essay have we crossed the bridge yet? joseph a. greenaway, jr. * columbia law school’s black law students’ association’s paul robeson conference it is great to come home to columbia, especially to low library, a venue i love, from my days as an undergrad as well as the many alumni functions hosted in these hallowed halls. it is a venue worthy of the impressive legal talent that sits before me. it is a particular delight to be your speaker tonight at the 16th annual paul robeson conference and gala. i would be remiss if i did not mention a few words about paul robeson, who was a truly remarkable man who deserves our admiration and respect. his list of accomplishments is legion. he graduated first in his class in high school in nearby somerville, new jersey. you heard from jade about robeson’s exploits at rutgers. few among us before or since could say that they were known to be of world class caliber in several pursuits—as a student, activist, athlete, actor, singer, orator, a noted linguist, and, of course, he was a lawyer. he was a person who spoke from the heart and spoke with clarity, conviction, and candor, no matter the cost, personal, political, or otherwise. sadly, the law was not kind to him. he attempted, as many people of color have since, to distinguish himself in the private practice of law, but prejudice was too strong. the turning point in his brief stint as a practicing lawyer occurred at the new york firm of stotesbury and miner. early in his tenure, his secretary refused to take dictation from him because he was a black man. he quit immediately and followed his other callings; otherwise, he may never have gained his world-wide acclaim. today, times have changed. as you leave columbia law school, the same indignity paul robeson encountered is unlikely to be your experience, but the question of the day will be in what form * judge, united states court of appeals for the third circuit. this essay began as remarks presented at the annual columbia law school paul robeson gala in april 2010. 2011 columbia journal of race and law 164 or way do those types of indignities persist? this year’s conference is focused on the implications of race in two mainstream areas of american life, the ability to exercise the right to vote and racial profiling and stereotyping in everyday settings—the workplace, educational institutions, and public settings. earlier today, the panelists brought to bear the many ways that race remains ubiquitous as a consideration in so many ways that we do not consciously consider on a daily basis. our right to vote, which is constitutionally protected, is not impregnable. federal law and many state laws present myriad scenarios, including, as discussed earlier, one’s status as a felon, incarcerated or not, which may inhibit or terminate one’s ability to vote. the other panel discussed stereotyping and racial profiling in a way that evidenced how race continues to be a factor that those in positions of power or authority continue to invoke and employ as a means to differentiate between and among people, generally to the detriment of people of color. this evening i wanted to continue today’s conversation about perceptions of race in our societal discourse. as with most attempts to delve deeper into this subject matter, the past provides important insight. last week, david remnick’s book, the bridge, was published.1 it is a book ostensibly about the life and rise of our president, barack obama. the bridge is a reference to the bridge in selma, alabama where civil rights demonstrators were violently attacked by state troopers on march 7, 1965 on their way to montgomery. you have heard the historical reference to that day as bloody sunday, one of the turning points in the civil rights movement because the event was captured on film and brought into the homes of america. like bull conner’s dogs and fire hoses that were set upon children in downtown birmingham, those images of bloody sunday created visceral reactions and indelible impressions on our collective psyche. although deterred that day, the marchers, invoking the rule of law, eventually prevailed and were permitted to complete their historic march to montgomery. that confrontation galvanized our nation and helped lead to the passage of the voting rights act2 later that year. one of the participants in that march was john lewis, then a student leader, now the respected and venerable congressman. during the festivities relating to president obama’s inauguration, 1  david remnick, the bridge: the life and rise of barack obama (2010). 2  voting rights act of 1965, pub. l. no. 89-110, 79 stat. 437 (codified as amended at 42 u.s.c. §§ 1973–1973aa-6 (2006)). 165 have we crossed the bridge yet? vol. 1:1 when asked to comment on the historic significance of the impending inauguration, congressman lewis commented that barack obama is what comes at the end of that bridge in selma. it is a powerful, yet intriguing, metaphor that is susceptible to many interpretations. is having an african american president reaching the promised land? is he what we, as african americans, have hoped for in our quest for freedom? is president obama the proverbial pot of gold at the end of the rainbow? regardless of the interpretation one adheres to, president obama has changed the way we, as african americans, look at ourselves and likewise how we are perceived by others, both at home and abroad. our past in america has told us that we, as african americans, cannot be confident about what any one accomplishment means going forward. throughout much of our existence as african americans, we have had to endure countless barriers—physical, psychological, and legal. this phalanx of barriers have kept us from the true enjoyment of all that america has to offer. indeed, when our country was literally fighting for its life, during the revolutionary war, it is clear that we were not intended to enjoy the benefits of citizenship. at the nascent stage of our nation, crispus attucks and the other patriots lost their lives in our collective quest for freedom. the quest was ultimately achieved but not for all of us. the constitution mentioned nary a word about us, africans in the americas, but the 3/5 clause made it crystal clear what was in store for us: an existence conceived by law as property not human beings. despite dred scott,3 winning the civil war, and the passage of the civil war amendments surely, we thought, would lead to both actual and legal freedom, but we know that as our union matured, what had started as an era of participation in the highest forms of government, just after the civil war, just as quickly ended with reconstruction. no longer did we, or could we, occupy the highest seats in government. vagrancy laws, poll taxes, and jim crow insured that it would be one hundred years before another african american served in the senate of the united states and decades before another african american served in the house. even the modern civil rights movement, which came about because of the sacrifices of countless americans of all hues stepping forward, did not provide us with the freedom we desired. in the last fifty years, myriad laws have been passed, some effective, some not. yet few believe we have reached our collective goal. 3  scott v. sandford, 60 u.s. 393 (1857). 2011 columbia journal of race and law 166 since the 1960s our elders have continuously employed the phrase i never thought i would live to see the day when: a black would be on the supreme court; a black senator would serve in the united states senate again; a black astronaut would participate in a space mission; a black would become ceo of a fortune 500 company; a black president would be appointed to an ivy league school; a black would serve in the cabinet of the president of the united states. and now, of course, who among us a decade ago, or even five years ago, would have imagined that a black man would serve in our lifetime as president of the united states? all of us today have experienced at least some of that feeling of wonder when we witnessed one or more of these events, which brings me back to my premise. is achieving election to the presidency now reaching our promised land? of course, as with any conundrum, the issue is how you define your terms. is it the promised land that martin luther king, jr. mentioned in his famous speech, that feeling as if we are a seamless part of the american mosaic or is it more tangible? is it the feeling, the understanding that the promised land is reaching or becoming an america where we share in the american dream equally, we access that dream equally, and we enjoy that dream equally. there are those who say the promised land represents those tangible rights that came about as a result of the civil rights movement—the voting rights act,4 the civil rights act,5 the fair housing law6 and the like. there are still others who believe that despite progress, there is far to go. i stand with those sharing that view. what has become clear to me is that the bridge metaphor presents an interesting dichotomy for america. does the bridge represent a chapter in american history of racial divisiveness and prejudice which is now over? can we finally stop having the conversation on race? or is the bridge and president obama’s walk over the bridge symbolic of a huge step to be sure but with work left to be done? undoubtedly, there are those who believe the talk of bias and discrimination should now cease. after all, we have an african 4  42 u.s.c. §§ 1973–1973aa-6. 5  civil rights act of 1964, pub. l. no. 88-352, 78 stat. 241 (codified as amended at 42 u.s.c. § 2000a et seq. (2006)). 6  fair housing act of 1968, pub. l. no. 90-284, 82 stat. 73, 81-90 (codified as amended at 42 u.s.c. §§ 3601-3631 (2006)). 167 have we crossed the bridge yet? vol. 1:1 american president and an african american attorney general. if our country has these officials serving in office, how could we have a problem? of course, recent events show the folly of this perspective. our president is among the most erudite persons to ever occupy the oval office. his academic achievement is beyond compare. he is the author of two extraordinary best sellers, yet within months of occupying 1600 pennsylvania avenue, he was caricatured in a major national newspaper as a monkey. several weeks ago, ironically enough, the aforementioned congressman lewis, was called the nword in public for committing the dastardly act of casting a vote in congress to aid millions of people. another legislator endured a vile attack and was spat upon while walking to the capitol. are we there yet? i think not. times have never been more challenging. we cannot be complacent. chief justice roberts stated in the seattle school case in 2007 that ―[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.‖7 wish that it was that simple. we know it is not. you and your generation of lawyers must fight the complacency that suggests the bridge represents the end game and that having attained the presidency, the work is now done. all of our experiences, everything we’ve heard here today, tells us in no uncertain terms that the work is not done. what can you do? what should you do? what is my entreaty to you? fight complacency! get involved! yes, try public service, do for others, donate your time and money, but most important, i implore you please do not think or believe i got mine. i got my columbia degree. i’m okay. remember what the experience of our forefathers has taught us the accomplishment of any individual, while laudable, does not mean we’re done. the metaphor of the bridge can only mean hope because there is no promised land, there is no real freedom until we all cross the bridge. thank you. 7  parents involved in cmty. schs. v. seattle sch. dist. no. 1, 551 u.s. 701, 748 (2007). signifying on passing: (post) post-racialism, (post) postmodernism, and (post) post-marxism christian b. sundquist * the social and legal relevance of racial passing1 appears to be fading as we ostensibly enter a color-blind, post-race era. during the “age of obama,” the notion of passing in our multi-racial society seems to many to be antiquated and unnecessary. as the nation has moved beyond state-sanctioned racial discrimination, many believe that the country also has moved beyond the need for a legal dialogue on racial passing and ambiguity. this “retreat from race,”2 exemplified in part by the apparent declining significance of racial passing, proclaims that the state no longer should consider race when interpreting the law or incorporating democratic values of equality and opportunity. this essay, however, argues that the continued phenomenon of racial passing can be utilized as a conceptual vehicle to destabilize and de-legitimatize the post-racial agenda. the continuing relevance of racial passing also underscores the significance of the lessons of marxism. after all, the concept of “race,” and therefore the existence of racial passing, traces its lineage *  associate professor of law, albany law school. j.d., georgetown university law center. i thank donna young, maria grahn-farley, lenese herbert, peter halewood, nancy ota and areto imoukhuede for their invaluable advice during the preparation of this essay. i also am especially grateful to my colleague anthony paul farley for organizing the post-racialism panel at the third national people of color conference that led to this publication opportunity, as well as for his continued guidance and support. an earlier draft of this essay was presented at the third national people of color conference, held in september 2010 at seton hall law school. 1  randall kennedy, racial passing, 62 ohio st. l.j. 1145, 1145 (2001) (defining passing as “a deception that enables a person to adopt certain roles or identities from which he would be barred by prevailing social standards in the absence of his misleading conduct”). 2  sumi cho, post-racialism, 94 iowa l. rev. 1589, 1589 (2009). 483 signifying on passing vol. 1:3 to the capitalist condition of racialized class distinctions and cultural hegemony (e.g., the white cultural norm). the post-racial agenda seeks to mask the commodification of persons, obscuring the salience of race and discrimination.3 thus, the cry for a post-racial america is the latest attempt to lure society into a false sense of class and racial transformation. the continued presence of racial passing may lift the veil from our eyes to the conditions of racial and class exploitation that govern everyday life. this essay will proceed in three parts. the first section argues that the particular weltanschauung4 of post-racialism has obfuscated the continuing relevance of racial difference and conflict. the post-racial model seeks to skew the proletariat perception of social reality by imposing a false-consciousness that conceals existing relations of racial subordination and exploitation. in so doing, post-racialism strives to reject its theoretical other: marxism. however, the failings of post-racialism as a worldview are traced directly to its inability to refute the continuing salience of class and racial conflict. the second part of the essay explores the similarities and differences between the post-racial model and the classic liberal colorblind model. the third part of the essay concludes that the continuing relevance of racial passing should be utilized to reveal and disrupt the post-racial agenda. i. post-racialism and (post) post-marxism the strident cry of post-racialism is a call to a post-marxist and post-postmodern dialectic. applying a post-racial perspective, the fundamental notions of classical marxism—historical materialism, the dialectical process, antinomianism, class conflict, false consciousness and hegemonic control—are outmoded and unworkable in a world beyond race.5 similarly, the themes of postmodernism—post-structuralism, deconstruction and relative meaning and contextual morality—are antithetical to the post-racial 3  see, e.g., anthony p. farley, the colorline as capitalist accumulation, 56 buff. l. rev. 953, 956 (2008). 4  weltanschauung can be defined as a comprehensive world view, or the fundamental cognitive orientation of an individual or society encompassing all of that individual’s or society’s knowledge and point-of-view, including, but not limited to, cultural, philosophical, and ethical views. gary b. palmer, toward a theory of cultural linguistics 114 (1996). 5  see generally eric engle, a primer on left legal theory: realism, marxism, cls and pomo, 3 the crit: a critical legal stud. j. 64, 70-73 (2010) (review of basic marxist history and theory). 2012 columbia journal of race and law 484 view.6 post-racialism, thus, represents a shift from theories of modernity phrased in terms of class conflict (such as marxism), as well as a distancing from post-modernity theories that purport to transcend universalism and objective morality (such as postmodernism). yet, far from setting forth a novel and transformational perspective, post-racialism attempts to coyly resurrect the past model of classical liberalism. the post-racial model argues that the world has moved beyond racial and class conflict at the meta-level, and as such, society and law should strive to respect individual liberty by adopting a colorblind/post-race and classblind/post-class orientation.7 the gaze returns to the liberal rights of the individual citizen—freedom to contract, control of property, competition uninhibited by “affirmative” measures, and equal opportunity— while failing to interrogate past discrimination and past accumulations of wealth. nonetheless, the core lessons of marxism that speak to the salience of class conflict and the concepts of hegemony and false consciousness remain instructive to any discussion of class and racial inequality. the divisions between rich (bourgeoisie) and poor (proletariat) and white and non-white remain significant.8 despite the comforting appeal of post-racial rhetoric, america has not moved “beyond race” or the need for race-based legal decisionmaking and remedies. even with the eradication of state-sanctioned racial discrimination, american society has not outlived the value of racial passing as a vehicle for understanding racial borders and inequality. race continues to control outcomes, social position, and access to legal rights.9 race and identity performance continue to regulate our interpretation of social space and cultural meaning. the call to a post-racial understanding of the nature of law and society is premature at best, and a disingenuous scheme to normalize racial subordination and class exploitation at worst. ii. post-racialism and the color-blind model the current charge of post-racialism is subtly distinct from the conventional liberal notion of colorblindness. the colorblind 6  see generally id. at 75-78 for a brief review of postmodernist theory. 7  cho, supra note 2, at 1598-99. 8  brown et al., whitewashing race: the myth of a colorblind society 13 (2003). 9 id. at 13-15. 485 signifying on passing vol. 1:3 ideal envisions a world where race and color must be disregarded in the application of social and legal rules, given the establishment of civil rights and equal opportunities for all individuals.10 the model holds that race is irrelevant to social policy and constitutional interpretation due to the eradication of formal de jure racial barriers to political participation. the distribution of social and economic resources, therefore, should be governed not by remedial racial considerations, but rather by liberal notions of meritocracy, equality and individualism.11 the consequences of post-racialism are strikingly similar to those of the colorblind model of adjudication. under both worldviews, the law is not justified in adopting race-regarding remedial measures, upholding affirmative-action plans, or otherwise considering race as a part of efforts to eliminate racial inequality. to do otherwise would violate core constitutional values of equality and individualism, either because as a jurisprudential matter the law must be rigidly colorblind or because society has simply progressed beyond the idea of race. however, post-racialism is distinct from the colorblind model in the path it chooses to rationalize the departure from racebased considerations. whereas the colorblind model justifies its rejection of race on strictly normative grounds, the post-racial movement emphasizes the descriptive social “reality” of racial transcendence and universalism.12 post-racialism is also signified by an undercurrent of intellectual exhaustion and impatience regarding dialogues on race and racism. any discourse on continuing racism and inequality in society is seen as the “old school” civil rights community trumpeting of an eclipsed racial and cultural era.13 the discussions are considered passé and obsolete. the post-racial call to silence such racial dialogues assumes that race is devoid of social and legal meaning as a political construct. 10  cho, supra note 2, at 1620-21 (discussion of post-racialism in the roberts court). “in the post-racial courts, the complex machinations of the courts’ evidentiary burden sleight-of-hand achieves the racial hegemony sought on matters of racial jurisprudence with far greater effectiveness. chief justice roberts practiced his moral-equivalence soundbyte to perfection in his parents involved opinion comparing jim crow racialism with civil-rights racialism, writing ‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’ ” id. at 1620 (quoting parents involved v. seattle sch. dist., 551 u.s. 701, 748 (2007)). 11  id. at 1601-02. 12  id. at 1597-98. 13  id. at 1593. 2012 columbia journal of race and law 486 iii. racial passing and post-racialism following the post-racial theory, the contemporary relevance of racial passing is assumed to be nil. in a world that is beyond race and racial borders, there clearly would be no material or psychological need for transgression. however, scores of anecdotal, literary, and historical evidence demonstrate the enduring relevance of racial passing. racial passing, even in its traditional iteration as the conscious and voluntary transgression of social boundaries in order to escape racial discrimination, remains prevalent in our society. speaking from my own personal experiences, a former colleague of mine from private practice, “rogelio,” regularly and consciously passes as white in order to avoid perceived and real workplace racial discrimination. “rogelio” takes pains to actively conceal his latino heritage from his employer and the legal community at-large by employing a variety of covering measures.14 he accomplishes his goal of passing by using a more “white” sounding first name than his given south american name (e.g., “roger”), by intentionally mispronouncing his last name of south american origin to sound more “american,” by sanitizing his resume to remove any telling references to his non-white background, by refusing to teach his daughter the spanish language, and by not interacting with other lawyers of latino heritage. when i asked him why he felt it was necessary to engage in this practice, he explained that he was afraid that the racial baggage of being nonwhite—and concomitant risk of racial discrimination—would negatively impact his chances of becoming a partner in a large law firm. as angry as i was with “rogelio’s” passing, his evaluation of the likelihood of racial discrimination was rational. the frustration that i experienced over “rogelio’s” passing conforms with the historical understanding of passing as a negative and dishonest betrayal of one’s “true” and singular racial position in society. the voluntary concealment of one’s racialized, non-white background in order to become “race-less” and free from the burden of race—to become “white”—often arouses hostility and outrage by both white and non-white observers. by destabilizing the legitimacy of racial categories and hegemony, the phenomenon of passing is appropriately seen as a threat to racial privilege and separation. paranoia about racial passing and the “white negro,” for 14  see kenji yoshino, covering, 111 yale l.j. 769, 772 (2002) (“covering means the underlying identity is neither altered nor hidden, but is downplayed.”). 487 signifying on passing vol. 1:3 instance, fueled segregationist and anti-miscegenist legal policy during the de jure period of racial discrimination.15 the classic passer is vilified not only by formal racists but also by the larger society. passing is viewed as a costly betrayal of shared history, ancestry, family, and identity ties.16 the passer is seen as turning his back to his own family and racial community, and the psychic costs of such subterfuge are seen as far outweighing any temporary gains.17 this theme of passing is thoroughly explored throughout literature and the media.18 however, the notion of racial passing need not be restrictively defined in terms of its traditional iteration. a performative and interpretive construction of passing is invaluable for demonstrating the continuing relevance and contestation of race and identity. such a construction recognizes that passing demands an “appreciation . . . that all identities are processual, intersubjective, and contested/contestable.”19 the medium of racial passing “highlights the performative scaffolding fundamental”20 to the 15  kennedy, supra note 1, at 1157-58. 16  id. at 1158-59. 17  id. 18  see, e.g., nella larsen, passing (1929); nella larsen, quicksand (1928); danzy senna, caucasia (1998); philip roth, the human stain (2001); imitation of life (universal pictures 1934). i have personally experienced such traditional forms of passing in my life. as the child of a lighter-skinned african-american mother and a white swedishamerican father, i am capable of being labeled with various racial constructions. my family and the predominantly african-american community that i was raised in as a young child taught me many lessons regarding the dangers of passing. one of my earliest memories involved enrolling in a new school during the second-grade and being asked by a school administrator whether i wanted to check “white” or “black” as my race. my mother said it was up to me to choose and so i chose “white.” my reasoning was, since i had always been black in the past, i wanted to see what being white was like for a change! while my mother was shocked by my decision, i mostly remember the emotional reaction of my usually stoic grandfather once i returned home from school. when told that i decided to try being white for a school year, my grandfather was brought to tears by my naïve response to the school form. while i do not recall specific statements from that meeting, i will forever carry with me the sense (wrongly or rightly) that passing is a vicious betrayal of your family and roots. 19  michele elam, passing in the post-race era: danzy senna, philip roth, and colson whitehead, 41 afr. am. rev. 749, 750 (2007) (quoting john l. jackson & martha s. jones, passed performances: an introduction, 15 women & performance: j. feminist theory 9, 14 (2005)). 20  id. 2012 columbia journal of race and law 488 perpetual negotiation and structuring of race, and the manner in which race remains contextually and politically relevant. rather than providing a path to a post-racial nirvana, the phenomenon of passing demonstrates the continued viability of notions of race and racism. in this way, passing subverts the current system of racial categorization and hierarchy.21 the perceived need to transgress social mores in order to become race-less demonstrates that the world is not beyond race. passing is not accessible only to the racially ambiguous. moving away from the perception of passing that is tied strictly to phenotypical racial confusion introduces the possibility to recognize passing as a “social heuristic” through which to understand the performative nature of race and identity.22 the determination of who can pass, for what, when, and where depends as much on “acculturated perception”23 and racial context as interpreted phenotype. as professor elam observes: what constitutes a supposedly ambiguous body in one time and place may not in another; ambiguity cannot, in other words, be treated as a transhistorical or positivist given; it is an attribution resulting from an acquired and variable interpretative competency.24 by restricting our understanding of passing to a few visual exemplars of the “ambiguous body,” we adopt the inaccurate assumption that race “is always optically available and decipherable.”25 the meaning we attribute to race is continually negotiated. we all—white and non-white—perform race. we all also regularly interpret race and evaluate the racial performances of others. the concept of performative passing illustrates the possibility of a person to disrupt the racial schemas of others by knowingly or unknowingly manipulating racial cognitive cues. the question of passing, and its decommodification of the raced body, is thus always tied to the larger social discussion of racial borders and meaning. 21  id. at 762 (“those who can pass not only inherit the legacies of mixed-race heritage; they put that heritage in practice in a way that marks the transgression of, and thus lays bare, the paradox of unequal entitlements in the land of equality.”). 22  id. at 750. 23  id. at 751. 24  id. 25  id. 489 signifying on passing vol. 1:3 iv. conclusion the social reality of race—of racial discrimination, hegemony, and passing—is blurred by post-racialism. we—the proletariat—nonetheless retain the power to influence the terms of our consciousness26 by re-incorporating the lessons of marxism into the discussion on race. the existence of racial passing is one vehicle through which we can destabilize the false representation of a postracial nirvana. the perceived need to pass into imaginary racelessness (e.g., whiteness) demonstrates the continued existence of racial subordination as well as the relative and subjective meaning of race itself. an application of marxist principles can lift the veil from the false reality—of being beyond race, beyond racism, and beyond domination—imposed by post-racialism. 26  see, e.g., antonio gramsci, letter 128, in gramsci’s prison letters 217-18 (hamish henderson trans., 1998); gramsci, letter 129, in id. at 214-17 (discussing hegemony by consent of the proletariat and alluding to the possibility of the oppressed influencing their reality). post race posthaste: towards an analytical convergence of critical race theory and marxism donna e. young * introduction viewing united states antidiscrimination law through a marxist lens helps to reveal weaknesses in the american approach to combating racism. although marxist theory is salient to the perpetual problem of american racism, it has been essentially ignored in the american approach. consequently, title vii jurisprudence has floundered in its lack of attention to some basic marxist principles that would require an examination of capital from the perspective of those whose bodies and labor are owned and consumed through the process of capital accumulation. as marxism reminds us, looking at discrimination from the perspective of the worker reveals that the myriad forms of discrimination experienced in and beyond the workplace are part of a system of subordination that is: (i) supported by faith in free markets, and (ii) not amenable to the narrowly-drawn parameters of the american anti-discrimination framework. the framework, however, does fit nicely into a view of discrimination from the perspective of those put in the position of defending their conduct (the employer, the capitalist, etc.) because it treats discrimination as an uncommon, solitary, or purposeful act done by someone to *  professor of law, albany law school. i would like to thank anthony farley for inviting me to participate in the symposium, postmarxism, post-racialism & other fables of the dispossession at the third national people of color legal scholarship conference, sept. 9-12, 2010; adam staier for his research assistance; nancy ota for discussing postracialism and marxism with me before my thoughts materialized into an essay; and peter halewood for our discussions while the essay was materializing. a special thanks to isaac young and lucas young who understand well the hazards of doing anything posthaste. 2012 columbia journal of race and law 500 someone else, not as a regular, systemic and necessary element of a capitalist system. african americans and other people of color seek redress for their racial injuries. however, if we are living in a post-racial society, one that is blind to race, then widespread redress makes no sense since widespread discrimination allegedly is a thing of the past. therefore, it is worth asking, “if racial justice is about remembering racial injury, ha[s] our law made that memory impossible, erased by official color-blindness?”1 this question has been central to the study of law among critical race theorists since critical race theory’s (crt) inception. therefore, an analytical convergence of crt and marxism should help disentangle the morass that is antidiscrimination law. the connection between marxism and crt can be appreciated by examining the limitations of civil rights laws in alleviating some of the most pressing social and political stresses on communities of color today. and yet, the connection seems to get lost beneath the din of those who claim that we are experiencing our first post-racial moment in a larger post-marxist epoch. the aim of this essay is to examine how a convergence of marxism and crt might enhance a critique of the u.s. supreme court’s interpretation of race discrimination under title vii of the 1964 civil rights act.2 i. color-blindness in post-racial rhetoric examination of the conservative judicial activism of the past few decades makes it apparent why title vii has had little impact in addressing continuing employment discrimination and inequality. however, it is not simply conservative judges who are to blame for title vii’s lack of success. it is the structural nature of racial oppression itself that makes title vii an impotent tool in dismantling structures of oppression. this point is missing in popular depictions of the united states as entering a post-racial age. in the years leading up to the 2008 presidential election and beyond, it was not uncommon to see, read, or listen to discussions about the new “post-racial” america. newspaper and magazine headlines, blog entries, and television and internet news reports were full of discussions about what barack obama’s presidency meant for 1  peter halewood, laying down the law: post-racialism and the deracination project, 72 alb. l. rev. 1047, 1048 (2009). 2  civil rights act of 1964, 42 u.s.c. § 2000e-2(a) (2006). http://web2.westlaw.com/find/default.wl?referencepositiontype=t&docname=42uscas2000e-2&rp=%2ffind%2fdefault.wl&sv=split&utid=1&rs=wlw11.01&db=1000546&tf=-1&findtype=l&fn=_top&mt=lawschoolpractitioner&vr=2.0&referenceposition=sp%3b8b3b0000958a4&pbc=8f037e64&tc=-1&ordoc=0361653854 501 post race posthaste vol. 1:3 americans’ apparent evolving racial attitudes.3 the term post-racial encompasses the idea that if racial attitudes today are the same as they were even in the last few decades, then it would have been impossible to even imagine a president of the united states of america being of african origin. the argument is that because barack obama was elected by a comfortable majority of voters, then surely the united states’ racist legacy can be confined to the history books. according to this view, the united states finally has changed from a place where racial slavery and segregation were legally sanctioned, commonplace practices to a place in which the american people could put aside their racial prejudices and unite to elect a president of african origin. what other country in the west could have imagined the election of a black president? barack obama himself made mention of the historical significance of his improbable story4 and the great capacity of the american people to transcend informal racial barriers that only recently replaced formal racial barriers. even before his presidential campaign, the then-senator not only detected a note of change in the air but also was able to capitalize on the perception that the american people were “ready” to transcend their race-conscious beliefs and appealed to the desirability of a post-racial america. in one of the most celebrated parts of his speech at the 2004 democratic national convention in boston, the speech that helped propel him onto the national political stage, he said, “there’s not a black america and a white america and latino america and asian america; there’s the united states of america.”5 his campaign 3  see, e.g., wajahat ali, no racism in obama’s post race america, huffington post, july 28, 2009, http://www.huffingtonpost.com/wajahatali/no-racism-in-obamas-post_b_245978.html; uzodinma iweala, race still matters, l.a. times, jan. 23, 2008, available at http://articles.latimes.com/ 2008/jan/23/opinion/oe-iweala23; sarah netter, racism in obama’s america one year later, abc news, jan. 27, 2010, http://abcnews.go.com/wn/ obama/racism-obamas-america-year/story?id=9638178. 4  in several of his campaign speeches, barack obama referred to the improbability of his journey to the white house. for example, at one of his stops in iowa, he said, “i never expected to be here. i always knew this journey was improbable.” sharon cohen, barack obama: an ‘improbable’ journey into history, usa today, nov. 1, 2008, available at http://www.usa today.com/news/politics/2008-11-01-2229444245_x.htm. 5  see tim wise, colorblind ambition: the rise of post racial politics and the retreat from racial equity, red room writer profile blog (june 18, 2010, 10:31 am), http://www.redroom.com/blog/tim-wise/colorblindambition-the-rise-post-racial-politics-and-retreat-racial-equity (arguing that, “though one might welcome such a statement were it offered in the future and aspirational tense—as a heartfelt plea for true equality—obama proclaimed it http://www.huffingtonpost.com/wajahat-ali/no-racism-in-obamas-post_b_245978.html http://www.huffingtonpost.com/wajahat-ali/no-racism-in-obamas-post_b_245978.html http://articles.latimes.com/%0b2008/jan/23/opinion/oe-iweala23 http://articles.latimes.com/%0b2008/jan/23/opinion/oe-iweala23 http://abcnews.go.com/wn/%20obama/ http://abcnews.go.com/wn/%20obama/ http://www.redroom.com/blog/tim-wise/colorblind-ambition-the-rise-post-racial-politics-and-retreat-racial-equity http://www.redroom.com/blog/tim-wise/colorblind-ambition-the-rise-post-racial-politics-and-retreat-racial-equity 2012 columbia journal of race and law 502 made very little mention of race and his candidacy was constructed in terms that drew as little attention as possible to his own race, thus encouraging the perception that the united states had entered a post-racial era. it is this “color-blindness”6 that comes to mind with the term post-racial. yet the term is not without political ambiguities and is therefore impossible to define. for liberals, the term holds hope that race is no longer a determining factor in how people live their lives and that discrimination is only a remnant of a bygone era only sporadically practiced by individual racists but that can nonetheless be cured by resort to civil rights laws. for conservatives, the term might mean that remedies such as affirmative action are no longer necessary (if they ever were) and that government “special” treatment of minorities can end.7 like the meaning of racism itself, the term post-racial will mean something different depending on political, cultural and socioeconomic factors. however, for both liberals and conservatives alike, the term means that “race” and color no longer have any social relevance.8 if, however, the term is meant to describe a in the descriptive and present tense. in so doing he traded intellectual honesty for easy and predictable ovation. after all, 2004 was the same year that research from mit and the university of chicago found that job applicants with ‘white’ names were fifty percent more likely to be called back for an interview than those with ‘black’ names, even when all their qualifications were indistinguishable. and with black and brown unemployment standing at double the white rate, even as the new upstart from chicago poured forth rhetoric professing national unity (and with the median white family possessing eight to ten times the net worth of the median black or latino family), it should have been apparent that obama was engaged in political science fiction rather than the description of sociological truth.”). 6  see neil gotanda, a critique of “our constitution is color-blind,” 44 stan. l. rev. 1, 1 (1991) (arguing that the u.s. supreme court’s use of colorblind constitutionalism—a collection of legal themes functioning as a racial ideology—fosters white racial domination). 7  see jeffrey toobin, comment: answers to questions, new yorker, july 27, 2009, at 19-20 (discussing the effect that the obama election has had in supporting the argument that the united states has now leveled the playing field and no longer requires racial remedial measures); see also lawrence auster, what is post-racial america?, view from the right (feb. 25, 2008, 10:56 am), http://www.amnation.com/vfr/archives/010000.html (arguing against preferences for african americans). 8  see sumi cho, post-racialism, 94 iowa l. rev. 1589, 1594 (2009) (defining post-racialism as reflecting “a belief that due to significant racial progress that has been made, the state need not engage in race-based decisionmaking or adopt race-based remedies, and that civil society should eschew race as a centralizing principle of social action”). http://www.amnation.com/vfr/archives/010000.html 503 post race posthaste vol. 1:3 current reality in the united states, then it falls far short of that reality. in fact, in the united states, it likely means nothing at all. from a cursory examination of conservative and liberal websites, it appears that no one believes that president obama’s election has transformed the united states into a post-racial utopia or that racism is dead.9 moreover, a brief jaunt through supreme court civil rights decisions will reveal that the supreme court has been relying on the same kind of post-racial understanding since deciding the civil rights cases10 and plessy v. ferguson11 more than a century ago, and thereby undermining any particular salience of postracialism today. ii. post-racial discourse and america’s antidiscrimination framework the requiem for marxism spurred by the collapse of the soviet union and china’s increasing turn to capitalism also has been a familiar theme. this insistence on a post-marxist moment, however, is also premature given marxism’s continuing relevance to contemporary discussions of oppression. the notion that we live in a post-racial reality is troubling, as very little, in terms of negative racial stereotypes and racial equality, has changed in the years before and since obama’s candidacy. first, there is evidence that whites, especially whites associated with the tea party movement, still harbor negative attitudes towards african americans and latinos. a recent study of racial attitudes of tea party members illustrate these trends: 9  however, the perception of who is a victim of racism differs greatly depending on political allegiance. on conservative blogs, one is more likely to see whites as portrayed as victims of racism, while liberal blogs portray racial, ethnic and religious minorities as the favorite targets of racists. see marisol lebron, obama and myths of racial democracy, north american congress on latin america (nov. 17, 2008), https://nacla.org/node/5229; see also bob vandehey, rajjpuut’s folly: race-baiting obama and naacp worsen america’s race relations, tea party patriots (july 22, 2010, 6:00 pm), http://www.teapartypatriots.org.ning.com/profiles/blogs/rajjpuuts-follyracebaiting; joel anderson, burying post-racial, the american prospect (july 28, 2010), http://prospect.org/cs/articles?article=burying_post_racial; netter, supra note 3. 10  civil rights cases, 109 u.s. 1 (1883). 11  plessy v. ferguson, 163 u.s. 537 (1896); see mario l. barnes, erwin chemerinsky & trina jones, a post-race equal protection?, 98 geo. l.j. 967, 969 (2010) (demonstrating that the supreme court attempted “to negate the importance of race, alternatively finding it to be either of no moment or a legitimate basis to segregate”). https://nacla.org/node/5229 http://teapartyorg.ning.com/profile/bobvandehey http://prospect.org/cs/articles?article=burying_post_racial 2012 columbia journal of race and law 504 approximately 45% of whites either strongly or somewhat approve of the [tea party] movement. of those, only 35% believe blacks to be hardworking, only 45% believe blacks are intelligent, and only 41% think that blacks are trustworthy. perceptions of latinos aren’t much different. while 54% of white tea party supporters believe latinos to be hardworking, only 44% think them intelligent, and even fewer, 42% of tea party supporters believe latinos to be trustworthy. when it comes to gays and lesbians, white tea party supporters also hold negative attitudes.12 moreover, these stereotypes and predispositions influence the public view of president obama himself. as one report suggests, “the associative link between racial predispositions and obama’s position as the first black presidential nominee was so strong that it virtually ensured these [negative] attitudes about african-americans would strongly influence the public’s assessments of him regardless of how hard he tried to deactivate the salience of race.”13 second, african americans and latinos are still disproportionately at the bottom of all economic and social wellbeing indicators in the united states.14 for example, in figures measuring salaries and unemployment, african americans and latinos continue to fall behind.15 they are disproportionately among those who have lost their homes and mortgages in the 12  christopher parker, univ. of wash. inst. for the study of ethnicity, race & sexuality, 2010 multi-state survey on race & politics (2010), available at http://depts.washington.edu/uwiser/racepolitics. html. 13  michael tesler & david o. sears, is the obama presidency post racial? evidence from his first year in office, in obama’s race: the 2008 election and the dream of a post-racial america 142 (2010). 14  see news release, bureau of labor statistics, u.s. dep’t of labor, usual weekly earnings of wage and salary workers—third quarter 2010 (oct. 19, 2010), available at http://www.bls.gov/news.release/archives/wkyeng _10192010.htm; see also bureau of labor statistics, u.s. dep’t of labor, the employment situation—march 2011 (2011), http://www.bls.gov/ news.release/pdf/empsit.pdf (for unemployment rates); see also u.s. census bureau, money income of families—number and distribution by race and hispanic origin: 2007 (2010), available at http://www.census.gov /compendia/statab/2010/tables/10s0679.pdf (showing household incomes by race). 15  see, e.g., u.s. census bureau, supra note 14. http://www.bls.gov/news.release/archives/%20wkyeng_10192010.htm http://www.bls.gov/news.release/archives/%20wkyeng_10192010.htm http://www.bls.gov/news.release/pdf/ http://www.bls.gov/news.release/pdf/ http://www.census.gov/compendia/statab/2010/tables/10s0679.pdf http://www.census.gov/compendia/statab/2010/tables/10s0679.pdf 505 post race posthaste vol. 1:3 housing crisis.16 they are disproportionately the victims of crime,17 lag behind in educational achievement,18 and suffer disproportionately from ill-health and infant mortality.19 segregation in housing and public schools also continues unabated.20 can any of these problems be addressed through our current civil rights framework? clearly, the answer is no. focusing on the narrow issue of title vii’s prohibition against employment discrimination is instructive in order to demonstrate the falseness of “post-racialism” and to make clear that our current anti-discrimination laws fall far short of ending systemic oppression of minorities. title vii was not meant to, nor can it, address systemic oppression. it was designed to protect people 16  see raymond h. brescia, part of the disease or part of the cure: the financial crisis and the community reinvestment act, 60 s.c. l. rev. 617, 622-23 (2009) (examining the disparate impact of the sub-prime mortgage meltdown on communities of color); see also richard thompson ford, the boundaries of race: political geography in legal analysis, 107 harv. l. rev. 1841 (1994) (examining the persistence of racial housing segregation). 17  see dep’t of justice, fed. bureau of investigation, crime in the united states, 2009: murder victims by race and sex, 2009 (2010), available at http://www2.fbi.gov/ucr/cius2009/offenses/expanded_ information/data/shrtable_01.html. 18  u.s. census bureau, educational attainment by race and hispanic origin: 1970 to 2008 (2010), available at http://www.census. gov/compendia/statab/2010/tables/10s0224.pdf; see also gary orfield, the civil rights project, reviving the goal of an integrated society: a 21st century challenge, available at http://civilrightsproject. ucla.edu/research/k-12-education/integration-and-diversity/reviving-the-goalof-an-integrated-society-a-21st-century-challenge/orfield-reviving-the-goalmlk-2009.pdf (arguing that schools are more segregated today than fifty years ago). 19  marian f. macdorman & t.j. mathews, national center for health statistics, recent trends in infant mortality in the united states (2008), available at http://www.cdc.gov/nchs/data/data briefs/ db09.pdf (showing infant mortality rates by race). 20  see john iceland, u.s. census bureau, beyond black and white: metropolitan residential segregation in multi-ethnic america (2002), available at http://www.census.gov/hhes/www/housing/ housing_patterns/pdf/beyond_black_and_white.pdf (describing residential segregation patterns in which african americans continue to live in the most segregated neighborhoods); see also gary orfield, the civil rights project, schools more separate: consequences of a decade of resegregation (2001), available at http://civilrightsproject.ucla.edu/ research/k-12-education/integration-and-diversity/schools-more-separateconsequences-of-a-decade-of-resegregation/orfield-schools-more-separate2001.pdf (finding that segregated public schools follow patterns of housing segregation). http://www2.fbi.gov/ucr/cius2009/%20offenses/expanded_information/data/shrtable_01.html http://www2.fbi.gov/ucr/cius2009/%20offenses/expanded_information/data/shrtable_01.html http://www.census.gov/compendia/statab/2010/tables/10s0224.pdf http://www.census.gov/compendia/statab/2010/tables/10s0224.pdf http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/reviving-the-goal-of-an-integrated-society-a-21st-century-challenge/orfield-reviving-the-goal-mlk-2009.pdf http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/reviving-the-goal-of-an-integrated-society-a-21st-century-challenge/orfield-reviving-the-goal-mlk-2009.pdf http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/reviving-the-goal-of-an-integrated-society-a-21st-century-challenge/orfield-reviving-the-goal-mlk-2009.pdf http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/reviving-the-goal-of-an-integrated-society-a-21st-century-challenge/orfield-reviving-the-goal-mlk-2009.pdf http://www.cdc.gov/nchs/data/databriefs/%20db09.pdf http://www.cdc.gov/nchs/data/databriefs/%20db09.pdf http://www.census.gov/hhes/www/housing/%20housing_patterns/pdf/beyond_black_and_white.pdf http://www.census.gov/hhes/www/housing/%20housing_patterns/pdf/beyond_black_and_white.pdf http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/schools-more-separate-consequences-of-a-decade-of-resegregation/orfield-schools-more-separate-2001.pdf http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/schools-more-separate-consequences-of-a-decade-of-resegregation/orfield-schools-more-separate-2001.pdf http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/schools-more-separate-consequences-of-a-decade-of-resegregation/orfield-schools-more-separate-2001.pdf http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/schools-more-separate-consequences-of-a-decade-of-resegregation/orfield-schools-more-separate-2001.pdf 2012 columbia journal of race and law 506 from employment discrimination on account of their race, color, religion, sex or national origin.21 it arguably has achieved this objective only in rare cases where the courts have found that the claim fits nicely into the analytic framework of disparate treatment discrimination (requiring a wrongful behavior, a person who has been wronged, and a wrong-doer).22 the type of complaint that most people have will not fit within this very narrow framework and thus will not be considered discrimination at all.23 thus, “antidiscrimination law has . . . been ultimately indifferent to the condition of the victim.”24 as professor anthony farley has explained, today’s civil-rights statutes serve the same racepleasure functions as did yesterday’s segregation 21  civil rights act of 1964 § 703(a), 42 u.s.c. § 2000e-2 (2006). 22  moreover, title vii requires the wronged to produce evidence of discrimination or a circumstantial showing of discrimination that can always be explained away by some explanation as long as the explanation is not determined by the court to be a pretext for discrimination. see mcdonnell douglas corporation v. green, 411 u.s. 792 (1973), in which the court sets out the nature and order of the burdens of proof for plaintiffs and defendants. this shifting of burdens is known as the mcdonnell douglas burden-shifting framework used for cases relying on circumstantial evidence of purposeful discrimination. there are other theories of discrimination that are available under title vii, such as disparate impact theory, but given changes to the interpretation of title vii in a series of supreme court cases in 1989, subsequent amendments to title vii, sections 703(k)(1)(a), (b) and (c), and the supreme court’s 2009 decision, ricci v. destefano, 129 s. ct. 2658 (2009), it is more difficult than ever before for plaintiffs to succeed. thus, disparate impact causes of action have almost completely disappeared. see girardeau a. spann, disparate impact, 98 geo. l.j. 1133, 1143 (2010) (arguing that the robert’s court decision in ricci eviscerates statutory disparate-impact claims and unconstitutionally usurps congressional policymaking authority); see also cheryl i. harris & kimberly west-faulcon, reading ricci: whitening discrimination, racing test fairness, 58 ucla l. rev. 73, 81 (2010) (arguing that a “close reading of ricci reveals how not all claims of race discrimination are evaluated on a level playing field. although the holding in ricci is not unambiguous[,] . . .ricci reflects a doctrinal move towards converting efforts to rectify racial inequality into white racial injury.”). 23  later supreme court decisions undermined the mcdonnell douglas framework. see trina jones, anti-discrimination law in peril?, 75 mo. l. rev. 423, 424 (2010) (arguing that these later cases “made it extraordinarily difficult for plaintiffs to win employment discrimination cases based on circumstantial proof”). 24  alan d. freeman, legitimizing racial discrimination through antidiscrimination law: a critical review of supreme court doctrine, in critical race theory: the key writings that formed the movement 29 (k. crenshaw et al. eds., 1995). 507 post race posthaste vol. 1:3 statutes. the segregation statutes announced to the world that blacks were inferior. the attendant black pain was integral to the pleasure of whiteness. our civil-rights statutes today serve to legitimate, not prevent, discrimination. discrimination has continued, more or less unabated, despite the presence of these civil-rights statutes. our civilrights statutes serve mainly to delegitimize any claims that discrimination continues. this last task they do wellso well that discrimination today is spoken of only as a vestigial remnant of yesterday, not as the very pulse of morning. thus, today’s civil-rights statutes, like yesterday’s segregation statutes, announce to the world that blacks are inferior. race works in mysterious ways. our civil rights statutes are designed from a “perpetrator perspective,” not from a victim perspective . . . . the victim perspective focuses on the problem of inequality, while the perpetrator perspective focuses on the problems of fault and causation. the victim lives in a toxic ocean of discrimination, but the perpetrator sees only the nets as problematic. by focusing on the problems of fault and causation, the perpetrator perspective guarantees that discrimination that is not located, litigated, and proved in a court of law will be protected and legitimated as non-discrimination. thus, most antiblack behavior is legitimated as non-discrimination by today’s civil-rights statutes.25 accordingly, anti-discrimination laws, at best, have been ineffectual, and at worst, have encouraged the perpetuation of the very discrimination they were intended to prevent. current declarations in favor of a post-racial utopia intensify arguments already critical of civil rights laws and call into question the very need for such laws. professor peter halewood contends that “[s]elf-congratulation on having achieved a post-racial society is both premature and suspect, for encoded in claims of post-racialism is a sort of white triumphalism, a sense that race and racism have 25  anthony p. farley, the poetics of colorlined space, in crossroads, directions and a new critical race theory, 121 (francisco valdes et al. eds., 2002). 2012 columbia journal of race and law 508 finally been delegitimized as the basis for black grievances.”26 moreover, the sense that racism has declined or indeed disappeared seems to have influenced the ways that courts understand discrimination claims. professor trina jones argues that “the tendency of courts to summarily dismiss employment discrimination claims . . . under title vii . . . is part of a broader movement against discrimination claims” and that post-racialism has led to a judicial skepticism towards discrimination claims in equal protection jurisprudence.27 in addition to these interpretive barriers impeding civil rights laws from contributing to meaningful change and the rhetorical attractiveness of a post-racial society, there are tremendous practical barriers to accessing these laws even for relief from individual acts of discrimination.28 what remains is an antidiscrimination system that makes little impact on racial oppression, or indeed one that makes matters worse. prohibiting individualized, discreet, and distinct instances of intentional discrimination will do little to achieve racial equality.29 as one scholar has argued, “because the nature of our racial discrimination problem is systemic rather than episodic in nature, it is unrealistic to 26  peter halewood, laying down the law: post-racialism and the deracination project, 72 alb. l. rev. 1047, 1049 (2009). 27  jones, supra note 23, at 425. 28  some of these practical barriers include a complainant’s lack of resources and support and her ignorance of procedures and substantive laws regarding race discrimination. it is probable that there are other attitudinal barriers on the part of those processing race complaints that also interfere with bringing successful claims. an examination of the disposition of race-based claims at the equal employment opportunity commission (eeoc) reveals that after an investigation, the eeoc is much more likely to conclude that there is no reasonable cause to believe that discrimination has occurred. for example, in 2010, 70.1 percent of claims were found to have “no reasonable cause,” compared to less than 3.5 percent that were found to have “reasonable cause.” see u.s. equal employment opportunity commission, racebased charges fy 1997—fy 2010, available at http://www.eeoc.gov/eeoc/ statistics/enforcement/race.cfm. unfortunately, these statistics are rather ambiguous since they do not explain the reasons for such determinations. from research i conducted on the treatment of race discrimination claims at the ontario human rights commission, i determined that many of the nocause findings were based on stereotypical assumptions about complainants rather than the lack of merit of the claim. see donna e. young, the donna young report: the handling of race discrimination complaints at the ontario human right commission (1992) (on file with author). 29  see freeman, supra note 24, at 30 (arguing that “the law views racial discrimination not as a social phenomenon but merely as the misguided conduct of particular actors”). http://www.eeoc.gov/eeoc/statistics/enforcement/race.cfm http://www.eeoc.gov/eeoc/statistics/enforcement/race.cfm 509 post race posthaste vol. 1:3 think that the problem could ever be resolved through the use of mere particularized remedies directed at identifiable bad actors.”30 more problematic is the undeserved authority that title vii earns by its mere existence. it makes credible the idea that we have solved our “past” discrimination problems. iii. conclusion: marxist theory in post racial america how might marxist theory contribute to the understanding that antidiscrimination laws are ineffectual in the context of free markets and post-racial dialogue? marxism tells us that the conflict between the capitalist class and the working class is inherent in a capitalist system.31 capitalists control the means of production and endeavor to increase profit by exploiting the working class. the working class sells its labor in return for wages.32 this working class majority, then, is interested in increasing wages and improving working conditions. because capitalists have superior bargaining power, especially within the legal framework of at-will employment, they also enjoy more economic, legal, political and social power.33 therefore, in order to end exploitation (the devaluation of their labor), the working class must work together to overthrow capitalists.34 absent this revolution, however, the working class at least must form unions and other organizations to improve the quality of work (better wages, hours, and working conditions).35 racism has been and continues to be a constant and necessary component of american capitalism. it operates to divide the working class and indeed relegates large minorities to the underclass and thus prevents unified political action. the resulting weakness of bargaining power of the working classes maximizes profits by ensuring a wage system that undervalues the worth of labor. ownership of capital is therefore equated with whiteness and being owned or devalued with blackness. discrimination is a system not confined to the individual workplace, but one that permeates all workplaces and one that is essential to the structure of the free market itself. yet because antidiscrimination laws have 30  spann, supra note 22, at 1136. 31  steven seidman, contested knowledge: social theory today 29 (3d ed. 2004). 32  id. at 31. 33  see id. at 128. 34  see id. at 31. 35  id. at 32. 2012 columbia journal of race and law 510 been incapable of addressing inequities inherent in a presumed raceneutral free market, we cannot rely on existing antidiscrimination laws to address the many ways in which racism is practiced. due to the embedded nature of racism in american capitalism, concerted, organized resistance may be a promising avenue for meaningful social change. used up and misused: the nation state, the european union and the insistent presence of the colonial patricia tuitt * introduction discovery, according to the political theorist, carl schmitt, “is not a timeless, universal and normative concept,”1 but rather one that is limited—bound to a particular historical, even intellectualhistorical situation: the “age of discovery.”2 yet, through what means other than by placing discovery within a normative framework can one account for the political community which, when deemed to have reached the limits of its economic and social efficacy, is imagined as waste or desolate, and, as a consequence of that designation, open to radical alteration? the european union, still in the process of emergence from the old order of nation states, is a case in point. similar to many legal entities that have preceded it, the e.u. is being settled by the migration of people and by the free movement of other factors of production. also like so many legal entities that have come before it, the european union survives (even thrives) on a discursive terrain, which places emphasis on the failings of the nation-state. as the author peter fitzpatrick has remarked, the presentation of the nation-state form as “the atavistic, savage nation of warlike and divisive assertion”3 paved the way for the emergence of the *  professor of law, executive dean, school of law, birkbeck, university of london. i would like to express my thanks to the editors—seth a. klein, sheila r. adams, and jenai st. hill—for their invaluable work on this essay. 1  carl schmitt, the nomos of the earth in the international law of the jus publicum europaeum 131 (g.l. ulmen trans. 2006). 2  id. 3  peter fitzpatrick, modernism and the grounds of law 137 (2001). 491 used up and misused vol. 1:3 european union. the old, modern europe had to be conceived of as thoroughly bankrupt before it could be appropriated to the resolutely post-national and post-modern aims of european integration.4 schmitt describes and analyzes the age of discovery in his monograph, the nomos of the earth.5 this historical period is but one instance of schmitt’s general proposition that: [i]n some form, the constitutive process of a landappropriation is found at the beginning of every settled people, every commonwealth, every empire. this is true as well for the beginning of every historical epoch. not only logically, but also historically, land appropriation precedes the order that follows from it. it constitutes the original spatial order, the source of all further concrete order and all further law.6 the age of discovery was a complex and involved history, conventionally dated from the early fifteenth century to the late seventeenth century. it was an age in which mass migration (not classic war or conquest) was deployed to extend the territories of a power or, crucially, to engineer “the destruction and/or transformation of other forms of social organisation and life”7 of communities assumed to be spent and useless. in spite of the press of legal and political theory relating to the eu, which collectively and aggressively asserts its sui generis character, it is time for the formation of the european union to be measured against schmitt’s fundamental claim. this essay will assert that, through the migration and settlement of people and the movement of goods and capital, the savage, bankrupt estate of the old order in europe has been appropriated. the way in which the member states of the e.u. have appropriated territories is similar to the migration and movement of units of production to the lands occupied by people considered primitive in earlier historical periods and in other geographical locations. far from witnessing the birth of a political community 4  see, e.g., sionaidh douglas-scott, constitutional law of the european union 13-16 (2002). 5  schmitt, supra note 1. 6  id. at 48. 7  catherine hall, introduction: thinking the postcolonial, thinking the empire, in cultures of empire: a reader: colonisers in britain and the empire the nineteenth and twentieth centuries 1, 5 (catherine hall ed., 2000). 2012 columbia journal of race and law 492 without precise historical precedent, the origins of the european union are distressingly familiar. i. carl schmitt, land appropriation, and the european union this essay does not attempt to suggest that no scholarly works exist that seek to interrogate the dominant characterisation of the european union as a wholly unique political and legal entity. on the contrary, there is a respectable (but marginal) body of works which highlight the eu’s adherence to classic modes of sovereign assertion, its embrace of a denigrated notion of citizenship, its treatment of resident non-nationals and asylum-seekers, and its overwhelming preoccupation with economic actors and spheres of activity.8 for example (and in seeming anticipation of this essay by nearly a decade), etienne balibar refused to accept that the european union had left behind the legacies of colonialism and imperialism that were so integral to the histories of member states of the supposed new europe.9 indeed, balibar went so far as to invoke the idea of a “european apartheid.”10 this essay sits between the claim that the european union has emerged from the old order of europe and the opposing position that the eu is little more than the nation state writ large. under this latter position, the eu is an entity that appears to be unlike the nation-state, but rather is one that has folded in its member states into a supposedly new polity (the european union) which simply mimics and exaggerates the particular characteristics of the nation-state.11 what lies in between these two positions is the intriguing truth: whilst not heralding a new kind of legal and political community, the european union represents the “surprising change”12 that schmitt hoped would come about in legal and political thought and practice. his hope was a much sought after (but little anticipated) change that would once again make 8  id. at 5. 9  see generally étienne balibar, we, the people of europe? reflections on transnational citizenship (2004). 10  id. at 45. 11  see peter fitzpatrick, new europe and old stories: mythology and legality in the european union, in europe’s other: european law between modernity and post modernity 27-36 (peter fitzpatrick & james bergeron eds., 1998). 12  schmitt, supra note 1, at 335. 493 used up and misused vol. 1:3 “relevant”13 the connection between “nomos”14 and the “appropriation of land.”15 the major contention of the nomos of the earth, a significant text on the international legal order, was that since the end of world war i, the word “nomos” had lost its fundamental relation to land appropriation. as a result, what to schmitt ought to have been inconceivable—economic, political and social systems, anchored only by positive legal norms and conventions and not by the primary act of land capture—took hold of the political imagination.16 thus, schmitt would be pleased to learn that the force behind the european union is the plain, old fashion taking of territory. the effective beginnings of the european union can be located in the rome treaty.17 at the heart of european integration is the assertion of the right of european people to move freely across territory, similar to what has been seen in every epoch of history. this is a surprising change indeed, given that the european union is routinely positioned as perhaps the most advanced instance of a globalized, deterritorialised space. the legal notion and practice of free movement remain at the core of the european union’s constitutional and substantive fabric. as i have argued elsewhere,18 those who seek to comprehend the precise legal nature of the european union make much too little of the undeniable fact that the treaty of rome, which established the european community, engineered the mass exodus of european people who were lured by the promise of economic advantage. such projects of migration have leant force to virtually every legal community at the dawn of their existence.19 what this intimates, is that the emergence of the european union has not occurred in such a way as to unsettle schmitt’s claim that land appropriation is a condition precedent of the emergence of a legal and political community. 13  id. 14  id. 15  id. 16  see id. 17  consolidated version of the treaty of the functioning of the european union, may 9, 2008, 2008 o.j. (c 115) 47 (formerly known as the treaty of rome). 18  see e.g., patricia tuitt, from the state to the union: international law and the appropriation of the new europe, in events: the force of international law (fluer johns et al. eds., 2010). 19  id. at 177. 2012 columbia journal of race and law 494 it is indisputable that the european union marks the beginning of a new polity. however, this essay disputes the claim that the eu is a new kind of political entity. the eu is neither simply a continuum of the old order of nation states nor a sui generis legal community. the rome treaty put in circulation the beginnings of a political force that gestures toward the age of discovery. the key characteristics of this new political force are well known: over a relatively short span of time, the old organisation of independent sovereign states of europe have seen their borders hugely transformed, gradually in some spheres and more rapidly in others. at least in the movement of persons, capital, goods and services, the single market has replaced the old arrangement of independent and insular economic units. the very question of what geographical limit is comprised within the european space (admittedly always highly unstable and contested) has been placed more sharply in focus as the expansion of europe appears to know no obvious limit. the doctrine of direct effect,20 which allows nationals of the eu to rely upon european law directly before their national courts, has made not only member states and eu institutions but also natural and legal persons, direct beneficiaries of the european union’s legal order. in virtually every discussion of the nature of the new european legal order, such innovations are paraded like flags marking its territorial compass. of first importance for this account, nationals of member states of the eu are encouraged by various economically grounded free-movement rights to look across their increasingly porous borders to neighbouring locations with greedy eyes. indeed, it is through their energiestheir desire to discover the riches that the new europe has in storethat has spurred the european revolution. the rome treaty is the principal cause of the new distributions within europe. it is often dubbed the axis upon which the eu revolves, indicating that the rome treaty is the primary law of the european union or, to invoke schmitt again, “the first measure of all subsequent measures”21 hans lindahl has played an important role in taking schmitt’s work beyond the seemingly narrow territorial understanding of space and place. lindahl’s recent work, in which he attempts to uncover the precise nature of 20  see, e.g., paul craig & grainne de burca, eu law: texts, cases and materials 275 (4th ed. 2008) (defining the criteria for establishing direct effect). 21  see schmitt, supra note 1, at 67. 495 used up and misused vol. 1:3 the european union’s territorial form, is instructive. thus, borrowing from lindahl, it can be argued that it is through the movement of persons that the european union seeks to enclose itself.22 however, as lindahl cautions, it is not the mere act of closure that is important in elucidating the territorial character of any emerging polity, but rather the question of what the act gestures toward. to be more specific, any act of closure, which the rome treaty dispensation instructs, is “buil[t] on a prior closure.”23 that itself is conditioned upon the existence of a non-empirically grounded place to which any act of closure constantly refers. this essay argues that the non-empirically grounded place on which the european union fixes itself and schmitt’s intellectualhistorical situation are the same. thus, it is in light of lindahl’s prescient observations that this essay now returns to its point of beginningto that something more than mere situated occurrence but something less than norm of discovery. as lindahl makes clear, the creation of a bounded space is not the result of a concrete act of placement but rather of an imaginative space that can “function as the origin of the eu only if it is not in empirical space and time.”24 this relation between an act of closure and the place to which the act of closure must refer if it is to complete itself is perhaps best summed up in lindahl’s assertion that to engineer a community within a deterritorialised space is an impossible task, because “[a] community mustliterallyfind a place in a continuous process of relating to space . . . part of what it means to be a community is to have to continuously reinterpret the claim to an own place.”25 can it be said that the european union’s own place is to be found in constant reference to the period of sovereign appropriation that we know of as discovery? first, one must take as the significant constitutive moment of the european union the filling up of the european space through the movement of the factors of production, especially the movement of persons. if one accepts this proposition, then it is at least plausible to suggest that the european union’s own place is one in which the primary value, the intuitive sense, relates to the omnipresent need to enjoin european citizens in the task of effecting radical change over territory that is both 22  hans lindahl, finding a place for freedom, security and justice: the european unity and its claim to territorial unity, 29 eur. l. rev. 461, 473 (2004). 23  id. at 476. 24  id. at 479. 25  id. at 465. 2012 columbia journal of race and law 496 covered and governed. in short, there is no better description found of the european union’s claim to an own place than in the nomos of the earth. to reiterate the claim: the european union, surprisingly for some, is the contemporary instance of a type of sovereign constituting that even schmitt thought had effectively passed into history. schmitt’s reluctant acceptance that the era of land appropriation, by the time of his writing, had ended was closely tied to the conviction that the international order had effectively surpassed “the problems of founding anew and of transition” and had reached “some degree of calculability and security”26 in modern times, some of the most concentrated set of interrogations into modes of founding, constituting, and transition have been posed in relation to the european union. even the most unschooled student of law cannot avoid encountering reams of paper devoted to an analysis of the legal character of the european union. its emergence, then, confounds schmitt’s belief that the political climate in which he wrote his thesis afforded no new political beginnings. the creation of the eu shows however that schmitt correctly believed that where a new beginning is possible “in some form, the constitutive process of land-appropriation is found . . . ”27 according to schmitt, the movement of the world into a realm of calculation would bring an end to the era of constituting. chief among the many features of the post war international order which, as perceived by schmitt, has caused nomos to lose “its energy and majesty”28 in modern constitutional theory and practice is the perceived end of the logical possibility and practical opportunities for land-appropriation. and, in truth there are no spaces on earth that have not been covered and governed. however, recognizing this fact does not mean one necessarily has to accept that the era of constituting has passed. rather, the question becomes in what manner such populated and governed spaces can still be appropriated. to answer this question, one must first appreciate that, as the discovery of the new world attests to, land appropriation can never exhaust itself merely by virtue of the finite nature of literal space. a great portion of the history that schmitt deals with, in the section of nomos devoted to the discovery of the new world, reveals how landappropriation can operate in the face of a world, the separate units of which have once been appropriated, its lands already divided, 26  see schmitt, supra note 1, at 341. 27  see id. at 48. 28  id. at 67. 497 used up and misused vol. 1:3 populated, and governed. if land-appropriation historically and logically precedes the settlement of any new political entity, then the question of how to appropriate an already appropriated world is one that logically was posed at the emergence of the european union: a polity which indisputably arose from the densely populated and extensively governed territories of europe. confronted with an earthly limit, post-war europe saw in the degenerate nature of its existing political forms and its ineffectual economic structures a new europe. seen from the vantage point of the place against which the seeds of the european union was born, new cannot be understood to denote the thing or entity that will arise from the degradation of the old order of nation states in europe. rather, it is evocative of a figuratively empty space, a point of transition and renewal. the new europe, then, was a space that was ripe for change—not literally empty, but used up or misused. when we speak of the new europe it is in a kind of shorthand to characterize the old arrangement of nation states as spent or obsolete. to be designated new is to bear the taint of the barbarian. the term “new” underscores a political and social order that has reached the limit of political efficacy. ii. twenty-first century discovery if discovery is properly thought of as both an intellectual and historical situation, then it is difficult to ignore certain features of the emergence of the european union. in particular, one cannot ignore the primacy of the four freedoms of the treaty of rome, which suggest that this intellectual situation has not disappeared. the intellectual situation that remains in political thought today and which the european union claims as its own place through the act of closure that comes with the grant by the treaty of rome to the peoples of europe to set forth on a discovery of the european space, is that which comes through as a legacy from the so-called golden age of discovery. all the certainties of the age have been brought forward to the present, above all the belief that any community which does not beckon towards the modern is effectively an empty space and of no account. in such a state, there is no enemy to conquer and no people with whom to negotiate a settlement. in such a state, it is possible to create a concrete order, not through invasion and conquest, but through migration and settlement. the state of post-war europe need not be exaggerated: it was not a barren wasteland, populated by men in bearskins. rather, 2012 columbia journal of race and law 498 what was to be transcended in the discovery of europe was the unwanted shadow of the modern at the dawn of the post-modern. the imperial continuum exists in the mode of the proposed settlement of the new europe, which essentially is through migration of a particularly ruthless and frenzied momentum. it is that process of constituting—that place which the european union makes its own—that helps us make sense of the extraordinary prominence of free movement rights in the fashioning of the new europe and the almost tyrannical pressure placed upon eu citizens to travel around the ever-increasing spaces of the new europe. the appropriation of europe to the exigencies of the european union has occurred in the time-honoured fashion of encouraging the most courageous (most often too the economically advantaged) to test the new spaces to discover to what extent its seeming dissolution can yield hidden riches. the european union surely presents us with a basis on which to question the wisdom of schmitt’s claim that “discovery . . . is not a timeless, universal, and normative concept.”29 29  schmitt, supra note 1, at 131. putting theory into practice: using a human rights framework and grassroots organizing to build a national revolutionary movement bekah mandell * introduction derrick bell’s the space traders—a parable of the final fulfillment of the ruling class’s dehumanizing and racist divide and conquer tactics was written long before the tea party emerged, but the story foreshadows its rise. in the story, the united states has squandered all its natural resources, irreparably degraded the environment, and faces a crippling national debt. one auspicious day, a spaceship arrives with solutions to all of the united states’ problems—the key to clean energy, a way to clean up the environment, and enough money to erase the national debt. all the space traders ask for in return is that the african american population of the country be rounded up for transport on the ship to an uncertain end.1 the tea party has all but promised working class white america that a similar vessel is on its way to erase all of the country’s problems by removing immigrants and people of color and taking the country back for hard-working whites.2 the tea party’s promised ship does not hail from outer space, but has set sail from a new legal and policy landscape of privatization, globalization, *  a.b., vassar college, j.d., boston college law school, adjunct professor, champlain college, dev. dir., vt. workers’ ctr. 1  derrick bell, faces at the bottom of the well: the permanence of racism 158-60 (1992). 2  sarah palin blog: news and views about sarah, http://sarahpalin blog.typepad.com/sarah_palin/2010/03/team-sarah-broadcast-on-a-missionto-take-back-our-country.html (announcing that sarah “is on a mission to take back our country”). 403 putting theory into practice vol. 1:3 and corporate power and is headed south—straight to the mexican border.3 in these challenging economic times, the tea party’s promise of a prosperous america is compelling. poor and working class whites, whose livelihoods have been gutted by globalization and the financialization of our economy, can find in its racist simplicity a scapegoat to explain their poverty, insecurity, and desperation, as well as a beautiful dream of a better world. this better world would be one in which they somehow are magically given the gift of prosperity, thereby rising up out of the working class and into the ruling class where they have been told they belong.4 but the better world promised in bell’s story and so violently dreamed of in the contemporary tea party narrative is illusory. it is merely a symptom of their alienation from their own humanity that allows the tea party’s white followers to believe that someday they will achieve the ruling-class prosperity they so desire.5 this essay proposes to use the theoretical framework of critical race theory and marxism to chart a way forward and away from the tea party’s racist dream and toward revolution. this essay will show how the ruling class uses race and immigration status to isolate, alienate, dehumanize, and divide poor and working class people.6 those tactics work to keep working people (particularly whites) dreaming the impossible dream that someday their oppressors—the ruling class—will offer them the sweet relief and prosperity they so desperately desire.7 this essay will demonstrate that while these tactics prevent the poor and working 3  see citizens united v. fed. election comm’n, 130 s. ct. 876, 885-86 (2010) (holding that it is a violation of free speech to limit corporate political speech). 4  see anthony paul farley, the apogee of the commodity, 53 depaul l. rev. 1229, 1236-37 (2004). 5  see karl marx, economic and philosophical manuscripts of 1844, in the marx-engels reader 75-77 (robert c. tucker ed., 2d ed. 1972) [hereinafter marx, economic and philosophical manuscripts] (discussing the de-humanization of the wage-slave in a capitalist system and how that alienation causes pathological individualism). 6  cheryl i. harris, whiteness as property, in critical race theory: the key writings that formed the movement 276, 284-86 (kimberlé crenshaw et al. eds., 1995) [hereinafter critical race theory] (discussing the way that race was used to undermine class consciousness among workers). 7  see farley, supra note 4, at 1237-38 (discussing the futility of prayers for relief from the oppressor). 2012 columbia journal of race and law 404 classes from developing the shared struggle, organization, and consequent class-consciousness that are necessary for a movement to overthrow the chains of exploitation and build a revolution, they can be overcome by using a grassroots organizing strategy and human rights framework. the second section of this essay will briefly outline the history of the ruling class’s divide and conquer strategy. the third section will explain how the divide and conquer tactics play out in the contemporary united states. the final section will make the case for overcoming those tactics with an antioppression grassroots organizing strategy based on human rights principles informed by both marxism and critical race theory (crt). this essay will demonstrate that this strategy is the most effective way to undermine the ruling class hegemony, and overcome their divide and conquer tactics, and allows working people to develop the class-consciousness necessary to overthrow the bonds of capitalist exploitation. i. dehumanization and divide and conquer in united states history the racist archetypes deployed by the tea party today to divide poor and working class folks, while dehumanizing people of color, are not new.8 their roots are centuries-old. they began when plantation owners in what would become the united states began to fear that their exploited workers—a workforce that was comprised of both african slaves and european indentured servants—would join together and rise up against their masters.9 working side-by-side in onerous conditions, african slaves and european indentured servants had every incentive to come together to overthrow their masters and escape the shackles of slavery. terrified at the idea of uprisings like bacon’s rebellion, planters in 8  eugene robinson, racism and the tea party movement, real clear politics (nov. 2, 2010), http://www.realclearpolitics.com/articles/2010/11/ 02/race_and_the_tea_partys_ire_107805.html (last visited june 4, 2012) (discussing the contemporary manifestations of divide and conquer tactics in the tea party’s rhetoric by looking at the tea party’s call to “take back our government” as veiled racism and a call to take back from its un-american black president). 9  neil gotanda, a critique of “our constitution is color blind,” in critical race theory, supra note 6, at 257, 261 (explaining the development of race during chattel slavery); see also kenneth n. addison, “we hold these truths to be self-evident . . .”: an interdisciplinary analysis of the roots of racism and slavery in america 245-46 (2009) (pointing to the fear held by planters of a united uprising among white indentured servants and african slaves). 405 putting theory into practice vol. 1:3 north america acted swiftly to prevent such power from building among their slaves and indentured servants.10 plantation owners successfully prevented their exploited workers from building solidarity for a revolt by prohibiting marriage and relationships between the two groups, and dehumanizing the african slaves.11 these divisions effectively allowed the planters to construct the idea of racial difference and hierarchy. these constructed racial divisions entrenched the alienation of slavery and prevented the slaves and indentured servants from seeing the commonality of their struggle and their potential collective power to overthrow the chains they shared.12 after chattel slavery was abolished, the racial divisions constructed during this period were reinforced and reinvented through the legal, economic, and political systems in the united states.13 the ruling class maintained the racial divisions that had so effectively dehumanized workers and maintained their control of production through the courts system as well as federal and state legislatures in the decades that followed the end of chattel slavery. the ruling class used law and policy to ensure that race continued to serve as a useful tool in alienating the working class from its humanity.14 through these devices, the ruling class divided workers along socially and legally constructed fault lines, thereby keeping them in their de-humanized dream state and preventing them from seeing their common oppressor.15 examples of the effectiveness of this tactic abound throughout united states history. from anti-miscegenation laws, which prevented africans and europeans from joining together in 10  see pem davison buck, constructing race, creating white privilege, in race, class, and gender in the united states 31-34 (paula rothenberg ed., 2004). 11  id. 12  id. 13  see generally ian haney lopez, white by law: the legal construction of race 116-22 (2006) (detailing the legal system’s role in defining and policing race and white privilege for purposes of determining citizenship). 14  see id. (noting the long history of reifying race through the legal system); see also marx, economic and philosophical manuscripts, supra note 5, at 7577. 15  see marx, economic and philosophical manuscripts, supra note 5, at 75, 77 (discussing the alienation and individualism of capitalism and its role in preventing the laborer from seeing her situation clearly); harris, supra note 6, at 284-85 (explaining that white privilege serves to prevent the white working class from confronting their own class exploitation). 2012 columbia journal of race and law 406 marriage, to the black codes, the ruling class used a variety of measures to dehumanize and individualize workers’ struggles along racial lines.16 the great migration provided the ruling class with an opportunity to entrench racial divisions and hatred between the black and white working class after the abolition of slavery.17 as organized labor began to exert real power in the industrial cities of the north, bosses fought back by turning white workers’ ire away from the ruling class and towards the black workers they brought in to work during strikes.18 the widespread hunger and poverty of poor and workingclass people in the depression of the 1930’s threatened to awaken the white working class from their dream of becoming as prosperous as their masters one day.19 the ruling class responded once again to the threat of a rising class-consciousness by dividing and conquering the ranks of the poor and working-class, passing a series of social safety nets and labor standards to privilege white workers over workers of color.20 the exclusion of farm workers and domestic workers from the fair labor standards act (flsa) during the new deal disproportionately excluded workers of 16  during reconstruction, southern states passed laws that limited the freedom of newly emancipated black workers, restricting their ability to work for wages, vote, own property, and use the legal system. for a discussion of these black codes, see abel a. bartley, the fourteenth amendment: the great equalizer of the american people, 36 akron l. rev. 473, 480-83 (2003). for a discussion of anti-miscegenation laws and their role in policing race, see reginald oh, interracial marriage in the shadows of jim crow: racial segregation as a system of racial and gender subordination, 39 u.c. davis l. rev. 1321, 1329-31 (2006). additionally, the white labor movement won improvements for their members at the expense of black workers. see david e. bernstein, roots of the underclass: the decline of laissez-faire jurisprudence and the rise of racist labor legislation, 43 am. u. l. rev. 85, 90-92 (1993). 17  see susan olzak, labor unrest, immigration, and ethnic conflict in urban america, 1880-1914, 94 am. j. soc. 1303, 1304 (1989) (discussing the rise in inter-racial violence during strikes). 18  for a general discussion of the role of racism and black strikebreakers during this period, see bernstein, supra note 16, at 102-03; see also olzak, supra note 17, at 1304. 19  during the great depression, hundreds of thousands of people joined the communist party, threatening the hegemony of the ruling class. 20  the new deal reinforced racist labor practices, privileging white workers and families over workers and families of color by excluding workers of color. see risa e. kaufman, the cultural meaning of the “welfare queen”: using state constitutions to challenge child exclusion provisions, 23 n.y.u. rev. l. & soc. change 301, 305 (1997). 407 putting theory into practice vol. 1:3 color.21 domestic workers across the country, plantation workers in the south, and farm workers across the southwestern and western united states were disproportionately black and latino.22 their exclusion from labor protections kept them physically and psychologically divided from their white brothers and sisters in other sectors. throughout most of the twentieth century, the racist exclusions of the flsa and other new deal legislation combined with jim crow, de facto segregation in the north, and institutionalized racism to afford those with the privilege of white skin jobs capable of supporting a family, while people of color were relegated to lower-paying, non-unionized, agricultural, service, and domestic work.23 as a result, legally and socially constructed racial distinctions became enshrined in the workplace as whites dreamed that they were only a few more years of hard work away from joining the ruling class, while they simultaneously looked down upon workers of color from their place of privilege in the labor market.24 these workplace divisions ensured that working-class whites and working class people of color remained unable to see their shared struggle against the bosses and remained easy to pit against one another. throughout the united states’ labor history, the ruling class has been well-organized, strategic, and incredibly effective at passing laws or shaping the labor market to keep workers dreaming of one day becoming a prosperous member of the ruling class. this technique dehumanizes and alienates workers and shifts their anger away from their bosses and onto their fellow workers instead. 21  see national labor relations act (nlra), 29 u.s.c. § 152(3) (noting that “the term ‘employee’ . . . shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home . . . or any individual having the status of an independent contractor . . .”). 22  marc linder, farm workers and the fair labor standards act: racial discrimination in the new deal, 65 tex. l. rev. 1335, 1336-38 (1987). 23  see bernstein, supra note 16, at 87, 92, 95. 24  harris, supra note 6, at 284-86 (explaining why working class whites aligned their interests with those of the white ruling class). 2012 columbia journal of race and law 408 ii. divide and conquer today despite the tea party’s racist rhetoric, the ruling class has no intention of actually following through with any wholesale deportation of immigrants or people of color. the ruling class relies on these constructed racial divides to maintain the dehumanized dream state of the working class—both black and white.25 without the constructed divides of race, the working-class might wake up from its dream of deferred prosperity and see their exploiters clearly. as bell explains in the space traders, the specter of losing the country’s black population was “unhappy . . . news for the nation’s richest and most powerful men” because it might awaken the white working class.26 rising inequality, continued unemployment, globalization, and the collapse of the housing bubble have created the conditions necessary for poor and working class people to rise up from their dream deferred and see their shared struggle against the ruling class.27 it would seem that the conditions for a revolution are in place: developments in technology have improved communication between workers and, wage inequality and unemployment are at record highs, without real job creation in sight.28 moreover, class polarization is growing dramatically as the middle class disappears, 25  bell, supra note 1, at 181. 26  id. at 180-81 (explaining that “though seldom acknowledging the fact, most business leaders understood that blacks were crucial in stabilizing the economy with its ever-increasing disparity between the incomes of the rich and the poor. they recognized that potentially turbulent unrest among those on the bottom was deflected by the continuing efforts of poorer whites to ensure that they, at least, remained ahead of blacks. if blacks were removed from the society, workingand middle-class whites—deprived of their racial distraction—might look upward toward the top of the societal well and realize that they as well as the blacks below them suffered because of gross disparities in opportunities and income.” ). 27  see karl marx, the communist manifesto 61-63 (frederic l. bender ed., 1998) [hereinafter marx, communist manifesto] (explaining how increasing exploitation by the bourgeois compels the proletariat into recognizing the shared struggle of the working class and coming together into unions, and eventually one global union of workers with the power to overthrow the ruling class). 28  see mortimer b. zuckerman, the great jobs recession goes on: the recession is officially over but unemployment remains high, u.s. news & world rep. (feb. 11, 2011), http://www.usnews.com/opinion/ mzuckerman/articles/2011/02/11/the-great-jobs-recession-goes-on. 409 putting theory into practice vol. 1:3 while simultaneously the concentration of wealth continues to shift to large corporations and the ruling class.29 but where is the revolution? instead of plotting a revolution, the tea party and white working class america are dreaming of cuts to the estate tax.30 just as they did during chattel slavery, the great migration, and the great depression, these factors can converge without catalyzing a revolution. today, as it has every time capitalism has been thrown into crisis, the ruling class keeps the working-class in its dream state by pushing workers to think only of individual struggle while ignoring their shared struggle and common humanity.31 by promoting individual liberty and individual economic advancement the over collective struggle, the ruling class coaxes the working class into blaming each other for their troubles, instead of turning their ire onto the oppressors. the dream the ruling class spins is so compelling that that the working class begs the master for tax breaks to help the ruling class consolidate its wealth.32 the effectiveness of the divide and conquer tactic comes from the dehumanization of non-white scapegoats. today, they are portrayed as dirty and opportunistic latino immigrants and black criminals and welfare queens leeching off of and endangering hardworking americans.33 throughout history the ruling class has pitted workers against each other in a dehumanizing scramble for survival over the minimum-wage scraps thrown to them in return for their labor.34 29  see gary burtless, the brookings inst., globalization and income polarization in rich countries 2-6 (2007), http://www. brookings.edu/views/papers/burtless/200704.pdf. 30  see don’t raise our taxesdon’t repeal the tax cuts, tea party express (aug. 16, 2010), http://teapartyexpressblog.blogspot.com/2010/ 08/dont-raise-our-taxes-dont-repeal-tax.html. 31  marx, economic and philosophical manuscripts, supra note 5, at 75-77 (explaining how the system of capitalism, property, and wage slavery alienates workers, dehumanizes them, and individualizes their struggles). 32  id.; see also farley, supra note 4, at 1237-38 (discussing the circularity of begging for equality from the oppressor). 33  richard delgado, rodrigo’s corrido: race, postcolonial theory, and u.s. civil rights, 60 vand. l. rev. 1691, 1723-24 (2007) (discussing the taboos used to separate latinos from their anglo brothers and sisters); see also dorothy roberts, punishing drug addicts who have babies: women of color, equality, and the right of privacy, in critical race theory, supra note 6, at 384, 389. 34  see marx, communist manifesto, supra note 27, at 67-68; see also marx, supra note 5, at 75-77 (the ruling class promotes individual gain over collective struggle by dehumanizing workers and using divide and conquer 2012 columbia journal of race and law 410 the ruling class knows better than anyone that if angry working-class whites wake up from their dream, they might stop fighting their brothers and sisters of color and turn against the ruling class in a militant class war. for the ruling class, it is necessary to fan the flames of racism and divide poor and working-class people in an individualized struggle for self-preservation, thereby preventing them from developing a class-consciousness capable of starting a revolution.35 today, in the contemporary united states, the legacy of this dehumanization has brought down the labor movement and provided society with border patrol militias, the tea party, the hyper-exploitation of the workforce, and the largest gap between rich and poor in the history of capitalism. iii. vermont and the healthcare is a human right campaign the state of vermont presents a case study of an antioppression grassroots organizing strategy to build a historic bloc capable of overcoming ruling class divide and conquer tactics. the vermont workers’ center (vwc), which has fought for workers’ rights in vermont for the past twelve years and historically has had a mostly white working class membership. recently, vwc began a new campaign to awaken the working class and directly tackle the divide and conquer tactics of the ruling class called the “healthcare is a human right” campaign (hchr). vermont is becoming increasingly racially diverse.36 migrant workers from mexico run the state’s bucolic dairy farms, jamaican tactics, draconian labor laws to prevent workplace organization, and de facto and de jure segregation to prevent whites and people of color from recognizing their shared experiences as workers); harris, supra note 6, at 28485 (explaining how white privilege was used to evade class consciousness among the white working class). 35  see delgado, supra note 33, at 1722-23, 1725 (explaining the taboos constructed and reified to prevent anglo and latino farm workers from seeing their shared humanity). 36  compare u.s. census bureau, state and county quick facts (vermont), available at http://quickfacts.census.gov/qfd/states/50000.html [hereinafter u.s. census bureau, state and county quick facts] (indicating that in 2009, vermont’s white population was 96.2%), with u.s. census bureau, census 2000 summary file 1, tbl dp-1. profile of general demographic characteristics: 2000 (vermont), available at http://factfinder.census.gov/servlet/qttable?_bm=n&_lang=en&qr_name= dec_2000_sf1_u_dp1&ds_name=dec_2000_sf1_u&geo_id=04000us5 411 putting theory into practice vol. 1:3 workers pick vermont’s iconic apples, and its towns are home to refugees from somalia, bhutan, and bhurma.37 in addition, vermont has a growing population of non-immigrant, residents of color.38 rising unemployment and increasing cuts to social services,39 combined with the growing number of people of color living in the area, make vermont seem ripe for the racist antigovernment rhetoric of the tea party. but the tea party has not gained significant foothold in the state. in a time where tea party candidates swept into office across the country,40 vermont ended three terms of a republican gubernatorial administration, replacing it with a democrat who ran on a single-payer healthcare platform.41 this essay hopes to use the vermont example to provide some insight into why vermont does not have an active tea party movement and why it is on the verge of passing universal singlepayer healthcare. by offering the lessons of the grassroots hchr campaign, this section will provide some tools for those on the left who seek to overcome the divide and conquer tactics and divisions that the bosses construct and reinforce through law, economic policy, and media rhetoric. 0 (showing that in 2000 the white population was 96.8%). 37  see vermont migrant farmworker solidarity project, http://www. vtmigrantfarmworkersolidarity.org/about (last visited july 15, 2012) (noting that vermont agriculture is dependent on roughly 1,200-1,500 migrant farm worker” living on dairy farms across the state); see also somali bantu community association of vermont, inc., http://www.somalibantuvermont. org/ (last visited july 16, 2012); see also, vermont bhutanese association, http://vermont-bhutanese-association.blogspot.com/ (lasted visited july 16, 2012); see also katie ida, burlington acts as a haven for refugees, the vermont cynic (mar. 25, 2010), http://www.vermontcynic.com/feature/burlingtonacts-as-a-haven-for-refugees-1.1993118. 38  see u.s. census bureau, state and county quick facts, supra note 36 (showing that 3.8% of the population is non-white). 39  for a discussion of the cuts to social services and job losses, see vt. workers’ ctr., people’s budget report: preliminary findings 11-13 (2010), http://www.workerscenter.org/sites/default/files/people’s%20 budget%20report.pdf 40  see catherine e. shoichet & shannon travis, election projections fuel tea party fervor, cnn (nov. 3, 2010, 9:26 a.m.), available at http://www.cnn. com/2010/politics/11/03/tea.party/index.html (noting that tea party candidates won in at least 10 of 21 races nation-wide). 41  for a description of shumlin’s platform, see sam stein, vermont lawmakers lay groundwork for single payer system in place of obamacare, huffpost politics (jan. 19, 2011, 3:33 pm), http://www.huffingtonpost. com/2011/01/19/vermont-lawmakers-single-payer_n_811177.html; see also governor shumlin’s campaign page at: http://shumlinforgovernor.com/ health-care-a-challenge-and-an-opportunity/. 2012 columbia journal of race and law 412 iv. the “healthcare is a human right” campaign strategy the “healthcare is a human right” (hchr) campaign is built on a human rights framework using universal human rights principles.42 the campaign is organizing mostly white workingclass vermonters to fight to win a healthcare system that satisfies the principles of universality, equity, participation, transparency, and accountability.43 universality is the principle that “all vermonters must have access to comprehensive, quality health care”—regardless of skin color, nationality, or immigration status.44 equity means that “systemic barriers must not prevent people from accessing necessary healthcare” and that the “financing of health care must be sufficient, fair, sustainable, and shared equitably.”45 participation means that “the state must ensure public participation in the design, implementation, evaluation, and accountability mechanisms in the health care system” so that the people of vermont—white people, people of color, immigrants, and people with disabilities—must have a say in how the system is developed and how it runs.46 transparency and accountability means “the healthcare system must be transparent in design, efficient in operation, and accountable to the people it serves” and that “vermonters [can] hold the system accountable for meeting their health needs and improving their health” and that the system uses money efficiently and effectively.47 currently, there are more than five hundred active members of the “healthcare is a human right” campaign across the state of vermont and approximately seven thousand total members who 42  for an explanation of the principles underlying the healthcare is a human right campaign, see national economic social rights initiative, human right to health info sheet 1 (2008), available at http://nesri.org/sites/default/files/right_to_health.pdf; for the principles of the healthcare is a human right campaign, see human rights principles for healthcare, vt. workers’ ctr., http://www.workerscenter.org/node/408 (last visited july 15, 2012). 43  for a detailed discussion of the human rights principles, see building a grassroots movement for the human right to healthcare, vt. workers’ ctr., http://www.workerscenter.org/hchrhistory (lasted visited apr. 10, 2011). 44  human rights principles assessment tool: detailed human rights standards for healthcare systems, vt. workers’ ctr., http://www.workers center.org/assessment (last visited july 15, 2012). 45  id. 46  id. 47  id. 413 putting theory into practice vol. 1:3 receive information about the campaign. there is a volunteer organizing committee in every vermont county and the campaign has six statewide committees: a steering committee and others dedicated to policy, media, education, art, and base-building. every day, dozens of hchr volunteer members reach out to friends, neighbors, and elected officials to discuss these principles. during january and february of 2011, hchr campaign members collected two thousand photo-petitions from vermonters in favor of the human right to healthcare. during the process of taking the photopetition pictures people, hchr campaign members have conversations about the principles and importance of uniting against the divide and conquer tactics of those in power.48 the human rights framework strikes a blow directly at the heart of the dehumanization and individualism that is the bedrock of private property and capitalism.49 the idea of a shared human right to healthcare is completely inconsistent with the primacy of individual rights and individual advancement that is integral to capitalism’s accumulation.50 the human rights framework provides a way to humanize all workers across the constructed divides of race and immigration status. this framework provides the working class’s best hope for overcoming the divide and conquer tactics of the ruling class and building the shared humanity necessary for classconsciousness. the framework forces white working-class people to recognize their own racial privilege and to see that winning healthcare for themselves and their loved-ones is not possible without uniting with people of color to overcome ruling class oppression.51 by building a movement of universal healthcare using a human rights framework, vwc can explicitly talk with poor and 48  see picture healthcare as a human right: every photo has a story, vt. workers’ ctr., http://workerscenter.org/photopetition (last visited july 15, 2012). 49  see farley, supra note 4, at 1230 (explaining how capitalism’s system of ownership denies human rights to the non-capitalist class and ties humanity to ownership. the quest for human rights therefore shakes the foundation of capitalism by demanding humanity for the non-capitalist class and decoupling it from ownership). 50  id; see also marx, economic and philosophical manuscripts; supra note 5, at 84. 51  martha r. mahoney, class and status in american law: race, interest, and the anti-transformation cases, 76 s. cal. l. rev. 799, 822 (2003) (discussing how the material benefits of whiteness to white workers is destructive to the development class solidarity). http://workerscenter.org/photopetition 2012 columbia journal of race and law 414 working class whites in vermont about the ruling class’s system of exploitation and oppression and how that system uses divide and conquer tactics to prevent working people from winning real victories. the campaign’s framework allows vwc to put theory into practice—to explain to a white dairy farmer who relies on undocumented mexican migrant workers to milk his cows that the white privilege that our economic and legal system have bestowed upon him are barriers to winning healthcare for all. it drives right at the heart of the strategy of the ruling class by forcing poor and working class whites to think about the humanity of those that they are taught by the ruling class to dehumanize and it requires all workers to confront their own humanity and their shared state in a shared struggle with all other workers.52 sometimes, vwc’s new members say that it may be better to not include immigrants in vermont’s new healthcare system because without such a provision there is a better chance of getting the enabling legislation passed. because of the campaign’s principles, members remind each other that they are fighting to make healthcare a human right in vermont law, not a privilege awarded to some people and denied to others.53 by using the human rights principles, the campaign grounds its conversation in a theory that unites, rather than divides its members. last spring, as vermont’s universal healthcare bill neared passage in the legislature, an amendment was added by two senators to exclude undocumented workers from the system. in less than a week, vwc’s mostly white, working-class statewide membership mobilized to strike the brock-sears amendment from the bill, returning to the human rights principles to undermine the divide and conquer tactic.54 but even with all of the theory and principles, understanding this idea can be challenging sometimes for whites long accustomed to seeing their struggle as separate from the struggle of their 52  marx, economic and philosophical manuscripts, supra note 5, at 84-87. 53  treating healthcare as a right rather than a privilege or commodity shakes the foundation of capitalism by providing the space for the sharing of stories and associations between workers who can begin to see through the alienation of capitalism to their own common human experience. id. at 84. 54  we are not arizona, vt. workers’ ctr., http://www.workers center.org/we_are_not_arizona (last visited july 15, 2012); final passage of vermont universal health care bill marks success of a growing human rights movement, vt. workers’ ctr., http://www.workerscenter.org/node/861 (last visited july 15, 2012). http://www.workerscenter.org/we_are_not_arizona http://www.workerscenter.org/we_are_not_arizona http://www.workerscenter.org/node/861(last 415 putting theory into practice vol. 1:3 immigrant brothers and sisters working on the dairy farms of vermont. however, the grassroots’ organizing model allows vwc to continue to work with members to help them get over their fear and discomfort as they begin to discover the ways in which they, too, have been manipulated by the ruling class into seeing their latino and black brothers and sisters as somehow less human or less deserving of healthcare than their white brothers and sisters. in addition to the one-on-one conversations vwc has with members about the fight for the human right to healthcare, and why it must include everyone regardless of race or immigration status, there is a formal political education program for emerging leaders grounded in both crt and marxist theory. members of the vwc education committee use the principles of popular education to discuss how the ruling class divides and conquers the working class by reinforcing constructed rifts along lines of race and citizenship status. in trainings, members discuss how those tactics play out in their lives and in their organizing. the exercises explore how effective the ruling class is at dividing and pitting people against one another in struggles over budget cuts, education funding, employment, housing, and, of course, healthcare. members and staff also discuss why vermonters cannot continue to let the ruling class pit them against one another—why their very survival as humans depends upon overcoming those tactics and building unity. during trainings, vwc members examine why the federal healthcare reform55 failed and how they cannot make the same mistakes in their struggle for reform.56 the vwc trainings use popular education to explore how winning healthcare as a human right in vermont can be achieved by using a grassroots-organizing model that is explicitly anti-racist and anti-oppression. these tactics will significantly undermine the ruling class’s hegemony and their dehumanization of workers. in trainings and one-on-one meetings, 55  the patient protection and affordable care act of 2010, 42 u.s.c. § 18001, pub. l. no. 111–148, 124 stat. 119, available at http://www.gpo.gov/ fdsys/pkg/plaw-111publ148/pdf/plaw-111publ148.pdf. 56  the federal reform failed to meet the standards of human rights principles to make healthcare a public good, because the ruling class convinced terrified whites that the reform would threaten their fragile privilege and push them farther away from their dream of becoming prosperous members of the ruling class. for in-depth discussions of these fear tactics, see andrew l. barlow, between fear and hope: globalization and race in the united states 76-77 (2003). for a detailed assessment of the ways in which the federal legislation failed to meet human rights principles, see human rights analysis of the 2010 federal healthcare “reform” legislation, vt. workers’ ctr., http://www.workerscenter.org/fedlegislation (last visited july 15, 2012). 2012 columbia journal of race and law 416 staff and members also discuss vermont’s potential to show the rest of the country a successful model for organizing across races. as the successful mobilization to strike the brock sears amendment demonstrates this strategy can unite working people in recognition of their shared humanity and shared struggle in order to fight sideby-side for a new healthcare system. accordingly, other states may be able to use vwc’s experience to build a human rights-based strategy to win change that allows for the breaking down of the barriers that keep working class people from building classconsciousness. these conversations about race and immigration status are not always easy, but they are necessary ones. without them, workers will remain stuck in their dehumanized dream state— imprisoned by private property, begging their masters for scraps of relief, and blaming their brothers and sisters of color for troubles they did not cause.57 v. the road ahead: using the theory to develop a fifty-state, anti-racist, grassroots-organizing strategy why tell this story of a grassroots effort in a symposium issue dedicated to critical race theory and marxism? the role of theoretical discourse is to illuminate and move forward the material struggles like the one described in this essay.58 we on the ground need you in the academy to illuminate our struggles and to provide 57  the effect of these [conversations] is felt across the state. the vwc has more than five hundred active members statewide. members and staff organizers talk with thousands of vermonters each month about these issues. during the summer of 2009, members of congress held healthcare town meetings all over the country. most of the meetings were overtaken by racist right-wing individuals who disrupted the meetings by spewing hate-filled rhetoric. this generally did not occur in vermont, because of the grassroots movement for social justice that the vwc is building with the “healthcare is a human right” campaign, senator sanders’ town meetings were productive opportunities to build a movement around the human right to healthcare. conversation with james haslam, dir., vt. workers’ ctr., dec. 10, 2010, burlington, vt. 58  see richard delgado, si se puede, but who gets the gravy? 11 mich. j. race & l. 9, 12-21 (2005); richard delgado, crossroads and blind alleys: a critical examination of recent writing about race, 82 tex. l. rev. 121 (2003) (book review) (discussing the tension between the theoretical and the material in critical race theory). 417 putting theory into practice vol. 1:3 insight and context as we fight to put into practice the lessons of theory. vermont must serve as the leader for this revolutionary movement, but it cannot lead alone. vwc’s strategy and struggle to overcome the working classes’ estrangement from its shared humanity must not stay within vermont’s small borders. other workers across the country must learn from our successes and our mistakes, we must associate together as workers—as humans across the constructed borders of race and geography. workers must not allow the tea party to lull us back to sleep with dreams of one day becoming prosperous members of the ruling class. workers cannot keep looking to the oppressor to grant us relief from our suffering. instead, we must take advantage of this historic moment of crisis to build a new vessel, one constructed with the struggle of our shared humanity; only then will workers be able to break free from capitalism’s chains of private property, oppression, and racism. a dedication anthony paul farley * this symposium of the columbia journal of law & race, critical race theory & marxism, is dedicated to keith aoki, 19552011. keith died an hour after i arrived at his home in davis, california. one hour and he was gone: my lord, what a morning my lord what a morning my lord, what a morning when the stars begin to fall.1 keith fought well on many fronts. there is no one who does anything under the critical banner in the american legal academy who will fail to remember keith at the barricades. but now, three sentences into the paragraph, the fighting metaphor strikes me as somehow missing keith. “fought” is the wrong word. “barricade” is also misplaced. keith seemed beyond and above most outrages. keith had a way of allowing them to pass through his person like water in water. you will weep for the rocks and mountains. you will weep for the rocks and mountains. you will weep for the rocks and mountains. when the stars begin to fall.2 keith’s passing was a shock. that he kept his terminal cancer a secret from everyone was not. keith was always one to avoid making himself the center of attention. despite his selfeffacing tendencies, he was most definitely one of jack kerouac’s “mad ones . . . who never yawn or say a common thing, but burn, burn, burn like fabulous yellow roman candles exploding like spiders across the stars and in the middle you see the blue centerlight pop *  james campbell matthews distinguished professor of jurisprudence, at albany law school. 1  my lord, what a morning (traditional). 2  id. 2012 columbia journal of race and law 512 and everybody goes ‘awww!’ ”3 keith was the situation created when that blue centerlight gathers everyone in its flash and all of you know that you will be together always. in those days he was the one i could talk to about the situationists, the beats, the wobblies, the black panthers, the new left and the old left, the diggers of 1649 and the diggers of 1967, ikiru and men who tread on the tiger’s tale and critical legal studies and the communards and everything and anything and all at once. keith and i talked often about critical legal studies and what it should have become. just now i wrote, “in those days . . .” without designating the days. what days? could it have been ’95? in my first memories of keith he had a long ponytail. we talked about brecht. keith spotted my everyday deployment of the v-effect and we became friends, at least that is how i remember it from those days when academia seemed to me to be an endless and endlessly exciting route 66. my first law review article was written as a letter to keith. i wrote and wrote and wrote. and i sent everything to keith. he replied in ways meant to show that he understood what i was writing. and he understood enough about my own way of writing to limit his comments to “go, man, go!” but already i realize that the conversations that i continue to have with keith in my head have taken on an upanishadistic quality: the spirit of man has two dwellings: this world and the world beyond. there is also a third dwelling-place; the land of sleep and dreams. resting in this borderland the spirit of man can behold his dwelling in this world and in the other world afar, and wandering in this borderland he beholds behind him the sorrows of this 3  jack kerouac, on the road 5 (1957). kerouac’s description of the “mad ones” brings me to back to keith, but keith brings me to the upanishads: even as airy threads come from a spider, or small sparks come from a fire, so from atman, the spirit in man, come all the powers of life, all the worlds, all the gods: all beings. to know the atman is to know the mystery of the upanishads: the truth of truth. the powers of life are truth and their truth is atman, the spirit. brihad-aranyaka upanishad, in the upanishads 127, 130 (juan mascaro trans., 1965) [hereinafter the upanishads). 513 a dedication vol. 1:3 world and in front of him he sees the joys of the beyond.4 critical race theory exists in the “third dwelling place.”5 the third world “land of sleep and dreams” 6 is what i think about when i think about keith.7 what critical race theory sees is what easter promises and what free communism is.8 keith said something like “go, man, go!” when i called him about participating in this project. but he also told me that he was buried in other work. i think that “buried” was the actual word he used to describe and disguise his difficulty. i am certain that i let keith know that he was in the project anyway. i do not remember the words i used. perhaps i said “conscripted.” but now, thinking about it again, i recall a passage from the epic of gilgamesh. i now recall that ishtar, goddess of love, spurned by gilgamesh, demanded the bull of heaven from anu, her father, in order to use as it as an instrument of revenge. i recall ishtar’s words, from a text that may be part of the prehistory of easter, because they give form to my thoughts about keith and the undiscovered country: if thou openest not the gate to let me enter, i will break the door, i will wrench the lock, i will smash the door-posts, i will force the doors. i will bring up the dead to eat the living. and the dead will outnumber the living.9 4  the supreme teaching, in the upanishads, supra note 3, at 133, 134. 5  id. 6  id. 7  id. 8  it looks like this: there a father is a father no more, nor is a mother there a mother; the worlds are no longer worlds, nor the gods are gods any longer. there the vedas disappear; and a thief is not a thief, nor is a slayer a slayer; the outcast is not an outcast, nor the baseborn a base-born; the pilgrim is not a pilgrim and the hermit is not a hermit; because the spirit of man has crossed the lands of good and evil, and has passed beyond the sorrows of the heart. there the spirit sees not, but though seeing not he sees. how could the spirit not see if he is the all? but there is no duality there, nothing apart for him to see. id. at 133, 136. 9  m. jastrow, descent of the goddess ishtar into the lower world, in the civilization of babylonia and assyria (1915), available at http://www. ancienttexts.org/library/mesopotamian/gilgamesh/tab6.htm. 2012 columbia journal of race and law 514 we do outnumber them. the dead outnumber the living. the dead of slavery, reborn as free laborers, without capital, foredoomed by an absolute lack of bargaining power to labor anew as slaves, albeit waged slaves, find, as the only content of their so-called freedom, the death that they have already died. this symposium, critical race theory & marxism, makes two arguments. first, the capitalist cycle is an endless wheel of becoming. second, leaving is a victory: you will hear the shout of victory. you will hear the shout of victory. you will hear the shout of victory when the stars begin to fall.10 we have been nought, we shall be all! we unnumbered dead have cause for joy. our celebration should be a party, a zombie jamboree, to celebrate and bring about the human emancipation that will crack the false eternity of this longest friday.11 easter is the promise that the dead are not dead, only sleeping. that promise, as the rev. dr. martin luther king jr. preached, is cause for joy. if the dead are only sleeping, then critical race theory is the waking up of the world and the breaking of the door and the wrenching of the lock and the smashing of the door-posts and the forcing of the doors, and the bringing up of the dead.87 this symposium is part of that project. critical race theory & marxism is for keith aoki. he has not left us, far from it. he has joined us, again. 10  my lord, what a morning (traditional). 11  taittiriya upanishad, in the upanishads, supra note 3, at 109, 111: “oh, the wonder of joy! i am the food of life, and i am he who eats the food of life: i am the two in one. i am the first-born of the world of truth, born before the gods, born in the centre of immortality. he who gives me is my salvation. i am that food which eats the eater of food. i have gone beyond the universe, and the light of the sun is my light.” critical race theory and marxism: temporal power anthony paul farley * hope is the thing with feathers that perches in the soul— and sings the tune without the words— and never stops—at all—1 modern progress is “the thing with feathers.”2 cruelty to children is its line of flight. it “never stops—at all.”3 but it never gets anywhere. and if it is true that it never asks for anything, that is only because it has already taken everything, and more.4 modern progress is neither modern, nor progressive. it was doomed from the beginning.5 the beginning is not remembered. *  james campbell matthews distinguished professor of jurisprudence at albany law school. i thank all participants for their brilliant responses to my request that they take seriously a missing element of critical race theory, the critique of political economy, and contribute to this symposium, critical race theory & marxism. i thank the organizers of the national people of color conference at seton hall university for granting so much space in the program to post-marxism, post-racialism and other fables of the dispossession, the three-panel stream that i organized. i thank sheila ruby adams, editor-in-chief of the columbia journal of race and law, and all her colleagues. last and most, i thank maria grahn-farley.   1  emily dickinson, hope is the thing with feathers, in the complete poems of emily dickinson 254 (thomas h. johnson ed., 1976). 2  id. 3  id. 4  karl marx, capital (volume i) 915 (ben fowkes trans., 1990) (1867). 5  the industrial workers of the world sang of this already experienced and endlessly repeated doom: we have fed you all for a thousand years for that was our doom, you know from the days when you chained us in your fields to the strike a week ago. 2012 columbia journal of race and law 248 but nothing is lost, nothing is forgotten. the traumatic beginning is preserved, but only in the mode of repetition. repetition is not progress. this essay on modern progress spins out of marxism a theory of time about which marxism itself has remained largely unconscious. marxism is a theory of the already-taken. critical race theory has as its animating spirit, its haunt, a related—but up until now only latent—temporal theory of the already-taken. the unconscious, we learn from psychoanalysis, does not know time; it is timeless. the authority of law comes to us from this same time out of mind. the four corners of this essay’s theory of the alreadytaken are marxism, critical race theory, psychoanalysis, and jurisprudence. the already-taken is the unconscious of law. there are things that sometimes happen in childhood, cruel things, that are forever. these cruel things forever pursue us with “deliberate speed, majestic instancy,”6 or so it seems. these things that are forever become so by catching us unawares, before we are prepared to be anything but overwhelmed. the injury to the child is forever: “to separate them . . . solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”7 if childhood is a name for not-yet-prepared-for-the-furies, then forever is a name for the memory that eludes us. the experiences we have as a group are neither the same as nor the sum of our individual experiences. we, to the extent we are the people, have a capacity for shared experience, a collective unconscious, a pool of dreams, a common sky. if we can look at the larger object to find out more about the smaller object, then it may also be possible to look at the object that is closer to find out more about the object that seems to be more distant. like waves and particles, this debate goes on and on. but if philosophy matters at all, then this debate, with its long history since plato’s republic, authorizes this essay’s movement back and forth from the individual to the collective in search of lost time.8 poem by an unknown proletarian and music by rudolph von liebich, we have fed you all for a thousand years, in rebel voices: an iww anthology 28, 29 (joyce l. kornbluh ed., 1998). 6  francis thompson, the hound of heaven 39 (nabu press 2010) (1893). 7  brown v. board of ed., 347 u.s. 483, 494 (1954). 8  one recalls socrates and his interlocutor on the subject of justice: 249 temporal power vol. 1:3 what of the above-mentioned common sky? there were certain cruelties that fell upon us—as if from the sky—when we were not yet ready. we cannot now recall these cruelties, but the wretchedness of our present condition points us in the direction of a past that must have been filled with them. what were the cruelties that fell upon us so heavily? we did not know what to call them when they originally occurred—we were surprised, speechless—and so we do not have a way to recall them now. what we cannot remember, we repeat. repetition is the mode in which we preserve that which overwhelms us. that which overwhelms us sets itself up in our soul as a repetition of what seems to have been the original catastrophe. we become a permanent wave of our own undoing.9 but the precise nature of our own trauma continually eludes us. we give chase, but only through repetition. we become what we do and this fact of repetition makes what was said of us, “they know not what they do,”10 true. what we do is repeat the disaster that originally left us traumatized. through repetition we become the very disaster that was our original, albeit unremembered, disaster. it was unspeakable. it remains unsaid. but the cruelty from which we imagine ourselves escaped is what we become, and that which we continually make of ourselves. is not the city larger than the man? it is larger, he said. then, perhaps, there would be more justice in the larger object, and more easy to apprehend. if it please you, then, let us first look for its quality in states, and then only examine it also in the individual, looking for the likeness of the greater in the form of the less. the republic: 368c-369a, in the complete dialogues of plato 615 (edith hamilton and huntington cairns eds., 1973). 9  political melancholia, well-articulated by the pixies, resembles a wave: cease to resist, giving my goodbye drive my car into the ocean you’ll think i’m dead, but i’ll sail away on a wave of mutilation a wave wave. the pixies, wave of mutilation, on doolittle (4ad 1989). 10  luke 23:34 (king james). 2012 columbia journal of race and law 250 there are cruelties that happen to us as individuals (“[a]nd i only am escaped alone to tell thee”11) and there are cruelties that happen to us as collectives (“[l]et my people go”12). what happens in the individual can happen to the collective and so, as the long story of philosophy verifies, each is a window to the other. the individual is not the unity it is often imagined to be (“[m]y name is legion”13), nor are the borders of the collective as distinct as they are often imagined to be (“[t]hings fall apart”14). nevertheless, it is useful to speak of the individual (“i think, therefore i am”15) and the collective (“[w]e the people . . .”16) when what is hard to see in the one is easy to make out in the other. our beginning was the scene of an unspeakable event. that unspeakable event keeps repeating. capital arrived in the world “dripping . . . with blood and dirt.”17 if, as margaret thatcher infamously put it, “there is no alternative”18 to capitalism, then there must not have been a time before capitalism. capital, like trauma, is outside of history, outside of the world of things that change, or so it claims by asserting that there is no alternative. the fact that capitalism presents itself to us as a horizonless world should give us pause. but it does not give us pause: we are on the clock—repeating and not living—and so we go on and on not thinking at all about modern times, just repeating.19 marxism has as its zero degree the disclosure of the unspeakably cruel event that threw the modern world up all around 11  job 1:15-17, 19 (king james). 12  exodus 5:1 (king james). 13  mark 5:9 (king james). 14  william butler yeats, the second coming, in the collected poems of wiliam butler yeats 200 (richard j. finneran ed., 1996); chinua achebe, things fall apart (1958). 15  for an extended discussion of descartes and slavery, see anthony paul farley, johnnie cochran’s panther: an essay on time and law 33 t. marshall l. rev. 51 (2007). 16  for an extended discussion of the thomas jefferson’s declaration of independence, mary shelley’s frankenstein, and slavery, see anthony paul farley, perfecting slavery, 36 loy. u. chi. l.j. 225 (2004). 17  marx, supra note 4, at 926. 18  william k. tabb, transnationalization, class and the state, in the politics of globalization 98-99 (samir dasgupta & jan nederveen pieterse eds., 2009) (a critique of thatcher’s neoliberal doctrine that there is no alternative to capitalism). 19  modern times brilliantly and humorously depicts capital’s destruction of time. see modern times (charlie chaplin dir., united artists 1936). 251 temporal power vol. 1:3 us. its name is legion,20 but three were introduced in capital’s first volume with these birthnames: genocide in the new world, colonialism in the orient, and the conversion of the dark continent into a hunting ground for slaves. these three mass murders were race-making moments. these three mass murders were the original accumulation, the first capital. these three mass murders made capitalism a world system. modernity is the repetition of the original accumulation. we are, in other words, still in that original moment to the extent that we are modern and have always been modern. time has not passed. we passed out of the time of the real and into the false eternity of the spectacle. as psychoanalysis revealed: a condition has long been known and described which occurs after severe mechanical concussions, railway disasters and other accidents involving a risk to life; it has been given the name “traumatic neurosis.” the terrible war which has just ended gave rise to a great number of illnesses of this kind . . . the chief weight in their causation seems to rest on the factor of surprise.21 before world war i, josef breuer and sigmund freud observed, “hysterics suffer mainly from reminiscences.”22 after the war to end all wars, freud wrote: in the war neuroses, too, observers . . . have been able to explain certain motor symptoms by fixation to the moment at which the trauma occurred. i am not aware, however, that patients suffering from traumatic neurosis are much occupied in their waking lives with memories of their accident. perhaps they are more concerned with not thinking about it.23 history is this way for us as a collective. we are much concerned with “not thinking about it.”24 uranus is castrated by cronos. the open sky is violated by the desperate hours. call the perpetrator and 20  mark 5:9 (king james). 21  sigmund freud, beyond the pleasure principle (1920), in the standard edition of the complete psychological works of sigmund freud, vol. xviii (1920-1922), at 12 (james strachey ed., 1971) [hereinafter freud, the standard edition]. 22  josef breuer and sigmund freud, studies on hysteria, in freud, the standard edition, vol. ii, supra note 21, at 7, 221. 23  freud, beyond the pleasure principle, in freud, the standard edition, vol. xviii, supra note 21, at 13. 24  id. 2012 columbia journal of race and law 252 the violated by their greek names or by any other names and the scene remains the same: blood rains down on the water, and from that meeting the furies are born. the furies—unceasing alecto, resentful tisiphone, avenging magaera—immortals all, are born of that meeting of blood and water, and are forever punishing violations of the order that allows “no alternative.”25 james baldwin understood the furies: history, as no one seems to know, is not merely something to read. and it does not refer merely, or even principally, to the past. on the contrary, the great force of history comes from the fact that we carry it within us, are unconsciously controlled by it in many ways, and history is literally present in all that we do. it could scarcely be otherwise, since it is to history we owe our frames of reference, our identities, and our aspirations. and it is with great pain and terror that one begins to realize this.26 the time that seems to pass only seems to pass. baldwin understood false time. baldwin understood that this false time of ours is not even “ours”; it is the time of the spectacle.27 we belong to it, not the other way round. what is the “spectacle”? the spectacle is the system’s endless hymn of self-praise. when we have been here 10,000 years / bright shining as the sun / we will have no less time to sing its praise / than when we’d first begun. that is the spectacle. we are within the false time of the spectacle, within the repetitions. 25  tabb, supra note 18, at 98-99. 26  james baldwin, the white man’s guilt (1965), in james baldwin’s collected essays 722, 723 (1998) [hereinafter james baldwin’s collected essays]. 27  guy debord observed: workers do not produce themselves; they produce a force independent of themselves. the success of this production, that is, the abundance it generates, is experienced by its producers only as an abundance of dispossession. all time, all space becomes foreign to them as their own alienated products accumulate. the spectacle is a map of this new world—a map drawn to the scale of the territory itself. in this way the very powers that have been snatched from us reveal themselves to us in their full force. guy debord, the society of the spectacle 23 (donald nicholsonsmith trans., 1994) (1967). 253 temporal power vol. 1:3 the repetitions are spectacular time. we do not live spectacular time, we only repeat, and repetition is not living. the death event that produces the first capital begins with a mark made or found ready-made on the body: the discovery of gold and silver in america, the extirpation, enslavement and entombment in the mines of the indigenous population of that continent, the beginnings of the conquest and plunder of india, and the conversion of africa into a preserve for the commercial hunting of blackskins, are all things which characterize the dawn of capitalist production.28 before the great death event all flesh is common. after the event a mark, insignificant in itself, is made to signify life or death. the mark is a line, a colorline, which separates life from death and connects now with then. after the mark life becomes having and not having becomes its opposite. after the murders reach a certain mass, death follows in an unbending line from now till then, and then becomes a hole in the universe, a hole though which we fall and are now falling, forever.29 the new world was not new before the killing. the blacks were not black before the killing. the colonized were not colonized before the killing. the murders constitute and mark a new species. the production of race is the production of a race that is to have and another race, subordinate to the first, that is to have not. the abundance belonging to the one and the lack that is the chief property of the other are conjoined twins, born of the same unspeakable event. the black can trace its origin only as far back as a bill of sale. james baldwin, speaking in london, was clear on this point: i tried to explain that if i was originally from [an african point of origin] i couldn’t find out where it was because my entry into america was a bill of sale. and that stops 28  marx, supra note 4, at 915. 29  anthony paul farley, shattered: afterword for defining race, a joint symposium of the albany law review and the albany journal of science and technology, 72 alb. l. rev. 1053 (2009) (a mass death events—e.g., genocide, colonialism, slavery—creates a singularity, an unthinkable opening or hole in the universe, akin to the black hole, through which we, the so-called living, fall, spinning around and around, forever). 2012 columbia journal of race and law 254 you from going any further. at some point i became baldwin’s nigger.30 but is the same for the white? the bill of sale is the official screen memory of the mass murder that is the origin of capital. the bill of sale is the alpha and omega of law. the bill of sale is a death certificate, ours. the bill of sale is the recording angel assigned to the children of slaves and children of slavemasters. the legality of that bill of sale is what keeps the chains, the genealogies of property that bind now to then, and all of us to the repetitions, together. law is the work of screening the original accumulation from consciousness. the bill of sale, a paper that somehow connects a person to a property, is an atomic proposition of law. to see the connection between a person and a property as legal requires us to see that connection, the legal connection, as something other than “pain and terror.”31 this is so even though the connection is in fact nothing other than pain and terror, nothing but the why of the mass murders that gave rise to the first capital, nothing more than talon and tooth, and nothing other than a matter for the furies. the bill of sale is part of a system. the bill of sale, its system, designates haves and have-nots. those who have, have. those who have not, have not. like law and right, having and not having are inherited. the original sin of property—the original accumulation—thus repeats itself in our progeny. what does the slave inherit upon legal emancipation? the slave inherits nothing. the ex-slave, now a laborer, enters the marketplace with nothing. having nothing, the ex-slave has nothing by way of bargaining power. the move from chattel slavery to wage slavery is therefore not a move at all. legal emancipation is not progress. the wage system is not progress. the movement from status to contract is not progress. all of this is only slavery repeated as wage-slavery. we are still within the time of the spectacle, the time of slavery, the time of the undiscovered country. slavery to contract is the non-progress of white-over-black to white-over-black. white over black is slavery, slavery is death, death only, and that continually. the slave, having nothing of her own, finding herself in the world that regards her labor-power as a commodity among other 30  baldwin’s nigger: a film recording of a discussion at the west indian student centre london, produced and directed by horace ove (1969). 31  baldwin, the white man’s guilt, in james baldwin’s collected essays, supra note 26, at 722, 723. 255 temporal power vol. 1:3 commodities, is compelled to go to the marketplace to sell her skin, her skin is what her labor power is wrapped in. because the slave has nothing by way of bargaining power, the slave can expect nothing from the marketplace, as marx observed, “but a hiding.”32 the furies are our compulsion to repeat. we are possessed by a screen memory. the screen memory of the bill of sale is legality or rule of law. rule of law is the system’s enabling myth. the myth presents law’s authority as something other than the genocide, colonialism and slavery. there is no such thing as race unless there is first an act of mass murder that attaches the mark of race to capital. that is the sin of capital; capital requires mass murder and it makes race out of that mass murder. the race born of this is always divided in two, one race with an abundance and the other race with a lack. the latter race, the one with the lack, is forced by force of arms to silently suffer or to work for a legal equality that must, as a matter of maintaining what appears in the form of race, the very sign under which they gather, appear to be the order of the universe, be denied in ever more clever ways. striving for equality within the boundaries authorized by the very system that has attached race to lack, the race with the lack succeeds only in forgetting: the patient cannot remember the whole of what is repressed in him, and what he cannot remember may be precisely the essential part of it . . . he is obliged to repeat the repressed material as a contemporary experience instead of . . . remembering it as something belonging to the past. these reproductions, which emerge with an unwished for exactitude, always have as their subject some portion of infantile sexual life . . . that are invariably acted out in the sphere of the transference, of the patient’s relation to the physician.33 psychoanalysis, the talking cure, has as its object of study— its queer contents—the unspeakable event. the unspeakable event, in other words, is what we talk about when we talk about psychoanalysis. that is why psychoanalysis, to the extent it operates as a cure, has always to do with “other words,” words other than what we meant to say. the cure for the individual may be the cure for the group. the talking cure proceeds by freeing the analysand’s 32   marx, supra note 4, at 280. 33   freud, beyond the pleasure principle, in freud, the standard edition, supra note 21, at 18. 2012 columbia journal of race and law 256 speech from the usual constraints of propriety and relevance. once free to roam the enclosure of the analytic space, the analysand’s speech sometimes returns to its source. when the analysand’s speech returns it does so in the shape of whatever it was the analysand had previously not allowed herself or himself to know. thoughts and feelings from one moment in time are transferred onto the person of the analyst. the transferred thoughts and feelings, transferred to the person of the analyst, may show the analysand, by not fitting, just how much work she or he has done to make those feelings appear to fit. the theatre of transference ‘shows’ the analysand a way out of her or his temporal tangle. there is a temporal power that is exercised within time. there is also a temporal power that is said to be eternal, and exercised outside of time. this essay concerns neither the power that is exercised within time, nor the power that is said to be exercised outside of time. temporal power, as that term is used herein, is the power that is exercised over time itself. this is an essay about temporal power. time is created. time can also be destroyed. if modernity is the “drawing of a line,” then color and time are not parallel, they are self-same, the one is also the other one. trauma is another word for destroyed time. so is repetition. the repetitions are another mode by which we destroy time. we live the horizonless trauma and experience constant repetition of unremembered experience as the passage of time. but it is not the passage of time, it is only repetition. modern progress is a line of destroyed time, a line drawn in sand that has already slipped away. modern time is not time; it is destroyed time, spectacular time. modern progress is not progress at all. life moves on. but progress does not move. modern progress does not progress. modern progress can only repeat, endlessly, and repetition, however endless it may be, is not life, it is a line, a timeline, every segment of which is as identical to the rest. it does not have to be this way: this earth divided we will make whole so it can be a common treasury for all.34 34  leon rosselson, the world turned upside down, on the world turned upside down: rosselsongs: 1960-2010 (pm press 2011). 257 temporal power vol. 1:3 memory is a first step to making this earth whole. and this is what is to be remembered about the genealogies of property represented by “the bill of sale”: by theft and murder they took the land now everywhere the walls rise up at their command.35 the furies overwhelm us, but we do not know their names. we do not even know that we have been overwhelmed. these cruelties are forever, but we do not yet know what immortality means. we think that we are “full of the hope that the dark past has taught us”36 frantz fanon wrote of the “moment when tenacity becomes morbid perseverance.”37 at such a moment, “[h]ope is then no longer an open door to the future but the illogical maintenance of a subjective attitude in organized contradiction with reality.”38 what is childhood, properly speaking, but the moment when “the door” is in reality open to the future? a dead child is a dead childhood and a childhood must and cannot be replaced, and so “our need for consolation is insatiable.”39 we who dwell within slavery’s global shadow were strangled in our crib. that was the original accumulation. genocide in the americas strangled us in our crib. colonialism strangled us in our crib. slavery strangled us in our crib. the original accumulation strangled us in our crib. the original accumulation was an 35  id. 36  this phrase from the james weldon johnson poem, “lift every voice and sing,” was set to music by his brother, john rosamond johnson, in 1905 and first performed as a poem on abraham lincoln’s birthday on february 12, 1900, by 500 segregated black schoolchildren. johnson wrote the poem in order to introduce booker t. washington, the famous advocate of black compromise with segregationist white power. once set to music, however, it became known as the “black national anthem.” from 1905 to now, it has sung by african americans on ceremonial occasions. the poem, which arrived in the world the same year as sigmund freud’s interpretation of dreams, is a window into what w. e. b. du bois called “the souls of black folk.” see generally sigmund freud, the interpretation of dreams (1900), in freud, the standard edition, vol. iv; supra note 21; w. e. b. du bois, the souls of black folk 3 (1989) (1903). 37  frantz fanon, letter to the resident minister (1965), in toward the african revolution 52, 53 (haakon chevalier trans., 1988). 38  id. 39  stig dagerman, vårt behov av tröst är omättligt [“our need for consolation is insatiable”], in essäer och journalistik (norstedts 1983) [hereinafter dagerman, our need for consolation]. 2012 columbia journal of race and law 258 unspeakable crime, a wave of mutilation. we do not and cannot know the infinite structures of feeling that were destroyed by the original accumulation. we do not have the words. even the languages of the dead were taken. what happened was and remains unspeakable, even for the dead, and so we do not remember; instead, we repeat, which is not living. no one can be ready for the original accumulation. if there is any measure or name for not ready, or not-yet-ready, then it is childhood. we the people were, therefore, in our crib when the unspeakable cruelties of the original accumulation fell upon us. the furies fell upon the child we were. the child we were had no hope of understanding what was happening when it was taken up, when the furies fell upon it. how to put the original accumulation into words when the words themselves were taken out of the commons and away to the undiscovered country? language itself, and therefore memory, was thus enclosed, buried. without words we are without memory and without memory we are but repetition, and repetition is not living. the child was killed. the child was not killed then, not exactly. the child was killed then and now, now and then; the child was killed either way around, but only always and forever. the child was killed in the original accumulation and that, we sometimes mislead ourselves into thinking, was then. but it is now, too, as dagerman observed: because life is constructed in such a merciless fashion, even one minute before a cheerful man kills a child he can still feel entirely at ease, and only one minute before a woman screams out in horror she can close her eyes and dream of the sea, and during the last minute of the child’s life his parents can sit in a kitchen waiting for sugar, talking casually about the child’s white teeth and the rowing trip they have planned, and the child himself can close the gate and begin to cross a road, holding in his right hand a few cubes of sugar wrapped up in white paper, and for the whole of that minute he can see nothing but a clear stream with big fish and a widebottomed boat with silent oars.40 40  stig dagerman, to kill a child, grand street magazine (book 42) (1992) [hereinafter dagerman, to kill a child]. 259 temporal power vol. 1:3 dagerman continued, “afterward, everything is too late.”41 how does the dead child becomes a republic? that is our absurd situation and therefore it is our absurd question. there is nothing that can ready a people for the original accumulation. that makes it an uninterpretable, that is to say unmanageable, trauma. our need for consolation is insatiable.42 “when every available consolation has been exhausted a new one must be invented even if it should turn out to be absurd.”43 if “faith is the substance of things hoped for, the evidence of things not seen,”44 then faith can also be the expression, after the exhaustion of all consolation, of our insatiable need for consolation.45 “so, we must be careful—lest we lose our faith—and become possessed.”46 but which faith? this one, the only one: the sin of property we do disdain no one has any right to buy and sell the earth for private gain.47 without words, the original accumulation remains a trauma and not a memory. we cannot say anything at all and so we repeat. but repetition is not living. we repeat by our own fidelity to the genealogies of property. what is faith in law other than that which mysteriously authorizes these genealogies? law authorizes the genealogies of property—the genealogy of our dispossession—by cutting off their historical origin. what is faith in law but the loss of faith in whatever it was that we were when we yet lived, or in whatever it might be that we might become should we leave the undiscovered country? faith, lost, becomes faith in law, “[s]o, we must be careful—lest we lose our faith—and become possessed.”48 faith in law, then, is the sign that we have lost our faith “and become possessed.”49 41  id. 42  see generally dagerman, our need for consolation, supra note 39. 43  stig dagerman, ruins, in german autumn 19, 19 (robin fulton trans., 1988) (1947). 44  hebrews 11:1 (king james). 45  dagerman, our need for consolation, supra note 39. 46  james baldwin, the devil finds work (1975), in james baldwin’s collected essays, supra note 26, at 568 [hereinafter baldwin, the devil finds work]. 47  rosselson, supra note 34. 48  baldwin, the devil finds work, supra note 46, at 568. 49  id. 2012 columbia journal of race and law 260 official memory, legal memory, as a matter of method, can have nothing to say about the original accumulation. law is law to the extent, and only to the extent, that it occults memory of the original accumulation. law makes of the original accumulation something unspeakable. the unspeakable nature of the original accumulation comes from its legal future. the legal is the work, akin to freud’s dreamwork, that constantly creates screen memories of the original accumulation.50 these screen memories are called by many names. all these screen memories can be gathered under one simple phrase: rule of law, its name is legion.51 the screen memory, rule of law, is a primal scene, a kaleidoscope of primal 50  dreamwork, for psychoanalysis, is the process by which unconscious thought is transformed into dreaming. unconscious thought, transformed in any number of ways through condensation, displacement, representation, and secondary revision, the dreamwork, results in the bundle of contradictions, toward a particular direction, that make up the surface or manifest content of the dream. freud deploys a very instructive “kettle logic” to describe the peculiar way that contradictions matter in psychoanalysis: the whole plea—for the dream is nothing else—reminded one vividly of the defence put forward by the man who was charged by one of his neighbours with having given him back a borrowed kettle in a damaged condition. the defendant asserted first, that he had given it back undamaged; secondly that the kettle had a hole in it when he borrowed it; and thirdly, that he had never borrowed a kettle from his neighbour at all. freud, the interpretation of dreams, in freud, the standard edition, vol. iv, supra note 21, at 119-20. for psychoanalysis: a dream is a disguised fulfillment of a repressed wish. the interpretation of dreams has as its object the removal of the disguise to which the dreamer’s thoughts have been subjected. it is, moreover, a highly valuable aid to psycho-analytic technique, for it constitutes the most convenient method of obtaining insight into unconscious psychical life. freud, on psychoanalysis, in freud, the standard edition, vol. xii, supra note 21, at 210. the contradictions that psychoanalysis locates in our dreams are akin to the contradictions that critical theory locates in our jurisprudence. defenders of legal order, when it comes to the damage done to those who inherited only the suffering of the great death event—genocide, colonialism, slavery—are rather like freud’s defendant. all manner of contradictory assertions are made to excuse the fact of present day white-over-black, but they all tend in the same direction, white-over-black. that direction, whiteover-black, comes into view, as in the case of the damaged kettle, by attending to the contradictions themselves. 51  mark 5:9 (king james). 261 temporal power vol. 1:3 scenes, an endless reconstruction of a past that endlessly eludes memory, the always-vanishing-into-repetition original accumulation. rule of law is the primal scene before the collective mind’s eye of those dispossessed who work within the law and who thereby “sing the tune without the words.”52 the dispossessed who labor for legal equality labor for law. such labors fail to accomplish anything save for the eventual erasing of whatever trace of memory may have prompted the soon-to-forget to take action in the first place. the first step, the child’s first step, the turn to law, never led to another step. there was no spark, it was a trick of the light. the child is dead; it was murdered in the original accumulation. now, within the spectacle, it is too late: it is white-over-black to whiteover-black to white-over-black, world without end.53 the child, remember, is dead, it was murdered, and that is how it became the first capital. the thing that moves around making law is a corpse that is possessed and being pursued past death by the furies.54 the furies never stop. our faith already has been taken, that is what faith in law means, faith in repetitions. the repetitions are not life at all and faith in them is not faith. stig dagerman wrote of this tragic condition: with a bitter enjoyment, i wish to see my house collapsing and see myself buried under the snow of forgetfulness. but depression is a russian doll and, in the last doll, there are a knife, a razor blade, a poison, a deep water and a jump in a big hole. i eventually become the slave of all these instruments of death. they follow me as dogs, unless the dog is me. and it seems to me to understand that suicide is the only proof of the human freedom.55 52  dickinson, supra note 1, at 254. 53  ephesians 3:21 (king james). 54  law is a form of possession: the lawyers they conjoin, stand up now, stand up now, the lawyers they conjoin, stand up now; to arrest you they advise, such fury they devise, the devil in them lies, and hath blinded both their eyes. stand up now, stand up now. the diggers’ song, in winstanley ‘the law of freedom’ and other writings 334, 335 (christopher hill ed., 2006). 55  dagerman, our need for consolation, supra note 39. 2012 columbia journal of race and law 262 but there is something, not nothing. how it is that there is something and not nothing cannot be said. the words are gone. the worlds are gone. but there is something, something that comes from nothing, something that is with us in the midnight hour, even in the undiscovered country; there is something we keep even, perhaps only, when dispossessed: so, you, the custodian, recognize, finally, that your life does not belong to you: nothing belongs to you. this will not sound like freedom to western ears, since the western world pivots on the infantile, and, in action, criminal delusions of possession, and of property. but . . . this mighty responsibility is the only freedom. your child does not belong to you, and you must prepare your child to pick up the burden of his life long before the moment when you must lay your burden down.56 none of us can understand anything until everything that we think we have has been taken from us. “so, we must be careful—lest we lose our faith—and become possessed.”57 our possessions possess us. our faith has already been taken. everything has always already been taken. that is the meaning of dispossession. the furies, hounds of heaven,58 follow us (“[t]hey follow me as dogs, unless the dog is me.”59). time cut open the sky. blood rained down on the sea. the furies were born of that blood and water. “afterward, everything is too late.”60 we have and are nothing, nothing but repetition: but, coming from an unsuspected direction, there comes the miracle of liberation. it can occur on the shore, and the same eternity which, moments from now, aroused my dismay is now the witness of my entry into freedom. of what thus consists this miracle? simply in the sudden discovery that nobody, no power, no human being, has the right to express such requirements from me that my desire to live comes to languish. because if this desire does not exist, what can then exist?61 56  baldwin, the devil finds work, supra note 46, at 566-67. 57  id. at 568. 58  thompson, supra note 6. 59  dagerman, our need for consolation, supra note 39. 60  dagerman, to kill a child, supra note 40. 61  dagerman, our need for consolation, supra note 39. 263 temporal power vol. 1:3 but there is something, not nothing. this is the “the miracle of liberation.”62 secure in the faith that nothing belongs to anyone, that not even our lives are our property, we can rejoice.63 we need have nothing to do with whatever it was that the powers and principalities supported by our repeated deaths seemed to possess.64 all they have, and all capital can promise us, is the stuff and nonsense of corpses. “o fearful meditation! where, alack, shall time’s best jewel from time’s chest lie hid?”65 everything has already been taken. “fear not,” for “these are good tidings of great joy, which shall be to all people”66 because “nobody, no power, no human being, has the right to express such requirements from me that my desire to live 62  id. 63  helen keller spoke on political melancholia and hope in an interview: “then i read hg wells’ old worlds for new, summaries of karl marx’s philosophy and his manifestoes. it seemed as if i had been asleep and waked to a new world—a world different from the world i had lived in. “for a time i was depressed”—her voice saddened in reminiscence—“but little by little my confidence came back and i realized that the wonder is not that conditions are so bad, but that society has advanced so far in spite of them. and now i am in the fight to change things. i may be a dreamer, but dreamers are necessary to make facts!” her voice almost shrilled in its triumph, and her hand found and clutched my knee in vibrant emphasis. “and you feel happier than in the beautiful make-believe world you had dreamed?” i questioned. “yes,” she answered with firm finality in the voice which stumbles a little. “reality, even when it is sad is better than illusions.” (this from a woman for whom it would seem all earthly things are but that.) “illusions are at the mercy of any winds that blow. real happiness must come from within, from a fixed purpose and faith in one’s fellow men—and of that i have more than i ever had.” barbara bindley, helen keller—why i became an iww, an interview, n.y. trib., jan. 15, 1916. baldwin, dagerman, and keller write of the same faith. faith in the rule of law is in opposition to “faith in one’s fellow men . . . . so we must be careful, lest we lose our faith and become possessed.” baldwin, the devil finds work, in james baldwin’s collected essays, supra note 26, at 568. 64  ephesians 6:12 (king james). 65  william shakespeare, sonnet 65, george manos, in the sonnet collection of william shakespeare: translated and analyzed 135 (2011). 66  luke 2:10 (king james). 2012 columbia journal of race and law 264 comes to languish. because if this desire does not exist, what can then exist?”67 stones themselves cry out68: you poor take courage you rich take care the earth was made a common treasury for everyone to share.69 from the place where all has been already taken, from our undiscovered country, we can see that we are “custodians.”70 our lives do not belong to us, nothing belongs to us but our freedom. “hope is the thing with feathers,”71 we have only a freedom that comes to us unbidden in the form of a “mighty responsibility”72 to the child that this essay has discussed throughout. our mighty responsibility, because it is a responsibility to another life, takes us beyond the original accumulation, beyond our original line of flight, beyond the undiscovered country, beyond the repetitions. 67  dagerman, our need for consolation, supra note 39. 68  luke 19:40 (king james). 69  rosselson, supra note 37. 70  baldwin, the devil finds work, in james baldwin’s collected essays, supra note 26, at 566-67. 71  dickinson, supra note 1, at 254. 72  baldwin, the devil finds work, in james baldwin’s collected essays, supra note 26, at 566-67. the legal politics of hubert h. harrison: excavating a lost legacy ravi malhotra * “politically, the negro is the touchstone of the modern democratic idea.” —hubert harrison, 1911 introduction the history of african american struggle and advocacy is often divided between those who placed more emphasis on black nationalism and black pride such as marcus garvey and malcolm x, and those advocates of racial justice, such as a. philip randolph and dr. martin luther king jr., who sought the integration of african americans into the mainstream through the advocacy of civil rights and alliances with the labor movement. critical race theorists (crt) have cogently argued the need for anti-racist struggles in the postcivil rights era to address the fact that integration has hardly resolved the continued marginalization and discrimination of african americans in housing, employment, and many other dimensions and to reflect on how law facilitates racial subordination in the postcivil rights era.1 however, this essay suggests that these arguments can be better understood and enriched by a deep appreciation of the breathtaking legacy of hubert henry harrison (1883-1927) and a close reading of his works. as a working class activist and intellectual in both the socialist party and the industrial workers of the world (iww), harrison was later a major influence in marcus garvey’s nationalist movement and the new negro movement, *  associate professor, faculty of law, common law section, university of ottawa. i dedicate this article to dr. jeffrey b. perry who has done more than anyone else to make harrison’s work available to the broader public. i thank professor anthony farley for inviting me to participate in this symposium. 1  see critical race theory: the key writings that formed the movement (kimberlé crenshaw et al. eds., 1995) [hereinafter critical race theory]. 383 the legal politics of hubert h. harrison vol. 1:3 editor of the voice and the negro world, and the founder of the liberty league. largely lost to history, harrison’s astonishing body of work on racism and the political issues of his time force us to rethink a period of african american history that typically has been regarded as a low point in the struggle against racism and white supremacy.2 yet in fact, harrison found answers to the questions that would haunt advocates of racial equality for years to come. both the black socialist tradition and the black nationalist tradition owe an enormous debt to harrison which has not been properly understood to date. as his biographer, jeffrey perry, has aptly noted, harrison was the most class conscious of the race radicals and the most race conscious of the class radicals of his day.3 yet the fact that he died at such a young age combined with his tendency to unflinchingly challenge authority has contributed to historical amnesia about harrison and his legacy. his acerbic wit and rich communicative gifts can only be understood by reading his extensive work of political commentary, book reviews and theater reviews; i can only scratch the surface in the limited space available. yet it is apparent that harrison’s contributions were of the highest intellectual caliber. in this short contribution, this essay provides a brief overview of harrison’s life in part i. in part ii, the essay suggests how harrison can be reasonably regarded as the first critical race theorist. part iii offers some brief conclusions. i. the life of hubert h. harrison in the 1980’s, jeffrey perry, now a retired postal worker who has never been a career academic, wrote his doctoral dissertation about hubert harrison at columbia university. he then released an anthology of harrison’s writings and a biography of harrison based on both archival materials and the discovery of harrison’s 2  some of harrison’s writings may be found in the indispensable a hubert harrison reader (jeffrey b. perry ed., 2001) [hereinafter a hubert harrison reader]. a recent lexis search found only a single hit referencing harrison in american law journals. see john hayakawa torok, freedom now!—race consciousness and the work of de-colonization today, 48 how. l.j. 351 (fall 2004). 3  jeffrey b. perry, hubert harrison: the voice of harlem radicalism, 1883-1918, at 17 (2009). perry is currently writing volume two of harrison’s biography which documents the final decade of harrison’s life. see jeffrey b. perry, an introduction to hubert harrison, “the father of harlem radicalism,” 2 souls 38 (winter 2000). a useful book review is ken olende, black star rising, 123 int’l socialism, june 25, 2009, available at http://www. isj.org.uk/index.php4?id=571&issue=123. http://www.isj.org.uk/index.php4?id=571&issue=123 http://www.isj.org.uk/index.php4?id=571&issue=123 2012 columbia journal of race and law 384 voluminous diaries and some forty annotated scrapbooks.4 until then, harrison’s remarkable, if short, life largely had been lost to history. a. harrison’s early life born april 27, 1883 on the island of st. croix in what was then the danish west indies (now the u.s. virgin islands), harrison was among many west indians who would later immigrate to the united states and play a major role in the political struggles of the day.5 arriving in the united states in 1900, harrison, like other west indian intellectuals who had chosen to emigrate in search of a better life, was struck by the extreme nature of the widespread jim crow segregation and lynchings, which terrorized african americans and plagued american society like a cancer. even in new york city, where harrison settled, african americans were forced to live in expensive but sub-standard housing in harlem and employment opportunities for african american men were greatly restricted because of color bars and racist practices by management and unions alike.6 although st. croix was certainly a society divided by class and race, the absence of a formal system of jim crow segregation enabled a modicum of upward mobility for some afrocaribbeans that allowed harrison to foster his intellectual skills and apparently obtain work as an underteacher.7 harrison commented 4  jeffrey b. perry, acknowledgements, in a hubert harrison reader, supra note 2, at xvii–xviii; perry, supra note 3, at 58. one exception is winston james, holding aloft the banner of ethiopia: caribbean radicalism in early twentieth century america (1998) (discussing harrison’s legacy). 5  perry, supra note 3, at 21–52. the list of radical west indians who influenced the american left includes the jamaican-born marcus garvey, wilfred a. domingo and claude mckay, nevis-born cyril briggs, and of course perhaps most famously, the trinidadian c.l.r. james (1901-1989), who lived in the united states for fifteen years between 1938 and 1953 until his notorious deportation at the height of the mccarthy period. for excellent overviews of james’ life, see paul buhle, c.l.r. james: the artist as revolutionary (1988); kent worcester, c.l.r. james: a political biography (1995); aldon l. nielsen, c.l.r. james: a critical introduction (1997). the extent of the erasure of harrison’s legacy can be illustrated by the fact that there is no evidence that james, one of the world’s leading revolutionary socialists and pan-africanist advocate and like harrison an autodidact, had ever read harrison. 6  perry, supra note 3, at 54. 7  jeffrey b. perry, introduction, in a hubert harrison reader, supra note 2, at 3. 385 the legal politics of hubert h. harrison vol. 1:3 on the differences between danish colonialism and the subsequent american occupation of the virgin islands as follows: during the danish days there were “superior” and “inferior” people on the islands; but in no instance were they made so by the color of their skin. this doctrine of chromatic inferiors and superiors has been violently thrust upon the islanders by the personnel of the naval administration . . . . if the lines of social and economic cleavage had at any time followed those of chromatics . . . i knew of no such thing.8 harrison would soon find himself caught up in the political controversies of the day. despite never going to college and constantly living a precarious economic existence, he was an avid reader and deeply interested in literature, philosophy and culture as well as politics.9 as early as 1903, he began writing correspondence to the new york times and had some twelve letters published in the newspaper by 1910.10 in one of his earliest letters, harrison condemned the lynching of an african american delaware laborer, george white of wilmington, who was accused of assaulting and raping a white teenage girl, and expressed outrage over a letter to the editor defending the practice as justified because of the time consuming nature of the judicial machinery. he also took the opportunity to stress that biologists and ethnologists agreed that “negroes” were just as human as caucasian americans, countering racist descriptions of african americans as beasts and brutes.11 future letters would take up a variety of topics such as the need to challenge white supremacy, the conflict between russia and japan, and racial stereotyping.12 responding to comments by the explicitly racist mississippi governor james k. vardaman about the moral deterioration of the “negro” race and the increased criminality of those african americans who had become literate, harrison asserted that in fact the tens of millions of dollars in 8  perry, supra note 3, at 33. 9  id. at 57. 10  id. at 63. 11  id. at 63–64. harrison made a point of using negro with a capital “n” to reflect his commitment to racial pride at a time when this was uncommon even among leftists. perry notes the new york times did not capitalize negro until after harrison’s death in 1930. see a note on usage, in id., at xxi. the author of this essay follows harrison’s usage when writing historically. 12  id. at 63-69. 2012 columbia journal of race and law 386 property holdings by african americans was a source of pride and he referred to the many professionals of african ancestry including physicians, lawyers, inventors, artists, mathematicians, and sociologists.13 through such letters, and later through participation in the lyceums of st. benedict the moor and st. mark’s churches on west 53rd street, harrison honed his debating skills in a way that enabled him to become an important author, activist, and orator.14 harrison also gained valuable editorial experience by serving as editor of the st. mark lyceum newspaper, the st. mark’s mirror, in 1906 despite his tendency toward atheist beliefs.15 b. postal worker militant in 1907, harrison entered one of the few relatively wellpaying careers available for working class african americans when he obtained employment as a postal worker, earning an initial annual salary of $600, which was increased through successive raises to $1,000 per year by 1910. at the time, only roughly 175 african americans were employed as postal workers in all of new york city.16 labor conditions were draconian and led to a very high turnover rate among employees: twelve hour work days for up to six or even seven days per week in poorly ventilated offices and oppressive managers at a time when the sting of racial oppression was ever present.17 he established a study circle among his fellow postal workers which met at his harlem apartment and discussed various matters related to african american history, including the history of reconstruction.18 in 1908, harrison would give a talk at the young men’s christian association, or y, on reconstruction that was praised in the black press.19 he also began a pioneering black history class on a volunteer basis that same year at the white rose home for colored working girls, an organization that sought 13  perry, supra note 3, at 67–68. 14  id. at 70. 15  id. at 73, 186. 16  id. at 83, 86. 17  id. at 83. harrison also notes the poor treatment of jewish and socialist postal clerks. see id. at 86. 18  perry, supra note 3, at 84. it is noteworthy that despite his vast output, c.l.r. james never devoted sustained attention to analyzing the reconstruction period. see scott mclemee, introduction: the enigma of arrival, in c.l.r. james on the ‘negro question,’ at xi, xxxi–xxxii (scott mclemee ed., 1996). 19  perry, supra note 3, at 97–99. 387 the legal politics of hubert h. harrison vol. 1:3 to assist black women who had arrived in new york from the west indies or the south with housing, education, and child care.20 one important turning point in harrison’s life was the events that led to both his loss of his employment as a postal worker in 1911 and his subsequent political radicalization. in 1910, booker t. washington, clearly one of the most prominent african american leaders of the day and the man who controlled the powerful tuskegee machine, downplayed racism in the southern states in remarks he made to the anti-slavery and aborigines protective society in london, england and which were quoted in various british newspapers.21 washington went so far as to claim that southern blacks had better opportunities than their counterparts almost anywhere else in the world.22 this drew an angry response from w. e. b. du bois and others and they issued a rebuttal that was published in the new york sun.23 the paper then wrote an editorial claiming that the critics of washington ought to be more patient, suggesting that they were simply envious of his success.24 harrison then wrote a rebuttal to the sun editorial and criticized washington by documenting the passage of recent legislation mandating residential racial segregation in baltimore, the disenfranchisement of african americans in oklahoma, and the commitment of the texas government to have its congressional delegation seek the repeal of the fourteenth and fifteenth amendments to the constitution.25 he also showed the limitations of washington’s blinkered political vision of emphasizing industrial training by noting how blatantly racist white unions, such as georgia railway workers in 1909, had opposed seniority rights for african american workers.26 in a second letter responding to rebuttals by washington supporters, harrison observed that they had failed to deny that the array of racist acts which harrison had painstakingly documented was real.27 harrison escalated the controversy by writing further pieces criticizing washington and also condemning the racism of the mainstream media. harrison even chose the taunting moniker, e.t. 20  id. at 95–97. 21  id. at 126. 22  id. 23  id. at 126-27. 24  id. at 127. 25  perry, supra note 3, at 128. 26  id. at 129. this was tragically no isolated example in this period. 27  id. at 130. 2012 columbia journal of race and law 388 washington, to write another piece criticizing racist residential practices and the role that black real estate dealers played in exploiting their vulnerable black customers.28 at this point, washington’s influential allies decided that harrison had to be halted and arranged first for the revocation of harrison’s recent salary increase and then ultimately the dismissal of his employment on trumped up charges of workplace infractions.29 c. socialist party militant increasingly politically radicalized, harrison became a full time organizer for the socialist party by late 1911, thereby rejecting a republican party that was appeasing racism at every turn.30 in a rather sad chapter of american radical history, most of the internally-divided socialist party was not receptive to the notion of paying special attention to fighting racism and white supremacy, even though the division of the working class by race was a major barrier to the multiracial working class solidarity that was essential to actually win strikes.31 the more conservative wing of the socialist party, led by victor berger and morris hillquit, supported working inside the unions organized by the american federation of labor (afl) and transforming society through winning elections rather than radical strike action and revolutionary struggle.32 however, the afl unions tended to be both organized on rather elite craft lines and virulently racist, blatantly advocating a “white first” policy and regarding both african americans and immigrants as threats to their white, working class constituency.33 not only did the afl and the socialist party neglect the oppression of african americans but also many socialist party leaders, including ernest untermann, j. stitt wilson and robert hunter, opposed immigration by asian 28  id. at 131–32. 29  id. at 132. 30  id. at 146. there appears to be no historical record concerning harrison’s views on the more orthodox socialist labor party (slp) led by the curação-born daniel de leon and which published the widely read newspaper, the people. for a brief account of the slp, see frank girard & ben perry, the socialist labor party, 1876-1991: a short history (1991). the slp ceased to have a major impact in american political life after the first world war and degenerated into a tiny sect. 31  perry, supra note 3, at 173-74. 32  id. at 174. 33  for an important analysis of the racism of unions as well as mainstream labor historians, see herbert hill, the problem of race in american labor history, 24 rev. am. hist. 189 (1996). 389 the legal politics of hubert h. harrison vol. 1:3 workers.34 these leaders notoriously maintained that race consciousness had “biological origins” which would “outlast the abolition of capitalism” and which could not be unlearned entirely.35 some socialist party members even openly advocated in the party press for segregated party locals and lamented the brief empowerment of african americans during the days of radical reconstruction.36 nevertheless, for a time, harrison was a loyal socialist party organizer and founded the colored socialist club specifically to facilitate organizing work amongst african american workers, a pioneering effort that has been lost to historic memory.37 in one of his earliest writings for the socialist press, harrison lucidly articulates how the economic fact of slavery required advocates of the status quo to dehumanize the slaves in order to hide the very obvious human qualities, such as “fidelity, courage and intelligence,” which those who worked with slaves saw daily.38 in making this observation, he anticipates by decades the seminal work of scholars of whiteness, such as david roediger, who analyzed how the creation of a white identity was essential for the divisions in the working class necessary to allow the capitalist system to establish itself and expand.39 in another remarkable contribution for the socialist press, harrison penned a rebuttal to rudyard kipling’s notorious 1899 poem, “the white man’s burden,”40 which defended british imperialism as a paternalistic good that helped backward people of color throughout the world. in harrison’s response, which was entitled “the black man’s burden” and appeared in serialized form in the international socialist review in 1912, he openly challenged 34  perry, supra note 3, at 186–87. 35  id. see robert hunter, socialists at work (1908) for an overview of hunter’s conception of socialism. 36  perry, supra note 3, at 214. 37  a hubert harrison reader, supra note 2, at 52. it should be noted that like c.l.r. james, who constantly had to be wary of the immigration authorities because of his illegal status, harrison often wrote using pseudonyms which complicates identifying his scholarship. harrison only acquired citizenship in 1922. perry, supra note 3, at 411 n.2. 38  hubert h. harrison, the negro and socialism: i-the negro problem stated, in a hubert harrison reader, supra note 2, at 54. 39  see david roediger, the wages of whiteness: race and the making of the american working class (1991). 40  rudyard kipling, the white man’s burden, in kipling poems at 9699 (peter washington ed., 2007). 2012 columbia journal of race and law 390 the fraudulent voting practices of the southern states that disenfranchised millions of african americans and documented how this was a retreat from the radical reconstruction period.41 harrison was one of the most vocal opponents of oppressive conditions of african americans in his day. using humor and sarcasm effectively, harrison dissected the ridiculous jim crow laws that shamefully disenfranchised african american men.42 harrison also documented how numerous unions, ranging from representatives of firefighters to pavers to chauffeurs, fought tenaciously against the inclusion of african american labor to the point of occasionally going on strike against racial equality in the workplace and yet condemned african americans when they crossed the picket lines of racist unions.43 he went on to detail how southern blacks were systematically denied equality of funding in education, noting that some counties in georgia spent as little as thirty-nine cents per year on the education of a “negro” child, far less than what was spent on white children or their far better remunerated teachers.44 finally, harrison highlighted the crisis of lynching that remained an enormous social crisis in this grim period of american history. to the modern reader, the number of extrajudicial killings is truly staggering. harrison documented nearly 2,900 between 1884 and 1904, mostly in the south. he also drew attention to the voyeuristic aspects of lynching such as the extraction of body parts as souvenirs.45 taken as a whole, the piece is a poignant rebuttal to kipling’s poem and a lost piece of african american history. d. toward a “race first” paradigm disillusioned by 1914 with the socialist party’s inability to challenge racism and increasingly subjected to bureaucratic internal charges and apathy on the part of the socialist party’s leadership 41  hubert h. harrison, the black man’s burden [i], in a hubert harrison reader, supra note 2, at 64. 42  harrison cited one proposal to amend the georgia state constitution which would only permit an african american man to vote if two chaste white women would swear they would trust him in the dark. the simultaneously racist and sexist implications are revealing. see id. at 65. 43  id. at 66. 44  hubert h. harrison, the black man’s burden [ii], in id., at 67–69. harrison pulled no punches in noting how booker t. washington sent his own children to the best schools and to schools in europe. 45  id. at 70–71. 391 the legal politics of hubert h. harrison vol. 1:3 toward the colored socialist club,46 harrison turned to the more radical industrial workers of the world (iww), when he addressed silk workers in paterson, new jersey at their historic strike in 1913.47 harrison also decided to focus on organizing within the african american community, reaching the conclusion by 1916 that a “race first” approach was essential given the intense racism experienced by african americans.48 he made a living from lecturing on street corners, devoting considerable time to anti-religious free thought politics, women’s suffrage and birth control as well as racial pride and race consciousness.49 the novelist henry miller raved about encountering harrison in his youth, whom he described as his idol: there was no one in those days . . . who could hold a candle to hubert harrison. with a few well-directed words he had the ability to demolish any opponent. he did it neatly and smoothly too, “with kid gloves,” so to speak. i described the wonderful way he smiled, his easy assurance, the great sculptured head which he carried on his shoulders like a lion . . . . 50 in 1917, harrison founded both the liberty league, a black nationalist membership organization, and the voice, the first newspaper of the “new negro movement.”51 the demands of the liberty league were extraordinary. in light of america’s entry into the world war, the league sought self-determination for colonized africans, thereby creatively subverting wilsonian wartime propaganda about democracy by illustrating the oppression of african americans at home and people of color throughout the colonized world.52 on numerous occasions, harrison drew attention to the anti-colonial swadeshi movement in india and the sinn fein in ireland as examples that black nationalists could learn 46  perry, supra note 3, at 176, 204–06. the socialist party would not resume an interest in organizing in the black community until 1917, when, as perry notes, harrison had launched major efforts to radicalize the african american community. 47  id. at 204. one fascinating facet of perry’s immense archival work is his retrieval of photographs of harrison. there is a particularly striking photo reproduced by perry of harrison with radical activists elizabeth gurley flynn and big bill haywood. see id. 48  id. at 8 49  id. at 222. 50  id. at 224–25. 51  perry, supra note 3, at 8. 52  id. at 286–87. 2012 columbia journal of race and law 392 from and embrace.53 the liberty league also demanded racial equality at home through the enforcement of the thirteenth, fourteenth, and fifteenth amendments to the u.s. constitution.54 unlike the more conservative naacp, the league demanded the enactment of anti-lynching legislation and encouraged african americans to engage in armed self-defense in the face of lynchings.55 another catalyst for action by harrison were the tragic east st. louis race riots of 1917, where dozens of african americans were killed and hundreds of buildings were destroyed. he made quick political judgments by specifically calling for fund raising to purchase rifles that would allow blacks to safeguard their lives in the face of lynching and mob violence and for blacks to withdraw their savings from banks in st. louis to impose a financial penalty on the racist community.56 for these acts of courage alone, the liberty league and harrison deserve far more attention and debate than scholars have accorded them to date. harrison simultaneously launched a weekly newspaper, the voice, whose first issue sold out its entire print run of three thousand early and reached both broad segments of the black community in new york, as well as a multiracial audience.57 in launching this finely-edited, race conscious paper, harrison led the way for the emergence of several “new negro” newspapers which have left a lasting legacy in african american cultural life. these papers include the messenger, produced by a. philip randolph and chandler owen, the negro world by marcus garvey, the emancipator, produced by socialist party members thomas a.e. potter, w.a. domingo and frank r. crosswaith, and the crusader, 53  see, e.g., hubert h. harrison, the new policies for the new negro, in a hubert harrison reader, supra note 2, 139–40. harrison also would write about the british exploitation of india. see sayid muhammed berghash (pseudonym of hubert h. harrison), britain in india, in id., at 213-15. for a discussion of the indian swadeshi movement, see anupam chander, diaspora bonds, 76 n.y.u. l. rev. 1005, 1093 (2001). for a discussion of sinn fein during the time of the easter rising of 1916, see kieran mcevoy, prisoners, the agreement, and the political character of the northern ireland conflict, 22 fordham int'l l.j. 1539, 1543-44 (1999) (noting the imprisonment of thousands of people in england, ireland, and wales in the aftermath of the easter rising). 54  perry, supra note 3, at 287. 55  id. at 291. 56  id. at 298-99. shamefully, american federation of labor president samuel gompers primarily blamed the riots on the excessive number of “negroes” that had moved to east st. louis. 57  id. at 301. 393 the legal politics of hubert h. harrison vol. 1:3 produced by future communist party member cyril briggs.58 perhaps reflecting the tremendous political isolation that black nationalist leftists like harrison experienced during the first world war as well as the insensitivity of white leftists, the voice was attacked as superfluous by a prominent member of the socialist party and co-founder of the naacp, mary ovington.59 at the same time, the overt radicalism of the voice had attracted the ominous attention of the war department’s military intelligence branch.60 although the paper would be forced to suspend publication after a few months for nearly a year due to financial difficulties and harrison’s unwillingness to accept degrading advertisements for skin lightening products, its impact in articulating race consciousness should not be underestimated.61 perry estimates that, given the widespread hand-to-hand distribution of newspapers in the african american community, its readership may have been as high as 55,000.62 politically independent of all parties, he challenged the common preference at the time in the black community for republican candidates and devoted space to socialist party and democratic party candidates.63 in a poignant editorial, “houston vs. waco,” harrison denounced a riot in houston, where african american soldiers stationed there who had defied jim crow regulations with respect to segregated theaters, water barrels, and streetcars, were physically attacked and beaten by white police officers sent to enforce the racist regulations.64 several whites, including some five police officers, were killed in the melee, which sparked outrage in the white community and ultimately led to the execution of nineteen african american soldiers.65 harrison deftly situated the racist violence in the broader context of systemic racism that haunted texas, drawing attention to a gruesome act of racist violence in waco, texas that took place the previous year. in that case, thousands of white people, including elected officials, women and children, had assembled to watch as an african american 58  id. at 300; see also a hubert harrison reader, supra note 2, at 107. 59  a hubert harrison reader, supra note 2, at 301–02. ovington was also the chair of the new york branch of the naacp at the time. 60  id. at 302. 61  id. at 305–06. 62  id. at 304. 63  id. at 324. 64  id. at 322. 65  a hubert harrison reader, supra note 2, at 322. 2012 columbia journal of race and law 394 teenager with intellectual disabilities, jesse washington, had his eyes gouged out and was mutilated before being burned to death.66 the relationship between hubert harrison and the jamaican-born marcus garvey also merits exploration and helps understand the contours of harrison’s signal contributions to the new negro movement. although garvey’s universal negro improvement association (unia) has garnered far more scholarly attention, jeffrey perry’s prodigious work demonstrates that garvey in fact joined harrison’s liberty league and accepted speaking platforms and introductions, as well as food and shelter, from harrison and his allies.67 at the beginning, there was a great deal of overlap between the activists of the two organizations. key activists in what evolved into the garvey movement who originally came from harrison’s liberty league included such notables as w.a. domingo, john e. bruce, and poet andy razaf, all of whom became significant contributors for garvey’s negro world.68 according to harrison’s diary, harrison and garvey met in december 1919 and garvey offered harrison a position as editor of the negro world as well as head of a college that garvey was planning to construct.69 in his diary, harrison paints a picture of extreme disorganization and laziness amongst garvey’s associates and indicates how much harrison contributed to transforming the negro world into a professional newspaper with a sharply increased circulation.70 subsequent diary entries, however, are absolutely stinging in conveying harrison’s frustrations with garvey’s pretentiousness and undemocratic style of management. he describes garvey as “spiritually and intellectually a little man.”71 harrison notes how 66  id. at 323. violence against african americans with disabilities was no isolated occurrence. another editorial in the voice described a police attack on a man with epilepsy. see id. at 309–10. while this work no doubt was done without a modern understanding of the oppression of people with disabilities, the reporting of attacks on african americans with disabilities, who were clearly doubly stigmatized and particularly vulnerable to attacks by police and others, is remarkable. for an overview of disability theory that stresses how structural and attitudinal barriers are the primary problem facing people with disabilities, see michael oliver, the politics of disablement (1990). 67  perry, supra note 3, at 294. 68  id. at 337–38. 69  hubert h. harrison, connections with the garvey movement, in a hubert harrison reader, supra note 2, at 182–84. 70  id. at 183–86. perry suggests that under harrison’s editorship in 1920, circulation increased from ten thousand to fifty thousand. 71  hubert h. harrison, on garvey’s character and abilities, in id., at 188, 190. 395 the legal politics of hubert h. harrison vol. 1:3 garvey learned from him and benefitted from the contacts and audiences that harrison provided, but how garvey would never reciprocate once his career as a black nationalist leader exploded into stardom.72 he goes so far as to accuse garvey of lying and wasting tens of thousands of dollars on unnecessary shipping expenses.73 after the first unia international convention, which ran for four weeks in august 1920, harrison’s diary recorded further sharp criticisms of garvey, which provide a damning critique by a contemporary who participated in the events. harrison was clearly appalled at garvey’s theatrical and flamboyant exaggerations, including his clear attempts to manipulate voting of elected positions, as well as his general incompetence. whereas garvey claimed that there were some 25,000 participants, harrison noted that the official balloting for positions indicated a count of only 103.74 after garvey’s conviction in 1923 for mail fraud in relation to his schemes to establish a fleet of largely non-existent or misrepresented vessels and sell passage on them to african americans, harrison wrote a piece for the associated negro press in which he bluntly asserted that garvey had obtained a fair trial.75 true to his “race first” convictions, harrison did not hesitate to point out that all the other co-defendants, who had retained african american attorneys, were acquitted while garvey, who replaced his african american attorney for two white ones, was convicted.76 clearly, rather than basing political commentary on personal rivalries, harrison appeared outraged that garvey was swindling members of his own race, and he also noted garvey’s anti-semitic outbursts upon his criminal conviction.77 harrison spent the rest of his life in the united states, ultimately obtaining american citizenship on september 26, 1922, and he truly identified as an american.78 tragically, harrison died 72  id. at 189–90. 73  id. at 190. garvey had originally wanted to send harrison on an expedition to liberia. 74  hubert h. harrison, the unia convention, in id., at 191. 75  hubert h. harrison, marcus garvey at the bar of united states justice, in a hubert harrison reader, supra note 2, at 194–96. 76  id. 77  id. at 197–98. 78  hubert h. harrison, a st. croix creole, in id., at 240. harrison can be contrasted with c.l.r. james, who ultimately was deported and only returned to visit the united states sporadically decades later and yet bears many striking similarities to harrison. see generally buhle, supra note 5. 2012 columbia journal of race and law 396 of appendicitis at the age of 44 in 1927, which makes it impossible for us to know how he would have analyzed the near collapse of capitalism during the great depression and the rising fervent against institutionalized racism during the second world war.79 ii. harrison’s anticipation of critical race theory in this section, this essay considers how harrison anticipated some of the tenets of critical race theory in his short but remarkable life. in what ways did harrison’s vast contributions find compelling answers to questions that would haunt advocates of racial equality? first, by articulating a movement that placed race at its center, condemned white supremacy, and yet was highly sensitive to class politics, harrison provided compelling answers to questions that would divide advocates of racial justice for years to come. he was critical not simply of the neo-conservative nostrums of booker t. washington but also of w. e. b. du bois’s leadership when he felt it appropriate. he retained skepticism of the notion of an elite “talented tenth”80 who would provide leadership to african americans. he took particular exception to du bois’ 1918 editorial, “close ranks,” which urged african americans to ignore their special grievances and close ranks in light of american entry into the first world war, which du bois viewed as a fight for democracy.81 in doing so, he challenged du bois’ leadership among more militant african americans for ignoring the continued lynching and disenfranchisement of african americans during wartime. more damning, however, was harrison’s conclusion that du bois had agreed to praise the american war effort in exchange for a captaincy in military intelligence.82 in his characteristic biting turn of phrase, harrison remarked: 79  a hubert harrison reader, supra note 2, at 399. it is also revealing that harrison had a major political influence on, inter alia, a young a. philip randolph who would go on to play a historic role in the american civil rights movement, founding the negro american labor council in 1959. see id. at 2; ruben j. garcia, new voices at work: race and gender identity caucuses in the u.s. labor movement, 54 hastings l.j. 79, 93 (2002). 80  w. e. b. du bois, the talented tenth, in the negro problem: a series of articles by representative american negroes of today 33-35 (booker t. washington et al. eds., 1903). 81  hubert h. harrison, the descent of dr. du bois, in a hubert harrison reader, supra note 2, at 170–72. for a masterful biography of du bois, see david l. lewis, w.e.b. du bois: a biography (2009). 82  a hubert harrison reader, supra note 2, at 172. du bois was ultimately not granted a captaincy, at least in part because of the negative coverage from harrison. 397 the legal politics of hubert h. harrison vol. 1:3 for these reasons du bois is regarded much in the same way as a knight in the middle ages who had his armor stripped from him, his arms reversed and his spurs hacked off. this ruins him as an influential person among negroes at this time, alike whether he becomes a captain or remains an editor.83 it is also useful to consider harrison’s specific engagement with law. harrison engaged with law where it was useful, anticipating a generation of critical race theory scholars who would critically engage and subvert racist laws to promote liberation for african americans.84 for example, harrison actually employed legal reasoning to argue that the precedent of the recently-enacted federal prohibition of alcoholic beverages, which was particularly popular in the south, was a valid grounds for passage of federal antilynching legislation that also trumped states’ rights.85 at the same time, harrison promoted a reliance on self-empowerment when the law proved unresponsive. whether in the socialist party or as an independent race conscious radical, harrison86 always sought to look at organizing the rank and file first and to seek social change from below. he was unflinchingly critical of african american elites, who he felt were betraying the interests of the black working class or ignoring wellsprings of revolt that instead could be nurtured. for instance, in praising the jamaican-born j.a. rogers’ book, from superman to man, which was a pioneering analysis of racism, harrison was scathing in his attack on leading african american authorities, including du bois, monroe trotter, and many others, who had 83  id. 84  see generally critical race theory, supra note 1. 85  perry, supra note 3, at 290–91. of course, proponents of prohibition eventually secured the enactment of the eighteenth amendment which prohibited intoxicating liquors. the legislation, introduced by representative leonidas c. dyer, eventually was blocked in the senate. see barbara holden-smith, lynching, federalism and the intersection of race and gender in the progressive era, 8 yale j.l. & feminism 31, 54-55 (outlining history of dyer bill). 86  in this way, harrison was also akin to c.l.r. james and james’ highly creative followers in the 1940’s in the johnson-forest tendency. see marxism for our times: c.l.r. james on revolutionary organization (martin glaberman ed., 1999) for a collection of writings providing an overview of james’ thought. johnson was james’ pseudonym and forest was the pseudonym of his colleague, raya dunayevskaya, who went on to make major contributions of her own on marxist thought. see raya dunayevskaya, marxism and freedom: from 1776 until today (1958). 2012 columbia journal of race and law 398 received copies but completely ignored the text.87 harrison observed that even the naacp and several black newspapers that were sent copies ignored rogers’ text and most did not even acknowledge receipt.88 in making this argument, harrison identifies the gulf that separates elites, which he describes as “big negroes,” from the rank and file masses, to whom he clearly devoted most of his energies.89 this important lesson regarding the efficacy of grassroots mobilization remains vital for the reinvigoration of the social movements today. in this way, harrison’s focus on the rank and file masses anticipates debates within crt about the limitations of using law as a strategy for social transformation after a small elite, in the post-civil rights era, had been incorporated into the power structure while conditions have continued to deteriorate for the majority of african americans.90 harrison’s commitment to internationalism is one that modern black nationalist movements need to seriously contemplate. this emphasis is another dividing line in modern crt.91 this essay already has discussed harrison’s sharp awareness of political developments in india and ireland. there were, however, many other examples. in the early 1920’s, harrison contributed a column to the negro world entitled “west indian news notes,” which was so polemical that british military intelligence, the colonial power in much of the west indies, contacted their american counterparts about harrison’s activities.92 his internationalist commitments especially shine through in one piece documenting american brutality in its lengthy occupation of haiti. in that piece, harrison described haitians as being “shot, sabred and bombed”93 and urged african americans to demand that congress investigate “this american ireland”.94 while modern proponents of crt debate the extent to which to incorporate a praxis of internationalism into 87  hubert h. harrison, white people versus negroes: being the story of a great book, in a hubert harrison reader, supra note 2, at 301, 302. 88  id. at 303. 89  id. at 303–04. 90  see, e.g., derrick bell, remembrances of racism past: getting beyond the civil rights decline, in race in america: the struggle for equality 73, 75 (herbert hill & james e. jones jr., eds. 1993) (noting continued segregation in education and housing). 91  see, e.g., symposium cluster, globalization or global subordination?: how latcrit links the local to global and the global to the local, 33 u.c. davis l. rev. 1429, 1438 (2000) (documenting links between crt scholars and international movements). 92  a hubert harrison reader, supra note 2, at 234. 93  hubert h. harrison, help wanted for hayti, in id., at 234, 235. 94  id. 399 the legal politics of hubert h. harrison vol. 1:3 crt, harrison was often at his polemical best in denouncing atrocities abroad, as he did when linking together these two important struggles of the day, in ireland and haiti. finally, perhaps one of his boldest moves was his willingness to address discrimination against darker skinned african americans within the african american community. in this way, harrison willingly took up another issue that modern crts seldom or reluctantly address. he openly asserted that african american society had a systematic bias against darker skinned people.95 he was highly critical of churches in particular for perpetuating a hierarchy between lighter-skinned “mulattoes” and darker-skinned african americans, and he went so far as to say “there is more color prejudice among negroes against negroes than exists among white people against negroes.”96 writing in garvey’s negro world in 1920, harrison pulled no punches in attacking the hypocrisy of what he regarded as a lighter skinned aristocracy that demanded the end of jim crow rules from whites and yet imposed discrimination on darker skinned blacks.97 in his characteristically blunt style, harrison commented: we have read the fervid jeremiads of “colored” men who, when addressing the whites on behalf of some privilege which they wished to share with them, would be, in words, as black as the ace of spades, but, when it came to mixing with “their kind,” they were professional lily-whites, and we have often had to point out to them that there is no color prejudice in americaexcept among “colored” people. those who may be inclined to be angry at the broaching of this subject are respectfully requested to ponder that pungent fact.98 he noted that dark-skinned blacks, such as toussaint l’ouverture, the leader of the haitian revolution, aroused a degree of pride amongst black people that was qualitatively deeper than the pride felt for those of mixed race.99 harrison was particularly critical of 95  perry, supra note 3, at 276. 96  id. at 275 (citing john edward bruce, bruce grit’s column, gazette, jan. 20, 1917). 97  hubert h. harrison, a tender point, in a hubert harrison reader, supra note 2, at 178–80. 98  id. at 179. 99  id. at 180. the example of toussaint l’ouverture is striking and suggests harrison’s caribbean roots when one considers how his story would be so elegantly conveyed in c.l.r. james’ most famous work some eighteen 2012 columbia journal of race and law 400 cosmetics products used to straighten hair and lighten complexion, expressing the view that their use had more to do with internal politics in the african american community than any racist preference by white employers for lighter skinned african americans.100 ironically enough, the negro world itself was carrying the very same advertisements by 1923, within a year of harrison’s departure.101 in this analysis, harrison arguably anticipates by decades crt scholarship on race as performance and passing.102 iii. conclusion in this brief space, i have only been able to give the shortest glimpse into the lost world of hubert harrison and an overview of the highlights of his life and his many works. harrison anticipates a black nationalist approach that takes the perspective of the most marginalized african americans as its starting point and its political foundation. he was fearless in his willingness to challenge authority regardless of the personal costs, undoubtedly part of the reason he has been so neglected in african american history. second, he made efforts to use law where it seemed useful and a more radical approach where it did not. third, he was consistently internationalist in his thinking and approach to black politics, a quality that ought to be replicated today. finally, he addressed discrimination based on color within the african american community, a topic regarded by many in his time as too controversial to address. collectively, his corpus is rich with lessons years later. see c.l.r. james, the black jacobins: toussaint l’ouverture and the san domingo revolution (1938). a film about toussaint l’ouverture’s life, toussaint, directed by danny glover, is scheduled for release in 2013. see toussaint, imdb.com, http://www.imdb.com/title/ tt0785063/. 100  a hubert harrison reader, supra note 2, at 254–55. 101  james, supra note 4, at 149–50. 102  see, e.g., devon carbado & mitu gulati, the law and economics of critical race theory: crossroads, directions, and a new critical theory, 112 yale l.j. 1757 (2003) (applying crt concepts such as racial performativity to law and economics); camille gear rich, performing racial and ethnic identity: discrimination by proxy and the future of title vii, 79 n.y.u. l. rev. 1134 (2004) (arguing title vii jurisprudence ought to protect performative aspects of race); robert westley, first-time encounters: “passing” revisited and demystification as a critical practice, 18 yale l. & pol’y rev. 297 (2000) (analyzing passing in context of racial determination trials). there is also a fascinating discussion of the relationship between skin color and choice of cricket team in c.l.r. james’ classic book on cricket. see c.l.r. james, beyond a boundary (1963) (describing how he chose maple, the team for lighter skinned blacks rather than shannon). this is a necessarily truncated sample of a vast literature. http://www.imdb.com/title/tt0785063/ http://www.imdb.com/title/tt0785063/ 401 the legal politics of hubert h. harrison vol. 1:3 for crt scholars today and reading his work will richly repay the reader. like c.l.r. james, he was that rare breed: a workerintellectual who devoted his life to the working class. unlike james, harrison managed to eventually acquire american citizenship in the final years of life only to die tragically young in his 40s. a fuller understanding can only be gleaned by reading the emerging scholarship on harrison. two major facets that this essay has largely ignored are his longstanding commitment to atheism and his interventions in such philosophical debates and his extensive commitment to cultural analysis through the form of theater and literary reviews in his later years. harrison’s response to the bolshevik revolution and the rise of the communist party also requires further consideration. the indispensable starting point to understanding harrison is jeffrey perry’s multi-volume biography; we anxiously await publication of the second volume, which details the final decade of harrison’s life. as with c.l.r. james, let us hope that there will be in coming years a flourishing of literature excavating the lost harrisonite left of the 1910’s and the 1920’s. bermudez stolen happiness february edits 2013 columbia journal of race and law   203       stolen happiness fernando bermudez the wrongful arrest and conviction of fernando bermudez demonstrates the american criminal justice system being forced to correct itself, despite public faith in jury trials, because mr. bermudez fought to exonerate himself after losing ten appeals. mr. bermudez’s essay entails his over eighteen-year wrongful incarceration in new york until proven “actually innocent” in 2009. this essay urges reform and accountability of mistaken eyewitness identification, perjured testimony, and police and prosecutorial misconduct as factors that began mr. bermudez’s ordeal in 1991. in particular, this essay examines how race, rushed judgment, and profit may have contributed to mr. bermudez’s ordeal while aiming to prevent the overall public safety and human rights problem of the innocent in prison and mass incarceration. introduction how is it that i lost over eighteen years in prison and forced the american criminal justice system to prove my “actual innocence” despite public faith in jury trials? it has been legally proven that mistaken eyewitness identification, false testimony, illegal identification procedures, and police and prosecutorial misconduct directly caused my ordeal that urges legislative reform and accountability. however, there are, i believe, factors related to race, rushed judgment, and profit that may have also contributed to my preventable ordeal. together, these factors may have cooperated to help steal my happiness as part of america’s continuing problem with the innocent in prison and mass incarceration, now shared as hard-won insight from observations during and after my wrongful incarceration. school of hard knocks my crash course in thwarted due process began the morning of august 6, 1991, on the heels of rodney king’s videotaped beating by los angeles police officers and as south african apartheid approached its end. race, rushed judgment, and profit seeking contributed to my unjust incarceration. amid my mother’s screams, detectives arrested me in front of my washington heights home in upper manhattan, new york city, which i shared with my parents and four younger siblings. after holding guns to my temple and pat-frisking me, detectives squeezed me between two detectives in a squad car with handcuffs as tight as tourniquets. a burly detective jokingly apologized for cutting my night short while his partner, in utter seriousness, remarks in a boston accent, “let’s move this cah!” as our caravan sped off, my mind whirled in shock and disbelief, unaware of the murder charge against me. hours later, i was fingerprinted and photographed in manhattan’s sixth precinct. in response to questions about my whereabouts on august 3 and 4, 1991, i explained that i had just taken a college placement test and planned to enter the medical profession. i was twenty-two and enjoying the happiest time of my life. i had been driving around with friends in my father’s car, which had been repaired earlier that afternoon. bewildered, i emphasized that i had nothing to do with any violence, let alone violence at the marc ballroom where teenagers crowded to party that evening. 204 stolen happiness vol. 3:2       the shooting i was arrested for fatally shooting raymond blount as he left a crowded party at the marc ballroom. according to police, raymond blount had punched efrain “shorty” lopez. seeking revenge, lopez identified blount to his neighborhood friend, street-named “woolu,” who law enforcement admits ignoring. as bottles and fists flew, woolu emerged from a large group of latino youths and shot blount dead. despite the aligning information obtained from my friends in separate interviews, rookie homicide detective daniel massanova and veteran prosecutor james rodriguez rejected my alibi. at the police precinct, blount’s best friends, along with four other teenaged witnesses, illegally discussed and shared mug shots, and blount’s best friends correctly identified lopez as the shooter’s accomplice. when questioned by police on august 5, 1991, lopez repeatedly identified the killer in his videotaped interrogation to det. massanova and prosecutor rodriguez as “woolu,” “lou,” and “luis.”1 police reports described the shooter as 5’10” tall, 165 pounds. i am 6’2” tall, 215 pounds, and my street name was “most.” i do not match the description of the shooter that lopez revealed. these exonerating facts should have logically prevented this case from hurling into the twilight zone. descent into madness instead, murphy's law continued, from illegal photo identification procedures to an unfair seated lineup with plainclothes detectives that hid my true height and weight. then, after waiting for hours in hot, crowded jail cells to plead innocent before a judge where a stench of sweat, vomit, and urine hung with my fate like humidity in the air, i entered rikers island. rikers island is the largest penal colony in america. it still serves as a detention center for those arrested in new york city awaiting resolution of charges. grey, desolate, and foreboding, this urban gulag archipelago was a hotbed of violence for over 14,000 prisoners after a bloody riot in the summer of 1990. when i arrived in 1991, violent incidents numbered 2,500,2 nearly the average annual homicide rate in new york city since 1989,3 which caused the new york times to dub rikers island a place where there is a “bloody struggle for control.”4 stripped naked in crowded jail cells, my hands as fig leaves while waiting inspection by prison guards, i await my criminal trial. during my fourteen-month incarceration, rikers island was a human tinderbox; emergency response alarms blared daily to quell violence. i witnessed many inmates hurting each other with crude weapons called “shanks” for control of inmate phones and illegal drugs amid delusional mandates for respect. i, too, was physically assaulted. besides razors and even a gun that inmates smuggle to shoot each other with, shanks come from metal in hospital casts, broken fans, radiators and toothbrush plastic, sharpened on concrete, at times dipped in feces for added skin infection in bloody conflicts. rikers created a fear-driven urge in me to survive knowing i could die in prison, which worsened as my wrongful arrest and imprisonment continued. disbelief to disillusion in january 1992, i sat incredulous during my trial, overcome as if having an out-of-body experience. five teenage witnesses had paraded a chicanery of lies, confusion, and deceit before the                                                                                                                 1 people v. bermudez, no. 8759/91, 2009 wl 3823270, at *4, *6 (n.y. sup. ct. nov. 9, 2009). 2 tim golden, inside rikers island: a bloody struggle for control, n.y. times (sept. 1, 1990), http://www.nytimes.com/1990/09/01/nyregion/inside-rikers-island-a-bloody-struggle-for-control.html. 3 kenneth tardiff et al., homicide in new york city: cocaine use and firearms, 272 j. am. med. ass’n 43, 45 (1994) (“cocaine was found in 31% of the 4, 298 people murdered in new york city in 1990 and 1991.”). 4 golden, supra note 2. 2013 columbia journal of race and law   205       judge and jury. one witness, testifying under a false name, admitted to being drunk the night of the shooting.5 two other witnesses, arrested because they refused to testify, had their unrelated criminal charges dismissed before my trial, which they later revealed encouraged their cooperation.6 it does not matter that three of blount’s best friends testifed in my defense, or that my alibi witnesses and i took the stand, placing me miles away from the shooting. it does not matter that i passed a lie detector test and there is no physical or forensic evidence linking me to the crime. nor does it matter that the prosecutor hid from the jury other latino suspects that witnesses had identified and had systematically eliminated all latinos from the jury to bias them against me. the jury nevertheless found me guilty of second-degree murder. hope springs eternal? despite these horrible facts, it seems that this unfair verdict may be overturned because of new evidence of my innocence and other prosecutorial improprieties against my defense revealed before and since my trial. in march 1992, my private investigator, michael gaynor, had discovered “woolu’s” real identity, location, friendly relationship to lopez, and the fact that he left new york after the murder— which detective massanova promised to investigate, but ignored.7 at this point, the presiding judge at my trial, justice john a. k. bradley, could have stopped my sentencing in light of my defense’s disadvantage from the late disclosure of evidence by the prosecution. he also could have reviewed additional evidence discovered after my trial, such as lopez’s recantation affirming his perjurious testimony. yet judge bradley refused, ordering me to stand in his courtroom as court officers surrounded me on september 18, 1992. standing before him, i exclaimed: i never did this. i had no reason to do this. never, never. i would never wish bodily harm on anybody. . . . [s]omething is wrong here. if something wasn’t wrong it would have been a senseless thing, but something is wrong. you can tell something is wrong. people are lying, people are wrong. i’m not wooloo. i never killed anybody or ever will. . . . justice has not been done here. i only wish god could come as my witness and . . . make justice for real . . . .8 wobbly, i almost dropped into my chair when i was sentenced to life in prison, but handcuffs lifted me away. judge bradley’s denial of my attorney’s review of exonerating evidence hidden by the prosecutor until jury selection had hurt my defense—the jury did not hear lopez’s unredacted videotaped interrogation naming the alleged real perpetrator as a drug dealer from his west 90s manhattan neighborhood named “woolu,” “lou,” or “luis.” this gave lopez, the prosecution’s star witness, the chance to enter into a cooperation agreement that dismissed his accomplice-to-murder charge, and allowed him to commit perjury against me without the jury’s knowledge. the spark of education convicted of murder, my head was shaved bald by the new york state department of corrections (docs). they replaced my civilian clothing with green prison uniforms and identification numbers that challenged my humanity. they also strip-searched me naked each time i saw my family six hours away. to find judicial relief, i must prove that the jury was deceived and that i was deprived of                                                                                                                 5 people v. bermudez, no. 8759/91, 2009 wl 3823270, at *30 (n.y. sup. ct. nov. 9, 2009). 6 id. at *32. 7 id. at *15–16. 8 trial tr. 1739–40. 206 stolen happiness vol. 3:2       due process. unfortunately, appeals take time, their odds of success remote, and my mind battles to become either my worst enemy or best friend! consequently, while doing time in prison instead of, as the saying goes, “letting time do me,” i exercise to relieve stress and clear my thinking. i resumed my college vision from city streets early in my incarceration by educating myself at every opportunity. in doing so, i avoided the idleness, gossip, and rumors that dominate the dangerous prison environments, as well as television, the department of correction’s modern equivalent of the roman empire’s bread and circuses, used to pacify its ancient population. seeking truth as my educational efforts continued, my father continued his quest for justice. in 1993, he secured pro bono attorney maryann dibari. dibari and private investigator michael gaynor investigated post-trial evidence, including lopez’s 1992 recantation and claims that threats by detective massanova and prosecutor rodriguez coerced him into falsely identifying me. thankfully, dibari and gaynor replaced my parents, who had been investigating and searching for leads in the west 90s neighborhood with my then 8-year-old diabetic sister in tow. during one of these precarious undertakings, my father encountered a shady character who invited him into a dark building to receive an investigative lead. fortunately, my father declined, suspecting insincerity to expose the truth. so, too, with law enforcement’s admitted neglect to investigate this neighborhood after my father shared developing leads with its local police precinct in vain. still, my parents do not quit. my mother created gift basket raffle sales and cleaned apartments to pay transcript and attorney fees for appeals before and after judge bradley, which proved unsuccessful year after year despite pro bono help from maryann. they conducted media interviews to get my case re-opened, which encouraged my dad to re-focus against alcohol’s empty promises. they hoped again and again that injustice would not dash their american dreams. persistence pays continuous reading helped me ace a legal research course, obtain my first college degree in 1997, and a teaching certificate to help teach latin american history in prison. this refined my writing and communication skills to obtain more pro bono attorneys in 2007 after losing ten appeals through the benefits of solitude amid my involuntary servitude. solitude, unlike possible mental torture from isolation, set me apart from the prison population “not on their job,” as it were. through solitude my cell became a window to the world, a laboratory bubbling with knowledge where i envisioned myself vindicated to help society prevent the horror of wrongful convictions. here, i listened to my radio for current events when not researching, writing, or typing in the prison law library. solitude also helped me envision a business plan to re-sell clothes in prison purchased wholesale, which helped my wife and three children survive poverty and near homelessness as i struggled to survive twenty-four hours a day in prison that seemed like forty-eight. by 2007, expanded efforts distinguished me from over two million american inmates, allowing me to avoid becoming unproductive and incessantly miserable. inspired by the dreyfus affair and the way its champions corrected anti-semitic military injustice in the late nineteenth century,9 i formed a freedom committee: “fernando bermudez is innocent,” or fbii. the committee established my case on court tv, now trutv, aired in late 2005, which inspired rallies in lower manhattan. this pushed my                                                                                                                 9 douglas porch, the dreyfus nightmare, 25 military hist. 40, 42 (2008). 2013 columbia journal of race and law   207       case into the national spotlight again, after nbc nightly news coverage in 1996 and the 2003 release of dr. scott christian’s book featuring my plight, entitled innocent.10 and an fbii-created dvd compiling my case’s extensive media coverage and featuring attorney maryann dibari discussing the exculpatory legal documents and evidence inspired more help.11 shuffling the deck consequently, fate deals my case favorable cards in 2007 as i began completing my bachelor’s degree in behavioral science at sing sing state prison. a new pro bono attorney, leslie risinger, strategized that accumulated evidence of my innocence, including a federal judge’s ruling in 2004 that my identification procedures were tainted, could launch a new state court proceeding. she recruited her seton hall law professor husband, michael risinger, along with lead counsel, barry pollack, from miller & chevalier in washington d.c., who involved alan kaufman, a former chief federal prosecutor and attorney at kelly drye & warren, llp, new york. together with amicus briefs by centurion ministries in new jersey, new york's innocence project, and davis polk & wardwell, llp, we entered new york state supreme court in 2008, hopeful that our cpl 440.10 motion would succeed in overturning my conviction on actual innocence grounds. a new state supreme court judge, justice john cataldo, granted the prosecution’s request to investigate our claims. in august 2009, he ordered an evidentiary hearing on my cpl 440.10 motion. he then ordered an evidentiary hearing in august 2009 after my attorney, lesley risinger, obtained undisclosed documents inside the prosecutor’s office that proved my innocence further. this newly discovered evidence included not only failure to disclose exculpatory evidence from the prosecution’s secret investigation in 2006 involving an interview of luis munoz, aka woolu, whose 1991 alibi proved false; it also forced the prosecution to admit that its star witness, efraim lopez, gave false testimony at my trial, and that woolu has been arrested several times in other states under the alias, luis alonzo, since leaving new york after the murder. justice cataldo’s evidentiary hearing order on “clear and convincing” evidence of my actual innocence began in september 2009. eighteen years after my original trial, he criticized the prosecution’s efforts to investigate my case. days before the hearing, my family and i had rejected the prosecution’s offer for me to accept time served in alford plea form to manslaughter instead of my second-degree homicide conviction. rejecting this faustian bargain, of course, meant that if i lost this appeal, a parole board could deny my freedom for many years beyond my scheduled 2014 appearance, especially if i would not admit guilt or express remorse before them. still, my wife and i prayed, cried, and hugged our children during our last conjugal visit that summer, having faith in god that the mark of cain against me would vanish and bring me home to address several problems, including my eldest daughter having then been hit by a car. our hopes and prayers proved true in november 2009, after eleven appeals, eleven defense witnesses, and an eleventh hour appeal! justice cataldo silenced a packed courtroom to rapt attention as reporters scribbled furiously and cameras rolled. everyone braced themselves, sighs of relief punctuating the courtroom as justice cataldo proclaimed:                                                                                                                 10 see paul von zielbauer, accusers recant, but hope still fade in sing sing, n.y. times (april 13, 2007), http://www.nytimes.com/2007/04/13/nyregion/13appeal.html?pagewanted=1&_r=3&sq&st=nyt&scp=7&. 11 one of these sources of help was journalist claude solnik, who joined my defense in 1991 and always urged the manhattan district attorney’s office to investigate my case. 208 stolen happiness vol. 3:2       defendant’s motion to vacate his conviction upon the ground of newly discovered evidence, pursuant to cpl 440.10(1)(g), is granted. further, defendant’s motion to vacate his conviction upon the ground that material evidence adduced at trial was false, or should have been known by the prosecutor to be false, is granted. cpl 440.10(1)(c). defendant’s motion to vacate his conviction upon the ground that unduly suggestive procedures took place which violated defendant’s rights under the constitution of this state and the federal constitution is granted. cpl 440.10(1)(h). pursuant to cpl 440.10(1)(c)(g) & (h), a new trial is the appropriate remedy. however, i find by clear and convincing evidence, that the defendant has demonstrated his actual innocence. accordingly, defendant’s motion to vacate his conviction is granted and the indictment is dismissed with prejudice.12 at this point i neither heard justice john cataldo’s entire decision nor his apology on behalf of new york state and “hope for a much better future”13 for me because i was crying in joyful relief, oblivious, while hugging my attorneys. indeed, to paraphrase the late justice louis brandeis, the sunlight of truth had become the best disinfectant against rotten lies, an anemic investigation, and the machinations of an adversarial system that seemed to take it personally because my immigrant parents loved me and would not quit until their son returned home. a new beginning had dawned, rays of hope evident, and in the streets outside justice cataldo’s courtroom, away from the few remaining in god we trust symbols in american courtrooms, my supporters danced, wearing fbii t-shirts. my wife tearfully thanked jesus before an abc news microphone, my mother cried how “happy, happy, happy” she felt, and attorney barry pollack explains our legal victory. from a cave in israel, maryann dibari, having beaten malignant breast cancer which had incapacitated her between 2002 and 2005, praised god for justice with fellow worshippers, renegotiating with god, she said, to grant her life beyond our legal victory as spring in the winter of my life has finally arrived! a new beginning soon, huge metal prison doors cracked open as if a medieval fortress, allowing my wife and i to first pick up our three children from our connecticut home14 and her parents visiting from oklahoma. that night, we returned to washington heights, new york city. en route, i ate my first big mac, which delighted a new york times reporter accompanying us on this different caravan enjoying freedom.15 my old neighborhood, drastically changed, gave me a hero’s welcome as residents banged pots and pans, cheered from windows and a crowded street with reporters amid reverberating chants in spanish of “libertad, verdad, justicia!” or freedom, truth, justice. my parents’ home never felt better and an invigorating first run in my childhood stomping ground, inwood park, marked the finishing line from prison yards where i ran to ease my anxiety to a happier life with my beautiful three children and my wife’s superb cooking.                                                                                                                 12 people v. bermudez, no. 8759/91, 2009 wl 3823270, at *36 (n.y. sup. ct. nov. 9, 2009). 13 john eligon, man jailed for ’91 murder is cleared by judge, n.y. times, nov. 13, 2009, at a23, available at http://www.nytimes.com/2009/11/13/nyregion/13freed.html. 14 john eligon, after 18 years, freed to a world with cellphones, n.y. times, nov. 21, 2009, at a17, available at http://www.nytimes.com/2009/11/21/nyregion/21released.html. 15 id. 2013 columbia journal of race and law   209       adjusting and giving back the manhattan district attorney’s office declined to appeal justice john cataldo’s decision in a letter dated january 27, 2010. in 2012, i helped connecticut legislators abolish its death penalty16 while completing my bachelor’s degree in behavioral science (summa cum laude). unsurprisingly, post traumatic stress disorder affects my life through anxiety, depression, hyper-vigilance, nightmares, waking up as if incarcerated, obsessive-compulsive behavior, and fear of being wrongfully arrested again. however, my psychologist, church, and wife are helping me adjust to society, which urges my public speaking to prevent my ordeal from happening to others. consequently, i have lectured at over 200 venues since my release. these venues include top-notch universities, colleges, high schools, elementary schools, law firms, faith-based institutions, non-profit organizations, and even courtrooms per invite by federal judges as i consider law school and ph.d. degree offers while also lecturing throughout countries like italy, germany, japan, and france. yet my efforts have only begun because freedom allows countless possibilities, right? for this reason, i first thank god for helping me to survive my legal nightmare because i am a dominican-american male entrusted to address criminal justice system strengths and imperfections. while compensation can neither return my lost youth in prison nor make amends, i strive with my wife and children to encourage others to appreciate life and not take it for granted. my higher calling, i believe, shares my experiences as a responsibility and cautionary tale for audiences to avoid the perils of arrest while encouraging them to overcome adversity through faith, hope, and determination. to this end, law students set on becoming prosecutors have revealed that my story encourages them to be extra careful. i’ve had an 80-year-old lady kiss my forehead at her grandson’s high school. i’ve had university dinners with students and professors where our q&a sessions continue long after food. people in churches have pressed money in my hand to say thanks for sharing. moreover, to help the innocent in prison, i’ve raised charitable contributions for new york’s innocence project after its supporters were inspired by my case.17 in short, i teach people to follow their dreams and never quit because i never did! discussing the problem through observations sharing my ordeal and accomplishments now offers an occasion to discuss how racism, rushed judgment and profit seeking contributed to my unjust conviction, and continues contributing to mass incarceration in america. accordingly, i first contextualize my life. i was born and raised in the inwood section of washington heights, a predominantly dominican, middle-class neighborhood that tempered the mystical optimism of hard-working immigrants seeking better lives against the allure of illegal money. as such, i regret my marijuana arrest, which resulted in the mug shot that led to my misidentification and civil rights violations against me. my dominican parents worked hard—my father a garage attendant, and my mother a devoted housewife—to send my siblings and me to private schools until our high school graduations, which gave me confidence that i could accomplish anything. few reasons exist, therefore, aside from greed and impatience, for me yielding to the temptation, discouragement, and materialistic peer pressure of urban streets when multiple jobs i applied for did not call. however, in accepting responsibility for my mistakes i also believe that my ignorance, lack of positive role models,                                                                                                                 16 fernando bermudez, testimony in support of sb 280, march 2012, http://www.cga.ct.gov/2012/juddata/tmy/2012sb-00280-r000314-fernando%20bermudez%20-tmy.pdf. 17 the innocence project, annual report 23 (2010), http://www.innocenceproject.org/docs/2010innocenceprojectannualreport.pdf. 210 stolen happiness vol. 3:2       and lack of educational ambition within my community hindered my potential for which i sought personal change and atonement by enrolling in college in 1991. but a murder charge? the effects of racism and arrest according to merriam-webster's dictionary, racism is a “belief that race is the primary determinant of human traits and capacities” that also involves “discrimination.”18 by extension, my dominican race and past arrest supports that racism led to my unjust conviction because proof exists that authorities considered me a worthless criminal, who society would not miss. i believe that arrest records may also desensitize law enforcement's responsibility for truth and justice in unrelated cases, especially for people of color like me who may be distinguished as a class of society's undesirables, and thus discriminated against, due to a past arrest. this class of people may be considered disposable, and then grouped into prejudicial stereotypes with the following syllogism: “fernando bermudez is a young dominican man; all young dominican men are drug dealers; therefore, fernando bermudez is a drug dealer.” a march 1992 recorded conversation between my private investigator, mike gaynor, and detective massanova regarding gaynor’s new evidence of the true perpetrator’s identity and location is telling. besides ignoring gaynor’s post-trial leads, massanova calls lopez a “piece of garbage,” not a “credible upstanding citizen.” massanova concludes that my past is “why witnesses might feel intimidated” and that “[if] it not for this [homicide conviction], bermudez would be in jail anyway.” this raises the question of what, exactly, did authorities unethically tell witnesses to discriminate and prejudice me? consider my alibi witness, leonard macaluso, who in 1991 was working for columbia university, and chauffeured columbia university's top academic staff. in our recent interview, he repeated det. massanova's racist remarks against me, namely, that det. massanova asked him why he was “hanging with spics” and that if he did not come clean, despite their mutual italian heritage, macaluso himself would be charged with a crime.19 then there are the five prosecution witnesses who finally shared their 1993 recantations at my 2002 writ of habeas corpus evidentiary hearing before a federal judge, unlike judge bradley who repeatedly denied me. prosecution witnesses opka iyesi and jaime velasquez testified that despite doubts, their false identifications against me at trial continued because prosecutor rodriguez and detective massanova referred to me as a dangerous drug dealer, whom they should fear. their testimony supports a recorded interview of another alibi witness, nelson aquavivas, during which prosecutor rodriguez calls me a drug dealer who must have owned a gun. it also supports his closing arguments at my trial, deemed prejudicial and discriminatory by the federal evidentiary hearing judge, because prosecutor rodriguez belittled my cultural upbringing as a spoiled latino brat, as well as a thief. this unethical behavior at my trial, as if implying most dominican mothers pamper their boys, supports my mother’s complaint that prosecutor rodriguez accused her of lying about my physical appearance on august 3 and 4, 1991. his threats that i could expect life in prison seemed spoken with such self-hatred as if to deny what might be his half-latino ethnicity. to date, my mother’s plea for justice, she says, made her feel as if prosecutor rodriguez thought her powerless for being a poor,                                                                                                                 18 racism, merriam-webster, http://www.merriam-webster.com/dictionary/racism (last visited april 30, 2013). 19 interview with leonard macaluso (feb. 12, 2013). 2013 columbia journal of race and law   211       uneducated, immigrant woman. and because my family lacked resources to hire a decent lawyer, prosecutor rodriguez also played the race card: he eliminated all latino jurors knowing that with a black murder victim attacked by latino males, black jurors would side against me—and they did. as such, this case used all black and latino teenage witnesses against me as cards in a manipulated, cheating card game to secure an unjust conviction without regard for our human value and the inevitable scars that our involvement would bear. but this is how racism works because it is the belief that members of a certain race share certain attributes which make that group as a whole less desirable, more desirable, inferior, or superior since every prosecution witness involved also had arrest records. effects of racism toward rushed judgment racism's corrupting effects, in my view, cloud thinking because they involve negative emotions like hate and anger from prejudice that hinders good judgment while promoting what cognitive psychologists call “tunnel vision.” that detective massanova and prosecutor rodriguez testified to ignoring lopez’s key leads in 1991 proves their laziness, indifference, and narrow-mindedness to investigate. it also suggests that had i been white and wealthy, authorities may not have closed my case in less than forty-eight hours. such rushed judgment occurred before at the same sixth precinct that arrested me with murder charges against a homeless black man, william emerson, accused of killing a white, wealthy advertising executive named john reisenbach until charges were dropped because he was proven innocent.20 years later, the duke lacrosse rape case involving three white athletes falsely accused of raping a black female poses a legal contradiction. because these white athletes came from wealthy families, the corrupt prosecutor lost his job in unprecedented fashion.21 this would not have likely happened if the three falsely accused male athletes had been black and their female accuser white, considering the 1939 scottsboro case where a white woman lied about getting raped by nine black youths, incarcerating all of them.22 while this proves that families of color, like my family and raymond blount’s, deserved better, the effects of racism and rushed judgment invariably sent me to prison as well where i realized that certain ethnic groups were disproportionately represented and profited from. profits from rushed judgment and racism in my over eighteen years of struggling for justice in seven different maximum security prisons, including battling thoughts of suicide, i was only one of the mostly black and latino men suffering from unjust convictions and mass incarceration. in fact, blacks and latinos comprised 85% of all 73,960 new york state prison inmates in 1999.23 by analogy, such mass incarceration in new york flooded prisons like a bottomless bathtub that absorbed more than it drained from what critics called “draconian” rockefeller drug laws from the late 1970s and “get tough on crime” politics against crack cocaine in the late 1980s. such laws kept this bottomless bathtub clogged, as it were, via mass incarceration of mostly inner city men and women from new york with mandatory life prison sentences for possession of small quantities of drugs until recently revised disparate sentencing laws on both state and federal levels began reducing prison populations. however, the disparity of people of color getting locked up in greater                                                                                                                 20 ronald sullivan, murder case in the village is crumbling, n.y. times (march 22, 1991), http://query.nytimes.com/gst/fullpage.html?res=9d0ce2d6123ff931a15750c0a967958260. 21 anne blythe, us appeals court dismisses bulk of duke lacrosse case, the news & observer (dec. 17, 2012), http://www.newsobserver.com/2012/12/17/2551360/us-appeals-court-dismisses-bulk.html. 22 james r. acker, scottsboro and its legacy: the cases that challenged american legal and social justice 2–5 (2007). 23 george coppolo, new york state prison population figures, olr research rep. (jan. 21, 2003), http://www.cga.ct.gov/2003/rpt/2003-r-0094.htm. 212 stolen happiness vol. 3:2       numbers with longer sentences than whites continues, as evidenced by federal prison sentences of black men who receive nearly 20% longer sentences than those of white men for similar crimes, according to an analysis by the u.s. sentencing commission, and it's hard to overlook racism and rushed judgment as motivating factors.24 collect calls: ka-ching, ka-ching in this connection, profit seeking institutions and corporations cater to industry stakeholders— those who own stocks and reap profits and dividends, etc., who benefit from unjust convictions and mass incarceration of mostly blacks and latinos, myself included. consider: at one point, every thirty minute collect prison call cost my family $10.00, plus tax, as part of $365 million per year in gross annual revenue for phone companies nationwide. forty-two percent of that total, or $152 million is kicked back in commission to correctional facilities overall.25 mci, for example, was a phone company whose profit rights and monopoly the new york state department of corrections (docs) shared from 1996–2007 with over $20 million in kickbacks to docs in 2000 alone.26 now, do the math in my case for about eighteen years and you'll see that crime does pay for those benefiting from mass incarceration. old mcdonald had a farm another profit aspect is that economically deprived rural economies are revitalized with prisons built or maintained in their upstate new york communities. prisons replacing unemployment and lagging farm industries offer job security with correctional jobs, construction work, and area retailers who benefit from employees and visitors to about seventy new york state prisons. moreover, despite reduced prison populations due to budget cutbacks and reduced crime, upstate prison economies still benefit from existing cheap inmate labor via a new york state docs industry called corcraft. corcraft pays inmates sixteen to sixty-five cents an hour to manufacture cleaning products, clothing, and furniture resold at significant markup in a $55 million industry with no pricing “oversight,” except by docs itself as a “preferred source” vendor to state agencies and public entities.27 small wonder, then, that prisonrelated businesses such as the correctional corporations of america (cca) are listed on the new york stock exchange. it profits from about sixty privatized prisons and detention centers,28 with a clause for cheap labor grounded in the 13th amendment of the u.s. constitution that shamefully supports prison expansion.29 next, consider “prison-based gerrymandering,” another profit-from-prison motive. until recently prohibited by court order, this long-held practice benefited upstate republican politicians who jostled rural votes from mostly white residents to expand their district infrastructures. by total census                                                                                                                 24 marc hansen, black prisoners are given longer sentences than whites, study says, aba journal (feb. 15, 2013), http://www.abajournal.com/news/article/black_prisoners_tend_to_serve_longer_sentences_than_whites. 25 john e. dannenberg, nationwide pln survey examines prison phone contracts, kickbacks, 22 prison legal news 1, 4–5 (2011), available at https://www.prisonlegalnews.org/includes/_public/_issues/pln_2011/04pln11.pdf. 26 id. (“by 2000, the commission rates for prison phone contracts had soared to new heights, with california at 44%, georgia 46%, south carolina 48%, illinois, ohio and pennsylvania at 50%, indiana 53%, florida 57%, and a national high in new york at 60% (reduced in 2001 to 57.5%). ten states were raking in $10 million or more per year from prisoner calls, with california, new york and the federal bureau of prisons leading the way with over $20 million each in annual kickbacks. such patterns were broadly if unevenly replicated at the local level, with city and county jails entering into similar commission-based phone contracts.”). 27 dave mckinley, new york spending policies, wgrz.com (may 13, 2010), http://www.wgrz.com/news/local/story.aspx?storyid=76845. 28 kopin tan, private prison companies have a lock on the business, wall st. j. (oct. 25, 2009), http://online.wsj.com/article/sb125641692049506073.html. 29 u.s. const. amend. xiii, § 1. 2013 columbia journal of race and law   213       count, these rural, upstate communities received extra government money because new york prison inmates were counted as residents of these rural populations from a misrepresented census.30 thus connected to dollars and no fair sense, one could say, these upstate new york communities and profitseekers that benefited from mass incarceration ate steak, unlike mostly inner new york city communities like the bronx, manhattan, brooklyn, queens, and staten island who ate crumbs. accordingly, it's time to switch dinner plates and redistribute the many millions involved back to inner city communities to improve their social and educational infrastructures as a cheaper, more effective means against incarceration, judging by the fact that it costs about $20,000-$60,000 per year to incarcerate a person31 versus an average $3,000 per year to educate individuals in community colleges.32 fair benefits now and beyond the benefits of shifting many millions from unfair criminal justice practices would reduce social problems like functional illiteracy, single-headed households, poverty, and drug and alcohol abuse that increases incarceration risk via racism and rushed judgment and profit-seekers benefiting from mass incarceration and unjust convictions like mine. these arrest and prison vulnerabilities weaken more than family unity; they remove voting rights to address community needs that arise. inner city vulnerabilities also increase unemployment and the risk of re-arrest, including for wrongful convictions, especially because the 700,000 or so american inmates released every year have greater stigma against them by virtue of their past.33 as such, fairness means we should ask, “where do we go from here?” in the face of failed mass incarceration and prison release programs. one answer is that all americans should voice concern when the human rights and public safety issues discussed in this essay occur. history unfortunately does repeat itself. what can the legal community do? lawyers, police, correctional officers, professors, judges, and law students can promote honest justice for all human beings through training that emphasizes principles over paychecks and to avoid seeing people as commodities, or means to ends, such as police making arrests to simply meet quotas. the legal community should also engage in honest, public discourse by inviting victims of police brutality, racial profiling, discrimination, and unjust convictions to better evaluate their impact in contributing to mass incarceration beyond learning from case studies. such public education is important because these social problems hurt human lives while eroding public trust and confidence in considering, for example, what happened in my home state. on or about january 26, 2012, the fbi arrested four east haven, connecticut police officers on charges of racial profiling under media headlines, “bullies with badges.” the arrests, stemming from civil rights abuse against latino males in east haven, added insult to injury when east haven’s mayor, joe maturo, said, “i might have tacos,” in response to the problem. community outrage resulted in the mayor receiving offers of at least 500 tacos so that he could apparently eat his words, which he publicly                                                                                                                 30 dan rosenblum, hakeem jeffries gives the prison-gerrymander presentation at his old law school, capital new york, (jan. 24, 2012), http://www.capitalnewyork.com/article/politics/2012/01/5116858/hakeem-jeffries-gives-prisongerrymander-presentation-his-old-law-s. 31 the cost of a nation of incarceration, cbs news (apr. 22, 2012), http://www.cbsnews.com/8301-3445_16257418495/the-cost-of-a-nation-of-incarceration. 32 aaron, what are the average community college costs per year?, christian personal finance (nov. 26, 2012), http://christianpf.com/what-are-the-average-community-college-costs-per-year. 33 eve tahmincioglu, unable to get jobs, freed inmates return to jail, nbc news (feb. 17, 2010 9:02 a.m.), http://www.nbcnews.com/id/35263313/ns/business-careers/t/unable-get-jobs-freed-inmates-return-jail. 214 stolen happiness vol. 3:2       apologized for in a feeble damage control attempt.34 connecticut’s governor dan malloy called the comments “repugnant,” causing east haven’s police commissioner, leonard gallo, to retire under fire.35 in light of this recent racial profiling incident, my efforts have only begun, for after winning my freedom i find no better way to treasure it in both word and deed than working toward racial equality and justice for everyone. one final, glaring example of continued injustice is key. to date, the law enforcement has not sought to apprehend the actual perpetrator in my unjust conviction case, despite proof of my actual innocence, and justice cataldo’s ruling that police and prosecutor know the real perpetrator's identity. this neglect for all victims of this case wastes taxpayer dollars and endangers society each time the innocent land in prison because real criminals remain free to commit more crimes. such neglect suggests that when crimes involve people of color, either the wrong person may be arrested or the truth may not matter at all. the scourge of over 305 dna-based exonerations in america, with many non-dna exonerations like mine, proves our imperfect system, made worse, needless to say, when true perpetrators go unpunished and corrupt prosecutors avoid accountability amid millions of dollars that states pay as attempts to compensate innocent men and women released from prison. to date, this pains me because while other new york state entities are being held accountable for my ordeal as an innocent man, prosecutor james rodriguez enjoys civil immunity for it as do most corrupt prosecutors in america.36 is this why america’s eloquent, yet contradictory founding father, thomas jefferson, wrote that the true price of freedom is eternal vigilance?37 i think so, which is why i often say that justice is possible for those who hope and for those who fight. it is also why amid my stolen happiness i seek to return a higher good than myself to society since what i lost is gone forever.                                                                                                                 34 peter applebome, after charges of latino abuse, anger shifts to a mayor for his ‘taco’ remark, n.y. times, jan. 25, 2012, at a23, available at http://www.nytimes.com/2012/01/26/nyregion/on-latino-abuse-mayor-says-i-might-havetacos.html. 35 diane orson, embattled east haven, conn., police chief to retire, npr (jan. 30, 2012 3:00 p.m.), http://www.npr.org/2012/01/30/146099695/embattled-conn-police-chief-to-retire. 36 in fact, he should have been fired like the duke lacrosse prosecutor, if not arrested like the prosecutorturned-judge charged with hiding evidence in michael morton’s case. morton was exonerated after 25 years in prison. see texas: ex-prosecutor charged with hiding evidence, n. y. times, apr. 19, 2013, at a13, available at http://www.nytimes.com/2013/04/20/us/texas-ex-prosecutor-charged-with-hiding-evidence.html 37 larry walker, informed vigilance, the price of true freedom, united church of god, (sept. 30, 2007),   http://www.ucg.org/commentary/informed-vigilance-price-true-freedom. “the price of freedom is eternal vigilance.” former u.s. president thomas jefferson's advice certainly rings true today, especially with the ever-present danger of innocent citizens landing in prison for crimes they did not commit. microsoft word smith final.docx 2016 columbia journal of race and law 193 a seat at the table: changing the governing structure of low income housing tax credit program administration to reflect civil rights values and fair housing raquel smith* the low income housing tax credit (“lihtc”) program is the largest existing program for the development of low-income affordable rental housing in the country. the program is administered by the united states department of treasury and the office of comptroller of the currency (“occ”), federal agencies by statute that have regulatory and supervisory authority over financial institutions. however, while 42 u.s.c. § 3608(d) provides that federal agencies that have regulatory authority over financial institutions need to administer their programs in a manner that affirmatively furthers fair housing, part of treasury’s policies under the lihtc statute gives preference for affordable housing projects being developed in areas that are already predominantly minority and contain concentrated poverty. neither the treasury nor the occ have any regulations, guidance, reports, or audits that further fair housing by enforcing federal nondiscrimination policies or their legal duty to overcome patterns of racial segregation in housing. this note argues that treasury and occ should take a larger role in affirmatively furthering fair housing under the fair housing act by reforming their governing structure and polices to reflect civil rights values. specifically, the treasury should explicitly acknowledge the authority title vi and the fair housing act in their policies and regulations, establish a centralized, federal governing body to assure state housing finance agencies are in compliance with civil rights laws, and require state housing finance agencies (“hfa”) to establish governing bodies that are inclusive of the communities they serve. i. introduction ............................................................................................. 194 ii. concentrated poverty, affirmatively furthering fair housing, and the low income housing tax program ....................................... 195 a. the problem with concentrated poverty and benefits of mixedincome housing ............................................................................... 195 b. background law ............................................................................... 196 c. the low income housing tax credit program .............................. 199 iii. the lithc program’s effect on concentrated poverty and recent litigation .................................................................................... 202 a. the approval process encourages concentrated poverty and housing segregation ........................................................................ 202 b. the approval process does not affirmatively further fair housing ............................................................................................ 203 194 a seat at the table vol. 6:2 c. reform efforts: retracing recent litigation ................................... 204 1. new jersey ................................................................................ 204 2. connecticut ................................................................................ 205 3. texas ...................................................................................... 206 iv. reforming the lihtc program through reforming its governing structure .............................................................................. 207 a. approaches to implementing reform .............................................. 207 b. recommendations ............................................................................ 208 1. the treasury should explicitly incorporate title vi and title viii values ..................................................................................... 208 2. establish a governing body to ensure state housing finance agencies are in compliance with civil rights laws ..................................... 209 3. require state hfas to establish governing bodies that are representative of the communities they serve ................................. 209 v. conclusion ................................................................................................. 210 i. introduction the low income housing tax credit (“lihtc”) program is administered by the united states department of treasury and the office of comptroller of the currency (“occ”); these federal agencies have regulatory and supervisory authority by statute over financial institutions. however, while 42 u.s.c. § 3608(d) provides that federal agencies with regulatory authority over financial institutions need to administer their programs in a manner that affirmatively furthers fair housing, part of the treasury’s policies under the lihtc statute gives preference for affordable housing projects developed in areas that are predominantly minority and contain concentrated poverty.1 there is evidence suggesting the treasury and occ’s policies subject families to racial segregation and increasingly distressed neighborhood conditions.2 further, these practices lead to discrimination against persons because of their race and color, and therefore violate 42 u.s.c. § 3604(a). neither the treasury nor occ have any regulations, guidance, reports, or audits that further fair housing by enforcing federal nondiscrimination policies or their legal duty to overcome patterns of racial * j.d. 2016, columbia law school; b.s. 2013, cornell university. the author would like to express her immense gratitude to professor olatunde johnson for her guidance and to the staff of the columbia journal of race and law for their invaluable editing contributions. 1 see i.r.c. § 42(d)(5)(b)(ii)(i) (west 2016) (qualifying areas with a poverty rate of twenty-five percent or higher or where at least half of the households have an income below sixty percent of the area median gross income). 2 these regulations require that state lihtc administrators give preference to developers who plan to site their low-income housing in communities that are already concentrated with poor residents and little economic and educational opportunities. while the fair housing act aims to deconcentrate poverty and promote racial integration, lihtc polices prefer development in high-poverty areas. see lance freeman, siting affordable housing: location and neighborhood trends of low income housing tax credit developments in the 1990s, brookings inst. 10 (2004), http://www.brookings.edu/~/media/files/rc/reports/2004/04metropolitanpolicy_freeman/20040405_freeman.pdf. 2016 columbia journal of race and law 195 segregation in housing. this note argues that the treasury and occ should take a larger role in affirmatively furthering fair housing under the fair housing act by reforming their governing structure and polices to reflect civil rights values. part ii of this note explains the problems attached to racial and economic segregation, describes the obligations mandated under title vi and title viii of the civil rights act of 1968, and elaborates on the duty to affirmatively further fair housing in the united states. part iii discusses the treasury’s role in fostering this segregation through their administration of the lihtc program and describes various proposals for reform to the statute. part iv of this note proposes specifically that the treasury: (1) explicitly acknowledge the authority title vi and the fair housing act in their policies and regulations; (2) establish a centralized, federal governing body to assure state housing finance agencies are in compliance with civil rights laws; and (3) require state housing finance agencies (hfa) to establish governing bodies that are inclusive of the communities they serve. ii. concentrated poverty, affirmatively furthering fair housing, and the low income housing tax program the duty to affirmatively further fair housing was first introduced when congress enacted the fair housing act in 1968.3 this duty requires the united states department of housing and urban development (hud), hud grantees, and entities involved in the administration of other federal housing and community development programs to take proactive steps to support residential integration and other important goals of the fha.4 however, since its inception, enforcement of the duty has been limited—with the impact of concentrated poverty and segregation continuing to be a pervasive problem for housing administration. the current lihtc administration subjects families to racial segregation and increasingly distressed neighborhood conditions instead of affirmatively furthering fair housing. a. the problem with concentrated poverty and benefits of mixed-income housing at the inception of government-funded affordable housing, proponents argued that targeting poor, minority neighborhoods for low income housing construction would have a revitalizing effect by increasing government participation, community investment, and improving physical appearance.5 however, recent studies have revealed that targeting low-income housing alone does not produce these same effects. for example, in 2003 hud commissioned a literature review to summarize conclusions about the effect of developing low-income units in poor, segregated neighborhoods and suggested that adding more units in these neighborhoods may further depress the value of the housing and contribute to additional long-term problems for families.6 this depression creates “distressed neighborhoods” that are characterized by extreme poverty, lack of employment, low educational opportunities, and high proportions of single-parent households. 7 furthermore, these areas of high distress are predominantly concentrated with minority populations. for example, a brookings institute study on the spread of concentrated poverty determined that minority populations “make up a disproportionate share of residents in higher-poverty suburban tracts and experienced 3 title viii of the civil rights act of 1968, pub. l. no. 90–284, 82 stat. 81 (codified at 42 u.s.c. §§ 3601– 3619). 4 42 u.s.c. § 3608(d)(e)(5) (1988). 5 see paul s. grogan & tony proscio, comeback cities: a blueprint for urban neighborhood revival 99-101 (2000); avis c. vidal, rebuilding communities: a national study of urban community development corporations 96–98 (1992). 6 see jill khadduri, kimberly burnett & david rodda, abt assoc., targeting housing production subsidies: literature review 68–73 (2003). see also jill khadduri, kimberly burnett & david rodda, abt assoc., making the best use of the low income housing tax credit 19–22 (2004). 7 william o’hare & mark mather, the growing number of kids in severely distressed neighborhoods: evidence from the 2000 census 3–6 (2003), http://www.prb.org/pdf/kidsdistressedneighborhoods.pdf. 196 a seat at the table vol. 6:2 concentrated disadvantage at higher rates than white residents.” 8 twenty-three percent of poor white residents lived in higher-poverty suburban tracts in 2008-2012 compared to fifty-three percent of poor blacks and fifty-four percent of poor latinos.9 patterns of discrimination and segregation that restrict poor minorities to these distressed neighborhoods have direct effects on their quality of life and potential life outcomes. diane l. houk clearly stated in an article for the fair housing justice center, “[r]esidential racial isolation fuels a vicious, selfsustaining cycle of inequality and contributes to the racialization of poverty.”10 for example, because of their concentration in distressed, racially segregated cities and inner suburbs, many poor black and latino residents attend overwhelmingly low-income schools. 11 growing up in predominately poor neighborhoods and attending very low-income schools can create many barriers to academic achievement and occupational success. neighborhoods with concentrated poverty also tend to have very high crime rates that put families in more dangerous and stressful environments.12 this segregation and isolation can lead to great health disparities largely from inadequate health care facilities, poor quality, expensive food, stress, and the concentration of environmental dangers.13 conversely, recent studies have shown the increasing benefits of integration programs and mixed income housing. in the heavily studied gautreaux program, researchers found that “women with low incomes who moved to the largely white, opportunity rich suburbs experienced improved employment and earnings.”14 the gautreaux children also performed significantly better in school after moving to more affluent areas.15 this study also showed that the families residing in “revitalizing areas” had less substantial gains as the families who moved to the suburbs.16 in a recent study, the fair housing justice center surveyed some of the more successful mixed income-housing units that were developed in areas with a low concentration of poverty.17 the report stressed the importance of housing choice for low-income minorities. while they showed that preserving and developing new low income housing has its benefits, they showed that giving low-income, minority populations the choice to move to areas of less concentrated poverty will encourage diverse populations to interact, reduce stereotypes and biases, and have access to a wider range of employment and educational opportunities.18 b. background law 8 elizabeth kneebone, the growth and spread of concentrated poverty, 2000 to 2008-2012, brookings inst. (2014), http://www.brookings.edu/research/interactives/2014/concentrated-poverty#/m10420. 9 id. 10 diane l. houk, erica blake & fred freiberg, fair housing justice center, increasing access to low-poverty areas by creating mixed-income housing 4–5 (2007). 11 further, approximately twenty-five percent of poor black and latino residents live in neighborhoods of high poverty. see paul a. jargowsky, poverty and place: ghettos, barrios, and the american city 135–36 (1997). 12 catherine cubbin, where we live matters for our health: neighborhoods and health 5 (2008). 13 see, e.g., robert bullard, building safe, just, and healthy communities, 12 tul. envtl. l. j. 373, 380–85 (1999). 14 myron orfield, racial integration and community revitalization: applying the fair housing act to the low income housing tax credit, 58 vand. l. rev. 1747, 1762 (2005). see also james e. rosenbaum & susan j. popkin, employment and earnings of low-income blacks who move to middle-class suburbs, in the urban underclass 342, 343–348 (1991). 15 john goering, political origins and opposition, in choosing a better life?: evaluating the moving to opportunity social experiment 37, 40 (john goering & judith d. feins eds., 2000). 16 orfield, supra note 14, at 1762–63. 17 houk, blake & freiberg, supra note 10, at 4–5. 18 id. 2016 columbia journal of race and law 197 the fair housing act of 1968 (fha), also known as title viii of the civil rights act of 1968, was an attempt to find a comprehensive solution to the problem of unlawful discrimination in housing based on race, color, sex, national origin, or religion.19 it provides a statutory framework for regulating the practices of all federal government entities in the united states involved in housing and encourages the investigation of discriminatory housing practices.20 the fha is one of the most comprehensive pieces of civil rights law. it not only covers discrimination in the sale, rental and financing of housing based on race, religion, and national origin, but also covers discrimination in other housing-related activities such as advertising, zoning practices, and new construction design. the fha mandates that hud and other federal agencies administer their programs in a manner that affirmatively furthers fair housing.21 the fha has been amended on several occasions to address housing discrimination based on sex (1974), and against people with disabilities and families with children (1988).22 the vague terminology of the fha mandates that the federal government “affirmatively […] further” fair housing, but did not clarify exactly what that means or how it can be done.23 these unguided practices have led to confusion, litigation, and calls for reform by civil rights advocates who struggled with finding ways to apply the “affirmatively further” fair housing doctrine to real life scenarios. while the parameters of and expectations attached to the law are still contested today, perhaps the most guidance has come from courts that scrutinize the practices on a case-by-case basis. for example, in 1987 then-judge stephen breyer wrote that the act created “an obligation to do more than simply refrain from discriminating.”24 the decision in naacp, boston chapter v. secretary of housing and urban development expressed that § 3608 required the agency to take affirmative action both to stop discrimination and to desegregate housing.25 here, the first circuit found “an intent that hud do more than simply not discriminate itself; it reflects the desire to have hud use its grant programs to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases” under title viii.26 one major concept that has emerged out of the judicial and legislative debate surrounding the duty to affirmatively further fair housing is the idea that such approval processes should promote racial and social integration. courts have interpreted this duty to require that the federal government support racial integration and therefore would prohibit the federal government and its grantees from developing low-income housing in high-minority, low-income concentrated areas.27 the fha contains two overarching goals. first, the act seeks to end housing discrimination and promote diverse, inclusive communities.28 for example, the act explicitly lists a set of nonexclusive prohibited practices including discriminatory sales, rentals, and advertising based on a person’s race, color, national origin, handicap, religion, sex, or familial status.29 second, the act seeks to address a legacy of racial segregation and 19 title viii of the civil rights act of 1968, pub. l. no. 90-284, 82 stat. 81 (codified at 42 u.s.c. §§ 3601– 3619). 20 the fair housing act, department of justice (nov. 23, 2015), http://www.justice.gov/crt/about/hce/housing_coverage.php. 21 42 u.s.c. §§ 3601–3631 (1968). 22 id. 23 id. § 3608. 24 naacp v. sec’y of hous. & urban dev., 817 f.2d 149, 154 (1st cir. 1987). 25 id. at 151. 26 id. at 155. 27 see, e.g., shannon v. united states dep’t. of hous. & urban dev., 436 f.2d 809 (3d cir. 1970); sec’y of hous. & urban dev., 817 f.2d at 149 (stating that title viii imposes a duty on hud beyond simply refraining from discrimination); and gautreaux v. chicago hous. auth., 503 f.2d 930, 931–34 (7th cir. 1974). 28 42 u.s.c. § 3604 (2016). see also 114 cong. rec. 9563 (1968) (statement of rep. celler); 114 cong. rec. 3422 (1968) (statement of sen. mondale). 29 42 u.s.c. § 3604 (2016). 198 a seat at the table vol. 6:2 housing inequality in the united states by requiring agencies to administer their programs in a way that affirmatively furthers fair housing. 42 u.s.c. § 3608(d) specifically provides that, all executive departments and agencies shall administer their programs and activities relating to housing and urban development (including any federal agency having regulatory or supervisory authority over financial institutions) in a manner affirmatively to further the purposes of this subchapter and shall cooperate with the secretary to further such purposes.30 to receive hud grants, grantees must agree to affirmatively further fair housing under 42 u.s.c. § 3805(d)(5), if hud knows that a grantee has violated the requirement it is required to seek compliance or withdraw funds to compel it.31 states must also certify that local governments receiving funds through larger, federally funded programs (community development block grant program, comprehensive housing affordability strategy, public housing authority plan, etc.) are affirmatively furthering fair housing.32 the obligation to affirmatively further fair housing applies to all housing and housing-related activities in a jurisdiction, whether publicly or privately funded.33 additionally, title vi of the civil rights act of 1964 forbids discrimination based on race, or color, either by intent or as a result of a potentially neutral policy or practice.34 hud released title vi regulations that include the mandate to administer programs in a way that affirmatively seeks to overcome discrimination.35 recent housing policies put forth by hud have placed increasing importance on deconcentrating poverty through the development of lihtc properties.36 lastly, in executive order 12892, the executive branch required that the department and state hfas closely monitor “all federal programs and activities relating to housing and urban development throughout the united states,” which would include tax credit properties, for discriminatory practices.37 it also requires them to affirmatively promote non-discrimination and racial integration in various ways, including analyzing the racial concentration effects of lihtc project locations and adopting procedures that work to combat racial segregation.38 30 id. § 3608(d). 31 the housing and community development act of 1974 made this requirement explicit: “[t]he grantee will affirmatively further fair housing.” 42 u.s.c. § 5304(b)(2) (2006). see also anderson v. city of alpharetta, ga., 737 f.2d 1530, 1537 (11th cir. 1984) (describing hud’s obligation not just to refrain from discriminatory acts itself, but also to act “when hud is aware of a grantee’s discriminatory practices and has made no effort to force it into compliance with the fair housing act by cutting off existing federal financial assistance to the agency in question”). 32 u.s. department of housing and urban development office of fair housing and equal opportunity, fair housing planning guide (1996), http://www.hud.gov/offices/fheo/images/fhpg.pdf. 33 id. 34 42 u.s.c. § 2000d (2016). 35 letter from mass. law reform inst. to internal revenue serv. (mar. 30, 2004), http://www.prrac.org/pdf/irsletter.pdf. 36 casey j. dawkins, u.s. dep’t of hous. & urban dev., exploring the spatial distribution of low income housing tax credit properties 1 (2011), https://www.huduser.gov/portal//publications/pdf/dawkins_exploringliht_assistedhousingrcr04.pdf; see also rule to deconcentrate poverty and promote integration in public housing, 65 fed. reg. 81,214 (dec. 22, 2000) (to be codified at 24 c.f.r. pt. 903). 37 exec. order no. 12892, 59 fed. reg. 2939 (1994). 38 poverty & race research action council, civil rights mandates in the low income housing tax credit (lihtc) program (2004), http://www.prrac.org/pdf/crmandates.pdf (last visited jan. 21, 2015). see also shannon v. dep’t of hous. & urban dev., 436 f.2d 809 (3d cir. 1970). 2016 columbia journal of race and law 199 c. the low income housing tax credit program at the time the fha was passed, almost all federal housing subsidies for affordable housing construction were distributed by hud or the department of agriculture.39 in the early 1970s, president richard nixon issued a moratorium on nearly all large scale, federally subsidized public housing projects and public housing construction declined dramatically over the next few years.40 until the mid 1980s, the primary low-income housing programs were subsidy-based and included public housing and section 8.41 in 1986, congress began to replace direct subsidies almost entirely with housing developed through the low income housing tax credit program.42 however, unlike other forms of federal affordable housing programs such as voucher programs, public housing, and section 8, rent for lihtc apartments do not adjust alongside a resident’s actual income.43 instead, the program only ensures that the rent will be held down to a level considered affordable by local standards rather than ensuring that an individual tenant household will not have to pay more than thirty percent of its income for rent.44 the lihtc is currently the largest program that provides for the development of low-income rental housing in the united states.45 since its inception, the lihtc program has been responsible for providing about five billion dollars annually in tax credits and creating and preserving about 2.4 million units of affordable rental housing nationally for low-income households.46 some stipulate that the lihtc program finances about ninety percent of all affordable rental housing produced annually.47 the lihtc program was introduced under the tax reform act of 1986 and is implemented mainly through state agencies that distribute the credit to developers on a competitive basis. the program encourages investors to support the development of affordable rental housing by providing them with tax credits that can be used for the restoration, new construction, or acquisition of buildings.48 the tax credit program allows owners of residential rental property to claim tax credits for thirty 39 u.s. gov’t accountability office, elderly housing: federal housing programs that offer assistance for the elderly 1–2 (2005), http://www.gao.gov/assets/250/245318.pdf. 40 barry g. jacobs, guide to federal housing programs 21 (2d ed. 1986). 41 nat’l low income hous. coal., 2004 advocates’ guide to housing & community development policy 96 (2004), http://nlihc.org/sites/default/files/2012-advocates-guide_0.pdf. 42 see tax reform act of 1986, pub. l. no. 99-514, 100 stat. 2085, 2189–2208 (codified as amended in scattered sections of 26 u.s.c.). 43 for comparisons to other federal affordable housing programs see u.s. dep’t of hous. & urban dev., how your rent is determined: fact sheet for project-based section 8 (2010), http://www.hud.gov/offices/fheo/promotingfh/11-fact-sheet-s-8-english.pdf; u.s. dep’t of hous. & urban dev., how your rent is determined: fact sheet for public housing and housing choice voucher programs (2002), http://portal.hud.gov/hudportal/hud?src=/program_offices/public_indian_housing/programs/ph/rhiip/factsheet. 44 see fy 2011 income limits: frequently asked questions, u.s. dep’t of hous. & urban dev., http://www.huduser.org/portal/datasets/il/il11/faq_11.html#q11 (last visited mar. 29, 2016). 45 u.s. dep’t of hous. & urban dev., what happens to low-income housing tax credit properties at year 15 and beyond? (2012). roughly 2.2 million lihtc-financed properties were placed in service from 1987 through 2009, the last year for which they had data. the authors estimate the total in 2011 was 2.4 million. the lihtc program has outstripped both public housing and hud-assisted, privately owned housing. 46 hud estimates the total in 2011 was 2.4 million. see id. see also low-income housing tax credits, huduser.org, http://www.huduser.org/datasets/lihtc.html (last visited mar. 29, 2016). 47 see simon kawitzky, fred freiberg, diane l. houk & salimah hankins, fair housing justice center, choice constrained, segregation maintained: using federal tax credits to provide affordable housing (2013). 48 off. of the comptroller of the currency, low-income housing tax credits: affordable housing investment opportunities for banks (2014). 200 a seat at the table vol. 6:2 percent to seventy percent of the present value of new and rehabilitated housing developments.49 for a period of fifteen years, a property owner must rent at least twenty percent of the project’s units to households with incomes at or below fifty percent of the area median gross income or rent at least forty percent of the units to households with incomes at or below sixty percent of the area median gross income in order to qualify for the program.50 under the lihtc statute, the internal revenue service (“irs”) reserves the right to reclaim previous declared credits during the fifteen-year period if the project fails to fulfill its obligations under the regulations.51 property owners can claim these taxes annually over a ten-year period and use the tax credits in a variety of ways including offsetting taxes on other income or selling them to investors to raise capital for the development costs of a project.52 this federal tax credit program uniquely requires that developers not simply claim the credits on their income tax return, but rather that the credits be allocated through state hfas.53 hfas calculate the tax credit based on a percentage of costs acquired during the process of developing the affordable housing property.54 interestingly, developers are largely restricted in their choice for affordable housing project location by the amount of money the developer can get upfront for selling the rights to a tax credit.55 the united states department of treasury, through the irs, administers and regulates the operation and disbursement of the lihtcs through state and local housing credit agencies.56 they allocate these federal tax credits to state housing credit agencies (“hca”) based on each state’s population.57 in order to receive the funds, each state’s allocation agency must develop a qualified allocation plan (“qap”) “that relates the use of the tax credits to the housing needs and priorities and controls for competition.”58 the federal government created a qualified census tract bonus, hoping to promote the construction and restoration of developments in lower-income communities.59 projects in “qualified census tracts” are located in areas where “[fifty] percent or more of the households have an income which is less than [sixty] percent of the area median gross income.”60 section 42 (m)(1)(b)(ii) of the federal tax code requires that a qap give preference in allocating housing credit dollar amounts among selected projects to: (i) projects serving the lowest income tenants; (ii) projects obligated to serve qualified tenants for the longest periods; and 49 orfield, supra note 14, at 1777. 50 id. 51 off. of the comptroller of the currency, supra note 48. 52 kawitzky, freiberg, houk & hankins, supra note 38, at 8. 53 james a. long, the low-income housing tax credit in new jersey: new opportunities to deconcentrate poverty through the duty to affirmatively further fair housing, 66 n.y.u. ann. surv. am. l. 75, 81–82 (2010). 54 low income housing tax credit, u.s. dep’t of hous. and urban dev., http://portal.hud.gov/hudportal/hud?src=/program_offices/fair_housing_equal_opp/lihtcmou (last visited june 5, 2016). 55 long, supra note 53, at 82. 56 26 u.s.c. § 42 (2013); 26 c.f.r. § 1.42-0–1.42-18 (1990). 57 off. of the comptroller of the currency, low-income housing tax credits: affordable housing investment opportunities for banks 1, 3, march 2014, http://www.occ.gov/topics/communityaffairs/publications/insights/insights-low-income-housing-tax-credits.pdf [hereinafter occ]. 58 1986: low-income housing tax credit (lihtc), the fair hous. ctr. of greater bos., http://www.bostonfairhousing.org/timeline/1986-low-income-housing-tax-credit.html (last visited jan. 21, 2015). 59 u.s. dep’t. of hous. and urban dev., what happens to low-income housing tax credit properties at year 15 and beyond? (2012), https://www.huduser.gov/portal/publications/hsgfin/lihtc_report2012.html. 60 26 u.s.c. § 42(d)(5)(b)(ii)(i). 2016 columbia journal of race and law 201 (iii) projects which are located in qualified census tracts and the development of which contributes to a concerted community revitalization plan.61 the project is then eligible for a tax credit calculation that uses an increased property eligibility of 130% of its original eligible basis.62 as a helpful tool, states can use data from the distress indicator index created by the treasury for the community development financial institutions fund program, which ranks every census tract across the country from zero to four, with four indicating the highest level of distress based on a combination of poverty, median family income, and unemployment levels.63 in addition, the occ, an independent bureau of treasury, administers national banks’ investments in lihtc projects.64 the occ plays a critical role in the development of affordable housing because they must approve all federally regulated national bank investments in lihtc real estate developments by finding that the investment is designed primarily to promote the public welfare.65 the “occ estimates that eighty-five percent of the $9.5 billion in equity from corporate investors used to finance lihtc projects in 2012 came from the banking sector.”66 the national banks benefit from the use of the tax credits by using it to offset profits or through receiving cash proceeds from the sale of the project.67 in 1992, public welfare provisions allowing national banks to own lihtc projects became law and they are still in effect today.68 it included a public welfare-based requirement that the profits and other distribution or interest from equity or debt investments received by the bank from the public welfare investment be devoted to activities that primarily promote the public welfare as determined by the occ.69 profits, dividends, and tax credits are restricted for qualifying public purposes rather than general bank use.70 however, instead of providing more restrictions in an attempt to affirmatively further fair housing, the occ has relaxed many of their constraints. between the years 1995 and 2003, the occ removed all non-financial regulatory requirements for public welfare eligibility. in 1995, they removed the reinvestment provision, which was the “provision that require[d] a bank to reinvest profits, dividends, and other distributions from community development investments in activities that promote the public welfare.”71 in 1999, the occ eliminated the community benefit and support elements of the regulation by allowing states to decide their importance on a discretionary basis.72 this rule, inter alia, permitted eligible national banks to self-certify any public welfare investment, expanded the types of investments that a national bank may self-certify by removing geographic restrictions, revised and expanded the illustrative list of eligible public welfare investments and removed the private market financing requirement for public welfare investments.73 61 id. at § 42(d)(5)(ii)(i). 62 id. at § 42(d)(5)(b)(i). 63treasury and occ sued, administration of lihtc fails fair housing act, nat’l low income hous. coalition (sept. 2, 2014), http://nlihc.org/article/treasury-and-occ-sued-administration-lihtc-fails-fair-housing-act. 64 occ, supra note 57. 65 12 u.s.c. § 24 (eleventh) (2008); 12 c.f.r. § 24.3 (2008). 66 treasury and occ sued, administration of lihtc fails fair housing act, supra note 63. 67 occ, supra note 57. the community reinvestment act allows federal regulatory agencies to examine whether banking institutions are complying with the regulations and “take this information into consideration when approving applications for new bank branches or for mergers or acquisitions.” section 804 of title viii of the act of 1977 (pub. l. no. 95-128; 91 stat. 1148). the office uses a variety of methods to encourage national banks to invest in lihtcs, for instance offering them advantageous regulatory consideration under the community reinvestment act. 68 barry wildes, a look inside…, community development investments 2 (2010), http://www.occ.gov/static/community-affairs/community-developmentsinvestments/fall10/cd_investments_pwi_fall_2010.pdf. 69 12 c.f.r. § 24.4(a)(4); 58 fr 68464 (1993). 70 brief of plaintiff at 11–12, inclusive communities project, inc. v. u.s. dep’t of treasury (no. 3:14-cv-3013d), 2015 wl 4629635 (n.d. tex. aug. 4, 2015). 71 12 c.f.r. § 24.4(a) (1995). 72 64 fr 70988 (1999). 73 id. 202 a seat at the table vol. 6:2 iii. the lithc program’s effect on concentrated poverty and recent litigation patterns of discrimination and segregation can lead to long-term debilitating effects on poor, minority populations especially when promoted by the federal government. the treasury and occ’s preference for investments in lihtc units in predominantly minority and distressed locations and the lack of guidelines that prohibit lihtcs from being used for units in racially segregated minority neighborhoods marked by conditions of distress subjects low-income, minority families to conditions of racial segregation and constitutes discrimination against persons because of race and color. a. the approval process encourages concentrated poverty and housing segregation the treasury and occ’s lihtc allocation practices of giving priority to development proposals for low-income housing in census tracts that are already occupied by a high percentage of poverty leads to the preservation of segregation and encourages discrimination against persons because of their race and color, in violation of the fha. the current regulations require that state lihtc administrators give preference to developers who plan to site their low-income housing in communities that are already destabilized by a concentration of poor residents and a lack of economic and educational opportunities. in fact, the lihtc policies that prefer development in minority, high-poverty areas seem to be in direct contrast with some of the overarching goals of the fha to affirmatively further fair housing by deconcentrating poverty and promoting racial integration.74 in particular, a study conducted by the fair housing justice center which focused on lihtc housing in new york city and its suburbs determined that seventy-one percent of the lihtc affordable housing units were located in areas of “high or extreme poverty.”75 in addition, seventy-seven percent of the lihtc affordable housing units were located in minority neighborhoods. 76 a brookings study found that the neighborhoods containing lihtc housing contained disproportionate shares of black residents.77 while blacks made up only fifteen percent of total metropolitan residents in 2000, they accounted for twenty-six percent of the lihtc neighborhoods population.78 blacks also made up thirty-four percent of the population in central-city lihtc neighborhoods, versus their fifteen percent proportion in suburban lihtc neighborhoods.79 furthermore, abt associates conducted another study in 2006 analyzing lihtc units with two or more bedrooms used between 1995 and 2003, located in metropolitan areas with populations greater 74 see larry buron, sandra nolden, kathleen heintzi & julie stewart, abt associates, inc., assessment of the economic and social characteristics of lihtc residents and neighborhoods (2000); william callison, achieving our country: geographic desegregation and the low-income housing tax credit, 19 s. cal. j. law & social justice 213 (spring 2010); orfield, supra note 42; florence roisman, mandates unsatisfied: the low income housing tax credit program and the civil rights laws, 52 miami l. rev. 1011 (1998); building opportunity: civil rights best practices in the low income housing tax credit program, prrac and lawyers committee for civil rights under law (2008), http://www.prrac.org/lihtc.php. 75 the data examined more than 52,000 low-income rental units produced under the lihtc program over the ten years between 1998 and 2007. simon kawitzky, fred freiberg, diane l. houk & salimah hankins, fair hous. justice ctr., choice constrained, segregation maintained: using federal tax credits to provide affordable housing 19 (2013). 76 id. at 24. 77 lance freeman, brookings inst., siting affordable housing: location and neighborhood trends of low income housing tax credit developments in the 1990s 10 (2004), http://www.brookings.edu/~/media/files/rc/reports/2004/04metropolitanpolicy_freeman/20040405_freeman.pdf. 78 id. 79 id. 2016 columbia journal of race and law 203 than 250,000. 80 they reported that thirty-four percent of all metropolitan family lihtc units were in neighborhoods with low poverty rates, with twenty-nine percent being in neighborhoods with ten to twenty percent poverty rates and thirty-seven percent were in neighborhoods with greater than twenty percent poverty rates.81 while some states have made progress in recent years, several states “place only a small fraction of the lihtc family housing in census tracts in which fewer than ten percent of all people are poor,” including arizona, connecticut, the district of columbia, idaho, illinois, kentucky, massachusetts, pennsylvania, and south carolina. 82 by denying low-income, minority families more opportunities to leave inner-city communities in favor of better schools and safer neighborhoods, states are overlooking an opportunity to break the cycle of intergenerational poverty and patterns of racial segregation in housing. b. the approval process does not affirmatively further fair housing the lihtc statute fails to affirmatively further fair housing as required by law. according to hud, federal agencies must ensure that entities under their supervision, including non-federal bodies, do not engage in acts and omissions that result in or have the effect of discrimination or segregation.83 while it is clear that the fha and duty to affirmatively further fair housing is binding on the department of treasury and occ,84 this responsibility is not directly reflected in the lihtc statute. the treasury and occ currently do not have any regulations, guidance, reports, or audits to further fair housing by enforcing federal nondiscrimination policies and their legal duty to overcome patterns of racial segregation in housing. while title vi explicitly mandates that all federal agencies adopt regulations prohibiting discrimination and segregation based on race and disability in programs distributing federal financial assistance, the department of treasury does not have any stated policy or guideline referencing these basic nondiscrimination rules required of all federal agencies.85 there are no specific site selection or affirmative marketing requirements in the department of treasury’s lihtc regulations.86 decisions about which projects to fund are entirely delegated to state housing finance agencies.87 in fact, the department of treasury uses a competitive process that awards special preference for those that are developing housing in segregated, concentrated areas, which seems to have an opposite effect of affirmatively furthering fair housing. brief references to the department’s obligations under the fair housing act can be found in the irs regulations, referencing broad regulations governing hud-assisted housing.88 in addition, the treasury has a “general public use” rule for the lihtc program, which imposes penalties for acts of discrimination against individual renters of tax credit units.89 however, it fails to address some of the more pertinent obligations, 80 abt associates inc., are states using the low income housing tax credit to enable families with children to live in low poverty and racially integrated neighborhoods? (2006). 81 id. 82 william l. taylor, dianne m. piché, crystal rosario & joseph d. rich, citizens’ commission on civil rights & center for american progress, the erosion of rights: declining civil rights enforcement under the bush administration 100 (2008). 83 exec. order no. 12892, 59 fr 2939. 84 in re adoption of 2003 low income hous. tax credit qualified allocation plan, 848 a.2d 1 (super. ct. app. div. 2004) (reiterating that the duty to affirmatively further integrated housing applies to all federal housing programs, and therefore would include the lihtc). see also jones v. office of the comptroller of the currency, 983 f.supp. 197, 204 (d.d.c 1997). 85 title vi, 42 u.s.c. § 2000d (1964); 29 u.s.c. §§ 794, 504 (2015). 86 26 u.s.c. § 42 (2013). 87 id. see also civil rights mandates in the low income housing tax credit (lihtc) program, poverty & race research action council (2004), http://www.prrac.org/pdf/crmandates.pdf. 88 26 c.f.r. 1.42-9(a) (1990). (“a residential rental unit is for use by the general public if the unit is rented in a manner consistent with housing policy governing non-discrimination, as evidenced by rules or regulations of the department of housing and urban development (hud) (24 cfr subtitle a and chapters i through xx).”). 89 treas. reg. § 1.42–9 (for use by the general public). 204 a seat at the table vol. 6:2 which includes a requirement that housing credit agencies take steps to prevent racial segregation and promote integrated housing choices for low-income, minority families. the treasury also entered into a fruitless “memorandum of understanding” with hud and the department of justice in 2000 to explore the implementation of fair housing standards.90 in terms of the occ, its administration of national bank investments in lihtc projects does not meet the public welfare standard. “[t]he granting of federal assistance for [. . .] housing and related facilities from which americans are excluded because of their race, color, creed, or national origin is unfair, unjust, and inconsistent with the public policy of the united states as manifested in its constitution and laws.”91 therefore, actions that maintain racial segregation of minorities into areas with concentrated poverty and distress does not satisfy the public welfare.92 the treasury and occ’s lack of data collection also makes them ill equipped to deal with the problem in a meaningful way. in his 2006 comment, lance freeman suggests that these offices use a “don’t ask, don’t tell” approach to avoid dealing with the lack of civil rights oversight.93 “by not collecting information on tenants, policy makers are in effect not asking whether the lihtc program is truly fostering choice and opportunity. without tenant information, there is no triggering mechanism for fair housing groups to use: there is nothing to tell.”94 having data on project applicants and residents would help to determine if the lihtc program is helping to make neighborhoods more or less segregated over time. c. reform efforts: retracing recent litigation in response to the failure of state housing finance agencies to develop lihtc housing in areas that avoid sustaining further racial and economic segregation, advocates in states such as new jersey, connecticut, and texas have brought legal challenges.95 retracing these efforts can help to understand the gaps where future reform should aim to fill. 1. new jersey as with most states, new jersey’s housing and mortgage finance agency has considerable discretion when determining how to distribute the state’s lihtc allocation. in general, the state’s qap and practices show a preference for concentrating low-income family housing in metropolitan areas.96 for example, in 2002, eighty percent of hmfa’s allocation provided funding for family units in urban areas.97 civil rights advocates brought suit to challenge these practices in the case in re adoption of the 2003 low income housing tax credit 90 memorandum of understanding regarding low income housing tax credit, the department of the treasury, the department of housing and urban development, and the department of justice, aug. 11, 2000, http://portal.hud.gov/hudportal/hud?src=/program_offices/fair_housing_equal_opp/lihtcmou. 91 exec. order no. 11063, 3 c.f.r. 652 (1962). 92 complaint at 17, icp v. dept. of treasury & occ, (no. 3:14-cv-03013-d), 2015 wl 4629635 (2015). 93 lance freeman, comment on kirk mcclure’s “the low income housing tax credit program goes mainstream and moves to the suburbs,” 17 housing policy debate 447, 455 (2006). 94 id. 95 in addition, in 2003, eleven state and national fair housing groups sent a broad pre-litigation letter to the irs administrator of the lihtc program. letter from judith liben, philip tegeler, kevin d. walsh, erin boggs, gideon anders, elizabeth k. julian, david j. harris, edward johnson, michael allen, jorge elorza & ilene j. jacobs, staff attorney, massachusetts law reform institute, to grace robertson, internal revenue service (mar. 30, 2004), http://www.prrac.org/pdf/irsletter.pdf. 96 kenneth h. zimmerman, the low income housing tax credit program and civil rights law: updating the fight for residential integration, in fifty years later: brown v. board of education and housing opportunity, the nimby report, 4, 25 (nat’l low income hous. coal. ed., 2004). 97 id. 2016 columbia journal of race and law 205 qualified allocation plan.98 the fair housing group fair share housing center and two chapters of the naacp claimed that the “hmfa was under a constitutional, statutory and regulatory duty to promote racial and economic integration” and the state of new jersey violated federal and state law by concentrating lihtcfunded housing in radically segregated, poor areas. 99 the state opposed the challenge arguing that its administration of the program fulfilled their constitutional and statutory obligation by encouraging housing development and revitalization in urban areas.100 they also argued that they had been making reforms that continued the revitalization efforts and also promoted mixed income housing through setting aside funds from the hope vi program, and now offering equal preference for 100% affordable housing projects and mixed income projects.101 they expressed doubt that moving funding from projects in urban areas to suburban areas would actually have the desired impact of creating more housing for inner city families.102 while many amicus briefs were filed, one non-profit, the new jersey institute for social justice, provided some needed balance.103 the new jersey institute for social justice argued that while the state should be mandated to comply with fair housing laws, this should not preclude allocating lihtcs to urban areas.104 in 2004, the three-judge panel of the state’s appellate division issued a decision that stated state allocation of the lihtc did fall under the fair housing act’s duty to “affirmatively further” fair housing.105 however, the court also determined that the hmfa administered their program in accordance with the law.106 the court neither clarified the “affirmatively further” standard nor pointed to any direct actions that the hmfa took to align their program with the mandate. as noted by kenneth zimmerman, the “appellate division’s decision violates basic canons of statutory construction by ignoring completely the language of the fha, its legislative history, or the substantial authority, including shannon, 1970, interpreting it.”107 2. connecticut a similar case was brought in connecticut in 2004 by a local community organization that challenged the state’s administration of the lihtc program and asserted that federal and state law implies a private right of action to require government housing agencies to affirmatively promote fair housing.108 connecticut law explicitly requires state housing finance agencies to “affirmatively promote fair housing choice and racial and economic integration in all programs.”109 however, in asylum hill problem solving revitalization association v. king, the court ruled that there is no private right of action to enforce federal and state fair housing laws because there was no indication that federal or state fair housing law created such a right.110 the court also held that 98 in re adoption of 2003 low income hous. tax credit qualified allocation plan, 848 a.2d 1 (super. ct. app. div. 2004). 99 id. at 9. 100 id. 101 id. at 9–10. 102 id. at 10. 103 brief in support of motion to appear as amici curiae and on the merits, in re adoption of 2003 low income hous. tax credit qualified allocation plan, 848 a.2d 1 (app. div. 2004), http://www.njisj.org/assets/documents/amicusbrief--finalversion.pdf. 104 id. 105 id. at 13. 106 id. at 15. 107 zimmerman, supra note 96, at 28. 108 asylum hill problem solving revitalization ass’n v. king, 2004 wl 113560 (conn. super. ct. jan. 5, 2004), aff'd, 277 conn. 238, 890 a.2d 522 (2006). 109 public act 91-362 (codified in part at conn. gen. stat. § 8-37cc(b)), https://www.cga.ct.gov/ps91/act/pa/1991pa-00362-r00hb-05523-pa.htm. 110 asylum hill, 2004 wl 113560 at *10. 206 a seat at the table vol. 6:2 the agency bringing the suit lacked standing because it was not a private resident that would benefit from the law’s enforcement.111 3. texas perhaps the most interesting case has been filed just last year in texas. the inclusive communities project (icp) filed suit in august of 2014 alleging that the treasury and the occ administer the lihtc program in the dallas, tx metro area in a manner that is discriminatory and that violates their duty to affirmatively further fair housing. “as of 2013, [ninety-seven percent] of non-elderly lihtc units in the city of dallas were located in census tracts with more than [fifty percent] minority residents.”112 the plaintiffs cite a hud report that states from 1995 to 2006, sixty-nine percent of the seven county-dallas metropolitan area lihtc units were in tracts with over fifty percent minority population, totaling 24,325 units.113 ninety-one percent of the non-elderly lihtc units in the dallas were located in a census tract with a treasury distress index of three or four and concentration of minority residents greater than fifty percent.114 this represents 18,398 of the city’s non-elderly lihtc units. eighty-nine percent of the total $661,512,325 lihtc allocation for non-elderly developments in dallas was in census tracts with a distress index of three or four and a concentration of minority residents greater than fifty percent.115 lastly, 27,632 of the dallas metro area lihtc units, or seventy-three percent are in a census tract with a distress index of three or four and a concentration of minority residents greater than fifty percent.116 the suit also targets the occ specifically for approving national bank investments in these lihtc units that fail to meet public welfare requirements. icp argues that the “public welfare is not satisfied by actions that perpetuate racial segregation of blacks or hispanics into minority concentrated areas marked by conditions of slum, blight, and distress,” and goes directly against the fha.117 they further stipulate that the occ should follow the public welfare standards issued in executive order no. 11063, which prevents federal assistance for housing that excludes americans because of their race, color, creed or national origin because it is inconsistent with public policy.118 icp asserts that the treasury and occ “knowingly, consistently, and repeatedly allow and approve investments in lihtc units that perpetuate racial segregation and unequal conditions.”119 as a remedy, the lawsuit sought to enjoin treasury’s and occ’s approval of investments in lihtc projects by regulated banks unless the units contribute to a meaningful community revitalization plan; to mandate that the treasury and occ require banks to use their public welfare investments in part for housing mobility counseling services for families in concentrated low-income, minority areas; and to enjoin the treasury to provide clear guidelines and incentives for national bank investments in lihtc unit that do not perpetuate racial segregation, and from being able to allocate lihtc tax credits in a way that does not affirmatively further fair housing under 42 u.s.c. § 3604.120 111 id. at *7. 112 complaint at 17, icp v. dept. of treasury and occ, (no. 3:14-cv-03013-d), 2015 wl 4629635 (2015); exec. order no. 11063, 3 cfr 652 (1959–1963 comp.). 113 id. at 14. 114 id. at 15. 115 id. at 17. 116 id. at 16. 117 id. at 17. 118 exec. order no. 11063, 3 cfr 652 (1962). 119 brief for plaintiff at 1, icp v. dept. of treasury and occ, (no. 3:14-cv-03013-d), 2015 wl 4629635 (2015). 120 id. 2016 columbia journal of race and law 207 iv. reforming the lihtc program through reforming its governing structure since its inception, the federal lihtc program has operated with little civil rights oversight. with the increased litigation and the growing problem of racial segregation and discrimination, this should change immediately. this section will look at the various solutions that have been proposed in recent years and will propose proper guidance for actually implementing these changes in a substantive way. many scholars have attempted to provide suggestions for the best ways that state housing finance agencies, the treasury or occ, can make meaningful changes to their policies and practices. in her well-cited 1998 article, professor florence roisman suggested three amendments to the treasury’s policies governing the lihtc program. 121 for one, she argued that the treasury should amend its regulations to explicitly acknowledge the authority of title viii and hud’s title viii regulations as well as its obligation to affirmatively further fair housing.122 second, roisman argued that the treasury should amend its regulations to provide better guidance to the state housing finance agencies for how to administer the lihtc program in accordance with civil rights law.123 lastly, she suggests that the treasury should modify their regulations to specify what developers must do to satisfy civil rights obligations.124 while many scholars who advocate for reform would argue for similar changes, there is still debate over why and how the treasury should make these changes. a. approaches to implementing reform many approaches to implementing civil rights reform to the lihtc statute have emerged over recent years. there are several that provide interesting and promising methods. professor myron orfield, director of the institute on metropolitan opportunity, argues that in order to construct effective reform to the current lihtc statute, the obligation to affirmatively further fair housing must be prioritized over the qualified census tract program.125 orfield also suggests that housing credit-agencies should be required to develop “concerted revitalization plans” to place lihtc projects in places that can sustain long-term integration, prevent resegregation, and incorporate principles of opportunity-based housing.126 henry korman, a housing attorney with experience in hud and legal services, put forth several reasons why implementing civil rights strategies in affordable housing programs would come with difficulties.127 these problems include pushback from restrictive communities and local governments that insulate the existing segregation, the lack of available funds on the state and local level to contribute to community planning, development, and implementation of successful programs, and the extent to which federal agencies are engaged in implementation, oversight, enforcement, and financial support.128 korman proposed that states should take an “underwriting” approach to incorporating civil rights values when providing affordable housing, making fair housing duties a consideration at every stage of the development and management process.129 governments 121 roisman, supra note 74. 122 id. at 1047. 123 id. 124 id. 125 see orfield, supra note 14. 126 id. at 150. 127 see henry korman, underwriting for fair housing? achieving civil rights goals in affordable housing programs, 14 j. affordable hous. 292 (2005). 128 “[e]qual housing opportunity has true efficacy if housing providers are cognizant of people; supportive of individual human needs within the context of a community; and protective of the right to live free of bias and fear, near to real social and economic opportunity, without regard to race, color, ethnic origin, disability, age, and other protected characteristics.” id. at 312. 129 id. at 303. 208 a seat at the table vol. 6:2 should treat civil rights concerns with the same level of attention given to any other risk underwritten in a real estate transaction. those who propose opportunity-based housing argue that the reform to the lihtc program should reward applications that focus on opening up access to the “complex, interconnected web of opportunity structures [. . .] that significantly affect [. . .] quality of life” rather than only focusing on removing conditions of segregation.130 this model would create greater lihtc tax incentives to developments that support strategies that tie housing location with environmental safety, employment opportunities, and promising educational prospects.131 this opportunity-based housing aims to allow low-income households and people of color to have greater participation in the reform process by opening the political processes that govern local decision-making.132 furthermore, this model relies on the government to take a greater role in reforming federal policies to combat segregated housing patterns and affirmatively further fair housing, partly achieving this by reforming the lihtc procedural structure to further opportunity-based aims.133 b. recommendations the treasury should explicitly acknowledge the authority of title vi and the fha in their policies and regulations, establish a centralized, federal governing body to ensure state housing finance agencies are in compliance with civil rights laws, and require state hfas to establish governing bodies that are inclusive of the communities they serve. 1. the treasury should explicitly incorporate title vi and title viii values reform to the lihtc statute requires compliance with title vi of the civil rights act and the fha by explicitly acknowledging the authority of these federal laws within their policies, regulations, and practices. first, the treasury should include lihtc as one of the federal financial assistance programs that triggers the protections of title vi. second, the lihtc statute should be revised to comprehensively list and explain each civil rights obligation in lihtc project development, including non-discrimination by race, color, religion, sex, familial status, disability, national origin or source of income, and states’ duty to affirmatively further fair housing in their administration of the program. this would require federal and state governments to assess the goals of the program and provide better balance between the use of lihtc funds to revitalize urban neighborhoods and promote integrated housing patterns. this list is not comprehensive. to achieve quality reform, the department of treasury must work with civil rights authorities within the government and in the wider legal community. it is important that the statute provide clear guidance to federal and state administrators that this program prioritizes fair housing. for example, the treasury must work with federal and state civil rights authorities and hud to develop standards for development in higher poverty neighborhoods that comply with civil rights and fair housing law.134 treasury regulations could require that lihtc developments in low-income neighborhoods should include 130 john a. powell, opportunity-based housing, 12:2 j. affordable hous. & community dev. l. 188, 190 (2003). 131 see, e.g., john a. powell, samir gambhir, jason reece & christy rogers, the kirwan institute for the study of race and ethnicity, communities of opportunity: a framework for a more equitable and sustainable future for all 7–8 (2007). 132 id. at 205–17. see also lisa robinson & andrew grant-thomas, the civil rights project, harvard university, race, place, and home: a civil rights and metropolitan opportunity agenda 87 (2004). 133 id. at 72–73, 85; florence wagman roisman, long overdue: desegregation litigation and next steps to end discrimination and segregation in the public housing and section 8 existing housing programs, 4 cityscape: j. pol’y dev. & res. 178 (1999). 134 poverty & race research action council, civil rights mandates in the low income housing tax credit (lihtc) program (2004), http://www.prrac.org/pdf/crmandates.pdf. 2016 columbia journal of race and law 209 higher-income eligibility and mixed-income housing. in addition, the treasury could link lihtc development with home ownership and economic development efforts as a way to encourage more opportunity-based housing.135 the department of treasury should also amend the qap criteria to reflect civil rights values and provide greater consistency in the ways that states implement preferences nationwide. 2. establish a governing body to ensure state housing finance agencies are in compliance with civil rights laws in order the ensure that the reforms to the lihtc statute are ongoing and effective, the federal program should be monitored by an interagency body including, inter alia, federal administrators of the lihtc, authorities from state housing finance agencies, non-profit members, and community activists. this body should be tasked with providing ongoing guidance for updating lihtc policies and practices to ensure their compliance with fair housing laws, and assessing the goals of the lihtc program in relation to its impact on the community. furthermore, this body should be tasked with monitoring and establishing clear guidelines for state regulations and implementation. state governments should be required to assess their current lihtc programs and create a report analyzing any limitations it has to affirmatively furthering fair housing as a condition of federal funding for housing and community development. they should also evaluate their qaps as part of the analyses and require that state housing agencies submit yearly reports explaining how the criteria detailed in their qaps were met. these reports should be made public to promote the transparency and provide a disincentive for discrimination in its administration. this recommendation would likely increase administrative costs of the program, however, it would also enhance oversight of the program and ensure that it is achieving the policy objectives of providing racially and economically integrated affordable housing that would be in compliance with federal housing policy. 3. require state hfas to establish governing bodies that are representative of the communities they serve state housing finance agencies should be required to establish a governing body that is diverse and representative of the communities they serve in order to ensure that decision-making and planning reflects the diversity of residents. this change will increase the likelihood that lihtc projects reflect the needs of all residents in the community and provide affordable housing and more effective solutions to combat segregation and discrimination. when low-income, minority populations are not given a seat at the table with critical decision-making bodies and are less involved in the development of plans, they often do not reap the benefits of these potentially transformative programs. also, by requiring a collection and analysis of lihtc data within their state, housing finance agencies and their governing bodies will be able to enhance the effectiveness of the lihtc program for all communities and allow for compliance with title vi and title viii. data collection on the state of the program “will permit officials to understand the civil rights impact of the program and to assess whether the siting and occupancy practices of tax credit developments have contributed to or ameliorated patterns of metropolitan segregation.”136 the data should be comprehensive, the collection should be swift and the information should be made available to the public at the project level so that community members have the opportunity to assess the impact of the lihtc location and racial or economic segregation. this will help to guide future implementation, affirmative marketing, and education.137 the federal governing body can provide additional 135 for more information, see alan mallach’s proposal for the new jersey program, toward a policy framework for the allocation of low income housing tax credits, new jersey institute for social justice (2003). 136 lihtc data collection comment letter (may 5, 2009), http://www.prrac.org/pdf/lihtc_data_collection_comment_letter_5-5-09.pdf. 137 id. 210 a seat at the table vol. 6:2 support to this effort through monitoring state hfas to ensure boards are representative of their encompassing communities. v. conclusion neither the treasury nor occ have any regulations, guidance, reports, or audits to further fair housing by enforcing federal nondiscrimination policies and their legal duty to overcome patterns of racial segregation in housing under the fha. the fair housing act provides that federal agencies that have regulatory authority over financial institutions need to administer their programs in a manner that affirmatively furthers fair housing, part of treasury’s policies under the lihtc statute gives preference for affordable housing projects being developed in areas with concentrated poor, minority families. state housing finance agencies are administering this program discretionarily, without any guidance on how to implement the program in accordance with civil rights law. the treasury should (1) explicitly acknowledge the authority title vi and the fha in their policies and regulations; (2) establish a centralized, federal governing body to assure state housing finance agencies are in compliance with civil rights laws; and (3) require state hfa to establish governing bodies that are inclusive of the communities they serve. with an informed and representative governing structure, this program will fulfill its potential to successfully provide affordable housing in accordance with the fair housing act of 1968. articles racial profiling legalized in arizona marjorie cohn*   introduction ...................................................................................... 169   i. constitutional deficiencies of s.b. 1070 ......................... 170 a. s.b. 1070 will require racial profiling ................................ 170 b. s.b. 1070 violates the fourth amendment ....................... 171 c. s.b. 1070 is unconstitutionally vague ................................. 172 d. s.b. 1070 violates the supremacy clause .......................... 172 ii. practical deficiencies of s.b. 1070 ..................................... 174 a. s.b. 1070 will harm communities ...................................... 174 b. s.b. 1070 will increase harassment against latinos ........ 176 c.   immigration status cannot generally be ascertained in a brief detention .............................................................. 177   d.   other states have adopted legislation similar to s.b. 1070 ............................................................................. 178   e.   other insidious sections of s.b. 1070 remain in force .................................................................................... 181   f.   local law enforcement cannot properly enforce federal immigration laws ..................................................... 181   iii.  s.b. 1070 and human rights: s.b. s legalized racism violates universally recognized human rights ............................................................................................. 182   iv.   immigration enforcement during the obama administration ........................................................................... 184   v.   conclusion ................................................................................... 185   * professor of law, thomas jefferson school of law;; past president, national lawyers guild;; deputy secretary general, international association of democratic lawyers;; u.s. representative, american association of jurists;; board of directors, u.s. human rights network;; board of governors, society of american law teachers. my thanks to the staff of the columbia journal of goes arizona, so goes the nation? immigration and civil rights in the 21st event. 169 racial profiling legalized in arizona vol. 1:2 introduction in 2010, arizona enacted s.b. 1070, which legalizes racial profiling in that state, and effectively converts local law enforcement officials into de facto u.s. immigration and customs enforcement (ice) officials. reasonable attempt . . . when practicable, to determine the 1 arrested shall have th 2 finally, a the united stat listed in the statute.3 section 2(b) requires officers to verify the immigration status of all arrestees before they are released, regardless of whether or not they have reasonable suspicion that the arrestee is an undocumented immigrant.4 immigration status cannot be determined merely by a indeed, when arizona governor janice brewer, who signed s.b. 1070 into law, was asked what criteria will be used to determine reasonable suspicion that a person is not 5 1 ariz. rev. stat. ann. § 11-1051(b) (2010). 2 id. 3 acceptable forms of identification include: a valid arizona driver license;; a valid arizona non-operating identification license;; a valid tribal enrollment card or other form of tribal identification;; or any valid united states federal, state or local government issued identification if the entry requires proof of legal presence in the united states before issuance. id. 4 united states v. arizona, 641 f.3d 339, 344 (9th cir. 2011), cert. granted, no. 11-182, 2011 wl 3556224 (s. ct. dec. 12, 2011). 5 gov. jan brewer (r-az) doesn t know what an illegal immigrant looks like, apr. 23, 2010, http://www.youtube.com/watch?v=f2vsgewzew0. http://web2.westlaw.com/find/default.wl?serialnum=2024978532&tc=-1&rp=%2ffind%2fdefault.wl&sv=split&rs=wlw11.07&db=506&tf=-1&findtype=y&fn=_top&mt=westlaw&vr=2.0&pbc=a38e7bde&ordoc=2025904775 http://www.youtube.com/watch?v=f2vsgewzew0 2012 columbia journal of race and law 170 i. constitutional deficiencies of s.b. 1070 a. s.b. 1070 will require racial profiling by its very terms, s.b. 1070 necessitates racial profiling. the and/or ethnicity as an indication of criminality, reasonable suspicion, or probable cause, except when part of a description of a suspect, and said description is timely, reliable, and geographically 6 although the new statute says that law enforcement lowed by the 7 indeed, s.b. 1070 effectively requires the consideration of race, color and national origin because it is unfathomable how a law enforcement official could avoid considering those factors in deciding whom to investigate under the new law. even the most well-meaning officer cannot possibly determine whether an individual may be undocumented without making judgments based on apparent race, color and national origin. percent based on race and ethnicity, no 8 s.b. 1070 pays lip service to the ban on racial profiling while essentially requiring racial profiling during detentions and arrests. it casts a wide net over the entire latino population of arizona and thus, it will be impossible for the law to be enforced in a racially neutral manner. 6 no. cv-01-1463-phx-loa, 2006 wl 2168637 (d. ariz. july 31, 2006);; joyce mcmahon et al., how to correctly analyze racial profiling data: your reputation depends on it! -based incorporating personal, societal, or organizational biases and/or stereotypes as the basis, or factors considered, in decision-making, police actions, or the 7 ariz. rev. stat. ann. § 11-1051(b). 8 peter slevin, arizona law on immigration puts police in tight spot, wash. post, apr. 30, 2010, available at http://www.washingtonpost.com/wpdyn/content/article/2010/04/29/. http://www.washingtonpost.com/wp-dyn/content/article/2010/04/29/ http://www.washingtonpost.com/wp-dyn/content/article/2010/04/29/ 171 racial profiling legalized in arizona vol. 1:2 b. s.b. 1070 violates the fourth amendment amendment, governing searches and seizures. that amendment provides: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.9 moreover, under terry v. ohio, reasonable suspicion to support a stop must arise before the stop;; police may not detain individuals on 10 s.b. 1070 violates this well-established fourth proxy for racial profiling. an officer must be able to articulate specific facts to justify the stop. in united states v. brignoni-ponce, the supreme court said that hispanic appearance neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the 11 additionally, the united states court of appeals for the ninth circuit held in gonzalez-rivera v. immigration & naturalization service that subjective impressions are not sufficient to transform innocent behavior into suspicious activity.12 yet enforcement of s.b. 1070 requires law enforcement officers to use subjective considerations, such as skin color, language, and manner of dress, to determine whether they think a detainee is unlawfully present in the united states. race, ethnic appearance, and language are not reliable indicators of alienage. in united states v. montero-camargo, the ninth majority or even a substantial part of the population is hispanic, any given person of hispanic ancestry is in fact an alien, let alone an illegal alien, is not high enough to make hispanic appearance a 9 u.s. const. amend. iv. 10 392 u.s. 1, 27 (1968). 11 422 u.s. 873, 886 (1975). 12 22 f.3d 1441, 1447 (9th cir. 1994). 2012 columbia journal of race and law 172 13 likewise, the ninth circuit ruled in united states v. manzo-jurado that an speak english, proximity to the border, and unsuspicious behavior did not establish reasonable suspicion of illegal presence.14 in 2009, the united states supreme court held in arizona v. johnson that a seizure is unlawful if an officer extends the duration of the stop or alters the nature of the stop by inquiring into matters unrelated to the justification of the stop, including questions about immigration status.15 the supreme court ruled in hiibel v. sixth judicial district that an officer cannot arrest a suspect for failure to identify himself unless the request for identification is reasonably related to the circumstances justifying the stop.16 by requiring an officer to demand papers for immigration purposes after a stop, detention, or arrest for a different matter, s.b. 1070 runs afoul of hiibel. c. s.b. 1070 is unconstitutionally vague in addition to enabling racial profiling, s.b. 1070 is facially vague and therefore unconstitutional. the supreme court struck down as unconstitutionally vague a california statute that identification upon demand after an otherwise lawful stop.17 officers conducting an immigration status check on an individual nee such a check requires identification as well as other federal documents proving presence cannot rise to the level of reasonable suspicion to believe the person is unlawfully present in the country. thus, because s.b. 1070 criminalizes the failure to prove lawful presence in the united states, it is unconstitutionally vague. d. s.b. 1070 violates the supremacy clause s.b. 1070 also violates the supremacy clause of the constitution.18 on july 28, 2010, united states district court judge 13 208 f.3d 1122, 1132 (9th cir. 2000) (en banc), cert. denied, 531 u.s. 889 (2000). 14 457 f.3d 928, 932 (9th cir. 2006). 15 129 s. ct. 781, 783 (2009). 16 542 u.s. 177, 188 (2004). 17 kolender v. lawson, 461 u.s. 352, 361 (1983). 18 u.s. const. art. vi, § 2. 173 racial profiling legalized in arizona vol. 1:2 susan bolton issued a preliminary injunction enjoining enforcement, on preemption grounds, of four sections of s.b. 1070.19 judge bolton enjoined the following sections of the statute: 1) section 2(b), which requires that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained, or arrested if there is reasonable suspicion that the person is unlawfully present in the united states, and it also requires verification of the immigration status of any person arrested prior to releasing that person;;20 2) section 3 creates a state crime for failure to apply for or carry alien registration papers;;21 3) section 5(c) creates a state crime for an unauthorized alien to solicit, apply for, or perform work;;22 and 4) section 6 authorizes the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes her removable from the united states.23 the ninth circuit agreed with judge bolton and affirmed the preliminary injunction enjoining enforcement of s.b. 1070 sections 2(b), 3, 5(c), and 6.24 the immigration and nationality act (ina) grants the federal government exclusive power to regulate u.s. borders.25 in section 3 of s.b. 1070, undocumented immigrants in arizona face twenty days in jail and a $100 fine for the first offense and thirty days in jail for the subsequent violation.26 by mandating that state officers enforce federal immigration law and by establishing a separate state crime for anyone who violates federal immigration law, s.b. 1070 contravenes the federal preemption doctrine that emanates from the supremacy clause of the constitution, and the of the constitution [] that congress has the 27 furthermore, s.b. 1070 requires the detention of individuals during inquiries and after arrests. the ninth circuit held that ble that section, according to 19 united states v. arizona, 703 f. supp. 2d 980 (d. ariz. 2010). 20 ariz. rev. stat. ann § 11-1051 (b). 21 id. § 13-1509. 22 id. § 13-2928(c). 23 id. § 13-3883(a)(5). 24 united states v. arizona, 641 f.3d at 366. 25 8 u.s.c. § 1357(g);; see united states v. arizona, 641 f.3d at 339. 26 ariz. rev. stat. ann. § 13-1509(a). 27 see united states v. arizona, 641 f.3d at 350. 2012 columbia journal of race and law 174 inquiries it requires that people be detained until those inquiries are settled, and in the event of an arrest, the person may not be released until the 28 in holding that the federal government preempts arizona from enforcing the immigration & nationality act, the ninth scheme because arizona has assumed a role in directing its officers 29 likewise, the removability determinations and set priorities with regard to the enforcement of civil immigration laws. accordingly, section 6 stands as an obstacle to the full purposes and objectives of 30 for unauthorized immigrants to v according to the ninth circuit.31 additionally, the court observed, work which congress 32 ii. practical deficiencies of s.b. 1070 a. s.b. 1070 will harm communities the new law effectively compels arizona police to make immigration enforcement their top priority. local law enforcement will be forced to divert scarce resources away from serious crime in order to enforce federal immigration laws. indeed, several law enforcement groups oppose s.b. 1070. the law enforcement engagement initiative, an organization of police officials who favor federal immigration reform, condemned the law, saying it would likely result in racial profiling and threaten public safety because undocumented people would hesitate to come forward and report crimes or cooperate with police for fear of being deported.33 the arizona association of chiefs of police also criticized the legislation tively affect the ability of law enforcement 28 id. at 348, n.7. 29 id. at 350. 30 id. at 365. 31 id. at 355. 32 id. at 360. 33 randal c. archibold, authority divides law enforcement, n.y. times, apr. 21, 2010, http://www. nytimes.com/2010/04/22/us/22immig.html. http://www.nytimes.com/2010/04/22/us/22immig.html http://www.nytimes.com/2010/04/22/us/22immig.html 175 racial profiling legalized in arizona vol. 1:2 agencies across the state to fulfill their many responsibilities in a the group believes the immigration issue is best addressed at the federal level.34 s.b. 1070 also will have detrimental effects on society as a whole. children will fall behind their peers. the decline in enrollment will deprive schools of badly needed funding. schools will lose the ability to maintain class sizes at appropriately small levels. additionally, resources will be unavailable to all remaining students in these schools.35 some latino families left arizona after s.b. 1070 was enacted.36 the exodus affects the entire community as friendships are severed, school sports teams lose players, and other school activities are deprived of participants. in plyler v. doe, the supreme court held that all children even undocumented children are entitled to primary and secondary education.37 public schools are required to document the residence and educational history of each new student. if this mexico or another latin american country, it could be viewed as evidence that the student or someone in her family is undocumented. further, because s.b. 1070 makes it illegal for any governmental entity, including a public school, to prohibit the transfer of such information to law enforcement agencies in contravention of federal law,38 this data could be used to deport the student or a family member. the chilling effect of the law also could extend to other public benefits, including emergency medicare assistance, immunization programs, school breakfast and lunch programs, and testing and treatment for communicable diseases. this reality will pose an acute risk to the health of all u.s. residents. the statute 34 fact check: more than just a new arizona immigration law, think progress, apr. 21, 2010, http://thinkprogress.org/2010/04/21/arizona-immigration-police/. 35 pat kossan, schools: immigrant families leaving arizona because of new immigration law, arizona republic, may 28, 2010. 36 id. 37 457 u.s. 202 (1982). 38 ariz. rev. stat. ann. § 11-1051(f). the family and educational right and privacy act of 1974 (ferpa), codified at 20 u.s.c. § 1232g, establishes privacy guidelines for education records of schools that receive see 20 u.s.c. § 1232g(a)(5);; 34 c.f.r. § 00.3. http://thinkprogress.org/2010/04/21/arizona-immigration-police/ http://web2.westlaw.com/find/default.wl?tf=-1&rs=wlw11.01&referencepositiontype=s&serialnum=1982126797&fn=_top&sv=split&referenceposition=225&pbc=927b2d8d&tc=-1&ordoc=0357519109&findtype=y&db=780&vr=2.0&rp=%2ffind%2fdefault.wl&mt=208 2012 columbia journal of race and law 176 could transform the routine enforcement of local ordinances into targeted immigration raids. a substantial portion of arizo may be concerned that s.b. 1070 will apply disproportionately to them, even if they are legal residents. nearly thirty percent of 39 since arizona shares a substantial border with mexico, it is likely that hispanics will be constant targets for immigration status inquiry under the new law. b. s.b. 1070 will increase harassment against latinos there already have been negative repercussions from s.b. 1070. revenue because many in the latino community whose annual purchasing power is approximately $31 billion40 are choosing to stay home rather than risk harassment by the police whenever they go out to shop or dine.41 s.b. 1070 will increasingly polarize and further divide it will embolden the the media will report investigations, raids, and arrests of latinos, which will reinforce the stereotype that most latinos have unlawful immigration status. risk of hate crimes, which tend to rise substantially when antiimmigrant laws like s.b. 1070 are enacted.42 for example, after increase in violence and civil rights violations against latinos.43 39 u.s. census bureau, 2006-2008 american community survey 3-year estimates, available at http://www.factfinder.census.gov (arizona figures). interchangeably in this essay. 40 tim gaynor, arizona immigration law hits latino businesses, reuters, may 11, 2010, http://www.reuters.com/article/idustre64a4 ey20100511. 41 eugene scott, latino-focused shops feeling impact of bill, arizona republic, may 11, 2010, at d3. 42 leadership conference on civil rights, cause for concern: hate crimes in america (1997), http://www.empowermentzone.com/hate_rpt.txt. 43 to create a state-run citizenship screening system in order to prohibit illegal immigrants from using health care, public education, and other social services in california. the law was struck down. see lulac v. wilson, 997 f. supp. 1244 (c.d. cal. 1997). http://www.factfinder.census.gov/ http://www.reuters.com/article/idustre64a4ey20100511 http://www.reuters.com/article/idustre64a4ey20100511 http://www.empowermentzone.com/hate_rpt.txt 177 racial profiling legalized in arizona vol. 1:2 moreover, s.b. 1070 contains a provision allowing any arizona resident to bring an action in state court challenging any law that limits or restricts the enforcement of federal immigration 44 in the current climate of xenophobia, this provision will invite increased harassment and intimidation of people of color, both documented and undocumented. people will report their latino neighbors and co-workers to the police. a complaint of excessive noise due to a barking dog or a festive party could trigger an investigation into a lat immigration status. police officials in tucson reported that the day after s.b. 1070 was signed into law, their office was flooded with 45 c. immigration status cannot generally be ascertained in a brief detention immigration status cannot be determined by state and local law enforcement officers, or even by federal immigration officers, during a brief investigatory detention. apparent from physical presence or language, but rather is a legal status established by operation of a complex set of immigration laws. birth in the united states is a clear indicator that a person is not an alien.46 however, foreign birth is not a certain indicator of alienage. respective citizenship47;; the duration and timing of their residence in the united states48 birth49;; the year in which the individual was born50;; the place where the person was born51;; and possibly the date on which a child born out of wedlock was legitimated.52 none of these factors can be 44 ariz. rev. stat. ann. § 11-1051 (g). 45 peter slevin, arizona law on immigration puts police in tight spot, wash. post, apr. 30, 2010, available at http://www.washingtonpost.com/wp-dyn/ content/article/2010/04/29/ar2010042904970.html. 46 see u.s. const. amend. xiv, §1. 47 8 u.s.c. § 1401(c) (e),(g) (h) (2006). 48 id. § 140 (d) (e), (g) (h). 49 id. § 1409. 50 id. § 1401(h). 51 id. § 1401(c) (e), (g) (h). 52 id. § 1409. http://projects.washingtonpost.com/staff/articles/peter+slevin/ http://www.washingtonpost.com/wp-dyn/content/article/2010/04/29/ar2010042904970.html http://www.washingtonpost.com/wp-dyn/content/article/2010/04/29/ar2010042904970.html 2012 columbia journal of race and law 178 ascertained in a brief detention in order to give rise to reasonable suspicion of unlawful presence. the absence of immigration documents does not mean someone is unlawfully present in the united states. although the statute contains a presumption of lawful immigration status if a latino citizen produces an arizona driver s license,53 arizona law does not require citizens to possess a driver s license when they leave home. d. other states have adopted legislation similar to s.b. 1070 in concluding that preemption prevents arizona from enforcing the federal immigration laws, the ninth circuit expressed 54 indeed, since arizona enacted s.b. 1070, several other states have passed legislation with racial profiling provisions similar to alabama adopted h.b. 56, the beason-hammon 55 on september 28, 2011, united states district judge sharon l. blackburn upheld the racial profiling provisions of h.b. 56 as well as the section that requires school officials to verify the immigration status of children and their parents.56 according to linton joaquin, general counsel of national immigration law center, [t]he alabama court has permitted provisions of the law to take effect that require local police, and even school teachers, to become de facto immigration agents. 57 an immigrantrights group hot line reported receiving more than one thousand calls from pregnant women who were afraid to go to the hospital, victims of crime who were afraid to go to the police and parents who feared sending their children to school.58 the attendance of 53 ariz. rev. stat. ann. § 11-1051(b). 54 united states v. arizona, 641 f.3d at 354. 55 alabama taxpayer and citizen protection act, 2011 ala. acts 535 ( h.b. 56 ). 56 hispanic interest coalition of ala., et al. v. bentley, parsley v. bentley, united states v. state of alabama, 813 f. supp. 2d 1282 (n.d. ala. 2011). 57 undermines fundamental american values decision out-of-step with previous rebukes to state anti-immigrant laws, sep. 28, 2011, available at http://www.nilc.org/pubs/news-releases/nr102.htm. 58 see editorial, punishes the vulnerable, n.y. times, oct. 4, 2011, at a22. http://www.nilc.org/pubs/news-releases/nr102.htm 179 racial profiling legalized in arizona vol. 1:2 hispanic students fell noticeably as well.59 families have fled to thousand dollars or even less . . . dogs were fed one last time;; if no home could be found, they were s 60 farmers, contractors, rotting crops in the fields and critical labor shortages. even hispanic workers with legal documents are leaving, they said.61 reverend paul zoghby, whose congregation at st. margaret of scotland church in foley, alabama includes a large number of of the congregation in the past few weeks, and many more will be gone by next week. 62 mary bauer, legal director of the southern poverty law center, called the law a 63 on october 14, 2011, the united states court of appeals for the eleventh circuit issued a preliminary injunction against the section of h.b. 56 that requires schools to determine the immigration status of children who are enrolling, and that of their parents as well;; however, the court did not enjoin the racial profiling section of the alabama law.64 65 united states district court judge thomas thrash, jr. granted a preliminary injunction temporarily enjoining provisions of the georgia law.66 united states 59 id. 60 see campbell robertson, after ruling, hispanics flee an alabama town, n.y. times, oct. 4, 2011, at a1. 61 id. 62 see pamela constable, a tough new alabama law targets illegal immigrants and sends families fleeing, wash. post, oct. 8, 2011, available at http://www.washingtonpost.com/local/a-tough-new-alabama-law-targetsillegal-immigrants-and-sends-families-fleeing/2011/10/07/giqatzupwl_ story.html. 63 richard fausset, in alabama, strict new immigration law prompts alarm, l.a. times, oct. 9, 2011, at a18. 64 united states v. alabama et al., nos. 11 14532 cc, 11 14535 cc 2011 wl 4863957 (11th cir. oct. 14, 2011). 65 illegal immigration reform and enforcement act of 2011, h.r. 87 (ga. 2011), available at http://www1.legis.ga.gov/legis/2011_12/fulltext/ hb87.htm. 66 ga. latino alliance for human rights et al. v. deal, 793 f. supp. 2d 1317 (n.d. ga. 2011). http://www.washingtonpost.com/local/a-tough-new-alabama-law-targets-illegal-immigrants-and-sends-families-fleeing/2011/10/07/giqatzupwl_story.html http://www.washingtonpost.com/local/a-tough-new-alabama-law-targets-illegal-immigrants-and-sends-families-fleeing/2011/10/07/giqatzupwl_story.html http://www.washingtonpost.com/local/a-tough-new-alabama-law-targets-illegal-immigrants-and-sends-families-fleeing/2011/10/07/giqatzupwl_story.html 2012 columbia journal of race and law 180 district court judge sarah evans barker67 enjoined sections of the indiana law, s.e.a. 590.68 additionally, united states district court judge clark waddoups sta h.b. 497,69 pending further review.70 additionally, ,71 which was scheduled to take effect on january 1, 2012, will be challenged by the aclu as well.72 the supreme court granted certiorari in the arizona case;; it will rule on the constitutionality of s.b. 1070 by the end of the 20112012 term.73 last term, the court, in chamber of commerce of the united states v. whiting, ruled 5 to 3 in favor of the legal arizona workers act, which was enacted in 2007.74 that statute requires employers to use an electronic verification program, e-verify, and it establishes state sanctions of employers who employ undocumented workers. in (ironically) affirming a decision of the ninth circuit, the lls well within the confines of the authority congress chose to leave to the states and 75 but s.b. 1070 goes beyond the legal arizona workers act by criminalizing the solicitation, application for, or performance of work by an undocumented immigrant.76 in upholding the district ninth circuit noted that hod of discouraging unauthorized immigrant employment, likely reflects 67 buquer et al. v. city of indianapolis, 797 f. supp. 2d 905 (s.d. ind. 2011). 68 s.e.a. 590-117, first reg. sess. (ind. 2011), available at http://www.in.gov/legislative/bills/2011/se/se0590.1.html (last visited sept. 8, 2011). 69 utah coalition of la raza et al. v. herbert, no. 2:11-cv-401 cw, 2011 wl 7143098 (c.d. utah may 11, 2011). h.r. 497, 2011 gen. sess. (utah 2011), available at http://www.abc4.com/media/lib/5/9/9/b/99b4ca0d-0baa4d76-9df4-581aa04f2f92/hb0497.pdf. 70 herbert, 2011 wl 7143098, at *1. 71 s. 20-119 (s.c. 2011), available at http://www.scstatehouse.gov/se ss119_2011-2012/bills/20.htm (last visited sept. 8, 2011). 72 kim severson, federal court blocks georgia anti-immigrant law, aclu news (june 27, 2011), http://www.acluga.org/news/2011/06/ (last visited sept. 8, 2011). 73 arizona v. united states, no. 11-182, 2011 wl 3556224 (s. ct. dec. 12, 2011). 74 131 s. ct. 1968 (2011). 75 id. at 1970. 76 ariz. rev. stat. ann. § 13-2928 (c). 181 racial profiling legalized in arizona vol. 1:2 [sic] state 77 e. other insidious sections of s.b. 1070 remain in force while suspending some of the most egregious sections of s.b. 1070, judge bolton let stand the sections that criminalize the harboring and transporting of undocumented immigrants78 and that allow people to sue local governments if they believe federal immigration law is not being enforced.79 the former section will deter relatives from driving family members to school or the hospital for fear of apprehension. the latter section will lead to baseless lawsuits and force municipalities to expend large sums of money to defend them. unlawful profiling at the behest of private citizens already is occurring in connection with prior efforts by the police to enforce immigration laws. the defendant in a racial profiling lawsuit,80 sheriff joe arpaio of maricopa county, receives numerous requests to detain undocumented immigrants.81 f. local law enforcement cannot properly enforce federal immigration laws s.b. 1070 is not the first recent racist attack on undocumented immigrants. the federal program created by ina sec. 287(g) allows certain state and local law enforcement agencies to engage in federal immigration enforcement activities.82 however, a report released in march 2010 by the department of homeland security office of inspector general found a lack of oversight and training without adequate safeguards against racial profiling.83 77 united states v. arizona, 641 f.3d at 359. 78 united states v. arizona, 703 f. supp. 2d 980;; ariz. rev. stat. ann. § 13-2929. 79 united states v. arizona, 703 f. supp. 2d 980;; ariz. rev. stat. ann. § 11-1051 (g). 80 see infra text accompanying note 85. 81 see http://www.mcso. org/index.php?a=getmodule&mn=posse. the office uses a public hotline to enforce local ordinances. see http://www.mcso.org/include/pr_pdf/cc.pdf. 82 immigration & nationality act, § 287 (g), illegal immigration reform & immigrant responsibility act of 1996, codified at 8 u.s.c. § 1357(g) (2006). 83 t of homeland security office of inspector general, the performance of 287(g) agreements, mar. 2010, http://www.dhs.gov/ http://www.mcso.org/index.php?a=getmodule&mn=posse http://www.mcso.org/index.php?a=getmodule&mn=posse http://www.mcso.org/include/pr_pdf/cc.pdf http://web2.westlaw.com/find/default.wl?referencepositiontype=t&docname=8uscas1357&rp=%2ffind%2fdefault.wl&sv=split&rs=wlw11.01&db=1000546&tf=-1&findtype=l&fn=_top&mt=westlaw&vr=2.0&referenceposition=sp%3b16f4000091d86&pbc=4ff3a646&tc=-1&ordoc=2018518752 http://web2.westlaw.com/find/default.wl?referencepositiontype=t&docname=8uscas1357&rp=%2ffind%2fdefault.wl&sv=split&rs=wlw11.01&db=1000546&tf=-1&findtype=l&fn=_top&mt=westlaw&vr=2.0&referenceposition=sp%3b16f4000091d86&pbc=4ff3a646&tc=-1&ordoc=2018518752 http://www.dhs.gov/xoig/assets/mgmtrpts/oig_10-63_mar10.pdf 2012 columbia journal of race and law 182 moreover, the march 2011 report of the inter-american commission on human rights recommended the elimination of authorities are unable to properly monitor to prevent and combat the use of racial profiling and the negative effects on security and 84 the department of justice (doj) found reasonable cause to believe that the maricopa county sheriff s office (mcso) engages in unconstitutional racial profiling and unlawful stops, detentions, and arrests of latinos;; and unlawfully retaliates against individuals who c s policies or practices. these actions violate the violent crime control and law enforcement act of 1994, and title vi of the civil rights act of 1964, according to doj.85 iii. s.b. 1070 and human rights: legalized racism violates universally recognized human rights international human rights bodies are also concerned about the pernicious effects of s.b. 1070. in its report, the inter-american to refrain from passing laws that use criminal offenses to criminalize immigration, and from developing administrative or other practices that violate the fundamental principle of nondiscrimination and the 86 the commission [d] the need to find appropriate ways to amend the law recently enacted in xoig/assets/mgmtrpts/oig_10-63_mar10.pdf. in 2009, a coalition of 522 civil rights organizations sent a letter to president obama urging the immediate termination of the 287(g) program due to concerns about racial profiling and other civil rights abuses. letter from marielena hincapie, exec. 2009), available at http://salsa.democracyinaction.org/o/371/images/letter_ to_president_20090825133229.pdf. 84 inter-american commission on human rights, report on immigration in the united states: detention and due process, para. 427, mar. 17, 2011, available at http://cidh.org/countryrep/usimmigration/chap.v.htm. 85 see thomas e. perez, ass justice, letter to bill montgomery, cnty. attorney, maricopa cnty., http:// www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf;; see also melendres v. arpaio, 598 f. supp. 2d 1025 (d. ariz. 2009). 86 inter-american commission on human rights, supra note 84, at para. 425. http://salsa.democracyinaction.org/o/371/images/letter_to_president_20090825133229.pdf http://salsa.democracyinaction.org/o/371/images/letter_to_president_20090825133229.pdf http://cidh.org/countryrep/usimmigration/chap.v.htm http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf 183 racial profiling legalized in arizona vol. 1:2 arizona to adapt it to international human rights standards for the 87 when the united states ratifies a treaty, it becomes part of u.s. law under the supremacy clause of the constitution.88 the united states has ratified both the international convention on the elimination of all forms of racial discrimination (cerd) and the international covenant on civil and political rights (iccpr). cerd defines racial discr distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life 89 these fundamental rights extend to undocumented persons. when the united states ratified the iccpr, it agreed to undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status 90 the human rights committee, which administers the the rights set forth in the covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness. thus, the general rule is that each one of the rights of the covenant must be guaranteed without discrimination between citizens and aliens. 91 87 id. 88 u.s. const. art vi, § 2. 89 660 u.n.t.s. 195, art. 1.1, entered into force jan. 4, 1969 (emphasis added). 90 g.a. res. 2200a (xxi), 21 u.n. gaor supp. (no. 16) at 52, u.n. doc. a/6316 (1966), 999 u.n.t.s. 171, art. 2.1, entered into force march 23, 1976 (emphasis added). 91 general comment no. 15: the position of aliens under the covenant, 04/11/1986, available at http://www.unhchr.ch/tbs/doc.nsf/%28 symbol%29/bc561aa81bc5d86ec12563ed004aaa1b?opendocument (emphasis added). 2012 columbia journal of race and law 184 iv. immigration enforcement during the obama administration what is the current national policy on immigration? isabel garcia, co-chair of the coalition of human rights in tucson, told democracy now! that there have been more deportations during obama presidency than in any other administration.92 ms. garcia stated, flawed concept that migration is somehow a law enforcement or national security issue. and it is not. it is an economic, social, political ms. garcia said that nafta has displaced millions of workers in mexico who flood into the united states.93 policy is undergoing changes, however. on june 17, 2011, ice on the exercise of prosecutorial discretion to ensure that the agen 94 the memo lists the following icular care and veterans and members of the armed forces;; long-time lawful permanent residents;; minors and elderly individuals;; individuals present in the united states since childhood;; pregnant or nursing women;; victims of domestic violence, trafficking or other serious crimes;; individuals who suffer from a serious mental or physical disability;; and individuals with serious health concerns.95 92 legal defender isabel garcia: arizona bill forcing officers to determine immigration status marks all-out assault on latino communities, democracy now! apr. 16, 2010, http://www.democracynow.org/ 2010/4/16/az. 93 id. 94 john morton, director, u.s. immigration & customs enforcement, memorandum, exercising prosecutorial discretion consistent with the civil immigration enforcement priorities of the agency for the apprehension, detention, and removal of aliens, june 17, 2011, www.ice/gov/doclib/secue-communities/pdf/prosecutorial-discretion-memo. pdf. 95 id. http://www.democracynow.org/2010/4/16/az http://www.democracynow.org/2010/4/16/az http://www.ice/gov/doclib/secue-communities/pdf/prosecutorial-discretion-memo.pdf http://www.ice/gov/doclib/secue-communities/pdf/prosecutorial-discretion-memo.pdf 185 racial profiling legalized in arizona vol. 1:2 apparently, ice is creating a presumption that individuals who fit these categories should not be high priorities for deportation. this is a constructive step that should guide future immigration reform. the new policy, however, has been enforced inconsistently.96 however, the obama administration convinced the supreme court to review a ninth circuit ruling that immigrants who entered the united states when they were children could stay if their parents became lawful permanent residents of the united states.97 solicitor general donald b. verrilli, jr. wrote in one brief that the ninth circuit 98 there is promising news from california, however. on october 9, 2011, governor into law.99 it will allow undocumented immigrants to obtain financial aid and fee waivers if they are accepted by california state universities after attending california secondary schools, demonstrate financial need, and apply to legalize their immigration status.100 v. conclusion instead of gratitude for the back-breaking work migrant laborers contribute to our society, there is an increasingly virulent strain of racism that leads to the targeting of non-citizens. republican lawmakers are joining together to oppose federal immigra where each state is free to enact its own racist law.101 96 see american immigration lawyer s association & american immigration council, aila-aic survey reveals ice officials sporadic exercise of prosecutorial discretion, nov. 9, 2011, http://www.aila.org/content/default.aspx?docid=37614 overwhelming conclusion is that most ice offices have not changed their practices .   97 petition for writ of certiorari, holder v. gutierrez, no. 10-1542, 2011 wl 2533820 (s. ct. june 23, 2011);; petition for writ of certiorari, holder v. sawyers, no. 10-1543, 2011 wl 2533821 (s. ct. june 23, 2011). 98 petition for writ of certiorari, holder v. gutierrez, no. 10-1542, 2011 wl 2533820. 99 california dream act, 2011 cal. stat. ch. 93. 100 id. 101 see supra text accompanying notes 54-72. http://www.aila.org/content/default.aspx?docid=37614 2012 columbia journal of race and law 186 let us join the voices of compassion and oppose the meanspirited actions that aim to legalize racial profiling and scapegoat immigrants. laws like s.b. 1070 demean us all. microsoft word cjrl narain f18.docx quebec’s bill 62: legislating difference vrinda narain0f * on october 18, 2017, bill 62, whose full english title is “an act to foster adherence to state religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies,” came into force in the canadian province of quebec. in effect, bill 62 prohibits niqab-wearing women from giving or receiving public services. it reflects anxiety about religious minorities’ illiberal practices and discomfort with the accommodation of religious difference—the “hypervisibility” of islamic differences in particular. bill 62 constructs the multiculturalism and reasonable accommodation debates in a way that erases race and replaces it with culture and religion. in turn, the politics of reasonable accommodation in quebec conceptualize racialized minorities as threats to canadian and quebecois national identity and casts them aside as illegitimate citizens unless they assimilate. state multiculturalism and the reasonable accommodation discourse reinforce the racial status quo by setting the terms of the debate and the limits of tolerance—the “epistemic conditions” that dissuade a close scrutiny of the state’s management of diversity. this article offers a close analysis of bill 62 by following a framework that is built on four pillars: (1) interrogating secularism and state neutrality; (2) foregrounding structural difference to achieve systemic equality; (3) theorizing reasonable accommodation; and (4) combatting persisting colonial and orientalist tropes of racialized muslim women. i. introduction ............................................................... 54 ii. context ........................................................................ 58 * vrinda narain, associate professor, faculty of law, mcgill university, research associate, international studies group, university of the free state, south africa. i gratefully acknowledge the financial support of the charles d. gonthier research fellowship, the canadian institute for the administration of justice, and the randal barker fund, faculty of law, mcgill university. i thank megan lindy, latetia baya yantren, and deborah guterman for their excellent research assistance. 54 columbia journal of race and law [vol. 9:1 a. historical and political context .............................. 59 b. legal context ........................................................... 68 iii. theoretical framework ........................................... 71 a. interrogating secularism and state neutrality ..... 72 b. foregrounding structural difference to achieve systemic equality .................................................... 75 c. theorizing reasonable accommodation .................. 77 d. combatting persisting colonial and orientalist tropes of racialized muslim women ...................... 80 iv. bill 62 ........................................................................... 83 a. purpose, scope, and provisions of bill 62 ............... 83 b. analyzing bill 62 ..................................................... 86 1. interrogating secularism and state neutrality ........................................................... 86 2. foregrounding structural difference to achieve systemic equality .............................................. 87 3. theorizing reasonable accommodation ............ 89 4. combatting colonial and orientalist tropes of racialized muslim women ................................ 90 c. the future of religious discrimination in canada ..................................................................... 91 v. conclusion .................................................................. 92 i. introduction on october 18, 2017, the quebec legislature enacted bill 62, or “an act to foster adherence to state religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies,” with sixty-six votes in favor and fifty-one votes against the controversial provincial legislation.1 bill 62, which effectively prohibits niqab-wearing women from giving or receiving public services, is the result of a history of political debates in the province of quebec starting in the early 2000’s concerning reasonable accommodation. borrowing from human rights legislation in the employment discrimination context, the 1 an act to foster adherence to state religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies, s.q. 2017, c 19 (can.). no. 2:53] quebec’s bill 62 55 doctrine of reasonable accommodation sets out the legal duty of employers to accommodate the religious practices of their employees.2 since 1985, canadian jurisprudence has quickly extended reasonable accommodation beyond the employment context to the balancing of religious freedom with other rights, notably equality rights.3 these claims invariably converge at the intersection of religious freedom, equality, and minority rights.4 in its proportionality analysis under section 1 of the canadian charter of rights and freedoms, the supreme court of canada asserted that the state has the duty to accommodate religious difference up to the point of undue hardship.5 the supreme court of canada’s decisions regarding religious freedom and reasonable accommodation are inevitably embedded in the context of public debate about religious difference and the limits of toleration. reasonable accommodation and its accompanying discourse represent the framework within which the state accommodates both minority difference and efforts to establish the extent to which the state ought to permit minority cultural and religious practices in the public sphere. reflecting the public discourse regarding the anxiety about religious minorities’ illiberal practices and the discomfort with the accommodation of religious difference, particularly the “hypervisibility” of islamic differences,6 successive provincial governments have tabled bills regulating the presence of religion in public spaces. these legislative efforts punctuate provincial politics and provide a useful prism for analyzing legal institutions’ role in responding to popular anxieties and shaping the perception of difference. 2 lori g. beaman, introduction: exploring reasonable accommodation, in reasonable accommodation 1, 2 (lori g. beaman ed., 2012). 3 sujit choudhry, rights adjudication in a plurinational state: the supreme court of canada, freedom of religion, and the politics of reasonable accommodation, 50 osgoode hall l.j. 575, 585–86 (2013). 4 id. 5 see multani v. commission scolaire marguerite-bourgeoys, 2006 scc 6, [2006] 1 s.c.r. 256 (can.); see also lorne sossin, god at work: religion in the workplace and the limits of pluralism in canada, 30 comp. lab. l. & pol'y j. 485, 491 (2009). 6 see amélie barras, exploring the intricacies and dissonances of religious governance: the case of quebec and the discourse of request, 4 critical res. on religion 57, 59 (2016). 56 columbia journal of race and law [vol. 9:1 bill 62 intervenes in the evolution of canadian multiculturalism and reasonable accommodation at a crucial time. hate crimes against muslims are on the rise, marked most notably by the quebec city mosque shooting of 2017.7 contemporary public and political discourse focuses on the “crisis of multiculturalism”: the notion that multiculturalism has failed to foster inclusion and integration of minority groups within liberal democracies.8 some go so far as to announce the “death” of multiculturalism.9 although scholars note that canada has not experienced the same rejection of multiculturalism as some european countries such as denmark or germany, and the majority of canadians appear to support multiculturalism as official policy, support for multiculturalism in canada has been primarily for national minorities.10 there has not been similar enthusiasm with respect to immigrant minorities, particularly in quebec.11 as distinguished sociologist and professor at the university of montreal sirma bilge notes: in recent years, the belief that multiculturalism has been a dismal debacle in europe and that canada will inevitably follow a similar path has gained dominance in canadian media discourses. despite research evidence showing stable public support for multiculturalism in canada, several analysts, convinced of the fate awaiting canadian multiculturalism, diligently 7 see amy minsky, hate crimes against muslims in canada increase 253% over four years, global news (june 13, 2017), https://globalnews.ca /news/3523535/hate-crimes-canada-muslim/ [https://perma.cc/pcw7-wng6]. 8 see, e.g., david miller, the changing face of multiculturalism in europe, globe & mail (apr. 18, 2016), https://www.theglobeandmail .com/opinion/the-changing-face-of-multiculturalism-in-europe/article29647990/ [https://perma.cc/3f6x-vgjk]; john paul tasker, maxime bernier criticizes liberals for 'extreme multiculturalism', cbc news (aug. 13, 2018), https: //www.cbc.ca/amp/1.4783325 [https://perma.cc/ze6c-d34b]. 9 miller, supra note 8. 10 see, e.g., will kymlicka, the new debate on minority rights, in multiculturalism and political theory 25, 25 (anthony simon laden & david owen eds., 2007); ayelet shachar, squaring the circle of multiculturalism: religious freedom and gender equality in canada, 10 l. & ethics hum. rts. 31 (2016). 11 keith banting & will kymlicka, canadian multiculturalism: global anxieties and local debates, 23 brit. j. canadian stud. 43 (2010); shachar, supra note 10, at 34–35. no. 2:53] quebec’s bill 62 57 track the signs of this imminent collapse— signs among which the québécois reasonable accommodation (ra) debate holds a privileged place, deemed “the first crack in the wall, the first real sign of a european-style retreat from multiculturalism, and a harbinger of what is likely to happen in the rest of canada.”12 within this changing context, the focus of this article is bill 62’s intervention in these debates, its legal implications, and its theoretical underpinnings. this article argues that bill 62 reflects a populist trend in quebecois politics. for ernesto laclau, populism creates “empty signifiers” that symbolically order the realm of politics, so that many divergent groups with separate interests can identify with slogans and symbols that represent broad and vague values such as “justice” or “equality.”13 bill 62 is premised on understandings of multiculturalism and reasonable accommodation that erase race and replace it with culture and religion. the politics of reasonable accommodation in quebec arguably target racialized minorities with language of culture and religion, which will have the greatest impact on muslim women.14 analysis of bill 62 illuminates this. racialized minorities, particularly muslim women, are constructed as threats to canadian and quebecois national identity. national identity becomes an “empty signifier” with which a number of different social groups identify. racialized minorities are produced as an “other” against canadian and quebecois mainstream society, and they are cast aside as illegitimate citizens unless they assimilate.15 state multiculturalism and the reasonable accommodation discourse reinforce 12 sirma bilge, reading the racial subtext of the québécois accommodation controversy: an analytics of racialized governmentality, 40 politikon 157, 157 (2013) (footnotes omitted). 13 ernesto laclau, populism: what’s in a name?, in populism and the mirror of democracy 32 (francisco panizza ed., 2005), reprinted in ernesto laclau: post-marxism, populism and critique 152, 157 (david howarth ed., 2015). 14 see generally gada mahrouse, ‘reasonable accommodation’ in québec: the limits of participation and dialogue, 52 race & class 85 (2010). 15 see generally sherene razack, the ‘sharia law debate’ in ontario: the modernity/premodernity distinction in legal efforts to protect women from culture, 15 feminist legal stud. 3 (2007). 58 columbia journal of race and law [vol. 9:1 the racial status quo by setting the terms of the debate and the limits of tolerance—the “epistemic conditions” that dissuade a close scrutiny of the state’s management of diversity.16 the purpose of this article is to offer a close analysis of bill 62 that “counter[s] the limitations of liberal solutions offered to systemic oppression.”17 this analysis follows a framework built on four pillars: (1) interrogating secularism and state neutrality; (2) foregrounding structural difference to achieve systemic equality; (3) theorizing reasonable accommodation; and (4) combatting persisting colonial and orientalist tropes of racialized muslim women. part ii contextualizes bill 62 within the history of legislative efforts and jurisprudential interventions from which it emerges, paying particular attention to the debates in quebec. part iii sets out the theoretical framework used to analyze bill 62. finally, part iv provides a close reading of the legislative text and a substantive analysis as per the theoretical framework outlined in part iii. ii. context the context of bill 62 is divided into two parts. first, bill 62 is placed within its historical and political context by tracing the lineage of various legislative initiatives in quebec and canada, including bill 94, bill 60 (the quebec charter of values), and the zero tolerance for barbaric cultural practices act (“bpa”).18 next, relevant jurisprudence from the supreme court of canada is analyzed to provide the legal context of the bill’s main claims about religious neutrality, religious freedom, and reasonable accommodation. the aim in that section is not only to address the bill’s constitutionality, but also to set out the legal context in which the bill makes its intervention. 16 bilge, supra note 12, at 162. 17 id. 18 bill 94, an act to establish guidelines governing accommodation requests within the administration and certain institutions, 2010, 1st session, 39th legislature, québec, 2010 (can.); bill 60, charter affirming the values of state secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests, 2013, 1st session, 40th legislature, québec, 2013 (can.); zero tolerance for barbaric cultural practices act, s.c. 2015, c 29 (can.). no. 2:53] quebec’s bill 62 59 a. historical and political context as contemporary canadian society has grappled with increasing ethno-cultural diversity, the legal recognition of minority rights through an official policy of multiculturalism has been controversial. there is tension between women’s equal rights on the one hand and multiculturalism and religious freedom on the other; minorities seek to have their religious needs accommodated, often in the form of exemptions from the application of general rules.19 legislative initiatives, public policy, political rhetoric, and public discussions increasingly tie the multiculturalism crisis to gender equality.20 these debates are often framed in terms of the limits of tolerance and the extent to which majority culture can accommodate difference.21 the politics of recognition emphasize practices such as veiling and polygamy as feminism is pitted against multiculturalism.22 reasonable accommodation discourse tends to portray racialized religious minority communities as backward while constructing majority culture as the norm.23 this obscures issues of gendered structural inequality. canada’s religious landscape is constantly transforming because of a steady increase in the number of individuals who identify as members of minority religious groups.24 to some scholars, canada continues to appear as a multicultur 19 see vrinda narain, critical multiculturalism, in feminist constitutionalism: global perspectives 377 (beverley baines et al. eds., 2012). 20 see mahrouse, supra note 14, at 88. 21 lori g. beaman, “it was all slightly unreal”: what’s wrong with tolerance and accommodation in the adjudication of religious freedom?, 23 canadian j. women & l. 442, 447–51 (2011). 22 see leti volpp, feminism versus multiculturalism, 101 colum. l. rev. 1181, 1181 (2001); iris marion young, structural injustice and the politics of difference, in multiculturalism and political theory 60, 87 (anthony simon laden & david owen eds., 2007). 23 beaman, supra note 21, at 442, 447; see also vrinda narain, taking “culture” out of multiculturalism, 26 canadian j. women & l. 116 (2014). 24 lori g. beaman, religious diversity in the public sphere: the canadian case, 8 religions 259, 260 (2017). 60 columbia journal of race and law [vol. 9:1 alist haven.25 while other western nation-states have increasingly embraced far-right parties and policies, the current federal liberal government has firmly asserted its support for multiculturalism and detailed policies sympathetic to immigration, including a promise to settle a large number of syrian refugees.26 in contrast, the conservative party under former prime minister stephen harper focused on emphasizing “canadian values,” constructing a narrative of the ideal citizen that linked citizenship with integration rather than accommodation of minority difference.27 indeed, the conservative government focused on economic immigration and introduced reform to reduce the number of refugee claimants.28 the government tightened citizenship rules, making it harder to obtain citizenship while also making it easier to be stripped of citizenship on grounds of state security or terrorism, which reflects the global impact of 9/11.29 significantly, the conservatives under stephen harper opposed “symbolic” identity markers such as hijabs, niqabs, and kippahs.30 in september 2018, maxime bernier, former conservative party member of parliament, announced the formation of a new party—the people’s party of canada.31 he criticized prime minister justin trudeau’s stance on multiculturalism, asserting that trudeau’s “extreme multiculturalism and cult of diversity . . . will divide us into little tribes that have less and less in common, apart from their 25 see, e.g., cas mudde, putting canada in a comparative context: still the multiculturalist unicorn, 22 nationalism & ethnic pol. 351 (2016). 26 id. at 352; kalyani thurairajah, the jagged edges of multiculturalism in canada and the suspect canadian, 12 j. multicultural discourses 134, 135 (2017). 27 shachar, supra note 10, at 55–57. 28 id. at 58. 29 id. at 32–34. 30 kathryn may & ian macleod, bureaucracy baffled by harper's niqab stance, ottawa citizen (oct. 7, 2015), https://ottawacitizen.com/ news/politics/harper-doubles-down-on-possible-niqab-ban-in-public-service [http://perma.cc/dvw5-d2kw]. 31 rachel aiello, maxime bernier launches people's party of canada, ctv news (sept. 14, 2018), https://www.ctvnews.ca/politics/maxime-bernierlaunches-people-s-party-of-canada-1.4094059 [https://perma.cc/3bxg-e4nl]. no. 2:53] quebec’s bill 62 61 dependence on government in ottawa.”32 illustrating the construction of immigrants as a threat to democracy and stability, he went on to write, “having people live among us who reject basic western values such as freedom, equality, tolerance and openness doesn’t make us strong. people who refuse to integrate into our society and want to live apart in their ghetto don’t make our society strong.”33 bernier has stated that “the ‘old parties’ are not speaking for canadians, and [has] decried political correctness.”34 he has also said that he will reconsider current immigration levels and, significantly, that he is committed to “making sure that newcomers share canadian values . . . including respecting diversity, the rule of law, and the equality of men and women.”35 given the centrality of multiculturalism to its national identity, canada provides an interesting lens through which issues of inclusion and difference can be viewed. canada’s federal government officially adopted multiculturalism as formal policy in the early 1970’s, and this was institutionalized in section 27 of the canadian charter of rights and freedoms (“the charter” or “charter”)36 and in the canadian multiculturalism act of 1988.37 section 27 of the charter provides that the “charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of canadians.”38 notably, through section 28, the canadian charter has embraced gender equality together with multiculturalism as an interpretive provision of canadian constitutionalism. section 28 states, “notwithstanding anything in this charter, the rights and 32 martin patriquin, fears multiculturalism will doom canada are unwarranted, montreal gazette (aug. 15, 2018), https://montrealgazette .com/opinion/columnists/martin-patriquin-fears-multiculturalism-will-doomcanada-are-unwarranted [https://perma.cc/f9bg-9wdz]. 33 id. 34 aiello, supra note 31. 35 id. 36 canadian charter of rights and freedoms, part i of the constitution act, 1982, being schedule b to the canada act, 1982, c 11 (u.k.) [hereinafter charter]. 37 canadian multiculturalism act, r.s.c. 1985, c 24. 38 charter, supra note 36, § 27. 62 columbia journal of race and law [vol. 9:1 freedoms referred to in it are guaranteed equally to male and female persons.”39 as public policy, canadian multiculturalism is generally understood as a hallmark of canadian national identity. nonetheless, some perceive quebec as having spurned english canada’s turn towards multiculturalism by perceiving multiculturalism as “a subversion of the recognition of the importance of the french as a founding people.”40 this has led some quebec scholars to instead propound interculturalism, a concept that seeks to facilitate integration of ethnic minorities while preserving the hegemony of the majority culture.41 quebec’s approach to legislation may differ from common law provinces because it is the only civil law province in canada. in the civil law tradition, there is an impetus to make law and to draft bills as a response to perceived social ills. france follows a similar approach by drafting laws as a response to social or “cultural” problems. laws on the veil, for example, have been debated since the late 1980’s and were finally enacted in 2004 as the loi sur les signes religieux dans les écoles publiques françaises (law on religious symbols in french public schools).42 france banned the niqab in 2010 with the loi du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public (law of october 11, 2010 prohibiting face covering in the public space).43 the 2010 law, like bill 62, is an example of viciously colorblind legislation; while it does not explicitly name a religious or ethnic 39 id. § 28. 40 beaman, supra note 24, at 262. 41 id. for a discussion of interculturalism in québec, see daniel weinstock, interculturalism and multiculturalism in canada and quebec: situating the debate, in liberal multiculturalism and the fair terms of integration 91 (peter balint & sophie guérard de latour eds., 2013). 42 loi 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics [law 2004-228 of march 15, 2004, framing the law on religious symbols in french public schools], journal officiel de la république française [j.o.] [official gazette of france], mar. 7, 2004, p. 5190. 43 loi 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l'espace public [law 2010-1192 of october 11, 2010 prohibiting face covering in the public space], journal officiel de la république française [j.o.] [official gazette of france], oct. 11, 2010, p. 18344. no. 2:53] quebec’s bill 62 63 community and does not mention the niqab explicitly, its provisions target muslim women.44 bill 62 has galvanized a number of responses. constitutional scholar emmett mcfarlane notes that bill 62 “is neither neutral nor constitutional.”45 he asserts that, “it is impossible to reconcile this law as anything other than the targeting of a minority group, a slightly narrower spin on the now perennial quebec debate over the wearing of (noncatholic) religious identifiers.”46 according to then justice minister vallée, however, the law is meant to safeguard security and identification and to ensure that people can communicate.47 nonetheless, this has not quelled the belief that bill 62 clearly targets muslim women.48 the focus on cultural difference in canadian multiculturalism serves to conceal structural inequalities, including racial inequality.49 recent scholarship, for example, has emphasized multiculturalism’s exclusionary discursive effects and the limits of reasonable accommodation as a discourse and practice of multiculturalism.50 in quebec, the debate over reasonable accommodation, the primary framework by which religious diversity is managed in the public sphere, has been particularly heated since the supreme court of canada’s 2006 decision in multani v. commission scolaire marguerite-bourgeoys.51 indeed, the rhetoric of reasonable 44 morgan lowrie, bill 62: niqabi women fear quebec's religious neutrality law, huffington post (oct. 22, 2017), https://www.huffington post.ca/2017/10/22/bill-62-niqabi-women-fear-quebecs-religious-neutralitylaw_a_23251719/ [https://perma.cc/5v2t-hebj]. 45 emmett macfarlane, quebec law banning face coverings is neither neutral nor constitutional, cbc (oct. 19, 2017), https://www.cbc .ca/news/opinion/quebec-neutrality-law-1.4360942 [https://perma.cc/wc3u2ld6]. 46 id. 47 id. 48 see, e.g., lowrie, supra note 44 (“[m]any say it unfairly targets muslim women who wear religious face coverings.”). 49 it also serves to conceal the country’s settler-colonial history. see barbara perry, disrupting the mantra of multiculturalism: hate crime in canada, 59 am. behav. scientist 1637, 1640 (2015); thurairajah, supra note 26, at 137. 50 see, e.g., barras, supra note 6; beaman, supra note 24; perry, supra note 49. 51 multani v. commission scolaire marguerite-bourgeoys, 2006 scc 6, paras. 71, 78 (can.). 64 columbia journal of race and law [vol. 9:1 accommodation and its migration from the courts to the arena of public discourse can be traced to multani and the bouchardtaylor commission that followed.52 here, the rhetoric of reasonable accommodation often functions as code for “too much accommodation.”53 the quebec provincial government established the bouchard-taylor commission in february 2007. the commission was headed by two professors, gerard bouchard and charles taylor. the mandate of the commission was to a) take stock of accommodation practices in québec; b) analyze the attendant issues bearing in mind the experience of other societies; c) conduct an extensive consultation on this topic; and d) formulate recommendations to the government to ensure that accommodation practices conform to québec’s values as a pluralistic, democratic, egalitarian society.54 bouchard and taylor’s report for the commission concluded that the perception of minorities as threatening quebec identity was unfounded.55 nevertheless, some criticized the report for perpetuating the very racial hierarchies and exclusions it sought to overcome.56 through their process of public consultations, bouchard and taylor inadvertently served to reify and validate anti-immigrant, anti-muslim discourse.57 contrary to political intentions, the commission’s report did not settle the issue of reasonable accommodation, 52 barras, supra note 6, at 58; beaman, supra note 24, at 262; see also gérard bouchard & charles taylor, building the future: a time for reconciliation (2008) [hereinafter bouchard-taylor commission report]. 53 beaman, supra note 24, at 263. 54 bouchard-taylor commission report, supra note 52, at 17. 55 id. at 186 (arguing that french-canadian quebecers’ beliefs that immigrants are devout believers whose “culture is thus sustained by a wealth of symbols” is unfounded and that the “identity-related anxiety” of the former has “targeted immigrants”). 56 mahrouse, supra note 14, at 88. 57 id. at 89. no. 2:53] quebec’s bill 62 65 which returned to the public eye with bill 94 in 201058 and bill 60, also known as the charter of values, in 2013. the now-defunct bill 60 proposed an amendment to the quebec charter of human rights and freedoms, banned all “conspicuous” religious symbols for state personnel, and required receivers of public services to show their faces.59 it was received with controversy and criticism and did not survive the parti québécois’s removal from power with the election of the quebec liberal party in 2014.60 liberal leader philippe couillard opposed the charter of values in 2013, promising nonetheless to pass a “less constraining version” of bill 60.61 bill 62 was the liberal party’s response to the parti québécois’s bill 60.62 by banning the niqab, which covers the face of the woman who wears it, rather than all religious garments, bill 62 represents an answer to the liberal government’s electoral promises of a “less constraining” charter of values.63 bill 62 illustrates the persistence of notions of state neutrality and secularism and the focus on regulating minority women in political rhetoric. it demonstrates the 58 bill 94, an act to establish guidelines governing accommodation requests within the administration and certain institutions, 2010, 1st session, 39th legislature, québec, 2010 (can.). bill 94 was precipitated by the controversy in february 2009 concerning a young woman enrolled in a french language course who refused to remove her niqab. her continued refusal, despite attempts to accommodate her, eventually led to her expulsion from the course. bill 94’s purpose was “to establish guidelines governing accommodation requests within the administration and certain institutions.” it would have effectively prevented niqabi women from receiving or delivering services from a range of public institutions when communication, identification, or security was at issue. this restriction would have covered nearly every public institution, including childcare centers, school boards, and public health facilities. 59 bill 60, charter affirming the values of state secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests, 2013, 1st session, 40th legislature, québec, 2013 (can.). 60 maxime dagenais, québec values charter, canadian encyclopedia (nov. 16, 2017), https://www.thecanadianencyclopedia.ca/en/ar ticle/the-charter-of-quebec-values [https://perma.cc/9jew-ku3n]. 61 patrick bellerose, promesses électorales: les 12 travaux de philippe couillard, huffington post que. (apr. 9, 2014), https://quebec.huffington post.ca/2014/04/09/promesses-electorales-philippe-couillard-plq_n_5120400 .html [https://perma.cc/72hg-k5zl]. 62 id. 63 dagenais, supra note 60. 66 columbia journal of race and law [vol. 9:1 preoccupation with the limits of tolerance and the accommodation of religious difference. the question of what ought to be considered reasonable accommodation and the reasonable constraints that can be imposed on religious women, particularly women of color, are theorized in part iii. a number of civil society organizations, such as the canadian civil liberties association (ccla) and the women’s legal education and action fund (leaf) have opposed bill 62. leaf asserted that this bill is divisive, discriminatory, and will serve to further entrench inequality along gender, race, and ethnic lines. the bill intentionally excludes niqab-wearing women from public employment and denies them access to fundamentally important social services such as healthcare and childcare. this will exacerbate the inequality already experienced by muslim women due to violence, racism, sexism, islamophobia, and xenophobia.64 ccla also “firmly opposes bill 62,” claiming that many of the legislation’s provisions “clearly violate guarantees set out in both the québec charter of human rights and freedoms and the canadian charter of rights and freedoms.”65 bill 62 is currently facing a constitutional challenge. the national council of canadian muslims (nccm) and the ccla launched a legal attack on section 10 of the bill, the article that prohibits receiving or giving public services with one’s face covered.66 the action was brought on behalf of marie-michelle lacoste, a convert to islam, and includes testimony from fatima ahmad, a mcgill university student. justice babak heard arguments in mid-november 2017. no judgment has been rendered on the merits, but a temporary 64 leaf opposes the québec government’s “religious neutrality” bill, bill 62, leaf, http://www.leaf.ca/leaf-opposes-the-quebec-governmentsreligious-neutrality-bill-bill-62/ [https://perma.cc/f2au-yxll]. 65 quebec bill 62 infringes on freedom of religion and equality, canadian civ. liberties ass’n (oct. 17, 2017), http://ccla.org/quebec-bill-62infringes-on-freedom-of-religion/ [https://perma.cc/tfv2-s3r3]. 66 ccla and nccm launch legal challenge against quebec’s bill 62, canadian civ. liberties ass’n (nov. 7, 2017), https://ccla.org/cclanccm-launch-legal-challenge-quebecs-bill-62/ [https://perma.cc/h6hd-6z5h]. no. 2:53] quebec’s bill 62 67 stay on section 10’s application was granted on december 1, 2017, pending the enactment of guidelines for bill 62’s application and a method for requesting accommodation.67 these guidelines identified six criteria for granting a request for accommodation and explained that accommodation will be given on a case-by-case basis.68 the suspension of section 10’s application was set to end on july 1, 2018, when the guidelines were officially enacted as regulation, bringing bill 62 into conformity with justice babak barin’s decision. nonetheless, the nccm and the ccla still hold that these guidelines are not enough to immunize bill 62 from a charter violation, claiming that they are “inherently problematic and do nothing to save a law that is fundamentally unconstitutional.”69 indeed, in a decision rendered on june 28, 67 national council of canadian muslims (nccm) v. attorney general of quebec, 2017 qccs 5459, [2017] q.j. no. 16952 (can. que.) (judgment on application for stay); judge grants stay of part of quebec's controversial religious neutrality law, cbc (dec. 1, 2017), https://www.cbc .ca/news/canada/montreal/judge-grants-stay-of-bill-62-1.4429199 [https://per ma.cc/bl5s-j3r3]. 68 marilla steuter-martin, bill 62: quebec releases criteria for requesting, granting religious accommodation, cbc (may 9, 2018), https:// www.cbc.ca/news/canada/montreal/quebec-bill-62-guidelines-accommodations1.4655620 [https://perma.cc/6u7m-6ux9]. the government issued the following guidelines for accommodation under bill 62: 1. the request must prove that the difference in treatment is impairing his or her rights. 2. the request must be serious and based on sincere belief. 3. the accommodation must be in line with the principle of equality of all people. therefore, it must not result in the discrimination of another group. 4. the accommodation must be in line with the principle of the state's religious neutrality. 5. the accommodation is reasonable. in other words, it does not cause undue hardship on others or affect the quality of service or public health of others. this also factors in the cost of any accommodation. 6. the person making the request is co-operating in seeking a solution, including making concessions. failure to cooperate may result in the request being denied. id. 69 bill 62 (niqab ban) guidelines cannot save an unconstitutional law, canadian civ. liberties ass’n (may 11, 2018), http://ccla.org/bill-62 68 columbia journal of race and law [vol. 9:1 2018, quebec superior court justice marc-andré blanchard criticized bill 62 and further extended the suspension of section 10. the court was clear that the process of accommodation provided for under bill 62, even with the guidelines, stood on shaky constitutional ground. according to justice blanchard, “[t]he court can only be highly dubious as to the constitutional validity of a legal process that requires a citizen to obtain, in advance, a permission from a state representative to go about her daily life.”70 it seems that repeated attempts to use reasonable accommodation as a way to maintain the status quo—by funding a commission or drafting a bill to that effect—are destined to accomplish the opposite and to be followed by debate, controversy, and legal challenge. reasonable accommodation is a jurisprudential tool rather than a definable notion. its strength, as well as its weakness, stems from its adaptability and its ambiguity. as we will see in the analysis of bill 62, reasonable accommodation often defies definition, resists codification, and unsettles legislative efforts. b. legal context analysis of certain cases provides important insight into the broader area of religious freedom, accommodation of difference, and minority rights. this jurisprudence situates bill 62 within the federal understanding of the role of the state in mediating religion and religious freedom claims. it also draws the legal horizon of the theoretical framework described in part iii by giving concrete examples of the limits of legal intervention as well as the legal norms which critical scholarship must re-envision in view of the substantive equality of all canadians. the supreme court of canada has accommodated certain objects that are used in religious practice. in syndicat niqab-ban-guidelines-cannot-save-unconstitutional-law/ [https://perma.cc/9ya j-5pjf]. 70 national council of canadian muslims (nccm) v. attorney general of québec, 2018 qccs 2766 (can. que.) (judgment on application for stay); ingrid peritz, superior court judge censures quebec’s facecover law bill 62, globe & mail (june 28, 2018), https://www.theglobeand mail.com/canada/article-superior-court-judge-censures-quebecs-face-coverlaw-bill-62/ [https://perma.cc/dp8v-3rlz]. no. 2:53] quebec’s bill 62 69 northcrest v. amselem, the supreme court of canada specified that the state could not rule on religious dogma and accommodated the construction of a succah, a structure used in the observation of the jewish holiday of sukkot, in contravention of a condo association’s bylaws.71 the reasonable accommodation debate was triggered again with multani. in multani, the supreme court of canada upheld the right of a sikh boy to carry a kirpan72 to school. the court once again invoked the value of multiculturalism to send a powerful message of equality between all religions under the charter.73 in bruker v. marcovitz, the court considered the use of religious freedom to evade secular legal obligations—namely, a husband’s refusal to grant his wife the jewish get (required for divorce) despite an agreement to do so. the bruker court emphasized that canada’s growing diversity had resulted in the judicial recognition of the constitutional value of multiculturalism and respect for difference.74 justice abella explained that while claims to exemptions and accommodation cannot always be privileged and must be balanced against the public interest, deciding what aspects of difference can be accommodated must be a contextual, purposive exercise focused on providing the benefit of the protection of the charter on the claimant.75 in alberta v. hutterian brethren of wilson colony, however, the supreme court of canada signaled a greater deference to secular government objectives in limiting religious freedom, moving away from the understanding of reasonable accommodation as articulated in earlier jurisprudence.76 this 71 syndicat northcrest v. amselem, 2004 scc 47, para. 50 (can.). 72 multani v. commission scolaire marguerite-bourgeoys, 2006 scc 6 (can.). a kirpan is a sikh religious symbol; it is a small metal dagger or sword and is one of the five articles of faith one is obligated to carry at all times in the sikh tradition. 73 id. at paras. 71, 78. 74 bruker v. marcovitz, 2007 scc 54, para. 70 (can.). 75 id. at para. 2. 76 alberta v. hutterian brethren of wilson colony, 2009 scc 37, paras. 66–71 (can.). hutterian brethren involved a challenge to an alberta law requiring driver’s licenses to include a photograph of the driver. members of the hutterian brethren view voluntarily having their photo taken as a violation of their religious beliefs. as a result, they argued that they should be accommodated by instead having a driver’s license stamped with the words “not to be used for identification purposes.” the supreme court of 70 columbia journal of race and law [vol. 9:1 case concerned the infringement of the hutterian brethren’s right to religious freedom by the new regulation in alberta requiring a universal mandatory photograph requirement for all driver’s licenses. members of the hutterian brethren sincerely believe that their religion prohibits them from having their photograph willingly taken and challenged this new regulation on the ground of religious freedom. the majority ruled that although their right to religious freedom was infringed, it was only minimally impaired.77 in its proportionality analysis, the majority upheld the regulation requiring universal mandatory photographs to obtain a driver’s license.78 the complexity of the issues arising at the intersection of gender equality, religious freedom, and minority rights is epitomized by r. v. n.s., a case concerning the right of a muslim woman to wear a niqab while testifying. there, the supreme court of canada displayed tensions in understandings of multiculturalism and accommodation of religious difference.79 the issue of the niqab raised questions of gender equality, religious freedom, secularism, and state neutrality and tested the limits of the accommodation of difference as evidenced by the court’s three separate opinions. the majority in n.s. rejected the claim advanced by the concurrence that to accommodate religion in the courtroom would be to compromise the neutrality of public institutions and reiterated the duty of state institutions to accommodate sincerely held religious beliefs to the point of undue hardship.80 whereas the majority ruled that the right to religious freedom must be balanced, on a case-by-case basis, against countervailing rights such as the accused’s right to a fair trial, the concurring and dissenting opinions reflected the range of perspectives on reasonable accommodation and religious freedom. in dissent, justice abella offered a contextual analysis that centered n.s.—evincing a specific understanding of n.s.’s social location and the context of sexual assault—and concluded that she must be permitted to wear her niqab while testifying. canada disagreed, reasoning that the government interest in reducing identity theft and fraud outweighed the hutterian brethren’s religious freedom claim. 77 id. at para. 62. 78 id. at para. 104. 79 r. v. n.s., 2012 scc 72 (can.). 80 id. at para. 51. no. 2:53] quebec’s bill 62 71 in contrast, the concurring opinion framed the niqab as a threat to core values, reflecting an uncritical notion of multiculturalism and a dogmatic interpretation of state secularism and religious neutrality.81 n.s. may weigh against the constitutionality of bill 62 because the law represents a blanket ban on face coverings irrespective of whether countervailing rights or public policy concerns—such as security, identification, or communication—are at issue. recent jurisprudence on state neutrality and secularism includes loyola high school v. quebec 82 and mouvement laïque québécois v. saguenay.83 in loyola, the supreme court of canada held that a state could not constitutionally require secular instruction in a religious school.84 in saguenay, the court overturned the court of appeal’s finding that “absolute state neutrality is not possible from a constitutional point of view” because it is contrary to the state’s preservation of its history and tradition.85 it cited n.s. to reinforce that public space should be free from “coercion, pressure and judgment on the part of public authorities.”86 it also emphasized that “in addition to its role in promoting diversity and multiculturalism, the state’s duty of religious neutrality is based on a democratic imperative.”87 iii. theoretical framework analysis of bill 62 requires a specific theoretical framework rooted in substantive legal analysis and critical race and post-colonial theory. the following theoretical framework 81 this should be understood in the political context of post-9/11 islamophobia. 82 loyola high school v. quebec (attorney general), 2015 scc 12 (can.). 83 mouvement laïque québécois v. saguenay (city), 2015 scc 16 (can.). 84 loyola, 2015 scc 12, at paras. 80–81. loyola high school, a catholic school, argued that it should be exempt from a secular program that required secular, objective instruction on the basis that this requirement violated the school’s freedom of religion under section 2(a) of the charter. 85 saguenay, 2015 scc 16, at paras. 77–78. in this case, an atheist man argued that prayer at the start of a municipal council’s public meeting violated his freedom of religion under section 2(a) of the charter. 86 id. 87 id. at para. 75. 72 columbia journal of race and law [vol. 9:1 is useful in analyzing bill 62; it contextualizes policies of reasonable accommodation as well as notions of secularism and state neutrality as they relate to racialized minorities. a. interrogating secularism and state neutrality secularism is a political philosophy that aims to create a secular state.88 it is a historically and geographically precise concept that should be understood as contingent and ideological. neutrality, which is rarely included in legislation but is internationally a tenet of jurisprudence, is both ideological and procedural; whatever it means, it is “not a self-defining concept.”89 with respect to religion, state neutrality can mean both equal distance from religion and equal participation in religion.90 despite their differences, secularism and neutrality are distinct but related concepts that are often used interchangeably. though there remains a longstanding question as to whether secularism is indeed neutral,91 the two concepts work together in jurisprudence and legal interpretation as a basis for the adjudication and accommodation of difference. jointly, they have been used to resist reasonable accommodation in religious equality claims and to “justify the regulation of minority women . . . as a universal model of women’s freedom.”92 canadian state neutrality was recently reaffirmed in saguenay. there, the supreme court of canada held that a state’s duty of neutrality was breached when a christian prayer was pronounced before council meetings, because it showed a preference for one religion to the detriment of others 88 rex adhar, is secularism neutral?, 26 ratio juris 404, 405 (2013); see also richard moon, liberty, neutrality, and inclusion: religious freedom under the canadian charter of rights and freedoms, 41 brandeis l.j. 563, 563 (2003). 89 adhar, supra note 88, at 406. 90 id. at 412. 91 id. at 419. 92 choudhry, supra note 3, at 592; but see susan moller okin, is multiculturalism bad for women?, bos. rev. (oct. 1, 1997), http://boston review.net/forum/susan-moller-okin-multiculturalism-bad-women/ [https://per ma.cc/uja2-tfdn] (arguing that the multicultural group rights framework leaves minority women less protected from violence). no. 2:53] quebec’s bill 62 73 (or none).93 it found that the state’s duty of neutrality cannot be reconciled with a “benevolent neutrality” that does not require complete secularity.94 the court rejected “benevolent neutrality” and instead propounded “true neutrality,” which does not allow the state to adhere to a form of religious expression under the guise of historical reality or heritage and denies it the right to favor one religion over others.95 concepts of state secularism and neutrality have emerged as pivotal to the construction of national identity in the context of debates about reasonable accommodation— particularly in quebec. sujit choudhry argues that the sensitive socio-political context of intense debates regarding questions about religion in quebec has led the supreme court of canada to craft state neutrality as a way of mediating the tension between quebec and the rest of canada on issues of accommodation.96 choudhry notes that quebec judges tend to see a public interest in the neutrality of public or shared spaces, explaining that “to engage in religiously rooted conduct in these common portions could give rise to conflict, because it would alter the character of those spaces in a way that didn’t accord with the religious beliefs of others who had an equal legal right to those spaces.”97 according to this concept, state neutrality can function to privatize religion, thereby insulating both the state and its constituents from any religion-based conflict.98 any positive obligation on the part of the state is thus bound up in endorsing a particular religion and institutionalizing it in the public sphere, effectively creating the conditions for conflict that quebec justices want to avoid.99 this view sits in tension with those articulated by supreme court judges from the rest of canada for whom the positive obligation to accommodate does not necessarily compromise state neutrality. the ambiguity and historical specificity of state neutrality thus serves as a flexible legal concept that can be used to justify 93 mouvement laïque québécois v. saguenay (city), 2015 scc 16, para. 150 (can.). 94 id. at paras. 77–78. 95 see r. v. big m drug mart ltd., [1985] 1 s.c.r. 295 (can.); s.l. v. commission scolaire des chênes, 2012 scc 7, [2012] 1 s.c.r. 235 (can.). 96 choudhry, supra note 3, at 580. 97 id. at 595. 98 id. at 599. 99 id. 74 columbia journal of race and law [vol. 9:1 competing visions of the state’s role in managing religious diversity. many have used state neutrality to resist claims for reasonable accommodation.100 in amselem, dissenting judges cited state neutrality as the basis for their refusal to incorporate the notion of reasonable accommodation into their analysis.101 justice lebel’s dissent in congrégation des témoins de jéhovah de st-jérôme-lafontaine v. lafontaine focused on concerns for maintaining the state’s religious neutrality by refusing to accept any claim for state action to support religious practice.102 in multani, the state neutrality principle arguably formed the basis of justice deschamps’s refusal to invoke the charter to resolve an administrative law issue.103 state neutrality may also be seen as the premise of justice deschamps’s dissent in bruker, in which the justice refused to engage in adjudicating a religious matter—the jewish get.104 finally, in hutterian brethren, the supreme court of canada relied on the notion of the neutral state to argue against the accommodation of religious practices.105 at the same time, the concept of “religious cultural heritage” has emerged to justify the continued presence of christian symbolism in the public sphere. a recent controversy involving a quebec city hospital illustrates this. the hospital triggered public outrage amongst the majority christian culture when it decided to remove a crucifix from its lobby. beaman explains that “[r]ather than defend the crucifix drawing on its religious qualifications, the public debate and discussion focused almost entirely on culture, heritage, and the meaning of the neutrality of the state. when religion was mentioned, it was linked to heritage and culture.”106 as a result of the general public’s response, the hospital returned 100 id. at 592. 101 id. at 594–96. 102 see congrégation des témoins de jéhovah de st-jérôme-lafontaine v. lafontaine (village), 2004 scc 48, [2004] 2 s.c.r. 650 (can.); choudhry, supra note 3, at 592. 103 choudhry, supra note 3, at 604–05. 104 id. at 600 (discussing bruker v. marcovitz, 2007 scc 54, paras. 102, 122–32 (can.)). 105 alberta v. hutterian brethren of wilson colony, 2009 scc 37, para. 108 (can.) (characterizing mandatory photograph requirement for licenses as a “neutral and rationally defensible policy choice”). 106 beaman, supra note 24, at 266. no. 2:53] quebec’s bill 62 75 the crucifix to its place only to affix alongside it a plaque historicizing the role of the church in the hospital’s founding.107 this episode exemplifies how notions of culture and heritage are deployed today to render the majority religious faith universal in the public sphere. the effect of this is to make minority religions’ claims to public space even more visible— while “ours” is culture, part of our heritage and values, theirs is “religion,” particularistic and foreign. in this way, hegemonic religion claims physical space in the guise of culture.108 b. foregrounding structural difference to achieve systemic equality multiculturalism in canada is premised on an understanding of culture that homogenizes and essentializes groups.109 canadian multiculturalism manages minority populations by slotting cultural communities into certain easily recognizable boundaries and rejecting diversity within groups to render them legible to the state.110 in failing to problematize culture, both state multiculturalism and the political theory on multiculturalism reinforce stereotypical views of racialized minority groups.111 this, in turn, homogenizes and essentializes minority groups by ignoring the diversity within them.112 minority groups are popularly understood to be profoundly different in their practices, beliefs, and values. the dominant discourse tends to understand minority cultural and religious practices simplistically. for example, the veil is often understood as a symbol of oppression and victimization, signifying the wearer’s lack of agency rather than spiritual devotion or 107 id. 108 id. at 267; see also lori g. beaman, between the public and the private: governing religious expression, in religion in the public sphere: canadian case studies 44, 54–55 (solange lefebvre & lori g. beaman eds., 2014). 109 anne phillips, multiculturalism without culture 162–63 (2007). 110 himani bannerji, the dark side of the nation: essays on multiculturalism, nationalism, and gender 6 (2000). 111 yasmeen abu-laban, the politics of recognition and misrecognition and the case of muslim canadians, in recognition versus self-determination: dilemmas of emancipatory politics 125 (avigail eisenberg et al. eds., 2014). 112 phillips, supra note 109. 76 columbia journal of race and law [vol. 9:1 assertion of religious freedom.113 in turn, critics of multiculturalism claim that minority groups are inherently hostile to the values of the canadian liberal democratic state, thereby posing a threat to political stability.114 canadian multiculturalism is thus mired in false binaries: east versus west, modernity versus tradition, and culture versus equality. such an understanding of cultural difference does not only impact public policy; it also structures group identity, in response to the distribution of state patronage and benefits, through identity markers made salient by the state.115 as a result, questions of representation, agency, authenticity, and democratic participation gain urgency. moreover, it raises concerns stemming from the paradox of multicultural vulnerability, whereby both state and community leaders exclude minorities within minorities from the articulation of group interests and group identity.116 it is precisely at the intersection of multiple axes of discrimination—religion, gender, community, race, and class—that immigrant minority racialized women are located. multiculturalism policy based on cultural difference is distinct from multiculturalism policy designed to respond to structural inequality. proper legal analysis of bill 62 must be concerned with the latter. structural inequality is premised on what iris young calls a politics of structural difference.117 it is policy that focuses on issues of exclusion and inclusion, revising majority norms and standards that perpetuate systemic inequality. structural difference is primarily concerned with inequalities that arise out of structural disadvantage— when group subordination limits individual participation in social and political institutions. in contrast, culturally-based inequalities arise when groups or individuals within groups 113 vrinda narain, the place of the niqab in the courtroom, 9 icl j. 41, 45 (2015). 114 azizah y. al-hibri, is western patriarchal feminism good for third world/minority women?, in is multiculturalism bad for women? 41 (joshua cohen et al. eds., 1999); phillips, supra note 109, at 3–24. 115 see courtney jung, race, class, and ethnicity in the history of mexican indigenous politics, in recognition versus self-determination: dilemmas of emancipatory politics 21 (avigail eisenberg et al. eds., 2014). 116 see abdullahi an-na‘im, promises we should all keep in common cause, in is multiculturalism bad for women? 59, 64 (joshua cohen et al. eds., 1999). 117 young, supra note 22, at 74, 79. no. 2:53] quebec’s bill 62 77 are denied the liberty to pursue distinct ways of life or when they bear significant economic or political costs in seeking to do so.118 of course, the politics of cultural difference predominate in the debate of political theorists. this emphasis on cultural difference represents a shift away from issue-based politics to identity-based politics. though it is important to accommodate cultural difference by recognizing and affirming distinct cultures and practices, it is critical to pay attention to structural injustice and systemic inequality in responding to minority claims. for a multiculturalism policy to be effective, it must focus on exclusions that result from structural inequalities and not just on those that result from cultural difference. this exposes the structural dimensions of processes of exploitation and normalization that keep groups in marginalized positions. structural problems are displaced onto issues of culture when policies based on cultural difference focus, as they invariably do, on what practices are or are not palatable to the state. issues of racism, poverty, unemployment, poor education, and access to justice are obscured in the process, while issues related to religion and culture are amplified.119 this is not to say that the politics of cultural difference must be rejected. instead, as nancy fraser has argued, group difference that results both from cultural and from structural difference must be emphasized.120 to refocus attention on structural inequality, simplistic, oppositional understandings of women’s substantive equality and minority rights must be complicated. c. theorizing reasonable accommodation reasonable accommodation is the framework through which the state accommodates minority rights by balancing or reconciling competing rights, such as equality and religious freedom. informed by unequal power relations whereby a normative “we” is empowered to determine which aspects of “their” difference may be tolerated, reasonable accommodation measures minority practices against mainstream norms that, 118 id. at 63. 119 id. at 83. 120 id. at 60. 78 columbia journal of race and law [vol. 9:1 though invisible, set the limits of accommodation.121 religious difference, imagined as particularist and intolerant, is deemed a special exception while the normative majority’s culture, rational and tolerant, is normalized.122 as such, reasonable accommodation is “a tool of governmental intervention to manage diversity-related conflict,” a term that communicates the existence of problematic social behavior and renders state intervention necessary.123 because reasonable accommodation focuses on the limits of toleration, it ignores any consideration of minority women’s rights and instead reinforces racial hierarchies. in the process, structural racism and systemic discrimination survive while state multiculturalism is strengthened and legitimized. dominant understandings of multiculturalism define and shape the nature of reasonable accommodation, as do understandings of state secularism, religious neutrality, and gender equality implicated in this discourse.124 legislative initiatives both in quebec and in the rest of canada (such as the bpa)125 make evident that there are shared understandings of these concepts. such initiatives function discursively to affirm the nation’s core values, which are deeply intertwined with specific gender norms.126 as such, reasonable accommodation further reifies the imagined “feminism versus multiculturalism” and “secularism versus religion” dichotomies, which reinforce racialized governmentality and determine the limits of accommodation.127 the discourse around reasonable accommodation normalizes race privilege and fails to adequately consider the power dynamics inherent in this paradigm. sirma bilge has examined how the terms of quebec’s reasonable accommoda 121 see beaman, supra note 21, at 443–45. beaman notes that ns reveals how concepts like accommodation maintain unequal power relations, moving those who are “other” further away from equality by singling out minority women’s claims as exceptions that may or may not be accommodated, without paying adequate attention to issues of race or systemic disadvantage. id. 122 id. at 447–51. 123 bilge, supra note 12, at 158. 124 beaman, supra note 2, at 4. 125 zero tolerance for barbaric cultural practices act, s.c. 2015, c 29 (can.). 126 bilge, supra note 12, at 175. 127 id. no. 2:53] quebec’s bill 62 79 tion debate racialize immigrant women. bilge traces the ways in which public discourse uses culture as a mnemonic for race— what she calls a “racializing code”128—to construct normative citizenship along racial lines.129 the language of “common values,” “ways of life,” and “shared heritage” function to inscribe racial difference while erasing race.130 thus, whereas reasonable accommodation is commonly understood to be about religion and not race, it works in effect to exclude racialized others from the national family while maintaining its legitimacy.131 although race is embedded in the contested terrain of reasonable accommodation, the debate around reasonable accommodation has been “largely cast as raceless.”132 whiteness as privilege is unnamed.133 himani bannerji emphasizes questioning how the language of state multiculturalism obscures relations of power and reconceiving a popular or critical multiculturalism that reflects a “politicized understanding of cultural representation.”134 embedded as it is in the governmentality of equity and diversity policies, reasonable accommodation tokenizes minority groups, as there is a lack of political will to really engage minorities or challenge institutionalized racism. the language of reasonable accommodation also simplifies complex religious subjectivities by forcing individuals, deemed “requesters,” “to frame their religiosity as something that is welldefined and ‘public.’”135 this, in turn, contributes to the hypervisibility of religious difference.136 in this way, reasonable accommodation imposes stereotypical, essentialized understandings of minority cultures that “elude[] notions of equality.”137 debates over reasonable accommodation posit gender equality as irreconcilable with assertions of difference, such that a dialectical tension between difference and conformity 128 id. at 176. 129 id. 130 id. at 172, 176. 131 id. at 159–60. 132 id. at 158. 133 id. at 166. 134 bannerji, supra note 110, at 5. 135 barras, supra note 6, at 12. 136 id. 137 beaman, supra note 21, at 447. 80 columbia journal of race and law [vol. 9:1 lies at the center of these debates.138 often, the tension between women’s rights and multiculturalism is expressed as a sharp binary. their membership as equal citizens is seen as conflicting with their membership in a minority religious or cultural group, with the latter acting as a direct threat to the former. minority women are thus presented with an either/or choice between culture and rights, forced to trade access to education, employment, and political participation for cultural autonomy.139 in these contexts, women are seen and coded according to single-axis frameworks which “‘distort the experience’ of racialized minority women” and erase race from the analysis by substituting “religion and culture.”140 by entering state interests in its management of the putative “problem” of diversity, reasonable accommodation and state multiculturalism fail to redistribute social, economic, and political power to minority communities. such top-down practices of governmentality must be rejected in favor of intersectional anti-racist theory and policy that looks to crafting remedies and institutional responses from the ground-up— from the daily experiences of those at the intersections of multiple axes of discrimination—to create radical social justice tools that challenge racial injustice.141 d. combatting persisting colonial and orientalist tropes of racialized muslim women as we have seen, reasonable accommodation constructs some citizens as ideal and casts out others.142 the discourse that names racialized muslim women as “other” is often orientalist and derived from persisting colonial tropes, particularly when it focuses on the veil. in egypt, the british 138 see austin sarat, the micropolitics of identity/difference: recognition and accommodation in everyday life, in engaging cultural differences: the multicultural challenge in liberal democracies 396, 398 (richard a. shweder et al. eds., 2002). 139 maleiha malik, ‘progressive multiculturalism’: minority women and cultural diversity, 17 int’l j. on minority & group rts. 447, 464 (2010). 140 kimberlé crenshaw, demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics, 1989 u. chi. legal f. 139, 139. 141 bilge, supra note 12, at 162. 142 id. at 167. no. 2:53] quebec’s bill 62 81 distributed step-by-step guides on how to remove the veil.143 the genealogy of laws controlling the veil is distinctly colonial and can be traced back to french colonialism in north africa. in “algeria unveiled,” a landmark essay published in 1959, frantz fanon describes the veil as an object of colonial policy: we shall see that this veil, one of the elements of the traditional garb, was to become the bone of contention in a grandiose battle, on account of which the occupation forces were to mobilize their most powerful and most varied resources, and in the course of which the colonized were to display a surprising force of inertia. . . . the officials of the french administration in algeria, committed to destroying the people’s originality, and under instructions to bring about the disintegration, at whatever cost, of forms of existence likely to evoke a national reality directly or indirectly, were to concentrate their efforts on the wearing of the veil, which was looked upon at this juncture as a symbol of the status of the algerian woman.144 evoking the relationship between knowledge and power so well examined in said’s work on orientalism, fanon goes further: “such a position is not the consequence of a chance intuition. it is on the basis of the analyses of sociologists and ethnologists that the specialists in so-called native affairs and the heads of the arab bureaus coordinated their work.”145 the work of these state-sponsored academics, who developed the cultural analyses and strategies of the colonial administration, had profound repercussions on the lives of muslim colonial populations. two justifications that dominate colonial literature against the veil are the narrative of rescue and the need for communication. the familiarity of these justifications is striking; they have barely changed since the 1950’s. colonial policy depicted algerian women as backwards and in need of 143 leila ahmed, a quiet revolution: the veil’s resurgence, from the middle east to america (2011). 144 frantz fanon, a dying colonialism 36–37 (haakon chevalier trans., 1965). 145 id. at 37. 82 columbia journal of race and law [vol. 9:1 saving, with the veil standing in as a symbol of identity and culture and thus of oppression.146 today, commentators and media sources continue to depict veiled women as subordinate and in need of rescue.147 this discourse animates the obsession with “choice”—the opposition of religious freedom and women’s equality—which in turn has stoked the fears of mainstream liberal feminists such as susan okin and martha nussbaum, who argue that “granting rights to protect minority or traditional cultural practices jeopardizes the struggle for gender equality because minority and traditional culture so often engage in domination of women.”148 mainstream liberal feminists believe that minority women want to and must cast off their minority culture in order to realize their equal rights and join the ranks of “universal sisterhood.”149 governmentality regulated by particular understandings of gender normativity portrays muslim women as unassimilable; they are constructed as threats to democratic values, to gender equality, and to the nation and its “legitimate” citizens.150 paradoxically, muslim women are simultaneously perceived as victims lacking agency and free choice and therefore in need of saving.151 one of bill 62’s purposes for the veil ban is the need for abolishing impediments to communication.152 according to this rationale, which mirrors the colonial logic of integration, the veil is an impediment to the integration of “otherized” women into canadian society as well as an undue burden on canadian tolerance. questions related to communication often overemphasize the veil’s impact on actual communication and displace ideological stances onto the veil as a neutral physical object. the debates surrounding the veil and the niqab, as well as a number of other debates concerning reasonable accom 146 id. at 37–38. 147 homa hoodfar, the veil in their minds and on our heads: the persistence of colonial images of muslim women, 22 resources for feminist res. 5, 5 (1993). 148 see okin, supra note 92. 149 volpp, supra note 22, at 1201. 150 razack, supra note 15, at 87. 151 id. 152 an act to foster adherence to state religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies, s.q. 2017, c 19, § 1 (can.). no. 2:53] quebec’s bill 62 83 modation, rehash colonial and orientalist tropes about muslim women. these tropes are barriers to rational deliberation and stand in the way of a politics of multiculturalism rooted in substantive equality. iv. bill 62 justice minister stéphanie vallée introduced bill 62 in june 2015, and it was enacted into law on october 18, 2017.153 from the outset, bill 62 was the focus of controversy. although several organizations were in favor of the legislation, many opposed it on the grounds that the law unconstitutionally targeted muslim women by the very terms of the law’s reference and application. this section will review bill 62 in detail and provide an analysis pursuant to the theoretical framework described in part iii. a. purpose, scope, and provisions of bill 62 chapter i of bill 62 enunciates the bill’s purpose. the purpose of the law is to establish measures to foster adherence to state religious neutrality: this act affirms the religious neutrality of the state . . . . to that end, the act imposes a duty of religious neutrality, in particular on personnel members of public bodies in the exercise of the functions of office. a further purpose of the act is to recognize the importance of having one’s face uncovered when public services are provided and received so as to ensure quality communication between persons and allow their identity to be verified, and for security purposes. the act also sets out criteria to be taken into consideration when dealing with requests for accommodations on religious grounds resulting from the application of the charter of human rights and freedoms.154 153 id. 154 id. (emphasis added). 84 columbia journal of race and law [vol. 9:1 chapter ii of bill 62 (“measures fostering adherence to state religious neutrality”) is organized into three divisions. division i defines the scope of the bill—the public bodies and state personnel affected.155 the scope is amplified by division iii, which allows public bodies to enforce the bill contractually by importing its provisions into supplier contracts.156 thus, bill 62 includes personnel members of childcare centers, home daycare and any daycare centers subsidized by the government, and any private institution that may receive government resources. strikingly, the bill makes exceptions for public personnel whose purpose is providing spiritual care in health care, university, or correctional contexts.157 it also allows for religious instruction to be funded by the public as part of university-level educational institutions.158 these provisions respond to loyola.159 finally, bill 62 claims that health professionals “may refuse to recommend or provide professional services because of their personal convictions, as permitted by law.”160 chapter iii (“measures within various bodies”) is also organized into three divisions. division ii (“services with faces uncovered”) sets out the duty of uncovering one’s face: personnel members of a body must exercise their functions with their face uncovered. similarly, persons who request a service from a personnel member of a body referred to in this chapter must have their face uncovered when the service is provided.161 division i gives the scope of chapter iii. combined with division i of chapter ii, which gives the scope of the duty of religious neutrality, the bill 62’s scope is very broad and includes within its ambit personnel members of all government 155 id. §§ 2–3. 156 id. § 7. 157 id. § 5. 158 id. § 6. 159 loyola high school v. quebec (attorney general), 2015 scc 12 (can.). 160 s.q. 2017, c 19, § 6. 161 id. § 10 (emphasis added). no. 2:53] quebec’s bill 62 85 departments, government-funded bodies, and bodies whose personnel is appointed by government authorities. going further, it also applies to government agencies, school boards, general and vocational colleges and universities, municipalities, and public transit authorities. health services are also included so that hospitals and clinics come within its scope. finally, all bodies to which the national assembly or any of its committees appoints the majority of the members are also subject to bill 62.162 when the bill refers to personnel members it also includes all personnel members of the national assembly and the staff of the lieutenant governor’s office; all persons appointed or designated by the national assembly to any office under its authority; persons appointed under the public service act; any person appointed by the government or by a minister to exercise an adjudicative function within the administrative branch; all peace officers; and all physicians, dentists, and midwives who work in publicly funded health institutions.163 notably, an amendment at the committee stage extended bill 62’s reach to affect elected members of the national assembly as well as elected municipal officers.164 this list exhibits the immense scope of bill 62 in affecting those who work in any institution funded or even partially funded by the provincial government—administrative bodies, service providers, health, and education. division iii (“religious accommodation”) of chapter iii lays out the framework for reasonable accommodation of the face-covering ban.165 the provision stipulates that a request for religious accommodation must be made pursuant to section 10 of the quebec charter of human rights and freedoms.166 subsection 1 of section 11 provides that the request must be serious. per subsections 2 and 3, the accommodation requested must also be consistent with the right of equality between men and women and the accommodation requested must not compromise the principle of state neutrality.167 finally, subsection 4 requires that the accommodation be “reasonable in that it does not impose undue hardship with regard to, 162 id. § 2. 163 id. § 3. 164 id. § 9. 165 id. §§ 11–14. 166 charter of human rights and freedoms, cqlr, c c-12 (can.). 167 s.q. 2017, c 19, § 11. 86 columbia journal of race and law [vol. 9:1 among other considerations, the rights of others, public health and safety, the proper operation of the body, and the costs involved.”168 strikingly, section 11 ends with the additional requirement that “[a]n accommodation may be granted only if the person making the request has cooperated in seeking a solution that meets the criterion of reasonableness.”169 sections 13 and 14 also specify the factors that must be considered for a request for accommodation that involves an absence from work or a student attending a school-board-regulated educational institution. lastly, chapter iv (“interpretative and miscellaneous provisions”) provides bill 62’s most overwhelming caveat: the measures introduced in this act must not be interpreted as affecting the emblematic and toponymic elements of québec’s cultural heritage, in particular its religious cultural heritage, that testify to its history.170 b. analyzing bill 62 1. interrogating secularism and state neutrality bill 62 is an example of how state neutrality is used to limit rights. as sujit choudhry argues, the idea of state neutrality has been used by the supreme court of canada in an effort to mediate the tensions between quebec and the rest of canada and to reach a normative consensus with regard to reasonable accommodation.171 indeed, bill 62 aims to cast religion to the private sphere by barring the niqab in the use and provision of public services, thereby preserving quebec’s divergent vision of state neutrality. bill 62’s explanatory notes succinctly show some of the contradictions in the position of “state neutrality.”172 these notes are premised on an incorrect understanding of 168 id. 169 id. 170 id. § 16 (emphasis added). 171 choudhry, supra note 3, at 580. 172 s.q. 2017, c 19, at 2. no. 2:53] quebec’s bill 62 87 secularism and neutrality. the bill inexplicably links its insistence on religious neutrality to a prohibition on the manifestation of religious faith. as per case law, religious neutrality is a debated notion whose meaning and application is not yet settled.173 therefore, both parties in the ongoing constitutional challenge to bill 62 are likely to marshal the concept to support their take as to the constitutionality of the law, with the government pointing to majority and minority opinions on neutrality in lafontaine, multani, and hutterian brethren and the plaintiffs pointing to opinions, exemplified in particular by saguenay and n.s., that distinguish between state action and individual practice and reinforce the relationship between neutrality and canadian multiculturalism.174 the fact that the only manifestation of religious faith noted by the law is that of face coverings—which apply only to some female adherents of the muslim faith—is discriminatory and contradicts the bill’s purpose of religious neutrality. furthermore, the bill codifies into law the concept of “religious cultural heritage,” a notion that, as noted above, carries considerable popular discursive power as of late. the provision, which references quebec’s long history of catholicism, shields majority cultural values, norms, and symbols, excluding these from bill 62’s regulatory power as a matter of interpretation. evidently, while quebec’s (white) majority is understood to have “heritage,” distinct and apart from religion, minority groups are racialized by reference to their supposed religious excess. 2. foregrounding structural difference to achieve systemic equality bill 62 focuses on cultural difference to the detriment of an approach based on structural difference. by foregrounding women’s rights in opposition to the wearing of the niqab, the bill opposes women’s rights and cultural and religious identity. it does not consider the effect of the bill on muslim women whose mobility, health, and educational op 173 for a discussion of the supreme court of canada’s conflicting understanding of religious neutrality, see choudhry, supra note 3. 174 mouvement laïque québécois v. saguenay (city), 2015 scc 16, para. 74 (can.). 88 columbia journal of race and law [vol. 9:1 portunities will be affected. instead, it focuses on the intolerability of a religious practice to the mainstream, on what it symbolizes for the majority, and on the importance of imposing consensus in an area that does not require unanimity. the plaintiffs who have filed a legal challenge to bill 62 have described the substantial impact of the bill on their daily lives. according to the pleadings, since the passage of the act, ms. ahmad's daily life has become significantly more difficult. she is concerned that the act will impact her ability to continue going to university, visiting the library, going to the doctor, and taking public transportation. in fact, ms. ahmad now avoids taking public transportation for fear of being turned away or asked to remove her niqab, instead relying on her father to drive her around. ms. ahmad has also experienced an increase in the number of islamophobic and aggressive remarks she hears on the street. she has become uncomfortable being outside of her home alone, so she now often avoids leaving her house except to go to class.175 the bill is indifferent to the muslim women it affects. it interferes substantially with niqabi women’s ability to access services and to participate in public life as equal citizens. the barriers bill 62 poses for muslim women will further entrench poverty’s gendered nature. indeed, the bill operates in direct contrast to professor maleiha malik’s call for a “progressive multiculturalism” that seeks to include minority women in social, economic, and political life.176 finally, bill 62’s drafters appear to have written it without consulting or including the voices of those groups whom it would most directly affect. this lack of consultation underscores how legislative efforts that aim to manage religious diversity often neglect to consider the power relations or hierarchies inherent within them. there is no critical interrogation of who gets to decide what or who are the subjects 175 national council of canadian muslims (nccm) v. attorney general of quebec, 2017 qccs 5459, [2017] q.j. no. 16952, paras. 24–25 (can. que.). 176 malik, supra note 139, at 458. no. 2:53] quebec’s bill 62 89 of regulation and the limits of toleration imposed by this framework.177 instead, bill 62 aims to placate popular anxieties over the presence of islam in quebec and its purported effects on gender equality without engaging the women who are best positioned to speak to the nexus between their faith and their gender. 3. theorizing reasonable accommodation reasonable accommodation is premised on a particular understanding of the national image. it invokes a construction of the other who seeks to be accommodated as somehow deviant. the reasonable accommodation framework perpetuates a hierarchy of privilege that preserves the hegemonic power of the majority.178 as critiqued by scholars, reasonable accommodation is dominated by unequal power relations in which a normative dominant group determines which aspects of difference may be accepted. all minority claims are thereby measured against the yardstick of mainstream norms. this yardstick is the epistemological tool that determines the visibility and invisibility of religion in the public sphere as well as the “quality of communication” that is hindered by face coverings. chapter i of bill 62 states: this act affirms the religious neutrality of the state . . . . to that end, the act imposes a duty of religious neutrality, in particular on personnel members of public bodies in the exercise of the functions of office. a further purpose of the act is to recognize the importance of having one’s face uncovered when public services are provided and received so as to ensure quality communication.179 177 narain, supra note 113, at 49. 178 see narain, supra note 23, at 131–32. 179 an act to foster adherence to state religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies, s.q. 2017, c 19, § 1 (can.) (emphasis added). 90 columbia journal of race and law [vol. 9:1 indeed, bill 62 privileges mainstream culture and religious traditions.180 catholicism, the historically dominant religion in quebec, is immune from bill 62’s effects, allowing hegemonic religious norms to escape regulation or obvious sequestering to the private sphere. the legislation targets muslim niqabi women alone, whose faith comes in direct conflict with the bill’s effects. in doing so, bill 62 effectively positions niqabi women outside of the public for whom state neutrality serves as a collective interest. this is an example of the objectionable category of religious accommodation that fixes dominant and subaltern cultures by placing limits on other religious practices that are premised on whether the mainstream finds such practices tolerable. at the same time, it relies on the myth of “national culture”—portrayed in bill 62 as catholic and french—to assert dominance over “nonnational” cultures.181 by classifying catholic symbols as part of “religious cultural heritage”182 and thus incapable of posing a threat to religious neutrality, it refuses to extend the generous title of “religious cultural heritage” to muslim practices, which are understood as deeply religious, irrational, unreasonable, and fanatic. the other is stripped of religious symbols and manifestations, which are only permitted on some occasions and at the discretion of members of the majority community. the majority community additionally decides if the other is deserving of accommodation (and even then, only if they “cooperate”). 4. combatting colonial and orientalist tropes of racialized muslim women certain provisions of bill 62 reflect an orientalist framing of minority rights and multiculturalism. the bill reaffirms orientalist categories of analysis: us versus them, west versus east, secularism versus religion, modernity versus tradition, and gender equality versus the oppression of women. 180 id. 181 ingrid peritz, quebec legislature's crucifix hangs over secularism debate, globe & mail (oct. 23, 2017), https://www.theglobeand mail.com/news/national/opposition-party-looks-to-remove-crucifix-in-quebecsnational-assembly-amid-bill-62-debate/article36700123/ [https://perma.cc/5tv v-jlbg]. 182 s.q. 2017, c 19, at 2. no. 2:53] quebec’s bill 62 91 this reinforces the cultural status quo, essentializing and othering members of racialized minority communities and reinforcing a western moral and cultural superiority. bill 62 does not further inclusion, equality, or democratic citizenship. on the contrary, it further stigmatizes and marginalizes muslim women, who are portrayed as in need of saving and rescue from their own communities and from their own religious beliefs which are seen to impede “communication” and participation in the body politic. bill 62 is an example of dog-whistle politics—the red herring of gender equality is raised once again, pandering to orientalist and colonial stereotypes of the oppressed muslim woman. similar to previous legislative initiatives such as bill 94 and bill 60, bill 62 prominently notes the principle of gender equality,183 and it identifies principles of secularism and state religious neutrality as its justification. these principles are the ground on which mainstream liberal feminists have supported legislative regulation of muslim and minority racialized women.184 pursuant to subsections 2 and 3 of section 11, an accommodation request must be consistent with the right of equality between men and women and must not compromise the principle of state neutrality.185 in this way, bill 62 and its predecessors animate and reinforce narratives of saving and rescue endemic to contemporary, neo-colonial debates on reasonable accommodation. furthermore, by positioning catholic symbols as a part of quebec’s history, bill 62 plants a flag in symbolic culture, asserting the primacy and singular legitimacy of french catholic culture in quebec. c. the future of religious discrimination in canada the october 2018 elections, in which the liberal party was defeated by the coalition avenir quebec (caq), indicate that the controversies surrounding bill 62 remain at the 183 id. at 5. 184 see, e.g., commentaires sur le projet de loi no 62, loi favorisant le respect de la neutralité religieuse de l’état, conseil du statut de la femme (nov. 9, 2016), www.csf.gouv.qc.ca/article/2016/11/09/commentaires-sur-leprojet-de-loi-no-62-loi-favorisant-le-respect-de-la-neutralite-religieuse-deletat/ [https://perma.cc/568p-w275]. 185 s.q. 2017, c 19, § 11. 92 columbia journal of race and law [vol. 9:1 forefront of political debate. premier-elect francois legault announced that he would move quickly to propose a prohibition on people in public service wearing religious garb, such as kippahs, turbans, and hijabs.186 as a consequence of this proposed law, “public school teachers, crown prosecutors, police officers and judges would not be permitted to wear what the party calls religious signs.”187 placing the blame for any adverse effects of this law on religious minorities themselves, caq representative geneviève guilbault “told reporters that public sector employees in the targeted professions will be the authors of their own demise if they choose to wear outwardly religious clothing or head coverings and will have to find other jobs.”188 mindful that bill 62 is currently subject to a constitutional challenge, legault has asserted a willingness to invoke the “notwithstanding clause” that permits the state to override fundamental rights.189 under this new government, it appears religious minorities will not even be afforded the protections of the charter, paving the way for increased regulation and marginalization. v. conclusion the implications of bill 62 become evident upon its analysis under a theoretical framework focused on interrogating secularism and state neutrality, foregrounding structural difference to achieve systemic equality, theorizing reasonable accommodation, and combatting persisting colonial and orientalist tropes of racialized muslim women. according to this framework, bill 62 uses state neutrality to limit minority rights, focuses on cultural difference rather than structural equality, reifies majority culture as the mainstream 186 jason magder, caq proposed ban on religious garb called ‘legalized discrimination,’ montreal gazette (oct. 3, 2018), https://montre algazette.com/news/local-news/caq-proposed-ban-on-religious-garb-calledlegalized-discrimination [https://perma.cc/6mzf-ffgu]. 187 id. 188 id. 189 the canadian press, legault prepared to override charter to ban religious symbols, youtube (oct. 3, 2018), https://www.youtube.com/ watch?v=e8yw87fnsw0 [https://perma.cc/8ymp-ancx]. section 33 of the canadian charter, known as the notwithstanding clause, allows the government to pass a law in violation of the rights protected under sections 2 and 7-15 of the charter, subject to a five-year renewal. no. 2:53] quebec’s bill 62 93 norm, and rehashes colonial and orientalist tropes of saving and rescuing muslim women. bill 62 codifies centuries-old stereotypes because it was enacted by a government stoking the fires of populism. contrary to the drafters’ misguided attempts to foster a more inclusive society, the bill will result in the exclusion of muslim women. it is, accordingly, anti-democratic. more importantly, it likely violates the guarantees of religious freedom and gender equality under both the quebec charter of human rights and freedoms and the canadian charter of rights and freedoms. bill 62 does not respond to a legal vacuum; it instead serves a political purpose, demonstrating a populist response to antiimmigrant sentiment and widespread anxiety about the place of muslim immigrants in quebec. 94 columbia journal of race and law [vol. 9:1 protecting plyler: new challenges to the right of immigrant children to access a public school education udi ofer* thirty years ago, the supreme court ruled in plyler v. doe that undocumented children have the same right to access a public school education as children who are united states citizens or immigrant children lawfully admitted to the united states. yet today, undocumented children still face numerous obstacles when attempting to access a public school education. moreover, new questions have arisen about the right of children on nonimmigrant visas to enroll in school. this article reviews the plyler decision and subsequent attempts to reverse the ruling. the article examines the rise of the modern-day movement to restrict immigration and the impact of this movement on the right of immigrant children to access a public school education. the article considers several examples of school districts preventing immigrant children from enrolling in schools, and argues that children on nonimmigrant b visas should not be denied enrollment. finally, the article concludes by recommending numerous steps for the federal government to take to ensure that school districts provide equal access to an education to all immigrant children. introduction ...................................................................................... 188   i.   the supreme court s landmark plyler decision .......... 189   ii.   subsequent efforts to challenge plyler and ensuing political tension ...................................................................... 195   iii.  local and state attempts to prevent and deter immigrant student enrollment ......................................... 204   a. schools mandating or requesting proof of immigration status during enrollment ...................................................... 204   b. nonimmigrant children and school enrollment .............. 211   * udi ofer is the advocacy director of the new york civil liberties union thanks donna lieberman, adriana piñón, shira roza, clare tarpey, jennifer carnig, and michael tan for their work to protect the civil rights of immigrant new yorkers, and to ensure that every child in new york state has access to a public school education. 2012 columbia journal of race and law 188 c. student tracking proposals ................................................... 218   iv.  conclusion and recommendations .................................... 222   introduction in 1982, the supreme court ruled in plyler v. doe that states must not deny the equal protection of the laws to a subclass of children based solely on their immigration status, and that undocumented children have the same right to a public school education as children who are u.s. citizens or immigrant children lawfully admitted to the united states.1 yet thirty years later, undocumented children continue to face obstacles when attempting to access a public school education, and new questions have arisen about the right of children on nonimmigrant visas2 to enroll in school. this article reviews past and present obstacles to the full implementation of plyler v. doe and offers recommendations for full and meaningful implementation of plyler . part i reviews the plyler decision. part ii examines subsequent court challenges and legislative attempts to reverse the ruling, as well as the rise of the modern-day movement to restrict immigration. part iii provides several examples of school districts implementing policies that have the effect of preventing immigrant children from enrolling in public school. this section reviews the practices of school districts in several states, including new york. until recently, as many as twenty percent of new york districts mandated or requested that families provide documentation of their part iii also examines the question of whether children on nonimmigrant b visas3 should be denied enrollment in school. this nsidered when determining school district. part iii ends with a review of the current movement 1 plyler v. doe, 457 u.s. 202 (1982). 2 there are multiple categories of nonimmigrant visas. see 8 u.s.c. § temporarily in the united states for a specific purpose. 3 b visas are issued for busi one coming for the purpose of study or of performing skilled or unskilled abandoning and who is visiting the united states temporarily for business or id. 189 protecting plyler vol. 1:2 in state legislatures to mandate the tracking of undocumented children in school districts. part iv of the article recognizes the positive steps recently taken by the federal government to protect the right of immigrant children to an education. this section concludes by recommending that the federal government take additional steps to ensure that school districts (1) refrain from denying children on b visas a free public education;; (2) create clearer distinctions between information that may be asked of children during enrollment and postenrollment;; (3) create model enrollment forms for school districts to ensure that districts avoid constitutional and statutory violations in their enrollment practices;; and (4) aggressively monitor school plyler and antidiscrimination protections. i. the supreme court s landmark plyler decision in may 1975, texas passed a statute that withheld state funds for the education of children living in the united states in violation of federal immigration laws.4 the statute authorized local school districts to deny enrollment to undocumented children.5 in september 1977, mexican children living in texas who could not prove their lawful immigration status brought a class action lawsuit in federal court to enjoin the state from enforcing this law.6 the united states district court for the eastern district of supported by a rational basis and permanently enjoined implementation of the statute.7 the court also ruled that federal law preempted the state statute and found the texas statute to be inconsistent with federal immigration, education and civil rights laws.8 the court of appeals for the firth circuit upheld the lower 9 however, the court of appeals disagreed that federal law pre 4 plyler, 457 u.s. at 205 (citing 1975 tex. sess. law serv. 896 (codified as tex. educ. code ann. § 21.031(1975)). 5 id. 6 id. at 206. the children resided in smith county, tx, and attempted to enroll in the tyler independent school district. the district court certified a class consisting of all undocumented school-aged children of mexican descent residing in the tyler school district. 7 id. at 207. 8 id. at 208 n.5. 9 id. at 209. 2012 columbia journal of race and law 190 empted the texas statute.10 the state appealed to the supreme court. on june 15, 1982, justice brennan, writing for the 5-4 majority of the court, found that texas violated the equal protection clause of the fourteenth amendment to the united states constitution when it denied undocumented children access to the same educational opportunities provided to united states citizens or lawfully admitted immigrants.11 justice brennan ruled that undocumented children could invoke the protections of the equal protection clause.12 the court recognized that undocumented immigrants are not a suspect class under equal protection analysis,13 and that public education is not a fundamental federal constitutional right.14 however, the court did not deem the right to an education to be a regular government benefit.15 following clear precedent,16 the supreme court distinguished public education from other government benefits,17 emphasizing the importance of education in maintaining basic democratic institutions and the long-lasting impact that education has on the life of a child.18 what the state hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare and 19 10 plyler, 457 u.s. at 209. therefore, the supreme court never reached the question of whether federal law preempted the state statute, and instead based its ruling solely on the fourteenth amendment. id. at 208 n.8. 11 id. at 230. 12 id. at 210. 13 id. at 219 n.19, 223. 14 id. individuals by the constitution . . . . nor is education a fundamental right;; a state need not justify by compelling necessity every variation in the manner in independent school dist. v. rodriguez, 411 u.s. 1, 28-39 (1973). 15 plyler, 457 u.s. at 221. 16 see brown v. board of ed., 347 u.s. 483 (1954). 17 plyler, 18 id. at 221 basic institutions, and the lasting impact of its deprivation on the life of the 19 id. at 230. chief justice burger, in his dissent, seemingly agreed with this sentiment. id. at 243. 191 protecting plyler vol. 1:2 the court then applied heightened scrutiny to the texas statute. utilizing a variation of an intermediate scrutiny test, the court concluded that the discrimination authorized by the statute could not be considered rational unless it furthered some substantial goal of the state.20 the majority found that the texas statute failed this test.21 undocumented children c 22 the equal protection clause within its jurisdiction 23 the state of texas supported by amicus briefs from the pacific legal foundation and the texas association of school boards argued that because of their protection 24 raising similar arguments employed today 25 texas argued that undocumented children are not within the jurisdiction of the state 20 id. at 224, 230. 21 id. children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. no such showing was made here. accordingly, the judgment of the court of appeals in each of these cases is 22 id. at 210-17. 23 u.s. const. amend. xiv, § 1 (emphasis added). 24 plyler, 457 u.s. at 210. 25 birthright citizenship confers citizenship to any person born in the united states. see united states v. wong kim ark, 169 u.s. 649 (1898) (holding that the fourteenth amendment provides citizenship by birth to those within the territory of the united states). on january 5, 2011, representative steve king (r-ia) introduced h.r. 140 to restrict the right of citizenship to only three categories of children: (1) children of united states citizens;; (2) children of permanent residents (green card holders);; and (3) children of non-citizens in active-duty in the military. birthright citizenship act of 2011, h.r. 140, 112th cong. (2011). as of april 23, 2012, the legislation was co-sponsored by eighty-seven lawmakers. similar proposals have been made to amend the u.s. constitution to restrict birthright citizenship. the fourteenth amendment was adopted after the civil war to ensure that all persons born on united states soil are treated equally in regard to the right of citizenship, and ensures that minorities in the united states are protected from discrimination. if the proposed constitutional amendment to would be the first provision of the constitution ever changed to restrict, rather than expand, civil rights. 2012 columbia journal of race and law 192 because they reside in the state illegally.26 the supreme court rejected that argument, stating that undocumented children, regardless of their status under federal immigration laws, are persons in any ordinary sense of the term and thus subject to the jurisdiction of the state.27 first, the court found that any ordinar applies to all people, including undocumented immigrants.28 second, the court reviewed the history of the fourteenth amendment to find no support for the proposition that undocumented immigrants are not within the jurisdiction of the state.29 rather, undocumented immigrants, regardless of how they entered the united states or whether they overstayed their visas, clearly live within the geographical boundaries of the state and are subject to its laws.30 th who is subject to the laws of a state, and reaches into every corner 31 the clause could not be used to limit its protections, as the appellants advocated. quoting from its earlier decision in yick wo v. hopkins,32 the court stated: the fourteenth amendment to the constitution is not confined to the protection of citizen shall any state deprive any person of life, liberty, or property without due process of law;; nor deny to any person within its jurisdiction the equal protection of the these provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality;; and the protection of the laws is a pledge of the protection 26 plyler, 457 u.s. at 210-11. 27 id. at 210. 28 id. 29 id. the fourteenth amendment was limited, that debate clearly confirms the boundaries, and to all upon whom the state would impose the obligations of 30 id. 31 id. at 215. 32 yick wo v. hopkins, 118 u.s. 356, 369 (1886) (finding that the discriminatory application of a san francisco statute, even against noncitizens, violated the equal protection clause). 193 protecting plyler vol. 1:2 of equal laws.33 the court found that permitting the state of texas to use the co a subclass of people the guarantees of the equal protection clause would directly undermine the very purpose of the clause, since the fourteenth amendment was designed to ensure that the laws are applied equally to all persons.34 the court concluded that undocumented immigrants live within the jurisdiction of the state and are subject to the laws of the state in the same way that undocumented immigrants are subject to the obligations imposed on them by t criminal and civil laws.35 the court also found troubling the fact that the texas statute imposed its penalties on the children of undocumented immigrants, rather than on those who willfully acted to break the laws of the united states.36 any persuasive arguments to support withholding benefits from those who violated federal immigration laws do not apply to children of lawbreakers since they have little control over their circumstances.37 the c attempt to control the conduct of adult lawbreakers by punishing their children,38 and concluded: [the texas statute] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. the stigma of illiteracy will mark them for the rest of their lives. by denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our nation. in 33 plyler, 457 u.s. at 211 (quoting yick wo, 118 u.s. at 369). 34 id. at 213. 35 id. at 215. if the state of texas believed that undocumented families lived outside of its jurisdiction and its laws, then could an they, for example, violat texas argues that the jurisdictional requirement of the equal protection clause does not apply to undocumented immigrants, then it must also argue that the mented immigrants. 36 id. at 219-20. 37 id. at 220. this point, that innocent children should not be punished for the actions of their adult caretakers, is very much relevant today, where children on temporary visas find themselves unable to enroll in school because their parents have decided to violate their immigration status. 38 plyler, 457 u.s. at 220. 2012 columbia journal of race and law 194 determining the rationality of [the texas statute], we may appropriately take into account its costs to the nation and to the innocent children who are its victims. in light of these countervailing costs, the discrimination contained in [the texas statute] can hardly be considered rational unless it furthers some substantial goal of the state.39 the majority determined that texas failed to show a substantial goal to justify its discrimination.40 chief justice warren e. burger, writing for the minority, criticized the majority for overstepping its judicial functions by assuming a policymaking role.41 chief justice burger confessed to agreeing with the majority that undocumented immigrants should not be denied a public school education, but he concluded that such determinations should be left to the political branches and not to the judiciary.42 the minority of the court did agree with the majority that the equal protection clause applies to undocumented immigrants,43 but it disagreed with the test applied by the majority to determine 44 chief justice burger applied a traditional rational basis test whether the legislative action has a rational relationship to a legitimate government purpose to determine that denying undocumented children a free public school 45 while chief justice burger without hesitation that it is senseless for an enlightened society to 39 id. at 223-24. 40 id. at 227-30. the state of texas made numerous arguments, rejected by the court as insufficient, to attempt to justify its discriminatory statute: to preserve money that will be used for the education of united states citizens and lawful residents;; to protect itself from an influx of undocumented immigrants;; to avoid the special burdens imposed on the state to provide an adequate education to undocumented children;; and to refrain from spending resources on a population of undocumented children that are less likely to remain in the united states and contribute productively to the state. 41 id. branches under our structure of limited and separated powers when we assume 42 id. at 252. 43 id. at 243. 44 id. at 248. 45 plyler, 457 u.s. at 249. 195 protecting plyler vol. 1:2 deprive any children including illegal aliens of an elementary 46 he emphasized that it is not up to the court to justice burger concluded that the state of texas had the right to make a policy decision to prohibit undocumented children from receiving a free public school education.47 ii. subsequent efforts to challenge plyler and ensuing political tension since the supreme in plyler, federal, state, and local policymakers have attempted to overturn the ruling. each challenge has brought new obstacles to full implementation of the protections afforded to immigrant children by the court. n in plyler began immediately. hours following the ruling, a young assistant attorney general by the name of john g. roberts wrote a memo for the in support of the appellants and of the texas statute, citing it as a failure to encourage judicial restraint.48 the case had first been filed under the carter administration, and the justice department supported the plaintiffs in their challenge to the texas statute.49 by 46 id. at 242. 47 id. at 252choice i would make were i a legislator. apart from compassionate considerations, the long-range costs of excluding any children from the public schools may well outweigh the costs of educating them. but that is not the issue;; the fact that there are sound policy arguments against the texas 48 memorandum from john roberts & carolyn kuhl to the attorney plyler v. doe http://www.archives.gov/news/john-roberts/accession-60-98-0832/036chron-file-3-1-82-8-31-82/folder036.pdf. federal lawmakers raised the hearings to become the chief justice of the supreme court. united states senator richard j. durbin (d-il) asked judge roberts his views on this issue twenty judge roberts refused to answer the question directly, instead stating that his memo focused on the lack of consistency i explained that should he have to consider this case today, it would be entitled to respect under the legal doctrine of stare decisis. confirmation hearing on the nomination of john g. roberts, jr., to be chief justice of the united states before the s. comm. on the judiciary, 109th cong. 390-393 (2005). 49 linda greenhouse, justices rule states must pay to educate illegal alien pupils, n.y. times, june 16, 1982, at a1. http://www.archives.gov/news/john-roberts/accession-60-98-0832/036-chron-file-3-1-82-8-31-82/folder036.pdf http://www.archives.gov/news/john-roberts/accession-60-98-0832/036-chron-file-3-1-82-8-31-82/folder036.pdf 2012 columbia journal of race and law 196 the time the case made its way to the supreme court, president reagan had assumed office and the justice department abandoned its support for the case. the department continued to support the but took no position on the constitutionality of the texas statute.50 grew intensely.51 in november 1994, california voters approved, by a vote of 59% to 41%, proposition 187, which prohibited undocumented immigrants including public education.52 the proposition mandated that public school personnel, as well as law enforcement, social services, and healthcare personnel (1) verify the immigration status of individuals they come in contact with;; (2) report suspected undocumented immigrants to state and federal authorities;; and (3) deny such individuals education, healthcare and social services.53 aliens from public el the classification of immigrant children into eligible and ineligible categories, as well as cooperation between local and federal authorities in identifying and facilitating the deportation of undocumented children.54 sections (a)-(c) mandated verification of states, an alien lawfully admitted as a permanent resident, or a person who is otherwise authorized under federal law to be present 55 (interestingly, the latter category appears to ) section (d) mandated the verification of the lawful immigration status of parents of children enrolled within a school district.56 50 id. 51 the southern poverty law center has described the late 1990s as seeing the greatest explosion of anti-immigrant sentiments and nativism in a century, and it associated the rise of nativism with a backlash to the growth of the latino population in the united states. heidi beirich, essay: the antiimmigrant movement, s. poverty law ctr., feb. 19, 2011, http://www.spl center.org/get-informed/intelligence-files/ideology/anti-immigrant/the-antiimmigrant-movement. 52 league of united latin am. citizens v. wilson, 908 f. supp. 755, 763 (c.d. cal. 1995) (including a history of the ballot initiative and vote). 53 id. at 787 app. a. 54 id. at 789. 55 id. at 789 app. a. 56 id. at 790 app. a http://www.splcenter.org/get-informed/intelligence-files/ideology/anti-immigrant/the-anti-immigrant-movement http://www.splcenter.org/get-informed/intelligence-files/ideology/anti-immigrant/the-anti-immigrant-movement http://www.splcenter.org/get-informed/intelligence-files/ideology/anti-immigrant/the-anti-immigrant-movement 197 protecting plyler vol. 1:2 section (e) required that schools report the undocumented status of children and parents to state and federal agencies.57 finally, section (f) mandated full cooperation in removing the child to attend school 58 proposition 187 further escalated the already intense debate brought the issue of providing undocumented children with a free public school education to the forefront of public debate. the referendum took place during a difficult re-election battle for governor pete wilson, who made support for the referendum a primary focus of his ultimately successful re-election campaign.59 numerous civil rights organizations filed a federal challenge to proposition 187 immediately after it passed, including the american civil liberties union and the mexican american legal defense and educational fund.60 in december 1994, a federal district court enjoined the implementation of most of proposition 187.61 on november 20, 1995, the district court granted in part 62 most significantly for purposes of this article, the court ruled that federal law preempted the provisions within the proposition that excluded undocumented immigrants from a public school education.63 the court found that section 7 in its entirety conflicted with federal law, including the plyler decision.64 moreover, it repeated the holding in plyler that such 57 id. 58 wilson, 908 f. supp. at 789-90 app. a. 59 see cathleen decker & daniel m. weintraub, wilson savors win, democrats assess damage, l.a. times, nov. 10, 1994, available at http://articles. latimes.com/1994-11-10/news/mn-61016_1_democratic-party;; susan davis, shades of prop 187? pete wilson cuts immigration ad for whitman, wall st. j., washington wire blog (may 11, 2010, 4:27 pm est), available at http://blogs. wsj.com/washwire/2010/05/11/shades-of-prop-187-pete-wilson-cutsimmigration-ad-for-whitman/. 60 wilson, 908 f. supp. at 763. 61 id. at 764 (grammatical error in the decision states 1995 rather than 1994). the court enjoined sections 4, 5, 6, 7, and 9 of proposition 187. 62 id. at 755. even though the court granted and denied in part the motions for summary judgme of the case;; therefore, it also ruled that the preliminary injunction against implementation of the full statute should remain in effect until further order of the court. id. at 764. 63 id. at 774. 64 id. at 774. de canas v. bica, 424 u.s. 351 (1976), to determine whether a state statute related to immigration is preempted: 2012 columbia journal of race and law 198 exclusions of undocumented children violated the equal protection clause of the fourteenth amendment.65 while legal challenges to the law proceeded, supporters of the proposition took their cause to the federal level. republicans had taken control of congress in 1994 and california republicans such as governor pete wilson urged congressional republicans to plyler v. doe by passing federal legislation that would authorize individual states to deny a public education to undocumented children.66 heeding his call, representative elton gallegly (r-ca), who now chairs the house of enforcement,67 amen states to deny public education to undocumented immigrants.68 his amendment passed the house of representatives by a vote of 257163,69 but did not pass the senate and eventually died in committee negotiations.70 immigration;; (2) if not a regulation of immigration law, whether congress intended to occupy the field that the statute attempts to regulate;; or (3) whether the statute conflicts with federal law, making compliance with both impossible. wilson, 908 f. supp. at 768. 65 id. 66 pete wilson, piety, but no help, on illegal aliens, n.y. times, july 11, 1996, at a23. 67 see an unexpected choice for a house post, n.y. times, jan. 8, 2011, at a12. 68 h.r. 4134, 104th cong. (1996). 69 final vote results for roll call 433, vote on passage of h.r. 4134, 254-175-5 (sept. 25, 1996). 70 see eric schmitt, g.o.p. will delete disputed measure in immigrant bill, n.y. times, september 24, 1996, at a1. the gallegly amendment would have faced an immediate legal challenge should it have passed and most likely would have been struck down by the courts. opponents of the amendment would have argued that the supreme court addressed this issue in plyler v. doe, which found that the equal protection clause requires that undocumented children be provided with the same opportunities to access a public school education as united states citizens and documented children. supporters of the amendment would have argued that the plyler decision is no longer binding since congress has now made it clear that undocumented children are ineligible for a free public school education, and under its plenary powers to regulate immigration, congress may authorize states to deny a public school education to undocumented children. despite the strong arguments made by supporters of the amendment, they would not be able to overcome the plyler that the equal protection clause prohibits 199 protecting plyler vol. 1:2 although the amendment did not succeed, it once again question of whether the constitution provides to undocumented children the equal protection of the laws and the right to receive the same access to a public school education as united states citizens and documented children. republicans attacked senators from their own party who opposed the amendment, such as texas republican senators phil gramm and kay bailey hutchison.71 writing in a new york times op72 according to governor wilson, state governments should not bear the responsibility of paying for the education of undocumented children.73 instead, or the federal government should shoulder the financial burden.74 also in 1996, congress passed the personal responsibility and work opportunity reco among other things, instituted a comprehensive regime regulating the availability of federal, state, and local public benefits and services to non-citizens.75 it created categories of qualified and non-qualified immigrants and made determinations on their eligibility for benefits based on such categorizations.76 congress expressly stated that the the government from being able to carve out classifications of individuals for the sole purpose of denying them an important government benefit such as a public school education, which the court has determined to be distinguishable from other government benefits. 71 see, e.g., wilson, supra note 66, at a23. 72 id. 73 id. 74 id. governor wilson made the case that the public was fed up with unfunded mandates imposed on the states by the federal government. he never fully explained where the mandate came from whether from the plyler failure or inability to deport millions of undocumented immigrants but regardless, he did not believe that states should have to pay for the education of undocumented children. 75 personal responsibility and work opportunity reconciliation act of 1996, pub. l. no. 104-193, 110 stat. 2105. see also 20 u.s.c. § 1070 (2006). 76 under the immigration and nationality act [8 u.s.c.a. § 1101 et seq.], (2) an alien who is granted asylum under section 208 of such act, (3) a refugee who is admitted to the united states under section 207 of such act, (4) an alien who is paroled into the united states under section 2012 columbia journal of race and law 200 should not be constituted as an incentive for individuals to immigrate to the united states. the legislation emphatically stated: illegal immigration provided by the availability of public b 77 however, the law also stated, construed as addressing alien eligibility for a basic public education as determined by the supreme court of the united states under plyler v. doe ( 78 in response to passage of prwora, defendants in the league of united latin american citizens case moved for 79 the federal district court responded by holding that the prwora preempted portions of proposition 187 and that section 7 of proposition 187 was invalid.80 the district court held that while prwora is a comprehensive law limiting the availability of public benefits to noncitizens, it does not deny the right to a free public school education for immigrants.81 instead, the federal law supports the supreme 212(d) of such act for a period of at least 1 year, (5) an alien whose deportation is being withheld under section 8 u.s.c. § 1641(b) (2006). 77 id. § 1601. 78 id. § 1643. 79 league of united latin am. citizens v. wilson, 997 f. supp. 1244, 1252 (c.d. cal. 1997). 80 id. at 1255-56. the court found that section 7, as well as other sections of proposition 187, attempted to cover the same benefits covered by no powe id. at 1255. the only regulations that california could promulgate in this area were regulations to implement the federal law. id.81 id. comprehensive statutory scheme regulating alien eligibility for government benefits. it does not deny public elementary and secondary education to aliens . . . although basic public education clearly must be classified as a government benefit, just as health care is, the pra does not purport to deny it to nonqualified aliens. proposition 187 cannot do that either under the present state 81 id. statutory scheme regulating alien eligibility for government benefits. it does not deny public elementary and secondary education to aliens . . . although basic public education clearly must be classified as a government benefit, just 201 protecting plyler vol. 1:2 plyler and by not denying a public school education to immigrants who it considered unqualified to receive other federal, state, and local benefits.82 on march 13, 1998, the federal district court issued a final order declaring section 7 and most of the other sections of proposition 187 to be unconstitutional and preempted by federal law.83 on july 29, 1999, a court-approved mediated agreement was signed by the state of california.84 newly elected governor gray davis agreed to withdraw the appeal to the ninth circuit that had been filed by governor wilson.85 despite the defeat of proposition 187, immigration restrictionists have not abandoned hopes of overturning the decision. they claim that immig systems, 86 yet they make few distinctions in attacking undocumented immigrants and u.s. citizen children of immigrants who attend public schools.87 they also lambast justice brennan and criticize anyone who would apply the equal protection clause to undocumented immigrants,88 yet do not mention that even the as health care is, the pra does not purport to deny it to non-qualified aliens. 82 see wilson, 997 f. supp. at 1255-56.83 id. 83 id. 84 patrick j. mcdonnell, court battles, l.a. times, july 29, 1999, available at http://articles.latimes.com/ 1999/jul/29/news/mn-60700. 85 id. 86 fed n for am. immigration reform (fair), immigration and school overcrowding, oct. 2002, http://www.fairus.org/site/pageserver?page name=iic_immigrationissuecenters51f8. 87 id. anti-immigrant movements historically have been associated with nativist as well as discriminatory sentiments, and the current antiimmigrant movement, with its roots in the midto late-1990s, has its eye on latino immigrants. according to the southern povert groups contend, with little and no empirical evidence to back them up, that latin american immigrants contribute disproportionately to a host of societal ills from poverty and inner city decay to crime, urban sprawl and environment supra note 51. in a may 2000 rally in sierra vista, arizona, barbara coe of the california coalition for immigration ch less illegal alien bringing in communicable diseases, one less illegal alien smuggling deadly drugs, [and] one less illegal alien gang member to rob, rape and murder innocent u.s id. 88 howard sutherland, plyler v. doe: the solution, vdare, feb. 13, 2003, http://www.vdare.com/sutherland/the_solution.htm. see also edwin s. rubenstein, the burden of plyler v. doe, the social contract press, may 1, 2010, available at http://www.thesocialcontract.com/articles/plyler-v-doe.html. http://www.fairus.org/site/pageserver?pagename=iic_immigrationissuecenters51f8 http://www.fairus.org/site/pageserver?pagename=iic_immigrationissuecenters51f8 2012 columbia journal of race and law 202 plyler opinion including justice rehnquist recognized that the equal protection clause applies to undocumented immigrants.89 lawmakers in texas continue to introduce legislation that would deny a free public school education to undocumented immigrants90 or that would deter their enrollment.91 during his campaign for governor of colorado, former congressman and presidential candidate tom tancredo promised that he would deny funding for the public school education of undocumented children should he be elected governor, in the hope of triggering a court battle.92 critics of the supreme court decision call plyler 93 and accuse it 94 some groups also continue to call on congress to pass legislation to overturn plyler.95 they interpret the plyler decision to have been based largely on a particular set of facts in the 1970s that 89 the conclusion that the equal protection clause of the fourteenth amendment applies to aliens who, after their illegal entry into this country, are 90 katherine leal unmuth, 25 years ago, tyler case opened schools to illegal migrants, the dallas morning news, june 11, 2007, at 1a. 91 h.b. no. 262, 81st leg. sess. (texas 2009). 92 jessica yellin, tancredo: deny public school funding to children of illegal immigrants, cnn, aug. 10, 2010. 93 howard sutherland, plyler v. doe: the solution, vdare, feb. 13, 2003, http://www.vdare.com/sutherland/the_solution.htm. 94 id. 95 see, e.g., sutherland, supra note 93 o what most people today believe, the supreme court is not the sole interpreter of the constitution. the congress can and should pass legislation clarifying that the equal protection clause cannot be construed to compel a state to provide discretionary benefits, including public education, to anyone who is not legally admitted into the united states. the legislation should specify that ) (quoting fourteenth amendment);; fair, supra note 86 ( plyler v. doe also found that there is no fundamental right to education, that texas had not proved its argument that admission of illegal alien children to public schools would damage the educational opportunities provided to u.s. citizen children, and that there was no evidence that the u.s. government seriously intended to deport the parents of the illegal alien children. the court could reverse the ruling if these circumstances were to change or if congress were to make the exclusion of these students explicit by 203 protecting plyler vol. 1:2 are no longer relevant today.96 organizations such as fair argue that they could convince the supreme court to uphold such restrictions and reverse the plyler decision by proving that denying undocumented immigrants access to a public school education will benefit the educational opportunities provided to u.s. citizens and documented residents.97 one person who had vigorously supported denying undocumented children access to a free public school education, however, now believes that he was wrong. former superintendent jim plyler, the appellant in plyler v. doe, now agrees with the according to mr. plyler, if he 98 jim plyler has not spoken extensively about his change of mind, but his reflection does provide a practical perspective on this controversial issue. while one may disagree with the supreme undocumented children to a free public school education, the policy of providing a public education to undocumented children is a sound and practical one. as chief justice burger recognized in his dissent in plyler, while he did not believe that the constitution prohibited states from denying a free public school education to undocumented children, he did believe that such restrictions were senseless and counterproductive. the long-term consequences of depriving undocumented children with a public school education greatly outweigh any short-term financial gains. jim plyler may not have realized this when he fought to deny undocumented children a public school education. however, after living in texas for twentyfive years following the plyler ruling and seeing the day-to-day impact of a public school education on the lives of children including undocumented children he realized that the supreme court was right to prohibit texas from restricting the right of immigrant children to attend public school. 96 fair, supra note 86. fair argues that in the plyler case, texas did not have the factual evidence to support the contention that undocumented children have a negative impact on the ability of states to provide an adequate public school education to united states citizens and documented children. fair also argues that evidence exists today to support such allegations. 97 id. 98 unmuth, supra note 90, at a1. 2012 columbia journal of race and law 204 iii. local and state attempts to prevent and deter immigrant student enrollment the hostility towards the rights of immigrants also has seeped into the schoolhouse gate,99 where school districts have established new methods to deny or discourage enrollment by undocumented children, as well as certain categories of documented children. some school districts now request or even mandate that children provide proof of their green card, social security number, or visa information when attempting to register for school. other school districts are preventing students on nonimmigrant visas from enrolling in school. moreover, numerous states have legislative proposals before them to mandate that school districts track and report the number of undocumented children in their schools, and one state has already passed such a proposal. variations of some of these methods were attempted in the 1990s during the first great backlash against plyler but current attempts to deter certain students from enrolling in school reflect new challenges to the equal right of immigrant children to access a public school education. this section provides examples of the above practices and their impact on the ability of immigrant children to register for school. it argues for an interpretation of plyler that prohibits school during the enrollment process or requiring documents that may should not be considered when determining eligibility for a free public school education. a. schools mandating or requesting proof of immigration status during enrollment families who enroll their children in public school typically a particular school district. in most school districts, families may meet these requirements by providing records that do not also reveal their children school districts throughout the nation have adopted policies or engaged in practices that do require or request documention of a 99 see michelle garcia, school forms immigration-related questions stir concern, wash. post, sept. 10, 2006, available at http://www.washingtonpost. com/wp-dyn/content/article/2006/09/09/ar2006090900832.html (quoting a representative from fair who stated that ordinances such as the ones passed by hazleton, pa that deny housing to undocumented immigrants will eventually extend to education.). 205 protecting plyler vol. 1:2 and even the examples provided below from the states of pennsylvania, new jersey, and new york do not mean to suggest that this problem is unique to those states. rather, they reflect states where families and advocates the practices identified in these states are most likely present in many other parts of the country.100 in 2008, the education law center studied the registration practices of school districts in pennsylvania and determined that 162 out of the 501 school districts had enrollment policies and practices that violated federal or state law.101 fifty-seven of the school districts investigated by the education law center required a social security number as a prerequisite to enroll a child in school, with two of the school districts even requiring that the parents of the prospective student possess a social security number.102 undocumented children are ineligible for social security numbers and thus, were unable to register for school in these districts.103 moreover, some school districts required that families provide a receive special approval from the school superintendent in order to enroll in school.104 100 according to conversations the author had in the fall and winter of 2010 with civil rights attorneys from various parts of the country, there is example, in tennessee, schools have begun to request social security numbers from enrolling students, and in michigan, at least one school district is requiring that all foreign born residents provide green cards to register for classes. copies of email correspondences that the author had with advocates in several states are on file with the author. 101 educ., aug. 8, 2008, at 5, http://www.elc-pa.org/pubs/downloads/english/ imp-request%20for%20investigation%208-08.pdf [hereinafter letter to dr. rhen]. 102 id. at 5. 103 mandating that children provide their social security number when registering for school also raises concerns under the federal privacy act of 1974. privacy act of 1974, 5 u.s.c. § 552a (2006). under section 7 of the note to the act, state social security number also must disclose: (1) whether disclosure of a social security number by the individual is mandatory or voluntary;; (2) the authority by which the social security number is solicited;; and (3) the uses to which such information shall be put. 104 letter to dr. rhen, supra note 101, at 6. 2012 columbia journal of race and law 206 pennsylvania is one of the few states in the country that has laws in place to provide guidance to school districts on the inquiries that may be made during the enro inquiring abou process.105 yet t protections. in september 2008, the aclu of new jersey (aclu-nj) per information during the enrollment process that would reveal a child 106 it cited monmouth county as the worst, with twenty-six school districts in that county alone mandating citizenship or immigration status information as a prerequisite to enroll in school.107 the aclu-nj sent letters to the 105 22 pa. code § 11.11(d) (2007). the pennsylvania code does recognize that a student on an f-1 visa still has to pay tuition to the school district. id. however, this should not impact the student registration process, since foreign students receive f-1 visas after a school district already has tuition to the school district. see student visas, u.s. dep t of state, http://travel.state.gov/visa/temp/types/types_1268.html (last visited mar. 30, accepted for enrollment in a school approved by the department of homeland security and a computer-generated i-20 form submitted by the school). 106 1 in 5 nj schools puts up barriers for immigrant children, am. civil liberties union of n.j., sept. 2, 2008, http://www.aclu-nj.org/news/2008/ 09/02/1-in-5-nj-schools-puts-up-barriers-for-immigrant-children/ [hereinafter am. civil liberties union of n.j.] ne states that immigration status shall not affect the eligibility of a child to enroll in school. n.j. admin. code § 6a:22-3.3(b) (2010). the administrative code also prohibits a school district from requiring, or even requesting, as a condition of enrollment in the school, documents or information relating to a number. see id. § 6a:22-3.4(d). school districts may not even request these documents indirectly as a condition of enrollment. see id. § 6a:22-3.4(e). like pennsylvania, the new jersey code does contain an exception for students who are on an f-1 visa. see id. § 6a:22-3.3(b)(1). it is likely not accidental that the states with statutory protections for the enrollment of immigrant children (new jersey and pennsylvania) also have seen extensive advocacy by advocates to ensure that school districts meet their statutory and constitutional obligations. 107 am. civil liberties union of n.j., supra note 106. http://travel.state.gov/visa/temp/types/types_1268.html http://www.aclu-nj.org/news/2008/09/02/1-in-5-nj-schools-puts-up-barriers-for-immigrant-children/ http://www.aclu-nj.org/news/2008/09/02/1-in-5-nj-schools-puts-up-barriers-for-immigrant-children/ 207 protecting plyler vol. 1:2 state department of education and the 187 offending school districts asking them to stop their practices.108 the state department of education intervened and mandated that districts end these practices.109 in new york state the new york civil liberties union where the author of this article works first received a complaint from a family in the summer of 2009 about a local sc during the school enrollment process. after receiving the intake, the nyclu conducted a cursory search of new york school school districts had similar practices. the nyclu contacted those districts to ask that they amend their practices, andon september 8, 2009, the nyclu also wrote to the new york state education tices of the five districts that the nyclu identified, as well as the requirements of all school districts in the state. the sed refused to contact the offending school districts or to investigate whether other school district may have similar practices.110 on december 14, 2009, the nyclu wrote to the sed again to request that officials take immediate steps to ensure that school districts do not deprive undocumented children of their right to enroll in school. once again, the nyclu did not receive a satisfactory response, and on february 5, 2010, the organization wrote for a third time. the state education department responded to the third letter by posting a short notice buried in a much longer sed electronic news bulletin reminding school districts of a past school.111 the bulletin did not provide any context for this reminder, nor did it include an explanation that schools must not requir 108 id. 109 in at least one school district, after the local school board explained that it will not deny enrollment to immigrant children despite asking immigration-related questions, there was an increase in the number of south asian families registering their children for school in that district. garcia, supra note 99. 110 copies of communications between the new york civil liberties union and the state education department are on file with the author. 111 see letter from donna lieberman & udi ofer to david steiner, http://www.nyclu.org/files/releases/ nyclu_letter_to_sed_07.23.10.pdf. http://www.nyclu.org/files/releases/nyclu_letter_to_sed_07.23.10.pdf http://www.nyclu.org/files/releases/nyclu_letter_to_sed_07.23.10.pdf 2012 columbia journal of race and law 208 when attempting to register for school.112 it made no mention of immigrant students or plyler v. doe. the state education would be taken.113 adequate response, the nyclu reviewed the school enrollment practices of almost all 695 school districts in new york state. the examination revealed that at least 139 school districts (twenty percent of all school districts) in new york appeared to have in place registration policies that lawful immigration status when registering that child for school.114 school districts implemented a variety of practices during their registration processes. some mandated that non-citizens provide their green card in order to enroll in school. for example, the spencerport central school district stated in its student registration checklist of mandatory items t -94 form a [sic] resident alien card (green card). if the card is expired it will not be 115 moreover, inside the registration packet, the school district included an 116 other school districts, like the oxford academy and central schools, mandated that children provide their social security number when registering.117 districts such as sweet home central school district 112 see id. 113 to n.y. civil liberties union, apr. 20, 2010 (on file with author). in the letter, gaffney stated that the state education department will not take any see also nina bernstein, no visa, no school, many new york districts say, n.y. times, july 23, 2010, at a16. 114 5 new york state school districts puts up illegal barriers for immigrant http://www.nyclu.org/ news/nyclu-analysis-1-5-new-york-state-school-districts-puts-illegal-barriersimmigrant-children. 115 lieberman & ofer, supra note 111. a copy of the old spencerport central school district form is on file with the author. following the rom its student enrollment forms. 116 id. 117 id. a copy of the old oxford academy and central schools form is on file with the author. the district has since removed the requirements http://www.nyclu.org/news/nyclu-analysis-1-5-new-york-state-school-districts-puts-illegal-barriers-immigrant-children http://www.nyclu.org/news/nyclu-analysis-1-5-new-york-state-school-districts-puts-illegal-barriers-immigrant-children http://www.nyclu.org/news/nyclu-analysis-1-5-new-york-state-school-districts-puts-illegal-barriers-immigrant-children 209 protecting plyler vol. 1:2 us citizen, must provide a passport, visa to verify length of 118 on july 21, 2010, the nyclu wrote to sed officials once again, and sent letters to all 139 offending school districts.119 the nyclu also provided a copy of the findings to the new york times, which ran a lengthy article describing the practices of some of the failures to address them.120 forty days later, and following dozens of news articles ,121 the state education department issued a guidance to all school districts resident students a 122 from its student enrollment form, although it still lists documentation of a 118 id. a copy of the sweet home central district registration form is available at http://district.shs.k12.ny.us/documents/regpacket1112.pdf. 119 lieberman & ofer, supra note 111. 120 nina bernstein, no visa, no school, many new york districts say, n.y. times, july 23, 2010, at a16. the times general lack of interest in responding to this problem and quoted a ensure that it complies with all laws and decisions regarding student registration . . . . anyone who is aggrieved . . . may appeal to the times nyclu explaining that it is irresponsible for sed officials to wait until school districts deny children their right to enroll in school, and that sed officials must practices. 121 see, e.g., kenneth c. crowe, group cites local schools, ny civil liberties union: questions may hinder immigrant enrollments, times union (july 24, 2010, 1:00 am est), http://www.timesunion.com/local/article/groupcites-local-schools-589095.php;; brian mey immigrants, report cites 13 in region, buffalo news (july 23, 2010, 7:08 pm est), http://www.buffalonews.com/city/article80344.ece;; jennifer gustavson, rocky point school district rethinks enrollment policies, n. shore sun (aug. 6, 2010, 12:00 am), http://northshoresun.timesreview. com/2010/08/683/rocky-point-school-district-rethinks-enrollment-policies/;; editorial, immigration action absurd, leader herald, aug. 5, 2010, http://www.leaderherald.com/page/content.detail/id/524652.html;; dan requirements, ryepatch (sept. 17, 2010), http://rye.patch.com/articles/ryeblind-brook-schools-update-unconstitutional-registration-requirements. 122 p-12 educ., to dist. superintendents 1 (aug. 30, 2010), http://www.p12. http://district.shs.k12.ny.us/documents/regpacket1112.pdf http://www.leaderherald.com/page/content.detail/id/524652.html http://www.p12.nysed.gov/sss/pps/residency/studentregistrationguidance082610.pdf 2012 columbia journal of race and law 210 the guidance explained that while plyler did not expressly address immigration status during the re or discourage undocumented students from receiving a free public 123 of registration, schools should avoid asking questions related to 124 the practices employed by the school districts above range from those clearly intended to impede the access of undocumented children to a public education e.g., the spencerport central school district policy to those that effectively impede access but are not as clearly intended to do so. all of the policies and practices, regardless of their intent, raise serious concerns under the supreme plyler decision. first, many of the above practices make no secret of their requirement that children prove their lawful immigration status to enroll in school. some do it in a direct manner by requiring green cards from non-citizens, while others may do it more surreptitiously, and even unknowingly, by requiring social security numbers for children. regardless of the mechanisms they use to mandate that children prove their immigration status during the enrollment process, these practices violate the fourteenth amendment by denying undocumented children equal access to a free public school education. non-citizens without a green card or social security number would not be able to attend school in these districts. second, even those school districts that do not mandate the production of immigration documents to enroll in school, but simply request such documents as part of the enrollment process, violate the equal protection clause by chilling or discouraging families from accessing a public education for their undocumented children. many parents simply will not register their children for school if they have to admit during the registration process that their child is unlawfully residing in the united states, fearing that such answers could result in arrest and deportation. moreover, few school districts will ever learn of this fear because parents forego nysed.gov/sss/pps/residency/studentregistrationguidance082610.pdf. see also kirk semple, new york asks schools to avoid pupil immigration status, n.y. times, aug. 31, 2010, at a21. 123 memorandum from john b. king, supra note 122, at 1. 124 id. at 1-2. 211 protecting plyler vol. 1:2 even attempting to register their child for school or engaging in a conversation with school administrators about the potential immigration consequences of their answers. parents will take the registration packet home and never return to the school district. b. nonimmigrant children and school enrollment children living in the united states on temporary visas, such as b visas, which are issued for business or pleasure visits to the united states, face unique obstacles to enrolling in school. when congress passed the immigration and nationality act of 1952, it precluded b visa holders from enrolling in school.125 in addition, more recent regulations state that b visa holders violate the terms of their status by enrolling in school.126 any b visa holder who enrolls in a school without first receiving approval and a change in nonimmigrant status to f127 or m128 status is disqualified from subsequently applying for a change in nonimmigrant status.129 but 125 8 u.s.c. § 1101(a)(15)(b) (2006). congress defined a b visa performing skilled or unskilled labor . . .) having residence in a foreign country which he has no intention of abandoning and who is visiting the united states 126 8 c.f.r. § 214.2(b)(7) (2011). in relevant part, this section reads: 1 or b 2 nonimmigrant on or after april 12, 2002, or who files a request to extend the period of authorized stay in b 1 or b 2 nonimmigrant status on or after such date, violates the conditions of his or her b 1 or b 2 status if the alien enrolls in a course of study. such an alien who desires to enroll in a course of study must either obtain an f 1 or m 1 nonimmigrant visa from a consular officer abroad and seek readmission to the united states, or apply for and obtain a change of status under section 248 of the act and 8 cfr part 248. the alien may not enroll in the course of study until the service has admitted the alien as an f 1 or m 1 or m 127 8 c.f.r. § 214.2(f). to study under an f-1 visa, students must demonstrate that they have reimbursed the school district for the cost of providing that education before they can obtain the visa. 128 8 c.f.r. § 214.2(m). m-1 visas are for vocational or other nonacademic programs. 129 see 8 c.f.r. § 248.1(c)(3). this penalization was promulgated by regulation along with § 214.2(b)(7). 67 fed. reg. 18,062, 18,602 to 18,064 (apr. 12, 2002). 2012 columbia journal of race and law 212 since 1952, holders of a b visa violated the conditions of their visa when they enrolled in school.130 the plyler decision made it clear that undocumented children must be provided with the same access to an education as u.s. citizen children and children lawfully admitted to the united states. the supreme court ruled that not having lawful immigration status must not be a barrier to enrolling in school. yet how should school districts treat students who are in the united states lawfully, but are prohibited by the conditions of their visa from enrolling in school? this question is the latest challenge in plyler implementation, as school districts have been denying enrollment to students residing in the united states on temporary b visas or have used b visas as a reason to ask all prospective students for their immigration status.131 one answer to the above question reads plyler as holding tatus must never be a factor when making a decision to enroll a child for a free public school education. proponents of this view, which includes the author, would argue that schools should apply the normal school eligibility 130 8 u.s.c. § 1101(a)(15)(b) (2006). despite this longstanding prohibition, when texas passed its statute (that was struck down by the supreme court in the plyler decision), it created two categories of children to determine school enrollment eligibility: 1) undocumented children and 2) united states citizens and children lawfully admitted to the united states. children on b visas fall into the latter category and would have been eligible to enroll in school under the old texas statute. plyler v. doe, 457 u.s. 202, 205 (1982). the statute denied enrollment to undocumented children only, and made no mention of nonimmigrant children, such as b visa holders. id. children to enroll in school. league of united latin am. citizens v. wilson, 908 f. supp. 755, 789-90 (c.d. cal. 1995). therefore, when the supreme court issued its decision in plyler, it focused its holding on undocumented children and did not directly address the question of nonimmigrant children eligibility, although it did provide guidance in its analysis and reasoning. 131see, e.g., colleen mastony & diane rado, state slaps district that barred teen, chi. trib., feb. 24, 2006, http://articles.chicagotribune.com/2006-02-24/ news/0602240141_1_immigration-status-district-s-school-board-membersschool-district;; andrew trotter, district will stop querying students on immigration, educ. week, mar. 8, 2006, http://www.edweek.org/ew/articles/ deny up to $3.3 million to elmwood park school district for refusing to admit a nonimmigrant child). john w. borkowski, legal issues for school districts related to the education of undocumented children, educ. assoc. 3 (2009), http://www.nea.org/assets/docs/he/09undocumen tedchildren.pdf. 213 protecting plyler vol. 1:2 test which is, traditionally, proof of age, and physical presence and intent to reside in the district when determining a b visa eligibility to enroll in school. therefore, if a family can prove that they reside in a particular school district and intend to stay in that particular district for the duration of the semester or longer (by providing copies of their rental agreements, deed, utility bills, etc.), they should be eligible to enroll a child who meets the age requirements b visa status is irrelevant to this calculation. opponents of this view interpret plyler more narrowly to prohibit the denial of school admission to undocumented children only. such a view would argue that plyler does not apply to immigrant children who lawfully reside in the united states, including children on b visas. proponents of this interpretation point to federal prohibitions on b visa holders to enroll in school as placing an obligation on school districts to ensure that children do not violate the terms of their immigration status when attempting to enroll in school. such school districts insist that they have an affirmative obligation to identify, reject, and even report children on b visas who attempt to enroll in school.132 for example, in 2006, the elmwood school district in illinois denied enrollment to at least two students on b visas. in the first case, the school district denied enrollment to a child from ecuador on a b visa, and the girl eventually left the school district.133 in the second incident, however, a child from the czech republic said that she possessed a b visa but refused to show it.134 the school district refused to enroll her and the girl sued.135 in court, it was revealed that her tourist visa had expired eight years earlier, resulting in her having become undocumented.136 afterwards, the school district enrolled the student.137 the elmwood school district argued that the children with b visas had no right to enroll in school and that the district had the right to ask all applying children about their immigration status, and 132 see, e.g., nina bernstein, no visa, no school, many new york districts say, n.y. times, july 23, 2010, at a16;; mastony & rado, supra note 131. the author of this article has had numerous conversations with school districts and their attorneys claiming an obligation to identify and deny enrollment to such prospective students. 133 trotter, supra note 131. 134 id. 135 id. 136 id. 137 id. 2012 columbia journal of race and law 214 even to report to immigration authorities students on b visas who attempted to enroll in school.138 the district claimed that plyler did not apply to nonimmigrants and that residing in a school district on a tourist visa indicated an intent not to reside permanently in that district.139 the illinois state board of education disagreed with the elmwood school district and voted to revoke $3.3 million in state funding to the district.140 the state board of education argued that the protections of plyler did apply and that the school district acted in an illegal manner.141 general counsel, the school district should not be asking about immigration status because of the chilling effect it might have on undocumented children.142 while the elmwood school district eventually relented and agreed to stop asking children about their immigration status,143 this example illustrates the conflict that current federal law imposes on school districts. on the one hand, the elmwood school district insisted that it was following the law by identifying school applicants living in the united states on b visas and by preventing them from enrolling in school in violation of federal immigration law. on the other hand, by doing so the school district discouraged perhaps even prevented undocumented children from enrolling in school by acting as an immigration enforcement agent and by asking all children questions about their immigration status as a condition for their enrollment in school. the plyler decision did not address directly the question of the eligibility of children on temporary b visas to enroll in school. however, there are at least five compelling reasons why schools must not deny enrollment to b visa holders who violate the conditions of their visa by enrolling in school or use the justification of identifying b visa holders in order to ask all non-citizens, or students, for their immigration status.first, the reasoning of plyler applies to children on b visas. plyler concluded that states violate the fourteenth amendment when they carve out classifications of individuals, based on a particular immigration status for the sole purpose of denying them an important government benefit like a 138 id. 139 trotter, supra note 131. 140 mastony & rado, supra note 131. 141 id. 142 id. 143 id. 215 protecting plyler vol. 1:2 public school education, which the court determined is distinguishable from other government benefits.144 the texas statute challenged in plyler attempted to carve out from the protections of the fourteenth amendment a separate category of undocumented children.145 similarly, school districts may not carve out the category of children on b visas in order to deny them the equal protection of the laws.second, students on b visas violate federal immigration laws by enrolling in school,146 yet like the undocumented children in plyler, they do so through no fault of their own. their parents brought them to the united states on a b visa, and their parents are the ones who then try to enroll them in school. as the court stated in plyler, undocumented children attempting to access a public school education should not be punished for the mistakes of their parents.147 similarly, children on b visas should not be denied the right of equal access to an education based on the wrongdoing of their parents. third, school districts cannot deny enrollment to b visa holders without also chilling the ability of all immigrant children, including undocumented children, to enroll in school. in order to enforce a prohibition against b visa holders, school districts have asked all prospective non-citizen students for their immigration status information during the registration process.148 such questions deter immigrant families from enrolling for fear of revealing their immigration status and for fear that their information will be shared with federal immigration authorities. given the current hostile climate towards immigrants in the united states,149 such fears seem well-founded. therefore, school districts should not ask immigration status related questions during the student enrollment process. fourth, since children on b visas violate the conditions of their visas when they enroll in school, they therefore are in violation of federal immigration laws and fall out of status.150 thus, even a narrower reading of plyler would lead one to conclude that children 144 plyler v. doe, 457 u.s. 202, 230 (1982). 145 id. at 205. 146 see 8 u.s.c. § 1101(a)(15)(b). 147 plyler, 457 u.s. at 219-20. 148 see, e.g., lieberman & ofer, supra note 111 (referencing the policy of the sweet home central district to ask non-citizen children for their visas);; mastony & rado, supra note 131 policy of checking the visa status of its prospective students). 149 see section ii supra. 150 see 8 u.s.c. § 1101(a)(15)(b) (2006). 2012 columbia journal of race and law 216 who violate their b visa status should be afforded the protections of plyler and provided access to a public school education. finally, it is simply impractical for schools to deny enrollment to b visa holders, and it exposes them to significant financial liability.151 first, a child on a b visa easily can overstay his or her visa, the duration of which may be six months to one year152 but which is generally issued for six months. a school district is simply postponing the inevitable by making a child have to wait for months without schooling before they enroll. yet what do school districts receive in return? they receive exposure to financial liability and harm to their reputation, as illustrated in the example from illinois. instead of relying on immigration status information to make determinations regarding residency, school districts should adhere to one residency test for all students, including b visa holders. children on b visas should have to prove their age, and physical residence in a school district, and intent to reside in that school district. if a child on a b visa intends to stay in a particular school district for only a few weeks, then that child should be denied admission. if the child intends to stay in the school district for the duration of the semester, however, then his or her immigration status is irrelevant to the determination of their eligibility to enroll. most states simply have ignored the uncertainties surrounding b visa holders and plyler implementation and have left school districts on their own to figure out their enrollment practices.153 yet numerous states have decided to follow the same practices as new york, illinois, new jersey and pennsylvania and immigration status when registering them for school.154 moreover, 151 see, e.g., mastony & rado, supra note 131 ;; trotter, supra note 131 . 152 8 c.f.r. § 214.2(b)(1) (2011). 153 see, e.g., mary dempsey & art cusano, report: croton-harmon, somers discouraging immigrant enrollment, n. county news (july 23, 2010) ( croton-harmon school superintendent dr. edward r. fuhrman jr. also said there had never been any guidance from the state in the past on student applications but was told the state would be setting guidelines in wake of the 2012]. 154 see, e.g., 22 p.a. code § 11.11 (2004);; n.j. admin. code § 6a:223.3(b) (2006) (prohibiting a school district from requesting immigration documents or conditioning enrollment on immigration status, with an exception for f-1 visas);; opinion by virginia at 217 protecting plyler vol. 1:2 several states have even directly addressed the question of nonimmigrant b visas holders and their eligibility to enroll in school. the 2010 guidance issued by the new york state education department referenced a past decision by the new york state commissioner of education, which stated that holding a nonimmigrant visa must not create an irrebutable presumption that the holder of the visa cannot be a resident of the school district.155 the guidance concluded that determined in accordance with the traditional two-part test for 156 the traditional test is for a child to prove physical presence within the school district and intent to reside in the district.157 both can be proven by children who have nonimmigrant or undocumented status. accept non-immigrant, foreign students on b-1/b-2 visas and are not responsible for ascertaining whether or not seeking enrollment in school 158 a fact sheet from the georgia state education department informs school districts that 159 in 1999, the virginia attorney general issued an opinion addressing similar questions. virginia state senator william c. local school district may inquire into the visa status of a prospective student, and whether children under certain visas, such as b visas, c. mims, apr. 14, 1999, http://www.oag.state.va.us/opinions%20and%20 legal%20resources/opinions/1999opns/index.htm#april_1999 (concluding documentation t purpose of ascertaining whether student is bona fide resident qualified to 155 memorandum from john b. king, supra note 122, at 1 (citing appeal of racquel plata, 40 ed. dept. rep. 552, decision no. 14,555 (holding that b visa holders can enroll in school). 156 id. at 1. 157 id. 158 ga. comp. r. & regs. 160-5-1-.28(2)(b) (2012). 159 ga undocumented students, http://public.doe.k12.ga.us/dmgetdocument.aspx/plyer%20v%20doe%20 fact%20sheet.pdf?p=6cc6799f8c1371f64416c5de5b15e554a467344ac f7436490737a1bf9e13e954&type=d. http://public.doe.k12.ga.us/dmgetdocument.aspx/plyer%20v%20doe%20fact%20sheet.pdf?p=6cc6799f8c1371f64416c5de5b15e554a467344acf7436490737a1bf9e13e954&type=d http://public.doe.k12.ga.us/dmgetdocument.aspx/plyer%20v%20doe%20fact%20sheet.pdf?p=6cc6799f8c1371f64416c5de5b15e554a467344acf7436490737a1bf9e13e954&type=d http://public.doe.k12.ga.us/dmgetdocument.aspx/plyer%20v%20doe%20fact%20sheet.pdf?p=6cc6799f8c1371f64416c5de5b15e554a467344acf7436490737a1bf9e13e954&type=d 2012 columbia journal of race and law 218 school education.160 school board is not permitted to inquire into, or require status for purpose of ascertaining whether student is bona fide 161 the attorney general concluded that school districts are prohibited 162 also has recognized that school districts us. the section explains: 19. can a foreign student attend school in texas when he enters the country with a tourist visa? a foreign student cannot attend texas public schools on a full-time basis with a tourist visa as this would be in violation of his/her visa status. however, the school district cannot deny the student enrollment on the basis of his/her visa status. the student only has to demonstrate eligibility to enroll under a provision of tec §25.001 [traditional eligibility test].163 the previously mentioned laws and guidance from state authorities recognize the inherent conflict in federal law regarding the eligibility of students on temporary status to register for school. yet these state laws also recognize that underlying intent is to protect innocent children from being denied an education, and therefore, c. student tracking proposals the latest attempts being pushed forward by state lawmakers looking to restrict immigrant access to a public school education involve requiring that school districts track undocumented children who attend school and report information on undocumented students to state officials, who are then mandated 160 opinion by virginia attorney general to state sen. william c. mims, supra note 154. 161 id. 162 id. 163 texas education agency, foreign exchange students frequently asked questions question 19, http://www.tea.state.tx.us/index2.aspx?id=5771# 19%29 (last visited jan. 22, 2011). http://www.tea.state.tx.us/index2.aspx?id=5771#19%29 http://www.tea.state.tx.us/index2.aspx?id=5771#19%29 219 protecting plyler vol. 1:2 to determine the fiscal impact of providing an education to undocumented children. while these proposals do not overturn plyler directly, at least some advocates have made it clear that they see these laws as a first step in a larger strategy to overturn the plyler decision, including by building the evidentiary basis to allow for opponents to argue that providing an education to undocumented immigrants has a substantial fiscal impact on school districts.164 in 2010, lawmakers in the arizona state legislature introduced a bill in the house and senate that would mandate that 165 the legislation also would require that the arizona department of education report on the costs associated with educating undocumented children, including the number and cost of teachers employed and general operating expenses associated with educating undocumented children.166 in maryland, lawmakers also have introduced legislation to mandate that counties count the number of undocumented children in public schools.167 the legislation would require that public schools count the number of enrolled students who did not present documentation proving their lawful status in the united states.168 state senator david r. brinkley (rof educating undocumented children.169 the maryland legislation is supported by an organization called help save maryland, which contends that the count is needed because the residents of maryland are forced to pay for the education of undocumented children.170 164 campbell robertson, immigration law, n.y. times, oct. 27, 2011, available at http://www.nytimes. com/2011/10/28/us/alabama-immigration-laws-critics-question-target.html. 165 sb 1097, 49th leg., 2d. reg. sess. (ariz. 2010). 166 hb 2382, 49th leg., 2d. reg. sess. (ariz. 2010). 167 sherry greenfield, brinkley wants count of illegal immigrants in schools, bill would broaden legislation that would apply only to frederick county, gazette.net, jan. 27, 2011, http://www.gazette.net/stories/01242011/fred new162103_32554.php. 168 md. bill would force undocumented student count, associated press, jan. 24, 2011. 169 id. 170 sherry greenfield, proposal to count illegal immigrants criticized, casa , frederick gazette, feb. 3, 2011, http://www.gazette.net/stories/0203 2011/frednew165951_32541.php. 2012 columbia journal of race and law 220 in 2008, the frederick county board of commissioners in maryland requested a ruling from the maryland state board of to collect data that would tend to support whether a student is 171 this occurred at the same time that the commissioners proposed counting the number of 172 an attempt would be unconstitutional absent a valid purpose.173 in march 2009, the state board of education adopted the same standard and found budget (whether large or small) is not a valid public purpose under the ruling and reasoning of plyler v. doe 174 the board of education ruled that the cou immigration status.175 in texas, state lawmakers have introduced similar legislation to require that public schools count all undocumented students that they enroll.176 the bill does so by requiring that school districts collect information on each student to determine whether they are lawfully present in the united states.177 according to the primary sponsor of the legislation, state rep. debbie ridder (r-tomball), the purpose of the bill is to determine how much money texas spends on educating undocumented children.178 as one parent passes, a lot of parents are going to perceive schools as immigration 179 171 the md. state board, opinion no. 09-11, at 1, mar. 24, 2009, available at http://www.mnsmd.org/files/state-board-opinions/frederick%20county% 2009-11.pdf. 172 id. at 1. 173 id. at 6. 174 id. see also megan miller, help stop underage drinking state school board bars frederick illegal immigration checks, s. md. online, mar. 24, 2009, http://somd.com/news/headlines/2009/9692.shtml;; sherry greenfield, new county commissioners will tackle immigration issue, gazette.net, oct. 21, 2010, http://www.gazette.net/stories/10212010/frednew162104_32540.php. 175 miller, supra note 174. 176 ahsika sanders, students tackle anti-immigrant bills, the daily texan, jan. 25, 2011, http://www.dailytexanonline.com/news/2011/01/25/ students-tackle-anti-immigrant-bills (second of a three-part series). 177 h.b. 22, 82nd leg. (tex. 2011). 178 sanders, supra note 176. 179 id. 221 protecting plyler vol. 1:2 at the time of the writing of this article, the most aggressive tracking proposal to become law comes from the state of alabama. on june 2, 2011, the alabama state legislature approved the beason-hammon alabama taxpayer and citizen protection act, h.b. 56. 180 the law contains provisions similar to those passed by arizona,181 including those requiring that police officers make a reasonable attempt to determine the immigration status of a person stopped, detained, or arrested if there is reasonable suspicion that the person is in violation of federal immigration law;;182 imposing state criminal penalties for non-citizens who fail to carry their immigration documents;;183 and banning undocumented immigrants from applying for, soliciting, or performing work.184 section 28 of the alabama law includes an aggressive tracking proposal that mandates that every public elementary and secondary school in the state determine if a child seeking to enroll in school was born outside of the united states or is the child of an undocumented parent.185 children who cannot produce a birth certificate proving that they were born in the united states, or who are children of undocumented parents, have to notify the school, either through official documentation or attestation by the parent, of their immigration status.186 if the parent does not provide such documentation or declaration within 30 days of enrollment then the school must presume that the child is undocumented.187 the law also mandates that the alabama state board of education compile data on the number of children who do not prove their immigration status and standard or quality of education provided consequence of enrolling undocumented children.188 both the federal government and several private parties have challenged the alabama law, and a federal district court granted a preliminary 180 beason-hammon alabama taxpayer and citizen protection act, 2011 ala. acts. 535 [hereinafter h.b. 56]. 181 support our law enforcement and safe neighborhoods act, ch. 113, 2010 ariz. legis. serv. 369 (west) (2010). as of the writing of this article, the united states supreme court was scheduled to rule on the 182 h.b. 56 § 12. 183 id. § 10. 184 id. § 11. 185 id. § 28. 186 id. § 28(a)(3)-(a)(4). 187 id. § 28(a)(3), (a)(5). 188 h.b. 56 § 28(b)-(d). 2012 columbia journal of race and law 222 injunction on some of the provisions contained in h.b. 56, but not section 28.189 the federal government and the private parties then moved to enjoin pending appeal the sections not enjoined by the district court,190 and the united states court of appeals for the eleventh circuit granted in part the motions, including the motion to enjoin section 28 based on preemption grounds.191 as of the publication of this article, the fate of the law remained unclear. even though the aforementioned proposals and laws would not overturn plyler directly, they would deter families from enrolling their children in school for fear that their immigration information would be shared with federal authorities. undocumented parents or children will avoid registering for public school for fear of arrest and deportation. even u.s. citizen children will be deterred from enrolling in school based on fear that their parents will face deportation. indeed, the collection of data about the immigration status of parents reveals the true intent behind this law it is not necessarily to assess the impact of educating undocumented children, but to prevent mix-status families from enrolling their children in public schools. the plyler decision prohibits actions by school districts that would chill or discourage families from registering their undocumented children for school. school policies or practices that have the effect of preventing undocumented children from having equal access to an education violate the fourteenth amendment. iv. conclusion and recommendations school districts continue to be confused about their obligations under plyler v. doe. on the one hand, they are not immune to t immigration system and thus face tremendous pressures to crack down on individuals who break federal immigration laws. on the other hand, the supreme court has ruled that states must not deny the equal protection of the laws to a subclass of children based 189 united states v. alabama, 443 f. app 411, 414 (11th cir. 2011). the federal government argued that the challenged provisions in the alabama law were preempted under the supremacy clause, while the private parties added fourth amendment and fourteenth amendment equal protection clause arguments to their challenge to several of the provisions. id. at 414 n5. 190 id. 191 id. at 420. the court did not rule on the equal protection challenge by the private parties on mootness grounds. 223 protecting plyler vol. 1:2 solely on their immigration status, and that undocumented children have the right of equal access to a public school education. on may 6, 2011, the united states department of justice to all school districts to clarify their obligations under plyler and federal anti-discrimination laws.192 the guidance came in response to concerns raised by civil liberties and civil rights advocates in new york and other states about school districts adopting enrollment practices that chill or discourage immigrant children from registering for school.193 the guidance reminded school districts of their obligations ic education at the 194 the letter warned against immigrant student registration, and reminded school districts that -citizen status of a student (or his or her 195 the guidance immigration or citizenship status of a student or parent as a means 196 the first time in thirty years that the federal government has provided guidance to school districts about their obligations under plyler to provide immigrant children with equal access to an education.197 the justice and education departments must be commended for issuing this guidance. 192 mas e. perez, dear colleague letter on the rights of all children to enroll in public schools, may 6, 2011, http://www.justice.gov/crt/about/edu/documents/plyler.php. 193 id. 194 id. 195 id. 196 questions and answers for school districts and parents, may 6, 2011, available at http://www.justice.gov/crt/ about/edu/documents/plyler.php 197 kirk semple, u.s. warns schools against checking immigration status, n.y. times, spokeswoman, said it was the first time her agency had issued guidance to school districts on the 1982 [plyler http://www.justice.gov/crt/about/edu/documents/plyler.php http://www.justice.gov/crt/about/edu/documents/plyler.php http://www.justice.gov/crt/about/edu/documents/plyler.php 2012 columbia journal of race and law 224 however, while it is too early to fully understand the impact of this actio opportunity to address more directly some additional obstacles that immigrant children face when attempting to enroll in school. moreover, the guidance will only be as effective as the monitoring of school district policies and practices. therefore, the federal government should take the following additional steps. first, the doj and doe must instruct school districts to refrain from denying prospective students a free public school education because of a c establishing residency in a particular school district and therefore a chil it fails to explicitly bar school districts from refusing enrollment of students on b visas. the doj and doe should have included such an explicit prohibition for the following reasons: (a) the reasoning behind plyler applies to children on b visas. plyler concluded that states must not deny the equal protection of the laws to a subclass of children based solely on their immigration status.198 attempt to carve out the category of undocumented children from the protections of the fourteenth amendment.199 similarly, school districts must not deny the category of b visa holders the equal protections of the laws;; (b) the court reasoned that children should not be punished for the mistakes of their parents.200 like the undocumented children in plyler, children on b visas violate the terms of their status through no fault of their own. therefore, children on b visas should not be denied the right to equal access to an education based on the wrongdoing of their parents;; (c) school districts cannot deny enrollment to b visa holders without also chilling the ability of all immigrant children, including undocumented children, to enroll in school;; and (d) school districts are under no obligation to enforce federal immigration laws, including prohibitions on b visa holders to enroll in school. on the contrary, doing so is not only discriminatory, but impractical and expensive. instead of relying on immigration status information to make determinations regarding residency, school districts should adhere to one residency test for all students, including b visa holders. 198 plyler v. doe, 457 u.s. 202, 230 (1982). 199 id. at 205. 200 id. at 219-20. 225 protecting plyler vol. 1:2 second, the doj and doe must create brighter lines between what information may be asked prior to enrollment and what information may be asked post-enrollment. for example, the social security number at enrollment.201 since undocumented children are ineligible for a social security number, the guidance also states, rightfully so, that school districts must not deny enrollment to students who do not provide a social security number.202 yet the mere act of requesting a social security number during the enrollment process creates a chilling effect on the right of immigrant children to enroll in school. this effect could have been avoided easily. the federal guidance should have stated that school districts after enrollment.203 the same holds true for school districts that are under obligation to report personal data, including about immigrant demographic information and language abilities.204 while the reporting of such data is important, the information collected for reporting purposes should be done after the student is already enrolled in school in order to avoid any inadvertent chilling effect.205 third, the doj and doe should issue model enrollment forms for schools to adapt to their own needs. such forms should not be made mandatory on school districts, but should be provided as guidance on how to ensure that schools receive the information they need to determine eligibility to enroll in school, while avoiding constitutional and statutory violations. schools then could adapt such model forms to local and state uses easily. 201 ali, rose, & perez, supra note 192. 202 id. 203 availability of a social security number should serve no purpose for determining eligibility for enrollment, and is likely asked for in order to create an identification number for a student. 204 for example, in order to receive funding for language instruction for limited english proficient and immigrant students under title iii of the elementary and secondary education act, as amended by the no child left behind act, states and school districts must collect and report on immigrant children served. see 20 u.s.c. § 6961 et seq.;; see also no child left behind act of 2001, pub. l. no. 107-110, 115 stat. 1425. 205 the questions and answers document that accompanied the dear colleague letter recognized that asking for certain types of information prior to enrollment may have a chilling effect, but it stopped short of recommending that districts wait until after enrollment to ask for such information. supra note 196. 2012 columbia journal of race and law 226 finally, for the guidance to be effective, the doj and doe practices and hold accountable those districts that erect barriers for immigrant students attempting to enroll in school. in addition, the federal government should conduct a nationwide study of local registration practices to ensure compliance with plyler and other civil rights and civil liberties protections. regular audits of school districts must also be performed to determine compliance with federal law. the burden should not be on immigrant families and constitutional and statutory protections. compassion and critique angela p. harris * introduction where does compassion begin? perhaps with the experience of caring. caring happens in the body and in the moment: a quick squirt of oxytocin, a firing of mirror neurons, the sudden perception of a link between the socalled self and the so-called other. caring is unpredictable and unwilled, a reaction, an eruption along the shifting surfaces between you and not-you, suddenly experienced in the “flinching of an eye.” kathleen stewart describes an observer’s emotional reaction to the pain of another: the young miner who showed me the mine put out every cigarette he smoked on his hand, which was covered with scar tissue. then i saw the other young miners all had the backs of their hands covered with scar tissue . . . when my eye fell on them it flinched, seeing the burning cigarette being crushed and sensing the pain . . . . the eye does not read the meaning in a sign; it jumps from the mark to the pain and the burning cigarette, and then jumps to the fraternity signaled by *  professor of law, university of california—davis (king hall). although the participants in this symposium were instructed to reflect on race and marxism, i found myself reflecting instead on the work of the symposium’s organizer, anthony paul farley. his classic treatment of the pleasures of anti-black racism, the black body as fetish-object, 76 or. l. rev. 457 (1997), continues to instruct all who read it, and his writing and speaking—laced always with compassion and outrage—reminds me to watch out and take care. i also wish to thank caitlin sislin, who first drew my attention to the opinion in navajo nation v. u.s. forest service, 535 f.3d 1058 (9th cir. 2008), and tucker culbertson, who provided helpful comments on an early draft of this essay and whose work constantly pushes me to question the boundary of “the human.” blunders are all mine. 327 compassion and critique vol. 1:3 the burning cigarettes.1 but compassion also passes through judgment. the bodymind, flinching and sparked, engages with the norms that tell us how to feel, or not, and what to do, or not. there is a struggle, or a series of choices: to suffocate the spark or to fan it into a flame that may set others alight through emotional contagion; to decide that what looked like suffering was actually something else: reflex, perhaps, or cold calculation; to conclude that the suffering is too overwhelming, too immense, or too baffling to address, and so to turn uneasily away.2 these choices suggest that compassion has a relationship with critique. harriet beecher stowe, in the final chapter of uncle tom’s cabin, addresses her readers in the north directly about their role in slavery: do you say that the people of the free state[s] have nothing to do with it, and can do nothing? would to god this were true! but it is not true. the people of the free states have defended, encouraged, and participated; and are more guilty for it, before god, than the south, in that they have not the apology of education or custom . . . . but, what can any individual do? of that, every individual can judge. there is one thing that every individual can do,—they can see to it that they feel right. an atmosphere of sympathetic influence encircles every 1  kathleen stewart, ordinary affects 40 (2007) (quoting alphonso lingis, the society of dismembered body parts, in deleuze and the theatre of philosophy 296 (constantin boundas & dorothea olkowski eds., 1993)). 2  i draw here on the work of sociologist candace clark, who argues that “empathy,” or “feeling with” another sentient being, can occur in three different modes: cognitive, physical, and emotional. candace clark, misery and company: sympathy in everyday life (1997). if we take the example of empathizing with another’s pain, cognitive empathy means recognizing intellectually that the other is feeling pain. id. at 36-37. physical empathy refers to the physical reactions found in witnesses to suffering— trembling, rapid heartbeat, nausea, or tears. id. at 37. emotional empathy, which is closely intertwined with physical empathy, is the subjective feeling that ordinarily accompanies physical empathy—the sense that one is “feeling another’s pain,” or at least experiencing a direct emotional response that seems to resonate with the suffering of another. id. these three types of empathy apparently can occur either simultaneously or in stages. id. at 38. culture, in the form of social norms, narratives, and rules, obviously may influence the experience of empathy in all three of its modes, and clark devotes much of her book to explaining the social rules of empathy in different settings. 2012 columbia journal of race and law 328 human being; and the man or woman who feels strongly, healthily and justly, on the great interests of humanity, is a constant benefactor to the human race. see, then, to your sympathies in this matter! are they in harmony with the sympathies of christ? or are they swayed and perverted by the sophistries of worldly policy?3 marx famously wrote, “the philosophers have only interpreted the world, in various ways; the point is to change it.”4 critical theory differs from pure philosophy in its motivation to provoke change, and thus it necessarily traffics in the emotions.5 challenging power relations, as critical theorists love to do, means provoking anger, disquiet, anxiety, and even fear in those with a settled understanding of who they are and where they belong. but 3  harriet beecher stowe, uncle tom’s cabin: or, life among the lowly 476 (1852). 4  karl marx, theses on feuerbach, in marx-engels selected works, vol.1, at 13, 15 (1969). 5  following maroney, i will use “emotions” as an umbrella term that includes feelings, moods, and affect. see generally terry a. maroney, law and emotion: a proposed taxonomy of an emerging field, 30 law & hum. behav. 119 (2006) (establishing a rubric for understanding the legal relevance of emotion) [hereinafter maroney, law and emotion]. see also terry a. maroney, emotional competence, rational understanding, and the criminal defendant, 43 am. crim. l. rev. 1375, 1401 (2006) [hereinafter maroney, emotional competence]. emotions are subjective psychological states associated with specific physiological processes. a small list of basic emotions including sadness, surprise, joy, and anger, is believed to be experienced by all humans and some nonhuman animals. (the number and definition of these core emotions differ, however, depending on who is making the list. see maroney, emotional competence, supra note 5, at 1402 n.147.) the basic emotions can be combined in elaborate and various ways. people can experience several emotions at once: in english, we speak of having “mixed feelings.” there are also complicated and subtle emotions, sometimes generated by life in a particular place or time, which not everyone may experience. an example is the german term schadenfreude, usually defined as the pleasure one feels in someone else’s misfortune. it is even possible to have emotions about emotions: to feel ashamed of feeling ashamed, for instance, or guilty for feeling happy. emotions can be dissected into component parts. the term “feelings” describes the subjective experience of an emotion. the term “mood” is generally used to describe a more diffuse subjective state, not necessarily tied to a single emotion. for instance, people with bipolar disease often swing between two families of emotions, or moods—excitement, euphoria, benevolence, and joy on the one hand, and sadness, apathy, despair, and anxiety on the other. the term “affect” is used both to evaluate emotions (as in the distinction between “positive” and “negative” affect) and to refer to the outward expression of a feeling state (for example, a person with a “flat affect” is someone who appears to others to be lacking in emotion). maroney, emotional competence, supra note 5, at 1402. 329 compassion and critique vol. 1:3 critical theorists are motivated not only by the desire to provoke and unsettle,6 but also by the desire to provoke compassion. stowe can justly be criticized for implying that “feeling right” is sufficient. compassion, however, is not the same as pity; it is the desire to relieve another’s suffering, the desire to act.7 compassion, that is to say, may sometimes begin in critique. in this essay, i am interested in the relationship among ideology, ideological critique, and emotion. i argue that the ideological critique produced by marx in the nineteenth century and by critical legal theorists in the twentieth and twenty-first centuries undertakes not only to persuade our minds but also to rally our emotions. to accomplish this, critical theorists show us that ideology is already a technique of emotion management. ideology makes suffering invisible and compassion inappropriate by assuring us that the status quo is natural, normal, and necessary. ideological critique, in turn, reveals the suffering beneath the bland façade of ideological concepts like “capital” and “property.” it tries to persuade us, moreover, that this suffering is unjust and unnecessary: that politics and not nature is its source, and that we should act to relieve it. like marx, critical race theorists therefore want us to care about the subordinated.8 yet several pitfalls await. first, caring 6  for a classic text on the joy of “trashing,” a technique employed in critical legal studies, see mark kelman, trashing, 36 stan. l. rev. 293 (1984). 7  i follow andrew taslitz (who in turn follows paul ekman and the dalai lama) in defining compassion as “the active desire to relieve another’s suffering.” see andrew taslitz, why did tinkerbell get off so easy? the roles of imagination and social norms in excusing human weakness, 42 tex. tech l. rev. 419, 426 (2009). compassion is, as taslitz suggests, somewhere between an emotion and a character trait: it must be cultivated to be reliably experienced, but once it is deeply rooted in one’s being it takes on the perceptual, evaluative, and motivational characteristics of an emotion. id. at 427. see also paul ekman & the dalai lama, emotional awareness: overcoming obstacles to psychological balance and compassion: a conversation between the dalai lama and paul ekman, ph.d. 166 (2008) (describing compassion as a combination of the desire to relieve suffering and the courage to do whatever is necessary in one’s own life to bring this about). 8  in this essay, i will use the term “caring” to refer to at least two clusters of emotions. first, and more broadly, caring refers to the feelings, moods, and affects associated with concern for another for the other’s own sake. the defining characteristic of this concern is a decentering of the self: when we care about someone or something, we want it to flourish regardless of whether that flourishing has instrumental value for us. a paradoxical result of setting one’s narrow interests aside is that caring enlarges the self. if i care 2012 columbia journal of race and law 330 must be connected to moral outrage to produce a commitment to action. caring without outrage is only merely pity, an emotion that requires no action, only the feeling of sympathy. critical theorists must strive to cultivate indignation as well as caring in their readers’ hearts. a second pitfall is related to the first. observing the suffering of others may provoke compassion, but it may also reinforce a sense of their inferiority, their need for our charity. conversely, a politics rooted in displays of suffering threatens to become “therapeutic,” a politics in which the subordinated seek only public recognition of their wounds and a sense of moral superiority rather than the transformation of social relations.9 third, critical theory must simultaneously convince us that injustice is everywhere, and that change is possible. critical race theory, for example, takes the position that racism pervades our institutions, our beliefs, and our everyday practices.10 critical race theorists thus reject the view that racism can easily be rooted out of our lives. yet to join the battle seems to require some optimism that improvement is possible. critical race theory thus walks, along with its readers, a thin line between hope and despair. i. emotional reasoning emotions are increasingly of interest to legal scholars as well as scientists.11 law has long distrusted emotion, treating it as the opposite of rationality.12 but researchers are coming to understand that emotions are deeply embedded in reason. they influence what about you, then good things that happen to you will make me happy too, as if they had happened to me. in a sense, what counts as “me” has expanded through my caring about you—even though that expansion was not my intention. second, and more narrowly, when i refer to caring i mean the feelings, moods, and affects associated with compassion as discussed in maroney, law and emotion, supra note 5. 9  see generally wendy brown, states of injury: power and freedom in late modernity 52 (1995) (explaining how the portrayal of victims as helpless and in continual need of governmental protection can cause further harm and disempowerment). 10  see kimberlé crenshaw, race, reform, and retrenchment: transformation and legitimation in antidiscrimination law, 101 harv. l. rev 1331, 1336 (1988) (“[r]acism is a central ideological underpinning of american society.”). 11  see generally maroney, law and emotion, supra note 5. 12  see sharon r. krause, civil passions: moral sentiment and democratic deliberation 21 (2008) (“[t]he whole purpose of law, it is often thought, is to regulate unruly affect through the application of coolheaded cognition.”); see also susan a. bandes, the passions of law (1999). 331 compassion and critique vol. 1:3 we perceive and how we perceive it.13 they help us appraise the value of what we perceive: emotional evaluation is what we mean when we distinguish between “knowing” something and “understanding” or “appreciating” it. finally, emotions are the engines of action. they drive us to act, help us make and implement choices, and orient our goals. from this perspective, emotions are not opposed to, but rather central to what we mean by “reason” or “rationality.” this approach to emotion has implications for critical theorists, who aim to identify and expose “ideology.” for our purposes, ideology is a cluster of ideas, beliefs, and associations, either consciously held, unconsciously held, or unexamined—taken as “common sense.” this ideology, in alan hunt’s words, “provides a justification or legitimation for the interests of the dominant class in society in terms of some higher and apparently universal interest of all classes.”14 according to e.b. thompson, law itself is ideological, to the extent that it allies itself with justice while masking, when necessary, actual injustice.15 critical legal theorists have described this as the “legitimation function” of law: every conflict is an opportunity for lawyers to declare that “the 13  see maroney, emotional competence, supra note 5, at 1407 (“[n]ot only is emotion not the natural enemy of rationality, it is intimately connected to the perception and processing of information, appraisal of value, formation of goals, motivation of behavior, and implementation of choice”). 14  alan hunt, explorations in law and society: towards a constitutive theory of law 121 (1993). 15  e.p. thompson, whigs and hunters: the origin of the black act 263 (1975) (“if the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony. the essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just. it cannot seem to be so without upholding its own logic and criteria of equity: indeed, on occasion, by actually being just.”). thurman arnold makes a similar claim even more forcefully, arguing “[t]he function of law is not so much to guide society, as to comfort it . . . though the notion of a ‘rule of law’ may be the moral background of revolt, it ordinarily operates to induce acceptance of things as they are. it does this by creating a realm somewhere within the mystical haze beyond the courts, where all our dreams of justice in an unjust world come true . . . . from a practical point of view it is the greatest instrument of social stability because it recognizes every one of the yearnings of the underprivileged, and gives them a forum in which those yearnings can achieve official approval without involving any particular action which might joggle the existing pyramid of power.” thurman arnold, the symbols of government 34-35 (1935). 2012 columbia journal of race and law 332 system works.”16 but we need not wander into the thickets of trying to evaluate the legitimacy of the legal system as a whole to see the point that legal rules may serve an ideological function. when human beings could be bought, sold, bequeathed, rented, and mortgaged, the ability to do these things shaped understandings of property and of personhood. when legal rules incorporate ideology, they help legitimate privilege in the guise of reflecting truth. critical legal theorists are committed to discovering and de-legitimating this kind of hidden privilege. understanding emotion and reason as inextricable helps us see that if discovering that seemingly neutral rules, practices, or institutions benefit one group at the expense of another fills the reader with outrage or anger and inspires her to act, critical legal theory is an emotional as well as an intellectual project.17 this understanding of critical legal theorists as emotional entrepreneurs,18 and the importance of the emotional dimension of ideology critique, has a history. stowe’s aim of getting her readers to “feel right” stemmed from, and built on, an eighteenth-century english development that karen halttunen calls the “culture of sensibility.”19 nineteenth-century americans adopted this culture of sensibility, drawing on it to develop a language of rights. elizabeth clark argues, for instance, that stories describing “the suffering slave” became popular with northern readers in 1830s america, and helped contribute to the idea that freedom from pain and coercion 16  see crenshaw, supra note 10, at 1352. 17  even the critical theorist’s signature interpretive method—the “attempt[] to expose hidden meaning from the person making the expression and not the expression itself—is known by its association with a mood: the “hermeneutics of suspicion.” see andrew f. sunter, twail as naturalized epistemological inquiry, 20 can. j.l. & juris. 475, 498 (2007). paul ricoeur originally coined the phrase to describe the interpretive methods of freud, marx, and nietzsche. id. at 499-500. 18  here, i am expanding the term “sympathy entrepreneurs,” which clark uses to describe individuals and organizations that consciously “help[] to set the cultural parameters of what we recognize as plights.” clark, supra note 2, at 85. 19  see karen halttunen, humanitarianism and the pornography of pain in anglo-american culture, 100 am. hist. rev. 303 (1995). halttunen argues that “[t]he culture of sensibility steadily broadened the arena within which humanitarian feeling was encouraged to operate, extending compassion to animals and to previously despised types of persons including slaves, criminals, and the insane and generating a reformist critique of forms of cruelty that had once gone unquestioned.” id. at 303. 333 compassion and critique vol. 1:3 was a fundamental human right.20 in the twentieth century, eva illouz argues, the language of psychology infiltrated popular culture, the home, and the workplace.21 we now live in a “culture of therapy” in which skillfully identifying, expressing, and managing one’s emotions is an important marker of middle-class status. ensuring that we “feel right” is thus a cultural preoccupation that embraces, and extends well beyond, law and legal theory. ii. capitalism, ideology, and emotion marx’s dazzling analysis of capitalism and his conviction that the laws of historical materialism would bring on the revolution of the proletariat as inevitably as the sun rises are still riveting to contemporary theorists. one reason is his skill at describing suffering and evoking compassion. his concepts of alienation and commodity fetishism draw the reader’s attention to the worker’s body and mind, revealing suffering and the system’s attempt to deny or make invisible that suffering. in marx’s view, under capitalist production the worker is alienated (or “estranged”) from the product of her labor and also from the process of production. “alienation” means, among other things, the disruption of a kind of behavior that marx identified as inherent to human nature (which he called “species-being”).22 for marx, intrinsic to human speciesbeing is the capacity and urge to make things and, in the process, to re-create oneself and all of nature; as marx put it, man makes his life-activity itself an object of his will.23 under capitalist production, however, the worker no longer experiences her labor as her own: it belongs to someone else, and the harder she works, the less of herself she owns.24 the product of her labor, the commodity— 20  elizabeth b. clark, “the sacred rights of the weak”: pain, sympathy, and the culture of individual rights in antebellum america, 82 j. am. hist. 463, 463 (1995). 21  see generally eva illouz, saving the modern soul: therapy, emotions, and the culture of self-help 1 (2008). 22  see karl marx, estranged labor, in economic and philosophical manuscripts of 1844, reprinted in the political theory reader 137, 138 (paul schumaker ed., 2010). 23  id. at 139. 24  id. at 138 (“the alienation of the worker in his product means not only that his labor becomes an object, an external existence, but that it exists outside him, independently, as something alien to him, and that it becomes a power of its own confronting him; it means that the life which he has conferred on the object confronts him as something hostile and alien”). 2012 columbia journal of race and law 334 described by marx as nothing but “congealed labor”—similarly appears alien to the worker25. this alienation produces a deep unhappiness: [i]n his work, therefore, he does not affirm himself but denies himself, does not feel content but unhappy, does not develop freely his physical and mental energy but mortifies his body and ruins his mind. the worker therefore only feels himself outside his work, and in his work feels outside himself. he is at home when he is not working, and when he is working he is not at home. his labor is therefore not voluntary, but coerced; it is forced labor.26 following marx, contemporary theorists have suggested that workers suffer not only from having their creativity thwarted, but from having their own emotionality turned into a commodity. feminist sociologists, following arlie hochschild, have named “emotional labor” as a vivid example of alienation.27 many service jobs require laborers to produce an emotional experience for the customer. flight attendants, waitresses, professional escorts, nurses, retail and childcare workers, disneyland employees, sex workers, and therapists of various kinds, are required to seem to care, and in laboring to do so, may experience an exhausting disconnect between their smiling, laughing, flirting bodies and their subjective emotional state, which may be boredom, sadness, numbness, or anger. this is alienation: not only from the other (because the caring connection does not feel real to the person affecting to care), but also from the self (because the person affecting to care experiences the body-mind itself as fragmented, lacking integrity, “inauthentic”).28 25  id. at 137. 26  id. at 138. 27  see, e.g., arlie hochschild, the managed heart: commercialization of human feeling 7 (1985). 28  when caring is commodified, workers may experience another kind of disconnect: between their subjective experience of caring and their impulse, directed by the incentive structure of their employment, to function as a rational profit-maximizer. nancy folbre and katherine silbaugh, for instance, argue that women’s emotional labor is hyper-exploited in the workplace and the home because women are supposed to accept caring as its own reward. in a capitalist context, this produces the worst of both worlds: women are materially exploited if they work for less than their labor is worth, but if they attempt to negotiate adequate wages, they are shamed as heartless and uncaring. see generally nancy folbre, the invisible heart: economics and family values (2002); nancy folbre & m.v. lee badgett, 335 compassion and critique vol. 1:3 the pain and disorientation caused by these internal contradictions and physical and emotional suffering, marx thought, would eventually rouse workers to rebel against the capitalist system itself. while workers constantly do rebel in large and small ways against the conditions of their employment–finding ways to “get by” or “get back,” instigating or joining unions—the global revolution marx expected has not materialized. instead, two other emotional phenomena marx identified, which he called “human nature alienation” and “fellow beings alienation,” have pervaded the social world. these forms of alienation not only create suffering, but inhibit compassion. under human nature alienation, the body-mind energetic reaction of caring, denied expression in acts of creation, may be turned perversely toward destruction. for instance, the industrial production of food leads to conditions in slaughterhouses and farms that make caring for and about animals difficult. huge numbers of animals are crammed into small spaces and raised in a short span of time, with technology replacing human labor whenever possible. jonathan safran foer interviews a slaughterhouse worker about the feelings associated with killing animals on an industrial scale and finds that frustrated caring can become a form of worker suffering: the worst thing, worse than the physical danger, is the emotional toll. if you work in the stick pit for any period of time, you develop an attitude that lets you kill things but doesn’t let you care. you may look a hog in the eye that’s walking around down in the blood pit with you and think, god, that really isn’t a bad-looking animal. you may want to pet it. pigs down on the kill floor have come up and nuzzled me like a puppy. two minutes later i had to kill them—beat them to death with a pipe . . . . when i worked upstairs taking hogs’ guts out, i could cop an attitude that i was working on a production line, helping to feed people. but down in the stick pit i wasn’t feeding people. i was killing things.29 assigning care: gender norms and economic outcomes, 138 int’l labour rev. 273 (1999); katherine silbaugh, turning labor into love: housework and the law, 91 nw. u. l. rev. 1 (1996). 29  jonathan safran foer, eating animals 254 (2010). as foer describes the process at a typical slaughter facility: [c]attle are led through a chute into a knocking box—usually a large 2012 columbia journal of race and law 336 in some cases, frustrated caring can become cruelty. foer notes that when slaughterhouse expert temple grandin first began to record abuses against animals, she “reported witnessing ‘deliberate acts of cruelty occurring on a regular basis’ at 32 percent of the [slaughterhouses] she surveyed during announced visits in the united states.”30 despite subsequent improvements, in a more recent survey of beef plants, grandin found that twenty-five percent of the slaughterhouses she visited had abuses so severe that they automatically failed her audit.31 as an example, grandin describes a worker “dismembering a fully conscious cow, cows waking up on the bleed rail, and workers ‘poking cows in the anus area with an electric prod.’ ”32 the final form of alienation marx identified is fellow-beings alienation, under which capitalism weakens humans’ emotional ties to one another.33 the opposed interests of owner and worker clearly encourage this alienation, for one’s profit is the other’s loss. cylindrical hold through which the head pokes. the stun operator, or ‘knocker,’ presses a large pneumatic gun between the cow’s eyes. a steel bolt shoots into the cow’s skull and then retracts back into the gun, usually rendering the animal unconscious or causing death . . . . in twelve seconds or less, the knocked cow—unconscious, semiconscious, fully conscious, or dead—moves down the line to arrive at the ‘shackler,’ who attaches a chain around one of the hind legs and hoists the animal into the air. from the shackler, the animal, now dangling from a leg, is mechanically moved to a “sticker,” who cuts the carotid arteries and a jugular vein in the neck. the animal is again mechanically moved to a “bleed rail’ and drained of blood for several minutes. . . . the cow should now be carcass, which will move along the line to a “head-skinner,” which is exactly what it sounds like—a stop where the skin is peeled off the head of the animal . . . . after the head-skinner, the carcass (or cow) proceeds to the ‘leggers,’ who cut off the lower portions of the animal’s legs. . . . the animal then proceeds to be completely skinned, eviscerated, and cut in half, at which point it finally looks like the stereotyped image of beef— hanging in freezers with eerie stillness. foer at 229-33. 30  id. at 255. 31  id. at 255-56. 32  id. at 256. 33  karl marx, economic and philosophic manuscripts of 1844, at 32 (martin mulligran, trans., 1959) (1932), available at http://www. marxists.org/archive/marx/works/download/pdf/economic-philosophicmanuscripts-1844.pdf (stating that “an immediate consequence of the fact that man is estranged from the product of his labor, from his life activity from his species-being, is the estrangement of man from man”). http://www.marxists.org/archive/marx/works/download/pdf/economic-philosophic-manuscripts-1844.pdf http://www.marxists.org/archive/marx/works/download/pdf/economic-philosophic-manuscripts-1844.pdf http://www.marxists.org/archive/marx/works/download/pdf/economic-philosophic-manuscripts-1844.pdf 337 compassion and critique vol. 1:3 but the most notorious example of marx’s notion of fellow-beings alienation is what he named commodity fetishism: as consumers in a capitalist society, we lavish our creative and caring energies on things, ignoring the social relations that each object represents.34 advertising thrives on, and seeks to encourage, commodity fetishism. commodity fetishism, moreover, crosses paths with human nature alienation. possessing things is a substitute for caring for others as well as making things; possessing things becomes crucial to buttressing the self, and self-indulgence emerges as the flip side of the disciplinary urge to improve oneself. “it’s all about you,” a thousand commercials promise, and rather than needing to “work on yourself,” you can become your highest and best self through things money can buy. roberto unger carefully examines the affective experience of commodity fetishism with a discussion of luxury, which in his view has four facets.35 he begins, like marx, by observing that luxury involves the enjoyment of a good or service while ignoring the labor that brought it into being.36 luxury has nothing to do with either creativity or survival, and its pleasures do not require or encourage involvement with other people. at this level, it is utterly asocial, “the consumer’s orgasm.”37 but luxury for unger contains other levels as well. the pleasure of luxury is also in its signaling of social rank, and more specifically, the assertion of privilege.38 at this level, luxury is not asocial; it is, however, a sociability that consists precisely of excluding the others who cannot afford what you can.39 at a third level, luxury is actively antisocial: “[t]he passive pleasures of luxury offer an alternative to the joys of serious involvement . . . . they promise us a bright happiness without subjection to the risks and disappointments of the personal 34  id.; see also isaac balbus, commodity form and legal form: an essay on the “relative autonomy” of the law, 11 law & soc’y rev. 571, 574 (1977) (“products appear to take on a life of their own, dominating the very human subjects who in fact bring them into existence but who no longer ‘know’ this.”). 35  see roberto m. unger, passion: an essay on personality (1986). 36  marx asserts that a commodity is nothing more than “congealed labor.” see karl marx, capital: a critique of political economy 46 (fredrick engels ed., samuel moore & edward aveling trans., random house 1906) (1894) (“as values, all commodities are only definite masses of congealed labour time”). 37  unger, supra note 35, at 137. 38  id. 39  id. at 138. 2012 columbia journal of race and law 338 encounter.”40 luxury thus permits us to avoid possibly frightening encounters with less privileged others. fourth (and most ethereally), unger argues that luxury plunges us into the experience of “an utter and irredeemable solitude, apparent in an experience of self that cannot be translated into the categories of established social discourse.”41 here, unger argues, luxury is not only asocial, but like art and sex it fills us with sensations and impulses that can never be met fully or captured in social life, alerting us to the limitations of the social. as adam smith did, marx and the theorists of capitalism who have built on marx’s work recognize the world of “moral sentiments” that underpins the world of market relations.42 marx does so by making visible the social relations congealed in passionless words like “capital,” “labor,” and “commodity.” reading marx, we feel with the worker; reading unger, we feel with the buyer of commodities, and both analyses fill us with disquiet. marx’s purpose, however, is critical: he calls the workers of the world to unite. his task, therefore, is not only to stir pity for human workers and disapproval of humans as consumers, but also to view capitalism itself as an ideology-laden enterprise that will, and should, collapse. presented by its advocates as a good that benefits everyone through the workings of an invisible hand, in fact capitalism causes suffering for the many and privileges the few. thus, marx’s mission as an emotional entrepreneur is a double one: both to reveal the suffering caused by capitalism, and to inspire our outrage at the lies and contradictions that underpin the system. this combination of compassion and outrage is meant to produce in us the courage to transform our social relations, to join the revolution and make capitalism obsolete. iii. race, ideology, and emotion however strenuously its proponents may sometimes attempt to portray it as a force of nature, capitalism is clearly only one among many ways of organizing relations of production, consumption, distribution, and exchange among human beings. race and gender, however, appeal to ideas about biology and culture—supposedly universal and nonpolitical—to make inequality 40  id. 41  id. at 139. 42  adam smith, the theory of moral sentiments (2d. ed. 1761). 339 compassion and critique vol. 1:3 seem natural, normal, and necessary.43 ideological critiques of race and gender thus quickly become epistemological critiques: they persuade us to question what seem to be matters of simple common sense. as instances of emotional entrepreneurship, ideological critiques of the natural not only stir compassion for suffering and instill outrage over the denial of that suffering. they also reach deep into the emotions by disturbing our own conception of who we think we are, and where we think we belong. an ideological critique of race and gender may, indeed, subject marx’s own critique to critique. consider his assumptions about human nature. marx’s account of human nature alienation, as we have seen, proceeds from a particular conception of the human: for him, a central part of human “species-being” is the capacity to reshape the rest of nature. although embracing marx’s critique of the commodity, critical theorist bob torres argues that marx failed to recognize the ideology buried in this notion. when marx tells us that the capacity to reshape nature is uniquely human, he asks us to infer that it is unlimited by ethical or moral considerations (because we easily assume that something “natural” is therefore good). in torres’s view, marx’s notion of species-being ultimately implies— wrongly—that “our dominating nature is a positive force in the world, a taming of a wild and unruly natural sphere for the betterment of it and of humanity.”44 torres observes that the distinction between dominating man and passive nature is an invention of the european enlightenment, not a universal truth.45 for him, however, the 43  in nicolas de condorcet’s words, ideologies of race and gender “make nature herself an accomplice to the crime of political inequality.” stephen j. gould, the mismeasure of man: the definitive refutation to the argument of the bell curve 53 (rev. ed. 1996) (quoting nicolas de condorcet). for example, frank valdes conducts an ideological critique of “euro-american heteropatriarchy” in law, finding that legal rules reflect a series of false ideas—that there are only two genders, determined by biological sex; that passivity defines femininity and activity defines masculinity; that the “opposite” sexes inevitably attract one another; and so on. see generally francisco valdes, queers, sissies, dykes, and tomboys: deconstructing the conflation of “sex,” “gender” and “sexual orientation” in euroamerican law and society, 83 calif. l. rev. 1 (1995). 44  bob torres, making a killing: the political economy of animal rights 78 (2007) (drawing on the work of murray bookchin). 45  id. for discussions of the gendered opposition between active man and passive nature that emerged in the european enlightenment, see generally carolyn merchant, reinventing eden: the fate of nature in western culture (2003); donna haraway, simians, 2012 columbia journal of race and law 340 problem with marx’s concept of species-being goes even deeper than its culture-bound quality. the idea of species-being is ideological. it presents itself as a universal truth, but in fact “the human” is a political concept that has produced, and continues to produce, systematic violence and suffering. maneesha deckha notes that the major narratives of moral order produced by european philosophy are all organized around the idea of humanity.46 to be human is to be included in “society”; it potentially conveys “the right to have rights,” including the right to be protected from violence, and the privilege to demand a caring response to one’s suffering. as a corollary, violence against a being deemed nonhuman—an “animal,” say, or a human that has been “dehumanized”—is morally unproblematic, or even not recognizable as violence at all. as kelly oliver notes, drawing on giorgio agamben, “[w]ho is included in human society, and who is not is a consequence of the politics of ‘humanity,’ which creates the polis itself.”47 the definition of the human in this context is inherently political; it marks the border between legitimate and illegitimate violence, the world where everything is permitted and the world governed by rules, norms, and ethics. not surprisingly, the cultural work done to draw a protective boundary around the human is associated with political and economic projects of domination, both targeted at homo sapiens and other species. as deckha notes, for example, when juxtaposed against “the animal,” the figure of the human makes it possible to tolerate the industrial production of food, which as we have seen requires the systematic production of violence and suffering.48 to be an animal is not to have interests, or at least, not to have interests that really matter. juxtaposed against the “subhuman,” the figure of the human similarly gives license to practices and institutions that systematically bring suffering and death to human beings.49 cyborgs, and women: the reinvention of nature (1990). 46  maneesha deckha, the subhuman as a cultural agent of violence, 8 j. crit. animal stud. 28, 28 (2010). 47  id. at 33. 48  id. at 31. 49  deckha examines the productive role of the “subhuman” in three different contexts: the detention of muslims suspected of terrorism in military camps like guantanamo bay; contemporary slavery, or slavery-like practices of hyper-exploitation; and the laws of war. in each circumstance, once a person or group has been “dehumanized,” extreme violence against them is justified and their suffering is ignored, or even enjoyed, as in the case of informal 341 compassion and critique vol. 1:3 dehumanization produces a kind of pleasure that, like luxury, has both asocial and anti-social elements. the pleasure of degrading another who has been deemed “subhuman” is in part the pleasure of being accountable to no one. in its most intense form, torture, dehumanization produces a pleasure for the torturer in forcing the body and the will of another to attest to the torturer’s power, thereby producing a fantasy of power without limits. enacted within a cultural form, moreover, rituals of dehumanization combine these asocial and antisocial thrills—the pleasure of doing to people formerly unthinkable, unspeakable, impossible things—with the pleasure of social approbation. it is acceptable to do anything to a person who is less than a person. moreover, the animal and the subhuman are categories with a certain amount of overlap. violence and exploitation of humans is informed by violence and exploitation of animals, and sometimes the reverse (as when, for example, animal experimentation substitutes for experimentation on humans). at the symbolic level, people are regularly dehumanized by being “treated like animals,” or compared verbally to animals.50 to be a subhuman is to be an animal in human form. the category of “the subhuman” and its overlap with “the animal,” in fact, carries a special kind of emotional valence born from a specific history. the story of racial difference—told to legitimize slavery, colonization, and mass killing of humans by people who believed in liberty and equality—took power from the twin assertions that groups of humans differ from one another as species of animals do and that higher forms of life were meant to dominate the lower.51 this logic produced a close connection between the inferior races and the animals. africans and persons of african descent, for example, were, and are imagined to be, more closely related to apes and monkeys than to europeans.52 yet despite the just-so story of species difference and repeated attempts to stabilize the story with scientific proof, the torture at guantanamo bay. id. 50  for a sustained analysis of the overlaps among images of sexual violence against women, violence against animals, and images of dismemberment of nature and the body in western culture, see generally carol adams, the sexual politics of meat: a feminist vegetarian critical theory (1990). 51  see marjorie spiegel, the dreaded comparison: human and animal slavery 20 (1996). 52  see angela p. harris, should people of color support animal rights?, 5 j. animal l. 15, 22 (2009) [hereinafter harris, animal rights]. 2012 columbia journal of race and law 342 color line is much more difficult to maintain than the line between human and animal.53 the more precarious the distinction, however, the more insistent and shrill becomes its assertion. social theorists use the concept of abjection to describe how people come to reject as something that is intimately connected to the self, identifying it instead as other.54 strong emotions are necessary to accomplish this work: in the process of being defined as not-self, the abject becomes an uncanny thing, viewed with disgust, even horror; and the process of abjection is pervaded by anxiety. in the emotional economy of white supremacy, the figures of the savage and the black have been subjects of fantasies about the unclean, undisciplined, wild body; about sexuality and brutality without restraint; and both the seduction and the horror of “race-mixing.” these fantasies and emotional lures are, more or less transparently, what freudians would call “projections,” longings and fantasies that, unacceptable to the self, are attributed to the other.55 they are the product of abjection. the task of intervening in this web of belief, imagery, fantasy, and emotion is all the more complex because race is intertwined not only with our ideas about the human but with political economy and class. race emerged in part as an apology for the violent euro-american seizure of the means of agricultural mass production in the new world: indian land and african labor.56 as 53  for example, ariela gross examines trials that put individual racial identity into issue, showing just how difficult it has been to define “white” and “black” in the united states. ariela gross, what blood won’t tell: a history of race on trial in america (2008). 54  julia kristeva, powers of horror: an essay on abjection (1982). kristeva begins her examination of abjection with food loathing, waste, and cadavers—objects that demonstrate the thin border between life and death, being and non-being. id. at 2-3. subsequent theorists have used the notion of abjection to argue that becoming a “subject” requires abjection; that is, to say who i am requires me to say who i am not and thus create a ghostly other who could be but is not me. see, e.g., judith butler, bodies that matter, in feminist theory and the body: a reader 235, 237 (janet price & margrit shildrick eds., 1999). the philosopher martha nussbaum also explores the constitutive functions of disgust, suggesting that it plays a role in group subordination. martha c. nussbaum, hiding from humanity: disgust, shame, and the law 107 (2004). 55  nussbaum, for example, argues: “because disgust embodies a shrinking from contamination that is associated with the human desire to be nonanimal, it is frequently hooked up with various forms of shady social practice, in which the discomfort people feel over the fact of having an animal body is projected outwards onto vulnerable people and groups.” id. at 74. 56  i mean to incorporate within “race” the opposition between 343 compassion and critique vol. 1:3 with european colonialism around the globe, the strong justified their exploitation by asserting the inherent inferiority of the weak. the meaning of white supremacy, moreover, shifted as underlying political and economic conditions shifted. as barbara fields puts it, “there is, after all, a profound difference in social meaning between a planter who experiences black people as ungrateful, untrustworthy, and half-witted slaves and a planter who experiences black people as undisciplined, irregular, and refractory employees.”57 “white supremacy” meant different things, fields adds, to the planter, to a new england abolitionist, and to a hill-country white farmer.58 but the centrality of slavery to political economy and political theory in the early united states, and the agreement of nearly all observers that slavery was centrally a question of “race,” meant that race became an inescapable language for talking about labor, freedom, class, and work.59 indeed, fields says, race became a grammar of governance: “race became the ideological medium through which people posed and apprehended basic questions of power and dominance, sovereignty and citizenship, justice and right.”60 critical race theory was born from the attempt to treat both race and law as ideological. critical legal scholars describe one of the functions of law as “reification”—describing contingent and dynamic social relationships as fixed and stable, and thereby achieving fixedness and stability. property law, for example, redescribes complicated and changing relationships among people as a relation between an owner and a possession. in this way, property law creates things and people: it differentiates between subjects, who have rights, and objects, which do not. as cheryl harris has shown, the law of property is also a “savagery” and “civilization” that, as robert a. williams documents, has long been used to justify the subjugation of native peoples in the americas and elsewhere. see robert williams, the american indian in western legal thought: the discourses of conquest (1990). 57  barbara fields, ideology and race in american history, in region, race and reconstruction: essays in honor of c. vann woodward, 147, 154-55 (j. morgan kausser & james mcpherson eds., 1982). 58  id. at 156. 59  david roediger argues that the existence of slavery encouraged white wage-workers to define themselves against slaves: to define free labor as white and to demand the “wages of whiteness.” david roediger, the wages of whiteness: race and the making of the american working class 13 (1991). 60  barbara fields, supra note 57, at 162. 2012 columbia journal of race and law 344 place where race and capitalism visibly intertwine.61 property law is central to the operation of capitalism: it puts state power behind the capitalist’s control of land, labor, and technology. property law is also central to political governance. innovations in property law, for instance, set in motion the political economy of the early united states. several contemporary property casebooks begin with johnson v. mcintosh,62 the supreme court case that recognized in indian tribes only a right of “occupancy” in land, not full title.63 this decision has been rationalized on the grounds that, as joseph singer puts it, the tribes arguably did not “possess” the land because they did not enclose it, improve it [sic] occupy it, or otherwise treat it as something they owned and which therefore was reduced to private property. under this view, when the europeans came, the land was unpossessed; thus the europeans were the first possessors.64 the story of the indians as “wasting” the land and the europeans as making it “productive” has played a role in other decisions at the intersection of “indian law” and property law. examining a long line of supreme court decisions concerning indian tribes, singer concludes, rights in real property in the united states are based on a scheme of redistribution from those who were thought not to need the property or who were thought to be misusing it to those who were thought to need the property or who would use it for more socially valuable purposes. this redistribution was based on perceived racial hierarchies and transferred interests from the vulnerable to the powerful.65 a second innovation in property law that shaped the political economy of the united states in its early days is slavery, which legally rendered humans objects of property. slaves were not governed solely as things, of course; they could be prosecuted and 61  cheryl i. harris, whiteness as property, 106 harv. l. rev. 1707 (1992). 62  21 u.s. 543 (1823). 63  joseph william singer, starting property, 46 st. louis u. l.j. 565, 567 (2002). 64  id. at 567. 65  joseph william singer, property and sovereignty, 86 nw. u. l. rev. 1, 5 (1991). 345 compassion and critique vol. 1:3 punished for crimes. moreover, some states imposed duties on owners not to abuse their slaves, and some courts imposed a duty on those who hired slaves to compensate their owners if the slave were injured or killed.66 but these protections were not couched as individual rights belonging to the slave; they were reflections of the view that slaves, like children, were vulnerable, helpless, and incompetent, requiring the master’s protection and control.67 contemporary property law continues to serve an ideological function in drawing the line between persons and things. for example, animals are defined not as legal subjects but as objects that can be bought, sold, and transferred. their status as property makes the idea of “animal rights” odd, radical, and even incoherent to many. rather than advocating for animal rights, people who care for and about animals are encouraged to promote “animal welfare.”68 animal welfare law, like slave welfare law, is addressed to humans, prohibiting certain specific abuses and generally placing on humans the duty not to perpetrate gratuitous cruelty or neglect in the name of human decency and dignity. although animal welfare law modifies the absolute liberty granted by property rights to do whatever you like with what you own (and in this way points toward a non-thing-like status for animals), it accommodates rather than challenges the fundamental demarcation between human and nonhuman. thus, for example, if the suffering of animals promotes any legitimate human interest (such as the desire to test drugs or cosmetics, the pursuit of basic scientific or medical knowledge, or the industrial production of flesh for eating), that suffering will be protected and facilitated by animal welfare law. the human—not the animal or the subhuman—remains the measure of all things. yet another example of the ideological function of property law is visible in the navajo nation v. united states forest service decision of the united states court of appeals for the ninth circuit.69 in that case, the court, sitting en banc, held that spraying 1.5 million gallons of treated sewage effluent on humphrey’s peak, in the san francisco peaks of northern arizona—a sacred mountain for several indigenous nations—in order to make artificial snow for a 66  see william w. fisher, ideology and imagery in the law of slavery, in slavery & law 43, 44-45 (paul finkelman ed., 1997) (arguing that a fundamental tension in slavery law was the tension between the treatment of slaves as objects and as persons). 67  id. at 57. 68  see generally gary l. francione, animal rights and animal welfare, 48 rutgers l. rev. 397 (1996). 69  535 f.3d 1058 (9th cir. 2008). 2012 columbia journal of race and law 346 ski resort did not violate the first amendment rights of navajo, hopi, and other tribes to practice their religion freely. according to the majority, the religious freedom restoration act (rfra) protects religious exercise from government action that either “coerce[s an individual] to act contrary to their religious beliefs under threat of sanctions, or condition[s] a governmental benefit upon conduct that would violate [an individual’s] religious beliefs.”70 the court found that using treated sewage effluent on humphrey’s peak did not coerce the tribes to do anything contrary to their beliefs, and there was thus no rfra violation; the sole harm was to the indians’ “subjective spiritual experience.”71 the majority opinion can be criticized on a number of grounds.72 but one of its powerful emotional effects has to do with its implicit reliance on property law. for the hopi, the peaks are the primary home of powerful spiritual beings called katsinam.73 for 70  id. at 1067. 71  id. at 1063. 72  for instance, judge william fletcher, dissenting, asserted that “subjective spiritual experience” is at the heart of religious experience. moreover, he suggested that the majority had failed to take that religious experience seriously. judge fletcher noted dryly, “i do not think that the majority would accept that the burden on a christian’s exercise of religion would be insubstantial if the government permitted only treated sewage effluent for use as baptismal water, based on an argument that no physical harm would result and any adverse effect would merely be on the christian’s ‘subjective spiritual experience.’ ” id. at 1097 (fletcher, j., dissenting). scholars have argued that the jurisprudence of the free exercise clause privileges religious behavior that looks like christian behavior—religious ritual that is theistic, takes place in the built environment, involves an elaborate belief system, and sharply distinguishes belief from practice. spiritual practices that fail to meet these standards are frequently not recognized as “religious” or as worthy of protection at all. to this extent, free exercise doctrine retains the print of colonialism and the old distinction between savage and christian that helped constitute “the human” centuries ago. 73  according to the dissent, “hundreds of specific katsinam personify the spirits of plants, animals, people, tribes, and forces of nature . . . . appearing in the form of clouds, the katsinam are responsible for bringing rain to the hopi villages from the peaks. the katsinam must be treated with respect, lest they refuse to bring the rains from the peaks to nourish the corn crop. in preparation for the katsinam’s arrival, prayer sticks and feathers are delivered to every member of the village, which they then deposit in traditional locations, praying for the spiritual purity necessary to receive the katsinam. the katsinam will not arrive until the peoples’ hearts are in the right place, a state they attempt to reach through prayers directed at the spirits on the peaks.” id. at 1099. 347 compassion and critique vol. 1:3 the navajo, humphrey’s peak is “like family.”74 for the hualapai and the havasupai, “the whole mountain is regarded as a single, living entity.”75 judge fletcher summarized some of the testimony in the case: foster, nez, and navajo practitioner steven begay testified that because they believe the mountain is an indivisible living entity, the entire mountain would be contaminated even if the millions of gallons of treated sewage effluent are put onto only one area of the peaks . . . . [t]he contamination represents the poisoning of a living being. in foster’s words, “[i]f someone were to get a prick or whatever from a contaminated needle, it doesn’t matter what the percentage is, your whole body would then become contaminated. and that’s what would happen to the mountain.” in nez’s words, “all of it is holy. it is like a body. it is like our body. every part of it is holy and sacred.” in begay’s words, “all things that occur on the mountain are a part of the mountain, and so they will have connection to it. we don’t separate the mountain.”76 from the perspective of the navajo and the hopi, the lines drawn by western law to distinguish subjects from objects make the suffering of the mountain invisible. property law also renders unintelligible the relationship between the nations and the mountain. caring about and for an object, something over which one has absolute power, is different from caring about and for an entity with whom one is in relationship. this is not to say that formal equality rights create actual equality: horrific violence may occur between equal citizens. nor is it to say that formal inequality precludes mutually respectful relationships of interdependence; pet owners 74  as judge fletcher describes the relationship, “[t]he navajo greet the peaks daily with prayer songs, of which there are more than one hundred relating to the four mountains sacred to the navajo. witnesses described the peaks as ‘our leader’ and ‘very much an integral part of our life, our daily lives’ . . . . the navajo believe their role on earth is to take care of the land. they refer to themselves as nochoka dine, which one witness translated as ‘people of the earth’ or ‘people put on the surface of the earth to take care of the lands.’ they believe that the creator put them between four sacred mountains of which the westernmost is the peaks, or do’ok’oos-liid (‘shining on top,’ referring to its snow), and that the creator instructed them never to leave this homeland. although the whole reservation is sacred to the navajo, the mountains are the most sacred part.” id. at 1100. 75  id. at 1103. 76  id. at 1104. 2012 columbia journal of race and law 348 and parents know that to be false. but legal ontology does make a difference. at a material level, the decision in navajo nation elevates the economic interests of ski resort owners over persons who love and care for humphrey’s peak as family. at a symbolic level, it not only trivializes indigenous practices and beliefs, but also erases a series of complex relationships by making them unintelligible. how do critical theorists intervene in these complicated and many-layered conversations about property, animality, humanity, and race? the intellectual aspect of the critical theory project is to argue that these terms are all ideological: they present a particular distribution of power as natural, normal, and necessary. the emotional aspect of the critical theory project is multi-layered. getting people to “feel right” first means getting them to empathize with animals, torture victims, slaves, or hopi and navajo, as the case may be. even this first task may be more difficult than it initially looks. as peter singer has observed, for example, scientists often have made the claim that some or all animals do not feel pain the way “we” do.77 if animals do not suffer, there is no basis on which we should feel compassion for them.78 however, even caring by itself is not enough. one may wish individual animals well and still feel no need to stop eating them. a similar problem confronted abolitionists: it is perfectly possible to abhor cruelty to slaves and yet accept slavery as a system. against this conclusion, critical theory asks its reader to follow a path of “naming, blaming, and claiming” similar to the path traveled by people who bring anti-discrimination lawsuits.79 the recognition that others suffer is not enough; the suffering must be registered as unjust and amenable to change. critical theorists thus must evoke outrage against the ideology itself and the desire to dismantle it. contemporary critical race theorists face yet another problem of emotion management. on the one hand, in order to promote empathy for the subordinated, telling stories about how it feels to be the target of racism is a useful and appropriate tool.80 on 77  see peter singer, animal liberation 1 (3d ed. 2002). 78  in the antebellum period, it was similarly said that people of african descent were impervious to pain. see mark m. smith, getting in touch with slavery and freedom, 95 j. am. hist. 381, 385-86 (2008). 79  see william l.f. felstiner et al., the emergence and transformation of disputes: naming, blaming, claiming, 15 law & soc’y rev. 631 (1980-81). 80  see richard delgado, storytelling for oppositionists and others: a plea for narrative, 87 mich. l. rev 2411, 2413 (1989) (“stories, parables, chronicles, and narratives are powerful means for destroying mindset—the bundle of 349 compassion and critique vol. 1:3 the other hand, such “victim stories” can easily become pure “sorrow songs,” enjoyed primarily for their aesthetic value or as occasions for sentimentality.81 the story of humphrey’s peak, for instance, might be enjoyed as a glimpse of quaint and exotic native customs. victim stories can also promote the assumption that people of color are the experts on race whereas white people know nothing about it, thus exploring subordination at the expense of ignoring privilege. at worst, victim stories reinforce a politics in which groups bid for political recognition by showing how downtrodden they are. such a politics of victimization promotes destructive inter-group competition, perversely awards groups for their dysfunctions, and subtly shifts the aim of anti-subordination work from the reconstruction of social relations to symbolic “recognition” by, and sympathy from, the majority.82 this dilemma can only be avoided by refusing the lure of “reform” and seeking “revolution.”83 third, critical race theorists must walk a fine line between promoting a hermeneutics of skepticism under which racism is inevitable and everywhere, and insisting that racism can be eliminated—that “the arc of history is long, but it bends toward justice.”84 accepting the latter notion implies accepting a kind of racial idealism, a sunny view that our country is—or at least can presuppositions, received wisdoms, and shared understandings against a background of which legal and political discourse takes place.”). 81  i have described sentimentality elsewhere as a self-regarding emotion in which one feels proud of one’s sensitivity. see harris, animal rights, supra note 52. 82  for an especially thoughtful version of this criticism, see, e.g., wendy brown, states of injury: power and freedom in late modernity (2002). mary louise fellows and sherene razack make the related argument that relationships among white women and women of color are frequently marked by a “race to innocence” in which emphasizing one’s political victimization establishes one’s claim to authority and dignity. mary louise fellows & sherene razack, the race to innocence, 1 j. gender race & just. 335 (1998); see also trina grillo & stephanie m. wildman, obscuring the importance of race: the implication of making comparisons between racism and sexism (or other isms), in privilege revealed: how invisible preference undermines america 85 (stephanie m. wildman ed., 1996). 83  see crenshaw, supra note 10. 84  this quotation is customarily attributed to martin luther king. see, e.g., martin luther king, jr., a testament of hope: the essential writings of martin luther king, jr. 141, 207, 230, 277, 438 (james washington ed., 1986). dr. king, in turn, drew the phrase from a remark made by the abolitionist theodore parker. see theodore parker & frances power cobb, the collected works of theodore parker: sermons, prayers, vol. ii 48 (frances power cobb ed., 1867) (referring to the arc of the “moral universe”). 2012 columbia journal of race and law 350 be—on an upward trajectory from racism to the end of racism.85 not all theorists have been willing to accept this view; the critical race theorist derrick bell, for example, has argued that racism is “permanent.”86 this position, however, has confounded and dismayed some of his readers, who feel bell has consigned antiracists to despair and paralysis.87 bell’s insistence that spiritual redemption requires that we fight even if we must lose has been of no comfort to these readers.88 i have argued elsewhere that critical race theory should attempt to live within, rather than dissolve, this tension between optimism and pessimism.89 the goal is what rebecca solnit calls “hope in the dark”: gambling on “the possibility that an open heart and uncertainty are better than gloom and safety.”90 this path, however, is a tricky one to negotiate. iv. conclusion in this essay, i have suggested that ideology critique has an emotional dimension, in part because ideology itself is a strategy of emotion management. maintaining hierarchical relations requires that we manage our emotions in certain ways, that we not care. ideological critique seeks to spark caring and to build from it compassion, outrage, and the courage to make change. critical theory, including critical legal theory, can be intimidating to the reader. it lends itself to long and ponderous philosophical disquisitions, latinate constructions, and complicated terminology full of specialized meanings. it is important to 85  for an examination of politically conservative and politically liberal variations on this narrative of uplift, see generally ariela gross, when is the time of slavery?, 96 calif. l. rev. 283 (2008). 86  derrick a. bell, faces at the bottom of the well: the permanence of racism (1993). 87  see, e.g., leroy d. clark, a critique of professor derrick a. bell’s thesis of the permanence of racism and his strategy of confrontation, 73 denv. u. l. rev. 23, 24 (1995) (describing bell as propagating a “damaging and dampening message”); john a. powell, racial realism or racial despair?, 24 conn. l. rev. 533, 550 (1992) (arguing that bell is “unsuccessful in avoiding despair”). 88  for a defense of bell’s position drawing on the work of reinhold niebuhr, see george h. taylor, racism as “the nation’s crucial sin”: theology and derrick bell, 9 mich. j. race & l. 269 (2004). 89  see angela p. harris, foreword: the jurisprudence of reconstruction, 82 calif. l. rev. 741, 744 (1994) (arguing that “sophistication” and “disenchantment” are the possible fruits of living within this tension). 90  rebecca solnit, hope in the dark: untold histories, wild possibilities 4 (2005). 351 compassion and critique vol. 1:3 recognize that intertwined with its intellectual rigor is a commitment to caring. just as we find suffering beneath the smooth surface of ideology, beneath the sometimes offputting texts of ideological critique there is stowe’s injunction to “feel right.” we must not miss, or lose, or dismiss as trivial, the impulse to care. caring happens no matter what; in kathleen stewart’s words, it is an ordinary affect, an everyday occurrence in individual lives that occasionally leaps like flame from being to being, reassembling and realigning.91 caring is occasionally a force for large-scale change; more often, it is a weapon of the weak, a small rebellion or an enlivening. caring makes things possible; it also makes them meaningful. perhaps most important from the standpoint of large and complex social projects, caring, when turned into compassion, has the potential to subvert the lines that ideologies of subordination draw between self and other. roberto unger sees caring as an opening to the other and, in that way, a transformation of the self, or a rearticulation of the self, anyway, as wider and more mysterious being than one thought.92 caring is conventionally understood as purely subjective, internal to an individual. but caring takes place in culture and in political economy, and the opening that unger extols can happen at collective as well as individual levels. ideological critique cannot mandate these quicksilver transfigurations, but it can encourage or retard them. in these moments of rearticulation, new identities may form, or transform, and new affects may be explicitly central to the change (as when “pride” became central to the public affect of homosexuality). as critical theorists, we might begin to acknowledge and trace the structures of feeling that channel our own work, from the hope that theorizing can, by revealing contingency, spark the desire to change the world, to the hermeneutics of despair that pervade most left-progressive readings 91  stewart, supra note 1. 92  unger writes, “you lose the world that you hoped vainly to control, the world in which you would be invulnerable to hurt, misfortune, and loss of identity, and you regain it as the world the mind and the will can grasp because they have stopped trying to hold it still or to hold it away. the world you can make a home in is a world that you no longer hope to control from the distance of immunity, and the character you can accept as your own is a character that you can at last see as but a partial, provisional, and pliable version of your own self. renunciation and loss, risk and endurance, renewal and reconciliation: these are the ancient incidents in the search to make yourself into a person during the course of a life.” unger, supra note 35, at 11. 2012 columbia journal of race and law 352 of texts. the goal is not to control or direct fugitive currents of affect, but to watch where they go, and watch out. hardaway final approval 2013 columbia journal of race and law 49 race and income disparity: an ideology-neutral approach to reconciling capitalism and economic justice robert hardaway* income and wealth disparities along racial lines in the united states constitute a continuing threat to the political and democratic stability upon which the economy and government of the united states fundamentally depends. the quest for solutions to these economic disparities has thus far been frustrated by ideological battles between political groups and coalitions. in particular, ideological preconceptions have prevented these groups from listening to the ideas and proposals of opposing groups and working together to find real solutions to the problem of income disparities that actually work. instead, they have created policies which, while fitting within a preconceived ideological framework, may exacerbate the problems sought to be addressed, and in many cases cause both unintended and undesired consequences. the fault for society’s failure to adequately address income disparity along racial lines does not lie exclusively with any one political group or party. both liberals and conservatives have permitted ideology to cloud their search for meaningful solutions. if these solutions are to be found, conservatives must discard ideological preconceptions in such areas as abortion rights, family planning, and drug policy; liberals must likewise discard ideology in their approach to tax policy, immigration, housing, and education. both conservatives and liberals must discard ideological preconceptions and abandon politically seductive, but ultimately demagogic and self-defeating policies relating to international trade, and residential exclusionary policies, particularly in the areas of zoning. i. introduction……………………………………………………………. 50 ii. conservative ideology and policies…………………………. 52 a. family planning and abortion……………………………………….. 52 b. u.s. drug policy………………………………………………………. 55 iii. liberal ideologies and policies………………………………… 58 * professor of law, university of denver, sturm college of law. the author has borrowed liberally from the following six of his previously published books: robert m. hardaway, the great american housing bubble: the road to collapse (2011) [hereinafter housing bubble]; robert m. hardaway, crisis at the polls: an electoral reform handbook (2008); robert m. hardaway, no price too high: victimless crimes and the ninth amendment (2003) [hereinafter no price too high]; robert m. hardaway, america goes to school: law, reform, and crisis in public education (1995) [hereinafter america goes to school]; robert m. hardaway, population, law and the environment (1994) [hereinafter population, law and the environment]; robert m. hardaway, the electoral college and the constitution: the case for preserving federalism (1994); and the law review article, robert m. hardaway, e-discovery’s threat to civil litigation: 50 race and income disparity vol. 3:1 a. housing policy………………………………………………………… 58 b. immigration……………………………………………………………. 61 c. tax policy……………………………………………………………… 63 d. educational policy and busing……………………………………….. 65 iv. mixed conservative and liberal policies………………...... 68 a. local residential and exclusionary policies………………………… 68 b. trade policy……………………………………………………………. 70 v. conclusion………………………………………………………………... 71 i. introduction according to the u.s. census bureau, there are vast disparities in income between racial groups.1 in 2009 constant dollars, the median annual income of asian and pacific households is $65,469, $51,861 for whites, $38,093 for hispanics, and just $32,684 for blacks.2 these disparities in income have in turn generated distortions in the percentages of total federal income taxes paid by different racial groups, which in turn serves to lower the percentage of americans with an economic stake in the body politic.3 when measured along racial lines, such income disparities have inspired a plethora of books, articles, and manifestos,4 the titles of which suggest the ideological undertones to be found within them: 1 u.s. census bureau, money income of families—number and distribution by race and hispanic origin: 2009, http://www.census.gov/compendia/statab/cats/income_expenditures_poverty_wealth.html (last visited feb. 12, 2012); u.s. census bureau, money income of families—percent distribution by income level in constant (2009) dollars: 1908 to 2009, http://www.census.gov/compendia/statab/cats/income_expenditures_poverty_wealth.html (last visited feb. 12, 2012). 2 u.s. census bureau, money income of households—percent distribution by income level, race, and hispanic origin, in constant (2009) dollars: 1990 to 2009), http://www.census.gov/compendia/statab/cats/income_expenditures_ poverty_wealth.html (last visited february 12, 2012).. 3 for example, in 2007 the top one percent of income earners in the u.s. paid forty percent of all federal income taxes collected in the u.s. catherine rampell, top 1% paid more in federal income taxes than bottom 95% in ’07, n.y. times (jan. 30, 2009, 7:39 pm), http://economix.blogs.nytimes.com/2009/07/30/top-1-paid-more-in-federalincome-taxes-than-bottom-95-in-07/#. in 2009, the top ten percent of income earners paid seventy percent of all income taxes, and the top fifty percent of income earners paid over ninety percent. david s. logan, fiscal facts: summary of the latest federal individual income tax data, the tax found (oct. 24, 2011), available at http://www.taxfoundation.org/news/show/250.html#table1. forty-seven percent of americans paid no federal income tax at all, and many of those actually received income from the government in the form of so-called “reverse” income taxes. jared spurbeck, by the numbers: what the 47 percent who pay no income taxes look like, yahoo! news (oct. 12, 2011), http://news.yahoo.com/numbers-47-percent-pay-no-income-tax-look-170500327.html. it should be noted, however, that while forty-seven percent of americans pay no federal income tax, most of those earners who are not in the underground economy do make contributions (often under the misnomer of “payroll taxes”) to their individual retirement accounts administered by social security, and also pay regressive sales taxes to support local government. 4 beverly moran & stephanie m. wildman, race and wealth disparity: the role of law and the legal system, 34 fordham urb. l.j. 1219, 1224 (2007) (“[b]y restricting benefits to whites either explicitly—as in the federal home mortgage arena—or implicitly—as in social security—these government programs helped ensure that government benefits would enforce an income and wealth gap between white americans and their non-white counterparts.”); emma 2013 columbia journal of race and law 51 economic apartheid in america,5 destiny revolutionized: economic enslavement of african-americans,6 black wealth, white wealth.7 this article seeks to look beyond the traditional and ideological explanations for income disparities and screens them for arguments and assertions that may reflect the pursuit of a political agenda rather than the pursuit of a rational solution to an undeniable social problem.8 since income disparities by race create the potential for social conflict, diminishment of economic opportunity, and threats to political and democratic stability,9 it is all the more critical that the political ideologies that contribute to such disparities be rationally explained and examined, and that ideology-neutral solutions be proposed to those who make policy in a democratic society.10 blind adherence to ideological preconceptions on the part of representatives of both the right and the left have effectively blocked or neutralized the good faith efforts of each other. consequently, little has been done in addressing the deep social and economic problems that flow from racial disparities in income in the united states. coleman jordan & angela p. harris, when markets fail: race & economics (2006); tukufu zuberi, the dynamic racial composition of the united states, in race, poverty, and domestic policy 157, 158 (c. michael henry ed., 2004) (summarizing that the failure to assimilate is one of the purported causes of racial inequality); dalton conley, being black, living in the red: race, wealth, and social policy in america 151–52 (1999); michael reich, racial inequality, in radical political economy: explorations in alternative economic analysis 197, 197 (victor d. lippit ed., 1996); samuel l. myers, jr. & william j. sabol, unemployment and racial differences in imprisonment, in the economics of race and crime 189, 207 (margaret c. simms & samuel l. myers eds., 1988). 5 chuck collins, economic apartheid in america: a primer on economic inequality & insecurity (2000). 6 joseph r. gibson, destiny revolutionized: the economic enslavement of african-americans (2d ed. 2000) (“the vast majority of black people in the world are slaves to the white power establishment without ever truly realizing it. just because you can't see any chains doesn't mean they're not there. camouflaged in petty paychecks, political promises, and diplomas certifying our mis-education, our neo-enslavement encompasses the aspirations of true freedom in a blanket of ignorance, complacency, and despair, while suffocating the initiating breath of black revolution before it is ever conceived.”). 7 oliver l. melvin & thomas m. shapiro, black wealth, white wealth: a new perspective on racial inequality (10th ed. 2006). 8 paul krugman, how fares the dream?, n.y. times, jan. 16, 2012, available at http://www.nytimes.com/2012/ 01/16/opinion/krugman-how-fares-the-dream.html; desmond s. king & rogers s. smith, on race the silence is bipartisan, n.y. times, sept. 2, 2011, available at http://www.nytimes.com/2011/09/03/opinion/on-race-the-silence-isbipartisan.html (“the economic crisis in the united states is also a racial crisis. white americans are hurting, but nonwhite americans are hurting even more.”); george wilson, racialized life-chance opportunities across the class structure: the case of african americans, 609 annals am. acad. pol. & soc. sci. 215, 228–29 (2007); george wilson, race, ethnicity, and inequality in the u.s. labor market: critical issues in the new millennium (2007); katherine newman, no shame in my game 43 (1999) (arguing that racial wealth disparity is not just the result of an “educational disadvantage concentrated among minorities: african-americans in the labor force are more likely to be poor than their white counterparts at all levels of the educational continuum.”). 9 elijah anderson, violence and the inner-city street code, in race, poverty, and domestic policy 670, 670 (c. michael henry ed., 2004) (“the inclination to violence springs from the circumstances of life among the ghetto poor— the lack of jobs that pay a living wage, the stigma of race, the fallout from rampant drug use and drug trafficking, and the resulting alienation and lack of hope for the future.”). 10 thomas sowell, race and economics 165 (1975) (“if a group is paid less, or employed or promoted less often, because it is disliked by employers, co-workers, or customers, then it may continue to suffer low wages and higher unemployment rates even if its current capabilities are equal to those of others.”); thomas sowell, the thomas sowell reader 17 (2011) (“[w]hile today’s underclass is not only denied those tools, but receives excuses for remaining in poverty—and ideologies blaming their plight on others, whom they are encouraged to envy and resent. the net result is an underclass generation that has trouble spelling simple words or doing elementary arithmetic, and which has no intention of developing skills.”). 52 race and income disparity vol. 3:1 part ii will survey how conservative ideology and government policies promulgated thereunder have served to exacerbate racial disparities in income. it will discuss counter-productive conservative policies related to population, family planning, abortion, and drug policy. part iii will in turn discuss how liberal ideology has also led to policies that exacerbate income inequality between races, and includes subsections on housing policy, immigration, labor policy, tax policy, and educational policy. part iv will survey policies contributing to racial income disparities that have been fostered by, at different times and in different contexts, both conservative and liberal policymakers. it includes an analysis of local residential exclusionary policies and trade policy. finally, part v concludes that true progress toward addressing the social and economic consequences of income disparities can only be made through a non-ideological approach in which both conservatives and liberals set aside ideological preconceptions and political agendas, give adequate consideration to the values and arguments of the other, and work together to alleviate the problems of racial disparities in income that both sides agree are a blot on the american dream. in looking for both explanations and answers, it will be noted throughout this article that the greatest obstacles to rational discourse have come in the form of ideologically inspired litmus tests to which policymakers and politicians so often feel obliged to adhere. such adherence has led policymakers to adopt self-defeating policies which serve to exacerbate rather than alleviate the problems of racial disparities in income. ii. conservative ideology and policies although political lines between liberals and conservatives are often blurred, the prevailing conservative agenda includes opposition to a woman’s right to abortions,11 opposition to the widespread dissemination of contraceptives (particularly dissemination at government expense),12 opposition to drug legalization, and opposition to taxes on products harmful to health such as tobacco and liquor.13 a. family planning and abortion a conservative agenda of denying the poor access to contraceptives and family planning has led to poor families having more children than they can adequately educate and care for.14 this in turn initiates a cycle of dependency on government, which leads inexorably to income disparities. 11 republican national convention, republican platform 2012, we believe in america (2012), available at http://www.gop.com/wp-content/uploads/2012/08/2012gopplatform.pdf. 12 robert pear, as ryan looks to focus on economy, spotlight shines on his other views, n.y. times, aug. 13, 2012, http://www.nytimes.com/2012/08/13/us/politics/paul-ryans-views-on-abortion-guns-and-same-sex-marriage-cometo-forefront.html. 13 paul ryan on medical marijuana legalization: ‘let the states decide’, huffington post (sept. 8, 2012), http://www.huffingtonpost.com/2012/09/07/paul-ryan-marijuana-legalization_n_1866180.html; the tobacco tax, wash. post, oct. 17, 2007, http://www.washingtonpost.com/wpdyn/content/article/2007/10/16/ar2007101601817.html; dennis cauchon, tax hike cuts tobacco consumption, usa today (sept. 13, 2012), http://usatoday30.usatoday.com/news/nation/story/2012-09-10/cigarette-taxsmoking/57737774/1. 14 louise radnofsky, texas medicaid funds cut over planned parenthood, wall st. j., mar. 16, 2012, at a7; arizona wades into contraception controversy, cnn politics (mar. 15, 2012), http://articles.cnn.com/2012-0315/politics/politics_arizona-contraception-controversy_1_religious-beliefs-employers-healthinsurance?_s=pm:politics [hereinafter arizona wades into contraception controversy]; eric mayes, planned parenthood faces cuts, phila. trib., feb. 22, 2011, at 1a. “nearly 15 million children in the united states—21% of all children—live in families with incomes below the federal poverty level—$22,350 a year for a family of four. research shows that, on 2013 columbia journal of race and law 53 the evangelical wing of the right is ideologically opposed to government assistance to the poor in the form of providing contraceptives, family planning, and abortion services. even assuming both of the right’s ideological premises that a fetus is a human being and that it is immoral for a woman to have an abortion, adherents of this ideology rarely examine whether denial to the poor of access to family planning, and the criminalization of abortion, actually achieve the goal of “preserving life.” nor do they acknowledge the demonstrated consequences of such criminalization.15 a comparison of countries with the strictest enforcement of anti-abortion laws with countries where abortion is available on demand reveals the very limited effect that abortion laws have on the actual number of abortions. for example, romania under the ceausescu regime in the 1980s had the most draconian anti-abortion laws in modern times, and like nazi germany, imposed the death penalty for abortion. women in romania under the age of forty-five were routinely rounded up by the secret “menstrual police” and herded into clinics to be examined for signs of pregnancy, and if revealed to be pregnant, were monitored by the police and hauled into police stations for interrogation.16 not surprisingly under such a regime, sixty percent of pregnancies resulted in illegal abortions and infant mortality skyrocketed to eighty-three out of 1,000 births (compared to ten out of 1,000 births in western countries where abortion was available on demand).17 systems like this, where abortion continues to be criminalized, demonstrate how some anti-abortion measures may be characterized as pro-death rather than pro-life. if the united states reverted to the abortion policies that pre-dated roe v. wade, as the blind adherents to conservative ideology might like, we may see a similar rise in risky abortions and infant mortality.18 in the netherlands, where abortion is available on demand, the abortion rate continues to be one of the lowest in the world: 8.6 per 1000 women.19 while these differences in abortion rates can be explained at least in part by the fact that contraceptives are legal and freely available in countries where abortion is legal, it is also true that countries which restrict abortion are also more likely to restrict contraception, which in turn triggers an increase in abortion. even in the united states, the use of contraceptives by married couples in many states was not legalized until 1965 in griswold v. connecticut,20 average, families need an income of about twice that level to cover basic expenses. using this standard, 44% of children live in low-income families.” child poverty, nat’l ctr. for children in poverty, http://www.nccp.org/topics/childpoverty.html (last visited nov. 3, 2012). 15 it was not until 1869 that pope gregory xiv declared that abortion of any fetus, regardless of quickening, was grounds for excommunication. see laurence h. tribe, abortion: the clash of absolutes 32 (1990). conveniently, this new religious dictate synced nicely with the campaign launched by doctors around this same time to criminalize all abortion as a means of defending their turf against midwives. james mohr, abortion in america 147– 70 (1979). prior to 1800, in accordance with established religious doctrine, abortion before quickening was legal in every state of the union. id. at 3. by the time the doctors’ campaign reached its zenith at the end of the nineteenth century, however, every state had adopted the pope’s (and the doctors’) revolutionary new dictate outlawing abortion even before quickening. see id. at 224–25. it was not until seventy years later in the 1970s when states such as hawaii and new york legalized abortion that ancient catholic doctrine and the common law was restored. however, it was not legalized on a national basis until roe v. wade in 1973. population, law, and the environment, supra note 1, at 117. 16 karen breslau, overplanned parenthood: ceausescu’s cruel law, newsweek, apr. 22, 1990, at 35. 17 id. 18 roe v. wade, 410 u.s. 113 (1973). 19 faq: abortion in the netherlands 2010, netherlands ministry of foreign affairs http://www.government.nl/ministries/bz (last visited dec. 2012). 20 griswold v. connecticut, 381 u.s. 479, 499 (1965). 54 race and income disparity vol. 3:1 and the use of contraception by unmarried couples was not legalized until 1972 in eisenstadt v. baird.21 only after these two cases set the stage were abortion rights upheld in roe v. wade.22 to date, the catholic church in the u.s. proclaims contraception by married couples to be a mortal sin on a par with the sin of abortion.23 this policy in turn has contributed to a population explosion, particularly in undeveloped countries, which had the unintended consequence of increasing poverty. from this we can see that the very history upon which an ideological principle is based often gets lost in the quest for being perceived as an adherent to an ideological principle.24 the religious25 and right-wing’s26 war against contraception has resulted in unwanted children being born, many of whom end up on welfare and thereby contribute to income disparities between the rich and poor.27 when the poor have large families, their resources are stretched so thinly among their children that they are unable to provide the same medical, educational, and cultural advantages as they could if they had fewer children. because a disproportionate number of minority children already come from poor families, this reinforces the cycle of poverty that serves to exacerbate the disparity in incomes across racial lines.28 unfortunately, however, government policies have long sought to deprive poor 21 eisenstadt v. baird, 405 u.s. 438, 454–55 (1972). 22 roe v. wade, supra note 18. 23 pope paul vi, humanae vitae: encyclical of pope paul vi on the regulation of birth 5–6 (1969), available at http://www.scborromeo.org/docs/humanae_vitae.pdf; janet e. smith, humanae vitae: a generation later, sacred heart major seminary, 8, http://www.archdioceseof detroit.org/aodonlinesqlimages/shms/faculty/smithjanet/publications/humanaevitae/09agenerationlater.pdf (last visited dec. 5, 2012) (“to engage in an act of contracepted sexual intercourse is to engage in an act that has the potential for creating new life and an act that has the potential for creating tremendous emotional bonds between male and female and simultaneously to undercut those potentials. sex is for babies and for bonding; if people are not ready for babies or bonding they ought not to be engaging in acts of sexual intercourse.”). 24 one wonders how many who adhere to an anti-abortion ideology today are even aware that as early as medieval times, the eminent catholic theologian st. thomas aquinas stated in politicorum that “seed and what is not seed is determined by sensation and movement.” saint thomas aquinas & raimondo m spiazzi, in octo libros politicorum aristotelis expositio 12 (1660); immigration reform, incentives suggested as remedies to worker shortage, 59 payroll guide newsl., mar. 3, 2000, available at 2000 wl 34005042. additionally, martin azplicueta, “the guide in moral questions of three popes, and the leading canonist of the 16th century” and a consultant to the sacred penientiary, the roman tribunal for deciding cases of conscience to confessors, stated in consila that “the rule of the penitentiary was to treat the fetus over forty days as ensouled. hence therapeutic abortion was accepted in the case of a fetus under this age.” hugo hurter, nomenclator literarius recentioris theologia catholica theologos exhibens qui inde a concilio tridentino floruerunt aetate, natione, disciplinis distinctos 344–47 (nabu press 2010). in other words, ancient catholic religious doctrine was within a whisker of mirroring precisely the rule of roe v. wade some six hundred years later. 25 pope paul vi, humanae vitae: encyclical of pope paul vi on the regulation of birth 5–6, http://www.scborromeo.org/docs/humanae_vitae.pdf (last visited feb. 16, 2012). 26 z. byron wolf, rick santorum declared contraception ‘harmful to women’ in 2006, abc news (feb. 15, 2012) http://abcnews.go.com/blogs/politics/2012/02/rick-santorum-declared-contraception-harmful-to-women-in-2006. 27 u.s. dep’t of health and human serv., trends in foster care and adoption – fy 20022011(2012), available at http://www.acf.hhs.gov/sites/default/files/cb/trends_fostercare_adoption.pdf (in 2011, over 400,000 american children were in foster care.). 28 trina shanks, et al., diverging pathways: how wealth shapes opportunity for children 2 (2011) available at http://www.insightcced.org/uploads/crwg/divergingpathways-insightcenter-finalembargoed.pdf (minorities under the age of five are three times more likely than corresponding white children to live in households with little income and no assets). 2013 columbia journal of race and law 55 families of access to family planning programs and contraception.29 yet again, these policies illustrate how ideology serves to exacerbate racial disparity in incomes. in early 2012, a coalition of conservative and religious groups lobbied to deny coverage for contraception.30 this effort was a culmination of a long history in the united states of criminalizing or discouraging family planning and contraception. as early as 1872, anthony comstock introduced a bill in congress defining contraception as “filthy or vile” and making it a crime to “sell, lend or give away any article whatever for the prevention of conception.”31 the tariff act of 1930 banned the import of a number of articles, placing the sale of contraceptive devices in the same category as treason and murder.32 it was not until 1965 that the supreme court finally struck down draconian state laws which made it a felony for any person, married or not, to use any kind of contraceptive device.33 nevertheless, states continued to find ways to discourage the use of contraceptives; in 1972, massachusetts passed a law making it a felony for anyone other than a doctor to dispense condoms, and even then, only to married couples.34 a lecturer at boston university who dispensed a contraceptive was convicted under this law, which carried a five-year prison term of hard labor in the penitentiary.35 while roe v. wade effectively reinstated the ancient catholic doctrine of quickening as the dividing line between legal and illegal abortion,36 states continue to push the envelope by passing laws that restrict or discourage abortion.37 the irony is that a significant percentage of abortions can be accounted for by the very laws and policies which make contraceptives and family planning services unavailable. b. u.s. drug policy 29 see, e.g., louise radnofsky, supra note 14; arizona wades into contraception controversy, supra note 14; mayes, supra note 14; kim bell, abortion dispute puts budget in jeopardy, st. louis post dispatch, may 10, 1997, at 12. 30 opposition strikes at ‘obamacare’ on birth control, cbs news (feb. 17, 2012, 6:45 pm), http://www.cbsnews.com/8301-505245_162-57380657/opposition-strikes-at-obamacare-on-birth-control/; jackie calmes, obama plans big effort to build support among women, n.y. times, mar. 11, 2012, http://www.nytimes.com/2012/03/11/us/politics/obama-campaign-plans-big-effort-to-courtwomen.html?_r=1&ref=abortion; ron paul statement on new obamacare/hhs regulation, ron paul 2012 presidential campaign committee, http://www.ronpaul.tv/ron-paul/ron-paul-statement-on-new-obamacarehhs-regulation.php (last visited dec. 4, 2012). 31 ch. 258 §2, 17 stat. 598 (1873) (codified as amended at 18 u.s.c. § 1461). comstock soon found sport in baiting doctors with forged letters from women claiming that their husbands were mentally ill and they were afraid their children would inherit the illness. thus, they needed advice on avoiding pregnancy. milton lader & lawrence meltzer, margaret sanger: pioneer of birth control 44 (1969). doctors were expected to respond by telling such patients to “sleep on the roof”—a phrase, which became the rallying cry of margaret sanger. margaret sanger, margaret sanger: an autobiography 89 (dover publications 1971) (1938). when the doctors took the bait and provided advice, comstock would have the doctor arrested and sentenced to seven years of hard labor. lader & meltzer, supra, at 44. 32 tariff act of 1930, tit. 3, ch. 497, § 305, 46 stat. 688 (1930) (codified at 19 u.s.c. § 1305 (2012)) (current version at 19 u.s.c. § 1305 (2012)). 33 griswold, 381 u.s. at 479. 34 mass. gen. laws ch. 272 § 21 (west 1972). 35 eisenstadt v. baird, 405 u.s. 438, 449 (1972). 36 roe, 410 u.s. at 161. see supra, notes 18 and 27 setting forth the ancient catholic doctrine of “quickening” as the basis for ensoulment. 37 women’s med. ctr. of nw. houston v. bell, 248 f.3d 411, 414 (5th cir. 2001); greenville women’s clinic v. bryant, 222 f.3d 157, 160 (4th cir. 2000); planned parenthood arizona, inc. v. am. ass’n of pro-life obstetricians & gynecologists, 257 p.3d 181, 186–87 (ariz. ct. app. 2011); planned parenthood of middle tenn. v. sundquist, 38 s.w.3d 1, 3–4 (tenn. 2000). 56 race and income disparity vol. 3:1 american drug policy is another primary cause of racial disparity in income in the u.s.38 drug offenders fill up almost half of america’s federal prison capacity, necessitating the early release of murderers, rapists, and child molesters.39 despite studies showing that people of all races use drugs at approximately the same rate,40 blacks nevertheless make up a disproportionate percentage of those incarcerated for drug offenses,41 with the result that in some communities as many as eighty percent of black male breadwinners are in prison, primarily for drug-related offenses.42 not surprisingly, the effects of such disproportionate incarceration rates of black breadwinners on income disparities are catastrophic.43 michelle alexander, in her controversial book the new jim crow: mass incarceration in the age of colorblindness, documents the disproportionate effect the war on drugs has on the black population.44 at least part of the causes of this disproportionate effect is that punishments for use of crack cocaine are more severe than punishments for use of cocaine favored by upper class whites. human rights watch has observed that: although crack was the least used of all illicit drugs in the u.s., and although more whites used illicit drugs than blacks . . . , the "war on drugs" has been targeted most notoriously at the possession and sale of crack cocaine by blacks. crack cocaine in black neighborhoods became a lightning rod for a complicated and deep-rooted set of racial, class, political, social, and moral dynamics. to the extent that the white majority in the u.s. identified both crime and drugs with the "dangerous classes"—i.e., poor urban blacks—it was easier to endorse, or at least acquiesce in, punitive penal policies that might have been rejected if members of their own families and communities were being sent to prison at comparable rates.45 whatever one might think of her assertion that the mass incarceration of blacks “is the new jim crow,”46 the data showing the high percentage of blacks in prison on drug offenses is well documented.47 every year, over 400,000 americans die from tobacco use,48 over 75,000 from alcohol abuse,49 and almost 16,000 die from abuse of illegal drugs.50 in terms of deaths per 100,000 users, “tobacco kills 38 michael tonry, racial politics, racial disparities, and the war on crime, 40 crime & delinq. 475, 475 (1994). 39 quick facts about the bureau of prisons, fed. bureau of prisons, http://www.bop.gov/news/quick.jsp (last visited mar. 23, 2012). 40 illicit drug use, by race/ethnicity, in metropolitan and non-metropolitan counties: 2004 & 2005, nat’l survey on drug use & health (june 21, 2007), http://oas.samhsa.gov/2k7/popdensity/popdensity.htm. 41 alfred blumstein, racial disproportionality of u.s. prison populations revisited, 64 u. colo. l. rev. 743, 751 (1993). 42 michelle alexander, the new jim crow: mass incarceration in the age of colorblindness 96 (2012) [hereinafter the new jim crow]. 43 criminal justice fact sheet, nat’l ass’n for the advancement of colored people (naacp), http://www.naacp.org/pages/criminal-justice-fact-sheet (last visited april 10, 2012). 44 “the single greatest force behind the growth of the u.s. prison system since the mid-1980s has been the national ‘war on drugs.’ spearheaded by major federal drug policy initiatives that significantly increased penalties for drug offenses and markedly increased federal funds for state anti-drug efforts, federal and state measures to combat drugs have concentrated on criminal law enforcement rather than prevention and treatment.” the impact of the war on drugs on us incarceration, human rights watch, http://www.hrw.org/reports/2000/usa/rcedrg00-03.htm (last visited dec. 5, 2012). 45 racially disproportionate drug arrests, human rights watch, http://www.hrw.org/reports/2000/usa/rcedrg00-05.htm#p323_67487 (last visited dec. 5, 2012). 46 the new jim crow, supra note 42, at 11. 47 id. at 97; blumstein, supra note 41, at 751; criminal justice fact sheet, supra note 43. 2013 columbia journal of race and law 57 650, alcohol 150, heroin 80, and cocaine 4.”51 no direct deaths from marijuana use have been documented.52 given the relatively small number of deaths resulting from illegal drug use compared to that of tobacco and alcohol, the government policy of legalizing the most deadly substances (tobacco and alcohol), while spending billions to criminalize the least deadly remains a great puzzle to the social scientist—especially when the consequences of such criminalization serves to corrupt government,53 siphon billions in drug profits to cartels and crime lords,54 and create an army of addicts.55 a cato institute study has revealed that a mere “243 addicts committed more than 437,738 crimes and that 26 addicts (denied their drugs by prohibitionists) commit 22 major crimes per day.”56 regardless of whether the war on drugs is an effort deliberately directed at incarcerating and disenfranchising black americans and undermining the economic base of an entire racial group, the evidence is overwhelming that it has had that effect.57 while it may charitably be claimed that the war on drugs reflects only a pathological failure of policy makers to learn the lessons of prohibition, and thus reflects no discriminatory intent, the disastrous consequences of the war on drugs are nevertheless welldocumented. prohibition, like the war on drugs demonstrates how blind adherence to ideology can lead to perverse policies that exacerbate rather than alleviate social ills. in the case of prohibition, the idea championed by social conservatives was that criminalizing the use of alcohol would lead to a reduction in the social ills caused by excessive use of alcohol.58 yet despite overwhelming evidence that the 48 tobacco use: targeting the nation’s leading killer at a glance 2011, ctr. for disease control and prevention (feb. 22, 2011), http://www.cdc.gov/chronicdisease/resources/publications/aag/osh.htm (“each year, an estimated 443,000 people die prematurely from smoking or exposure to secondhand smoke, and another 8.6 million live with a serious illness caused by smoking.”); smoking-attributable mortality, years of potential life lost, and productivity losses—united states 2000-2004, cent. d.c. (nov. 14, 2008), http://www.cdc.gov/mmwr/preview/mmwrhtml/ mm5745a3.htm. 49 alcohol-attributable deaths and years of potential life lost—united states, 2001, ctr. for disease control (sept. 24, 2004), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5337a2.htm. 50 office of national drug control policy, national drug control strategy: 2000 annual report 29 (2000), available at http://www.erowid.org/psychoactives/prohibition/ondcp/ondcp_2000_ndcs.pdf; hardaway, no price too high, supra note 1, at 1. 51 id. (quoting doug bandow, war on drugs or war on america, 3 stan. l. & pol’y. rev. 242, 245 (1991)) 52 drug fact sheet: marijuana, u.s. drug enforcement admin., http://www.justice.gov/dea/druginfo/drug_data_sheets/marijuana.pdf (last visited dec. 1, 2012). 53 id. 54 ginger thompson, u.s. drug agents launder profits of mexican cartels, n.y. times, dec. 3, 2011, at a1, available at http://www.nytimes.com (estimating 18–39 billion dollars a year in drug money crosses from the u.s. to mexico). 55 drugs and crime facts, bureau of justice statistics, http://bjs.ojp.usdoj.gov/content/dcf/duc.cfm (10.6% of federal and 30.3% of state inmates committed property offenses to obtain money for drugs.) (last visited jan. 17, 2013). 56 hardaway, supra note 1, at 2 (citing james ostrowski, thinking about drug legalization, cato institute policy analysis, no. 121, may 1989, at 25). 57 see generally the new jim crow, supra note 42. howard n. snyder, us dep’t of justice, arrest in the united states, 1980-2009 13 (2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/aus8009.pdf. (“during the 30-year period from 1980 to 2009, the white arrest rate of drug possession or use doubled and the black arrest rate tripled. the black arrest rate ended the period at 3 times the white arrest rate. overall, the racial disparity in arrests for drug sale or manufacture was greater than for drug possession or use.”). 58 hardaway, no price too high, supra note 1, at 50. 58 race and income disparity vol. 3:1 ideological preconceptions did not conform to reality, the “war on alcohol” was imposed for fourteen long years.59 the suffering caused during those years was incalculable.60 at the beginning of prohibition, the annual consumption of spirits was 101 million gallons.61 by 1926, after the government allocated over one-third of scarce prison space to those convicted of alcohol offenses, the consumption of alcohol doubled. death rates from alcoholism and alcohol poisoning quadrupled from a rate of 1.4 per 100,000 users in 1919 to 4.1 in 1926. by 1931, there were more prisoners serving long sentences for alcohol offenses than for any other crime, including murder, than there were in 1921.62 as historian sean cashman has documented in his book, prohibition: the lie of the land, the lucrative profit from the liquor trade, which might otherwise have been taxed and regulated by government, was instead diverted to violent gangsters and corrupt public officials.63 only after an “overwhelming tide of events that included suffering and hardship to millions of people” did policymakers abandon ideology and revoke prohibition.64 today the lessons of prohibition have been forgotten. ideology again holds sway in the form of the war on drugs despite the devastating effects it has had (and will continue to have) on racial disparities in income. iii. liberal ideologies and policies a. housing policy though not the result of policies promoted solely by liberals, a liberal agenda of expanding home ownership to those who could not afford to take on the debt associated with home ownership has significantly contributed to the housing crisis.65 no group has suffered more from the housing bubble collapse of 2007 than minorities.66 seduced into buying over-priced homes they could not afford, minorities have borne the brunt of foreclosures, victimized by a government policy of pressuring banks to make loans to those who can least afford oppressive debt and encouraging the “securitization” of those home mortgages.67 a clue to the current distortions caused by government housing policy surely arises when one hears from policymakers and media pundits saying words to the effect that “it would be a tragedy for the 59 see u.s. const. amend. xviii (enacted 1919), repealed by u.s. const. amend. xxi (enacted 1933). 60 herman feldman, prohibition; its economic and industrial aspects (1930). 61 id. at 45. 62 id. 63 see sean dennis cashman, prohibition: the lie of the land 59–125 (1981). 64 hardaway, no price too high, supra note 1, at 47. 65 president george bush stated the following on october 15, 2002: "we can put light where there's darkness, and hope where there's despondency in this country. and part of it is working together as a nation to encourage folks to own their own home." jo becker, sheryl gay stolberg, & stephen labaton, bush drive for home ownership fueled housing bubble, n. y. times, dec. 21, 2008, http://www.nytimes.com/2008/12/21/business/worldbusiness/21ihtadmin.4.18853088.html?pagewanted=all&_r=0. 66 interview by pbs with paul taylor, pew research center & roderick harrison, howard university (july 26, 2011), available at http://www.pbs.org/newshour/bb/business/july-dec11/wealthgap_07-26.html; rakesh kochhar, richard fry & paul taylor, pew research center, wealth gaps rise to record highs between whites, blacks, hispanics: twenty-to-one (2011), available at http://www.pewsocialtrends.org/2011/07/26/wealth-gapsrise-to-record-highs-between-whites-blacks-hispanics/. 67 hardaway, housing bubble, supra note 1, at xxii-xxiii; julia patterson forrester, still mortgaging the american dream: predatory lending, preemption, and federally supported lenders, 74 u. cin. l. rev. 1303, 1313-14 (2006); douglas s. massey, isolated, vulnerable and broke, n.y. times, aug. 4, 2011, available at http://www.nytimes.com/2011/ 08/05/opinion/hispanic-families-isolated-and-broke.html. 2013 columbia journal of race and law 59 economy if we allowed the prices of homes to fall to levels at which people could actually afford to buy them.”68 and yet that statement is a concise summary of government housing policy.69 before the government created fannie mae and freddie mac70 in order to “securitize” mortgages by slicing and dicing them for sale to investors,71 there was little need for regulation.72 banks were not tempted to make unsound loans since they knew that if the loans were not repaid, the bank itself would be on the hook. but once banks were permitted and even encouraged to unload their mortgages on to taxpayer supported entities (and ultimately to hapless “investors” via the investment banks), all considerations of prudence and moral hazard were ultimately sacrificed on the altar of ideology, populism, and political opportunism.73 on the populist ideology of “expanding home ownership”,74 the government threatened to punish banks which did not meet loan quotas—first in the community reinvestment act,75 and later in the even more comprehensive and draconian regulations promulgated in the mid-1990’s.76 when the banks responded to this unprecedented pressure by informing regulators that such quotas could not be met without extending mortgages to unqualified buyers, the banks were effectively told to “be more creative.”77 creative they soon became, lowering standards, and reducing down payments, often to zero.78 the explosion in demand for houses wrought by these easy loans to unqualified buyers pushed home prices to astronomical levels79 in what would soon become the greatest economic bubble since the south sea bubble of 1720,80 and before that the dutch tulip bubble of 1637.81 68 joseph e. stiglitz, reversal of fortune, vanity fair, nov. 2008, http://www.columbia.edu/cu/news/clips/ 2008/10/09/reversalvanity.pdf. 69 “still another ‘solution’ proposed by the politicians who created the bubble is to keep the bubble going as long as possible. an example of this agenda is the 2009 bill that hands out $8,000 to people who want to buy a house.” hardaway, housing bubble, supra note 1, at 66; first-time homebuyer credit act 26 u.s.c § 36 (2010). 70 kate pickert, a brief history of fannie mae and freddie mac, time business, july 14, 2008, http://www.time.com/time/business/article/0,8599,1822766,00.html; federal home loan mortgage corporation act, pub. l. no. 91-351, 84 stat. 450 (1970); fannie mae about us: our charter, fannie mae (sept. 23, 2011), http://www.fanniemae.com/portal/about-us/governance/our-charter.html; freddie mac: company profile, freddie mac, http://www.freddiemac.com/corporate/company_profile/ (last visited march 9, 2012). 71 w. scott frame & lawrence j. white, fussing and fuming over fannie and freddie: how much smoke, how much fire?, 19 j. econ. pers. 159, 179 (2005). 72 peter j. wallison, cause & effect: government policies and the financial crisis, 21 critical rev. j. pol. & soc’y 365 (2009) [hereinafter cause & effect]. 73 frame & white, supra note 71, at 179 (certain “transaction costs are actually shifted rather than eliminated: investors believe that they are shielded from credit risk not only by fannie mae and freddie mac, but also ultimately by taxpayers.”). 74 mikael atterhog & han-suck song, a survey of policies that may increase access to home ownership for low-income households, 26 housing, theory & soc’y 248, 256 (2009). 75 the community reinvestment act, 12 u.s.c. § 2901–2908 (2012). 76 cause & effect, supra note 72, at 369–70. 77 dorit samuel, the subprime mortgage crisis: will new regulations help avoid future debacles?, 2 alb. gov. l. rev. 217, 221–23 (2009). 78 cause & effect, supra note 72, at 366–70. 79 id. at 366. 80 richard s. dale, johnnie e. v. johnson, & leilei tang, financial markets can go mad: evidence of irrational behaviour during the south sea bubble, 58 econ. hist. rev. 233, 234–236 (2005); peter m. garber, famous first bubbles: the fundamentals of early manias 115–19 (2000). 81 anne goldgar, tulipmania: money, honor and knowledge in the dutch golden age 231–33 (2007); didier sornette, why stock markets crash: critical events in complex financial systems 9 (2003). 60 race and income disparity vol. 3:1 such bubbles always collapse,82 as do all ponzi schemes, the only question being when. however, when the housing bubble inevitably burst in 2007,83 government policy makers and politicians were unwilling to admit their responsibility for the catastrophe.84 instead of allowing home prices to fall to natural market levels at which average wage earners could afford to buy them, policy makers are now perversely trying to reignite the bubble by demanding that banks once again lend money to those without twenty percent down payments or the equivalent equity for refinancing.85 banks that tightened their lending standards to avoid a repeat of the bubble after learning the hard way that the financial consequences of unsound lending can be severe, are now being threatened once again with sanctions if they do not lower their lending standards and waive down payments.86 like the compulsive gambler who throws good money after bad in hopes of recouping his losses, policymakers are yet again printing money like mad87 to reignite the housing bubble and thus prevent home prices from falling to levels at which the average american could afford to buy a house without incurring a lifetime of oppressive debt. meanwhile, hapless under-water homeowners are being left to dangle in the wind while short sales and foreclosures are delayed for years.88 because the government-created housing bubble encouraged homebuyers to treat the equity in their home as a piggy bank from which withdrawals could be made for the purchase of consumer goods,89 the inevitable collapse of the housing market wiped out over seven and a quarter trillion dollars of effective purchasing power and aggregate demand.90 while the wealthiest homeowners enjoyed either a cushion of equity or cash reserves that allowed them to keep their homes even as the housing market collapsed, the poorest homeowners (in particular sub-prime mortgagors, and to a lesser extent alt-b91 mortgagors) faced foreclosure and financial ruin. since minorities were the primary holders of these mortgages, the collapse of the housing bubble in turn exacerbated the already great wealth disparities between races. 82 famous bubbles, pbs, http://www.pbs.org/wgbh/pages/frontline/shows/dotcon/historical/ (last visited mar. 11, 2012). 83 kathryn j. byun, the u.s. housing bubble and bust: impacts on employment, monthly lab. rev., dec. 2010, at 4. 84 jeff jacoby, frank’s fingerprints are all over the financial fiasco, boston globe, sept. 28, 2008, http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2008/09/28/franks_fingerprints_are_all_over_ the _financial_fiasco/. 85 lucy madison, obama unveils mortgage refinancing plan, cbs news (feb. 1, 2012, 12:51 pm), http://www.cbsnews.com/8301-503544_162-57369731-503544/obama-unveils-mortgage-refinancing-plan/; making home affordable, http://www.makinghomeaffordable.gov/pages/default.aspx (last visited mar. 16, 2012). 86 james pethokoukis, no surprise: tarp bailout encouraged banks to make riskier loans, the american (mar. 7, 2012, 12:48 pm), http://blog.american.com/2012/03/no-surprise-tarp-bailout-encouraged-banks-to-make-riskierloans/. 87 mark whitehouse, number of the week: government’s overwhelming role in mortgages, wsj blogs (feb. 12, 2011 5:00 am), http://blogs.wsj.com/economics/2011/02/12/number-of-the-week-governments-overwhelming-role-inmortgages/; sewell chan, bernake weighs risks of new action, n.y. times, oct. 15, 2011, http://www.nytimes.com/ 2010/10/16/business/economy/16fed.html?_r=1&hp=&pagewanted=print. 88 kathleen m. howley, delays in short sales frustrate home buyers, bloomberg businessweek (apr. 14, 2011 5:00 pm), http://www.businessweek .com/magazine/content/11_17/b4225013122956.htm. 89 peter j. brady, glenn b. canner & dean m. maki, the effects of recent mortgage refinancing, fed. reserve bulletin (july 2009), http://www.federalreserve.gov/pubs/bulletin/2000/0700lead.pdf. 90 stabilizing and healing the housing market, economic report of the president 110 (2012), available at http://www.whitehouse.gov/sites/default/files/microsites/erp_2012_ch_4.pdf. 91 michael j. kling, subprime and nonprime are blurring in the indistinct world of alt-b lending, mortgageorb (sept. 10, 2007), http://www.mortgageorb.com/e107_plugins/content/content.php?content.388 (“the exact definitions vary by company, but all agree the category is between alt-a and subprime, a classification for loans that don’t quite qualify for alt-a.”). 2013 columbia journal of race and law 61 b. immigration according to the most recent data released by the u.s. department of labor, the black unemployment rate at the height of the 2008-2012 recession was 17.3%,92 while among hispanics it was 13.9%.93 among black teenagers, the unemployment rate rose to a staggering 49.1%.94 this compares unfavorably with the highest white unemployment rate of 9.7%.95 these relative unemployment rates explain much of the difference in incomes between the races.96 the effect of immigration policy on both unemployment rates and incomes was recognized by the policy makers of the new deal during the great depression.97 during the prior administration of herbert hoover, the government had encouraged the importation of cheap foreign labor in excess of 300,000 immigrants a year in order to accommodate the demands of “big business” for lower wages and higher profits.98 but with unemployment reaching almost twenty-five percent in 1933,99 the roosevelt administration immediately recognized the need to drastically cut the quota for cheap foreign labor to but 23,000 a year.100 despite the complaints of large corporations, which had grown accustomed to paying the low wages made possible by the massive import of cheap foreign labor, the roosevelt administration began to vigorously enforce the immigration laws in an effort to address massive unemployment.101 illegal immigrants were deported in large numbers.102 92 labor force statistics from the current population survey, unemployment level – african americans january 2010, bureau of labor statistics, http://www.bls.gov/cps/cpsatabs.htm (follow “table a-2. employment status of the civilian population by race, sex and age” hyperlink; then select “unemployment rate, black or african american”; then follow “retrieve data” hyperlink). 93 id. (follow “table a-3. employment status of hispanic or latino population by sex and age” hyperlink; then select “unemployed, hispanic or latino ethnicity”; then follow “retrieve data” hyperlink). 94 id. (follow “table a-2. employment status of the civilian population by race, sex and age” hyperlink; then select “unemployed, black or african american, both sexes, 16 to 19 years”; then follow “retrieve data” hyperlink). 95 id. (follow “table a-2. employment status of the civilian population by race, sex and age” hyperlink; then select “unemployed, whites”; then follow “retrieve data” hyperlink). 96 u.s. dep’t of labor u.s. bureau of labor statistics, labor force characteristics by race and ethnicity, 2010 report 1032 (2011). 97 the effect has only gotten worse in more recent times. for example, in the 1970s, “office buildings in los angeles hired union workers as janitors, paying high wages and substantial benefits. then greedy businessmen thirsty for cheap labor and high profits began to hire independent contractors who in turn hired illegal immigrants. within a year wages were cut by two-thirds and benefits were eliminated.” robert hardaway, reagan/bush amnesty agenda an economic catastrophe for minorities and legal immigrants, huffington post college (aug. 15, 2012) http://www.huffingtonpost.com/robert-hardaway/illegal-immigration-amnesty-_b_1729649.html. likewise, “at a time when unemployment among african americans approached eighty percenty, greedy american garment workers petitioned the ins to import more cheap labor on grounds that there was an unskilled labor shortage, repeating the tired mantra that americans won’t do the dirty work that illegal immigrants are willing to do—ignoring the fact that it isn’t the dirty wages that americans disdain” id. rather it is the low wages that are disdained, which in turn are caused by the expansion of labor supply caused by illegal immigration. id.; see generally population, law and the environment, supra note 1, at 138-39. 98 immigration act of 1924, pub. l. no. 68-139, 43 stat. 153 (1924). 99 robert vangiezen & albert e. schwenk, compensation from before world war i through the great depression, bureau of labor statistics (2001), http://www.bls.gov/opub/cwc/cm20030124ar03p1.htm. 100 united states immigration handbook vol i. strategic and practical information 57 (2013). 101 history of illegal immigration in u.s., end illegal immigration, http://www.endillegalimmigration.com/history_of_illegal_immigration_in_us/index.shtml (last updated apr. 11, 2012) (“some mexicans repatriated themselves either voluntarily or under pressure from local welfare officials. others were deported. eventually between about 500,000 to 1,000,000 mexicans left the united states between 1929 and 1939. this was due to deportation, as well as other factors such as the threat of deportation and acute unemployment.”). while this policy of the democratic party seems harsh today, it pales compared to its policy of herding over 100,000 62 race and income disparity vol. 3:1 roosevelt and his administration understood that the economic principle of supply and demand applied to labor. as paul samuelson’s elementary, first-year textbook explains: “the overall effect of recent immigration has been an increase in the supply of low-skilled workers in the united states relative to high-skilled workers. studies have estimated that this change in supply has contributed to the decline in the wages of less educated groups relative to the college-educated.”103 despite the invocation of ideology by populist politicians seeking the votes of black americans, a harris poll revealed that sixtythree percent of african americans recognized that the importation of cheap labor was a major factor in the unemployment rate of black americans.104 examples of the devastating effects of immigration policy on income disparity by race in the u.s. abound. in the 1970s, most large office buildings in los angeles hired black americans and paid generous wages and benefits. but with the dramatic influx of cheap foreign labor, building managers reverted to hiring independent contractors paying pittance wages to immigrants, many of them illegal.105 thousands of black americans lost their jobs, and wages remained depressed.106 in 1965, just when the civil rights act was raising the hopes of black americans, congress acted to nullify their economic hopes by importing millions of additional cheap foreign laborers.107 indeed, over 25 million immigrants were added to the u.s. population between 1970 and 1990.108 the center for immigration studies has concluded: when blacks ask why their economic plight has not improved since the civil rights act took effect in 1965, one answer is the immigration act passed the same year. since then, the importation of millions of foreign workers has done two things: it has provided an alternative supply of labor so that urban employers have not had to hire available black jobseekers, and the foreign workers have oversupplied labor to low skill markets. that has kept jobs in a perpetual state of declining real wages that are incapable of lifting unskilled black workers out of poverty.109 perhaps the most devastating conclusion of the study was that “whether intended or not, the present immigration policy is a revived instrument of institutional racism.”110 a study by immigration researcher gary imhoff has revealed that the rich reap most of the benefits of illegal immigration: americans into concentration camps. see, e.g., donna k. nagata, the japanese american internment: exploring the transgenerational consequences of traumatic stress, 3 j. traumatic stress 47 (1990). 102 id. 103 paul a. samuelson & william d. nordhaus, economics 253 (19th ed. 2010). 104 mandel et. al., the immigrants, businessweek, jul. 13, 1992, http://www.businessweek.com/stories/199207-12/the-immigrants. 105 richard d. lamm & gary imhoff, the immigration time bomb: the fragmenting of america 62-63 (1985). 106 id. 107 vlae kershner, a hot issue for the 90s: california leads in immigration—and backlash, s.f. chron., june 21, 1993, at a6. 108 vernon m. briggs, despair behind the riots: the impediment of mass immigration, 11 ctr. for immigration stud. 1 (1992). 109 id. 110 id. 2013 columbia journal of race and law 63 . . . [i]f an influx of illegal professionals could lower the wages of the overpaid, of doctors and lawyers, rather than the wages of the poor, there might be some economic benefit to their coming to this country. instead, it is low-wage labor markets, the wages at the bottom that are being depressed.111 the study concludes that immigration “widens the difference between classes in the united states; it keeps down the price of hiring a maid or a gardener for the rich while it makes things worse for the poor.”112 as early as 1895, the preeminent black educator, booker t. washington, in a famous speech to the titans of industry at the atlanta international exposition, pleaded with the audience of robber barons to stop their racist policies of importing cheap white foreign labor to avoid having to hire freed black slaves. he told the allegory of a ship lost at sea: suddenly the ship sighted a friendly vessel. from the mast of the unfortunate vessel was seen a signal “water, water; we die of the thirst”. (the answer came back): “cast down your bucket where you are.” the captain of the distressed vessel . . . cast down his bucket, and it came up full of the fresh sparkling water from the mouth of the amazon river . . . to those of you who look to the incoming of those of foreign birth, ‘cast down your bucket where you are . . . and we shall stand by you with a devotion that no foreigner can approached, ready to interlac(e) our industrial, commercial, civil and religious life with yours.”113 washington’s plea to the titans of industry to eschew the importation of cheap foreign labor in favor of hiring african americans was ignored, and continues to be ignored today by politicians unwilling to enforce the law against illegal immigration. 114 c. tax policy the current u.s. income tax code awards the highest subsidies (in the form of deductions for mortgages up to a million dollars) to the wealthiest one-third of americans who can afford the grandest and most expensive houses.115 no subsidies at all are given to the bottom two thirds of american homeowners, either because they can't afford to buy a house at all, or because the housing deduction does not exceed the standard deduction given to all taxpayers.116 because a higher percentage of the wealthy are white and housing represents a large percentage of total wealth, this subsidy to the richest homeowners, over time, exacerbates the pre-existing disparity between black and white wealth. 111 lamm & imhoff, supra note 105, at 62–63. 112 mandel, supra note 104, at 119. 113 booker t. washington, the atlanta exposition address, in up from slavery: an autobiography (1901) available at http://www.bartleby.com/1004/14.html. 114 see, e.g., tom cohen, obama administration to stop deporting some young illegal immigrants, cnn (june 16, 2012), http://www.cnn.com/2012/06/15/politics/immigration/index.html. 115 hardaway, housing bubble, supra note 1, at 131; roger lowenstein, who needs the mortgage-interest deduction, n.y. times, mar. 5, 2006, http://www.nytimes.com/2006/03/05/magazine/305deduction.1.html ?pagewanted=all. 116 hardaway, housing bubble, supra note 1, at 131; lowenstein, supra note 115. 64 race and income disparity vol. 3:1 in the 2012 presidential campaign, mitt romney advocated an overall marginal tax rate reduction of twenty percent in exchange for the elimination of many of the current deductions.117 critics of this plan have noted that such deductions would almost certainly have to include a reduction, if not the elimination, of the one million dollar home mortgage deduction currently enjoyed by america’s richest homeowners.118 president obama rejected any such formula,119 although it is true that many conservatives would also oppose the elimination of the home mortgage deduction as well. superficial solutions to racially based income disparities, such as raising the taxes on the rich or big oil companies as a means of redressing income disparities have proved self-defeating. policy makers of both the left and the right must consider the actual consequences of their policies rather than blindly relying on ideological preconceptions. for example, when the marginal tax rates in the u.s. were ninety percent, income disparities were not significantly different than when marginal rates were reduced to thirty-five percent under kennedy and reagan. the non-ideological explanation for this is that when rates were confiscatory, the wealthy either took advantage of complex tax deductions that required professional tax assistance unaffordable by the poor, or else invested in unproductive high-risk schemes. this is why incomes of those in the poorest quartile of income earners increased by five percent during the reagan tax cut years (1981–89), but declined by five percent during the pre-reagan years (1973–81) when marginal tax rates were higher.120 one has only to compare the income disparity in socialist countries (such as cuba or north korea, or until the 1990’s, the soviet union) in which a political elite enjoys a standard of living many times above that of the common people, to realize that economic freedom and equality of opportunity is the key to wealth for both the lower and middle classes.121 without knowledge of the economics of corporate america, economically disadvantaged voters can fall pray to populist politicians calling for policies imposing discriminatory taxes on such entities as “big oil.” in a basic economics class, they would learn that forty-one percent of oil companies are owned by pension funds (including union pension funds) and retirement accounts, and another fortythree percent are owned by mutual funds and small investors.122 only 1.5% are owned by executive 117 mitt romney, believe in america: mitt romney’s plan for jobs and economic growth, tax policy 3 (2012) available at http://www.thepoliticalguide.com/items/mittromney/taxpolicy.pdf. in the long run, mitt romney will pursue a conservative overhaul of the tax system that includes lower and flatter rates on a broader tax base. the approach taken by the bowles-simpson commission is a good starting point for the discussion. the goal should be a simpler, more efficient, user-friendly, and less onerous tax system. every american would be readily able to ascertain what they owed and why they owed it, and many forms of unproductive tax gamesmanship would be brought to an end. conversely, tax reform should not be used as an under-the-radar means of raising taxes. where reforms that simplify the code or encourage growth have the effect of increasing the tax burden, they should be offset by reductions in marginal rates. washington’s problem is not too little revenue, but rather too much spending. id. 118 jim zarroli, romney’s plan to broaden tax base finds critics, npr (aug. 27, 2012), http://www.npr.org/blogs/itsallpolitics/2012/08/27/160083532/romney-s-plan-to-broaden-tax-base-finds-critics; sam stein, mark rubio on romney tax plan: don’t touch the biggest deductions, huffington post (oct. 16, 2012), http://www.huffingtonpost.com/2012/10/16/marco-rubio-mitt-romney-tax-plan_n_1970484.html. 119 ezra klein, the massive policy gap between obama and romney, wash. post, aug. 6, 2012, http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/08/06/the-massive-policy-gap-between-obama-andromney/. 120 william a. niskanen & stephen moore, cato institute policy analysis, supply-side tax cuts and the truth about the reagan economic record (1996) at figure 12. 121 francis fukuyama, dealing with inequality, j. of democracy 79, 84 (2011); 122 robert hardaway, who is big oil? not the fat guy smoking a cigar? denver bus. j., sept. 5–11, 2008, at a39. 2013 columbia journal of race and law 65 insiders.123 they would also learn from a basic economics course that any discriminatory tax on big oil constitutes a cost input in the same way that steel constitutes a cost input. since the price of a gallon of gas reflects all cost inputs, any increase in those costs—whether it is the cost of a tax or the cost of steel—must ultimately be reflected in the gas price. therefore, from an economic standpoint, a tax on big oil is the substantial equivalent of a gas tax at the pump. since gasoline costs constitute a higher percentage of the income of the poor than the rich, the cost of the tax falls disproportionately on the poor.124 an economically disadvantaged voter who does not understand this is likely to vote against her own economic interest by voting for a demagogic politician’s call for a higher tax on big oil. similar heavy tax burdens fall disproportionately on the poor and disadvantaged in the form of high corporate taxes, which are now among the highest in the world. few realize that corporate taxes are really nothing more than disguised regressive sales taxes on the poor. d. educational policy and busing numerous studies have shown that school segregation harms the educational aspirations of minorities.125 as a result, minorities continue to languish in america’s public schools.126 rich and mostly white families are able to buy a safe learning environment for their children in private schools.127 an entrenched educational establishment has fiercely obstructed attempts to level the playing field for minority children, many of whom seek to attend safer charter schools,128 or to use public vouchers to attend private schools.129 in 1966, the u.s. office of education commissioned the “coleman report” which revealed that “schools are not very important in determining student achievement.130 families, and to a lesser extent peers, are the primary determinant of variations in performance.131 despite this, demagogic politicians continue to claim that more money is the key to providing an adequate education to minorities.132 in fact, schools with the lowest expenditures per student often perform the best, while schools that spend the most perform the worst. the reasons why students in school systems with the lowest funding, including parochial schools, so often perform better than students in school systems where more per capita is spent on their education has been explained by the coleman report for the u.s. office of education: “[w]ith less money, . . . schools are less flexible and retain traditional curriculum and academic structures that have fallen victim to pop trends and political pressure in public schools since 123 id. 124 sarah e. west, should distributional considerations hold up higher gasoline taxes?, resources for the future (jun. 22, 2009), http://www.rff.org/publications/wpc/pages/09-06-22-should-distributional-considerationshold-up-higher-gasoline-taxes.aspx. 125 see, e.g., brown v. bd. of educ., 347 u.s. 483, 494 (1954). 126 status and trends in the education of racial and ethnic minorities, nat’l ctr. for educ. statistics, http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2010015 (last visited dec. 5, 2012). 127 robert w. fairlie & alexandra m. resch, is there “white flight” into private schools?: evidence from the national educational longitudinal survey, institute for policy research, northwestern university 20–21 (nov. 2000), http://www.ipr.northwestern.edu/jcpr/workingpapers/wpfiles/fairlie_resch.pdf. 128 erica frankenberg & chungmei lee, charter schools & race: a lost opportunity for integrated education, 32 educ. pol’y analysis archives 12 (2003), available at http://epaa.asu.edu/ojs/article/view/260/386. 129 william mcgurn, the naacp vs. black schoolchildren, wall st. j., june 7, 2011, at a16. 130 j. coleman, et al., equality of educational opportunity (1966). 131 eric a. hanushek, when school finance “reform” may not be good policy, 28 harv. j. on legis. 423, 431 (1991). 132 linda darling-hammond, president obama and education: the possibility for dramatic improvements in teaching and learning, 79 harv. educ. rev. 210, 212 (2009). 66 race and income disparity vol. 3:1 the 1960’s.”133 a national assessment of educational progress report revealed that iowa, which ranked twenty-seventh in per capita expenditures ranked number one in sat test scores, and utah, which ranked dead last in per capita expenditures, finished fourth in achievement tests.134 meanwhile, students in countries that spend less than half what american schools spend rank highest in international achievement tests, while students in american schools ranked near the bottom.135 a major cause of income disparity, particular between racial groups, is the failure of public education in the united states to teach basic economic theory.136 this failure falls heaviest on minorities inasmuch as a higher percentage of minority students leaving school must begin to make a living from a lower family economic base. without knowledge of basic economic theory, both microeconomic and macroeconomic, a higher percentage of minority students face far more challenges than their white counterparts in achieving higher incomes.137 the national center for education statistics’ 2006 study revealed that half of all public school students tested did not understand what banks did with money deposited in their checking account.138 only thirty-six percent could identify the government’s primary source of revenue, and only one-third could explain how interest rates might affect a borrower’s decision to borrow money. only three percent performed at an “advanced” level.139 while the economic consequences of not being taught how to balance a checkbook might be obvious, less patent is how a lack of knowledge of macroeconomic theory might result in minority wage earners voting for politicians and policies that serve to exacerbate, rather than alleviate racial disparities in income. in the 1970’s it became an ideological imperative of the liberal wing of the democratic party that busing should be an indispensable element of ensuring desegregation of public schools.140 accordingly, in 1974 senator joseph biden cast the deciding vote in the senate to defeat an anti-busing amendment.141 133 america goes to school, supra note 1, at 43. see secretary arne duncan, remarks at oecd's release of the program for international student assessment (pisa) 2009 results, u.s. dep’t of educ. (dec. 7, 2010), http://www.ed.gov/news/speeches/secretary-arne-duncans-remarks-oecds-release-program-international-studentassessment[hereinafter pisa 2009 results]; see generally oecd, pisa 2009 results: what students know and can do (2010), available at http://www.oecd.org/edu/pisa/pisaproducts/48852548.pdf (ranking fifteen-year-old american students fourteenth in literacy, and twenty-fifth in mathematics, and seventeenth in sciences among the other pisa countries, despite the fact that the united states spends more money per student on education than every other study participant except luxemburg). 134 sat mean scores of college-bound seniors and percentage of graduates taking sat by state or jurisdiction: selected years 1995–1996 and 2009–2010, nat’l. ctr. for educ. statistics (sept. 2010), http://nces.ed.gov/programs/ digest/d10/tables/dt10_154.asp. 135 see pisa 2009 results, supra note 133 (showing the united states ranks below korea, finland, china, and many others on the mathematics scale). 136 nat’l ctr. for educ. statistics, inst. of educ. scis. & u.s. dep’t of educ., the nation’s report card: economics 2006, national assessment of educational progress at grade 12, at 4–5 (2007), available at nces.ed.gov/nationsreportcard/pdf/main2006/2007475.pdf [hereinafter the nation’s report card]. (“in 2006, in the first ever national assessment of economics, . . . forty-two percent performed at the proficient level or higher. on average, male students scored higher than female students, and white and asian/pacific islander students scored higher than other racial/ethnic groups.” only three percent of students “demonstrated advanced economics knowledge and skills.”). 137 see generally hardaway, housing bubble, supra note 1, at 59–61. 138 the nation’s report card, supra note 136, at 13. 139 id. at 5. 140 stephen j. caldas & carl l. bankston iii, forced to fail 161 (2005). 141 jeffrey a. raffel, the politics of school desegregation: the metropolitan remedy in delaware 115 (1980). 2013 columbia journal of race and law 67 this vote followed on the heels of the 1971 supreme court decision to uphold a federal district court judge’s order to force students in a north carolina school district to be bussed according to the color of their skin.142 this was in order to ensure that all 107 schools in the district be made approximately seventy-one percent white.143 according to this order, the school district was required to take note of the skin color of each student and then assign the student to a school according to that color. despite a provision in title iv of the civil rights act of 1964, which strictly forbade the “assignment of students in order to overcome racial imbalance,” the supreme court upheld the order.144 this was followed in 1973 with an even more draconian supreme court decision in keyes v. district no 1 striking down a denver school district’s attempt to establish a race-neutral assignment of students.145 the consequences of mecklenburg and keyes turned out to be catastrophic for the desegregation cause. due to the white flight to suburban and private schools triggered by busing, the percentage of whites in the denver public schools dropped precipitously from sixty-four percent to thirty-one percent.146 nationally, the subsequent abandonment of inner-city schools resulted in the percentage of african americans attending predominately minority schools rising from 63.3% to 66% in 1992.147 for hispanics the rise was even more dramatic, rising from 56% in 1972 to 73.4% in 1992.148 in large urban areas such as new york, the resegregation of the public schools reached staggering proportions, until over eighty-four percent of african americans were relegated to all-minority schools.149 while few doubted the original “good intentions” manifested in the democratic ideology of busing, it soon became apparent that ideology had served to trump both rationality and good sense. as the renowned african american economist thomas sowell noted in his treatise “patterns of black excellence,” the very real educational problems of black children, and the early hopes that desegregation would solve them. . . degenerated into a numerical fetish and a judicial unwillingness to lose face. what actually happens to black children. . . has been relegated to a secondary consideration in principle, and less than that in practice.150 meanwhile, despite polls revealing that at least “half of the american black population now opposes busing,”151 and that a majority of mexican americans vehemently opposed it,152 the liberal agenda continued to advocate the implementation of busing even in the face of its tragic consequences.153 142 swann v. charlotte-mecklenburg bd. of educ., 402 u.s. 1 (1971). 143 lino a. graglia, from prohibiting segregation to requiring integration: developments in the law of race and the schools since brown, in school desegregation: past, present, and future 69, 80 (walter g. stephan & joe r. feagin eds., 1980). 144 42 u.s.c. § 2000c(b) (1964). 145 keyes v. sch. dist. no. 1, 413 u.s. 189, 208–09 (1973). 146 hardaway, america goes to school, supra note 1, at 122. 147 gary orfield et al., the growth of segregation in american schools: changing patterns of separation and poverty since 1968, report of the harvard project on school desegregation to the national school boards association 14 (1993). 148 id. 149 id. at 19. 150 thomas sowell, patterns of black excellence, 43 the pub. int. 26, 43 (1976). 151 andrew m. greeley, school desegregation and ethnicity, in school desegregation: past, present, and future 133, 153 (walter g. stephan & joe r. feagin eds., 1980). 152 david j. armor, white flight and the future of school desegregation, in school desegregation: past, present, and future 216 (walter g. stephan & joe r. feagin eds., 1980). 68 race and income disparity vol. 3:1 iv. mixed conservative and liberal policies a. local residential and exclusionary policies in the years since the passage of the civil rights act and the fair housing act, the u.s. has progressed far beyond the point where racist homebuilders and homeowners are free to openly advertise racially discriminatory restrictions on home purchases. nevertheless, despite significant progress, many neighborhoods in the u.s. remain substantially segregated by socioeconomic status, and therefore race.154 the prevalence of racially-segregated neighborhoods is a major reason why many neighborhood schools in the u.s. remain more racially segregated than they were in the years immediately before the supreme court decision in brown v. board of education in 1954.155 segregation by race in both housing and education remains a significant contributing factor in creating racial disparity in incomes.156 while underlying differences in wealth and socio-economic backgrounds explain much of the de facto segregation in housing that exists today, another major factor is local exclusionary policies in the form of discriminatory zoning. in 1926, the legal basis for exclusionary zoning was first established in village of euclid v. amber realty company, in which the supreme court upheld the constitutional power of local governments to promulgate restrictions which serve, in practice, to exclude persons of low socio-economic status from buying housing in a particular community.157 the court held that a zoning ordinance can only be declared unconstitutional if its provisions are clearly arbitrary and unreasonable.” since that case, local zoning bodies—cities, counties, townships, and states—have been careful to couch the rationale for the zoning ordinances they promulgate in terms of the “health and safety of the community” in order to avoid any challenges based on unlawful takings under the fifth amendment or violation of the “substantive due process” rights of those who suffer financial loss or the diminution of the value of property from the ordinance.158 in a series of articles and books, professor edward ziegler of the university of denver sturm college of law has revealed the catastrophic effects that euclid and its progeny have had on the environment and living standards of the poor.159 these effects have, in turn, contributed significantly to the disparity in incomes between racial groups. 153 stephanie m. jackson, school desegregation; the myth and the reality: an essay based on common ground, 11 nat’l black l.j. 361, 364 (1988) (discussing how forced busing pitted poor whites against poor blacks without the elite liberals having to pay a price). 154 douglas s. massey & nancy a. denton, american apartheid: segregation and the making of the underclass 131 (1993). 155 brown v. bd., supra note 125. 156 massey & denton, supra note 154, at 85–86. 157 vill. of euclid v. amber realty co., 272 u.s. 365 (1926). 158 constr. indus. assoc. of sonoma cnty. v. city of petaluma, 522 f.2d 897 (9th cir. 1975); tahoe-sierra pres. council, inc. v. tahoe reg’l planning agency, 638 f. supp. 125 (1986). 159 edward h. ziegler, the case for megapolitan growth management in the 21st century: regional urban planning and sustainable development in the united states, 41 urb. law. 147, 147–49 (2009); daniel p. selmi. james a. kushner & edward h. ziegler, land use regulation 551 (vicki been et al. eds., 3d ed. 2008) [hereinafter land use]; edward h. ziegler, statewide and regional land use controls, in arden h. rathkopf, rathkopf’s the law of zoning and planning ch. 36 (1975); edward h. ziegler, constitutional taking claims in land use regulation, in arden h. rathkopf, rathkopf’s the law of zoning and planning ch. 6 (1975); edward h. ziegler, urban sprawl, growth management and sustainable development in the united states: thoughts on the sentimental quest for a new middle landscape, 11 va. 2013 columbia journal of race and law 69 in boulder, colorado, for example, zoning requirements currently require large lot sizes so that only the wealthiest of its residents can afford to buy lots and build houses within the city.160 while such requirements ensure that wealthy homeowners will not be threatened by the building of affordable multidwelling units in proximity to their neighborhoods (which might adversely affect the market value of their expensive homes), these restrictions effectively exclude persons of lower socio-economic status from the city limits. by effectively restricting the supply of housing in the city center, the exclusionary policies ensure dramatic increases in the values of the homes of the wealthiest homeowners at the expense of the poor. those who are excluded from living in the city limits, but who work in the city, are thereby relegated to living many miles outside the limits and commuting long distances at considerable expense.161 not surprisingly, the wealthier members of the zoning boards which promulgate and enforce such exclusionary policies aim to justify these self-serving restrictions in terms of “protecting the environment.” in fact, their policies create the opposite effect by encouraging urban sprawl and relegating the poor to outlying areas that require expensive and time-consuming commutes to the city center.162 in such a way, a policy of “keeping the riff raff out” masquerades on the liberal ideological foundations of protecting the environment—as if the farmland and meadows near the house of the rich are more sacrosanct than the farmland and meadows in the outlying areas to which the poor are ultimately relegated. a study by peter whoriskey, cited by ziegler, has concluded that such exclusionary zoning policies have in fact “accelerated the consumption of woods and fields and pushed developers outward in their search for home sites.”163 perhaps the most notorious example of exclusionary restrictions contributing to income disparities is construction industry association of sonoma county v. city of petaluma, in which petaluma placed an arbitrary 500-unit limitation on residential development units “in order to protect its small town character and surrounding open space.”164 in that case, the ninth circuit acknowledged that the ordinance has “a purpose and effect of exclusion,” and that if similar ordinances were implemented across the state that there would be “a decline in regional housing stock . . . and a deterioration in the quality and choice of housing available to income earners with real incomes of $14,000 per year or less.” nevertheless, the court upheld the exclusionary zoning ordinance based on its purported purpose to “protect [the city’s] small town character.”165 as long as the powerbrokers sitting on zoning boards and city councils receive sound legal advice when promulgating exclusionary policies, even the most transparent motives of greed and racism can be couched in the language of ideologically liberal objectives which will meet the minimal due process standards of euclidian zoning ordinances. it should be noted that at least justice scalia has expressed concern that because such justification “can be formulated in practically every case, this j. soc. pol’y & l. 26, 47–50 (2003); edward h. ziegler, partial taking claims, ownership rights in land and urban planning practice: the emerging dichotomy between uncompensated regulation and compensable benefit extraction under the fifth amendment takings clause, 22 j. land resources & envtl. l. 1 (2002). 160 see heath urie, questions persist on house-size rules, daily camera, july 11, 2010, at a1 (showing that the city of boulder passed a new law limiting house footprints in an effort to ameliorate this problem). 161 see land use, supra note 159, at 580–81. 162 id. at 549. 163 peter whoriskey, gucci sprawl: density limits only add to sprawl, wash. post, mar. 8, 2003, as reprinted in land use, supra note 159, at 560. 164 city of petaluma, 522 f.2d at 902. 165 id. 70 race and income disparity vol. 3:1 amounts to whether the legislation has a stupid staff. we think that the takings clause requires courts to do more than insist upon artful harm-preventing characterizations.”166 the 2000 case of woodwind estates v. gretkowski may well illustrate what may happen if a planning commission fails to get good legal advice.167 in gretkowski, an obviously conservative planning commission demanded that plaintiff developers make “socioeconomic background and income levels of prospective tenants a condition of subdivision approval.”168 with their true conservative motives exposed, the third circuit reversed a lower court’s ruling upholding the restrictions on development.169 journalist michael berger reported on this case as follows: while trying to develop affordable houses. . . woodland estates ran smack into the nimby (not in my backyard) syndrome. neighbors of the proposed project didn’t like the idea, at least, not in their neighborhood. banding together (as such groups always do). . .the concerned neighbors of woodwind estates . . . sought to stop the project by peppering the stround township planning commission with euphemisms. they were concerned about the income level of potential residents, as well as their socioeconomic background. fretting about the effect of such people on local property values, they urged project denial simply because they were opposed to low-income residents moving into their community.170 while the most blatantly racist housing policies have long since been stricken as violations of the equal projection clause of the u.s. constitution,171 local exclusionary policies based on neutral characteristics have achieved the same results as their openly racist progenitors and have become a significant factor in creating racial disparities in income. both liberal “environmentalists” and conservatives seeking to preserve the value of their homes by excluding those with a lower socioeconomic status have thus contributed significantly to racial income disparities. b. trade policy without knowledge of the basic economic concept of the law of comparative advantage,172 voters can fall pray to populist politicians who espouse protectionist measures and tariffs, claiming that such policies will “protect american jobs.” as any basic economic text reveals, however, the overall economic impact of tariffs falls most heavily on consumers.173 in one typical example illustrated in the samuelson text, the effect of a two dollar tariff is a “gain to producers of $250, a gain to the government 166 lucas v. s.c. coastal council, 505 u.s. 1003, 1025 n.12 (1992). 167 woodwind estates v. gretkowski, 205 f.3d 118 (3d cir. 2000). 168 id. at 125. 169 id. 170 michael berger, building blues, l.a. daily jour., may 3, 2001, at 7. 171 see, e.g., jones v. alfred h. mayer co., 392 u.s. 409 (1968); resident advisory bd. v. rizzo, 564 f.2d 126 (3d cir. 1977); clark v. universal builders inc., 501 f.2d 324 (7th cir. 1974); gautreaux v. chicago hous. auth., 503 f.2d 930 (7th cir. 1974); male v. crossroads assocs., 469 f.2d 616 (2d cir. 1972). 172 crossroads assocs., 469 f.2d at 688. (“the principle of comparative advantage holds that a country can benefit from trade even if it is absolutely more efficient (or absolutely less efficient) than other countries in the production of every good. indeed, trade according to comparative advantage provides mutual benefits to all countries.”). 173 samuelson & nordhaus, supra note 103, at 353. 2013 columbia journal of race and law 71 of $200, and a loss to consumers of $550.00. the net social cost (counting each of these dollars equally) is therefore $100.”174 an even more devastating result of tariffs is that they invite retaliatory tariffs by the countries on which they are imposed, thus increasing the cost to consumers of imported goods.175 thus, the typical tariff is the equivalent of a regressive sales tax on basic goods, which falls most heavily on the lowest economic groups, particularly minorities. in the late 1920’s, for example, conservative republican politicians pushed through the infamous “smoot-hawley” tariffs, which invited retaliatory tariffs from europe, virtually halved trade, and thereby ushered in the great depression.176 liberal politicians, particularly those in constituencies with a high number of union members, are more likely to support an agenda of protectionism that results in high tariffs that ultimately result in higher prices for consumer goods.177 conservative politicians, whose philosophical roots trace back to smoot-hawley also advocate protectionist policies—most recently by supporting high tariffs on tires.178 by falling most heavily on the poor, these higher prices constitute an effective regressive tax on the incomes of the poor, and thereby exacerbate income disparities. perhaps most cynical on the part of groups advocating protectionist tariffs is the claim that they are concerned about the environmental or labor policies of the countries on which tariffs are imposed to justify the enormous financial burdens placed on america’s poorest consumers.179 v. conclusion adherence to ideology by both liberals and conservatives has often proven to be an insuperable obstacle to the adoption of sound policies directed toward reducing race-based disparities in income. policymakers will best achieve this goal by: providing the poor with access to family planning services; ensuring that women—especially poor women—enjoy the right to choose the size of their family and whether to have an abortion; eschewing ideologically driven policies such as minimum wage laws which encourage employers to out-source jobs to foreign countries, and fall most heavily on the poor, particularly minorities; rejecting higher taxes on the poor in the form of high tariffs on goods; reforming archaic drug laws that fall mostly heavily on minorities; and implementing immigration reform 174 id. at 342 (“in america, it takes 1 hour of labor to produce a unit of food, while a unit of clothing requires 2 hours of labor. in europe the cost is 3 hours of labor for food and 4 hours of labor for clothing. we see that america has the absolute advantage in both goods, for it can produce either one with greater absolute efficiency than can europe. however, america has comparative advantage in food, while europe has comparative advantage in clothing. the reason is that food is relatively inexpensive in america compared to europe, while clothing is relatively inexpensive in europe compared to america. from these facts, ricardo proved that both regions will benefit if they specialize in their areas of comparative advantage—that is, if america specializes in the production of food while europe specializes in the production of clothing.”). 175 klint w. alexander & bryan j. soukup, obama’s first trade war: the us-mexico cross-border trucking dispute and the implications of strategic cross-sector retaliation on u.s. compliance under nafta, 28 berkeley j. int’l l. 313, 324– 25 (2001) (discussing the causes and effects of retaliatory practices between nations). 176 tarrif act of 1930 (smoot-hawley), 19 u.s.c. §§ 1641–1654 (1930); richard e. caves, et al., world trade and payments: an introduction 237 (denise clinton & roxanne hoch eds., 9th ed. 2002). 177 nina easton, why obama is taxing chinese tires, cnnmoney.com (oct. 8, 2009), http://money.cnn.com/2009/10/07/news/economy/obama_china_tires_tariff.fortune/?postversion=2009100808. 178 gene epstein, trampled in the presidential debate: adam smith, barron’s (oct. 20, 2012), http://online.barrons.com/article/sb50001424053111904034104578058623256267956.html (romney stated he would impose “tariffs where i believe that they [the chinese] are taking unfair advantage of our manufacturers.”). 179 environmental review of trade agreements, 3 c.f.r. § 235 (1999). 72 race and income disparity vol. 3:1 that protects both racial minorities and legal immigrants from the ravages of wage declines wrought by illegal cheap foreign labor. in short, liberals and conservatives must put aside ideological preconceptions, be willing to listen to each other, and work together to find meaningful solutions to the problems of income and wealth disparity in the united states. foreword columbia journal of race & law vol. 1 july 2012 no. 3 foreword when the stars begin to fall: introduction to critical race theory & marxism anthony paul farley * my lord, what a morning my lord, what a morning when the stars begin to fall.1 slavery is not dead. slavery is death. slavery is white-overblack to white-over-black to white-over-black, and that continually. whether white-over-black appears before us as slavery or as segregation or as neosegregation is not at all important. all three haunts, slavery, segregation and neosegregation, present us with the same death, white-over-black, that we have all already died. slavery to segregation to neosegregation is not progress, it is not even movement. slavery is death and death is the end. but the motionless movement of death through slavery, segregation and neosegregation is not the end of death. the cycle of repetition, slavery-to-segregation-to-neosegregation, white-over-black to white *  james campbell matthews distinguished professor of jurisprudence, at albany law school. i thank all participants for their brilliant responses to my request that they take seriously a missing element of critical race theory, the critique of political economy, and contribute to this symposium, critical race theory & marxism. i thank the organizers of the national people of color conference at seton hall for granting so much space in the program to post-marxism, post-racialism and other fables of the dispossession, the three-panel stream that i organized. i thank sheila ruby adams, editorin-chief of the columbia journal of race and law, and all her colleagues. i thank maria grahn-farley, as always. i dedicate this project to my friend keith aoki, 1956-2011. 1  my lord, what a morning (traditional). see marian anderson, my lord, what a morning, on spirituals (bmg 1999) and paul robeson, my lord, what a morning, on paul robeson: the complete emi sessions, 1928-1939 (emi 2008), for two beautiful interpretations of the tradition. 227 when the stars begin to fall vol. 1:3 over-black to white-over-black, is not living; it is not life, it is only the imitation of life. critical race theory’s critique of political economy begins by calling the imitation of life into question. the modern world was neither modern nor the world before the middle passage. capitalism is the first system to wind itself around the entire world, and it is the capitalist unification of the globe that most sets us apart from history as modern. the capitalist cycle began with a total death event: slavery. capital, marx observed, has its point of origin in genocide, colonialism and “the conversion of africa into a preserve for the commercial hunting of blackskins.”2 capitalism, born of black slavery, entered history “dripping from head to toe, from every pore, with blood and dirt.”3 frederick douglass described the “blood-stained gate”4 through which everyone passed to begin the capitalist cycle: i have often been awakened at the dawn of day by the most heart-rending shrieks of an old aunt of mine, whom he [the overseer] used to tie up to a joist and whip upon her naked back till she was literally covered with blood. no words, no tears, no prayers from his gory victim seemed to move his iron heart from its gory purpose. the louder she screamed, the harder he whipped; and where the blood ran fastest, there he whipped longest . . . . it struck me with awful force. it was the blood-stained gate, the entrance into the hell of slavery, through which i was about to pass. it was a most terrible spectacle.5 2  marx commented on the global genocide that began the capitalist cycle: the discovery of gold and silver in america, the extirpation, enslavement and entombment in mines of the indigenous population of that continent, the beginnings of the conquest and plunder of india, and the conversion of africa into a preserve for the commercial hunting of blackskins, are all things which characterize the dawn of the era of capitalist production. these idyllic proceedings are the chief moments of primitive accumulation. karl marx, capital (vol i) 915 (ben fowkes trans., 1976). 3  id. at 926. 4  narrative of the life of frederick douglass, an american slave, written by himself 25 (1968) (1845). 5  id. at 24-25. 2012 columbia journal of race and law 228 the “spectacle” reproduces itself each and every cycle.6 slavery is death. we do not want to remember our death, and so we repeat it. repetition of the capitalist cycle is the mode by which our refused memories return to haunt us. the law we hope will banish the shadow becomes instead the vehicle of its return. law, the instrument by which we refuse painful memories, remembers everything, but it remembers only in the mode of repetition. death reproduces itself through law’s memory: the law of slavery has not been forgotten by the law of segregation; the law of segregation has not been forgotten by the law of neosegregation. the law guarding the gates of slavery, segregation, and neosegregation has not forgotten its origin; it remembers its father and grandfather before that. it knows what master it serves; it knows what color to count.7 nothing survived slavery. white-over-black begins with slavery. the endlessly-evolving forms of white-over-black, sometimes called “racial progress,” are not the death throes of slavery, they are its perfection. the rest is just dreaming: up over my head i see freedom in the air up over my head there must be a god somewhere.8 this “freedom in the air” has a cost that is buried in the ground: 6  marx wrote: however long a series of periodical reproductions and preceding accumulations the capital functioning today may have passed through, it always preserves its original virginity. so long as the laws of exchange are observed in every single act of exchange the mode of appropriation can be completely revolutionised without in any way affecting the property rights which correspond to commodity production. marx, supra note 2, at 733. 7  maria grahn-farley, the master norm, 53 depaul l. rev. 1215, 1227 (2004). 8  up over my head (traditional), in sing for freedom: the story of the civil rights movement through its songs 156 (guy and candie carawan eds., 1990) [hereinafter sing for freedom]. 229 when the stars begin to fall vol. 1:3 before i’ll be a slave i’ll be buried in my grave and go home to my lord and be free.9 the critique of political economy is an attempt to awaken us from the dream that slavery is over. critical race theory & marxism is therefore a hopeful enterprise. if there is reason to hope, and if that hope is something more than morbid, then it surely must be the hope that the dead are not dead, only sleeping. if the dead are only sleeping, then there is a chance that they are dreaming. if the slave dreams, and if the dream is a wish-as-if-fulfilled, then it must be a dream of a freedom that waking life forbids. if the dream is the disguise of the wish, then the slave’s dream, the substance of the thing it hopes for, must be the dream of waking from the non-life of slavery, of waking “one glad morning.”10 singing is an especially hopeful form of dreaming: one glad morning when this life is over i’ll fly away11 when we sing we reveal things that we have forbidden ourselves to say, even to ourselves. it is in this way that singing is like dreaming: woke up this morning with my mind / set on freedom woke up this morning with my mind / set on freedom woke up this morning with my mind / set on freedom hallelu, hallelu, hallelujah.12 dreaming may be the way that we set our minds on freedom. but we have known, at least since w. e. b. du bois’ the souls of black 9  oh freedom (traditional), in sing for freedom, supra note 8, at 74. 10  albert brumley, i’ll fly away, in african american heritage hymnal: 575 hymns, spirituals and gospel songs 601 (delores carpenter and nolan e. williams eds., 2001) [hereinafter, brumley]. the story goes that brumley, a white farmer and musician, completed this hymn, one of the most recorded of all time, while picking cotton on his father’s farm. encyclopedia of american gospel music 54-55 (w.k. mcneil ed., 2005). see also rev. gary davis, i’ll fly away, on have a little faith (remastered) (fantasy, inc.: 1999); kanye west, i’ll fly away, on the college dropout (roc-a-fella records: 1999). 11  see brumley, supra note 10. 12  woke up this morning with my mind on freedom (traditional), in sing for freedom, supra note 8, at 83. 2012 columbia journal of race and law 230 folk, that the slave, the eternal citizen of death’s dream kingdom, is of two minds.13 its questions, the things it questions, are, therefore, of necessity, thought and rethought, doubled. death, then, is an old question that now begs to be rethought: who would fardels bear, to grunt and sweat under a weary life, but that the dread of something after death the undiscover'd country, from whose bourn no traveller returns, puzzles the will, and makes us rather bear those ills we have than fly to others that we know not of?14 we already know the answer. we already know the “undiscover’d country from whose bourn no traveller returns” because it is the country of our captivity.15 slavery is death, death only, and that continually. the death event at the navel of our modernity is unimaginable. where there is nothing, there is nothing to be thought or rethought. if you live in the present made possible by slavery, and everyone does, then death appears as your father and your mother and your country and your lord and your salvation, and your law. you are not alive. we are not alive. we are a repetition, an echo, a reflection of the great darkness of slavery, the original accumulation: by the rivers of babylon, there we sat down, yea, we wept, when we remembered zion. we hanged our harps upon the willows in the midst thereof. for there they that carried us away captive required of us a song; and they that wasted us required of us mirth, saying, sing us one of the songs of zion. how shall we sing the lord’s song in a strange land?16 the life you think you are living is not real, it is a shadow of slavery, and slavery is itself only shadow: 13  w. e. b. du bois, the souls of black folk 3 (1989) (1903) (“it is a peculiar sensation, this double-consciousness . . . .”).   14  william shakespeare, hamlet, act 3, sc. 1. 15  id. 16  psalm 137:1-4 (king james) 231 when the stars begin to fall vol. 1:3 one glad morning when this life is over i’ll fly away17 the end is not yet; it is already. it has already ended. we are, it seems, living in the present that was made possible by slavery. but all is not what it seems. no one lives here now. we are all already gone. we are ghosts that have already given up. the already gone is the beginning of critical race theory. derrick bell’s and we are not saved, the beginning of critical race theory, is a postmodern jeremiad of the gone world: “the harvest is past. the summer is ended. and we are not saved.”18 critical race theory is the study of the already gone. if slavery is death, death only, and that continually, then white-over-black is that same death perfecting itself.19 we are the dead.20 rather than bury the dead, we dead perpetually repeat the fatal injury that brought us to this dark place.21 that makes us eaters of the dead.22 the parasite spirals deeper into the corpse and imagines itself to be flying free. law is the form of this repetition, the content of our replenishment, our strange communion. on the eve of the one hundredth anniversary of the emancipation proclamation, james baldwin wrote an open letter to his nephew to let him know that we who are black were never meant to survive.23 there are no accidents. we did not survive slavery. nothing survives slavery. baldwin understood, like the rev. dr. martin luther king jr., that the emancipation was being celebrated too early. critical race theory understands the dark side 17  brumley, supra note 10. 18  jeremiah 8:20 (king james), quoted in derrick a. bell, and we are not saved: the elusive quest for racial justice, at vii (1989). 19  anthony paul farley, perfecting slavery, 36 loy. u. chi. l.j. 221, 221-26 (2004). 20  anthony paul farley, the apogee of the commodity, 53 depaul l. rev. 1229, 1229 (2004). 21  anthony paul farley, accumulation, 11 mich. j. race & l. 51, 5455 (2005). 22  anthony paul farley, zombie jamboree, the third annual jerome m. culp memorial lecture at the twelfth annual latcrit conference, 4 fiu l. rev. 175 (2008); anthony paul farley, thirteen stories, 15 touro l. rev. 543, 594-625 (1999). 23  james baldwin, my dungeon shook: letter to my nephew on the eve of the 100th anniversary of the emancipation proclamation, in the fire next time (1993) (1963). 2012 columbia journal of race and law 232 of history. we are not too early, we are too late. whatever it was that might once have seemed a cause for celebration is already gone. critical race theory is a modernist project. marxist and freudian influences abound. critical race theorists, marx and freud in tow, read law with a purpose, not as “signifying nothing.”24 with marx, there are no accidents. with freud, there are no accidents. with critical race theorists, there are no accidents. there are no accidents. there are no accidents because slavery is fatal. slavery was fatal. there has already been an accident. there were no survivors. there are, therefore, no more accidents to be had. this thing of darkness cannot be illuminated.25 it is in that sense that there are no accidents. marx was known to his family, affectionately, as “the moor.”26 freud, too, was known to his family as “a little moor.”27 let us regard the blackness of marx and freud as no accident. let us go on and regard these two blackamoors as comrades and racemen: how i wish you could see the potential the potential of you and me it’s like a book elegantly bound, but in a language that you can’t read, just yet you gotta spend some time, love you gotta spend some time, with me 24  william shakespeare, macbeth, act 5, sc. 5. 25  william shakespeare, the tempest, act 5, sc. 1 (“these three have robb’d me, and this demi-devil—for he’s a bastard one—had plotted with them to take my life. two of these fellows you must know and own; this thing of darkness i acknowledge mine.”). 26  marx’s children referred to him not as father, but as the “moor.” erich fromm, marx’s concept of man 180 (2004) (1961). eleanor marx writing of her father, karl marx, calls him the “moor”: moor got the better of his illness again. never shall i forget the morning he felt himself strong enough to go into mother’s room. when they were together they were young again—she a young girl and he a loving youth, both on life’s threshold, not an old disease-ridden man and an old, dying woman parting from each other for life. id. at 67-68. 27  “it appears that i came into the world with such a tangle of black hair that my young mother declared i was a little moor.” sigmund freud, the interpretation of dreams (1900), in volume iv-v the standard edition of the complete psychological works of sigmund freud 352 n.1 (james strachey ed., 1971). 233 when the stars begin to fall vol. 1:3 and i know that you’ll find love i will possess your heart.28 critical race theory and traditional civil rights advocacy both might find themselves at home in the immediately above lyrics, but there is an important difference. the latter sing to win the hearts and minds of their owners. such singing gives another meaning to the word “possession.”29 the former, the race crits, sing with and to each other, and the song they sing is new. the dead have nothing to sing about. their song is over. but the singing is not over. we hear the singing. we cannot think of singing without thinking of singers and so we are brought to the joyful conclusion that there must be singers. we are the singers. the singing—the fact that our singing cannot be stopped—takes us to the emancipatory conclusion that the dead are not dead, only sleeping. the rev. dr. king used theological terms to discuss the power of the empty crypt: easter tells us that everything that we see is a shadow cast by that which we do not see. the visible is a shadow cast by the invisible. easter cries out to us that the idealists are right, that it is ultimately mind, personality, and spiritual forces that are eternal and not merely these material things that we look about and see. for, one day, the gigantic mountains will pass away. one day, even the stars that bedeck the heavens will move out of their course . . . . but there is something that will stand.30 the empty crypt is a power: there is faith, there is love, there is hope, there is something beyond the external that will stand through the ages . . . . the christian faith says this is the testimony of easter. that christ on the day that he walked with a group of men on the emmaus road was a little more real than he was the day before that . . . . so easter comes and says to us that the invisible forces are 28  death cab for cutie, i will possess your heart, narrow stairs (atlantic recording corporation: 2008). 29  anthony paul farley, critical race theory & marxism: temporal power, 1 colum. j. race & l. 247 (2012). 30  martin luther king, jr., questions that easter answers, sermon delivered at dexter avenue baptist church, 21 april 1957, in the papers of martin luther king jr: volume vi: advocate of the social gospel, september 1948—march 1963, at 283, 286 (clayborne carson ed., 2007). 2012 columbia journal of race and law 234 the forces that are ultimately real and the visible forces are merely shadows cast by the invisible.31 this can be explained in other ways: awareness is the place of the deathless; unawareness is the place of death. the aware do not die; the unaware are as though dead already.32 if “unawareness is the place of death” and “awareness is the place of the deathless,” then critical race theory, having awareness as its aim, is the awakening of the dead. there is no death darker than slavery. but if the dead are not dead, only sleeping, then their waking is cause for celebration. we ourselves are the sleepers whose eyes must open: and i can hear something saying, ‘king, you are stopping at good friday, but don’t you know that easter is coming. don’t worry about this thing! you are just in the midst of a transition now. you are just in the midst of good friday now. but i want you to know, king, that easter is coming! one day truth will rise up and reign supreme! one day justice will rise up. one day all the children of god will be able to stand up on the third day and then cry, ‘hallelujah, hallelujah’ because it’s the resurrection day. and when i hear that i don’t despair. i can cry out and sing with new meaning. this is the meaning of easter, it answers the profound question that we confront in montgomery. and if we can just stand with it, if we can just live with good friday, things will be all right. for i know that easter is coming and i can see it coming now.33 this symposium, critical race theory & marxism, is a celebration, a “hallelujah.” the authors all have written of the occulted history that shapes the visible present. they have written with the faith—call it easter34 or call it magic or call it the end of 31  id. 32  the dhammapada 2.1 (valerie j. roebuck trans., 2010). 33  king, supra note 30, at 289. 34  id. at 283. 235 when the stars begin to fall vol. 1:3 colonialism or call it the black radical tradition35 or call it anarchism or call it free communism or join the rev. dr. king in calling it something “far beyond communism.”36 the freedom dreams we have been dreaming can be made a waking reality for all: didn’t my lord deliver daniel then why not every man?37 there are no bright lines in the undiscovered country, this crypt we must leave, but this symposium has followed rev. dr. king’s line throughout. the participants in this symposium have traced different parts of the line. in alphabetical order, they are: anthony paul farley, critical race theory & marxism: temporal power; adam gearey, w. e. b. du bois’ ambiguous politics of liberation: race marxism and pan africanism; neil gotanda, beyond supreme court antidiscrimination: an essay on racial subordinations, racial pleasures and 35  cedric j. robinson, black marxism: the making of the black radical tradition (2000). 36  this was rev. dr. king’s way: [o]ne day we must ask the question, “why are there forty million poor people in america?” and when you begin to ask that question, you are raising a question about the economic system, about a broader distribution of wealth. when you ask that question, you begin to question the capitalistic economy. (yes) and i’m simply saying that more and more, we’ve got to begin to ask questions about the whole society. we are called upon to help the discouraged beggars in life’s marketplace. (yes) but one day we must come to see that an edifice which produces beggars needs restructuring. (all right) it means that questions must be raised. and you see, my friends, when you deal with this you begin to ask the question, “who owns the oil?” (yes) you begin to ask the question, “who owns the iron ore?’ (yes) you begin to ask the question, “why is it that people have to pay water bills in a world that’s two-thirds water?” (all right) these are words that must be said. (all right) now, don’t think you have me in a bind today. i’m not talking about communism. what i’m talking about is far beyond communism. martin luther king, address at the 11th annual southern christian leadership conference: where do we go from here? (aug. 16, 1967), in a call to conscience: the landmark speeches of dr. martin luther king, jr. 193-194 (clayborne carson and kris shepard eds., 2002). 37  didn’t my lord deliver daniel? (traditional). paul robeson, didn’t my lord deliver daniel? on on my journey: paul robeson’s independent recordings (smithsonian folkways: 2007); james weldon johnson and rosamond johnson, didn’t my lord deliver daniel?, in the books of the american negro spirituals 148 (1969) (1925). 2012 columbia journal of race and law 236 commodified race; gill gott, race, rights and reterritorialization; peter halewood, citizenship as accumulated racial capital; angela harris, compassion and critique; césar cuauhtémoc garcía hernández, the perverse logic of immigration detention: unraveling the rationality of imprisoning immigrants based on markers of race and class otherness; pantea javidan, global class and the commercial-sexual exploitation of children: toward a multidimensional understanding; ravi malhotra, the legal politics of hubert h. harrison: excavating a lost legacy; bekah mandell, putting theory into practice: using a human rights framework and grassroots organizing to build a national revolutionary movement; deborah waire post, contract and dispossession; reginald leamon robinson, “precious”: three tales of childhood maltreatment; spearit, why obama is black: language, law & structures of power; christian sundquist, signifying on passing: (post) post-racialism, (post) postmodernism, and (post) post-marxism; patricia tuitt, used up and misused: the nation state, the european union and the insistent presence of the colonial; and donna e. young, post race posthaste: towards an analytical convergence of critical race theory and marxism. maria grahn-farley’s critique of marxist analysis, presented as a critique of binary thinking, provided a much-needed frame for all of the essays of critical race theory & marxism, as well as all of the other panel presentations of post-racialism, post-marxism & other fables of the dispossession. neil gotanda and angela harris, two of this nation’s leading academics, have each made brilliant contributions.38 their contributions are brilliant in the sense that they light a path for a great deal of future research. critical race theory may have as its most important contribution the development of new methods of taking value into account. marxist theory may have as its most important contribution the critique of capitalist methods of accounting for value. gotanda and harris both have taken bold steps in the direction of something that this foreword will term communist accounting. communist accounting looks at value as it relates to the totality, not as it appears when the inquiry is limited to the particular interests of a particular class or enterprise. gotanda takes us beyond supreme court anti-discrimination: an essay on racial subordinations, racial pleasures and commodified race to show different ways in which contemporary critical race theorists have mapped how traditional representations of value have failed to account for 38  see generally neil gotanda, beyond supreme court anti-discrimination: an essay on racial subordinations, racial pleasures and commodified race, 1 colum. j. race & l. 273 (2012); angela p. harris, compassion and critique, 1 colum. j. race & l. 326 (2012). 237 when the stars begin to fall vol. 1:3 the totality.39 harris, recognizing, as gotanda does, that “ideology critique has an emotional dimension,” takes us toward a greater understanding of that value-dimension in compassion and critique.40 gotanda begins boldly: within legal studies there is tension between the supreme court’s ever narrowing range of racial issues acceptable for court review and efforts by legal scholars to examine racial subordinations that go beyond a narrow treatment of racial discrimination.”41 after a series of disappointments—mcdonnell-douglas v. green42; griggs v. duke power43; washington v. davis44; richmond v. croson45; adarand constructors, inc. v. pena46; grutter v. bollinger47; gratz v. bollinger48; and parents involved in community schools v. seattle school district49—gotanda realizes that: all government efforts to address questions of race directly now face almost certain rejection under strict scrutiny. the court simply does not recognize any social concerns as meeting the ‘compelling governmental interest’ requirement under strict scrutiny.”50 furthermore: since the court controls the cases that it chooses to review, its non-acceptance of questions of racial subordination beyond this very narrow doctrinal range have resulted in legal scholarship similarly narrow in scope. legal writers must either make strenuous efforts to push the boundaries of “disparate treatment” discrimination, racial “intent” or “compelling government interest” or simply abandon any pretense to 39  see generally gotanda, supra note 38. 40  harris, supra note 38, at 350. 41  gotanda, supra note 38, at 274. 42  411 u.s. 792 (1973). 43  401 u.s. 424 (1971). 44  426 u.s. 229 (1976). 45  488 u.s. 469 (1989). 46  515 u.s. 200 (1995). 47  539 u.s. 306 (2003). 48  539 u.s. 244 (2003). 49  551 u.s. 701 (2007). 50  gotanda, supra note 38, at 276. 2012 columbia journal of race and law 238 working within the supreme court’s doctrinal guidelines. this narrowing by the court has been a continuing source of frustration for those seeking racial justice in the legal arena.51 if it is the worst of times in practice, it the best of times for theory. we have nowhere to go, practically speaking, but this leaves us, again, with the need for thinking of the widest-ranging sort. facing what frederick douglass, karl marx, and w. e. b. du bois each would have called a crisis, we have to rethink everything about the world that seems to surround us, including ourselves and our roles. the political is personal. in harris’s words: ideology critique has an emotional dimension, in part because ideology itself is a strategy of emotion management. maintaining hierarchical relations requires that we manage our emotions in certain ways, that we not care. ideological critique seeks to spark caring and to build from it compassion, outrage, and the courage to make change.52 gotanda does three things along these same lines: section i reviews authors working in diverse doctrinal areas: title vii, common law contract, racial profiling and intellectual property. section ii develops anthony farley’s work on racial pleasure—the idea that racial subordination gives pleasure to the participants. section iii develops the idea that certain forms of racial subordination are commodified and may be theorized as commodified race within marx’ theory of capitalist commodity circulation.53 dialectical thinking, as can be seen in the relationship between gotanda’s work, harris’s work, and my own work, is the point of contact between critical race theory and marxism, which is also demonstrated by all the essays of this symposium: dialectic thinking is adequate to reality in that handling the concepts it is aware that the finite cannot fully render the infinite, nor the static the dynamic, and that every concept has to develop into new concepts, into its opposite. dialectical thinking . . . understands that 51  id. at 277. 52  harris, supra note 38, at 350. 53  gotanda, supra note 38, at 277. 239 when the stars begin to fall vol. 1:3 every concept has to develop into new concepts, even into its opposite. metaphysical, undialectical thinking, on the other hand, leads to dogmatic assertions and contradictions because it views conceptions formulated by thought as fixed, independent entities that make up the reality of the world.54 dialectical thinking allows us to see even life and death—long friday and easter—as containers for an ever-unruly reality.55 metaphysical thinking prevents us from understanding ways in which concepts like colorblindness and rule of law can be presented as the end of racism and yet serve as vehicles for racism’s return.56 but dialectical thinking, understanding that all things are in flux, opens the mind to the ever-unruly reality that critical race theory engages: “judicial freedom in capitalist development manifests itself as actual slavery.”57 my contribution to this volume, critical race theory & marxism: temporal power, begins like this: modern progress is “the thing with feathers.” cruelty to children is its line of flight. it “never stops—at all.” but it never gets anywhere, either. and if it is true that it never asks for anything, that is only because it has already taken everything, and more.58 and it ends with a theory of time that explains why our long friday seems to go on and on without end.59 54  anton pannekoek, lenin as philosopher: a critical examination of the philosophical basis of leninism 30 (translated by author, merlin: 2007) (1938). 55  consider martin luther king’s dialectics: and i can hear something saying, ‘king, you are stopping at good friday, but don’t you know that easter is coming. don’t worry about this thing! you are just in the midst of a transition now. you are just in the midst of good friday now. but i want you to know, king, that easter is coming! king, supra note 30, at 289. 56  neil gotanda, a critique of ‘our constitution is colorblind’ 44 stan. l. rev. 1 (1991). 57  pannekoek, supra note 54, at 30. 58  farley, temporal power, supra note 29, at 247 (citations omitted). 59  english language speakers usually refer to good friday. the swedish term, långfredagen (long friday) better captures the sense of duration here referenced. 2012 columbia journal of race and law 240 gill gott’s race, rights and reterritorialization contends with problems that are familiar to and important in marxist theory.60 what to do about rights? some, like patricia williams, imagine that rights discourse is useful. rights discourse is not useful. others, following derrick bell, imagine that rights discourse is inevitable. rights discourse is not inevitable. rights are the form through which we experience our social alienation. rights appear as instruments for a certain kind of progress, but they are in fact the vehicle of our return to our point of origin, to the original accumulation.61 peter halewood’s citizenship as accumulated racial capital contends with these problems as well.62 halewood sees postracialism as “wishful thinking” and cautions readers to remember that crises exacerbate contradiction.63 césar cuauhtémoc garcía hernández’ the perverse logic of immigration detention: unraveling the rationality of imprisoning immigrants based on markers of race and class otherness confronts the carceral society springing up everywhere, and most ferociously at the border.64 we have: . . . an immigration law scheme that, at its most fundamental, requires sorting desirable immigrants from undesirable immigrants, and that, in recent years, has accomplished this sorting through increased reliance on criminal records.65 60  gill gott’s race, rights and reterritorialization, 1 colum j. race & l. 302 (2012). 61  gott writes of dialectics: crt theorizes rights and politics from a “place in the world” of political subjecthood. marxism provides an impetus to think dialectically about rights in light of patterns and systems of accumulation. everyone who works critically on race and law can benefit by addressing these polarities. id. at 311 (citations omitted). 62  peter halewood, citizenship as accumulated racial capital, 1 colum j. race & l. 313 (2012); see also anthony paul farley, the colorline as capitalist accumulation, 56 buff. l. rev. 953 (2008); anthony paul farley, accumulation, 11 mich. j. race & l. 51 (2005). 63  see halewood, supra note 62, at 314. 64  césar cuauhtémoc garcía hernández, the perverse logic of immigration detention: unraveling the rationality of imprisoning immigrants based on markers of race and class otherness, 1 colum j. race & l. 353 (2012). 65  id. at 354. 241 when the stars begin to fall vol. 1:3 hernandez continues: placing these two features of contemporary immigration law within the context of two decades-old forms of indisputably racialized policing—mass incarceration of black and brown people for criminal law violations and the supreme court’s sanctioning of racial profiling in immigration law policing—the essay concludes that it was inevitable for penal imprisonment trends to taint immigration law enforcement with raced and classed mass incarceration.66 pantea javidan’s global class and the commercial-sexual exploitation of children: toward a multidimensional understanding67 and reginald leamon robinson’s “precious”: three tales of childhood maltreatment68 both address another important and too-often neglected border, the one between the adult and the child.69 these two classes, adult and child, engage each other in a way that leads to their mutual undoing. javidan observes: . . . [f]ocusing on childhood and age provides greater insight into inequalities. for example, one in seven of all people in the united states lived below the poverty line in 2009. this reveals information about class, specifically the relatively high proportion of poverty that exists in the wealthiest developed western nation. an examination of child poverty reveals that of all children in the united states, one in five (approximately twenty percent) lived below the poverty line in 2009 as compared to less than one in seven adults (approximately thirteen percent). “children represent twenty-five percent of the population, yet they comprise thirty-six percent of all people in poverty.” thus, children bear the greater brunt of poverty in the united states. african-american children bear the greatest burden of child poverty and poverty in general. one in 66  id. at 354. 67  pantea javidan, global class and the commercial-sexual exploitation of children: toward a multidimensional understanding, 1 colum j. race & l. 365 (2012). 68  reginald leamon robinson, “precious”: three tales of childhood maltreatment, 1 colum j. race & l. 434 (2012). 69  see maria grahn-farley, astrid and me, 17 law & lit. 269 (2005); maria grahn-farley, a theory of child rights, 57 u. miami l. rev. 867 (2003). 2012 columbia journal of race and law 242 three african-american children lived in poverty in 2009.70 robinson reminds us that the personal is political by asking us to look beyond structures which, in his words, position blacks as victims and “whites as singularly powerful reality co-creators” to explain why blacks or other historically oppressed people engage in self-annihilating and self-deceptive, and life devaluing, practices.71 lou andreas salome sharply observed: “. . . the fictions of healthy people, by anticipating the prospects of the future, bring them to life in the present; the future is inwardly present before it is disclosed externally.”72 but white-over-black is an illness, a fatal one. james baldwin, commenting on george jackson’s diagnosis of oppression sickness, showed a way to a cure in his open letter to the then-imprisoned angela davis: i am something like twenty years older than you, of that generation, therefore, of which george jackson ventures that “there are no healthy brothers—none at all.” i am in no way equipped to dispute this speculation (not, anyway, without descending into what, at the moment, would be irrelevant subtleties) for i know too well what he means. my own state of health is certainly precarious enough. in considering you, and huey, and george and (especially) jonathan jackson, i began to apprehend what you may have had in mind when you spoke of the uses to which we could put the experience of the slave.73 baldwin completes the portrait: what has happened, it seems to me, and to put it far too simply, is that a whole new generation of people have assessed and absorbed their history, and, in that tremendous action, have freed themselves of it and will never be victims again. this may seem an odd, indefensibly pertinent and insensitive thing to say to a sister in prison, battling for her life—for all our lives. 70  javidan, supra note 67, at 368. 71  robinson, supra note 68, at 451. 72  lou andreas salome, the freud journal of lou andreas salome 45 (stanley al leavy trans., 1964). 73  james baldwin, an open letter to my sister angela davis, in the cross of redemption: uncollected writings 254 (randall kenan ed., 2011). 243 when the stars begin to fall vol. 1:3 yet, i dare to say it, for i think you will perhaps not misunderstand me, and i do not say it, after all, from the position of spectator.74 robinson’s essay on health, then, addresses a most important issue. every oppressed group has to reach into what seems to be the void in order to win its freedom. ravi malhotra’s the legal politics of hubert h. harrison: excavating a lost legacy and adam gearey’s w. e. b. du bois’ ambiguous politics of liberation: race marxism and pan-africanism recover lost histories of struggle.75 harrison has been largely forgotten.76 du bois’s marxism has been forgotten.77 remembering, as malhotra and gearey show, is of the utmost importance. patricia tuitt’s used up and misused: the nation state, the european union and the insistent presence of the colonial78 and bekah 74  id. 75  ravi malhotra, the legal politics of hubert h. harrison: excavating a lost legacy, 1 colum j. race & l. 382 (2012); adam gearey, w. e. b. du bois’ ambiguous politics of liberation: race marxism and pan-africanism, 1 colum j. race & l. 265 (2012). 76  malhotra writes: largely lost to history, harrison’s astonishing body of work on racism and the political issues of his time force us to rethink a period of african american history that typically has been regarded as a low point in the struggle against racism and white supremacy. yet in fact, harrison found answers to the questions that would haunt advocates of racial equality for years to come. both the black socialist tradition and the black nationalist tradition owe an enormous debt to harrison which has not been properly understood to date. malhotra, supra note 75, at 383. 77  gearey writes: commentators have realised, to some extent, the ambiguities of du bois’ pan africanism. however, they have not shown how du bois’ deployment of the concept opens up a more radical political thinking. . . . pan africanism demands a social, economic and political revolution that goes beyond the civil liberties struggle and its focus on constitutional recognition. . . . [t]his essay will argue that du bois’ pan africanism evoked energies of revolution that point at an unfinished, rather than failed, radical project. gearey, supra note 75, at 265-66. 78  tuitt describes her project in these terms: 2012 columbia journal of race and law 244 mandell’s putting theory into practice: using a human rights framework and grassroots organizing to build a national revolutionary movement tell similar tales of memory-over-forgetting, as does deborah waire post’s contract and dispossession.79 post concludes: “if the liberatory potential of contract is to be salvaged or resurrected, legal scholars and judges may find it in the methodology of cultural critique and in the subversive behavior of their fellow humans.”80 mandell shows “how the ruling class uses race and immigration status to isolate, alienate, dehumanize, and divide poor and working-class people. those tactics work to keep working people (particularly whites) dreaming the impossible dream that someday their oppressors—the ruling class—will offer them sweet the relief and prosperity they so desperately desire.”81 spearit’s why obama is black: language, law & structures of power, donna e. young’s post race posthaste: towards an analytical convergence of critical race theory and marxism and christian the state of post-war europe need not be exaggerated: it was not a barren wasteland, populated by men in bearskins. rather, what was to be transcended in the discovery of europe was the unwanted shadow of the modern at the dawn of the postmodern. the imperial continuum exists in the mode of the proposed settlement of the new europe, which essentially is through migration of a particularly ruthless and frenzied momentum. it is that process of constituting—that place which the european union makes its own—that helps us make sense of the extraordinary prominence of free movement rights in the fashioning of the new europe and the almost tyrannical pressure placed upon eu citizens to travel around the ever-increasing spaces of the new europe. the appropriation of europe to the exigencies of the european union has occurred in the timehonoured fashion of encouraging the most courageous (most often too the economically advantaged) to test the new spaces to discover to what extent its seeming dissolution can yield hidden riches. the european union surely presents us with a basis on which to question the wisdom of schmitt’s claim that “discovery . . . is not a timeless, universal, and normative concept.” patricia tuitt, used up and misused: the nation state, the european union and the insistent presence of the colonial, 1 colum j. race & l. 490, 497-98 (2012). 79  tuitt, supra note 78; bekah mandell, putting theory into practice: using a human rights framework and grassroots organizing to build a national revolutionary movement, 1 colum j. race & l. 402 (2012); deborah waire post, contract and dispossession, 1 colum j. race & l. 418 (2012). 80  post, supra note 79, at 433. 81  mandell, supra note 79, at 403. 245 when the stars begin to fall vol. 1:3 sundquist’s signifying on passing: (post) post-racialism, (post) postmodernism, and (post) post-marxism all deal with the politics of identity, a familiar theme in critical race theory, in a way that takes marxism seriously.82 spearit observes how “race” and “color’ have been debunked by both biological and social science, yet the myths persist.83 young tells us that this persistence of race is useful to those who discriminate based on race.84 sundquist, like spearit, warns us that “[t]he call to a post-racial understanding of the nature of law and society is premature at best, and a disingenuous scheme to normalize racial subordination and class exploitation at worst.”85 the tradition is deep. i gathered the participants in this symposium with a letter i wrote last year: the idea is to use marx in ways that avoid the terrible signal-noise-ratio that always seems to ruin things when racists who-happen-to-be-marxists get involved in discussion and take it down the enervating road of class vs. race. the idea is to say goodbye to all that, and to do so in a way that leaves everyone free to tune in or tune out as schedule and passion allow. 82  spearit, why obama is black: language, law & structures of power, 1 colum j. race & l. 468 (2012); donna e. young, post race posthaste: towards an analytical convergence of critical race theory and marxism, 1 colum j. race & l. 499 (2012); christian sundquist, signifying on passing: (post) postracialism, (post) post-modernism, and (post) post-marxism, 1 colum j. race & l. 482 (2012). 83  see, e.g., spearit, supra note 82, at 479. 84  young writes: as marxism reminds us, looking at discrimination from the perspective of the worker reveals that the myriad forms of discrimination experienced in and beyond the workplace are part of a system of subordination that is: (i) supported by faith in free markets, and (ii) not amenable to the narrowly-drawn parameters of the american anti-discrimination framework. the framework, however, does fit nicely into a view of discrimination from the perspective of those put in the position of defending their conduct (the employer, the capitalist, etc.) because it treats discrimination as an uncommon, solitary, or purposeful act done by someone to someone else, not as a regular, systemic and necessary element of a capitalist system. young, supra note 82, at 499. 85  sundquist, supra note 82, at 484. 2012 columbia journal of race and law 246 what to do about the death of marxism? what to do about the death of racism? what is to be done? marxism, they say, is dead. but the classless society is nowhere in sight. racism is also dead, or so they tell us. but the colorline is still wrapped tightly around the world. the reports of these deaths are connected and premature. they are connected to the destruction of words. they are premature in the way declarations of final victory are always premature. if we credit louis althusser’s observation that “philosophy represents the people’s class struggle in theory,” then our engagement with these attempted dispossessions is a serious matter. this project will show the vitality of marxism by locating it within what critical race theory should become.86 my message led to a three-panel stream at the national people of color conference at seton hall school of law on september 9-11, 2010, under the heading, “post-racialism, postmarxism & other fables of the dispossession.” the stream, joined by the work of the editors of the columbia journal of race and law, produced this symposium, critical race theory & marxism, the first, it is hoped, of many. 86  anthony paul farley, e-mail to symposium contributors, jan. 25, 2010 (citing louis althusser, philosophy as a revolutionary weapon, 64 new left rev. 3 (1970) (on file with the author). editor s note sheila r. adams* on behalf the editorial board and staff, i am extremely proud to present the inaugural issue of the columbia journal of race and law. in an age where the u.s. supreme court increasingly urges legal and social commentators have referred to the period following president barack obama as an some may question the necessity or relevance of a new journal dedicated to the study of race and the law. however, such a view would be misguided, as demonstrated by other recent indicators. passage of the controversial measure, s.b. 1070, has spawned an outcry from the civil rights community and others that the bill effectively authorizes racial profiling of latinos in the state, while simultaneously other states have sought to enact similar legislation. moreover, the disproportionate impact of the current recession and foreclosure crisis on communities of color have brought to the fore the gross inequalities in wealth and homeownership between different racial groups and the social and legal factors, such as residential segregation and discriminatory lending practices, that have contributed to this phenomenon. in short, the relevance of race in our society and, thus, the law, continues to be very much a reality, and the increasingly multi-racial and multi-cultural nature of our communities both complicates and enriches this sphere of academic inquiry. to this end, the columbia journal of race and law embraces the continual importance of prioritizing this discourse as a means of better understanding contemporary issues and new ideas for social progress. the journal intends to publish scholarship that focuses broadly on issues concerning race and the law and to provide an intellectual space for academics, practitioners, and students from both within and outside of the legal field who are interested in examining these issues critically. the pieces contained in the following pages underscore the salience of race in the law today and explore both conceptual and practical implications of this intersection. professor kendall * j.d. candidate 2011, columbia law school. 2011 columbia journal of race and law ii foreword revisits the late professor charles black, jr. foundational essay on the 1950 s desegregation cases and suggests that the essay promoted a , while not completely dispelling the theory of constitutional scholarship. mr. novel strategy for enforcing local governments obligations in light of a recent court case, which has yielded potentially promising results in the area of residential integration. mr. both collaborations at regional levels of government and innovative homeownership structures in order to make tangible inroads in combating pervasive residential segregation. professor christian that have been presented by the u.s. in standing cases, with insight from a well-known field of social psychology. finally, judge joseph greenaway, jr. circle to the point, articulated in this note and illustrated by the articles, that declarations that american society has arrived at a post-racial oasis are premature indeed. this inaugural issue would not be possible without the assistance of many people, who contributed guidance, time, and other support to this immense undertaking. first and foremost, we are indebted to the 2009-2010 editorial board of our predecessor, the national black law journal (columbia edition) for their vision to institutionalize the critical study of race and law at columbia law school by founding the new journal. we also would like to express gratitude to nblj b for his generous support of the new journal. as a national law journal, nblj was hosted at columbia for over a decade and returned to its birthplace, the ucla school of law, at the end of the prior academic year. we would like to thank our colleagues at ucla for entrusting the publication to columbia and we wish the board of editors great tradition. the columbia journal of race and law owes a very special thanks to dean ellen chapnick, professor jane spinak, and tanya for their unwavering and generous support of the launch nation?: im also extremely thankful to professors christina burnett, susan sturm, and suzanne goldberg, whose direction and participation helped make the journal and we iii vol. 1:1 are indebted to professor kendall thomas for his guidance and for contributing his energy and passion for race law scholarship to this inaugural issue. lastly, i would be remiss not to acknowledge the exceedingly hard work of the inaugural editorial board, for whom i am most grateful for their thoughtfulness, dedication, and perseverance in embarking upon this entrepreneurial endeavor together. moreover, the board is extremely fortunate to have our staff, who have trusted our leadership during this journey and whose energy and commitment assure me that the journal will be in more than capable hands. we sincerely hope that you enjoy our inaugural issue. grant post-eic edit 2013 columbia journal of race and law 253 intersectional discrimination in u visa certification denials: an irremediable violation of equal protection? alexandra grant* through the u visa, the immigration and nationality act offers a means to obtain legal immigration status for undocumented victims of domestic violence and other specified crimes who cooperate with law enforcement in the investigation or prosecution of those crimes. in order to apply for such a visa, a crime victim must obtain law enforcement certification that he or she has been, is being, or will be helpful to the investigation or prosecution of the crime. this note argues that the act’s provision of discretion to local law enforcement officials in the decision of whether to grant u visa certification requests violates the equal protection clause of the fourteenth amendment, at least as applied to battered undocumented latina immigrants in suffolk county, new york. the note uses certification denials to critique the equal protection doctrine in the united states and to show how the inter-american human rights system’s conception of equal protection would better address the intersectional discrimination faced by undocumented victims of domestic violence. the note discusses the ways in which interrelated forms of discrimination lead to unconstitutional denials of u visa certification requests. it then predicts the outcome of a potential suit based on the equal protection violation inherent in a discriminatory certification denial before domestic courts and before the inter-american commission on human rights. it argues that such a suit would have a much greater chance of success in the latter system. finally, acknowledging the limited practical effect of a successful claim before the commission, the note proposes a domestic grassroots movement to more meaningfully address the intersectional discrimination that faces battered undocumented women. i. introduction…………………………………………………………… 254 ii. background: u visas, equal protection, immigration, and discretion…………………………………………………………. 255 a. u visas and certification…………………………………………….. 255 b. equal protection……………………………………………………… 257 c. equal protection and noncitizens…………………………………... 258 d. law enforcement discretion ……………………………………….. 260 iii. equal protection violations in u visa certification and beyond, and the unlikelihood of redress………… 261 * j.d. 2013, columbia law school. 254 intentional discrimination in u visa certification denials vol. 3:2 a. intersectional discrimination: race, gender, immigration, and domestic violence……………………………………………………. 261 b. intersectional discrimination in suffolk county…………………… 264 c. talia: a case study in intersectional discrimination……………… 266 d. what would happen if talia were to bring an equal protection claim?…………………………………………………………………. 266 iv. equal protection under inter-american human rights law………………………………………………………………… 269 a. the united states and the inter-american system…………………. 269 b. equal protection under the inter-american system……………….. 270 1. equal protection and domestic violence: maria da penha maia fernandes v . brazi l and gonzale s (lenahan) v . uni t ed sta te s………………………………………………….. 271 2. equal protection and undocumented migrants: juridical condition and rights of the undocumented migrants……. 272 c. what would happen if talia were to bring an equal protection claim under inter-american human rights law?………………… 273 v. extralegal strategies to promote the rights of battered undocumented women……………………………… 273 a. building support from within: community-based organization.. 274 b. reaching out: potential bases of support from outside the community……………………………………………………………. 276 vi. conclusion……………………………………………………………….. 278 i. introduction one in four women will experience domestic violence in her lifetime.1 in the united states, battered immigrant women are even more isolated than battered non-immigrant citizens;2 and though the law has recognized their unique vulnerability, it has ultimately failed to protect them effectively. this note argues that the immigration and nationality act’s provision of discretion to local law enforcement officials in decisions whether to grant or deny u visa certification requests violates equal protection under the fourteenth amendment, at least as applied to battered undocumented latina immigrants in suffolk county, new york. the note uses u visa certification denials to critique the equal protection 1 patricia tjaden & nancy thoennes, u.s. dep’t. of just., extent, nature, and consequences of intimate partner violence: findings from the national violence against women survey 27 (2000), available at https://www.ncjrs.gov/pdffiles1/nij/181867.pdf. 2 leslye e. orloff, deeana jain & catherine f. klein, with no place to turn: improving legal advocacy for battered immigrant women, 29 fam. l.q. 313, 314 (1995). 2013 columbia journal of race and law 255 doctrine in the united states, and to show how the inter-american regional human rights system’s conception of equal protection, which focuses on the impact of laws rather than on the intentions that motivate their adoption, would better address the intersectional discrimination that undocumented victims of domestic violence face in the united states today. part ii provides background information on the u visa, on the development of the equal protection doctrine in the united states, on judicial notions of official discretion, and on the tension between immigration law and equal protection. part iii discusses the different and interrelated forms of discrimination that undocumented battered latina immigrants face, both in general and in suffolk county, and which both manifest themselves in and lay the foundations for discriminatory u visa certification denials. it then presents a case study of talia, an undocumented battered latina u visa applicant in suffolk county, applies the equal protection jurisprudence discussed in part iii to her case, and argues that she would be unlikely to prevail in domestic courts. part iv explores the inter-american human rights system and its equal protection jurisprudence, and argues that talia would be more likely to prevail on an equal protection claim under this system. part v presents a more expansive solution to the problems faced by battered undocumented women, and advocates for the organization of a domestic grassroots human rights movement to provide a more long-term solution to the intersectional discrimination faced by battered undocumented women. ii. background: u visas, equal protection, immigration, and discretion the following section provides background information on the u visa, equal protection jurisprudence, official discretion, and immigration law’s interaction with equal protection. part a explains what the u visa is, and what certification entails. part b discusses seminal equal protection cases and the evolution of the doctrine’s stringent standards in the united states. part c addresses the supreme court’s approach to official discretion. part d presents examples of cases that illustrate the complex interaction between immigration status and equal protection. a. u visas and certification in 2000, the battered immigrant women protection act3 (biwpa) amended the immigration and nationality act (ina), adding, inter alia, section 101(a)(15)(u).4 this section created the u visa, a nonimmigrant visa for victims of “substantial physical or mental abuse” caused by any of a list of specified violent criminal acts,5 including rape, torture, trafficking, incest, domestic violence, sexual 3 battered immigrant women protection act of 2000 of the victims of trafficking and violence protection act of 2000, div. b, violence against women act of 2000, tit. v, pub.l. 106–386, 114 stat. 1464, (2000), amended by violence against women and department of justice reauthorization act of 2005, tit. viii, pub.l. 109–162, 119 stat. 2960 (2006), amended by violence against women and department of justice reauthorization act—technical corrections, pub.l. 109–271, 120 stat. 750 (2006). 4 ina § 101(a)(15)(u); 8 u.s.c. § 1101(a)(15)(u) (2012). 5 id. the four statutory eligibility requirements for the u visa are: (i) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii); (ii) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii); (iii) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a federal, state, or local law enforcement official, to a federal, state, or local prosecutor, to a federal or state judge, to the service, or to other federal, state, or local authorities investigating or prosecuting criminal activity described in clause (iii); and 256 intentional discrimination in u visa certification denials vol. 3:2 assault, prostitution, and several other crimes. to qualify for the visa, victims must assist or have assisted law enforcement in the investigation or prosecution of a qualifying crime. under section 214(p) of the ina, a petition for a u visa must include a “certification from a federal, state, or local law enforcement official, prosecutor, judge, or other federal, state, or local authority investigating criminal activity . . . [or] by an official of the service whose ability to provide such certification is not limited to information concerning immigration violations.”6 the certification must declare that the victim “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of a qualifying crime.7 section 214(p) also mandates the issuance of work authorization to eligible immigrants,8 and other biwpa amendments to the ina present both the possibility of a waiver of inadmissibility9 and certain measures to prevent findings of inadmissibility or deportation based on evidence provided by an applicant’s abuser.10 according to the regulations promulgated by the department of homeland security, in passing the legislation creating the u visa, “congress intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence” and other crimes and “to encourage law enforcement officials to better serve immigrant crime victims.”11 the regulations state that “[the term] ‘investigation or prosecution’ . . . refers to the detection or investigation of a qualifying crime or criminal activity . . . because the detection of criminal activity is within the scope of a law enforcement officer’s investigative duties.”12 the regulations further state that their administering agency, united states citizenship and immigration services (uscis), believes that “congress intended for individuals to be eligible for u nonimmigrant status at the very early stages of an investigation.13 however, “alien victims who, after initiating cooperation, refuse to provide continuing assistance when reasonably requested” are ineligible for the visa.14 the regulations acknowledge both that the lack of legal immigration status can inhibit crime victims from coming forward to help law enforcement and that there is a consequent lack of protection for these victims.15 it is clear, then, that the u visa was created not only to encourage participation with law enforcement, but also to extend a hand to some of the most vulnerable members of society. indeed, the emphasis placed on crimes like domestic violence, involuntary servitude, and sex trafficking16 signals the importance of this latter intent as a motivating force behind the legislation. however, despite this manifest intent to help these undocumented (and mostly female) victims, and despite the broadness of the requirements for participation with the investigation or prosecution of a qualifying crime, neither the (iv) the criminal activity described in clause (iii) violated the laws of the united states or occurred in the united states (including in indian country and military installations) or the territories and possessions of the united states. id. 6 ina § 214(p); 8 u.s.c. § 1184(p) (2012). 7 id. 8 id. 9 ina 212(d)(14); 8 u.s.c. § 1182(d)(14) (2012). 10 8 u.s.c. § 1367(a)(1)(e) (2012). 11 new classification for criminal activity; eligibility for “u” nonimmigrant status, 72 fed. reg. 53,014, 53,015 (sept. 17, 2007) (codified at 8 c.f.r. pt. 212). 12 id. at 53,020. 13 id. at 53,019. 14 id. 15 id. at 53,014. 16 id. at 53,015 (“the list of qualifying crimes represents the myriad types of behavior that can constitute domestic violence, sexual abuse, or trafficking, or are crimes of which vulnerable immigrants are often targeted as victims.”). 2013 columbia journal of race and law 257 statute itself nor the regulations provide for any kind of review of a certifying authority’s decision whether or not to grant certification. thus, the door is left wide open for discriminatory denials by local law enforcement, and the vulnerable victims the statute was meant to protect are left without recourse when these denials occur.17 b. equal protection the following section lays out a brief history of cases that highlight some important points about the development of the equal protection doctrine as well as our jurisprudential view of the degree of protection that the government owes both people in general and immigrants in particular. it is necessary to understand this foundation in order to appreciate the near-impossibility of prevailing with an equal protection claim against local law enforcement denial of u visa certifications. in washington v. davis, a case involving a claim that the application procedures of the washington, d.c. police department were racially discriminatory, the supreme court ruled that discriminatory intent is necessary to prove a violation of the equal protection clause of the fourteenth amendment.18 the court stated that evidence of disparate impact is sufficient to make out a prima facie case of discrimination, in which case the burden shifts to the government to rebut the presumption “by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.”19 however, if the government can meet this burden, the official action will not be found to violate of the equal protection clause “solely because it has a racially discriminatory impact.”20 in other words, disparate impact is relevant but insufficient on its own to prove an equal protection violation. in village of arlington heights v. metropolitan housing corp., the supreme court developed the holding of davis through its consideration of the constitutionality of a zoning ordinance that effectively barred certain socioeconomic and ethnic groups from residing in a white neighborhood.21 because the ordinance was not discriminatory on its face, the court applied the davis disparate impact test instead of strict scrutiny in making its determination, and reaffirmed the burden-shifting rule.22 acknowledging the difficulty of establishing an invidious intent with regard to an official action that is not facially discriminatory,23 the court proposed a multifactorial balancing test that would include factors such as the degree of impact of the action on a protected group, the history of decisions made under the action, the events leading up to the particular decision in the case, “departures from the usual procedural 17 as mentioned above, the statute confers certification authority on any “federal, state, or local law enforcement official, prosecutor, judge, or other federal, state, or local authority investigating criminal activity . . . [or] . . . an official of the service whose ability to provide such certification is not limited to information concerning immigration violations.” ina § 214(p); 8 u.s.c. § 1184(p)(1) (2012). therefore, victims may request certification from more than one official. as the case study on talia will illustrate, however, this choice of officials may not be of much help when all the law enforcement officials in a locality follow the same policy or criteria in making certification decisions. moreover, accessing the criminal justice system is particular difficult for undocumented victims, as discussed below. see also orloff, supra note 2. 18 washington v. davis, 426 u.s. 229, 239 (1976). 19 id. at 241 (quoting alexander v. louisiana, 405 u.s. 625, 632 (1972)). 20 id. at 239. 21 vill. of arlington heights v. metro. hous. corp., 429 u.s. 252 (1977). 22 id. at 265. 23 id. (“davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the ‘dominant’ or ‘primary’ one.”). 258 intentional discrimination in u visa certification denials vol. 3:2 sequence” of such an action, and the legislative or administrative history behind the action.24 toward the end of the opinion, however, the court stated in a footnote that a claim might not prevail even if the balancing test revealed that race had indeed been a motivating factor behind the official action. instead, the burden would then shift back to the governmental actor to show that the action would have been taken even without the racial motivation.25 in other words, the court indicated that a showing of systemic discriminatory intent is necessary in order for an equal protection claim to succeed. under arlington heights, then, it appears that as long as governmental actors can come up with any plausible, legitimate reason for a discriminatory action, and a plaintiff cannot prove that an invidious intent pervaded their decision-making, it does not matter whether they in fact wanted to negatively impact a protected group.26 in personnel administrator of massachusetts v. feeney, the court further clarified the meaning of the official “intent” required to prove an equal protection violation.27 in reviewing the constitutionality of a civil service preference for veterans that negatively impacted female employees, the court stated that even though the massachusetts legislature could have foreseen that the preference would, as a practical matter, exclude women from higher-ranking positions in the civil service, a foreseeable disparate impact would not suffice to prove discriminatory intent. under feeney, the required intent must be more than “awareness of consequences” or even “volition;” rather, it must be an actual reason for the official action.28 these cases set a very high standard for a plaintiff to meet in order to prevail in an equal protection claim against the government. it is not enough to prove that official action or inaction has had an adverse and disparate impact on the protected class of which the plaintiff is a member. it is not enough to prove that the governmental actor was aware that this consequence might occur. it is not even enough to prove that animus existed and that the governmental actor wished for the negative result. indeed, a plaintiff essentially must demonstrate that the action would not have been taken had it not been for the hostile motivation. the difficulty of making such a showing and its consequences for potential claimants who have been denied u visa certifications will be explored further below. c. equal protection and noncitizens equal protection under state law has a strange relationship to immigration status, both because of the nearly exclusive federal power over immigration and, in the context of undocumented immigrants, because of the complex questions involved in legally protecting those who have no legal status. the next few cases present some of the contradictions inherent in the equal protection doctrine as it applies to immigrants. 24 id. at 267–68. 25 id. at 270 n.21 (“proof that the decision by the village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. such proof would, however, have shifted to the village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered. if this were established, the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose. in such circumstances, there would be no justification for judicial interference with the challenged decision.”). 26 this reading of the case law may sound blasé in light of the development of tiers of scrutiny with respect to protected classes, but it is certainly not in the context of undocumented immigrants, who, as will be explored below, have in recent years faced inordinate hostility from both private and governmental actors. 27 pers. adm’r of mass. v. feeney, 442 u.s. 256 (1979). 28 id. at 279 (“‘discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. . . . it implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”). 2013 columbia journal of race and law 259 in graham v. richardson, the supreme court held that state laws denying welfare benefits to legal permanent residents or to aliens who had not resided for a certain number of years in the united states violated equal protection.29 the court applied strict scrutiny in reaching its decision, explaining that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.”30 it also asserted that state laws restricting aliens’ eligibility for welfare benefits intruded on the federal government’s constitutional power over immigration,31 and stated firmly that federal policy mandated the equal legal treatment of aliens by all states in the protection of their persons and property.32 in its application of strict scrutiny and in its reference to federal policy, the court in graham seemed to both acknowledge the vulnerability of noncitizens and take a protective stance toward their rights. in mathews v. diaz, however, the court cited graham as support for its holding that a federal law that denied noncitizens access to welfare benefits did not violate equal protection because only “the political branches of the federal government, rather than . . . the states or the federal judiciary” could “regulate the conditions of entry and residence of aliens.”33 while the court in graham had emphasized that the equal protection clause refers to “persons” and not to citizens,34 here it stressed that “[t]he exclusion of aliens and the reservation of the power to deport have no permissible counterpart in the federal government’s power to regulate the conduct of its own citizenry.”35 while the two decisions are consistent, the contrast between the tones of the opinions is striking, and reveals the profound inadequacy of the law’s supposedly equal protection of noncitizens. a doctrine of equal protection whose application is limited to the branches of government that have virtually no power over the regulation of the rights of such persons is a hollow doctrine indeed. if equal protection has any substantive meaning, it is difficult to understand how the same treatment can go unquestioned if meted out by the federal government and yet deemed unacceptable if meted out by states. in plyler v. doe, the court held that a state could not prohibit the children of undocumented immigrants from attending its public schools.36 in rejecting texas’s argument that equal protection applied only to persons “within its jurisdiction,” the court stressed again that noncitizens, regardless of their immigration status, are “persons” for purposes of the equal protection clauses of both the fourteenth and the fifth amendments.37 the court employed expansive language indicating that noncitizens were entitled to equal protection simply by virtue of their presence within a state, regardless of their manner of entry or their immigration status.38 instead of applying strict scrutiny based on the 29 graham v. richardson, 403 u.s. 365, 376 (1971). 30 id. at 372 (quoting united states v. carolene prod. co., 304 u.s. 144, 155–56, n. 4 (1938)). 31 id. at 378. 32 id. (“congress has broadly declared as federal policy that lawfully admitted resident aliens who become public charges for causes arising after their entry are not subject to deportation, and that as long as they are here they are entitled to the full and equal benefit of all state laws for the security of persons and property.”). 33 mathews v. diaz, 426 u.s. 67, 84 (1976). 34 graham, 403 u.s. at 371 (“it has long been settled . . . that the term ‘person’ in [the context of the fourteenth amendment] encompasses lawfully admitted resident aliens as well as citizens of the united states and entitles both citizens and aliens to the equal protection of the laws of the state in which they reside.”). 35 mathews, 426 u.s. at 80. 36 plyler v. doe, 457 u.s. 202 (1982). 37 id. at 213 (“to permit a state to employ the phrase ‘within its jurisdiction’ in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the equal protection clause was incorporated in the fourteenth amendment. the equal protection clause was intended to work nothing less than the abolition of all caste and invidious class based legislation.”). 38 id. at 215 (stating that “the protection of the fourteenth amendment extends to anyone, citizen or stranger, who is subject to the laws of a state, and reaches into every corner of a state’s territory. that a person’s initial entry into 260 intentional discrimination in u visa certification denials vol. 3:2 alienage of the children affected by the statute at issue, the court applied rational basis review, finding that the children of undocumented immigrants were not a suspect class because undocumented status is not an immutable characteristic39 (and that education was not a fundamental right40). nevertheless, the court determined that the statute furthered no “substantial state interest.”41 in making this determination, the court emphasized that the statute burdened a subclass of undocumented immigrants who were present in the united states without fault,42 and thus implicitly indicated that it might be permissible to penalize adult undocumented immigrants who had voluntarily entered the country unlawfully. thus, while emphasizing the applicability of equal protection to undocumented immigrants, the decision indicates that this protection is somehow less than that due to legal inhabitants of the united states. d. law enforcement discretion the difficulty of proving discrimination in the context of u visa certification denials is compounded by the absolute and unreviewable discretion granted to certifying agencies, since this discretion allows them to deny certification even to victims who meet the broad standards required to qualify for it. it is exceedingly difficult to prove systemic discriminatory intent, even under a disparate impact theory, when there is a policy of discretion at play that involves multiple, unrelated decisionmakers.43 moreover, the supreme court appears to be particularly deferential to discretionary law enforcement decisions. for example, in the domestic violence context, the court asserted in town of castle rock, colorado v. gonzales that even mandatory legislative provisions clearly requiring enforcement of a restraining order against the abusive husband of a domestic violence victim were not, in fact, mandatory.44 it noted the “well established tradition . . . [and] deep-rooted nature of law-enforcement discretion, even in the presence of seemingly mandatory legislative commands.”45 in holding that the plaintiff did not have a property right in the enforcement of the restraining order, the court ignored the fact that the legislation was enacted specifically to address problems of police discretion in the context of domestic violence.46 the standards affirmed by these cases indicate the difficulty of overcoming the a state or into the united states, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the state’s territorial perimeter. . . . and until he leaves the jurisdiction . . . he is entitled to the equal protection of the laws that a state may choose to establish.”). 39 id. at 220. 40 id. at 221. 41 id. at 230. 42 plyler, 457 u.s. at 220 (“of course, undocumented status is not irrelevant to any proper legislative goal. . . . but [the statute] is directed at children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control. it is thus difficult to conceive of a rational justification for penalizing these children for their presence in the united states.”). 43 the extent of this difficulty is illustrated by the near-impossibility of proving systemic discriminatory intent even in the employment context under title vii’s more lenient disparate impact standard, which focuses on the effects of, rather than the intent underlying, discrimination. see, e.g., griggs v. duke power co., 401 u.s. 424, 431 (1971) (“what is required by congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification . . . the act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”) (emphasis added). for example, in 2011, the supreme court stated in wal-mart stores, inc. v. dukes that a policy of allowing local supervisors to exercise discretion in employment decisions did not establish “a common mode of exercising discretion that pervades the entire company.” wal-mart stores, inc. v. dukes, 131 s.ct. 2541, 2554–55 (2011). 44 town of castle rock, colorado v. gonzales, 545 u.s. 748 (2005). 45 id. at 760–61. 46 id. at 779 (“[t]he court gives short shrift to the unique case of ‘mandatory arrest’ statutes in the domestic violence context. . . . second, the court’s formalistic analysis fails to take seriously the fact that the colorado statute at issue in this case was enacted for the benefit of a narrow class of persons who are beneficiaries of domestic restraining 2013 columbia journal of race and law 261 presumption in favor of law enforcement discretion. this difficulty would be problematic in an equal protection claim based on discrimination leading to a u visa certification denial because it would be difficult to overcome the presumption with regard both to law enforcement responses to domestic violence and to the certification denials themselves. iii. equal protection violations in u visa certification and beyond, and the unlikelihood of redress the following section explores the interconnected forms of discrimination that battered latina immigrants face in their interactions with law enforcement that lead to denials of their u visa certification requests. part a introduces the concept of intersectionality and discusses the levels of discrimination against undocumented latina immigrant victims of domestic violence. part b discusses the presence and manifestations of this discrimination in suffolk county, and part c presents a case study of talia, a battered latina immigrant who was denied u visa certification in suffolk county. part d then applies the equal protection jurisprudence discussed in part ii, supra, to the case study, thereby illustrating the inadequacy of the doctrine to remedy the myriad forms of intersectional discrimination that lead to u visa certification denials. a. intersectional discrimination: race, gender, immigration, and domestic violence in her work on intersectionality, kimberlé crenshaw has pointed out that identity politics tends to disregard the differences between people within broader groups47 and that prevailing notions of discrimination conceive of single, isolated axes of subordination.48 crenshaw advances intersectionality as a challenge to the notion that race and gender are separate classifications that exist independently of one another, and encourages the expansion of this concept to address further interconnecting group categorizations.49 intersectionality is useful to address discrimination against latina immigrant victims of domestic violence because these women face subordination and isolation on multiple levels. an undocumented battered latina immigrant in suffolk county faces four interrelated but distinct forms of discrimination, based on her race, her gender, her citizenship status, and her status as a victim of domestic violence. these four forms of discrimination manifest themselves not only in her daily interactions with society,50 but every time she interacts with law enforcement. while they come orders, and that the order at issue in this case was specifically intended to provide protection to respondent and her children”) (stevens, j., dissenting). 47 kimberlé crenshaw, mapping the margins: intersectionality, identity politics, and violence against women of color, 43 stan l. rev. 1241, 1242 (1991). 48 kimberlé crenshaw, demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics, 1989 u. chi. legal f. 139, 140 (1989). 49 crenshaw, supra note 47, at 1244 n.9 (elaborating on the concept of intersectionality, crenshaw explains: “in mapping the intersections of race and gender, the concept does engage dominant assumptions that race and gender are essentially separate categories. by tracing the categories to their intersections, i hope to adopt a methodology that will ultimately disrupt the tendencies to see race and gender as exclusive or separable. while the primary intersections that i explore here are between race and gender, the concept can and should be expanded by factoring in issues such as class, sexual orientation, age, and color.”). 50 in discussing her research on battered women’s shelters in los angeles, crenshaw notes some of the other forms of oppression that accompany being a battered woman of color: the physical assault that leads women to these shelters is merely the most immediate manifestation of the subordination they experience. many women who seek protection are unemployed or underemployed, and a good number of them are poor. shelters serving these women cannot afford to address only the violence inflicted by the batterer; they must also confront the other multilayered and routinized forms of domination that converge in these women’s lives, hindering their ability to create 262 intentional discrimination in u visa certification denials vol. 3:2 together with striking clarity and devastating consequences when she is unjustly denied a u visa certification, they play themselves out in countless equal protection violations along the way. these abuses occur sometimes blatantly, through active manifestations of discrimination like racial profiling and sexual harassment; sometimes more subtly, through passive manifestations like the lack of police response or the denial of language access services; most profoundly, through the law’s resistance to treating domestic violence as a crime in the first instance. racial profiling has been well documented, both in and out of new york state. however, interactions with police are usually analyzed one-dimensionally, in terms, for example, of police brutality against non-white males or gendered police brutality against white women.51 though police violence against women of color involves many of the same racist motivations that inspire the use of force against men of color, this form of brutality is necessarily gendered.52 for example, immigrant latinas are raped regularly by both law enforcement and customs and border patrol agents along the mexican-us border.53 in 2001, there was a spate of traffic stops of latinas in one community in suffolk county during which police officers forced these women to engage in sexual activity.54 racially related sexual harassment by law enforcement often occurs in the context of domestic violence, as well.55 as a result, battered women of color are doubly vulnerable, both to their abusers and to the officers who are supposed to help them. even in the absence of sexual harassment, however, minority and immigrant women face barriers to seeking help from the police in the context of domestic violence. society tends to fail to recognize the hurdles most battered women face, regardless of race. too often, american popular consciousness blames domestic violence victims for having caused or tolerated the abuse, without realizing that many seemingly sensible strategies do not actually work to protect them.56 indeed, this ignorance is manifest in our justice system’s failure to prosecute cases of domestic violence.57 many fail to consider the context in which these victims live, and the potential consequences of their efforts to “fight back” in the ways the general public considers reasonable.58 and many fail to alternatives to the abusive relationships that brought them to shelters in the first place. many women of color, for example, are burdened by poverty, child care responsibilities, and the lack of job skills. these burdens, largely the consequence of gender and class oppression, are then compounded by the racially discriminatory employment and housing practices women of color often face, as well as by the disproportionately high unemployment among people of color that makes battered women of color less able to depend on the support of friends and relatives for temporary shelter. id. at 1245–46. while a full exploration of the scope of discrimination faced by battered undocumented latina immigrants is outside the scope of this note, it is useful to keep in mind the everyday backdrop of subordination that these women face, as police discrimination does not exist in a vacuum. 51 andrea j. ritchie, law enforcement violence against women of color, in color of violence, the incite! anthology, 138–56, 156 (incite! women of color against violence ed., 2006). 52 id. at 148. 53 id. at 149. 54 id. at 146 (“in one case, instead of being issued a traffic citation, a woman was forced to walk home in her underwear. in two others, officers were alleged to have forced women to have sex with them after pulling them over for traffic infractions.”). 55 id. at 150. 56 mary ann dutton, empowering and healing the battered woman: a model for assessment and intervention 7 (1992). 57 see, e.g., “anne tully,” working inside the system, on the issues, 44, 44–45 (winter 1997) (explaining that “the mocking and victim-blaming continue behind closed doors, and rape and domestic violence cases are quietly dismissed, reduced, or plea-bargained down to insignificant charges. . . . domestic violence . . . is outrageously underprosecuted.”). the author’s name is an alias. 58 id. 2013 columbia journal of race and law 263 recognize that, sometimes, one of the least effective strategies at stopping battering is calling the police,59 and that police often fail to take action to protect victims.60 as a society, we also fail to acknowledge that these difficulties are even more acute for women of color, like latina immigrants. indeed, the invisibility of women of color in the domestic violence movement has helped to exclude them both from mainstream narratives of battering and from the right to law enforcement protection that the movement advocates.61 the lack of appropriate police response to protect these women has been noted on numerous occasions.62 for example, even though new york state’s family protection and domestic violence intervention act includes provisions requiring mandatory arrest in response to domestic disputes,63 police officers have failed to fully comply with these provisions, especially when faced with low-income, non-white callers.64 a fairly recent study on mandatory arrest in new york city found that cases in which no arrest occurred were more likely to involve latina victims partnered with latino abusers.65 these cases were also more likely to involve stalking and prior domestic incident reports.66 thus, though police were twice as likely to make an arrest when there was a history of previous calls about domestic disturbances,67 they were least likely to make an arrest when the incidents involved latinos, even though many of these cases were extremely serious.68 it seems, then, that when a latina woman is being battered by her abuser, especially in a place like suffolk county, the choice of whether to call the police may seem especially unattractive: the responding officer may abuse her himself, or he may just leave her there alone with a violent and perhaps now even angrier man. if this woman is an immigrant, she is even more vulnerable, as law enforcement agencies like the suffolk county police department may well be more concerned with her immigration status than with the harm that has been done to her.69 simply determining what efforts the battered woman has made to escape, avoid, or protect herself and her children is not adequate. it is also necessary to determine the effectiveness of those strategies for increasing the battered woman’s safety. . . . in addition . . . it is important to look at other consequences that may result from her efforts. for example, a battered woman’s choice to call the police may result in a neighbor’s social ostracism, perhaps preventing their children from playing with hers. staying home from work in order to hide injuries received in a battering may be a woman’s effort to protect herself by keeping the abuse a secret; it may cost her her job. finally, a battered woman’s decision to remain quiet about the abuse in order not to risk embarrassing or further enraging her batterer may well result in increased social isolation in that she may be even less protected as few people may know of her situation. id. 59 id. at 43. 60 id. at 50 (“for example, was an arrest made, or after arrest, was the batterer released on bond within a few hours, only to return and continue the violent assault? . . . many women report being afraid to begin a process, which, if aborted in the middle, may result in increased danger.”). 61 ritchie, supra note 51, at 151. 62 see, e.g., victoria frye et al., dual arrest and other unintended consequences of mandatory arrest in new york city: a brief report, 22 j. of family violence 397, 398 (2007); ritchie, supra note 51, at 150; evan stark, mandatory arrest of batterers: a reply to its critics, in do arrests and restraining orders work?, 115–49, 144 (eve s. buzawa & carl g. buzawa eds., 1996). 63 see n.y. crim. proc. law. section 140.10 (4)(c) (mckinney supp. 2001); see also frye et al., supra note 62, at 399 n.1. 64 frye et al., supra note 62, at 402. 65 id. at 401. 66 id. at 402. 67 id. at 398. 68 id. at 401. 69 ritchie et al., supra note 51, at 151. 264 intentional discrimination in u visa certification denials vol. 3:2 indeed, undocumented battered immigrant women face even bigger hurdles than their counterparts who have legal status. on top of the fears that they share with other battered women, with battered women of color, and with battered immigrant women of color, many are afraid to communicate with law enforcement about the abuse to which they are subjected for fear of deportation, and most are also isolated within their private lives.70 many studies indicate that domestic violence is particularly prevalent in immigrant communities. for example, a new york city department of health study found that immigrant women were murdered by intimate partners at greater rates than any other group of women;71 another study cited in a department of justice report found that sixty percent of immigrant korean women had been battered by their husbands.72 immigrant women who encounter cultural and linguistic barriers in the united states are largely stereotyped by society, overlooked by the broader antidomestic violence movement, and more likely than other women to be trapped by their abusers.73 moreover, few undocumented victims of even severe domestic violence are willing to contact the police,74 and they report abuse at much lower rates than other victims.75 in short, these women are marginalized on multiple levels because of the fear of deportation and consequent isolation that accompany being an undocumented immigrant in the united states and because of the fear and isolation that accompany violence at home.76 b. intersectional discrimination in suffolk county in suffolk county, another form of discrimination by law enforcement occurs on a much more subtle, mundane, and pervasive level. while the suffolk county police department has language access policies that offer basic spanish-language instruction for employees and translation services for civilians, these policies are often not enforced, resulting in a denial of services to residents of limited english proficiency.77 often, officers are unaware of the policies, or no interpreters are available.78 some immigrant victims have reported going to the precinct and being told to come back later because there 70 crenshaw, supra note 47, at 1248–49. [c]ultural barriers often . . . discourage immigrant women from reporting or escaping battering situations. . . . the typical immigrant spouse . . . may live ‘[i]n an extended family where several generations live together, there may be no privacy on the telephone, no opportunity to leave the house and no understanding of public phones.’ as a consequence, many immigrant women are wholly dependent on their husbands as their link to the world outside their homes. . . . many women who are now permanent residents continue to suffer abuse under threats of deportation by their husbands. . . . and . . . there are countless women married to undocumented workers (or who are themselves undocumented) who suffer in silence for fear that the security of their entire families will be jeopardized should they seek help or otherwise call attention to themselves. id. (citations omitted). 71 n.y.c. dep’t health & mental hygiene, femicide in new york city: 1995–2002 (2004), available at http://www.nyc.gov/html/doh/downloads/pdf/ip/femicide1995-2002_report.pdf. 72 patricia tjaden & nancy thoennes, supra note 1. 73 leslye e. orloff et al., battered immigrant women’s willingness to call for help and police response, 13 ucla women’s l.j. 43, 45 (2003). 74 id. at 43. 75 id. at 64. 76 jamie rene abrams, legal protections for an invisible population: an eligibility and impact analysis of u visa protections for immigrant victims of domestic violence, 4 mod. am. 26, 26 (2008). 77 ted hesson, suffolk police failing residents, long island wins (oct. 4, 2011), http://www.longislandwins.com/index.php/about_us/news_detail/suffolk_police_failing_residents/. 78 james brierton, immigrants’ rights groups: suffolk police “still not making” the language connection, smithtown radio (sept. 21, 2011). 2013 columbia journal of race and law 265 was no one there to translate; other immigrant residents have recounted being laughed at by a commanding officer when they requested translation services.79 the animus against latino immigrants in suffolk county, not only on the part of residents but also on the part of law enforcement and government officials, is often blatant and has been well documented. in the aftermath of the 2008 murder of marcelo lucero, an ecuadorian immigrant who was stabbed to death in patchogue by teenage white supremacists who liked to target latinos (an activity they liked to call “beaner-hopping”), the southern poverty law center (splc) wrote a report describing the violence that latino immigrants face in suffolk county and local law enforcement’s complicity in the aggression.80 they noted that suffolk law enforcement minimized the lucero incident, ignoring the nativist hostility that had been festering for years in the county.81 the report cites many incidents in which those in power have expressed their animosity toward latino immigrants. one county legislator averred that undocumented residents in suffolk had “better beware”; another threatened that if he witnessed latino day laborers entering his community, “we’ll be out with baseball bats”; and a third declared, “i would load my gun and start shooting.” 82 steve levy, then-county executive—the highest position in the local government—called the members of one immigrant advocacy organization who had criticized him “communists” and “anarchists.”83 hostility is also manifest in the behavior of law enforcement on the ground. immigrants told the splc that local police were either indifferent to their reports or actively participated in the harassment perpetrated against them.84 they recounted regular incidents of racial profiling in traffic stops, unlawful searches and seizures, and more concern with their immigration status than with their reports of victimization.85 incidentally, the report also offers some chilling statistics that suggest that what is happening in suffolk county mirrors what is going on around the country:86 a forty percent rise in anti-latino hate crimes between 2003 and 2007, and more than a fifty percent rise in hate groups since 2000, due to the current climate of animosity against non-white undocumented immigrants.87 faced with numbers like this and the wave of anti-immigrant laws sweeping through numerous states in recent years,88 it would be difficult to argue that suffolk is an anomaly. however, for the purposes of this note and of an equal protection claim, suffolk county is a good example of a location where there are multiple indicia of discrimination by governmental actors. 79 id. 80 southern poverty law center, climate of fear: latino immigrants in suffolk county, n.y. (2009). 81 id. 82 id. at 8, 25 83 id. at 5 84 id. 85 id. 86 southern poverty law center, supra note 80. 87 id. 88 in 2010 and 2011, only seven states did not pass any anti-immigrant bills. ian gordon & tasneem raja, 164 anti-immigration laws passed since 2010? a mojo analysis, mother jones, (march 2012), http://www.motherjones.com/politics/2012/03/anti-immigration-law-database. for the most successful of these laws, see arizona’s s.b. 1070 and its progeny, alabama’s h.b. 76, georgia’s h.b. 87, indiana’s s.b. 590, south carolina’s act 69, and utah’s h.b. 497. all six of these laws have been challenged, with varying degrees of success. for more information see, e.g., state anti-immigrant laws, aclu, http://www.aclu.org/immigrants-rights/state-anti-immigrantlaws (last visited apr. 17, 2013). 266 intentional discrimination in u visa certification denials vol. 3:2 c. talia: a case study in intersectional discrimination talia89 had about a decade’s worth of orders of protection against her abusive husband. her file included a pile of police reports about an inch thick; there were others, she said, but she had once set them on fire in anger. many of these reports included long statements detailing what her abuser had done to her and to her children. she had photos of her injuries, too. she also had records of consistently, dutifully filed taxes, and multiple affidavits from friends and employers attesting to how amazing a woman she was and how much she had suffered. in short, talia seemed to be exactly the kind of person who would appeal to law enforcement, and who one would want the u visa to help. neither the suffolk county police department nor the suffolk county district attorney’s office thought so, though. they refused to grant talia’s certification request ostensibly because she had not obtained a criminal order of protection; all her orders had been from family court.90 while on the surface, this approach to certification requests might appear to make sense—talia technically did not cooperate with law enforcement in the investigation of a crime—such a policy runs counter to congress’s intent in creating the u visa. moreover, it fails to account for the reasons why talia never obtained a criminal order of protection or got involved in any criminal proceeding against her abuser, and it reflects the injustice of the law’s failure to treat domestic violence as a crime like any other assault. indeed, while many of talia’s police reports contained lengthy descriptions of her abuser’s attacks, some did not record what she tried to communicate, and none of them categorized these attacks as crimes. moreover, talia indicated that a sexist family court judge who presided over many of the proceedings against her husband was biased against her, and apparently did not take the abuse seriously. this failure to recognize the gravity of the violence manifested itself in the judge’s continued granting of visitation rights to talia’s husband, even though he had both harmed talia in their children’s presence and harmed the children themselves.91 finally, talia was unwilling to seek help from the criminal justice system because she was afraid that an unsuccessful prosecution would lead her abuser to retaliate and possibly kill her. talia felt that she had been discriminated against many times, as a latina, as a woman, as an immigrant, and as a victim of domestic violence, both in her interactions with the police and in her encounters with the family court judge. her case illustrates the layers and manifestations of discrimination that undocumented battered latina immigrants face in their quest for protection. the discrimination she faced for so many years, culminating in the denial of her certification request, is exactly the kind of subordination that the principle of equal protection prohibits under international human rights law. the evolution of the equal protection doctrine in united states jurisprudence, however, has made it virtually impossible for plaintiffs to challenge this discrimination successfully. the following section discusses talia’s case in light of this jurisprudence. d. what would happen if talia were to bring an equal protection claim? 89 the name has been changed. the facts of this case are shared here with permission. 90 the reasons for the refusal to grant certification were related over the phone to talia’s attorney, who called both the department and the district attorney’s office to inquire about the reasons for the refusal. 91 talia is not alone in this experience. battered women in new york courts often have to meet a higher standard of credibility than their abusers, and some judges have been found to grant abusers access to their children without adequate consideration of the safety of the children or their mothers. n.y. state judicial comm. on women in the courts, women in the courts: a work in progress 10, 12 (2002), available at http://www.courts.state.ny.us/ip/womeninthecourts/womeninthecourts_report.pdf. 2013 columbia journal of race and law 267 battered latina immigrants like talia are adversely affected by their status as women, as domestic violence victims, as latinas, and as undocumented immigrants; it is difficult to imagine a context in which all these levels of discrimination that they face are more clearly brought together than in the context of u visa certification denials. still, despite the wealth of evidence of anti-immigrant sentiment among suffolk county law enforcement, and of law enforcement discrimination against domestic violence victims and against women of color generally, it would be nearly impossible to prove a violation of equal protection in the refusal to grant one of these women certification. the improbability of prevailing on such a claim illustrates the gutting of the equal protection doctrine in the united states, and highlights the need for alternative routes to justice. in light of the suffolk county law enforcement policy of denying u visa certification to domestic violence victims who did not participate in criminal proceedings against their abusers, talia would encounter colossal obstacles if she were to bring an equal protection claim against suffolk county law enforcement. any attempt to demonstrate the existence of a policy or practice of discrimination that pervaded all of her interactions with the police, with the family court system, and with the district attorney’s office and that led to the denial of her certification request would most likely fail to meet the requirements of the equal protection jurisprudence discussed in part ii.b, infra. the following section applies those cases to illustrate why she would be unlikely to prevail and notes the additional difficulties she would face in linking the discrimination she faced to domestic violence. under washington v. davis, talia would have to prove that the denial of her certification was the result of intentional discrimination.92 she could expound upon all the intersectional discrimination that had infected her interactions with the police and with the family court system, the negative effects of which culminated in the denial of her u visa certification request. all that information, however, would not only be insufficient to prove either that the police or that the family court affirmatively intended to discriminate against her, but it would certainly not show that the particular law enforcement officials who denied her certification request intended to discriminate against her. at best, it would illustrate the disparate impact she experienced as an undocumented latina domestic violence victim. if the court were to find that her showing of disparate impact were sufficient to make out a prima facie case of discrimination, the burden would then shift to the defendant law enforcement officials to show that the negative results of her interactions with law enforcement that preceded the denial of her certification request were the result of neutral decision-making processes.93 given the court’s deference to police discretion,94 it would probably not be difficult to make this rebuttal. the court could then apply the village of arlington heights v. metropolitan housing corp. balancing test to determine whether talia’s account of intersectional discrimination could establish an invidious intent on the part of the defendant law enforcement officials, despite their facially neutral decisions.95 talia could bolster her case with existing statistics regarding police response to domestic incidents that require language access services.96 since there is an existing language access policy in place, however, she would then have to prove not only that this policy is not followed, but also that it is not followed based on pervasive animus. this showing would be exceedingly difficult to make. that a language services policy exists at all and that the police department maintains statistical records regarding its use both seem to indicate a willingness on the part of law enforcement to attend to the needs of immigrants, thus refuting the notion of a generalized policy of discrimination. judicial deference to police discretion, even 92 washington v. davis, 426 u.s. 229, 239 (1976). 93 id. at 241. 94 see town of castle rock, colorado v. gonzales, 545 u.s. 748 (2005). 95 vill. of arlington heights v. metro. hous. corp., 429 u.s. 252, 265 (1977). 96 the suffolk county police department keeps records on which calls request language access services and documents the language requested. these records were requested and received by talia’s attorney. 268 intentional discrimination in u visa certification denials vol. 3:2 regarding purportedly mandatory police action,97 would make it difficult to prove intentional discrimination on the part of responding officers who responded to talia’s domestic incident calls. and, of course, the discretion mandated by the u visa provisions themselves would make it difficult to prove animus on the part of those who ultimately denied talia’s certification request, especially in light of their apparent and facially neutral policy of not granting certification to those who have not participated in a criminal proceeding. moreover, under feeney,98 the official intent that talia would need ultimately to prove would have to be the reason for the certification denial, for the district attorney’s failure to take the initiative to prosecute her abuser, or for any failures on the part of responding officers to adequately document the content of her many police incident reports. in other words, even if she could show that law enforcement officials were aware of the discrimination she faced and that they harbored discriminatory feelings about undocumented latina immigrant domestic violence victims, talia would fail if she could not prove that awareness or those feelings were intentionally acted upon in the decision to deny her certification. the fact that talia is an undocumented immigrant makes it even more unlikely that she would prevail. if she were a legal immigrant, any discrimination against her based on her alienage would be subject to strict scrutiny under graham v. richardson.99 perversely, however, because she is an undocumented immigrant, such discrimination would be subject only to rational basis review under plyler v. doe.100 finally, any discrimination that talia faced as a victim of domestic violence would most likely be impossible to prove. in deshaney v. winnebago county, a mother and her son brought suit against local social services for failing to protect the son from his father’s brutal beatings.101 though social services had received numerous complaints that the child was being abused, they failed to remove him from his father’s care, until finally his father beat him so badly that the four-year-old was left with permanent and severe brain damage.102 while the case involved a claim brought under the due process clause of the fourteenth amendment, it sets out the limits of the government’s willingness to actively protect its citizens and illustrates the difficulty of holding governmental actors accountable.103 the court held that the child’s substantive due process right to bodily integrity had not been violated, because the state had not actually, affirmatively harmed him and because he had not been harmed while in the state’s custody.104 in other words, the court ruled that the state has no positive duty to protect anyone whose liberty it has not itself restrained, even when it has notice that the person’s constitutional rights are being 97 see town of castle rock, 545 u.s. at 748. 98 pers. adm’r of mass. v. feeney, 442 u.s. 256 (1979). 99 graham v. richardson, 403 u.s. 365, 372 (1971). 100 plyler v. doe, 457 u.s. 202, 220 (1982). 101 deshaney v. winnebago cnty., 489 u.s. 189 (1989). 102 id. 103 id. 104 id. at 189-90 while certain ‘special relationships’ created or assumed by the state with respect to particular individuals may give rise to an affirmative duty, enforceable through the due process clause, to provide adequate protection . . . the affirmative duty to protect arises not from the state’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty. no such duty existed here, for the harms petitioner suffered occurred not while the state was holding him in its custody, but while he was in the custody of his natural father, who was in no sense a state actor. id. 2013 columbia journal of race and law 269 violated. even though the state’s department of social services was charged with protecting the child from domestic violence, it had no legal obligation to do so. in light of deshaney’s holding, the fact that police have discretion, particularly in domestic violence cases where legislation has made action mandatory,105 and talia’s status as an undocumented immigrant, it is hard to rebut the proposition that the suffolk county police officers who responded to her many, many calls ultimately owed her nothing. thus, the failures of the legal system to protect talia reveal multiple layers of discrimination even though under united states jurisprudence this is not considered an equal protection violation. today’s equal protection doctrine is both mystifying and unacceptable because it callously ignores the reality of discrimination and completely flouts its underlying purposes. the next section explores why the inter-american human rights standard is more in harmony with the underlying principles of the equal protection doctrine, and thus more likely to provide talia with redress. iv. equal protection under inter-american human rights law the inter-american human rights system focuses on the discriminatory impact of, rather than the intentions behind, the government’s actions. part a provides background information on the structure of this system and on the way complaints may be brought under it. part b discusses some examples of equal protection claims that have prevailed before the inter-american commission and court. part c explores the possibilities of talia’s claim before the commission in light of these decisions and the inter-american human rights system’s approach to equal protection. a. the united states and the inter-american system in 1948, the newly founded organization of american states (oas) recognized the american declaration of the rights and duties of man, a nonbinding statement of principles that would form the basis of the inter-american human rights system.106 while the declaration is not a treaty, both the interamerican commission on human rights and the inter-american court of human rights consider the obligations that it imposes on oas member states to be binding.107 the oas formed the inter-american commission on human rights in 1959 to promote human rights among its member states.108 it authorized the commission to consider communications brought by individuals, organizations, and states involving violations of the american declaration.109 such consideration involves requesting information from member states, making recommendations, and annually publishing its views regarding the communications.110 105 see town of castle rock, colorado v. gonzales, 545 u.s. 748 (2005). 106 louis henkin et al., human rights 568 (louis henkin et. al. eds., 2nd ed. 2009). the inter-american system is one of three main regional human rights systems in the world that developed alongside that of the united nations in the wake of world war ii. id. at 232. the other two are the european system, established by the european convention for the protection of rights and fundamental freedoms, see generally id. at 622–75, and the african system, established by the african charter on human and peoples’ rights, see generally id. at 675–98. one of the distinctive characteristics of the inter-american system is its concern for vulnerable, disadvantaged populations; for example, the inter-american court has imposed an affirmative duty on governmental actors not only to “respect” but also to “ensure” the rights of members of these groups in their dealings with private actors. id. at 589–90. 107 id. at 616–18. 108 id. at 568–69. 109 id. at 569. 110 id. 270 intentional discrimination in u visa certification denials vol. 3:2 the oas adopted the american convention on human rights in 1969.111 the convention developed and restated the principles expressed in the american declaration and made them binding on states parties. it also established the inter-american court of human rights, which has both advisory and contentious jurisdiction over cases of human rights violations (under the declaration, the convention, and other instruments) that may be referred to either by states parties or by the commission.112 unlike the declaration, the convention is binding on states.113 because the united states has signed but not ratified the convention, its human rights practices are not subject to the court’s contentious jurisdiction, although the court can review them under its advisory jurisdiction.114 however, since the united states is a member of the oas, individual complaints may be brought against it before the commission.115 and even though the declaration has been generally superseded by the convention, its terms are still in force with respect to countries, like the united states, that have not ratified the convention.116 in any event, the declaration’s utility as a source of rights lies in the fact that the inter-american commission has the power to hear petitions brought by individuals, organizations and states based on violations of the rights set out in the declaration.117 while the united states does not consider the decisions of the commission to be binding, it considers the declaration to be “a solemn moral and political statement” and responds seriously and thoroughly to complaints filed against it with the commission.118 and while the united states has for the most part resisted compliance with the commission’s decisions and recommendations, the views of the commission may be used as a persuasive tool by advocacy groups.119 the commission thus provides a unique and powerful forum for undocumented immigrants both to make their voices heard on an international level and to raise awareness of their plight domestically. in order for cases to reach the commission, however, it is necessary to first exhaust domestic remedies.120 thus, talia would have to try to bring her claim in american courts before undertaking litigation before the commission. b. equal protection under the inter-american system many of the rights listed in the declaration are independently protected in the united states— for example, freedom from discrimination; individual rights such as the rights to privacy, freedom of expression and association, and freedom of religion; political rights such as the right to vote; and a wide array of procedural rights.121 the right to equal protection under the law is a foundational principle of the declaration, and one that would have a significantly stronger possibility of success before the interamerican commission than before a united states court. 111 id. 112 henkin et al., supra note 106, at 570–71. 113 id. at 569. 114 id. at 617. 115 id. at 618. 116 id. 117 id. at 569. 118 henkin et al., supra note 106, at 619 (quoting statement of deputy legal adviser alan j. kreczko before the first committee of the 29th oas general assembly, washington, d.c., nov. 14, 1989, at 3). 119 caroline bettinger-lopez, jessica gonzales v. united states: an emerging model for domestic violence and human rights advocacy in the united states, 21 harv. hum. rts. j. 183, 190 (2008). 120 american declaration of the rights and duties of man, o.a.s. res. xxx, adopted by the ninth international conference of american states (1948), reprinted in basic documents pertaining to human rights in the inter-american system, oea/ser.l.v/ii.82, doc.6 rev.1 at 17 (1992). 121 id. 2013 columbia journal of race and law 271 while equal protection violations in the united states require a showing of discriminatory intent against a protected class, under the inter-american system (and human rights law generally), violations of equal protection occur when governmental actions have a disparate impact.122 such cases can be brought before the commission whether or not a group that has been discriminated against falls into a traditionally protected class, and whether or not the discriminatory action was in violation of domestic law.123 indeed, equal protection claims against the united states have been successful before the commission. for example, in dann v. united states, the commission determined that the united states had violated equal protection in the context of indigenous land rights.124 and in lenahan (gonzales) v. united states, the plaintiff made out a successful disparate impact claim by situating the discrimination she faced in the larger context of a general, systemic lack of response on the part of law enforcement and the american judiciary to domestic violence in general.125 these cases illustrate the fact that the commission is a forum in which plaintiffs can successfully find judicial recognition of the discrimination they have faced. though its decisions cannot force compliance on the part of the united states, continued instances of such recognition may help shape domestic public opinion and thereby lead to eventual legislative change. if nothing else, the commission’s recognition can at least provide a record of the discrimination and solace to those, like talia, who have faced discrimination that has been, for all intents and purposes, sanctioned by the very system that was supposed to redress it. 1. equal protection and domestic violence: maria da penha maia fernandes v . brazi l and lenahan (gonzale s ) v . uni t ed sta te s the inter-american commission has taken a much more progressive view toward the relationship between the equal protection clause and domestic violence than have american courts. in maria da penha maia fernandes v. brazil, the inter-american commission found that brazil had violated a domestic violence victim’s equal protection rights because of its failure to prosecute the perpetrator and its tolerance of such violence.126 the commission noted that the violence in this case formed “part of a general pattern of negligence and lack of effective action by the state in prosecuting and convicting aggressors” 127 and that such “general and discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence,” since it communicates to society an unwillingness on the part of the state to effectively prohibit and punish the violence.128 this case is noteworthy not only because it applied the concept of due diligence to establish state accountability for domestic violence,129 but also because of the way in which it highlights the discriminatory aspect of domestic violence. it illustrates two of the facets of the discrimination that victims of domestic violence face when requesting u visa certification: their status as women130 and their status as victims of domestic violence. while the state party in this case is brazil, the commission addressed its position regarding domestic violence in the united states in lenahan (gonzales) v. united states. 122 juridical condition and rights of the undocumented migrants, advisory opinion oc-18/03, inter-am. ct. h.r. (ser. a) no. 18 at 23 (sept. 27, 2003), available at http://www.corteidh.or.cr/docs/opiniones/seriea_18_ing.pdf. 123 caroline bettinger-lopez, human rights at home, 40 colum. hum. rts. l. rev. 19, 33 (2008). 124 dann v. united states, case 11.140, inter-am. comm’n. h.r., report no. 75/02, oea/ser.l/v/ii.117, doc. 1 rev. ¶ 171-72 (2002). 125 lenahan (gonzales) v. united states, case no. 12.626, inter-am. comm’n. h.r., report no. 80/11 (2011). 126 maria da penha maia fernandes v. brazil, case 12.051, inter-am. comm’n. h.r., report no. 54/01, oea/ser.l/v/ii.111, doc. 20 rev. ¶ 60 (2001). 127 id. at ¶ 56. 128 id. 129 henkin et al., supra note 106, at 867. 130 maria da penha maia fernandes, ¶ 47 (noting its own prior special report on brazil that found “there was clear discrimination against women who were attacked” in the context of domestic violence). 272 intentional discrimination in u visa certification denials vol. 3:2 in lenahan (gonzales) v. united states, the battered latina plaintiff who lost in town of castle rock, colorado v. gonzales, discussed in part ii.c., supra, successfully brought an equal protection claim against the united states before the inter-american commission. her petition made out her disparate impact claim by situating the discrimination she faced in the larger context of a general, systemic lack of response on the part of law enforcement and the american judiciary to domestic violence in general. it also claimed that the standard of equal protection in u.s. law did not meet international standards. the commission held that the united states’ “systemic failure . . . to offer a coordinated and effective response to protect jessica lenahan and her daughters . . . constituted an act of discrimination, a breach of their obligation not to discriminate, and a violation of their right to equality before the law under article ii of the american declaration.”131 the decision thus underscores the fact that the deshaney standard violates human rights law. moreover, by linking equal protection to the denial of legal process, gonzales recognizes and articulates a conception of equal protection that would more accurately address the intersectional discrimination faced by domestic violence victims.132 2. equal protection and undocumented migrants: juridical condition and rights of the undocumented migrants the inter-american human rights system also grants undocumented immigrants more expansive rights to equal protection. in its advisory opinion on the juridical condition and rights of the undocumented migrants, the inter-american court ruled that equal protection is a fundamental, jus cogens norm of international law,133 that “[s]tates must abstain from carrying out any action that, in any way, directly or indirectly, is aimed at creating situations of de jure or de facto discrimination[,]”134 and that “the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights.”135 it further held that a state is responsible both for its own actions and for those “of third parties who act with its tolerance, acquiescence or negligence, or with the support of some state policy or directive that encourages the creation or maintenance of situations of discrimination.”136 it also ruled “[t]hat states may not subordinate or condition observance of the principle of equality before the law and non-discrimination to achieving their public policy goals . . . including those of a migratory character.”137 while states are free to distinguish between those legally and illegally present within their borders, or between those who are citizens and those who are not, such distinctions must exist within the bounds of respect for the fundamental human rights principle of nondiscrimination.138 131 lenahan (gonzales) v. united states, case no. 12.626, inter-am. comm’n. h.r., report no. 80/11 (2011). 132 id. at ¶ 5. this holds that: the state failed to act with due diligence to protect jessica lenahan and [her daughters] leslie, katheryn and rebecca gonzales from domestic violence, which violated the state’s obligation not to discriminate and to provide for equal protection before the law under article ii of the american declaration. the state also failed to undertake reasonable measures to protect the life of leslie, katheryn and rebecca gonzales in violation of their right to life under article i of the american declaration, in conjunction with their right to special protection as girl-children under article vii of the american declaration. finally, the commission finds that the state violated the right to judicial protection of jessica lenahan and her next-of kin, under article xviii of the american declaration. (emphasis added). 133 juridical condition and rights of the undocumented migrants, advisory opinion oc-18/03, inter-am. ct. h.r. (ser. a) no. 18 (sept. 27, 2003) at 99. 134 id. 135 id. at 105. 136 id. at 109. 137 id. at 114. 138 id. at 102. 2013 columbia journal of race and law 273 the opinion distinguishes between “distinction” and “discrimination” to highlight the fact that while states can legally make distinctions between people present within their borders based on their citizenship status, any distinctions that are “not objective and reasonable” constitute discrimination, and are thus a violation of human rights.139 this articulation of discrimination is important with respect to the discretion granted to law enforcement regarding u visa certification, because such discretion opens the door to the very subjective, discriminatory decision-making that is prohibited under the interamerican system. moreover, it conceives of equal protection for undocumented immigrants as a question of fundamental human rights independent of legal status, in contrast to the supreme court’s approach in plyler v. doe.140 thus, a claim by an undocumented person before the inter-american commission would most likely be received without the reservations that it would face before a united states tribunal. c. what would happen if talia were to bring an equal protection claim under inter-american human rights law? the inter-american system’s cases and opinions discussed above indicate that talia would be much more likely to prevail on an equal protection claim before the commission than in the united states, both because the commission applies the disparate impact standard of equal protection violations, and because it recognizes that the lack of legal protection indicates the presence of discrimination. in light of the principles outlined in maria da penha maia fernandes v. brazil and lenahan (gonzales) v. united states, talia could successfully argue that she was penalized for law enforcement’s failure to record the assaults that she reported as crimes and because of its failure to prosecute her abuser. she could argue that these were violations of her right to equal protection under the american declaration. and in light of the inter-american court’s opinion on the juridical condition and rights of the undocumented migrants, the commission might even find that the grant of discretion to law enforcement in u visa certification decisions itself violated talia’s right to equal protection because it allows law enforcement to make decisions that may not be based on “objective and reasonable” distinctions. equal protection standards are clearly more favorable to battered undocumented women under interamerican human rights law than under united states law. talia thus would be much more likely to receive recognition of the discrimination she faced at the hands of suffolk county law enforcement before the commission than she would in a domestic court. however, in the short term, her success before the commission would most likely do little to improve the problems of discrimination faced by those similarly situated to her or to make it more likely that their u visa certification requests would be approved. v. extralegal strategies to promote the rights of battered undocumented women because the decisions of the inter-american commission are not binding on the united states and the reality that talia’s case, even if successful, would most likely not provide enduring change for other undocumented, battered latina immigrants, the following section explores other ways that human rights law could be used.141 139 juridical condition and rights of the undocumented migrants, supra note 133, at 95. 140 plyler v. doe, 457 u.s. 202, 220 (1982). 141 in many cases, it might also be impractical to make equal protection claims with the eventual plan of bringing them before the inter-american commission because it would be not only costly, but also ethically questionable to undertake litigation with the expectation (and even plan) that it would lose. 274 intentional discrimination in u visa certification denials vol. 3:2 even under the inter-american system, litigation is a slow way of remedying systemic issues that have led to the problem of discriminatory decisions regarding u visa certifications. moreover, successful claims do not guarantee that local, state, or federal governmental bodies in the united states will change any of the policies that have led to this problem. therefore, this section argues for the creation of a movement for undocumented immigrant victims of domestic violence. while by no means presenting a comprehensive plan, the section suggests possible ways to lay the foundation for the movement and acknowledges some of the hurdles that such an undertaking would likely encounter. a. building support from within: community-based organization the first step in creating this movement would be to unite dispersed groups of these immigrants, across racial and gender lines, in part because the problems of battered latinas are shared by battered women in other communities, and in part because there is no status with less bargaining power than being undocumented. for the purposes of uniting these groups, creating a climate in which they can find a voice, and building as broad a base of outside support as possible, advocates should begin to organize a campaign to address the diverse issues facing these immigrants with a two-pronged approach underneath the umbrella of human rights. first, shifting the bottom line of the dialogue about their rights from misguided notions that they are somehow less deserving of protection than those who are legally entitled to be in the united states or that they are responsible for what happened to them because they stayed with their abusers to the guiding principle that all human beings should have fundamental protections would not only make the idea of their rights one that most people would have a difficult time disputing, but could also be a powerful tool to unite diverse groups. indeed, this basic principle—uniting people not by the illegality of their presence, or by their status as victims, but by their shared human dignity— should create the foundation for the unification of groups across the undocumented domestic violence victim population. second, the burgeoning movement should appeal to domestic violence advocacy and immigrants’ rights groups for support by elaborating some of the core specific rights that appear in human rights instruments like the declaration of independence. in addition to formulating a common guiding principle and increasing manpower, this two-pronged approach would use the particular rights emanating from that principle both to address a wide array of issues that affect different subgroups and to appeal to members of those subgroups in different, tailored ways. increasingly, lawyers in the united states have been employing human rights sources and arguments in their work, including in grassroots activism.142 for example, in discussing the work of the coalition of immokalee workers (ciw),143 co-founder greg asbed claims that the ciw’s movement was organized around a human rights framework because it “is the only framework that does not modify the notion of rights as a set of rights specific to a particular sector of our society . . . but as fundamental rights to be respected across our entire society.”144 he then discusses three key methods that the 142 cynthia soohoo, human rights and the transformation of the “civil rights” and “civil liberties” lawyer, in from civil rights to human rights 71, 72 (cynthia soohoo et al. eds., 2010). 143 as its website explains: the ciw is a community-based organization of mainly latino, mayan indian and haitian immigrants working in low-wage jobs throughout the state of florida . . . [that] strive[s] to build [its] strength as a community on a basis of reflection and analysis, constant attention to coalition-building across ethnic divisions, and an ongoing investment in leadership development[.]” about ciw, coalition of immokalee workers, http://www.ciw-online.org/about.html (last visited may 4, 2013). the ciw has been recognized both nationally and internationally for its work in combatting human trafficking and involuntary servitude, in fighting the corporate food industry’s exploitation of agricultural labor, and in raising the wages of farmworkers. id. 144 greg asbed, coalition of immokalee workers: “golpear a uno es golpear a todos!” to beat one of us is to beat us all!, in 3 bringing human rights home, vol. three 1, 3 (cynthia soohoo et al., eds. 2008). 2013 columbia journal of race and law 275 movement’s organizers used to build participation: popular education, leadership development, and protest actions.145 advocates who forge the beginnings of the undocumented domestic violence movement should also be willing to become a part of the communities of these immigrants and to work with, and not only on behalf of, their members.146 these advocates should adopt the ciw’s strategies within the greater framework of human rights. in this way, they could use them to appeal to as broad a base as possible. adapting these tools to a broader movement for the rights of undocumented immigrant victims of domestic violence, however, raises the question of how exactly the activists could mobilize a dispersed population, many of whose members wish to remain invisible. indeed, as noted earlier, these immigrants are doubly marginalized, because of the fear and isolation that accompany being both an undocumented immigrant in the united states and a victim of violence at home.147 to work within these underground communities, advocates should first emphasize the ciw’s first two tools—popular education and leadership development. protest strategies should come into play later, after the core movement has already begun, and once it has gained support from outside organizations with overlapping interests. popular education and leadership development should take place both within discrete sectors with large numbers of undocumented female workers and within particular neighborhoods with high numbers of undocumented residents. by using these strategies on both fronts, the ciw model built on a foundation of human rights could unite different undocumented members of each subset first with one another, and then in turn with each member’s particular cultural and residential community. through the language of human rights, this cross-sectional approach could also create solidarity by uniting people whose rights have been violated, create a recognition of the abuse occurring within as an equally serious violation of a human dignity, and empower those who have been marginalized both within and outside their communities by involving them as necessary and equal participants in the movement. within particular interest groups, immigrants should be educated about their legal rights through “codes” like those employed by the ciw: stories, videos, songs, theatrical and visual enactments. as noted by asbed, these forms of media would be useful in provoking reflection about community reality and sparking discussion about common problems.148 however, while the ciw, in those media, was addressing a uniform group of latino farmworkers, many subsets of undocumented immigrant domestic violence victims consist of members of distinct cultures and linguistic backgrounds. if, for example, one thinks of a sector such as the restaurant industry, where immigrants from all over the world find work, one can readily imagine the diverse group of attendance at such a group meeting. popular education in this instance, by focusing on visual stimuli, would be a useful starting point for communicating common ground. and if such discussion emphasized the fundamental human rights that are shared by the different members of these groups, a collective consciousness of the problems these immigrants face could take shape on an even deeper level of shared injustice. discussion should occur not only about the legal injustices the groups face, such as the lack of access to law enforcement protection, but also about more universal, profound infractions on the dignity and humanity of all members of the group. popular education under the umbrella of human rights could in turn be useful within particular residential communities of battered undocumented immigrants. by overlapping with the popular education occurring within the different subgroups with which members identify, the identification of 145 id. at 7. 146 see, e.g., gerald p. lopez, rebellious lawyering: one chicano’s vision of progressive law practice, in new perspectives on law, culture, and society 169 (2002). 147 jamie rene abrams, legal protections for an invisible population: an eligibility and impact analysis of u visa protections for immigrant victims of domestic violence, 4 mod. am. 26, 26 (2008). 148 asbed, supra note 143, at 8. 276 intentional discrimination in u visa certification denials vol. 3:2 and discussion concerning common problems of the residential community through the language of human rights could nourish a more complex consciousness of community. here the development of common ground should occur among members of groups who share interests concerning the neighborhoods in which they live and, in many instances, similar cultural backgrounds. apart from the painful connection of domestic violence, the interaction of the two for popular education could create a chain of identification, linking members who identify with one another within a cultural and residential community to undocumented victims outside the community through members who share interests with them. leadership development could also occur within each type of community (that is, both within different cultural groups and within different neighborhoods). as in the ciw model, intensive workshops could take place, with lessons about communication strategies, about how to organize and run community meetings, and about how to use the internet to reach out to potential supporters and to the media, and with a more in-depth study of domestic legal rights and the roots and law of human rights.149 the emerging leaders would be those members of the community who chose to take on positions of responsibility. in this way, the advocates and activists who laid the foundations for the movement would recede to more supportive roles and avoid alienating members of the group who might perceive them as “others.”150 moreover, having a core set of leaders composed of members of different cultural communities would be necessary to cast as broad a net as possible within the larger undocumented community, in order to ensure the continued participation of battered women who have been marginalized within the subsets of the community, and in order to appeal to as many outside groups as possible. b. reaching out: potential bases of support from outside the community getting support from established outside groups might well be essential to raise public awareness of the movement’s existence and, in turn, to initiate successful protest actions, the ciw’s third key method of activism. a variety of potential bases of support exist for undocumented immigrants’ rights, with varying levels of overlap with the undocumented community’s interests and membership, especially if these rights are framed within a human rights dimension. obvious examples of these groups include immigrants’ rights and anti-domestic violence organizations; less probable, but still conceivable, supporters might include religious activists, such as evangelical cause lawyers. to build relationships with these groups, the movement’s leaders should send delegates to attend their meetings and become involved in their work, as well as receive delegates from the other groups in turn.151 in this way, the leaders could promote their agenda, ensure that their interests are represented, and perhaps influence the other groups to incorporate the human rights framework into their own efforts. the movement’s leaders should also collaborate with members of these groups to plan protests and public hearings. indeed, members of these other groups might be less likely to fear arrest and thus more likely to engage in protest, and their support might also encourage the movement’s members to share their stories with a broader audience. on the other hand, members of allied groups who have not suffered the particular rights abuses that battered undocumented women face may well be less inclined to risk arrest on their behalf. even though the human rights framework can have broad appeal, the groups most likely to be willing to place 149 id. 150 see michael diamond, community lawyering: revisiting the old neighborhood, 32 colum. hum. rts. l. rev. 67 (2000). 151 matthew a. cole, try this at home! a do-it-yourself guide to winning lesbian and gay civil rights 135 (1996) (providing a number of grassroots organization strategies). 2013 columbia journal of race and law 277 an emphasis on the rights of battered undocumented immigrants are those who identify with core defining characteristics of the group. since even legal immigrants face discrimination and are vulnerable to racial profiling in part because of discriminatory attitudes toward undocumented immigrants, and since they might identify with undocumented members of their own nationalities or cultural backgrounds, the campaign may be most likely to get the strongest support from immigrants’ rights organizations. furthermore, advocates for these groups would have the experience of working with immigrant communities, and might thus have some understanding of the complexities of cross-cultural communication.152 if so, they might be able to collaborate more effectively with the movement’s leaders. in any event, these factors indicate that one plausible approach in seeking outside support would be to target direct action immigrants’ rights organizations first before reaching out to the other groups. also, domestic violence advocacy groups might support the campaign if its members were to recognize the role of abuse within the community in disempowering their more marginalized constituents and were willing to advocate for their rights. even though domestic violence organizations have sometimes tended to ignore undocumented victims,153 a growing number have begun to include these victims in their advocacy efforts. a few have even begun to address their specific needs, such as sepa mujer, a community-based latina rights organization in suffolk county that works mostly with undocumented victims of domestic violence.154 organizations like sepa mujer could be a valuable resource to provide additional support for abused members of the broader movement, and would benefit from the publicity that would accompany participation in the campaign. religious groups might also be allies for the movement because their ideals might be compatible with the human rights framework. for example, lawyers at the center for law and religious freedom, an evangelical public interest firm, uniformly base their approaches to advocating for “equal access” to resources and facilities in order to evangelize universities on the biblical mandate to “do unto others as you would have them do unto you.”155 these lawyers have been tolerant of other groups’ employment of this principle to achieve unrelated, even potentially conflicting aims.156 a human rights approach that emphasizes basic, fundamental rights may appeal to these groups’ religious convictions. on the other hand, framing human rights within any religious tradition could alienate members of the movement who do not belong to that tradition. indeed, support from any outside group, regardless of the prioritization of its concerns or of the degree to which its interests overlap or conflict with the movement’s goals, might pose a threat to the unity of the movement. tacking support for undocumented battered women’s rights onto an agenda that prioritizes only one dimension of their concerns, such as immigration or gender equality, could run the risk of marginalizing these women within their own movement. for example, battered undocumented women seeking to participate within a broader outside movement whose aims overlap with their concerns might find themselves facing discrimination from within their own particular sub-community, as some transgender activists found when they sought to join the lgbt movement.157 alternatively, while seeking support from outside groups could be especially effective in framing the human rights concerns of the battered undocumented movement within the tradition or language of more widely 152 see, e.g., susan bryant, the five habits: building cross-cultural competence in lawyers, 8 clinical l. rev. 33 (2001–2002). 153 orloff et al., supra note 73, at 45. 154 see services for the advancement of women, sepa mujer (feb. 25, 2011), http://www.sepamujer.org. 155 kevin r. den dulk, in legal culture but not of it: the role of cause lawyers in evangelical legal mobilization, in cause lawyers and social movements 211 (austin sarat & stuart a. scheingold eds., 2006). 156 id. 157 phyllis randolph frye, facing discrimination, organizing for freedom: the transgender community, in creating change: sexuality, public policy, and civil rights 456 (2002). 278 intentional discrimination in u visa certification denials vol. 3:2 accepted groups, such a strategy could alienate members of the movement who do not share those groups’ concerns. many of the ideas discussed above are admittedly based on numerous implicit assumptions and untested hypotheses. they are explored here simply to outline briefly some extralegal strategies and some potential problems to consider in any future attempt to achieve meaningful protection for the rights of battered undocumented women. vi. conclusion this note endeavors to illustrate the limitations of the equal protection doctrine through its inability to redress the intersectional discrimination that results in the denial of u visa certification requests to undocumented latina victims of domestic violence. it also argues that a human rights conceptualization of equal protection is better suited to provide justice for these women, and to remedy the myriad of interconnected forms of discrimination that all battered undocumented women face. in light of the current climate of anti-immigrant fervor that has been erupting in recent years, not only in suffolk county but across the united states,158 it is reasonable to be skeptical of the potential either of international human rights litigation or of a domestic human rights movement for battered undocumented women to accomplish meaningful legal change. the real value of such efforts, however, lies in their potential to change the way people think about battered undocumented immigrant women— to analyze the intersections of discrimination that they face, to deconstruct the barriers between undocumented groups themselves, and to break down walls between the undocumented population and the rest of american society. in this way, such advocacy efforts can perhaps plant the seeds for legal change in subsequent generations. such an approach, while idealistic, is neither unprecedented, nor, this note contends, unrealistic. indeed, karen narasaki, the executive director of the asian american justice center, claims that since the passage of anti-terrorism measures in the wake of september 11th, human rights approaches will be more effective than domestic legal avenues in achieving immigrants’ rights.159 she also argues that the language of human rights resonates more with youth today than it once did, and that immigrants are indeed beginning to think of their rights as fundamental rather than civil.160 if she is correct, the nourishment of this burgeoning consciousness of human rights with regard to battered undocumented women may well bear future fruit. as california’s labor commissioner julie su writes, “human dignity must be the measure of what we recognize as legal rights.”161 this note seeks to present some ideas that can help build a concrete foundation for the realization of this maxim. 158 see supra note 88. for the obama administration’s position on immigration reform, see immigration, whitehouse.gov, http://www.whitehouse.gov/issues/immigration (last visited may 8, 2013). for information on the most recent bipartisan efforts to address the issue, see charles schumer et al., bipartisan framework for comprehensive immigration reform, available at http://www.c-span.org/uploadedfiles/content/documents/bipartisan-framework-forimmigration-reform.pdf. see also ashley parker, senators call their bipartisan immigration plan a “breakthrough,” n.y. times (jan. 28, 2013), http://www.nytimes.com/2013/01/29/us/politics/senators-unveil-bipartisan-immigrationprinciples.html. 159 soohoo, supra note 141, at 95. 160 id. 161 julie su, making the invisible visible: the garment industry’s dirty laundry, 1 j. gender race & just. 405, 413 (1998). the first principles of standing: privilege, system justification, and the predictable incoherence of article iii christian b. sundquist * this article examines the indeterminacy of standing doctrine by deconstructing recent desegregation, affirmative action, and racial profiling cases. this examination is an attempt to uncover the often unstated meta-principles that guide standing jurisprudence. the article contends that the inherent indeterminacy of standing law can be understood as reflecting an unstated desire to protect racial and class privilege, which is accomplished through the dogma of individualism, equal opportunity (liberty), and “white innocence.” relying on insights from system justification theory, a burgeoning field of social psychology, the article argues that the seemingly incoherent results in racial standing cases can be understood as unconscious attempts to preserve the status quo. the article proposes moving “beyond the transcendental nonsense” of standing doctrine and its inevitable replication of economic and racial privilege by completely eliminating all standing limitations to the access of justice. i. introduction ............................................................................. 120 ii. standing doctrine and article iii ................................... 123 a. contemporary justifications for the doctrine of standing............................................................................. 128 1. separation-of-powers theories .................................. 129 2. representational theories ........................................... 131 *associate professor of law, albany law school. j.d., georgetown university law center. i thank mary lynch, peter halewood, donna young, alicia ouellette, nancy ota, stephen clark, maria grahn-farley, keith hirokawa, ray brescia, and lenese herbert for their support and advice during the preparation of this article. i am especially grateful to james gathii and anthony farley for their invaluable comments on previous drafts of this article. i also express appreciation to my assistant theresa colbert and my research assistants christopher stevens and allyson stein for their amazing support. 2011 columbia journal of race and law 120 iii. the indeterminacy of standing doctrine .................... 134 a. of black injuries, desegregation, and profiling ............ 135 b. of white injuries, innocence, and merit ....................... 141 iv. the first principles of modern standing doctrine ...................................................................................... 146 a. social justification theory, privilege, and threats to the status quo ................................................................. 146 b. from the descriptive to the normative: sjt, critical theory, and the law of standing .................................... 149 c. the first principles of standing law ............................. 154 v. beyond the “transcendental nonsense” of standing ...................................................................................... 156 vi. conclusion ................................................................................. 160 i. introduction the murky waters of standing doctrine have been criticized for their indeterminacy,1 political undercurrents,2 and even “apparent lawlessness.”3 the law of standing ostensibly seeks to ensure that the federal courts entertain only justiciable “cases” and “controversies.”4 the contemporary interpretation of the “cases” and “controversies” language of article iii of the united states constitution borrows heavily from traditional tort concepts of damage and causation. accordingly—under the modern standing framework—plaintiffs must demonstrate that they have suffered an injury to a cognizable legal interest and that said injury was caused by the actions of the opposing party.5 plaintiffs also must request from the court relief that is capable of redressing the claimed injury.6 1  see, e.g., duncan kennedy, form and substance in private law adjudication, 89 harv. l. rev. 1685 (1976); david kairys, law and politics, 52 geo. wash. l. rev. 243 (1984); gary peller, the metaphysics of american law, 73 calif. l. rev. 1151 (1985); clare dalton, an essay in the deconstruction of contract doctrine, 94 yale l. j. 997 (1985); joseph william singer, the player and the cards: nihilism and legal theory, 94 yale l.j. 1 (1984). 2  richard j. pierce, is standing law or politics?, 77 n.c. l. rev. 1741 (1999). 3  william fletcher, the structure of standing, 98 yale l.j. 221, 223 (1988). 4  u.s. const. art. iii. 5  see, e.g., valley forge christian coll. v. am. united for separation of church & state, inc., 454 u.s. 464, 472 (1982). 6  id. at 475. 121 the first principles of standing vol. 1:1 the seemingly clear and orderly tripartite framework of article iii standing doctrine nonetheless has spawned widespread and consistent uncertainty.7 theoretical justifications for standing doctrine are largely inadequate to reconcile conflicting judicial interpretations of article iii. these theories often rely on an incoherent adherence to a private rights framework for adjudication. the current content of standing law simply cannot be rationalized by reference to classic representational or separation-of-powers theories. what, then, guides the content and meaning of modern standing law? how can one reconcile disparate judicial interpretations of the meaning of article iii standing doctrine when structural and constitutional arguments fail? this article argues that the inherent indeterminacy of standing law can be understood as reflecting an unstated desire to protect racial and class privilege, which is accomplished through the dogma of individualism, equal opportunity (liberty), and “white innocence.” relying on insights from system justification theory (sjt), a well-respected field of social psychology, this article argues that the seemingly incoherent results in racial standing cases can be understood as (perhaps) unconscious attempts to preserve the status quo. the article proposes moving “beyond the transcendental nonsense”8 of standing doctrine, and its inevitable replication of economic and racial privilege, by completely eliminating all standing limitations to the access of justice. part ii of this article will recount the historical genesis of standing doctrine while examining the court‟s contemporary interpretation of the standing requirements of article iii. for nearly a quarter of a century following the creation of article iii, the “cases” and “controversies” language of article iii was not interpreted by the courts as imposing any restrictions on justiciability. rather, federal review of cases was governed solely by the existence of a substantive cause of action. 7  see flast v. cohen, 392 u.s. 83, 99 (1968) (harlan, j., dissenting) (describing standing doctrine as “one of the most amorphous [concepts] in the entire domain of public law”) (citation omitted); heather elliot, the functions of standing, 61 stan. l. rev. 459, 466 (2008) (“such unpredictability has generated extensive controversy. critics have argued that the doctrine is „incoherent,‟ is „manipulable‟ and permeated with „doctrinal confusion‟ . . . . ”) (citations omitted). 8  felix cohen, transcendental nonsense and the functional approach, 35 colum. l. rev. 809, 812 (1935). 2011 columbia journal of race and law 122 this section also will review and critique the prominent theoretical and constitutional defenses of article iii standing doctrine. the modern interpretation of the “cases” and “controversies” language of article iii as requiring a showing of injury-in-fact, causation, and redressability is defended largely on separation-of-powers and representational grounds. part ii asserts that the current standing framework does not protect “stakeholder” plaintiffs,9 despite widely-held beliefs that representational theories ensure that the judicial process is sufficiently representative of the body politic.10 part iii of this article will examine the indeterminate nature of modern standing doctrine. in particular, this section will examine the court‟s recent standing jurisprudence in the desegregation, affirmative action, racial discrimination, and racial profiling contexts in order to illustrate the unworkable application of contemporary standing requirements. part iv of this article addresses the seemingly irreconcilable conflict between the court‟s broad interpretation of article iii “injury” in cases that are hostile to desegregation and affirmative action efforts with the overly restrictive conception of “injury” applied in cases that seek to promote racial integration or redress racial discrimination. the section relies heavily on insights from sjt to explain how the indeterminacy of standing doctrine can be explained only by an unstated desire to protect racial and class privilege. sjt demonstrates that the court is cognitively motivated to respond to perceived threats to the status quo by rationalizing the existence of social and racial inequality. the final section of this article advocates moving “beyond the transcendental nonsense”11 of standing and its inevitable replication of economic and racial privilege. the court must eliminate all vestiges of the current standing framework in order to remove what has proven to be one of the principal barriers to social justice. 9  this term, in a standing context, is used to refer to those who stand to gain something or suffer an injury-in-fact as the result of a lawsuit—those who have a direct stake in the litigation‟s outcome. 10  lea brilmayer, the jurisprudence of article iii: perspectives on the “case or controversy” requirement, 93 harv. l. rev. 297 (1979). 11  cohen, supra note 8, at 812. 123 the first principles of standing vol. 1:1 ii. standing doctrine and article iii the ubiquitous “cases” and “controversies” language of article iii has long been relied upon by the court to legitimize the narrowing of federal court jurisdiction.12 the court has argued that those terms impose strict constitutional limits on federal judicial review and that federal courts lack jurisdiction over cases where the plaintiff lacks a “sufficient stake” in the outcome.13 however, the current interpretation of article iii as imposing “standing” requirements is neither a natural nor inevitable jurisprudential evolution. indeed, at the time of this nation‟s founding, the law did not recognize limitations on federal judicial review based on notions of “standing.”14 rather, the ability of plaintiffs to access justice through the federal courts was tied to their ability to articulate a legal right and frame a viable substantive cause of action.15 thus, plaintiffs who sufficiently alleged a prima facie case could have their rights protected by the courts of the united states. it is unsurprising that the courts did not feel constitutionally compelled to craft a standing doctrine during this time. after all, the text of article iii itself does not refer to “standing,” “injury,” or “causation,”16 and it certainly does not require that federal plaintiffs have a “personal stake”17 in the outcome of the litigation. article iii, on its face, merely extends the “judicial [p]ower” to a number of specific categories of “cases” and “controversies.”18 tellingly, the 12  see u.s. const. art. iii. 13  sierra club v. morton, 405 us. 727, 731-32 (1972). 14  see e.g., cass r. sunstein, what’s standing after lujan? of citizen suits, “injuries,” and article iii, 91 mich. l. rev. 163, 170 (1992) (noting that, during the period from the nation‟s founding until roughly 1920, “there was no separate standing doctrine at all”) (internal citations omitted). 15  id. at 170. in arguing that article iii does not prevent so-called citizen suits on standing grounds, professor sunstein states: “no one believed that the constitution limited congress‟ power to confer a cause of action. instead, what we now consider to be the question of standing was answered by deciding whether congress or any other source of law had granted the plaintiff a right to sue. to have standing, a litigant needed a legal right to bring suit . . . . if neither congress nor the common law had conferred a right to sue, no case or controversy existed.” id. 16  see u.s. const. art. iii. 17  gratz v. bollinger, 539 u.s. 244, 260-61 (2003) (requiring plaintiff to have personal stake in outcome of litigation in order to satisfy standing requirement). 18  u.s. const. art. iii 2011 columbia journal of race and law 124 court‟s first reference to “standing” as an article iii limitation did not occur until 1944.19 the first whisperings of a standing limitation emerged— somewhat ironically—during the progressive jurisprudence of the new deal court. the new deal court, led by justices brandeis and frankfurter, sought to “insulate progressive and new deal legislation from frequent judicial attack” in their steadfast belief that courts should not intervene in democratic processes.20 during this period, the court eventually interpreted article iii as incorporating a “legal interest” requirement for plaintiff standing.21 the “legal interest” requirement thus constitutionalized the prior practice of requiring plaintiffs to demonstrate a connection to a common law right and served to protect the supreme court‟s developing progressive doctrine from challenge by more conservative courts. the passage of the administrative procedure act (“apa”) in 1946 was an important moment in the development of the law of standing.22 the apa provides that “[a] person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”23 the expansion of federal court jurisdiction over agency actions did not supplant the legal interest requirement of yore. rather, the passage of the apa was in part an attempt to “codify the developing body of judge-made standing law . . . to recognize standing in three straightforward categories of cases.”24 those three categories included situations where a plaintiff‟s common law or statutory legal interest was implicated. thus, the passage of the apa did not alter the existing rightsoriented standing analysis. the burger and rehnquist courts, however, sought to develop a more restrictive view of standing under article iii over the next few decades by narrowly interpreting plaintiff injuries that conflicted with their burgeoning conservative ideological agendas.25 19  sunstein, supra note 14, at 170 (citing stark v. wickard, 321 u.s. 288, 307-09 (1944)). 20  id. at 179. see also stephen l. winter, the metaphor of standing and the problem of self-governance, 40 stan. l. rev. 1371, 1418-25 (1988). 21  see supra note 5 and accompanying text. 22  see administrative procedure act, pub. l. no. 79-404, 60 stat. 237 (1946) (codified as amended at 5 u.s.c. §§ 551-59, 701-06 (2006)). 23  5 u.s.c. § 702. 24  sunstein, supra note 14, at 181. 25  for examples of the burger court denying standing to disfavored federal claims, see warth v. seldin, 422 u.s. 490 (1975), city of los angeles v. 125 the first principles of standing vol. 1:1 accordingly, the court ultimately incorporated common law tort concepts of injury, causation, and redressability into its article iii standing calculus. the court‟s landmark decision in association of data processing organization v. camp completely displaced the former focus on substantive legal rights, holding that federal court review was limited to only those plaintiffs who could demonstrate an “injury in fact, economic or otherwise.”26 the court declared that the legal interest test was relevant only to “the merits” of a case, and that the “question of standing [was] different. it concerns, apart from the „case‟ or „controversy‟ test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”27 while this case interpreted standing under the apa, future decisions have clarified that a showing of injury-in-fact is a constitutional standing requirement of article iii.28 the current framework for standing thus incorporates the injury-in-fact requirement, while adding causation and redressability to the calculus. accordingly, today, a plaintiff is constitutionally required to demonstrate that she has (1) suffered an injury-in-fact to a legally cognizable right, (2) where such injury is fairly traceable to the defendant‟s actions, and (3) the relief requested by the plaintiff is sufficient to redress her injury.29 while this seemingly compact and lyons, 461 u.s. 95 (1983), and allen v. wright, 468 u.s. 1250 (1984), all discussed infra. for examples of the rehnquist court denying standing to disfavored claims, see elk grove unified sch. dist. v. newdow, 542 u.s. 1 (2004) (holding that the father of a school-aged child lacked standing to challenge a school district‟s policy requiring teacher recitation of the pledge of allegiance because he could not assert the rights of his daughter), and lujan v. defenders of wildlife, 504 u.s. 555 (1992) (holding that the injury alleged by an environmental group, specifically that their ability to enjoy viewing endangered species would be harmed by new government regulations, was too speculative to qualify for article iii standing). 26  397 u.s. 150, 152 (1970). 27  id. at 153. 28  see, e.g., vt. agency of natural res. v. united states ex rel. stevens, 529 u.s. 765, 771 (2000); steel co. v. citizens for a better env‟t, 523 u.s. 83, 102-04 (1998); bennett v. spear, 520 u.s. 154, 162 (1997); lujan v. defenders of wildlife, 504 u.s. 555, 560 (1992). 29  see, e.g., valley forge christian coll. v. am. united for separation of church & state, inc., 454 u.s. 464, 473 (1982) (stating that “the exercise of judicial power, which can so profoundly affect the lives, liberty, and property of those to whom it extends, is therefore restricted to litigants who can show „injury in fact‟ resulting from the action which they seek to have the court adjudicate”). the court also has articulated a number of sub-constitutional restrictions on federal court review. these additional standing limitations 2011 columbia journal of race and law 126 bright-line tripartite scheme is notoriously rife with ambiguity, bias, and unpredictability,30 a few basic themes can be gleaned from some of the court‟s seminal decisions on standing. first, the court regularly has denied standing on the grounds that the claimed injuries were speculative, conjectural, or not tied to the actions of the defendant. while an “actual injury” surely could suffice for standing purposes, the court has long recited the proposition that there must be a “real and immediate threat” of a prospective injury to satisfy standing.31 in the seminal, and oft criticized, lujan v. defenders of wildlife decision, plaintiffs challenged a policy adopted by the secretary of the interior that rendered the endangered species act (“esa”) applicable only to actions occurring within the united states or on the high seas.32 the section of the esa relevant to the litigation requires federal agencies to insure that their actions are “not likely to jeopardize the continued existence of any endangered species.”33 the challenged regulation in lujan made that requirement inapplicable to actions by federal agencies in foreign countries.34 the plaintiffs, who were members of a national wildlife organization, sued to invalidate the regulation under the citizen-suit provisions of the esa.35 one of the plaintiffs alleged that she had “observed the traditional habitat of the endangered nile [sic] crocodile” during her past travels to egypt, and “intend[ed] to do so again” in the future.36 thus, she argued that she “will suffer harm in fact as a result of [the] american . . . role . . . in overseeing the rehabilitation of the answan high dam on the nile.”37 another usually are not argued to be derived from the “cases” and “controversies” language of article iii, but rather reflect various “prudential” concerns. see e.g., bennett, 520 u.s. at 162-63 (zone of interests limitation); valley forge, 454 u.s. at 473-74 (generalized grievances limitation); warth v. seldin, 442 u.s. 490, 499 (1975) (restriction on third-party standing). 30  see infra part iii. 31  see, e.g., city of los angeles v. lyons, 461 u.s. 95, 101-02 (1983). 32 504 u.s. 555, 557-58 (1992) (citing endangered species act of 1973, pub. l. no. 93-205, 87 stat. 884 (codified as amended at 16 u.s.c. §§ 1531-37a, 1538-44 (1988)). 33  id. at 558 (quoting 16 u.s.c. § 1536(a)(2)). 34  id. at 558-59 (citing 50 c.f.r. 402.01 (1991)). 35  id. at 571-72. the citizen-suit provision of the esa grants standing to “any person” alleging a violation “of any provision of this chapter.” 16 u.s.c. § 1540(g). for a critique of the court‟s holding that the citizen-suit provision of the esa was not a sufficient congressional substitute for the requirements of article iii standing, see generally sunstein, supra note 14. 36  lujan, 504 u.s. at 563. 37  id. 127 the first principles of standing vol. 1:1 plaintiff alleged that she had “observed th[e] habitat” of “endangered species such as the asian elephant and the leopard” in sri lanka, and would like to do so again in the future.38 in a majority opinion authored by justice scalia, the court held that the plaintiffs had failed to satisfy the constitutional requirement of injury.39 the court viewed the plaintiffs‟ allegations of injury as a future “inten[t] to return to the places they had visited before—where they will . . . be deprived of the opportunity to observe animals of the endangered species.”40 so framed, the court found the allegations of harm to be “pure speculation and fantasy,”41 thus failing the standing requirement of an injury that is “actual or imminent.”42 the court expounded upon the lujan treatment of prospective injury in the bennett v. spear decision.43 in bennett, the plaintiffs challenged a biological opinion issued by the fish and wildlife service (“fws”) under provisions of the esa.44 the esa requires the fws to insure that their actions are not likely to jeopardize the existence of an endangered species.45 if an agency— such as the fws—determines that an action in fact may affect a species adversely, they are required to issue a “biological opinion” stating how the action would affect the species and detailing any “reasonable and prudent” alternatives to the action.46 in this case, the fws was notified that a water reclamation project might affect two species of endangered fish.47 accordingly, the fws issued a biological opinion stating that reducing the water levels on the affected lakes would avoid jeopardizing the endangered fish species during the operation of the reclamation project.48 the plaintiffs— 38  id. at 563-64. 39  id. at 564. the court also held that the requirement of redressability had not been satisfied, in part because “the [federal] agencies generally supply only a fraction of the funding” for the foreign projects, and thus there was no reason to believe that those projects would be suspended if the regulation was invalidated. id. at 571. 40  id. at 564. 41  id. at 567. 42  id. at 560. see also summers v. earth island inst., 129 s. ct. 1142, 1150-51 (2009) (denying standing on the grounds that an intent to visit forests in the future represented an insufficiently concrete injury). 43  520 u.s. 154 (1997) (scalia, j.). 44  id. at 157 (citing 16 u.s.c. §§ 1533, 1536). 45  id. at 158 (citing 16 u.s.c. § 1536(a)(2)). 46  id. at 158 (citing 16 u.s.c. § 1536(b)(3)(a)). 47  id. at 159. 48  id. 2011 columbia journal of race and law 128 two oregon irrigation districts that receive water from the reclamation project—sued on the grounds that their use of the lakes for “recreational, aesthetic and commercial purposes, as well as for their primary source[] of irrigation water” would be “irreparably damaged” by the actions of the fws.49 the court began its analysis by reciting the mantra that article iii required injuries to be “concrete and particularized,” and not “conjectural or hypothetical.”50 the court also acknowledged the government‟s contention that the plaintiffs did “not necessarily establish (absent information concerning the bureau‟s water allocation practices) that petitioners will receive less water.”51 nonetheless, the court held that the allegations of injury were sufficient to invoke jurisdiction under article iii.52 the court stressed that “the manner and degree of evidence required at the successive stages of litigation” is relevant to the analysis of injury.53 accordingly, the majority felt that “general factual allegations of injury” made by the plaintiffs during the pleading stage were sufficient to “presume [the] specific facts under which petitioners will be injured.”54 the lujan and bennett decisions demonstrate just a few of the doctrinal reiterations favored by the court in its analysis of article iii standing. the tools, slogans, and intonations that standing doctrine has cultivated, however, are insufficient to resolve predictably the critical question of access to justice. a. contemporary justifications for the doctrine of standing the classic justifications for modern standing doctrine embody two central themes: separation-of-powers and representative democracy. these jurisprudential perspectives purport to impute meaning and purpose to the current standing framework, a necessary task given that the constitution does not by its terms animate any notion of “standing.” nonetheless, these classic theoretical defenses of standing suffer from well-documented analytical flaws. 49  id. at 160. 50  id. at 167. 51  id. 52  id. at 168. 53  id. at 167-68. 54  id. at 168. the court also held that the alleged injury was fairly traceable to the actions of the fws, given that the issuance of a biological opinion was a “virtually determinative effect” on agency action. id. at 170. 129 the first principles of standing vol. 1:1 1. separation-of-powers theories many regard the current law of standing as an essential limit on the power of an unelected judiciary in a democratic society. the court‟s decision in allen v. wright is widely seen as the paradigmatic example of a separation-of-powers defense of standing law.55 in allen, the parents of african-american children sued the internal revenue service on the grounds that its policy of providing taxexempt status to racially-segregated private schools violated their constitutional rights, while simultaneously undermining their children‟s ability to receive a desegregated public education.56 in dismissing the action for want of an injury-in-fact or causation for standing purposes, the court clarified that a central purpose of the article iii justiciability requirements was to ensure a “proper—and properly limited—role of the courts in a democratic society.”57 the court further elaborated on the reasoning underlying its denial of standing: all of the doctrines that cluster about article iii—not only standing but mootness, ripeness, political question, and the like—relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.58 as many other commentators have noted, the court nonetheless has failed to connect the constitutional duty to maintain an adequate separation-of-powers with the need to maintain rigid standing requirements.59 in what ways are the requirements for 55  see allen v. wright, 468 u.s. 737 (1984). 56  id. at 739-40. for a more thorough examination of the facts and holding of the allen case, see infra part iii.a. 57  id. at 750 (quoting warth v. seldin, 442 u.s. 490, 498 (1975)). 58  id. (quoting vander jagt v. o‟neill, 699 f.2d 1166, 1178 (d.c. cir. 1983)). 59  see, e.g., jonathan r. siegel, a theory of justiciability, 86 tex. l. rev. 73, 96. professor siegel states: allen v. wright is therefore representative of what might be called the ipse dixit version of the separation-of-powers theory of justiciability. the court appeals to an intuitive, incompletely articulated sense that because courts should play a limited role in a democratic society, whatever limits courts must be good and must protect us from excessive judicial power . . . . [h]owever, not every conceivable limitation on judicial proceedings can qualify as a constitutional purpose. we need some explanation 2011 columbia journal of race and law 130 injury-in-fact, causation, and redressability tied to limiting excessive power exercised by “activist courts”? plaintiffs who satisfy these requirements still can litigate important cases of national concern.60 by way of example, the court‟s infamous decision in the chinese exclusion case,61 which upheld racial immigration restrictions while establishing the “plenary power” doctrine, was perfectly justiciable, as were the court‟s decisions in other influential yet notorious cases such as dred scott v. sandford,62 lochner v. new york,63 and korematsu v. united states.64 the standing requirements also did not affect the court‟s ability to decide more recent cases of the utmost national importance, such as roe v. wade,65 griswold v. connecticut,66 lawrence v. texas,67 parents involved v. seattle,68 bush v. gore,69 or citizens united v. of why justiciability constraints are so critical to maintaining the proper limits on the judicial role. id. (emphasis added) (footnote omitted). 60  see, e.g., citizens united v. fed. election comm‟n, 130 s. ct. 876 (2010) (holding that capping corporate spending on political advertising violated the first amendment right to free speech); lawrence v. texas, 539 u.s. 558 (2003) (holding that a state statute criminalizing homosexual activity was unconstitutional under the due process clause of the fourteenth amendment); roe v. wade, 410 u.s. 113 (1973) (finding a protected liberty interest in a woman‟s right to choose to have an abortion and prohibiting state restrictions on that right prior to the third trimester); miranda v. arizona, 384 u.s. 436 (1966) (creating the now well-known “miranda rights” that criminal suspects must be apprised of when taken into custody); griswold v. connecticut, 381 u.s. 479 (1965) (finding a constitutional “right of privacy” and invalidating a state statute prohibiting the use of contraceptives as a violation of that right when applied to married couples); brown v. bd. of educ. of topeka, 347 u.s. 483 (1954) (holding that segregation of public schools violates the equal protection clause of the fourteenth amendment); korematsu v. united states, 323 u.s. 214 (1944) (upholding executive order 9066, which authorized the detention of japanese americans in internment camps during world war ii); lochner v. new york, 198 u.s. 45 (1905) (holding that a statute imposing a maximum weekly hour requirement violated the liberty interest in the “freedom to contract” in violation of the due process clause of the fourteenth amendment); chae chan ping v. united states (chinese exclusion case), 130 u.s. 581 (1889) (upholding an act of congress banning chinese immigration on the basis of the newly-formed “plenary power” doctrine); dred scott v. sandford, 60 u.s. 393 (1857) (holding that african americans are not citizens of the united states and thus have no right to sue in the federal courts). 61  chinese exclusion case, 130 u.s. at 599-600. 62  60 u.s. 393 (1857). 63  198 u.s. 45 (1905). 64  323 u.s. 214 (1944). 65  410 u.s. 113 (1973). 66  381 u.s. 479 (1965). 67  539 u.s. 558 (2003). 131 the first principles of standing vol. 1:1 federal election commission.70 all of these cases arguably satisfied the current tripartite standing test, and yet they are examples of judicial power affecting large segments of society. therefore, the argument that standing doctrine is necessary to maintain separation-of-powers seems belied by the inherent disconnect between standing‟s rigid requirements and the court‟s constitutional duty to decide important cases of national concern. 2. representational theories one classic defense of standing doctrine relies on the related argument that the standing requirements are necessary to ensure that the judicial process is controlled by plaintiffs with a sufficient stake in the litigation.71 by restricting relief to those persons most affected by the issues, the standing limitations serve the purpose of maintaining the intrinsic fairness of an adequately representative judicial process. as the court has explained: [t]he courts should not adjudicate such rights unnecessarily, and it may be that in fact the holders of those rights either do not wish to assert them, or will be able to enjoy them regardless of whether the incourt litigant is successful or not . . . . the courts depend on effective advocacy, and therefore should prefer to construe legal rights only when the most effective advocates of those rights are before them.72 the danger in allowing access to so-called “ideological” plaintiffs lies in the stare decisis effect of prior litigation. an ideological plaintiff, the argument goes, is more likely to frame a case broadly, which perhaps leads to a poor result that will be potentially binding 68  551 u.s. 701 (2007) (prohibiting the assignment of school seats based on race in order to achieve “racial balance” in public schools). parents involved will be discussed in greater detail, infra part iii.b. 69  531 u.s. 98 (2000) (overturning a florida supreme court decision and ordering the suspension of the vote recount during the 2000 presidential election). 70  130 s. ct. 876 (2010). 71  see sierra club v. morton, 405 us. 727, 731-32 (1972) (“the question of standing depends upon whether the party has alleged . . . a „personal stake in the outcome of the controversy‟ ”) (quoting baker v.carr, 369 u.s. 186, 204 (1962). 72  singleton v. wulff, 428 u.s. 106, 113-14 (1976) (citation omitted). 2011 columbia journal of race and law 132 on more traditional plaintiffs.73 allowing such unaccountable plaintiffs access to the federal courts, thus, would be unfair to genuinely interested plaintiffs, whose rights may be impacted negatively through the device of stare decisis.74 therefore, the standing requirements “reflect[] a due regard for the autonomy of those persons likely to be most directly affected by a judicial order.”75 there are a number of critical flaws with the representational defense of standing doctrine. initially, it is clear that the existing limitations on standing do not prevent litigation from potentially impinging on the rights of genuinely affected nonparties. a case brought by a traditional plaintiff will affect the rights of other genuinely interested parties76 in the same manner as a case brought by an “ideological” plaintiff. in both instances, the rights of nonparties will be affected through the mechanism of stare decisis. furthermore, there is no valid reason to believe that a traditional plaintiff would indeed tailor her litigation more craftily and narrowly than an ideological plaintiff. it is certainly possible, for instance, that a genuinely affected plaintiff may choose to follow a broadly framed, ideological litigation strategy that potentially would bind the rights of other nonparties. as professor jonathan siegel has observed, “the problem of interested parties who find their rights affected by litigation brought by others is simply intrinsic to our legal system [and] [t]he justiciability requirements do little to avoid it.”77 a second criticism of the representational defense observes that ideological plaintiffs are easily able to join a genuinely affected group of plaintiffs in litigation, notwithstanding the requirements of standing. plaintiffs who are deemed to have an ideological interest in a case according to the existing standing framework often can take steps to become interested parties under the eyes of the law. as professor cass sunstein documented long ago, an individual‟s 73  brilmayer, supra note 10, at 309 (noting “there are reasons to doubt whether self-appointed ideological plaintiffs should be presumed to be adequate representatives”). 74  id. 75  valley forge christian coll. v. am. united for separation of church & state, inc., 454 u.s. 464, 473 (1982). 76  brilmayer, supra note 10, at 306-10. 77  siegel, supra note 59, at 92. please review professor siegel‟s excellent article for an exhaustive examination and critique of the current theoretical justifications for the justiciability doctrines. 133 the first principles of standing vol. 1:1 preferences are rarely exogenous to the legal system.78 rather, an individual‟s desires and preferences are often “a function of legal rules,” shaped by the existing legal framework.79 in the case of standing, it is well-established that even so-called ideological plaintiffs can take strategic steps to ensure that the standing requirements are satisfied.80 one final criticism of the representational defense, and of standing doctrine more generally, deconstructs the seemingly brightline distinction between ideological and factual injuries. the historical shift in focus from legal injury to injury-in-fact requires courts to distinguish between purely “ideological” injuries and factual injuries. allegations of injury that are classified as ideological by a court are dismissed for lack of standing, while claims of injury that appear to be concrete and particularized readily pass constitutional muster.81 and yet to apply such a seemingly basic distinction, courts inevitably must rely on a normative toolbox of canons to ascertain what injuries should matter for article iii purposes. as professor sunstein explains: [t]here are reasonably well-established conventions on what counts as an injury, and these conventions tend to disguise the normative judgments and make them seem purely factual. but in every case, the person who brings a lawsuit believes that she has indeed suffered an injury in fact.82 the failings of theories based on notions of separation-ofpowers and representational democracy to adequately inform standing doctrine is not surprising given the law‟s inherent indeterminacy. the effort of reconciling the often conflicting and nonsensical standing decisions requires moving beyond classic constitutional theory and towards an acknowledgment of the role 78  see generally cass r. sunstein, legal interference with private preferences, 53 u. chi. l. rev. 1129 (1986). 79  id. at 1137. 80  see, e.g., siegel, supra note 59, at 93 (arguing that one reason “why the justiciability requirements do little to protect the „most affected‟ individuals is that ideological plaintiffs may take steps to join the affected group”); see also lujan v. defenders of wildlife, 504 u.s. 555, 579 (1992) (kennedy, j., concurring) (recognizing that the plaintiffs likely could have satisfied the standing requirements by taking the step of purchasing plane tickets or setting definite plans to travel). 81  see infra part iii. 82  sunstein, supra note 14, at 189. 2011 columbia journal of race and law 134 that ideology, race, and social inequality play in judicial decisionmaking. iii. the indeterminacy of standing doctrine the indeterminate nature of standing doctrine is welldocumented.83 scores of scholars have decried the incoherence and sophistry that dominate standing doctrine.84 it is claimed that standing law—and its „worthless generalizations‟85 —is but a tool for judges to “provide access to the courts to individuals who seek to further the political and ideological agendas of judges.”86 furthermore, standing doctrine is a “conceptual mistake”87 resembling a “word game played by secret rules.”88 empirical studies have borne out these intuitions, establishing that the law of standing is malleable and that outcomes are shaped by the ideological preferences of individual judges.89 the charge that the law itself is inherently indeterminate also necessarily informs our understanding of the ideological nature of standing law.90 the claim of indeterminacy extends from the 83  see, e.g., david n. cassuto, the law of words: standing, environment, and other contested terms, 28 harv. envtl. l. rev. 79 (2004); kenneth culp davis, standing: taxpayers and others, 35 u. chi. l. rev. 601 (1968); william a. fletcher, the structure of standing, 98 yale l.j. 221 (1988); elizabeth magill, standing for the public: a lost history, 95 va. l. rev. 1131 (2009); siegel, supra note 59; sunstein, supra note 14. 84  see supra note 83 and accompanying text. 85  ass‟n of data processing serv. orgs. v. camp, 397 u.s. 150, 151 (1970) (“generalizations about standing to sue are largely worthless as such.”). 86  pierce, supra note 2, at 1743. 87  sunstein, supra note 14, at 167. 88  flast v. cohen, 392 u.s. 83, 129 (1967) (harlan, j., dissenting). 89  see, e.g., fletcher, supra note 3, at 224-50; sunstein, supra note 14, at 168-97; pierce, supra note 2, at 1758-63; gene r. nichol, jr., standing for privilege: the failure of injury analysis, 82 b.u. l. rev. 301, 338-40 (2002); see also gregory j. rathjen & harold j. spaeth, denial of access and ideological preferences: an analysis of the voting behavior of the burger court justices, 1969-1976, w. pol. q., mar. 1983, at 71; c.k. rowland & bridget jeffery todd, where you stand depends on who sits: platform promises and judicial gatekeeping in the federal district courts, j. pol., feb. 1991, at 175; nancy c. staudt, modeling standing, 79 n.y.u. l. rev. 612 (2004) (acknowledging that standing decisions are often based on the judges‟ personal ideologies, yet arguing that standing doctrine is predictable when clear precedent and judicial oversight exist). 90  see, e.g., duncan kennedy, form and substance in private law adjudication, 89 harv. l. rev. 1685 (1976); david kairys, law and politics, 52 geo. wash. l. rev. 243 (1984); gary peller, the metaphysics of american law, 73 calif. l. rev. 1151 (1985); clare dalton, an essay in the deconstruction of 135 the first principles of standing vol. 1:1 classic realist critique that the law cannot be applied mathematically in a formalistic fashion, but rather is molded by complex social forces.91 it follows from this realist observation that legal rules rarely, if ever, dictate a particular result: “[l]egal reasoning is indeterminate and contradictory. by its own criteria, legal reasoning cannot resolve legal questions in an „objective‟ manner; nor can it explain how the legal system works or how judges decide cases.”92 the observation that traditional legal reasoning is subject to both the limits of language and the whims of judicial preference renders the law and legal theory “infinitely manipulable”93 and, thus, indeterminate.94 the purpose of this section, then, is to extend the indeterminacy critique by examining recent cases involving racial and class inequality in the affirmative action, desegregation, integration, and racial profiling contexts. situating the critique in the inequality context provides an opportunity to decode the values and principles influencing judicial decision-making through the use of a critical race methodology. for the purposes of the indeterminacy analysis, it is useful to break the case law discussion into two categories: (a) those cases involving alleged racial injuries to nonwhite plaintiffs, and (b) those cases involving alleged racial injuries to white plaintiffs. a doctrinal comparison of these cases demonstrates that the court adopts an unnecessarily narrow conception of injury and causation in racial claims of non-white plaintiffs, while alternatively applying an unnecessarily broad conception of injury and causation in cases involving the racial claims of white plaintiffs.95 a. of black injuries, desegregation, and profiling the law of standing has been remarkably consistent in its treatment of injuries by non-white plaintiffs in cases that implicate contract doctrine, 94 yale l.j. 997 (1985); joseph william singer, the player and the cards: nihilism and legal theory, 94 yale l.j. 1 (1984). see also supra note 1 and accompanying text. 91  see, e.g., cohen, supra note 8, at 812 (“valuable as is the language of transcendental nonsense for many practical purposes, it is entirely useless when we come to study, describe, predict, and criticize legal phenomena.”). 92  singer, supra note 90, at 6. 93  id. 94  id. at 24 (“[t]he legal theories advanced to justify our rules and institutions are indeterminate. the same theories could be used to justify very different sorts of institutions and very different rules.”). 95  the terms “racial claims” and “racial injuries” refer broadly to cases involving allegations of racial discrimination. 2011 columbia journal of race and law 136 racial inequality. in the desegregation, integration, and racial profiling contexts, the court has narrowly construed the concepts of injury, causation, and redressability to deny attempts to undermine the racial status quo. an early test of the court‟s modern standing framework involved litigation challenging exclusionary residential zoning practices. in warth v. seldin, various plaintiff groups challenged the zoning restrictions of the small upstate new york town of penfield.96 the plaintiffs—consisting of taxpayers, residents, lowincome individuals, and homebuilders—alleged that the zoning restrictions violated their constitutional rights by effectively excluding low-income, often non-white, persons from residing in the town.97 the court dismissed the plaintiffs‟ claims on standing grounds. first, the court rejected the taxpayer group‟s claim that the town‟s refusal to build low-income housing caused their neighboring town of rochester to provide more housing of that type, resulting in higher taxes for property owners.98 the court viewed this injury as merely “conjectural,” finding that “the line of causation between penfield‟s actions and such injury [was] not apparent from the complaint.”99 the court similarly dismissed the claims of the penfield residents, who argued that the town‟s exclusionary zoning policy deprived them “of the benefits of living in a racially and ethnically integrated community.”100 according to the court, the claimed injury was simply not judicially cognizable—even though a different set of plaintiffs prevailed on a very similar claim under the 1968 civil rights act in a previous case.101 the court also did not find the injury of the low-income set of plaintiffs—the inability to find affordable housing in penfield—to satisfy article iii, as the plaintiffs could not demonstrate “a substantial probability that they would have been able to” reside in penfield absent the zoning policy.102 finally, the court rejected the claims of the homebuilders on the grounds that the injury was prospective.103 96  warth v. seldin, 422 u.s. 490 (1975). 97  id. at 493. 98  id. at 496-97. 99  id. at 509. 100  id. at 512. 101  id. at 512-14 (distinguishing trafficante v. metro. life ins. co., 409 u.s. 205 (1972)). 102  id. at 504. 103  id. 137 the first principles of standing vol. 1:1 neither precedent nor the requirements of article iii, however, warranted the rigid interpretations of injury and causation adopted by the court in warth.104 the harms suffered by the warth plaintiffs could have been found justiciable if the court had followed its precedent in the trafficante case, which allowed standing based on injuries linked to the “benefits of interracial association.”105 the court‟s unnecessarily stringent view of causation in warth also has not comported with the court‟s other decisions on standing. in bennett v. spear, for instance, the court quite generously “presum[ed] the existence of injury-in-fact and causation based on the averments made in the complaint.”106 the allegations of harm and causation made in warth clearly could have been “presumed” sufficient under the lax framework employed in bennett.107 the court again adopted a harsh construction of the requirements of standing in allen v. wright.108 allen represents an effort to further the desegregation mandate of brown v. board of education109 by eliminating federal tax benefits to racially discriminatory private schools. following brown, scores of white parents pulled their children out of integrating public schools in order to enroll them in racially exclusionary private schools.110 while these private schools actively encouraged and benefited from “white flight,”111 the federal internal revenue service (“irs”) at the time nonetheless extended tax-exempt status to many such schools in contravention of its own stated policy.112 accordingly, a group of parents of black children enrolled in desegregating public schools filed a national class action suit against the irs. the court framed 104  see infra part iii.b; see also vill. of arlington heights v. metro. hous. dev. corp., 429 u.s. 252 (1977). 105  trafficante, 409 u.s. at 209-10. 106  see bennett v. spear, 520 u.s. 154, 168 (1997) (construing the allegations of injury and causation contained in the complaint to “presume” justiciability). 107  see id. 108  allen v. wright, 468 u.s. 737 (1984). 109  brown v. bd. of educ., 347 u.s. 483 (1954). 110  derrick a. bell, jr., brown v. board of education and the interestconvergence dilemma, 93 harv. l. rev. 518, 518 (1980). 111  viviva pierre & madeline herbert, beyond brown: louisiana lawyer discusses the east baton rouge desegregation suit and its relation to brown v. board of education, spectrum magazine, apr. 2004, at 15. 112  allen, 468 u.s. at 743. the court noted, “[t]he irs denies taxexempt status under §§ 501(a) and (c)(3) of the internal revenue code, 26 u.s.c. §§ 501(a) and (c)(3) . . . to racially discriminatory private schools.” id. at 740. 2011 columbia journal of race and law 138 the alleged injuries as consisting of (1) stigmatic harm and denigration due to the ongoing government aid provided to racially discriminatory schools, and (2) a diminished ability to receive an education in a racially integrated school.113 the court held that the first injury—which they alternatively interpreted as a request for the government to avoid violating the law—was not judicially cognizable based on precedent.114 according to the court, the plaintiffs had not adequately alleged a “concrete” injury since their children had never been excluded from any of the racially discriminatory schools. under this construction, the court would require parents to subject their children to racial exclusion from a private school before finding the existence of a sufficiently particularized injury-in-fact.115 the second injury alleged by the parents was also rejected as too “abstract” and “speculative” to satisfy article iii‟s rigid standing requirements.116 in particular, the court found it to be “entirely speculative” whether the remedy sought would “have a significant impact on the racial composition of the public schools,” and that the plaintiffs thus could not establish that the acts of the irs were fairly traceable to a diminished ability to attend a desegregated school.117 the injuries complained of in allen could have been found justiciable if the court adopted the broad construction of injury and causation applied in cases seeking to vindicate the interests of white plaintiffs to not be subject to race-conscious programs.118 the 113  id. at 754, 756. 114  id. at 755. 115  id. at 756 (the court believed that a finding of injury under the facts would “transform the federal courts into „no more than a vehicle for the vindication of the value interests of concerned bystanders.‟ ” (quoting united states v. scrap, 412 u.s. 669, 687 (1973))). 116  id. at 756, 758. 117  id. at 758-59. 118  see infra part iii.b; regents of univ. of cal. v. bakke, 438 u.s. 265 (1978) (holding that white medical school applicant granted standing did not have to establish that the affirmative action policy was the but-for cause of his denial of admission and that the state has a legitimate interest in considering race in admissions, but it must be narrowly tailored and only one of many factors in a competitive process); ne. fla. chapter of associated gen. contractors v. city of jacksonville, 508 u.s. 656 (1993) (where contractors association challenged city ordinance giving preference to minority-owned businesses, petitioner had shown injury-in-fact because of the city‟s imposed barrier to obtain a benefit and need not prove that it would have obtained the benefit but for the barrier); adarand constructors, inc. v. pena, 515 u.s. 200 (1995) (holding that plaintiff need not allege that it would have benefited but 139 the first principles of standing vol. 1:1 injury in allen, thus, could have been framed expansively as “the opportunity to have a desegregation process unaffected by unlawful incentives for white flight”119 by using the same contrived logic that buttresses the court‟s anti-affirmative action and desegregation cases.120 the court also has strictly interpreted the limits of the standing requirements in racial profiling cases. in city of los angeles v. lyons, the court dismissed a case seeking injunctive relief for injuries stemming from police misconduct.121 the dissent by justice marshall inimitably summarizes the unchallenged facts of the case: [adolph] lyons [an african-american male] was pulled over to the curb by two officers of the los angeles police department (lapd) for a traffic infraction because one of his taillights was burned out. the officers greeted him with drawn revolvers as he exited from his car. lyons was told to face his car and spread his legs. he did so. he was then ordered to clasp his hands and put them on top of his head. he again complied. after one of the officers completed a patdown search, lyons dropped his hands, but was ordered to place them back above his head, and one of the officers grabbed lyons‟ hands and slammed them onto his head. lyons complained about the pain caused by the ring of keys he was holding in his hand. within five to ten seconds, the officer began to choke lyons by applying a forearm against his throat. as lyons struggled for air, the officer handcuffed him, but continued to apply the chokehold until he blacked out. when lyons regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt. he had urinated and for the discriminatory classification that gave preference to minority-owned businesses to receive standing and that equal protection claims under both the fifth and fourteenth amendments require strict scrutiny analysis); gratz v. bollinger, 539 u.s. 244 (2003) (granting lead plaintiff standing because she had been denied undergraduate admission and holding that an admissions policy that made race the decisive factor was unconstitutional); see also parents involved in cmty. schs. v. seattle sch. dist. 1, 551 u.s. 701 (2007). 119  cass r. sunstein, standing injuries, 1993 sup. ct. rev. 37, 50 (1993). 120  see infra part iv.b. 121  city of los angeles v. lyons, 461 u.s. 95, 95 (1983). 2011 columbia journal of race and law 140 defecated. he was issued a traffic citation and released.122 notwithstanding the disturbingly routine nature of the case,123 the majority dismissed the action for lack of standing on the grounds that lyons could not demonstrate “a sufficient likelihood that [he] would again be stopped and subjected to the unlawful use of force to constitute a case or controversy.”124 the court simply could not fathom the “incredible assertion” that police officers might again racially profile and physically assault lyons sometime in the future.125 in the eyes of the majority, the injury claimed by lyons was too speculative to constitute a justiciable case or controversy.126 the harms arising from racial profiling, however, are clearly not “speculative” to the individuals who are the targets of such policies. such an indifferent understanding of the physical, emotional, and dignitary injuries suffered by non-white victims of 122  id. at 114-15 (marshall, j., dissenting). 123  see, e.g., david a. harris, the stories, the statistics, and the law: why “driving while black” matters, 84 minn. l. rev. 265, 277-85 (1999) (citing data from new jersey, maryland, and ohio that reveals the prevalence of racial profiling in traffic stops). specifically, harris refers to studies conducted by dr. john lamberth, which revealed that 73.2% of those stopped and arrested in new jersey were african american despite the fact that only 13.5% of the cars on the road had an african american driver or passenger. id. at 279 (citation omitted). similar studies in maryland and ohio have produced virtually indistinguishable results. id. at 280-85 (citations omitted). 124  lyons, 461 u.s. at 111. 125  id. at 106 (stating that they cannot agree that the “odds” that lyons not only would be stopped for a traffic violation again but also would be subjected to a chokehold without any provocation whatsoever are sufficient to make out a federal case for equitable relief). 126  the lyons case has not been the only case to rigidly interpret injury and causation in the racial profiling context. see, e.g., chavez v. ill. state police, 27 f. supp. 2d 1053 (n.d. ill. 1998) (dismissing racial profiling case brought by non-white motorists on the grounds that the injury was too speculative and that there was not a sufficient likelihood that the non-white motorists would be pulled over by the police again on the basis of race); kirkland v. morgievich, civ. no. 04-1651, 2005 u.s. dist. lexis 33808 (d.n.j. dec. 16, 2005) (same); see also curtis v. city of new haven, 726 f.2d 65, 68 (2d cir. 1984) (plaintiff lacked standing to challenge use of mace by police); davis v. city of aurora, 705 f. supp. 2d 1243 (d. colo. 2010) (plaintiff lacked standing to challenge racial profiling policy which led to unlawful detention); jones v. bowman, 664 f. supp. 433, 438-39 (n.d. ind. 1987) (holding that plaintiff lacked standing to enjoin police officers from performing strip searches); john does 1-100 v. boyd, 613 f. supp. 1514, 1529 (d. minn. 1985) (holding that plaintiffs lacked standing to challenge continuing practice of anal cavity searches of prisoners). 141 the first principles of standing vol. 1:1 police violence demonstrates the wholly subjective nature of the standing analysis. the court in lyons failed to recognize the extremely high incidence of racial profiling against minorities127 in its causation analysis, as well as the fact that “the use of racial profiling by law enforcement authorities in the united states has long been permitted and encouraged, if not expressly authorized, by u.s. constitutional law.”128 it seems that the injuries in lyons would have been regarded as justiciable had the court applied the more generous standing framework that it employed in other cases. the results in these three cases neither were predictable nor followed from reason based on the existing framework. the court‟s narrow interpretation of injury and causation in these cases runs counter to established precedent and indicates either outright disregard or contempt for the racialized injuries suffered by nonwhite plaintiffs. a doctrinal comparison of these outcomes to those in other cases involving the racialized injuries of white plaintiffs will illustrate further the indeterminacy of standing doctrine in racebased cases. b. of white injuries, innocence, and merit while the court has adopted a rigid interpretation of the requirements for standing in cases brought by non-white plaintiffs suffering injuries based on racial inequality, the court has relied on a much looser interpretation of injury and causation in cases brought by white “victims” of race-based remedial admissions, employment, and desegregation programs. the court‟s decision on standing in regents of university of california v. bakke129 paved the way for constitutional challenges to affirmative-action and other race-conscious remedial programs. in bakke, the plaintiff, alan bakke, challenged the affirmative action policy at the medical school of the university of california at davis. the court found the case to be justiciable, even though it was undisputed that bakke could not demonstrate that he would have been admitted to the school in the absence of the challenged 127  melissa whitney, the statistical evidence of racial profiling in traffic stops and searches: rethinking the use of statistics to prove discriminatory intent, 49 b.c. l. rev. 263, 264 (2008) (noting that bureau of justice statistics released in 2005 demonstrated that minority drivers were three times as likely as white drivers to be stopped by the police and searched). 128  kevin johnson, how racial profiling in america became the law of the land: united states v. brignoni-ponce and united states v. whren and the need for truly rebellious lawyering, 98 geo. l.j. 1005, 1006 (2010). 129  438 u.s. 265 (1978). 2011 columbia journal of race and law 142 policy.130 in fact, it was almost assured that bakke would not have been admitted to the school, regardless of the existence of the policy. the court acknowledged as much, noting that bakke‟s faculty interviewer had given him a very low interview score, and that his “application had come late in the year, and no applicants in the general admissions process with scores below 470 were accepted after bakke‟s application was completed [bakke had a score of 468].”131 nonetheless, the court determined that bakke‟s case satisfied the requirements of article iii standing. the court limited its analysis to a single footnote in a fractured plurality opinion.132 rejecting the contention from various amici that the case lacked standing due to bakke‟s admitted inability to establish either causation or redressability, the court broadly reframed the injury as being denied the abstract opportunity to “compete for all [of the available] places in the class, simply because of his race.”133 the decision to grant standing in this case, however, conflicted with the court‟s narrow construction of standing in its other cases. the court in bakke, for instance, relied on its recent decision in warth v. seldin as precedent for its holding on standing.134 however, as previously noted, the court in warth utilized a much narrower conception of injury-in-fact, causation, and redressability than it applied in the bakke case. the warth precedent alone indicates that the case should have been dismissed on standing grounds since bakke‟s injury was “conjectural,” and because the court itself acknowledged that bakke could not establish a causal link between his denial of admission and the race-based policy.135 bakke was clearly unable to demonstrate that there was “a substantial probability” of admission but for the race-based policy.136 the court in bakke, however, avoided this clear dictate of precedent by broadly interpreting the injury claimed by bakke. rather than frame the injury as being denied admission due to his race—which is how bakke framed the injury in his complaint—the court re-envisioned the injury as being forced to compete in a racebased application process. by doing so, the court was able to claim that the mere existence of such a race-based policy could give rise to 130  id. at 280 n.14 (stating “even if bakke had been unable to prove that he would have been admitted in the absence of the special program, it would not follow that he lacked standing”). 131  id. at 276-77. 132  see id. at 280 n.14 133  id. 134  id. (citing warth v. seldin, 422 u.s. 490 (1975)). 135  see id. at 270. 136  see id. 143 the first principles of standing vol. 1:1 an injury within the meaning of article iii.137 under the bakke construction of standing, “it seems sufficient that the plaintiff somehow believes that a program has harmed him, even if, in fact, it has not,” in order to establish a justiciable theoretical loss.138 after retreating to a narrower construction of injury in allen,139 the court reinvigorated its convoluted bakke logic to allow standing in a series of cases brought by white plaintiffs challenging affirmative-action policies intended to benefit underrepresented minorities. in both northeastern florida chapter of the associated general contractors v. city of jacksonville140 and adarand constructors, inc. v. pena,141 the court refused to require proof that the white plaintiffs would have been awarded construction contracts if the set-aside remedial programs did not exist. in fact, the lower court in northeastern dismissed the case on the grounds that the plaintiffs could not make such a showing,142 as past precedent required. in these cases, however, the court disingenuously sidestepped the demands of stare decisis by reconfiguring the claimed injuries as “being forced to compete in a race-based system.”143 once again, the harms alleged in these cases were merely theoretical and abstract—the type of “injuries” regularly held to be non-justiciable in other contexts. as professor nichol succinctly observes, “the court apparently thinks that concrete, particularized harm is less essential in cases alleging that government programs impermissibly benefit racial minorities. in such situations, rigorous standing requirements do not apply.”144 the court continued to display a sympathetically lenient view of standing in the seminal university of michigan affirmative action cases. in gratz v. bollinger, for instance, the court held that a prospective white student—patrick hamacher—had standing to 137  sunstein, supra note 14, at 203. 138  nichol, supra note 89, at 311. 139  see infra part iv.a. 140  508 u.s. 656 (1993). 141  515 u.s. 200 (1995). 142  ne. fla. chapter of associated gen. contractors of am. v. city of jacksonville, 951 f.2d 1217, 1219 (11th cir. 1992); see also warth v. seldin, 422 u.s. 490, 516-17 (1975); allen v. wright, 468 u.s. 737, 746 (1984); city of los angeles v. lyons, 461 u.s. 95, 111(1983). 143  ne. fla. chapter of associated gen. contractors of am., 508 u.s. at 656, 666 (an injury-in-fact exists “[w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group”). 144  nichol, supra note 89, at 311-12. 2011 columbia journal of race and law 144 challenge michigan‟s affirmative action policy.145 in seeking injunctive relief, precedent required hamacher to establish a “real and immediate” threat of a future injury.146 the majority found that hamacher had satisfied this requirement even though he never applied to transfer after being initially rejected.147 given the fact that hamacher had graduated already from a neighboring college, he lacked the intent to transfer to the university of michigan.148 thus, it would appear that the existing precedent and interpretation of the injury requirement would compel the court to find that hamacher‟s claim of future injury must be dismissed as conjectural and hypothetical.149 the court, however, gave short shrift to the clear deduction that hamacher lacked a “personal stake” in the outcome. rather, the court strangely reasoned that “whether hamacher „actually applied‟ for admission as a transfer student [was] not determinative” of the standing issue since hamacher may have possessed a past intent to apply to the college if the admissions policy was eliminated.150 the broad construction of injury and causation enjoyed by plaintiffs challenging affirmative action policies also has extended to white parents challenging public school desegregation plans. in parents involved in community schools v. seattle school district 1, the court entertained claims that the desegregation plans adopted by the seattle, washington, and louisville, kentucky, school systems violated the constitutional rights of white children denied admission to the public school of their future choosing.151 the desegregation plans in question allowed children to enroll freely in neighborhood schools without regard to race. the consideration of race became relevant only when a popular school became “oversubscribed” under the seattle plan or if a school became racially imbalanced under the louisville plan.152 the parents alleged an injury under these plans stemming from the possibility that their children someday would try to enroll in either an oversubscribed or a racially imbalanced school, and that those students may be denied admission based on race.153 145  539 u.s. 244, 260-61 (2003). 146  id. see also lujan v. defenders of wildlife, 504 u.s. 555, 560 (1992). 147  gratz, 539 u.s. at 260-61. 148  id. at 286 n.5 (stevens, j., dissenting). 149  id. see also lujan, 504 u.s. at 560. 150  gratz, 539 u.s. at 260-61. 151  551 u.s. 701 (2007). 152  id. at 710-11. 153  id. at 718. 145 the first principles of standing vol. 1:1 when the author of this article teaches standing to the students in his federal courts course, he often assigns a more detailed factual summary of the parents involved decision to use as a classroom exercise. the students invariably have concluded—based on their analysis of the seminal standing cases reviewed during the semester—that the plaintiffs in parents involved have not satisfied the standing requirements of article iii. these students—quite bright and engaged for their part—confidently proclaim that standing fails on these facts since the claimed injury is merely speculative and conjectural, in the same vein of the lujan and allen decisions. however, these students are quickly disabused of their enchantment for the law of standing when they are informed that the court found that this case satisfied the requirements for standing. relying on a very broad interpretation of the alleged injury, the roberts court found that the white parents had standing in parents involved. the injury, according to the court, remains even if the plaintiffs‟ children never decide to apply to a school subject to a desegregation plan, or even if those children apply but are not denied admission to the school of their choosing.154 thus, the court did not frame the injury as an actual or “real and immediate threat” of a denial of admission based on race.155 rather, the court relied on its past anti-affirmative action standing decisions to conceive of the injury broadly as “being forced to compete in a racebased system that may prejudice the plaintiff.”156 framed as such, the court found little trouble in identifying an injury sufficient for article iii purposes. the framework that the court established to adjudicate issues of standing does not readily explain or justify results in these cases. the analysis of standing in cases claiming racial harms to white plaintiffs suffers from an overly broad visualization of injuryin-fact, causation, and redressability. in contrast, the analysis of standing in cases presenting injuries to non-white plaintiffs challenging structures of racial inequality fails due to an unnecessarily narrow interpretation of the standing requirements. the indeterminacy plaguing standing doctrine, however, does not fully explain the court‟s protection of economic and racial privilege. 154  id. at 718-19. 155  see, e.g., allen v. wright, 468 u.s. 737, 758 (1984); lujan v. defenders of wildlife, 504 u.s. 555, 583 (1992). 156  parents involved, 551 u.s. at 719 (citing adarand constructors, inc. v. pena, 515 u.s. 200, 212 (1995) and ne. fla. chapter of associated gen. contractors of am. v. city of jacksonville, 508 u.s. 656, 666 (1993)). 2011 columbia journal of race and law 146 iv. the first principles of modern standing doctrine the failure of structural theories of justiciability to give purpose and meaning to the law of standing, coupled with the doctrine‟s remarkable indeterminacy, inexorably leads to one question: what is guiding the content of standing jurisprudence? phrased differently, what are the social forces, values, and principles that influence judicial decision-making on standing issues? as has been discussed, the court‟s standing jurisprudence indicates hostility to the rights and injuries of non-white plaintiffs, while displaying sympathy for the rights and injuries of white plaintiffs. as professor nichol observes: minority plaintiffs, poor litigants, unwed mothers, black prisoners, and indigent patients get the harshest treatment in injury law. their burdens are higher, their barriers more substantial. they must prove greater consequential harms, must show closer causation links, and must surmount greater redressability hurdles. article iii determinations are driven neither by text nor history. they favor the powerful. they disadvantage the powerless. and in the process, they don‟t explain why they do so.157 the one predictable aspect of the court‟s standing doctrine thus appears to be the protection of racial and economic privilege.158 a. social justification theory, privilege, and threats to the status quo the conclusion that standing doctrine submits to the demands of privilege is supported by the findings of social psychology. system justification theory (“sjt”), a well-respected and empirically-tested field of social psychology, posits that “people are motivated to accept and perpetuate features of existing social arrangements, even if those features were arrived at accidentally, arbitrarily, or unjustly.”159 the central premise of sjt therefore follows the classic marxian view that members of the elite class have 157  nichol, supra note 89, at 333. 158  see id. 159  gary blasi & john t. jost, system justification theory and research: implications for law, legal advocacy, and social justice, 94 calif. l. rev. 1119, 1124 (2006). 147 the first principles of standing vol. 1:1 an ideological interest in preserving current social structures.160 while members of the subordinated class have an interest in subverting the social system, this interest is sublimated by an internalized “false consciousness” that cloaks inequality while legitimizing the status quo.161 sjt incorporates these insights in an effort to analyze the social tendency to rationalize the status quo and perceive existing legal, social, economic, and political arrangements as “fair and legitimate.”162 according to numerous empirical studies, individuals are motivated to justify the status quo for several reasons, including a “cognitive-motivational need to believe in order, structure, closure, stability, predictability, consistency, and control.”163 additionally, studies have demonstrated that “there are social norms that serve to uphold system-justifying responses and punish system-challenging responses.”164 those daring few who challenge system expectations and stereotypes are met with public backlash and ridicule.165 the tendency to engage in system-justification depends, to varying degrees, on both situational and dispositional factors.166 these tendencies will be activated to the extent that a person feels the need to reduce uncertainty and system threat, or when the status quo is directly or indirectly challenged.167 perhaps unsurprisingly, studies in sjt have demonstrated that individuals with conservative 160  see generally anthony paul farley, the colorline as capitalist accumulation, 56 buff. l. rev. 953 (2008). 161  see generally id. 162  john t. jost & orsolya hunyady, antecedents and consequences of system-justifying ideologies, 14 current directions in psychol. sci. 260, 260 (2005). 163  aaron c. kay et al., panglossian ideology in the service of system justification: how complementary stereotypes help us to rationalize inequality, 39 advances in experimental soc. psychol. 305, 308 (2007). 164  id. 165  id. (citing studies). 166  john t. jost et al., system justification as conscious and nonconscious goal pursuit, in handbook of motivation science 591, 592 (james y. shah & wendi l. garner eds., 2008) [hereinafter jost et al., goal pursuit]. see also blasi & jost, supra note 159, at 1138; john t. jost et al., shared reality, system justification and the relational basis of ideological beliefs, 2 soc. & personality psychol. compass 171, 172 (2007) (“[p]eople defend and bolster the legitimacy of the societal status quo following exposure to various manipulations of system threat, including exposure to . . . crises of legitimacy or stability in society.”). 167  see blasi & jost, supra note 159, at 1123. 2011 columbia journal of race and law 148 viewpoints are more likely to express system-justifying attitudes than individuals with a self-described progressive or liberal viewpoint.168 the appeal of system justification is straightforward: it provides a coping mechanism for persons confronted with systemic inequality by „reducing anxiety and uncertainty.‟169 this finding is similar to the psychological concept of “cognitive dissonance,” which holds that people suffer from psychological tension when confronted with ideas that conflict with their own beliefs.170 as the author of this article has stated previously in the reparations context: “confronting privilege creates cognitive dissonance by acknowledging that benefits and advantages received were not necessarily the result of merit and hard work, while exposing the deeply held values that have supported privilege.”171 indeed, the “potential psychic damage to privilege holders forces most to ignore and suppress alternative explanations for their status that depart from the assumption of naturalness and neutrality.”172 therefore, holders of privilege have a strong motivation to express systemjustifying attitudes, as “[a]cceptance of traditional distinctions tend to reduce cognitive dissonance.”173  the palliative function of system justification that sjt identifies thus maps neatly onto the critical observation of the role that cognitive dissonance plays in the maintenance of privilege.174 studies in sjt also have established that individuals faced with system threat “may not even be aware of the extent to which 168  id. at 1126. 169  id. at 1141. 170  see generally leon festinger, a theory of cognitive dissonance (1957). 171  christian b. sundquist, critical praxis, spirit healing and community activism: preserving a subversive dialogue on reparations, 58 n.y.u. ann. surv. am. l. 659, 675-76 (2003). 172  peggy mcintosh, white privilege and male privilege: a personal account of coming to see correspondences through work, in women‟s studies, in power, privilege and law: a civil rights reader 22, 23 (leslie bender & dana braveman eds., 1995). see also james thuo gathii & greg mandel, cost-benefit analysis versus the precautionary principle: beyond cass sunstein’s laws of fear, 2006 u. ill. l. rev. 1037, 1049 n.53 (2006) (noting that the presence of cognitive dissonance encourages people to take steps to eliminate the psychological conflict, often by changing their preferences or beliefs). 173  sunstein, supra note 78, at 1147. 174  the palliative function of system justification “provides a simple and easy way of meeting a variety of psychological needs. threats to the legitimacy or stability of the system, on the other hand, may elicit feelings of anxiety, uncertainty, and dissonance concerning one‟s role in the larger system.” jost et al., goal pursuit, supra note 166, at 598. 149 the first principles of standing vol. 1:1 they are privileging the status quo and resisting change.”175 such attitudes are “especially likely to be manifested implicitly rather than explicitly” given that “some forms of system justification efforts are not normatively acceptable, such as stereotyping of and discrimination against low-status groups.”176 the conclusion that system-justifying attitudes are often unconsciously expressed tracks the critical observation that discriminatory racial attitudes are often the product of unconscious processes.177 b. from the descriptive to the normative: sjt, critical theory, and the law of standing the insights provided by sjt are invaluable to understanding the indeterminacy that has come to define standing doctrine. the concepts within sjt provide the necessary empirical tools to deconstruct and analyze the privileging effects of standing law. the subjective structure of standing law encourages the expression of system-justifying attitudes and norms, and it also accounts for the varying interpretations of injury, causation, and redressability adopted by the supreme court. the issues of racial and economic inequality faced by the court, including affirmative action, desegregation, integration, and racial profiling, surely qualify under sjt as actual or perceived “system threats” challenging the status quo. the court‟s antiaffirmative action and desegregation jurisprudence provides a salient example. the policies involved in those cases posed threats to the legitimacy of the system by exposing pervasive inequality and discrimination in the distribution of resources, education, and employment. these situational antecedents can in turn trigger a cognitive-motivational need to utilize system-justifying schemas— such as meritocratic, fair market, or “social dominance” 175  jost et al., goal pursuit, supra note 166, at 596 (citing “several studies” that have confirmed the “unconscious operation of system-justifying biases”). 176  id. 177  see, e.g., charles lawrence, the id, the ego, and equal protection: reckoning with unconscious racism, 39 stan. l. rev. 317, 322 (1987) (“traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional—in the sense that certain outcomes are self-consciously sought—nor unintentional—in the sense that the outcomes are random, fortuitous, and uninfluenced by the decisionmaker‟s beliefs, desires, and wishes.”); donna young, racial releases, involuntary separations, and employment at will, 34 loy. l.a. l. rev. 351, 398 (2001) (noting that “the courts have been unable to properly address the „unconscious‟ component of racism”). 2011 columbia journal of race and law 150 ideologies—in order to justify inequality and rationalize the status quo.178 exposure to such system distortions can lead to tears in the shroud of false consciousness that can be mended only through rationalization of existing inequality and resistance to changes in the status quo.179 these psychological processes often—but certainly not always—occur at an unconscious level. they can lead decision makers to suppress alternative explanations of inequality that conflict with their particular worldview in order to avoid the psychic pain of recognizing privilege. in particular, studies have demonstrated that the process of rationalization is often marked by the tendency to “accept meritocratic explanations for inequality and to blame individuals rather than systems for the existence of poverty.”180 the reduction of cognitive dissonance is enabled by the indeterminate nature of the standing requirements. as we have seen, the determination of injury, causation, and redressability are “normative endeavors,” informed by the “sense of unity and identity” of the decision maker.181 a recognition of the language of “transcendental nonsense”182 employed by the court in its standing decisions accounts for the hostility shown to injuries claimed by non-white plaintiffs challenging racial inequality. the court simply cannot empathize with injuries and claims that conflict with its colorblind view of the world. the court‟s narrow construction of injury, causation, and redressability in these cases alleviates the psychological distress caused by its being confronted with images of privilege and inequality. simply put, the court finds solace in viewing challenges to racial hierarchy as fantastical conjecture having little bearing to “real-world” injuries-in-fact. for example, the harms alleged by the plaintiffs in lyons posed a strong threat to the status quo appearance of race neutrality 178  see jost & hunyady, supra note 162, at 260-61. 179  id. 180  tom r. tyler & john t. jost, psychology and the law: reconciling normative and descriptive accounts of social justice and system legitimacy , in social psychology: handbook of basic principles 816 (a.w. kruglanski & e.t. higgins eds., 2007) (citations to corroborating studies omitted). the reduction of cognitive dissonance also is often accompanied by a belief in freemarket ideology and the perception that market-based outcomes are efficient and fair. id. 181  see, e.g., joseph vining, legal identity: the coming age of public law 171 (1978); fletcher, supra note 3, at 221-23 (1988); nichol, supra note 89, at 322-24. 182  see cohen, supra note 8, at 812. 151 the first principles of standing vol. 1:1 by exposing widespread practices of racial profiling.183 a recognition of these injuries as “real” and “concrete” conflicted with the court‟s belief in colorblindness and equal opportunity—that law-abiding individuals are generally treated equally by law enforcement, without regard to race.184 in other words, it conflicted with the belief, that the system is just and fair, and that racism is a mere aberration rather than a systemic flaw.185 the court resolved the cognitive dissonance created by this ideological conflict by narrowly construing the standing requirements as preventing “speculative” allegations of systemic failure.186 to view pervasive racism and police mistreatment of black men as a speculative and “discrete practice” is to view racial discrimination as aberrational and non-threatening to the status quo. the system justification discourse on standing doctrine also explains why the court is willing to embrace cases brought by white plaintiffs seeking to maintain the status quo of race neutrality and professed post-racialism. the court reduces the cognitive costs implicit in any confrontation of privilege by striking down raceregarding measures in the name of equal opportunity, meritocracy, and colorblindness. rationalization of the status quo leads to empathy for members of the dominant group, whose allegations of injury are re-interpreted by the court as efforts to dispel threats to the status quo. therefore, the court invokes the systemmaintaining ideologies of equal opportunity, colorblindness, white innocence, meritocracy, and individualism to inform its standing analysis, as well as to rationalize the conclusion that otherwise speculative and hypothetical injuries satisfy the justiciability requirements. for instance, the court‟s decisions in bakke and parents involved clearly demonstrate the court‟s readiness to act on system justification motives in order to protect the status quo. the plaintiff in the bakke case sought to eliminate a serious threat to the system—race-regarding admission policies that sought to remedy current and past discrimination and stem the rising tide of inequality. the affirmative action policy at issue conflicted with numerous 183  city of los angeles v. lyons, 461 u.s. 95, 98 (1983). 184  see id. at 108 (holding that “it is untenable to assert, and the complaint made no such allegation, that strangleholds are applied by the los angeles police to every citizen who is stopped or arrested regardless of the conduct of the person stopped”). 185  richard delgado & jean stefancic, critical race theory: an introduction 7 (2001) (noting that a basic tenet of critical race theory is that “racism is ordinary, not aberrational”). 186  lyons, 461 u.s. at 109. 2011 columbia journal of race and law 152 “system-justifying ideologies,”187 such as a belief in meritocracy,188 individualism, a fair market,189 natural economic and racial inequality,190 colorblindness, equal opportunity, and social dominance.191 as noted earlier,192 it was undisputed in bakke that the plaintiff could not demonstrate that he would have been admitted to the medical school at uc-davis but for the existence of the remedial admissions policy.193 despite the speculative and hypothetical nature of bakke‟s “injury,” which otherwise the court would have deemed as non-justiciable under precedent, the court sympathized with the discrimination facing “disadvantaged whites”194 and permitted the attempt to preserve the status quo. the court rationalized its finding of standing by re-framing the injury as a threat to the status quo of equal opportunity.195 the seemingly benign framework of equal opportunity was invoked by the court as an antecedent to system justification.196 as the author of this article has contested previously, the story of equal opportunity [holds that] the paradigm of equal opportunity is a truly objective, neutral, and fair method to allocate educational, employment, and political resources to members of society, without regard to race, class, gender, or ethnicity. the ideal of equality assumes the possibility of an objective measure of merit under which individuals‟ abilities and performances may be evaluated. accordingly, through the creation of a baseline that presupposes the inherent sameness of all people and disregards systemic discrimination as a fallacy, any social and economic inequality that exists is said to be legitimate because it 187  jost & hunyady, supra note 162, at 261 tbl.1. 188  id. (belief that “[t]he system rewards individual ability and motivation, so success is an indicator of personal deservingness”). 189  id. (belief that “[m]arket-based procedures and outcomes are not only efficient but are inherently fair, legitimate and just”). 190  id. (belief that “[e]conomic inequality is natural, inevitable, and legitimate; economic outcomes are fair and deserved”). 191  id. (belief that “[s]ome groups are superior to others; group-based hierarchy is a good thing”). 192  see supra part iii.b. 193  regents of univ. of cal. v. bakke, 438 u.s. 265, 267-77 (1978). 194  id. at 276. 195  see id. at 280, n.14 (reframing the injury as being denied the opportunity to “compete for all . . . places in the class, simply because of his race”). 196  see jost & hunyady, supra note 162, at 261. 153 the first principles of standing vol. 1:1 purportedly reflects the natural results of deficient personal choices.197 in using the rhetoric of equal opportunity, the court‟s reframing of the injury is a veiled attempt to preserve existing patterns of inequality.198 the court uses ideological language to translate the injury from one involving a mere denial of admission to one implicating the fairness of the social system as a whole. the former injury was clearly conjectural, yet the latter framing of the injury appeared to the court to constitute a real and concrete threat to the status quo. the court found standing through a process of rationalization in its effort to ease the guilty pangs of conscience that comes with viewing inequality. the court‟s decision in parents involved199 similarly relied on system-justifying ideologies to uphold standing by broadly reframing the alleged injuries. the plaintiffs in that case sought to undo the desegregation plans adopted by schools in racially segregated cities. the alleged injury was clearly speculative and conjectural under precedent. it merely alluded to the possibility that the plaintiffs‟ children may someday try to enroll in the desegregating schools, and that those students may also be denied admission under the plan.200 however, the court viewed these harms as threats to the status quo and its underlying ideologies of individualism, colorblindness, and meritocracy. the court was enamored with individual stories of “white innocence” and equal opportunity during its analysis201 and 197  christian b. sundquist, equal opportunity, individual liberty, and meritocracy in education: reinforcing structures of privilege and inequality, 9 geo. j. on poverty l. & pol‟y 227, 228-29 (2002). 198  id. at 229. (“i disagree with the conception of equal opportunity as an objective, neutral, natural, and fair principle that enables social minorities to progress in society, limited only by their own ability and free choices. rather, equal opportunity is an intricate fabrication intended to preserve the status quo and language of the dominant culture through reliance on popular, yet mythical, norms of individualism, sameness, and neutrality.”). 199  parents involved in cmty. schs. v. seattle sch. dist. 1, 551 u.s. 701 (2007). 200  id. at 718-19. the “complaint sought declaratory and injunctive relief on behalf of parents involved members whose elementary and middle school children „may be denied admission to the high schools of their choice when they apply for those schools in the future.‟ ” id. at 718 (emphasis added). the court still granted standing, finding that “[t]he fact that it is possible that children of group members will not be denied admission to a school based on their race . . . does not eliminate the injury claimed.” id. at 718-19. 201  see supra note 200 and accompanying text. professor thomas ross has argued that concepts of white innocence, even if unintentional, pervade the american court system as exemplified by legal rhetoric affording 2011 columbia journal of race and law 154 strove to find a way to uphold the “private choices” of white parents to live in racially segregated neighborhoods.202 using system-justifying ideological tools, the court reframed the claimed injury as a response to the systemic threat of desegregation.203 c. the first principles of standing law the law of standing appears to be intelligible only through the schema of privilege. the tripartite standing framework developed by the court is an attempt to demarcate the often times nebulous space between ideological discourse and objective legal thought. the legitimacy of standing law derives in part from a denial of the political contingency of the representational metaphors upon which it relies.204 the interpretation of the injury-in-fact, causation, and redressability tropes is inevitably value-laden, normative, and system-justifying. the foundational first principles of standing doctrine thus are characterized by a belief in the legitimacy and fairness of the existing distribution of social resources: 1) perpetuation of the existing structures of racial, economic, and social privilege in maintenance of the status quo, and 2) distortion and rationalization of images of inequality through the use of metaphorical ideological devices. recognition of these foundational principles provides an unfortunate determinacy to the law of standing that was previously whites a lack of culpability and simultaneously abstracting black disadvantage to an impersonal level, thereby denying the full humanness of blacks. thomas ross, the rhetorical tapestry of race: white innocence and black abstraction, 32 wm. & mary l. rev. 1, 3-4 (1990). 202  parents involved, 551 u.s. at 736 (“where resegregation is a product not of state action but of private choices, it does not have constitutional implications.”) (quoting freeman v. pitts, 503 u.s. 467, 495 (1992)). 203  see id. at 719 (“[o]ne form of injury under the equal protection clause is being forced to compete in a race-based system that may prejudice the plaintiff, an injury that the members of parents involved can validly claim on behalf of their children.”) (internal citations omitted). 204  professor gary peller observes that “[l]egal thought distinguishes from open-ended ideological discourse by implicitly denying the contingency of the representational metaphors, such as the public/private or fact/value distinctions, on which its persuasiveness depends. when these background structures are taken as that „which goes without saying,‟ they work as metaphysical assumptions about the world.” peller, supra note 1, at 1154. 155 the first principles of standing vol. 1:1 lacking and which could not be accounted for by the traditional normative justifications for standing doctrine. the guiding principles of standing law are granted normative power through the invocation of various system-justifying modalities:  individualism and the reification of private rights, equal opportunity and the victimology of white innocence, colorblind constitutionalism and post-racialism, and meritocracy and free market ideology.205 there is an additional limitation on standing law, which is based on the principle that the process of system justification will not be activated if it is within the interest of the dominant social group to redefine the status quo.206 this limitation on standing doctrine tracks both the psycho-legal concept of “interest convergence” and sjt‟s theory of “inevitable change.” the concept of “interest convergence” was first developed by professor derrick bell and posits that the interests of the subordinated class in reducing or eliminating inequality will be accommodated only when they converge with the interests of the elite class.207 this theory is similar to sjt‟s finding that system justification tendencies are avoidable if a change in the status quo appears to be inevitable.208 as professor jost notes, “[a]lternatives to the status quo may be derogated when they are considered improbable, but they may become much more attractive as their probability of success increases.”209 a basic formula can describe the interplay between the concepts. the likelihood of a judge expressing system-justification tendencies in order to preserve the status quo condition of privilege (lp) depends on an assessment of the judge‟s level of cognitive dissonance (cd) balanced against the persuasive power of the alternative account for inequality (aa). breaking down the components further, 205  see generally jost & hunyady, supra note 162, at 261. 206  see infra part iii. 207  see generally derrick bell, faces at the bottom of the well: the permanence of racism (1993). 208  see jost et al., goal pursuit, supra note 166, at 600. 209  id. 2011 columbia journal of race and law 156 lp (likelihood of preserving privilege) = cd (level of cognitive dissonance) [perceived system threat (t) + dispositional need for structure and order (n)] / aa (persuasive power of the alternative account) [level of interest convergence (ic) + perceived inevitability of system change (pi)], or the above formulaic expression of the likelihood of a court expressing system justifying attitudes is not a backdoor attempt to resurrect a new legal formalism.210 rather, a visual account of the various factors that are relevant to system justification helps to clarify the steps that can be taken to reduce or eliminate the propensity of judges to shape their decisions in an effort to protect the status quo. advocates could attempt to downplay the court‟s perception of system threat (t) in a given case. advocates could try to persuade a court of the inevitability of system change (pi), arguing that it is within the interest of the dominant group to redefine the status quo (ic). however, it is unrealistic that advocates could achieve substantive change by playing within the rules of a hopelessly flawed legal framework. v. beyond the “transcendental nonsense” of standing the failings of standing doctrine cannot be resolved by modifying the existing framework, redefining terminology,211 focusing on legal injury rather than factual injury,212 making a 210  see, e.g., thomas c. grey, langdell’s orthodoxy, 45 u. pitt. l. rev. 1, 13 (1983) (recounting christopher columbus langdell‟s view of law as a science). 211  see susan bandes, the idea of a case, 42 stan l. rev. 227, 230 (1990) (arguing that standing law should shift from an individualistic, private rights model to a public law model that focuses on adjudicating constitutional questions). 212  sunstein, supra note 14, at 166 (arguing that the “relevant question is [not whether there was an “ „injury-in-fact,‟ but] whether the law—governing cd (t + n) aa (ic + pi) lp 157 the first principles of standing vol. 1:1 distinction between private and public rights,213 instituting a presumption favoring the plaintiff‟s claim of injury,214 or relaxing the requirement of injury-in-fact.215 the convoluted doctrine that evolved from the court‟s disingenuous interpretation of “case” or “controversy” must be forsaken completely. merely modifying the requirements of standing will do little to guard against privilege and political decision-making. instead, the entire language of standing must be removed from the judicial toolbox. a number of well-regarded academics have suggested altering the framework to account for privilege by creating a presumption in favor of standing.216 this proposal would eliminate the existing set of standing rules, requiring only that the plaintiff demonstrate a “real adversity” with the defendant and a reasonably “concrete” factual record.217 a court still would be able to deny standing in certain situations, when “strong reasons are brought to bear against its exercise.”218 according to its proponents, the benefits of this approach lie in its potential to restrain ideological decision-making through a relaxation of the injury-in-fact requirement.219 while the privilege-constraining aims of this approach are certainly laudable, it does not appear that this modified standing test would do much to eliminate ideological decision-making. the “presumption” approach does not address the psychological triggers of system-justifying judicial behavior, nor does it remove the use of statutes, the constitution, or federal common law—has conferred on the plaintiffs a cause of action”); see also fletcher, supra note 3, at 812. 213  f. andrew hessick, standing, injury in fact, and private rights, 93 cornell l. rev. 275, 275 (2008) (“[r]equiring a showing of factual injury in private rights cases is ahistorical and actually undermines the separation of powers by preventing the courts from guarding rights and by limiting congress‟s powers to create rights.”). 214  nichol, supra note 89, at 338, 339-40 (arguing that “[t]he injury inquiry should embrace a significant presumption in favor of the plaintiff‟s claim of harm”). 215  siegel, supra note 59 (advocating for a reform of standing law by relaxing standards). 216  mark v. tushnet, the sociology of article iii: a response to professor brilmayer, 93 harv. l. rev. 1698, 1705-07 (1980); nichol, supra note 89, at 305, 339. 217  tushnet, supra note 216, at 1706. 218  nichol, supra note 89, at 339. 219  id. (“a generous predisposition towards finding injury would also go far to dismantle the artificial categories of injury that have rendered the court‟s standing jurisprudence one of the most manipulated, result-oriented arenas of constitutional law.”). 2011 columbia journal of race and law 158 ambiguous standards and language from the standing calculus. how does one decide which cases satisfy the presumption and which do not? what guidelines should a court apply in determining whether to invoke the discretionary exception to reject standing? under this approach, it is easy to envision the possibility of ideologically-based denials of standing on the purported grounds that the plaintiffs failed to proceed either because they failed to generate a sufficiently “concrete” factual record or because “strong policy reasons” militate against standing.220 by exchanging one malleable standard for another, the proposal merely changes the language used to rationalize decisions on standing that privilege white victims. another notable approach to standing reform argues that the issue of standing should be linked to the substantive merits of a case.221 relying on observations that the current standing framework is a mere proxy for the court‟s ideological view of the merits of a case, the “substantive” approach argues that the test for standing instead should be based entirely on the presence of a judicially-cognizable legal injury.222 in particular, this approach advocates that the courts should defer to congressional determinations of statutory standing.223 the proposal acknowledges that a substantive test for standing will not eradicate political decision-making completely, 224 but that this approach would reduce the potential for judicial mischief by barring courts from making normative-based standing decisions. the substantive approach ties the standing analysis to the presence of substantive constitutional, statutory, and common-law rights. this proposal suffers from the familiar failings of normative interpretation and linguistic ambiguity. by linking standing to the determination of substantive rights, the proposal merely replaces 220  see staudt, supra note 89, at 672-73. professor staudt relies on empirical data to conclude that the presumption approach to reform would not constrain political decision-making in the standing context. 221  see fletcher, supra note 3, at 223; cass r. sunstein, informational regulation and information standing: atkins and beyond, 147 u. pa. l. rev. 613, 616-17 (1999). 222  fletcher, supra note 3, at 229 (arguing that the question of whether a plaintiff has a “legal right to judicial enforcement of an asserted legal duty . . . should be seen as a question of substantive law”). 223  sunstein, supra note 14, at 191 (“whether an injury is cognizable should depend on what the legislature has said”). 224  cf. sunstein, supra note 221, at 616-17 (arguing that, with respect to cases involving standing to obtain information, “the question of standing is for congressional rather than judicial resolution . . . . if congress creates a legal right to information and gives people the authority to vindicate that right in court, the standing question is essentially resolved.”). 159 the first principles of standing vol. 1:1 one kind of indeterminacy with another. the interpretation of constitutional and statutory substantive rights has long been rife with inconsistency and normativity. the tremendous judicial discretion involved in the analysis of constitutional and statutory language gives rise to ideological game-playing and system rationalization. the interpretation of language deemed to be “ambiguous” is often dependent on the application of contested and conflicting canons of construction, which themselves often represent a particular ideological position. even when the law is not ambiguous, courts often find reason to go beyond the plain meaning of language in order to advance a particular political agenda.225 as professor staudt has noted, “[d]eferring to substantive law . . . does not foreclose judicial discretion.”226 by relying on a false substantive-procedural distinction, the substantive approach simply does not lead us out of the mire of incoherence. if the principal reform proposals are lacking, then how should we change the law to account for its tendency to promote privilege normatives? how can we modify the law to reduce or eliminate the system-justifying tendencies of judges? the answer lies in not merely changing the standing inquiry, but in eliminating it altogether. standing doctrine is mandated neither by the text nor the history of article iii. it consists of a subjective set of criteria that can be manipulated by perceptions of system threat to rationalize inequality and deny access to justice to those at the “bottom of the well.”227 the law of standing cannot be modified to eliminate privilege, as the language of access necessarily is imbued with political meaning. the words and phrases used to convey the notion of standing—whether in its original or reformed position— are infinitely malleable and veil the operation of privilege. the privileging aspects of standing are rarely recognized or “seen” by the courts, as privilege itself is shaped by societal norms deemed neutral and objective by the dominant group. the law of standing nonetheless serves to normalize privilege and rationalize existing social inequality. 228 thus, the concept of standing must be discarded in its entirety. 225  for instance, consider the “cases” and “controversies” language of article iii. see u.s. const. art. iii. the language can be given a clear and unambiguous interpretation that does not give rise to a constitutional requirement of standing. 226  staudt, supra note 89, at 680. 227  bell, supra note 207. 228  stephanie m. wildman & adrienne d. davis, making systems of privilege visible, in privilege revealed: how invisible preference undermines america 7-24 (stephanie wildman et al. eds., 1996) (arguing 2011 columbia journal of race and law 160 vi. conclusion professor derrick bell once implored that we should look to “the bottom of the well” in judging law: if a law does not benefit the most disadvantaged of society, it should be rejected.229 accordingly, the law of standing should be rejected. standing requirements only serve to rationalize existing inequality while masking the reproduction of privilege.  the evaluation of redressable legal injuries is necessarily a value-laden and subjective process, which is influenced by the social position, past experiences, and worldview of individual judges. the court has demonstrated, in the affirmative action and desegregation contexts, a willingness to wield the submissive sword of standing to cut down threats to the status quo and privilege. as the empirical findings of system justification theory demonstrate, the court often invokes the law of standing to rationalize and normalize system-justifying responses to perceived system threats. the court denies standing routinely in cases advancing the rights of non-white plaintiffs, as the court myopically sees the injuries claimed as too speculative and disconnected from the experiences of individual justices to qualify for judicial review under article iii.230 conversely, the court strains to locate “injuries” in cases involving the racialized claims of white plaintiffs, even when such claims would seem to be insufficient for article iii review under prior case law.231 therefore, the law of standing, for these and other reasons, is widely acknowledged as being hopelessly incoherent. the infamous indeterminacy of standing law, however, can be provided some coherence once it is acknowledged that judicial decisionmaking is heavily influenced by perceived threats to the racial status quo. the court‟s standing jurisprudence in cases involving racial injuries is therefore determinable and predictable not by precedent or the language of article iii, but by the nature and extent of the perceived system threat. to put it bluntly, the court is as likely to minimize the injuries of plaintiffs seeking to challenge racial inequality, as it is to generously construe the injuries of plaintiffs seeking to preserve existing structures of racial hegemony (e.g., segregation, discrimination, profiling). that privilege appears as part of the normal fabric of daily life and becomes a world to which those without privilege must adjust.). 229  see generally bell, supra note 207. 230  see supra part iii.a. 231  see supra part iii.b. 161 the first principles of standing vol. 1:1 reform proposals focused on massaging the language of standing requirements, while nonetheless retaining “standing” as a limit to justiciability, are not sufficient to mediate the systemjustifying preferences of the courts. the language of standing doctrine is simply too malleable and value-laden to be co-opted for the inapposite purpose of defeating privilege. rather, standing doctrine as a whole must be eliminated as a barrier to social justice and the ability of the non-privileged to assert substantive rights. there is simply no constitutional justification for retaining the embattled requirement of standing as a limit on federal court access. moreover, the sky will not fall once standing limitations are eviscerated, counter to the expected claims of defenders of the existing legal framework. our federal court system operated smoothly for nearly two hundred years before our understanding of “cases” and “controversies” became clouded with unworkable tort concepts like “injury-in-fact,” “causation,” and “redressability.”232 while the federal judiciary may find themselves short an arrow in their quiver of justiciability, there are still many procedural tools remaining to dispose of meritless and fantastical claims.233 additionally, courts still will be free to resort to a multitude of prudential, sub-constitutional mechanisms to promote efficient judicial review.234 the practical result of eliminating standing from the justiciability calculus, thus, would not be to open the “floodgates” inappropriately to federal judicial review, but rather to expand federal court access for non-white litigants seeking judicial protection of important constitutional and statutory rights. as justice brennan implored in his dissent in mcclesky v. kemp, we must not continue to retain a flawed framework of constitutional adjudication out of a “fear of too much justice.”235 232  see supra part ii. 233  for instance, federal courts have the power to entertain motions for dismissal and summary judgment. see fed. r. civ. p. 12(b)(6) & 56. 234  see supra note 29 and accompanying text (noting several prudential, sub-constitutional standing limitations, including the zone of interests test, the generalized grievances limitation, and restrictions on thirdparty standing). 235  481 u.s. 279, 339 (1987) (brennan, j., dissenting). note draft.docx 28 color in the “black box” vol. 5.1 color in the “black box”: addressing racism in juror deliberations† ashok chandran* the idea of trial by an impartial jury lies at the core of american criminal justice. yet racism—both explicit and implicit—often has profound impacts on the administration of criminal law and criminal procedure. such bias manifests itself at all levels of the system, including the deliberative process itself. currently, however, defendants of color have limited options in challenging racism in juries. this note analyzes a current circuit split over whether rule 606(b) provides defendants with one avenue of recourse by introducing juror testimony about statements made during the deliberative process. by looking at the history leading up to the rule’s enactment, this note centers institutional legitimacy in the discussion, arguing that the rule was born out of a desire to preserve the legitimacy of a jury trial following the demise of the trial by ordeal. by barring the introduction of juror testimony about allegedly racist statements made during deliberations, this note goes on to posit, a strict textual interpretation of rule 606(b) actually delegitimizes the jury trial in the eyes of communities of color. a strict commitment to the text, therefore, flies in the face of the very purposes of the rule. i. introduction……………………………………………………………… 29 ii. a rational blind faith: the historical origins of the jury as a black box……………………………………………………………………31 iii. trust in the system: the development of the jury “black box” in american jurisprudence………………………………………………….33 iv. shades of grey: racial bias in criminal proceedings………………..37 a. voir dire……………………………………………………………...37 b. rule 606(b)…………………………………………………………...40 v. moving forward: empirical realities of trial……………………… 43 a. race in criminal justice: rhetoric vs. reality………………………45 b. distrust in the system………………………………………………..48 vi. conclusion………………………………………………………………….51 2014 columbia journal of race and law 29 i. introduction “the one place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box. as you grow older, you'll see white men cheat black men every day of your life, but let me tell you something and don't you forget it whenever a white man does that to a black man, no matter who he is, how rich he is, or how fine a family he comes from, that white man is trash.” ~harper lee, to kill a mockingbird the notion of a trial by jury is one of the cornerstones of the american justice system, codified as a fundamental right by the sixth amendment to the u.s. constitution.1 as such, the protections of the sixth amendment guarantee more than just the right to any jury; rather, the text specifically guarantees all criminal defendants the right to trial “by an impartial jury.”2 the supreme court has stressed that this impartiality requirement is an added protection of the amendment, repeatedly overturning verdicts where a jury was predisposed to come to a certain conclusion.3 while a juror need not be completely ignorant of all aspects of the case,4 he must be able to “lay aside his impression or opinion and render a verdict based on the evidence presented in court.”5 preconceived notions of guilt and innocence should have no bearing on a trial; evidence alone should persuade an otherwise neutral body of jurors to come to a verdict. this impartiality is paramount for many reasons. first, and most obviously, it guarantees each defendant a fair chance to litigate his or her case without the specter of bias. juries predisposed to find a defendant guilty lessen the state's burden of proof and fail to grant a criminal defendant a fair trial, † this note was written before the supreme court issued its decision in warger v. shauers, no. 13-517 (dec. 8, 2014). though the court rejected warger’s attempts to create an implied exception to rule 606(b) of the federal rules of evidence in situations where jurors lie during voir dire, it did not squarely address the question taken up in this note: may allegations of racial bias in jury deliberations trump the text of the rule and allow juror testimony to serve as grounds for a new trial? * j.d. candidate 2015, columbia law school; b.a. 2012, yale university. the author would like to thank professors theodore shaw and daniel richman for their supervision and direction during the process of writing and editing this note. the author also thanks angelica pedraza and the staff of the columbia journal of race & law for their invaluable editing. 1 see duncan v. louisiana, 391 u.s. 145, 153-154 (1968) (“even such skeletal history is impressive support for considering the right to jury trial in criminal cases to be fundamental to our system of justice, an importance frequently recognized in the opinions of this court.”); see also thompson v. state of utah, 170 u.s. 343, 349-50 (1968) (“those who emigrated to this country from england brought with them this great privilege ‘as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.”) (quoting j. story, commentaries on the constitution of the united states 1779). 2 u.s. const. amend. vi (emphasis added). 3 see, e.g., irvin v. dowd, 366 u.s. 717 (1961) (“in the ultimate analysis, only the jury can strip a man of his liberty or his life. in the language of lord coke, a juror must be as ‘indifferent as he stands unsworne.’ his verdict must be based upon the evidence developed at the trial. this is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. it was so written into our law as early as 1807 by chief justice marshall. ‘the theory of the law is that a juror who has formed an opinion cannot be impartial.’”) (internal citations omitted); sheppard v. maxwell, 384 u.s. 333 (1966) (holding that jurors’ exposure to inherently prejudicial publicity due to community news saturation rendered the trial fundamentally unfair); morgan v. illinois, 504 u.s. 719 (1992) (emphasizing how central jury impartiality is in the context of capital trials). 4 see holt v. u.s., 218 u.s. 245 (1910) (finding a juror sufficiently neutral despite allegations that he had read about the case in the news). 5 irvin v. dowd, 366 u.s. 717, 723 (1961). 30 color in the “black box” vol. 5.1 “violating even the minimal standards of due process.”6 courts have suggested, however, a second—yet no less important—function of this requirement: the appearance of impartiality is needed to lend credibility to the entire enterprise of a jury trial.7 incredible powers are trusted to juries composed of average men and women. decisions of life and death are often made by twelve randomly chosen members of a community. for people to trust the system and continue to accept its validity, the jury’s decrees must be seen as truth.8 accordingly, the jury must be seen as something of a “black box,” a mysterious entity which produces a verdict from a set of facts through an unknown—and unknowable—deliberation process. the less the public knows about the decision-making process, the less able it is to criticize or question the resulting verdict. in america, such efforts were codified in rule 606 of the federal rules of evidence, subsection (b)(1): during an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. the court may not receive a juror's affidavit or evidence of a juror's statement on these matters.9 in protecting the mystery of the deliberation process, the drafters of the federal rules of evidence sought to preserve the legitimacy of the jury system by protecting it from undue public scrutiny; concerns of 6 id. at 722. 7 see, e.g., u.s. v. thomas, 116 f.3d 606, 618 (2d cir. 1997) (“it is well understood, for example, that disclosure of the substance of jury deliberations may undermine public confidence in the jury system.”); u.s. v. ebron, 683 f.3d 105, 125 (5th cir. 2012) (“[i]t is recognized that the secrecy of deliberations is essential to the success of the jury system.”). 8 i use a capital “t” in describing this concept to distinguish between “truth” (what actually happened in a given transaction) and “truth” (what is pronounced to have occurred by the jury). 9 fed. r. evid. 606(b)(1). this note focuses exclusively on the federal rules of evidence, rather than addressing the various state rules that exist. aside from workability concerns and the fear of making this note overly lengthy, the federal focus makes sense because many state rules either parallel rule 606(b) or impose stricter burdens. see, e.g., il. r. evid. rule 606 (2010) (employing the same language as the federal rule); ala. r. evid. 606 (1996) (mirroring the federal statute but leaving out the third exception); wy. r. evid. 606 (1977) (employing only the first two exceptions found in the federal rule); pa. r. evid. 606 (employing only the first two exceptions of the federal rule); oh. r. evid. 606 (1980) (allowing jurors to testify as to external influences only after “outside evidence” was introduced). some states offer comparatively more protections in their statutes, see, e.g., in. r. evid. 606 (containing all three exceptions found in the federal rule and an additional exception for “any juror’s drug or alcohol use”); n.d. r. evid. 606 (containing the three federal exceptions and an exception for testimony about “whether . . . the verdict was arrived at by chance”); mont. r. evid. 606 (allowing jurors to testify as to “whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance”), but do not do so in a way that would allow testimony about racial bias. only a few states seem to leave open the option of this kind of testimony. rule 5-606 of the maryland code seems to start from a general presumption that jurors should be allowed to testify, only disallowing juror testimony as to “(a) any matter or statement occurring during the course of the jury's deliberations, (b) the effect of anything upon that or any other sworn juror's mind or emotions as influencing the sworn juror to assent or dissent from the verdict, or (c) the sworn juror's mental processes in connection with the verdict.” md. rule 5-606 (1993). california, on the other hand, has expressly allowed such testimony as a matter of state law. the california supreme court has interpreted section 1150 of the california evidence code to allow juror testimony about statements made in the deliberative process. people v. steele, 47 p.3d 225 (cal. 2002). importantly, juror testimony is still limited to only the actual statements made; jurors may not testify as to the likely effects of the statements. id. at 248. connecticut and hawaii also seem to take this approach. for a comparison of these three states’ rules with the federal rules and a discussion of the benefits and disadvantages of each, see nicholas bauman, “extraneous prejudicial information”: remedying prejudicial juror statements made during deliberations, 55 ariz. l. rev. 775 (2013). 2014 columbia journal of race and law 31 finality and secrecy outweighed the potential value of more accurate verdicts.10 this note accepts as a valid and, indeed, valuable, premise the legitimizing role of “black box” deliberation; important considerations of the judiciary’s image generally favor this sort of approach to adjudication.11 however, this note posits that in the context of racial politics, the justice system’s refusal to acknowledge the welldocumented impacts of explicit and implicit racial bias on jury deliberations has had the opposite effect, undermining its legitimacy in the eyes of communities of color. part ii explores the rationale for treating the jury as a black box, tracing the concept to its origins at common law to explain how the idea became so central to our judiciary. part iii examines the american approach to this principle, looking at its codification in rule 606(b) of the federal rules of evidence and its treatment in subsequent supreme court jurisprudence. part iv shifts focus and looks at the ways in which the law currently allows defendants to address issues of racism in the jury pool. it then traces a current circuit split over the question of whether rule 606(b) conflicts with the fourteenth amendment's guarantee of racial equality. finally, part v introduces social science research showing the effects of implicit racial bias on juries’ decision-making processes and explores the impacts of racially disparate treatment on the legitimacy of the system as a whole to suggest that, as a prudential matter, 606(b)(1) should not bar defendants from alleging racial bias in the jury in post-conviction motions for new trials.12 ii. a rational blind faith: the historical origins of the jury as a black box in order to understand the contemporary legal landscape surrounding rule 606(b) and the importance of jury secrecy to the american system, it is important to trace their historical origins. though considered one of the bedrocks of contemporary criminal procedure, the secrecy of jury deliberations may have arisen as a historical accident. the concept originated in medieval england. before the adoption of the jury system as we know it today, courts settled disputes by subjecting parties to a trial by ordeal.13 under this system, a trial would begin upon accusation by a presentment jury.14 this jury, however, served no adjudicative purpose; their duty was merely to “report every crime and every suspect.”15 once so accused, a defendant would swear an oath of innocence before a priest or clergyman.16 the clergyman overseeing the ordeal would then subject the accused to some sort of extreme physical test or punishment to allow a divine determination of his guilt or innocence.17 the nature of the punishment varied; so long as the burden served as a “test of deed or word, fraught with moral danger that yielded the deity's judgment mediated through man's practical wisdom,”18 any sort of punishment would do. most common was the 10 s. rep. no. 93-1277, at 13-14 (1974). 11 for a discussion of the arguments on the other side, see andrew j. hull, unearthing mansfield’s rule: analyzing the appropriateness of federal rule of evidence 606(b) in light of common law tradition, 38 s. ill. u. l.j. 403 (2014) (arguing that rule 606(b) represents a break from older common law tradition and hampers important policy ends). 12 of course, many different forms of bias play out in the criminal justice system. for an in-depth treatment of other types of bias that affect criminal defendants in the trial process, see generally joey l. mogul, the dykier, the butcher, the better: the state’s use of homophobia and sexism to execute women in the united states, 8 n.y. city l. rev. 473 (2005) (describing sexism and homophobia through the trial process); kimberly a. moore, xenophobia in american courts, 97 nw. u. l. rev. 1497 (2003) (describing xenophobia and anti-immigrant bias); ann cammett, shadow citizens: felony disenfranchisement and the criminalization of debt, 117 penn st. l. rev. 349 (2012) (describing bias against poor ex-felons in requirements for regaining voting privileges). this note, however, focuses only on the question of racial bias. 13 george fisher, the jury’s rise as lie detector, 107 yale l.j. 575 (1997). 14 roger groot, the jury of presentment before 1215, 26 am. j. legal hist. 1 (1982). the idea of a “jury” was probably first seen in 1166. id. at 3. 15 id. at 5. 16 carl stephenson & frederick george marcham, sources of english constitutional history 77-78 (1972). 17 trisha olson, of enchantment: the passing of ordeals and the rise of jury trials, 50 syracuse l. rev. 109, 118 (2000). 18 id. 32 color in the “black box” vol. 5.1 ordeal of the iron, in which the accused would be required to carry a red-hot iron a distance of approximately three meters.19 the accused was found to be innocent if the resulting burns healed completely within three days. other examples of ordeals included the ordeal of the cauldron (in which the accused could prove innocence by seizing a small object from the bottom of a cauldron filled with boiling water without sustaining burns),20 the ordeal of cold water (in which the accused proved innocent if, after being submerged into a pool of blessed water, she sank),21 the ordeal of hot ploughshares (in which the accused would prove innocence by walking unharmed over a bed of hot coals),22 and the ordeal of the cursed morsel (in which the accused would prove innocence by swallowing roughly one ounce of cheese).23 the trial by ordeal was, at its core, premised on the belief that a divine power would intervene to protect those who were truly innocent.24 medieval rulers acknowledged the link between ordeals and divine protection and, indeed, valued it; one of the earliest carolingian capitularies proclaimed: “[l]et doubtful cases be determined by the judgment of god.”25 when the accused passed these tests, therefore, he showed divine favor; god, after all, could never make a mistake about a person’s guilt. this element of divinity that underpinned the trial by ordeal also served to cement people’s faith in the verdict of a case. the ordeal was “enforced in an exercise of power, yet [it] represented submission to that power as submission to the deity.”26 submitting to the trial process was thus explicitly considered a submission to god. by presenting the adjudicative process as something beyond the control of man, beyond his prejudice and bias, the ordeal brought the divine into the trial and rendered the verdict itself unassailable. thus, trial by ordeal established an early emphasis on the finality of a verdict. in this system, to question the verdict would be to question god itself. such doubt was unheard of in the deeply religious world of early medieval england. the trial by ordeal met its end in 1215, when the fourth lateran council forbade members of the cloth from presiding over such ordeals.27 without a priest to ensure god's presence in the ritual, the trial was fundamentally disrupted. the presence of the priest at the ordeal had affirmed the divine aspects of the trial, thus stripping the ordeal of its divine imprimatur deprived the ritual of authority, and the ordeals quickly became meaningless.28 neither the council nor the crown, however, seems to have posited a substitute; scholars suggest that the english criminal courts began using the presentment jury to determine questions of fact and deliver final verdicts, simply “substitut[ing] one ordeal for another.”29 though this use of the jury was initially rejected,30 by 1229, the practice seems to have become commonplace.31 19 id. at 117. 20 id. 21 id. 22 id. 23 id. 24 fisher, supra note 13, at 585-587. 25 olson, supra note 17, at 122. 26 robert bartlett, trial by fire and water 100 (1986). 27 fisher, supra note 13, at 586. 28 james fitzjames stephen noted that the author of the mirror complained during the reign of edward i (1272-1307), “it is an abuse that proofs and purgations be not by the miracle of god where other proof faileth.” james fitzjames stephen, a history of the criminal law of england 253 (1883) (quoting article 127 of the mirror). 29 fisher, supra note 13, at 586. 30 see jerome frank, courts on trial: myth and reality in american justice 44 (1950) (“leave to the inadequate judgments of mere human judges the testing of the truth-telling of witnesses, when life or property are at stake? by no means.”). indeed, in the early years of the jury trial as we know it today, people were so reluctant to consent to a trial by jury that english courts began threatening defendants to get them to do so. fisher, supra note 13, at 588-89. 31 olson, supra note 17, at 172. 2014 columbia journal of race and law 33 the shift from a divine arbiter to a human one brought with it important considerations of institutional legitimacy and finality of judgments. the trial by ordeal was believed precisely because it was divine. guilt or innocence was pronounced through the infallible judgment of god.32 what could make a verdict rendered by mere men, as opposed to such a divine being, final and legitimate? and if the verdicts themselves were illegitimate, how could the system be trusted? as a note in the harvard law review suggests, the crown responded by creating a highly formalized body of rules that enshrouded the entire process of jury deliberation in secrecy to maintain the sense of mystery and wonder that had accompanied the ordeal and rendered verdicts final.33 procedural legitimacy became of paramount importance in filling the void: “if the public is to be persuaded to entrust controversies to the judicial system, what is crucial, even more than that the ‘truth’ be found, is that it appear to be found through a legitimate, reliable process; as long as the ultimate determination of closely contested issues continues to depend on jury verdicts, the law has an obligation to maintain general respect for those verdicts, to avoid exposing them ‘to easy and obvious criticism.’”34 rules of procedure that removed the deliberative process further and further from public imagination served this legitimizing role.35 by the mid-1300s, juries in england seem to have begun deliberating in a physically distinct space: the juror room.36 no one was allowed access to the jury room until the verdict was delivered.37 conversely, no juror was allowed to leave the jury room until a verdict had been reached.38 this secrecy led to an important consequence: erdicts could not be impeached by questioning the validity of the jurors' deliberations.39 by shrouding the jury and the deliberation process to the greatest extent possible, these procedural rules obscured the fact that the decision was made by fallible humans. just as the divine verdict of the ordeal was seen as superhuman, immune to individual prejudices, the jury verdict was presented as the result of an inexplicable and unassailable process. once the process was mystified, it became impossible to critique. the rules allowed the community to suspend its disbelief, maintaining a blind faith that the process was working justice. iii. trust in the system: the development of the jury “black box” in american jurisprudence american courts generally accepted the british tradition of secrecy surrounding jury deliberations. early courts in colonial virginia required jury deliberations to be conducted in complete isolation. like their british counterparts, virginia juries were unable to interact with the outside world in any way before rendering a verdict.40 by the early 20th ccentury, therefore, evidence scholars noted that the firmly 32 id. at 120. 33 note, public disclosures of jury deliberations, 96 harv. l. rev. 886, 891 (feb. 1983). 34 id. 35 see generally william holdsworth, a history of english law 298-350 (6th ed. 1938) (describing the origin and development of juries in england). 36 id. at 318. 37 william forsyth, history of trial by jury 114 (james appleton morgan ed., 1857) (1853). 38 diane e. courselle, struggling with deliberative secrecy, jury independence, and jury reform, 57 s.c. l. rev. 203, 215 (autumn 2005). 39 patrick devlin, trial by jury 48 (1966) (“the court will not listen to any juryman who has second thoughts or allow any of them to assert thereafter that he was not a consenting party to the verdict.”). 40 courselle, supra note 38, at 217; see also nancy j. king, the origins of felony jury sentencing in the united states, 78 chi.-kent l. rev. 937, 946-47 (2003) (noting an early virginia opinion that permitted a convicted defendant to go free because the court allowed a juror to visit his family for five minutes during deliberations). 34 color in the “black box” vol. 5.1 established common law rule in the united states flatly prohibited the admission of juror testimony to impeach a jury verdict.41 courts thus accepted the underlying philosophy that the finality interests protected by deliberative secrecy outweighed the risk of some juror misconduct during deliberations.42 as jury verdicts became increasingly difficult to question, mistakes became harder to find. in hyde v. u.s.,43 petitioners convicted of conspiracy to defraud the united states sought to vacate their convictions by alleging juror misconduct and bargaining in the deliberative process. after the jury twice failed to reach a verdict, the presiding judge told the jurors that they had to come to a unanimous verdict, and sent them back for further deliberation. one juror alleged that certain members of the jury, fearing that the judge would make all stay until a verdict was reached, had simply bargained away their votes. the petitioner claimed that this agreement amounted to undue coercion by the judge's orders. the supreme court rejected petitioner's claim, however, declaring that “the testimony of jurors should not be received to show matters which essentially inhere in the verdict itself and necessarily depend upon the testimony of the jurors, and can receive no corroboration.”44 american courts did recognize, however, that concerns of fairness outweighed finality at a certain point. as early as 1907, the supreme court recognized that defendants had a right to a jury free from outside influences.45 in the 1950’s, the supreme court emphasized this freedom from external influences in remmer v. u.s., holding that certain errors were too egregious to overlook in the name of finality.46 there, the court was forced to address the issue of whether or not allegations of bias in the jury (based on one juror's potential pecuniary gain from returning a guilty verdict) required that petitioner be granted a new hearing.47 justice minton, in a unanimous opinion, was careful to point out the secrecy concerns at stake. allowing post-conviction inquiry into the validity of the deliberation would open a veritable pandora's box, for “a juror must feel free to exercise his functions without the f.b.i. or anyone else looking over his shoulder. the integrity of jury proceedings must not be jeopardized by unauthorized invasions.”48 on the other hand, the court noted the axiom that “any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial . . . .”49 these two principles were in conflict in remmer: allowing the petitioner to successfully challenge the verdict would destabilize the jury system, but rejecting the petition would effectively condone bribery in the justice system. ultimately, the court found that the bribery made the risk of prejudice too high, granting petitioner's motion for rehearing, but provided no reason for the balancing. such was the state of deliberative secrecy at common law in the united states. congress, in adopting the federal rules of evidence, believed that it was merely codifying the state of these common law principles about deliberative secrecy in rule 606 of the federal rules of evidence (hereafter, the “rule”), which speaks generally to circumstances in which members of a juror may testify as a witness.50 the rule specifically states that: 41 see 8 j. wigmore, evidence § 2352, pp. 696-697 (j. mcnaughton rev. ed. 1961) (noting that the common law rule, originating from a 1785 opinion of lord mansfield, “came to receive in the united states an adherence almost unquestioned.”). 42 courselle, supra note 38, at 219. 43 225 u.s. 347 (1912) 44 id. at 384 45 patterson v. colorado, 205 u.s. 454, 462 (1907). 46 347 u.s. 227 (1954). 47 id. 48 id. 49 id. at 229 50 s. rep. no. 93-1277, at 13-14 (1974); fed. r. evid. 606. 2014 columbia journal of race and law 35 during an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. the court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.51 thus, by its plain terms, the rule generally bars jurors from testifying as to any issues affecting the deliberative process. in its notes about the rule, the advisory committee explained: “the mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment.”52 allowing judges to conduct an ex post facto review of jury deliberations would open every verdict to questioning. the stability of the entire system would be undermined, and the legitimacy of the jury trial would be compromised. this protection is not without exceptions, however. the rule itself acknowledge three specific exceptions to the general principle of the jury “black box.” jurors may be forced to discuss their deliberative process when: “(a) extraneous prejudicial information was improperly brought to the jury’s attention; (b) an outside influence was improperly brought to bear on any juror; or (c) a mistake was made in entering the verdict on the verdict form.”53 the first two exceptions seemed to codify the earlier common law tradition, under which judges handled such challenges by drawing a distinction between external and internal influences on a jury: influences from someone who was not physically in the jury room were “external,” while anything about the jurors themselves was “internal.”54 under this analysis, petitioners could only challenge their sentences and force jurors to testify when the jury had improper interactions with the outside world. for example, the supreme court found that a jury's improper conversations with the bailiff,55 a juror's pending application with the district attorney's office,56 and a purported bribe offered to a juror57 were all impermissible “external” influences that empowered the court to explore what, if any, prejudice resulted to the defendants. on the other hand, internal matters such as the conduct and disagreements of the jurors58 or the bargaining process that took place in deliberations59 were inappropriate considerations for review. years later, the supreme court clarified this standard in the case of tanner v. u.s.,60 reaffirming its commitment to a jury “black box” in interpreting rule 606(b). petitioner tanner was charged with and convicted of conspiring to defraud the united states and committing mail fraud by an allegedly intoxicated jury. after a juror revealed this information to tanner's attorney in an unsolicited phone call, tanner appealed, alleging that intoxication was an impermissible external influence that warranted a new trial. according to the juror who came forward, the behavior was extreme: throughout the trial, several jurors had consumed significant quantities of alcohol, which caused them to fall asleep in the middle of trial. 51 fed. r. evid. 606(b)(1). 52 fed. r. evid. 606(b), notes of advisory committee. 53 fed. r. evid. 606(b)(2). 54 tanner v. united states, 483 u.s. 107, 117-18 (1987). 55 parker v. gladden, 385 u.s. 363 (1966). 56 smith v. phillips, 455 u.s. 209 (1982). 57 remmer, supra note 46. 58 mcdonald v. press, 238 u.s. 264 (1915). 59 hyde v. u.s., 225 u.s. 347 (1912) (denying a motion for a new trial based on allegations that jurors bargained away their votes in order to end the deliberations sooner). 60 483 u.s. 107. 36 color in the “black box” vol. 5.1 prosecutors, defense counsel, and even the judge noticed this pattern, but simply thought nothing of it.61 in rejecting a petitioner’s challenge of potential bias in the jury, the court wrote: there is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. it is not at all clear, however, that the jury system could survive such efforts to perfect it. allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process. . . . moreover, full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct.62 in this candid recognition of the system’s imperfections, the court acknowledged that the hardline rule of jury secrecy could potentially lead to injustice in certain cases. juror bias would be allowed to play out behind closed doors, effectively immune to challenges by convicted defendants. gross misbehavior in the courthouse—the supposed bastion of justice—would simply be forgiven. yet the court feared the catastrophic effects of juror questioning would be even more harmful to society.63 the injustice caused by unfair verdicts, in its view, was far less than the legitimacy that would be lost if the curtain were raised and jury determinations were subject to a sort of appellate review. in explaining the exceptions put forth in rule 606(b)(1)(a) and (b), the court emphasized that the external/internal distinction was not a spatial one. the fact that the jurors had obtained the alcohol and become intoxicated outside of the jury room was thus not relevant to the 606(b) question. rather, the court held, the distinction focused on the nature of the interference itself.64 an interference that was entirely internal—such as conflicts between jurors or an individual juror's bias or prejudice—was not reviewable after a verdict was rendered. internal biases and interferences could not easily be avoided or excised from the process; so long as human juries are to be used, individual bias will enter into the deliberative process. allowing such challenges of the internal deliberation process, therefore, would be to allow challenges to the validity of the entire system. external interferences, on the other hand, did not present the same legitimacy concerns. in fact, the court reasoned, reviewing a juror's interactions with the outside world enhanced the legitimacy of the jury trial by ensuring that only the jurors at the trial (and nobody else who had improper contact with them) would return the verdict.65 juror conduct during the trial and deliberations was not sufficiently external to be properly challenged in a post-conviction motion. regardless of the efficacy of this distinction or its wisdom as a matter of policy,66 one thing is clear from the court's discussion: by the time of tanner, it was accepted that the core purpose of rule 606(b) was to preserve the legitimacy of the jury process. 61 id. at 114–15 62 id. at 120–21. 63 id. at 121. 64 id. at 117–18 (“the distinction was not based on whether the juror was literally inside or outside the jury room when the alleged irregularity took place; rather, the distinction was based on the nature of the allegation. clearly a rigid distinction based only on whether the event took place inside or outside the jury room would have been quite unhelpful.”). 65 id. at 120 (“the court’s holdings requiring an evidentiary hearing where extrinsic influence or relationships have tainted the deliberations do not detract from, but rather harmonize with, the weighty government interest in insulating the jury's deliberative process.”). 66 perhaps part of the justification for this rule can be found in the asymmetry of appellate remedies. this asymmetry results from the general principle that while defendants may appeal convictions, the government may never appeal an acquittal. see kepner v. united states, 195 u.s. 100, 133 (1904) (holding that the government may not appeal an acquittal). one could argue that, given this powerful remedy available only to defendants, judgments of conviction 2014 columbia journal of race and law 37 iv. shades of grey: racial bias in criminal proceedings racial disparities exist at all levels of the criminal justice system. 67 the courtroom is no exception. 68 defendants of color—generally litigating their cases in front of white judges and predominantly white juries—have long raised challenges to their trials and convictions by alleging racial bias in the judicial process itself.69 racism in the jury can be challenged in two main ways: the voir dire process, which allows a defendant to question jurors before the trial begins for the purposes of striking certain members of the pool, or a 606(b) exception, which allows a defendant to solicit juror testimony after a verdict has been returned for the purpose of seeking a new trial. over the 20th century, the supreme court's attitude towards voir dire has changed significantly: while at first the court seemed to allow broad inquiry into racial bias in the jury pool, the limits it has recently placed on voir dire rights have rendered the process relatively weaker, unable to root out deepseated racism in juries. as 606(b) is a newer rule, there is less case law on the subject. however, the current circuit split on the rule may give the court an opportunity to limit post-conviction challenges in the same way. given this potential parallel, both processes are addressed in turn. a. voir dire one way defendants may seek to examine potential racism in jurors through the voir dire process, by which defendants are given the opportunity to question prospective jurors before the trial begins. during voir dire, defendants are allowed to ask direct questions to jurors “in relation to their ability to decide a particular case.”70 this right is not absolute, however.71 recognizing the potential for excessively long or irrelevant voir dire, many courts have imposed additional limits on proper voir dire questioning. some courts, for example, limit the types of questions that may be asked during voir dire to only those should be protected from complete scrutiny. however, as this note focuses only on comparing the experiences of defendants of color raising post-conviction challenges to white defendants raising similar challenges, these broader issues are less relevant. as the rest of this note will show, defendants of color face the unique challenge of racism in deliberations; thus, while it accepts the general bar on postconviction juror testimony, this note still argues for a limited exception to place defendants of color and white defendants on a more even playing field. 67 see generally justin murray, reimagining criminal prosecution: toward a color-conscious professional ethic for prosecutors, 49 am. crim. l. rev. 1541 (2012) (describing ways in which racial disparities are maintained through prosecutors’ discretionary decisions before and after trial and the external influence of institutional policies and culture). 68 see peggy c. davis, law as microaggression, 98 yale l.j. 1559 (1989) (describing the various ways in which black communities experience courtrooms and jury trials). 69 see, e.g., ellis v. harrison, 2010 wl 3385206 (c.d. cal. july 20, 2010) (alleging biased counsel); mason v. mitchell, 320 f.3d 604 (6th cir. 2003) (alleging a biased jury); love v. state, 543 n.w.2d. 621 (iowa ct. app. 1995) (pointing to jury orientation instruction drawing attention to black defendant and white victim); marshall v. state, 854 so.2d 1235 (fla. 2003) (alleging a biased jury); smith v. mitchell, 348 f.3d 177 (6th cir. 2003) (alleging bias in charge and prosecution of capital offenses and discrimination in selection of jury); state v. kinder, 942 s.w.2d 313 (mo. 1996) (en banc) (alleging biased judge and disqualification of juror potentially favorable to black defendant); villafuerte v. stewart, 142 f.3d 1124 (9th cir. 1998) (alleging biased judge). 70 barbara allen babcock, voir dire: preserving “its wonderful power”, 27 stan. l. rev. 545, 545 (1975). 71 indeed, the supreme court has never held voir dire as constitutionally required, though several states have suggested as much. see, e.g., state v. sanko, 658 s.e.2d 94, 96 (s.c. 2008) (“a capital defendant’s right to voir dire, while grounded in statutory law, is also rooted in the due process clause of the fourteenth amendment of the united states constitution.”), cert. denied 555 u.s. 875 (2008); state v. ball, 824 so. 2d 1089, 1110 (la. 2002) (holding as a matter of state constitutional law that “[a]s a general matter, an accused in a criminal case is constitutionally entitled to a full and complete voir dire examination.”). 38 color in the “black box” vol. 5.1 which are “directly relevant” to the trial.72 importantly, the determination of “direct relevance” is left to the discretion of the court, and a trial judge’s refusal to allow even proper lines of questioning is often found to be errorless on appeal.73 in the later nineteenth and early twentieth centuries, as litigants of color first began entering the system in larger numbers, courts faced a new question: was voir dire about jurors' potential racial biases an acceptable or reasonable ground of questioning? the supreme court first addressed this question in the case of aldridge v. u.s., where a black defendant charged with and convicted of first degree murder of a white man challenged his trial judge's refusal to question the jury about racial bias.74 the defendant’s counsel noted that “at the last trial of this case” at least one juror, a white woman, mentioned that “the fact that the defendant was [black] and the deceased a white man perhaps somewhat influenced her.”75 the court, in an 8-1 opinion, held that the trial judge's refusal was erroneous, reasoning that the risk of prejudice in such an instance was simply too high.76 the court rejected the argument that the juror could simply put aside her racist beliefs in reaching a verdict, particularly where the juror had made a statement that overtly showed bias.77 notably, the court based its decision, in part, on the fact that refusing to acknowledge racial bias in the jury system would surely bring the system into disrepute.78 thus legitimacy was still at the forefront of the court's mind, even when addressing questions of racism. nearly four decades later, the court revisited the issue and affirmed its stance in ham v. south carolina, this time grounding its decision in the fourteenth amendment's due process clause.79 noting that “a principal purpose of the adoption of the fourteenth amendment was to prohibit the states from invidiously discriminating on the basis of race.”80 justice rehnquist—in a part of the opinion without dissent—held that the trial judge had a constitutional duty to ask about racial bias in voir dire when such questions were proposed by the defendant even without the overt evidence of racial bias that was present in aldridge.81 72 see, e.g., people v. semone, 35 p.2d 379, 383 (cal. ct. app. 1934) (limiting “examination of jurors within reasonable bounds so as to expedite trial.”); people v. crowe, 8 cal. 3d 815, 818-19 (cal. 1973) (holding that it is appropriate under statute for judge to limit questions posed to potential jurors to those “within the scope of reasonable examination.”). for a more thorough discussion of the various limits courts may impose and the broad latitude they are given in doing so, see generally r. brent cooper & diana l. faust, procedural and judicial limitations on voir dire— constitutional implications and preservation of error in civil cases, 40 st. mary’s l.j. 751 (2009). 73 babcock, supra note 70, at 546. 74 283 u.s. 308 (1931). 75 id. at 310. 76 id. at 314-15. 77 see id. at 314 (“if any one of them [the jurors] was shown to entertain a prejudice which would preclude his rendering a fair verdict, a gross injustice would be perpetrated in allowing him to sit. . . . we do not think that it can be said that the possibility of such prejudice is so remote as to justify the risk in forbidding the inquiry.”). 78 id. at 314-15 (“the argument is advanced on behalf of the government that it would be detrimental to the administration of the law in the courts of the united states to allow questions to jurors as to racial or religious prejudices. we think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. no surer way could be devised to bring the processes of justice into disrepute.”). 79 409 u.s 524 (1973). petitioner, a black, bearded civil rights advocate who had lived the majority of his life in south carolina, was on trial for marijuana possession. in voir dire, the petitioner sought to have the jury questioned about potential biases against (1) black people, (2) bearded people, and (3) drug use. the trial judge declined to inquire about any of the subjects, instead asking only generally about bias and prejudice. id. at 526. 80 id. at 526-7. 81 see id. at 525 (noting only that defendant was a civil rights advocate who lived in the south, and presenting no additional evidence of any particular juror's bias). 2014 columbia journal of race and law 39 ham's seemingly broad holding—namely, that a defendant always has a right to question prospective jurors about racial bias—was narrowed just three years later, in ristaino v. ross.82 writing for the majority, justice powell emphasized that ham did not create an unqualified and generally applicable right to examine a jury's racial bias. determining bias, justice powell wrote, was “particularly in the province of the trial judge.”83 he distinguished ham by discussing the particular factual circumstances that made an inquiry into racial bias necessary in that case: since the defendant was a civil rights advocate, justice powell determined, “[r]acial issues . . . were inextricably bound up with the conduct of the trial.”84 the petitioner in ristaino, on the other hand, only contended that racial bias was possible because of the interracial nature of his crime (he was black, and the alleged victim was white).85 the court refused to find that there was a significant likelihood of prejudice to a defendant based on nothing more than an interracial crime.86 rather than articulate a clear test for determining when such questioning would be proper, the court merely said courts must “[assess] whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be as indifferent as they stand unsworne.”87 the uncertainty created by this ambiguous language led to a circuit split over the question of when race-based voir dire was acceptable. thus, seven years later, the court was forced to reconsider the issue and clarify its ruling in ristaino in rosales-lopez v. u.s., in which a mexican american sought to examine the jury's racial bias in his trial for his part in a plan to smuggle illegal immigrants across the border.88 at first glance, the ristaino language would seem to allow such questioning; illegal immigration is viewed as a heavily racialized practice, the stereotypes of which disproportionately affect latinos and, specifically, mexicans.89 thus it seems it would have been extremely prejudicial to have jurors associate the defendant with illegal immigration in the trial. in a plurality opinion by justice white, however, the court rejected petitioner's argument. ristaino and ham, according to justice white and the plurality, only required a trial judge to allow race-based questioning where racial issues were “inextricably bound up with the conduct of 82 424 u.s. 589 (1976). respondent, a black male, was tried for armed robbery, assault, and battery of a white security guard. before the start of voir dire, respondent’s counsel asked to have the jury questioned about racial prejudices. the following exchange occurred: “the court: . . . i thought from something mr. donnelly (counsel for a codefendant) said, he might have wanted on the record something which was peculiar to this case, or peculiar to the circumstances which we are operating under here which perhaps he didn't want to say in open court. “is there anything peculiar about it, mr. donnelly? “mr. donnelly: no, just the fact that the victim is white, and the defendants are black. “the court: this, unfortunately, is a problem with us, and all we can hope and pray for is that the jurors and all of them take their oaths seriously and understand the spirit of their oath and understand the spirit of what the court says to them this judge anyway and i am sure all judges of this court would take the time to impress upon them before, during, and after the trial, and before their verdict, that their oath means just what it says, that they are to decide the case on the evidence, with no extraneous considerations. “i believe that that is the best that can be done with respect to the problems which as i said, i regard as extremely important . . . .” id. at 591. 83 id. at 595 (citing rideau v. louisiana, 373 u.s. 723, 733 (1963)). 84 id. at 597. 85 id. at 591 (noting that defense counsel, when asked for reasons why he wished to question jurors about racial bias, replied: “just the fact that the victim is white, and the defendants are black.”). 86 id. at 597-98. 87 id. at 596 (internal quotations and citations omitted). 88 451 u.s. 182 (1981). 89 see generally kevin r. johnson, how racial profiling in america became the law of the land: united states v. brignoni-ponce and whren v. united states and the need for truly rebellious lawyering, 98 geo. l.j. 1005 (2010) (noting how racialized stereotypes about illegal immigration have become increasingly prevalent in the wake of brignoni-prince and the acceptance of “mexican appearance” as a relevant factor in making an immigration stop). 40 color in the “black box” vol. 5.1 the trial.”90 this link required “more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case. . . .”91 importantly, rosales-lopez altered the presumption in such cases; whereas aldridge and ham presumed the validity of a defendant's proposed line of questioning, the rosales-lopez court specifically stated that “[t]here is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups.”92 where their decisions about voir dire questioning had previously been entitled to some deference, petitioners now bore the heavy burden of making a “substantial indication” that racial issues were “inextricably bound up” with the trial. importantly, however, the court again emphasized that such rules were in place to preserve the legitimacy of the jury trial, echoing the aldridge court’s concerns.93 thus, even while curtailing defendants’ rights to inquire about racism in voir dire, the court reaffirmed that concerns of institutional legitimacy were central to questions of jury procedure and selection. curiously, however, the rosales-lopez court went on to deny petitioner’s requests,94 without providing any further discussion about legitimacy of the jury trial. b. rule 606(b) defendants may also challenge potential bias in the jury after their convictions by seeking permission to interview jurors after the verdict has been rendered. nearly all courts in the united states have some procedure by which an attorney may obtain permission from the court to take juror testimony pursuant to rule 606(b). as a gatekeeping matter, however, a defendant must show that her case falls into one of the three exceptions to the rule. the ability of a defendant to request such permission specifically for the purpose of uncovering racial bias, however, is hotly contested. textualists may argue that rule 606(b) specifically enumerates only three exceptions to the general bar on juror testimony: (1) extraneous prejudicial information improperly brought to the jury's attention, (2) outside influences improperly brought to bear on any juror, and (3) mistakes on the verdict form.95 the need to protect juries and jury verdicts, under this view, requires a narrow construction of any rule which interferes with the jury’s privacy.96 opponents of this approach, on the other hand, argue that the guarantee of a fair trial afforded by the sixth amendment supersedes the text of the federal rules of evidence, and thus jury racism is properly questioned to impeach a verdict.97 the supreme court has remained silent on this issue. tanner, discussed above, is the only supreme court case that interprets rule 606(b) and its limitations of juror testimony. the petitioner in tanner sought to interview jurors after the entry of a verdict to determine whether or not one of the jurors had been intoxicated for one day of the trial. in rejecting petitioner's argument, the court noted that significant protections already existed to guarantee defendants a sixth amendment impartial jury. voir dire, observations of the jury by counsel and the court during trial, opportunities for jurors to report inappropriate juror behavior prior to rendering a verdict, and the admissibility of non-juror testimony as to wrongdoing all were sufficient procedural safeguards that adequately prevented juror bias from affecting the deliberation process.98 90 rosales-lopez, 452 u.s. at 189 (citing ristaino, 424 u.s. at 597). 91 id. at 190. 92 id. 93 id. at 191 (citing aldridge, 283 u.s. at 314-5). 94 id. at 193-4. 95 fed. r. evid. 606(b)(2). 96 see generally scott ritter, beyond the verdict: why courts must protect jurors from the public before, during, and after high-profile cases, 89 ind. l.j. 911 (spring 2014). 97 see amanda r. wolin, what happens in the jury room stays in the jury room . . . but should it?: a conflict between the sixth amendment and federal rule of evidence 606(b), 60 u.c.l.a. l. rev. 262 (october 2012). 98 tanner, 483 u.s. at 127. scholars, however, have subsequently addressed the shortcomings of these measures. see, e.g., leah s. p. rabin, the public injury of an imperfect trial: fulfilling the promise of tanner and the sixth 2014 columbia journal of race and law 41 in the wake of tanner, however, the circuits have split over whether or not evidence of racial bias in the jury warrants granting a defendant's request to interview jurors and compel testimony. the tenth circuit read tanner to its logical end and adopted a textualist view of rule 606(b) in u.s. v. bennally.99 in bennally, a native american defendant convicted of assault with a dangerous weapon sought a new trial after one juror came forward with an allegation that racially charged statements had been made during deliberations.100 a second juror made statements to the defense investigator corroborating the first juror's charges, but refused to sign an affidavit to that effect. bennally moved to vacate the verdict pursuant to rule 33 of the federal rules of criminal procedure. even though the trial court had allowed the defendant to ask about racial bias in voir dire, bennally contended that the statements of the jurors clearly showed that they had lied. the government, in opposition, argued that rule 606(b) barred impeachment of the verdict based on the purely personal beliefs of jurors. the district court held that racist beliefs constituted “extraneous prejudicial information” and were thus excepted from the bar on juror testimony. on appeal, the tenth circuit reversed, finding the statutory terms unambiguous that any prejudicial information must be “extraneous,” or external to the juror, to be properly considered. the court recognized that bennally likely had been prejudiced by the jurors' racism, yet stressed the countervailing interest of the state in maintaining the jury “black box”: to treat the jury as a black box may seem to offend the search for perfect justice. the rule makes it difficult and in some cases impossible to ensure that jury verdicts are based on evidence and law rather than bias or caprice. but our legal system is grounded on the conviction, borne out by experience, that decisions by ordinary citizens are likely, over time and in the great majority of cases, to approximate justice more closely than more transparently law-bound decisions by professional jurists.101 in so noting, the court reiterated the importance of jury mystery: “[i]f what went on in the jury room were judicially reviewable for reasonableness or fairness, trials would no longer truly be by jury, as the constitution commands.”102 allowing a court to intervene whenever a jury verdict was purported to be unfair or unreasonable, the court worried, would put the entire legitimacy of the jury system at stake. nobody could rely on a jury verdict that could so easily be overturned. the court, in denying bennally's claim, saw itself as “preserv[ing] the community's trust in a system that relies on the decisions of laypeople amendment through post-verdict inquiry into truthfulness at voir dire, 14 u. pa. j. const. l. 537 (2011) (arguing that the jurors are likely to be unaware of or unwilling to admit racial biases during voir dire, and that racism in the deliberations—as opposed to during the trial itself—would be largely unobservable by non-jurors because of existing protections for deliberative secrecy). 99 546 f.3d 1230 (10th cir. 2008). 100 id. at 1231-32 (describing how the foreman told the jury that “[w]hen indians get alcohol, they all get drunk,” and that “when they get drunk, they get violent.” when a juror protested that not all indians get drunk, the foreman responded “yes, they do.” several other jurors nodded along, or indicated agreement with the statement. in another instance, the juror overheard several other members of the jury agreeing that they needed to “send a message back to the reservation.”). 101 id. at 1233. interestingly, the court also noted: “we do not deny that the jurors’ alleged statements were entirely improper and inappropriate. the statements about native americans in particular were gross generalizations built upon prejudice and had no place in the jury room. impropriety alone, however, does not make a statement extraneous.” 102 id. 42 color in the “black box” vol. 5.1 that would all be undermined by a barrage of postverdict scrutiny.”103 the seventh circuit has also adopted this approach for largely the same reasons.104 not all circuits have adopted this approach, however. in u.s. v. villar, the first circuit addressed the same question on a nearly identical fact pattern.105 villar, a hispanic man, was convicted of bank robbery by a jury. shortly after the jury handed down the verdict, one of the jurors emailed villar’s counsel about racially charged statements made by another juror during deliberations.106 upon villar’s motion for a court inquiry into the verdict, the district court looked to the text of rule 606(b) and found that the unambiguous text barred consideration of the juror’s email. on appeal, the first circuit agreed that the juror’s email could not be considered under rule 606(b). however, the court went on to reverse the lower court’s decision and remand for a new trial on sixth and fourteenth amendment grounds. allegations of racial bias, according to the court, so severely compromised the jury’s impartiality that it independently violated the sixth amendment.107 further, given the racial nature of the bias, the court found that such comments implicated the fourteenth amendment's due process clause.108 under this framework, race is categorically different; the court expressed concern that the tanner safeguards—voir dire, conduct in the courtroom, and juror reports before the handing down of a verdict—would do little to combat racism in the deliberation process: while individual pre-trial voir dire of the jurors can help to disclose prejudice, it has shortcomings because some jurors may be reluctant to admit racial bias. in addition, visual observations of the jury by counsel and the court during trial are unlikely to identify jurors harboring racial or ethnic bias. likewise, non-jurors are more likely to report inappropriate conduct-such as alcohol or drug use-among jurors than racial statements uttered during deliberations to which they are not privy. thus, the court found, no other procedural safeguards could weed out invidious racial bias from entering into the courtroom. 606(b) was declared unconstitutional insofar as it conflicted with the sixth and fourteenth amendment rights of a defendant.109 103 id. at 1234. 104 see shillcutt v. gagnon, 827 f.2d 1155, 1158 (7th cir. 1987). importantly, however, the court said in dicta that 606(b) “cannot be applied in such an unfair manner as to deny due process.” id. at 1159. this suggests that, were a more severe case of racial bias in a jury to come up, the seventh circuit may adopt the reasoning of the first and ninth circuits. 105 586 f.3d 76, 78 (1st cir. 2009). 106 id. petitioner alleged, and indeed the state conceded, that a juror said “i guess we’re profiling but they cause all the trouble.” 107 id. at 86. 108 id. at 87. 109 while no other federal circuits have weighed in on this question, districts within the second circuit have previously indicated their agreement with the first circuit’s approach in villar. see, e.g., wright v. united states, 559 f. supp. 1139, 1151 (e.d.n.y. 1983), aff’d, 732 f.2d 1048 (2d cir. 1984) (rejecting petitioner’s motion, but suggesting that “if a criminal defendant could show that the jury was racially prejudiced, such evidence could not be ignored without trampling the [s]ixth [a]mendment's guarantee to a fair trial and an impartial jury.”); tobias v. smith, 468 f. supp. 1287, 1290-91 (w.d.n.y. 1979) (requiring evidentiary hearing because alleged racial comments were “sufficient to raise a question as to whether the jury's verdict was discolored by improper influences and that they [were] not merely matters of jury deliberations. . . . there should be no injection of race into jury deliberations and jurors who manifest racial prejudice have no place in the jury room.”). the ninth circuit has been asked to address this question as well, and has taken a somewhat different approach. in united states v. henley, 238 f.3d 1111, 1120 (9th cir. 2001), the court held that rule 606(b) does not bar inquiries into racial bias because the rule could not apply to questions of mental bias. writing for the unanimous panel, judge reinhardt explained that “racial prejudice is plainly a mental bias that is 2014 columbia journal of race and law 43 this past term, the supreme court granted certiorari from the eighth circuit to address the related question of whether rule 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.110 though the facts of the case itself are not about racial bias, amici have raised the race question for the court’s consideration.111 this note suggests that, in rendering its decision, the court should consider some of the social realities of criminal trials and the role of race in contemporary criminal justice, the subject of part iv. v. moving forward: empirical realities of a trial other commentators have analyzed this split, positing various reasons for why the issue should be resolved to allow post-conviction inquiry into juror racial bias. a main point of their critiques, however, has been that the constitutional protections put forth by the tanner court are particularly insufficient in the context of racial bias.112 much of the literature on the subject this far seems to echo this concern.113 as mentioned above, the tanner majority identified four key safeguards that rendered inquiry into internal juror misconduct unnecessary: (1) voir dire, (2) observations of the jury by counsel and the court during trial, (3) opportunities for jurors to report inappropriate juror behavior prior to rendering a verdict, and (4) the admissibility of non-juror testimony as to the misconduct.114 in the context of racial bias, scholars argue, none are effective. aside from the limits on its usage discussed above, voir dire is unlikely to uncover racial bias. as an initial matter, voir dire is usually performed by the judge, not defense counsel.115 without an incentive to advocate for a defendant, judges are less likely to inquire into juror racism. even where counsel is permitted to conduct the questioning, strategic considerations may advise against doing so. the effects of bringing racial bias up are unpredictable at best; often, such questioning will simply draw more attention to the defendant's race or ethnicity, increasing the effect of race on the trial.116 finally, even when the questions are asked, they are unlikely to actually uncover anything. given the level of generality with which courts ask questions during voir dire, a juror’s subtler biases may easily go undetected. as sherri lynn johnson has pointed out, “[a]sking a general question about impartiality and race is like asking whether unrelated to any specific issue that a juror in a criminal case may legitimately be called upon to determine. it would seem, therefore, to be consistent with the text of the rule, as well as with the broad goal of eliminating racial prejudice from the judicial system, to hold that evidence of racial bias is generally not subject to rule 606(b)'s prohibitions against juror testimony.” id. 110 warger v. shauers, 134 s. ct. 1491 (2014), granting cert. to 721 f.3d 606 (8th cir. 2014). 111 brief for nat’l assoc. of crim. defense lawyers as amicus curiae supporting petitioners, warger, no. 13517 (june 3, 2014). 112 rabin, supra note 98, at 549-53. 113 see, e.g., brandon c. pond, note, juror testimony of racial bias in jury deliberations: united states v. bennally and the obstacle of federal rule of evidence 606(b), 2010 b.y.u. l. rev. 237 (2010) (explaining why the procedural safeguards suggested by the tanner court are particularly poor protections in the context of racism); bauman, supra note 9, at 79697 (emphasizing the shortcomings of the tanner procedures in the context of implicit bias); dov fox, neuro-voir dire and the architecture of bias, 65 hastings l.j. 999, 1010-13 (2014) (discussing the emerging psychological evidence that in many cases, bias cannot be consciously recognized); jessica l. west, 12 racist men: post-verdict evidence of jury bias, 27 harv. j. racial & ethnic just. 165, 187-89 (2011) (pointing out the difficulty of uncovering bias in voir dire). 114 tanner, 483 u.s. at 127. 115 1 fed. jury prac. & instr. § 4:7 (6th ed.). 116 see ted a. donner & richard k. gabriel, jury selection strategy and science §33:1, (3d ed. 2000) (“race and gender bias may be appropriate reasons for excusing prospective jurors, but the subjects should probably not be specifically addressed, in any voir dire, unless the facts of the case suggest that racism could be a dispositive factor . . . on the other hand, whenever a prospective juror uses a choice of terms that suggest a tendency to racial or gender bias, attorneys should weigh the possibility of exposing such a bias through further questions against the effect of such an examination on other jurors.”). 44 color in the “black box” vol. 5.1 one believes in equality for blacks; jurors may sincerely answer yes, they believe in equality and yes, they can be impartial, yet oppose interracial marriage and believe that blacks are more prone to violence.”117 thus, to the extent that voir dire relies on individuals being aware of and admitting to their own biases, it is unlikely to uncover more subtle forms of discrimination that jurors may harbor. critics of the tanner safeguards also note that racial bias, unlike juror intoxication or other misconduct like that observed in tanner, is not easily observed by the court or either party. it is difficult, if not impossible, to ascertain a silent jury’s racial beliefs just by looking at its members during the trial. even where such racism can somehow be observed, the standard of proof is often insurmountably high. in united states v. abcasis, a defendant convicted of various narcotics-related offenses sought post-trial relief after his counsel claimed to have observed a juror making “mocking gestures” and anti-semitic remarks to her fellow jurors.118 even accepting counsel's allegations as true, the court denied relief. for a new trial, the court held, the defendant would have to show not just that the juror harbored bias, but that she had actually been influenced by that bias in the deliberation itself.119 it is difficult to imagine how an attorney, viewing the jury only during the trial itself, could ever meet this burden. without the ability to observe the jurors in the deliberative process, one cannot prove that racial bias was actually used in the deliberation. this same problem would prevent jurors from effectively policing each other; jurors are not able to discuss the case with each other until the deliberations themselves, so it would be quite difficult for one juror to identify a peer/s racial bias in the context of the case before the deliberations. while these arguments are all compelling, they present a series of complications that would make them difficult to argue in front of a court. most of the objections rabin and other scholars like her raise are equally applicable to other forms of bias; difficulty of observation will be a problem whenever a juror's internal thoughts or beliefs are at issue. thus under this approach, no principled reason exists to allow questioning of racial bias while disallowing questioning as to any other form of internal bias. it is unlikely that courts would be willing to use this rationale to allow questions as to any and all forms of bias, fearing that such a result would effectively undercut the entire purpose of rule 606(b). the need for proof that bias operated in the deliberations themselves would be equally difficult for other types of bias as well. this high burden of proof renders most allegations of bias or prejudice nearly impossible to prove. while voir dire may be particularly difficult in the context of race, the fundamental challenge remains the same for other forms of bias: people are often unwilling to admit their prejudices, or are simply unaware of them. as most psychologists today agree, bias operates in subconscious ways; implicit prejudices are often not consciously recognized by their holders, but can impact behavior in profound ways that can alter the course of a criminal trial.120 given how brief the voir dire period usually is, short and straightforward questions are all that most judges and attorneys will be able to ask.121 few people would respond to these questions is a way suggesting bias, although they could hold deeply prejudiced views.122 a more persuasive rationale for exempting race from 606(b)'s categorical bar on post-conviction juror testimony about the deliberative process lies in the very rationale posited for the rule itself: 117 sheri lynn johnson, black innocence and the white jury, 83 mich. l. rev. 1611, 1670 (1985). 118 811 f. supp. 828, 830 (e.d.n.y. 1992). 119 id. at 835 (“[e]vidence of bias may be sufficient to establish a constitutional violation if there is 'clear and incontrovertible' or 'substantial if not wholly conclusive evidence' that it was 'more likely than not' that a juror was biased and that his bias affected the actual deliberations.”). 120 see generally anthony s. greenawald & linda hamilton krieger, implicit bias: scientific foundations, 94 calif. l. rev. 945 (2006) 121 johnson, supra note 117, at 1673. 122 id. 2014 columbia journal of race and law 45 institutional legitimacy. while the past century has seen massive improvements in racial minorities' treatment in the american criminal justice system, it is hard to deny that inequity, persecution, and racism still permeate all levels of the process. from disparate policing practices to unequal prosecution rates, from biased convictions to uneven sentencing to rampant prison abuses, young black and latino men still suffer by virtue of their race.123 the supreme court's unwillingness to address these issues with anything more than empty, albeit sympathetic, rhetoric has not given them much hope; indeed, when confronted with clear evidence that such problems exist, courts have turned a blind eye. such indifference has delegitimized the courts in the eyes of communities of color. a strict textual enforcement of rule 606(b) would thus undercut the very policy reasons for its adoption. a. race in criminal justice: rhetoric vs. reality the reconstruction amendments to the united states constitution had the collective effect of guaranteeing legal and political equality to all citizens of the united states regardless of color. particularly in the context of juries, the supreme court interpreted this promise to mean that criminal defendants of all colors possessed the same right to an impartial jury. in the canonical case of strauder v. west virginia, the court held that a defendant's right to a fair trial was violated by a statute categorically barring black men from serving on juries.124 writing for the unanimous court, justice strong determined: [t]he constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. the very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. 125 justice strong went on to note particularly that the potential for prejudice in the jury ran high, warning that “prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.”126 a categorical exclusion of blacks from juries was impermissible partially because it exacerbated the potential for this prejudice. this principle was reiterated in batson v. kentucky, where the court emphasized the important goal of “eradicat[ing] racial discrimination in the procedures used to select the venire from which individual jurors are drawn.”127 “competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial,” the court reasoned, and racial bias had no part in such a system.128 thus, while the holding focused purely on racism in the peremptory strike process, the court's opinion strongly suggested that such racial bias was as improper in the juror's mind as it was in the prosecutor's. reiterating the central concerns of judicial legitimacy, the court warned that such biases “undermine public confidence in the fairness of our system of justice.”129 123 see generally coramae richey mann, unequal justice: a question of color 129-219 (1993) (discussing different outcomes for communities of color and white communities in criminal justice processes); thomas m. uhlman, racial justice: black judges and defendants in an urban trial court 13 (1979); david cole, the paradox of race and crime: a comment on randall kennedy's “politics of distinction”, 83 geo. l.j. 2547 (1995); developments in the law -race and the criminal process, 101 harv. l. rev. 1472 (1988). 124 100 u.s. 303, 305 (1879). 125 id. at 308. 126 id. at 309. 127 476 u.s. 79, 85 (1986). 128 id. at 87. 129 id. 46 color in the “black box” vol. 5.1 as much as these statements suggest a commitment towards full racial equality in the courtroom, racism and implicit bias are still disturbingly common at all levels of the justice system. from the earliest points of law enforcement, racial minorities are disproportionately targeted. police units are frequently deployed in heavily minority neighborhoods simply without reason.130 professor ian ayres has conducted an extensive study in the context of southern california, surveying the methods and incidence of routine pedestrian and motor vehicle stops (searching for weapons or drugs) in the greater los angeles metropolitan area in the period between july 2003 and june 2004. even after correcting for potential error, the results were shocking: per 10,000 residents, the stop rate for blacks was found to be 3,400 stops higher than that for whites, while the stop rate for latinos was nearly 360 stops higher than that for whites.131 given that contemporary estimates suggest that blacks represent just 12% of monthly drug users,132 this disparity makes little sense. beyond the disproportionate targeting, however, professor ayres' research convincingly demonstrated that the stops were highly inaccurate, and indeed were unlikely to uncover anything at all. when compared to frisked whites, frisked blacks were 42.3% less likely to be found carrying a weapon, while frisked latinos were 31.8% less likely to be so found. 133 thus, the disproportionate targeting of black and latino persons in los angeles made stops ultimately less likely to uncover anything. when stopped subjects consented to the searches, the numbers were similar: consensual searches of blacks were 37.0% less likely to uncover weapons, 23.7% less likely to uncover drugs, and 25.4% less likely to uncover anything else.134 consensual searches of latinos were similarly ineffective: such searches were 32.8 less likely to uncover weapons, 34.3% less likely to uncover drugs, and 12.3% less likely to uncover anything else.135 despite these numbers, stopped blacks were 29% more likely, while stopped latinos were 32% more likely, to be arrested that stopped whites.136 such statistics are not merely a factor of racism in a particular police force or a particular context; the recent controversy over the new york police department's stop-and-frisk program demonstrates the same racial disparities. for every year the program operated, over 80% of the “suspicious” persons stopped were young black or latino persons.137 weapons were seized in only 1% of stops of blacks, and 1.1% of stops of latinos.138 similarly, contraband materials other than weapons were recovered in just 1.8% of blacks and 1.7% of latinos.139 once targeted by police forces in such racially disparate ways, black and latino people face starkly different rates of prosecution. given how much discretion is afforded to prosecutors in their decisions whether to prosecute certain offenders, these determinations are almost never subject to review. professor sonja b. starr has studied how this discretion contributes to racial inequalities in the criminal justice, showing that black defendants are routinely charged with harsher sentences across all vectors.140 when 130 andrew guthrie ferguson & damien bernache, the high-crime area question: requiring verifiable and quantifiable evidence for fourth amendment reasonable suspicion analysis, 57 am. u. l. rev. 1587 (2008) (discussing the difficulties of quantifying and reliably designating areas as “high risk” or “high crime”). 131 ian ayres & jonathan borowsky, a study of racially disparate outcomes in the los angeles police department (2008), available at http://www.aclusocal.org/issues/police-practices/racially-disparateoutcomes-in-the-los-angeles-police-department/. 132 criminal justice fact sheet, naacp, http://www.naacp.org/pages/criminal-justice-fact-sheet (last visited mar. 13, 2014). 133 ayres, supra note 131, at 26. 134 id. 135 id. at 27. 136 id. 137 stop-and-frisk data, new york civil liberties union, http://www.nyclu.org/content/stop-and-friskdata (last visited sept. 26, 2014). 138 floyd v. city of new york, 959 f. supp. 2d 540, 558 (s.d.n.y. 2013). 139 id. 140 sonja b. starr & marit rehavi, mandatory sentencing and racial disparity: assessing the role of prosecutors and the effects of booker, 123 yale l. j. 2 (oct. 2013). 2014 columbia journal of race and law 47 blacks and whites committed nearly identical crimes, prosecutors were more than twice as likely to charge black defendants with offenses carrying higher minimum sentences.141 finally, despite narratives of color-blind justice, racism is often overt in the trial itself. in u.s. v. calhoun, the fifth circuit addressed the question of whether or not a prosecutor's racist statements to a jury constituted clear error.142 defendant, an african american man, was on trial for drug-related offenses. during the course of the trial, the state prosecutor said to the jury: “you've got african–americans, you've got hispanics, you've got a bag full of money. does that tell you—a light bulb doesn't go off in your head and say, 'this is a drug deal'?”143 the message of the question was clear: calhoun, by virtue of his race, was more likely to be involved in a cocaine conspiracy. yet the fifth circuit refused to hold that such a statement was prejudicial to calhoun. because “the improper racial overtone of the question was isolated” and the question “focused on the presence of the large sum of money rather than the race of the participants,” calhoun had not been significantly prejudiced.144 further, the court instructed the jury “that the statements and arguments of the attorneys were not evidence and that the verdict must be based only on the evidence.” 145 while concurring judges noted that “the prosecutor’s racial remark was unquestionably improper,” nobody dissented as to this conclusion. the calhoun decision shows how unwilling courts are to accept that the ugly specter of racial bias works in subconscious ways. such overt racism is, unfortunately, far from uncommon.146 thus racial bias, in the subtle form of implicit bias, pervades the criminal justice process. it has been clearly established that broad discretion afforded to each of the above mentioned actors in the criminal justice system results in heavily racialized patterns of incarceration.147 most of these decisions, however, are likely not made from a conscious form of racism. disaggregating intent from the definition of racism reveals that most americans are socialized to exhibit automatic preferences for white people and automatic biases towards black and latino people.148 jurors are far from immune to this process. allegations of juror bias permeated the discussion of george zimmerman's notorious trial just this past year.149 importantly, this bias is often subconscious. in one of the first large-scale surveys that studied the phenomenon of juror bias, johan m.g. van der dennen developed the theory that juries 141 id. at 29. 142 478 fed. app’x 193 (5th cir. 2012), cert denied, 113 s. ct. 1136 (2013). 143 id. at 195. 144 id. at 195. 145 id. 146 see, e.g., state v. jackson, 520 n.w.2d 291 (wis. 1994) (juror allegedly said “eenie, meenie, minie, moe, catch a n----r by the toe.”); state v. brye, 1993 wl 525057 at *1 (conn. dec. 10, 1993) (at trial, a juror said “i know ‘that neighborhood’ better than anyone and i'm sure he is guilty;” “the defendant was simply not worth all this time and trouble;” and “joan, he's an animal; don't you want his kind off the street? he should be put away for a long time or he'll get out and come after us. aren't you afraid?”); ex parte guzmon, 730 s.w.2d 724 (tex. crim. app. 1987) (counsel referred to her own client as a “wetback”); callins v. collins, 998 f.2d 269 (5th cir. 1993) (venireman referred to the defendant as a “n----r”). 147 ayres, supra note 131, at 32; marc maurer, justice for all? challenging racial disparities in the criminal justice system, human rights magazine, vol. 37 no. 4, (fall 2010); jerry kang et. al., implicit bias in the courtroom, 59 u.c.l.a. l. rev. 1124, 1135-37 (june 2012). 148 devon carbado, kimberle crenshaw, cheryl i. harris & valerie purdie-vaughns, race undercover: the matter of bias in the zimmerman trial, huffington post blog (august 7, 2013, 2:21 pm), http://www.huffingtonpost.com/devon-carbado/race-undercover-the-matte_b_3715071.html. 149 see tom foreman, analysis: the race factor in george zimmerman’s trial, cnn (july 15, 2013, 9:10 am), http://www.cnn.com/2013/07/14/justice/zimmerman-race-factor/. george zimmerman was charged with murder for shooting the 17-year old trayvon martin. he was acquitted by a jury of six who found that he had acted in self-defense under florida's stand-your-ground law, which allows an individual to use lethal force in response to a reasonable belief that lethal force is about to be used upon them. 48 color in the “black box” vol. 5.1 subconsciously perform a sort of in-group selection, favoring defendants to whom they relate.150 thus, white jurors were more likely to sympathize with and acquit white defendants, while black jurors were more likely to favor black defendants. a key point in van der dennen’s study was the insight that “an individual will discriminate against a member of an out-group even when there is no conflict of interest and there is no past history of intergroup hostility . . . .”151 thus conscious animus is not a necessary component to biased decision-making.152 the stand-your-ground laws at issue in zimmerman's trial are always applied in racially disparate ways: whites who kill blacks are over four times as likely to be exonerated under stand-your-ground protections as blacks who kill whites in the same jurisdictions.153 in states in which the death penalty is used, a famous study by david baldus demonstrated that the death penalty was applied in twenty-two percent of murders involving black murderers and white victims, but only three percent of murders involving white murderers and black defendants.154 when confronted with such drastic disparities in mccleskey v. kemp, however, the supreme court refused to find undue racial bias.155 such disparities are not limited to the criminal context; in civil cases, studies have shown that black plaintiffs are significantly less likely to win their cases, while black defendants are significantly more likely to lose.156 thus, while jurors may not recognize their biases, empirical studies seem to show that they administer “justice” in an extremely racially disparate manner. b. distrust in the system academics have recently begun developing theories of compliance with the law that focus on legitimacy. procedural justice, or the fairness of the manner in which authorities exercise their authority, is one of the most important factors in shaping individuals’ views on a legal system’s legitimacy.157 when communities feel a sense of procedural justice in their interactions with the criminal justice system, studies show, they are more likely to . . . cooperate, comply, and accept the state’s monopoly on the use of force . . . . feelings of trust and confidence in the police and courts—and a willingness to defer to their instructions—generate the belief that authorities have the right to define appropriate behaviour; encourage the perception that authorities are justified in expecting feelings of obligation and responsibility from citizens; and strengthen identification with the goals, motives, and moral purpose of legal authorities.158 150 johann m.g. van der dennen, ethnocentrism and in-group/out-group differentiation: a review and interpretation of the literature, in the sociobiology of ethnocentrism 1, 17 (vernon reynolds et al. eds., 1987). 151 id. 152 id. van der dennen posits several theories of why such bias may exist, including realistic conflict theory, evolutionary theory, sociopsychological theories, frustration-aggression-displacement theory, group narcissism theory, reference group theory, and many others. for an exhaustive list of possible explanations, and an explanation of each one, see id. at 10-16. 153 john k. roman & shebani rao, the logic of racial disparities, real clear policy (july 19, 2013), http://www.realclearpolicy.com/articles/2013/07/19/the_logic_of_racial_disparities__575.html. 154 mccleskey v. kemp, 481 u.s. 279, 286 (1987). 155 mccleskey, 481 u.s. 279. 156 robert j. maccoun, getting inside the black box: toward a better understanding of civil jury behavior, rand corp. 1 (1987), available at www.rand.org/content/rand/pubs/notes/2009/n2671.pdf. 157 tom r. tyler & jonathan jackson, future challenges in the study of legitimacy and criminal justice, in legitimacy and criminal justice: an international exploration 83, 84 (justice tankebe, j. & alison liebling eds., 2013). indeed, tyler and jackson introduce statistical evidence that suggests that procedural justice is more important in preserving institutional legitimacy than actual performance. id. at 84-85. 158 id. at 88. 2014 columbia journal of race and law 49 thus, community members are more likely to engage and cooperate with criminal justice actors and accept the entire system as a valid exercise of state power when they feel the system treats them fairly.159 unfortunately, as discussed above, black and latino communities often find themselves disadvantaged in the criminal justice system in ways that delegitimize law enforcement in their eyes. such delegitimizing effects are also at work in the courthouse. professor peggy davis has extensively described the effects of subconscious racial biases on defendants of color. davis characterizes the law as a system of subtle racial hierarchies which act as a series of microaggressions—“…subtle, stunning, often automatic, and non-verbal exchanges which are 'put downs' of blacks by offenders.”160 decisions such as mccleskey and zimmerman do nothing but reify colored communities' perceptions of the law as maintaining a status quo of racial hierarchy. from the minute black and latino persons enter the courthouse, davis posits, they are subjected to a series of unconscious and unspoken assumptions. take, for instance, the story of john t. harvey, iii. in 1992, harvey was assigned to defend a black man charged with assault with intent to murder in front of a white judge. on june 11, harvey showed up in front of the judge wearing a suit adorned with a small kente cloth, a multicolored woven cloth traditionally worn by african royalty and adopted in the 1960s by the black community in america as a symbol of racial pride. upon seeing harvey, the judge warned that harvey would not be allowed to wear the cloth in front of the jury for fear that it would send “a hidden message to jurors.”161 harvey was later removed from the case.162 while the judge was concerned about propriety and distraction in the trial, the decision to remove harvey as counsel sent a clear message: any hint of “africanness” was just a distraction, and had no place in the courthouse. black defendants and black jurors in particular feel silenced by such microaggressions, and blacks consequently lose faith in what they see as a broken system. these microaggressions have the net effect of breeding a deep distrust of the criminal justice system in communities of color. the stop snitchin’ campaign, popularized in late 2004 by baltimore filmmaker rodney bethea, was one manifestation of this wariness. the campaign focused on convincing urban black arrestees to stop cooperating with police in exchange for leniency.163 from its outset, the movement’s racial undertones were clear.164 this message had similarly found acceptance in black and latino subcultures; hip hop culture began to shift, reflecting a belief that something was fundamentally wrong with the criminal justice system.165 159 see generally tom r. tyler & jeffrey fagan, legitimacy and cooperation: why do people help the police fight crime in their communities?, 6 ohio st. j. crim. l. 231, 263 (fall 2008). 160 peggy c. davis, law as microaggression, 98 yale l. j. 1559, 1565 (1989) (citing pierce, psychiatric problems of the black minority, in american handbook of psychiatry 66 (s. arieti ed. 1974)). 161 black d.c. atty. is at odds with judge over kente cloth, jet, june 22, 1992, at 35. 162 id. 163 paul butler, let’s get free: a hip-hop theory of justice, 85-87 (2009). 164 ‘stop snitching’ movement confounding criminal justice (npr broadcast may 8, 2008), available at http://www.npr.org/templates/story/story.php?storyid=90280108 (“what is really going on is that, after centuries of bad treatment at the hands of the outside world, and law enforcement is part of that outside world, most recently enormously exacerbated by 20 years of drug enforcement and a mass incarceration policy in this country. it has become mainstream thought in many minority, especially african-american communities, that law enforcement is the enemy, and good people do not treat with the enemy. so this is not primarily fear, and it's not primarily recent, you know, special cultural influences. again, those things matter. but this is mostly the price we're paying for american history and especially for having 2.2 million people in prison, most of them drawn from very troubled neighborhoods. they're mad, and they're disengaging.”). the movement gained national attention when new york rapper cam’ron discussed his refusal to cooperate with police in an interview on 60 minutes. 60 minutes: stop snitchin’ (cnn television broadcast apr. 22, 2007). 165 butler, supra note 163, 124-25. 50 color in the “black box” vol. 5.1 indeed, scholars have argued that the pervasive racism in the criminal justice system has left black with only one option: race-based jury nullification. 166 given the disproportionate policing and incarceration rates for black defendants in drug-related offenses, butler calls for all black jurors to uniformly find black defendants not guilty in non-violent crimes.167 the reasons for this are twofold: first, butler argues, the current state of disparate policing and prosecution has led to imprisonment of large swaths of the young black male population.168 entirely excising such a large segment of the community has spillover consequences; communities stay poor, children grow up without parents, and cycles of crime and poverty continue. second, and more radically, butler suggests that the criminal law itself is an instrument of white supremacy.169 laws written, enforced, and adjudicated by white people cannot ever adequately govern the needs and realities of life for black america. such a system, butler claims, is worthy of no deference. although a depressing view of the prospects of black defendants, butler's arguments are not wholly unfounded. laws such as the sentencing reform act and its disparate treatment of crack and powder cocaine are evidence of the ways in which laws are written to disadvantage communities of color independent of their administration. this, combined with the sorts of implicit bias discussed above, means black defendants are inherently at a disadvantage in any sort of legal proceeding. several other scholars have picked up on this idea, calling for all communities of color to engage in similar race-based nullification.170 while these proposals have both merits and drawbacks that can be debated at length, the very fact of their existence is meaningful. such calls speak volumes to these communities' perceptions of the law and legal system. this is the central hypocrisy of american legal thought on jurors; while courts have been nearly entirely focused on preserving the law's legitimacy in interpreting various rules governing jury secrecy, their refusal to protect defendants of color against racial bias in jury deliberations has in fact caused a deep distrust of the law enforcement system in communities of color. in the context of rule 606(b), courts’ refusal to allow questioning into allegations of racial bias in the deliberative process—lauded by courts as a great defender of the legitimacy of the deliberations—has actually had the converse effect, delegitimizing courts in minority communities. decisions like bennally can be seen as further microaggressions; they send clear messages that the institution of “law” does not care about the concerns about minority communities. if the supreme court hears a case dealing with this question, it should continue to focus on the legitimacy of the jury system. however, if should be sure to bear in mind: legitimacy to whom? thus, the court should amend the federal rules of evidence to create an express fourth exception for allegations of racism in the deliberative process in the name of institutional legitimacy. opponents of such an amendment of fre 606(b) need not fear about opening the pandora's box of never-ending challenges to valid verdicts. in every case that has addressed the issue so far, petitioners have only raised their claims once a member of the jury actively reached out and alerted them of racist comments or behaviors that took place. if such a limit were imposed as a matter of law, petitioners could only challenge their convictions by asserting racial bias after a juror independently contacted the petitioner or her lawyer describing racist behavior in the deliberation process. it seems unlikely that this would seriously upset the stability of trial verdicts; the rarity of such an occurrence is reflected in the paucity of 166 paul butler, racially based jury nullification: black power in the criminal justice system, 105 yale l. j. 677 (1995). 167 id. at 679-680, 717-718. 168 id. 169 id. 170 see, e.g., long x. do, jury nullification and race-conscious reasonable doubt: overlapping reifications of commonsense justice and the potential voir dire mistake, 47 ucla l. rev.1843 (2000); richard r. w. brooks, fear and fairness in the city, 73 s. cal. l. rev. 1219 (2000). 2014 columbia journal of race and law 51 cases that actually deal with this question at all.171 opponents who take the opposite critique—that the benefits of this additional safeguard would be de minimis—are likely correct; requiring a juror to independently contact the defendant with evidence of deliberative racism before allowing the motion would severely limit the number of successful claims brought. however, given the importance of eliminating all racial prejudice from the courtroom, these incremental benefits would be worth pursuing, especially given the relatively low costs of implementing such procedures. the arguments in this note may seem to beg the question of what makes racial bias in the deliberative process unique—that is, if racial bias is such a problem in society, why is this note limiting its discussion to just rule 606(b), rather than addressing arguably more common problems, such as racialized policing or discriminatory prosecution? the answer lies in the history discussed above. while it is true that racial bias pervades the criminal justice process, few other procedural protections exist almost exclusively to preserve the legitimacy of a jury trial. this note does not suggest a complete restructuring of the trial system; rather, it limits its suggestions to the context of fre 606(b). while it would be naïve to view this narrow determination as a panacea to the racism that permeates the criminal justice system, the unique purpose of 606(b)—preserving legitimacy—makes it particularly important to think about bias in this context. given the court’s express commitment to using 606(b) to legitimize jury trials and jury verdicts, the delegitimizing effects of racism in deliberations are particularly troubling. as defendants of color are already subject to such disparate forms of “justice” as a result of the implicit bias discussed above, the trial system should seek to minimize further harms worked by overt racism demonstrated in the deliberative process. while communities of color are subject to disparate treatment in society on a daily basis, the trial process should be examined even more stringently for evidence of possible racism. nowhere else are determinations of an individual's most fundamental liberties trusted to a body of twelve strangers. vi. conclusion as the history of american jurisprudence, legislative history, and subsequent judicial interpretations show, the core purpose of rule 606(b) of the federal rules of evidence was to instill confidence in the jury system. this note has sought to demonstrate the historical reasons for such a rationale by tracking the evolution of trials through medieval england. in shifting from the trial by ordeal to the modern trial by jury, courts gave up the divine backing that had previously rendered verdicts unassailable. no longer was god the decisionmaker, weighing in on a criminal defendant's guilt or innocence. such decisions were now to be rendered by twelve ordinary members of the community. this new, more fragile system needed credibility; to lend credence to verdicts delivered by man instead of god, american courts developed procedural safeguards to guarantee jury secrecy. federal rule 606(b) was born from this sentiment, from this very desire to preserve jury legitimacy by shrouding the process in secrecy. courts interpreting the rule have admitted this, indeed prioritizing it over a “correct” outcome in many cases. yet these concerns of institutional legitimacy have thus far been limited to the attitudes of mainstream white society; jurisprudence on the subject has repeatedly failed to acknowledge and address the problems of racial bias that pervade all aspects of the american criminal justice system. by tracing the use of voir dire to examine racial bias in a jury through history, this note has shown that defendants of color are left effectively powerless to challenge the very real impacts of race on their trials. this, when combined with other lines of jurisprudence that show courts' unwillingness to recognize implicit bias 171 indeed, only the seven cases discussed in this note seem to have arisen out of a juror approaching the defendant without any sort of prompting or independent questioning. pandora's box could not have been opened for only four cases to arise in the entire 50-year period since the adoption of the federal rules of evidence. 52 color in the “black box” vol. 5.1 pervasive in modern criminal justice, has delegitimized the entire system in the eyes of communities of color. calls for extreme measures such as race-based jury nullification show that such communities have no faith in the system's ability to render fair verdicts. to combat this increasing disillusionment with a system purported to be the hallmark of justice, courts should take greater efforts to combat racism in juries. given the limits placed on the use of voir dire (as well as those inherent in the process itself), rule 606(b) stands alone today as the only process by which defendants can weed out racism from jury deliberations, already a particularly difficult process to review in any capacity. resolving the tension between rule 606(b) of the federal rules of evidence and the fourteenth amendment in a way that foregrounds a commitment to true racial equality would help generate fair trials and bolster institutional legitimacy in the eyes of the most marginalized. till then, however, our jurisprudence will remain dishonest; courts will remain focused on jury legitimacy in the eyes of whites alone. microsoft word cjrl guzman f18.docx roe on the rez: the case for expanding abortion access on tribal land heidi l. guzmán0f * while the courts have codified and reaffirmed the right to abortion, some state legislatures have enacted increasingly burdensome restrictions on abortion. in a number of states, there is only one abortion clinic available for thousands of people. this note explores whether native american tribes, as sovereigns, may establish holistic reproductive health clinics on tribal land. it analyzes abortion law in wisconsin under the framework of public law 280 jurisprudence to determine that clinics in indian country would not be subject to state abortion regulations. this note also explores the practical implications of a native-owned-and-operated clinic, and concludes that these clinics would greatly increase access to safe reproductive health care for native and non-native people. i. introduction ............................................................... 96 ii. tribal sovereignty and abortion through time .............................................................. 99 a. a legal history of inherent tribal sovereignty ..... 99 1. the termination era and public law 280 ...... 102 2. the current state of tribal sovereignty ........ 105 b. a brief summary of the supreme court’s abortion jurisprudence ........................................................ 106 c. historical and contemporary perspectives from native american people on abortion .................... 108 iii. abortion in wisconsin ............................................. 113 * j.d. candidate 2019, columbia law school; b.a. 2014, yale university. the author would like to thank professor carol sanger for her counsel throughout the note-writing process and professor shawn watts for his insights on the subject matter. the author would also like to thank the staff of the columbia journal of race and law for their editing assistance and contributions. finally, the author thanks her family, friends, and partner for their support, and cecilia fire thunder for her bravery and conviction. 96 columbia journal of race and law [vol. 9:1 a. the supreme court’s cabazon test to determine whether public law 280 grants states jurisdiction over conduct in indian country ............................ 114 1. abortion and abortion law in wisconsin ....... 115 2. the wisconsin government’s attitudes toward abortion and setting up the problem ............. 118 iv. the promise of abortion in indian country ........ 122 a. whether public law 280 grants wisconsin jurisdiction over abortions on tribal land .......... 122 b. whether congress would retaliate and what may happen next if it did ............................................ 126 1. the supreme court’s role should a challenge arise ................................................................. 129 c. whether the proposal is constitutional should roe be overturned ....................................................... 130 d. practical considerations for tribes that wish to undertake cecilia fire thunder’s proposal.......... 133 1. services a tribal clinic should provide .......... 135 2. tribes should consider permitting non-native people to seek care at a clinic........................ 136 e. recommendations for tribes that wish to undertake cecilia fire thunder’s proposal and benefits a clinic would confer to native women ....................................................... 138 v. conclusion ................................................................ 139 i. introduction in early 2006, the south dakota state legislature passed a near-total ban on abortions without exceptions for cases of incest or sexual assault.1 at that time (and to date), there was only one abortion clinic to service the entire state.2 1 women’s health and human life protection act, 2006 s.d. sess. laws ch. 119. a voter referendum later struck down the bill. monica davey, south dakotans reject sweeping abortion ban, n.y. times (nov. 8, 2006), https://www.nytimes.com/2006/11/08/us/politics/08issues.html [https://perma. cc/3clk-qv4v]. 2 south dakota governor signs abortion ban, nbc news (mar. 7, 2006), http://www.nbcnews.com/id/11699703/ns/politics/t/south-dakota no. 3:95] roe on the rez 97 concerned about the effects of the ban on her community, cecilia fire thunder, the first woman president of the oglala lakota3 tribe on the pine ridge reservation, vowed to open an abortion clinic on her tribe’s land.4 cecilia fire thunder imagined a full-service reproductive health clinic named sacred choices5 that would provide contraception, sexual education, and support for sexual assault victims.6 in response to fire thunder’s statements, south dakota attorney general larry long, known for his anti-abortion7 views,8 admitted that the federally recognized tribe was not required to follow state law, thus opening a path for a lawful abortion clinic on the reservation.9 for her part, fire thunder made clear that because the tribe was sovereign, south dakota had no jurisdiction to prohibit abortion on pine ridge.10 after several attempts, the all-male oglala tribal council ousted governor-signs-abortion-ban/#.wluw-zopnow [https://perma.cc/4xh8-ec 35]. 3 the oglala lakota are also known as the oglala sioux, the name under which the tribe was federally recognized. i refer to them as lakota as this appears to be the tribe’s preference. 4 hail cecilia fire thunder: a voice for women and the indian family, indian country today (nov. 17, 2004), https://indiancountry medianetwork.com/news/hail-cecilia-fire-thunder-a-voice-for-women-andthe-indian-family-2/ [https://perma.cc/58z3-a73a]. 5 fire thunder’s lightning, economist (june 29, 2006), http://www. economist.com/node/7119415 [https://perma.cc/kve5-m754]. 6 rose aguilar, the power of thunder, alternet (apr. 3, 2006), https://www.alternet.org/story/34314/the_power_of_thunder [https://perma.cc/ n42e-4y96]. 7 a note on language: typically, those against abortion refer to themselves as “pro-life.” i refer to them as anti-abortion, consistent with the language utilized in reproductive justice circles. i use the “pro-life” moniker when referring to a person’s self-identification. 8 see press release, office of the s.d. att’y gen., eighth circuit court reverses abortion decision, https://atg.sd.gov/ouroffice/media/pressre leasesdetail.aspx?id=412 [https://perma.cc/gu5t-tr23] (noting attorney general larry long’s frequent declarations opposing abortion). 9 the balt. sun, s.d. tribe may offer abortions, denv. post (apr. 1, 2006), https://www.denverpost.com/2006/04/01/s-d-tribe-may-offer-abortions/ [https://perma.cc/psn2-kcnj]. 10 tim giago, oglala sioux president on state abortion law, indianz.com (mar. 21, 2006), https://www.indianz.com/news/2006/013061 .asp [https://perma.cc/696c-yp6r]. 98 columbia journal of race and law [vol. 9:1 fire thunder from her presidency and subsequently banned all abortions on the reservation.11 this note asserts that tribes should consider establishing full-service reproductive health clinics on their sovereign land. despite the increasingly divided legal and social landscape of abortion, tribes may greatly expand access to safe and legal abortion for both their membership and the general public. courts have codified and reaffirmed the right to abortion.12 states may not impose an “undue burden” upon the right to choose, defined as a state regulation that places a substantial obstacle in the path of a woman seeking to terminate her pregnancy.13 however, some state legislatures have enacted increasingly burdensome restrictions on abortions. these restrictions include requirements that abortions be performed before a certain gestational age, limitations on the use of medicaid funds to pay for the procedure, state mandated counseling, and mandatory waiting periods.14 in kentucky, north dakota, south dakota, west virginia, and wyoming, there remains but one clinic in each state to service hundreds of thousands of women.15 on the federal level, justice anthony kennedy, a crucial swing vote on abortion, announced his retirement from the supreme court in june 2018,16 prompting critics to wonder if roe will be overturned.17 11 carson walker, tribal leader ousted over abortion clinic, wash. post (jun. 30, 2006), http://www.washingtonpost.com/wp-dyn/content/article/ 2006/06/30/ar2006063000700.html [https://perma.cc/5nac-fv94]. 12 see, e.g., planned parenthood of se. pa. v. casey, 505 u.s. 833, 851 (1992); roe v. wade, 410 u.s. 113, 153 (1973). 13 casey, 505 u.s. at 876. 14 an overview of abortion laws, guttmacher inst., https://www. guttmacher.org/state-policy/explore/overview-abortion-laws [https://perma.cc/9 re6-8f97]. 15 linley sanders, inside the states with one abortion clinic: kentucky fights for its last provider in 2018, newsweek (jan. 8, 2018), http://www.newsweek.com/state-without-abortion-clinic-kentucky-772692 [https://perma.cc/6pcw-h27f]. 16 michael d. shear, supreme court justice anthony kennedy will retire, n.y. times (june 27, 2018), https://www.nytimes.com/2018 /06/27/us/ politics/anthony-kennedy-retire-supreme-court.html [https://perma.cc/gz6r-m fca]. 17 victoria albert, anthony kennedy’s retirement has sparked a push to get iuds, daily beast (june 27, 2018), https://www.thedaily no. 3:95] roe on the rez 99 part ii will briefly discuss the legal history of tribal sovereignty, the supreme court’s abortion jurisprudence, and native american attitudes towards abortion. it will also introduce public law 280 (“p.l. 280”), the federal statute that grants states jurisdiction to legislate over certain conduct in indian country. in part iii, this note examines wisconsin’s government and abortion laws, because wisconsin has adopted p.l. 280 and the guttmacher institute identified it as a state hostile towards abortion.18 part iii explores whether wisconsin’s abortion statutes are regulatory or prohibitory in nature, as wisconsin would not have jurisdiction over a tribal clinic if its statutes are regulatory. part iv will conclude that p.l. 280 does not apply to tribes with regard to abortion, because wisconsin’s abortion statutes are regulatory. thus, tribes are free, within their rights as inherent sovereigns, to pursue fire thunder’s proposal. part iv will then consider whether congress would abrogate tribal sovereignty. this note concludes with a discussion of the benefits of tribal reproductive health clinics and recommendations for tribes wishing to execute fire thunder’s proposal. ii. tribal sovereignty and abortion through time a. a legal history of inherent tribal sovereignty pre-european contact, native american tribes were largely autonomous, self-governing entities.19 during the colonial period, europeans interacted with tribes as separate sovereigns.20 european governments and individual colo beast.com/anthony-kennedys-retirement-has-sparked-a-push-to-get-iuds [https://perma.cc/5s72-qwcc]. 18 the guttmacher institute, a research and policy organization committed to reproductive health and rights, declared that twenty-nine states were either hostile or extremely hostile to abortion rights in 2017. states hostile to abortion rights, 2017, guttmacher inst. (jan. 2, 2018), https://www.guttmacher.org/infographic/2018/states-hostile-abortion-rights-20 17 [https://perma.cc/m8qb-8vux]. 19 cohen’s handbook of federal indian law § 4.01[1][a], at 206 (nell jessup newton ed., 2012 ed. 2012) [hereinafter cohen’s handbook] (citing stephen cornell, the return of the native: american indian political resurgence 72–76 (1988)). 20 felix s. cohen, the spanish origin of indian rights in the law of the united states, 31 geo. l.j. 1, 13–14 (1942). 100 columbia journal of race and law [vol. 9:1 nists, for instance, engaged with tribes through official treaties.21 these pre-revolution patterns of engagement, in turn, influenced the fledgling united states’ relationship with tribes.22 in worcester v. georgia, one of the foundational decisions in the seminal marshall trilogy of indian law cases,23 justice marshall noted, “indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.”24 in worcester, the state of georgia had enacted statutes to assert jurisdiction over tribal land.25 the supreme court held that states could not interfere with or inhibit tribal sovereignty.26 only the federal government could act in such a manner pursuant to the indian commerce clause, which grants congress plenary and exclusive power over tribes.27 the treatment of native americans as distinct entities was partially founded upon racist and paternalistic notions about tribes’ savagery.28 as noted by justice marshall in cherokee nation v. georgia and johnson v. m’intosh, tribes were “fierce savages”29 from “[a] people once numerous, powerful, and truly independent . . . gradually sinking beneath our superior policy.”30 thus, despite possessing sovereignty, justice marshall reasoned that tribes should be considered “domestic dependent nations” whose “relation to the united states resembles that of a ward to his guardian.”31 the 21 russel lawrence barsh & james youngblood henderson, the road: indian tribes and political liberty 33 (1980). 22 cohen, supra note 20, at 16–21. 23 worcester v. georgia, 31 u.s. 515 (1832); see also cherokee nation v. georgia, 30 u.s. 1 (1831); johnson v. m’intosh, 21 u.s. 543 (1823). taken together, these cases form the foundation of federal indian law in american jurisprudence. 24 worcester, 31 u.s. at 559. 25 id. at 516. 26 id. at 538, 540. 27 united states v. lara, 541 u.s. 193, 200 (2004). 28 see robert a. williams, jr., like a loaded weapon: the rehnquist court, indian rights, and the legal history of racism in america 51–52, 72 (2005) (discussing white racial superiority under european law and racial judicial language in the marshall trilogy). 29 johnson v. m’intosh, 21 u.s. 543, 590 (1823). 30 cherokee nation v. georgia, 30 u.s. 1, 15 (1831). 31 id. at 13. no. 3:95] roe on the rez 101 supreme court has since reiterated the domestic dependent status of tribes.32 retaining sovereignty grants native american tribes certain benefits. these include sovereign immunity from suit,33 the power to determine their government structure and membership,34 the power to make substantive laws35 and tax members and nonmembers,36 the power to create court systems,37 and the power to exclude people from their territories.38 however, though tribes may create judicial systems and enact penal codes, the federal government retains jurisdiction over crimes committed on reservations by natives and non-natives.39 in 1883, the supreme court ruled in crow dog that tribal law governs crimes committed among native americans in indian country.40 in response, congress passed the indian major crimes act of 1885 (major crimes act), granting the federal government jurisdiction over an enumerated list of crimes committed among native americans, including murder, rape, and kidnapping.41 the court upheld the major crimes act in kagama, noting that it was necessary and constitutional because of tribes’ dependence on the federal government.42 tribes’ “very weakness and helplessness” granted the federal government “the duty of protection, and 32 see michigan v. bay mills indian cmty., 572 u.s. 782, 788 (2014); merrion v. jicarilla apache tribe, 455 u.s. 130, 141 (1982). 33 bay mills, 572 u.s. at 788. 34 santa clara pueblo v. martinez, 436 u.s. 49, 55–56 (1978). 35 cohen’s handbook, supra note 19, § 4.02. 36 washington v. confederated tribes of colville indian reservation, 447 u.s. 134, 152 (1980). 37 iowa mut. ins. co. v. laplante, 480 u.s. 9, 14–15 (1987). 38 merrion v. jicarilla apache tribe, 455 u.s. 130, 141 (1982). 39 indian major crimes act, 18 u.s.c. § 1153 (2017) (original version at ch. 341, 23 stat. 362, 382 (1885)). 40 ex parte crow dog, 109 u.s. 556, 572 (1883). 41 18 u.s.c. § 1153 (“any indian who commits . . . any of the following offenses . . . shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the united states.”). 42 united states v. kagama, 118 u.s. 375, 383–84 (1886) (“they are communities dependent on the united states,-dependent [sic] largely for their daily food; dependent for their political rights. they owe no allegiance to the states, and receive from them no protection. because of the local ill feeling, the people of the states where they are found are often their deadliest enemies.”). 102 columbia journal of race and law [vol. 9:1 with it the power” to exercise jurisdiction over tribes.43 kagama, in granting the federal government the power to legislate over matters typically left up to individual tribes, effectively weakened tribal sovereignty.44 post-kagama, congress terminated the practice of treaty making with tribes, ushering an “increase in statutory power vested in indian service officials and a steady narrowing of the control and rights of individual indians and tribes.”45 this set the stage for a shift toward federal indian policies aimed at assimilation. policies such as the general allotment act of 1887, which encouraged tribal members to surrender communally-owned lands for individual tracts,46 and indian boarding schools designed to “[k]ill the indian … and save the man,”47 devastated tribes across the country. from 1881 to 1934, tribes lost roughly 150 million acres of land through allotment, sale, or concession.48 1. the termination era and public law 280 recognizing the negative effects of assimilationist policies on tribes, congress implemented new policies designed to promote tolerance and respect for native american culture. this is reflected in the passage of the indian reorganization act (“ira”).49 congress designed the ira to remedy the loss of tribal land by permitting the federal government to take land in trust for tribes as well as encouraging tribal economic 43 id. at 384. 44 see daniel l. rotenberg, american indian tribal death—a centennial remembrance, 41 u. miami l. rev. 409 (1986). 45 cohen’s handbook, supra note 19, § 1.04, at 72 (citing paul stuart, the indian office: growth and development of an american institution, 1865–1900 (1979)). 46 id. 47 richard h. pratt, the advantages of mingling indians with whites, in proceedings of the national conference of charities and correction at the nineteenth annual session held in denver, col., june 23–29, 1892, at 45, 46 (isabel c. barrows ed., boston, press of geo. h. ellis 1892). 48 cohen’s handbook, supra note 19, § 1.04, at 73. 49 indian reorganization (wheeler-howard) act, ch. 576, 48 stat. 984 (1934) (codified as amended at 25 u.s.c. § 5108 (2017)). no. 3:95] roe on the rez 103 development.50 tribes were to have complete dominion over trust lands. this trend, however, did not last long. during the postwar period, congress shifted away from remedial policies towards the “termination era,” during which the government again turned to assimilationist policies aimed at terminating tribes.51 one of the hallmarks of the termination era was p.l. 280, a statute broadly authorizing state jurisdiction over criminal and civil adjudicative matters in indian country.52 p.l. 280 was a response to perceived lawlessness on tribal land.53 with the hope that state jurisdiction would reduce lawlessness, p.l. 280 grants alaska, california, minnesota, nebraska, oregon, and wisconsin almost complete jurisdiction over criminal offenses by or against natives in indian country.54 it also grants the same states jurisdiction over civil causes of action when natives are one or more parties to a suit.55 the statute does not grant states general civil or regulatory jurisdiction over indian country. tribes are free to regulate administrative matters as they see fit. other states may opt into the statute’s jurisdictional scheme. at the time of p.l. 280’s passage, tribes had no say in whether state jurisdiction would apply to them. fifteen years after the 50 lawrence kelly, the indian reorganization act: the dream and the reality, 44 pac. hist. rev. 291, 294 (1975). 51 see h.r. con. res. 108, 83d cong., 67 stat. b132 (1953) (terminating the federal-tribe relationship with enumerated tribes); see also charles f. wilkinson & eric r. biggs, the evolution of the termination policy, 5 am. indian l. rev. 139, 151–54 (1977) (“[a]pproximately 109 tribes and bands were terminated. a minimum of 1,362,155 acres and 11,466 individuals were affected.”). 52 act of aug. 15, 1953, pub. l. no. 83-280, 67 stat. 588 (codified as amended at 18 u.s.c. § 1162 (2017); 25 u.s.c. §§ 1321–26 (2017); 28 u.s.c. § 1360 (2017)). 53 see bryan v. itsaca county, 426 u.s. 373, 379 (1976) (“the primary concern of congress in enacting pub. l. 280 that emerges from its sparse legislative history was with the problem of lawlessness on certain indian reservations, and the absence of adequate tribal institutions for law enforcement.”); vanessa j. jiménez & soo c. song, concurrent tribal and state jurisdiction under public law 280, 47 am. u. l. rev. 1627, 1658–60 (1998). some scholars have argued that p.l. 280 actually increased lawlessness in indian country. see generally carole goldberg-ambrose, public law 280 and the problem of lawlessness in california indian country, 44 ucla l. rev. 1405, 1415–37 (1997). 54 18 u.s.c. § 1162 (2017). 55 28 u.s.c. § 1360 (2017). 104 columbia journal of race and law [vol. 9:1 passage of p.l. 280, congress mandated that native americans must consent to their state’s assumption of jurisdiction.56 fifteen states currently have either partial or mandatory jurisdiction pursuant to p.l. 280.57 though p.l. 280 only grants states jurisdiction over criminal matters, scholars and tribes alike have criticized p.l. 280 as abrogating tribal sovereignty.58 this assertion is partly based on the legal context in which congress passed p.l. 280.59 other termination era policies included the transfer of educational responsibilities from tribes and the federal government to states, authorization for sale and lease of tribal land to non-natives, and relocation programs that encouraged natives to move away from reservations.60 land and population loss threaten tribal sovereignty. tribes can only exercise sovereignty to the extent they own the land and their members reside within it. despite evidence to the contrary, the supreme court held in california v. cabazon band of mission indians that p.l. 280 “plainly was not intended to effect total assimilation of indian tribes into mainstream american society.”61 the court adopted a test to determine whether a state’s law falls within p.l. 280: if the state law intends to prohibit certain conduct, p.l. 280 applies and grants the state jurisdiction over those affairs in indian country.62 if the state law generally permits 56 civil rights act of 1968, pub. l. no. 90-284, § 406, 82 stat. 73, 80 (“state jurisdiction acquired pursuant to this title with respect to criminal offenses or civil causes of action . . . shall be applicable in indian [c]ountry only where the enrolled indians within the affected area of such indian [c]ountry accept such jurisdiction by a majority vote of the adult indians voting at a special election held for that purpose.”). 57 see cohen’s handbook, supra note 19, at 92. 58 see, e.g., ross naughton, comment, state statutes limiting the dual sovereignty doctrine: tools for tribes to reclaim criminal jurisdiction stripped by public law 280?, 55 ucla l. rev. 489, 493, 516 (2007). 59 see generally h.r. con. res. 108, 83d cong., 67 stat. b132 (1953) (terminating the federal-tribe relationship with enumerated tribes). see wilkinson & biggs, supra note 51, at 158–59. 60 wilkinson & biggs, supra note 51, at 149–50. 61 california v. cabazon band of mission indians, 480 u.s. 202, 208 (1987) (citing bryan v. itsaca county, 426 u.s. 373, 387 (1976) (holding that p.l. 280 does not grant states general civil regulatory authority)), superseded by statute, indian gaming regulatory act, pub. l. no. 100-497, 102 stat. 2467 (1988). 62 id. no. 3:95] roe on the rez 105 that conduct, then the statute is civil or regulatory and p.l. 280 does not authorize enforcement.63 for example, a penal law criminalizing armed robbery and describing penalties for such conduct would fall within the criminal or prohibitory category. conversely, a statute governing cosmetology licenses is civil or regulatory. states cannot exercise jurisdiction over those matters on indian land. cabazon appears to limit p.l. 280’s infringement on tribal sovereignty. 2. the current state of tribal sovereignty though the court’s decision in cabazon reflects contemporary federal indian policy, which prioritizes tribal self-determination, the state of tribal sovereignty is still precarious. the cabazon court noted that granting states civil jurisdiction would destroy tribal institutions and values.64 tribes are more empowered than ever to create policy without federal intervention.65 but federal indian policy is, to quote justice thomas, “schizophrenic.”66 as the preceding summary of tribal sovereignty suggests, federal indian policy is cyclical, ebbing between assimilation and promotion of tribal self-determination.67 federal indian policy may swing back towards assimilation again. indeed, indian law scholar matthew fletcher wrote in a 2006 article that “it is a dangerous time for indian tribes,” because courts now tend to make policy in federal indian law cases.68 in general, the supreme court prefers its own federal indian policies to congressional policy statements.69 because of the inconsistencies between 63 id. 64 id. (citing itsaca county, 426 u.s. at 388). 65 matthew l.m. fletcher, the supreme court and federal indian policy, 85 neb. l. rev. 121, 123–24 (2006) (“federal indian law and policy is no longer driven by congress, the bureaucracy, or even the states. indian tribes lead the way and the rest have to catch up . . . indian tribes in recent decades have outpaced the law in many ways. through their commitment to tribal self-determination, congress and the executive have opened the door— and tribes have finally sprinted through.”). 66 united states v. lara, 541 u.s. 193, 219 (2004) (thomas, j., concurring). 67 saikrishna prakash, against tribal fungibility, 89 cornell l. rev. 1069, 1117 (2004). 68 see fletcher, supra note 65, at 125. 69 id. at 163. 106 columbia journal of race and law [vol. 9:1 federal and judicial policy on indian law, tribal sovereignty is in flux. b. a brief summary of the supreme court’s abortion jurisprudence in order to understand the context of cecilia fire thunder’s proposal, a brief examination of abortion jurisprudence is necessary. from the mid-1800’s to the 1960’s, abortion was largely illegal and underground.70 by the 1960’s, some states reformed their abortion laws, spurred in part by the american law institute’s proposing a model penal code provision that legalized abortion in limited circumstances, such as pregnancies resulting from rape.71 in 1973, the roe court held that the right to abortion is protected under the due process clause of the fourteenth amendment as part of a general right to privacy.72 since then, the supreme court has reaffirmed its major holding that access to abortion is a fundamental right, but has largely abandoned the roe framework.73 in roe, the court used strict scrutiny to determine that abortion falls under the right to privacy.74 the roe court also set forth that states could regulate abortion during the second and third trimesters of pregnancy, when the state’s interest in potential life becomes “compelling.”75 twenty years later, the court in casey upheld roe’s holding that (1) the state may not unduly interfere with the right to abortion before viability, (2) the state nonetheless may restrict abortion after the fetus becomes viable, and (3) the state has legitimate interests in protecting the 70 see rachel benson gold, lessons from before roe: will past be prologue?, 6 guttmacher pol’y rev. 8, 8 (2003), https://www.guttmacher .org/sites/default/files/article_files/gr060108.pdf [https://perma.cc/3v2v-xq lm]. for more on underground abortions pre-roe, see rickie solinger, extreme danger: women abortionists and their clients before roe v. wade, in not june cleaver: women and gender in postwar america, 1945–1960, at 335, 335–57 (joanne meyerowitz ed., 1994). 71 david p. cline, creating choice: a community responds to the need for abortion and birth control, 1961–1973, at 23–24 (2006). 72 roe v. wade, 410 u.s. 113, 153–54 (1973). 73 see planned parenthood of se. pa. v. casey, 505 u.s. 833, 846–47 (1992). 74 roe, 410 u.s. at 154–55. 75 id. at 162–63. no. 3:95] roe on the rez 107 mother’s health and the fetus’s future life.76 the court then replaced the application of strict scrutiny with the current undue burden standard.77 this standard asks a court to determine whether “state regulation imposes an undue burden on a woman’s ability” to seek abortion, thus triggering the protection of the due process clause.78 in adopting the undue burden standard, the court rejected the trimester framework.79 since casey, scholars have argued that the case inadvertently created a roadmap for more state regulation of abortion.80 the court explicitly noted that what was at stake in the case was “the woman’s right to make the ultimate decision.”81 unless it affects a woman’s right to choose, a state law designed to “persuade [a woman] to choose childbirth over abortion will be upheld if reasonably related to that goal.”82 using this logic, the court upheld pennsylvania’s informed consent requirement, which entailed a twenty-fourhour waiting period between mandatory counseling and the abortion procedure.83 with the court’s tacit approval, states were free to enact statutes with the express goal of dissuading abortion. the court addressed some of these restrictive state statutes in whole woman’s health v. hellerstedt. there, the court upheld the undue burden framework. it also clarified that courts must consider “the burdens a law imposes on abortion access together with the benefits those laws con 76 casey, 505 u.s. at 846. 77 id. at 846–47. 78 id. at 874. 79 id. at 872–73. 80 see jennifer nelson, more than medicine: a history of the feminist women’s health movement 134, 145, 157 (2015); caitlin e. borgmann, abortion, the undue burden standard, and the evisceration of women’s privacy, 16 wm. & mary j. women & l. 291 (2010); thomas j. molony, roe, casey, and sex-selection abortion bans, 71 wash. & lee l. rev. 1089 (2014); mark h. woltz, note, a bold reaffirmation? planned parenthood v. casey opens the door for states to enact new laws to discourage abortion, 71 n.c. l. rev. 1787 (1993). 81 casey, 505 u.s. at 887. 82 id. at 888. 83 id. at 881. 108 columbia journal of race and law [vol. 9:1 fer.”84 in whole woman’s health, the court struck down two major targeted regulations of abortion providers in texas: the admitting privileges requirement (doctors performing abortions must have admitting privileges at a local hospital no further than thirty minutes away from the abortion clinic)85 and the surgical center requirement (abortion clinics must be equipped as ambulatory surgical centers).86 despite the court affirming the right to abortion, access to abortion remains limited. admitting privileges and surgical center requirements are still common in states hostile toward abortion.87 the guttmacher institute found that seventeen states have “onerous licensing standards” for abortion providers that are “comparable or equivalent” to texas’s ambulatory surgical center standards overturned in whole woman’s health.88 twelve states require doctors to have some kind of affiliation with a local hospital, two requiring admitting privileges and ten requiring either admitting privileges or an alternative agreement.89 women still face other regulatory barriers to abortion, such as mandatory waiting periods of up to seventy-two hours90 and ultrasounds.91 c. historical and contemporary perspectives from native american people on abortion native american communities have a unique perspective on abortion. historical accounts show that native women engaged in abortive practices. writings from the early 84 whole woman’s health v. hellerstedt, 136 s. ct. 2292, 2309–10 (2016). 85 id. at 2310–13. 86 id. at 2314–18. 87 states hostile to abortion rights, 2017, supra note 18. 88 targeted regulation of abortion providers, guttmacher inst. (jan. 1, 2019), https://www.guttmacher.org/print/state-policy/explore/targetedregulation-abortion-providers [https://perma.cc/2m4q-7jzl]. 89 id. 90 counseling and waiting periods for abortion, guttmacher inst. (jan. 1, 2019), https://www.guttmacher.org/state-policy/explore/counselingand-waiting-periods-abortion [https://perma.cc/nb2a-95w4]. 91 requirements for ultrasound, guttmacher inst. (jan. 1, 2019), https://www.guttmacher.org/print/state-policy/explore/requirements-ultra sound [https://perma.cc/4sdt-nz7r]. no. 3:95] roe on the rez 109 1700’s indicate that native american women92 induced abortions.93 according to at least one scholar, most tribes had different abortive and contraceptive practices.94 in 1826, the cherokee council passed a statute penalizing “infanticide” committed during pregnancy.95 the seneca-cayuga also prohibited abortion during the early 1800’s.96 some native women may have induced abortion by consuming plant abortifacients or applying pressure to the abdomen.97 navajo women in captivity at bosque redondo98 were suspected to terminate pregnancy so frequently that an army doctor speculated it would “finally wipe [the tribe] out of existence.”99 currently, the indian health service (ihs) is the largest medical provider for natives living in indian country. the ihs is financed by federal funds as an arm of the department of health and human services (hhs).100 pursuant to the hyde amendment, which has been attached to appropriations bills since 1976,101 federal medicaid funds 92 i acknowledge that not everyone who seeks an abortion identifies as a woman. for the sake of clarity, i refer to those who seek abortions as women or patients. 93 zoila acevedo, abortion in early america, 4 women & health 159, 159 (1979). 94 id. (citing elise boulding, the underside of history: a view of women through time (1976)). 95 nancy shoemaker, american indian population recovery in the twentieth century 48–49 (1999). 96 id. 97 see id.; acevedo, supra note 93, at 160. 98 richard w. hughes, indian law, 18 n.m. l. rev. 403, 406 (1988). for more on the “long walk” from arizona to bosque redondo, see howard w. gorman, narrative about the long walk to fort sumner, in navajo stories of the long walk period 23–42 (broderick h. johnson ed., 1973), and gerald e. thompson, “to the people of new mexico”: gen. carleton defends the bosque redondo, 14 j. sw. 347 (1972). 99 letter from m. hillary, brevet captain & assistant surgeon, u.s. army, to colonel theo. h. dodd, agent for navajo indians (sept. 6, 1866), in report of the commissioner of indian affairs for the year 1866, at 150 (washington, d.c., gov’t printing office 1866). 100 annual budget, indian health serv., u.s. dep’t of health & human servs., https://www.ihs.gov/aboutihs/annualbudget/ [https://perma .cc/9kkh-3qsu]. 101 see department of labor appropriation act, pub. l. no. 94439, § 209, 90 stat. 1418, 1434 (1976) (making appropriations for the departments of labor, health, education, and welfare, and related agencies, for the fiscal year ending september 30, 1977, and for other purposes). 110 columbia journal of race and law [vol. 9:1 cannot cover abortions, except in narrowly defined exceptions. more than two million natives currently receive medical care through the ihs,102 roughly one-third of the native population.103 ihs assistant surgeon general michael h. trujillo clarified in a 1996 memo that the ihs may use ihs funds to provide abortions only in the same circumstances as the hhs—when necessary to save the mother’s life or when the pregnancy is the result of rape or incest.104 the ihs is often the only reproductive health care provider for native people. thus, native women have less access to abortion than american women living outside of reservations.105 scholars have posited that the ihs is unequipped to provide abortions, even under the exceptions provided by the hyde amendment.106 in 2002, the native american women’s health education resource center (nawherc) found that sixty-two percent of ihs service units did not provide abortions, even when the mother’s life was in danger.107 that year, 102 ihs profile, indian health serv., https://www.ihs.gov/news room/index.cfm/factsheets/ihsprofile/ [https://perma.cc/ceu6-tmmz]. 103 jenny porter, profile america facts for features: american indian and alaska native heritage month: november 2016 (2016), https://www.census.gov/content/dam/census/newsroom/facts-for-features/2016 /cb26-ff22_aian.pdf [https://perma.cc/5h3a-lv87]. 104 michael h. trujillo, indian health serv., u.s. dep’t of health & human servs., special general memorandum 96-01, current restrictions on use of indian health service funds for abortions (1996), https://www.ihs.gov/ihm/index.cfm?module=dsp_ihm_sgm_main&sgm =ihm_sgm_9601 [https://perma.cc/2dwr-t2un]. 105 shaye beverly arnold, reproductive rights denied: the hyde amendment and access to abortion for native american women using indian health service facilities, 104 am. j. pub. health 1892 (2014). 106 andrea smith, conquest: sexual violence and american indian genocide 96–97 (2015). a caveat to andrea smith’s work: several native scholars have criticized ms. smith for falsifying claims to cherokee heritage. ms. smith strongly denies the claims but has never provided proof of her membership in the tribe. she is prolific in the field of indigenous studies, but such claims, if true, question the validity of some of her scholarship. for more on this controversy, see samantha allen, meet the native american rachel dolezal, daily beast (june 30, 2015), https://www.thedaily beast.com/meet-the-native-american-rachel-dolezal [https://perma.cc/6e99-v9 kx], and open letter from indigenous women scholars regarding discussions of andrea smith, indian country today (july 7, 2015), https://indiancountry medianetwork.com/news/opinions/open-letter-from-indigenous-women-schol ars-regarding-discussions-of-andrea-smith/ [https://perma.cc/x5mm-g2gr]. 107 smith, supra note 106. no. 3:95] roe on the rez 111 only five percent of ihs facilities performed abortions.108 in 2017, the ihs published a report finding that twenty-nine percent of native women experienced an obstetric complication during delivery.109 while native women have similar maternal morbidity rates to american women of other ethnicities, the ihs found that native women have higher rates of severe complications, such as gestational diabetes.110 native american women have disproportionately high indices of intimate partner violence,111 sexual assault,112 and unplanned pregnancy,113 creating a need for expanded access to abortion. according to nawherc, native women have a relatively high rate of abortion but tend to seek abortions further along in pregnancy due to a mix of shame, lack of information, and lack of resources.114 despite limited access to abortion through their regular providers and financial challenges, native women do terminate pregnancy. barbara gurr argues that for native women, abortion is “not a private decision between a woman and her doctor (as intended in roe v. wade) but rather a very public negotiation between a native woman, her tribal council, the regional 108 id. 109 stephen j. bacak et al., maternal morbidity during delivery hospitalizations in american indian and alaska native women, 32 ihs primary care provider 33, 35 (2007). 110 id. at 36. 111 lorraine halinka malcoe et al., socioeconomic disparities in intimate partner violence against native american women: a cross-sectional study, 2 bmc med. 1, 6–7 (2004). 112 id.; see also steven w. perry, bureau of justice statistics, u.s. dep’t of justice, a bjs statistical profile, 1992–2002: american indians and crime 5 (2004), https://www.bjs.gov/content/pub/pdf/aic02.pdf [https://perma.cc/9sbk-6tta] (highlighting that native americans are twice as likely to experience a rape or other sexual assault when compared to all other racial groups). 113 kati schindler et al., native am. women’s health educ. res. ctr., indigenous women’s reproductive rights: the indian health service and its inconsistent application of the hyde amendment 2 (2002), http://prochoice.org/pubs_research/publications/downloads/about_abortion/indi genous_women.pdf [https://perma.cc/77x6-v4c2]; see also urban indian health inst., seattle indian health bd., reproductive health of urban american indian and alaska native women: examining unintended pregnancy, contraception, sexual history and behavior, and nonvoluntary sexual intercourse 29 (2010). 114 barbara gurr, reproductive justice: the politics of health care for native american women 132 (2015). 112 columbia journal of race and law [vol. 9:1 state in which she lives, and the federal government.”115 native women must not only contend with federal and state statutes regulating abortion; some tribes have criminalized or outlawed abortion on reservations. for example, the turtle mountain band of chippewa in north dakota has made it a “class 2 offense” to sell “any means . . . of causing abortion or miscarriage.”116 to date, there is no data on tribal attitudes towards abortion, but it is likely that some of the 567 federally recognized tribes117 harbor anti-abortion sentiment.118 though more data is needed on indian country perspectives toward abortion, at least one scholar has posited that the pro-life/pro-choice paradigm does not necessarily fit native american women’s experiences.119 on the one hand, the pro-choice perspective supports the expansion of reproductive justice and self-determination. but pro-choice organizations did not support remedial action for the forced sterilization of native women during the 1970’s.120 on the other hand, prolife movements organize against forced population control policies. yet, anti-abortion organizations support the expansion of racially discriminatory policies like the hyde amendment.121 neither ideological perspective fully encompasses the native experience. fire thunder’s proposal empowers native women to create their own framework in this debate, one that emphasizes self-determination for the community and the individual. 115 id. 116 turtle mountain band of chippewa code § 26.1208.01 (2018), https://www.tm.edu/wp-content/uploads/files/academics/paralegal%20re sources/title26-%20offensespenalties.pdf [https://perma.cc/cs45-v83l]. 117 indian entities recognized and eligible to receive services from the united states bureau of indian affairs, 82 fed. reg. 4915 (jan. 17, 2017). 118 national right to life, a prominent anti-abortion organization, has an “indians for life” subgroup. clementine “little hawk” hernandez (lakota sioux) founded indians for life. indians for life, nat’l right to life, https://www.nrlc.org/outreach/ifl/ [https://perma.cc/j8dv-tqhq]. 119 andrea smith, native americans and the christian right: the gendered politics of unlikely alliances 232–34 (2008) (“[w]hile the pro-choice and pro-life camps on the abortion debate are often articulated as polar opposites, they both depend on similar operating assumptions that do not necessarily support either life or real choice for native women.”). 120 id. at 233. 121 id. at 233–34. no. 3:95] roe on the rez 113 the following section of this note will draw on the history and jurisprudence of p.l. 280 to contextualize the problem explored in this note—whether cecilia fire thunder’s proposal to open a full-service reproductive health clinic on indian land is legally valid and functionally practicable for tribes. iii. abortion in wisconsin in her statements regarding her intent to open an abortion clinic at pine ridge, cecilia fire thunder invoked tribal sovereignty. she said, “an indian reservation is a sovereign nation, and we’re going to take it as far as we can to exercise our sovereignty. . . . as indian women, we fight many battles. this is just another battle we have to fight.”122 fire thunder’s proposal passes constitutional muster because p.l. 280 does not limit tribes from opening clinics in indian country in states that have applied the law. this part will examine the current status of abortion law in wisconsin, a mandatory p.l. 280 state.123 wisconsin is home to substantial and diverse native populations, thus providing a framework to ultimately determine whether fire thunder’s proposal may be executed. moreover, wisconsin’s anti-abortion statutory policies are representative of those found in other states hostile towards abortion.124 therefore, an examination of the statutory and regulatory landscape of abortion in wisconsin is useful, as the analysis employed in this part is applicable to other states should they choose to adopt p.l. 280. this part then will consider whether wisconsin’s extensive regulation of abortion constitutes a series of criminal prohibitions on abortion or merely civil or regulatory laws. if these statutes are criminal or prohibitory, the state many enforce them on indian reservations. if the statutes are civil or regulatory, the state has no jurisdiction.125 whether p.l. 280 grants wisconsin jurisdiction over abortion in indian country 122 the balt. sun, supra note 9. 123 wisconsin is one of the six states expressly granted jurisdiction over indian country by p.l. 280. 124 see an overview of abortion laws, supra note 14. 125 california v. cabazon band of mission indians, 480 u.s. 202, 208 (1987), superseded by statute, indian gaming regulatory act, pub. l. no. 100497, 102 stat. 2467 (1988). 114 columbia journal of race and law [vol. 9:1 depends on the state’s intentions when passing legislation and the statutes’ scope. a. the supreme court’s cabazon test to determine whether public law 280 grants states jurisdiction over conduct in indian country in cabazon, the supreme court elaborated on a test to determine whether p.l. 280 applies to conduct on reservations. under p.l. 280, states have criminal jurisdiction but not general civil regulatory power.126 to determine whether a law is applicable on a reservation, a court must determine whether the law is prohibitory, thus granting the state jurisdiction pursuant to p.l. 280, or regulatory. states do not have jurisdiction to enforce civil or regulatory statutes under p.l. 280 unless the statute grants the state jurisdiction to adjudicate civil controversies arising in indian country between native parties.127 the supreme court held that if a state law’s intent is to prohibit certain conduct, it falls under p.l. 280. otherwise, if the state law’s intent is to merely constrain or regulate the conduct, it does not fall under p.l. 280.128 however, the court clarified that this test is not a bright-line rule, because a grant of broad civil jurisdiction would “result in the destruction of tribal institutions and values.”129 this implies that if the equities tip in favor of a tribe, courts may decline to extend the state jurisdiction. the cabazon case was a dispute over whether california’s prohibition on bingo games applied to two federally recognized indian tribes in riverside county, both of which operated gaming enterprises.130 the supreme court held that the state did not have jurisdiction to ban the games—california’s penal code restricting bingo was not criminal in nature and was thus inapplicable to the tribes.131 this is because the statute did not expressly prohibit bingo— games were permissible so long as the money went towards 126 see 18 u.s.c. § 1162 (2017); 28 u.s.c. § 1360 (2017). 127 see cabazon, 480 u.s. at 207; bryan v. itsaca county, 426 u.s. 373, 388–90 (1976). 128 cabazon, 480 u.s at 207. 129 id. at 208. 130 id. at 206. 131 id. at 209. no. 3:95] roe on the rez 115 charity—or other forms of gambling, such as the lottery or horse race betting.132 the state argued that pursuant to p.l. 280, prohibitions on gambling applied to the tribes because they were part of the california penal code.133 california also argued that congress had abrogated the tribes’ sovereignty with respect to bingo games through the organized crime control act (“occa”). the supreme court rejected this argument, noting that the federal government had expressly approved of and even assisted tribes’ establishing gaming operations.134 the supreme court’s decision in cabazon ushered in the modern-day era of tribal gaming,135 spurring congress’s passage of the indian gaming regulatory act (“igra”) in 1988.136 with igra, tribes established largescale tribal casinos like foxwoods137 and mohegan sun.138 1. abortion and abortion law in wisconsin determining whether p.l. 280 would grant wisconsin jurisdiction over abortions in indian country requires a survey of current abortion trends and statutes in wisconsin. wisconsin women, especially native women, face considerable hurdles to accessing abortion. as of november 2017, there are currently three abortion clinics in wisconsin.139 132 id. at 208. 133 california is also one of the aforementioned six states expressly granted jurisdiction over indian country by p.l. 280. act of aug. 15, 1953, pub. l. no. 83-280, 67 stat. 588 (codified as amended at 18 u.s.c. § 1162 (2017); 25 u.s.c. §§ 1321–26 (2017); 28 u.s.c. § 1360 (2017)). 134 cabazon, 480 u.s. at 209–10. 135 see ralph a. rossum, the supreme court and tribal gaming: california v. cabazon band of mission indians (2011). 136 indian gaming regulatory act, pub. l. no. 100-497, 102 stat. 2467 (1988) (codified as amended at 25 u.s.c. §§ 2701–21 (2017)). 137 foxwoods casino, one of the largest casinos in the world, opened its doors in 1992. about us, foxwoods resort casino, https://www.foxwoods .com/aboutus.aspx [https://perma.cc/qb2f-5bp7]. 138 mohegan sun, housing more than 300,000 square feet of gaming, opened its doors in 1996. about mohegan sun, mohegan sun, https://mohe gansun.com/about-mohegan-sun.html [https://perma.cc/f7p5-d8e4]. 139 jessie opoien, inside planned parenthood: doctors, patients struggle to navigate wisconsin’s restrictive abortion laws, cap times (nov. 8, 2017), http://host.madison.com/ct/news/local/govt-and-politics/insideplanned-parenthood-doctors-patients-struggle-to-navigate-wisconsin-s/article_ 12e49523-2e52-59db-9791-c4a0720ca115.html [https://perma.cc/t926-2dh4]. 116 columbia journal of race and law [vol. 9:1 according to the guttmacher institute, approximately ninetysix percent of counties in wisconsin have no abortion provider. sixty-seven percent of women residing in the state live in those counties.140 in other words, the majority of wisconsin women do not have a readily accessible abortion provider. providers appear to be concentrated in the milwaukee-madison area in southern wisconsin.141 there is no specific data on the availability of abortion for native women in indian country. however, it is fair to surmise that access is even more restricted for them as reservations are predominately located in more rural areas of northern wisconsin.142 according to the state’s department of health services, native american women underwent approximately one percent of abortions in the state, or fifty-one abortions total.143 without more data, it is impossible to predict whether that number reflects the number of native women who wished to abort but did not. the estimated rate of abortion in wisconsin in 2016 was nearly half of the national average rate.144 aside from the relative scarcity of abortion providers in the state, wisconsin also has several restrictive abortion regulations. these include mandatory, state-directed counseling that discourages abortion,145 a twenty-four-hour waiting period between counseling and the abortion procedure,146 and mandatory ultrasounds before the procedure, during which the provider must show and describe the image contents to the patient.147 these requirements may be waived in cases of incest or sexual assault, provided the woman 140 guttmacher inst., state facts about abortion: wisconsin (2018), https://www.guttmacher.org/sites/default/files/factsheet/sfaa-wi.pdf [https://perma.cc/uyd4-txwr]. 141 catherine guden, wisconsin now has only two planned parenthood abortion clinics, badger herald (aug. 22, 2016), https://badger herald.com/news/2016/08/22/wisconsin-now-has-only-two-planned-parenthoodabortion-clinics/ [https://perma.cc/8vzk-5v4a]. 142 where are the tribes?, wis. st. tribal rel. initiative, http://wi tribes.wi.gov/section.asp?linkid=731&locid=57 [https://perma.cc/9ewz-zbhx]. 143 yiwu zhang, wis. dep’t of health servs., reported induced abortions in wisconsin 2016, at 8 (stephanie hartwig ed., 2017). 144 id. at 2. 145 wis. stat. § 253.10(3) (2017–2018). 146 id. 147 id. § 253.10(3g). no. 3:95] roe on the rez 117 cooperates with law enforcement.148 wisconsin’s state health exchange under the affordable care act covers abortion only if the woman’s life is in danger or the woman’s health is severely compromised and in cases of rape or incest.149 telemedicine abortion, which involves a patient taking the “abortion pill”150 with the remote guidance of a provider, is also prohibited.151 abortions are generally prohibited after twenty weeks gestation unless the woman’s life is in danger.152 legislators justified the twenty-week ban under the assertion that fetuses feel pain after this point in their in utero development, which is widely disputed by the medical community.153 the aforementioned statutes are found within the state’s public health title and are thus not considered criminal prohibitions on abortion.154 there is also a provision within the criminal code that specifies that homicide (both reckless and intentional) does not include “induced” abortions.155 for the state to prove guilt in a feticide or fetal 148 id. § 253.10(3m). 149 wis. stat. § 20.927 (2017–2018); wis. stat. § 632.8985 (2017– 2018). 150 medication abortion, also known as the abortion pill, is a firsttrimester abortion method. patients take mifepristone at the clinic under medical supervision. six to forty-eight hours after the mifepristone dose, patients must then take a second medication (misoprostol)—usually unsupervised—to complete the procedure. the abortion pill, planned parenthood, https://www.plannedparenthood.org/learn/abortion/the-abortion -pill [https://perma.cc/y4k4-wmgq]. 151 wis. stat. § 253.105(2)(b) (2017–2018). 152 wis. stat. § 253.107 (2017–2018). 153 see pam belluck, complex science at issue in politics of fetal pain, n.y. times (sept. 16, 2013), http://www.nytimes.com/2013/09/17/health/ complex-science-at-issue-in-politics-of-fetal-pain.html?_r=0 [https://perma.cc/ wpd3-4fs4]; see also susan j. lee et al., fetal pain: a systematic multidisciplinary review of the evidence, 294 [j]ama 947, 952 (2005) (“[t]he capacity for conscious perception of pain can arise only after thalamocortical pathways begin to function, which may occur in the third trimester around 29 to 30 weeks’ gestational age, based on the limited data available. . . . [thalamocortical fibers’] mere presence is insufficient [to establish fetal pain]—this pathway must also be functional. . . . [n]o human study has demonstrated this early functionality.”). 154 see § 20.927; § 253.105(2)(b); § 253.107; § 632.8985. 155 wis. stat. § 939.75(2)(b)(1)–(4) (2017–2018). in this context, induced abortion likely means a medically necessary or therapeutic abortion performed in a medical context. 118 columbia journal of race and law [vol. 9:1 injury prosecution, where the defendant has claimed that there was an induced abortion, the state must prove beyond a reasonable doubt that there was no induced abortion.156 the criminal code’s intentional feticide provision expressly does not apply to physicians performing necessary abortions.157 the wisconsin supreme court held in a 1994 decision that the feticide provision does not apply to medical abortions despite the fact that the provision is titled “abortion.”158 the wisconsin criminal code also contains another provision, similarly entitled “abortion,” which prohibits abortions after fetal viability unless the mother’s life or health is in danger.159 the wisconsin supreme court found that the latter statute was a permissible restriction on late-term abortions160 consistent with roe.161 taken together, these regulations create barriers to abortion access that affect native women. 2. the wisconsin government’s attitudes toward abortion and setting up the problem the wisconsin state government is openly hostile toward abortion. wisconsin governor scott walker aired ads in 2015 that featured him stating: “i’m pro-life but i can only imagine how difficult a decision must be for someone who’s thinking about ending their pregnancy. that’s why i support a law that provides more information to someone to make 156 id. § 939.75(3). 157 wis. stat. § 940.04(5) (2017–2018). 158 state v. black, 526 n.w.2d 132, 134 (wis. 1994) (“the words of the statute are plain and unambiguous. they could hardly be clearer.”). 159 wis. stat. § 940.15 (2017–2018). 160 the language of “late-term abortion” is not consistent with medicine; typically, late-term pregnancy refers to gestation past forty weeks. however, post-viability abortions have become known as late-term abortions in popular lexicon. robin marty, stop using the phrase “late-term abortion,” cosmopolitan (oct. 2, 2017), http://www.cosmopolitan.com/politics/a12766188 /late-term-abortion-20-week-ban/ [https://perma.cc/bbm9-4re8]. 161 black, 526 n.w.2d at 135 (“section 940.15 places restrictions (consistent with roe v. wade) on consensual abortions: medical procedures, performed with the consent of the woman, which result in the termination of a pregnancy by expulsion of the fetus from the woman’s uterus.”). no. 3:95] roe on the rez 119 that decision.”162 governor walker was widely criticized for this statement as being inconsistent with his previous statements about abortion. the state legislature later passed a statute banning abortions after twenty weeks from fertilization.163 when he later signed the twenty-week ban into law, governor walker published on twitter the following message: “just signed pain capable bill into law to protect unborn at 5 months when they can feel pain.”164 other governmental actors in wisconsin have also expressed their disdain for abortion in less obvious antiabortion language. regarding his proposed ban on abortion coverage in state employee health plans, former representative andre jacque was quoted as saying, “the government should not force taxpayers to fund the killing of pre-born children . . . . abortion is not health care.”165 house speaker paul ryan, who represented wisconsin’s first congressional district, helped push a twenty-week ban before the house of representatives in early 2018, where it ultimately passed.166 at the forty-fifth annual march for life rally at the nation’s capital, representative ryan spoke of the twenty-week ban: 162 dana bash, walker pushes back on flip-flop accusation, cnn (july 19, 2015), http://www.cnn.com/2015/07/19/politics/scott-walker-flip-flop2016-election/ [https://perma.cc/cgl8-fzct]. 163 pregnancy is not calculated from the date of fertilization in standard medical practice as this is difficult to determine in unassisted pregnancies; instead, pregnancy is typically calculated from the woman’s last menstrual period (lmp). twenty weeks post-fertilization is equivalent to twenty-two weeks lmp. committee opinion: methods for estimating the due date, 129 am. c. obstetricians & gynecologists e150 (2017). though perhaps not the biggest oversight, there is scientific value in maintaining a consistent due date paradigm. fetal viability typically begins around twentyfour weeks lmp, or twenty-two weeks post-fertilization. 164 eliza collins, walker signs wisconsin abortion bill, politico (july 20, 2015), https://www.politico.com/story/2015/07/wisconsin-abortion20-weeks-not-legal-scott-walker-120370 [https://perma.cc/f2xt-ans9]. 165 laurel white, assembly approves ban on abortion coverage in state employee health plans, wis. pub. radio (nov. 2, 2017), https://www.wpr .org/assembly-approves-ban-abortion-coverage-state-employee-health-plans [https://perma.cc/yzs6-uwgh]. 166 kimberly leonard, paul ryan: ‘the pro-life movement is on the rise,’ wash. examiner (jan. 19, 2018), http://www.washingtonexaminer.com/ paul-ryan-the-pro-life-movement-is-on-the-rise/article/2646460 [https://perma .cc/m7ad-yb3d]. 120 columbia journal of race and law [vol. 9:1 “we strive to do this not with judgment in our hearts, but with compassion and with love for all of the victims.”167 these governmental actors’ language is deeply couched in anti-abortion rhetoric. they evidently identify as “pro-life.” however, their language does not suggest that abortions should be outlawed altogether: governor walker’s tweet invokes the alleged rights of the fetus; representative jacque’s statements clarify that health insurance plans may not cover elective or medically unnecessary procedures; representative ryan’s statements concern the “victims” of late-term abortions. although these assertions are not founded upon generally accepted scientific facts, they also do not invoke a desire to criminalize abortion. wisconsin abortion statutes may be seen as prohibitions, thus granting wisconsin jurisdiction over abortion on reservations. courts have noted the state’s attempts to prohibit abortions without instituting an outright ban. in 2015, the seventh circuit struck down wisconsin’s admitting privileges requirement as unconstitutional. judge posner, who penned the opinion, noted: [p]ersons who have a sophisticated understanding of the law and of the supreme court know that convincing the court to overrule roe v. wade and planned parenthood of southeastern pennsylvania v. casey is a steep uphill fight, and so some of them proceed indirectly, seeking to discourage abortions by making it more difficult to obtain them.168 judge posner then went on to criticize the state’s attempts to mask its anti-abortion legislation as being in the best interests of the mother’s health: “opponents of abortion reveal their true objectives when they procure legislation limited to a medical procedure—abortion—that rarely produces a medical emergency.”169 here, judge posner relied 167 id. 168 planned parenthood of wis., inc. v. schimel, 806 f.3d 908, 920– 21 (7th cir. 2015). 169 id. at 921. no. 3:95] roe on the rez 121 upon decades of public health data that abortion is exceedingly safe.170 liberal scholars and commentators have echoed judge posner’s critiques that states seek to make abortions as difficult as possible to obtain in lieu of an outright ban.171 president and ceo of the national abortion federation vicki soporta argued that “this was a very calculated and coordinated effort to end abortion by putting up barriers that are sometimes too great for women to overcome.”172 the wisconsin state legislature has expressed anti-abortion sentiment on numerous occasions, including a suggestion to ban abortions to increase the labor force,173 a proposal to block the university of wisconsin-madison medical school faculty from providing abortion training—which is necessary for the school to retain accreditation—to “get uw out of the abortion business,”174 and a proposed bill that restricts fetal tissue donation for scientific research because it would “reduce incentives for abortions and thereby possibly reduce some abortions.”175 “pro-life” organizations in the state boast 170 id. at 921–22. 171 see carol sanger, about abortion: terminating pregnancy in twenty-first-century america (2017); jon healey, the trump administration just found another way to deny women their right to an abortion, l.a. times (jan. 19, 2018), http://www.latimes.com/opinion/ opinionla/la-ol-abortion-conscience-protections-20180119-story.html [https://perma.cc/ sk7p-8s6z]; erica hellerstein, inside the highly sophisticated group that’s quietly making it much harder to get an abortion, thinkprogress (dec. 2, 2014), https://thinkprogress.org/inside-the-highly-sophisticated-groupthats-quietly-making-it-much-harder-to-get-an-abortion-9db723232471/ [https ://perma.cc/74wk-mrjp]. 172 see lisette mejia, the calculated plan to outlaw abortion in the us, popsugar (june 8, 2016), https://www.popsugar.com/news/abortionrestrictions-states-41262255 [https://perma.cc/6zj8-ex4t]. 173 see jacqueline thomsen, wisconsin state lawmaker suggests banning abortions to add to labor force, hill (nov. 4, 2017), http://thehill .com/blogs/blog-briefing-room/news/358806-wisconsin-state-lawmaker-sug gests-banning-abortions-to-add-to [https://perma.cc/9jah-eykl]. 174 todd richmond, uw-madison warns anti-abortion bill could worsen ob-gyn shortage, wis. st. j. (july 17, 2017), http://host.madison.com /wsj/news/local/govt-and-politics/uw-madison-warns-anti-abortion-bill-couldworsen-ob-gyn/article_856b0d29-d296-5e6e-b4fb-673f98cd44f6.html [https:// perma.cc/e8l9-uqje]. 175 scott bauer & todd richmond, wisconsin legislature takes up anti-abortion bills, wash. times (nov. 2, 2017), https://www.washington 122 columbia journal of race and law [vol. 9:1 about the reduced abortion rate in the state over the past several years.176 these organizations have lobbied to assist in the passage of such restrictions.177 wisconsin’s extremely restrictive and hostile legislation on abortion, combined with the state legislature’s largely anti-abortion sentiment, evince a desire to get as close to a total ban as possible. iv. the promise of abortion in indian country this part applies the supreme court’s framework in cabazon to determine whether p.l. 280 extends wisconsin jurisdiction over abortion on tribal land. it concludes that because abortion is largely still legal and regulated in a noncriminal manner, p.l. 280 does not apply and tribes are thus free to pursue cecilia fire thunder’s proposal. this part then considers whether congress may abrogate tribal sovereignty over reproductive health, describes practical considerations for establishing a tribal clinic, and provides suggestions on best practices. a. whether public law 280 grants wisconsin jurisdiction over abortions on tribal land wisconsin’s anti-abortion statutes fall within the cabazon court’s regulatory category; thus, p.l. 280 does not apply. the state government is hostile towards abortion, especially abortions in the second or third trimester as demonstrated by the criminalization of late-term abortions.178 judge times.com/news/2017/nov/2/wisconsin-legislature-taking-up-anti-abortion-bill/ [https://perma.cc/9gf8-26un]. 176 see, e.g., 2017 accomplishments, wis. right to life, https://www. wisconsinrighttolife.org/accomplishments/ [https://perma.cc/q86k-e5zz]; barbara lyons, wisconsin once again leads nation in abortion decline, wis. right to life (july 1, 2009), https://www. wisconsinrighttolife.org/wrtlblog/2009/07/01/wisconsin-once-again-leads-nation-in-abortion-decline/ [https: //perma.cc/7r2u-actd] (“it is the best news because it is the reason why wisconsin right to life exists. abortions are down again in 2008, the fifth straight year of decline!”). 177 see right-to-life laws passed, wis. right to life, http://www2. wrtl.org/legislationelections/right-to-life-laws-passed/ [https:// perma.cc/mya6w8j7]. 178 eighty-nine percent of abortions occur in the first twelve weeks lmp. in fact, less than two percent of abortions occur twenty-one weeks lmp no. 3:95] roe on the rez 123 posner is likely correct that governmental actors seek to discourage abortions by implementing as many targeted regulations of abortion providers as constitutionally permissible. despite this implicit (or explicit) intent, the statutory scheme, when taken as a whole, is largely noncriminal. analogizing to cabazon substantiates that wisconsin’s abortion statutes are regulatory or civil in nature. in cabazon, the court reasoned that since california penalized only noncharitable bingo games, the state “regulates rather than prohibits gambling in general and bingo in particular.”179 in wisconsin and other similarly hostile states, abortion is largely regulated through the public health code, not the penal code. abortion is still legal and available, even if access to the procedure is limited by targeted regulations of abortion providers. statutorily, abortion is treated similarly to other reproductive health procedures, such as sterilization,180 in vitro fertilization,181 and contraception.182 state legislation about women’s reproductive health is civil or regulatory. even if the statutes constituted a criminal prohibition, the court clarified that the test is not a bright-line rule to be rigidly applied,183 such that p.l. 280 would still not apply. in cabazon, the court weighed the tribes’ interests in economic development and tribal sovereignty with california’s interest or later. guttmacher inst., induced abortion in the united states 2 (2018), https://www.guttmacher.org/sites/default/files/factsheet/fb_induced_ abortion.pdf [https://perma.cc/y8lj-nqk4]. 179 california v. cabazon band of mission indians, 480 u.s. 202, 211 (1987). 180 sterilization is generally covered by health insurance plans. wis. admin. code d.h.s. § 107.06(3) (2018). wisconsin law grants hospitals the right to deny patients seeking sterilization or abortion. wis. stat. § 253.09 (2017–2018). 181 there appear to be no statutory provisions in wisconsin regarding in vitro fertilization. 182 wisconsin hospitals must provide sexual assault victims with emergency contraception upon their request; emergency contraception does not include abortifacients. wis. stat. § 50.375 (2017–2018). contraception is available per the state’s affordable care act medicaid expansion. the only existing prohibition on contraception is that it may not be sold in a vending machine at a public school. wis. stat. § 450.16 (2017–2018). this is hardly a criminal prohibition. 183 cabazon, 480 u.s. at 210. 124 columbia journal of race and law [vol. 9:1 in regulating gambling.184 california argued that gambling attracts organized crime and that the federal government had abrogated sovereignty with respect to organized crime pursuant to the organized crime control act (“occa”). while the court acknowledged the state’s interest in crime prevention, it ruled that this interest was not nearly as weighty as the tribes’ interest. as a state, california could not enforce a federal criminal statute, nor had the occa ever been applied to bingo games. on the other hand, the gaming operations created substantial revenue and employment opportunities for the tribes. financial stability is crucial to achieving economic development and tribal self-determination. with greater financial stability, tribes may properly administer their governments, create social welfare programs for members, and invest in cultural preservation initiatives such as museums or language programs. the california anti-bingo statute could not possibly apply to the bingo games because it would severely undermine the tribes’ sovereignty. moreover, the federal government has a vested interest in tribal “self-sufficiency and economic development.”185 applying this logic to fire thunder’s proposal, the tribe’s interests outweigh the state’s interests such that the tribe must retain jurisdiction over abortion. the tribe retains its interests in self-determination and sovereignty. it also retains an interest in asserting jurisdiction over public health matters on its land. on the other hand, the state has constitutionally recognized interests in fetal life, the health and safety of patients, and limiting access to certain kinds of post-viability abortions. but presumably, the tribe shares some of the state’s interests—namely preserving the health and safety of patients. given that abortions are incredibly safe,186 184 id. at 212–22. 185 new mexico v. mescalero apache tribe, 462 u.s. 324, 334–35 (1983) (quoting white mountain apache tribe v. bracker, 448 u.s. 136, 143 (1980)) (holding that the state may not regulate on-reservation hunting or fishing by tribal members and nonmembers, which were regulated by a series of federally-approved tribal ordinances). 186 see elizabeth g. raymond & david a. grimes, the comparative safety of legal induced abortion and childbirth in the united states, 119 obstetrics & gynecology 215, 217 (2012) (“legal abortion in the united states remains much safer than childbirth. the difference in risk of death is approximately 14-fold.”); ushma d. upadhyay et al., incidence of emergency department visits and complications after abortion, 125 obstetrics & no. 3:95] roe on the rez 125 fetuses are generally incapable of feeling pain during the procedure,187 and late-term abortions are incredibly rare,188 the tribe’s interest in preserving jurisdiction over abortion should be given greater weight. the federal government’s interests also align with tribal interests. the federal government has an interest in tribal self-governance and economic development.189 tribal jurisdiction over abortion pertains to tribal self-governance. abortion access also serves the economic development interest, weakening any grasp for jurisdiction by the state. family planning bestows great social and economic benefits on communities. research indicates that unplanned pregnancies, especially at a younger age, hinder educational and professional achievement for women.190 this research largely focuses on contraception, but the findings apply to abortion. indeed, women who give birth after being denied an abortion have higher odds of poverty than women who had an abortion.191 women denied abortions were more likely to receive gynecology 175 (2015) (finding that after abortion, the incidence of any complication is 2.1% and the incidence of major complications is 0.23% in a closed system with data from all sources of care and complete follow-up). 187 lee et al., supra note 153. 188 guttmacher inst., supra note 178. 189 see cohen’s handbook, supra note 19, § 1.07 (referring to last fifty-odd years of federal indian policy as the “self-determination era” and explaining congress’s attempts to grant tribes greater control over their everyday affairs and governance). 190 martha j. bailey et al., the opt-in revolution? contraception and the gender gap in wages, 4 am. econ. j. 225 (2012) (finding that contraception access amounted to one-third of wage gains for women born in the postwar period); heinrich hock, the pill and the college attainment of american women and men (sept. 15, 2005) (unpublished manuscript), https://paa2006.princeton.edu/papers/61745 [https://perma.cc/mhy2-sjm8] (finding that both men and women see increased college completion with increased access to contraception). 191 diane greene foster et al., socioeconomic outcomes of women who receive and women who are denied wanted abortions in the united states, 108 am. j. pub. health 407 (2018). this study uses data from the turnaway study—a longitudinal study by advancing new standards in reproductive health, a research group at the university of california, san francisco. the turnaway study examines the long-term effects of unintended pregnancy. for more, see turnaway study, advancing new standards reprod. health, https://www.ansirh.org/research/turnaway-study [https:// perma.cc/426m-b7rq]. 126 columbia journal of race and law [vol. 9:1 public assistance and less likely to be employed full time.192 these differences are statistically significant four years after the denial of abortion.193 access to abortion and family planning increases women’s earning potential, thereby increasing economic development in the greater community. because tribal and federal interests in economic development are met by abortion access, wisconsin should not have jurisdiction over abortion in indian country. tribes, in retaining such jurisdiction, retain self-determination. b. whether congress would retaliate and what may happen next if it did congress may, in response to a tribe’s decision to pursue fire thunder’s proposal, abrogate tribal sovereignty with respect to abortion. congress has rarely limited tribal sovereignty but has the authority to do so.194 however, professor matthew fletcher argues that as tribes use their immunity “in ways not dreamed of by the . . . court, congress may well pay more attention.”195 for example, former democratic senator claire mccaskill of missouri introduced a bill to limit tribal sovereignty in the patent context.196 the bill was a response to pharmaceutical company allergan’s transfer of patents to the saint regis mohawk tribe.197 allergan transferred ownership of certain patents to shield them from challenge by generic drug companies.198 the bill saw little activity 192 foster et al., supra note 191, at 411. 193 id. 194 see, e.g., united states v. dion, 476 u.s. 734, 740 (1986) (holding that the bald eagle protection act did abrogate the yankton sioux tribe’s treaty right to hunt); fed. power comm’n v. tuscarora indian nation, 362 u.s. 99, 118 (1960) (holding that the federal power act applies to tribes because congress specifically intended for its applicability by expressly defining indian land). 195 matthew l.m. fletcher, rights without remedies, 11 n.y.u. j.l. & liberty 236, 255–56 (2017). 196 s. 1948, 115th cong. (2017). 197 adam davidson, why is allergan partnering with the st. regis mohawk tribe?, new yorker (nov. 20, 2017), https://www.newyorker.com/ magazine/2017/11/20/why-is-allergan-partnering-with-the-st-regis-mohawktribe [https://perma.cc/9znq-vf3s]. 198 jan wolfe, allergan ruling casts doubt on tribal patent strategy, reuters (oct. 17, 2017), https://www.reuters.com/article/us-allergan no. 3:95] roe on the rez 127 after its introduction, and its sponsor lost reelection in november 2018.199 but it suggests that congress is willing to act should it perceive the use of tribal sovereignty as a “monetizable commodity that can be purchased by private entities as part of a scheme to evade their legal responsibilities.”200 congress may abrogate tribal sovereignty in an effort to limit access to abortion. in january 2018, the president of the anti-abortion organization march for life said that the 115th congress was the “most pro-life congress in a generation.”201 though this is a dramatic statement that likely exaggerated congress’s track record on abortion, the republican-dominated congress did attempt to enact several anti-abortion measures during its tenure. for instance, the house of representatives passed a twenty-week ban, though the senate did not debate or voted on it.202 the congressional sponsor of the twenty-week ban also introduced a bill that would require doctors to “exercise the same degree of professional skill, care, and diligence to preserve the life and health of [a] child” somehow “born alive” after an abortion, as they would to “any other child born alive at the same gestational age.”203 given the failure of these two extreme antiabortion measures, some anti-abortion organizations criticized the 115th congress for not being sufficiently successful in restricting abortion.204 patents-analysis/allergan-ruling-casts-doubt-on-tribal-patent-strategy-idusk bn1cm369 [https://perma.cc/jv6r-q32z]. 199 nicholas fano, josh hawley defeats claire mccaskill in missouri senate race, n.y. times (nov. 6, 2018), https://www.nytimes.com/2018/11/06/ us/politics/josh-hawley-claire-mccaskill-missouri.html [https://perma.cc/xp99genr]. 200 allergan, inc. v. teva pharm. usa, inc., no. 2:15-cv-1455-wcb, 2017 wl 4619790, at *3 (e.d. tex. oct. 16, 2017) (granting motion to join tribe as a co-plaintiff). 201 leonard, supra note 166. see generally pain-capable unborn child protection act, h.r. 36, 115th cong. (2017). 202 see h.r. 36. 203 born-alive abortion survivors protection act, h.r. 37, 115th cong. § 3 (2017). 204 see nicholas wolfram smith, pro-life progress report: mixed record for congress, nat’l cath. reg. (oct. 4, 2017), http://www.ncregister .com/daily-news/pro-life-progress-report-mixed-record-for-congress [https:// perma.cc/44c7-slmg] (“[w]e are incredibly disappointed that we have a pro-life president and a pro-life congress, and yet somehow the nation’s largest abortion business is still being funded . . . .”); carol tobias & marjorie 128 columbia journal of race and law [vol. 9:1 the new congress is comprised of a republicancontrolled senate and democrat-controlled house of representatives.205 if the 116th congress were to pass a statute abrogating tribal sovereignty over abortion—which is unlikely given the democratic majority in the house— president trump would certainly sign such a bill. during the first year of his first term, president trump and executive agencies effectuated several anti-abortion policies. first, trump restored the mexico city policy, otherwise known as the global gag rule, which prohibits foreign ngos from using united states funding to provide abortions or counsel patients on or refer patients for abortion.206 next, the department of health and human services (hhs) issued two interim final rules that greatly expanded religious and moral exemptions to the contraception mandate under the affordable care act.207 in response, the district court for the northern district of california issued a preliminary injunction against the expansion of religious exemptions to the contraception mandate.208 additionally, in january 2018, the centers for medicare and medicaid services under hhs rescinded obamaera guidance that permitted planned parenthood and other abortion providers to receive medicaid funding—an action dannenfelser, republican congress must include crucial pro-life protections to earn our support, hill (oct. 30, 2017), http://thehill.com/opinion/health care/357885-republican-congress-must-include-crucial-pro-life-protections-toearn-our [https://perma.cc/qnr3-m5rf] (“we urge congress to go back to the drawing board on health care reform and address the abortion funding catastrophe created by obamacare . . . .”). 205 kelsey snell, election results give split decision: democrats win house & gop keeps senate majority, npr (nov. 6, 2018), https://www. npr.org/2018/11/06/664506915/republicans-keep-senate-majority-as-democrats -make-gains-in-the-house [https://perma.cc/5b5m-5p9w]. 206 presidential memorandum regarding the mexico city policy, 82 fed. reg. 8495 (jan. 25, 2017). 207 moral exemptions and accommodations for coverage of certain preventive services under the affordable care act, 82 fed. reg. 47,838 (oct. 13, 2017) (to be codified at 26 c.f.r. pt. 54; 29 c.f.r. pt. 2590; 45 c.f.r. pt. 147); religious exemptions and accommodations for coverage of certain preventive services under the affordable care act, 82 fed. reg. 47,792 (oct. 13, 2017) (to be codified at 82 c.f.r. pt. 54; 29 c.f.r. pt. 2590; 45 c.f.r. pt. 147). 208 california v. health & human servs., 281 f. supp. 3d 806 (n.d. cal. 2017), aff’d in part, vacated in part sub nom. california v. azar, 911 f.3d 558 (2018). no. 3:95] roe on the rez 129 which may contravene federal law.209 in sum, the federal government’s administrative actions illustrate the executive branch’s anti-abortion sentiment. 1. the supreme court’s role should a challenge arise whether a court would overturn or uphold a statutory abrogation of tribal sovereignty depends on the precise language and subsequent application of interpretive principles in federal indian law. courts typically apply special canons of construction when deciding issues of indian law. the canons require that any ambiguity in a treaty, statute, agreement, or executive order be resolved in favor of the tribe.210 if a statute or other action somehow implicates indians despite no express mention of them, courts must “construe a statute abrogating tribal rights narrowly [and most favorably towards tribal interests].”211 courts must preserve tribal sovereignty unless congress expresses a clear and unambiguous intent otherwise.212 this is especially true if the congressional action abrogates treaty rights. there must be “clear evidence that congress actually considered the conflict between its intended action on the one hand and indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.”213 209 ctrs. for medicare & medicaid servs., u.s. dep’t of health & human servs., smd no. 18-003, rescinding smd # 16-005 clarifying “free choice of provider” requirement (2018); jessie hellmann, trump administration rescinds obama guidance on defunding planned parenthood, hill (jan. 19, 2018), http://thehill.com/policy/healthcare/369723trump-administration-rescinds-guidance-protecting-planned-parenthoods [https://perma.cc/nds7-uc4l]. 210 bryan h. wildenthal, federal labor law, indian sovereignty, and the canons of construction, 86 or. l. rev. 413, 489–502 (2007). 211 cohen’s handbook, supra note 19, § 2.02 n.5 (quoting rincon band of luiseno mission indians of the rincon reservation v. schwarzenegger, 602 f.3d 1019, 1028 n.9 (9th cir. 2010)). 212 minnesota v. mille lacs band of chippewa indians, 526 u.s. 172, 202 (1999) (“congress may abrogate indian treaty rights, but it must clearly express its intent to do so.”); santa clara pueblo v. martinez, 436 u.s. 49, 59–60 (1979) (holding that federal statutes will not be interpreted to “interfere[] with tribal autonomy and self-government . . . . in the absence of clear indications of legislative intent” (footnote omitted) (citations omitted)). 213 united states v. dion, 476 u.s. 734, 740 (1986). 130 columbia journal of race and law [vol. 9:1 to successfully limit tribal authority to undertake fire thunder’s proposal, congress must act unequivocally. however, scholars and native media outlets have argued that the supreme court has a poor record on issues of federal indian law.214 therefore, an anti-native court is more likely to uphold an abrogation, as it does not favor the rights of tribes, regardless of the canons of construction. c. whether the proposal is constitutional should roe be overturned the supreme court’s abortion jurisprudence is likely to shift in the coming years, which may lead to the elimination of the constitutional right to abortion. justice anthony kennedy, who announced his retirement in late june 2018,215 has been criticized for leaving a “legacy of anti-tribal votes.”216 however, justice kennedy is also regarded as a swing vote on abortion.217 justice kennedy’s legacy on abortion is therefore complicated.218 he upheld the federal government’s ban on so-called 214 see matthew l.m. fletcher, the supreme court’s indian problem, 59 hastings l.j. 579 (2008) (“[f]ederal indian law as practiced before the supreme court is in serious normative decline . . . [there is a] general reduction in indian law cases decided on the basis of established precedent, an increase in cases decided without a guiding legal theory, and an increase in cases that appear to be decided on the basis of the gut reaction of the justices.”). 215 michael d. shear, supreme court justice anthony kennedy will retire, n.y. times (june 27, 2018), https://www.nytimes.com/ 2018/06/27/ us/politics/anthony-kennedy-retire-supreme-court.html [https://perma.cc/gz6r -mfca]. 216 matthew fletcher, justice anthony kennedy wasn’t good for indian country, high country news (july 6, 2018), https://www.hcn.org/arti cles/tribal-affairs-why-justice-anthony-kennedy-wasnt-good-for-indian-country [https://perma.cc/xv7x-7wkz] (“kennedy was so disturbed by tribal jurisdiction over non-indians that he would angrily protect a sexual predator from the horror of being subject to a tribal court, a position completely in line with his previous stands on indian cases.”). 217 borgmann, supra note 80, at 292. 218 scholars and advocates would largely agree. see, e.g., patrick d. schmidt & david a. yalof, the “swing voter” revisited: justice anthony kennedy and the first amendment right of free speech, 57 pol. res. q. 209, 210 (2004) (“for every casey decision that seemingly places kennedy towards the more moderate-to-liberal end of the court’s ideological spectrum, one can find a subsequent decision like stenberg v. cahart (2000) [sic], in which kennedy refused to join fellow justices david souter and sandra no. 3:95] roe on the rez 131 “partial-birth” abortions, also known as the dilation and extraction (d&x) method of performing late-term abortions, noting more than once that a woman may “regret her choice to abort.”219 he also wrote a partial concurrence and dissent in hodgson v. minnesota, indicating that he would uphold minnesota’s two-parent notice statute, which required the physician to notify both of the minor’s parents before performing an abortion.220 however, he also sided with the more liberal justices in casey and whole woman’s health, cases which reaffirmed roe’s central holding.221 in the wake of kennedy’s retirement, advocates and media outlets on both sides warned of roe’s demise.222 during his presidential campaign, president trump vowed to nominate judges who would overturn roe.223 several weeks after kennedy’s retirement announcement, president trump announced that he would nominate district of columbia circuit judge brett kavanaugh to the supreme court.224 anti-abortion day o’connor in helping to invalidate a partial-birth abortion restriction in nebraska.”). 219 gonzales v. carhart, 550 u.s. 124, 159 (2007). d&x involves dilating the woman’s cervix, extracting the fetus by its feet, and then puncturing the fetal head and compressing the skull so the remains may pass through the cervix. julie rovner, ‘partial-birth abortion’: separating fact from spin, npr (feb. 21, 2006), https://www.npr.org/2006/02/21/5168 163/partial-birth-abortion-separating-fact-from-spin [https://perma.cc/9kja-k hhr]. 220 see hodgson v. minnesota, 497 u.s. 417, 481 (1990) (kennedy, j., concurring in part and dissenting in part). 221 see planned parenthood of se. pa. v. casey, 505 u.s. 833, 846 (1992); whole woman’s health v. hellerstedt, 136 s.ct. 2292 (2016). 222 sarah mccammon, what justice kennedy’s retirement means for abortion rights, npr (june 28, 2018), https://www.npr.org/2018/06/28/ 624319208/what-justice-kennedy-s-retirement-means-for-abortion-rights [https://perma.cc/f9qa-tk78] (noting that anti-abortion groups have “seized the moment” to discuss roe’s overturning, while reproductive justice organizations are “‘extremely concerned’” (quoting helene krasnoff, vice president of public policy, litigation, and law at planned parenthood federation of america)). 223 dan mangan, trump: i’ll appoint supreme court justices to overturn roe v. wade abortion case, cnbc (oct. 19, 2016), https://www. cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturnroe-v-wade-abortion-case.html [https://perma.cc/3jtk-taaz]. 224 mark landler & maggie haberman, brett kavanaugh is trump’s pick for supreme court, n.y. times (july 9, 2018), https:// www.nytimes.com/ 2018/07/09/us/politics/brett-kavanaugh-supreme-court.html [https://perma.cc/4 pmb-etv2]. 132 columbia journal of race and law [vol. 9:1 organizations heralded the nomination.225 on october 6, 2018, the senate confirmed brett kavanaugh to the supreme court.226 as with justice kennedy, justice kavanaugh has a complicated and inconsistent track record on abortion. kavanaugh encountered abortion in his judicial career in garza v. hargan. the plaintiff in garza, a seventeen-year-old undocumented immigrant, discovered she was pregnant while detained in a federal shelter.227 she sought an abortion, but the office of refugee resettlement (orr) prevented her from pursuing medical care.228 the plaintiff’s guardian ad litem, who was represented by the american civil liberties union, sued orr and hhs officials.229 the district court issued a temporary restraining order and ordered hhs to permit the plaintiff to leave the shelter for her abortion.230 en banc, the d.c. circuit affirmed the order.231 judge kavanaugh dissented, writing that the panel’s decision created “a new right for unlawful immigrant minors in u.s. government detention to obtain immediate abortion on demand.”232 kavanaugh further noted that roe and casey are “precedents we must follow.”233 however, in leaked documents obtained by the new york times, judge kavanaugh wrote in a march 2003 email that “not . . . all legal scholars refer to roe as settled law,” since the supreme court had three justices who would 225 see, e.g., press release, susan b. anthony list, sba list praises judge brett kavanaugh as supreme court pick (july 9, 2018), https://www. sba-list.org/newsroom/press-releases/sba-list-praises-judge-brett-kavanaughsupreme-court-pick [https://perma.cc/g9wt-eek7]. 226 sheryl gay stolberg, kavanaugh is sworn in after close confirmation vote in senate, n.y. times (oct. 6, 2018), https://www.nytimes .com/2018/10/06/us/politics/brett-kavanaugh-supreme-court.html [https:// perma.cc/9tx5-aydf]. 227 see recent case, garza v. hargan, 874 f.3d 735 (d.c. cir. 2017) (en banc) (per curiam), 131 harv. l. rev. 1812, 1812 (2018). 228 id. at 1813. 229 id. 230 temporary restraining order at 1, garza v. hargan, 874 f.3d 735 (d.c. cir. 2017) (en banc) (per curiam) (no. 17-cv-02122). 231 id. at 752. 232 id. at 752 (kavanaugh, j., dissenting). 233 id. no. 3:95] roe on the rez 133 overrule precedent.234 it is unclear whether justice kavanaugh would vote to overturn roe and its progeny. if roe were explicitly overturned, there would be no constitutionally protected or recognized right to abortion; states would be free to protect, prohibit, and regulate abortion. should a state criminalize abortion, a tribal clinic performing abortions would likely be subject to state criminal jurisdiction under cabazon. if a state regulates abortion through its health or child welfare codes, then state jurisdiction may not necessarily apply. a state-by-state analysis would be necessary to determine the applicability of state jurisdiction.235 d. practical considerations for tribes that wish to undertake cecilia fire thunder’s proposal setting aside the possibility of roe’s demise and congressional abrogation, there are practical concerns for a tribe to consider if it chooses to pursue fire thunder’s proposal. tribes must have the capital to invest in establishing the clinic. such capital may be profits from gaming enterprises, grants, or charitable donations. indeed, fire thunder received donations from people across the united states when she announced that she wished to open a clinic, perhaps in partnership with planned parenthood.236 in 2017, planned parenthood opened an eight-million-dollar abortion clinic in milwaukee,237 which 234 see charlie savage, leaked kavanaugh documents discuss abortion and affirmative action, n.y. times (sept. 6, 2018), https://www. nytimes.com/2018/09/06/us/politics/kavanaugh-leaked-documents.html [https: //perma.cc/9uvp-g39m]. in a memorandum about kavanaugh’s testimony before the senate judiciary committee, the center for reproductive rights identified the three justices as then chief justice rehnquist, justice scalia, and justice thomas, who dissented in casey. 235 the center for reproductive rights has compiled a state-by-state analysis of what would happen if roe fell. the report gathered data on abortion bans predating roe and whether states have laws that would immediately prohibit abortion should the court overrule roe. what if roe fell?, ctr. for reprod. rts., https://www.reproductiverights.org/what-ifroe-fell [https://perma.cc/sz76-9e2r]. 236 fire thunder’s lightning, supra note 5. fire thunder’s impeachment was a result of these donations; the tribal council alleged that she solicited these donations using her title without their authorization. id. 237 shamane mills, planned parenthood opens new clinic, wis. pub. radio (oct. 6, 2017), https://www.wpr.org/planned-parenthood-opensnew-clinic [https://perma.cc/esm9-cp42]. 134 columbia journal of race and law [vol. 9:1 private donors financed after wisconsin cut the organization’s funding.238 it would likely cost even more for a tribe to open a similar modern and safe clinic. in rural areas, this cost may be higher if land is undeveloped. though state taxes would likely not apply, there may be federal taxes should congress levy them. lastly, there would be legal costs related to counsel on diverse matters such as commercial contracts, defending the constitutionality of the clinic against anti-abortion groups,239 and medical malpractice. for tribes that are independently wealthy and/or have preexisting tribal health care facilities, these costs would be relatively minimal. tribes may levy a small tax on members to support operation costs. opening a clinic poses other logistical concerns. tribes must recruit doctors, nurses, social workers, and staff who are trained in providing culturally competent reproductive care. this may require the provision of tribe-specific training and assessments. for certain populations that have preserved their native languages, it may also require hiring interpreters. cultural competency is especially important considering that twenty-three percent of natives reported experiencing discrimination at a health clinic or doctor’s office.240 tribes may need to hire and train law enforcement to oversee protests or address acts or threats of violence against a clinic.241 however, these new positions create employment opportunities for 238 id. 239 tribal sovereign immunity likely prevents entities or individuals from filing suit against the tribe, the clinic, and clinic employees in their official capacities. see lewis v. clarke, 137 s. ct. 1285 (2017); santa clara pueblo v. martinez, 436 u.s. 49, 58–59 (1978); breakthrough mgmt. grp., inc. v. chukchansi gold casino & resort, 629 f.3d 1173 (10th cir. 2010). this is subject to change should congress ever abrogate sovereign immunity in this context. congressional abrogation requires a clear expression and intent to limit immunity. it would not preclude suit against employees in their individual capacities should there be colorable claims. 240 npr et al., discrimination in america: experiences and views of native americans 8 (2017), https://www.rwjf.org/content/dam/farm/re ports/surveys_and_polls/2017/rwjf441678 [https://perma.cc/x44p-cc8u]. 241 there is also the possibility that nonmembers may come to the tribe’s clinic to protest or incite violence. one of tribes’ key rights as sovereigns is the ability to exclude persons from tribal territory, which exists independent of any general jurisdictional authority. merrion v. jicarilla apache tribe, 455 u.s. 130, 141 (1982). tribes should exercise this right if necessary to ensure the safety of an abortion clinic or provider. no. 3:95] roe on the rez 135 tribe members. a new influx of jobs boosts tribal economic development. 1. services a tribal clinic should provide tribal clinics should provide a wide variety of services under the umbrella of reproductive health, such as abortion, contraception, and sterilization. tribes should offer medication abortion242 and aspiration,243 the two most common firsttrimester abortion methods. they should also offer dilation and evacuation (d&e) abortions, another common abortion method typically performed sixteen weeks lmp.244 tribes may impose different (or no) gestational limits for abortion. late-term abortions are extremely rare,245 and there is little data on the reasons women may seek them.246 providing medication abortion, aspiration, and d&e abortions may limit the need for late-term abortions, but offering the service may accommodate mothers who discover congenital defects or severe maternal morbidities, such as hemorrhage,247 later in pregnancy. currently, only eight states have no restrictions on abortion after viability or a specific gestational age.248 on the 242 the abortion pill, supra note 150. 243 aspiration, also known as suction abortion or vacuum aspiration, is a first-trimester abortion method. it is usually performed during the last weeks of the first trimester at around fourteen to sixteen weeks lmp. inclinic abortion, planned parenthood, https://www.plannedparenthood.org/ learn/abortion/in-clinic-abortion-procedures [https://perma.cc/w86l-5gna]. 244 what happens during an in-clinic abortion?, planned parenthood, https://www.plannedparenthood.org/learn/abortion/in-clinic-abor tion-procedures/what-happens-during-an-in-clinic-abortion [https://perma.cc/ 23lp-qwfy]. 245 janet e. gans epner et al., late-term abortion, 280 [j]ama 724, 725 (1998) (“the number of abortions performed after [twenty-six weeks lmp] nationwide is estimated between 320 and 600.”). 246 aida torres & jacqueline darroch forrest, why do women have abortions?, 20 fam. plan. persp. 169 (1988) (finding that questionnaire responses suggest that out of 1900 women surveyed who sought an abortion sixteen weeks or more lmp, the largest proportion reported that it was because they miscalculated gestational age or did not realize that they were pregnant, followed by difficulty arranging the abortion). 247 william m. callaghan et al., severe maternal morbidity among delivery and postpartum hospitalizations in the united states, 120 obstetrics & gynecology 1029 (2012). 248 an overview of abortion laws, supra note 14. 136 columbia journal of race and law [vol. 9:1 other hand, twenty states have banned late-term abortions.249 federal law has banned so-called “partial-birth” abortions since 2003, also known as the d&x method of performing late-term abortions.250 because the indian commerce clause grants the federal government plenary power over tribes,251 tribal clinics may not perform d&x abortions unless the mother’s life is in danger. 2. tribes should consider permitting nonnative people to seek care at a clinic tribes should consider permitting nonmember visitors to seek services at the clinic, because it may dramatically improve access to abortion and other services for that population. tribes may, of course, bar nonmembers.252 this is one of several rights guaranteed to tribes as sovereigns. however, granting nonmembers access to the clinics would greatly affect the landscape of reproductive health in the united states, especially in states hostile towards abortion. because nonmember women would be on tribal land, the state could not exercise jurisdiction over their actions; it is akin to a woman going to a different state to seek an abortion. especially in the six states with only one abortion clinic,253 thousands of women would have greater options for abortion, contraception, sterilization, and sexual education. women in states hostile towards abortion may have to travel long distances to reach a tribal clinic, but they would not be additionally burdened by onerous delays and unnecessary requirements. these women would not be subject to mandatory waiting periods,254 which are especially burdensome on 249 see id. 250 partial-birth abortion ban act of 2003, 18 u.s.c. § 1531 (2017) (upheld in gonzales v. carhart, 550 u.s. 124 (2007)). 251 u.s. const. art. i, § 8, cl. 3. 252 id. 253 sanders, supra note 15. 254 according to one source, nearly six out of ten women are subject to mandatory delays when seeking an abortion; fifty-nine percent of the united states population resides in a mandatory waiting period state. samantha allen, 6 in 10 women now subjected to abortion waiting period laws, daily beast (mar. 1, 2016), https://www.thedailybeast.-com/6-in-10women-now-subjected-to-abortion-waiting-period-laws [https://perma.cc/fl s6-k492]. there are issues with concluding that because fifty-nine percent no. 3:95] roe on the rez 137 poor women and rural women.255 these waiting periods also accomplish little by way of preventing abortions, as nearly eighty-seven percent of women are certain of their decision to seek abortion.256 mandatory waiting periods have been associated with a higher proportion of second-trimester abortions as well as a greater number of women seeking abortions in a different state.257 in states where telemedicine is permitted, telemedicine medication abortion may be an option for non of people reside in states with mandatory waiting periods, six out of ten women are subject to the waiting periods. waiting periods are typically waivable in cases of rape, incest, and danger to the mother’s health and life. however, the general point that an alarming number of women are subject to these regulations still stands. 255 when waiting periods are instituted, women must often take multiple days off from work—one for the initial appointment and another for the procedure itself. women may also take more time off to recover, depending on the type of procedure. poor women are least likely to have an emergency fund to cover these expenses and time off from work, especially because health insurance providers often do not cover elective abortions. for an illustrative example of the issues poor women face in seeking an abortion, see jeff deeney, if more funding went to safe, legal abortions, would kermit gosnell have happened?, atlantic (apr. 15, 2013), https://www.theatlantic.com/health/archive/2013/04/if-more-funding-wentto-safe-legal-abortions-would-kermit-gosnell-have-happened/274974/ [https:// perma.cc/9x4y-zkp9] (“what’s worse is that the cost of the abortion, $300, would break [her] budget. there was no such thing as an extra $300 in [her] world.”). rural women are also disproportionately affected, as clinics tend to be concentrated in larger cities. rural women may be required to travel hundreds of miles over multiple days. for more, see committee opinion: health disparities in rural women, 123 am. c. obstetricians & gynecologists 384 (2014) (“rural women seeking abortions in 2008 traveled substantially greater distances than nonrural women. thirty-one percent traveled more than 100 miles and an additional 42.9% traveled between 50 miles and 100 miles, compared with 3.8% and 7%, respectively, for nonrural women.” (footnote omitted)). 256 diana greene foster et al., attitudes and decision making among women seeking abortions at one u.s. clinic, 44 persp. on sexual & reprod. health 117, 120 (2012). 257 theodore j. joyce et al., guttmacher inst., the impact of state mandatory counseling and waiting period laws on abortion: a literature review 9–10 (2009), https://www.guttmacher.org/sites/default/ files/report_pdf/mandatorycounseling.pdf [https://perma.cc/tk9l-f5gl]; see also ushma d. upadhyay et al., denial of abortion because of provider gestational age limits in the united states, 104 am. j. pub. health 1687, 1691 fig.1 (2014) (showing that sixty-seven percent of near-limit abortion patients and fifty-eight percent of patients rejected for being past the provider’s gestational age reported travel and procedure costs as causing their delay in seeking abortion). 138 columbia journal of race and law [vol. 9:1 member women, thereby reducing patients’ transportation costs and making the clinic run more efficiently. women would not be required to receive factually incorrect counseling about how the fetus feels pain and/or the possibility of infertility or breast cancer as a result of abortion.258 providers would not be required to convey scientifically inaccurate information, such as misinformation about fetal pain, or ask patients if they wish to view the image from a mandatory ultrasound. e. recommendations for tribes that wish to undertake cecilia fire thunder’s proposal and benefits a clinic would confer to native women first, a tribe seeking to establish a reproductive clinic should consider whether its membership agrees with the initiative. though the establishment of clinics in indian country would address the growing inaccessibility of abortion, it is ultimately a tribe’s decision to pursue such a venture. there are currently 567 federally recognized tribes in the united states.259 each of these entities is sovereign and represents a broad spectrum of beliefs about abortion. tribes should consider voter referendums to gauge community interest. tribes may also conduct research to assess whether there is a need for comprehensive reproductive health services on the reservation before undertaking such an endeavor. if a tribe’s membership were willing to open a clinic, tribal leadership should consider following the guidance of the american college of obstetricians and gynecologists (acog) for increasing abortion access.260 though acog’s recommendations are specifically tailored to congress, the general advice is applicable. first, tribes should repeal antiabortion legislation that may interfere with the patientprovider relationship, if such laws exist. second, tribes should 258 mandatory counseling for abortion, guttmacher inst. (aug. 24, 2017), https://www.guttmacher.org/print/evidence-you-can-use/mandatorycounseling-abortion [https://perma.cc/s7nb-9laj]. 259 indian entities recognized and eligible to receive services from the united states bureau of indian affairs, 82 fed. reg. 4915, 4915 (jan. 17, 2017). 260 committee opinion: increasing access to abortion, 124 am. c. obstetricians & gynecologists 1060 (2014). no. 3:95] roe on the rez 139 ensure that first-trimester abortion methods, namely medication abortion and aspiration, are widely available. third, they should employ “appropriately trained and credentialed advanced practice clinicians in accordance with individual state licensing requirements.”261 they may also institute their own licensing requirements if necessary. fourth, tribes should ensure that law enforcement works in tandem with clinics to ensure patient and provider safety. lastly, tribes should establish these clinics as holistic reproductive health care providers. comprehensive reproductive health services should be made available to all tribal members. cecilia fire thunder envisioned a holistic clinic that provides abortion, contraception, sexual education, and support for sexual assault victims.262 this broad vision for reproductive services would meet community needs. native american women face disproportionately high rates of intimate partner violence,263 sexual assault,264 and unintended pregnancy.265 a tribal clinic could address these issues in a culturally competent manner by contracting clinicians with experience in indian country. there is a possibility that a clinic could reduce those rates by providing women with resources on family planning and educating the community about affirmative consent. these are laudable goals that would greatly impact women’s lives across indian country. v. conclusion cecilia fire thunder accurately assessed the constitutionality of her proposal. as sovereigns, tribes have the absolute right to open a reproductive health or women’s clinic on their lands. considering the arguments for and against the applicability of public law 280 in this context, it appears that because anti-abortion laws are regulatory, state jurisdiction does not apply to abortion in indian country. states hostile towards abortion cannot impose restrictive laws against tribes. 261 id. 262 aguilar, supra note 6. 263 malcoe et al., supra note 111. 264 perry, supra note 112. 265 schindler et al., supra note 113. 140 columbia journal of race and law [vol. 9:1 despite the considerable barriers to establishing a tribal clinic and the potential that congress may respond by statutorily abrogating sovereignty, this proposal is a worthwhile endeavor for interested tribes to pursue. a tribal clinic is better positioned to address women’s issues than the indian health service. native women would have greater access to abortions and other family planning services without the burdens of onerous and medically unnecessary barriers to care. in addition, nonmember women, if permitted to access the clinic, would greatly benefit because they would have more options for reproductive health care. a tribal clinic would grant women, native and non-native alike, greater autonomy over their bodies and their lives. at the core of tribal sovereignty is the right to retain autonomy over the self. cecilia fire thunder recognized the intersection between reproductive justice, women’s rights, and tribal self-determination and sovereignty. future generations of tribal leaders should heed her counsel. microsoft word 1 nguyen final.docx 2014 columbia journal of race and law 97 china’s apologetic justice: lessons for the united states? xuan-thao nguyen* many scholars have criticized congressional apology resolutions for slavery as inadequate and ineffective. ironically, congress may look to china’s apologetic justice in intentional intellectual property infringements to learn valuable lessons about apologies and how to incorporate them into righting wrongs. china requires that the wrongdoer who intentionally harms or infringes the intellectual property rights of another make a public apology in a newspaper or trade journal, in addition to stopping the harm and paying for compensatory damages and costs. if the wrongdoer does not timely make the public apology, the infringed party will draft and publish the public apology in the wrongdoer’s name and charge the associated expenses to the wrongdoer. again, the public apology is in addition to, not in lieu of, injunctive relief and damages. if congress approaches apology resolutions to slavery in a similar way to what china has done for remedies in intentional intellectual property infringements, congress will adequately address scholars’ criticisms. i. introduction……………………………………………………………. 98 ii. congress’s apology to slavery ……………………………….... 101 a. apology and recent scholarship on slavery redress ………….….. 101 b. congress’s apologetic statements ………………………………….. 103 iii. china and public apologies in intellectual property cases ………………………………………………………………………… 106 a. china’s intellectual property law …………………………………... 106 b. the chinese court’s decisions in intellectual property cases …… 113 1. zhang liny ing and other three persons v . guangyuan co. ltd . , chinese revo lu t ionary museum and gongmei corp . group ………………………………………………………… 113 * gerald l. bepko endowed chair in law, director of the center for intellectual property and innovation, indiana university mckinney school of law; former ip associate, fried frank harris shriver & jacobson (nyc) and pryor cashman sherman & flynn (nyc). a version of this article was presented at the howard university school of law symposium on civil rights and intellectual property. many thanks to all of my friends and colleagues in the united states and china for their contributions to this article. this article is part of a series of articles on comparative scholarship relating to chinese intellectual property remedies. thanks to pei-chih h. keene, sara alyn horner, and tiffany lunney for providing valuable research assistance. special thanks to erik darwin hille and khai-leif nguyenhille for their love, patience and support. copyright 2014 by professor xuan-thao nguyen. china’s apologetic justice: lessons for the united states vol. 4:2 98 2. golden human computer co. ltd v . hst sc i en t i f i c and techno log i ca l deve lopment center …………………………... 114 3. starbucks corporat ion and shanghai pres iden t cof f e e corpora t ion v . shanghai starbucks café company limit ed and shanghai starbucks café company limit ed , nanj ing road branch ………………………………………………………... 116 4. zhang chengzhi v . 21 vianet communica t ions techno logy co. , ltd . ……………………………………………………... 117 5. bei j ing baidu netcom sc i ence and techno logy co. , ltd . v . ts ing tao osun network technique co. , ltd . , e t . al . …….. 119 iv. apology context, content, and purpose …………………. 119 a. in newspapers or trade publications ……………………………… 123 b. recognition of the injured person’s rights ………………………... 124 c. admission of wrongs ………………………………………………... 124 d. cease the infringing conduct ………………………………………. 125 e. apologize and promise not to engage in future infringement …. 125 f. apologies as part of remedies ……………………………………… 125 v. from china with meaningful apologies: in addition to damages and injunction ………………………………………….. 126 vi. what congress can learn from china about meaningful apologies ……………………………………………... 127 vii. conclusion ……………………………………………………………… 128 i. introduction the recent visit by the president of the people’s republic of china, xi jinping, was an opportunity for the united states congress to express its contempt for the copious violations of u.s. intellectual property rights by chinese individuals and companies.1 perhaps, instead of unilaterally criticizing china for intellectual property theft and piracy, congress should take a respite and look to china for some insights. paradoxically, china’s intellectual property law may offer a lesson for congress to learn in regard to apologizing for slavery. 1 see generally jonathan weisman, u.s. to share cautionary tale of trade secret theft with chinese official, n.y. times feb. 14, 2012, at a10, http://www.nytimes.com/2012/02/15/world/asia/chinese-official-to-hear-trade-thefttale.html?_r=1. (see r16.6(f)) 2014 columbia journal of race and law 99 congress, in its separate chambers, passed resolutions apologizing for slavery.2 as noted by scholars, the apology was inadequate and ineffective. the apology included a disclaimer that served to disallow any attempt to use the apology to support any reparation claims.3 it did not accompany any programs to address past historic harms caused by slavery or jim crow. further, neither the house nor the senate disseminated or publicized its apology in any newspapers throughout the united states. the public hardly knew the existence of each chamber’s apology. looking across the pacific, congress may learn how an apology can be meaningful in addressing wrongs. specifically, under china’s intellectual property law, when a person is injured due to intentional infringement of the person’s name, trademark or copyright, the wrongdoer must cease the wrongful conduct and pay the injured person for either economic losses incurred by the injured person or the economic gains wrongfully accumulated by the wrongdoer. in addition, the wrongdoer in these cases must make a public apology to the injured person in a newspaper or trade publication. the apology is meaningful for several reasons: (1) the apology is both remorseful and purposeful in its content addressing the wrongs, (2) the apology is public and accessible since it is published in a daily newspaper or trade publication for the public to read, and (3) the apology is accompanied by both injunctive relief and monetary damages. it is undeniable that the redress question on slavery is a very complex matter. countless scholars, especially african-american scholars and activists, have devoted much effort over many of the past decades to lead the redress movement inside and outside the academy.4 this article acknowledges the profound works many scholars have generated and contributed towards legal and policy solutions to address the legacy of u.s. slavery. this article will not repeat and recite the valuable and voluminous scholarship on the legacy of slavery or reparations. instead, this article attempts to stretch outside u.s. boundaries for insights on addressing wrongs through meaningful apologies. china unexpectedly offers a new vista for thought. part i of this article surveys the most recent scholarship on slavery redress. it highlights recent scholarship in which apologies have been discussed as part of racial reconciliation. most scholars seem to agree that an apology alone cannot heal the horrific harms that were inflicted. atonement can only be achieved with a combination of apology and reparations. some scholars suggest apology, plus monetary compensation and nonrepetition methods. others argue for apology along with a thorough study of past injustice or specific constructions of sites and activities dedicated to educating the public about slavery. meaningful apologies for historic wrongs require apology-plus.5 2 see h. r. res. 194, 110th cong. (2008), available at http://thomas.loc.gov/home/gpoxmlc110/hr194_eh.xml; s. con. res. 26, 111th cong. (1st sess. 2009), available at http://www.govtrack.us/congress/bills/111/sconres26/text (the senate passed its resolution and referred it to house committee on june 18, 2009, but the house never voted on the resolution. see a concurrent resolution apologizing for the enslavement and racial segregation of african americans, govtrack.us, http://www.govtrack.us/congress/bills/111/sconres26 (last visited may 17, 2014) (tracking the status of the resolution). 3 krissah thompson, senate unanimously approves resolution apologizing for slavery, the washington post (june 19, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/06/18/ar2009061803877.html (reporting that scholars and activists like charles olgetree and randall robinson have asserted that the apology is not a substitution for restitution or reparation); yvonne r. davis, the us senate apologized for slavery. but we ain’t gettin’ 40 acres and a mule!, the huffington post blog (june 19, 2009, 1:53 pm), http://www.huffingtonpost.com/yvonne-rdavis/the-us-senate-apologized_b_217753.html (explaining that apology is meaningful if it comes with monetary payment). 4 see infra part ii.a. 5 see infra part ii.a. china’s apologetic justice: lessons for the united states vol. 4:2 100 this important scholarship has contributed to the policy debate on slavery redress and congress’s apologies for slavery. part ii analyzes, compares, and contrasts the apology statements passed by each chamber of congress. most importantly, congress’s apologies, which were merely written apologies, will be compared to the apology-plus that scholars have argued for.6 searching beyond u.s. boundaries, part iii voyages into chinese intellectual property law. remedies in chinese intellectual property law provide an apology-plus model. under the chinese civil code, trademark statute, copyright statute, and anti-unfair competition statute, courts issue injunctions against the wrongdoer and order the wrongdoer to make payments in the form of compensation or accounting of profits. in addition, courts instruct the wrongdoer to make a public apology in a newspaper or trade publication to eliminate any ill effects from the wrongdoer’s conduct. the content of the apology must be pre-approved by the court prior to publication. if the wrongdoer fails to comply, the court will allow the injured party to publish the apology statement and charge the wrongdoer with the associated cost. part iii.b studies five written decisions issued by courts in different parts of china concerning intentional acts of intellectual property infringement wherein apologies are part of the remedies.7 what does an apology look like under chinese law? part iv focuses on the content and context of apologies published in chinese newspapers or trade publications. a careful analysis of the apologies reveals that they share certain characteristics. they are widely accessible for the public to read. they are purposeful as they recognize the injured party’s rights, admit the wrongdoing, cease the infringing conduct, apologize, and promise not to engage in future infringement.8 part v suggests that congress can learn about meaningful apologies from china. the characteristics, content, and context of public apologies in chinese intellectual property cases are valuable lessons for congress to ponder, beyond the typical criticism of china as “the other,”9 a nation known mostly for intellectual property theft problems. meaningful apologies require apology-plus. the apology must be public and widely disseminated. the apology must be in addition to injunctions and damages. that means the wrongdoer makes payment to the injured person, and will only make a public apology if the wrongs are intentional and harmful to both the wrongdoer and the public.10 congress might dismiss china and its approach to meaningful apologies as confined to intellectual property law and frame the legacy of slavery as being “too big to apologize” meaningfully. congress might ignore any discussion on monetary reparation, studies of slavery injustice, construction of memorials and monuments, and programs to educate the public about slavery. the article concludes that it is certainly easier to continue tirades about china to gain some points in opinion polls. the problem remains. congress’s apology statements ring hollow.11 6 see infra part ii.b. 7 see infra part iii. 8 see infra part iv. 9 for a theoretical understanding and elaboration of the construction of “the other” through social and political processes of “othering”, see generally edward said, orientalism (1st ed., vintage books 1979) (1978). 10 see infra part v. 11 congress has done a better job in addressing the historic wrongs of interning japanese-americans during world war ii. see generally injustice and rectification 17 (rodney c. roberts ed., 2005). the civil liberties act of 1988 includes an apology from both president ronald reagan and the united states congress for the internment of japanese-americans during world war ii. the public apology was accompanied by $20,000 per victim for their losses and suffering. see civil liberties act of 1988, pub. l. no. 100-383, 102 stat. 904 (1988). for in-depth discussions on reparation to japanese americans for their internments, see generally eric k. yamamoto & liann ebesugawa, report on 2014 columbia journal of race and law 101 ii. congress’s apology to slavery as well-documented elsewhere, attempts to redress the harms of slavery have come in waves, dating back at least to the 1860’s.12 thoughtful scholarship on slavery redress provides a theoretical framework for addressing historic wrongs. activism, both inside and outside academia, led in part to congress issuing apology statements for slavery. a. apology and recent scholarship on slavery redress to seek redress for the horrific harms suffered by enslaved african-americans and their descendants, reparation activists have brought lawsuits alleging tort and unjust enrichment claims.13 they demand compensation for the unpaid labor that slaves performed and refund of the benefits the united states unjustly gained from slavery.14 in addition to litigation, scholars have developed a significant and important body of thoughtful scholarship to explore and examine the harms slavery inflicted on africanamericans and to propose different models to redress these harms.15 illustratively, in contemporary reparations scholarship, professor roy brooks’s influential work, atonement and forgiveness, emphasizes both apology and monetary reparation in a forward-looking racial reconciliation approach.16 righting wrongs requires the u.s. government to issue acknowledgments of redress: the japanese american internment, in the handbook of reparations 257-83 (pablo de greiff ed., 2006); eric k. yamamoto et al., race, rights, and reparation: law of the japanese american internment 390-406 (2001); mitchell t. maki, harry h.l. kitano & s. megan berthold, achieving the impossible dream: how japanese americans obtained redress (1999). 12 see also maxine burkett, reconciliation and non-repetition: a new paradigm for african american reparations, 86 or. l. rev. 99, 106-110 (2007) (providing a brief history of four major waves of reparations activism). 13 see also kaimipono david wenger, too big to remedy? rethinking mass restitution for slavery and jim crow, 44 loy. l.a. l. rev. 177, 188-191 (2010) (summary of three lawsuits, cato v. united states, 70 f.3d 1103 (9th cir. 1995); in re african-american slave descendants litigation, 375 f. supp. 2d 721 (n.d. ill. 2005); and alexander v. oklahoma, 382 f.3d 1026 (10th cir. 2004). see generally alfred l. brophy, reparations talk: reparations for slavery and the tort law analogy, 24 b.c. third world l.j. 81, 123-27 (2004) (devising tort-based claims and unjust enrichment arguments to remedying the evils of slavery). 14 see generally charles j. ogletree jr., chapter 17 addressing the racial divide: reparations, 20 harv. blackletter l.j. 115 (2004); alfred l. brophy, reparations: pro & con 11 (2006) (surveying the debates, litigations, and arguments on reparations). 15 roy l. brooks, getting reparations for slavery right: a response to posner and vermeule, 80 notre dame l. rev. 251, 272-87 (2004) (providing an overview of two dominant models, atonement and tort, for redress). the tort, litigation or settlement model seeks monetary compensation for the injured. this model is not concerned so much with apology, but with settling dispute. id. at 285. professor brooks noted that in recent years, however, the proponents for the tort model, such as professors charles ogletree and randall robinson, have moved closer to the atonement model. id. at 285 n. 171; alfred l. brophy, reconsidering reparations, 81 ind. l.j. 811, 842 (2006) (advocating a community-based welfare model to evaluating the morality and utility of reparations). see also randall robinson, the debt: what america owes to blacks (2001) (detailing comprehensive reparation programs to address slavery as well as the social and economic issues suffered by african-americans); charles p. henry, long overdue: the politics of racial reparations (2007) (detailing case studies of reparations); rhonda v. magee, the master's tools, from the bottom up: responses to african-american reparations theory in mainstream and outsider remedies discourse, 79 va. l. rev. 863, 914 (1993) (advocating that among “integration, separation and reparations, only the last simultaneously acknowledges official responsibility, promotes economic and cultural self-sufficiency, and relinquishes to african-americans a measure of control over the implementation of the remedy”). 16 roy l. brooks, atonement and forgiveness: a new model for black reparations 142 (2004). for additional readings on redressing slavery harms, see generally roy l. brooks, toward a perpetrator-focused model of slave redress, 6 afr.-am. l. & pol’y rep. 49 (2004); kevin hopkins, forgive u.s. our debts? righting the wrongs of slavery, 89 geo. l.j. 2531 (2001); alfreda robinson, corporate social responsibility and african american reparations: jubilee, 55 rutgers l. rev. 309, 358-84 (2003); paige a. fogarty, speculating a strategy: suing insurance companies to obtain legislative reparations for slavery, 9 conn. ins. l.j. 211, 224-41 (2002); donald aquinas lancaster, jr., the alchemy and legacy of the china’s apologetic justice: lessons for the united states vol. 4:2 102 the atrocity, make an admission of wrongful conduct, and apologize to the injured.17 the moral obligation to apologize, however, would ring hollow if the apology is not accompanied by concrete, tangible measures of reparation.18 professor alfred brophy thoroughly examined the pros and cons of reparations in his book and offers that apologies can be “part of a meaningful program of repair and reconciliation.”19 the harms inflicted by historic wrongs may be “best repaired” by a study of past injustices and by apologies.20 the apology, professor brophy emphasizes, must be sincere in order for it to be valuable and meaningful.21 other scholars like professor maxine burkett, argue that among the three essential elements of redressing slavery—apology, monetary compensation, and nonrepetition through reconciliation—the last element is the most important component for a successful reparations campaign.22 the nonrepetition method aims to “challenge and dismantle the attitudes or infrastructures from which wrongful acts emerged” and therefore deter future bad acts, resulting in “ultimate, complete, and successful repair.”23 the model requires multiracial, multiethnic, and cross-class reconciliation to ensure nonrepetition.24 likewise, professor carlton walterhouse analyzed rectificatory justice theory and advocated for a “collective memory of slavery within all americans”25 through the creation of memorials, museums, commemorations, and education and research grants related to slavery.26 walterhouse recognized that such steps should come after an apology is made by a joint resolution of congress and signed by the president.27 in summary, in the already robust and continuously growing scholarship on slavery redress, apology is an important part of racial reconciliation. most scholars seem to agree that apology alone cannot heal the horrific harms. some believe that atonement can only be achieved with both apology and reparations. some want an apology plus monetary compensation and nonrepetition methods. others seek apology with a thorough study of past injustice. others advocate for apology and the specific united states of america's sanction of slavery and segregation: a property law and equitable remedy analysis of african american reparations, 43 how. l.j. 171 (2000); vincene verdun, if the shoe fits, wear it: an analysis of reparations to african americans, 67 tul. l. rev. 597 (1993). 17 brooks, atonement, supra note 16, at 144. 18 id. at ix (professor brooks explains what “atonement” means: when a government commits an atrocity against an innocent people, it has, at the very least, a moral obligation to apologize and to make that apology believable by doing something tangible called a “reparation.” the government of the united states committed atrocities against black americans for two and one-quarter centuries in the form of chattel slavery and for an additional one hundred years in the form of jim crow—what supreme court justices ruth bader ginsburg and stephen breyer refer to as “a law-enforced racial caste system”—and it has not even tendered an apology for either. the u.s. government should, in fact, atone—that is, both apologize and provide reparations—for racial slavery and apartheid. saying “i'm sorry” just isn't enough.) 19 brophy, supra note 14, at 11. 20 id. 21 id. 22 see burkett, supra note 12. 23 id. at 99. 24 id. at 100. 25 carlton walterhouse, total recall: restoring the public memory of enslaved african-americans and the american system of slavery through rectificatory justice and reparations, 14 j. gender race & just. 703, 745 (2011) (concluding what must be done to address the harms to african-americans). 26 see id. at 739-40 (explaining the two-steps approach to redress). 27 see id. at 740 (discussing how commemoration would reshape america’s collective memories of slavery beyond the museum space). 2014 columbia journal of race and law 103 construction of sites and activities dedicated to educating the public about slavery. in other words, meaningful apologies for historic wrongs require apology-plus. b. congress’s apologetic statements after facing years of pressure on slavery redress, both chambers of congress separately issued apology statements. on july 29, 2008, the house of representatives passed house resolution 194 to apologize for slavery and jim crow.28 the house resolution contains seventeen “whereas” clauses which detail the horrors of slavery from 1619 through 1865, when africans were “captured and sold at auction like inanimate objects or animals,” and “brutalized, humiliated, dehumanized” under the legal slavery system.29 though 246 years of legal slavery ended,30 racial segregation laws and the jim crow system continued until the 1960’s.31 the vestiges of slavery, however, “still linger” today. two “whereas” clauses mention that president george w. bush “acknowledged slavery’s continuing legacy in american life and the need to confront that legacy”32 and president bill clinton “acknowledged the deep-seated problems” caused by the continuing legacy of racism that began with slavery and “initiated a national dialogue about race.”33 the house resolution recognized that it is important for the united states to “make a formal apology for slavery” so the country can move forward and seek “reconciliation, justice, and harmony for all of its citizens.”34 the house, through its resolution, admitted that a stand-alone apology cannot heal the past and is only the first step towards reconciliation.35 the apology itself states: 28 see h. r. res. 194, 110th cong. (2008). 29 id. at para. 1-4 the relevant “whereas” clauses state: whereas millions of africans and their descendants were enslaved in the united states and the 13 american colonies from 1619 through 1865; whereas slavery in america resembled no other form of involuntary servitude known in history, as africans were captured and sold at auction like inanimate objects or animals; whereas africans forced into slavery were brutalized, humiliated, dehumanized, and subjected to the indignity of being stripped of their names and heritage; whereas enslaved families were torn apart after having been sold separately from one another. 30 id. at para. 6 (“whereas slavery was not officially abolished until the passage of the 13th amendment to the united states constitution in 1865 after the end of the civil war.”). 31 id. at para. 7-8 (“whereas after emancipation from 246 years of slavery, african-americans soon saw the fleeting political, social, and economic gains they made during reconstruction eviscerated by virulent racism, lynchings, disenfranchisement, black codes, and racial segregation laws that imposed a rigid system of officially sanctioned racial segregation in virtually all areas of life. whereas the system of de jure racial segregation known as “jim crow,” which arose in certain parts of the nation following the civil war to create separate and unequal societies for whites and african-americans, was a direct result of the racism against persons of african descent engendered by slavery.”). 32 id. at para 12 (“whereas on july 8, 2003, during a trip to goree island, senegal, a former slave port, president george w. bush acknowledged slavery’s continuing legacy in american life and the need to confront that legacy when he stated that slavery “was . . . one of the greatest crimes of history . . . the racial bigotry fed by slavery did not end with slavery or with segregation. and many of the issues that still trouble america have roots in the bitter experience of other times. but however long the journey, our destiny is set: liberty and justice for all.”). 33 id. 34 supra note 28, at para. 17 (“whereas it is important for this country, which legally recognized slavery through its constitution and its laws, to make a formal apology for slavery and for its successor, jim crow, so that it can move forward and seek reconciliation, justice, and harmony for all of its citizens”). 35 id. (the resolution also understands the limit of a stand-alone resolution that: whereas a genuine apology is an important and necessary first step in the process of racial reconciliation; whereas an apology for centuries of brutal dehumanization and injustices cannot erase the past, but confession of the china’s apologetic justice: lessons for the united states vol. 4:2 104 resolved, that the house of representatives— (1) acknowledges that slavery is incompatible with the basic founding principles recognized in the declaration of independence that all men are created equal; (2) acknowledges the fundamental injustice, cruelty, brutality, and inhumanity of slavery and jim crow; (3) apologizes to african americans on behalf of the people of the united states for the wrongs committed against them and their ancestors who suffered under slavery and jim crow; and (4) expresses its commitment to rectify the lingering consequences of the misdeeds committed against african americans under slavery and jim crow and to stop the occurrence of human rights violations in the future.36 many national media outlets viewed the house resolution as “historic” or “unprecedented,”37 because it was the first-ever, official apology for slavery and segregation.38 the house resolution, however, did not mention reparations, but expressed the house’s commitment to rectify the lingering consequences of slavery and jim crow.39 what the house will do is yet to be seen. a year later, the senate issued its own apology on june 18, 2009.40 the apology contained eighteen “whereas” clauses in the preamble, describing the evils of slavery, the legal and systematic enslavement of african-americans, the legacy of segregation under jim crow, and the continual suffering from the “consequences of” the formerly abolished slavery and jim crow.41 the “whereas” provisions end with an acknowledgment that “it is important” for the people of the united states to “make a formal apology” for slavery and jim crow so “they can move forward and seek reconciliation, justice, and harmony for all people of the united states.”42 there are some differences between the “whereas” provisions in the house resolution and the senate resolution. for example, the language in the house resolution is quite strong in recognizing the discrimination african-americans still suffer, as shown in the relevant paragraph below: wrongs committed can speed racial healing and reconciliation and help americans confront the ghosts of their past.” ) 36 id. 37 see house issues formal apology for slavery, cbsnews (june 18, 2009), http://www.cbsnews.com /stories/2008/07/29/national/main4305876.shtml (where national media was uniform in praising the house resolution on slavery); house apologizes for jim crow and slavery, associated press (july 29, 2008), http://www.msnbc.msn.com /id/25921453/ns/politics-capitol_hill/t/house-apologizes-slavery-jim-crow/; see july 29, 2008: u.s. representative alcee l. hastings reacts to house apology for slavery and segregation, congressman alcee hastings (july 29, 2008), http://www.alceehastings.house.gov/index.php?option=com_content&task=view&id=197 (where african-american law makers endorsed the resolution.) 38 u.s. lawmakers apologize for slavery, jim crow, npr (july 30, 2008), http://www.npr.org /templates/story/story.php?storyid=93064166&ps=rs; lynne varner, editorial, it's never too late to apologize, seattle times (aug. 13, 2008), http://seattletimes.nwsource.com/html/opinion /2008109119_lynne13.html (noting that the house’s apology is “all part of a longer narrative”). 39 house apologizes for jim crow and slavery, supra note 37. 40 s. con. res. 26, 111th cong. (2009). the latest major action on the joint resolution was that it had been referred to the house committee on the judiciary on june 18, 2009. see bill summary & status – 111th congress (2009 – 2010) s.con.res.26, library of cong., http://hdl.loc.gov/loc.uscongress/legislation.111sconres26 (last visited aug. 10, 2012). 41 id. 42 id. 2014 columbia journal of race and law 105 whereas african-americans continue to suffer from the complex interplay between slavery and jim crow—long after both systems were formally abolished—through enormous damage and loss, both tangible and intangible, including the loss of human dignity, the frustration of careers and professional lives, and the long-term loss of income and opportunity;43 (emphasis added). the senate resolution’s “whereas” clause is similar to the above house resolution’s “whereas” clause, but omits the italic portion: whereas african-americans continue to suffer from the consequences of slavery and jim crow laws—long after both systems were formally abolished—through enormous damage and loss, both tangible and intangible, including the loss of human dignity;44 most importantly, the senate resolution’s apology section does not “express its commitment to rectify the lingering consequences of the misdeeds committed against african americans under slavery and jim crow.”45 the senate’s apology, instead, states that it expresses “its recommitment to the principle that all people are created equal and endowed with inalienable rights to life, liberty, and the pursuit of happiness.”46 also, the senate does not adopt the house’s language “to stop the occurrence of human rights violations in the future.”47 it only “calls on all people of the united states to work toward eliminating racial prejudices, injustices and discrimination from our society.”48 the notoriously glaring difference between the senate’s apology and the house’s apology is the disclaimer provision that appears at the end of the senate’s apology. the disclaimer states that “[n]othing in this resolution” “authorizes or supports any claims against the united states” or “serves as a settlement of any claim against the united states.”49 the inclusion of the disclaimer is a political reality to win votes for senators who are afraid that african-americans would use the apology for reparations claims.50 like the house resolution, the senate resolution is non-binding and merely symbolic.51 some circles have praised the senate’s apology.52 others have expressed mixed reactions towards the inclusion 43 see h. r. res. 194, 110th cong. (2008). 44 s. con. res. 26, 111th cong. (1st sess. 2009). 45 h. r. res. 194 para. 4. 46 s. res. 26 para. 1.c. 47 h. r. res. 194 para. 4. 48 s. res. 26 para. 1.c. 49 id. at para. 2. 50 compare david welna, senate apologizes for slavery, npr (june 19, 2009), http://www.npr.org/templates/story/ story.php?storyid=105620620 (reporting that “kansas republican sam brownback, who co-sponsored the measure, says that disclaimer was necessary to win the support of senators who feared the apology could be used by africanamericans seeking reparations.”), with bernie becker, senate approves slavery apology, with reparations disclaimer, n.y. times blog (june 18, 2009, 4:33 pm), http://thecaucus.blogs.nytimes.com/2009/06/18/senate-approves-slaveryapology-with-reparations-disclaimer/ (reporting that “senator roland burris, democrat of illinois and the senate’s only black member, said that the ‘disclaimer in no way would eliminate future actions that may be brought before this body that may deal with reparations.’”). 51 senate apologizes for slavery, segregation, associated press (june 18, 2009), http://www.msnbc.msn.com/id/ 31430118/ns/politics-capitol_hill/t/senate-apologizes-slavery-segregation/ (noting that the senate has passed similar nonbinding and symbolic resolution in the past, particularly the internment of japanese-americans during world war ii). 52 terence samuel, senate apologizes for slavery, the root (june 18, 2009), http://www.theroot.com/views/senateapologizes-slavery (“better way, way, way late than never.”). obama praises 'historic' senate slavery apology, agence china’s apologetic justice: lessons for the united states vol. 4:2 106 of the disclaimer in the senate’s apology.53 some critics went further and condemned it for its lack of sincerity54 or lack of substance.55 moreover, comparing what congress has done in addressing the slavery legacy to what some scholars have proposed, the glaring difference is the absence of apology-plus. the apology statements are not accompanied by any programs like monetary payments, a comprehensive study of slavery’s legacy, non-repetition methods, or commemorative constructions and activities. iii. china and public apologies in intellectual property cases a. china’s intellectual property law congress may be astounded to discover that china now has strong intellectual property law and enforcement.56 on the enforcement front, chinese individuals and companies are rather litigious in enforcing their intellectual property rights.57 recently, the multi-national company, apple, inc., encountered a surprisingly painful consequence of the wrath of enforcement exerted by a chinese trademark owner against apple for trademark infringement.58 china has a complex body of laws protecting and enforcing rights related to names and trademarks. specifically, there are three different statutes—trademark law, anti-unfair competition, and civil law—to protect registered trademarks and service marks, trade dress—the overall packaging france-presse (june 18, 2009), http://www.google.com/hostednews/afp/article/aleqm5iymehvk7wyjys7iayehszik11yqg. 53 welna, supra note 50 (reporting on the reaction to the inclusion of the disclaimer in the senate’s apology from black members of congress). see also senate apology for slavery gets mixed reaction, npr (june 24, 2009) http://www.npr.org/templates/story/story.php?storyid=105850676 (documenting the mixed feelings people have about the senate’s apology for slavery); wenger, supra note 13, at 224 (suggesting that “the senate and house should make their recent apology for slavery more sincere by setting aside juneteenth as a national holiday.”). 54 eugene kane, editorial, senate apology on slavery lacks sincerity, journal sentinel (june 20, 2009), http:// www.jsonline.com/news/milwaukee/48636877.html (criticizing that unlike the house's action, “the senate's apology includes a provision that specifically states it can't be used to support any claims for reparations by descendants of american slaves. in other words, this apology basically says: ‘i'm sorry, but don't hold me accountable.’”). 55 katrina browne, commentary: slavery needs more than an apology, cnn (aug. 19, 2009), http://articles.cnn.com/2009-08-19/politics/browne.slavery_1_slave-trade-dewolfs-apology?_s=pm:politics; kaimipono david wenger, apology lite: truths, doubts, and reconciliations in the senate’s guarded apology for slavery, 42 conn. l. rev. contemplations 1 (2009) (analyzing the senate’s apology for slavery); u.s. congress apologizes for slavery, daily voice (june 26, 2009), http://www.minorityreporter.net/fullstory.php?id=240 (“the failure to permit reparations is all the more stunning considering the resolution specifically admits that descendants of african american slaves "saw the fleeting political, social, and economic gains they made during reconstruction eviscerated by virulent racism, lynchings, disenfranchisement, black codes, and racial segregation laws that imposed a rigid system of officially sanctioned racial segregation in virtually all areas of life."). 56 kevin kwang, china sees rising intellectual property tussles, zdnet (mar. 13, 2011), http://www.zdnetasia.com/china-sees-rising-intellectual-property-tussles-62304161.htm (reporting that “66,000 iprelated cases went to litigation in 2011, up 37.7 percent over 2010” in china). in china, the rise in intellectual property litigation is seen as a positive sign for the building of national brands and a strong indication of the fast growth of china’s knowledge-based economy. id. 57 see generally xuan-thao nguyen, the china we hardly know: revealing the new china’s intellectual property law regime, 55 st. louis l.j. 773, 789-98 (2011) (providing quantitative data on china’s intellectual property litigation and comparing it to the united states’ declining intellectual property litigation in the same years). 58 see generally liau yun qing, reports: ipads taken off shelves in china over trademark dispute, zdnet, (feb. 14, 2012), http://www.zdnetasia.com/reports-ipads-taken-off-shelves-in-china-over-trademark-dispute-62303847.htm (rep orting on the confiscation of ipads from apple inc.’s authorized distributors after a lower court held that apple’s use of the name “ipads” infringed upon proview technology’s ipads trademark); ryan buddenhagen, apple still navigating chinese ipad litigation, int’l bus. times (mar. 2, 2012), http://www.ibtimes.co.uk/articles/307791/20120302/seosearch-engine-optimization.htm (reporting that the trademark infringement case has reached the appeals court in guangdong and that lawyers for both parties are currently engaging in settlement discussions). 2014 columbia journal of race and law 107 or look and feel of a product or service—and unregistered names.59 when an infringer violates the rights protected under the statutes with use of the trademark, trade dress, or name without authorization that is likely to mislead the consumer, the infringer will face civil liability.60 the civil liability includes injunction against the defendant.61 the defendant must promptly cease the infringing conduct.62 in addition, if the plaintiff can demonstrate that she suffered economic harm from the defendant’s infringing activities, the plaintiff is entitled to damages.63 alternatively, the plaintiff 59 see generally xuan-thao nguyen, trademark reputation apologetic justice, 15 u. penn j. bus. l. 131 (2012) (analyzing china’s three bodies of law). 60 see generally zhonghua ren min gong he guo min fa tong ze (中华人民共和国民法通则) [general principles of the civil law of the people’s republic of china] (promulgated by the standing comm. nat’l people’s cong., apr. 12, 1986, effective jan. 1, 1987) http://www.wipo.int/wipolex/en/text.jsp?file_id=182629, translated in http://www.wipo.int/wipolex/en/text.jsp?file_id=182628 [hereinafter china’s civil law]. the methods of “bearing civil liability” are described in article 134 of china’s civil law. id. at art. 134: article 134 the main methods of bearing civil liability shall be: (1) cessation of infringements; (2) removal of obstacles; (3) elimination of dangers; (4) return of property; (5) restoration of original condition; (6) repair, reworking or replacement; (7) compensation for losses; (8) payment of breach of contract damages; (9) elimination of ill effects and rehabilitation of reputation; and (10) extension of apology. the above methods of bearing civil liability may be applied exclusively or concurrently. when hearing civil cases, a people's court, in addition to applying the above stipulations, may serve admonitions, order the offender to sign a pledge of repentance, and confiscate the property used in carrying out illegal activities and the illegal income obtained therefrom. 61 china supreme people’s court has dictated that “[w]hen hearing cases of infringement upon the exclusive right to use registered trademarks, the people’s court may, pursuant to article 134 of the general principles of civil law, article 53 of the trademark law and the specific circumstances of the cases, rule to order the infringer to bear such civil liabilities as to cease and desist the infringement, eliminate interference, compensate for losses and eliminate adverse effects. it may also order such civil sanctions as fines, confiscation of the infringing goods, counterfeit trademark representations and materials, tools and equipment used specifically to produce infringing goods. the amount of fines may be determined by reference to the implementing rules of the trademark law of the people’s republic of china.” [interpretation by the supreme people’s court relating to application of law in adjudication of cases of trademark civil disputes] (promulgated by the adjudication comm. of the sup. people’s ct., oct. 12, 2002, effective oct. 12, 2002) http://www.lindaliugroup.com/web/01/en_laws_read.asp?id=1365 htm [hereinafter trademark law interpretation]. 62 id. 63 zhonghua ren min gong he guo shang biao fa (中华人民共和国商标法) [trademark law of the people’s republic of china] (promulgated by the standing comm. nat’l people’s cong., aug 23, 1982, effective mar. 1, 1983) http://www.wipo.int/wipolex/en/text.jsp?file_id=181402, translated in http://www.wipo.int/wipolex/en/text.jsp?file_id=131395 [hereinafter china’s trademark law]. id. at art. 56 provides in relevant part: the amount of compensation for the damage caused by the infringement of the exclusive right to use a trademark shall be assessed on the basis of the profits which the infringer has earned through the infringement, or the losses which the infringee has suffered, which shall include the reasonable expenses for stopping such infringement paid by the infringee. china supreme people’s court instructs how damages must be calculated in trademark-related cases, as provided in trademark law interpretation, supra note 61, at art. 14: china’s apologetic justice: lessons for the united states vol. 4:2 108 can select damages in the form of the defendant’s profits gained from unauthorized use of the trademark, trade dress or name.64 if the court cannot quantify the damages, the law provides statutory damages.65 most importantly, if the defendant’s infringement maliciously or intentionally misleads the public as to the source of goods or services, chinese courts have the power under the statutes to order the defendant to make a public apology.66 courts will instruct the defendant to use the public apology to eliminate any ill effects stemming from the defendant’s conduct.67 in some cases, courts will approve the content of the apology before the defendant publishes it in a newspaper or trade journal. courts often dictate in what journal or newspaper the defendant will publish the apology.68 in the event that the defendant fails to publish the apology, courts will direct the plaintiff to prepare and publish the public apology in the defendant’s name.69 the defendant must then pay the plaintiff for the cost associated with the making and publishing of the apology.70 likewise, with respect to copyrights, there is a body of laws comprising copyright law and civil law related to copyrighted works and enforcement against copyright infringements. under the copyright law,71 works of authorship qualified for copyright protection include written, oral, musical, the losses caused by the infringement as provided for in paragraph 1 of article 56 of the trademark law may be calculated by multiplying the amount of sale reduction of the goods suffered by the claimant as a result of the infringement or the amount of sale of the infringing goods by the unit profit of the goods bearing the registered trademark. the amount of gains obtained as a result of infringement as provided for in paragraph 1 of article 56 of the trademark law may be calculated by multiplying the quantity of sales of the infringing goods by the unit profit of such goods sold; if the unit profit of such goods cannot be ascertained, the calculation shall be based on the unit profit of the goods bearing the registered trademark. 64 china supreme people’s court instructs that the plaintiff has the right to select how damages should be calculated, as provided in trademark law interpretation, supra note 61, at art. 13 (“when the people’s court ascertains the amount of compensation to be paid by the infringing party pursuant to paragraph 1 of article 56 of the trademark law, it may calculate the amount of compensation on the basis of the calculating formula selected by the claimant.”). 65 china’s trademark law, supra note 63, at art. 56 (“if it is difficult to determine the profits which the infringer has earned through infringement or the losses which the infringee has suffered as referred in the preceding paragraph, the people's court shall make a sentence of compensation under the amount of 500,000 yuan rmb in accordance with the seriousness of infringing acts.”). 66 china’s civil law, supra note 60, at art. 118 (if the exclusive right to use a trademark is infringed, the trademark registrant has the right to demand that “the infringement be stopped, its ill effects be eliminated and the damages be compensated”). see china’s civil law, supra note 60, at art. 118. likewise, when a legal person’s “right of name, reputation or honor” is infringed, the person has the right to “demand that the infringement be stopped,” the individual’s or business entity’s “reputation be rehabilitated,” and the “ill effects be eliminated” under article 120 of china’s civil law. see china’s civil law, supra note 60, at art. 120. see also china’s civil law, supra note 60, at art. 134 (listing “elimination of ill effects and rehabilitation of reputation” and “apology” among the methods of civil liability). 67 see fangfang ceramics manufactory v. hengsheng ceramics and bldg. materials manufactory (higher people’s ct. of fujian province dec. 30, 1998) (china) (ordering an injunction against the defendant under art. 118 of china’s civil and instructing the defendant to pay for damages and publish an apology in a newspaper). 68 see generally tianjin (higher people’s ct. of heilongjian province dec. 28, 1994) (china) (mandating that the defendant must submit the content of the public apology to the court for approval prior to publication). 69 china pharm. univ. v. furui tech. co., ltd. (higher people’s ct. of jiangsu province jan. 31, 2005) (china) (admonishing the defendants of the consequences if they fail to timely publish their public apology). 70 see id. see also xuan-thao nguyen, apologies as intellectual property remedies: lessons from china, 44 conn. l. rev. 883, 916 (2012). 71 zhonghua ren min gong he guo zhuzuo quan fa (中华人民共和国著作权法) [copyright law of the people’s republic of china] (promulgated by the standing comm. nat’l people’s cong., sept. 7, 1990, effective june 1, 1991, 2014 columbia journal of race and law 109 choreographic, art, architecture, photographic, cinematographic, graphic, computer software, and other works as provided for in the laws and regulations.72 the term “copyright” under chinese law differs from the u.s. definition.73 the chinese “copyright” term covers both property rights and personality rights, the latter being similar to moral rights under u.s. law.74 chinese copyright’s personality right provides authors and owners of a copyright with the right of publication,75 authorship,76 alteration,77 and integrity.78 under chinese copyright’s property right, authors and owners of copyrights enjoy the right of reproduction,79 distribution,80 rental,81 exhibition,82 performance,83 showing,84 broadcast,85 communication of information on networks,86 producing amended feb. 26, 2010, effective apr. 1, 2010) http://www.wipo.int/wipolex/en/text.jsp?file_id=182065, translated in http://www.wipo.int/wipolex/en/text.jsp?file_id=186569 [hereinafter china’s copyright law]. 72 id. at art. 3. 73 under u.s. copyright law, the term “copyright” means a bundle of exclusive rights granted to the authors. the exclusive rights are listed in 17 u.s.c. § 106 (2012): (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 74 china’s copyright law, supra note 71, at art. 10; zhiwen liang, between freedom of commerce and protection of moral rights: the chinese experience and a comparative analysis, 57 j. copyright soc’y u.s.a. 107, 114-15 (2010) (tracing the history of moral right in chinese copyright law). u.s. copyright law, on the other hand, does not protect moral rights or the “personality” of the author. instead, u.s. copyright law provides protection to works of visual art such as paintings, drawings, prints, and sculptures. the author of such work has the right to claim authorship, to prevent the use of the author’s name on works that the author did not create, and to prevent the use of the author’s name on works that have been modified or distorted. for visual art works made after 1991, the right will subsist for the life of the author. see 17 u.s.c. § 106a (2002). 75 china’s copyright law, supra note 71, at art. 10 (l) (right of publication is the right to decide whether to make a work available to the public). 76 id. at art. 10(2) (right of authorship is the right to claim authorship and to have the author's name mentioned in connection with the work). 77 id. at art. 10(3) (right of alteration is the right to alter or authorize others to alter one's work). 78 id. at art. 10(4) the right of integrity, that is, the right to protect one's work against distortion and mutilation. 79 id. at art. 10(5) the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work or by any other means. 80 id. at art. 10(6) the right of distribution, that is, the right to make available to the public the original or reproductions of a work though sale or other transfer of ownership. 81 china’s copyright law, supra note 71, at art. 10(7) the right of rental, that is, the right to authorize, with payment, others to temporarily use cinematographic works, works created by virtue of an analogous method of film production, and computer software, except any computer software that is not the main subject matter of rental. 82 id. at art. 10(8) the right of exhibition, that is, the right to publicly display the original or reproduction of a work of fine art and photography. 83 id. at art. 10(9) the right of performance, that is, the right to publicly perform a work and publicly broadcast the performance of a work by various means. 84 id. at art. 10(10) the right of showing, that is, the right to show to the public a work, of fine art, photography, cinematography and any work created by analogous methods of film production through film projectors, over-head china’s apologetic justice: lessons for the united states vol. 4:2 110 cinematographic work,87 adaptation,88 translation,89 compilation90 and any other rights a copyright owner is entitled to enjoy.91 in addition, the copyright owner may assign or license others to use the enumerated property rights and receive remuneration for the exchange.92 china’s copyright law also contains provisions relating to works made for hire.93 the duration of copyright protection for an individual author is the life of the author plus fifty years.94 for a work made projectors or any other technical devices. 85 id. at art. 10(11) the right of broadcast, that is, the right to publicly broadcast or communicate to the public a work by wireless means, to communicate to the public a broadcast work by wire or relay means, and to communicate to the public a broadcast work by a loudspeaker or by any other analogous tool used to transmit symbols, sounds or pictures. 86 id. at art. 10(12) the right of communication of information on networks, that is, the right to communicate to the public a work, by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them. 87 china’s copyright law, supra note 71, at art. 10(13) the right of making cinematographic work, that is, the right to fixate a work on a carrier by way of film production or by virtue of an analogous method of film production. 88 id. at art. 10(14) the right of adaptation, that is, the right to change a work to create a new work of originality. 89 id. at art. 10(15) the right of translation, that is, the right to translate a work in one language into one in another language. 90 id. at art. 10(16) the right of compilation, that is, the right to compile works or parts of works into a new work by reason of the selection or arrangement. 91 id. at art. 10(17). 92 id. at art. 10 (“a copyright owner may authorize another person to exercise the rights under the preceding paragraphs (5) to (17), and receive remuneration pursuant to an agreement or this law. a copyright owner may assign, in part or in whole, the rights under the preceding paragraphs (5) to (17), and receive remuneration pursuant to an agreement or this law.”). 93 china’s copyright law, supra note 71, at art. 16: a work created by a citizen in the fulfillment of tasks assigned to him by a legal entity or other organization shall be deemed to be a work created in the course of employment. the copyright in such work shall be enjoyed by the author, subject to the provisions of the second paragraph of this article, provided that the legal entity or other organization shall have a priority right to exploit the work within the scope of its professional activities. during the two years after the completion of the work, the author shall not, without the consent of the legal entity or other organization, authorize a third party to exploit the work in the same way as the legal entity or other organization does. in any of the following cases the author of a work created in the course of employment shall enjoy the right of authorship, while the legal entity or other organization shall enjoy the other rights included in the copyright and may reward the author: (1) drawings of engineering designs and product designs and maps, computer software and other works created in the course of employment mainly with the material and technical resource of the legal entity or other organization and under its responsibility; (2) works created in the course of employment where the copyright is, in accordance with laws, administrative regulations or contracts, enjoyed by the legal entity or other organization. 94 id. at art. 21. the term of protection for the right of publication and the rights referred to in article l0, paragraphs (5) to (17), of this law in respect of a work of a citizen shall be the lifetime of the author and fifty years after his death, and expires on 31 december of the fiftieth year after the death of the author. in the case of a work of joint authorship, such term shall expire on 31 december of the fiftieth year after the death of the last surviving author. the term of protection for the right of publication and the rights provided for in article 10, paragraphs (5) to (17), of this law in respect of a work where the copyright belongs to a legal entity or other organization or in respect of a work created in the course of employment where the legal entity or other organization enjoys the copyright (except the 2014 columbia journal of race and law 111 for hire, the duration is fifty years.95 the “personality” or moral rights, such as rights of authorship, alteration and the integrity of an individual author are “unlimited in time.”96 with respect to civil liability, if an infringer violates any of the acts protected under chinese copyright law,97 the infringer will face injunctions and damages.98 in addition, depending on the circumstances, the infringer might be required to make a public apology.99 china’s general principles of the civil law of the people’s republic of china (“civil law”) provides several provisions addressing the protection of copyrights and civil liability in copyright infringement.100 specifically, article 94 provides that authors and copyright owners “shall be entitled to right of authorship), shall be fifty years, and expires on 31 december of the fiftieth year after the first publication of such work, provided that any such work that has not been published within fifty years after the completion of its creation shall no longer be protected under this law. the term of protection for the right of publication or protection for the right of publication or the rights referred to in article l0, paragraphs (5) to (17), of this law in respect of a cinematographic work, a work created by virtue of an analogous method of film production or a photographic work shall be fifty years, and expires on 3l december of the fiftieth year after the first publication of such work, provided that any such work that has not been published within fifty years after the completion of its creation shall no longer be protected under this law. 95 id. at art. 21. 96 compare id. at art. 20 with 17 u.s.c. §106a (u.s. copyright law for the limited “moral” rights afforded authors of works of visual art against unauthorized use of the author’s name on works not created by the author or modifications and distortions of visual art works only during the life of the author). 97 china’s copyright law, supra note 71, at art. 46 lists acts of infringement. anyone who commits any of the following acts of infringement: (1) publishing a work without the permission of the copyright owner; (2) publishing a work of joint authorship as a work created solely by oneself, without the permission of the other co-authors; (3) having one's name mentioned in connection with a work created by another, in order to seek personal fame and gain, where one has not taken part in the creation of the work; (4) distorting or mutilating a work created by another; (5) plagiarizing a work of another person; (6) exploiting by exhibition, film production or any analogous method of film production, or by adaptation, translation, annotation, or by other means, without the permission of the copyright owner, unless otherwise provided in this law; (7) exploiting a work created by another person without paying remuneration as prescribed by regulations; (8) rending a work, sound recording or video recording, without the permission of the copyright owner of a cinematographic work, a work created by virtue of an analogous method of film production, computer software, sound recording or video recording or the owner of a copyright-related right unless otherwise provided in this law; (9) exploiting the typographic arrangement of a book or periodical without the permission of the publisher; (10) broadcasting live a performance or communicating the live performance to the public, or recording his performance without the permission of the performer; or (11) committing any other act of infringement of copyright and of other rights and interests relating to copyright. 98 id. at art. 46 states that the infringer “shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology or paying compensation for damages, depending on the circumstances.” see also id. at art. 47. statutory damages will not exceed “500,00” yuan depending on the circumstances of the infringing act. id. at art. 48. 99 see id. at arts. 46 and 47. 100 china’s civil law is a comprehensive body of law which was formulated “in accordance with the china’s apologetic justice: lessons for the united states vol. 4:2 112 sign their names as authors, issue and publish their works and obtain remuneration.”101 articles 118102 and 134 provide remedies in infringement cases where copyrights are violated. the remedies, under article 134, include injunctions, damages, elimination of “the ill effects,” as well as an “apology” from the wrongdoer.103 in addition, china’s anti-unfair competition law is broad enough in scope to prevent conduct deemed to be unfair competition. for example, article 2 of china’s anti-unfair competition statue dictates that business individuals and companies “abide by the principle of voluntariness, equality, impartiality, honesty and good faith, and also adhere to public commercial morals in their business transactions.”104 the definition of “unfair competition” means business activities that “damage” others’ “legal rights and interests, disturb the order of social economy and violation provisions” of the antiunfair competition statute.105 in addition, in article 5 of the anti-unfair competition law, the law prohibits the use of “name, package, decoration” of a well-known commodity to “confuse consumers.”106 article 5 also prohibits the use of registered trademarks belonging to others.107 violators of the anti-unfair competition law bear liabilities listed in articles 20-29 of china’s anti-unfair competition law108 and article 134 of china’s civil law statute.109 injunction, damages and apology to eliminate ill effects are among the remedies the violators must owe to the injured party. in summary, chinese laws on trademarks and copyrights are a strong protection system against statutory wrongs committed by infringers. in trademark cases, where the infringer intentionally or maliciously misleads the public as to the trademark’s source or affiliation and harms both the plaintiff and the public, a public apology is ordered. in copyright cases, when injury occurs to the “personality rights,” courts order a public apology. in these types of cases, public apology110 is supplemental to injunction and damages.111 constitution and the actual situation in our country, drawing upon our practical experience in civil activities for the purpose of protecting the lawful civil rights and interests of citizens and legal persons and correctly adjusting civil relations, so as to meet the needs of the developing socialist modernization” and the civil law is the foundation to “adjust property relationships and personal relationships between … citizens, … legal persons, … citizens and legal persons” china’s civil law, supra note 60, at arts. 1-2. 101 id. at art. 94. 102 id. at art. 118 (“if the rights of authorship (copyrights) … of citizens or legal persons are infringed upon by such means as plagiarism, alteration or imitation, they shall have the right to demand that the infringement be stopped, its ill effects be eliminated and the damages be compensated for.”) 103 id. at art. 134. 104 zhonghua ren min gong he guo fan bu zhengdang jingzheng fa (中华人民共和国反不正当竞争法) [law of the people’s republic of china against unfair competition] (promulgated by the standing comm. nat’l people’s cong., sept. 2, 1993, effective dec. 1, 1993) http://www.wipo.int/wipolex/en/text.jsp?file_id=181337, translated in http://www.wipo.int/wipolex/en/text.jsp?file_id=125970 [hereinafter china’s anti-unfair competition law]. id. at art. 2. 105 id. 106 china’s civil law, supra note 60, at art. 5. see generally zuigao ren min fayuan guanyu shenli bu zhengdang jingzheng min shi anjian yingyong falu ruogan wenti de jieshi (最高人民法院关于审理不正当竞争民事案件应用法律若干问题的解释) [interpretation of the supreme people’s court on some matters about the application of law in the trial of civil cases involving unfair competition] (promulgated by the sup. people’s ct., dec. 30, 2006, effective feb. 1, 2007) http://www.wipo.int/wipolex/en/text.jsp?file_id=182408 (china), translated in http://www.wipo.int/clea/docs_new/pdf/en/cn/cn104en.pdf (providing interpretations of art. 5 of china’s anti-unfair competition law). 107 china’s anti-unfair competition law, supra note 104, at art. 5. 108 id. at arts. 20-29. 109 china’s civil law, supra note 60, at art. 20, 134. 110 see peter k. yu, from pirates to partners (episode ii): protecting intellectual property in post-wto china, 55 am. u. l. rev. 901, 952 (2006) (noting that arts. 37 and 46 of china’s copyright law provide the remedy of public apology). 111 see anne m. wall, intellectual property in china: enforcing trademark rights, 17 marq. sports l. rev. 341, 362 2014 columbia journal of race and law 113 b. the chinese court’s decisions in intellectual property cases the prevalent view outside china is that there is a lack of recourse through the chinese judicial system with respect to intellectual property infringement in china. a review of written and published decisions from the chinese people’s courts challenges this uninformed view. the decisions below illustrate the context of intellectual property infringement conduct and demonstrate how courts apply the laws to restore justice. specifically, courts instruct the defendants to apologize to the plaintiffs for intentional or willful intellectual property infringement. the apology is in addition to damages and injunctive relief. 1. zhang liny ing and other three persons v . guangyuan co. ltd . , chinese revo lu t ionary museum and gongmei corp . group the plaintiffs are heirs of the artist dong xiwen who in 1953 painted the oil painting, “the founding ceremony of new china” (hereinafter “the painting”).112 through inheritance law, the plaintiffs are the owners to the copyright for the painting. the plaintiffs brought a copyright infringement action against the chinese revolutionary museum and its business partners, alleging that the defendants made copies of the painting without the plaintiffs’ authorization. specifically, in 1999, the museum and its business partner, guangyuan, entered into an agreement to reproduce 11,000 copies of the painting in three different sizes. shortly thereafter, the museum and guangyuan agreed to make even more copies of the painting: “500 copies of the masterwork edition, 1,000 copies of the collection edition and 1,000 copies of the commemorative edition.”113 guangyuan distributed the copies of the painting with a statement indicating that the “chinese revolutionary museum transfers the copyright of the oil painting ‘the founding ceremony of china’ to shanghai guangyuan artworks co. ltd, to manufacture gold foil paintings.”114 the intermediate people’s court of beijing found that in 1953 the artist dong xiwen completed the painting and affixed his signature onto the canvas.115 the painting was subsequently preserved in the chinese revolutionary museum. the court noted that the artist died in 1973, leaving behind his wife and three children. the court applied the 1990 version of china’s copyright law, and held that the plaintiffs, dong xiwen’s wife and children, are the rightful heirs to the copyright for the painting.116 therefore the plaintiffs are the copyright owners of the painting and have “the right to use and the right to remuneration” with respect to the painting under copyright law.117 the court found that the museum had only the right to exhibit the painting even though the museum had possession of the original copy of the painting.118 under chinese copyright law, ownership of the original copy of the painting did not vest the museum with the copyright in the painting. without copyright ownership, the museum had no right to make copies or authorize others to make copies and distribute them. the court noted that although the museum was fully aware of copyright ownership belonging to the artist’s heirs, the museum unlawfully provided the film of the painting to guangyuan to make mass copies for distribution.119 consequently, the museum and (2006) (recognizing that modern chinese copyright law includes apologies as remedies). 112 zhang linying v. guangyuan co. (higher people’s ct. of beijing dec. 16, 2002). 113 id. 114 id. 115 id. (the lower court, the interm. people’s ct. of beijing, rendered its decision on june 19, 2002). 116 id. 117 id. 118 linying, supra note 112. 119 id. china’s apologetic justice: lessons for the united states vol. 4:2 114 guangyuan violated the plaintiffs’ copyright to the painting and therefore were subject to liability. the court ordered the defendants to stop their infringing activities and forbade them from using the painting in any form without the plaintiffs’ permission.120 the defendants were ordered to pay the plaintiffs 260,000 yuan for economic losses suffered by the plaintiffs. in addition, the court instructed the defendants to publish an apology to the plaintiffs in the legal daily.121 the content of the apology was subject to the court’s approval. the court stated that, if the defendants failed to publish the apology, the court would publicize the judgment in the legal daily and charge the defendants for the associated cost.122 the defendants appealed the decision to the higher people’s court of beijing. the higher court rejected the defendants’ argument that the artist dong xiwen had completed the painting as part of his job-related work donated to the government.123 the defendants did not submit evidence to support their copyright ownership argument. the higher court affirmed the intermediate court’s judgment.124 2. golden human computer co. ltd v . hst sc i en t i f i c and techno log i ca l deve lopment center the plaintiff golden human computer co. brought a trademark infringement and unfair competition action against the defendant hst for the unauthorized use of the plaintiff’s trademark “gushen” on software products.125 the plaintiff filed its complaint with the haidian district people’s court in beijing.126 in late 1997, the plaintiff developed a special software for use in the stock market. the plaintiff marketed the software under the name “gushen” in numerous newspapers, including computer workers’ daily, china youth daily and other media. by the end of 1999, the gushen software was ranked first among software products sold in software stores in beijing. the plaintiff registered the copyright for the gushen software with the state copyright bureau and also obtained a trademark registration for the gushen trademark for “computer hardware” classification in april 1999. in addition, in december 1999, the plaintiff received a software product certificate for its gushen software products in the beijing municipality, issued by a government software agency. subsequently, in april 2000, the plaintiff applied to expand the scope of its “gushen” trademark registration to cover the “computer software” classification.127 the defendant, hst, a software development company, began to market and sell its software products under the name “gushen2000” in early 2000.128 gushen2000 software was for use in the stock market. the defendant marketed the gushen2000 software in various newspapers and on the internet.129 the haidian court found that under china’s trademark law, trademark infringement is 120 id. 121 id. 122 id. 123 id. 124 linying, supra note 112. 125 golden human computer co. v. hst scientific and technological dev. ctr. (beijing first interm. people’s ct. sept. 27, 2000). 126 id. 127 id. 128 id. 129 id. 2014 columbia journal of race and law 115 committed when unauthorized use of a trademark occurs on either identical or similar goods.130 therefore, the plaintiff’s exclusive right to use the gushen trademark was not limited to computer hardware; the right was extended to similar goods as well. the plaintiff was the only entity with the exclusive right to use the gushen trademark on computer hardware and software. although the plaintiff originally registered the trademark gushen only for computer hardware, the haidian court explained that computer hardware and software are “closely related to computer operation and they belong to a big category in the commodity classification table.”131 consequently, use of the same trademark on both computer hardware and software would lead the consumer to believe that the products came from the same source. accordingly, in the stock market “consumers would be easy to mistake” the defendant’s gushen2000 software products with the plaintiff’s gushen software products.132 without the plaintiff’s permission, the defendant’s use of the gushen trademark infringed the plaintiff’s exclusive right.133 the haidian court also applied china’s unfair competition law which provided that unfair competition occurs when a person or entity is “using for a commodity without authorization a unique name, package or decoration similar to that of another’s famous commodity, thereby confusing the commodity with that famous commodity and leading the purchasers to mistake the former for the latter.”134 here, the plaintiff’s gushen trademark was not a general name for software. the plaintiff had extensively advertised the gushen name to build and increase goodwill and recognition for the name. the gushen software achieved “certain prestige” in the software stock market, and therefore enjoyed being “a kind of famous commodity.”135 the plaintiff, therefore, had the exclusive right to the name gushen, and thereafter the right to add a new year to the name for new versions of the software. the defendant, without permission, used the name gushen and added the new year for a new generation of software when it sold gushen2000 in the year 2000. such use, the haidian court concluded, violated china’s unfair competition law and the defendant must bear civil liability.136 on june 28, 2000, the haidian court ordered the defendant to stop using the name gushen in any form on packages of its software products.137 the haidian court also directed the defendant to pay compensatory damages to the plaintiff. in addition, the defendant was ordered to publish a public apology to the plaintiff in a computer trade publication and on the defendant’s homepage at its website.138 the defendant appealed the haidian court’s decision to the intermediate people’s court.139 at the appellate level, the parties reached a settlement. specifically, after a reconciliation presided over by the intermediate people’s court, the defendant agreed to stop using the name “gushen” on its software packages. the defendant agreed to pay for damages and make an apology to the plaintiff. as of september 27, 2000, the defendant had already complied with the haidian court’s judgment by making a public apology to the plaintiff.140 130 id. (the lower court, the haidian dist. people’s ct. of beijing, rendered its decision on june 28, 2000). 131 golden human computer co., supra note 125. 132 id. 133 id. 134 id. 135 id. 136 id. 137 golden human computer co., supra note 125. 138 id. 139 id. 140 id. china’s apologetic justice: lessons for the united states vol. 4:2 116 3. starbucks corporat ion and shanghai pres iden t cof f e e corpora t ion v . shanghai starbucks café company limit ed and shanghai starbucks café company limit ed , nanj ing road branch starbucks corporation is a well-known company for its coffee retail business in the united states and worldwide.141 in january 1999, starbucks opened its first chain store in beijing. starbucks advertised its trademark, products and services in various sources in china. by december 2003, starbucks had 49 stores through its franchising program in major cities in china. on march 2, 2000, starbucks established a chinese-foreign co-operative enterprise for coffee, teahouse, refreshments, ice creams, and catering in china after it received an approval from the chinese administrative authority for industry and commerce. starbucks is the owner of many “starbucks” trademarks for coffee products and services. starbucks entered into a trademark license agreement with its chinese affiliate to use the various starbucks trademarks in connection with the development and operation of starbucks stores in china. starbucks and its chinese affiliate (“plaintiffs”) brought a trademark infringement and unfair competition suit against shanghai starbucks café company limited and shanghai starbucks café company limited, nanjing road branch (“defendants”). the defendants operated a business enterprise for drinks and western-style food in shanghai under the trade name “starbucks” (in chinese). specifically, the defendants received pre-approval for its retail enterprise name on october 20, 1999, and then established its store on march 9, 2000. three years later, on july 1, 2003, the defendants established a branch store on nanjing road. the defendants used the name “starbucks” on boxes, coffee menus, seat separation boards, invoices, payment slips, and name cards in their coffee business at both the xianxia store and nanjing road branch. the shanghai intermediate court held that the plaintiffs’ “starbucks” trademark is a well-known trademark under chinese trademark law upon evaluating the following factors: (1) how well the trademark is known by the relevant public; (2) the duration of use of the trademark; (3) the extent and geographic scope of advertisements using the trademark; (4) the record of protection of the trademark as a well-known trademark; and (5) other various factors for which the trademark is well-known.142 the evidence supported the fact that the starbucks trademark is well-known under chinese trademark law. the shanghai intermediate court then proceeded on the issue of trademark infringement and unfair competition committed by the defendants. the court noted that the plaintiffs obtained their trademark registration for the starbucks trademark on december 28, 1999. that meant the plaintiffs acquired the exclusive right to use the trademark on that date. the defendants, on the other hand, received pre-approval for their enterprise name on october 20, 1999, and established their store on march 9, 2000. applying the relevant provisions of the chinese “implementation measures for the registration administration of enterprise names,” the court stated that an enterprise may enjoy the right of name as of the date of establishment. therefore, the plaintiffs acquired “the right to the trademark ‘starbucks’… earlier than the defendants’ right to their enterprise names.”143 moreover, on the defendants’ “subjective malice of taking advantage of” the plaintiffs’ wellknown trademark by registering the trademark as their own enterprise name, the court noted that due to the wide international prestige and good reputation of starbucks’ trademarks, the starbucks name 141 starbucks corp. v. shanghai starbucks café co. (shanghai higher people’s ct. dec. 20, 2006). 142 id. (the lower court, the shanghai interm. people’s ct., rendered its decision on dec. 31, 2005). 143 id. 2014 columbia journal of race and law 117 became “prestigious in the mainland of china rapidly.”144 the court found that the defendants took advantage of the plaintiffs’ prestigious trademark, as seen in mr. mao’s – general manager of the defendants’ shanghai starbucks stores – interview conducted by the jiefang daily newspaper. mr. mao touted to the reporter that “us starbucks corporation established more than 4,000 stores, and he liked the brand ‘starbucks,’ so he rush-registered ‘starbucks.’”145 even though the defendants later recanted what they said in the interview and substituted a new story for why they selected the name “starbucks,” the court found their new story to be “very far-fetched.”146 the court concluded that the defendants’ registration of starbucks as their enterprise name “had the obvious malice of taking advantage of” the plaintiffs’ trademark, “had caused the public to misidentify or misunderstand” the trademark registrant and the enterprise name owner, and “constituted unfair competition.”147 applying both the trademark law and anti-unfair competition law, the court ordered the defendants to cease the infringement and unfair competition activities of using the plaintiffs’ trademark and make a payment of 500,000 yuan to the plaintiffs for their economic losses.148 with respect to eliminating negative influences and making an apology, the court ordered the defendants to “publish an announcement on xinmin evening news (the contents shall be subject to the court’s verification) to make an apology” to the plaintiffs.149 the defendants subsequently appealed to shanghai higher people’s court. the higher court rejected the defendants’ appeal and affirmed the intermediate court’s judgment. the higher court’s decision was final.150 4. zhang chengzhi v . 21 vianet communica t ions techno logy co. , ltd . the plaintiff zhang chengzhi, author of two novels, black gallant horse and north river, asserted copyright infringement against the defendant, 21 vianet, for storing and disseminating electronic copies of the novels online without the plaintiff’s permission.151 the plaintiff brought the infringement action in the haidian district people’s court in beijing. the defendant argued that it did not violate copyright law because the novels were uploaded by third-party users who had posted them on the defendant’s website. the defendant claimed that it functioned merely as a network provider and hence could not control the content posted by others. further, the defendant asserted that the plaintiff’s two novels were also available for downloading at other internet websites.152 the haidian court rejected the defendant’s arguments on several grounds.153 first, the court noted that the defendant had control over the content uploaded on their website because the defendant had a special team dedicated to digitize and store content for their novels column at the website.154 second, the court noted that copyright liability can be extended to cover the online dissemination of 144 id. 145 id. 146 id. 147 starbucks, supra note 141. 148 id. 149 id. 150 id. (the shanghai higher people’s ct.’s decision was rendered on dec. 20, 2006 and both the shanghai interm. people’s ct. and the higher people’s ct.’s decisions were published together in one document). 151 zhang chengzhi v. 21 vianet commc’n tech. co. (beijing first interm. people’s ct. dec. 17, 1999). 152 id. 153 id. (the lower court, the haidian dist. people’s ct. of beijing, rendered its decision on sept. 18, 1999). 154 id. china’s apologetic justice: lessons for the united states vol. 4:2 118 copyrighted works without permission from the copyright owner.155 under copyright law, only the copyright owner has “the right of publication, the right of authorship, the right of revision, the right to protect the integrity of his work, the right to use and the right to remuneration.”156 moreover, the court stated that the right to use and the right to remuneration means the right to make use of his work by way of reproduction, performance, broadcasting, exhibition, distribution, producing motion pictures, television and other audio-visual works, or through adaptation, translation, annotation, compilation, or other ways, as well as the right to authorize others to make use of his work in the above-mentioned ways and to receive remuneration for such use.157 though the copyright statute does not specifically mention distribution of content online, the court found that online distribution is “essentially a way to make the content of the work known by the public.”158 accordingly, the defendant’s online dissemination and distribution of the plaintiff’s novels without the plaintiff’s permission violated the copyright law. the defendant infringed on the plaintiff’s right to use his copyrighted works and his right to remuneration.159 the haidian court issued its judgment against the defendant and ordered the defendant to cease uploading the two novels and pay the plaintiff 13,080 yuan for economic losses.160 the court instructed the defendant to make a public apology to the plaintiff by publishing a declaration on the defendant’s website homepage. the content of the public apology must be approved by the court. if the defendant failed to issue an apology within ten days of the judgment, the court would “draft an announcement by itself and publish it on the electronic version of a newspaper distributed throughout china, and relevant expenses should be borne” by the defendant.161 the defendant appealed the case to the intermediate people’s court in beijing, asserting that the existing copyright law does not extend liability to network content providers.162 the intermediate court rejected the defendant’s argument and reemphasized that copyright law protects the copyright owner by providing the owner with exclusive rights.163 the intermediate court instructed that as a network content provider, the defendant has “the obligation to know whether the contents it provides on its website to the public would infringe upon other’s copyrights.”164 the intermediate court affirmed the haidian court’s judgment on injunction, damages and public apology.165 155 id. 156 id. 157 zhang chengzhi, supra note 151. 158 id. 159 id. 160 id. 161 id. 162 zhang chengzhi, supra note 151. 163 id. 164 id. 165 see founder co., red mansion inst. v. gaoshu tianli co. (no. 1 interm. people’s ct. of beijing municipality dec. 20, 2001), rev’d, (higher people’s ct. of beijing municipality july 15, 2002, rev’d, (sup. people’s ct.) (reinstating the damages awarded by the interm. court and affirming the public apology order); ding xiaochun v. nantong educ. bureau (interm. people’s ct. of nantong city dec. 19, 2002) (ordering the defendant to cease the unauthorized publication of the plaintiff’s photographs, to compensate the plaintiff for economic loss, and to make a public apology in the nantong daily). 2014 columbia journal of race and law 119 5. bei j ing baidu netcom sc i ence and techno logy co. , ltd . v . ts ing tao osun network technique co. , ltd . , e t . a l . baidu is the largest internet search engine site in china. in 2009, it processed visits and query searches from ten million net users per day. baidu brought an unfair competition law suit against osun and others for using technical means to insert defendants’ advertising pages and cause them to pop-up before baidu’s normal display of search results. the defendants’ pop-up advertisements appeared whenever a user logged on to baidu’s search engine site to make a key word search. baidu brought the law suit in the intermediate people’s court of qingdao city. on september 2, 2009, the intermediate court found that the defendants’ pop-up advertisement activities “made use of the search service provided by baidu … for their own benefits without the consent of baidu.”166 also, the defendants’ conduct was “against the will” of the internet users and caused the users to “mistake the pop-up advertising pages for something placed by baidu.”167 consequently, the users may “downgrade their satisfaction” with baidu’s services and may have “a negative impact” on baidu’s goodwill.168 the intermediate court held that the defendants violated china’s anti-unfair competition statute. the defendants were ordered to cease their activities, pay damages and remove ill effects. specifically, the intermediate court stated that since the defendants’ “acts occurred on the internet, . . . the two defendants should publish statements on the homepages of their websites . . . to eliminate ill effects.”169 the court instructed that the apology statements must be subject to the court’s review and be posted at the defendants’ homepages for fifteen consecutive days.170 the defendants had ten days to comply with the court’s order. the defendants appealed to the higher people’s court of shandong which affirmed the intermediate people’s court of qingdao city on march 20, 2010.171 in summary, the above cases illustrate that in intellectual property cases involving either unauthorized use of rights related to the author under copyright law or names or trademarks to intentionally mislead the consumer, the defendant must cease the infringing conduct, pay damages, and issue an apology. the court retains its authority to review the content of the apology. the apology must be publicly made. as seen in the cases, the apologies were to be published in legal daily, a computer trade publication, and the infringer’s website homepage, so all could read it. moreover, the court orders emphasize that if the defendants fail to timely publish their apologies, the court would draft an announcement, publicize the judgment through the relevant media, and instruct the defendants to pay the associated expenses. iv. apology context, content, and purpose analyzing china’s statutes relating to intellectual property and civil remedies and the written decisions rendered by chinese people’s courts provide a comprehensive understanding of how china attempts to right harms done to intangible and personality rights, specifically how public apologies indeed can serve as part of correcting wrongs. it is instructive to examine actual public apologies for context, content and purpose. 166 beijing baidu netcom sci. and tech. co. v. tsingtao osun network technique co. (interm. people’s ct. of qingdao city sept. 2, 2009) (china). 167 id. 168 id. 169 id. 170 id. 171 beijing baidu netcom sci. and tech. co. v. tsingtao osun network technique co. (higher people’s ct. of shandong mar. 20, 2010) (china), aff’d (interm. people’s ct. of qingdao city sept. 2, 2009). china’s apologetic justice: lessons for the united states vol. 4:2 120 consider the following public apology statement made by china peking opera theater to mr. ma shaobo on august 23, 2000, after the court held that the opera infringed on mr. ma’s copyrights in three plays.172 the apology was published in the “chinese theater” publication in september 2000. it is also available online for the public to view. mr. ma shaobo, one of the founders of our theater, while working in the leading position in the past years, devoted much time and effort in organizing the rehearsal of many high-quality plays, and participating in the writing of several plays including: “peroxide blonde” (bai mao nu), “inexperienced” (chu chu mao lu) and “whole red river” (man jiang hong). when we were compiling and printing the commemorative album to celebrate the 40th anniversary, we didn’t put his signature on three plays, our conduct severely infringes his copyright. we have sincerely accepted the judgment of beijing no.1 intermediate people’s court and the final judgment of beijing supreme court on august 15, 2000, and are determined to correct our mistakes. first, the documents, files, and the certifying materials based on these documents that are related to mr. ma shaobo, we released in the past political movements shall all become invalid. second, we will put his signature in the memorial album on those three plays. third, we hereby state our apologies to mr. ma shaobo, and guarantee that we will earnestly respect the writer’s copyright in the future performances and publication. consider the next apology statement in a trademark infringement case where the defendants, the gang tian motorcycles and related companies used the “yamaha” trademark without authorization. the tianjin supreme people’s court rendered judgment against the defendants. pursuant to the court’s order, the defendants made the following public apology in the motorcycle publication in april 2003. the apology is also available online.173 while reporting the 2009 and 2010 “national catalog of manufacturers and products for automobile, civil refitted car and motorcycle”, we used “linhai-yamaha” as the engines’ trademark, on the types of gt125t, gt125t-a, gt125t-b and gt505t-a gang tian motorcycles, which has been determined as infringement on the trademark of yamaha motor co., ltd in the above-mentioned judgment.174 172 wei wo yuan qin fan ma shao bo tong zhi zhu zuo quan shi xiang ma shao bo tong zhi dao qian, [apology statement about copyright infringement from the chinese peking opera theater to mr. ma shaobo], chinese theater (september 2000), available at http://ezlibrary.sufe.edu.cn:2067/kns50/detail.aspx?dbname =cjfd2000&filename=xiju200009006 [hereinafter peking opera apology]. 173 apology statement, supra note 172 (the chinese and english versions of the apology are on file with the author. a few years later, yamaha brought another trademark infringement case against a different group of defendants and prevailed. the chinese supreme people’s court in beijing ordered an injunction and awarded the largest damages in a trademark infringement case, for its time, in the amount of $8.3 million yuan, and also instructed the defendant to make a public apology.); see olivia chung, a trademark milestone for yamaha in china, asia times online (june 29, 2007), http://www.atimes.com/atimes/china_business/if29cb02.html.; see also on the judgment on trademark infringement case passed by the supreme court of the people’s republic of china – upholding the 2005 decision of the jiangsu higher people’s court, yamaha motor (june 12, 2007), http://www.yamaha-motor.co.jp/global/news/2007/06/12/trademark.html (noting that the public apology must be published in “ ”[motuoche shangqing] magazine). 174 “the above-mentioned judgment” refers to “according to the gao zhi chu zi (2001) no. 3 paper of civil 2014 columbia journal of race and law 121 our subordinate enterprises including: tianjin gang tian motorcycle co., ltd. / tianjin gang tian engine co., ltd. / tianjin gang tian motorcycle sales co., ltd. and tianjin gang tian automobile sales co., ltd., used “linhai-yamaha” as the engine’s trademark on the above-mentioned types of motorcycles in their production and sales, which has also been determined as infringement on the trademark of yamaha motor co., ltd in the above-mentioned paper of judgment. the 37 gangttian gt126-6 type motorcycles, produced by our subordinate enterprise tianjin gang tian engine co., ltd., used the logo “vision”. this behavior has also been determined as infringement on the trademark of yamaha motor co., ltd in the above-mentioned paper of judgment. the gt50t-a type gang tian motorcycles, also produced by our subordinate enterprise tianjin gang tian engine co., ltd., were attached with the mark “engine licensed by yamaha” at the front and rear. this expression has also been determined as infringement on the trademark of yamaha motor co., ltd in the above-mentioned paper of judgment. we hereby apologize to yamaha motor co., ltd for these trademark infringements. and we have already modified the contents related to the “linhai-yamaha” engines in “national catalog of manufacturers and products for automobile, civil refitted car and motorcycle”. furthermore, we guarantee that we will not have those or similar infringing acts in the future. the next set of apologies is from individuals and companies who infringed the registered trademark “deli” owned by the deli group ltd. the defendants used the plaintiff’s “deli” trademark on stationery products. the apologies were published together in the wuyi today newspaper on april 8, 2011.175 statement of apology (i) a series of “deli” trademarks which are registered by deli group ltd. have a high recognition in the market. we (wuyi county ming-cheng printing and packing ltd.) infringed the exclusive right of “deli” trademark by using the trademark on the stationery products manufactured by us and thus damage the reputation of “deli” trademark. we hereby make the following statement of apology: 1. we contribute sincere apology to deli group ltd. for the losses caused by our production and selling infringing products and we are willing to compensate losses caused thereby. 2. we promise not to use any registered trademark owned by deli group ltd. in the future, or we will be liable to any related infringements. judgment from tianjin supreme court.” see tianjin gang tian ji tuan jiu yu ya ma ha fa dong ji zhu shi hui she shang biao qin quan jiu fen an jian de dao qian sheng ming [the apology statement for trademark infringement from tianjin gang tian group to yamaha motor co., ltd.], motor cycle 59 (apr. 2003), http://ezlibrary.sufe.edu.cn:2067/kns50/detail.aspx?dbname=cjfd2003&filename=mtci200304047 [hereinafter gang tian apology]. 175 deli trademark apologies (the apologies in chinese are on file with author). china’s apologetic justice: lessons for the united states vol. 4:2 122 apologizer: wuyi county ming-cheng printing and packing ltd. statement of apology (ii) a series of “deli” trademarks which are registered by deli group ltd. have a high recognition in the market. i infringed the exclusive right of “deli” trademark by using the trademark on the stationery products manufactured by us and thus damage the reputation of “deli” trademark. i hereby make the following statement of apology: 1. i contribute sincere apology to deli group ltd. for the losses caused by my production and selling infringing products and we are willing to compensate losses caused thereby. 2. i promise not to use any registered trademark owned by deli group ltd. in the future, or i will be liable to any related infringements. apologizer: he wei-lan statement of apology (iii) a series of “deli” trademarks which are registered by deli group ltd. have a high recognition in the market. i infringed the exclusive right of “deli” trademark by using the trademark on the stationery products manufactured by us and thus damage the reputation of “deli” trademark. i hereby make the following statement of apology: 1. i contribute sincere apology to deli group ltd. for the losses caused by my production and selling infringing products and we are willing to compensate losses caused thereby. 2. i promise not to use any registered trademark owned by deli group ltd. in the future, or i will be liable to any related infringements. apologizer: wuyi county tai-ji stationery factory lan xian-chang statement of apology (iv) a series of “deli” trademarks which are registered by deli group ltd. have a high recognition in the market. i infringed the exclusive right of “deli” trademark by using the trademark on the stationery products manufactured by us and thus damage the reputation of “deli” trademark. i hereby make the following statement of apology: 1. i contribute sincere apology to deli group ltd. for the losses caused by my production and selling infringing products and we are willing to compensate losses caused thereby. 2. i promise not to use any registered trademark owned by deli group ltd. in the future, or i will be liable to any related infringements. 2014 columbia journal of race and law 123 apologizer: wuyi county kai-wei stationery factory he dong-xian statement of apology (v) a series of “deli” trademarks which are registered by deli group ltd. have a high recognition in the market. i infringed the exclusive right of “deli” trademark by using the trademark on the stationery products manufactured by us and thus damage the reputation of “deli” trademark. i hereby make the following statement of apology: 1. i contribute sincere apology to deli group ltd. for the losses caused by my production and selling infringing products and we are willing to compensate losses caused thereby. 2. i promise not to use any registered trademark owned by deli group ltd. in the future, or i will be liable to any related infringements. apologizer: xu zhi-xiang the illustrative sample apologies above share several distinctive characteristics that make them effective, as discussed below. a. in newspapers or trade publications all of the above apologies above are public and accessible. the wrongdoers announced their apologies to the plaintiffs in a public forum. most significantly, the announcements were not oral.176 it is in writing and published in a newspaper or trade publication. that means the public can read it at the time of publication and in the future. further, in the age of digital media, the newspapers and trade publications are now available online. the public can gain access to online content and read the apologies.177 the widely available publication of the apologies serves an important role in the dissemination of the apology content in informing and educating the public. in other words, the publication of the apology, whether in a newspaper or trade publication, indicates that chinese laws 176 in the united states, as discussed by scholars, apologies seem to be mostly oral. see erin o'hara o'connor, organizational apologies: bp as a case study, 64 vand. l. rev. 1959, 1969 (2011) (“people also tend to scrutinize apologies for more subtle indicators of sincerity.…nonverbal cues are also scrutinized, including eye contact, breathing, body posture, facial complexion, facial expressions, tone of voice, and pace of speech.”); jennifer k. robbennolt, apologies and reasonableness: some implications of psychology for torts, 59 depaul l. rev. 489, 496 (2010) (“factors such as tone of voice, non-verbal gestures, or facial expressions moderate the effects of apologies.”). 177 in the united states, a few reported court rulings involve apologies posted on youtube and facebook. for example, a court in florida ordered teens to post their apology on youtube. see keyonna summers, judge orders teens to post apology on youtube, usa today (june 8, 2008), http://www.usatoday.com/tech/webguide/internetlife/2008-06-08-youtube_ n.htm (court ordered the teens “to post another video on youtube: an apology that shows them face down and handcuffed on the hood of a car. the judge, prosecutor and defense attorneys who devised this punishment hope it will serve as a deterrent.”). another court ordered a divorcing man to post an apology on his facebook. see lisa cornwell, judge orders man to apologize on facebook, associated press (feb. 24, 2012), available at http://www.huffingtonpost.com/2012/03/20/mark-byron-ordered-to-pos_n_1366691.html (judge ordered that the defendant in a domestic abuse case post an apology statement on his facebook page for thirty days so all of his friends on facebook could read it after the defendant had earlier posted numerous comments that were "clearly intended to be mentally abusive, harassing and annoying" to his wife and to "generate a negative and venomous response toward her from his facebook friends"). see also kimball perry, ex-husband gets choice of jail or a facebook apology, usa today (feb. 23, 2012), http://www.usatoday.com/news/nation/story/2012-02-23/facebook-apology-divorce-jail/53221786/1. china’s apologetic justice: lessons for the united states vol. 4:2 124 acknowledge the harms done not only to the plaintiff, but also to society. societal harmony is important. the defendant’s public and widely disseminated apology addresses the harm and restores societal harmony.178 b. recognition of the injured person’s rights in both public apologies, the wrongdoers acknowledged that the plaintiffs have the exclusive rights in the copyrights, trademarks, or names. such acknowledgments are significant for the defendant to make an admission of infringing on the plaintiffs’ rights.179 this affirmative step frames the context of the apology and shows that the apology is sincere.180 for example, in the peking opera apology, the opera recognized mr. ma shaobo as “one of the founders of our theater” who had “devoted much time and efforts in organizing the rehearsal of many high-quality plays, and participating the writing of” the three plays in question.181 in the deli trademark apologies, the individual and company wrongdoers recognized that deli group ltd is the owner of a number of the “deli” registered trademarks and the trademarks enjoy “high recognition in the market place.”182 c. admission of wrongs the wrongdoers in the sample apologies described and admitted to what they did and that their conduct was injurious to the plaintiff’s exclusive rights in copyright or names. for example, in the china peking opera’s apology to mr. ma shaobo, the opera knew that mr. ma was the author of the three plays and they ignored his copyright by publishing commemorative albums containing the plays without his authorship. in other words, they brazenly stole his works of authorship and stripped his identity from the plays.183 the opera admitted that they “severely infringed” on mr. ma’s copyright in the plays.184 similarly, in the deli trademark apologies, the wrongdoers admitted that they “infringed the exclusive right” of the plaintiff’s “deli” trademarks by using the marks on their stationery products “and thus damage[d] the reputation of ‘deli’ trademark.”185 likewise, in the gang tian apology, the wrongdoers described and admitted their wrongs in the first three paragraphs. as many scholars have observed, 178 in the united states, the restorative effects of apology have been noted by many scholars. see generally jennifer gerarda brown & liana g.t. wolf, the paradox and promise of restorative attorney discipline, 12 nev. l.j. 253, 294-95 (2012) (surveying apologies and effectiveness in restorative justice model); daniel w. shuman, the role of apology in tort law, 83 judicature 180, 189 (2000) (asserting the restorative effects of apology); jonathan todres, toward healing and restoration for all: reframing medical malpractice reform, 39 conn. l. rev. 667, 710-12 (2006) (discussing how apologies can have a significant role in the restorative model in reforming medical malpractice). in addition, scholars have also recognized the reparative effects of apology in recent years. see generally o'connor, supra note 176, at 1964-70 (noting the value of sincere apology and its reparative effects on individuals). 179 this is part of self-criticism, an important element of whether an apology is sincere. see jeffrey s. helmreich, does “sorry” incriminate? evidence, harm and the protection of apology, 21 cornell j.l. & pub. pol’y 567, 602 (2012) (“selfcriticism may be necessary for apologies to come across as sincere and so to be of some benefit to the victims.”). 180 some scholars have advanced that a sincere apology requires “a remorseful acceptance of responsibility for one’s wrongful and harmful actions, the repudiation of the aspects of one’s character that generated the actions, the resolve to do one’s best to extirpate those aspects of one’s character, and the resolve to atone or made amends.” jeffries g. murphy, repentance, punishment, and mercy, in repentance: a comparative perspective 143, 147 (amitai etzioni & david e. carney eds., 1997); mark a. hall, can you trust a doctor you can’t sue? 54 depaul l. rev. 303, 309 (2005) (“[w]hat injured patients most desire are candid acknowledgements of medical errors, a sincere apology that conveys genuine remorse, and constructive steps toward corrective actions.”). 181 see peking opera apology, supra note 172. 182 see deli trademark apologies, supra note 175. 183 see peking opera apology, supra note 172. (“when we were compiling and printing the commemorative album to celebrate the 40th anniversary, we didn’t put his signature on three plays, which severely infringes his copyright.”). 184 id. 185 see deli trademark apologies, supra note 175. 2014 columbia journal of race and law 125 publicly admitting wrongs means that the wrongdoers have absolutely no excuse or justification for their conduct.186 d. cease the infringing conduct upon recognizing the injured person’s right and admitting to the wrong conduct, the wrongdoers must take active steps to cease engaging in the wrongful conduct. in the sample apologies, the wrongdoers followed the court’s order to stop the infringement. specifically, in the china peking opera’s apology, the opera listed the steps that it would take to be in compliance with the court’s order.187 the opera promised to place mr. ma’s name on the three plays as he is the author who created them. in the gang tian apology, the defendants stated that they had already modified all the contents and products after the court found that defendants’ catalogues and products infringed on the yamaha trademark.188 e. apologize and promise not to engage in future infringement typically, in the last paragraph of a public apology, as seen in the sample apologies above, the wrongdoers state that “we hereby apologize” to the injured party for the wrongful conduct committed by the wrongdoers.189 for example, in the deli trademark apologies, the wrongdoers apologized to the plaintiff “for the losses caused by” the infringing conduct.190 most importantly, the wrongdoers promise that they will not engage in future infringement of the plaintiff’s right. similarly, in the gang tian apology, the wrongdoers promised that “we guarantee that we will not have those or similar infringing acts in the future.”191 likewise, in the china peking opera apology, the wrongdoer stated “we . . . guarantee that we will earnestly respect the writer’s copyright in the future performance and publication.”192 also, in the deli trademark apologies, the wrongdoers “promise not to use any registered trademark owned by deli group ltd. in the future, or . . . will be liable to any related infringement.”193 f. apologies as part of remedies most importantly, apologies are part of remedies. the remedies include injunction, damages, and apologies in the intentional infringement of copyrights and trademarks.194 in summary, the tone in the apologies is remorseful and purposeful.195 the defendants in the 186 stephen p. garvey, punishment as atonement, 46 ucla l. rev. 1801, 1815 (1999) (noting apology represents “the wrongdoer’s public expression of his repentance, whereby he openly acknowledges his wrongdoing and simultaneously disowns it”); martha minow, between vengeance and forgiveness 114-15 (1998) (“to apologize is to declare voluntarily that one has no excuse, defense, justification, or explanation for an action.”). 187 see peking opera apology, supra note 172. (“first, the documents, files, and the certifying materials based on these documents that are related to mr. ma shaobo, we released in the past political movements shall all become invalid. second, we will put his signature in the memorial album on those three plays.”). 188 see gang tian apology, supra note 174. 189 id.; peking opera apology, supra note 172. 190 see deli trademark apologies, supra note 175. 191 see gang tian apology, supra note 174. 192 see peking opera apology, supra note 172. 193 see deli trademark apologies, supra note 175. 194 see generally nguyen, supra note 70. 195 scholars have suggested that when an apology is remorseful and purposeful, it has significant value in medical malpractice cases and criminal cases. see generally ashley a. davenport, forgive and forget: recognition of error and use of apology as preemptive steps to adr or litigation in medical malpractice cases, 6 pepp. disp. resol. l.j. 81, 101 (2006) (medical providers “must remember the fundamental purpose of the apology—to offer condolences and remorse for china’s apologetic justice: lessons for the united states vol. 4:2 126 examples above admitted that what they did was wrong; they did not have the right to use the plaintiff’s trademarks or copyrights; they infringed on the plaintiffs’ rights; and they were sorry and promised not to engage in such acts against the plaintiffs again. the public nature and the wide dissemination of apologies are meaningful and sincere as the defendants accept responsibility for their specific wrongful conduct.196 the apologies are forward-looking, as seen by the wrongdoers’ promises to not engage in similar conduct in the future. v. from china with meaningful apologies: in addition to damages and injunction chinese statutes, court decisions, and public apologies relating to violations of trademarks, names, and copyrights suggest some useful lessons for all to ponder. public apologies are available only when the violations are intentional and egregious.197 the apologies in chinese intellectual property infringement cases analyzed above are obviously valuable to the intellectual property owners who were injured by the wrongdoer’s conduct. the wide dissemination of public apologies in newspapers and trade publications has a positive impact on the society. society is involved since everyone can read each apology, its context and content. in other words, the apology is not merely between the wrongdoer and the victim; it is about restoring value and harmony to society.198 most importantly, the apology is meaningful because it is apology-plus. chinese courts in intellectual property cases order apologies in addition to the order for damages and injunctive relief. courts instruct the wrongdoers to cease the infringing activities and, in some cases, to destroy the infringing products. the injunctive relief is automatic upon the plaintiff having proved that the wrongdoer has infringed on the plaintiff’s rights.199 the automatic grant prevents further harm to the plaintiff. the injunction also prevents society from being misled by the wrongdoer’s conduct.200 the court also orders the wrongdoer to pay a pecuniary sum to the plaintiff. the payment is for compensating the plaintiff where the plaintiff can establish economic losses caused by the defendant’s the injury or loss and to absolve the injured party and their family from any residual guilt” in order to make a proper apology); stephanos bibas & richard a. bierschbach, integrating remorse and apology into criminal procedure, 114 yale l.j. 85, 145-47 (2004) (explaining the benefits of apology and remorse in criminal cases). 196 see o’connor, supra note 176, at 1968-69 (dissecting former u.s. senator bob packwood’s apology as insincere because he failed to identify a specific wrongful act, “failed to take ownership of any wrongful action, and his apology therefore seemed strategic.”). 197 see generally hebei sanhe fucheng cattle grp. co. v. kunming branch of harbin fucheng catering co. (higher people’s ct. of yunnan province apr. 5, 2007) (china) (trademark infringement and unfair competition); zhang linying (copyright infringement); liu jingsheng v. sohu aitexin info. tech. (beijing) co. (beijing interm. people’s ct. dec. 19, 2006) (china) (copyright infringement); founder co., red mansion inst. (copyright infringement). 198 opinions of china’s supreme people’s court on giving full play to the functional role of intellectual property trials in advancing the great development and prosperity of socialist culture and promoting independent and coordinated economic development (effective dec. 16, 2011) (calling on all courts in intellectual property cases to “attach great importance to the accuracy of the initial judgment during the first-instance trial, ensure parties involved obtain judicial fairness as soon as possible, increase the rate of judgment acceptance and lawsuit termination, and reduce the rate of appeal so as to promote social harmony and stability.”) (emphasis added). 199 see supra part ii.a. 200 see generally tracy thomas, switching to prophylactic injunctions, 90 tex. l. rev. 295, 303 (2012) (“all injunctive relief is aimed at preventing future harm.”). for a historical perspective and an account of recent circuit splits on preliminary injunction, see generally rachel a. weisshaar, hazy shades of winter: resolving the circuit split over preliminary injunctions, 65 vand. l. rev. 1011 (2012). 2014 columbia journal of race and law 127 infringing conduct.201 the various chinese intellectual property law and civil law statutes also allow courts to strip the wrongdoer of its gains from infringing activities.202 in other words, the payment made by the wrongdoer to the plaintiff helps steer the just recourse. both injunctive relief and damages payments are the plus in apology-plus. chinese courts only order apology in intellectual property bad faith cases. this means that in ordinary infringement cases, courts limit the remedies to injunction and damages.203 reserving apologies only for the more egregious cases, the court signals to everyone that an apology is issued carefully. this suggests that the apology is meaningful because it is not routinely used in all intellectual property cases. also, the apology is meaningful when it is not used in lieu of injunctive relief and damages. the apology is therefore accorded with significance and importance.204 vi. what congress can learn from china about meaningful apologies congress may choose to disregard how china provides remedies in intellectual property cases as irrelevant to u.s. slavery redress. that would be unfortunate. apologies in chinese intellectual property cases are effective and meaningful for several reasons. the wrongdoer acknowledged the injured person’s rights, admitted its wrongs, provided no excuse or justifications for its wrongs, accepted responsibilities and promised not to commit such wrongs in the future.205 china’s apologetic justice is rich in restorative effects. they are public and are widely disseminated to show the wrongdoer’s humility and to educate the public.206 moreover, china’s apologetic justice is apology-plus. it is rarely used and is 201 see supra part ii.a. 202 see china’s civil law, supra note 60; china’s anti-unfair competition law, supra note 104. 203 see generally tianjin goubuli grp. co. v. tianfengyuan rest. (higher people’s ct. of shandong province oct. 10, 2007) (china) (no apology issued); nanjing xuezhong ciaying co. v. shanghai xuezhong caiying co. (interm. people’s ct. of nanjing municipality may 30, 2005) (china) (no apology issued). 204 in china, apologies as remedies are not limited to trademark, unfair competition, and copyright cases. see zhonghua ren min gong he guo jishuanji ruanjian baohu tiaoli (中华人民共和国计算机软件保护条例) [regulations on computer software protection] (promulgated by the state council, dec. 20, 2001, effective jan. 1, 2002) http://www.wipo.int/wipolex/en/text.jsp?file_id=181231, translated in http://www.wipo.int/wipolex/en/text.jsp? file_id=131055 (providing apology in arts. 23-24 as part of the remedies for software infringement); opinions of the beijing high people’s court on several issues concerning the trial of cases involving computer software copyright disputes (effective june 21, 1995) (interpreting article 120 of the china’s general principles of the civil law that requires the software infringer to “make an apology and make a public notice in a newspaper for elimination of impact”); notice of the jiangsu high people’s court on guiding opinions of the henan high people’s court for the trial of cases involving disputes over infringement of trade secrets (effective mar. 2, 2005) (china) (stating that in addition to injunction, compensatory damages or statutory damages, the infringer must make “an apology” as part of “civil liabilities” that the infringer must bear). 205 olivera simic, bringing “justice” home? bosnians, war criminals and the interaction between the cosmopolitan and the local, 12 german l.j. 1388, 1405 (2011) (“without sincere apologies, and without genuine recognition of what happened, the past will continue to haunt the present and the cycle of vengeance will persist. meaningful reconciliation requires ‘justice as recognition,’ justice in terms of the public acknowledgement of injustices.”). 206 a more recent case involving an injunction, damages, and apology is baidu (higher people’s ct. of shandong province, mar. 20, 2010) (ordering in addition to injunction and damages, the defendants must publish an apology on their website for fifteen consecutive days and the content of the apology must first be approved by the court). in a different case involving the apple company and the trademark “ipads”, apple was sued by the chinese trademark owner who has registered and used the trademark “ipads” years before apple began its use of “ipads” in the united states and worldwide. the intermediate people’s court in shenzhen held that apple violated the plaintiff’s trademark right and ordered injunction, damages and apology against apple. while the case was on appeal, apple settled the trademark suit by paying $60 million dollars. see audrey wozniak, apple pays $60 million for ipad name in china, abc news (july 2, 2012), http://abcnews.go.com/blogs/business/2012/07/apple-pays-60-million-for-rights-to-ipad-namein-china/. china’s apologetic justice: lessons for the united states vol. 4:2 128 only used in addition to injunctive relief and monetary payments to the injured persons. the apologies therefore have substance as compared to congress’ empty apology—apology without the accompaniment of any pluses whether a study of past wrongs, construction of commemorative sites or monetary reparation. vii. conclusion congress may wish to argue that slavery redress is too complex. congress may defensively assert that it simply cannot address proposals calling for monetary reparation, studies of slavery injustice, construction of memorials and monuments, and programs to educate the public about slavery. certainly, it is easier to continue the tirade about china and intellectual property piracy to score some points in opinion polls. the problem remains. congress’ slavery apology statements ring hollow. ironically, congress may look to china’s remedies for intellectual property infringement for valuable lessons. china requires that the wrongdoer who intentionally harms or infringes the intellectual property rights of another make a public apology in a newspaper or trade journal, in addition to stopping the harm and paying for compensatory damages and cost. if the wrongdoer does not timely make the public apology, the infringed party will draft and publish the public apology in the wrongdoer’s name and charge the associated expenses to the wrongdoer. the public apology is in addition to, not in lieu of, injunctive relief and damages. if congress approaches apology resolutions to slavery in a way similar to what china has done for remedies in intentional intellectual property infringements, righting wrongs in intellectual property harms and slavery harms will have something in common. citizenship in name only eic edit 2013 columbia journal of race and law   103     citizenship in name only: the coloring of democracy while redefining rights, liberties and self determination for the 21st century e. earl parson* monique mclaughlin** in recent times there has been an explosion of interest in the concept of citizenship. this renewed theoretical focus was sparked by voter id statutes and jury obstruction. defining the term “full citizenship” as it relates to african americans has been a focus of controversy since the writing of the u.s. constitution. do african americans enjoy the status of full citizenship or is it in name only? this essay examines two fundamental areas of citizenship: voting rights and jury participation. this essay, through comparative analysis, will show deep rooted voting suppression tactics and present jury obstruction methods that impact african americans and their full citizenship rights. the jury system is one of the most important institutions of government. the right and duty to sit on a jury is granted to all adult citizens. racial bias denies the defendant the right to a fair and impartial jury, and it denies citizens the fundamental right to participate fully in the judicial system. african americans have been disproportionally excluded through pretextual peremptory challenges. moreover, lawmakers have embarked on a new voter suppression tactic: voter identification requirements. the tactic involves imposing new laws and rules requiring voters to show identification in order to vote, despite virtually no evidence of voter misidentification fraud. identification requirements pose a special burden to the poor, racial minorities, and senior citizens who often do not have specific forms of identification. the pretextual color-blind race neutrality argument made by state legislators rings hollow when this nation’s history of voting obstruction is considered. i. introduction………………………………………………………….. 104 ii. citizenship in name only: redefining democracy…… 105                                                                                                                           *   e. earl parson is a former faculty member at the university of wisconsin school of law and former professor of legal studies at the university of the virgin islands. b.a., university of oklahoma, j.d., howard university, and candidate, llm, university of wisconsin school of law. professor parson’s area of concentration is the sociology of law and its pedagogical impact on the african american experience. **  monique mclaughlin, assistant professor of law, albany law school, b.a., boston university, j.d., university of san francisco school of law. professor mclaughlin’s area of concentration is voting rights, jury reform and criminal procedure.   104 citizenship in name only vol. 3:1   iii. jury participation: the systematic exclusion………….. 106 iv. the new landscape in voting rights suppression: redefining voter id laws and its challenges…………… 110 v. the new vision of citizenship: self determination for the 21st century………………………………………………… 117 i. introduction [the african] . . . was regarded and owned in every state in the union as proper ty merely, and as such was not and could not be a party or an actor, much less a peer in any compact or form of government established by the states or the united states. . . . [s]o far as rights and immunities appertaining to citizens have been defined and secured by the constitution and laws of the united states, the african race is not and never was recognized either by the language or purposes of the former . . . .1 justice daniel, concurring opinion dred sco t t v . sandford currently, there is an explosion of interest in the concept of citizenship. this renewed theoretical focus was precipitated by political events, voter id statutes, jury obstruction and significant minority participation during the last presidential campaign. however, the definition of “full citizenship” as it relates to people of color, particularly african americans, has been a focus of controversy since the enactment of the u.s. constitution, which did not recognize african americans as “citizens.” do african americans enjoy full citizenship status or is it in name only? more importantly, is their full citizenship status based on some legal invitation, or common assumptions and opinions of the majority? this essay will address the question, how do we advance racial justice while addressing racial setbacks in a depressed economic environment? if america does not view african americans as full citizens, then efforts to exercise those citizenship rights become problematic. dr. martin luther king, jr. felt full citizenship encompassed two important concepts: 1) the right to vote, and 2) the right to be a full participant in the judicial process, such as the right to serve on a jury.2 only united states citizens can exercise these two privileges, privileges that are also a means to effectuate real change for african americans in politics, the economy and our society. throughout history, racial bias has affected the economic and political standing of african americans, particularly through denial of the right to vote and exclusion from the jury process. the united states supreme court has made it clear that the exclusion of people of color from the jury and voting polls is unconstitutional, and more importantly, undermines our judicial and political system.3                                                                                                                           1 scott v. sandford, 60 u.s. 393, 481–82 (1856) (daniel, j., concurring), superseded by u.s. const. amend. xiii, § 1. 2 martin luther king, jr., “i have a dream,” address at the march on washington for jobs and freedom (aug. 28, 1963), available at http://mlk-kpp01.stanford.edu/kingweb/publications/speeches/ address_at_march_on_washington.pdf. 3 strauder v. west virginia, 100 u.s. 303, 308–10 (1879), abrogated on other grounds, 419 u.s. 522 (1975); see u.s. const. amend. xv, § 1; u.s. const. amend. xiv, § 1. 2013 columbia journal of race and law   105     this essay analyzes from both a historical and modern day perspective how current race neutral voting laws, modern pretextual peremptory challenges, and exclusion tactics have and will continue to affect african americans and their communities in the twenty-first century. this comparative analysis will show how deeply rooted voting suppression tactics and jury obstruction methods are still prevalent in our society, and how, if not properly addressed and resolved, they will retard and hinder the african american community’s continued effort for full citizenship participation. this essay will address full citizenship from these two perspectives: the concept of voting and its impact on participation in the jury process. ii. citizenship in name only: redefining democracy as it relates to people of color, citizenship has historically been a tool for exclusion instead of inclusion. this issue of full citizenship participation has been a recurring issue for the united states supreme court for over 200 years, with the court repeatedly addressing the domestic discourse of citizenship and its legal interpretation. while the court, even to this day, continues to hear cases that affect citizenship rights, conservative law makers continue to pass laws that affect voting rights and judicial participation. these two fundamental concepts are the core of full citizenship rights. the involuntary arrival of africans to america may have resulted in the social and economic caste system that has been embedded in the minds of the majority, specifically the belief that the rights and privileges of some americans are in name only and that african americans are in america only by invitation. despite amendments to the constitution forbidding unequal treatment of its citizens, state legislators designed jim crow statutes, pretextual race neutral voting laws and arcane jury practices to circumvent the democratic process for african americans—unequal treatment that persists today. this redefinition of democracy took complete hold after the end of reconstruction. rights granted pursuant to the thirteenth, fourteenth, and fifteenth amendments were largely ignored, with the new democracy defined by legal and social segregation. this make-believe citizenship status would have proven effective absent the supreme court’s later intervention and interpretation of cases and statutes that applied to race. however, early supreme court rulings were not favorable to african americans. the scott v. sanford4 and plessy v. ferguson5 decisions only reinforced discriminatory practices and social inequality. in plessy, the court upheld a statute of legal segregation, ignoring the provisions of the fourteenth amendment.6 the court viewed african americans as citizens in name, not in law. justice harlan, in his dissent, maintained that: [i]n the eye of the law, there is in this country no superior, dominant, ruling class of citizens. there is no caste here. our constitution is colorblind, and neither knows nor tolerates classes among citizens. in respect of civil rights, all citizens are equal before the law. . . . the arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. it cannot be justified upon any legal grounds.7 furthermore, argued harlan, the plessy decision would poison relations between the races.8                                                                                                                           4 scott, 60 u.s. at 393. 5 plessy v. ferguson, 163 u.s. 537, (1896) (holding that railroad passenger carriage separated by race with equal accommodations was constitutional), overruled by 347 u.s. 483 (1954). 6 id. 7 id. at 559, 562. 8 id. 106 citizenship in name only vol. 3:1   what can more certainly arouse race hate, what can more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? that, as all will admit, is the real meaning of such legislation.9 as justice harlan predicted, this subordinate citizenship doctrine has created a historical legacy for african americans that is almost impossible to remove. w.e.b. du bois, a famous african american scholar, felt the passing of the fourteenth amendment did not inject any political life into the african american community.10 in his book, “black reconstruction,” he contrasted the difference between political rights for african americans and their ability to exercise rights and privileges granted to the majority.11 another group, u.s. citizens of mexican ancestry, has also had its citizenship challenged in the past. during the early 1940’s, mexicans were allowed to work in the united states legally through several agricultural labor programs, with as many as 450,000 mexican nationals working by the late 1950’s.12 however, many mexican immigrants entered the united states illegally, and in an attempt to stop their entry, the u.s. government established “operation wetback,” a government program designed to deport illegal mexicans residing in the united states.13 however, because the government was racially profiling people of mexican and latin ancestry, many were arrested and again deported to mexico despite being u.s. citizens because they could not show their citizenship status through documents.14 presently, several u.s.-born children of illegal immigrants are suing florida for denying them instate tuition rates.15 florida law states that the residency requirement must be established by the parents or dependent children prior to any in-state tuition pay rate.16 tania gallori, of the southern poverty law center, argues that the florida law is misapplied and that residency requirements do not apply to the parents’ citizenship status. kassandra romero, a student affected by the florida law and enrolled at palm beach state college, said “i’m an american citizen, i was born here. but now i feel left out.”17 by contrast, republican steve king, u.s. representative from iowa, led a charge against granting citizenship to children born in the united states of illegal immigrants.18 this position is contrary to the fourteenth amendment adopted in 1868, which says citizenship applies to all persons “born or naturalized in the united states.”19 iii. jury participation: the systematic exclusion                                                                                                                           9 id. at 560. 10 w.e.b. du bois, black reconstruction in american: an essay toward a history of the part which black folk played in the attempt to reconstruct democracy in america, 1860–1880, at 289 (1963). 11 id. 12 lorenzo a. alvarado, a lesson from my grandfather, the bracero, 22 chicano-latino l. rev. 55 (2001). 13 juan ramon garcia, operation wetback: the mass deportation of mexican america, undocumented workers in 1985, at 229–31 (1980); see also julian samora, los mojados: the wetback story 52 (1971). 14 id. 15 alan gomez, u.s. born children take fight over tuition to court, fla. denies in-state rates to illegal immigrants’ kids, usa today, nov. 11, 2011, http://www.usatoday.com/news/education/story/2011-11-02/florida-lawsuiteducation-in-state-tuition-illegal-immigrants/51050858/1. 16 id. 17 id. 18 id. 19 u.s. const. amend. xiv, § 1. 2013 columbia journal of race and law   107     i looked around the courtroom. the judge was white. the prosecutor was white. my lawyer was white. the jury was white. even though i was innocent i knew i had no chance. exonerated death row prisoner in 1880, shortly after reconstruction, the supreme court case of neal v. delaware held that race would not be a factor in the jury selection process pursuant to the fourteenth amendment equal protection clause.20 however, most states in the south defiantly refused to allow african americans to serve as jurors, seeing them as non-citizens.21 in the 1950’s, georgia jury commissioners prevented african americans from serving on juries by using different colored tickets to identify potential black and white jurors.22 in 1998 in georgia, the district attorney sent a letter during a capital murder case requesting the jury commissioner to place as few african american jurors as possible in the potential jury pool for that case.23 in 1935, the court clerk in norris v. alabama planned to eliminate african americans from being selected for jury duty by placing “col” after their names.24 in the dallas county district attorney’s office in texas, a training manual was uncovered in 1973 that instructed prosecutors to use their peremptory challenges to strike all people of color from the jury panel.25 the manual instructed, “do not take jews, negros, dagos, mexicans or a member of any minority race, no matter how rich or educated.”26 in the 1990’s, that same office trained its young prosecutors to circumvent any batson27 challenge by striking blacks for allegedly “sleeping.”28 the manual instructed its prosecutors to ask potential black and white jurors different questions. two years after the decision in batson v. kentucky, a prosecutor in the case of goggins v. state struck black jurors pursuant to a jury selection training course.29 in the philadelphia district attorney’s office in 1987, a training tape was found that gave advice on how to use pretextual reasons for striking african americans.30 the tape offered detailed techniques and methods to decide a jury.31 the tape was titled how to pick a jury and presented by a former philadelphia district attorney.32 when discussing potential black women as jurors, the prosecutor stated,                                                                                                                           20 see neal v. delaware, 103 u.s. 370 (1880). 21 e. earl parson & monique mclaughlin, black strikes: the focus of controversy and the effect of race based peremptory challenges on the american jury system, 3 geo. j.l. & mod. crit. race persp. 87, 91 (2011). 22 see avery v. georgia, 345 u.s. 559 (1953) (the use of white and yellow jury tickets for negro and white jurors); williams v. georgia, 349 u.s. 375, 380-81 (1955) (the court held that the separation of negro and white jury participants “makes it easier for those to discriminate who are of a mind to discriminate.” not a single negro was selected to serve on a panel of sixty, although many were available.). 23 see amadeo v. zant, 486 u.s. 214 (1988). 24 see norris v. alabama, 294 u.s. 587, 598–99 (1935). “col” was an abbreviation of “colored.” 25 steve mcgonigle, et al., jurors’ race a focal point for defense, dallas morning news, jan. 24, 2006, http://www.dallasnews.com/sharedcontent/dws/news/longterm/stories/082205dnprojurydefense.80317d4.html. 26 id. 27 batson v. kentucky, 476 u.s. 79 (1986) (the defendant, batson, who is african american, was convicted of second-degree burglary and receipt of stolen property. the prosecution used peremptory challenges to remove all potential african american jurors and this produced an all-white jury. the defendant argued that the jury should be a cross-section of the community and this violated the sixth amendment and the equal protection clause of the fourteenth amendment. the jefferson county circuit court convicted him and the kentucky supreme court affirmed the conviction. however, by a 7-2 vote, the u.s. supreme court reversed and remanded the lower court decision and held that the defendant’s fourteenth amendment equal protection right was violated by purposeful discrimination pursuant to race.). 28 mcgonigle et al., supra note 25. 29 goggins v. state, 529 so. 2d 649 (miss. 1988). 30 robert dunham, death penalty and race: partners in injustice, counterpunch (dec. 10, 2001), http://www.counterpunch.org/dunham1.html. 31 id. 32 jack mcmahon, how to pick a jury (or fear of a black jury), harper’s mag., july 2000, available at http://www.social.mtu.edu/faculty/speters/fearofabackjury.htm. 108 citizenship in name only vol. 3:1   “black women are very bad. there’s an antagonism. i guess maybe because they’re down-trodden in two respects—they’re women and they’re black and they want to take it out on somebody and you don’t want it to be you.”33 when discussing black jurors in general, the prosecutor said, “let’s face it, blacks from the low-income areas are less likely to convict . . . . there’s a resentment of authority, and, as a result, you don’t want those people on your jury.”34 the prosecutor further elaborated on potential black jurors, entering the room: another thing to do is when the forty people come in the room, count them. count the blacks and whites. you want to know at every point in the case where you are. you’ll never get it just right—you don’t want to go: is there a black back there? wait a minute. are you a black guy?35 that same office also conducted a jury seminar and taught, “[t]he ideal jury, 12 archie bunkers will convict on little evidence.”36 archie bunker is a fictional sitcom character from the tv series, “all in the family” that was popular in america in the 1960’s and 1970s. archie was an older, white male, uneducated, blue-collar worker with bigoted and ignorant views, and’ who consistently made insensitive, stereotype-laced racial and gender comments for comic relief. “if you wanted, you could strike almost all blacks. this gives you an advantage.”37 this long-lived practice of judicial obstruction has allowed the courts, prosecutors and some defense lawyers to view african americans as a hybrid citizen, who should not be allowed to participate in the judicial process as white citizens do. prosecutors’ frustrations with the possibility that african americans will identify with criminal defendants shows a deep-rooted bias against the african american community. some prosecutors view african americans as “shucking and jiving” when they walk, a strikable offence according to prosecutors.38 further, in the philadelphia district attorney’s office, researchers conducted a study from 1981 to 1997 on race-based jury selection.39 the research showed that the district attorney’s office struck african americans jurors twice as often as jurors of other races.40 african americans were struck at an even greater rate (three times as often as whites) in the district attorney’s office in jefferson parish, louisiana, pursuant to a 2003 study by the louisiana crisis assistance center.41 a report published in 2010 by the equal justice initiative examined patterns of unfairness in jury selection in eight southern states, including louisiana.42 the report documented instances where prosecutors provided unlawful or suspect reasons for removing black jurors from venires. prosecutors struck african americans from jury service because they appeared to have “low intelligence,” wore eyeglasses, walked in a certain way, dyed their hair, and countless other reasons that courts rubberstamped as “race-neutral.”43 some district attorneys’ offices trained prosecutors to exclude racial minorities from jury service and taught them how to mask racial bias to avoid a batson violation.44 in                                                                                                                           33 id. 34 id. 35 id. 36 see dunham, supra note 30. 37 id. 38 state v. tomlin, 384 s.e.2d 707, 708–09 (s.c. 1989). 39 see dunham, supra note 30. 40 id. 41 richard bourke, joe hingston & joel devine, black strikes: a study of the racially disparate use of peremptory challenges by the jefferson parish district attorney’s office, louisiana crisis assistance center 1(september 2003), http://www.blackstrikes.com/resources/report/black_strikes_report_september_2003.pdf. 42 illegal racial discrimination in jury selection: a continuing legacy, the equal justice institute (august 2010), http://www.eji.org/files/eji%20race%20and%20jury%20report.pdf. 43 id. at 4. 44 id. at 6. 2013 columbia journal of race and law   109     houston county, alabama, eight out of ten african americans qualified for jury service were struck by prosecutors in death penalty cases. in jefferson parish, louisiana, there was no effective african american representation on the jury in eighty percent of criminal trials.45 in the federal circuit, a 1994 survey on the success rate of batson challenges in seventy-six cases revealed that only three challenges were successful.46 however, the most disturbing tactic is when prosecutors describe black jurors as having some type of direct or indirect criminal connection. it is a well-known practice during voir dire to ask during questions like: “are any of your relatives drug dealers?” “have any of your relatives been arrested?” “have any of your relatives had any run-ins with police?”47 in some jurisdictions over forty percent of blacks defendants still find themselves facing an all-white jury.48 the reason may be the lack of diversity in district attorneys’ offices and on state and federal courts. despite the growing size of minority populations in america, ninety-eight percent of prosecutors are white in death penalty cases and ninety percent are white on the state and federal courts.49 african americans make up only six percent of judges in the united states.50 researchers on race and jury selection analyzed the behavior of the philadelphia district attorney’s office towards empaneled and excluded jurors from 1981 to 1997.51 the research showed a history of racial profiling in capital murder jury-selection cases.52 in jefferson parish, louisiana, the district attorney’s office struck blacks three times as often as whites, as reported by the louisiana crisis assistance center in 2001.53 in the capital murder trial of albert jefferson in chambers county, alabama, the prosecutor divided the potential jurors into four categories: “strong,” “medium,” “weak,” and “black,” and then removed all twenty-six of the blacks from the “black” category.54 an all-white jury convicted mr. jefferson, sentencing him to death.55 in another criminal trial, emanual fields was convicted by an all-white jury in dallas, texas.56 in that trial, prosecutors struck an african american for having “gold teeth” and “wearing gold necklaces.”57 north carolina took a step toward eradicating racism in its local justice system with a newly enacted law, the north carolina racial justice act of 2009. the law states that a capital defendant could                                                                                                                           45 id. at 5. 46 jere w. morehead, when a peremptory challenge is no longer peremptory: batson’s unfortunate failure to eradication invidious discrimination from jury, 43 depaul l. rev. 625, 628 (1994). 47 e. earl parson & monique mclaughlin, black strikes: the focus of controversy and the effect of race based peremptory challenges on the american jury system, 3 geo.j.l. & mod. crit. race persp. 87, 96 (2011). 48 bryan a. stevenson & ruth e. friedman, deliberate indifference: judicial tolerance of racial bias in criminal justice, 51 wash. & lee l. rev. 509, 519 (1994) (describing the racial composition of juries in counties with significant african american populations). 49 rachel lyon, media, race, crime and punishment: re-framing stereotypes in crime and human rights issues, 58 depaul l. rev. 741, 752 (2009) (describing the racial composition of attorneys general in death penalty states). 50 pat k. chew & robert e. kelley, myth of the color blind judge: an empirical analysis of racial harassment cases, 86 wash. u. l. rev. 1117, 1125 (2009) (collecting data on racial makeup of the judiciary). 51 dunham, supra note 30 (relating heightened rates of incarceration for african american defendants with discriminatory jury selection). 52 id. 53 richard bourke, joe hingston & joel devine, black strikes: a study of the racially disparate use of peremptory challenges by the jefferson parish district attorney’s office, louisiana crisis assistance center (september 2003), http://www.blackstrikes.com/resources/report/black_strikes_report_september_2003.pdf. 54 steveson & friedman, supra note 48, at 523. 55 id. 56 holly becka, steve mcgonigle, tim wyatt & jennifer la fleur, ‘i just felt like i was lynched’: man convicted of armed robbery says he never had chance with white jury after 5 blacks rejected, dallas morning news, aug. 23, 2005, at 12a. 57 id. 110 citizenship in name only vol. 3:1   state a claim under the act upon a finding that, “race was a significant factor in decisions to exercise peremptory challenges during jury selection.”58 the first inmate to challenge his sentence under this act was marcus robinson, who has been on death row since 1994.59 on april 20, 2012, superior court judge gregory weeks ruled that mr. robinson was the victim of clear discrimination in jury selection.60 judge weeks found “race was a significant factor in decisions to exercise peremptory challenges” in deathpenalty cases in the state generally and in the county where mr. robinson was tried. almost forty percent of county residents were black, yet the jury was made up of nine whites, two blacks and one american indian. statewide, fifty-two percent of death row inmates are black, although blacks only make up twentytwo percent of the state population. the judge found that “highly reliable” statistical evidence from a study by the michigan state university college of law showed racial discrimination in removing blacks from juries in all but four of the state’s 100 counties. the study found that prosecutors used peremptory challenges to remove blacks from juries at a rate more than twice that of whites, a disparity even more pronounced in the trials the researchers examined in cumberland county and in mr. robinson’s trial in particular.61 judge weeks also found that state prosecutors “intentionally discriminated,” and called their arguments against personal bias “irrational,” “inaccurate” and “misleading.” prosecutors have indicated they will appeal the decision.62 in response to the ruling republican leaders in the general assembly vowed to continue in their attempts to repeal the racial justice act. the republican house speaker maintained that “the racial justice act allowed a convicted murderer to evade justice and punish a suffering family. the leadership of the general assembly will continue to work to repeal the racial justice act and provide fair and just laws to ensure that only the guilty are punished.”63 the republican leaders made no mention of discriminatory peremptory challenge practices in their state or the laudable attempts to rectify this ongoing problem. obstruction of jury participation illustrates the insecure nature of full citizenship rights for african americans, both in the ability to be judged by one’s peers and the right to sit on a jury. this notion of citizenship in name only has a historical and current context to african americans exercising their right to full jury participation. iv. the new landscape in voting rights suppression: redefining voter id laws and its challenges private efforts to police the polls create a real risk of vote suppression, regardless of their interest.64 in keeping with the theme and accoutrements of citizenship, one must look at voting as a mechanism to advance a citizen’s place in society. although in many cases, voting is used by the majority to prevent the minority from exercising the rights of full citizenship. along with jury participation, voting is limited only to united states citizens. since reconstruction, there has been a concerted and pervasive effort to block and to prevent minority citizenry from exercising their rights of citizenship in the voting booth. recent efforts to prevent citizens from voting must be looked at through the prism of                                                                                                                           58 n.c. gen stat. §15a-2011(b)(3) (2011). 59 campbell robertson, “bias law used to move a man off death row,” n.y. times, apr. 20, 2012, at a1, available at http://www.nytimes.com/2012/04/21/us/north-carolina-law-used-to-set-aside-a-death-sentence.html. 60 id. 61 id. 62 id. 63 craig jarvis, gop will continue to fight racial justice act, leaders vow, charlotte observer, apr. 21, 2012, available at http://www.charlotteobserver.com/2012/04/20/3188167/gop-will-continue-to-fight-racial.html. 64 ian urbina, fraudulent voting re-emerges as a partisan issue, n.y. times, oct. 27, 2010, at a17, available at http://www.nytimes.com/2010/10/27/us/politics/27fraud.html (quoting wendy weiser of the nyu brennan center for justice discussing efforts by groups in houston to intimidate voters). 2013 columbia journal of race and law   111     the long history of the united states in its attempts to preclude and disqualify minorities, particularly african americans from voting, and thus, to dilute the african american’s electorate and, in effect, to make african americans second tier citizens in their own country. without the vote, african americans cannot participate in exercising their full citizenry or effect change to ensure their own prosperity. in examining the old landscape of voting, southern states universally felt a compelling interest to protect their citizens against “unqualified” african american voters.65 the proposed fifteenth amendment drew controversial debate by congress of black inferiority as to the right to vote. indiana senator thomas henricks stated that newly freed slaves could not add to the political process.66 senator willard saulsbury, from delaware, excluded african americans from voting as a wish from god.67 during this period, the most used obstruction tool was the literacy test. registrars would ask african americans questions that were impossible to answer and were used solely to exclude. for example, blacks would be asked, “how many bubbles in a bar of soap?”68 or “how many windows are in the white house?”69 historically, state officials invented race neutral voting standards with pretextual questions to eliminate african americans from registering to vote. african americans were subject to poll tax payments in advance and aforementioned absurd literacy tests as mechanisms for discrimination.70 the insidious discrimination was perpetuated by registrars and state officials determined not to allow african americans the right to participate in the voting process.71 in 1882, the mailbox system was adopted in south carolina, requesting voters to use different boxes for different ballots.72 a voting reform method of secret ballots continued to frustrate uneducated individuals and systematically disenfranchised the african american vote.73 voting requirements of poll taxes, grandfather clauses, and literacy tests, all under an umbrella of color-blind voting regulations, were in actuality officials’ selective procedures to discriminate.74 grandfather clause laws allowed illiterate whites to continue to vote, while african americans were foreclosed from voting.75 in guinn v. united states, the court held that “grandfather clauses” violated the fifteenth amendment.76 the supreme court deemed this a corrective means for disenfranchised african americans,77 whose ancestors were slaves until 1863.                                                                                                                           65 francis d. adams & barry sanders, alienable rights, the exclusion of african americans in a white man’s land, 1619–2000, at 192 (2003). 66aloyisus leon higginbotham, jr., shades of freedom, racial politics and presumptions of the american legal process 169 (1996). 67 id. 68 id.; see also herbert brownell, jr., attorney general of the united states, statement on the proposed civil rights legislation before the subcommittee on constitutional rights of the senate judiciary committee (feb. 14, 1957), available at http://www.eisenhower.archives.gov/dl/civil_rights_civil_rights_act/ statementagoncrlegislation14feb57cover.pdf. in his presentation, he announced president eisenhower’s plan to create a bi-partisan commission to investigate voting irregularities. 69 higginbotham, supra note 66. 70 adams & sanders, supra note 65, at 229. 71 id. 72 id. 73 id. 74 id. 75 some of the first states to adopt such laws were louisiana, north carolina, alabama and virginia. stephen j. safranek, race and the law, or how the courts and the law have been warped by racial injustice, 48 wayne l. rev. 1025, 1048 (2002) (describing the history of adoption of literacy tests for voting). 76 guinn v. united states, 238 u.s. 347, 357–58 (1915). the clause reads: 112 citizenship in name only vol. 3:1   by 1957, attorney general brownell released shocking information that the registrar in camden county, north carolina, administered a different literacy test for black and white applicants. the registrar in greene county, north carolina, demanded that the african american applicants answer a series of questions, including, but not limited to, whether they were members of the naacp and if that organization “attacked” the united states, would the black applicant participate. the white applicants were not required to answer such questions.78 under the 1965 voting rights act, african americans were given the full opportunity to exercise their full citizenship rights. this hallmark act is considered the most successful civil rights legislation in history for african americans. over the past century, the united states congress, through the voting rights act, expanded the right to vote and knocked down innumerable barriers to full electoral participation. since 2000, with tricks and intimidation tactics and, since 2010, with the first voter id laws, that momentum to allow all citizens the unencumbered right to vote abruptly shifted. african americans, after many years of exercising their right to vote, are now facing challenges in the voting process that are affecting their participation in the electorate system. challenges to the african american vote include intimidation, trickery, and voter identification laws. recent attacks on african american voting rights began during the 2000 presidential election. the u.s. commission on civil rights issued a report on discriminatory practices against african americans on election day in florida and found that thousands were denied the right to vote.79 the report pointed out that african americans were ten times as likely to have their ballots rejected than nonafrican americans.80 the report stated that about 14.4 percent of black voters’ ballots were rejected compared to 1.6 percent of non-black voters.81 the report’s data further stated, that african americans made up eleven percent of all florida voters, but fifty-four percent of the spoiled ballots, some 187,000, were of black voters.82 the data further indicated that eighty-three out of 100 precincts with spoiled ballots were from majority black precincts. these spoiled ballots were rejected and the votes were not counted.83 in addition to claiming that african american ballots were spoiled, detractors have also used intimidation and tricks to rule the voting process. in milwaukee, in november 2004, fliers were distributed in black neighborhoods under the false name of “milwaukee black voters league.”84 the fliers inaccurately pronounced that “anyone convicted of any offense, however minor, is ineligible to vote;” “if any family member has any conviction, it also disqualifies other family members from voting;”                                                                                                                                                                                                                                                                                                                                                                                                         no person shall be registered as an elector of this state or be allowed to vote in any election held herein, unless he be able to read and write any section of the constitution of the state of oklahoma; but no person who was, on january 1st, 1866, or any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation, and no lineal descendant of such person, shall be denied the right to register and vote because of his inability to so read and write sections of such constitution. precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section at the time of registration, provided registration be required. should registration be dispensed with, the provisions of this section shall be enforced by the precinct election officer when electors apply for ballots to vote. 77 id. 78 brownell, supra note 68, at 6–7. 79 voting irregularities in florida during the 2000 presidential election, u.s. comm’n on c.r. (2001), available at http://www.usccr.gov/pubs/vote2000/report/exesum.htm. 80 id. 81 id. 82 id. 83 id. 84 steve schultze, campaigns condemn political flier, paper aimed at black voters falsely states voting rules, milwaukee j. sentinel, oct. 29, 2004, at b2. 2013 columbia journal of race and law   113     and that “it’s too late for unregistered voters to vote.”85 the flier further stated, “if these rules are violated, you are facing a conviction of ten years in prison and your children will be taken away from you.”86 also, in milwaukee, in october 2010, a billboard showed people in jail and behind bars referencing “we voted illegally.”87 the billboard intimidation tactics are back for the 2012 election. billboards that point out the penalties for voter fraud are appearing in predominantly african american communities in ohio and wisconsin, despite no evidence that voter fraud exists.88 thirty-three signs have cropped up in milwaukee and cleveland in predominately poor and african american sections of the state warning of the penalty for voting fraud.89 legal activists and community members say that the signs deliberately target and seek to intimidate blacks and hispanics, other minorities and the poor. "the billboards create a chilling effect," said marcia johnson-blanco, a co-director at the lawyers' committee for civil rights.90 during the 2004 elections in allegheny county, pennsylvania, fake fliers were distributed on official-looking paper telling republicans to vote on tuesday, november 2, 2004, and democrats the next day.91 in ohio, a memo also distributed on official looking board of election stationary, told voters they could not vote if registered by a naacp voter drive.92 a fake letter purporting to come from the naacp instructed voters in charleston, south carolina that they would be arrested if they voted with past due child support payments and unpaid parking tickets.93 a candidate for office in orange county, california sent fliers in spanish to the latino community prior to the november 2006 election stating: “you are advised that if your residence in this country is illegal or you are an immigrant, voting in a federal election is a crime that could result in jail time.”94 in response to the flier, california’s secretary of state, bruce mcpherson, mailed letters to the latino community informing them that all u.s. citizens have a right to vote and stated that “voter intimidation in any form is completely unacceptable.”95 a federal judge in east texas issued an order during the november 2006 elections stopping the attorney general and texas election officials from prosecuting people of color for helping the elderly, the disabled and other minorities cast their vote.96 the lone star project called this behavior “a voter suppression scheme” designed to impart fear and intimidation. during the november 2006 elections, latinos in virginia and colorado were told that their ancestry would make them ineligible to vote.97 in 1988, republican assembly candidate curt pringle settled a civil rights suit for voter intimidations. pringle posted “security guards” at predominately latino voting stations in orange county, california to prevent                                                                                                                           85 id. 86 id. 87 urbina, supra note 64. 88 kim palmer, democrats cry foul over voter fraud billboards in midwestern cities, reuters, oct. 11, 2012, available at http://in.news.yahoo.com/democrats-cry-foul-over-voter-fraud-billboards-midwestern-001448939--sector.html. 89 id. 90 id. 91 jo becker & david finkel, now they’re registered, now they’re not, wash. post, oct. 31, 2004, at a22, available at http://www.washingtonpost.com/wp-dyn/articles/a12514-2004oct30.html. 92 id. 93 id. 94 robert navarrett, jr., commentary: letter is bid to intimidate latino voters, cnn, oct. 23, 2006, http://www.cnn.com/2006/us/10/23/navarrette/index.html. 95 press release, california sec’y of state, california secretary of state bruce mcpherson and major latino organizations send official election letter refuting orange county intimidation letter (oct. 25, 2006), available at http://www.sos.ca.gov/admin/press-releases/prior/2006/06_161.pdf. 96 terrence stutz, prosecution of voter helpers halted, dallas morning news, nov. 2, 2006, http://www.wfaa.com/sharedcontent/dws/news/politics/local/stories/dnabbott_02tex.art.state.edition1.3dfc5d0.html. 97 john stanton & rebecca plevin, democrats allege that calls to latino voters have threatened arrest, roll call, nov. 7, 2006, available at http://www.prisonplanet.com/articles/november2006/071106_b_democrats.htm. 114 citizenship in name only vol. 3:1   non-citizens from casting ballots. in 2006, republicans in new york challenged late registered voters by using a check challenge of sending police officers out to check listed addresses.98 now, republican lawmakers and tea party organizers are trying to expand their political muscle by making it harder for minorities, the poor, and the elderly to exercise their right to vote in the 2012 presidential election.99 these present voting obstruction tactics and oppressive voter id laws are designed to reduce any chances for democrats to remain in the white house. republicans argue that voter id laws correct and prevent voting irregularities.100 tea party members are now planning to question voters at the polls as to their eligibility to vote. in october of 2010, tea party organizers announced a $500.00 bounty would be paid to anyone who turns in a person who is prosecuted for voter fraud.101 a surveillance squad has also been established by the tea party to tape and photograph persons engaging in what they perceive to be suspicious voting irregularities.102 in some cases, they will follow buses that take voters to the polls. in response, liberal groups and voting-rights advocates are sounding an alarm and claiming that such strategies are scare tactics intended to suppress minority and poor voters.103 these political groups have created an atmosphere of fear and intimidation in low-income and minority communities through tricks and scare tactics designed solely to suppress voting.104 their tactics have gained traction even after being universally repudiated by the legal academy. in 2001, the association of community organization for reform was instrumental in helping register about 1.3 million lowincome and people of color to vote.105 due to conservative attacks on its methods, the organization closed in 2010.106 presently, organizations like the league of women voters and houston votes (a voter registration organization in latino communities) have faced an incredible battle to register voters in light of the new oppressive voter id laws.107 because of these intimidation tactics, voter registration is down in many states. in 2010 in wisconsin, voter registration declined forty-three percent since 2006. in florida, voter registration declined twenty-seven percent; in ohio, voter registration was down twenty-five percent; in north carolina registration declined twenty-eight percent, and in maryland, voter registration declined twentyone percent.108 in thirty-four states, largely republican legislation has been introduced requiring a photo id to vote. republican legislatures are increasingly imposing strict id requirements for voters, ostensibly to deter in-person voter fraud. but voter fraud in general is rare and the type the legislation targets is "virtually non-existent" according to an extensive public-records search conducted by news21.109                                                                                                                           98 editorial, an untimely voter purge, n.y. times, nov. 1, 2006, at a 22 (“there is a process for investigating an accusation of voter fraud. it involves sending a letter to an address in dispute, and possibly following up with a police inquiry.”). 99 editorial, the republican threat to voting, n.y. times, apr. 26, 2011, at a 26, available at http://www.nytimes.com/2011/04/27/opinion/27wed1.html. 100 urbina, supra note 64. 101 id. 102 id. 103 id. 104 e. earl parson & monique mclaughlin, the persistence of racial bias in voting: voter id, the new battleground for pretextual race neutrality, 8 j.l. soc’y 75 (2007). 105 urbina, supra note 64. 106 id. 107 id. 108 id. 109 natasha khan & corbin carson, new database of us voter fraud finds no evidence that photo id is needed, news 21, aug. 11, 2012, http://openchannel.nbcnews.com/_news/2012/08/11/13236464-new-database-of-us-voter-fraudfinds-no-evidence-that-photo-id-laws-are-needed?lite. 2013 columbia journal of race and law   115     news21 election fraud database turned up ten cases of voter impersonation. with 146 million registered voters in the united states during that time, those ten cases represent one out of about every fifteen million prospective voters.110 “voter fraud at the polls is an insignificant aspect of american elections,” said elections expert david schultz, professor of public policy at hamline university school of business in st. paul, minnesota.111 yet, despite no evidence of voter fraud, republicans are still pushing for voter id laws. the only explanation for this is voter suppression. for example, in pennsylvania, house majority leader mike turzai suggested that the house’s end game in passing the voter id law was to benefit the gop politically, saying that the passing of the voter id law was designed to allow governor romney to win the state of pennsylvania.112 one voter id law, in indiana, was upheld by the united states supreme court in 2008 on the grounds that as the process of getting an identification card was not burdensome.113 the supreme court found it compelling that indiana’s voter id cards are free and that “the inconvenience of making a trip to the dmv, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”114 in addition, indiana allowed those without a photo identification to cast a provisional ballot that would be counted if they executed an affidavit.115 an example of the burden of one state’s voter id requirement is wisconsin’s voter id law, which was struck down at the trial court level.116 the opinion in that case spelled out a compelling argument why wisconsin's voter id law is unconstitutional. the judge stated that the voter id law created a new class of citizens that is barred from voting, specifically, those without the right form of state-mandated photo id.117 the judge also found that the law's restriction would fall disproportionately on those with the fewest resources to obtain an id.118 the judge first examined article iii, section 1 of the wisconsin constitution, which specifies who may vote in wisconsin: “every united states citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.”119 the judge further stated, “[t]he government may not disqualify an elector who possesses those qualifications on the grounds that the voter does not satisfy additional statutorily-created qualifications not contained in article iii, such as a photo id,”120 and “[b]y enacting act 23's photo id requirements as a precondition to voting, the legislature and governor have exceeded their constitutional authority.”121 act 23 in wisconsin went “beyond mere regulation of elections. its photo id requirements impermissibly eliminate[d] the right of suffrage altogether for certain constitutionally qualified electors.”122 thus, the judge found that act 23's photo id requirements were unconstitutional because                                                                                                                           110 id. 111 id. 112 kelly cernetich, turzai: voter id law means romney can win pa, politics pa (june 25, 2012), http://www.politicspa.com/turzai-voter-id-law-means-romney-can-win-pa/37153/. 113 crawford v. marion cnty. election bd., 553 u.s. 181, 202–03 (2008). 114 id. at 198. 115 id. at 199–200. 116 league of women voters of wis. educ. network, inc. v. walker, no. 11 cv 4669, 2012 wl 763586, at *8 (wis. cir. ct. mar. 12, 2012). 117 id. at *5–6. 118 id. at *7. 119 id. at *1; see wis. const. art. iii, § 1. 120 league of women voters, 2012 wl 763586, at *3. 121 id. at *4. 122 id. at *5. 116 citizenship in name only vol. 3:1   they abridge the right to vote.123 evidence showed that “many constitutionally qualified electors from all walks of life will be blocked from voting at the polls by act 23, involuntarily and occasionally through no fault of their own,”124 causing an insurmountable burden to constitutionally-qualified electors. without question, where it exists, voter fraud corrupts elections and undermines our form of government. the legislature and governor may certainly take aggressive action to prevent its occurrence. but voter fraud is no more poisonous to our democracy than voter suppression. indeed, they are two heads on the same monster. a government that undermines the very foundation of its existence—the people's inherent, pre-constitutional right to vote—imperils its legitimacy as a government by the people, for the people, and especially of the people. it sows the seeds for its own demise as a democratic institution.125 over twenty-one million citizens do not have a government-issued id in the united states.126 these restrictive laws will disproportionately affect the poor, minority, elderly and blacks. for example, the brennan study indicated that twenty-five percent of african americans do not have the required government-issued id.127 at the same time, in texas, a voter id law allows a person to produce a concealed hand gun license as proof of identify but will not allow a state university id for proof of identity.128 moreover, ninety-two percent of all concealed handgun owners are non-african american.129 twelve states in 2011 have introduced proof of citizenship laws and bills to eliminate early voting, sameday voter registration, voting registration drives and sunday voting.130 these laws inhibit the efforts of many african american churches that organize “souls to the polls” drives, which allow their members to collectively go to the polls after sunday services to vote.131 in battleground states for the 2012 election, republican legislators have redefined citizenship and legal status to cast a vote. government-issued id requirements, the reductions in early voting and the imposition of new restrictions on voter registration drives, threatens citizens’ exercise of their full citizenship rights to participate in the political process by these new laws. in addition, the birther movement challenging president obama’s citizenship status, as well as bills and laws addressing birthright citizenship for illegal immigrant children born in the united states, indicate a clear movement toward second-tier citizenship.132 analysis by the brennan center shows that these new laws could affect 5 million eligible voters nationwide.133 one must be a united states citizen in order to vote in america. normally, one must also be at least eighteen years old and swear by affidavit that he or she is a united states citizen and meets all voting requirements. however, states are now requiring citizens to produce documents proving citizenship status.134 these laws are a direct outgrowth of the arizona legislation’s attack on mexican                                                                                                                           123 id. 124 id. at *6. 125 id. at *7. 126 wendy r. weiser & lawrence norden, voting law changes in 2012, brennan ctr. for justice 2 (2011), available at http://brennan.3cdn.net/92635ddafbc09e8d88_i3m6bjdeh.pdf. 127 id. at 24. 128 id. 129 id. 130 id. at 2. 131 id. at 33. 132 marc lacey, birthright citizenship looms as next immigration battle, n.y. times, jan. 5, 2011, at a1, available at http://www.nytimes.com/2011/01/05/us/politics/05babies.html. 133 urbina, supra note 64. 134 id. 2013 columbia journal of race and law   117     immigrants and the false perception that immigrants were voting illegally.135 the arizona bill, which was called proposition 200 and went into effect in 2006, authorized officials to reject a voter’s registration that was not accompanied by an application with citizenship documentation.136 these proof of citizenship laws have arisen based on the growing immigrant population in states like alabama, georgia and south carolina.137 again, the same recycled argument is used, that it will prevent non-citizens from registering to vote and will combat voter fraud. however, these laws will exclude a large portion of eligible voters who do not have ready access to citizenship documents.138 with the resurrection of these old challenges to citizenship rights for african americans, there is a growing concern of voter disillusionment. a 2006 pew research center report found african americans were twice as likely to have no confidence in the voting process as from previous elections.139 another study in 2004 found that african americans felt less confident than white voters that their votes were accurately counted.140 with voter id laws and other voting suppression tactics, the opportunities given by the voting rights act may be in danger for the first time since its passage. the right to vote will always be an important conduit for economic property for all people of color. v. the new vision of citizenship: self determination for the 21st century well into the twenty-first century, the supreme court must still decide issues of citizenship for people of color. these issues should have already been decisively put to rest as they have been for other citizens of the united states. today, no one would seriously contest white citizens’ participation in the electoral process, their jury participation or any other exercise of their citizenship rights. yet, as a nation, we are still wrestling with these issues for people of color. our voting and jury institutions have profoundly shaped and molded our definition of black citizenship into the twenty-first century. african americans must be viewed on a universal level as “real” u.s. citizens, by law and by action, deserving all rights, liberties, opportunities and constitutional protections for full citizenship status. jury exclusion and voter suppression are both barriers to full citizenship and, instead of reinforcing citizenship rights, create second-tier citizenship for people of color. furthermore, stereotypes that people of color are associated with poverty, crime and welfare benefits continue to speak to a type of hybrid citizenship. african americans must continue to exercise the right to vote on a much larger scale in conjunction with fighting new oppressive voter identification laws and jury discrimination. this method will allow african americans to have more control of the political and judicial process.                                                                                                                           135 id. 136 id. 137 id. 138 id. 139 who votes, who doesn’t and why: regular voters, intermittent voters, and those who don’t, pew research ctr. (oct. 18, 2006), http://people-press.org/reports/ display.php3?reportid=292. 140 r. michael alvarez, thad e. hall, & morgan llewellyn, american confidence in electronic voting and ballot counting: a pre-election update, caltech/mit voting technology project (nov. 3, 2006), at 4, available at http://www.vote.caltech.edu/sites/default/files/american_confidence_ev_bc.pdf. 118 citizenship in name only vol. 3:1   zalesne eic edit (dz rev) 2013 columbia journal of race and law 23 racial inequality in contracting: teaching race as a core value deborah zalesne* today’s students live in an era that dominant social voices declare to be a “post-racial society.” issues of “discrimination,” it follows, are simply isolated incidents easily addressed by the panoply of existing civil rights laws. this belief creates expectations on the part of first-year law students who may dismiss or ignore the existence of structural racism, sexism, and classism. the law not only creates structures of subordination, it also makes them invisible. revelation of the subordinating effects of legal rules is an important first step in legal education. the apparent neutrality of contract law in particular masks the distributive effects of legal rules. contract is an area of private ordering, but it is courts that invalidate or legitimize the use or allocation of power between or among parties to a contract. unspoken assumptions about power—who has it, who may use it, and how it may be used—are embedded in contract law and theory. these assumptions may conceal bias, stereotypes, and cultural preferences in a court’s final decision. an analysis that presumes neutrality on the part of the court and autonomy on the part of the parties overlooks the various advantages and handicaps that people bring with them to each transaction, some of which may be the result of the social identity of the parties. a “neutral” free market system tolerates certain pockets of discrimination in contracting which are, in turn, endorsed by the law in the name of freedom of contract. this article addresses the importance of incorporating such discussions about identity in the first year core curriculum. it offers specific materials and techniques for doing this in a contracts class, with emphasis on the necessity and the value of grounding theoretical analysis squarely in the instruction students receive in legal reasoning. the article proposes that issues of identity should be incorporated into the classroom not only when the parties in the cases are people of color, and not simply as a politically correct exercise, but pervasively throughout the semester as a way of advancing students’ legal reasoning skills and understanding of legal doctrine. this approach should improve the law school experience for most students and produce lawyers who are more capable of practicing law holistically. i. introduction: race neutrality and concealed racial dimensions in contract law……………………………………… 24 ii. critical race theory as a backdrop…………………………... 28 iii. the effect of race on various commonplace contracting issues……………………………………………………. 29 * professor of law, city university of new york school of law; b.a., williams college; j.d., university of denver college of law; ll.m., temple university school of law. some of the introductory remarks to this paper, as well as parts of the discussion of williams v. walker thomas, were first printed in david nadvorney and deborah zalesne, teaching to every student: explicity integrating skills and theory into the contracts class (2013). parts of the discussion of acedo v. state of arizona, department of public welfare were first printed in deborah post & deborah zalesne, vulnerability in contracting: teaching first year law students about inequality and its consequences in vulnerable populations and transformative law teaching: a critical reader 89 (2011). i would like to thank professors alan chen, david nadvorney, and deborah post for their detailed and thoughtful comments on an earlier draft. i would also like to thank my fabulous research assistants from the university of denver, michael claggett and jacob holt, and from cuny, miranda junge, bright limm, and natalie saidi, for their invaluable research assistance.   24 racial inequality in contracting vol. 3:1 a. racial discrimination in the marketplace…………………………… 30 1. disparate pricing……………………………………………... 31 2. contracts solutions…………………………………………… 32 b. issues of assent and the use of the objective test………………… 35 c. alternative reproductive technology contracts and public policy: special issues facing women and families of color………………. 39 1. changing the narrative………………………………………. 40 2. market rhetoric and pricing…………………………………. 41 d. specific performance and negative injunctions: involuntary servitude and the thirteenth amendment………………………….. 42 iv. conclusion………………………………………………………………... 46 i. introduction: race neutrality and concealed racial dimensions in contract law today's students live in an era that the most dominant social voices declare to be a “post-racial society.”1 issues of “discrimination,” it follows, are simply isolated incidents easily addressed by the panoply of existing civil rights laws. this belief creates expectations on the part of first-year law students who may dismiss or ignore the existence of structural racism, sexism, and classism. the law not only creates structures of subordination, it also makes them invisible. revelation of the subordinating effects of legal rules is an important first step in legal education. traditionally, much of the first-year law school curriculum is teaching students to “think like lawyers.” this includes learning, at least as a baseline principle, that the law is objective and is generally applied equally to all people. the underlying assumption is that the law includes all cultural perspectives, and therefore should be unaffected by the discourse on race and gender. while law students are commonly taught to analyze and dissect case law and legal doctrine, they are less frequently taught to question the fundamental and unstated assumptions on which legal doctrine depends. without the requisite training or critical perspectives, students who assume neutrality and objectivity accept a flawed analytical structure. contract law provides a particularly rich and interesting backdrop for the analysis of racial assumptions, in part because of its racially-charged history and the ways in which the doctrine is inextricably linked to race.2 further, a complete understanding of contract disputes routinely requires an 1 see sheryll cashin, shall we overcome? “post-racialism” and inclusion in the 21st century, 1 ala. c. r. & c.l. l. rev. 31, 34 (2011) (discussing america’s nondiscriminatory national identity); barack obama, ill. state senator, keynote address at the democratic national convention (july 27, 2004) available at http://www.barackobama.com/news/entry/remembering-the-2004-convention/ (describing the united states in postracial terms: “there's not a black america and white america and latino america and asian america; there's the united states of america . . . .”). 2 anthony r. chase, race, culture, and contract law: from the cottonfield to the courtroom, 28 conn. l. rev. 1, 6–7 (1995) (claiming that “[t]he history of american contract law and issues of race and culture are inextricably intertwined” beginning with african american slaves’ early position as the subject of contracts); see also amy h. kastely, out of the whiteness: on raced codes and white race consciousness in some tort, criminal, and contract law, 63 u. cin. l. rev. 269, 293 (1994) (giving the objective theory in contract law as an example of “race function[ing] as a foundational element of legal doctrine”). 2013 columbia journal of race and law 25 analysis of the effects of inequality, including race dynamics, on parties’ bargaining choices.3 this article starts from the premise that the best way to properly train students to question the fundamental assumptions of contract doctrine is to fully embed the critiques in the analytical structure and legal analysis of the doctrine we teach our students. when contracts scholars talk about economics, they traditionally refer to neoclassical economics of the type espoused by judge posner. neoclassical contract theory embraces the idea of formal legal color blindness in assessing the validity of a contract, assuming that an individual’s race or ethnicity played no role in a contract’s formation or content.4 by focusing on “efficiency” rather than “fairness,” the neoclassical perspective assumes a certain level of natural fairness and self-regulation in the system, even when there are great disparities in wealth.5 the neoclassical perspective that dominates contract doctrine also assumes autonomous choice and self-sufficiency on the part of economic actors.6 these assumptions require courts to treat all consenting adults the same way based on the notion that the rational economic actor has no race or gender. 7 however, anglo-american law was written by and for white men and the rational economic actor has been conceptualized principally from a white male perspective. the law privileges this perspective, often ignoring the contested meanings and competing perspectives that exist in the wider society.8 the apparent neutrality of contract law masks the distributive effects of legal rules. contract is an area of private ordering, but it is courts that invalidate or legitimize the allocation of power between or among parties to a contract. unspoken assumptions about power—who has it, who may use it, and how it may be used—are embedded in contract law and theory. these assumptions may conceal bias, the 3 blake d. morant, the relevance of race and disparity in discussions of contract law, 31 new eng. l. rev. 889 (1997). 4 chase, supra note 2, at 48 (noting the tendency for colorblindness in modern contract law, and citing justice scalia’s concurrence in city of richmond v. croson, 488 u.s. 469, 520 (1989) as suggesting an approach which forbids consideration of race); see also blake d. morant, supra note 3, at 890 (discussing the seemingly impartial goals of modern contract law). 5 edward rubin, why law schools do not teach contracts and what socioeconomics can do about it, 41 san diego l. rev. 55, 58 (2004) (“law and economics in its early form asked legislators and, most often, judges to make decisions on the basis of efficiency, while critical legal studies asked them to base their decisions on a concern for social justice.”). 6 when legal scholars talk about economics, they have traditionally referred to neoclassical economics of the type espoused by judge posner. a “pure” economic legal analysis carries with it several basic assumptions, including: “(1) people behave rationally, according to the definitions of rational behavior extant in neoclassical economics; (2) people act only with self interest; (3) income distribution is in accordance with relative productivity under conditions of perfect competition; (4) preferences are independent of the economic system; (5) race, sex, and nature can be ignored or encapsulated within the market; and (6) the best starting point for economic analysis is one that considers essentially, or nearly factually accurately, the conditions necessary for perfect competition, including no barriers to market entry, perfect knowledge, zero transactions costs, and others.” lynne l. dallas, teaching law and socioeconomics, 41 san diego l. rev. 11, 17–18 (2004). 7 leon trakman, pluralism in contract law, 58 buff. l. rev. 1031, 1086–87 (2010) (pointing out that the judiciary “use[s] paternalistic principles of contract law to mask substantive inequalities between parties a treats the reasonable person as a reasonable white man”). 8 socioeconomics differs from neoclassical economics primarily in that it “begins with the assumption that an adequate understanding of economic behavior cannot be achieved by the assumptions of autonomy, rationality, and efficiency that stand at the epistemological foundations of neoclassical economics.” robert ashford, socioeconomics: what is its place in law practice?, 1997 wisc. l. rev. 611, 612 (1997). whereas neoclassical economics views markets as “natural,” guided by efficiency principles and invisible hands, from the socioeconomic perspective, markets are a social construction. dallas, supra note 6, at 29. consumption, production and distribution of income are not the result of an aggregation of autonomous choices, but occur within the context of social norms, disparate bargaining power, sexism, racism, and educational inequalities. the socioeconomic perspective, recognizing the capacity for empathy, questions the notion that behavior can only be explained through self-interest rather than through other forces such as socialization or psychology of the individual. under this view, though people often act to maximize their own utility, other motivations may also be at play, including interest in the well being of others—competitive behavior is only a subset of human behavior within a societal and natural context that both enables and constrains competition and cooperation. id. 26 racial inequality in contracting vol. 3:1 impact of stereotypes, and cultural preferences in a court’s final decision.9 an analysis that presumes neutrality on the part of the court and autonomy on the part of the parties to the contract overlooks the various advantages and handicaps that people bring with them to each transaction, some of which may be the result of the social identities of the parties. the market, both as an institution and as an analytical concept, is flawed. the flaws are ignored or hidden in contract jurisprudence with particular (unintended) consequences for people of color and other disenfranchised groups. a “neutral” free market system tolerates certain pockets of discrimination or discriminatory impact in contracting. these practices are, in turn, endorsed by the law in the name of private ordering and freedom of contract.10 courts and theorists have struggled to address the effect of identity in contract. the choices are represented as a set of trade-offs among moral, political, and practical goods, based on a general conflict between competing concerns about autonomy and social welfare. legal protections cut both ways. legal rules that protect vulnerable parties can address vast disparities in bargaining power. these rules redistribute power by lending the power of the state to some of its most disadvantaged citizens. at the same time, the legal doctrines that police contract bargains often employ harmful stereotypes, seemingly justifying intervention in terms of the ignorance, incapacity, intellectual deficiency, or lack of will power of the protected party. in this political struggle, oppositional forces may employ a rhetorical strategy that turns remedial action or constraints on overreaching or predation into “special protection” for people of color or white women. the law can cast the “victim” as “not only ignorant, incapable, or dishonest, but also advantaged—perhaps even unduly advantaged.”11 in the end, the redistribution of power to the powerless, cast in terms of the characteristics which make them marginal, works to maintain the hierarchical differentiation between blacks and whites and women and men.12 the dilemma is thus how to redistribute power without resorting to the cultural tropes and scripts that exist in a stratified society. critical legal theory provides a useful lens through which to consider this dilemma. at the heart of critical theory and jurisprudence is a belief that the law is rife with bias and subjectivity.13 critical legal theorists do not agree about the best ways to address such bias. some critical race theorists embrace contracting as a means of empowerment. for example, many feminist and lgbt legal scholars believe that individual liberty can be achieved by contracting around society’s default rules or restrictions (for example, contract can facilitate gay and lesbian relationships and parenting arrangements outside of the positive law).14 other critical legal scholars focus on contracts between members of the subordinated community and members of the dominant society, expressing concern about the limited bargaining power of most people of color and other historically disadvantaged groups. most law school contracts classes feature the dominant economic paradigm of transactional law, disregarding critical legal theory. we cannot rely on specialty or seminar courses to raise the difficult issues of race, ethnicity, gender, sex, disability—characteristics that mark people or communities as “other”—and make up for their absence in traditional first-year course materials.15 indeed, doing so 9 lorraine bannai & anne enquist, (un)examined assumptions and (un)intended messages: teaching students to recognize bias in legal analysis and language, 27 seattle u. l. rev. 1, 23 (2003). 10 see, e.g., kastely, supra note 2, at 293–94 (introducing the idea that objectivity in law centered on a privileged white male perspective). 11 dorothy a. brown, critical race theory: cases, materials and problems 293–94 (2003). 12 the same debate exists in the context of affirmative action programs. the perpetuation of negative stereotypes about people of color is precisely one of the justifications conservatives offer for strict scrutiny of affirmative action policies. see, e.g., grutter v. bollinger, 539 u.s. 306, 394–95 (2003) (kennedy, j., dissenting); see generally joshua p. thompson & damien m. schiff, divisive diversity at the university of texas: an opportunity for the supreme court to overturn its flawed decision in grutter, 15 tex. rev. l. & pol. 437, 470 (2011). 13 see generally james boyle, the politics of reason: critical legal theory and local social thought, 133 u. pa. l. rev. 685, 706 (1985). 14 see, e.g., martha m. ertman, contractual purgatory for sexual marginorities: not heaven, but not hell either, 73 denv. u. l. rev. 1107, 1137–42, 1154 (1996); howard fink & june carbone, between private ordering and public fiat: a new paradigm for family law decision-making, 5 j.l. & fam. stud. 1, 3 (2003). 15 cheryl l. wade, attempting to discuss race in business and corporate law courses and seminars, 77 st. john’s l. rev. 901, 905 (2003); see also susan bisom-rapp, contextualizing the debate: how feminist and critical race scholarship can 2013 columbia journal of race and law 27 reinforces the message that such concerns are at best marginal and at worst irrelevant and a waste of time that should be spent on “black letter law.” in the early stages of law school, students do not know what to do with their own beliefs and information-filtering systems as they read cases. they certainly come to law school with values and beliefs about how the law can impact social and political issues, but they do not necessarily know how to use those beliefs effectively in their legal analysis. often, the use of these pre-existing beliefs is minimized in class, in many casebooks, and certainly in study aids (including hornbooks and commercial outlines). this article addresses the importance of incorporating discussions about identity in the first-year core curriculum. it offers specific materials and techniques for doing this in a contracts class, with emphasis on the necessity and the value of grounding theoretical analysis squarely in the instruction students receive in legal reasoning. the article proposes that issues of identity should be incorporated into the classroom not only when the parties in the cases are people of color, and not simply as a politically correct exercise, but pervasively throughout the semester; this incorporation will advance students’ legal reasoning skills and understanding of legal rules and doctrine. this approach should improve the law school experience for most students and produce better lawyers who are more capable of practicing law holistically. the article uses race as a starting point to talk about identity in the broader sense; the strategies proposed in the article, relating to teaching about the law’s effects on people of color, can also be used with different groups. the article highlights the competing values critical race theorists grapple with in challenging race neutrality and the ways to use this debate to broaden the classroom discussion to consider the relevance of identity in any legal regime. specifically, the article examines the effects of various race-neutral contract law doctrines on people of color and their ability (or inability) to empower themselves through the longstanding practices and legal institution of contracting. part two provides a brief overview of critical race theory and discusses how and why aspects of critical race theory should be taught explicitly in the mainstream curriculum. specifically, this part highlights three distinct features of critical race theory that can be used as a starting point for law teachers to incorporate issues precipitated by race into the mainstream curriculum. part three makes specific suggestions for teaching about racial inequality in contracting. using the three features of critical race theory described in part two, part three suggests that race theory can and should be raised throughout the course when teaching the race-neutral doctrine, despite the courts’ silence on these issues in most cases. specifically, this part identifies various contracting issues that tend to be impacted by the race of the parties, and suggests cases in these doctrinal areas that can provide a useful backdrop for discussing the effects that race can have on contracting. for each doctrinal area, the article poses thought questions to push forward the class’s thinking about these issues and to highlight the impacts of the doctrine on some people of color. the overarching question presented by each of these doctrinal areas is what role race should play in legal analysis. in the broadest terms, the article addresses the potential power of the relationship between skills and theory and the ways in which legal reasoning can elevate general race theory from social science to legal persuasion.16 the article focuses on developing students’ ability to see what may appear to be a inform the teaching of employment discrimination law, 44 j. legal educ. 366, 368 (1994) (discussing the message sent to law students by the exclusion of differing perspectives, namely, that the interests of women and people of color are irrelevant to the law, or at least that these issues belong only in specific courses which are rarely taken by white male students). 16 considerations of social science deepen students’ understanding of legal doctrine and thus give them the ability to make more complete, persuasive, and nuanced arguments. legal theory should not be divorced from the social sciences, as at their best, courts rely on the latter discipline in making law, determining facts, and providing context for their decisions. see john monahan & laurens walker, judicial use of social science research, 15 law & hum. behav. 571, 571 (1991). 28 racial inequality in contracting vol. 3:1 narrow legal problem in a broader social and political context. it highlights ways for courts, parties, and students to strategically incorporate race theory in articulating arguments. the suggested questions in part three are meant to encourage students to identify underlying premises and implicit assumptions reflected in the law, and to develop awareness of their own and alternative theories and perspectives and their implications for law and lawyering. one goal is to get students to bring what they already know about social mores, cultural values, and historical perspectives to bear in the class discussion, making the cases more “real” and students more passionate, more analytic, and more confident. ii. critical race theory as a backdrop inspired by the civil rights, anti-war, and student movements in the late 1960s, the critical legal studies (cls) movement developed as a response by concerned legal academics to the disparate treatment of groups historically marginalized by the law.17 fundamentally, critical legal scholars challenged the assumption of determinacy—a predictable legal outcome—in classic liberal jurisprudence. the “crits,” as they are known, “set out to ‘deconstruct,’ and thus destroy, the myth that law and legal institutions are separate from ordinary political debate.”18 before the advent of critical jurisprudence, the traditional legal view was that the law is an “objective arbiter of social conflict” free from the influence of politics or political choices.19 this “formalist” and “objective” approach to lawmaking was criticized for failing to recognize the aspects of human choice, bias, and subjectivity that inherently inform choices about the law and its application to peoples’ lives.20 critical race theory (crt) developed during that time out of a dialectical engagement with both liberal discourse on race and the emerging cls discourse of the time.21 the crt school manifests at least three broad distinctive features that can be used to frame issues in the core curriculum: (1) a commitment to broadening the scope of discussion on what justice require; (2) a commitment to identifying and actively including marginalized voices in legal discourse; and (3) a recognition of the central and often explicit assumption that racism is still deeply rooted in our society and far more entrenched than what both the legal discourse and society at large acknowledge.22 while many critical race theorists discuss various additional crt features or frame crt issues differently, the three focused upon here are chosen as particularly pertinent to teaching about racial inequality in contract law. 17 richard a. posner, frontiers of legal theory 13 (2004). for an overview of the history of critical legal studies, see generally roberto mangabeira unger, the critical legal studies movement, 96 harv. l. rev. 561 (1983); mark kelman, a guide to critical legal studies (1987); mark tushnet, critical legal studies: a political history, 100 yale l.j. 1515 (1991). 18 robert e. scott, chaos theory and the justice paradox, 35 wm. & mary l. rev. 338, 345 (1994). 19 id. 20 unger, supra note 17, at 570. contrary to the belief that the law was a set of established principles, cls theorists characterized the law as a series of principles and counter-principles. for instance, while the first principle in contract law is the freedom to contract, the counter-principle is that the freedom to contract is not absolute, especially when it conflicts with social policies or other values deemed essential to the well-being of the family, community, or society. id. at 620. for that reason, critical legal theorists attacked the traditional “rights” approach of liberal legal theorists seeking equality under the law. for many cls scholars, the emphasis on rights obscured the actual conflicts that underlie how rights are decided, applied, and enforced, and the focus on rights as a vehicle for justice and equality simply reified the existing judicial apparatus and its values. tushnet, supra note 17, at 1526. the criticism of rights-based jurisprudence alienated many members of the cls movement, including many scholars of color, feminist scholars, and academics fighting for rights in areas such as gender, racial, and sexual equality. for many, criticism of a rights discourse neglected to recognize that people of color and women had successfully used the language of legal rights to effect change in the civil rights and women’s rights movements. athena d. mutua, the rise, development and future directions of critical race theory and related scholarship, 84 denv. u. l. rev. 329, 348 (2006). soon after clashes with cls scholars at the critical legal studies conferences in 1985 and 1987, members of the critical race theory group within cls left the group. id. similar fragmentation happened with feminist legal scholars, scholars of other ethnic minorities, and lesbian and gay rights scholars. 21 kimberlé williams crenshaw, the first decade: critical reflections, or “a foot in the closing door,” 49 u.c.l.a. l. rev. 1343, 1343 (2002). 22 jurisprudence: classical and contemporary: from natural law to postmodernism 616–19 (richard haman, jr. et al. eds., 2d ed. 2002) [hereinafter jurisprudence]. 2013 columbia journal of race and law 29 in an attempt to broaden the dialogue on justice, critical race theorists “articulate concerns that may have been ignored or marginalized by the dominant discourse; call into question concepts that seem otherwise immune from scrutiny; and suggest resolutions that are frequently at odds with the prevailing demands of convention or fashion.”23 crt scholarship also calls for modifying the form of jurisprudential dialogue to accommodate marginalized voices.24 according to most critical race theorists, conventional legal discourse has been limited in ways that tend to mute voices on the margins—voices that often include racial minorities.25 accordingly, many critical race theorists have emphasized the need for interdisciplinary studies to challenge and expand the sense of what counts as specifically legal discourse, as well as the need to create and promote new modes of discourse.26 finally, a simple but central working assumption of nearly all crt scholars is the belief that racism is much more common than most people think.27 according to this view, racism is “ordinary, not aberrational.” in fact, for many crt scholars it is evident that racism is “[s]o deeply embedded that it is practically invisible, like the air,” and that, accordingly, the system of white ascendancy and dominance will only give way to “exceptionally diligent efforts” which will entail “real costs.”28 these “costs” include the loss of white privileges that the legal system has continued to support, if not de jure then at least de facto. the following section sets forth specific ways to use these three principles to incorporate issues surrounding race and racial inequality into the first year contracts class. iii. the effect of race on various commonplace contracting issues because of the supposed race-neutrality of the law, when writing opinions, judges often omit identifying specific characteristics of the parties involved in a contractual dispute.29 details sure to have influenced the judge’s legal reasoning and analysis—such as the relationship between the parties, or the age, race, gender, or class of one or both of the parties—are conspicuously missing, leaving readers to hypothesize or fill in the gaps.30 when judges omit the race, the presumption is usually that all the parties are white.31 the result is the “invisibility” of african american or black parties in mainstream 23 id. at 616. not surprisingly, the crt movement has invoked significant controversy and is subject to ongoing criticism. see douglas e. litowitz, some critical thoughts on critical race theory, 72 notre dame l. rev. 503, 513–29 (1997) (critiquing what he views as crt’s mischaracterization of liberalism, its narcissism in focusing on personal anecdotes that may have little legal basis, its emphasis on storytelling which brings it away from legal doctrine, its reliance on what litowitz sees as the implausibility of the interest-convergence theory, and its notions of insiders and outsiders). judge posner has harshly criticized crt, in part claiming that its reliance on narrative hurts the reputation of legal academics of color. richard a. posner, the skin trade, the new republic oct. 13, 1997, at 40 (book review) (claiming that “[w]hat is most arresting about critical race theory is that . . . it turns its back on the western tradition of rational inquiry, forswearing analysis for narrative. rather than marshal logical arguments and empirical data, critical race theorists tell stories—fictional, science-fictional, quasi-fictional, autobiographical, anecdotal—designed to expose the pervasive and debilitating racism of america today. by repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites.”). 24 jurisprudence, supra note 22, at 616. 25 see, e.g., mark kelman, a guide to critical legal studies (1987); tushnet, supra note 17; unger, supra note 17. 26 jurisprudence, supra note 22, at 617–18. 27 id. for an in-depth discussion of the on-going prevalence of institutional racism, see ian f. haney lopez, institutional racism: judicial conduct and a new theory of racial discrimination, 109 yale l. j. 1717 (2000). 28 id. 29 kastely, supra note 2, at 283 (noting judge posner’s failure to explicitly mention race in wassell v. adams, 865 f.2d 849 (7th cir. 1989) (posner, j.), although kastely translates his coded language). 30 id. at 286 (discussing the requirement of reading cases with certain racist and sexist presumptions in order to understand a judge’s coded language). 31 id. at 291 (noting that in doe v. dominion bank, 795 f. supp. 456 (d.d.c. 1991), rev'd, 963 f.2d 1552 (d.c. cir. 1992), “[b]y not coding the race of the neighborhood as black, judge hogan signaled it as white—or partly white . . .” and explaining that where parties are black, the judge will use coded language to signal this to the reader). 30 racial inequality in contracting vol. 3:1 commercial contracts, which places “constraints on both the abilities of nonwhites and whites to see black people as businesspeople who engage in commercial transactions.”32 despite the court’s silence about certain characteristics of the parties, race, gender, class, and sexuality do have the potential to play an unspoken role in contracting and in the court’s reasoning in some cases. there are many opportunities to raise issues relating to identity, even when such characteristics about the parties are not readily apparent in the case. indeed, with generally only a few cases in any given casebook involving african american parties, professors must create opportunities to bring issues of race into the classroom. in most cases, the parties’ race is unknown and not at issue. but it is possible (and advisable) to periodically interject discussions surrounding race, even where not raised in the case. one way to do this is to simply ask whether it would make a difference to the outcome of the case, or to ask how the judge or students may perceive the parties in the case, if we knew the race of one or both of the parties. this section will provide tools to use the three core principles of critical race theory articulated in section ii to promote creative, reconstructive thinking on how contract law should evolve in order to advance racial equality and the just economic empowerment of racial minorities. specifically, this section examines various contracting issues that arise in the first year contracts curriculum that tend to be impacted by the race or other personal characteristics of the parties. these areas include price disparities in commercial contracts (relating to the doctrines of consideration and unconscionability) (see infra part a), issues of assent and the use of the objective test (relating to the doctrines of offer, acceptance, and contract interpretation, among other things) (see infra part b), issues surrounding the enforcement of contracts involving alternative reproduction technologies (relating to the doctrine of public policy) (see infra part c), and issues about involuntary servitude (relating to specific enforcement and negative injunctions in employment contracts) (see infra part d). these various contracting scenarios raise complex and nuanced issues surrounding the issue of whether contract law has helped to perpetuate racial discrimination and the disempowerment of racial minorities or to minimize it. since these core contracting issues arise throughout every casebook, they provide ample opportunities to raise issues related to the role of race in legal analysis throughout the course, even where these issues are not highlighted in the cases. some of the issues arise repeatedly or in various places throughout the course, while other suggestions are relevant to particular doctrines typically covered in a single class period. but all the suggestions have an overarching theme regarding the effect of race-neutral contract doctrine on people of color and the relevance of race to the legal analysis. the subsections that follow set forth arguments and counterarguments regarding the relevance of race to the legal analysis, providing tools for students to use in crafting legal arguments. these arguments are followed by specific questions that can be posed to stimulate the conversation. the subsections describe ways in which to discuss the race-based issues associated with the doctrine that are meant to enhance, rather than interfere with, teaching the doctrine. a. racial discrimination in the marketplace a basic tenet of contract law is that courts will not inquire into the adequacy of consideration. this notion presumes that the parties know better than the courts how they value the goods and services they are bargaining for. this foundation of the doctrine of consideration is based on neo-classical economic assumptions that people act rationally and in their own best interest, that people and resources are freely movable, and that there are no artificial restrictions on entry into the marketplace. however, 32 angela mae kupenda, making traditional courses more inclusive: confessions of an african american female professor who attempted to crash all the barriers at once, 31 u.s.f. l. rev. 975, 983 (1997). indeed, when the race of the parties is explicit in an opinion, it appears that disproportionately the case involves a contract defense such as unconscionability, and the african american party is portrayed as a victim being taken advantage of by the dominant white party. inclusion of these defenses cases in a contracts casebook therefore does not ameliorate the problem of the invisibility of african americans as actors in the mainstream commercial marketplace. 2013 columbia journal of race and law 31 studies show that these presumptions are not always correct.33 in some industries, pricing in the united states tends to vary according to the race, class, and gender of the consumer. systems of disparate pricing can result from isolation from wider markets, traditional practice, or discrimination, among other things. how should contract law account for class, gender, or race-based price disparities, if at all? 1. disparate pricing “consumer racial profiling” (crp) is a term used to describe “differential treatment of consumers based on race or ethnicity that constitutes a denial or degradation in the product or service offered to the consumer.”34 in the retail context crp manifests as outright confrontation such as removing customers of color from the store or the use of racial epithets, or more covert forms of harassment such as surveillance, slow or rude service, complete neglect, or being required to pre-pay.35 there are a limited number of empirical studies that assess racial discrimination in the marketplace, outside of the housing and employment markets. one study of retail car negotiations sent testers of different races and genders into car dealerships to buy a new car using the same bargaining strategy.36 the study revealed that black men paid more than twice the markup than white men, and that black women had to pay more than three times the markup than white men.37 the study also revealed several forms of non-price discrimination based on race, such as: the steering of testers to salespersons of their own race or gender; testers being asked different types of questions (e.g. about occupation and financing); and salespersons disclosing different qualities of the car or employing different sales tactics.38 for example, salespersons asked black female testers more often about their occupation than white male testers, and they asked black male testers less often than white male testers if they wanted to test drive the car.39 salespersons also offered black male testers the sticker price as an initial offer more often than they did with white male testers, and were less willing to disclose to black testers what the dealer paid the car manufacturer for the car.40 federal court cases also provide some insight into the pervasiveness of racial discrimination in the consumer market. cases show that consumers of color are denied entry to hotels, are refused taxi service, and wait longer than white customers for service in restaurants.41 in one case, the fourth circuit decided that the plaintiff had made a prima facie case of discrimination when it presented evidence that a staples had accepted the out-of-state checks of white customers as payment for goods but refused to accept the out-of-state check of the african american plaintiff because of his race.42 these studies have begun to debunk the neoliberal theory that competition will eliminate, or at least make unprofitable, racial discrimination in the marketplace. the neoclassical theory purports that: rational market participants responding to market forces should . . . eliminate irrational racial discrimination. competitive markets . . . punish those market actors indulging in 33 see, e.g., larry a. dimatteo, penalties as rational response to bargaining irrationality, 2006 mich. st. l. rev. 883, 920 (2006) (discussing the role of irrationality in the negotiation of contracts). 34 anne-marie g. harris, shopping while black, applying 42 u.s.c. § 1981 to cases of consumer racial profiling, 23 b.c. third world l.j. 1, 4 (2003). 35 id. at 4. 36 ian ayers, fair driving: gender and race discrimination in retail car negotiations, 104 harv. l. rev. 817, 819 (1991) [hereinafter, ayers, fair driving]. 37 id. at 819, 829. a follow-up study revealed that black male testers were actually charged higher prices than black female testers. ian ayers, further evidence of discrimination in new car negotiations and estimates of it cause, 94 mich. l. rev. 109, 110 (1995) [hereinafter, ayers, further evidence]. 38 ayers, fair driving, supra note 36, at 833–36. 39 id. at 834. 40 id. at 835. 41 hila keren, “we insist! freedom now”: does contract doctrine have anything constitutional to say?, 11 mich. j. race & l. 133, 136 (2005). 42 williams v. staples, inc., 372 f.3d 662, 668 (4th cir. 2004). 32 racial inequality in contracting vol. 3:1 racism . . . because economically motivated, perfectly informed actors . . . seize arbitrary opportunities and profit advantages left behind by racist participants.43 the free-market system operates under the questionable premise that people have access to complete information about a good or service and have the freedom to choose what products they buy or sell. in fact, consumers often do not have access to all the information they need to bargain effectively. for example, a consumer federation of america survey found that thirty-seven percent of those who responded did not know that a sticker price on a car was negotiable, and further, that sixtyone percent of blacks versus thirty-one percent of whites did not believe the sticker price on a car to be negotiable.44 civil rights law has acknowledged the disconnect between neoclassical economic theory and the social and economic realities of racism. several laws have been enacted to remediate the effects of racial discrimination in the employment, housing, and public accommodation markets and in credit transactions, but none specifically address discrimination in the retail context. title ii of the civil rights act of 1964 specifically prohibits discrimination on the basis of race in places of public accommodation. however, retail establishments are absent from the list of “public accommodations” covered by the statute, at least by interpreting case law.45 section 1981 of the civil rights act of 1866 provides that all persons have the same right to make and enforce contracts as white citizens. the legislation was enacted to address the ways in which whites continued to treat formerly enslaved people after the civil war, including “physical violence, price fixing, lifetime contracts, and exorbitant rent and food charges that were equivalent to any wages the former slaves might earn.”46 however, the courts have narrowly interpreted section 1981 protections and “routinely dismiss . . . claims where defendants’ behavior degrades—but does not completely deny—the goods or services plaintiffs sought to purchase.”47 2. contracts solutions absent federal legislation regulating discrimination in retail transactions, what role can and should the courts and common law contracts doctrine play in addressing racial disparities and inequality in the marketplace? the common law of contracts holds much promise as an avenue through which jurists can successfully develop and enforce legal norms prohibiting racial discrimination.48 the promise of contract law lies both in its relative “flexibility” in the courts (as compared to statutory antidiscrimination law) and in the structural responsiveness of contract common law both to the evolution of public policy norms and, more generally, to evolving community norms. contract law has evolved in a manner that has been both responsive to and constrained by community norms of decency, fairness, and reasonableness,49 and it can and should evolve towards the recognition of a norm prohibiting racial discrimination in contracting processes. this evolution can be accomplished with a shift in focus from individual weakness or vulnerability in a given transaction to structural inequalities. if students are invited to think not just in terms of the parties to a dispute but in terms of the groups of people represented in the suit, they begin to see structure. shifting the focus to structural inequalities requires analysis in some commercial transactions of the reasons for which african 43 steven ramirez, what we teach when we teach about race: the problem of law and pseudo-economics, 54 j. legal educ. 365, 366 (2004). 44 ayers, further evidence, supra note 37, at 140. 45 harris, supra note 36, at 23. 46 id. at 26 (quoting john hope franklin, the civil rights act of 1866 revisited, 41 hastings l.j. 1135, 1141 (1990)). 47 harris, supra note 34, at 37. 48 brown, supra note 11. 49 for an example of common law created to address public policy considerations, see wagenseller v. scottsdale memorial hosp., 147 ariz. 370, 378 (1985) (adopting the public policy exception to at-will employment, allowing employers to fire for good cause or no cause, but not for causes that violate public policy, such as failure to commit a crime). 2013 columbia journal of race and law 33 americans and latinos pay more than whites. these documented racial disparities arise from both discriminatory practices and overrepresentation of african americans and latinos in the lower income levels. commercial sellers are often free to charge higher prices in markets with limited competition, such as in lower income neighborhoods. where the market is limited, people have no choice but to bear the higher pricing. many attribute the pricing disparities to lack of information, but even with full information certain communities will still have no choice but to acquiesce to the higher pricing. altering this inequality cannot only occur on an individual consumer basis. rather, the fundamental structural inequalities that create vulnerable consumers must be altered. this alteration might require some degree of regulatory intervention but contract law can also play a role. the current legal construct generally looks at individuals, not structure, and the neo-classical underpinnings of contract law generally allow sellers to charge what the market will bear. when sellers charge women more for haircuts than men, it is argued that it is because women are willing to pay more. when credit card companies charge higher rates (and include exploitative terms) to poor communities, it is because the market, which is not competitive in those communities, will allow it. with either individual or classbased complaints, should courts take into account personal characteristics of the party such as race and ethnicity? are courts capable of fairly considering race in the context of structural inequalities that exist between members of that race or ethnicity and the dominant race or ethnic group without unfairly advantaging certain parties? perhaps inequalities can be addressed through the doctrine of consideration. core to analysis of issues of consideration are the motives of the parties. both parties must exhibit a bargain motive as opposed to a gratuitous motive. in arms length market exchanges, bargain motive is all but presumed. to challenge this presumption, ask the class whether pricing disparities among different communities are a result of rational economic behavior on the part of the consumers. is the choice between bargain or gratuitous motive a false choice? is economic behavior always driven by either autonomy, rationality, and efficiency or by generosity and charity? what else might drive and influence human behavior? to what extent do racial or class-based inequalities affect this analysis? because of the strong presumption that individuals with full capacity engaging in market transactions are acting rationally, consideration might be a difficult avenue through which to remedy price disparities. the unconscionability doctrine is the more likely avenue under which “unfair” contracting prices can be remedied because of its mission to invalidate grossly one-sided bargains. current doctrine requires focus on one party’s oppressive conduct, and/or the other party’s vulnerability in finding the terms of a contract inherently and grossly unfair.50 problematically, discussions about an individual party’s vulnerability often promotes raced reasoning in which the reader is encouraged to conflate social and economic marginalization with incompetence, lack of education, and an absence of savvy. in some cases, although race is not explicitly mentioned, racial messages are covertly conveyed through details given about a person.51 these details become raced, meaning that a person’s actions, possessions, and views are used to implicitly convey what race the person is.52 without any discussion of systemic, structural racism, the implication is that it is ultimately the complaining party’s own defects that necessitate the court’s protection. for example, in the leading unconscionability case, williams v. walker-thomas,53 ora lee williams, a black, single mother on welfare, was “protected” from her “poor judgment” in entering into a consumer contract with oppressive terms. students should be encouraged to examine the inherent judgments that come up about williams presumably because of her gender, race, class, and educational 50 see generally 8 williston on contracts § 18:10 (4th ed. 2012). 51 kastely, supra note 2, at 275. 52 id. 53 williams v. walker-thomas furniture co., 350 f.2d 445 (d.c. cir. 1965). 34 racial inequality in contracting vol. 3:1 background. williams’s characteristics as a black, single mother on welfare likely played into the court’s analysis of the power disparity between the parties that led to finding the contract unconscionable.54 judge skelly wright’s opinion in williams v. walker-thomas refers, among other things, to “appellant’s social worker” and williams’s “obvious education or lack of it.”55 while judge wright does not mention race directly, his reasoning in applying the unconscionability doctrine encourages the reader to rely on racial and class-based stereotypes about the vulnerability of poor, single, african american mothers who receive government aid. professor amy kastely explains: by failing to include further detail about the contracts between walker-thomas and williams and by resting instead on the vague and broadly associated listing of limited power, little knowledge, limited education, and lack of choice, judge wright's opinion allows—even invites—the reader to use raced tropes linking poverty, lack of education, single parenthood, and lack of capacity with black women and to disregard the connection between white racism and exploitative pricing and collection practices.56 professor kastely argues that in his majority opinion in walker thomas, judge wright failed to note the ways in which the evidence showed williams to be an intelligent, reliable, and reasonable decision-maker.57 similarly, professor muriel spence voices the concern that the stereotypes presented in walker-thomas run the risk of reifying problematic assumptions about williams’s race and class.58 she highlights certain stereotypes implicated by the case—in particular that african american women are “disproportionately on welfare, irresponsible with money and likely to raise large families as single parents”59 noting that, in fact, most people on welfare in the united states are not black.60 if courts are explicit about the role of racism and racial disparities in contracting, it will take the focus away from perceived deficiencies of individual contracting parties. in her article “making traditional courses more inclusive,” professor angela mae kupenda writes about her indecision to teach walker-thomas for fear that it does more harm than good. ultimately, professor kupenda decides that it is helpful to teach this case with a focus on how specific groups may be more affected by unconscionable contracts than others.61 focus on structure eliminates the need or inclination to make stereotypical judgments about poor people or people of color as actors in the marketplace. certainly, application of the unconscionability doctrine does not always involve issues of race. the real question is whether race is, and ought to be, a consideration in the framework of the legal doctrine being applied. a compelling argument could be made that the response should be completely excluding race from the discussion if it is not the material reason for the court’s decision. this is especially true where invoking race requires the court to make broad assumptions and perpetuate stereotypes. on the other hand, ignoring race, and in particular ignoring structural racial inequalities, in some cases may fail to get at the root of the problem. of course, racism in consumer contracts is an enormous problem to tackle in a class about consideration or unconscionability, and you cannot resolve the complex question of the role of contract law in correcting racial disparities. but you can certainly raise the issues when you teach the rules about adequacy of consideration. indeed, even where the parties in the cases you are teaching are not people of color, you can remind students of price disparities that exist in poor communities and highlight the 54 morant, supra note 3, at 899. 55 williams, 350 f.2d at 448–49. 56 kastely, supra note 2, at 306.   57 id. 58 muriel morisey spence, teaching williams v. walker-thomas furniture company, 3 temp. pol. & civ. rts. l. rev. 89, 90 (1994). 59 spence, supra note 58, at 90. 60 id. at 95. 61 kupenda, supra note 32, at 988. 2013 columbia journal of race and law 35 studies about racial price disparities. how, if at all, can contract law regulate these types of disparities? ask the class why normal market mechanisms may not cure the problem of pricing disparities and whether the government has a role in mediating disputes of value. revisit these issues when covering the doctrine of unconscionability. professors might ask students to what extent the protections provided by the doctrine of unconscionability address or resolve these issues. at a minimum, it will help them understand the contours and limits of the consideration and unconscionability doctrines, while simultaneously considering their real-world application. b. issues of assent and the use of the objective test other doctrinal areas ripe for illustrating racial implications are offer, acceptance, and contract interpretation, the application of each depending on the objective test. the objective theory, a cornerstone in liberal contract law, is reinforced by neo-classical economic theory and its assumptions about rationality and autonomy. the objective theory, together with the doctrines that tend especially to reinforce its intellectual, ethical, and legal legitimacy, operate functionally to conceal racial dimensions of contract law. in effect, the objective theory frequently, but erroneously, sends the message that while particular individuals may be racist, the law itself is race-neutral. professor amy kastely summarizes this argument eloquently: [t]he objective theory in contract law . . . [is] one instance, among many, in which race functions as a foundational element of legal doctrine. by featuring the understandings and expectations of privileged white men as the standard for contract interpretation, the objective theory establishes and maintains a white, class-privileged, male norm as the governing law of contractual obligation. and, by treating that standard as “normal” and “reasonable,” the objective theory treats anyone who has a different understanding or expectation as defective—ill-informed, lacking education and skill, or unreliable. it maintains hierarchies of race, class, and gender, while allowing people to believe that the law is not racist, class-biased, or sexist. indeed, in those instances where the law extends “special protection” to people of color and to white women, the law can be seen as generous and forgiving, and subordinated groups as not only ignorant, incapable, or dishonest, but also advantaged—perhaps even unduly advantaged.62 contract law is highly contextualized, and knowing the race, ethnicity, or cultural background of the parties and understanding the racial and cultural dynamics between them is often critical to analyzing issues of assent. a simple smirk or nod can make the difference between an acceptance and a refusal, and understanding the relationship between the parties can explain and often justify different interpretations of contract terms. despite the centrality of context to issues of assent, as if by tacit agreement, the doctrine has little awareness or discussion of issues of race, class, gender, etc. under the objective test, most courts will consider the relationship between the parties, any prior dealings between them, industry customs, and circumstances surrounding the agreement but not the social identity of the parties to the contract and the extent to which cultural and ethnic differences can affect the contracting process.63 factors such as ethnicity and national origin can play a major role in contract formation and interpretation.64 the unique experiences and vocabularies of different communities can affect individual business practices and therefore can affect the subjective intent of parties entering into a contract.65 for 62 kastely, supra note 2, at 293–94. 63 id. at 297–300 (arguing that the objective theory looks at reasonableness only from the white male perspective, which suggests that courts do not individualize their evaluation of reasonableness based on cultural differences and also pointing out that “[a]n original purpose of [objective theory] . . . was to enforce dominant norms as a way to encourage people to abandon minority beliefs and practices”). 64 nancy s. kim, reasonable expectations in sociocultural context, 45 wake forest l. rev. 641, 652 (2010). 65 trakman, supra note 7, at 1089. 36 racial inequality in contracting vol. 3:1 example, in a situation where the parties have reached an agreement on certain portions of a contract but not the entire contract, it is said that argentinian contracting parties will not treat the fully negotiated portions as finalized—the assumption is that each portion of the contract is subject to renegotiation until the time the entire contract is agreed upon.66 in germany, once a decision is made, it is considered unchangeable, regardless of the status of any formal written contract,67 whereas in japan, contracts are generally never perceived as final agreements but rather as agreements that may be renegotiated by either party at any time.68 in france, eye contact is frequent and intense, and can affect a party’s understanding of assent.69 in some cultures, “yes” can mean anything from “i agree,” to “maybe,” to “i hope you can tell from my lack of enthusiasm that i really mean ‘no.’”70 for example, in honduras, mexico, and other latin american countries, the desire to please means that business people might tell the other party what they want to hear, and couch their disagreement in generally positive terms. thus, “maybe” or “we will see” generally means “no,” and a verbal “yes” may be given out of politeness and may not be considered binding.71 similarly, in indonesia, malaysia, and other asian countries, it is considered impolite to disagree with someone, which may make it difficult for a westerner to distinguish between a polite “yes” (which really means “no”) and an actual “yes.”72 indeed, the indonesian language includes at least twelve ways to say no and many ways to say, “i’m saying yes but i mean no.”73 in addition, indonesians often pause respectfully for up to fifteen seconds to ponder what was said, which westerners might misinterpret as acceptance or rejection.74 maybe because of these nuances, a deal is generally not considered complete until the paperwork is signed.75 relatedly, in hong kong, the word “yes” does not necessarily mean “i agree with you,” but rather, “i heard you,” potentially creating confusion about assent.76 the context of negotiations can also affect reasonable perceptions of assent. in greece, for example, business is often conducted in a coffee house or taverna,77 whereas such an informal setting might prevent negotiations from being perceived as final in other cultures. culture can also affect contract interpretation. for example, in germany, products may be delivered late without any explanation or apology.78 thus, based on custom, a seemingly precise contract delivery term might be interpreted as being loose rather than firm, and a “late delivery” might be seen as actually conforming to the contract. there is also an increasing awareness of the effects that race may have on an individual’s experience and thus on a given party’s judgment and perception of what is “reasonable.” 79 professor patricia williams aptly describes how race (and gender) inform everyday transactions and how in an effort to achieve the same contracting goals, members of different groups may act completely differently, 66 terri morrison et al., kiss, bow, or shake hands: how to do business in sixty countries 124 (1994). 67 id. at 128. 68 id. at 205. 69 id. at 123. 70 id. at 222. 71 morrison et al., supra note 66, at 150. 72 id. at 179, 222. 73 id. at 179. 74 id. at 180–81. 75 id. at 180. 76 morrison et al., supra note 66, at 157. 77 id. at 138. 78 id. at 130. 79 ruth l. gana, which “self”? race and gender in the right to self-determination as a prerequisite to the right to development, 14 wisc. int’l l.j. 133, 140 (1995) (discussing, for example, how the issues surrounding anita hill and her testimony against clarence thomas’s confirmation as a supreme court justice brought to light the question of the “reasonable black woman”). 2013 columbia journal of race and law 37 although all actions are based on “reasonable” assumptions.80 professor williams describes, from her perspective as a black woman, the experience of renting an apartment, and compares it to the parallel experience of her white male colleague.81 she explains how, in their common quest to be trusted and respected by their new landlords, she insisted on a formal, signed contract, while her colleague gave a $900 deposit to strangers without signing a lease, asking for a receipt, or even receiving a key.82 while professor williams’s colleague, a white male attorney, may feel the need to make himself appear trusting and approachable, as a black woman who grew up in a neighborhood where black families were routinely refused leases and required to pay in cash, it was important for professor williams “to show that [she could] speak the language of lease” in order to build trust in her business transactions.83 the question then becomes how best to weigh and apply racial and cultural differences.84 should such differences be relevant to the legal analysis at all? contract law’s supposedly neutral objective test may perpetuate inequality by ignoring important cultural factors, especially when the “reasonable person” is actually construed as the “reasonable white man.”85 on the other hand, more culturally sensitive theories increase judicial discretion and may be seen as unfairly shifting bargaining power to the “outsider” party.86 some have advocated a “reasonable woman” standard or a standard based on the “reasonable black woman” to help the court understand a party’s “outsider” position.87 discussions surrounding such questions hit their peak during and in the years following the clarence thomas/anita hill controversy, stemming from the question of whether then-nominee thomas’s comments would have been offensive to a reasonable woman or a reasonable black woman. however, such modified standards have been criticized as being difficult to apply and as improperly essentializing women and black women.88 80 patricia j. williams, alchemical notes: reconstructing ideals from deconstructed rights, 22 harv. c.r.-c.l. l. rev. 401, 406–08 (1987); see also kastely, supra note 2, at 296. 81 id. at 406–08. 82 id. 83 id. at 407. gender can also have an effect on assent and contract interpretation in some cases. gendered perceptions have been studied most fully in cases involving sexual harassment and other situations involving violence against women. much has been written, for example, about how women experience allegations of sexual harassment in the workplace differently from men. for example, a woman might feel that pornography or sexually explicit jokes in the workplace constitute sexual harassment, even though her reasonable male coworkers are not upset by the same material. naomi r. cahn, the looseness of legal language: the reasonable woman standard in theory and in practice, 77 cornell l. rev 1398, 1409 (1992) (describing the effective use of a “reasonable woman” standard in sexual harassment and battered woman syndrome cases). similar gendered differences may also exist in perceptions in contracting. similarly, a person’s religion and physical and mental ability undoubtedly also play a role in the way that any given individual approaches a contract. for example, under some muslim law, where a party breaches a contract, there is a concept similar to the excuses of duress, fraud, and unconscionability. jacqueline mccormack, commercial contracts in muslim countries of the middle east: a comparison with the united states, 37 int’l j. of legal info. 1, 11, 25–26 (2009) (describing excuses for non-performance in islamic contract law). however, rather than treat these concepts as excuses for the breaching party, there is a concept of “equality and balance between the parties, rather than fairness.” id. at 11. fundamentally, islam is a religion based on laws, whereas christianity, the religion most influential to american law, has arguably little effect on commercial transactions. id. at 28. thus, members of certain muslim groups may see their role in a contract, and the ways that it binds them, very differently from contracting parties of other faiths. 84 trakman, supra note 7, at 1091. 85 id. at 1086–87. 86 daniel d. barnhizer, context as power: defining the field of battle for advantage in contractual interactions, 45 wake forest l. rev. 607, 608–09 (2010) (arguing that high-context contract law approaches are attempts to balance power between the apparently strong and the apparently weak parties). 87 id. at 615–16. 88 for example, some low-income women questioned the fact that a black woman with professor hill's background would be powerless against oppressive conduct. see generally cornel west, black leadership and the pitfalls of racial reasoning, in race-ing justice, en-gendering power: essays on the anita hill, clarence thomas, and the construction of social reality (toni morrison ed., 1992) (describing the effects of guilt and closed-ranks mentality on reactions within the black community to criticisms of clarence thomas during the confirmation hearings). 38 racial inequality in contracting vol. 3:1 this tension between competing values can be seen in acedo v. state department of public welfare.89 in this case, an unmarried eighteen-year-old woman voluntarily signed a contract in which she agreed to give up her six-month-old baby for adoption.90 acedo had been advised that no adoption would be final until six months after the adoption petition was filed.91 she believed, based on this information, that she had six months to change her mind about the adoption.92 about two weeks after signing the contract and three days after the baby had been placed with a family, the young mother attempted to revoke her consent based on her understanding of the contract.93 when she was told she had relinquished her right to change her mind, she sued, claiming there was no manifestation of mutual assent and no enforceable contract.94 the court held that the contract language was clear and unambiguous and the only reasonable—objectively correct—interpretation was that acedo unconditionally relinquished her right to the baby.95 a reasonable person observing acedo’s words and conduct would have believed she manifested her assent to such relinquishment by reading and signing the unambiguous contract.96 how can assumptions of autonomy and rationality (and thus assumptions of assent) be challenged in this case? using neoclassical economic principles, the court held acedo to the background, knowledge, and life experience of a “reasonable person,” and assumed that she was acting rationally, in her own best interest, and with perfect information when she signed the contract. despite acedo’s young age, she was not a minor. instead, the court reasoned that she was a high school graduate of normal intelligence, who voluntarily signed the contract after having full opportunity to read it.97 this perspective honors the stability of the contract and, accordingly, stability of the adoption process. the court did not explicitly mention, as relevant factors, acedo’s race, class, gender, or any other personal characteristics that might have affected her understanding of the contract. would it be legitimate to challenge the assumption that acedo was able to protect her best interests? what role might race play in answering that question? it is possible there were some racial differences that contributed to the bargaining dynamic and cultural differences that contributed to acedo’s understanding of the terms. for example, given the location of the case, arizona, and the plaintiff’s name, herlinda acedo, it would be reasonable to assume that the plaintiff and her family were mexican-americans. we know that many mexican americans, even those who were born in the united states or who are permanent residents, are politically and economically vulnerable.98 we can ask students to consider acedo’s family structure and cultural tradition that might make children a gift but unwed pregnancy a shame. statistics show that hispanic girls become pregnant at a rate more than twice as high as that of white, non-hispanic girls between the ages of fifteen and nineteen.99 if acedo was a recent immigrant from mexico, or generally had a different experience with, and relationship to, pregnancy from that of a middle class, white teenager or young woman, then mutual assent is less obvious. understanding the racial dynamics in the case, the cultural perspective, and the political context becomes crucial to understanding the court’s perspective and whether there was or should be an enforceable contract. on the other hand, making race relevant to the question of assent might lead to unintended harmful consequences for parties of color in future cases. protecting vulnerable parties based in part on 89 acedo v. state dep’t of pub. welfare, 513 p.2d 1350 (1973). 90 id. at 1351. 91 id. 92 id. 93 id. 94 acedo, 513 p.2d at 1351. 95 id. 96 id. 97 id. 98 kevin r. johnson, civil rights and immigration: challenges for the latino community in the twenty-first century, 8 la raza l.j. 42, 86 (1995) (discussing discrimination against undocumented mexican immigrants as well as “documented” mexican americans). 99 brady e. hamilton, joyce a. martin & stephanie j. ventura, births: preliminary data for 2010, 60 nat’l vital stat. rep. 1, 9–10 (2011), available at http://www.cdc.gov/nchs/data/nvsr/nvsr60/nvsr60_02.pdf. 2013 columbia journal of race and law 39 their identities could lead to reluctance to contract with minorities. although the party of color in the particular case at hand may benefit from court intervention, in the long term, parties who appear to be vulnerable, financially and otherwise, may suffer if sellers are discouraged from doing business with them because of the contract’s lack of reliability, thereby paving the way for even harsher contract terms with the diminished number of sellers who are willing to take risks on such buyers. ask the class whether racial and cultural differences might be relevant to how a party reads and interprets a contract. if so, to what extent should courts take into account those differences in their legal reasoning? are courts equipped with the knowledge, insight, and objectivity to identify such racial differences and to evaluate the effect those differences can have on reasonable perceptions regarding assent without resorting to stereotypes? be sure not to limit this discussion to the one case involving a party of color. in classes about offer and acceptance in which the race of the parties in the assigned cases is unclear or white, you probably already discuss the fact that perceptions of intent depend on whether the contracting actor is engaging in an arms-length bargain; follow up such discussions with a question about the effect race or cultural difference might have on that intent. discussions about race and assent can continue naturally into analysis of the contract defenses, which generally question the voluntariness of a party’s assent. analysis of the racial dynamics can be equally important in understanding the limits to freedom of contract and to fully understanding the contours of the defenses available. c. alternative reproductive technology contracts and public policy: special issues facing women and families of color many contracts casebooks use cases involving surrogacy contracts to illustrate the rules and issues relating to the public policy defense. public policy issues about surrogacy or other alternative reproductive technology (art) tend to focus on the problem that surrogacy (or other art) contracts can circumvent the requirements of a best-interest-of-the-child analysis; the concern about exploitation of the surrogate, who typically has less bargaining power than the intended parents; concerns about the denigration of human dignity when decisions about custody of a child are made through contract. for example, in in re baby m,100 the court suggests that the decision to act as the surrogate is generally uninformed (since the surrogate cannot know the strength of the bond she will form with the baby) and not truly voluntary (because of the monetary incentive). there is also a concern for class privilege, when surrogacy is used by people with money at the expense of the poor, and gender privilege, when the man is treated as a natural parent but the woman giving birth is treated merely as a service provider. often left out of the discussion, however, are the particular effects of surrogacy on people of color. competing narratives can and should focus on families of color. though these families are perhaps not the dominant or primary consumers of the technology, their interests are still relevant. women of color, particularly african american women, have a higher rate of infertility than white women despite a popular myth that african american women are overly fertile.101 accordingly, contracting and contract law may be used to improve the welfare of some african american women. however, women of color are increasingly more likely to act as surrogates102 and therefore more likely to be exploited through the surrogacy process. in addition, market rhetoric has resulted in race-based disparities in the pricing of genetic material, raising concerns about the net benefits of enforcing surrogacy contracts.103 how should the law deal with these competing values and concerns? 100 537 a.2d 1227 (n.j. 1988). 101 june carbone, if i say “yes” to regulation today, will you still respect me in the morning?, 76 geo. wash. l. rev. 1747, 1749 (2008) (“african americans have higher fertility rates at every age until twenty-five, and have lower fertility rates at every age thereafter.”). 102 kimberly d. krawiec, price and pretense in the baby market, in baby markets: money and the new politics of creating families 41, 46 (michele bratcher goodwin ed., 2010). 103 josé gabilondo, heterosexuality as a prenatal social problem: why parents and courts have a taste for heterosexuality, in baby markets: money and the new politics of creating families 118, 121 (michele bratcher goodwin ed., 2010). 40 racial inequality in contracting vol. 3:1 this section suggests ways to highlight such disparities in the course of teaching the class on the public policy defense or any class involving surrogacy or other art contracts. the section discusses whether such issues about race should be relevant to whether a contract violates public policy and it also suggests ways in which students can incorporate these issues into their legal reasoning about public policy while simultaneously enhancing their overall understanding of the goals and effects of the public policy doctrine. in teaching these issues, you can thread back to earlier discussions about the ways in which a free market based on race-neutral principles can have harmful effects on people of color in contracting and the role race should play in legal analysis generally. 1. changing the narrative recent societal trends have taught women that they must reach emotional maturity and gain financial independence before having children, meaning that many women begin trying to conceive well after fertility has begun to decline.104 the current average age of american mothers giving birth to their first child is twenty-five years old.105 at every age after twenty-five, african american women exhibit higher rates of infertility than white women, which may be a result of lesser access to healthcare services.106 nevertheless, women of color are significantly less likely to address their own infertility through assisted reproduction than are white women.107 even where covered by insurance, the women using art tend to be wealthy, white, and well-educated.108 according to cots, a british-based volunteer surrogacy organization, only five percent of couples looking for a surrogate through its program are nonwhite.109 cultural reasons may contribute to the disparity, since infertility is a particular area of shame for many women of color due to a false perception that “infertility is for white people.”110 on the other hand, women of color are increasingly more likely to act as surrogates for white women.111 potential parents might prefer to use a surrogate of another race because of “the temptation to regard the child as a ‘product’ wholly separate and distinct from the pregnant woman.”112 in addition, it is arguably easier for surrogate mothers to give up a baby of a different race.113 of course, money plays a role in both minority access to art treatment and in ability to serve as a surrogate. first, the high cost of art makes it unattainable for many poor women.114 in states that do not mandate art insurance coverage, availability is limited to those who can afford to pay out-ofpocket.115 limiting surrogacy fees may help improve accessibility for minority groups.116 second, even 104 carbone, supra note 101, at 1748. 105 id. at 1763. 106 id. at 1749–50. 107 janelle richards, cost and culture keeping black women out of infertility centers, the grio (mar. 10, 2011, 8:16 am), http://www.thegrio.com/health/cost-and-culture-keeping-black-women-out-of-infertility-centers.php. 108 id. 109 helen weathers, i’m a white woman but i’ve become a surrogate mother for an asian couple, daily mail (mar. 1, 2008, 3:31 pm), http://www.dailymail.co.uk/femail/article-522670/im-white-woman-ive-surrogate-mother-asiancouple.html. 110 richards, supra note 107. 111 krawiec, supra note 102, at 46. 112 mary lyndon shanley, making babies, making families: what matters most in an age of reproductive technologies, surrogacy, adoption, and same-sex and unwed parents 121 (2001). 113 weathers, supra note 109. 114 carbone, supra note 101, at 1765. 115 john a. robertson, commerce and regulation in the assisted reproduction industry, in baby markets: money and the new politics of creating families 191, 192 (michele bratcher goodwin ed., 2010). 116 kevin tuininga, the ethics of surrogacy contracts and nebraska’s surrogacy law, 41 creighton l. rev. 185, 201 (2008). 2013 columbia journal of race and law 41 though two-thirds of women waiting to become surrogates earn less than $30,000 per year,117 poor women are sometimes not chosen as surrogates because of fear that the situation will feel coercive.118 when people of color are chosen to be surrogates, it can be argued that their choice to use their bodies in this manner, based on a monetary incentive, ultimately reduces them to a slavery-like status, exploiting their vulnerability and compromising their dignity.119 on the other hand, given the history of slavery in the united states, african americans arguably are significantly aware of harms that can be associated with treating bodies as property or “private” objects, particularly when there is no capacity for self-ownership. the fact that the body and its constituent parts have long been traded, bonded, and insured, belies the claim that human bodies are incompatible with market valuation. overall, anti-commodification arguments supporting findings that surrogacy contracts are against public policy are meant to protect “vulnerable” people with low income. but left out of the dialogue is how people of color can also be consumers in these transactions, and how the market can work to their advantage. certainly in some cases, donors and surrogates, driven by economics, may enter potentially harmful contracts to which they would otherwise not agree, leading to the exploitation of poor people and, often, people of color. however, providing an incentive for donors will increase options for the disproportionate number of infertile african americans. arguably people of color have as much to gain as to lose through the use of art, as both donor, benefiting from the compensation, and recipients, benefiting from the increased supply. 2. market rhetoric and pricing there are other racial consequences of art that can be raised in a discussion of public policy. intended parents can often use the market to make a child resemble the non-biologically related family as closely as possible,120 which can be beneficial in many ways but can also perpetuate racial hierarchies. an unregulated market creates competitive prices according to donor characteristics, which often include racial features. simple supply and demand allow for competitive pricing, in which people will pay a premium to have kids that share their racial heritage. since art are primarily used by white people, the result is that white genetic material often commands a higher market value than african american gametes. this can lead to the commodification of genetic material and the children it produces. it has been suggested that the economic value of a child can be found by subtracting the total anticipated cost from the total of all expected benefits.121 in this equation, one such benefit may be social capital for the parent, meaning that a blond-haired, blue-eyed child might be worth more, whereas a 117 id. 118 alex kuczynski, her body, my baby, n.y. times, nov. 28, 2008, available at http://www.nytimes.com/2008/11/30/magazine/30surrogate-t.html. racial minorities are not the only groups that have been discriminated against in this field. even though laws mandate insurance coverage of art in some states, the same laws may limit lgbt access by requiring a woman’s eggs to be fertilized by her spouse or by requiring her to demonstrate infertility by engaging in unprotected intercourse for a designated period of time. bebe j. anderson, lesbians, gays, and people living with hiv: facing and fighting barriers to assisted reproduction, 15 cardozo j.l. & gender 451, 460–61 (2009) (describing various state laws governing donor eligibility for insurance coverage). furthermore, fda guidelines specifically discriminate against gay men by recommending that any man who has had sex with another man in the past five years be ineligible for sperm donation. id. at 457–58 (explaining the fda’s recommendations for determining donor eligibility). this is theoretically meant to protect against the risk of hiv, yet a man who has engaged in heterosexual intercourse with a woman known to have hiv is only banned from donation for one year. id. 119 this argument has been made in the context of the sale of organs. see, e.g., dan brock & douglas hanto, presentation at the mit hippocratic society conference: the organ trail: the science and ethics of tissue engineering, organ transplantation, and organ trafficking (mar. 10, 2007) (surveying perspectives for and against organ transplantation). for details about the conference, see conference 2007: the organ trail: the science and ethics of tissue engineering, organ transplantation, and organ trafficking, mit hippocratic society, http://web.mit.edu/hippocratic/www/2007.html (last visited dec. 6, 2012). 120 debora l. spar, as you like it: exploring the limits of parental choice in assisted reproduction, 27 law & ineq. 481, 484–85 (2009) (describing the market for various desirable characteristics in sperm and eggs). 121 gabilondo, supra note 103, at 120. 42 racial inequality in contracting vol. 3:1 minority child would be discounted.122 though this kind of market rhetoric is uncomfortable, it is also hard to refute. in the united states, for example, it is currently more expensive to adopt a white child than to adopt a black child, indicating that price may have more to do with parental demand than with the welfare of the child.123 an unregulated market for genetic material in art may also foster eugenic practices, which may raise additional ethical issues relating to race. eugenics is defined as the science of improving a human population by controlled breeding to increase the occurrence of desirable heritable characteristics.124 most u.s. sperm banks provide information regarding donor skin color and some even organize donor catalogues by race.125 california cryobank, america’s largest sperm bank, allows potential parents to choose from traits including, among other things, height, weight, education, occupation, religion, eye color, hair color, race, medical history, and sat scores.126 in discussions about baby m, have the class consider the potential long-term effects of enforcing surrogacy contracts in an unregulated market. what if the existing paradigm (upper middle class white families looking to make a baby that is either genetically related to them or has similar traits as them) results in a pricing scheme under which white gametes command a higher price than black gametes? should users of donated genetic material be able to select gametes on the basis of race, or might contract law have a place in limiting the enforceability of certain contracts on that basis? are there ethical concerns with allowing intended parents to choose the specific traits, including eye, hair, and skin color, of a potential baby? what are the far-reaching results of such self-selection?127 the very nature of the legal issues in cases about art contracts—the policy based question of surrogacy, for example, and the inevitable consideration of societal attitudes toward reproduction—links the question of race in some cases directly to the court’s reasoning process. decisions about public policy, by their definition, depend in large part on the political and social views of the court, and the facts can be spun in different ways to support different legal conclusions. a court’s view about issues related to race (and class and gender) can ultimately affect the rule of law. openly analyzing racial issues in the discussion of public policy (particularly in cases involving art) will help students understand the social world in which we live and the relationships and assumptions in the cases. this, in turn, will undoubtedly lead to flexible and relative ways of thinking about the doctrine. d. specific performance and negative injunctions: involuntary servitude and the thirteenth amendment 122 id. at 121. 123 michele bratcher goodwin, baby markets, in baby markets: money and the new politics of creating families 2, 8 (michele bratcher goodwin ed., 2010). 124 the oxford english dictionary (2d ed. 1989). 125 dov fox, racial classification in assisted reproduction, 118 yale l.j. 1844, 1846 (2009). 126 id. at 1850. 127 to the extent regulation of surrogacy is a good thing, you might also have the class consider any ethical issues that may arise when intended parents choose to go abroad to avoid the high costs and regulation that exist in the united states. the heavy regulation and cost of surrogacy contracts in the united states has led to new globalization concerns that affect women of color. in recent years there have been thriving surrogacy markets created in other countries, markets used by wealthy americans (and europeans) seeking unregulated use of wombs. these thriving markets, most notably in india, provide opportunities for exploitation, since they involve monetary transactions in which women are putting their bodies at risk in exchange for money. the issues, however, are complicated because of the conflicting claims about non-discrimination and human dignity—those made by gay couples, for example, who have to use a surrogate if they wish to be parents with biological connections to their children, and those made about the exploitation of indian women. overall, women’s rights advocates are split over whether the outsourcing of surrogacy to india serves only to reinforce the perception of women as mere child bearers or whether it serves as a healthy expansion of fertility options. the racial implications regarding circumventing american regulation at the expense of indian women can be incorporated seamlessly as a follow up thought question if the class concludes that regulation is necessary to protect various interests in the process. 2013 columbia journal of race and law 43 according to restatement (second) of contracts, “[a] promise to render personal service will not be specifically enforced.”128 a court’s refusal to grant specific performance in a personal service contract is partially based in part on the fact that such compulsion results in involuntary servitude.129 while a court will not specifically enforce a contract for personal services through an affirmative order, a party may, in some cases, prevent an employee from working elsewhere through a negative injunction.130 in doing so, the employer’s objective is typically to pressure the employee to return to work by straining her means of making a living elsewhere. such injunctions are most commonly awarded in service contracts involving athletes and entertainers because of the notion that their services are unique. considering the ties to slavery and the concerns of the thirteenth amendment, critics see injunctions against african american athletes and entertainers as especially egregious. since the injunction forces the employee to work, it is tantamount to involuntary servitude. beverly glen music, inc. v. warner communications, inc., 131 is used in some contracts casebooks to illustrate the limits of injunctions. in warner, anita baker, at the time an unknown african american singer, signed a contract with beverly glen.132 after recording a successful album for beverly glen, baker was offered a better deal by warner communications and notified beverly glen that she was no longer willing to perform under the contract.133 after unsuccessfully trying to enjoin baker individually from performing elsewhere, beverly glen sought an injunction against defendant warner communications to prevent it from employing her.134 the california court denied defendant’s request for an injunction, holding that preventing others from employing baker was an impermissible attempt “to deprive ms. baker of her livelihood and thereby pressure her to return to plaintiff's employ.”135 the court reasoned that “[d]enying someone his livelihood is a harsh remedy.”136 this principle of law under the restatement and as exemplified in warner was first developed in cases following the passage of the thirteenth amendment, which bars involuntary servitude.137 while not all early cases have explicitly analyzed the thirteenth amendment, most have referenced the amendment in spirit, as a pillar on which our society has evolved. these references are often used to substantiate a judge’s reasoning for denying an order of specific performance or an injunction that would otherwise result in involuntary servitude.138 this line of reasoning now permeates our courts and has become the foundation on which cases that equate specific performance and injunctions to involuntary servitude rest. such cases referencing the constitution (directly or indirectly) are intermittent. however, they nevertheless illustrate that the trend against ordering specific performance or injunctions that result in involuntary servitude is deeply rooted in the constitution. there is, however, a line of cases typically involving athletes and entertainers in which negative injunctions are awarded. these courts reason that because athletes and entertainers are especially unique, monetary damages are more likely to be inadequate for the non-breaching party. the most notable case 128 restatement (second) of contracts § 367(1) (1981). 129 id. § 367(1) cmt. a (1981). 130 id. § 367(2) cmt. c (1981). 131 beverly glen music, inc. v. warner communications, inc., 178 cal. app. 3d 1142 (1986). 132 id. at 1143 133 id. at 1143–44. 134 id. at 1144. 135 id. at 1145. 136warner, 178 cal. app., at 1145. 137 nathan b. oman, specific performance and the thirteenth amendment, 93 minn. l. rev. 2020, 2076–78 (2009). 138 see, e.g., ford v. jermon, 6 phila. 6, 7 (dist. ct. 1865). (holding that a negative injunction that would prevent an actress from performing elsewhere would be a mitigated form of slavery); see also, poultry producers of southern california v. barlow, 189 cal. 278, 288 (1922) (“[a] contract for service will not be specifically enforced, either directly by means of a decree directing the defendant to perform it or indirectly by an injunction restraining him for violating it.”) (held that such a decree would place a person in “a condition of involuntary servitude”); see also, warner, 178 cal.app.3d at 1144 (“[a]n unwilling employee cannot be compelled to continue to provide services to his employer either by ordering specific performance of his contract, or by injunction. to do so runs afoul the thirteenth amendment's prohibition against involuntary servitude.”) 44 racial inequality in contracting vol. 3:1 is the english case, lumley v. wagner. in that case, the defendant, wagner, was a german opera singer who contracted to perform exclusively for three months at plaintiff, lumley’s, opera house.139 during the course of the contract, wagner was offered higher pay to sing at another opera house, and thus abandoned her contract with lumley.140 based on the language of the parties’ agreement, lumley sought an injunction against wagner to prevent her from performing at another opera house.141 the court recognized that it had no “means of compelling [wagner] to sing,” but that it could “compel her to abstain from the commission of an act that she has bound herself not to do, and thus possibly cause her to fulfill her engagement.”142 though it had no power to enforce the specific performance of the contract, the court found a semantic backdoor, so to speak, through which it could facilitate fulfillment of the original contract. the lumley rule came out of an opera house dispute. however, it has been widely used in american sports law, largely because the individual natures of athletic and artistic talents and contracts are quite similar.143 that is, the production manager and franchise owner face strikingly similar problems when the star cellist or quarterback suddenly becomes recalcitrant. such talents are not easily replaced and traditional damages are insufficient to remedy the problem. despite lumley and its progeny, courts are generally loathe to issue injunctions in personal services cases. observations about the genesis of the lumley rule and historical disparities in its application lend some insight. professor vandevelde has noted that “the lumley rule originally gained its hold on american law in a series of cases involving efforts by male theater managers to control the lives of female performers.”144 this historical observation suggests how the lumley rule might affect, or be affected by, the race of the party attempting to breach. while sweeping parallels between race-based and gender-based forms of discrimination are not justified here, it is nonetheless true that “[i]n creating the image of an individual, gender, like race, has been one of the most important signifiers in american culture.”145 in the late nineteenth-century, when a male broke a performance contract, he could be sued for damages, but was rarely, if ever, subject to lumley rule injunctions.146 but, “[b]ecause late nineteenthcentury society imposed cultural bounds on the roles open to women, it was unthinkable that women could be fully free laborers.”147 a similar argument could be made about black entertainers of the era, as similar cultural bounds on opportunities for black performers no doubt existed. and while the more refined argument has limited its scope to gender, the contention that the “image of the independent, yeoman-free laborer [as] distinctly masculine” could likely be narrowed further to distinctly white and masculine without much stretch of the imagination.148 on its face, a rule prohibiting negative injunctions in personal service contracts seems to make sense; at first blush, it is easy to see how the enforcing a negative injunction might give the impression of 139 see generally lumley v. wagner, 42 eng. rep. 687 (1852). 140 id. at 687–88. 141 id. at 688. 142 id. at 693. 143 see, e.g., lemat corp. v. barry, 275 cal.app.2d 671 (1969) (granting one year injunctive relief against former basketball player); central new york basketball, inc. v. barnett, 181 n.e.2d 506, (ohio com.pl. 1961) (awarding injunction to prevent professional basketball player from playing basketball for another club in another league in violation of his contract with the plaintiff); phila. ball club v. lajoie, 51 a. 973 (pa. 1902) (enforcing an injunction preventing a baseball player from seeking employment on another team); boston celtics ltd. p’ship v. shaw, 908 f.2d 1041, 1048–49 (1st cir. 1990) (enforcing an inunction against a basketball player); see generally geoffrey christopher rapp, affirmative injunctions in athletic employment contracts: rethinking the place of the lumley rule in american sports law, 16 marq. sports l. rev. 261, 265 (2006). 144 james gray pope, contract, race, and freedom of labor in the constitutional law of “involuntary servitude,” 119 yale l.j. 1474, 1523 (2010). 145 lea s. vandervelde, the gendered origins of the lumley doctrine: binding men's consciences and women's fidelity, 101 yale l.j. 775, 829 (1992). 146 id. at 830. 147 id. 148 id. 2013 columbia journal of race and law 45 legally sanctioned involuntary servitude. however, in most situations, specific performance of a personal service contract does not violate the thirteenth amendment.149 arguably, because the thirteenth amendment was a response to the social conditions of its time, it “was intended to eliminate just such conditions of the worst off.”150 the “worst off” of that era were subject to “degrading and slave-like domination.”151 indeed, in the approximately 150 years since the thirteenth amendment was enacted, interpretation of it has adhered to its original intent;152 in order for a personal service contract to run afoul of the thirteenth amendment, it would have to amount to involuntary servitude in the darkest historical sense. typically, however, the contracts at issue involve well-compensated “elites such as entertainers, athletes, coaches, and professors,” who enter their contracts voluntarily and “free from direct physical coercion.”153 these kinds of contracts, therefore, are arguably beyond the concern of the thirteenth amendment.154 indeed, courts have granted injunctions more readily over the years with seemingly little protest.155 it is uncertain whether race has played a catalytic role in this area of contract law. given that much of the debate over injunctions in personal service contracts centers on the thirteenth amendment, surprisingly little is made of the issue of race when courts enforce negative injunctions. but while the social climate giving rise to the thirteenth amendment is a far cry from the squabbles “between a multi-millionaire athlete and a sports franchise owned by multi-millionaires,” the same social repercussions that led to abolishing involuntary servitude of slaves cause courts to steer clear of any suggestion of similar conditions, no matter how much money a breaching party may have.156 though the relationship between the specific enforcement of injunctions in personal servicetype contracts and racial concerns may be primarily historical, it is worth exploring with your class whether, in their use of specific performance and negative injunctions, courts should be more sensitive to the “intertwined dynamics of racial subordination.”157 ask the class what effect historical contractual injustice should have on the enforcement of personal service contracts, if any. as far as sensitivity to such enforcement goes, maybe such a question is better posed as a sociological one? it is easy to speculate that an affirmative injunction forcing a black entertainer to complete a performance might awaken some deep-seated pain or other intense emotion. but should courts take into account such sensitivities? should the race of the party from whom performance is sought matter? should it matter if that person is wealthy and does not lack market power? take it one step further, and ask your class whether negative injunctions should be treated differently from affirmative injunctions. would an injunction preventing a black athlete from working with one team until he finishes his contract with another trigger racial alarms similar to those triggered by an affirmative injunction? perhaps “involuntary servitude,” per se, is not the concern so much as memories of coercion and limited opportunities plaguing black communities. maybe the lumley rule avoids the pitfalls american courts have tried to avoid. or maybe it is simply a semantic improvement over affirmative injunctions, whose constitutional hazards the rule claims to sidestep. these are questions well worth exploring with your contracts class, even if briefly, as you teach damages and the specific performance doctrine. at a minimum, providing the historical background that gave rise to the public policy arguments against injunctions, and posing questions relating to cultural and racial sensitivities, will help students appreciate the limits of the use of injunctions and help them better 149 id. at 2023. 150 lea s. vandervelde, the thirteenth amendment of our aspirations, 38 u. tol. l. rev. 855, 856 (2007). 151 oman, supra note 137, at 2025. 152 id. 153 id. at 2099. 154 id. 155 douglas laycock, the death of the irreparable injury rule, 103 harv. l. rev. 687, 692 (1990) (concluding that the rule allowing specific performance only upon a showing of no adequate remedy at law is effectively dead). 156 rapp, supra note 143, at 278. 157 id. 46 racial inequality in contracting vol. 3:1 understand the scope of the rule itself. this, in turn, may underscore essential values underlying the american system of contract damages, which seeks to compensate rather than to punish. iv. conclusion law professors have a great deal of power because we teach students what to include and what to exclude in their analysis of the law.158 it is incumbent upon law professors to make people of color visible in contracting. for any given case, there are many different rules embedded in values that are often in conflict with each other. to resolve these varying legal values requires teachers, as those with power, to make what are inherently political choices that often legitimize and reflect the social values and power of the dominant class.159 in this role, we should encourage students to challenge ideas and the inherent political choices and influences within the law, rather than accepting information no matter how it is framed.160 it is impossible to teach law without awakening racial and cultural conflict and it is best to be prepared to include discussions of race so that one may do so in a purposeful and constructive way.161 those marginalized by the white, male perspective of law school are usually forced to learn the dominant perspective while already possessing a keen understanding of the “margin.”162 however, those who are not outsiders will not likely see other perspectives unless they are taught or happen to come to law school with some experience that has given them some other perspective.163 students cannot truly understand the law, how it operates in our society, and most importantly, how to use it on behalf of clients and society without seeing how race has influenced its creation and continues to be a factor in the way that the law is applied.164 for students of color to understand doctrine in a way that does not contradict their histories, values, and experiences, and for white students to understand the law more holistically and comprehensively, other perspectives must be acknowledged and taught.165 encouraging students to examine their own assumptions and be mindful of other perspectives helps them contextualize the inherent racism in the law and understand its effects.166 the reality of the limits of race-neutral doctrine is often much clearer to law students of color who experience exclusion as they learn the doctrine. many white students whose beliefs and values are reinforced by law school are confused by why african american students do not feel similarly.167 there is an assumption that white students and professors, by not directly referring to race, are neutral and that their perspectives are not racialized.168 this lack of perspective masks a “white middle-class world view,” 158 williams, supra note 80, at 88. 159 athena d. mutua, the rise, development and future directions of critical race theory and related scholarship, 84 denv. u. l. rev. 329, 343 (2006). 160 francis lee ansley, race and the core curriculum in legal education, 79 calif. l. rev. 1511, 1580 (1991). 161 david dominguez, beyond zero-sum games: multiculturalism as enriched law training for all students, 44 j. legal educ. 175, 181 (1994). 162 ansley, supra note 160, at 1528–29. 163 id. (discussing the “false sense of universality that can so easily come to those in the center”); see also alice k. dueker, diversity and learning: imagining a pedagogy of difference, 19 n.y.u. rev. l. & soc. change 101, 104 (1991–92) (discussing how difference is subtly rejected in favor of the idea that we are all the same and that the most powerful standard is set by the heterosexual white male). 164 okianer christian dark, incorporating issues of race, gender, class, sexual orientation and disability into law school teaching, 32 willamette l. rev. 541, 544, 549 (1996). 165 kimberlé williams crenshaw, forward: toward a race-conscious pedagogy in legal education, 11 nat’l black l.j. 1, 2–3 (1988–1990); see also dark, supra note 164, at 544 (discussing how the inclusion of, race, among other issues “aids substantially in the intellectual depth and breadth of the law student”). 166 susan bisom-rapp, contextualizing the debate: how feminist and critical race scholarship can inform the teaching of employment discrimination law, 44 j. legal educ. 366, 369 (1994) (arguing that including various perspectives, specifically in the teaching of employment discrimination law, “help[s] students appreciate that abstract legal principles have concrete consequences for specific groups of employees”). 167 chase, supra note 2, at 58. 168 crenshaw, supra note 165, at 6. 2013 columbia journal of race and law 47 that requires students of color to adopt and speak on behalf of a perspective that is not their own.169 the problem for students of color is compounded by the fact that if they mention this major flaw in the law, they may be judged as self-interested, inappropriate, or as taking the classroom conversation in irrelevant “tangential” directions.170 the results of this situation can be far-reaching. students who feel “at home” or comfortable in the academic environment may be more likely to access a range of services such as professors, teaching assistants, academic support services, and writing centers. a contextualized analysis of the law that challenges the normalized assumptions inherent in the teaching of the law can help to reduce the classroom alienation of women, students of color, and students who may be marginalized for a variety of reasons, and ultimately have a positive effect on their academic performance. 169 id. at 3. 170 chase, supra note 2, at 58. 48 racial inequality in contracting vol. 3:1 w. e. b. du bois’ ambiguous politics of liberation: race, marxism and pan africanism adam gearey * introduction w. e. b. du bois summons the restless and provocative spirit of a pan africanism1 that, despite its association with the collapse of kwamah nkumah’s ghanaian revolution, has not failed as an idea. commentators have realised, to some extent, the ambiguities of du bois’ pan africanism. however, they have not shown how du bois’ deployment of the concept opens up a more radical political thinking.2 this essay will trace the various twists *  reader in law, birkbeck college, university of london. 1  although pan africanism refers to an understanding of african solidarity, the different ways in which the term has been used make it hard to properly define. the term pan africanism can be used to describe du bois’ association of the civil liberties struggle in america with the post-colonial struggle in africa. but du bois was not the only person to use the term. in the period after the end of european empire, pan africanism was used to refer to solidarity amongst african nations. see babacar m’baye, panafricanism, in africa and the americas: culture, politics and history 862, 862-64 (richard m. juang & noelle morrissette eds., 2008). pan africanism also describes feelings experienced by africans of the diaspora who long for some kind of belonging to africa. see introduction to encyclopedia of the african diaspora: origins, experiences and culture, volume 1, at xxxi, xxxix (carole b. davies ed., 2008). it is precisely this plasticity that is interesting. this essay hopes to capture the sense in which pan africanism is still an unfinished project. given the activist strains to du bois’ work, perhaps the question is: what will pan africanism become? what meanings will it have 2  see manning marable, the pan-africanism of w. e. b. du bois, in w. e. b. du bois on race and culture 193, 193-218 (bernard w. bell et al. eds., 1996) [hereinafter w. e. b. du bois on race and culture]. marable argues that there is a clear development in du bois’ work from a reluctant appreciation of the importance of africa to an appreciation of its central dynamic. this appreciation derived from the attempt to bring together 2012 columbia journal of race and law 266 and turns of du bois’ pan africanism as narrated in the text dusk of dawn. pan africanism demands a social, economic, and political revolution that goes beyond the civil liberties struggle and its focus on constitutional recognition. in leaving america for ghana, du bois committed himself to a very specific understanding of the african revolution. using the ideas of etienne balibar and jacques rancière, this essay will argue that du bois’ pan africanism evoked energies of revolution that point at an unfinished, rather than failed, radical project.3 i. dusk of dawn dusk of dawn4 is subtitled: an essay toward an autobiography of a race concept. this subtitle suggests that in writing his autobiography, du bois also provides an account of the way in which race is lived. dusk of dawn is similar in ambition to james joyce’s finnegans wake, where the story of the protagonist is autobiographical as well as the story of every man.5 like finnegans wake, dusk of dawn is concerned with the telling and re-telling of stories. the need to re-tell is inspired by two contradictory impulses: on the one hand, the desire for completeness; on the other hand, the suspicion that a life cannot be captured in a single marxism with an understanding of race for which du bois employed africa as a central symbol. whilst this counters harold r. isaacs’ understanding of du bois’ pan africanism as a “romantic racism,” and francis s. broderick’s dismissal of pan africanism as having achieved very little, marable’s argument does not engage with the inherently contradictory articulation of emancipatory politics. 3  for information on how this relates to the conventional interpretation that du bois offered a cultural definition of race, see segun gbadegesin, kinship of the dispossessed: du bois, nkrumah and the foundations of pan-africanism, in w. e. b. du bois on race and culture, supra note 2, at 219, 219-42. gbadegesin cites molefi asante’s argument that race is a matter of “socio-cultural identity” and relates this theme to the pan humanistic aspect of du bois’ thinking: “pan africanism is the clarion call of one portion of . . . disposed humanity to rise up to challenge and demonstrate the wealth of its heritage and its ability to contribute to the civilisation of the universals.” id. at 230-31. this essay argues that race and pan africanism are artificial political constructions. whilst they could be defined in socio-cultural terms, these explanations would not identify the peculiar structural logics through which they operate. 4  w. e. b. du bois, dusk of dawn: an essay toward an autobiography of a race concept (1940) [hereinafter du bois, dusk of dawn]. 5  see james joyce, finnegans wake (1999) (1939); lee spinks, james joyce: a critical guide 135 (2009). 267 w. e. b. du bois’ ambiguous politics of liberation vol. 1:3 story. the fundamental problem: how to describe “a concept” that is part of an everyday reality, but to which we are entirely blind. dusk of dawn was born in a moment of transition between “the cry at midnight thick within the veil”6 that was the souls of black folk7 and a “militant challenge”8 that was darkwater.9 the book testifies to “a sense of coming day.”10 but, what comes to light? dusk of dawn is an illumination of the “central problem of the greatest of the world’s democracies” and the “[p]roblem of the future world.”11 du bois develops this idea as follows: in the folds of this european civilisation i was born and shall die, imprisoned, conditioned, depressed, exalted and inspired. integrally a part of it, and yet, much more significant, one of its rejected parts . . . .12 du bois’ understanding of the negro as both part and not part of european civilisation—“integral” and “rejected”—is perhaps an elaboration on the doubleness that defines the souls of black folk. du bois is precise about the structure of the racist order: . . . [b]ecause of the modern african slave trade a tremendous economic structure and eventually the industrial revolution had been based upon racial differences between men; and this racial difference had now been rationalised into a difference mainly of skin colour.13 dusk of dawn outlines a phenomenon that announces itself in a racism that gives symbolic meaning to the “differences between men.”14 differences that could be given any number of meanings are frozen into particular form: a set of representations that figure a world. du bois asserts that these meanings are not “a permanent structure but . . . a changing growth.”15 we can only touch upon this theme. du bois wants to understand how power creates representations of the world that become the dominant 6  id. at vii. 7  w. e. b. du bois, the souls of black folk (1903). 8  du bois, dusk of dawn, supra note 4, at vii. 9  w. e. b. du bois, darkwater (1920). 10  du bois, dusk of dawn, supra note 4, at vii. 11  id. at vii-viii. 12  id. at 3. 13  id. at 4-5. 14  id. at 4. 15  id. 2012 columbia journal of race and law 268 interpretations of ‘reality.’ in dusk of dawn, pan africanism is imagined as a ‘counter-power’: a force that could create a different world, a different way of thinking and living. du bois writes that the first pan african conference occurred after the end of the first world war in 1919, and sought to bring together different “colored groups”16 in order to determine the possibilities of coordinated action in “co-operation with the white rulers of the world.”17 the pan africanists were aware that they had to address the colonial powers and make moderate demands. additionally, the conference was animated with the sense that the end of the first world war made a new order possible in africa. du bois and the pan africanists imagined “[a]n ethiopian utopia”18 or an “internationalised africa”19 carved out of the former german colonies and placed under international administration by the league of nations. (du bois wrote that the chicago tribune reported that this proposal had “less than a chinaman’s chance of getting anywhere in the peace conference.”)20 the conference’s idea of an ethiopian utopia was presented in the following terms: the natives of africa must have the right to participate in the government as fast as their development permits in conformity with the principle that the government exists for the natives, and not the natives for the government. they shall be allowed to participate in local and tribal government according to ancient usage, and this participation shall gradually extend . . . to the end that, in time, africa be ruled by the consent of africans.21 this vision of government reflects a gradualism. whether or not this is a pragmatic recognition of the cultural level of black africans as perceived by the colonial powers, an attempt to work within the discourse of the ‘education of the savage’ is hard to say. however, the demand that an independent african nation should be under the 16  du bois, dusk of dawn, supra note 4, at 275. 17  id. 18  w. e. b. du bois, the world and africa: an inquiry into the part which africa has played in world history 8 (1965) [hereinafter du bois, world history]. 19  neta c. crawford, argument and change in world politics: ethics, decolonization, and humanitarian intervention 258 (2000) 20  du bois, world history, supra note 18, at 8. 21  molefi k. asante & abu shardow abarry, african intellectual heritage: a book of sources 517 (1996). 269 w. e. b. du bois’ ambiguous politics of liberation vol. 1:3 auspices of an international organisation suggests that the conference scored an important point—the colonial powers had lost the moral mandate to rule colonial territories over which they claimed jurisdiction. the pan african conference of 1919 might have been cautious in its demands, but du bois was aware that it was inaugurating a politics that could be much more radical. the very concept of pan africanism pointed towards an idea of the government of africa that would have to sweep aside colonial empires. however, in 1919, the tentative first steps of pan africanism were hobbled by the kind of tensions present in emancipatory projects. the rebels had to define themselves against the old order that they desired to overthrow. it was necessary to work within the terms that the old order used to define itself and to invent the new order that would replace it. the radical potential of pan africanism went well beyond the request for an ethiopian utopia. once the pan africanists committed themselves to a notion of africa based on the rule of law, the force of their argument was such that they were compelled to affirm the need for a liberation struggle against the european empires. this is because “it is impossible to maintain to a logical conclusion . . . the idea of a perfect civil liberty based on discrimination, privilege and inequalities of condition.”22 the radicalism of pan africanism came into conflict with the civil liberties struggle. given that the struggle for full rights of citizenship had not been achieved in the united states, it is not surprising to see why there was opposition to the pan africanist agenda that du bois had hoped would inspire his allies in the naacp. the naacp tended to associate pan africanism with marcus garvey’s proposals for repatriations of former slaves. in particular, garvey had called for and was taking steps to implement “the negro domination of africa.”23 garvey’s ‘returnism’ appeared to the naacp as a distraction from the struggle in the united states.24 du bois’ insistence that the work of the conference was quite distinct from garvey’s project did not rally many to his cause. indeed, disagreement over strategy and the direction of the movement ran through the second conference in 1921 and was so intense that the third convention nearly failed to meet.25 22  etienne balibar, politics and the other scene 3 (2002). 23  du bois, dusk of dawn, supra note 4, at 277. 24  see id. at 275-78. 25  see id. at 276-78. 2012 columbia journal of race and law 270 when the convention eventually convened, du bois was instrumental in moving pan africanism beyond the notion of an ethiopian utopia and towards marxism. du bois “emphasised the importance of labor solidarity between white and black labor in england, america and elsewhere.”26 pan africanism was now informed by a marxian socialism that asserted the “organization of commerce and industry” on the basis of provision for “the welfare of the many rather than the enriching of the few.”27 the fifth conference, which met in manchester in 1945, marked du bois’ complete adherence to marxism. he saw pan africanism as an alliance between “trade unions, co-operative and other progressive organizations in the west indies, west africa, south and east africa.”28 in short, the struggle of the african was the worker’s struggle. the manchester meeting is central to the history of pan africanism because du bois met and forged a strong friendship with kwamah nkrumah at the conference. after nkrumah’s successful revolution in ghana, du bois took ghanian citizenship.29 at the all african conference in accra in 1958 (the sixth pan african conference), du bois’ african socialism provided the theoretical underpinnings for the transformation of pan africanism into revolutionary nationalism. du bois’ advice was for african nations to “borrow” from “communist countries” and to preserve their own economic and social capital.30 ii. the part that is not part du bois’ pan africanism inaugurates a radical political discourse. following the works of jacques rancière and etienne balibar, prominent marxist philosophers, one can suggest that liberation expresses itself as the revolt of ‘the part that is not part.’31 this argument is based on a reframing of the idea of the citizen. 26  id. at 279. 27  crawford, supra note 19, at 303. 28  du bois, world history, supra note 18, at 244. 29  david l. lewis, w. e. b. du bois: the fight for equality and the american century, 1919-1963, at 687 n.569 (2000). 30  see zhang juguo, w. e. b. du bois: the quest for the abolition of the color line 161 (2001). 31  see jacques rancière, ten theses on politics, 5 theory & event at thesis four (2001), http://muse.jhu.edu/journals/theory_and_event/v005/ 5.3ranciere.html (no page numbers appear in original published version online). 271 w. e. b. du bois’ ambiguous politics of liberation vol. 1:3 rancière quotes aristotle, writing that the citizen is “he who partakes in the fact of ruling and the fact of being ruled.”32 in this regard, the civil liberties struggle pushed for the inclusion of a previously excluded group, “the negro,” and insisted that the negro should become a democratic political subject who partakes in “ruling and being ruled.”33 the radical structure of this claim breaks apart all the conditions for rule on the basis of knowledge, power, wealth, or birth and counters the argument which justified a democratic slave-owning republic where the natural constitution of the “negro” demanded that she or he accepted the rule of the white man. consequently, the civil liberties struggle ruptured the old order that had claimed legitimacy. pan africanism aimed to achieve a similar rupture at an international level by interrupting the international law and politics that defined africa as a territory held by colonial powers. there were profound tensions between the national and international struggles against these different orders of racism. nevertheless, pan africanism—by virtue of its internationalism—inaugurates a radical set of possibilities. rancière’s essential point is that democracy ruptures the arche—the principle of rule—and is distinct from orders that define legitimacy through birth and filiation or through some notion of a “natural” order. politics is the definition of an artificial condition where the supplemental part is made to count. thus, the artificial order of democratic politics does not depend on the identification of the ‘the people’ with race or a social disadvantage. to make the supplemental part count requires a power that can press into existence political meanings. thus: the clash between the “rich” and the ”poor,” for instance, is the struggle over the very possibility of these words being coupled, of their being able to institute categories for another (ac)counting of the community. there are two ways of counting the parts of the community: the first only counts empirical parts— actual groups defined by differences in birth, by different functions, locations, and interests that constitute the social body. the second counts “ ‘in addition’ a part of the no-part.”34 32  id. at thesis one (quoting aristotle, the politics, book iii). 33  id. at thesis three. 34  id. at thesis six. 2012 columbia journal of race and law 272 in this fundamental sense, politics defines the community in which people are to be counted. political power brings people to light and makes them visible or defines them as political subjects. what counts is thus an artificial construction of social being and a power that can create an association between a people and a set of ideological meanings that structure their belonging together in a community. du bois’ pan africanism can be understood in these terms. du bois realised that the ghanian revolution had the potential to create a new order. an order based on making race count, a political order that coordinates race and citizenship in an independent african nation. nkrumah’s revolution brought together citizenship and race and it gave expression to the part that was not part by making it integral to the nation. iii. conclusion the ghanaian revolution had the strength to provide an exemplification of pan africanism mandate. however, the radical charge of pan africanism is such that one does not have to accept this historical determination as terminal. pan africanism is not compromised by the degeneration of the ghanaian revolution and nkrumah’s turn to dictatorship. framing pan africanism through a radical understanding of politics points towards forms of organisation and democratic politics that have yet to be brought into being. pan africanism is the provocation for a dawn yet to come. vol 2.1-final proof 2012 columbia journal of race and law 149 life, liberty, and the pursuit of whiteness: a revolution of identity politics in america andrés acebo* an enduring motif in american political history reflects the nation’s slow progression towards inclusion of a once disenfranchised populace. in the annals of its jurisprudence, the nation recalls a time when citizenship was linked to race: a time when the racial perquisites for naturalization were not challenged based on its constitutionality, but on who could be professedly “white.” president obama’s election ushered in a new chapter to this american narrative. his election and the response to it reveal how far we have come and how far we have left to travel on the path towards equality in citizenship. this article frames a longstanding debate concerning race consciousness in the political sphere and how it consequently influences an ever-changing electorate. it explores the impact that our courts and our policymakers have had on shaping what it means to be white in america, and accordingly to possess a majority voice in society. the article further seeks to explicate how politicized social institutions are sustained from generation to generation by way of an unabashed preservation of the status quo. those who come to power do so by protracting nostalgic yearnings, summoning persistent lore and mythos about a way of life that has not always benefited an entire electorate, and not threatening or offending the mainstay of the american political complex. obama’s election revealed a model, embossed by a romanticized collective national history and a steadfast commitment to the ideals of american exceptionalism, for transforming a minority candidate’s use of identity politics to garner support, influence and ultimately the ability to govern. i. introduction.................................................................................................................152 ii. whiteness sought and defined in american jurisprudence..............155 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! ! *!j.d., rutgers university school of law-newark, 2011; b.a., brown university, 2008. this essay is dedicated to my wife, janice, who continues to inspire me every day with every conversation. i would like to thank the editorial board of the columbia journal of race and law for their special efforts in preparing this essay for publication. special thanks to adya simone baker and jade alexander craig for their patience and insightful assistance. ! 150 life, liberty, and the pursuit of whiteness vol. 2:1 a. contemporary whiteness through biology and demographics........................................158 iii. 2008 presidential election reveals new form of racism.....................159 a. the pursuit of the white vote............................................................................................159 b. a message of change and the opposition that fears it...................................................163 iv. “real americans” incite racism with divisive rhetoric.......................164 a. 2010 candidates followed obama’s example to distinguish themselves from him....165 v. american exceptionalism stifled by nostalgia for a more divisive era.........................................................................................................................................167 i. introduction april 12, 2011, marked one hundred and fifty years since the civil war’s first shots were fired at fort sumter.1 the war pinned brother against brother and forced an infant republic to confront its original sin of slavery. the sesquicentennial of that defining struggle provides this generation of americans with the opportunity to reflect on how far we have come and how much further we must travel on the curving path toward our more perfect union. despite undeniable progress, the nation’s wounds of bigoted conflict have not completely healed. racism, albeit publicly renounced, has persisted and remained the scar that fervently reminds people of a much more divided time. in the twenty-first century, racism can no longer be classified as a social ill that plagues the ignorant and indifferent. racism has transmuted from a “creature of habit” that sought to justify the subordination of some to a more nuanced political calculation for preserving the current racial political establishment.2 this phenomenon did not occur overnight, but it certainly did find the election of the nation’s first non-white president as the opportune moment to emerge. this new racism has been coupled with centuries-old nativism3 and has disguised itself under the banner of american exceptionalism. american exceptionalism finds its roots in the romanticized emergence of the american democracy.4 horatio alger5 provided this narrative in parables about the american dream, while john !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 civil war sesquicentennial, civil war trust, http://www.civilwar.org/150th-anniversary/ (last visited jan. 11, 2012). 2 benjamin p. bowser & raymond george hunt, impacts of racism on white americans, 160 (1996). 3 nativism refers to the historical set of policies that favored native-born inhabitants over the new waves of immigrants. it also encompasses the “revival or perpetuation of an indigenous culture especially in opposition to acculturation.” nativism definition, merriam webster’s dictionary, http://www.merriamwebster.com/dictionary/nativism (last visited jan. 12, 2012). indigenous and native do not refer to autochthonous people of a particular region but rather to the earliest settlers and colonizers. one key example of historical nativist agendas comes from the 1798 alien and sedition act, which president john adams signed to limit the ability of immigrants to gain full political rights. see also james morton smith, freedom’s fetters: the alien and sedition laws and american civil liberties (1967). 4 gordon s. wood, the idea of america: reflections on the birth of the united states 2 (2011) (“our beliefs in liberty, equality, constitutionalism, and the well-being of ordinary people came out of the revolutionary 2012 columbia journal of race and law 151 winthrop’s famous speech painted america as the shining “city upon a hill.”6 what is so perplexing is that this idea, which helped form the tide that ushered barack obama to the presidency, has become the one that seeks to wash him out. the attack on the president has been one in which the racial epithets of yesteryear have been drowned out by the spewing of political rhetoric that claims to try to “take america back” for its rightful keepers.7 a growing sentiment in our political debate is that those who do not blindly accept america as the greatest civilization in history and those who admonish the present conditions as defiling the egalitarian principles enshrined in the constitution are not true or real americans. the emergent consequence is that race consciousness and, more specifically, what it means to be white in america is qualified by more politically conservative circles in terms of whether an individual subscribes to notions of american exceptionalism. groups enter the fold if they do not condemn, criticize, complain about, or campaign for any sort of fundamental change to the existing order. essentially, for those once excluded, to now be white in america, they must not offend the structures that perpetuate white majoritarian influence. the history of what is determinably white in the united states has been dictated by a fluid metric. it is not at all unusual that this redefinition has appeared at a time where census projections reveal the rapid decline of the white majority in america. the u.s. census bureau has reported that, by 2050, minorities will be the majority in america.8 minorities currently constitute one-third of the population in the united states, but according to census figures, they are projected to become the majority population by 2042.9 by 2050, minorities will constitute fifty-four percent of the population.10 the implications of what will come when these projections become reality are grave. with no majority white race, what will become of racialized existence in pluralist america? the prosperity and equality once drawn from the well of acculturation will be dried up. what will emerge in its place? will a new dominant racial majority emerge or will accepted citizenship occur through enculturation? the answer is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! era. so too did our idea that we americans are a special people with a special destiny to lead the world toward liberty and democracy.”). 5 alan seaburg, horatio alger, unitarian universalist historical soc’y, http://www25.uua.org/uuhs/duub/articles/horatioalgerjr.html (last visited jan. 12, 2012). see also horatio alger, jr., ragged dick and struggling upward (read a classic 2011) (1868) (publisher notes that, although “the days when horatio alger was one of the most widely read authors in america have long since passed, his message—that by dint of hard work, decent morals, good manners and a hefty serving of luck, any american boy can rise from rags to riches—was once read and believed by every significant man of business, politics, literature and academia in america in the early decades of this century.”). 6 john winthrop, city upon a hill, mt. holyoke college, http://www.mtholyoke.edu/acad/intrel/winthrop.htm (last visited jan. 12, 2012). 7 prudence l. gourguechon, take america back: a tea party slogan on the couch, huffington post (aug. 19, 2010, 04:24 pm), http://www.huffingtonpost.com/dr-prudence-l-gourguechon/take-back-america-a-teap_b_680444.html. 8 an older and more diverse nation by midcentury, u.s. census bureau (aug. 14, 2008), http://www.census.gov/newsroom/releases/archives/population/cb08-123.html [hereinafter census bureau, an older and more diverse nation]; minorities expected to be majority in 2050, cnn (aug. 13, 2008), http://articles.cnn.com/2008-08-13/us/census.minorities_1_hispanic-population-census-bureau-white-population; see also sam roberts, in a generation, minorities may be the u.s. majority, n.y. times (aug. 13, 2008), http://www.nytimes.com/2008/08/14/washington/14census.html. 9 census bureau, an older and more diverse nation, supra note 8. 10 id. 152 life, liberty, and the pursuit of whiteness vol. 2:1 up for debate. however, history and judicial opinions alike reflect the absolute discriminatory intent behind separating citizens into groups of those deemed to belong and those who do not. this article proceeds in four parts. part ii explores and discusses the interplay of race and american jurisprudence. the privileges of american citizenship since the nation’s founding have been inextricably linked to racial classification. what it means to be white and who is white in america is constantly changing. accordingly, the acquisition of rights has often been forged by racial reclamation. this section examines the decisions of the united states supreme court in ozawa v. united states11 and united states v. thind,12 where the nation’s highest court swiftly legitimized the practice of making whiteness more exclusive, harder to attain, and consequently more desirable. the article postulates what will become of the remnants of the legacy of racial supremacy when the nation is redefined as a majorityminority electorate. part iii evaluates president obama’s 2008 election and examines how his pluralistic campaign revealed not just the progress that has been made in america’s journey toward racial equality, but also the new affronts to social harmonization. the 2008 presidential election, a transformative moment in american history, was not the watershed moment of racial reconciliation that it has been portrayed to be.13 this section offers that the election of the nation’s first non-white president established a new paradigm for identity politics in the united states. president obama’s successful campaign revealed that america’s racial cacophony had not yet been keyed into melody. at the onset of a new century, with demographic trends envisaging a new racial electoral composition, the pursuit of whiteness has been relegated to romantic notions of american exceptionalism. an uncertain future has birthed a movement emboldened by nostalgia that threatens that the ushering in of change will threaten the pillars of the republic. part iv analyzes the 2010 elections and considers how the obama model for identity politics was galvanized and successfully used by some of his staunchest detractors. leading candidates attached their personal narratives to the republic’s chronicles. in doing so, acquiescence to the establishment’s will promulgated a new sentiment, which reaffirmed the racialized social order. by not simply subscribing to the existence of american exceptionalism, but instead expressing anguish and disdain for those who not only deny its veracity but seek to weaken its condition, minority candidates have found a way to appeal beyond their immediate base of supporters. in concluding, part v of this article observes that america’s demographic shift towards a majority-minority citizenry will make little difference if its politics remain unshaken. in the end, elections will amount to nothing more than isolated victories rather than breakthroughs until the legacy of racial supremacy is eradicated. the law’s memorialization of an ethereal demonstration of racial privilege and a modern electorate’s hope to garner a pluralist society in which all persons are treated equal are once more pitted against each other at the highest levels of our public discourse. amidst the demagoguery and rhetoric is the often-overlooked axiom that america’s “exceptionalism” lies in the nation’s ability to confront its inequality and maintain that a government of the people, by the people, shall always be for !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 11 260 u.s. 178 (1922). 12 261 u.s. 204 (1923). 13 daniel schorr, “a new, ‘post-racial” political era in america,” npr, jan. 28, 2008, http://www.npr.org/templates/story/story.php?storyid=18489466 (last visited jan 28, 2012); see also mario van peebles, “a ‘post-racial’ america,” npr, jan. 29, 2010, http://www.npr.org/templates/story/story.php?storyid=123109751 (last visited jan. 28, 2012). 2012 columbia journal of race and law 153 all the people. elections that usher in both the face of groups long removed from influence and, more importantly, their voice are only the first step on a long road to redemption. ii. whiteness sought and defined in american jurisprudence professor ian f. haney lópez writes in white by law: the legal construction of race, that the determination of what it meant to be white in america was not always an “easy question” to answer.14 he notes that as “immigration reached record highs at the turn of this century, countless people found themselves arguing their racial identity in order to naturalize. from 1907, when the federal government began collecting data on naturalization, until 1920, over one million people gained citizenship under the racially restrictive naturalization laws.”15 during this period naturalization “rarely involved formal court proceedings and therefore usually generated few if any written records beyond the simple decision.”16 soon, however, scores of cases interpreting whiteness as a prerequisite to naturalization came before state and federal courts.17 the appeals rendered “illuminating published decisions that documented the efforts of would-be citizens from around the world to establish their whiteness at law.”18 citizenship applicants from hawaii, china, japan, burma, the philippines and countless other “mixed-race applicants” failed in this endeavor.19 contrariwise, history recalls a time where “applicant from mexico and armenia” were signaled out as “white,” but simultaneously “vacillated over the whiteness of petitioners from syria, india, and arabia.”20 haney lópez notes that these jurisprudential accounts served as a ”taxonomy of whiteness” and that they later became illustrative of the “imprecisions and contradictions inherent in the establishment of racial lines between whites and non-whites.”21 the united states supreme court decided two cases in the 1920s regarding what it meant to be white. the first, ozawa v. united states,22 involved a japanese man who applied for citizenship under the naturalization act of 1906, which only allowed white persons and persons of african descent to naturalize.23 the court looked to congressional intent in deciding whether to grant ozawa citizenship, observing that: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 14 ian f. haney lópez, white by law: the legal construction of race 1 (2006) 15 id. 16 id. 17 id. at 163–67 (appendix a provides a chronological table of the “racial prerequisite cases” annotating the court’s principled reasoning and final dispositions). 18 id. at 1. 19 id. 20 lópez, supra note 14, at 1. 21 id. 22 260 u.s. 178 (1922). 23 id. at 190 (section 2169 of the naturalization act of 1906, under the heading “naturalization,” read as follows: “the provisions of this title shall apply to aliens, being free white persons, and to aliens of african nativity and to persons of african descent.”). 154 life, liberty, and the pursuit of whiteness vol. 2:1 in all of the naturalization acts from 1790 to 1906 the privilege of naturalization was confined to white persons (with the addition in 1870 of those of african nativity and descent), although the exact wording of the various statutes was not always the same. if congress in 1906 desired to alter a rule so well and so long established, it may be assumed that its purpose would have been definitely disclosed and its legislation to that end put in unmistakable terms.24 rather than challenge the constitutionality of the racial restrictions on naturalization, the appellant sought to be granted citizenship by being classified as white.25 the nation’s highest court held that the appellant was not white because he was not a member of the caucasian race.26the court opined that the determination of an individual’s whiteness should not be based solely on the categorization of skin pigmentation. according to justice sutherland: manifestly the test [to determine whiteness] afforded by the mere color of the skin of each individual is impracticable, as that differs greatly among persons of the same race, even among anglo-saxons, ranging by imperceptible gradations from the fair blond to the swarthy brunette, the latter being darker than many of the lighter hued persons of the brown or yellow races. hence to adopt the color test alone would result in a confused overlapping of races and a gradual merging of one into the other, without any practical line of separation . . . . [t]he words “white person” were meant to indicate only a person of what is popularly known as the caucasian race.27 the court recognized that the “determination that the words ‘white person’ are synonymous with the words ‘a person of the caucasian race’” would indeed simplify the problem of racial classification for the purposes of naturalization, but would never dispose of it.28 the opinion submitted that the inability to clearly classify individuals based on race would present concern and moreover, the “overlapping of races” and their “gradual merging” would be impractical. justice sutherland observed that: [t]he effect of the conclusion that the words ‘white person’ means a caucasian is not to establish a sharp line of demarcation between those who are entitled and those who are not entitled to naturalization, but rather a zone of more or less debatable ground outside of which, upon the one hand, are those clearly eligible, and outside of which, upon the other hand, are those clearly ineligible for citizenship.29 the court in ozawa swiftly legitimized the practice of making whiteness more exclusive, harder to attain, and consequently more desirable. the legislature had linked citizenship eligibility to the white race, but the court confirmed the exclusivity of the white classification. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 24 id. at 193. 25 id. at 195 (“on behalf of the appellant it is urged that we should give to this phrase the meaning which it had in the minds of its original framers in 1790 and that it was employed by them for the sole purpose of excluding the black or african race and the indians then inhabiting this country.”). 26 id. 27 id. at 197. 28 ozawa v. united states, 260 u.s. 178, 197 (1922). 29 id. at 198. 2012 columbia journal of race and law 155 one year later, in 1923, justice sutherland and the united states supreme court heard the case of united states v. thind.30 the appellant, bhagat singh thind, applied for citizenship in 1920 after having immigrated from the punjab region of india and living in the united states for the better part of seven years.31 mr. thind graduated from the university of california at berkeley and served in the united states military during wwi.32 thind’s initial citizenship application was approved, but a naturalization agent appealed the decision.33 in light of the ozawa decision, thind had reason to believe that his claim would be vindicated. the court in ozawa relied on the alleged science of race to determine that ozawa was not white. by contrast, thind provided evidence from alleged race science, a line of recent anthropological studies that had concluded that indians were white, to support his claim that he was in fact white. the court disagreed. justice sutherland, writing for the court, held that the words “free white person” were words of “common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word ‘caucasian’ only as that word [was] popularly understood.”34 the court concluded that the word caucasian as commonly understood did “not include the body of people to whom the appellee belongs.”35 justice sutherland reasoned for the court that: it is a matter of familiar observation and knowledge that the physical group characteristics of the hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. the children of english, french, german, italian, scandinavian, and other european parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their european origin. on the other hand, it cannot be doubted that the children born in this country of hindu parents would retain indefinitely the clear evidence of their ancestry. it is very far from our thought to suggest the slightest question of racial superiority or inferiority. what we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognizes it and rejects the thought of assimilation.36 here, the court articulated an opinion that almost too carefully avoided an outright declaration that some could never be white. instead, the court professed that common understanding dictated the meaning of “white” and that some could never truly be considered white despite their best efforts. while the court plainly and clearly asserted that its reasoning did not aim to draw a caste of inferiority over a specific people, that reasoning acknowledged not cultural difference, but racial difference. the court failed to address the real issue when it essentially advanced the majoritarian view that the concept of race was a biological manifestation. the underlying issue, which the court neither addressed nor considered, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 30 261 u.s. 204 (1923). 31 roots in the sand: bhagat singh thind, pbs, http://www.pbs.org/rootsinthesand/i_bhagat1.html (last visited jan. 27, 2012). 32 id. 33 lópez, supra note 14, at 207. 34 id. at 214–15. 35 id. at 215. 36 id. 156 life, liberty, and the pursuit of whiteness vol. 2:1 was not whether some groups would be incapable of assimilating into the white race, but whether some groups would ever be truly accepted by the white majority. a. contemporary whiteness through biology and demographics science has proven what millennia of human existence and interaction has successfully covered. the u.s. energy department’s human genome project has concluded that there is no biological or organic makeup that produces different racial compositions. scientists have offered as follows: dna studies do not indicate that separate classifiable subspecies (races) exist within modern humans. while different genes for physical traits such as skin and hair color can be identified between individuals, no consistent patterns of genes across the human genome exist to distinguish one race from another. there also is no genetic basis for divisions of human ethnicity. people who have lived in the same geographic region for many generations may have some alleles in common, but no allele will be found in all members of one population and in no members of any other. indeed, it has been proven that there is more genetic variation within races than exists between them.37 despite these scientific findings and u.s. census bureau projections revealing the imminent shift in majority demographics, the american political complex remains unencumbered. assertions that the end of a white majority would somehow improve race relations, specifically in the united states, are presumptive and poorly imagined. a social structure designed around racial dominance that has survived centuries of modern human civilization will not dissipate in a matter of decades. nevertheless, there are some, like hua hsu of the atlantic, who contend that today’s america is far more complex than the america that had turned on itself over issues of abolition, civil rights, and assimilation.38 hsu suggests, “[w]hiteness is no longer a precondition for entry into the highest levels of public office.”39 he adds that, today, “[t]he son of indian immigrants doesn’t have to become ‘white’ in order to be elected governor of louisiana,” and a “half-kenyan, half-kansan politician can self-identify as black and be elected president of the united states.”40 hsu further contends that, while “as a purely demographic matter” the concept of “white america” may cease to exist within as little as three decades, the cultural influence of “white america” has already ended.41 “instead of the long-standing model of assimilation toward a common center,” hsu observes that, “the culture is being remade in the image of white america’s multiethnic, multicolored heirs.”42 many see this as a positive prospect. in fact, in 1998, then president bill clinton remarked before a gathering of students at portland state university: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 37 human genome project information: genetic anthropology, ancestry, and ancient human migration, u.s. dep’t of energy, http://www.ornl.gov/sci/techresources/human_genome/elsi/humanmigration.shtml (last modified feb. 11, 2010). 38 hua hsu, the end of white america?, the atlantic, jan./feb. 2009, http://www.theatlantic.com/magazine/archive/2009/01/the-end-of-white-america/7208/. 39 id. 40 id. 41 id. 42 id. 2012 columbia journal of race and law 157 today, largely because of immigration, there is no majority race in hawaii or houston or new york city. within five years, there will be no majority race in our largest state, california. in a little more than 50 years, there will be no majority race in the united states. no other nation in history has gone through demographic change of this magnitude in so short a time . . . . [immigrants] are energizing our culture and broadening our vision of the world. they are renewing our most basic values and reminding us all of what it truly means to be american.43 the face of america has changed and will continue to change. however, demographic shifts will not necessarily alter the nation’s politics. white majoritarian influence has molded institutional governance, and for the most part, those who seek to succeed in it must perpetuate the status quo. iii. 2008 presidential election reveals new form of racism contrary to popular belief, the 2008 presidential election, though a transformative moment in american history, was not the watershed moment of racial reconciliation. while it is indisputable that the nation has made extraordinary progress, it has not turned a corner. it has just finally reached an impasse. a. the pursuit of the white vote the results of the election, the manner in which president obama was able to get elected, and the public reaction to the election are all telling of the status quo of american race relations. marc ambinder of the atlantic observes that while obama’s top adviser was persistent in publicly contending during the presidential election that “race doesn’t matter,” behind closed doors, “obama’s campaign worked methodically to woo white voters without alienating black ones—and vice versa.”44 it would be simple to suggest, as ambinder points out, that obama found “a way to break the racial code.”45 what occurred, however, was a much more nuanced confluence of events. the emergence of “massive economic cross-pressures; the country’s slow evolution into a majority-minority polity; the iron grip that democrats have on younger voters; [and] the aging of the white working class,” allowed obama to enter the political scene just as “demographics were beginning to undo the [racial] code anyway.”46 despite his campaign’s overtures to white voters, the president did not win a majority of white voters as a whole, white men, or white women, who are particularly known for leaning democratic on election day.47 the results are not surprising, certainly not when considering the voting trends of the last forty years and the democratic party’s consistent inability to win a majority of the white vote. timothy noah of slate.com observes that the “stubborn refusal of a majority of whites to vote democratic is all about race.”48 for forty years, “whites have made up to seventy-four percent to somewhere north of ninety !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 43 id. 44 marc ambinder, race over?, the atlantic, jan./feb. 2009, http://www.theatlantic.com/magazine/archive/2009/01/race-over/7215/. 45 id. 46 id. 47 timothy noah, what we didn’t overcome, slate (nov. 10, 2008), http://www.slate.com/id/2204251/ (president obama “failed to win a majority of whites (43 percent), or white men (41 percent), or even white women (46 percent).”). 48 id. 158 life, liberty, and the pursuit of whiteness vol. 2:1 percent of all voters.”49 noah points out that jimmy carter was elected by “narrowing to four percentage points the gap between whites voting republican and whites voting democratic.”50 bill clinton managed to narrow the gap even further to two percent.51 it is not at all unusual that both men, former white southern governors, “drew some appeal” from the south where the republican party dominates the white vote.52 lyndon b. johnson would be the last democrat to win a majority of the white vote. after signing the 1964 civil rights act and the 1965 voting rights act into law, johnson is recalled to have said that, “[democrats] have lost the south for a generation.”53 the troubling reality, as noah observes, is that johnson’s prediction has not only come to fruition, but has persisted for more than a single generation.54 noah adds “what johnson didn’t allow himself to think was, ‘we have lost the white vote for a generation.’”55 presidential candidate barack obama may not have won the majority of the white vote to become president, but he did win the election. how he did it offers a model for other minority candidates to follow. the path to national office for minority candidates seems to be one in which the individual must tread lightly: a practice that candidate obama mastered. ralph nader, the 2008 independent candidate for president, accused barack obama “of downplaying poverty issues, trying to ‘talk white’” and appealing to ‘white guilt.’”56 nader’s comments, which the obama campaign denounced as “disappointing,” provide some context for the obama model of appealing to american exceptionalism. nader explained that his belief that obama was trying to “talk white” was evidenced by obama’s failure to address the plight of the poor, which disproportionately affects african americans and other minorities. nader reasoned that: [t]he number one thing that a black american politician aspiring to the presidency should be is to candidly describe the plight of the poor, especially in the inner cities and the rural areas, and have a very detailed platform about how the poor is going to be defended by the law, is going to be protected by the law, and is going to be liberated by the law.57 furthermore, nader stated that obama was attempting to appeal to white guilt by showing the electorate that he was not another “politically threatening african-american politician.”58 nader suggested that: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 49 id. 50 id. 51 id. 52 noah, supra note 47. 53 id. 54 id. 55 id. (emphasis added) 56 m.e. sprengelmeyer, nader: obama trying to “talk white,” rocky mountain news, jun. 25, 2008, http://www.rockymountainnews.com/news/2008/jun/25/nader-critical-of-obama-for-trying-to-talk-white/. 57 id. 58 id. 2012 columbia journal of race and law 159 you appeal to white guilt not by coming on as black is beautiful, black is powerful. basically [obama is] coming on as someone who is not going to threaten the white power structure, whether it’s corporate or whether it’s simply oligarchic. and they love it. whites just eat it up.59 if, as nader suggests, the obama campaign purposely avoided discussing the plight of the poor because it would seem threatening to the majority, signaling a plan to restructure american society, there is reason to believe that the african american democratic nominee for the presidency may not have won the general election had he addressed such issues directly. there has been much written on the implications of obama’s ascendency to the highest office in the land as providing a model for other minorities and people of color. scholars roland fryer and david austen-smith famously argued that one factor in the minority-white achievement gap was the “acting white phenomenon.”60 according to fryer and austen-smith: [some students] have tremendous disincentives to invest in particular behaviors (i.e., education, ballet, etc.) due to the fact that they may be deemed a person who is trying to act like a white person (a k a “selling-out”). such a label, in some neighborhoods, can carry penalties that range from being deemed a social outcast, to being beaten or killed.61 stephen j. dubner, one half of the critically acclaimed authors of the new york times bestseller freakonomics: a rogue economist explores the hidden side of everything, has observed that, if one subscribes to a belief in the existence of the “acting white” effect, then they should also believe in the potential of an “acting obama” effect.62 the cultural and societal breakthrough of obama’s election challenges the notion that for non-whites certain achievements are “off-limits,” that greatness will inevitably elude them. while at the same time, as dubner observes, have the potential of reinforcing stereotypes and identity-centered limitations by evidencing that “if you’re willing to act really white, you get to run the free world.”63 in 2004, clarence page contributed a video essay for pbs’ newshour with jim lehrer where he noted the potential effect of then united stated senate candidate obama: in african american folklore, the sea crab ranks among the dumbest of creatures who also offers a valuable lesson. when you catch a bucket or a basketful, you never have to put a lid on because when one of the creatures tries to get out, the others will just pull it back in. some of our fellow human beings aren't much smarter than that. when they see you working hard to achieve your dreams, they'll make fun of you just for trying. with friends like those, my parents used to say, you don't need enemies. and black people have enough enemies. that message has come back to me a lot lately, like during !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 59 id. 60 stephen j. dubner & steven d. levitt, freakonomics: a rogue economist explores the hidden side of everything 161–62 (2009). 61id. at 161. 62 stephen j. dubner, will there be an “acting obama” effect?, n.y. times blog, nov. 7, 2008, http://freakonomics.blogs.nytimes.com/2008/11/07/will-there-be-an-acting-obama-effect/ (last visited feb. 14, 2012). 63 id. 160 life, liberty, and the pursuit of whiteness vol. 2:1 the democratic national convention [(dnc)], when senate candidate barack obama, the keynote speaker from illinois, talked about what people need to do to help themselves. yes, today's hip-hop generation has basket crabs of its own, eager to put you down for somehow acting white when you try to get ahead, as if blackness means you have to fail. obama, the son of a black father from kenya and a white mother from kansas, has a more positive view of blackness. he wants the rest of us to pass that message on to our kids.64 it was in that year that obama used his first appearance on a national stage to take on the devastating legacy of discrimination’s overwhelming ability to yield self-doubt and self-limitation. obama’s dnc speech revealed the task he foresaw for our most neglected communities: go into any inner-city neighborhood, and folks will tell you that government alone can’t teach kids to learn. they know that parents have to parent, that children can’t achieve unless we raise their expectations and turn off the television sets and eradicate the slander that says a black youth with a book is acting white.65 indeed, obama’s presidency has provided a whole generation with a different perspective on what is possible. its full effect only time and a through historical review will reveal. nonetheless, there is the potential for set back. it is possible, as some scholars and activist prescribe, that this perceived obama effect would compromise value for success, that a wholesale adoption of the status quo can lead one to be tasked with the responsibility of steering the free world with out fundamentally embracing changes. in 1968, presidential candidate robert f. kennedy evoked playwright george bernard shaw when he confessed “[s]ome men see things as they are and say, 'why'? i dream of things that never were and say, 'why not'?"66 this sentiment has proven more difficult for president obama to communicate. he has been accused by some in the black community for not doing enough, for not challenging the institutional limitations they observe. his notable critics include professor cornel west, television host tavis smiley, and professor michael eric dyson to a lessor degree.67 recently, smiley hosted a panel discussion in which one of panelist, roger a. clay, president of the oakland, california-based insight center for community economic development channeled a sense of frustration with the president, observed: i'm extremely disappointed [in obama], more so than i ever thought i could be. i think part of the reason i'm disappointed is because i had hoped for a lot. . . . some of my hope was probably based on unrealistic expectations." the audience erupted in applause. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 64 clarence page, acting white, pbs newshour, sept. 24, 2004, http://www.pbs.org/newshour/bb/entertainment/july-dec04/page_9-27.html (last visited jan. 28, 2012). 65 barack obama, keynote address at 2004 democratic national convention, july 27, 2004, available at http://www.pbs.org/newshour/vote2004/demconvention/speeches/obama.html (last visited jan. 28, 2012) [hereinafter 2004 keynote address]. 66 rfk quotations, john f. kennedy presidential library and museum, http://www.jfklibrary.org/research/ready-reference/rfk-quotations.aspx (last visited jan. 28, 2012). 67 corey dade, obama’s most vocal black critics dial back attacks as election year begins, npr, jan. 13, 2012, http://www.npr.org/blogs/itsallpolitics/2012/01/13/145188135/obamas-most-vocal-black-critics-dial-back-attacks-aselection-year-begins. 2012 columbia journal of race and law 161 clay added, "but because he's black, i still have very high expectations. . . . my biggest disappointment is—and it goes back to leadership—i don't see leadership on the [poverty] issue because i don't see [him] speaking out on the issue. i don't think you go around talking about race, but i do think you have to go around talking about issues that affect black people.68 however, often overlooked by his critics is the fact that the president’s message and often attempts to redefine political accountability and fundamental institutional change is challenged by scores of pundits, politicos, influence peddlers, and citizens. b. a message of change and the opposition that fears it as a model for political maneuvering into national high office, barack obama can provide invaluable lessons that show where the country is headed as it enters an era as a majority-minority polity. his candidacy demonstrates that campaigning as a pluralist who champions the idea of american exceptionalism and touts that in no other country on earth could his story be possible affords one a legitimate chance of winning. his presidency, however, also demonstrates how once the minority candidate becomes the minority executive seeking to institute major reforms that upset the status quo, his favor quickly begins to fade. the emergence of the tea party in america is a poignant example. a once dismissed fringe has mobilized and garnered the attention of a nation. while it would be teleological to simply contend that obama’s approval and job performance ratings are linked to the tea party’s emergence, it is indisputably more than just coincidental. famed political commentator andrew sullivan writing in london’s the sunday times argues, “the demographics tell the basic story: a black man is president and a large majority of white southerners cannot accept that . . . [t]hey grasp conspiracy theories to wish obama – and the america he represents – away.”69 sullivan adds, “white southerners comprise an increasing proportion of the 22% of americans who still describe themselves as republican,” and accordingly the “gop can neither dismiss the crankery nor move past it. the fringe defines what’s left of the republican [center].”70 on october 30, 2008, before a packed missouri gathering, obama proclaimed, “we are five days away from fundamentally transforming the united states of america.”71 this message galvanized the opposition in the first two years of his presidency, its been manipulated to suggest that the president thinks ill of the republic—that he is ashamed of it and seeks to reinvent it. tea party advocates, like former fox news !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 68 id. 69 andrew sullivan, obama still isn’t president in the south: denying the leader’s american birth is just another form of racism, sunday times, aug. 9, 2009, at 8. 70 id. see also brian montopoll, who are the birthers?, cbs news, july 23, 2009, available at www.cbsnews.com/8301-503544_162-5182746-503544.html (quoting marc ambinder who considers the precarious situation in which obama’s challengers find themselves. ambinder argues that the birther phenomenon goes to the heart of the dilemma now facing the republican party, positing that “republican presidential candidates need to figure out how to diffuse angry birthers who are bound to show up and demand their attention.” ambinder suggests if the candidates “give credence to the birthers, they’re not only advancing ignorance but also) betraying the narrowness of their base. if they dismiss this growing movement, they might drive birthers to find more extreme candidates, which will fragment a republican political coalition.”). 71 fundamental transformation, proletariat blog: voice of the american proletariat (mar. 11, 2009), http://proletariatblog.com/2009/03/11/fundamental-transformation/. 162 life, liberty, and the pursuit of whiteness vol. 2:1 commentator glenn beck, have even accused the president of trying to right all of the racial wrongs of america’s past and that he has revealed his “deep-seated hatred for white people or the white culture.”72 iv. “real americans” incite racism with divisive rhetoric for some in the tea party, obama’s presidency is illegitimate. calls for impeachment have been backed by misconceived notions that the president was not born in this country (and therefore not a u.s. citizen) and by accusations that he is not a christian.73 relentless racism and xenophobia have been couched with political rhetoric to imply that this president is not just out of touch, but outright does is not one of us. in october of 2010, the national association for the advancement of colored people (naacp) released a report on the tea party movement and its alarming alignment with racist factions. the report entitled tea party nationalism: a critical examination of the tea party movement and the size, scope, and focus of its national factions, observes that: tea party protests [have] attracted members of white nationalist organizations and networks. as a movement, white nationalism has projected two slightly different visions of white supremacy. one goal is a united states of america in which white and black and other people of color are all resident, but white domination is complete and uncomplicated by civil rights laws and voting rights for people of color. an alternative white nationalist vision is a whites-only republic carved out of the remains of a collapsed and dissected united states of america. hard core white nationalists use terms such as “racial realist” and “self-conscious whites” to distinguish themselves from the majority of white people in this country, including those that simply exhibit racist or prejudiced opinions.74 the naacp’s report adds that tea party nationalism is a “form of american nationalism” that “does not include all americans, and separates itself from those it regards as insufficiently “real americans.”75 as evidence for the aforementioned conclusion, the report points to a tea party nation newsletter article entitled real americans did not sue arizona and hand-drawn tea party rally signs that read, “i am an arrogant american, unlike our president, i am proud of my country, our freedom, our generosity, no apology from me.”76 to be fair, this emergent movement is about much more than just race. for some, there are genuine concerns about excess government spending and philosophical disagreements with what is considered the appropriate size and function of government. what is troubling, however, is that at its base, the tea party movement has made it impractical for many americans to relate to its perhaps nobler intentions. those with their hands on the reins of the movement are steering it with precise calculations. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 72 fox news host says obama is ‘a racist’, associated press, aug. 3, 2009, http://www.msnbc.msn.com/id/32197648/. 73 see david weigel, change they can litigate, slate (dec. 4, 2008, 4:25 pm), http://www.slate.com/articles/news_and_politics/politics/2008/12/change_they_can_litigate.html. 74 devin burghart & leonard zeskind, tea party nationalism: a critical examination of the tea party movement and the size, scope, and focus of its national factions, inst. for research & educ. on human rights 59 (2010), http://www.irehr.org/images/pdf/teapartynationalism.pdf. 75 id. at 68. 76 id. 2012 columbia journal of race and law 163 in an america where it is no longer left to the imagination to wonder what it would be like to have an african american president and where a dramatic shift in demographics is more of a question of when than if, the solution to maintaining the status quo is to thrust forward minority candidates that will not alter or even threaten the establishment. a. 2010 candidates followed obama’s example to distinguish themselves from him the 2010 elections demonstrated that certain candidates have used obama’s strategy to get elected while simultaneously trying to differentiate themselves from him and his politics. beyond the headlines of a republican resurgence is the sudden breakthrough of minority republican candidates who followed the obama model for getting elected, but have convinced the majority that they will not govern or legislate like he does. in south carolina, nikki haley became the first indian american woman elected governor of in the united states.77 in new mexico, susana martinez became the first female hispanic governor in the state and in the country.78 in nevada, brian sandoval became that state’s first hispanic governor.79 in florida, marco rubio rode on the tea party express to become the state’s next united states senator.80 all of these candidates won office thanks to tea party support and the gop party label next to their names.81 this slate of candidates ran on platforms that centered on a pro-life position, small government, opposition to entitlement spending, and strong opposition to illegal immigration.82 they all ran on rejecting president obama’s proposed reforms or, as their supporters put it, the obama administration’s plan to “fundamentally transform the united states of america,” words from the president that struck fear in the hearts of many tea partiers.83 they all, however, put forth their life stories within the context of a larger american narrative, just as obama had done so successfully in his 2008 presidential campaign. unlike obama, they emphasized their belief in the ideal of american exceptionalism, leading the electorate to conclude that these candidates would not dream of attempting to fundamentally change a system that made their candidacies—and personal success stories—possible. the most popular of the 2010 crop of candidates was now-senator marco rubio. the thirtynine-year-old self-proclaimed son of cuban exiles84 has been called the “republican obama.”85 his !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 77 luisita lopez torregrosa, susana martinez, marco rubio and the new latino leadership, politics daily, http://www.politicsdaily.com/2010/11/19/susana-martinez-marco-rubio-and-the-new-latino-leadership/ (last visited jan. 12, 2012). 78 id. 79 id. 80 id. 81 see michael r. blood, tea partiers ascend in many states, salon (july 3, 2010, 1:45 pm), http://www.salon.com/2010/07/03/us_tea_party_next_up/. governor haley was elected with fifty-one percent of the vote. see also jason evans, nikki haley to be state’s first female governor, pickens sentinel, http://www.pickenssentinel.com/view/full_story/10145728/article-nikki-haley-to-be-state%e2%80%99s-first-femalegovernor-?instance=home_news_lead (last visited jan. 12, 2012). 82 blood, supra note 81; evans, supra note 81. 83 see, 2004 keynote address, supra note 65. 84 according to manuel roig-franzia of the washington post, during his senate campaign, rubio appealed to a key constituency in southern florida by proclaiming that he was the “son of exiles.” roig-franzia, however, contends that “a review of documents—including naturalization papers and other official records—reveals that the florida republican’s account embellishes the facts. the documents show that rubio’s parents came to the united states and were admitted for permanent residence more than two-and-a-half years before castro’s forces overthrew the cuban 164 life, liberty, and the pursuit of whiteness vol. 2:1 name is already circulating as a potential vice presidential nominee in 2012.86 like obama, rubio successfully wove together biography and political vision to win his party’s nomination and then the general election. rubio, undoubtedly, not only took a page from the obama campaign playbook, but used the pushback on obama’s presidency to mold his own political rhetoric.87 rubio became an overnight sensation after delivering a stunning speech at the american conservative union’s annual conservative political action conference (“cpac”). rubio found a way to appeal to both the tea party and traditional conservative bases’ adoration of american exceptionalism by avowing that he subscribes to its existence and shares their anguish and disdain for those who not only deny its reality, but also weaken its condition. at cpac, rubio explained: simply put, there’s nothing like america in all the world. and even today with the problems that we face, who would you rather be? which country would you trade places with? just remember, an afterthought, when was the last time that you heard news accounts about a boatload of american refugees arriving on the shores of another country? and yet there have always have been those who haven’t seen it this way. there have always been those that don’t recognize this. they think that we need a guardian class in american government to protect us from ourselves. they think that the freeenterprise system is unfair, that a few people make a lot of money, and the rest of us get left behind. they believe that the only way business can make its money is by exploiting its workers and its customers. and they think that america’s enemies exist because of something america did to earn their enmity.88 rubio would go on to assert that we face problems today because, in 2008, leaders who professed their belief in american exceptionalism won elections.89 he adds that obama and those who were elected with him in 2008 know that the american people would never endorse their vision of america.90 rubio professed: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! government and took power on new year’s day 1959.” manuel roig-franzia, marco rubio’s compelling family story embellishes facts, documents show, wash. post, oct. 20, 2011, http://www.washingtonpost.com/politics/marco-rubioscompelling-family-story-embellishes-facts-documents-show/2011/10/20/giqaavhd1l_print.html. rubio vehemently disagrees with the charge that he has embellished is family history. see luke johnson, marco rubio says parents’ cuba emigration story not embellished: ‘it’s outrageous,’ huffington post, http://www.huffingtonpost.com/2011/10/25/marco-rubio-cuba-exiles-parents-castro_n_1030333.html? (last updated dec. 25, 2011). 85 john b. judis, the republican obama, the new republic (feb. 23, 2010, 12:00 am), http://www.tnr.com/article/politics/the-republican-obama?page=0,1. 86 john swaine, marco rubio follows the barack obama script. so what happens next?, the telegraph, http://blogs.telegraph.co.uk/news/jonswaine/100062054/marco-rubio-follows-the-barack-obama-script-so-whathappens-next/ (last updated nov. 3, 2010). 87 the anti-crist: the newest republican star is following obama’s playbook, the economist (mar. 31, 2010), http://www.economist.com/node/15816852. 88 marco rubio’s cpac speech transcript, wash. post, http://voices.washingtonpost.com/44/2010/02/marcorubios-cpac-speech-the-t.html (last visited jan. 12, 2012). 89 id. 90 id. 2012 columbia journal of race and law 165 [o]ver the last 12 months [the obama administration and the democratic congress] have used a severe economic downturn, a severe recession as an excuse to implement the statist policies that they have longed for all this time. in essence, they are using this downturn as cover not to fix america, but to try to change america to fundamentally redefine the role of government in our lives and the role of america in the world.91 marco rubio has managed to learn from the obama model of high-stakes identity politics—not just in how to win elections, but in how to garner support from the white majority without seeming to pose a threat. the impetus behind obama’s opposition fostered rubio’s and his contemporaries’ national political emergence. the rubio campaign was able to appeal to the white nationalist component of the tea party movement while still gaining support from hispanic voters because his story served as a model of inspiration. his non-threatening agenda (the preservation of the status quo) eased anxiety for many who fear a majority-minority america. as john b. judis of the new republic has observed, rubio concludes his speeches with an appealing thought that carries an “implicit” “incendiary message” that is “softened by the insertion of his biography.”92 that is, “do i want my children to grow up in the country that i grew up in or do i want them to grow up in a country like the one my parents grew up in?”93 that message managed to quell the inevitable anxiety that proffered change produces. a time in where our social ills and inequalities were not the subject of public discourse, a time where those who held the benefit of social political order were not decried or their firm influence threatened, is nostalgically longed for. v. american exceptionalism stifled by nostalgia for a more divisive era today, america is longing for better days, but in doing so, it fails to ask a critical question: whose better days are we longing for? indeed, america has experienced hardships greater than those we face today and has overcome much, but the time has come to become a truly forward-looking people, a people that seek to improve opportunity for all. barack obama’s rise to the presidency has provided proof that america is still a place where all things are possible. what we must fear is that we will become a nation that perpetuates the status quo in the name of american exceptionalism, an america where those who wish to have their voices heard must acquiesce to the current political order. the america that once forced those seeking her liberty, her promise, her citizenship to shed their self-identity and pursue acceptance into the ranks of majority status-holder. the republic’s demographic shift towards a majority-minority population will make little difference if its politics remains unshaken. what is truly exceptional about america is not just that the son of a kenyan farmer named barack hussein obama can become president of the united states or that the self-proclaimed son of cuban exiles can become a united states senator, but that the nation strives towards inclusion and a rejection of its past practices of alienation. america’s “exceptionalism” lies in her ability to confront her inequalities and maintain that a government of the people, by the people, shall always be for all of the people. the nation should find guidance in the words of the last man to win a presidential election with a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 91 id. 92 judis, supra note 85. 93 id. 166 life, liberty, and the pursuit of whiteness vol. 2:1 majority of the white vote94 as it navigates a path forward that reconciles contrasting ideas of american exceptionalism and racial equality. in 2003, president george w. bush gave a speech at goree island in senegal where he observed: by a plan known only to providence, the stolen sons and daughters of africa helped to awaken the conscience of america. the very people traded into slavery helped to set america free. . . . my nation’s journey toward justice has not been easy and it is not over. the racial bigotry fed by slavery did not end with slavery or with segregation. and many of the issues that still trouble america have roots in the bitter experience of other times. but however long the journey, our destination is set: liberty and justice for all.95 america’s journey towards racial equality indeed is not yet over. solace, nonetheless, must be found in her chartering declaration that her purpose will not be abandoned and our collective protection of life, liberty, and the pursuit of happiness will be shouldered from generation to generation. in the early years of this this infant century, discourse, albeit to often overwhelmed by vitriol, remains firmly linked to our most basic promise that we will strive to make our union more inclusive and thus more perfect. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 94 2004 presidential national exit polls, cnn, http://www.cnn.com/election/2004/pages/results/states/us/p/00/epolls.0.html (last visited jan. 12, 2012) (president george w. bush won the 2004 election with 58% of the white vote.). 95 president george w. bush, speech at goree island (july 8, 2003), available at http://teachingamericanhistory.org/library/index.asp?document=1900. microsoft word cjrl kolawole s17 final.docx african immigrants, intersectionality, and the increasing need for visibility in the current immigration debate bolatito kolawole* africans are one of the fastest growing immigrant groups in the united states, yet their presence receives very little attention in public discourse about immigration. in an era where america’s immigration policies have grown increasingly insular, african immigrants are particularly at risk of having measures that historically facilitated their entry into the united states, stripped away without recognition of the benefit they pose to them. this note argues that the intersectional identity of black african immigrants, being black and foreign, renders them effectively invisible in the immigration debate and vulnerable to policies that affect them both due to their blackness as well as their status as foreigners. it proposes that the intersectionality framework can serve as a useful tool to shed light on the unique concerns of african immigrants and create policies that directly address them. part ii of this note provides a background into the history of african immigration in the united states. part iii introduces the theory of intersectionality and demonstrates its applicability in the immigration law context. finally, part iv applies intersectionality theory to explore the unique harms * juris doctor candidate 2017, columbia law school; bachelor of arts 2014, amherst college. the author would like to thank professor christina duffy ponsa for her guidance throughout the note-writing process. the author would also like to thank professor rose cuison villazor for her helpful feedback and assistance in conceptualizing this topic. finally, the author thanks the staff of the columbia journal of race and law for their invaluable editing contributions and the author’s family for their support. 374 columbia journal of race and law [vol. 7:2 that african immigrants face in the current immigration landscape. i. introduction ............................................................ 374 ii. a background of the history of african immigration .............................................................. 378 a. explanations for the low representation of african immigrants in the united states .......... 383 iii. using intersectionality theory to explain low african immigration ............................................... 386 a. applying intersectionality to the immigration law context ................................................................. 391 b. impact of blackness on immigration channels for africans ................................................................ 393 c. the effect of anti-asian policies on african immigration ......................................................... 394 iv. applying intersectional theory to explore the unique harms affecting african immigration 397 a. visa denials, demographic intersectionality, and claim intersectionality ....................................... 397 b. lack of representation in the creation of new policy .................................................................... 399 c. failure to recognize african immigrants makes laws that facilitate their immigration more vulnerable to attack ........................................... 401 d. importance of recognizing african immigrants in the wake of president trump’s executive orders ................................................................... 402 e. failing to recognize the intersectionality of african immigrants warps the immigration discussion ............................................................ 406 v. conclusion ............................................................... 408 i. introduction this note proposes that the intersectional nature of african immigrants, being both black and foreign, makes them particularly vulnerable and subject to invisibility in the united states immigration debate. as a result, policies that have historically aided their immigration, such as the no. 3:373] african immigrants and intersectionality 375 diversity visa program,1 may be attacked without acknowledgement of the effect these policies have had in increasing immigration numbers for african immigrants. at the heart of this invisibility is a failure to equate blackness with foreignness. much of pre-1965 american immigration laws reflected a blatant attempt to bar asian immigrants from entering the united states and maintain the white supremacist racial demographic in the united states.2 conversely, most jim crow laws and the subsequent civil rights legislation that abolished them, primarily addressed the plight of black people in the country.3 this note argues that implicit in these legal trends is the proposition that asian and latino heritage represents foreignness while black heritage, although inferior to white heritage, is domestic. american laws and legal opinions betray the varying ways that society perceives asian difference and black difference. for instance, in justice harlan’s famous dissent in plessy v. ferguson, in which he scathingly critiqued the “separate but equal doctrine,” he also claimed that “[t]here is a race so different from our own that we do not permit those belonging to it to become citizens of the united states. persons belonging to it are, with few exceptions, absolutely excluded from our country. i allude to the chinese race.”4 despite his dissent that argued that black people should not be subject to segregation laws, justice harlan firmly believed in the extreme difference of chinese people and used it to justify their exclusion from citizenship in the united states. 1 the diversity visa program is administered by the department of state under the 1990 immigration act, and provides 50,000 immigrant visas through a lottery to citizens of countries and regions historically underrepresented in the united states immigration process. see generally immigration act of 1990, pub. l. no. 101-649, 104 stat. 4978 (1990). 2 bill ong hing, immigration policies: messages of exclusion to african americans, 16 immigr. & nat’lty. l. rev. 244 (1994). 3 black history month, 141 cong. rec. h. 2041, 2041 (explaining how jim crow laws threatened to prevent black men and women from assimilating into american culture and ushered in the civil rights movements of the 1960s). 4 plessy v. ferguson, 163 u.s. 537, 561 (1896). 376 columbia journal of race and law [vol. 7:2 this apparent contradiction merely reveals the fact that blackness, though frequently perceived negatively in american society, has always occupied a certain level of familiarity in the american racial hierarchy while laws pertaining to asians or latinos reflect an unwavering belief in their foreignness. mae ngai coined the term alien citizenship to describe “persons who are american citizens by virtue of their birth in the united states but who are presumed to be foreign by the mainstream of american culture and at times by the state.”5 this term effectively depicts how american society has historically portrayed asian americans and latinos as a foreign group of people despite their american ties. this presumption of foreignness, regardless of citizenship, serves as the antithesis to the condition experienced by african and black immigrants in general, whose shared ancestry with african americans makes americans automatically view them as citizens of an american underclass. currently, no term exists to describe this inverse to alien citizenship and alternate form of americanization. however, scholars have examined how black immigrants assimilate differently from other immigrant groups due to their shared race with africanamericans.6 this note explores how african immigrants defy the traditional classifications of the domestic and foreign since they are black but not american, and foreign yet not asian or latino. it argues that intersectionality7 theory can serve as a helpful tool to understand the interplay between racial and 5 mae m. ngai, impossible subjects: illegal aliens and the making of modern america 2 (rev. ed. 2014). 6 mary c. waters, black identities: west indian immigrant dreams and american realities 329 (1999). 7 leslie mccall defines intersectionality as “the relationships among multiple dimensions and modalities of social relations and subject formations.” leslie mccall, the complexity of intersectionality, 30 j. women, culture & soc’y 1771, 1771 (2005). no. 3:373] african immigrants and intersectionality 377 ethnic categories, particularly as they concern african immigrants. while scholars have examined various reasons for low african immigration—including cultural and economic barriers, migration within africa, and limitations to current immigration laws—few have examined the role that intersectionality may play in limiting african immigration.8 policies meant to disenfranchise african americans serve to also disadvantage african immigrants. likewise, policies created primarily to affect groups such as asians and latinos have also affected african immigrants despite very little recognition or awareness of their presence as immigrants in the united states. ultimately, immigration policies cannot aid african immigrants as effectively as they should if these immigrants move around the nation invisibly due to their race.9 intersectionality provides a useful framework to recognize the often hidden identity of african immigrants and to develop policies that also acknowledge their existence. although intersectionality has traditionally been used in the content of black feminist theory, this note follows the example of other scholars in demonstrating that this multicategory research paradigm has many advantages for the area of immigration and can shed light on an obscured yet evergrowing immigrant population.10 8 hing, supra note 2 (arguing that united states immigration policies send a message of exclusion to african immigrants and suggesting reform of united states immigration policy, including allowing extra visas to african immigrants to compensate for historical underrepresentation among immigrant groups). 9 see john a. arthur, invisible sojourners: african immigrant diaspora in the united states vii (2000) (providing an in-depth analysis of african migration patterns to the united states and claiming that african immigrants are largely invisible and unknown to many americans); roy simon bryce-laporte, black immigrants: the experience of invisibility and inequality, 3 j. black stud. 31 (1972) (arguing that black immigrants are perhaps the least visible immigrant group in the united states and suffer a double invisibility: first from being black and then also from being black foreigners). 10 see generally ange-marie hancock, when multiplication doesn’t equal quick addition: examining intersectionality as a research 378 columbia journal of race and law [vol. 7:2 first, in part ii, this note goes through a history of african immigration to the united states and demonstrates how africans have historically been underrepresented in their immigration numbers. in part iii, this note will then proceed to introduce the concept of intersectionality as a theory. in part iv, it reveals how one can apply this theory to african immigrants, and then explains the consequences behind failing to recognize diversity within black people in the united states, particularly in the past creation of immigration laws and in light of current developments in immigration law, such as president donald j. trump’s controversial executive orders on immigration.11 this note will conclude by demonstrating how using an intersectional framework to shed light on the unique experience of african immigrants can reshape immigration debates by adding a broader perspective and nuance that can better identify and meet the needs of the diverse immigrant community within the united states. ii. a background of the history of african immigration contacts between the african continent and north america go as far back as the 1500s as a result of the transatlantic slave trade.12 starting from 1619, the first wave of africans settled involuntarily in the united states after being captured from their homelands predominantly paradigm, 5 persp. on pol. 63 (2007), https://www.cambridge.org/core/services/aop-cambridgecore/content/view/8ce8074159111c98ce34da2db7764a90/s1537592707 070065a.pdf/when_multiplication_doesnt_equal_quick_addition_examinin g_intersectionality_as_a_research_paradigm.pdf [https://perma.cc/r92mnwuf] (discussing calls for a consolidated, intersectional research paradigm which encompasses fields such as anthropology, critical race theory, political science, literary criticism, sociology and many more). 11 enhancing public safety in the interior of the united states, 82 fed. reg. 8799 (issued jan. 25, 2017); protecting the nation from foreign terrorist entry into the united states, 82 fed. reg. 8977 (issued jan. 27, 2017). 12 arthur, supra note 9. no. 3:373] african immigrants and intersectionality 379 along the west african coast.13 the slave trade brought between ten to twenty million africans to the united states whose skills as farmers, builders, craftsmen, artisans, and healers proved immensely useful to white settlers and played an integral role in the development of american society and culture.14 today, black people in the united states number 38.9 million and comprise 12.6% of the total population of the united states.15 although blacks have had a long and significant presence within the united states, voluntary migration from africa is still quite a recent phenomenon.16 some of the earliest voluntary african immigrants came from cape verde in the early 1800s.17 these cape verdean immigrants began arriving in new bedford, massachusetts, where they eventually settled, to work as seamen on the new england ports with the commercial whaling industry and as agricultural laborers.18 the twentieth century brought one of the most significant developments in immigration law due to the immigration act of 1924.19 the immigration act of 1924 awarded visas to people from particular nations based on the percentage of americans who traced their ancestry to that 13 id. 14 id. 15 randy caps, kristen mccabe & michael fix, migration policy inst., diverse streams: african migration to the united states 2 (2012), http://www.migrationpolicy.org/sites/default/files/publications/cbiafricanmigration.pdf [https://perma.cc/ju28-dbkw]. 16 the majority of voluntary african immigrants to the united states came toward the end of the twentieth century. id. 17 id. 18 see bill ong hing, african migration to the united states: assigned to the back of the bus, in the immigration and nationality act of 1965: legislating a new america 62 (gabriel j. chin & rose cuison villazor eds., 2015); caps et al., supra note 15. 19 immigration act of may 26, 1924, pub. l. no. 68–139, 43 stat. 153 (1924). 380 columbia journal of race and law [vol. 7:2 country.20 this act served to maintain racial homogeneity within the united states as the proportion of americans descended from eastern and southern europe was smaller than that of those descended from northern and western europe.21 it also had the ulterior motive of effectively barring immigration from asia by discounting all chinese, japanese, and south asian persons as “ineligible to citizenship.”22 a house report clearly articulated the racially discriminatory purpose of the national origins quota, with full recognition of the material progress which we owe to the races from southern and eastern europe, we are conscious that the continued arrival of great numbers tends to upset our balance of population, to depress our standard of living, and to unduly charge our institutions for the care of the socially inadequate. if immigration from southern and eastern europe may enter the united states on a basis of substantial equality with that admitted from the older sources of supply, it is clear that if any appreciable number of immigrants are to be allowed to land upon our shores the balance of racial preponderance must in time pass to those elements of the population who reproduce more rapidly on a lower standard of living than those possessing other ideals. . . . . 20 id. 21 charles j. ogletree jr, america’s schizophrenic immigration policy: race, class, and reason, 41 b.c. l. rev. 755, 760 (2000). 22 mai ngai, the architecture of race in american immigration law: a reexamination of the immigration act of 1924, 86 j. of am. hist. 67, 72 (1999). no. 3:373] african immigrants and intersectionality 381 [the quota system] is used in an effort to preserve, as nearly as possible, the racial status quo in the united states. it is hoped to guarantee, as best we can at this late date, racial homogeneity.23 because most african countries were under european rule for much of the twentieth century, their quota allocation as colonies was minimal at best.24 in fact, the united states recognized the sovereignty of only four african countries, which included egypt, south africa, liberia, and ethiopia.25 these sovereign nations along with the colonial protectorates of french cameroon, british cameroon, south west africa, tanganyika, and togoland, received assigned quotas of 100 immigrants.26 in practice, these colonial allocations simply boosted immigration slots for europeans, while black africans similarly did not benefit from the allocations of white settler controlled south africa.27 with only so many means of entry into the united states under the quota system, one method used by some african immigrants to enter the united states was education.28 throughout the twentieth century, the united states government sponsored students to come to the country for educational purposes.29 olanipekun laosebikan demonstrates how the sponsoring of students could have served as a method of indoctrination and a means for the 23 kevin r. johnson, race, the immigration laws, and domestic race relations: a magic mirror into the heart of darkness, 73 ind. l.j. 1111, 1128 (1998) (quoting e.p. hutchinson, legislative history of american immigration policy, 1798–1965, at 484–85 (1981)). 24 hing, supra note 2, at 240. 25 olanipekun laosebikan, from student to immigrant: the diasporization of the african student in the united states 69 (june 27, 2012) (unpublished ph.d. dissertation, university of illinois at urbanachampaign), http://hdl.handle.net/2142/31922 [https://perma.cc/8xebyyep]. 26 ngai, supra note 22, at 74. 27 id. at 73. 28 bryce-laporte, supra note 9, at 37. 29 laosebikan, supra note 25 at 91, 104–06. 382 columbia journal of race and law [vol. 7:2 united states to expand its sphere of influence around the world, particularly with the rise of communism. 30 some of africa’s most historically prominent leaders including nnamdi azikiwe, nigeria’s first president, and ghana’s first president kwame nkrumah obtained a degree in the united states during this quota period.31 one important consequence of the immigration act of 1924 was that it designated student visas as a non-immigrant status.32 this led the united states government to consider students as passing though the united states for their education, and consequently, did not allow them to settle or immigrate on their student visa.33 one phenomenon that necessarily arose from this restriction was that of nonreturning. laosebikan defines this as a method that african students used in order to stay in the united states and eventually change their status to, at best a permanent residency or another form of immigrant visa category.34 the immigration and nationality act of 1965 marked a sweeping change in united states immigration law that reflected the civil rights climate of the period. instead of basing immigration numbers on race and national origin, the new immigration act allowed immigrants to enter based on their family connections and professional qualifications.35 this new policy prioritized family reunification and the skills immigrants brought with them that could potentially benefit american society. most notably, it eliminated the blatant 30 olanipekun laosebikan, from student to immigrant: the diasporization of the african student in the united states 69 (june 27, 2012) (unpublished ph.d. dissertation, university of illinois at urbanachampaign), http://hdl.handle.net/2142/31922 [https://perma.cc/8xebyyep]. 31 id. 32 immigration act of may 26, 1924, pub. l. no. 68–139, 43 stat. 153 (1924) (section 4(e) lists students of at least fifteen years of age as “nonquota immigrants.”). 33 id. at 2. 34 laosebikan, supra note 25 at 119. 35 immigration and nationality act of 1965, pub. l. no. 89–236, 79 stat. 911 (1965) (codified as amended in scattered sections of 8 u.s.c.). no. 3:373] african immigrants and intersectionality 383 racial injustice present within the national origins act, as it finally lifted the ban on asian immigration.36 before 1965, africans made up one percent of the total immigrant population.37 with the passage of new immigration reforms that eliminated national origin quotas and allowed immigrants to arrive through family reunification channels, africans now constitute 2.3 percent of immigrants.38 the diversity visa program, which was a 1994 implementation of the 1990 immigration act, is another key immigration measure that greatly facilitated african immigration.39 it provided 55,000 immigrant visas to citizens of countries and regions that were historically underrepresented in the united states immigration process. additionally, the 1980 refugee act broadened the scope of forced migrants entering the united states and facilitated african immigration.40 refugees from nations such as liberia, somalia, sudan, eritrea, and ethiopia, took advantage of this legislation to build new lives in the united states.41 a. explanations for the low representation of african immigrants in the united states although african immigration increased by over one percent post-1965, african immigrants continue to be highly underrepresented as a voluntary immigrant group.42 there are many arguments that exist to explain the historically low presence of african immigrants in the united states. perhaps 36 the 1965 act’s family reunification system provided annual percountry quotas of 20,000 for countries of the eastern hemisphere, including asia, europe, and africa. hing, supra note 2, at 246. 37 hing, supra note 2, at 240. 38 id. at 240. 39 hing, supra note 18, at 61. 40 refugee act, pub. l. no. 96–212, 94. stat. 102 (1980). 41 caps et al., supra note 15 at 7. 42 hing, supra note 8, at 240. 384 columbia journal of race and law [vol. 7:2 the obvious and most striking factor that disincentivized potential african immigrants from immigrating to the united states was slavery.43 until congress banned the african slave trade in 1807, the overwhelming majority of african migration to the united states was involuntary.44 furthermore, people of african descent still bore the threat of becoming enslaved until the abolishment of slavery in 1865.45 with the passage of the black codes in the nineteenth century,46 which effectively criminalized black life and evolved into the jim crow laws of the twentieth century, it was foreseeable that potential african migrants would have considered the united states to have been a less than ideal place to settle as a black person. some scholars identify slavery and the legalization of black racial oppression in america as one reason why there was no need for an explicit exclusion act towards peoples of african descent, as was the case of the chinese exclusion act of 1882 for chinese immigrants.47 aside from the decidedly hostile climate that the united states posed to africans throughout much of its history as a nation, conditions within africa can also explain the historically low numbers of african immigrants to the united states. until the mid-twentieth century, for instance, much of the african continent was colonized and under the rule of various european countries.48 this created a situation in which only the very elite and privileged of africans could have had the means to travel.49 moreover, if such individuals wanted to travel, due to familiarity and the previously discussed racial climate in the united states, europe was 43 id. at 257. 44 caps et al., supra note 15 at 1. 45 u.s. const. amend. xiii, § 1. 46 the black codes were enacted in many southern states in 1865 and 1866 to restrict the freedoms of black people, including the right to own land. see generally black history month, 141 cong. rec. h. 2041, 2056. 47 hing, supra note 2, at 244–45. 48 id. at 240. 49 id. no. 3:373] african immigrants and intersectionality 385 often a more favorable option to these african immigrants than the united states.50 even migrants such as students who came to the united states during colonization, would have to first stop in their colonizer’s country and pick up their passports, before they could proceed to the united states.51 inconveniences such as these would have greatly contributed to making europe a more ideal destination for african immigration. although the existence of slavery, colonization, and resultant desirability of europe as a migration destination all have contributed to the low incidence of voluntary african immigration to the united states, the fact remains that united states immigration law has historically failed to create meaningful opportunities for africans.52 bill hing articulates various reasons for low african immigration,53 but does not suggest how intersectionality and the fact that african immigrants are both black and foreign can explain how immigration policies have affected them in unique ways. for instance, hing describes how the family reunification focus of the 1965 immigration act provided little benefit to african immigrants since they did not have an established presence in the united states.54 although he explains that there is a need to come up with policies that will better serve african immigrants, he does not address the lack of recognition of africans as a distinctive group of immigrants in american public consciousness.55 for a law to address a population, it must first recognize whom it serves. asians were the primary targets of racially discriminatory immigration laws for much of american history and as a result, the 1965 immigration act primarily addressed those 50 id. at 251–53. 51 laosebikan, supra note 25. 52 hing, supra note 2, at 240. 53 id. at 244–61. 54 id. at 240–42. 55 id. at 244–61 (listing five explanations for low african immigration which include 1) a history of exclusion; 2) international migration within africa; 3) europe as an immigration option; 4) cultural, economic, and institutional barriers; and 5) limitations of the current immigration laws). 386 columbia journal of race and law [vol. 7:2 wrongs. although some africans benefited from these reforms, these benefits were negligible because the laws were not intended for them. as a result of their blackness and foreignness, policies meant to disenfranchise african americans ultimately also disadvantaged african immigrants. likewise, because of their status as immigrants, policies created for groups such as asians and latinos have also affected african immigrants despite very little recognition or awareness of their presence as immigrants in the united states. thus, immigration laws benefit african immigrants by proxy, since their existence is subject to nonrecognition and invisibility. intersectionality theory helps shed light on invisible groups and better tailor policies to these groups. iii. using intersectionality theory to explain low african immigration intersectionality is a framework that considers how various categories of oppression—such as race, gender, and sexual orientation—can work together or “intersect” to produce social inequality and define an individual’s identity in a unique way.56 intersectionality theory seeks to reveal how using a traditional single characteristic approach to analyzing discrimination can disadvantage people or groups who occupy multiple characteristics simultaneously. the concept of intersectionality arose in the 1980s in the black feminist movement largely in response to the perceived whiteness of feminist legal theory.57 scholar kimberlé williams crenshaw coined the term 56 leslie mccall defines intersectionality as “the relationships among multiple dimensions and modalities of social relations and subject formations.” leslie mccall, the complexity of intersectionality, 30 j. women, culture & soc’y 1771, 1771 (2005). 57 aisha nicole davis, intersectionality and international law: recognizing complex identities on the global stage, 28 harv. hum. rts. j. 205, 209 (2015). no. 3:373] african immigrants and intersectionality 387 “intersectionality” in a groundbreaking 1989 article.58 in this work, crenshaw argues that a “single axis” framework for discrimination cases that focuses on either race or sex serves to erase black women since they are at the cross section of these two categories.59 she describes how courts typically view discrimination cases through the lens of the most privileged groups within each category.60 in the context of racial discrimination, this means that courts view black men as the primary victims, while in the context of gender, they look to discrimination against white women. however, crenshaw argues that this one-dimensional view of discrimination renders black women invisible because race and gender intersect in ways to produce unique forms of disadvantage in their experiences. crenshaw considers three title vii cases, degraffenreid v. general motors,61 moore v. hughes helicopter,62 and payne v. travenol63 to demonstrate the methods in which the law restricts attempts by black women to recover in discrimination cases because of the intersectional ways in which discrimination occurs in their lives. in degraffenreid, the court refused to acknowledge that race and gender could operate simultaneously to uniquely disadvantage black women in a company’s seniority system64 while, in moore65 and payne,66 the court viewed black women as so distinct from black men and white women that they could not represent either group in class action suits based on either race or sex discrimination. crenshaw’s analysis exposes how black women’s ability to secure justice for their 58 kimberlé williams crenshaw, demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics, u. chi. legal f. 139, 140 (1989). 59 id. at 140. 60 id. 61 degraffenreid v. g.m. assembly div., 413 f.supp. 142 (e.d. mo. 1976). 62 moore v. hughes helicopter, 708 f.2d 798 (5th cir. 1982). 63 payne v. travenol, 673 f.2d 798 (5th cir. 1982). 64 degraffenreid, 413 f.supp. at 144. 65 moore, 708 f.2d at 480. 66 payne, 673 f.2d at 811. 388 columbia journal of race and law [vol. 7:2 unique discrimination is severely limited by their inability to belong to the fixed categories of race and gender that the law prescribes. in her book alchemy of race and rights, critical race theorist patricia williams implies that this rigid characterization is a fundamental trait of american jurisprudence.67 she details three features of “theoretical legal understanding” as: 1. the hypostatization of exclusive categories and definitional polarities, the drawing of bright lines and clear taxonomies that purport to make life simpler in the face of life’s complication; 2. the existence of transcendent, acontextual, universal legal truths or pure procedures; [and] 3. the existence of objective, “unmediated” voices by which those transcendent, universal truths find their expression. judges, lawyers, logicians, and practitioners of empirical methodologies.68 the concept of intersectionality lies in direct contrast to williams’ description of american theoretical legal understanding as it rejects rigid categorization, casts doubt on the universality of racial and gender understandings in society, and implicitly claims that voices outside of the standard legal authorities are worthy of recognition. although the term “intersectionality” originated over twenty years ago in the context of black feminist legal theory, current legal scholarship has explored the types of methodologies that characterize intersectional research as its own paradigm that stands in contrast to traditional unitary 67 patricia j. williams, the alchemy of race and rights (1991). 68 id. at 8–9. no. 3:373] african immigrants and intersectionality 389 approaches to conceptualizing difference. scholar ange-marie hancock, for example, defines intersectionality as an approach that incorporates “previously ignored and excluded populations into preexisting frameworks to broaden our knowledge base regarding traditional questions of political science.”69 in order to reveal how intersectionality can serve as a normative theory hancock suggests that intersectionality proceeds under six key assumptions: 1. there exists more than one category of difference; 2. the relationship among the categories is an open empirical question; 3. the categories contested are enforced at the individual and institutional levels; 4. each category of difference has withingroup diversity that sheds light on the way we think as groups as actors in politics and on the potential outcomes of any particular political intervention; 5. intersectional research project requires integrative analysis rather than adding together mutually exclusive analysis; and 6. requires attention to both empirical and theoretical aspects.70 an important aspect of hancock’s assumptions reflected most specifically in the fifth assumption, is the idea that intersectional analysis does not merely add together categories and expect equal outcomes from each category. for instance, in the context of race and gender, one cannot predict that race and gender will operate equally in a black woman’s experience of discrimination. crenshaw explains that “black women sometimes experience discrimination in ways similar to white women’s experiences; sometimes they share very similar experiences with [b]lack men . . . [a]nd sometimes, 69 ange-marie hancock, intersectionality as a normative and empirical paradigm, 3 pol. & gender 248, 248 (2007). 70 id. at 251. 390 columbia journal of race and law [vol. 7:2 they experience discrimination as [b]lack women—not the sum of race and sex discrimination, but as [b]lack women.”71 rather than simply adding categories together, intersectionality exposes the causal complexity between concepts.72 in order to apply intersectionality to other contexts, scholars have attempted to devise a distinct methodology for this type of cross-categorical research. for instance, leslie mccall describes three different approaches to the study of intersectionality.73 the first approach, anticategorical complexity, deconstructs analytical categories based on the assumption that society is too complex to fit into fixed categories which ultimately simplify inequities within society.74 in the second approach, intercategorical complexity, scholars use existing categories to document relationships of inequality among social groups.75 finally, the intracategorical complexity approach rejects existing categories like the anticategorical approach but focuses on the individuals who are neglected at the points of intersection of these categories.76 the intracategorical complexity approach describes the inaugural work in intersectionality that crenshaw used to coin the term.77 in addition to a variety of approaches which form a methodology for studying intersectionality, there also exists various methods to describe the type of discrimination against intersectional groups that occurs within the law. for instance, some scholars have suggested that there are two distinct processes through which people face intersectional 71 crenshaw, supra note 58, at 149. 72 hancock, supra note 69, at 251. 73 mccall, supra note 7. 74 id. at 1773. 75 id. 76 id. 77 mccall, supra note 7, at 1773. no. 3:373] african immigrants and intersectionality 391 subordination through the court system.78 the first type of process, demographic intersectionality, describes a type of inequality that occurs in litigation where the courts are the site of intersectional disadvantages or discrimination. alternatively, the second type of process, claim intersectionality, describes a situation in which the law does not adequately provide redress for the intersectional discrimination that occurs in the labor market.79 crenshaw’s description of the plaintiffs in degraffenreid, whose claim was rejected because of the lack of a “black women” class, falls squarely within the definition of claim intersectionality.80 this is because the plaintiffs alleged that they experienced discrimination in the workplace based on two characteristics—race and gender—despite the fact that this type of discrimination was not recognized by the law.81 a. applying intersectionality to the immigration law context although one predominantly associates intersectionality with the study of women of color, some scholars have attempted to broaden the theory from a contentspecific exercise to an empirical research paradigm that can answer new questions and generate strategies for political change.82 for example, hancock argues that intersectionality can answer important political science questions concerning how distributive justice, power, and government function in society. immigration law is one area where intersectional research can have a positive impact. because immigration 78 rachel kahn best et al., multiple disadvantages: an empirical test of intersectionality theory in eeo litigation, 45 l. & soc’y rev. 991 (2011). 79 id. at 993. 80 id. 81 id. at 994. 82 hancock, supra note 69, at 249. 392 columbia journal of race and law [vol. 7:2 addresses questions of race, gender, and outsider status, it is an inherently intersectional terrain.83 in her book, impossible subjects, mai ngai reveals how immigration policy not only dictates who receives citizenship and residency rights, but it also racializes groups.84 she explains how immigration policy is “constitutive of americans’ understanding of national membership and citizenship, drawing lines of inclusion and exclusion that articulate a desired composition—imagined if not necessarily realized—of the nation.”85 ngai argues that immigration policy reflects important ideas about who belongs in america and who does not. the majority of her work focuses on how this racialization has historically affected chinese and latino immigrants in contrast to their white counterparts. to illustrate, mai ngai references the 1924 immigration act and argues that, while immigrants from europe gained a common white identity upon entering the united states, “chinese, mexicans and filipinos—acquired ethnic and racial identities that were one and the same. the racialization of the latter groups’ national origins rendered them unalterably foreign and unassailable to the nation.”86 the 1924 national origins quota system rendered the ethnicities of asian and latino immigrants in a permanently foreign state despite their ties to america. ngai uses the term alien citizenship to describe “persons who are american citizens by virtue of their birth in the united states but who are presumed to be foreign by the mainstream of american culture and at times by the state.”87 the very fact that african immigrants move almost invisibly through immigration law can be more than likely 83 peter margulies, asylum, intersectionality, and aids: women with hiv as a persecuted social group, 8 geo. immigr. l.j. 521, 522–23 (1994). 84 ngai, supra note 5. 85 id. at 5. 86 ngai, supra note 22, at 70. 87 ngai, supra note 5, at 2. no. 3:373] african immigrants and intersectionality 393 attributed to their condition of being both black racially, yet foreign as far as their ethnic or national identity. just as crenshaw argues that black men and white women are the primary subjects in the context of race and sex discrimination respectively, so too in the immigration space are asians and latinos perceived primarily as foreigners regardless of their citizenship, while black people, despite facing discrimination, are primarily assumed to be american citizens.88 this idea bears interesting consequences for a person who is both black and foreign. b. impact of blackness on immigration channels for africans intersectionality theory can provide a helpful means of understanding how african immigrants exist and, at times, experience both their racial and national identity. for instance, many of the restrictions on african immigration converge with limitations on the rights of native-born african americans. for instance, the united states supreme court’s 1857 dred scott decision, which prevented persons of african descent from becoming citizens, shut out foreign as well as native-born blacks from american citizenship.89 this time period is significant because even as far back as the early nineteenth century, cape verdean immigrants began arriving to work as seamen on the new england ports.90 the immigration act of 1924 is another instance in which african immigrants were disenfranchised through regulations meant for african americans. although the law did not explicitly target african immigrants, their status as both black and african served to disadvantage them in an indirect manner. for example, because the law created quotas based on the current u.s. inhabitants descended from the foreign region in question, and african americans were not counted for the purposes of awarding quotas to foreign 88 ngai, supra note 22, at 70–72. 89 scott v. sandford, 60 u.s. 393, 393–94 (1857). 90 see caps et al., supra note 15 at 2. 394 columbia journal of race and law [vol. 7:2 nations, african countries could not receive a quota allotment despite the large numbers of african descendants already in the united states. had african americans been counted in the quota allotment, african nations would have received nine percent of available immigration slots and european nations would have received 13,000 fewer slots.91 although it was arguably impossible to determine exactly which part of africa descendants of enslaved africans originated from, had the quota system truly been about equating immigration numbers with national origins, quota positions could have been allocated to continental africans, regardless of their precise national origin. nevertheless, determining true national origin was never the goal of this act. instead, maintaining white supremacy and writing racial hierarchies into immigration law appeared to be the underlying objective of the legislation. in order to ensure this outcome, black people in the united states could not be accounted for, thereby limiting the immigration opportunities of their foreign african counterparts. c. the effect of anti-asian policies on african immigration just as policies concerning african americans affected african immigrants, so too have many immigration policies that targeted asians.92 even ostensibly positive immigration policies for african immigrants, in fact, arose from a desire to exclude asian immigrants. for instance, the naturalization law of 1870 remains an extremely significant development in the history of african immigration as it allowed for the naturalization of “aliens of african nativity and persons of african descent.”93 the congressional records from debates 91 ngai, supra note 22, at 72. 92 the chinese exclusion act of 1882 prohibited the immigration of all chinese laborers, pub. l. no. 47–126, 22 stat. 58 (repealed 1943). likewise, the quota system of the 1924 immigration act deemed all chinese, japanese, and south asians as persons “ineligible to citizenship.” pub. l. no. 68–139, 43 stat. 153 (amended in 1965). 93 naturalization act of 1870, 16 stat. 254. no. 3:373] african immigrants and intersectionality 395 at the time demonstrate the various arguments that led to the passage of this bill.94 a grant of naturalization to foreign blacks came as a result of most senators’ reluctance to grant that same right to chinese immigrants.95 they painted african immigrants as a model group that stood in stark contrast to the unwanted chinese. a new york times editorial even described how bringing in additional african immigrants would provide valuable labor in southern states such as mississippi.96 ironically, senator warner, who proposed the amendment that gave naturalization privileges to foreign africans, did not contemplate immigrants from africa in his proposal.97 instead, the debate demonstrates that his focus lay more with immigrants from latin america who were of african descent.98 some scholars contend that allowing naturalization for foreigners of african descent arose from the lack of significant populations of this group immigrating to the united states, in contrast to the chinese, as well as the idea that few african immigrants would actually take advantage of the act.99 it is telling that this facially beneficial change in immigration law likely arose without people from the actual continent in mind and instead as a way to justify withholding the right of citizenship from an unwanted group. the naturalization law of 1870 is just one of many ways in which immigration law has affected african immigrants without actually targeting them as a distinct group. in some cases, the indirect impact is not always positive. for instance, the 1965 immigration act helped 94 cong. globe, 41st cong., 2d sess. 5155 (1870). 95 see laosebikan, supra note 25, at 42; best et al., supra note 78. 96 laosebikan, supra note 25, at 44. 97 id. 98 id. 99 id. (“the final decision to include foreign africans as one of the two races eligible for naturalization is likely influenced by the relative absence of significant populations of foreign persons of african descent and the perception by senator warner and others that few african immigrants would ever take advantage of this act.”). 396 columbia journal of race and law [vol. 7:2 remedy the asian exclusionary policies that had previously characterized united states immigration law through its family reunification and skill-based focus. although it led to significant gains in asian and latino immigration, it did little to impact african immigration. to illustrate, asian and latino groups saw an immediate rise in immigration with the passage of the 1965 immigration act. between 1961 and 1970, latin american immigration rose from fifteen to thirty-nine percent of the total immigrating population.100 likewise, asian immigration increased to thirteen percent of the total immigrating population, and by 1981, thirty-three percent of immigrants were coming from asia.101 despite the clear increase in asian and latino immigration numbers, the effects on african immigration were negligible at best. law professor bill hing describes how the 1965 law did little to facilitate african immigration from african countries.102 this is because of the 1965 law’s focus on family reunification, which required immigrants to have a family connection before arriving in the united states. this meant that the law simply reinforced the low numbers of groups, such as africans, who were historically underrepresented as immigrants in the nation. for instance, in 1990, only 9,316 africans immigrated to the united states using the immediate relative category, which accounts for three percent of the total.103 figures such as this meant that african countries did not come close to taking advantage of the 20,000 visas available to them under the family and occupational categories after 1965.104 100 walter jacob, diversity visas: muddled thinking and pork barrel politics, 6 geo. immigr. l.j. 297, 303 (1992). 101 id. 102 hing, supra note 2. 103 id. 104 hing, supra note 18. no. 3:373] african immigrants and intersectionality 397 as black people, african immigrants have historically been vulnerable to legislation meant to disenfranchise african americans. at the same time, their status as immigrants also meant that immigration policy has affected them in unique ways. due to their historic underrepresentation in immigration, the family reunification policies that characterized the 1965 immigration reforms did little to benefit african immigrants as they primarily targeted asians and latinos. the above discussion demonstrates how the intersectional identity of african immigrants has historically contributed to their low numbers in the united states. iv. applying intersectional theory to explore the unique harms affecting african immigration a. visa denials, demographic intersectionality, and claim intersectionality principles from intersectionality theory help in understanding the present challenges african immigrants face as a result of their dual identity. african immigrants are vulnerable to both demographic intersectionality and claim intersectionality, which are the two types of intersectionality issues that arise in the legal context.105 demographic intersectionality occurs when discrimination or stereotyping targets people who occupy two or more demographic categories.106 instances of demographic intersectionality occur in the discrimination faced by many potential african immigrants with united states consulates through visa denials.107 the united states consulate has been known to provide guidelines to employees detailing how certain groups, such as nigerians, are more prone to fraud.108 105 best et al., supra note 78. 106 id. at 994. 107 id. 108 olsen v. albright, 990 f. supp. 31 (1997) (holding that policies instructing adjudicators of nonimmigrant visas to follow fraud profiles 398 columbia journal of race and law [vol. 7:2 this categorization makes nigerians more susceptible to visa denial than europeans and even some asian immigrant groups.109 although this designation can be viewed simply as a question of nationality, upon further scrutiny, the lines between race and nationality are quite blurred. for example, in olsen v. albright, the court described evidence of manuals which detailed how certain areas in brazil were more prone to fraud than others.110 notably, these fraud-prone areas were also the areas in brazil with a high concentration of black brazilians. officers were instructed to regard anyone from these areas as suspect unless older or well-traveled.111 olsen demonstrates how race and nationality function together within the content of immigration to produce discrimination. attempts to delineate where racial discrimination ends and nationality discrimination begins prove futile when dealing with immigrants who are both black and foreign. in the case of nigerians and black brazilians, one could characterize their unequal treatment in visa applications as simply a product of fraudulent behavior. yet if predominantly white consulate officers look upon black visa applicants and automatically view them as non-trustworthy and criminal, then there most certainly exists a racial aspect to the discrimination which is intertwined in their nationality. in addition to demographic intersectionality, african immigrants are also vulnerable to claim intersectionality. united states v. okoronkwo concerned five defendants convicted of filing false income taxes.112 one of the based on factors such as race or national origin constituted unlawful discrimination). 109 id. at 34 (“according to consular section head patricia murphy: ‘another body of guidelines is not post-specific but nationality-specific[.] for example, filipinos and nigerians have high fraud rates, and their applications should be viewed with extreme suspicion, while british and japanese citizens rarely overstay, and generally require less scrutiny.’”). 110 olsen v. albright, 990 f.supp. at 34. 111 id. at 33. 112 united states v. okoronkwo, 46 f.3d 426 (1995). no. 3:373] african immigrants and intersectionality 399 defendants, ezinwa, claimed the district court failed to properly conduct voir dire since it did not thoroughly question jurors about prejudice against the nigerian nationality of all but one of the defendants.113 the court rejected this argument on the basis that the constitution does not require questioning prospective jurors about racial or ethnic bias unless there are special circumstances.114 despite the defendant’s contention that his case involved special circumstances due to the flood of fraud cases involving nigerians, the court maintained that special circumstances involved a crime of violence. furthermore, the jurors had been asked to take into consideration the defendant’s race, nationality, or “unusualsounding names.”115 okoronkwo demonstrates a challenging situation in which a potentially glaring site of difference in the form of stereotypes associated with nigerians could have played a role in juror decisions, yet the court chose not to address potential bias despite noting the defendants’ “unusual names.” it is very possible that the defendants were also impacted by their black skin color, yet the combination of both racial and national bias was not deemed sufficient enough for the court to recognize. b. lack of representation in the creation of new policy the invisible state of african immigrants bears important consequences for the creation of new policy that has the potential to increase their immigration. as discussed earlier, the family reunification-centered policies that characterized the 1965 immigration act did not significantly benefit african immigrants, whose immigration numbers were too small and recent to have an established family presence within the united states to help them take advantage of such reunification policies. africans have instead benefited from the diversity visa, which was passed 113 id. at 433. 114 id. at 444. 115 id. at 434. 400 columbia journal of race and law [vol. 7:2 through the 1990 immigration act116 as well as the refugee act.117 despite how the diversity act has served as an entry point for africans, the primary intended targets for its inception were irish and italian immigrants.118 in fact, during the lobbying for the diversity visa, representatives of african immigrants were absent from the floor.119 in response, senator edward kennedy’s office contacted members of the congressional black caucus to seek support for the diversity provisions.120 however, the congressional black caucus took no position on the issue as they felt that it was not particularly damaging to the black community.121 this exchange demonstrates how the invisibility and lack of representation of african immigrants plays out in politics and negatively affects their influence on immigration law. this situation also reveals how having an intersectional identity that is often mistaken with that of an american group can also disadvantage african immigrants. here, senator kennedy assumed that the congressional black caucus could represent african immigrants. nevertheless, given the american citizenship of native black americans, they saw nothing to gain through taking a position on immigration policy. thus, similar to examples of how black women could not seek relief based on race or gender, african immigrants’ interests were not being met in lobbies representing immigrants, nor could they be met in domestic black groups such as the congressional black caucus. this example demonstrates the importance of identifying the uniqueness of the black and foreign identity that african immigrants experience and how these identities have the 116 immigration act of 1990, pub. l. no. 101–649, 104 stat. 4978 (1990). 117 refugee act, pub. l. no. 96–212, 94 stat. 102 (1980). 118 jacob, supra note 100, at 298. 119 id. at 323. 120 id. at 324. 121 id. no. 3:373] african immigrants and intersectionality 401 power to limit the creation of new policy that takes african immigrants’ interests into account. c. failure to recognize african immigrants makes laws that facilitate their immigration more vulnerable to attack the invisibility of african immigrants also has a negative impact when the benefits africans derive from certain immigration policies go unnoticed. this becomes particularly important when such policies are under attack. on february 13, 2017, for instance, senator tom cotton of arkansas and senator david perdue of georgia introduced the “reforming american immigration for strong employment act,” or the “raise act,” which eliminated the diversity visa program.122 bills such as these bring many arguments against the diversity visa to the forefront. for instance, some argue that the lottery is susceptible to fraud and could also serve as a way for terrorists to enter the united states.123 while these arguments betray very racialized views of who or what serve as a threat to the united states, other arguments criticize the diversity visa’s failure to carry out its purported mission of increasing the diversity of those who immigrate to the united states.124 in fact, some scholars have gone so far as to term the diversity visa “anti-diversity” because of its original intention to increase immigration from europe.125 this 122 s. 354, 115th cong. (2017) (the bill also seeks to reduce the number of family-sponsored immigrants, replacing these programs with nonimmigrant visas, and limit presidential discretion in admitting refugees). 123 anna o. law, the diversity visa lottery: a cycle of unintended consequences in united states immigration policy, 21 j. am. ethnic hist. 3 (2002). 124 andowah a. newton, injecting divesity into u.s. immigration policy: the divesity visa program and the missing discourse on its impact on african immigration to the united states, 38 cornell int.'l l.j. 1049, 1050 (2005). 125 id. 402 columbia journal of race and law [vol. 7:2 perceived need to increase european immigration arose as lobbyists felt that americans of european descent had been in the united states for too long a period of time to benefit from the family reunification centered policies that the 1965 immigration reforms brought.126 at the same time, the diversity visa explicitly prevented regions which had benefited from family reunification policies such as asia and latin america from entering the lottery.127 as a result of these realities, some view the diversity visa as simply an attempt to restore the demographics of the country to its pre1965 state and counter the influx of asian and latino immigrants that 1965 immigration reforms allowed.128 while this argument is valid, eliminating the diversity visa based on its apparent european preference ignores the fact that it is one of the main sources of entry for many african immigrants. unlike asian and latino immigrants, african immigrants often did not have family members in the united states to benefit from the reunification policies of the 1965 immigration reform. thus, the diversity visa’s existence becomes all the more imperative for african immigrants’ access to immigration compared to many other groups. this situation suggests that the analysis of the effectiveness of immigration laws has to occur in a more nuanced fashion that takes into account the existence of more obscure groups such as african immigrants. d. importance of recognizing african immigrants in the wake of president trump’s executive orders president donald j. trump’s 2017 executive orders provide a helpful context for revealing the ways in which the intersectional identity of african immigrants renders them uniquely vulnerable in the current political climate. specific 126 see jacob, supra note 100 at 308. 127 see newton, supra note 124 at 1054. 128 see, e.g., jacob, supra note 72, at 299 (discussing congressional concern over the rise of non-english-speaking immigrants from asia and latin america after the 1965 act). no. 3:373] african immigrants and intersectionality 403 provisions in his newly signed executive order may pose a substantial risk to the future status of african immigrants in the united states. these provisions include the prioritization of deportations for those with criminal charges,129 the elimination of the visa interview waiver program,130 the temporary suspension of entry through refugee visas131 and the broad-brush painting of immigrants as prone to fraudulent behavior.132 on january 25, 2017, president trump signed into law an executive order entitled “enhancing public safety in the interior of the united states.”133 this order established priorities for removal of undocumented immigrants, disqualified sanctuary cities from federal grants and made a public comprehensive list of criminal actions committed by aliens available to the public.134 section 5 of the order prioritizes deportation for those who “have been charged with any criminal offense, where such charge has not been resolved” or “have committed acts that constitute a chargeable criminal offense.”135 while this provision could seem insignificant and even reasonable to some, in reality, it poses a unique risk to african immigrants. black people are far more likely than any other demographic in the united states to be arrested, convicted, and imprisoned in the criminal justice system.136 in fact, black people are arrested at 2.5 times the rate of white people.137 this criminalization of blackness even manifests 129 enhancing public safety in the interior of the united states, 82 fed. reg. 8799 (issued jan. 25, 2017). 130 protecting the nation from foreign terrorist entry into the united states, 82 fed. reg. 8977 (issued jan. 27, 2017). 131 id. 132 id. 133 82 fed. reg. 8799 (issued jan. 25, 2017). 134 id. 135 id. 136 juliana morgan-trostle & kexin zheng, black alliance for just immigration, the state of black immigrants part ii: black immigrants in the mass criminalization system 15 (2016). 137 id. at 15. 404 columbia journal of race and law [vol. 7:2 itself within the immigration court context as black people are overrepresented in removal proceedings.138 although only 5.4% of the undocumented population in the united states is black, 10.6% of those in removal proceedings are black.139 because the above executive order does not distinguish between those who have been found guilty of a crime and those who are merely charged, all interactions with the police may render black immigrants at risk of deportation. the threat of negative encounters with the police unfortunately exists in spite of black people’s attempts to obey the law. the case of ahmadou diallo, an unarmed guinean immigrant, who was shot and killed by four nypd plain clothed police officers because he matched the general description of a serial rapist, serves as a cruel reminder of how the criminalization of blackness exists apart from individual actions.140 moreover, it solidified the reality that african immigrants are not exempt from the dangers of being black in america. as of this writing, president trump’s most controversial executive order was arguably “protecting the nation from foreign terrorist entry into the united states.”141 much has already been said about the order’s controversial banning of entry from citizens from six designated countries, yet it also contains additional provisions that are especially damaging to african immigrants.142 for instance, section 3 of the order suspends the visa interview waiver program and instead requires all visa applicants, 138 id. at 20. 139 id. 140 michael cooper, officers in bronx fire 41 shots, and an unarmed man is killed, ny times (feb. 5, 1999), http://www.nytimes.com/1999/02/05/nyregion/officers-in-bronx-fire-41shots-and-an-unarmed-man-is-killed.html [https://perma.cc/r5ms-gfrt]. 141 protecting the nation from foreign terrorist entry into the united states, 82 fed. reg. 8977 (issued jan. 27, 2017). 142 the six countries are iran, libya, somalia, sudan, syria, and yemen. id. no. 3:373] african immigrants and intersectionality 405 including repeat applicants, to undergo a visa interview.143 this measure increases the burden of getting a united states visa for both immigrant and non-immigrant applicants and also introduces the possibility of bias within the visa process. as mentioned earlier, the visa interview is a site where united states officials can impose their biases onto applicants, which has an especially negative impact on black applicants.144 with this new order, even those who have undergone the visa application process earlier and simply want to renew their visa, will once again have to subject themselves to visa interviews. to make matters worse, the trump administration has framed the need for this measure around the idea that many immigrants come to the united states on a fraudulent basis.145 african immigrants are often perceived as more fraudulent than immigrants from other areas and having the assumption of fraudulent behavior as the baseline in the interaction with consulate officers makes for a worrisome prospect.146 in addition to eliminating the visa interview waiver program, the foreign terrorism executive order also suspends the refugee admissions program for 120 days.147 while news coverage mainly focused on how this order would affect targeted muslim-majority nations like syria, in reality, this measure has huge implications for the african continent as a 143 the visa interview waiver program allows certain applicants seeking to renew a united states visa stamp in their passport to submit their documentation to receive the visa without having to appear for a personal interview with a united states consular officer. see 8 u.s.c. § 1202. 144 ogletree, supra note 21, at 762. 145 section 4 of the order reads “secretary of state, the attorney general, the secretary of homeland security, and the director of national intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the united states on a fraudulent basis.” protecting the nation from foreign terrorist entry into the united states, 82 fed. reg. 8977 (issued jan. 27, 2017). 146 ogletree, supra note 21, at 762. 147 enhancing public safety in the interior of the united states, 82 fed. reg. 8799, § 6 (issued jan. 25, 2017). 406 columbia journal of race and law [vol. 7:2 whole regardless of religious affiliation. as a matter of fact, thirty-seven percent of refugee arrivals to the united states come from africa.148 furthermore, the highest number of refugees from any nation come from the democratic republic of congo.149 somalia, which was also on the executive order, sends the fourth largest amount of refugees under the refugee admissions program.150 the data reveals that suspending the refugee admissions program in the name of terrorism prevention ultimately suspends one of the most important channels for african immigrants to enter the united states.151 e. failing to recognize the intersectionality of african immigrants warps the immigration discussion the final harm that occurs with the failure to recognize the intersectional position of african immigrants in the united states is that it warps the discourse surrounding immigration and creates dichotomies between immigrants and african americans specifically where they may not already exist. an intersectional view of immigration would not be complete without analysis of the cross sections and connections between african americans and immigrant groups. for instance, some scholars talk about resentment between the two groups since immigrants have used their relative freedom from discrimination, group cohesiveness, and access to capital to perform better economically than african americans who still face discrimination.152 while this phenomenon may be true for certain groups, the discussion fails to take account of how african immigrants 148 monica anderson, african immigrant population in the u.s. steadily climbs, pew research center, feb. 14, 2017, http://www.pewresearch.org/fact-tank/2017/02/14/african-immigrantpopulation-in-u-s-steadily-climbs/ [https://perma.cc/yxb3-k26j]. 149 id. 150 id. 151 caps et al., supra note 15, at 10. 152 margulies, supra note 83, at 533. no. 3:373] african immigrants and intersectionality 407 often face the same types of racial discrimination as african americans. as discussed earlier, the 1999 police shooting of guinean immigrant, amadou diallo, in new york revealed this shared racial victimization.153 while some in the burgeoning african immigrant community in new york had thought themselves immune to the racial profiling faced by african americans, this shooting dispelled all such notions of exemption from america’s racial hierarchy.154 although africans may experience invisibility as immigrants, their race often renders them hyper-visible when it pertains to racial profiling. professor joan fitzpatrick aptly reveals how prejudice effects different immigrants in various ways when she describes how “[f]alse perceptions of foreignness thus pose a risk to mexican americans. african immigrants like diallo, in contrast, are at risk because they are subject to the same racial stereotyping as african americans born in the united states, and are suspected without reasonable cause of involvement in drug trafficking and violent crime.”155 this “[f]alse perception of membership in the indigenous community”156 complements mai ngai’s notion of “alien citizen” where asians and latinos are viewed as foreign in spite of their citizenship.157 fitzpatrick sheds light on a phenomenon where african immigrants are viewed as indigenous to the united states and are thus subjected daily to the racial stereotyping and brutality that threatens african americans. to assume that the interests of african americans and immigrants diverge completely ignores the racial discrimination that african immigrants experience as black people. 153 cooper, supra note 136. 154 joan fitzpatrick, race, immigration, and legal scholarship: a response to kevin johnson, 2000 u. ill. l. rev. 603 (2000). 155 id. at 603. 156 id. at 610. 157 ngai, supra note 5. 408 columbia journal of race and law [vol. 7:2 v. conclusion considering the risks faced by african immigrants particularly due to their race forces one to reshape the nature of immigration discourse from one of binary oppositions to a more nuanced approach that takes into account how the interests of immigrants can converge and diverge based on their different racial backgrounds. to talk of immigrants as asians or latinos fails to capture the diversity within the groups that arrive in the united states and acknowledge the various faces of immigration. the longer a group remains obscured, the harder it becomes to create policies facilitating their immigration, and the more likely measures that already benefit them can be attacked. the prevalence of african immigrants affected by president trump’s executive orders, illustrates a scenario in which both race and immigration status render african immigrants especially vulnerable. because measures such as prioritizing deportations for those with criminal charges directly implicate blackness, these issues are key areas for the congressional black caucus to intervene. unfortunately, the lack of intersectional analysis of the “muslim ban’s”158 impact, obscures the fact that it directly targets citizens of three african countries and bears consequences for countless more both within and outside the united states. reshaping the immigration discourse to include an intersectional approach to analyzing african immigrants also forces one to consider the diversity within the catch-all “african american” race, into which black people in the united states are grouped. while amadou diallo demonstrates the shared interest that african immigrants have in ending police brutality, so too does the reluctance of the congressional black caucus to support the diversity visa demonstrate that the interests of african immigrants and native blacks may align and diverge at different points. 158 protecting the nation from foreign terrorist entry into the united states, 82 fed. reg. 8977 (issued jan. 27, 2017). no. 3:373] african immigrants and intersectionality 409 whereas some may shy away from this fact out of fear of causing division and undermining coalition between black people in america, the acknowledgement of the diversity amongst black people can help tailor policies that better target groups on the margins and ultimately create more robust channels for their immigration to the united states. 2012 columbia journal of race and law 279 beyond protecting genetic privacy: understanding genetic discrimination through its disparate impact on racial minorities bahrad a. sokhansanj  at the very end of the last century, scientists produced the first draft of the whole human genetic sequence. but that was just the first step; the hard work of the first few decades of this century will be to learn more about how to apply genetic information to improve health. as the pace of technological development accelerates and we learn more about what genetic variations mean about individual human characteristics and health risks, so too does the risk and consequences of the misuse of such information become more significant. the principal answer to this challenge has been to safeguard privacy by constructing legal and technical barriers that conceal and anonymize genetic information. while it may be a worthwhile objective, ultimately privacy protections will likely fail in practice. if this is so, how can we prevent genetic information from being used to categorize, stigmatize, and subordinate? this note approaches this problem by analyzing the african american experience with genetic discrimination in the united states. african americans have confronted the adverse consequences of genetic research in ways that can serve as a foundation to understand future threats posed to racial minorities and everyone in society, as genetic testing increases in prevalence and the privacy of genetic information is unable to be protected. studying the real history of genetic discrimination, rather than merely speculating about what may happen, can point toward policy solutions that go beyond ―genetic privacy.‖ as genetic information becomes more plentiful and valuable, policies to prevent the misuse of that information will benefit everyone, regardless of race or ethnicity. introduction................................................................................................ 280 i. limits to privacy as a protective measure....................... 282 a. practical limitations on genetic anonymity as a basis for privacy 282 b. limited legal protections on genetic privacy............................... 287 ii. past and continuing genetic discrimination targeting racial minorities..................................................... 290 a. racially targeted genetic testing................................................. 290 b. disparate racial impact of forensic dna databases.................. 295  articles editor, columbia journal of race and law; j.d., 2012, columbia law school; ph.d., 2002, applied science, university of california, davis; b.e., 1998, engineering physics, university of saskatchewan. many thanks to professor jessica roberts, priscilla orta-wenner, jade craig, vanessa jackson, jeanette kang, timothy edmonds, and the editorial staff of the journal for their guidance and advice, excellent suggestions, and tireless efforts. beyond protecting genetic privacy vol. 2:2 280 c. skepticism about dna testing among minority communities................................................................................... 297 iii. beyond privacy: explicitly prohibiting misuse of genetic information............................................................... 301 a. new challenges presented by genetic information....................... 301 b. proposed consent-based solutions................................................. 302 c. alternative problem-specific strategies........................................... 303 conclusion........................................................................................................ 308 introduction science in the twenty-first century has been defined in large part by the successful completion of the human genome project. as scientific understanding of the human genome increases, it will shape society as well. the human genome represents a source of information that is uniquely both universal and personal in nature. the composition and ordering of the chemical constituents of dna determine what molecules are synthesized by all living cells and how living cells adapt to change and stress.1 as members of the same species, we share more than ninety-nine percent of our dna sequence with each other, as we all share the same cells, tissues, and organs, all with virtually indistinguishable functions.2 yet each of us can be easily distinguished and identified by the information contained in what individual variation remains. indeed, this tiny fraction of the genome is correlated with differences in disease risk, subtle differences in metabolism, physical characteristics, and all kinds of other hereditary factors that make us different from one another—possibly even behavioral propensities and personality. the promise of using these genetic differences to help tailor diagnostic tools, drug design, and treatment planning to maximize therapy and minimize side-effects at the individual level rather than the traditional ―one-size-fits-all‖ approach has led to widespread excitement and investment around the concept of ―personalized medicine.‖3 along with the promise of its benefits, genetic information poses considerable 1 genetic information is encoded by the specific ordering of the four dna ―bases,‖ which are typically identified by their first initials (adenine, thymine, cytosine, and guanine). this ordering is called the ―sequence‖ of dna. a fragment of dna sequence is typically represented as a string of initials representing the bases along one strand of the dna double-helix, e.g. atcatgacctgga. ―genes‖ are the regions of dna that encode proteins (the molecules that form the structure and perform the functions of living cells). the word ―genome‖ denotes the entire dna sequence of an organism, i.e. the human genome is all the dna sequence on all the chromosomes combined, including all 25,000+ genes, regulatory sequences, and ―junk‖ dna for which no function has yet been discovered. because new technologies make it so easy to rapidly generate dna sequence information across large portions of the genome, scientists often use the words ―dna sequence,‖ ―genetic sequence,‖ and ―genomic sequence‖ interchangeably. see, e.g., online education kit: understanding the human genome project, nat‘l hum. genome research inst., http://www.genome.gov/25019879 (last visited mar. 17, 2012). 2 nat‘l hum. genome research inst., a guide to your genome 1, available at http://www.genome.gov/pages/education/allaboutthehumangenomeproject/guidetoyourgenome07.pdf (last visited may 5, 2012). 3 see generally mara g. aspinall & richard g. hamermesh, realizing the promise of personalized medicine, 85 harv. bus. rev. 108 (2007) (describing business models for personalized medicine in the pharmaceutical industry). there is 2012 columbia journal of race and law 281 risks as well, with the potential of ―personalized‖ stereotyping, stigmatization, and discrimination based on the carriage of ―undesirable traits.‖ these risks underscore the importance of preserving the privacy of genetic information. formal legal protections for medical patients and genetic research study participants in the united states are based on protecting privacy interests primarily through anonymization.4 privately, biobanks and other data collectors also use informed consent covering disclosure risks that may occur despite formally mandated protections.5 recently, federal legislation has been passed in the form of the genetic information nondiscrimination act (―gina‖), which generally prohibits the acquisition and use of genetic information by health insurance providers and employers.6 while it includes anti-discrimination provisions, gina is fundamentally based on privacy and the nondisclosure of genetic information, and prohibits the use of genetic testing by employers. for most americans, gina addresses the fantastical problems seen in science fiction movies, not real-world problems they experience themselves. however, genetic discrimination already has a history in the united states, particularly targeting african americans within the contexts of employment, medical research, and forensic dna databases used in criminal investigation. in general, genetic testing presents racial minorities with the prospect of racial difference being seen as the pre-world war ii paradigm of fixed biological grounds based on hereditary genetic information, rather than a social construction that can be challenged, reformed, and eventually eliminated. this note analyzes the disparate incidence of genetic discrimination against racial minorities, in particular african americans, as exemplified by the past experience of discriminatory genetic testing and present occurrence of genetic discrimination in the context of medical research and forensic dna databases. looking at genetic discrimination through this lens reveals that an approach based on ensuring privacy and focusing on individual consent will not work. rather, policy solutions must be developed that target the specific problems generated by the availability of genetic information. the first part of this note reviews privacy risks specific to dna sequence data, including the practical reasons why anonymity fails. the second part discusses specific risks of genetic information misuse, highlighting issues particularly significant for african american and other minority communities. importantly, not only does genetic information misuse cause specific harms, its prevalence has resulted in a fear of participation in the next generation of genetic medicine among already disadvantaged minorities. the final part describes potential solutions for protecting research participants and others from misuse of their genetic information, based on the need to go beyond a practically obsolete privacybased framework. while this note focuses on the african american experience with genetic discrimination, this experience demonstrates that genetic testing poses real threats that exist now and will affect a larger population as genetic testing becomes more common. responding to the specific concerns of african americans—which arise from misuse of genetic testing in the medical context, from the categorization and stigmatization of individuals on the basis of genetic disease, and from the risks of the use of genetic information by law enforcement—will benefit everyone, regardless of race or ethnicity. tremendous interest in the field—simply entering ―personalized medicine‖ as a search string in the national institutes of health‘s pubmed literature yields well over 1000 articles. 4 see infra notes 19–24 and accompanying text. 5 see infra note 148 and accompanying text. 6 genetic information nondiscrimination act of 2008, pub. l. no. 110-233, 122 stat. 881 (2008) [hereinafter gina]. beyond protecting genetic privacy vol. 2:2 282 i. limits to privacy as a protective measure a. practical limitations on genetic anonymity as a basis for privacy the principal mechanism used to prevent privacy risks, both in medical research and in other applications, is the separation of personally identifiable information from accompanying dna.7 the deidentification or anonymization of data is the only requirement that is actually mandated by federal regulations for federally funded research and data associated with medical records.8 many states supplement federal law with additional regulations.9 one of the main concerns of these state regulations is to ensure consent for subsequent independent research projects that use preserved samples, which otherwise would no longer be under the control of the donor in the absence of a specific contractual obligation.10 the two primary means for regulating research data are the privacy rule of the health insurance portability and accountability act (―hipaa‖)11 and the federal regulation for protection of human subjects,12 known as the common rule.13 the common rule applies to all research involving human subjects that is ―conducted, supported, or otherwise subject to regulation‖14 by the federal government. this rule applies broadly to all federally funded research, research that takes place using federally funded facilities, and private research that is federally regulated, such as clinical trials used to generate data for fda approvals. the hipaa privacy rule applies to ―covered entities,‖ including health plans, 7 see, e.g., stephen j. o‘brien, stewardship of human biospecimens, dna, genotype, and clinical data in the gwas era, 10 ann. rev. genomics & hum. genetics 193, 201–02 (2009). 8 see, e.g., mark a. rothstein, expanding the ethical analysis of biobanks, 33 j.l. med. & ethics 89, 91–92 (2005) (describing ethical issues regarding dna biobanks, in particular informed consent, and the legal protections for privacy in the united states). 9 see generally genetic privacy laws, nat‘l conf. of st. legislators, http://www.ncsl.org/issuesresearch/health/genetic-privacy-laws.aspx (last updated jan. 2008) (surveying the status of state genetic privacy laws). for example, arizona has legislation that requires ―specific informed written consent‖ for a genetic test unless otherwise specifically authorized by state law (i.e. for forensic dna databases), as well as ―expressed consent‖ of the test subject for the release of the results to any party. ariz. rev. stat. ann. § 20-448.02 (2012). louisiana‘s genetic privacy provision makes genetic tests part of the test subject‘s medical record, and thus confidential without ―express written consent.‖ la. rev. stat. ann. § 40:1299.6 (2011). louisiana also has a statutory provision for the collection of genetic information by health insurers that defines the insured‘s genetic information as the ―property‖ of the insurer and prohibiting its retention by any parties except for criminal and death investigations, and for paternity determination. la. rev. stat. ann. § 22:1023(e) (2011). the federal gina statute would now supersede this provision. 10 see katherine drabiak-syed, state codification of federal regulatory ambiguities in biobanking and genetic research, 30 j. legal med. 299, 305 (2009) (noting that of the approximately two-thirds of states that have supplemented federal regulations, only a few limit third-party release, and only another few address the collection, storage, and future use of biological specimens). 11 standards for privacy of individually identifiable information, 45 c.f.r. pts. 160, 164 (2012). 12 hhs protection of human subjects rule, 45 c.f.r § 46 (2012); fda institutional review boards rule, 21 c.f.r § 56 (2012). 13 see generally mark a. rothstein, research privacy under hipaa and the common rule, 33 j.l. med. & ethics 154 (2005) (discussing the relationship between the hipaa and the common rule in regulating the privacy of information obtained in the course of experimental studies). 14 45 c.f.r. § 46.101(a) (2012). 2012 columbia journal of race and law 283 healthcare clearinghouses (e.g. billing services), and healthcare providers that use any kind of electronic records.15 in practice, much other research takes place under the same terms as the hipaa privacy rule, even if it does not formally comply, in part because the administrative load on the researching entity is not substantially different.16 the common rule does not apply to data collected on an anonymous basis, while hipaa may apply if such data are collected on a form that constitutes an applicable medical record.17 if such data were collected from an individual whose identity was then removed from the data (i.e. de-identified or anonymized data), then the common rule and its requirements for informed consent would apply.18 the hipaa privacy rule sharply restricts the use and disclosure of ―protected health information,‖ which is any ―individually identifiable health information‖ held by a covered entity.19 however, there are no restrictions on the use or disclosure of de-identified health information.20 health information is considered de-identified in two ways. first, a qualified statistician may make a formal determination that the information has been de-identified.21 second, specified identifiers of the individual and relatives, household members, and employers, may be removed and the covered entity has no actual knowledge that the remaining information could be used to identify the individual.22 this is the hipaa ―safe harbor,‖ and examples of such data include names, telephone numbers, email addresses, any geographical information except for the first three digits of a zip code (subject to population restriction provisions), social security numbers, all kinds of account and driver‘s license information, any identifying visual information (such as full-face photographs), and any biometrics (like fingerprints).23 notably, the covered entity may still retain a code that can be used to re-identify the individual, provided the code is adequately protected from decryption and is securely held.24 the use of anonymity to protect genome data thus follows the precedent set by decades of other kinds of biomedical research, in which the privacy of patients and clinical trial participants is preserved by stripping data of personal identifiers in compliance with hipaa and common rule provisions described above. the post-genome era of medical research challenges this traditional privacy-based 15 45 c.f.r. § 160.103 (2012). 16 see, e.g., sarah fendrick, the role of privacy law in genetic research, 4 i/s: j.l. & pol‘y for info. soc‘y 803 (2008). for example, one difference is that the common rule only applies to living research participants, but the hipaa applies to the deceased as well. 17 see, e.g., appendix f of the report of the secretary‘s advisory committee on human research protections (sachrp), hhs ofc. for hum. res. protections, available at http://www.hhs.gov/ohrp/sachrp/appendixf.html (last visited feb. 28, 2011). 18 id. 19 45 c.f.r. § 160.102 (2012). 20 45 c.f.r. § 160.502(d) (2012) (assuming the information required to reestablish re-identification is not included in the disclosure). 21 45 c.f.r. § 164.514(b)(1) (2012). 22 45 c.f.r. § 164.514(b)(2) (2012). 23 45 c.f.r. § 164.514(b)(2)(i)(b) (2012). 24 45 c.f.r. § 164.514(c) (2012). beyond protecting genetic privacy vol. 2:2 284 approach to medical information. in the past decade since the draft human genome sequence was released, it has been clear that the functional consequences of individual genetic variation occurs in many different genes throughout the whole human genome, as well as in regions of dna that are not associated with known genes.25 at the same time, advances in dna sequencing technology have made it feasible to cheaply and rapidly obtain a large amount of genomic data from a minute sample of biological material, such as from approximately a milliliter of blood or saliva, or even from a cheek swab.26 moreover, human genetic research has advanced at the same time as innovation in computation and communication technologies. these innovations not only provide the means for storing and analyzing massive data sets for individuals, but they also allow the sharing of data sets and their integration to learn more about how to interpret the genome. this combination of technological advances enables the key experimental tool for human genetic research as it moves beyond the culmination of the human genome project and publication of the first full human dna sequence into the ―post-genome‖ era: the genome-wide association study (―gwas‖).27 to conduct an effective gwas requires enrolling as many subjects from as diverse a population as possible.28 to this end, the concept of national ―biobanks‖ has been developed to contain a combination of dna sequence information and as much data for potential phenotypes29 about what are eventually to be hundreds of thousands of enrolled volunteers. national biobanks have been established in iceland, japan, the united kingdom, estonia, canada, sweden, and china, among others, and one has been proposed for the united states as well, which are even larger than those currently being developed by non-profit research organizations and private pharmaceutical firms.30 in addition, a 25 see 1000 genomes project consortium et al., a map of human genome variation from population-scale sequencing, 467 nature 1061 (2010) (describing the location of 15 million sites of base variation found in a dataset of fully sequenced genomes from 1000 individuals, which is likely to represent over ninety-five percent of variation found in the whole human population). 26 see, e.g., chunsun zhang & da xing, miniaturized pcr chips for nucleic acid amplification and analysis: latest advances and future trends, 35 nucleic acids res. 4223 (2007) (describing chip-based dna amplification methods that can work with sample volumes of as little as 3 µl). 27 see teri a. manolio, genomewide association studies and assessment of the risk of disease, 363 new eng. j. med. 166 (2010) (providing an overview of technical challenges related to gwas and summarizing and linking to over 600 gwas publications). typically in a gwas, human test subjects are grouped according to some observable variable, for example whether they have a particular disease or not, or whether a drug has the desired effect or not, etc. statistical techniques are used to determine all the dna sequence features that correlate with differences between the groups. 28 there may be several hundred thousand to millions of genetic features that are compared across whole genomes. one of the key principles in statistics is that reliable correlations require that the number of observations exceeds the number of variables, which would imply that millions of people have to be enrolled in a gwas for it to be useful. costs and other practical considerations have meant that most studies only involve thousands or even hundreds of participants, and sophisticated statistical methods are used to analyze the data. see john p.a. ioannidis, a compendium of genome-wide associations for cancer: critical synopsis and reappraisal, 102 j. nat‘l cancer inst. 846 (2010) (using statistical analysis as a basis to criticize and reassess the findings of cancer gene risk in most gwas). 29 a potential phenotype in this context refers to any variable that could potentially be correlated to some set of genetic factors. this can be any imaginable human characteristic, from height, to risk of developing breast cancer by the age of 65, to narcotic addiction, to ability to metabolize tryptophan, propensity to be arrested for a crime, and so on. while it is more precise to use the word ―phenotype‖ in an actual sense where the genetic link has been established, the term is used ambiguously in the genetic literature. see, e.g., o‘brien, supra note 7. 30 see, e.g., oecd, creation and governance of human genetic research databases (2006). a list of biobanks around the world that are currently members can be found at the confederation of cancer biobanks website. current members, confederation of cancer biobanks, http://www.ncri.org.uk/ccb/currentmembers.html (last visited may 6, 2012). http://www.ncri.org.uk/ccb/currentmembers.html http://www.ncri.org.uk/ccb/currentmembers.html 2012 columbia journal of race and law 285 growing number of private ―personal genomics‖ firms are now producing genome sequence information for a fee.31 at least one such service, 23andme, is using the data it collects from its customers to perform a progressively more comprehensive gwas.32 another emerging venue for gwas is in the workplace. employees may enroll in health and wellness programs, as well as research into potential occupational health hazards, which may have a comprehensive genetic testing component.33 because gwas research necessarily means large-scale disclosure of individual genomic data, preserving informational privacy is a major challenge. as gwas participation proliferates, three trends emerge that compound the risk of inadvertent disclosure of a person‘s identity associated with dna sequence data: first, more databases are being established that store large genomic data sets from more people; second, individual data sets from more people are being combined together and associated with more detailed phenotype information; and third, data may be obtained from the same individual in multiple studies, which means that their genomic data may be stored in multiple databases. open data sharing is critical for progress in human genome research, because so much data are required to interpret complex individual variations occurring over large populations with any statistical significance. the national institutes of health (―nih‖) has formally established a policy for public release of data from federally funded gwas, stating that ―the nih believes that the full value of gwas to the public can be realized only if the genotype and phenotype datasets are made available as rapidly as possible to a wide range of scientific investigators,‖ in particular due to ―extraordinary opportunities for making comparisons across multiple studies.‖34 restrictions on data openness to preserve privacy have been sharply criticized by scientists as potentially limiting the future of genetic research.35 data security methods have practical limitations as well. measures that try to tweak simple anonymization to better obscure the association between personal identity and genomic data have practical limitations. in other applications, complex data sets with private information are protected by some kind of statistical transformation that reduces its identifiability.36 one possible way of doing this with dna sequence data would be to introduce ―noise‖ into the data set, for example by randomly 31 katherine harmon, genome sequencing for the rest of us, sci. am. (june 28, 2010), http://www.scientificamerican.com/article.cfm?id=personal-genome-sequencing. 32 nicholas eriksson et al., web-based, participant-driven studies yield novel genetic associations for common traits, 6 plos genetics e1000993 (2010). 33 the text of the genetic information nondiscrimination act (gina) (2008) and regulations promulgated by the u.s. equal employment opportunity commission (eeoc) to implement it explicitly anticipate this possibility. for example, gina sets out as an exception to the prohibition and allows employers to request, require, or purchase genetic information where ―health or genetic services are offered by the employer, including such services offered as part of a wellness program.‖ gina § 202(b)(2)(a), 42 u.s.c. § 2000ff-1 (2012). there is also an exemption to the disclosure prohibition ―to an occupational or other health researcher if the research is conducted in compliance with the regulations and protections provided for under part 46 of title 45, code of federal regulations.‖ gina §206(b)(2), 42 u.s.c. § 2000ff-5 (2012). 34 policy for sharing of data obtained in nih supported or conducted genome-wide association studies (gwas), nih notice not-od-07-088, nat‘l inst. of health (aug. 28, 2007), http://grants.nih.gov/grants/guide/noticefiles/not-od-07-088.html [hereinafter nih notice]. 35 dov greenbaum et al., genomics and privacy: implications of the new reality of closed data for the field, 7 plos comp biology e1002278 (2011). 36 see, e.g., a. d. marks & k. k. steinberg, the ethics of access to online genetic databases: private or public?, 2 am. j. pharmacogenomics 207 (2002) (describing the ethical consequences of private versus public genome sequencing projects, including the issue of public research projects releasing data freely to the public). http://www.scientificamerican.com/article.cfm?id=personal-genome-sequencing http://grants.nih.gov/grants/guide/notice-files/not-od-07-088.html http://grants.nih.gov/grants/guide/notice-files/not-od-07-088.html beyond protecting genetic privacy vol. 2:2 286 changing some of the bases in the sequence of a particular individual.37 while this would certainly reduce identifiability, it would have a severely adverse impact on the utility of the data. this is because most genetic variation between different individuals is in fact in single base sites, so any errors or deliberate noise introduced into the data would make it impossible to correlate these variations with any physical or disease-related manifestation. it could be possible to use these noise-generating techniques to obscure associated personal demographic information or clinical information, but again there would be similar costs in terms of the ability to interpret the impact of genetic variation. in addition, researchers have suggested ways in which sophisticated cyber-attacks may compromise noising schemes to reveal protected data.38 an alternative is to encrypt the data and rely on computer and network security mechanisms to restrict access and make it harder for someone to employ re-identification techniques. this is the approach taken by nih in putting its public genome databases behind a controlled access firewall (and mandating that researchers do so as well).39 this, however, is still an imperfect solution. many research groups will still have access to the data because they need to use it,40 and as a result, the system relies on maintaining effective access control to a relatively open network. for the system to succeed and not overly inhibit research work by legitimate users, the credentialing process for eligible researchers must balance the need for openness and a wide diversity of research users with the need to keep things confidential. this means holes will necessarily be left open for unscrupulous exploitation.41 the preceding discussion has focused primarily on genetic information collected in the course of gwas. other dna sequence data are being collected and stored online, leading to the same issues regardless of whether information is accessed by hackers or disclosed voluntarily. the latter is not an unrealistic possibility. for example, in the future, people may add genetic data to the information they share in online social networks. even today, some of the people who have used commercial genome sequencing technology have released their data to the public under their own names.42 it only costs a few hundred dollars now to obtain dna data on hundreds of thousands of single base variations that are associated with disease risk and ancestry. the cost of a whole personal genome sequence is now under $20,000, and prices are dropping exponentially. in a legal and regulatory regime that requires preserving anonymity as a theoretically effective means of preserving genetic privacy, practically speaking, the anonymity approach is facing increasing challenges by the continuous and rapid expansion of access to cheap genome sequencing, computation, and communications technology. 37 see, e.g., bee-chung chen et al., privacy-preserving data publishing, 2 found. & trends in databases 1, 15 (2009). 38 id. at 117–19. 39 nih notice, supra note 34. 40 id. ―investigators and institutions seeking data from the nih gwas data repository will be expected to meet data security measures (such as physical security, information technology security, and user training) and will be asked to submit a data access request, including a data use certification, that is co-signed by the investigator and the designated institutional official(s). data access requests should include a brief description of the proposed research use of the requested gwas dataset(s).‖ 41 for example, not only would principal investigators have access to data, but also a variety of graduate students, postdoctoral researchers, staff technicians, and casual labor such as undergraduate students. 42 see, e.g., data/code, genomes unzipped, available at www.genomesunzipped.org/data (last visited may 6, 2012) (providing links to the genetic sequence data of genomes unzipped consortium members). 2012 columbia journal of race and law 287 b. limited legal protections on genetic privacy the fourth amendment of the united states constitution prohibits unreasonable searches and seizures, placing a significant limitation on privacy invasion. this limitation presupposes an expectation of privacy: specifically, both an individual‘s actual, subjective expectation of privacy and an objectively reasonable one.43 a requirement of an objectively reasonable expectation of privacy has important consequences for genetic information privacy because of how the fourth amendment deals with ―abandoned property.‖44 the supreme court has held that fourth amendment protection does not extend to property that is abandoned or voluntarily discarded.45 thus, there is a question about whether dna obtained from discarded property would pose any constitutional issues. this question has played out in different ways. in one recent case, united states v. davis, the defendant was first admitted to a hospital for a gunshot wound, at which point his clothing was searched and subsequently confiscated by the police after marijuana was found.46 then, during a later murder investigation, dna on the clothing was tested and the sample was retained. in a second murder investigation, the dna sample was used to identify the defendant, who then moved to suppress the evidence as the product of an illegal search.47 during its analysis of the objectively reasonable expectation of privacy, the federal district court noted, nor does the court necessarily agree that conscious disposal of an item, or unconscious shedding of hair, saliva, or dermal cells, reasonably supports the conclusion that an individual has manifested an intent to abandon one‘s privacy interest in the information that can be gleaned from that item or tissue by dna analysis. . . . a colorable argument could certainly be made that a reasonable societal expectation exists that law enforcement officials will not follow individuals around, waiting for an opportunity to collect and analyze their dna without their knowledge or consent.48 as a result, the court moved onto a fourth amendment analysis, and found that in the ―totality of circumstances,‖ the search was lawful—though it did fall under constitutional jurisdiction.49 however, most courts do not consider abandoned dna to fall under fourth amendment protection at all. for example, in williamson v. state, the maryland court of appeals, the state‘s highest court, considered the circumstances in which the defendant, while under arrest for unrelated charges, was brought a meal from mcdonald‘s. the cup he discarded from the meal was tested for a dna match to two rapes that he was suspected of perpetrating.50 the court held that the cup had been abandoned 43 see generally katz v. united states, 389 u.s. 347 (1967). 44 see generally elizabeth e. joh, reclaiming ―abandoned‖ dna: the fourth amendment and genetic privacy, 100 nw. u. l. rev. 857 (2006). the opinions discussed here cite to the joh article. 45 abel v. united states, 362 u.s. 217, 241 (1960). 46 657 f. supp. 2d 630, 634 (d. md. 2009). 47 id. 48 id. at 649–50. 49 id. at 650. 50 993 a.2d 626, 634 (md. 2010), cert. denied, 131 s. ct. 419 (2010). beyond protecting genetic privacy vol. 2:2 288 and thus the fourth amendment did not apply.51 the court noted the davis result, but it cited only to the part of the opinion distinguishing clothing from other cases of abandoned property, ignoring the passage quoted above.52 courts have also acknowledged the sensitivity of genomic information in an area in which they have endorsed the mandatory collection of genetic data: forensic dna databases. in allowing the collection of dna for such databases, courts have carefully underlined the fact that such databases contain only a limited amount of genetic information required to determine identity.53 courts analogize the dna in such databases to fingerprints and other means of identification that are not loaded with the kind of personal information that a whole sequence would entail, thus limiting the intrusive nature of dna retention.54 but, importantly, while permitting the collection of dna, these courts have in some cases acknowledged that other information can be included in these databases.55 also, the majorities have ignored criticism from dissenters pointing to the possibility that future scientific research may reveal that those sequences do contain more information.56 thus, there is a broad judicial consensus at the state and federal levels encouraging the expansion of forensic dna use and storage beyond just those convicted of felonies to those arrested for many kinds of misdemeanors and convicted of any crime.57 the key limitation on genetic privacy protection is reliance on the reasonable expectation of privacy. and, as society becomes more accustomed to routine genetic testing, this expectation is rapidly diminishing. as the davis court suggested once it turned to its fourth amendment analysis and balancing the defendant‘s privacy interest, ―in this day and age, where dna testing is referenced almost daily in the news and on popular television series such as ‗csi‘ and ‗ncis,‘ this certainly should have put davis on notice that his dna could someday be tested.‖58 thus, there is arguably no reasonable expectation of privacy left in genetic information as it pertains to identification. 51 id. at 635. 52 id. at 641. 53 see, e.g., united states v. kincade, 379 f.3d 813, 818 (9th cir. 2004) (―through the use of short tandem repeat technology (‗str‘), the bureau analyzes the presence of various alleles located at 13 markers (or loci) on dna present in the specimen. these str loci are each found on so-called ‗junk dna‘—that is, non-genic stretches of dna not presently recognized as being responsible for trait coding—and were purposely selected because they are not associated with any known physical or medical characteristics.‖). 54 see, e.g., nicholas v. goord, 430 f.3d 652, 671 (2d cir. 2005) (―[w]e see the intrusion on privacy . . . as similar to the intrusion wrought by the maintenance of fingerprint records.‖). 55 the kincade court, for example, acknowledges that the dna profiles may identify race or sex. 379 f.3d at 818. 56 see, e.g., id. at 850 (reinhardt, j., dissenting). see also the second circuit‘s tacit acknowledgment of scientific uncertainty in nicholas: ―dna databases like new york‘s utilize ‗junk dna,‘ which does not (as far as we know) contain genetic information.‖ 430 f.3d at 656, n.3 (emphasis added). 57 see, e.g., dean g. skelos, senate passes dna databank expansion bill (jan. 31, 2012), www.nysenate.gov/pressrelease/senate-passes-dna-databank-expansion-bill (describing the new york state senate‘s passage of legislation supported by governor cuomo to require those convicted of all felonies, and misdemeanors in the penal law, to supply dna samples). 58 united states v. davis, 657 f. supp. 2d 630, 651–52 (d. md. 2009) (emphasis in original). 2012 columbia journal of race and law 289 the fourth amendment analysis on the reasonable expectation of privacy also applies to state action. however, even where at the state level there is constitutional privacy protection that does not require state action, as in under the california constitution, courts have analyzed the privacy right the same way by requiring a ―reasonable expectation of privacy in the circumstance.‖59 there is the additional possibility that privacy tort law could provide an alternative mechanism for preventing the use of information that could be obtained from abandoned dna. such an action would be based on the publication of information about a person without consent. privacy tort actions may be brought when a matter regarding private life is publicized, such that it ―(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.‖60 in some cases, the fact of an invasion of privacy is non-controversial; in particular, ―facts related to an individual‘s sexual relations, or ‗unpleasant or disgraceful‘ illnesses, are considered private in nature and the disclosure of such facts constitutes an invasion of the individual‘s right of privacy.‖61 an example would be a person‘s positive hiv status.62 however, not all nonconsensual revelations of genetic information constitute a tortious invasion of privacy. genetic information may be negative for disease risk, or it could be relatively benign information such as eye color. thus, a successful privacy tort action brought for genetic information would likely be limited to cases in which real harm occurs, such as through discrimination or stigmatization. even beyond this caveat, the privacy tort is sharply limited by free speech rights.63 genetic information may be published if it is already in the public record64 or if it is ―newsworthy,‖ a broad description that includes even such deeply private information as the names of rape victims65 or the homosexuality of public figures.66 indeed, there is precedent from wiretapping law suggesting that even 59 the california state constitution includes the provision, amended by referendum, ―all people are by nature free and independent and have inalienable rights. among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.‖ calif. const. art. 1 § 1 (emphasis added). the california supreme court has held that the provision requires ―that a plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.‖ hill v. nat‘l collegiate athletic ass‘n., 865 p.2d 633, 657 (cal. 1994). see also norman-bloodsaw v. lawrence berkeley lab., 135 f.3d 1260, 1271 (9th cir. 1998) (interpreting the california constitutional claim by following its fourth amendment balancing of ―reasonable expectation‖ and government interests). 60 restatement (second) of torts, § 652d (1977). 61 robert c. ozer, p.c. v. borquez, 940 p.2d 371, 377 (colo. 1997). 62 see, e.g., urbaniak v. newton, 226 cal. app. 3d 1128, 1140 (cal. ct. app. 1991). 63 see generally eugene volokh, freedom of speech and information privacy: the troubling implications of a right to stop people from speaking about you, 52 stan. l. rev. 1049 (2000) (arguing that almost any privacy protection that would allow someone to unilaterally limit another‘s expression rights necessarily would be unconstitutional). 64 cox broad. corp. v. cohn, 420 u.s. 469, 494 (1975) (―[e]ven the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record.‖). 65 florida star v. b.j.f., 491 u.s. 524 (1989). 66 sipple v. chron. publ‘g co., 154 cal. app. 3d 1040 (cal. app. ct. 1984) (finding that the homosexuality of a plaintiff who had intervened to grab the arm of a man attempting to assassinate president gerald ford was newsworthy and could thus be publicized). beyond protecting genetic privacy vol. 2:2 290 if genetic information were to be obtained through unlawful means and then turned over to the media, the information may be broadcast.67 in general, while there may be some scope for statutory or common law mechanisms to prevent the publication of genetic information without consent, it will be limited by the first amendment. it is unclear how privacy laws based on the reasonable expectation of privacy will translate to a future of ubiquitous genetic information. ii. past and continuing genetic discrimination targeting racial minorities a. racially targeted genetic testing while genetic testing is increasingly a fact of life for all americans, african americans have had a longer and more problematic history of adverse consequences and controversial applications of testing for hereditary conditions. this is exemplified by the legislative findings supporting gina. since congress crafted gina following the framework of other antidiscrimination legislation, the act contains findings that include a history of genetic discrimination, but in doing so, gina‘s drafters were limited by genetic testing‘s necessarily limited history.68 the specific examples that are in the act arise from testing that targeted african americans in particular. the findings describe screening for carriers of sickle cell anemia, a disease that mostly affects african americans. the screening, which began in the 1970‘s, was imposed on african americans specifically to determine health insurance coverage, to decide whether they had the qualifications to join and remain in the military, for permission to play high school athletics, and as a condition for employment.69 eventually, sickle cell disease testing was actually mandated by state legislatures.70 gina‘s findings also refer to norman-bloodsaw v. lawrence berkeley laboratory71, a case about sickle cell testing that represents the only appellate decision about preemployment genetic screening from the era prior to gina‘s passage. the laboratory, which was run by a federal contractor, collected blood and urine samples from all employees, and plaintiffs sued for invasion of privacy due to syphilis, pregnancy, and sickle cell testing that was done on the samples without informing employees.72 the latter genetic test for sickle cell 67 see bartnicki v. vopper, 532 u.s. 514 (2001) (holding that even though the information in question was known to have been obtained through an illegal wiretap, the media could report it because it was newsworthy). 68 see generally jessica l. roberts, preempting discrimination: lessons from the genetic information nondiscrimination act, 63 vand. l. rev. 439 (2010) (discussing evidence supporting and detracting from a history of genetic discrimination and detailing gina proponents‘ concession of the act‘s ―preemptive‖ and anticipatory nature). 69 diane beeson & troy duster, african american perspectives on genetic testing, in the double-edged helix: social implications of genetics in a diverse society 152, 154 (joseph s. alper et al. eds., 2002). 70 gina, pub. l. 110-233, § 2(3), 122 stat. 881 (2008). congress did pass the national sickle cell anemia control act in 1972, which withheld federal funding from states with mandatory screening programs, and broad screening programs led to the first state anti-discriminatory laws. pub. l. 92-294, 86 stat. 136 (1972). 71 gina § 2(4), referring to norman-bloodsaw v. lawrence berkeley laboratory, 135 f.3d 1260 (9th cir. 1998). see also elizabeth pendo, race, sex, and genes at work: uncovering the lessons of norman-bloodsaw, 10 hous. j. health l. & pol‘y 227 (2010) (describing in detail the history of the case with a particular focus on aspects related to race and gender that are often neglected in favor of discussing personal privacy issues). another case on record regarding sickle cell disease testing is jones v. inter-county imaging centers, 889 f. supp. 741 (s.d.n.y. 1995) (denying defendants‘ motion for summary judgment on the ada claim, but publishing no details of the opinion). 72 norman-bloodsaw, 135 f.3d at 1265. the university of california had a contract with the united states department of energy to run this particular laboratory. 2012 columbia journal of race and law 291 disease was done only on samples from black employees, and it continued through june 1995.73 the ninth circuit determined that the fourth amendment applied, rejecting the lower court‘s determination that testing was ―de minimis‖ and thus no violation of privacy occurred ―in light of (1) the ‗large overlap‘ between the subjects covered by the medical questionnaire and the three tests and (2) the ‗overall intrusiveness‘ of ‗a full-scale physical examination.‘‖74 moreover, the court recognized that the nonconsensual screening for sickle cell disease raised a potentially valid title vii claim, since only black employees were affected.75 although the court did not make note of it, despite sickle cell anemia‘s association with africa, it is found in members of other ethnicities as well, merely at lower—but nonnegligible—rates.76 after the norman-bloodsaw case, genetics and race continue to interact in medical research. this is in part because of physicians‘ entrenched beliefs that race and ethnicity affect medical risk. for example, in a recent study of pediatricians on the issue of mandatory sickle cell genetic screening for studentathletes, a much higher percentage supported screening targeted by race and ethnicity than supported universal screening.77 presumably, such attitudes might be seen as changing over time. contrary to such expectations, however, contemporary genetic research threatens to result in the ―reification of race,‖ where biological language reenters the discourse of racial differences that are otherwise considered to be social categories.78 this may seem counter-intuitive. since the advent of dna sequencing, it has been clear that interracial genetic diversity is a small fraction of total individual diversity (itself the mere <1% of variation cited above).79 this science-based challenge to the biological 73 id. the testing program ended, in fact, because african american adults had almost all been tested at birth at that time. the testing of african americans for the sickle cell trait of course implicates substantial issues of racial discrimination, and it motivated much of the legislative concern over genetic information privacy in the united states prior to the human genome project‘s inception in the early 1990s. indeed, it may account for why many states had genetic information privacy laws on the books long before such statutes were developed in other countries (though at the federal level, gina was not passed until 2008). 74 id. at 1269. 75 id. at 1272. 76 see, e.g., eugene f. roth, jr. et al., sickle cell disease in sicily, 17 j. med. genetics 34 (1980). 77 joy koopmans et al., sickle cell trait screening in athletes: pediatricians‘ attitudes and concerns, 128 pediatrics 477, 477 (2011). the study was based on activities pursuant to a rule of the national collegiate athletic association (ncaa) requiring mandatory sickle cell genetic testing of student athletes in division i programs to take place in the first season during which they are eligible to compete. the mandatory testing rule was enacted in 2010 as part of a settlement between the ncaa and the family of dale lloyd ii, a nineteen-year-old rice university football player whose death in 2006 after a practice was attributed to sickle cell trait. vence l. bonham et al., screening student athletes for sickle cell trait—a social and clinical experiment, 363 new. eng. j. med. 997, 997 (2010). 78 see generally guy p. harrison, race and reality: what everyone should know about our biological diversity (2009); audrey smedley, race in north america: origin and evolution of a worldview (3d ed. 2007); troy duster, race and reification in science, 307 sci. 1050 (2005); william m. richman, genetic residues of ancient migrations: an end to biological essentialism and the reification of race, 68 u. pitt. l. rev. 387 (2006). 79 see, e.g., richard c. lewontin, the apportionment of human diversity, 6 evolutionary biology 381 (1972) (the first study of inter-racial variation using samples obtained from blood cells); p.c. ng et al., individual genomes instead of race for personalized medicine, 84 clinical pharmacology therapy 306 (2008) (the first study of inter-individual and inter-racial genetic variation using the whole dna sequence). beyond protecting genetic privacy vol. 2:2 292 concept of race was advanced by the human genome project‘s government sponsors.80 in celebrating the culmination of the project, president clinton stated: ―in genetic terms all human beings, regardless of race, are more than 99.9 percent the same. . . . modern science has confirmed what we first learned from ancient faiths. the most important fact of life on this earth is our common humanity.‖81 this rhetoric nevertheless conceals a paradox arising from the length and complexity of dna sequence. even a small fraction of total variation represents enough information to distinguish between groups of people that correlate with ancestry, and thus, roughly, with race.82 the significance of ethnicity-based (if not outright race-based) medical research is underscored by the pharmaceutical giant glaxosmithkline‘s investment in assembling a dna database resource with information from almost 6,000 people from explicitly african american, east asian, south asian, mexican, and european origins.83 scientists investigating racial disparities in health outcomes have also used genetic testing to verify the degree of african ancestry in study participants.84 the interweaving of race and genetic medicine was made even more explicit with the fda‘s 2005 approval of bidil, a combination drug for use specifically in african americans to treat congestive heart failure.85 the fda initially rejected bidil, but after re-analyzing the data from the failed clinical trial, the drug‘s developers found a potentially beneficial effect among african american patients enrolled in the trial.86 this led the researchers to design an fda-approved clinical trial to study the drug in an exclusive african american population, in which they found a statistically significant impact.87 the 80 human genome project information: minorities, race, and genomics, u.s. dep‘t of energy, http://www.ornl.gov/sci/techresources/human_genome/elsi/minorities.shtml (last visited aug. 31, 2007). 81 nicholas wade, now, the hard part: putting the genome to work, n.y. times, june 27, 2000, http://partners.nytimes.com/library/national/science/062700sci-genome-future.html. 82 as one example of many such studies, a 2008 paper published in the journal science profiled 938 unrelated individuals based on 650,000 features of dna sequence, drawn from fifty-one populations. the authors were able to blindly categorize the individuals into categories that exactly mapped onto groups corresponding to origin in africa, east asia, oceania, the americas, the middle east, europe, and south/central asia using only on average five percent of inter-individual dna variation. j.z. li et al., worldwide human relationships inferred from genome-wide patterns of variation, 319 sci. 1100 (2008). see generally c.w.k. chiang et al., rapid assessment of genetic ancestry in populations of unknown origin by genome-wide genotyping of pooled samples, 6 plos genetics e1000866 (2010) (categorizing the individuals in their study into african american, nigerian, european, and native american groups), r. yaeger et al., comparing genetic ancestry and self-described race in african americans born in the united states and africa, 17 cancer epidemiology biomarkers prev. 1329 (2008); k. brye et al. genome-wide patterns of population structure and admixture in west africans and african americans, 107 proc. nat‘l acad. sci. u.s.a. 786 (2010) (describing studies that identified groups according to african american or proximate west african descent). 83 m. r. nelson et al., the population reference sample, popres: a resource for population, disease, and pharmacological genetics research, 83 am. j. hum. genetics 347 (2008). 84 yaeger, supra note 82 (comparing african ancestry as referenced to a west african and african american database versus self-identification survey results). 85 andrew pollack, drug approved for heart failure in black patients, n.y. times, july 20, 2004, at c1. bidil is the trade name for isosorbide dinitrate/hydralazine, a combination vasoldilator and antihypertensive. both drugs had already been approved for treatment individually, so only the combination was novel. 86 id. see also jay n. cohn, the vasodilator-heart failure trials (v-heft): mechanistic data from the va cooperative studies, 87 circulation vi-1-4 (1993). 87 anne l. taylor et al., the african-american heart failure trial: background, rationale and significance, 94 j. nat‘l med. ass‘n 762 (2002). 2012 columbia journal of race and law 293 fda subsequently approved bidil as a drug for the ―treatment of heart failure as an adjunct to standard therapy in self-identified black patients to improve survival, to prolong time to hospitalization for heart failure, and to improve patient-reported functional status.‖88 bidil‘s approval led to substantial debate on scientific, political, and ethical grounds, and it continues to be prominently highlighted in discussions surrounding genetic medicine generally.89 one of the principal scientific grounds for the critique of bidil was that the data emphasized by the drug maker and the fda was very controversial. it purported to show dramatically higher african american mortality rates due to heart failure.90 however, some studies have shown that disparities in hypertension among african american men are highly correlated with socioeconomic status, overwhelming any measurable genetic difference even if one exists.91 the debate over bidil exemplifies the problems associated with incorporating the analysis of genetic information into the study of racial disparities in medicine.92 it is true that genetic differences along ethnic lines may merely reflect the natural genetic similarity that results from shared ancestry and geographic origin.93 and, indeed, there are geographical concentrations of phenotype that may be due to shared ancestry and consequent genetic similarities, such as the prevalence of hereditary sickle cell disease in africa;94 the inability to metabolize alcohol in parts of asia;95 and beta thalassemia, otherwise 88 bidil package insert final draft, u.s. food & drug admin. (june 23, 2005),available at http://www.accessdata.fda.gov/drugsatfda_docs/label/2005/020727lbl.pdf. this is the label approved on june 23, 2005 by the fda. approved drug products, bidil, nda 020727, u.s. food and drug administration, http://www.accessdata.fda.gov/scripts/cder/drugsatfda/index.cfm?fuseaction=search.drugdetails#.t5re00qndvk (search ―bidil‖) (last visited may 5, 2012). 89 see, e.g., amanda tessmer, pharmacogenomics and the genetic information nondiscrimination act of 2008: legislation limitations and its impact on pgx research and clinical opportunity, 3 st. louis u. j. health & pol‘y 153, 164–68, 177–81 (2008) (discussing racial issues as being a prominent factor in limiting the progress of pharmacogenomic research); troy duster, medicalisation of race, 369 lancet 702, 703 (2007) (critiquing assumptions of disproportionate african american mortality rates due to heart failure and bidil‘s manufacturer‘s interest in receiving a patent extension for the novel racebased use of the drug); g.t.h. ellison et al., flaws in the u.s. food and drug administration‘s rationale for supporting the development and approval of bidil as a treatment for heart failure only in black patients, 36 j.l. med. ethics 449, 449-57 (2008) (disputing the statistical significance of the observed difference between black and white patients in the trial). but see also britt m. rusert & charmaine d. m. royal, grassroots marketing in a global era: more lessons from bidil, 39 j.l. med & ethics 79, 84–86 (2011) (describing support within the african-american community and outreach by bidil‘s manufacturer targeting community organizations). 90 duster, supra note 89, at 703 (discussing how the mortality discrepancies appear entirely based on age effects in the cohort, in which a disproportionate number of people aged forty-five to sixty-four dying but representing only six percent of the total population distorting the final results in a statistically insignificant manner). 91 michael j. klag et al., the association of skin color with blood pressure in us blacks with low socioeconomic status, 265 j. am. med. ass‘n 599, 599-602 (1991) (showing that pigmentation intensity correlates with hypertension, but that this correlation is well-explained by differences in socioeconomic status); see also richard s. cooper et al., an international comparison study of blood pressure in populations of european vs. african descent, 3 bmc med. 22 (2005). 92 this debate is not limited to african americans, nor is it limited to the positive effects of drugs. for example, in 2005, the fda issued a public health advisory for the cholesterol-lowering drug crestor targeted to asian americans specifically. public health advisory for crestor (rosuvastatin), u.s. food & drug admin. (mar. 2, 2005), http://www.fda.gov/drugs/drugsafety/postmarketdrugsafetyinformationforpatientsandproviders/drugsafetyinform ationforheathcareprofessionals/publichealthadvisories/ucm051756.htm. 93 nelson et al., supra note 83. 94 see, e.g., a. p. gelpi, migrant populations and the diffusion of the sickle-cell gene, 79 annals internal med. 258, 258-64 (1973). beyond protecting genetic privacy vol. 2:2 294 known as ―mediterranean‖ anemia.96 thus, some inter-group biological differences are genetic; but these are differences between ethnicities, not necessarily the social constructs of race that have developed in the american context. there may even still be pragmatic utility in using ―african american‖ and ―hispanic american‖ as racial groupings in medical genetics research; for example, it may be a way to ensure that members of minority communities are adequately represented in genetic studies.97 that said, many scholars reject the notion that racial classifications are biologically meaningful and instead propose that not only should health disparity research be focused on environmental and socioeconomic considerations, but also that any association of race with biological outcomes is harmful.98 for example, a study that classifies african americans as a group more likely to develop lung cancer as a result of cigarette smoking due to presence of a particular genetic mutation will be reported in such a way that it ignores the large minority of non-african americans who share the same mutation and have a higher rate of smoking.99 the study thus overlooks the alternative conclusion that economic factors, social context, or environmental factors like pollution might make african americans more likely to develop nicotine addiction or suffer from lung cancer.100 indeed, at least one study that carefully compared head and neck cancer outcomes among patients who self-declared their race and their genetically-identified ancestry revealed that health outcomes were correlated with self-declared social conceptions of race, as opposed to ―biological‖ ancestry.101 where such an approach has not been used, the outcome of research intended to solve the problem of racial disparities in health outcomes may only 95 see, e.g., hui li et al., refined geographic distribution of the oriental aldh2*504lys (nee 487lys) variant, 73annals hum. genetics 335, 335-45 (2009). 96 see, e.g., roshan colah et al., global burden, distribution and prevention of ß-thalassemias and hemoglobin e disorders, 3 expert rev. hematology 103 (2010). 97 see generally michael j. malinowski, dealing with the realities of race and ethnicity: a bioethics-centered argument in favor of race-based genetics research, 45 hous. l. rev. 1415 (2009) (arguing that cautious deployment of genetic studies is warranted given existing ethnic and racial divisions in society, the need for access to those groups to address health disparities, and the possible targeting of treatments to particular genetic factors). 98 dorothy e. roberts, legal constraints on the use of race and ethnicity in biomedical research: toward a social justice framework, 34 j.l. med. & ethics 526, 531–32 (2006) (advocating a strong presumption against the use of racial categories in scientific publications, research funding proposals, and other medical research and clinic contexts). but cf. clarence c. gravlee, how race becomes biology: embodiment of social inequality, 139 am. j. phys. anthro. 47 (2009) (presenting a more moderate view that scientists and public health workers should continue to consider race to show how health differences arise from social inequality between racial groups while discounting genetics as scientifically valid causative factor). 99 see, e.g., lung cancer genetics different in black patients: study, wash. post, nov. 14, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/11/14/ar2008111403130.html. however, the difference is only in the probability of finding mutations in different populations. rom s. leidner et al., genetic abnormalities of theegfr pathway, 27 j. clinical oncology 5620, 5622 (2009). moreover, a later study of samples from more african american patients revealed no racial difference in the prevalence of mutations. see j. matthew reinersman et al., frequency of egfr and krasmutations in lung adenocarcinomas in african americans, 6 j. thoracic oncology 28, 30-31 (2011). 100 see reanne frank, what to make of it? the (re)emergence of a biological conceptualization of race in health disparities research, 65 soc. sci. & med. 1977, 1980–81 (2007) (citing neil risch, dissecting racial and ethnic differences, 354 new eng. j. med. 408 (2006) (describing an editorial following a 2005 epidemiological study on differential rates of lung cancer among african americans urging the use of genetic admixture methods to identify potential genetic factors related to the disparity) 101 maria j. worsham et al., race as a social construct in head and neck cancer outcomes, 144 otolaryngology – head & neck surgery 381 (2011). 2012 columbia journal of race and law 295 reinforce the social inequality that caused the disparities in the first place, by purportedly confirming old stereotypes or introducing new ones.102 b. disparate racial impact of forensic dna databases many of the aforementioned negative consequences of race-based genetic research depend on whether scientists continue to conduct such studies. however, substantial racial disparity already exists in the use of dna to identify criminal suspects. forensic applications of dna are almost as old as the development of technology to detect areas of specific inter-individual variation. in 1985, alec jeffreys, the inventor of ―dna fingerprinting‖ technology, employed his then year-old method to resolve an immigration case.103 shortly thereafter, the technology was used to identify the perpetrator of a double homicide.104 in the united states, the dna identification act of 1994 funded national dna analysis laboratory facilities and gave the fbi the authority to establish a nationwide database of dna records.105 subsequent legislation expanded the scope of what dna could be acquired and retained. the most recent of which is the adam walsh child protection and safety act of 2006,106 which authorizes dna sample collection from all individuals arrested, facing charges, or convicted under the authority of the united states.107 this federal legislation is similar to several state mandates, including california, maryland, and new jersey, to collect dna of persons with multiple felony arrests, and all fifty states collect dna from all state offenders.108 because virtually everyone in the state and federal dna databases (between which information is shared) was at one point either arrested or convicted of a crime, the racial distribution of samples within the databases generally reflect the overall racial disparity in arrests and convictions.109 for example, in maryland, which tracks the demographics of the population from whom dna samples are collected, 60.9% of those sampled were african american, whereas 35.0% who were white.110 among 102 see, e.g., vence l. bonham et al., community-based dialogue: engaging communities of color in the united states‘ genetics policy conversation, 34 j. health pol., pol‘y & l. 325, 326 (2009) (highlighting the role of public misunderstanding of genetics and the perpetuation of stigmatization after publication of experimental data). 103 alec j. jeffreys et al., positive identification of an immigration test-case using human dna fingerprints, 317 nature 818 (1985). 104 j. gitschier, the eureka moment: an interview with sir alec jeffreys, 5 plos genetics e1000765 (2009), available at http://dx.doi.org/10.1371/journal.pgen.1000765 (jeffreys describes the police as also conducting the first ―dna dragnet,‖ when after testing of individual suspects failed to find a match, 500 samples were taken from throughout the local community). 105 pub. l. no. 103-322, 108 stat. 2065 (1994) (codified as amended at 42 u.s.c. § 14131–14134). 106 pub. l. no. 109-248, 120 stat. 587 (2006). 107 42 u.s.c. § 14135a(a)(1)(a) (2012). 108 paul m. monteleoni, dna databases, universality, and the fourth amendment, 89 n.y.u. l. rev. 247, 252 (2007). 109 see, e.g., d.h. kaye & michael e. smith, dna identification databases: legality, legitimacy, and the case for population-wide coverage, 2003 wis. l. rev. 413, 452–54 (2003). 110 these percentages were calculated from: forensic sciences div., md. state police, statewide dna database report: 2009 annual report (2010), available at http://cdm15029.contentdm.oclc.org/cdm/ref/collection/p266901coll7/id/2894. beyond protecting genetic privacy vol. 2:2 296 the state population as a whole, 63.0% are white and 29.7% are african american.111 in the united states as a whole, an estimated 28.3% of those arrested in 2009 were african american,112 as compared to 12.9% of the general population.113 while this overwhelming racial disparity in individual dna samples in the database raises troubling questions on its own,114 it becomes particularly salient in view of new approaches that go beyond the model of a database restricted to those actively convicted or even arrested of crimes.115 where no match was found in the existing database, dna samples have been used to attempt to predict a suspect‘s racial or ethnic origin.116 this explicitly racial use of forensic dna analysis echoes the racebased medical research questions discussed above and raises important issues regarding racial profiling and the potential for reinforcing stereotypes associated with criminal behavior—or perhaps the use of more insidious categories, such as those associated with genetic traits thought to be explicitly predictive of behavior.117 of more immediate applicability is the growing interest in kinship or familial dna searches for forensic use. in these kinds of database searches, when no exact match to a database is found, a near match is correlated with a suspect‘s family member whose genetic information is available to law enforcement.118 based on theoretical models, scientists have predicted that using familial dna searches could increase the ―cold-hit‖ rate (match between a sample obtained at the crime scene and an entry already in the database) by as much as forty percent.119 this technique is already being used. for 111 maryland quickfacts, u.s. census bureau, http://quickfacts.census.gov/qfd/states/24000.html (last visited april 27, 2012). 112 crime in the united states 2009: arrests by race, fbi, http://www2.fbi.gov/ucr/cius2009/data/table_43.html (the data represent arrest records covering approximately 80% of the total u.s. population) (last visited april 27, 2012). 113 u.s.a. quickfacts, u.s. census bureau, http://quickfacts.census.gov/qfd/states/00000.html (last visited may 6, 2012). 114 see generally michael t. risher, racial disparities in databanking of dna profiles, 22 genewatch 22 (2009), available at http://www.councilforresponsiblegenetics.org/genewatch/genewatchpage.aspx?pageid=204 (describing racial skew in the database influences what crimes go unsolved and what crimes go solved). 115 notably, there have also been problems with expunging the newly expanded databases of wrongfully collected genetic information. see, e.g., solomon moore, f.b.i. and states vastly expand dna databases, n.y. times, apr. 19, 2009, at a1 (describing how a public defender had spent weeks trying to expunge the profile erroneously taken from a fourteen year old boy guilty of assault and bicycle theft). 116 duana fullwiley, can dna ―witness‖ race?, 21 genewatch 12 (2008), available at http://genocommunity.org/editoruploads/file/crime%20and%20dna%20readings/can%20dna%20witness%20rac e.pdf (describing the case of derrick todd lee, who was convicted in 2004 for serial murder and rape cases committed in the early 2000‘s). this case is referred to in the promotional material of dnaprint genomics, the now-defunct company that conducted the analysis. in general, these methods use genetic signatures based on those particular aspects of dna sequence that are associated with race, ethnicity, and common geographical origin. see sources and accompanying text, supra note 82. 117 see, e.g., bert-jaap koops & maurice schellekens, forensic dna phenotyping: regulatory issues, 9 colum. sci. & tech. l. rev. 158, 164 (2008). 118 see, e.g., eva steinberger & gary sims, finding criminals through the dna of their relatives: familial searching of the california offender dna database, 31 prosecutor‘s brief 28, 31 (2008) (describing the statistical technique used to analyze a familial hit in a forensic dna database). 119 frederick r. bieber et al., finding criminals through dna of their relatives, 312 sci. 1315 (2006). http://quickfacts.census.gov/qfd/states/24000.html 2012 columbia journal of race and law 297 example, police investigators in california recently identified the suspected ―grim sleeper‖ serial murderer by first obtaining a close dna match to an individual in a forensic database, and then using familial relationship data found in public records to identify the suspect himself.120 scholars have questioned the ethical issues regarding privacy in familial dna searching, which include violating the privacy of the individual whose sample is in the dna database already, as well as violating the privacy of a potentially large pool of possible relatives.121 moreover, familial dna searches may unexpectedly reveal hits and misses that disrupt family structure, by finding a genetic link where one was previously unknown or revealing the absence of such a link that was thought to exist.122 there is also a high potential for the use of familial dna searching to increase the already racially disparate impact of forensic dna testing. given that african americans and increasingly other minority populations are dramatically overrepresented in forensic dna databases, the number of their relatives who will be potentially captured through familial searching will be even more exponentially overrepresented.123 it has been suggested that if proper precautions are taken, such as ensuring the destruction of dna samples associated with innocent family members, kinship searches may not be as problematic as claimed since they can be used equally well to demonstrate innocence.124 however, as other commentators have pointed out, familial matches inherently produce only partial matches, which would be of limited exoneration value.125 any such benefit is outweighed by the risk that a minority community overrepresented in the forensic database would find itself potentially cast entirely within the net of the database supplemented by kinship searches.126 thus, while there is no ―universal‖ dna database of all americans, there may soon be effectively such a database for african americans, and increasingly, other minorities that share common genetic ancestry. c. skepticism about dna testing among minority communities racial minorities, in particular african americans, are massively underrepresented in genetic studies. as of august 2009, 320 of 373 publicly known gwas were entirely made up of european 120 jennifer steinhauer, ―grim sleeper‖ arrest fans debate on dna use, n.y. times, july 9, 2010, at a14. 121 erica haimes, social and ethical issues in the use of familial searching in forensic investigations: insight from family and kinship studies, 34 j.l. med. ethics 263, 264 (2006). 122 id. at 268–70. 123 see, e.g., jennifer mnookin, devil in the dna database, l.a. times, apr. 5, 2007, at a23; henry t. greely et al., family ties: the use of dna offender databases to catch offenders‘ kin, 34 j.l. med. & ethics 248, 259 (2006). see also daniel j. grimm, the demographics of genetic surveillance: familial dna testing and the hispanic community, 107 colum. l. rev. 1164, 1184 (2007) (theoretically predicting higher rates of kinship matches among hispanic families that tend to be larger and thus include more immediate relatives). 124 jules epstein, ―genetic surveillance‖—the bogeyman response to familial dna investigations, 2009 u. ill. j.l. tech. & pol‘y 141, 170–72 (2009). 125 see, e.g., erin murphy, relative doubt: familial searches of dna databases, 109 mich. l. rev. 291, 311–13 (2010). 126 greely, supra note 122. one estimate from 2006, when there were far fewer samples in dna databases under more restrictive sample collection laws predicted that given 1.1 million african americans in the database, using a ballpark figure of five first-degree relatives, there would be 5.5 million who would be ―searchable‖—in total accounting for seventeen percent of the total african american population. by comparison, given that 1.65 million u.s. caucasians were in the database, the using the same ballpark figure of five living first-degree relatives, the total ―searchable‖ population would make up only four percent of the total u.s. caucasian population. beyond protecting genetic privacy vol. 2:2 298 ancestry, with over 1.5 million participants.127 there were no studies of only african americans, and of just eleven studies with mixed populations, the average size of the african american population (crucial to get statistically meaningful results) was just 682, as opposed to 8403 for populations with european ancestry.128 given the issues raised in the previous sections, one might hypothesize that racial minorities, and african americans in particular, would have concerns about the potential risks of genetic testing. after all, as discussed previously, african americans have a concrete experience with many of the kinds of misuse of genetic information that are otherwise hypothetical to majority populations, such as profiling for forensic investigation, misuse of genetic testing in the employment context, and use of genetic information to reify socioeconomic differences as reflecting physical distinction in the medical context. indeed, while survey data are not unanimous, the trend of several studies clearly supports this hypothesis, in addition to showing mistrust of genetic information misuse in other minority populations, among whom studies have been more limited.129 african american attitudes toward genetic testing may also be influenced by more prevalent mistrust of medical research and health care. for example, in one survey of african american patients, respondents, as compared to white respondents, were (1) more likely than white respondents not to trust that their physician would fully explain research participation, (2) less likely to believe that they could freely ask their physician questions, (3) more likely to disagree that their physician would not ask them to participate in research the physician thought would harm them, (4) more likely to believe that someone like them could be used in a genetic study without consent, and (5) much more likely to believe that physicians often prescribed medication as a way of experimenting on people without consent and that even their own physicians had given treatment as part of an experiment without consent.130 to explain this repeatedly observed phenomenon of medical mistrust, most authors immediately bring up the specific experience of the tuskegee syphilis study as a principal reason why african americans have a mistrust of the system.131 however, studies that have specifically investigated the actual significance of tuskegee in explaining attitudes have suggested that it is not the sole trigger for mistrust.132 127 anna c. need & david b. goldstein, next generation disparities in human genomics: concerns and remedies, 25 trends genetics 489, 490 (2009). 128 id. 129 see infra notes 131–36 and accompanying text. 130 see, e.g., c. h. herbert, racial differences in medical mistrust among men diagnosed with prostate cancer, 115 cancer 2553 (2009); g. corbie-smith et al., distrust, race, and research, 162 arch. internal med. 2458, 2459 (2002). 131 see, e.g., s. b. thomas & s. c. quinn, the tuskegee syphilis study, 1932 to 1972: implications for hiv education and aids risk education programs in the black community, 81 am. j. pub. health 1498 (1991). 132 see, e.g., dwayne t. brandon, lydia a. isaac & thomas a. laveist, the legacy of tuskegee and trust in medical care: is tuskegee responsible for race differences in mistrust of medical care?, 97 j. nat‘l med. ass‘n 951 (2005); darcell p. scharff et al., more than tuskegee: understanding mistrust about research participation, 21 j. health care poor underserved 879 (2010); see also beeson & duster, supra note 69, at 162 (in describing interviews with african americans regarding attitudes to pre-natal testing for sickle cell disease, beyond just the tuskegee study, the authors state, ―their narratives are saturated with references to medicine as an instrument of domination and control.‖). on the other hand, the impact of popular portrayals of the tuskegee study should not be underestimated, as evinced by the 1997 film miss evers‘ boys, which, while a fictionalized account, according to at least one study directly worked to shape attitudes regarding medical research. vicki s. freimuth et al., african americans‘ views on research and the tuskegee syphilis study, 52 soc. sci. & med. 797, 800, 804-807 (2001) (discussing the impact of miss evers‘ boys specifically on black perceptions of medical research). while studies do point to the role of the tuskegee study as a factor determining perceptions of research, it is important to note that questions have been raised by historians and survivors regarding the 2012 columbia journal of race and law 299 suspicion of health care professionals and the history of medical research adverse to african americans is not the only reason why they do not trust genetic research. for example, african americans and other minority communities have also had a history and have an ongoing present experience of discrimination at the hands of law enforcement, which provides a reinforcing context enhancing the concerns expressed within these communities concerning racial disparities in the forensic dna databases and the risk of selective investigation.133 as the studies described in this section demonstrate, the fear of potential misuse of genetic information, motivated by all of the reasons described above, plays a significant role in making african americans hesitate to participate in genetic studies and worry about the outcomes of such research. for example, a study of nurses attending the 2006 annual conference of the national black nurses association found that while a majority were interested in genetic testing and were willing to participate in genetic education, more than seventy-five percent believed that genetic tests could be used to discriminate against minorities.134 supporting this view was a recent focus group on attitudes towards personalized medicine which showed that african americans simultaneously encouraged by the development of genetic testing for personalized medicine and suspicious of the use of race to tailor medicine, with bidil as a specific example.135 in a study of consent to a large-scale genetic study, while african american participants consented to the immediate study at similar levels to others, they were the least likely, by a statistically significant margin, to consent to save blood samples long term.136 in a 2004 study of attitudes towards breast cancer gene testing, study participants had a positive view of the likely applications of genetic tests for medicine and research that was uniform across all racial categories. after adjustment for age, gender, and educational level, however, african americans were more likely to believe that the government ―would use genetic tests to label groups as inferior, and less likely to endorse the potential health benefits of testing.‖137 in 2008, a team studying participants in a gwas on colon cancer risks compared the response to open-ended questions about genetic testing: african americans proved as likely as other groups to express willingness to participate in future studies.138 but, once prompted by closed-ended question with specific examples of negative accuracy of popular portrayals of the study. see generally fred d. gray, the tuskegee syphillis study: the real story and beyond (1998). 133 troy duster, explaining differential trust of dna forensic technology: grounded assessment or inexplicable paranoia?, 293 j.l. med. ethics 294, 294–95 (2006). 134 i. spruill et al., knowledge, beliefs and practices of african-american nurses regarding genetics/genomics, 20 j. nat‘l black nurses ass‘n 20 (2009) (noting that despite the heightened interest in genetic testing, 56% self-reported their knowledge of genetics as fair or poor). 135 m. de marco et al., views on personalized medicine: do the attitudes of african american and white prescription drug consumers differ?, 13 public health genomics 276, 281 (2010). for bidil, see supra notes 85–91 and accompanying text. 136 g. m. mcquillan et al., consent for genetic research in a general population: the nhanes experience, 5 genetics med. 35, 38 (2003). 137 nikki peters, abigail rose & katrina armstrong, the association between race and attitudes about predictive genetic testing, 13 cancer epidemiology biomarkers prevention 361, 363 (2004) (the result described in the text held even when the sample was reduced to only those who had heard of genetic testing prior to the study). 138 jada bussey-jones et al., asking the right questions: views on genetic variation research among black and white research participants, 24 j. gen. internal med. 299, 302 (2008) (some of the specific concerns that were expressed by significantly higher levels of african american participants about genetic research in general included the likelihood that it would result in higher insurance costs, not benefit minorities, reinforce racism, and ―use minorities as guinea pigs.‖). beyond protecting genetic privacy vol. 2:2 300 consequences, they were less likely to feel very positive about genetic variation research generally and were more likely to express concerns than other study participants.139 these results only represent a sample of many studies of african american and other minority community participation and attitudes towards genetic testing.140 although the trend is not unanimous, two themes seem to frequently recur: african americans (and in fewer studies, hispanic participants) are generally as enthusiastic as other study participants about the potential benefits of genetic testing, while simultaneously they are much more cautious or even pessimistic about potential risks. this accords with the hypothesis one might draw of african american reluctance to participate in genetic testing based on history and experience with genetic testing in the past, as well as concrete fears about genetics reinforcing racial inequality. besides the significance of this analysis in understanding attitudes toward genetic testing generally, there is a real practical concern with the reluctance to participate in genetic studies demonstrated by african americans and underrepresented minorities. for example, while the important breast cancer risk genes brca1 and brca2 were identified in 1990 in a study of women of european origin, until recently there had been no study of breast cancer genetic epidemiology within an african american population.141 many genetic variants connected to disease risk are rare in the population taken as a whole, so they may be missed if the people who have the variant happen to be members of minority groups who do not want to participate in studies. this affects everyone, since, as discussed above in the context of the sickle cell trait, even if such a variant is found more frequently within a racial minority, it can certainly still be present in the majority as well.142 alternatively, a variant that is found in only in a small number of people may still be the basis for developing a new therapeutic drug with broader benefits.143 thus, effective genetic research requires broad participation. the perception that 139 id. at 302. 140 sandra suther & gebre-egziabher kiros, barriers to the use of genetic testing: a study of racial and ethnic disparities, 11 genetics med. 655 (2009) (discussing study conducted in 2000 showing that thirty four percent of blacks, twenty eight percent of latinos, and twenty percent of non-hispanic whites agree with the statement ―information from genetic tests is likely to be misused‖); richard k. zimmerman et al., racial differences in beliefs about genetic screening among patients at inner-city neighborhood health centers, 98 j. nat‘l med. ass‘n 370, 373 (2006) (finding that, in a sample of older adult patients from four inner-city health centers, african americans were significantly more likely than caucasians to believe that genetic testing will lead to racial discrimination); hayley s. thompson et al., perceived disadvantages and concerns about abuses of genetic testing for cancer risk: differences across african american, latina and caucasian women, 51 patient educ. & counseling 217, 221 (2003) (african american women and latina participants were significantly more likely to agree that genetic testing ―is used to show that their ethnic group is not as good as others,‖ a result accompanied by higher medical mistrust scores); but see charles r. jonassaint et al., regional differences in awareness and attitudes regarding genetic testing for disease risk and ancestry, 128 human genetics 249 (2010) (claiming that inter-regional variation in attitudes is more substantial than inter-racial variation, but with only 452 adults, of whom only seventy two percent reported ethnicity, and which consisted of mostly white adults spread across four sites, the statistical significance of these results is limited); eleanor j. murphy et al., racial and ethnic differences in willingness to participate in psychiatric genetic research, 19 psychiatric genetics 186, 189–90 (2009) (the study found no significant differences between racial groups on willingness to participate in genetic research, but blacks and hispanics were more likely to endorse negative reactions, e.g. mistrust and wariness, stigma, participation only for incentives, while willingness to participate among whites was only correlated with benefits to the individual with society and importance for furthering education and knowledge). 141 heather m. ochs-balcom et al., establishing a community partnership to optimize recruitment of african american pedigrees for a genetic epidemiology study, 2 j. cmty. genetics 223, 224 (2011). 142 see generally roth, supra note 76. 143 see, e.g., victor acuña-alonzo et al., a functional abca1 gene variant is associated with low hdl-cholesterol levels and shows evidence of positive selection in native americans, 19 hum. molecular genetics 2877, 2878 (2010) 2012 columbia journal of race and law 301 participation increases the risk of adverse effects of genetic discrimination will therefore substantially hinder the effort to use the discoveries of the human genome project to improve human health.= iii. beyond privacy: explicitly prohibiting misuse of genetic information a. new challenges presented by genetic information in the context of the kind of medical research applications that are the focus of this note, it is natural to identify genetic data as medical information. so, it is natural to first think of protecting genetic information in the same way as we protect other medical records: by restricting disclosure of records associated with personal identifiers. however, genetic sequences are not like typical medical information at all. first, any large sets of combinatorial data can be identifiable, as described for clinical data and as has been demonstrated in the case of consumer records, most notably in a recent controversial contest run by netflix.144 however, even more so than such data sets, a genetic sequence is identifiable on its own, as an individual record. consider this paradox: the hipaa privacy rule permits the disclosure of genetic information provided it is stripped of personal identifiers—but included on the list of prohibited identifiers are ―[b]iometric identifiers, including finger and voice prints.‖145 even a small fraction of dna sequence information is more personally identifiable than a fingerprint, which depends at least somewhat on human interpretation.146 in addition, a solution that would restrict the amount of genetic data in a record, or modify data to prevent identification, would necessarily also conflict with the medical usefulness of the data. there is another important way in which dna sequence is unlike any other medical information: physical samples containing dna can be easily stored without significant degradation,147 and even more unlike other biological specimens, actual dna material needs to be kept intact and whole to retain the entirety of the information it contains. this makes it difficult to employ sample destruction, another conventionally employed solution for maintaining privacy. even if all the tissue obtained in the course of an experiment is lost, all the information within a dna sequence can remain stored on a computer disk or easily transmitted across the internet. the deletion of the sequence data may be (describing a genetic variant associated with low levels of obesity and type 2 diabetes in people of native south american ancestry, which has not yet been found in studies of other populations). 144 ryan singel, netflix spilled your brokeback mountain secret, lawsuit claims, wired, dec. 17, 2009, http://www.wired.com/threatlevel/2009/12/netflix-privacy-lawsuit/ (describing a lawsuit filed alleging that netflix had violated privacy laws as a result of a competition in which netflix had released what it believed were de-identified customer data to the public to develop new customer recommendation algorithms). 145 45 c.f.r § 165.514(b)(2)(p) (2012). 146 michael cherry & edward imwinkelreid, how we can improve the reliability of fingerprint identification, 90 judicature 55, 55–57 (2006). however, many courts have taken the view that fingerprint identification is more reliable, because monozygotic (i.e. ―identical‖) twins share the same dna sequence but not the same fingerprint. see, e.g., united states v. mitchell, 681 f. supp. 2d 597, 608 (w.d. pa. 2009) (notably, despite finding dna to be less identifiable, the court held on other grounds that dna collected at the point of arrest was unconstitutional because dna sequence could potentially contain medical or other personal genetic information). 147 jong soo park et al., haloarcheal diversity in 23, 121 and 419 mya salts, 7 geobiology 515 (2009) (describing dna extracted from salt crystals formed 419 million years ago). this is an extreme example; however, while the samples were highly degraded, enough dna sequence data was obtained to successfully analyze evolutionary similarity with modern organisms. beyond protecting genetic privacy vol. 2:2 302 mandated, as is done now for expunging dna records maintained by law enforcement agencies.148 however, mandating this approach for proliferating public and privacy dna databases is limited by practical limits on auditing procedures needed to ensure that all files and copies thereof are in fact removed. even if genetic records could be effectively controlled and reliably destroyed, in many cases the utility of dna information is such that it can be stored indefinitely. a forensic dna database is useful for law enforcement because it allows matching samples taken from future crime scenes. the information contained within a research biobank should be accessible by future researchers. biobanks are also intended to be dynamic, with new participants being continuously added along with clinical information taken throughout their lifespans that allow correlations to future disease risk as participants in the study age. b. proposed consent-based solutions given that the research application of dna information collides with expectations for medical privacy, one solution might be to expand the scope of informed consent by ensuring that study participants fully understand the risks of disclosure and consent to how much individual control they may exert over the continued storage of genetic information and use of the information in future research. informed consent procedures are also practically appealing in that they do not require significant legislative efforts. one example of this approach is the extensive consent form used by the personal genomics service, 23andme, for the studies it performs on data submitted by its customers, which includes specific information (either directly or following hyperlinks) on the uses of the data, benefits, risks, and data protection mechanisms.149 one prominent genetic scientist, george church, has proposed a more general solution along these lines. it takes advantage of open access, communal regulatory frameworks that have emerged in the internet, the ―creative commons universal waiver.‖150 this approach, which is used by the personal genomics project,151 tries to involve the community as broadly as possible, recognizing that individualized consent is limited by the risk posed to relatives who do not consent. the goal is a dynamically evolving framework for consent that adapts to changing technology and public understanding. the enhanced consent strategy employs comprehension tests as a means to ensure that the consenter understands the complex scientific and ethical issues within the information accompanying the consent interface. some have argued that this approach would help integrate genetic information across multiple studies, which is otherwise hampered by limited consent procedures and hipaa restrictions, but would greatly enhance the ability to gain medical insight from the data.152 148 see, e.g., n.y. comp. codes, r. & regs. § 6193.4(a)(4) (2012) (describing how in new york both documents related to subject‘s dna databank record are destroyed along with the subject‘s dna sample). 149 see supra note 32. the consent information for this study is described at consent document, 23andme, https://www.23andme.com/about/consent (last visited feb. 4, 2011). notably, as a completely private service, 23andme is not obliged to follow the common rule regulations on informed consent. 150 george church et al., public access to genome-wide data: five views on balancing research with privacy and protection, 5 plos genetics e1000665 (2009). 151 personal genomes project, http://www.personalgenomes.org (last visited may 6, 2012). 152 michael tomasson, legal, ethical, and conceptual bottlenecks to the development of useful genomic tests, 18 annals of health l. 231, 237 (2009) (arguing also that 23andme and google get competitive advantages because they are not limited by hipaa and the common rule). 2012 columbia journal of race and law 303 an even more radical proposal is to recruit ―information altruists‖ who would fully comprehend all the risks of research but voluntarily contribute their sequences for the advancement of medical research.153 these could indeed be the same individuals who voluntarily disclose their sequence information in public anyway. some people may not mind such public disclosure, as they recognize that dna sequence information is at most probabilistic, and that environment is most important for determining future disease or other sensitive characteristics, such as behavior or intelligence. information altruists may also be required to obtain consent from immediate family members, which would at least mitigate the problem of any individual-based consent scheme in that it may lead to the unwanted deidentification of dna sequence information from close relatives. nevertheless, voluntary information altruists would still risk having the data used to identify them in other contexts, such as in the course of a civil or criminal investigation, or as part of a medical study in which they have been diagnosed with a disease they wish to keep private. a study was recently undertaken to determine the effect of education prior to consent in a gwas. the authors found that 84% of participants chose public data release, with anonymization, prior to learning about reidentification risks. after receiving such education, only 53% chose public release, 33% chose restricted access in a password-protected database, and 14% opted out of data sharing.154 it is quite likely that such numbers would drop even more once there are cases of misuse of genetic data, which would actualize those risks that are only hypothetical and speculative today, unless one has shared in the experience of racial minorities as outlined above in part iii. many people may also believe that there would be legal protections over their informational privacy even in light of the identification of their sequence, which as discussed in part ii.b may not necessarily be true. in general, informed consent arises from the belief that as people have more knowledge about genetic technology and its potential risks, participation in research and disclosure of genetic information will be encouraged. but, what if fears of genetic information disclosure are not associated with education about genetic technology? as discussed in part iii.c, surveys of african americans have consistently shown pervasive concerns about the risks of genetic research. these concerns exist even alongside the enthusiasm about the benefits of genetic research.155 significantly, african americans are confronted with their disparate experience with forensic dna databases and the risk of being caught in the genetic ―dragnets‖ of familial searching, as discussed in part iii.b. given that no appellate court has prevented genetic identification based on abandoned dna in criminal investigations, confidence in an informed consent regime that could not be pierced by a criminal investigation with limited legal protection is unlikely. because consent-based solutions are focused on the problem of medical research trial participation, without considering other uses of genetic data, they would not address the actual concerns african americans have with the consequences of genetic research. c. alternative problem-specific strategies any problems that appear more threatening among racial minorities are likely to affect members of the majority as well. the attitudes that african americans express about genetic testing, discussed in section iii, are salient beyond their community. african americans have a particular experience with sickle cell disease carrier screening and overrepresentation in forensic dna databases, along with the 153 see generally isaac s. kohane & russ b. altman, health information altruists—a potentially critical resource, 353 new eng. j. med. 2074 (2005). 154 amy l. mcguire et al., to share or not to share: a randomized trial of consent for data sharing in genome research, 13 genetics med. 948, 952 (2011). 155 see supra notes 131–37 and accompanying text. beyond protecting genetic privacy vol. 2:2 304 fear of reification of racial inequality as a result of genetic research in medicine. in these ways, they have had to face the reality of problems that, for the majority, are largely in the domain of science fiction. given that genetic information (even in the limited sense of sickle cell disease carrier status) has already been misused, and that it is currently being misused in the case of kinship searching, there is a concrete basis for identifying at least some of the problems that must be addressed now. this is significant not just for protecting african americans as a discrete group, but also in attempting to minimize harms for everyone as genetic research expands in the future. many commentators have criticized efforts to develop ethical frameworks, rules, and legislation that deal specifically with dna and genetic information as ―genetic exceptionalism.‖156 in this view, genetic information is parallel to information that we already have about family history and ancestry, so it poses no additional threats to privacy or discrimination based on stigmatizing characteristics. one problem with such arguments is that genetic information is different. while it contains probabilistic information and not certainties, the result suggests more than what manifested conditions would reveal. for example, even if there are only a few manifested cases of breast cancer in a person‘s family history, that person may still have a significantly above-average risk of developing breast cancer in their own lives, depending on the toxins to which they may be exposed, or just because of chance alone. or, while a person may not express symptoms of stigmatizing conditions as alcoholism157 or schizophrenia,158they may possess genes linked to all these issues. genetics may also be used to infer behavioral propensities even when tied to less significant conditions, such as attention deficit hyperactivity disorder (adhd).159 thus, the anti-―exceptionalism‖ view does not address real problems associated with genetic information where current solutions are inadequate or do not explicitly cover genetic information. the alternative is to just rely on existing legal protections for health information. but these may not be robust enough, given how comprehensive genetic information can be—including as it does all of ancestry, disease risk, and potentially even behavioral propensities combined. for example, fourth amendment protections on the acquisition of genetic information obtained from medical research by law enforcement agencies may not apply if a subpoena is used to obtain the information, if it is voluntarily submitted upon request (e.g., as a condition of a consent form) or acquired from a public data source.160 thoughtfully developing detailed policy responses to the problems that we see emerge from this discussion is outside the scope of this note, but i will briefly outline the key issues. first, the use of kinship searching by law enforcement leads to increased racial disparities in the criminal justice system, while also challenging one of the core principles governing the use of dna in forensics: that only those 156 see, e.g., mark a. rothstein, genetic exceptionalism and legislative pragmatism, 35 j.l. med. & ethics 59, 61–64 (2007) (describing the fixation of legislatures on dna information, specifically risks obscuring the broader issue of the use of predictive health information generally, not all of which takes the place of dna); sonia m. suter, the allure and peril of genetics exceptionalism: do we need special genetics legislation?, 79 wash. u. l.q. 669 (2001) (claiming that legislation about genetic discrimination ignores the real issues which are race and gender discrimination along with social inequality); lainie friedman ross, genetic exceptionalism vs. paradigm shift: lessons from hiv, 29 j.l. med. & ethics 141 (2001) (reviewing reasons why genetic information poses the same kinds of issues as that of disease status, such as stigma, effect on families, identifiability, etc.). 157 see, e.g., howard j. edenberg & tatiana foroud, the genetics of alcoholism: identifying specific genes through family studies, 11 addiction biology 386 (2006). 158 see, e.g., p.v. gejman et al., genetics of schizophrenia: new findings and challenges, 12 ann. rev. genomics hum. genetics 121 (2011). 159 see, e.g., b. franke et al., genome-wide association studies in adhd, 126 hum. genetics 13 (2009). 160 see, e.g., david h. kaye, dna typing: emerging or neglected issues, 76 wash. l. rev. 413, 433–35 (2001). 2012 columbia journal of race and law 305 who are criminals or suspected with probable cause of criminal activity should be targeted by this scheme. this principle needs to have a statutory basis, since constitutional challenges against the racial disparities presented by the use of forensic dna databases are likely to fail, as courts have been unfriendly towards similar challenges to criminal sentencing disparities.161 this principle animates the legislature‘s refusal to extend dna typing to the population as a whole and in many cases mandate expungement of samples from those who are cleared of charges. whether this principle should be changed is a question that should be decided at the political level, rather than through the discretion of law enforcement agencies or government officials with authority over law enforcement.162 this is especially necessary given the high level of mistrust that minority communities have towards law enforcement, which as outlined above is a likely contributor to their reluctance to embrace genetic technologies that can be used for criminal investigations.163 an alternative proposal that has been raised is that racial disparities can be best addressed without losing the benefits of dna searches for crime by expanding the database to include all americans, without regard to status within the criminal justice system.164 if such an approach were to gain political support in the future, it may still not serve to alleviate concerns among minority communities that criminal investigations are not uniformly targeted. but at least they could potentially have the positive benefit of not exposing minority populations to disproportionate effects due to the capture of family members in database searches, with the accompanying problematic ethical issues. however, such benefits would potentially come with costs. the effective conduct of investigations may be inhibited due to the potential for spurious hits to a rise in property crimes, the added risk of ―framing‖ innocent people for crimes by planting their dna (which is a potential problem currently, but could become more practical with a greater population in the database), and the costs of creating and maintaining such a large database, especially given the existing backlog in dna testing.165 second, prohibitions against the use of genetic information as a basis for genetic discrimination should be strengthened. the application of sickle cell carrier disease screening is in one sense an ―easy problem,‖ since it fell under the purview of existing civil rights legislation, as exemplified by the decision in norman-bloodsaw.166 genetic testing was explicitly conditioned on race, and medical testing overall on race and gender; consequently, existing laws were adequate to the protection of individuals who faced the misuse of their genetic information. sickle cell anemia was a stigmatizing disease that was associated with racism in a clearly understandable way: in norman-bloodsaw and other workplaces and schools, african americans were selected for testing, as the disease was considered to be restricted to them as a 161 see, e.g., mccleskey v. kemp, 481 u.s. 279 (1987) (holding that mere statistical racial disparity in the application of the death penalty was not sufficient to find civil rights violations in the absence of conscious and deliberate bias); united states v. clary, 34 f.3d 709 (8th cir. 1994) (rejecting a challenge to federal sentencing guidelines for crack cocaine on similar grounds). 162 in california, the then-attorney general has said that familial dna searching would be used to investigate serious sexual assaults and murder cases, but in general, the california department of justice reviews requests to use familial dna searching and has refused to rule out approving them for other crimes as its program expands. maura dolan, state to double crime searches using family dna, l.a. times, may 9, 2011, http://articles.latimes.com/2011/may/09/local/la-me-familial-dna-20110509. 163 see spruill, supra note 133. 164 see kaye & smith, supra note 108. 165 tania simoncelli, dangerous excursions: the case against expanding forensic dna databases to innocent persons, 34 j.l. med. & ethics 390, 392–94 (2006). 166 see pendo, supra note 71. beyond protecting genetic privacy vol. 2:2 306 definable racial group. irrespective of whether an individual tested positive for sickle cell, the testing was itself an instance of racial discrimination. however, future applications of screening will present subtle ways in which genetic information will be used to discriminate against groups. stigma may no longer attach to easily identifiable categories like race, gender, national origin, or even disability (where genetic differences have not yet manifested in physical or mental impairment), and existing laws that are narrowly protective of these kinds of groups will be ineffective for the next generation of social categorization. gina is a first step toward eliminating the threat of discrimination, but it must be strengthened. this can be done by adding a private right of action and enhancing damage provisions to prevent misuse of genetic information. further, gina should be expanded beyond a narrow construction of genetic information to include other kinds of differences in molecular biology, which are being discovered at an increasingly rapid pace.167 third, the application of genetic research to racial reification must be barred to prevent the kind of statistical discrimination that we might start seeing otherwise (the above point). to this end, we should prevent the use of ―race‖ as one of the categories in which medical research is reported for genetic studies.168 one approach that has been suggested by a leading medical journal is to replace ancestry, ethnicity, and racial information with the genetic markers that represent the categories of different individuals who are identified in a genetic study. the commonality may or may not be correlated with a ―racial‖ category, but it would not be labeled with words that would identify it as such.169 alternatively, tables in articles may explicitly be headed with words that explicitly indicate that race or ethnicity is being used merely as a ―category‖ and not a biological reality, or that it is ―selfidentified‖ where the category is significant for studying health disparities.170 however, it is important to note the limits of this approach, since ancestry information may be easily obtained from gwas databases by identifying the kinds of markers that have been used for ancestry identification to the dna sequence data that is stored in databases, using the same kind of techniques described above for the re-identification of personal data. also, if particular dna sequence features are in fact associated with particular ethnic heritage because of shared ancestry, then studying their significance to disease risk will be difficult unless enough individuals with that ancestry are recruited into the study, which requires identification of study participants as part of the research process.171 moreover, simply removing racial categories in their totality from all medical research risks concealing 167 see roberts, supra note 68 (describing gaps in gina in particular due to an overemphasis on the antisubordination concept of genetic discrimination); mark a. rothstein, yu cai & gary e. marchant, ethical implications of epigenetics research, 10 nat‘l rev. genetics 224 (2009) (describing legal and ethical challenges posed by epigenetic information, which consists of molecular changes to dna that are not associated with changes in the a-c-t-g base sequence that would be protected by gina). 168 see roberts, supra note 98. 169 editorial, genes, drug and race, 29 nature genetics 239, 239–40 (2001). 170 judith b. kaplan & trude bennett, use of race and ethnicity in biomedical publication, 289 j. am. med. ass‘n. 2709, 2714 (2007). 171 see esteban gonzález burchard et al., the importance of race and ethnic background in biomedical research and clinical practice, 348 n. engl. j. med. 1170 (2003); carlos d. bustamante et al., genomics for the world, 475 nature 163, 164 (2011). 2012 columbia journal of race and law 307 legitimate racial disparities in medical care, disease risk, and health outcomes that arise from socioeconomic disparities.172 overall, the goal should be to direct the scientific community to develop research norms that critique the use of genetic correlations that involve race and ethnicity. achieving this will involve specific legislative and regulatory changes that are targeted toward policies promulgated by the groups that in practice govern the kind of information that is produced as a result of biomedical research: public funding agencies, predominately the national institutes of health, which support and guide the work done by academic investigators, regulators of medical research institutions where most privately-funded research takes place, such as by a reformation of hipaa rules and the food and drug administration, which regulates the use of genetic information by the pharmaceutical and diagnostic industries when they use it to develop products. ultimately, though, the most powerful policy measures will be those that actually target the outcome of the misappropriation and misuse of genetic information, beyond just taking a privacy-based or anti-discrimination framework, which fails to account for what genetic information actually means. it is true that genetic information does not necessarily indicate that any disease or other characteristic will actually manifest and appear in reality. the dna sequence is at most a probabilistic blueprint for potential interaction with the environment. seen this way, the core principle of genetic policy ought to ensure that genetic information will not be used as a basis for discrimination or stigmatization, a concept that harris and sulston have called ―genetic equity.‖173 gina is based on the anticlassification principle, with its analogue the ―colorblindness‖ paradigm for racial discrimination, in which it is the categorization based on genetic information that is the harm that the statute seeks to avoid—explicitly so in its provisions keeping the employer as ―blind‖ to the employee‘s genetic information as possible. 174 this would seem to deal with the stigmatization problem, but it ignores the fact that genetic information does indicate the potential for something real to manifest, such as the potential risk for physical disability upon environmental exposure. for example, what if an employee‘s genetic information indicated that they were at greater risk of carpal tunnel syndrome unless there were accommodations made in their job?175 because gina forces employers to be deliberately ―blind‖ to the information about risk, and there is no physically manifested disability that triggers the reasonable accommodation requirement in the american disabilities act (―ada‖), then the 172 see mildred k. cho, racial and ethnic categories in biomedical research: there is no baby in the bathwater, 34 j.l. med. & ethics 497, 499 (2006) (―because social perceptions of the meaning of race and ethnicity are extremely fluid, basing research findings on these categories or applying scientific findings based on perceived race or ethnicity is fraught with problems.‖). 173 john harris & john sulston, genetic equity, 5 nature 796, 798 (2004). 174 see jessica l. roberts, genetic information nondiscrimination act as an antidiscrimination law, 86 notre dame l. rev. 597, 632–34 (2011) (describing the construction of gina‘s provisions as being based on the anticlassification theory of antidiscrimination). 175 prior to gina, the eeoc settled a lawsuit under the ada with burlington northern santa fe railway (bnsf) to end genetic testing of employees who filed claims for injuries based on carpal tunnel syndrome. bnsf sought to investigate whether the employees possessed a rare genetic variant that could itself cause carpal tunnel syndrome. see e.e.o.c. v. burlington northern & santa fe ry. co., no. 02-c-0456, 2002 wl 32155386 (e.d. wis. may 8, 2002). this testing would certainly be disallowed under gina, as would testing to see if employees were susceptible to carpal tunnel syndrome—even if the outcome would not be to fire those employees, but rather to reassign them or otherwise accommodate them. beyond protecting genetic privacy vol. 2:2 308 employee will fall through the cracks.176 thus, while gina may represent an important first step, it is important to ensure that antidiscrimination in the genetic information context does not follow the anticlassification paradigm that fails to recognize the existence of any harm associated with discrimination other than the mere social and emotional stigma of categorization. the example of the united nations convention on the rights of persons with disabilities (―uncrpd‖) may be instructive. the uncrpd considers the importance of social rights, such as the rights to health care, income assistance, education, and other critical social services needed by a person with a disability given their particular circumstances.177 similarly, genetic information manifests itself as an anticipated need for additional social services based on genetic risk, such as medical care. consequently, there ought to be an analogous consideration of social rights in addition to basic civil rights. at the present time, while they are a part of the european union‘s charter of fundamental rights, social rights seem to be outside the realm of american constitutional law, at least as it is currently being interpreted by the supreme court and understood by legislators and the public. 178 however, it is likely that much of the american attitude towards social rights is based on the ideal of individualism, which eschews collective responsibility for what is believed to be under individual control, or for problems that only affect ―other people.‖ the reality of genetic information is that everyone has dna sequences that suggest the potential for acquiring a disease and manifesting a disability. that means that our genomes teach us that we are all at risk of being left out of the social mainstream, regardless of our racial, ethnic, gender, or economic classification at the present time. even if exactly how far we are left out of the mainstream will depend on where we start from, we all risk something in the absence of a collective safety net and a society that does not concern itself with the accommodation of physical and psychological variations from what is assumed to be ―normal.‖ it is possible that one consequence of widespread dna sequencing will be the recognition of a need for a social charter as a measure that protects everyone, regardless of one‘s own perceived present social status. this goal will certainly not be reached if genetic information is used to reinforce the divisions that exist within society by validating regressive attitudes about the biological reality of racial and ethnic difference. conclusion applying the science of genomics will be like no other technological advancement. there is not just one single human genome to discover. what we call the ―genome‖ is the collective of all our 176 see mark a. rothstein, gina, the ada and genetic discrimination in employment, 36 j.l. med. & ethics 837, 839 (2008) (―under the ada, an individual with a mild, temporary, or presymptomatic condition does not come within the statutory definition of an individual with a disability. similarly, under gina, an individual with a genetically based, biologically determinable difference beyond genotypic variation but short of phenotypic variation is unlikely to be protected.‖). the bnsf case, described supra in note 174, would seem to suggest that there could be ada coverage, but as rothstein‘s article notes, the supreme court had subsequently reduced the scope of the ada prior to the ada amendments act of 2008. even after the amendments, reasonable accommodations are only required for actual disability. 177 united nations convention on the rights of persons with disabilities, u.n. doc. a/61/611 (dec. 6, 2006). see generally sandra fredman, disability equality: a challenge to the existing anti-discrimination paradigm, in disability rights in europe: from theory to practice 199, 199–218 (anna lawson & caroline gooding eds., 2005); janet e. lord & rebecca brown, the role of reasonable accommodation in securing substantive equality for persons with disabilities: the un convention on the rights of persons with disabilities, in critical perspectives on human rights and disability law 273–307 (marcia h. rioux et al. eds., 2011). 178 see generally stephen p. marks, the past and future of the separation of human rights into categories, 24 md. j. int‘l. l. 209 (2009). 2012 columbia journal of race and law 309 personal dna sequences, each of which contains unique information that is particular to each of us as individuals. thus, there is a dilemma between the universal and the individual, in which individual interests must be protected if information is disclosed to achieve universal benefits in medical research. it will be insufficient to merely attempt to ensure genetic privacy, especially through the current protections based on de-identification and anonymization of personal data in genome-wide association studies. as detailed in this note, genetic information is not like other kinds of medical or other personally identifiable information. genetic information is hard to destroy, especially once it has been translated to computer code. once anonymized, it easily may be re-identified. most important of all, while its import in determining intelligence or behavior is controversial, there is no doubt that an individual‘s dna sequence contains a large amount of sensitive medical information. most critically, compromises to genetic privacy affect family members as much as they do the individual who has either consented to the release of their genetic information or participated in a study that releases genetic information. as the fourth amendment experience with forensic dna testing demonstrates, trying to fit genetic information into our existing legal system for privacy protection runs into practical problems. consequently, the development of new policies that target genetic information differently will not be mere ―genetic exceptionalism,‖ but rather, necessary responses to real problems that already affect people. these issues have all been discussed from the perspective of african americans and other racial and ethnic minorities within the united states because the problem currently exists in that part of the population. because genetic discrimination compounds existing racial discrimination and social disadvantage, it is important to take the current disparate impact of genetic discrimination on african americans into account in establishing strong protections over misuse of genetic information gained through studies to encourage their confidence in medical research and ensure that they do not continue to be underrepresented as the next generation of medicine emerges. more broadly, we can also consider the african american experience with sickle cell disease carrier screening and forensic dna databases as a kind of ―canary in the coal mine‖ which anticipates the potential risks for the population as a whole as genetic studies become more pervasive. from this perspective, developing robust measures to present misuse of personal genetic information should be a critical goal for everyone, irrespective of race. “precious”: a tale of three explanations for childhood maltreatment reginald leamon robinson * introduction precious describes a fictional child’s life, in which the parents severely maltreat her.1 historically, society gave parents the right to assault their children’s bodies,2 if those assaults were not abuse but discipline.3 traditionally, constitutional analysis enshrined those *  professor of law, howard university school of law, washington, d.c. i wish to thank professor anthony farley for inviting me to participate in this project on crt and marxism. i would also like to thank professor kimberly alderman (wisconsin), dean peter alexander (indiana tech), sylvia ellison, alexandra kedrock, lcsw, professor cheryl larouche (george washington), professor alice noble-allgire (siu), and professor victor romero (penn state) for their support, read, and constructive feedback. i would especially like to thank professor lenese herbert (albany, visiting howard 2012-2013) not only for her very close read but also for our four-day talk about the essay and its personal and social implications. 1  see generally sapphire, push: a novel (1996) [hereinafter sapphire]; precious (lionsgate 2009) (a story about how a young girl abused by her mother and father who overcomes adversity). 2  see, e.g., johnson v. state, 1840 wl 1574, at *1 (tenn. dec. 1840) (judge turley states, “[t]he right of parents to chastise their refractory and disobedient children is so necessary to the government of families, to the good order of society, that no moralist or lawgiver has ever thought of interfering with its existence, or of calling upon them to account for the manner of its exercise, upon light or frivolous pretences.”). 3  see, e.g., hinkle v. state, 26 n.e. 777, 778 (ind. 1891) (chief judge olds states, “parents bringing children into the world owe to them and to the community the duty of caring for and properly training them in infancy, and curbing the evil tendencies at a time and at an age when it can be done without resorting to excessive punishment and cruel and inhuman treatment[.]”). even today, some advocates for ending corporal punishment have so deeply internalized the right of parents to use violence against their children as part of proper child-rearing practices that they mentally uncoupled the impact of corporal punishment from its damage not only to children but also the 435 “precious” vol. 1:3 rights,4 and parents had autonomy to rear and discipline their children as they saw fit.5 unfortunately, when parents abused their children and were prosecuted,6 few exculpatory and justificatory explanations were offered.7 today, we know that parents who abuse have suffered abuse, too.8 hence, precious’ parents’ consequential cost to society. see murray a. straus with denise a. donnelly, beating the devil out of them: corporal punishment in american families and its effects on children, at iv (2001) [hereinafter straus with donnelly] (in response to a reporter’s question “on whether parents should prohibited from spanking, [the director of an organization devoted to ending corporal punishment in schools] said a few swats on the rear by loving parents is nothing to worry about.”). 4  see generally meyer v. nebraska, 262 u.s. 390, 399 (1923) (the fourteenth amendment’s liberty interest “denotes . . . the right . . . to . . . establish a home and bring up children.”); pierce v. society of sisters, 268 u.s. 510, 534 (1925) (under meyer, “the act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”). 5  see, e.g., roe v. doe, 272 n.e.2d 567, 570 (n.y. 1971) (“it is the natural right, as well as the legal duty, of a parent to care for, control and protect his child from potential harm, whatever the source and absent a clear showing of misfeasance, abuse or neglect, courts should not interfere with that delicate responsibility.”). 6  see, e.g., people v. karen p., 692 n.e.2d 338 (ill. app. 1998) (reversing a lower court and ruling that mother’s frequent use of wooden spoon to spank child was not excessive corporal punishment); in re ethan h., 609 a.2d 1222 (n.h. 1992) (lower court finding that mother abused her sevenyear old child by spanking her with a belt, which caused bruises, was not supported by the evidence); state v. kaimimoku, 841 p.2d 1076 (haw. app. 1992) (court reversing lower court’s conviction of abuse of family and household members because state failed to disprove that father’s use of force against daughter was justifiable discipline of a minor child). 7  see, e.g., people v. karen p., 692 n.e.2d at 339 (karen explained to an agent for the department of children and family services that after attending parenting classes and receiving teachings at her church, “she believed it was wrong to hit with the hand because the hand represents love. therefore, it was better . . .to use an object such as the wooden spoon, instead of the hand, to discipline.”). 8  see straus with donnelly, supra note 3, at xix (parents “do not realize the harmful side effects of corporal punishment because those effects do not show up until later in life. when a parent spanks a child, there is no obvious clue to signal that this is increasing the chance that the child will grow up to beat his wife, physically abuse her children, or suffer from mental illness or other social and psychological ills.”). see also john head, black men and depression: saving our lives, healing our families and friends 1-27, 28-53 (2004) (devoting four paragraphs to his childhood upbringing by a single mother who divorced his father when he was four years old, head faults not childhood maltreatment but american slavery and racism 2012 columbia journal of race and law 436 childhood histories help to explain her maltreatment and reveal the best framework for the etiology of her horrific suffering.9 this essay proffers three explanations: critical race theory’s (crt) race consciousness, karl marx’ alienation theory, and alice miller’s psycho-existential framework. each approach may explain why parents maltreat their children. in brief, crt and alienation theories operate at structural levels, well above the intergenerational transfer of actual suffering from parent to child. to be sure, structuralist theories may explain why black children like precious suffered horrific maltreatment not by faulting the parents but by pointing to external, objective forces like white racism.10 crt begins by analyzing slavery, jim crow, and the breakdown of the black family.11 marxism likewise starts by critiquing an economic world in which capitalism’s slavery exploited workers and black slaves.12 yet, violent, physical assaults against children predate for the chronic depression among black men within the black community, saying, “america’s failure to address the damage that depression does to african american men is rooted, in part, in prejudice and stigma that date all the way back to the docking of that first slave ship”). 9  see, e.g., kealan oliver, 9-year-old says “ex-mom” renee bowman murdered step-sisters, kept bodies in freezer, cbs news, feb. 18, 2010, http://www.cbsnews.com/8301-504083_162-6217712-504083.html (“the girl said bowman repeatedly beat her and her sisters with a baseball bat and a shoe. she also stated she was beaten the worst on ‘the back part and the front part,’ using her teddy bear to demonstrate where she was hit. she pointed to its backside and its crotch.”). 10  see alice miller, banished knowledge: facing childhood injuries 33 (leila vennewitz trans., 1990) (1988) [hereinafter miller, banished knowledge] (“a black psychology student in a group in london once told me, ‘from the very beginning i was physically, psychically, and sexually abused’ . . . ‘our parents claim to have learned cruelty from whites and deny their own parents’ contribution.’ ”). 11  see, e.g., adrian wing & laura wesselman, transcending traditional notions of mothering: the need for critical race feminist praxis, 3 j. gender race & just. 257, 262 (1999) (in arguing against the white essentialist, ideal mother, which displaces the black women as proper, these authors begin with slavery as the source of this displacement and argue for patricia hill collin’s “othermothering”, which includes a broad range of non-white potential caregivers). 12  see karl marx, capital: a critical analysis of capitalist production 759-60 (frederick engels ed., 1977) (1887) (“whilst the cotton industry introduced child-slavery in england, it gave in the united states a stimulus to the transformation of the earlier, more or less patriarchcal slavery, into a system of commercial exploitation. in fact, the veiled slavery of the wage-workers in europe needed, for its pedestal, slavery pure and simple in the new world.”). 437 “precious” vol. 1:3 american negro slavery and modern capitalism,13 which mean that neither of them would completely and persuasively explain childhood maltreatment. and neither approach takes us beyond believing that external, objective forces have constructed our abusive imaginations,14 which are enforced by the hegemonic workings15 of powerful whites and white structural oppression.16 unlike these approaches, miller’s framework existentially and interpersonally accounts for carl jones and mary johnston’s use of “poisonous pedagogy”17 to rear and maltreat precious. accordingly, precious’ parents’ own repressed trauma becomes the prime mover in her maltreatment, the darkness of which is often covered symbolically and legally by the parents’ legal right to beat 13  see generally mason p. thomas, jr., child abuse and neglect, part i: historical overview, legal matrix, and social perspectives, 50 n.c. l. rev. 293, 295 (“under ancient roman law the father had a power of life and death (patria potestas) over his children that extended into adulthood. he could kill, mutilate, sell, or offer his child in sacrifice. while infanticide was not common in rome, exposure was widespread.”). 14  cf. robert w. gordon, unfreezing legal reality: critical approaches to law, 15 fla. st. u. l. rev. 195, 198 (1987) (“ordinary discourses of law . . . all contribute to cementing this feeling, at once despairing and complacent, that things must be the way they are and that major changes could only make them worse”). 15  see, e.g., robert w. gordon, new developments in legal theory, in the politics of law: a progressive critique 413, 418 (david kairys ed., 1982) (citing antonio gramsci’s notion of hegemony who argued “that the most effective kind of domination takes place when both the dominant and dominated classes believe that the existing order, with perhaps some marginal changes, is satisfactory, or at least represents the most that anyone could expect, because things pretty much have to be the way they are”); kimberlé williams crenshaw, race, reform, and retrenchment: transformation and legitimation of antidiscrimination law, 101 harv. l. rev. 1331, 1351 (1988) [hereinafter crenshaw, race, reform, and retrenchment] (“the concept of hegemony allows critical scholars to explain the continued legitimacy of american society by revealing how legal consciousness induces people to accept or consent to their own oppression.”). 16  see reginald leamon robinson, human agency, negated subjectivity, and white structural oppression: an analysis of critical race practice/praxis, 53 am. u. l. rev. 1361, 1363 (2004) [hereinafter robinson, human agency] (“within a broad structuralist framework, white structural oppression refers to practices like racism that constitute an objective, external power that robs people of their natural right to be free human beings.”). 17  see generally alice miller, for your own good: hidden cruelty in child-rearing and the roots of violence (hildegarde hannum & hunter hannum trans., 4th ed. 2002) (1980) [hereinafter miller, for your own good] (analyzing the maltreatment effects of education and child rearing on children through the “pedagogical approach”). 2012 columbia journal of race and law 438 their children.18 this essay argues that unlike crt and alienation theory, miller’s psycho-existentialism best explains precious’ dire experiences because it accounts for carl and mary’s more than certain abusive childhood experiences, it links mary’s abusive experiences to her use of withering obedience training, and it helps us connect mary’s repressed authentic feelings19 to the need to maltreat her own child. part i provides an overview of precious and some specific maltreated experiences that precious suffers. part ii applies crt’s race consciousness premise, marx’s alienation theory, and miller’s psycho-existentialism, and concludes that psycho-existentialism best explains precious’ severe maltreatment. psycho-existentialism explains the violent forces that impacted precious were not the present effects of past discrimination, modern discrimination, or the disfiguring class oppression of workers under evolving capitalism. against these so-called external, impersonal, and objective forces, psycho-existentialism posits that carl and mary’s inability to access their own repressed childhood trauma—which through “emotional blindness”20 unconsciously urged them to abuse precious directly or by proxy—caused what they did to her.21 finally, part iii serves as the essay’s conclusion. 18  see generally chronister v. brennenman, 742 a.2d 190 (pa. 1999) (overturning a order of protection against a father who hit his daughter four or five times on the buttocks because she lied to him, holding that such discipline or punishment did not constitute abuse within the meaning of the protection from abuse act); leon sheleff, generations apart: adult hostility to youth (1981) (arguing that freud and neo-freudian scholars use the oedipus complex to perhaps unconsciously depict power implications of fathers killing their children, primarily sons, because it permitted them to repress the obviousness of parents warring against their children). see also infra notes 150-151 (discussing and applying alice miller’s psycho-existential framework to precious). 19  see miller, banished knowledge, supra note 10, at 2 (suggesting that a child’s authentic feelings start in infancy, “he relies entirely on those around him to hear his cries . . . . the only possible recourse a baby has when his screams are ignored is to repress his distress, which is tantamount to mutilating his soul, for the result is an interference with his ability to feel, to be aware, and to remember”). 20  see id. at 37 (emotional blindness “is the consequence of a repression of feelings and memories that renders a person unable to see certain sets of circumstances.”). 21  id. at 2-3 (“[maltreated parents] will not remember the torments to which they were once exposed, because those torments, together will the needs related to them, have all been repressed: that is, completely banished from consciousness.”). 439 “precious” vol. 1:3 i. precious and mary’s obedience training the evidence is ever more conclusive that cp [corporal punishment] is counterproductive and has harmful psychological effects.22 a. a brief overview in precious, carl and mary severely maltreated their child by raping, assaulting, and humiliating precious.23 mary further exposed precious to physical24 and emotional harm25 by failing to protect her. after precious had her first child by carl at age twelve,26 carl abandoned the family.27 however, before his death,28 mary took her daughter to her pedophiliac father, thus further exposing her child to harm and to his carnal depravity.29 22  straus with donnelly, supra note 3, at xv. 23  see generally sapphire, supra note 1. shortly after precious has her first child, the nurses collect data on her mother, her father, and the baby’s father. “ ‘father,’ she say. ‘what’s your daddy’s name?’ ‘carl kenwood jones, born in the bronx.’ she say, ‘what’s the baby’s father’s name?’ i say, ‘carl kenwood jones, born in the same bronx.’ ” id. at 12. 24  see diana j. english, the extent and consequences of child maltreatment, 8 the future of children 39, 41 (1998) (defining physical abuse as “an act of commission by a caregiver that results or is likely to result in physical harm, including death of a child. examples of physical abuse acts include kicking, biting, shaking, stabbing, or punching of a child. spanking a child is usually considered a disciplinary action, although it can be classified as abusive if the child is bruised or injured”). 25  id. at 41 (defining emotional harm as “[a]n act of commission or omission that includes rejecting, isolating, terrorizing, ignoring, or corrupting a child. examples of emotional abuse are confinement; verbal abuse; withholding sleep, food, or shelter; exposing a child to domestic violence; allowing a child to engage in substance abuse or criminal activity; refusing to provide psychological care; and other inattention that results in harm or potential harm to a child. an important component of emotional or psychological abuse is that it must be sustained and repetitive.”). 26  sapphire, supra note 1, at 12. 27  id. at 19-20. 28  id. at 87 (“ ‘your daddy dead’ . . . so what! i’m glad the nigger’s dead. no, i don’t mean that, but so what. mama quiet. mama say, ‘carl had the aids virus.’ ”). 29  id. at 25-26 (“she bring him to me. i ain’ crazy, that stinky hoe give me to him. thas’ what he require to fuck her probably, some of me.”). 2012 columbia journal of race and law 440 by sixteen, precious’ dark, brutal world began to implode, perhaps for the best. she was pregnant with carl’s second child.30 discovering her pregnancy, a white school administrator required her to attend alternative educational program, “each one teach one.”31 at this program, precious realized that she no longer needed to be mary’s exploited slave.32 precious also experienced growth, learned to read, began to trust in others,33 struggled with self-denial,34 and embraced a life as a devoted mother,35 in which she would not suffer mary’s maltreatment.36 30  id. at 10 (the ems officer who helped precious deliver her child said, “precious, it’s almost here. i want you to push, you hear me momi, when that shit hit you again, go with it and push, preshecita. push.’ ”). 31  id. at 6-8, 15-16 (once her teachers and administrators recognized that she was pregnant, they required her to leave the high school and to attend the alternative program. initially, precious cannot understand why she’s forced to leave, believing that she’d done nothing, and that her grades were good.). 32  id. at 64 (after attending the “each one teach one” program for a month, precious realized that she was not invisible anyone, unlike her experience at home when she is living with her mother); id. at 66 (precious believed mary would have killed her if she’d not be receiving a welfare check for her daughter and her first son). 33  id. at 139. precious was headed to a body positive meeting, and she needed “miz mom” to watch abdul. miz mom gave precious until 6:30 pm to go and come back, and she offered precious three dollars, which caused a slight inner psyche break within her because precious realized that adult maternal figures can treat her with love, kindness, and respect. precious thinks, “something tear inside me. i wanna cry but i can’t. it’s like something inside me keeps ripping but i can’t cry. i think how alive i am, every part of me that is cells, proteens, neutrons, hairs, pussy, eyeballs, nervus sistem, brain. i got poems, a son, friends. i want to live so bad.” 34  see, e.g., id. at 115-16 (in response to ms. rain’s request to have precious and others write down their fantasies if life were perfect, precious reveals her first of three perfect worlds: “i would be light skinned, thereby treated right and loved by boyz. light even more important than being skinny; you see them light-skinned girls that’s big an’ fat, they got boyfriends. boyz overlook a lot to be wif a white girl or yellow girl, especially if it’s a boy that’s dark skin wif big lips or nose, he will go ape over yellow girl.”). 35  id. at 120-21 (precious reads from file, in which ms. weiss makes observations about her generally and about her commitment to parenting her second son, abdul. ms. weiss writes: “precious attends to his needs a-s-s-i-du-o-s-l-y (whatever!) and with great affection and ee-” (“ ‘eagerly,’ ” jermaine say) “ ‘seeks any and all information on child rearing. (i guess so i’m his mother!)’ ”). 36  id. at 119 (ms. weiss states, “ ‘you know your mother’s been calling here wanting to come visit.’ ” and precious responds, “ ‘no, i didn’t know that.’ ” ms. weiss replies, “ ‘would you like to have her come into a 441 “precious” vol. 1:3 despite her growth, precious still did not know why she had suffered maltreatment.37 without knowing, precious would continue to repress the pain of her parents’ betrayal. unfortunately, repression will not stave off precious’ anger, which eventually will affect everyone and everything around her.38 for example, mary’s repressed childhood history more than likely accounted for her horrific maltreatment of precious.39 as such, precious likewise could impose her trauma on her two children.40 nevertheless, after leaving mary, precious did excel.41 unfortunately, excelling and reading will not, without more, help precious to access her lost childhood history and to truly overcome what carl and mary did to her. counseling session with you?’ ” precious responds back, “ ‘i don’t know, i never think about it before.’ ”). 37  see alice miller, free from lies: discovering your true needs 11 (andrew jenkins trans., 2007) [hereinafter miller, free from lies]. on this point, miller states: [i]n adulthood, the combination of infant confusion and the denial of suffering obviously instills reluctance or downright refusal to reflect on the problem posed by inflicting physical punishment on small children. mental blockades (and the fear underlying them) prevent us from asking ourselves how this confusion originated in the first place. accordingly, we fend off everything that would lead to such reflection. id. (emphasis added). 38  see, e.g., sapphire, supra note 1, at 4. precious obviously responded to a stressful, perhaps embarrassing moment, especially because she wanted to hide that she could not read, with anger. on the first day of math class, her teacher says, “ ‘[c]lass turn the book pages to page 122 please.’ i don’t move. he say, ‘miss jones, i said turn the book pages to page 122.’ i say, ‘mutherfucker i ain’t deaf!’ the whole class laugh. he turn red. he slam his han’ down on the book and say, ‘try to have some discipline.’ he a skinny little white man about five feets four inches. a peckerwood as my mother would say.” id.; id. at 5 (“i didn’t want to hurt him or embarrass him like that you know. but i couldn’t let him, anybody, know, page 122 look like page 152, 22, 3, 6, 5—all the pages look alike to me.”). 39  see miller, banished knowledge, supra note 10, at 4 (“and later, as adults, they had themselves forgotten such experiences . . . . but somehow they must have known, their brains had obviously stored the knowledge, for in a sort of compulsive repetition they passed on their traumatic experiences to their children, again oblivious to the consequences.”). 40  id. 41  see sapphire, supra note 1, at 120 (ms. weiss states that precious made great strides in the past year, thus receiving the “mayor’s award for outstanding achievement.”). 2012 columbia journal of race and law 442 at “each one teach one,” precious needed an “enlightened witness,”42 who would tell her directly that carl and mary were wrong to maltreat her. her teacher, ms. rain, encouraged her with positive feedback, helping her to understand that institutional markers like reading scores cannot determine her future.43 her social worker, ms. weiss, wanted her to access memories of her parents,44 without telling precious that her childhood history, however traumatic, would promote healing by faulting her parents.45 accordingly, her teacher and social worker were not “potential helpers.”46 even if precious could appreciate the impact of white racism or answer questions about her memories of her parents, precious would still fault whites, who would serve as 42  alice miller, the truth will set you free: overcoming emotional blindness and finding your true adult self, at x-xi (andrew jenkins trans., 2001) (“in adult life, a role similar to that of childhood's helping witness may be taken over by an enlightened witness. by this i mean someone who is aware of the consequences that neglect and cruelty in childhood can have. enlightened witnesses support these harmed individuals, empathize with them, and help them gain an understanding of their feelings of anxiety and powerlessness as products of their own history rather than as some frightening, mysterious force.”). 43  sapphire, supra note 1, at 110. in response to precious saying that she has a 2.8 score, ms. rain says, “it’s a number! and can’t no numbers measure how fair i done come in jus’ two years. she say forget about the numbers and just keep working. . . . don’t worry about numbers and fill in the blank, just read and write!” id. 44  id. at 117-19 (ms. weiss asked precious about the first memories of her mother). 45  see miller, banished knowledge, supra note 10, at 28-29. miller describes therapy that helps clients feel their anger: first, through reawakened feelings, he will sense the awakening of life within him and won’t want to jeopardize that life. second, feelings that can be associated with childhood experiences can change over time and make way for new feelings. the anger directed at parents remains unchanged as long as we cannot feel it, because we fear this anger, feel guilty about it, and are afraid of the parent’s revenge. once this fear has been experienced . . . and its ramifications have been understood, we are no longer compelled to feel guilty . . . . this liberation reduces the anger. id. 46  id. at 7 (“by ‘potential helpers’ i mean all those who do not shrink from unequivocally taking the side of the child and protecting him from power abuse on the part of adults.”). 443 “precious” vol. 1:3 proxies for her fear of blaming carl and mary.47 in the end, rain and weiss cannot empower precious,48 unless she knows her childhood history and can fault her parents.49 b. precious: innocent child, or “nasty ass tramp” “slut! nasty ass tramp! what you been doin’! who! who!”50 from the moment that carl actually raped his daughter and that mary abused her, precious was clearly an innocent, helpless, and defenseless infant. nevertheless, they emotionally demeaned her.51 they physically assaulted her. they psychologically dominated her. they destroyed her innocence by forcing her to please their base, carnal needs. throughout precious, neither carl nor mary ever 47  cf. arthur janov, why we get sick and how you get well: the healing power of feelings 20 (1997) [hereinafter janov, why we get sick]. survival and continuity do not end the neurotic suffering. his needs: [c]ontinue through life, exerting a persistent, unconscious force toward the satisfaction of those needs. but because the needs have been suppressed in the consciousness, the individual must pursue substitute gratification. because he was not allowed to express himself as an infant, he may be compelled to try to get others to listen and understand later in life. id. 48  see generally charles r. lawrence, iii, the word and the river: pedagogy as scholarship as struggle, 65 s. cal. l. rev. 2231 (1992) (arguing in part that we can empower ourselves by identifying with the struggles of minorities like blacks who were historically oppressed by external, independent forces under the control of whites). but see reginald leamon robinson, the word and the problem of human unconsciousness: an analysis of charles r. lawrence’s meditation on racism, oppression, and empowerment, 40 conntemplations 1 (2008) (arguing that the word cannot empower individuals because racism, sexism, and oppression are co-created experiences that depend at the very least on the human unconsciousness of blacks and whites, too). 49  see miller, banished knowledge, supra note 10, at 23 (“for the fear of blaming our parents reinforces the status quo: the ignorance and the transference of child-inimical attitudes persist.”). 50  sapphire, supra note 1, at 9. 51  id. at 14 (“my muver jump in and say, ‘press listen stupid!’ i wanna say i ain’ stupid but i know i am so i don’t say nothing.”). 2012 columbia journal of race and law 444 expressed any shame or guilt about what they had done to their daughter.52 by the time she shouted “slut! nasty ass tramp!” mary had more than likely broken precious’ will. precious thus had learned to rationalize and accept her mother’s violence.53 apart from muttering “i hate her,” she just tolerated this maltreatment.54 by not recalling what carl and mary had done to her body, precious would virtually tolerate any form of maltreatment from her parents,55 perhaps in the worst case believing that her parents’ cruelty was love.56 “slut! nasty ass tramp!” symbolically means more than disrespect. coming from mary, these words revealed how precious was required to see herself and others in her world.57 in a prior 52  see miller, banished knowledge, supra note 10, at 8 (“by the time of my therapy i had grasped . . . that i had been abused as a child because my parents had undergone similar experiences in their childhoods . . . . because they—like the analysts in my training—were not allowed to feel and thus understand what had happened to them in the past, they were unable to recognize the abuse and passed it on to me without a trace of guilty feelings.”). 53  id. at 21 (arguing that through repression and rationalizations, children fear blaming their parents for the suffering that parents impose on them). see sapphire, supra note 1, at 76 (even where precious has a desire to fight back, saying: “i had told myself if she ever come at me like that again i will stab her to def. but when it happen, when she git up off that couch ‘n charge toward me like fifty niggers, i ran.”). 54  see, e.g., sapphire, supra note 1, at 14 (“i’m still grabbing the knife. i hate my muver sometimes. she is ugly i think sometime.”); id. at 25 (“where i gonna go to work, how i’m gonna get out her house? i hate her.”). 55  see miller, for your own good, supra note 17, at 4 (“[children] have no previous history standing in their way, and their tolerance for their parents knows no bounds. the love a child has for his or her parents ensures that their conscious or unconscious acts of mental cruelty will go undetected.”). miller goes on to write: [t]he conviction that parents are always right and that every act of cruelty, whether conscious or unconscious, is an expression of their love is so deeply rooted in human beings because it is based on the process of internalization that takes place during the first months of life—in other words, during the period preceding separation from the primary care giver. id. at 5. 56 see miller, banished knowledge, supra note 10, at 33 (“love and cruelty are mutually exclusive.”). 57  see id. at 46 (“in their behavior these children reflect in every detail the brutality they experienced at home and reveal unmistakably where they learned their destructive behavior.”). 445 “precious” vol. 1:3 generation, mary too had suffered obedience training. by “obedience training,” miller means that parents intend to cure a child of in-born impulses to be willful, definitive, lie, cry, rage, or other emotional outbursts.58 mary would do to precious what was done to her: enforce order and authority. to do so effectively, mary would begin such training in precious’ infancy.59 by permitting carl to rape precious, mary unconsciously sought to dominant her. although obedience training does not perforce include incestuous rape, mary’s actions conflated them. moreover, by viewing her as impure, mary saw precious as a sexual competitor, thus permitting mary to attack her daughter as she would any home wrecker.60 “thank you miz claireece precious jones for fucking my husband you nasty little slut!”61 mary’s words excused carl’s assaultive act, denied her role in carl’s first rape, and unloaded onto precious her “ ‘impure’ sexuality by ascribing it to the child through projection.”62 thus mary’s words rejected precious’ innocence, making her responsible for her own maltreatment. by spewing “slut! nasty ass tramp!” at her daughter, mary also impliedly suggested that precious had been the sexual instigator—a precocious child whose silence of her pregnancy 58  see diane connors, alice miller: for your own good—an interview, omni publications international (1987), available at http://www.no spank.net/miller4.htm (last visited july 15, 2012) (“my antipedagogical position is not directed against a specific type of pedagogy,” miller notes, “but against pedagogical ideology in general, which can be found also in the permissive theories.” she fears that as a consequence of adults’ arrogant attitudes—including “permissive” attitudes—toward children’s feelings, children are trained to be accommodating. but their own voices will be silenced, and their awareness killed. and more blind and arrogant adults will be the result.). see also philip greven, spare the child: the religious roots of punishment and the psychological impact of physical abuse 21 (1991) (“her system of discipline, was begun at a very early age, and it was her rule, to resist the first, as well as every subsequent exhibition of temper or disobedience in the child, however young, until its will was brought into submission to the will of its parents: wisely reflecting, that until a child will obey his parents, he can never be brought to obey god.”). 59  see generally miller, for your own good, supra note 17, at 391. 60  see sapphire, supra note 1, at 20 (“fat cunt bucket slut! nigger pig bitch! he done quit me! he done left me ’cause of you.”). 61  id. 62  miller, banished knowledge, supra note 10, at 43. http://www.nospank.net/miller4.htm http://www.nospank.net/miller4.htm 2012 columbia journal of race and law 446 confessed her impurity.63 however, precious’ ignorance and innocence were real. although she knew about sex and sperm,64 precious still did not know how a fetus grew within her.65 in mary’s eyes, however, precious became a wicked child, one who sexually seduced her own father.66 perhaps, having repressed her anger, and having revisited her own recriminations, mary projected guilt, or at least complicity, onto precious: “she some kinda freak baby then.”67 thus, mary had a socialized “other,” her evil daughter, who she could appropriately fight, hate, and fault. after hurling the invective “slut” at her daughter, mary could rationalize that precious, an evil child, lied against good, 63  see jeffrey moussaieff masson, the assault on truth: freud’s suppression of the seduction theory 130-31 (ballantine books ed., 2003) (1984). on this point, freud writes: [o]ne was readily inclined to accept as true and aetiologically significant the statements made by patients in which they ascribed their symptoms to passive sexual experiences in the first years of their childhood—to put it bluntly, to seduction. when this aetiology broke down under the weight of its own improbability and contradiction in definitely ascertainable circumstances, the result at first was helpless bewilderment. analysis had led back to these infantile sexual traumas by the right path, and yet they were not true. . . . this reflection was soon followed by the discovery that these fantasies were intended to cover up the autoerotic activity of the first years of childhood, to embellish it and raise it to a higher plane. sigmund freud, on the history of the psychoanalytic movement (1914), reprinted in the standard edition of the complete psychological works of sigmund freud, vol. xiv, at 17-18 (james strachey ed., 1971) [hereinafter freud, the standard edition]. but according to masson, freud misread karl abraham’s point, in which he argued that “certain children are seductive, desire the seduction, provoke it, and, the tone suggests, deserve it.” masson, supra note 63, at 131. 64  sapphire, supra note 1, at 22 (“she felt her mother’s hand between her thighs. she stirred, felt her mother’s strong fingers and thumb gather into a pinch. she stopped moving and fell back further into the couch as if she was asleep. she didn’t have to open her eyes, she knew by the smell in the room her mother’s hand was between her own legs . . . . her mother’s hand inched up precious’ thighs into the wet opening of her vagina. precious fell for real now into the sleep she had been faking.”). 65  id. at 12 (“i didn’t know how long it take, what’s happening inside, nothing, i didn’t know nothing.”). 66  see miller, banished knowledge, supra note 10, at 40-42 (discussing the mistaken view that children were wicked and thus implicitly responsible for the sexual abuse they suffer.) 67  sapphire, supra note 1, at 136. 447 “precious” vol. 1:3 loving parents. mary needed to see herself as good mother who was demonized by her lying child.68 she also needed ms. weiss, another adult, to join her delusion. and so mary later told ms. weiss, “my little scorpio chile! scorpio’s crafty. i ain’ saying they lie, jus’ you cain’t always trust ’em.”69 and although an older precious knew that mary was her tormentor,70 mary’s invective and her characterizing precious as a liar revealed yet another disfiguring implication of obedience training: first, internalize your parent’s point of view—you’re lying; second, repress your true feelings; and third, reject your actual traumatic memories. in short, mary told precious how to understand her pain. yet, mary’s hypocrisy underscored her own repressed trauma. mary likely had learned not to fault her caregivers but to blame herself. for example, as he began to fondle his daughter, carl’s simple but strong words muted mary’s anemic protest: “shut your big ass up! this is good for her.”71 by linking parental rape to good, carl unconsciously revealed a contradiction that was more than likely used by a parental figure or caregiver to rationalize why she traumatized him when he (and mary) was a child.72 like carl, mary then dissociated, which separates feelings from traumatic pain. and having repressed her authentic feelings again, mary could not feel precious’ pain, and so 68  id. at 133-34. mary said: i’m a good mother. she had everything. i done tole her that. pink ’n white baby carriage, little pink bootie socks, dresses; everything i put on her pink. precious, she, so smiling and healthy. a day don’t go by i don’t take her out wheeling in the air. even when it’s cold i take her out, to church, to somewhere, me ’n carl—my husband, i call him—loves precious. i loves him. id. 69  id. at 134. 70  id. at 137. 71  id. 72  see miller, banished knowledge, supra note 10, at 33 (parents “would not stop [traumatizing their children] if they were told, as were their own parents thirty years earlier, that one slap more or less does no harm, provided they love the child. although this phrase contains a contradiction, it can continue to be handed down because we are used to it. love and cruelty are mutually exclusive. no one ever slaps a child out of love but rather because in similar situations, when one was defenseless, one was slapped and then compelled to interpret it as a sign of love. this inner confusion prevailed for thirty or forty years and is passed on to one’s own child.”). 2012 columbia journal of race and law 448 she cannot protect precious.73 rather, mary easily became distracted by carl’s penis, which “almost can go in precious!”74 with only feelings for herself, mary wanted carl to stop, not to protect her innocent child, but rather so that her child would not displace her: “he her daddy, but he was my man!” still hoping that ms. weiss would enable her repressed feelings, mary declared: “so you can’t blame all that shit happen to precious on me.”75 in effect, mary’s “nasty ass tramp!” impliedly argues: do not blame me. who then should ms. weiss blame? given mary’s more than likely traumatic childhood, she had learned to fear faulting her parents. and those children like precious who do must be liars. moreover, by implication, mary cannot access her repressed memories, and she had hoped that obedience training would shut precious’ mouth. yet, if mary could convince ms. weiss that precious was precocious and lied, and if ms. weiss had agreed with her, precious could have set herself back, a violation to her psychological integrity.76 at the very least, mary would escape judgment, and precious would suffer what disobedient black children deserve when they defy, lie, disrespect, and dishonor their good, devoted parents.77 73  see id. at 30 (“if a mother could feel how she is injuring her child, she would be able to discover how she was once injured herself and so could rid herself of her compulsion to repeat the past.”). 74  sapphire, supra note 1, at 134. 75  id. at 136. 76  see masson, supra note 63, at 133. he writes: to tell someone who has suffered the effects of a childhood filled with sexual violence that it does not matter whether his memories are anchored in reality or not is to do further violence to that person and is bound to have a pernicious effect. a real memory demands some form of validation from the outside world—denial of those memories by others can lead to a break with reality, and a psychosis. the lack of interest in a person’s store of personal memories does violence to the integrity of that person. id. 77  cf. miller, banished knowledge, supra note 10, at 30 (“for thousands of years, all religious institutions have exhorted the faithful to respect their parents . . . . but when a person has no reason to respect his parents, he must, it seems, be coerced into doing so. the dangerous effect of such coercion is that any criticism of parents is called a sin and results in strong feelings of guilt. because religions teach that parents, even if already dead, must be shielded under any circumstances, they do so at the cost of the parents’ children.”). 449 “precious” vol. 1:3 regardless, since her infant rape, precious carried repressed trauma in her body. she harbored latent hatred for carl. she expressed quietly her clear anger and hatred of mary. because mary never told her the truth, precious would remain confused, and she could only access what she had repressed through a dream, which symbolically revealed but actually hid experiences that she had suffered in infancy, lest the recalled pain might kill her.78 in one such dream, precious relived one of her infant assaults, in which mary forced her to perform oral sex. “i am choking between her legs . . . . she is smelling big woman smell. she say suck it, lick me precious.”79 during this dream, mary sweet talked her just as carl did when he would rape her. raped, choking, and suffocating, precious—just like carl and mary—dissociated or split off, thus uncoupling her pain from her repeated rapes. splitting off is repression.80 and for a time, despite its consequences, repression saved precious. in the end, mary’s words, “slut! nasty ass tramp!” attempted to rewrite her brutally exploitative history with precious.81 precious must be at fault. although mary described carl as “a high natured man,”82 precious caused carl to rape her. and by taking her man, precious breached her mother’s trust. put simply, mary was betrayed by another capable, sexually available (infant) woman—her own daughter no less—in her house. ironically, mary and precious perhaps played similar, exploited roles in their childhoods. yet, to prevent herself from recalling her sexual 78  arthur janov, the new primal scream: primal therapy 20 years on 75 (1991) (“it is crucial to understand that nightmares are forms of defense. against what? death. quite literally. for the person in a nightmare is the same as the person on the verge of reliving his birth or other early life and death trauma; his vital signs are lethal in an attempt at fleeing and repressing the pain . . . . therefore, dreams are defenses against nightmares, and nightmares are defenses against death.”). 79  sapphire, supra note 1, at 60 (“that night i dream i am not in me but am awake listening to myself choking, going a huh a huh a huh a huh a huh.”). 80  see janov, why we get sick, supra note 47, at 22 (explaining that while the maltreated child consciously shifts away from her authentic feelings and being so that she can please the parent, she acts increasingly “unreal, that is, not in accord with the reality of [her] own needs and desires. in a short time the neurotic behavior becomes automatic”). 81  sapphire, supra note 1, at 36 (“after my baby and me come out of the hospital my muver take us down to welfare; say i is mother but just a chile and she taking care of bofe us’es. so really all she did was add my baby to her budget.”). 82  id. at 134. 2012 columbia journal of race and law 450 maltreatment and to identify with, and to properly respect, her abusive parents, mary was arguably forced to treat precious sternly because she needed obedience training. yet, throughout precious, mary clearly used her daughter as a proxy for love, care, warmth, compassion, and sexual satisfaction. she could have acquired these affections from an adult male partner, if she had not repressed the trauma of her childhood and could actually express her latent hatred for her own sexual exploiters. in this way, precious is an unfortunate tale of victims who became tormentors of their own daughter. ii. three explanatory tales for childhood maltreatment a. critical race theory: race consciousness and the violent destruction of the black family “crackers is the cause of everything bad. it why my father ack like he do. . . . . so he fuck me, fuck me, beat me, have a chile by me.”83 within crt, race crits adopt a race-consciousness framework, so that they can understand how white supremacy, law, and the “subordination of people of color have been created and maintained.”84 and as part of its antisubordination praxis, race crits wish to alter the “vexing bond between law and racial power.”85 thus, they would perforce explain precious’ maltreatment by looking to slavery and the black family’s breakdown. they would not blame black mothers by default.86 accordingly, present effects of past discrimination deny ordinary 83  id. at 36. 84  kimberlé crenshaw, introduction, in critical race theory: the key writings that formed the movement, at xiii (kimberlé crenshaw et al. eds., 1995). 85  id. 86  see, e.g., wing & wesselman, supra note 11, at 273 (“from slavery on, black women have fallen outside of the class labeled ‘ideal mothers’ . . . moreover, slave mothers were considered bad mothers and blamed for the devastating effects of slavery on their children.”). see also dorothy roberts, killing the black body: race, reproduction, and the meaning of liberty (1997). 451 “precious” vol. 1:3 people,87 especially blacks, latinos, and women, formal and substantive equality.88 although scholars have rejected a purely structuralist approach,89 race crits advance this premise,90 principally because they wish to hold america liable for laws that derive from slavery and that impact people of color today. yet, this structuralist premise deftly poses blacks as victims and fashions whites as singularly powerful reality co-creators, who marginalize blacks, even if they do so unconsciously.91 broadly speaking, to be empowered, blacks must critique not just their self-annihilating, self 87  see robinson, human agency, supra note 16, at 1363 n.9 (defining “ordinary people” as all “non-elite asians, blacks, american indians, latinos, whites, and women, including immigrants”). 88  see, e.g., melvin l. oliver & thomas m. shapiro, black wealth, white wealth: a new perspective on racial inequality (1995) (discussing racial inequality through an analysis of private wealth). 89 see, e.g., robinson, human agency, supra note 16; reginald leamon robinson, the way of sacred tibetan crt kung fu: can race crits teach the shadow’s mystical insight and help law students “know” white structural oppression in the heart of the first-year curriculum? a critical rejoinder to dorothy brown, 10 mich. j. race & l. 355 (2005) [hereinafter robinson, the way of sacred tibetan crt kung fu]; james mcwhorter, losing the race: self-sabotage in black america (2001) (arguing that black americans prevent themselves for attaining what appears to be elusive goals by adopting a mindset in which not their choices but america’s racist history burdens them); james t. patterson, freedom is not enough: the moynihan report and america’s struggle over black family life from lbj to obama 147 (2010) (citing glen loury, a new american dilemma, the new republic, dec. 1984, at 14, in which the harvard economist wrote: “the bottom stratum of the black community has compelling problems which can no longer be blamed solely on white racism and which force us to confront fundamental failures in black society.”). 90  see, e.g., crenshaw, race, reform, and retrenchment, supra note 15, at 1331-87. 91  see generally robinson, human agency, supra note 16 (examining how critical race theory relies on a framework for analyzing african-american slaves and blacks as not having sufficient human agency against white structural oppression); robinson, the way of sacred tibetan crt kung fu, supra note 89 (providing a critique against brown’s critical race theory textbook because it does not adequately demonstrate how law students can use human agency to “know” white structural oppression in the first year curriculum); see also reginald leamon robinson, poverty, the underclass, and the role of race consciousness: a new age critique of black wealth/white wealth and american apartheid, 34 ind. l. rev. 1377, 1438-43 (2001) (book review) (expressly arguing against the idea that blacks lack co-creative power for the personal experiences and social realities in which they participate and/or observe). 2012 columbia journal of race and law 452 deceptive, and life devaluing practices92 but also the core beliefs of the socialized other, viz., whites.93 for race crits, slavery and jim crow show us how whites impacted blacks, especially because they required blacks to brutalize their children, who needed to learn plantation etiquette.94 under this strict obedience norm, children had to abide adults and elders, who strictly enforced compliance by violence95 or humiliation.96 92  see, e.g., renee bowman, children’s remains found in home freezer, grandparents blog-dedicated to austin and isabella, http://un happygrammy-grandparentsblog.blogspot.com/2010/03/adopters-who-abusekill.html (last visited july 15, 2012) (adopting mother murdered two of her three adopted daughters, and she was later arrested, charged, convicted, and sentenced to life in prison after her daughter escaped and was found wandering the streets with lesions on her buttock, open sores, bruises on her hands and lips; in re sean e., 0610977 (md. 2010) (a mother forced her child to shoplift, beat him daily in the car after picking him up from school, threatened to kill him because he ate too slowly, and awoke one night every half hour to place hot pepper seeds in his eyes and to assault him with one or two belts, using either the rounded tip or the bucket end). (this case is a sealed juvenile file.) 93  cf. peter wallsten, for an arizona sheriff, not a moment of silence, wash. post, jan. 10, 2011, at c1, c3 (in explaining why jared loughner shot and wounded twenty people, including representative gabrielle giffords, and killed a nine-year old girl and a federal judge, pima county sheriff clarence dupnik faulted structural factors like mass media, saying “ ‘i’d just like to say that when you look at unbalanced people, how they are—how they respond to the vitriol that comes out of certain mouths, about tearing down government, the anger, the hatred, the bigotry that goes on in this country is getting to be outrageous.’ ”); jason horowitz & lisa demoraes, after traedy, toxic talk in the media cross hairs, wash. post, jan. 10, 2011, at c1, c3 (in response to the loughner shootings, keith olbermann “blamed sarah palin’s rhetoric, saying that if she did not ‘repudiate her own part, however tangential, in amplifying violence and violent imagery in american politics, she must be dismissed from politics.’ ”). 94  marie jenkins schwartz, born in bondage: growing up enslaved in the antebellum south 98 (2000) (“owners recognized the influence of parents had over [their children] and urged them to subdue children and turn them into dutiful and submissive servants.”); id. (white masters required strict obedience to black “mother[s], father[s], other relatives, and caretakers”); id. at 99 (slaves preferred to physically punish their children or switching, rather than allow white masters to impose their will or thwart their parental prerogative, and when “her alabama master tried to punish eliza evans for sassing him, the young girl ran to her grandmother for protection, only to be whipped by the older woman. the master left satisfied that eliza’s insolence had been suitably punished . . . .”). 95  id. at 99 (caregivers used physical violence to force children to participate in “races organized by the overseer at a watermelon feast”). 453 “precious” vol. 1:3 under jim crow, blacks conformed to white privilege and power,97 by teaching their children to know their place98 and to yield to whites.99 blacks taught children to listen “widout no ears en seein widout no eyes.”100 from a race crit perspective, external, objective forces compelled blacks to use the expediency of harsh, brutal punishment so that they could protect their children from the arbitrary vagaries of slavery and white supremacy. this punishment corrupted child-rearing discipline into a dark, preemptive violent abuse.101 in this way, african culture in and of itself cannot explain the harsh physical punishment that blacks inflicted upon their children. thus, black oppression explains why carl and mary maltreated precious.102 according to race crits like kimberlé williams crenshaw, racial subjugation distorts the mindset of blacks, causing them to harm their children. specifically, crenshaw has 96  c.f. herbert gutman, the black family in slavery and freedom 201-20 (1964) (presenting accounts discussing kin relationships that show how parents and elders used respect, emotional control, ridicule, and harsh discipline to teach young children how to survive the travesties of slavery and the trials of jim crow). 97  see leon litwack, trouble in mind: black southerners in the age of jim crow 1-7 (1998) (illustrated by allusion to anecdotal story). 98  see id. at 4 (“son . . . a catfish is a lot like a nigger. as long as he is in his mudhole he is all right, but when he gits out he is in for a passel of trouble. you ‘member dat, and you won’t have no trouble wid folks when you grows up.”). 99  remembering jim crow: african americans tell about life in the segregated south 7 (william h. chafe et al. eds., 2008). 100  schwartz, supra note 94, at 99-100. 101  see, e.g., id. at 101 (“when one little girl in virginia accidentally came upon some adults preparing to eat lamb, a food normally unavailable to slaves, an old man took her ‘out back of the quarter house’ and whipped her severely, explaining: ‘now what you see, you don’t see, and what you hear, you don’t hear.’ ”); id. at 100 (“adult slaves worried about the tendency of young children to blurt out information to the white folks that would prove detrimental to their interest. penny thompson told her master of a plot to help slaves escape from his plantation in alabama.”); litwack, supra note 97, at 413 (exasperated, she remarked: “but do you know, susie never tells us a thing about her life or her friends, and we couldn’t, if we tried, make her tell what goes on in the society she belongs to.”). 102  cf. william julius wilson, more than just race: being black and poor in inner city 151-52 (2009) (“[a]ll poor women could find meaning and purpose in child rearing despite serious financial hardship, and african american women have, on balance, formed particular views on family through unique circumstances tied to their experiences with racial oppression in america.”). 2012 columbia journal of race and law 454 argued that external, objective forces like racism coerce blacks into creating their worlds.103 in this way, racial subjugation becomes hegemonic, which means that the oppressed are complicit in their oppression.104 precious came to realize that external, objective forces explained her suffering, and so she said: “crackers is the cause of everything bad.”105 unfortunately, african child-rearing practices were coercive and enforced with physical discipline.106 according to andrew billingsley, “ashanti fathers (unlike mothers) tend to be overly strict in exacting obedience, deference, and good behavior from their children.”107 since slavery, blacks have prepared their children for the evils they perceived. as in africa,108 children had to respect and 103  cf. crenshaw, race, reform, and retrenchment, supra note 15, at 1357 (“black people do not create their oppressive worlds moment to moment but rather are coerced into living in worlds created and maintained by others. moreover, the ideological source of this coercion is not liberal legal consciousness, but racism.”). 104  id. at 1351 (citing robert gordon, “the most effective kind of domination takes place when both the dominant and dominated classes believe that the existing order, with perhaps some marginal changes, is satisfactory, or at least represents the most that anyone can expect, because thing pretty much have to be the way they are”). 105  sapphire, supra note 1, at 34. 106  see meyer fortes, kinship and marriage among the ashanti, in african systems of kinship and marriage 252, 268 (alfred reginald radcliffe-brown & daryll forde eds., 9th ed. 1967) (the sons’ “moral and civic training, in particular, is [the father’s] responsibility and this gives him the right to punish them if necessary.”); delores e. smith & gail mosby, jamaican child-rearing practices: the role of corporal punishment, 38 adolescence 369, 369-81 (2003). smith and mosby write: the etiology of such harsh disciplinary practices in the caribbean has been pondered. although many arguments have been forwarded, the most pervasive and often cited explanations point back to heritage, history, tradition, and socialization. several authors have expressed the view that the extreme authoritarian style, along with the excessive discipline meted to children, stems from the region’s west african heritage combined with learned behavior, specifically from the brutality of slavery. these dynamics are bolstered by the religious sanction of “saving the rod and spoiling the child.” id. at 373. 107  andrew billingsley, black families in white america 44 (1968) (citing fortes, supra note 106, at 252-84. 108  see gutman, supra note 96, at 219-20 (1976); billingsley, supra note 107, at 44 (citing fortes, supra note 106, at 268) (“to insult, abuse, or assault one’s father is an irreparable wrong, one which is bound to bring ill luck. while there is no legal obligation on a son or daughter to support a 455 “precious” vol. 1:3 defer to adults and elders, which required them to repress their authentic feelings from blacks and nonslaves.109 during slavery, blacks practiced “hardening” by bathing infants in cold water or exposing their limbs to the cold,110 which perhaps contributed to the high infant mortality.111 even if slaves used “hardening” to ensure an infant’s plantation survival,112 infants needed not cold but warmth, love, food, and shelter.113 clearly, “hardening” traumatized an infant’s body. an infant had to learn to repress their authentic feelings, especially anger and fear at not having her immediate needs met. as a toddler, youth, or young adult, that infant would exhibit neurotic tendencies,114 including rigid compliance115 and a close bond with her tormentors.116 however diluted, altered, or corrupted by time and context, blacks still embrace obedience father in his old age, it would be regarded as a shame and an evil if he or she did not do so.”). 109  gutman, supra note 96, at 219. 110  see scahwartz, supra note 94, at 43 (“slaves followed their own customs in caring for newborns . . . . dr. dewees recommended against deliberate ‘hardening’ of children by bathing them in cold water or exposing their limbs to cold.”). 111  id. (“for [dr. dewees], the high mortality rate among poor children, whose parents routinely exposed them to the elements, offered proof that such a strategy did not work to promote health.”). see generally wilma a. dunaway, the african-american family in slavery and emancipation 114-49 (2003) (discussing the structural interferences with breastfeeding and other child-rearing needs by slave parents such as the need for productivity as contributing to higher slave infant mortality rates). 112  schwartz, supra note 94, at 43 (“slave mothers, of course, had a special incentive to ‘harden’ their children. they knew they must prepare their children to survive the years of hardship and deprivation that awaited them.”). 113  see generally alice miller, banished knowledge, supra note 10 (discussing a child’s basic emotional needs and the impact of the child when they are traumatized instead of having their caregivers meet those needs). 114  see janov, why we get sick, supra note 47, at 21 (arguing that if a child begins to suppress his first feelings, the neurotic process begins, and then by the by, the child develops dual selves: one real, the other unreal, and “[t]he unreal self is the cover of those feelings and becomes the façade required by neurotic parents in order to fulfill needs of their own”). 115  see gutman, supra note 96, at 217-20 (elders were treated with respect and had children and adults undergo a strict discipline). 116  see generally sigmund freud, the aetiology of hysteria, in the freud reader 96 (peter gay ed., 1989) [hereinafter freud, the aetiology of hysteria] (children who suffer trauma forge a life-long bond to their exploitative and abusive parents). 2012 columbia journal of race and law 456 training and elder respect, an african child-rearing practice, which in part explains why carl and mary maltreated precious.117 in this way, precious is a novel about obedience, about cruelty as love, about deferring to elders, about knowing your place, and about not trusting non-slaves.118 to be sure, this “old school” parenting was a keystone for black survival. children, innocent and naïve, had to learn to distrust non-slaves. unfortunately, despite the race crit perspective that explains black self-annihilation as a function of white racism, blacks like carl and mary continue to embrace obedience training, not because they need it today, but because they suffer from emotional blindness and a fealty to violent parenting, principally to rationalize how they were abused. after all, we know that abused parents will maltreat their children. in short, “cruelty as love”119 was, and still is, an integral part of black childrearing practices. 117  see abram kardiner & lionel ovesey, the mark of oppression: explorations in the personality of the american negro 7 (1951) (“these unconscious processes occur in representational forms that are disguised either through symbolization, condensation, or several other processes which render them incapable of overt recognition. the grand purpose of this complex maneuver is to prevent these motivations from becoming known, because their acknowledged presence would expose the subject to some danger.”). see also rollo may, the discovery of being: writings in existential psychology 26-27 (1983). arguing against the idea that neurosis means that a person has failed to adjust, may writes: an adjustment is exactly what neurosis is; and that is just its trouble. it is a necessary adjustment by which centeredness can be preserved; a way of accepting nonbeing in order that some little being may be preserved. and in most cases it is a boon when this adjustment breaks down. id. (emphasis in original). 118  see gutman, supra note 96, at 219-20 (“socializing children to respect all elderly blacks also may have taught then to hide slave feelings and beliefs from nonslaves. asked about the attitudes of children toward their parents, laura towne said, ‘i never saw it equaled anywhere—their love and obedience.’ that was so even though parents ‘were exceedingly severe.’ she remembered only one instance of ‘anything like indulgence toward children.’ ‘i think they . . . will bear pain to any extent,’ said towne. ‘if a boy cries too early because he is suffering they will deride him. he must be stoical under trouble and his parents will not suffer complainings. children undergo a regular discipline.’ ”). 119  miller, banished knowledge, supra note 10, at 31. 457 “precious” vol. 1:3 b. marxism: alienation theory and the violence in the black family like crt, marx’s alienation theory120 cannot completely explain why carl and mary maltreated precious. under this theory, marxists first and foremost would appeal to the larger, external forces of capitalism, and they would argue that these objectifying forces have come to increasingly dominate the lives of the poor, women, workers, etc.121 these forces instill workers with poorer inner lives. through the political economy of capitalism, workers became beset by alienated and alienating experiences.122 in short, workers become “nature’s bondsman.”123 by nature’s bondsman, marx meant that workers became slaves, who have very little control over their external worlds, having been tied to machines and “turn[ed] into machines.”124 they would suffer privations, live in hovels, bear deformities, live like brutes, and become mental midgets.125 in effect through the workers’ own hands, capitalism’s external forces made “for the worker idiocy, cretinism.”126 in this way, through the ever-increasing domination of the captains of capitalism, the worker alienated himself from himself.127 alienation can lead to self-annihilating acts (e.g., drug addiction or alcoholism). however, it does not follow that parents, for example, must injure their children. although marx makes it clear that capitalism as an external force hides the alienation that 120  karl marx, economic and philosophic manuscripts of 1844, in the marx-engels reader 66, 71-72 (robert c. tucker ed., 2d ed. 1978) [hereinafter marx, economic and philosophic manuscripts] (“[t]his realization of labour appears as loss of reality for the workers; objectification as loss of the object and object-bondage; appropriation as estrangement, as alienation.”) (emphasis in original). 121  see judy cox, an introduction to marx’s theory of alienation, 79 int’l socialism 41 (1998). 122  marx, economic and philosophic manuscripts, supra note 120, at 72-73. 123  id. at 73. “[t]he more values he creates, the more valueless, the more unworthy he becomes; the better formed his product, the more deformed becomes the worker; the more civilized his object, the more barbarous becomes the worker; the mightier labour becomes, the more powerless becomes the worker; the more ingenious labour becomes, the duller becomes the worker and the more he becomes nature’s bondsman.” id. 124  id. 125  id. 126  id. 127  marx, economic and philosophic manuscripts, supra note 120, at 73. 2012 columbia journal of race and law 458 comes from wage worker production, and although he points out that human hands produce alienation,128 workers unfortunately might not immediately understand why they have become more like animals who simply eat, drink, and procreate.129 by becoming more bestial than human, by having external objects exercising power over the worker, and by not having structural or institutional ways to “treat himself as the actual, living species,”130 marx might argue that workers become disheartened by their alienating enslavement to machines. he might argue that workers, once disheartened by other external forces of capitalist production, become aggressive and socio-pathic because they have lost any real connection to their work as a “life-activity, productive life itself.”131 hence without a “species being,” or a way to feed their spiritual life through practices that are in fact “part of human life and human activity,”132 i.e., through meaningful work, workers can become mere brutes, capable of hurting and violating others, including themselves. in this sense, objective, external or structural forces, some of which were racism and white structural oppression, can arguably explain why in precious, mary severely maltreated her daughter. at this juncture, crt’s historicity of racism and marx’s alienation theory conflate. american slavery clearly involved socio-political and economic forces arrayed against africans, all designed to dominate their minds, direct their labor, and control their bodies. like european workers, slaves were denied a right to experience their “species being” through meaningful work.133 hence upon entering the americas and into forced labor, slaves suffered the very 128  loyd d. easton, alienation and history in the early marx, 22 phil. & phenological res. 193, 195 (1961) (adopting g.w.f. hegel’s view of alienation from phenomenology of mind, marx argues that “wealth is ‘the created result of the labor and action of all’ ”). 129  marx, economic and philosophic manuscripts, supra note 120, at 74 (“as a result, therefore, man (the worker) no longer feels himself to be freely active in any but his animal functions—eating, drinking, procreating, or at most in his dwelling and in dressing-up, etc.; and in his human functions he no longer feels himself to be anything but an animal.”). 130  id. at 75. 131  id. 132  id. 133  see, e.g., christine barrow, contesting the rhetoric of ‘black family breakdown’ from barbados, 32 j. comp. fam. stud. 419, 419-20 (2001) (“slave men and women alike were defined and reconstructed as units of labour to fulfill the economic demands of what was perhaps the most dehumanising of capitalist systems ever to have existed.”). 459 “precious” vol. 1:3 alienation about which marx wrote so poignantly.134 but critically important, as in the case of workers, if slavery robbed blacks of their “species being,” not all blacks as a result sexually violated their children. after all, sigmund freud became aware that many of his clients were suffering from neuroses that were caused by sexually abusive parents, perhaps fathers,135 in well-to-do bourgeois families.136 we cannot simply attribute child maltreatment to the stress of economic privation and the mind-numbing experiences of alienation.137 yet, if marx attributed the death of workers’ inner life to economic exploitation and their lost connection to nature, and if alienation affects the possessing classes too, it must follow that structural alienation does not in and of itself contribute to the 134  see generally marx, economic and philosophic manuscripts, supra note 120, at 66-125. 135  miller, banished knowledge, supra note 10, at 55. in a letter to wilhelm fliess, freud wrote: “unfortunately, my own father was one of these perverts and is responsible for the hysteria of my brother (all of whose symptoms are identifications) and those of several younger sisters. the frequency of this circumstance often makes me wonder.” id. miller also wrote: fliess’s son, robert fliess, however, later became a psychiatrist and analyst and published three books containing some very revealing material on sexual abuse by parents of their own children. it took robert fliess many decades to find out that, at the age of two, he had been sexually abused by his father and that this incident coincided with freud’s renunciation of the truth . . . . [robert] was convinced that his father had deterred freud from further developing the trauma theory. that theory would have inevitably caused wilhelm fliess guilt feelings, so his son believes. id. at 55-56. 136  see generally freud, the aetiology of hysteria, supra note 116, at 96111 (peter gay ed., 1989) (brilliantly linking hysteria or trauma with the power of parents to punish and to foist their sexual desires onto children, who were at the same time weak, dependent, and sexually aroused, all of which led to repression, symptoms, symbolisms, and the idealization and life-long bonding of damaged children to exploiting and abusive parents). 137  see, e.g., barrow, supra note 133, at 426-27 (“the peak in 1990/1 in physical abuse and neglect and the high level in the subsequent year are officially attributed to the stresses of economic recession, specifically to the period of stabilisation and structural adjustment in barbados when parents were unable to meet basic needs and responded either by taking out their frustrations on their children or not giving them the necessary care and attention. the increase since 1994, however, is cause for concern though it is not yet clear whether this reflects an upward trend in cases of child abuse.”) (internal citation omitted). 2012 columbia journal of race and law 460 horrific maltreatment experiences of precious and of real-world children. the etiology of precious’ incestuous rape must lie elsewhere. unfortunately, masters rejected their slaves’ humanity by denying them what abram kardiner and lionel ovesey called incomplete “reciprocity of feelings.”138 by so doing, they destroyed any natural human emotional interchange between institutionally powerful whites and weaker blacks. without such an exchange, masters could reduce blacks to things, thus treating them little differently from animals. furthermore, no true emotional exchange could take place between master and slave, for if the slave dared to express his rage, anger, or indignation that affronted the white master’s presumed position of authority, then the master’s resort was actual or symbolic violence, i.e., selling him, whipping him, or killing him.139 moreover, slaves had no respite from their alienated conditions within their family, principally because their marriages and paternity were without legal force on the plantation.140 even when masters interfered with the slave family, or forced a pregnant slave to work, slaves were without any real power to ward off the master or garner special treatment for a slave with child. in short, due to the powerful forces arrayed against them, slaves could not demand that whites treat them as humans who had “species being.” in precious, mary arrayed such power against her daughter. she virtually reduced her daughter to a slave. after attending “each one teach one,” precious became aware of her alienating exploitation. she had been used for beating, cooking, cleaning, and raping; however, neither carl nor mary recognized her inner being.141 her parents never loved her as a child, as a daughter, with her own needs. 138  kardiner & ovesey, supra note 117, at 43. 139  id. (“the rage or protest of the slave could be ignored or treated with violence.”). 140  id. at 44. 141  sapphire, supra note 1, at 64. precious states: i go home. i’m so lonely there. i never notice before. i’m so busy getting beat, cooking, cleaning, pussy and asshole either hurting or popping . . . . i never feel the loneliness. it such a small thing compare to your daddy climb on you, your muver kick you, slave you, feel you up. but now since i been going to school i feel lonely. now since i sit in circle i realize all my life, all my life i been outside of circle. mama give me orders, daddy porno talk me, school never did learn me. 461 “precious” vol. 1:3 precious is an ironic tale of exploitation, alienation, and the black family. in this tale, rather than captains of industry, carl and mary were the exploiters. precious served them with her body as a sexual object, her mind as a devotee of her mother’s needs and wishes, and her labor as a servant who cooked and satisfied her mother’s food needs.142 unlike the usual tale of worker exploitation and alienation, mary symbolized a cruel irony. she owned no capital. she possessed things, but she had become a lumpenproletariat or underclass, a low-life criminal who raped, exploited, and demeaned her daughter, all in the name of greater exploitation with welfare checks.143 mary wanted precious to live in her apartment and told her to lie about where mongo lived, so that mary would have another source of state-based income. through precious, mary controlled what she never possessed in her own life—real power over her labor, things, and life. it’s not so clear that individuals overcome the effects of alienation by dominating others. regardless, marx would argue that mary’s nature was determined within the specific material conditions of the world in which she lived.144 yet, under marx’s alienation theory, society co-created its modern, material conditions through past actions. a future world in which material privations were imposed on the bottom segment of society did not have to exist. rather, “human beings were shaped by the society they lived in, but also . . . they could act to change that society.”145 in short, we, literally all of us, are not only “world determined” but also “world producing.”146 in precious, mary caused her daughter to suffer deep alienation, and in the worst case, she actually intended to break precious so that she would not have any real sense of her inner power. in miller’s work, such power is called authentic self or feelings. regardless, this power would have given precious the id. 142  id. at 22 (her mother was sleep. she’d be back to clean and “fix breakfast for her mother.” and then precious wondered: “why mama never do anything? one time i ax her, when i get up from her knocking me down, she say, that’s what you here for.”). 143  id. at 19. 144  cox, supra note 121, at 2 (“[h]umans [do not] have a fixed nature which exists independent of the society they live in.”). 145  id. at 1. 146  id. 2012 columbia journal of race and law 462 ability to know from the very beginning that her maltreatment experiences were destructive to her well-being and simply wrong. she would have done as some children today have done: call 911 or kill their parents.147 unfortunately, precious didn’t ultimately defend herself. rather, it was ms. rain and ms. weiss who helped precious find a new way to express herself and to acquire functional work skills so that she could survive on her own. however, she never truly gained access to her childhood memories, her history, and thus her empowerment. one example of precious’ lack of inner power is that she still viewed ms. weiss with deep suspicion, not realizing that mary had taught her to view the socialized other—whites—as the enemy. without this sense of inner power, precious did not realize that mary—her mother—was the primarily source of her personal torment. c. alice miller: racism, childhood history, and poisonous pedagogy “from the very beginning i was physically, psychically, and sexually abused . . . . our parents claims to have learned cruelty from the whites and deny their own parents’ contribution.”148 before and since slavery, children have been the objects of cruelty, humiliation, and violence.149 as such, childhood 147  see generally p. solomon banda, colo. boy remains in custody in killing of parents, associated press, mar. 4, 2011, http://news.yahoo.com/s/ ap/20110304/ap_on_re_us/us_colorado_family_shot (describing story of twelve-year-old boy who shot and killed his parents, charles and mary long, both of whom were active in the local evangelical free church, and two young siblings); anastasia toufexis, hannah bloch & jeanne mcdowell, when kids kill abusive parents, time, nov. 23, 1992, available at http://www.time. com/time/magazine/article/0,9171,977079,00.html (town folks collected signatures in a petition for “billie joe powell, a 16-year-old girl charged with fatally shooting her father, who had allegedly abused her. . . . charles patrick ewing [psychologist and attorney] of the state university of new york at buffalo [who explained the unusual sympathy the town had for billie joe said]: ‘we take the commandment to ‘honor thy father and thy mother’ very seriously. the implication is that you’re supposed to honor your parents even if they abuse you.’ ”). 148  miller, banished knowledge, supra note 10, at 33. 149  see, e.g., mason p. thomas, jr., child abuse and neglect part i: historical overview, legal matrix, and social perspectives, 50 n.c. l. rev. 293, 293 (1972) (“the phenomenon of child abuse and maltreatment is deeply rooted in our cultural and religious history. it is as old as civilization itself.”). http://www.time.com/time/magazine/article/0,9171,977079,00.html http://www.time.com/time/magazine/article/0,9171,977079,00.html 463 “precious” vol. 1:3 maltreatment predates american negro slavery and karl marx, which cannot be explained simply by race-consciousness oppression or by capitalism’s alienation. without overly discounting structural forces, miller’s framework actually explores what crt and marx’s alienation theory appear to ignore. indeed, racism’s historicity matters, and the collective history of worker exploitation cannot be overlooked. yet, precious’ childhood history, which would shape her life perhaps forever, was forged in the fire of carl and mary’s dark repression. in explaining what happened to precious, this essay relies on miller’s psycho-existential framework.150 in the body never lies, miller argues that pedagogical parenting, or moral training, destroys a child’s vitality, spontaneity, and true feelings.151 if caregivers use violence, humiliation, and manipulation during infancy, children will repress memories of such pain and cruelty, leading to self-deception. they will identify with traumatizing parents, leading to emotional blindness. because their bodies never forget, self-deception can lead to numbness, illness, depression, type ii diabetes, hypertension, violence, crime, jail, broke families, cancer, bad grades, and obesity.152 thus, by holding structural forces in abeyance, precious tells the story of how the victim became a destroyer.153 carl and mary carried out against their daughter what they had more than likely suffered as an innocent, impotent children. by innocent, miller means that the child “is defenseless and as yet bears no responsibility for others.”154 by impotent, she means that a child, perhaps an infant, is literally at the mercy of her caregivers for love, nurturance, and shelter. at the outset, neither carl nor mary 150  cf. reginald leamon robinson, trauma, creativity, and unconscious confessions: the lost childhood history behind l. frank baum’s the wonderful wizard of oz, 20 s. cal. interdis. l.j. 145 (2010) (relying on alice miller’s psycho-existential framework to reveal what may have motivated baum to write the first oz installment). 151  see generally alice miller, the body never lies: the lingering effects of hurtful parenting (andrew jenkins trans., 2005) (2004) (analyzing how repressed emotional responses to early humiliations and unfulfilled needs are transmitted to the body and can produce long-term illness). 152  see generally id. 153  see generally miller, free from lies, supra note 37, at 45-89 (arguing that destructive actions against children are the vehicles through which evil enters our world because those abused children can grow up to repeat their trauma on other human beings). 154  miller, banished knowledge, supra note 10, at 46. 2012 columbia journal of race and law 464 consciously wished to hurt or harm precious. in talking to ms. weiss, mary told her now she cared for precious, taking out in even in cold weather for fresh air, dressing her in pink, and taking care to dress her in “little pink bootie socks.”155 unfortunately, mary repressed much of her early pain, lest it would have more than likely killed her. accordingly, miller states: “what can a child do when she is left so utterly alone with her panic, her impotent fury, her despair and anguish? the child must not even cry, much less scream, if she doesn’t want to be killed. the only way she can get rid of these emotions is to repress them.”156 miller’s view on repression applies during slavery, which was observed by laura towne. she described black children who were required to love and obey their parents, even though they were humiliated, silenced, and beaten harshly and regularly.157 they too were innocent and impotent. they had no voice; at least none that mattered. complaining subjected them to stinging humiliation. how could they love?158 how would they care 155  sapphire, supra note 1, at 134. 156  miller, banished knowledge, supra note 10, at 40. 157  see gutman, supra note 96, at 219-20. 158  see, e.g., reva b. siegel, “the rule of love”: wife beating as prerogative and privacy, 105 yale l.j. 2117, 2134-41 (1996) (illustrating that after slavery, black men were perhaps generally beating their black female wives, but also suggesting that prosecutors were motivated to convict them due to racist concerns that blacks not enjoy the privileges that were normally enjoyed by white masters); id. at 2139 n.85 (“between 1889 and 1894, fifty-eight out of sixty men arrested for wifebeating in charleston, south carolina were black.”) (citing elizabeth pleck, wife beating in nineteenth-century america, 4 victimology 60, 65 (1979)); id. at 2139-40 n.85 (“debating bill to punish wife beaters in district of columbia by flogging at whipping post and discussing committee report in support of bill that indicated that ‘in the fourth precinct there were 14 white and 72 colored out of a total of 86 arrests for wife beating, and in the sixth precinct there were 23 white and 73 colored out of a total of 96 arrests for this offense’ ”), citing 40 cong. rec. 2444, 2449 (1906) (remarks of rep. sims); litwack, supra note 97, at 349 (recalling her experiences shortly after emancipation, she stated: “dat was the meanest niggah dat ever lived. he would slip up behin’ me when i was wukin’ in the fiel’ an beat me.”); id. at 350 (“if i had a twenty-dollar bill this mornin for every time i seed my daddy beat up my mother and beat up my stepmother i wouldn’t be settin here this morning because i’d have up in the hundreds of dollars.”); fulgham v. state, 46 ala. 143 (1871) (upholding the assault and battery conviction of an emancipated slave for beating his emancipated wife after she interrupted him for what she thought was excessive corporal punishment on their child); harris v. state, 14 so. 266 (miss. 1894) (reversing and remanding conviction for assault with intent to kill of a black based on insufficient evidence). 465 “precious” vol. 1:3 for their children, especially given the lack of love they experienced.159 unfortunately what laura towne observed during slavery was practiced during jim crow. in genovese’s roll, jordan, roll, ralph ellison observed that to protect black children during jim crow, the southern negro family’s methods . . . is the severe beating—a homeopathic dose of the violence generated by black and white relationships . . . . [h]ere the severe beating is administered by the mother, leaving the child no parental sanctuary. he must ever embrace violence along with maternal tenderness, or else reject, in his helpless way, the mother. . . .160 to this extent, it would appear that repression and humiliation work indispensably with obedience training. black parents then are literally requiring their children to swallow very powerful emotions, especially those that might suggest sassing or disrespect. yet, repression numbs children, creating in the adult child potentially lethal personal and social consequences. on this point, miller writes: but repression is a perfidious fairy who will supply help at the moment but will eventually exact a price for this help. the impotent fury comes to life against when the girl’s own child is born, and at last the anger can be discharged—once again at the expense of a defenseless creature.161 and so out of the maelstrom of abuse, assaults, and repression, susan killed her infant daughter. carl and mary cocreated a relationship, undergirded by hurt, pain, anger, and impotence that must have surrounded their sexual abuse as children. given that mary declared that she was a good mother, she, like carl, must have deeply repressed their sexual abuse, which directly impacted precious’ life. likewise, given her word to ms. weiss, 159  see miller, banished knowledge, supra note 10, at 40 (“when such a child must consume all her capability and energy for the required labor of repression; when, in addition, she has never known what it is to be loved and protected by someone, this child will eventually also be incapable of protecting herself and organizing her life in a meaningful and productive manner.”). 160  eugene d. genovese, roll, jordan, roll: the world the slaves made 510 (1974). 161  miller, banished knowledge, supra note 10, at 40. 2012 columbia journal of race and law 466 mary subscribed unconsciously to cruelty as love. together, they gave birth not to precious but to an object onto which they could vent their impotent fury and discharge their anger. as they had been when they were children, precious was impotent, innocent, and defenseless. except at carl and mary’s brutal hands, precious at no time knew of slavery, exploitation, humiliation, spiritually withering experiences, humiliation and disrespect. in this way, precious differed only slightly from the black children who laura towne and ralph ellison described. in short, not slavery by white masters and overseers or alienating exploitation by an assembly line, but by black parents’ unconscious need for obedient, near sycophant-like children can best explain why carl and mary brutally maltreated and sexually exploited precious. iii. conclusion hence, miller’s psycho-existentialism critiques the poisonous pedagogy, and through it, miler would argue that carl and mary more than likely were both brutally exploited, including via sexual abuse. they assumed that they could best get love not through consent but through power. thus, they could exploit an innocent, impotent child, and it was precisely these qualities that made precious so sexually “gratifying.” in so doing, mary and carl literally and symbolically recreated a living hell for precious, thus arguably revealing the withering childhood through which they both suffered. accordingly, we cannot ignore that race consciousness and capitalist exploitation do not figure persuasively and predominantly into precious’ tragic biography. however, long before precious knew of racism and worker exploitation, she learned that the world was cruel, brutal, violating, manipulative, arbitrary, and oppressive. unfortunately, she did not learn these things from whites or greedy wall street financiers. precious garnered these lessons from her parents, on whom she needed to rely for love and nurturance. yet, along the way, precious needed to construct a socialized other, viz., “crackers,” so that she could repress who actually hurt, beat, raped, and hated her. it is clear that precious loved and hated mary. she will point to how she was treated. she will recall that at “each one teach one,” she learned to appreciate that only at home was she invisible. unfortunately, her idea of visibility, acknowledgement, and appreciation was associated with 467 “precious” vol. 1:3 white, skinny girls. her mother and father never saw that she should be treated like the precious white girl she had internalized. in the end, precious almost requires us, the reader, to hope for precious that which she simply cannot have unless she can fault not whites and racism but carl and mary for her brutal maltreatment. gilmore eic edit 2013 columbia journal of race and law 1 chances are: lessons from the 1962 united states civil rights commission housing discrimination hearings in washington d.c. for the current foreclosure crisis brian gilmore* by examining a prior government hearing that investigated instances and patterns of housing discrimination in the u.s., a more accurate picture of the damage created by government policies that supported housing discrimination, racial segregation, and economic inequality can be presented. this article focuses specifically upon the 1962 housing discrimination hearings convened in washington d.c. by the united states civil rights commission. the hearings focused upon housing discrimination and patterns of racial segregation in the washington d.c. metropolitan region produced as a direct result of government policies pursued and endorsed for over thirty years by the federal housing administration (fha). in addition, this article will not only expose the ineffectiveness of the 1962 hearings in addressing these very important socio-economic issues but also identify current racial discrimination and economic equality at the center of today’s damaging housing crisis. in sum, this article argues for addressing past, present, and future racial discrimination patterns in housing with a much more aggressive and honest approach to a problem rooted in economic inequality and ineffective government policy. even in the age of resistance to governmental solutions to economic inequality, the need for just such an approach is justified in this instance. i. introduction……………………………………………………………. 2 ii. the united states civil rights act of 1957…………………... 3 a. a civil rights law, at last…………………………………………… 3 b. the commission………………………………………………………. 4 iii. the april 1962 hearings on housing in washington, d.c. 5 a. the commission pursues its mission……………………………….. 5 b. a discriminatory environment………………………………………. 6 c. the government and the banks……………………………………… 10 iv. what do the hearings mean?......................................................... 13 a. wealth accumulation………………………………………………….. 15 2 chances are vol. 3:1   b. the swelling “racial” chasm in the 21st century…………………… 16 v. lessons of the 1962 hearings and the foreclosure crisis of 2007……………………………………………………………….. 16 a. the american racial dynamic……………………………………..... 16 b. government inaction and delay: the 1962 hearings……………….. 20 vi. conclusions and recommendations…………………………. 21 i. introduction on september 9, 1957, republican president dwight d. eisenhower signed the civil rights act of 1957 into law.1 it was the first civil rights law passed in the united states since 1875.2 the period from 1875 to 1957 was an era of stagnant racial progress in the united states. laws legalizing discrimination and racial segregation were prevalent throughout the country and the federal government did little to address the problem. discrimination and racial segregation were also a frequent occurrence in states without overt laws legalizing these practices.3 further, custom and outright mob violence perpetuated america’s racial caste system. for these reasons, the passage of a civil rights law in 1957 was quite an achievement. while the law was an historic accomplishment, it was also a compromised piece of legislation that reflected the nation’s inability to get beyond the issue of race in the twentieth century. president eisenhower was among those disappointed by the new law when he signed the bill. in issuing no comment on the new civil rights law, he demonstrated his disdain for its limitations.4 however, the law authorized the creation of the united states civil rights commission, the first government entity devoted to the issue of civil rights in the history of the nation.5 the significance of the period between civil rights laws enacted during reconstruction6 and the civil rights act of 1957 is noteworthy. it was during this period that most of the nation’s african american population became second-class citizens who were forced to exist under “jim crow” conditions, whereby civic barriers were enforced legally, institutionally, and by custom.7 african americans were segregated from the rest of the population in every facet of daily life in the united states, including public education, housing, employment, and socialization. and the perpetuation of a dual system of housing (home ownership and home location) during an important segment of the jim crow period left an indelible imprint on the structure of racial and economic equality in the united states, now and for the future.                                                                                                                 * the author currently teaches at the michigan state university college of law. he is both director of the housing law clinic and clinical associate professor. he wishes to thank the following individuals for their assistance and support in completing this article: dean joan howarth; professor michelle halloran, director of clinical programs, michigan state university college of law; and the entire staff of the michigan state university school of law library. 1 foster rhea dulles, the civil rights commission, 1957–1965, at 1(1968). 2 id. 3 martin luther king, jr., why we can’t wait (penguin books 2000) (1963). 4 w.h. lawrence, president backs u.s. court order, n.y. times, sept. 10, 1957, http://query.nytimes.com/mem/archive/pdf?res=f70d13f7385a177b93c2a81782d85f438585f9. 5 dulles, supra note 1, at 3. 6 “reconstruction” is generally considered the historical period immediately following the civil war of 1861– 1865 and the end of chattel slavery in 1865. the period lasted from approximately 1865–1877. 7 the richard wright encyclopedia 342 (jerry washington ward & robert butler eds., 2008). 2013 columbia journal of race and law 3 the federal government’s intentional policy decisions promoted racial segregation and economic inequality in the housing market from 1934 to 1968.8 during this period, the federal housing administration (fha) adopted and promoted discriminatory housing policies in the united states.9 these policies led to segregated housing patterns and created segregated cities and neighborhoods. housing policies have therefore contributed to an enduring economic inequality where whites have accumulated far more wealth than minorities, particularly african americans.10 thus, the civil rights act of 1957 and the creation of the u.s. civil rights commission could have been a moment of serious social and political progress. instead, the law reaffirmed and reinforced lawmakers’ attitudes of racial inequality towards african americans, just as president eisenhower’s disappointment had foreshadowed. the activities of the u.s. civil rights commission were impressive but were conducted with limitations and purpose.11 one significant example is the april 1962 hearings of the commission convened in washington, d.c. to examine housing discrimination in the metropolitan washington, d.c. area.12 an analysis of the april 1962 hearings on housing discrimination in washington, d.c. and the surrounding region reveals the weaknesses of the civil rights act of 1957 that eisenhower had suspected, as well as an overall flawed approach to solving the problem. today, with a devastating housing crisis still dominating the nation’s economic affairs, lessons for the future can be learned by examining the april 1962 hearings and exploring the mistakes made by the government in the following years. specifically, a re-examination of the april 1962 hearings is an opportunity to consider a new approach to addressing economic equality along racial lines and to consider new approaches to current problems in the housing market. part ii of this article will focus upon the creation of the u.s. civil rights commission in 1962. part iii will summarize and report on the commission’s april 1962 hearings regarding housing discrimination in the washington, d.c. metropolitan area. part iv will evaluate the 1962 hearings and consider the economic impact of government policies in the housing market that have disproportionately impacted the lives of african americans in accumulating wealth over the years. part v will consider the lessons learned 1962 hearings and the 2007 housing foreclosure crisis to examine what can be done to change systemic, entrenched housing discrimination against and economic inequality amongst some african americans. finally, part vi will consider recommendations to remedy economic inequality and housing discrimination, emphasizing the need to address the problems created by past government policy as well as new issues created by the government’s subsequent attempts to increase the rate of homeownership in the african american community. ii. the united states civil rights act of 1957 a. a civil rights law, at last the civil rights act of 1957 addressed several areas of civil rights in a fairly conservative manner. most notably, the act authorized the creation of the united states commission on civil rights.13 the commission was created as an “independent, bipartisan fact finding agency established by                                                                                                                 8 david m.p. freund, colored property: state policy and white racial politics in suburban america 155 (2007). 9 id. 10 melvin l. oliver & thomas m. shapiro, black wealth/white wealth: a new perspective on racial inequality 18–19 (10th ed. 2006). 11 dulles supra note 1, at 2–3. 12 united states civil rights commission, housing in washington: hearings before the united states commission on civil rights 3 (1962) [hereinafter housing in washington]. 13 dulles, supra note 1, at 2. 4 chances are vol. 3:1   the congress,”14 with the following duties: “to investigate complaints regarding deprivation of the right to vote; to study legal developments constituting a denial of equal protection of the laws under the constitution; and; to appraise the federal laws and policies with respect to equal protection.”15 while the commission’s duties were devoted to the issue of civil rights, the commission had no authority to enforce laws relating to equal protection or to punish any individual or entity for racially racial discriminatory conduct.16 even if the commission identified a violation of federal law proven by actual testimonial evidence, the commission could do nothing address the problem.17 even with these limitations, the commission held significant potential: [e]mpowered to assemble authentic and documented information, to be incorporated in the public record, this new federal agency would be able to build up to an unassailable factual record of the status of civil rights throughout the country. from this base it could then point the way towards more effective policies, on the part of both the executive and congress . . . .18 the commission was formed during a period when civil rights and relations were particularly volatile in the united states. in 1954, the supreme court rendered its most famous decision affecting race relations in the united states: brown v. board of education.19 brown effectively declared “jim crow” laws in the united states illegal and unconstitutional and ushered in an era of desegregation and integration that is still evolving today.20 in december 1955, rosa parks’ legendary act of civil disobedience while on a montgomery, alabama, transit bus inspired the modern civil rights movement.21 numerous other individual and collective efforts to oppose the nation’s racial caste system soon followed.22 by 1957, the entire “jim crow” system had come under increased scrutiny in the face of fierce resistance of change. it was in this context that the commission was created. further integration, and acts of civil disobedience, ensued. in 1957, nine african american students challenged the “separate but equal” public school system when they integrated central high school in little rock, arkansas.23 by 1960, in greensboro, north carolina, college students began “sit in” campaigns at lunch counters to dramatize racial segregation.24 in 1961, the integration of interstate bus transportation would be commenced through the well-known “freedom riders” campaign.25 with so much change occurring in the united states, the inception of a commission devoted to studying civil rights was both appropriate and necessary. b. the commission                                                                                                                 14 housing in washington, supra note 12, at 3. 15 id. 16 dulles, supra note 1, at 2–3. 17 id. 18 id. 19 brown v. bd. of educ. of topeka, 347 u.s. 483 (1954). 20 waldo e. martin, jr., brown v. board of education: a brief history with documents 1 (1998). 21 ruth ashby, rosa parks: freedom rider 56 (2008). 22 id. at 63–75. 23 brian gilmore, the courage of the little rock none, south bend trib., aug. 24, 2007, http://articles.southbendtribune.com/2007-08-24/news/26789243_1_black-students-diversity-in-public-educationpublic-schools. 24 brian gilmore, sit-ins changed society, pittsburgh trib., feb. 7, 2010, http://triblive.com/x/pittsburghtrib/opinion/columnists/guests/s_665891.html. 25 raymond arsenault, freedom riders: 1961 and the struggle for racial justice 3 (2006). 2013 columbia journal of race and law 5 notwithstanding the limitations on its authority to enforce civil rights, the initial commission was very impressive. it was comprised of john hannah, president of michigan state university; robert g. storey, dean of southern methodist university law school; john s. battle, a former governor of virginia; father theodore m. hesburgh, president of notre dame; j. ernest wilkins, an assistant secretary of labor; and doyle e. carleton, a former governor of florida.26 the initial commission had no female members and only one african american member, j. ernest wilkins.27 unfortunately, wilkins resigned due to illness shortly after his appointment to the commission. he was replaced by another african american, george m. johnson, the former dean of the howard university school of law from 1946 to 1958.28 president hannah was chairman of the commission and storey was vice chairman.29 hannah is worthy of closer examination because of his unlikely rise as a leader in the area of civil rights.30 hannah had no prior background experience in civil rights issues or government policy. yet in his 1966 article, civil rights and the public universities, hannah wrote intelligently on the topic, referring to the issue of civil rights as a “problem” that did not exist “exclusively in the south,” but in the “east and the north and the west as well.”31 the commission’s influence on hannah’s views on civil rights was evident in this article: the negro is forever marked by the color of his skin as one apart. he cannot lose himself in the homogeneity in which the rest of us take refuge, and he suffers under a dreadful handicap as a consequence. the task of education is to persuade his white brothers and sisters that color makes no difference. only a beginning has been made in the long, hard fight against race prejudice, but doors of opportunity, so long closed arbitrarily to the negro, are slowly opening in the professions and the higher vocations.32 father theodore hesburgh, another initial commission appointee, described the commission as “a kind of national conscience in the matter of civil rights.”33 commissioners faced physical threats in the early years, and they were “publicly harassed in the media and politics for most of the commission’s history.” 34 despite these challenges, the commission survived; it “became known for its integrity and its hallmark independence from political authority by doing its work without fear.”35 iii. the april 1962 hearings on housing in washington, d.c. a. the commission pursues its mission on april 12–13, 1962 in washington, d.c., the commission held hearings on the state of the city’s housing.36 while many of the commission’s original members remained, there were several notable.37 president john f. kennedy appointed new members to the commission in 1961, including                                                                                                                 26 dulles supra note 1, at 18. 27 id. 28 id. at 19. 29 id. 30 id. 31 john a. hannah, civil rights and the public universities, 37 j. higher educ. 61, 67 (1966) (“finally, we must acknowledge that the real problems of civil rights are not to be found exclusively in the south. they exist in the east and the north and the west as well.”). 32 id. at 65. 33 mary frances berry, and justice for all: the united states civil rights commission and the continuing struggle for freedom in america 4 (2009). 34 id. 35 id. 36 housing in washington, supra note 12, at 3. 37 id. 6 chances are vol. 3:1   spottswood robinson, dean of the howard university school of law. his appointment is particularly noteworthy because of his civil rights background.38 an accomplished litigator in the civil rights field, robinson had close associations with the howard university school of law and the national association for the advancement of colored people (naacp) legal defense fund.39 he was also a member of the brown v. board of education legal team, which included charles hamilton houston, thurgood marshall, and julian dugas, among others.40 the district of columbia hearing was not the first convened by the commission. the commission had previously held hearings in los angeles, atlanta, chicago, detroit, and new orleans. these hearings explored several civil rights issues in addition to housing, such as voting, public education, public accommodations, and the administration of justice.41 at the outset of the hearings, chairman hannah noted that these previous hearings by the commission strongly suggested that housing was an area that warranted more attention by the commission: our studies have revealed that one of the most crucial civil rights problems is housing. housing is the one commodity in the american market that is not freely available on equal terms [to] everyone who can afford to pay. throughout the country large groups of american citizens, mainly american negroes, but other groups as well, are denied an equal opportunity to choose where they will live. much of the housing market is closed to them for reasons unrelated to their personal worth or ability to pay, and in the restricted market that is open to them, negroes generally pay more for equivalent housing than do the favored majority.42 the commission convened the district of columbia hearings because, as chairman hannah noted, washington is “the window of america” and “the entire nation” would be judged by the commission’s actions there.43 the commission also sought to examine the housing problem in the washington metropolitan area.44 b. a discriminatory environment the numerous witnesses that testified at the hearing established that african americans experienced denial of access to equal housing 45 and racial discrimination related to home ownership46 in the washington metropolitan area. the discussion below provides a summary of just some of the testimony presented at the hearing. the first to testify was walter n. tobriner, president of the district of columbia board of commissioners. mr. tobriner confirmed that washington and the metropolitan region were segregated:                                                                                                                 38 dulles, supra note 1, at 100. 39 spottswood robinson iii was born in richmond, va. he graduated from the howard university school of law in 1939 and eventually served as head of the naacp legal defense fund’s virginia office. it was there that he filed one of the school desegregation cases that would eventually result in the brown v. board of education decision of 1954 outlawing segregation in the united states. robinson was a well-known successful civil rights lawyer in segregated virginia over the years. he also served as dean of the howard university school of law and was the first african american appointed to the united states district court for the district of columbia and the united states court of appeals for the d.c. circuit. robinson, u.s. appeals judge, dies in virginia at 82, jet magazine, nov. 2, 1998, at 57. 40 spottswood william robinson iii, brown @ 50: fulfilling the promise, http://www.brownat50.org/brownbios/biojudgespottswoodrobinson.html (last visited dec. 4, 2012). 41 housing in washington, supra note 12, at 4. 42 id. 43 id. at 4–5. 44 id. 45 id. evidence of discrimination in the housing market is presented throughout the hearings. 46 see housing in washington, supra note 12. 2013 columbia journal of race and law 7 eighty percent of the region’s african americans were residing in the district of columbia.47 while mr. tobriner also testified that african americans found washington, d.c. to be a city where there was “hope for equal opportunity,” tobriner acknowledged that equal opportunity had not been achieved.48 tobriner spoke little about how the city’s housing market contributed to the segregation but did allude to various programs being implemented to provide additional low-income housing opportunities.49 sociologists george and eunice grier presented data on segregation in the region and noted that the african american population had been increasing in the district of columbia but “declining” in the “suburbs” since 1920.50 of particular note was the testimony of george grier, in which he explained that washington, d.c. has had a significant african american population for decades.51 some african americans families had lived in washington, d.c. for five or six generations. however, the african americans in washington, d.c. were not becoming dispersed in the area, according to mr. grier; rather, they were becoming more concentrated in specific areas of the metropolitan region.52 furthermore, african americans were at an “economic disadvantage” in attaining home ownership although they earned incomes “above the national average for non-whites,” and as a result, could afford to purchase homes in almost exclusively white areas of the city.53 these areas, glover park and woodley road, however, remained exclusively white even though african americans could afford to reside there.54 segregation in the face of african americans’ moderate income is a key fact in understanding the overall issue of segregation and discrimination in the area.55 robert weaver, administrator for the housing and home finance agency also acknowledged the presence of displacement and racial concentration, and advocated opening “suburban areas . . . to all elements of the population.”56 until that occurred, he urged, the washington, d.c. region would “continue to suffer from too great concentrations of ethnic groups in too small a sector of the total metropolitan area.”57 sterling tucker, executive director of the washington urban league,58 also testified at the hearing.59 tucker testified that housing discrimination in the metropolitan region is part of an “economic monster.”60 tucker offered recommendations to the commission based on its own 1961 housing report.61 the recommendations stressed the need to address neighborhood segregation patterns, development as it affects african american neighborhoods, housing discrimination, and relocation issues that arise when african americans are displaced.62 tucker testified that segregation patterns in the                                                                                                                 47 id. at 8. 48 id. 49 id. 50 id. at 15. 51 housing in washington, supra note 12, at 18. 52 id. 53 id. at 19. 54 id. 55 id. 56 housing in washington, supra note 12, at 35. 57 id. at 35. 58 the greater washington urban league was founded in 1938 and is one of more than 100 affiliates of the national urban league. a major civil rights and social services organization, the league has been dealing effectively with a wide range of social and economic problems for seventy-one years. see history, greater washington urban league, http://www.gwul.org/about/history (last visited nov. 16, 2012). 59 housing in washington, supra note 12, at 40. 60 id. 61 id. at 40. 62 id. at 41. 8 chances are vol. 3:1   suburbs were “firmly entrenched” and that it was “virtually impossible for a non-white family— regardless of means . . . to secure modern suburban housing.”63 tucker, like many other witnesses, testified on the high concentration of african americans in the city, as opposed to the suburbs.64 he additionally testified that thirty-six percent of the african americans in the city owned their homes while only twenty-eight percent of whites in the city owned their homes.65 while this could be viewed in a positive manner, tucker noted that this only speaks to the industrious nature of the african american experience; the fact that they are forced to reside in the city is a tragic hidden reality behind the statistic.66 tucker’s points, and the pronouncements of many others, are historically consistent in washington, d.c. as well as most major american cities in the twentieth century.67 large numbers of african americans migrated to large cities across the country and eventually discovered that they were soon segregated in these cities and urban communities.68 in these large metropolitan areas, the reasons for segregation were almost always tied to the effect of racial attitudes and policies on housing, as suggested by tucker’s testimony.69 testimony in the commission’s washington, d.c. hearing also supported a wider analysis of how housing discrimination in the united states and segregation was achieved. the testimony of mrs. adolph williams, president of the montgomery county branch of the naacp, is one of the best examples of this official and unofficial policy.70 mrs. williams described for the commission her own experience in seeking to purchase a house in the suburbs. mrs. williams testified that she and her husband, a dentist, sought to purchase a home in the city of norbeck, located in montgomery county, maryland, where “negroes” were already residing.71 mrs. williams identified a house in a newspaper and spoke with a real estate agent over the telephone. the agent had already identified mrs. williams’ husband as a “negro.” on this basis, the agent immediately raised the price of the house by $1,000 stating that the newspaper price had been a mistake.72 later, mrs. williams inquired regarding another house in montgomery county. that agent pushed to meet with mrs. williams before she could see the house but mrs. williams insisted on meeting the agent at the house.73 the description of the meeting at the house is as follows: i got to the house a little ahead of the agent, and i went in, and when the owner introduced me, he seemed very surprised to see me, and when the owner introduced us, he said, ‘you can look around, if you want to,’ and he excused himself from the living room and went into the kitchen, and he asked the owner whether or not he thought i was a negro, and she gave him some ambiguous answer. he made no attempt to try to sell me the home or interest me in the house. i asked him the price of the home. he was not sure, but he gave me a price which was a thousand dollars higher than the asking price. when i asked him when the house would be available for occupancy, he didn’t                                                                                                                 63 id. 64 housing in washington, supra note 12, at 42. 65 id. at 42. 66 id. 67 john f. mcdonald, urban america: growth, crisis, and rebirth 108–11 (2007). 68 id. 69 charles t. clotfelter, after brown: the rise and retreat of school desegregation 80 (2006). 70 housing in washington, supra note 12, at 99. 71 id. at 100. 72 id. 73 id. 2013 columbia journal of race and law 9 know. he had absolutely no information about the house he was showing to me. after i looked through the house, i told him i would like to buy it and i wanted to sign a contract that day. he said i could not sign the contract . . . .74 additionally, mrs. williams testified that she continued to pursue the purchase of the house despite further resistance from the real estate company.75 there were not only additional stall tactics, but the president of the company also expressly advised mrs. williams that if he sold her the house, “he would be ruined.”76 the family also had trouble securing financing for their home purchase. people who found out that the williams were moving into the home—including members of the loan company’s board of directors—pressured the loan company and attempted to prevent it from extending a mortgage loan to the family.77 it was not until mrs. williams told the loan company that the u.s. justice department was interested in her experience purchasing a home in the suburban area that the sale of the house was completed. the family finally moved into the house on june 15, 1961.78 on july 3, 1961, a hangman’s noose was placed on the windshield of mrs. williams’ car followed by the burning of a cross on her porch on july 4, 1961.79 the williams family also received a bomb threat shortly after moving into their new house.80 mrs. williams’ testimony is just one example of the environment in washington, d.c. at the time of the hearings. others who testified provided additional details regarding the hostile actions of various individual actors in the washington housing market as well as the racial attitudes of the time that contributed to the rampant racial discrimination in the region. marion johnson, vice president of the alexandria, virginia, council on human relations, provided testimony relating to alexandria, virginia, a city just outside the district of columbia.81 according to vice president johnson, african americans faced serious obstacles to obtaining housing in the city of alexandria from a variety of directions. “decent, sanitary housing on any level” was unavailable to african americans as a result of the actions of “financial institutions, private builders, and other segments of the homebuilding industry” in working to prevent african americans from obtaining such housing.82 in addition, according to vice president johnson, the alexandria city government also worked to ensure that african americans could not purchase housing in alexandria.83 reverend charles n. mason jr., past chairman of the social action committee of the silver spring, maryland ministerial association, testified to similar conditions in montgomery county, maryland, a suburban area just outside of washington.84 reverend mason testified that “exclusive minded” property owners, real estate developers, and lenders, who worked together to prevent african american families from gaining entrance into suburban communities, were the reason africanamericans had difficulties in locating and purchasing suburban housing.85 arguably, as opposed to oral testimony, the most striking evidence presented during the hearings was a racial map testimonial of washington, d.c. the map revealed that in the washington                                                                                                                 74 id. 75 housing in washington, supra note 12, at 101. 76 id. at 101. 77 id. at 101–02.   78 id. at 102. 79 id. 80 housing in washington, supra note 12, at 102. 81 id. at 105. 82 id. at 106. 83 id. 84 id. at 94. 85 housing in washington, supra note 12, at 95. 10 chances are vol. 3:1   metropolitan area, african americans were largely segregated into a small portion of the region.86 whites, on the other hand, resided mostly outside the city in montgomery county, or in particular neighborhoods within the city.87 the population percentages were nearly identical.88 in the inner city, african americans comprised approximately seventy-five to one hundred percent of the population in several neighborhoods.89 in outer city neighborhoods and in suburban areas, whites comprised over ninety percent of the population.90 in other words, the region in 1962 was segregated by race, in housing and in neighborhoods.91 c. the government and the banks financial institutions and representatives from the federal housing administration (fha) also provided testimony at the hearing. this segment of the hearing provides information relating to the historical role the federal government played in perpetuating racial discrimination, segregation, and economic inequality in the washington metropolitan area through its lending policy. the fha was created in 1934 amidst the economic catastrophe known as “the great depression.”92 the purpose of the agency, like that of other agencies that preceded it, was to stimulate the private housing market during a difficult economic time in the country.93 the agency, from the very beginning, never built any homes or made any loans to any consumers.94 the main function of the agency is to provide insurance against loss on housing loans made by private lending institutions.95 this is a critical function of the housing market because it encourages lending. financial institutions are more likely to extend loans if they possess some protection against potential losses.96 the creation of the fha was a continuation of efforts commenced by the federal government when it created the home owners loan corporation (holc).97 the holc was created to stimulate                                                                                                                 86 id. at 29–30. 87 id. 88 id. 89 id. at 30. 90 housing in washington, supra note 12, at 30. 91 id. at 30. 92 the great depression occurred between 1929 and 1939 in the united states. it is agreed it is the worst economic period in the history of the nation. according to john kenneth galbraith, the great depression can be described as follows: after the great crash came the great depression which lasted, with varying severity, for ten years. in 1933, gross national product (total production of the economy) was nearly a third less than in 1929. not until 1937 did the physical volume of production recover to the levels of 1929, and then it promptly slipped back again. until 1941, the dollar value of production remained below 1929. between 1930 and 1940 only once, in 1937, did the average number unemployed during the year drop below eight million. in 1933, nearly thirteen million were out of work, or about one in every four in the labor force. in 1938 on person in five was still out of work. john kenneth galbraith, the great crash 168 (1955). 93 christopher bonastia, knocking on the door: the federal government’s attempt to desegregate the suburbs 62 (2008). 94 clarence vose, caucasians only: the supreme court, the naacp, and the restrictive covenant cases 225 (1992). 95 id. 96 the government accounting office (gao) reported in 1997 regarding the relationship between the number of loans sold and approved and fha insurance. see united states government accounting office, homeownership: potential effects of reducing fha’s insurance coverage for home mortgages, report to the chairman, subcommittee on housing and community opportunity, committee on banking and financial services, house of representatives (may 1997), available at http://www.gao.gov/assets/160/155917.pdf. 97 kevin fox gotham, race, real estate, and uneven development: the kansas city experience, 1900–2000, at 53 (2002). 2013 columbia journal of race and law 11 the housing market by removing poor performing mortgages from the u.s. housing market.98 consumers with mortgages in danger of default or foreclosure were provided with refinancing options in order to remove these mortgages from the housing market.99 the program was highly successful in that it changed the nation’s antiquated mortgage system where the mortgages on houses were not fully amortized to a system where the loan was fully amortized for a longer period of time. this enabled the consumer to actually repay the loan.100 but the new mortgage system instituted through the creation of holc also created an appraisal system with inherent and deliberate racial discrimination as a key part of its operations.101 the system created a code system for neighborhoods where the holc would or would not extend refinancing opportunities.102 considering that black neighborhoods were “deemed undesirable” and placed in the lowest appraisal category by the holc, the system essentially removed access to the suburban mortgage market in the u.s. from african americans as far back as the 1930’s.103 the fha would eventually adopt the system adopted by the holc when it began operating in 1934.104 while the practical reason the holc adopted a system of valuation for properties was to determine the “productive life of housing,” the racism underlying the policy decision by the government created agency had a profound impact upon racial equality into the future.105 in 1934, when the fha was created and began its operations, the agency was using the holc appraisal system to determine mortgage insurance protection for consumers.106 under the holc system, african american neighborhoods and mixed neighborhoods both had little chance to obtain government support for the purchase of a home.107 the racially discriminatory policy was “[b]uilt into the agency’s appraisal procedures and lending policies.” there was “an explicit commitment to racial exclusion” by the agency that was “codified to a series of residential security maps commissioned by the fhlbb in 1935.” accordingly, the holc worked with the lenders and realtors to design “maps . . . which ranked neighborhoods on a scale of a (most desirable, and hence, most valuable) to d (in ‘decline’ and least valuable).”108 the neighborhoods considered “d” received a code “red” under the holc system and thus, the system known as “redlining” was born.109 redlining, long linked to banks and other institutions outside the government, is essentially a creation of the federal government.110 the system that was designed did reflect the racial attitudes prior to the creation of the holc but the agency and the federal government created the system.111 even more destructively, the fha not only provided insurance protection on the consumer loan transactions, the agency also provided protection to builders constructing new housing.112 for decades, if a developer (builder) did not include a racial covenant that excluded blacks and other groups from ever purchasing and/or occupying the house, the fha provided no insurance to the builder.113 the fha                                                                                                                 98 kenneth t. jackson, race, ethnicity, and real estate appraisal: the home owners loan corporation and the federal housing administration, in the suburb reader 247, 247–48 (becky m. nicolaides & andres wiese eds., 2006). 99 id. 100 robert mcelvaine ed., down & out in the great depression 53 (2008). 101 shapiro & oliver, supra note 10, at 16–17. 102 id. 103id. 104 id. 105 id. 106 rudolph alexander, racism, african americans, and social justice 85 (2005). 107 id. 108 freund, supra note 8, at 115. 109 id. 110 id. 111 id. 112 gotham, supra note 97, at 57–58. 113 id. 12 chances are vol. 3:1   policy was complex but does explain america’s racial history and the current state of race relations in the united states. the fha refused to insure mortgages in “racially mixed areas” but also refused to insure “the homes” as well unless the home and the community complied with the racist occupancy standards imposed upon the industry and consumers.114 these historical facts substantiate the testimony at the washington, d.c. hearings of the witnesses from the banking industry and from the government in april 1962. thomas c. barringer testified at the hearings on behalf of the fha.115 barringer was the director of the washington, d.c. fha insuring office, an office that served not only washington, d.c., but also suburban cities such as falls church, va., alexandria, va., and suburban counties such as prince george’s county, and montgomery county.116 barringer testified that it was the fha policy that properties should be “made available to all qualified applicants without regard to their race, creed or color.”117 however, in the same statement he admitted that “the opportunities” for african americans and other “non-european minorities” to purchase anywhere in the area (including the historically exclusively white areas) was “still limited.”118 barringer’s testimony regarding the ability of the fha to compel non-discriminatory conduct by builders who were receiving the fha’s insurance protection was quite revealing. the questioning came from berl bernhard, staff director of the united states commission on civil rights in 1962:119 mr. bernhard: would it be accurate to say that the affirmative policy you are talking about of encouraging open occupancy only becomes an operating procedure when the locality or the state has a fair housing law in effect? mr. barringer: we have no right to deny a builder assistance—i mean fha insurance— on the basis of what position he may take. we have jobs built on an open occupancy basis, and we are delighted to have them, but we have not been able to tell a builder: ‘unless you provide for open occupancy we will cut off your commitments.’120 in other words, the fha could not guarantee the construction of properties that would be open to anyone for purchase regardless of race. barringer admitted that the fha’s only means of opening up areas to integration was through “encouragement.”121 barringer confirmed the speculation of lawyers, economists, sociologists and politicians regarding the fha policy. paul p. cooke, national vice chairman of the american veterans committee, also confirmed the policy of the fha as well as the testimony of mr. barringer. mr. cooke testified of actual instances where qualified african americans (edmund millard and joseph edwards) sought to purchase homes in the suburbs that were set aside exclusively for whites.122 mr. cooke elaborated that there were thousands of homes being built currently in the washington, d.c. metropolitan area and african americans, even if qualified, could not purchase any of these properties.123                                                                                                                 114 id. 115 id. at 222. 116 id. 117 gotham, supra note 97, at 223. 118 id. at 224. 119 id. at 5. 120 see housing in washington, supra note 12, at 244. 121 id. at 245. 122 id. at 228. 123 id. at 228–29. 2013 columbia journal of race and law 13 “this is often referred to as the white noose around the black core,” cooke stated, “with negroes heavily in the center of the city and the white noose of suburban america around this core.”124 mr. cooke’s testimony identified actual individuals who were denied an opportunity to purchase housing as a direct result of government policy.125 mr. cooke even provided the names of individuals who were discriminated against and the details of the specific incident.126 mr. cooke also testified regarding other individuals who were denied the opportunity to purchase homes in desirable suburban areas in the washington d.c. region.127 in addition, mr. cooke testified that these individuals earned high incomes and would easily financially qualify for the purchase of a property.128 this would directly challenge any suggestion that even if these individuals had been extended credit they would not have qualified for a long term mortgage loan.129 iv. what do the hearings mean? a. wealth accumulation the real meaning of the u.s. civil rights commission’s april 1962 hearings is that housing discrimination, racial segregation, and economic inequality have been persistent problems in our society and share a direct relationship.130 unfortunately, the commission did not discuss this problem131 or the wealth gap between the races that exists today as a result of the some of the events described by the witnesses.132 wealth is the key to understanding economic inequality in the united states because it is different from income; wealth is permanent and extends opportunities to families for generations.133 it is how families have been able to put their children through college and to purchase a home of their own.134 in the united states, the major path to wealth accumulation historically has been and still is home ownership.135 it is not one’s regular paycheck but is more permanent items such as home equity, stocks, bonds, inheritance; your assets minus your liabilities.136 white families historically have been in a much better position to accumulate wealth in this society because their home ownership rates have always been higher than the rest of the population.137 this is where government housing policy has been                                                                                                                 124 id. at 229. 125 housing in washington, supra note 12, at 229. 126 id. 127 id. 128 id. 129 id. 130 michael t. maly, beyond segregation: multiracial and multiethnic neighborhoods in the united states 2–3 (2006). 131 according to the latest statistics on discrimination, it continues to occur, segregation patterns have not been reversed, and economic inequality between the races persists as well. the national fair housing alliance reported on discrimination patterns and racial segregation in april 2010 while professor thomas shapiro of brandeis university reported on the wealth gap between whites and minorities as referenced in this article in more detail below. thomas shapiro, laura sullivan & tatjana meschede, the racial wealth gap increases fourfold, institute on assets and social policy (may 2010), available at http://iasp.brandeis.edu/pdfs/racial-wealth-gap-brief.pdf. 132 id. 133 dennis l. gilbert, the american class structure in the age of inequality 237 (2008). 134 shapiro et al., supra note 131. 135 yuval elmelech, transmitting inequality: wealth and the american family 13 (2008). 136 shapiro & oliver, supra note 10, at 75–79, 108–09, 113. 137 id. 14 chances are vol. 3:1   so destructive. the home ownership rates (and the gap), as perpetuated through government policy, have been described as the single greatest “indicator” of a persistent “social inequality” in the united states.138 at the turn of the century, only twenty-two percent of african americans owned a house compared to forty-five percent of the whites.139 while there were several different patterns of small growth and decline during the twentieth century, the gap remained fairly constant, decreased to a small degree for a short period of time, but ultimately increased on several occasions.140 by 1960, thirty-nine percent of african americans owned their homes but sixty-six percent of whites owned a home, an increase over sixty years in the racial gap of fifteen percent.141 the testimonial results from the hearings in washington, d.c. were also from just one city. the u.s. civil rights commission held similar housing hearings in other cities.142 prior to the washington, d.c. hearings in 1962, the commission had already held hearings in new york, atlanta, and chicago, and uncovered similar racial patterns and results.143 this means that the economic oppression created by government policy over decades is not contained to one city and there is likely very specific evidence of that policy, its implementation, and who exactly was affected by the policy (as in the washington d.c. hearings). other evidence is also available regarding other major american cities in regards to housing discrimination towards african americans. for example, a 1967 study regarding st. louis determined that the home ownership rate in that city would have been thirty percent higher “if blacks had been able to purchase homes at the same rate of whites at similar life cycle stages and with similar income, education, and employment characteristics.”144 the conclusion of the study, like the testimony from the 1962 washington, d.c. hearings, is fairly consistent with the factual history of the issue: in addition, their results showed that black homebuyers paid more than whites for equivalent housing. they concluded that restriction on the supply of housing—a function of segregation and housing market discrimination—was the root cause of both the home ownership deficit and higher ownership costs for blacks.145 the results of the st. louis study are not the exception either; this is essentially the norm in cites with high concentrations of african americans and it was due to the policy forged by the government and the accompanying actions of the various private actors.146 for example, the city of detroit presented similar patterns of home ownership as st. louis during a similar period.147 even more revealing are the statistics on fha mortgages. of all the home mortgage loans financed in the u.s. between 1946 and 1959, “blacks purchased less than 2 percent of all loans financed with the assistance of federal mortgage insurance.”148 in addition, evidence regarding cities across the country establishes the existence of racial discrimination and segregation in housing at the time of the                                                                                                                 138 karin kurz & hans peter blossfeld, home ownership and social inequality in comparative perspective 316 (2004). 139 race and wealth disparities: a multidisciplinary discourse 17 (beverly moran ed., 2008). 140 id. 141 id. 142 see dulles, supra note 1, at 51. 143 id. 144 id. 145 kurz & blossfeld, supra note 138, at 316. 146 id. 147 id. at 317–18. 148 michael t. maly, beyond segregation: multiracial and multiethnic neighborhoods in the u.s. (2006). 2013 columbia journal of race and law 15 1962 hearings.149 the issue, therefore, is not whether racism impacted the economic status of african americans in the twentieth century and beyond; it is to what extent african americans were impacted by their choices and who specifically was impacted by the policy. b. the swelling “racial” chasm in the 21st century economic inequality between the races, a direct result of housing discrimination decades ago, is a phenomenon that is barely discussed in society today as a policy concern. it is important to place this social phenomenon in proper context because the actions described in the washington, d.c. hearings in 1962 have had long lasting implications for real racial inequality. according to michael powell, in a 2010 new york times article on the subject, “[t]he reasons for” the wealth “gap are rooted deep in this nation’s racial history. government policy shut many blacks out of homeownership during the depths of the depression.”150 “discriminatory bank lending and real estate practices” assured segregated neighborhoods and economic inequality.151 sociologist and brandeis university professor thomas shapiro stresses that the impact of this historical policy, the failure to address the problem, and new policies that continue to promote the wealth gap are ever present.152 while the wealth gap between whites and blacks was approximately $20,000 in 1984, by 2007 it had risen to $95,000.153 professor shapiro identifies several factors that can explain this increase in the wealth gap, including tax policies that perpetuate inequality and labor problems.154 however, a continued lack of equal access to credit for home mortgages is a primary factor according to shapiro.155 shapiro’s analysis of high earning african americans is particularly striking. according to shapiro, middle income white families accumulated an average of $74,000 in wealth from 1984-2007. however, on average, high earning african american families only accumulated $18,000 during this same period. shapiro stresses that the increasing wealth gap cannot be explained by looking at income.156 other evidence also supports shapiro’s conclusions regarding the wealth gap years before shapiro’s latest conclusions. for example, a study conducted by the university of michigan in 2000 concluded that access to home ownership remained a major issue for african americans as compared to whites.157 the study focused upon renters in 1991 and learned that by 1996, twenty-nine percent of the whites had purchased a home compared to only twelve percent of the african americans in the focus group.158 of course, the concern with respect to the homeownership gap and the wealth gap is what it has produced and will continue to produce: an unequal society divided by race, on an economic basis. it is again professor shapiro who examined the problem as a real societal issue that cannot be ignored because of the by-products of the phenomenon.                                                                                                                 149 leon mathis despres & kenan heise, challenging the daley machine: a chicago alderman’s memoir 136–37 (2005); see generally stephen grant meyer, as long as they don’t move next door 10–11 (2001). 150 michael powell, wealth, race, and the great recession, n.y. times, may 17, 2010, http://economix.blogs.nytimes.com/2010/05/17/wealth-race-and-the-great-recession. 151 id. 152 shapiro et al., supra note 131, at 1–2. 153 id. 154 id. 155 id. 156 id. 157 kerwin kofi charles & erik hurst, the transition to homeownership and the black-white wealth gap 29 (march 2000), available at http://www.fordschool.umich.edu/research/papers/pdffiles/00-012.pdf. 158 id. 16 chances are vol. 3:1   shapiro describes wealth as the “single dimension in which whites and blacks are persistently unequal” and contends that the study of its relationship to racial inequality on economic terms has been “neglected.”159 darrick hamilton corroborates shapiro’s conclusions. he notes: “despite an enormous and persistent black-white wealth gap, the ascendant american narrative is one that proclaims our society has transcended the racial divide. but wealth is a paramount indicator of social well-being.”160 according to hamilton, “[w]ealthier families are better positioned to afford elite education, access capital to start a business, finance expensive medical procedures, reside in higher-amenity neighborhoods, exert political influence through campaign contributions, purchase better legal representation, leave a bequest, and withstand financial hardship resulting from an emergency.”161 v. lessons of the 1962 hearings and the foreclosure crisis of 2007 a. the american racial dynamic the past racial injustices in the united states continue to shape the present and future. housing discrimination now has two difficult issues to address. first, past government policy in the housing market was discriminatory against african americans and other minorities and promoted economic inequality. nothing has ever been done to address this problem.162 second, present government policies regarding home ownership and wealth accumulation and preservation, will not alter the past and do not address current abuses in the housing market.163 in the current foreclosure crisis, there is evidence of continued discriminatory behavior by private actors in the housing market.164 for the last four years, the united states has been experiencing a destructive foreclosure crisis within the housing market that is resulting in loss of homes and wealth, and the devaluation of entire communities.165 a racial component to the crisis has emerged over the last few years.166 this is perhaps unintentional but nevertheless, race is still a major part of the crisis. due to the fact that african americans and other minorities were confronting great difficulties in the area of homeownership in the 1990’s, president bill clinton sought to address the deficiency from 1994 to 1995 by implementing a major homeownership initiative that would allow financial institutions to offer home purchase opportunities to groups that were historically underrepresented in the housing market. the initiative was known as “the national homeownership strategy.”167 a major part of president clinton’s homeownership initiative was contained in a document known as “urban policy brief #2.”168 the document was created at the request of president clinton and was intended to be an “unprecedented public-private partnership to increase homeownership to a record-high level over the                                                                                                                 159 thomas m. shapiro, the hidden cost of being african-american 33 (2004). 160 darrick hamilton, race, wealth, and intergenerational poverty, the american prospect (aug. 14, 2009), http://prospect.org/article/race-wealth-and-intergenerational-poverty. 161 id. 162 while many anti-discrimination laws have been passed, no laws at the present time have been passed to address the past effects of discrimination towards african americans and other minorities. 163 current anti-discrimination laws such as the fair housing act and the equal opportunity act are enforcement laws that attempt to address discrimination that will occur now; these laws do not address the effects of government sponsored housing discrimination. 164 shapiro et al., supra note 131. 165 william alden, foreclosure crisis hit blacks the hardest, the huffington post (oct. 4, 2010), http://www.huffingtonpost.com/2010/10/04/post_541_n_749319.html. 166 id. 167 u.s. dep’t of housing & urb. dev., urban policy brief no. 2, home ownership & its benefits (1995) [hereinafter home ownership]. 168 id. 2013 columbia journal of race and law 17 next 6 years.”169 president clinton began the homeownership initiative specifically because homeownership levels had dropped significantly from 1980 to 1991.170 this included significant declines in the homeownership rate for african americans and latinos.171 the initiative, noting the government’s successful history in promoting homeownership for more than sixty years, expressly desired to target these groups and also underserved communities in an effort to increase homeownership.172 it was not solely a government effort but was a public-private partnership: under the leadership of secretary cisneros, hud has forged a nationwide partnership that will draw on the resources and creativity of lenders, builders, real estate professionals, community-based nonprofit organizations, consumer groups, state and local governments and housing finance agencies, and many others in a cooperative, multifaceted campaign to create ownership opportunities and reduce the barriers facing underserved populations and communities.173 the initiative proposed various means with which to accomplish this goal, including “expanding homeownership education and counseling,” “opening the home buying market to underserved communities,” and “making financing available, affordable, and flexible.”174 president clinton’s initiative called for alternative financing products and changes in down payment requirements and interest costs in an effort to extend homeownership opportunities to underrepresented groups. it is this area in particular that became the area of exploitation that would contribute significantly to the foreclosure crisis.175 as is now reported, the private institutions responsible for providing financing to consumers seeking to purchase homes or to refinance existing homes targeted some groups more than others with risky loan products more likely to result in a default upon that mortgage or loan.176 this practice is commonly known as “reverse redlining.” 177 where redlining, as described previously in this article is the denial of an opportunity to purchase a home on racial grounds, reverse redlining is the exact opposite. minority communities (an area with a large number of african americans for example) are targeted with risky mortgage products because they are a minority such as african american or latino.178 at the center of the foreclosure crisis, african americans were disproportionately sold “subprime” mortgage products.179 this predatory lending was the front end of the current foreclosure crisis.180                                                                                                                 169 id. 170 id. 171 id. 172 home ownership, supra note 164. 173 id. 174 id. 175 id. 176 jim lampen, update on mortgage discrimination, dollars & sense http://www.dollarsandsense.org/archives/2010/1110campen.html (last visited july 1, 2011). 177 this note requires two definitions to expand the discussion. “reverse redlining” is the extension of credit (in this instance a home mortgage loan or home equity loan) “on unfair terms to particular geographic areas” on the basis of race or nationality. in addition, the home mortgage loans or home equity loans described herein as “risky” are new mortgage and equity products created by the financial institutions as a result of the clinton initiative. these included on many occasions adjustable rate mortgage loans (arm) where an initial fixed interest rate considerably lower than the market is initially offered on the loan only to be followed shortly thereafter by an adjustment in the rate to a higher adjustable rate. the black metropolis in the twenty first century: race, power, and politics of place 3 (robert doyle bullard ed., 2007); daniel denvir, does wells fargo hate black people, the philadelphia wkly., aug. 3, 2010, http://www.philadelphiaweekly.com/news-and-opinion/does-wells-fargo-hate-black-people.html. 178 id. 179 id. 180 back in the late 1990’s, the consumer advocacy organization acorn predicted a future foreclosure crisis because of predatory lending practices in california where minorities and low-income communities were being targeted with loans with unfavorable default prone terms. see robert gammon, acorn foresaw the foreclosure crisis in 2001, the e. bay express, sept. 29, 2009, http://www.eastbayexpress.com/ebx/acorn-foresaw-the-foreclosure-crisis-in2001/content?oid=1371384. 18 chances are vol. 3:1   once consumers defaulted on these loans, the housing market collapsed followed by the entire global economy.181 when the evidence revealed that the surge in foreclosures was due to the intentional actions of financial institutions in selling deceptive loan products to african americans, legal actions commenced. for example, the city of memphis sued wells fargo bank specifically on this basis.182 in june 2010, the pennsylvania human relations commission (phrc) filed a similar lawsuit against wells fargo alleging reverse redlining tactics towards african-americans in the city of philadelphia.183 the phrc complaint states, in pertinent part the following: since at least 2004 and continuing to the present, respondents have been engaged in the unlawful discriminatory practice of reverse redlining by targeting african americans and african american neighborhoods in philadelphia for deceptive, predatory or otherwise unfair lending practices. respondents’ unlawful discriminatory practices have contributed significantly to the disproportionately large number of foreclosures found among african american borrowers and in philadelphia’s african american communities.184 the details of the lawsuit are more understandable than a technical lawsuit when spoken in statistical terms. according to media reports during the legal dispute, about fifty-one percent of loans from 2004 to 2008 sold in the city of philadelphia were to african americans and were of the high-risk variety (subprime), prone to default and foreclosures.185 this disproportionate concentration of lending was consistent with national figures dating back to the 1990’s.186 only about nineteen percent of the loans to whites living in philadelphia could be categorized as high risk.187 other cities and areas have reported similar statistics.188 this lawsuit has recently been settled as part of a larger legal action against wells fargo by the u.s. department of justice. the settlement was estimated at $175 million overall and $2 million specifically to residents of the philadelphia area.189 the data is also quite detailed and is conclusive that there is a racial component to the lending patterns. according to data collected by the federal government pursuant to the home mortgage disclosure act (hmda), subprime lending in communities of color played a role in the collapse of the mortgage market.190 the data collected also indicated that individuals from communities of color were sold loans in a disproportionate manner that contained “toxic terms” and “unmanageable obligations.”191 the data has also been fairly consistent that there is discrimination based upon race in the mortgage lending market.192 the rate of subprime loans sold in 1998 to upper income african american communities was                                                                                                                 181 david leonhardt, we’re spent, n.y. times, july 16, 2011, at sr1. 182 andrew martin, judge allows redlining suits to proceed, n.y. times, may 5, 2011, at b9. 183 daniel denvir, does wells fargo hate black people, the philadelphia wkly., aug. 3 2010, http://www.philadelphiaweekly.com/news-and-opinion/does-wells-fargo-hate-black-people.html. 184 see plaintiff’s complaint, pennsylvania human relations commission v. wells fargo bank n.a. (july 1, 2010), available at http://www.scribd.com/doc/34936127/phrc-wells-fargo-complaint. 185 see martin, supra note 182. 186 u.s. dep’t of housing & urb. dev., unequal burden: income & racial disparities in subprime lending in america (1998). 187 complaint, supra note 184, at 7. 188 nat’l comm’n on fair hous. & equal opportunity, the future of fair housing 33 (2008). 189 jeff blumenthal, wells fargo to pay $175 m to settle lending discrimination accusations, philadelphia bus. j., july 12, 2012, http://www.bizjournals.com/philadelphia/blog/jeff-blumenthal/2012/07/wells-fargo-to-pay-175m-tosettle.html.. 190 raymond h. brescia, subprime communities: reverse redlining, the fair housing act & emerging issues in litigation regarding the subprime mortgage crisis, 2 alb. gov’t l. rev. 164, 168 (2009). 191 id. 192 id 2013 columbia journal of race and law 19 thirty-nine percent while the rate for whites was only six percent. 193 the rate for low-income whites was only eighteen percent, meaning upper income african americans were much more likely to be sold an expensive, foreclosure prone loan than a low-income white person.194 in 2005, half of the loans sold to african americans were subprime loans.195 in 2006, similar statistics have been recorded by hmda.196 the clinton initiative encouraged lenders to extend mortgages to african americans and other minorities, which, as previously mentioned, were often subprime loans. the by-product of this evolutionary cycle in the housing market is that african americans are losing their homes to foreclosures and as a result, losing the wealth they had accumulated or were attempting to accumulate.197according to the economic policy institute, the statistics over the last few years on the issue of wealth loss during this foreclosure crisis are clear: in 2004, the median net worth of white households was $134,280, compared with $13,450 for black households, according to an analysis of federal reserve data by the economic policy institute. by 2009, the median net worth for white households had fallen 24 percent to $97,860; the median net worth for black households had fallen 83 percent to $2,170, according to the institute.198 thus, private actors who implemented their programs at the urging of the federal government have decimated existing family wealth during this housing crisis and economic recession as a result of the racial discrimination. but the other component of this latest crisis that involves race and the housing market and how mortgage financing was administered involves government oversight. specifically, president clinton called for fair lending practices by the institutions involved in the initiative in his homeownership strategy.199 there is no indication that president clinton called for these private actors to discriminate or to disobey existing anti-discrimination laws to accomplish his goals of increased homeownership.200 according to a democratic policy committee report prepared in october 2008 with respect to oversight of subprime mortgage selling practices, the bush administration ignored the warning signs regarding the problems arising relating to these practices.201 the report adds that the republicans who controlled congress during the burgeoning years of the creation of the crisis (1994–2006) harbored hostility towards regulation.202 in addition, the bush administration not only resisted any regulation; the administration remained committed to more deregulation even as problems began to arise in the mortgage market.203 there was little oversight during this period and speculators were encouraged to continue their risky practices that would eventually result in a collapse of the housing market and the economy.204 to a certain degree, the government has taken action on this issue.205 this includes the passage of a new                                                                                                                 193 id. 194 id. 195 brescia, supra note 187, at 168. 196 id. 197 jesse washington, the disappearing black middle class, chi. sun times, july 10, 2011. 198 id. 199 exec. order no. 12,892, 24 c.f.r. 107 (1994). 200 id. 201 senate democrats are committed to change, democratic policy committee (october 2008), http://dpc.senate.gov/dpcdoc.cfm?doc_name=fs-110-2-166. 202 id. 203 id. 204 id. 205 in july 21, 2010, president barack obama signed the dodd-frank wall street reform and consumer protection act which sought to address some of the abuses of the market that led to the foreclosure crisis and the current economic recession. brief summary of the dodd-frank wall street reform and consumer protection act, united states 20 chances are vol. 3:1   comprehensive consumer protection act that purports to address some of the abuses.206 b. government inaction and delay: the 1962 hearings one problem with today’s foreclosure crisis and the racial issues in that crisis is a delay by the government to act or to correct problems. eugene davidson, former president of the washington, d.c. real estate broker’s association, testified regarding discrimination at the 1962 hearings, stressing why delaying to correct racial problems is destructive: i have been disturbed very much today by statements of some witnesses that time is going to cure this. i was disturbed by one of them talking about 10 years and another talking about 3 years, and i think we have got to realize that we have before us an urgent problem, that the time is past for the luxury of discrimination and people having to discriminate against fellow people.207 in addition, the commission issued findings and recommendations following the hearings and only a portion of the recommendations were ever implemented though many years later.208 for example, the commission recommended, among other things, a “regulation prohibiting discrimination on the basis of race, color, religion, or national origin, in the sale, rental, or financing of housing accommodations within the district of columbia.”209 this recommendation is, by its language, the fair housing act of 1968.210 other recommendations also shared some connection with the fair housing act, including recommendations 2 and 3 which also prohibited discrimination by real estate brokers and salesmen (recommendation 2), and attempted to correct the use of racial covenants in titles to property (recommendation 3). no recommendations were offered to address past injustices.211 other laws such as the community reinvestment act and the home mortgage disclosure act followed within the decade and these laws as well possessed some connection to recommendations of the commission.212 but these laws were also passed over a decade later and also did not address past injustices and lacked the ability to actually address discrimination in the housing market. this provides the other lesson that can be gathered from the hearings: the government should act quickly to address racial problems in the housing market. of course, this inequality, unlike civic inequality (right to vote, public accommodations, public education, etc.), has never been addressed. the fair housing act addressed some of the systemic problems but the inequality that was created has been ignored. there is barely any discussion regarding what to do about the problem even though the facts are available. with respect to the current mortgage crisis and the racial component, it is apparent that the racial chasm is growing judging by the wealth gap evidence gathered by professor shapiro and others.213                                                                                                                                                                                                                                                                                                                                                                       senate committee on banking, housing, and urban affairs, http://banking.senate.gov/public/_files/070110_ dodd_frank_wall_street_reform_comprehensive_summary_final.pdf (last visited dec. 4, 2012). 206 housing in washington, supra note 12, at 189. 207 id. 208 id. at 35. 209 id. 210 42 u.s.c. § 3601 (1968). 211 no effort has ever been made to provide african americans with monetary restitution for being forced to reside for decades as second class citizens with no rights under the law or by custom. 212 the community reinvestment act was adopted into law in 1977 and is intended to encourage depository institutions to help meet the credit needs of the communities in which they operate. community reinvestment act, pub.l. 95-128, 91 stat. 1147 (1977); home mortgage disclosure act, pub.l. 94-200, 89 stat. 1125 (1975). 213 kai wright, the racial wealth gap’s larger than ever, the san francisco bay view, july 31, 2011, at 1. 2013 columbia journal of race and law 21 vi. conclusions and recommendations based upon the historical discussion in this article and modern evidence of housing discrimination, only aggressive action will address the problem created at least, in part, by the federal government. in addition, discrimination that has occurred in the past in the housing market must be addressed in some manner quickly. due to rapid developments in the current foreclosure crisis, recommendations for action evolve quickly. to its credit, the federal government has even implemented a few recommendations that were discussed earlier in this article.214 however, even with these improved efforts there is no government focus upon the wealth disparity of the past or the loss of wealth stemming from the current foreclosure crisis. the efforts of the government are limited in scope and will not address the problem completely or to a significant degree. the following recommendations would add more intensity to the effort to address the overall problem of economic inequality and reform of the housing market into the future: 1. truth and reconciliation commission a truth and reconciliation commission should thoroughly examine the available evidence regarding the policy of the federal housing administration from 1934, and how that policy led to the denial of home purchases by african americans and anyone else of any other race or ethnicity. monetary restitution for past policies of the federal government should not be ruled out for any individual or family regardless of race or ethnicity, but that is not the stated goal. considering the enormous racial gap between the races due to past abuses in the housing market, those who would have benefited from equal treatment in the past can receive that benefit now.215 the commission should investigate the actions of the government and financial institutions, and the contemporary effects of these historical actions. the commission should attempt to identify individuals who actually were denied equal treatment in the housing market in order to compare outcomes. but the true significance of the formation of such an entity is it is an acknowledgement that the racial problems of the past present lingering economic challenges that must be addressed. even if no monetary restitution is provided, the information uncovered by the effort could also contribute to a healing process as the nation seeks to move forward. in much the way south africa made use of a truth and reconciliation commission in the post-apartheid era, the united states can make use of a commission to investigate financial abuses over the past seventy to eighty years.216 while the south african commission addressed racial violence, the model is relevant because of the impact of the violence upon the lives of ordinary citizens on the basis of race. this commission would have a similar goal of investigating the impact upon the lives of ordinary citizens. 2. bankruptcy reform                                                                                                                 214 this paper was originally presented in november 2011. since that time, the obama administration has implemented a limited principal reduction effort on mortgages in a settlement with some of the largest mortgage holding banks in the nation. the administration has also become slightly more aggressive in bringing legal actions against some of the financial institutions accused of racial discrimination in mortgage lending. 215 john lescott-lesczcynsky, the history of ethnic policy and its effect upon european ethnics 106 (1984). 216 the truth and reconciliation commission, http://www.justice.gov.za/trc/ (last visited dec. 4, 2012). 22 chances are vol. 3:1   amend the bankruptcy code enabling bankruptcy judges to “cram down”217 the principal amounts on the mortgage loans of consumers filing bankruptcy. this will allow many consumers to emerge from bankruptcy in a better financial position and will also afford them the opportunity to refinance their homes with more affordable interest rates and at prices they can afford. this recommendation has been presented numerous times to lawmakers in congress and it has failed to pass into law each time due to intense political pressure from financial institutions.218 3. principal reduction reduce the principal on mortgages on homes in areas where the foreclosure rate is exceedingly high and/or the drop in value of the home is quite excessive. provide these homeowners (if reasonably credit worthy) with a new mortgage on fair, manageable terms that take into account the risk and the ability to satisfy the mortgage. as alluded to above, this recommendation has been partially adopted on a small scale by the obama administration. the important aspect is it would allow homeowners to retain their homes and maintain their asset and the possibility of building future wealth. 4. housing discrimination enforcement invigorate housing discrimination enforcement with a real commitment to reduce the level of discrimination currently in existence with additional funding and resources with which to address housing discrimination. the national fair housing alliance has sought increased funding for enforcement of the nation’s housing discrimination laws. current funding is inadequate. in 2010, congress held hearings on the housing fairness act and this act’s purpose was to strengthen housing discrimination enforcement efforts.219 some who testified at the hearings on the bill proposed additional funding for fair housing enforcement above the current amounts provided over the last few years.220 however, before the law could be presented for a congressional vote, the democrats lost control of congress and the bill has had no activity since that time. while there are many other actions that can be taken to address the housing crisis and the problem of economic inequality, these recommendations have been circulated in various advocacy circles. resistance to these proposals has been fierce; it is not likely any of these recommendations has any chance of becoming law or policy for reasons political and philosophical. however, the resistance has ramifications beyond the housing market. as the writer and human rights lawyer randall robinson has written, if the problem of economic inequality amongst the races is not addressed, it is not likely that racial problems will disappear.221 in other words, a post-racial america will remain elusive.222                                                                                                                 217 a cramdown in bankruptcy is when the debtor only pays the value of the item they have financed. in reality, it is a court-approved way to get out of some of your contractual obligations. the court replaces the value that you are contracted to pay on a certain item with an approved current value of that item. 218 alex ulam, why mortgage cramdowns are still the best bet to save the economy, the nation, oct. 20, 2011, http://www.thenation.com/article/164096/why-mortgage-cramdown-bill-still-best-bet-save-economy. 219 h.r. 476, 111th cong. (2009). 220 the author testified at the hearing and attended the hearing on january 20, 2010. 221 see generally randall robinson, the debt: what america owes to blacks (2002). 222 “post-racial” is a term that has come into more common usage since the election of barack obama as the first black president of the united states. it is not generally known what this term means other than it suggests that the country will be beyond its problems of the past centered around race. 2012 columbia journal of race and law 267 astrology and race: aspects of equality after critical race theory gianfrancesco zanetti  historically, critical race theory (crt) has been neglected in european legal scholarship. crt approaches promise to be a useful avenue for european jurisprudence, however, as european nations rapidly become more multiracial. the focus of this essay is on the theoretical value that radiates from some critical race theory lines of thought, written from the perspective of an italian legal scholar engaging in crt. in particular, there are some aspects of crt jurisprudence that are valuable from a general, legal-philosophical, point of view. in this vein, crt scholars have authored scholarship that has had an impact on the traditional, liberal notion of equality. an apparently reasonable jurisprudence has been seen to revolve around a pseudo-scientific array of notions (―neutral‖ races, conceived as zodiac signs) that are lacking any sound epistemic ground: therefore, a form of astrology. introduction.................................................................................................. 267 i. politics and race............................................................................... 269 ii. equality and race............................................................................. 272 iii. further equalities.......................................................................... 275 iv. final remarks....................................................................................... 277 introduction critical race theory (crt) is not well known in europe, to put it mildly. there are several reasons for the demonstrable lack of interest that european scholars have displayed for this specific brand of so-called ―post-modern jurisprudence.‖1 one of the reasons for this phenomenon is, of course, the simple fact that, in europe, the issue of ―race‖ 2 and law has always been seen from the point of view  professor, department of legal studies university of modena and reggio emilia, italy. heartfelt thanks to kendall thomas for having so patiently discussed the principles of critical race theory (crt) with me while i was teaching at hunter college in new york city. the editors of the columbia journal of race and law also provided useful criticism and editing, for which i am very grateful. this paper is dedicated to the memory of andrea sangiorgi, 6th dan shotokan karate. 1 see generally gary minda, postmodern legal movements: law and jurisprudence at century‘s end (1995). 2 needless to say, ―race‖ is a term that is often mentioned between cautionary quotes. we do not need the learned remarks by cavalli sforza to be aware that, as a taxonomic entity, race is at the very least an unclear notion. see generally luigi cavalli-sforza, genes, peoples, and languages (2000). those who have believed in races have astrology and law vol. 2:2 268 of europe‘s great sin: the shoah. racism as anti-semitism, therefore, has often been studied from the point of view of totalitarianism.3 in italy, for example, the 118 issues of the journal la difesa della razza (―defending the race‖), published from 1938 through 1943, provide a comprehensive representation of the type of racism active during the mussolini era.4 the ―negro‖ race is, together with the jewish one, the main target of the published contributions. while the former can elicit a paternalistic, patronizing attitude compatible with italian colonialist ambitions in africa, the latter never fails to summon a darker, more intense, and subtler repugnance.5 at the end of the day european racial laws are, by definition, the laws enacted before or during world war ii in order to strip european jewish people of their fundamental rights. italian racism was later bracketed off as something exceptional and therefore worth investigating from only a historical point of view. the light shed by crt studies on the complex relation between race and law was therefore never truly identified as a concept that should be integrated into the corpus of italian legal liberalism. i, too, was personally influenced by this dismissive attitude. in 1999, i was sitting in a cafe with a brilliant colleague who asked me, out of the blue, to name the most outstanding contemporary scholars or movements in jurisprudence or philosophy of law–one of those awful questions you cannot answer without getting yourself into trouble. i remember that i quickly mentioned the names of some well-known movements, including critical legal studies and legal feminism. i did not need to think much about it, however, because i had just edited an italian reader on the subject that described the work of contemporary legal philosophers.6 he asked me if i had at least considered critical race theory as part of my list. i answered honestly that i had not given crt much thought at all. as a result of that conversation, prodded by my caring but unmerciful friend, i realized that my knowledge of the crt movement was, at best, superficial. after a few days, still in a brooding mood, i started to read some key texts of the movement, and i later personally translated some of them into italian. never been able, for example, to agree on the number of races, while ―splitters‖ find it proper to multiply the number of races, ―lumpers‖ rather maintain the existence of just a few racial groups. broadly speaking, all ―taxonomists fall into two camps: lumpers and splitters. (this classification is in itself an example of the simplest of taxonomies.) lumpers take a large number of items that seem amenable to sub-grouping . . . and lump them together to form a single category . . . . lumpers concentrate on the relevant similarities of items and aggregate them. . . . on the other hand, there are the splitters. splitters are those who, as they begin the task of reducing a mass of data or an extremely long list of items to a small number of easily conceptualized and meaningful groupings, think it wise to give more attention to differences in the objects of their inquiry than do the lumpers.‖ frank dumont, a history of personality psychology: theory, science, and research from hellenism to the twenty-first century 151-52 (2010). as far as the notion of race is concerned, charles darwin noted that, in the middle of the nineteenth century, various authors believed that the number of human races numbered in a wide range from two (as suggested by authors that we would label as ―lumpers‖ based on the above classification) to sixty-three (according to those we would call ―splitters‖). charles darwin, the descent of man 226 (1871). 3 see generally mathias möschel, the relevance of critical race theory to europe (2001) (unpublished ph.d. dissertation, european university institute); see also mathias möschel, color blindness or total blindness?, 9 rutgers race & l. rev. 57 (2007). 4 see federica durante et al., using the stereotype content model to examine group depictions in fascism: an archival approach, 40 eur. j. soc. psychol. 465, 467 (2010). see generally gene bernardini, the origins and development of racial anti-semitism in fascist italy, 49 j. mod. hist. 431-53 (1977) (describing in general the development of anti-semitism during the mussolini‘s regime). 5 valentina pisanty received all the original issues of la difesa della razza from umberto eco (save for one issue in photocopies). using these materials, he edited a most useful reader. see generally la difesa della razza. antologia 1938-1943 (valentina pisanty ed., 2006). 6 see generally gianfrancesco zanetti, filosofi del diritto contemporanei (1999). 2012 columbia journal of race and law 269 the idea behind these translations was the recognition that the crt approach is becoming increasingly useful for european jurisprudence as european nation-states become increasingly multicultural and multiracial. in a nutshell, this was why kendall thomas and i edited one of the first crt readers in a language other than english.7 the book was well received and sparked some interest even outside of italy,8 but to date it has not yet prompted consistent, structured jurisprudence research on crt topics. while european academic traditional jurisprudence does not seem to be overly interested in the contributions offered by crt, i propose that even if it emerges tangentially to the main goals of crt scholars, some important aspects of crt jurisprudence are valuable from a general, legalphilosophical point of view. this paper will therefore focus on the theoretical aspects and the general value added to legal discourse that radiate from some of the major crt lines of thought. viewed through this prism, the crt approach is neither redundant theory nor mere political activism. that is, on the one hand, it is not the case that there would be nothing in crt that could not be found in the traditionally liberal approach on liberty and rights. nor is it the case that even if its authors were to ―fight the good fight‖ politically, crt would not offer any genuinely theoretical contribution per se. rather, there is more than one way to highlight the theoretical value of the crt approach from the point of legal philosophy. one of the most traditional and academic subjects of western philosophy of law, now definitively passé, is the clash between natural law theories and legal positivism. we now have the example of martin luther king jr., who used the notion of natural law in his letter from birmingham jail, quoting st. augustine and st. thomas aquinas.9 such a notion could well have provided a suitable ground to early equality claims, as in the original abolitionist movement‘s recourse to natural law as a basis for the antislavery argument.10 it is therefore quite interesting to see how crt scholars, many years later, seemed to have grown increasingly suspicious of this kind of notion.11 for crt scholars, this suspicion arises from practical experience. even if the united states constitution was positioned as the result or manifestation of natural law and equality, the fact is that at the time of its adoption, very few doubted that this equality excluded inter alia blacks and women and even allowed for slavery. having said that, it is still worth remarking that crt has something to say on one of the most traditional subjects of jurisprudence, and it provides a contribution that can differentiate itself from the more traditional approach. what makes crt an important asset to legal philosophy is the fact that it contributes to the discourse independent of religious background. this conceptual distance12 is consistent with a specific jurisprudence. the crt sensibility, at the very least, offers new reasons to take sides in an old philosophical controversy. crt‘s focus on the relationship between law and race, therefore, sheds light on key subjects for political 7 gianfrancesco zanetti, la nozione de la razza, 3 filosofia politica 437-46 (2003); see generally kendall thomas & gianfrancesco zanetti, legge, razza, diritti: la critical race theory negli stati uniti (2005). 8 i would personally like to thank professor cristina garcia-pasqual for inviting me to give a public lecture on race and law: aspects of equality in crt (critical race theory), at the school of law in valencia, spain, on april 13, 2011. there has been interest in italy specifically as well. see, e.g., le discriminazioni razziali ed etniche: profili giuridici di tutela (diletta tega ed., 2011). 9 martin luther king jr., letter from birmingham jail, atlantic monthly, aug. 1963, available at http://www.theatlantic.com/ideastour/civil-rights/king-excerpt.html. 10 see, e.g., william e. nelson, the impact of the antislavery movement upon styles of judicial reasoning in nineteenth century america, 87 harv. l. rev. 513, 525-38 (1974). 11 see generally derrick darby, rights, race, and recognition (2009). 12 sometimes crt authors question the political strategy of the civil rights movement itself, on the grounds that it is not open enough to the specific values of black communities. see generally gary peller, race consciousness, 1990 duke l.j. 758, 758-806 (1990), reprinted in critical race theory: the key writings that formed the movement 127-58 (kimberlé crenshaw et al. eds., 1995). astrology and law vol. 2:2 270 philosophy and legal jurisprudence at large. one of these key subjects is the very structure of political society, which rests on an implied assumption of some kind of homogeneity among its members. i. politics and race philosophies of politics and law have traditionally occupied themselves with the notion of political society. the conceptual structure of the political unit has been the main focus of many key contributions of the legal-philosophical debate. one of the reasons for this interest is that it implies some kind of assumption of homogeneity among individuals, but such an assumption is never an easy one to make. race as a social construction also results in an assumption of homogeneity among individuals, in that those who belong to the same race are supposed to be representative of a somewhat homogenous group.13 race can be, in fact, a key factor in identity claims, in sustaining assumptions of homogeneity and therefore, conversely, in defining a politics of exclusion. needless to say, there can be several different theories that rely upon assumptions of homogeneity, many of which may be less emotionally charged, troubling, or embarrassing for the educated, sensitive ears of liberal thinkers than the ones conjured up by the word ―race.‖ yet they may still be equally fallacious and arbitrary. in this respect, the notion of race is first and foremost made more concrete, more embodied, and more ―dense‖ than other concepts. at the other extreme of the spectrum are those light assumptions of homogeneity which make a point of looking as slender and pale as possible and are often more neutral and substance-lacking. examples include the constitutional patriotism devised by jürgen habermas14 and the overlapping consensus described by the late john rawls.15 attempts to build a concept of ―european‖ identity are particularly interesting and religion has played an important role in this process. controversy has erupted over the notion of so-called common ―christian‖ roots. for instance, the holy see campaigned to have europe‘s ―christian heritage‖ explicitly mentioned in the preamble to the european union constitution.16 proponents of this idea, however, must not have had sufficient support if the vatican proposal found such effective opposition.17 the notion of a specific european racial homogeneity, on the other hand, has been decisively debunked18 and only a few extremists openly champion this cause now. the homogeneity assumption that supports the notion of race relies upon something related to the human body, to the power of the blood, to the bios. grounds for social consistency can be quite diverse and include topics such as language, nation, burkean manners (mores), religion, multiculturalism, a legal system grounded on shared values, a legal system based on liberal assumptions, or a legal system grounded on the acknowledgement of the value of diversity and the possibility of conflict through the politics of difference. race can be ranked at the top of this list, as the most sanguine factor. generally, grounds for self-identification can be ranked at the top of the list as well, and they often overlap with the 13 see robert miles & malcolm brown, racism 71 (1989). 14 see jürgen habermas, faktizität und geltung 632-60 (1992). 15 see generally john rawls, political liberalism (1993). 16 liz blunt, pope presses eu on constitution, bbc news, june 29, 2003, news.bbc.co.uk/2/hi/europe/3029456.stm. 17 see generally sdrjan cvijic & lorenzo zucca, does the european constitution need christian values?, 24 oxford j. legal stud., 739 (2004) (outlining the proposed compromise solution and the arguments against having such a statement of christian identity explicitly within the constitutional text). 18 see, e.g., cavalli-sforza, supra note 2. 2012 columbia journal of race and law 271 reasoning behind social consistency, which is illustrated in w.e.b. dubois‘s idea of race.19 lucius outlaw, jr. interpreted dubois‘s idea of race as ―a collection of persons of common biological descent who are ‗bound together‘ by the meaning-systems and agendas constitutive of shared cultural lifeworlds.‖20 the notion that europeans could share a common racial identity is linked to earlier works on racial classification, even when no hierarchy of races was originally implied. the seamless shift between groups within humankind was acknowledged, as in blumenbach‘s 1775 thesis. 21 the notion of the relative primacy of the aryan indo-european race is notably present in the writings of arthur de gobineau. his friend alexis de tocqueville, however, did not hesitate to distance himself from such an approach, writing back to his correspondent that a whole conceptual universe existed between the two of them.22 predictably, some controversial and arguably racist authors write that some europeans are more european than others. for instance, points 8 and 10 of the manifesto degli scienziati razzisti (―manifesto of the racist scientists‖) published in the very first issue of la difesa della razza (august 5, 1938) state that it is necessary to distinguish the mediterranean population of western europe from the eastern european and african populations, and that the purely european biological and psychological features of italians were not supposed to be altered.23 even outside an openly racist discourse, however, using the concept of race to capture the identity of a community can be quite tricky. from this point of view, crt has famously shown how a naive notion of race may lead to extremely controversial consequences. the well-known case of mashpee tribe v. town of mashpee24 provides an illustrative example. the massachusetts mashpee tribe sued under the indian non-intercourse act of 1970.25 the defendant, the town of mashpee, denied that the mashpee people could deem themselves a tribe at all. the mashpee people were therefore obligated to provide evidence of their tribal status. eventually, the court decided to base its criteria for jury instructions on those stated by a supreme court declaration at the beginning of the century in montoya v. united states. in montoya, the court said: ―by a ‗tribe‘ we understand a body of indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory. . . .‖26 in order to be acknowledged as a tribe, the mashpee people had to meet these criteria and, because they were unsuccessful, they were denied recognition as a 19 w.e.b. du bois, the conservation of races, the american negro academy, occasional papers no. 2 (1897), available at http://www.gutenberg.org/catalog/world/readfile?fk_files=1564800. 20 lucius t. outlaw, jr., on race and philosophy 6 (1996). 21 see generally johann friedrich blumenbach, on the natural variety of mankind (1775). 22 michael d. biddiss, prophecy and pragmatism: gobineau‘s confrontation with tocqueville, 13 hist. j. 611, 631 (1970). 23 ―8. è necessario fare una distinzione fra i mediterranei d‘europa occidentale da una parte, gli orientali e gli africani dall‘altra; 9. gli ebrei non appartengono alla razza italiana; 10. i caratteri fisici e psicologici puramente europe i degli italiani non devono essere alterati in nessun modo.‖ 1 la difesa della razza 1, aug. 5, 1938. (translation available at http://users.dickinson.edu/~rhyne/232/nine/racistscientists.html: 8. it is necessary to make a clear distinction between the european (western) mediterraneans on one side and the eastern [mediterraneans] and the africans on the other.; 9. jews do not belong to the italian race.; the purely european physical and psychological characteristics ought not to be altered in any way.‖) 24 mashpee tribe v. new seabury corp., 592 f.2d 575 (1st cir. 1978). 25 25 u.s.c. § 177 (2006). 26 mashpee tribe, 592 f.2d at 582 (quoting montoya v. united states, 180 u.s. 261, 266 (1901)). see also gerald torres & kathryn milun, translating yonnondio by precedent and evidence: the mashpee indian case, 1990 duke l.j. 625, 62559 (1990). astrology and law vol. 2:2 272 tribe. the mashpee people argued that ―racial‖ blending does not dilute the tribal status. they supported this proposition by stating that the members of the tribe did not define themselves through racial types, but rather through community membership. white colonizers married mashpee women, and many of these women were indeed widows of warriors who had fought against british soldiers. also, fugitive slaves had found shelter among the mashpee people, and had married members of the tribe. ―in fact, the openness to outsiders who wished to become part of the tribe was part of the community values that contributed to tribal identity. the mashpee were being penalized . . . because they did not conform to the prevailing ‗racial‘ definition of community and society.‖27 mashpee mores override a merely biological notion of ―race.‖ the members of the tribe were less obsessed with the notion of blood purity than the white judges who did not understand the complexity of the issue. this case is instructive for many reasons. on the one hand, the notion of race seems to imply that races are discovered and studied, just like any biological species.28 under this theory, tribes can be identified based on racial criteria. on the other hand, race is an ascriptive category,29 and thus according to the mashpee people for whom racial blending does not dilute the tribal status, the theory is not properly reflective of the complexity of group formation. this is true in a general way and european scholars are, or should be, aware of the problem. both the nazi racial ideology and the ―one drop rule‖ turn into institutional devices that reinforce a racial ascription. both maintain the requisite burden for racial exclusion to a minimum—just one drop of blood from a different racial category is enough to exclude a member from a racial ascription. therefore, both ideologies stress the purity of the aryan and the white race respectively, and they effectively strip the target of the racial ascription of her or his full citizenship status. from the jewish point of view, to be jewish requires a jewish mother, but it takes much less to be classified as jewish from a nazi perspective. frau seidenman, for example, had her ears carefully checked for some sign of hebrew heritage, however distant it may have been.30 what is crucial here is the contrast between the strong claim of objectivity—―you are what you are‖—and the reality of a decision-making process that can revolve around completely arbitrary factors.31 people can decide to self-identify as a member of a specific racial group, while other people were, and still are, forced to accept the arbitrary ascription placed upon them (or denial of ascription) of another membership. the arbitrary factor embedded in a race-based notion of the political ―we‖ is therefore exposed.32 27 torres & milun, supra note 26, at 638-39. 28 there is a prima facie claim of objectivity in the very idea of race, which ideally forces the researcher to acknowledge the existence of an empirical reality: i.e., can we detect mashpee ―blood‖? ―the involuntary attribution of a racial identity is morally troubling not simply, or primarily, because it is involuntary but for other reasons. it is a fiction parading or functioning as a scientific fact.‖ amy gutmann, responding to racial injustice, in color conscious: the political morality of race 106, 168 (1996). 29 it is commonplace to remark that from a certain point on that america‘s citizens were allowed to freely check their most favored box, or even multiple boxes, when they were asked about their ―race‖ in the census forms. this sounds like a frank acknowledgment of the ascriptive meaning of the notion itself, as well as of its grounding in something far different from any biological background. see generally ian haney lópez, white by law: the legal construction of race (1996). 30 see generally andrzej szczypiorski, poczatek (1986). 31 any ―social construction‖ implies both a certain degree of violent, arbitrary decision—evidently incapable of demonstration—and a specific attempt to hide, neutralize, and finally overcome it. see elizabeth v. spelman, ―race‖ and the labor of identity, in racism and philosophy 202, 202-05 (susan e. babbitt & sue campbell eds., 1999). 32 it should be borne in mind that any political ―we‖ is but a cultural product, and that from this point of view the notion of race is not different from the notion of nationality or class, as with etienne balibar‘s ―ambiguous 2012 columbia journal of race and law 273 ii. equality and race crt scholars, therefore, have not only shed light on the legal structure and workings of the notion of race, but also, by so doing, have written texts that are relevant for the general subject of the (ever controversial) assumption of homogeneity that is implied in any legal-political entity. thus, there is a line of theoretical reasoning originating from crt scholarship that impacts jurisprudence in a fundamental and compelling way. while specific authors can be quoted as more relevant when a specific subject is at issue, as is always the case—and my own choice of quotations is, of course, itself quite arbitrary—it is also possible to argue that crt makes a real paradigm shift possible on at least some particular key issues. the notion of political and legal equality implied in our current (democratic) notion of the political whole, in particular, has morphed into a much more complex concept under crt‘s theoretical pressure. the first part of such a new narrative about equality that is offered by crt scholarship is relatively well-known. equality and inequality statements can be carried out at the beginning or the end of discourse on racial notions. equality as an ―input‖ means equality of starting points. this concept is nevertheless not truly precise. both chess and poker involve equality as an input. players get the same number of pieces in a game of chess and they get the same number of cards in poker. it is understood, however, that at the beginning of the game, the value of the pieces is exactly the same for the two players sitting at the chessboard, while the value of the cards in the hand dealt to each player may be quite different. it is also possible to introduce inequality based on race as an ―input‖ of racial discourse claiming, for instance, that a specific ―racial‖ group is intellectually or morally inferior to another one and then acting accordingly in the legal-political arena. equality or inequality as an output, on the other hand, is the result of a discourse and established policy about race; it is the goal. a similar analogy to chess and poker is useful to illustrate this concept. when we play, i will first distribute poker cards. then, i will act as if we are playing chess, in that, for that very short moment when our cards were covered in front of us on the green table, equality of ―opportunities‖ existed between us. that the rules of the game must be poker rules has not, and cannot have ever been, the subject of any negotiation. that is, human beings are situated political beings. now you, quite literally, have to play the cards that you have been dealt. one can introduce racist inequality as an output by claiming that the game (for instance, access to a law school) is and should be colorblind (by a denial of affirmative action) when race-related inequalities are already present, and effectively change the situation of the ―players.‖ now from a conceptual point of view, following crt, inequality at the input and at the output are simply two sides of the same coin.33 input racism needs therefore to affirm itself. input racism must affirm the relevance of racerelated differences, because otherwise it will contradict its very logic no matter what science and reason can teach us. (such a racist discourse is typically brutal and shameless.) on the other hand, output racism needs, from the point of view of its inner logic, to deny itself; that is, it must deny the relevance of racerelated differences. overlooking races can therefore be another way, the other way, to generate a racist discourse. (such a racist discourse is typically articulate and confident.) input racism is first and foremost about relevant human differences, and such differences are taken as an input that calls for legal consequences, like discrimination. output racism is about denying the relevance of such differences, and the outcome of such a denial is a legal system and/or a social order where racial discrimination can flourish. identities.‖ see generally etienne balibar & immanuel wallerstein, race, nation, class: ambiguous identities (1991). 33 i deliberately used neutral expressions like ―input equality‖ or ―output equality‖ instead of talking about equality of opportunities, of starting points, institutional racism, and so on, in order to stress this point. astrology and law vol. 2:2 274 as a result, some may believe that input racism is for the ―redneck.‖ output racism seems to be more socially acceptable, especially among supporters of the ―colorblind‖ approach, who conceptualize races as if they were zodiac signs. we should not discriminate virgos against pisces, but of course it would be bad to discriminate between leos and taureans, too. just as we should not discriminate against african americans in order to support white supremacy, it would be equally biased to discriminate against whites in order to grant undeserved privileges to black people. races, however, are far from being similar to zodiac signs. the latter are conceived as being inherently equal. they are tiles of a specific mosaic; they are a set of random possibilities of equal value. you can have a favorite color or a favorite zodiac sign, but you cannot really claim that green is more beautiful than red, or the other way around. the social construction of races, however, ensures that races are distinguished in the same fashion as one person claiming that one color is more beautiful than another. as crt taught to a reluctant audience, the one-drop rule, for example, implies the purity of the white race, and serves as a prelude to the notion of a blood aristocracy.34 by contrast, the notion of the ―black race‖ has been carefully built, both in terms of social norm and legal jurisprudence, to ensure the subjugation of people identified as black and this construction has therefore preserved the idea of white supremacy. black and white are neither two ―colors‖ nor two ―zodiac signs.‖ segregated schools were not merely certain schools for whites and certain schools for blacks: they were richer, nicer, more modern and efficient schools for white students; and poorer, older, less attractive schools for blacks. separate train cars for blacks and for whites were not meant to forbid americans of caucasian blood to sit in a train car reserved for african americans, but to ensure that blacks would not ride in cars reserved for whites. if racial groups are conceived as zodiac signs, which are neutral as far as their comparative value is concerned, it also becomes possible to conceive of a category of ―reverse racism,‖ which is really not ―reverse‖ at all. since racism means a deviation from a universal norm of objectivity, it can be practiced by anyone, and anyone can be its victim, regardless of his or her particular historical circumstances or power relation.‖35 accordingly, as dworkin summarizes the view that he is famously fighting against, ―[r]everse discrimination . . . is . . . wrong because distinctions of race are inherently unjust.‖36 ―particular historical circumstances‖ and ―power relations,‖ however, are not erudite details or sociological trivia—they constitute races per se, so that there is nothing neutral in a racial typology. even if races are perceived as zodiac signs, as formal characters assigned by casting astrological lots or by genetic lottery, ―a judge may advocate the importance of racial equality while arriving at a decision detrimental to black americans.‖37 an apparently reasonable jurisprudence seems to revolve around a pseudo-scientific array of notions (such as ―neutral‖ races) that lack any sound epistemic ground. colorblindness ideology seems, at best, an example of the fallacy of metabasis eis allo genos: a fallacious leap of a definition from one category to another. such a fallacy is, of course, extremely instructive from a legal-philosophical point of 34 neil gotanda stresses how racial identity ascription works in the united states quite differently than in other cultural environments; the legally acknowledged ―one drop law‖ was a uniquely american phenomenon. his celebrated paper ends with a proposal: the united states should have the same attitude toward race that it already has toward religion—any establishment should be forbidden. assimilation, like color-blindness, is not a conquest: it is a loss, a diminished diversity, a cultural genocide. see neil gotanda, a critique of ―our constitution is color-blind‖, 44 stan. l. rev. 1 (1991). 35 peller, supra note 12 at 773. 36 ronald dworkin, taking rights seriously 224 (1977). 37 derrick bell, racial realism, 24 conn. l. rev. 363, 376 (1992). 2012 columbia journal of race and law 275 view, even for those who are not directly interested in the relationship between law and race, because it impacts our general notion of equality. inequality can therefore creep into the legal system in an interesting way: without trumpeting about inequality at all, but bragging all the time about equal concern and respect. a general law that forbids both the poor and the rich from sleeping under bridges only revolves around an input notion of equality.38 at the output, only poor people will suffer because rich people do not often need to sleep in any place that is not a comfortable bed. output equality is now the focus and ―[a]s in the old saw about the two horses given ‗equal‘ opportunity to run a race, but one of whom has a stone in its shoe, the failure to take into account history and context can radically alter whether mere neutrality can be deemed just.‖39 it is possible, of course, to take colorblindness seriously—to consistently act as if we truly want to get rid of the notion of race and to thus make it truly invisible. we could, let me perhaps whimsically imagine, also enforce a legal disposition according to which procreative weddings can be celebrated only between members of different racial groups. since there are so many suitable partners in every racial group, the compression of individual freedom is, all in all, minimal. on the other hand, the valuable outcomes of such a statute are huge: old wounds will be healed, racial hatred will slowly disappear, and so on. we need to care for the feelings of those who do not want to fall in love with a suitable partner, that is, a partner who does not belong to his or her same racial group. racist feelings do not deserve any dworkinian equal respect and consideration. those who are so unlucky—or lacking in self-control—as to fall in love with a partner belonging to his or her same racial group will be, of course, allowed to adopt children. whoever thinks that colorblindness is a rational value should support such a law as it would result in huge and certain social advancement in exchange for a comparatively minimal restriction of freedom. human beings will be colorblind because colors will quickly not be visible at all. people who will dwell in this future will not conceive of themselves as color blind—precisely because they will be colorblind. there would no longer exist any pure and detectable race.40 if colorblindness supporters feel uncomfortable with this imagined law, they may eventually understand that individual freedom is more valuable than any concept of input equality. they therefore believe that the politics of race that radiate from the pages of most crt authors—with the focus on output equality, through respect and emphasis on diversity as a value, recognizing the legal impact that diversity should have—are attempts of these authors to support the very same kind of freedom valued by the supporters of colorblindness.41 therefore, the focus on output equality sheds light on some 38 for example, the use of powdered cocaine is a crime which is, as a general rule, punished in a much more lenient way than crack cocaine, which correlates with racial disparities in those who are prosecuted for the use of powdered and crack cocaine. see kendall thomas, racial justice: moral or political, in looking back at law‘s century 78 (austin sarat et al. eds., 2002). 39 patricia j. williams, metro broadcasting, inc. v. fcc: regrouping in singular times, 104 harv. l. rev. 525, 544 (1990). 40 see, e.g., thomas chatterton williams, op-ed., as black as we wish to be, n.y. times, mar. 18, 2012, at sr5. 41 ―race‖ implies taxonomy. it is, first and foremost, a subdivision within a larger group of beings. race is therefore, as it were, a plural notion. if there were just one race, there would be no race at all, because it would not be perceived as a race. the inner logic of the very notion of race must take for granted a plurality of races – so much is obvious. the inner logic of the notion of race, nevertheless, is more complex. a category can imply a constitutive pluralism without necessarily generating a hierarchy. friendship implies pluralism: to be friends, it takes at least two people. there are terms and notions that do imply a hierarchy, like that of ―one‘s‖ baseball team. from the point of view of the baseball team supporter, in order to be a baseball team supporter you need more than a plurality of baseball teams. you must accord a special status to your team. this special status has no conceptual linkage with any ―natural‖ factor — we do not necessarily support the team of the city where we were born, for instance, or where we live. hard astrology and law vol. 2:2 276 crucial theoretical aspects of our homogeneity assumptions and their relative value. in order to better understand how crt scholarship impacted the traditional, liberal notion of equality, it is nevertheless necessary to take a further step in the analysis. iii. further equalities42 some years ago, jeremy waldron distinguished basic equality, the notion according to which human beings are equal ―in some fundamental and compelling sense,‖ from equality ―as a policy aim.‖ waldron‘s idea is that we need a notion of basic equality to endorse our egalitarian aims, and he stresses that while much has been written about equality, modern literature deals far less with the background idea that humans are, fundamentally, one another‘s equals.43 if i believe in the basic equality of all human beings, for example, i shall likely be ready to fight for the civil rights of subjugated minorities, like giambattista vico‘s famuli (the plebeians) seem ready to fight for their equal rights while realizing that patricians did not come from heaven after all. it can be preached that people of color are equal to whites in a fundamental and compelling sense. if some kind of basic equality based, for example, on a religiously inspired natural law, is assumed as a premise, blacks and whites should therefore not be discriminated against by the law, or by public policies. this is equality as an aim. now, for the sake of the argument, let us suppose that the average score of minority students on admission tests for law schools are consistently lower than that of white students. 44 under such circumstances we have a fundamental case where there is a difference after all. let us suppose further that the students who belong to a racial minority, once adopted by richer white british families, have scores as high as those of white american students. it would seem as though the right kind of toys, entertainment, play time, stimuli, the comfort of a beautiful home, the education that money can provide, security, and the warmth of a safe neighborhood, can make a difference in that plastic organ, contrasts between team supporters of one city‘s two teams are commonplace. membership in one group of team supporters or the other may be chosen for the most volatile reasons. from that point on, your team has a special status, and you cannot really enjoy a game if you watch it in an emotionally detached way. as italian soccer fans proverbially say, ―you can change your car and your girlfriend, but you cannot change either your mother or your team.‖ there are therefore notions whose inner logic implies a hierarchy. the notion of race (from the point of view of its inner logic) is not only essentially plural and it is not only ascriptive, but it always entails the possibility of a specific hierarchy. this is what the astrology of liberal colorblindness jurisprudence fails to see. 42 part iv reproduces a part of a paper on giambattista vico‘s work on the relationship of marriage and equality, which was published in december of 2011. gianfrancesco zanetti, equality and marriage in vico, 24 ratio juris 461, 463-64 (2011). 43 see jeremy waldron, god, locke, and equality: christian foundations in locke‘s political thought 1-3 (2002). ―so the distinction between basic equality and equality as an aim is fundamental to dworkin‘s work. yet dworkin has said next to nothing about the nature and grounding of the principle of equal respect.‖ id. 44 in the notorious, best-selling, and fundamentally flawed work of herrnstein and murray, the results of iq testing lead to some policy recommendations, like reducing immigration (because immigration could lower the average american iq) and halting affirmative action. furthermore, a relationship is established between the lower score in iq (linked by the authors to anti-social behavior tests of americans and genetic factors). see generally richard j. herrnstein & charles murray, the bell curve: intelligence and class structure in american life (1994). the book has been debunked by severe scientific criticism. see, e.g., noam chomsky, i.q. tests: building blocks for the new class system, ramparts magazine, july 1972, at 24-30 (arguing against herrnstein‘s approach even prior to the bell curve‘s publication); james j. heckman, lessons from the bell curve, 103 j. pol. econ. 1091 (1995) (listing sharp criticisms of the authors‘ statistical methods and notably written by a winner of the nobel prize in economics); stephen j. gould, the mismeasure of man (2d ed. 1996). new york times columnist bob herbert famously excoriated the book as ―a scabrous piece of racial pornography masquerading as serious scholarship.‖ bob herbert, in america; throwing a curve, n.y. times, oct. 26, 1994, http://www.nytimes.com/1994/10/26/opinion/in-americathrowing-a-curve.html. 2012 columbia journal of race and law 277 the human brain.45 fighting for equality, that is, equality as an aim, and finding ways to make it possible, for example, through affirmative action programs that result in more rich lawyers of color, rich doctors of color, and so on, becomes therefore a necessary step in order to be able to create and to state a basic equality between groups. the sons and daughters of these lawyers, doctors, and so on, will thus attain higher scores. therefore, first comes equality as a practice, for example, in egalitarian policies. the muchvaunted basic equality, pace waldron, becomes the outcome. equality as a practice, the fighting for equality, is the prius; basic equality, the posterius. once black families are actually in equal social status and economic power, then they become equal ―in a fundamental and compelling sense,‖ and that can include aspects of so-called bio-politics. it should be noted that there is no logical contradiction between the two alternative conceptual itineraries, from basic equality to equality as an aim, from equality as an aim to basic equality. it should also be noted that there are, however, interesting differences. for example, it is much easier to defend affirmative action policies from the latter point of view (from equality as an aim to basic equality) rather than from the former one (from basic equality to equality as an aim). by contrast, the trajectory of basic equality to equality as an aim seems quite ready to imply a colorblind ideology. iv. final remarks the very possibility of the counter-intuitive itinerary from equality as a goal to basic equality, besides the traditional one going in the opposite direction, dramatically alters the general argumentative meaning of the standard (liberal) notion of equality. as far as the notion of equality is concerned, therefore, crt is not just academic politics. crt offers real theoretical achievements from the very moment when it exposes a sanguine primacy of the ―political‖ (equality as an aim, or equality as a practice) over the ―theoretical‖ (basic equality). crt is also not redundant, because the more complex notion of equality that is involved in the acknowledgement of the counter-intuitive itinerary from equality as a goal to basic equality is not to be captured in a traditionally liberal system of thought. while the traditional liberal system of thought can be effective at claiming the equality of all human beings (usually with some exceptions), it does not seem particularly interested in making men equal in the first place, which is a premise of crt.46 45 ―if i.q. differences are indeed largely environmental, what might help eliminate group disparities? the most dramatic results come from adoption. when poor children are adopted by upper-middle-class families, they show an i.q. gain of 12 to 16 points. . . . the challenge is to find educational programs that are as effective as adoption in raising i.q.‖ jim holt, get smart, n.y. times, mar. 27, 2009, at br9, available at http://www.nytimes.com/2009/03/29/books/review/holt-t.html. see also richard e. nisbett, intelligence and how to get it: why school and culture count (2009). 46 this latter enterprise does not seem consistent with a religious tradition of natural law. the first advice to reach equality, indeed, came from the serpent in genesis 3:5, eritis sicut deus, scientes bonum ac malem, the words beloved by goethe‘s mephistopheles. the reasonable words that always suggest not to try action and egalitarian struggle are those spoken by abdiel to satan in paradise lost by milton: unjustly thou deprav‘st it with the name of servitude to serve whom god ordains, or nature; god and nature bids the same, when he who rules is worthiest, and excels them whom he governs. this is servitude to serve the unwise, or him who hath rebelled against his worthier, as thine now serve thee, thyself not free, but to thyself enthralled. astrology and law vol. 2:2 278 a notion of equality that implies basic equality as the ever-fundamental prius and as a necessary first link in any possible conceptual chain of thoughts about equality, runs the risk of mistaking social (and racial) groups for zodiac signs. under such circumstances, humans are conceived from an essentialist point of view, for example, endowed with a specific ―nature.‖ this is not too bad, because the power of stars and planets is not strong enough to prevent liberal thinkers from deftly elaborating a notion of equality that can and will include them in some fundamental and compelling way. in this optimistic narrative, the destruction of irrational prejudices against that given zodiac sign will eventually trigger equality policies. races, however, are not standard groups that are used to classify human beings in a neutral way. if races had the same status as such standard groups can have, then the prejudice and discrimination that develops against one specific group would be the random outcome of a contingent moral lapse of the other groups. prejudice and discrimination would have no necessary link with that group. prejudice and discrimination, however, were specifically built into the social, cultural, and legal concept of ―race.‖ they do not come as a surprising, unwelcome event, due to the moral weakness of human beings. unfortunately, domination and oppression can and do ―make‖ groups of humans basically unequal.47 crt authors seem therefore to be, from this point of view, more pessimistic than their liberal counterparts. the reassuring astrological pattern, on the other hand, revolves around a diversity that allegedly flourishes among inherently equal groups. that pattern, however, is no longer truly an option after crt. such is the impact of crt contributions on the western notion of equality. equality as a practice—the practice of making men equal—is therefore also meant to separate again astrology and race, when legal reasoning is at stake. we would not trust a surgeon who let astrology impact his general view about our health condition; it is equally unwise to let this happen in the legal arena. john milton, paradise lost, book 6, lines 174-81 (1667), available at http://www.dartmouth.edu/~milton/reading_room/pl/book_6/index.shtml. 47 in the history of western philosophy, however, this is the classic position of giambattista vico. see giambattista vico, new science (david marsh trans., penguin 1999) (1744). see also zanetti, supra note 42, at 46170. the ―making‖ of inequalities can take place on the institutional and cultural level; it will not be less real. id. 2-severin 2013 columbia journal of race and law 215 we built this city: the legality of community benefit agreements for big box construction under title vii and the equal protection clause chadé severin* community groups have begun to employ community benefit agreements (cbas) to combat the legacy of discrimination and segregation in the construction industry. the u.s. government as well as state and city governments have implemented various plans since the 1960s to try to eradicate discrimination and segregation with a varied pattern of success. in light of the supreme court’s decisions in adarand v. pena and city of richmond v. j.a. croson, it is nearly impossible for a governmental entity to impose a hiring quota or percentage for minority groups. therefore, without state intervention, the best way for communities to secure adequate opportunities may be to negotiate with the developers directly. this is where cbas come in. cbas, however, can take a couple of forms: private-private between private community groups and private developers or private-public between a private developer and some state actor. cbas in each category may also have either geography-based hiring criteria, or race-based. this note examines seven cbas that fit under these different categories and measures them against the supreme court’s title vii and equal protection jurisprudence. this note ultimately seeks to suggest strategies for making cbas successful against possible legal challenges. i. introduction…………………………………………………………… 217 ii. background……………………………………………………………… 218 a. unemployment for minorities in construction and service sectors. 218 b. past legislative and judicial efforts to end discrimination………. 218 1. philadelphia plan…………………………………………….. 218 2. hometown approach………………………………………... 220 * j.d. 2013, columbia law school. 216 we built this city vol. 3:2 3. title vii lawsuits……………………………………………. 220 c. changing tides: croson and adarand……………………………… 221 iii. a modern hometown approach with legal teeth: community benefit agreements……………………………… 224 a. private-private agreements with first source offices, targeted hiring and quotas based on geography and income……………... 225 1. bayview cba…………………………………………………. 226 2. staples cba…………………………………………………... 227 b. private-public with hiring quotas based on geography………….. 228 1. cherokee-gates cba………………………………………… 228 2. lax project cba…………………………………………….. 229 c. private-private and private-public with hiring based on race or gender………………………………………………………………… 229 1. atlantic yards………………………………………………… 229 2. milwaukee park east redevelopment area………………… 230 3. christina avenue composting facility cba……………….. 231 iv. potential legal challenges to cbas and how to avoid these challenges…………………………………………… 232 a. title vii challenges…………………………………………………. 232 1. what are affirmative action plans and do cbas meet their criteria?........................................................................ 232 2. voluntarily negotiated affirmative action plans…………... 233 3. disparate impact liability…………………………………… 237 b. constitutional challenges to race-based cbas under the equal protection clause……………………………………………… 239 1. government as signer of or party to the agreement……….. 239 2. state action doctrine………………………………………… 239 2013 columbia journal of race and law 217 3. analysis of the state action doctrine as applied to atlantic yards………………………………………………………….. 244 4. would a race-based cba withstand strict scrutiny?.......... 246 v. conclusion………………………………………………………………. 249 i. introduction as of december 2011, african american unemployment was twice that of white americans.1 even before the great recession, african american unemployment rates were typically twice that of white americans.2 this disparity cannot be traced to one or even a few main causes. but the construction industry in particular has erected some of the most structural barriers to employment for minorities. within the industry, unions, although generally in decline throughout the country, remain a crucial source of training, hiring, and bargaining power between contractors and developers. but the unions often become exclusive clubs, impenetrable to minorities seeking construction work. furthermore, legislation aimed at reducing the employment disparity has pitted governments and courts, acting on behalf of minorities, against the unions and further hardened their intransigence. in addition to these employment barriers, minorities face increasing economic inequality within their own communities. urban gentrification can increase the polarization between low-wage and highwage jobs within their communities.3 current scholarship in urban politics and development shows that developers are essential to growth and economic success in cities, but also that urban development has exacerbated racial, economic, and geographic inequities.4 to resolve this tension, some community groups have joined together to create community benefits agreements (“cbas”)—legally binding agreements between a coalition of community-based organizations and developers or governmental bodies. the community groups pledge support for the development in return for, inter alia, priority in jobs, low-income housing, and living wages.5 cbas are relatively new and show incredible promise. however, there is little legal scholarship on their legal strengths and weaknesses, especially in light of historical efforts to reduce discrimination 1 statistics are seasonally adjusted. see table a-2. employment status of the civilian population by race, sex, and age, bureau of labor statistics, http://www.bls.gov/news.release/empsit.t02.htm (last visited mar. 31, 2013). 2 christian e. weller & jaryn fields, the black and white labor gap in america, ctr. for american progress (july 25, 2011), http://www.americanprogress.org/issues/labor/report/2011/07/25/9992/the-black-and-white-laborgap-in-america. 3 virginia parks & dorian warren, the politics and practice of economic justice: community benefits agreements as a tactic of the new accountable development movement, 17 j. cmty. practice 88, 89 (2009). for the purposes of this note, i use “urban gentrification” to mean an influx of capital into a neighborhood that can improve the quality of residential and commercial areas of that neighborhood, but also displace low-income residents that previously resided there. for a more comprehensive overview of gentrification, see maureen kennedy & paul leonard, dealing with neighborhood change: a primer on gentrification and policy choices, the brookings institute (apr. 2001), http://www.brookings.edu/~/media/research/files/reports/2001/4/metropolitanpolicy/gentrification. 4 parks & warren, supra note 3, at 91. 5 id. at 89. 218 we built this city vol. 3:2 against minorities in construction and development.6 this note will examine some current cbas in the context of the legal history of integration within urban minority communities, particularly within the construction trade. part ii will outline historical efforts to integrate the construction industry, starting with the philadelphia plan in 1969 and ending with the supreme court decisions of city of richmond v. j.a. croson and adarand construction v. pena in 1988 and 1995, respectively. part iii will examine the employment provisions of a few cbas primarily negotiated by groups affiliated with the partnerships for working families.7 part iv will then analyze potential legal challenges to the cbas and how groups can best structure these agreements to withstand or avoid such challenges. ii. background a. unemployment for minorities in construction and service sectors although the construction industry is a particularly salient example of employment discrimination against african americans, it certainly is not the only industry in which such discrimination has occurred. cbas include provisions for permanent hiring in retail and service sector positions within the new project area. discrimination in the service sector, although less historically documented and analyzed, is nevertheless real and also relevant to cbas.8 this note uses the construction industry to contextualize the history and evolution of title vii and equal protection analysis, but that analysis extends to other industries as well. b. past legislative and judicial efforts to end discrimination 1. philadelphia plan after president johnson signed the civil rights act of 1964, the office of federal contract compliance (ofcc) led the effort to reduce discrimination among private companies with government contracts. the construction industry was one of the hardest to regulate because the unions wielded so 6 there are, however, many articles analyzing different aspects of cbas. see, e.g., vicki been, community benefits agreements: a new local government tool or another variation on the exactions theme?, 77 u. chi. l. rev. 5 (2010) (examining the benefits and drawbacks of using cbas in the land use approval process); michael l. nadler, the constitutionality of community benefits agreements: addressing the exactions problem, 43 urb. law. 587 (2011) (analyzing the potential of cbas to violate the takings clause); christine a fazio & judith wallace, legal and policy issues related to community benefits agreements, 21 fordham envtl. l. rev. 543 (2010) (broadly analyzing the benefits and drawbacks to cbas, particularly fairness to communities, developers, and taxpayers and the question of whether developers can negotiate concessions outside of local law); patricia e. salkin & amy lavine, community benefits agreements and comprehensive planning: balancing community empowerment and the police power, 18 j.l. & pol’y 157 (2009) (analyzing the effects of cbas on comprehensive municipal urban planning); debra bechtel, forming entities to negotiate community benefits agreements, 17 wtr j. affordable housing & community dev. l. 145 (2008) (discussing options for creating corporate entities to negotiate cbas to increase the enforceability and credibility of cbas). 7 the cbas negotiated by groups within the partnership for working families represent only a percentage of the total cbas in the united states, but they are typically the most successful. parks & warren refer to these as “strong” cbas, as compared to “weak” cbas negotiated primarily in new york and new jersey. parks & warren, supra note 3, at 91–92. 8 for a discussion of racial discrimination in the service sector, see generally devah pager, bruce western, & david pedulla, employment discrimination and the changing landscape of low-wage labor markets, 1 u. chi. legal f. 317 (2009). 2013 columbia journal of race and law 219 much power.9 each union determined which employees would work on particular projects, and selections were usually based on union membership and seniority.10 the unions also limited their membership to ensure that all members had sufficient work opportunities and had strict qualification requirements that usually precluded african americans from joining in the first place.11 without sufficient apprenticeship or journeyman experience, african americans could neither get into unions nor obtain sufficient seniority to be contracted out for lucrative construction work. because of these practices, the ofcc sought to enforce antidiscrimination in construction contracts through experimental “special area plans” in st. louis, san francisco, cleveland, and philadelphia throughout 1966 and 1967.12 the st. louis and san francisco plans loosely required contractors to work with unions to develop and provide equal opportunities for minority groups in employment and in journeyman and apprenticeship programs.13 though the contractors drafted detailed statements of their plans to cooperate with these requirements, the programs never showed actual improvement in minority placement rates.14 after the failures of the st. louis and san francisco plans, a group of regional federal officials developed the philadelphia plan in november 1967. the plan created a system to review unions’ affirmative action programs before the government awarded them contracts. the plan also established a numbers-based model for these programs by compiling basic information on racial population ratios, the construction workforce, sources of minority recruitment, and the expected amount of construction in a particular area.15 however, the comptroller general struck down this holistic approach for being too vague. he stated that the plan was defective because the basis for approval or disapproval of the affirmative action plans was unclear.16 the nixon administration revised the plan in 1969 by giving 9 john david skrentny, the ironies of affirmative action 136 (1996). 10 id. 11 damon stetson, negro groups step up militancy in drive to join building unions, n.y. times, aug. 28, 1969, at 27 available at http://select.nytimes.com/gst/abstract.html?res=fa0717fe3b551b7b93caab1783d85f4d8685f9. stetson also mentions that when civil rights groups demanded that the building trade unions hire more african americans as journeymen, a union official said, “would you want your house wired by an amateur?” id. see also peter millones, labor; building trades say, ‘enter, negroes,’ n.y. times, feb. 18, 1968, at e4, available at http://select.nytimes.com/gst/abstract.html?res=f10817fc3f5e1a7b93caa81789d85f4c8685f9 (describing an example of discrimination when a group of african american youths in new york scored extremely high in a test for a sheet metal apprenticeship program, but the union nevertheless tossed out their scores and delayed their entry into the program); skrentny, supra note 9, at 197–98 (discussing the building trades’ contestation of the allegations of discrimination and quoting renowned labor union leader george meany’s assertion that “the building trades [are] being singled out as being . . . the last bastion of discrimination. . . . [t]his is an amazing statement, when you figure how small participation of negroes . . . is in, for instance, the banks in this country, the press, on the payroll for newspapers and communications media”); david r. jones, u.s. aides will discuss bias with officials of building trades, n.y. times, june 18, 1967, at 32, available at http://select.nytimes.com/gst/abstract.html?res= fb0915f73b5b1a7b93caa8178dd85f438685f9 (regardless of whether the discrimination was intentional, the government sought to increase minority membership in building trade unions first through dialogue and eventually through government-mandated action). 12 skrentny, supra note 9, at 136. 13 id. at 136–37. 14 id. 15 id. at 137. 16 id. at 138. 220 we built this city vol. 3:2 contractors specific percentage targets for minority employees.17 this revision sought simultaneously to remedy the shortcomings of the ambiguous 1967 plan and to avoid the argument that the “targets” were quotas, which title vii forbade.18 the solicitor of labor even tried to justify the targets by analogizing the plan to permissible school integration plans that also had numerical goals.19 by revising the plan, nixon emphasized that he specifically intended to target the discriminatory practices of the building trade unions, stating, “[w]e cannot have construction unions which deny the right of all americans to have those positions. america needs more construction workers, and . . . all americans are entitled to an equal right to be a member of a union.”20 despite vicious opposition to the plan from the building trade unions and other contractors, the third circuit upheld the validity of the plan. the supreme court denied certiorari, implicitly sanctioning the third circuit’s holding.21 2. hometown approach before officially revising the philadelphia plan, nixon also sanctioned another plan, called the “hometown approach,” to integrate the construction trade and improve minority recruitment.22 under the hometown approach, the parties voluntarily negotiated agreements with each other. for example, through private negotiation, the unions willingly accepted the same racial quotas they had rallied against under the philadelphia plan. this approach produced more actual integration than the philadelphia plan because employers had to accept minority apprentices into the unions as “trainees.”23 in addition, the hometown approach made sure that minorities were direct signatories on these agreements, which increased the likelihood of successful implementation. 3. title vii lawsuits 17 the plan required that bidders on any federal or federally assisted construction contract for projects exceeding $500,000 must submit an acceptable affirmative action program with specific goals for employing minority employees in specific skilled crafts. the executive order applied to the five-county philadelphia area. the department of labor held public hearings in philadelphia and determined various employment ranges for minority workers, including five to nine percent for ironworkers in 1970, eleven to fifteen percent in 1971, sixteen to twenty percent in 1972, and twenty-two to twenty-six percent in 1973. contractors ass’n of e. pa. v. sec’y of labor, 442 f.2d 159, 163–64 (3d cir. 1971) cert. denied, 404 u.s. 854 (1971). 18 id. at 172–73. specifically, if a contractor failed to hire within the range of targeted percentage of minority employees, it would have to demonstrate “good faith” that it had tried as hard as possible to achieve that range. if the contractor failed to convince the ofcc of its good faith, the contract could be canceled or denied. id. for a more indepth discussion of the political debate surrounding the philadelphia plan, see skrentny, supra note 9, at 177–221. 19 skrentny, supra note 9, at 195. 20 id. at 197. 21 contractors ass’n, 442 f.2d at 159. 22 william b. gould, the seattle building trades order: the first comprehensive relief against employment discrimination in the construction industry, 26 stan. l. rev. 773, 778 (1974). 23 william b. gould, black workers in white unions 302 (1977). becoming a trainee would place minorities on a track to get the coveted journeyman’s card, which would give them relative economic security in the area of the union’s jurisdiction. however, unions could satisfy the plan by hiring non-union minority workers, thereby failing to allow minorities to get footholds into seniority within the unions. see also paul good, the bricks and mortar of racism, n.y. times, may 12, 1972, at sm24, available at http://select.nytimes.com/gst/abstract.html?res= fa0c15fa3f5f117b93c3ab178ed85f468785f9 (quoting curtis alexander, a black with a journeyman or union card that he obtained because of federally funded job training, who said that without such a card, “[y]ou get no respect.”). 2013 columbia journal of race and law 221 in addition to the philadelphia plan and the hometown approach, changes within the courts directly affected integration within the unions. first, federal rule of civil procedure 23 was amended in 1966, making it easier for lawyers to represent large classes of individual minority construction and trade workers.24 this development encouraged civil rights groups to file many more title vii lawsuits against the unions’ discriminatory practices. by 1974, the unions had suffered multiple defeats in federal courts and began to fear that more lawsuits would threaten their solvency.25 fear of future defeats led the unions to sign consent decrees with various companies and the federal government to provide black workers financial compensation or institute affirmative action programs.26 the increasing number of title vii cases also required more federal judges; the appellate bench increased by forty-three percent during the 1960s and thirty-six percent during the 1970s.27 finally, federal courts—including the supreme court—expansively interpreted the provisions of title vii to support affirmative action and dismantle seniority systems, job requirements, or entrance examinations ostensibly targeted at entrenching the segregated status quo.28 the philadelphia plan, hometown approaches, and title vii lawsuits were powerful foes to the forces of union discrimination. however, their momentum was relatively short-lived. by the 1970s, conservatives began to combat all aspects of the civil rights groups’ successes, with powerful results.29 c. changing tides: croson and adarand the 1980s and 1990s brought a more conservative judicial bench that significantly constrained the integration victories of the prior two decades. the supreme court decided to hear two cases—city of 24 class-action litigation represented only a few dozen cases in 1965 and more than a thousand cases a decade later. paul frymer, black and blue: african americans, the labor movement and the decline of the democratic party 85 (2008). 25 id. at 70–71. 26 specifically, the united steelworkers of america signed a consent decree with nine steel companies and the federal government to pay 55,000 black workers who had filed a class action suit against the union. id. peter schoemann, president of the building trades in 1968, gave a speech supporting affirmative action programs, but only out of fear of pattern-or-practice title vii suits. “‘[w]e carried the fight just about as far as we could.’ but to avoid further lawsuits, ‘the building trades need a single policy in this area.’” id. at 70. another cause of the expansion of consent decrees was a change in how the courts used rule 53, which provided for special masters. courts let the masters play a more expansive role in enforcing consent agreements between civil rights groups and unions. the special masters directly supervised and reported on unions’ affirmative action programs and enabled courts to invoke fines against unions that did not comply. through this program, judges effectively replaced the eeoc and dol as agencies overseeing enforcement of integration, which frymer argues often went beyond legislative intent. id. at 85–86. 27 id. at 86. the federal magistrates act of 1968 allowed federal judges to appoint magistrates whenever necessary to help them with their caseload. 28 id. at 87–88. see, e.g., griggs v. duke power co., 401 u.s. 424 (1971); united steelworkers of am. afl-cioclc v. weber, 443 u.s. 193 (1979); contractors ass’n of e. pa. v. sec’y of labor 442 f.2d 159 (3d cir. 1971); quarles v. philip morris, 279 f. supp. 505 (e.d. va. 1968). 29 frymer, supra note 24, at 94–95. conservatives started their own advocacy-driven law firms, targeted changes to the federal rules of civil procedure, and encouraged congress to pay more attention to and stay active in the process of legal rule making. congress also restricted attorney fee opportunities for lawyers bringing title vii lawsuits to reduce incentives to bring many cases with large damages. id. at 94–95. 222 we built this city vol. 3:2 richmond v. j.a. croson and adarand constructors, inc. v. pena30—in which statutes required general contractors to hire socially disadvantaged subcontractors for a specific monetary percentage of each total awarded contract. in croson, the city of richmond passed a local plan that required any general contractor that received a construction contract from the city to subcontract at least thirty percent of a contract’s value to qualifying minority business enterprises.31 the supreme court held that the program was unconstitutional under the equal protection clause because it awarded those contracts on the basis of race without showing a compelling state interest in doing so.32 although croson applied only to state and local programs,33 adarand required federal programs that considered race to undergo strict scrutiny as well.34 these decisions had a significant effect on state, local, and federal efforts to reduce discrimination in government contracting. by 2009, sixteen state and federal courts had applied strict scrutiny to affirmative action programs.35 twelve had invalidated programs under the equal protection 30 city of richmond v. j.a. croson co., 488 u.s. 469 (1989); adarand constructors, inc. v. pena, 515 u.s. 200 (1995). 31 croson, 488 u.s. at 469. richmond’s plan defined minority group members to be “blacks, spanish-speaking, orientals, indians, eskimos or aleuts.” croson, 488 u.s. at 477–78. richmond’s minority business utilization plan was similar to the federal public works employment act of 1977, which was the first federal act to require at least ten percent of every federal construction grant to be expended for “minority business enterprises.” pub. l. no. 95-28, tit. i, § 103, 91 stat. 116 (1977) (codified as amended at 42 u.s.c. § 6705 (2006)). 32 croson, 488 u.s. at 490–92. the supreme court evaluates whether state or federal legislation violates the equal protection clause by using different levels of judicial scrutiny. at a minimum, a statutory classification must be rationally related to a legitimate government purpose. classifications based on race or national origin, and classifications affecting fundamental rights, are given [strict] scrutiny. between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. clark v. jeter, 486 u.s. 456, 461 (1988) (internal citations omitted). before the court decided adarand and croson, it was implicitly understood that strict scrutiny only applied to legislation that discriminated on the basis of race, not to legislation that aimed to help minorities (also known as “benign racial discrimination”). adarand and croson clarified that any classification on the basis of race is cause to apply strict scrutiny. see mary j. reyburn, strict scrutiny across the board: the effect of adarand constructors, inc. v. pena on race-based affirmative action programs, 45 cath. u. l. rev. 1413, 1416 (1996). for a law to survive under strict scrutiny, the legislating government must show the legislation fulfills a “compelling governmental interest,” and the legislation is “narrowly tailored” to that interest. gratz v. bollinger, 539 u.s. 244, 270 (2003). 33 croson, 488 u.s. at 490 (“that congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the states and their political subdivisions are free to decide that such remedies are appropriate.”). 34 adarand, 515 u.s. at 200. adarand analyzed section 106(c) of the surface transportation and uniform relocation assistance act of 1987 as well as the small business act of 1953. the former offered states financial assistance with highway construction if the state gave ten percent of the amount to small businesses owned and controlled by socially and economically disadvantaged individuals, which was usually defined in terms of race. lynn ridegeway zehrt, a decade later: adarand and croson and the status of minority preferences in government contracting, 21 nat’l black l.j. 1, 5 (2009). 35 zehrt, supra note 34, at 2. 2013 columbia journal of race and law 223 clause. of the four that validated such programs, three focused primarily on federal affirmative action statutes in the highway construction industry, not on state or local development.36 the foregoing history demonstrates a clear pattern since at least the 1960s: integration in the construction industry has been cyclical, with booms and busts. the late 1960s saw tremendous momentum within the civil rights community and political establishment to integrate the construction unions. however, by the 1970s and 80s, political support had waned and those opposed to integration had obtained greater political strength. this change led in turn to a decline in enforcement of affirmative action programs and a slide back to pre-plan segregation. a more conservative judicial bench in the last twenty-five years has constrained the scope of state and federally mandated affirmative action programs with cases like croson and adarand. and current labor advocates must contend with big-box retailers like wal-mart, target, and costco. these retailers have a history of discriminating against minorities, offering low wages, imposing bad working conditions, and being staunchly anti-union.37 this state of affairs leaves a mystifying path for african american construction workers to follow: should they set their efforts toward integrating trade unions, which would increase their general bargaining power and wages for a larger number of jobs, or should they abstain from joining a union in the hope of obtaining nonunion work with large, anti-union employers?38 and, in light of supreme court jurisprudence on the legality of affirmative action programs both under title vii and the equal protection clause, what role should federal, state, or local governments play in this process? the next section examines how community groups have developed cbas as an innovative response to four major shifts in labor activism and urban development. first, union membership and political presence has declined precipitously in the last fifty years.39 second, a dramatic rise in the service sector (as compared to manufacturing) has increased the proportion of non-exportable jobs in urban areas. this rise should increase the bargaining power of labor groups and employees; however, a third major shift, the simultaneous rise of anti-union big-box retailers has served to undermine rather than 36 id. the only case that validated a program was in denver. i will explore these cases more in part iv, infra. 37 frymer, supra note 24, at 1–2. see also dan frosch, immigrants claim wal-mart fired them to provide jobs for local residents, n.y. times (feb. 8, 2010), http://www.nytimes.com/2010/02/09/us/09walmart.html; reuters, walmart settles lawsuit on hiring, n.y. times (feb. 20, 2009), http://www.nytimes.com/2009/02/21/business/21walmart.html (wal-mart settles lawsuit claiming it discriminated against african-americans in hiring for $17.5 million); target corp. to pay $500,000 for race discrimination, eeoc (dec. 10, 2007), http://eeoc.gov/eeoc/newsroom/release/12-10-07a.cfm; target corp. to pay $775,000 for racial harassment, eeoc (jan. 26, 2007), http://www.eeoc.gov/eeoc/newsroom/release/1-26-07.cfm; steven greenhouse, trying to overcome embarrassment, labor opens a drive to organize wal-mart, n.y. times (nov. 8, 2002), http://www.nytimes.com/2002/11/08/us/trying-to-overcome-embarrassment-labor-opens-a-drive-to-organize-walmart.html (stating that not one of wal-mart’s one million workers is a union member and that the retailer has crushed the only successful effort to organize a group of butchers that lasted a mere two weeks). 38 nor are these approaches necessarily mutually exclusive. for example, labor unions and local politicians in chicago got wal-mart to agree that in order to allow its stores into the city, they would have to be union-built. stephanie clifford, wal-mart gains in its wooing of chicago, n.y. times (june 24, 2010), http://www.nytimes.com/2010/06/25/business/25walmart.html. wal-mart reached the same deal with the building and construction trades council union in new york city, even though the project has yet to be approved. elizabeth a. harris, wal-mart skips council hearing as impact of stores is assailed, n.y. times (feb. 3, 2011), http://www.nytimes.com/2011/02/04/nyregion/04walmart.html. 39 scott l. cummings, law in the labor movement’s challenge to wal-mart: a case study of the inglewood site fight, 95 cal. l. rev. 1927, 1933 (2007). 224 we built this city vol. 3:2 encourage labor activism. finally, an increasingly conservative federal judiciary and a large number of judicial vacancies40 have made litigation a less-tenable option. as a result, cbas have become a hopeful and often successful shift for minorities from targeting union discrimination to targeting non-exportable industries and large retailers who seek to build in local areas.41 iii. a modern hometown approach with legal teeth: community benefit agreements cbas are contracts negotiated between prospective private developers and individuals or groups representing the affected community.42 they can also be contracts between private entities and the state.43 by negotiating cbas, community groups gain a developer’s promises to directly benefit the local community through means including affordable housing, employment provisions, public space, monitoring provisions, and potential remedies for breach.44 the developer gains the community’s support for the development, which in turn helps avoid costly delays or cancellation of the project.45 often the most important and politically salient features of cbas are their employment-related provisions, which promise to provide job access and job quality.46 many cbas have provisions for “targeted hiring programs,” which require that employers in a development promise to hire certain individuals through some combination of a tiered priority system, a “first source” office, or local job training programs.47 the individuals that usually benefit from the program are those harmed by the 40 as of march 31, 2013, there were eighty-four vacancies out of 874 total federal judgeships, representing almost ten percent of judgeships. federal judgeships, u.s. courts, http://www.uscourts.gov/judgesandjudgeships/federaljudgeships.aspx (last visited mar. 31, 2013); judicial vacancies, u.s. courts, http://www.uscourts.gov/judgesandjudgeships/judicialvacancies.aspx (last visited mar. 31, 2013). increased vacancies mean it is harder to get employment cases into and through the already-backlogged courts. 41 for a more thorough discussion of how localism is an effective alternative labor strategy to twentieth century federal union efforts, see cummings, supra note 39, at 1942–51. 42 julian gross, greg leroy & madeline janis-aparicio, community benefits agreements: making development projects accountable 9–10 (2002) (good jobs first & the california partnership for working families 2005), available at http://www.goodjobsfirst.org/sites/default/files/docs/pdf/cba2005final.pdf. julian gross, the director of the community benefits law center, also created a precise definition of a cba: “a cba is a legally binding contract (or set of related contracts), setting forth a range of community benefits regarding a development project, and resulting from substantial community involvement.” julian gross, community benefits agreements: definitions, values, and legal enforceability, 17 j. affordable housing 35, 37 (2008), available at http://www.forworkingfamilies.org/sites/pwf/files/publications/cbas_definitions_gross_2008.pdf. 43 see discussion infra part iii.b. 44 barbara bezdek, putting community equity in community development: resident equity participation in urban redevelopment, in law, property and society: affordable housing and public-private partnerships 93, 109 (robin paul malloy & nestor m. davison eds., 2009). 45 community benefits agreements, good jobs new york, http://www.goodjobsny.org/resourcestools/community-benefits-agreements (last visited may 3, 2013). 46 parks & warren, supra note 3, at 92. job access means both providing residents relevant training and getting residents into jobs, while job quality means that those jobs provide a decent, or even “living wage.” 47 gross, supra note 42, at 43. a “first source” office receives notice of job openings from employers, maintains contact with a variety of job training organizations to access their applicant pools, and refers qualified workers to employers. a first source office can benefit job training organizations and targeted individuals by giving them reliable access to information about job openings. it can help the targeted hiring program meet its goals. id. at 46. for a 2013 columbia journal of race and law 225 development in the first place: those whose jobs or homes are displaced by the development and residents of the neighborhoods around the development. but these programs often also target residents of low-income neighborhoods within the entire metropolitan area or individuals referred by community job training organizations.48 cbas create provisions to provide these individuals with jobs in a variety of ways. some implement referral and hiring processes. these include requiring employers to target prioritized individuals on their own by giving notice of job openings through certain channels or in certain geographic areas, interviewing only priority candidates for a limited period of time after they notify those candidates of openings, interviewing only people referred by designated sources, or meeting percentages of priority candidates hired in order to be in compliance with the program.49 the next few sections consider the employment provisions of some existing cbas to highlight a few of the forms they can take. the cbas chosen for this note met certain criteria. first, the note examines both historically significant or publicly controversial cbas. the staples cba is an example of the former and the atlantic yards cba the latter. second are cbas that appeared to have more direct involvement by local, state, or federal governments and are therefore more easily subject to constitutional challenges. the cherokee-gates cba and lax cba met these criteria. finally are cbas with clear hiring quotas for minority employees that implicate cases involving affirmative action plans. the atlantic yards and san francisco cbas are examples of this type of cba. the cbas discussed in this note are neither wholly illustrative of the many kinds of cbas in the country nor are they meant to indicate “important” or “better” cbas. rather, their provisions are potential signposts for legal analyses of whether different combinations of factors are more or less permissible under title vii and the fourteenth amendment.50 a. private-private agreements with first source offices, targeted hiring, and quotas based on geography and income cbas between two private actors with hiring practices based on geography or income could be subject to disparate impact challenges under title vii.51 if attributable to state action, however, such description of a tiered priority system, see first source hiring policy, section iv: responsibilities of first source referral system, partnership for working families, http://www.forworkingfamilies.org/sites/pwf/files/documents/staplescba.pdf. 48 these organizations are often called first source offices. gross, supra note 42, at 43. 49 id. at 45–46. 50 for an introduction to the broad range of issues facing cbas, see community benefits, partnership for working families, http://www.forworkingfamilies.org/campaigns/cba (last visited may 3, 2013); amy lavine, national survey on cbas, community benefits agreements (aug. 12, 2010), http://communitybenefits.blogspot.com/2010/08/national-survey-on-cbas.html. 51 suits for disparate impact do not require proof of intentional discrimination, but rather proof that an employment policy—whether intentional or unintentional—had a disparate impact on a particular minority group. title vii of the civil rights act of 1964 . . . prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. title vii prohibits both intentional discrimination (known as ‘disparate treatment’) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as ‘disparate impact’). ricci v. destefano, 557 u.s. 557, 577 (2009). 226 we built this city vol. 3:2 challenges would also receive an equal protection analysis.52 if a potential plaintiff has a case for both disparate impact, and it involves some state action, disparate impact alone will not bring a cba within a strict scrutiny analysis without a discriminatory motive.53 rather, the claimant would have to show that the relevant actors had a discriminatory purpose regarding him personally54 or that, given proof of a disparate impact, the relevant actors maintained the policy because of, not in spite of, the disparate impact.55 in short, it generally would be easier to prove a violation of title vii’s disparate impact provisions than to prove a constitutional violation under the equal protection clause. these factors will receive deeper analysis in part iv. 1. bayview cba in may 2008, a coalition of three san francisco community groups entered into a cba with lennar, a national housing developer.56 under the agreement, lennar promised to provide low-income housing, housing assistance funds, and specific hiring goals under a “first source hiring program.”57 the articulated purpose of the hiring program was to “facilitate the employment of targeted job applicants by employers in the project . . . through a non-exclusive referral system.”58 the agreement defines “employer” as a “non-governmental business or nonprofit corporation that conducts any portion of its operations in the project site with at least eight (8) regular full time equivalent employees.”59 the definition includes contractors but not construction contractors.60 the agreement defines a “targeted job 52 see discussion infra part iv.b. 53 see, e.g., mcclesky v. kemp, 481 u.s. 279 (1987) (holding that the state of georgia’s sentencing to death of more black defendants and killers of white victims than white defendants and killers of black victims did not manifest a discriminatory purpose in violation of the equal protection clause). see also washington v. davis, 426 u.s. 229, 246–48 (1976). under title vii, congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved[.] . . . however this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the constitution[.] . . . we are not disposed to adopt this more rigorous standard for the purposes of applying the fifth and the fourteenth amendments in cases such as this. id. 54 mccleskey, 481 u.s. at 292. 55 id. at 298–99. (claimant would have to prove that the “georgia legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect . . . [or] because of the racially disproportionate impact”) (emphasis in original). 56 the three san francisco groups were the san francisco labor council, acorn, and the san francisco organizing project (sfop). san francisco labor council pens affordable housing agreement with lennar, fogcityjournal.com (may 16, 2008), http://www.fogcityjournal.com/wordpress/455/san-francisco-labor-councilpens-affordable-housing-agreement-with-lennar. 57 see core community benefits agreement: hunters point shipyard/candlestick point integrated development project, partnership for working families (may 30, 2008), http://www.forworkingfamilies.org/sites/pwf/files/documents/bayviewhunterspointcba.pdf. 58 id. at 26. 59 id. 60 id. the exclusion of construction contractors is usually due to the way the industry is structured, which has led to low-bid contracting. the partnership for working families seeks to remedy these discrepancies in the 2013 columbia journal of race and law 227 applicant” as an individual referred to any employer by a “first source referral system,” which is the agency designated to implement the first source hiring program.61 the cba sets three tiers of targeted job applicants that an employer must prioritize above other applicants: first, individuals whose residence or place of employment will be displaced because of the project; second, lowand moderate-income individuals living in the area of the project; and third, lowand moderate-income individuals living in zip codes within the city.62 the agreement defines its goal for covered jobs for a six-month period to be fifty percent targeted job applicants for entry-level jobs.63 if an employer meets this goal, it will be considered in compliance with the first source hiring program.64 but an employer will also be in compliance with the program if it has observed the plan’s other provisions even if it has not met the goal.65 2. staples cba the staples center cba, though not officially the first cba, is typically considered the preeminent and groundbreaking cba negotiated between community groups and a large private developer. in may 2001, a coalition of over thirty labor groups negotiated a comprehensive cba covering the area surrounding the staples center in los angeles.66 this cba pioneered the first source hiring program to benefit “targeted job applicants” as well as employers by providing a pool of qualified job applicants. many other california community group coalitions modeled their cbas directly on the staples example.67 construction industry in addition to its other cba work. see construction career opportunities project, the partnership for working families, https://communitybenefits.rdsecure.org/section.php?id=168 (last visited mar. 31, 2013). 61 id. at 27. 62 id. the agreement also requires a specific process for covered employers to hire targeted job applicants. first, at least six months before initial hiring, each employer must notify the referral system of the best estimate of the approximate number and type of jobs that will need to be filled. as new jobs arise, an employer must also notify the referral system of available job openings and the skills and qualifications required. for three weeks after notifying the referral system of job opportunities, the employer may only hire qualified targeted job applicants as long as operations on the project site have not yet started. once operations have started, the employer can only hire targeted job applicants for five days after notifying the referral system of job opportunities. when both exclusive time periods are over, the employer must still make good-faith efforts to hire targeted job applicants, but may also hire any applicant recruited or referred from any source. id. at 28. 63 id. at 27. 64 id. at 28. 65 id. 66 see staples cba, supra note 47. 67 the bayview cba was partially based on the staples cba. see also north hollywood mixed-use redevelopment project community benefits program , partnership for working families (nov. 2001), http://www.forworkingfamilies.org/sites/pwf/files/documents/nohocba.pdf; marlton square redevelopment project developer community benefits program, partnership for working families, http://www.forworkingfamilies.org/sites/pwf/files/documents/cba_marltonsquare.pdf (last visited may 3, 2013); and hollywood & vine mixed-use development project community benefits agreement gatehouse hollywood development, l.p., partnership for working families, https://communitybenefits.rdsecure.org/downloads/cba%20gatehouse%20 final%205-7-04.pdf (last visited may 3, 2013). 228 we built this city vol. 3:2 in the staples cba, like the bayview cba, targeted job applicants are also separated into a tiered priority system with three levels with a more specific stratification of local geography: the first priority goes to individuals whose place of residence or employment has been displaced by the staples center project and to low-income individuals living within a half-mile radius of the project.68 the second priority goes to low-income individuals living within a three-mile radius of the project.69 the third priority goes to low-income individuals living in any area throughout los angeles.70 an employer is also required to use the first source referral system when hiring for any jobs located within the project area.71 b. private-public with hiring quotas based on geography as opposed to completely private cbas, in private-public cbas the action is already attributable to the state as a direct participant and signatory of the cba. therefore, legally, both the equal protection clause and title vii will apply. the level of scrutiny under equal protection analysis will be subject the previous caveats: proof of a disparate impact maintained precisely because of its impact, or a discriminatory implementation with respect to one or more individuals. without this showing, the cbas would receive a rational basis analysis. 1. cherokee-gates cba the cherokee-gates project in denver is similar to many other cbas, providing affordable housing and first source hiring, but it also includes an unprecedented agreement to pay prevailing wages to every construction worker who engages in the publicly funded construction of site infrastructure and maintenance of public spaces and facilities.72 the first source local hiring program promises to maximize both job opportunities for disadvantaged residents and the outcome of public investments.73 the biggest difference between the cherokee-gates cba and other cbas is the amount of public funding used for the project. the front range economic strategy center (fresc) led a coalition of community groups and union organizations to negotiate for $126 million in subsidies from the city of denver to the developer of the project, cherokee denver, llc.74 in return, cherokee denver agreed to a variety of conditions, including good wages for construction workers and first source hiring for nearby residents.75 in this case, negotiation between the community groups and the developer proved difficult and often 68 staples cba, supra note 47, at a-16. 69 id. 70 id. 71 id. 72 community benefits achievements at the cherokee-gates project, the campaign for responsible development, http://www.forworkingfamilies.org/sites/pwf/files/documents/cherokeegates.pdf (last visited may 3, 2013) [hereinafter community benefits achievements]. 73 first source local hiring: overview & history of denver’s first source policy, the front range economic strategy center, http://www.fresc.org/downloads/first%20source%20local%20hiring%20%20overview%20and%20denver%20history.pdf (last visited may 3, 2013). 74 tory read, the gates cherokee redevelopment project: “a huge step forward for low-income people in denver,” the front range economic strategy center (2006), http://www.fresc.org/downloads/gates%20report%20mcd.pdf (last visited may 3, 2013). the total subsidy included $85 million in tax increment financing and $41 million in metro district financing subsidies. the $126 million represented about thirteen percent of the total project budget of $1 billion. id. at 15. 75 id. at 2–3. 2013 columbia journal of race and law 229 frustrating, so the city stepped in to incentivize cherokee denver to agree to the groups’ conditions in return for subsidies.76 however, even though the city provided the crucial link, it was not a signatory to the agreement. therefore, including the gates cba under the private-public heading is slightly misleading. this cba will not necessarily qualify as state action, but the enormity of the subsidies and the city’s involvement in the cba necessitate a searching legal inquiry into whether this amount of governmental support would make this agreement appear more private-public than private-private.77 2. lax project cba the 2004 los angeles airport cba is the largest cba to date, encompassing an $11 billion modernization plan.78 the cba was signed by the lax coalition for economic, environmental and educational justice and the los angeles world airports (lawa), the governmental entity that operates the airport.79 the employment provisions of the cba look almost identical to those of the staples center cba, the predominant difference being the size and scope of the project. the targeted job applicants in the lax project are divided into only two tiers: first, low-income individuals living in the “project impact area”—an area defined by the project’s environmental impact report—and, second, low-income individuals residing in the entire city of los angeles.80 unlike the staples and bayview cbas, however, the lax cba does not include a goal of targeted job applicants to be hired for lawa to be in compliance with the agreement. rather, lawa must only hire targeted applicants for a set period of time when making initial hires for the commencement of operations and when making hires after the commencement of operations.81 here, the cba definitely involves state action, but the hiring criteria are facially neutral without an obvious discriminatory purpose. therefore, this cba is at most subject to a title vii disparate impact attack based on the demographics of los angeles. c. private-private and private-public with hiring based on race or gender finally, some private-private or private-public cbas have racial or gender-based quotas. as opposed to the geographically-based hiring goals of other cbas, these cbas impose affirmative action goals on the basis of race and gender. they are, therefore, subject to a disparate treatment analysis under title vii, but may fall within the permissible scope of voluntary affirmative action plans first analyzed in united steelworkers v. weber.82 the cbas in this category that are attributable to state action will most likely be facially discriminatory and subject to strict scrutiny. again, they will receive deeper analysis in part iv. 1. atlantic yards 76 id. at 21–23. 77 see discussion infra part iv.b. 78 john m. broder, los angeles groups agree to airport growth, for a price, n.y. times (dec. 17, 2004), http://www.nytimes.com/2004/12/17/national/17lax.html. 79 policy & tools: community benefits agreements & policies in effect, partnership for working families, http://www.forworkingfamilies.org/page/policy-tools-community-benefits-agreements-and-policies-effect#cbas (last visited mar. 29, 2013). 80 exhibit c to community benefits agreement: first source hiring program for airport employers, partnership for working families (2004), http://www.forworkingfamilies.org/sites/pwf/files/documents/laxfirstsourcefinal12-604.pdf. 81 id. at 3. 82 see united steelworkers of am. afl-cio-clc v. weber, 443 u.s. 193 (1979). 230 we built this city vol. 3:2 negotiated in 2004 and 2005, the atlantic yards cba in brooklyn, new york concerns the atlantic yards development, including the new barclays center stadium, housing, and retail space.83 however, due to extensive controversy and lack of adequate enforcement, atlantic yards has become the paradigm example of a “weak cba.”84 despite being modeled on the successful staples center project and negotiated by prominent brooklyn and minority community groups, the cba has failed to deliver some of its key promises to minority construction workers.85 nevertheless, a lawsuit filed by seven construction workers illustrates how specific promises within an enforceable cba can enable putative beneficiaries to sue for breach.86 the employment provisions of atlantic yards have simultaneous goals. first, they provide that developers would use good faith efforts to employ or cause to be employed at least thirty-five percent minority and ten percent women construction workers during construction of the arena and the project as a whole.87 second, the cba envisions that enrollment priority for the broader employment provisions and first source hiring program will extend first to residents of city-owned apartments and second to low-income members of the neighboring community, and then will expand outward both geographically and to individuals of higher income.88 the atlantic yards cba thereby creates a combination of quotas for minority and female employment, particularly during construction, as well as facially neutral geographic and income-based requirements.89 the most directly challengeable aspects of the atlantic yards cba would likely be the quota requirements for minority and female hiring. however, the geographic requirements could also be challenged if they imposed a disparate impact on non-minority residents seeking jobs in the large development. 2. milwaukee park east redevelopment area 83community benefits agreement, benefiting bvhp, http://www.benefitingbvhp.org/docs/docs/cba/atlantic_yards_cba.pdf (last visited may 3, 2013) [hereinafter atlantic yards cba]. 84 see supra note 7. 85 john marzulli & erin durkin, promise of union jobs a lie by atlantic yards, suit by construction workers charge, ny daily news (nov. 15, 2011), http://www.nydailynews.com/new-york/promise-union-jobs-a-lie-atlantic-yards-suitconstruction-workers-charge-article-1.977604. members of the coalition of community groups include, inter alia, the new york state association of minority contractors, brooklyn united for innovative local development, and downtown brooklyn neighborhood alliance. atlantic yards cba, supra note 83, at 1. 86 enforcement of cbas is beyond the scope of this note, but will remain a challenge for beneficiaries, especially among the “weak cbas.” parks & warren, supra note 3, at 92 (“[t]hree core features separate strong from weak cbas. a broad scope, high level of transparency, and explicit and robust monitoring and enforcement mechanisms are the core characteristics of strong cbas.”). 87 atlantic yards cba, supra note 83, at 13. 88 id. at 4, 12. 89 however, census data from kings county shows that the majority of brooklyn residents are non-white. state & county quickfacts, u.s. census bureau, http://quickfacts.census.gov/qfd/states/36/36047.html (last visited mar. 27, 2013). the areas immediately surrounding the development, such as clinton hill and fort greene, are sixty-four percent minority, though many minorities are leaving the area. tamy cozier & annesofie brochstedt, census 2010: a dramatic decline in black residents, fort greene/clinton hill news (may 23, 2011), http://fortgreene.thelocal.nytimes.com/2011/05/23/census-2010-a-dramatic-decline-in-black-residents/#more-57249. 2013 columbia journal of race and law 231 the milwaukee park east redevelopment compact (perc) in milwaukee, wisconsin was implemented in 2005 as part of the redevelopment of county land in downtown milwaukee. the cba required that during construction of the redevelopment, at least twenty-five percent of jobs would be in “disadvantaged business enterprises/minority business enterprises” (dbes/mbes)—defined as businesses that are at least fifty-one percent minority-owned and controlled—and at least twenty-five percent of employees would be minorities.90 however, the sixteen-acre project faced a significant obstacle when the city could not find a developer, so local community groups rallied around the board of supervisors and obtained the first cba passed by legislation instead of negotiations with a private developer.91 this cba therefore includes both state action and racial quotas, automatically requiring a strict scrutiny analysis. 3. christina avenue composting facility cba finally, peninsula compost company, a private developer, and members of a coalition of south wilmington, delaware community groups signed the christina avenue composting facility cba in 2007. the cba maintained quotas by setting a goal that twenty percent of the subcontracted construction work on the project was to be performed by dbes. the cba defines “minority” as a person with origins in any of the black african or caribbean, hispanic, native american or alaskan native, or asian and pacific islander racial groups, and any other individual deemed to be disadvantaged.92 it also aims to have twenty percent of the labor employed during the construction phase to be performed by community residents.93 paradoxically, the cba acknowledges that the goal of twenty percent subcontracted work done by dbes has never been achieved by any large urban development project in the community.94 nevertheless, the cba imposes quotas similar to those in adarand by mandating that subcontracting work go to firms predominantly owned or controlled by minorities. 90 community benefits agreement outline, park east redevelopment area, institute for wisconsin’s future, http://www.wisconsinsfuture.org/past_projects/econdev/gjln_agreement.htm (last visited may 3, 2013); minority business certification program, state of wisconsin – department of administration, http://www.doa.state.wi.us/section.asp?linkid=225&locid=171 (last visited may 3, 2013). 91 the cba was passed by the milwaukee board of supervisors on dec. 16, 2004. see park east redevelopment compact (perc), partnership for working families (dec. 16, 2004), http://www.forworkingfamilies.org/sites/pwf/files/documents/perc_0.pdf; amy lavine, milwaukee park east redevelopment cba, community benefits agreements (jan. 30, 2008), http://communitybenefits.blogspot.com/2010/08/national-survey-on-cbas.html. the perc states that the “milwaukee county board and the community asks and expects businesses and contractors to make a good faith effort to employ racial minorities consistent with their numbers in the county’s workforce[.] (the 2000 county census population . . . was 68.7% white, 20.4% black, 7.2% hispanic and 3.7% other[.]).” note, however, that the cba on the institute for wisconsin’s future website shows an employment requirement of twenty-five percent minority. community benefits agreement outline, park east redevelopment area, institute for wisconsin’s future, http://www.wisconsinsfuture.org/past_projects/econdev/gjln_agreement.htm (last visited may 3, 2013). 92 christina avenue composting facility community benefits agreement, new york city comptroller, 3–4, http://www.comptroller.nyc.gov/bureaus/opm/pba/pdf/communitybenefitsagree-pcc-so-wilmington-coalition.pdf (last visited may 3, 2013) [hereinafter christina avenue cba]. 93 id. at 5. as of the 2010 census, the population of the relevant communities covered by the cba was 67.4% non-white in wilmington, de. state & county quickfacts, u.s. census bureau, http://quickfacts.census.gov/qfd/states/10/1077580.html (last visited mar. 27, 2013). 94 christina avenue cba, supra note 92, at 4. 232 we built this city vol. 3:2 naturally, these three generalized buckets of cba structures still vary widely from place to place. the circumstances of title vii or constitutional challenges to their provisions will also vary widely and ultimately depend on the facts unique to each case. however, given the general trends that have emerged, these groupings help to outline the possible scope of cba challenges and their ultimate viability under title vii and the fourteenth amendment. iv. potential legal challenges to cbas and how to avoid these challenges a. title vii challenges in the private sector, employers occasionally manipulate the gender or racial balance of their employees in favor of minority applicants when neutrally selecting from a qualified applicant pool would otherwise produce a different balance. these manipulations have a few judicially relevant manifestations. the first are affirmative action plans voluntarily negotiated between an employer and a union or group of employees. under such a plan, the employer agrees with the union to hire or train a certain quota or percentage of minority applicants.95 in the second manifestation, an employer adopts a facially neutral hiring or promotion standard, then discovers that it may have a disparate impact on a minority population. for fear of disparate impact liability, the employer decides to invalidate or abandon the standard, to the detriment of those who met it.96 whenever an employer makes an “adverse employment decision” on the basis of race, even if intended to avoid potential disparate impact liability, the employer violates title vii.97 the supreme court has held that neither approach is per se invalid, but both are subject to narrow limitations that could affect the structure and implementation of cbas, particularly those with racial quotas.98 1. what are affirmative action plans and do cbas meet their criteria? 95 see united steelworkers of am. afl-cio-clc v. weber, 443 u.s. 193 (1979). the employer and the union bargained for a plan that reserved fifty percent of the openings in an in-plant craft training program to african americans until the percentage of african americans in the program was commensurate with the percentage in the local labor market. id. at 198–99. 96 see ricci v. destefano, 557 u.s. 557 (2009). the city of new haven tried to fill vacant lieutenant and captain jobs in its fire department by employing a promotional examination. seven out of nine candidates eligible for the captain position based on exam performance were white; the other two were hispanic. the department threw out the tests for fear of being found liable for adopting a practice with a disparate impact on minority firefighters. id. at 557, 562. 97 title vii of the civil rights act of 1964, 42 u.s.c. § 2000e–2(a), (j) (2006). these claims fall under a disparate treatment analysis because they make distinctions on the basis of race. affirmative actions that are facially neutral but have the effect of creating more minority applicants or employees than exist in the relevant labor market would be subject to a disparate impact analysis. see also ricci, 557 u.s. at 578–79 (city’s refusal to certify the test results violated disparate treatment provision of title vii absent some strong basis in evidence that the city would be subject to disparate impact liability had they retained the test); mcdonald v. santa fe trail transp. co., 427 u.s. 273 (1976) (title vii prohibits discrimination against whites as well as non-whites). 98 in ricci, the supreme court applied the rule that the city was required to demonstrate with a “strong basis in evidence” that it would be subject to disparate impact liability if it failed to take a race-conscious action. under the disparate impact test, the court held that the city officials lacked a strong basis in evidence both for the proposition that the tests were not job related and consistent with business necessity and for the belief that there existed an equally valid, less-discriminatory alternative to using examinations that adequately met the city’s needs. ricci, 557 u.s. at 584–93. 2013 columbia journal of race and law 233 most cases take for granted that the employer plan at issue is an affirmative action plan. however, the second circuit in united states v. brennan recently sought to define the threshold issue of what actually constitutes an affirmative action plan.99 the court determined that in order to be an affirmative action plan, the employer action must benefit all members of a protected class and cannot be individualized.100 in other words, “when an employer, acting ex ante, although in the light of past discrimination, establishes hiring or promotion procedures designed to promote equal opportunity and eradicate future discrimination, that may constitute an affirmative action plan.”101 however, when an employer with established procedures changes those procedures ex post because of the racial composition of the results, the individualized remedy (also known as “make-whole relief” intended to remedy the effects of discrimination) does not warrant the affirmative action defense.102 whether or not the plan is legally characterized as an affirmative action plan affects the relevant supreme court analysis. a voluntary affirmative action plan can be permissible under weber and its progeny. however, an employer’s affirmative action remedy requires a different analysis under ricci when the employer can justify that remedy only with a “strong basis in evidence” that the particular employment action caused a disparate impact in the first instance.103 when considered with brennan’s distinction in mind, all the cbas discussed in this note appear to create ex ante plans, in light of past discrimination, to promote equal opportunity and eliminate future discrimination. cbas are designed to go into effect before the developer breaks ground on a new project, which means that the plans do not seek to remedy any current practice that may have had a discriminatory effect on individuals who previously applied for jobs with the developer. however, it is also debatable whether the cbas could be affirmative action plans, given that some do not directly extend to “members of a racial or gender class.”104 many cbas, particularly those in san francisco and los angeles, will have the effect of targeting minority candidates because the relevant geographic areas in the plans have majority minority populations.105 but because the criteria themselves are facially neutral, the cbas might not be characterized as affirmative action plans. however, characterizing them as facially neutral is ultimately more beneficial to such agreements in the face of potential legal challenges. therefore, assuming that potential plaintiffs will try to characterize them as affirmative action plans, the next two sections analyze cbas in that light. 2. voluntarily negotiated affirmative action plans 99 united states v. brennan, 650 f.3d 65, 99–104 (2d cir. 2011). 100 id. at 99. 101 id. at 102. 102 id. at 102–04. the court is directly referring to the situation in ricci where the employer implemented a test as a prerequisite for promotions then threw out the test when it feared it would have a disparate impact on minority applicants. the action was individualized, the second circuit said, “for what it did, in essence, was to give promotion— or at least another chance at promotion—to the individual black firefighters who had taken the test, at the expense of those . . . who would have [otherwise been eligible for promotion].” id. at 102. 103 ricci, 557 u.s. at 563. 104 brennan, 650 f.3d at 104. 105 see, e.g., william h. frey, the new metro minority map: regional shifts in hispanics, asians, and blacks from census 2010, the brookings institute (aug. 2011), http://www.brookings.edu/~/media/research/files/papers/2011/8/31%20census%20race%20frey/0831_census_race _frey.pdf. 234 we built this city vol. 3:2 the affirmative action plan in united steelworkers v. weber arose at the same time as the philadelphia plan, hometown approaches, and the wave of title vii litigation in the late 1960s and early 1970s.106 the steelworkers union and the employer negotiated the affirmative action plan to apply to the employer’s fifteen national plants. white workers at the employer’s louisiana plant then sued for reverse discrimination. before the employer negotiated and implemented the plan only 1.83% of the employees at the louisiana plant were black, even though the local workforce was approximately thirty-nine percent black.107 both the district court and a divided fifth circuit held for the plaintiffs and granted a permanent injunction prohibiting the plan on the grounds that it violated title vii’s prohibition against race-based decisions in employment.108 the supreme court reversed and held that title vii permits some voluntary race-conscious affirmative action plans in the private workplace. however, the court also explicitly stated that its decision was based on the case’s narrow facts, including the fact that the union and private employer voluntarily agreed to the bona fide affirmative action plan.109 although weber held that some affirmative action plans are permissible, the court did not give clear guidance as to which plans would be permissible and which would not.110 nevertheless, the court tried to be instructive to future plans by recognizing three factors important to the weber plan. first, despite its narrow holding, the court gave judicial notice to plans designed to remedy past discrimination or obvious racial imbalances in traditionally segregated job categories. second, the plan did not “trammel the interests of the white employees” in that it did not fire white employees in order to hire black employees, nor did it serve as an “absolute bar” to white advancement because “half of those trained in the program would be white.”111 third, the plan was a temporary measure intended to eradicate the racial imbalance rather than maintain a racial balance between blacks and whites.112 in johnson v. transportation agency, santa clara county, the court clarified weber by stipulating that an employer does not need to have personally discriminated in the past in order to implement an affirmative action plan.113 rather, the employer need only point to an obvious “imbalance in traditionally segregated job categories.”114 this ruling expanded weber’s scope to include more employers in traditionally segregated industries, even if the segregation was unintentional. 106 see part ii supra for this background. 107 united steelworkers of am. afl-cio-clc v. weber, 443 u.s. 193, 198–99 (1979). 108 id. at 200. 109 id. at 200–01: the only question before us is the narrow statutory issue of whether title vii forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the kaiser-uswa plan. that question was expressly left open . . . in a case not involving affirmative action, that title vii protects whites as well as blacks from certain forms of racial discrimination. (internal citations omitted). because the plan did not involve state action, it did not implicate the equal protection clause of the fourteenth amendment. 110 id. at 208 (“we need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans. it suffices to hold that the challenged kaiser-uswa affirmative action plan falls on the permissible side of the line.”). 111 id. 112 id. 113 johnson v. transp. ag’y santa clara cty., 480 u.s. 616, 617 (1987). 114 id. at 630 (quoting united steelworkers of am. afl-cio-clc v. weber, 443 u.s. 193, 209 (1979)). the requirements from weber and johnson are known as the “purpose, impact and duration standards.” richard n. appel, alison l. gray & nilufer loy, affirmative action in the workplace: forty years later, 22 hofstra lab. & emp. l.j. 549, 564 (2005). 2013 columbia journal of race and law 235 significant gaps remain in the weber and johnson standards despite three decades of case law. first, it is unclear exactly what the supreme court would consider a “traditionally segregated” job category or those jobs in which past discrimination was sufficient to warrant current remedial action. second, even if the court did clearly establish what traditionally segregated job categories are, it is unclear what proof would be required to show whether a specific job falls into one of those categories. third, it is unclear whether a non-remedial purpose could justify a voluntary affirmative action plan by a private employer. even though the supreme court has never addressed whether a non-remedial purpose could justify a voluntary affirmative action plan, one circuit court has. in schurr v. resorts intern. hotel, inc., the third circuit held that an affirmative action plan that was not based in any finding of historical or current discrimination in the casino industry or in the plaintiff’s particular job category violated title vii under the weber standard.115 in that case, a new jersey casino director hired a qualified black male as a technician instead of a qualified white male because the director believed that such a decision was required by the casino’s affirmative action plan, which itself was required by the state of new jersey for every casino licensee.116 the court observed that neither the new jersey casino commission nor the defendant casino had designed the plans to correct a manifest imbalance in response to a job category that had ever been affected by segregation or in response to a finding that any relevant job category had been affected by segregation.117 rather, the casino commission stated that the casino control act was promulgated because the tourist area of atlantic city had become “blighted” and when casino development resurged, the legislature wanted to benefit the large minority population through significant job creation.118 cbas with specific racial targets implicate both the issue of whether the affirmative action plan is in a “traditionally segregated industry” and whether a non-remedial purpose could ever warrant an 115 schurr v. resorts intern. hotel, inc., 196 f.3d 486 (3d cir. 1999). the third circuit cited its decision in an earlier case for the rule that “unless the affirmative action plan has a remedial purpose, it cannot be said to mirror the purposes of the statute, and . . . cannot satisfy the first prong of [weber].” taxman v. bd. of educ., 91 f.3d 1547, 1557 (3d cir. 1996). 116 schurr, 480 u.s. at 488–90. the casino control act required that every casino license holder undertake affirmative measures to ensure equal employment opportunities. a new jersey regulation set specific minority and female percentage goals for particular job categories within the casinos and required casinos to file quarterly and annual reports on their affirmative actions efforts, including documentation of efforts to hire or promote a woman or minority to positions with a salary of $35,000 or higher. furthermore, casino licensees would be subject to periodic hearings about the affirmative action plans to demonstrate compliance. id. all of this indicates the extent of the state’s coercive power to enforce the affirmative action plans. 117 id. at 497–98. 118 id. at 498. the only other circuit court cases that analyzed non-remedial purposes involved public employees and an employer whose preferential treatment sought to promote racial diversity. see cunico v. pueblo sch. dist. no. 60, 917 f.2d 431 (10th cir. 1990) (court upheld a claim of reverse discrimination under title vii because there was no prior discrimination in the school district, there was no statistical imbalance that would give rise to an inference of discrimination, and the plan was designed to maintain—not achieve—a racial balance, in contravention of the rule in johnson); taxman, 91 f.3d at 1547 (board’s affirmative action plan preferring minority teachers over nonminority teachers in layoff decisions violated title vii since it was adopted to promote racial diversity rather than to remedy past discrimination and it unnecessarily trammeled nonminority interests). however, these decisions predate the supreme court’s decisions in gratz v. bollinger, 539 u.s. 244 (2003) and grutter v. bollinger, 539 u.s. 306 (2003), which held that racial diversity in higher education—at least among the student population—can be a compelling state interest. 236 we built this city vol. 3:2 affirmative action plan. although the construction industry has a long and well-documented history of discrimination, most cbas also affect jobs in the service sector, which do not necessarily have the same history.119 cases like schurr suggest, however, that a cba could benefit from including both clear findings of historical segregation in the included job categories and an explicit intent to remedy discrimination in those categories.120 some scholars theorize that a non-remedial purpose like racial diversity in the workplace could justify a voluntary affirmative action plan.121 however, if that were the case, the program would need to articulate how its plan is consistent with title vii’s objectives of breaking down patterns of racial segregation and hierarchy and is not intended to maintain a specific racial balance.122 the final remaining discrepancy after weber is the duration of the affirmative action plan and how to measure whether a plan is truly “temporary” within the meaning of weber. the idea of maintaining a racial balance usually comes into play after an employer has implemented an affirmative action plan and a minority employee has subsequently left a position. the employer will likely interview 119 see, e.g., gross, leroy & janis-aparicio, supra note 42, at 49 (“collective bargaining agreements in retail, service, and manufacturing generally do not conflict with targeted hiring requirements”); id. at 63 (cbas can implement protections similar to “worker retention” laws that “provide job security to long-term service workers when city contracts change hands. . . . this ensures that the service workers get to keep their jobs even when the specific hotel or theater operator changes.”). this is not to say the service industry has not had pervasive discrimination. see, e.g., bonnie kwon, restaurants and race: discrimination and disparity in the food service sector, restaurant opportunities centers united (aug. 16, 2011), http://rocunited.org/restaurants-and-race-discrimination-and-disparity-in-the-food-servicesector/; sue sturgis, chick-fil-a’s history of workplace discrimination, the institute for southern studies (aug. 2, 2011), http://www.southernstudies.org/2012/08/chick-fil-as-history-of-workplace-discrimination.html; amanda holpuch, disney sued for discrimination by former employee over muslim hijab, the guardian (aug. 14, 2012), http://www.guardian.co.uk/world/2012/aug/14/disney-sued-discrimination-muslim-employee. 120 although johnson said that proof of the historical discrimination does not have to be from the actor imposing the affirmative action plan, croson suggests that proof of historical discrimination should at least be localized and not based on national findings of discrimination in that industry. for a more in-depth discussion of croson, see infra part iv. 121 appel et al., supra note 114, at 570–73. grutter and gratz stated that there is a compelling state interest in promoting racial diversity in higher education. some scholars have sought to extrapolate that argument into the employment context. for a more detailed analysis of these issues, see eric a. tilles, lessons from bakke: the effect of grutter on affirmative action in employment, 6 u. pa. j. lab. & emp. l. 451 (2004) (concluding that even if grutter may have laid the foundation for more expansive use of affirmative action in employment, the current paradigm used to examine affirmative action in private employment will likely prevent grutter from having a large impact) and rebecca hanner white, affirmative action in the workplace: the significance of grutter?, 92 ky. l.j. 263, 272 (2003) (stating that it “appears likely” that the supreme court would view a public employer’s need to take race into account for certain employment decisions as compelling). the irony of grutter’s effect on title vii jurisprudence is that the “equal protection clause [imposes] fewer restraints on the government than title vii imposes on private employers . . . because . . . private employer[s] would not be permitted to adopt an affirmative action plan to better community relations, or referring more directly back to grutter, to sustain the ‘political and cultural heritage,’ ensure ‘[e]ffective participation by members of all racial and ethnic groups in . . . civic life,’ train ‘our nation’s leaders,’ or ‘to cultivate a set of leaders with legitimacy.’”). tilles at 463. white suggests differently—that title vii will permit employers more flexibility than is constitutionally available. white, supra, at 275. 122 united states v. weber, 443 u.s. at 208. one of the stated reasons the court upheld weber plan was because the “plan [was] a temporary measure . . . not intended to maintain a racial balance, but simply to eliminate a manifest racial imbalance.” 2013 columbia journal of race and law 237 both minority and nonminority candidates for the position. failure to hire a minority candidate risks going against an affirmative action plan, while hiring a minority replacement could be seen as maintaining the new racial balance that now exists because of the affirmative action plan. in sharkey v. dixie electricity membership corporation, the fifth circuit held that even though an employer had not explicitly stated when the affirmative action plan would end, it did not necessarily follow that the plan was intended to maintain a racial balance.123 furthermore, the employer’s policies indicated that race was merely a “plus” to an otherwise qualified candidate’s application, not something that could transform an almost-qualified candidate into a qualified candidate.124 for cbas, this issue is only relevant for the permanent service-sector jobs generated by a given project. however, none of the aforementioned cbas with racial quotas imposes those quotas for permanent jobs. therefore, this inquiry is not entirely relevant. however, assuming arguendo that a cba applies a racial quota to permanent jobs, weber remains instructive. the court stressed that the plan was aimed at eradicating a racial imbalance rather than maintaining a specific racial balance. specifically, the plan’s preferential selection of black candidates would end as soon as the percentage of black workers in the plant approximated that of the local labor force. some difficulties arise in applying this analysis to cbas. first, in some areas surrounding a cba project, the minority community is the majority. in such a situation, it is not entirely feasible to have the percentage of minority workers in the workforce equal that of the percentage of the minority in the surrounding community. if that outcome were the goal, the affirmative action program could continue in perpetuity, which could affect its viability under weber. instead, quotas like those in milwaukee, atlantic yards, or wilmington that applied to permanent jobs would be more realistic. however, to avoid challenges under the weber rubric, those hypothetical cbas should include a provision stating that once the employer reaches the quotas in the given job, it will not seek to maintain the racial balance but will instead evaluate further candidates on the merits, as the fifth circuit mentioned in sharkey. 3. disparate impact liability if a plaintiff cannot prove disparate treatment on the basis of race, gender, or any other prohibited category, he may still make a claim for title vii liability under the theory of disparate impact.125 the disparate impact standard provides that if an employer has a facially neutral hiring standard or policy—like a written test, for example—that has a disparate impact on a particular group, the court can strike down the test as violating title vii unless the standard is directly related to future job performance.126 the reasoning underlying this theory is that the disparate impact is an effective proxy for finding “artificial, arbitrary, and unnecessary barriers to employment when . . . [such barriers] operate invidiously to discriminate on the basis of [race].”127 123 sharkey v. dixie elec. membership corp., 262 fed. app’x. 598, 604–08 (5th cir. 2008). 124 id. at 606. 125 this test was first articulated in griggs v. duke power co., 401 u.s. 424 (1971). 126 id. at 431. 127 id. but intent is ultimately irrelevant to the disparate impact analysis. “[a]bsence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.” id. at 432. 238 we built this city vol. 3:2 in disparate impact cases, plaintiffs bear the initial burden of proving that a particular employment practice caused a disparate impact on the basis of race, color, religion, sex, or national origin.128 one way of showing an adverse impact from an employer’s hiring or promotion policies is by using the eeoc guidelines’ “four-fifths” rule of thumb.129 if the selection rate for a protected group is less than four-fifths of the selection rate of the rest of the applicant pool, the process will be presumed to have an adverse impact. as a practical matter, cases brought under cbas would presumably be disparate impact cases brought by white individuals, specifically white males, based on the disparate impact of facially neutral local hiring policies.130 although whites bringing disparate impact claims may seem out of line with the initial policy behind the civil rights act of 1964, the supreme court has held that disparate impact claims can be made by any race, not just minorities.131 a cba that gives hiring preference to individuals in the area immediately surrounding a project as well as low-income individuals the larger area around the project could have a disparate impact on nonminority individuals who also live in the city but not in the targeted areas. for example, imagine a relatively segregated city of 100,000 with an eighty percent nonminority population and a twenty percent minority population. the smaller area immediately surrounding the cba project has 20,000 people and is seventy-five percent minority, twenty-five percent nonminority.132 these numbers mean that the targeted applicants for the cba project jobs would first be the 15,000 minority and 5,000 non-minority individuals around the project site, and then any lowincome individuals in the city, presumably also members of the larger minority population that does not live in the project area. in this hypothetical, the “facially-neutral” localized hiring plan would have an adverse impact on non-minority job seekers because of the racial demographics of the town. this situation is not uncommon. many cities have areas dominated by one or a few racial groups that could stand to benefit greatly from these programs to the detriment of groups outside that immediate location. furthermore, a localized hiring plan standing alone is not job-related or of business necessity, which is the legitimate defense to adverse impact claims. therefore, cbas that appear neutral need to be careful about unintentionally causing an adverse impact. cbas like san francisco’s bayview and the staples center cba are instructive because they suggest a quota of fifty percent of the targeted job applicants but allow employers to avoid liability for failing to meet that goal if they meet the other 128 42 u.s.c. §2000e–2(k)(1)(a) (2006). 129 information on impact, 29 c.f.r. §1607.4(d) (2013) (“a selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by federal enforcement agencies as evidence of adverse impact”). however, the supreme court has noted that this standard has not provided much more than a “rule of thumb” for the courts. watson v. fort worth bank and trust, 487 u.s. 977, 995 n.3 (1988). 130 see supra notes 91 (for brooklyn, ny), 93 (for milwaukee, wi), and 95 (for wilmington, de) for evidence of the racial balance of certain areas where cbas with local hiring policies are in effect. 131 see mcdonald v. santa fe trail transp. co., 427 u.s. 273 (1976) (holding that title vii prohibits discrimination in private employment to people of any race). 132 therefore, the city’s population is comprised of 80,000 non-minority and 20,000 minority individuals. however, 15,000 of these minority individuals live in the area around the development and only 5,000 non-minority individuals live in that area. furthermore, of the remaining 5,000 minority individuals who do not live around the project area, perhaps about fifty percent of them are low-income. these low-income minority individuals will get job priority over the 75,000 non-minority individuals living outside the project area. 2013 columbia journal of race and law 239 provisions of the cba. by providing an “out” for employers, some cbas can ameliorate the potential adverse impacts of localized hiring policies. b. constitutional challenges to race-based cbas under the equal protection clause an equal protection analysis logically follows the title vii analysis because it is likely to be harder to withstand than title vii challenges. supreme court jurisprudence is historically more permissive of race-based affirmative action programs under title vii than under the equal protection clause.133 even though state action could create additional legal challenges, state sanction can also provide crucial enforcement and execution benefits. therefore, the benefits of enforcement must be a well-planned trade off to the risks of subjecting these agreements to constitutional challenge. 1. government as signer of or party to the agreement if the government—city, state, or federal—is a direct signatory or party to a cba, any challenge objecting to racial and ethnic based affirmative action initiatives within the cba will require a constitutional analysis under the equal protection clause.134 croson and adarand require that hiring requirements for government contracts that are based on race will be subject to strict scrutiny; to withstand such scrutiny, they must be narrowly tailored to a compelling state interest.135 part c of this section will address whether current cbas are likely to withstand this analysis. 2. state action doctrine136 133 see, e.g., ronald w. adelman, voluntary affirmative action plans by public employers: the disparity in standards between title vii and the equal protection clause, 56 fordham l. rev. 403, 421–22 (1987). adelman points out that for most courts, the equal protection standard for affirmative action plans is stricter than the title vii standard: earlier lower court cases that address both title vii and the equal protection clause appear to fall into three camps. one view recognizes the disparity and, concluding that the stricter equal protection standard ultimately will govern, subsumes the title vii standard into its equal protection analysis. a more common view sees the standards as distinct, the equal protection standard being stricter, but no court subscribing to this view has yet found a plan valid under title vii and invalid under equal protection. discussing this apparent disparity between statutory and constitutional standards, a court of appeals judge stated: “although i readily concede that interpreting title vii to permit personnel practices that the constitution prohibits seems anomalous, the supreme court has nevertheless concluded that congress intended just that state of affairs.” id. (internal citations omitted). the supreme court has also explicitly pointed out that the standard for a private employer under title vii is not coextensive with the constitution: “the fact that a public employer [under title vii] must also satisfy the constitution does not negate the fact that the statutory prohibition with which that employer must contend was not intended to extend as far as that of the constitution.” johnson v. transp. ag’y santa clara cty., 480 u.s. 616, 627 n.6 (1987) (emphasis in original). for a more in-depth analysis, see chris engels, voluntary affirmative action in employment for women and minorities under title vii of the civil rights act: extending possibilities for employers to engage in preferential treatment to achieve equal employment opportunity, 24 j. marshall l. rev. 731, 748 n.75 (1991). 134 see zehrt, supra note 34, at 5–6. 135 see id at 6–8. 136 for a comprehensive analysis of all components of the state action doctrine, see g. sidley buchanan, a conceptual history of the state action doctrine: the search for governmental responsibility, 34 hous. l. rev. 333 (1997) 240 we built this city vol. 3:2 if the government is not an express signatory to a cba, its involvement in funding and regulating parties to the agreement could nevertheless subject the cba to a constitutional analysis under the state action doctrine.137 the state action doctrine first observes that the constitution will not typically apply to private action that is not “fairly attributable” to the government.138 the doctrine nevertheless notes that the government is at least partially involved in many aspects of private activity, from land use to taxation, to subsidies and regulation, among others. therefore, the doctrine contemplates a spectrum of government involvement with completely private action at one pole and completely governmental action at the other. a court will then use the state action doctrine to scan this spectrum of governmental involvement to determine when there is sufficient governmental involvement to render the private action now “fairly attributable” to the government and therefore subject to the relevant constitutional analysis. there are many analytical frameworks under which a private actor’s actions could sufficiently implicate governmental action to warrant a constitutional analysis.139 the structure and context of most cbas most closely align with the state nexus issue: where one or more links exist between the government and the private actor such that the court must ask whether the amount or nature of those links is extensive enough to fairly attribute the private actor’s actions to the government.140 the modern test for state action comes from the supreme court’s analysis in lugar v. edmondson.141 there, the court established that the state action doctrine requires 1) a constitutional deprivation “caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state,” and 2) that the party charged with the deprivation is considered a state actor.142 the court later applied this lugar test in edmonson v. leesville to address whether a defendant’s use of peremptory challenges could be considered state action for purposes of an equal protection violation.143 applying the first lugar prong, the court found that the use of peremptory challenges was granted by congress and had no purpose outside a court of law.144 therefore, the ability to engage in the challenged act owed its origin and sanction to congress itself.145 though the second prong of the lugar state action test turns on a factual analysis, the court in edmonson observed principles of general application.146 to determine if an individual or organization’s [hereinafter state action doctrine i] and g. sidney buchanan, a conceptual history of the state action doctrine: the search for governmental responsibility [part ii of ii], 34 hous. l. rev. 665 (1997) [hereinafter state action doctrine ii]. 137 the state action doctrine owes its origin to justice bradley’s opinion in the civil rights cases, 109 u.s. 3, 11 (1883) (“it is state action of a particular character that is prohibited. individual invasion of individual rights is not the subject-matter of the [fourteenth] [a]mendment.”). this means that private acts of discrimination or infringement of due process rights under the fourteenth amendment would not warrant a constitutional analysis because they are not state action.) 138 state action doctrine i, supra note 136, at 335. 139 id. at 333–34; state action doctrine ii, supra note 136, at 665–67 (discussing each component of the state action doctrine, including the public function issue, the state nexus issue, the beyond-state-authority issue, the projection-of-state-authority issue, the state authorization issue, and the state inaction issue). 140 state action doctrine i, supra note 136, at 346–47. 141 lugar v. edmondson oil co., inc., 457 u.s. 922 (1982). 142 id. at 937. 143 edmonson v. leesville concrete co., inc., 500 u.s. 614, 620 (1991). 144 id. 145 id. at 621. 146 id. 2013 columbia journal of race and law 241 action is attributable to the state, several factors are relevant: first, “the extent to which the actor relies on governmental assistance and benefits;” second, “whether the actor is performing a traditional governmental function;” and third, “whether the injury caused is aggravated in a unique way by the incidents of governmental authority.”147 applying the first factor, the court found that the private actor had sufficient governmental assistance and benefits because peremptory challenges require “extensive use of state procedures with ‘the overt, significant assistance of state officials.’”148 the peremptory challenge system could not exist without significant participation by the government.149 second, the court found that selecting a jury is a traditional government function because a jury is a “quintessential governmental body, having no attributes of a private actor.”150 it asserted that “[i]f a government confers on a private body the power to choose the government’s employees or officials”—in this case, jurors—“the private body will be bound by the constitutional mandate of race neutrality.”151 finally, the court found that the alleged injury of discriminatory peremptory challenges was “made more severe” by its occurrence in a courtroom, which raised serious questions about the neutrality of the decisions made in that courtroom.152 given that all these conditions were decisively met, the court held that a defendant’s use of peremptory challenges could be attributable to state action. despite edmonson, however, an earlier supreme court decision applied a more constrained approach with a different analysis. in ncaa v. tarkanian,153 the university of nevada, las vegas fired its basketball coach, mr. tarkanian, at the behest of the ncaa.154 tarkanian sued both the university and the ncaa alleging violations of his fourteenth amendment due process rights.155 though the university was clearly a state actor, the court considered whether the ncaa, too, could be considered a state actor based on its involvement in the case.156 the court applied the first prong of the lugar test, but analyzed different factors under the second prong to determine when the decisive action taken 147 id. at 621–22, 624. the edmonson court did not mention if these factors standing alone are dispositive of state action. rather, the court examined all aspects sequentially and found that they all apply to a defendant’s use of preemptory challenges on the basis of race during the voir dire process. 148 id. at 622. 149 edmonson, 500 u.s. at 622–24 (stating that congress established the qualifications for jury service and the processes by which jurors are selected, that the procedures prescribed by the administrative office of the united states courts also apply, that private parties can only exercise peremptory challenges with the assistance of the court itself, and that the judge, as a state actor, makes himself a party to the alleged discrimination). 150 id. at 624. 151 id. at 625. 152 id. at 628 (“few places are a more real expression of the constitutional authority of the government than a courtroom, where the law itself unfolds.”). 153 nat’l collegiate athletic ass’n v. tarkanian, 488 u.s. 179 (1988). the court held that the ncaa was not a state actor because its rules, ultimately executed by the university, did not originate in state law. rather, the ncaa took its power from state law, but developed its rules and regulations on its own. furthermore, the ncaa took no direct action against the coach; it could only threaten sanctions against the university actor. the university did not thereby delegate any power to the ncaa to make the decision. finally, the court said that even assuming the ncaa’s ability to sanction the university was so great that it effectively coerced the university to fire the coach, it did not follow that the ncaa was acting under color of state law. 154 id. at 180–81. 155 id. at 181. 156 id. at 181–82. 242 we built this city vol. 3:2 against an individual may be deemed to be state action.157 the court said such an attribution may be appropriate “if the state creates the legal framework governing the conduct, . . . if it delegates its authority to a private actor, . . . or . . . if it knowingly accepts the benefits derived from the unconstitutional behavior.”158 although these factors differ from those later applied in edmonson, the edmonson court did not seek to dismantle the tarkanian analysis. therefore, these factors still apply and overlap with those in edmonson. an example of the first tarkanian scenario occurs when the state compels or mandates the unconstitutional action. for example, in american manufacturers mutual insurance company v. sullivan,159 the issue was whether a private insurer’s decision to refuse payment for medical treatment could be attributed to the state for purposes of the fourteenth amendment because the insurer was permitted to withhold that treatment under state law.160 the court held that the insurer’s act was not state action because it is not enough that the state “authorized” or “encouraged” the act without more proof that it specifically wanted the insurers to withhold payment for medical treatment.161 finding a “close nexus” between a state and the challenged action, the court explained, requires the state to exert sufficient coercive power or to have provided significant overt or covert encouragement such that the action must have been that of the state.162 when the decision to withhold payment was made entirely by the judgment of the private party, the plaintiff would be hard-pressed to show a sufficient nexus for state action even though the state extensively regulated the insurer.163 by failing to show this nexus, the plaintiff in sullivan failed to attribute the insurer’s conduct to the state.164 the second tarkanian scenario is when a state delegates power to a private individual. a common example is when the state delegates its eighth amendment obligation to provide medical treatment to incarcerated individuals to a private physician. in west v. atkins, a doctor who contracted with the state to provide medical services to a prisoner was a state actor in light of his assumption of the state’s duty to provide constitutionally adequate medical care.165 the third tarkanian factor—whether the state knowingly accepts the benefits derived from unconstitutional behavior—comes from one of the earliest cases of the modern state action doctrine, burton v. wilmington parking authority.166 burton more or less established the conceptual framework that guided most of the subsequent case law. in burton, a restaurant located within a parking building owned by a delaware state agency refused to serve an african american man because of his race.167 the plaintiff argued that because the restaurant leased its space from the state, its action was subject to the equal protection clause of the fourteenth amendment.168 the court ultimately agreed with the 157 id. at 192–94. 158 id. at 192. 159 am. mfrs. mut. ins. co. v. sullivan, 526 u.s. 40 (1999). 160 id. at 51. 161 id. at 51–53. 162 id. at 52. 163 id. at 57–58. 164 id. at 58. 165 west v. atkins, 487 u.s. 42, 56–57 (1988). 166 burton v. wilmington parking auth., 365 u.s. 715 (1961). see also state action doctrine i, supra note 136, at 395. 167 burton, 365 u.s. at 716. 168 id. 2013 columbia journal of race and law 243 plaintiff, conducting a fact-specific analysis that weighed several “contact factors” to determine that the restaurant had sufficient contact with the state to merit a constitutional analysis. first, the land and building were publicly owned and “dedicated to ‘public uses’ in performance of . . . ‘essential government functions.’”169 second, the land and building were not “surplus state property” but rather integral—both financially and physically—to the state’s plan to operate a self-sustaining project.170 third, the “peculiar relationship” of the restaurant and the parking facility “confer[red] on each an incidental variety of mutual benefits.”171 finally, the court found that it would be a “grave injustice” for the government to idly permit discrimination of a citizen in a government building, even if in good faith.172 under this analysis, even if the state were not directly aware of the discriminatory conduct of the private actor, by virtue of the state’s physical and fiscal relationship to that actor, the conduct could become state action. the “knowingly accepting benefits” prong has been subject to judicial constraint. for example, in rendell-baker v. kohn, the supreme court held that extensive government regulation and funding were generally not enough to qualify as state action.173 even though the nonprofit school in question received almost all of its funding from and was heavily regulated by the state, the court found that those factors did not override the school’s private judgment.174 the petitioners also claimed that because the school performs a “public function,” it is a state actor. the court rejected that claim on the grounds that the function performed not only had to be “traditional,” but traditionally the “exclusive prerogative of the state.”175 finally, in contrast to its decision in burton, the court found an insufficient “symbiotic relationship” between the school and the state in rendell-baker. whereas in burton the restaurant’s profits contributed to the support of the state-owned garage, the school in rendell-baker was unilaterally dependent on the government for support, but did not fiscally contribute to the government in return.176 in brentwood academy v. tennessee secondary school athletic association, the most recent case on this issue, the court said that “no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient.”177 here, the court indicated a return 169 id. at 723. 170 id. at 723–24. 171 id. at 724. 172 burton v. wilmington parking auth., 365 u.s. 715, 724–25 (1961). buchanan refers to these factors as 1) the government and ownership factor, 2) the financial integration with government factor, 3) the symbiotic relationship factor, and 4) the governmental encouragement or endorsement factors. state action doctrine i, supra note 136, at 396. 173 see rendell-baker v. kohn, 457 u.s. 830 (1982) (nonprofit school receiving most of its funding from the state, subject to extensive state regulations, performing a “public function” and having a “symbiotic relationship” with the government did not rise to the level of state action). 174 id. at 841 (“here the decisions to discharge the petitioners were not compelled or even influenced by any state regulation”). however, while regulation alone is not usually enough to prove state action, it may be sufficient where regulatory activity of a nominally private actor is sufficiently intertwined with the state. see brentwood acad. v. tennessee secondary sch. ath. ass’n, 531 u.s. 288 (2001) (holding that regulatory activity of a statewide association made up primarily of public school officials and funded mostly by their dues, and that had traditionally regulated in lieu of the state board of education, was considered state action). however, mere receipt of dues from member universities who receive federal financial assistance will not subject the ncaa to constitutional requirements. see nat’l collegiate athletic ass’n v. smith, 525 u.s. 459 (1999). 175 rendell-baker, 457 u.s. at 842 (emphasis in original). 176 id. at 842–43. 177 brentwood acad., 531 u.s. at 295. 244 we built this city vol. 3:2 to burton’s totality of the circumstances test for whether the combination of factors serves to push private action over the threshold into state action. in brentwood, the persuasive thread running through precedent to its holding was the amount of management and control the state exerted over the private actor. the “pervasive entwinement” of the statewide association with state officials and institutions justified the court’s holding that “there is no substantial reason to claim unfairness in applying constitutional standards to it.”178 however, the court astutely noted that what is “fairly attributable” to the state “is a matter of normative judgment, and the criteria lack rigid simplicity.”179 therefore, any honest analysis must be fact-specific. still, the aforementioned examples provide some signposts as to relevant points of inquiry. 3. analysis of the state action doctrine as applied to atlantic yards as a threshold matter, significant governmental funding for, regulation of, and authorization of a development and a cba will not be enough to turn the developer into a state actor. therefore, any direct hiring decision made by the developer or any private employer on the development site will not fall under the state action doctrine. this is true even when the project would be impossible but for governmental funding and regulation of the project.180 in the cba context, this means that even the terms of a cba such as cherokee-gates, according to which the community could not find a developer until the city agreed to significant subsidies, do not necessarily turn a developer action into state action. furthermore, even where the building sites are subject to extensive regulation and approval processes, the rendell-baker and sullivan analyses make it unlikely that any specific hiring decisions would be traced to state action when the state did not directly make or mandate those decisions. nevertheless, legislation has been passed and is being contemplated that mandates cbas between developers and the community for new projects.181 the legislation itself would only satisfy the first prong of the lugar test; far more contact with the state than mere state legislation is required for the actual hiring action to be attributable to the state. however, if, as in the milwaukee cba example, the state legislation envisions racial or gender quotas for the cba itself, those requirements would provide the requisite link between state action and the private developer’s hiring decisions. the trickier analysis is whether there are enough links between the private actor and the state to satisfy the burton analysis. for the purposes of this analysis, i chose to look at the atlantic yards cba because it involves a private developer, racial quotas, and significant new york city involvement. a project of this scope, although privately negotiated and executed, is ripe for a state action analysis to see if its racial hiring provisions require an equal protection analysis. the first burton factor was that the city owned the land while the building and the restaurant leased its space. according to the 2009 atlantic yards lease agreement, empire state development corporation (edsc)—a new york state entity—is the landlord for the interim leases, ground leases, arena development, and non-arena development leases. for all except the ground leases, affiliates of bruce ratner’s private development company are the tenants. the brooklyn arena local development 178 id. at 298. 179 id. at 295. 180 see rendell-baker v. kohn, 457 u.s. 830, 842 (1982). 181 see milwaukee cba, supra note 91. see also proposed michigan senate bill 379 (may 12, 2011), available at http://legiscan.com/mi/text/sb0379/2011 (requiring the developer of a new detroit river bridge to sign a cba with local governments and community representatives). 2013 columbia journal of race and law 245 corporation (baldc) leases the ground lease from the esdc and then leases the arena development lease to a ratner affiliate.182 the arena lease is set to last for at least thirty-five years. this means that not only will the city own the land, but also will nominally own the arena and lease it to baldc, which in turn will lease it to the developer.183 however, instead of paying money to the city or baldc in rent or taxes, ratner’s company will pay only a nominal dollar amount for “rent” and the rest will go toward the construction, operation, and maintenance of the arena in lieu of taxes.184 new york city is thus not getting the same fiscal return for the arena as the city received from the restaurant in burton. however, to the extent that the burton requirement envisions the apparent governmental sanction of private activity conducted on its property, this arrangement could satisfy that factor. the second burton requirement was that the land not be “surplus” but rather financially integral to the city’s plan to operate a self-sustaining project. without a doubt, the barclays center is an integral part of the city. the arena hosts the new jersey nets, an nba basketball team. the land is located in the heart of brooklyn, and includes multiple housing units and retail space. however, in contrast to burton, fcr and not the city owns those buildings. nevertheless, the project is still funded with at least $100 million of esdc funds and $100 million of city funds, and its plan envisions more city and state funding depending on further needs of the project.185 the third burton factor—the so-called “symbiotic relationship” factor—looks to the exchange of mutual benefits between the state and the private actor. in burton, the court looked to how the state’s parking garage gave guests of the parking facility an accessible place to park their cars and how that convenience for diners could, in return, increase demand for the city’s parking facilities.186 similarly with the barclays center, the links between the city and this large-scale housing, stadium, and retail complex are multitudinous. in addition, although scholars and commentators remain divided about the net benefits of stadiums on local economic growth,187 the city and developer nevertheless project the benefits of the project with unified force.188 182 exhibit d: project leases abstract, available at http://www.scribd.com/doc/78517384/2009-esdc-atlanticyards-lease-abstract (last visited may 3, 2013) [hereinafter atlantic yards abstract]. 183 norman oder, prokhorov filled arena financing gap not by buying bonds but offering a loan, atlantic yards report (feb. 24, 2010), http://atlanticyardsreport.blogspot.com/2010/05/prokhorov-filled-arena-financing-gap.html; history of empire state development, empire state development, http://www.esd.ny.gov/aboutus/history.html (last visited mar. 31, 2013). 184 atlantic yards abstract, supra note 182. see also atlantic yards land use improvement and civil project modified general project plan 25–26, empire state development (june 23, 2009), http://www.esd.ny.gov/subsidiaries_projects/ayp/atlanticyards/modifiedgpp2009.pdf. 185 id. at 27–29. 186 burton v. wilmington parking auth., 365 u.s. 715, 724 (1961). . 187 roger g. noll & andrew zimbalist, sports, jobs & taxes: are new stadiums worth the cost?, the brookings institute (summer 1997), http://www.brookings.edu/research/articles/1997/06/summer-taxes-noll.aspx (discussing how local sports stadiums may not actually be as economically beneficial to new york city as typically claimed). 188 kareem fahim, ground broken on atlantic yards project, n.y. times (mar. 11, 2010), http://cityroom.blogs.nytimes.com/2010/03/11/ground-broken-on-atlantic-yards-project (showing mayor bloomberg and governor paterson shoveling dirt for the groundbreaking at atlantic yards); nicholas confessore, to build arena in brooklyn, developer first builds bridges, n.y. times (oct. 14, 2005), http://www.nytimes.com/2005/10/14/nyregion/14yards.html?ref=atlanticyardsbrooklyn (discussing the way in which 246 we built this city vol. 3:2 the final burton factor is whether, by virtue of the city’s implicit approval of the project and the cba, it is putting its imprimatur on a “grave injustice” perpetrated by the private actor. though maintaining racial quotas for a large-scale project is less grave than forbidding any african americans from eating at a restaurant, the supreme court has upheld the notion that “any person, of whatever race, has the right to demand that any governmental actor subject to the constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.”189 in burton, the restaurant affirmatively alleged that its business would be injured if it served african americans, and the court found this indicative of the government’s direct benefit, through the lease, from discriminatory action.190 the totality of the circumstances does not evince an obvious answer to the question of whether the atlantic yards cba will be required to withstand strict scrutiny. some commentators suggest that the state action analysis ultimately comes down to whether a reasonable person would think the private actor is actually a state actor.191 cases like sullivan, brentwood academy, and tarkanian all also seem to adopt this pragmatic approach. when state officials are so involved in the decisions of a nominally private actor, the private actor’s judgments and decisions effectively become those of the state. when the appearance of state authority is so omnipresent and a private actor is literally encapsulated within a state building, its actions appear to be those of the state. however, the mere presence of state funding and regulation of an institution, without more, does not substitute state action for the independent judgments and decisions of private actors within that institution. under the scope of this bigger picture, even a project like atlantic yards does not appear to have sufficient state entanglement to transform the private developer into a state actor for the purposes of the state action doctrine. 4. would a race-based cba withstand strict scrutiny? even if the race-based programs in the atlantic yards, milwaukee, and peninsula cbas likely do not meet the high bar of the state action doctrine, a thorough assessment requires a determination of whether if they would pass strict scrutiny. after adarand, the seventh, eighth, and ninth circuits said that if a state is implementing a federal program within its jurisdiction, it does not have to provide its own compelling interest to satisfy strict scrutiny.192 but, because croson applies to state and local programs akin to the localized provisions of cbas, its analysis is more relevant. in 1983, richmond, virginia adopted a plan that required prime contractors with the city to subcontract at least thirty percent of the value of the contract to at least one minority business enterprise (mbe).193 the court struck down the plan on the grounds that it failed to show a compelling state interest in both imposing the plan and in arriving at the thirty percent quota.194 the court observed that while a state or locality has the bruce ratner’s ability to get support from prominent community figures helped move the atlantic yards development forward). 189 adarand constructors, inc. v. pena, 515 u.s. 200, 201 (1995). 190 burton, 365 u.s. at 724. 191 see, e.g., john b. owens, westec story: gated communities and the fourth amendment, 34 am. crim. l. rev. 1127, 1155 (1997) (“the reasonable person probably would believe that a coffee shop in a public parking structure was somehow owned by the state.”). 192 zehrt, supra note 34, at 14. the cases in these circuits all examined congressional findings regarding race discrimination in government highway contracting. the congressional findings were sufficient for the compelling state interest prong. 193 id. at 7. see also city of richmond v. j.a. croson co., 488 u.s. 469, 477 (1988). 194 croson, 488 u.s. at 507–11. 2013 columbia journal of race and law 247 authority to remedy the effects of past discrimination within its jurisdiction, that authority must be strictly confined when making racial distinctions.195 in order to withstand strict scrutiny, the state or locality has to prove with enough evidence that it is remedying discrimination specifically within its jurisdiction. richmond supplied evidence about the disparity between the number of prime contracts awarded to minority firms and the minority population of the city, but the court found the comparison to be improper. it stated that when specific qualifications were necessary to fill certain jobs, the relevant comparison should instead be between qualified individuals and the current pool of minority contractors awarded prime contracts.196 the court also did not accept the low mbe membership in local contractors’ associations because it found that low participation could be credited to a variety of explanations.197 furthermore, the court did not accept congressional findings of nationwide discrimination in the construction industry as sufficient justification for the plan.198 on these grounds, the croson court held that richmond had failed to supply sufficient evidence of any identified discrimination in the city’s construction industry sufficient to warrant a remedial plan.199 the richmond plan thus failed to identify a compelling state interest. however, the court also observed many ways in which a city like richmond could have shown a compelling state interest in creating the quota. first, instead of comparing contracts awarded to minority firms with the general minority population in the city, richmond should have looked at qualified minority contractors.200 second, instead of looking only at the fact that black membership in the trade organizations was low, the city should have linked low minority membership to the number of local mbes eligible for membership. if the statistical disparity were great enough, an inference of discrimination could arise.201 finally, instead of looking at nationwide discrimination in the construction industry, richmond needed to determine if its own spending practices were exacerbating the pattern of prior discrimination, identify that discrimination with specificity, and then fashion relief based on its findings.202 relying on congress’s nationwide findings was not enough. croson covers some of the field regarding how to prove a compelling state interest to remedy prior discrimination in a particular industry, but most of the battle has been waged in the circuits. professor lynn ridgeway zehrt examined all the circuit court cases analyzing regional affirmative action plans and found that only one out of ten passed strict scrutiny. 203 the ninth circuit held that statewide 195 id. at 491. 196 id. at 501–02. the court looks to title vii cases for these examples of relevant comparisons. see, e.g., hazelwood sch. dist. v. united states, 433 u.s. 299 (1977). in croson, the city did not even know how many mbes in the market were qualified to undertake prime or subcontracting work nor the percentage of total city construction dollars minority firms received at the time as subcontractors on prime contracts by the city. croson, 488 u.s. at 502. 197 croson, 488 u.s. at 503 (“the mere fact that black membership in these trade organizations is low, standing alone, cannot establish a prima facie case of discrimination.”). 198 id. at 504 (“congress has made national findings that there has been societal discrimination in a host of fields. if all a state or local government need do is find a congressional report on the subject to enact a set-aside program, the constraints of the equal protection clause will, in effect, have been rendered a nullity.”). 199 city of richmond v. j.a. croson co., 488 u.s. 469, 505 (1988). 200 id. at 503. 201 id. 202 id. at 504. 203 zehrt, supra note 34, at 21. 248 we built this city vol. 3:2 findings of discrimination were insufficient to justify an affirmative action plan within a state university. instead, the university had to independently offer its own evidentiary support documenting how it had previously discriminated against the protected groups within the university. in the sixth circuit, ohio had dispatched a state task force that extensively studied the relationship between minorities and the state contracting industry and held numerous public hearings about the state’s historical exclusionary practices in construction.204 the task force determined that the legislature should adopt a statewide ten percent goal for construction contracts, and the supreme court of ohio agreed.205 however, another group of plaintiffs filed a claim in the sixth circuit, which found the program not to be compelling because the statistical evidence was mostly outdated and either too limited in scope or irrelevant to the case.206 of the programs that had a compelling state interest, many were not narrowly tailored. the supreme court held that in order for a plan to be narrowly tailored, the relevant factors were “the necessity for the relief and efficacy of alternative remedies; the flexibility or duration of the relief[;] . . . the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of the parties.”207 the cases that have failed in the circuits were unsuccessful either because the government had not considered race-neutral alternatives or because the term “minority” was overinclusive and not limited to minorities that had actually suffered discrimination in the jurisdiction.208 the croson court even gave some suggestions of race-neutral ways to increase accessibility of contracting opportunities for minority contractors, including “simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races[.]”209 for cbas like the milwaukee park east redevelopment compact that directly involve the state and involve race-based quotas, the case law suggests that the city should conduct extensive studies to find proof of discrimination in the construction industry in the city or the surrounding area. the city of denver proved a compelling state interest to the tenth circuit by presenting evidence of grievances filed by minority contractors, several public hearings and extensive testimony of racial discrimination within the city’s construction industry, several statistical disparity studies, telephone and mail surveys of local construction businesses, as well as a trial run of a voluntary program that ultimately failed.210 that this is the only program to prove a compelling interest indicates that the bar is set quite high. it suggests that a city needs to adopt a race-neutral program first before attempting to impose a racial quota and that the city must use a variety of survey methods to prove that discrimination actually exists. for those cities who have signed or legislatively enacted cbas, this proof will be incredibly costly and burdensome. the better alternative is to let the private developer negotiate the cba with the community groups directly to avoid a constitutional analysis. however, if having the city participate in the cba is the only way to enforce the plan, then the quotas should not be race-based, but instead should follow the model of the staples and san francisco cbas, which focuses on training and hiring local and low-income residents. also, doing extensive research about the causes of local disparities is not enough. the city’s remedy must also be narrowly tailored to the problem. first, the program cannot be overinclusive of other groups not subject to historical discrimination. in croson, this requirement meant that “spanish 204 id. at 22. 205 id. 206 id. at 23. 207 id. at 24. 208 id. 209 city of richmond v. j.a. croson co., 488 u.s. 469, 509–10 (1988). 210 zehrt, supra note 34, at 19–20. 2013 columbia journal of race and law 249 speaking, oriental, indian, eskimo, or aleut persons” could not benefit from the plan without this kind of proof even if there was proof of african-american discrimination.211 for a program like the christina avenue compositing facility cba in delaware, this point is directly relevant. although the city is seventy-seven percent african american and the nature of historical discrimination seems confined to this group, the quota applies to minorities defined to include hispanic persons, native americans or alaskan natives, and asian and pacific islander groups. without any proof that these groups were similarly disadvantaged, this cba could face a downfall similar to that of the plan in croson. finally, croson also suggests that it is not enough to find that there was discrimination in the local area in the specific industry; there needs to be a reason for the targeted number.212 the court did not say that percentage quotas were per se unconstitutional, but struck out strongly against them.213 at most, the decision suggests that where there is evidence of extreme discrimination, a “narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion,” but only after all raceneutral non-numeric options have been exhausted.214 unfortunately, this analysis strongly suggests that programs like the composting facility and the milwaukee cbas will not withstand a strict scrutiny analysis. only the most thorough and iterative program has ever withstood this analysis, and these cbas do not meet its high bar. v. conclusion community benefit agreements have heretofore been the most promising approach to remedying discrimination against minority contractors and construction workers in urban communities. nevertheless, these agreements require extensive safeguards to insulate them from potential legal challenges. percentage goals will likely create the most cause for legal challenge, and cbas probably should not include them. first source offices may well withstand legal challenge because they are not facially discriminatory and technically benefit all members of the community equally. private cbas are also more likely to withstand legal challenges than public cbas in light of the supreme court’s decisions in adarand and croson. furthermore, despite the benefit of these agreements, significant enforcement problems remain. in 2011, seven brooklyn construction workers filed a lawsuit against developer bruce ratner and local group brooklyn united for innovative local development (build) for failing to deliver 1,500 annual jobs and job training promised to mostly african american build members who supported the project.215 in the cba between columbia university administrators and harlem residents for the 211 croson, 488 u.s. at 506. 212 id. at 507 (“[t]he 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing. it rests upon the ‘completely unrealistic’ assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.”). 213 id. at 508 (“since the city must already consider bids and waivers on a case-by-case basis, it is difficult to see the need for a rigid numerical quota.”). 214 id. at 509. 215 daniel bush, out of work! ratner ally build got just 15 jobs for black yard supporters, the brooklyn paper (dec. 1, 2011), http://www.brooklynpaper.com/stories/34/48/dtg_buildjobsrecord_2011_12_02_bk.html. one claimant stated, “i would never have joined this pre-apprenticeship program if it wasn’t agreed (guaranteed) to me that i would have a union card upon completion;” amy sara clark, construction workers sue atlantic yards developer, claiming they were “duped,” prospect heights patch (nov. 15, 2011), http://prospectheights.patch.com/articles/construction-workers-sue-atlantic-yards-developer-claiming-they-were 250 we built this city vol. 3:2 manhattanville project, many local minority architects claim they were offered fewer, smaller projects while european architects received the more lucrative ones.216 lack of enforcement will likely remain the greatest problem facing cbas—bigger than any of these legal challenges—particularly for new yorkbased cbas. this does not mean, however, that cbas are not worthwhile. cbas continue to break impressive ground all over the country.217 cbas offer a promising approach to remedying past and precluding present discrimination against minority contractors and construction workers in areas of new development. they can promote normative values like democratic participation and cooperation within communities by encouraging community involvement in development projects.218 contracts between private and public actors can promote accountability and flexibility in decision-making processes that affect local communities.219 cbas also promote transparency, by letting private actors, public officials, and the local media keep track of the progress of a project and how it meets the promises set out in the agreement. 220 finally, cbas provide clarity about potential outcomes. this is crucial when local governments want to point to the successes of a particular project in terms of job creation or revenue duped. see also heather haddon, brooklyn arena criticized on hiring, wall street journal (jan. 23, 2012), http://online.wsj.com/article/sb10001424052970203718504577177390852461060.html. as of november 2012, build dissolved its operations citing funding difficulties, tax arrears and complaints about spending irregularities. cate, barclays restaurant unionizes, build dissolves, brownstoner (nov. 7, 2012), http://www.brownstoner.com/blog/2012/11/barclays-restaurant-unionizes-build-dissolves. 216 kimberly shen & chris meyer, black architects claim that they were passed over for manhattanville, colum. daily spectator (jan. 28, 2013), http://www.columbiaspectator.com/2013/01/28/black-architects-claim-they-were-passedover-manhattanville (“[the administrators] offer a project on broadway that is worth $20,000, which is a drop in the bucket for professional architects like us. . . . even after we have offered to work collectively and pair up with architects already hired for the project, the administrators still turned us down.”). 217 for a new cba on long island, see aisha al-muslim, hempstead oks controversial agreement on downtown plan, newsday (jan. 15, 2013), http://www.newsday.com/long-island/towns/hempstead-oks-controversial-agreement-ondowntown-plan-1.4453020. for one in new haven, see thomas macmillan, it’s a deal—and a sale, new haven independent (dec. 18, 2012), http://www.newhavenindependent.org/index.php/archives/entry/mlkamistad_community_benefits_deal_reached/id_53497 (cba to sell an abandoned school to a not-for-profit charter school to rebuild a new high school). for one in cleveland, see gcp board votes to support establishment of community benefits agreement, greater cleveland partnership (dec. 10, 2012), http://www.gcpartnership.com/news/2012/gcpboard-votes-to-support-establishment-of-community-benefits-agreement-12-10-12.aspx. for one in portland, oregon, see don mcintosh, city of portland commits to build union and use minority workers and contractors, nwlaborpress.org (sept. 18, 2012), http://nwlaborpress.org/2012/09/cba-2/ (describing a “model community benefits agreement” where the city of portland agrees that on future city construction projects, unions will represent workers and women and minority workers will have better opportunities). 218 see audrey g. mcfarlane, when inclusion leads to exclusion: the unchartered terrain of community participation in economic development, 66 brooklyn l. rev. 861, 910 (2000) (discussing the transformational benefits of democratic participation beyond the ballot box to the “process of participation [of] citizens themselves being involved in prioritysetting, as well as decision-making, dialogue and deliberation.”). see also patricia e. salkin & amy lavine, community benefits agreements and comprehensive planning: balancing community empowerment and the police power, 18 j.l. & pol’y 157, 157 (2009) (“often low-income and minority communities are not fully engaged in the [land use regulatory] process, even when it may result in decisions negatively impacting their neighborhoods.”). 219 see generally jody freeman, the private role in public governance, 75 n.y.u. l. rev. 543 (2000). 220 gross, leroy & janis-aparicio, supra note 42, at 22. 2013 columbia journal of race and law 251 brought into a local area.221 in light of these possible benefits, the most immediate upcoming challenge will be ensuring that cbas have the teeth they need to be successful. this will take significant commitment from both the developer and the community groups involved. until then, the legal issues mentioned in this article may not even manifest. and, with enough endorsement and participation from the entire community, they may not have to. 221 id. 252 we built this city vol. 3:2 innovative responses to foreclosures: paths to neighborhood stability and housing opportunity justin p. steil * this article argues that the current foreclosure crisis illustrates how economic stability and racial justice are intertwined. recent research has found that the more racially segregated a metropolitan region is, the higher the number and rate of its foreclosures. indeed, the high levels of racial residential segregation in the u.s. facilitated discriminatory and abusive lending practices and contributed to instability in regional housing markets. the article contends that current fair housing laws alone are insufficient to dismantle the economic and political structures that continue to produce segregation, particularly the architecture of fragmented and unequal local governments competing with each other for resources. responses to foreclosures provide an opportunity to chip away at these incentives for segregation by encouraging regional collaboration and shared-equity homeownership structures. two promising examples of such collaboration are examined: first, a partnership between local governments and non-profits conducting targeted redevelopment through the federal neighborhood stabilization program; and, second, a joint effort by a community development financial institution and a community development corporation to buy portfolios of distressed notes at a discount in order to rehabilitate scatteredsite properties as affordable housing. building on these examples, the article proposes that the next significant step toward creating durable solutions is for municipalities to *   fellow, center for institutional and social change, columbia law school. b.a., harvard college; j.d., columbia law school; m.sc., london school of economics; ph.d. candidate, columbia graduate school of architecture, planning, and preservation. thank you to samantha bent, anurima bhargava, james connolly, annie decker, adam gordon, stephanie greenwood, stephen hayes, olatunde johnson, peter marcuse, kerim odekon, amy offner, devi rao, and yleana roman for their helpful comments. 2011 columbia journal of race and law 64 support shared-equity homeownership structures designed to create permanent affordability and neighborhood stability. innovative responses to foreclosures from federal, state, and local policymakers hold the promise of advancing both economic security and racial justice. i. introduction ................................................................................ 65 ii. racial discrimination and residential segregation ... 67 a. the historical roots of residential segregation .................. 67 b. evidence of contemporary discrimination .......................... 71 iii. segregation and the financial collapse .......................... 76 a. financial deregulation and the commodification of housing ....................................................................................... 77 b. two-tiered financial services: redlining and reverse redlining ..................................................................................... 78 c. discretionary pricing and discrimination ............................. 80 d. disparate impacts in foreclosures ......................................... 83 iv. segregation and fair housing law ..................................... 86 a. limits to current fair housing enforcement ...................... 86 1. low reporting levels ....................................................... 86 2. ad hoc enforcement and weak penalties .................... 88 b. limits to fair housing remedies: obstacles to regional responsibility ............................................................ 89 v. segregation and the structure of local governance ................................................................................... 92 a. economic localism and local governance ......................... 93 b. grounds for rejecting localism ............................................. 96 1. equitable grounds............................................................. 96 2. economic grounds ........................................................... 98 vi. challenging economic localism ........................................ 100 a. regional experimentation in foreclosure prevention ...... 102 1. cross-border collaboration in the nsp ....................... 104 2. discounted bulk purchases of distressed notes for affordable housing................................................... 107 b. shared-equity homeownership structures ......................... 108 1. rethinking dominant homeownership models ......... 109 2. land-trusts and durable affordability ........................ 111 3. land trusts and neighborhood stability ..................... 112 4. expanding shared-equity opportunities ..................... 113 vii. conclusion .................................................................................. 115 65 innovative responses to foreclosures vol. 1:1 i. introduction the united states is currently experiencing a level of foreclosures not seen since the great depression, with broad impacts on families and neighborhoods across the country. at the current rate, banks will repossess more than one million homes in 2010 and initiate foreclosure proceedings on three million more— approximately one in every forty-five homes.1 one in nine homeowners is more than sixty days delinquent on their mortgage2 and twenty-three percent of homeowners owe more in mortgage debt than their home is worth.3 this article argues that one of the causes of the current foreclosure crisis is the high-level of residential segregation that persists in the united states. residential patterns in the united states are currently even more segregated by race and class than they were a century ago.4 this segregation simultaneously has facilitated and has been perpetuated by the creation of a two-tiered financial services sector offering separate and unequal products in different neighborhoods and to different consumers.5 this two-tiered 1  realtytrac, 1.65 million properties receive foreclosure filings in first half of 2010 (july 15, 2010), available at http://www.realtytrac.com/content/ foreclosure-market-report/165-million-properties-receive-foreclosure-filingsin-first-half-of-2010-5877. 2  press release, mortg. bankers ass‟n, mortgage bankers association national delinquency study (feb. 19, 2010), available at http:// www.mbaa.org/newsandmedia/presscenter/71891.htm. 3  ruth simon & james r. hagerty, one in four borrowers is under water, wall st. j., nov. 14, 2009, at a1. 4  douglas s. massey, origins of economic disparities: the historical role of housing segregation, in segregation: the rising costs for america 39, 4252 (james h. carr & nandinee k. kutty eds., 2009); kevin gotham, race, real estate, and uneven development 27-70 (2002). 5  the department of justice has uncovered significant evidence of patterns and practices of redlining, discriminatory underwriting, and discriminatory pricing by various lenders.  as examples of redlining, see united states v. chevy chase fed. sav. bank, no. 94 civ. 1824 (d.d.c. 1994) (bringing suit against chevy chase bank for failing to market and refusing to make loans in predominantly non-white neighborhoods); united states v. albank, fsb, no. 97 civ. 1206 (n.d.n.y. 1997) (charging albank with violations of the fair housing act (fha) and equal credit opportunity act (ecoa) for refusing to make loans in particular cities where the majority of african american and latino residents in its lending region lived). regarding underwriting discrimination and evidence that banks were not providing the same assistance to african american and latino applicants that they were providing to white applicants, see united states v. decatur fed. sav. & loan assoc., no. 92 civ. 2198 (n.d. ga. 1992), united states v. northern trust co., no. 95 civ. 3239 (n.d. ill. 1995), united states v. first nat’l bank of dona ana cnty., http://www.mbaa.org/newsandmedia/presscenter/71891.htm http://www.mbaa.org/newsandmedia/presscenter/71891.htm 2011 columbia journal of race and law 66 structure of financial services contributed to the mass-marketing of subprime financial products. these financial products were then the catalyst for the high rates of foreclosures and subsequent credit crisis that began in 2007. a clearer understanding of the roots of the current housing crisis creates new urgency for the effort to dismantle the structures that entrench segregation. while continuing discrimination remains significant, the most powerful force perpetuating segregation is the current structure of fragmented, unequal local governments that are highly dependent on local tax revenues. this structure encourages municipalities to compete with each other to attract investment and to exclude those who may require services or be seen as reducing property values. the existing distribution of strong land use powers to local governments, coupled with minimal restrictions on their ability to exclude based on wealth, simultaneously perpetuates segregation and shields municipalities from liability. more robust protections against discrimination within the current compliancebased model of accountability, while beneficial, can go only so far in unraveling this persistent segregation, which has been legally woven into the existing structures of local governance and fiscal policy. anti-discrimination laws alone can neither level the unequal economic footing on which different local governments stand nor proscribe the legally-sanctioned exclusionary practices of many municipalities.6 an effective response to foreclosures, therefore, must address both the governance structures that have entrenched segregation and the current home ownership and financing structures that have encouraged speculation. the housing crisis creates new opportunities to look at local models in order to foster collaboration across municipal lines, as well as innovative methods to reduce speculation and to make homes the stable and secure no. 97 civ. 96 (d.n.m. 1997), and united states v. shawmut mortg. co., no. 93 civ. 2453 (d. conn. 1993).  regarding pricing discrimination and evidence that loan officers were charging higher up-front fees for home mortgage loans to african american and latino borrowers than whites or encouraging loan officers and independent mortgage brokers to use discretionary pricing in a discriminatory manner, see united states v. huntington mortg. co., no. 95 civ. 2211 (n.d. ohio 1995).  see also united states v. fleet mortg. corp., no. 96 civ. 2279 (e.d.n.y 1996); united states v. long beach mortg. co., no. 96 civ. 6159 (c.d. cal. 1996). 6  most common among these exclusionary practices is the use of zoning laws to increase the cost of housing and limit rental units. see rolf pendall, local land use regulation and the chain of exclusion, 66 j. am. plan. ass'n 125, 125 (2000). see also infra note 11. 67 innovative responses to foreclosures vol. 1:1 long-term investment buyers hope for. working to prevent and respond to foreclosures also should be understood as an opportunity to begin to dismantle segregation by focusing on regional solutions and on stable alternative homeownership structures. after briefly summarizing the roots of housing segregation throughout the twentieth century, part ii of this article reviews the most recent comprehensive study of contemporary housing discrimination. part iii analyzes the way in which the current segregated metropolitan pattern was central in enabling the foreclosure crisis. part iv analyzes the limitations of existing fair housing laws, which are characterized by ad hoc enforcement and weak penalties that together fail to effectively deter violations. it also considers the obstacles to creating regional remedies in light of two recent fair housing cases, thompson v. united states department of housing & urban development7 and united states ex rel. antidiscrimination center of metro new york, inc. v. westchester county.8 given the limited ability of existing fair housing laws to address entrenched segregation, part v examines the economic assumptions that undergird current structures of local governance and advances two main critiques of these dominant assumptions. part vi then puts forward an innovative regional collaboration that has developed to address foreclosures in the essex county, new jersey metropolitan area, and discusses shared-equity forms of home ownership that cities are considering in response to the foreclosure crisis. ii. racial discrimination and residential segregation a. the historical roots of residential segregation over the past century, segregation was established and perpetuated through a combination of both public and private actions. one of the leading scholars in the field, douglas massey, concludes that “white americans made a series of deliberate historical decisions to deny blacks full access to urban housing and to enforce their spatial isolation in society.”9 white mob violence against integrated neighborhoods in the late 1890‟s and early 1900‟s 7  348 f. supp. 2d 398 (d. md. 2005). 8  no. 06 civ. 2860, 2009 wl 455269 (s.d.n.y. feb. 24, 2009). 9  massey, supra note 4, at 39. 2011 columbia journal of race and law 68 drove african americans from their homes10 and was reinforced by municipal zoning restrictions excluding african americans from white neighborhoods.11 in 1948, after the national association for the advancement of colored people (naacp) challenged these racially-based zoning provisions and the supreme court found them unconstitutional,12 private neighborhood improvement associations implemented racially restrictive covenants to take their place.13 after the 1930‟s, the most significant force intensifying segregation 10  id. at 53-54.  in multiple cities around the united states, whites led racial assaults against african americans in multiracial neighborhoods— destroying black homes, terrorizing black residents, and creating new and rigid borders between black and white communities.  see thomas w. hanchett, sorting out the new south city: race, class and urban development in charlotte 1875-1975 (1998); james w. loewen, sundown towns: a hidden dimension of american racism 90-115 (2005); c. vann woodward, the strange career of jim crow (1955). 11  cities and towns throughout the south and midwest passed zoning ordinances to legally establish separate white and black neighborhoods. for instance, in 1914, louisville, kentucky passed “ „[a]n ordinance to prevent conflict and ill-feeling between the white and colored races in the city of louisville, and to preserve the public peace and promote the general welfare, by making reasonable provisions requiring, as far as practicable, the use of separate blocks for residences, places of abode and places of assembly by white and colored people respectively.‟ ”  buchanan v. warley, 245 u.s. 60, 70 (1917). see a. leon higginbotham, jr. et al., de jure housing segregation in the united states and south africa:  the difficult pursuit for racial justice, 1990 u. ill. l. rev. 763, 807-62 (1991); garett power, apartheid baltimore style:  the residential segregation ordinances of 1910-1913, 42 md. l. rev. 289 (1983); roger l. rice, residential segregation by law, 1910-1917, 34 j. s. hist. 179 (1968). 12  the naacp filed suit to challenge the state enforcement of segregation, and the supreme court found these laws unconstitutional in 1917. buchanan v. warley, 245 u.s. 60 (1917).  nevertheless, many municipalities continued to adopt and enforce racially restrictive zoning agreements well into the 1940‟s. see monk v. city of birmingham, 185 f.2d 859 (5th cir. 1950) (invalidating ordinance birmingham passed in 1949 implementing racial zoning statutes dating to 1926); baker v. city of kissimmee, 645 f. supp. 571, 579 (m.d. fla.1986) (pointing out that kissimmee continued to enforce a racial zoning ordinance into the 1940‟s); state v. wilson, 25 so. 2d 860 (fla. 1946) (striking down racial zoning ordinance enacted by dade county in 1945). 13  the typical racially restrictive covenant was similar to that struck down in shelley v. kraemer, which stated that “ „no part of said property or any portion thereof shall be . . . occupied by any person not of the caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the negro or mongolian race.‟ ” shelley v. kraemer, 334 u.s. 1, 4-5 (1948). the federal housing authority recommended the use of racially restrictive covenants until 1950. massey, supra note 4, at 55-56. 69 innovative responses to foreclosures vol. 1:1 nationally was the growth of suburbs, combined with the discriminatory loan-underwriting standards created by the federal home owners loan corporation, which were adopted by the federal housing authority and almost universally used by the banking industry.14 through the purchase of subsidized suburban homes, post-war white homebuyers “came to accept as natural the conflation of whiteness and property ownership with upward social mobility,” and they also created new collective identities united on issues of property taxation and racial segregation.15 these collective identities were reinforced further by the creation of local government boundaries (through processes of municipal incorporation or secession) that divided on the basis of race and 14  the four-tiered underwriting system developed by the federal home owners loan corporation (holc) in the early 1930‟s systematically undervalued racially mixed neighborhoods and strongly discouraged lending in integrated or primarily non-white communities. the federal housing authority included the holc tiered rating system in its 1939 underwriting manual, expressing concern about the impact of “incompatible racial or nationality groups” on property values and stating that, “if a neighborhood is to retain stability, it is necessary that properties shall continue to be occupied by the same social and racial classes.” gregory squires, capital and communities in black and white 53 (1994). private banks quickly came to rely on the holc and federal housing authority rating system to make their own loan decisions, leading to the nearly complete denial of mortgage financing in african american neighborhoods through the process that came to be called “redlining.” the federal housing authority loans created by the national housing act of 1937 and the veterans administration loans created by the servicemen‟s readjustment act of 1944 (the gi bill) increased the purchasing power of the white middle class and spurred the growth of suburbs. the loan programs guaranteed the value of collateral for loans made by private banks, enabling banks to make loans for up to ninety percent of the purchase price and to extend the repayment period for mortgages to thirty years. the reduced risk for banks led to lower interest rates and dramatically increased homeownership rates among whites, but the same discriminatory lending standards applied and the program did little to benefit african americans, who ended up trapped in inner cities as the white middle class left for new single-family suburban homes. see charles abrams, forbidden neighbors: a study of prejudice in housing (1955); kenneth t. jackson, crabgrass frontier: the suburbanization of the united states (1985); peter medoff & holly sklar, streets of hope: the fall and rise of an urban neighborhood (1994); beryl satter, family properties: how the struggle over race and real estate transformed chicago and urban america (2009); adam gordon, the creation of homeownership: how new deal changes in banking regulation simultaneously made homeownerhsip accessible to whites and out of reach for blacks, 115 yale l.j. 186 (2005). 15  robert self, american babylon: race and the struggle for postwar oakland 16 (2003). 2011 columbia journal of race and law 70 class.16 local governments perpetuated these divisions by adopting zoning ordinances that fostered race and class segregation, without explicitly mentioning race, by zoning whole communities only for large lot sizes with single-family homes or by restricting any multifamily housing that might be permitted to largely minority urban renewal areas.17 from the 1950‟s to the 1970‟s, federal urban renewal policies were used to clear black neighborhoods seen as encroaching on white business districts and elite institutions.18 together, the spatial isolation of african american communities and the systematic disinvestment from black neighborhoods made it exceedingly difficult for african american 16  see richard t. ford, the boundaries of race: political geography in legal analysis, 107 harv. l. rev. 1843 (1994). 17  see, e.g., huntington branch, naacp v. town of huntington, 844 f.2d 926 (2d cir. 1988) (holding that the town‟s decision to zone multi-family housing only in narrow urban renewal area already with a predominate minority population would have a disproportionate impact on african americans), aff'd, 488 u.s. 15 (1988); united states v. city of black jack, mo., 508 f.2d 1179 (8th cir. 1974) (finding that the city‟s decision not to include zoning for multi-family housing violated the fha because it would perpetuate segregation); dews v. town of sunnyvale, 109 f. supp. 2d 526, 570-73 (n.d. tex. 2000) (finding intent to discriminate where town‟s zoning laws banned multi-family housing and required a minimum of one-acre lots for residential development, given the evidence that town had a history of excluding african americans and departed from normal procedures in rejecting developer‟s rezoning application for multi-family housing); united states v. yonkers bd. of educ., 624 f. supp. 1276 (s.d.n.y. 1985) (finding discriminatory intent in the siting of public housing where the city rejected the planning board‟s site recommendations for subsidized housing in primarily white neighborhoods and rezoned available sites to make them unavailable), aff’d, 837 f.2d 1181 (2d cir. 1987). 18  massey, supra note 4, at 73-74. attempts to address the growing disinvestment from inner cities led to the housing acts of 1949 and 1954 and the national urban renewal programs. urban renewal made federal funds available to municipalities to acquire land, clear it, and prepare it for redevelopment.  the program was frequently used to empty african american neighborhoods near central business districts and move displaced residents into concentrated public housing developments, further contributing to segregation. see national commission on urban problems, building the american city:  report of the national commission on urban problems to the congress and to the president of the united states, h.r. doc. no. 91-34, at 12 (1968); arnold r. hirsch, making the second ghetto:  race and housing in chicago 1940-1960 (1983); june manning thomas, redevelopment and race:  planning a finer city in postwar detroit (1997); marc a. weiss, the origins and legacy of urban renewal, in urban and regional planning in an age of austerity 53, 53-80 (pierre clavel et al. eds., 1980); jon c. teaford, urban renewal and its aftermath, 11 hous. pol‟y debate 443 (2000). 71 innovative responses to foreclosures vol. 1:1 families to accumulate wealth. this historical lack of access to mainstream financial services and to homeownership has been the central factor in creating the racial disparities in wealth that still structure united states‟ society.19 b. evidence of contemporary discrimination the residential isolation experienced by non-white families, and the discrimination that fostered it, both persist today.20 the 19  douglas s. massey & nancy a. denton, american apartheid:  segregation and the making of the underclass (1993); melvin oliver & thomas shapiro, black wealth/white wealth: a new perspective on racial inequality (1995).  the median household net worth for white households in 2007 was $170,000 compared with $17,000 for african american households. brian k. bucks et al., changes in u.s. family finances from 2004 to 2007:  evidence from the survey of consumer finances, fed. res. bull., feb. 2009, at a4, a8.  see also edward n. wolff, recent trends in household wealth in the united states:  rising debt and the middle-class squeeze 29 (levy econ. inst., working paper no. 502, 2007), available at http://www.levy institute.org/pubs/wp_502.pdf (estimating the 2004 net worth of latino households at $5,500).  racial disparities in wealth are significantly larger than disparities in income, primarily because of the wide gaps in homeownership rates and home values between whites and nonwhites.  see thomas m. shapiro, race, homeownership and wealth, 20 j.l. & pol‟y 52 (2006); george masnick, home ownership trends and racial inequality in the united states in the 20th century (joint ctr. for hous. stud., working paper no. 01-4, 2001), available at http://www.jchs.harvard.edu/publications/homeownership/masnick_w014.pdf. in 2008, seventy-five percent of white households owned their own homes, whereas less than fifty percent of african american and latino households did.  u.s. census bureau, american housing survey (2008), available at http://www.census.gov/hhes/www/housing/hvs/annual08/ ann08ind.html. 20  the most common measure of segregation is the index of dissimilarity.  it measures the evenness with which two groups are distributed across a set of smaller geographic areas that comprise the larger area being studied.  it is a measure generally from zero to one or zero to one hundred, where the higher the number, the more segregated the two groups are.  the index score can be interpreted as the percentage of one of the two groups included in the calculation that would have to move to different areas in order to produce a completely even distribution.  see otis d. duncan & beverly duncan, a methodological analysis of segregation indexes, 20 am. soc. rev. 210 (1955). for evaluations and critiques of the dissimilarity index, see charles f. cortese et al., further considerations on the methodological analysis of segregation indices, 41 am. soc. rev. 630 (1976); douglas s. massey & nancy a. denton, the dimensions of residential segregation, 67 soc. forces 281 (1988).  african americans in major u.s. cities in 2000 generally experienced levels of segregation between sixty and eighty, and latinos between forty and seventy, indicating high levels of segregation for both groups.  nancy a. denton, 2011 columbia journal of race and law 72 2000 housing discrimination study (hds 2000), sponsored by hud, found that african american, latino, and native american customers were denied at least some of the information and assistance comparable to that which white customers received in approximately one of five visits to a real estate or rental agent.21 furthermore, it remained common for african american and latino renters to be told that a housing unit was unavailable when a white renter was offered the same unit.22 between 1989 and 2000, racial steering of african americans seeking to buy homes increased,23 thereby perpetuating segregation and discrimination in housing, in a right to housing: foundation for a new social agenda 61 (rachel g. bratt et al. eds., 2006). 21  margery austin turner & stephen l. ross, how racial discrimination affects the search for housing, in the geography of opportunity:  race and housing choice in metropolitan america 81, 86 (xavier de souza briggs ed., 2005); margery austin turner et al., housing discrimination in metropolitan america:  unequal treatment of african americans, hispanics, asians, and native americans, in fragile rights within cities: government housing and fairness 40 (john goering ed., 2007) [hereinafter turner et al., housing discrimination in metropolitan america]; margery austin turner et al., the urban inst., discrimination in metropolitan housing markets:  national results from phase 1 hds 2000 (2002), available at http://www.huduser.org/portal/publications/ pdf/phase1_report.pdf [hereinafter turner et al., discrimination in metropolitan housing markets]. conducted by the urban institute, the hds 2000 study sent out paired researchers—one white and one of color— posing as otherwise identical home-seekers to visit real estate or rental agents to inquire about the availability of housing units in more than 5,400 paired tests in twenty-three metropolitan areas. 22  turner et al., discrimination in metropolitan housing markets, supra note 21, at iv (the overall incidence of white-favored treatment over african american renters declined from 26.4% in 1989 to 21.6% in 2000. the overall incidence of white-favored treatment over latino renters was 26%, not significantly different from 1989 to 2000.).  since 1989, there was also an increase in the percentage of latino renters who were quoted a higher rent than their white counterparts for the same unit.  id. at 3-7. 23  turner et al., discrimination in metropolitan housing markets, supra note 21, at 6-6 (the hds 2000 study found that in 16.5% of paired tests, white homebuyers were shown more homes in neighborhoods with a higher percentage of white residents than african american homebuyers, a ten percentage point increase in the gross incidence of steering since the previous study in 1989.  both the 2000 and 1989 studies were sponsored by hud and conducted by the urban institute.  the hds 2000 study replicated the basic research design and testing protocols used in the 1989 hds study in order to yield comparable measures of differences in treatment.). http://www.huduser.org/portal/publications/pdf/phase1_report.pdf http://www.huduser.org/portal/publications/pdf/phase1_report.pdf 73 innovative responses to foreclosures vol. 1:1 racial segregation by directing african american home-seekers away from predominantly white neighborhoods.24 given that homes in white communities appreciate in value more quickly than homes of similar design, size, and appearance in black communities, the chances of accumulating wealth from investment in black communities are reduced.25 some scholars have described the home value differentials as a “segregation tax” imposed on african american homeowners with the result that for every dollar african americans spend on a house, they receive only eighty-two percent of the value that white homeowners receive.26 african americans and latinos also experienced unequal access to the financial services associated with buying a home.27 when individuals are denied advice and information about mortgage financing or steered into higher priced loans than they qualify for, their chances of obtaining favorable loan terms are compromised. indeed, high-interest subprime loans are five times more likely to be made in predominantly african american neighborhoods than white ones.28 24  steering can include: (1) direct segregation steering, where nonwhites are encouraged to consider more non-white neighborhoods than whites; (2) information steering, where non-whites receive less information about a narrower range of neighborhoods in general than whites; and (3) class steering, in which non-whites are encouraged to consider less affluent neighborhoods than otherwise similarly situated whites.  turner et al., housing discrimination in metropolitan america, supra note 21, at 49-50. 25  oliver & shapiro, supra note 19, at 147; chenoa flippen, unequal returns to housing investments? a study of real housing appreciation among black, white, and hispanic households, 82 soc. forces 1523 (2004). 26  david rusk, the brookings inst., the “segregation tax”: the cost of racial segregation to black homeowners (2001), available at http://www.brookings.edu/es/urban/publications/rusk.pdf (examining the causes of the variation in home value between blacks and whites across one hundred metropolitan areas, rusk controlled for numerous factors including the size of the metropolitan area, economic inequality across neighborhoods, and rates of home-ownership and found that the strongest predictor of the racial gap in home value were measures of racial segregation through both dissimilarity and isolation indices.). 27  turner et al., discrimination in metropolitan housing markets, supra note 21, at 8-1 to 8-6. 28  u.s. dep‟t of hous. & urban dev., unequal burden: racial disparities in subprime lending in america (2000), available at http://www.huduser.org/publications/pdf/unequal_full.pdf. subprime loans can be defined as home loans with an annual percentage rate at least three percentage points above the rate on u.s. treasury securities of comparable maturity. robert g. schwemm & jeffrey l. taren, discretionary pricing, mortgage discrimination, and the fair housing act, 45 harv. c.r.-c.l. l. rev. 375 (2010). http://www.huduser.org/publications/pdf/unequal_full.pdf 2011 columbia journal of race and law 74 some argue that racial residential segregation is not primarily a byproduct of racial discrimination, but rather a result of nondiscriminatory class separation or different neighborhood preferences. while wealth and preferences may each play a role, the results of the paired testing in the hds 2000 study confirm that racial discrimination continues to pervade housing decisions. analysis of the dissimilarity index of u.s. metropolitan areas by both race and class demonstrates that while economic status does play some role in explaining segregation, race continues to be a significant factor.29 thus, both racial discrimination in housing and residential segregation continue. the ability to access housing in a particular location fundamentally shapes individuals‟ and households‟ ability to access opportunity.30 this article focuses primarily on how segregation shapes households‟ access to financial services and, as a result, how segregation was a key catalyst in the foreclosure crisis. in addition, segregation has significant, well-documented, independent effects on employment,31 health,32 and education.33 29  for instance, the differences in segregation between high and low socio-economic status latinos and asian americans are significantly larger than those among african americans. john iceland, racial and ethnic residential segregation and the role of socioeconomic status 1980-2000, in fragile rights within cities:  government housing and fairness, supra note 21, at 107, 114. the pairing of race and class in the study was designed to control for class and isolate the effect of race. the study found that race continues to play a significant role independent of socio-economic status in producing residential segregation, especially for african americans. id. at 117. 30  see xavier de souza briggs, re-shaping the geography of opportunity: place effects in global perspective, 18 hous. stud. 915 (2003); george c. galster, trans-atlantic perspectives on opportunity, deprivation and the housing nexus, 17 hous. stud. 5 (2002); gregory d. squires & charis e. kubrin, privileged places: race, uneven development and the geography of opportunity in urban america, 42 urb. stud. 47 (2005); rachel g. kleit, neighborhood segregation, personal networks, and access to social resources, in segregation: the rising costs for america, supra note 4, at 237. 31 the relation between employment and residence has been extensively discussed in debates over skills and spatial mismatches and the shift of manufacturing to the suburbs, the sunbelt, and overseas, as well as the relative decline of industrial jobs and rise of the service sector in the u.s. see william j. wilson, the truly disadvantaged (1990); john kasarda, structural factors affecting the location and timing of underclass growth, 11 urb. geography 234-64 (1990). for critiques, see roger waldinger, still the promised city: african americans and new immigrants in postindustrial new york (1999); harry j. holzer, the spatial mismatch hypothesis:  what has the evidence shown?, 28 urb. stud. 105, 105-22 (1991). 75 innovative responses to foreclosures vol. 1:1 see also margery austin turner, residential segregation and employment inequality, in segregation:  the rising costs for america, supra note 4, at 151-66 (while workplaces are less segregated than residences, african americans and latinos still work in different locations than whites. the ratio of jobs to population is higher in primarily white suburbs than in multiracial neighborhoods or those with an african american or latino majority. further, jobs requiring low skill levels are more decentralized than high-skilled jobs, with roughly two-thirds of the low-skill openings located in primarily white suburbs. the geography of employment intersects with the geography of residence to segregate low-skilled workers of color and place them at a disadvantage in discovering and accessing available jobs.). 32  as owners and as renters, african americans are more likely than whites to live in inadequate housing, with conditions such as lead paint, mold, rodents, insects, dampness and cold.  these conditions affect children‟s educational attendance and success, as well as adults‟ work attendance. the location of housing and the attendant neighborhood conditions also affect residents‟ access to recreational facilities, healthy food, and supportive social institutions. dolores acevedo-garcia & theresa l. oyspuk, impacts of housing and neighborhoods on health: pathways, racial/ethnic disparities and policy directions, in segregation:  the rising costs for america, supra note 4, at 197; james krieger & donna higgins, housing and health: time again for public health action, 92 am. j. pub. health 758, 760 (2002); david r. williams & chiquita collins, racial residential segregation: a fundamental cause of racial disparities in health, 116 pub. health rep. 404 (2001).  high debt and unmanageable payments that come with the predatory loans often targeted at african american and latino borrowers may lead to detrimental physical and psychological health effects, especially for those who have difficulty making mortgage payments. see william m. rohe et al., the social benefits and costs of homeownership: a critical assessment of the research 4-11 (joint ctr. for hous. stud., low-income homeownership working paper no. 01-12, 2001), available at http://www.jchs.harvard.edu/publications/homeownership/liho01-12.pdf; sarah nettleton & roger burrows, mortgage debt, insecure homeownership and health: an exploratory analysis, 20 soc. health & illness 753 (2004). 33  school segregation for african american and latino students has been increasing steadily since the 1980‟s, partially because of continuing housing discrimination and persistent residential segregation. gary orfield & chungmei lee, harvard civ. rts. project, brown at 50:  king‟s dream or plessy‟s nightmare? (2004) (on file with the columbia journal of race and law). under current school financing systems, the separation of households along race and class lines leads to unequal resources for schools, generally accompanied by a divergence in the quality of teachers and the preparation of students.  gary orfield & chungmei lee, harvard civ. rts. project, why segregation matters: poverty and educational inequality (2005) (on file with the columbia journal of race and law). housing and neighborhood quality each have significant independent impacts on student outcomes. deborah l. mckoy & jeffrey m. vincent, housing and education: the inextricable link, in segregation: the rising costs for america, supra note 4, at 125, 130; ingrid gould ellen & margery austin turner, does neighborhood matter? assessing recent evidence, 8 hous. pol‟y debate 833 (1997). http://www.jchs.harvard.edu/publications/homeownership/liho01-12.pdf 2011 columbia journal of race and law 76 iii. segregation and the financial collapse scholars have detailed the ways in which overbuilding, highly leveraged refinancings, widespread speculation, poor regulation of mortgage lenders, and the collapse of housing prices all played central roles in the rise in foreclosures across the country.34 scholars also have pointed to the ways in which sub-prime lenders targeted african american and latino communities.35 however, few have identified the ways in which entrenched segregation and the unequal footing of different local governments contributed significantly to the economic conditions that enabled the collapse that began in 2007. segregation was both the product of and a contributor to the development of a two-tiered financial services market.36 in communities of color, the history of redlining and the lack of experience with mainstream banks often limited consumers‟ abilities to shop for and find the best products in the marketplace. at the same time, loan originators frequently received incentives that encouraged them to charge the highest combination of fees and interest that they could extract from a borrower. this system led to unsolicited searches for the most inexperienced borrowers—who were the most easily overcharged—which led to discriminatory racebased targeting. these discriminatory loan terms led to high foreclosure rates and devastating consequences for households unable to keep up with their rising housing costs. these practices also led to millions of dollars in public losses and significantly exacerbated persistent racial disparities in wealth. 34  see, e.g., dan immergluck, foreclosed: high-risk lending, deregulation, and the undermining of america‟s mortgage market (2009); edward l. glaeser et al., housing supply and housing bubbles, 45 urb. stud. 693 (2008). 35  debbie grunstein bocian et al., race, ethnicity and subprime home loan pricing, 60 j. econ. & bus. 1 (2008); elvin k. wyly et al., subprime mortgage segmentation in the american urban system, 99 tijdschrift voor economische en sociale geografie 1 (2007). 36  see george c. galster & w. mark keeney, race, residence, discrimination and economic opportunity: modeling the nexus of urban racial phenomena, 24 urb. aff. q. 87 (1988). while racial residential segregation is partially the product of historic and continuing discrimination in financial services, it also interacted with financial deregulation to foster the expansion of a two-tiered financial services sector. 77 innovative responses to foreclosures vol. 1:1 a. financial deregulation and the commodification of housing over the past three decades, the financial industry succeeded in lobbying congress for broad deregulation of mortgage lending, as well as for the creation of institutional and regulatory frameworks supporting the secondary mortgage market. the deregulation intensified the commodification of urban environments in general and housing markets in particular.37 the 1980 depository institutions deregulation and monetary control act preempted state usury laws and eliminated state limits on the points or fees banks could add to residential mortgage loans. 38 the elimination of these limits expanded access to home loans and created significant new opportunities for lenders to profit, but they also created significant new risks for borrowers. continuing the federal trend to eliminate state consumer financial protections, the 1982 alternative mortgage transaction parity act preempted state laws restricting residential loans to conventional fixed-rate mortgages and thus opened the market to adjustable rate mortgages, interest-only loans, and balloon clauses. 39 once these laws authorized new types of loans and eliminated usury caps, the 1984 secondary mortgage market enhancement act40 augmented the ability of investment banks‟ to invest in new collateralized mortgage obligations, which created the opportunity for a secondary market in mortgages to develop. furthermore, the 1989 financial institutions reform, recovery and enforcement act41 increased capital requirements for savings banks, which encouraged them to sell the home loans that they had originated on the secondary market. in addition, the 1992 federal housing enterprises safety and soundness act42 amended the charters of the federal national mortgage association (fannie mae) and the federal home loan mortgage company (freddie mac) in order to reinforce the stability of these governmentsponsored entities designed to foster confidence in the secondary mortgage market and increase the liquidity of mortgage investments. together, these legislative actions transformed inherently localized, 37  see kathe newman, post-industrial widgets: capital flows and the production of the urban, 33 int‟l j. urb. & reg‟l res. 314, 316-18 (2009). 38  pub. l. no. 96-221, 94 stat. 132 (1980). 39  pub. l. no. 97-320, 96 stat. 1469 (1982). 40  pub. l. no. 98-440, 98 stat. 1689 (1984). 41  pub. l. no. 101-73, 103 stat. 498 (1989). 42  pub. l. no. 102-550, 106 stat. 3941 (1992). 2011 columbia journal of race and law 78 varied, and complex goods—homes—into standardized securities that national and international investors could purchase.43 federal deregulation encouraging investment in real estate together with institutional investors‟ desire to find products with steady returns increased capital flows into the secondary mortgage market and contributed to easier lending terms, which increased demand for housing and led to rising home prices.44 as a result, investors, lenders and homebuyers increasingly came to see housing less as a home and more as an investment vehicle that would only increase in value. real estate investing strategies moved from being the topic of late-night infomercials to popular prime-time cable tv shows such as “flip this house” and “property ladder.” b. two-tiered financial services: redlining and reverse redlining decades of redlining denied predominantly african american and latino communities equal access to mainstream credit.45 after financial institutions created a relative vacuum in communities of color, which lacked access to and experience with mainstream capital, they realized that money could be made by targeting these same neighborhoods for separate and unequal financial products—a process that came to be known as reverse redlining.46 lenders pioneered high-cost alternative mortgage structures at both the highand low-income extremes, and brokers 43  kevin gotham, the secondary circuit of capital reconsidered: globalization and the u.s. real estate sector, 112 am. j. soc. 231, 232 (2006). 44  newman, supra note 37, at 318. 45  see supra note 14 and accompanying text. 46  see, e.g., hargraves v. capital city mortg. corp., 140 f. supp. 2d 7 (d.d.c. 2000) (recognizing reverse redlining as the practice of extending credit on unfair terms to communities that had previously been redlined and finding that these predatory loan practices can make housing unavailable and thus constitute a violation of the fha); matthews v. new century mortg. corp., 185 f. supp. 2d 874 (s.d. ohio 2002) (finding that defendants‟ targeting of elderly, unmarried women homeowners for high-cost home equity loans constituted reverse redlining and was cognizable as violations of the fha and ecoa); barkley v. olympia mortg. co., no. 04-cv-875, 2010 wl 3709278 (e.d.n.y. sep. 13, 2010) (denying defendants‟ motion for summary judgment on reverse redlining and other claims and describing reverse redlining as a situation in which a lender unlawfully discriminates by extending credit to a neighborhood or class of people on terms less favorable than would been extended to those outside of the class). 79 innovative responses to foreclosures vol. 1:1 and lenders then pushed these high-cost products and coercive sales tactics more widely.47 focusing on “borrowers with little knowledge of mortgage lending in general and their own financial options in particular,” lenders employed marketing techniques targeting communities of color that previously had been systematically denied credit and “deliberately sought out financially vulnerable borrowers for deceptive sales tactics and predatory mortgages.”48 extensive evidence of lenders‟ targeting of communities of color and of lenders‟ discriminatory pricing is beginning to emerge in courts from suits alleging violations of state and federal fair lending, human rights, and deceptive practices laws that are currently being litigated by borrowers49 and by state attorneys general.50 recent research has confirmed that racial discrimination has been widespread at each step in the lending process, from 47  subprime loans grew from less than five percent of all home loan originations in 1994 to nearly a quarter of the mortgage market by 2006. schwemm & taren, supra note 28, at 378. 48  linda e. fisher, target marketing of subprime loans: racialized consumer fraud & reverse redlining, 18 j.l. & pol‟y 121, 122, 124 (2009); raymond h. brescia, subprime communities: reverse redlining, the fair housing act, and emerging issues in litigation regarding the subprime mortgage crisis, 2 alb. gov‟t l. rev. 164, 172-73 (2009). see second amended complaint, mayor and city council of baltimore v. wells fargo, no. 08 civ. 62 (d. md. apr. 7, 2010); complaint, city of memphis v. wells fargo, no. 09 civ. 2857 (w.d. tenn. dec. 30, 2009). 49  one case thus far has been granted class certification, ramirez v. greenpoint mortg. funding, inc., no. c08-0369, 2010 wl 2867068 (n.d. cal. july 20, 2010). several other cases have survived defendants‟ motions to dismiss. see e.g., guerra v. gmac llc, no. 08-cv-01297, 2009 wl 449153 (e.d. pa. feb. 20, 2009); steele v. ge moneybank, no. 08-cv-1880, 2009 wl 393860 (n.d. ill. feb 17, 2009); barrett v. h&r block, inc. 652 f. supp. 2d 104 (d. mass. 2009); hoffman v. option one mortg. corp. 589 f. supp. 2d 1009 (n.d. ill. 2008); miller v. countrywide bank, n.a., 571 f. supp. 2d 251 (d. mass. 2008). 50  see, e.g., state of ohio v. barclay‟s capital real estate, no. 09 civ. 10136 (montgomery cnty. ct. c.p. sep. 16, 2010) (denying motion to dismiss complaint alleging violations of state unfair and deceptive practice laws); commonwealth of massachusetts v. countrywide fin. corp., no. 10 civ. 1169 (suffolk cnty. sup. ct. mar. 24, 2010) (approving settlement of case alleging unfair and discriminatory lending practices); commonwealth of massachusetts v. fremont inv. & loan, 897 n.e.2d 548 (mass. 2008) (affirming trial court‟s grant of preliminary injunction preventing defendant from foreclosing on certain “presumptively unfair” loans); complaint, illinois v. wells fargo, no. 09 ch. 2643 (cook cnty. cir. ct. july 31, 2009) (alleging violations of state human rights, fairness in lending, and deceptive business practices laws). 2011 columbia journal of race and law 80 origination to mortgage servicing and foreclosure.51 when compared to white borrowers with similar credit histories, loan-tovalue ratios, personal characteristics, and residential locations, african americans were significantly more likely to receive subprime loans.52 further, african american and latino borrowers were significantly more likely than similarly situated white borrowers to receive loans with less favorable terms including higher cost ratios, prepayment penalties, and balloon payments.53 analysis of national data on segregation, sub-prime lending, and foreclosures reveals that the variation in the rate of subprime loans received by african american and latino borrowers as compared to white borrowers is strongly correlated with the level of segregation in the metropolitan region.54 in other words, national data indicates that the more segregated a metropolitan region is, the more likely african american and latino borrowers were to receive high-cost, subprime loans. c. discretionary pricing and discrimination the correlation between segregation and subprime lending exists partially because national lenders designed compensation systems that incentivized loan officers and brokers to use their discretion to charge higher interest rates and fees than borrowers actually qualified for, rewarding originators with yield spread 51  see, e.g., immergluck, supra note 34, at 78-98; guy stuart, discriminating risk: the u.s. mortgage lending industry in the twentieth century (2003); carolyn bond & richard williams, residential segregation and the transformation of home mortgage lending, 86 soc. forces 671 (2007); elvin k. wyly et al., american home: predatory mortgage capital and neighborhood spaces of race and class exploitation in the united states, 88 geografiska annaler. 105 (2006). 52  robert b. avery et al., the 2007 hmda data, 93 fed. res. bull. 344 (2008). debbie bocian et al., unfair lending: the effect of race and ethnicity on the price of subprime mortgages, 60 j. econ. & bus. 114 (2006); chris mayer & karen pence, subprime mortgages: what, where, and to whom? 14 (fed. res. bd. fin & econ. discussion series, working paper no. 2008-29, 2008), available at http://www.federalreserve.gov/pubs/feds/2008/200829/200829pap.pdf (“even controlling for credit scores and other zip code characteristics, race and ethnicity appear to be strongly and statistically significantly related to the proportion of subprime loans.”). 53  michael lacour-little & cynthia holmes, prepayment penalties in residential mortgage contracts: a cost benefit analysis, 19 hous. pol‟y debate 631 (2008); roberto g. quercia et al., the impact of predatory loan terms on subprime foreclosures: the special case of prepayment penalties and balloon payments, 18 hous. pol‟y debate 311 (2007). 54  jacob s. rugh & douglas s. massey, racial segregation and the american foreclosure crisis, 75 am. soc. rev. 629, 642 (2010). http://www.federalreserve.gov/pubs/feds/2008/200829/200829pap.pdf 81 innovative responses to foreclosures vol. 1:1 premiums and other forms of loan cost-based compensation.55 both lenders and brokers profited when borrowers paid inflated rates—lenders profited from higher interest rates than those justified by the economic risk (which also increased the values of the loan on the secondary market), while brokers collected larger compensation.56 borrowers, however, suffered from significantly higher costs over the life of the loan which then lead to increased risks of default and foreclosure.57 this discretionary pricing structure created a system in which borrowers with prime credit, but lacking financial savvy, were steered into subprime loans,58 thereby predictably leading to widespread discrimination on the basis of race, age, and gender.59 the originators that made the loans, the 55  brokers were often paid through a combination of fees based on a percentage of the loan amount combined with yield spread premiums, which is a portion of the capitalized value of the difference between the minimum base rate at which the lender was willing to make the loan and the higher interest rate that the broker actually secured from the borrower. schwemm & taren, supra note 28, at 395-97. 56  id. at 379. 57  see immergluck, supra note 34, at 133-58 (describing the economic and social costs of subprime lending). lenders frequently made loans where it was unlikely that borrowers could repay. id. at 142-43. market participants frequently assumed house prices would always rise over time, and thus lenders presumed that the original borrower of an adjustable rate mortgage would refinance before their rates adjusted to a higher level that they would be unable to repay (or that if the bank had to foreclose, the home would exceed the value of the loan by then). kristen david adams, homeownership: american dream or illusion of empowerment?, 60 s.c. l. rev. 573, 606 (2009). in the short term, this was not damaging to lenders because they were securitizing the majority of loans and selling them to investors on the secondary market, thus making money from the loan without retaining the risk. u.s. gov't accountability office, home mortgage defaults and foreclosures: recent trends and associated economic and market developments 22-23 (2007). in other cases, loans by predatory lenders targeted towards long-time homeowners with significant home equity actually were designed to lead to foreclosure so that the lender could seize the home and sell it to gain the equity. see, e.g., united states v. delta funding corp., no. 00 civ. 1872 (e.d.n.y. mar. 30, 2000); barkley v. olympia mortg. co., no. 04-cv-875, 2010 wl 3709278 (e.d.n.y. sep. 13, 2010). see also schwemm & taren, supra note 28, at 379. 58  in addition to paying higher interest rates and fees for subprime and predatory loans, lenders also frequently added excessive points and fees that did not correspond to any benefits for the borrowers and included substantial prepayment penalties that trapped borrowers in the high-cost loans. kathleen c. engel & patricia a. mccoy, a tale of three markets: the law and economics of predatory lending, 80 tex. l. rev. 1255, 1259-70 (2002). 59  the combination of discrimination on the basis of race, age, and gender is an example of the intersectionality of discrimination. kimberlé 2011 columbia journal of race and law 82 commercial banks that packaged them into mortgage backed securities, and the investment banks that sold them let a desire for short-term profits triumph over ethics and the basics of long-term financial stability.60 in one of the early cases challenging discretionary pricing policies, plaintiffs claimed that countrywide bank61 allowed its “retail salesmen, independent brokers, and correspondent lenders to add various charges and fees based on subjective non-risk factors, . . . which, in turn, has a racially discriminatory impact on african american borrowers”62 plaintiffs allege that the discretionary pricing system made african american borrowers from countrywide more than three times more likely to receive a subprime loan than similarly situated white borrowers.63 the court found that the facts alleged presented “a classic case of disparate impact: white homeowners with identical or similar credit scores paid different rates and charges than african american crenshaw, mapping the margins: intersectionality, identity politics, and violence against women of color, 43 stanford l. rev. 1241 (1991). see also allen j. fishbein & patrick woodall, consumer fed‟n of am., women are prime targets for subprime lending: women are disproportionately represented in high-cost mortgage market, (2006), available at http://www.consumerfed.org/pdfs/womenprimetargets study120606.pdf; donna s. harkness, predatory lending prevention project: prescribing a cure for the home equity loss ailing the elderly, 10 b.u. pub. int. l.j. 1 (2000). a case that epitomizes this intersecting discrimination is united states v. delta funding corp., no. 00 civ. 1872 (e.d.n.y. mar. 30, 2000). in delta funding, the department of justice, together with the federal trade commission and the secretary of the department of housing and urban development, brought suit against a lender who had engaged in a pattern and practice of targeting elderly african american widows with little or no mortgage debt and then persuading them to take out high-priced refinance loans that they could not afford in order to foreclose on and take their homes in order to strip their home equity. 60  sheila bair, chair, fed. deposit ins. corp., comments at the urban land institute conference (oct. 13, 2010) (on file with the columbia journal of race and law). 61  miller v. countrywide bank, n.a., 571 f. supp. 2d 251, 255 (d. mass. 2008). the case named as defendants countrywide bank, n.a., along with its subsidiaries countrywide home loans, inc., countrywide correspondent lending, full spectrum lending, inc., summit mortgage llc; and loans for residential homes mortgage corp.  bank of america purchased countrywide on july 1, 2008. 62  id. 63  id. at 253. 83 innovative responses to foreclosures vol. 1:1 homeowners, because of a policy that allowed racial bias to play a part in the pricing scheme.”64 in a context of extreme information asymmetries between borrowers and lenders, segregation facilitated the exploitation of those least able to protect themselves from lenders subject to minimal government regulation.65 the result was predictable discrimination in lending, which has had significant nationwide impacts on delinquencies and foreclosures, as well as on homeownership rates and disparities in household wealth. d. disparate impacts in foreclosures as early as the late 1990‟s, high-cost subprime loans accounted for more than half of home loans in predominantly african american neighborhoods, compared with just nine percent in primarily white communities.66 fannie mae estimates that as many as half of subprime borrowers actually qualified for credit at lower prime rates—meaning that hundreds of millions of dollars annually were siphoned away from uninformed, working and middle-class families to mortgage brokers and to investors.67 seen together, these discriminatory lending practices result in african american and latino borrowers who continue in these same loans paying substantially higher interest rates than comparable white borrowers, which means that in the aggregate, they are making billions of dollars in extra, discriminatory payments on their 64  id. at 254. 65  see kathleen c. engel & patricia a. mccoy, from credit denial to predatory lending: the challenge of sustaining minority homeownership, in segregation: the rising costs for america, supra note 4, at 81; william c. apgar & allegra calder, the dual mortgage market: the persistence of discrimination in mortgage lending, in the geography of opportunity: race and housing choice in metropolitan america, supra note 21, at 101-03; newman, supra note 37. 66  james carr & jenny schuetz, financial services in distressed communities: framing the issue, finding solutions 11-12 (fannie mae found., working paper, 2001), available at http://www.knowledgeplex.org/kp/report/ report/relfiles/financialservices.pdf. 67  james carr & lopa kollluri, predatory lending: an overview 37 (fannie mae found., working paper, 2001), available at http://www.knowledge plex.org/kp/report/report/relfiles/financialservices.pdf.  analyses of national lending data have found that as subprime lending increased it included more and more borrowers with prime credit scores. in 2006, more than sixty percent of subprime loans were made to borrowers with prime credit scores. rick brooks & ruth simon, subprime debacle traps even very credit-worthy, wall st. j., dec. 3, 2007, at a1. 2011 columbia journal of race and law 84 mortgages.68 these extra payments simultaneously strip money away from communities of color and ultimately lead to higher foreclosure rates.69 foreclosure often means the loss of significant equity that homeowners had built up in their home, usually their largest asset. both default and foreclosure also drastically lower borrowers‟ credit scores, often leading to significant collateral negative impacts on social and economic opportunities, as credit histories are used increasingly in evaluating applications for employment, rental housing, and access to other forms of capital. foreclosures also have negative emotional and psychological consequences for those households forced to leave their homes, and often their neighborhoods and schools.70 finally, foreclosures are often contributing to further segregation, especially in high value housing markets, where foreclosures are intertwined with gentrification. in addition to having a far-reaching negative impact on individuals and households, foreclosures create significant economic and social costs for neighborhoods, cities, and counties.71 several cities and counties have filed suit alleging that lenders‟ deceptive and 68  schwemm & taren, supra note 28, at 375-76. 69  professor john powell has estimated the loss of equity to subprime borrowers of color facing foreclosure at nearly one quarter of a trillion dollars. john a. powell, reflections on the past, looking to the future: the fair housing act at 40, 41 ind. l. rev. 605, 624 (2008). subprime refinance loans with prepayment penalties have been found to be twenty percent more likely to lead to foreclosure than otherwise similar loans, while those with balloon payments were fifty percent more likely. roberto g. quercia et al., the impact of predatory loan terms on subprime foreclosures: the special case of prepayment penalties and balloon payments, 18 hous. pol‟y debate 311 (2007). 70  g. thomas kingsley et al., the urban inst., the impacts of foreclosures on families and communities (2009), available at http://www.urban.org/uploadedpdf/411909_impact_of_forclosures.pdf; vicki been et al., inst. for educ. & soc. pol‟y, furman ctr., kids and foreclosures: new york city (2010), available at http://furmancenter.org /files/foreclosures_and_kids_policy_brief_sept_2010.pdf. 71  a study of chicago estimated the direct costs to the city for each foreclosed, abandoned property requiring demolition at $30,000, including expenditures cities are forced to make for increased police and fire services, building inspections, sanitation activities, and demolition contracts. william apgar & mark duda, homeownership pres. found., collateral damage:  the municipal impact of today‟s mortgage foreclosure boom (2005) (on file with the columbia journal of race and law). in chicago, foreclosures have been found to reduce the value of homes within one-eighth of a mile by one to one and one-half percent, adding up to an aggregate of $598 million in 1997 and 1998. dan immergluck & geoff smith, the external costs of foreclosure: the impact of single-family mortgage foreclosures on property values, 17 hous. pol‟y debate 57 (2006). 85 innovative responses to foreclosures vol. 1:1 discriminatory loan terms led to unnecessarily high foreclosure rates and millions of dollars in public losses through reduced property tax revenues together with increased spending in response to vacant and abandoned buildings.72 these cases highlight the ways in which the segregation of neighborhoods facilitated further discrimination by enabling community-specific targeting,73 and the ways that these discriminatory lending practices have had significant disparate impacts on communities of color.74 72  see mayor and city council of baltimore v. wells fargo, no. 08 civ. 62 (d. md. sep. 14, 2010) (dismissing plaintiffs‟ suit under the fha for lack of standing because of the lack of traceability of the alleged damages, but finding that “theoretically the city does have viable claims, if it can prove property specific injuries inflicted upon it at properties that would not have been vacant but for improper loans made by wells fargo” and granting the city leave to file a third amended complaint); complaint, city of memphis v. wells fargo, no. 09 civ. 2857 (w.d. tenn. dec. 30, 2009). see also complaint, city of buffalo and byron w. brown v. abn amro mortg. grp., inc., no. 08 civ. 2200 (erie cnty. sup. ct. feb. 20, 2008). but see cleveland v. ameriquest, 615 f.3d 496 (6th cir. 2010) (affirming dismissal of city‟s nuisance action against lenders on the grounds that the connection between the city‟s increased costs in dealing with vacant properties and the lenders‟ misconduct was too indirect to warrant discovery); city of birmingham v. argent, no. 09 civ. 467 (n.d. ala. aug. 19, 2009) (dismissing the case for lack of standing on the ground that the city‟s injuries were too tenuously connected to, and thus not fairly traceable to, the defendants‟ conduct). 73  see second amended complaint paras. 50-56, wells fargo, no. 08 civ. 62 (describing the techniques that wells fargo employees used to target african american neighborhoods, including a drop-down menu of languages in which loan officers could choose “african-american” as a language option for their marketing materials); id. paras. 57-62 (describing the significant financial and other incentives wells fargo created which encouraged loan officers to steer borrowers who qualified for low-cost prime loans into highcost subprime loans and the common practices through which loan officers deceived borrowers into accepting higher cost loans so that loan officers could increase their commissions); complaint para. 60, city of memphis v. wells fargo, no. 09 civ. 2857 (w.d. tenn. dec. 30, 2009) (alleging that within shelby county, tennessee, a wells fargo loan in a predominantly african american neighborhood is eight times more likely to result in foreclosure than a loan in a predominantly white neighborhood). 74  apgar & duda, supra note 71; dan immergluck, community response to the foreclosure crisis: thoughts on local interventions (fed. reserve bank of atlanta, community affairs discussion paper no. 01-08, 2008), available at http://www.frbatlanta.org/filelegacydocs/dp_0108.pdf. experts estimate that more than $500 billion in property value has been lost because of foreclosures on nearby homes. center for responsible lending, soaring spillover:  foreclosures to cost neighbors $502 billion 1 (2009), available at http://www.responsiblelending.org/mortgage-lending/researchanalysis/soaring-spillover-3-09.pdf. 2011 columbia journal of race and law 86 regression analyses of national data have found that the higher the level of african american and latino segregation in a metropolitan region, the higher the number and rate of foreclosures in that same region.75 in fact, jacob rugh and douglas massey‟s analysis indicated, “segregation‟s effect is independent of other economic causes of the crisis, and that segregation‟s explanatory power exceeds that of other factors hitherto identified as key causes.”76 with homes, and home equity lost and credit scores damaged, these individual acts of discrimination cumulate into significant intergenerational impacts that further exacerbate racial disparities in wealth and perpetuate unequal access to opportunity. iv. segregation and fair housing law housing discrimination and unequal access to credit continue to contribute to residential segregation. residential segregation in turn exacerbates social inequality, with high social and economic costs for the country as a whole. the primary tool to combat discrimination is the fair housing act (fha),77 passed in april of 1968 in the aftermath of dr. martin luther king‟s assassination and amended in 1988. as detailed below, however, efforts to enforce the fha are crippled by a combination of lack of awareness by victims of discrimination, low levels of enforcement by the government agencies empowered to implement it, and weak penalties for law-breakers. even more fundamentally, however, the fha can do little to dismantle segregation because the structures that encourage and perpetuate it are legally entrenched in our local government boundaries and home ownership structures. a. limits to current fair housing enforcement 1. low reporting levels recognizing the discrepancy between the significant amount of discrimination experienced and the relatively low number of complaints filed, hud sponsored two studies in 2002 and 2006, which were designed to examine the extent to which the public is 75  jacob s. rugh & douglas s. massey, racial segregation and the american foreclosure crisis, 75 am. soc. rev. 629, 644 (2010). 76  id. 77  42 u.s.c. §§ 3601-3631 (2006). 87 innovative responses to foreclosures vol. 1:1 aware of fair housing laws and whether participants believed they had ever experienced unfair treatment in a housing transaction.78 most prospective renters or homebuyers who are denied housing or are offered unequal terms never know either the reason behind the denial or that someone else was offered the same house on more favorable terms. victims of discrimination often do not know fair housing laws, do not know they have been discriminated against, or both. the current structure of fair housing enforcement, however, places the burden on victims to identify when they have encountered discrimination.79 hud‟s studies confirmed that some groups perceive less discrimination than that documented by national paired-testing studies.80 further, between one-fifth and one-half of the public is not aware of one or more of the discriminatory acts that fair housing laws prohibit.81 even among those who believed that they were discriminated against, four of every five took no action in response.82 the studies further revealed that only thirteen percent 78  martin d. abravanel & mary k. cunningham, the urban inst., how much do we know? public awareness of the nation‟s fair housing laws (2002), available at http://www.huduser.org/publications /pdf/hmwk.pdf; martin d. abravanel, the urban inst., do we know more now? trends in public knowledge, support and use of fair housing law (2006), available at http://www.huduser.org/publications/pdf/ fairhousingsurveyreport.pdf [hereinafter abravanel, do we know more now?]. see also martin abravanel, paradoxes in the fair housing attitudes of the american public, 2001-2005, in fragile rights within cities: government housing and fairness, supra note 21, at 81. 79  see michael schill, implementing the federal fair housing act: the adjudication of complaints, in fragile rights within cities: government housing and fairness, supra note 21, at 143, 151 (arguing that placing the burden of discrimination on the victim creates perverse incentives because “the more sophisticated the violator is, the less likely it is that the victim will successfully identify him or her”). 80  abravanel, do we know more now?, supra note 78, at 33-35 (finding that only six percent of latinos reported perceiving discrimination based on their race or ethnicity, four percent of households with children reported perceiving discrimination based on family status, and less than one percent of persons in households with a disabled individual reported perceiving discrimination based on disability, even though paired testing and other studies indicate discrimination against these groups is significantly more common than their perception suggests). 81  id. at 8-19. 82  id. at 36 (finding that those who were better informed about fair housing laws were more than twice as likely to take action in response to discrimination than those who were less well informed, but that even among http://www.huduser.org/publications/pdf/fairhousingsurveyreport.pdf http://www.huduser.org/publications/pdf/fairhousingsurveyreport.pdf 2011 columbia journal of race and law 88 of the public thinks that it is “very likely” that “good results” would be accomplished from filing a fair housing complaint with hud.83 this belief is, perhaps, one reason for the low number of complaints filed. 2. ad hoc enforcement and weak penalties a study conducted by michael schill has revealed that this widespread skepticism about the efficacy of filing fair housing complaints may be well-founded.84 building on research about the extent of discrimination and the lack of public confidence in the fair housing enforcement system, schill analyzed data on the adjudication of fair housing complaints under existing law.85 he found that only three percent of all claims filed led to hud bringing charges against the respondent, and the number of claims pursued has been declining in recent years.86 in those cases that settled, the average settlement was less than $2,000.87 claims that were adjudicated by hud administrative law judges or in federal court had average awards of less than $10,000.88 based on this data, schill argued that in the current complaint-based system of regulation, fair housing enforcement is unsystematic and penalties are too low to have the broad impact required to reduce discrimination significantly.89 laws such as the fha can have a substantial deterrent effect only under two sets of conditions: (1) if penalties are low, then enforcement must be intensive so that the majority of lawbreakers will face consequences; or (2) if identification and prosecution of the majority of the well-informed three out of four people still took no action in response to discrimination). 83  id. at 43. 84  schill, supra note 79, at 151-56. 85  id. at 143, 151-56. over the past two decades, an average of approximately 7,750 fair housing complaints have been filed annually with hud or with state or local fair housing assistance program agencies. of the claims filed between 1989 and 2003, just over one-third were settled, just under one-third were withdrawn for reasons unrelated to the merits of the case, and about one-quarter were dismissed by hud on the basis of a determination that no cause existed to believe that discrimination had occurred. of the complainants that schill surveyed, 82.9 percent reported that it had taken hud over one year to decide whether or not to issue a charge against the respondent. id. at 160. 86  id. at 154. 87  id. at 158 fig.7.4. 88  id. at 174 n.23. 89  id. at 169. 89 innovative responses to foreclosures vol. 1:1 lawbreakers is not feasible, then deterrence requires high penalties for the few who are caught.90 according to schill, “[c]urrent enforcement of the fair housing act shares neither of these characteristics—very few . . . cases are actually brought (when measured against baseline estimates of the amount of discrimination in the housing market) and the average penalty is exceedingly low.”91 b. limits to fair housing remedies: obstacles to regional responsibility nevertheless, efforts to create truly open access to housing options through civil rights enforcement recently have had significant successes, especially in giving renewed importance to the fha‟s requirement that hud, and any government entities that receive hud funding, “affirmatively further” fair housing.92 in thompson v. u.s. department of housing and urban development, the federal district court found hud liable for having violated its statutory duty to affirmatively further fair housing because it failed to consider adequately regional approaches to reducing racial segregation in public housing in baltimore county.93 the decision is 90  id. 91  id. schill concludes that “[a] move away from individual complaint processing, investigation, and prosecution and toward a greater emphasis on pattern and practice investigations would be most successful if it could engage the energy and expertise of the large number of private fair housing enforcement groups throughout the nation.” id. at 170. see also mara sidney, national fair housing policy and its (perverse) effects on local advocacy, in fragile rights within cities: government housing and fairness, supra note 21, at 203 (analyzing the federal fair housing initiatives program (fhip) that was created by the 1987 housing and community development act, 42 u.s.c. § 3616 (2006); pub. l. no. 100-242, § 561, 101 stat. 1815 (1988), to fund private nonprofit fair housing organizations on an annual competitive basis to undertake enforcement and education activities and finding that the lack of support in private philanthropy for fair housing work, the limited government funding, the annual competitive applications, and shifting federal priorities for grantees mean that “[p]olicies intended to fight injustice in effect help to sustain it by weakening logical local alliances . . . . locally based fair housing advocacy, central to the promotion and execution of civil rights, has become unstable, lacks creative approaches to problems, and relies too heavily on federal as opposed to local resources and support.”). 92  42 u.s.c. § 3608(e)(5) (2006) (“the secretary of housing and urban development shall . . . administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter.”). 93  thompson v. u.s. dep‟t of hous. & urban dev., 348 f. supp. 2d 398 (d. md. 2005). see florence wagman roisman, affirmatively furthering fair 2011 columbia journal of race and law 90 significant both in finding liability under the duty to “affirmatively further” fair housing and in calling for a regional solution. promising results also emerged recently in the settlement among the parties in anti-discrimination center of metro new york v. westchester county, in which the district court confirmed that the duty to affirmatively further fair housing extended to county governments receiving hud funding.94 in that case, the antidiscrimination center of metro new york (anti-discrimination center) brought suit under the false claims act,95 alleging that the county had failed to analyze appropriately the obstacles to fair housing in terms of race, as required for receipt of millions of dollars in hud grants. the court found that westchester county had “utterly failed” to meet its obligations to affirmatively further fair housing and that westchester‟s certifications to hud were “false or fraudulent.”96 the county ultimately settled the case, agreeing to create 750 units of affordable housing. the majority of these units must be built in municipalities with an african american population of less than three percent and a latino population of less than seven percent.97 both of these cases succeeded in winning innovative regional remedies for lack of housing choice by holding accountable entities that have a regional reach—in the first case an agency of the federal government, and in the second case a large suburban county. the outcome of these cases, however, also highlights the way in which the reification of fragmented structures of local governance has been used to effectively immunize local governments from liability for actions that have discriminatory impacts. the court in thompson stated that “[t]hrough regionalization, hud had the practical power and leverage to accomplish desegregation through a course of action that local defendants could not implement on their own, given their own jurisdictional limitations.”98 this absolution of local governments reveals a housing in regional housing markets: the baltimore public housing desegregation litigation, 42 wake forest l. rev. 333 (2007). 94  united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester county, n.y., no. 06 civ. 2860, 2009 wl 455269 (s.d.n.y. feb. 24, 2009). 95  31 u.s.c. §§ 3729-3733 (2006). 96  united states ex rel. anti-discrimination ctr. of metro n.y., inc., 2009 wl 455269, at *14, *22. 97  stipulation and order of settlement and dismissal, united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester county, n.y., no. 06 civ. 2860 (s.d.n.y. aug. 10, 2009). 98  thompson, 348 f. supp. 2d at 462. 91 innovative responses to foreclosures vol. 1:1 significant limitation in the effectiveness of fair housing enforcement.  if courts are unable to look at the impact of individual municipalities‟ decisions together on the region as a whole, it becomes very difficult to hold local governments legally accountable for the entrenched segregation created by their zoning practices and boundaries. similarly, while the anti-discrimination center reached a favorable settlement with the county in its case, the ability to reach a countywide settlement relied on the fact that westchester county received grants from hud that it distributed to its towns and villages.99 those municipalities that receive no hud funding are largely immune from similar suits, and suits against those municipalities that receive funding directly from hud, if successful, would be unlikely to lead to regional or inter-municipal remedies. among other defenses, westchester county claimed that its failure to address impediments to fair housing based on race was part of “a policy of cooperation with municipalities [within the county], in light of what [the county] terms „political reality‟ and due to its belief that cooperation is the most productive avenue for increasing the stock of affordable housing.”100 in other words, the county implied that it was pursuing a strategy of acquiescing to the racially discriminatory actions of the county‟s local governments and excluding african american and latino residents from subsidized housing to gain needed municipal support for the construction of affordable housing for white seniors and other residents whom the towns found acceptable. for example, two municipalities in westchester had passed official resolutions refusing to cooperate with the county‟s affordable housing goals and the majority explicitly looked only to the housing needs of their existing residents, not to the needs of the county or region as a whole.101 despite the fact that one of the driving forces perpetuating segregation within the county was pressure from local governments, the case broke no new ground in holding municipalities responsible for their exclusionary practices in relation to the region.102 99  united states ex rel. anti-discrimination ctr. of metro n.y., inc., 2009 wl 455269, at *2. 100  id. 101  complaint paras. 44-67, united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester county, n.y., no. 06 civ. 2860 (s.d.n.y. apr. 6, 2006). 102  stipulation and order of settlement and dismissal, united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester county, n.y., no. 06 civ. 2860 (s.d.n.y. aug. 10, 2009). the settlement, however, 2011 columbia journal of race and law 92 while advocates and civil rights lawyers should maintain the pressure that cases like these can create for creative regional solutions, these cases illuminate the need to address the institutional framework of local governance as the principal institution organizing the repetitive and structured interactions that limit housing choice. addressing both discrimination and segregation will require adding to the compliance frame of accountability and ensuring that the frame draws on institutional analysis to engage a wider range of norms, actors, and social mechanisms in creating systemic change.103 as legal scholars have argued in the employment context, widespread unconscious or implicit bias interacts with institutional structures to “generate[] inequalities that our current antidiscrimination law is not well equipped to solve,” because of its focus on proscribing primarily the discrete, deviant, and intentionally discriminatory acts of individuals.104 creating truly equal housing opportunity requires going beyond punishing intentional, individual acts to change the institutional structures of local governance that incentivize race and class segregation. it also requires creating more variety in the forms of housing tenure in order to create security for households across the wealth spectrum, as well as stability for neighborhoods with a mix of incomes. v. segregation and the structure of local governance residential segregation continues to be produced through the social and legal architecture of strong private property rights, inter-municipal competition, and fragmented local government financing. while facially discriminatory laws mandating segregated neighborhoods have been overturned, local governance and financing structures, as well as the economic assumptions that did require the county to repeal its law giving municipalities a “right to first refusal” on county land purchases for the construction of affordable housing. id. para. 25(c). it also stated that the county shall “use all available means” to address a municipality‟s failure to promote the objectives of the stipulation. id. para. 7(i). 103  elinor ostrom, understanding institutional diversity (2005) (exploring how institutions influence behavior as well as providing tools for choosing the relevant levels of interaction at which to make institutional change). 104  samuel r. bagenstos, the structural turn and the limits of antidiscrimination law, 94 calif. l. rev. 1, 3 (2006); susan sturm, second generation employment discrimination: a structural approach, 101 colum. l. rev. 458 (2001). 93 innovative responses to foreclosures vol. 1:1 encourage both racial and economic exclusion in suburban neighborhoods, remain. even systematic investigations of builders, brokers, lenders, or landlords who discriminate will not challenge the significant incentives that remain for real estate actors in wealthier, whiter neighborhoods to exclude non-white residents through legal policies such as exclusionary zoning or the refusal to provide public services needed by those who cannot afford them privately.105 thus, one must look beyond fair housing laws and their enforcement to the political and economic structures that perpetuate residential segregation in order to understand and address the persistence of racial discrimination in housing. a. economic localism and local governance charles tiebout and public choice theorists building on his work provide the most influential articulation of the economic assumptions supporting predominant local governance structures.106 tiebout celebrates the highly fragmented structure of local governments and supports the idea that local governments and public services should be funded primarily through local property taxes.107 in tiebout‟s abstract model, residents are consumers who pick a community that best satisfies their preferences for taxes levied and public goods provided.108 consumers‟ power in this model comes primarily from their ability to vote with their feet and 105  see, e.g., cox v. city of dallas, 430 f.3d 734, 739-40 (5th cir. 2005) (dismissing the fha claims of black homeowners alleging that the city knowingly tolerated an illegal landfill in their neighborhood which diminished the habitability of their homes and their ability to sell them “because the service was not „connected‟ to the sale or rental of a dwelling”); steele v. city of port wentworth, ga., 2008 wl 717813, slip op. at *12-13 (s.d. ga. 2008) (dismissing the fha claims of african american residents denied water and sewer services because the court found that the denial of services did not affect the availability of housing); but cf. united farmworkers of fla. hous. project v. city of delray beach, 493 f.2d 799 (5th cir. 1974) (finding that municipality‟s refusal to allow a proposed development to tie into water and sewer system constitutes evidence of prima facie case of racial discrimination); campbell v. city of berwyn, 815 f. supp. 1138, 1143 (n.d. ill. 1993) (finding that the city‟s withdrawal of police protection violates § 3604(b) of the fha). see also robert g. schwemm, cox, halprin, and discriminatory municipal services under the fair housing act, 41 ind. l. rev. 717 (2008). 106  charles tiebout, a pure theory of local expenditures, 64 j. pol. econ. 416, 416-18 (1956); the tiebout model at fifty (william a. fischel ed., 2006). 107  tiebout, supra 106, at 416. 108  id. at 418, 422. 2011 columbia journal of race and law 94 leave municipalities that do not meet their preferences. others have drawn from tiebout‟s model to examine ways in which local governments compete with each other to attract high-income, lowservice-demanding taxpayers by cutting both public services in general and redistributive programs in particular.109 macro-economic changes over the past three decades have reinforced the salience of tiebout‟s theory as well as political support for rational choice approaches to policy-making.110 the past three decades in united states policy have witnessed a number of government initiatives to deregulate financial and other industries, as well as efforts to privatize public goods and encourage greater use of market incentives in government.111 the shift from the manufacturing of commodities to the manufacturing of financial products and the increased centrality of finance and banking to the economy relied on both deregulation and government support for the commodification of housing and the expansion of mortgage 109  see paul peterson, city limits (1981); mark schneider, the competitive city: the political economy of suburbia (1989). this same logic of cities in competition to reduce taxes and public expenditures and to attract wealthy corporate and individual residents also has been applied to cities on a global scale. saskia sassen, the global city: new york, london, tokyo (1991). 110  political and economic theorists have identified a general shift in dominance from the keynesian economic policies and “embedded liberal” capital-labor relations that dominated the first decades of the post-war era towards more laissez-faire and supply-side economic policies, beginning with the stagflation crisis and deindustrialization in the 1970‟s in the united kingdom and the united states. see generally david harvey, a brief history of neoliberalism (2005); monica prasad, the politics of free markets: the rise of neoliberal economic policies in britain, france, germany & the united states (2006); joseph stiglitz, globalization and its discontents (2003). the experience of deindustrialization in u.s. cities in the 1960‟s and 1970‟s was part of the decentralization of economic activity internationally, and was paralleled by the concentration of control and services complexes and a rise in the prominence of the finance, insurance and real estate sectors. the increase in high-level, specialized jobs was accompanied by a larger expansion of low-wage, unskilled positions in both consumer services and in downgraded manufacturing sectors. this reorganization of capital-labor relations was characterized by polarization in the income distribution of the labor force. saskia sassen, the mobility of labor and capital: a study in international investment and labor flow 136 (1988). 111  see generally harvey, supra note 110; david harvey, the urban experience (1989). 95 innovative responses to foreclosures vol. 1:1 lending.112 these policies have devolved increasing responsibilities to state and local governments, while reducing the federal funding they receive to carry out these mandates, thereby strengthening the economic localism tiebout theorized. this devolution has encouraged “entrepreneurial” governance structures and has forced local governments to rely increasingly on “own source revenues,”113 creating incentives to engage in a race to the bottom to attract or retain commercial taxpayers by offering corporate tax-breaks and reducing property taxes, while reducing the provision of public goods and services.114 this shift to increasing local responsibilities and simultaneously decreasing local aid adds to the already powerful incentives for race and class based segregation by encouraging localities to implement policies that will augment their tax base by seeking to attract wealthier homeowners while excluding vulnerable households. these pro-development policies also contributed to the “exuberance” that led to the creation of the housing bubble, as individuals, investors and local governments all depended increasingly on the promise of rising property values.115 112  greta krippner, the financialization of the american economy, 3 socio-econ. rev. 173 (2005); gotham, supra note 43, at 231-75; newman, supra note 37. 113  see, e.g., david harvey, from managerialism to entrepreneurialism: the transformation in urban governance in late capitalism, 71 geografiska annaler. series b, human geography 3 (1989); rachel weber, extracting value from the city: neoliberalism and urban development, in spaces of neoliberalism 172 (neil brenner & nikolas theodore eds., 2002) (arguing that in competing to attract investors, urban governments‟ land use activities have sometimes been reduced to preparing urban property for the extraction of value by developers in the hopes that current redevelopment will lead to future increases in tax revenues). 114  john mollenkopf, the contested city (1983); john r. logan & harvey l. molotch, urban fortunes: the political economy of place (1987); state restructuring and local power: a comparative perspective (chris pickvance & edmond preteceille eds., 1991). at the same time, there are many exceptions to this general trend: cities and states have increasingly tried to demand more accountability from corporations in exchange for the benefits they receive and efforts at regional governance have had significant successes. see, e.g., jennifer gilbert, selling the city without selling out: new legislation on development incentives emphasizes accountability, 27 urb. law. 427 (1995); see also the work of organizations such as good jobs first (www.goodjobsfirst.org) and jobs with justice (www.jwj.org ). nevertheless, the tiebout model and the policy orientation of cities in competition that it supports remains dominant. 115  robert j. shiller, irrational exuberance 1 (2000) (quoting alan greenspan, chairman, fed. reserve, the challenge of central banking in a democratic society, address before the american enterprise institute for public policy research, washington, d.c. (dec. 5, 1996), http://www.federalreserve. 2011 columbia journal of race and law 96 b. grounds for rejecting localism 1. equitable grounds while theories of cities116 in competition may describe some of the problems facing municipalities, that descriptive power does not translate into a normative justification for the current structure of local governments.117 tiebout argues that municipalities should be understood to be products like any other and describes municipal differences as the result of efforts to cater to idiosyncratic “preferences.”118 the reality, however, is that governments are not commodities, citizens are not consumers, and there is no true market for legislative bodies or administrative agencies. inter-local conflicts over land use regulation119 and school finance reform120 are gov/boarddocs/speeches/19961205.htm) (asking “ . . . how do we know when irrational exuberance has unduly escalated asset values, which then become subject to unexpected and prolonged contractions . . . ?”)). 116  cities and regions are not actors in themselves, and the references to cities and regions in this article serve as shorthand for local governments and political and economic leaders that do act. see peter marcuse, ‘the city’ as perverse metaphor, 9 city 247, 252 (2005). 117  as richard briffault points out, tiebout‟s focus on the central role of the mobile “consumer-voter” that chooses residence based on the combination of taxes levied and services provided encourages local governments to respond by competing with each other and catering to the needs of those who threaten to leave for another municipality with lower taxes: “[t]he individuals who drive the system and make it work are the ones who leave . . . [and] it is unclear why we should want a local government system in which the critical actors are those with the weakest ties to the locality.” richard briffault, our localism: part ii—localism and legal theory, 90 colum. l. rev. 346, 415-16 (1990) [hereinafter briffault, our localism]. 118  tiebout suggests that this public choice theory of local expenditures “reveals the consumer-voter‟s demand for public goods” and that “[s]patial mobility provides the local public-goods counterpart to the private market‟s shopping trip.” tiebout, supra note 106, at 420, 422. 119  see, e.g., austin indep. sch. dist. v. city of sunset valley, 502 s.w.2d 670 (tex. 1973) (addressing conflicts between a local school district and a city over the city‟s efforts to prohibit the location of school facilities within its boundaries); vill. of barrington hills v. vill of hoffman estates, 410 n.e.2d 37 (ill. 1980) (granting standing to a village to sue the neighboring village challenging its rezoning along the municipal boundary). see also shelley ross saxer, local autonomy or regionalism? sharing the benefits and burdens of suburban commercial development, 30 ind. l. rev. 659 (1997). 120  see, e.g., dupree v. alma sch. dist. no. 30, 651 s.w.2d 90, 93 (ark. 1983) (finding that the statutory method of financing public schools in arkansas “bears no rational relationship to the educational needs of the individual districts, rather it is determined primarily by the tax base of each district”); edgewood indep. sch. dist. v. kirby, 777 s.w.2d 391, 397 (tex. 97 innovative responses to foreclosures vol. 1:1 two of the most visible externalities and market failures inherent in current structures of local governance that help explain why we turn to representative democracy at multiple scales to help structure our social relations at the municipal level.121 the variation between different municipalities‟ taxing and spending decisions—while shaped by citizens‟ preferences—are determined largely by differences in local fiscal capacity that place municipalities within each metropolitan area on highly unequal footing. indeed, the financial capacity of local governments depends often on the locational decisions of industrial, commercial, and financial firms and on broad regional, national or international economic developments that are beyond their control. structuring local governments around theories of economic localism and inter-municipal competition benefits those areas that are already wealthy at the expense of those regions that are socioeconomically diverse, working class, or poor. the united states has one of the most fragmented structures of local government in the world with more than 90,000 local governments and an average of over one hundred local governments per metropolitan area.122 this proliferation of local governments is far from random; it almost goes without saying that local government boundaries frequently serve as boundaries between different socio-economic groups. this fragmentation then is often used to reinforce segregation by both income and race and it further exacerbates inequality in access to resources, as it forces cities and towns into competition with each other to maximize investment and minimize social expenditures.123 as richard briffault points out, “economic localism reflects and reinforces existing interpersonal and inter-local inequalities . . . . [i]f the amelioration of inequality is to remain an important value in our 1989) (holding that “the state‟s school financing system is neither financially efficient nor efficient in the sense of providing for a „general diffusion of knowledge‟ ” and thus violates the texas constitution, especially given that “[p]roperty-poor districts are trapped in a cycle of poverty from which there is no opportunity to free themselves”). see also richard briffault, the role of local control in school finance reform, 24 conn. l. rev. 773 (1992); dorothy brown, deconstructing local control: ohio’s contribution, 25 cap. u. l. rev. 1 (1996). 121  peter dreier et al., place matters: metropolitics for the twenty-first century (2001); richard briffault, the local government boundary problem in metropolitan areas, 48 stan. l. rev. 1115 (1996); todd swanstrom, what we argue about when we argue about regionalism, 23 j. urb. aff. 479, 481 (2001). 122  richard briffault & laurie reynolds, state and local government law 8 (7th ed. 2009); swanstrom, supra note 121, at 483. 123  kenneth newton, american urban politics: social class, political structure and public goods, 11 urb. aff. q. 241, 244-45 (1975). 2011 columbia journal of race and law 98 legal and political culture, then economic localism cannot provide a sufficient normative basis for protecting, let alone extending, local autonomy.”124 while market forces may foster geographical clustering by income, what is most problematic is the manipulation of municipal boundaries to isolate those clusters from responsibility for their advantage and their neighbors‟ relative disadvantage that is most problematic. indeed, wealthy communities often use economic gerrymandering to set themselves jurisdictionally and financially apart. 2. economic grounds in addition to the strong arguments for rethinking the fragmentation of metropolitan areas based on equality and fairness grounds, there are also arguments based on the economic selfinterest of both suburbs and cities. as economic competition is 124  briffault, our localism, supra note 117, at 425. this conception of localities in perpetual competition, forced to engage in a perpetual race to the bottom, however, has been questioned at both the local and the global level. see james defilippis, unmaking goliath: community control in the face of global capital (2004) (discussing actions local communities can perform to control their environments in a global economy); jennifer robinson, ordinary cities: between modernity and development (2006); michael peter smith, transnational urbanism: locating globalization (2001). smith provocatively claims that the discourse of cities in global competition “actually creates the powerlessness that it projects by contributing to the hegemony of prevailing globalization metaphors of capitalism‟s global reach, local penetration and placeless logic.” id. at 58. smith suggests instead that most economic relations are actually highly territorialized. id. at 58-59. see also janet abu-lughod, comparing chicago, new york and los angeles: testing some world city hypotheses, in world cities in a world system (paul knox & peter taylor eds., 1995); michael storper, territories, flows and hierarchies in the global economy, in spaces of globalization: reasserting the power of the local (kevin cox ed., 1997). focusing on the territoriality of economic relations, defilippis analyzes informal employment sectors that one might imagine to be vulnerable to intermunicipal competition, such as domestic work, home health care, building services, restaurants, laundries, residential construction and garment manufacturing. james defilippis, on globalization, competition and economic justice in cities, in searching for the just city: debates in urban theory and practice (peter marcuse et al. eds., 2009). of these industries, defilippis finds that only one is shaped directly by extra-local competition— garment manufacturing. the rest of these goods and services are all produced and consumed locally, leading defilippis to argue that the long term sources of economic injustice continue to be rooted in relationships between capital and labor within a given locality. 99 innovative responses to foreclosures vol. 1:1 increasingly globalized, it is also increasingly regional, and regional reforms are required to maintain economic competitiveness.125 urban downtowns are often the engines of regional economic growth, and the economic well-being of suburban residents arguably depends on the health of central cities.126 more importantly, edward glaeser found in a national study of regional economic development that a flexible and varied housing supply was “the key determinant of regional growth.”127 glaeser suggested, “[a] more regional approach to housing supply might reduce the tendency of many localities to block new construction” and in the process impose costly externalities on their neighbors.128 not only is fragmentation problematic, but also inequality itself may further reduce economic growth as studies have found that those regions with greater income inequality have slower income and population growth as well as increased crime and decreased reports of happiness.129 regionalism in the united states has taken many forms, from elected regional governments to informal cooperation among municipalities. the crucial question in regional governance is what powers exist at which level of government.  thus, local governments and the benefits of local democracy can be maintained at the same time as limited powers important to metropolitan equity and efficiency are transferred to entities at a regional level.130 for 125  allan d. wallis, regions in action: crafting regional governance under the challenge of global competitiveness, nat‟l civic rev., spring/summer 1996, at 15-16. see also neil brenner, new state spaces: urban governance and the rescaling of statehood (2004); annalee saxenian, regional advantage: culture and competition in silicon valley and route 128 (1996); michael storper, the regional world: territorial development in a global economy (1997). 126  richard voith, do suburbs need cities?, 38 j. reg‟l sci. 445, 462 (1998) (finding statistically significant positive correlations between both suburban incomes‟ housing prices and the growth of income in the relevant central city); john a. powell, race and space: what really drives metropolitan growth, brookings rev., fall 1998, at 20-21 (“a failure to address centralcity problems affects the entire region adversely. the failure to adopt regional strategies adversely affects the central cities.”). 127  edward glaeser, do regional economies need regional coordination? 1 (harv. inst. of econ. research, working paper no. 2131, 2007), available at http://www.economics.harvard.edu/pub/hier/2007/hier2131.pdf. 128  id. 129  edward l. glaeser et al., urban inequality (nat‟l bureau of econ. research, working paper no. 14419, 2008) (on file with the columbia journal of race and law). 130  powell, supra note 126, at 21 (“we need a regional approach that gives cities or communities a way to maintain appropriate control of their 2011 columbia journal of race and law 100 example, residents of portland, oregon, have created an elected regional government with land-use and transportation planning powers as well as responsibility for parks and civic amenities.131 similarly, building from the minneapolis-st. paul area‟s twin cities metropolitan council, minnesota‟s “metropolitics” coalition in the state legislature enacted regional fair-share housing bills and regional revenue-sharing formulas to pool tax revenues from high-end housing.132 more often, regionalism takes the form of limited regional special purpose districts or ad hoc collaborative projects among municipalities. recently, advocates also have pointed toward the role of community-based organizations as agents of regional reform.133 this diversity of approaches to regionalism fits with the federalist tradition of states and local governments as “laboratories of democracy” and allows varied responses to different regional contexts. regionalism does not guarantee equity and will not eliminate discrimination; regional bodies can also discriminate. nevertheless, some problems are most effectively dealt with at the regional level. residential segregation, foreclosure prevention, neighborhood stabilization, and inequalities between local governments are all interconnected issues that are best addressed regionally. vi. challenging economic localism addressing segregation requires more than new strategies for the enforcement of existing fair housing laws, although that remains an essential first step. confronting the conditions that led to the credit collapse requires more than new consumer protection regulations,134 although that is a crucial start. both require addressing the political and economic context of spatial segregation on the basis of race and class. both also require thinking creatively political and cultural institutions, while sharing in regional resources and balancing regional policymaking.”). 131  gerald e. frug, beyond regional government, 115 harv. l. rev. 1763, 1777-78 (2002); carl abbott, the portland region: where city and suburbs talk to each other—and often agree, 8 hous. pol'y debate 11 (1997). 132  myron orfield, metropolitics: a regional agenda for community and stability 104-55 (1997). 133  todd swanstrom & brian banks, going regional: community-based regionalism, transportation, and local hiring agreements, 28 j. plan. educ. & res. 355 (2009). 134  see the wall street reform and consumer protection act, pub. l. no. 111-203, 124 stat. 1376 (2010). 101 innovative responses to foreclosures vol. 1:1 about the role of housing in the national economy and personal finances. segregation continues to be entrenched by governance structures that are arguably unwise from a regional development perspective, but that are not illegal. thus, attention must be focused on the incentives that encourage segregation (such as fragmented local governments with strong land use powers, as well as taxation and financing structures that encourage speculation in real property), and contrasting incentives that can encourage collaboration among municipalities within a region and foster more equitable development. many urban actors seemingly have given up on advocating for regionalism given its complicated implications for democratic participation and the often entrenched opposition from wealthy suburban voters.135 but the high foreclosure rate and the tremendous economic dislocation of the foreclosure crisis may provide new opportunities for regional collaboration regarding metropolitan housing markets. the steep decrease in home values and rise in abandonment create new opportunities for municipalities, community development corporations (cdcs), and community development financial institutions (cdfis) to work together to acquire properties at a discount, rehabilitate them, and preserve them as homes that are permanently affordable in a form that can help stabilize distressed neighborhoods. 135 while regional approaches to public policy have widespread support among urban planners and many public policy analysts, it has also faced significant opposition. regionalism engages inherently with the question of the right scale for government, small enough for citizens to have an impact on decision-making but large enough for those decisions to have an effect on social issues. larger regional governments are criticized for reducing citizen participation and government responsiveness. regionalism also faces the daunting hurdle of entrenched local government bureaucracies and the tremendous investments that wealthy municipalities have in continuing to exclude others and control resources. see briffault & reynolds, supra note 122. if one could claim a recent heyday for regionalism, it seems to have been in the last decade of the last century, as mayors, state legislators, architects, legal academics, and public intellectuals published books and articles pressing the regional agenda. peter calthorpe & william fulton, the regional city: planning for the end of sprawl (2001); anthony downs, new visions for metropolitan america (1994); gerald frug, city making: building communities without walls (1999); orfield, supra note 132; david rusk, cities without suburbs (1993); reflections on regionalism (bruce katz ed., 2000); briffault, our localsim, supra note 117. 2011 columbia journal of race and law 102 a. regional experimentation in foreclosure prevention unprecedented numbers of foreclosures have hit both city centers and suburban areas and the effects of increasing abandonment and vacancies are only beginning to be felt. the destabilizing effects of subprime lending and foreclosures on homeownership and on home values have not been confined to neighborhoods of color but have affected surrounding white and mixed-race neighborhoods as well.136 while suburban municipalities sometimes have a brighter fiscal outlook than large central cities, suburbs often lack the civic infrastructure, particularly the network of housing nonprofits and government agencies with experience in housing policy, which is required to prevent foreclosures and minimize the neighborhood impact when they do occur.137 abandoned properties impose significant direct costs on local governments that become responsible for securing and maintaining them, and they have destructive effects on neighborhood safety and quality of life. at the same time, the diffuse nature of the ownership of many of these properties and the legal challenges in acquiring clear title requires a skill-set that is difficult and time-consuming for those unfamiliar with the process to develop. further, it can be especially challenging for community development corporations or city agencies to acquire financing to buy properties in foreclosure at a time when housing values continue to decline. finally, the skills to quickly redevelop abandoned and deteriorated units in an affordable and equitable manner are both crucial and difficult to find. an effective response depends on these strong infrastructures of linked public, private, and nonprofit housing and community development actors. the need for these infrastructures is a significant impetus for collaboration, especially between central cities, declining inner-ring suburbs, and rapidly developing low-tax capacity exurbs.138 136  jenny schuetz et al., neighborhood effects of concentrated mortgage foreclosures, 17 j. hous. econ. 306 (2008). 137  todd swanstrom et al., regional resilience in the face of foreclosures: evidence from six metropolitan areas (macarthur found. research network on bldg. resilient regions, working paper no. 2009-05, 2009), available at http://metrostudies.berkeley.edu/pubs/reports/2009-05.pdf. 138  for the definition of exurb, see arthur c. nelson & kenneth j. dueker, the exurbanization of america and its planning policy implications, 9 j. plan. educ. & res. 91, 93 (1990) (noting dictionary definition of an exurb as „a region, generally semi-rural, beyond the suburbs of a city, inhabited largely by persons in the upper income group . . . [and an exurbanite as] a person 103 innovative responses to foreclosures vol. 1:1 over the past two years, the federal government has allocated almost six billion dollars to the neighborhood stabilization program (nsp) to provide emergency assistance to state and local governments in acquiring and redeveloping foreclosed properties that otherwise might become sources of abandonment and blight.139 the financing can be used by local governments to purchase foreclosed or abandoned homes and to rehabilitate, resell, or redevelop these homes in order to stabilize neighborhoods and stem the decline of house values. the funding available to local governments through the nsp could catalyze efforts both to explore alternative homeownership structures and to create new incentives for regional cooperation. in neighborhoods that were formerly flooded with high-cost financial products, individual buyers and non-profit developers now face obstacles accessing conventional financing for the acquisition and redevelopment of housing, even if the projects have sufficient equity or public subsidy. given the limited access to conventional financing, distressed properties then will often be purchased by speculative, absentee, “all cash” investors unlikely to make quality repairs and invest in the neighborhood for the long-term, thereby leading to further neighborhood deterioration and further decreases in regional home values. this situation means that public investment in the targeted neighborhoods is essential to stabilize them, connect them to streams of finance from cdfis or other lenders, and reconnect them with the comparatively stronger regional labor and housing markets. living in an exurb, especially one commuting to the city as a business or professional person‟ ”) (internal citations omitted). such an alliance of working and middle-class neighborhoods within a region can also undertake joint legislative efforts for regional property tax sharing and a redirection of government infrastructure spending from the wealthiest neighborhoods on the urban fringe to those neighborhoods most affected by foreclosures. see also orfield, supra note 132. 139  the neighborhood stabilization program was initially established by the housing and economic recovery act of 2008, pub. l. no. 110-289, 122 stat. 2654 (2008), with a $3.92 billion allocation and expanded in the american recovery and reinvestment act of 2009, pub. l. no. 111-5, 123 stat. 115 (2009), with a further $2 billion. the funding can be used for the establishment of financing mechanisms for the purchase of foreclosed homes, the purchase and rehabilitation of abandoned or foreclosed homes, land banking of foreclosed homes, demolition of blighted structures, and redevelopment of vacant or demolished property. neighborhood stabilization program funding, however, has been dwarfed by the seventy-five billion dollar making home affordable program, which largely reinforces the status quo by giving lenders money to incentivize them to modify existing loans. 2011 columbia journal of race and law 104 1. cross-border collaboration in the nsp140 the city of newark, new jersey and many of its surrounding suburbs have been creating innovative regional publicprivate collaborations to address foreclosures since before the credit crisis began in earnest. conscious of the rising foreclosure rate, the city worked with essex county, neighboring municipalities, and non-profit organizations from throughout the metropolitan area in the fall of 2007 and created a foreclosure prevention taskforce. the taskforce worked on a range of foreclosure issues, from homebuyer counseling to foreclosure prevention to mitigating the impact of foreclosures on neighborhood quality of life. the partners who had begun working together in the foreclosure prevention taskforce decided to prepare a joint application to hud for the second round of nsp funding in 2009. the application included the city of newark, essex county, the city of east orange, the city of irvington, the city of montclair, and the township of orange, as well as eight community-based organizations, three housing developers, and the community loan fund of new jersey. the partners recognized that the housing markets in newark and the surrounding towns and suburbs are closely intertwined and that the foreclosure crisis is truly a regional problem. furthermore, many of the towns and suburbs realized that they did not have a strong chance of winning significant resources in the application process unless they collaborated with newark, while newark felt that submitting a regional application would make the submission more competitive.141 while the partnership does not necessarily bridge the gap to include higherincome, predominantly white exurbs to which many white former newark residents had moved decades before, the partnership between an inner-city, a number of its surrounding suburbs, and the wealthy surrounding county still highlights the ways in which urban and suburban municipalities within a metropolitan region can benefit from regional cooperation.142 140  the author obtained the information contained in this section relating to the neighborhood stabilization program (nsp) through in-person interviews with stephanie greenwood on february 21, 2010 and october 20, 2010. see generally interview with stephanie greenwood, cmty. dev. manager, newark dep‟t of econ. & hous. dev., in newark, n.j. (feb. 21, 2010, oct. 20, 2010) (on file with the columbia journal of race and law). 141  id. at 4. 142  essex county is a relatively affluent county with average household incomes of $69,232 in 2007, compared to a national average of $63,211. u.s. census bureau, american community survey 2006-2008, 105 innovative responses to foreclosures vol. 1:1 the partners appreciated the need to target strategically the limited financial resources to maximize their impact and felt that a comprehensive approach to neighborhood development could support housing rehabilitation with public infrastructure investment and connections to employment and training initiatives. to target the resources effectively, the partners identified those census tracts where high levels of foreclosures and abandonment overlapped with the presence of an established community organization that could oversee the rehabilitation process and locations where the public efforts could realistically leverage further public and private investment to multiply their effect.143 several of the eleven neighborhoods selected crossed municipal lines, further highlighting the reality that the problem and its solutions are regional in nature.144 the collaboration has brought significant benefits to the partners, from increased ability to access resources to increased capability to recognize shared problems and draw on a broader skills base to address them. for instance, suburban non-profits and housing developers seeking to leverage the nsp funds to access other financing have been drawing on the expertise of urban groups that are more accustomed to piecing together financing for affordable housing rehabilitation from multiple sources.145 the collaboration also has opened space for discussion about the distrust available at http://factfinder.census.gov/home/saff/main.html?_lang=en. nevertheless, it has been significantly affected by the foreclosure crisis, not primarily because of speculative over-development but because of subprime and predatory lending, which are often targeted at middle-class african american communities with significant home equity. sixty percent of all mortgage originations in the nsp targeted neighborhoods between 2005 and 2007 were high-cost, subprime loans. newark/essex nsp2 consortium, neighborhood stabilization program ii application, 1 (2009), http://www.ci.newark. nj.us/userimages/downloads/nsp2_nsp2application.pdf (based on an unpublished analysis of home mortgage disclosure act data by assistant professor katherine newman, edward j. bloustein school of planning and public policy, rutgers university). by 2009, more than one-quarter of the subprime loans originated in these neighborhoods between 2005 and 2007 were already in foreclosure. id. at 1. while it is neighborhoods like these with large numbers of high-cost refinancings that have been hardest hit, rising unemployment and declining home values mean that foreclosures are increasingly spreading to more affluent suburbs, creating even more of an impetus for regional collaboration. 143  newark/essex nsp2 consortium, neighborhood stabilization program ii application overview, 4 (2007), http://www.ci.newark.nj.us/user images/downloads/nsp2_nsp_ii_application_overview.pdf. 144  greenwood, supra note 140, at 4. 145  id. at 4-5. http://factfinder.census.gov/home/saff/main.html?_lang=en http://www.ci.newark.nj.us/userimages/downloads/nsp2_nsp2application.pdf http://www.ci.newark.nj.us/userimages/downloads/nsp2_nsp2application.pdf http://www.ci.newark.nj.us/userimages/downloads/nsp2_nsp_ii_application_overview.pdf http://www.ci.newark.nj.us/userimages/downloads/nsp2_nsp_ii_application_overview.pdf 2011 columbia journal of race and law 106 that has existed between governments within the region, where smaller towns sometimes feel that newark consumes a disproportionate share of state resources and does not consult with neighbors on projects of shared interest.146 closer relationships among local leaders has enabled the sharing of data and of best practices and has laid the groundwork for a richer understanding of the regional housing market as well as opportunities for collective responses. one of these collective responses has been the ability of municipalities to learn from each other in making use of new legislation such as the state-wide abandoned properties rehabilitation act,147 which allows municipalities to take vacant properties in need of rehabilitation into receivership and redevelop them as affordable or workforce housing. newark has taken the lead in using this statute to address abandoned buildings and transform them into affordable housing, and neighboring towns have been meeting with newark officials to learn how to use the statute in their towns.148 in trying to take advantage of the down-market period to preserve affordable housing, municipalities are looking into creating land banks and community land trusts to purchase sites for affordable housing, until the housing market returns to previous levels. municipalities are buying these sites in order to prevent speculators from buying up and sitting on properties that then could become neighborhood hazards. similarly, in situations where there are a number of abandoned properties in a small radius, which are owned by the same bank and which have been foreclosed on, local governments are investigating options for low-rise, scattered-site, limited-equity, cooperative housing.149 146  id. at 3-4. 147  n.j. stat. ann. § 55:19-98 (west 2003) (effective jan. 8, 2004) (empowering municipalities to seek possession of abandoned property through the courts after giving the owner the opportunity to rehabilitate the abandoned property, granting municipalities recourse to recover funds spent for repairs or demolition from any other assets of the owners, and defining an “abandoned property” as any property that has not been legally occupied for six months and is either (a) in need of rehabilitation, (b) uncompleted, (c) in tax arrears, or (d) determined to be a nuisance). 148  greenwood, supra note 140, at 5 (noting that the threat of condemnation also has been effective in forcing owners to come forward and fix other abandoned properties threatened with condemnation). see also alan mallach, bringing buildings back: from abandoned properties to community assets (2006). 149  greenwood, supra note 140, at 6. 107 innovative responses to foreclosures vol. 1:1 2. discounted bulk purchases of distressed notes for affordable housing another innovative example of regional collaboration related to the essex county foreclosure prevention taskforce has been the successful effort by leaders of state-wide housing intermediaries, local cdcs, and a local cdfi to create a new model for foreclosure response: the community asset preservation corporation (capc). capc is a non-profit organization created to stabilize neighborhoods by buying distressed notes in bulk from lenders and then assisting existing homeowners to preserve their assets and financial integrity by avoiding foreclosure while also returning vacant foreclosed properties to productive and affordable reuse in an efficient and equitable manner.150 local community developers and housing experts saw two significant obstacles to effective community revitalization: 1) the lack of accessible and flexible capital available for the strategic acquisition and redevelopment of properties in the foreclosure process, and 2) a lack of capacity in local cdcs to take advantage of a bulk-purchase strategy in order to rapidly acquire, develop, and return to use properties scattered throughout the region.151 in response, the group conceived and designed capc, partnered with an experienced local cdc, and approached jpmorgan chase to negotiate over the bulk purchase of a portfolio of forty-seven nonperforming mortgages at a steep discount.152 a statewide cdfi, new jersey community capital, contributed fifty-two percent of the equity and the partner cdc committed the remainder, supporting a total project 80/20 debt-to-equity ratio.153 approximately seventy percent of the ninety-three units are currently being developed into affordable rental or homeownership opportunities, and capc has already been able to pay down $1 million of the $3.6 million in debt for the project ahead of schedule.154 150  community asset preservation corporation, application to the national community stabilization trust reo capital fund for acquisition and rehabilitation financing, 3 (on file with the columbia journal of race and law). 151  id. at 1-2. 152  harold simon, the community asset preservation corporation: a new approach to community revitalization, in reo and vacant properties: strategies for neighborhood stabilization 123 (fed. reserve bank of boston, fed. reserve bank of cleveland & fed. reserve bd. eds., 2010). 153  id. at 127. 154  id. 2011 columbia journal of race and law 108 capc drew on regional and state-wide resources and partnered an experienced cdfi with capable cdcs. as a result, capc was able to evaluate carefully the rehabilitation costs and exit strategies for the properties, secure flexible financing, and negotiate a steeply discounted bulk purchase price that would enable the majority of the properties to be sold or rented to low and moderate income households. capc then was able to bring the project to fruition by acquiring clear title and renovating the units or transferring them to responsible redevelopers.155 both the newark and capc experiences are examples of municipalities, cdfis, and cdcs collaborating to engage residents and address foreclosures regionally. while housing markets are regional, the competence and capacity to respond to foreclosures are concentrated in urban areas, even as the need to open up affordable housing opportunities exists in suburban areas. responses to foreclosures present an opportunity to enhance both equity and efficiency through regional collaboration. while not without challenges,156 discounted bulk purchases of distressed notes spread throughout a region encourage regional collaboration across the public and private nonprofit sectors, and they create affordable scattered-site housing that opens up new opportunities to challenge segregation. in order to maximize the value of the equity invested and make these housing opportunities permanently affordable, more can be done to experiment with alternative forms of tenure as well. b. shared-equity homeownership structures as the newark example shows, creative thinking about neighborhood stabilization creates the potential to pilot sharedequity ownership structures. for example, limited equity housing cooperatives and community land trusts could return the focus on housing to its role as a home and as part of a neighborhood, not as an investment vehicle. the foreclosure crisis has highlighted the need in the market for both intermediary steps between renting and owning as well as more supportive ownership structures. shared equity housing that intermediates between individual buyers and the property can fill these needs. 155  community asset preservation corporation, supra note 150, at 5. 156  challenges raised by the capc example include the difficulty of quickly negotiating a competitive purchase price, the obstacles to rehabilitating buildings across a widely scattered area, and the limited impact such dispersed efforts have on the stabilization of any one neighborhood. 109 innovative responses to foreclosures vol. 1:1 1. rethinking dominant homeownership models emblematic of the sea change in popular attitudes, a recent time magazine cover entitled “the case against homeownership” emphasizes the negatives aspects of homeownership.157 as the article pointed out, homeownership has been promoted and subsidized by the government for ideological reasons during a period extending from the cold war, when franklin roosevelt told the nation that a country of homeowners was “unconquerable,” to the 1990‟s when george h.w. bush‟s secretary of housing and urban development, jack kemp, suggested that homeownership could “save babies, save children, save families and save america.”158 this ideological trend continued through george w. bush‟s more recent promotion of homeownership as part of the “ownership society.”159 as historian robert self has argued, [t]he detached, single-family home ha[s] been elevated in popular culture as the preeminent symbol of both independence and assimilation. together, markets and culture—and later, electoral politics—encouraged homeowners . . . to identify property ownership first and foremost in terms of their own individual financial interests . . . . [h]omeownership stood at the core of political identification, and small property holders emerged as the most important social class and political constituency.160 in the washington post, however, veteran business journalist robert j. samuelson recently went so far as to argue that “[t]he relentless promotion of homeownership as the embodiment of the american dream has outlived its usefulness.”161 the commoditization of housing after the second world war was essential to the creation of a middle-class and to the 157  barbara kiviat, the case against homeownership, time, sep. 6, 2010, at 40. 158  id. 159  id. 160  self, supra note 15, at 99. 161  robert j. samuelson, how a homeownership fetish hurt the american dream, wash. post, aug. 23, 2010, at a13. see also georgette chapman phillips, an urban slice of apple pie: rethinking homeownership in u.s. cities, 24 notre dame j.l. ethics & pub. pol‟y 187 (2010); a. mechele dickerson, the myth of home ownership and why home ownership is not always a good thing, 84 ind. l.j. 189 (2009). 2011 columbia journal of race and law 110 solidification of racial identifications and boundaries.162 indeed, racial segregation cannot be truly addressed without challenging the understandable societal fixation on property values and the attendant policies of exclusionary zoning. the role of speculative profit is central to the current housing market crisis and to the perpetuation of segregation, and it has been raised directly in one of the class action suits against lenders. in miller v. countrywide bank, countrywide argued in its defense “that the complaint boils down to a claim that countrywide should not be able to have a policy of selling its product for what people will pay for it after negotiating in the shadow of market forces.”163 judge gertner, denying countrywide‟s motion to dismiss, found the “ „market forces‟ argument troubling. it is precisely because the market could not self-correct for discrimination that statutes like title vii, the fha, and ecoa were necessary. the market, after all, traditionally valued „individual preferences,‟ even when those preferences derived from racial and gender-based stereotypes.”164 a leading legal scholar in the field, robert schwemm, similarly argues that “[s]o long as our homefinance system relies primarily on profit-seeking lenders, it is naïve to believe that these firms will voluntarily put a high value on conforming with civil rights laws if discrimination appears to offer the prospect of more profits.”165 wrestling with the market forces that make discrimination profitable requires reconsideration of the economic and racial divisions entrenched in taken-for-granted municipal boundaries, as well as the role of housing in personal and public finance.166 as 162  self, supra note 15, at 98-99. self writes, “the most significant political, economic, and spatial transformation in the postwar united states was the overdevelopment of suburbs and the underdevelopment of cities. as ostensible signifiers of this transformation, „white flight‟ and „urban decline‟ mask volatile and protracted social and political struggles over land, taxes, jobs, and public policy . . . .” id. at 1. although white suburban residents may have been “diverse in class background and place of origin, . . . the structure of the housing markets into which they entered in the postwar decades would begin to give them a common identity, to shape for them a set of concerns and interest that would unite more than divide them.” id. at 98. 163  miller v. countrywide bank, n.a., 571 f. supp. 2d 251, 257 (d. mass. 2008). 164  id. at 258 (citations omitted). 165  schwemm & taren, supra note 28, at 432. 166  see peter marcuse & emily achtenberg, towards the decommodification of housing: a political analysis and a progressive program, in critical perspectives on housing (rachel bratt et al. eds., 1986). it is also relevant to point out that housing is not like most other commodities in 111 innovative responses to foreclosures vol. 1:1 newark and other regions have been exploring, low property values create an opportunity to use shared-equity forms of tenure to deliver the benefits of homeownership, such as security of tenure, while also creating durable affordability and reducing the speculation involved in housing markets. with wider acceptance of the idea that owning a home is not primarily a speculative profit-making venture but instead can be a safe investment in a personal and social good consumed over a long period of time, such alternative tenures can deliver both greater affordability and security for owners, as well as increased race and class diversity in neighborhoods.167 2. land-trusts and durable affordability land trusts make housing more affordable in the long term by removing the cost of land from the housing price. while continuing to own the land in the trust, land trusts provide for the private use of a parcel through long-term ground lease agreements that give the homeowner exclusive access and use rights, but they limit resale rights to ensure that the home remains affordable and is sold to qualified lowor moderate-income buyers.168 while formulas for calculating resale values in shared-equity structures vary, most allow owners to get back what they invested in the property at the time of the purchase along with improvements they made. additionally, they recover a share of the appreciation in value (which is frequently linked to an index of low-income households‟ buying power such as the area median income, thus tying housing price appreciation to rises in income). there are currently more than two hundred community land trusts in operation in thirty-one states across the country, with thousands of affordable homeownership units in a mix of single and multi-family buildings.169 as cities have watched prior investments in affordable housing through local, state, and federal subsidies expire, land trusts are increasingly appealing as a way to guarantee that it is fixed, durable, costly, lacks transparency, involves high-transaction costs, and, most importantly, has tremendous social and economic externalities. 167  rick jacobus & michael brown, city hall steps in, shelterforce, spring 2007, http://www.nhi.org/online/issues/149/cityhall. html. 168  julie farrell curtin & lance bocarsly, clts: a growing trend in affordable homeownership, 17 j. affordable hous. & cmty. dev. l. 367, 370 (2008). 169  emily thaden & greg rosenberg, outperforming the market: delinquency and foreclosure rates in community land trusts, land lines, oct. 2010, at 2, 4; see also curtin & bocarsly, supra note 168. 2011 columbia journal of race and law 112 permanent affordability.170 as a result, a diverse range of cities, including cincinnati, ohio, irvine, california, and chicago, illinois, have formed land trusts as part of their housing development strategies.171 3. land trusts and neighborhood stability one significant advantage of community land trusts is their ability to increase neighborhood stability, both because of their community development mission and because of their robust support systems for first-time homeowners. land trusts stabilize local economies by purchasing vacant land and building or renovating affordable homes. at the same time, land trusts also build household assets by working with homebuyers to secure the financial resources necessary to afford and maintain homeownership, and they foster community engagement by creating forums through which land trust homeowners can participate in the governance of the trust and the development of the broader community.172 evidence of community land trusts‟ ability to foster neighborhood stability is demonstrated by the fact that their lessees have outperformed the market by a wide margin in delinquencies and foreclosures during the housing crisis, despite supporting predominantly low and moderate income households. the national delinquency survey conducted by the mortgage bankers association reported that 30.6% of subprime loans and 7% of prime loans were seriously delinquent in 2009.173 by contrast, a national survey of community land trusts reported that only 1.6% of loans on community land trust units were delinquent.174 similarly, the mortgage bankers association reported 15.6% of subprime loans in foreclosure and 3.3% of prime loans in foreclosure in 2009 as compared with less than 0.6% of loans on community land trust units in foreclosure.175 170  david abromowitz, community land trusts and ground leases, 1 j. affordable hous. & cmty. dev. l. 5, 5 (1992). 171  curtin & bocarsly, supra note 168, at 371; jacobus & brown, supra note 167. 172  jeff corey, a model for all markets?, shelterforce, fall/winter 2009, http://www.shelterforce.org/article/a_model_for_all_markets/a_model _for_all_markets. 173  thaden & rosenberg, supra note 169, at 4. 174  id. 175  id. 113 innovative responses to foreclosures vol. 1:1 due to the fact that community land trusts make homeownership more affordable and ensure that households spend no more than thirty to forty percent of their income on housing costs, land trust homes are significantly less likely to become delinquent. land trusts also outperform the market because of the stewardship practices in which they engage, including pre-purchase education on homeownership for homebuyers, post-purchase opportunities for education in financial literacy, support in finding contractors and managing repairs, and contractual provisions limiting high-cost refinancing loans.176 finally, if homeowners do become delinquent on loans, clts often intervene to help by contacting lenders, providing financial counseling, or even by lending emergency funds to prevent foreclosure.177 as duncan kennedy has argued, in shared-equity homeownership structures “[t]he point is not just to help people move up through the market system, but also to counter the tendency of the market to generate, through the combination of employment instability, neighborhood instability, and the various forms of race and class discrimination, an endlessly renewed sector of urban misery.”178 4. expanding shared-equity opportunities expanding the diversity of housing options that households at all income levels can access by growing the shared-equity sector can contribute both to increasing housing opportunities and strengthening neighborhood stability. a first step in that direction is investigating and sharing best practices in the variety of sharedequity models such as community land trusts, limited equity cooperatives, and other deed-restricted affordable tenures. identifying and sharing best practices can contribute to increased standardization and make it easier for land trusts and for homeowners to access capital from both private lenders and public funders.179 the most exciting recent development for shared-equity housing has been increased interest from city and county 176  thaden & rosenberg, supra note 169, at 3, 6. 177  id. at 2-7. 178  duncan kennedy, the limited equity coop as a vehicle for affordable housing in a race and class divided society, 46 how. l.j. 85, 91 (2002). 179  john emmeus davis, toward a common agenda: growing sharedequity housing, shelterforce, spring 2007, http://www.shelterforce.org/ article/680/toward_a_common_agenda/. 2011 columbia journal of race and law 114 governments.  public support is essential to creating a more tolerant climate for shared or limited equity structures, especially in creating valuation systems that tax limited equity housing fairly in ways that represent their limited resale value. participation by local governments also can contribute some of the capital necessary to start community land trusts and bring them to scale. as previous subsidies and affordability restrictions have begun to expire, local governments are recognizing the wisdom of creating durable longterm affordability in ways that retain the subsidies. they are also recognizing the unique benefits shared equity housing provides to neighborhoods and individual owners particularly in terms of affordability, which is preserved for subsequent generations, and stability, which derives from stewardship programs that pool risks, share responsibilities, and increase the odds that first-time homebuyers succeed and flourish. two recent examples of city participation in community land trusts are from irvine, california and chicago, illinois. in 2005, the irvine city council created a housing task force led by the mayor which has set a goal for the city to develop 9,700 units of new affordable housing under the stewardship of a municipallysponsored clt. similarly, in 2006, the mayor and city council in chicago created a city-wide, municipally-sponsored land trust with the goal of adding 250 units to the trust annually in locations spread throughout the city.180 since their formation, both trusts have acquired land, developed housing, sold affordable homes to qualified buyers, and continued to grow.181 by highlighting the ways in which the current system of housing regulation is not functioning, the current crisis presents a number of opportunities to address the root causes of the housing bubble, including segregation and speculation. any solution must create regional structures to bring together fragmented governments and their financing. a truly long-term solution also should explore alternative homeownership structures that reduce the commoditization of housing and reorient our focus towards its social benefits.182 180  jacobus & brown, supra note 167. 181  id. 182  see, e.g., defilippis, supra note 124; michael harloe, the people‟s home: social rented housing in europe and america (1995); critical perspectives on housing, supra note 166; a right to housing: foundation for a new social agenda, supra note 20. 115 innovative responses to foreclosures vol. 1:1 vii. conclusion the problem of segregation is not primarily that people desire to live and associate with others for whom they feel an affinity, but rather that through segregation, certain groups establish material privilege, perpetuate social and economic hierarchies, and maintain political exclusion.183 regions can counteract this process by bringing localities together to create fair distributions of affordable housing, pool resources and expertise to create equitable public education, and take strong stands against housing discrimination. in these ways, regions can contribute to a climate in which strangers with diverging loyalties, diverse local affinities, and different priorities recognize that they live together in a shared metropolitan region with shared responsibilities. restructuring local governance in ways that both highlight and address the shared responsibilities within regions and reduce the existing incentives for segregation can help develop a much-needed sense of solidarity among neighbors. as the name apartheid suggests, the south african government used spatial segregation as a central tool to maintain white supremacy. recognizing the ways in which municipal fragmentation perpetuated economic inequality, the south african liberation struggle popularized the slogan “one city, one tax base” to demand metropolitan integration and tax base sharing.184 township residents organized rent and service payment boycotts to give expression to the slogan and speed the fall of the white supremacist government. recognizing that the definition of local government boundaries fundamentally shapes access to opportunity, south africa‟s first democratically-elected government undertook a national effort to redesign local government boundaries and responsibilities in light of both historic inequalities and current social and political relationships.185 the national effort concluded that local governments are the basis for equitable and just metropolitan areas and that strategic land-use planning and regional 183  iris marion young, inclusion and democracy 218 (2002). 184  marina ottaway, south africa: the struggle for a new order 114-31 (1993); richard tomlinson et al., the postapartheid struggle for an integrated johannesburg, in emerging johannesburg: perspectives on the postapartheid city 3, 8-14 (richard tomlinson et al. eds., 2003). 185  robert cameron, local government boundary reorganization, in democracy and delivery: urban policy in south africa 76 (udesh pillay et al. eds., 2006). 2011 columbia journal of race and law 116 development frameworks are crucial for economic and social development.186 after the civil rights movement in the united states, however, local government boundaries and responsibilities were not reconsidered systematically. generally, local government structures and boundaries are often assumed to be fixed, but in reality, they are frequently changing. even in the united states, boundaries are more fluid than we often imagine. local government boundaries in the united states are changed most often not to realize more equitable distributions of government resources but, rather, to perpetuate the local economic and political status quo through processes such as “defensive incorporation.”187 conversely, efforts to change municipal boundaries in order to achieve more equitable sharing of the tax-base have been struck down in the courts.188 to lay the groundwork for improved housing markets and increased access to opportunity, the federal government should collaborate with states and municipalities to undertake a systematic reconsideration of existing structures of local government, which could enhance local democracy and economic growth simultaneously. soon after taking office, president obama created the white house office of urban affairs and highlighted a regional approach as one of the guiding principles of its efforts. while the role of the office of urban affairs thus far has been muted, it could and should lead a dynamic effort to support innovative local housing financing efforts, such as community land trusts, and to spread lessons from regional cooperation between cities and suburbs that can simultaneously enhance economic productivity and equity. this kind of effort by the office can play a crucial role in learning from local creativity and spreading these successes across the country in the true spirit of federalism‟s laboratories of democracy. 186  id. at 80. 187  defensive incorporation describes the actions of unincorporated areas, often wealthy, predominantly white areas, which incorporate to prevent annexation by another entity, often a neighboring urban area. see, e.g., green v. tucson, 340 f.3d 891 (9th cir. 2003) (rejecting constitutional challenges to an arizona law seeking to limit defensive incorporation by requiring new incorporations within a minimum distance from existing municipalities to obtain their consent). 188  see e.g., bunch v. city of jackson, 691 so. 2d 978 (miss. 1997) (prohibiting the city of jackson‟s proposed annexation of neighboring unincorporated land as unfair and unreasonable and suggesting it was motivated by a desire to increase the city‟s tax base). 117 innovative responses to foreclosures vol. 1:1 as a significant political and economic liability for the united states, segregation fosters inequality and economic crisis. the collaborations in essex county accessing joint funding, developing common principles, sharing data, disseminating best practices, and conducting public education demonstrate ways in which metropolitan partnerships can benefit both urban and suburban residents and make possible regional public policy innovations. the unprecedented number of foreclosures and high rate of unemployment in areas across the country serve as a reminder that housing and labor are regional markets and that metropolitan collaboration is necessary to address neighborhood stabilization. the realization of potential social and economic gains that arise from more truly open access to housing can be an integral part of the national recovery from the current economic crisis. citizenship as accumulated racial capital peter halewood * introduction despite persistent racial and economic inequality, many believe the united states is becoming a post-racial and classless society where race and class analysis are anachronisms. this essay will contest that claim by way of a critical reading of citizenship as reflected in american law and culture and demonstrate the continuing relevance of race theory and marxian analysis, notwithstanding their somewhat uneasy relationship.1 it examines how law and culture construct and reflect, on the one hand, xenophobic and racist popular images of aliens—particularly refugees and undocumented aliens—and, on the other hand, enable and assure the accumulation of racial capital and value in the notion of deserving, legitimate, and racialized (white) citizenship. as used here, citizenship does not merely refer to formal legal status but also to the abstract, ideal citizenship of political theory: the panoply of rights, duties, civic participation, and the sense of belonging accorded to those who are part of the polity, broadly speaking. the binary identities of citizen and alien may be enforced by violence or the threat of violence whenever the *  professor of law, albany law school. many thanks to donna young for ideas and support, to anthony farley for organizing and inspiring this symposium, and to adam staier for research assistance. 1  the place of race in marxist theory is contested and complex with some claiming that marxism unfairly discounts racism as an epiphenomenon of class and economic dynamics. but sophisticated and complex readings of race within marxism have emerged recently. see, e.g., zeus leonardo, the unhappy marriage between marxism and race critique: political economy and the production of racialized knowledge, 2 pol’y futures educ. 483 (2004) (examines marxism and race analysis theories in order to reconcile them into a new theory that maintains the integrity of each by integrating marxism’s objectivity and the subjectivity of race analysis.). 2012 columbia journal of race and law 314 perception of these categories’ stability weakens.2 this occurs when, as in recent years, the accumulated and assumed material benefits of citizenship are brought into question through severe, prolonged economic recession and heightened unemployment.3 border vigilantism, attacks on migrant workers, deportations, and arizona’s new empowerment of local police to engage in immigration policing—all police the color line in citizenship.4 this policing of identities accelerates during periods of economic or political crisis, such as the continuing deep global recession and the employment deficit that have accompanied trade liberalization and global economic restructuring.5 crisis exacerbates contradictions. domestic immigration law, policy, and discourse are ever more restrictive. international law also fundamentally embraces a normative commitment to state sovereignty and the state’s right to determine membership through the power of exclusion6 derived from that sovereignty.7 the national border-driven, exclusive dimension of citizenship, thus, is well-established in both domestic and international law. to this premise, this essay connects recent developments in american law, culture, and politics that reflect and 2  see charles a. reich, property law and the new economic order: a betrayal of middle americans and the poor, 71 chi.-kent l. rev. 817, 817-20 (1996). 3  id. at 818. 4  see glen a. tobias & abraham h. foxman, antidefamation league, border disputes: armed vigilantes in arizona (2003), http://www.adl.org/extremism/arizona/arizonaborder.pdf; see also christopher j. walker, border vigilantism and comprehensive immigration reform, 10 harv. latino l. rev. 135 (2007); mexican migrant workers savagely attacked by racists in san diego, california, la voz de aztlan (july 14, 2000), http://www.aztlan.net/lynched.htm; support our law enforcement and safe neighborhoods act, ch. 113, 2010 ariz. legis. serv. 369 (west) (2010), amended by 2010 ariz. sess. laws 0211 (h.b. 2162, 49th leg., 2d sess. (ariz. 2010)) [hereinafter s.b. 1070]. 5  see kevin r. johnson, public benefits and immigration: the intersection of immigration status, ethnicity, gender, and class, 42 ucla l. rev. 1509, 1541 (1995) (“the unpopularity of immigrants predictably waxes during times of relative economic uncertainty and hardship.”). 6  see linda s. bosniak, exclusion and membership: the dual identity of the undocumented worker under united states law, 1988 wis. l. rev. 955, 967 (1988) (exploring how national sovereignty defines the state’s power to exclude outsiders) [hereinafter bosniak, exclusion and membership]. 7  see, e.g., linda s. bosniak, the citizen and the alien: dilemmas of contemporary membership (2006) (discussing the problems of inclusion and exclusion inherent in the practices and institutions of citizenship). http://www.adl.org/extremism/arizona/arizonaborder.pdf http://www.aztlan.net/lynched.htm 315 citizenship as accumulated racial capital vol. 1:3 help to construct the ideology of the “native,” deserving citizenship around the familiar pillars of race and class8: for example, the 2010 arizona law targeting illegal aliens;9 the tea party and glenn beck phenomena10; the whisper campaign about president obama being foreign-born, socialist, and muslim11; proposition 187 in california in the 1990’s12; city ordinances in hazleton, pennsylvania13; and federal limits placed upon the entitlement to public benefits of even legal aliens. this essay argues that an analysis of the interplay of race and class in citizenship, informed by marxian theorization14 of economy, exploitation, and ideology, demonstrates the complex efficiencies of racialization15 in framing an ideology of citizenship. it further argues that the net effect of this crystallization of power and interest through a coded elaboration of a system of racialized 8  see johnson, supra note 5, at 1542 (showing how race, sex, and class status are historical and present reasons for exclusion of “outsiders” or immigrants by the united states). 9  see s.b. 1070. 10  amy gardner, glenn beck rally will test tea party strength, wash. post, aug. 26, 2010, available at http://www.cbsnews.com/stories/2010/08/ 26/politics/washingtonpost/main6807659.shtml. 11  lauren green, nearly 1 in 5 americans thinks obama is a muslim, survey shows, fox news, aug. 19, 2010, http://www.foxnews.com/ politics/2010/08/19/nearly-americans-thinks-obama-muslim-survey-shows/. 12  see peter h. schuck, the message of proposition 187, 26 pac. l.j. 989, 990 (1995) (proposition 187 sought to encourage california’s illegal residents to leave by preventing them from receiving public social services, health care, or education). see also league of united latin am. citizens v. wilson, 997 f. supp. 1244, 1245 (c.d. cal. 1997) (repealing proposition 187 on the basis of preemption and unconstitutionality; it nonetheless represents a vivid example of the overt exclusion of public benefits to “outsiders”). 13  see lozano v. city of hazleton, 620 f.3d 170, 226-38 (3d cir. 2010) (regulation forbidding employment of or renting property to undocumented aliens). 14  see generally john solomos, varieties of marxist conceptions of ‘race’, class, and the state, in theories of race and ethnic relations 84 (john rex & david madison eds., 1986); stuart hall, race, articulation, and societies structured in dominance, in black british cultural studies: a reader 16 (houston baker et al. eds., 1996); leonardo, supra note 1; eduardo bonillasilva, rethinking racism: toward a structural interpretation, 62 am. soc. rev. 465 (1996); karl marx, on the jewish question, in ‘nonsense upon stilts’: bentham, burke and marx on the rights of man (jeremy waldron ed., 1987). 15  frantz fanon, black skin, white masks 77 (1967) (“the habit of considering racism as a mental quirk, a psychological flaw, must be abandoned.”). http://www.cbsnews.com/stories/2010/08/26/politics/washingtonpost/main6807659.shtml http://www.cbsnews.com/stories/2010/08/26/politics/washingtonpost/main6807659.shtml http://www.foxnews.com/politics/2010/08/19/nearly-americans-thinks-obama-muslim-survey-shows/ http://www.foxnews.com/politics/2010/08/19/nearly-americans-thinks-obama-muslim-survey-shows/ 2012 columbia journal of race and law 316 citizenship amounts to amassing and accumulating racial capital.16 racial capital is the material and economic value of whiteness.17 whiteness is the surplus value generated by systemic denigration of non-whiteness in our law, policy, and public discourse.18 marxism as an explanatory model has not yet withered away. i. crisis citizenship in a crisis, elites typically accentuate inter-group differences to serve their own interests. the current global crisis is usually described as an economic one—a crisis of unemployment, poverty, and underdevelopment driven at least in part by trade liberalization and global patterns in financial markets.19 but it is a political crisis too, at least in the united states, driven by the failure of late capitalism to generate even the legitimating symbolism of upward class mobility. voter apathy, tea party anger, disgust with incumbents, revulsion at government itself, self-interested objections to health care reform that would better cover needy working americans, visceral hatred of all forms of taxation, and the general headlong rush from public spiritedness—all indicate a general societal disappointment, even among the contented classes, with the postwar corporate-political alliance that has dominated american politics. the suspicion of and hostility toward illegal aliens mounted during this period, with extreme eruptions such as the 2010 arizona law targeting illegal aliens.20 16  see generally anthony p. farley, accumulation, 11 mich. j. race & l. 51 (2005) (analyzing the intersection of class and critical race theory through the concept of accumulation); anthony p. farley, the colorline as capitalist accumulation, 56 buff. l. rev. 953 (2008). 17  e. christi cunningham, identity markets, 45 how. l.j. 491, 507 (2002). 18  see e.g., sylvia a. law, white privilege and affirmative action, 32 akron l. rev. 603 (1999). 19  arnold bock, the current global financial & economic crisis, goldseek.com (dec. 2, 2008), available at http://news.goldseek.com/ goldseek/1228229664.php (last visited july 15, 2012). 20  see s.b. 1070. most of proposition 187 was invalidated by federal preemption or as an improper assumption of federal regulatory authority. see anil kalhan, the fourth amendment and privacy implications of interior immigration enforcement, 41 u.c. davis l. rev. 1137, 1157-58 (citing league of united latin am. citizens v. wilson, 997 f. supp. 1244, 1251 (c.d. cal. 1997); league of united latin am. citizens v. wilson, 908 f. supp. 755, 786-87 (c.d. cal. 1995)). http://news.goldseek.com/goldseek/1228229664.php http://news.goldseek.com/goldseek/1228229664.php 317 citizenship as accumulated racial capital vol. 1:3 the attacks of september 11, 2001 intensified the “us versus alien” distinction.21 the fear of terrorism has served as a new impetus for seeking out enemies within, driven by the paranoid rhetoric of the “war on terror.” the perceived threat posed by the alien is today graver than mere obstruction of the “entitled” american’s access to the american dream. instead, it is assumed to be an immediate and unpredictable threat posed to our physical and national security. the hunt is on for dangerous aliens within our borders and around the world. our willingness to use extreme measures, including torture, indicates the extent to which we have dehumanized the alien in this atmosphere of panic.22 the attacks on 9/11 aside, the global economy is bleak and jobs are scarce.23 with the legitimating glue of anti-communism no longer available, america has again turned inward in search of an enemy. undocumented workers, refugees, and even legal aliens are once again the focus of people who feel shortchanged and marginalized. these feelings are not unfounded—the post-war social contract that promised every industrious american upward class mobility has been eradicated by economic globalism.24 globalization has accentuated group differences by increasing the stratification, polarization, and gendering of labor markets.25 labor migration, and consequently national membership and citizenship, have been placed firmly outside the sphere of free trade, leaving sovereign states selfishly policing their borders.26 21  ian urbina, federal hate crime cases at highest level since ’01, n.y. times, dec. 18, 2009, at a23. 22  scott higham & joe stephens, new details of prison abuse emerge: abu ghraib detainees’ statements describe sexual humiliation and savage beatings, wash. post, may 21, 2004, at a1. 23  peter symonds, oecd paints bleak picture of global economy, world socialist web site (apr. 1, 2009), http://www.wsws.org/articles/ 2009/apr2009/oecd-a01.shtml (last visited july 15, 2012). 24  jonathan t. fried, joining together, standing apart: national identities after nafta, 93 am. j. int’l l. 544, 545 (1999). 25  rosemary j. coombe, the cultural life of things: anthropological approaches to law and society in conditions of globalization, 10 am. u. j. int’l l. & pol’y 791, 800 (1995). 26  yishai blank, spheres of citizenship, 8 theoretical inquiries l. 411, 442 (2007) (“skepticism towards the idea that there is—or should be— such a thing as global citizenship is fierce.”); see generally catherine dauvergne, citizenship with a vengeance, 8 theoretical inquiries l. 489, 489 (2007) (“as states are increasingly unable to assert exclusive power in a range of policy domains, immigration and citizenship law are transformed into a last bastion of sovereignty.”). http://www.wsws.org/articles/2009/apr2009/oecd-a01.shtml http://www.wsws.org/articles/2009/apr2009/oecd-a01.shtml 2012 columbia journal of race and law 318 the term “alien” certainly suggests nativism. it defines those who are “other” to us: intruders into our political and economic community.27 the arizona law targeting illegal aliens,28 the “buy american” provisions of the recent economic stimulus bills and “english only”29 campaigns of recent years illustrate nativist fears of alien economic and cultural influences. popular discourse about the chinese “threat” from its trade and currency policies, foreign ownership of american industry,30 documented tea party racism,31 and smear campaigns against president obama as a foreign, muslim socialist32 are other examples of nativist paranoia.33 ii. the deserving citizen we should consider how the “us versus alien” construct has assisted the legal construction of “us” as citizens, and particularly, how citizenship has been constructed as a matter of exclusion and entitlement. the identity of the contented class is defined by entitlement and desert and it has employed a racialized nativism to justify this as “healthy” american patriotism.34 in fact, intolerance of difference is implicit even in the assimilationist ideal of “universality” in american citizenship because difference must be 27  enid trucios-gaynes, the legacy of racially restrictive immigration laws and policies and the construction of the american national identity, 76 or. l. rev. 369, 378-79 (1997) (“noncitizens are not full members of the political community, and are legally referred to as ‘aliens,’ affirming that these persons in our midst are cast in the role of the other.”). 28  see s.b. 1070. 29  see robert s. chang, toward an asian american legal scholarship: critical race theory, post-structuralism, and narrative space, 1 asian l.j. 1, 16, 62 (1994) (discussing problems with using english-only ballots for linguistic minorities). 30  id. at 17. 31  see kate zernike, n.a.a.c.p. report raises concerns about racism within tea party groups, n.y. times, oct. 10, 2010, available at http://www. nytimes.com/2010/10/21/us/politics/21naacp.html. 32  see robert schlesinger, party of nuts: poll shows gop believes obama is muslim, socialist, us news (mar. 24, 2010), http://www.usnews. com/opinion/blogs/robert-schlesinger/2010/03/24/party-of-nuts-poll-shows -gop-thinks-obama-is-muslim-socialist. 33  chang, supra note 29, at 16; see also robert s. chang, reverse racism!: affirmative action, the family, and the dream that is america, 23 hastings const. l.q. 1115, 1121 (1996) (“this desire to take back america might be called the ‘nativist’s dream of return.’ ”). 34  see martha minow, surviving victim talk, 40 ucla l. rev. 1411, 1432 (1993) (stating that american patriotism is persuasive because it represents a “talisman[] of the deserving person”). http://www.nytimes.com/2010/10/21/us/politics/21naacp.html http://www.nytimes.com/2010/10/21/us/politics/21naacp.html http://www.usnews.com/opinion/blogs/robert-schlesinger/2010/03/24/party-of-nuts-poll-shows-gop-thinks-obama-is-muslim-socialist http://www.usnews.com/opinion/blogs/robert-schlesinger/2010/03/24/party-of-nuts-poll-shows-gop-thinks-obama-is-muslim-socialist http://www.usnews.com/opinion/blogs/robert-schlesinger/2010/03/24/party-of-nuts-poll-shows-gop-thinks-obama-is-muslim-socialist 319 citizenship as accumulated racial capital vol. 1:3 subsumed into a universal citizenship.35 immigration law has historically distinguished between groups, whether through outright exclusion of some asian groups in the late nineteenth and early twentieth centuries, or more subtle continued exclusion of immigrants in polygamous family situations.36 we must interrogate the notion of “the citizen.” the citizen is the responsible social participant who, possessing rights but respecting duties, subscribes to shared national values and norms of membership and exhibits the virtues of public engagement.37 as linda bosniak points out, citizenship is defined by two sets of normative commitments: to community on the one hand, with the right to exclude from community membership which it confers; and to equality on the other hand, conferring the substantive right of migrants to equality once here.38 it is useful to unpack the notions of community and equality to see how they inform our society’s thinking about aliens. in addition to determining who is excluded, community defines the parameters of the civic virtues which citizens are supposed to exhibit—the collective, normative commitments to shared “american” values.39 equality, on the other hand, informs the rights which citizens—and also migrants—have against the community for benefits.40 the relationship and tension between these two principles, community and equality, is what drives immigration law and policy, and the popular perceptions of aliens. under the principle of community, aliens are outsiders subject to multiple borders even 35  berta esperanza hernández-truyol & matthew hawk, traveling the boundaries of statelessness: global passports and citizenship, 52 clev. st. l. rev. 97, 107-08 (2005). 36  karen engle, constructing good aliens and good citizens: legitimizing the war on terror(ism), 75 u. colo. l. rev. 59, 69-77 (2004); see also mae m. ngai, birthright citizenship and the alien citizen, 75 fordham l. rev. 2521 (2007) (discussing the concept of aliens who are citizens at birth and whose citizenship is considered suspect because of his/her racialized identity). 37  see bosniak, exclusion and membership, supra note 6, at 961-67. 38  id. 39  id. 40  id.; see also leti volpp, the culture of citizenship, 8 theoretical inquiries l. 571 (2007) (analyzing how cultural difference and citizenship are conceived and the relationship between the two concepts); sonia k. katyal, the dissident citizen, 57 ucla l. rev. 1415 (2010) (exploring the relationship between the diverse classifications of narratives concerning sexuality). 2012 columbia journal of race and law 320 once within national territory.41 under the principle of equality, aliens are entitled to benefits and protections like citizens. why at times does the nation’s immigration law and policy favor community, and at other times equality? iii. nationalism, poverty, and racial exclusion the answer may lie in the concept of “the american nation,” in the forms of nationalism that control popular perception of who is a deserving citizen and who is not, to whom should be granted the full privileges of membership, and to whom should they be denied.42 conventional accounts of american political theory hold that the nation is committed to individualism, equality, and tolerance.43 the nation must justify to itself the incongruity between these ideals and the harsher reality of american society. kenneth karst has said that american public life has been defined from the beginning to exclude subordinated groups so that their nonparticipation is invisible.44 poverty comes to seem abnormal among the “people of plenty.”45 for the poor, the failure to be self-sustaining becomes stigmatized as a moral failure: the poor live, symbolically outside the borders of society though within the national territory.46 those who are illegal aliens are doubly outside the borders: once in their legal status related to the national community, and again in their social 41  see, e.g., saskia sassen, territory, authority, rights: from medieval to global assemblages (2008) (applying for work can trigger removal.). discrimination, threat of removal, and intimidation all constitute forms of an intra-national borders standing between aliens and inclusion in national community. 42  arvin lugay, “in defense of internment”: why some americans are more “equal” than others, 12 asian l.j. 209, 224 (2005). 43  see kenneth l. karst, belonging to america: equal citizenship and the constitution (1991) (offering a perspective on the concept of belonging for different cultural groups and arguing that the concept of equal citizenship is a unifying force in america’s past and present). 44  id. 45  id. at 125; see also stephen loffredo, “if you ain’t got the do, re, mi”: the commerce clause and state residence restrictions on welfare, 11 yale l. & pol’y rev. 147, 151 n.24 (1993) (citing karst as “arguing that perception of non-working poor people as ‘the other’ drives public policies”). 46  see, e.g., leslie espinoza garvey, the race card: dealing with domestic violence in the courts, 11 am. u. j. gender soc. pol’y & l. 287, 289 (2003). 321 citizenship as accumulated racial capital vol. 1:3 status. race and class, cemented by hierarchy and white privilege, combine to create an identity and social position from which escape is difficult—the racial underclass. altogether these factors produce what karst calls a powerful “culture of isolation” inside which the poor are completely cut off from access to remunerative jobs and political participation.47 the exclusivity of the american nation thus produced is jarring when exclusion is so at odds with the ideals of american citizenship. consider the formal equality that underlies american liberal legalism.48 race-neutral patriotism, not a racialized understanding of the american nation, is the core american civic value. americanization is, in theory, open to all who are willing to submit their differences to the american melting pot of individualism, equality, and tolerance. but on the contrary, american nationalism defined by race is very much a reality. the recent arizona law targeting illegal aliens,49 california’s proposition 187 in the 1990’s,50 and the recent city ordinances of hazleton, pennsylvania51 were clearly attempts to restrict privileges of membership to existing national members on a primarily racial basis. as the history of american slavery and genocidal indian wars demonstrates, american nationalism comprises notions of race and territory. the universality model of american citizenship is false—race and class are always already historically embedded in american nationalism. there are groups situated by virtue of race and class position such that the american values of individualism and hard work just will not pay off in terms of accession to the american ideal of citizenship. in access to full citizenship, this market structure facilitates the accumulation of racial capital by whites, the surplus value that whiteness represents at the expense of the suppressed value of non-whiteness.52 class and 47  karst, supra note 43, at 125. 48  see peter halewood, law’s bodies: disembodiment and the structure of liberal property rights, 81 iowa l. rev. 1331, 1337 (1996). 49  see s.b. 1070. 50  see supra note 20 and accompanying text. 51  see lozano v. city of hazleton, 496 f. supp. 2d 477 (m.d. pa. 2007) (holding the hazleton ordinances violated the supremacy clause). 52  see peter halewood, whiteness, in the encyclopedia of african american history, 1896 to the present, from the age of segregation to the twenty-first century 121 (paul finkelman ed., 2009). a classic case on whiteness is united states v. thind, 261 u.s. 204 (1923), holding that common knowledge is sufficient to determine that asian indians are not white. 2012 columbia journal of race and law 322 race are indeed only relatively autonomous from each other: the hegemony and legitimacy conferred upon this racialized citizenship serves the interest of capital accumulation, and vice versa. so the citizen is implicitly white.53 laws such as the arizona law on illegal aliens54 and the hazleton ordinances55 serve to construct and maintain the identity of the normal and the suspect, the deserving and the undeserving, so as to maintain the economic and political hierarchy when it is threatened by crisis. in this manner, law is continually constructing majorities and minorities and gerrymandering the borders of citizen legitimacy. multiple layers of ineffective restrictions have fed both domestic market demand for cheap labor, and at the same time satisfied popular xenophobia. iv. community and exclusion michael walzer, returning to the concept of community and its role in facilitating nativisim, argues that “communities of character”56 are what define nations. these communities may be justifiably protected by careful selection of prospective members and exclusion of others, subject to concerns about fairness, national responsibility, and humanitarianism.57 walzer’s argument is one of the most important justifications for the immigration “restrictionist” position.58 the interest of the state in regulating national membership is most compelling under a political system of popular sovereignty, where sovereignty is directly linked to citizenship.59 on walzer’s model, the “character” of the community encompasses the shared values to which the community subscribes: 53  the recent “tea party” movement seems to promote this notion of white citizenship, consciously or unconsciously. see zernike, supra note 31. 54  see, e.g., s.b. 1070. 55  see, e.g., lozano, 496 f. supp. 2d. at 477. 56  michael walzer, spheres of justice: a defense of pluralism and equality 61-63 (1983). 57  id.; see also bosniak, exclusion and membership, supra note 6, at 963-65 (discussing walzer’s theory); see generally linda s. bosniak, membership, equality and the difference that alienage makes, 69 n.y.u. l. rev. 1047 (1994) (exploring the relation of community and equality in immigration law and policy while closely examining walzer’s work). 58  linda s. bosniak, opposing prop. 187: undocumented immigrants and the national imagination, 28 conn. l. rev. 555, 587-90 (1996). 59  see generally karst, supra note 43 (discussing citizenship and inclusion in the national community). 323 citizenship as accumulated racial capital vol. 1:3 by definition, that character can only be maintained by members committed to those same fundamental values.60 and of course this is precisely where nativism enters. the process of exclusion tailors the national membership to the national character in a selfreferential circle that defeats difference and equality. thus, one of the problems may be community itself. iris marion young has argued that community, the refuge of progressive politics from alienating market individualism, itself excludes difference.61 she asserts a radical multiculturalism that explodes conventional understandings of community.62 community is conceptually tied to conformity and homogeneity and is incompatible with radical assertions of identity politics, or with demands for substantive justice that take account of the historical and political specificities of group difference and group subordination.63 in other words, in a society where groups are oppressed, a conception of citizenship that transcends group differences cannot sufficiently acknowledge or remedy that oppression. like color-blindness in the context of race discrimination, universal citizenship reinforces the position of the privileged. therefore, young has proposed “differentiated citizenship” which would offer “explicit recognition and representation of oppressed groups,” and would serve to integrate members of subordinated groups into the political community not only as individuals but as members of groups as well.64 there are further contradictions. while the american political tradition has valued homogeneity in citizenship, it has vigorously advanced heterogeneity in the market sphere.65 the only remaining “protected market” is in citizenship, where membership 60  see bosniak, exclusion and immigration, supra note 6, at 964 (“the unmembered presence of [immigrants and aliens], who exist as a permanently unenfranchised population, undermines the democratic community.”). 61  see iris marion young, justice and the politics of difference 226 (1990). 62  id. 63  hawly fogg-davis, an argument against a historical “difference” in feminist political theory, 4 circles: buff. women’s j.l. & soc. pol’y 2, 3-4 (1996). 64  id. at 3-4. (“young upholds what she calls democratic cultural pluralism, a political model that envisions the good society as ‘equality among socially and culturally differentiated groups, who mutually respect one another and affirm one another in their differences.’ ”). 65  see walzer, supra note 56, at 108-09 (discussing the american marketplace with an emphasis on how it promotes the heterogeneity of proffered goods and services). 2012 columbia journal of race and law 324 selection and border enforcement are still thought to be legitimate concerns of the state.66 but this sovereignty has not created or sustained homogeneity or community in any meaningful sense: the “we” invoked by walzer is counterfactual; united states society is rife with domination and exclusion based on race, sex, class, sexuality, and other categories.67 in any case, on the community principle underlying the model, when people enter illegally, they have violated not only a rule, but as linda bosniak has put it, they have violated “the community-as-nation” itself.68 it is an easy step from this to a nativist backlash predicated in large part on maintaining accumulated racial capital in citizenship. v. conclusion citizenship serves capital and runs parallel with it: citizenship is bestowed upon “others” only when they have proven their worth, while citizenship is guaranteed to those who are born within the geographical boundaries of the state or have requisite parentage.69 this designation of citizenship status serves a “wealthpreserving” function in society, as it ensures that the “natural lottery” of birth circumstances (such as place of birth or parental origin) determines citizenship status and the benefits of political community membership that accompany it.70 the natural lottery of race is likewise validated in a racialized citizenship, wherein one’s 66  see, e.g., press release, u.s. border patrol, u.s. customs and border protection officials meet with u.s. northern command to coordinate security efforts (feb. 7, 2011), available at http://www.cbp.gov/xp/cgov/ newsroom/news_releases/national/02072011_3.xml (describing growing border patrol operations including the involvement of u.s. military assistance). 67  see e.g., dred scott v. sanford, 60 u.s. 393 (1857) (declaring that, as property, mr. scott could neither sue for his freedom nor be protected by laws against assault); brown v. bd. of educ., 347 u.s. 483 (1954) (prohibiting separate but equal education for black students); u.s. const. amend. xix, § 1 (finally granting women the right to vote in 1920); varnum v. brien, 763 n.w.2d 862 (iowa 2009) (declaring a statute limiting civil marriage to only unions between a man and a woman unconstitutional). many states still deny the right to marry based solely on sexual orientation. 68  bosniak, exclusion and membership, supra note 6, at 1002. 69  ayelet scachar, the worth of citizenship in an unequal world, 8 theoretical inquiries l. 367, 371 (2007) (“the almost casual acceptance of ascription as a basis for assigning political membership represents a ‘blind spot’ in contemporary citizenship theory: the assumption that reliance on birth is somehow a ‘natural’ and ‘apolitical’ event.”). 70  id. at 369-76. http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/02072011_3.xml http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/02072011_3.xml 325 citizenship as accumulated racial capital vol. 1:3 whiteness represents surplus value skimmed from the denigration of nonwhites: racial capital accumulated. it is important to recognize that the racialized conception of american citizenship is structurally flawed, and not simply that the benefits of american national membership are unfairly distributed. in other words, reformist tinkering with voting laws, for example, will probably not fix the problem because the problem is that citizenship has been racially constructed. american citizenship and citizen virtue are defined ultimately by whiteness: that amalgam of expectation and privilege that is invisible to its white beneficiaries. if there is a strategy for reinventing american citizenship it lies in reinventing whiteness as race-conscious and non-discriminatory. but, accumulated racial capital will not be easily dispersed or redistributed, and it is not clear that law can provide the tools with which to make the attempt. 1-hull post author approval 2013 columbia journal of race and law   1         diversity in the legal profession: moving from rhetoric to reality helia garrido hull* the legal profession, more than others, is uniquely positioned at the helm of social change. the law is shaped by cultural shifts, and it is the lawyer that plays the role of architect. yet, the legal profession is the least diverse and inclusive profession of all, failing to adapt to the ever changing demographics of american society. despite numerous attempts at creating diversity and inclusion within the profession, the legal profession remains today much as it was at its inception—white, male dominated. this article aims to make contributions that will raise awareness to the crucial need for diversity and inclusion within the legal profession such as logical measures beyond sanctions, which are cost effective, responsible, and deeply rooted in the profession. the current call by diversity groups for an affirmative ethics rule that would sanction lawyers who engage in discrimination in employment practices would be costly and duplicative. thus, this article discusses a cross-section of available rules that are less costly, more manageable alternatives. the article proposes that the goal of diversity and inclusion within the profession cannot be forced, but must be realized through consistent measures aimed at creating accountability, educational awareness, and building supporting connections at each level of the professional hierarchy. i. introduction……………………………………………………………. 2 ii. a history of exclusion within the legal profession ... 4 a. gender in the profession: it’s still a man’s world ………………….. 6 b. race and ethnicity: a profession void of color ……………………. 8 c. disability: incorporating the differently abled …………………….. 9 d. sexual orientation: out and still underrepresented ……………….. 10 e. towards closing the gap: current efforts towards racial inclusion fall flat ………………………………………………………………... 11                                                                                                                           * associate professor of law and coordinator of the student professionalism enhancement program, barry university dwayne o. andreas school of law; b.a. providence college; j.d. stetson university college of law. the author would like to thank her research assistant, angela r. wright, for her diligence, enthusiasm, and patience. the author would also like to thank her husband, eric v. hull, and children, kayleigh and tyler, for their never-ending love, support, and encouragement. 2 diversity in the legal profession vol. 4:1     1. getting minorities to law school …………………….……... 12 2. navigating the landmines of law school and entry into the bar ……………………………………………………………... 13 3. recruitment, retention, and promotion of minority attorneys ……………………………………………………… 14 iii. to regulate or not: forcing diversity through mandatory inclusion ……………………………………………….. 15 iv. recommendations …………………………………………………….. 19 a. create a central diversity database ………………………………… 19 b. continuing legal education requirement: retraining the brain … 20 c. cle-based mentoring ……………………………………………….. 21 v. conclusion………………………………………………………………... 22 “diversity may be the hardest thing for a society to live with, and perhaps the most dangerous thing for a society to be without.”1 i. introduction law has historically served as a key driver of social change.2 steeped in rigid traditions, the law has proven remarkably malleable in addressing changing perspectives on what society is willing to accept as the norm.3 as a direct result of legal advocacy,4 equality of opportunity in the workplace has emerged as an expectation in modern day society. today, most professions have embraced a culture of inclusiveness that encourages diversity with respect to gender, race, ethnicity, disability, sexual orientation, and other classifications. yet, the legal community has been slow to embrace such change. despite being the architects of significant, positive societal advancement over the last half of the twentieth century, members of the legal community continue to struggle with the inequality that exists                                                                                                                           1 william s. coffin, the heart is a little to the left: essays on public morality 69–70 (1999). 2 austin sarat & stuart a. scheingold, cause lawyers and social movements 1 (austin sarat & stuart a. scheingold eds., stanford university press 2006). 3 id. 4      griggs v. duke power co., 401 u.s. 424 (1971) (holding that where an employer uses a neutral policy or rule, or utilizes a neutral test, and this policy or test disproportionately affects minorities or women in an adverse manner, then the employer must justify the neutral rule or test by proving it is justified by business necessity); phillips v. martin marietta corp., 400 u.s. 542 (1971) (holding that title vii’s prohibition against sex discrimination means that employers cannot discriminate on the basis of sex plus other factors such as having school age children); mia macy, 2012 eeopub lexis 1181 (2012) (equal employment opportunity commission held that discrimination against an individual because that person is transgender is discrimination on the basis of sex and therefore is covered under title vii of the civil rights act of 1964); e.e.o.c. v. convergys customer mgmt. grp., inc., 491 f.3d 790 (8th cir. 2007) (held that an employer’s duty to reasonably accommodate an employee’s disability is triggered where the employee makes the employer “aware of the need for an accommodation,” even though he does not request a specific accommodation). 2013 columbia journal of race and law   3         within their own ranks.5 today, the legal profession remains the least diverse white-collar profession in this country.6 while the root cause of this lack of diversity may be found in inadequacies within the educational system, the impact is compounded by the legal community’s unwillingness to take the effective steps necessary to promote diversity within the profession.7 america is becoming more diverse.8 for the first time in history, ethnic minorities make up more than half (50.4%) of all children born in this country.9 non-hispanic whites are projected to become a minority group by 2042.10 further, it is estimated that 20.5% of the workforce is currently comprised of persons with disabilities.11 these changes in demographics warrant changes to the legal profession.12 yet, the legal community remains critically out of touch with changing demographics.13 the profession is still comprised primarily of white males, much as it was throughout its entire history, and there is little hope that change is imminent.14 indeed, the american bar association (aba) has openly acknowledged that current efforts to obtain diversity within the profession are likely to fail.15 despite the aba’s express commitment to eliminate bias within the profession, minorities, women, individuals with disabilities, and persons of differing sexual orientations and gender identities remain underrepresented in the legal profession. for change to occur, both mentoring and educational programs should be widely implemented, to address and eventually eliminate traditional perspectives that act to discourage diversity within the profession. further, the legal profession should develop a centralized database that will track its progress towards diversity, offering an opportunity for transparency in hiring and promotional decisions that is currently lacking within the profession. section ii of this article briefly examines the development of the legal profession in the united states and its long history of exclusion of groups that remain underrepresented in the profession today. it then examines the current diversity initiatives within the legal profession and explores why these initiatives have largely failed to achieve their desired goal of increasing diversity. section iii evaluates the need for additional regulation to achieve diversity and examines alternatives to regulation that have had some success in promoting understanding of the values of diversity within the profession. section iv offers recommendations for action to promote diversity.                                                                                                                           5 see kathleen nalty, diversity: lagging behind in the legal profession, diversity is natural (2011), http://www.diversityisnatural.com/knalty/. 6 id. 7 see generally sarah e. redfield, diversity realized: putting the walk with the talk for diversity in the legal profession (vandeplas publ’g, 2009). 8 see mitra toossi, a century of change: the u.s. labor force, 1950–2050, monthly labor review, may 2002, at 15–16, available at http://www.bls.gov/opub/mlr/2002/05/art2full.pdf. 9 most children younger than age 1 are minorities, u.s. census bureau (may 17, 2012), http://www.census.gov/newsroom/releases/archives/population/cb12-90.html. 10 an older and more diverse nation by midcentury, u.s. census bureau (aug. 14, 2008), http://www.census.gov/newsroom/releases/archives/population/cb08-123.html. 11 office of disability emp’t policy, u.s. dep’t of labor, http://www.dol.gov/odep/ (last visited oct. 21, 2013). 12 am. bar ass’n, diversity in the legal profession: the next steps 1, 5 (2010), http://www.americanbar.org/content/dam/aba/administrative/diversity/next_steps_2011.authcheckdam.pdf [hereinafter aba next steps]. 13 redfield, supra note 7, at xv. 14 see bureau of labor statistics, labor force characteristics by race and ethnicity, 2011 table 8 (2011), http://www.bls.gov/cps/cpsrace2011.pdf. 15 am. bar ass’n leadership, off. of diversity initiatives, http://www.americanbar.org/groups/ leadership/diversity.html (last visited oct. 21, 2013). 4 diversity in the legal profession vol. 4:1     ii. a history of exclusion within the legal profession the history of exclusion in the legal profession finds its roots in the origin of common law. the early common law in england developed largely to protect property rights, which typically could only be held by the king or select males who obtained some interest in property from the king.16 under the patriarchal view of early english common law, women were viewed as chattel and had no individual legal rights.17 the court, as it existed, was utilized primarily as a mechanism to enforce property rights, and cases were typically resolved by males appointed to the court by the nobility.18 early american legal practice looked much the same as it did in england; male lawyers trained other males to become lawyers through a highly selective, exclusive apprenticeship process.19 as the legal community grew, prominent male lawyers gathered to address the need for a national organization. in 1878, the lawyers from twenty-one states convened to create the aba.20 the aba was formed to “advance the science of jurisprudence, promote the administration of justice and uniformity of legislation throughout the union, uphold the honor of the profession of the law, and encourage cordial intercourse among members of the american bar.”21 noticeably absent from these foundational goals was any commitment to promote diversity within the profession. with no guiding principle on inclusion, the aba, and the legal profession as a whole, continued its exclusive practices. in 1844, macon bolling allen became the first african american admitted to practice law in the united states.22 however, more than thirty years later when a prominent group of lawyers formed the aba as part of the progressive movement, the group excluded all black lawyers from membership.23 it was not until 1943 that african americans were knowingly admitted for membership into the aba.24 women did not fare much better. in 1868, phoebe couzens became the first woman admitted to law school, and one year later, arabella mansfield became the first woman admitted to practice law in the united states when she passed the iowa bar examination.25 yet, women were not formally admitted into law school until the following year and were not admitted to the aba until 1918.26                                                                                                                           16 following his victory at the battle of hastings, william the conqueror consolidated all ownership in property in england under the crown. he granted estates in certain land to select males in return for the males’ pledges of allegiance of service to the crown. joseph william singer, subprime: why a free and democratic society needs law, 47 harv. c.r.–c.l. l. rev. 141, 146–47 (2012). 17 1 william blackstone, commentaries *442–45 (noting that the very being or legal existence of the woman was suspended during the marriage during that period). 18 the court of common pleas had exclusive jurisdiction over matters of real property. the court was staffed by a single chief justice and a number of puisne justices, who were required to be serjeants-at-law (an order of barristers at the english bar created as a body under king henry ii). 19 see ralph michael stein, the path of legal education from edward i to langdell: a history of insular reaction, 57 chi.-kent l. rev. 429, 438–40 (1981). 20 history of the american bar association, am. bar ass’n, http://www.americanbar.org/utility/about_the_aba/ history.html (last visited jan. 25, 2014). 21 aba timeline, am. bar ass’n, http://www.americanbar.org/utility/about_the_aba/timeline.html (“firsts: american bar associations forms”) (last visited jan. 25, 2014). 22 see first african american lawyers, just the beginning foundation, http://www.jtbf.org/index.php?src=gendocs&ref=firstafricanamericanlawyers&category=inte (last visited jan. 25, 2014) (showing that macon bolling allen was admitted to practice in maine in 1844). 23 ololade olakanmi, segregation within national professional associations 1, 6, http://www.ama-assn.org/resources/doc/ethics/segregation.pdf. 24 id. (noting that three african–american attorneys were unknowingly admitted into the american bar association in 1912, but it was not until 1943 that african americans were knowingly admitted for membership). 25 sheryl j. grana, women and justice 116–17 (rowman & littlefield pubs., 2d ed. 2010). 26 selma moidel smith, women lawyers: a century of achievement, experience, fall 1998, at 6, 10. 2013 columbia journal of race and law   5         since its inception, the aba has played an integral role in the development of the legal profession in the united states.27 as the largest voluntary organization in the world, the aba exerts considerable influence through its actions. since the early 1980s, the aba has actively endeavored to develop a cohesive plan that fully integrates members of diverse groups (including women, racial and ethnic minorities, persons with disabilities, and lgbt persons) into the legal profession.28 in 1986, a report with recommendations was presented to the aba house of delegates to expand the goals of the aba to include promoting diversity of minorities and women in the profession.29 the aba adopted this recommendation as goal ix whereby the aba resolved “[t]o promote full and equal participation in the profession by minorities and women.”30 these goals were expanded by the aba in 1999 to include “persons with disabilities” and then again in 2007 to include “persons of differing sexual orientations and gender identities.”31 the aba amended the language in 2008 to broaden its scope and chose to rename the provision goal iii. the express purpose of goal iii is to eliminate bias and enhance diversity within the profession by: (1) promoting the full and equal participation in the association, the legal profession, and the justice system by all persons; and (2) eliminating bias in the legal profession and the justice system.32 the aba has adopted the position that the legal community benefits from diversification, and has espoused four rationales to support greater diversity within the profession. first, the aba believes that diversity is consistent with democracy. according to the aba, diversity in the profession is necessary because “lawyers and judges have a unique responsibility for sustaining a political system with broad participation by all its citizens.”33 the aba added that “a diverse bar and bench creates greater trust in the mechanisms of government and the rule of law.”34 second, diversity makes good business sense. the aba stated that “business entities are rapidly responding to the needs of global customers, suppliers, and competitors by creating workforces from many different backgrounds, perspectives, skill sets, and tastes.”35 to meet these requirements, law firms must recognize that “clients expect and sometimes demand lawyers who are culturally and linguistically proficient.”36 third, the aba recognized that legal training provides individuals with the skills they need to become effective leaders in society, because “individuals with law degrees often possess the communication and interpersonal skills and the social networks to rise into civic leadership positions, both in and out of politics.”37 as such, “access to the profession must be broadly inclusive.”38 finally, the aba acknowledged that diversity within the legal profession is necessary to meet the changing demographics in the united states.39 it recognized that “the profile of lgbt lawyers and lawyers with disabilities will increase more rapidly . . . and that [the] u.s. will soon become a ‘majority minority’ country.”40                                                                                                                           27 am. bar ass’n, aba disability statistics report (2011), http://www.americanbar.org/content/dam/ aba/uncategorized/2011/20110314_aba_disability_statistics_report.authcheckdam.pdf [hereinafter aba disability]. 28 aba next steps, supra note 12, at 9. 29 am. bar ass’n, goal iii (formerly goal ix) report card: an annual report on women’s advancement into leadership positions in the american bar association 4 (2009), http://www.americanbar.org/content/dam/aba/migrated/women/goalix/2009goal_iii_women.authcheckdam.pdf. 30 id. 31 id. 32 id. 33 aba next steps, supra note 12, at 5. 34 id. 35 id. 36 id. 37 aba next steps, supra note 12, at 5. 38 id. (agreeing with justice sandra day o’connor’s view that the legal profession must be broadly inclusive to serve this important purpose in society). 39 id. 40 id. 6 diversity in the legal profession vol. 4:1     the aba’s efforts and the rationales it adopted in support of its call for greater diversity strongly suggest that promotion of diversity within the profession is a means toward preserving the profession’s reputation. yet, the aba cannot control lawyer attitudes or beliefs, and it cannot influence many of the factors underlying the lack of diversity in the legal profession. although the legal profession has changed, the culture of exclusion that developed early in the profession persists.41 as a result, the aba has acknowledged that its efforts alone are insufficient to increase diversity within the legal community.42 recent data on diversity within the legal profession suggests that the aba is correct and that additional action is warranted. a. gender in the profession: it’s still a man’s world during the last fifty years, the rights and roles of women in society changed substantially, but opportunities for women in the law were slow to emerge. the male-dominated legal profession was slow to embrace the entry of women into the profession, even women possessing superior intellect such as former supreme court justice sandra o’connor. following her graduation near the top of her class at stanford law school in 1952, justice o’connor could not find a job as an attorney.43 the only private sector job offer she received was one as a legal secretary.44 comparatively, former supreme court chief justice william rehnquist, who similarly graduated at the top of stanford’s 1952 class, had a much different experience. justice rehnquist was hired for the prestigious position of law clerk for justice robert h. jackson promptly after graduation, entered a successful private practice a year later, and in 1972 was nominated and confirmed as associate justice of the united states supreme court,45 ten years before his fellow law school classmate, sandra o’connor. the trend towards greater gender inclusion in the legal profession slowly continued and female lawyers eventually found their place in the profession, albeit not to the same extent of men. as late as 1960, 96% of all lawyers in the united states were white men.46 that began to change as women entered the legal profession in larger numbers in the 1970s.47 the composition of law school classes increased from approximately 10% female in 1970 to a peak of almost 50% in 2000.48 with this change, it appeared that the percentage of women would eventually approach or even surpass the percentage of males in the profession. that did not occur, however, as the number of females enrolling in and graduating from law schools thereafter started to decline. the entering law school class for 2011-12 was comprised of 53.3% men and 46.7% women. today, women comprise only one third of the legal profession.49 the downward trend is related, in part, to the great disparity in gender equality that still exists in the legal profession.                                                                                                                           41 see id. at 12 (citing statistics showing a lack of diversity). 42 aba next steps, supra note 12, at 5. 43 chang-tai hsieh et al., the allocation of talent and u.s. economic growth 2–3 (nat’l bureau of econ. research, working paper no. 18693, 2012), available at http://www.nber.org/papers/w18693. 44 id. 45 joan biskupic, rehnquist left supreme court with conservative legacy, usa today (sept. 29, 2005, 2:15 pm), http://usatoday30.usatoday.com/news/washington/judicial/supremecourtjustices/2005-09-04-rehnquist-legacy_x.htm. 46 chrystia freeland, equal rights makes sense for u.s. economy, n.y. times (may 17, 2012), http://www.nytimes.com/2012/05/18/us/18iht-letter18.html?_r=0&g=4711074dfeda43cf64940c850012fb66. 47 am. bar ass’n, first year and total j.d. enrollment by gender 1947–2011 1–2, available at http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics /jd_enrollment_1yr_total_gender.authcheckdam.pdf. 48 id. 49 am. bar ass’n, a current glance at women in the law 2 (2013), available at http://www.americanbar.org/content/dam/aba/marketing/women/current_glance_statistics_feb2013.authcheckdam. pdf. 2013 columbia journal of race and law   7         today, less than half (45%) of first and second year law firm associates are female.50 those women who continue their careers face less opportunity for advancement than their male counterparts. for example, women comprise only 19.9% of partners,51 15% of equity partners,52 and only 4% of managing partners in the largest 200 law firms.53 similar trends exist for women seeking to serve in house as general counsel. among all general counsel for fortune 500 companies, approximately one fifth (21.6%) are female.54 among all general counsel of fortune 501–1000 companies, only 15.6% are women.55 within the aba, women also continue to lag behind men in leadership roles. of the 136 presidents of the aba, only five have been women.56 the house of delegates, the policy-making body of the association, continues to be controlled (68.1%) by men.57 currently, fourteen jurisdictions have no women delegates in the house of delegates.58 women constitute only 28.9% of the aba’s board of governors, the body responsible for overseeing the general operation of the association and the development of specific plans of action.59 this is less than the ratio of women in the profession and women lawyers in the aba.60 further, the percentage of women section and division chairs continues to decline, from a high of 39.3% in 2010 to 25.9% in 2013.61 in addition to facing inequities with respect to opportunities, women frequently face gender bias with respect to compensation. in 2011, women lawyers earned only 86% of what male lawyers earned.62 the trend is similar for women equity partners in the 200 largest firms, who earn roughly 89% of the compensation earned by their male peers.63 the aba has recently initiated efforts to promote genderpay equality at law firms, but there is no evidence that such efforts will be effective in changing this trend.64 many female attorneys also suffer from other attitudinal barriers that may prevent their                                                                                                                           50 nat’l ass’n for law placement, representation of women among associates continues to fall, even as minority associates make gains 5 (december 13, 2012), www.nalp.org/uploads/pressreleases/ 2012womenandminoritiespressrelease.pdf. 51 id. 52 barbara m. flom, report of the seventh annual national survey on retention and promotion of women in law firms 3 (2012), available at http://nawl.timberlakepublishing.com/files/nawl%20 2012%20survey%20report%20final.pdf. 53 id. at 5. 54 id. 55 minority corporate counsel ass’n, mcca’s 13th annual general counsel survey: measuring the progress of the nation’s legal leaders 19–29 (2012), available at http://content.yudu.com/a1yfrd/divthe barseptoct2012/resources/index.htm; see also am. bar ass’n, a current glance at women in the law 3 (2013), available at http://www.americanbar.org/content/dam/aba/marketing/women/current_glance_statistics_feb2013. authcheckdam.pdf. 56 see am. bar ass’n, 2012-2013 leadership directory 293–92, available at http://www.americanbar.org/ content/dam/aba/administrative/leadership/2012-2013-aba-leadership-directory-redbook.authcheckdam.pdf; see also a current glance, supra note 55 at 7. 57 am. bar ass’n, goal iii report: an annual report on women’s advancement into leadership positions in the american bar association 6 (2013), available at http://www.americanbar.org/content/dam/aba /administrative/women/2012_goal3_women.authcheckdam.pdf. 58 id. 59 id. 60 id. 61 id. at 5. 62 bureau of labor statistics, household data annual averages 3 (2011), www.bls.gov/cps/ cpsaat39.pdf. 63 flom, supra note 52, at 5. 64 american bar association launches new initiative to promote gender pay at law firms, equality law (mar. 15, 8 diversity in the legal profession vol. 4:1     advancement. for example, male attorneys and judges have been reprimanded for engaging in disparaging and condescending name-calling toward women.65 these pressures and others may influence the percentage of women in law schools and contribute to declining enrollment each year since 2002.66 ultimately, this trend does not bode well for increasing female diversity in the profession. b. race and ethnicity: a profession void of color despite decades of change impacting racial and ethnic diversity in the workplace, the legal profession remains one of the least racially and ethnically diverse professions in the united states.67 minorities are significantly underrepresented at all levels of the legal profession relative to their percentage of the general population. while 72% of the u.s. population in 2010 was caucasian,68 nearly 90% of all employed lawyers were white.69 of the remaining lawyers, 5.3% were black or african american, 4.2% were asian, and 3.2% were hispanic or latino.70 minority representation is highest among entry-level faculty (25.1% in 2008–09), law firm associates (19.5% in 2010), federal government attorneys (17.6% in 2006), and federal appellate judges (16.2% in 2010).71 however, minority representation is significantly lower among law partners (6.2% in 2010) and corporate counsel (11% in 2006).72 the trend is worse for minority women, who make up just 2% of all partners nationwide.73 racial and ethnic minorities also struggle to attain leadership positions within the aba. the aba elected its first african american president in 2003, and its first hispanic american president in 2009.74 no minority woman has ever held the presidency. minorities currently comprise less than 10% of the association’s membership, and their participation in leadership roles has increased in some areas and decreased in others.75 in 2011-12, seven of the thirty-eight (18.4%) elected members of the aba board                                                                                                                                                                                                                                                                                                                                                                                                         2013), http://www.equality-law.co.uk/news/3109/66/american-bar-association-launches-new-initiative-to-promotegender-pay-at-law-firms/. 65 see principe v. assay partners, 586 n.y.s.2d 182, 184 (sup. ct. 1992) (court sanctioned an attorney for referring to an opposing female attorney in a deposition as “little girl,” “little mouse,” and “little lady”-words that the court described as “a paradigm of rudeness” that “condescend, disparage, and degrade a colleague upon the basis that she is female”); see also in re kirby, 354 n.w.2d 410, 414–15 (minn. 1984) (judge censured for addressing two female attorneys as “lawyerette” and “attorney generalette”). 66 leigh jones, fewer women are seeking law degrees, nat’l l.j. (oct. 2, 2007), http://www.lawjobs.com/ newsandviews/lawarticlefriendly.jsp?id=900005557617&slreturn=20130922034236. 67 aba next steps, supra note 12, at 12. 68 lindsay hixson et al., the white population: 2010 3 (2011), available at http://www.census.gov/prod /cen2010/briefs/c2010br-05.pdf. 69 bureau of labor statistics, labor force characteristics by race and ethnicity 2011 22 (2012), available at http://www.bls.gov/cps/cpsrace2011.pdf. 70 id. 71 elizabeth chambliss, the demographics of the profession, in iilp review 2011: the state of diversity and inclusion in the legal profession 12 (2011), available at http://www.theiilp.com/resources/documents/iilp2011 _review_final.pdf. 72 id. 73 id. at 11. 74 see 101 african american firsts, blackpast.org, http://www.blackpast.org/?q=aah/101-african-americanfirsts (last visited nov. 10, 2013). see also american bar association elects miami lawyer stephen n. zack president-elect: first hispanic american prepares for aba’s highest office, am. bar ass’n (aug. 4, 2009), http://apps.americanbar.org/abanet/ media/release/news_release.cfm?releaseid=740. 75 am. bar ass’n, comm’n on racial & ethnic diversity in the profession 2012, goal iii report: the state of racial and ethnic diversity in the american bar association 6 (2012), available at 2013 columbia journal of race and law   9         of governors were minorities.76 overall, during the 2011-12 administration 34% of the total number of presidential appointments were made to minorities.77 c. disability: incorporating the differently abled individuals with disabilities are often considered america’s largest minority group.78 the reason for this is that many people do not openly reveal their disability and may exhibit no outward visible signs to indicate the presence of a disability. indeed, today, approximately, 20% of americans have a disability.79 greater recognition of disability, along with the introduction of methods used to accommodate individuals with special needs, has helped many students with disabilities thrive in the classroom. yet, individuals with disabilities are less likely to apply and be admitted to law school in the first place; this may be a consequence of the difficulty in overcoming the procedural barriers to admission, including the law school admissions test (lsat).80 for those who do matriculate, many face additional hurdles that have little to do with their ability to practice law. for instance, attitudinal barriers continue to impede employment opportunities for many of these individuals.81 as a group, individuals with disabilities face employment rates and salaries far below those of individuals without disabilities.82 in 2011, “only 2.6% of persons employed in the legal profession (e.g., lawyers, judges, magistrates, law clerks, court reporters, paralegals) had a disability.”83 but the problem may be worse, because many legal employers fail to keep data on opportunities made available for disabled individuals under the business case rationale.84 moreover, many people with disabilities purposely choose not to identify their disability status out of a fear of discrimination and bias that may result from such revelation.85 for example, a 2011 aba member survey showed that only 4.56% of its members responded as having a disability, a number that is far below the prevalence of disability within the u.s. population (20%).86 these problems have led the aba to promote disability diversity in the profession by asking legal employers to sign a pledge that affirms the signatory’s commitment to disability diversity.87 the aba has had mixed results with increasing opportunities for individuals with disabilities within its organization. in 2011-12, the number of lawyers who held leadership roles in the aba                                                                                                                                                                                                                                                                                                                                                                                                         http://www.americanbar.org/content/dam/aba/administrative/racial_ethnic_diversity/reg3rpt12_finalweb_updated 3_13_12.authcheckdam.pdf. 76 id. 77 id. 78 aba disability, supra note 27. 79 matthew w. brault, americans with disabilities: 2010, household economic studies 4 (2012), available at http://www.census.gov/prod/2012pubs/p70-131.pdf. 80 see am. bar ass’n, comm’n on disability rights, goal iii report, an annual report on the participation of persons with disabilities in aba leadership positions 7–8 (2012), available at http://www.americanbar.org/content/dam/aba/administrative/mental_physical_disability/2012_goaliii_cdr.authcheck dam.pdf [hereinafter goal iii disabilities]. 81 aba disability, supra note 27. 82 id. 83 goal iii disabilities, supra note 80, at 7. 84 id. 85 id. 86 id. 87 pledge for change: disability diversity in the legal profession, am. bar ass’n, http://www.americanbar.org/groups /disabilityrights/initiatives_awards/pledge_for_change.html (last visited nov. 10, 2013). 10 diversity in the legal profession vol. 4:1     increased from twenty-three to seventy.88 among all sections, divisions, and forums, approximately 44% had attorneys with disabilities in leadership positions.89 however, less than 3% of the members of the board of governors report having a disability, less than 2% of the 732 aba presidential appointments went to individuals who reported having a disability, and less than 1% of the 561 members of the house of delegates reported having a disability.90 these numbers do not fairly reflect the number of individuals with disabilities in the association and suggest more effort is needed to increase disability diversity. d. sexual orientation: out and still underrepresented approximately 4% of the general population identifies as lesbian, gay, bisexual, or transgender (lgbt).91 prior to 1971, there were no laws, ordinances, or policies prohibiting discrimination against lesbian women and gay men.92 the legal community has been instrumental in the development of laws that address discrimination on the basis of sexual orientation in employment, housing, and places of public accommodation.93 today, nine states and the district of columbia have laws against discrimination based on sexual orientation, gender identity, and expression.94 given the involvement of lawyers in this social change, it is somewhat surprising that it was not until august of 2007 that the aba created the commission on sexual orientation and gender identity to promote sexual orientation diversity and inclusion.95 despite the aba’s efforts, lgbt individuals remain underrepresented within the legal profession.96 the overall percentage of openly lgbt lawyers reported in the national association for law placement (nalp) directory of legal employers in 2012 increased to 2.07% from 1.88% in 2011.97 over half (56%) of all law offices reported at least one lgbt lawyer.98 the presence of lgbt lawyers continues to be highest among associates (2.69%) and in large law firms (3.22% in firms of 701 or more lawyers).99 openly lgbt partners are also best represented at large law firms with 701 or more lawyers (1.9%) compared with overall partners (1.58%).100 although progress has been made, more is needed to create an equitable environment for lgbt lawyers.101 lgbt attorneys often have negative perceptions of the opportunities available within the profession, which in turn leads to lower job satisfaction and commitment, which will likely translate into higher rates of                                                                                                                           88 goal iii disabilities, supra note 80, at 7. 89 id. 90 id. 91 gary j. gates, how many people are lesbian, gay, bisexual or transgender? 6 (2011), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/gates-how-many-people-lgbt-apr-2011.pdf. 92 william b. rubenstein et al., cases and materials on sexual orientation and the law xxvi (3d ed. 2008). 93 id. 94 1 karen moulding, sexual orientation and the law 716 (2012-2013) (these states include wisconsin, massachusetts, hawaii, connecticut, california, new jersey, rhode island, vermont, and minnesota). 95. am. bar ass’n, comm’n on sexual orientation & gender identity, goal iii report for 2011– 2012: fourth annual review of the status of lesbian, gay, bisexual, and transgender participation at the am. bar ass’n 4 (2012), available at http://www.americanbar.org/content/dam/aba/administrative/sexual_ orientation/2012_sogigoaliii.authcheckdam.pdf [hereinafter goal iii lgbt iv]. 96 moulding, supra note 94, at 716. 97. lgbt representation up in 2012, nat’l ass’n for law placement (jan. 2013), http://www.nalp.org/lgbt_ representation_up_in_2012 [hereinafter nalp]. 98 id. 99 id. 100 id. 101.see minority corp. counsel ass’n, the new paradigm of lgbt inclusion: a recommended resource for law firms (2010), available at http://www.mcca.com/_data/global/images/research/2010_lavbook_ %20final.pdf (explaining the unique challenges lgbt attorneys still experience). 2013 columbia journal of race and law   11         attrition and a corresponding decline in diversity.102 to promote retention, approximately 88% of all law firms are collecting data on diversity with respect to lgbt attorneys.103 lgbt attorney participation within the aba—much like lgbt participation in the legal profession itself—continues to be disproportionately low.104 of the aba’s 392,434 members, only 788 (0.2%) identified as lgbt.105 only one of the thirty-eight members of the aba board of governors identified as lgbt.106 although the number of entities that had participation of one or more lgbt members in both general membership and leadership increased by 44% from 2011-12, the number of entities that had participation of one or more lgbt members in leadership roles decreased by 28%.107 total lgbt member presidential appointments increased, however, from 2.92% (22 of 751) in 2011-12 to 3.96% (29 of 732) in 2012-13.108 although there has been progress with regard to lgbt acceptance within the legal community, this progress must be viewed against the reality that in many areas of the country it remains perfectly legal for a private sector employer to deny employment solely on the basis of sexual orientation.109 as a result, opportunities for lgbt lawyers are typically found in areas that are more tolerant of lgbt individuals. approximately 60% of the reported openly lgbt lawyers are employed in just four cities: new york city, washington d.c., los angeles, and san francisco. the lgbt populations in these cities exceed the national average for these groups. thus, it is unsurprising that more members of these groups seek opportunities there.110 the percentage of openly lgbt summer associates is also higher, about 4.4% compared with 3.47% nationwide, in these same four cities.111 e. towards closing the gap: current efforts towards racial inclusion fall flat the history of america is one marked by the evils of racial discrimination and exclusion. race, more than any other minority class distinction, has been the focus of diversity efforts to mitigate the deep-seated effects of discrimination. even though society has come a long way since the days of racial segregation, there is still much to be done towards realizing true racial diversity in society and inclusion in the legal profession. as part of its effort to eliminate bias and enhance diversity within the legal profession, the aba has worked closely with state bar associations and other non-profit organizations to develop methods and practices that the profession can utilize to promote diversity on all levels.112 significant emphasis has been placed on so called “pipeline” programs designed to encourage racial minorities to pursue a legal career. these programs typically follow minority students throughout their academic careers with a goal of improving diversity in the legal profession by facilitating those students’ law school entrances and eventual entries into the legal profession. each stage of these programs has achieved mixed results.                                                                                                                           102 id. 103 nalp, supra note 97. 104 am. bar ass’n comm’n on sexual orientation & gender identity, goal iii report for 2012– 13: fifth annual review of the status of lesbian, gay, bisexual, and transgender participation at the american bar association 5 (2013), available at http://www.americanbar.org/content/dam/aba/administrative/ sexual_orientation/2013_sogi_goaliii.authcheckdam.pdf [hereinafter goal iii lgbt v]. 105 id. 106 id. 107 id. 108 id. 109 moulding, supra note 97, at 716. 110 gary j. gates & frank newport, lgbt percentage highest in d.c., lowest in north dakota, gallup (feb. 15, 2013), http://www.gallup.com/poll/160517/lgbt-percentage-highest-lowest-north-dakota.aspx. 111 nalp, supra note 97. 112 diversity, am. bar ass’n, http://www.americanbar.org/portals/diversity.html (last visited feb. 20, 2013). 12 diversity in the legal profession vol. 4:1     1. getting minorities to law school to promote interest in the legal profession, some state bar associations and organizations are reaching out to those groups that are underrepresented in the legal community and encouraging them to consider a career in the legal profession.113 under this approach, minority students are mentored, supported financially, encouraged to continue their education into law school, and then supported throughout law school and as they move into the profession.114 for example, groups such as legal outreach in new york city utilize a high school-to-college pipeline that helps minority, inner city children develop the critical skills they will need to graduate from high school and succeed in college, while simultaneously incorporating basic legal principles into the curriculum to stimulate early interest in the practice of law.115 other groups, such as street law, inc., identify high school students of color and work to educate them about the law, democracy, and human rights to encourage them to pursue legal careers.116 this group has teamed with the law school admission council (lsac) to improve diversity within the law school applicant pool and legal profession at large.117 the aba created the council on legal education opportunity (cleo), one of its non-profit entities, in 1968 to diversify the legal profession.118 cleo has worked to help minority, low-income, and disadvantaged students gain access to law school, successfully matriculate, and pass the bar exam.119 lsac offers need-based fee waivers for the lsat, registration with lsac, and application processing.120 many law schools also offer need-based fee waivers for application fees to encourage a more diverse applicant pool.121 a variety of scholarships is now available to draw minority students to law school in an effort to diversify the legal profession.122 ostensibly, these efforts appear to provide sufficient incentives for minority students to enter the legal profession. in reality, these efforts have not been very effective. the legal profession reflects the diversity of law school students, and there are significant deficits in the pipeline approach. as one recent report noted, the pipeline approach has not been successful in increasing diversity within the law school community because there are too few under-represented minorities moving through the pipeline, too                                                                                                                           113.attorney works to promote diversity in law, nat’l pub. radio (june 12, 2007), http://www.npr.org/templates /story/story.php?storyid=10982535. 114 id. 115 id. 116 diversity, st. law, http://www.streetlaw.org/en/topics/diversity (last visited jan. 25, 2014). 117. law school diversity pipeline program, st. law, http://www.streetlaw.org/en/programs/law_school _diversity _pipeline_program (last visited jan. 26, 2014). 118 what is cleo, cleo, http://www.cleoadmin.com/all_about_cleo/index.htm (last visited jan. 26, 2014). 119 id. 120 see the lsat: fee waivers for the lsat and credential assembly service (cas), law sch. admissions council, http://www.lsac.org/jd/lsat/fee-waivers (last visited nov. 2, 2013). 121 see, e.g., fee waiver information, univ. of kan. sch. of law, http://www.law.ku.edu/fee-waivers (last visited nov. 10, 2013). 122 today, a large variety of legal scholarships exists to help promote diversity in the law school community. these include: the naacp scholarship fund, sexual orientation scholarships (lgbt); the dickstein shapiro diversity scholarship; michael greenberg (lgbt) student writing competition, the national lgbt bar association; the american association of university women educational foundation; the leonard c. horn scholarships, the miss america organization; the leadership institute scholarship, the leadership institute for women of color attorneys in law & business; the adam a. milani disability law writing competition, the aba commission on mental & physical disability; the alexander graham bell association for the deaf scholarship; the american council of the blind scholarship. 2013 columbia journal of race and law   13         few graduating high school, too few persisting and succeeding in college, and too few presenting lsat scores and grade point averages (gpas) that meet today’s requirements for admission to law school.123 the lsat represents a significant obstacle for many minority students and has proven particularly onerous for african-american students.124 for example, in 2008 the average lsat score for blacks was 144, but 150 for those admitted; whereas, the average lsat score for whites was 155, but 157 for those admitted.125 given that the lsat is one of the most important criteria used in admission decisions, this trend suggests that african americans will continue to struggle to gain entry into law school. while minority enrollment in law schools has generally increased over several decades, today minority enrollment is flat or decreasing and stands at about twenty percent.126 african americans constitute the largest racial minority group that remains underrepresented in the legal profession, and their low enrollment in law school suggests that the problem of diversity in the profession will remain absent additional action. 2. navigating the landmines of law school and entry into the bar critics of the pipeline approach also stress that encouraging minorities to attend law school is only part of the battle. once admitted, minorities must find a reason to remain. evidence suggests that many minority students who enroll in law school experience racial and ethnic bias by fellow students that negatively shape their view of the legal profession.127 achieving diversity in the legal profession for minorities will take more than just increasing enrollment. it will require improving the experience of those who enter.128 a recent study evaluating minority perspectives of their law school experience revealed some startling results. many students noted that bias against minorities and racism is palpable in the classroom.129 this is particularly true in classes that openly discuss the evolution of social relationships and its impact on issues such as race relations, women’s suffrage, disability rights, and sexual orientation discrimination.130 within the larger law school community, these issues persist. minorities admitted through alternative admissions standards are often subjected to harsh criticism about the unfair process. for many minorities, these comments are less about the process and more about other students’ deeply ingrained negative perception regarding the abilities of minorities.131 indeed, some have argued that such alternative admission standards harm aspiring minority law students more than they help the students.132 despite significant changes in race relations in the united states, many believe race still matters for those who seek to become american lawyers.133 from the perspective of many african americans who progressed through the pipeline and into law school, “race is still a pervasive factor in navigating the                                                                                                                           123 redfield, supra note 7, at 2–3, 9. 124 id. 125 id. at 49. 126 see, e.g., graphs and data, a disturbing trend in law sch. diversity, http://blogs.law.columbia.edu/ salt/(last visited nov. 10, 2013) (showing there was a 7.5% decrease in the proportion of african americans in the 2008 class as compared with the 1993 class). 127 dorothy h. evensen & carla d. pratt, the end of the pipeline: a journey of recognition for african americans entering the legal profession 2 (2012). 128 id. 129 id. at 56. 130 id. 131 evensen & pratt, supra note 127, at 57, 98 (noting that black students are often confronted with the reality that their non-black peers view them as intellectually inferior “affirmative action babies”). 132 id. at 93. 133 id. at 90. 14 diversity in the legal profession vol. 4:1     pipeline to the legal profession.”134 many minority students develop a belief early in law school that they must work harder to be recognized for the same actions.135 once a minority student experiences such biases, that student will likely never feel that he or she is viewed as an equal whether in the classroom or in the law firm. this reality has far-ranging implications and plays a significant role in any effort to achieve long-term diversity within the profession. navigating all of the social landmines that emerge during law school is only part of the challenge for minority law students. as a group, minorities have lower pass rates on the bar exam than nonminorities.136 this is particularly true for african americans, whose average national first time pass rates over the past twenty years have averaged thirty percent lower than caucasians.137 3. recruitment, retention, and promotion of minority attorneys once matriculated, minorities must have meaningful opportunities to gain employment in the legal profession. to address the fact that many minorities are underrepresented, some firms now actively consider diversity in their hiring practices. for example, one firm has enhanced its efforts to improve the firm’s diversity by enlisting the services of a diversity recruiter to discover and promote diverse legal talent.138 that individual works closely with the firm’s diversity chair to promote diversity within the firm.139 the firm provides minority scholarships to promote its efforts at recruitment.140 another firm employs a diversity committee that meets regularly to “discuss both industry and firm initiatives, to consult with diversity experts, and to implement plans that will promote diversity goals.”141 another firm hosts a half-day diversity seminar for its attorneys and clients, which have incorporated lessons that seek to broaden understanding of diversity issues with thought-provoking and interactive programming presented by nationally recognized diversity experts.142 while these pre-hiring diversity initiatives are beneficial, they are isolated and do not reflect the more general preferential hiring patterns. moreover, they do not address opportunities available to minorities once employed. much more is needed to sustain diversity in the profession. indeed, the aba has stated that, “even when diversity efforts were successful at recruitment, they often failed to improve the retention of diverse attorneys.”143 the aba added that “while the legal profession has achieved some diversity in the ‘lower ranks,’ diversity remains thin in the ‘higher ranks’ of law firm managing and equity partners, general counsel, state or federal appellate judges, and tenured law professors.”144 even if the current trends were reversed and law schools admitted and graduated substantially more minorities and legal employers hired more minorities, meaningful diversification within the profession would not necessarily follow. given that almost ninety percent of lawyers in the profession                                                                                                                           134 id. 135 evensen & pratt, supra note 127, at 94. 136 redfield, supra note 7, at 49. 137 id. 138 see, e.g., initiatives, jackson lewis, http://www.jacksonlewis.com/diversity/initiatives.php (last visited nov. 10, 2013). 139 id. 140 id. 141 see, e.g., our commitment to diversity, davis & gilbert llp, http://www.dglaw.com/diversity.cfm (last visited nov. 10, 2013). 142. see, e.g., diversity, barack ferrazzano kirschbaum & nagelberg llp, http://www.bfkn.com/aboutdiversity.html (last visited nov. 10, 2013). 143 aba next steps, supra note 12, at 12 (discussing the 2006 aba commission on women in the profession’s report, visible invisibility: women of color in law firms). 144 id. 2013 columbia journal of race and law   15         are white, diversity may remain elusive until many white practitioners leave the field.145 indeed, the aba has stated that “the proportion of minorities in the legal profession is not likely to attain parity with that in the general population in the foreseeable future.”146 the failure to achieve diversity within the legal profession despite decades of efforts by the aba, state bars, and legal employers has led to calls for increased regulation of lawyers. iii. to regulate or not: forcing diversity through mandatory inclusion in 2012, the institute for inclusion in the legal profession (iilp) submitted a recommendation to the standing committee on ethics and professional responsibility of the aba to amend the model rules of professional conduct to address diversity in the profession.147 iilp recommended that the model rules should be amended to make the attainment of diversity in the profession an affirmative ethical duty among lawyers.148 the iilp asserted that despite significant prior efforts to promote diversity, the legal profession lags behind other professions in terms of diversity.149 the iilp effectively took the position that, absent mandatory regulation, the profession was incapable of reaching an appropriate degree of diversity.150 the aba rejected the proposed amendment. in a letter to the iilp, the aba opined that additional regulation was unwarranted because the model rules already address the achievement of diversity.151 specifically, the aba asserted that model rule 8.4, comment 3 clarifies “that any conduct that manifests by words or conduct bias or prejudice is prejudicial to the administration of justice, and, therefore, is prohibited.”152 the propriety of mandating diversity through professional rules of conduct is at best questionable. adding new regulations creates accountability where it has not existed before and places the burden on those who are in the best position to remedy the situation, those making hiring and promotion decisions. moreover, adding regulation would send a clear message to the public that the legal profession will no longer tolerate polices of exclusion that discriminate. finally, additional regulation might prompt states to follow and create more uniform requirements to promote diversity. however, some argue that additional regulation may be unnecessary in the legal profession.153 lawyers who engage in discriminatory conduct are already subject to disciplinary rules concerning discrimination.154 further, rules that prohibit attorney conduct prejudicial to the administration of justice already exist.155 adding another rule to address bias could be duplicative because state rules already provide a disciplinary remedy                                                                                                                           145 redfield, supra note 7, at 2. 146 am. bar ass’n leadership, supra note 15. 147 letter from marc firestone, chairman, inst. for inclusion in the legal profession & robert a. clifford, ill. state delegate, inst. for inclusion in the legal profession, to laurel g. bellows, et al. (sept. 14, 2012), available at http://www.theiilp.com/resources/documents/modelrulesofprofessionalconduct.pdf. 148 id. 149 id. 150 id. 151 letter from jack l. rives, exec. dir. & chief operating officer, am. bar ass’n, to marc firestone, chairman, inst. for inclusion in the legal profession & robert a. clifford, clifford law offices (dec. 12, 2012), available at http://www.theiilp.com/resources/documents/abaresponse2012.pdf [hereinafter aba letter]. 152 id. 153 brenda jones quick, ethical rules prohibiting discrimination by lawyers: the legal profession’s response to discrimination on the rise, 7 notre dame j.l. ethics & pub. pol’y 5, 54 (1993). 154 id. 155 id. 16 diversity in the legal profession vol. 4:1     for bias and discrimination in the practice of law in varying situations.156 indeed, nearly every state bar in the united states already includes a discrimination or bias rule in its ethics codes, except alaska, georgia, hawaii, texas, kentucky, and virginia.157 however, most of those rules only impose sanctions for discriminatory conduct in the practice of law and leave opportunities for discrimination in hiring practices and promotion decisions that may not be overtly discriminatory or subject the lawyer to other disciplinary rules. for example, florida’s rule 4-8.4(d) provides: a lawyer shall not: (d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.158 this rule only applies to conduct in connection with the practice of law. it is under-inclusive, as it does not preclude discriminatory conduct in hiring, promotion, or employment practices. although a rule was proposed to prevent discrimination in “employment, partnership, or compensation decisions,” the florida supreme court noted that its constitutional authority over florida courts and attorneys “does not extend to the employment practices of lawyers.”159 the court also noted that both federal and state laws already provide adequate protections and procedures relating to employment discrimination.160 new york adds protection for discrimination in employment practices. there, rule 8.4(g) provides: a lawyer shall not: (g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a departmental disciplinary committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. a certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding.161                                                                                                                           156 see, e.g., aba letter, supra note 151. 157 see generally alaska rules of prof’l conduct r. 8.4 (2013) (alaska’s rules of professional conduct are void of bias or discrimination prohibitions); ga. state bar governance rules part ix aspirational statement (2013) (aspirational language asking lawyers to avoid all forms of wrongful discrimination in all activities including discrimination on the basis of race, religion, sex, age, handicap, veteran status, or national origin); haw. rules of prof’l conduct r. 8.4 (2013) (hawaii’s rules are void of bias or discrimination prohibitions); tex. rules of prof’l conduct r. 8.04 (2013) (texas’s rules are void of bias or discrimination prohibitions); ky. rules of prof’l conduct r. 8.3 (2013) (kentucky’s rules are void of bias or discrimination prohibitions); va. rules of prof’l conduct r. 8.4 (2013) (virginia’s rules are void of bias or discrimination prohibitions). 158 rules regulating the fla. bar r. 4-8.4(d) (2013) (emphasis added). 159 the fla. bar re amendments to rules regulating the fla. bar, 624 so.2d 720, 722 (fla. 1993). 160 adele i. stone, professional ethics: 1993 leading cases and significant developments in florida law, 18 nova l. rev. 597, 601 (1993). 161 n.y. state rules of prof’l conduct r. 8.4(g) (2013) (emphasis added). 2013 columbia journal of race and law   17         the new york rule allows for claims to be made for discrimination in the hiring, promotion, or other conditions of employment, but only after a final judgment has been entered in a discrimination suit and all appellate remedies have been exhausted. the burden of bringing such a suit in terms of time, expense, and exposure of oneself to employer backlash presents a significant impediment to the disciplinary process and the overall goal of eliminating bias. like new york, california affords relief but only after the plaintiff receives a judgment warranting such relief. california: rule 2-400(b)(2) provides: (b) in the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in: (1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or (2) accepting or terminating representation of any client. (c) no disciplinary investigation or proceeding may be initiated by the state bar against a member under this rule unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred. upon such adjudication, the tribunal finding or verdict shall then be admissible evidence of the occurrence or non-occurrence of the alleged discrimination in any disciplinary proceeding initiated under this rule. in order for discipline to be imposed under this rule, however, the finding of unlawfulness must be upheld and final after appeal, the time for filing an appeal must have expired, or the appeal must have been dismissed. discussion to rule: in order for discriminatory conduct to be actionable under this rule, it must first be found to be unlawful by an appropriate civil administrative or judicial tribunal under applicable state or federal law. until there is a finding of civil unlawfulness, there is no basis for disciplinary action under this rule. a complaint of misconduct based on this rule may be filed with the state bar following a finding of unlawfulness in the first instance even though that finding is thereafter appealed. a disciplinary investigation or proceeding for conduct coming within this rule may be initiated and maintained, however, if such conduct warrants discipline under california business and professions code sections 6106 and 6068, the california supreme court's inherent authority to impose discipline, or other disciplinary standard.162 while the california rule has the potential to give those who report discrimination some relief, it is ineffective for the most part because an affirmative legal finding of discrimination is required before disciplinary investigations can commence. on the other hand, in minnesota, the legislature may have gone too far with its attempt to provide protections. minnesota’s rule 8.4(g) & (h) provides:                                                                                                                           162 cal. rules of prof’l conduct r. 2-400 (1994). 18 diversity in the legal profession vol. 4:1     “it is professional misconduct for a lawyer to: (g) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status in connection with a lawyer's professional activities; (h) commit a discriminatory act prohibited by federal, state, or local statute or ordinance that reflects adversely on the lawyer's fitness as a lawyer. whether a discriminatory act reflects adversely on a lawyer's fitness as a lawyer shall be determined after consideration of all the circumstances, including: (1) the seriousness of the act; (2) whether the lawyer knew that the act was prohibited by statute or ordinance; (3) whether the act was part of a pattern of prohibited conduct; and (4) whether the act was committed in connection with the lawyer's professional activities.”163 the minnesota rule may be over-inclusive. the rule prohibits harassment in connection with a lawyer’s professional activities. as one author notes, “deciding on when the personal becomes the professional will often be difficult, despite a consensus regarding the outside parameters of such misconduct.”164 minnesota’s approach may be problematic due to its breadth. there, lawyers are prohibited from engaging in bias in connection with their professional activities and may be subject to a claim of professional misconduct if they “commit a discriminatory act, prohibited by federal, state, or local statute or ordinance, that reflects adversely on the lawyer's fitness as a lawyer.”165 the approaches adopted in florida, new york, and california appear beneficial, but the burden placed on the plaintiff in those states makes it likely that the protections afforded under these provisions will prove meaningless for many individuals. this is because these states’ rules require as a prerequisite to action a favorable final judgment of discrimination against the employer. the lengthy process to obtain such a result, coupled with the fact that the plaintiff will likely lose his or her job and be largely unemployable, make it unlikely that many aggrieved parties will actually take advantage of the protections afforded. moreover, title vii claims are difficult to bring because the burden is great, thus very few people meet the requirement to file a disciplinary action with the bar association.166 despite decades of efforts to address diversification, the legal profession remains one of the least diverse professions in the united states. minorities continue to be underrepresented in law school, law firms (particularly at the higher ranks), and in leadership positions within the aba. the profession and the pathways to the profession are critically out of line with the nation’s emerging demographics.167 given these problems, and the fact that the legal profession remains a white, male dominated profession, it is time to try another approach.                                                                                                                           163 minn. rules of prof’l conduct r. 8.4(g)(h) (2005) (emphasis added). 164 edward j. cleary, accountability or overkill: disciplining private behavior, bench & b. of minn., http://www.mnbar.org/benchandbar/2001/feb01/prof-resp.htm (last updated feb. 2001). 165. ashley kissinger, civil rights and professional wrongs: a female lawyer’s dilemma, 73 tex. l. rev. 1419, 1453 (1995). 166 42 u.s.c. §§ 2000e to 2000e-17 (2006). title viii makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise, to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals [sic] race, color, religion, sex, or national origin.” 42 u.s.c. § 2000e-2(a)(1) (2006). protection against discrimination based on disability was added in 1990. see americans with disabilities act, 42 u.s.c. §§ 12101–12213 (2007). see damon ritenhouse, a primer on title vii claims: part one, 2 gpsolo ereport, no. 6, jan. 2013, http://www.americanbar.org/publications/gpsolo_ereport/2013/ january_2013/primer_title_vii_part_one.html (explaining why it is so difficult for plaintiffs to bring title vii claims). 167 redfield, supra note 7, at 7. 2013 columbia journal of race and law   19         iv. recommendations the legal profession remains the white, male dominated profession it has been for hundreds of years, but significant progress has been made over the last several decades to make the profession more inclusive. to change the complexion of the profession, it is essential to change the perceptions both of individuals in leadership roles and of those entering or training to enter the profession. to create a diverse legal profession the following actions should be taken. a. create a central diversity database the aba has acknowledged that “there is no one convenient location for finding up-to-date statistical data on the topic of diversity in the profession.”168 this is true despite the strong recognition by all pertinent stakeholders that clear access to data on diversity is a necessary prerequisite to achieving workplace diversity.169 stakeholders must have access to quantitative data to assess their progress, and that data must be tied directly to qualitative data obtained from applicants, employees and clients for it to be useful.170 lack of access to data has played a part in the inaction on diversity by many legal employers. given the changes in u.s. demographics—and the failure of the legal profession to adequately address diversity in the profession—the development of an open, centralized database on diversity is warranted for several reasons. first, creation of a national database will prove particularly valuable for minority attorneys, especially those with disabilities, and will allow employers to understand clearly what is needed to reach an acceptable level of diversity within their organization. state bar associations should require employers to report data on hiring, promotion, and retention of minorities to the centralized database. such action increases accessibility to diversity statistics. the state bar should also require each member of the bar to report qualitative data related to interviews in which they have engaged, jobs they have held, and the experiences related to those activities that have influenced their views on diversity in the profession. the reports should be anonymous to promote candor, but mandatory to assure that sufficient qualitative data is collected. the failure of the employer to report quantitative data and the failure of the employee to report qualitative data should be subject to reasonable sanctions by the bar. second, the creation of a centralized database makes logical and economic sense. such a database is logical to address the lack of diversity, because the database will provide employers with objective data that can be utilized to address diversity issues. an open access, centralized database also makes economic sense for several reasons. making the information openly accessible will create transparency concerning the ways that legal employers conduct business and the way they interact with minority candidates and employees. this in turn makes compliant employers more recognizable and more desirable to work for. further, making the data accessible allows non-legal businesses to make informed decisions when selecting a firm to represent their interests. for some, this can become an important component of their business marketing plan. today, for example, many big corporations such as wal-mart and sara lee require firms that represent them have a clear commitment to diversity including diversity at the upper levels.171 in response to this, some firms have accelerated their efforts to diversify to capture some of the business lost by those firms that fail to change.172                                                                                                                           168 aba next steps, supra note 12. 169 id. 170 id. 171 natalie white, under pressure: corporate demands for minority hiring have law firms paying attention, but will fundamental changes occur?, mass. law. wkly., nov. 21, 2005, at 23, available at http://masslawyersweekly.com/wpfiles/pdfs/ma/05/ccs_112105.pdf. 172 id. 20 diversity in the legal profession vol. 4:1     finally, making the information available has the advantage of promoting competitive altruism among firms with respect to diversity initiatives. just as new associates migrate toward those firms offering the highest compensation, firms that have a clear commitment to diversity and equality of opportunity will draw in the best minority candidates. such competition would likely create diversity among the best firms and benefit minorities. b. continuing legal education requirement: retraining the brain once licensed to practice law, lawyers may be subject to continuing education requirements. in many states, completion of continuing legal education (cle) programs is required to retain licensure. the scope and breadth of the cle requirements are state specific. of the states that require completion of cle programs, all require the programs to provide education in the areas of ethics or professional responsibility.173 however, only a few states require programs to address the elimination of bias in the legal profession, and of those, most only require a few hours. for example, minnesota requires attorneys to participate in two hours of cle programs that address the elimination of bias, which is defined to include: [a] course directly related to the practice of law that is designed to educate attorneys to identify and eliminate from the legal profession and from the practice of law, biases against persons because of race, gender, economic status, creed, color, religion, national origin, disability, age or sexual orientation.174 an evaluation of minnesota’s course revealed some interesting perspectives held by participants. some expressed resentment that the course was mandated, while others indicated that the course should be attended by all members of the legal profession.175 some believed the program provided an “eyeopening” experience that helped participants realize some of their biases, while others expressed aggravation that the program failed to provide actual solutions to address the problem.176 others felt that the program was preachy and followed a “political agenda,” and that “diversity programs stifle true debate and promote intolerance.”177 overall, the elimination of bias cles received evaluation scores not significantly more negative than the scores given by attorneys attending other types of cle programs.178 approximately half (49%) of the program attendees gave positive reviews of the program, while slightly more than a quarter (27%) gave negative reviews.179 attorneys attending the program appeared more interested in programs that address bias in the practice of law rather than bias in society at large and were more interested in the issues that the attorneys dealt with on a day-to-day basis.180 these results suggest that there is a need for cle programs on diversity in the profession and that those programs should be                                                                                                                           173 california, hawaii, west virginia, and minnesota require completion of elimination of bias cle hours. minnesota is the most stringent requiring forty-five hours every three years, with three hours ethics and two hours elimination of bias. 174. mbcle frequently asked questions, minn. bd. of continuing legal ed., http://www.mbcle.state.mn.us /mbcle/pages/faq.asp#cle (last updated mar. 15, 2013) (addressing the requirement to meet the elimination of bias cle). 175 report of the board of continuing legal education on elimination of bias cle at 4, no. c2-84-2163 (minn. july 8, 1998), available at http://www.mncourts.gov/documents/0/public/administration/administrationfiles/ continuing%20legal%20education%20adm09-8008%20(formerly%20c2-84-2163)/1998-07-01%20cle%20rpt%20 re%20elimination%20of%20bias.pdf (outlining the results of the report of the board of continuing legal education on elimination of bias). 176 id. at 4–5. 177 id. at 6. 178 id. at 8. 179 id. at 4. 180 id. at 4–6. 2013 columbia journal of race and law   21         tied more closely to the realities of legal practice. the results also demonstrate that many attorneys are willing to address diversity in the workplace once they understand the issues that create the disparity and are given tools to effectively address the problem. to increase diversity in the workplace, members of the legal profession must first understand what drives many of the issues that prevent the achievement of diversity. those in positions of power are frequently stuck in a generational chasm that makes it difficult to comprehend how societal attitudes have shifted. those individuals must confront their own ignorance and biases before they can ever effectively change how they respond. by requiring additional cle training in bias and discrimination in employment, bar associations may force lawyers to gain awareness of the multifaceted bias and inclusion issues that exist within law firms in terms of hiring, promotion, and retention practice. to be effective vehicles of change, cle courses should be developed with the goal of promoting greater understanding of how actions, policies, and procedures utilized by legal employers contribute to the lack of diversity. courses should include information relevant to gender, race, and socioeconomic status; access to justice; institutional support for prejudice and bias in the education, employment, and retention of lawyers and judges; and the responsibility lawyers have to improve the administration of justice.181 requiring cles that address bias and discrimination in the workplace is necessary to educate attorneys who may be unaware that some of the hiring, promotion, and retention decisions that are made are discriminatory in nature. the proceeds from cle programs are typically retained by the state bar. given the ongoing efforts of many state bars to help the legal profession diversify, reinvesting these proceeds into diversity promotion activities makes sense. moreover, the establishment of cle programs that address bias and discrimination in the workplace is good for business. as more and more businesses consider commitment to diversity in their decision to hire a law firm, those that engage in these activities will likely increase their chances of obtaining a client while simultaneously working to achieve social justice. c. cle-based mentoring the legal profession in the united states was founded on the principle of mentorship, but in today’s fast-paced legal environment, mentoring has taken on a limited role.182 recent calls for a return to mentoring underscore its value to the profession.183 although defined differently, mentoring can be described as a “teaching and development process that assists lawyers in becoming practitioners; instills loyalty in the firm; promotes involvement in civic and community work; and prepares junior lawyers to be future leaders in the firm.”184 successful attorneys, regardless of status, credit their success in overcoming obstacles in their career to the help of their mentors.185                                                                                                                           181 jayne reardon, building diversity and inclusion through cle and lawyer-to-lawyer mentoring, 5 diversity matters, no. 1, 8–9, (june 2011) available at http://www.isba.org/sites/default/files/sections/diversityleadership council/newsletter/diversity%20leadership%20council%20june%202011.pdf. 182. kathryn alfasi, mentoring opportunities for today’s lawyers, dc bar (aug. 2006), http://www.dcbar.org/for_ lawyers/resources/publications/washington_lawyer/august_2006/mentor.cfm. 183 id. 184 mark korf & tammy patterson, the state of mentoring in the legal profession: new tools and best practices 16 (2013), available at http://www.alanet.org/conf/2013/handouts /hr14 _the_state_of_mentoring.pdf. 185. david k. kirkpatrick, judge’s mentor: part guide, part foil, n.y. times (june 21, 2009), http://www.nytimes.com/2009/06/22/us/politics/22mentors.html?pagewanted=1&_r=4; see also richard wolf, sotomayor makes surprising revelations in book, usa today (jan.13,2013), http://www.usatoday.com/story/news /politics/2013/01 /13/sotomayor-hopes-to-extend-reach-as-role-model/1830613/. 22 diversity in the legal profession vol. 4:1     in addition to teaching substantive legal knowledge, mentors provide invaluable help to new lawyers seeking to avoid pitfalls that create problems for clients, and help them navigate the political realities of law firm practice. this, in turn, can encourage attorney retention that will ultimately strengthen the talent and knowledge base for the employer.186 given its value to the profession, mentorship, both formal and informal, should be encouraged. today, only a few state bar associations incorporate any form of lawyer-to-lawyer mentoring program into their cle requirement. in states that do include a mentoring component in their cle requirements, mentors and mentees alike can engage in valuable relationship building, outside of the work environment, while earning cle credit.187 such a program could be particularly valuable for minorities. where the mentoring program structures around activities that address diversity and inclusion, the mentee gains the added knowledge that someone above him or her in the firm, in a position of power, understands the issues he or she is facing as a minority. this understanding may prove invaluable and may be the difference in any decision made by the mentee on whether to leave or remain at the firm. because many minorities leave firms within the first five years of employment due to the stress of discrimination (less favorable assignments, no assignments, jokes, exclusion), the presence of a senior attorney in whom he or she can confide may limit his exodus.188 v. conclusion   the legal system has been used to implement some of the most significant changes in american society. yet, the profession that seeks to prevent injustice and promote equality still struggles to attain such goals within its own ranks. today, despite significant efforts by many advocacy groups, the legal profession remains one of the least diverse of any profession. to meet the challenges presented by changing u.s. demographics and business dynamics, the legal profession must change to embrace a degree of diversity that is consistent with broader changes in society. as the united states begins the shift to a majority-minority country, it is the responsibility of individuals at all levels of the legal profession to embrace a new paradigm that recognizes the value of diversity.                                                                                                                           186 reardon, supra note 181. 187 id. 188. beth hawkins, law firms struggle with recruiting and retaining minority lawyers, minnpost (dec. 2, 2011), http://www.minnpost.com/politics-policy/2011/12/law-firms-struggle-recruiting-and-retaining-minority-lawyers; debra cassens weiss, why more than 75% of minority female lawyers leave law firms within 5 years, aba journal (july 22, 2009, 8:41 am), http://www.abajournal.com/news/article/why_more_than_75_of_minority_female_lawyers _leave_law_firms_within_5_years/; reardon, supra note 181. microsoft word cjrl murphy f18.docx is it recording?—racial bias, police accountability, and the body-worn camera activation policies of the ten largest metropolitan police departments in the usa julian r. murphy0f * in recent years, there has been a growing belief that the pressing problem of racial bias in policing might be ameliorated by a technical fix—namely, police body-worn cameras. accordingly, body-worn cameras have been introduced in police departments across the country, giving rise to a variety of different internal guidelines and policies. this note surveys the body-worn camera policies of the ten largest metropolitan police departments in the united states in order to assess their relative effectiveness at combatting racial bias. particular attention is paid to “activation” requirements, which specify the sorts of events police officers are required to record on their cameras. the survey shows that, at present, many body-worn camera policies are not appropriately calibrated to successfully reduce racial bias in policing. in particular, this note suggests that many current body-worn camera policies do not adequately target two different strains of racial bias: implicit racial bias and deliberate racial profiling. this note concludes by offering a draft activation policy for potential adoption by police departments to better use body-worn cameras to reduce racially biased police practices. i. introduction ............................................................. 143 ii. existing literature on body-worn camera activation policies .................................................. 145 iii. the problem: racially biased policing................ 147 * postgraduate public interest fellow, columbia law school. thanks to mary fan, l. song richardson, and all the participants in the columbia human rights institute’s student paper symposium. special thanks to the editors of the columbia journal of race and law and to former notes editor corben green. all errors are my own. 142 columbia journal of race and law [vol. 9:1 a. deliberate racial profiling .................................... 148 b. implicit racial bias ............................................... 150 iv. a solution? body-worn cameras and three theories of change .................................................. 153 a. body-worn cameras and the deterrence theory of change ................................................................... 154 b. body-worn cameras and the accountability theory of change ............................................................... 155 1. wide acceptance of the accountability theory .............................................................. 156 c. body-worn cameras and the training theory of change ................................................................... 157 d. a prerequisite for change: footage is reviewed..... 158 v. activation policies in the ten largest metropolitan police departments ....................... 159 a. limited discretion activation policies .................. 160 b. minimal discretion activation policies ................. 162 c. a trend toward reducing police officer discretion ............................................................... 163 d. gradations of discretion ........................................ 163 vi. assessing activation policies against the stated goal of reducing racially biased policing ........ 164 a. activation requirements and deliberate racial profiling ................................................................. 165 1. the advantages of continuous recording ...... 165 2. obstacles to continuous recording ................. 168 3. recording all police-civilian interactions ...... 168 b. activation requirements and implicit racial bias ............................................................. 170 c. activation requirements and “consensual” interactions ............................................................ 173 1. racial bias in “consensual” interactions ........ 174 2. activation policies and “consensual” interactions ...................................................... 175 d. proposal for a minimal discretion activation policy .................................................... 176 vii. conclusion ................................................................ 180 viii. appendix a: stated objectives of police department body-worn camera policies ............ 183 no. 4:141] is it recording? 143 ix. appendix b: degree of discretion afforded to officers in activation policies ............................. 184 x. appendix c: activation policies requiring mandatory recording of “consensual” interactions .............................................................. 185 xi. appendix d: methodology ....................................... 186 a. choice of sample .................................................... 186 b. obtaining the policies............................................ 187 c. specific methodology: appendix a ........................ 188 d. specific methodology: appendix b ........................ 188 e. specific methodology: appendix c ........................ 189 i. introduction racial bias in policing has been at the forefront of the national public debate since at least the 2014 shooting of michael brown in ferguson and the ensuing department of justice investigation.1 the numerous subsequent incidents2 of unarmed black3 people dying at the hands of police have served, if nothing else, to keep the issue in the news.4 as the 1 see linda sheryl greene, before and after michael brown— toward an end to structural and actual violence, 49 wash. u. j.l. & pol’y 1, 3–4, 9–16 (2015) (providing an account of how michael brown’s death may be seen to fit within broader trajectories of racialized police violence). 2 see roger a. fairfax, jr., the grand jury and police violence against black men, in policing the black man: arrest, prosecution, and imprisonment 209 (angela j. davis ed., 2017) (overviewing police killings of black men that have reached the grand jury stage); see also kimberlé williams crenshaw & andrea j. ritchie, say her name: resisting police brutality against black women (2015), http://static 1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/560c068ee4b0af26f727 41df/1443628686535/aapf_smn_brief_full_singles-min.pdf [https://perma. cc/bf4c-8v69] (providing an important corrective to the male-focused public narrative around these types of events by reporting on police violence against black women). 3 i use the adjectives “black” and “african american” interchangeably for the same reason other writers in this field do, namely, because police processes do not differentiate between “types” of blackness. see, e.g., devon w. carbado, blue-on-black violence: a provisional model of some of the causes, 104 geo. l.j. 1479, 1480 n.1 (2016) (explaining the author’s semantic choices along similar lines). 4 this note focuses primarily on the problem of racial bias against black people because it is this particular form of racism that catalyzed the body-worn camera movement. this is not to ignore or diminish the effects 144 columbia journal of race and law [vol. 9:1 country looks to ways to combat this invidious problem, one “solution” has risen to particular prominence: police bodyworn cameras.5 such is the momentum behind these devices that the movement has been described as “a police body camera revolution.”6 police departments across the country have piloted and mandated body-worn cameras, giving rise to a variety of different guidelines and policies. this note surveys the body-worn camera policies of the ten largest metropolitan police departments in the united states: new york, chicago, los angeles, philadelphia, houston, washington, d.c., dallas, phoenix, baltimore, and miami-dade. whilst each department’s policy covers everything from camera cleaning and maintenance to metadata storage, this note focuses solely on “activation” requirements—that is, the policy provisions specifying events that officers are required to record on their cameras.7 though activation requirements are relatively understudied, the only study conducted to date on the scope of officer discretion in activation highlights their importance. the study found that giving officers discretion as to when to activate their cameras correlated with significantly higher incidents of officer use of force.8 it is clear, then, that activation requirements are capable of affecting police behavior. this note’s ultimate aim is to assess the relative merits of different activation policies as against one of racially-biased policing on other minority communities. on the dangers of “black male exceptionalism,” see paul butler, black male exceptionalism? the problems and potential of black male-focused interventions, 10 du bois rev. 485 (2013). 5 see howard m. wasserman, moral panics and body cameras, 92 wash. u. l. rev. 831, 832 (2015) (“[o]ne significant policy suggestion has emerged from the [ferguson] controversy: equipping police officers with body cameras.”). 6 mary d. fan, justice visualized: courts and the body camera revolution, 50 u.c. davis l. rev. 897, 901 (2017). 7 this note focuses on activation policies rather than activation functionality on body-worn cameras. when discussing activation policies, however, it is important to know that there can be a slight margin for error because some body-worn cameras have the capacity to retrieve thirty seconds of video, but not audio, from the time immediately prior to an officer commencing recording. see, e.g., operating modes, axon http://help.axon .com/hc/en-us/articles/221132167-operating-modes [https://perma.cc/wv2v-86 3n]. 8 see barak ariel et al., wearing body cameras increases assaults against officers and does not reduce police use of force: results from a global multi-site experiment, 13 eur. j. criminology 744 (2016). no. 4:141] is it recording? 145 of the primary stated goals of the body-worn camera movement: reducing racially biased policing. the discussion will proceed in five parts. part ii comprises a brief review of the existing literature on bodyworn camera activation policies. part iii describes the problem of racial bias in policing and distinguishes two different forms of racial bias—deliberate racial profiling and implicit racial bias. as this note will describe, deliberate racial profiling occurs when a police officer makes a conscious decision to treat someone less favorably because of their race, while implicit racial bias describes subconscious discriminatory behavior. part iv outlines three theories of body-worn cameras as “racial change agents”9—a deterrence theory, an accountability theory, and a training theory. in the application and analysis of the above theoretical framework, in part v, this note begins by comparing the activation policies of the ten largest metropolitan police departments.10 the comparison shows that activation requirements vary significantly between departments, with some departments requiring officers to record most policecivilian interactions and other departments affording their officers more discretion. part vi assesses the merits of the different policies when measured against the goal of reducing racially biased policing. this note argues that the most effective way to use body-worn cameras to reduce racial bias would be to mandate that the cameras be activated during all police-civilian interactions, with few exceptions. this reform proposal is reified in a draft activation policy. finally, this note proposes that any attempt at reforming body-worn camera activation policies must involve input from affected communities. ii. existing literature on body-worn camera activation policies much has been written about body-worn cameras in the short time they have been in operation, both by way of 9 this terminology comes from rashawn ray et al., can cameras stop the killings? racial differences in perceptions of the effectiveness of body-worn cameras in police encounters, 32 soc. f. 1032, 1035 (2017). 10 in addition to the discussion in part v, the results of this study are tabulated in appendixes a, b, and c. the methodology is described in appendix d. 146 columbia journal of race and law [vol. 9:1 commentary and empirical studies.11 the empirical studies to date have largely examined the effects of body-worn cameras on rates of police use of force and instances of civilian complaints.12 commentary has tended to focus on questions relating to fourth amendment compatibility,13 privacy,14 data retention,15 and public access to body-worn camera footage.16 little, however, has been written specifically on activation policies.17 if the basic hope for body-worn cameras 11 see, e.g., timothy i.c. cubitt et al., body-worn video: a systematic review of literature, 50 australian & n.z. j. criminology 379 (2017) (providing a helpful summary of the literature). 12 the major united states empirical studies to date are from rialto, mesa, phoenix, orlando, and washington, d.c. see barak ariel et al., the effect of police body-worn cameras on use of force and citizens’ complaints against the police: a randomized controlled trial, 31 j. quantitative criminology 509 (2015); justin t. ready & jacob t. n. young, the impact of on-officer video cameras on police–citizen contacts: findings from a controlled experiment in mesa, az, 11 j. experimental criminology 445 (2015); charles m. katz et al., ctr. for violence prevention & cmty. safety, evaluating the impact of officer worn body cameras in the phoenix police department (2014); wesley g. jennings et al., evaluating the impact of police officer bodyworn cameras (bwcs) on response-to-resistance and serious external complaints: evidence from the orlando police department (opd) experience utilizing a randomized controlled experiment, 43 j. crim. just. 480 (2015); david yokum et al., evaluating the effects of police body-worn cameras: a randomized controlled trial (oct. 20, 2017) (unpublished working paper), https://bwc.thelab.dc.gov/thelabdc_mpd_ bwc_working_paper_10.20.17.pdf [https://perma.cc/99n6-rxru]. 13 see, e.g., julian r. murphy, comment, chilling: the constitutional implications of body-worn cameras and facial recognition technology at public protests, 75 wash. & lee l. rev. online 1 (2018). 14 see, e.g., bryce clayton newell, collateral visibility: a sociolegal study of police body-camera adoption, privacy, and public disclosure in washington state, 92 ind. l.j. 1329 (2017). 15 see, e.g., tod newcombe, body worn camera data storage: the gorilla in the room, govtech (sept. 9, 2015), http://www.govtech.com/ dc/articles/body-worn-camera-data-storage-the-gorilla-in-the-room.html [https://perma.cc/35av-swt6]. 16 see, e.g., mary d. fan, privacy, public disclosure, police body cameras: policy splits, 68 ala. l. rev. 395 (2016). 17 for existing literature touching on body-worn camera activation policies, see the policing project, n.y. univ. sch. of law, report to the nypd summarizing public feedback on its proposed body-worn camera policy 12–15 (2017); fanny coudert et al., body-worn cameras for police accountability: opportunities and risks, 31 computer l. & security rev. 749, 758–59 (2015); lindsay miller et al., police exec. research forum, implementing a body-worn camera program: recommendations and lessons learned 12–14 (2014); wasserman, supra no. 4:141] is it recording? 147 is that, when they are recording, they will serve as an oversight mechanism to improve police behavior, then surely our first question should be: when will they be recording? indeed, only one scholar has discussed the topic in any depth. over the course of two articles in 2016 and 2017, mary fan published the results of the first thorough comparison of police body-worn camera policies in the united states.18 comparing forty-two municipal police departments, fan concluded that the policies differ widely with respect to privacy and release of footage but that there is a near consensus as to what must be recorded in the first place.19 building on fan’s research, i conducted an updated comparison of body-worn camera activation policies with particular attention to the way in which these policies might curb racially biased policing. this note thus constitutes only the second scholarly comparison of body-worn camera activation policies and the first comprehensive exploration of the potential interaction of activation policies and racial bias. before this comparison can occur, however, it is helpful to unpack exactly what “racial bias” means. iii. the problem: racially biased policing a perception of widespread racial bias in policing— particularly in practices such as stop-and-frisk programs targeting black pedestrians,20 the ferguson police department’s “predatory policing” of black residents,21 and the note 5, at 842; kelly freund, note, when cameras are rolling: privacy implications of body-mounted cameras on police, 49 colum. j.l. & soc. probs. 91, 110–12, 128–30 (2015); karson kampfe, note, police-worn body cameras: balancing privacy and accountability through state and police department action, 76 ohio st. l.j. 1153, 1175–78, 1196 (2015); and diana taylor, note, body cameras for police: when should they be turned off?, 6 l.a. pub. int. l.j. 42, 54–61 (2015). 18 fan, supra note 6; fan, supra note 16. 19 fan, supra note 6, at 902, 929–34; fan, supra note 16, at 426–30. 20 see floyd v. city of new york, 959 f. supp. 2d 540 (s.d.n.y. 2013) (finding racially discriminatory stop-and-frisk practices in new york city to be unconstitutional). 21 see civil rights div., u.s. dep’t of justice, investigation of the ferguson police department 2 (2015) (“ferguson’s police and municipal court practices both reflect and exacerbate existing racial biases, including racial stereotypes. ferguson’s own data establish clear racial disparities that adversely impact african americans. the evidence shows that discriminatory intent is part of the reason for these disparities.”); see 148 columbia journal of race and law [vol. 9:1 nationwide incidence of police shootings of unarmed black civilians22—has significantly propelled the body-worn camera movement. in response to these vastly different manifestations of racialized policing, the proposed solution has been largely the same: body-worn cameras.23 although this policy response appears to be well-intentioned, it is problematic in its failure to account for two very different causes of discriminatory police practices: deliberate racial profiling and implicit racial bias. the distinction is important because the different kinds of racial bias will not necessarily be amenable to the same reform policies—they may require separate and distinct ameliorative strategies.24 thus, in order for a bodyworn camera policy to effectively respond to racialized policing, it must address both deliberate racial profiling and implicit racial bias. to envisage how this might be possible, we must first better understand the difference between deliberate and implicit racial bias. a. deliberate racial profiling deliberate racial profiling—also known as explicit or conscious bias—is the process by which people are intentionally treated differently because of their race. in the policing context, a paradigmatic example is the practice of some united states police departments in the 1980’s and 1990’s of purposefully targeting black and latinx people for drug also devon w. carbado, from stopping black people to killing black people: the fourth amendment pathways to police violence, 105 calif. l. rev. 125, 135 (2017) (discussing the racial dimensions to “predatory policing” like that previously practiced by the ferguson police department). 22 see sources cited supra note 2. 23 see, e.g., kami chavis simmons, body-mounted police cameras: a primer on police accountability vs. privacy, 58 how. l.j. 881, 887 (2015) (“although body-mounted cameras could deter multiple types of impermissible conduct, these cameras could be extremely helpful in deterring racial profiling.”); see also coudert et al., supra note 17, at 750, 756–57 (“[i]t is hoped that [body-worn cameras] will act as deterrent against . . . discrimination by police officers . . . .”); katherine b. spencer et al., implicit bias and policing, 10 soc. & personality psychol. compass 50, 58 (2016) (“cameras also hold potential to have a deterrent effect on [racial] bias in policing.”). 24 see christine jolls & cass r. sunstein, the law of implicit bias, 94 calif. l. rev. 969, 973 (2006) (advocating for a practice “of ‘debiasing’ actors through legal strategies that are designed to counteract biases of various sorts across a variety of domains”). no. 4:141] is it recording? 149 related investigation, a practice illuminated by the mention of race in police department training materials.25 another notorious example is the new york police department (nypd) and central intelligence agency’s post-9/11 strategy of surveilling and questioning men of middle eastern appearance at a higher rate than members of other racial groups.26 today, many scholars view deliberate racial profiling as less of a concern than implicit racial bias.27 nevertheless, deliberate racial profiling remains a problem in policing and criminal justice and is of significant concern to the general public.28 25 see david a. harris, racial profiling revisited: “just common sense” in the fight against terror?, 17 crim. just. 36, 38–39 (2002) (describing the federal drug enforcement administration’s traffic stop policies and intelligence in the 1980’s which explicitly “blamed trafficking in particular drugs on identified ethnic groups”). 26 see u.n. human rights comm., concluding observations on the fourth report of the united states of america, ¶ 7, u.n. doc. ccpr/c/usa/co/4 (apr. 23, 2014) (“[t]he committee remains concerned about the practice of racial profiling and surveillance by law enforcement officials targeting certain ethnic minorities and the surveillance of muslims, undertaken by the federal bureau of investigation (fbi) and the new york police department (nypd), in the absence of any suspicion of wrongdoing.”); see also jack glaser, suspect race: causes and consequences of racial profiling 127–60 (2014) (describing racial profiling of middle eastern men in post-9/11 counterterrorism policies). 27 see, e.g., devon w. carbado & patrick rock, what exposes african americans to police violence?, 51 harv. c.r.-c.l. l. rev. 159, 162 (2016) (“[c]onscious racial animosity likely only accounts for a small percentage of racially-motivated conduct.”); jerry kang et al., implicit bias in the courtroom, 59 ucla l. rev. 1124, 1126 (2012) (“the problems of overt discrimination have received enormous attention from lawyers, judges, academics, and policymakers. while explicit sexism, racism, and other forms of bias persist, they have become less prominent and public over the past century. . . . [l]ikely more pervasive, are questions surrounding implicit bias . . . .”); brian a. nosek et al., pervasiveness and correlates of implicit attitudes and stereotypes, 18 eur. rev. soc. psychol. 36, 58–60 (2007) (analyzing the results of over 2.5 million online implicit bias tests and showing that implicit bias is more prevalent than explicit bias, at least when the latter is measured on a self-reporting basis). 28 see, e.g., floyd v. city of new york, 959 f. supp. 2d 540, 561 (2013) (“[t]he nypd has an unwritten policy of targeting ‘the right people’ for stops. in practice, the policy encourages the targeting of young [b]lack and hispanic men . . . . this is a form of racial profiling.” (footnote omitted)). 150 columbia journal of race and law [vol. 9:1 b. implicit racial bias implicit racial bias is an umbrella term attaching to a number of unconscious attitudes, stereotypes, and prejudices about people of different races.29 our understanding of implicit racial bias is based on the “science of implicit cognition [that] suggests that actors do not always have conscious, intentional control over the processes of social perception, impression formation, and judgment that motivate their actions.”30 in the policing context, implicit racial bias most commonly describes the process by which police officers unconsciously associate black civilians with criminality or dangerousness.31 implicit racial bias operates subconsciously despite a police officer’s best intentions. as l. song richardson has explained, “implicit stereotypes can cause an officer who harbors no conscious racial animosity and who rejects using race as a proxy for criminality to unintentionally treat individuals differently based solely upon their physical appearance.”32 implicit racial bias can infect police interactions with black civilians in deeply troubling ways. two such potential manifestations discussed here have been chosen for their relevance to the genesis of the body-worn camera movement: the increased scrutiny of black people in daily life and the increased use of force against black civilians. first, implicit racial bias can contribute to increased police scrutiny of black civilians—for example, by policeinitiated questioning of black people on the street or by the more invasive practice of terry stops.33 it is well established 29 anthony g. greenwald & linda hamilton krieger, implicit bias: scientific foundations, 94 calif. l. rev. 945, 951 (2006). 30 id. at 946. 31 see carbado & rock, supra note 27, at 167–73 (“[in the policing context,] african-american men are associated not only with criminality but also with violence and dangerousness.”); jennifer l. eberhardt et al., seeing black: race, crime, and visual processing, 87 j. personality & soc. psychol. 876, 876 (2004) (“the stereotype of black americans as violent and criminal has been documented by social psychologists for almost 60 years.”). 32 l. song richardson, arrest efficiency and the fourth amendment, 95 minn. l. rev. 2035, 2039 (2011). 33 “terry stops” describe the police practice of stopping civilians for questioning and/or frisking, despite the absence of probable cause. the practice is named after the supreme court case in which it was deemed constitutional: terry v. ohio, 392 u.s. 1 (1968). no. 4:141] is it recording? 151 that police subject black people to these practices at a higher rate than other civilians.34 this racial disproportionality can plausibly be attributed, at least in part, to police officers’ implicit racial biases, whereby officers are more likely to pay attention to, and thus approach, a black civilian than a white civilian.35 this vein of implicit bias has been called “attentional bias”36 and is borne out in studies showing that black individuals both attract attention more often37 and retain attention for longer38 than white individuals. as richardson has written: implicit biases affect whether behavior catches attention in the first place and whether the observer will interpret that behavior as suffi 34 see, e.g., floyd v. city of new york, 959 f. supp. 2d 540, 560 (2013) (“blacks and hispanics are more likely than whites to be stopped [by the nypd] within precincts and census tracts, even after controlling for other relevant variables. . . . together, these results show that [b]lacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than [w]hites.”); jeffrey fagan & amanda geller, following the script: narratives of suspicion in terry stops in street policing, 82 u. chi. l. rev. 51, 55 (2015) (observing race-based suspicion leading to stops and searches of black and latinx people in new york); david a. harris, factors for reasonable suspicion: when black and poor means stopped and frisked, 69 ind. l.j. 659, 679–80 (1994) (“police are much more likely to stop african-american men than [w]hite men.”); anthony c. thompson, stopping the usual suspects: race and the fourth amendment, 74 n.y.u. l. rev. 956, 983–90 (1999) (reviewing scientific literature on stereotyping and analyzing how racial stereotypes likely played a role in the stop under review in terry v. ohio, 392 u.s. 1 (1968)). 35 see jeffrey fagan & garth davies, street stops and broken windows: terry, race, and disorder in new york city, 28 fordham urb. l.j. 457, 481 (2000) (“the prominence of race in the decision to stop citizens may not rise to the threshold of racial profiling, but it does seem to create a racial classification of ‘suspicion.’”); richardson, supra note 32, at 2052 (“based on the science, it is reasonable to conclude that the police target, stop, and search [b]lacks more often than [w]hites based on the operation of implicit biases.”). 36 eberhardt et al., supra note 31, at 881. 37 see sophie trawalter et al., attending to threat: race-based patterns of selective attention, 44 j. experimental soc. psychol. 1322, 1322 (2008) (“[t]he stereotype that young black men are threatening and dangerous has become so robust and ingrained in the collective american unconscious that black men now capture attention . . . .”). 38 see eberhardt et al., supra note 31, at 887 (describing a study which bore out the researchers’ hypothesis that racial biases led participants to look at black faces quicker than white faces and to look at black faces for longer than white faces). 152 columbia journal of race and law [vol. 9:1 ciently suspicious to warrant further investigation. . . . hence, police attention may be drawn to [b]lack individuals . . . regardless of whether these individuals are engaged in suspicious behavior.39 secondly, implicit racial bias can result in higher rates of police use of force against black civilians. studies explain this manifestation of implicit racial bias by demonstrating that people, including police officers, are more likely to view a black person’s behavior as threatening.40 one such study suggests that, as a result of social learning, people are more likely to respond fearfully to black than to white individuals.41 another study suggests that people will more readily detect hostility in black faces than in white faces with identical expressions.42 a slew of “shooter bias” simulation studies have shown that people are generally quicker to shoot armed and unarmed black people than they are to shoot similarly situated white people.43 this review of 39 richardson, supra note 32, at 2052–53 (footnote omitted). 40 see nosek et al., supra note 27, at 56 (“[m]ost participants [of over 2.5 million online implicit bias tests] showed stronger associations of blacks with weapons and whites with harmless objects compared to the reverse pairing . . . .”). 41 see matthew d. lieberman et al., an fmri investigation of race-related amygdala activity in african-american and caucasianamerican individuals, 8 nature neuroscience 720 (2005) (reporting results of a study using functional magnetic resonance imaging to show that both black and white participants recorded higher levels of amygdala activity in response to black targets than to white targets; the amygdala is, broadly speaking, the section of the brain associated with fear and survival instincts). 42 kurt hugenberg & galen v. bodenhausen, facing prejudice: implicit prejudice and the perception of facial threat, 14 psychol. sci. 640, 643 (2003). 43 see, e.g., joshua correll et al., the police officer’s dilemma: using ethnicity to disambiguate potentially threatening individuals, 83 j. personality & soc. psychol. 1314, 1327 (2002) (“in four studies, participants showed a bias to shoot african american targets more rapidly and/or more frequently than white targets.”); anthony g. greenwald et al., targets of discrimination: effects of race on responses to weapons holders, 39 j. experimental soc. psychol. 399, 405 (2003) (“race of target can affect both (a) perceptual ability to discriminate a weapon from a harmless object and (b) bias to respond as if a weapon is present.”); melody s. sadler et al., the world is not black and white: racial bias in the decision to shoot in a multiethnic context, 68 j. soc. issues 286, 297– 98 (2012) (replicating early “shooter bias” results in samples of police no. 4:141] is it recording? 153 the psychological literature reveals that implicit racial bias operates in a very different way than deliberate racial profiling. whereas deliberate racial profiling involves conscious decisions and behaviors intended to negatively discriminate against black people, implicit racial biases are instinctive attitudes and responses operating at a subconscious level. to address the root causes of racialized policing, we must adopt a multifaceted understanding of racial bias that integrates both subconscious and conscious discrimination against black civilians. we may not always know whether a racially skewed policing phenomenon—such as stop-andfrisk—is the product of deliberate or implicit racial bias; so, we need to be prepared to respond to both possibilities. thus, any body-worn camera policy that hopes to reduce the incidence of racially motivated policing must be calibrated to change both deliberate and implicit racial bias. proponents of body-worn cameras generally advance three theories as to how this change might be achieved: a deterrence theory, an accountability theory, and a training theory. iv. a solution? body-worn cameras and three theories of change claims that body-worn cameras can mitigate “the implicit and explicit bias against people of color and particularly african american youth”44 are usually made by reference to three theories of change. this note refers to these as the deterrence theory, the accountability theory, and the training theory. officers). but see lois james et al., racial and ethnic bias in decisions to shoot seen through a stronger lens: experimental results from highfidelity laboratory simulations, 10 j. experimental criminology 323, 336 (2014) (finding that, although subjects held subconscious racial biases associating black people with threat, these biases did not express themselves in decisions to shoot.). 44 press release, lawyers’ comm. for civil rights under law et al., a unified statement of action to promote reform and stop police abuse (aug. 18, 2014), https://www.aclu.org/sites/default/files/assets/black_leaders_joint _statement_-_final_-_8-18.pdf [https://perma.cc/w78j-jjlx]. 154 columbia journal of race and law [vol. 9:1 a. body-worn cameras and the deterrence theory of change the deterrence theory postulates that when police officers understand their actions to be reviewable, they are deterred from violating commonly held norms of conduct.45 the first randomized controlled trial of body-worn cameras appears to have borne out this hypothesis. in that trial, researchers found that officers wearing cameras were involved in fewer use-of-force incidents than an analogous control group without cameras.46 the researchers concluded plausibly that the officers wearing cameras behaved better, and resorted to force less often, because of their awareness that they were being “watched.”47 there is survey evidence to suggest that the public strongly believes that body-worn cameras are capable of having this effect.48 though it remains true that not everyone accepts the plausibility of the 45 see, e.g., the constitution project, guidelines for the use of body-worn cameras by law enforcement: a guide to protecting communities and preserving civil liberties 12 (2016) (“with respect to officer behavior, body cameras may deter officer misconduct, including improper use of force, unjustified stops or arrests, and other violations of the law or department policy.”); barak ariel et al., report: increases in police use of force in the presence of body-worn cameras are driven by officer discretion: a protocol-based subgroup analysis of ten randomized experiments, 12 j. experimental criminology 453, 455 (2016) (“the theoretical basis for the use of cameras—that being monitored changes behavior—is deterrence theory. . . . bwcs increase the perceived certainty of apprehension for rule violations. . . . when bwcs are actually turned on and appropriately activated, they can efficiently detect rule violations and law breaking by officers . . . and this process can send a credible deterrence threat.” (citations omitted)); ariel et al., supra note 8, at 747–50 (reviewing literature on deterrence theory and applying it to the use of body-worn cameras); coudert et al., supra note 17, at 750, 756–57 (“[b]y exposing bad . . . behaviour, it is hoped that [body-worn cameras] will act as deterrent against the [mis]use of force and discrimination by police officers . . . because of this deterrent effect, body-worn cameras are expected to improve policing . . . .”). 46 ariel et al., supra note 12, at 523. 47 id. at 526 (“we interpret this to reflect a fundamental tendency of humans to exhibit more desirable behaviors when they know they are under surveillance . . . .”). 48 the policing project, supra note 17, at 10 (reporting that eightynine percent of respondents to a survey of 2500 people believed that bodyworn cameras would improve the conduct of police officers interacting with members of the public). no. 4:141] is it recording? 155 deterrence function of body-worn cameras,49 there is such broad support for the theory among the public, policymakers, and scholars that it is likely to inform any public discussion about body-worn camera policies. b. body-worn cameras and the accountability theory of change meanwhile, the accountability theory is based on the simple idea that when a person is held accountable for unsatisfactory behavior, they are more likely to refrain from that behavior in the future. body-worn cameras increase the likelihood that an officer acting on racial biases will be discovered, investigated, and disciplined.50 importantly, under the accountability theory, body-worn cameras not only improve the behavior of the individual officer disciplined, but also improve that of other officers who, having seen the disciplinary consequence, will modify their behavior to avoid disciplinary action. 49 see, e.g., ben bradford & jonathan jackson, enabling and constraining police power: on the moral regulation of policing, in routledge handbook of criminal justice ethics 219, 226 (jonathan jacobs & jonathan jackson eds., 2017) (“almost all discussion of the influence of bwv and other recording technology on police officers has revolved around rational choice and deterrence theory—the presence of cameras deters them from behaviours they might otherwise have engaged in simply because the cameras increase the risk of censure and sanction. the emphasis is, then, on extrinsic motivations for behaviour that, we argue below, are not necessarily particularly strong or efficacious. on this basis alone increased surveillance of police is unlikely to solve on its own the problems thrown up by stop and search (and many other practices besides).”). 50 the constitution project, supra note 45, at 13 (“[video evidence] allows departments to more rapidly take appropriate disciplinary action in response to misconduct.”); coudert et al., supra note 17, at 755 (“as accountability mechanism, [body-worn cameras] could act in two ways: to apportion responsibility and to encourage learning.”); see also david a. harris, picture this: body-worn video devices (“head cams”) as tools for ensuring fourth amendment compliance by police, 43 tex. tech l. rev. 357, 363–64 (2010) (discussing the use of body-worn cameras to substantiate civilian complaints against police officers). 156 columbia journal of race and law [vol. 9:1 1. wide acceptance of the accountability theory police departments, the public, and the judiciary all appear to subscribe to the accountability theory. as shown in appendix a, eight of the ten police departments included in the comparative analysis included “accountability” or “transparency” as an objective of their body-worn camera policies. furthermore, the police executive research forum (perf) interviewed forty police executives whose departments had implemented, or considered implementing, bodyworn cameras. perf registered a widespread belief among the executives that body-worn cameras could enhance accountability and transparency.51 public support for the accountability theory is evident in two separate studies. one survey of public responses to a draft nypd policy recorded respondents’ hopes that body-worn cameras would enable the department to better identify police officer misconduct.52 another survey, this time of maryland community members, recorded similar sentiments that body-worn cameras would improve police accountability.53 finally, at least some members of the judiciary believe in the accountability theory, as indicated by the inclusion of body-worn cameras in judicial orders following complaints of racially biased policing in ferguson, baltimore, newark, and new york.54 in the litigation surrounding the nypd’s racialized stop-and-frisk policy, the trial court justified its inclusion of body-worn cameras in the final order by reasoning: [body-worn cameras] will provide a contemporaneous, objective record of stops and frisks, allowing for the review of officer conduct . . . . 51 see miller et al., supra note 17, at 5 (“the police executives whom perf consulted cited many ways in which body-worn cameras have helped their agencies strengthen accountability and transparency.”). 52 the policing project, supra note 17, at 10. 53 see ray et al., supra note 9, at 10–11 (quoting respondents to a survey about body-worn cameras who believe that they will improve police accountability). 54 consent decree at 52–57, united states v. city of ferguson, no. 4:16-cv-00180-cdp (e.d. mo. apr. 19, 2016), ecf no. 41; consent decree at 95–96, united states v. police dep’t of balt., no. 1:17-cv-00099-jkb (d. md. jan. 12, 2017), ecf no. 2-2; consent decree at 38–39, united states v. city of newark, no. 2:16-cv-01731-mca-mah (d.n.j. 2016), ecf no. 4-1. no. 4:141] is it recording? 157 [that] may either confirm or refute the belief of some minorities that they have been stopped simply as a result of their race . . . .55 c. body-worn cameras and the training theory of change some proponents of body-worn cameras also advance a final theory of change, the training theory. the training theory is rooted in a belief that body-worn cameras allow police to develop training programs specifically targeted at particular practices of racially biased policing. at the level of an individual officer, body-worn camera footage may allow a supervisor to identify racially biased behavior—such as stopping black civilians more regularly than white civilians— and require that officer to engage in training designed to change this behavior. at a department-wide level, aggregate data derived from body-worn camera footage may reveal that there is a widespread or systemic problem of racial bias that would require the entire force to engage in remedial training.56 there is evidence that police believe in the training theory of change: appendix a shows that nine of the ten police departments in my comparative analysis included “training” as an objective of their body-worn camera policies. the theory appears to have the support not just of the policy drafters, but also of frontline police officers. one survey conducted after a body-worn camera study recorded that almost eighty percent of police officers agreed that reviewing their own conduct on body-worn camera footage would help them improve their behavior.57 55 floyd v. city of new york, 959 f. supp. 2d 668, 685 (s.d.n.y. 2013). 56 see miller et al., supra note 17, at 8–9 (describing body-worn cameras as a useful tool to train individual officers and “to address widereaching structural problems within the department”); harris, supra note 50, at 364–65 (“[s]upervisors could use the recordings for more general (i.e., not complaint responsive) assessment, training, and disciplinary decisions.”). 57 jennings et al., supra note 12, at 484 (recording that 79.5% of officers involved in a body-worn camera study agreed, in a post-study survey, that “reviewing bwc video after an incident would help them . . . identify issues that they may need improvement on”). 158 columbia journal of race and law [vol. 9:1 d. a prerequisite for change: footage is reviewed before departing the topic of theories of change, some concluding comments are in order. each of the above theories of change can only operate effectively if internal supervisors or external auditors not only record, but actually review body-worn camera footage.58 if someone is not reviewing the footage, then police officers will not be deterred or disciplined, and they will not receive targeted training. though some critics have doubted that police departments have the funds and resources to regularly review countless hours of body-worn camera footage,59 there is reason to believe that police departments are systematically reviewing such footage. a nationwide survey of 254 police departments found that ninety-four percent used body-worn camera footage to train officers and assist in administrative reviews.60 this suggests that there are already procedures in place laying a foundation for each of the three theories of change just postulated. however, before further examining how these theories of change might inform the ideal body-worn camera activation policy, it is helpful to survey the policies that are currently in place. 58 see coudert et al., supra note 17, at 757 (“[the deployment of body-worn cameras] should be accompanied by organizational [sic] measures ensuring that police officers receive sufficient and meaningful feedback from their supervisors after incidents . . . . in that sense, body-worn cameras can also act as [a] forward-looking mechanism, to encourage learning.”); developments in the law—policing, 128 harv. l. rev. 1706, 1802, 1802 n.55 (2015) (“but this benefit is contingent on departmental review policies, as some police departments only allow supervisors to access footage if a civilian complaint has been made—prohibiting random screenings of officer conduct in the field.”). 59 see spencer et al., supra note 23, at 58 (“[a]nalyzing thousands of hours of audio and video recordings can be logistically complicated and prohibitively costly.”). 60 miller et al., supra note 17, at 7 (“many police agencies are discovering that body-worn cameras can serve as a useful training tool to help improve officer performance. for example, agencies are using footage from body-worn cameras to provide scenario-based training, to evaluate the performance of new officers in the field, and to identify new areas in which training is needed.”). no. 4:141] is it recording? 159 v. activation policies in the ten largest metropolitan police departments body-worn cameras do not have a long history in the united states. first trialed in continental europe and the united kingdom,61 body-worn cameras began to enter united states police departments in the late 2000’s.62 the pilot programs and initial trials of these devices proceeded on a city-by-city basis rather than as a uniform national rollout. the result has been a lack of uniformity in policies and procedures.63 indeed, some departments appear to lack any policies at all.64 perhaps because of the piecemeal and localized nature of police body-worn camera programs, there has been little scholarly effort directed at comparing and critiquing the policies governing the use of these devices. mary fan’s pioneering work has gone some way toward improving this area of academic study. fan looked at the municipal police departments serving the largest 100 cities in the united states, of which eighty-eight had used or planned to use body-worn cameras.65 as of december 2015, the date of fan’s study, only thirty-nine departments had publicly available guidelines.66 three other police departments were located in states that had legislative guidelines regarding body-worn cameras.67 accordingly, fan coded and compared the guidelines for a total of forty-two police departments. my december 2017 survey of the body-worn camera policies of the ten largest 61 see coudert et al., supra note 17, at 751–53 (describing use of body-worn cameras by police departments in the united kingdom); kampfe, supra note 17, at 1156–57 (describing the history of body-worn cameras in denmark and the united kingdom). 62 harris, supra note 50, at 361–62 (summarizing the emergence of body-worn cameras in the united states). 63 see kampfe, supra note 17, at 1155 (tracking the rapid implementation of body-worn cameras and suggesting that there is little, if any, policy uniformity). 64 see miller et al., supra note 17, at 2 (“perf received responses from 254 departments . . . of the 63 agencies that reported using body-worn cameras, nearly one-third did not have a written policy governing body-worn camera usage. many police executives reported that their hesitance to implement a written policy was due to a lack of guidance on what the policies should include . . . .”). 65 fan, supra note 16, at 426; fan, supra note 6, at 931. 66 fan, supra note 16, at 426; fan, supra note 6, at 931. 67 fan, supra note 16, at 426; fan, supra note 6, at 931. 160 columbia journal of race and law [vol. 9:1 metropolitan police departments in the united states builds on fan’s research. my findings, which are discussed further below, align with fan’s insofar as they identify two primary models for body-worn camera activation policies: “limited discretion” policies and “minimal discretion” policies. as the labeling suggests, the point of differentiation between these two models is the degree of discretion they afford police officers. limited discretion policies allow officers more autonomy as to what they need to record on their cameras; minimal discretion policies allow officers less autonomy. the fact that discretion is the point of difference between the two models should not be surprising. discretion has long been a significant topic of debate in modern theories of policing. on the one hand, it is argued that individual police officer discretion should be reduced in order to ensure that the law is applied equally to everyone rather than applied variably according to the whim of a particular officer.68 on the other hand, advocates of discretion suggest that it is necessary to ensure that police officers are able to respond flexibly to different circumstances and thus to avoid the harshness of blindly applied universal rules.69 as this note will discuss, these competing views of discretion underlie the two common models of bodyworn camera activation policies. a. limited discretion activation policies limited discretion activation policies operate by presumptively providing police officers discretion as to whether or not to record their activities while on duty.70 this presumption of officer discretion is only displaced in specific circumstances (in which recording is mandatory). an illustrative limited discretion policy is that of the nypd, which states: 68 k. c. davis, police discretion 145 (1975). 69 wayne r. la fave, the need for discretion, in law and the lawless: a reader in criminology 299 (1969). 70 cf. fan, supra note 16, at 427 (“a limited-discretion model curtails officer discretion by requiring recording of several specified law enforcement activities, while leaving some situations up to officer discretion.”); fan, supra note 6, at 931 (“under a limited discretion model, police are directed to record specified enforcement activities and given discretion over whether to record at other times.”). no. 4:141] is it recording? 161 activate bwc prior to engaging in, or assisting another uniformed member of the service with, the following police actions: a. arrests b. summonses . . . c. vehicle stops d. interactions with persons suspected of criminal activity e. a search of an individual and/or his/her belongings . . . f. interactions with an emotionally disturbed person g. use of force . . . h. public interactions that escalate and become adversarial . . . . uniformed members of the service may record other official activities when, in the uniformed member’s judgment, it would be beneficial to record . . . .71 this nypd policy is characteristic of the limited discretion model because there is no generalized prescription requiring mandatory recording as there is, for instance, in the chicago police department (“the chicago pd”) policy reproduced below.72 instead, the nypd policy grants a general discretion to officers as to whether to record their activities and only displaces this discretion in the specific circumstances listed in subsections a through h. the limited discretion model places significant trust in the individual police officer to make the right “judgment” about whether it is “beneficial” to record. in this sense, the nypd policy can be understood to come down on the pro-discretion side of the long-raging debate about the desirability of discretion in modern policing. as the following section shows, the chicago pd can be seen to fall into the opposing anti-discretion camp. 71 nypd, draft 16, pilot program—use of body-worn cameras, §§ 5, 8 (2017) (emphasis added). 72 chi. police dep’t, special order s03-14, body worn cameras (2018). the chicago policy states: “the decision to electronically record a law-enforcement-related encounter is mandatory, not discretionary, except where specifically indicated.” id. § iii(a)(1) (emphasis added). 162 columbia journal of race and law [vol. 9:1 b. minimal discretion activation policies the other dominant type of body-worn camera activation policy among united states police departments is a minimal discretion policy.73 such policies start from a presumption that all enforcement activities will be recorded, subject only to narrow exceptions.74 an example of a minimal discretion model can be seen in the chicago pd policy, which states: 1. the decision to electronically record a lawenforcement-related encounter is mandatory, not discretionary, except where specifically indicated. 2. the department member will activate the system . . . at the beginning of an incident and will record the entire incident for all law-enforcement-related activities. . . . . 3. a department member may utilize discretion to activate the bwc for non-lawenforcement-related activities [including] . . . community caretaking functions . . . .75 the difference between the limited and minimal discretion policies is illustrated by the fundamentally different starting point of the chicago pd policy as compared to the earlierquoted nypd policy. in a limited discretion model like the nypd’s, the default position is voluntary recording; whereas in a minimal discretion model like the chicago pd’s, the default position is mandatory recording. thus, in the terms of the discretion debate adverted to above, the chicago pd’s 73 fan prefers to label this sort of policy as a “highly-limiteddiscretion model.” see fan, supra note 16, at 427; fan, supra note 6, at 932. allyson roy prefers the language of “a strict-control policy.” see allyson roy, on-officer video cameras: examining the effects of police department policy and assignment on camera use and activation 12 (may 2014) (unpublished m.s. thesis, arizona state university), https://repository.asu.edu/attachments/ 134979/content/roy_asu_0010n_13803.pdf [https://perma.cc/bea5-qfng]. 74 cf. fan, supra note 16, at 427 (“this highly-limited-discretion approach requires that body cameras record during all enforcement encounters with the public, with only limited exceptions.”); fan, supra note 6, at 932. 75 chi. police dep’t, special order s03-14, body worn cameras § iii(a)(1)–(3) (2018) (emphasis added). no. 4:141] is it recording? 163 minimal discretion policy can be seen to be more concerned with reducing police officer discretion and ensuring uniform policy application than with allowing officer flexibility in responding to different situations. having described the two common models of body-worn camera activation policy, it is now possible to assess their relative popularity. c. a trend toward reducing police officer discretion in fan’s 2015 study, the vast majority (eighty percent) of police departments opted for the policy that afforded officers more discretion about what to record on their cameras—the limited discretion policy.76 these results are at odds with the results of my smaller, more recent study in which only twenty percent of departments afforded their officers such discretion, as shown in appendix b. this significant difference suggests that, since 2015, large metropolitan police departments have been moving increasingly to reduce police officer discretion as to what must be recorded on their body-worn cameras. the implications of this development for racial bias are discussed in part vi, where this note argues that reducing police officer discretion even further will result in activation policies best suited to combating racially biased policing. before commencing that discussion, however, it is necessary to qualify the endorsement of the limited/minimal discretion binary. d. gradations of discretion the apparent binary between limited and minimal discretion policies outlined above, and in fan’s work, is somewhat reductive. a closer analysis of the specific phraseology of the policies reveals significant gradations of recording requirements, even within policies on the same side of the limited/minimal equation. for example, compare the above-quoted chicago pd policy, which requires mandatory recording of all enforcement activities, with the minimal discretion policy of the baltimore police department (“the baltimore pd”), which requires mandatory recording of all 76 fan, supra note 6, at 932. 164 columbia journal of race and law [vol. 9:1 investigative and enforcement activities.77 on its face, the baltimore pd’s inclusion of “investigative activities” significantly extends its mandatory recording requirements beyond those of the chicago pd. the baltimore pd policy would appear to require recording of, for example, all preliminary civilian inquiries, door knocks, witness interviews, crimescene investigations, and evidence collection activities (unless covered by an enumerated exclusion). the purpose of adverting to the shades of discretion even within the same policy model is to emphasize that the optimal body-worn camera policy will be drafted with attention to whether each word, clause, and concept enlarges or reduces police officer discretion. it is not enough to simply endorse one model or the other in the abstract. with this in mind, the next section turns to consider how activation policies might best be drafted to address deliberate and implicit racial bias. vi. assessing activation policies against the stated goal of reducing racially biased policing the preceding discussion introduced the dual problem of deliberate racial profiling and implicit racial bias; explained the potential solution of body-worn cameras by reference to three theories of change; and surveyed the current array of body-worn camera activation policies. in sections vi.a and vi.b, this part will now analyze the most effective way in which a policy might leverage the theories of change to reduce deliberate and implicit racial bias. section vi.c will give special consideration to activation requirements for “consensual”78 interactions between police and civilians because of the heightened risk of racial bias manifesting in 77 compare chi. police dep’t, supra note 75, with balt. police dep’t, policy 824, body worn cameras pilot program 2 (2015). 78 this note considers “consent” in the stop-and-search context to be a legal fiction with little connection to everyday understandings of consent. accordingly, this note uses quotation marks around the word “consent” and its derivatives when the legal concept is being described. cf. oren bar-gill & barry friedman, taking warrants seriously, 106 nw. u. l. rev. 1609, 1662 (2012) (noting the authors’ deliberate use of quotation marks around the word “consent” in their article); alafair s. burke, consent searches and fourth amendment reasonableness, 67 fla. l. rev. 509, 513 n.12 (2015) (collecting some of the scholarly literature that insists on quotation marks around the word “consent” in the policing context). no. 4:141] is it recording? 165 these interactions. finally, section vi.d introduces a draft activation policy for consideration by interested police departments, policymakers, and affected communities. a. activation requirements and deliberate racial profiling each of the three theories of change—deterrence, accountability, and training—relies for its effectiveness on police officers activating their body-worn cameras. if a camera is not activated during an act of deliberate racial profiling, then the camera is serving little deterrence function; it is not going to catalyze a disciplinary response and it will not result in any responsive training.79 the necessary implication of this observation is that the more often cameras are recording, the more effective they will be in reducing deliberate racial profiling. taken to its fullest extent, this logic suggests that the activation policy that would most likely reduce deliberate racial profiling would be one that requires police officers to activate their cameras for the entirety of their shift.80 this can be labeled a “continuous recording” policy. 1. the advantages of continuous recording barak ariel, the leading empirical researcher in the field, and his coauthors have advocated for exactly this approach, arguing that “cameras should remain on throughout 79 but see barak ariel et al., “contagious accountability”: a global multisite randomized controlled trial on the effect of police body-worn cameras on citizens’ complaints against the police, 44 crim. just. & behav. 293 (2017) (hypothesizing that body-worn cameras may in fact influence officer behavior even when they are not recording, because officers will become so accustomed to the oversight of body-worn cameras that they will assume constant surveillance, either from their own device or from that of another officer; this possibility does not undermine my focus on activation policies—if we want to increase “contagious accountability,” then we need expansive activation policies that encourage officers to assume that there will always be a camera recording). 80 cf. bryce clayton newell, crossing lenses: policing’s new visibility and the role of “smartphone journalism” as a form of freedompreserving reciprocal surveillance, 2014 j.l. tech. & pol’y 59, 85 (2014) (suggesting that if body-worn cameras are “always on” they will better “serve to support citizen oversight and law enforcement accountability”). 166 columbia journal of race and law [vol. 9:1 the entire shift—that is, during each and every interaction with citizens.”81 the american civil liberties union (aclu) has also recognized that, “from an accountability perspective, the ideal policy for body-worn cameras would be for continuous recording throughout a police officer’s shift.”82 to require anything other than continuous recording reduces the capacity of cameras to protect against deliberate racial profiling, because an officer can avoid detection by simply not activating their camera. a number of scholars and civil rights organizations have expressed concern about this possibility.83 the aclu has noted: [p]olicies and technology must be designed to ensure that police cannot ‘edit on the fly’—i.e., choose which encounters to record with limitless discretion. if police are free to turn the cameras on and off as they please, the cameras’ role in providing a check and balance against police power will shrink and they will no longer become a net benefit.84 the public shares this concern. in the policing project’s survey of more than 25,000 people in new york city, “a 81 ariel et al., supra note 45, at 461. 82 jay stanley, aclu, police body-mounted cameras: with right policies in place, a win for all 3 (2015), https://www.aclu.org/ sites/default/files/assets/police_body-mounted_cameras-v2.pdf [https://perma .cc/ml4f-rxrb]. 83 see, e.g., emmeline taylor, lights, camera, redaction . . . police body-worn cameras: autonomy, discretion and accountability, 14 surveillance & soc’y 128, 129 (2016) (“the ability of officers to ‘edit on the fly’ fundamentally undermines any potential benefits the cameras introduce.”); jay stanley, police body cameras: the lessons of albuquerque, aclu: free future (mar. 24, 2015, 11:30 am), https://www.aclu.org/blog/ police-body-cameras-lessons-albuquerque [https://perma.cc/3cqq-424y] (“in albuquerque the police have body worn cameras . . . . but they’ve been used sporadically—police use cameras when it suits them, and they don’t when it doesn’t. the selective recording that goes on in these police misconduct cases has been a real problem for us. there have been police shootings where the cameras simply weren’t turned on.” (quoting alexandra smith, legal director of the aclu of new mexico)). 84 stanley, supra note 82, at 2–3; see also coudert et al., supra note 17, at 756 (“body-worn cameras have the potential to act as [a] powerful deterrent mechanism by exposing behaviour that was previously not scrutinised. still, the latitude let to police officers to turn the camera on and off will be a decisive factor in that regard.”). no. 4:141] is it recording? 167 substantial number of [survey respondents] . . . expressed concern that officers would fail to record contentious encounters.”85 the worry that contentious encounters will not be recorded unless the cameras are continuously recording is supported by empirical evidence. one study of a body-worn camera program in phoenix required officers to activate their cameras in all enforcement encounters. in reality, however, they recorded “only 13.2 to 42.2 percent of incidents.”86 the results were almost identical in a denver pilot project. in that study, the policy required officers to record all uses of force but, in fact, less than half of the uses of force were caught on camera.87 in a british study where the body-worn camera policy required recording of all police attendances for domestic violence, only one in six officers recorded every incident.88 finally, in new orleans, a court-appointed monitor reported that only about one third of uses of force were recorded, despite a consent decree requiring the recording of all uses of force.89 of course, not all failures to record suggest that there has been deliberate wrongdoing, but the failure to record does have at least the potential to mask such wrongdoing. what the aforementioned statistics suggest is that the only way to ensure that all potential incidents of deliberate wrongdoing—such as deliberate racial profiling—are recorded is to require continuous recording. there are, however, some significant obstacles to implementing a continuous recording policy, most obviously privacy-oriented objections from both police and civilians. 85 the policing project, supra note 17, at 11. 86 katz et al., supra note 12, at 3. 87 nicholas e. mitchell, denver office of the indep. monitor, the denver police department’s body worn camera pilot project: a focus on policy and lessons learned 1 (2015). 88 catherine owens et al., the essex body worn video trial: the impact of body worn video on criminal justice outcomes of domestic abuse incidents 2 (2014). 89 2014 new orleans consent decree monitor third q. rep. 23–25; see also ken daley, cameras not on most of the time when nopd uses force, monitor finds, nola.com (sept. 4, 2014), http://www.nola.com/ crime/index.ssf/2014/09/cameras_not_on_most_of_the_tim.html [https://perma .cc/t7hg-s96g]. 168 columbia journal of race and law [vol. 9:1 2. obstacles to continuous recording despite the fact that continuous recording would best protect against deliberate racial profiling, there is little prospect of such a policy receiving popular support.90 the near consensus is that continuous recording policies unjustifiably infringe on the privacy of police officers and civilians. diverse interest groups from across the political spectrum converge on this position, including police unions,91 civil rights groups,92 and scholars,93 all of which have expressed views that the benefits of continuous recording are incapable of outweighing the collateral privacy incursions.94 the aclu’s position provides a summary of the range of concerns: “continuous recording would . . . mean a lot of mass surveillance of citizens’ ordinary activities. . . . [and] would also impinge on police officers when they are sitting in a station house or patrol car shooting the breeze.”95 3. recording all police-civilian interactions given the apparently insurmountable opposition to continuous recording, it is necessary to ask: what is the next 90 cf. josh feit, seattle state senator, aclu call for tougher body cam guidelines than in spd pilot, seattle met (feb. 9, 2015), https://www.seattlemet.com/articles/2015/2/9/aclu-body-cam-bill-calls-fortougher-oversight-than-spd-version-february-2015 [https://perma.cc/8hvakhwk] (describing an unsuccessful bill introduced in the washington state legislature that sought to impose continuous recording requirements on police officers). 91 see, e.g., nypd, nypd response to public and officer input on the department’s proposed body-worn camera policy 11 (2017) (“non-stop recording is impractical both because it would require a vast increase in long-term data storage capacity and because it would represent an invasion of the privacy of many people whom the police encounter.”). 92 see, e.g., stanley, supra note 82, at 3 (“continuous recording would also mean a lot of mass surveillance of citizens’ ordinary activities.”). 93 see, e.g., coudert et al., supra note 17, at 758 (“constant recording does not seem an acceptable interference into the right to privacy of policemen and of the persons filmed.”). 94 see fan, supra note 16, at 426 (“continuous recording is controversial to privacy proponents and law enforcement officers because of the heavy burden on the privacy of officers and members of the public they encounter.”). 95 stanley, supra note 82, at 3. no. 4:141] is it recording? 169 best activation policy to reduce deliberate racial profiling? scholarship has called for body-worn camera policies that require recording of all police-civilian interactions.96 yet, none has specifically considered how such a policy might help curb deliberate racial profiling. my claim that such an activation policy would reduce deliberate racial profiling relies on three separate sub-claims. first, police officers who adhere to the policy and record all interactions with civilians but nevertheless engage in deliberate racial profiling will likely be discovered and disciplined. secondly, a policy requiring the recording of all policecivilian interactions makes it more difficult for officers to remain undetected when they keep their cameras off so as to engage in deliberate racial profiling. such behavior will raise a “red flag”97 for supervisors reviewing or auditing the officer’s behavior.98 the more a policy requires cameras to be turned on, the more suspicious periods of non-recording will be to a supervisor reviewing an officer’s body-worn camera log. as has been explained by others adhering to this theory, “[r]isks resulting from on-the-fly editing [to avoid recording deliberate misconduct] . . . could be mitigated by tracking how often officers switch recording on and off and flagging those who do it exceptionally often.”99 finally, where activation is required for all policecivilian interactions, a police officer considering turning their camera off in order to engage in deliberate racial profiling 96 see, e.g., harris, supra note 50, at 365 (“in order for recordings [to most effectively improve police behavior] . . . the law, departmental rules, or both would have to require officers to record every interaction with citizens.”); newell, supra note 80, at 85 (“the deployment of officermounted cameras may only serve to support citizen oversight and law enforcement accountability when . . . officers adhere to strict guidelines requiring activation during every citizen encounter (unlikely) . . . .”); freund, supra note 17, at 128 (“this note recommends that officers turn on their cameras whenever they exit the vehicle to interact with a member of the public, but may subsequently turn off their camera if requested by a member of the public.”). 97 roy, supra note 73, at 40 (noting that more expansive activation policies will mean that when officers fail to activate their cameras, this will raise “red flags” for supervisors reviewing the officers). 98 see coudert et al., supra note 17, at 756 (“[i]n order for bodyworn cameras to be an efficient tool leading to socially-desirable behaviour of the officers who wear them . . . [there must be] a given level of certainty of being apprehended in case of misbehaviour . . . .”). 99 id. at 759. 170 columbia journal of race and law [vol. 9:1 may be deterred by the likelihood that another police officer—such as a partner or team member—will be recording. ariel and his colleagues have labeled this secondary deterrence mechanism “contagious accountability,”100 and two of the aclu’s body-worn camera experts have endorsed the idea.101 in light of these three arguments, this note suggests that an activation policy requiring recording of all policecivilian interactions will reduce instances of racial profiling. remembering that deliberate racial profiling functions on a conscious rather than an unconscious level (contrary to implicit bias), the following section turns to best practices for curtailing the unconscious bias problem. b. activation requirements and implicit racial bias how exactly do we think body-worn cameras can reduce implicit racial bias? most researchers seem to accept that the deterrence benefits of body-worn cameras do not extend to non-deliberative behavior, including behavior based on implicit racial bias.102 this rather pessimistic conclusion stands to reason that because implicit racial bias operates at a subconscious level, it is hard to believe that it would be affected by deliberative assessments of the possibility of one’s actions being observed.103 one empirical study confirms this intuition. researchers at stanford university used body 100 see ariel et al., supra note 79 (hypothesizing that body-worn cameras may in fact influence officer behavior even when they are not recording, because officers will become so accustomed to the oversight of body-worn cameras that they will assume constant surveillance, either from their own device or from that of another officer). 101 see chad marlow & jay stanley, should we reassess police body cameras based on latest study?, aclu: free future (nov. 20, 2017, 4:15 pm), https://www.aclu.org/blog/privacy-technology/surveillancetechnologies/should-we-reassess-police-body-cameras-based [https://perma.cc /8tpu-exns]. 102 see, e.g., ariel et al., supra note 12, at 518 (limiting their causal hypothesis to deliberative or thoughtful behavior); lawrence rosenthal, good and bad ways to address police violence, 48 urb. law. 675, 684 (2016) (doubting that implicit bias can be “solved” by body-worn cameras). 103 see spencer et al., supra note 23, at 58 (“[e]ven the specter of one’s behavior being reviewed may not help officers avoid the impact of implicit biases on their behaviors, any more than they can prevent bias from affecting them on the shooter task.”). no. 4:141] is it recording? 171 worn camera footage from routine police traffic stops in oakland to assess the respectfulness of officers interacting with civilians of different races. the study found that “officers speak with consistently less respect toward [b]lack versus [w]hite community members.”104 this was the case notwithstanding the fact that the police officers knew that they were being recorded. similarly, a number of studies of doctor-patient interactions have shown that doctors consistently offer a lower level of care to patients who do not share the doctor’s race or ethnicity, despite the fact that the doctors know that they are being recorded on audio and/or audiovisual equipment.105 although the authors of these studies do not purport to identify a cause for this observed effect, it is at least plausible that the police officers and doctors treated civilians and patients differently based on implicit racial biases rather than any deliberate racial profiling. the plausibility of this conclusion rests on the assumption, supported above,106 that implicit racial bias is more widespread than deliberate racial profiling and thus that the police officers and doctors are more likely to be discriminating subconsciously. if we accept that body-worn cameras are inapt in deterring implicit racial biases, we need to rely on the accountability and training theories for any hope of change. under these theories, we can hypothesize that body-worn cameras will allow police departments to more readily identify officers acting on implicit racial biases. such officers could then be disciplined and/or subjected to remedial training.107 for instance, a supervisor reviewing body-worn camera footage of pedestrian stops might observe that a particular 104 rob voigt et al., language from police body camera footage shows racial disparities in officer respect, 114 proc. nat’l acad. sci. u.s. 6521, 6521 (2017). 105 see, e.g., lisa a. cooper et al., patient-centered communication, ratings of care, and concordance of patient and physician race, 139 annals internal med. 907 (2003); joke c.m. van wieringen et al., intercultural communication in general practice, 12 eur. j. pub. health 63 (2002). 106 see sources cited supra note 27. 107 on implicit bias training, see richardson, supra note 32, at 2054–55 (“even asking people to be nonprejudiced can reduce implicit biases. consequently, courts and police departments may be able to implement strategies for reducing their effects on behavior.” (footnote omitted)). but see spencer et al., supra note 23, at 58 (“[t]here is little empirical evidence to support the effectiveness of such trainings, and they are rarely systematically evaluated.”). 172 columbia journal of race and law [vol. 9:1 officer appears to be disproportionately stopping black civilians absent any objective grounds. the supervisor could then bring this to the attention of the officer and, absent an explanation,108 discipline the officer and/or require them to participate in de-biasing training. similarly, if supervisors reviewing body-worn camera footage detect a departmentwide trend suggesting widely shared implicit racial biases, they could implement mandatory de-biasing training for the entire department.109 encouragingly, body-worn camera footage is already being reviewed by police departments for exactly these purposes. in san diego, one of the key motivations for the bodyworn camera program was to inform a better understanding of the way racial biases operate within the police force and how it might best be addressed. the san diego chief of police explained: when it comes to collecting data, the raw numbers don’t always fully capture the true scope of a problem . . . . but by capturing an audio and video account of an encounter, cameras provide an objective record of whether racial profiling took place, what patterns of 108 of course, body-worn camera footage will rarely provide all the necessary information about a given police-civilian interaction. on the limits of body-worn camera footage, see natalie todak, de-escalation in policecitizen encounters: a mixed methods study of a misunderstood policing strategy 172–73 (aug. 2017) (unpublished ph.d. dissertation, arizona state university), https://repository.asu.edu/attachments/189627/content/todak_ asu_0010e_17217.pdf [https://perma.cc/9qqw-4f32] (“[b]ody worn camera footage comes with its own set of limitations. . . . numerous details pertaining to the social interaction, background including the officer’s previous knowledge of the citizen or the type of call, the officer’s fatigue levels and previous work shifts and stressors, as well as the aftermath of the interaction are substantially clouded in a body camera video.”); and see also gráinne perkins, commentary, lights, camera, action! body-worn cameras: challenges and opportunities in police research, 12 policing 120, 122 (2018) (“bwcs are only one method of understanding police actions. how the police operate can be better understood in the examination of why they act in a certain manner.”). 109 the department of justice recently implemented mandatory implicit bias training for more than 33,000 federal agents and prosecutors. see julia edwards, justice dept. mandates “implicit bias” training for agents, lawyers, reuters (june 27, 2016) https://www.reuters.com/article/ us-usa-justice-bias-exclusive/exclusive-justice-department-mandates-implicitbias-training-for-agents-lawyers-iduskcn0zd251 [https://perma.cc/z83 q-f2w7]. no. 4:141] is it recording? 173 officer behavior are present, and how often the problem occurs.110 the oakland study mentioned earlier appears to have been driven by similar ideas. the stanford researchers who conducted the study hoped that the identification of the racial biases displayed in the body-worn camera footage would offer an opportunity for advancing police training.111 in light of the above, the activation policy that recommends itself to best reduce implicit racial bias is again a policy requiring presumptive recording of all police-civilian interactions. such a policy would capture as much police conduct as possible so as to maximize the opportunity of reviewing officers to detect, discipline, and retrain officers who appear to be acting on implicit racial biases. a draft proposal for such a policy is provided in section vi.d, but one important matter—“consensual” interactions—should be discussed so that it may then be assimilated into the draft proposal. c. activation requirements and “consensual” interactions the final relation between body-worn camera policies and racial bias that warrants discussion is the recording requirements for “consensual” interactions between police and civilians.112 fan describes “consensual” interactions as officer-initiated contact with a civilian “typically in situations where there is either no articulable basis yet for reasonable suspicion or it is unclear if there is a sufficient basis.”113 110 miller et al., supra note 17, at 8. although the speaker uses the term “racial profiling,” it is apparent that he is not referring to deliberate racial profiling but instead to “patterns” of implicit racial bias. 111 voigt et al., supra note 104, at 6521. 112 see fan, supra note 6, at 933–34. 113 id. at 933; cf. devallis rutledge, consensual encounters, police mag. (feb. 5, 2016) http://www.policemag.com/channel/patrol/articles/2016/ 02/consensual-encounters.aspx [https://perma.cc/t8ex-6msx] (“consensual encounters, in which police use no commands, force, red or blue lights or sirens, but simply approach a person and engage him in conversation and make plain-view observations without any official restraints, and for which no level of justification is needed, because unlike arrests and detentions, the consensual encounter is not a fourth amendment ‘seizure’ of the person.”). 174 columbia journal of race and law [vol. 9:1 1. racial bias in “consensual” interactions because “consensual” interactions do not attract fourth amendment scrutiny,114 police officers do not need probable cause or even a reasonable suspicion; they can act on a hunch or no hunch at all.115 it should be unsurprising, then, that “consensual” interactions are common sites for deliberate racial profiling and implicit racial bias.116 people of color are the subjects of “consensual” police interactions at a disproportionate rate.117 this is especially true with respect 114 see florida v. rodriguez, 469 u.s. 1, 5–6 (1984) (“the initial contact between officers and [civilian], where they simply asked if he would step aside and talk with them, was clearly the sort of consensual encounter that implicates no fourth amendment interest.”); florida v. bostick, 501 u.s. 429, 434–36 (1991) (“our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. . . . the encounter will not trigger fourth amendment scrutiny unless it loses its consensual nature.”). 115 see margaret raymond, the right to refuse and the obligation to comply: challenging the gamesmanship model of criminal procedure, 54 buff. l. rev. 1483, 1486 (2007) (“police are free to initiate a consensual encounter with an individual for any reason or no reason, perhaps based on a whim or a ‘hunch’ that cannot be supported by specific and articulable facts.”); daniel j. steinbock, the wrong line between freedom and restraint: the unreality, obscurity, and incivility of the fourth amendment consensual encounter doctrine, 38 san diego l. rev. 507, 509 (2001) (“[a] consensual encounter can be initiated for no reason or for any reason at all . . . .”). 116 see i. bennett capers, rethinking the fourth amendment: race, citizenship, and the equality principle, 46 harv. c.r.-c.l. l. rev. 1, 40 (2011) (“[a]n officer’s decision to single out an individual for a limited detention or consensual encounter is more likely to be based on implicit racial biases unknown to the officer rather than deliberate racism.”); burke, supra note 78, at 547 (“when there is no other justification for the search, the odds are higher that police are requesting consent, either consciously or unconsciously, based on racial or other stereotypes.”); wesley macneil oliver, with an evil eye and an unequal hand: pretextual stops and doctrinal remedies to racial profiling, 74 tul. l. rev. 1409, 1410–11 (2000) (describing “consensual” vehicular searches as “[t]he archetypal example of racial profiling”). 117 see racial disparity in consent searches and dog sniff searches, aclu ill. (aug. 13, 2014), https://www.aclu-il.org/en/publications/racialdisparity-consent-searches-and-dog-sniff-searches [https://perma.cc/pa5x -p8dd] (describing racial disparities in people subjected to “consensual” vehicular searches); see also steinbock, supra note 115, at 537 (“[c]onsensual encounters are more likely to be used against minorities and the poor . . . .”). no. 4:141] is it recording? 175 to “consensual” searches, whereby police will search a person after obtaining their verbal “consent.”118 2. activation policies and “consensual” interactions of the police departments that i studied, all required the recording of “consensual” searches. most also required recording of the request for consent to search. the new york and philadelphia police departments, however, did not explicitly require the request and consent to be recorded—just the search itself. unfortunately, fan does not appear to have considered “consensual” searches as a discrete category of “consensual” interaction. thus, we are unable to assess whether my finding of a widespread requirement for the recording of “consensual” searches is a novel development. the position with respect to “consensual” stops is less satisfactory. of the police departments that fan studied, only a quarter required officers to activate their cameras for “consensual” stops.119 these numbers were largely consistent with my study, where, as shown in appendix c, four of the ten department policies required recording “consensual” stops. this is concerning. in light of the acute danger of racial bias in “consensual” interactions, it is imperative that such interactions be covered by a mandatory activation requirement. as this note has explained in the preceding sections, the greater the mandatory recording coverage of a body-worn camera policy, the more effective such a policy will be at reducing deliberate racial profiling and implicit racial bias. take the example of a police officer who is patrolling a particular neighborhood and disproportionately, and without reasonable suspicion, approaches and questions young black males. the officer would appear to be deliberately racially profiling or acting on implicit racial bias. if the officer is deliberately racially profiling, then mandatory recording may result in disciplinary action. on the other hand, if the officer is motivated by implicit racial bias, then mandatory recording of his behavior will likely result in it being detected by a superior who could then engage him in remedial training. 118 glaser, supra note 26, at 36. 119 fan, supra note 6, at 932. 176 columbia journal of race and law [vol. 9:1 either way, the camera needs to be recording in order to engage the relevant theory of change. it is for this reason that the policy proposed in the next section requires recording of all “consensual” interactions, both stops and searches. d. proposal for a minimal discretion activation policy the differences, highlighted above, between fan’s december 2015 study of activation policies and my december 2017 study of policies suggest that, at least among the larger police departments, there is a trend from limited to minimal activation policies. the preceding discussion argued that this trend furthers the capacity of body-worn cameras to combat racially biased policing.120 importantly, however, this note has suggested that we ought to consider an even more ambitious activation policy—one that requires recording of all police-civilian interactions—if we want body-worn cameras to more effectively limit both deliberate racial profiling and implicit racial bias. what follows is a draft proposal for such a policy.121 definitions 1. for the purposes of this rule, the following definitions apply: a. activation: the turning on of the recording function on a body-worn camera.122 120 cf. roy, supra note 73, at 14 (“[potential downsides of a minimal discretion policy include] a more rigid or inflexible form of management control could convey to line officers a message of distrust or stifle their ability to make sound decisions under pressure.”). 121 for other aspirational draft policies, see kampfe, supra note 17, at 1196 (“participants should manually activate both the audio and visual features of their bwc prior to ‘responding to a call for service or at the initiation of any other law enforcement or investigative encounter between a police officer and a member of the public,’ unless doing so would be ‘unsafe, impossible, or impractical.’ ” (footnote omitted)); and aclu, a model act for regulating the use of wearable body cameras by law enforcement § 1(b) (2017), https://www.aclu.org/sites/default/files/field_ document/aclu_police_body_cameras_model_legislation_jan_2017.pdf [https:// perma.cc/32cc-svds]. 122 cf. phila. police dep’t, directive 4.21, body-worn cameras § 5(a) (2016) (“activate—any process or action that causes a body-worn no. 4:141] is it recording? 177 b. deactivation: the turning off of the recording function on a body-worn camera. c. confidential police informant: a person who an officer reasonably believes to be seeking to anonymously report a crime or anonymously assist in an ongoing law enforcement investigation.123 mandatory activation of body-worn cameras 2. while on duty, a member must activate their body-worn camera immediately prior to all interactions with civilians.124 3. if, for whatever reason, a member is unable to activate their body-worn camera prior to the commencement of a civilian interaction, the officer must activate the device as soon as possible thereafter.125 4. the civilian interactions described in rules 2 and 3 include, but are not limited to: a. welfare checks; b. community caretaking functions; c. calls for service; d. consensual interactions; e. consent searches (including searches of people, items, vehicles, buildings, and places); f. requests for consent to search; g. nonconsensual searches (including searches of people, items, vehicles, buildings, and places); h. investigatory or enforcement stops (including stops of pedestrians and vehicles); camera to begin recording and storing both audio transmissions and visual images.”). 123 this provision is based on aclu, supra note 121, § 1(d)(3). 124 cf. phila. police dep’t, supra note 122, at § 4(a) (“authorized body-worn cameras will be activated prior to responding to all calls for service and during all law enforcement related encounters and activities involving the general public.”). 125 cf. nypd, supra note 71, § 7 (“activate the bwc as soon as it is feasible and safe to do so after taking necessary police action to preserve human health and safety.”). 178 columbia journal of race and law [vol. 9:1 i. pursuits (including pursuits of pedestrians and vehicles); j. interviews with, or statements by, victims, witnesses, or suspects; k. summonses; l. arrests; m. arrestee transport; and n. uses of force. notification of recording 5. as soon as reasonably practicable after activating their body-worn cameras, a member must notify civilians that the interaction is being recorded.126 exceptions to mandatory activation requirements127 6. the mandatory activation requirements described above in rules 2, 3, and 4 do not apply in the circumstances described below. in these circumstances, and only these circumstances, a member must refrain from activating their body-worn camera: a. where the member reasonably believes that recording would compromise officer or civilian safety; b. where, in an interaction with a confidential police informant, the informant objects to the recording;128 c. where the member is present at a “strip search” of a civilian;129 d. where, in an interaction with an apparent victim of an offense, the victim objects to the recording;130 126 this provision is based on id. § 4. 127 this note has not focused on specific exceptions to mandatory recording requirements. nevertheless, it offers a sampling of commonly endorsed exceptions for illustrative purposes. such exceptions should ultimately be formulated with input from affected community members. 128 cf. nypd, supra note 71, § 10(e) (prohibiting recording when “[i]nterviewing a current or potential confidential informant”). 129 this provision is based on chi. police dep’t, supra note 75, § iv(a)(4), and phila. police dep’t, supra note 122, § 4(c)(1)(d). 130 cf. nypd, supra note 71, § 10(g) (categorically prohibiting recording of interviews with victims of sexual offenses). no. 4:141] is it recording? 179 e. where a member is in a nonpublic area (including a civilian’s home) and the member does not have a reason to lawfully search that area without a warrant;131 f. where the member reasonably believes that recording the interaction may compromise patient confidentiality;132 g. where the interaction takes place in a religious institution and the member does not have permission to record from the management of that institution;133 or h. where the interaction takes place on the grounds of any public, private, or parochial elementary or secondary school.134 deactivation135 7. having activated their body-worn camera, a member must deactivate their camera in the following circumstances, and the following circumstances only: a. where the member comes to reasonably believe that the circumstances do not fall, or no longer fall, within the mandatory activation requirements of rules 2, 3, and 4; b. where the member comes to reasonably believe that the interaction falls within the circumstances described in rules 6(a)–(h); or c. where the civilian interaction has concluded. 131 this provision is based on chi. police dep’t, supra note 75, § iv(a)(1). 132 cf. nypd, supra note 71, § 10(j) (prohibiting recording “inside of a medical facility unless engaging in a police action”). 133 this provision is based on phila. police dep’t, supra note 122, § 4(b)(4). 134 this provision is based on aclu, supra note 121, § 1(h). 135 cf. kampfe, supra note 17, at 1196–97 (affording police discretion in the decision to deactivate their cameras). 180 columbia journal of race and law [vol. 9:1 8. immediately prior to deactivating their camera, a member must, if practicable, announce the reason that they are deactivating their camera.136 9. having deactivated their camera, a member must again activate their camera if circumstances change such that the reason for deactivation is no longer operative and the situation falls within the mandatory activation requirements of rules 2, 3, and 4. notification to superiors 10. a member will report any and all unrecorded civilian interactions, and partially recorded civilian interactions, to their supervisor. this report must include the reason that the interaction was not recorded or partially recorded.137 the above policy is not intended to be a one-size-fits-all solution. rather, this proposal provides police departments and advocacy bodies with a concrete and realizable model of how to best minimize racially biased police practices through the use of body-worn cameras. importantly, this proposal is only a starting point for what is necessarily a local, contextspecific discussion. any efforts to adopt this model ought to be preceded by meaningful community consultation, especially with regard to the countervailing privacy interests. vii. conclusion in order to use body-worn cameras most effectively to curb racially biased policing, police departments ought to require recording of all police-civilian interactions, including “consensual” interactions. previous research has reaffirmed the positive impact of body-worn cameras on police behavior when officers are required to record all police-civilian 136 this provision is based on chi. police dep’t, supra note 75, § iii(b)(4). 137 this provision is based on nypd, supra note 71, § 6, and chi. police dep’t, supra note 75, § iii(b)(4). no. 4:141] is it recording? 181 interactions.138 such a policy would also better align with a growing public preference for policies requiring recording of “all interactions with the public,”139 and the original aims of civil rights groups who, in the wake of ferguson, pushed for mandatory recording of “every police-civilian encounter.”140 furthermore, such a policy would duly pay heed to the fact that black and latinx people are more likely than white people, and much more likely than police officers, to favor such a policy.141 it is appropriate to sound two cautionary notes. police policies ought to be shaped by the communities who will be subjected to them. this is especially true in the case of body-worn cameras, given the extraordinary power they have to erode civilian privacy.142 as barry friedman and maria ponomarenko have written: in a nation that . . . speaks endlessly of democratic engagement and the popular will, policing is a distinct outlier. of all the agencies of executive government, those that “police” . . . are the most threatening to the liberties of the american people. yet, from the standpoint 138 see ariel et al., supra note 12; see also ariel et al., supra note 45, at 461 (“[body-worn cameras can deter police from using force] but only in situations where police relinquish some discretion on activating these devices.”). 139 the policing project, supra note 17, at 12 (“some 64% of respondents [from the public] favored officers recording all interactions with the public . . . .”). 140 see, e.g., press release, lawyers’ comm. for civil rights under law et al., supra note 44. 141 compare the policing project, supra note 17, at 8 (recording survey results suggesting that blacks and latinxs are more likely than whites to support a policy requiring officers to record all interactions with the public), with nypd, supra note 91, app. a (question 6) (reporting that only twenty-six percent of surveyed officers believed that they should be required to record all interactions with members of the public). 142 see christopher slobogin, community control over camera surveillance: a response to bennett capers’s crime, surveillance, and communities, 40 fordham urb. l.j. 993, 996–98 (2013) (arguing for the importance of community authorization of camera surveillance systems); see, e.g., wash. rev. code § 10.109.020 (2018) (“any ordinance or resolution authorizing the use of body worn cameras should identify a community involvement process for providing input into the development of operational policies governing the use of body worn cameras.”). 182 columbia journal of race and law [vol. 9:1 of democratic governance, they are the least regulated.143 the body-worn camera policy space, where community consultation is already happening and should continue, is slowly correcting this democratic deficit.144 the model that this note has suggested is thus not prescriptive, but submitted as a useful starting point for discussions between police departments and affected communities across the country as the body-worn camera revolution continues. though body-worn cameras may go some way to curbing racial bias in policing, they are almost certainly not the panacea that some people initially hoped they would be.145 in order to best reduce racial bias in policing, what is needed is change in recruiting, organizational culture, training, and accountability mechanisms.146 this will take time. in the meantime, body-worn cameras can complement the broader change strategy. 143 barry friedman & maria ponomarenko, democratic policing, 90 n.y.u. l. rev. 1827, 1830–31 (2015) (footnote omitted). 144 see fan, supra note 16, at 402 n.26 (providing examples of different methods of community consultation on body-worn camera policies). 145 cf. ariel et al., supra note 79, at 294 (“[e]nthusiasm for a technological ‘fix’ to the perceived crisis in police legitimacy is unsurprising, as it is far cheaper to implement technology than [to] retrain officers or solve more endemic social problems.”); developments in the law¾policing, supra note 58, at 1797 (“their adoption should also not be used as an excuse to stifle continued conversation about the root causes of police violence and fractured community relations, as body cameras alone will never be the hoped-for cure-all.”). 146 cf. katheryn russell-brown, body cameras, police violence, and racial credibility, 67 fla. l. rev. f. 207, 213 (2016) (“requiring police to wear body cameras may do some good. however, we must address why black claims of state violence have historically been dismissed as incredible, non-critical, and rare. we cannot look to cameras (or other technologies), to solve a problem that has historical roots in racial discrimination.”). no. 4:141] is it recording? 183 viii. appendix a: stated objectives of police department body-worn camera policies accountability transparency training new york police (ny) x chicago police (il) x x los angeles police (ca) x x philadelphia police (pa) x houston police (tx) x x x washington metropolitan police (dc) x dallas police (tx) x x phoenix police (az) x x baltimore police (md) x x x miami-dade police (fl) x x x total 6 5 9 184 columbia journal of race and law [vol. 9:1 ix. appendix b: degree of discretion afforded to officers in activation policies limited discretion minimal discretion new york police (ny) x chicago police (il) x los angeles police (ca) x philadelphia police (pa) x houston police (tx) x washington metropolitan police (dc) x dallas police (tx) x phoenix police (az) x baltimore police (md) x miami-dade police (fl) x total 2 8 no. 4:141] is it recording? 185 x. appendix c: activation policies requiring mandatory recording of “consensual” interactions “consensual” stops “consensual” searches requests for consent new york police (ny) x chicago police (il) x x los angeles police (ca) x x x philadelphia police (pa) x houston police (tx) x x x washington metropolitan police (dc) x x x dallas police (tx) x x phoenix police (az) x x baltimore police (md) x x miami-dade police (fl) x x x total 4 10 8 186 columbia journal of race and law [vol. 9:1 xi. appendix d: methodology a. choice of sample my sample is made up of the ten largest metropolitan police departments in the united states (as measured by the number of full-time sworn personnel). i chose to study metropolitan police departments, rather than specialized agencies also using body-worn cameras, in order to capture the widest variety of police activities and the highest number of police-civilian interactions.147 similarly, i focused on the largest police departments because these are likely to serve the largest number of civilians and arguably are more likely than smaller departments to have expended considerable time and energy in formulating body-worn camera policies. to determine which departments fell within my parameters, i relied upon data from the most recent law enforcement management and administrative statistics (lemas) survey.148 this survey is sponsored by the bureau of justice statistics, a subsidiary body within the department of justice.149 the most recent survey data is from 2013 and was reported in may 2015.150 the police departments in my study were, from largest to smallest: new york (ny), chicago (il), los angeles (ca), philadelphia (pa), houston (tx), washington (dc), dallas (tx), phoenix (az), baltimore (md), and miami-dade (fl).151 147 cf. fan, supra note 16, at 424 (“the data collection focused on the primary police department serving each city because the portfolio of law enforcement activities by the municipal police department is broader than specialized agencies. moreover, the primary municipal police agency typically serves the greater portion of the city area and more people.” (footnote omitted)). 148 brian a. reaves, u.s. dep’t of justice, bureau of justice statistics, local police departments, 2013: personnel, policies, and practices (irene cooperman et al. eds., 2015), https://www.bjs.gov/content/ pub/pdf/lpd13ppp.pdf [https://perma.cc/kn94-x95u]. 149 see id. at 1 (“the lemas survey, conducted periodically since 1987, collects data on a range of topics from a nationally representative sample of state and local law enforcement agencies.”). 150 see id. 151 id. at 14 app., tbl.2. no. 4:141] is it recording? 187 my relatively small sample number (n=10) was informed by my study’s time and resource constraints and constitutes an admittedly significant study limitation. nevertheless, my sample size includes geographically diverse cities and populations of dramatically different sizes (from new york’s population of approximately 8,500,000152 to miami’s population of approximately 500,000153). furthermore, the policies of these ten departments are worthy of close study because the policy choices made by these large departments are most likely to be imitated by other, smaller departments.154 b. obtaining the policies all of the police departments included in my study had publicly available policies on their officers’ use of bodyworn cameras. two invaluable resources in locating the policies were the websites of the brennan center155 and the reporters committee for freedom of the press.156 other useful web-based policy and legislation aggregators were the urban institute157 and arizona state university.158 i supplemented the few gaps in coverage from these websites 152 new york, new york, city-data.com, http://www.city-data .com/city/new-york-new-york.html [https://perma.cc/cep5-3ulp]. 153 miami, florida, city-data.com, http://www.city-data.com/ city/miami-florida.html [https://perma.cc/l3d5-ucsc]. 154 see fan, supra note 16, at 424 (“[p]rominent cities help set the standards for others to emulate.”); charles r. shipan & craig volden, the mechanisms of policy diffusion, 52 am. j. pol. sci. 840, 843 (2008) (“the likelihood of a city adopting a policy increases when its nearest bigger neighbor adopts the same policy.”). 155 police body-worn camera policies, brennan ctr. for just., https://www.brennancenter.org/body-cam-city-map [https://perma.cc/dy4x7mfg] (last updated sept. 26, 2016). 156 access to police body-worn camera video, reporters committee for freedom press, https://www.rcfp.org/bodycams [https://perma.cc/nk4 g-gadb]. 157 police body-worn cameras: where your state stands, urb. inst., http://urbn.is/bodycam [https://perma.cc/l86t-ptyw]. 158 10 body-worn camera programs: how do they compare?, ariz. st. u. sch. criminology & crim. just., https://ccj.asu.edu/content/10body-worn-camera-programs-how-do-they-compare [https://perma.cc/2dct7qmt]. 188 columbia journal of race and law [vol. 9:1 with independent web-based research, including reference to individual department websites.159 the policies are as in force on december 31, 2017. c. specific methodology: appendix a my methodology for the results generated in appendix a was to search the department policies for the words “accountability,” “transparency,” and “training.” in the case of “accountability” and “transparency,” i searched only the portion of the policy devoted to objectives or goals. in the case of “training,” i searched both the objectives and goals portions of the policy and also searched for any mention of the word “training” as a consequence of noncompliance with department policy. d. specific methodology: appendix b my methodology for the results generated in appendix b was to measure the department activation policies against my binary definitions of the “limited discretion” model160 and the “minimal discretion” model.161 put simply, i categorized a policy as a limited discretion model if it only imposed a mandatory recording requirement with respect to specifically enumerated events. contrapuntally, i categorized a policy as a minimal discretion model if it imposed a mandatory recording obligation stated in general terms (for example, “[o]fficers shall . . . record all law enforcement activities”162). 159 cf. fan, supra note 6, at 930 n.183 (adopting similar methods for obtaining department policies). 160 see supra section v(a) (“limited discretion activation policies operate by presumptively providing police officers discretion as to whether or not to record their activities while on duty. this presumption of officer discretion is only displaced in specific circumstances (in which recording is mandatory).” (footnote omitted)). 161 see supra section v(b) (“[minimal discretion activation] policies start from a presumption that all enforcement activities will be recorded, subject only to narrow exceptions.”). 162 hous. police dep’t, general order no. 400-28, body worn cameras § 6, at 3 (2017). no. 4:141] is it recording? 189 e. specific methodology: appendix c the results presented in appendix c represent perhaps the most contestable of my findings because they are based in part on my definition of “consensual” interactions. in order that interested readers can test my results against their own definitions of “consensual” interactions, i include in the footnotes below the specific provisions of the various policies that i adjudged to support my findings. the policies i understood to require mandatory recording of “consensual” interactions were: los angeles,163 houston,164 washington, d.c.,165 and miami.166 i adjudged all ten policies to cover “consensual” searches.167 finally, i characterized eight of the policies (all except the new york and philadelphia policies) to require mandatory recording of requests for consent to search.168 163 see l.a. police dep’t, office of the chief of police, special order no. 12, body-worn video procedures—established § iii (2015) (requiring recording of all “[p]edestrian stops (including officer-initiated consensual encounters)”). 164 see hous. police dep’t, supra note 162, at 1, 3 (requiring recording of “[a]ny event during which an officer exercises his police authority or conducts any type of investigation, whether consensual or otherwise”). 165 see metro. police dep’t of the d.c., go-spt-302.13, bodyworn camera program § v(a)(3) (2016) (requiring recording of all “selfinitiated police action”). 166 see miami-dade police dep’t, directive 16-18, body-worn camera system §§ v(h), vii(b) (2016) (requiring recording of all instances “where a law enforcement officer, acting in an official capacity, comes in contact with the general public”). 167 see nypd, supra note 71, § 5(e); chi. police dep’t, supra note 75, § iii(a)(2)(j); l.a. police dep’t, supra note 163; phila. police dep’t, supra note 122, § 4(a); hous. police dep’t, supra note 162, at 1; metro. police dep’t of the d.c., supra note 165, § v(a)(4)(p)(1); dall. police dep’t, general order 332.00, body worn cameras § 332.04(a)(1)(g) (2015); phx. police dep’t, operations order 4.49, body-worn video technology § 3(b)(3)(a) (2018); balt. police dep’t, supra note 77; miamidade police dep’t, supra note 166, § vii(b)(7) (requiring recording of all searches, presumably including “consensual” searches). 168 see chi. police dep’t, supra note 75, § iii(2)(l); l.a. police dep’t, supra note 163; hous. police dep’t, supra note 162, at 1, 3; metro. police dep’t of the d.c., supra note 165; dall. police dep’t, supra note 167; phx. police dep’t, supra note 167; balt. police dep’t, supra note 77; miami-dade police dep’t, supra note 166. 190 columbia journal of race and law [vol. 9:1 watts, road to the poll cw final edit 2013 columbia journal of race and law 119 road to the poll1: how the wisconsin voter id law of 2011 is disenfranchising its poor, minority, and elderly citizens christopher watts* the right to vote has been irrefutably established as one of the most treasured and fundamental rights guaranteed to citizens by the united states constitution, and wisconsin’s act 23 (“act 23”) violates this standard. in may 2011, the wisconsin legislature passed this act, which mandated that any person attempting to vote in person or via absentee ballot had to present an approved form of government-issued photo identification. in application, act 23 would fail to satisfy its main goal of preventing voter fraud because, had it not been enjoined in march 2012, the law would not have prevented any of the limited attempts at voter fraud that have already occurred in the state. in the modern era of jurisprudence, the u.s. supreme court has determined that this right is so fundamental that any attempt to limit or violate it must be met with an extraordinarily close and careful examination, and any such examination would find act 23 to be unconstitutional. the process of obtaining a valid form of identification is a great burden for the state’s poor, minority and elderly citizens, and this burden is not met with a necessary and narrowly tailored law sufficient to justify the equal protection injuries inflicted on the voting population. act 23 also violates the twenty-fourth amendment by not offering a completely free form of identification for indigent citizens, thereby creating a poll tax. lastly, the wisconsin constitution has a complete article on suffrage and on the conditions necessary for changing voting laws, which act 23 fails to meet, rendering it unconstitutional at both the state and federal levels. i. introduction…………………………………………………………… 120 ii. the progression of voting rights in the united states 122 a. pre-civil war………………………………………………………….. 122 b. reconstruction……………………………………………………….. 123 1. minor v . happerse t t………………………………………….. 123 1 a shrewd reader might recognize that the adage used in the title of this note should end with the plural as opposed to the singular form of the word “poll,” an assessment that would be accurate if it were referencing the location where voting takes place. however, this title refers not to polling locations but rather to the poll tax laws that were prevalent during the jim crow south and, more specifically, how wisconsin’s voter identification law is an unfortunate step in that direction. * j.d., 2013, columbia law school; ll.m., 2013, university of amsterdam law school; b.a., 2007, carleton college. the author would like to thank professor olati johnson for her support and substantive suggestions and the columbia journal of race and law for their assistance in editing this piece. 120 road to the poll vol. 3:1 c. jim crow………………………………………………………………. 124 1. poll taxes…………………………………………………….. 124 2. supreme court approves exclusion………………………… 125 3. the death of jim crow………………………………………. 126 d. balancing the burdens on voters……………………………………. 128 iii. the development of voter identification laws………. 129 a. federal acts…………………………………………………………… 129 1. national voter registration act…………………………….. 129 2. help america vote act of 2002……………………………… 130 b. challenges to state voter id laws………………………………….. 131 1. georgia……………………………………………………….. 131 2. missouri………………………………………………………. 133 3. indiana……………………………………………………….. 135 iv. argument against the wisconsin voter id law…………. 136 a. the law………………………………………………………………. 136 b. burdick test………………………………………………………….. 137 1. burdens……………………………………………………….. 137 2. state interest………………………………………………….. 140 3. balancing test……………………………………………….. 140 c. twenty-fourth amendment…………………………………………. 142 d. wisconsin constitution………………………………………………. 143 e. possible arguments made by proponents of act 23………………… 144 v. conclusion……………………………………………………………….. 145 i. introduction 2013 columbia journal of race and law 121 there is no right “more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”2 the electoral process is structured in a way that is meant to maintain the integrity of the democratic system,3 and the ability to vote is the right to participate in that process. even the structure of the constitution indicates that the right to vote is of the most fundamental significance; therefore, the electoral process is understood to come with some regulation in order to preserve the integrity of that right.4 this regulation, however, is designed to guide the electoral process and to improve its efficiency, not to make it more difficult for citizens to participate in the political franchise.5 the right to vote has always been an important issue to citizens, and the problem with suffrage in the past has not been its significance but rather the reasons why certain citizens are given these rights and others are not.6 in the modern era of voting rights, the supreme court has determined that, because this right is so fundamental, any limitation or violation of it must be examined closely and carefully.7 our law prohibits factors such as wealth, race, and creed from determining a citizen’s ability to exercise the right to vote and recognizes that any introduction of such factors as evidence of a voter’s qualifications is irrelevant and wayward.8 but historically, this notion did not always reflect the mindset in this country; moreover, certain examples of those unequal suffrage principles, such as barriers to voting for black citizens, arguably might be resurfacing in present-day laws. in may 2011, the wisconsin legislature passed 2011 wisconsin act 23 (“act 23”).9 the act mandated that in order to vote in person or via absentee ballot, a voter had to present an approved form of government-issued photo identification.10 this note will examine the scope of this law, its effects on citizens, and its constitutionality, and it will suggest recommendations for addressing the failure of act 23 to satisfy any of its goals in a manner that justifies the burdens it places on wisconsin citizens. this note is divided into three parts. part ii will discuss the history of voting rights in its entirety. voting rights, and the groups allowed to exercise those rights, have gone through many changes in the two centuries since the ratification of the constitution. in order to recognize how act 23 may be reversing some of the progress made with regard to suffrage, it is important to understand how suffrage rights have not always been available to all citizens. part iii will examine the development of voter identification laws generally, looking specifically at what spurred their conception and at three important judicial decisions regarding state voter identification laws that were challenged on various grounds. part iv will provide an analysis of the wisconsin voter id law, will argue that it violates both the u.s. constitution and the wisconsin constitution, and will urge that it be struck down as unconstitutional and for the burdens it places on wisconsin’s citizens. this section will also address the prevalent counterarguments for its validity and necessity, namely, the existence of voter fraud and the act’s ability to impede such fraud. 2 wesberry v. sanders, 376 u.s. 1, 17 (1964). 3 anderson v. celebrezze, 460 u.s. 780, 788 (1983). 4 burdick v. takushi, 504 u.s. 428, 433 (1992). 5 id. at 433–35. 6 see harper v. va. state bd. of elections, 383 u.s. 663, 667–68 (1966) (discussing the arguments for and against the existence of a fee requirement for exercising the right to vote). 7 id. at 667 (citing reynolds v. sims, 377 u.s. 533, 568 (1964)). 8 id. at 668. 9 wisconsin act 23, 2011 wis. legis. serv. 1 (west) (codified in scattered sections of wis. stat. §§ 5.02– 343.50). 10 id. at §§ 1, 2. 122 road to the poll vol. 3:1 ii. the progression of voting rights in the united states a. pre-civil war from very early on in the history of the country, there has been a link between the right to vote and a requirement of proof that one qualifies as a member of the electorate.11 since the eighteenth century, disenfranchisement has been a consistent theme in voting laws. at every juncture in the tale of american suffrage, there has been at least one group of people, most often black citizens or the poor, whose rights to vote have been under attack. the original text of the constitution is essentially silent with regard to the voting rights of citizens and does not make any concrete suppositions about who might be allowed to vote and under what conditions.12 the voting guidelines in the constitution are explained fairly directly, but they do not detail the composition of the electorate responsible for choosing representatives, nor do they state which legislators will choose the senators; these decisions are left to the states.13 in determining how to proceed with elections, most states used a similar method to define which individuals were eligible to vote and which ones were not. on close examination of the history of suffrage rights in the states before the civil war, it appears that the requirement of a form of “identification” in order to exercise one’s right to vote is not a particularly new one; in fact, it has existed since the early days following the ratification of the constitution.14 unlike today’s requirements of proof of identity, however, the original requirement was more akin to an identification of economic status.15 in order to vote, an individual needed to demonstrate that he had a stake in the economy of the locality in which he wished to vote.16 most states implemented this condition by requiring that a potential voter own property, either real property or a minimum of $300 to $500 worth of personal property, depending on the state.17 the effect of this voting requirement was that only wealthy white men were allowed to vote, a result that persisted for decades.18 eventually, as the country grew, the property requirement became less feasible because it excluded certain desirable voters, particularly in the south, from voting.19 in north carolina alone, the property requirement disenfranchised approximately fifty thousand eligible white men. 20 with the 11 c. vann woodward, a history of the south: origins of the new south 1877–1913, at 331–32 (wendell holmes stephenson & e. merton coulter eds., 1951). 12 wesberry v. sanders, 376 u.s. 1, 12–18 (1964). the case delivers a comprehensive dialogue of the factors that were taken into consideration by the framers in determining how the right to vote would be dictated in the constitution. one of the major issues discussed in this debate was the question of how citizens of the states would be represented in the legislative body of the federal government. 13 see u.s. const. art. i, ii. the constitution explains that “the people of the several states” are to choose their representatives for the house of representatives and that state legislators shall choose the members of the senate for their respective states. id. art. i, §2, cl. 1. the constitution goes on to explain that the president and vice president of the country will be elected using the electoral college system. id. art. ii, §1, cl. 1–4. 14 see alexander keyssar, the right to vote: the contested history of democracy in the united states 8–10 (2000) (discussing the movements of the 1950s and 1960s that brought about voting and civil rights and other historically related topics). 15 id. at 9, 29. 16 id. 17 vann woodward, supra note 11, at 331. 18 keyssar, supra note 14, at 9 (suggesting that only white men with property were significantly affected by the law in a capacity that earned them the privilege of voting and that the interests of those without property could be adequately represented by these wealthy white men). 19 id. at 40–42. 20 id. at 41. 2013 columbia journal of race and law 123 increase in would-be voters demanding their right to vote, the property requirement finally met its complete demise in the mid-1800’s.21 however, as the country moved past the civil war, new methods for restricting suffrage rights began to develop. b. reconstruction during reconstruction, the recent enemies in the north and the south attempted to resolve their differences and unify as one country; it was a time of incredible volatility in united states politics, the effects of which were felt in voter disenfranchisement policies.22 reconstruction witnessed the passage of the fourteenth and fifteenth amendments and the beginning of federal, as opposed to state, control over voting rights.23 the reconstruction amendments planted the seed of a new conceptualization of the right to vote and memorialized a promise that states could not infringe on the rights of united states citizens. the fourteenth amendment defines a citizen of the united states as any “person born or naturalized in the united states, and subject to the jurisdiction thereof” and protects such citizens’ “privileges or immunities.”24 the fifteenth amendment complements the fourteenth and provides that the right of citizens “to vote shall not be denied or abridged by the united states or by any state on account of race, color, or previous condition of servitude.”25 though the language in the amendments seems clear, several courts throughout history, including the supreme court, have found ways to recast the amendments in a manner that denies certain citizens the right to vote. one of the clearest examples of this perverse interpretation is the case of minor v. happersett, in which a woman was denied the right to vote and the supreme court held that the fourteenth amendment does not protect voting rights.26 1. minor v . happerse t t 27 virginia minor was a native-born citizen of missouri.28 she was over the age of twenty-one, she met all the necessary requirements for voting (including the unofficial requirement of being white), and still she was refused the right to register to vote in the general election of 1872.29 in rendering its decision, the supreme court agreed that within the definition provided by the fourteenth amendment, minor was a citizen and was therefore entitled to the protection of her privileges and immunities.30 still, 21 id. at 42. 22 for a more detailed discussion on political disenfranchisement during the reconstruction period and the political violence that accompanied it, see vernon lane wharton, the negro in mississippi 1865–1890, at 181– 206 (1984); eric foner, reconstruction: america's unfinished revolution 1863–1877, at 279, 342–44, 425– 44 (1988); michael kent curtis, the klan, the congress, and the court: congressional enforcement of the fourteenth and fifteenth amendments & the state action syllogism: a brief historical overview, 11 u. pa. j. const. l. 1381, 1397–1414 (2009). 23 the fourteenth and fifteenth amendments were ratified in 1868 and 1870, respectively. for a more indepth analysis of the reconstruction amendments and their interplay with racial discord and suffrage rights, see henry l. chambers, jr., colorblindness, race neutrality, and voting rights, 51 emory l.j. 1397 (2002). 24 u.s. const. amend. xiv, § 1. 25 id. amend. xv, § 1. 26 minor v. happersett, 88 u.s. 162, 163 (1874). 27 though the case involves the voting rights of women, its use in this note is not to highlight the women’s suffrage movement but rather to exemplify how some laws have been used historically to prevent the granting of voting rights. this note discusses both race and gender in explaining the history of voting rights and recognizes the difference between the two. however, these differences will not be addressed because, for the purposes of this note, those differences are irrelevant. 28 minor, 88 u.s. at 163. 29 id. 30 id. at 165. 124 road to the poll vol. 3:1 in a decision that prevented suffrage rights from being granted to women, the court held that the right to vote was not one of the privileges or immunities of citizenship protected by the fourteenth amendment.31 according to the court, the fourteenth amendment did not add to the privileges or immunities of citizens; it merely “furnished an additional guaranty for the protection of such as [they] already had.”32 therefore, unless minor’s right to vote existed in her state at the time of the passage of the fourteenth amendment, the right was not protected.33 the court’s opinion stated that birthright citizenship was not enough to guarantee a right to vote and that groups of citizens could still be disenfranchised under the aegis of the law,34 a trend that continued throughout the jim crow era in the south. c. jim crow just as minor v. happersett illustrates how the law might be used to exclude individuals from the right to vote, the jim crow era provides many examples of laws and rules that were created specifically for that purpose.35 prevented by the fifteenth amendment from using race as a justification for the denial of suffrage rights, the former confederate states found other ways to disenfranchise black and african american36 voters.37 the lawmakers of the jim crow era blatantly attempted to prevent black citizens from voting by creating qualifications that were intended solely to keep these individuals from registering as voters.38 1. poll taxes depending on one’s point of view, the measures taken by the former confederate states at the turn of the twentieth century relating to voting rights may be considered ingenious or abhorrent. the poll tax was an extremely effective tool used by many southern states to exclude numerous voters— mostly black voters—who were deemed unfit for participation in the electorate.39 while not directly discriminating against anyone, the poll tax, like earlier property requirements, kept poorer individuals out of the process by requiring voters to meet a certain economic status. the cleverness of the poll tax was in its simplicity; it kept people from voting because it was expensive.40 that slavery was abolished only a few decades prior to the introduction of poll taxes and that most black voters consequently did not have 31 id. at 178. 32 id. at 171. 33 id. 34 minor v. happersett, 88 u.s. 162, 170–74 (1874). 35 the jim crow era was a period that lasted roughly from the 1890s until the mid-1960s. see ronald l. f. davis, creating jim crow: in-depth essay, diablo valley college, http://voyager.dvc.edu/~mpowell/afam/creating2.pdf (last visited dec. 2, 2012), for a more in-depth explanation of the beginning of this era, its impact on the country, and the negative effects it had on the country. 36 it is recognized that there are differences between the definitions of what makes a person black and what makes a person african american. this note will use both terms interchangeably, with both denoting people that would identify themselves as members of either group. 37 e. earl parson & monique mclaughlin, the persistence of racial bias in voting: voter id, the new battleground for pretextual race neutrality, 8 j.l. soc’y 75, 78 (2007). 38 id. 39 id. 40 j. morgan kousser, the shaping of southern politics: suffrage restriction and the establishment of the one-party south 64, 72 (1974).. 2013 columbia journal of race and law 125 the assets to cover the tax resulted in the exclusion of the vast majority of black people from the right to vote.41 it was not until the middle of the twentieth century that the last of the state poll taxes was eliminated. states like alabama and mississippi held out until federal law made the poll tax illegal, but some states, such as north carolina, rid themselves of the tax before they were required to do so.42 the damage, however, had already been done, in large part well before the end of the poll tax era.43 in the twenty years between 1885 and 1905, the rate of participation of black voters in the electoral process dropped from ninety-eight percent to a low of ten percent.44 during this period, courts throughout the country upheld the constitutionality of state poll taxes, thereby increasing their effectiveness and use.45 2. supreme court approves exclusion as the nineteenth century transitioned into the twentieth, there was no apparent end in sight for state efforts to disenfranchise the black voting population. starting most prominently with the decision in williams v. mississippi,46 the supreme court and other courts heard various challenges to the validity of poll taxes and consistently ruled in favor of their constitutionality.47 two such cases, breedlove v. stuttles48 and butler v. thompson,49 are ubiquitously cited for their holdings and reasoning. in breedlove, the question before the court was whether a georgia statute requiring every citizen to pay a poll tax before he or she could register to vote was constitutional.50 the appellant in breedlove, a twenty-eight year-old white man, was unable to register to vote because he had failed to pay the requisite poll taxes.51 mr. breedlove filed suit against the tax collector on the grounds that the denial of his registration violated the equal protection and the privileges or immunities clauses of the fourteenth amendment.52 the court explained that the privilege of voting comes not from the united states but rather from the individual states, and that the states are not prohibited by the constitution from defining 41 j. morgan kousser, shaw v. reno and the real world of redistricting and representation, 26 rutgers l.j. 625, 670– 71 (1995). 42 see michael j. klarman, the supreme court and black disenfranchisement, u. va. l. sch. pub. l. legal theory working paper series 8 (t2005), http://law.bepress.com/cgi/viewcontent.cgi?article=1049&context=uvalwps) (explaining that only three states—north carolina, louisiana, and florida—had done away with the poll tax before they were required to do so). 43 it is clear that during this time period there were more factors than just poll taxes that were at work in preventing black voters from casting their votes, namely voter harassment and intimidation from organizations such as the ku klux klan. because the focus of this note is on the effects of written law on suffrage rights, that social issue and certain others will not be discussed in detail. for a deeper discussion on political violence during this period, see gabriel j. chin & randy wagner, the tyranny of the minority: jim crow and the counter-majoritarian difficulty, 43 harv. c.r.-c.l. l. rev. 65, 83–96 (2008). 44 kousser, supra note 40, at 174. 45 see, e.g., id. at 262. 46 williams v. mississippi, 170 u.s. 213 (1898). 47 williams involved an african american who appealed his conviction on the grounds that the composition of his jury was not constitutional. the jury makeup was based on a mississippi statute that required potential jurors to pay poll taxes before being eligible to become a juror. the court found that the language of the poll taxes did not discriminate on the basis of race and was valid. justice mckenna stated that the poll tax laws of mississippi did “not on their face discriminate between the races, and it [was not] shown that their actual administration was evil; only that evil was possible under them.” id. at 225. 48 breedlove v. stuttles, 302 u.s. 277 (1937). 49 butler v. thompson, 97 f. supp. 17 (e.d. va. 1951), aff’d, 341 u.s. 937 (1951). 50 breedlove, 302 u.s. at 279–80. 51 id. at 280. 52 id. 126 road to the poll vol. 3:1 voting rights as they see fit as long as they do not violate the fifteenth or nineteenth amendments.53 the court then held that poll tax payment was ingrained in the history of reasonable regulation in georgia and other states54 and that georgia’s measures reasonably could have been deemed essential to that form of levy.55 nearly fifteen years later, the court affirmed a decision made in another southern state, virginia, with virtually the same outcome. in butler v. thompson, the appellant, an african american woman, was refused the opportunity to vote on the ground that she had not paid the required poll taxes for several preceding years, a problem that was compounded by the cumulative nature of unpaid poll taxes.56 butler argued, inter alia, that the poll tax requirement was “invalid because of the evil motives of the draftsmen of the virginia constitution of 1902 and subsequent poll taxes”57 and that the poll tax requirement violated the fourteenth and fifteenth amendments.58 as in breedlove, the district court held that the poll tax law did not violate the constitution and that voting is a privilege created by the states and not the national government.59 perhaps more disturbing than its decision was the court’s response to butler’s contention that the poll taxes were the product of hatred for black voters. the court admitted that the participants in the 1902 virginia constitutional convention manifested a desire to create poll tax laws in order to exclude the african american vote but claimed that they wanted to bring about this result “by means that were valid under the federal constitution or federal laws.”60 butler was decided in 1951, only one or two generations removed from the penning of this paper, while the supreme court was still maintaining the constitutionality of laws that had been concededly created solely for the purpose of invidious discrimination and disenfranchisement. these laws continued to serve as the status quo for voting rights for another decade until the national civil rights movement brought about their demise. 3. the death of jim crow the first big step toward ending class and race-based disenfranchisement was the ratification of the twenty-fourth amendment to the constitution in 1964. this amendment ended half a century of voter suppression by giving u.s. citizens the ability to vote in all federal elections without being required, by either the federal or state governments, to pay a poll tax.61 in the same year, the civil rights act of 1964 barred unequal application of voter registration requirements and significantly undermined the legality of facially discriminatory laws in the states.62 a third major accomplishment of the mid-1960’s, the voting rights act of 1965, gave the justice department fairly broad powers to initiate lawsuits involving discrimination claims based on denial of suffrage rights.63 53 id. at 283. 54 id. at 283–84. 55 id. at 284. 56 butler v. thompson, 97 f. supp. 17, 19–21 (e.d. va. 1951), aff’d, 341 u.s. 937 (1951). 57 id. at 20. 58 id. at 19. 59 id. at 22. the district court judge claimed, “to make payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the fourteenth amendment. privilege of voting is not derived from the united states, but is conferred by the state and, save as restrained by the fifteenth and nineteenth amendments and other provisions of the federal constitution, the state may condition suffrage as it deems appropriate.” id. (citing, inter alia, minor v. happersett, 88 u.s. 162, 170 (1874)). 60 id. at 21. 61 u.s. const. amend. xxiv, § 1. 62 civil rights act of 1964, pub. l. no. 88-352, 78 stat. 241 (codified as amended in scattered sections of 2 u.s.c., 28 u.s.c., and 42 u.s.c.). 63 voting rights act of 1965, 42 u.s.c. §§ 1973–1973aa-6 (2006). 2013 columbia journal of race and law 127 the final blow to the formalized jim crow south was harper v. virginia state board of elections.64 harper involved a suit by virginia residents who challenged the constitutionality of the state’s poll tax.65 a three-judge panel at the district court level dismissed the complaint in accordance with breedlove, and the supreme court heard the case on appeal.66 the court described the appellants simply as residents of the state, failing to mention at the outset that they were black and that they were employed in lowincome professions.67 the court concluded that the poll tax violated the equal protection clause because it involved invidious discrimination against those who could not afford to pay the tax.68 however, the court did not address the fact that the tax had overwhelming effects on african american voters, and it hardly mentioned the word “race,” even while making its decision during one of the most racially divided periods of the century.69 the most important holdings from harper were the designation of voting as a fundamental right and the striking down of the poll tax—the most effective tool of disenfranchisement—as unconstitutional.70 the essence of the opinion and the reason why it departed from precedent regarding poll taxes were captured in the words of justice douglas when he said: we have long been mindful that where fundamental rights and liberties are asserted under the equal protection clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. those principles apply here. for to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.71 at the same time, it is important to notice that even at the level of the supreme court, there was still a deep-seated battle between those who viewed the right to vote as fundamental and those who believed that the right was not absolute and that barriers should be left in place if the states desired them. these competing viewpoints resulted in the creation of a test that set standards for voting laws but carved out a way to preserve some level of deference to the states. 64 harper v. va. state bd. of elections, 383 u.s. 663 (1966). 65 id. at 664. 66 id. 67 id. 68 id. at 666. 69 the rationale for why the supreme court chose to write an opinion in which it did not describe the appellants as anything more than residents is unexplained, but considering that the opinion was written in the same period as the passage of the civil rights act of 1964 and the voting rights act of 1965, one might draw the conclusion that it did so in order to de-racialize the poll tax. regardless of the rationale, however, the fact that the court only mentioned black (or “negro”) citizens in reference to separate public facilities and to make it clear that it did not believe poll taxes were being used to deny these citizens their right to vote might signify either naiveté or willful blindness to the truth behind the poll tax laws. but when one examines the makeup of the court at the time, nine white men, and considers that justice black, who wrote a dissenting opinion, was formerly a member of the ku klux klan, perhaps the rationale behind the description of the appellants becomes clearer: during a volatile period in race relations, the court chose to write an opinion based on the law as it interpreted it rather than using race as a lynchpin. 70 three justices dissented from the decision in harper, in two dissenting opinions. justice black dissented on the grounds that according to section five of the fourteenth amendment, it was the job of congress to pass laws that protected the rights guaranteed by the amendment, not the job of the court to make that decision. id. at 678–79 (black, j., dissenting). justice harlan, joined by justice stewart, said that the equal protection clause does not necessarily guarantee social equality amongst citizens, that the constitutionality of a poll tax hinged on whether it had a rational basis, and that the poll tax at issue met this standard. justice harlan even went on to suggest that a poll tax could be supported by the arguments that it helps to “weed out those who do not care enough about public affairs to pay [the tax,]” that people with the means to pay the tax have more credentials to vote, and that the country would be better managed if only they could exercise that right. id. at 681–82, 685 (harlan, j., dissenting). 71 harper v. va. state bd. of elections, 383 u.s. 663, 670 (1966). 128 road to the poll vol. 3:1 d. balancing the burdens on voters the supreme court developed a balancing test for voter laws in two decisions. the first, anderson v. celebrezze, addressed the constitutionality of ohio’s requirement that independent presidential hopefuls file for candidacy earlier than party candidates.72 the court held that not every restrictive state voting law was necessarily unconstitutional and that states had the right to apply reasonable, nondiscriminatory restrictions on the right to vote.73 the proper test, according to the court, was first to consider the “character and magnitude” of the injury to the plaintiff under the first and fourteenth amendments and then to “identify and evaluate” the state interests presented as a justification for the rule.74 when weighing these two factors, the court must first consider how the state’s interests make it necessary to burden the plaintiff, and only then make a decision regarding the law’s constitutionality.75 this balancing analysis by the court has been named the burdick test after the second decision that helped to shape it, burdick v. takushi.76 in burdick, a registered voter in hawaii claimed that the state’s prohibition of write-in voting unreasonably infringed upon the rights of voters under the first and fourteenth amendments.77 the court held that “having a voice” in the election process is a “precious” right, but that it is a right to participate in a structured process.78 in making its decision, the court employed the balancing test laid out in anderson with the added proviso that a court must analyze the gravity of the injury to the voter’s rights before weighing the voter’s interest against that of the state.79 when the restrictions on the voter’s rights are severe, the state law must be narrowly tailored to advance 72 anderson v. celebrezze, 460 u.s. 780, 780 (1983). 73 id. at 788. 74 id. at 789. justice stevens clarified: [a] court . . . must first consider the character and magnitude of the asserted injury to the rights protected by the first and fourteenth amendments that the plaintiff seeks to vindicate. it then must identify and evaluate the precise interests put forward by the state as justifications for the burden imposed by its rule. in passing judgment, the court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. id. 75 id. 76 burdick v. takushi, 504 u.s. 428 (1992). 77 id. at 430. 78 id. at 441. 79 id. at 434. justice white explained the approach as follows: a court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the first and fourteenth amendments that the plaintiff seeks to vindicate against the precise interests put forward by the state as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights. under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens first and fourteenth amendment rights. thus, as we have recognized when those rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. but when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the first and fourteenth amendment rights of voters, the state's important regulatory interests are generally sufficient to justify the restrictions. id. (internal citations omitted). 2013 columbia journal of race and law 129 a compelling state interest; if the imposition is reasonable and nondiscriminatory, an important state interest is sufficient to support the law.80 the court still applies this standard. iii. the development of voter identification laws a. federal acts until the end of the last century, the federal government had very limited involvement in the regulation of suffrage rights. since the majority of the decisions regarding the right to vote had been handled by the states, the range of different rules and requirements was expansive. this section will explain the federal laws that were passed at the end of the twentieth century and the beginning of the twenty-first, and will address both their purposes and their effects on general suffrage rights in america.81 1. national voter registration act the national voter registration act of 1993 (nvra), also called the “motor voter law,” was the first major piece of federal legislation enacted explicitly to influence the actions of voters and states, specifically by allowing citizens to register to vote while applying for a driver’s license. not to be confused with the voting rights act discussed above, one purpose of the nvra was to enhance participation of eligible citizens in the electoral process.82 in essence, this act made it easier for citizens to exercise their right to vote, thereby decreasing the levels of disenfranchisement across the nation. the nvra removed nonvoting as a valid reason for a state to remove voters from registration records.83 it also required states to accept mail-in registration forms, which, by default, prevented states from requiring the in-person registration that they had been using as an opportunity to check voter identification.84 other provisions required fairly complicated procedures to remove voters who had changed addresses from registration rolls,85 and allowed those voters to vote in the precincts of their old or new addresses.86 opponents of the nvra claimed that these new standards only made it more difficult for polling places to maintain the integrity of elections and that the act made it easier for dishonest citizens to vote under the names of others.87 over time, these opponents sought a way to even out what they claimed to be unfair, and the help america vote act was a strong start in that direction. 80 id. 81 the focus of this note is the wisconsin voter identification law; however, since 2001 there have been approximately 1,000 bills that have been introduced in forty-six states to somehow tie voting to a form of identification. twenty-six states have passed major legislation since 2003 and those states are alabama, colorado, georgia, idaho, indiana, kansas, minnesota, mississippi, missouri, montana, new hampshire, new mexico, north carolina, north dakota, ohio, oklahoma, pennsylvania, rhode island, south carolina, south dakota, tennessee, texas, utah, virginia, washington, and wisconsin. for more information on these laws see voter identification requirements, nat’l conference of state legislatures, http://www.ncsl.org/legislatures-elections/elections-campaigns/voter-id-staterequirements.aspx (last updated oct. 24, 2012). 82 see 42 u.s.c. § 1973gg(b) (describing the purposes for the act as a whole). 83 see 42 u.s.c. § 1973gg-6(b) (2006) (disallowing states to remove voters from registration records unless they followed a complicated procedure only applicable to specific groups). 84 see 42 u.s.c. § 1973gg-4 (necessitating that states accept from voters a standard federal mail-in registration form). 85 see 42 u.s.c. § 1973gg-6(b). 86 see 42 u.s.c. § 1973gg-6(e) (specifying the various options available to a voter that moves from one voting jurisdiction to another). 87 see john h. fund, stealing elections: how voter fraud threatens our democracy 24 (encounter books 2d ed. 2004) (listing data that suggests american citizens would prefer a voter identification requirement). 130 road to the poll vol. 3:1 2. help america vote act of 2002 seven years after nvra was enacted, the elections calamity of 2000 provided an opportunity for proponents of voter identification requirements to seek a path of implementation for voter id laws. during the 2000 elections, thirty-one states did not have requirements that voters prove or verify their identity at polling places.88 four of these states had optional identification requests, nine required voters simply to state their names in order to vote, and eighteen required voters to sign a poll book.89 the remaining states required each voter either to show proof of identity through a wide range of possible documentary forms or to provide a signature at the polling place that would be compared to a signature made elsewhere.90 the presidential elections of 2000 and state voting requirements during that time are particularly relevant to the subsequent explosion of state voter identification requirements because of the immense voter problems that led to the contested outcome of that race. the problems with the florida ballots91 brought a surplus of attention to the election processes of both that state and the country as a whole92 and resulted in congress’ grueling passage of the help america vote act of 2002 (hava).93 the act aimed to reform the voting system and attempted to ensure that another event like the one in florida did not happen again by preventing voter fraud, especially in the voter registration systems in the states.94 hava mandated the creation of a nationwide database of voter registrants and the uniform and regular maintenance of state lists, and required mail-in voters to designate that they were citizens and over eighteen.95 hava also included a voter identification requirement.96 this identification provision required that mail-in registrants who had not previously voted in the state show proof of identification either upon registration or arrival at the polling location for the first time. 97 the requirement could be fulfilled by submitting a utility bill, paycheck, or other government-approved document showing name and address, or by providing a driver’s license number 88 see election reform: what’s changed, what hasn’t and why 2000–2006, electionline (2006), http://www.pewtrusts.org/uploadedfiles/wwwpewtrustsorg/reports/election_reform/electionline_022006.pdf (discussing the 2000 elections and the voter identification requirements of the states). 89 id. 90 id. the range of possibilities even within the states that required some sort of proof of identity was quite varied. for documentary proof, states allowed documents such as utility bills, credit cards and leases. for signatures, some states compared them to signatures that were already officially on file, and some states compared them to the signatures that were on a piece of identification presented by the voter. 91 the 2000 presidential elections, specifically what occurred in florida, drew significant attention to the way voting was taking place in the various states. in florida specifically, due to a close initial count of the ballots, there were several recounts of all ballots along with a supreme court decision (bush v. gore, 531 u.s. 98 (2000)) which together, declared bush the winner of the election. for more detail on the florida election, see daniel p. tokaji, the new vote denial: where election reform meets the voting rights act, 57 s.c. l. rev. 689 (2006). 92 id. at 693 (arguing that the problems that arose in florida opened people’s eyes to the electoral systems across the country). 93 help america vote act of 2002, pub. l. no. 107-252, 116 stat. 1666 (codified at 42 u.s.c. §§15301–15545 (supp. iv 2004)). see also leonard m. shambon, implementing the help america vote act, 3 election l.j. 424, 426–28 (2004) (detailing the complications in the passage and the legislative history of the help america vote act of 2002, including the fourteen month process of back-and-forth discussion between the parties on what would be included in the act and the shift in power from the republicans to the democrats). 94 see 42 u.s.c. § 15483 (2002) (listing specific requirements for the computerization of statewide voter registration lists and mail-in registration). 95 id. 96 see 42 u.s.c. § 15483(b)(1)-(3) (2002). 97 id. 2013 columbia journal of race and law 131 or the last four digits of a social security number.98 though this provision in hava was one of the most limited in terms of its effects, it served as a springboard for proponents of voter identification laws to push forward with state legislation in that regard.99 when hava was passed, only eleven states were in compliance with its voter identification requirement. 100 this fact pushed states to act quickly, and legislators who favored strict voter identification laws used it as an opportunity to get such laws passed.101 hava included a stipulation that arguably supported the proposition for strict voter identification laws; the act specified that its requirements were minimal and that states were free to enact stricter rules as long as they did not clash with federal law.102 as of january 2012, thirty states had enacted voter identification requirements in order to register to vote.103 due to the speed of expansion of these new voter identification laws, several challenges to their validity have been brought before the nation’s courts. b. challenges to state voter id laws there have been various challenges to the constitutionality of voter identification requirements in numerous states since the passage of hava, and the results have not been consistent.104 because of the similarities between different state laws, it may be helpful to understand the legal claims that have been made and the different holdings reached by courts in different states in order to highlight the inconsistencies between both the laws and the decisions. this section will provide the relevant facts and statutory issues surrounding key decisions in georgia, missouri, and indiana. these cases were selected because each one was heavily litigated and appealed, and together they paint a broad picture of how the courts have approached voter identification laws around the country. the cases also show the variety of approaches that courts can take when analyzing these laws, each of which will be addressed below with regard to the wisconsin voter identification law. 1. georgia three years after the passage of hava, georgia’s passage of a highly restrictive photo identification requirement rendered georgia the second state to make the presentation of a photo id an absolute requirement in order to cast a ballot in elections.105 this 2005 law was possibly the strictest voter identification regulation to be passed after hava; it gave no opportunity for free photo identifications to individuals who could not afford them, and it allowed no provisional ballot option to those arriving at polling locations without proper identification.106 the legislature even voted to increase the costs of existing photo identifications along with passage of the law.107 the plaintiffs in this suit, consisting mostly of black and african american civil rights groups such as the naacp, claimed that this law violated the fourteenth and twenty-fourth amendments, the civil rights act of 1964, and the 98 see 42 u.s.c. § 15483(b)(3)(b) (2002); see also 42 u.s.c. § 15483(b)(2)(a) (2002). 99 see election reform, supra note 88, at 6 (explaining various provisions in the help america vote act and how the states tackled issues they had). 100 see id. at 39–72 (showing that before the passage of hava very few states had any type of mandatory showing of voter identification). 101 see id. at 13–14. 102 see 42 u.s.c. § 15484 (2002). 103 see voter identification requirements, supra note 81. 104 to develop a deeper understanding of the various cases across the country that concern election law, see election law @ moritz, ohio state u. moritz coll. of law, http://moritzlaw.osu.edu/electionlaw/litigation/ (last visited dec. 2, 2012). 105 common cause/georgia v. billups, 439 f. supp. 2d 1294, 1305 (n. d. ga. 2006). 106 id. 107 id. at 1304–05. 132 road to the poll vol. 3:1 voting rights act of 1965.108 the district court preliminarily enjoined the law, finding that the plaintiffs had a substantial likelihood of success on their claims.109 the court agreed with the claim that the law placed undue burdens on citizens and operated as a poll tax,110 and provided several examples of the types of undue burdens placed on citizens: many voters who do not have driver’s licenses, passports, or other forms of photographic identification have no transportation to a voter registrar’s office or dds service center, have impairments that preclude them from waiting in often-lengthy lines to obtain voter id cards or photo id cards, or cannot travel to a registrar’s office or a dds service center during those locations’ usual hours of operation because the voters do not have transportation available. . . . [m]any voters who lack an acceptable photo id for in-person voting are elderly, infirm, or poor, and lack reliable transportation to a county registrar’s office. for those voters, requiring them to obtain a voter id card . . . is unduly burdensome.111 even though the district court found that the law served only to disenfranchise citizens, legislators did not give up and created an amended version very quickly. in january of the following year, the georgia legislature passed a new law that repealed the 2005 version and added provisions to fill some of the holes that the court had found in the law’s predecessor.112 under the new law, citizens could present one of many forms of photo id when attempting to vote,113 and a new acceptable form of identification was to be offered for free to individuals who could provide the proper documentation.114 for voters who had no form of photo identification, the administrative regulations allowed the presentation of documents such as birth certificates, prior year’s tax returns, or marriage certificates as proof of identity.115 for voters who could not verify their identities, the new law allowed provisional ballots that would be counted if the voters’ identities could be proved within a specified timeline.116 the same plaintiffs claimed that the 2006 law violated the georgia constitution, the fourteenth and twenty-fourth amendments, the civil rights act of 1964, and the voting rights act of 1965.117 this time, the district court ruled that it would be a stretch to consider burdens such as the gathering of documentation or the travel time expended to get to an approved location as poll taxes,118 and it rejected 108 id. at 1297. 109 id. at 1298. 110 id. 111 id. at 1345. 112 id. at 1305. 113 ga. code ann. § 21-2-417(a) (west 2006). 114 ga. code ann. § 21-2-417.1 (west 2006). 115 ga. comp. r. & regs. 183-1-20.01(4)(b) (west 2006). 116 ga. code ann. § 21-2-417(b) (west supp. 2008). 117 common cause/georgia v. billups, 439 f. supp. 2d 1294, 1298 (n. d. ga. 2006). 118 id. at 1354–55. the court used the reasoning from the southern district of indiana in indiana democratic party v. rokita to explain that election laws invariably come with some burden on the voters. the rationale was that tangential burdens are not poll taxes, and the cost of time and transportation qualify as tangential and also exist for voter registration or in-person voting, thereby disqualifying them as additional burdens. the court went on to say that no proof was offered that any individual might have to purchase a birth certificate in order to get the free form of identification, invalidating that argument under the poll tax claim. the court did not consider, however, the relative number of registration locations or polling locations on election day to the number of dmv offices available on a given day or in a given county. 2013 columbia journal of race and law 133 the arguments that the law violated any of the provisions of the civil rights or voting rights acts.119 the district court also found, however, that the plaintiffs had a valid equal protection claim, because even though the state’s interest in preventing voter fraud was “important and legitimate,” the law was not narrowly tailored to that interest.120 the district court used the burdick test as the standard for review.121 it weighed factors such as the weakness of the state’s efforts to educate voters on changes in the law, 122 the lack of proof of voter fraud as a problem,123 the availability of less burdensome alternatives,124 and the fact that the time period before the election was too brief to pass a law such as this one.125 the court made clear that it based this decision in favor of the plaintiffs on the fact that the law was not narrowly tailored to the state’s interest, and not on any invalidity of the law itself.126 in fact, in response to another challenge to the law the following year, the same court upheld the constitutionality of the law, denied a permanent injunction request, and found the law reasonably related to the state’s interest.127 in explaining the difference between the 2007 decision and the previous one, the court specifically noted the state’s efforts to educate the public about the changes in the law.128 the 2006 law was again attacked at the state level in 2011, at which point it reached the state supreme court.129 different plaintiffs brought the same claims against the law that had been made in 2006.130 the court found that the photo id requirement was a reasonable procedure under the georgia constitution; that the statute did not deprive voters from casting a ballot and was therefore constitutional; and that the requirement was a minimal, reasonable, and nondiscriminatory restriction that served the state’s interest in preventing voter fraud.131 georgia’s photo identification law was thus upheld by the state’s highest court as valid and constitutional, and has not been challenged since.132 2. missouri the same year that georgia passed its amended photo id law, the state of missouri passed its own law mandating that voters present valid in-state or federal photo identification in order to vote.133 the state claimed that this identification requirement was intended to prevent the impersonation of registered voters.134 missouri’s law required each voter to “present as identification a document issued by the state or federal governments that contains the person’s name as listed in the voter registration records, the 119 id. at 1355–58. 120 id. at 1350–51. 121 id. under the burdick test, the court must “weigh the character and magnitude of the asserted injury to the rights protected by the first and fourteenth amendments that the plaintiff seeks to vindicate against the precise interests put forward by the state as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights.” 122 id. at 1346–47. 123 common cause/georgia v. billups, 439 f. supp. 2d 1294, 1350 (n. d. ga. 2006). 124 id. at 1351. 125 id. at 1351–52. 126 id. 127 id. at 1337. 128 id. at 1378–79. 129 democratic party of georgia, inc. v. perdue, 707 s.e.2d 67 (ga. 2011). 130 id. 131 id. at 74–75. 132 id. at 75. 133 weinschenk v. state, 203 s.w.3d 201, 204–06 (mo. 2006). 134 id. 134 road to the poll vol. 3:1 person’s photograph, and an expiration date.”135 the law allowed the casting of provisional ballots if voters would sign an affidavit swearing that they did not have, or were not able to obtain, a proper photo id due to religious beliefs, disability, or a birthdate on or before 1941.136 the law also gave those without proper photo identification and without the means to obtain it the option to request a free nondriver’s license.137 the legislature even provided mobile processing units that would be made available upon request to the disabled and elderly for the distribution of such licenses.138 what the law did not provide was a method for individuals who did not possess the necessary documents, such as birth certificates or marriage licenses, to acquire a valid photo id without having to pay for it.139 the law also only allowed provisional ballots to be circulated to people who met specific conditions that did not include common problems such as a lack of funds or difficulty in navigating the process of obtaining a proper identification,140 and required a signature for each of these ballots.141 the signature provided on the affidavit had to match the signature on file with the election authority, and the law did not provide an alternative for disabled individuals who were unable to produce the same signature or for those whose signatures had changed.142 the state supreme court struck down the law as unconstitutional.143 because the right to vote is a fundamental right under the missouri constitution, the court applied strict scrutiny to its analysis of the law.144 the court examined the monetary and procedural burdens that were placed on citizens and found that even the free form of identification came with costs related to the acquisition of proper proof of identification.145 the court stated that even though the cost associated with the requirement of a document such as a birth certificate or passport does not qualify as a poll tax, “it is a fee that qualified, eligible, registered voters who lack an approved photo id are required to pay in order to exercise their right to free suffrage under the missouri constitution.”146 in the end, the court decided that the weight of the bureaucratic process in place lay unfairly on the shoulders of the poor and the elderly.147 even though the court found the state law invalid and unconstitutional, it determined that the state’s interest in the prevention of voter fraud was compelling.148 however, it held that the law was not narrowly tailored to this interest because the photo id requirement prevented only in-person fraud and did not affect absentee or registration fraud.149 the court further held that state laws enacted after the passage of hava had already effectively contained voter fraud.150 it then concluded that the law violated the missouri constitution.151 135 id. at 205. 136 id. at 206. 137 id. 138 id. 139 weinschenk v. state, 203 s.w.3d 201, 207–08 (mo. 2006). 140 id. at 206. 141 id. at 206–07. 142 id. at 207. 143 id. at 221–22. 144 id. at 215. 145 weinschenk v. state, 203 s.w.3d 201, 213 (mo. 2006). 146 id. 147 id. at 214–15 (comparing common cause/georgia, 439 f. supp. 2d at 1294, with respect to its discussion of the law’s effect on the elderly). 148 id. at 217. 149 id. 150 id. 151 weinschenk v. state, 203 s.w.3d 201, 222 (mo. 2006). 2013 columbia journal of race and law 135 3. indiana in 2005, indiana passed the senate enrolled act no. 483 (sea 483), which applied to citizens voting in person at polling locations during both general and primary elections.152 the law required these citizens to present a valid, government-issued photo id in order to cast their ballots.153 it allowed voters with religious objections to being photographed or who could not afford the proper form of identification to cast provisional ballots that would be counted if each voter signed an affidavit with the circuit court clerk within ten days of the election.154 voters who claimed to have an appropriate form of photo id but were unable to present it at the polling location could also cast provisional ballots that would be counted if they presented it to the county clerk within ten days.155 sea 483 did not apply to absentee ballots and exempted voters living in state-licensed facilities such as nursing homes.156 voter registration did not require a photo id, and qualified voters able to prove residence and identity could obtain free photo identification.157 the case against indiana’s law was the first time a specific state voter identification law came before the u.s. supreme court. the issue before the court was whether the law requiring government issued photo identification to vote violated the fourteenth amendment and the voting rights act.158 in a plurality decision with three justices joining the court’s opinion, one justice concurring and filing a separate opinion, two justices filing one dissent, and one justice filing a separate dissent, the court held that the state interests identified as justifications for the indiana statute were sufficiently weighty to validate any limitation the requirement imposed on voters.159 in announcing the court’s judgment, and writing for chief justice roberts, justice kennedy and himself, justice stevens claimed to agree with the general rule that “evenhanded restrictions” that protect the “integrity and reliability of the electoral process itself” were not invidious and satisfied the standard set forth in harper.160 this standard was that rational restrictions on the right to vote were invidious if not properly related to voter qualifications.161 the court found no such problem with the law at issue and decided that each of indiana’s interests in protecting the electoral process was adequately related to the photo id restrictions. 162 the first valid interest was the state’s desire to detect and deter voter fraud by participating in the national effort to reform election procedures that were seen as outdated.163 the next valid interest lay in the prevention of voter fraud that might occur due to the high number of names on indiana’s voter registration rolls of individuals who were deceased or who had moved out of state.164 with regard to this interest, the court admitted that sea 483 only addressed in-person voter impersonation, which, according to the evidence before the court, had not actually occurred in any indiana election.165 justice stevens nonetheless maintained the validity of the interest by mentioning occurrences of this type of fraud in other states and discussing a mayoral race five years earlier that had 152 crawford v. marion county, 553 u.s. 181, 185 (2008). 153 id. 154 id. at 186 (citing ind. code ann. §§ 3-11.7-5-1, 3-11.7-5-2.5(c) (west 2006)). 155 id. (citing ind. code ann. § 3-11.7-5-2.5(b) (west 2006)). 156 id. at 185–86 (citing ind. code ann. § 3-11-8-25.1(e) (west supp. 2007)). 157 id. (citing ind. code ann. § 9-24-16-10(b) (west supp. 2007)). 158 crawford v. marion county, 553 u.s. 181, 185 (2008). 159 id. at 204. 160 id. at 189–90 (quoting anderson v. celebrezze, 460 u.s. 780, 788, n.9 (1983)). 161 id. at 189. 162 id. at 191. 163 id. at 191–94. 164 crawford v. marion county, 553 u.s. 181, 195–96 (2008). 165 id. at 194. 136 road to the poll vol. 3:1 involved potentially fraudulent absentee voting, a problem not addressed by sea 483.166 justice stevens used these examples to demonstrate the reality of the threat of fraud and its potential effect on close elections.167 the final state interest the court addressed was the desire to protect public confidence in elections because confidence encouraged participation in the electoral process.168 in reaching its decision, the court applied the burdick test, weighing the state’s interest against the burdens imposed by the law’s requirement.169 in its discussion of possible burdens, the court found that any photo id requirement would create some type of burden that other methods of identification might not.170 it used the example of an individual’s loss of his wallet before voting to explain how burdens “arising from life’s vagaries” were not serious or frequent enough to raise constitutional questions.171 the court also found that burdens such as the inconveniences of retrieving a valid id or gathering the documents needed to prove identity are not substantial enough to represent a significant increase over normal burdens associated with voting.172 the court determined that the most significant burdens, such as those placed on people who could not afford photo identifications or who could not secure any of the required documentation to prove identity, were indeed severe, but that in light of the low number of individuals affected by such conditions, these burdens did not establish the grounds necessary to strike down the law.173 iv. argument against the wisconsin voter id law with a background of the development of laws surrounding suffrage rights over time and examples of what courts in other states have decided regarding voter identification laws, this section will discuss the voter id law in wisconsin and explain how it is invalid. this section will argue that act 23 fails to satisfy the burdick test as applied by the courts and violates both the u.s. and wisconsin constitutions. a. the law in may 2011, the wisconsin legislature passed act 23, a law that changed the state’s rules regarding voters, voting, registration, and identification cards.174 the act requires voters to present one of nine possible forms of identification at polling locations in order to vote: 1) a wisconsin driver’s license issued by the wisconsin department of transportation (wisdot); 2) a photo identification carded issued by wisdot; 3) a u.s. uniformed service identification card; 4) a u.s. passport; 5) a u.s. naturalization certificate issued within two years of the election where the certificate is being presented; 6) an unexpired driving receipt issued by wisdot; 166 id. at 195–96. 167 id. 168 id. at 191, 197. 169 id. at 201; see also burdick v. takushi, 504 u.s. 428 (1992) 170 crawford v. marion county, 553 u.s. 181, 197 (2008). 171 id. 172 id. at 198. 173 id. at 199–200. 174 wisconsin act 23, 2011 wis. legis. serv. 1 (west) (codified in scattered sections of wis. stat. §§ 5.02– 343.50). 2013 columbia journal of race and law 137 7) an unexpired identification card receipt issued by wisdot; 8) an identification card issued by a federally recognized indian tribe in wisconsin; or 9) an unexpired wisconsin university or college identification card with a signature and an issuance date and expiration date no more than two years apart.175 the act also requires voters either to reside in a district for twenty-eight consecutive days or to vote from their previous address. new residents who move into the state within twenty-eight days of the election are not eligible to vote for any office except that of president and vice president.176 act 23 does not require a photo id for registration forms, and it allows exceptions for groups of voters traditionally unable to vote, such as the indefinitely confined (e.g. nursing home residents).177 it also requires all absentee voters not explicitly exempted from the act to present an approved photo id with their absentee ballot requests.178 students using the approved form of university or college id also have to provide proof of their current enrollment at the time of an election.179 the ballots of voters who fail to show an appropriate form of photo identification must be set aside as provisional and counted only if such voters present such identification to the municipal clerk or board of election commissioners by 4:00 p.m. on the friday immediately following the election.180 those with religious beliefs that prevent them from being photographed may be exempted from the photo id requirement if they sign an affidavit identifying the religion and its tenets that prohibit photography.181 finally, eligible voters will not be charged a fee for an approved photo id if they request the available free version at the time of application.182 this list of rules that wisconsin voters must follow imposes previously nonexistent obstacles to the exercise of their suffrage rights. act 23 makes voting so much more difficult that it fails to satisfy the burdick test, because the burdens the law places on citizens far outweigh the state’s interests. b. burdick test the court in burdick laid out a four-step process to determine the constitutionality of a law affecting voting rights: first, an analysis of the gravity of the injury to the rights in question; second, a consideration of the character and magnitude of the injury; third, an evaluation of the state interest being pursued; and fourth, a balancing of these elements to determine whether the state’s interest is sufficient to justify the burdens on voters.183 1. burdens a claim against wisconsin’s act 23 might be filed on the ground that the act places undue burdens on the right to vote in violation of the equal protection clause of the fourteenth amendment. the burdens that the act imposes inflict harsh injuries, especially on minority, poor, and elderly citizens. this section will argue that these burdens are so severe that they may prevent eligible wisconsin voters 175 id. §§ 1–2. 176 id. § 14. 177 id. § 76. 178 id. § 19. 179 id. § 33. 180 id. §§ 89–91. 181 id. § 116. 182 id. § 140. 183 see burdick v. takushi, 504 u.s. 428, 434 (1992). 138 road to the poll vol. 3:1 from exercising their right to vote, and in some cases may even remove that right from those who have been voting for years without the currently required documentation. the first burden is the travel associated with acquiring one of the types of identification needed to cast a ballot under act 23.184 each one of the seventy-two counties in wisconsin may have well over ten congressional districts, but some have as few as one department of motor vehicles (dmv) office.185 the burden of having to go to a dmv in order to obtain a photo id is drastically different from that imposed by the previous law, under which voters could both register to vote and cast their ballots at one of the several polling locations in each congressional district by providing acceptable forms of proof of residence, which could be as simple as residential leases or a utility bills.186 adams county, for example, had twenty polling locations in september 2010187 and has only one dmv office.188 crawford county also has only one dmv office,189 and it had twenty-one polling locations listed for the 2012 elections.190 the statistics for other counties are similar. when combined with the facts that over fifty of wisconsin’s seventy-two counties had no available county-wide or multi-county public transit system in 2012,191 that over 600,000 citizens of the state live below the poverty line,192 and that over 780,000 citizens are over sixty-five years old,193 the statistics indicate that this law is likely to disenfranchise many voters. these hundreds of thousands of low-income and elderly citizens may well be the majority of those who do not own or cannot operate cars and who will be disenfranchised by the requirement that they obtain a proper photo id. these groups, black or african americans, the poor and the elderly, are also most likely not to possess already one of the nine forms of approved identification,194 either because they have no need for a car or because they cannot afford one.195 another of act 23’s disenfranchising injuries is the cost of obtaining an approved photo id. one must pay a fee of twenty-eight dollars to obtain an original wisconsin driver’s license, thirty-four dollars to renew a license, fourteen dollars to obtain a duplicate, and fifteen dollars to take the necessary skills exam.196 for twenty-eight dollars, the state also issues identification cards that are approved, nondriver’s licenses,197 and the more involved process of obtaining a passport includes a fee of 165 184 see wisconsin act 23, 2011 wis. legis. serv. 1 (west) (codified in scattered sections of wis. stat. §§ 5.02– 343.50). 185 see state of wisconsin congressional districts, wisconsin.gov, http://legis.wisconsin.gov/ltsb/redistricting/maps/con11.pdf (last visited dec. 2, 2012); see also wisconsin dep’t of transportation, http://dot.wi.gov/about/locate/dmv/scmap.htm (last visisted dec. 2, 2012). 186 wis. stat. ann. §§ 6.34, 6.55 (west 2012). 187 notice, location and hours of polling places, adams county wisconsin, http://www.co.adams.wi.gov/portals/0/general%20docs/ctyclerk/election/sept2010/type%20d%20notice%20l ocations%20and%20hours%20of%20polling%20places.pdf (last visited dec. 2, 2012). 188 see state of wisconsin congressional districts, supra note 185. 189 id. 190 notice of location and hours of polling places, crawford county wisconsin, http://crawfordcountywi.org/clerk/election_results.htm (last visited dec. 2, 2012). 191 2012 wisconsin public transit systems, wisconsin dep’t of transportation, http://www.dot.wisconsin.gov/travel/maps/docs/transit-systems.pdf (last visited jan. 23, 2013). 192 state & county quickfacts, wisconsin, u.s. census bureau, http://quickfacts.census.gov/qfd/states/55000.html (last visited dec. 10, 2012). 193 id. 194 why millions of americans have no government id, npr (feb. 1, 2012), http://www.npr.org/2012/02/01/146204308/why-millions-of-americans-have-no-government-id. 195 id. 196 driver licensing fees, wisconsin dep’t of transportation, http://dot.wi.gov/drivers/drivers/driverfees.htm (last visited dec. 2, 2012). 197 id. 2013 columbia journal of race and law 139 dollars.198 the remaining forms of approved photo id involve unique and detailed processes that do not apply to the majority of the population.199 along with the identifications that come with a fee, the state also offers a free form of identification that can be used for voting.200 however, there are still costs associated with the free form of id because citizens applying for the id must prove, through original documentation, their name and date of birth, their legal status in the country, their identity, and their wisconsin residency.201 each of these four categories must be proved individually, and each has its own specific set of required authentic documents.202 to prove name and date of birth, the only permissible forms of documentation are a certified birth certificate, a certificate of citizenship, a foreign passport, a tsa worker id, or a valid court order.203 since the last four documents in the list likely apply only to a miniscule portion of the population, the only document relevant to the majority is the birth certificate. to obtain a birth certificate in the state of wisconsin, one must pay a fee of twenty dollars and prove one’s identity;204 the primary forms of identification for this purpose are a driver’s or non-driver’s license with a photo.205 these two types of proof are thus inherently irrelevant to voters applying for a free photo id, because if they had one, they would not be applying in the first place. secondary forms of identification, of which two types must be presented, include passports, major credit cards, checkbooks, government photo ids, health insurance cards, recent leases, utility bills, or traffic tickets. some of these types of documentation (traffic tickets, utility bills, and leases) require a photo id to obtain them at the outset, so this list, too, is limited. those most likely to need a free form of identification, the poor and the elderly, are also the most likely not to have access to their birth certificates and thus the most likely to go through this process. 206 voters born before birth certificate records were kept, who were never issued birth certificates, or who were issued incorrect certificates, have no relief under act 23.207 in order to obtain a free photo id, then, wisconsin citizens must present their birth certificate at some point in the process. if such an individual does not already have one, he or she must pay a twentydollar fee to obtain a new one and compile separate forms of identification to prove his or her identity. in other words, the photo id that is supposed to be free for those who need it could potentially require the payment of twenty dollars and the presentation of two forms of identification (secondary forms) in order to get the identification (birth certificate) needed to get the identification (free photo id) needed to exercise the fundamental right to vote. therefore, in reality, it may be impossible for many wisconsin citizens who need the “free” id option to take advantage of it. 198 passport fees, travel.state.gov, http://travel.state.gov/passport/fees/fees_837.html (last visited dec. 2, 2012). 199 see wisconsin act 23, 2011 wis. legis. serv. 1 (west) (codified in scattered sections of wis. stat. §§ 5.02– 343.50). 200 id. § 145. 201 obtaining a wisconsin state id card for free, gov’t accountability bd., http://gab.wi.gov/sites/default/files/publication/137/free_state_id_pdf_10679.pdf (last visited dec. 2, 2012). 202 id. 203 id. 204 obtaining a birth certificate, gov’t accountability bd., http://gab.wi.gov/sites/default/files/publication/137/birth_certificate_pdf_21175.pdf (last visited dec. 2, 2012). 205 id. 206 voter suppression: the “schurick doctrine” and the unraveling of american democracy, opendemocracy (aug. 27, 2012), http://www.opendemocracy.net/5050/ruth-rosen/voter-suppression-schurick-doctrine-and-unravelling-ofamerican-democracy. 207 see why millions of americans have no government id, supra note 194. 140 road to the poll vol. 3:1 moreover, the cost of obtaining a birth certificate only serves the purpose of proving name and date of birth along with legal presence.208 one must also prove identity and wisconsin residency in order to get a valid photo id; additional documents are required to satisfy those categories.209 procurement of these other necessary documents may not come with the same hassle associated with a birth certificate, but the effect is the same. those who are most likely to need free photo ids—african americans, the poor, and the elderly—are those who are the least likely to have the documents necessary to acquire such ids.210 this is especially true in the many cases in which the standard in place requires an existing form of photo id to get the free photo id. the costs of the burdens imposed by act 23 are not just monetary but also practical. to acquire an approved photo id, a citizen must travel to a state-operated dmv office. aside from the practical and financial difficulties associated with getting to one of these offices are those associated with the hours during which these offices are open. none of the dmv offices are open on weekends, few are open past 5:00 p.m., many are open only two or three times a week, and several are open only two or three times a month.211 the majority of the offices are open from 7:00 a.m. to 5:00 p.m. on their days of operation,212 but these are the working hours of most citizens. moreover, citizens who do not already have valid forms of photo identification are legally unable to drive, so getting to the dmv offices when they are open becomes a compounded burden on those who can least afford it. it is also well-known that a trip to the dmv is often one of hours, not minutes, and that once a citizen has successfully applied for a proper id, there is usually a waiting period before he or she receives it.213 2. state interest wisconsin has interests in preserving the electoral integrity of the state, in preventing and deterring voter fraud, and in boosting voter confidence through the execution of a more structured electoral system. 3. balancing test in order to determine how to balance the burdens that a law like act 23 imposes on citizens against the interests of the state, the first step is to look at the injuries that result from the burdens imposed.214 when the restrictions on voters’ rights are severe, the law must be necessary and narrowly tailored to advance a compelling state interest; if the impositions are reasonable and nondiscriminatory, an important state interest is sufficient to sustain the law.215 since the burdens imposed by act 23 are severe, a court would be most likely to apply the more stringent level of scrutiny, and determine that the act must be both necessary and narrowly tailored to advance wisconsin’s compelling interests. this section will argue that an application of the balancing test to act 23 demonstrates that the law’s burdens on citizens far outweigh its benefits to the state. the section will then address possible counterarguments, along with their merits and their likelihood of success in court. 208 obtaining a wisconsin state id card for free, supra note 201. 209 id. 210 see why millions of americans have no government id, supra note 194. 211 dmv service centers, wisconsin dep’t of transportation, http://www.dot.wisconsin.gov/about/locate/dmv/scmap.htm#city (last visited dec. 2, 2012). scroll down to the dmv service center links and select a link to determine hours of operation. 212 id. 213 see voter suppression, supra note 206, at 194. 214 see burdick v. takushi, 504 u.s. 428 (1992). 215 id. 2013 columbia journal of race and law 141 by passing act 23, wisconsin’s legislature imposed an undue burden on the fundamental right to vote, which may well violate the equal protection clause by disparately impacting suspect classes of citizens—namely african americans, the poor, and the elderly—in a way that reveals discriminatory intent. the wisconsin supreme court has held that the right to vote is a fundamental right provided by the state constitution, and that any statute that “denies a qualified elector the right to vote is unconstitutional” and void.216 this ruling applies directly to act 23. the state’s new voter id provisions require every individual voter to present one of nine forms of approved photo identification, the most frequently used being a state driver’s or non-driver’s license.217 as mentioned earlier, twelve percent of wisconsin’s population lives below the poverty line and fourteen percent is over sixty-five years of age.218 though it is likely that many of these citizens, especially the elderly, are registered voters who have been voting for years, this law will keep them from exercising that right. the missouri supreme court, considering a similar set of facts in weinschenk v. state, found that a denial of suffrage to this extent imposed more than a de minimis burden and struck down the voter identification law in question.219 for citizens who do not have any appropriate form of identification, the process for obtaining one is arduous and time-consuming. in order to apply for a driver’s license, a non-driver’s license, a passport, or even a free photo id, citizens must offer documents of proof of identity before their id applications will be accepted.220 the easiest and most common document proving identity is a birth certificate, which comes with its own set of requirements and fees.221 the result is that potential voters will have to show identification to retrieve the identification necessary to obtain the identification necessary to vote, even when attempting to acquire the free form of photo id. this burden may impose an injury as severe as complete disenfranchisement. citizens who are otherwise eligible to vote will be unable to exercise that right because they cannot afford id fees, find a way to make it to a dmv office when one is open, or provide the documentation needed to apply for an approved photo id. because of the severe nature of the burdens placed on citizens by the requirements of act 23, strict scrutiny must apply to the state’s law, which thus must be necessary and narrowly tailored to a compelling state interest. 222 the interests in preserving electoral integrity, preventing fraud, and increasing voter confidence and participation are all compelling state interests; however, the requirements of act 23 are not tailored narrowly enough to those goals. act 23 directly addresses possible fraud by in-person voters and by absentee voters, but it does not address fraud issues concerning double voters or convicts voting illegally. according to the wisconsin constitution, those convicted of felonies may be excluded from suffrage rights.223 in 2004, a number of inmates signed up to vote using absentee ballots; though several of the inmates were felons and thus ineligible to vote,224 a small number of these ineligible inmates cast their ballots without being 216 ollmann v. kowalewski, 300 n.w. 183, 185 (wis. 1941). 217 wisconsin act 23, 2011 wis. legis. serv. 1 (west) (codified in scattered sections of wis. stat. §§ 5.02– 343.50). 218 see state & county quickfacts, supra note 192. 219 weinschenk v. state, 203 s.w.3d 201, 213 (mo. 2006). 220 see voter photo id law information, gov’t accountability bd., http://gab.wi.gov/elections-voting/photoid (last visited dec. 2, 2012). click the links on the left side of the page for the desired silo of information. 221 obtaining a birth certificate, supra note 204. 222 see burdick v. takushi, 504 u.s. 428 (1992). 223 wis. const. art. 3 § 2. 224 see the truth about “voter fraud”, brennan center for justice (sept. 2006), http://www.brennancenter.org/page/-/d/download_file_38347.pdf. 142 road to the poll vol. 3:1 caught, including one who presented a department of correction identification card with the word “offender” on it at the polling location.225 act 23 addresses neither this type of fraud nor that perpetrated by double voters. in the same 2004 elections, dozens of voters registered twice and were listed twice on the state’s registration rolls.226 double registration is easily accomplished by registering at two separate locations due to the common occurrence of different people’s having the same name and/or birthday. act 23 does nothing to prevent this type of fraud, either. not only is act 23 unable to address these types of fraud, but it is also unnecessary to the achievement of its purported goals. a law cannot be narrowly tailored to the accomplishment of an interest if it is unnecessary. the 2004 election in wisconsin was a hot button issue due to the wide allegations of fraud and the accompanying legislative pressures to pass more restrictive identification requirements.227 the concerns about fraud spurred an investigation into the election that uncovered a total of only seven individuals who knowingly cast invalid ballots; all of them had felony convictions.228 these seven cases equated to 0.0002% of wisconsin’s votes.229 with this rate of fraud, a voter would be thirty-nine times more likely to be struck by lightning than to commit voter fraud.230 because such fraud is thus not a problem in wisconsin, act 23 is an unnecessary law. the act is even more irrelevant because hava would likely resolve the miniscule fraud problems that do exist, or would at least prevent as much fraud as act 23.231 the 2002 federal law, as discussed above, requires voters to present proof of identity or residence at polling locations and requires the computerization of both statewide voter registration lists and mail-in registration.232 the modernization of the system would help to keep out potential double voters, and hava’s broader list of approved photo identifications would place fewer burdens on voters. though it goes without saying that wisconsin has compelling interests in maintaining a fair electoral system, act 23 sweeps too broadly to justify the burdens it imposes. act 23 does not meet the necessary and narrowly tailored standard because it does not prevent the only type of fraud that has been relevant in the state. act 23 is, moreover, unnecessary in light of the facts that the low incidence of fraud that has been discovered indicates that fraud is not actually an issue in the state, and that hava already provides a more effective way to address the state’s interests. c. twenty-fourth amendment act 23 also violates the twenty-fourth amendment through its imposition of a poll tax. with only limited exceptions, voters without approved photo ids must spend money to obtain the necessary supporting documentation. the supposedly “free” photo id option is irrelevant and imaginary because voters attempting to procure such an id will still incur costs to produce the other necessary documents. according to the supreme court in harper v. virginia,233 “[w]ealth or fee-paying has . . . no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened.”234 under act 23’s approved photo id requirement, however, most eligible voters in wisconsin will have to pay a fee 225 id. 226 id. 227 id. 228 id. 229 id. 230 despite a 0.0002 percent rate of voter fraud, reince priebus claims wisconsin is “riddled with voter fraud”, thinkprogress (dec. 2, 2011), http://thinkprogress.org/justice/2011/12/02/381172/reince-priebus-voter-fraud/. 231 see the truth about “voter fraud”, supra note 224. 232 see 42 u.s.c. § 15483 (2002). 233 see harper v. va. state bd. of elections, 383 u.s. 663 (1963). 234 id. at 670. 2013 columbia journal of race and law 143 to exercise the right to suffrage.235 moreover, the citizens who currently lack proper identification are those least capable of bearing the cost. for the hundreds of thousands of wisconsin citizens living below the poverty line, a twenty-dollar fee for a birth certificate is a severe burden to endure. in 1956, the supreme court found that the exercise of fundamental rights cannot be conditioned upon financial expense.236 under act 23, however, citizens without an approved photo id must incur costs to exercise their indisputably fundamental right to vote. the act disenfranchises those who cannot afford such costs, thereby stripping them of a right guaranteed to them by the constitutions of both the state and the country. wisconsin’s act 23 not only fails to meet the constitutional standards of the twenty-fourth amendment, but it is also invalid under the wisconsin constitution. the state legislature’s passage of the act was an abuse of discretion under the language of the state constitution.237 d. wisconsin constitution the wisconsin constitution’s provisions on suffrage are very specific, and invalidate act 23 both on its merits and with regard to how it was passed into law. the discussion above addresses a federal constitutional approach; this section will argue the invalidity of act 23 from the perspective of the state’s constitution. article 3 of the wisconsin constitution sets out the rules of suffrage for the state. section 1 of the article specifies who qualifies as an elector, and its language is clear: “every united states citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.”238 section 2 supplies more detail. it states that suffrage laws may only be enacted if they define residency, provide for registration of electors and for absentee voting, exclude specific persons under specific conditions, and are subject to ratification by the people in a general election in the event of an extension of voting rights to additional classes.239 the persons who may have their suffrage rights removed are those convicted of a felony, unless restored to civil rights, and those determined by a court to be fully or partially incompetent, if such persons do not understand the elective process.240 article 3 of the wisconsin constitution does not provide that the state legislature can exclude citizens from the right to participate in the electoral process for any reason not listed in section 2(4). the article also does not give the legislature the right to add to the qualifications listed in section 1. act 23, however, made both of these errors. the act creates a separate class of citizens, those without a specific type of photo id, and excludes them from the voting process. unless these individuals are felons or incompetent, such exclusion violates section 2. the exclusion also violates section 1’s mandate that, barring the listed exceptions, all that is required to be a qualified voter is u.s. citizenship, an age of at least eighteen, and residency in the district where one’s ballot is cast. wisconsin act 23 is thus unconstitutional as a violation not only of the equal protection clause of the fourteenth amendment and the twenty-fourth amendment of the u.s. constitution, but also of the wisconsin constitution’s article 3, sections 1 and 2. 235 wisconsin act 23, 2011 wis. legis. serv. 1 (west) (codified in scattered sections of wis. stat. §§ 5.02– 343.50). 236 griffin v. illinois, 351 u.s. 12, 16–19 (1956). 237 wis. const. art. 3. 238 id. art. 3, § 1. 239 id. art. 3, § 2. 240 id. art. 3, § 2(4). 144 road to the poll vol. 3:1 e. possible arguments made by proponents of act 23 the main argument put forth by act 23’s proponents is the importance of the state’s interests in protecting the electoral process and preventing fraud. as discussed above, this argument does not meet the standards needed to justify the injuries sustained by wisconsin citizens. furthermore, fraud in the system is virtually nonexistent. the 2004 elections in wisconsin involved a significant number of fraud allegations and a heightened debate about voter id regulations because two years after the passage of hava, proponents of stricter photo id requirements saw an opportunity to get such provisions passed. 241 the truth about the amount of fraud in that election, however, is unimpressive and unpersuasive. throughout the general election, there were only nineteen substantiated cases of votes cast by ineligible voters; eleven from milwaukee alone (all cast by felons) and eight throughout the rest of the state (two cast by felons, one by a foreign national, one by a seventeen-year-old child, and four ballots by deceased voters).242 only seven of these votes were actually counted, and act 23 would have prevented none. the total number of fraud allegations in the election was 6,877, under categories of unprocessed registration cards, flawed addresses, convicted criminals, double voters, and fictitious voters.243 even if all of these allegations had been accurate and had been counted, which they were not, the total number still would have equaled only 0.2% of the state’s votes, and act 23 would have prevented none of them. proponents of the law might also point to crawford v. marion county, in which the supreme court held that indiana’s interest in preventing fraud was both neutral and sufficiently strong to require rejection of such attacks on the statute in question.244 indiana’s law is similar to that of wisconsin in that both require proof of identification through a photo id. unlike indiana, however, the evidence of fraud in wisconsin is far from strong, and act 23’s implicit requirement that a select class of citizens pay some amount in order to vote leans more in the direction of its functioning as the equivalent of a poll tax, in violation of the twenty-fourth amendment. on their faces, the laws (and to a certain extent the burdens) appear similar, but there are key differences that would likely lead the court to a different conclusion regarding act 23 than that reached in crawford. the first difference is that indiana’s law allowed citizens who could in no way afford the costs associated with voting to still vote successfully. under the law’s indigent provision, each destitute voter had the option of casting a ballot and then executing an affidavit with the clerk explaining his or her situation.245 upon completion of such an affidavit, the vote would be counted without any monetary costs to the voter. wisconsin’s act 23 includes no such provision. another difference is that the court is unlikely to apply the same heavy emphasis on the burden of proof to act 23 that it applied to indiana’s law. the court determined that the petitioners in the indiana case bore a heavy burden of persuasion because they were waging a broad attack on the law.246 the petitioners ultimately failed to produce enough evidence to convince the court that the law imposed a severe burden on voters, so the court concluded that only a limited burden existed that did not require narrow tailoring or a compelling interest.247 the facts are not the same in wisconsin because act 23 does not include an indigent provision and because the nearly one million poor and elderly voters affected by its requirements will 241 see the truth about “voter fraud”, supra note 224. 242 id. 243 id. 244 crawford v. marion county, 553 u.s. 181, 204 (2008). justice stevens stated “that application of the statute to the vast majority of indiana voters was amply justified by the valid interest in protecting the integrity and reliability of the electoral process.” id. 245 see ind. code ann. §§ 3–11.7–5–1, 3–11.7–5–2.5(c) (west 2006). 246 crawford, 553 u.s. at 200. 247 id. at 200–04. 2013 columbia journal of race and law 145 certainly be able to provide enough evidentiary examples to convince a court that the law imposes severe injuries. justice stevens himself differentiated between the severe burdens that might be imposed on certain voters and the relative inconveniences that would be placed on others.248 the differences between the burdens in indiana and those in wisconsin are not important; what matters is the application of the two laws and how those burdens become severe for hundreds of thousands of affected people in wisconsin and the lack of an indigent provision that would otherwise allow them to vote. in crawford, the court said that trips to the dmv and the gathering of appropriate documents would not be a substantial burden for many, but that they might be heavier for others due to economic or other personal limitations.249 the difference between the case in indiana and that in wisconsin is that the crawford court determined that any significant burden would be placed only on a limited number of people.250 however, variances in the two laws and, possibly, in the demography of the two states, will cause the number of people affected by the “inconveniences” stated in crawford to be numerous; the effect will be that of a substantial burden for many because the hundreds of thousands of affected potential voters will either fall into the economic pool that cannot afford to obtain any form of identification or the age pool that has neither proper documentation nor the means to acquire it. act 23 does not stand up to the burden analysis of the burdick test because it is not necessary and narrowly tailored enough to justify the devastating equal protection injuries it inflicts on the voting population. the act is also unconstitutional because its requirements effectively impose a poll tax on citizens without photo identification and without the necessary supporting documentation, in violation of the twenty-fourth amendment. act 23 also violates the wisconsin constitution because it excludes voters from the suffrage process and adds qualifications to the definition of an elector in a way that the state’s article on suffrage does not prescribe. act 23 is thus invalid on several grounds and will serve only to prevent qualified voters from exercising their rights. it should therefore be struck down. v. conclusion the united states is a fairly young nation, but it is one with a rich history and a great deal of promise. the cliché that history repeats itself and that the collective “we” should learn from it and not let the worst of it happen again, while overused, is still an axiom to be followed. laws such as wisconsin’s act 23 come dangerously close to allowing some of the worst parts of our history to rise again. voting rights in this country, as they exist today, are the result of a complicated past. the country initially allowed only wealthy white men to participate in the electoral process. later amendments to the constitution allowed white women, and, theoretically, african americans to enjoy suffrage rights, but the sanctioning of suffrage laws affecting only the latter soon thwarted these rights. the rationality and fairness of voting laws finally began to even out in the middle of the twentieth century, but it appears that certain states are again seeking to displace the suffrage rights of specific groups of voters. this note is not intended to be political in its scope, but one cannot help but notice the relationship between the passage of strict voter identification requirements in the states and the political party in power at the time. act 23 was not passed in wisconsin until there was a republican governor and a republican-run legislature. in fact, when act 23 was passed in 2011, the state assembly adopted 248 id. at 199–200. 249 id. 250 id. at 199. 146 road to the poll vol. 3:1 only one out of 376 bill amendments proposed by democrats.251 in 2008, the following groups voted democrat: seventy-three percent of families making less than $15,000 per year; sixty-three percent of those who did not graduate from high school; fifty-four percent of voters in the midwest; sixty-six percent of voters under thirty years old; sixty-seven percent of hispanic voters; and ninety-five percent of black and african american voters.252 these happen to be the same groups whose members are most likely not to possess a proper photo id and to be unable to afford the costs associated with retrieving one.253 the reader can draw his or her own conclusions about this happenstance. act 23 places extraordinary burdens on those listed above who seek to exercise their constitutional right to vote. the act places the poor, many of whom are african american, into a position of marginalization that is at odds with our historical struggle against racial inequality. potentially hundreds of thousands of eligible and registered voters may find themselves in a situation in which, unable to obtain an appropriate photo id, they will be unable to cast their ballots. this would be a tragedy and a return to a period in history that should not be revisited. 251 wisconsin rep. brett hulsey says only one of 376 bill amendments proposed by a democrat was adopted by gopcontrolled assembly, politifact, http://www.politifact.com/wisconsin/statements/2011/sep/11/bretthulsey/wisconsin-rep-brett-hulsey-says-only-one-376-bill-/ (last visited dec. 2, 2012). 252 election results 2008, n.y. times, http://elections.nytimes.com/2008/results/president/national-exitpolls.html (last visited dec. 2, 2012). 253 see why millions of americans have no government id, supra note 194. microsoft word 1 cjrl waldeck f18.docx a norms-based approach to sustaining integration sarah e. waldeck0f * headlines about racial polarization and a country divided obscure an important present opportunity: racial integration initiated by local community choice. these local contexts have national significance in light of census data showing that american suburbs and exurbs are perfectly positioned to integrate and can do so through local choice irrespective of what occurs at the federal level. however, integration is not preordained. census data shows segregation decreasing within some large cities but increasing in metropolitan areas as a whole. when blacks move to the suburbs, whites flee to locations ever farther from the city’s center. suburbs and exurbs, not cities, are the new ground zero for integration efforts. the stakes are high: ferguson, missouri, home of the 2014 protests, is a suburb from which sixty-two percent of the white population fled between 1990 and 2010. using empirical fieldwork from a chicago suburb that successfully integrated in the 1970’s, this article sheds light on how norms and other behavioral phenomena fuel the dynamics of integration. when a community deliberately chooses to integrate, it generates norms that foster and sustain integration. as a norm weaves itself into the fabric of the community, it becomes even more powerful than law. the norm helps ensure that individuals within the community make integrationaffirming choices, even when those choices are costly. when the norm is visible to those outside the community, it attracts new members who value integration and are likely to support the * distinguished visiting scholar in residence, loyola-chicago school of law and professor of law and robert diab scholar, seton hall university. i appreciate the help i received from rachel godsil, jordan paradise, alan raphael, jack ashton, jesse garza, and caitlyn basinski, as well as from those i spoke with in the village of oak park. i also benefitted from a loyolachicago school of law faculty colloquium and panels at conferences sponsored by the law and society association and the association of law, property and society, as well as from the editorial suggestions of the columbia journal of race and law. i owe particular thanks to my late colleague, marc poirier. 2 columbia journal of race and law [vol. 9:1 policies that foster it. once suburbs and exurbs opt for integration instead of white flight, norms and other mainstays of behavioral law and economics allow integration to perpetuate. i. introduction ................................................................. 2 ii. deliberate integration amid seemingly intractable segregation ............................................ 7 a. living apart ............................................................... 7 b. one municipality’s deliberate integration ............. 11 iii. the sign ban ................................................................ 17 iv. order despite the law .............................................. 22 a. method ..................................................................... 23 b. unawareness of the constitutional right ............... 24 1. the internet ....................................................... 26 2. the village ......................................................... 28 3. local resources .................................................. 29 c. the prospective seller’s norm-based incentives ... 29 d. intrepid sellers and feedback loops ...................... 31 e. realtor non-use of signs ........................................ 33 1. financial gain ................................................... 33 2. necessary cooperation ...................................... 36 3. respect for the ban’s purpose ........................... 37 4. relationship with the village ............................ 38 v. the village .................................................................. 39 a. integration as a cultural resource ......................... 40 b. a source community manages “the commons” ..... 43 vi. drawing on other communities’ successes ........... 48 vii. conclusion .................................................................. 52 i. introduction “discrimination and segregation have long permeated much of american life; they now threaten the future of every american. this deepening racial division is not inevitable. the movement apart can be reversed. choice is still possible.” if law review articles had an interactive component, this one would start with a trivia question: in what year did no. 1:1] sustaining integration 3 a presidential commission issue the above warning about segregation’s dangers? sometime in the last few years would be a good guess considering that blacks and whites in the united states still mostly live apart, not together. it also remains true that “one’s neighborhood largely determines one’s achievements.”1 neighborhoods typically dictate the quality of schools, exposure to positive role models, crime and environmental hazards, and employment opportunities.2 today, different neighborhoods often still mean different life outcomes for blacks and whites. this is why housing discrimination continues to be a “badge and incident of slavery.”3 but while it would be reasonable to suppose that this is a recent government warning, the right answer is 1968. these are the words of the kerner commission, which president johnson appointed to investigate the unrest and violence that broke out in poor black urban neighborhoods during the 1960’s.4 although the commission’s warning about segregation is as salient now as it was in 1968,5 so is the commission’s ultimate conclusion—choice is still possible. 1 abraham bell & gideon parchomovsky, the integration game, 100 colum. l. rev. 1965, 1966 (2000). 2 works discussing the harms of segregation include douglas s. massey & nancy a. denton, american apartheid: segregation and the making of the american underclass (1993); gary orfield et al., dismantling desegregation: the quiet reversal of brown v. board of education (1996); and richard rothstein, the color of law (2017). on the environmental harms flowing from segregation, see rachel d. godsil, environmental justice and the integration ideal, 49 n.y.l. sch. l. rev. 1109 (2004). 3 jones v. alfred h. mayer co., 392 u.s. 409, 440–41 (1968) (discussing how the thirteenth amendment gives congress authority to prohibit housing discrimination). 4 the nat’l advisory comm’n on civil disorders, report of the national advisory commission on civil disorders 1 (1968). 5 this decade has seen significant unrest in cities across the country, including milwaukee, charlotte, baltimore, and ferguson. in each of these cities, violence broke out in connection with police shootings of black men or black men dying in police custody. see, e.g., tonya maxwell & melanie eversley, n.c. gov. declares state of emergency following violent charlotte protests, usa today (sept. 21, 2016), https://www.usatoday.com/story/news /nation/2016/09/21/charlotte-police-man-killed-officers-holding-gun-notbook/90774106/ [http://perma.cc/z3te-lms8]; archer parquette, sherman park riot: one year later, milwaukee mag. (aug. 8, 2017), https://www. 4 columbia journal of race and law [vol. 9:1 this article is about the norms that emerge once a municipality chooses to integrate. its message is a hopeful one: once a community chooses integration, the policies that help create integration become community norms. as norms weave themselves into the fabric of the community, they become a tour de force even more powerful than law. the norms function to help ensure that individuals within the community make integration-affirming choices, even when that choice comes at a cost. the norms also signal to the world at large that the community prioritizes integration, thereby attracting new members who similarly value integration and are likely to support the policies that sustain it. the norms, and the integration they foster, self-replicate. integration—not segregation—is what perpetuates. behavioral law and economics, relying heavily on the work of social scientists, has demonstrated how social norms and mental shortcuts profoundly affect how people think about and interact with the law. much of the work in the field is aimed at describing how a particular norm-based theory, mental shortcut, or bias accounts for a multitude of behaviors. heuristics and herd mentality, external and internal normbased sanctions, lack of knowledge about the law, feedback loops, and signaling are all mainstays of the field.6 this article takes the opposite tack and demonstrates how a multitude of behavioral phenomena can come together to make the individuals within a community exhibit the same integrationaffirming behavior. it does so by exploring how, in the village milwaukeemag.com/sherman-park-riot-one-year-later/ [http://perma.cc/ s9xe-88t6]; christina tkacik, remembering the baltimore riots after freddie gray’s death, 3 years later, the balt. sun (apr. 27, 2018), http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ciriotsthree-years-later-20180426-story.html [http://perma.cc/ky82-yqbq]; larry buchanan et al., what happened in ferguson?, n.y. times (aug. 10, 2015), https://www.nytimes.com/interactive/2014/08/13/us/ferguson-missouri-townunder-siege-after-police-shooting.html [http://perma.cc/l2me-wl75]. 6 see, e.g., eric a. posner, law and social norms 26 (2000) (setting forth a norms-as-signals theory); richard h. thaler & cass sunstein, nudge: improving decisions about health, wealth, and happiness (2008) (describing how to exploit human biases to create a “choice architecture” that nudges people towards good choices); see also daniel m. kahan, gentle nudges vs. hard shoves: solving the sticky norms problem, 67 u. chi. l. rev. 607 (2000) (setting forth a prescription for how to avoid reinforcing norms that the law is intended to change). no. 1:1] sustaining integration 5 of oak park, illinois, a norm about the non-use of residential for sale signs has eclipsed a first amendment right.7 oak park is a municipality currently unlike most others—it is racially integrated. as black people moved west from chicago’s inner city in the 1970’s, the village decided that it could prevent white flight by deliberately fostering integration. the village successfully sought to have blacks and whites live together on the same blocks instead of in segregated clusters within the municipality. today, integration is the village’s most defining characteristic and a cultural value that binds it together. oak park’s integration resulted from a deliberate and multifaceted strategy. one component was a ban on residential for sale signs. like other municipalities around the country that passed similar ordinances, oak park sought to disarm unscrupulous realtors who used a proliferation of for sale signs to signal to whites that it was in their financial best interest to flee as black families moved into a neighborhood. then, in 1977, a unanimous supreme court in linmark associates v. township of willingboro held that for sale sign bans unconstitutionally interfered with the flow of legitimate and truthful commercial information.8 around the country, homeowners and realtors returned to using signs as a quick and easy means of indicating that a property was on the market. but in the years since linmark, most homeowners in the village of oak park have not exercised their constitutional right to use for sale signs. when the occasional for sale sign does go up, it quickly comes down. in oak park, it is almost as though linmark never happened. instead, the village sticks with the integrationaffirming sign ban that the community adopted back in 1972. unlike in the 1970’s, however, the sight of for sale signs would not spur whites to move out of oak park today. but the sign ban still functions as a symbol of integration, so that newcomers who value diversity replace like-minded residents who move out of the village. the absence of for sale signs makes the village visibly different from surrounding communities. any inquiry about the lack of signs is likely to prompt a response that mentions the village’s commitment 7 this article uses “oak park” and “the village” interchangeably. 8 linmark assocs. v. township of willingboro, 431 u.s. 85 (1977). 6 columbia journal of race and law [vol. 9:1 to integration. this response will resonate with prospective residents who value diversity. once they move to the village, these newcomers are likely to make choices that help perpetuate integration. the norm that restrains the use of for sale signs helps the village avoid a classic tragedy of the commons in which people acting according to their self-interest destroy a shared resource. similar to environmental resources such as air and water, integration and other cultural resources are readily degraded unless individuals exercise restraint. this article draws from empirical fieldwork to explain why the village’s residential sign ban has endured. this rich and nuanced story demonstrates how a lack of knowledge about the law, powerful norm-based incentives, a heavy municipal hand, and other factors can converge to make the law—here, the constitutional right to commercial speech—largely beside the point. the oak park example is important because the united states is in the midst of an opportunity to integrate. census data shows that neighborhoods within cities are becoming less segregated, but suburbs and communities on the metropolitan fringe are becoming even more segregated. as segregation declines within large cities, the united states can make real inroads with integration if suburbs and exurbs deliberately choose to integrate instead of simply succumbing to segregation. once communities make this deliberate choice, norms and other behavioral phenomena will help integration endure. this article begins by discussing current segregation patterns and using the contemporary example of ferguson, missouri, to emphasize integration’s urgency. part ii returns to the 1970’s and discusses the village of oak park’s multifaceted effort to prevent white flight and to ensure that black people both had the opportunity and would choose to live in every part of the village. part iii turns to oak park’s passage of its sign ban and the linmark decision that the supreme court handed down five years later. part iv employs empirical research to understand why homeowners and realtors in the village restrain their use of signs post-linmark. part v draws on cultural property scholarship and explains how a norm about the non-use of for sale signs helps preserve integration and avoid a tragedy of the commons. part vi argues that unraveling segregation is a surmountable task. no. 1:1] sustaining integration 7 ii. deliberate integration amid seemingly intractable segregation william faulkner famously wrote, “the past is never dead. it’s not even the past.”9 and so it has transpired with residential segregation in the united states. segregation between blacks and whites is particularly entrenched, with blacks remaining highly segregated from whites.10 a. living apart richard rothstein has painstakingly documented the dizzying array of governmental actions that created blackwhite residential segregation. black-white segregation was baked into new deal public housing, with the federal government constructing racially separate housing in cities where segregation had not yet taken root instead of scattering integrated developments throughout the community.11 the federal housing authority (fha), created in 1934 to make homeownership attainable for workingand middle-class americans, refused to insure loans in racially-mixed neighborhoods or in white neighborhoods that might soon integrate. in community after community, the fha refused to guarantee loans for blacks or for whites who might lease to blacks.12 federal and state highway authorities placed urban interstates in locations that required the leveling of black communities, thereby displacing black residents and forcing them to move into urban ghettos.13 municipalities adopted exclusionary zoning laws, creating racially exclusive suburbs to which whites could flee.14 state courts enforced restrictive covenants that forbade home sales to blacks, preventing black 9 william faulkner, requiem for a nun 92 (1951). 10 daniel t. lichter et al., toward a new macro-segregation? decomposing segregation within and between metropolitan cities and suburbs, am. soc. rev. 843, 868 (2015). 11 rothstein, supra note 2, at 17–37 (discussing history of public housing in the united states). 12 id. at 59–75 (documenting how the federal housing authority discriminated against black people). 13 id. at 126–31 (detailing the placement of interstates and the resulting destruction of black communities). 14 id. at 39–57 (explaining racial zoning). 8 columbia journal of race and law [vol. 9:1 people from integrating into communities they could afford.15 state real estate boards licensed professional realtors who steered blacks away from places where whites lived.16 in these and other ways, federal and state governments wove blackwhite residential segregation into american society. this government-created segregation has persisted over time. researchers have traditionally pointed to three reasons why black-white segregation endures: economics, discrimination, and preferences. on average, whites have more income and wealth than blacks, which enables whites to buy homes in neighborhoods that blacks cannot afford.17 some landlords, homeowners, and real estate agents have continued to discriminate against blacks, and thus black people who can afford the same housing as whites are denied access to it.18 personal preference also contributes to segregation, with some whites preferring to live with other whites and some blacks preferring to live with other blacks.19 recent research also suggests that people rely heavily on their social 15 id. at 77–91 (discussing history of court-enforced restrictive covenants). 16 id. at 95–96 (detailing real estate practices that fueled white flight). 17 for an in-depth analysis of how economic factors contribute to segregation, see, e.g., richard d. alba & john r. logan, minority proximity to whites in suburbs: an individual-level analysis of segregation, 98 am. j. soc. 1338 (1993); john r. logan et al., making a place in the metropolis: locational attainment in cities and suburbs, 33 demography 443 (1996); and camille zubrinsky charles, the dynamics of racial residential segregation, 29 ann. rev. soc. 167 (2003). 18 see, e.g., margery austin turner et al., housing discrimination against racial and ethnic minorities 2012 (2013) (summarizing united states department of housing and urban development testing from 1977 to 2010); michael ewens et al., statistical discrimination or prejudice? a large sample field experiment, 96 rev. econ. & stat. 119 (2014) (reporting that landlords who listed apartments on craigslist were less likely to respond to e-mails from senders with african american-sounding names); douglas s. massey & garvey lundy, use of black english and racial discrimination in urban housing markets, 36 urb. aff. rev. 452 (2001) (reporting discrimination against blacks in philadelphia who were responding to newspaper ads about rental units). 19 maria krysan & kyle crowder, cycle of segregation: social processes and residential stratification 151 (2017) (summarizing the traditional view that segregation is driven by peoples’ desire to live near members of their own ethnic group). no. 1:1] sustaining integration 9 networks when deciding where to live.20 a person’s opinion about various housing options is shaped by where the person works, lives, worships, and so forth. because of preexisting segregation, blacks and whites tend to do these activities in different areas. most people are likely to search for housing in places they, their families, or their friends already know. if a white person’s social network is primarily comprised of other white people, most of the information she learns from her network will be about white communities; if a black person’s social network is comprised of other black people, most of the information she gathers during her housing search will be about black communities. while black-white segregation has remained a constant, patterns of segregation have shifted over time. although many large cities continue to have decreasing white populations, micro-segregation (segregation within neighborhoods) has generally decreased over the past several decades while macro-segregation (segregation in metropolitan areas as a whole) has increased.21 in some metropolitan cities, the 1990’s and 2000’s were “decades of extraordinary change” in the racial and ethnic composition of neighborhoods.22 some cities (such as washington, d.c.) experienced significant gentrification, with young, affluent whites returning to the inner city and people of color departing (often because gentrification meant that they could not afford to 20 id. at 41–65 (setting forth the residential sorting perspective). 21 lichter et al., supra note 10, at 851; see also claude s. fischer et al., distinguishing the geographic levels and social dimensions of u.s. metropolitan segregation, 1960–2000, 41 demography 37 (2004) (measuring segregation for the metropolitan united states and finding black-white segregation among suburbs growing during the time period studied); douglas s. massey et al., the changing bases of segregation in the united states, 626 annals am. acad. pol. & soc. sci. 74 (2009) (finding large declines in black-white segregation at the neighborhood level but almost no change in segregation levels across cities, counties, or states); domenico parisi et al., multi-scale residential segregation: black exceptionalism and america’s changing color line, 89 social forces 829 (2011) (attributing forty-eight percent of the segregation measured by their study to macrosegregation). 22 lichter et al., supra note 10, at 846; see also john r. logan & brian j. stults, the persistence of segregation in the 21st metropolis: new findings from the 2010 census 2 (2011), https://s4.ad.brown.edu/ projects/diversity/data/report/report2.pdf [http://perma.cc/kpv9-kp8u]. 10 columbia journal of race and law [vol. 9:1 stay).23 many of these minorities moved outside the city to poorer communities with older housing stock, thereby creating suburbs in which people of color comprise the majority. when demographers zoom in on city neighborhoods in these metropolitan areas, they find less segregation, but when they zoom out to consider a city and all its surrounding areas, they find increasing segregation. this is the pattern relevant to ferguson, missouri, an inner-ring suburb with about 21,000 residents located in the greater st. louis metropolitan area. most americans had never heard of ferguson prior to august 9, 2014, when a police officer shot and killed michael brown, an unarmed black eighteen-year-old. unrest erupted later that night, with 300 police officers responding to reports of gunfire, looting, and arson. as protests continued the next day, swat units and armored vehicles moved into ferguson, and police used tear gas and rubber bullets to try to disperse the crowd. protests continued for the next several days, with violence erupting again on august 15, culminating in the arrests of more than 200 protestors. that same day, missouri’s governor declared a state of emergency and deployed the national guard. some amount of calm returned to ferguson on august 20, and the governor recalled the national guard the next day.24 however, protests broke out again on november 24 when a grand jury decided not to indict the officer who shot michael brown. angry citizens fired guns, looted businesses, and set cars and buildings on fire.25 americans old enough to have witnessed the urban unrest and violence of the 1960’s had a sense of déjà vu. ferguson is a suburb that has undergone rapid racial demographic change. between 1990 and 2010, the number of blacks who made the suburb their home increased from 25.1 to 67.4% of the city’s total population. during the same years, 23 lichter et al., supra note 10, at 846. 24 scott neuman, ferguson timeline: grief, anger and tension, npr, (nov. 24, 2014), https://www.npr.org/sections/thetwo-way/2014/11/24/3641 03735/ferguson-timeline-grief-anger-and-tension [http://perma.cc/83hk-h 42n]. 25 monica davey & julie bosman, protests flare after ferguson police officer is not indicted, n.y. times, (nov. 24, 2014), https://www.ny times.com/2014/11/25/us/ferguson-darren-wilson-shooting-michael-browngrand-jury.html [http://perma.cc/w4sz-7r95]. no. 1:1] sustaining integration 11 the size of ferguson’s white population dropped by more than sixty-two percent.26 demographic mapping of the greater st. louis area over this same time period shows a familiar pattern: blacks moving out of the highly-segregated city of st. louis and into surrounding communities and whites moving out of the communities in which blacks settle.27 in ferguson, as in so many other places, the increasing number of black residents did not translate into a corresponding increase in black political power. in 2014, the mayor and police chief were white, as were five of the six city council members and all but three of the city’s fifty-three police officers.28 the shooting of michael brown, and the unrest that followed, have “become symptomatic of racial divisions and conflict in rapidly changing suburban communities.”29 one of the many tragedies of ferguson is that these racial divisions and conflicts were avoidable. simply put, the suburb did not have to undergo rapid racial change; it could have integrated instead of re-segregating from white to black. whites did not have to flee once blacks began to call ferguson home. to echo the kerner commission, choice was still possible. b. one municipality’s deliberate integration back in the 1970’s, the village of oak park, illinois, made the deliberate choice to integrate. it did so in the shadow of chicago, a city that is consistently at the top or near the top of the list of america’s most segregated cites.30 in the mid 26 lichter et al., supra note 10, at 848. 27 colin gordon, mapping decline: st. louis and the american city, u. iowa libr. http://mappingdecline.lib.uiowa.edu/map/ [http://perma .cc/t9z5-7ned] (featuring interactive maps showing increases and decreases in black and white populations from 1940 to 2010). 28 the death of michael brown, n.y. times (aug. 12, 2014), https: //www.nytimes.com/2014/08/13/opinion/racial-history-behind-the-fergusonprotests.html [http://perma.cc/hw8l-s6z3]. 29 lichter et al., supra note 10, at 848. 30 see, e.g., bob goldsborough, chicago is the 13th most segregated metro area in u.s., study finds, chi. trib. (may 25, 2018), http://www.chi cagotribune.com/classified/realestate/ct-re-0603-housing-segregation-2018 0525-story.html# [http://perma.cc/e5vx-w9ta]; lichter et al., supra note 10, at 857 (“[b]lack-[w]hite segregation was highest in the chicago metropolitan area.”); tami luhby, chicago: america’s most segregated city, cnn (jan. 5, 2016), https://money.cnn.com/2016/01/05/news/economy 12 columbia journal of race and law [vol. 9:1 1960’s, martin luther king identified chicago as “the most ‘ghettoized’ city in america, the symbol and capital of segregation in the north.”31 one civil rights organizer explained, chicago’s system of separation of the races differs from mississippi’s only in degree . . . . in mississippi, the ku klux klan burns churches. [in 1964] in chicago, three houses were burned to the ground because they were purchased by [b]lack citizens.32 when king came to chicago in 1966 to draw attention to northern housing segregation,33 his reception revealed the depth of white prejudice and hatred. in one all-white neighborhood, king was met by crowds carrying signs proclaiming “n****r go home” and chants of “i’d love to be an alabama trooper, and that is what i’d truly like to be, because if i were an alabama trooper, i could shoot n*****rs, one, two, three.”34 in a different march through the same neighborhood a couple of weeks later, [w]hen king arrived and alighted from his car, he was struck on the head by a rock the size of a fist. missiles—bricks, bottles, firecrackers, a knife—continued to fly as the march made its way to [a local real estate office] amid shouts of “get the witch doctor,” “we want king,” and /chicago-segregated/index.html [http://perma.cc/d32e-h24k]; nate silver, the most diverse cities are often the most segregated, chi. trib. (may 1, 2015), http://www.chicagotribune.com/classified/realestate/ct-re-0603-hous ing-segregation-20180525-story.html [http://perma.cc/e5vx-w9ta] (naming chicago “the most segregated city in the country” according to its integrationsegregation index). 31 stephen b. oates, let the trumpet sound: the life of martin luther king, jr. 416 (1982). 32 james r. ralph, jr., northern protest: martin luther king, jr., chicago, and the civil rights movement 99–100 (1993). 33 for succinct discussions of king’s reasons for coming to chicago, see katherine gonsalves, segregated housing: martin luther king to cabrini green, 15 race poverty & env’t 17 (2008), and ronald a. shaw, a final push for national legislation: the chicago freedom movement, 94 j. ill. st. hist. soc’y 304 (1998). 34 alan b. anderson & george w. pickering, confronting the color line: the broken promise of the civil rights movement in chicago 223 (1986). no. 1:1] sustaining integration 13 “kill him, kill him.” king said, “i have never seen such hostility and hatred anywhere in my life, even in selma.”35 king’s presence in chicago laid bare many whites’ determination to live apart from blacks. this meant that whites kept blacks out of white neighborhoods or moved elsewhere once blacks arrived. in the 1960’s, blacks who were seeking to escape chicago’s inner city began to move westward toward oak park. the village’s eastern border runs along the western chicago city limit so that the village is literally across the street from the chicago neighborhood of austin. in the 1950’s, a person walking across austin boulevard—the major thoroughfare separating oak park from austin—would have noticed almost no meaningful distinction between the two neighborhoods. both were mostly white and middle class. this began to change in the early 1960’s. by 1970, austin was about one-third black. from that point on, there was “massive [w]hite flight,” and “the city witnessed classic block-by-block re-segregation.”36 by 1980, austin was threefourths african american; by 1990 and 2000, austin was ninety percent african american; and in 2010, austin was eightyseven percent african american, nine percent hispanic or latino, and four percent white.37 in 2010, the austin census tracts along oak park’s eastern border were as high as ninetyseven percent african american.38 as austin began to re-segregate from white to black in the 1960’s, oak park became acutely aware that blacks were likely to continue to move west across austin boulevard and into oak park. whites began to leave and the “[v]illage 35 id. at 228. 36 evan mckenzie & jay ruby, reconsidering the oak park strategy: the conundrums of integration 8 (apr. 25, 2002) (unpublished manuscript), https://astro.temple.edu/~ruby/opp/3qrpt02/gfinalversion.pdf [http://perma.cc/m5u5-eh7g]. 37 id.; overview of austin, chicago, illinois (neighborhood), stat. atlas, https://statisticalatlas.com/neighborhood/illinois/chicago/austin/over view [http://perma.cc/z4je-5h4l]. 38 race and ethnicity in tract 252000, cook county, illinois, stat. atlas, https://statisticalatlas.com/tract/illinois/cook-county/252000/raceand-ethnicity [https://perma.cc/j79g-l4wd]. 14 columbia journal of race and law [vol. 9:1 became genuinely concerned that oak park would follow the path of austin.”39 government officials and community leaders decided that oak park’s best strategy was not to try to exclude blacks. rather, oak park would market itself as a neighborhood where integrated housing thrived.40 this meant that whites had to be encouraged to stay and that blacks had to have access to and then choose housing options throughout the entire village instead of living on blocks comprised only of black families. for some of oak park’s leaders, the deliberate choice to integrate reflected concern for black people who were trying to escape the inner city. however, the choice was primarily pragmatic; oak park knew that, absent integration, whites would flee as black people moved into the village. as between white flight and integration, oak park decided that integration was preferable. sociologist carol goodwin has identified the characteristics that positioned oak park to fight white flight, particularly as compared to nearby austin. in 1966, project open communities (a precursor to king’s chicago movement), conducted real estate testing that demonstrated that oak park realtors were discriminating against blacks, and then marched in oak park every saturday from mid-may to july.41 in contrast to many other marches in the chicago area, the marches in oak park were peaceful, and some local white residents joined in. this created the sense among many oak parkers that the village was an “open place, however far from accurate that might have been.”42 in addition, oak park had a strong degree of local community control,43 particularly as compared with austin, which was controlled by the city of chicago. this local control “put in the hands of local elites the means of 39 mckenzie & ruby, supra note 36, at 11. 40 see sources cited infra notes 156–160 and accompanying text (discussing the village’s efforts to re-brand itself). 41 see sources cited infra notes 156–160 and accompanying text (discussing the village’s efforts to re-brand itself). 42 carole goodwin, the oak park strategy: community control of racial change 205 (1979). goodwin was a contemporary observer of how oak park and austin responded when african americans moved west from chicago’s inner city. her book provides an exhaustive account of why oak park was more inclined to integrate and was better-positioned to exert control over racial change. 43 id. at 207. no. 1:1] sustaining integration 15 influencing the community’s fate.”44 oak park also had a strong tradition of activism and volunteerism that became “an ample reservoir of experience, example, and useful outside contacts.”45 these characteristics enabled oak park to launch a full-court press that sought to prevent white flight and to make living throughout the community feasible for and attractive to black people. oak park’s integration strategies were multifaceted and comprehensive. on the legal front, the village passed a fair housing act that prohibited racial steering and discriminatory lending.46 it also prohibited real estate brokers from soliciting property owners who had registered with the village47 and banned residential for sale signs to prevent brokers from using them to signal that homeowners were fleeing the neighborhood.48 to address fears that integration would lead to lower home prices, the village offered insurance that protected homeowners against declines in market value below the purchase price.49 it used its fifteen-member community relations commission to coordinate a “variety of auxiliary tactics aimed at manipulating a stably integrated community.”50 the village recognized that because tenants can leave more easily than homeowners, blocks with apartment buildings were most vulnerable to white flight. the village doubled its bets by committing substantial resources to areas with apartments, particularly those near the austin border. this included relocating the village hall to a new civic center in southeast oak park,51 and significantly increasing the size of the police force and allotting more patrols to areas near the chicago border.52 oak park reorganized its school district by creating catchment areas that would help ensure long-term 44 id. at 208. 45 id. at 205–06. 46 oak park, ill., village code, § 13-1-1 (1968). 47 id. 48 see infra part iii. 49 the insurance program was launched in 1978, with ninety-nine people enrolling in the first four months and 158 enrolling in total. no claims were ever made and only ten houses renewed their policies. for more information about how the program functioned and what was necessary to make a claim, see mckenzie & ruby, supra note 36, at 16. 50 goodwin, supra note 42, at 149. 51 id. at 124. 52 id. at 184. 16 columbia journal of race and law [vol. 9:1 racial balance between the schools even if a disproportionate number of black families lived near the austin border.53 it also made recruiting minority teachers a priority and invested heavily in the schools closest to austin.54 it supported a volunteer housing center that provided housing referral services “aimed at promoting a dispersed pattern of racial integration throughout the [v]illage.”55 the village also embarked on an advertising campaign to attract whites who wanted to live in integrated communities.56 in sum, the village sought not only to prevent housing discrimination and corrosive real estate broker tactics, but also to actively promote diverse neighborhoods and put oak park onto the radar screen of prospective residents who would be attracted to the prospect of a racially integrated village—all critical to interrupting what sociologists maria krysan and kyle crowder have dubbed “the cycle of segregation.”57 the village’s efforts were astonishingly successful, with the “pattern [of re-segregation] . . . leap[ing] over oak park to other suburbs farther west . . . which re-segregated in a relatively short time.”58 instead of re-segregating, the village gradually integrated at both the macro and micro level. oak park’s black population grew from less than 1% in 1970; to 11% in 1980; to 19% in 1990; and to 20% in 2000.59 as of 2010, oak park was 21% african american; 68% white; 7% hispanic or latino; and 5% asian.60 at the micro level, there is some clustering of black residents in oak park’s southeast corner 53 id. at 93–94. 54 id. at 92–93. 55 id. at 152. 56 see sources cited infra notes 156–160 and accompanying text. 57 krysan & crowder, supra note 19, at 221, 226 (discussing the importance of local government support for diverse communities and various strategies to make homeseekers consider these communities). 58 mckenzie & ruby, supra note 36, at 7. 59 id. 60 overview of oak park, illinois (village), stat. atlas, https:// statisticalatlas.com/place/illinois/oak-park/overview [http://perma.cc/gr8 n-peez]. by way of contrast, the suburb immediately north of oak park (elmwood park) is 85% white, 2% black, 2% asian, and 20% latino/hispanic. see https://factfinder.census.gov [https://perma.cc/k9nq-b35w] (search in search bar for “elmwood park village, illinois”; then follow “race and hispanic or latino origin” hyperlink under “2010 census”) (last visited dec. 28, 2018). no. 1:1] sustaining integration 17 and fewer black residents in its northwest corner, the expensive “estate section.” nonetheless, as recently as 2010, no census tract within the village was more than 76% white or more than 36% african american.61 today, this degree of integration makes the racial demographics of oak park “stand out so much” from almost every other place in the united states.62 iii. the sign ban though oak park’s ban on residential for sale signs was just one piece of its integration efforts, village leaders perceived the sign ban as critical because real estate brokers were helping to fuel austin’s re-segregation. real estate agents relied on “blockbusting” and “panic peddling,” tactics in which brokers used the threat of a racially changing neighborhood to convince white homeowners to sell at below-market rates and then made a profit by reselling at a higher price to nonwhite purchasers. contemporary accounts from that period accentuate the insidiousness of these practices. in 1971, the chicago tribune ran a series of articles about neighborhood change in chicago. brokers working in austin were blunt about their tactics: we don’t care if the [w]hites run all the way to hong kong, as long as they run . . . . i go where the money is. i’m a money-oriented guy. it’s a good business for us when they’re frightened.63 chicago avenue is the demarcation line right now . . . . but one of these days, some [b]lack will move north of chicago avenue. 61 race and ethnicity in tract 812100, cook county, illinois, stat. atlas, https://statisticalatlas.com/tract/illinois/cook-county/81210 0/race-and-ethnicity [https://perma.cc/ec4w-5x9m]. 62 the great melting, economist (jan. 9. 2016), https://www.econ omist.com/international/2016/01/09/the-great-melting [https://perma.cc/2r hf-upl3] (quoting professor maria krysan of the university of illinoischicago). 63 goodwin, supra note 42, at 68. 18 columbia journal of race and law [vol. 9:1 when one of them jumps, that’s the green light. then it’s open season.64 open season meant myriad tactics that made white homeowners believe that a quick exit from austin was in their financial and personal best interest. the tactics included doorto-door and telephone solicitations; dissemination of leaflets saying minorities had purchased property nearby, that schools were going to change, and that effective policing was no longer possible; phone calls in which the caller would apologize for a misdial and then indicate he was trying to reach “the [b]lack family who had just moved in”; and obtaining numerous listings and then using for sale signs to indicate that a neighborhood was changing.65 brokers used for sale signs to signal that blacks were moving in and whites were moving out, and that any remaining whites who wanted to salvage the values of their homes should get out now. one austin resident, who purchased his home in 1951 and sold it in 1969 for less than he paid, explained that “there were many ‘for sale’ signs in the area, perhaps one or two per block, for six months before he sold; and that the signs frightened him because he thought the area was going to change overnight.”66 one man recounted that there were as many as ten for sale signs in a single block of forty homes.67 oak park initially hoped that local realtors simply would agree not to use residential for sale signs. in 1971, oak park’s community relations commission68 asked the local real estate board to formulate a voluntary plan for limiting signage. the board flatly refused on the grounds that for sale signs were part of the profession and a fundamental good marketing technique.69 the discussion was heated enough that it “almost 64 id. 65 city of chicago v. prus, 453 n.e.2d 776, 779 (ill. app. ct. 1983) (discussing the broker techniques that led the city of chicago to ban residential for sale signs). 66 id. at 780–81. 67 id. at 780. 68 the community relations commission was a fifteen-member body created in 1963 to address racial issues in the village. goodwin, supra note 42, at 149. 69 id. at 193–94. no. 1:1] sustaining integration 19 led to a breakdown in the amicable relations between the realtors and the community relations commission.”70 with realtors refusing to voluntarily limit the use of for sale signs, in 1972 the village passed an ordinance stating that [i]t shall, therefore, be unlawful for any person to construct, place, maintain or install a “for sale”, “sold” or “for rent” sign on any property developed for residential use in the village. the term “for sale” sign shall include signs carrying the following or similar words: “open house” or “open for inspection” and shall include any other devices placed on the property to indicate that the property is for sale.71 other portions of the ordinance allowed “open house” signs on sundays for no more than four consecutive hours72 and permitted for sale signs for eighteen months following the issuance of an occupancy permit for new construction or following a condominium conversion.73 the ordinance specifically noted that for sale signs tend to promote unfair housing practices.74 with the passage of the ordinance, realtors stopped using for sale signs and the village concentrated on other components of its integration efforts. then, in 1977, the united states supreme court decided linmark associates v. township of willingboro.75 in linmark, the court struck down an ordinance prohibiting the posting of residential for sale signs. like oak park, willingboro, new jersey, adopted its ordinance in an effort to stem the flight of white homeowners from the community.76 the court noted the “vital” importance of promoting stable, racially integrated housing but ruled that the ordinance did not simply restrict the time, place, or manner of speech. instead, willingboro had “proscribed particular 70 id. at 212. 71 oak park, ill., village code, § 13-2-3(b)(5) (2018) (effective 1972). 72 id. § 13-2-3.1. 73 id. § 13-2-3(b)(5). 74 id. § 13-2-3(a). 75 linmark assocs. v. township of willingboro, 431 u.s. 85 (1977). 76 id. at 88. 20 columbia journal of race and law [vol. 9:1 types of signs based on their content.”77 this content was “of vital interest to willingboro residents, since it may bear on one of the most important decisions they have a right to make: where to live and raise their families.”78 the ordinance therefore unconstitutionally interfered with the flow of legitimate and truthful commercial information. willingboro could promote racially integrated housing, but it could not ban residential for sale signs. linmark set the stage for courts across the country to strike down ordinances banning residential for sale signs. one such case was particularly close to home for oak park. in 1971, also in response to blockbusting and panic peddling, the city of chicago prohibited residential for sale signs in certain parts of the city—including in austin, oak park’s neighbor.79 in 1983, an illinois appellate court held that “only the existence of an emergency situation could justify the use of a ban, that is, where the situation is such that the alternative remedy of public education and discussion is not viable.”80 the court concluded that chicago was not facing such an emergency81 and further characterized the ban as providing “at best ineffective and remote support” for chicago’s “admittedly substantial interest in promoting racially integrated neighborhoods.”82 chicago’s ordinance, the illinois court held, was unconstitutional under the principles set forth in linmark. similar litigation has occurred throughout the united states. in some jurisdictions, litigation yielded cases in which courts deemed sign bans unconstitutional.83 in other jurisdictions, the mere filing of a suit prompted a quick settlement in which the municipality admitted its ordinance was unconstitutional.84 regardless of how far the case actually pro 77 id. at 94. 78 id. at 96. 79 chi., ill., mun. code § 198.7b(4)(h) (1974). 80 city of chicago v. prus, 453 n.e.2d 776, 787 (ill. app. ct. 1983). 81 id. at 791. 82 id. at 790. 83 see, e.g., cleveland area bd. of realtors v. city of euclid, 88 f.3d 382 (6th cir. 1996) (striking down ordinance requiring that any for sale sign in residential areas be placed in a window). 84 see, e.g., greater phila. ass’n of realtors v. city of philadelphia, no. 2:00-cv-01476 (e.d. pa. apr. 28, 2000). no. 1:1] sustaining integration 21 ceeded, the end result was always the same: sellers were free to use for sale signs to market their homes. although oak park’s ordinance has never been challenged in court, it too would be held unconstitutional under linmark.85 in 1977, recognizing that further enforcement of its ordinance would invite legal challenge, the village again sought the cooperation of the local realtors association. this time, only six years after the community first broached the subject, the realtors readily agreed not to use for sale signs, even though linmark had established a constitutional right to such signs.86 sociologist carole goodwin explains the realtors’ reversal: members of the real estate board were also more likely to cooperate with the community’s efforts to maintain integration, since oak park was their major market. attempting to exclude [b]lacks from the village was conceded to be futile, while steering [w]hites away from oak park and marketing exclusively to [b]lacks was hardly in the long-term interests of the local real estate brokers. their best chance lay in hoping that the village’s policy of dispersed integration succeeded and, therefore, in cooperating with that policy.87 by the end of 1977, then, oak park had: (1) an ordinance that banned residential for sale signs that (2) it did not enforce 85 the one noteworthy change since linmark, and even since the most recent cases challenging bans on for sale signs, is how the internet has changed the marketing of residential real estate. prior to the rise of online listings, sellers relied on signs, newspaper listings, word-of-mouth, and other forms of advertising by real estate agents. today, to use the language of linmark, online listings provide sellers additional “alternative channels for communication.” linmark assocs. v. township of willingboro, 431 u.s. 85, 93 (1977). like the alternatives discussed in linmark, however, online listings are less likely than signs “to reach persons not deliberately seeking sales information.” see id. online listings also afford less autonomy than a sign and involve more hassle costs. though the internet has provided an alternate means of marketing property, it has not made yard signs irrelevant or changed linmark’s fundamental constitutional analysis. 86 goodwin, supra note 42, at 212. 87 id. at 210. 22 columbia journal of race and law [vol. 9:1 because it was unconstitutional, as well as (3) a local realtors association that had agreed its members would not use signs. oak park’s sign ban was just one part of a comprehensive integration strategy, and today there is not a concern that for sale signs would lead to 1970’s-style blockbusting. nevertheless, this state of affairs—an unconstitutional ordinance that is on the books but not enforced and an agreement by local realtors not to use signs—has been the status quo for forty years. through economic upturns and downturns and housing booms and busts (including the worst housing crisis since the great depression), most homeowners in oak park have not exercised their constitutional right to use for sale signs. when the occasional sign goes up, it usually comes down quickly.88 the next section explains how a variety of factors—lack of knowledge about the law, heuristics and herd mentality, external and internal normbased sanctions, feedback loops, and signaling—all converge to make homeowners and realtors choose the same integrationaffirming behavior. iv. order despite the law the present-day dynamics in oak park are important because the village’s experience illuminates not just what successful integration initially requires, but also what is necessary to sustain it. the village is not a monolith; rather, it is a municipality of almost 52,000 people and more than 21,000 households.89 similarly, the realtors association has nearly 600 members, with approximately 50 to 100 regularly listing and selling properties in the village.90 the people who 88 see steven jackson, not in your front yard: why ‘for sale’ signs are banned in oak park, wbez91.5chicago (mar. 21, 2016), https: //www.wbez.org/shows/curious-city/not-in-your-front-yard-why-for-sale-signsare-banned-in-oak-park/5d93f1e7-8540-495c-bbca-6bc7a4430702 [https:// perma.cc/9u6u-8zba] (quoting cedric melton, director of the oak park community relations department). 89 quick facts: oak park village, illinois, u.s. census bureau (july 1, 2018), https://www.census.gov/quickfacts/fact/table/oakparkvillage illinois#viewtop [https://perma.cc/l8xv-cnn2]. 90 office/agent/affiliate roster oct. 2017, oak park area ass’n realtors (oct. 27, 2017), http://192.169.156.115/~opaaradmin/wp-content/ uploads/2017/10/membershiproster10-2017.pdf [http://perma.cc/sp55-wjd7]. no. 1:1] sustaining integration 23 comprise the village have varying religions, income levels, education, ethnicities, sexual orientations, familial arrangements, and political preferences. yet, with rare exception, they all make the same integration-affirming choice and do not use for sale signs even though linmark provided the green light. understanding why illuminates how integration can perpetuate within a suburb or exurb that deliberately chooses integration instead of segregation. a. method in 2010 and again in 2016 and 2017, i did field research to learn why the residents of oak park continue to follow the sign ban that was adopted as the village began to integrate. i conducted unstructured interviews of local realtors (eight in 2010 and thirteen in 2016 and 2017) and tried to step into the shoes of a homeowner preparing to sell her house.91 i live in oak park and some of my findings come from interactions with various entities within the village. i was therefore, in the language of sociologists, both a participant in and an observer of what i was trying to understand. participant observation has well-known disadvantages: a participant’s observations will never fully describe a particular event, and the participant’s worldview inevitably influences what she sees and how she interprets it.92 moreover, the realtors interviewed were not a representative sample; they were instead the people to whom i had access. despite these limitations, however, i am confident that this research explains the continuing non-use of residential for sale signs in oak park. though participant observation has shortcomings, it also affords sensitivity to fine-grain details and awareness of larger community context.93 although the real in realtor interviews, i asked how many realtors were highly active; the range of estimates was from 50 to 100. 91 in an unstructured interview, the interviewer uses a conversational form, begins with a list of topics to inquire about, and then allows the interviewee to direct the conversation as much as possible. 92 for discussions of participant-observer research, see paul atkinson & martyn hammersley, ethnography and participant observation, in handbook of qualitative research 248 (norman k. denzin & yvonna s. lincoln eds., 1994), and morris s. schwartz & charlotte green schwartz, problems in participant observation, 60 am. j. soc. 343 (1955). 93 schwartz & green schwartz, supra note 92, at 344. 24 columbia journal of race and law [vol. 9:1 tors do not comprise a representative sample, my “insider” status and ability to draw on personal relationships made people more willing to speak with me. most important, however, the patterns and repetition in what i heard and observed made the big picture difficult to miss. shortly after my initial research in 2010, oak park began to experience a change in the political guard that had the potential to change its approach to for sale signs and to integration more generally.94 first, the village attorney—who had held the position since 1984 and had worked on the village’s integration initiatives in the 1970’s—announced his retirement.95 second, the village manager association (vma), a local political organization whose candidates had won every election since 1952 and whose “strong, centralized authority” had helped oak park integrate,96 was losing its influence. in 2013, the vma-backed candidate lost the election for village president, and by 2017 the vma had lost control of the village board.97 because the histories of the vma and the longserving village attorney were interwoven with oak park’s push for integration, these changes had the possibility of marking the beginning of the end for oak park’s ban. in 2016 and 2017, i therefore repeated some of what i did in 2010 and spoke with additional realtors. however, the 2016 and 2017 encounters and conversations were mostly consistent with those in 2010. thus far, then, the ban has seemed impervious to political change. b. unawareness of the constitutional right the story of why the ban holds together begins with the difficulty of actually knowing the law. in his ground 94 oak park is governed by an elected legislative body consisting of a president and six trustees. see your government, oak park, https://www. oak-park.us/your-government-0 [http://perma.cc/h98l-v8uj]. 95 marty stempniak, oak park village attorney retiring after 36 years, oakpark.com (may 13, 2011), http://www.oakpark.com/news/arti cles/5-13-2011/oak-park-village-attorney-retiring-after-36-years/ [http://perma .cc/tn5v-4eu2]. 96 goodwin, supra note 42, at 36–37. 97 timothy inklebarger, village manager assoc. strikes out on election night, oakpark.com (apr. 11, 2017), http://www.riverforest.com/ news/articles/4-11-2017/village-manager-assoc.-strikes-out-on-electionnight/ [http://perma.cc/u463-nxpm]. no. 1:1] sustaining integration 25 breaking study of ranchers and straying cattle, robert ellickson argued that in close-knit groups, informal norms— not formal law—provide the rules that govern behavior.98 one reason the formal law is irrelevant is because of the transaction costs associated with learning it. as ellickson explains, individuals cannot “effortlessly learn and enforce their initial legal entitlement . . . in a world of costly information . . . one cannot assume that people will both know and honor law.”99 in oak park, it is not easy to figure out that the law permits for sale signs. though every realtor with whom i spoke knew that the local realtors association had agreed not to use signs, many did not know that the first amendment protected the use of for sale signs.100 realtors have little incentive to know the law, because their agreement with the village means they will not use signs regardless of what the first amendment permits. in addition, all the realtors i interviewed said that their clients rarely, if ever, asked whether they could use a sign. some of these clients may not have cared about signs or knew the law and chose not to exercise the constitutional right. nonetheless, many of them likely used a social proof heuristic and looked to the behaviors of others to determine what was permitted.101 these clients would have assumed, reasonably but wrongly, that the dearth of for sale signs meant that they were not entitled to use them. 98 robert c. ellickson, order without law: how neighbors settle disputes (1991). 99 id. at 281. 100 of the twenty-one realtors i spoke with, only six understood the big legal picture: that the village has an ordinance banning signs, but it cannot enforce the ordinance because it is unconstitutional. see telephone interview with c (june 8, 2010) (notes on file with author); interview with d, in oak park, ill. (june 10, 2010) (notes on file with author); interview with g, in oak park, ill. (june 18, 2010) (notes on file with author); interview with bb, in oak park, ill. (oct. 26, 2016) (notes on file with author); interview with ii, in oak park, ill. (nov. 15, 2016) (notes on file with author); interview with jj, in oak park, ill. (jan. 10, 2017) (notes on file with author). all interviews in 2010 have single letters; all interviews in 2016 and 2017 have double letters. because i agreed to keep all realtor names anonymous, the names of the realtors are replaced with randomly designated letters. 101 see young eun huh et al., social defaults: observed choices become choice defaults, 41 j. consumer res. 746, 746–47 (2014) (summarizing research on the social proof heuristic). 26 columbia journal of race and law [vol. 9:1 even prospective sellers who actually seek out information about the law may wrongly conclude that they cannot use a sign. the resources that a homeowner might consult— the internet, the village itself, and various local institutions— all might lead a prospective seller to reasonably conclude that for sale signs are illegal. 1. the internet presumably, many prospective sellers will use the internet as their first stop for information. although it is notoriously difficult to predict what results a search engine will provide for individual users,102 my experience suggests that in 2010, a google search103 would have shed some—but not much—light on the right to display a sign. in 2017, a search could have revealed that signs are permissible, but only if the prospective seller was diligent. in both years, the village ordinance forbidding for sale signs was in the top five search results with the headline “oak park village code 13-2— unlawful real estate practices.” also in both years, opinion pieces from the local paper appeared in the top ten results,104 one arguing that the ordinance should be repealed because it is unconstitutional and others defending the ordinance on the 102 internet search results vary from user to user and depend on the search engine used, the algorithm in place at the time of the search, the user’s location, the links the user previously clicked on, and so forth. see generally eli pariser, the filter bubble: what the internet is hiding from you (2011); sandra garcia-rivadulla, personalization vs. privacy: an inevitable trade-off?, 42 ifla j. 227 (2016) (discussing how search engines and social networks customize results). 103 the searches included: “for sale sign oak park”; “does oak park allow for sale signs”; and “can i use a for sale sign in oak park.” each of these searches returned the same relevant hits in the top ten results, although the order of those hits was different for each search. the computers on which i conducted these searches were all located in oak park. 104 research has suggested that most users do not look beyond the first page of results that a search returns. see, e.g., alexander j.a.m. van deursen & jan a.g.m. van dijk, using the internet: skill related problems in users’ online behavior, 21 interacting with computers 393 (2009) (finding that ninety-one percent of study participants did not look beyond the first page); madeline jacobson, how far down the search engine results page will most people go?, leverage marketing, https://www.theleverage way.com/blog/how-far-down-the-search-engine-results-page-will-most-peoplego/ [http://perma.cc/jhh5-3g65] (using graphic evidence to show the dramatic decrease in click-throughs after the fifth search result). no. 1:1] sustaining integration 27 ground that it promotes integration. one of these opinion pieces was followed by the editor’s note: “contrary to conventional wisdom, there is no formal for sale sign ban in the village. it’s a longstanding, voluntary agreement among local [r]ealtors at the request of the village.”105 a searcher who read to the bottom of the article would see that the law did not forbid for sale signs, although the searcher then would have to reconcile the editor’s note with the village ordinance that also appeared in the search results. the internet search in 2017 captured reporting that could either provide clarity or further muddy the waters, depending on the prospective seller’s persistence. in 2016, a chicago public radio station aired a segment that sought to explain oak park’s non-use of for sale signs. that reporting appears in the top five search results, with the unhelpful headline “not in your front yard: why ‘for sale’ signs are banned in oak park.”106 a searcher who clicked through the headline and kept reading, however, would learn at about word 1,200 that the village does not enforce its ordinance but rather encourages people to comply.107 in sum, the results from these searches indicate that the internet does not readily reveal that for sale signs are legal. in 2017, only a very diligent searcher could have learned the law from the internet. for many searchers in 2017, and for all searchers in 2010, the results were noisy enough that prospective sellers could reasonably conclude that signs were illegal, particularly when interpreting the results against a 105 ed messina, galewood integrated without engineering, oakpark.com (apr. 1, 2008), http://www.riverforest.com/news/articles/41-2008/galewood-integrated-without-engineering/?utm_referrer=https%3a %2f%2fwww.google.com%2f [http://perma.cc/kxj7-4wjw]. the editor’s note is curiously worded, given that the village does have an ordinance banning for sale signs. perhaps the note is a shorthand means of explaining that the village has a formal ordinance that it does not enforce, so the lack of for sale signs results from the realtors’ agreement—although only a reader already schooled in the law is likely to interpret it this way. another possibility is that the editor who wrote the note was, like some of the realtors i interviewed, confused about the status of oak park’s ordinance. 106 jackson, supra note 88. 107 in some of the internet searches, “not in your front yard” is the first hit. marketing research has demonstrated that the click-through rate for the first hit is about thirty percent. jacobson, supra note 104. however, marketing research may not bear on the click-through rate for internet users seeking to answer a legal question. 28 columbia journal of race and law [vol. 9:1 backdrop where no other sellers are using signs. for all but the most diligent searchers in 2017, and for all searchers in 2010, it also would have been reasonable to conclude that the internet had not answered whether signs were legal and therefore, help needed to come from elsewhere. 2. the village a prospective seller might simply call the village and ask whether for sale signs are permitted. i have done this twice per year since 2010 in an informal effort to gauge whether the village’s approach to the ordinance is changing. in each of these conversations, village employees never stated anything that is technically incorrect, and they emphasized non-legal reasons not to display a sign. however, because employees always referenced the village ordinance, many prospective sellers would have concluded that for sale signs are illegal. to illustrate, in one typical call,108 i spoke with an employee in the community relations department, which is in charge of fair housing policy. when i asked whether i could use a for sale sign, the employee responded that the village has an ordinance that bans for sale signs; that it “asks people to follow it”; that local realtors do not use them; and that if i used a sign there would be numerous “complaints” and “backlash” from neighbors. because the employee began by referring to the ordinance, most callers likely would have stopped there and hung up believing that signs are illegal. i, however, asked one final question: “so, i am not allowed to use a for sale sign?” the employee replied, “no, they are banned in oak park.” though none of this is technically incorrect, the prospective seller will remain unaware of her constitutional right to use a sign. only when i specifically mentioned constitutional concerns did it become clear that sellers can use signs. in one such call,109 the village employee initially replied to my inquiry by referring to the ordinance. when i pressed on and said that 108 telephone call with community relations department employee (nov. 7, 2017) (notes on file with author). 109 telephone call with village employee (june 9, 2010) (notes on file with author). no. 1:1] sustaining integration 29 i had heard something about the ordinance being unconstitutional, the employee said that the village did not enforce it because “certain courts in other jurisdictions” raised concerns that such bans interfere with free speech. the employee then mentioned the realtors’ agreement and said that the village asks people to comply with the ordinance. further, the village employee spoke about how the ban has helped the village avoid the white flight that has occurred in neighboring communities. had i not pressed on after the employee cited the ordinance, however, i would have ended the call thinking that i could not use a sign. 3. local resources prospective sellers seeking a quick answer about whether they can use a sign may turn to two additional resources: the local library or the real estate agencies that dot oak park’s major thoroughfares. when i put the question to oak park librarians in 2010 and 2017, they helped find the ordinance banning signs. when i visited real estate agencies in 2010 and 2017, those at the front desks stated that for sale signs were banned, in some instances advising me to contact the village if questions remained. it was unclear whether these individuals were referring to the ordinance, the realtors’ agreement, or both. regardless, the prospective seller would have left each of these encounters with the impression that signs are prohibited. c. the prospective seller’s norm-based incentives thus far, this article has suggested that the ban on for sale signs hangs together because many homeowners do not know the law. yet, the municipality is also home to attorneys and others whose life experiences will have made them aware that they possess the right to use a for sale sign. however, they neither use signs nor seem to ask realtors to use them. some of these homeowners may not use signs out of respect for the ban’s underlying purpose of promoting integration,110 while 110 this possibility should not be discounted. several realtors volunteered that even if the village repealed its ordinance, they would still not 30 columbia journal of race and law [vol. 9:1 others may appreciate the ban’s aesthetic benefit of reducing visual clutter.111 still, some are likely reluctant to incur the potential costs—both personal and financial—of violating the village norm. as to the personal costs, richard mcadams has theorized that norms function primarily as sources of external sanction. mcadams argues that people follow established norms to avoid “a loss of esteem” or, in other words, to avoid being thought poorly of by others.112 as compliance with the norm becomes more widespread, the anticipated loss of esteem becomes greater. once compliance reaches a particular threshold, the anticipated loss of esteem is so great that it deters most deviance from the norm.113 recall the village employee who warned that a sign would generate “complaints” and “backlash” from neighbors.114 these are the type of external sanctions about which mcadams theorizes. moreover, the widespread misunderstanding of the law likely strengthens the external sanction, because neighbors may perceive the seller as both a norm-breaker and a lawbreaker. many sellers are moving out of the area, however, and not just out of their home. sanctions from a neighbor probably have less bite when the neighbor is soon to be an ex-neighbor. this is a variant on the economist’s classic tipping problem: if a person is at a restaurant to which she never expects to return, why does she tip?115 the tip adds to the cost of the meal that has already been eaten and will not help guarantee good service in the future. similarly, why curry the good favor of— or seek to be held in high opinion by—neighbors a seller may not see post-move? economist robert cooter argues that the internalization of norms resolves the tipping problem. the diner tips because use signs because they respect the ordinance’s underlying purpose. see infra section iv.e.3. 111 see, e.g., city of ladue v. gilleo, 512 u.s. 43 (1994) (striking down sign ban that had the purpose of minimizing visual clutter). 112 richard h. mcadams, the origin, development, and regulation of norms, 96 mich. l. rev. 338, 360 (1997). 113 id. at 368. 114 see telephone call with community relations department employee, supra note 108. 115 christine jolls et al., a behavioral approach to law and economics, 50 stan. l. rev. 1471, 1492–93 (1998). no. 1:1] sustaining integration 31 she has internalized the pro-tipping norm, and once internalized, the norm becomes an obligation. once the norm is an obligation, the person feels guilt or shame when she fails to comply.116 building on cooter’s work, mcadams writes that internalization is most likely to occur with abstract norms such as “be a good citizen” or “be a good neighbor.”117 more concrete norms, like “vote” or “do not use a for sale sign,” indicate how to comply with the abstract norm. thus, deviation from the concrete norm results in self-sanction through guilt or shame for failing to be a good citizen or neighbor, or whatever the abstract norm might be. a seller can discount a loss of esteem among soon-to-be ex-neighbors, but cannot discount the self-imposed guilt or shame. as to the financial costs, sellers may worry about a sign’s market signal to prospective buyers. when signs are ubiquitous, sellers expect a sign to simply convey that the house is available for purchase. however, when many houses are for sale and only one displays a sign, the sign stands out like an inflatable arm-flailing tube man. therefore, buyers may perceive the sign as signaling that the seller is desperate or that the house is of relatively lesser quality. either of these perceptions can negatively affect buyer interest or the ultimate sales price. d. intrepid sellers and feedback loops what about the intrepid seller who does put out a sign? according to the village’s community relations department (and consistent with anecdotal observation), signs go up “a few times a year” but almost always quickly come down.118 once again, lack of information about the law and norm-based sanctions likely explain why. a seller who displays a sign will receive a call from the village’s community relations department. what happens during that conversation is unclear and in any event, will vary depending on the homeowner and which village 116 robert cooter, structural adjudication and the new law merchant: a model of decentralized law, 14 int’l rev. l. & econ. 215, 224 (1994). 117 mcadams, supra note 112, at 384, 395. 118 jackson, supra note 88 (quoting cedric melton, director of the oak park community relations department). 32 columbia journal of race and law [vol. 9:1 employee makes the call. in 2010, i met with an employee from the community relations department. the employee advised that when the village calls homeowners, it cites the ordinance and references integration; if pressed about the validity of the ordinance, the village might describe it as “questionable.”119 in a 2016 interview with local radio, the director of the department described these calls differently: i’ll explain to them that the local [real estate] board does not put up signs because of the historic symbolism, and hopefully they'll take it down. i let them know that the supreme court has ruled that you can put a sign up if you want to, but you will receive many, many calls from residents who will be in opposition to that sign . . . . and in almost all the cases they say to me “well i'm going to do exactly what your local board is doing, i want to be in lockstep with them. . . . i'm going to take it down and use alternative methods.”120 in both descriptions, the village employee explains that the ban is connected to integration. upon hearing this explanation, a homeowner might remove the sign because of support for the ban on its merits. but a homeowner who receives the type of call described to me in 2010 may think it an instruction to take down the sign because it is illegal. if instead the call unfolds as the director described in 2016, the homeowner will hear the explicit threat of external sanctions from “many, many” fellow residents. either way, lack of information about the law and norms-based sanctions help explain why the intrepid seller eventually falls into line. sellers who put out a sign and remove it unwittingly add to the confusion about the law and fears of external sanctions, creating a feedback loop.121 described colloquially, 119 interview with community relations department employee, in oak park, ill. (june 17, 2010) (notes on file with author). 120 jackson, supra note 88 (quoting cedric melton, director of the oak park community relations department). 121 economists use the term “feedback loop” to describe scenarios in which an output of one situation becomes an input in a new situation. for a discussion of feedback loops in human behavior, see dawn t. robinson, no. 1:1] sustaining integration 33 the loop here is “misinformation feeds misinformation,” or “fear of sanctions feeds fear of sanctions.” when other homeowners see a sign go up and then quickly down, they are likely to conclude that the village has ticketed the seller or has otherwise enforced its ordinance, or that neighbors have prevailed upon the seller. in trying to buck the status quo, the seller instead reinforces it. e. realtor non-use of signs the prospect of personal financial gain is the most obvious explanation for why realtors comply with the sign ban. such calculations have been important in the past, although it is unclear that they remain so today. the distinction between what motivated realtors to comply in the past and what may motivate them today is worth pausing over, especially since the term “voluntary agreement” may spark antitrust concerns for some readers. although personal financial gain may have been important in the past, my conversations suggest that today realtors are making normsbased calculations. 1. financial gain between 1971 and 1977, the local real estate association radically changed its position on for sale sign bans. in 1971, the association refused when the village asked it not to use signs, prompting the village to pass the ordinance it has today.122 after the supreme court issued linmark in 1977, however, the association readily agreed to ban signs. carole goodwin explains that realtors had come to see integration— and the accompanying prevention of white flight—as the best strategy for maintaining property values.123 because realtors’ incomes depended on property values, the agreement to not use signs was in the realtors’ best financial interest. if maintaining integration maintains property values, then village priorities conveniently align with legitimate control theories in sociology, 33 ann. rev. soc. 157 (2007) (reviewing how sociologists use feedback loop systems to explain a wide variety of behaviors). 122 see goodwin, supra note 42, at 193. 123 id. at 160–62. 34 columbia journal of race and law [vol. 9:1 realtor priorities. a ban on residential for sale signs, however, may have additional financial benefits for realtors. specifically, the ban may discourage people from selling by owner or keep non-local realtors from entering the market. either outcome would provide realtors reason to voluntarily ban signs or not challenge the village’s ordinance. reporting by a regional newspaper suggests that at least early in the ban’s history it may have kept non-local realtors from selling in the village. in an article about how oak park prevented white flight, the then-director of the village’s community relations department commented, “we will continue to ban the signs on the basis that our ordinance has not been challenged.” the article then goes on to explain: realtors objected to the ban at first. but [oak park] gets cooperation from [r]ealtors today. the key reason [the director] said, is that they’re making money. most homes are sold by local [r]ealtors who have access to the multiple listings. outside [r]ealtors also aren’t allowed to erect signs and aren’t encouraged to sell in oak park. [the director] estimated that 75% to 85% of the real estate agents who sell in the village belong to oak park’s board of realtors, and consider themselves a part of the community and its efforts.124 at this juncture—almost twenty years into the ban—a prominent village employee perceived it to lessen competition by deterring non-local realtors from entering the market. but fast-forward to the 2010’s, and none of my interviewees thought the ban had much effect on the market— either by discouraging sale by owners or by excluding nonlocal realtors. instead, they emphasized that signs do not move houses. the internet, not a yard sign, is what makes houses sell. homeowners can easily list their house on a free or paid 124 fran bauer, sherman park finds a way: chicago suburb shows path to stability, milwaukee j., mar. 2, 1989, at 1b. no. 1:1] sustaining integration 35 sale-by-owner website.125 out-of-town realtors put a home on the multiple listing services just as local realtors do. once the listing is up, it is available to any prospective buyer who conducts an internet search. cell phone applications even send electronic notifications of what is for sale as buyers move around an area. online listings—not signs—sell houses. still, interviewees said they use signs when they list houses outside the village. one realtor summed by stating, “i tell my clients that houses don’t sell because of an open house. but we have one anyway because you never know.”126 signs also help agents market themselves, because placing a realtor’s name on the sign advertises that the agent landed the listing.127 whatever the residual value of a sign, however, none of the realtors interviewed perceived the ban as actually benefitting their bottom line. the realtors interviewed could have been dissembling when they said that neither they nor their peers complied with the ban out of financial interest, or when they appeared puzzled at my suggestions that the sign ban might discourage sale by owners or out-of-town realtors from entering the market. but these realtors appeared genuine. they seemed to either not have thought much about the ban’s potential anticompetitive effects and/or to believe that any such concerns reflected an outdated understanding of the role of signs in real estate markets. of course, realtors may think that the sign ban does not lessen competition when in fact the ban deters prospective sales by owners or non-local realtors. quantitative empirical analysis comparing the village’s sale-by-owner rates and nonlocal realtor activity to that of nearby municipalities with similar housing stock could measure whether the ban actually 125 many websites provide advice about how to market one’s own house online. see, e.g., carla toebe, how to sell a house online, wikihow, https://www.wikihow.com/sell-a-house-online [http://perma.cc/uc5w-psbm]. 126 interview with mm, in oak park, ill. (jan. 17, 2017) (notes on file with author). 127 telephone interview with a (june 3, 2010) (notes on file with author); interview with e, in oak park, ill. (june 11, 2010) (notes on file with author); interview with cc, in oak park, ill. (oct. 27, 2016) (notes on file with author); telephone interview with ee (nov. 2, 2016) (notes on file with author). 36 columbia journal of race and law [vol. 9:1 has anti-competitive effects.128 because the real estate market has changed dramatically since the advent of the internet, the results of such analysis would likely vary depending on the time period studied. 2. necessary cooperation among the realtors i spoke with, norm-based considerations—not financial gains—were the overriding concern. eric posner theorizes that norms are not the source of internal or external sanctions, but are rather “behavioral regularities that emerge as people interact with each other in pursuit of their everyday interests.”129 individuals use norms to signal that they are of a “good type”—people with whom others should cooperate.130 the desired cooperation varies depending on context. a lawyer may supply a client with soughtafter sports tickets to signal that she is worthy of continued business, or a prospective job candidate may dress carefully for an interview to signal that she will be a good employee. here, a real estate agent might refrain from using a sign to signal that she plays fair. many of the realtors interviewed described a real estate community that is tightly-knit and in which all agents are interdependent.131 indeed, even those realtors who thought the village had an enforceable ordinance seemed concerned about what their peers and the local realtors association would do if they used a sign—not about what the village would do. most interviewees emphasized that if a realtor uses a sign, the local 128 in most cases striking down residential for sale sign bans, realtors bring the challenge to the ban. see cases cited supra notes 84–85. this may suggest that realtors do not perceive that sign bans squeeze out sale-byowners. 129 posner, supra note 6. 130 id. at 19. 131 see telephone interview with a, supra note 127; interview with b, in oak park, ill. (june 5, 2010) (notes on file with author); telephone interview with c, supra note 100; interview with e, supra note 127; interview with aa, in oak park, ill. (oct. 10, 2016) (notes on file with author); interview with cc, supra note 127; interview with kk, in oak park, ill. (jan. 12, 2017) (notes on file with author). no. 1:1] sustaining integration 37 association will call and tell the realtor to take it down.132 other interviewees spoke about how realtors in the village count on one another to show one another’s listings and for honest feedback about how a home should be priced, staged, and so forth. this may all at times run counter to a realtor’s immediate self-interest. as one realtor summarized, however, “what comes around goes around and i’m going to need the same kind of thing down the road.”133 other realtors explained the importance of a level playing field with no agent or realty overtly trying to gain a competitive advantage. a realtor who used a sign “would be jockeying” and would “make a lot of people angry.”134 for the sake of everyone’s business, it is important that people get along. by not using a sign, realtors signal that others should cooperate with them. 3. respect for the ban’s purpose as previously mentioned, only six of the realtors interviewed understood that the village has an ordinance but that it is unconstitutional.135 each realtor had been an agent or lived in the village for at least ten years. when asked why they complied with the ban, the realtors all began by speaking to its underlying purpose: “i respect what the village is trying to do”136 or “you know the history, right?”137 when interviewed about the ban by local radio in 2016, the president of the local real estate association said, “personally, it just doesn't feel right to start dismantling, piece by piece, a human rights program that served our town so well, and helped to make it a desirable destination for many home buyers.”138 similarly, several of the realtors who were unaware of the first amendment issue volunteered that even if the village got rid 132 see interview with b, supra note 131; interview with bb, supra note 100; interview with dd, in oak park, ill. (nov. 1, 2016) (notes on file with author); interview with mm, supra note 126. 133 telephone interview with a, supra note 127. 134 interview with mm, supra note 126. 135 see supra text accompanying note 100. 136 telephone interview with c, supra note 100. 137 interview with ii, supra note 100. 138 jackson, supra note 88 (quoting jane macclelland, president of the oak park area association board of realtors). 38 columbia journal of race and law [vol. 9:1 of its ordinance, they would still abide by it out of respect for the village’s integration efforts.139 these sentiments are particularly striking because no realtor interviewed thought that the ban currently prevented white flight. thus, the realtors who said they would abide by the ban because of its underlying purpose could not have been worried that a return of signs would change the village’s racial demographics. the village’s community relations director has explained that the association “does not put up signs because of the historic symbolism.”140 if realtors—many of whom live in the village—perceive the ban as a symbol of the village’s commitment to integration, they may be inclined to treat it with reverence.141 in addition, regardless of whether they understood the current state of the law, all of the realtors interviewed knew why the village had adopted the ordinance. several spoke about how local real estate agencies became committed to integration after witnessing what happened in nearby communities during the 1960’s and 1970’s.142 they also projected a sense of pride about the extent to which the village had successfully integrated. the general sense gathered was that these realtors considered themselves partners in the village’s efforts to promote integration. 4. relationship with the village one of the realtors i spoke with in 2010 was a particularly prominent member of the local realtors association who clearly understood the law.143 this individual was careful to say that one reason for personally not using signs is because the village still formally forbids them, and the realtor “respects 139 see interview with e, supra note 127; telephone interview with h (aug. 25, 2010) (notes on file with author); interview with dd, supra note 132; telephone interview with ee, supra note 127; telephone interview with gg (nov. 11, 2016) (notes on file with author). 140 jackson, supra note 88 (quoting cedric melton, director of the oak park community relations department). 141 see infra text accompanying notes 177–179 (discussing how realtors benefit from marketing integration). 142 see interview with d, supra note 100; interview with g, supra note 100; interview with ii, supra note 100. 143 telephone interview with c, supra note 100. no. 1:1] sustaining integration 39 the authority of the village.”144 similarly, in a 2016 interview with local radio, the president of the realtors association noted that “the local board complies with the sign ban because it is still technically a village ordinance.”145 it is unclear why these individuals emphasized the ordinance. they may be aware that the term “voluntary agreement”—often used to describe the association’s arrangement with the village—may spark questions about unlawful anti-competitive behavior. they also simply may have been expressing a rule-abiding tendency: the ordinance is still on the books and therefore one must comply. alternatively, because their business dealings make them “repeat players” with the village,146 they may benefit from reminding the municipality that they are willing to play by its rules, regardless of the constitutionality of those rules. v. the village the discussion thus far has focused on realtors and homeowners, but the village itself has a role in almost every part of the story that the previous section told. it has kept its ordinance on the books. it has secured the cooperation of the local realtors’ association in voluntarily banning signs. it answers inquiries in ways that might lead citizens to conclude that the law forbids signs. it asks homeowners using signs to take them down. in the 1970’s, when blockbusting and panic peddling were literally taking place across the street, the reasons for the ban were obvious. but why does the village work to preserve the ban in 2017, when white flight is no longer an immediate threat and other parts of the village’s efforts play a far bigger role in maintaining integration?147 this section draws on cultural property scholarship to suggest that the village is akin to a source community trying to protect its cultural resource: integration. 144 id. 145 jackson, supra note 88 (quoting jane macclelland, president of the oak park area association board of realtors). 146 for a classic article on repeat players and their various incentives, see marc galanter, why the “haves” come out ahead: speculations on the limits of legal change, 9 l. & soc’y rev. 95 (1974). 147 mckenzie & ruby, supra note 36, at 13. 40 columbia journal of race and law [vol. 9:1 a. integration as a cultural resource the concept of cultural property initially grew out of a concern about the plundering of antiquities and wartime destruction of physical objects that are “designated by a state ‘as being of importance for archaeology, prehistory, history, literature, art or science.’”148 in time, the notion of cultural property expanded beyond “specific, unique objects” to include intangibles that embody cultural values or heritage but lack individual authorship.149 in the united states, the most wellknown claims to intangible cultural property involve native american symbols, rituals, and likenesses.150 most scholarship about cultural property has focused on objects and ideas that are reducible to ownership through the traditional rules governing real and personal property or through intellectual property doctrine. susan scafidi, however, has argued that cultural property is properly understood as including “unprotected intangibles” that are beyond the boundaries of property law.151 unprotected intangibles lack an individual author and a precise moment of creation,152 and are “the creative expressions of an unincorporated group” that are “created deliberately or as a by-product of social interaction over time.”153 scafidi writes about a variety of cultural products—ranging from dance (e.g., the tango), to dress (e.g., the sari), to language (e.g., american sign language)—that are important because of their role in and significance to the 148 naomi mezey, the paradoxes of cultural property, 107 colum. l. rev. 2004, 2010 (2007) (quoting unesco convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property art. 1, nov. 14, 1970, 823 u.n.t.s. 231) (tracing the emergence of cultural property). 149 susan scafidi, who owns culture? appropriation and authenticity in american law 48 (2005). 150 see, e.g., michael f. brown, who owns native culture? 13– 15 (2003) (discussing hopi rituals); rebecca tsosie, reclaiming native stories: an essay on cultural appropriation and cultural rights, 34 ariz. st. l.j. 299 (2002) (suggesting taxonomy for appropriated native american cultural property). 151 scafidi, supra note 149, at 21–22. 152 marc r. poirier, the cultural property claim within the samesex marriage controversy, 17 colum. j. gender & l. 343, 375 (2007). 153 scafidi, supra note 149, at 21. no. 1:1] sustaining integration 41 source community. while none of these cultural products are legally understood as property, they nonetheless “serve as the chief repository of social memory around which the community conceives or imagines itself”154 and “instantiate the internal dynamics, shared experiences, and value systems that bind the community together.”155 integration—and its cousin, “diversity”—is the village’s “unprotected intangible.” in the 1970’s, oak park launched a calculated strategy designed to halt at its borders white flight and black re-segregation. as the strategy unfolded, oak park reimagined and re-branded itself both for the world at large and for residents living within the village. goodwin describes the perception of oak park prior to the 1970’s: [t]he image of community held by oak parkers and promoted through the local media rested far more on such things as its expensive homes, architectural landmarks, quality stores, favorite sons, and a few affluent citizens than it did on any average measures or objective criteria of housing and population characteristics.156 but as the 1970’s unfolded, a community which had rested its laurels on being the home of frank lloyd wright and the birthplace of ernest hemingway sought to be known for something else: successfully integrating. oak park leaders actively sought to portray the village “as a liberal community striving to make integration work.”157 they repeatedly emphasized that “oak park was a proving ground for integration, with the whole world watching.”158 the village became “oak park, the people place,” with advertisements in national and regional publications aimed at young, white, liberal, and upwardly-mobile families.159 these advertisements had an unmistakable message: “oak park is a place where blacks, whites, and other races live, work, and 154 id. at 35. 155 id. at 24. 156 goodwin, supra note 42, at 35 (footnote omitted). 157 id. at 160. 158 id. 159 id. at 169. 42 columbia journal of race and law [vol. 9:1 get along together.”160 integration had replaced architecture and favorite sons as the community’s single most positive attribute. like scafidi’s “unprotected intangibles,” integration continues to be the cultural product “around which the community conceives of or imagines itself.”161 almost 50 years after the village set out to integrate, it still conceptualizes itself as a community that is striving to make integration work or that is “constantly pushing.”162 most recently, this has meant taking a hard look at racial inequities at the public high school.163 the village strives to keep integration at the root of public life. it has a “diversity statement” that its board reaffirms every two years with great fanfare; diversity parades and ethnic festivals; an annual dinner series that promotes “candid dialogue about race, diversity, and inclusion”; housing counseling that discourages self-segregation; and regular street closures for citizen-sponsored block parties because they allow diverse neighbors to meet and mingle. the local newspaper is filled with reporting about and opinions on the by-product of integration—figuring out how diverse people can live side-byside equitably and amicably. integration is the value system around which oak park imagines itself. scafidi and others who have written about intangible cultural property are mostly concerned with questions of copying and exclusion: to what extent should a source community be able to exclude others from copying cultural products? the concern is that copying by those outside the source community changes and dilutes the cultural product in ways that make it difficult to preserve and perpetuate group identity over time. when change and dilution are the central concerns, imitation is far from the sincerest form of flattery. instead, it is “theft by copying” or “appropriation.”164 160 id. 161 scafidi, supra note 149, at 35. 162 jackson, supra note 88 (quoting cedric melton, director of the oak park community relations department). 163 see, e.g., ‘america to me’ makes oak park debut, oakpark.com (aug. 14, 2018), http://www.oakpark.com/news/articles/8-14-2018/%27ameri ca-to-me%27-makes-oak-park-debut-/ [http://perma.cc/s68g-pknn] (discussing steve james’ documentary about oak park’s high school). 164 scafidi, supra note 149, at 30–31 (“all cultural products, like all forms of intellectual property, incorporate an intangible element that no. 1:1] sustaining integration 43 because of this emphasis on how and when the law should prevent imitation, fitting integration into the cultural property paradigm initially may seem to require a sturdy shoehorn. oak park would neither object to other municipalities imitating what carole goodwin labeled the “oak park strategy” as a means of creating integration nor would it want integration to exist only within its borders. however, oak park does want to ensure that integration continues to exist within the village, and this requires aggressive management of its intangible cultural product. b. a source community manages “the commons” building on scafidi’s work, mark poirier has argued that many intangible cultural products without an individual author or a precise moment of creation are best understood as “cultural resources” that are analogous to “the commons.”165 in traditional property doctrine, the commons encompasses physical resources that are freely available to everyone unless a governing body intervenes.166 examples include pastures for grazing cattle in feudal england, groundwater, and the earth’s atmosphere. like these physical resources, intangible cultural products that have not been reduced to ownership are free for the taking. anyone can do the tango, wear a sari, learn american sign language, and so on. poirier’s key insight is that source communities fear degradation of a cultural resource in the same way that environmentalists fear depletion of a natural resource. as garrett hardin’s classic article explained, the “tragedy of the commons” is that because each individual benefits from using the common resource for her own purposes, the resource is may be subject to theft by copying. . . . [f]or cultural products, the intangible element may be an expression of community beliefs, values . . . or practices.”). 165 poirier, supra note 152, at 362, 375–76. 166 this broad definition blurs the distinction between two different kinds of commons property—open access and a more limited commons. open access property is characterized by a lack of governing law (for example, the middle of the ocean), while limited commons property is owned or controlled by a group of individuals who jointly manage the resource and exclude outsiders (for example, a tennis court in a homeowners association or the grazing pasture in feudal england). see hanoch dagan & michael a. heller, the liberal commons, 110 yale l.j. 549, 557 (2001). 44 columbia journal of race and law [vol. 9:1 susceptible to degradation or depletion from misuse.167 with natural resources, for instance, fishermen may harvest a species to the point of extinction. with cultural resources, actions from those outside the source community may debase, devalue, or irrevocably change a cultural product.168 poirier was primarily interested in conceptualizing marriage as a kind of commons. because poirier was writing when marriage was still restricted to opposite-sex partners, marriage fit neatly into the paradigm of a “limited commons,” where a group of individuals (religious conservatives) controls a resource and excludes outsiders (same-sex couples). in contrast, integration and its benefits are more akin to an “open access commons” that is freely available to all. in addition to being available to all who are interested, integration and its benefits are non-rivalrous in that use by one individual does not reduce the availability of the resource for others. a resource that is both non-excludable and nonrivalrous is typically described as a public good instead of a commons, particularly when government is involved in providing or securing the resource.169 but unlike the theoretical construct of a commons, the construct of a public good does not reflect concern about degradation. textbook examples of public goods include public firework displays, national defense systems, and street lighting—hardly fragile resources. integration, on the other hand, is an inherently fragile resource that faces the threat of degradation from a mere shift in neighborhood demographics. as hanoch dagan and michael heller have written, property constructs like the commons “are generally understood as ideal types, never present in pure form on the ground”170 but nonetheless useful in conceptual 167 garrett hardin, the tragedy of the commons, 162 sci. 1268 (1968). 168 see antonia finnane, ‘not your prom dress’: why a chinese dress set off a cultural debate about identity and history, conversation (may 6, 2018), https://theconversation.com/not-your-prom-dress-why-a-chinese-dress -set-off-a-cultural-debate-about-identity-and-history-96020 [http://perma.cc/ k9z7-t3sf], for a discussion on the controversy that erupted when a nonchinese american used the chinese qipao, a traditional dress with a history that dates to the 1920’s, as a prom dress; see also mezey, supra note 148, at 2005–08 (discussing university of illinois mascot chief illiniwek). 169 see paul samuelson, the pure theory of public expenditure, 36 rev. econ. & stat. 387, 387 (1954). 170 dagan & heller, supra note 166, at 555. no. 1:1] sustaining integration 45 izing the management of a resource. here, integration’s fragility makes it more akin to an open access commons than a robust public good. carol rose has summarized three popular strategies for managing a common resource.171 a “rightway” strategy proscribes limits on an individual’s use of the resource.172 a “keepout” strategy excludes some groups in order to protect the resource, while still allowing insiders to have unfettered access.173 finally, a “prop” strategy creates individualized property rights in the common resource as a means of incentivizing individuals to restrain their use.174 each of the strategies that rose outlines helps explain why oak park continues to rely on a sign ban. such explanation would be cleaner if empirical research had demonstrated that banning for sale signs—whether in the 1970’s or the 2010’s—actually stemmed white flight or otherwise promoted integration. in the 1970’s, however, given what had happened in nearby austin, oak park had every reason to think that a proliferation of signs would encourage white flight. to apply rose’s formulation, the ban (particularly when coupled with the village’s anti-solicitation ordinance) functioned as a keepout strategy that deterred unscrupulous real estate brokers from entering the market and encouraging white flight. alternatively, in the early days of integration, the ban served as a rightway strategy that prohibited an action (displaying a sign) that could jeopardize a burgeoning cultural resource. in the 2010’s, the village may perceive residual value in this kind of keepout or rightway strategy. just as no empirical studies prove that for sale sign bans prevent white flight, no empirical studies disprove it either. the mere possibility that for sale signs might threaten the cultural resource may be reason enough to ban them. under this way of thinking, implementation of the ban coincided with the rise of integration in oak park, so why mess with success? even if the ban does not actually prevent white flight, however, it still acts as a strategy that preserves the cultural 171 carol m. rose, rethinking environmental controls: management strategies for common resources, 1991 duke l.j. 1, 9 (1991). 172 id. at 9. 173 id. 174 id. at 9–10. 46 columbia journal of race and law [vol. 9:1 resource. the non-use of for sale signs makes a drive through oak park different than a drive through any other chicago suburb. prospective home purchasers will notice that none of the properties they see have for sale signs. some buyers will know that residential for sale sign bans are aimed at preventing white flight; other buyers will ask the real estate agent about the lack of signs, and the agent’s response will likely refer to integration or diversity.175 the palpable absence of signs therefore signals the municipality’s commitment to integration and sends a message to potential residents about the values the community embraces. some potential buyers will consider these values a positive; others will not. however, because people who move tend to choose communities whose values and preferences mirror their own,176 the ban serves a subtle keepout function: if you do not value integration and diversity, then oak park is not the municipality for you. maintaining integration, just like creating integration, requires citizens who are inclined to support it.177 integration is a fragile resource facing threats from multiple factors: who uses the public schools and how many dollars fund them, the availability of affordable housing, who goes and who stays, and many other decisions that citizens make either directly or at the polls. one effective way of preserving integration is to attract individuals who are inclined to support it and to exclude individuals who are not. even in the 2010’s, then, banning for sale signs serves a useful keepout role. 175 see goodwin supra note 42, at 210–12. 176 see bill bishop, the big sort: why the clustering of likeminded americans is tearing us apart 5–7 (2008) (“when people move, they also make choices about who their neighbors will be and who will share their new lives.”); see also krysan & crowder, supra note 19, at 66– 67 (discussing how social networks shape residential choices); camille z. charles, won’t you be my neighbor: race, class, and residence in los angeles 125–30 (2006) (concluding that active racial prejudice helps explain the persistence of racial segregation and is a critical factor that determines whether neighborhoods integrate); reynolds farley et al., the residential preferences of blacks and whites: a four-metropolis analysis, 8 housing pol’y debate 763, 763 (1997) (concluding that race continues to be a significant factor in residential decision-making, with whites’ willingness to move to a neighborhood inversely related to the number of blacks living there and blacks preferring integrated neighborhoods with a substantial number of black residents). 177 goodwin, supra note 42, at 169–70. no. 1:1] sustaining integration 47 rose’s prop strategy—creating individualized property in the common resource—is also relevant and explains why the village has successfully secured realtor cooperation with the ban. though integration cannot be divided into privatelyowned pieces, oak park itself consists of tract after tract of privately-owned land. the value of this land creates an incentive to maintain integration, perhaps particularly for realtors whose livelihoods depend on taking a percentage of the sales price. in the 1970’s, when oak park feared massive white flight, integration was a route to maintaining property values.178 in the 2010’s, and in the preceding three decades, owners in oak park have had access to a scarce cultural resource. this resource—integration—helps realtors sell the municipality to prospective residents and in turn, sell the private property located within the municipality. strong schools and a convenient commute to chicago are relatively easy to come by, but integrated neighborhoods are not. so long as oak park preserves integration, realtors can offer buyers a resource not readily available elsewhere. moreover, because the realtors themselves tend to be local and therefore property owners themselves, they have an additional incentive to preserve integration. here, the influence of private property is more nuanced than in the prop examples that rose discusses,179 but privatization nonetheless incentivizes realtors to exercise restraint. in sum, then, the village may be intent on keeping for sale signs outside its borders because it is trying to avoid a classic “tragedy of the commons.” cultural resources such as integration—like environmental resources such as air and water—are readily degraded unless individuals exercise restraint. today, the village’s ban is a strategy that helps preserve the cultural resource of integration, albeit in ways that are far subtler than what the village envisioned when it passed its ordinance in 1972 to eliminate visible signals of white flight. oak park is just one community, and the sign ban is just one norm within that community. however, as suburbs and communities on the metropolitan fringe become even 178 id. at 160–62; bauer, supra note 124. 179 see rose, supra note 171, at 10–11 (describing prop strategies that include cap and trade and setting prices at levels that encourage restrained use of the common resource). 48 columbia journal of race and law [vol. 9:1 more segregated, the oak park example is instructive. if other communities make the deliberate choice to integrate, norms and other behavioral phenomena will help sustain that integration. vi. drawing on other communities’ successes maria krysan and kyle crowder have described plainly the perceptions that shape residential decision-making: for [w]hites, negative associations with a community’s racial composition (higher crime, poor school quality, lower property values) often lead them to eliminate diverse or predominantly [b]lack communities from the very start. african americans, for their part, may presume that a predominantly [w]hite community will be hostile to african americans and eliminate it from consideration for this reason.180 unfortunately, “there is a kernel of truth to people’s heuristicdriven beliefs—there are in fact profound differences and inequities across [places] based on their racial compositions and some [places] are indeed unwelcoming to people of color.”181 communities that choose integration instead of segregation must distribute resources in a manner “that defies the stereotypes and unravels the correlated characteristics that outsiders or potential new residents bring with them.”182 the good news is that shifting patterns of segregation make it easier to defy these stereotypes. because on average segregation is declining within major metropolitan cities but increasing in the surrounding metropolitan areas,183 suburbs and exurbs are integration’s new ground zero. these communities, which have fewer square miles and people than metropolitan cities, also have correspondingly fewer challenges when it comes to resource allocation.184 allocating resources among the 21,000 citizens who live in ferguson, missouri, is 180 krysan & crowder, supra note 19, at 225. 181 id. at 228. 182 id. at 229. 183 see sources cited supra notes 21–23 and accompanying text. 184 krysan & crowder, supra note 19, at 231. no. 1:1] sustaining integration 49 easier than allocating resources among the 311,000 who live in st. louis—just as oak park’s population of 52,000 makes resource allocation simpler than chicago’s 2.7 million. municipalities that choose integration do not need to figure out how to achieve it on their own. instead, they can draw from other communities’ successes. for instance, affordable housing is essential for communities that want to welcome black people and is often the “elephant in the room” that stands in the way of progress.185 however, housing experts know how to make affordable housing available. it begins with zoning that permits higher-density developments, because communities with higher-density zoning have higher rates of integration.186 affordable housing advocates have also developed “a range of local policies that tap the economic gains from rising real estate values to create affordable housing, thus tying the creation of homes for lowor moderate-income households to the construction of market-rate residential or commercial development.”187 one typical application of these policies is to require that a developer rent or sell a certain percentage of new housing stock to lower-income residents.188 experts have also already found that successful integration depends not only on the availability of affordable housing, but on making that housing available in ways that interrupt the pattern of whites searching for housing in white neighborhoods and blacks searching for housing in black neighborhoods.189 places like montgomery county, maryland, have done exactly this, 185 id. 186 douglas s. massey & jonathan rothwell, the effect of density zoning on racial segregation in u.s. urban areas, 44 urb. aff. rev. 779, 781 (2009). 187 krysan & crowder, supra note 19, at 232 (quoting rick jacobus, inclusionary housing: creating and maintaining equitable communities 7 (2015)). 188 id. 189 gary orfield & chungmei lee, why segregation matters: poverty & educational inequality (2005), https://www.civilrightsproject .ucla.edu/research/k-12-education/integration-and-diversity/why-segrega tion-matters-poverty-and-educational-inequality/orfield-why-segregationmatters-2005.pdf [http://perma.cc/svb3-84le] (comparing the affordable housing that was made available through normal channels in new jersey with the affordable housing made available through a lottery system in montgomery county, maryland). 50 columbia journal of race and law [vol. 9:1 pioneering approaches that help ensure that affordable housing is distributed in ways that increase racial integration.190 making affordable housing available to black people is one way that mostly white communities can defy the stereotype that white communities are unwelcoming to black people. communities can also combat the negative assumptions that whites make about crime, school quality, and property values in areas that are racially diverse or predominantly black. often this will occur through efforts that are creative and hyper-local. in new jersey, for instance, the south orange-maplewood community coalition on race makes loans to homeowners who want to spruce up the exterior of their homes, in an effort to ensure that no part of the community looks different from the rest.191 local housing counseling centers can show potential white home buyers housing stock in mostly-black neighborhoods that is nicer than what they have seen in mostly-white neighborhoods.192 developments at the state level can also help contest stereotypes, such as when the washington supreme court held that heavy reliance on local bonds to fund k-12 education exacerbated the differences in school quality throughout the state. this reliance, impermissible under the state’s constitution, “reinforced the perception that residential areas containing large populations of color offer only poor services and structural deficiencies.”193 as these examples suggest, strategies are available to help create racially-integrated localities. unraveling segregation is not an insurmountable task, but because segregation is so baked into american society, the unraveling will not happen by accident. communities must deliberately choose 190 florence wagman roisman, opening the suburbs to racial integration: lessons for the 21st century, 23 w. new eng. l. rev. 65 (2001) (detailing montgomery county’s lottery system); see also krysan & crowder, supra note 19, at 233–34 (explaining that the lottery system disrupts the normal social processes through which people end up living where they do). 191 krysan & crowder, supra note 19, at 229. 192 id. at 228–29. 193 id. at 230; see joseph o’sullivan, washington supreme court ends long-running mccleary education case against the state, seattle times (june 7, 2018), https://www.seattletimes.com/seattle-news/washingtonsupreme-court-ends-100000-per-day-sanctions-against-state-in-mccleary-edu cation-case/ [https://perma.cc/xx66-m9u8] (summarizing litigation history and the economic benefits for washington’s school districts). no. 1:1] sustaining integration 51 integration and then go about effectuating that choice. the choice can be driven by a firmly-rooted belief that black people should have access to the same opportunities as whites or by the pragmatic realization that deliberate integration stems white flight. this is the choice the village of oak park made in the 1970’s right along the border of the city that had more hostility and hatred than martin luther king had ever seen. other suburbs can make this same choice. the additional good news is that once a community deliberately chooses integration instead of segregation, norms and other behavioral phenomena will help reinforce that decision. this article has looked closely at one such norm—the non-use of residential for sale signs. however, this is only one of the integration-affirming norms that might arise. for example, consider the loans that the south orange-maplewood community coalition on race makes to homeowners for exterior repairs. as the number of dilapidated-looking homes decreases, homeowners who have the resources to make repairs on their own but previously have not might decide to “keep up with the joneses.” other homeowners may want to stay ahead of the joneses, so they will invest in landscaping and other exterior improvements. all of this activity will create positive norms about the exterior appearance of houses in that area. most of the citizens who comply with these norms will not be making deliberate integration-affirming choices; instead, they will just be thinking about the curb appeal of their homes. the norm, however, will help push back against the stereotypes about the quality of housing stock in diverse communities. some of the norms that develop in communities that deliberately choose integration will signal to prospective residents that the community welcomes diversity. for example, block parties are another integration-affirming norm that has developed in oak park. after the village began integrating, it promoted them as a means of “getting to know each other,” thus humanizing neighbors who otherwise might initially be perceived as just black or white. over time, block parties have taken on lives of their own. prospective residents who tour the village in the summer and fall will see the parties and notice the racial diversity of the neighbors gathered around bouncy houses and barbeques. the norm thereby generates a visible indicator of integration, making the village appeal to prospective residents who value racially diverse places. when the 52 columbia journal of race and law [vol. 9:1 community makes decisions about zoning, schools, and other policy issues, these residents are likely to support choices that foster integration. still more good news is that the residents attracted by these integration-affirming norms will become sources of information about life in communities that have achieved integration or are working towards it. this information will influence the housing choices of the residents’ families, friends, and larger social circles.194 some of these individuals will already perceive integration as a positive attribute, but others will not. what residents say about their experiences in racially integrated places, or what friends and family see when they visit, can help combat stereotypes about unwelcoming whites, lesser public services, and so forth. this dismantling of preconceptions will encourage more people to consider raciallyintegrated communities. vii. conclusion faulkner’s famous words about how the past is not even the past are part of “a transcendent message” about people eventually rising above racial divisions and recognizing “the ties that bind us all.”195 this article argues that segregation is a past and present that communities can move beyond. it begins with municipalities deliberately choosing integration instead of segregation. once a community chooses integration, it creates integration-affirming norms. these norms then promote integration and signal to the world at large that the community values racial integration. this attracts new members who similarly value integration and are likely to support policies and engage in behaviors that foster it. as this process unfolds, racial segregation becomes part of the community’s past and integration becomes part of its present. however, all of this depends on a crucial first step: communities making the deliberate choice to integrate. 194 see krysan & crowder, supra note 19, at 220–23. 195 scott horton, the past is not the past. or is it?, harper’s mag.: browsings (mar. 24, 2008, 9:07 am), https://harpers.org/blog/2008/03/thepast-is-not-past-or-is-it/ [http://perma.cc/9zyt-rq5d]. cjrl newman f17-corrected.pdf a place to call home: defining the legal significance of the sanctuary campus movement natasha newman1 the sanctuary campus movement ignited following the election of donald trump as the 45th president of the united states. the movement has given rise to questions about the protections available to undocumented immigrants in the united states, with specific emphasis placed on the vulnerability of undocumented students. the movement joins a list of sanctuary initiatives, such as the sanctuary city movement of the 1980s, which was plagued by negative rhetoric that taints the political discourse surrounding sanctuary campuses. despite the humanitarian nature of the sanctuary campus movement, its legal impact on undocumented students remains uncertain while politicians and right-wing conservatives oppose it as a violation of federal law. this note analyzes the legal barriers currently facing the sanctuary campus movement, examines current immigration and privacy laws affecting the movement, and discusses ways sanctuary campuses can fill in the gaps left by such laws in order to improve protections for undocumented students. 1 natasha newman is a j.d. candidate 2018, columbia law school. b.a. 2012, columbia college, columbia university in the city of new york. the author would like to thank professors lance liebman and rose cuison villazor for their helpful feedback throughout the writing process and guidance in shaping the topic. the author would also like to thank the staff of the columbia journal of race and law, for their editing assistance and substantive contributions. no. 3:122] a place to call home 123 i. introduction ......................................................... 124 ii. what is a sanctuary? ......................................... 126 a. understanding the rise of sanctuary cities and campuses 127 1. origin of “sanctuary city” ............................................................129 2. rise of the sanctuary campus movement .............................133 b. law behind the movement.......................................................... 136 1. undocumented children and access to education ............138 2. legal obstacles to higher education ......................................139 iii. the sanctuary city movement and the push for sanctuary campuses ............................. 144 a. threats facing the sanctuary city movement .................. 144 1. federal defunding of sanctuary cities may violate congress’s spending power. ..................................................................147 2. implications for state sovereignty: federalism under the tenth amendment .....................................................................................149 b. the sanctuary campus movement and its requests ........ 152 1. defining the objectives of the sanctuary campus movement ......................................................................................................152 2. analyzing sanctuary campus policy requests ...................156 3. current protections: what sanctuary campuses can offer students ..........................................................................................................163 iv. solidifying the legal significance of sanctuary campuses ................................................. 166 a. planning a path forward ........................................................... 166 1. implementing data retention policies that expand ferpa protections ....................................................................................................167 2. declaring sanctuary buildings may not be the best approach .......................................................................................................171 3. encouraging state and city legislation and helping students to find legal assistance ......................................................172 v. conclusion .............................................................. 173 124 columbia journal of race and law [vol. 8:1 i. introduction in november 2016, thousands of people showed their support for undocumented immigrants2 through participation in a number of demonstrations and rallies that would come to be known as the “sanctuary campus” movement.3 under this movement, students and their supporters have urged their respective institutions of higher education to enact policies to protect undocumented students from deportation. these requests include a commitment by these institutions to refuse to cooperate with demands for immigration status information for purposes of immigration enforcement, designate safe locations on campus, and bar immigration officials from freely accessing campuses. the sanctuary campus movement has also reignited the debate about “sanctuary cities,” localities defined by their level of cooperation with federal immigration enforcement, a debate that initially gained traction after the death of california resident kathryn steinle.4 2 in this note the terms “undocumented immigrant” or “undocumented students” will be used to refer to those individuals who entered the country without legal authorization (commonly referred to as “entrants without inspection” (“ewi”s)). see david a. martin, graduated application of constitutional protections for aliens: the real meaning of zadvydas v. davis, 2001 sup. ct. rev. 47 (providing a thorough analysis of the varying levels of immigrant identification and community integration). the term will also be used to refer to those who initially had documented entry into the united states, “admitted nonimmigrants,” but then violated the limitations of such entry (e.g., overstaying a visa). id. at 95. 3 see infra part ii b and accompanying text (discussing the sanctuary campus movement as a response to trump immigration policies). 4 see infra note 83. the negative discourse surrounding sanctuary cities added to the tense atmosphere in the country surrounding immigration after the terrorist attacks on september 11, 2001. investigations revealed the participation of several individuals with immigrant visas, prompting intense discussion about immigration reform. in order to combat terrorism, several measures were taken by the federal government including the drafting and revision of multiple statutes. many of the programs implemented reflected some level of racial profiling and specifically targeted the immigrant population. for a discussion on racial profiling after september 11th see tanya e. coke, racial profiling no. 3:122] a place to call home 125 like the sanctuary city movement, the sanctuary campus movement has caused controversy between people across the political spectrum.5 as a part of his campaign platform, president trump presented himself as a tough-oncrime candidate, wholly against the presence of undocumented immigrants in the united states. during his campaign trump vowed to defund “sanctuary cities”6 and attempted to follow through on this threat by signing an executive order five days after his inauguration. this order caused much confusion and litigation, and has since been deemed unconstitutional by a federal court.7 this note will explore the sanctuary campus movement and its potential to influence the relationship between institutions of higher education and undocumented students. to understand the emergence of the movement, first it is necessary to analyze the “sanctuary city” designation and the constitutional implications of defunding such cities, with a particular focus on the potential coercive use of congress’s spending power and violation of the anticommandeering principle as expressed in several supreme post-9/11: old story new debate, in lost liberties: ashcroft and the assault on personal freedom 91–111 (cynthia brown ed., 2003). see also samuel r. gross & debra livingston, racial profiling under attack, 102 colum. l. rev. 1413 (2002). 5 while many students were rallying to have their colleges declared as sanctuary campuses, many others spoke out against the movement as an affront to federal law. government officials also spoke out against the movement; several pledging to defund any colleges designated themselves as sanctuaries; see, e.g., john binder, vanderbilt students demand ‘sanctuary campus’, breitbart (nov. 28, 2016), http://www.breitbart.com/texas/2016/11/28/vanderbilt-students-demandsanctuary-campus/; college students call for sanctuary campuses, cbn news (nov. 17, 2016), http://www1.cbn.com/cbnnews/us/2016/november/college-students-call-forsanctuary-campuses. 6 the threat to do away with so-called “sanctuary cities” is not a new one and the threat to repeal federal funding to these cities has been previously suggested. several bills have been proposed in the house to defund these cities, some as recent as 2015. see, e.g., h.r. 3002, 114th cong. §2 (1st sess. 2015); h.r. 3073, 114th cong. §2 (1st sess. 2015). 7 cty. of santa clara v. trump, no. 17–cv–00574–who, 2017 wl 5569835, at *16 (n.d. cal nov. 20, 2017). 126 columbia journal of race and law [vol. 8:1 court decisions.8 using sanctuary cities as a basis for understanding the sanctuary movement, part i of the note will assess the legal significance of the sanctuary campus movement and whether, and how, the movement can provide adequate protection to undocumented individuals. this examination will establish the humanitarian nature of the sanctuary campus movement and discuss the constitutional limitations of the trump administration’s threat to defund the cities where many of them are located. ultimately, colleges and universities that wish to assist their undocumented students must become abreast of the limitations of the sanctuary campus movement in order to provide the best protections possible for their students. part ii of this discussion will briefly outline the development of sanctuary cities and introduce the requirements of several immigration laws as they relate to such cities. part iii will assess how these laws affect undocumented immigrants, with a particular emphasis on provisions impacting undocumented students. by addressing the limitations set by such statutes as the illegal immigration reform and immigrant responsibility act of 1996 (hereafter the “iirira”)9 and the immigration and nationality act (hereafter the “ina”),10 the note will summarize the difficulties that undocumented individuals currently face. that discussion will conclude with an analysis of how the sanctuary campus movement developed on the heels of the sanctuary city movement in an effort to protect the undocumented. finally, part iv will propose possible solutions for addressing the limitations of the sanctuary campus movement and provide suggestions for solidifying its legal significance. ii. what is a sanctuary? 8 see new york v. united states, 505 u.s. 144 (1992); printz v. united states, 521 u.s. 898 (1997). 9 illegal immigration reform and immigrant responsibility act of 1996, pub. l. no. 104-208, §110 stat. 3009 (1996). 10 immigration and nationality act, pub. l. no. 99-603, §100 stat. 3359 (1986). no. 3:122] a place to call home 127 a. understanding the rise of sanctuary cities and campuses in 2009 the pew research center published “a portrait of unauthorized immigrants in the united states” which provided a detailed analysis of the undocumented immigrant population residing in the united states.11 general ages. overall, the study indicated that most undocumented immigrants were teenagers and young adults (most men were between the ages of eighteen and thirtynine) with nearly half the entire population composed of couples with children (defined as youth under the age of eighteen) and another thirteen percent also living with children.12 according to this study, children made up thirteen percent of the total undocumented immigrant population and twenty-seven percent of the children of undocumented immigrants were born outside the united states.13 educational achievement and low wages. the study showed that twenty-nine percent of undocumented immigrants between ages twenty-five and sixty-four had less than a ninth grade education and only fifteen percent had received a bachelor’s degree or higher.14 additionally, forty percent of undocumented immigrants ages eighteen to twenty-four had not completed high school, twenty-eight percent had finished high school but had no college experience, and only twenty-six percent had some college education or had received a degree.15 in comparison, the pew research center found that documented immigrants, the children of documented immigrants, and united states 11 jeffrey s. passel & d’vera cohn, a portrait of unauthorized immigrants in the united states, pew hispanic center, http://www.pewhispanic.org/2009/04/14/a-portrait-of-unauthorizedimmigrants-in-the-united-states/. 12 id. at 10–11. 13 id. 14 id. at 10. 15 id. at 11–12. 128 columbia journal of race and law [vol. 8:1 citizens were much more likely to have finished high school and received some college education or a college degree (for u.s.-born citizens fifty-eight percent between the ages eighteen and twenty-four and sixty-one percent between ages twenty-five and sixty-four; for documented immigrants these numbers were sixty percent and fifty-four percent respectively).16 poverty. the study found that around one in five undocumented immigrants (twenty-one percent) in the united states lived below the poverty line.17 in contrast, ten percent of native-born individuals and thirteen percent of documented immigrants lived in poverty.18 these figures increased when the study focused only on the number of children living in poverty, a number that was also greater for undocumented children and children born in the united states to undocumented immigrants. due to their lack of status and educational achievement, many undocumented immigrants are forced to remain in low-skilled occupations and receive wages far below the observed median for nativeborn and documented immigrant households.19 the economic condition of undocumented immigrants can only be exacerbated if undocumented parents pull their children from school for fear of deportation.20 the figures from the study provide an important picture of the lives of undocumented immigrants and illustrate the drastic impact that access to education could have on their lives. in september 2017, the pew research center reported that president obama’s deferred action for 16 id. at 10–12. 17 jeffrey s. passel & d’vera cohn, a portrait of unauthorized immigrants in the united states, pew hispanic center, at 17, http://www.pewhispanic.org/2009/04/14/a-portrait-of-unauthorizedimmigrants-in-the-united-states/. 18 id. at 17. 19 id. at 15–17. 20 ray sanchez, after ice arrests, fear spreads among undocumented immigrants, cnn (feb. 12, 2017), http://edition.cnn.com/2017/02/11/politics/immigration-roundupscommunity-fear/index.html. no. 3:122] a place to call home 129 children arrivals (“daca”) program had shielded nearly 790,000 young immigrants who were brought to the united states as children from deportation.21 through daca, undocumented students have been able to set aside some fear of deportation in order to have access to institutions of higher education and provide a better life for themselves.22 1. origin of “sanctuary city” the sanctuary movement in the united states can, in many instances, trace its primary significance back to the 1980’s,23 during which many central americans from el salvador and guatemala fled to the united states hoping to find refuge from the dangerous circumstances posed by the political landscape of their home countries.24 operating from the belief that there existed a moral duty to aid the 21 see jens manuel krogstad, daca has shielded nearly 790,000 young unauthorized immigrants from deportation, pew research center (sept. 1, 2017), http://www.pewresearch.org/facttank/2017/09/01/unauthorized-immigrants-covered-by-daca-face-uncertainfuture/; see also, gustavo lopez, key facts about unauthorized immigrants enrolled in daca, pew research center (sept. 25, 2017), http://www.pewresearch.org/fact-tank/2017/09/25/key-facts-aboutunauthorized-immigrants-enrolled-in-daca/. 22 tom k. wong, et.al., results from a nationwide survey of daca recipients illustrate the program’s impact, ctr. for american progress (july 9, 2015), https://www.americanprogress.org/issues/immigration/news/2015/07/09/11 7054/results-from-a-nationwide-survey-of-daca-recipients-illustrate-theprograms-impact/. 23 see generally susan gzesh, central americans and asylum policy in the reagan, migration policy institute (apr. 1, 2006), http://www.migrationpolicy.org/article/central-americans-and-asylumpolicy-reagan-era. see also cuison villazor, infra note 24. 24 see rose cuison villazor, what is a “sanctuary”?, 61 smu l. rev. 133 (2008).; cong. research serv., enforcing immigration law: the role of state and local law enforcement (aug. 14, 2006).; cong. research serv., state and local “sanctuary” policies limiting participation in immigration enforcement (july 10, 2015). 130 columbia journal of race and law [vol. 8:1 immigrants who sought shelter in the united states, churches and other private institutions provided temporary “places of refuge” for them.25 the word “sanctuary” initially had a positive connotation, conveying americans’ commitment to aid during a humanitarian crisis, but became tainted when used negatively in reference to individuals, institutions, and cities that were “soft on crime” or in violation of federal laws.26 by 1996, several cities had implemented policies in support of the sanctuary movement; these policies became principal identifying features of sanctuary cities.27 primarily, in cities with these so-called “non-cooperation” policies, also referred to as “don’t ask-don’t tell”28 policies, government employees “would neither ask nor report…immigration status to the federal government.”29 simply, these cities did not “require their employees … to report to federal officials aliens who may be illegally present in the country.” 30 however, non-cooperation policies have taken various forms.31 although there are some jurisdictions with express policies requiring employees to refrain from complying with demands from the federal government for information about undocumented immigrants, there are others many that simply do not require inquiry into or the collection of such information while still permitting their 25 cuison villazor, supra note 24, at 140 (discussing the origin of “sanctuaries” in the immigration context). 26 see norma stoltz chinchilla et al., the sanctuary movement and central american activism in los angeles, 36 latin am. perspectives 101, 106 (2009); cf. matt ford, why is jeff sessions attacking the police, the atlantic (apr. 21, 2017) https://www.theatlantic.com/politics/archive/2017/04/jeff-sessionssanctuary-city-nypd/524001/. 27 huyen pham, the constitutional right not to cooperate? local sovereignty and the federal immigration power, 74 u. cin. l. rev. 1373, 1384 (2006). 28 cuison villazor, supra note 24, at 142–43. 29 id. at 142. 30 cong. research serv., (aug. 14, 2006), supra note 24, at 26. 31 cuison villazor, supra note 24, at 148–49. no. 3:122] a place to call home 131 employees the choice of reporting.32 the distinction in the specificity of the policy is important when determining which jurisdictions, if not all, would be affected by defunding legislation from the federal government. public officials’ vocal opposition to sanctuary city movement efforts illustrate the negative rhetoric surrounding the movement, and often target the churches and private institutions that have supported the undocumented immigrant population.33 professor rose cuison villazor writes that the “politically motivated disapproving use of the word sanctuary has unfairly conflated legitimate state and local policies that serve local interests or policies that comply with the constitution or federal laws with legislation that is intended to supersede immigration law.”34 moreover, legitimate education and healthcare policies have been placed under the negative discourse on sanctuary policies35 —primarily through the characterization of federally prescribed provision of public education and healthcare services to all residents as efforts to aid the undocumented and undermine federal law. opponents of the sanctuary city movement made attacks on cities that allowed undocumented individuals to enroll in school, often using such policies as a defining characteristic for designating a locality as a sanctuary and as proof that such localities violated immigration law.36 32 id. (describing the differences in non-cooperation polices between new york city, new york and takoma park, maryland). 33 id. at 134–35 (discussing efforts of politicians rudy giuliani and mitt romney to distance themselves from the sanctuary designation during the 2008 presidential campaign). 34 id. at 136 (relying on michael a. olivas, immigration-related state and local ordinances: preemption, prejudice, and the proper role for enforcement, 2007 u. chi. legal f. 27, 34 (explaining that tuition benefits constitute “purely state benefits” that can be provided or withheld to undocumented college students without implicating federal immigration laws)). 35 id. at 152–53. 36 see, e.g., id. at 153 (discussing 2008 republican presidential candidate fred thompson criticisms of “‘sanctuary cities,’ which were 132 columbia journal of race and law [vol. 8:1 led by fear of detection and deportation, many immigrants have thought it necessary to remove their children from school.37 these actions deprive undocumented children and children of undocumented parents from educational benefits that would likely improve their future economic circumstances. education has long been considered a fundamental part of developing an informed american democracy.38 although undocumented individuals in the united states are guaranteed certain constitutional rights, including access to some education, undocumented immigrants live in continued fear of being ejected from the country.39 undocumented students generally belong to low described as places that allowed unauthorized immigrants to enroll their children in school or obtain hospital services”). 37 at various times in recent american history, changes in immigration law oftentimes cause fear among immigrant families. fearing deportation, immigrant families often remove their children from school to avoid detection. see, e.g., the associated press, texas: immigrants pull children from school, n.y. times (oct. 5, 2007), http://www.nytimes.com/2007/10/05/us/05brfs-school.html; the associated press, alabama: many immigrants pull children from schools, n.y. times (sept. 30, 2011), http://www.nytimes.com/2011/10/01/us/alabamamany-immigrants-pull-children-from-schools.html (noting the disappearance of hispanic children from public school districts because of a state law requiring schools to check immigration status); see also luis h. zayas & laurie cook heffron, ph.d., disrupting young lives: how detention and deportation affect us-born children of immigrants, american psychological association (nov. 2016), http://www.apa.org/pi/families/resources/newsletter/2016/11/detentiondeportation.aspx (presenting research on how the fear of detection prevents undocumented parents from enrolling children in school and using healthcare services). 38 see, e.g., san antonio indep. sch. dist. v. rodriguez, 411 u.s. 1, 30 (1973) (“ ‘the grave significance of education both to the individual and to our society’ cannot be doubted”); meyer v. nebraska, 262 u.s. 390, 400 (1923) (“the american people have always regarded education and acquisition of knowledge as matters of supreme importance”); sch. dist. of abington v. schempp, 374 u.s. 203, 230 (1963) (brennan, j., concurring) (“americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government”). 39 see consuelo arbona et al., acculturative stress among documented and documented latino immigrants in the united states, 30 hisp. j. behavioral sci. 362 (2010) (finding that undocumented immigrants reported a greater fear of deportation than documented immigrants). no. 3:122] a place to call home 133 income families struggling to afford the cost of living.40 these families often “cannot spare money for any level of tuition whether it is at a discounted rate or not.”41 fear of deportation and limited economic means therefore increase barriers placed on education. given the recognized importance of education in american society42, limiting undocumented immigrants’ access to education at any level may demonstrate a desire to exclude those individuals from american society. it is against this backdrop that the sanctuary campus movement has developed and must be understood. 2. rise of the sanctuary campus movement after the 2016 presidential election, thousands of college students and supporters took to the streets to stage demonstrations in support of the undocumented.43 students staged walkouts and protests in an effort to push their respective schools to declare themselves as “sanctuary campuses” to protect undocumented students from deportation and to protest the potential repeal of the deferred action for children arrivals (“daca”) immigration program. like “sanctuary city,” the term “sanctuary campus” does not have an official legal definition;44 nonetheless, the demonstrations were meant to pressure colleges to establish certain policies to safeguard their undocumented students.45 president trump’s immigration stance place thousands of immigrants in a state of uncertainty, including the over 700,000 young immigrants 40 see passel, supra note 17. 41 see melissa cook, a high stakes game texas can’t afford to lose: interpreting federal immigration law on in-state tuition for undocumented students, 11 tex. tech admin. l.j. 225 (2009). 42 see meyer, 262 u.s. at 400. 43 see infra part ii. 44 emily deruy, the push for sanctuary campuses prompts more questions than answers, the atlantic (nov. 22, 2016), https://www.theatlantic.com/education/archive/2016/11/the-push-forsanctuary-campuses-raises-more-questions-than-answers/508274/. 45 eduard saakashvili, so what does a sanctuary campus actually look like?, daily gazette (nov. 23, 2016), http://daily.swarthmore.edu/2016/11/23/so-what-sanctuary/. 134 columbia journal of race and law [vol. 8:1 who gained temporary relief from deportation under daca.46 the program has helped many students gain access to higher education while also relieving some of the financial burden by making them eligible to apply for federal aid with their daca-provided social security numbers.47 while several colleges have joined the movement, many others have refused to declare themselves as sanctuaries. opponents give various reasons for their position. many argue that the movement supports the violation of federal law while other institutions avoid the designation but continue to pledge their support for undocumented students.48 the movement has raised questions not only about the validity of its objectives but also about the extent of a college’s ability to protect 46 jens manuel krogstad, unauthorized immigrants covered by daca face uncertain future, pew research center (jan. 5, 2017), http://www.pewresearch.org/fact-tank/2017/01/05/unauthorizedimmigrants-covered-by-daca-face-uncertain-future/; serena marshall, what could happen to daca recipients under donald trump, abc news (nov. 16, 2016), http://abcnews.go.com/politics/happen-daca-recipientsdonald-trump/story?id=43546706. 47 see sanam malik, daca helps undocumented students access higher education, center for american progress (apr. 7, 2015), https://www.americanprogress.org/issues/immigration/news/2015/04/07/11 0558/daca-helps-undocumented-students-access-higher-education/ (discussing the beneficial impacts of daca on undocumented students’ access to higher education). 48 while many schools have adopted the “sanctuary campus” designation, others have refused to do so for a variety of reasons. see, e.g., molly parker, siu leaders say school won’t adopt ‘sanctuary campus’ designation, southern illinoisan (jan. 9, 2017), http://thesouthern.com/news/local/siu/siu-leaders-say-school-won-t-adoptsanctuary-campus-designation/ (noting that siu president randy dunn rejected the sanctuary campus title in part because it would suggest the “university would be willing to violate the law”); nicholas s. zeppos, letter to students (nov. 29, 2016), https://news.vanderbilt.edu/2016/11/29/amessage-from-chancellor-zeppos-on-university-policies-regardingsanctuary/ (explaining vanderbilt university’s stance on the sanctuary movement, noting that the university does not have the option to disobey federal law); but see hannah natanson, faust says harvard will not be a ‘sanctuary campus’, the crimson (dec. 7, 2016), http://www.thecrimson.com/article/2016/12/7/faust-sanctuary-campuspolicy/ no. 3:122] a place to call home 135 undocumented or daca students from federal action. this note will address this issue by exploring the safeguards already in place to protect undocumented individuals and how colleges can expand on these protections in order to provide meaningful assistance. in early september 2017, president trump announced via twitter that he would be ending the daca program, thus putting its beneficiaries at risk of deportation.49 this announcement caused the united states citizenship and immigration services (“uscis”) to refuse any initial or renewal daca applications.50 despite that sudden declaration, president trump has since met with democratic officials to devise a deal to protect these individuals from deportation.51 it is the hope of many that these discussions produce positive results for the undocumented whose fate is now uncertain. in light of these events, it is of the upmost importance that sanctuary campuses devise proper mechanisms within the bounds of the law to assist their undocumented students, especially those who are daca recipients, from falling prey to deportation. it is only by finding these proper mechanisms that the sanctuary campus movement can truly protect students. similar to sanctuary cities, colleges and universities that establish sanctuary campus status also face threats of 49 memorandum on rescission of deferred action for childhood arrivals (daca), department of homeland security (sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. 50 see consideration of deferred action for childhood arrivals (daca), u.s. citizenship and immigration services, https://www.uscis.gov/archive/consideration-deferred-action-childhoodarrivals-daca. 51 ed o’keefe & david nakamura, trump, top democrats agree to work on deal to save ‘dreamers’ from deportation, washington post (sept. 14, 2017), https://www.washingtonpost.com/news/powerpost/wp/2017/09/13/trumptop-democrats-agree-to-work-on-deal-to-savedaca/?utm_term=.bee4894dae67. 136 columbia journal of race and law [vol. 8:1 defunding from legislators.52 depending on the percentage of funds that would be endangered, some colleges may have no choice but to refuse the “sanctuary campus” designation. this does not, however, mean that these colleges would be forced to implement federal immigration policies as there are still certain laws in place that protect student data.53 while the moral symbolism of the sanctuary campus movement is perhaps clear to most (the demonstration of solidarity and arguing the importance of education), it is unclear what the legal significance of declaring sanctuary campus status will be both for the colleges that make such a declaration and the undocumented students who choose to attend. b. law behind the movement in order to fully understand the sanctuary movement, a discussion of the different laws affecting current policing of undocumented immigrants is imperative. in 1996, congress passed the illegal immigration reform and immigrant responsibility act of 1996 (iirira). the iirira provides that: notwithstanding any other provision of federal, state, or local law, no state or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the immigration and naturalization service information regarding the immigration status, lawful or unlawful, of an alien in the united states. 8 u.s.c. § 1373.54 according to the senate report, the statute intended 52 see infra part ii b; see also sophie quinton, ‘sanctuary campuses’: controversy blown out of perspective, pew charitable trusts (dec. 16, 2016), http://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2016/12/16/sanctuary-campuses-controversyblown-out-of-perspective. 53 see infra part ii b. 3. 54 pub. l. 104-208, § 110 stat. 3009 (1996) title vi § 642 (codified as 8 u.s.c. § 1373). no. 3:122] a place to call home 137 to give state and local officials the authority to communicate with the immigration and naturalization service (ins) regarding the presence, whereabouts, and activities of undocumented immigrants…[and was] designed to prevent any state or local law, ordinance, executive order, policy, constitutional provision, or decision of any federal or state court that prohibits or in any way restricts any communication between state and local officials and the ins.55 this section of the iirira was particularly important during the sanctuary city movement as it greatly restricted any proactive methods cities or states could use to protect undocumented immigrants by setting the boundaries of what policies were possible. while the iirira does not require states to provide information to the federal government, it does prohibit state or local government action to actively impede voluntary communication with federal agencies. the act was in part an answer to policies implemented around the country expressly prohibiting the transfer of information regarding immigration status to the federal government and its agencies.56 many cities and states argued that noncooperation policies served to protect the confidentiality and safety of citizens within local borders. without them, they feared undocumented individuals would be less likely to trust the police and report crime.57 the current sanctuary 55 see h.r. rep. no. 104-469 at 277 (1996) https://www.congress.gov/104/crpt/hrpt469/crpt-104hrpt469-pt1.pdf (explaining that the iirira was designed to “prevent any state or local law, ordinance, executive order, policy, constitutional provision, or decision of any federal or state court that prohibits or in any way restricts any communication between state and local officials and the ins”). 56 cong. research serv., (aug. 14, 2006), supra note 24, at 26 (noting a list of cities with sanctuary policies); cong. research serv., (july 10, 2017), supra note 24, at 9 (noting that some jurisdictions used either formal or informal policies to respond to the requirements of iirira). 57 huyen pham, the constitutional right not to cooperate? local sovereignty and the federal immigration power, 74 u. cin. l. rev. 1373, 138 columbia journal of race and law [vol. 8:1 campus movement urges colleges to similarly limit cooperation with federal immigration enforcement. and fortunately, students are guaranteed a level of privacy from disclosure of their personal data under the family educational rights and privacy act (“ferpa”), potentially making limited cooperation more plausible.58 protections under ferpa may indeed indicate refusal to transfer information on the immigration status of undocumented students as a lawful practice by college officials, at least in certain circumstances. this next section will further examine the iirira and other federal immigration laws, the right or lack thereof of undocumented children to have access to education, and the legal obstacles surrounding the issue. 1. undocumented children and access to education in 1982, the supreme court held that all students, regardless of their immigration or citizenship status, should have access to public education.59 justice brennan explained in plyler v. doe that undocumented children should not be punished for their parents’ conduct and the court found unconstitutional a texas statute that threatened school funding and allowed local schools to deny enrollment to undocumented students. the court found that the texas statute “impose[d] a lifetime hardship on a discrete class of children not accountable for their disabling status.”60 in reaching this conclusion, the court discussed the restrictions imposed by the equal protection clause of the fourteenth amendment,61 which prohibits discriminatory practices and class-based state action.62 having found that the equal protection clause applies to all individuals within a state’s 1399 (2006) (stating that undocumented immigrants “may refuse to report crimes or participate in criminal investigations, for fear of the immigration consequences”). 58 see infra part i b. 2. 59 see plyler v. doe, 457 u.s. 202, 226 (1982) (holding that states could not deny public education to undocumented children in grades k-12). 60 id. at 223. 61 u.s. const. amend. xiv. 62 see plyler, 457 u.s. at 216–22 (applying a rational basis review to the texas legislation). no. 3:122] a place to call home 139 jurisdiction regardless of immigration status, the court held, under a rational basis review, that its restrictions extend protection to undocumented students against discriminatory state practice. notwithstanding its holding in plyler, the court acknowledged, as it had in previous cases, that there is no fundamental right to a public education. there is only recognition of its importance in maintaining a democracy. 63 in addition, the court’s opinion in plyler was limited to elementary school education.64 the absence of a national consensus on access to higher education aids the confusion surrounding the sanctuary campus movement and the right of undocumented students. currently, only alabama, south carolina, and georgia ban the enrollment of undocumented students in public colleges.65 however, there are still private institutions within these three states that do allow undocumented students to enroll. 2. legal obstacles to higher education congress reestablished its stance on undocumented immigration through the iirira. in section 505 of the iirira (effective 1998) congress provided that: notwithstanding any other provision of law, an alien who is not lawfully present in the united states shall 63 see meyer v. nebraska, 262 u.s. 390, 400 (1923) (finding that a nebraska statute that prohibited foreign language instruction was unlawful); san antonio indep. sch. dist. v. rodriguez, 411 u.s. 1, 35 (1973) (finding that texas education finance system violated the equal protection clause of the fourteenth amendment for discriminating among districts). 64 457 u.s. 202 at 226 (stating the absence of a national policy supporting state denial of elementary educational to undocumented immigrants). 65 see h.b. 56, reg. sess. §8 (al. 2011); h.b. 4400, 117th leg., 2nd reg. sess. (s.c. 2008); university system of georgia’s board of regents policy manual, policy 4.1.6; see also matt vasilogambros, the folly of under-educating the undocumented, the atlantic (mar. 16, 2016), http://www.theatlantic.com/politics/archive/2016/03/the-folly-of-undereducating-the-undocumented/473877/. 140 columbia journal of race and law [vol. 8:1 not be eligible on the basis of residence within a state (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the united states is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.66 similarly, under section 1611 of the personal responsibility and work opportunity reconciliation act of 1996 (hereinafter “prwora”) congress denied undocumented students eligibility to receive federal financial aid.67 the prohibitions on in-state tuition benefits and federal financial aid make it more difficult for undocumented students to obtain higher education since they are more likely than other students to be from low-income families and unable to pay out-of-pocket costs.68 for that reason, restricting tuition benefits available to undocumented students through the iirira and prwora may have resulted in holistic bans to higher education for undocumented students who were otherwise unable to afford tuition. despite the federal restrictions on in-state tuition, certain states over recent years have allowed undocumented students to be eligible for in-state tuition rates.69 new york, for example, allows undocumented students to obtain financial assistance by redefining its state residency requirement. in-state tuition benefits in the state are available to individuals who “attended an approved new york high school for two or more years, graduated from an approved new york high school and applied for attendance at an institution or educational unit of the state university 66 8 u.s.c. § 1623. 67 8 u.s.c. § 1611 (limiting eligibility for federal financial aid in post-secondary education to persons classified as “qualified alien[s]”). 68 see passel, supra note 17. 69 see in-state tuition and unauthorized immigrant students, national conference of state legislatures (feb. 19, 2014), http://www.ncsl.org/research/immigration/in-state-tuition-andunauthorized-immigrants.aspx (providing a list of state policies on in-state tuition for undocumented students). no. 3:122] a place to call home 141 within five years of receiving a new york state high school diploma….”70 by redesigning its residency requirement, new york, and states with similar provisions, make it possible to both abide by the federal law and provide access to higher education. in addition to the iirira, the immigration and nationality act (“ina”) imposes a criminal penalty on any individual or entity that “harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, [undocumented immigrants] in any place, including any building or any means of transportation.”71 those who protest the existence of “sanctuary cities” argue that jurisdictions and institutions that implement policies providing safe havens for undocumented immigrants are in criminal violation of the requirements of ina, iirira, or both, through their non-cooperation policies.72 if this critique were to form part of the sanctuary campus analysis, the question would be to determine whether sanctuary campuses would be deemed in violation of ina for “harboring” undocumented students because of noncompliance with immigration requests. the answer to this question may depend on the specific policies implemented by colleges or universities. the characteristics of each individual school’s sanctuary policies will determine whether they are found to be in violation of these federal laws and unable to protect the students they seek to support. with respect to students’ personal information, ferpa73 protects the privacy of student information by 70 n.y. educ. law § 355 (mckinney). 71 8 u.s.c. § 1324(a)(1)(a)(iii). see also 8 u.s.c.a. § 1644. 72 see, e.g., gregg jarrett, will donald trump channel ronald reagan to put an end to sanctuary cities? fox news (nov. 18, 2016), http://www.foxnews.com/opinion/2016/11/18/gregg-jarrett-will-donaldtrump-channel-ronald-reagan-to-put-end-to-sanctuary-cities.html. 73 ferpa restrictions apply to certain educational agencies and institutions receiving federal funds. the protections of ferpa apply only to students as defined by 20 u.s.c. § 1232g(a)(6). under section 1232g(a)(6), ferpa does not apply to applicants to an institution not in attendance at such institution. see also 34 c.f.r. §§ 99.1, 99.3; tarka v. 142 columbia journal of race and law [vol. 8:1 prohibiting “nonconsensual disclosure of student educational records to any party besides the student or the parents of a minor student.”74 ferpa “generally prohibits the improper disclosure of personally identifiable information derived from education records” unless the eligible student or their parent has given written consent.75 to determine whether an improper disclosure has occurred, the act provides specific situations where consent is or is not required by an eligible student76 or his or her guardian. despite the safeguards that are put in place, the protections afforded by ferpa are limited to “students” as defined under the act.77 furthermore, ferpa does not prohibit institutions from disclosing the personal information of students applying for or receiving federal financial aid.78 the act therefore leaves the undocumented individuals who apply but are unable to gain admission to institutions of higher education unprotected; the “fact that these students do not qualify for either federal student aid or the in-state tuition rates places a major financial burden on the private higher education franklin, 891 f.2d 102 (5th cir. 1989) (holding that plaintiff, who was denied admission, arguing for a right to access to his admission file and recommendation letters was not a student in attendance at the university of texas at austin for purposes of ferpa). 74 tamu k. walton, protecting student privacy: reporting campus crimes as an alternative to disclosing student disciplinary records, 77 ind. l.j. 143, 147 (2002). 75 u.s. department of education, ferpa general guidance for students, https://www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html. 76 20 u.s.c. § 1232g(d) requires the consent of the student rather than the parent when the student attains eighteen years of age or when the student attends a postsecondary institution. when either of these conditions occurs the student is considered an eligible student. 77 20 u.s.c. § 1232g(a)(6) provides: for the purposes of this section, the term “student” includes any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution. 78 20 u.s.c. § 1232g(b)(1)(d) provides that disclosure of education records or personally identifiable information pursuant to an “application for, or receipt of, financial aid” does not place an institution in violation of ferpa. no. 3:122] a place to call home 143 institutions.”79 the lack of assurance that immigration status will not be disclosed through an application for federal financial assistance may further deter undocumented students from pursuing a college education. lastly, ferpa contains several exceptions under which disclosure of student information (such as directory information)80 absent consent is permitted, such as disclosure to comply with federal regulations or subpoenas.81 these lapses in the protections afforded by ferpa also place undocumented students at risk. it is important to note where these federal laws fail to protect the interests of these students so that universities and other institutions that pledge to protect them look into their internal policies to formulate solutions that do. many are worried about the impact that immigration policies proposed by president trump will have on undocumented students’ access to education. “sanctuary cities” may be particularly vulnerable if the new administration is able to overcome constitutional barriers (especially regarding limitations on the spending clause) in its attempts to defund them. defunding these cities may 79 see, e.g., laura yates, plyler v. doe and the rights of undocumented immigrants in higher education: should undocumented students be eligible for in-state college tuition rates, 82 wash. u. l. rev. 585 (2004). 80 20 u.s.c. § 1232g(a)(5)(a) provides: for the purposes of this section the term “directory information” relating to a student includes the following: the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student. under ferpa institutions are permitted to disclose “directory information” without consent of the student or parent/guardian but requires notice and a reasonable period for the student or guardian to inform the institution that the information should not be released. 20 u.s.c. § 1232g(a)(5)(b). 81 see, e.g., 34 c.f.r. § 99.31(9) (2002); 20 u.s.c. § 1232g(b), (j). 144 columbia journal of race and law [vol. 8:1 greatly impact those public colleges and universities that rely on federal funds and permit the enrollment of undocumented students. there is hope, however, in the new york example. economically strong cities like new york will be able to avoid violating iirira by revising residency policies, and may fare better than other more vulnerable cities if they are able to rely on their own funding mechanisms to allow them to continue accepting the undocumented without fearing a loss of revenue. iii.the sanctuary city movement and the push for sanctuary campuses a. threats facing the sanctuary city movement as already noted, the sanctuary city movement began as a response to the great number of undocumented immigrants fleeing violence in central american countries.82 while sanctuary cities have never had an uncontested existence, recent developments have led to a resurgence of negative discourse.83 there is no legal definition of a sanctuary city, but the determination is generally dependent on whether a given city implements policies and laws regarding the level of cooperation with federal enforcement of immigration laws.84 both state and federal government 82 see cuison villazor, supra note 24, at 135. 83 after the death of california resident kathryn steinle in 2015, information that the suspect was juan lopez-sanchez, an undocumented immigrant from mexico several times deported, intensified the debate surrounding the treatment of undocumented immigrants. knowledge that lopez-sanchez was able to travel freely in california because of a noncooperation policy in san francisco sparked intense discussion on the existence of so-called “sanctuary cities”. see christina littlefield, sanctuary cities: how kathryn steinle’s death intensified the immigration debate, l.a. times (july 24, 2015), http://www.latimes.com/local/california/la-me-immigration-sanctuarykathryn-steinle-20150723-htmlstory.html. the presidential campaign and election of donald trump also served as a catalyst for negative discourse against sanctuary cities. 84 the ohio jobs & justice pac (ojjpac) provides a list of cities with sanctuary status. ohio jobs & justice pac, http://www.ojjpac.org/sanctuary.asp. no. 3:122] a place to call home 145 officials have come out against the classification of sanctuary cities, vowing to restrict or repeal funding to those cities.85 in august 2017, cities and counties in various parts of texas brought action against the state challenging the constitutionality of senate bill 4 (hereinafter “sb 4”), a piece of anti-sanctuary city legislation.86 specifically, the plaintiffs filed motions for preliminary injunction against the state’s planned legislation arguing that the conditions imposed were unconstitutional or preempted by congress. sb 4 imposed restrictions on local authorities relating to: immigration status inquiries, sharing and maintaining immigration status information, immigration enforcement assistance and granting immigration enforcement officers access to jails and would also impose fines for noncooperation.87 the district court of the western district of texas granted preliminary injunction finding multiple parts of the law potentially unconstitutional. for example, the court held that sb 4’s requirement that local authorities comply with all immigration detainer requests from u.s. immigration and customs enforcement (hereinafter “ice”) could potentially result in inadequate assessment of probable cause by local police and therefore violate the fourth amendment.88 in addition, the district court found that the mandates of sb 4 “upset the delicate balance between federal enforcement and local cooperation.”89 threats from the federal government to cancel funding call into question the constitutional limits, particularly congress’s spending power. article 1 of the constitution provides that congress has the power to tax 85 spencer e. amdur, the right of refusal: immigration enforcement and the new cooperative federalism, at 5 (aug. 15, 2016) 35 yale l. & p. rev. (forthcoming). 86 city of el cenizo v. state, no. sa–17–cv–404–olg, 2017 wl 3763098 (w.d. tex. aug. 30, 2017). 87 id. at *5. 88 id. at *35. 89 id. at *40. 146 columbia journal of race and law [vol. 8:1 and spend for the general welfare of the country.90 this power is subject to restriction as determined by the development of constitutional jurisprudence. it has been well established that the constitution prohibits congress from commandeering the states and forcing the implementation of federal regulatory schemes.91 in both new york v. united states and printz v. united states, the supreme court struck down attempts by the federal government to compel states to enforce regulatory programs. however, the court also left open that while congress cannot force states to enact programs, the federal government may use incentives to encourage state cooperation with such federal programs.92 in south dakota v. dole,93 for example, the supreme court held that congress’s act of conditioning the receipt of federal highway funds on the state’s adoption of a minimum drinking age was not an abusive or coercive use of the congress’s spending power. this case was instrumental in setting limits on congressional power and was also key in determining constitutionally acceptable ways in which congress could encourage state action. the current threats to defund sanctuary cities for refusing to comply with federal demands for immigration status information necessarily implicate an analysis of congress’s spending power. as many cities prepare for the possibility of such policies, it is important to address the potential obstacles that the federal government would face with the implementation of such policy.94 90 u.s. const. art. i, § 8, cl. 1. 91 see new york v. united states, 505 u.s 144 (1992) (holding that the federal government could not compel the state to implement a program for establishing the disposal and title of radioactive waste); printz v. united states, 521 u.s. 898 (1997) (holding that congress could not force state officers to complete background checks for gun purchases). 92 spencer e. amdur, the right of refusal: immigration enforcement and the new cooperative federalism, at 7 (aug. 15, 2016) 35 yale l. & p. rev. (forthcoming). 93 south dakota v. dole, 483 u.s. 203 (1987). 94 see, e.g., octavio blanco, sanctuary cities risk billions in defiance of trump, cnn (nov. 19, 2016), http://money.cnn.com/2016/11/19/news/economy/sanctuary-cities-trumpno. 3:122] a place to call home 147 1. federal defunding of sanctuary cities may violate congress’s spending power. the constitutionality of a federal law defunding states, municipalities, or various public institutions depends on the manner in which congress goes about seeking to deny funding. under dole, in order for a restrictive federal funding policy to be considered a reasonable exercise of congressional spending power, the measure must be in pursuit of the general welfare, congress must state the objective unambiguously so that states can make a proper choice of whether or not to risk defunding, and the condition upon which funding relies should not become so oppressive that it is coercive.95 in dole, the threatened funds constituted only five percent of the highway budget and less than one percent of the state’s overall budget. given these numbers, the court found the statute to be a reasonable and non-coercive use of the spending power. assuming that the limits placed on congress’s spending power with respect to states also apply when local city funding is being threatened, these factors become increasingly important in finding ways to protect the undocumented.96 whether a federal defunding measure targeting sanctuary cities would be considered constitutional would depend in part on the percentage of funding that would be at risk, as was seen in dole. apart from the percentage limitation, any defunding measure would also need to fulfill the other two conditions set out in dole (the measure must be in pursuit of the general welfare and funding/; lauren etter & tim jones, sanctuary-city mayors gird for fight as trump threatens budgets, bloomberg (nov. 16, 2016), http://www.bloomberg.com/politics/articles/2016-11-16/sanctuary-citymayors-gird-for-fight-as-trump-threatens-budgets; the associated press, ‘sanctuary cities’ vow to protect immigrants from trump plan, nbc news (nov. 16, 2016), http://www.nbcnews.com/news/us-news/sanctuarycities-vow-protect-immigrants-trump-plan-n684551. 95 south dakota v. dole, 483 u.s. 203 (1987). 96 spencer e. amdur, the right of refusal: immigration enforcement and the new cooperative federalism, at 50 (aug. 15, 2016) 35 yale l. & p. rev. (forthcoming). 148 columbia journal of race and law [vol. 8:1 congress’s objective must be unambiguous so as to give the state or city a proper choice). the latter condition, that of the existence of a real choice ties into the percentage limitation. where threats have been made to completely defund cities, the percentage of the budget at stake (and the ability to specify which sectors of city funding to reduce) will determine whether congressional action is coercive and therefore unconstitutional.97 if a complete federal defunding composed a large enough percentage of the city budget, one presumably higher than in dole, then the congressional action would likely be coercive. this percentage distinction was key in the supreme court’s ruling in national federation of independent businesses v. sebelius,98 where the court found threats to cut federal funding in states not participating in the new insurance program to be extremely coercive due to the large budgetary percentage implicated. under sebelius the court implied that a budget threat of ten percent or more would be too coercive to states. the question then is whether this percentage is also considered coercive when it comes to cities, or conversely, whether some new level would need to be devised. if courts do apply this standard to cities, it should follow that a total defunding measure may likely be held coercive as it was in sebelius. 97 for a comprehensive analysis of federal funding in sanctuary cities please see adam andrzejewski and thomas w. smith, federal funding of america’s sanctuary cities, open the books (feb. 2017), https://www.openthebooks.com/assets/1/7/oversight_federalfundingofam ericassanctuarycities.pdf (providing detailed analysis of federal funding to major sanctuary cities including case studies and a breakdown of the several city departments receiving federal grants and direct funding in new york and san francisco). see also federal grants to state and local government, congressional budget office (mar. 2013), https://www.cbo.gov/sites/default/files/113th-congress-20132014/reports/03-05-13federalgrantsonecol.pdf (explaining federal funding policies and the mechanisms for determining how much aid to provide and how it must be distributed). 98 567 u.s. 519 (2012) (holding that congress threat to fully defund states that did not expand health services was a coercive use of the spending power). no. 3:122] a place to call home 149 since president trump’s inauguration in january 2017, the administration has attempted to defund sanctuary cities. following the imposition of additional conditions on the provision of federal grants under the edward byrne memorial justice assistance grant program (the “byrne jag grant”), the city of chicago brought suit for injunction against the attorney general of the united states, jefferson sessions, iii.99 specifically, these new conditions required local authorities to: pre-notify federal agents about the release from correctional facilities of individuals suspected of immigration violations, and also grant immigration agents access to city detention facilities and individuals detained therein.100 on september 15, 2017, the district court of the northern district of illinois granted the city of chicago a preliminary injunction.101 specifically, the court found that the attorney general did not possess congressional authority to impose the new notice and access conditions on the byrne jag grant.102 the court did not, however, opine on the constitutionality of the two conditions with respect to congress’s spending power since the authority to impose them had not been delegated to the attorney general.103 thus the question of what specific percentage of a city’s budget would imply coercive federal action remains unsettled. 2. implications for state sovereignty: federalism under the tenth amendment although congress is allowed to incentivize states to act in accordance with federal policy, the constitution is clear that states reserve some autonomy to govern. the constitution provides that any rights not given to congress, 99 compl. for injunctive and declaratory relief, city of chicago v. sessions, no. 1:17-cv-5720, 2017 wl 3386388 (n.d. ill. aug. 7, 2017). 100 city of chicago v. sessions, no. 17 c 5720, 2017 wl 4081821, at *1 (n.d. ill. sept. 15, 2017). 101 id. at *14 (noting also that its holding and analysis of the grant conditions in this case apply nationwide). 102 id. at *7. 103 id. 150 columbia journal of race and law [vol. 8:1 or prohibited from the states, are reserved to the states or the people.104 while the tenth amendment does not completely shield states from federal regulation,105 it allows for a degree of sovereignty in determining state policy, especially when it pertains to general welfare. still, courts have allowed some federal regulation of states. for example, the second circuit has upheld the constitutionality of the iirira as a valid exercise of congressional authority. 106 additionally, where a federal demand on a state is ministerial in nature the supreme court has considered that there may be no implication of the anti-commandeering principle if the requested information is generally possessed by the states.107 the lack of an acceptable legal definition of “sanctuary city” presents a challenge for the “ministerial” defense. because there is no clear definition of what a “sanctuary city” is and since cities labeled as such vary in their policies and in their level of cooperation with federal immigration enforcement,108 a defunding policy may in fact force some cities and states to implement federal policies in order to receive funding. this would be contrary to the anticommandeering principle. for instance, where a state would be forced to collect immigration information they otherwise would not have (for example, if they previously operated under a “don’t ask-don’t tell” policy) in order to obtain federal grants, it could be considered the implementation of a new federal program—making concern for state sovereignty of utmost importance to reviewing courts. a measure to defund a sanctuary city in such circumstance should then be 104 u.s. const. amend. x. 105 garcia v. san antonio metro. transit auth., 469 u.s. 528 (1985). 106 see e.g., city of new york v. united states, 179 f.3d 29, 35 (2nd cir. 1999) (finding iirira’s prohibitions on restricting voluntary exchange of immigration information to be within congress’s authority). 107 see printz v. united states, 521 u.s. 898 (1997). 108 these variations range from collecting immigration information in the normal process of business but not requiring the transfer of information, to “don’t ask-don’t tell” policies which do not collect information to begin with. no. 3:122] a place to call home 151 considered unconstitutional for forcing the city to participate in the federal regulatory program. federal courts have expressed this very opinion during the past year. shortly after being inaugurated, president trump signed executive order 13768109 giving discretion to both the attorney general and the secretary of the department of homeland security to deny federal grants to “sanctuary jurisdictions.”110 in april 2017, the county of santa clara filed suit for a preliminary injunction against the president’s executive order and was granted such relief by the district court of the northern district of california.111 finding in favor of the santa clara, the court held section 9(a) of the executive order in violation of the principle of separation of powers as well as the fifth and tenth amendments.112 the granting of a nationwide permanent injunction by the same district court followed this temporary relief on november 20, 2017.113 in doing so, the court made clear that the executive order attempted to “use coercive methods to circumvent the tenth amendment’s direct prohibition against conscription” which is a violation of the anti-commandeering principle.114 notably, the court focused heavily on the administration’s improper use of congress’s exclusive spending power by placing conditions on funding congress had repeatedly declined to apply.115 while the court’s ruling in this case is based on action taken by the executive branch, a similar measure imposed by congress itself may likely face constitutional challenges with respect to potential commandeering effects. 109 enhancing public safety in the interior of the united states, exec. order no. 13,768, 82 fed. reg. 8799 (jan. 25, 2017). 110 id. at 8801. 111 cty. of santa clara v. trump, 250 f. supp. 3d 497 (n.d. cal. 2017). 112 id. at 531–32, 534. 113 cty. of santa clara v. trump, no. 17–cv–00574–who, 2017 wl 5569835, at *16 (n.d. cal nov. 20, 2017). 114 id. at *14. 115 id. at *12. 152 columbia journal of race and law [vol. 8:1 b. the sanctuary campus movement and its requests 1. defining the objectives of the sanctuary campus movement each year, approximately 65,000 undocumented students graduate from high school in the united states. 116 unfortunately, these students do not have the same access to higher education that other documented immigrants and native-born individuals enjoy.117 fearing the risk of deportation and the inability to pay college expenses, most undocumented students must forfeit the opportunity to further their education and become more economically stable.118 while no federal statute explicitly prohibits undocumented students from being admitted to colleges, provisions of several statutes can increase the costs and risks of attendance.119 to address this problem, previous administrations implemented several policies granting undocumented students legal status or allowing them to obtain federal identification.120 the immigration policies 116 sanam malik, daca helps undocumented students access higher education, center for american progress (apr. 7, 2015), https://www.americanprogress.org/issues/immigration/news/2015/04/07/11 0558/daca-helps-undocumented-students-access-higher-education/. 117 id. 118 laura yates, plyler v. doe and the rights of undocumented immigrants to higher education: should undocumented students be eligible for in-state college tuition rates? 82 wash. u. l. q. 585 (2004). 119 see, e.g., 8 u.s.c. § 1623, supra note 66; the personal responsibility and work opportunity act of 1996 (“prwora”) also prohibit the provision of federal financial aid to undocumented students, limiting eligibility to qualified aliens. 8 u.s.c. §§ 1611, 1641; the higher education act (“hea”) of 1965 limits the eligibility for federal financial aid to documented u.s. residents. 20 u.s.c. § 1091(a); pub. l. 89-329. 120 the development, relief, and education for alien minors (“dream”) act and deferred action for childhood arrivals (“daca”) were proposed to address the difficulties faced by undocumented immigrants in the united states. the dream act, if approved would have given lawful status to undocumented individuals by creating a path to legalization and make it easier for them to attend college by repealing in-state tuition restrictions created by the iirira. michael a. olivas, iirira, the dream act, and undocumented college student residency, 30 j.c. & u.l 435 no. 3:122] a place to call home 153 proposed by the trump administration threaten to, among other things, repeal daca in order to fulfill his promise to deport millions of undocumented immigrants from the united states.121 the sanctuary campus movement like the sanctuary city movement sees the possible deportation of millions of individuals as antithetical to american values. the sanctuary campus movement has been a united effort to rally against potential immigration policy changes that would exclude undocumented immigrants from campuses and make them subject to deportation. following the plyler v. doe122 decision in 1982, it was quite clear that undocumented students, like american citizens, would have access to primary and secondary public education. legal immigration status could not be a requirement for admission to public schools.123 however, whether the plyler right of access to education applied to institutions of higher education was not clarified, making the position of undocumented students in these institutions more precarious. these students can be barred from admission based on their undocumented status, and even if admitted they also are not afforded the same protections as other students. the goals of the sanctuary campus movement vary from campus to campus but each localized movement includes a call for colleges to limit cooperation with federal immigration enforcement.124 the sanctuary campus (2003-2004). daca, currently facing possible repeal, provides temporary relief from deportation for eligible individuals and the opportunity to obtain a short-term work-permit. 121 donald j. trump for president, immigration, available at https://www.donaldjtrump.com/policies/immigration 122 457 u.s. 202 (1982). 123 hispanic interest coal. of ala. v. alabama, 691 f.3d 1236, 1249–50 (11th cir. 2012) (holding as unlawful an alabama law mandating the procurement of birth certificates for admission to public schools. the court also found that the purpose of the law was to deter enrollment of undocumented students). 124 see catherine e. shoichet & azadeh ansari, ‘sanctuary campus’ protests target trump immigration policies, cnn politics (nov. 154 columbia journal of race and law [vol. 8:1 movement is a humanitarian effort that recognizes and stays true to the impetus behind the sanctuary cities movement of the 1980s125 through supporting the right to live and learn. as the movement’s demonstrations became more frequent at the end of 2016, the media and government officials took notice. the attention has bolstered debates over the place of undocumented immigrants in the country and about steps institutions of higher education can take to help students (whether dreamers, daca beneficiaries, foreign students or otherwise). the executive orders signed by president trump during his first week in office targeting what the new administration determined was a serious immigration problem126 have propelled the significance of this issue. as with sanctuary cities, sanctuary campuses face similar threats to funding by federal and state entities.127 16, 2016), http://www.cnn.com/2016/11/16/politics/sanctuary-campusprotests/. 125 cuison villazor, supra note 24, at 138. 126 enhancing public safety in the interior of the united states, exec. order no. 13,768, 82 fed. reg. 8799 (jan. 25, 2017) (describing sanctuary jurisdictions as those which “willfully violate federal law in an attempt to shield aliens from removal from the united states.” the order refers extensively to sanctuary jurisdiction compliance with 8 u.s.c. 1373 described supra part i, b. the order goes further in restricting the applicability of the privacy act of 1974, 5 u.s.c. § 552a, (which protects personally identifiable information held by federal agencies) to citizens and permanent residents. if this measure were to apply to undocumented students they would be more vulnerable to potential deportation especially if the order were to supersede the protections offered to students under ferpa. since its implementation the order has been reformed and deemed unconstitutional by several federal courts.) https://www.whitehouse.gov/the-press-office/2017/01/25/presidentialexecutive-order-enhancing-public-safety-interior-united. 127 on december 16, 2016, the “no funding for sanctuary campuses act” was proposed in the house by congressman duncan hunter. the proposed legislation is meant as an amendment to the higher education act of 1965 and would prohibit the provision of funds to colleges that violate immigration laws. the proposed legislation also puts forth a potential legal definition for “sanctuary campus” and, if passed, would place the power to determine sanctuary campus status in the hands of the department of homeland security (continuing the trend of making all immigration policy a matter of national security). h.r. 6530 114th congress (2015-2016); see also patrick svitek, abbott vows to cut funding no. 3:122] a place to call home 155 some claim that the controversy surrounding sanctuary campuses is misguided and misleading with respect to current laws,128 and that the current furor may give the impression that an institution using the term “sanctuary campus” will “harbor” undocumented immigrants in violation of the iirira and ina or that institutions can provide complete protection against deportation.129 these commentators question the necessity of the sanctuary campus designation, arguing that there is little that colleges can do, or that what the movement requests is already addressed in the administrative policies of many institutions. opponents of the movement argue that the pressure to designate sanctuary campuses is merely a reflection of a lack of respect for federal law.130 with respect to the overly expansive view of sanctuary campuses as disrespectful to federal law, it is important to constantly contextualize and analyze the requests of each individual school before making this sort of general pronouncement, as each school’s approach and policy differ, and has a history outside of this recent moniker. among the several demands of the sanctuary campus movement are the following: (1) that an institution of higher education refuse access to immigration officials on campus without a warrant, (2) that an institution refuse to participate in any voluntary sharing of information with for “sanctuary campus” schools, texas tribune (dec. 1, 2016), https://www.texastribune.org/2016/12/01/abbott-vows-cut-fundingsanctuary-campus-schools/. 128 see sophie quinton, controversy over “sanctuary” campuses is misleading, legal analysts say, pbs newshour (dec. 17, 2016), http://www.pbs.org/newshour/rundown/sanctuary-campus-controversial/. 129 see discussion of the immigration and nationality act, supra note 71. 130 attacks against sanctuary campuses have generally phrased their attacked by stating that such institutions place themselves at risk for violating federal law and that compliance with immigration enforcement would be against such designation. see, e.g., fox news insider, ga lawbreaker: ‘sanctuary campuses’ should not receive taxpayer money (dec. 2, 2016), http://insider.foxnews.com/2016/12/02/ga-lawmakersanctuary-campuses-should-not-receive-taxpayer-money 156 columbia journal of race and law [vol. 8:1 immigration officers or agencies, to the extent possible under the law, and (3) that institutions prohibit inquiry into or the recording of an individual’s immigration status.131 these requests will be analyzed in turn. the critical issue is whether taking any or all of these actions would place an institution in violation of federal immigration laws such as the iirira or the ina.132 2. analyzing sanctuary campus policy requests immigration officials’ access to campuses. among the main policy demands of the sanctuary campus movement is restricting immigration officials’ access to campuses. in requesting that this action be taken by their respective institutions, proponents of the sanctuary campus movement make the assumption that (a) immigration officers have access to campus without the use of warrants, and (b) that immigration raids would occur on a college campus. to understand the impact that such a restriction would have on a college campus it is imperative that we understand the reach immigration officials have. particularly, we must understand whether immigration officials can indeed gain access to college campuses without first obtaining warrants and whether they would conduct raids with or without such warrants. in 2011, the director of the immigration and customs enforcement agency signed and distributed a memorandum to field office directors and agents regarding immigration 131 see, e.g., emily deruy, the push for sanctuary campuses prompts more questions than answers, the atlantic (nov. 22, 2016), https://www.theatlantic.com/education/archive/2016/11/the-push-forsanctuary-campuses-raises-more-questions-than-answers/508274/; eduard saakashvili, so what does a sanctuary campus actually look like? daily gazette (nov. 23, 2016), http://daily.swarthmore.edu/2016/11/23/so-whatsanctuary/ (listing various characteristics requesting in a petition to declare swarthmore college a sanctuary campus) 132 see infra part ii b. 2. for a discussion on challenges faced by the “sanctuary campus” movement. no. 3:122] a place to call home 157 enforcement in “sensitive locations.”133 the purpose of the new policy measure was to ensure that “enforcement actions do not occur at nor are focused on sensitive locations unless (a) exigent circumstances exist, (b) other law enforcement actions have led officers to a sensitive location… [or] (c) prior approval is obtained.”134 among the places included in the definition of “sensitive locations” are schools (including institutions of higher education), places of worship, sites during public demonstrations, and hospitals. absent the exceptions contained within it, the policy could have provided protection for student privacy by disallowing immigration enforcement on college campuses especially with regard to collecting data, however, the memorandum was narrowly phrased. the policy applies only to “(1) arrests; (2) interviews; (3) searches; and …surveillance.”135 expressly exempted from protection are the immigration enforcement actions opposed by the sanctuary campus movements. this includes “obtaining records, documents and similar materials from officials or employees, providing notice to officials or employees, serving subpoenas, engaging in student and exchange visitor program (sevp) compliance and certification visits.”136 thus, while the policy prescribed by the memorandum may limit the possibility of an immigration raid on a college campus, it does allow immigration officers to request information that potentially reveals an individual’s immigration status. to address such issues, california assembly member ash kalra introduced a bill entitled “public postsecondary education: access to higher education for every student,” which proposes a legal implementation of the sanctuary campus movement.137 the bill embodies some of the most prominent demands of the sanctuary campus movement. by 133 memorandum from john morton, director, u.s. immigration and customs enforcement, “enforcement actions at or focused on sensitive locations” policy number: 10029.2 (oct. 24, 2011). 134 id. 135 id. 136 id. 137 a.b. 21, 2017-2018 reg. sess. (cal. 2017). 158 columbia journal of race and law [vol. 8:1 adding to the donahoe higher education act, the bill requires trustees of the california state university and the governing boards of community college districts [to, among other things,] refrain from releasing certain information regarding the immigration status of students and other members of the communities served by these campuses; [and] refuse to allow officers or employees of united states immigration and customs enforcement to enter campuses of their respective segments on official business of that agency unless they provide specified information and at least 10 business days’ advance notice.138 assembly bill 21 passed on october 5, 2017 and will protect undocumented students in public colleges and universities, which are most vulnerable to defunding threats. as with other aspects of the sanctuary campus movement, the bill protects against actions that are likely beyond the reach of immigration agents on college campuses. however, to ensure adequate protection of those seeking higher education, it would be practical for other states to consider expansive measures similar to this bill. nearly one year into the trump administration, the state of california expressed increased support for sanctuary policies. in october 2017, california passed senate bill no. 54 (hereinafter “sb 54”) which “[prohibits] state and local law enforcement agencies, including school police and security departments,” from using state resources to cooperate with federal immigration officials where they have discretion to do so.139 sb 54 further prohibits california law enforcement agencies from inquiring into a person’s immigration status for immigration enforcement purposes.140 this state sanctuary legislation has been condemned by some opponents as dangerous to public safety but lauded by 138 id. 139 s.b. 54, 2017-2018 reg. sess. (cal. 2017). 140 id. at § 7284.6(a)(1)(a). no. 3:122] a place to call home 159 sanctuary supporters who welcome the strong posture in response to pressure from the trump administration.141 sharing of information. sanctuary campus advocates also request institutions of higher education to refrain from voluntarily sharing information with immigration officials. as discussed above, the iirira prohibits state and local governments from implementing policies prohibiting officers from voluntarily sharing information with immigration officers and agencies.142 the question here is whether institutions of higher education are subject to the communication restrictions imposed by section 1373. being subject to the section would limit a college or university’s ability to refuse disclosing its students’ or employees’ information to immigration officials. i conjecture that any applicable restrictions would apply only to public colleges and universities establishing limited disclosure policies since those institutions are under the control of state or local government and in receipt of federal funding.143 furthermore, it is possible the section 1373 restriction may only apply where the policy comes directly from the government body controlling such public institutions;144 this analysis, of course, depends on whether those institutions would be considered “government entities” or their administrators considered “officials” under the statute. the language of section 1373 appears narrow in its application, restricting itself to regulating only those actions 141 kristine phillips, in message of defiance to trump, lawmakers vote to make california a sanctuary state, washington post (sept. 16, 2017) https://www.washingtonpost.com/news/politics/wp/2017/09/16/inmessage-of-defiance-to-trump-lawmakers-vote-to-make-california-asanctuary-state/?utm_term=.17ca2099bcdf. 142 8 u.s.c. § 1373. 143 see johnson v. hurtt, 893 f. supp. 2d 817, 839 (s.d. tex. 2012) (noting that section 1373 deals expressly with communication between federal agencies and government entities and officials) 144 id. (stating that section 1373 operated to “[ensure] federal immigration agencies receive state and local government assistance in the enforcement of immigration matters”). 160 columbia journal of race and law [vol. 8:1 taken by government organizations.145 while the state laws in california, alabama, and south carolina146 may be subject to review for potential violations of federal immigration laws, private postsecondary institutions may well be free to enact policies restricting the unnecessary sharing of information without fear of violating the iirira. additionally, “a fair reading of the text [of section 642 of the iirira] and history of the statutes suggests that the antisanctuary provisions were not intended to and do not repeal conflicting privacy protections in federal law.”147 these include the protections under ferpa and the health insurance portability and accountability act (hereafter “hippa”), which prohibit the sharing of personally identifiable health information.148 so while states such as alabama may implement immigration status reporting requirements, schools or medical officials blindly complying with such policies risk violating these federal privacy laws. likewise, if a school were to implement a policy refusing to share information about immigration status, federal privacy laws would likely support such action despite the communication prohibitions of section 1373. 145 8 u.s.c. § 1373 provides: “notwithstanding any other provision of federal, state, or local law, a federal, state, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from….” (emphasis added). see also hurtt, 893 f. supp. 2d at 839 (stating that section 1373 “speaks expressly in terms of preventing prohibitions or restrictions on the communications between ice and any government entity or official” and did not show a clear intention of congress to “address the individual concerns of officials in sharing information with ice”). 146 alabama and south carolina currently prohibit the admission of undocumented students to public postsecondary institutions and require the establishment of immigration status verification systems; see south carolina illegal immigration reform act, s.c. code ann. § 59-101-430 (2008); ala. code § 31-13-8 (2014). 147 elizabeth m. mccormick, federal anti-sanctuary law: a failed approach to immigration enforcement and a poor substitute for real reform, 20 lewis & clark l. rev. 165, 202 (2016). 148 health insurance portability and accountability act of 1996, pub. l. no. 104-191, § 262, 110 stat. 1936, 2029 (codified as amended at 42 u.s.c. § 1320d-6). no. 3:122] a place to call home 161 furthermore, it is important to establish whether educational funding can be tied to the communication restrictions under section 1373 since other sections of the iirira govern the provision of such funding to undocumented students in institutions of higher education.149 if funding could constitutionally be conditioned on compliance with section 1373, sanctuary campuses implementing non-sharing policies would be at risk of defunding. inquiry into and recording of immigration status. the sanctuary campus movement requests that institutions of higher education prohibit security officials from inquiry into or the recording of a person’s immigration status. for this goal to be achieved it is important to determine what information institutions of higher education may be required to request from potential students and whether such institutions would be subject to any recording requirements. first, both the iirira and the prwora prohibit schools from offering in-state tuition to undocumented students in specific circumstances. institutions, including private colleges and universities, must consider citizenship status when determining eligibility for federal, state, and internal school financial assistance.150 if an institution does not request information about a potential student’s immigration status, that school may be less able to provide financial assistance or protect that student. moreover, the likelihood that an institution may inadvertently alert the federal government to the existence of undocumented students who apply for federal financial assistance, is among the risks associated with not requesting immigrant status information. 149 8 u.s.c. § 1623 (prohibiting distribution of in-state tuition benefits to undocumented students unless offered to national or state residents). 150 see, e.g., h.b. 4400, 117th leg., 2nd reg. sess., § 59-101-430 (s.c. 2008); columbia university in the city of new york, financial aid, eligibility for federal aid, http://sfs.columbia.edu/fin-aid/elig-fed-aid (last visited nov. 26, 2017). 162 columbia journal of race and law [vol. 8:1 a college or university is limited in its ability to restrict the recording of immigration status or information that may lead to the accidental revelation of undocumented students. section 641 of the iirira gives the government authority to implement a program to collect “from approved institutions of higher education and designated exchange visitor programs in the united states . . . information . . . with respect to aliens” admitted under certain nonimmigrant visas.151 currently, the student and exchange visitor information system (sevis), which monitors non-immigrant students and exchange visitors, requires schools to maintain records on students admitted under f-1 and m-1 visas.152 it is this system that allows colleges to participate in the student and exchange visitor program (sevp), which in turn enables them to offer educational opportunities in the united states to foreign students. individuals accepted to the sevp program and admitted to the united states and the universities that they attend are always subject to the monitoring and reporting requirements of sevis. an institution’s administrative board would therefore be unable to implement a broad policy prohibiting the recording of any immigrant status if that school participates in sevis, but may effectively have a policy restricting campus security officers from asking about or reporting on immigrant status to immigration officers. the upside to the limitations of section 641 is that the provision pertains only to foreign students participating in a government program; it does not address reporting requirements pertaining to undocumented students generally. therefore, a school could also potentially implement a dual recording policy, which allows them to record the immigration status of students in sevp while also refusing to record the status of any other student. 151 8 u.s.c. § 1372. 152 sevis currently requires schools to report, among others things, an individual’s nationality, date and place of birth, student’s current address and employment. sevis reporting requirements for designated school officials, u.s. immigration & customs enforcement, https://www.ice.gov/sevis/dso-requirements. no. 3:122] a place to call home 163 3. current protections: what sanctuary campuses can offer students protections under ferpa. currently, sanctuary campuses can rely on disclosure and notification requirements under ferpa to ensure the privacy of their students. ferpa currently prohibits educational institutions from disclosing students’ personally identifiable information without consent.153 notwithstanding its protections, there are several exceptions to ferpa under which release of a student’s personal information would be permitted or required. these exceptions to the general rule include the disclosure of directory information (the definition of which is quite broad), to comply with judicial orders or subpoenas, and health and safety emergency disclosures.154 but despite these exceptions, an institution may still be obligated to notify students of a possible disclosure of their data. so, while an institution may be legally required to comply with a judicial order or subpoena, undocumented students may have the limited protection provided by ferpa’s disclosure notification requirement. although a school may be allowed to disclose a student’s personal identifiable information in certain circumstances, the law requires that with respect to subpoenas a school only release information if the requesting agency or institution has made reasonable efforts to notify the student or parent. 155 notification allows “the parent or eligible student [to] seek protective action” unless disclosure is required for compliance with subpoenas issued for law enforcement purposes and a court has determined the contents or existence of such subpoenas are to remain confidential.156 however, as previously stated, ferpa can only protect “students,” which includes only those who have “been in attendance” at an institution.157 therefore the 153 see generally 20 u.s.c. § 1232g(d). 154 20 u.s.c. § 1232g(b). 155 34 c.f.r. § 99. 31(a)(9)(ii). 156 id. 157 20 u.s.c. § 1232g(a)(6). 164 columbia journal of race and law [vol. 8:1 information of individuals who apply but do not attend these institutions is not protected by the notification requirement. if the goal of the sanctuary campus movement is only to protect the information of those already on a college or university’s campus, then ferpa would be one of the most important tools for the sanctuary campus movement. otherwise, there may be a large sector of individuals whose information would be at risk. available protections despite the iirira. the iirira prescribes reporting requirements for institutions permitting admission to non-immigrant students.158 the reporting requirements of the act do not address the admission of undocumented students to institutions of higher education,159 meaning that institutions are not required to report the admission of undocumented students for purposes of complying with the iirira reporting provisions. it is worth noting that prwora likewise does not address the admission of undocumented students.160 the reporting requirements under section 641 of the iirira, for instance, apply only to non-immigrant students participating in a government regulated exchange program.161 additionally, the jeanne clery disclosure of campus security police and campus statistics act (the “clery act”), which requires institutions to compile statistics for crimes reported to campus security or local police, does not require schools to compile information on immigration status.162 many 158 congressional house record –§ 501 (107th congress) dec. 19, 2001 (requiring, among others, the admission of foreign students and exchange visitors). 159 see equal access educ. v. merten, 305 f. supp. 2d 585, 607 (e.d. va. 2004) (finding that the language of the iirira does not address admission of undocumented students to public institutions of higher education but leaves it to the individual states to decide on the matter). 160 id. at 605–06. 161 sevis, supra note 152. 162 20 u.s.c. § 1092(f) (1990). (the clery act requires that institutions of higher education collect and distribute annual crime statistics to applicants and enrolled students. reports are required to include the school’s policies and procedures in addition to the description no. 3:122] a place to call home 165 sanctuary institutions have pledged that their school’s security officers will make no inquiry into or reporting of an individual’s immigration status, instead releasing only the relevant demographical information necessary to be compliant with the clery act. limiting access to immigration officials. next one must consider whether institutions can protect students by prohibiting entry to ice or other immigration officers by requiring the issuance of a valid warrant. as earlier discussed, the possibility of an immigration raid on a college campus may be an unlikely occurrence given ice’s policy with regard to sensitive locations.163 commentators have opined that the idea of a sanctuary campus is somewhat misleading because there have never been immigration raids on college campuses.164 however, it stands to mention that the memorandum underlying the policy against conducting searches and arrests on school campuses may be vulnerable to repeal or change under a new administration. the policy is not law and therefore is not as difficult to overturn.165 still, while the policy is not a legal bar against immigration raids on a college campus, the social pushback, considering the demonstrations to date in support of the undocumented, and frequency of criminal offenses on campus or in off campus buildings or properties). 163 see 2011 memorandum supra note 133. 164 michael olivas, contronym and controversy, inside higher ed (nov. 29, 2016), https://www.insidehighered.com/views/2016/11/29/sanctuary-campuseswont-provide-real-sanctuary-immigrant-students-essay (discussing the meaning of the term sanctuary as used by colleges and universities in support of undocumented students). 165 while administrative agencies can issue binding rules, they often also, as with the 2011 memorandum, supra note 133, use less formal measures to issue guidance policies. to determine the reach of an agency’s policy a court will make a distinction between legislative rules, which have the same effect as statutes, and interpretative rules, which do not have the force of law but clarify existing law. however, if it is determined that a policy statement issued by an administrative agency is meant to be just that, a policy of its current stance, it is not binding, unless the agency shows that it intends to treat it as such. hudson v. fed. aviation admin., 192 f.3d 1031, 1034 (d.c. cir. 1999). 166 columbia journal of race and law [vol. 8:1 may be enough to deter any such action. restricting physical access to immigration officials without warrants would also compliment data disclosure restrictions under ferpa. moreover, establishing physical restrictions is even more plausible if the limitations on searches and seizures set by the fourth amendment are taken into consideration.166 under this latter point, discussed further in part iv, immigration officials would also need to consider the potential constitutional privacy violations before conducting any raid on a college campus, therefore bolstering the position of a school’s demand for warrants. iv. solidifying the legal significance of sanctuary campuses a. planning a path forward the current sanctuary campus movement belongs on a list of similar past efforts by colleges and universities to show solidarity with those who are politically weak. during the vietnam war, for example, colleges became a place of refuge for students who resisted fighting or the draft generally.167 similarly, after japanese americans were forced to relocate to internment camps during world war ii, many colleges arranged for the transfer of students to universities east of military zones that were willing to take students.168 as a last example, in the “oberlin-wellington rescue case,” it was on a college’s property in 1858 that a runaway slave found shelter when evading slave-catchers.169 166 the fourth amendment protects against unreasonable searches and seizures where there is a reasonable expectation of privacy. u.s. const. amend. iv. 167 ignatius bau, this ground is holy: church sanctuary and central american refugees (paulist press 1985). 168 allan w. austin, from concentration camp to campus: japanese american students and world war ii (university of illinois press 2007). 169 wilbur h. siebert, the underground railroad: from slavery to freedom 335–37 (project gutenberg ed. 201) (1898) (describing the oberlin-wellington rescue of the runaway slave john and no. 3:122] a place to call home 167 in all these examples, college campuses provided a haven to those the law did not protect. although these actions were condemned at the time they were taken, the important humanitarian implications behind them should be recognized. the sanctuary campus movement must also be appreciated in light of the positive impacts it can have on the lives of thousands of undocumented students. looking at the sanctuary campus movement through this lens, it is important to solidify its legal significance and devise ways in which colleges can better serve these individuals. colleges and universities should not only look at what tools are currently in place, but also consider ways to expand on these policies to effectively fight against unfair immigration reform. perhaps then, sanctuary movements can assist in creating a fair immigration policy respectful of american values. 1. implementing data retention policies that expand ferpa protections as previously discussed, current federal policy prohibits the disclosure of students’ personally identifiable information without consent in most situations. however, these legal protections are available only to those who have been enrolled in the school, leaving the personal data of the millions who do not enroll in jeopardy of disclosure. colleges and universities purporting to be members of the sanctuary campus movement must attempt to close the gaps left by ferpa to strengthen their protective capabilities. administrators, faculty, and students of sanctuary campuses and their supporters may consider lobbying congress to demand reform of federal privacy laws, including ferpa. unfortunately, it is unlikely that lobbying efforts to reform ferpa would prove fruitful for sanctuary campus proponents, as the trump administration and the current congress are unlikely to improve policies granting increased the prosecution of the students and professors who helped him to continue his life as a freedman). 168 columbia journal of race and law [vol. 8:1 protections for undocumented immigrants. considering the efforts of the executive branch to defund sanctuary cities during the first months of trump’s presidency, this point is even more evident. sanctuary campuses should consider, as a possible alternative measure, reforming their internal data retention policies. as previously discussed, ferpa protections apply only to “students” as defined by 20 u.s.c. § 1232g(a)(6).170 because of this, immigration officers could potentially request immigration status information of college applicants who have never been enrolled in the school. assuming the requests are otherwise lawful, institutions would not be able to use ferpa to deny access or require the consent of affected individuals before the personal information is released. to counter the potential risks, institutions of higher education should consider the following options: (a) having no information retention policy for students who have not been admitted to their schools, (b) having a specific policy under which only immigration status information is removed from applicant and student records, (c) lowering their data retention periods overall, or (d) adopting new employee training policies for working with and handling subpoenas for sensitive information and immigration law. data retention policy regarding applicants. there are few federal laws that require the retention of student records, and there are only a few states, oregon, for example, that have some requirements.171 some state administrative regulations permit colleges to destroy any or all portion of a student’s education records as long as it accords with the 170 20 u.s.c. § 1232g(a)(6). 171 there are, for example, federal requirements for the retention of records for special education students under the individuals with disabilities education act (“idea”). 20 u.s.c. § 1400 et seq. (1990). many institutions of higher education follow the guidelines set by the american association of collegiate registrars and admissions officers (“aacrao”) for best practices in records retention. no. 3:122] a place to call home 169 school’s established retention policy.172 it is not yet clear what recording rules apply to applicant data as compared to student data. because data retention policies vary amongst jurisdictions, sanctuary colleges and universities should stay abreast of the applicable data retention policies governing their respective states or localities. by acquainting themselves with these rules, and not simply relying on generalized recommendations, schools can best formulate retention policies that not only protect their students (as defined under ferpa) but also applicants who do not ultimately matriculate. specific policies to remove immigration status from records. higher education institutions may alter their data retention policies so that immigration status information is not included in the data retained. of course, implementation of such a policy should take into consideration any state or federal laws requiring the retention of immigration status information.173 alternatively, colleges could consider lowering the retention periods for certain types of data. many colleges have varying record retention policies for individuals who do not enroll in the school. while some colleges only maintain applicant information for one year, others have much longer retention periods.174 the longer 172 the washington administrative code had several sections permitting the destruction of student education records for specific institutions as allowed under each school’s policies. this right is subject to a student’s right to request access. see wash. admin. code 516-26-095; wash. admin. code 132d-125-095 (permitting the destruction of education records as defined by wash. admin. code 132d-125-020). 173 see, e.g., the uniting and strengthening america by providing appropriate tools required to intercept and obstruct terrorism act of 2001 (“patriot act”), pub. l. no. 107-56, §115 stat. 396 (2001). 174 cornell university maintains a record of student education records (including applications, admissions and enrollments) and denials for one year. retention of university records: policy 4.7, cornell university, https://www.dfa.cornell.edu/sites/default/files/vol4_7.pdf. columbia university’s retention policy advises a ten-year maintenance of electronic enrollment data for denied applicants and admitted students who do not enroll for ten years. retention of student education records, columbia university, http://policylibrary.columbia.edu/files/policylib/imce_shared/retention_of_ 170 columbia journal of race and law [vol. 8:1 retention policies may place undocumented students at greater risk of detection and deportation if immigration officials gain lawful access to such records. these concerns are now highly important to sanctuary campuses considering president trump’s executive order 13786 requesting limitations on the privacy act.175 internal employee training. in order to ensure that school officials are prepared to handle immigration data, institutions should implement targeted training programs, if such programs are not already in place. these trainings should cover, among other measures the school may deem prudent, instructing employees on how to properly respond to requests for student records. in addition, training should instruct employees on best practices for requesting immigration status information—specifically, whether requesting such information would be appropriate or necessary. colleges and universities should prioritize training employees and their students on the protections of ferpa and the limitations placed on external requests for student information. by properly instructing students and employees on privacy laws, colleges and universities can be better assured that the rights of their students will be respected internally. additionally, they should offer students and employees materials on relevant immigration law with an emphasis on the rights of non-citizens. these materials should, where applicable, include information about how the sanctuary campus movement operates within the boundaries of the law to protect undocumented individuals on school campuses. student_education_records.pdf. new york university requires a minimum two-year retention policy for applications of individuals who do not enroll. schedule “1” – retention periods for general categories of retainable records, new york university, https://www.nyu.edu/content/dam/nyu/compliance/documents/retention_sc hedule.pdf. 175 enhancing public safety in the interior of the united states, exec. order no. 13,768, 82 fed. reg. 8799, 8802 (jan. 25, 2017) (ordering agencies to restrict protections of the privacy act to united states citizens and lawful permanent residents). no. 3:122] a place to call home 171 finally, colleges and universities wishing to participate in the sanctuary campus movement should implement financial assistance programs to assist undocumented students. current laws restrict undocumented students’ access to higher education by prohibiting schools from offering in-state tuition benefits to undocumented students. federal laws also restrict access to higher education by making undocumented students ineligible to receive federal financial assistance available to other students. colleges and universities can enhance their impact by expanding financial programs to help undocumented students who have difficulty paying for their education. for example, institutions can remove requirements for social security numbers and citizenship status where not entirely necessary, to be eligible to receive a scholarship. by removing such requirements, institutions would expand financial aid eligibility to students lacking such documentation. colleges and universities should also make publicly available, comprehensive lists of scholarships available to undocumented students. in addition, colleges should consider establishing financial programs with the specific aim of helping daca and other undocumented students with immigration related problems. this transparency would assist college applicants who may be deterred due to their ineligibility for federal aid. 2. declaring sanctuary buildings may not be the best approach sanctuary campuses should refrain from designating certain spaces on their properties as “sanctuary spaces.” the fourth amendment provides that where there is a higher expectation of privacy, such as in a home, there is a higher burden on the government to show that intrusions are proper.176 however, designating specific areas on campuses 176 bryan r. lemmons, public education and student privacy: application of the fourth amendment to dormitories at public colleges 172 columbia journal of race and law [vol. 8:1 as safe spaces for undocumented students does not necessarily mean that a court will find the expectations of privacy there protected by the fourth amendment. colleges and universities should instead prepare materials providing students and employees with information on which locations on campus guarantee the protections of the fourth amendment and require the procurement of a warrant for entry by immigration officials. indeed, “[t]he supreme court has established that college students do not ‘shed their constitutional rights’ at the schoolhouse gate.”177 courts have held, for example, that students have a reasonable expectation of privacy under the fourth amendment with respect to dorm rooms, determining that “a student who occupies a college [or university] dormitory room enjoys the protection of the fourth amendment.”178 by providing information to students about such protected areas rather than designating arbitrary safe zones, colleges and universities would do a better job of protecting their undocumented students from possible deportation arrests on campus. to amplify the protection of this policy, schools could request any warrants being used to arrest students or access immigration status information be presented to a designated individual in the office of its general counsel who would review the validity and reach of said warrant. 3. encouraging state and city legislation and helping students to find legal assistance while measures like the recent california legislation might not be possible in all jurisdictions, sanctuary campuses should do their best within the limits of the law to support similar legislative actions in their respective states and cities. relatedly, institutions should consider smaller supportive actions that can also have real impact on their students. to begin, colleges and universities should support and universities, 2012 b.y.u. educ. & l.j. 31 (2012) (discussing the privacy protections afforded to students under the fourth amendment). 177 id. at 37–38 (quoting goss v. lopez, 419 u.s. 565, 574 (1975)). 178 id. at 38. no. 3:122] a place to call home 173 student and faculty efforts organized to challenge the injustice faced by undocumented students. while institutional support of these efforts may not produce legislative change, providing emotional support demonstrates to undocumented students that they can rely on the larger community. additionally, universities with law school facilities should also create or expand pro bono immigration clinic services with volunteer attorneys and students to assist undocumented students facing possible deportation or educate immigrants about their rights. because many undocumented immigrants are from working class economic backgrounds179 and may be unable to pay for legal aid, pro bono services are incredibly important. some law schools, such as columbia law school and new york university, are already equipped with pro bono immigration clinics and so have the means to assist. while these measures will not result in the broad change that city or state legislation would, undocumented students would have a much-needed supportive environment. v. conclusion evaluating the risks posed by the current presidential administration leads one to question the legal significance that sanctuary campuses can have for undocumented students. to fully comprehend the complexity of the sanctuary campus movement and its constraints, it is first important to understand the sanctuary city movement of the 1980s. as with that movement, the sanctuary campus movement should be a considered a humanitarian effort with the simple aim of preventing injustice against those with limited rights and means. as they implement policies, sanctuary campuses have been forced to face not only the moral but also legal issues surrounding the movement. developments in the first year of the trump administration clearly illustrate that the administration will work to realize its conservative campaign promises on immigration policy, 179 passel, supra note 17. 174 columbia journal of race and law [vol. 8:1 and highlight the importance of the issue. by staying informed of local and federal requirements, institutions of higher education can be better prepared to address these challenges. they will also be less likely to violate immigration regulations through their efforts to assist the undocumented. beyond refusing to cooperate with immigration officials if not required by the law, colleges and universities should improve privacy and data retention policies, and continue to educate their staff and students about the rights of non-citizens and protections available under current laws. by observing these practices and helping their students to rally for immigration reform, sanctuary campuses will be better able to protect the undocumented. microsoft word beckett & evans final.docx 2016 columbia journal of race and law 77 race, death, and justice: capital sentencing in washington state, 1981-2014 katherine beckett* & heather evans** this article examines the role of race in the application of the death penalty in the wake of the furman v. georgia decision. although contemporary death penalty statutes were designed to reduce arbitrariness and discrimination in capital sentencing, many studies indicate that race continues to play a significant role in determining which capital defendants live and which die in the post-furman era. to date, however, no published study has examined the role of race in capital sentencing in washington state, where the statutory framework effectively reduces the number of homicide cases that are eligible for capital punishment and prosecutorial discretion is therefore comparatively circumscribed. this article assesses whether race influences the administration of capital punishment in washington state, and if so, where in the process it matters. on the one hand, the narrowness of the statutory framework may effectively constrain prosecutorial discretion in ways that minimize the role of race. on the other hand, experimental research suggests that unconscious stereotypes that link blacks to violence are widespread, and that jury selection and deliberations tend to amplify jurors’ implicit biases. we therefore hypothesize that race will matter most at the sentencing (as opposed to the filing) stage of the process. to test this, we analyze prosecutorial and jury decision-making in all washington aggravated murder cases adjudicated since 1981 for which information is available. the results of statistical regression analyses support this hypothesis: although neither the race of the defendant nor the victim affect prosecutorial decision-making, jurors are more than four times more likely to impose a death sentence when the defendant is black. these findings suggest that race plays a significant role in capital sentencing even where the statutory framework effectively narrows the pool of homicide cases that may result in the death penalty. i. introduction ............................................................................................... 78 ii. race and the death penalty: past and present ................................. 84 a. race and the administration of capital punishment in the united states ................................................................................................... 84 b. the role of implicit racial bias ....................................................... 87 iii. data, methods and analytic strategy .................................................. 89 a. data and analytic strategy ................................................................. 89 b. statistical methods .............................................................................. 91 iv. preliminary findings: descriptive statistics ...................................... 94 v. regression results ..................................................................................... 97 a. factors influencing prosecutorial filing decisions in aggravated murder cases ...................................................................................... 98 b. factors influencing the imposition of death sentences in aggravated murder cases ................................................................. 100 78 race, death, and justice vol. 6:2 vi. discussion and conclusion .................................................................... 103 vii. appendix a: aggravating factors ......................................................... 107 viii. appendix b: trial reports excluded from the analyses ............... 109 ix. appendix c: measurement of variables ................................................ 110 x. appendix d: modeling prosecutorial filing decisions ................... 112 xi. appendix e: modeling sentencing outcomes in capital sentencing .................................................................................................. 114 i. introduction although the number of executions taking place in the united states has declined considerably in recent years,1 capital punishment remains shrouded in controversy.2 concerns about “the ultimate sanction” include the high cost of its administration, the apparent arbitrariness of its application, the possibility that available techniques cause considerable pain and suffering, and evidence that the system is “fraught with error.”3 the role of race in capital sentencing is also the subject of much discussion and debate.4 indeed, although contemporary death penalty statutes were ostensibly designed to reduce arbitrariness and discrimination in capital sentencing,5 researchers have nonetheless found that race and other extra-legal factors continue to play a significant role in determining which capital defendants live and which die in the *katherine beckett, phd 1994, university of california at los angeles; b.a. 1986, university of california at san diego. ** heather evans, m.a. 2008, university of washington; b.a. 2005, university of washington. the authors would like to thank lila silverstein and neil fox for their assistance with data collection, chase beauclair for his excellent research assistance, and the editorial staff of the columbia journal of race and law for their helpful editing contributions. 1 the death penalty in 2013: year end report, death penalty information center, http://deathpenaltyinfo.org/documents/yearend2013.pdf. 2 see generally, charles j. ogletree, jr. & austin sarat, from lynch mobs to the killing state: race and the death penalty in america (2006). capital punishment is also controversial in washington state. in 2014, governor jay inslee expressed deep concerns about capital punishment and declared a moratorium on it. see jennifer sullivan & andrew garber, inslee halts executions, seattle times (february 12, 2014), http://www.seattletimes.com/seattle-news/inslee-halts-executions-impact-on-current-cases-may-be-minimal/. in response, state prosecutors have asked lawmakers to introduce a referendum that will enable voters to determine the fate of capital punishment. see associated press, washington prosecutors want public vote on death penalty, seattle times (november 13, 2015), http://www.seattletimes.com/seattle-news/crime/washington-prosecutors-want-death-penaltyreferendum/. 3 see, e.g., james liebman, jeffrey fagan & valerie west, a broken system: error rates in capital cases, 1973-1995, http://www2.law.columbia.edu/instructionalservices/liebman/; justin marceau, sam kamin & wanda foglia, death eligibility in colorado: many are called, few are chosen, 84 u. colo. l. rev. 1069 (2013). regarding pain and suffering, see larry greenemeier, cruel and unusual?: is capital punishment by lethal injection quick and painless?, scientific american (october 27, 2010), http://www.scientificamerican.com/article/capital-punishment-by-lethal-injection/. 4 see, e.g., american civil liberties union, race and the death penalty, https://www.aclu.org/race-and-deathpenalty. see also, stuart banner, the death penalty: an american history (2009); craig haney, condemning the other in death penalty trials: biographical racism, structural mitigation, and the empathic divide, 53 depaul l. rev. 1557 (2004); charles j. ogletree, jr., black man’s burden: race and the death penalty in america, 81 or. l. rev. 15, 18 (2002); touré, put to death for being black: new hope against judicial system bias, time.com (may 03, 2012), http://ideas.time.com/2012/05/03/put-to-death-for-being-black-new-hope-against-judicial-system-bias/. 5 stephen b. bright, discrimination, death and denial: the tolerance of racial discrimination in the infliction of the death penalty, 35 santa clara l. rev. 433, 433–34 (1995). 2016 columbia journal of race and law 79 post-furman era.6 in particular, there is strong evidence that the race of murder victims influences the administration of the death penalty: many studies find that defendants accused of killing whites are significantly more likely to be sentenced to death than similarly situated defendants accused of killing blacks.7 about a third of the studies investigating capital sentencing processes since 1990 also find that the race of the defendant continues to impact outcomes in capital cases,8 even as overt and intentional forms of racism decline.9 to date, however, no published study has examined the role of race in capital sentencing in washington state, where the death penalty is now a potential outcome in a very small proportion of all homicide cases. washington state’s current death penalty statute was enacted in 1981 and notably limits the proportion of homicide cases in which the death penalty is a possible outcome.10 under the revised code of washington (“rcw”), chapter 10.95, the death penalty may only be sought if the defendant is convicted of first-degree murder and at least one of fourteen aggravating circumstances is found to exist.11 by contrast, many death penalty states define a larger category of cases as death-eligible. as a result, these states tend to have larger death row populations and have executed a comparatively large number of defendants than is the case in washington state. this variation is depicted in table 1.12 6 furman v. georgia, 408 u.s. 238 (1972). for an overview, see david c. baldus & george woodworth, race discrimination and the death penalty, in james r. acker, robert m. bohm & charles s. lanier, america’s experiment with capital punishment: reflections on the past, present, and future of the ultimate penal sanction, 519–26 (2nd ed. 2003). see also, u.s. gov’t accountability off., ggd-90-57, death penalty sentencing: research indicates pattern of racial disparities (1990); samuel walker, cassia spohn & miriam delone, the color of justice: race, ethnicity and crime in america (4th ed. 2006); jamie l. flexon, racial disparities in capital sentencing: prejudice and discrimination in the jury room (2012). 7 see baldus & woodworth, supra note 6. see also u.s. gov’t accountability off., u.s. gov’t accountability off., supra note 6, at 5; walker, spohn & delone, supra note 6; flexon, supra note 6. 8 u.s. gov’t accountability off., supra note 6. 9 lawrence bobo, james r. kluegel & ryan a. smith, laissez-faire racism: the crystallization of a ‘kinder, gentler’ antiblack ideology, in racial attitudes in the 1990s: continuity and change (1997); adam r. pearson, john f. dovidio & samuel l. gaertner, the nature of contemporary prejudice: insights from aversive racism, 3 soc. & personality psychol. compass 314, 315 (2009). 10 wash. rev. code § 10.95.030 (2015). 11 see appendix a for a list of the aggravating factors that differentiate aggravated homicide from nonaggravated homicide in washington state. 12 tracy l. snell, bureau of justice statistics, capital punishment, 2013 – statistical tables (2014); jeffrey l. kirchmeier, casting a wider net: another decade of legislative expansion of the death penalty in the united states, 34 pepp. l. rev. 1 (2006). statutory information is current as of december 31, 2013 and is taken from snell (2014). the number of aggravators is taken from snell (2014), and where this information was not provided, from kirchmeier (2006); the number of death row inmates and executions was taken from death row u.s.a., naacp legal defense and educational fund, inc., http://www.deathpenaltyinfo.org/documents/drusawinter2016.pdf. 80 race, death, and justice vol. 6:2 table 1. state-level variation in death penalty statutes and the imposition of death state qualifying offense(s) statutory aggravators death row inmates executions since 1976 least restrictive: murder plus other offenses are death eligible arkansas capital murder; treason 10 35 27 california first-degree murder with special circumstances; sabotage; train wrecking causing death; treason; perjury in a capital case causing execution of an innocent person; fatal assault by prisoner serving life 22 746 13 colorado first-degree murder with at least one aggravating circumstance; first-degree kidnapping resulting in death; treason 17 3 1 florida first-degree murder; felony murder; capital drug trafficking; capital sexual battery 15 401 90 georgia aggravated murder; rape; armed robbery or kidnapping with injury or ransom when the victim dies; aircraft high jacking; treason 11 82 57 idaho first-degree murder with aggravating factors; first-degree kidnapping; perjury resulting in the execution of an innocent person 11 11 3 kentucky capital murder with at least one aggravating circumstance; capital kidnapping 8 34 3 louisiana first-degree murder; treason 12 84 28 mississippi capital murder; airplane piracy 8 48 21 montana capital murder with at least one aggravating circumstance; aggravated kidnapping; felony murder; capital sexual intercourse 11 2 3 wyoming first-degree murder; murder during the commission of sexual assault, sexual abuse of a minor, arson, robbery, burglary, escape, resisting arrest, kidnapping, or abuse of a minor under 16 12 1 1 moderately restrictive: non-aggravated murder, any murder, and/or homicide are death eligible indiana murder with at least one aggravating circumstance 16 14 20 missouri first-degree murder 17 33 83 new hampshire murder committed in the course of rape, kidnapping, drug crimes, or home invasion; killing of a police officer, judge or prosecutor; murder for hire; murder by an inmate while serving a life without parole sentence 10 1 0 texas criminal homicide with at least one aggravating circumstance 9 271 524 most restrictive: only aggravated first degree murder cases are death eligible alabama intentional murder with at least one aggravating factor 10 201 56 arizona first-degree murder, including felony murder, with at least one aggravating factor 14 122 37 connecticut* capital felony murder 8 12 1 2016 columbia journal of race and law 81 table 1. state-level variation in death penalty statutes and the imposition of death state qualifying offense(s) statutory aggravators death row inmates executions since 1976 delaware first-degree murder with at least one aggravating circumstance 22* 17 16 kansas capital murder with at least one aggravating circumstance 8 9 0 nebraska first-degree murder with at least one aggravating circumstance 9* 11 3 nevada first-degree murder with at least one aggravating circumstance 15* 81 12 new mexico* first-degree murder with at least one aggravating circumstance 7 2 1 new york first-degree murder with at least one aggravating circumstance 13 0 0 north carolina first-degree murder with at least one aggravating circumstance 11 157 43 ohio first-degree murder with at least one aggravating circumstance 10 145 53 oklahoma first-degree murder with at least one aggravating circumstance 8 48 112 oregon first-degree murder with at least one aggravating circumstance 12* 36 2 pennsylvania first-degree murder with at least one aggravating circumstance 18 184 3 south carolina first-degree murder with at least one aggravating circumstance 12 44 43 south dakota first-degree murder with at least one aggravating circumstance 10 3 3 tennessee first-degree murder with at least one aggravating circumstance 17 73 6 utah first-degree murder with at least one aggravating circumstance 19 9 7 virginia first-degree murder with at least one aggravating circumstance 15 8 110 washington first-degree murder with at least one aggravating circumstance 14 9 5 in the first, least restrictive category of states, state law authorizes capital punishment for offenses other than first-degree murder and/or in all first-degree murder cases. in florida, for example, conviction of first-degree murder, felony murder, capital drug trafficking, and capital sexual battery may result in a death sentence. a second, moderately restrictive group of states limit capital punishment to murder cases but, unlike washington state, treat non-aggravated and/or non-first-degree murder cases as death-eligible. in missouri, for example, all first-degree homicides are death-eligible (i.e., no aggravating circumstances are 82 race, death, and justice vol. 6:2 required). some of these states (such as colorado) also define first-degree murder broadly, to include nonintentional forms of homicide such as felony murder and death caused by “extreme indifference.”13 the third, most restrictive group of states, which includes washington, limits capital punishment to aggravated and first-degree murders. that is, prosecutors must prove beyond a reasonable doubt that the defendant committed first-degree murder and that one or more statutorily defined aggravators exist. among these states, the number of statutory aggravators varies. in general, the more aggravating circumstances, the larger the share of murder cases that are likely to qualify as “aggravated” murder.14 unlike washington, many of the states in this category have expanded the number of aggravating circumstances or otherwise broadened their death penalty statute in recent years.15 in pennsylvania, for instance, eighteen aggravated circumstances render a homicide death-eligible; in tennessee, the statute now identifies seventeen aggravating circumstances.16 however, it is not just the number of aggravators that increases the number of death-eligible cases; some aggravators have broader applicability than others. for example, although colorado’s statute identifies only a slightly larger number (seventeen) of aggravators than does washington state law (fourteen), a recent study found that over ninety percent of colorado’s first-degree murder cases met the statutory definition of aggravated murder and involved death-eligible defendants.17 by contrast, just 13.3% of washington state’s first-degree murder defendants were convicted of aggravated murder and were death-eligible.18 as a result of its relatively narrow statutory framework, the number of executions and the size of the death row population are comparatively small in washington. at present, nine men are on death row in washington. only seven of the thirty-three states with prisoners awaiting execution have smaller death row populations,19 and only eleven have conducted fewer executions since 1976.20 the fact that washington’s statutory framework limits the applicability and use of capital punishment is of great importance: statutory schemes that do not sufficiently narrow the class of cases that are deatheligible create the potential for a high degree of arbitrariness and discrimination in the administration of capital punishment.21 in a number of cases adjudicated since furman,22 the court has ruled that capital sentencing statutes avoid the related problems of over-inclusiveness and arbitrariness if they “genuinely narrow the class of persons eligible for the death penalty.”23 as marceau concludes, “the constitutionally 13 marceau, kamin & foglia, supra note 3, at 1087. 14 see kirchmeier, supra note 12. 15 see infra notes 67–69. 16 see snell, supra note 12. 17 marceau, kamin & foglia, supra note 3. 18 this figure was calculated as follows: first, we obtained data regarding the number of aggravated and nonaggravated first-degree murder convictions from 1999-2013 from the washington state sentencing guidelines commission. see statistical summary of adult felony sentencing, 1999-2013, washington state caseload forecast council, http://www.cfc.wa.gov/criminaljustice_adu_sen.htm. we then subtracted the number of aggravated murder convictions involving non-death eligible defendants from the total number of aggravated murder convictions. defendants who were juveniles at the time of the conviction or subject to an extradition agreement that precluded the death penalty were considered ineligible for the death penalty. finally, we calculated the percent of all first degree murder convictions that involved death-eligible defendants. 19 death row inmates by state, death penalty information center, http://www.deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row-year (last updated jan. 1, 2016). 20 facts about the death penalty, death penalty information center, http://www.deathpenaltyinfo.org/documents/factsheet.pdf (last updated april 18, 2016). 21 marceau, kamin & foglia, supra note 3, at 1094. 22 furman v. georgia, 408 u.s. 238 (1972). 23 zant v. united states, 462 u.s. 862, 865 (1983). see also marceau, kamin & foglia, supra note 3, at 1081–82 (discussing the narrowing of the class of persons eligible for the death penalty). 2016 columbia journal of race and law 83 required narrowing [of death-eligibility] must occur at the legislative level in order to limit the unchecked discretion of prosecutors in deciding whom to prosecute under a statute.”24 because washington state’s statutory framework does meaningfully narrow the class of homicide cases that are death-eligible, analysis of the role of race in capital cases in washington is especially instructive: evidence that race matters even where discretion is comparatively constrained would suggest that narrowing the death penalty statute will not necessarily eliminate the role of race in the adjudication of capital cases. despite its comparatively limited use, the administration of capital punishment in washington state remains controversial.25 in part, this is because federal courts have overturned eight of eleven capital cases after defendants lost their appeals.26 but the racial composition of persons on washington’s death row is also controversial.27 at present, four of the nine (forty-four percent) men on death row are black, despite the fact that the percentage of african americans in the state population has hovered between three to four percent for decades.28 this article assesses whether race influences the administration of capital punishment in washington state, and if so, where in the process it matters. recent studies highlight the importance of analyzing prosecutorial and jury decision-making separately in order to specify which, if any, decision-making processes are influenced by race.29 this is especially important given washington’s restrictive statutory framework, which dramatically limits the range of murder cases in which prosecutors may elect to seek death. the following analyses therefore explore the impact of race on prosecutorial decisions to file death notices and, separately, on juries’ decisions30 to impose capital punishment in aggravated murder cases in which death notices have been filed. specifically, this article examines whether prosecutors are more likely to seek, and juries more likely to impose, the death penalty in cases involving black defendants. this article also analyzes whether the race of the victim influences prosecutorial and/or jury decision-making in capital cases adjudicated in washington state. part ii of this article provides an historical overview of the role of race in the administration of capital punishment and the results of empirical studies investigating this relationship. 24 marceau, kamin & foglia, supra note 3, at 1083. 25see sullivan & garber, supra note 2. see associated press, supra note 2. 26 as of 2000, the federal courts had overturned seven of eight cases upheld by the washington state supreme court. these cases included mak v. blodgett, 970 f.2d 614 (9th cir. 1992), cert. denied, 507 u.s. 951 (1993); harris by and through ramseyer v. blodgett, 853 f. supp. 1239 (w. d. wash. 1994), aff’d, 64 f.3d 1432 (9th cir. 1995); rupe v. wood, 93 f.3d 1434 (9th cir. 1996), cert. denied, 519 u.s. 1142 (1997); jeffries v. wood, 114 f.3d 1484 (9th cir. 1997); rice v. wood, c89-568t (w.d. wash. 1997); lord v. wood, 184 f.3d 1083 (9th cir. 1999); benn v. wood, 2000 wl 1031361 (w.d. wash. 2000). the one exception was campbell v. wood, 18 f.3d 662 (9th cir. 1994) (en banc). see aclu of washington, sentenced to death: a report on washington supreme court rulings in capital cases 2 (2000). since 2000, federal courts have overturned one of three death sentences upheld by the washington state supreme court. in 2002, the ninth circuit reversed the death sentence in pirtle v. morgan, 313 f.3d 1160 (9th cir. 2002). in 2007, however, the united states supreme court affirmed cal brown’s sentence. see uttecht v. brown, 551 u.s. 1 (2007). jonathan gentry also lost his federal appeal in the ninth circuit. see gentry v. sinclair, 705 f.3d 884 (9th cir. 2012). 27 see, for example, the recent statement unanimously adopted by all nine seattle councilmembers. steve militich, seattle city leaders urge state legislators to abolish death penalty, seattle times (jan. 26, 2015), http://blogs.seattletimes.com/today/2015/01/seattle-city-leaders-urge-state-legislators-to-abolish-death-penalty/. see also mishi faruqee, facing race and the death penalty, aclu of washington blog (dec. 11, 2012), https://acluwa.org/blog/facing-race-and-death-penalty. 28 figures are current as of january 1, 2016, and are available through the death penalty information center. current death row populations by race, death penalty information center, http://www.deathpenaltyinfo.org/racedeath-row-inmates-executed-1976#deathrowpop (last updated jan. 1, 2016). 29 see david c. baldus & george woodworth, america’s experiment with capital punishment: reflections on the past, present, and future of the ultimate penal sanction (2nd ed. 2003). 30 if a defendant waives his or her right to a jury trial, a judge may impose a death sentence in cases in which a death notice has been filed. as a practical matter, however, juries almost always decide whether to impose a sentence of death. we therefore link sentencing decisions to jury decision-making throughout this article. 84 race, death, and justice vol. 6:2 part iii describes the data and methods used in the statistical analyses presented here. part iv provides preliminary, descriptive results in order to provide the reader with a clear understanding of the broad geographic and demographic patterns that characterize the administration of capital punishment in washington state. part v presents the results of a series of statistical regression analyses designed to identify the unique impact of victim and defendant race over and above other relevant factors. part vi offers a discussion of the empirical findings and their significance. ii. race and the death penalty: past and present historically, the use of capital punishment in the united states was bound up with various racialized systems of control, including extra-legal violence. as legal scholar charles ogletree, jr. puts it, “the racially disproportionate application of the death penalty can be seen as being in historical continuity with the long and sordid history of lynching in this country.”31 although it is tempting to imagine this continuity solely in historical terms, numerous studies indicate that race has continued to influence the administration of capital punishment in locales across the country since its reinstatement in the late 1970s and early 1980s.32 some of these studies analyze data regarding the administration of capital punishment from particular jurisdictions within the united states.33 others use experimental methods to investigate how the race of hypothetical defendants, victims, and/or jurors impact mock jurors’ deliberations and sentencing decisions.34 in what follows, this article summarizes the results of these two bodies of research. a. race and the administration of capital punishment in the united states numerous studies analyze whether race has impacted the (actual) administration of capital punishment in united states since its reinstatement by the supreme court in the late 1970s.35 importantly, most of these studies have been conducted in states that utilize capital punishment far more than washington state.36 research shows that race continues to permeate the capital sentencing process despite the adoption of procedures designed to eliminate that possibility. this appears to have been the case in the years immediately following the furman decision37 and in more recent decades as well. however, while most studies focusing on the more recent period continue to find that the race of the victim influences capital outcomes, only about one-third of these studies find race-of-defendant effects. a meta-analysis of studies published prior to 1990 conducted by the united states government accountability office (“gao”) found “a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty after the furman decision.”38 studies published during this period consistently reported that defendants convicted of killing whites were more likely to be sentenced to death than other defendants, over and above any differences in case characteristics.39 indeed, this finding was “remarkably consistent across data sets, states, data collection methods, and analytic techniques”; it was also found to exist at all stages of the criminal justice process.40 moreover, more than half of the studies reviewed by the gao indicated that the race of the defendant also significantly impacted the likelihood that defendants were charged with a capital offense and sentenced to death prior to 1990. in three-fourths of these studies, 31 see ogletree, jr., supra note 4. see also ogletree, jr. & sarat, supra note 2. 32 see supra notes 7–8. see infra notes 49–56, 59, 66–69, 72. 33 see supra notes 7–8. see infra notes 49–56, 59. 34 see infra notes 66–69, 72. 35 gregg v. georgia, 428 u.s. 153 (1976). 36 see infra notes 50–65, 66–73. 37 furman v. georgia, 408 u.s. 238 (1972). 38 u.s. gov’t accountability off., supra note 6, at 5. 39 u.s. gov’t accountability off., supra note 6, at 5. 40 u.s. gov’t accountability off., supra note 6, at 5. 2016 columbia journal of race and law 85 black defendants were significantly more likely to face a death sentence than similarly situated white defendants.41 more recent studies report similar findings.42 in particular, studies analyzing more recent time periods fairly consistently report that victim-race and numerous other legal and extra-legal factors continue to influence the administration of capital punishment.43 specifically, most studies find that defendants convicted of killing whites are significantly more likely to receive a death sentence than others, even after controlling for a wide range of legal and extra-legal factors that may also influence outcomes in capital cases.44 for example, songer and unah analyzed capital sentencing in south carolina in the 1990s and found that prosecutors were significantly more likely to seek death in cases involving white victims.45 similarly, barnes, sloss, and thaman analyzed the imposition of the death penalty in cases adjudicated in missouri between 1997 and 2001, and report that defendants accused of killing whites were significantly more likely to be sentenced to death than other defendants after controlling for other relevant factors.46 radelet and pierce analyzed the factors that predict the imposition of death sentences in eligible murder cases adjudicated in north carolina between 1980 and 2007, and found that defendants accused of killing whites were more likely to be sentenced to death than similarly situated others.47 numerous other studies have reached similar conclusions.48 several recent studies also found that the race of the defendant influences outcomes in capital cases, with black defendants more likely to be sentenced to death than similarly situated white defendants.49 for example, baldus reports that in cases adjudicated in philadelphia between 1983 and 1993, black defendants (and defendants accused of killing people who were not black) were significantly more likely to be sentenced to death than similarly situated others.50 baldus similarly reports that black defendants in the united states military system were more likely to be sentenced to death than non-black defendants even after controlling for relevant legal factors.51 another recent study analyzing data from arkansas found that black defendants with white victims were significantly more likely to be sentenced to death than black defendants with non 41 u.s. gov’t accountability off., supra note 6, at 6. 42 in a meta-analysis of the literature published in 2003, baldus and woodworth found that “in [eighty-three percent] (25/30) of the jurisdictions with relevant data, there is some evidence of race-of-victim disparities adversely affecting defendants whose victims are white, and in [thirty-three percent] (10/30) of these jurisdictions, there is some evidence of race-of-defendant disparities adversely affecting black defendants.” see baldus & woodworth, supra note 6, at 519. 43 see baldus & woodworth, supra note 6, at 519 44 see baldus & woodworth, supra note 6, at 520–21. 45 michael j. songer & issac unah, the effect of race, gender and location on prosecutorial decisions to seek the death penalty in south carolina, 58 s.c. l. rev. 161 (2006). 46 katherine y. barnes, david l. sloss & stephen c. thaman, life and death decisions: prosecutorial discretion and capital punishment in missouri 58 (ariz. legal studies, discussion paper no. 08-03, 2008). 47 michael l. radelet & glenn l. pierce, race and death sentencing in north carolina, 1980-2007, 89 n. c. l. rev. 2119, 2140–42 (2011). 48 see david c. baldus, catherine m. grosso, george g. woodworth & richard newell, racial discrimination in the administration of the death penalty: the experience of the united states armed forces (1984-2005), 101 j. crim. l. & criminology 1227 (2011); glenn l. pierce & michael l. radelet, death sentencing in east baton rouge parish, 1990-2008, 71 la. l. rev 647 (2011); glenn l. pierce & michael l. radelet, the impact of legally inappropriate factors on death sentencing for california homicides, 1990-1999, 46 santa clara l. rev. 1 (2005); scott phillips, continued racial disparities in the capital of capital punishment: the rosenthal era, 50 hous. l. rev. 131 (2012). 49 baldus & woodworth, supra note 6, at 519. 50 david c. baldus, george woodworth, david zuckerman, neil a. weiner & barbara broffitt, racial discrimination and the death penalty in the post-furman era: an empirical and legal overview, with recent findings from philadelphia, 83 cornell l. rev. 1638 (1998). 51 baldus, grosso, woodworth & newell, supra note 50. 86 race, death, and justice vol. 6:2 white victims and all white defendants.52 even more recently, donohue found that in connecticut, minority defendants accused of killing white victims were substantially more likely to be charged and sentenced to death than other similarly situated defendants.53 many of these studies further suggest that race may matter the most at the sentencing phase of capital trials. for example, baldus examined capital cases in philadelphia and found that black defendants were significantly more likely to be sentenced to death after controlling for a host of other relevant factors.54 in fact, it is conceivable that the absence of race-of-defendant effects in some published studies is a consequence of the failure to analyze prosecutorial and jury decision-making processes separately. studies also indicate that other extra-legal factors influence the administration of capital punishment.55 for example, some researchers have found that defendants convicted of killing women or children, and those who used a knife, are more likely to receive the ultimate sanction.56 the type of location also appears to matter, with defendants sentenced in rural and suburban areas more likely to be sentenced to death than their urban counterparts.57 in sum, there is substantial evidence that race and other extra-legal factors have continued to impact capital sentencing processes in locales across the country: most studies report that the race of the victim has a significant impact on capital case outcomes, and some, though not all, find that the race of the defendant also influences the administration of capital punishment. studies that analyze prosecutorial and jury decisionmaking separately often find that race matters most at the sentencing phase of the capital process.58 evidence that race continues to matter in capital cases challenges the widespread belief that we are, in the post-furman era, 59 “post-racial.” although overt, conscious, and intentional racism has diminished considerably in recent years, a number of studies show that both structural racism—racially unequal outcomes that flow from facially neutral institutional arrangements, policies or practices—and implicit (i.e., unconscious) racial bias persist.60 indeed, numerous experimental studies of implicit bias show that race affects perception and decision-making even in the absence of overt racial animus or antipathy. below, we provide a brief overview of experimental studies examining the impact of implicit bias on jury deliberations and capital sentencing. 52 david c. baldus, julie brain, neil a. weiner & george woodworth, evidence of racial discrimination in the use of the death penalty: a story from southwest arkansas (1990-2005) with special reference to the case of death row inmate frank williams, jr., 76 tenn. l. rev. 555 (2009). 53 john j. donohue iii, an empirical evaluation of the connecticut death penalty system since 1973: are there unlawful racial, gender and geographic disparities?, stanford law school, working paper no. 464 (2014), http://ssrn.com/abstract=2470082. 54 baldus, woodworth, zuckerman, weiner & broffitt, supra note 51, at 1714. 55 donohue iii, supra note 53, at 696. 56 see songer & unah, supra note 45, at 191–97. 57 see baldus & woodworth, supra note 6, at 520; donohue iii, supra note 53, at 52–57. 58 baldus, woodworth, zuckerman, weiner & broffitt, supra note 50, at 1715–22; isaac unah, empirical analysis of race and the process of capital punishment in north carolina, 2011 mich. st. l. rev. 609, 646–48 (2011). 59 furman v. georgia, 408 u.s. 238 (1972). 60 bobo, kluegel & smith, supra note 9. 2016 columbia journal of race and law 87 b. the role of implicit racial bias researchers refer to the unconscious impact of race as “implicit bias” in order to differentiate it from conscious racial animus.61 a significant and growing body of research suggests that implicit biases are pervasive, even among individuals who do not openly express biased views.62 for example, experimental studies show that stereotypes such as the association between blackness and violence are widespread: the mere visual presence of a black man increases the likelihood that observers will think about the concepts with which black men are stereotypically associated (e.g., violence), interpret ambiguous behavior as aggressive, and miscategorize ambiguous objects as weapons. 63 moreover, the association between blackness and violence is bi-directional: images of blackness bring violence and criminality to mind, while discussions of violence conjure images of blackness in the minds of many.64 these studies provide compelling evidence that the unconscious association between blackness and violence is widespread and influences how people perceive and interpret behavior, objects and social situations. with respect to capital sentencing, numerous studies show that implicit racial bias shapes the identification and processing of death-eligible cases. for example, researchers using experimental methods to examine implicit biases among jury-eligible citizens in six leading death penalty states found that many citizens harbored implicit racial stereotypes about blacks and placed more value on the lives of whites.65 moreover, the more mock jurors showed implicit racial bias, the more likely they were to sentence black defendants to death. 66 similarly, experimental studies show that death-qualified jurors who viewed a simulated california capital trial were significantly more likely to recommend death when the video depicted the defendant as black rather than white.67 experimental studies further suggest that the association between blacks and violence is mediated by an unconscious but widespread association between black human beings and animals.68 this dehumanizing association appears to influence basic cognitive processes and significantly alter judgments in criminal justice contexts.69 for example, researchers conducting an archival study of capital cases found that news stories about black defendants convicted of capital crimes are significantly more likely to contain ape-relevant language than news stories about white capital defendants. moreover, defendants depicted in more ape-like ways are more likely to be executed than others even after controlling for relevant legal factors.70 in follow 61 robert j. sampson & stephen w. raudenbush, seeing disorder: neighborhood stigma and the social construction of “broken windows”, 67 soc. psychol. q. 319, 320–21 (2004). see also lincoln quillian, does unconscious racism exist?, 71 soc. psychol. q. 6, 7 (2008). 62 see task force on race and the criminal justice system, preliminary report on race and washington’s criminal justice system, 17–21 (2011), http://www.law.washington.edu/about/racetaskforce/preliminary_report_race_criminal_justice_030111.pdf. 63 b. keith payne, prejudice and perception: the role of automatic and controlled processes in misperceiving a weapon, 81 j. pers. & soc. psychol. 181, 190 (2001) (discussing the miscategorization of objects for weapons); joshua correll, bernadette park, charles m. judd & bernd wittenbrink, the police officer’s dilemma: using ethnicity to disambiguate potentially threatening individuals, 83 j. pers. & soc. psychol. 1314, 1324–28 (2002). 64 jennifer l. eberhardt, phillip atiba goff, valerie j. purdie & paul g. davies, seeing black: race, crime and visual processing, 87 j. pers. & soc. psychol. 876, 877 (2004). 65 justin d. levinson, robert j. smith & danielle m. young, devaluing death: an empirical study of implicit racial bias on jury-eligible citizens in six death penalty states, 89 n.y.u. l. rev. 513 (2014). 66 id. 67 tara l. mitchell, ryann m. haw, jeffrey e. pfeifer & christian a. meissner, racial bias in mock juror decisionmaking: a meta-analytic review of defendant treatment, 29 law & human behav. 621, 631 (2005). see also samuel r. sommers, race and the decision-making of juries, 12 legal & crim. psychol. 171, 177 (2007). 68 phillip atiba goff, jennifer l. eberhardt, melissa j. williams & matthew christian jackson, not yet human: implicit knowledge, historical dehumanization, and contemporary consequences, 94 j. pers. & soc. psychol. 292 (2008). 69 id. at 303–04. 70 id. 88 race, death, and justice vol. 6:2 up studies, researchers found that the degree to which black defendants have a stereotypically black appearance is an important predictor of the imposition of a death sentence in cases involving black defendants and white victims.71 there is, then, ample evidence that implicit racial biases are widespread and affect decision-making in general and in capital cases specifically. but bias is not just a property of individuals; its expression can also be encouraged or suppressed by social context. 72 recent scholarship indicates that jury selection and deliberation dynamics tend to encourage the expression of implicit racial bias and favor death sentences.73 for example, experimental studies indicate that mock jurors are more likely to shift their initial position from life to death than from death to life. researchers attribute this pattern to the emotional strategies and tactics employed by pro-death jurors.74 white male jurors play an especially important role in encouraging such verdicts by utilizing “a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.”75 this racial effect may also stem in part from the fact that jurors are less likely to give credence to mitigating evidence offered on behalf of black defendants.76 in fact, findings from experimental studies suggest that evidence regarding mitigating circumstances that may be perceived as exculpatory for white defendants is often ignored or even interpreted as incriminating when defendants are black.77 for example, although being raised in an abusive home is often interpreted as a mitigating circumstance for white defendants, the same background often works to pathologize black defendants, casting violence as a way of life.78 moreover, the process of death qualification may amplify implicit biases, and jury deliberations have been shown to exacerbate the tendency of mock white jurors to sentence black defendants to death more frequently than white defendants.79 the fact that jury selection and deliberation processes encourage the expression of implicit biases and favor death sentences may help explain the fact that jurors are more likely to impose death sentences, and are more influenced by the age and race of the victim and defendant, than are judges.80 in short, a wide body of literature shows that implicit racial biases have a powerful impact on decision-making in both real and simulated capital cases, and are especially likely to be activated in the sentencing phase of capital trials. in the next section, this article investigates the possibility that race may also affect capital case processing in washington state, where death may only be imposed in the most serious, aggravated homicide cases and prosecutorial discretion is comparatively circumscribed. based on our analysis of the nature of washington’s statutory framework, which reduces the scope of prosecutorial discretion, as well as evidence that jury selection and deliberation processes tend to elicit and amplify implicit racial biases, 71 jennifer l. eberhardt, paul g. davies, valerie j. purdie-vaughns & sheri lynn johnson, looking deathworthy: perceived stereotypicality of black defendants predicts capital-sentencing outcomes, 17 psychological science 383, 384 (2006) (discussing a study in which participants were asked to rate the stereotypicality of black faces based on a variety of facial features as well as skin tone and the correlation between these features and case outcomes is assessed). 72 mona lynch & craig haney, emotion, authority and death: (raced) deliberations in mock capital jury deliberations, 40 law & soc. inquiry 377 (2015). 73 id. 74 id. at 391–94. 75 id. at 394–401. 76 id. see also mona lynch & craig haney, looking across the empathic divide: racialized decision making on the capital jury, 2011 mich. st. l. rev. 573 (2011). 77 id. at 574. 78 lynch & haney, supra note 72, at 398. 79 mona lynch & craig haney, capital jury deliberation: effects on death sentencing, comprehension, and discrimination, 33 law & human behav. 481, 491, 493 (2009); see also lynch & haney, supra note 72. 80 radha iyengar, who’s the fairest in the land? analysis of judge and jury death penalty decisions, 54 j. l. & econ. 693, 695–96, 708 (2011). 2016 columbia journal of race and law 89 this article hypothesizes that race is most likely to matter at the sentencing rather than filing phase of the capital process. before testing this hypothesis, this article provides a brief overview of the data and methods. iii. data, methods and analytic strategy a brief historical overview of the statutory history and framework in washington state helps to contextualize our study. in 1854, the territorial legislature adopted the death penalty as an automatic penalty for anyone convicted of first-degree murder.81 in 1909, the legislature authorized the imposition of either a sentence of death or life imprisonment for persons convicted of that crime, thus rendering the death penalty non-mandatory.82 in the aftermath of the decision in furman v. georgia,83 the washington legislature abolished the death penalty altogether, but then reinstated it in 1977 after adding additional procedures designed to reduce arbitrariness in its application.84 this statute was eventually declared unconstitutional because it specified that defendants who pled guilty would not receive a sentence of death, while defendants who exercised their right to a trial remained vulnerable to that sanction.85 washington’s existing death penalty statute was enacted in 1981, and stipulates that only aggravated first-degree murder convictions can result in a death sentence.86 life without the possibility of parole is the only other possible sentence in these aggravated murder cases.87 if prosecutors intend to seek a death sentence, they must file a notice of a special sentencing proceeding (sometimes referred to as a death notice). if such a notice is filed, and the defendant is convicted of aggravated first-degree murder, then a special sentencing proceeding takes place absent a legal development that precludes a special sentencing proceeding. trial judges are required to file reports in all aggravated murder cases.88 these trial reports are required in order to facilitate proportionality review. specifically, rcw 10.95.130(2)(b) mandates that the court determine whether “the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”89 “similar cases” means all cases resulting in one or more convictions for aggravated murder, regardless of whether a death sentence was sought or imposed.90 the purpose of this review “is to ensure that the sentence, in a particular case, is proportional to sentences given in similar cases, is not freakish, wanton or random; and is not based on race or other suspect classifications.”91 a. data and analytic strategy this study analyzes data derived from trial reports pertaining to aggravated murder cases filed with the washington state supreme court between december 1981 and may 2014—a total of 332 cases.92 it is important to note that trial reports are produced only in cases in which prosecutors establish that one or 81 l.g. hellwig, death penalty in washington: an historical perspective, 57 wash. l. rev. 525 (1982). 82 act of march 22, 1909, ch. 249, § 140, 1909 wash. sess. laws 890, 930 (repealed 1975). 83 furman v. georgia, 408 u.s. 238 (1972). 84 act of june 10, 1977, ch. 206, §§3–7, 1977 wash. sess. laws 774, 776–79, invalidated by state v. frampton, 627 p.2d. 922 (wash. 1981). 85 id. 86 wash. state bar ass’n, final report of the death penalty subcommittee to the committee on public defense 5 (2006). 87 id. 88 id. at 6. 89 wash. rev. code § 10.95.130 (2010). 90 id. 91 state v. cross, 132 p.3d 80, 104 (wash. 2006). 92 although there were 332 trial reports describing different special sentencing proceedings, we refer to a total of 331 cases because the hearing described in trial report 292 was not an aggravated murder case, trial reports 34 and 34a reflect two separate aggravated murder convictions for one defendant, and the defendant in the case described in trial report 16a was convicted prior to the adoption of the current sentencing statute. 90 race, death, and justice vol. 6:2 more aggravating circumstances apply. because our data derive mainly from trial reports, we are unable to assess whether some homicide cases could have been determined to be aggravated (and therefore deatheligible) murder cases, but were not. although it is conceivable that extra-legal factors such as race influence this process, we are unable to assess whether this is the case given the nature of the data analyzed here. twenty-nine of the aggravated murder cases for which trial reports are available involved defendants who were under the age of eighteen at the time of the offense. these individuals were not eligible for the death penalty. in 1993, the washington state supreme court determined that juveniles are ineligible for the death penalty.93 in this ruling, the court also construed the statute to mean that the death penalty could never have been imposed upon juveniles. for these reasons, minors were excluded from the analyses presented here. three adult defendants were also ineligible due to extradition agreements that precluded the imposition of a death sentence. in addition, two defendants were excluded because it was determined after the trial report was completed that, in one instance, the crime was committed before the effective date of the current statute and, in the second case, the defendant was not convicted of aggravated murder. (see appendix b for the list of trial reports excluded from the analyses.) after these exclusions, the sample includes 298 aggravated first-degree murder cases involving deatheligible adult defendants. prosecutors sought the death penalty in 29.1 percent of the cases involving deatheligible adults (87 out of 298), and juries imposed the death penalty in 42.7 percent of the cases in which death notices were filed and not later withdrawn (35 out of 82). some of these death sentences were overturned on appeal. of the 298 adults convicted of aggravated murder in washington state between december 1981 and may 2014, five have been executed and another nine are currently on death row.94 the trial reports were coded according to a detailed coding protocol. 95 two university of washington students were trained to enter information from the trial reports into an excel spreadsheet; these assistants cross-checked their work to ensure reliability. in other words, subjective judgments were not required. 96 for example, whether there was extensive publicity surrounding the case in question was determined by judges who checked either a yes or no box in response to this question; our data entry assistants did not make this judgment, but rather simply recorded whether the box was checked. although the trial reports ask judges to supply information about a wide range of case, defendant, and victim characteristics, we discovered through the data entry process that many of the trial reports were incomplete. we were therefore unable to include a number of potentially relevant factors (such as defendant iq and mental health status) in our analyses that may also influence the administration of capital punishment. nevertheless, the coding process yielded a fairly comprehensive database that included information about numerous case, victim, and defendant characteristics. in addition, we supplemented the data gleaned from trial reports with information regarding victim demographics from newspaper articles and other case materials. we also compiled data regarding several county characteristics for inclusion in our analyses. consistent with other recent studies of the role of race and other extra-legal factors in capital case processes, 93 state v. furman, 858 p.2d 1092 (wash. 1993). 94 see washington state department of corrections, capital punishment in washington state, http://www.doc.wa.gov/offenderinfo/capitalpunishment/. 95 this coding protocol was developed and implemented in consultation with appellate defense attorneys lila silverstein and neil fox. 96 the only exception was the mitigating circumstances variable, about which judges often hand-wrote notations that required some legal knowledge to interpret. for this reason, we relied on the legal expertise of mr. gregory’s attorneys in coding this variable. in addition, research assistants were asked to record whether judges indicated in words that a victim’s suffering was prolonged or allowed to endure over time. however, this variable was not included in the final analyses because sensitivity analysis revealed that it was consistently insignificant. 2016 columbia journal of race and law 91 we included several county-level variables, including measures of population density, demographic composition, and voting behavior, all of which were compiled from the united states census bureau. in addition, data regarding county revenues and expenditures were taken from the office of financial management’s washington state data book. we used the bureau of labor statistics’ online inflation calculator to convert county revenue figures to constant 1981 dollars for meaningful comparison. 97 appendix c provides a detailed description of the source and measurement for each variable. in the aggravated murder cases this article analyzes, prosecutors may or may not have filed a death notice. if a death notice was filed and a special sentencing proceeding occurred, juries may (or may not) have imposed a sentence of death. the analyses presented here employ regression methods to assess the role of race in the two main stages of capital sentencing in washington state. specifically, this article analyzes: a) prosecutorial decisions to file a death notice; and b) whether a death sentence was imposed in cases in which a special sentencing proceeding occurred. these regression analyses allow us to ascertain whether the race of the victim and/or defendant influence either prosecutorial decisions to file a death notice and/or decisions by juries to impose a sentence of death. part iv provides descriptive information regarding the prevalence and distribution of death sentences in washington state. part iv begins by comparing the proportion of cases in which death notices were filed and death sentences were imposed at the county level in order to assess whether there is significant county-level variation in the seeking and imposition of death sentences. next, part iv compares the proportion of black, white, and other defendants who were convicted of aggravated murder against whom prosecutors filed death notices, who were sentenced to death, and who have been executed or are currently on death row. finally, part iv compares the proportion of cases involving a black defendant and white victim that resulted in a death sentence with the proportion of cases with different defendant-victim configurations in which a death sentence was sought or imposed. the results of these preliminary, descriptive analyses show that there is notable variation in the proportion of aggravated murder cases in which prosecutors seek, and juries impose, the death penalty at the county level. they also suggest that prosecutors filed death notices in a larger share of cases involving white than black defendants. by contrast, a comparatively large proportion of black defendants against whom death notices were filed were sentenced to death. it is important to note, however, that these descriptive results are suggestive rather than conclusive because they do not take into account the many legal factors that may influence prosecutorial and jury decision-making. to remedy this, part v presents the results of statistical regression analyses that assess whether race impacts key outcomes when a full array of case characteristics are taken into account.98 b. statistical methods regression is a statistical technique used to estimate the degree of correlation among variables included in a given model. regression models include an outcome or dependent variable—in this case, a death notice or death sentence—as well as a number of factors (independent variables) that may affect the outcome. the results of the regression analysis reveal how much the outcome changes when any one of the independent variables is varied and the other independent variables are held constant. regression analysis 97 detailed information about the sources and measurement of the variables analyzed is presented in appendix c. 98 a report completed in october 2014 presented several of these models. three data errors have been corrected since that time. in addition, the case described in trial report 34a was included in the analysis. these corrections very slightly changed the size of individual regression coefficients. see washington state department of corrections, capital punishment in washington state, http://www.doc.wa.gov/offenderinfo/capitalpunishment/. 92 race, death, and justice vol. 6:2 thus allows researchers to identify the unique impact of each independent variable—in this case, the race of the defendant and victim—over and above the impact of the other variables included in the model. by convention, social scientists often identify statistical significance when the p-value is less than .05. this provides a rejection region of 2.5 percent at either end of the sampling distribution, leading us to reject the null hypothesis when results fall above or below those cut off points.99 however, when hypotheses are directional (e.g., the researcher expects covariates to increase and not decrease the probability of receiving the death penalty), the five percent rejection region is weighted at one side of the sampling distribution, leading us to reject the null hypothesis when the p-value is less than .10. because few (if any) studies find that white defendants are more likely to be sentenced to death than are black defendants, but many studies find that black defendants are more likely to be sentenced to death than others, we hypothesize that the impact of a defendant’s race (blackness) will increase, and not decrease, the odds that a death sentence is imposed. we therefore report the p-values of covariates that are statistically significant at both the .05 and .10 levels.100 diagnostic tools were used to help identify the most appropriate regression models. when cases are nested in groups, such as counties, multilevel analysis is often used to isolate the statistical impact of the individual county. fixed effects models are another common strategy to control for shared error among observations belonging to the same group. however, these methods are not appropriate in this case due to the unequal distribution of cases across counties. in the data analyzed here, twenty-eight counties are represented, but twenty-one counties have had fewer than ten death penalty cases since december 1981. roughly ten percent of the aggravated murder cases occurred in counties with fewer than five trials. in fact, twelve counties have heard only one capital case since 1981. in these counties, then, there is little or no variation in the dependent variable. multilevel analysis is therefore not appropriate for this analysis.101 instead, we fitted logistic regression models, each with an outcome of 0 or 1, using maximum likelihood estimate (“mle”) procedures to estimate the probability of receiving a death notice or death sentence given a number of independent variables. in general, mle estimates should be interpreted with caution for samples with fewer than 100 cases.102 as a precaution, we conducted careful sensitivity analyses, including and excluding case and county characteristics to gauge their impact on the pattern of results. we also conducted diagnostics to determine whether the results were unduly influenced by any outliers (individual cases that exhibit statistical leverage and/or influence).103 we present parsimonious models that 99 the null hypothesis asserts that there is no statistical association between two variables. alan agresti & barbara finlay, statistical methods for the social sciences 164–69 (3d ed. 1997). 100 inclusion of the p ≤ .1 threshold is appropriate for several other reasons as well. first, it is arguable on ethical (and constitutional) grounds that the risk of a falsely negative conclusion, which would be to conclude that race is not significant in the context of capital sentencing when in fact it is significant, is greater than the risk of a false positive, which is believing that the race of defendant matters when it does not. second, other published studies of capital sentencing include an alpha level of .10. see david c. baldus, catherine m. gross, george woodworth and richard newell, racial discrimination in the administration of the death penalty: the experience of the united states armed forces (1984-2005), 101 journal of criminal law & criminology 1227 (2012); john donahue iii, empirical evaluation of the connecticut death penalty system since 1973: are there unlawful racial, gender and geographic disparities?, 11 journal of empirical legal studies 637 (2014). it is also worth noting that p-values are less important when populations rather than samples are analyzed, because the results are not used to draw inferences or generalize to other populations. see alberto abadie, susan athey, guido w. imbens & jeffrey m. wooldridge, finite population causal standard errors, working paper 20325, http://www.nber.org/papers/w20325 101 see generally tom a. b. snijders & roel j. bosker, multilevel analysis: an introduction to basic and advanced multilevel modeling (1999). 102 see scott j. long & jeremy freese, regression models for categorical dependent variables using stata (2d ed. 2006). 103 diagnostic tests revealed one potential outlier. however, removing this case from the analysis had no meaningful impact on the results, and it is therefore included in our analyses. 2016 columbia journal of race and law 93 include theoretically and substantively important variables and findings that are robust across various model specifications. as in similar studies conducted in other venues, two types of variables were included in the regression models: case characteristics, some of which we would expect to impact case outcomes, and extralegal factors (such as race), which ideally would not. in the analysis of prosecutorial decision-making, we included case characteristics that have been found to be significant in some studies and would have been known to prosecutors early in the criminal process: the number of prior convictions possessed by the defendant; the number of victims; the number of aggravators alleged by prosecutors to exist (rather than found by juries); whether the defendant was suspected of also committing a sex crime in the course of the homicide; and whether the victim was a law enforcement officer. after assessing the role of case characteristics, we added several extra-legal factors to the models, as suggested by prior studies. in the analysis of prosecutorial discretion, these included: race of the defendant and the victim(s); whether the victim was female, a child, or a stranger; whether the defendant used a gun; and whether there was extensive publicity about the case. we also tested four county-level variables: the population density of the county in which the conviction occurred; the percentage of the county population that is black; per capita county revenue; and the share of the county population that voted republican in the most proximate presidential election. in the analysis of jury decision-making, we included case characteristics that have statutory or other legal significance and would likely have been known by judges and jurors. these include the number of prior convictions possessed by the defendant; whether there were multiple victims; the nature of the defendant’s plea (guilty vs. not guilty);104 the number of aggravating circumstances found by the jury; the number of mitigating circumstances; the number of defenses offered; and whether the victim was held hostage. 105 drawing on prior studies, we also tested the significance of a number of social factors, including the race, gender, and age of victims, and whether the victim was known to the defendant. county-level factors, including racial composition, political orientation, per capita county revenue, and population density were also tested. for each set of regression analyses, we present the results obtained when case characteristics and defendant race are included in the model. in the analysis of prosecutorial decision-making, we are able to simultaneously include a variety of other victim, case and county characteristics in the model as well. unfortunately, the smaller number of cases means that not all of these factors can be included in the analysis of jury decision-making at once. model testing, sometimes referred to as sensitivity analysis (in which the impact of these variables is tested in a variety of combinations), suggested that the only extra-legal factor that was consistently relevant to the outcome is the race of the defendant. however, given that many studies find that the race of the victim is significant, the results obtained when victim race is included in the model are also presented. finally, we present the results obtained when a range of victim and county characteristics are included in the model in a step-wise manner. these results allow us to assess the degree to which outcomes in aggravated murder cases are influenced by race and other extra-legal factors over and above any differences in case characteristics. diagnostic tests indicated that a handful of cases are univariate outliers with respect to the number of victims. we therefore measured the number of victims in terms of three categories: one victim; two to four 104 in the majority of cases, the same judge or jury served during both the guilt phase and the sentencing phase of the trial. in such cases, the judge or jury would have known whether the defendant pled guilty. in the small number of cases in which different decision-makers deliberated during the guilt and sentencing phases of the process, the nature of the defendant’s plea may not have been known to the jurors serving in the sentencing phase. 105 in these analyses, we treat evidence that the victim was held hostage as a measure of victim suffering. 94 race, death, and justice vol. 6:2 victims; or five or more victims. diagnostics also showed that three variables were heavily skewed. these included the number of prior convictions, number of mitigating circumstances, and county per capita revenue. logging these variables normalized their distribution and improved the model fit. the number of defenses and aggravators also showed some signs of skew, but after testing, the model fit was better (assessed by comparing log likelihood values, likelihood chi-squared ratio tests, and pseudo r2 scores) when these variables were not logged.106 logged variables are identified in the tables with the standard notation (ln). iv. preliminary findings: descriptive statistics the descriptive statistics presented below provide a preliminary overview of the distribution of efforts to obtain, and decisions to impose death sentences by county and across various groups of defendants. table 2 shows the proportion of aggravated murder cases involving adult defendants in which prosecutors filed a death notice and in which a death sentence was imposed across washington state counties. all counties in which five or more aggravated murder cases occurred between december 1981 and may 2014 are identified individually. we also include information about the average number of victims and aggravators present in the cases adjudicated in each county. as table 2 makes evident, the proportion of aggravated murder cases in which prosecutors seek death varies notably. in thurston county, prosecutors sought the death penalty in sixty-seven percent of all aggravated murder cases. by contrast, prosecutors in okanogan county did not seek the death penalty in any of the eight cases that took place there. in larger counties with more aggravated murder cases, the proportion of cases in which prosecutors sought death also varied markedly, from a high of forty-eight percent in kitsap county to a low of zero percent in yakima county. the proportion of cases involving defendants who had special sentencing proceedings in which juries imposed a sentence of death also varies notably. focusing on counties with more than one such case, the proportion ranges from a high of seventy-five percent in clark county to twenty-five percent in clark county. moreover, it does not appear that these differences are a function of the number of victims or aggravating circumstances involved in the relevant cases. 106 see appendix c for detailed information about variable measurement and transformation. 2016 columbia journal of race and law 95 table 2. proportion of aggravated murder cases with death-eligible defendants in which death was sought and imposed, by county, december 1981 – may 2014 county proportion of aggravated murder cases in which death notices were filed proportion of aggravated murder cases in which death notices were filed (and retained) and the death penalty was imposed average number of victims in cases adjudicated in the county average number of aggravators in cases adjudicated in the county thurston 67% (4/6) 50% (2/4) 1 2 clallam 50% (3/6) 67% (2/3) 2 2 kitsap 48% (10/21) 25% (2/8) 1 3 pierce 46% (25/54) 44% (11/25) 2 2 spokane 40% (8/20) 29% (2/7) 1 2 snohomish 23% (7/31) 71% (5/7) 1 3 king 22% (16/72) 40% (6/15) 3 2 clark 18% (4/22) 75% (3/4) 1 3 whatcom 17% (1/6) 100% (1/1) 1 2 benton 13% (1/8) 100% (1/1) 2 2 cowlitz 13% (1/8) 0% (0/1) 1 2 skagit 0% (0/5) na (0/0) 1 3 okanogan 0% (0/8) na (0/0) 1 1 yakima 0% (0/9) na (0/0) 2 1 all washington state counties 29% (87/298) 43% (35/82) 2 2 note: counties with five or more aggravated murder cases are individually identified, but all counties are included in the totals. the figures shown in table 2 thus suggest that the likelihood that prosecutors will seek and juries will impose death for a given aggravated murder defendant may depend in part on the county the case is adjudicated. table 3 compares the proportion of black, white and other death-eligible defendants against whom prosecutors filed a death notice and, among those who had a special sentencing proceeding, the share that received a death sentence. this table also shows the proportion of cases in which death sentences survived the appeals process for each racial group.107 the findings indicate that prosecutors sought death sentences in a larger proportion (thirty-three percent) of aggravated murder cases involving white defendants than they did in cases involving black (twenty-five percent) or other (twenty percent) defendants. however, juries imposed death in forty percent of the cases involving white defendants, but sixty-four percent of the 107 this information was provided to us by attorneys lila silverstein and neil fox. 96 race, death, and justice vol. 6:2 cases involving black defendants, in which prosecutors filed a death notice. interestingly, the death penalty has been retained in a larger proportion of cases involving black defendants (twenty-nine percent) than it has in cases involving white (fourteen percent) or other (ten percent) defendants.108 table 3. capital sentence outcomes among death-eligible washington state aggravated murder defendants, december 1981 – may 2014, by race of defendant white black other race all death notice filed 32.6% (62/190) 24.6% (14/57) 20% (10/50) 29.2% (87/298) death penalty imposed 40.4% (23/57) 64.3% (9/14) 30% (3/10) 42.7% (35/82) death penalty retained 14% (8/57) 28.6% (4/14) 10% (1/10) 15.9% (13/82) note: defendant race is unknown in one case; the category “all” therefore includes one case more than the sum of whites (190), blacks (57) and other race (50). prosecutors filed death notices in 87 cases. in three of these cases, defendants were later determined to be ineligible for special sentencing proceedings (trial reports 68, 217, and 308). in two additional cases, defendants subsequently entered a stipulated guilty plea and a special sentencing hearing therefore did not occur (trial reports 152 and 153). these defendants are not included in the figures above (n=82). in light of research indicating that the race of victims often influences the likelihood that defendants receive the death penalty, table 4 compares outcomes for black and white defendants convicted of killing a single white victim versus a single black victim. (this analysis is limited to cases involving just one victim mainly because it is difficult to categorize cases involving multiple victims with different racial identities). the results show that prosecutors sought death in a slightly larger share of cases involving white victims and either black or white defendants (twenty-eight and twenty-nine percent, respectively) than in cases involving a black defendant and black victim (twenty percent). however, a death sentence was imposed in a substantially larger proportion of cases involving black defendants than it was in cases involving white defendants—regardless of the race of the victim. for example, of cases involving a single white victim, death sentences were imposed in twenty-four percent of the cases involving white defendants but seventy-one percent of those involving black defendants. these figures provide preliminary support for the hypothesis that the race of the defendant, but not the race of the victim, significantly impacts sentencing outcomes in capital cases. interestingly, the death penalty has also been retained in a larger share (twenty-nine percent) of cases involving a black defendant and white victim than in cases involving other racial configurations. 108 “retained” in this context means the death sentence was not reversed by a higher court or was re-imposed after reversal of the original death sentence. 2016 columbia journal of race and law 97 table 4. capital case outcomes among death-eligible washington state aggravated murder defendants, december 1981 – may 2014, by race of defendant and race of victim defendant/victim race death notice filed death penalty imposed death penalty retained black defendant/ white victim 28% (7/25) 71.4% (5/7) 28.6% (2/7) black defendant/ black victim 20% (1/5) 100% (1/1) 0% (0/1) white defendant/ white victim 28.8% (34/118) 24.2% (8/33) 9.1% (3/33) white defendant/ black victim 0% (0/0) 0% (0/0) 0% (0/0) note: figures include only black and white “death eligible” defendants with one white or black victim. in summary, the preliminary, descriptive findings presented above suggest that counties vary notably in their propensity to seek and impose death in aggravated murder cases. they also provide support for the hypothesis that the race of the defendant influenced decisions to impose (but not seek) the death penalty in aggravated murder cases adjudicated in washington state from december 1981 to may 2014. prosecutors filed death notices in a larger share of cases involving white (thirty-three percent) versus black (twenty-five percent) defendants. by contrast, among cases in which special sentencing proceedings occurred, juries imposed death in forty percent of the cases involving white defendants, but sixty-four percent of the cases involving black defendants. however, it is conceivable that this stark racial disparity is a function of case characteristics rather than of race itself. for example, if cases involving black defendants have, on average, more aggravating circumstances or fewer mitigating circumstances than cases involving white defendants, this could explain why juries sentence black defendants to death more frequently than they do white defendants. in the next section, this article presents the results of regression analyses that control for these and other factors and then isolates the unique impact of race on case outcomes. v. regression results we present two sets of regression analyses. the first set analyzes the impact of case characteristics and a variety of social factors on prosecutors’ decisions to file a death notice.109 the second set identifies the case characteristics and social factors that influence sentencing decisions in capital cases in which a death notice was filed and not withdrawn. as noted previously, multivariate regression analysis identifies significant relationships between the independent variables included in the model and the outcome (dependent) variable. the coefficients provide a measure of the direction and strength of the correlation between each potential explanatory variable and the outcome being analyzed. the direction of the association (i.e., whether the coefficient has a negative or positive value) indicates whether the variable causes a decrease or an increase in the likelihood of receiving a death notice or a death sentence. coefficients resulting from a logistic mle model are presented as log-odds. in order to facilitate interpretation, we convert these to odds ratios. odds ratios reveal how changes in the independent variable impact the odds of the outcome of interest. for example, the odds ratio for black defendant presented in our first model of sentencing outcomes is 4.646, which means that juries are 4.6 times more likely to sentence a defendant to death when he/she is black. 109 in three of these cases, death notices were filed but judges later ruled that the defendants were ineligible for a special sentencing proceeding. in two additional cases, defendants subsequently entered a stipulated guilty plea and a special sentencing hearing therefore did not occur. in the analyses of prosecutorial decision-making, we include all cases in which prosecutors filed a death notice. however, in the analyses of jury decision-making, we include only cases in which a death notice was filed and a special sentencing proceeding occurred. see appendix b for trial report numbers. 98 race, death, and justice vol. 6:2 it is important to note that the results of these analyses identify which of the explanatory variables included in the model are significantly associated with the dependent variable holding all other variables included in the model constant. that is, regression analysis simultaneously takes a number of factors into consideration and identifies the unique impact of each variable on the outcome. if the regression results indicate that being black is positively and significantly associated with being sentenced to death, this would mean that defendants who are black are more likely to be sentenced to death after taking all other variables in the model into account. a. factors influencing prosecutorial filing decisions in aggravated murder cases the regression models presented below assess the extent to which a variety of case characteristics predict whether prosecutors filed a death notice in aggravated murder cases involving death-eligible defendants. these models include case characteristics that are evident in the early stages of criminal processing: the (logged) number of prior convictions; the number of victims; whether the defendant was also suspected of committing a sex crime; whether the victim was a law enforcement officer; and the number of aggravating circumstances alleged by prosecutors.110 we included the number of aggravating circumstances alleged by prosecutors because prosecutors do not yet know how many of these aggravating circumstances will be found by the jury. because the defendant’s plea is sometimes entered after prosecutors have decided whether to seek death, it is not included as a potential predictor in this analysis. table 5 shows the results that are obtained when the case characteristics identified above as well as a variety of defendant, victim, and county characteristics are included in the model. note that the coefficients are log-odds. negative values indicate that the predictor reduces the probability that prosecutors filed a death notice; positive coefficients indicate that the variable in question increased the probability that prosecutors filed a death notice. odds ratios that are less than one mean that the variable in question reduces the likelihood that prosecutors filed a death notice; odds ratios that are greater than one mean that the variable of interest increased the probability that this occurred. in this model, cases are categorized as having either one or more than one victim.111 the results indicate that the number of prior convictions and aggravators, sex crime allegations, and law enforcement victims are significant after controlling for a variety of social factors. specifically, each of these variables significantly increase the odds that prosecutors filed a death notice. for example, the odds ratio for alleged aggravating circumstances is 1.4, meaning that each additional aggravator increased the likelihood that prosecutors sought death by 1.4. victim race (measured as all victims were white compared to cases in which victims were not all white) is marginally significant (p=.087). however, model testing (i.e., sensitivity analysis) indicates that this finding is not consistent across model variants.112 the results further indicate that the race of the defendant does not significantly impact prosecutorial decision-making. victimgender and age also appear to be irrelevant at this stage of the criminal process. 110 we also assessed whether prosecutors were more likely to file a death notice if the victim had been held hostage. the regression results indicated that this case characteristic did not have a significant impact on prosecutorial decision-making. because this information was missing in twenty-one cases, including this variable in the model would have significantly reduced the number of cases analyzed. we therefore elected not to include it in the models presented here. 111 to present the most parsimonious model, we compare the effect of having one victim versus multiple victims in the second regression analysis. 112 for example, when “victim stranger” is omitted from the model above, “victim race” becomes nonsignificant (p-value = .199). similarly, when “child victim” is omitted the model above, victim race becomes nonsignificant (p-value = .107). 2016 columbia journal of race and law 99 however, the results indicate that some extra-legal factors do influence prosecutorial decisionmaking. specifically, whether a case received extensive publicity significantly impacts prosecutors’ decisions: prosecutors were more than three times more likely to seek death in cases characterized by extensive publicity than they were in cases that were not highly publicized (according to the judge). in addition, the size of the black population in the county in which the case was adjudicated significantly impacts the likelihood that prosecutors will file a death notice in aggravated murder cases. these two findings are highly significant at a p-value < 0.01. the results also indicate that prosecutors in counties with relatively large black populations are significantly more likely to file death notices than other prosecutors. this finding is consistent with a significant body of evidence indicating that demographic factors generally, and the size of the black population specifically, have an important impact on criminal justice outcomes.113 table 5. impact of case characteristics and extra-legal factors on prosecutorial decisions to file death notices in aggravated murder cases, december 1981 – may 2014 n = 266 death notice filed r2 = 0.2164 variable coefficient exact p-value odds ratio referent (compared to) case characteristics prior convictions (ln) 0.169 0.015 1.184** 1 victim -0.148 0.701 0.863 multiple victims alleged aggravators 0.322 0.008 1.379*** sex crime 0.865 0.069 2.376* sex crime not indicated law enforcement officer 1.477 0.024 4.378** non-police victim(s) social factors black defendant -0.548 0.237 0.578 non-black defendants extensive publicity 1.301 0.002 3.672*** no extensive publicity victim characteristics white victim(s) 0.744 0.087 2.105* non-white victims female victim(s) -0.017 0.965 0.983 males/both sexes stranger victim(s) -0.259 0.466 0.771 non-stranger victims child victim(s) 0.538 0.216 1.713 adult victim(s) county characteristics percent republican 0.002 0.928 1.002 population density -0.002 0.041 0.998** percent black 0.376 0.000 1.457*** per capita revenue(ln) -0.139 0.770 0.870 * significant at α = .10 ** significant at α = .05 *** significant at α = .01 113 many studies have found that the racial composition of the population is a significant predictor of enhanced penalty. see, e.g., katherine beckett & bruce western, governing social marginality: welfare, incarceration, and the transformation of state policy, 3 punishment & soc’y. 43 (2001); george s. bridges & robert d. crutchfield, law, social standing and racial disparities in imprisonment, 66 soc. forces 699 (1987-1988); clayton mosher, predicting drug arrest rates: conflict and social disorganization perspectives, 47 crime & delinquency 841 (2001); cassia spohn & david holleran, the imprisonment penalty paid by young, unemployed black and hispanic male offenders, 38 criminology 281 (2000); darrell steffensmeier & stephen demuth, ethnicity and judges’ sentencing decisions: hispanics-black-white comparisons, 39 criminology 145 (2001). 100 race, death, and justice vol. 6:2 note: in this model, thirty-two cases (10.8%) were missing data and were therefore dropped from the analysis. the finding that neither the race of the victim nor of the defendant impact prosecutorial decision making in (potentially) capital cases is consistent with our hypothesis that washington’s statutory framework restricts prosecutorial discretion, thus reducing the likelihood that race will impact the exercise of prosecutorial discretion. b. factors influencing the imposition of death sentences in aggravated murder cases death notices were filed and special sentencing proceedings occurred in 82 cases involving adults charged with aggravated murder. capital punishment was imposed in 35 (forty-three percent) of these cases. the next set of regression analyses identifies the factors that influence the decision to impose a sentence of death in these cases. because these analyses only include cases in which prosecutors filed a death notice and a special sentencing proceeding occurred, the sample size is notably smaller than it was in the previous analyses (n = 82). as a result, the number of predictors that can be included in the models at any one time is limited.114 below, we present the results obtained when only case characteristics and defendant race are included in the model. although model testing consistently revealed the race of victim to be insignificant, we also present the results obtained when victim race is also included in this model because it has been found to be a significant predictor in many other studies. the model presented in table 6 includes only case characteristics that would have been known by judges and jurors: the (logged) number of prior convictions; the number of victims (included here as a binary variable for one victim/multiple victims); the number of applied aggravators (as determined by the jury); the (logged) number of mitigating circumstances identified; the number of defenses offered; and whether the victim was held hostage. 115 it also includes the race of the defendant (comparing black to non-black defendants) and the race of the victim (comparing cases with one or more white victims against those in which victims were not exclusively white). these results indicate that the number of aggravators and defenses have a significant impact on sentencing decisions. specifically, each additional aggravator increased the odds that a jury would impose death by 1.9, and each additional defense offered reduced the odds that a jury would impose death by 0.5. the race of the victim is not found to be a significant predictor of sentencing outcomes (p=.47). by contrast, the results indicate that a defendant’s race has a significant impact on sentencing outcomes in aggravated murder cases in which prosecutors file death notices. specifically, black defendants are 4.5 times more likely to be sentenced to death than similarly situated non-black defendants, after controlling for all other variables included in the model (p = .053). 114 see appendix table e1 for complete descriptive statistics regarding the variables included. 115 the defendant’s plea was determined through model testing to be insignificant and, in order to accommodate the inclusion of defendant race, is not included in this model. we also tested the significance of a concomitant sex crime and whether the victim was a law enforcement officer. neither of these factors was found to be a significant predictor of sentencing outcomes, and they are therefore not included in the model. 2016 columbia journal of race and law 101 table 6. impact of case characteristics, defendant race, and victim race on capital sentencing outcomes in death eligible cases, december 1981 – may 2014 n = 77 death penalty imposed pseudo r2 = .2153 variable coefficient exact p-value odds ratio referent (compared to) prior convictions (ln) -0.087 0.528 0.916 1 victim -0.653 0.274 0.520 multiple victims applied aggravators 0.646 0.013 1.908** mitigating circumstances (ln) -0.253 0.103 0.777 defenses -0.737 0.050 0.478* victim held hostage 0.746 0.206 2.108 not held hostage black defendant 1.511 0.053 4.529* non-black defendant white victim -0.545 0.469 0.580 non-white victim * significant at α = .10 ** significant at α = .05 *** significant at α = .01 note: in this model, five cases (6.1%) were missing data and were therefore dropped from the analysis. in order to compare black defendants to white defendants (as well as defendants of other races to white defendants), we also ran a model that included three dummy variables for defendant race (measured as black, white, or another race). following conventional practice, we include two of these categories at a time, using the excluded category as a referent. the regression results in table 7 below. table 7. impact of case characteristics and defendant race on capital sentencing outcomes in death eligible cases, december 1981 may 2014 n= 77 death penalty imposed pseudo r2 = 0.2373 variable coefficient exact p-value odds ratio referent (compared to) prior convictions (ln) -0.095 0.498 0.909 1 victim -0.720 0.223 0.487 multiple victims applied aggravators 0.629 0.016 1.876** mitigating circumstances (ln) -0.263 0.086 0.769* defenses -0.786 0.037 0.456** victim held hostage 0.704 0.235 2.022 not held hostage black defendant 1.557 0.045 4.743** white defendant other race defendant -0.125 0.890 0.883 white defendant * significant at α = .10 ** significant at α = .05 *** significant at α = .01 note: in this model, five cases (6.1%) were missing data and were therefore dropped from the analysis. thus, when black defendants are compared to white defendants (specified as the referent category), the log odds for blacks are 1.56 (meaning that black defendants are 4.7 times more likely that white defendants to receive a death sentence, p = 0.045). other defendants do not statistically significantly differ from white defendants (p = 0.890). in tables 8 and 9 below, we show the coefficients and associated p-values that are obtained under nine additional model specifications. these models include only those case characteristics that have been shown in the models presented above or during model testing be significant (i.e. the number of aggravating 102 race, death, and justice vol. 6:2 circumstances found by the jury; the (logged) number of mitigating circumstances, and the number of defenses offered); defendant race; and various victim and county characteristics. as previously noted, not all of these factors can be included simultaneously in the analysis of jury decision-making due to the (relatively small) number of cases. for this reason, each of the victim and county characteristics is tested separately (but in combination with significant case characteristics and defendant race). table 8. impact of case characteristics, race of defendant, and victim characteristics on capital sentencing outcomes in washington state aggravated murder cases, december 1981 may 2014 death penalty imposed model 1 model 2 model 3 model 4 model 5 odds ratio (p-value) odds ratio (p-value) odds ratio (p-value) odds ratio (p-value) odds ratio (p-value) aggravators 1.88*** (p = .007) 1.88*** (p = .008) 1.94 ** (p = .006) 1.88*** (p = .007) 1.93*** (p = .005) mitigating circumstances (ln) 0.85 (p = .228) 0.82 (p = .156) 0.84 (p = .204) 0.85 (p = .228) 0.88 (p = .365) defenses 0.47** (p = .029) 0.48** (p = .033) 0.46** (p = .028) 0.47** (p = .036) 0.44** (p = .027) black defendant 4.79** (p = .030) 4.28 * (p = .049) 5.64** (p = .021) 4.79** (p = .030) 7.25** (p = .017) white victim(s) 0.596 (p = .468) female victim(s) 0.49 (p = .194) child victims 1.07 (p = .919) victim(s) stranger 0.37 (p = .120) pseudo r2 .2034 .2137 .2193 .2034 .2355 probability > chi2 .0002 .0003 .0002 .0005 .0001 n 80 79 80 80 78 * significant at α = .10 ** significant at α = .05 *** significant at α = .01 note: figures shown are odds ratios; exact p-values are in parentheses. in this table, all significant results are bolded. the race of the defendant remains significant across all five of the models tested here. specifically, the results indicate that black defendants are between 4.3 and 7.3 times more likely to be sentenced to death than non-black defendants controlling for the other variables included in the model. none of the victim characteristics tested in these models appear to be significant predictors of sentencing outcomes in capital cases in washington state. table 9 shows below the results that are obtained when a various county characteristics are included in the model. the results show that the race of the defendant remains significant across all five of the models tested here (with p-values ranging from .027 to .051). in these models, the results indicate that black defendants are from 4.4 to 4.9 times more likely to be sentenced to death than non-black defendants after controlling for the other factors included in the model. only one of the county characteristics tested in these models appears to be a significant predictor of sentencing outcomes in capital cases in washington state: the percent of the county population that voted republican in the most recent presidential election. specifically, the results suggest that jurors in counties with more republican voters are slightly less likely to impose death sentences after controlling for the other variables included in the model.116 notably, the inclusion of this 116 in this case, the odds ratio is .94 which, because it is less than 1, suggests an inverse relationship. 2016 columbia journal of race and law 103 significant predictor in the model does not meaningfully reduce the significance and magnitude of the effect of the race of defendant in the sentencing phase of capital cases. table 9. impact of case characteristics, race of defendant, and county characteristics on capital sentencing outcomes in washington state aggravated murder cases, december 1981 may 2014 death penalty imposed model 6 model 7 model 8 model 9 model 10 odds ratio (p-value) odds ratio (p-value) odds ratio (p-value) odds ratio (p-value) odds ratio (p-value) applied aggravators 1.88 *** (p = .007) 1.94 *** (p = .007) 1.85 ** (p = .010) 1.89 *** (p = .007) 1.91 *** (p = .007) mitigating circumstances (ln) 0.85 (p = .228) 0.85 (p = .234) 0.82 (p = .151) 0.85 (p = .215) 0.86 (p = .273) defenses 0.47 ** (p = .029) 0.46 ** (p = .027) 0.47 ** (p = .045) 0.47 ** (p = .029) 0.46 ** (p = .030) black defendant 4.79 ** (p = .030) 4.37 * (p = .051) 4.46 ** (p = .049) 4.71 ** (p = .033) 4.85 ** (p = .027) % black in county at year of sentencing 1.05 (p = .659) % county voted republican 0.94 * (p = .062) densely populated at year of sentence 1.000 (p = .739) per capita revenue in 1981 real dollars 0.45 (p = .378) pseudo r2 .2034 .2051 .2369 .2044 .2111 prob > chi2 .0002 .0004 .0001 .0005 .0003 n 80 80 80 80 80 * significant at α = .10 ** significant at α = .05 *** significant at α = .01 note: data shown are odds ratios; exact p-values are in parentheses. vi. discussion and conclusion this study is characterized by several limitations. first, our analyses rely largely upon trial reports, and trial reports only exist for cases that have been determined to involve aggravated, first-degree murder. as a result, we are unable to analyze whether and how extra-legal factors, perhaps including race, influence the process by which aggravating circumstances are demonstrated and affirmed. second, the trial reports are incomplete. although we were able to find some of the missing information regarding victim demographics in newspaper reports, this was not easily accomplished for other variables. as a result, we were unable to include some factors (such as a defendant’s iq and mental health status) in our models that may also influence outcomes in capital cases. third, some of the information that is treated in our analyses as a case characteristic may, in fact, be the result of extra-legal factors. for example, the number of aggravators affirmed by the court may in part reflect the quality of defendants’ legal representation. for this reason, our results likely underestimate the influence of extra-legal factors, including race, in capital cases. finally, our analyses of sentencing decisions are limited by the small number of cases in these models, and hence by the small number of control variables that could be included in those models at once. we adopted a multi-faceted strategy for dealing with this challenge. first, we conducted diagnostics to identify any outliers that may have had undue leverage. second, we engaged in sensitivity analysis, testing a variety of case characteristics to determine which of these influenced sentencing outcomes. the results indicate that although victims’ race does not significantly influence juries’ sentencing decisions, the race of defendant does. specifically, the regression results consistently indicate that juries are 104 race, death, and justice vol. 6:2 more than four times as likely to impose a death sentence in cases involving black defendants (after controlling for case characteristics). indeed, the findings regarding the role of defendant race in the sentencing (but not filing) phase of aggravated murder cases in washington state are robust (consistent) across numerous model specifications. although the data set is small, the regression results are remarkably consistent, regularly indicating that black defendants are more than four times more likely to receive a death sentence after controlling for relevant case characteristics across a variety of model specifications. the effect of the race of the defendant on sentencing outcomes remains consistent when black defendants are compared to white defendants and when information about the race of the victim is included in the models. similarly, inclusion of neither victim nor county characteristics in the regression models notably alters this effect. together, the descriptive and statistical results support two main conclusions. the first pertains to intra-state variation in the propensity of prosecutors to seek, and juries to impose, death sentences. the descriptive statistics presented in table 2 show there is significant variation in efforts to obtain death sentences and in decisions to impose them across counties in washington state. indeed, the proportion of cases in which prosecutors sought the death penalty in aggravated murder cases involving death-eligible adult defendants varies notably by county, from a high of sixty-seven percent in thurston county to a low of zero percent in okanogan county. the proportion of cases in which prosecutors sought death also varies markedly across larger counties with more aggravated murder cases, from a high of seventy-five percent in clark county to a low of twenty-five percent in kitsap county. even in the context of a comparatively narrow statutory framework, it appears that prosecutorial discretion persists and is exercised in different ways across counties. the regression results provide additional support for this hypothesis. neither the race of the victim nor the race of the defendant had a significant impact on prosecutorial decisions to seek death. these results are consistent with the descriptive data, which show that prosecutors filed death notices in a notably larger share of cases involving white versus black defendants. however, our results indicate that two other extralegal factors did significantly impact prosecutorial decisions regarding whether to file death notices: whether there was significant publicity about the case, and the size of the black population in the county in which the case was adjudicated. thus, it appears that county-level variation in the propensity to seek death is not strictly a function of legal factors or case characteristics. the fact that extensive publicity increases the likelihood that prosecutors will seek death is not too surprising given that county prosecutors are elected in washington state, and publicity is likely to be seen as an indicator of public concern.117 the effect of the size of the county’s black population on prosecutorial decisions to file death notices is more difficult to explain. researchers have often included measures of the size of the black or non-white population to assess the hypothesis that jurisdictions with larger minority populations are more punitive; evidence that racial composition matters is often interpreted in this manner.118 although we cannot assess whether this interpretation is accurate, the findings clearly indicate that defendants in counties with larger black populations are more likely to have a death notice filed against them. moreover, this effect does not appear to stem from differences in population density, political orientation, or fiscal capacity, as measures of these factors were included in the regression analysis and thus controlled for in the model. in short, although neither the race of the victim nor the race of the defendant appear to affect prosecutorial decision-making, two other extra-legal factors (publicity and the size of the black population in 117 in separate models, we assessed whether cases involving white victims or black defendants were more likely to receive extensive publicity than other cases. the results did not indicate that this was the case when publicly known victim characteristics (number of victims, child victims, etc.) were taken into account. in fact, neither legal nor social characteristics available in these data provide robust predictors of whether a case receives extensive publicity; at most, just over five percent of the variation can be explained by these variables. 118 act of march 22, 1909, ch. 249, § 140, 1909 wash. sess. laws 890, 930 (repealed 1975). 2016 columbia journal of race and law 105 the county in which the case is adjudicated) do matter at this stage of the capital process and help to explain significant variation in death notice filing rates across washington state counties. second, with respect to jury decision-making, the findings indicate that several case characteristics were significant predictors of jury decisions to impose a sentence of death: the number of aggravating circumstances and the number of defenses. surprisingly, the number of victims did not have a significant impact on jury (or prosecutorial) decision-making.119 most dramatically, the findings indicate that juries were significantly more likely to impose a death sentence in cases involving black defendants than they were in cases involving white or other defendants. specifically, the regression results indicate that juries were more than four times more likely to impose a death sentence when the defendant was black than in cases involving similarly situated non-black defendants. when black defendants were compared specifically to white defendants, the results were very similar. nor did the inclusion of information about the race of the victim, other victim characteristics, or county characteristics notably reduce the race-of-defendant effect. although the results presented here are based on analyses of a relatively small data set, they nonetheless consistently indicate that the race of the defendant has had a marked impact on sentencing in aggravated murder cases in washington state since the adoption of the existing statutory framework. these findings are also consistent with the descriptive data, which show that juries imposed death sentences in forty percent of cases involving white defendants but 64 percent of cases involving black defendants. this finding is somewhat unusual in that recent studies of the administration of capital punishment more commonly report race-of-victim effects than race-of defendant effects. on the other hand, our findings regarding the impact of defendant race are consistent with the results of some recent regression-based studies—especially those that analyze prosecutorial and jury-decision-making separately—that also find race-of-defendant effects.120 the finding that washington state juries are more than four times more likely to impose death when the defendant is black is also consistent with the results of numerous experimental studies, which indicate that implicit racial biases influence the propensity of mock jurors to vote for death, and that these biases are exacerbated by jury selection and deliberation processes.121 most importantly, the findings presented here suggest that efforts to limit the role of race in capital sentencing by adopting a statutory framework that narrows the pool of homicide cases in which the death penalty may be imposed will not necessarily eliminate racialized decision-making in capital cases. although it is possible that washington’s comparatively narrow statutory framework helps to explain the absence of raceof-defendant or race-of-victim effects on prosecutorial decision-making in aggravated murder cases, some extra-legal factors, including the size of the counties’ black population, do significantly impact prosecutorial decision-making in washington state capital cases. moreover, the narrowness of this statutory framework still leaves ample room for discretion and discrimination in jury decision-making. the regression results presented here consistently indicate that the race of the defendant is a significant predictor of a jury decision to sentence defendants to death rather than life. indeed, across all of the models presented, the results indicate that juries were more than four times more likely to impose a death sentence when the defendant was black (after controlling for case characteristics). it thus appears that statutory frameworks that effectively constrict the applicability of capital punishment do not do enough to reduce the role of race in capital 119 although perhaps counter-intuitive, this finding is unsurprising given that some of washington state’s most notorious serial and mass murderers—including gary ridgeway (who committed forty-eight murders), ben ng (who was convicted of killing thirteen people), and kwan fai mak (who also committed thirteen murders)—were sentenced to life without parole rather than death. see washington state bar association, final report of the death penalty subcommittee of the committee on public defense 4 (2006). 120 see, e.g., baldus, woodworth, zuckerman, weiner & broffitt, supra note 51, at 1714; baldus, brain, weiner & woodworth, supra note 53; donohue iii, supra note 54; songer & unah, supra note 46. 121 lynch & haney, supra note 72; lynch & haney, supra note 79. 106 race, death, and justice vol. 6:2 sentencing. despite our best efforts and intentions, our quest for color blindness appears to continue to elude us, even in matters of life and death. 2016 columbia journal of race and law 107 vii. appendix a: aggravating factors under rcw 10.95.020, aggravating factors include the following: 1. the victim was a law enforcement officer, corrections officer, or a fire fighter who was performing his or her official duties at the time of the act resulting in death and the victim was known or reasonably should have been known by the person to be such at the time of the killing; 2. at the time of the act resulting in the death, the person was serving a term of imprisonment, had escaped, or was on authorized or unauthorized leave in or from a state facility or program for the incarceration or treatment of persons adjudicated guilty of crimes; 3. at the time of the act resulting in death, the person was in custody in a county or county-city jail as a consequence of having been adjudicated guilty of a felony; 4. the person committed the murder pursuant to an agreement that he or she would receive money or any other thing of value for committing the murder; 5. the person solicited another person to commit the murder and had paid or had agreed to pay money or any other thing of value for committing the murder; 6. the person committed the murder to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group; 7. the murder was committed during the course of or as a result of a shooting where the discharge of the firearm, as defined in rcw 9.41.010, is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge; 8. the victim was: (a) a judge; juror or former juror; prospective, current, or former witness in an adjudicative proceeding; prosecuting attorney; deputy prosecuting attorney; defense attorney; a member of the indeterminate sentence review board; or a probation or parole officer; and (b) the murder was related to the exercise of official duties performed or to be performed by the victim; 9. the person committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime, including, but specifically not limited to, any attempt to avoid prosecution as a persistent offender as defined in rcw 9.94a.030; 10. there was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person; 11. the murder was committed in the course of, in furtherance of, or in immediate flight from one of the following crimes: (a) robbery in the first or second degree; (b) rape in the first or second degree; (c) burglary in the first or second degree or residential burglary; (d) kidnapping in the first degree; or (e) arson in the first degree; 108 race, death, and justice vol. 6:2 12. the victim was regularly employed or self-employed as a news-reporter and the murder was committed to obstruct or hinder the investigative, research, or reporting activities of the victim; 13. at the time the person committed the murder, there existed a court order, issued in this or any other state, which prohibited the person from either contacting the victim, molesting the victim, or disturbing the peace of the victim, and the person had knowledge of the existence of that order; and 14. at the time the person committed the murder, the person and the victim were “family or household members” as that term is defined in rcw 10.99.020(1), and the person had previously engaged in a pattern or practice of three or more of the following crimes committed upon the victim within a five-year period, regardless of whether a conviction resulted: (a) harassment as defined in rcw 9a.46.020; or (b) any criminal assault. in addition, the following conditions must be met: 1. the jury affirmatively answers whether “having in mind the crime of which the defendant has been found guilty, are convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency” at the conclusion of the special sentencing proceeding; and 2. the washington supreme court conducts a proportionality review of a death sentence to determine: (a) whether there was sufficient evidence to justify the death sentence; (b) whether the defendant was mentally retarded; (c) whether it was brought on by passion or prejudice; and (d) whether the sentence was excessive or disproportionate. see rcw 10.95.60, rcw 10.95.70, and rcw 10.95.100. 2016 columbia journal of race and law 109 viii. appendix b: trial reports excluded from the analyses cases described in trial reports numbers 1-332 (including 34a) were included in the analyses with the following exceptions: • one case was not included in the analysis because the defendant was not convicted of aggravated murder.122 • once case was not included because the crime took place before the effective date of the current death penalty statute.123 • three cases were not included in the analysis because defendants were ineligible for the death penalty due to extradition agreements.124 • twenty-nine cases were not included because defendants were juveniles when they committed aggravated murder.125 • three cases were not included in the jury decision-making analysis because although death notices were filed by prosecutors, legal rulings prevented a special sentencing proceeding.126 • two cases were not included in the jury decision-making analysis because after a death notice was filed, the defendants entered a stipulated guilty plea and a special sentencing hearing therefore did not occur.127 122 tr no. 292. 123 tr no. 100. 124 tr nos. 285, 286, 319. 125 tr nos. 50, 61, 67, 70, 73, 110, 111, 122, 134, 139, 145, 149, 161, 170, 171, 189, 195, 196, 205, 206, 208, 209, 222, 223, 226, 246, 267, 270, 323. 126 tr nos. 68, 217, 308. 127 tr nos. 152, 153. 110 race, death, and justice vol. 6:2 ix. appendix c: measurement of variables appendix table c. variables and measurement variable description measurement outcomes death notice filed death notice filed by prosecutors coded: 1=dn filed; 0= nd not filed death penalty imposed by judge/jury sentenced entered as death coded: 1= death; 0= life without parole predictors – case characteristics number of prior convictions total number of prior convictions number (logged) number of alleged aggravators total number of alleged aggravators number number of aggravators found by jury total number of applied aggravators number mitigating circumstances total number of mitigating circumstances number (logged) number of defenses offered total number of defenses number plea plea entered coded: 1=plead guilty; 0= plead not guilty number of victims total number of victims 3 coding categories: 1 victim; 2-4 victims; 5 or more victims; coded as 0/1 victim held hostage if victim was held hostage coded: 1=yes; 0= no sex crime if sex crime also suspected to have occurred coded: 1=yes; 0= no victim law enforcement officer any victim a law enforcement officer coded: 1=yes; 0= no predictors – defendant characteristics defendant race defendant’s race 3 coding categories: white; black; other race each coded as 0/1 predictors – victim characteristics victim race victims’ race 4 coding categories: all victims white; all victims black; all victims other race; victims of multiple races. each coded as 0/1 victim sex victims’ sex 3 coding categories: all victims female; all victims male; victims mixed sexes. each coded as 0/1 victim stranger if defendant knew victim coded: 1=yes; 0=no victim child^ any victim under age 18 coded: 1=yes; 0=no predictors – county characteristic publicity extensive publicity about the trial coded: 1=yes; 0=no densely populated county* population density > 150 people per square mile at year of sentencing coded: 1=yes; 0=no 2016 columbia journal of race and law 111 percent black in county at time of arrest* share of county population that is black at arrest proportion percent black in county at time of sentencing* share of county population that is black at sentencing proportion percent white in county at time of arrest* share of county population that is white at arrest proportion % white in county at time of sentencing* share of county population that is white at sentencing proportion % latino in county at time of arrest* share of county population that is latino at arrest proportion % latino in county at time of sentencing* share of county population that is latino at sentencing proportion % vote republican* percent of county population that voted republican in most proximate presidential election proportion per capita revenue at year of sentencing* per capita revenue of county in real dollars (1981) number (logged) note: all indicators were taken from trial reports unless marked with a symbol. *these data were taken from the united states census bureau. ^these data were taken from both trial reports and newspaper reports of case. +mitigating circumstances were coded by attorneys lila silverstein and neil fox. 112 race, death, and justice vol. 6:2 x. appendix d: modeling prosecutorial filing decisions appendix table d1. descriptive statistics: prosecutorial filing decisions in capital sentencing, december 1981 – may 2014 n min. max mean/ proportion standard deviation missing percent missing death notice filed 298 0 1 .29 .455 0 0% case characteristics number of priors 285 0 68 4.07 6.579 13 4.4% one victim 298 0 1 .65 .479 0 0% two to four victims 298 0 1 .33 .471 0 0% five or more victims 298 0 1 .02 .152 0 0% alleged aggravators 298 1 17 2.19 1.661 0 0% sex crime 298 0 1 .19 .394 0 0% victim police officer 298 0 1 .05 .219 0 0% defendant characteristics black defendant 297 0 1 .19 .394 1 .004% white defendant 297 0 1 .64 .481 1 .004% other race defendant 297 0 1 .17 .375 1 .004% victim characteristics white victim(s) 291 0 1 .75 .436 7 2.3% female victim(s) 298 0 1 .42 .494 0 0% child victim(s) 298 0 1 .17 .374 0 0% victim(s) stranger 294 0 1 .32 .467 4 1.3% county characteristics % black in county at year of arrest 296 .1 7.5 3.29 2.50 2 .01% % county voted republican 298 27.4 69.3 44.88 9.0 0 0% densely populated at year of arrest 298 0 1 .76 .427 0 0% per capita revenue in 1981 real dollars 296 139.79 1395.33 328.63 165.89 2 .01% publicity was a factor 286 0 1 .74 .439 12 4% 2016 columbia journal of race and law 113 appendix table d2. correlation matrix: alleged aggravators and crime characteristics death penalty sought 1 victim 2-4 victims 5 or more victims alleged aggravators sex crime law enforcement officer death penalty sought 1.0000 1 victim -.0671 (.2479) 1.0000 2-4 victims .0690 (.2353) -.9490 (.0000) 1.0000 5 or more victims -.0021 (.9708) -.2103 (.0003) -.1086 (.0612) 1.0000 alleged aggravators .2210 (.0001) -.1325 (.0222) .1490 (.0100) -.0443 (.4461) 1.0000 sex crime .1756 (.0023) .1444 (.0126) -.1225 (.0345) -.0754 (.1941) .2690 (.0000) 1.0000 law enforcement officer .1222 (.0349 ) .0413 (.4776) -.0305 (.6003) -.0357 (.5392) -.0631 (.2775) -.1120 (.0535) 1.0000 114 race, death, and justice vol. 6:2 xi. appendix e: modeling sentencing outcomes in capital sentencing appendix table e1. descriptive statistics: capital sentencing outcomes in death eligible cases, december 1981 – may 2014 n min. max mean/ proportion standard deviation missing percent missing death notice filed and not withdrawn by prosecutors or judge 82 0 1 .43 .498 0 0% case characteristics number of priors 80 0 23 4.24 4.192 2 2.4% one victim 82 0 1 .61 .491 0 0% two to four victims 82 0 1 .37 .485 0 0% five or more victims 82 0 1 .02 .155 0 0% plead guilty 82 0 1 .20 .401 0 0% aggravators found by jury 82 0 12 2.27 1.905 0 0% total mitigating circumstances 82 0 11 2.40 2..119 0 0% number of defenses 82 0 2 .21 .515 0 0% defendant characteristics black defendant 81 0 1 .17 .380 1 1.2% white defendant 81 0 1 .70 .459 1 1.2% other race defendant 81 0 1 .12 .331 1 1.2% victim characteristics any victim held hostage 81 0 1 .33 .474 1 1.2% white victim(s) 80 0 1 .83 .382 2 2.4% female victim(s) 82 0 1 .51 .503 0 0% child victim(s) 82 0 1 .23 .425 0 0% victim(s) stranger 80 0 1 .31 .466 2 2.4% county characteristics % black in county at year of sentencing 82 .2 9.3 3.83 2.679 0 0% % county voted republican 82 27.4 62.4 45.17 8.476 0 0% densely populated at year of sentence 82 00 1 .85 .356 0 0% per capita revenue in 1981 real dollars 82 174.93 769.03 306.78 135.79 0 0% articles enforcing civil rights obligations through the false claims act stephen f. hayes * in august 2009, westchester county, new york entered into a consent decree to settle a lawsuit brought against it pursuant to the federal false claims act. serving as a qui tam relator on behalf of the united states government, a non-profit alleged that westchester had falsely certified that it had complied with its obligations to affirmatively further fair housing in order to receive over $50 million in federal housing funds. according to the relators, westchester had failed to undertake basic fair housing requirements such as considering race-based impediments to housing choice. the litigation was the first to employ the fca as a method to enforce a locality‟s obligation to affirmatively further fair housing and thus represents an innovative model for litigation aimed at reforming major social institutions. this article situates the westchester case in ongoing debates about the legitimacy and efficacy of institutional reform litigation and concludes that the publicprivate partnership model offered by the fca addresses some common criticisms of litigation as a method of institutional change. i. introduction ................................................................................ 30 ii. the false claims act and federal housing grants ...... 31 a. the qui tam provision of the false claims act ............. 31 1. a brief history and renewed interest ........................ 31 2. elements of a qui tam case ........................................ 33 b. affirmatively furthering fair housing .............................. 36 1. statutory and regulatory background ......................... 36 2. the problem of weak enforcement ........................... 38 iii. a case study: united states ex rel. anti discrimination center v. westchester ............................... 40 * j.d., may 2010, columbia law school. thanks to gillian metzger, olati johnson, diane houk, justin steil, and devi rao for comments and suggestions. thanks to priscilla orta-wenner and sheila adams for their wonderful editorial assistance 2011 columbia journal of race and law 30 a. the litigation ......................................................................... 40 b. subsequent events ................................................................ 42 iv. institutional reform litigation .......................................... 44 a. the early promise and doctrinal limits ........................... 45 b. the case for institutional reform litigation .................... 46 c. criticisms of institutional reform litigation .................... 48 v. testing the westchester model ........................................... 50 a. is the fca model responsive to institutional reform critiques? .................................................................. 50 1. fca violation as contractual breach ......................... 50 2. consent decrees and injunctive relief ....................... 54 3. infringing on executive prerogatives .......................... 56 b. will the fca model sufficiently protect civil rights? ..................................................................................... 58 vi. conclusion ..................................................................................... 60 i. introduction litigation aimed at reforming social institutions has changed substantially since the supreme court first ordered district courts to oversee school desegregation.1 scholars have questioned the efficacy and legitimacy of litigation as a method of social change, and courts have fashioned doctrines limiting the availability of the sorts of injunctive relief ordered in brown v. board of education and its progeny. as a result, modern courts are less likely to design and enforce sweeping equitable relief compelling action from institutions like housing authorities, school boards, or prisons. these changes do not mean, however, that plaintiffs no longer seek structural reform through litigation. rather, advocates have responded by adjusting the forms of these suits, including pursuing innovative causes of action and seeking narrowly-tailored remedies.2 this article discusses a recent lawsuit against westchester county, new york as an example of an inventive method of initiating institutional reform. a private party, on behalf of the government, brought suit under the qui tam provision of the false 1  see brown v. bd. of educ., 349 u.s. 294 (1955). 2  for more detailed discussions of how advocates have tailored these lawsuits, see, e.g., john c. jeffries, jr. & george a. rutherglen, structural reform revisited, 95 calif. l. rev. 1387, 1411 (2007) (discussing recent qualitative changes in the nature of institutional reform lawsuits); susan p. sturm, the legacy and future of corrections litigation, 142 u. pa. l. rev. 639, 721 (1993) (noting procedural innovations in corrections reform litigation). 31 enforcing civil rights obligations through the false claims act vol. 1:1 claims act (fca),3 challenging westchester‘s failure to honor its agreement that it would further civil rights conditions in exchange for federal housing funds. situating this case study within debates about expansive judicial relief, this article argues that the publicprivate partnership model of qui tam provisions is responsive to critiques of institutional reform litigation. this discussion is especially relevant in light of the fact that congress recently targeted the fca as a method of monitoring federal spending—the federal ―bailout‖ and the healthcare reform act both amended the fca to facilitate qui tam lawsuits.4 part two discusses both the qui tam provision of the fca and the civil rights requirement to further fair housing, with which westchester agreed to comply as a condition of receiving federal housing grants.5 this part also identifies the lack of enforcement of housing laws as a contributing factor to continuing racial segregation. part three discusses how the private litigant in the westchester case utilized the qui tam provision of the fca to remedy the county‘s civil rights violations. part four outlines the principal arguments that have been advanced for and against institutional reform litigation. finally, part five situates the westchester case study in these debates and argues that the qui tam model is responsive to some of the more prominent critiques. ii. the false claims act and federal housing grants a. the qui tam provision of the false claims act 1. a brief history and renewed interest qui tam provisions allow a private party to bring a civil action in the name of the government. the person who pursues the action—the relator—receives a portion of any amount recovered on the government‘s behalf. although variants of these provisions date back to thirteenth century england,6 and early american congresses 3  31 u.s.c.a. §§ 3729-3733 (west 2010). 4  fraud enforcement and recovery act of 2009, pub. l. no. 111-21, 123 stat. 1617 (amending false claims act, 31 u.s.c. §§ 3729-3733); patient protection and affordable care act (ppaca), pub. l. no. 111-148, 124 stat. 119, at § 10104(j)(2) (2010). 5  42 u.s.c. § 5304(b)(2) (2006). 6  see kary klismet, quo vadis, “qui tam?” the future of private false claims act suits against states after vermont agency of natural resources v. 2011 columbia journal of race and law 32 enacted several qui tam statutes,7 the qui tam provision of the fca has generated the most contemporary litigation.8 congress enacted the fca during the civil war to curb frauds perpetrated by war profiteers against the union army.9 the fca was designed as a whistleblower statute to encourage private parties to alert the government when a federal contractor was providing shoddy arms, such as artillery shells filled with sawdust.10 as enacted, the fca broadly applied to any person or entity that submitted a false claim for payment involving the use of federal revenue.11 over the next several decades, abuses by relators led to judicial limitations, ultimately resulting in restrictive amendments in 1946 that effectively precluded any viable use of the act for the next forty years.12 following public exposure of excessive prices paid by the department of defense to contractors, congress amended the fca in 1986 to make it significantly easier and financially more attractive for private relators to bring claims under the qui tam provision.13 unsurprisingly, qui tam actions increased dramatically: only thirtytwo qui tam suits were filed in 1987, and they resulted in no recoveries. since 1986, however, the federal government has recovered more than $22 billion from qui tam actions, including a united states ex rel. stevens, 87 iowa l. rev. 283, 287-88 (2001) (describing history of qui tam actions). 7  see j. randy beck, the false claims act and the english eradication of qui tam legislation, 78 n.c. l. rev. 539, 553 (2000) (listing early qui tam provisions). 8  id. at 555 (noting substantial amount of litigation in the past twenty years driven by the false claims act). 9  id. (describing history of enactment). 10  id. 11  see sean hamer, lincoln‟s law: constitutional and policy issues posed by the qui tam provisions of the false claims act, 6 kan. j.l. & pub. pol‘y 89, 90 (1997). 12  see beck, supra note 7, at 561. this article provides only a brief sketch of the fca here because other authors have detailed the fascinating history of the act in other pieces. for more thorough discussions of the fca, see id. at 555-61 (providing a detailed discussion of the history of the fca); claire m. sylvia, the false claims act: fraud against the government § 2:3 (2010) (providing overview of history of the qui tam provision of the fca and collecting sources); see also vt. agency natural res. v. united states ex rel. stevens, 529 u.s. 765, 774-77 (2000) (discussing the history of qui tam actions in england and the american colonies). 13  see beck, supra note 7, at 561-62. 33 enforcing civil rights obligations through the false claims act vol. 1:1 total of at least $1 billion per year recovered in eight of the last ten years.14 more recently, two major pieces of legislation have amended the fca to facilitate enforcement of fraud associated with federal expenditures. first, congress enacted the fraud enforcement and recovery act of 2009 (fera) as companion legislation to facilitate enforcement of the emergency economic stabilization act of 2008—the federal ―bailout.‖15 in addition to streamlining several procedural mechanisms to incentivize fca claims, fera abrogated a supreme court decision and a d.c. circuit decision that each read the qui tam provisions narrowly.16 second, as discussed below, the patient protection and affordable care act (ppaca)—the recent health care overhaul—amended the fca in several ways to encourage relator claims.17 in addition to these amendments, several bills that would expand the fca remain in various stages of the legislative process.18 in short, congress has revitalized the fca as a robust tool to combat fraud against the government. 2. elements of a qui tam case to establish liability under the fca, a relator must establish that (1) a false claim or false statement (2) was submitted to the united states for payment (3) with the knowledge that the claim or 14  see christopher c. burris et al., converging events signal a changing landscape in false claims act and whistle-blower litigation and investigations, 56 fed. law. 59, 59-60 (2009). 15  fraud enforcement and recovery act of 2009, pub. l. no. 11121, 123 stat. 1617 (amending false claims act, 31 u.s.c. §§ 3729-3733 (2006)). 16  see id.; see also burris, supra note 14, at 59-62 (describing amendments). the legislation was responsive to allison engine co. inc. v. united states ex rel. sanders, 553 u.s. 662 (2008) (holding fca did not establish liability for false claims made to government contractors and grantees, as opposed to claims made directly to the government), as well as united states ex rel. totten v. bombardier corp., 380 f.3d 488 (d.c. cir. 2004) (requiring that false claim be presented directly to federal government as opposed to a government grantee). according to the senate report, these amendments were aimed at uncovering ―corporate and mortgage frauds that have contributed to the recent economic collapse‖ and protecting the massive outflow of federal funds expended in response to the economic crises. s. rep. no. 111-10, at 1 (2009). 17  patient protection and affordable care act (ppaca), pub. l. no. 111-148, 124 stat. 119, at § 10104(j)(2) (2010). see infra notes 30-33 (discussing amendments). 18  see burris, supra note 14, at 62 (discussing pending legislation). 2011 columbia journal of race and law 34 statement in support of the claim was false or fraudulent.19 the ―knowledge‖ prong does not require specific intent to defraud; a showing that a defendant ―reckless[ly] disregard[ed] the truth or falsity of the information‖ can be sufficient.20 likewise, the term ―claim‖ means simply ―any request or demand, whether under a contract or otherwise, for money or property.‖21 in addition to establishing these underlying elements, a relator must follow several procedural steps to accommodate government involvement in an fca suit. she must serve a copy of the complaint and disclose all material evidence to the government. the complaint is not immediately served on the defendant and remains sealed for at least sixty days.22 the government can elect to either take over the action entirely or decline to participate, in which case the relator can continue with the case.23 if the government pursues the action, the private relator can continue as a party.24 the government has the power to dismiss the suit, but not until the relator has an opportunity for a hearing on the motion.25 regardless of objections from the relator, the government can settle the action as long as the court determines that the settlement is fair.26 finally, upon a showing by the government, the court can limit participation by the private party in various other ways.27 the fca also contains numerous pitfalls for an unwary relator which are designed to limit frivolous suits based on widelyknown information. notably, a relator cannot bring suit based on a ―publicly disclosed‖ fraud.28 specifically, any transaction disclosed in a criminal, civil, or administrative hearing, or from the news media is not actionable.29 until recently, this ―public disclosure bar‖ had been one of the most difficult barriers for relators to overcome. the ppaca, however, lowered this bar considerably: whereas the 19  31 u.s.c.a. § 3729(a)(1) (west 2010) (reaching, inter alia, any person who ―knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval‖ or ―knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim‖). 20  id. § 3729(b)(1)(a) & (b). 21  id. § 3729(b)(2). 22  id. § 3730(b)(2). 23  id. § 3730(b)(4). 24  id. § 3730(c)(1). 25  id. § 3730(c)(2)(a). 26  id. § 3730(c)(2)(b). 27  id. § 3730(c)(2)(c). 28  id. § 3730(e)(4)(a). 29  id. 35 enforcing civil rights obligations through the false claims act vol. 1:1 provision was previously labeled ―jurisdictional,‖ thereby requiring a court to dismiss claims based on publicly disclosed information, the government now has the power to oppose dismissal.30 likewise, the ppaca reversed a recent supreme court decision holding that disclosures in state or local government reports or proceedings barred actions; now only disclosures in federal proceedings qualify as ―publicly disclosed.‖31 finally, even if material has been disclosed publicly, there is an exception for parties that are ―original source[s]‖ of information.32 the ppaca broadened this exception by substituting a requirement that relators have ―direct‖ knowledge of the facts underlying the allegations with language allowing for suits based on ―knowledge that is independent of and materially adds to the publicly disclosed allegations.‖33 presumably, the fca no longer requires that relators have first-hand knowledge of information as long as they acquired information independently of public disclosures. if a relator is successful, damages can be substantial. a person who presents a fraudulent claim to the united states is liable for civil penalties of between $5,500 and $11,000 for each claim, as well as treble the damages sustained by the government.34 the relator can receive anywhere from fifteen to thirty percent of the proceeds of the action or settlement, as well as attorneys‘ fees and costs.35 the client agencies in the vast majority of fca actions have been the department of health and human services (hhs) and the department of defense (dod).36 common actions charge a health 30  robert t. rhoad & matthew t. fornataro, whistling while they work: limiting exposure in the face of the ppaca‟s invitation to employee whistleblower lawsuits, 22 health law. 19 (2010) (describing amendment to fca). 31  see graham cnty. soil & water conservation dist. v. united states ex rel. wilson, 130 s. ct. 1396 (2010) (interpreting the fca as the text stood before ppaca amendments). 32  31 u.s.c.a. § 3730(e)(4)(a) & (b). 33  patient protection and affordable care act (ppaca), pub. l. no. 111-148, 124 stat. 119, at § 10104(j)(2) (2010) (amending the false claims act, 31 u.s.c.a. § 3730). 34  31 u.s.c.a. § 3729(a)(1). the statutory penalties may be adjusted for inflation. see 28 c.f.r. § 85.3 (2010) (raising penalties from range of $5,000 to $10,000 to range of $5,500 to $11,000). 35  31 u.s.c.a. § 3730(d). 36  see civil div., u.s. dep‘t of justice, fraud statistics— overview (oct. 1, 1986 – sept. 30, 2008), available at http://www.justice. gov/opa/pr/2008/november/fraud-statistics1986-2008.htm (during the period of 1986 to 2008, 3,306 new qui tam actions were filed with hhs as http://www.justice.gov/opa/pr/2008/november/fraud-statistics1986-2008.htm http://www.justice.gov/opa/pr/2008/november/fraud-statistics1986-2008.htm 2011 columbia journal of race and law 36 care provider with presenting a claim to medicare for reimbursement of services that were never performed, were not performed adequately, or were performed in violation of an applicable regulatory or statutory provision.37 likewise, fca cases still target military contractors who provide inadequate goods or fail to test properly products sold to the dod.38 these sorts of cases are intuitively fraudulent because a party seeks reimbursement for a service never performed or for faulty goods. the westchester lawsuit addressed a different kind of case: as a condition attached to receiving federal funds, westchester agreed to comply with federal civil rights provisions. the next section discusses the underlying civil rights requirement attached to the housing grants provided to westchester. b. affirmatively furthering fair housing 1. statutory and regulatory background in 1968, congress passed the fair housing act.39 this act contained two provisions directing the federal government ―affirmatively to further fair housing‖ (affh). section 3608(e)(5) requires the secretary of the united states department of housing and urban development (hud) to ―administer the programs and activities relating to housing and urban development in a manner affirmatively to further the purposes of [the fair housing act].‖40 section 3608(d) imposes the obligation to affirmatively further fair housing on other federal departments and agencies.41 likewise, and importantly for the purposes of this article, compliance with affh obligations is a condition for grantees to the client agency, and 1,202 new qui tam actions were filed with the dod as the client agency. all other new qui tam matters combined totaled only 1,691.). 37  see, e.g., united states ex rel. schmidt v. zimmer, inc., 386 f.3d 235 (3d cir. 2004) (finding kick-back scheme perpetrated by medicare participants actionable under fca); mikes v. straus, 274 f.3d 687 (2d cir. 2001) (alleging false reimbursement requests to government for services performed on inaccurately calibrated equipment); united states ex rel. roy v. anthony, 914 f. supp. 1504 (s.d. ohio 1994) (alleging services never performed); see also robin page west, advising the qui tam whistleblower 4 (2001) (listing common types of qui tam actions). 38  see, e.g., united states ex rel. fallon v. accudyne corp., 97 f.3d 937 (7th cir. 1996) (contractor allegedly failed to test equipment properly). 39  42 u.s.c. §§ 3601-31 (2006). 40  id. § 3608(e)(5). 41  id. § 3608(d). 37 enforcing civil rights obligations through the false claims act vol. 1:1 receive community development block grants (cdbgs), which help states and local governments fund housing and community development projects in low-income neighborhoods.42 specifically, a grantee must certify that ―the grant will be conducted and administered in conformity with the civil rights act of 1964 [42 u.s.c.a. § 2000a et seq.] and the fair housing act [42 u.s.c.a. § 3601 et seq.], and the grantee will affirmatively further fair housing.‖43 the meaning of the phrase ―affirmatively to further fair housing‖ is famously ambiguous,44 and for such a seemingly broad mandate, the legislative history accompanying the relevant statutes is surprisingly sparse and uninformative.45 a series of cases in the 1970s read the affh provision as requiring, at a minimum, that hud and grant recipients do more than simply refrain from discriminating, or purposely aiding discrimination by others.46 hud and localities also must create housing opportunities in low-poverty, majority-white neighborhoods in order to promote racial integration.47 the regulations implementing the affh provision in the cdbg program now require grantees to: (1) conduct an analysis to identify impediments to fair housing choice, typically referred to as an ―ai‖; (2) take appropriate actions to overcome any impediments identified; and (3) maintain records reflecting the analysis and actions taken.48 beyond these requirements, hud has created a fair housing planning guide to assist grantees to fulfill the cdbg fair housing requirements.49 finally, representatives from hud have indicated that the agency is revising its federal grant regulations to provide ―more concrete, specific information 42  id. § 5304(b)(2). 43  id. 44  see olatunde c.a. johnson, stimulus and civil rights, 111 colum. l. rev. 154, 194-95 (2011). 45  see florence wagman roisman, affirmatively furthering fair housing in regional housing markets: the baltimore public housing desegregation litigation, 42 wake forest l. rev. 333, 371-72 (2007) (discussing meaning of, and legislative history accompanying, affh provision). 46  for an overview of the most relevant cases, see roisman, supra note 45, at 363-68. 47  see johnson, supra note 44, at 194-95. 48  24 c.f.r. §§ 91.225 & 570.601 (2010). 49  u.s. dep‘t of hous. & urban dev., fair housing planning guide (1996), available at http://www.disasterhousing.gov/offices/fheo/ images/fhpg.pdf. 2011 columbia journal of race and law 38 about how to develop a meaningful plan for affirmatively furthering fair housing.‖50 2. the problem of weak enforcement despite these fair housing laws, communities throughout the united states are still highly segregated by race.51 the causes of community segregation are myriad, but at a minimum exclusionary zoning and other local land use decisions have contributed to segregated neighborhoods.52 policymakers and scholars tend to agree that, although enforcement of housing laws should be a primary tool to combat these problems, enforcement has been weak and inconsistent.53 hud‘s enforcement departments are ―chronically understaffed, under-funded, and marginalized within the hud structure‖ and because the doj has not played a major part in enforcing housing violations, ―federal enforcement has been inconsistent and soft.‖54 specifically with respect to the affh provisions, hud ―has not been successful in bringing the affirmatively furthering 50  written statement of john d. trasviña, hud assistant sec‘y for fair hous. & equal opportunity, before the house subcommittee on hous. & cmty. opportunity (jan. 20, 2010), available at http://www.house. gov/apps/list/hearing/financialsvcs_dem/trasvina_-_hud.pdf. 51  see, e.g., james robert breymaier, the need to prioritize the affirmative furthering of fair housing: a case statement, 57 clev. st. l. rev. 245, 246 (2009). the american communities project offers an impressive collection of statistics on segregation. see american communities project, u.s. census bureau, metropolitan racial and ethnic change— census 2000, available at http://mumford1.dyndns.org/cen2000/data.html. 52  nat‘l comm‘n on fair hous. & equal opportunity, the future of fair housing 10 (dec. 2008), available at http://www. civilrights.org/publications/reports/fairhousing/future_of_fair_housing_re port.pdf. likewise, private actions such as real estate broker ―steering,‖ and discrimination in loan products continue to exist. id. 53  see id. at 13-18 (noting weak enforcement by hud, and discussing delayed investigations, missed opportunities for systemic investigations, and inconsistencies between hud and regional offices); steven plitt & daniel maldonado, prohibiting de facto insurance redlining: will hurricane katrina draw a discriminatory redline in the gulf coast sands prohibiting access to home ownership?, 14 wash. & lee j. civil rts. & soc. just. 199, 211-13 (2008) (discussing weak enforcement mechanisms provided to hud); florence wagman roisman, mandates unsatisfied: the low income housing tax credit program and the civil rights laws, 52 u. miami l. rev. 1011, 1037-38 (1998) (noting that hud enforcement has been weak). 54  breymaier, supra note 51, at 247. http://www.house.gov/apps/list/hearing/financialsvcs_dem/trasvina_-_hud.pdf http://www.house.gov/apps/list/hearing/financialsvcs_dem/trasvina_-_hud.pdf http://mumford1.dyndns.org/cen2000/data.html 39 enforcing civil rights obligations through the false claims act vol. 1:1 obligation to life.‖55 according to a recent commission co-chaired by two former hud secretaries, hud has ―failed to adequately monitor or enforce [affh rules] among federal grantees.‖56 specifically, even though grantees must certify that they are affirmatively furthering fair housing, ―hud requires no evidence that anything is actually being done as a condition of funding and it does not take adverse action if jurisdictions are directly involved in discriminatory action or fail to affirmatively further fair housing.‖57 as a result, ―less than 10 percent of the approximately 1,100 cdbg entitlement jurisdictions in the country actually have programs that really address fair housing concerns in their communities.‖58 accordingly, despite the success of some celebrated cases,59 hud and cdbg grantees consistently fail to satisfy their statutory mandates to affirmatively further fair housing.60 the next part discusses an innovative approach taken by a private advocacy group to fill this enforcement gap using the fca.61 55  nat‘l comm‘n on fair hous. & equal opportunity, supra note 52, at 37. 56  id. at 38. 57  id. at 44. 58  id. at 45. 59  see hills v. gautreaux, 425 u.s. 284 (1976); naacp, boston chapter v. sec‘y of hud, 817 f.2d 149, 154 (1st cir. 1987); otero v. n.y. city hous. auth., 484 f.2d 1122 (2d cir. 1973); shannon v. hud, 436 f.2d 809 (3d cir. 1970); thompson v. hud, 348 f. supp. 2d 398 (d. md. 2005). 60  in september 2010, the government accountability office issued a report detailing an investigation of compliance by state and local governments with their obligations to affh. the report estimated that twenty-nine percent of all ais are outdated, and that ―the vast majority also lack time frames for implementing identified recommendations or the signatures of top elected officials, both of which are necessary to establish clear accountability to carrying out the affh intent.‖ u.s. gov‘t accountability office, housing and community grants: hud needs to enhance its requirements and oversight of jurisdictions‘ fair housing plans 31 (sept. 2010), available at http:// www.gao.gov/new.items/d10905.pdf. 61  for a discussion of the possibility of enforcing affh provisions through private rights of action, see michelle ghaznavi collins, note, opening doors to fair housing: enforcing the affirmatively further provision of the fair housing act through 42 u.s.c. § 1983, 110 colum. l. rev. 2135 (2010). http://www.gao.gov/new.items/d10905.pdf http://www.gao.gov/new.items/d10905.pdf 2011 columbia journal of race and law 40 iii. a case study: united states ex rel. antidiscrimination center v. westchester a. the litigation in 2006, a nonprofit called the anti-discrimination center of metro new york, inc. (adc) brought suit as an fca qui tam relator for the united states of america against westchester county, new york (―westchester‖ or ―the county‖).62 westchester is comprised of forty-five municipal entities outside of new york city.63 over the course of six years, the county applied to hud for federal funding, including cdbgs.64 in order to receive these funds, westchester certified to hud that the county, and the associated municipal entities, would ―affirmatively further fair housing.‖65 westchester is racially segregated, and during the litigation, an expert for westchester ―acknowledge[d] the existence of racial ‗concentration‘ in parts of the county.‖66 as noted above, the statutory and regulatory framework detailing the certification process required westchester to ―analyze the impact of race on housing opportunities and choice in its jurisdiction.‖67  despite these requirements, the county did not deem itself or any of its municipalities to be failing to affh, and it did not withhold any funds from participating municipalities for failing to affh.68 with this background in mind, adc‘s claims as a relator under the fca were fairly obvious: westchester knowingly made false certifications that it would affh.69 adc supported these claims by pointing to documents responsive to new york‘s freedom of information law, as well as to acknowledgments that 62  united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester cnty., n.y., 668 f. supp. 2d 548, 550 (s.d.n.y. 2009). 63  land use and development, westchester cnty., n.y., http:// planning.westchestergov.com/index.php?option=com_content&view=articl e&id=834&itemid=1461 (last visited september 25, 2010). 64  united states ex rel. anti-discrimination ctr. of metro n.y., inc., 668 f. supp. 2d at 551. 65  id. (quoting 42 u.s.c. § 5304(b)(2) (2006)). 66  id. at 559 (―according to the 2000 census, over half of the municipalities in the consortium had african-american populations of 3% or less.‖). 67  id. at 552. 68  id. at 559. 69  united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester cnty., n.y., 495 f. supp. 2d 375, 377 (s.d.n.y. 2007). http://planning.westchestergov.com/index.php?option=com_content&view=article&id=834&itemid=1461 http://planning.westchestergov.com/index.php?option=com_content&view=article&id=834&itemid=1461 http://planning.westchestergov.com/index.php?option=com_content&view=article&id=834&itemid=1461 41 enforcing civil rights obligations through the false claims act vol. 1:1 county employees made to adc that their ―demographic analysis for the purpose of identifying impediments to fair housing did not encompass race, but only examined housing needs based on income.‖70 therefore, the county refused to identify or analyze community resistance to integration based on race as was required by a proper report under the cdbg statutory and regulatory framework.71 the government initially declined to take over the action, and adc served its complaint on westchester.72 in 2007, the district court made its first major decision in the case.73 after consideration of the statutory and regulatory framework, in combination with hud‘s fair housing planning guide, the court rejected westchester‘s argument that it had no duty to consider race or racial discrimination when identifying impediments to fair housing choice.74 two years later, after the parties completed discovery, the court turned to the remaining issues on cross-motions for summary judgment.75 as noted above, liability requires a plaintiff to show (1) a false claim or false statement (2) was submitted to the united states for payment (3) with the knowledge that the claim or statement in support of the claim was false or fraudulent. as to the falsity prong, the court recognized that federal law required westchester to analyze whether race impeded fair housing and to make a record of that analysis.76 the certifications were false because the county did neither.77 the knowledge element was a closer case. on the one hand, the county was aware of the hud planning guide and other training materials, and internal county memoranda indicated that westchester employees were informed that the affh obligations required them to analyze race.78 however, the court declined to grant summary judgment in favor of adc because the county voluntarily submitted to hud more information about its housing analysis than required by hud regulations—an odd act if the county knew them to be false—permitting the inference that it did not act with 70  id. 71  id. at 378. that framework is discussed supra notes 39-43 and accompanying text. 72  id. 73  id. at 375. 74  id. at 387. 75  united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester cnty., n.y., 668 f. supp. 2d 548, 560 (s.d.n.y. 2009). 76  id. at 560-65. 77  id. 78  id. at 567-68. 2011 columbia journal of race and law 42 the knowledge that the claim or statement in support of the claim was false or fraudulent.79 despite this final point, the court‘s order was a major win for adc: the court granted summary judgment in favor of adc on almost every major issue, and adc could proceed to trial on the remaining knowledge element. this victory caught the attention of the federal government. on august 10, 2009, the united states simultaneously intervened in the fca action80 and filed a settlement with westchester.81 the county agreed to spend $51.6 million to develop affordable housing, with at least eighty-four percent of total units built in municipalities where african american residents constituted three percent or less of the population and hispanic residents made up less than seven percent.82 moreover, the county agreed to take action against resistant municipalities where needed in order to fulfill affh obligations.83 the government selected a court appointed monitor to observe and analyze the county‘s progress.84 finally, adc received $2.5 million as expenses, attorneys‘ fees, and costs.85 b. subsequent events the settlement immediately sparked controversy. the new york times covered the resolution favorably, labeling it a ―landmark desegregation agreement.‖86 the deputy secretary of hud, ron sims, identified the settlement as ―consistent with the president‘s desire to see a fully integrated society . . . . until now, we tended to lay dormant. this is historic, because we are going to hold people‘s feet to the fire.‖87 in contrast, an editorial in the wall street journal lamented that ―social engineers [who] want to force the issue [of 79  id. 80  complaint-in-intervention of the united states of america, united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester cnty., n.y., no. 06 civ. 2860 (s.d.n.y. aug. 10, 2009). 81 stipulation and order of settlement and dismissal, united states ex rel. anti-discrimination ctr. of metro n.y. inc. v. westchester cnty., no. 06 civ. 2860 (s.d.n.y. aug. 10, 2009). 82  id. at 6-11. 83  id. at 19-27. 84  id. at 11-19. 85  id. at 5. 86  sam roberts, westchester adds housing to desegregation pact, n.y. times, aug. 10, 2009, at n.y./region. 87  peter applebome, integration faces a new test in the suburbs, n.y. times, aug. 22, 2009, at week in review. 43 enforcing civil rights obligations through the false claims act vol. 1:1 housing integration] risk creating more problems than they solve.‖88 in a separate piece, the wall street journal speculated that the settlement ―could have ramifications far beyond‖ westchester because ―some 1,225 cities, counties, and state governments have accepted [cdbgs] since the program began 35 years ago.‖89 the westchester county board of legislators approved the settlement in late september.90 whether the county will adequately implement the settlement remains to be seen. in a letter to the editor of the yonkers tribune a few days after the settlement announcement, a candidate for westchester county executive named rob astorino argued that the real issue in the settlement was ―home rule, the right of westchester towns and villages to determine local policy.‖91 rob astorino was elected westchester county executive three months later,92 suggesting public support for political resistance to implementation efforts. since the agreement, however, the appointed monitor has played a major role in facilitating creation of an implementation plan (ip) and mediating between the county, hud, and adc. the monitor met with the county executive and other county officials, as well as with the general counsel and assistant secretaries of hud.93 the monitor also selected a housing advisor approved by hud and the county to work as an expert in the implementation 88  review & outlook, color-coding the suburbs: the social engineers come to scarsdale, wall st. j., aug. 14, 2009, at review & outlook. 89  nick timiraos, westchester settlement: „removing zip code as quality of life factor,‟ wall st. j. blogs (aug. 11, 2009 12:59 pm), http://blogs.wsj. com/developments/2009/08/11/westchester-settlement-removing-zipcode-as-quality-of-life-factor/?keywords=westchester+county+settlement. 90  joshua brustein, westchester board approves a housing-integration pact, n.y. times, sept. 22, 2009, at n.y./region. 91  rob astorino, letter to the editor, big brother about to descend on westchester, yonkers tribune, aug. 12, 2009. 92  meet the county executive, westchester cnty., n.y., http:// www3.westchestergov.com/index.php?option=com_content&view=article &id=2561&itemid=300260 (last visited dec. 1, 2010) (―westchester county executive rob astorino was elected in november 2009 after running a successful campaign to streamline county government and bring tax relief to homeowners and businesses. his message resonated with voters across westchester as he was elected with 58 percent of the vote.‖). 93  amended monitor‘s report regarding implementation of the stipulation and order of settlement and dismissal for the period of august 10, 2009 through february 10, 2010, at 3, united states ex rel. antidiscrimination ctr. of metro n.y., inc. v. westchester cnty., n.y., no. 06 civ. 2860 (s.d.n.y. feb. 11, 2010) [hereinafter amended monitor‘s report], available at http://www.antibiaslaw.com/sites/default/files/files/ 0328-1.pdf. http://www3.westchestergov.com/index.php?option=com_content&view=article&id=2561&itemid=300260 http://www3.westchestergov.com/index.php?option=com_content&view=article&id=2561&itemid=300260 http://www3.westchestergov.com/index.php?option=com_content&view=article&id=2561&itemid=300260 2011 columbia journal of race and law 44 and sought funding to work with environmental and local land use experts from the furman center for real estate and urban policy at new york university.94 the county submitted its first ip in january of 2010. after receiving comments from the adc and hud, however, the monitor rejected the plan because it lacked ―any concrete short-, mediumor long-term strategies‖ for implementation, and it was ―not transparent as to who within county government [would] be responsible for the various tasks‖ necessary to implement the plan.95 on march 16, 2010, hud issued a press release stating a newer revised ip was still deficient: ―we have seen two versions of the implementation plan and, while the county has worked to improve it, there is still work to be done to set a clear strategy for promoting diverse, inclusive communities.‖96 on july 7, 2010, the monitor rejected the second ip, citing many of the same problems apparent in the first proposal.97 on august 9, 2010, westchester submitted a third iteration of the ip.98 as of october 2010, the monitor had not addressed the adequacy of the latest revised plan. in short, despite cooperation between the monitor, adc, and hud, the extent to which westchester will comply with its affh obligations remains to be seen. iv. institutional reform litigation the westchester case was the first use of the fca to enforce a local government‘s obligation to affirmatively further fair housing, and therefore it represents an innovative model to remedy 94  id. at 3-4. 95  id. at 6-10; see also amended monitor‘s report, supra note 93, at 6, 7 (discussing deficiencies with implementation plan). 96  press release, u.s. dep‘t of hous. & urban dev., hud statement on the revised implementation plan of westchester county, new york (mar. 16, 2010), available at http://portal.hud.gov/portal/page/ portal/hud/press/press_releases_media_advisories/2010/hudno.10051. 97  monitor‘s report regarding implementation of the stipulation and order of settlement and dismissal for the period of february 11, 2010 through july 6, 2010, united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester cnty, n.y., no. 06 civ. 2860 (s.d.n.y. july 7, 2010), available at http://www.antibiaslaw.com/sites/default/files/files/ monitor_july_report.pdf. 98  westchester county, westchester county fair and affordable housing implementation plan (aug. 9, 2010), available at http://www.antibiaslaw.com/sites/default/files/files/implementation_plan _2010_08_09.pdf. http://portal.hud.gov/portal/page/portal/hud/press/press_releases_media_advisories/2010/hudno.10-051 http://portal.hud.gov/portal/page/portal/hud/press/press_releases_media_advisories/2010/hudno.10-051 http://portal.hud.gov/portal/page/portal/hud/press/press_releases_media_advisories/2010/hudno.10-051 45 enforcing civil rights obligations through the false claims act vol. 1:1 the civil rights violations of a major local institution.99 this part situates the westchester litigation in ongoing academic debates about the current state of institutional reform litigation. a. the early promise and doctrinal limits institutional reform litigation loosely refers to lawsuits where parties seek to significantly restructure public institutions. following brown v. board of education, plaintiffs brought a wave of actions challenging systematic constitutional violations by school boards, prisons, mental hospitals, and housing authorities.100 courts responded by devising elaborate and detailed injunctive remedies.101 in 1976, abram chayes famously provided an analytic description of this new form of litigation.102 chayes argued that these lawsuits exhibited characteristics that differed from the ―defining features‖ of traditional civil adjudication.103 what chayes called ―public law litigation‖ involved many parties rather than merely being a ―contest between two individuals,‖ the remedies sought prospective rather than retrospective remedies, and judges, 99  the westchester case is innovative but not unique. in one earlier case, a district court granted summary judgment in favor of the government based on similar fca claims alleging a locality ignored conditional spending requirements attached to housing grants. see united states v. inc. vill. of island park, 888 f. supp. 419 (e.d.n.y. 1995). it is not clear why the government‘s success in this case did not inspire more of these claims. perhaps private parties did not view island park as a viable institutional reform model because the government, rather than a private relator, initially filed and directed the entire fca action. relators have brought other fca actions enforcing smaller-scale civil rights violations, generally in combination with employment retaliation claims against private defendants. see, e.g., united states ex rel. burlbaw v. orenduff, 548 f.3d 931 (10th cir. 2008) (rejecting fca action based on claim that university falsely certified it was ―minority institution‖ eligible for dod grants); green v. city of st. louis, mo., 507 f.3d 662 (8th cir. 2007) (rejecting claim based on improper certification of minority business); coleman v. hernandez, 490 f. supp. 2d 278 (d. conn. 2007) (upholding qui tam action against landlord for improperly charging tenant additional expenses above what hud program allowed). 100  scholars often mark brown v. board of education, 349 u.s. 294 (1955), as the first modern institutional reform case. see, e.g., jeffries & rutherglen, supra note 2, at 1408; david zaring, national rulemaking through trial courts: the big case and institutional reform, 51 ucla l. rev. 1015, 1018 (2004); ross sandler & david schoenbrod, democracy by decree 25 (2003) [hereinafter sandler & schoenbrod, democracy]. 101  jeffries & rutherglen, supra note 2, at 1409. 102  abram chayes, the role of the judge in public law litigation, 89 harv. l. rev. 1281 (1976). 103  id. at 1282-83. 2011 columbia journal of race and law 46 rather than parties, became the dominant organizing and guiding figures.104 although chayes ultimately approved of this new judicial role, he warned this style of litigation raised serious legitimacy concerns.105 following criticism of the legitimacy and efficacy of these lawsuits, the supreme court began to curb institutional reform litigation. cases such as milliken v. bradley,106 in which interdistrict busing was rejected as a remedial measure, signaled that the court was beginning to disfavor expansive court remedies.107 likewise, in cases like city of los angeles v. lyons,108 the court fashioned a doctrine of standing limiting the availability of injunctive relief.109 as discussed below, despite these doctrinal changes institutional reform litigation continues to exist, albeit in varying forms.110 b. the case for institutional reform litigation a common theme underlies most arguments advanced in favor of institutional reform litigation: courts can be effective reformers of social institutions because they are uniquely situated to act where elected bodies are ―politically unwilling or structurally unable to proceed.‖111 because they are removed from electoral pressures, courts can defend unpopular causes and remedy violations of rights.112 politically and economically weak groups are systematically excluded from the political process, whereas influence 104  id. at 1283. 105  id. at 1313-16. 106  418 u.s. 717 (1974). 107  jeffries & rutherglen, supra note 2, at 1409 (citing milliken, 418 u.s. at 744). 108  461 u.s. 95 (1983). 109  jeffries & rutherglen, supra note 2, at 1410 (citing generally lyons, 461 u.s. 95). for more discussion of doctrines limiting the ability of advocates to bring structural reform suits and of advocates responses to those limitations, see, e.g., brandon l. garrett, structural reform prosecution, 93 va. l. rev. 853, 869-74 (2007) (addressing challenges to institutional reform and transformation of suits); myriam gilles, an autopsy of the structural reform injunction, 58 u. miami l. rev. 143, 163-68 (2003) (discussing procedural barriers to liberal structural reform suits); john valery white, foreword: is civil rights law dead?, 63 la. l. rev. 609 (2003) (addressing generally the current state of civil rights law). 110  charles f. sabel & william h. simon, destabilization rights: how public law litigation succeeds, 117 harv. l. rev. 1015, 1018-19 (2004) (―there is no indication of a reduction in the volume or importance of chayesian judicial activity.‖). 111  gerald n. rosenberg, the hollow hope 22 (2d ed. 2008). 112  id. 47 enforcing civil rights obligations through the false claims act vol. 1:1 in the judiciary (ideally) depends only on the strength of argument.113 finally, courts are catalysts for change, ―indicat[ing] publicly that the status quo is illegitimate and cannot continue.‖114 supporters of institutional reform litigation also argue that critics overstate the constrained nature of courts. the judicial process can be an effective forum for gathering and assessing information.115 the adversarial process—combined with procedural mechanisms like discovery—facilitates informed decision-making. courts also have developed mechanisms to help them monitor and enforce orders: special masters can gather information and draft remedial decrees, and monitoring commissions allow courts to follow the implementation process.116 finally, a school of ―experimentalist‖ scholars contend that institutional reform litigation has changed significantly from the broad structural injunctions that marked early civil rights cases.117 these scholars argue that recent cases are more focused, and consent decrees commonly identify ―goals defendants are expected to achieve and specify standards and procedures for measurement of performance.‖118 the notion of a judge single-handedly making complicated policy determinations is also inaccurate. contemporary institutional reform litigation is rarely resolved through ―command and control‖ mechanisms dictated by a judge but instead centers around a negotiated process involving multiple stakeholders.119 under this view, judges are not faced with creating complicated remedies themselves. rather, the role of the court is to structure an environment for affected actors to ―collaboratively derive standards, procedures for revising them, and mechanisms of accountability for those subject to them.‖120 as discussed below, some scholars 113  id. at 23-24. 114  sabel & simon, supra note 110, at 1056. 115  rosenberg, supra note 111, at 24. 116  id. at 26-27. 117  for an introduction to the experimentalist model of judicial intervention, see sabel & simon, supra note 110, at 1056; see also olatunde c.a. johnson, disparity rules, 107 colum. l. rev. 374, 416 n.185 (2007) (collecting literature on experimentalist regimes); william s. koski, the evolving role of the courts in school reform twenty years after rose, 98 ky. l.j. 789, 806 (2010) (providing an overview of experimentalist school reform model). 118  jeffries & rutherglen, supra note 2, at 1411. 119  sabel & simon, supra note 110, at 1018-19; zaring, supra note 100, at 1022-37 (contrasting unilateralist model with multilateralist model of institutional reform litigation). 120  sabel & simon, supra note 110, at 1089. 2011 columbia journal of race and law 48 question the accuracy and efficacy of this experimentalist model,121 but at a minimum the forms of these lawsuits have evolved significantly since the early days of institutional reform litigation. c. criticisms of institutional reform litigation a simple narrative highlights common criticisms of institutional reform litigation: courts generally will not be effective producers of significant social reform because judicial institutions are ill-suited to develop and implement remedies sufficient to vindicate the underlying rights.122 a common critique lodged against institutional reform litigation is that it seeks to effectuate lofty, and often poorly defined, rights. these rights have traditionally been constitutional—a difficult strategy because many social reform goals are not easily framed as constitutional violations.123 relatedly, courts are limited in their ability, or willingness, to recognize novel extensions of existing rights.124 when courts do grasp the nettle, they articulate aspirational goals—for instance, dismantling segregated schools ―root and branch.‖125 professors ross sandler and david schoenbrod term these lofty goals ―soft rights‖: unlike traditional rights, which courts enforce to the hilt, these rights are enforced ―only to the extent [the parties or the judge] thinks it makes sense to do so in view of society‘s competing priorities‖126  nor is this problem resolved by the fact that most contemporary cases focus on statutory and regulatory violations rather than constitutional ones.127 critics argue that the rights and obligations expressed in statutes like the clean air act (caa) and the americans with disabilities act 121  see discussion infra for text accompanying notes 173-174. 122  rosenberg, supra note 111, at 10. 123  id. at 11. 124  id. 125  green v. cnty. sch. bd. of new kent cnty., 391 u.s. 430, 438 (1968); see also sandler & schoenbrod, democracy, supra note 100, at 102 (describing phenomenon). 126  sandler & schoenbrod, democracy, supra note 100, at 103; ross sandler & david schoenbrod, the supreme court, democracy and institutional reform litigation, 49 n.y.l. sch. l. rev. 915, 933 (2004-2005) [hereinafter sandler & schoenbrod, supreme court] (providing example of congressional command that local governments achieve adoption for foster care children within fifteen months). 127  sandler & schoenbrod, supreme court, supra note 126, at 926. 49 enforcing civil rights obligations through the false claims act vol. 1:1 (ada) are no less aspirational than the constitutional violations litigated in the past.128 skeptics also make the point that courts are constrained in their ability to develop and enforce complicated injunctive relief and consent orders to remedy these rights. courts are well-equipped to decide traditional tort or contract actions because these suits require a limited intervention. public law liability, on the other hand, involves technical policy determinations with long-term impacts, and courts lack the expertise and specialization to adequately formulate these polices.129 as judge frank m. johnson stated, ―[j]udges are trained in the law. they are not penologists, psychiatrists, public administrators, or educators.‖130 institutional reform supporters respond that judges are not required to develop policy in a vacuum. resolution of cases often happens through consent decrees, where litigants, experts, and monitors engage in a form of ―supervised political bargaining.‖131 sandler and schoenbrod, however, argue that these ―controlling groups‖ of lawyers create more problems than they solve.132 first, plaintiffs‘ attorneys may advance their vision of the public interest at the expense of their clients.133 second, because they are generally not named parties and have few incentives to get involved, the federal agencies designated to manage many of the programs at issue rarely play major roles in the litigation.134 finally, institutional reform litigation subverts democratic principles by redirecting power from elected political bodies to the courts or a controlling group of lawyers.135 in short, critics maintain that institutional reform 128  sandler & schoenbrod, democracy, supra note 100, at 10309 (arguing state obligation to make public programs and facilities accessible is an aspirational goal). 129  rosenberg, supra note 111, at 16; sabel & simon, supra note 110, at 1017 (articulating criticisms). 130  frank m. johnson, jr., the role of the federal courts in institutional litigation, 32 ala. l. rev. 271, 274 (1981). 131  jeffries & rutherglen, supra note 2, at 1409. 132  sandler & schoenbrod, democracy, supra note 100, at 11819. 133  id. at 124-25. 134  id. at 135-38 (arguing plaintiffs, defendants, and federal officials are generally happy when federal agencies are not involved). 135  sabel & simon, supra note 110, at 1090 (articulating the argument regarding subverting control from the democratic process to the courts); sandler & schoenbrod, supreme court, supra note 126, at 916 (articulating the argument with respect to a ―controlling group‖ of lawyers). 2011 columbia journal of race and law 50 litigation represents an unwarranted and ineffective cooption of policymaking from political representatives to courts and lawyers.136 v. testing the westchester model fca actions are responsive to many of the criticisms leveled at institutional reform litigation. as discussed below, the form of an fca suit resembles a breach of contract action, something courts are well-suited to adjudicate. it is true that violations of federal spending conditions are more complicated than ordinary contractual breaches because the congressional spending power implicates accountability and federalism concerns. but fca actions should not run afoul of the supreme court‘s directive that spending conditions be unambiguous. therefore, the fact that defendants buy into obligations underlying fca suits by accepting federal grants mitigates accountability and federalism concerns associated with traditional institutional reform suits. moreover, federal agencies are likely to become involved in fca suits, thereby addressing doubts that private parties and courts lack the expertise to effectively remedy violations. although fca suits might infringe on executive prerogatives, certain procedural mechanisms in qui tam actions mediate these worries as well. this part concludes with some thoughts on the potential of fca suits to effectively reform social institutions. on the one hand, civil rights advocates surrender power over crafting remedies in an fca suit, and scholars dispute the efficacy of the experimentalist model of institutional reform. but features of fca suits, such as agency expertise and the possibility for federal funding of settlement implementation, suggest these lawsuits have the potential to be effective nonetheless. a. is the fca model responsive to institutional reform critiques? 1. fca violation as contractual breach a primary criticism of institutional reform litigation posits that efforts to enforce aspirational ―soft rights‖ are misguided. for instance, sander & schoenbrod contend that courts really cannot be expected to ensure air would be ―made fully healthy‖ by the end of 136  empirical evidence exists supporting both views of the effectiveness of institutional reform litigation. see rosenberg, supra note 111, at 27-36 (discussing empirical studies). 51 enforcing civil rights obligations through the false claims act vol. 1:1 the 1970s, as the caa required.137 rather, when faced with violations of aspirational rights, courts must decide ―how far . . . [to] push government to pursue a soft right, and that decision will necessarily balance the soft right against government‘s competing priorities.‖138 because this judicial balancing is policy-laden, it implicates federalism and accountability concerns. an aspirational federal statute allows congress to take credit for addressing a complex problem, while hoisting implementation costs on local actors. moreover, the least democratic branch is charged with delineating the contours of the broad right. the hybrid nature of an fca action responds to this criticism. first, localities buy into requirements by accepting federal grants, thereby mediating congress‘s ability to pass on obligations to unwilling local actors. second, an fca relator does not ask a court to remedy a violation of an underlying civil right. rather, the relator‘s claim more closely resembles a traditional contract action than an institutional reform suit. the relator identifies an agreement for federal funds between a locality and the federal government and points out a knowing violation of that agreement. the narrative presented in the previous paragraph, however, oversimplifies the contractual nature of federal conditional grants. conditional grants, of course, are not merely contracts between the federal government and localities because the exchange of funds between these governmental entities raises federalism concerns. therefore, adequately addressing problems of enforcing breaches of these conditions through the fca requires a fuller discussion of congress‘s authority to create conditional grants under its spending power. the supreme court has articulated three direct limitations on the spending power: (1) conditions on grants must be made in pursuit of the ―general welfare,‖ (2) conditions must be related to the federal interest in the particular program, and (3) there is some point at which ―the financial inducement offered by congress might be so coercive as to pass the point at which pressure turns into compulsion.‖139 these constraints, however, do little to limit conditional spending.140 137  sandler & schoenbrod, democracy, supra note 100, at 103. 138  id. 139  south dakota v. dole, 483 u.s. 203, 207-11 (1987) (internal quotations omitted). 140  samuel r. bagenstos, spending clause litigation in the roberts court, 58 duke l.j. 345, 355 (2008) (―none of these direct limitations on the spending power has had any real bite in the cases.‖); brian galle, getting 2011 columbia journal of race and law 52 instead, the court has indirectly constrained the ability to enforce funding conditions by applying the ―clear statement‖ canon of statutory construction: conditions are only enforceable to the extent they provide ―clear notice regarding the liability at issue.‖141 the court justifies the use of this canon by invoking an analogy to notice in contract law: ― ‗[l]egislation enacted pursuant to the spending power is much in the nature of a contract,‘ and therefore, to be bound by ‗federally imposed conditions,‘ recipients of federal funds must accept them ‗voluntarily and knowingly.‘ ‖142 scholars dispute whether the contract analogy adequately justifies the clear statement rule,143 but for the purposes of this article, it is sufficient to note that fca suits do not offend the notice principle because the fca requirement that a defendant ―knowingly‖ commit fraud should ensure that defendants have clear notice of their obligations before liability will attach.144 the district court in westchester held that the relevant regulatory and statutory background combined with hud guidance materials were sufficiently clear to create liability, and there existed a triable issue of fact as to whether the county was on notice of its affh obligations.145 an accurate analysis of fca liability based on a violation of conditional spending requirements, therefore, should track whether the underlying program provides sufficiently clear notice to recipients. on this reading, the fca does not undermine the notice concerns driving the clear statement rule, as the statute addresses whether the grantee is aware of its obligations.146 spending: how to replace clear statement rules with clear thinking about conditional grants of federal funds, 37 conn. l. rev. 155, 162 (2004) [hereinafter galle, spending] (―no modern court of appeals has ever held that an expenditure did not advance the general welfare, or that a state was coerced into accepting the conditions attached to a federal grant. only very rarely have courts found that a condition was not reasonably related to the spending it accompanied.‖). 141  arlington cent. sch. dist. bd. of educ. v. murphy, 548 u.s. 291, 296 (2006); see also pennhurst state sch. & hosp. v. halderman, 451 u.s. 1, 17 (1981). 142  murphy, 548 u.s. at 296 (quoting pennhurst, 451 u.s. at 17). 143  see galle, spending, supra note 140, at 166-74 (arguing contract principles do not justify clear notice); see also bagenstos, supra note 140, at 393-407 (same). 144  31 u.s.c.a. § 3729(a)(1)(a) & (b) (west 2010). 145  united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester cnty., n.y., 668 f. supp. 2d 548, 561-68 (s.d.n.y. 2009). 146  the existence of fca damages, however, might cast a shadow over a court‘s determination of whether an underlying statute provides clear notice of liability. for instance, in the recent case of arlington central school 53 enforcing civil rights obligations through the false claims act vol. 1:1 aside from the notice issue, an fca action based on a violation of a spending condition might be problematic for another reason. federal spending might be so significant that local officials are coerced into accepting money, regardless of whether conditions undercut their own interests or other federalism principles, such as ensuring a diversity of local policies.147 the clear statement rule, then, limits the instances in which these values will be sacrificed on account of localities‘ acceptance of federal money.148 this insight illuminates a comparison of fca actions to traditional institutional reform suits. one critique of institutional reform litigation is that local legislatures often have little flexibility in responding to constitutional violations. communities have scarce resources, and correcting violations of aspirational rights requires policy decisions about how those resources are best allocated. fca actions are more palatable than traditional institutional reform suits because they are based on ―contractual‖ violations where localities bought into obligations underlying their fca liability; those obligations, in turn, were subject to negotiation between political bodies. accordingly, localities could have refused the federal money and could refuse future grants. but the federalism concerns that inform the clear statement rule—namely, that localities can be coerced into accepting funds—suggest these options might be illusory. identifying when federal grants are coercive enough to undermine federalism principles such as favoring locally tailored policies requires an account of why and when local decision-makers accept conditional funds.   after investigating this question, district board of education v. murphy, the court concluded that an act‘s feeshifting provision—entitling prevailing parents to recover ―reasonable attorneys‘ fees as part of the costs‖ in proceedings to enforce the statute— did not put states on notice that they would be liable to pay those parents‘ expert fees. 548 u.s. 291, 300-03 (2006). cases addressing the enforceability of spending conditions are matters of statutory construction, but when a condition is found enforceable, a knowing breach of that condition might also entail treble damages and statutory penalties under the fca. see 31 u.s.c.a. § 3729(a)(1). it would not be surprising if a court‘s awareness of this increased liability mitigated a willingness to find a condition enforceable. 147  brian galle, federal grants, state decisions, 88 b.u. l. rev. 875, 879 (2008) [hereinafter galle, federal grants]. see also davis ex rel. lashonda d. v. monroe cnty. bd. of educ., 526 u.s. 629, 655 (1999) (―only if states receive clear notice of the conditions attached to federal funds can they guard against excessive federal intrusion into state affairs and be vigilant in policing the boundaries of federal power.‖). 148  see galle, spending, supra note 140, at 183-85 (discussing federalism justifications for clear statement rule). 2011 columbia journal of race and law 54 professor brian galle concludes that local decision-makers are capable of making rational decisions about the interests furthered by accepting or declining conditional funds. he posits that there is no evidence for the proposition that ―state decisions to accept funds fail to preserve the values that federalism protects.‖149 a full account of the conditions under which localities accept federal funds is beyond the scope of this article, but if galle‘s conclusions are correct, the contractual nature of fca actions may assuage some federalism concerns generally levied at institutional reform litigation. at the least, recognition that federal spending conditions implicate accountability and federalism principles complicates the claim that fca actions are analogous to suits enforcing contractual breaches. however, fca suits should at least loosely track the supreme court‘s clear statement rule, thereby alleviating notice concerns. moreover, a strong basis exists to conclude that fca suits are less threatening to accountability and federalism interests than traditional institutional reform litigation because defendants bought into spending conditions and can choose to opt-out of future federal spending obligations. 2. consent decrees and injunctive relief another criticism of traditional institutional reform litigation posits that because judicial institutions lack expertise and monitoring capabilities, they are ill-suited to devise remedies for violations of aspirational rights. fca suits are responsive to this claim as well. first, the fca does not provide for injunctive relief. the damages remedy normally available to relators should be less offensive to critics of institutional reform litigation—for example, cases like lyons and rizzo limited injunctive relief, but endorsed money damages.150 this limitation on the form of remedy does not end the matter: even if a court cannot impose injunctive relief, the parties are not precluded from entering a settlement that includes equitable components.151 most institutional reform cases that are not 149  galle, federal grants, supra note 147, at 934-35. 150  see city of los angeles v. lyons, 461 u.s. 95, 105-12 (1983); rizzo v. goode, 423 u.s. 362, 378-380 (1976); see also jeffries & rutherglen, supra note 2, at 1417 (discussing remedies in both lyons and rizzo). 151  parties may join an fca suit with causes of action that provide for injunctive relief. upon intervening in westchester, the government sought injunctive relief under the housing and community development act. see complaint-in-intervention of the united states of america, united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester cnty., n.y., 55 enforcing civil rights obligations through the false claims act vol. 1:1 dismissed are resolved through consent decrees anyway, and the potential for significant liability under the fca—treble damages plus statutory penalties—provides defendants with a strong incentive to settle. therefore, critics of institutional reform could reasonably posit that an fca action ultimately retains the problems associated with litigation directed by a controlling group of lawyers. the private attorneys, however, are significantly less powerful in a qui tam suit than in a traditional institutional reform action. recall that the relators must present their claim to the federal government, which can then intervene and take over the suit.152 for instance, in westchester, the federal government intervened after the private relators were granted summary judgment on several important elements.153 most scholars agree that when federal officials engage in structural reform litigation, the remedies they seek are not as problematic as those sought only by private plaintiffs.154 court orders obtained by federal officials ―involve some degree of political accountability in the decision to sue and to seek structural relief‖ and can be seen as ―an acceptable form of bargaining between governments.‖155 moreover, intervention by the federal government implies involvement by the federal agency charged with implementing the underlying program. for instance, hud played an active role in negotiating the westchester settlement, and it has continued to participate in monitoring and evaluating westchester‘s implementation plans.156 critics complain that private advocates lack the necessary expertise and sensitivity to the realities of local government to design realistic remedies. these criticisms are less persuasive when directed against the federal agency charged with implementing the relevant program. agencies arguably have the no. 06 civ. 2860 (s.d.n.y. aug. 10, 2009). it also appears that settlements may contain injunctive elements even when causes of action provide only for damages. cf. local no. 93, int‘l ass‘n of firefighters, afl-cio v. city of cleveland, 478 u.s. 501, 525 (1986) (noting courts are not ―barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial‖). 152  see supra section ii.a.2. 153  see supra notes 80-81. 154  jeffries & rutherglen, supra note 2, at 1414; sabel & simon, supra note 110, at 1091 & n.218; zaring, supra note 100, at 1067-70. 155  jeffries & rutherglen, supra note 2, at 1421. 156  see supra section iii.b; see also press release, dep‘t of hous. & urban dev., hud statement on the revised implementation plan of westchester county, new york (mar. 16, 2010), available at http://portal. hud.gov/portal/page/portal/hud/press/press_releases_media_advisories /2010/hudno.10-051. 2011 columbia journal of race and law 56 ―best information about and most sophisticated understanding‖ of complex policy questions implicated by enforcement issues.157 3. infringing on executive prerogatives even if agency involvement is desirable, it still might be the case that the fca improperly allows a relator to co-opt the federal government‘s enforcement discretion. hud has chosen not to enforce the affh provisions in the cdbg program; the westchester defendants specifically noted that it submitted its documents to hud, and hud continued to grant it funds.158 this determination was likely a conscious agency decision to allocate resources in a particular manner, a species of agency action generally afforded great deference.159 addressing the extent to which an fca action infringes on agency policymaking requires pulling apart why agency discretion is so strong in such circumstances. if the underlying concern is that agencies have limited resources, then fca actions do not infringe significantly on agency power because private actors fund the litigation. in fact, the public-private enforcement partnership is one of the great benefits of fca actions. the federal government has insufficient resources to adequately uncover fraud, and the qui tam provision incentivizes private parties to take the reins in certain cases. private enforcement offers efficacy gains because private parties are often more apt at detecting violations than are agencies, and they can ―correct for agency slack‖ due to political pressure, laziness, or self-interest.160 but agencies are accorded discretion in enforcement for other reasons as well. maximum enforcement is not necessarily optimal, and private parties may be ―insufficiently sensitive to the litigation costs of their suits,‖ including strains on judicial resources 157  matthew c. stephenson, public regulation of private enforcement: the case for expanding the role of administrative agencies, 91 va. l. rev. 93, 127 (2005). 158  united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester cnty., n.y., 668 f. supp. 2d 548, 569-70 (s.d.n.y. feb. 24, 2009). 159  see massachusetts v. epa, 549 u.s. 497, 527 (2007). of course, an fca action does not challenge an agency enforcement decision and is therefore not governed by the principle that agency decisions not to take enforcement action are presumptively non-reviewable. see heckler v. chaney, 470 u.s. 821 (1985). 160  stephenson, supra note 157, at 107-13. 57 enforcing civil rights obligations through the false claims act vol. 1:1 and disruptive impacts on affected communities.161 agencies also may be better equipped to target enforcement actions that advance social interests. accordingly, legislatures often react to complex policy problems by deliberately promulgating broad statutes, leaving to the discretion of expert agencies questions of appropriate enforcement levels.162 additionally, private enforcement might upset partnerships between regulators and regulated entities because it can undermine cooperative efforts, and it may impede agency techniques designed to incentivize industry self-regulation.163 the fca model assuages some of these concerns. if the government intervenes, it has the power to dismiss the action.164 likewise, the government can settle the action so long as the court determines the settlement is fair.165 therefore, the executive retains significant control over the amount and type of fca suits. one criticism remains: simply responding to these fca actions might affect agencies‘ enforcement agendas.166 but, some private influence over agency priorities is tolerated in other instances—for example, citizen suits may pose the same problems for agencies, and interested persons may petition for agency rulemaking167— suggesting this critique need not be fatal. moreover, hud may be able to preserve control over enforcement of the affh provision through regulations or policy statements. courts have not decided conclusively whether regulations can provide the clarity requisite to make spending conditions enforceable against states and localities.168 if agency 161  id. at 114-15. 162  id. at 116. 163  id. for a discussion of whether the qui tam structure of the fca infringes the take care clause of article ii, see pamela h. bucy, private justice and the constitution, 69 tenn. l. rev. 939, 950-56 (2002) (arguing that the executive branch retains sufficient control over relator to satisfy the take care clause under morrison v. olson, 487 u.s. 654 (1988)); see also infra note 185 (addressing constitutional arguments). 164  31 u.s.c.a. § 3730(c)(2)(a). 165  id. § 3730(c)(2)(b). 166  stephenson, supra note 157, at 118-19. 167  administrative procedure act, 5 u.s.c. § 553(e) (2006). 168  galle, federal grants, supra note 147, at 883. under the contractual ―notice‖ theory of conditional spending, federal regulations should be relevant. but allowing congress to enact ambiguous conditions later enforceable by agencies might undermine federalism principles by depriving states of an opportunity to oppose the condition through the political process. see galle, spending, supra note 140, at 164 (noting that disagreements between the majority and dissent reflected these principles in davis ex rel. lashonda d. v. monroe cnty. bd. of educ., 526 u.s. 629 (1999)). 2011 columbia journal of race and law 58 actions can provide the necessary clear notice, then agencies like hud maintain the ability to shape what constitutes a violation of the underlying grant conditions, thereby retaining control over potential fca suits. this point cuts in two directions. the power to promulgate regulations allows hud to crystallize grantees‘ affh obligations. at the same time, the potential for fca liability may disincentivize hud from promulgating regulations for fear of over-enforcement, thereby increasing the likelihood that affh conditions would not provide sufficiently clear notice to be enforceable under the clear statement canon. in sum, the degree to which fca actions infringe on executive prerogatives is indeterminate. statutory provisions in the fca reserve to executive agencies a significant amount of control over enforcement activities. likewise, agencies retain the ability to shape what constitutes a violation of the underlying obligations to be enforced through an fca lawsuit. in contrast, like other private enforcement mechanisms, fca suits may interfere with an agency‘s enforcement agenda. similarly, the potential for fca liability may threaten over-enforcement to such a degree so as to disincentivize agency action crystallizing obligations of grantees. b. will the fca model sufficiently protect civil rights? if the fca model mediates some of the critiques levied against institutional reform litigation, do these actions retain the characteristics that make public law litigation a powerful tool? the fca model preserves the most important feature of institutional reform litigation: politically insulated courts.169 this characteristic allows courts to champion politically unpopular causes, and courts maintain the ability to act as catalysts for change, ―indicat[ing] publicly that the status quo is illegitimate and cannot continue.‖170 westchester is a terrific example of this phenomenon. the case attracted significant media attention and the deputy secretary of hud identified the litigation as a model case for future affh enforcement.171 in contrast, courts‘ hands are tied with respect to injunctive remedies. under the public law model, the insulated nature of courts is important not only with respect to identifying violations, but also because courts are uniquely situated to impose necessary 169  see supra part iv.b. 170  sabel & simon, supra note 110, at 1056. 171  see supra part iii.b (discussing news releases). 59 enforcing civil rights obligations through the false claims act vol. 1:1 remedies, even at great cost. money damages are unlikely to adequately remedy most systemic civil rights violations. even with the possibility of consent decrees containing equitable relief, the very features that make fca actions palatable to critics of institutional reform might be limitations from the perspective of structural reform advocates. the potential for federal intervention signals cooption of an advocate‘s litigation and may result in settlements that are less expansive or insufficiently protective of civil rights. additionally, fca procedures facilitate coordination between various stakeholders—private advocates, local decision-makers, and federal agencies—and thereby track many of the collaborative features of the experimentalist model of public litigation.172 while at first blush these features may seem beneficial, critics who are otherwise in favor of liberal institutional reform litigation have charged that democratic experimentalist scholars may ―err on the side of optimistic overstatement,‖ and accordingly, ―experimentalist governance exists primarily in the eyes of its beholders, rather than in the world itself.‖173 these scholars contend that this model understates the complexity of competing interests, and in practice, collaboration in benchmarking and revising goals rarely produces results desired by civil rights advocates.174 evaluating the efficacy of these collaborative schemes requires empirical analyses beyond the scope of this article. but some evidence does suggest that reform is more likely to be effective in the long-term where there is support from the federal government, and positive incentives are offered to induce compliance.175 in fact, close to seventy percent of westchester‘s total settlement went back into the county‘s account with hud, to be returned to westchester in pursuance of the development of affordable housing.176 in other words, rather than an unfunded 172  see supra part iv.b (discussing features of experimentalist model). 173  see katherine r. kruse, instituting innocence reform: wisconsin‟s new governance experiment, 2006 wis. l. rev. 645, 674-75 (noting criticisms). 174  see, e.g., richard elmore, details, details, details, 28 n.y.u. rev. l. & soc. change 315 (2003) (presenting general criticisms of democratic experimentalism); martha minow, school reform outside laboratory conditions, 28 n.y.u. rev. l. & soc. change 333 (2003) (same); mark tushnet, a new constitutionalism for liberals, 28 n.y.u. rev. l. & soc. change 357 (2003) (same). 175  rosenberg, supra note 111, at 36. 176  see stipulation and order of settlement and dismissal para. 2, united states ex rel. anti-discrimination ctr. of metro n.y., inc. v. westchester cnty., n.y., no. 06 civ. 2860 (s.d.n.y. aug. 10, 2009). 2011 columbia journal of race and law 60 order requiring a locality to rearrange its limited budget to remedy a constitutional violation, fca actions directed at grant recipients can offer the underlying grant as a carrot. westchester has an obvious incentive to comply with the order—more federal money. moreover, fca actions are not a substitute for traditional lawsuits aimed at remedying constitutional or statutory violations. but as discussed above, doctrinal developments such as restrictive standing requirements have made traditional reform suits harder to win.177 according to one author, as far as injunctive relief is concerned, meaningful enforcement of civil rights is now left ―solely to the government.‖178 moreover, as noted above, federal enforcement has been seriously lacking.179 the fca model injects back into this public enforcement model many of the characteristics that make private enforcement effective: ―the eyes, experiences, motivations, and resources of millions of americans who bear witness to institutionalized wrongdoing and are willing to endure the expense of rooting it out.‖180 the fca model provides a mechanism to tap into these private resources despite doctrinal barriers to traditional institutional reform litigation. vi. conclusion the future of fca litigation looks promising, and this article suggests that the qui tam model can be an effective method of sparking institutional reform. thousands of grantees accept federal money without adequately abiding by civil rights conditions attached to the grants they receive. there are currently over one thousand jurisdictions participating in the cdbg program, few of which have adequately addressed their fair housing obligations.181 congress also conditions federal grants on agreements to promote civil rights norms through various other statutes.182 finally, 177  see supra notes 107-109 and accompanying text. 178  myriam e. gilles, reinventing structural reform litigation: deputizing private citizens in the enforcement of civil rights, 100 colum. l. rev. 1384, 1386 (2000). 179  see supra part ii.b.2. 180  gilles, supra note 178, at 1387. 181  see supra note 58 and accompanying text. 182  title vi of the civil rights act of 1964 requires that recipients of federal funds refrain from using federal money to discriminate on the basis of race and ethnicity, 42 u.s.c. § 2000d (2006); the rehabilitation act of 1973 forbids disability discrimination in federally-funded programs and activities, 29 u.s.c. § 794 (2006); and title ix of the education amendments of 1972 forbids gender discrimination in educational programs that receive federal funds, 20 u.s.c. § 1681 (2006). see johnson, supra note 61 enforcing civil rights obligations through the false claims act vol. 1:1 considering congress‘s renewed interest in the fca, relators should have an easier time bringing fca claims in the future. a few issues, however, caution against too rosy a view of future fca claims. importantly, while municipalities can be liable under the qui tam provision of the fca, states cannot be subject to fca liability.183 this limitation severely restricts the range of institutional actors potentially subject to reform under the fca model. moreover, because of its unique statutory structure, the fca implicates several constitutional concerns. other articles tackle these questions in detail,184 and courts generally have not been receptive to these sorts of challenges.185 but these constitutional 44 (discussing various spending conditions); see also gilles, supra note 178 (proposing qui tam amendment to statute authorizing doj to seek injunctive remedies against police departments); see generally dayna bowen matthew, a new strategy to combat racial inequality in american health care delivery, 9 depaul j. health care l. 793 (2005) (proposing relators bring fca actions against medical care providers for failure to abide by title vi requirements). 183  compare vt. agency of natural res. v. united states ex rel. stevens, 529 u.s. 765, 784 (2000) (holding that states are not ―persons‖ subject to qui tam liability under the fca) with cook county, ill. v. united states ex rel. chandler, 538 u.s. 119, 128-29 (2003) (distinguishing stevens and holding that municipalities are subject to qui tam liability under the fca). 184  see bucy, supra note 163, at 949-56 (discussing arguments); gilles, supra note 178, at 1433-49 (discussing constitutional concerns associated with qui tam actions and other provisions ―deputizing‖ private citizens to enforce public laws). 185  for instance, empowering private persons to serve as private attorneys general may violate the take care clause by infringing too heavily on executive power. however, because of the substantial power retained by the doj in fca cases, various circuit courts of appeals have found the fca does not violate this clause. see united states ex rel. stone v. rockwell int‘l corp., 282 f.3d 787 (10th cir. 2002); riley v. st. luke‘s episcopal hosp., 252 f.3d 749 (5th cir. 2001); united states ex rel. taxpayers against fraud v. gen. elec. co., 41 f.3d 1032 (6th cir. 1994); united states ex rel. kelly v. boeing co., 9 f.3d 743 (9th cir. 1993). additionally, if qui tam relators are considered ―officers,‖ their role in the fca could infringe on the appointments clause. several circuits also have rejected this argument, in large part because relators do not have expansive responsibility or power. rockwell, 282 f.3d at 804-05; riley, 252 f.3d at 757-58; taxpayers against fraud, 41 f.3d at 1041-42; kelly, 9 f.3d at 757-59. fca defendants also have advanced arguments, largely unsuccessfully, under the excessive fines clause and under the due process clause. see, e.g., united states v. mackby, 339 f.3d 1013, 1017 (9th cir. 2003) (recognizing applicability of the excessive fines clause to fca damages and finding no violation given the specific damages awarded); kelly, 9 f.3d at 759-60 (dismissing defendant‘s due process argument). lastly, the supreme court recently resolved 2011 columbia journal of race and law 62 issues could become mechanisms that allow courts skeptical of institutional reform litigation to derail future fca actions. relatedly, the court requires clear notice before spending conditions will be enforced against state and local grantees.186 the court in westchester did not squarely address this issue, but the clear statement rule could dissuade future courts from finding violations of spending conditions enforceable through the fca. finally, after several months of efforts by the court monitor, hud, and adc, westchester county has yet to devise an adequate implementation plan. the success or failure of the westchester litigation—including the continued depth and vitality of hud participation and the degree of judicial involvement eventually required to enforce the settlement decree—will be key data points in assessing the efficacy of the fca model of institutional reform. standing issues under the fca, holding that ―[t]he fca can reasonably be regarded as effecting a partial assignment of the government‘s damages claim,‖ and therefore, the ―united states‘ injury in fact suffices to confer standing‖ on relators. stevens, 529 u.s. at 773-74. 186  see supra part v.a.1. 3-archer no santa clause autumn 2013 2013 columbia journal of race and law 55 there is no santa claus: the challenge of teaching the next generation of civil rights lawyers in a “post-racial” society deborah n. archer* this essay takes a fresh look at the scholarship on the practice of cross-cultural and client-centered lawyering. the current scholarship explores methods of training law students to be mindful of the ways that cultural differences can impact legal representation. however, this scholarship has not addressed how to equip students to address issues of racial discrimination in light of the post-racial lens through which many view these problems. legal educators must examine how law students’ beliefs regarding the current relevance of race in america affects their ability to represent clients who believe they are victims of racial discrimination. i. introduction……………………………………………………………. 56 ii. the post-racial narrative ………………………………………… 58 a. societal narrative ……………………………………………………... 59 b. narrative learned by the law students …………………….………. 61 iii. when worlds collide: clashing narratives and the disconnect between students and clients ……………… 63 a. teaching racial narratives ………………………………………….. 64 iv. post-racialism and cross-cultural lawyering ………….. 67 a. the significance of culture in lawyering …………………………... 67 b. cross-cultural lawyering and the development of lawyering skills …………………………………………………………………... 69 * professor of law and director of the racial justice project, new york law school. b.a., 1993 smith college; j.d., 1996 yale law school. i would like to thank richard buery, elise boddie, stephen ellmann, aderson francois, kris franklin, doni gewirtzman, kristin henning, gerald korngold and michael pinard for their thoughtful comments and edits on earlier drafts. i would also like to thank lailah pepe for her invaluable research assistance. 56 the challenge of teaching the next generation of civil rights lawyers vol. 4:1 c. the need for a more aggressive approach to cross-cultural lawyering ……………………………………………………………... 70 d. towards immersion lawyering ……………………………………… 71 v. conclusion………………………………………………………………... 72 “the enduring hope is that race should not matter; the reality is that too often it does.”1 i. introduction consider this story: in my civil rights clinic, i supervised a team of two white students working on an employment discrimination case in which the plaintiff had filed a complaint pro se alleging racial discrimination under title vii of the civil rights act of 1964.2 the complaint involved the harassment of the lone black supervisor in a small company. shortly after the plaintiff’s promotion, he was assigned a new white supervisor. at about the same time, his intimate relationship with a white co-worker became public. soon thereafter, his new supervisor started to reprimand him for minor infractions that white employees had committed for years with no repercussions. he also alleged that he was given work assignments that were impossible to complete in the time allotted. ultimately, he believed his supervisor was setting him up for termination because of his race. how did the students analyze this problem? they immediately focused on the fact that no one had ever called the plaintiff a slur and that the supervisor followed all of the procedural rules in writing their client up. during our weekly supervision meetings, the team expressed that they had difficulty building a relationship with their client. they complained that he seemed annoyed by their questions and did not engage in conversation with them. on several occasions, the students proposed race-neutral theories of the case and appeared irritated by their client’s rejection of these alternative approaches. in supervision meetings with me, they confessed their belief that race was not relevant to the case. when i asked the students about their reluctance to raise claims based on race, they stated that there was a lack of clear evidence of racial animus in the form of racial slurs or racially charged language. they also said that they would be embarrassed to raise such arguments. they felt that the judge would be certain to reject those theories and would think poorly of the students for having made such specious claims. the students believed the conduct was wrong but not necessarily racially motivated, and they did not want to break social or legal etiquette by highlighting race in their case. absent overt acts of racial animus, these students were unable to perceive the pervasive role race played in their client’s life. sadly, racism is alive and well. we are not all living post-racial lives. in areas ranging from housing to education, from health care to criminal justice, race continues to have a profound impact on american lives.3 we have grown accustomed to the traditional narrative of civil rights and discrimination: the openly racist individual calling a black person a racial slur, or government officials designating drinking fountains as “white” or “colored.” in contemporary society, however, racism is less often experienced in such overt ways. as a result, the narrative that racism is no longer significant seems 1 parents involved in cmty. schools v. seattle sch. dist. no. 1, 551 u.s. 701, 787 (2007) (kennedy, j., concurring in part and concurring in the judgment). 2 equal employment opportunities, 42 u.s.c. §§ 2000e-2000e-17 (2011). 3.mario l. barnes et al., a post-race equal protection?, 98 geo. l.j. 967, 982-93 (2010); trina jones, antidiscrimination in peril? 75 mo. l. rev. 423, 427 (2010). 2013 columbia journal of race and law 57 reasonable to many americans. in a recent newsweek poll, just 19% of whites, as compared to 60% of blacks, believed race was a major problem in america.4 indeed, while that poll found that large majorities of both white and black americans concur that racial stereotyping continues, most white americans, in contrast to black americans, believe that blacks have equal access to affordable housing, employment, and the fair administration of justice, despite often overwhelming facts to the contrary.5 legal educators need to change the narrative of racial discrimination to better illustrate racism’s pervasive role in american institutions and culture. in teaching antidiscrimination courses to law students, i have observed that in most areas of their lives, my students respect and acknowledge different cultures and the importance of those distinctions in their personal and professional interactions. i have increasingly noticed, however, that this same respect for diversity is not extended to issues of race and racial discrimination. in recent years, more of my students espouse the belief that merely acknowledging the continued importance of race or the impact of racial discrimination violates the principle of colorblindness they are taught to embrace.6 they tell me that unlike some aspects of culture, racial distinctions are largely irrelevant to them as individuals and their role as lawyers – they just do not “see race.” for too many in this generation of law students, the myth of the color-blind narrative is reinforced by the way race is treated in the typical law school curriculum, which rarely exposes law students to discussions about the nature of modern racism. unfortunately, the students take what they have learned, or have not learned, in the classroom and apply it to their interactions with clients. but the next generation of social justice advocates will not confront a post-racial world when representing people of color. when i tell my clinic students that not only is race an issue in their case, but that their perspective on race is a detriment to their relationship with their client, i feel a little like a parent finally telling her child that there is no santa claus. many students hold on to their discomfort with highlighting racial issues, allowing their belief in a post-racial society to shape their approach to their clients’ legal issues. they seldom question their foundational belief in the irrelevance of race, nor do they consider whether the client shares their outlook. this is a serious problem for the work of law professors. law school clinicians have developed tools to address the way that culture, including racial identity, impacts our students’ relationships with their clients. culturally competent and client-centered lawyering tells us that we need to see the world through the eyes of the client.7 while this approach has been helpful in addressing most aspects of cultural difference, it has been less effective in equipping students to address issues of racial 4 doug schoen, newsweek/daily beast poll finds majorities of americans think country divided by race, the daily beast, http://www.thedailybeast.com/articles/2012/04/07/newsweek-daily-beast-poll-finds-majorities-of-americans think-country-divided-by-race.html (last visited dec. 2, 2013). see also pew research poll for cbs news from 2013 http://www.pollingreport.com/race.htm (last visited dec. 2, 2013) (sixty percent of whites and thirty-eight percent of blacks think both races have equal chances of getting ahead). 5 eduardo bonilla-silva, racism without racists: color-blind racism and the persistence of racial inequality in the united states 2 (2010). 6.see margalynne j. armstrong & stephanie m. wildman, teaching race/teaching whiteness: transforming colorblindness to color insight, 86 n.c. l. rev. 635, 648 (2008); judith g. greenberg, erasing race from legal education, 28 u. mich. j.l. reform 51, 68 (1994). although post-racialism and colorblindness are related concepts, they are in fact distinct. “while the ideology of colorblindness shares many features and objectives with the ideology of post-racialism, . . . post-racialism is yet distinct as a descriptive matter, in that it signals a racially transcendent event that authorizes the retreat from race. colorblindness, in comparison, offers a largely normative claim for a retreat from race that is aspirational in nature.” sumi cho, post racialism, 94 iowa l. rev. 1589, 1597 (2009). in addition, some posit that colorblindness is primarily the ideology of neoconservatives, while post-racialism’s primary audience is “moderate-toliberal whites who suffer from ‘racial exhaustion.’” id. at 1599. 7 see infra part iii. 58 the challenge of teaching the next generation of civil rights lawyers vol. 4:1 discrimination. clinicians must examine how a law student’s beliefs regarding the relevance of race impact their representation of clients. how well can law students represent their clients if they have not challenged their own belief that we live in a post-racial society? indeed, [t]his tension between material conditions and what one is cultured to see or not see — the dilemma of the emperor’s new clothes, we might call it — is a tension faced by any society driven by bitter histories of imposed hierarchy . . . i do wish . . . to counsel against the facile innocence of those three notorious monkeys, hear no evil, see no evil, and speak no evil. theirs is a purity achieved through ignorance. ours must be a world in which we know each other better. to put it another way, it is a dangerous, if comprehensible, temptation to imagine inclusiveness by imagining away any obstacles. it is in this way that the moral high ground of good intentions knows its limits. we must be careful not to allow our intentions to verge into outright projection by substituting a fantasy of global seamlessness that is blinding rather than just color-blind.8 this essay argues that america’s embrace of the post-racial fiction undermines the ability of lawyers and law students to represent clients impacted by modern forms of racial discrimination. part i of this essay describes the standard post-racial narrative. this section also explores how the post-racial lens has been adopted into legal culture and strengthened by the typical law school curriculum. reinforcement of the post-racial ideal leads to a disconnection between law students’ beliefs and clients’ realities. relying on experiences in my civil rights clinic, part ii discusses the impact that the prevailing color-blind narrative can have on the representation provided to victims of racial discrimination. this section also explores the importance of cross-cultural competence and how it encourages students to be mindful of the ways that cultural differences can impact legal representation. i question, though, whether the focus on individual cultural differences between lawyer and client is sufficient to address the challenges of lawyering in an allegedly post-racial society. finally, part iii begins a discussion of how legal educators can use “immersion lawyering” to better prepare this generation of social justice lawyers. ii. the post-racial narrative just a few years after the abolition of slavery, the united states supreme court prepared to proclaim this country post-racial. in the civil rights cases,9 eighteen years after the passage of the thirteenth amendment, the court declared: when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.10 since the civil rights cases, the supreme court has embraced the goal of a color-blind society, repeating the refrain that our nation and our constitution recognize no race or color. surely, a society where race does not impact life outcomes is a worthy goal. yet we have repeated that mantra so frequently that many are convinced that the time has arrived; that we have finally been exonerated for our racially 8 patricia j. williams, seeing a colorblind future: the paradox of race (1997). 9 civil rights cases, 109 u.s. 3 (1883). 10 id. at 25. 2013 columbia journal of race and law 59 discriminatory past and are all playing on a level field.11 indeed, with the election of president obama, many commentators have claimed that america is finally “post-racial” and “post-civil rights.”12 in a world where a black man with an african name can achieve america’s highest office, the argument goes, civil rights laws are no longer needed to promote equal opportunity. racial discrimination exists only at the margins — our society is fundamentally fair when it comes to issues of race. the result is that many people are reluctant to raise issues of racial discrimination and find it distasteful when others do. a. societal narrative “there’s not a black america and white america and latino america and asian america; there’s the united states of america.”13 today, calling someone a racist is almost as bad as calling him or her a terrorist. as john powell has asserted, [t]o call someone racist today is seen as incendiary and a form of character assassination. the good american not only refuses to engage in conscious racially motivated behavior, he also refuses to see race or call it out.14 our social norms discount the pervasiveness of race in american institutions,15 and we have a general reluctance to identify any social problems as a product of racial discrimination.16 we look to our racial progress as evidence that racism is an issue of the past, not the present.17 this post-racial philosophy asserts that race-conscious thinking is no longer necessary because we have finally “transcended [the] racial divisions of past generations.”18 although post-racialism has appeared many times in our history,19 it picked up steam with the election of president barack obama,20 and has since become embedded in the fabric of american culture. indeed, president obama’s election has given post-racialism moral and legal legitimacy.21 on an individual level, those who believe we are post-racial argue that “civil society should eschew race as a central organizing principle of social action.”22 post-racialism “reflects a belief that due to significant 11 see michael selmi, understanding discrimination in a “post-racial” world, 32 cardozo l. rev. 833 (2011). 12 roy l. brooks, making the case for atonement in post-racial america, 14 j. gender race & just. 665 (2011) (stating that commentators have characterized america as post-racial after the election of the first african american president); ian f. haney lopez, is the “post” in post-racial the “blind” in colorblind?, 32 cardozo l. rev. 807 (2011) (noting that after obama’s election, commentators marvel that we now live in a post-racial america). 13 barack obama, illinois senate candidate, keynote address at the democratic national convention (july 27, 2004) (transcript available at http://www.washingtonpost.com/wp-dyn/articles/a19751-2004jul27.html). 14 john a. powell, post-racialism or targeted universalism?, 86 denv. u. l. rev. 785, 788 (2009). 15 see selmi, supra note 11, at 834. 16 see id. at 835. 17 barnes, et al., supra note 3, at 968. 18 see cho, supra note 6, at 1601. 19 see, e.g., william julius wilson, the declining significance of race: blacks and changing american institutions (1978) (positing that class had superseded race as a deciding factor in determining opportunities for black americans); dinesh d’souza, the end of racism (1995). 20 see selmi, supra note 11, at 835; jones, supra note 3, at 433. interestingly, president obama lost the white male vote, and the 2008 election resulted in no non-incumbent african americans being elected to congress. selmi, supra note 11, at 834. 21 see girardeau a. spann, disparate impact, geo. l.j. 1133, 1162 (2010); see also powell, supra note 14, at 789 (asserting that to post-racialists, obama is proof that we are post-racial). 22 cho, supra note 6, at 1594. 60 the challenge of teaching the next generation of civil rights lawyers vol. 4:1 racial progress that has been made, the state need not engage in race-based decision-making or adopt race-based remedies.”23 this perspective dismisses the relevance of race and the role of racism in the disparities we continue to see in american society. in a post-racial world, racism is perpetrated by a few bad actors. overt racial animus is seen as an aberration from our normal race neutrality.24 for post-racialists, these rare acts of “true racism” are the exceptions that prove the rule. only the most explicit, barefaced acts of racial discrimination are acknowledged; subtle forms of discrimination go unchecked.25 ultimately, post-racialism is the belief that we have achieved colorblindness — indeed, america has twice elected an african american president — and we should not notice or act upon racial differences.26 yet, there are serious and continuing disparities between racial minorities and whites in the united states.27 it is not that post-racialists do not see the inequalities; it is that they look for non-racial explanations for the disparities they see.28 even in assessing the discriminatory and racialized comments that have been directed at president obama while he has been in office, many are quick to take comfort in race-neutral explanations for this conduct. the myth of post-racialism is problematic because of the continued importance of race in our society. this orientation to disparities shapes people’s response to claims of racism: because de jure racial discrimination is largely a relic of the past, post-racialists believe there is essentially a level playing field between whites and racial minorities.29 one consequence of this orientation is that we ignore the present effects of our racist past and the consequences of having built our society along racial divides.30 indeed, post-racial narratives “sever contemporary racial reality from historical events that shaped it and suggest that the consequences of systemic racial oppression ended long ago.”31 post-racialism distorts our view of history as well as our reality. post-racialism also prevents and hampers honest discussions about race, blocking our progress towards true equality.32 furthermore, by eliminating race as a feasible explanation for injustice, postracialism undermines the ability to utilize race-conscious remedies critical to achieving racial equality, while perpetuating the belief that white people are the real victims of racial discrimination.33 this is a story we have seen play out in recent cases addressing race-conscious remedies, including fisher v. university of texas,34 ricci v. destefano,35 and parents involved in community schools v. seattle school district no. 23 id. 24 spann, supra note 21, at 1137. 25 see selmi, supra note 11, at 854. 26 barnes, et al., supra note 3, at 977; jones, supra note 3, at 433; bonilla-silva, supra note 5, at 1. 27 see lia epperson, equality dissonance: jurisprudential limitations and legislative opportunities, 7 stan. j. c. r. & c. l. 213, 215 (2011). 28 jones, supra note 3, at 428; bonilla-silva, supra note 5, at 208; john a. powell, an agenda for the post-civil rights era, 29 u.s. f. l. rev. 889, 901–02 (1995). 29.powell, supra note 28, at 903; see also john mcwhorter, racism in america is over, forbes http://www.forbes. com/2008/12/30/end-of-racism-oped-cx_jm_1230mcwhorter.html (last visited dec 2, 2013.) (discussing obama’s election as proof that we are now in a post-racial america). 30 see barnes, et al., supra note 3, at 977. 31 see jonathan p. rossing, deconstructing post-racialism: humor as a critical cultural project, 36(1) j. comm. inquiry 44, 47 (2012). 32 see id. at 45; cho, supra note 6, at 1596 (arguing that post-racialism takes racial discourse off the table). 33 see rossing, supra note 31 at 48 (finding post-racialism enables a “white-as-victim” framework); cho, supra note 6, at 1596 (finding post-racialism “opens the floodgates of white resentment when confronted with previously accepted and unquestioned civil rights inequities” and restores value to whiteness). 34 fisher v. univ. of tex., 133 s.ct. 2411 (2013). 2013 columbia journal of race and law 61 1.36 a recent study supports the general notion that “whites believe . . . the pendulum has now swung beyond equality in the direction of anti-white discrimination.”37 b. narrative learned by the law students in law school, students combine their own experiences with what they learn in class. unfortunately, the typical law school curriculum fails to adequately address racial issues, reinforcing the prevailing post-racial narrative. when class discussions do turn to more recent cases addressing issues of racial discrimination, such as ricci or parents involved in community schools, the supreme court’s opinions espouse a post-racial philosophy, often dismissing the role of racial discrimination.38 race is not a significant focus of the typical law school curriculum. unless a student seeks out courses on race, she will likely graduate having only studied racial discrimination in her constitutional law course.39 and those course conversations tend to focus on iconic race discrimination cases including brown v. board of education40 and plessy v. ferguson.41 students hear stories about blatant acts of discrimination and the iconic struggles against jim crow: the fight against segregated lunch counters, buses, and schools, and the struggle to register black voters in the face of poll taxes and literacy tests. these older cases focus on explicit, state-sponsored racial discrimination on a level that is very rarely seen today. the current legal paradigm for proving racial discrimination—focusing on unambiguous evidence of an intent to discriminate on the basis of race,42 has conditioned law students to recognize only blatant acts of discrimination, perpetrated by a “bad actor” who has made his racist intentions clear. but today, we are often dealing with “racism without racists.”43 “the united states moved from a generation defined by images of fire hoses, police dogs, stridently racist public officials, and de jure segregation. as society changed, so too did the nature of discrimination.”44 contemporary racism is more nuanced, yet many students leave law school concerned only with the most overt and blatant instances of discrimination. the images of “discrimination” they see are of white college applicants alleging they were denied an educational opportunity because of race-conscious admissions programs.45 35 ricci v. destefano, 557 u.s. 557 (2009). 36 parents involved in cmty. sch. v. seattle sch. dist. no. 1, 551 u.s. 701 (2007). 37 michael i. norton and samuel r. sommers, whites see racism as a zero-sum game that they are now losing, 6 (3) persp. on psychol. sci. 215, 217 (2011). 38 see infra pp. 11–13. 39 margalynne armstrong, teaching by the book race and races: cases and resources for a diverse america, 89 calif. l. rev. 1625, 1626-27 (2001). 40 brown v. bd. of educ., 347 u.s. 483 (1954). 41 plessy v. ferguson, 163 u.s. 537 (1896). 42 e.g., village of arlington heights v. metro. hous. dev. corp., 429 u.s. 252, 264–66, 270-71 (1977); wash. v. davis, 426 u.s. 229, 238–42 (1976). see derek w. black, cultural norms and race discrimination standards: a case study in how the two diverge, 43 conn. l. rev. 503, 546 (2011). 43 eduardo bonilla-silva, supra note 5, at 4. 44 jones, supra note 3, at 429. 45 see cheryl i. harris & kimberly west-faulcon, reading ricci: whitening discrimination, racing test fairness, 58 ucla l. rev. 73, 80 (2010) (arguing that “the paradigmatic victim of race discrimination is now white”); angela onwuachi-willig, when different means the same: applying a different standard of proof to white plaintiffs under the mcdonnell douglas prima facie test, 50 case w. res. l. rev. 53, 53 (1999) (“the idea that whites, in particular white males, are the new victims of discrimination is steadily gaining acceptance among white americans”). 62 the challenge of teaching the next generation of civil rights lawyers vol. 4:1 and taking direction from the united states supreme court, students use colorblindness as an analytical tool when approaching legal problems.46 the supreme court speaks with authority to these students and has established a set of parameters for racial and cultural discourse.47 the court both reflects society’s current attitudes and beliefs regarding race and reinforces them.48 the result is that students are not easily persuaded that race is relevant. like the court, law students tend to approach claims of racial discrimination with skepticism. absent direct evidence of discrimination, the students do not think it is necessary to explore motivation and search for other “evidence” of racial discrimination. a legal education that prioritizes a rigid understanding of racial discrimination as the intentional and malicious acts of individual bad actors, combined with a culture that embraces a post-racial narrative, can encourage law students to embrace the conclusion that redistributive efforts, through antidiscrimination laws and affirmative action programs, have resulted in a more egregious offense: discrimination against whites.49 in this view, emphasizing race or alleging racial discrimination is distasteful, and something that racial minorities often do simply for unfair gain. students may embrace their own personal lack of racism and view raising issues of race as driving a dividing wedge between us as a unified citizenry. similarly, many of the supreme court’s recent decisions involving the use of race in higher education, school integration, and hiring demonstrate the court’s embrace of post-racialism50 and its trivialization of race and racism.51 in parents involved in community schools v. seattle school district no. 1,52 the court addressed the constitutionality of the use of race in reducing racial segregation in elementary and secondary education. in writing for the majority, chief justice john roberts proclaimed, “the way to achieve a system of determining admissions to schools on a nonracial basis is to stop assigning students on a racial basis. the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”53 recent supreme court opinions also eschew contextual analysis, rejecting considerations of race regardless of the purpose, motivation, or context.54 for example, in adarand constructors v. pena,55 justice scalia wrote: to pursue the concept of racial entitlement—even for the most admirable and benign purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. in the eyes of the government, we are just one race here. it is american.56 46 jones, supra note 3, at 431 (arguing that colorblindness is both an ideology and analytical tool in evaluating discrimination claims). 47 see robert l. hayman & nancy levit, the tales of white folks: doctrine, narrative, and the reconstruction of racial reality, 84 calif. 2. rev. 377, 378 (1996). 48 id. 49 girardeau a. spann, disparate impact, 98 geo. l.j. 1133, 1163 (2010). 50 barnes, et al., supra note 3, at 972; helen norton, the supreme court’s post-racial turn towards a zero-sum understanding of equality, 52 wm & mary l. rev. 197, 198 (2010). 51 powell, supra note 28, at 900. 52 parents involved in cmty. sch. v. seattle sch. dist. no. 1, 551 u.s. 701 (2007). 53 id. at 748. (roberts, c.j., quoting brown v. board of education, 349 u.s. 294, 300-301 (1955)). 54 jones, supra note 3, at 438. of course, there are dissenting opinions in all of these cases, and strong professors will encourage robust debate about these opinions. 55 adarand constructors v. pena, 515 u.s. 200 (1995) (scalia, j., concurring). 56 id. at 239. 2013 columbia journal of race and law 63 similarly, in ricci v. destefano, a case striking down the city of new haven’s efforts to address the disparate racial impact of the results of a firefighter examination, the court’s majority labeled the city of new haven’s attention to the racially disparate impact of its promotion examinations as evidence of the city’s discriminatory intent under title vii of the civil rights act of 1965.57 in doing so, the majority opinion divorced the current controversy from the history of discrimination against african american firefighters, viewing this history and context as irrelevant to the narrative.58 the majority viewed the controversy as simply the city of new haven “reject[ing] the test results solely because the higher scoring candidates were white.”59 the court ignored “the backdrop of entrenched inequality that the promotion process at issue in this litigation” was designed to address.60 iii. when worlds collide: clashing narratives and the disconnect between students and clients those who believe that we are post-racial assume a “false universalism”: we all enjoy the same advantages and suffer under the same disadvantages.61 but, most law students and their clients lead different lives—racially, ethnically, and socioeconomically.62 although there is increasing racial and socioeconomic diversity in law school classes, students are relatively privileged compared to their clients.63 the difference goes beyond demographics. even when the lawyer and client are of the same race or ethnicity, the students are often living more integrated lives. they are more likely to have friends of different ethnicities.64 their generation grew up without much racial divide in their popular icons, idolizing eminem as much as jay-z, and oprah winfrey as much as katie couric.65 but as the author touré has written, “some people suggest that the multiracial embrace of barack obama, oprah winfrey, michael jordan, will smith, and others portends the end of racism. but this, as the writer arundati roy says, is like the president pardoning one turkey before thanksgiving and then eating another—and 57 557 u.s. 557; see also norton, supra note 50, at 215–20. 58 557 u.s. 557, 576-577; see also norton, supra note 50, at 219. 59 see ricci, supra note 35, at 579 (2009) (ginsburg, j., dissenting). 60 id. at 611. see also norton, supra note 50, at 219 (discussing the court’s exclusion of discussion of discrimination against african american firefighters). 61 powell, supra note 14, at 791. 62 see jane harris aiken, striving to teach “justice, fairness, and morality”, 4 clinical l. rev. 1, 38 (1997); fran quigley, seizing the disorienting moment, 2 clinical l. rev. 37, 53 (1995). 63 see angela onwuachi-willig, teaching civil rights: teaching employment discrimination, 54 st. louis u. l. j. 755, 760 (2010); lani guinier, admissions rituals as political acts: guardians at the gates of our democratic ideals, 117 harv. l. rev. 113, 145–50 (2003). 64 see eric fong & wsevolod w. isajiw, determinants of friendship choices in multiethnic society, 15 soc. f. 249, 268 (finding that individual characteristics including higher levels of education and income are associated with higher likelihood of inter-ethnic friendships). 65 onwuachi-willig, supra note 63, at 756. although some pop icons like the jackson 5, marvin gaye, or stevie wonder over the last 50 years enjoyed some cross-racial support, it was the support of the black community and not their “cross over hits” that formed the base of those artists’ success. see maureen mahon, right to rock: the black rock coalition and the cultural politics of race at 159 (“by and large, african american artists must first demonstrate success in the black market before gaining access to the mainstream.”). in contrast, artists like jay-z enjoy significant white support, as reports indicate that seventy to eighty percent of rap music consumers are white. see e.g., carl bialik, is the conventional wisdom correct in measuring hip hop audience?, wall st. j. may 5, 2005 available at http://online.wsj.com/article/0,,sb111521814339424546,00.html; julie watson, rapper’s delight: a billion dollar industry, forbes (feb. 18, 2004), http://www.nbcnews.com/id/4304261/#.ukgjurzy7li. this shift is reflective of the shift in the way younger generations view race. 64 the challenge of teaching the next generation of civil rights lawyers vol. 4:1 america eats thousands.”66 race is becoming less significant in their personal lives, but they have become even further removed from awareness of their own racial privilege. but progress in students’ personal lives does not mean that we all live in an environment void of racial significance. many racial minorities do not have opportunities for interracial interactions on a regular, personal basis.67 their lives stand in vivid contrast to the post-racial narrative. law students often have difficulty reconciling their belief that overt racial discrimination is a thing of the past with the institutional and structural racism that results in racial disparities in many aspects of society. they see these racial disparities, yet they see no racial significance. in a recent study of millennials’ views on race,68 the majority of participants expressed the belief that race still shapes american life.69 however, the study found significant racial differences in how this group thinks and talks about race.70 specifically, the study determined that “young people of color are more likely to independently bring up race, resources and access to them, while white millennials are less likely” to make those connections.71 black college students in the study indicated that they thought white people were often trying to get them to “stop whining” about race.72 many participants of all races firmly believed that class is more important than race in predicting individual outcomes,73 and some expressed the belief that “the fact that the upper class consists overwhelmingly of white people, while people of color are greatly overrepresented in the ranks of the poor, is either an historical accident or currently irrelevant.”74 finally, many in the study emphasized the importance of individual effort in changing the racial disparities they identified, and some white participants blamed individual behavior and “cultural factors” for the racial disparities.75 a. teaching racial narratives narratives have the ability to create understanding between the lawyer and client.76 the understanding that comes with narratives is “based on identification with character and story that forces the listener to put aside their own points of identity. one experiences the narrative by getting caught up in the story.”77 but, many of my law students seem unable to achieve this understanding because they 66 touré, inside the racist mind, time ideas (apr. 19, 2012) http://ideas.time.com/2012/04/19/inside-theracist-mind/ (last visited dec. 2, 2014). 67 see john logan, separate and unequal: the neighborhood gap for blacks, hispanics and asians in metropolitan america, us2010 project (july 2011), available at http://www.s4.brown.edu/us2010/data/report/report0727.pdf. 68 for this study, millenials were considered to be people between the ages of 18 and 25. 69 dom apollon, don’t call them post-racial: millenials say race matters to them, colorlines, (june 2011), http://colorlines.com/archives/2011/06/youth_and_race_focus_group_main.html. 70 id. 71 id. 72 id. 73 id. 74 id. 75 id. for example, when speaking of a latina colleague, one participant said: she was saying, basically, she wants to move in with her boyfriend, and her mom is going crazy, she is saying, “you are doing the typical mexican thing where you are gonna move in and get married, and your husband is gonna have to pay, and you are, like, just gonna pop out a bunch of kids,” and, like, she was telling me that that is kind of, like, what somewhat like mexican ethic. so if you are gonna have, like, people who do that, they are not gonna make as much money, they are just gonna keep, you know, the income inequality is just gonna keep going. 76 see leslie espinoza garvey, the race card: dealing with domestic violence in the courts, 11 am. u. j. gender soc. pol’y & l. 287, 302 (2003). 77 id. 2013 columbia journal of race and law 65 cannot put aside their own views about race and become absorbed in the client’s racial narrative. the students’ beliefs, conscious or subconscious, in the fundamental fairness of our government institutions and the post-racial perspective of all of the players in the legal story, hampered their ability to understand the problems facing their clients and provide the representation their clients deserved. each year, i spend a significant amount of class time trying to prepare my students to recognize some of the cultural biases that they may bring to their representation and think about how those biases may impact their relationships with their clients. i do not single out race, but discuss it along with other issues of cultural difference the students might encounter in their cases. i have them read excerpts from “the five habits: building cross-cultural competence in lawyers” by susan bryant.78 i engage the students in a general discussion of the article and how they think it may impact or inform their work in the clinic. we also engage in several exercises designed to help them begin to understand and use the habits from bryant’s articles. they also read portions of “law as microagressions” by peggy cooper davis79 and lucie white’s “subordination, rhetorical survival skills, and sunday shoes: notes on the hearing of mrs. g.”80 and discuss the way that race, class, and gender issues played into the examples discussed in the articles. finally, we have discussions about the importance of challenging our own biases based on culture. the students say all of the right things during class discussions about lawyering across cultural differences. but when it comes to their actual cases, this preparation often falls apart. in one case, the clinic is co-counsel to a class of plaintiffs in a school desegregation suit that was filed in the 1960s. the lawsuit seeks to enforce a court order mandating that this southern school district desegregate its schools. today, the federal court has not declared the school district “unitary”81 because it continues to operate racially–identifiable schools; there are significant resource disparities between the “white schools” and the “black schools,” and substantial differences in the educational opportunities provided to the black and white children. while working on the case, some of the students and i traveled to the school district to meet with members of the plaintiff class and tour the schools. to me, the role that racial discrimination continued to play in depriving our clients of their constitutional rights was unmistakable. the history of de jure segregation in the school system was well–documented. the continuing disparities between the “black schools” and “white schools” were stark. and the black community’s stories about the unequal resources provided to their children compared to the opportunities available to white children were heartbreaking. yet, many of my students did not believe that race was a continuing factor in the disparate treatment of black and white children. my students believed there was no intentional racial discrimination by those currently running the school system, both as an evidentiary matter and according to their personal opinions.82 the continuing disparities between the “black schools” and “white schools” were clear and stark. additionally, the black community’s stories about the inequality in the resources provided to their 78 8 clinical l. rev. 33 (2001). 79 98 yale l.j. 1559 (1989). 80 38 buff. l. rev. 1 (1990). 81 “unitary status” is a term used in school desegregation cases after a judge has declared that a school is no longer operating and has eliminated vestiges of a dual or segregated school system “root and branch.” green v. cnty. sch. bd. of new kent cnty., va., 391 u.s. 430, 438, 441 (1968). 82 the students were aware that a showing of intentional discrimination was not required in the case. rather, the school district bore the burden of proof to show that racial disparities are not proximately caused by prior de jure discrimination and segregation. see freeman v. pitts, 503 u.s. 467, 475–77 (1992) (suggesting current racial segregation can be assumed to be proximately caused by the school district’s previous de jure segregation). 66 the challenge of teaching the next generation of civil rights lawyers vol. 4:1 children compared to those available to white children were heartbreaking and provided further evidence of discrimination, if only anecdotal. no member of the current school board had used a racial slur or referred to the schools by the race of the students. no member of the current school board had stated that black children should not attend school with white children. in fact, there was one black member of the board, and all of the decisions board were facially race-neutral, having been made while the district was under a court order. although the students interacted well with our clients and never shared their doubts with them, the students’ skepticism came out in our supervision meetings. my students shared my outrage at the poor conditions in the predominantly black schools. they were saddened by the thought that those students did not have the same opportunities for academic and life success that they themselves had enjoyed. yet, in discussing the causes of these disparities the law students focused on what the plaintiffs or community could do to improve the situation. they told me that black residents should speak up and be more vocal about their needs, be more active in the work of the school board, and stop dwelling on the past and focus on the present. the students were focused on getting a particular outcome for the clients, but not on the root cause of the disparity the clients faced or how to prevent a recurrence of the inequality. in the end, these students believed that if parents in the black community followed the rules like other parents in the school district, the resources would eventually be distributed fairly. after all, they said, no one harbored any ill will towards those families. they also repeated their concerns that although there were troubling disparities between the clearly-identifiable “black schools” and the clearly identifiable “white schools,” there was no “evidence” that the disparities continued to be racially motivated. the students rationalized the racial disparities they saw. in multiple supervision meetings, i explored the students’ conclusions that racial discrimination was not a continuing problem facing their clients. i asked the students what role they saw race discrimination playing in the problems their clients faced and in their own representations of clients. the students assumed that the institutions with which the parents and families interacted were fundamentally fair, free of the taint of racial discrimination. they saw no reason to question that assumption. when i asked them about the racial disparities we saw during our visit and the documented history of racial discrimination, the students recognized that the black families lacked an effective voice in the distribution of educational resources, but attributed that to a lack of participation, differences in socioeconomic class, and educational background between the white and black families in the county. they sympathized with the school board’s need to set budget priorities in these tough economic times, but never questioned the board’s racial neutrality in setting those priorities. the students clearly recognized that something was at work in creating the disparities; they just did not see racial discrimination as a factor. additionally, when i encouraged them to think about ways to address the clients’ beliefs that race was an issue in the case, the students voiced their reluctance to raise race discrimination claims and expressed concern about how the other characters in the case would respond to law students claiming that racial discrimination continued to be at play. i struggled with these students’ responses, as i could not envision a case with a more obvious race component – the history, the facts, and the law all explicitly dealt with race. yet, the students instead focused primarily on the lack of proof of explicit racial animus on the part of the current parties. although i began supervision sessions with the hopes of being non-directive, eventually, i became instructive and explained the central role that race played in the clients’ situation and why removing race from the discussion would never achieve justice for their clients. i also played a central role in crafting an advocacy plan that addressed some of the underlying racial issues. 2013 columbia journal of race and law 67 if the law students were outraged at the quality of education the black students were receiving and engaged in representing the clients to get more educational resources, what difference does it make that they did not buy into the centrality of race in the clients’ legal problems? in the end, my law students’ post-racialism affected their representation in the school desegregation case and the employment discrimination case discussed earlier. during the semester, i taught the students about client-centered lawyering. we read and explored articles about cross-cultural lawyering. during class discussions, they all appeared to understand and embrace the importance of these approaches in helping their clients address their legal issues. the students were attentive to crosscultural issues and client-centeredness in their clinic cases that raised issues of gender, religion, age, and disability discrimination. the challenges these students faced in their representation were not about rejecting the importance of cross-cultural lawyering or rejecting the belief that society continues to discriminate against vulnerable populations. rather, the employment of a post-racial analysis, even when employed by students conscious of continuing inequalities and the need to be cross-cultural and clientcentered advocates, inhibited their ability to effectively develop a trusting and effective relationship with clients because of the students’ reluctance to acknowledge the role of racial discrimination in the inequalities they saw. that post-racial analysis also erects barriers to effective representation by limiting students’ thoughts about potential legal options and courses of action. here, the students were fixated on approaches to the clients’ legal problems that did not involve challenging the racial discrimination at issue. they did not see discrimination; they could not see beyond their own lived experiences, substituting their race-neutral view of the world for the clients’ narratives. to be clear, there is nothing wrong with race-neutral theories. but, the students’ insistence on viewing the facts in these cases as race-neutral masked the raced nature of the problems facing our clients, curtailing the range of options the students considered as they tried to make sense of the clients’ stories and goals through the lens of their own post-racial perspective. the students saw the marginalization of people of color, but could not see race as being responsible. to these students, the ambiguity in the facts proved the lack of any racial animus. this is not at all surprising, as we tend to interpret ambiguous evidence in a way that is consistent with our own worldview.83 they ignored the nuanced ways in which race impacted the issues they addressed and the lives of their clients. faced with a history of discrimination, they chose to understand the history merely as past background and not explore its relationship to the current challenges facing their clients. in denying the relevance of race, the students allowed white privilege to persist and racism to continue unchallenged, ultimately doing a disservice both to the clients and the community. finally, the students’ post-racial orientation inhibited the development of a positive lawyer-client relationship. in the end, the burden was placed upon the clients to prove the relevance of race and to thus overcome the students’ post-racial orientation. iv. post-racialism and cross-cultural lawyering a. the significance of culture in lawyering “culture is the logic by which we give order to the world.”84 culture has been defined as “the differences between individuals that are related to different backgrounds, value systems, religions, classes, ethnicities, races, or other factors that contribute to a 83 see selmi, supra note 11, at 852. 84 bryant, supra note 78, at 40. 68 the challenge of teaching the next generation of civil rights lawyers vol. 4:1 person’s experience of the world.”85 we all attach meaning to what we hear and observe based on our own cultural perspective. yet, people who are members of a dominant culture – those who subscribe to the established and generally accepted social customs and norms – often hesitate to identify themselves as cultural beings.86 the lack of cultural awareness leads to a reluctance to see how their culture shapes their attitudes, biases, and beliefs, impacting how they view and interact with the world. the post-racial lens through which many law students view the world is a dominant social and legal culture. it is one aspect of the logic through which they give order to the world. my students’ views of the world shape not only their own experiences, but also how they view and analyze the experiences of others. unfortunately, although many law students are able to recognize their own racial or ethnic culture, even if they question its relevance to their role as lawyers, they often ignore the fact that they are strongly influenced by larger societal culture. moreover, they forget that the legal system has its own culture; with additional norms that give meaning to what law students see, hear, and do.87 a law student may recognize legal culture as a series of professional norms and procedures, forgetting that legal culture also includes an overarching attitude and approach to the world. it is critical for students to develop a cultural self-awareness and account for the impact this cultural perspective may have on their lawyerclient relationships. like every other member of our society, lawyers and law students attach meaning to the words, actions, and behaviors of others based on their own cultural perspective.88 their experience as dominant members of “post-racial society” and the legal training that law students receive converge to mask cultural differences and the relative privilege they enjoy.89 these attendant cultural attitudes and beliefs can create expectations that allow law students to attach significance to a client’s experience based on that law student’s cultural background, or prompt the law student to discount the significance of the client’s experience based on the law student’s adoption of certain cultural norms and beliefs. michelle jacobs discusses the impact “expectancies” have on the lawyer-client relationship.90 according to professor jacobs, expectancy is “a belief, hypothesis, theory, assumption or accessible construct that is brought from a previous experience and is used either consciously or unconsciously as a basis for interpreting or generating behavior in the present context.”91 in the context of legal representation, a law student’s own cultural background can create expectancies, shaping how the student views the client’s problems, how the student frames the legal issues, and the potential legal strategies the law student may pursue.92 in my clinical examples discussed earlier, the students’ “expectancies” in the context of their own post-racial culture hampered their ability to acknowledge and address the role that race played in the controversies their clients faced. their cultural perspective prompted the students to substitute their own narrative, erasing the significance of race and racial discrimination from the story, for the narrative the client told and lived. and although those students had learned about and discussed the importance of 85 antoinette sedillo lopez, making and breaking habits: teaching (and learning) cultural context, self-awareness, and intercultural communication through case supervision in a client-service legal clinic, 28 wash. u. j. l. & pol’y 37, 39 (2008). 86 see carwina weng, multicultural lawyering: teaching psychology to develop cultural self-awareness, 11 clinical l. rev. 369, 398 (2005). 87 naomi mezey, law as culture, 13 yale j.l. & human. 35, 45–57 (2001). 88 michelle s. jacobs, people from the footnotes: the missing element in client-centered counseling, 27 golden gate u. l. rev. 345, 377 (1997). 89 weng, supra note 86, at 398. 90 jacobs, supra note 88. 91 id. at 381. 92 id. 2013 columbia journal of race and law 69 developing their ability to represent clients across cultures, for them those cross-cultural lawyering skills did not readily translate into the need to challenge their own underlying cultural assumptions about the significance of race. b. cross-cultural lawyering and the development of lawyering skills many scholars have written about habits and behaviors that impede communications between a lawyer and client from different cultures and offered thoughts on how to help law students increase their awareness of cultural differences and the impact those differences may have on representation.93 lessons of cross-cultural lawyering, or cultural competence, encourage students to learn about the client’s culture, focusing on the ways that differences between the client’s culture and the student’s culture can impact and impede the representation.94 this client-focused information includes cultural views on eye contact, physical space, and reaction to authority figures.95 with the current approach to cross-cultural lawyering, the goal is to make consideration of the lawyer’s and client’s culture a normal part of the lawyer’s thought process. cultural self-awareness is a key element of cross-cultural lawyering, helping lawyers to “recognize that as cultural beings, we may hold attitudes and beliefs that can detrimentally influence our perceptions of and interactions with individuals who are ethnically and racially different from ourselves.”96 not only must the student make a habit of identifying and exploring his or her client’s culture, the student must learn about himself or herself as a cultural being.97 the client’s and lawyer’s individual cultures are seen as central, and the lawyer is encouraged to think about how those cultures may impact the representation.98 this approach to cross-cultural lawyering has been powerful in helping students think about the ways in which culture can impact their interactions with their clients and impede effective representation. but, the focus on the process and dynamics between the lawyer and client does not go far enough to deal with post-racialism and the subtle, often invisible, forms of racism at play in discrimination cases. and while it may help some students notice racial differences, this approach requires adjustment to adequately address the culture of race-neutrality. cross-cultural lawyering asks us to view the world from our client’s perspective. why isn’t encouraging students to identify with their client enough? because students simply cannot identify with their client if they think race is not important or that this country does not still struggle with racism. students may acknowledge that their client is a racial minority, but they cannot grasp its meaning for their client because the students misunderstand the nature of racism and the impact that racial differences have on daily life. moreover, a skilled cross-cultural lawyer must not only acknowledge her client’s race, but also the way her own attitude about race and racism may impact her 93 see, e.g., lopez, supra note 85, at 39; weng, supra note 86; paul r. tremblay, interviewing and counseling across cultures: heuristics and biases, 9 clinical l. rev. 373 (2002); bryant, supra note 78; jacobs, supra note 88. some of the articles make mention of the importance of acknowledging sameness and not falling into a trap of making assumptions of shared experience. see e.g., alexis anderson, lynn barenberg & carwina weng, challenges of “sameness”: pitfalls and benefits to assumed connections in lawyering, 18 clinical l. rev. 339, (2012) (discussing the dangers of assumed similarity and the effects on law students’ interactions with clinic clients). 94 bryant, supra note 78, at 39–41. 95 weng, supra note 86, at 369. 96 weng, supra note 86, at 372; see also jacobs, supra note 88, at 405; bill ong hing, raising personal identification issues of class, race, ethnicity, gender, sexual orientation, physical disability, and age in lawyering courses, 45 stan. l. rev. 1807, 1810 (1993) (arguing that increased knowledge of “personal identification issues” improves an attorney’s ability to effectively communicate with her client). 97 bryant, supra note 78. 98 id. 70 the challenge of teaching the next generation of civil rights lawyers vol. 4:1 interactions with her client, her examination of the legal and factual issues presented in the case, the course of action selected, and the attribution of blame. many of our students do not perceive their beliefs on race as cultural, but rather as a reflection of a universal truth. they are not aware of the impact that this cultural perception has on the way they approach the world or the way they approach their client’s problems. but, if my students are to effectively work for justice and represent their clients, i need to challenge that lack of awareness of the racial realities of the world they live and work in. c. the need for a more aggressive approach to cross-cultural lawyering cross-cultural lawyering rightfully encourages students to acknowledge their culture, but never encourages them to reject or give up any aspect of that culture. but, to use cross-cultural lawyering in a way that promotes justice, we need to not only have our students acknowledge their blinders, but, in some cases, to take those blinders off. our current approach to cross-cultural lawyering is a nonconfrontational way to challenge a student’s prejudices and biases, neutralizing those biases in a way that may make it easier for students to acknowledge them. rather than making students feel that their perspective is wrong, we teach them a set of skills and tools that can be used to improve their interactions with clients.99 teaching awareness of cultural differences and attendant skills is not enough in this purportedly post-racial world. the challenges of civil rights lawyering in a “post-racial” society are not just issues of communicating across cultural barriers, but getting students to acknowledge, address, and ultimately move beyond their cultural assumptions about race-neutrality. in order for us to get our students to confront race issues in their cases and after they leave the clinic, we must be willing to challenge their post-racial beliefs and the way in which these beliefs help to perpetuate racism, inequality, and whiteprivilege. although questioning a student’s cultural beliefs may be frowned on by some in the legal academy, challenging their post-racialism is consistent with the broader goals of clinical legal education and with the goals of my civil rights clinic. promoting justice is central to clinical legal education. a fundamental goal of clinical legal education is “to provide professional education in the interests of justice”100 and “everything we do as law teachers suggests something about justice.”101 indeed, the report of the american bar association’s task force on law schools and the profession, generally referred to as the maccrate report, identified striving to promote justice, fairness, and morality as one of the fundamental values of the legal profession.102 law school clinical programs remain the primary source of education when it comes to the social responsibility of lawyers.103 99 id. at 63. 100 stephen wizner, the law school clinic: legal education in the interest of justice, 70 fordham l. rev. 1929, 1935 (2002). 101 see aiken, supra note 62, at 3. 102 am. bar ass’n. section of legal educ. and admissions to the bar, legal education and professional development an educational continuum (report of the task force on law schools and the profession: narrowing the gap) at 236 (1992). 103 see wizner, supra note 100, at 1929 (arguing the law school clinic is the primary place for students to learn how to be ethical and socially responsible lawyers); new york state judicial institute, partners in justice: a colloquium on developing collaborations among courts, law school clinical programs and the practicing bar, (may 2005). available at courts.state.ny.us/ip/partnersinjustice/index.shtml. see also introduction to clinical education, (2005), at 9-12 available at courts.state.ny.us/ip/partnersinjustice/clinical-legal-education.pdf. 2013 columbia journal of race and law 71 while the goals of clinical legal education have broadened, social justice remains central to many clinical programs, including mine.104 one of my primary teaching goals is to inspire my students to seek more justice in society and to leave my clinic “justice ready.”105 jane aiken writes that clinical education helps to get students justice ready; to be aware that everything has either a just or unjust effect, to be able to identify injustice when they see it, and to develop the skills and critical and strategic thinking necessary to remedy injustice.106 through clinical education, we can deeply impact how students view social problems and craft solutions.107 d. towards immersion lawyering the standard battery of clinical teaching approaches does not go far enough to accomplish the many goals of clinical legal education when handling claims of racial discrimination. we cannot be nondirective in discussions about race or our supervision sessions when students approach their work from a post-racial perspective. exposing them to situations that we believe raises racial issues and then asking whether race plays any role in the interactions or outcomes is not enough. nor is it enough to show them that there are racial disparities because they may not make the leap to identifying racism. clinical professors need to bring students deeper into the causes of the disparities and make the connection to ongoing racism explicit.108 anthony alfieri has commented that training the next generation of advocates to be thoughtful and effective civil rights and poverty lawyers requires that they learn a new analytic framework, one that stresses the importance of context and abandoning neutrality.109 while professor alfieri offered his analysis in the context of teaching law students how to counsel marginalized clients to “uncover” their “difference-based identities” to advance a greater societal interest,110 the lessons apply equally when training “post-racial” generation civil rights and social justice lawyers. here, students must also come to terms with the workings of systemic and institutional racism and question its “neutrality” in the face of subtle, yet equally harmful racial discrimination.111 to reinforce contextual lawyering, students must first immerse themselves in their racially diverse clients’ lives. contextual lawyering incorporates client-specific variables, such as race, in addition to broader social considerations.112 in the past, i had taught cross-cultural lawyering skills and then had 104 although clinical legal education often focuses on social justice, it does not have to be a goal of every clinical program. still, many “transactional” clinical programs also teach and advance social justice by transcending the representation of their individual client to achieve a larger societal impact. see praveen kosuri, “impact” in 3d maximizing impact through transactional clinics, 18 clinical law rev. 1 (2011) (arguing that transactional clinics can do impact work and teachers of such clinics ought to expand their understanding of what impact work is). 105 jane h. aiken, the clinical mission of justice readiness, 32 b.c. j.l. & soc. just. 231 (2012). 106 id. at 231–32. 107 see id. at 233 (arguing that clinical faculty is well suited to teach students to incorporate justice as a major component of their practice because clinics are all about how one ought to practice the law). 108 helping to bring law students out of their post-racial malaise should not fall solely on clinical legal educators. just as legal education is broadly exploring ways to integrate skills teaching into all three years of law school, law professors must explore ways to challenge post-racialism throughout the law school curriculum. limiting discussions of the continuing importance of race and the realities of racial discrimination to clinical education will fall short because not every law student has an opportunity to participate in a clinical program and issues of race are relevant to every law school course and should be raised in context. 109 see anthony v. alfieri, (un)covering identity in civil rights and poverty law, 121 harv. l. rev. 805, 836 (2008) (exploring four theoretical frameworks to integrate a critical theory of identity and politics into the practice of law). 110 see id. at 808. 111 see id. at 837 (discussing the need to challenge neutrality when counseling clients to “uncover”). 112 id. at 836. 72 the challenge of teaching the next generation of civil rights lawyers vol. 4:1 discussed specific bias issues – religious, gender, race, class – as they arose in our cases. to meet the goals of my clinic, i need to implement immersion lawyering, through which my students will delve into the nature of racial discrimination. additionally, i need to more deliberately teach students about the history, social science, and context of racial discrimination, themes that are foreign to many of them. these themes reinforce the notion of a racially-divided america, in which our clients live. by exposing students to this reality, i help them move away from their preconceived racial notions and better understand our clients’ experiences, thus allowing for more effective lawyering. students should not change any part of their clients’ narrative to placate those uncomfortable with discussions about race, nor to achieve social cohesion. v. conclusion client-centered, culturally competent lawyering cannot coexist with the dominant culture’s view of race as irrelevant. students need to acknowledge the relationship of race to power and privilege, and the influence that their racial attitudes can have on the attorney-client relationship.113 racism is real, and clients cannot be effectively represented, as envisioned by the client-centered model, if the client’s attorney does not recognize this reality. to represent racial and ethnic minorities, law students must become familiar with the realities of their clients and the role of race in the world. they must abandon their view of the world as color-blind and “neutral” and acknowledge that the “post-racial” narrative is still a goal, not a reality. this requires a fundamental reassessment of their perspective, forcing them to grapple with the complexities of race. helping students challenge their beliefs in the existence of a post-racial society need not require them to abandon their efforts to realize this goal. the students must understand that moving closer to their ideal post-racial society requires an awareness of race and racism, even in its more subtle forms.114 they need to focus on race and be more attentive to racial inequalities. not doing so may only worsen the problems facing society and their clients. if the relationship between lawyers and clients replicate the oppression imposed on clients by society, we cannot effectively achieve any measure of social justice through lawyering.115 113 see aiken, supra note 105. 114 see selmi, supra note 11, at 855. 115 see lauren carasik, justice in the balance: an evaluation of one clinic’s ability to harmonize teaching practical skills, ethics and professionalism with a social justice mission, 16 s. cal. rev. l. & soc. just. 23, 25 (2006). 2-jabareen post author approval 2013 columbia journal of race and law 23 the politics of equality: the limits of collective rights litigation and the case of the palestinian-arab minority in israel dr. yousef t. jabareen* human and civil rights organizations have long used litigation in an attempt to advance a particular cause, to bolster a certain right, or to bring about social change. a prominent example is strategic litigation filed on behalf of minority groups–including national and indigenous minorities. such cases typically seek remedies from the government or public institutions due to discrimination or neglect experienced by minorities, or stemming from limitations on their ability to express or enjoy their culture and practices. in many cases, however, litigation fails or only partially succeeds in creating the kind of sustainable, widespread, and group-based change that the petitioners seek. focusing on israel and the palestinian-arab minority, which constitutes nearly one-fifth of the country's population, this article explores the limitations and shortcomings of litigation as a strategy for obtaining collective rights. the article examines three different kinds of collective rights that palestinian-arab petitioners have attempted to achieve through legal action in israel: the right to political representation (in decision-making bodies); linguistic rights (in public accommodation); and equitable (group-based) allocation of public resources. the significance of these rights for national minorities is explored, along with the specifics of each of the cases highlighted and their outcomes. this article demonstrates that while the outcome of each legal case was a ‘success’–on a technical level– the judgments failed to achieve the substantive equality and group-based rights that the petitioners sought. worse still, some of the judgments actually may have led to setbacks. accordingly, this article argues that litigation has thus far been an insufficient tool for protecting the collective rights of the palestinian-arab minority, as the courts have failed to draft meaningful and sustainable frameworks for action and enforcement into their judgments. the article concludes by suggesting that given the challenges and political and social constraints faced by national minorities in legal and other public spheres, the law is dependent on the will of the courts. thus, the courts must view their role more broadly and take a more expansive–and perhaps even activist–approach in rendering its rulings. i. introduction…………………………………………………………… 24 ii. the need for collective rights for minority groups. 26                                                                                                                           * dr. yousef t. jabareen is a lecturer in human rights at the university of haifa and tel-hai college, and the founding director of dirasat, arab center for law and policy, based in nazareth. 24 the politics of equality vol. 4:1 iii. background on palestinian arabs in israel ……………… 30 iv. utilizing the law as a tool for the recognition of collective rights in israel ……………………………………… 33 a. representation in decision-making bodies ……………………….. 34 1. normative framework ………………………………………. 34 2. case study: legal action regarding representation in the israel land council ………………………………………….. 36 3. case study: legal action regarding representation on the planning and building commission ………………………... 39 b. cultural rights: linguistic case …………………………………….. 39 1. normative framework ………………………………………. 39 2. case study: legal action regarding signposting …………. 41 3. case study: legal action regarding language on road signs …………………………………………………………… 46 c. allocation of material resources …………………………………….. 47 1. normative framework ………………………………………. 47 2. case study: legal action regarding allocations for education …………………………………………………….. 48 3. case study: legal action regarding allocation for christian and muslim cemeteries ……………………………………… 52 v. conclusion………………………………………………………………... 53 i. introduction human and civil rights organizations have long used litigation to advance a particular cause, to bolster a certain right, or to bring about social change. a prominent example is strategic litigation filed on behalf of minority groups–including national and indigenous minorities. such cases typically seek remedies from the government or public institutions due to various forms of discrimination or neglect experienced by minorities, or stemming from limitations on their ability to express or enjoy their culture and practices. in many cases, however, litigation fails or only partially succeeds in creating the kind of sustainable, widespread, and group-based change that the petitioners seek. 2013 columbia journal of race and law 25 a number of factors can account for this lack of success. rulings are often narrow in scope and application or lack sufficiently stringent penalties, which in turn render them ineffective deterrents against future violations of minority rights. additionally, the judges are usually members of those in power within the societies they are asked to scrutinize, and thus may be unable to sympathize with the merits of the petitioners’ claims, or simply reluctant to change the prevailing political order. furthermore, even when positive judgments with enforcement mechanisms are handed down, implementation is still dependent on the goodwill of political functionaries.1 focusing on the palestinian-arab minority in israel, this article will explore the limitations and shortcomings of litigation as a strategy for the realization of collective rights. nearly 20% of citizens in israel are palestinian arabs who are indigenous to the region.2 this article will examine three different kinds of collective rights that palestinian-arab petitioners in israel have attempted to achieve through legal action: the right to political representation (in decision-making bodies); linguistic rights (in public accommodation); and equitable (group-based) allocation of public resources. the significance of these rights for national minorities will be explored, along with the specifics of each of the cases highlighted and their outcomes. this article will demonstrate that while the outcome of each legal case–on a technical level–was a “success”, the judgments failed to achieve the substantive equality and group-based rights that the petitioners sought. worse still, some of the judgments actually may have led to setbacks. in each of the cases below, legal tools were employed and exhausted by and on behalf of the palestinian-arab minority, after other advocacy strategies failed to convince the relevant political functionaries to make the desired social change. indeed, the prevailing social and political forces impeded positive change due to their lack of will and through the use of poor enforcement mechanisms. thus, the outcomes were undesirable and the goal of reinforcing collective rights was unrealized. accordingly, this article argues that litigation in israeli courts, thus far, has proven to be an insufficient tool for securing the palestinian-arab minority’s cultural and political rights in a substantive and sustainable way, particularly in cases where collective, rather than individual, rights are at stake. this article will conclude by arguing that given the political and social challenges and constraints faced by national minorities in legal and other public spheres, the law is dependent on the will of the courts. thus far, even when the israeli courts have ruled in favor of palestinian-arab rights, the wording of the right supposedly defined or declared in the judgment was overly vague and lacked “teeth”, or a framework for enforcement, thereby leaving room for the state and its actors to evade the spirit of the rulings. therefore, this article will argue that the courts must view their role more broadly and take a more expansive–and perhaps even activist–approach in rendering their rulings. only such a change will ensure that the law will realize its potential for safeguarding the rights of minorities and promoting social justice. in a system in which majority groups are overrepresented among political functionaries, and the majority either overtly or covertly seeks to deprive minority groups of their individual and collective rights, it is the role of the law, especially via the courts, to perform its counter-majoritarian function and protect the status and rights of minorities.                                                                                                                           1 this issue is compounded by the fact that minority groups generally lack adequate political power to ensure full implementation of the remedies rewarded once legal proceedings have concluded. 2 ilan pappé, the forgotten palestinians: a history of the palestinians in israel 6 (2011) [hereinafter forgotten palestinians]; as’ad ghanem, state and minority in israel: the case of the ethnic state and the predicament of its minority, 21 ethnic & racial stud. 428, 430 (1998). 26 the politics of equality vol. 4:1 ii. the need for collective rights for minority groups before examining the litigation pursued by the palestinian-arab minority in israel in an attempt to secure their collective rights, the article first will outline briefly the impetus for, and evolution of, individual and collective minority rights. in most societies, minorities tend to be at a distinct disadvantage in relation to majority groups. indeed, exceptions notwithstanding, the socio-political status of the majority is almost always superior to that of the minority by virtue of its position as the dominant group in society.3 consequently, majorities can–and often do–secure favorable access to the spectrum of national resources to the detriment of minorities. furthermore, minority groups often are exposed to significant pressures to assimilate and therefore face the risk of cultural erosion and loss of their unique identities.4 substantive national minorities5 and indigenous minorities, whose statuses as minorities almost without exception have been established against the groups’ will via war and/or colonization, generally seek to maintain their unique group-based identities. in addition to equality on the individual level–and freedom from discrimination as members of a minority group–they seek group-differentiated rights in order to preserve their culture and identity. international law addressing minority rights establishes that national minorities, particularly indigenous minorities, who are among the most maligned and disadvantaged of all minority groups globally, require special protections.6 therefore, a number of instruments have been adopted to address this reality, namely, the 1992 united nations declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities (“1992 un declaration”) and the 2007 united nations declaration on the rights of indigenous peoples (“2007 un declaration” or the “2007 declaration on indigenous rights”).7 instruments of international law are increasingly drafted with the intention of responding to claims brought forth by minority groups generally, and to specifically address their need for collective rights. collective rights, which can be read into earlier instruments of international law, are included in both the 1992 and the 2007 un declarations, but they are particularly pronounced in the 2007 indigenous declaration.8 the specific rights guaranteed to the group depend on the nature of the group,                                                                                                                           3 the experience in south africa is a prime exception to this assertion, where the (white) minority was able to dominate the african majority and other minorities (“coloured”, indian, etc.) by virtue of its wealth and military. the same scenario has been experienced in many other postcolonial nations and in countries in which economic and military power are correlated with being a member of a particular religious or linguistic group, which comprises the minority of the population, such as: the white residents of jamaica, the spanish colonials of mexico, and more. nonetheless, the far more widespread societal dynamic is that described in the text here. see generally, ted r. gurr, peoples versus states: minorities at risk in the new century (2000). 4 see generally will kymlicka, multicultural citizenship: a liberal theory of minority rights 12 (1995) [hereinafter multicultural citizenship]; will kymlicka, multicultural odysseys (2007) (exploring intergovernmental organizations’ establishment of multiculturalism policies). 5 the term “substantive minority” refers to minority groups comprising at least a small percentage, or more, of a country’s population. see generally yousef t. jabareen, constitution building and equality in deeply-divided societies: the case of the palestinian-arab minority in israel, 26 wis. int’l l.j. 345 (2008) (arguing for participatory equality for ethnic and racial minorities). 6 see s. james anaya, indigenous peoples in international law 95-215 (2d ed. 2004). 7 not all minority groups aim to attain the same kind of rights. immigrant groups, whose minority status can be assumed to derive from an active choice on the part of the individual to join a new society, are expected to integrate into their chosen society and adopt the norms of that country. the experience of national minorities, however, is different. the term, “national minority” refers to ethnic, religious, or racial groups that, either by virtue of their indigeneity to the place or through immigration, constitute a minority percentage of the population of a state. 8 united nations declaration on the rights of indigenous peoples, g.a. res. 61/295, annex, u.n. doc. a/res/61/295 (sept. 13, 2007), available at http://www2.ohchr.org/english/issues/indigenous/declaration.htm. 2013 columbia journal of race and law 27 but irrespective of the particular rights, they are conferred upon the minority due to its uniqueness as a group.9 a basic tenet established early in the 1992 un declaration is that members of minority groups must be able to exercise their rights “individually as well as in community with other members of their group.”10 the wording of this clause suggests a differentiation between the individual’s right to equality, regardless of membership in any religious, ethnic, linguistic, or other national minority, and the minority group’s right, as a whole, to what is essential for the maintenance of the collective. the codification of this concept paved the way, at least in part, for the more explicit iteration of collective rights contained in the 2007 un declaration.11 the types of collective rights stipulated therein range from property ownership and enjoyment rights, to language rights, to various manners of cultural expression (including the preservation of religious, agricultural, and medicinal practices), to self-administration and even autonomy over certain spheres of life, such as education. finally, it also includes a requirement that the government consult with the relevant group on issues which are liable to impact them directly.12 building on this foundation, the 2007 declaration on indigenous rights calls on states to refrain from taking any measures that would dispossess indigenous peoples of their lands or resources, force their assimilation, or otherwise deprive them of their unique cultures.13 importantly, and in line with these instruments, the realization of collective rights requires applying special measures on a permanent or semi-permanent basis in order to assure appropriate protection of each minority group’s unique and usually fragile identity and interests.14                                                                                                                           9 see multicultural citizenship, supra note 4, at 12. see generally, will kymlicka, politics in the vernacular: nationalism, multiculturalism, and citizenship 83-84 (2001) [hereinafter politics in the vernacular] (arguing that special measures for minority groups generally provide them with legal protection, both on individual and collective levels, with the aim of achieving equality with majority groups. minority groups are in particular need of these protections due to their members being the frequent target of discriminatory actions and pressure to assimilate). 10 un declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities, g.a. res. 47/135, at art. 3(1), u.n. doc. a/res/47/135 (dec. 18 1992). 11 see, e.g., preamble of the 2007 un declaration on the rights of indigenous peoples, g.a. res. 61/295, u.n. doc. a/res/61/295 at 3 (sept. 13, 2007) available at http://www.un.org/esa/socdev/unpfii/documents/drips_en.pdf (retrieved 5 apr 2013) [hereinafter the 2007 declaration on indigenous rights] (stating in relevant part: “recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples.”). 12 for instance, article 13 of the 2007 declaration on indigenous rights stipulates a right on the part of indigenous peoples and requires that states enable them to “designate and retain their own names for communities, places and persons.” id. at art. 13(1). article 14 of the declaration lays out a requirement that indigenous groups be allowed to control and steer their own education systems. id. at art. 14(1). article 15 emphasizes the importance that their histories and collective memories be “appropriately reflected in education and public information.” id. at art. 15(1). article 18 guarantees indigenous peoples the right to “participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision making institutions.” id. at art. 18. regarding traditional medicinal practices, and their connection to the land and flora, article 24 states: “indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals.” id. at art. 24(1). article 26 stipulates not only the right of the indigenous peoples to maintain use of their land, but it also calls on states to recognize their systems of determining ownership. id., at art. 26. 13 article 8 of the 2007 declaration on indigenous rights reads: “indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.” id. at art. 8(1). 14 jabareen, supra note 5. 28 the politics of equality vol. 4:1 it is important to note that collective rights are not to come at the expense of the individual rights to which each citizen is entitled, regardless of group affiliation.15 in other words, collective rights must not penalize or restrict the individual freedoms and rights of a member of the minority group. by the same token, the realization of collective rights is often necessary in order to guarantee equality on the individual level and between majority and minority groups. minority groups cannot realize their labor and social rights, for example, without living in an environment that is linguistically accessible. neither the collective nor the individual rights of members of minority groups can be fulfilled without ensuring that the minority is able to participate effectively in the life of the nation.16 each state has assets held collectively by its citizens and whose distribution is determined by those in power. collective assets include public budgets, adequate representation in decision-making bodies, land, representation in, and control over, the state’s identity, and more. the state and its decision makers assume the position of trustee of these assets and thus have an inherent duty to divide them equitably. guaranteeing collective rights for minority groups can help to ensure that they, and not only the majority, have access to, and are able to participate in, the fair and equitable distribution and enjoyment of such public assets. the application of group rights is meant to transform the situation of minority groups and to enlist the institutional power of the legal and judicial system to play a role in societal transformation. consistent with this view, only a fundamental societal change that is free of conditions of group subordination may address the injustices suffered by the marginalized group. this concept suggests conceiving the notion of group equality as "a substantive societal condition"17 and to view the eradication of continuing societal conditions of injustice and inequality as the paramount concern. the fundamental goal of a struggle for group equality, then, must be “the complete transformation” of the society.18 the end of group discrimination, according to charles lawrence, “requires fundamental societal transformation, not just adjustments within established hierarchies”.19 the abolishment of group discrimination requires redistribution of societal resources. accordingly, the task of group rights is to carry out this societal transformation. a real question arises as to what means should be employed in order to engender such a transformation. proponents of litigation as a strategy for securing minority rights suggest that general political processes cannot be trusted to defend minority rights, as they are, by definition, powered by the will of the majority and set up as such to prevent a tyranny of the minority–an experience particularly feared in a post monarchy or post dictatorship society.20 as the argument follows, only through countermajoritarian bodies such as the courts, namely the supreme court, can minorities stand a chance of having their rights defended based on principle (enshrined in law), rather than on economic, social, and                                                                                                                           15 yousef t. jabareen, toward participatory equality: protecting minority rights under international law, 41 isr. l. rev. 635, 656 (2008). 16 for more on this point, see politics in the vernacular, supra note 9. 17 charles r. lawrence iii, foreword: race, multiculturalism, and the jurisprudence of transformation, 47 stan. l. rev. 819, 824 (1995). 18 id. at 825. 19 charles r. lawrence iii, foreword to who are we? and why are we here? doing critical race theory in hard times, in crossroads, directions, and a new critical race theory xi, xviii (francisco valdes et al., eds., 2002). 20 barry friedman, the birth of an academic obsession: the history of the countermajoritarian difficulty, part five, 112 yale l. j. 153, 172 (2002). 2013 columbia journal of race and law 29 other political concerns of the majority relative to the attitudes and perceptions of the minority at the time.21 another stream of thought, however, suggests that sustainable change cannot be achieved when it is imposed on the majority by a counter-majoritarian institution such as the courts.22 therefore, critics of activist courts and of seeking major change on behalf of minorities through them, contend that the role of the courts is to uphold basic principles without creating new frameworks for the roles and actions of governments and government actors, especially given that judges may not consistently represent the views of the public or be in a better position to dictate morality.23 the latter, they argue, is destined to backfire, causing resentment on the part of the majority of the minorities whose rights were “stolen” through luck of the draw of the right court, and ultimately leading to circumstances in which minority rights are enshrined in the books but absent from practice on the ground.24 an additional, often parallel, argument against using litigation to obtain minority rights is that it may have the undesired effect of divorcing political issues from the treatment of minorities, where the political issue must be addressed in order for any change to be lasting.25 in other words, given that the desired remedies often are far broader than the addition of specific programs, policies or cosmetic changes to public spaces, perhaps these changes need to be made through the political branches; or perhaps these are the kinds of changes that cannot be legislated, court-ordered, or otherwise politically and legally forced upon societies. and even if civil and minority rights advocates cannot wait for society to "evolve,” and political and legal means are a necessary immediate step, perhaps for them to have any substantive impact, they must be accompanied by major grassroots movements, shared by both majority and minority groups, which directly address the political, and not just the legal, aspects of the problem. furthermore, many opponents of using litigation to secure minority rights cite the legitimacy that such tactics grant the same institutions that often serve as “rubber stamps” or as active participants in furthering minority discrimination.26 an additional critique often raised regarding the reliance on litigation to achieve minority rights is that it entails significant financial investments that are often prohibitive for members of minority groups. accordingly, these significant financial investments certainly do not guarantee equal access to litigation as a strategy–as opposed to public political action, establishing grassroots organizations, and other methods of creating social change that require relatively little investment or expertise.27                                                                                                                           21 see generally gad barzilai, communities and law: politics and cultures of legal identities (2005); but c.f. id. (arguing that it is highly questionable whether courts are, in fact, counter-majoritarian, or whether they simply further the majority’s views through a more specific forum). for an additional critique, see gad barzilai, the ambivalence of litigation: a criticism of power, 13 jadal (2012), http://mada-research.org/en/files/2012/05/jadal13/eng /gadi-barzilai.pdf. 22 id. at 161. 23 see, e.g., john hart ely, democracy and distrust: a theory of judicial review (1980); alexander m. bickel, the least dangerous branch 58-72 (1962). 24 see, e.g., thomas b. stoddard, bleeding heart: reflections on using the law to make social change, 72 n.y.u. l. rev. 967, 982 (1997) (“‘rule-shifting’ has its merits and advantages, but it is simply less potent than 'culture-shifting’ in accomplishing the things i want to accomplish.”). 25 samera esmeir & rina rosenberg, resisting litigation in umm el-fahm, human rights dialogue, series 2, no. 2 (spring 2000), litigating human rights: promise v. perils, (carnegie council on ethics and international affairs, ser. no. 2(2), 2000). 26 see e.g., gad barzilai, the evasive facets of law: litigation as collective action, adalah’s newsletter (adalah, hifah, isr.), feb. 2005, at 1, available at http://adalah.org/newsletter/eng/feb05/ar2.pdf. 27 for more on this topic, see, e.g., preliminary material, in the european court of human rights and the rights of marginalised individuals and minorities in national context, i-xxi (d. anagnostou & e. psychogiopoulou eds., 2010). 30 the politics of equality vol. 4:1 it is this author’s contention that there must not be a definitive choice made between litigation and other political or grassroots methods of creating lasting social change for minorities. both are necessary, and both must be bolstered in the case of the palestinian-arab minority in israel. but they must be wielded appropriately–each utilized or abandoned, depending on the issue and its surrounding context. in the context of the palestinian-arab minority in israel, which will be explored below, the community’s extreme lack of power and influence, from the legislature to the street, has made litigation an attractive means of circumventing that impotency and attempting to shift the balance of power in order to examine issues of discrimination. what we shall see below, however, is that their lack of power has not been counterbalanced adequately by the courts–mostly due to the latter’s unwillingness to assert the full range of its authority and employ its tools. this article will review three prominent examples of collective assets–political representation, cultural-linguistic rights, and allocation of material resources–and it will then discuss the palestinian-arab minority’s attempts to achieve those rights through litigation. but first, in order to place these rights in context, let us conduct a short overview of this minority group’s historical and present reality. iii. background on palestinian arabs in israel in the aftermath of the 1948 war, a significant number of palestinian arabs remained within the borders of the newly established state of israel and were granted citizenship. since 1948, this group’s population has grown to eight times its original size (from 160,000 to around 1.3 million); however, it has remained roughly 18% of the total population throughout the years. palestinian arabs are a native, linguistic, religious, and ethnic minority in israel. while this group is palestinian ethnically and culturally, their legal status differs from other palestinians in the region. palestinians in pre-1948 historic palestine may be divided today into three broad groups: palestinians living in the west bank under israeli military rule and in gaza under a mixture of self-rule and ultimate israeli military control, in which most of the population is stateless28; palestinian residents of israeli who occupied and annexed east jerusalem (palestinian east jerusalemites) and hold permanent residency in israel29; and, the focus of this article, palestinian arabs in israel who became citizens of israel following the 1948 war.                                                                                                                           28 the majority of palestinians in the west bank and gaza hold no citizenship in any country, particularly those who were born in either of those locations. that said, there are those palestinians in gaza who hold a nationality, such as in egypt, and those in the west bank who hold a nationality in jordan or other countries; they are the minority. the vast majority of palestinians in the occupied palestinian territories are stateless; however, with the new recognition by 138 states of palestine as a state, palestinians in the west bank, gaza, and east jerusalem may find themselves eligible for passports and nationality in the state of palestine. it is questionable, however, what kind of citizenship rights the state of palestine could provide as long as it remains under israeli occupation. for an analysis of litigation brought on behalf of palestinian residents of the west bank and gaza over the years, and the level of success and failure in securing basic human rights and in challenging violations of international humanitarian law, see david kretzmer, the occupation of justice: the supreme court of israel and the occupied territories (2002). the legal issues and rights sought by palestinians living under occupation in these areas are significantly different from those of palestinian citizens of israel, whose struggle is primarily for equality of citizenship and equal participation in society as individuals and as a collective. the rights and legal challenges brought by palestinian minorities in foreign countries, after having emigrated to them or after having been accepted as refugees by them, is beyond the scope of this article. 29 immediately following israel’s occupation of the area now known as east jerusalem (among the other territories captured), israel annexed east jerusalem as part of israel and has since applied full israeli law and jurisdiction over the area. palestinian east jerusalemites hold permanent residency–a status which, among other limitations when compared to citizenship, is revocable under certain circumstances, including changing one’s center of life even to other parts of the occupied palestinian territory. 2013 columbia journal of race and law 31 it is important to note that the uniqueness of this group is not only derived from their status as a national minority, but also from the fact that they are an indigenous, original community. they continue to live in their homeland, the place in which they lived long before the inception of the state of israel, when they were part of the majority group together with the rest of the palestinian people.30 the state of israel was established in 1948 on the ruins of the native palestinian people, for whom the 1948 events were a national tragedy—known in arabic as the nakba, or “catastrophe.”31 the indigenous nature of the palestinian-arab population, with national, linguistic, cultural, and religious characteristics distinguishing it from the majority group, is an integral part of the way in which it experiences its condition and status in israel, and constitutes the most central rift in israeli society—the national-ethnic divide.32 israel is officially defined as a jewish and democratic state. palestinian arabs hold israeli citizenship, but their national and ethnic affiliation to palestinians has led successive israeli governments to view them with great suspicion.33 jewish-israeli society questions palestinian arabs’ loyalty to israel, while the latter continually re-evaluates its role within israeli society and politics and within the region at large.34 in the shadow of the ongoing israeli-arab conflict, a great deal of hostility shapes these attitudes, as the jewish majority views palestinians who remained in the state as part of the arab world, as a potential fifth column, and often simply as enemies of the state. the primary consequence of these attitudes has been that, by every measurable standard—such as income, education, infrastructure, employment, the criminal justice system, and the level of social services—palestinian-arab citizens lag far behind jewish citizens.35 palestinian arabs continue to be excluded from the centers of power and                                                                                                                           30 see edward said, the question of palestine (2d ed. 1992) (critiquing zionism’s impact on the palestinians); see also baruch kimmerling & joel s. migdal, palestinians: the making of a people 162-63 (2003). 31 an-nakba (the catastrophe) is the term used by palestinians and arabs referring to the exodus and displacement of palestinians from their land in the immediate aftermath of the founding of israel in 1948. it is estimated that nearly 800,000 palestinian were driven from their homes into exile (either forcibly or in search of temporary refuge), and they became refugees in the west bank, the gaza strip, and the neighboring arab countries. palestinian society and the palestinian way of life were largely destroyed. the tragic consequences of an-nakba still reverberate today and fuel the palestinian struggle for an independent state in the west bank and gaza. see ilan pappé, the making of the arab-israeli conflict 1947-51 (1994) (examining essential diplomatic and military battles, with special focus on the creation of the palestinian refugee problem and the failure of international mediation to achieve peace). nearly 160,000 palestinians remained in israel. they were stunned by the arab defeat, weak, and without a national political leadership. as’ad ghanem, the palestinian-arab minority in israel 1948-2000: a political study 11-12 (2001). 32 see amal jamal, arab minority nationalism in israel: the politics of indigeneity (2011) (outlining the struggle of arab-palestinian citizens to reframe their citizenship rights in the context of indigeneity and arab collective rights within the ethnocratic structure of israel’s majority); ghanem, supra note 31 (tracing the political activity of arab-palestinians and describing the ideological streams of arabs in israel); yoav peled, ethnic democracy and the legal construction of citizenship: arab citizens of the jewish state, 86 am. pol. sci. rev. 432 (1992) (arguing that various principles of citizenship legitimation have resulted in divergent types of citizenship for jews and arabs); nadim rouhana & as’ad ghanem, the crisis of minorities in ethnic states: the case of palestinian citizens in israel, 30 int’l j. middle e. stud. 321 (1998) (contending that israel’s present ethnic structure cannot provide its palestinian citizens with equality, identity, and security). 33 muhammad amara, the collective identity of the arabs in israel in an era of peace, in the israeli palestinians: an arab minority in the jewish state 249, 250-51 (alexander bligh ed., 2003); see generally ghanem, supra note 31 (arguing that israel is an ethnic state that has employed sophisticated policies of exclusion and discrimination to deny equality to the arab minority); peled, supra note 32 (arguing that israel’s ethnic democracy has served as a vehicle for discrimination against the arab minority). 34 dan rabinowitz & khawla abu-baker, coffins on our shoulders: the experience of the palestinian citizens of israel 11-12 (2005). 35 see generally ass’n for civil rights in isr., comments on the combined initial and first periodic report concerning the implementation of the international covenant on civil and political rights 32 the politics of equality vol. 4:1 are grossly underrepresented in government institutions, as well as in the general public sphere.36 political parties representing the community in the israeli knesset (parliament) have consistently played the role of a permanent opposition; being unwelcome in any governing coalition and enjoying few political peers, they have difficulty pushing through legislation, and although they sit on knesset committees they do not set their agendas, rendering them relatively impotent in advancing their community’s minority rights.37 indeed, prejudice against palestinian arabs in israel distorts the israeli political process in the two ways noted by professor john hart ely’s process-oriented theory.38 first, due to a deep-seated prejudice against the palestinian arabs on the part of almost all of the other majority sub-groups, palestinians are barred from the israeli “pluralists’ bazaar” that would otherwise enable them to build coalitions with other groups with shared interests on given issues (palestinians and disadvantaged jews). as such, they consistently end up on the losing side of the classification. second, prejudice affects the judgment of government decision makers who, being occupied by positive myths about their own group and negative myths about “outsider” groups, avoid coalitions with arab parties. in addition, government decision makers consistently devalue the cost of their actions where the palestinian-arab community, with which they do not identify, will be the one that is primarily affected.39   like other national and indigenous minorities worldwide, the palestinian-arab minority in israel seeks collective rights in order to enjoy and express its identity and equalize its position vis-à-vis israel’s jewish majority, on both the individual and group levels.40 this goal is sought specifically in relation to the three types of collective rights that will be reviewed in this article: representation in decision-making bodies, cultural-linguistic rights, and allocation of material resources. indeed, the need for these collective rights was in recent years expressed by the community itself in the political document released in 2006 and entitled the future vision of the palestinian arabs in israel (“the future vision”).41 formulated by a wide range of palestinian academics, legal experts, and community leaders, the future vision document outlines their thoughts and hopes regarding their current and future challenges as citizens within a state whose identity, collective history, and ethos they do not share–a state with a majority that holds a different vision than theirs.42 the document also offers concrete recommendations for the changes necessary to realize their collective rights, to make room for both majority and minority visions of the state and their existence in it.43 indeed, the future vision addresses the three realms discussed in this article indicating the centrality of these realms for the community. in regards to the right to power sharing and appropriate representation, the framers of the document seek effective representation and participation in the decision-making procedures employed within the                                                                                                                                                                                                                                                                                                                                                                                                         (1998). 36 see ghanem, supra note 31, at 165. also, in 2009, only 7% of all civil employees were arab. see also nabil khattab et al., social justice in jewish-arab relations in israel, the israel democracy institute (apr. 22, 2013), http://en.idi.org.il/analysis/articles/social-justice-in-jewish-arab-relations-in-israel. 37 see ghanem, supra note 31, at 165. 38 see ely, supra note 23, at 145-70 (arguing that the two degrees of prejudice experienced by a minority group indicate a failure of the legislators to accord a group equal respect and concern). 39 id. at 153-58. 40 see jabareen, supra note 5. 41 the nat’l comm. for the heads of the arab local auths. in isr., the future vision of the palestinian arabs in israel, 5 (2006), http://www.adalah.org/newsletter/eng/dec06/tasawor-mostaqbali.pdf. [hereinafter future vision]. the author of this article authored the legal chapter in future vision. 42 id. 43 id. 2013 columbia journal of race and law 33 official institutions.44 they stipulate that “[t]he two groups should have mutual relations based on a consensual democratic system,” which is defined as “a coalition between the elites of the two groups, equal proportional representation, mutual right to veto and self administration of issues exclusive to each community.”45 regarding linguistic rights, the authors of the document write that they seek “official recognition of palestinian-arab [collective] existence in the state, and [recognition of] their national, religious, cultural and linguistic character . . . .”46 a different part of the document asks the state to “guarantee[] a dual language system of both arabic and hebrew.”47 with respect to allocation of resources, the document calls for “equal distribution of resources[,] [including] budget, land and housing.”48 generally speaking, they “believe that palestinian arabs in israel, as a collective and as individuals, should have equal participation in all public resources[,] including political, material and symbolic resources.”49 the following section will outline the impetus for turning to the courts in an attempt to guarantee collective rights for the palestinian-arab minority in israel. it will then trace the history, challenges, and outcome of several central cases brought before the israeli supreme court (sitting as the high court of justice)50 in the struggle to achieve progress in the three essential categories of rights mentioned above.51 iv. utilizing the law as a tool for the recognition of collective rights in israel civil rights advocates in democratic countries often turn to the courts in search of justice that appears unattainable through pressure exerted on the legislative and executive branches alone. as was mentioned above, in light of jewish hegemony in israel, the country’s executive and legislative branches hold disproportionate power. this renders the third branch of government, the judiciary, the only remaining avenue available for transforming the reality of the palestinian-arab minority–despite the fact                                                                                                                           44 id. at 10. 45 future vision, supra note 41, at 11. 46 id. at 15. 47 id. 48 id. 49 id. at 14. 50 the israeli high court of justice is a first and last instance court that reviews the laws, policies, and decisions made by the state, the military, and the state agencies. it holds its sessions in the israeli supreme court, typically before a panel of three supreme court justices, except in certain cases in which a larger panel is deemed necessary. the proceedings are summary proceedings without evidentiary hearings or the opportunity for cross-examination. the relief sought is injunctive or mandamus relief against the state or a state actor. nevertheless, during deliberations on high court of justice petitions–which can last up to years in some cases–many procedural and substantive tools are available to the justices. for instance, justices may order temporary injunctions, stays of execution, timelines for updates from the ground from any of the parties in order to inform their decisions, or may refer the case to mediation. its decisions are final, with the rare exception of cases in which there has been a change in the factual situation or in the law since the decision was granted, and a new hearing is therefore required. the abbreviation “hcj” before a case name indicates that the case was determined by this supreme court proceeding. the terms “supreme court” and “high court of justice” are used interchangeably in this article, both referring to the supreme court sitting as the high court of justice. 51 the israeli supreme court’s members (up to fifteen) are selected, as are all israeli judges, by the judicial selection committee. this committee consists of nine members. it is chaired by the minister of justice, and includes the president and two other judges of the supreme court, another minister designated by the government (in addition to the minister of justice), two members of the knesset elected by the knesset, and two representatives of the israel bar association elected by the national bar council. israeli supreme court justices have life tenure, unless they resign, retire at the age of seventy or are removed from office. the supreme court justices must be citizens of israel, and until today, there has only been one palestinian arab citizen member of the court, justice salim jubran. justice jubran did not sit on the bench of any of the cases discussed in this article. 34 the politics of equality vol. 4:1 that palestinian arabs are grossly underrepresented in that branch as well.52 nevertheless, palestinianarab minority rights advocates have used the courts not only to remedy various forms of discrimination against individual members of the group, but also in an effort to secure group-based rights.53 in the 1970s, the association for civil rights in israel (“acri”) pioneered the strategy of filing legal petitions in israeli courts on behalf of all residents of israel in defense of fundamental rights. the focus on bringing such petitions on behalf of the palestinian-arab minority gained ascendancy in the mid-1990s. shortly after, organizations founded by, and for, the arab community, began to advocate specifically for the rights of palestinian arabs. foremost among them is the non-profit legal organization, adalah–the legal center for arab minority rights in israel–which is almost exclusively dedicated to direct legal action.54 irrespective of their particular focuses, all of these organizations view the law as an essential tool for the advancement of social equality and the attainment of individual and collective rights for the palestinian minority. these organizations and others, as well as tens of private attorneys, bring a range of cases before the courts, many of which touch on central areas of contention between palestinian arabs and the state. previous and ongoing cases have addressed the following issues, in the context of the claims made by the palestinian-arab community: land rights, budget distribution, representation in decision-making bodies, and educational and cultural rights. these emphases are reflected in the cases outlined below. this article will focus on three leading cases addressing collective rights and it will briefly address a few others. the rulings outlined here represent the most influential cases on collective rights over the last two decades. the article will demonstrate that while there have been notable successes in these cases, the overall effectiveness of solely using the law as a tool for promoting social change on the group level is questionable. a. representation in decision-making bodies 1. normative framework in order for majority groups to maintain hegemony, minority groups are often consigned to the fringes of the decision-making processes, if not excluded from these altogether. consequently, they lack the ability to wield meaningful influence over the management and distribution of state resources, such as budgets and land. furthermore, they are rendered impotent in preventing or modifying the adoption of policies, legislation, and other decisions that negatively affect them.55 similarly, when a minority’s status is contested on the national level, a state’s de jure and de facto rules are often structured to the benefit of a more dominant group. in such situations, the principle of strict equality is insufficient. in order to compete on an equal footing, minority groups require special group-based arrangements and protections. such arrangements could include proportional representation, the right to veto major decisions, self-steering in various spheres of life, and more.56 group-based arrangements are common in many countries throughout the world and have proven to be                                                                                                                           52 ilan saban, minority rights in deeply divided societies: a framework for analysis and the case of the arab-palestinian minority in israel, 36 n.y.u. j. int’l l. & pol. 885 (2004) [hereinafter minority rights in deeply divided societies]. 53 see katie hesketh et al., the inequality report: the palestinian arab minority in israel, adalah (mar. 2011), http://adalah.org/upfiles/2011/adalah_the_inequality_report_march_2011.pdf. 54 adalah: the legal center for arab minority rights in israel, http://adalah.org/eng/. 55 see asbjørn eide, minority protection and world order: towards a framework for law and policy, in universal minority rights 87, 105 (alan phillips & allan rosas eds., 1995). 56 politics in the vernacular, supra note 9, at 73-77. 2013 columbia journal of race and law 35 an effective tool for rectifying inequality,57 as they help to override the majority’s natural tendency to safeguard its own interests to the detriment of those of minority groups.58 one such arrangement, “appropriate representation”–which refers to the inclusion of members of the minority group in political decision-making bodies at all levels, not only numerically, but in a manner that faithfully reflects the minority group’s interests–is capable of obtaining equitable distribution of material and cultural resources, and facilitates the realization of their group-based aspirations and need for identity recognition.59 the goal of appropriate representation is that the inclusion of members of the minority group be authentic, effective, and (at a minimum) proportionate to the minority group’s percentage of the population; in other words, representation must not be tokenistic.60 those individuals appointed must represent the interests of their group; the appointees must have meaningful decision-making power; and, the number of representatives must be large enough to hold real influence over the outcome of the decision-making processes. simultaneously, appropriate representation of minorities entails not only enabling the minority group to meaningfully participate and receive a share of the full gamut of national resources, but it also requires government and public bodies to develop and implement mechanisms of consultation with representatives of the minority groups in order to ensure that an effective forum is in place to address the interests and concerns of the group.61 the 2007 declaration on indigenous rights recognizes the significance of this issue for minority groups, particularly indigenous minorities, and calls on states to take active steps to combat discrimination against minorities through consultation and cooperation with minority representatives.62 such steps include consulting minority groups in the process of appointing officials, ensuring that they are equal partners in designing mechanisms of participation, and including recognized community leaders in every stage of the decision-making processes, especially those that will impact the minority community.                                                                                                                           57 see generally id.; clive baldwin, chris chapman & zoe gray, minority rights: the key to conflict prevention (minority rights group, 2007). 58 examples of countries that have established “consociational” systems of representation include belgium, lebanon, switzerland, and canada-quebec. likewise, the future vision of the palestinian arabs in israel, mentioned above, calls for consociationalism in israel as a means of securing true power-sharing. future vision, supra note 41. as was discussed in the previous section, the palestinian arab political parties hold a disproportionally low percentage of seats in the knesset (eleven of 120). hesketh, supra note 53, at 52. again, given that the palestinian arab parties have consistently remained in the opposition, their ability to successfully introduce legislation regarding their community’s minority rights, that will pass either in a committee or on the floor of the knesset, is limited at best, rendering their representation little more than a token. 59 see ilan saban & scot streiner, appropriate representation of minorities: canada’s two types structure and the arabpalestinian minority in israel, 24 penn st. int’l l. rev. 563, 565-68 (2006) (discussing the two types of appropriate representation). 60 see id. at 566 (discussing how dense appropriate representation surpasses the scope of class appropriate representation by obsessing about the consequences to minority groups). 61 politics in the vernacular, supra note 9, at 87-88. 62 the 2007 declaration on indigenous rights, supra note 11, at arts. 15(2), 17(2), 18, 19, 30, 32, 36 and 38; see also s. james anaya & siegfried wiessner, the un declaration on the rights of indigenous peoples: towards re-empowerment, jurist (oct. 3, 2007), http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-of-indigenous.php (providing a discussion of the rights afforded by the resolution as well as the legal and political significance of its adoption). 36 the politics of equality vol. 4:1 2. case study: legal action regarding representation in the israel land council beyond palestinian-arab representation in the knesset, a common sphere in which consultation and cooperation with minority groups is gravely needed, is that of land rights. the ability of the palestinian-arab minority to maintain and develop a presence in its historical lands, and to have freedom of choice in location, either as a community or integrated among jewish israeli residents, is crucial to its standing within society.63 it is also important for a meaningful share of the resources and power of society, on a multitude of levels, from economic to cultural to political. the leading case addressing this issue was filed in 1998 by the acri against the israel land administration (“ila”). the ila did not include palestinian-arab representatives within the israel land council (“ilc”), its primary decision-making body.64 the case relied heavily on women’s network in israel v. minister of labor and social welfare, a 1998 precedent setting ruling relating to fair representation of women in senior public bodies.65 in women’s network, the supreme court held that women must be afforded adequate representation on the boards of government companies and must be appointed to senior positions in comparable public entities. furthermore, the ruling stated that in order to achieve the goals of equal representation and equality, affirmative measures might be necessary.66 using this case as a basis, the petitioners in the acri case hoped to achieve a similar outcome for palestinian arabs in israel, specifically in relation to representation in the ilc. the ilc, established in 1960 under the land administration law, is one of the country’s most powerful public bodies.67 responsible for administering over 93% of the total land in israel, the ilc determines both land allocation and land use, on behalf of the state.68 the ila’s board consists of twenty-four seats. at the time of the filing of the petition, half of these seats were allocated to representatives of the israeli government ministries, while the other half were representatives of the jewish national fund. while nearly 20% of israeli citizens are palestinian–an indigenous minority that has experienced numerous expropriations of its land–69 no single arab citizen of israel had ever occupied a seat on this powerful body. a number of factors influenced the final outcome of the petition. immediately following its filing, the government attempted to reach a compromise by appointing one arab to the council. in light of the need for appropriate representation of national and indigenous minority groups, the petitioners clearly regarded this sole appointment as insufficient. following the failed compromise attempt, and while the petition awaited deliberation in court, the israeli knesset passed two amendments to pre                                                                                                                           63 hesketh, supra note 53, at 31-38. 64 hcj 6924/98 the ass’n for civil rights in israel v. israel land auth. 55 p.d. v 15 [2001] (isr.). the author of this article was one of the two attorneys who represented the petitioner. 65 hcj 2671/98 women’s network in israel v. minister of labor and social welfare 52(3) p.d. 630. [1998] (isr.). 66 id., judgment, para. 41. the decision is available in hebrew at, http://www.civilservice.gov.il/nr/rdonlyres/de151df3 -9977-4667-b029-6732aa20beb0/0/267198.pdf. for a brief discussion in english, see ruth halperin-kaddari, women in israel: a state of their own (u. of pa. press, 2004) at 27. 67 see israel land administration law, 5720-1960, 14 lsi 50 (1960-1961) (isr.) (establishing the israel lands council which governs and supervises all activities related to the law). 68 id. 69 see generally forgotten palestinians, supra note 2 (tracing the historical narrative of israel’s sizeable palestinian minority); hussein abu hussein & fiona mckay, access denied: palestinian access to land in israel (2003) (exploring the ongoing jewish-arab land conflict and the policy ramifications of israeli land policy on israel’s significant palestinian minority). 2013 columbia journal of race and law 37 existing laws mandating adequate representation of palestinian arabs on the boards of directors of government-owned companies as well as in public service.70 in july 2001, the court delivered its final judgment. in its decision, the court called on the state to give weight to the principle of adequate representation of arab citizens on the ilc. additionally, on the operative level, the court recommended the government to affirm its recent arab appointment to the council and to appoint an additional arab member. notably, the court’s ruling went beyond the concrete circumstances of membership in the council. the court seemed to formulate, for the first time, a binding legal principle–albeit not a statutorily recognized one–that the state is obligated to consider the need for adequate representation of palestinian citizens in public bodies, especially those vested with pivotal public functions.71 echoing the ruling in the case pertaining to adequate representation of women in public companies–women’s network–the court noted that ensuring the representation of palestinian citizens in public bodies might require affirmative action.72 the ruling also included a declaratory statement that “for the benefit of israeli society, and for the good of the individuals who comprise it, the principle of equality between arabs and jews must be cultivated.”73 the operative part of the judgment in this case, however, was relatively weak in comparison to the more direct and stronger worded order for adequate representation of women dictated in the women’s network case. at the time, the ruling was hailed as a tremendous success by jewish and palestinian-arab civil rights activists alike. it was described by acri as a “precedent-setting judgment mandating affirmative action for arab citizens” and “a significant step forward in the struggle for equality . . . . [o]n a practical level, [the decision] enable[ed] the involvement of arab citizens in official decision-making processes.”74 despite this ‘landmark’ ruling, a deeper reading of the judgment and its practical implications reveals a different story. the court ruled that out of the twenty-four people who sit on the council, the state was only required to appoint two arabs. clearly this is far less than 20%, the approximate percentage of palestinian-arab representatives that should have been appointed in a system of proportional representation. secondly, the court did not require consultation with the arab community regarding the choice of whom to appoint. this omission left the door open for the appointment of ‘token’ representatives–individuals who do not faithfully represent the interests of the community.75                                                                                                                           70 in june 2000, a new amendment to the governmental companies law, 1975, was passed by the knesset, stating that, “in the board of directors of governmental companies, adequate representation will be given to the arab population.” art. 18(a)(1) of the governmental companies law, 1975. in december 2000, a new amendment to the civil services law, 1959, applied the adequate representation mandate in civil service to the arab population. ali haider, arab representation in the civil service, in government corporations and in the court system, the association for the advancement of civic equality in israel (2003), http://www.sikkuy.org.il/2003/english03/pdf/civilen03.pdf; see also, in hebrew, art. 18(a)(1) of the governmental companies law, 1975: http://www.nevo.co.il/law_html /law01/139032.htm#seif86 (last visited jan. 18, 2014); art. 15(a) of the civil services law, 1959: http://www.moital.gov.il/cmstamat/internalpage.aspx?frameless=false&nrnodeguid=%7bf895a658cb43-4a12-bc63-a5dc8ab84f01%7d&nroriginalurl=%2fnr%2fexeres%2ff895a658-cb43-4a12-bc63a5dc8ab84f01%2ehtm&nrcachehint=guest#_toc317671217 (last visited jan. 18, 2014). 71 the ass’n for civil rights in isr., supra note 64, at ¶ 27. 72 id. at ¶ 29. 73 id. at ¶ 15. 74 see obligation on the state to provide proper representation of arabs in the absence of explicit statutory provision, the ass’n for civil rights in isr. (july 9, 2001), http://www.acri.org.il/he/?p=5543 (last visited jan. 18, 2014). 75 saban, supra note 52, at 981. 38 the politics of equality vol. 4:1 absence of such a guarantee threatens to render the duty to ensure adequate representation an “empty duty.”76 it is therefore not surprising that the implementation led to a very poor outcome. initially, two members of the palestinian-arab community were appointed to the council by the government; however, the community did not view them as credible.77 furthermore, with time, the ruling was disregarded entirely, pointing to inadequacies in terms of enforcement. in 2009, the law was changed to require that all appointees (with the exception of two representatives of the jewish national fund) be employees of the state.78 a restructuring of the council’s membership followed, and the state appointed new council members who were all jewish males. because the makeup of the council was a violation of the 2001 ruling as well as the legislation on women’s rights, in 2010 acri filed another action seeking representation of both arabs and women on the council.79 the case is still in progress, and the most recent interim decision was issued in may, when the court issued an order nisi requesting the state to provide justification for why it has not appointed arabs or women to the council.80 despite what appeared in 2001 to be a successful ruling, to this day, there has been no resolution of the issue, and its outcome was in many regards a failure when tested on the ground. while, on the declaratory level, the court seemed to acknowledge and express support for the collective rights of the palestinian-arab minority, the ruling was in fact quite narrow. the judgment failed to order the government to take the kind of practical steps that could have prevented this outcome. for example, the court could have interpreted the law to require proportional and authentic representation, including government consultation with representatives of the arab community, such as the arab knesset members and the heads of the arab local authorities, prior to choosing the representatives. it is possible that such consultation would, as one would argue, be never-ending and that the internal politics of the community would be at play at such a level that it would be virtually impossible for the government to select representatives that would satisfy the entire palestinian-arab population. without any attempt to consult the members of the community, however, the choices of representatives were even further from the consensus than they would have been with some consultation, despite its inability to produce consistent results. instead, the weak and narrow ruling was coupled by a lack of will on the part of the government to implement the judgment in any meaningful way. together, the outcome utterly failed to fulfill the petition’s goal of realizing the right of appropriate representation of palestinian arabs in israel.81                                                                                                                           76 id. 77 see decree nisi appropriate representation israel lands council, the ass’n for civil rights in isr. (may 21, 2012), http://www.acri.org.il/en/2012/05/22/due-representation-in-ila/. 78 representation of women and arabs in israel lands council, the ass’n for civil rights in isr. (july 24, 2013), http://www.acri.org.il/he/?p=16915. 79 decree nisi appropriate representation israel lands council, the ass’n for civil rights in isr. (may 21, 2012), http://www.acri.org.il/he/?p=21394 (last visited jan. 18, 2014); see also the ass’n for civil rights in isr., http://www.acri.org.il/pdf/petitions/hit8318.pdf (in hebrew). 80 joanna paraszczuk, high court: not enough arab, women in top government posts, the jerusalem post (june 6, 2011), http://www.jpost.com/landedpages/printarticle.aspx?id=240751; order nisi regarding representation of women and arabs in the israel lands administration, the ass’n for civil rights in isr. (may 22, 2012), http://www.acri.org.il/en/2012/05/22/due-representation-in-ila (last visited jan. 18, 2014). 81 it should be noted that, as of this writing, the latest government appointments did not include any members of the palestinian-arab community. 2013 columbia journal of race and law 39 3. case study: legal action regarding representation on the planning and building commission from the palestinian-arab minority’s perspective, the real test as to the effectiveness of the court’s ruling in the acri case promptly presented itself in a subsequent case, in which palestinian-arab citizens demanded adequate representation among the seventeen members of the planning and building commission in the northern district. although palestinian arabs comprised more than 50% of the district’s inhabitants, only two palestinian-arab members served on the commission. the national committee of the heads of arab local authorities in israel, a self-organized umbrella group that represents all palestinian-arab mayors in israel, petitioned the supreme court arguing that the inclusion of only two palestinian-arab members out of a total of seventeen violated the right to equality of the district’s palestinian-arab residents. they further argued that this could not constitute adequate representation of the palestinian-arab minority when they constituted over 50% of the district’s residents.82 to further their argument, the petitioners relied on the new laws of adequate representation, the precedent-setting ruling in the acri case, and the exceptional importance of the planning and building commission for the palestinian-arab residents of the district. as in the acri case, the court rendered yet another disappointing judgment.83 it refused to accept the petitioners’ position that, under the adequate representation principle, the commission’s makeup should be roughly proportionate to the makeup of the population under its authority. the court accepted the government’s assertion that the commission had no palestinian-arab professionals who qualified for membership partly because of the general lack of experienced palestinian-arab government employees. in doing so, the court overlooked the fact that the lack of qualified or experienced candidates for the commission among the palestinian-arab minority was a result of longstanding, historical exclusion of palestinians from public service. the circle was thus completed once more: historical ethnic discrimination operates to rationalize and thereby perpetuate ethnic subordination.84 to this day, there has been little progress in translating the spirit of the supreme court judgment in the acri case into concrete results. currently, palestinian-arabs represent only seven to eight percent of all public employees despite comprising close to 20% of the population.85 indeed, if anything remains of the court’s affirmative action rhetoric in the acri case, it is the kind of affirmative action that, to use delgado’s language, “serves as a homeostatic device, assuring that only a small number of . . . people of color are hired or promoted. not too many, for that would be terrifying, nor too few, for that would be destabilizing. just the right small number, generally those of us who need it least, are moved ahead.”86 b. cultural rights: linguistic case 1. normative framework just as national and indigenous minorities seek the collective right of meaningful representation, they also require protection of their cultural rights in order to be able to fully express and enjoy their                                                                                                                           82 the author of this article was one of the two attorneys who represented the petitioners. 83 hcj 9472/00 the nat’l comm. of arab mayors v. minister of interior [2001] (isr.). 84 see ronen shamir, zionism 2000: past, future, and the qa’dan family, 2 adalah’s rev. 27 (2000). 85 in 2011, only 7.8% of all civil employees nationally were arab. ali haider, arabs, the israeli civil service needs you, haaretz (aug. 16, 2012, 9:28 am), http://www.haaretz.com/opinion/arabs-the-israeli-civil-service-needs-you1.458640. 86 richard delgado, affirmative action as a majoritarian device: or, do you really want to be a role model?, 89 mich. l. rev. 1222, 1223-24 (1991). 40 the politics of equality vol. 4:1 identities and safeguard them amidst social and political pressure.87 some common cultural rights sought by minorities include the right to practice their religions freely, the right to use their traditional lands and the right to engage in traditional practices such as hunting and fishing, or the use of particular plants and herbs for medicinal purposes or in rituals.88 the realization of these rights requires not only noninterference by states but also necessitates an obligation on the part of states to take positive measures to create the environment necessary for these practices.89 creating such an environment may be achieved through a number of means including appropriate budget allocations, modifying law and policy for specific groups, or granting rights of self-government in particular spheres of life such that minority groups are able to control some of their own institutions, including those in the educational and cultural spheres. language is a leading example of a cultural right, and linguistic preservation holds particular significance for national and indigenous minorities.90 language is often embedded in religious and cultural practice and is instrumental for the preservation of these traditions. furthermore, linguistic recognition and the right to use native languages in public forums provides minorities, who frequently face severe and prolonged discrimination, with the tools to access social and economic rights and services,91 thus aiding in equalizing the status of majority and minority groups. for instance, minorities require linguistic equality in order to compete fairly in the job market and in national networks of higher education—both of which are essential for the social and economic advancement of both individuals and their groups on the national level.92 linguistic rights are also critical for promoting a sense of belonging, which contributes to social cohesion and stability. thus, preservation of a minority’s language contributes to the group’s ability to compete on equal footing socially and economically and promotes the cultivation of a shared society.93                                                                                                                           87 jabareen, supra note 15, at 665. 88 see international covenant on civil and political rights (iccpr), art. 27, dec. 19, 1966; the declaration on the rights of minorities, supra note 10, art. 1.1; the 2007 declaration on indigenous rights, supra note 11, arts. 11 & 12. for an overview of rights concerning a group’s cultural practices, see multicultural citizenship, supra note 4, at 30-31. 89 see general comment no. 23: the rights of minorities art. 27, ¶ 6.1 & 7; the declaration on the rights of minorities, supra note 10, art. 2.1, dec. 18, 1992. 90 multicultural citizenship, supra note 4, at 12; politics in the vernacular, supra note 9, at 78–82. a relevant example of such an issue exists among the kurdish communities in turkey, syria, and iraq. for more on that topic, see, e.g. gurr, supra note 3. 91 such public services include, e.g., public health clinics, national post offices, public modes of transportation, and government offices such as the income tax authority, the social security institution, and the ministry of interior. 92 saban, supra note 52, at 925-38. 93 in order to fully realize the linguistic rights of national and indigenous minorities, depending on their percentage of the population, it may be necessary for states to institute a policy of bilingualism. such a policy entails granting the relevant languages equal status in both law and practice. thus, all areas of the public sector become bilingual including, but not limited to, government documents and forms, mass media, courts of law, the labeling of road signs and public buildings, and so forth. education systems may also adopt bilingualism, by which they teach both languages in order to advance equality and integration on the technical level and to promote the values of coexistence, acceptance, and intercultural education. canada is a worthy example of a bilingual system. see canadian charter of rights and freedoms, part 1 of the constitution act, 1982, being schedule b to the canada act, 1982, c. 16-23 (u.k.). article 16(1) stipulates generally that “english and french are the official languages of canada and have equality of status and equal rights and privileges as to their use in all institutions of the parliament and government of canada.” in the 1970s and 80s, canada undertook a comprehensive conversion to bilingualism, including all governmental and public service authorities. see joseph eliot magnet, the official languages of canada (y. blais ed., 1995); compare to the status of hebrew and arabic in israel: ilan saban & muhammad amara, the status of arabic in israel: reflections on the power of law to produce social change, 36 isr. l. rev. 5 (2002). on the importance of education for civic integration, see politics in the vernacular, supra note 9, at 293. in fact, guaranteeing linguistic rights in education is required by international law, for instance in the declaration on the rights of minorities, supra note 10, at art. 4.4. 2013 columbia journal of race and law 41 the importance of linguistic preservation, access, and equality is recognized in international law. enshrined in many of the legal instruments of minority rights is an obligation of states to officially recognize minority languages and to incorporate them into public spaces.94 the 2007 indigenous declaration is notable in this realm95; as was previously mentioned, it allows indigenous groups to selfadminister their own education in their native tongue,96 and also requires government offices and services to be linguistically accessible to indigenous groups.97 the declaration even emphasizes the importance of including indigenous languages on road signs.98 perhaps not surprisingly, indigenous peoples were integral in the framing of the 2007 declaration, and the final product reflects the primacy of linguistic rights from their perspective. 2. case study: legal action regarding signposting language and linguistic recognition is, similarly, a key demand of palestinian arabs in israel. in 1999, adalah and acri brought legal action against the municipality of tel aviv-jaffa and four other so-called “mixed” jewish-arab cities’ municipalities (acre, lod/lydda, ramle, natzirat illit),99 demanding the inclusion of both arabic and hebrew in their signposting on the municipal level.100 the petition was filed not only because arabs were unable to find their way around, but also in the hopes that adding arabic to municipal signs would give members of the arab community a sense of belonging, and would constitute an expression of their indigenous and historical connection to the land. in formulating the ruling, the justices were forced to consider the status of arabic as an official national language. paragraph eighty-two of the british mandate’s palestine order in council of 1922 (as incorporated into israeli law), treats the arabic and hebrew languages identically (in that order) as the two official languages of the state.101 paragraph eighty-two provides a unique legal anchor for the                                                                                                                           94 see, e.g., iccpr, supra note 88, art. 27; the declaration on the rights of minorities, supra note 10, art. 4. 95 s. james anaya & siegfried wiessner, the un declaration on the rights of indigenous peoples: towards reempowerment, jurist (oct. 3, 2007), http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-ofindigenous.php. 96 the 2007 declaration on indigenous rights, supra note 11, at art. 14.1 (“indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.”). 97 id. at art. 13.2 (“states shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.”). 98 id. at art. 13.1 (“indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.”). 99 some 10% of arab citizens of israel reside in so-called “mixed” cities such as acre, lydda, ramle, haifa, and tel aviv-jaffa, cities which consist of sizable populations of jewish and arab residents. for instance, tel aviv developed alongside the ancient port city of jaffa and today they constitute the same municipal unit. about 5% of the population of tel aviv is palestinian arab, primarily residing in jaffa. beyond the numbers, however, jaffa, like many other cities in israel, is historically significant to the palestinian community living in israel and beyond. prior to the establishment of the state of israel, four of the cities that requested via the petition to add arabic captions (acre, lydda, ramle, and jaffa), were national, cultural, and economic centers for the palestinian community until its overthrow in 1948. 100 hcj 4112/99 adalah and the ass’n for civil rights v. municipality of tel aviv-jaffa et. al. 56(5) pd 393 [2002] (isr.). for additional discussion on this case, see zeev segal, do israeli arabs have collective rights, 12 j. l. soc’y 94 (2010) (hereinafter segal); michael karayanni, two concepts of group rights for the palestinian-arab minority under israel’s constitutional definition as a “jewish and democratic” state, 10 i. con 304, 310 (2012) (hereinafter two concepts of group rights). 101 palestine order of council of the british mandate of palestine, 1922-1947, ¶ 82. 42 the politics of equality vol. 4:1 collective right held by the palestinian-arab minority, as opposed to an individual right.102 this special legal arrangement was never changed by the israeli legislature; in fact, the knesset has rejected attempts to nullify it.103 as justice dorner commented in her concurring opinion, while the status of the english language as an official language was canceled in art. 15(b) of the law and administration ordinance, the knesset rejected a bill attempting to annul the status of arabic as an official language (bill on the language of the state – 1952, knesset record, volume 12, annex, at p. 2528).104 there may be other considerations for preserving this status, but from a normative perspective, there is a bilingual arrangement according to law. it should be noted that the court refused to hear the issue again, and rejected the application for a review of the decision, in which the court noted, inter alia, the power of political authorities to change the normative status on the topic: it has been clarified that the opinion of the attorney general is not supported by the opinion. needless to say, he, like the rest of those interested in the issue, is given the option to bring the issue before other official bodies more suited than the court for their determination.105 that said, despite the legal status of arabic as an official national language, in practice, hebrew is the dominant language in all aspects of israeli life and has been given added legitimacy and public presence through subsequent legislation and policy.106 the supreme court decision was handed down in june 2002 and it represents the central legal precedent regarding the status of arabic in israel.107 in the decision, the justices ordered the local authorities in the “mixed” cities to add arabic to all signs within their respective municipal jurisdictions,108 as well as to all safety and caution signs and all signs leading to municipal institutions within the cities under their jurisdictions.                                                                                                                           102 see saban, supra note 52, at 925 (“the most far-reaching group-differentiated right that is granted to the palestinian minority by israeli law is the normative status of arabic as one of the two official languages of the state.”). justice dorner also commented on this uniqueness. see adalah and the ass’n for civil rights, 56(5) pd at ¶ 6 (dorner, j., concurring) (“in general, the principle of equality between jews and arabs applies to personal rights. this rule has few exceptions, and among them is the recognition of the arabic language as a second official language, along with the hebrew language.”). see also adalah and the ass’n for civil rights, supra note 100. 103 hcj 7260/02 municipality of ramle v. adalah, nevo legal database (by subscription) (isr.), available at http://elyon2.court.gov.il/files/02/600/072/f03/02072600.f03.htm (isr.) (unpublished opinion). 104 hcj 4112/99 adalah v. municipality of tel aviv [2002] (isr.). a summary of the verdict in english, as published by the petitioner (adalah): http://adalah.org/features/landlangrep/4112decision-eng.pdf. 105 id. at ¶ 5. see also adalah and the ass’n for civil rights, supra note 100. 106 it should be stressed that, despite the identical formal normative statuses of arabic and hebrew established by the palestine order in council, 1922, supra note 101, at part viii (82), later legislation provided for public aid for the cultivation of the hebrew language only, such as the supreme hebrew language institute law, 5713-1954, 7 lsi 140 (1953) (isr.) and the law on the use of the hebrew calendar, sh no. 1682, 312, aug. 4, 1998, nevo legal database (by subscription) (isr.), http://www.nevo.co.il/law_word/law14/law-1682.pdf. moreover, other legislation granted public assistance to the cultivation of other languages spoken by israelis, to the exclusion of arabic, an official language according to law. see national authority for yiddish culture law, sh no. 1577, 182, mar. 17, 1996, nevo legal database (by subscription) (isr.), http://www.nevo.co.il/law_word/law14/law-1577.pdf (established the referenced authority in order to assist and encourage creativity in the yiddish language); see also national authority for ladino culture law, sh no. 1577, 185, mar. 17, 1996, nevo legal database (by subscription) (isr.), http://www.nevo.co.il /law_word/law14/law-1577.pdf (established the ladino authority for the same purposes). 107 for more on the ruling, see two concepts of group rights, supra note 100, at 310-14. 108 the decision referred to the municipalities of tel aviv-jaffa, lod/lydda, ramle, and natzirat illit. following the filing of the petition, the municipality of acre decided on its own accord to add arabic to its signs, and 2013 columbia journal of race and law 43 in chief justice aharon barak’s majority opinion, the court emphasized that the arab minority is not only a numerically large minority in israel, but it is also a minority with a longstanding presence there.109 this emphasis is the first time in which an israeli court granted legal standing to the status of the palestinian-arab minority as an indigenous minority, even if it did not use the actual word, “indigenous”.110 more significantly, the ruling in this case was based on a positive conception of the linguistic rights of the palestinian-arab citizens and the significant role language plays in maintaining identity. the judgment also strengthened the basis for the special status of the arabic language in the state of israel, particularly given what chief justice barak described as the lengthy history of palestinianarab presence in the land. the petitioners considered the judgment to be "profoundly important" and hailed it as "an important step in the recognition of the collective rights of arab citizens in israel, primarily the right to language and culture.”111 nevertheless, similar to the petition on representation described in the previous section, the outcome of this legal action, even if it represented some modicum of progress, must be considered limited, both technically and in relation to recognition of the collective linguistic rights held by the palestinian-arab minority. first, although municipalities did indeed add captions to their signs, they practically made a mockery of the judgment, executing it in a blatantly unprofessional manner, including frequent spelling and grammatical errors that were unreasonable.112 for instance, arab youth talked about a sign that was erected on one of the beaches in israel on which it is written in hebrew, “bathing is prohibited in this place” and in arabic that “bathing is permitted.” a similar example is that of the city of acre, which is written in arabic letters as “akko, ” the hebrew name for the city, and not “akka,” its arabic name. such is also the case for the cities of be’er sheva, lod, and tiberius. these errors demonstrated the municipalities’ insulting and belittling attitude toward the palestinian-arab citizens reading the arabic signs. secondly, on a fundamental level, the arabic captioning added to the signs, in many cases, was a technical transliteration of the hebrew writing appearing on the sign, rather than the label of the place with the authentic arabic name to which palestinian-arab citizens are accustomed. by merely transliterating the hebrew text, the central goal of collective linguistic rights and the main impetus for bringing the litigation—attaining a sense of belonging in the country and preserving the historical, original arabic names of cities—certainly was not achieved. naturally, a counter-argument can be made for the importance of uniformity in the names of places in a country in order to avoid splintering and exclusion of any one group and to foster social                                                                                                                                                                                                                                                                                                                                                                                                         therefore its status in the petition was changed to mere formal respondent. a previous petition had led to bilingual signposting in haifa, according to a settlement reached by the parties and given the status of a court judgment. hcj 2354/93 ass’n for civil rights in isr. and the org. for soc. advancement in haifa v. municipality of haifa, nevo legal database (by subscription) (isr.) (unpublished opinion). 109 adalah and the ass’n for civil rights, supra note 100, at ¶ 25. 110 id. (“arabic is the language of the largest minority in israel, one that has long lived in israel. this language is connected to cultural, historical and religious characteristics of the arab minority group in israel. it is the language of citizens that despite the arab-israeli conflict wish to live in israel as loyal and equal citizens, where their language and culture are respected (emphasis added).”). 111 the arabic language is an official language in israel, ass’n for civil rights in isr. (july 28, 2002); press release, adalah, supreme court issues historical judgment affirming the collective rights of palestinian minority in israel (july 26, 2002), http://adalah.org/eng/articles/141/supreme-court-issues-historic-judgment-affirming. 112 see hesketh, supra note 53, at 47. see also press release, adalah, adalah and acri demand implementation of israeli supreme court ruling ordering the addition of arabic to signs in nazaret illit municipality (nov. 19, 200), http://adalah.org/eng/articles/955/news-in-brief-. 44 the politics of equality vol. 4:1 cohesion. however, even the choice of such a name has the potential to be informed by the dominant culture’s choice. without a deeper sense of cultural inclusion on the part of the palestinian-arab community, creating permanent, uniform names has the potential to be received as another affront by the majority on the minority. moreover, the decision about word choice in labeling places was not the only critique that the case raises. yet, two other major needs of the palestinian-arab community remained unaddressed: the need to mark palestinian historical sites and the importance of recognizing arab national heroes through signposting.113 fulfillment of these needs would require adding new signs and changing existing ones, not simply adding arabic captions to existing hebrew signs. while the petition perhaps did not explicitly raise this deeper recognition of cultural and historical recognition, the court’s oversight nonetheless represents a failure to recognize the full meaning that the language carries for each group. indeed, the ruling failed to equalize the hebrew and arabic language’s status, thus turning a blind eye to the palestinian-arab population’s essential character as an indigenous national minority and their need for collective linguistic rights. instead, despite the important and principled ruling on the status of the arabic language, the obligation to add arabic to municipal signs only received technical and formal expression. this will not result in the realization of the essential objective of bilingualism to which the palestinian-arab minority aspires.114 in fact, arguably, the decision weakened the position of arabic vis-à-vis hebrew and perhaps even that of the community as a whole, as it forced the judges to consider the relative statuses of the two languages, ultimately deciding in hebrew’s favor.115 highlighting this inferiority in a supreme court opinion could open the door for official authorities to find additional justifications, beyond those cited in the opinion, for deviating from the bilingual status required by law.                                                                                                                           113 many geographic places within and around the current borders of israel have deep historical significance for the palestinian-arab minority, not only as individuals but also as a collective; these sites include unrecognized arab villages, abandoned and destroyed villages, and other religious and historical sites. in most cases, there is no signage whatsoever in these places; however, in some places the sites have been given hebrew names—old or new. furthermore, many of the names currently in use for geographic locations reflect a jewish zionist narrative. this narrative is not only inappropriate, or at best incomplete, to arabs, but it is also fiercely disputed and carries with it deep and painful connotations. similarly, figures or events of significance to palestinian-arabs remained virtually unrecognized, even in neighborhoods in mixed cities in which arabs have a sizable presence. see saban, supra note 52, at 935 (“in terms of the theoretical framework that was presented for group-differentiated rights, the minority’s demand is for a significant right to special representation and allocation, as distinct from merely formal linguistic representation. in other words, the demand is that the minority itself should be able to choose the linguistic representation that is adopted in its language. this will enable its participation—as an ethno-national community—in determining the public human landscape of the country.”). 114 see four important documents: the future vision of the palestinian arabs in israel, supra note 41; yousef t. jabareen, an equal constitution for all? on a constitution and collective rights for arab citizens in israel, mossawa center: the advocacy center for arab citizen in israel (2006), http://www.mossawacenter.org/my_documents /publication/constitution_paper_eng.pdf; adalah, democratic constitution, adalah: the legal center for arab minority rights in israel (2007), http://adalah.org/public/files/democratic_constitution-english.pdf; nadim n. rouhana, the haifa declaration, mada al-carmel (2007), http://mada-research.org/en/files /2007/09/haifaenglish.pdf. 115 note the difference in the statuses of the two languages as described by chief justice barak and by justice dorner, respectively. adalah and the ass’n for civil rights, supra note 100 at ¶ 25 (barak, c.j.) (“the desire to ensure dignified coexistence between the descendants of our forefather, abraham, in mutual tolerance and equality, justifies recognizing the use of the arabic language in municipal signposting—in the same cities in which there is a significant arab minority (six to 19% of the population)—alongside its senior relative, hebrew.”); id. at ¶ 7 (dorner, j., concurring) (“while hebrew is the first official language of the state of israel, as the national language of the majority, the status of arabic as an official language according to amended paragraph 82 was designed to uphold the freedom of language, religion and culture for the arab minority.”). 2013 columbia journal of race and law 45 it is interesting to note that all three justices on the panel, including the two in the majority, were divided in their reasoning, and this divide could explain the narrow, literal decision granted. former chief justice barak reasoned that paragraph 82 of the palestine order in council of 1922, which established the status of the arabic language as an official language, did not create in and of itself a direct obligation to add arabic to all municipal signs. nonetheless, he reached this obligation through interpretation, balancing the various objectives of the discretion given to local authorities, namely in the implementation of the values of equality and in protecting language rights. justice dorner joined chief justice barak’s decision, but her concurring opinion was based on different legal reasoning. in her view, the obligation of the respondent municipalities to add arabic to all municipal signposting is anchored in paragraph 82 of the palestine order.116 according to justice dorner, “[t]he status of the arabic language as an official language cannot be reconciled with the reduction of signposting in certain areas within the jurisdiction of the respondent local authorities.” justice dorner went on to state that, “such a reduction in fact has a damaging connotation.”117 justice cheshin, in a lengthy dissenting opinion, reasoned that the petition must be declined both on the merits—as “theoretical, general and vague” —and on jurisdictional grounds, as ruling on the petition would constitute rendering “a political determination of the highest level,”118 which is beyond the scope of the court’s jurisdiction. according to justice cheshin, the petition asked the court to take political measures, which are within the authority of the political organs of the state—the government and the knesset (parliament)—and not the court.119 the opinion also revealed the reluctance of the court (both the majority and dissent) to accept bilingualism as a right owed to substantial national minorities. the opening section of the chief justice’s opinion reveals an individualistic approach to the right to language120—one that is not easily reconciled with the collective essence of this right. this approach contradicts the same court’s rulings that declared arabic’s status as the language of a long-present community in israel. this is even more striking when compared to the collective approach taken by the chief justice regarding the status of the hebrew language.121                                                                                                                           116 id. at ¶ 5 (dorner, j. concurring). 117 id. at 480 (dorner, j., concurring). 118 id. at ¶ 38 (cheshin, j., dissenting). 119 adalah and the ass’n for civil rights, supra note 100, at ¶ 55 (cheshin, j., dissenting). 120 see, e.g., chief justice barak’s wording in paragraphs 16 and 19 of the opinion. id. at ¶ 16 (barak, c.j.) (“the first overall objective relevant to the present matter is that which deals with the protection of one’s right to his language. one's language is a part of his personality. it is the instrument with which he thinks.”); id. at ¶ 19 (“given that language is highly important to the individual and his development, one’s possibilities must not be limited because of language.”). 121 see, e.g., chief justice barak’s wording in paragraph 21. id. at ¶ 21 (citations omitted) (“the fourth overall objective that must be considered here is recognition of the importance of language as an element in national cohesion and in defining the sovereign state. language is not just an expression of an individual’s identity. language is also an expression of the general public. it is the common thread that ties individuals to a particular society. it develops social cohesion in israel. hebrew is the force that unites us as members of one state. hebrew cannot be owned by this group or that in israel. ‘the hebrew language is an asset held by the entire [jewish] people.”). chief justice barak’s narrow view of bilingualism is also illustrated by some of his later statements in the opinion, according to which the addition of arabic to public signs will cause an injury to national cohesion—albeit a minor one. such a statement could have serious ramifications for the status of the arabic language. the “national cohesion” that the chief justice describes is an exclusive cohesion shared only by the jewish majority, as distinct from an inclusive cohesion shared by both national communities existing in the state. had it taken a broader view, the court could have concluded that adding arabic to municipal signs was in fact a step toward strengthening (bi)-lingual cohesion in the state, as it reflects the social-national, linguistic mosaic that is an essential element of israeli society. 46 the politics of equality vol. 4:1 justice cheshin’s dissenting opinion also adopted a narrow view of the principle of bilingualism. he characterized the demand for language equality and group linguistic rights as political and one that “diverges from the function and authority” of the court.122 justice cheshin proffered that the right of an arab citizen in israel to his language is a passive right that does not impose an affirmative right on the state to implement it via the addition of arabic to municipal signs. therefore, for justice cheshin, israeli law does not recognize group rights, rather it only protects individual rights.123 of course, his view was overruled by the two other justices. yet, his view remains a source for developing future legal arguments against the collective linguistic rights of the palestinian-arab minority. naturally, the decision served as the subject of much academic criticism.124 one such critique is that of professor michael karayanni, who discusses this ruling as exemplifying his ‘thin’ concept of minority rights in relation to the palestinian minority in israel. accordingly, israeli constitutional law is prepared to grant some group accommodation rights in line with justice barak’s recognition of the arab minority as an indigenous minority. however, such rights and accommodations are relative and limited; they are only permitted to the extent that they do not threaten the dominant status of jewish rights. indeed, both in the narrow ruling and in its practical outcome, the realization of the palestinian-arab minority’s collective linguistic rights was outweighed by the interest in preserving jewish hegemony in all aspects of israeli life, including cultural and linguistic expression. 3. case study: legal action regarding language on road signs another salient example of the literal as opposed to substantive fulfillment of these rights is the 1997 case, adalah. v. ministry of transportation, demanding that the ministry of transportation, the public works department, and the national roads company add arabic to all national road signs.125 the petition alleged discrimination against the palestinian-arab minority in violation of the official status of the arabic language in israel (under the palestine order in council) and israel’s requirements toward national minorities under international law. furthermore, the petitioners argued that the absence of                                                                                                                           122 id. at ¶ 59 (cheshin, j., dissenting). 123 adalah and the ass’n for civil rights, supra note 100, at ¶ 19-24; see also adalah and the ass’n for civil rights, supra note 100, at ¶¶ 51-52 (cheshin, j., dissenting) (“the petitioners come to us with a different view. the right that they claim—the right to cultivate a national and cultural identity—is not a right endowed to the individual on his own. in fact this is a right shared by all the state’s citizens by virtue of their being citizens. the right that the petitioners claim is derived from the fact of an individual belonging to a certain segment of the population: his membership in a cultural and national minority group . . . . we recognize the freedom of culture and of language. this right of an individual, as in the right of all individuals—subject to exceptions—grants him the right to engage in cultural activities as he wishes; every person is free to express himself in whatever language he desires, and the state is not permitted to obligate him to express himself in a certain language or to prevent him from using another language. however, the obligation imposed on the state to assist the minority to preserve and develop its language and culture—a quasiobligation—is not one that is recognized by us.”). 124 ilan saban, a lone (bilingual) cry in the dark? following hcj 4112/99 adalah v. municipality of tel aviv-jaffa, 27 tel aviv u. l. rev. 109 (2003-04); yaacov ben-shemesh, state neutrality and the right to language, following hcj 4112/99 adalah v. municipality of tel aviv-jaffa national neutrality and the right to a language, 8(1) misphat umimshal l. & gov’t 347 (2005); ilan saban & mohammad amara, on collective rights and reality: the status of the arabic language in israel, 4 st. & soc’y medina ve-hevrah 885, 909 (2005); eyal benvenisti, the defense of minority communities in the courts, legal leaves c 463 (2003-04); geirshon girshon gontovnik, the right to culture in a liberal society and in the state of israel, 27 tel aviv u. l. rev. 23 (2003-04); michael m. karayanni, on the concept of ‘ours’: multiculturalism with respect to arabjewish context relations, 27 tel aviv. u. l. rev. 71 (2003-04). 125 hcj 4438/97, adalah. v. ministry of transp., 98 takdim elyon (1) 11 [1998] (isr.). 2013 columbia journal of race and law 47 arabic on signs posed a safety hazard to the general public by denying arabic speakers signage that they could read quickly in order to avoid traffic accidents and needless speeding.126 the state’s counterclaims were of practical, not principled nature; however, they stood to have a substantial impact. the state argued that the addition of arabic to all road signs would clutter them with a “forest” of words and serve to confuse more than to assist drivers. to counter this claim, adalah offered the results of research conducted on the matter, which demonstrated that signs bearing three languages were equally as effective as signs with two languages. in a hearing that took place at the end of 1998, the supreme court ordered the state to develop a timeframe shorter than five to seven years, as the state had proposed, in which to add the arabic translations of the nation’s road signs. in february 1999, the state committed to adding arabic to all of the country’s road signs within a five-year period.127 although arabic translations have been added to thousands of signs across the country since the supreme court decision, to this day the state has yet to fully implement the decision by adding arabic to all of the signs. furthermore, as in the previous adalah case discussed above, inaccuracies and negligent spellings have been found on numerous signs, and the organization is forced to continually monitor the implementation of the judgment.128 what perhaps renders this reality even more harmful to the realization of the palestinian-arab minority’s linguistic rights is the dynamic that has resulted from the line of litigation exemplified by the cases above—a dynamic in which the state and local municipalities are aware that full, timely, and meaningful implementation of the judgments rendered by the supreme court on this topic is not necessary because the consequences are negligible, if they exist at all. moreover, there is no adequate way of ensuring that the substance and spirit of the judgments—beyond the technical face value of their instructions—are implemented. this is the result of overly broad wording employed by the supreme court justices and their leniency with state and municipal actors who delay or evade full translation of the judgments into action. c. allocation of material resources 1. normative framework the “transformative” approach to group equality not only focuses on formal discrimination, but also on the lasting material discrimination suffered by the minority. material discrimination refers to the ways that discrimination and exclusion economically and culturally subordinate minority groups to the majority and subordinate the life chances of the minority to those of the majority in almost every sphere of life.129 accordingly, although a narrow approach to group rights might succeed in eliminating the formal manifestations of group discrimination (a substantial achievement for many minority members),                                                                                                                           126 in order to appreciate the extent of the danger, at the time the petition was filed, less than 20% of all road signs included arabic. id.; see also the use of arabic on national road signs, adalah, http://adalah.org/eng/articles/618/ the-use-of-arabic-on-national-road-signs-. the remaining road signs were posted in hebrew with english translations only. the only signs on which arabic did appear were those located near palestinian-arab towns. id. 127 id. 128 in the course of litigating the case, it was discovered that only 3.5% of the national roads company’s employees were arab, of whom less than a quarter were employed full time. it was also discovered that there was not a single arab member of the company’s management, and among 174 engineers only one was arab. as a result, adalah added this issue to the demands of the case and to this day continues to push for increased hiring of arabs in the company. 129 kimberlé williams crenshaw, race, reform, and retrenchment: transformation and legitimation in antidiscrimination law, 101 harv. l. rev. 1331, 1377 (1988). 48 the politics of equality vol. 4:1 its short reach ultimately allows the perpetuation of conditions of material subordination of the minority group.130 minorities’ need for an equitable distribution of resources—including in relation to identity preservation—is supported by international law.131 article 5.1 of the 1992 declaration on minorities stipulates that “national policies and programs shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities.”132 in his commentary on the declaration on minorities, minority rights expert professor asbjørn eide notes that the article should be read to include the distribution of such resources as public health, education, social security, housing, and other public welfare programs.133 as a starting point, minorities require budgetary and other material resources proportional to their percentage of the population. however, in order for minority groups to achieve equal standing with majority groups, programs must expand the strict or formal definition of equality and distribution without discrimination into the realm of equity. given that minority groups are often disproportionately disadvantaged socio-economically and have experienced long periods of deprivation and discrimination, principles of distributive and corrective justice often demand that extra measures and special allocations be undertaken in order to bring minorities to a status that is parallel to that of majority groups.134 affirmative action programs are only one of many ways to offer disadvantaged groups legitimate opportunities to progress and fully and equally enjoy the resources of a state. 2. case study: legal action regarding allocations for education the leading legal action brought in israel regarding these principles relates to distribution of funding for education. in february 1998, the israeli government adopted a program intended to advance education in israel’s periphery. “incentives in the areas of education and culture,” as the government decision stated, “were intended to improve the level of student achievement, with the aim of reducing the existing gaps between areas in the periphery and the center.”135 the classification of a town as bearing national priority status, as defined by the plan, entitled it, and the teachers in its schools, to a host of comprehensive and significant benefits and incentives.136 in order to determine who was eligible                                                                                                                           130 jabareen, supra note 15, at 661-64. 131 see, e.g., declaration on the rights of minorities, supra note 10. even general comment 23 on article 27 makes clear that although the rights therein are articulated as negative rights, they also obligate states to take positive action to create conditions for their realization. human rights comm., general comment no. 23: the rights of minorities, 50th sess, u.n. doc. ccpr/c/21/rev.21 (apr. 8, 1994). 132 declaration on the rights of minorities, supra note 10, at art. 5.1. 133 asbjørn eide, commentary to the declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities, subcomm. on prevention of discrimination and protection of minorities, working group on minorities, rep. on its 4th sess., may 25-29, 1998, art. 5.1 commentary, u.n. doc. e/cn.4/sub.2/ac.5/1998/wp.1 (may 13, 1998). 134 see the declaration on the rights of minorities, supra note 10, art. 4; the iccpr, supra note 88, art. 2. see also patrick thornberry, an unfinished story of minority rights, in diversity in action 47, 48 (a.m. bíró, & p. kovács eds., 2001). 135 see government decision no. 3292, 15 february 1998, available at http://www.pmo.gov.il/about/projects/ documents/des3292.pdf. 136 for example, incentives for teachers included a 75% reduction in tuition for teacher training, along with full reimbursement of transportation expenses, an 80% housing subsidy for teachers who reside in the same town in which they teach, and full coverage of teacher participation in payment for continuing education courses. on the municipal level this included, for example, full funding of the installation of computer systems in schools in priority area a and annual grants of 100,000 nis (approximately $25,000 usd) “to encourage disadvantaged populations” for each community center in towns classified as priority area a. 2013 columbia journal of race and law 49 for these incentives, the plan classified each town and city in israel in one of three categories.137 of the 535 cities and towns that were granted priority, only four were arab towns and all were of small populations. this program was viewed by the palestinian-arab community as particularly grievous given the poor state of arab education as a whole in israel. indeed, on virtually every level—from achievement levels to drop out rates, to class size, to infrastructure, and most certainly in relation to funding—arabs fare much worse than students in the jewish education system.138 a report issued by a governmentappointed committee, the or commission,139 detailed many of the disparities between state investment in jewish and arab education.140 given this reality, even the most cursory examination of statistics revealed that the state’s claim that the selection of national priority areas was based on geographic and need-based considerations was unfounded. for example, if scholastic achievement in peripheral areas were a determining factor, then why were sixty-two towns from non-peripheral areas—the majority of which are predominantly jewish—added to the 491 periphery towns granted extra support. similarly, if the criteria were economic, determination of priority areas could have been in line with the state’s own yearly ranking system of the socio-economic situation of all towns in israel conducted by israel’s central bureau of statistics (cbs).141 according to this recognized and accepted ranking system, the need for economic support is                                                                                                                           137 government decision no. 3292, supra note 135. 138 for more information, see dirasat and haifa university law school release a report on the state of arab education in israel, dirasat arab ctr. for law & policy (jan. 22, 2011), http://www.dirasat-aclp.org/index.asp?i=679 (detailing the release of a research report which shows that the state of arab-palestinian education remains in a state of crisis as arab-palestinian students lag roughly 2.5 times behind their jewish peers in academic achievement); see also or kashti, the jewish student receives 5 times as many enrichment hours as the arab student, ha’aretz, aug. 12, 2009 available at http://www.dirasat-aclp.org/fact_sheet-education%5b1%5d.pdf (providing statistics on the disparities in education between the arab and jewish population). 139 the “or commission,” or the “state commission of inquiry into the clashes between security forces and israeli civilians,” was appointed on november 15, 2000 by then israeli supreme court president, aharon barak, one month after the tragic october 2000 events in which twelve arab citizens and one resident of the gaza strip were killed at the hands of israeli security forces. the public hearings, headed by then israeli supreme court justice theodor or, lasted two and a half years, from february 2001 to august 2003. the commission’s report was released on september 2, 2003. in a general sense, the report acknowledged the status of the arab minority and critiqued the state’s approach; however, it failed to hold state officials explicitly accountable for the killings. although no english translation of the or commission report exists, a summary in english, prepared by the israeli newspaper ha’aretz may be found on the sikkuy website. see official summary of the ‘or’ commission report, first or watch conference proceedings, ha’aretz (june 24, 2004), http://www.sikkuy.org.il/english/2004/officialsummary.pdf. 140 the report stated that discrimination against arab schools continued in many areas: the ratio of pupils per teacher, the number of students in each classroom, the number of suitable and functional classrooms, the existence of sports facilities and laboratories, the rate of computers per student, and more. the establishment of public kindergartens and public preschools for ages 3-4, special education, support programs, enrichment programs, professional education— all of these significantly lagged behind the jewish. indeed, the state of arab education on all levels is crying out for investment, a situation which is well-documented and known to all. 141 under the cbs system, each town in israel is given a score from 1-10 based on a number of factors such as demographic data, education and academic performance levels, standards of living and income, certain features of the workforce, and the existence and amount of pensions. the cbs consistently places palestinian-arab local authorities among its lowest socio-economic rankings. data for 2004 demonstrates that approximately 45% of arab local councils rank in the two lowest clusters (one and two), and 97% are found in the four lowest clusters. arab communities, as a whole, constitute more than 80% of the total towns and villages among the three lowest clusters. see jabareen, supra note 5, at 382-83. 50 the politics of equality vol. 4:1 greatest in arab areas.142 nonetheless, the final map used by the program did not appear to correspond with this ranking system, nor with the actual needs on the ground. some three months after the program’s approval, adalah filed a petition to the high court of justice on behalf of the higher follow-up committee on arabs in israel and the higher follow-up committee on arab education in israel, challenging the decision to approve the particular set of national priority areas.143 the petition requested that the court nullify the state’s decision on the grounds that it was based on invalid motivations, namely intentional and wrongful discrimination against the palestinian-arab population. hearings on the petition continued for nearly eight years, during which time the decision remained in effect and the program continued to be implemented. finally, on february 27, 2006, the supreme court rendered its decision.144 the justices, for the most part, accepted the petition’s claims of discrimination and ordered the nullification of the state’s decision within a year.145 in a lengthy and detailed opinion, chief justice barak stated unequivocally the opinion of the justices regarding the motivations of the ministers who had approved the “illegal decision.” its illegality, he explained, was based on the fact that it “cannot be reconciled with the principle of equality” and because “its results lead to unlawful discrimination against the arab sector in realizing its right to education.”146 the court went on to hold that the discriminatory result alone was enough to invalidate the decision, regardless of its intent.147 thus, the supreme court held that the state’s decision must be invalidated. in consideration of the fact that the immediate cancellation of the decision would spur “complicated difficulties” within the education systems of the jewish towns that had already planned their budgets based on the discriminatory decision, the court decided to grant the state a grace period and stipulated that “the start of the cancellation of the government decision [would] be upon the passage of twelve months from the day of the rendering of this decision.”148 however, the ministry of education seemed unable to adhere to this timeline or any timeline established by the court.149 following the initial twelve-month period, the state requested a six-month extension. as this date approached, the ministry instead requested permission to implement the decision “gradually,” which, based on the wording of the request, seemed to indicate a four-year period. while the court did not approve the request, it did grant an additional extension through june of 2008. on november 9, 2008, shortly after the extension had expired, the state attorney’s office announced that the state simply could not fulfill its obligation and the court was called to hear explanations regarding                                                                                                                           142 the discriminatory character of the state’s decision on the classification of towns into priority areas can also be found by comparing two of the cities deemed priority area a, natziral illit and migdal ha’emek, with their eleven neighboring palestinian-arab towns, which were placed in the non-priority category. if the motive behind the classification had been geographic, then there would have been no reason to separate the first two jewish cities from their eleven arab neighboring towns; if the division had been based on socio-economic criteria, then there would be all the more reason to include the eleven arab towns in the priority areas. 143 hcj 2773/98 supreme follow-up comm. et al. v. prime minister of israel, amended and resubmitted as hcj 11163/03 supreme follow-up comm., et. al. v. prime minister of israel [2006] (isr.), available at http://elyon1.court.gov.il/files_eng/03/630/111/a18/03111630.a18.pdf. 144 hcj 11163/03 supreme follow-up comm. et al. v. prime minister of israel, judgment [2006] (isr.), available at http://elyon1.court.gov.il/files_eng/03/630/111/a18/03111630.a18.pdf. for additional discussion on this case, see segal, supra note 100, at 102-04. see also karayanni, supra note 100, at 317 (summarizing the main issues addressed by the court and providing commentary on its impact for the palestinian-arab minority). 145 supreme court follow-up comm., supra note 144. 146 id. at para. 16. hcj 11163/03, judgment, para. 16. 147 id. at paras. 18, 19. 148 id. at para. 28. 149 hesketh, supra note 53, at 23. 2013 columbia journal of race and law 51 the state’s failure to implement the judgment. the petitioners requested that the court hold the state in contempt of court. instead, on behalf of the full panel of justices, chief justice beinisch ruled that the court had: [n]o alternative but to point out that the issue before us is a grave expression of the liberty that the respondents have taken upon themselves in not implementing this court’s decision. while the respondents were required to implement the ruling given by the court, they have behaved as if it were a recommendation that may be respected according to their own determination of their priorities.”150 nonetheless, the court obligated the state to implement the judgment during the academic year of 2009-10. in december of 2009, the state proposed a new map of national priority areas. it included some 1.164 million jews and 882,000 arabs (the latter representing approximately 43% of those who reside in the updated national priority areas and 72% of all arabs in israel).151 the priority areas law, enacted in june of 2009 as part of the economic arrangements law for the years 2009-10, stipulates that all prior government decisions on the topic of priority areas, including the discriminatory government decision on benefits and incentives in the area of education, will remain in effect for a period of two and a half years from the date of the new law’s enactment.152 according to this new law, the government decision that was nullified by the supreme court in february 2006 may remain in effect until january 2012. despite the seemingly more objective criteria contained in the new law, an appropriate remedy for the state of palestinian-arab education is far from guaranteed. a gaping loophole written into the law leaves final authority for distribution of the funds to the relevant ministries responsible for any given budgetary allocation. thus, implementation depends, to a certain extent, upon the ‘good-will’ of these ministers and will require constant monitoring. irrespective of the priority areas law, implementation of the decision has yet to take place. the clear and dismal bottom line is that this illegal and discriminatory government decision has remained in place for over fifteen years. what is more, the plan continued to be implemented indefinitely following an unequivocal supreme court ruling that ordered its cancellation. even if the state were to implement the judgment today and put into place a fair and equal plan, the new distribution would not compensate arab students for the budget allocations of which they were unlawfully deprived during the more than decade and a half over which the original program was in place and the judgment went unimplemented. instituting true equality in the distribution of priority areas requires affirmative action for arab towns in order to compensate arab students for past discrimination, such as the type contemplated by the supreme court in the political representation case discussed earlier. beyond its specific failures, the national priority areas case represents a systemic and profound failure regarding the equitable distribution of material resources. while the decision upholds israeli constitutional principles of equality in the realm of material resources, and even though the court condemned the discriminatory result of the plan (regardless of its intentions), it failed to recognize collective palestinian rights, or their right as a group to a status comparable to that of the jewish population. furthermore, even the basic individual right to equality was not upheld in practice, as the judgment has yet to be fully implemented. for all of these reasons, the outcome of this case on both the legal and practical levels represents a particularly grave deprivation of the basic individual and group rights of the palestinian-arab minority.                                                                                                                           150 supreme court follow-up comm., supra note 144, at para. 8. 151 as calculated by michal belikof from the sikkuy organization, january 2010. 152 sawsan zaher, on institutionalized discrimination in the implementation of high court decisions, adalah newsl. issue no. 63 (adalah, haifa, isr.), august 2009, available at http://adalah.org/features/education/sawsan _no _implementation_article_english%5b1%5d.pdf. 52 the politics of equality vol. 4:1 3. case study: legal action regarding allocation for christian and muslim cemeteries a case concerning the allocation of budgets for christian and muslim cemeteries based on a percentage-of-the-population criterion serves as yet another example of an israeli supreme court judgment lacking the necessary teeth to compel implementation.153 in early 1999, the adalah organization petitioned the high court of justice claiming that two clauses of the 1999 budget law were unconstitutional because they allocated funding for only jewish cemeteries (over $4 million usd annually), while neglecting arab muslim, christian, and druze cemeteries entirely. adalah demanded that the ministry of religious affairs establish patently non-discriminatory criteria for the distribution of the funds to the cemeteries of all four sects. in a lengthy decision, the court held that the ministry must distribute the funds according to a proportionality test, based on each sector’s percentage of the population. the court made grandiose statements about true implementation of the principle of equality. justice zamir, writing on behalf of the court, stated: the resources of the state, whether in land or money, as well as other resources, belong to all citizens, and all citizens are entitled to benefit from them in accordance with the principle of equality, without discrimination on the basis of religion, race, gender or other illegitimate consideration. the principle of equality must also guide the legislative authority, which too, like any other authority in the state, must act as a fiduciary to the public in accord with the basic values of the state of israel as a jewish and democratic state, which include equality. . . . such discrimination, particularly if it is methodical, may cause very severe damage, not only to a specific person or a specific entity, but also to the social fabric and the feeling of partnership which is a pre-condition for proper living in community. in any event, such discrimination is illegitimate at its core, from both a moral as well a legal perspective.154 again, however, the state (here the ministry of religious affairs) stalled implementation and the petitioners were forced to file a motion after the judgment had already been rendered, in which they demanded that the court intervene and order the ministry to implement the decision in its 2001 budget. the ministry claimed that the funds were set aside and that the relevant palestinian-arab municipalities and other bodies need only apply in order to receive them.155 yet as of this writing, over a decade after said claim was made, the funding has yet to be transferred to the relevant bodies charged with palestinian-arab cemeteries of the various sects. in fact, the above cases can be added to a long list of rulings concerning allocation of public budgets to the arab community, rendered by the supreme court in the last decade, that have never been fully implemented by the state.156 two salient examples are the case that secured a plan of gradual allocation from the education budget for the purpose of implementing the “shahar” educational                                                                                                                           153 hcj 1113/99 adalah v. minister for religious affairs 54(2) 164 [2000] (isr.), available at http://elyon1.court.gov.il/files_eng/99/130/011/i13/99011130.i13.pdf. 154 id. at para. 3. 155 see equal funding for arab religious cemeteries, adalah, http://www.adalah.org/eng/articles/674/equalfunding-for-arab-religious-cemeteries. 156 id. at paras. 4, 5. 2013 columbia journal of race and law 53 enrichment programs in arab towns and villages within five years, which has not yet been put into practice;157 and the case concerning the urban neighborhood rehabilitation (“shikum skhunot”) program that resulted in a significant reduction in a number of localities where the program operates, rather than it being expanded to arab towns.158 v. conclusion this article has attempted to demonstrate that despite a number of positive rulings in favor of the advancement of palestinian-arab rights, the supreme court in israel has failed in its attempts to grant this minority the full range of collective rights they seek. notwithstanding the intent of the court on the practical and rhetorical levels and, in some cases, operationally, the results were very far from what the justices and petitioners seemingly envisioned. clearly, the state demonstrated a lack of interest in implementing the court’s judgments; however, the court also failed to use all of the tools at its disposal to ensure that the spirit of its rulings would be translated into action on the ground. this oversight on the part of the court appears even more negligent—and perhaps even deliberate—as more and more cases regarding palestinian-arab minority rights were heard before the court and resulted in lack of implementation. as aforementioned, the israeli high court of justice has a wealth of procedural and substantive options available, including issuing temporary injunctions and stays of execution; leaving cases open on the docket; ordering regular updates from the parties; and playing the role of implementation supervisor. as a pattern began to emerge, in which the state was reluctant to implement the court’s judgments, either within a timely manner, according to their full meaning, or at all, it was up to the court to take more pro-active measures in order to fully enforce its judgments. for instance, in the acri case regarding representation on the israel land council, the court might have ordered consultation with various leaders of the palestinian-arab community prior to the appointment of council members in order to ensure that the appointments would be effective and truly representative, despite their low number (two of the twenty-four members). in the cases regarding adding the arabic language to signposts in municipalities and on national road signs, the court could have ordered consultation with arabic language professionals prior to finalizing the text that would be added to ensure its linguistic and cultural accuracy and avoid the mockery made of the court’s decision and the case’s petitioners. given all of these previous experiences, in the most recent principled ruling regarding budget allocations for education the court could have implemented better judicial oversight over the state. it could have issued an interim injunction to freeze the funds allocated for the program, or it could have exhibited less latitude in granting the state extensions to implement its decision. all of these areas of leniency weakened the strong statements made by the justices, belittled the importance of the issue among the palestinian-arab population, and diluted the resultant outcome. of course, the court does not operate in a vacuum. it faces social, political, and other external influences that constrain its authority, limit its ability to maneuver and temper its impact. it seems, for                                                                                                                           157 hcj 2814/97 the follow-up comm. for arab educ. v. the ministry of educ. 54 p(3) pd 233 [2000] (isr.). in the 1970s, the ministry of education launched academic enrichment programs designed to help socioeconomically weak communities. however, since their inception, these flagship programs have only been implemented in the jewish educational system and thus have excluded all arab schools. this exclusion contradicted the fact that palestinian communities rank at the bottom of the socio-economic ladder, according to all official statistical and sociological data in israel. see yousef jabareen, law and education: critical perspectives on arab education in israel, 48 am. behav. scientist 1052, (2006) (arguing that the israeli legal system’s narrow formal view on educational equality for palestinian children is unlikely to bring about societal transformation in the struggle for education equality). 158 hcj 727/00 the national committee of arab mayors v. the minister of housing and construction 55(2) pd 79 [2001] (isr.). see also ilan saban, after the storm? the israeli supreme court and the arab-palestinian minority in the aftermath of october 2000, 14 isr. aff. 623, 634 (2008) (explaining the supreme court’s inability to ensure fair and proportionate allocation of the budget to the palestinian-arab minority). 54 the politics of equality vol. 4:1 example, that public opinion, and certainly the stance of the legislative and executive branches, are not yet ready for implementation of full civil rights for the palestinian-arab minority. indeed, the limited outcome of seemingly groundbreaking decisions reflects unwillingness, at this stage, on the part of the public and the state to create a situation of true, substantive equality between majority and minority groups. beyond legal action, much groundwork still needs to be laid among the israeli public and its officials in order for the court’s decisions to have any meaningful effect. nevertheless, the palestinian-arab minority in israel, like minorities in other countries, has limited avenues for seeking justice. as was discussed above, prejudice against palestinian-arabs in israel distorts the israeli political process as described by professor john hart ely’s process-oriented theory,159 thereby reducing any chance of making headway via the political channels. the disadvantaged status of minority groups vis-à-vis both the public and elected officials, and their accompanying distress, should trigger the courts to apply both stricter review and heightened sensitivity to the minority’s position in society when reviewing government actions in cases that relate to such groups. such acute awareness, alongside a critical examination of government actions, should be aimed at providing redress for political injury caused to minorities, correcting existing injustices in government systems and agencies,160 and creating a framework for wider change. unfortunately, however, the israeli supreme court views its role narrowly. an analysis of the rulings discussed in this article indicates that supreme court justices are more concerned with a strict interpretation of the law than with being at the vanguard of a broader process of social change. while more favorable decisions promoting equality could have been made without creating undue legal or institutional upheaval, the justices were seemingly reluctant to use their authority and discretion to protect the rights of the palestinian-arab minority as a group. in light of the inequality inherent in the system, it is incumbent upon the supreme court to use its authority to protect those disenfranchised by the system. even where political and grassroots advocacy are necessary to engendering sustainable change, bold and deliberate action by the courts is a necessary piece of the puzzle that will ensure that each and every citizen benefits from their most basic right to equality before the law. the courts must engage in proactive strategies and use the full strength of the law—along with all of the legal tools available to them—to promote and guarantee group-based equality for national minority groups. they must lead the call for change by taking a more active approach in promoting immediate and effective outcomes and by serving as a watchdog for recalcitrant government authorities that stand in the way of social transformation. one can only hope that the courts in israel and elsewhere will adopt new, wide-ranging and transformative visions, which will help to engender real change in the lives of national minorities. it seems that creating social transformation requires a shift in public opinion, whereby there is broad-based agreement on the mutual benefit of advancing the status of the minority in order to advance society as a whole. an increase in judicial “robustness” and a willingness to adapt the law to such a shift is also required. ultimately, only this attitudinal shift accompanied with an attendant change in the laws will lead to the realization of both individual and collective minority rights in israel and elsewhere.                                                                                                                           159 ely, supra note 23, at 145-70. 160 id. at 153-58. vol 2.1-final proof 2012 columbia journal of race and law 167 bringing home the bacon : a case for applying the new jersey urban school funding remedy from abbott v. burke to poor rural school districts kyle e. gruber* in 1997, seventeen poor rural school districts in new jersey filed a lawsuit seeking a declaration that their districts were in violation of its students’ state constitutional right to a “thorough and efficient” education, and a financial remedy akin to the one granted to poor urban districts in abbott v. burke. fifteen years and four decisions later, these districts are still inadequately funded and providing a constitutionally inadequate education to the students therein. this article analyzes the state of education funding law in new jersey, under the governing abbott v. burke decisions, and argues that there is no significant legal distinction barring the poor rural districts from access to the same, or similar, remedial measures. i. introduction.................................................................................................................171 ii. education finance reform in new jersey: a judicial history..........172 a. 1970-1975: the beginning of education equity litigation in new jersey.............................................................................................................................172 1. serrano, rodriguez: the beginning and end of a federal right to education........................................................................................172 2. robinson: the “thorough and efficient” clause and the establishment of a state right to education..............................174 3. the end of the robinson litigation: the public education act of 1975...............................................................................................................175 b. 1976-1990: abbott v. burke and the urban dilemma................................177 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! *! j.d., may 2012, columbia law school. b.a., political science, may 2008, rutgers university. thanks to michael rebell for valued guidance, dating back to my 2010 internship with his organization, the campaign for educational equity, in researching this topic. thanks to priscilla orta-wenner for her assistance and encouragement throughout the writing process, and to adya baker, for her tireless editorial assistance. i also thank patricia iorio for her unwavering support and confidence. 168 bringing home the bacon vol. 2:1 1. the post-robinson plight of urban districts................................177 2. abbott ii: the court declares education funding unconstitutional...........................................................................................178 3. abbott ii: the urban evidence and the limited remedy.........179 c. the 1990s: the court asserts control in abbott..................................183 1. abbott iv: enough is enough....................................................................183 2. abbott v: the court orders unprecedented remedial measures................................................................................................................186 iii. violations of the constitutional right to a “thorough and efficient” education in new jersey’s non-urban school districts............................................................................................................................186 a. bacon v. new jersey department of education: the rural districts petition for inclusion in the comprehensive abbott remedy..........................................................................................................................187 1. the beginning of the bacon litigation: minor victories, major setbacks...................................................................................................187 2. the breakthrough: bacon iii and bacon iv......................................189 3. the purgatory: state in violation of constitution in regard to bacon districts, but no remedy......................................190 4. the aftermath and current status: further delays and deprival.................................................................................................................192 b. the urban/rural distinction of abbott v. burke and bacon v. nj doe..................................................................................................................................193 1. why does abbott only apply to urban districts?.........................193 2. similarities of the abbott and bacon districts...........................194 iv. a proposal: disregard the urban criteria and grant the abbott remedy ...............................................................................................................................195 a. the constitutional right must take precedent over urban classification..........................................................................................................195 b. implement the abbott remedy because the remedy can work...............................................................................................................................197 v. conclusion......................................................................................................................199 2012 columbia journal of race and law 169 i. introduction must the state intervene to protect, to the absolute fullest, the paramount constitutional right to a “thorough and efficient” education belonging to all new jersey students attending constitutionally deficient schools? should an impoverished town that is incapable of funding a constitutionally adequate education for its students be excluded from constitutionally mandated remedial funding based on its urbanization and demographics? these are the questions raised by bacon v. new jersey department of education.1 bacon challenges the new jersey supreme court to extend the same constitutional safeguard of the right to a “thorough and efficient” education—which is the baseline level of education guaranteed by the new jersey state constitution, also described as the level needed to prepare children to function in modern society—and to provide the funding remedies that poor urban districts receive (hereinafter the abbott districts) to poor rural school districts (hereinafter the bacon districts) as well. in 1973, the new jersey supreme court ruled in robinson v. cahill2 that the education clause in the new jersey state constitution provided a substantive right for students, ages five to eighteen, to receive a mandatory minimum level of education. if a school was incapable of providing an education that was constitutionally satisfactory, then the school district, and therefore the state of new jersey, was guilty of a constitutional violation. over the next twenty-eight years, in two separate lines of litigation— robinson, which established the constitutional right to education in new jersey, and abbott v. burke in 1990, which mandated explicit and direct funding increases to thirty urban school districts (hereinafter the abbott districts)—the new jersey supreme court repeatedly found that urban school districts were severely underfunded and the resulting educational output was a definitive violation of the constitutional right to a “thorough and efficient” education.3 the abbott litigation has generated countless law review articles, books, colloquia, and informal debate on a wide range of issues, from school funding to the effectiveness of the judiciary in crafting a substantial remedy. most importantly, a full twenty-one decisions have been handed down in the abbott litigation, with the most recent new jersey supreme court ruling issued in may of 2011. the remedy crafted by the state supreme court has been meticulously refined over the twenty-one decisions, and whenever the abbott districts believe their remedy is threatened by the state legislature’s actions, they seek redress from the judiciary. meanwhile, in 1997, a group of rural districts filed suit, to little fanfare, seeking an extension of the school funding remedy that the new jersey supreme court had granted the poor urban districts in the abbott cases. the litigation, bacon v. new jersey department of education, languished in new jersey’s administrative law courts for eleven years. the common thread throughout the four bacon rulings was delay. ultimately, the judiciary found constitutional violations in all of the bacon districts—similar in kind, though not in magnitude—to the violation previously found in the abbott districts. fourteen years after the filing of the first complaint and three years after the latest court decision in their favor, the bacon districts have yet to receive the funding remedy their students so desperately need and to which they are constitutionally entitled. this note argues that the rural school districts in new jersey, known as the “bacon districts,” must receive a monetary remedy to redress the constitutional violation of the right to a “thorough and efficient” education, a right which students in these districts are being denied. part ii will summarize !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 bacon v. n.j. dep’t of educ. (bacon i), oal dkt nos. edu 2637-00–2656-00, 2002 wl 31232958 (n.j. adm. sept. 23, 2002). 2 robinson v. cahill (robinson i), 303 a.2d 273 (n.j. 1973). 3 abbott v. burke (abbott ii), 575 a.2d 359 (n.j. 1990). 170 bringing home the bacon vol. 2:1 and analyze the lengthy judicial history of education finance litigation in the state of new jersey. part iii will introduce the bacon litigation and, through an analysis of the decisions and an invocation of the judicial standards set forth in abbott, demonstrate how the level of education provided in the bacon districts was and still is constitutionally inadequate, and thus requires a remedy. part iv will discuss the reasons why the abbott remedy should be extended to the bacon districts. ii. education finance reform in new jersey: a judicial history4 part ii provides an overview of the history of education finance litigation in new jersey, starting from 1970 and ending at 1998. the most important judicial decisions in this area prior to the start of the bacon litigation are examined for their legal significance, in chronological order. the foundation of knowledge necessary to examine the bacon litigation will be erected here, and by the end of the section, the reader will have a working understanding of the legal reasoning behind the holdings in the landmark robinson and abbott cases. the reader will also gain an appreciation of the legal struggle involved in earning and safeguarding a new jersey student’s constitutional right to a “thorough and efficient” education. a. 1970-1975: the beginning of education equity litigation in new jersey 1. serrano and rodr iguez : the beginning and end of a federal right to education the story of new jersey educational equity litigation has roots in the early 1970s in the courthouses of los angeles county. the landmark decision from the california supreme court in serrano v. priest5 resulted in a deluge of attacks on state funding statutes for public schools throughout the country.6 the plaintiffs in serrano were students in california public schools who claimed that the california regime for financing public schools violated the equal protection clause of the fourteenth amendment. california’s plan for financing public schools, which “relie[d] heavily on local property taxes,” resulted in “substantial disparities among individual school districts in the amount of revenue available per pupil.”7 the plaintiffs alleged that the immensely disparate levels of funding8 invariably contributed to the disparate levels of education offered to students in california, resulting in a violation of the equal protection clause. in finding for the plaintiffs on a motion to dismiss and remanding the case for trial, the california supreme court rested its opinion largely upon its decision to apply strict scrutiny as the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 for an excellent historical narrative of the education litigation in new jersey, including biographical descriptions of the key political and legal players, see deborah yaffe, other people’s children: the battle for justice and equality in new jersey’s schools (2008). 5 serrano v. priest, 5 cal.3d 584 (cal. 1971). 6 challenges to state funding regimes were brought in over thirty states, including new jersey. in this sweeping reform period of the early 1970s, prior to the rodriguez case, see infra pp. 6–8, only two states where challenges took place, new york and indiana retained their school finance statutes unaltered. paul l. tractenberg, new jersey: robinson v. cahill: the “thorough and efficient” clause, 38 law & contemp. probs. 312, 312–13 (1974). 7 serrano, 5 cal.3d at 590. 8 by relying on local property taxes, individual school districts were dependent on the assessed valuation of the real property within the district’s borders. beverly hills, with an assessed tax base value of $50,855 per student, spent $1,231.72 per student in 1970 on education. by comparison, a school district in los angeles county possessed an assessed value of $3,706 per student, and spent $577.49 per student in that same academic year. id. at 594. 2012 columbia journal of race and law 171 appropriate judicial standard of review. first, the court interpreted united states supreme court jurisprudence as considering wealth to be a suspect classification.9 second, the court ruled that education was a fundamental interest.10 with strict scrutiny therefore established, the court had no difficulty in finding that the government lacked any compelling interest in establishing a system that heavily relies upon local property taxes for school funding. challenges to education funding regimes were then filed in many states, utilizing the legal reasoning from the california supreme court in serrano and relying upon the equal protection clause as their primary legal strategy.11 eventually, one of the education reform cases filed in the wake of serrano reached the united states supreme court in the case of san antonio independent school district v. rodriguez.12 the case originated in san antonio, texas, and challenged a school funding system and an overall educational dilemma very similar to the one found in serrano: an overreliance on local property taxes which created a disparity in wealth among districts. in rodriguez, however, the court decided that it was improper to invoke the strict scrutiny test to review the challenge to texas’s school funding laws. rejecting the theories by which the serrano court established strict scrutiny as the requisite standard, the court ruled that the appellants in rodriguez failed to establish education as a fundamental right under the federal constitution13 and also that the appellants did not qualify as a suspect class based on wealth considerations.14 from there, the court applied the rational basis test, a significantly weaker standard that merely requires the government to prove a legitimate state interest in the chosen legislation. the court found that local autonomy over school funding and curriculum by way of property taxation was a legitimate state interest, citing the tradition and importance of local control over education.15 reliance upon !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9 id. at 597 (“[t]he united states supreme court has demonstrated a marked antipathy toward legislative classifications which discriminate on the basis of certain ‘suspect’ personal characteristics. one factor which has repeatedly come under the close scrutiny of the high court is wealth. ‘lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored.’” (quoting harper v. virginia bd. of elections, 383 u.s. 663, 668 (1966) (invalidating the virginia poll tax, finding that payment of a fee to determine a person’s qualification to vote to be a “capricious or irrelevant factor.”)) 10 “[t]he distinctive and priceless function of education in our society warrants, indeed compels, our treating it as a ‘fundamental interest.’” id. at 608–09. 11 the serrano decision was both groundbreaking and significant. time magazine described it as “[p]otentially . . . the most far-reaching court ruling on schooling since brown v. board of education in 1954.” tractenberg, supra note 6, at 312 n.2 (citing education: dividing the cake, time, sept. 13, 1971, at 47). 12 san antonio indep. sch. dist. v. rodriguez, 411 u.s. 1 (1973). 13 “education, of course, is not among the rights afforded explicit protection under our federal constitution. nor do we find any basis for saying it is implicitly so protected.” id. at 35. 14 “the texas system does not disadvantage any suspect class. it has not been shown to discriminate against any definable class of ‘poor’ people or to occasion discriminations depending on the relative wealth of the families in any district.” id. at 1. 15 in addressing the importance of local autonomy over school spending, the court referenced justice brandeis’s observation that “one of the peculiar strengths of our form of government [is] each state’s freedom to ‘serve as a laboratory; and try novel social and economic experiments.’” rodriguez, 411 u.s. at 50 (quoting new state ice co. v. liebmann, 285 u.s. 262, 311 (brandeis, j., dissenting)). the majority in rodriguez welcomed state-by-state differences in education finance laws, in particular: “[n]o area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education.” id. at 50. this attitude has resulted in the capricious nature of education funding. 172 bringing home the bacon vol. 2:1 property taxes as a means of financing public education thus survived judicial scrutiny under the rational basis standard. rodriguez shut down one means of attacking state education funding laws.16 in addition, rodriguez foreclosed any future litigation regarding the violation of federal constitutional rights concerning educational equity.17 2. robinson : the “thorough and efficient” clause and the establishment of a state right to education shortly after rodriguez, the new jersey supreme court established a new means of attacking education funding on the state level. in launching an attack on the same disparate reality found in california and texas, plaintiffs in the 1973 new jersey case of robinson v. cahill18 relied upon the same legal arguments that had been successful in serrano. unfortunately for the plaintiffs, two weeks before the new jersey supreme court handed down the decision in robinson, the united states supreme court issued its ruling in rodriguez, preempting the new jersey court and defeating the federal equal protection claim alleged by the plaintiffs in robinson.19 nevertheless, the new jersey supreme court struck down the state’s education funding scheme as unconstitutional. to do so, the majority relied upon education amendments made to the new jersey state constitution in 1875 which mandated that the state provide a “thorough and efficient” school system.20 the amendments and the language therein allowed the new !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16 for a detailed look at the rodriguez litigation and its impact on the strategies taken in education litigation in the following decades, see paul a. sracic, san antonio v. rodriguez and the pursuit of equal education: the debate over discrimination and school funding (2006). 17 one of the lasting results of rodriguez, coupled with the developments in subsequent state litigation, is that the fundamental right to education is inconsistently applied. the right is enjoyed differently by students depending on the state in which they live and whether the state’s judiciary has acknowledged a fundamental right to education and ruled in favor of challenges to the state’s education finance system. for example, one of the more swift and efficient declarations of education equity occurred in kentucky during the late 1980’s. rose v. council for better educ., 790 s.w.2d 186 (ky. 1989). compare new york, where claims of unconstitutional school funding were rejected throughout the 1980’s and the right to a “sound basic education” was later won in the 1990’s, campaign for fiscal equity, inc. v. state (cfe i), 86 n.y.2d 307 (1995); and finally, the funding apparatus was declared unconstitutional after lengthy discovery culminated in a 2003 ruling. campaign for fiscal equity, inc. v. state (cfe ii), 100 n.y.2d 893 (2003). speaking to the results due to inconsistencies from rodriguez, several states have upheld the constitutionality of their education finance system. see, e.g., scott v. commonwealth, 443 s.e.2d 138 (va. 1994) (high court failed to find evidence of the funding system causing a constitutional harm); vincent v. voight, 614 n.w.2d 388 (wis. 2000) (high court refused to hear the litigation on grounds of non-justiciable claims); marrero v. commonwealth, 709 a.2d 956 (pa. 1998) (ruling that claim was non-justiciable and dismissing the case with prejudice because funding was a legislative function not subject to judicial discretion); see also comm. for educ. rights v. edgar, 672 n.e.2d 1178 (ill. 1996) (finding that disparities in wealth from property taxes did not violate state constitutional education clause and that evaluating school quality and school reform were legislative and not judicial matters). in the wake of rodriguez, a student’s access to equity in education funding is dependent upon location. for an overview of the education equity litigation and the current status of education funding in all fifty states, see generally access: education finance litigation, school funding policy and advocacy, national education access network, http://www.schoolfunding.info/states/state_by_state.php3 (last visited mar. 10, 2011). 18 robinson v. cahill (robinson i), 303 a.2d 273 (n.j. 1973) 19 tractenberg, supra note 6, at 321. 20 robinson i, 303 a.2d at 285. the new jersey state constitution clause reads: “the legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the state between the ages of five and eighteen years.” n.j. const. art. viii, § 4, cl. 1 (emphasis added). 2012 columbia journal of race and law 173 jersey supreme court to establish a state constitutional right to education, phrased as “thorough and efficient,” despite the rodriguez court’s failure to acknowledge the existence of a federal right to education.21 the court did not define the phrase “thorough and efficient” with any particular precision or depth in this first case, beyond indicating that it was an education that prepared children to be functioning citizens in society.22 for the moment, the majority also declared that the state constitution’s clause required an “equal educational opportunity” for all new jersey students.23 the robinson decision in 1973 laid the legal groundwork for the forthcoming abbott decisions by providing the blueprint for successful educational equity litigation. the majority explicitly held that, if a minimum level of education was not provided to the students, then the state was in violation of the constitution: “[a] system of instruction in any district of the state which is not ‘thorough and efficient’ falls short of the constitutional command.”24 further, the majority wrote that where education fails to meet the constitutional requirement, “[w]hatever the reason for the violation, the obligation is the state’s to rectify it,” even if the state delegated its duty to a local government.25 consequently, this last phrase holds the state government liable for instances of constitutionally inadequate education provided by local school districts under a system that relies heavily upon property taxes to fund public education. 3. the end of the robinson litigation: the public education act of 1975 the second robinson decision in 197326 held that the new jersey legislature was in dereliction of its duty to provide all new jersey students a “thorough and efficient” education system. the court wanted the legislature to respond to the problem by devising and enacting a remedy to address the funding disparity, even issuing a decision in robinson iii to grant more time for proper action, but the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 21 all 50 states have language within their constitutions that address education. 22 robinson i, 303 a.2d at 295. “the constitution’s guarantee must be understood to embrace that educational opportunity which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor in the labor market.” id. the phrasing suggests an evolving standard that expands as our society grows more complex and, in particular, the global labor market requires increasingly higher-level skills to compete for employment. the end result would be a flexible doctrine that guarantees an ever-increasing baseline level of education, one reflecting the changing demands of society. in cfe ii, thirty years after the robinson i decision, the new york court of appeals rejected the state’s argument that an eighth-grade level of education was sufficient for making students function productively in civic activities and able to compete in employment. cfe ii, 100 n.y.2d at 906. language from the majority’s concluding statements imply an evolving standard, as described above: “a sound basic education back in 1894, when the education article was added, may well have consisted of an eighth or ninth grade education, which we unanimously reject. the definition of a sound basic education must serve the future as well as the case now before us.” id. at 931. for further discussion on why the constitutional floor for education must rise to meet society’s demands, see id. at 934–36 n.7–9 (citing expert analysis on the difficulties faced by people without a high school education in modern society). 23 robinson i, 303 a.2d at 294 (emphasis added). 24 id. 25 id. 26 robinson v. cahill (robinson ii), 306 a.2d 65 (n.j. 1973). 174 bringing home the bacon vol. 2:1 effort was for naught: due to gridlock and disagreement, the legislature failed to act.27 the plaintiffs returned to court and the decision in robinson iv jolted the legislature into action: the court approved a provisional remedy that would have elevated available funding per pupil by nearly fifty percent.28 the legislature finally acted in response to robinson iv and passed the public school education act of 1975 (hereinafter the 1975 act).29 the 1975 act purported to increase aid to the poorest school districts, raise per-pupil expenditures to an acceptable level and thus remedy the violation of the constitutional right to education. the 1975 act also contained an early attempt at defining what is required for the existence of a “thorough and efficient” educational system: “free public schools shall provide to all children in new jersey, regardless of socioeconomic status or geographic location, the educational opportunity which will prepare them to function politically, economically and socially in a democratic society.”30 to achieve this balance, the 1975 act would raise state education aid for municipalities to a level that would achieve constitutionally satisfactory funding for every school district in new jersey.31 since school districts relied almost exclusively on local property tax bases for funding, the 1975 act aimed to share the responsibility of school funding between local and state governments, retaining but supplementing the old methods of generating revenue.32 central to the successful implementation of the 1975 act was the required increase in revenue for raising per-pupil expenditures. the court noted that, in the absence of funding, “[the 1975 act] could never be considered [to be in] constitutional compliance” with the requirement that the state !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 27 robinson v. cahill (robinson iii), 335 a.2d 6, 7 (n.j. 1975). court orders requesting or even demanding a legislative overhaul of the education budget and greatly increased spending can result in great delay for myriad of reasons. see also campaign for fiscal equity, inc. v. state (cfe iii), 8 n.y.3d 14 (2006). cfe iii was the third decision in the cfe litigation and came three years after cfe ii, 100 n.y.2d 893 (2003), in which the court declared the state education funding scheme unconstitutional and ordered the legislature devise a remedy. cfe iii was litigated because the legislature failed to act in the three-year interim, due to disputes within the legislature over the level of funding necessary to satisfy the state high court’s order. 28 robinson v. cahill (robinson iv), 351 a.2d 713, 720–22 (n.j. 1975). guaranteed valuation rate per pupil was $43,000 for the 1975–76 academic school year; the court order would have increased that total by over fifty percent to $67,000. 29 n.j. stat. ann. § 18a:7a-1 (repealed 1996). the 1975 act was an example of political pragmatism, as it contained something for all the political parties involved in passing the legislation. where this attempt to please everyone proved problematic was in securing support for establishing the new jersey state income tax, which was the crucial mechanism to fund the bill. the new jersey education association (njea), the formidable teachers union, aggressively fought against demands from state republicans for accountability on spending by measuring educational outputs via standardizing testing and graduation rates, in return for their votes on establishing the state income tax. barbara g. salmore & stephen a. salmore, new jersey politics and government: the suburbs come of age 315–18 (2008). 30 robinson v. cahill, 355 a.2d 129, 132 (n.j. 1976) (robinson v). this definition, like others prior, is quite broad in scope and would require judicial interpretation to establish a baseline requirement. 31 id. at 137. 32 the shared responsibility provision was the state’s attempt to split the financial burden of providing a constitutionally adequate education with the local school districts. the provision was paramount to the 1975 act’s remedy for a constitutionally inadequate education system. plaintiffs challenged the constitutionality of this provision, arguing that it was the state attempting to abandon its full constitutional duties to students. robinson v, 355 a.2d at 133. the court rejected these claims and upheld the 1975 act as constitutional on its face. 2012 columbia journal of race and law 175 provide a “thorough and efficient” education to all students.33 thus, the court ruled that the 1975 act was constitutional on its face, however accompanying this ruling was a stern warning: if the legislature failed to enact legislation that fully funded the 1975 act, the court would, in the absence of a showing of cause, implement its own solutions.34 b. 1976-1990: abbot t v . burke and the urban dilemma 1. the post-robinson plight of urban districts in 1981, the education law center (elc) 35 filed the first abbott v. burke case (abbott i), alleging that the 1975 act established an unconstitutional school funding system in new jersey.36 six years after the new jersey legislature’s attempt to ameliorate the unconstitutional school funding scheme identified in the robinson litigation, the elc presented overwhelming statistical evidence that a wide gulf in education funding still existed between two distinct groups of school districts: the poor urban cities and their wealthier suburban satellite towns.37 abbott i was brought on behalf of four plaintiff-students in urban districts and the lawsuit alleged that the funding regime in place was unconstitutional as applied to these poor urban districts.38 from the beginning, the plaintiffs’ focus was on correcting the injustice of a constitutionally inadequate education provided to students in urban school districts. this focus has carried throughout the entirety of the abbott litigation history.39 the evidentiary record created by the plaintiffs’ initial focus in abbott i has guided the court in the twenty-one decisions that followed. plaintiffs introduced evidence in abbott i demonstrating that the gap in per-pupil expenditure had actually increased after the passage of the 1975 act. dividing the state’s school districts into seven groupings based on wealth, the plaintiffs alleged that weighted per-pupil expenditures in the wealthiest !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 33 id. at 131–32. 34 the court outlined three steps it was prepared to take, declaring that it would “order one or more” as it saw fit, barring a showing of cause by the legislature that explained the delay in funding the 1975 act and demonstrated why such moves were unnecessary. id. at 139. the three orders were: a redistribution of state aid monies as the court saw necessary to satisfy the 1975 act; order injunctive relief deemed “appropriate and necessary”; and order other relief as deemed “appropriate and necessary.” id. 35 professor paul tractenberg, a faculty member at the rutgers school of law-newark, founded the elc in 1973 to concentrate the legal efforts in combating “new jersey’s discriminatory practice of funding suburban schools at a much higher level than urban schools.” marilyn morheuser, who was named executive director in 1979, was a former law student of professor tractenberg. history of the education law center, educ. law ctr., http://www.edlawcenter.org/about/mission-history.html (last visited jan. 13, 2012). 36 abbott v. burke (abbott i), 495 a.2d 376 (n.j. 1985). 37 id. at 287 (citing abbott v. burke, 477 a.2d 1278 (app. div. 1984) (segments of superior court decision summarizing the statistical data provided by plaintiffs at trial)). 38 for a more detailed description of raymond abbott and the other plaintiffs in the abbott case, see yaffe, other people’s children, supra note 4, at 110–44, 214–48, 304–21. 39 in leading the education law center (elc) through the abbott litigation in the 1980s, ms. marilyn morheuser imparted on the organization her indomitable spirit and zeal, despite concerns over her own lack of adequate funding to fight for adequate funding for the state’s poor urban students. as a result, the elc believed “[their fight] was a holy struggle in which they occupied the moral high ground.” yaffe, other people’s children supra note 4, at 153–54. 176 bringing home the bacon vol. 2:1 group was $1,681 in 1975�76, while the poorest group spent $1,372; a difference of $309. in 1979�80, however, the wealthiest group of districts spent $2,529 per-pupil, compared to $1,924 per-pupil in the poorest group: a difference of $605.40 the legislature designed the 1975 act to close the spending gap between the richest and poorest districts in new jersey, but the gap was still increasing. at the heart of the initial abbott filings, however, was the claim that the 1975 act still relied too heavily upon local property taxes for the bulk of school funding. under the 1975 act, determinations of state aid to local districts used the local property tax base as a factor.41 exemplifying the funding disparity that still existed despite the legislature’s efforts in 1975, the poorer districts were spending an estimated $600 less per pupil while taxing its citizens nearly seventy cents more per $100 of assessed property value ($1.65 per $100 for poor districts; $0.97 per $100 for wealthy districts).42 because of the robinson litigation, increased state aid to municipalities mandated by the 1975 act fell far short of equity in funding, despite contributing more state education aid than ever before.43 2. abbot t ii : the court declares education funding unconstitutional in abbott i, the court rejected motions to dismiss from the state and remanded the matter for a trial to establish an evidentiary record before the case inevitably returned to the new jersey supreme court.44 after a nine-month trial, which included daunting amounts of witness testimony and evidence,45 administrative law judge (alj) steve lefelt produced a massive 607-page decision in favor of the elc—a decision that “rejected virtually all of the state’s case.”46 because of the elc’s pleadings and the plaintiffs attached to the abbott litigation, the alj’s fact-finding focus was primarily on the poor urban districts. paramount to the alj’s reasoning was a finding that overreliance on local property taxation meant that citizens in urban districts, taxing themselves at a far higher rate than their suburban !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 40 abbott i, 495 a.2d at 386 n.2. 41 robinson v, 355 a.2d 129, 136–38 (n.j. 1976). 42 a short history of school finance litigation in new jersey, 1970–2009: the 1980s: abbott v. burke, deborahyaffe.com, http://www.deborahyaffe.com/finance/index.html (last visited jan. 13, 2012). 43 abbott i, 495 a.2d at 386 n.2 (1985). the 1975 act did not prevent the funding gap from increasing, but it did slow the rate at which it did. the second-poorest grouping of districts actually had smaller weighted per-pupil expenditures than the poorest grouping because the 1975 act sent larger amounts of state aid to the poorest districts. the data suggests that, in the absence of any reform resulting from the robinson cases, the gap between the very richest and very poorest would have been even larger. 44 in abbott i, the new jersey supreme court ordered the abbott litigation remanded to an administrative law court for initial hearings in order to build a “firm factual foundation before [the new jersey supreme court] ruled on abbott’s merits.” yaffe, other people’s children, supra note 4, at 147. see abbott i, 495 a.2d at 386 n.2 (1985). 45 yaffe, supra note 4, at 166. the initial trial featured 99 witnesses, 745 exhibits of evidence, over 16,000 pages of testimony, included 160 factual findings from the alj “on everything from the validity of competing statistical methods to the prevalence of mismanagement in urban districts.” id. at 167, 168. further exemplifying ms. morheuser’s devotion to the cause, she seemed to require her witnesses to pass an ideological purity test. she once stated that “as we come to zero hour [prior to trial], i am more and more convinced that we need true believers as witnesses.” id. at 153. 46 id. at 168. 2012 columbia journal of race and law 177 counterparts, could never close the funding gap that existed no matter how hard they tried.47 the state appealed the decision. as anticipated, the new jersey supreme court heard the case on appeal from the alj and, relying upon the extensive factual record established at trial, issued its landmark ruling in favor of the plaintiffs in abbott ii.48 the court ruled on a number of issues in abbott ii that continue to impact education law and school finance in new jersey to this day. for one, the court rejected the state’s assertion that per-pupil expenditure calculations should take into account any aid from the federal government that a district receives for its schools.49 the court wanted to divorce new jersey school funding from the dangers of “substantial fluctuation” in federal government spending.50 second, in addressing the plaintiffs’ complaints that the 1975 act was still too reliant upon revenue generated by local property taxes, the court agreed, stating that “while local taxation no longer has the same impact [as it did prior to robinson], it is still [a] significant” factor in determining the total funding available for a school district. 51 overall, the court concluded that the failure of schools to provide a constitutionally adequate education to students in poor urban districts was invariably related, at least in part, to the lack of available funding. in short, regardless of debates about how significant funding levels are in providing a quality education, it is inarguable that funding matters.52 the court declared that “[t]he failure [of our school systems] has gone on too long; the factors are ingrained; the remedy must be systemic. the present scheme cannot cure it.”53 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 47 id. at 169. 48 abbott v. burke (abbott ii), 575 a.2d 359 (n.j. 1990). 49 no child left behind act (nclb), pub. l. no. 107-110, §§ 1001-02, 115 stat. 1425 (2002). nclb is the current reauthorization of the 1965 elementary and secondary education act (esea). the federal government disperses funds to districts that qualify as disadvantaged under the nclb criteria. at the time of trial, the four districts which the plaintiffs represented all received federal education aid under the iteration of esea then in effect. at the time, federal esea funding amounted to five percent of the districts’ current expense budgets, as compared to a nationwide average of eight percent. if federal funds were factored in, the disparity between poor and rich districts “decreased, sometimes dramatically.” nevertheless, the court reasoned that the “thorough and efficient” clause requires the state to provide an adequate education without any federal assistance whatsoever. abbott ii, 575 a.2d at 380–81. 50 abbott ii, 575 a.2d at 381 n.14. the court believed a remedial funding framework whereby the poorest districts receive federal aid as supplementary but separate from their needs as calculated by the state would result in greater overall funding for said districts. “if new jersey’s funding scheme were equal and fair, which it is not, federal aid would continue, and together with state and local expenditures it would provide an even greater opportunity to educate disadvantaged children” id. at 381 (emphasis added). 51 id. at 384. 52 the state argued that, even though children in the poorest urban districts generally perform worse than their counterparts in wealthy suburban districts, plenty of students in the poorest districts nevertheless succeed despite the conditions. the court dismissed this as irrelevant, noting that “[the] constitutional mandate does not allow us to consign poorer children permanently to an inferior education on the theory that they cannot afford a better one or that they would not benefit from it.” id. at 385, 386. 53 abbott ii, 575 a.2d 359, 384 (n.j. 1990). 178 bringing home the bacon vol. 2:1 3. abbot t ii : the urban evidence and the limited remedy faced with the tremendous evidentiary record detailing the plight of poor urban districts in new jersey established by the trial court, the court’s abbott ii decision explicitly limited its remedy to twentyeight poor urban districts, now called the abbott districts.54 these districts were selected after an analysis of the statistical evidence compiled by the new jersey department of education (nj doe). evidence of the constitutional violations was found in a number of categories, including the following: impoverished communities and school funding, standardized test results, and crumbling facilities. the nj doe devised its own test based on multiple criteria to assign a value and ranking to each school district in the state based on socioeconomic status, and from there, sorted the districts into district factor groups (dfgs).55 districts received a dfg letter grade to denote the group to which they belonged on a scale from a to j, a representing the poorest districts and j the wealthiest.56 these classifications played a significant role in providing evidence to the court of a constitutional violation to the right to a “thorough and efficient” system of education in the poor urban districts. it is important to note that the fifth and sixth criteria, density and urbanization, worked against demonstrating the poverty of non-urban districts in new jersey. if a rural or suburban district, otherwise poor and needy, did not have a profile that fit the density and urbanization criteria, it would have impacted their dfg rating by marking them as less needy than their urban counterparts despite the fact that the two sets of school districts confronted identical funding and tax base issues. when viewed by these dfg categories, large gaps existed between the poorest urban and wealthiest suburban districts in both per-pupil expenditure and the local property tax base. the state average per-pupil expenditure in the 1984�85 school year was $3,329. during that school year, school districts in dfg j spent $1,245 more per-pupil than districts in dfg a ($4,154 compared to $2,909). in terms of property value, the state average was $190,401 of property value per pupil. dfg j possessed a staggering $281,879 more in property value per-pupil than their dfg a counterparts ($360,101 compared to only $78,222).57 summarizing the findings in the record, the court noted that “[n]o sophisticated analysis can destroy the conclusion: the richer districts spend more than the poorer, and their ability to do so is strongly correlated to their wealth.”58 by highlighting the dramatic disparity in actual per-pupil education spending between rich and poor school districts, and in the local wealth base through which districts can secure additional funding via local property tax increases, the court put to rest the argument that poor districts can overcome funding issues on their own. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 54 “[t]hese poorer urban districts . . . [are] the sole object of the remedy we impose.” id. at 387. the court acknowledged that “[t]he primary basis for our decision is the constitutional failure of education in poorer urban districts.” id. at 394. 55 at the time, seven factors were calculated in determining a school district’s dfg ranking: “1) per capita income level, 2) occupation level, 3) education level, 4) percent of residents below the poverty level, 5) density (the average number of persons per household), 6) urbanization (percent of district considered urban), and 7) unemployment (percent of those in the work force who received some unemployment compensation).” id. at 385. 56 district factor groups (dfgs) for school districts, n.j. dep’t of educ., http://www.state.nj.us/education/finance/sf/dfg90.shtml (last visited jan. 13, 2012). the classifications are a, bc, cd, de, ef, gh, i and j, with a being the poorest and j the wealthiest districts. as of the 2000 census, there were 549 school districts in new jersey that were evaluated by dfg criteria and assigned a group, the breakdown was as follows: a = 39 districts, b = 67, cd = 67, de = 83, fg = 89, gh = 76, i = 103 and j = 25. id. 57 abbott ii, 575 a.2d at 388. 58 id. 2012 columbia journal of race and law 179 after determining that the funding disparity was significant and would continue to exist in the absence of state intervention, the court then found that the disparate levels of funding correlated with disparate levels of achievement. the court also found evidence of a constitutional violation of the students’ right to a “thorough and efficient” system of education in an examination of standardized tests. in the 1985�86 school year, all but two districts in dfg a and b failed to meet the established state standard for the high school proficiency test (hspt).59 most startling about these failure rates is that the hspt tested students for “mastery of basic skills . . . the minimum level of learning needed to go on to more difficult subjects.”60 the legislature admitted that the test was a “prerequisite to, not the equivalent of, a thorough and efficient education.”61 in essence, the situation was so dire that high school students in the poorest school districts were performing so poorly that they did not possess the prerequisite knowledge to competently benefit from the absolute minimum level of education that the new jersey constitution requires.62 inadequate facilities also played a major role in declaring new jersey’s education funding scheme unconstitutional. both for their impact upon the ability to provide a “thorough and efficient” education and for the lasting imagery the poor conditions left upon the justices.63 the court explicitly declared that “[a] thorough and efficient education also requires adequate physical facilities.”64 several examples of facilities were cited as failing because of educational inadequacy,65 athletic inadequacy,66 safety hazards,67 and hygienic concerns.68 just as important was the simple issue of space: schools in poor urban districts !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 59 id. at 400. today, new jersey administers the high school proficiency assessment (hspa), a test with a slightly altered name and largely the same goals. one key difference is the grade level: the hspt (high school proficiency test) in the record at trial was administered to ninth graders, id., whereas the current hspa is given to eleventh graders. high school statewide assessments, n.j. dep’t of educ., http://www.state.nj.us/education/assessment/hs/hspa/ (last visited jan. 13, 2012). 60 abbott ii, 575 a.2d 359, 400 (n.j. 1990) 61 id. 62 id. hspt testing data from the three covered subjects – math, reading and writing – demonstrated that students from the poor urban districts posted passing scores at significantly lower rates than the state average, and an even greater disparity existed between the poor urban districts and the wealthy dfg j districts. 63 the new jersey supreme court justices’ reactions demonstrate how dramatic the case presented was, in particular, the conditions of school facilities in poor urban districts. stories of “leaking roofs, broken plumbing, and lack of heat in urban school building[s]” outraged several of the justices. in reflecting upon abbott ii several years after the decision, justice gary stein described how he believed “[i]t was shameful for the state to have school buildings that were so decrepit. . . . [i]t was evidence of callousness and neglect.” yaffe, supra note 4, at 189. 64 abbott ii, 575 a.2d 359, 397 (n.j. 1990). 65 id. at 395. while wealthier suburbs possessed dedicated science laboratory rooms and state-of-the-art equipment, “many poor urban districts offer[ed] science classes in labs built in the 1920’s and 1930’s, where sinks do not work [and] equipment . . . is not available . . .” 66 id. at 396. for example, none of irvington’s elementary schools had an outdoor playground for recess or physical education. east orange, another poor urban district, had no sports facilities available for its high school student-athletes. 67 id. at 397. the long-term repairs report for the east orange school district listed thirteen facilities in need of asbestos removal and ten requiring “immediate” roof repair. 180 bringing home the bacon vol. 2:1 lacked space for classrooms thus leading to larger class sizes held in smaller rooms compared to their wealthy suburban counterparts.69 despite the findings that dfg a or b school districts were significantly worse off than their wealthy counterparts, the court limited the scope of its judicial remedy by eliminating all the non-urban districts that were rated as dfg a or b. within the poorest two dfg gradings, there were a total of twenty-nine districts classified by the nj doe as urban.70 relying upon the dfg calculations, the ample evidence on record and the nj doe’s classification of districts as urban, suburban or rural, the court decided that the poorest urban districts—those districts with a dfg rating of a or b and that also qualify as urban—would be the subject of the remedy the court provided. excluded from this grouping were the other twenty-seven districts identified as urban but which did not face a socioeconomic situation dire enough to warrant access to the remedy. also excluded were any suburban or rural districts that would have qualified via socioeconomic status but were disqualified based on urbanization classification.71 the court’s reasoning for exclusion was blunt: because the rural districts are not urban, “they are therefore not as poor or needy.”72 little explanation was provided by the court for this proclamation. the court seemed to defer to the doe’s decision to include urbanization and population density as factors in the dfg formula finding that, because those factors were considered relevant to a determination of poverty or need among school districts, the absence of these factors implies lesser poverty or need.73 the elc’s singular focus on poor urban plaintiffs produced an evidentiary record in abbott that did not include descriptions of constitutional violations occurring in impoverished, non-urban districts. the court believed it was constrained to rule based upon the evidence before it. with the most underfunded and failing schools located in new jersey’s bleak urban areas, and with the racial composition of the schools reaching over ninety percent minority student enrollment, the elc made the conscious decision to select plaintiffs from cities like camden and trenton to represent their case. the elc picked the most compelling, extreme circumstances to establish their legal case, and the unfortunate consequence of this strategy was the disregard for dissimilar school districts with similarly failing schools. the court concluded that “there is no direct substantive evidence on [the abbott ii trial] record of [the rural districts’] failure to provide a thorough and efficient education.”74 the court also !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 68 id. whereas schools in wealthier suburban districts were “newer, cleaner and safer,” one classroom in irvington was converted from its old usage as a coal bin and an elementary school in paterson used the basement boiler room as cafeteria space. 69 id. at 395–97. lack of space foreclosed adding programs in supplementary subjects, such as foreign language, computer or music education, as there was insufficient space for teaching the core subjects. 70 at the time of abbott ii, there were 56 school districts in total identified as urban. id. at 386. today, there are 64 districts classified as urban in new jersey. urban district list, n.j. principals and supervisors ass’n, http://www.njpsa.org/documents/pdf/urban%20district%20list.pdf (last visited jan. 13, 2012). 71 one last exclusion in the abbott ii decision was the atlantic city school district, which was in dfg a and classified as urban but possessed a guaranteed tax base “far in excess” of the statutory limit and of the other poor urban districts, owing to the multitude of large casinos and shops within city limits. abbott ii, 575 a.2d 359, 408 (n.j. 1990). 72 id. at 387. 73 “these non-included districts do not have the characteristics that lead to classification as urban districts by the department of community affairs or by the commissioner.” id. 74 id. the reasons for the insufficiency of the evidentiary record will be explained later, see discussion infra part iii, particularly part iii.b.1. 2012 columbia journal of race and law 181 cites the “monumental” needs of students in urban districts, compared to their affluent suburban counterparts. these urban students require the necessities, such as food and shelter, let alone upgraded school facilities.75 with the evidentiary focus squarely on the most compelling poor urban districts within new jersey, the court turned its attention to designing a remedy that would best address the needs of the aggrieved poor urban districts. the abbott ii remedy is stated in broad terms, but the goal is clear: “[t]o motivate [poor urban students], to wipe out their disadvantages as much as a school district can, and to give them an educational opportunity that will enable them to use their innate ability.”76 in more concrete terms, the state had an obligation to “assure that poorer urban districts’ educational funding is substantially equal to that of property-rich districts.”77 the court emphasized that equalized funding cannot rely upon local property taxes generated by the poorer districts; the aid must come from another source, independent of local taxation, devised by the state legislature.78 c. the 1990s: the court asserts control in abbot t 1. abbot t iv : enough is enough in abbott iii, the court provided a deadline for the legislature to rectify the ongoing constitutional violations.79 if compliance with abbott ii had a “less than reasonable likelihood” of occurring prior to the 1997-98 school year, the court would hear a new motion in the abbott case.80 in response, the legislature passed another remedial statute,81 the comprehensive educational improvement and financing act (ceifa).82 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 75 “this record shows that the educational needs of students in poorer urban districts vastly exceed those of others, especially those from richer districts. the difference is monumental . . . .” abbott ii, 575 a.2d at 400. the court goes further and lists many basic needs beyond education reform including, among others, the need for food, clothing, shelter, community support, and role models. id. the court also references the analysis of former new jersey governor thomas kean’s plan to improve the quality of education in poor urban districts. governor kean “made it clear that his concern was with the quality of education in urban areas, in particular, the poorer urban areas.” id. at 386. 76 abbott ii, 575 a.2d 359, 400 (n.j. 1990) (emphasis added). 77 id. at 408 (emphasis added). 78 id. at 408, 409 (emphasis added). 79 abbott v. burke (abbott iii), 643 a.2d 575 (n.j. 1994). at issue in abbott iii was a remedial funding statute (the quality education act) that the state legislature designed with the hopes of bringing new jersey into compliance with abbott ii. the court ruled this funding scheme unconstitutional, and then provided a deadline for the state to comply with abbott ii. 80 id. at 577. 81 doe archives: history of funding equity, n.j. dep’t of educ., http://www.state.nj.us/education/archive/abbotts/chrono/ (last visited jan. 13, 2012) [hereinafter doe archives]. 82 comprehensive educational improvement and financing act of 1996 (ceifa), n.j. stat. ann. § 18a: 7f1 (repealed 2007). 182 bringing home the bacon vol. 2:1 in the fourth round of the abbott litigation,83 the elc alleged that the ceifa, like the 1975 act from robinson v, was unconstitutional because it failed to comply with prior court orders for remedying the education funding crisis in poor urban districts.84 the new jersey supreme court agreed with the elc and declared it would no longer tolerate the legislature’s repeated failed efforts to ameliorate the constitutional violations occurring in school districts across new jersey. the court struck down ceifa as unconstitutional as applied to the poor urban districts listed in abbott ii and began to fashion its own remedy.85 first, the court ruled that the substantive educational requirements of ceifa (the “thorough” prong of the education clause) were, in fact, constitutionally permissible. the court opted to uphold and maintain the education standards,86 but ruled that the funding provisions were “clearly inadequate and thus unconstitutional as applied to the special needs districts.”87 ceifa’s funding problems were inherent to the statute. the statute defined what the legislature considered the constitutionally guaranteed minimum level of education. with the statute defining its own constitutional floor, ceifa then modeled the proposed funding scheme after districts that provided the absolute minimum level of education to satisfy the statute, and no more.88 the court believed that the absolute minimum was constitutionally inadequate. the court reemphasized that poor urban districts needed even more funding than their wealthy counterparts, as there were significant obstacles in providing a meaningful education in these districts.89 authored by justice alan handler, the opening remarks of the majority decision in abbott iv reflect the court’s impatience with the legislature and a sense of urgency on behalf of the students whose !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 83 abbott v. burke (abbott iv), 693 a.2d 417 (n.j. 1997). 84 id. 85 id. at 429. 86 id. at 428. the court detailed the critical aspects of the ceifa substantive requirements: standardized tests to monitor progress administered in the fourth, eighth and eleventh grades; achievement goals in the seven “core” academic areas (“visual and performing arts, comprehensive health and physical education, language-arts literacy, mathematics, science, social studies, and world languages”); and freedom for local schools to develop official curriculums, so long as they adhere to the aforementioned standards. id. at 425. 87 id. at 429. the court summarized the state’s argument: ceifa must stand or fall based on the validity of its premise that the t & e amount [the statute’s fixed per-pupil cost]is sufficient to provide a thorough and efficient education for all students and that spending in excess of that amount in the wealthier districts is nothing more than expenditure that is inefficient and unnecessary for a thorough and efficient education. id. at 427. 88 id. in response, the state claimed that the wealthiest districts that spent the most per pupil on education had “notable inefficiencies in their spending practices” and thus were overspending to achieve the level of education they provided. the court cites the outrage from the wealthier districts in having to defend their levels of education spending, and the eventual elimination of the earliest provisions of ceifa, as proof that “the general perception and widespread belief” is that higher spending is not merely “inefficiency or . . . educational luxuries.” id. 89 abbott iv, 693 a.2d 417, 434 (n.j. 1997). “[t]he needs of students in the [poor urban districts] were much greater than those of students in the dfg i & j districts.” these needs include, but are not limited to, early childhood programs, supplemental education programs for english as a second language (esl) students and investment in facilities (describing many of the schools in these districts as “in dramatic disrepair”). id. at 438. 2012 columbia journal of race and law 183 constitutional rights were being unduly harmed in the absence of an adequate remedy. handler remarked, “[t]he new act [ceifa] is incapable of assuring that opportunity for children in the special needs districts for any time in the foreseeable future.”90 later in the opinion, justice handler expresses in greater chronological detail the court’s displeasure at how onerous and delayed the implementation of a remedy for the problem has been: the legislature has known since july 1994, when we decided abbott iii, that increased funding would have to be achieved by the 1997-1998 school year. that 1994 order, in turn, was necessitated by the legislature’s failure to comply with our 1990 order [in abbott ii] calling for remedial relief. thus, the state has had seven years to comply with a remedy intended to address, albeit partially, a profound deprivation that has continued for at least twenty-five years. thus, the remedy of increased funding for educational improvement in the poor urban districts should not be delayed any further.91 ceifa was another failed attempt from the legislature at complying with the court’s orders from abbott ii and with remedying the constitutional violation damaging poor students in new jersey. with ceifa declared unconstitutional, the court found that the “continued deprivation of the constitutional right to a thorough and efficient education necessitate[d] a remedy.”92 acknowledging the “finiteness of judicial power,” the court nevertheless ordered the state to ensure the immediate remedy of parity in per-pupil school expenditures between the identified poor urban districts and the school districts in dfg i and j for the next school year.93 the court took a bold step here by finding the state legislature constitutionally mandated to spend money to ensure parity: the gap in per-pupil expenditures had closed from twenty-five percent, at the time of abbott ii, to ten percent in the year 1996.94 nevertheless, the court felt that ceifa stifled the gradual march towards total parity in funding and ordered the immediate remedy.95 in compliance with the abbott iv decision, the new jersey legislature allocated $246 million in additional state education aid to be distributed to the abbott districts for the upcoming school year.96 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 90 id. at 420. 91 id. at 443 (emphasis added). 92 id. at 439. 93 id. there are now, and were at the time, approximately 120 school districts in dfg i and j. district factor groups (dfgs) for school districts, n.j. dep’t of educ., http://www.state.nj.us/education/finance/sf/dfg90.shtml (last visited jan. 13, 2012). 94 michael paris, framing equal opportunity: law and the politics of school finance reform 139 (2010). 95 abbott iv, 693 a.2d 417, 440 (n.j. 1997). 96 the poor urban districts, or abbott districts, as they became known, were initially the twenty-eight districts identified in the abbott ii decision. in the fall of 1998, the legislature, pursuant to its authority from abbott ii, classified two additional districts as abbott districts, bringing the total, prior to the bacon litigation to 30. see infra part iii.a; alexandra grief, politics, practicalities and priorities: new jersey’s experience implementing the abbott v mandate, 22 yale l. & pol’y rev. 615, 641 (2004). 184 bringing home the bacon vol. 2:1 the calculated spending shortfall resulting from the roughly ten percent gap in per-pupil expenditures was $248 million.97 2. abbot t v : the court orders unprecedented remedial measures in addition to ordering immediate funding parity, the court in abbott iv remanded the case and ordered a study conducted to determine fully the special needs of students in the abbott districts, the programs necessary to address these needs, and the costs associated with implementing the programs.98 after remand, the new jersey supreme court in abbott v99 ordered an unprecedented series of entitlements for urban schoolchildren.100 the court ordered whole-school reform for elementary schools,101 fully funded full-day kindergarten and half-day preschool, construction of new facilities and repair of existing facilities as per the recommended school construction plan.102 litigation continued after abbott v, as plaintiffs sought to protect and ensure full enforcement of the remedy that they won.103 nonetheless, because of jurisprudence culminating with abbott v, the abbott districts now had a comprehensive, detailed, court-ordered remedy that guaranteed funding parity and provided for a multitude of supplemental programs to ensure the delivery of a constitutionally adequate education to its students. iii. violations of the constitutional right to a “thorough and efficient” education in new jersey’s non-urban school districts part iii will examine the current constitutional and educational plight of the bacon districts. a complete examination of the entirety of the bacon litigation, from the first filing until the most recent decision from the new jersey appellate division, will provide the necessary legal and historical background knowledge. a comparison of the bacon and abbott districts follows, demonstrating the similarities, both in reality and under the legal doctrine set forth by the various abbott decisions, between the districts. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 97 doe archives, supra note 81; abbott iv, 693 a.2d at 443 n.35. 98 abbott iv, 693 a.2d at 444. 99 abbott v. burke (abbott v), 710 a.2d 450 (n.j. 1998). 100 the history of abbott v. burke, educ. law ctr., http://www.edlawcenter.org/cases/abbott-vburke/abbott-history.html [hereinafter history of abbott v. burke]. 101 abbott v, 710 a.2d at 473. broadly speaking, whole-school reform entails dramatically reforming the school as one singular institution, rather than approaching problems individually. for a more detailed look at an example plan for whole-school reform, see success for all foundation, http://www.successforall.org (last visited jan. 13, 2012). 102 abbott v, 710 a.2d at 473. funding was allotted for further programs, including health services, social services, increased security, summer-school programs and after-school programs. history of abbott v. burke, supra note 100. 103 see generally abbott v. burke (abbott vi), 748 a.2d 82 (n.j. 2000) (holding that the state failed to implement the pre-school reforms ordered in abbott v); abbott v. burke (abbott vii), 751 a.2d 1032 (n.j. 2000) (holding that the state must fully fund the school construction plan ordered in abbott v). to date, abbott v. burke has produced three decades and twenty-two officially counted decisions. 2012 columbia journal of race and law 185 a. bacon v . new jer s ey depar tment o f educat ion : the rural districts petition for inclusion in the comprehensive abbott remedy in the opening remarks of the majority opinion in abbott ii, the court foresaw the potential state constitutional problems that would arise for school districts that were excluded from the court’s decision in 1990: on this record we find a constitutional deficiency only in the poorer urban districts, and our remedy is limited to those districts. we leave unaffected the disparity in substantive education and funding found in other districts throughout the state, although that disparity too may someday become a matter of constitutional dimension. we do so without implying in any way that such disparity is not important when considered as a matter of policy. our decision deals not with optimum educational policy but with constitutional compliance.104 seven years after abbott ii, the court’s prediction would prove true, as a new litigation was undertaken on behalf of impoverished, constitutionally deficient school districts that were excluded from the abbott remedy by virtue of the court’s confinement of the remedy to poor urban districts. 1. the beginning of the bacon litigation: minor victories, major setbacks in december of 1997, seven months after the new jersey supreme court issued its landmark ruling in abbott iv, a group of seventeen poor rural school districts filed suit in superior court in litigation known as bacon v. new jersey department of education.105 these districts alleged that ceifa was unconstitutional as applied to them, echoing the arguments made in abbott iv by plaintiffs residing in poor urban districts. plaintiff school districts claimed that, under ceifa, they lacked sufficient education funding to provide the constitutionally required “thorough and efficient” education, and as such, they needed state assistance akin to the abbott districts to alleviate the ongoing constitutional harm. the bacon districts argued that they satisfied all of the abbott factors, save for one: urban classification. bacon districts are, largely, sparsely populated townships, many of which are considered rural in terms of geography and population density. nevertheless, they claimed that because of the constitutional violations occurring due to a lack of education funding, the abbott remedy should be extended to rural school districts. the first decision in the bacon litigation, issued in 2002,106 was a partial victory, as only five of the seventeen petitioning districts prevailed, but it demonstrated the substantiality of the case for rural !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 104 abbott ii, 575 a.2d at 384 (emphasis added). 105 bacon v. n.j. dep’t of educ. (bacon i), oal dkt nos. edu 2637-00–2656-00, 2002 wl 31232958 (n.j. adm. sept. 23, 2002). for the purposes of this paper, a numerical naming system for identifying the various bacon decisions will be implemented, akin to that used in the abbott decisions. note, however, that the bacon decisions are not colloquially known by any numeric designation, unlike the abbott cases, which are commonly referred to in case law and news coverage using roman numerals. 106 many procedural hurdles had to be cleared for the case to reach the trial stage, resulting in nearly four years of delay before the seventeen bacon districts could present their arguments before a court. id. at 3–4. to emphasize the delay in terms of judicial speed or lack thereof, in the interim between the initial filing and the first bacon decision from the alj, the new jersey supreme court issued five decisions in the abbott litigation: abbott v, abbott vi, abbott vii, abbott viii and abbott ix. education law center, to view these decisions, see abbott decisions, educ. law ctr., http://www.edlawcenter.org/cases/abbott-v-burke/abbott-decisions.html (last visited jan. 13, 2012). 186 bringing home the bacon vol. 2:1 districts. in describing the five districts for which he found a violation of the “thorough and efficient” education clause, the alj wrote that the districts “present[ed] a grim fusion of socioeconomic deprivation, limited educational opportunity, facility deficiency and academic underperformance.”107 the five districts deemed as “special needs districts” (snds) were all dfg a (the most impoverished, needy districts in the state), had substandard test scores and had, overall, profiles similar to the thirty abbott districts.108 in the twelve districts he held not to be snds, the alj determined that lack of education funding or relative community poverty was not adversely affecting education standards severely enough to warrant state intervention.109 the alj also directly addressed the plaintiff’s contention that the relative educational success of some of the impoverished bacon districts should not be misunderstood as proof that greater funding is not needed. the alj recognized that the court rewarded failing snds with increased funding and unintentionally penalized successful snds by withholding the increases, but instead chose to view abbott as a “palliative for deeply entrenched misery” which included poor educational output in addition to poverty and other circumstances.110 in bacon ii, the commissioner of the nj doe overturned the alj decision as to four of the five districts he had identified as snds.111 the commissioner determined that only one district, salem city,112 qualified as having a situation dire enough to require state action to ameliorate a constitutional harm.113 the commissioner believed that the issues in the remaining sixteen bacon districts were not matters of a “constitutional dimension” and thus best handled by the legislature, the executive, and the nj doe.114 a key point of contention for the commissioner was whether inadequate facilities should factor into the analysis of ceifa’s constitutionality. while the districts argued that facilities were a major factor in the abbott litigation,115 the commissioner decided that the educational facilities !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 107 five districts sufficiently demonstrated a constitutional violation from the abbott ii standard, which the court defined here as circumstances of “clear, severe, extensive, and . . . long duration.” bacon i, supra note 105, at 8. 108 for example, the buena regional school district (in which the namesake plaintiff resided) was a dfg a district “roughly in the upper middle of the abbott spectrum” with student suspension rates much higher than abbott averages and issues with overcrowding and antiquated facilities. id. at 27–37. 109 id. at 63–67. for example, the lakehurst school district was found to be a “relatively poor working-class community that is performing reasonably well.” id. at 67. the alj reached this conclusion, despite lakehurst having a similar profile to the abbott districts regarding poverty levels and certain school performance indicators (such as suspension rate, student mobility and special education rates), because the standardized test data was quite good and attendance was above the state average in spite of the district’s weaknesses and needs. id. at 66–67. in other words, despite poverty and a student body with needs akin to abbott district students, their relative triumphs foreclose additional state aid, when adequate funding could prove extraordinarily effective, given past performance. 110 id. at 8. 111 bacon v. n.j. dep’t of educ. (bacon ii), (n.j. comm’r of educ., feb. 10, 2003), available at http://www.nj.gov/education/legal/commissioner/2003/feb/50-03.pdf. 112 upon recommendation by the nj doe following the bacon ii decision, salem city was added as an official abbott district by an act of the new jersey state legislature. n.j. stat. ann. § 18a:7f-3 (2004). 113 the commissioner interpreted abbott as “a remedy for poverty and educational failure so substantial, pervasive and durable that targeted efforts simply cannot produce a constitutionally sufficient result.” bacon ii, supra note 111, at 137. 114 bacon ii, supra note 111, at 137–38. 2012 columbia journal of race and law 187 construction and financing act (efcfa), a special remedial legislation designed to fund and carry out the construction of new school facilities passed in the wake of abbott v, should govern in the present claims. in essence, the commissioner divorced facilities from funding in his analysis of a “thorough and efficient” education. as a result, the commissioner denied abbott-type relief but instead recommended specific evaluations to determine need.116 2. the breakthrough: bacon iii and bacon iv several districts appealed to the new jersey state board of education, arguing that the commissioner erred in ruling ceifa constitutional as applied to the plaintiff school districts. in bacon iii, all sixteen rural districts from bacon i triumphed in demonstrating the unconstitutionality of the state’s funding scheme as applied to them.117 first, the state board spurned the commissioner’s reliance on standardized test scores as flawed for multiple reasons,118 and instead turned to the abbott ii decision for proper guidance on assessing the sufficiency of education in the bacon districts. in relying upon abbott ii, the state board evaluated the educational inputs, focusing primarily on funding, in assessing the constitutional adequacy of education.119 a second victory came in the invocation of the abbott needs-based analysis; chiefly, that poor districts with higher concentrations of special needs students and worse socioeconomic conditions “required an educational offering that contained elements over and above those found in affluent suburban districts.”120 third, the state board rejected the commissioner’s exclusion of facilities in determining if a “thorough and efficient” education was being provided.121 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 115 see supra part ii.b.3, p. 17–18 (discussion of findings in abbott ii). 116 bacon ii, supra note 111, at 169. 117 bacon v. n.j. dep’t of educ. (bacon iii), (n.j. state bd. of. educ., jan. 4, 2006), available at http://www.state.nj.us/education/legal/sboe/2006/jan/sb4-03.pdf. 118 the state board noted three flaws in relying too heavily upon standardized test scores to determine the constitutional adequacy of education. first is the incompleteness of the testing: only three subjects (language arts, science and mathematics) are assessed on these tests, but “a thorough and efficient education encompasses far more than these three subject areas.” id. at 27. second is the limited timeframe. id. at 37. third is the lack of high school data, as most of the bacon districts end at eighth grade. id. at 38. 119 id. at 28. “we deal with the problem in those terms because dollar input is plainly relevant and because we have been shown no other viable criterion for measuring compliance with the constitutional mandate.” abbott ii, 575 a.2d 359, 399 (n.j. 1990) (citing robinson i, 303 a.2d at 273) (emphasis in original). the issue of “other viable criterion” was handled, in part, in abbott iv, where the court declined to replace the educational inputs assessment with a purely standards-based approach. 120 bacon iii, supra note 117, at 30 (emphasis added). the education law center, the non-profit litigators for the abbott districts, filed an amicus curiae brief that argued the bacon litigation must be judged by the abbott ii and abbott iv criteria, described as: “social, economic and educational factors that produce an environment in which the provision of a constitutionally adequate education is effectively impossible without such status.” id. at 13. 121 id. at 32. the commissioner’s conclusion was contrary to a litany of prior statements from the supreme court on the utmost importance of school facilities and the state’s constitutional duty to ensure adequate facilities. see robinson i, 303 a.2d at 273 (“a thorough and efficient education also requires adequate physical facilities.”); abbott ii, 575 a.2d at 397 (“[d]eficient facilities are conducive to a deficient education.”); abbott iv, 693 a.2d at 437 (“deteriorating physical facilities relate to the state’s educational obligation, and we continually have noted that adequate physical facilities are an essential component of that constitutional mandate.); abbott v, 710 a.2d at 470 (“these deplorable conditions have a direct and deleterious impact on the education available to the at-risk children. the state’s constitutional educational obligation includes the provision of adequate school facilities.”); and supra part i.b.3, p. 19–20 (examples of deficient conditions). 188 bringing home the bacon vol. 2:1 interpreting the evidence and utilizing legal standards in a way most beneficial to the petitioners, the state board went on to find a constitutional violation in all sixteen bacon districts, but stopped short of declaring ceifa itself unconstitutional because of its jurisdictional limitations.122 the state board concluded that the bacon districts were failing to provide a “thorough and efficient” education based on the evidentiary record before the alj and the commissioner.123 3. the purgatory: state in violation of constitution with regard to bacon districts, but no remedy despite the state board finding the bacon districts failed to provide a “thorough and efficient” education to its students, the board in bacon iii refused to recommend the abbott remedy. the state board claimed that each bacon district had unique circumstances that differentiated an individual rural district from the urban districts and the other rural districts, whereas the abbott districts were similar enough to each other to receive a universal remedy.124 because of this belief, the state board determined that a full implementation of the abbott remedy was improper. instead, the state board directed the nj doe to assess the needs of the bacon districts individually; in essence, requesting more information and deferring to the legislature and executive to conjure up a new remedy tailored to these districts.125 the state board argued that “different approaches will be required than those utilized in poor urban districts” to properly remedy constitutional violations in the rural school districts.126 curiously, however, the state board reasoned that “growing up in poverty is basically the same, regardless of the district” while simultaneously suggesting that the solutions may differ between urban and non-urban districts.127 what makes these two statements intriguing is that, while solutions for poverty undoubtedly differ between newark and rural south new jersey, the context of poverty here is limited to the impact it has upon education funding, and a comprehensive remedy had already been devised over the course of many years of litigation and judicial-legislative interplay in abbott. given the narrow facts at issue in bacon, the state board was tasked with simply evaluating the inadequacy of education funding and providing relevant solutions, not with devising a means of eradicating the root causes of poverty in rural areas. the idea promoted by the state board here – that because each rural district is a unique snowflake, the abbott remedy is inappropriate – is unsatisfying. given the history of repeated delays and ineffective solutions in legislative and executive responses to court orders in the robinson and abbott litigation, it should come as little surprise that the commissioner, ordered by the state board to conduct and complete an assessment of all sixteen bacon districts within two months of the decision,128 delayed in filing the court-mandated report. the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 122 the state board describes the legitimacy, authority, duty and limitations on its jurisdiction in greater detail. bacon iii, supra note 117, at 33–34 n.16. 123 id. at 40–41. “[w]e have adopted and relied upon the alj’s factual findings in arriving at our conclusions.” id. at 35 n.17. 124 bacon iii, supra note 117, at 59. “in addition, each district involved must confront a particular set of circumstances not necessarily shared by other poor districts whether urban or not, as, for example, a significant number of students whose parents earn their living through migrant labor.” 125 id. at 70. 126 id. at 59. 127 id. at 66. 128 bacon iii, supra note 117, at 69. 2012 columbia journal of race and law 189 commissioner cited the successor legislation for ceifa that was, at the time, being drafted in a joint effort between then-governor jon corzine and the legislature as the source of the delay.129 with no remedy in place and an official report from the commissioner of education that deferred any further reporting, thus delaying the construction of a remedy even longer, the bacon districts appealed again – this time to the judiciary. bacon iv was argued before the new jersey appellate division and decided in march 2008.130 most critically, the timing of the decision placed it one month after the enactment of the school funding reform act (sfra), the legislation that replaced ceifa.131 the court in bacon iv relied heavily upon the state board’s decision in bacon iii, and also found the sfra to be a highly significant new development. upon evaluation of the record, the court confirmed that there was a constitutional violation of students’ rights to a “thorough and efficient education” in the bacon districts.132 in deference to the legislature and the recently passed sfra, however, the court was unwilling to provide a remedy.133 instead of ordering the abbott remedy or any other remedial measure, the state board’s decision in bacon iii was restated and reordered: a study to determine the individual needs of the bacon districts must be conducted in light of the sfra and completed within six months. declaring the study “the very least [that] our constitutional duty demands,” the court callously noted that “constitutional violations must be remedied in a timely fashion.”134 remedies have been anything but timely, as the appellate division’s decision came in the eleventh year of the bacon litigation and with several prior decisions also emphasizing the uniqueness of each bacon district and thus the necessity of further individualized studies. meanwhile, an entire class of children graduated from the k�12 public school system in the bacon districts. to quote the majority !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 129 press release, educ. law ctr., commissioner delays relief to nj rural students (june 23, 1996), available at http://www.edlawcenter.org/news/archives/school-funding/209.html. for full text of the actual report, see report to new jersey state board of education: implementation of the bacon decision, educ. law ctr. (may 26, 2006), http://www.edlawcenter.org/assets/files/pdfs/newsblasts/elcnews_060623_bacondecision.pdf (last visited jan. 14, 2012). 130 bacon v. n.j. dep’t of educ. (bacon iv), 942 a.2d 827 (n.j. super. ct. app. div., 2008). 131 school funding reform act of 2008 (sfra), n.j. stat. ann. §18a:7f-43 (2008). the sfra aimed to create a unified school funding formula for the entirety of new jersey. the sfra was initially declared constitutional by the new jersey supreme court in 2009, as applying the funding formulas to the abbott districts. the court, however, refused to abolish the abbott district distinction, leaving intact the programs it established a decade earlier; the decision was limited to the funding streams. abbott v. burke (abbott xx), 971 a.2d 989 (n.j. 2009). the elc is currently challenging budget cuts made in 2010 and 2011 as rendering the sfra unconstitutional as to the abbott districts. the supreme court remanded the case in january of 2011 for fact-finding, putting the onus on the state to demonstrate that a “thorough and efficient” education can be delivered with the reduced budget. jeanette rundquist and jessica calefati, n.j. supreme court orders state to prove christie’s funding formula is sufficient, newark starledger, jan. 14, 2011, http://www.nj.com/news/index.ssf/2011/01/nj_supreme_court_orders_state.html. 132 bacon iv, 942 a.2d at 837. 133 id. at 837. while the track record of success is dubious at best, the court cites robinson ii, robinson v, abbott ii and abbott iii as examples of the judiciary deferring to the legislature to fashion a suitable remedy for the constitutional harms that were outlined in those cases. “[a]n alternative ‘wait and see’ approach . . . usually is both prudent and preferred in constitutional jurisprudence, and the court has taken that approach in the past.” id. (citing abbott iv, 693 a.2d at 445). 134 bacon iv, 942 a.2d at 839 (emphasis added). 190 bringing home the bacon vol. 2:1 from abbott ii, “[students in poor districts] have already waited too long for a remedy, one that will give them the same level of opportunity, the same chance, as their colleagues who are lucky enough to be born in a richer suburban district.”135 for the bacon districts, the deferral of a remedy has equated to the denial of one. 4. the aftermath and current status: further delays and deprival the commissioner of education issued her report on the bacon districts on september 14, 2009, eighteen months after the bacon iv decision and a full year after the court-ordered completion date. the needs assessment report found that all sixteen bacon districts could provide a “thorough and efficient” education under the new sfra funding regime. the report, however, was flawed in numerous respects. first, the orders of the state board and the court were ignored again, as the report lacked a detailed analysis into the special needs of each of the rural bacon districts. fred jacob, the lead attorney representing the bacon districts, derided the state’s investigation as being “[a] drive-by, cursory review” of family poverty, district poverty in terms of taxable property value and poor facilities, and for containing nothing specifically addressing the unique problems facing rural communities in new jersey.136 elc described the state needs assessments of the bacon districts as failing to investigate the difficulties faced by students coming from families of migrant workers, spanish-speaking parents or families without adequate health care. the sfra was underfunded for the 2009�10 school year, resulting in a shortfall of $8.6 million of state education aid pledged to seven of the bacon districts.137 with a finding that the current funding system was a violation of the constitutional right to a “thorough and efficient” education, and the acknowledgement that more funding, additional programs and particularized plans were necessary to alleviate the harm done to the students, this underfunding exacerbates the constitutional harm. an underfunded state education aid statute “does nothing more than tell the snds to reorganize (and thus become more efficient, like the model) and to achieve at higher levels (even though they have been failing abysmally), with either the same amount of money or less than they had before.”138 education budgets have been cut severely since the enactment of the sfra.139 even if the sfra were fully funded by the state, however, the funding would still be inadequate to address the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 135 abbott ii, 575 a.2d 359, 380 (n.j. 1990). 136 news release, educ. law ctr., state turns its back on rural school children (oct. 29, 2009) (on file with the columbia journal of race and law). 137 id. for a funding breakdown of all the districts, see “bacon” districts 2009–10 state aid shortfalls, educ. law ctr., http://www.edlawcenter.org/assets/files/pdfs/newsblasts/elcnews_091028_bacondistrictschart.pdf (last visited jan. 14, 2012). 138 abbott iv, 693 a.2d 417, 442 (n.j. 1997) (referring to an inadequately funded ceifa as applied to snds). 139 governor chris christie, in attempting to tackle new jersey’s $10 billion budget deficit, cut state education funding by $820 million in 2010. for the 2011 fiscal year, christie has announced an estimated $250 million increase from 2010, thus leaving a net reduction of roughly $570 million from his 2010 cuts. megan demarco & ginger gibson, n.j. to restore a fifth of slashed state aid for schools under gov. christie’s budget, newark star-ledger, feb. 24, 2011, http://www.nj.com/news/index.ssf/2011/02/nj_to_restore_a_fifth_of_slash.html. the court estimated that the sfra was $1.6 billion below optimal funding. abbott v. burke (abbott xxi), 20 a.3d 1018, 1026 (n.j. 2011). thus, while the sfra was underfunded regardless of christie’s budget cuts, the cuts deepened an existing constitutional harm. polling data from new jersey school officials prior to the 2010–11 school year demonstrates that the impact of the state cuts to education aid has caused larger class sizes, fewer teachers, reduced funding for after-school and other 2012 columbia journal of race and law 191 special needs of these bacon districts, thus the constitutional violation remains and the students continue to be harmed. the dollar amounts may appear nominal in some cases, such as a shortfall of $73,447 for lawrence township, but crucial to the analysis is the understanding that these districts were identified as snds. as a snd, funding beyond what a hypothetically normal school district would require is necessary to overcome the myriad of problems these districts must cope with (facilities, poverty, special needs students, etc.). the court has declared that supplemental programs in snds are a “fundamental prerequisite to the fulfillment of the state’s constitutional obligation.”140 in bacon iii, the state board found it clear that “the children in [the bacon districts] have special needs arising from the socioeconomic conditions in the districts.”141 some of the highlighted aspects of the findings include high suspension rates, large class sizes, less qualified faculty members, higher-thanaverage special education populations, overcrowding, inadequate facilities, a curriculum lacking “breadth of [academic] programming,” high mobility rates amongst students, impoverished districts based on local property wealth and family income, lack of special-needs programs such as drug counseling, and lack of adequate early education of programs.142 in the records of the abbott cases, many of these same conditions were found to be evidence of districts with special needs that needed to correct their failure to educate in accordance with their constitutional requirement. for comparison’s sake, the abbott districts, which are similarly classified as snds, continue to receive constitutionally mandated funding levels on par with the wealthiest suburban districts in new jersey. in addition to funding parity, the abbott districts receive many beneficial supplemental programs, such as free preschool and all-day kindergarten as ordered by abbott v, funded and designed specifically for special needs students. while sfra purports to increase state education aid to all districts, it does not contemplate the supplemental programs required in snds to achieve constitutional compliance. the best-case scenario for the poor, rural bacon districts, under a fully funded sfra aid package, is an education that still fails to account for the special needs of the districts. sfra, therefore, even in the best-case scenario where new jersey fully funds the legislation, can never satisfy the constitutional requirements of snds like the bacon districts. the reality of school funding in new jersey since the passage of sfra—marked by chronic underfunding and continued legal battles waged by the elc to ensure the state fully honors its obligation—has fallen far short of the legislature’s goals. b. the urban/rural distinction of abbot t v . burke and bacon v . nj doe 1. why does abbot t only apply to urban districts? the primary, and arguably sole, distinction between the abbott and bacon districts is the urban classification. the new jersey supreme court’s decision in abbott ii first narrowed the prospective poor school districts in new jersey, the districts labeled dfg a and dfg b, from 114 districts down to the twenty-nine districts within dfg a and b that the nj doe had designated as urban.143 there is an !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! additional programs. press release, new jersey school boards association, schools to reopen with fewer teachers, larger class sizes, (aug. 10, 2010), available at http://www.njsba.org/press_releases/schools-to-reopen-with-fewerteachers.html?nr=339. 140 abbott iv, 693 a.2d at 444. 141 bacon iii, supra note 117, at 42 (emphasis added). 142 id. at 40–43. 143 abbott ii, 575 a.2d 359, 386–87 n.18 (n.j. 1990). 192 bringing home the bacon vol. 2:1 undeniable, fact-based logic to the court’s analysis of the evidence in 1990, but the record developed at trial before judge lefelt, the thousands of pages of testimony and hundreds of exhibits, focused primarily upon poor urban districts, particularly the districts represented by the plaintiffs at trial.144 from the first filings on through to the landmark decisions in the 1990’s, the case was narrowly focused on poor urban districts, as opposed to poor districts found in all corners of new jersey. the startling evidence of a state derelict in its duties to educate students in cities like camden and irvington, and the sheer magnitude of the problem in new jersey’s urban areas, undoubtedly provided the strategic and moral motivations to pursue abbott from an urban-centric position. elc’s focus proved immensely successful, but this initial limiting of plaintiffs and of the evidentiary record has caused tremendous roadblocks for non-urban districts in recent years. the court acknowledged the strength of the record when, in narrowing down the list of districts to receive the remedy, it stated, “there is no direct substantive evidence on this record of their failure to provide a thorough and efficient education.”145 the shadow of these findings in abbott looms large over the bacon litigation. amassing a record as vast as the one presented for the poor urban districts in abbott is difficult due to the small size of the bacon districts, in both population and geography. 2. similarities between the abbot t and bacon districts the constant emphasis on the special needs of each individual rural district, as compared to the urban districts, obfuscates the many similarities in problems and needs between the two groups. from the outset, the constitutional right at issue is the same: all students must receive a “thorough and efficient” education. likewise, the argument that the right has been violated is the same: inadequate funding prevents poor school districts from providing the constitutionally required level of education to their students. first, all of the abbott and bacon districts are very poor compared to the new jersey state average. all of the bacon districts possess a dfg rating of a or b, just like the abbott districts currently benefiting from the remedial orders.146 the dfg rating is significant, as a lack of urbanization and population density is considered a mitigating factor in a district’s relative poverty and also the district’s need for mandated funding.147 both groups of districts have an impoverished and thus deficient local property tax base, resulting in an inability to generate constitutionally adequate education funding from their citizens. central to the findings in the abbott decisions, the new jersey supreme court has repeatedly declared that the state cannot put undue emphasis on the abbott districts to tax its citizens to produce the necessary funding to achieve constitutional compliance.148 neither the abbott nor the bacon districts possess the financial wherewithal to overcome the lack of funding via local taxation, and the court recognized this problem and forbid reliance upon local taxation when ordering a remedy for the violation in the urban districts. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 144 camden, east orange, jersey city and irvington. id. at 363. 145 id. at 387 (emphasis added). 146 bacon iii, supra note 117, at 42. 147 dfg factors, supra note 55. for court’s statement on relevancy of urbanization and density, see discussion, infra part ii.b.3, p. 21. 148 see abbott ii, 575 a.2d at 409 (ruling on the 1975 act); and abbott iii, 643 a.2d 575, 576, 578 (n.j. 1994) (ruling on the qea). 2012 columbia journal of race and law 193 second, both groups of districts have special needs to address, apart from the wealthy districts, which necessitate not merely funding parity but greater levels of funding. failure to address the special needs of the urban districts was a major point of contention for the court when declaring the state funding acts unconstitutional. in abbott ii, the court observed that providing the same level of education to a regular student and a “severely disadvantaged” student would do nothing to eliminate the existing gap, thus perpetuating the difference.149 as such, the court decided that “necessarily” means that, in poorer urban districts, something more must be added to the regular education in order to achieve the command of the constitution” to provide a “thorough and efficient” education.150 iv. a proposal: disregard the urban criteria and grant the abbott remedy part iii argues that the bacon districts deserve the full remedy granted to the abbott districts. legal analysis of the abbott cases will prove that they make the same legal claim as the abbott cases and therefore deserve the same remedy to end the constitutional harm. given the principles espoused in abbott, the bacon districts must be afforded the same protections and are legally deserving of the same remedy. evidence of the importance of the increased school funding, vis-à-vis the success of the abbott remedy in certain school districts, further bolsters the argument for granting the abbott remedy. a. the constitutional right must take precedent over urban classification considering that a remedy was fought for and won in the abbott litigation for poor urban districts that demonstrated severe needs, it is curious why the rural districts, arguing their case nearly a decade after the landmark remedial decisions of abbott iv and abbott v, struggle to obtain a remedy for their own educational plight. repeated often in the bacon litigation is the urban/rural divide: what is appropriate for urban districts is not necessarily appropriate for rural districts. differences in demographics and urbanization suggest an approach tailored towards rural districts is appropriate.151 thus, the question remains: why is this distinction so critical? if an education funding system is found unconstitutional as applied to a school district, should urbanization matter in determining the expansiveness of the remedy, or instead should the right itself be paramount, and the similarities of the harm dictate the remedy? given the legal and policy consequences of emphasizing this distinction, it should not factor into the analysis.152 remedial plans for an acknowledged violation of the same constitutional right should not depend upon the population densities. it should instead come down to the efficacy of the existing remedy and the ability to implement the remedy to new populations. educational equity litigation in new jersey suffers from competing goals: the general principle of eradicating inadequate and unconstitutional educational conditions within the state, and the specific issue of violations in poor urban districts as shown by the evidentiary record produced at trial proceeding abbott ii. despite this struggle, there is ample evidence found in the court’s abbott decisions that !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 149 abbott ii, 575 a.2d 359, 402 (n.j. 1990). 150 id. at 403. 151 the state board’s order for an individualized assessment of the bacon districts was “focus[ed] on the unique set of circumstances confronting students of . . . poor rural districts that distinguish them from their urban counterparts.” bacon iv, 942 a.2d 827, 838 (n.j. super. ct. app. div., 2008). 152 the state board found that “the conditions under which [bacon district] students live[d] mirror[ed] those of the students in the abbott districts, which in some cases are only blocks away.” bacon iv, supra note 130, at 833 (citing bacon iii, supra note 117, at 43) (emphasis added). 194 bringing home the bacon vol. 2:1 demonstrate a clear statement of the larger principles that serve as the spirit of abbott; principles that apply to the bacon districts and any other district that the court finds to be in violation of the “thorough and efficient” education clause. the court in abbott iv explicitly declared that: the constitutional guarantee of a thorough and efficient education attaches to every school district, and indeed, to every individual school in the state. of course, the right to a thorough and efficient education does not ensure that every student will succeed. it must, however, ensure that every child in new jersey has the opportunity to achieve.153 every school district must provide a “thorough and efficient” education, as mandated by the new jersey constitution, or else innocent students are subjected to harm. if “[the new jersey] constitution demands that every child be given an equal opportunity to meet his or her promise,” then the promise of a child attending inadequate public schools is suffering a possibly irreparable constitutional injury with every school year that passes.154 these principles surely apply to students in poor rural districts as strongly as they apply to poor urban students, wealthy suburban students, and indeed, all students within new jersey. in the most recent decision in the abbott litigation from may 2011,155 the court ruled that governor christie’s underfunding of the sfra amounted to a constitutional violation of the rights of students. two years prior, the court in abbott xx had upheld the constitutionality of the sfra statewide, but with an explicit condition to fully fund the sfra.156 with the sfra underfunded by nearly $1.6 billion,157 the elc brought suit. yet a majority of the supreme court again limited its findings to the abbott districts.158 absent full funding, the implication was that the court would reevaluate the legislation’s constitutionality. this limitation came despite the court specifically remanding abbott xxi for trial with an order to investigate the constitutional harms inflicted by the education funding cuts on all districts: “whether school funding through sfra, at current levels, can provide for the constitutionally mandated thorough and efficient education for new jersey school children.”159 the trial court, under this remand order, investigated the impact of education budget cuts to students statewide and found that a stunning 205 of new jersey’s 560 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 153 abbott iv, 693 a.2d at 443 (emphasis added). 154 id. at 445. 155 abbott xxi, 20 a.3d 1018 (n.j. 2011) 156 abbott xx, 971 a.2d 989, 993 (2009) (“[a] state funding formula’s constitutionality is not an occurrence at a moment in time; it is a continuing obligation. today’s holding issues in the good faith anticipation of a continued commitment by the legislature and executive to address whatever adjustments are necessary to keep sfra operating at its optimal level.”). 157 abbott xxi, 20 a.3d at 1026. 158 id. at 1036 (“[christie’s budget] reductions have had a significant impact on the beneficiaries of our prior remedial orders, namely the plaintiff pupils of the abbott districts. it was to remedy their decades long constitutional deprivation that this court issued remedial orders.”). 159 opinion/recommendations to the supreme court at 6, abbott v. burke, (n.j. super. ct. mar. 22, 2011) (no. m-1293), http://www.judiciary.state.nj.us/supreme/abbott/abbott%20v%20burke%20-%203-22-2011.pdf. judge doyne, who has presided over many of the trials in the abbott v. burke litigation, specifically noted that the remand “addresses the rights of all new jersey school children” rather than only the abbott students, and that this was a departure from the prior remands. id. at n.5. 2012 columbia journal of race and law 195 school districts, including 59 high-need school districts, had below adequate school expenditures in 2011.160 in spite of the evidentiary record at trial, the majority nevertheless confined the scope of their decision and remedial order in abbott xxi, justifying their stance by proclaiming restrictions on the court’s power and jurisdiction; namely, that the non-urban plaintiffs are not present, therefore, they cannot receive a ruling on their case.161 justice barry t. albin, in filing a concurrence in abbott xxi, explicitly addressed the constitutional, legal, and principled inconsistencies of limiting funding remedies to the abbott districts when others, including the rural bacon districts, are similarly underfunded and in dire need of assistance. justice albin departed from the majority in stating that the judicial remedy should include all students in new jersey who reside in underfunded districts, not merely those who live in the abbott districts.162 citing the extensive evidentiary record from the trial court,163 there were 205 school districts that are unable to provide the constitutionally required “thorough and efficient” education.164 with the majority proffering an unjust solution in the curtailment of the remedy to a select class of constitutionally harmed students, justice albin described the perils that await the remaining students. he referenced the problem of incessant delays that have plagued the needy bacon districts for the past fourteen years: “[t]he redress of the rights of those students [in underfunded districts] now must await a day when it may be too late for them to enjoy their right to a constitutionally adequate education.”165 given the court’s narrow tailoring of the abbott litigation and remedy to the abbott districts whose funding schemes were declared unconstitutional back in 1990, the bacon litigation should push forward, relying on the strength of justice albin’s concurrence and with their own evidentiary record, to achieve justice. b. implement the abbot t remedy because the remedy can work for all of the controversy surrounding the abbott litigation and, specifically, the remedial orders of funding parity with the wealthiest districts in new jersey and additional funding for supplemental programs such as pre-kindergarten, the entire public policy debate can be reduced to one simple question: has the remedy worked? spending without results is wasteful spending. abbott ordered parity in funding between the poor urban districts and the wealthiest suburbs because of the notion that money was a critical factor in providing a quality education. while a broader discussion of the efficacy of money in ameliorating the problems our education system faces is a fiercely debated issue that is well !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 160 abbott xxi, 20 a.3d 1018, 1095 (n.j. 2011). in sum, seventy-two percent of the state’s high-risk students were residing in districts that were below adequacy. 161 id. at 1043 (“the extent of this court’s jurisdiction in this matter starts and ends with the series of litigated proceedings that preceded this action . . . [t]his court’s jurisdiction is limited to rectification of the constitutional violation suffered by the abbott litigants.”). 162 id. at 1101 (albin, j., concurring) (“the at-risk children in the 187 underfunded non-abbott districts suffer from the same disadvantages of poverty as the children in the former abbott districts.”). 163 included in the evidence at trial was testimony from superintendents representing non-abbott school districts, one of which, buena vista regional, is a member of the bacon plaintiff class. id. at 1104, 1105. 164 id. at 1105. 165 id. at 1109. 196 bringing home the bacon vol. 2:1 beyond the scope of this note,166 a much narrower look at the impact of the funding increases from abbott is in order, and the results are promising. the one undeniable result of the abbott litigation is the substantial increase in education spending in the thirty-one abbott districts. overall, the abbott districts have far greater resources now than they did prior to the court-ordered parity of school funding in abbott iv. as of 2007, abbott districts were spending, on average, twenty percent more than the wealthiest districts in new jersey.167 for a nationwide comparison, of the one hundred largest school districts in the united states, the newark, new jersey, school district has the highest per-pupil expenditure, with a total that is 224% greater than the average of the remaining ninety-nine school districts.168 newark tops this list due to the seventy-four percent increase in education spending resulting from the parity order in abbott iv. spending, therefore, has increased significantly. successful improvements in education are evidenced in several abbott districts.169 applying the abbott remedy to the bacon districts, coupled with closely mirroring the strategies taken in the most successful abbott districts, will surely create a greater learning environment for the currently inadequately educated students. perhaps the greatest success story of abbott v. burke is union city. the demographic profile of union city schools would suggest challenges in providing an adequate education. union city is the most densely populated city in the united states, with 67,000 plus people living on just over one square mile of land.170 ninety-six percent of students in union city are latino, and a large percentage of these !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 166 the most famous critic of increasing education funding, without other reforms to the system, is eric hanushek. hanushek has argued that increasing funding for education is an inefficient and ineffective means of improving the quality of education in schools. see eric a. hanushek, the economics of schooling: production and efficiency in public schools, 24 j. econ. lit. 1141 (1986). this article has been cited several hundred times in academic papers. eric hanushek has appeared as a witness in numerous lawsuits on behalf of states, defending school funding systems from allegations of unfairness from plaintiffs. hanushek’s position in the debate regarding the efficacy of increased funding for schools has provoked considerable criticism from scholars and judges alike. see generally michael a. rebell & joseph j. wardenski, of course money matters: why the arguments to the contrary never added up (2004), available at http://www.schoolfunding.info/resource_center/research/moneymattersfeb2004.pdf. statistical analysis of the data set utilized by hanushek disputes his claim that education funding has no meaningful relation to increased educational outcomes. l.v. hedges, r.d. laine & r. greenwald, does money matter? a meta-analysis of studies of the effects of differential school inputs on student outcomes, 23 educ. res. 5 (1994). hanushek himself admitted the efficacy of increased funding while testifying in an educational equity case: “[m]oney spent wisely, logically and with accountability would be very useful indeed.” michael a. rebell, courts & kids: pursuing educational equity through the state courts 34 (2009). 167 gordon macinnes, in plain sight: simple, difficult lessons from new jersey’s expensive effort to close the achievement gap 26 (2009). 168 id. at 27. 169 see infra part iv.b (including profile of union city’s school district). 170 union city, new jersey: profile of general demographic characteristics: 2000, u.s. census bureau, http://factfinder.census.gov/servlet/qttable?_bm=y&-qr_name=dec_2000_sf1_u_dp1&ds_name=dec_2000_sf1_u&-_lang=en&-geo_id=16000us3474630 (last visited jan. 15, 2012). 2012 columbia journal of race and law 197 students are english language learners (ells). the district itself is the poorest in new jersey,171 and its per-pupil expenditures are in the bottom quarter of the abbott districts (though the expenditures still represent a seventy-two percent increase from pre-abbott levels). yet union city has persevered, becoming a shining example of a poor district facing immense difficulties that nevertheless has narrowed the achievement gap between its disadvantaged students and students in wealthier districts. in the span of only nine years after the parity-funding order in abbott iv, proficiency amongst union city eighth graders has risen dramatically and approached the statewide average of proficiency amongst non-abbott students. this achievement exemplifies the goal of abbott and demonstrates both the efficacy of the remedy and that such gains are possible, and not merely ideals.172 gordon macinnes argues that the most important reason driving the great success of union city in improving its quality of education is the emphasis on early education programs that stress early literacy.173 an analysis of specific education reforms is best left to educators and experts on education policy, but a brief synopsis here assists in proving why the abbott remedy is a useful tool if properly instituted and governed at the local level. in studying the efficacy of post-abbott reform, gordon macinnes studied several districts that sought to emulate the reform successes taking place in union city. applying their now-increased resources in a focused, intelligent manner, the districts that emulated union city’s emphasis on early childhood literacy all saw rapid gains. most promising is elizabeth, new jersey’s fourth largest and sixth poorest school district. elizabeth’s school district redoubled its emphasis on early elementary education and saw third grade performance improve by sixteen percent in only four years.174 these districts have utilized their increased resources from the abbott remedy (funding parity bestowed upon them by abbott iv and the mandated early education programs from abbott v) in a manner that can be replicated in the bacon districts as well as the remaining abbott districts. what the bacon districts lack is the adequate funding to aggressively pursue early education and increase literacy rates. union city is proof positive that astronomical per-pupil expenditures, rising to the level of newark, are not necessary to succeed but it also shows the efficacy of increased funding in impoverished areas. the court should not and cannot set new jersey education curriculum, but it should look to the union city experiment and strategy as a persuasive statement that their rulings and remedial orders can work. v. conclusion the elc’s initial complaint in the abbott litigation emphasized the impoverished communities and resulting educational inadequacies found in poor school districts: the money shortages . . . were the direct cause of the educational inadequacies in the poor districts—the dilapidated buildings, the bigger classes, the lower-paid and less!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 171 measured by student eligibility for the free lunch program, a widely used means of determining poverty level of students. macinnes, supra note 167, at 34. 172 the gap in literacy between union city students and non-abbott students has closed from twenty-six percentage points to roughly equal in math, and from twenty-three percentage points to a mere three in language arts. id. at 35. for a visual representation of the gains made in nine years compared to the average non-abbott district student and average abbott district student, see id. fig.5.1. 173 id. at 36. 174 id. at 78. 198 bringing home the bacon vol. 2:1 experienced teachers. yet the children who attended these inadequate schools had overwhelming educational needs . . . for they came from families with little money or education, scored poorly on standardized tests, and dropped out in large numbers. in effect, students who needed the most got the least . . . .175 these same principles and beliefs that were present in the earliest abbott filings, and are evidenced in myriad of passages from subsequent abbott decisions, can and should have a universal appeal. the bacon districts have sufficiently proven a constitutional violation of those students’ right to a “thorough and efficient” education at the appellate division level of the new jersey judiciary. individual analyses of the districts conducted by the state incurred long delays, and when the studies were finally conducted, they were not thorough and quick in declaring that the districts did not need any additional funding under sfra. the sfra, in subsequent years, has been underfunded, creating budget shortfalls for the bacon districts, rendering the education they provide their students even more constitutionally deficient than anticipated by the lackadaisical nj doe studies. the indignation at the delays and constitutional deprivations that took place in abbott, and the resulting court-ordered remedies, should be directed towards the aggrieved schoolchildren in the rural bacon school districts. an entire generation of students has entered into constitutionally deficient schools in bacon districts at kindergarten and graduated high school during the time in which this matter has languished in the courts. the courts must address the students’ aggrieved constitutional rights, as their educational futures require the full protection of the new jersey state constitution. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 175 yaffe, supra note 4, at 100. 6 nelson final 2014 columbia journal of race and law 257 tribe-sanctioned nuclear waste facilities and their involuntary neighbors r. benjamin nelson* in 2010, president barack obama appointed the blue ribbon commission on america’s nuclear future (brc) in order to study options for dealing with nuclear waste as alternatives to replace permanent disposal at yucca mountain, nevada. the brc recommended a new voluntary siting mechanism based on the nuclear waste negotiator (nwn), an expired program decried as “radioactive racism” for its almost exclusive focus on native americans. the nwn inspired numerous articles supporting or opposing tribes’ efforts to host nuclear waste facilities. rather than focus on the tribal majorities that have pursued such facilities, as previous scholarship has done, this note refocuses the analysis on the substantial tribal minorities that have actively opposed their leaderships’ decisions to host such facilities. the note has two main goals. first, it seeks to elucidate the uphill legal battle that minority tribe members face under current law if they decide to challenge the bureau of indian affairs’ approval of the lease for a facility that their tribal leadership has signed. second, it offers specific recommendations for congress to implement as part of its impending nuclear waste legislation. i. introduction ………………………………………………………….. 258 ii. nuclear waste and disposal efforts ……………………….. 262 a. the generation of radioactive waste ……………………………… 262 b. the blue ribbon commission’s proposal for the voluntary siting of nuclear waste facilities ………………………………….. 263 c. the origin of attempts to site nuclear waste storage facilities on native american reservations ……………………………………... 264 iii. native americans and nuclear waste ……………………… 265 a. the indian long term leasing act …….………………………..... 265 b. the skull valley band attempts to site a facility on its reservation …………………………………………………………... 267 * j.d. 2014, columbia law school; b.a. 2010, georgetown university. the author would like to thank professor patricia j. beneke, steven p. mcsloy, and professor michael b. gerrard. tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 258 iv. the lack of legal remedies for minority tribe members …………………………………………………………………... 269 a. minority tribe members would first have to exhaust their administrative remedies ………………………………………... 270 b. a successful action for injunctive relief would only delay construction of the facility ……………………………………… 270 1. nepa claims …………………………………………….. 271 2. iltla claims ……………………………………………. 271 c. frcp 19 may bar most minority tribe members from asserting iltla claims because the tribe has sovereign immunity and is likely a required party ………………………………………….. 273 d. minority tribe members are unlikely to prevail in an action for damages under the ilta because the iltla probably fails to establish an enforceable fiduciary duty on the bia that runs to them …………………………………. 275 v. recommendations for nuclear waste legislation …. 278 vi. conclusion ……………………………………………………………… 281 i. introduction the year 2012 was the hottest on record in the united states and the second most volatile as measured by the damage from natural disasters.1 scientists “doubt that such a striking new record would have been set without the backdrop of global warming caused by the human release of greenhouse gases,” one of which is carbon dioxide.2 carbon dioxide represents 82.5% of u.s. greenhouse gas emissions,3 and the electricity industry accounts for 38% of these emissions,4 primarily due to coal and gas-fired power plants.5 in order to achieve maximum reductions in greenhouse gases, many believe that the u.s. should invest in nuclear energy.6 before it can be a viable fuel option, however, policy-makers must devise a solution to the problem of how to dispose of the radioactive waste that is regularly 1 justin gillis, not even close: 2012 was hottest ever in u.s., n.y. times, jan. 9, 2012, at a1. 2 id. 3 u.s. envtl. prot. agency, draft inventory of u.s. greenhouse gas emissions and sinks: 1990-2012 es-7 (2014), available at http://www.epa.gov/climatechange/downloads/ghgemissions/us-ghginventory-2014-main-text.pdf. 4 id. at 3-14. 5 see sources of greenhouse gas emissions: electricity sector emissions, u.s. envtl. prot. agency, http://www.epa. gov/climatechange/ghgemissions/sources/electricity.html (last updated apr. 17, 2014). 6 see oliver morton, special report on nuclear energy: the dream that failed, the economist, mar. 10, 2012, at 13; see also blue ribbon commission on america’s nuclear future: memorandum for the secretary of energy, 75 fed. reg. 5485, 5485 (feb. 3, 2010). 2014 columbia journal of race and law 259 generated by nuclear power plants. this issue has been called “one of the most intractable problems facing the nuclear power industry throughout the world.”7 even without an expansion in nuclear power, however, the question remains of what to do with the 2,000–2,400 metric tons of waste that is produced annually8 by the u.s.’s 104 nuclear reactors,9 in addition to the existing 65,000 metric tons that lack a permanent storage facility.10 for two decades, the federal government pursued a plan to house a repository at yucca mountain, nevada, despite fierce opposition from nevadans.11 even if this facility were to ever receive wastes—an unlikely prospect given current political realities 12 —it would almost immediately reach its capacity, necessitating a new repository.13 concurrent with its efforts to host a permanent repository at yucca mountain, the federal government was also attempting to host a temporary storage facility for wastes. chief among these efforts was the creation of a short-lived office of the nuclear waste negotiator (nwn) in order to incentivize, through monetary compensation, states and indian tribes to host such a temporary facility.14 a lack of interest among other communities15 ensured that tribes were almost exclusively the only parties that sought to host one,16 and the nwn’s implementing statute provided for the program’s automatic defunding in 1995 before the successfully siting of a facility.17 a private effort that evolved out of the nwn program involving the skull valley band of goshute indians (“skull valley band”), a tribe located outside of salt lake city, utah, also failed due largely to political opposition within the state.18 these voluntary efforts to site such hazardous and nuclear waste projects have simultaneously been decried as “radioactive racism”19 and lauded for providing much-needed economic benefits to tribes and for fostering their self-determination.20 7 mass. inst. tech, the future of nuclear power: an interdisciplinary study 10 (2003), available at http://web.mit.edu/nuclearpower/pdf/nuclearpower-full.pdf. 8 blue ribbon comm’n on america’s nuclear future, report to the secretary of energy 4 (2012) [hereinafter blue ribbon commission report], available at http://brc.gov/sites/default/files/documents /brc_finalreport_jan2012.pdf. 9 map of power reactor sites, u.s. nuclear regulatory comm’n, http://www.nrc.gov/reactors/operating/ map-power-reactors.html (last updated mar. 29, 2012). 10 blue ribbon commission report, supra note 8, at 14. 11 see richard b. stewart & jane b. stewart, fuel cycle to nowhere: u.s. law and policy on nuclear waste 4 (2011). 12 see id. at 9, 187. the department of energy (doe) withdrew its license application for the site “with prejudice” on march 3, 2010. mark holt, cong. res. serv., civilian nuclear waste disposal 1 (2011), available at http://www.fas.org/sgp/crs/misc/rl33461.pdf. 13 see office of civilian radioactive waste mgmt., the report to the president and the congress by the secretary of energy on the need for a second repository 1 (2008) [hereinafter need for a second repository], available at http://www.brc.gov/sites/default/files/documents/second_repository_rpt_120908. pdf; see also holt, supra note 12, at 12; 42 u.s.c. § 10134(d) (2012). 14 see infra part ii.c. 15 see pub. citizen, radioactive racism: the history of targeting native american communities with high-level atomic waste dumps (2014), available at http://www.citizen.org/documents/ radioactiveracism.pdf. 16 see u.s. nuclear regulatory comm’n, mrs grant applicant list (1997), available at pbadupws.nrc. gov/docs/ml0037/ml003733648.pdf. 17 see 42 u.s.c. § 10250 (2012). 18 see infra part iii.b. 19 radioactive racism, supra note 15. 20 see, e.g., jana l. walker & kevin gover, commercial solid and hazardous waste disposal projects on indian lands, 10 yale j. on reg. 229, 231 (1993). tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 260 in 2010, president barack obama appointed the blue ribbon commission on america’s nuclear future (brc) in order to study other options for dealing with nuclear waste.21 in 2012, the brc recommended a new voluntary mechanism for siting a repository involving states, municipalities, and tribes.22 the brc suggested that this mechanism should be implemented by creating a program similar to the expired nwn, which would provide compensation to parties willing to host a facility.23 if history is an indication, tribes will almost certainly be prominently represented among the applicants in such a process.24 the brc’s proposals have brought voluntary siting issues back to the forefront of the nuclear waste debate. previous scholarship on native american tribes’ voluntary efforts to host nuclear waste storage facilities dates from the era of the nwn program. on one side of the debate are those who believe that tribes are fortunate to receive such offers for economic development and should have a right to pursue them freely.25 on the other side are scholars who use concepts such as the federal trust responsibility and environmental justice to cast doubt on the fairness of allowing tribes to make these decisions. these scholars emphasize the environmental hazards of such projects and the degree to which the poor economic conditions of the tribes have a coercive effect on their decisions.26 still others have tried to bridge the gap between environmentalists and self-determinationists in various ways.27 while all 21 see holt, supra note 12, at 2. 22 blue ribbon commission report, supra note 8, at viii. 23 id. 24 see infra part ii.c. 25 see, e.g., walker & gover, supra note 20, at 231 (“this article advocates that the evaluation of the viability of waste disposal projects to be developed on indian lands should be governed by the overriding goals of tribal selfdetermination and economic self-sufficiency, not public sentiment.”); kevin gover & jana l. walker, escaping environmental paternalism: one tribe’s approach to developing a commercial waste disposal project in indian country, 63 u. colo. l. rev. 933, 933 (1992) (“[i]n those cases where a community wishes to have [a waste disposal facility], its decision is to be respected.”); lincoln l. davies, skull valley crossroads: reconciling native sovereignty and the federal trust, 68 md. l. rev. 290, 365–76 (2009) (arguing for a new model of federal-tribal relations that tilts the balance between the trust doctrine and native sovereignty in favor of the latter); mark poole, nuclear sovereignty: reservation waste disposal for the twenty-first century and beyond?, 4 hastings w.-nw. j. envtl. l. & pol’y 165, 165 (1998) (“despite the longstanding conflicts of law among federal, state, and native american sovereigns and the complexity of environmental regulation and health and safety issues in the area of nuclear disposal, the mescalero apache should be afforded the opportunity through selfdetermination to pursue the location of a private nuclear waste disposal facility on reservation land.”). 26 see, e.g., jon d. erickson, duane chapman & ronald e. johnny, monitored retrievable storage of spent nuclear fuel in indian country: liability, sovereignty, and socioeconomics, 19 am. indian l. rev. 73, 103 (1994) (“the siting of an mrs on an indian reservation is unethical and dangerous.”); nancy b. collins & andrea hall, nuclear waste in indian country: a paradoxical trade, 12 law & ineq. 267, 270 (1994) (“the essence of the proposed waste agreement is land for money.”); charles k. johnson, a sovereignty of convenience: native american sovereignty and the united states government's plan for radioactive waste on indian land, 9 st. john’s j. legal comment. 589, 594 (1994) (“[t]he united states government has now discovered a new useful commodity belonging to the native american community. that commodity is indian national sovereignty.”); but see, sierra m. jefferies, environmental justice and the skull valley band of goshute indians’ proposal to store nuclear waste, 27 j. land res. & envtl. l. 409, 409 (2007) (arguing that expanding environmental justice to include voluntary siting scenarios, such as the skull valley band’s, risks environmental justice “being co-opted into the larger environmental or civil rights movements”); james l. huffman, an explanatory essay on native americans and environmentalism, 63 u. colo. l. rev. 901, 903 (1992) (“while white americans pursue harmony with mother nature from their comfortable offices on the potomac and their high tech kayaks on the colorado, native americans will struggle to feed their children and make sense of a culture not of nature but of alcohol, poverty and desperation.”). 27 see, e.g., louis g. leonard, iii, sovereignty, self-determination, and environmental justice in the mescalero apache’s decision to store nuclear waste, 24 b.c. envtl. aff. l. rev. 651, 687–92 (1997) (arguing that environmental justice and self-determination are compatible because environmental justice only seeks to empower underrepresented communities with the knowledge they need to make an informed decision); martin d. topper, environmental protection in indian country: equity or self-determination, 9 st. john’s j. legal comment. 693, 701 (1994) (“[t]he special relationship between indians and the federal government requires that the special legal status of tribal governments be considered when 2014 columbia journal of race and law 261 of this prior scholarship is useful in setting the tone of the current debate over voluntary siting, it emphasizes the tribe members who support the construction of the facility on their reservation without adequately considering the concerns of minority tribe members who oppose the facility. minority tribe members are a critical constituency in the siting decision because only a bare majority of members have tended to support nuclear waste projects. 28 moreover, current voluntary siting proposals do not differentiate between the facility’s prospective neighbors who may have voted against the facility and tribe members living off the reservation who may have supported it.29 rather than harmonizing previous scholarship on environmental justice and self-determination, this note seeks to refocus the analysis on the minority of tribe members who have chosen to actively oppose their tribe’s decision to host a repository or storage facility. the note has two main goals. first, it seeks to elucidate the uphill legal battle that minority tribe members face, under current law, if they decide to challenge the bureau of indian affairs’ (bia)30 approval of the lease for a facility that their tribal leadership has signed. while some members might be able to significantly delay the project or seek damages from the bia in case of an accident,31 they will be unable to thwart the project solely through a legal challenge. second, it offers specific recommendations for congress to implement as part of its impending nuclear waste legislation. congress should ensure that minority tribe members’ interests are adequately considered and their burden is lessened in the event that a facility is sited on their reservation. the note is organized as follows: part ii provides more background on the nuclear waste issue. specifically, it addresses the existing and future production of waste, past efforts to site storage facilities and repositories, and the current voluntary siting proposal in the brc’s report. part iii addresses the history of native americans and nuclear waste through a case study of the skull valley band’s attempt to site a storage facility on its reservation. it also discusses the indian long term leasing act of 1955 (iltla),32 the federal law that requires bia approval of tribal leases, which served as a basis for the bia’s disapproval of the skull valley band’s lease, and would presumably apply to a future lease. part iv discusses the difficulty that minority tribe members would face in court if they attempted to enjoin the construction of the facility or seek damages from the bia for a leak. first, members could sue the bia under the administrative procedure act (apa)33 for violations of the iltla or the national environmental policy act (nepa).34 if successful, tribe members would only achieve a delay in construction of the facility, not the death of the project. moreover, rule 19 may bar their iltla claim because the tribe is probably a required party and cannot be sued without its consent. second, tribe providing protection from the risks to health and environment caused by environmental pollution on or near indian lands.”). 28 see infra part iv.c. 29 see infra part ii.b–c (discussing the nwn’s process of deferring to majority votes and the brc’s proposal to base its voluntary siting method on the nwn); see infra part iii.b (discussing margene bullcreek’s efforts to prevent other tribe members from siting a nuclear waste facility nearby her residence). 30 the bia is an agency within the department of the interior (doi). 31 many nuclear waste storage facilities are generally considered to be safe, but there have been some alarming hazards involving such facilities. see, e.g., kirk johnson, underground nuclear tanks leaking in washington state, n.y. times, feb. 22, 2013, at a12. 32 pub. l. no. 84-255, 69 stat. 539 (1955) (codified as amended at 25 u.s.c. § 415 (2012)). 33 pub. l. no. 79-404, 60 stat. 237 (1946) (codified as amended in scattered sections of 5 u.s.c. (2012)). 34 pub. l. no. 91-190, 83 stat. 852 (1970) (codified as amended at 42 u.s.c. §§ 4321–4347 (2012)). tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 262 members could sue the bia for damages under the indian tucker act35 for breach of the bia’s trust responsibility under the iltla, but will be unlikely to succeed unless they own the land on which the facility is built. in light of the lack of legal remedies for minority tribe members, part v makes several recommendations for congress to consider in its forthcoming nuclear waste legislation. finally, part vi presents a brief summary of the note’s main themes. ii. nuclear waste and disposal efforts a. the generation of radioactive waste radioactive waste is almost exclusively a byproduct of the production of nuclear weapons and the generation of electricity by nuclear power plants.36 much of it must be isolated from human contact for thousands of years because of its exceedingly long half-life.37 for several decades, there has been a broad consensus in the u.s. that the only way to dispose of the country’s most dangerous nuclear waste in perpetuity is through deep geological disposal.38 while such a repository has been found for various defense-related wastes,39 the problem since the passage of the nuclear waste policy act of 1982 (nwpa of 1982)40 has been to find a place for spent nuclear fuel (snf) and other civilian high-level waste (hlw).41 currently, about 65,000 metric tons of snf is in temporary storage at the reactors that generated it,42 posing public health, proliferation, and terrorism-related concerns.43 this total is increasing steadily 35 63 stat. 102 (codified as amended at 28 u.s.c. § 1505 (2012)). 36 see michael b. gerrard, whose backyard, whose risk: fear and fairness in toxic and nuclear waste siting 25 (1995). 37 richard b. stewart, solving the u.s. nuclear waste dilemma, 40 envtl. l. rep. news & analysis 10783 (2010). 38 id. at 10785; see also james d. werner, cong. res. serv. 1, u.s. spent nuclear fuel storage, (may 24, 2012), available at http://www.fas.org/sgp/crs/misc/r42513.pdf. 39 see waste isolation pilot plant, u.s. dep’t of energy, http://www.wipp.energy.gov (last visited apr. 20, 2014). 40 pub. l. no. 97-425, 96 stat. 2201 (1983) (codified as amended at 42 u.s.c. §§ 10101–10270 (2012)). 41 there are various classifications of radioactive wastes. snf consists of fuel rods that were used to heat the water that runs nuclear power plants but have become too radioactive and need to be discarded. see gerrard, supra note 36, at 28; see also blue ribbon commission report, supra note 8, at 96. hlw is a product of snf reprocessing, an activity that president ford ordered terminated in the civilian context in 1976. see gerrard, supra note 36, at 28; see also blue ribbon commission report, supra note 8, at 96. transuranic (tru) waste is “waste other than snf and hlw that contains concentrations of transuranic elements.” blue ribbon commission report, supra note 8, at 96. mill tailings are refuse from uranium ore processing. id. low-level waste (llw) is “waste other than snf, hlw, tru waste, or mill tailings.” id. additionally, the term “mixed waste” includes a mix of chemically hazardous waste and radioactive elements. mixed waste is subject to regulation by the doe or nuclear regulatory commission (nrc) under the atomic energy act (aea), 42 u.s.c. § 2011 et seq. (2012), and by the environmental protection agency (epa) under the resource conservation and recovery act (rcra), 42 u.s.c. § 6901 et seq. (2012). see holt, supra note 12, at 11. the waste classification system has been criticized for focusing too heavily on the source of the waste as opposed to its radioactivity. accordingly, the nrc is currently working on a new system that would base the classification on the level of risk posed by the waste. blue ribbon commission report, supra note 8, at 98. 42 blue ribbon commission report, supra note 8, at 14. in addition to the increasing amount of snf that requires disposal, there remain a few thousand metric tons of hlw from the era of civilian reprocessing. see supra note 41. 43 see safety and security of commercial spent nuclear fuel storage: public report, nat’l res. council of the nat’l acads. 5–11 (2006), available at www.nap.edu/catalog/11263.html; see also holt, supra note 12, at 12–13. 2014 columbia journal of race and law 263 at a rate of 2,000–2,400 metric tons of snf per year.44 the u.s.’s reliance on storage, rather than disposal, is so singular that the brc has concluded, “[s]torage is not only playing a more prominent and protracted role in the nuclear fuel cycle than once expected, it is the only element of the back end of the fuel cycle that is currently being deployed on an operational scale in the united states.”45 b. the blue ribbon commission’s proposal for the voluntary siting of nuclear waste facilities in 2010, when it became clear that progress on the yucca mountain repository would not proceed for the foreseeable future, 46 president obama created the brc in 2010 to conduct a “comprehensive review of policies for managing the back end of the nuclear fuel cycle, including all alternatives for the storage, processing, and disposal of civilian and defense used nuclear fuel and nuclear waste.”47 released on january 26, 2012,48 the brc report advocated a “new, consent-based approach to siting future nuclear waste management facilities,” the creation of a new agency to manage nuclear waste, and the development of storage facilities alongside repositories.49 the brc’s proposal was inspired by the nwn50 and recommended that the new siting process should resemble the nwn albeit under different leadership.51 since the brc issued its report, senator ron wyden (d-or) introduced s. 1240, the nuclear waste administration act of 2013, in the 113th congress in order to create an agency to implement the consent-based approach to nuclear waste repository siting. 52 the bill specifies a preference for the co-location of storage facilities and repositories.53 the committee on energy and natural resources held a hearing on the bill on july 30, 2013.54 the issuance of the brc report and introduction of s. 1240 require a reconsideration of the relationship of native americans to nuclear waste because of the similarity of the proposed voluntary siting method to the process that almost led to the siting of a nuclear waste storage facility on the skull valley band’s reservation in the 1990s and 2000s. 44 nat’l res. council of the nat’l acads. at 4. 45 blue ribbon commission report, supra note 8, at 33. 46 while this note focuses on attempts to site nuclear waste facilities on indian reservations, the u.s. has also attempted to site a repository on federal land at yucca mountain. the nwpa of 1982 ordered the doe to recommend three sites for detailed study, called “characterization,” as potential repositories. 42 u.s.c § 10132(b)(1)(b) (2012). the doe proposed the sites, which were approved by president reagan in 1986, gerrard, supra note 36, at 30, but congress intervened with the nuclear waste policy amendments act of 1987 (nwpaa of 1987), deciding to only allow site characterization at yucca mountain, omnibus budget reconciliation act of 1987, pub. l. no. 100-203, § 5011, 101 stat. 1330 (1987) (codified at 42 u.s.c. § 10172(a) (2012)). because of its treatment of nevada, some have termed the nwpaa of 1987 the “screw nevada [a]ct of 1987.” leave well alone: the best thing to do with nuclear waste is to stash it away, not reprocess it, the economist (mar. 10, 2012), http://www.economist.com/node/21549102. for the moment, nevada has defeated the yucca mountain project by convincing the doe to withdraw its license application for the site “with prejudice” on march 3, 2010, holt, supra note 12, at 1, but the tide may turn again if the political climate changes. see stewart & stewart, supra note 11, at 9, 187. 47 blue ribbon commission on america’s nuclear future: memorandum for the secretary of energy, 75 fed. reg. 5,485, 5,485 (feb. 3, 2010). even if yucca mountain became a politically viable option, the quantity of waste currently in existence exceeds its statutory capacity, and an additional repository would have to be constructed. see need for a second repository, supra note 13, at 1; see also holt, supra note 12, at 12; 42 u.s.c. § 10134(d) (2012). 48 matthew l. wald, revamped search urged for a nuclear waste site, n.y. times, jan. 27, 2012, at a13. 49 see blue ribbon commission report, supra note 8, at vii. 50 see id. at 40. 51 see id. at viii. 52 s. 1240, 113th cong. (2013). 53 id. at §§ 305(b)(2)(b), 306(c)(2). 54 to consider the nuclear waste administration act of 2013, hearing before the subcomm. on energy & nat. res., 113th cong. (2013), available at http://www.gpo.gov/fdsys/pkg/chrg-113shrg85875/pdf/chrg-113shrg85875.pdf. tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 264 c. the origin of attempts to site nuclear waste storage facilities on native american reservations in 1987, congress mandated that the doe study the need for a monitored retrievable storage facility (mrs).55 storage facilities are used to prepare waste for placement in a repository, but unlike repositories, they are not intended to house waste permanently.56 in march 1987, doe recommended a site in tennessee for an mrs facility, but due to political pressure from the state, congress scrapped the plan later that year.57 instead, congress created the nwn in order to find a state or tribe that was willing to accept a repository or an mrs facility.58 providing for a three-tiered program by which states and tribes could apply to host facilities with each tier growing closer to actual siting of the facility, the statute authorized the nwn to negotiate agreements and provide for compensation for affected states, municipalities, and tribes.59 phase i meant initial consideration of the site; phase ii-a required public information hearings; phase ii-b required feasibility studies; and the final phase was siting of the facility.60 the initiative ran out of time before a facility was sited because the statute provided for the nwn to be automatically dissolved in 1995.61 during the operation of the nwn program, nuclear waste negotiator david leroy conducted a concerted campaign to find native american hosts for the facilities. addressing the national congress of american indians in 1991, leroy claimed, “with atomic facilities designed to safely hold radioactive materials with half-lives of thousands of years, it is the native american culture and perspective that is best designed to correctly consider and balance the benefits and burdens of these proposals.”62 when applications arrived for phase i mrs grants, sixteen out of twenty came from native american tribes, and all phase ii applicants were tribes.63 nevertheless, the nwn expired in 1995 without having made any substantial progress on siting because host states had not supported the process.64 for example, when the mescalero apache nation of new mexico appeared on the verge of hosting an mrs facility, senator jeff bingaman (d-nm) succeeded in attaching an appropriations rider that effectively killed the project.65 the skull valley band was one of the phase ii applicants under the nwn program.66 when the nwn dissolved in 1995, the skull valley band met with a private consortium of utilities and negotiated a lease for a private storage facility on their reservation.67 after reviewing the environmental impact 55 42 u.s.c. § 10161(b)(1) (2012). 56 see john e. cantlon, u.s. nuclear waste technical review bd., nuclear waste management in the united states: the nuclear waste technical review board’s perspective 9–10 (1996), available at http://www.nwtrb.gov/reports/wastemgt.pdf. 57 omnibus budget reconciliation act of 1987, pub. l. no. 100-203, § 5021, 101 stat. 1330 (1987) (codified at 42 u.s.c. § 10162(a) (2012)). 58 id. § 5041 (codified at 42 u.s.c. § 10242(b)(2) (2012)). with yucca mountain as the designated site for the repository, attention turned toward siting the mrs facility. 59 42 u.s.c. § 10243(d)(2) (2012). 60 collins & hall, supra note 26, at 291. 61 see 42 u.s.c. § 10250 (2012). 62 radioactive racism, supra note 15. 63 see mrs grant applicant list, supra note 16. 64 see blue ribbon commission report, supra note 8, at 23. 65 see noah sachs, the mescalero apache indians and monitored retrievable storage of spent nuclear fuel: a study in environmental ethics, 36 nat. resources j. 881, 885 (1996). 66 mrs grant applicant list, supra note 16, at 3. 67 davies, supra note 25, at 334. 2014 columbia journal of race and law 265 statement (eis), the bia decided to disapprove the lease.68 although a united states district court determined that the bia’s disapproval was “arbitrary and capricious,”69 the doi did not appeal that determination.70 it is likely that staunch political opposition by the people of utah contributed to the project’s demise despite the court ruling that seemed to favor the project’s backers.71 part iii examines the skull valley band’s attempt to host a storage facility in greater detail. iii. native americans and nuclear waste native americans have had a long and troubled history with nuclear materials,72 but their involvement in the waste disposal issue dates to the relatively recent era of the nwn.73 this part discusses native americans’ experience with nuclear waste through a case study of the skull valley band’s attempt to build a storage facility and the bia’s disapproval of its lease due largely to political pressure imposed by non-indians within the state. before turning to the skull valley band, however, it is necessary to review the iltla, the leasing statute that allows the bia to review and approve leases of indian lands. a. the indian long term leasing act the executive branch must always consider the interests of the tribes when conducting activities or making decisions affecting them. “it is fairly clear that any federal government action is subject to the united states' fiduciary responsibilities toward the indian tribes.”74 one of the ways in which congress has required that the executive branch exercise its trust responsibility is by giving the executive the power to approve leases of indian lands. native americans are generally unable to execute long-term business leases without first obtaining the bia’s approval.75 the iltla was designed to “protect[] native american interests by insuring that their land transactions with third parties are advantageous.”76 it allows native americans to lease lands that they own with the approval of the secretary of the interior acting through the bia.77 leases may be approved for a period of up to ten, twenty-five, or ninety-nine years, depending on the purpose and the tribe 68 u.s. bureau of indian affairs, record of decision for the construction and operation of an independent spent fuel storage installation (isfsi) on the reservation of the skull valley band of goshute indians (band) in tooele county, utah, 5 (2006) [hereinafter skull valley rod], available at http://www.deq.utah.gov/issues/topics/highlevelwaste/docs/2006/sep/rod%20pfs%2009072006.pdf. 69 skull valley band of goshute indians v. davis, 728 f. supp. 2d 1287, 1295 (d. utah 2010). 70 judy fahys, interior won’t fight ruling on nuclear site, salt lake trib (sept. 28, 2010), http://www.sltrib.com/ sltrib/home/50365983-76/interior-department-nuclear-ruling.html.csp. 71 see davies, supra note 25, at 338–44; see also jefferies, supra note 26, at 409. 72 see generally peter h. eichstaedt, if you poison us: uranium and native americans (1994). 73 see supra part ii.c. 74 nance v. epa, 645 f.2d 701, 711 (9th cir. 1981) (citing seminole nation v. united states, 316 u.s. 286, 295 (1942)). 75 the helping expedite and advance responsible tribal homeownership (hearth) act allows tribes to circumvent bia approval of long-term residential leases and shorter-term business leases if the leases are executed under bia-approved tribal regulations. see pub. l. no. 112-151, § 2, 126 stat. 1150 (2012) (codified at 25 u.s.c.a. § 415(h) (2013)). 76 utah v. doi, 45 f. supp. 2d 1279, 1283 (d. utah 1999) (citing webster v. united states, 823 f. supp. 1544, 1550 (d. mont. 1992), aff’d, 22 f.3d 221 (9th cir. 1994); hawley lake homeowners’ ass’n v. deputy assistant sec’y, 13 i.b.i.a. 276, 288–89 (1985)). 77 see 25 u.s.c. § 415(a) (2012). tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 266 involved; and the parties can extend them once for up to twenty-five years.78 if native americans desire to lease their land for a longer period of time, as a nuclear waste repository would require, congress would have to amend the statute79 or use its plenary power to expressly authorize the action.80 further, the secretary must consider various factors, commonly referred to as § 415(a) factors, before approving any lease. specifically, [t]he secretary of the interior shall first satisfy himself that adequate consideration has been given to the relationship between the use of the leased lands and the use of neighboring lands; the height, quality, and safety of any structures or other facilities to be constructed on such lands; the availability of police and fire protection and other services; the availability of judicial forums for all criminal and civil causes arising on the leased lands; and the effect on the environment of the uses to which the leased lands will be subject.81 the implementing regulations for 25 u.s.c. § 415(a) at 25 c.f.r. part 162 were revised in 2013.82 the change has been called “the most comprehensive reform of federal regulations governing native american land surface leasing in more than 50 years.”83 replacing the former dichotomy between agricultural and non-agricultural leases, the bia now applies different regulations for residential, business, and wind and solar resource leases.84 “commercial or industrial leases for retail, office, manufacturing, storage, biomass, waste-to-energy, or other business purposes” fall under the business leasing provisions in subpart d.85 the bia “will approve”86 a business lease unless it meets one of following three conditions: “[t]he required consents have not been obtained from the parties to the lease,” “[t]he requirements of this subpart have not been met,” or “[the bia] find[s] a compelling reason to withhold [its] approval in order to protect the best interests of the indian landowners.”87 before the bia approves a lease, subpart d requires that it “determine that the lease is in the best interest of the indian landowners.”88 this determination requires the bia to “[i]dentify potential environmental impacts and ensure compliance with all applicable environmental laws, land use laws, and ordinances;” “assure [itself] that adequate consideration has been given to the factors in 25 u.s.c. § 415(a);” and “[r]equire any lease modifications or mitigation measures necessary to satisfy any requirements including any other federal or tribal land use requirements.”89 the bia must “defer, to the maximum extent possible, to the indian landowners' determination that the lease is in their best interest” and cannot “unreasonably withhold approval of a lease.”90 78 see id. 79 skull valley rod, supra note 68, at 29. 80 see note 223 infra. 81 25 u.s.c. § 415(a) (2012). 82 residential, business, and wind and solar resource leases on indian land, 77 fed. reg. 72,440, 72,440 (dec. 5, 2012). 83 nancy j. appleby, doing business on tribal lands, risk mgmt. ass’n j., july–aug. 2012, at 53. 84 residential, business, and wind and solar resource leases on indian land, 77 fed. reg. at 72,440. 85 25 c.f.r. § 162.401(a)(4) (2014). 86 the bia has sixty days in which to make this approval once all documents have been submitted, unless it requires more time to conduct reviews. id. § 162.440(b)(2) (2014). 87 id. § 162.441(a)(1–3) (2014). 88 id. § 162.440(a) (2014). 89 id. § 162.440(a)(2–4) (2014). 90 id. § 162.441(b–c) (2014). 2014 columbia journal of race and law 267 although these regulations were not applicable when the skull valley band attempted to host a storage facility, an understanding of them will be necessary for future minority tribe members, and they provide a general idea of how the bia has applied the approval procedure in practice in recent years. b. the skull valley band attempts to site a facility on its reservation the skull valley goshute reservation is located within the geographical boundaries of tooele county, utah, about fifty miles west of salt lake city.91 it consists of 18,000 acres that were set aside by executive order in 1917 and 1918.92 while 134 members belong to the tribe, only about fifteen to twenty of them live on the reservation.93 toxic industries surround the reservation, including a weapons testing center, a storage facility for nerve agents, a magnesium production facility, two power plants, and others.94 levels of poverty and unemployment on the reservation are very high,95 as the land has little economic potential.96 indeed, most reservation lands are unproductive because the federal government intentionally set aside the least productive land as reservations.97 thus, in order to bring much needed income to the reservation, the tribe applied for and received phase i and ii-a grants from the nwn to study the possibility of hosting a nuclear waste storage facility.98 as discussed earlier, the nwn program was short-lived.99 when the nwn program expired in 1995, a private utility consortium formed to continue progress towards the siting of a facility, but the skull valley band did not begin negotiations with this consortium immediately.100 the mescalero apache tribe, another one of the phase ii-a grant recipients, approached the consortium and proposed its own deal.101 in march 1995, the mescalero apaches voted 593-372 to complete negotiations with the consortium, a miraculous occurrence since in january 1995 the tribe had voted 490-362 to reject the facility.102 there were accusations among minority tribe members that the vote had been rigged by false claims and the promise of cash rewards.103 despite the tribe’s newfound support for the project, the two parties failed to strike a final agreement, and the project collapsed in 1996.104 after the mescalero apaches withdrew, the skull valley band met with some of the same utilities, which had created a consortium called private fuel storage, llc (pfs),105 and proposed their own deal.106 91 jefferies, supra note 26, at 410. 92 id. at 409. 93 id. 94 see id. at 410–11. 95 see david rich lewis, skull valley goshutes and the politics of nuclear waste, in native americans and the environment: perspectives on the ecological indian 304, 320 (michael e. harkin & david rich lewis eds., 2007). 96 see jefferies, supra note 26, at 410. 97 leonard, supra note 27, at 656. 98 see davies, supra note 25, at 332. 99 see supra part ii.c. 100 see poole, supra note 25, at 167. 101 id. 102 id. at 168. 103 id. 104 id. 105 see generally, nrc considers application for spent fuel storage facility on skull valley goshute indian reservation in utah, u.s. nuclear reg. comm’n (jul. 22, 1997), available at http://pbadupws.nrc.gov/docs/ml0037 /ml003711168.pdf. 106 see davies, supra note 25, at 334. tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 268 on may 20, 1997, the skull valley band signed a lease with pfs,107 and the bia issued a “conditional approval” on may 23.108 nevertheless, the project was not without significant dissent among the members of the skull valley band itself. chairman leon bear, a supporter of the project, asserts that two thirds of the tribe’s members voted for the facility,109 but margene bullcreek, a chief opponent of the project and one of the few residents of the reservation,110 claims that a majority of members living on the reservation actually opposed the project.111 bullcreek founded a group called ohngo guadadeh devia that ran protests against the waste facility112 and even intervened in the nrc’s licensing proceeding.113 bullcreek opposed the project because of the potential harm it posed to the reservation and asserted that the money from pfs would not be shared equally among tribe members.114 she said that she had never been permitted to see the lease terms115 and viewed the tribe’s leadership as “unyielding and corrupt.”116 in 2005, when npr’s morning edition interviewed her and chairman bear, she was not on speaking terms with him.117 in the interview, she asserted, “i don’t think it’s worth selling our mother earth. i don’t think it’s worth giving up the battles that was [sic] fought by our forefathers to hold onto at least one bit of land.”118 minority tribe members participated in the campaign to prevent the facility from being built, but their efforts were secondary to the firestorm of political activity outside the reservation that sought to make final approval of the lease impossible before completion of the eis.119 state leaders openly pressured the bia to disapprove the lease120 and succeeded in convincing congress to designate as a protected area the cedar mountain wilderness area, preventing construction of a required right-ofway.121 when the bia finally reviewed the eis, it issued a record of decision (rod) disapproving the lease.122 the rod based its decision on the bia’s trust duty to the tribe,123 the lack of a requirement that the bia approve the lease,124 the inadequacy of the eis,125 the 25 u.s.c. § 415(a) factors,126 the 107 id. 108 skull valley rod, supra note 68, at 5. the bia later determined, in its rod, that the superintendent’s conditional approval was ultra vires and did not constitute final approval. see id. at 11–15. 109 davies, supra note 25, at 334 (citing telephone interview by lincoln l. davies with leon bear, chairman, skull valley band of goshute indians (aug. 11, 2008)). since actual vote counts appears unavailable, it is necessary to rely on conflicting accounts of the vote. 110 see david kestenbaum, morning edition: a tribe split by nuclear waste, nat’l pub. radio (oct. 21, 2005), http://www.npr.org/templates/story/story.php?storyid=4967885. 111 see lewis, supra note 95, at 326. 112 patty henetz, goshute group to hold weekend nuke protest, salt lake trib., oct. 9, 2004, http://www.sltrib. com/utah/ci_2425338. 113 state seeks standing in nrc review of nuclear waste storage proposal, las vegas sun, sept. 13, 1997, http://www.lasvegassun.com/news/1997/sep/13/state-seeks-standing-in-nrc-review-of-nuclear-wast. 114 see kestenbaum, supra note 110. 115 id. 116 davies, supra note 25, at 335 (citing margene bullcreek, guest lecture at s.j. quinney college of law, university of utah (nov. 12, 2008)). 117 kestenbaum, supra note 110. 118 id. 119 see davies, supra note 25, at 338–43. 120 see id. 121 national defense authorization act for fiscal year 2006, pub. l. no. 109-163, § 384, 119 stat. 3136 (2006). 122 skull valley rod, supra note 68, at 1. 123 id. at 17. 124 id. at 18. 125 id. at 20–22. 126 id. at 22–25 (specifically, the rod considers the relationship of the leased lands to neighboring lands and the availability of police protection.). 2014 columbia journal of race and law 269 bia’s poor understanding of nuclear issues and resulting inability to monitor the lease,127 and the possibility that nuclear waste might remain on the reservation permanently in light of the uncertainty over construction of the yucca mountain repository.128 the skull valley band responded to the rod by suing the bia in u.s. district court for the district of utah. in skull valley band of goshute indians v. davis, the court held that the bia’s disapproval was arbitrary and capricious.129 nevertheless, there does not appear to have been any further progress on the project, and the bia has not issued another rod. a brief glance at pfs’s website in april 2013 revealed that it had not been updated since 2004, and the website appears to no longer function as of 2014,130 two signs that the consortium has abandoned its efforts.131 although the minority tribe members appear to have received their desired result, their secondary role in the debate is troubling because their lack of an ability to define their own destiny leaves them dependent on the activities of others. as the next part demonstrates, the legal system would similarly leave them without any alternative recourse. for this reason, it is imperative that congress act to afford them greater consideration in the siting process. iv. the lack of legal remedies for minority tribe members this part discusses the uphill legal battle that minority tribe members will face if they challenge the bia’s approval of the lease for a nuclear waste facility or seek damages from the bia for an accident at the site. these claims will be highly fact dependent, but some generalizations can be made. in order to challenge the lease approval, members can bring suit under the apa for violations of the iltla and nepa. if successful, this suit would only force the bia to revise its justification for approval of the lease or to consider more of the project’s adverse impacts. although the delay that results from such suits has contributed to the downfall of projects in the past,132 minority tribe members have only a slim possibility of success. moreover, federal rule of civil procedure 19 may bar most minority tribe members from raising their claims under the iltla. second, if an accident occurs after the facility is built, members could sue the bia for damages under the indian tucker act for breach of its fiduciary duty, but are unlikely to succeed unless they own the land on which the facility is built. nevertheless, before the minority tribe members sue the bia in federal court, they will have to exhaust their administrative remedies. 127 id. at 25–26. 128 skull valley rod, supra note 68, at 26–29. 129 728 f. supp. 2d 1287, 1295 (d. utah 2010). see also infra part iv.b.2. 130 private fuel storage, private fuel storage llc, http://www.privatefuelstorage.com (last visited apr. 20, 2014). 131 although pfs may no longer be seeking to build a nuclear waste facility, one anti-nuclear advocacy organization believes that the skull valley band will be the “most likely target” of a voluntary siting program under the brc’s proposal. see kevin kamps, beyond nuclear response to publication of report by doe's blue ribbon commission on america's nuclear future, beyond nuclear (jan. 26, 2012), available at http://www.beyondnuclear.org/radioactivewaste-whatsnew/2012/1/26/beyond-nuclear-response-to-publication-of-report-by-does-blu.html. 132 for example, the delay produced by similar litigation may have given minority members of the passamaquoddy tribe enough time to convince their leadership to back out of a lease for a liquefied natural gas terminal on tribal lands. see nkihtaqmikon v. e. reg’l dir., 56 i.b.i.a. 127, 128 (2013) (noting that the “the tribe’s request for bia to cancel the lease was, effectively, a revocation of the tribe’s consent, thus rendering moot any decision by bia to approve the lease”); nkihtaqmikon v. impson, 585 f.3d 495, 496–98 (1st cir. 2009) (providing factual background on the case). tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 270 a. minority tribe members would first have to exhaust their administrative remedies the highest adjudicatory body for native american affairs within the doi is the interior board of indian appeals (ibia).133 the ibia accords significant deference to the decisions of bia staff.134 in reviewing the approval of leases, the ibia does no more than “ensure that proper consideration was given to all legal prerequisites to the exercise of discretion.”135 in light of the iltla’s merely procedural requirements and the significant deference given to staff decisions, it will be difficult for minority tribe members to succeed in defeating the facility in an administrative proceeding. the main purpose of appealing to the ibia will be to attain a right to judicial review and to further delay construction of the facility.136 no facility may be built without bia approval of a lease, and that approval is “not final during the appeal period and during the pendency of an appeal, unless otherwise provided by law.”137 regarding the effect of an appeal to the ibia, the experience of the skull valley band provides an instructive precedent. after the tribe received conditional approval of the storage facility’s lease,138 members of the tribe’s council appealed to the ibia in order to challenge that approval.139 the board held that individual tribe members do not have standing to claim that the tribe did not properly approve a lease140 or that the bia’s delay in complying with nepa violated its trust duties to the tribe.141 the ibia explicitly rejected the argument that members of the tribe’s council had special standing to assert these interests.142 rather than challenge the conditional approval of the lease on behalf of the tribe, the board suggested that tribe members would have to wait for a final approval in order to challenge the lease “to protect their interests, as individuals, from alleged adverse health, economic, or environmental effects that would result from the proposed storage facility.”143 b. a successful action for injunctive relief would only delay construction of the facility once the minority tribe members exhaust their administrative remedies, they will be able to challenge the bia’s lease approval in federal court under the apa.144 under the apa, a court may “hold 133 ibia decisions may be found on the home page of the u.s. department of interior website. see http://www.doi.gov (last visited apr. 20, 2014). 134 rathkamp v. billings area dir., 21 i.b.i.a. 144, 148 (1992) (“[t]he awarding of a lease of trust or restricted property is generally a discretionary decision.”) 135 id. 136 although “bia regulations require an appeal to the interior board of indian appeals before lease approval is ‘final,’ and therefore subject to judicial review under the apa,” exhaustion is not a prerequisite to review of a lease approval under the iltla. nulankeyutmonen nkihtaqmikon v. impson, 503 f.3d 18, 33 (1st cir. 2007). nevertheless, exhaustion is a generally applicable requirement subject to certain exceptions. see id. 137 nkihtaqmikon v. e. reg’l dir., no. ibia 09-07-a, at 4 (oct. 4, 2012) (order requesting supplemental briefing), available at http://www.savepassamaquoddybay.org/documents/bia/ibia_09-07-a_10-138_2012oct4.pdf. 138 see supra part iii.b. 139 see abby bullcreek v. w. reg’l dir., 40 i.b.i.a. 196 (2005). 140 the doi has a “responsibility to refrain from interfering in intra-tribal disputes.” swab v. sacramento area dir., 25 i.b.i.a. 205, 208 (1994). 141 abby bullcreek, 40 i.b.i.a. at 200. 142 id. at 201. 143 id. 144 since the ibia defers to the decisions of bia staff, the primary purpose of seeking an administrative remedy appears to be to attain a right to judicial review in federal court. the apa provides a right of review to 2014 columbia journal of race and law 271 unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”145 accordingly, they must identify provisions of law that the bia could have violated by approving the lease. their two claims will likely originate from nepa, which requires environmental reviews, and the iltla, which requires bia approval of leases.146 minority tribe members could use both of these claims to delay the commencement of construction. 1. nepa claims nepa requires federal agencies to consider the effects on the human environment resulting from their major actions,147 but places no substantive obligations on agencies beyond complying with its procedural mandate.148 nepa applies to many ordinary uses of native american land because of the federal hook created by the lease approval.149 plaintiffs frequently use nepa suits to delay projects for a significant period of time while they mobilize opposition outside the courts.150 plaintiffs argue that the relevant federal agency did not prepare the requisite environmental review or that the review was inadequate. courts will sometimes require an agency to prepare an eis in a case where the agency has decided one is not necessary or to compile a more complete eis when it is deficient. although there have been several notable victories for plaintiffs pursuing this strategy,151 ultimately it is the political opposition, not the litigation, which is outcome determinative. moreover, nepa is ultimately inadequate because of the limit that courts place on the consideration of socio-economic factors.152 2. iltla claims the iltla requires the bia to ensure that “adequate consideration” has been given to several factors before it approves any lease of native american lands.153 courts apply the statute in a similar “person[s] . . . adversely affected or aggrieved by agency action within the meaning of a relevant statute . . . .” 5 u.s.c. § 702 (2012). minority tribe members fall within the zone of interests protected by the iltla. see nulankeyutmonen nkihtaqmikon v. impson, 503 f.3d 18, 30 (1st cir. 2007). 145 5 u.s.c. § 706(2)(a) (2012). 146 congress could create a lease approval procedure that would provide no role for these statutes, but existing law would require agency review under nepa and the iltla. although a complete analysis of these claims must wait until the bia is presented with an actual lease, some issues can be confronted in the abstract. 147 42 u.s.c. § 4332(2)(c) (2012). 148 strycker’s bay neighborhood council, inc. v. karlen, 444 u.s. 223, 227 (1980). although nepa cannot be used to compel agencies to decide a certain way, it has encouraged public participation in agency decisions and has prevented agencies from pursuing some projects that would have had drastic consequences for the human and natural environment if those consequences had not been appropriately studied. see robert dreher, nepa under siege: the political assault on the national environmental policy act, geo. envtl. l. & pol’y inst. 10 (2005), available at http://www.arcticgas.gov/sites/default/files/documents/2005-nepaundersiege.pdf. 149 see davis v. morton, 469 f.2d 593, 597 (10th cir. 1972) (“we conclude approving leases on federal lands constitutes major federal action and thus must be approved according to nepa mandates.”). 150 see council on envtl. quality, the nepa task force report to the council on environmental quality: modernizing nepa implementation 71 (2003), available at http://ceq.hss.doe.gov/ ntf/report/finalreport.pdf; see also michael gerrard, environmental impact assessment: adequacy of analysis, environmental law, address at columbia law school (nov. 15, 2012). 151 see, e.g., n.b. dennis, can nepa prevent “ecological trainwrecks”?, in environmental policy and nepa: past present, and future 151 (ray clark & larry canter eds., 1997) (discussing the successful defeat of the westway project in manhattan). 152 see, e.g., metro. edison co. v. people against nuclear energy, 460 u.s. 766, 775–79 (1983) (finding that the nrc had no obligation to consider the risk of psychological health damage); image of greater san antonio v. brown, 570 f.2d 517, 522 (5th cir. 1978) (holding that socio-economic impacts are not sufficient to trigger an eis). 153 see 25 u.s.c. § 415(a) (2012); see supra part iii.a. tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 272 fashion as they do nepa. if the agency’s rod inadequately considers the factors in the statute and regulations, then a court will require the agency to submit a superiorly reasoned decision. for minority tribe members, courts’ current interpretation of the iltla as a statute designed to allow tribes unfettered discretion is especially burdensome. the district of utah’s decision to invalidate the bia’s disapproval of the skull valley band’s lease with pfs in skull valley band of goshute indians v. davis154 serves as an example. in reaching its decision, the court in skull valley band emphasized that the regulations implementing the iltla made the bia’s disapproval untenable, but its qualms were primarily related to the careless manner in which the agency wrote its rod, not to the outcome.155 at the time of the litigation, 25 c.f.r. § 162.107(a) stated that the bia will “defer, to the maximum extent possible, to the indian landowners' determination that the lease is in their best interest.”156 the court concluded that the bia did not adequately consider the regulation because it failed to explain why “it was rejecting the band's determination that its lease with pfs was in its best interest.”157 because the rod failed to even mention the regulation,158 the court declined to enumerate the specific measures that the bia should have taken in order to comply with it.159 further, the court noted that the bia failed to even respond to the tribe’s offers to address the bia’s concerns and to provide the bia with more information.160 rather, the bia concluded that it lacked “sufficient information about the 25 u.s.c. § 415(a) factors” needed to decide whether approval was warranted.161 given the court’s focus on the rod’s procedural inadequacies, it might uphold a new rod that thoroughly explained its reasoning and carefully considered the tribe’s submissions. significantly, however, the court’s decision in skull valley band also contains language that appears to render bia disapproval of a lease prohibitively difficult. “[n]ot[ing] that [bia regulations] clearly do[] not mandate that the agency simply acquiesce to the indian landowner's wishes,”162 the court quoted language from brown v. united states, an opinion of the u.s. court of federal claims, in emphasizing that the iltla was created: [t]o encourage and enable indian landowners to handle their own affairs without assistance from the federal government. it is consistent with this basic objective that the duties of the government be interpreted minimally, ensuring that indians receive the full responsibility of managing their own affairs.163 the court in skull valley band did not have an opportunity to expand upon the federal government’s “minimal[]” duties, but it would be hard to identify a lease that might warrant the bia’s rejection given the court’s tacit approval of a nuclear waste facility. as is explored further in part v, such a reading of the iltla would be a mischaracterization of brown v. united states and would effectively nullify the executive’s trust responsibility. 154 728 f. supp. 2d 1287 (d. utah 2010). 155 see id. at 1299; see also motor vehicle mfrs. ass’n, inc. v. state farm mut. auto. ins. co., 463 u.s. 29, 43 (1983) (“the scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.”). 156 the same language is now codified at 25 c.f.r. § 162.441(b) (2014). 157 728 f. supp. 2d at 1300 (emphasis in original). 158 see skull valley rod, supra note 68. 159 728 f. supp. 2d at 1301. 160 id. at 1300–01. 161 id. at 1301. 162 id. (emphasis in original). 163 id. (quoting brown v. united states, 42 fed. cl. 538, 553 (1998), aff’d, 195 f.3d 1334 (fed. cir. (1999)). 2014 columbia journal of race and law 273 even if minority tribe members’ iltla and nepa claims against the bia’s lease approval were to succeed on the merits, however, the bia would still be able to revisit its decision and issue a new approval. moreover, as the next section discusses, federal rule of civil procedure 19 may bar most minority tribe members from bringing suit under the apa for violation of the iltla. c. frcp 19 may bar most minority tribe members from asserting iltla claims because the tribe has sovereign immunity and is likely a required party rule 19 specifies certain parties that are “required” to be joined in a suit and gives courts discretion to determine whether an action may proceed when joinder is not feasible.164 when litigation implicates an interest of the tribe, the tribe may be such a required party.165 this poses a problem for minority tribe members because of the tribe’s sovereign immunity.166 minority tribe members may be able to overcome this hurdle on an adequate representation theory or by arguing that joinder of the tribe would be inequitable, but few courts have been receptive to such arguments. a party must be joined if he is “subject to service of process,” his joinder “will not deprive the court of subject-matter jurisdiction,” he “claims an interest relating to the subject of the action,” and he “is so situated that disposing of the action in the person's absence may . . . as a practical matter impair or impede the person's ability to protect the interest” or “leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.”167 the prejudicial effect is minimized if the “absent party is adequately represented in the suit.”168 adequate representation turns on “whether ‘the interests of a present party to the suit are such that it will undoubtedly make all’ of the absent party's arguments; whether the party is ‘capable of and willing to make such arguments’; and whether the absent party would ‘offer any necessary element to the proceedings’ that the present parties would neglect.”169 164 see fed r. civ. p. 19(a–b). 165 importantly, however, the tribe is not a required party in a nepa suit. see manygoats v. kleppe, 558 f.2d 556, 559 (10th cir. 1977); diné citizens against ruining our env’t v. u.s. office of surface mining reclamation and enforcement, no. 12–cv–1275–ap, 2013 wl 68701, at *6 (d. colo. jan. 4, 2013). nor is the tribe likely to be a required party in a suit for damages under the indian tucker act for breach of the federal government’s fiduciary duties under the iltla, unless the litigation implicates a substantial tribal interest. compare brown v. united states, 42 fed. cl. 538, 563–66 (1998) (holding that the tribe was not a required party in a suit against the bia for breach of its fiduciary duty to manage an ordinary lease under the iltla), with klamath tribe claims comm. v. united states, 97 fed. cl. 203, 210–14 (2011) (holding that the tribe was a required party in a suit to safeguard treaty-based water rights that belonged to the tribe). for a discussion of claims under the indian tucker act, see infra part iv.d. 166 tribal sovereign immunity is a judge-made rule that is not constitutionally-compelled, and authorities differ over which judicial precedent provides its underpinning. compare clay smith, tribal sovereign immunity: a primer, the advocate, may 2007, at 19 (arguing that tribal sovereign immunity was created in turner v. united states, 248 u.s. 354 (1919)), with andrea m. seiestad, the recognition and evolution of tribal sovereign immunity under federal law: legal, historical, and normative reflections on a fundamental aspect of american indian sovereignty, 37 tulsa l. rev. 661, 689–94 (2002) (arguing that various pre-turner cases demonstrate that the supreme court was implicitly applying a doctrine of tribal sovereign immunity). congress accordingly has the authority to authorize suits against the tribes. turner, 248 u.s. at 358. although the doctrine will probably remain in force for the moment, future plaintiffs may not need to wrestle with it in the future. in a recent opinion, the supreme court voiced significant concern over a strong tribal sovereign immunity doctrine. see kiowa tribe of oklahoma v. mfg. techs., inc., 523 u.s. 751, 758 (1998) (discussing “considerations [that] might suggest a need to abrogate tribal immunity, at least as an overarching rule”). 167 fed r. civ. p. 19(a). 168 makah indian tribe v. verity, 910 f.2d 555, 558 (9th cir. 1990). 169 shermoen v. united states, 982 f.2d 1312, 1318 (9th cir. 1992) (citing fresno county v. andrus, 622 f.2d 436, 439 (9th cir. 1980)). tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 274 when a party is required but joinder is “not feasible,” rule 19(b) outlines four non-exhaustive discretionary factors that a court may use to determine whether “in equity and good conscience” the action should proceed:170 “the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;” “the extent to which any prejudice could be lessened or avoided by . . . protective provisions in the judgment . . . shaping the relief[] or . . . other measures;” “whether a judgment rendered in the person's absence would be adequate;” and “whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.”171 tewa tesuque v. morton presents a paradigmatic case of how minority tribe members might fail procedurally under rule 19.172 in tewa tesuque, members of an “unincorporated member association” of the pueblo of tesuque sued the bia seeking cancellation of a bia-approved, ninety-nine year lease signed by the tribe and a development company. the development company wanted to construct a community of 17,000 non-indians on the reservation lands.173 the court held that the district court did not err in deeming the pueblo of tesuque an “indispensable” party,174 which prior to the 2007 amendment to rule 19 was the equivalent of “required party” under the current version.175 in rejecting reliance on the discretionary factors in 19(b), the court emphasized the tribe’s economic loss from the cancellation of the lease, the court’s inability to lessen the burden on the tribe, the likelihood that a cancellation of the lease would cause additional lawsuits, and the plaintiffs’ alternate remedy in a tribal forum.176 accordingly, the court affirmed the district court’s dismissal of the suit because neither the tribe, nor congress on its behalf, had consented to joinder.177 nevertheless, there are two ways in which minority tribe members could overcome the rule 19 hurdle: either by demonstrating that the tribe is not a required party because it is adequately represented in the suit or by arguing that despite being a required party, the tribe’s joinder would be inequitable under the factors in 19(b). the ninth circuit appears receptive to the argument that the federal government can adequately represent the tribe’s interests. in washington v. daley, a group of non-indian fisherman challenged a national marine fisheries service (nmfs) regulation recognizing certain tribal fishing rights that had been established by treaty.178 the ninth circuit agreed with the district court’s ruling that the tribes were required parties under 19(a)(1)(b)179 because of their interest in fishing, but held that the government adequately represented the tribes’ interests. there was “no conflict of interest between the federal defendants and the tribes”180 because the nmfs had the same interests as the tribe and had a “trust responsibility” to them.181 in reaching its decision, the ninth circuit distinguished the case from a prior holding in makah indian tribe v. verity that dealt with a conflict over ocean harvest quotas assigned to 170 fed r. civ. p. 19(b). 171 fed r. civ. p. 19(b)(1–4). 172 tewa tesuque v. morton, 498 f.2d 240, 240 (10th cir. 1974). 173 id. at 242. 174 fed. r. civ. p. 19 (1987) (amended 2007). 175 498 f.2d 240, 242 (10th cir. 1974). 176 id. at 242–43. 177 id. at 242. 178 washington v. daley, 173 f.3d 1158, 1161 (9th cir. 1999). 179 the court actually refers to 19(a)(2), which is currently codified at 19(a)(1)(b). 180 173 f.3d at 1167. 181 id. at 1168. 2014 columbia journal of race and law 275 various tribes.182 since the nmfs regulation’s scope was confined to acknowledging the tribes’ fishing rights and did not seek to allocate fish among the tribes, there could be no conflict.183 district courts in the tenth circuit, on the other hand, have rejected such adequate representation arguments. in center for biological diversity v. pizarchik, a judge in the district of colorado disagreed with various environmental non-profits that challenged the doi’s grant of a permit to operate a coalmine on a navajo reservation, holding that the government did not adequately represent the tribe’s interests because of the tribe’s “unique role in relation to its members and to the management of its own lands.”184 the court emphasized that the doi would not be economically harmed by the loss of the coalmine, as would the tribe.185 whether minority tribe members will succeed under an adequate representation theory might ultimately depend on the circuit in which the litigation occurs. of the sixteen phase i applicants under the nwn’s program that were tribes, ten were in the tenth circuit, four were in the ninth circuit, and two were in the eighth circuit.186 if similar tribes seek to host a nuclear waste facility under the brc proposal, most will be unable to sue on an adequate representation theory. success on the theory that the tribe’s joinder would be inequitable, on the other hand, appears exceedingly difficult. there do not appear to be any cases where minority tribe members have convinced a court not to join the tribe even though the tribe is a required party. for example, in tewa tesuque, the court held that the tribe would be prejudiced due to its economic interest in the litigation; that lessening the prejudice would be impossible; that the tribe’s non-participation in the suit would invite further litigation; and that the minority tribe members had an adequate remedy in a tribal forum.187 although a court could always accept new arguments about adequate representation or the discretionary factors in 19(b), especially if plaintiffs can demonstrate that their case would create an unusually inequitable result, minority tribe members will be unlikely to surmount the hurdle posed by rule 19 and tribal sovereign immunity in any court. the ninth circuit presents the only glimmer of hope for such plaintiffs, but they will still be hard-pressed to succeed on the merits of their iltla claim, and no action under the apa would permanently defeat the project. given minority tribe members’ inability to prevent construction of the facility, the following section explores the uphill battle they would face if they were to sue the bia for damages. d. minority tribe members are unlikely to prevail in an action for damages under the ilta because the iltla probably fails to establish an enforceable fiduciary duty on the bia that runs to them the apa may provide an avenue for minority tribe members to temporarily enjoin the bia’s approval of the facility’s lease, but it cannot provide for monetary damages to their reservation.188 the 182 makah indian tribe v. verity, 910 f.2d 555, 556 (9th cir. 1990). 183 173 f.3d at 1168. 184 858 f. supp. 2d 1221, 1227 (2012). 185 id. 186 see mrs grant applicant list, supra note 16, at 1–3; see also geographic boundaries of united states courts of appeals and united states district courts, u.s. courts, http://www.uscourts.gov/uscourts/images/circuitmap.pdf (last visited mar. 5, 2014). 187 tewa tesuque v. morton, 498 f.2d 240, 242–43 (10th cir. 1974). 188 see 5 u.s.c. § 702 (2012) (“an action in a court of the united states seeking relief other than money damages . . . shall not be dismissed nor relief therein be denied on the ground that it is against the united states or that the united states is an indispensable party.” (emphasis added)). tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 276 indian tucker act, on the other hand, waives federal sovereign immunity189 and gives the u.s. court of federal claims “jurisdiction of any claim against the united states . . . in favor of any tribe, band, or other identifiable group of american indians . . . whenever such claim is one arising under the constitution, laws or treaties of the united states, or executive orders of the president . . . .”190 nevertheless, the indian tucker act “does not create any substantive right enforceable against the united states . . . .”191 therefore, minority tribe members must identify a source of “substantive law” that the u.s. has violated and “demonstrate that . . . [the] law . . . can fairly be interpreted as mandating compensation by the federal government for the damages sustained.”192 since the iltla provides for the federal government’s authority over native american lands, minority tribes would have to prove that they are entitled to damages for the bia’s breach of the duty imposed by the iltla.193 they would only succeed in demonstrating their entitlement if the iltla established a fiduciary duty on the bia that ran to them. accordingly, although landowners could successfully recover damages from the bia for property damage caused by the facility, opponents of the project would be unlikely to prevail because the “bia does not manage their interests in a fiduciary capacity.”194 therefore, minority tribe members are unlikely to be directly compensated for damages to their reservation.195 the supreme court explored the indian tucker act’s application to the federal government’s managerial responsibilities over native american lands in two opinions arising from the same factual circumstances. in united states v. mitchell (mitchell i), native american plaintiffs sought to recover damages from the federal government for “mismanagement of timber resources found on the reservation.”196 the court of claims had found that the bia’s statutory mandate to “‘hold the land . . . in trust for the sole use and benefit of the’ allottee” created a fiduciary duty on the united states to properly manage native timber resources.197 the plaintiffs could recover “money damages . . . for breaches of this trust, apparently because that remedy is available in the ordinary situation in which a trustee has violated a fiduciary duty and because without money damages allottees would have no effective redress for breaches of trust.”198 declining to consider whether damages resulting from the government’s breach of its trust responsibility were cognizable under the indian tucker act, the supreme court held that the statute at issue “created only a limited trust relationship between the united states and the allottee that does not impose any duty upon the government to manage timber resources.”199 significantly, however, the court of claims had not ruled on the arguments that “other statutes . . . render the united states liable in money damages” or that “the alleged mismanagement is 189 united states v. mitchell (mitchell ii), 463 u.s. 206, 216 (1983) (“if a claim falls within the terms of the tucker act, the united states has presumptively consented to suit.”). 190 28 u.s.c. § 1505 (2012). 191 united states v. testan, 424 u.s. 392, 398 (1976) (referring to the tucker act, 28 u.s.c. § 1491 (2012), a statute that is interpreted similarly); see also united states v. mitchell (mitchell i), 445 u.s. 535, 540 (1980) (“28 u.s.c. § 1505 no more confers a substantive right against the united states to recover money damages than does 28 u.s.c. § 1491.”). 192 mitchell ii, 463 u.s. at 216 (quotation marks and citations omitted). 193 see id. the iltla provides the current leasing framework, but congress could create a special leasing program for nuclear waste facilities to replace it. 194 nulankeyutmonen nkihtaqmikon v. impson, 503 f.3d 18, 31 (2007). 195 on the other hand, the indian tucker act might provide a means through which the landowner or the tribe could recover for damages caused by the bia’s negligent management of the lease. 196 mitchell i, 445 u.s. at 537. 197 id. at 541 (quoting 25 u.s.c. § 348 (2012)). 198 id. at 541–42. 199 id. at 542. 2014 columbia journal of race and law 277 cognizable under the tucker act because it involves money improperly exacted or retained.” 200 accordingly, the supreme court declined to consider these claims.201 on remand, the court of claims found cognizable claims under “timber management statutes, various federal statutes governing road building and rights of way, statutes governing indian funds and government fees, and regulations promulgated under these statutes imposed fiduciary duties” the breach of which “implicitly required compensation for damages sustained.”202 the supreme court affirmed, holding that: [w]here the federal government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection.203 it was sufficient for the court that “[t]he department of the interior . . . exercise[d] literally daily supervision over the harvesting and management of tribal timber” and that “[v]irtually every stage of the process [was] under federal control.”204 while the supreme court has never decided whether the iltla and its implementing regulations impose an enforceable fiduciary duty on the federal government, the federal circuit found such a duty in brown v. united states. 205 in brown, members of an indian community, who had improvidently leased land to a corporation, claimed that the bia had breached its fiduciary duty by “failing . . . to compel the lessees to fulfill their reporting and payment responsibilities” and “to cancel the lease in a timely manner once . . . lease violations were uncovered.”206 even though the bia might not exercise sufficient “supervision” over indian leases,207 the court found that the iltla “impose[s] an enforceable fiduciary duty on the government under the ‘control’ portion of mitchell ii 's [disjunctive] ‘control or supervision’ test” because native americans “do not control the leasing of their lands.”208 the court emphasized that the bia must approve a lease for it to be valid, must dictate lease terms, has final authority to terminate a lease, and can terminate a lease without the lessor’s consent.209 moreover, native americans have no ability to transfer possession or ownership of their lands without engaging in the proper procedures with the bia.210 finally, the court stressed that several implementing regulations give the bia the responsibility to protect native americans’ financial interests in their lands, a common characteristic of a private fiduciary relationship.211 200 id. at 546 n.7 (internal citation omitted). the supreme court also declined to consider plaintiffs’ arguments that the “special relationship between the united states and indian tribes establishes a right to money damages for timber mismanagement” and that the statute at issue “create[s] trust responsibilities on the part of the united states that constitute implied contracts within the scope of the tucker act” because these were only raised on appeal. see id. 201 id. 202 united states v. mitchell (mitchell ii), 463 u.s. 206, 211 (1983) (internal citations omitted). 203 id. at 225 (alterations in original) (emphasis added) (citations and quotation marks omitted). this language is known as the “‘control or supervision’ test.” brown v. united states, 86 f.3d 1554, 1561 (fed. cir. 1996). 204 mitchell ii, 463 u.s. at 222 (internal citations, quotation marks, and footnotes omitted). 205 brown, 86 f.3d at 1561. 206 id. 207 id. (finding that “the secretary lacks ongoing management responsibility over the day-to-day administration of commercial leases concerning allotted lands”). 208 id. (emphasis added). 209 id. at 1561–62. 210 id. at 1562. 211 brown, 86 f.3d at 1562–63. tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 278 nevertheless, the supreme court’s decision in united states v. navajo nation212 casts doubt on the holding in brown. in navajo nation, the court declined to find a duty imposed by a statute permitting the lease of indian lands for mining purposes “with the approval of the secretary of the interior”213 because the statute “simply requires secretarial approval before coal mining leases negotiated between tribes and third parties become effective . . . and authorizes the secretary generally to promulgate regulations governing mining operations.” 214 importantly, however, the statute at issue in navajo nation was significantly shorter than the iltla, and the court held inapplicable various additional provisions imposing more substantial duties on the secretary.215 the iltla’s additional requirements might differentiate it from the statute in navajo nation.216 even if the supreme court were to find an enforceable fiduciary duty on the bia, however, the duty probably would not run to non-landowning minority tribe members. although the court in brown did not focus on this issue, the plaintiffs in that case challenged the bia’s management of their own lands.217 in nulankeyutmonen nkihtaqmikon v. impson, the first circuit found this fact decisive in a challenge by a group of minority tribe members to their tribe’s approval of a liquified natural gas terminal on land with “historical, cultural, religious, and recreational significance.”218 noting that they were “not land owners and the bia [did] not manage their interests in a fiduciary capacity,”219 the court dismissed their claim based on the executive’s trust responsibility. minority tribe members opposing the siting of a nuclear waste facility could argue that they are more like the claimants in brown, but courts will most likely dismiss their claims because they are not beneficiaries of the trust.220 landowning native americans and the tribe itself may succeed in receiving compensation under the indian tucker act. however, minority tribe members appear unable to prevent construction of the facility under the apa and also appear to lack a remedy for damages. given minority tribe members’ inadequate legal remedies, this note proposes several recommendations for pending nuclear waste legislation in part v. v. recommendations for nuclear waste legislation while the brc’s proposed voluntary siting mechanism alleviates some of the concerns about the federal government’s heavy-handedness with regard to the yucca mountain site,221 it poses fairness concerns of its own. when a nuclear waste facility is located in the center of a small municipality, a local government may afford an opportunity for prospective neighbors to be the primary decision-makers in 212 537 u.s. 488 (2003). 213 id. at 493 (quoting 25 u.s.c. § 396a (2012)). 214 id. at 507 (internal citation omitted). 215 id. at 509–13. 216 decided on the same day as navajo nation, white mountain apache nation v. united states, 537 u.s. 465 (2003), might also help differentiate minority tribe members’ claims. in white mountain, a tribe sued the united states for breach of its fiduciary duty to maintain a tribe-owned property that the u.s. had occupied since 1870. id. at 468–69. the court found a fiduciary duty, emphasizing that “the united states has not merely exercised daily supervision but has enjoyed daily occupation, and so has obtained control at least as plenary as its authority over the timber in mitchell ii.” id. at 474. similarly, the united states would presumably manage and occupy the nuclear waste facility under a lease agreement with the tribe. 217 brown v. united states, 86 f.3d 1554, 1556 (fed. cir. 1996). 218 503 f.3d 18, 23–25 (2007). 219 id. at 31. 220 see united states v. mitchell (mitchell ii), 463 u.s. 206, 224 (1983) (noting that plaintiffs must demonstrate the existence of each element of a common law trust, including “a trustee,” “a beneficiary,” and “a trust corpus . . .” (footnote omitted)). 221 see supra note 46. 2014 columbia journal of race and law 279 the siting process. a tribe, on the other hand, often has a substantial constituency with equal voting rights that lives outside of the reservation. this may lead to non-reservation inhabitants voting to approve a facility over the opposition of those who inhabit the area surrounding the proposed site.222 additionally, even tribe members who do not reside on the reservation may have a spiritual connection to the land that gives them a special interest in preserving it. therefore, congress should use its impending nuclear waste legislation to ensure adequate consideration of the interests of minority tribe members and lessen their burden in the event that a facility is constructed on their reservation.223 in order to achieve these aims, congress should clarify the necessity of preparing an eis before finalizing site selection, oppose the co-location of a repository and temporary storage facility, require progress toward the development of a repository before searching for a temporary facility, and establish a mechanism for tribe members to submit their comments on the project. first, congress should ensure that the environmental impacts of the site are adequately studied through the preparation of an eis before a tribe accepts the facility. s. 1240, senator wyden’s bill, does not expressly require an eis at any point in the process, instead demanding an environmental assessment (ea) when determining whether repository sites are suitable for “characterization,” a detailed study of the site.224 by failing to specify the timing of an eis in the statute, congress would afford too much discretion to the nuclear waste administration to decide whether or not to prepare one. since the supreme court has been very deferential to agencies in nepa cases, a challenge to the agency’s nepa regulations would be unlikely to succeed.225 second, although both the brc report and senator wyden’s bill in the 113th congress express a preference for the co-location of repositories and storage facilities on the same site,226 congress should refrain from allowing co-location. while it might be both politically astute to have to identify only one site and environmentally sound to confine the impacts of nuclear waste to as small a geographic area as possible, this provision places a double burden on communities that are willing to host the storage facility. particularly if congress expresses a preference with regard to co-location, agencies might be tempted to pressure tribes into accepting both facilities. the legislative intent behind the nuclear waste 222 according to margene bullcreek, monetary compensation from the site was not shared equitably among the tribe’s members, and support for the project was not equal among residents and non-residents of the reservation. see supra part iii.b. 223 although there are no examples of a court ever enforcing it against the legislative branch, congress also has a trust responsibility to the native americans. william c. canby, american indian law in a nutshell 36 (2009). congress’s power over the tribes is plenary and rooted in the indian commerce clause, u.s. const. art. i, § 8, cl. 3, and the treaty clause, id. art. ii, § 2, cl. 2. see united states v. lara, 541 u.s. 193, 200–01 (2004). there are only three minor limitations on congress’s power to abrogate tribal rights: 1) the trust responsibility requires congress’s actions to be “consistent with good faith towards the indians,” lone wolf v. hitchcock, 187 u.s. 553, 566 (1903); 2) congress’s actions must be in accordance with constitutional provisions, babbitt v. youpee, 519 u.s. 234 (1997) (takings clause); and 3) ambiguous statutory language will be interpreted according to the indian law canons of construction, which are deferential toward tribal interests, but if the statute is explicit, then the canons are inapplicable. see felix s. cohen, cohen’s handbook of federal indian law § 2.02 (neil jessup newton ed., 2012). 224 s. 1240, 113th cong. § 306(b)(4) (2013). the bill’s sole use of the term eis appears in the section where it provides for judicial review. id. § 404(a)(1)(d). 225 see generally richard j. lazarus, the power of persuasion before and within the supreme court: reflections on nepa’s zero for seventeen record at the high court, 2012 u. ill. l. rev. 231 (2012). 226 blue ribbon commission report, supra note 8, at vii; see also s. 1240, 113th cong. §§ 305(b)(2)(b), 306(c)(2) (2013). tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 280 policy act of 1987 was to develop two repositories on either coast in order to equitably balance the burden.227 congress should not depart from that policy. third, congress should require that substantial progress be taken toward the construction of a permanent repository before work is commenced on a temporary storage facility in order to prevent tribes or other jurisdictions from unwittingly entering a permanent contract with the nuclear waste administration. the bia has expressed concerns that a storage facility could become a de facto repository given the current political climate,228 and the existing statute contains provisions to ensure some progress on a repository.229 although senator wyden’s bill likewise aims to ensure construction of a repository,230 it offers much weaker protections on repository construction than a previous version of the bill that was introduced in the 112th congress.231 thus, congress should amend the current bill to reflect its 2012 predecessor. fourth, congress should clarify that the iltla applies to the lease of the facility and provide the bia with a mechanism for complying with its trust responsibility under the statute. although the bia acknowledges its trust duties, it appears uncertain how to exercise these duties under the iltla. in its announcement of the recent revision to the iltla regulations governing non-agricultural leases, the bia argued that it does retain some discretion to disapprove leases in certain cases. in response to one comment, the bia asserted that it could not “provide that leases are always in the best interest of the indian landowners because bia is required to determine whether this is true.”232 on the other hand, the bia failed to identify any constraints on its exercise of discretion. another commenter asked the bia to “[a]dd examples of what a ‘compelling reason’ to disapprove may be.”233 the bia responded that it “could not identify an example,” but that the standard was necessary in case a “unique situation” arose that “would clearly warrant disapproval.”234 at another point in the notice, the bia suggested that “the best interest determination includes factors beyond monetary compensation and that it will vary according to circumstances,”235 but could not reach a greater level of specificity. as the bia’s skull valley rod demonstrates,236 the lease for a nuclear waste facility could be a “unique situation” that “would clearly warrant disapproval.” in order to ensure that the bia correctly identifies such a unique situation warranting disapproval, congress should instruct the bia to incorporate minority tribe members into the decisionmaking process by providing a mechanism through which they can submit written comments for the bia’s consideration.237 these comments might cause the bia to more deeply contemplate various 227 stewart, supra note 37, at 10785. 228 see skull valley rod, supra note 68, at 19. 229 see 42 u.s.c. § 10165(b) (2012). 230 see s. 1240, 113th cong. § 305(c) (2013). 231 to consider the nuclear waste administration act of 2013: hearing on s. 1240 before the s. comm. on energy & nat. res., 113th cong. 5–9 (2013) (statement of geoffrey h. fettus, senior attorney, natural resources defense council, inc.). 232 residential, business, and wind and solar resource leases on indian land, 77 fed. reg. 72,440, 72,460 (dec. 5, 2012) (emphasis added). 233 id. 234 id. 235 id. 236 see skull valley rod, supra note 68, at 18–19 (discussing the basis for disapproval). 237 one such process is contained in the outer continental shelf lands act’s provision for the consideration of governors’ recommendations. see 43 u.s.c. § 1345 (2012). the provision imposes no duty on the secretary to accept the recommendations. id at § 1345(c) (2012). rather, “[t]he secretary shall communicate to the governor, in writing, the reasons for his determination to accept or reject such governor's recommendations, or to implement any alternative 2014 columbia journal of race and law 281 issues, such as the facility’s impact on the “long-term viability of the . . . reservation as a homeland for the [tribe].”238 margene bullcreek was particularly worried about the consequences of damage to hardfought reservation land, which provided a link to previous generations;239 and scholars have noted that the reservation is the only tool that allows tribes to maintain their independence from the rest of american society.240 moreover, the addition of minority tribe members’ concerns about their reservation may increase the likelihood of the bia’s lease denial being upheld on review.241 the bia would benefit from an organized process for receiving and responding to such input. although the siting process will inevitably leave some community members displeased with the results, congress’s adequate consideration of minority interests will help ensure that many of the minority’s concerns are addressed. further, congress’s modifications to the procedures for siting storage facilities and repositories will minimize the burden on members of the minority once the facility is built. vi. conclusion in many of the countries that have chosen to pursue nuclear power, the issue of where to dispose of spent fuel waste has generated an enormous amount of controversy.242 particularly spirited opposition has come from individuals who would have to live near the waste.243 in the 1980s, the united states sought to confront such resistance by mandating the construction of a repository at yucca mountain without allowing local communities to have a voice in the siting decision.244 the recent brc report proposes a voluntary siting method whereby communities would be able to vote and decide whether to host a facility.245 native americans are likely to be the primary participants in a voluntary siting process because of the apparent willingness of many to accept nuclear waste facilities on their reservations and the political difficulties that many municipalities would face if they pursued such facilities.246 minority tribe members are especially affected by nuclear waste facilities because they may live closer to the facilities than the majority or have a unique spiritual connection to the land, 247 have traditionally been underrepresented in siting discussions after losing intra-tribal votes,248 and possess inadequate legal remedies.249 since the decision process for any nuclear waste facility is likely to last several years, these minority tribe members deserve to play a greater role in site analysis; and no site should be pursued without their substantial input. therefore, congress should address some of these impacts in its impending nuclear waste legislation by clarifying the necessity to prepare an eis before finalizing site selection, opposing the co means identified in consultation with the governor to provide for a reasonable balance between the national interest and the well-being of the citizens of the affected state.” id. 238 see skull valley rod, supra note 68, at 18. 239 see supra part iii.b. 240 see, e.g., collins & hall, supra note 26, at 315. 241 see skull valley band of goshute indians v. davis, 728 f. supp. 2d 1287, 1300–01 (d. utah 2010) (rebuking the bia for its lack of deference to native americans’ determination of their interests). 242 see generally charles de saillan, disposal of spent nuclear fuel in the united states and europe: a persistent environmental problem, 34 harv. envtl. l. rev. 461, 485–507 (2010). 243 id. 244 see supra part ii.b. 245 see id. 246 see supra part ii.b–c, iii.b. 247 see supra part iii.b. 248 see supra part iii.b. 249 see supra part iv. tribe-sanctioned nuclear waste facilities and their involuntary neighbors vol. 4:2 282 location of a repository and temporary storage facility, requiring progress toward the development of a repository before triggering the search for a temporary facility, and establishing a mechanism for tribe members to submit their comments on the project. although congress walks a thin line between ensuring fairness and unjustly infringing on local control and tribal sovereignty, it must take certain measures so that tribal minorities are not marginalized in the siting process. by minimizing adverse impacts and incorporating diverse views, congress may even succeed in easing the prolonged controversy surrounding nuclear waste facilities. microsoft word delise final.docx 2016 columbia journal of race and law 115 religious exemptions to neutral laws of general applicability and the theory of disparate impact discrimination james m. delise* this article argues that the theory undergirding religious exemptions to neutral laws of general applicability represents a viable theoretical and legal justification for race-based disparate-impact policies such as title vii. though not always expressly stated as such, one can best understand the theory underpinning the exemptions approach to religious free exercise as a paradigm of disparate impact discrimination. similar to disparateimpact discrimination in the context of race and employment policy, the statutory level serves as the domain of execution for religious-based models of disparate impact. just as washington v. davis relegated remedies for race-based disparate impact in employment to the statutory level, the court’s ruling in employment division v. smith served the same function in the context of religion. however, in sharp contrast to title vii and the paradigm of race-based disparate impact in the context of employment, the supreme court has not evinced hostility toward disparate-impact legislation in the context of religious free exercise; it has not found a tension between the positive right to be judged as an individual and the tendency of congress and other legislative bodies to engage in explicitly religious-conscious decision-making. constitutionally speaking, there is no tenable method of differentiating between race-conscious and religious-conscious decision-making. because there is no legitimate method of constitutional differentiation here, and because the court has not interpreted the legal-theoretical model of religious exemptions as offending the equal protection clause, this article posits that the theory undergirding religious exemptions to neutral laws of general applicability represents a viable theoretical and legal justification for race-based disparate-impact policies such as title vii. i. introduction .............................................................................................. 116 ii. the history of religious exemptions in the united states ......... 119 a. the u.s. supreme court and religious exemptions: sherbert and its progeny .................................................................. 122 b. the u.s. supreme court and religious exemptions: employment division v. smith and the end of the sherbert test for free exercise cases .................................................................................. 124 c. the aftermath of smith: the religious freedom restoration act of 1993 .................................................................................................... 125 iii. the theory of religious exemptions to “neutral” laws of general applicability, title vii disparate impact standards, and the equal protection clause ............................................................... 127 a. the theory of religious exemptions as a paradigm of disparate impact discrimination ...................................................................... 130 116 religious exemptions to neutral laws of general applicability vol. 6:2 b. religion, race and the equal protection clause: attempting to understand the court’s differential treatment of race-conscious and religious-conscious public policies ......................................... 135 iv. conclusion ................................................................................................. 138 i. introduction in griggs v. duke power co.,1 the supreme court interpreted title vii of the civil rights act of 1964 as banning not only overt, purposeful employment discrimination, but also “practices that are fair in form, but discriminatory in operation.”2 in other words, the griggs court construed title vii as proscribing overt racial discrimination in employment, as well as employment practices that did not overtly discriminate on the basis of race but had the effect of excluding non-whites or other protected groups from employment.3 the griggs court was careful to note that title vii’s ban on discriminatory effects did not authorize “preference for any group, minority or majority.”4 instead of supporting preferential treatment and racial quotas, the griggs court interpreted the ban on discriminatory effects as eliminating only those racially exclusionary employment practices that were not related to “job performance.”5 in short, employers could avoid liability under title vii if the employment practices in question were related to “job performance” or “business necessity”—even if those policies had the effect of disproportionately excluding non-whites or other protected groups.6 the ruling in griggs was limited to statutory interpretation of title vii. as such, it did not answer the broader constitutional question of whether facially neutral state actions devoid of discriminatory intent violate the equal protection clause if they have racially discriminatory effects (adverse racial impact).7 the court answered this question in washington v. davis,8 ruling that an equal protection violation does not occur absent a showing of purposeful or intentional racial discrimination on the part of a state actor.9 while the effects of a particular policy may be useful in sniffing out illicit racial motives, adverse racial impact by itself does not constitute an equal protection violation.10 to elevate the statutory rule of griggs to the level of constitutional law would, in the davis court’s view, be “far reaching” and possibly lead to the invalidation of “a whole range of tax, welfare, public service, regulatory, and licensing statutes.”11 however, the davis court did not express a constitutional concern with a statutory rule proscribing disproportionate racial impact in employment— * assistant professor of instruction, temple university intellectual heritage program. i would like to thank heath fogg-davis, jane a. gordon, joseph m. schwartz, and rogers m. smith for their helpful comments on the initial draft of this article. 1 401 u.s. 424 (1971). 2 id. at 431. 3 id. at 431. 4 id. at 431. the civil rights act of 1964 classifies as an unlawful employment practice discrimination “against any individual…because of such individual’s race, color, religion, sex, or national origin.” 42 u.s.c. § 2000e(a)(1) (2015). 5 401 u.s. at 431. 6 id. 7 washington v. davis, 426 u.s. 229, 238–239 (1976). after noting that the “court of appeals erroneously applied the legal standards applicable to title vii cases in resolving the constitutional issue before it,” the davis court went on to note that “our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” id. at 239 (emphasis in original). 8 id. at 229. 9 id. at 247–48. 10 id. at 242. “disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the u.s. constitution. standing alone, it does not trigger the rule, that racial classifications are to be subjected to the strictest scrutiny and are justified only by the weightiest of considerations.” id. (citing mclaughlin v. florida, 379 u.s. 184 (1964)). 11 id. at 248. 2016 columbia journal of race and law 117 essentially affirming in its dicta the griggs court’s interpretation of title vii—and indicated that future expansions of such a rule would have to come from the legislative process.12 a series of cases before and after davis affirmed the griggs court’s interpretation of title vii and the disparate impact standard of employment discrimination,13 and in 1991 congress amended the civil rights act of 1964 to clarify employers’ disparate impact liability under title vii, expressly codifying a disparate impact standard of discrimination under title vii.14 although the civil rights act of 1991 may have provided statutory clarification for disparate impact liability under title vii, it did not offer any guidance for answering the larger constitutional question that would lay dormant for roughly 18 years and eventually surface in the 2009 case of ricci v. destefano.15 in ricci, the court for the first time raised the question of whether disparate impact statutes such as title vii, with their use of racial criteria for evaluating decisions and allocating employment opportunities, violate the equal protection clause of the united states constitution. there was a time when a question like this would have been hard to fathom. as richard primus notes, “once upon a time, the burning issue about equal protection and disparate impact was whether the fourteenth amendment itself embodied a disparate impact standard.”16 however, since the time of davis, the court has grown increasingly intolerant of race-conscious decision making, even for the purpose of redressing prior invidious discrimination.17 given this trend, perhaps one should not be surprised that the court raised this question in ricci. but the ricci court only raised the question; it did not offer resolution.18 because the ricci court limited its decision to the statutory question of reconciling the disparate treatment and disparate impact prongs of title vii, it is not yet clear whether disparate impact violates the equal protection clause.19 as justice scalia noted in his concurrence, the ricci decision “merely postpones the evil day which the court will have to confront the question: whether, and to what extent, are the disparate impact provisions of title vii of the civil rights act of 1964 consistent with the constitution’s guarantee of equal protection?”20 even though the ricci court did not rule on the constitutionality of disparate impact, the fact that it perceived a potential conflict and intimated that there may be a constitutional issue with disparate impact and equal protection by itself “represents a complete turnabout in antidiscrimination law.”21 interestingly enough, in a different legal domain—religious free exercise—a similar turnabout had come to pass almost thirty years prior. with the case of employment division v. smith,22 the supreme court jettisoned the compelling interest test it had used for roughly thirty years to examine the constitutionality of laws and policies that incidentally burdened religious exercise.23 for several decades prior to smith, the court abided by the principle that 12 id. at 248. it is reasonable, then, to view the davis court’s opinion as affirming the statutory interpretation of griggs. 13 lawrence rosenthal, saving disparate impact, 34 cardozo l. rev. 2158 (2013). 14 civil rights act of 1991, pub. l. no. 102-166, 105 stat. 1074. 15 ricci v. destefano, 557 u.s. 557 (2009). 16 richard primus, the future of disparate impact, 108 mich. l. rev. 1344 (2010). 17 see richard primus, equal protection and disparate impact: round three, 117 harv. l. rev. 496 (2003). 18 kenneth l. marcus, the war between disparate impact and equal protection, 2009 cato sup. ct. rev. 54, 55 (2009). 19 ricci, 557 u.s. at 584. 20 id. at 594 (scalia j., concurring). the majority opinion in ricci did not portray the tension between disparate impact and equal protection as starkly as justice scalia. writing for the majority, justice kennedy noted: “our statutory holding does not address the constitutionality of the measures taken here in purported compliance with title vii. we also do not hold that meeting the strong-basis-in-evidence standard would satisfy the equal protection clause in a future case.” id. at 584. 21 primus, supra note 16. 22 494 u.s. 872 (1990). 23 see generally, michael w. mcconnell, accommodation of religion: an update and a response to the critics, 60 geo. wash. l. rev. 685 (1992) (describing the changes in the supreme court’s doctrinal framework for analyzing cases involving accommodation of religion); see also michael mcconnell, free exercise revisionism and the smith decision, 57 u. chi. l. rev. 1109, 1110 (1990). although religious exemptions were the official court doctrine, mcconnell notes that 118 religious exemptions to neutral laws of general applicability vol. 6:2 individuals had a constitutional right to be exempted from generally applicable, neutral laws that incidentally burdened their religious exercise.24 under this principle, states could overcome a free exercise challenge only by showing that the law in question was narrowly tailored (the least restrictive means) and represented a compelling state interest.25 prior to smith, then, the court conceived of a constitutional right to religious exemptions, and the judiciary had a role to play in carving out religious exemptions when the state failed to satisfy certain requirements. after smith, however, decisions regarding exemptions to neutral laws burdening religious exercise were left exclusively to the democratic process.26 the smith court argued that this process might put unpopular religious practices at a disadvantage, but this relative disadvantage was preferable “to a system in which each conscience is a law unto itself or in which judges weight the social importance of all laws against the centrality of religious beliefs.” 27 although the smith ruling limited constitutional free exercise protections, it engendered a host of statutory remedies designed to restore the compelling interest test that had governed free exercise jurisprudence for the nearly thirty years prior to smith.28 for example, in the wake of smith congress passed the religious freedom restoration act (rfra),29 and since smith, twenty-one states have adopted laws designed to mimic the federal religious freedom restoration act (state rfras).30 beyond its determination that the federal rfra applied only to actions of the federal government,31 the supreme court has not found statutory religious exemptions to be constitutionally problematic—even though these laws require state actors to engage in religious-conscious decision making, much like disparate impact laws require state and private actors to engage in race-conscious decision making. this article posits that a nexus exists between the disparate impact theory of racial discrimination and the legislative and judicial practice of carving out exemptions for religious persons whose ideals conflict with socalled neutral laws of general applicability. with few exceptions, the literature on equal protection and discrimination, as well the scholarly literature covering religious free exercise, overlooks this connection.32 though not always expressly stated as such, one can best understand the theory underpinning the exemptions approach to religious free exercise as a paradigm of disparate impact discrimination. similar to disparate impact discrimination in the context of race and employment policy, the statutory level serves as the domain of execution for religious-based models of disparate impact. just as washington v. davis33 relegated remedies for race-based disparate impact in employment to the statutory level, the court’s ruling in employment division v. smith,34 served the same function in the context of religious free exercise, as the court determined that there was no constitutional right to religious exemptions—thus ensuring that congress and state legislatures would determine the ultimate fate of religious exemptions to generally applicable, neutral laws. this right “was more talk than substance” because the court infrequently rendered decisions in favor of religious claimants. id. at 1109–10. 24 this principle emanated from the watershed cases of sherbert v. verner, 374 u.s. 398 (1963), and wisconsin v. yoder, 406 u.s. 205 (1972). 25 see mcconnell, supra note 23, at 1110. 26 emp’t div. v. smith, 494 u.s. 872, 890 (1990). 27 id. 28 christopher c. lund, religious liberty after gonzalez: a look at state rfras, 55 s.d. l. rev. 466 (2010). 29 see religious freedom restoration act (rfra) of 1993, 42 u.s.c. § 2000bb (2006). 30 state religious freedom restoration acts, nat’l conference of state legislatures, http://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx (nov. 15, 2015); see also lund, supra note 28. 31 see city of boerne v. flores, 521 u.s. 507, 535 (1997). 32 the author is aware of one exception to this trend in the literature. bernadette meyler argues that there is a “distinctive similarity between the structure of free exercise and equal protection claims.” bernadette meyler, the equal protection of free exercise: two approaches and their history, 47 b.c. l. rev. 275, 285 (2006). 33 426 u.s. 229, 240–242 (1976). 34 494 u.s. 872 (1990). 2016 columbia journal of race and law 119 in sharp contrast to title vii and the paradigm of race-based disparate impact in the context of employment, the supreme court has not evinced hostility toward disparate impact legislation in the context of religious free exercise; it has not found a tension between the positive right to be judged as an individual and the tendency of congress and other legislative bodies to engage in explicitly religious-conscious decisionmaking.35 there is, constitutionally speaking, no tenable method of differentiating between race-conscious and religious-conscious decision making such that one form of group-based evaluation should be greeted with incredulity and disapprobation while the other should not even command a modicum of scrutiny. because there is no constitutional method of differentiation here, and because the court has not interpreted the legal-theoretical model of religious exemptions as offending the equal protection clause, i conclude that the theory undergirding religious exemptions to neutral laws of general applicability represents a viable theoretical and legal justification for race-based disparate impact policies such as title vii. this justificatory approach has the advantage of employing principles emanating from the conservative wing of the court—i.e., those moving public policy in the direction of color blindness—to defend a policy of which these jurists have become increasingly skeptical.36 moreover, it bolsters the defense of title vii in the face of its impending showdown with the equal protection clause. for “the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.”37 this article is an effort at making such peace. ii. the history of religious exemptions in the united states during the winter of 1812-1813, daniel phillips, a parishioner at st. peter’s—the only catholic church in new york city at the time—participated in the catholic sacrament of reconciliation. pursuant to church doctrine, phillips orally confessed his sins and agreed to perform the prescribed penance. according to roman catholic ethos, phillips had to engage in these acts—oral confession and penance—before he could take part in the catholic sacrament of holy communion.38 during his confession, phillips acknowledged that he had, with full cognizance, received stolen property.39 since it was, and remains, a longstanding, sacrosanct practice of the catholic church to keep the content of one’s confession between him/her and god, phillips had good reason to believe that the details of his confession would remain confidential and not be divulged to any outside authorities.40 after learning of phillips’ illicit act, father anthony kohlmann, the priest hearing phillips’ confession, encouraged him to return the stolen property to its lawful owner. phillips, presumably operating under the shroud of confidentiality, gave the stolen items to father kohlmann, who ensured the safe return of the illegally obtained items to their owner, james keating. keating, upon receipt of the property, reported the theft to the appropriate legal authorities. subsequently, the new york court of general sessions subpoenaed father kohlmann to testify under oath and reveal the germane details of phillips’ confession.41 35 the supreme court’s decision in ricci v. destefano called into question the constitutionality of race based disparate impact statutes and severely circumscribed the range of cases in which employers could apply the disparate impact requirements of title vii. 557 u.s. 557, 558 (2009). the court’s decision in ricci followed from its embrace of an individualized interpretation of equal protection—an interpretation supported by several affirmative-action rulings. see wygant v. jackson, 476 u.s. 267 (1986); city of richmond v. j.a. croson co., 488 u.s. 469, 493 (1989); adarand constructors v. pena, 515 u.s. 200 (1995). in these cases, the court interpreted equal protection as guaranteeing a positive right to be judged as an individual, without reference to “morally arbitrary” group attributes. see primus supra note 17. as noted in the sections below, the supreme court has not viewed religious exemptions and the group classifications on which they are based as violating this positive right to be judged as an individual. 36 see ricci, 557 u.s. at 558. 37 id. at 595–96 (scalia, j., concurring). 38 michael w. mcconnell, the origins and historical understanding of free exercise of religion, 103 harv. l. rev. 1409, 1410 (1990). 39 id. at 1410. 40 id. at 1410–11. 41 id. at 1411. 120 religious exemptions to neutral laws of general applicability vol. 6:2 father kohlmann, under questioning from the district attorney, refused to provide the details of phillips’ confession and so began the first recorded free exercise case in united states history, people v. phillips (1813).42 in phillips, the central question under examination was whether a government entity could enjoin a priest to divulge information obtained during the sacrament of reconciliation (during confession), as forcing a priest to reveal such information would unequivocally violate the priest’s conscience, the principles of his church, and the requirements of his position. furthermore, father kohlmann’s contravention of the church tenets under examination would have most assuredly resulted in his dismissal from the priesthood and, possibly, his excommunication from the church. father kohlmann had to decide between observing his religious scruples—his identity as a catholic—and serving jail time for refusing to testify. fortunately, for father kohlmann’s sake, the honorable de witt clinton, then mayor of new york city, delivered a unanimous opinion that carved out an exemption to the generally applicable rule under consideration. that rule under consideration was “that every man when legally called upon to testify as a witness, must relate all he knows.”43 after noting several exceptions to this general rule of testifying under oath (e.g., spouses cannot be compelled to testify against one another), de witt then moved to consider the applicability of the new york state constitution’s free exercise provision to the specific case at hand. the state’s free exercise provision called for the allowance of the “free exercise and enjoyment of religious profession and worship” in a nondiscriminatory manner, except under circumstances where the allowance of such “profession and worship” ran counter to the “peace or safety” of the state or resulted in the sanctioning of licentious acts.44 according to de witt, the excusal of father kohlmann from the rule/obligation of general applicability at issue here—the general law that a person must “relate all that he (or she) knows” when compelled to testify in a court of law—did not constitute a breach of the state’s free exercise proviso. in other words, exempting a catholic priest from the general rule of veraciously bearing witness in a court of law, at least in this circumstance, did not result in state sanctioned “licentiousness” or in the compromised “peace or safety” of its citizens.45 the overarching conflict presented in phillips—a conflict between seemingly neutral laws/rules of general applicability and the beliefs and/or practices of a particular religious sect, or of particular religious persons— is a conflict that has deep roots in american history, dating back to the colonial and pre-constitutional periods. in fact, several colonies had free exercise provisions that circumscribed religious exercise only in circumstances where the actions of adherents jeopardized public safety (“outward disturbance of others”) or entailed licentious behavior.46 as michael mcconnell notes in his seminal work on the history of free exercise, although not explicitly endorsing the idea of exemptions, these expansive provisions were nonetheless compatible with the notion of religious-based dispensation from laws. they provided requisite space for exemptions to laws of general applicability insofar as the religious practice in question did not run counter to the prevention of licentiousness or the protection of public safety.47 moreover, the second charter of carolina (revised in 1665) went even further and expressly authorized the use of religious exemptions. the charter acknowledged that private actions and beliefs would not always comport with the church of england, and it gave authorities the ability to grant “indulgences” and “dispensations” as they saw “fit and reasonable.”48 in post-revolutionary, but pre-constitutional, america, free exercise provisions of state constitutions exhibited three common features that were also consistent with the practice of granting religious exemptions. 42 people v. philips, n.y. ct. gen. sess. (1813), cited in michael w. mcconnell, john h. garvey & thomas c. berg, religion and the constitution 103–08 (2nd ed. 2006). 43 id. at 105. 44 id. at 107. 45 id. at 107–09. 46 mcconnell, supra note 38, at 1426–27. 47 id. at 1427–28. 48 id. at 1428. 2016 columbia journal of race and law 121 first, state constitutions did not limit the free exercise of religion to conscience or belief; free exercise in preconstitutional america subsumed religious beliefs and the actions following from such dictates of conscience.49 second, early state constitutions circumscribed free exercise only when it came into conflict with specific state purposes.50 these free exercise limitations, most of which related to ensuring public safety and rectitude, could only have had relevance in situations where the actions of religious adherents came into conflict with general laws. in other words, the limitations would be meaningless unless one understood them as creating space for religious exemptions to general laws up until a certain point.51 finally, the actual manner in which states dealt with the conflict between one’s religious scruples and neutral laws of general applicability during this period supports the exemptions approach to religious accommodation. conflict between general laws and religious conviction commonly arose in three areas: military conscription, oath requirements, and religious assessments.52 when conflict arose in these areas, “the colonies and states wrote special exemptions into their laws.”53 the free exercise provisions in early state constitutions, as well as the actual practice of exemptions surrounding oaths, military conscription, and religious assessments, while not providing direct evidence that the free exercise clause of the u.s. constitution mandates religious-based exemptions to neutral laws of general applicability, show that the idea of exemptions was not foreign to the framers of the first amendment. although the framers of the first amendment did not expressly address exemptions in their debates over free exercise, there is no substantial proof that they considered such exemptions inconsistent with the constitution.54 mcconnell points to this indirect evidence, along with writings of james madison, to argue that the exemptions approach to free exercise is more consistent with the framer’s original intent than the no-exemptions approach.55 at the same time, however, he acknowledges that this evidence is merely suggestive and not probative.56 although other scholars have called mcconnell’s original-intent thesis into question, generally their critiques have disputed his finding that religious exemptions are constitutionally mandated, not his evidence of statutory religious exemptions in the colonial and pre-constitutional periods.57 at the very least, then, mcconnell provides a cogent defense of the idea that traditional interpretations of religious free exercise incorporated the notion of exemptions to generally applicable laws.58 to what extent 49 id. at 1458–59. 50 id. at 1461. 51 id. at 1462. 52 id. at 1466. quakers and other religious groups refused to take oaths, which were the primary method employed to guarantee veracious testimony in a court of law. as mcconnell notes, “a regime requiring oaths prior to court testimony effectively precluded these groups from using the court system to protect themselves.” id. at 1467. as a result, almost all states had oath exemptions on the books by 1789. id. at 1468. military conscription: many religious groups objected to military service, and states such as rhode island, north carolina, maryland, and new hampshire granted religious exemptions to military service. id. at 1468. religious assessments: these exemptions applied only in states with established churches. in those states, it was common to require citizens to remit support payments to the established church or their own church. it also was common, however, for states to exempt from this requirement members of religious denominations that objected to compulsory tithing. id. at 1469. 53 id. at 1472. 54 id. at 1511. 55 id. at 1512. the no-exemptions approach states that laws are consistent with free exercise to the extent that they are facially neutral toward religion. mcconnell, supra note 38, at 1452–55. but see vincent phillip munoz, james madison’s principle of religious liberty, 97 am. pol. sci. rev. 17 (2003) (concluding that constitutional applications of madison’s thoughts of religious liberty fail to grasp his position). 56 id. at 1512. 57 see, e.g., ellis west, the case against a right to religion-based exemptions, 4 notre dame j. l. ethics & pub. pol’y 591 (1990) (contending that religious exemptions are not constitutionally mandated); william p. marshall, in defense of smith and free exercise revisionism, 58 u. chi. l. rev. 308 (1991); philip hamburger, a constitutional right of religious exemption: an historic perspective, 60 geo. wash. l. rev. 915 (1992); vincent phillip munoz, the original meaning of the free exercise clause: evidence from the first congress, 31 harv. j. l. & pub. pol’y 1083 (2008). 58 martha c. nussbaum, liberty of conscience: in defense of america’s tradition of religious equality 124-125 (2008). 122 religious exemptions to neutral laws of general applicability vol. 6:2 these historical interpretations translate into a right to exemptions readily derivable from the free exercise clause of the u.s. constitution is, however, far from certain.59 a. the u.s. supreme court and religious exemptions: sherbert and its progeny until the case of sherbert v. verner,60 the u.s. supreme court did not interpret the free exercise clause of the first amendment as granting a constitutional right of exemption from neutral laws of general applicability. prior to sherbert, the high court ruled that anti-polygamy statutes did not violate the first amendment rights of mormons,61 that child labor laws forbade a minor from distributing religious materials with her aunt,62 that a public university’s punitive action against students who refused to participate in rotc on religious grounds was legitimate,63 and that sunday closing laws did not infringe upon the free exercise rights of orthodox jews. 64 although the supreme court had not established a constitutional right of exemption prior to sherbert, it had ruled that the free exercise clause proscribed intentional discrimination against particular individuals or groups because of their religious beliefs, 65 and that it prohibited the regulation66 and compulsion of religious beliefs.67 at issue in sherbert was whether the state of south carolina could deny unemployment benefits to a member of the seventh-day adventist church because of his or her unwillingness to work on saturdays in observance of the sabbath. 68 the south carolina unemployment compensation act conditioned unemployment benefits upon one’s willingness “to accept ‘suitable work when offered him by employment office or the employer.’” 69 the employment security commission found that sherbert’s inability to work on saturdays made her ineligible for benefits under the terms of the statute; in other words, she was unwilling “to accept ‘suitable work.’” 70 in sherbert, the court reaffirmed its long-standing precedent that laws intentionally discriminating against certain individuals or groups because of their religious beliefs, or statutes regulating or compelling religious belief, were repugnant to the free exercise clause.71 at the same time, however, the court noted that in prior cases, it had not interpreted the free exercise clause as protecting against government regulations that incidentally burdened or inhibited actions impelled by religious belief or conscience.72 in other words, the court had yet to extend free exercise protections to religiously motivated actions under circumstances where state regulations incidentally burdened religious free exercise, but did not discriminate against—or endeavored to compel or regulate—religious belief. although it had not yet granted free exercise protections in such cases, the court had examined cases where neutral laws of general applicability burdened religious free exercise; however, the laws at issue in all of these cases fell within the ambit of the state’s legitimate regulatory powers. specifically, the court had not found regulations of religiously motivated activity constitutionally problematic in these cases because they all entailed “conduct or action” that “posed some substantial threat to public safety.”73 however, the conduct at issue in sherbert—a refusal to work on saturdays in observance of the sabbath—hardly constituted behavior 59 id. at 125. 60 374 u.s. 398 (1963). 61 reynolds v. united states, 98 u.s. 145, 165 (1879). 62 prince v. massachusetts, 321 u.s. 158, 166 (1944). 63 hamilton v. regents of the univ. of cal., 293 u.s. 245, 261 (1934). 64 braunfeld, 366 u.s. at 605. see generally mcconnell, supra note 38, at 1412 (discussing the cases outlined above and an overview of the supreme court’s free exercise jurisprudence prior to sherbert). 65 fowler v. rhode island, 345 u.s. 67, 69 (1953). 66 cantwell v. connecticut, 310 u.s. 296, 305 (1940). 67 torasco v. watkins, 367 u.s. 488, 496 (1961). 68 sherbert v. verner, 374 u.s. at 400–01. 69 id. 70 id. at 401. 71 id. at 402. 72 id. at 402–03. 73 id. at 403. 2016 columbia journal of race and law 123 creating a “substantial threat to public safety.”74 thus, the court differentiated sherbert from this prior line of cases. what is more, it reasoned that the unyielding application of eligibility requirements and the concomitant denial of benefits to the appellant in sherbert could pass constitutional muster only under certain conditions. mainly, they could pass constitutional muster if they did not burden the free exercise of religion or the state had a “compelling interest” for implementing such regulations in a uniform fashion.75 the court unequivocally viewed the denial of unemployment compensation as burdensome to the free exercise of religion. 76 having established that the eligibility requirements of south carolina’s statute represented a “substantial infringement of the appellant’s first amendment right,” 77 (i.e., they are burdensome) the court found no compelling state interest in the enforcement of the eligibility requirements in this case.78 that is to say, it found no “compelling interest” in the uniform application of the statute’s requirements sufficient to justify impingement of the appellant’s first amendment rights. as such, the court held that south carolina’s denial of unemployment benefits in circumstances where a person’s religious beliefs make him/her unavailable for work unconstitutionally infringes upon his/her free exercise rights— forcing him/her to jettison “his religious convictions respecting the day of rest.”79 as justice harlan noted in his dissent, the court’s holding means that the state “is constitutionally compelled to carve out an exception—and to provide benefits—for those whose unavailability is due to their religious convictions.”80 following sherbert, the court continued to apply the compelling-interest test to “carve out” free exercise exemptions in the context of unemployment compensation. in thomas v. review board, 81 and hobbie v. unemployment appeals commission,82 the court ruled that, when religious convictions require behavior that leads to, or is the basis for, the refusal or denial of a benefit, it violates the free exercise clause unless there is a compelling government interest for such a denial.83 what is more, thomas went even further, establishing that states encroaching upon religious liberty in pursuit of a compelling interest must also choose the “least restrictive means” of pursuing their objective. 84 these cases thus affirmed the standard of review propounded in sherbert; and employing that standard, the court was not able to find a compelling interest to justify the infringement of first amendment rights in either of these cases. the court extended its 74 id. 75 id. the sherbert court did not use the term “uniform” to describe the application of eligibility requirements contained in south carolina’s unemployment law. however, the court contrasted its ruling in sherbert with that of braunfeld v. brown, 366 u.s. 599 (1961), asserting that the major difference between the two cases was that, in braunfeld, the state had a compelling interest that could not be achieved if it granted exemptions to the uniform-day-of-rest requirement. sherbert, 374 u.s. at 408. “requiring exemptions for sabbatarians, while theoretically possible, appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable.” id. at 408–09. in sharp contrast to braunfeld, the state of south carolina did not present evidence that such religious-based exemptions would undermine its legitimate interest. id. at 407–09. therefore, what differentiates the two cases is a compelling interest in uniformity that justifies the infringement of rights in braunfeld but not sherbert. the question here is not whether the state has a compelling interest in providing for a uniform day of rest (braunfeld) or ensuring that persons receiving employment benefits are willing to “accept available suitable work” (sherbert). the court does not question the legitimacy of either of these state interests in regulating behavior (as evidenced by the fact that the court did not invalidate either law). rather, the question is, in pursuit of a legitimate interest (i.e., one that falls within the ambit of the state’s regulatory powers), does the state have a compelling interest in uniformity—that is, in disallowing exemptions—when the regulation infringes upon the constitutional right of free exercise. 76 id. at 403–06. 77 id. at 406. 78 id. at 406–09. 79 sherbert, 374 u.s. at 410. 80 id. at 420 (harlan, j., dissenting). 81 thomas v. review bd., 450 u.s. 707 (1981). 82 hobbie v. unemployment appeals comm’n, 480 u.s. 136 (1987). 83 hobbie, 480 u.s. at 141; thomas, 450 u.s. at 717–18. 84 thomas, 450 u.s. at 718. 124 religious exemptions to neutral laws of general applicability vol. 6:2 compelling-interest analysis to the context of public education in wisconsin v. yoder.85 in yoder, the court found wisconsin’s compulsory school-attendance law, which mandated attendance until the age of 16, in violation of religious free exercise. members of the old order amish challenged the state law on grounds that attendance beyond the eighth grade undermined core tenets of the amish faith and their “way of life.”86 the high court agreed, contending that the wisconsin’s interest in mandating formal education beyond eighth grade did not meet the compelling-interest requirement; similar to sherbert above, the court found no “compelling interest” in the uniform application of the statute’s requirements sufficient to justify infringement of the free exercise of religion.87 as such, the court granted the old order amish and “others similarly situated” an exemption to the compulsory education statute.88 although the free exercise rulings cited above might lead one to conclude that sherbert ushered in a new epoch of free exercise jurisprudence, one in which the court regularly upheld religious claimants’ objections to neutral laws of general applicability, this conclusion does not reflect the bulk of post-sherbert decisions handed down prior to the landmark decision in employment division v. smith.89 following the sherbert decision, religious claimants inundated the court, seeking exemptions to neutral laws of generally applicability in accordance with the compelling-interest (strict scrutiny) test of sherbert.90 however, the court, while often adhering to the compelling-interest test in procedure, rarely produced substantive outcomes favoring religious claimants.91 michael mcconnell describes this post-sherbert trend in free exercise jurisprudence as a peculiar quality to the consensus, wherein the “free exercise doctrine was more talk than substance.”92 in cases covering a panoply of statutes and regulations, the court consistently rejected constitutional free exercise claims, usually by determining that the law or regulation in question did not sufficiently burden religion, or that the government had a compelling interest.93 for example, the court rejected free exercise challenges to the social security tax,94 to the requirement that welfare applicants be identified by their own social security number,95 to regulations prohibiting headgear in the air force,96 and to prison rules interfering with the ability of muslims to attend midday service.97 eventually, the court severely attenuated, if not jettisoned entirely, its commitment to the compelling-interest test with the case of employment division v. smith.98. b. the u.s. supreme court and religious exemptions: employment division v. smith and the end of the sherbert test for free exercise cases smith pivoted on the constitutionality of an oregon state law that proscribed peyote use without making an exception for religious-based consumption.99 oregonians alfred smith and galen black, both of whom were members of the native american church, had their employment at a drug rehabilitation center terminated because they consumed peyote during a religious ceremony of their church. smith and black subsequently applied for unemployment benefits, and the state denied their applications because “they had 85 wisconsin v. yoder, 406 u.s. 205 (1972). 86 yoder, 406 u.s., at 209. 87 id. at 235–36. 88 id. at 236. because the amish “have carried the even more difficult burden of demonstrating the adequacy of their alternate mode of education […] it was incumbent on the state to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the amish.” id. at 235–36. 89 494 u.s. 872 (1990). 90 kathleen sullivan & gerald gunther, first amendment law 539–40 (4th ed. 2010). 91 id. at 540. 92 mcconnell, supra note 23, at 1109. 93 id. at 1110. 94 united states v. lee, 455 u.s. 252, 254 (1982). 95 bowen v. roy, 476 u.s. 693, 711–12 (1986). 96 goldman v. weinberger, 475 u.s. 503, 510 (1986). 97 o’lone v. estate of shabazz, 482 u.s. 342, 342 (1987). 98 emp’t div., 494 u.s. at 876. 99 id. 2016 columbia journal of race and law 125 been discharged for work-related ‘misconduct.’”100 in smith, the question before the court was whether oregon’s blanket criminalization of peyote use and possession was acceptable under the free exercise clause of the first amendment, thus legitimating the state’s denial of unemployment compensation.101 smith and black grounded their free exercise claims in the unemployment compensation cases of sherbert v. verner, thomas v. review board, and hobbie v. unemployment appeals commission,102 all of which sanctioned the carving out of religious-based exemptions to neutral laws of general applicability (i.e., laws that did not intentionally discriminate against religion).103 these cases established the standard that, when religious convictions require behavior that leads to, or is the basis for, the refusal or denial of a benefit, it violates the free exercise clause unless there is a compelling government interest for such a denial.104 in sharp contrast to the established precedent of sherbert, thomas and hobbie, the smith court asserted that neutral laws of general applicability burdening religious practices did not have to be justified by a compelling government interest in order to pass constitutional muster.105 the court sought to differentiate smith from sherbert, thomas and hobbie based on the legality (or illegality) of the conduct under examination. smith dealt with illegal conduct whereas the unemployment compensation cases did not.106 moreover, cases outside of the unemployment context in which the court carved out religious-based exemptions implicated more than one constitutional protection: they were hybrid cases. for example, yoder entailed not only free exercise protections, but also the rights of the parents to “direct the education of their children.”107 justice scalia’s majority opinion also contended that the court did not need to analyze smith through the compelling-interest framework of sherbert because relevant precedent (e.g., sherbert, thomas and hobbie) had applied this test only to countermand rules governing unemployment decisions. “we have never invalidated any governmental action on the basis of the sherbert test except the denial of unemployment compensation.”108 the difference here, then, appears to stem from the criminal nature of peyote ingestion; at first blush, smith seems to be a case about unemployment compensation indistinguishable from the others. however, granting a judicial exemption would not only result in the distribution of unemployment benefits, but also an exemption to any criminal penalties meted out against religious offenders. finally, the court construed the unemployment compensation cases as special because they involved rules and standards amenable to individualized consideration. for example, sherbert and thomas allowed for the denial of unemployment compensation if a person had quit his/her job or would not accept available employment “without good cause.”109 the construction of these statutes created space for, and in fact necessitated, “individualized exemptions.”110 however, a similar amenability is not present when dealing with the uniform criminalization of particular actions.111 c. the aftermath of smith: the religious freedom restoration act of 1993 100 id. at 874. 101 id. at 874. 102 see emp’t div., 494 u.s. at 883 (citing sherbert v. verner, 374 u.s. 398 (1963); thomas v. review bd., 450 u.s. 707 (1981); and hobbie v. unemployment appeals comm’n, 480 u.s. 136 (1987)). 103 sherbert, 374 u.s. 398; thomas, 450 u.s. 707; hobbie, 480 u.s. 136. 104 hobbie, 480 u.s. at 141 (citing thomas, 450 u.s. at 717–18; sherbert, 374 u.s. at 403). 105 see emp’t div., 494 u.s. at 878–79 (1990) (explaining the supreme court “…never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.”). 106 see id. at 876. 107 id. at 881 (citing wisconsin v. yoder, 406 u.s. 233 (1972)). 108 emp’t div., 494 u.s. at 883. 109 id. at 884. 110 id. 111 id. at 884–85 (holding that criminal prohibitions are not subject to invalidation through individualized government assessment). 126 religious exemptions to neutral laws of general applicability vol. 6:2 while smith certainly did not champion a constitutional right to religious exemptions, the court nonetheless put its imprimatur on legislative attempts to accommodate religious practices burdened by neutral laws of general applicability. “[a] society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. it is therefore not surprising that a number of states have made an exception to their drug laws for sacramental peyote use.”112 the smith decision, having at best circumscribed the sherbert standard of review to a small subset of unemployment compensation cases, left the process of religious accommodation to legislative bodies—noting all the while that this would put minority religions at a “relative disadvantage” vis-à-vis majority religions.113 seeking to amend this shortcoming of the smith decision by restoring the compelling-interest test of sherbert and yoder, congress passed the religious freedom restoration act of 1993 (hereinafter rfra) with overwhelming bipartisan support.114 congress noted that the smith decision eviscerated the compellinginterest standard propounded in sherbert and yoder, and that the compelling-interest standard employed in these judicial decisions is the appropriate analytical tool for balancing religious freedom and government interests.115 as such, the act specified that, even when burdens placed on religion are the consequence of a generally applicable law, the relevant governing body “may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” furthermore, the act applied to all units of government within the jurisdiction of the united states. although the rfra appeared to restore some potency to the standards set forth in sherbert and yoder, this was fleeting, as soon thereafter, the court ruled in city of boerne v. flores,116 that congress had overstepped its constitutional authority when it enacted the rfra.117 congress depended upon its enforcement powers under section five of the fourteenth amendment to render the act’s regulatory framework applicable to state governments. while congress undoubtedly possessed the authority to enforce with legislation where necessary the protections contained in the fourteenth amendment (which subsumes the freedoms enshrined in the first amendment),118 the court reasoned that this power was limited to remedial action. by enacting standards of enforcement that went beyond remedial action, and by doing away “with proof of deliberate or overt discrimination” and focusing instead on the discriminatory effects of law, congress was fundamentally amending, rather than simply enforcing, the free exercise clause of the first amendment pursuant to its section five enforcement powers. 119 thus, the court concluded that congress could not apply the regulations of the rfra to the states, and its subsequent decision in gonzalez v. o centro espirita beneficente 112 id. at 890. 113 emp’t div., 494 u.s. at 890. 114 william j. clinton, remarks on signing the religious freedom restoration act of 1993, ii pub. papers 2000, 2000-01 (nov. 16, 1993); kathleen sullivan & gerald gunther, first amendment law 559 (2010). 115 the religious freedom restoration act of 1993, 42 u.s.c. §§ 2000bb-2000bb4 (2012). 116 521 u.s. 507 (1997). 117 id. at 536. 118 id. at 519 (explaining the court’s holding in cantwell v. conn., 310 u.s. 296 (1940), “‘that the ‘fundamental concept of liberty embodied in [the fourteenth amendment’s due process clause] embraces the liberties guaranteed by the first amendment.’”). 119 city of boerne, 521 u.s. at 519. as justice o’connor notes in dissent, the court’s determination of whether rfra falls within the boundaries of congress’ section 5 enforcement power hinges on one’s interpretation of the free exercise clause. the boerne court embraces smith’s interpretation of the clause, an interpretation that views the free exercise clause as a mere antidiscrimination principle that prohibits only intentional discrimination (i.e., “only against those laws that single out religious practice for unfavorable treatment”). justice o’connor does not espouse this interpretive stance. “rather, the clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law.” id. at 546 (o’connor, j., dissenting). 2016 columbia journal of race and law 127 uniao do vegetal,120 affirmed that the rfra, while unenforceable against the states, nonetheless binds the federal government:121 under rfra, the federal government may not, as a statutory matter, substantially burden a person’s exercise of religion, “even if the burden results from a rule of general applicability.” the only exception recognized by the statute requires the government to satisfy the compelling interest test—to “demonstrate the application of the burden to the person—(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling interest.”122 therefore, the compelling-interest standard of sherbert and yoder applies to the united states federal government as a matter of settled law.123 by determining that that the free exercise clause of the u.s. constitution did not imply a right to exemptions, the smith court’s decision represented a setback for those championing religious-based exemptions to generally applicable laws. however, the manner in which the sherbert and yoder standards gained applicability to the federal government—through the legislative process under the auspices of the rfra—is continuous with the long history of religious exemptions in the united states. the states and federal government have long maintained a tradition of carving out religious exemptions to “neutral” laws of general applicability. in fact, throughout us history, the majority of religious-based exemptions flowed not from judicial rulings, but rather statutorily from colonial governments, state legislatures and congress.124 thus, the court’s approbation of exemptions realized through the “democratic process” in smith only reinforced through dictum the constitutional legitimacy of a pattern of legislative and judicial exemptions extant since the colonial era,125 and the court’s abrogation of the rfra as applied to states in boerne simply meant that exemptions at the state level would have to proceed through normal political channels without federal statutory mandate. iii. the theory of religious exemptions to “neutral” laws of general applicability, title vii disparate impact standards, and the equal protection clause in the foregoing sections, i provided an overview of the u.s. supreme court free exercise jurisprudence covering religious exemptions to neutral laws of generally applicability. additionally, i offered a brief adumbration of statutory exemptions at the federal and state levels of government. omitted from these sections, however, was any discussion of the theory underlying the exemptions approach to the free exercise of religion. michael mcconnell, in his influential work on the history of the free exercise clause, furnishes a succinct explication of the theory undergirding the exemptions approach. exponents of the exemptions approach to religious free exercise posit that “powerful and influential” religious groups garner sufficient representation and protection in the political domain, whereas “unpopular or unfamiliar” religions do not receive similar indemnification; they are more vulnerable to free exercise infringements engendered by 120 546 u.s. 418 (2006). 121 gonzalez v. o centro espirita beneficente uniao do vegetal, 546 u.s. 418, 424 n.1 (2006) (citations omitted) (“as originally enacted, rfra applied to the states as well as the federal government. in city of boerne v. flores, we held the application to states to be beyond congress’ legislative authority under § 5 of the fourteenth amendment.”). 122 id. at 424. 123 see id. at 424. the rfra’s applicability to the federal government was most recently upheld in the case of burwell v. hobby lobby stores, 134 s.ct. 2751 (2014). in this case, the court extended rfra protections to for profit, closely-held corporations. 124 louis fisher, statutory exemptions for religious freedom, 44 j. church & state 291 (2002). 125 see mcconnell, supra note 38, at 1412. 128 religious exemptions to neutral laws of general applicability vol. 6:2 “neutral” laws of general applicability. 126 under the exemption theory, inequality and disadvantage are present not because of intentional or purposeful discrimination against certain religious groups and/or religious persons, but rather because of insensitivity and ignorance to the demands and needs of these groups.127 accordingly, judicially executable religious-based exemptions are necessary to guarantee that these “unpopular or unfamiliar” religions receive equal treatment and protection in the political domain. 128 religious exemptions to “neutral” laws of general applicability serve as an equalizer of sorts, ensuring that there is no hierarchy among religious groups, so that adherents of dominant or powerful religious groups and disfavored and/or unpopular groups have an equal opportunity to follow the religious dictates of their conscience. in this way, the state is neutral toward religion; it does not favor particular religions in the political process.129 overall, this is a form of religious accommodation; it eliminates barriers to free exercise on both the individual and institutional levels.130 mcconnell contrasts the exemptions approach to free exercise with the “no-exemptions view,” or the idea that the role of government, as it pertains to religious free exercise, does not extend beyond the prevention of intentional discrimination, which is understood as the singling out of particular religious practices—or the singling out of religion in general—for differential and disadvantageous treatment.131 on this interpretation, laws are consonant with free exercise protections when they do not advert to religion and have a secular purpose other than the subjugation of religion; when laws and government actions meet these criteria, they are neutral toward religion.132 here, intentional or purposeful discrimination—much as it is in the context of race—is associated with prejudice, or judgments against particular groups or classes of persons that serve “to deny persons of those classes the full enjoyment of that protection which others enjoy.”133 the liberal individualist philosophy of john locke is the fountainhead of the “no-exemptions” understanding of free exercise, and cases such as employment division v. smith,134 typify this view.135 for example, the smith decision commenced with a discussion of two hypothetical scenarios, both of which indubitably offended the free exercise clause. these scenarios entailed either the singling out of persons for differential treatment based solely on the religious nature of their actions (discrimination against religion in general), or the singling out of persons for differential treatment because of their particular religious practices (discrimination against particular religions/religious practices). “it would be true […] that a state would be ‘prohibiting the free exercise [of religion]’ if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display.”136 scalia notes that the issue in smith differs from such scenarios insofar as the prohibition of religious-inspired peyote use is not the particular object of the law under examination (this is not an instance of purposeful or intentional discrimination, as cognized above). any free exercise burden placed on religious adherents is therefore incidental to a constitutionally legitimate exercise of state power, and construing such incidental 126 id. at 1419–20. martha nussbaum echoes this sentiment with the use of slightly different terminology. employing the language of majority-minority relations, she notes that laws in democratic societies often reflect a majoritarian bias and, consequently, do not take into account the demands and needs of religious (and other) minorities. “majority thinking is usually not malevolent, but it is often obtuse, oblivious to the burdens such rules impose on religious minorities.” nussbaum, supra note 58, at 116. 127 id. 128 mcconnell, supra note 38, at 1420. 129 id. at 1419–20. 130 id.; michael w. mcconnell, accommodation of religion: an update and response to the critics, 60 geo. wash. l. rev. 685, 686 (1992). 131 mcconnell, supra note 38, at 1418. 132 id. at 1419. 133 strauder v. west virginia, 100 u.s. 303, 309 (1879). 134 494 u.s. 872 (1990). 135 mcconnell, supra note 38, at 1434–35. locke states, “for the private judgment of any person concerning a law enacted in political matters, for the public good, does not take away the obligation of that law, nor deserve a dispensation.” john locke, a letter concerning toleration 48 (liberal arts press 2nd ed. 1955). 136 emp’t div., 494 u.s. at 877. 2016 columbia journal of race and law 129 burdens as contrary to the free exercise of religion would constitute a judicial overreach: an over-expansive interpretation of the free exercise clause that is inconsistent with first amendment jurisprudence.137 thus, the smith decision embodies the “no-exemptions” approach, viewing the free exercise clause as protecting against purposeful discrimination, not the incidental effects of general legislation. three years after the court rendered the decision in smith, it upheld the “no-exemptions” interpretation of the free exercise clause in church of the lukumi babalu aye v. city of hialeah.138 in this case, the city of hialeah, florida enacted three ordinances that had the combined effect of proscribing religious animal sacrifice, and the court determined that the purpose of these ordinances was the suppression of the santeria religion.139 invoking smith and its “no-exemptions” view of free exercise, the court reaffirmed that neutral laws of general applicability do not traduce the free exercise clause, as they do not require the establishment of a compelling government interest to pass constitutional muster.140 however, when a statute affecting the free exercise of religion does not conform to the smith standards of neutrality and general applicability, it can survive constitutional scrutiny only if a compelling government interest is present and the law is narrowly tailored in pursuit of that government objective.141 that is to say, when a law or regulation singles out persons on the basis of religion for particular disadvantage, it must satisfy compelling interest and narrow tailoring criteria.142 for this reason, the court stated, “a law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.”143 the ordinances at issue in lukumi constituted targeting of religious behavior.144 the ordinances did not include within their reach other non-religious activities substantially related to the avowed government interests of safeguarding public health and preventing animal cruelty.145 thus, the ordinances were under inclusive—falling short of the requirement of general applicability.146 moreover, the actual effect of the ordinances in question, coupled with available contextual and historical evidence, shows that “the ordinances were enacted ‘because of,’ not merely ‘in spite of,’ their suppression of santeria religious practice[s].”147 the city could have achieved its twin interests of public health promotion and the prevention of animal cruelty through less expansive and far-reaching means—means that would not have reached santeria religious practices. because there was no cogent explanation for the overreaching nature of the regulations, the professed government objectives of the city were dubious at best, lending credence to the notion that the actual object of the regulation was the suppression of certain religious activity.148 finally, recordings of city council meetings revealed a general antipathy for the santeria religion and its practices on the part of council members, hialeah denizens, and other government officials.149 thus, as these examples show, the city ordinances were decidedly non-neutral, having as their object the suppression of santeria religious practice.150 since the city council of hialeah did not narrowly tailor the ordinances under examination, the discernment of a compelling government interest in this case could not have saved the city’s regulations 137 see id. at 878 (explaining the supreme court “…never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.”). 138 508 u.s. 520 (1993). 139 church of the lukumi babalu aye v. city of hialeah, 508 u.s. 520, 534 (1993). 140 id. at 531. 141 id. at 531–32. 142 id. at 533. 143 id. at 546. 144 id. at 520. 145 id. at 543. 146 id. at 545–46. 147 id. at 540. 148 id. at 538. 149 id. at 541–42. 150 id. at 542. 130 religious exemptions to neutral laws of general applicability vol. 6:2 (pursuant to smith above).151 moreover, since there can never be a compelling government interest in suppressing particular religions or their practices, the city of hialeah failed in passing the compelling-interest test.152 “legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. the laws here in question were enacted contrary to these constitutional principles, and they are void.”153 this is analogous to impermissible discrimination in the context of race; the lack of narrow tailoring, which would have been exemplified by a closeness of fit between means and ends, along with supplemental evidence, meant that the discrimination in question was based solely on religion and, as such, represented impermissible discrimination rooted in animus or prejudice.154 a. the theory of religious exemptions as a paradigm of disparate impact discrimination the disparate impact theory of discrimination is primarily concerned with the eradication of hierarchies predicated upon irrelevant characteristics, such as race. the theory does not cognize discrimination in terms of purpose or intent (as in the strauder standard of impermissible discrimination listed below), but rather in terms of the operation or effects of laws and regulations. if a law or regulation does not embody purposeful or intentional discrimination but nonetheless operates in a manner that disproportionately affects persons based on race or other impertinent distinctions (e.g., gender, national origin, religion), the law or regulation constitutes invidious discrimination.155 there is, however, one exception: if the law or regulation satisfies other conditions, such as the business necessity requirement, it does not constitute a form of invidious discrimination that qualifies for protection under title vii.156 one should understand the disproportionate effect here as a burden placed on certain groups—a burden that creates “artificial, arbitrary and unnecessary barriers to employment” for persons based on their group membership.157 even though a law or regulation may be devoid of a discriminatory motive or purpose based on such irrelevant classifications, laws qualifying for judicial relief under title vii disparate impact standards are similar in their outcomes to laws that have a discriminatory purpose. in other words, they have outcomes similar to those one would anticipate if, for example, employers used race as a “criterion of selection” or “sorting tool” that effectively distributed opportunities along racial (or other) lines. however, such laws and/or regulations are not “functionally equivalent” to the use of race as a “criterion of selection” for employment because laws qualifying for disparate impact relief satisfy legitimate government interests in addition to operating in a way that distributes opportunities along racial lines.158 purposefully discriminatory 151 id. at 546. 152 id. at 546–47. 153 id. at 547. 154 all laws discriminate. the question is thus not discrimination per se, but rather what forms of discrimination are permissible. with race and racial classifications, the supreme court has associated impermissible discrimination with racial prejudice—or discrimination designed to subjugate and subordinate persons on the basis of racial classification and identification. this standard has roots in the case of strauder v. west virginia, 100 u.s. 303 (1879). in this case, the court defined impermissible discrimination as being based singularly on race—that is, rooted in racial prejudice, or judgments against particular groups or classes of persons that served “to deny persons of those classes the full enjoyment of that protection which others enjoy.” id. at 309. 155 the civil rights act of 1964, as amended in 1991, allows for disparate impact claims based on the following classifications: “race, color, religion, sex, or national origin.” see 42 u.s.c. §§ 2000e-2(k) (2012). thus, the statute considers these categories or classifications irrelevant for the purposes of employment, with the exception of employment in religious organizations. the civil rights act of 1964 allows for discrimination based on religion in the employment practices of religious organizations. see 42 u.s.c. §§ 2000e-1(a) (2012). courts have generally granted religious organizations sweeping autonomy in hiring practices and internal operations that far exceeds the exception to religious-based discrimination outlined in title vii. see caroline corbin, above the law? the constitutionality of the ministerial exemption from antidiscrimination law, 75 fordham l. rev. 1965, 1975–76 (2007). 156 griggs, 401 u.s. at 431. 157 id. 158 michael perry, the disproportionate theory of racial discrimination, 125 u. pa. l. rev. 540, 554 (1977). 2016 columbia journal of race and law 131 laws, whether overt or covert, do not satisfy any other interest or purpose except racial selection; they reduce to race.159 since the laws and/or regulations qualifying for disparate impact relief satisfy a purpose other than racial selection, and since they do not make any express racial classifications, they are race-neutral in terms of purpose or intent. they are, to quote the griggs court, “practices that are fair in form, but discriminatory in operation.”160 the practices are “fair in form” precisely because they do not entail intentional discrimination (overt or covert), and they are unfair in operation because they have effects similar to practices based on purposeful discrimination—effects that could be eschewed due to a lack of “business necessity.” thus, these laws, regulations and practices operate in ways that, although not intending to discriminate, unfairly perpetuate “the status quo of prior discriminatory employment practices.”161 irrespective of discriminatory intent, however, these laws engender a disadvantage for blacks, as compared to whites, in areas ranging from educational to economic attainment. it should also be noted that regulations and practices that encumber those with low educational attainment and low income disproportionately burden blacks.162 in this way, certain race-neutral policies exhibit the effects of purposeful race-based discrimination because they place a greater burden on blacks than they do on other racial groups. such policies give relevance to race, effectively sorting opportunity along racial lines—even though they are devoid of racially discriminatory purpose. it is the absence of necessity, coupled with racial relevance (i.e., racially disproportionate impact) that defines invidious discrimination pursuant to the theory of discrimination expounded in griggs.163 therefore, if such policies do not satisfy the “business necessity” requirement, and create “artificial, arbitrary and unnecessary barriers to employment” for blacks, this constitutes invidious discrimination. in a manner similar to the theory of discrimination expounded in griggs, the theory underlying the exemptions approach to religious free exercise is primarily concerned with the elimination of hierarchy among groups. instead of racial inequality, however, the exemption theory focuses upon inequalities among religious groups and the relative ability of members of these groups to engage in practices that follow from their religious convictions. it is explicitly concerned with the differential treatment accorded to “powerful and influential” religious groups in the democratic process relative to “unpopular or unfamiliar” groups, theorizing that the latter are more susceptible than the former to burdens engendered by neutral laws of general applicability.164 exponents of the exemptions approach to free exercise do not understand this inequality or group disadvantage in terms of intentional or purposeful discrimination, but rather, in terms of insensitivity and ignorance to the demands and needs of these groups.165 this ignorance and insensitivity is structural—usually the result of majority-minority relations in democracies—and judicially executable exemptions purport to correct this imbalance of power by ensuring that voice is given to groups otherwise marginalized by the structural inequality. both the exemption and no-exemption views […] insist on neutral, “secular” laws and government practices, but the no-exemption view makes that judgment exclusively according to the perspective of the government, while the exemption view takes the perspective of the religious claimant, as well as the countervailing interests of the government, into account.166 159 id. at 553. see also mclaughlin v. florida, 379 u.s. 184, 194 (1964) (“that a general evil will be partially corrected may at times, and without more, serve to justify the limited application of a criminal law; but legislative discretion to employ the piecemeal approach stops short of permitting a state to narrow statutory coverage to focus on a racial group.”). 160 griggs, 401 u.s. at 431. 161 id. at 430. 162 perry, supra note 158, at 557–58. 163 griggs, 401 u.s. at 430–31. 164 mcconnell, supra note 38, at 1419–20. 165 nussbaum, supra note 58, at 116. 166 mcconnell, supra note 38, at 1419. 132 religious exemptions to neutral laws of general applicability vol. 6:2 mcconnell associates the “perspective of the government” with majoritarian politics, asserting that “a law or governmental practice is not neutral if it embodies the majority’s view on a contested question of religious significance to the minority.”167 on contested questions of importance to religious minorities, then, the “majority’s view” is not neutral with respect to religion because it does not take into account the “perspective” of the religious persons burdened by the law or action in question. although mcconnell does not label this incidental disadvantaging of certain religious groups discrimination, the mechanics of disadvantage bear an uncanny resemblance to disparate impact discrimination in the context of race. 168 a failure to consider the effects of laws, regulations and/or government practices on certain religious persons—specifically those affiliated with unpopular faiths—results in outcomes similar to those one would anticipate if, for example, government actors used religion (or particular religions) as the “criterion of selection” or “sorting tool” that effectively distributed opportunities along religious lines. 169 in short, it has effects similar to intentional discrimination against particular religions—even though the practices under examination are devoid of discriminatory intent or motive. however, such laws, regulations and/or practices are not “functionally equivalent” to the use of religion as a “criterion of selection” for disability or disadvantage because laws qualifying for judicial exemption satisfy legitimate government interests in addition to operating in a manner that distributes opportunities along religious lines. in other words, the burden is incidental; it is not the object of the law to discriminate on the basis of religion. in contradistinction to lukumi above, the laws, regulations and/or practices under examination in cases of religious exemption do not reduce to religion; they do not represent impermissible discrimination rooted in animus or prejudice.170 what is more, the source of disadvantage—while not necessarily traceable to a history of prior intentional discrimination—is nonetheless structural in nature. the normal functioning of democratic institutions and the advantages that accrue to religious majorities are the wellspring of disadvantage here, as opposed to the purposefully discriminatory actions of individuals or institutions. this structural inequality and the attendant disadvantage of minority religions vis-à-vis more powerful religious groups means that seemingly “neutral” laws of general applicability are more likely to inadvertently disadvantage certain religious groups even though the laws in question serve legitimate government objectives and lack discriminatory motives (such as the interdiction of controlled substances in smith). analogously, the structural disadvantage of blacks relative to whites means that, at least in the context of employment law, regulations and practices based on “neutral” criteria of general applicability, such as education requirements and testing procedures, will be more likely to disadvantage blacks than whites even though the laws in question serve legitimate interests and are absent discriminatory intent. in both contexts, structural disadvantage renders members of the racial or religious group(s) in question vulnerable to neutral laws of general applicability. by virtue of ignorance or insensitivity to the impact that such laws, regulations, practices and/or procedures have on socially disadvantaged groups—whether religious or racial in composition—these practices exhibit the effects of invidiously discriminatory policies specifically because of the impediments they place on employment opportunity (in the context of race) and free exercise (in the context of religion). they give relevance to race and religion—effectively sorting opportunity along racial and religious lines in areas of law where such classifications should have no pertinence, and they further perpetuate the condition of social disadvantage facing certain groups. one’s particular religious affiliation should not determine the receipt of government benefits (i.e., unemployment compensation as in sherbert), and one’s race should not determine employment opportunity (i.e., griggs). 167 id. 168 id. 169 id. 170 id. 2016 columbia journal of race and law 133 therefore, if such consequences of laws, regulations, procedures and/or practices are avoidable— that is, if the government does not have a compelling interest in uniformity or could achieve its interest in a less intrusive way (i.e., the compelling-interest test of sherbert and yoder codified by rfra), or if there is no “business necessity” for employment procedures (i.e., title vii of the civil rights act)—then there is an obligation to eschew such adverse outcomes. there is an obligation to reduce the relevance of race and religion in the distribution of opportunities, an obligation to reduce morally arbitrary inequalities. 171 furthermore, just as the statutory level serves as the domain of execution for disparate impact in the context of race (e.g., title vii), the legislative arena—post-smith—serves as domain of execution for disparate impact as applied to religion (e.g., rfra). it is clear from the similarities underscored above that there is a nexus between the disparate impact theory of racial discrimination and the legislative and judicial practice of carving out exemptions for religious persons whose ideals conflict with so-called neutral laws of general applicability. the mechanics of disadvantage work in the same fashion, with structural inequalities engendering vulnerability to neutral laws of general applicability. this vulnerability has the potential to translate into practices that exhibit the effects of invidiously discriminatory policies through the placement of unnecessary burdens on certain groups. it is this absence of necessity, coupled with racial relevance (i.e., disparate impact) that defines invidious discrimination pursuant to the theory of discrimination propounded in griggs and title vii. similarly, it is the absence of necessity (i.e., failure to satisfy the compelling interest and/or narrow tailoring requirements) coupled with religious relevance that defines invidious discrimination pursuant to sherbert, yoder, and rfra. thus, one can best understand the theory underpinning the exemptions approach to free exercise as a paradigm of disparate impact discrimination. although sherbert, yoder and rfra do not explicitly refer to the disadvantage facing religious persons as discrimination (as in title vii), contemporary research on the nexus between equal protection and free exercise jurisprudence confirms that an understanding of equality rooted in the disparate impact theory of discrimination forms the basis of the exemptions approach to religious free exercise. in her work exploring the connections between equal protection and free exercise jurisprudence, bernadette meyler notes that the equal protection logic of purpose and effects expounded in washington v. davis 172 is at odds with the compelling-interest test of sherbert.173 the davis court held that race-neutral laws devoid of discriminatory intent or purpose are consistent with the demands of equal protection—even if such laws produce racially disparate results. in short, purpose—not effect—is relevant from an equal-protection standpoint; one should classify this understanding of equality as “formal” or procedural.174 as long as policies do not purposefully discriminate and are fair in procedure or form, they are consistent with the demands of equal protection (equality). in contrast, the sherbert court embraced a “substantive” notion of equality that was concerned with not only proscribing intentional discrimination, but also ensuring the relative ability of religious groups to follow the dictates of their conscience in the absence of such impermissible discrimination. equality here deals with the obstacles faced by certain groups when they engage in religious exercise—impediments not faced by other similarly situated groups.175 here, the actual effects of laws on religious practice matter; they are, in contrast to davis, relevant from the standpoint of equality under the law. the smith decision brought these inconsistent interpretations of purpose and effect into alignment, as justice scalia’s majority opinion used the equal protection logic of davis to countermand the compelling-interest test of sherbert.176 scalia writes: 171 see will kymlicka, politics in the vernacular: nationalism, multiculturalism, and citizenship 328 (2001) (discussing morally arbitrary inequalities). 172 426 u.s. 229 (1976). 173 meyler, supra note 32, at 336–37. 174 davis, 426 u.s. at 276. 175 id. at 276–77. 176 id. at 337. 134 religious exemptions to neutral laws of general applicability vol. 6:2 just as we subject to the most exacting scrutiny laws that make classifications based on race […] so too we strictly scrutinize governmental classifications based on religion. but we have held that raceneutral laws that have the effect of disproportionately disadvantaging a particular racial group do not thereby become subject to compelling-interest analysis under the equal protection clause. [our] conclusion that generally applicable religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest is the only approach compatible with these precedents.177 sherbert embraces a form of equality that runs counter to the formal concept of equality propounded in washington v. davis. just as race-neutral laws “disproportionately disadvantaging a particular racial group” do not need to survive the compelling-interest test (heightened scrutiny) to pass constitutional muster, neither do “religion-neutral” laws that burden a particular religion.178 in other words, the same standard of equality applies in both contexts, and it is a standard inconsonant with sherbert and an effects-based approach to equality under the law. to embrace sherbert would be to champion the compelling-interest test in the context of religion, and this would require a focus on effects of neutral laws of general applicability—something expressly rejected by equal protection case law.179 thus, the court associates the compelling-interest test— the exemptions approach in the context of religion—with disparate impact discrimination in the context of race. in other words, the court understood the exemptions approach to free exercise as a paradigm of disparate impact discrimination; since there is no constitutional right indemnifying against disparate racial impact, there is similarly no right against disparate religious impact.180 to the extent that disparate impact protections exist, then, they exist on the statutory (not constitutional) level through measures such as rfra and title vii. just as davis relegated remedies for race-based disparate impact to the statutory level (further legitimating measures such as title vii), the court’s ruling in smith served the same function in the context of religion. in fact, the smith court noted that it was constitutionally unproblematic for legislative bodies to grant religious exemptions to generally applicable laws.181 in recent years, however, the court has evinced hostility toward disparate impact legislation in the context of race, but not in the context of religion; it has adhered to its dicta in smith but not davis. for example, the court’s decision in ricci v. destefano called into question the constitutionality of race based disparate impact statutes and severely circumscribed the range of cases in which employers could apply the disparate impact requirements of title vii.182 above all else, the court’s decision in ricci followed from its embrace of an individualized interpretation of equal protection—an interpretation espoused by affirmativeaction rulings such as wygant v. jackson,183 city of richmond v. j.a. croson co.,184 and adarand constructors v. pena.185 in these cases, the court construed equal protection as guaranteeing a positive right to be judged as an individual, without reference to “morally arbitrary” group attributes.186 if the exemptions approach to free exercise is best understood as a paradigm of disparate impact discrimination, and if the application of this 177 emp’t div., 494 u.s. at 886 (emphasis in original quotation). 178 for controlling precedents in these cases, see emp’t div. v. smith, 494 u.s. 872 (1990) for religion, and washington v. davis, 426 u.s. 229 (1976), for race. 179 emp’t div., 494 u.s. at 886 n.3 (“but we have held that race-neutral laws that have the effect of disproportionately disadvantaging a particular racial group do not thereby become subject to compelling-interest analysis under the equal protection clause.”). 180 id. at 886 n.3 (citing washington v. davis, 426 u.s. 229 (1976)). 181 id. at 890. 182 557 u.s. 557 (2009). 183 476 u.s. 267 (1986). 184 488 u.s. 469 (1989). 185 515 u.s. 200 (1995). 186 primus, supra note 17, at 553. 2016 columbia journal of race and law 135 paradigm of discrimination at the statutory level is unproblematic, why has the court found this paradigm constitutionally problematic when applied to race? b. religion, race and the equal protection clause: attempting to understand the court’s differential treatment of race-conscious and religious-conscious public policies what accounts for the discrepancy between the court’s treatment of religious and race-conscious public policies? perhaps there is something peculiar to race that renders the very act of classifying and sorting opportunity based on race deleterious and constitutionally problematic, whereas classifying and sorting opportunity on the basis of religion does not have a similarly pernicious effect. there are at least two reasons why this is an untenable method of reconciling the court’s free exercise and equal protection jurisprudence. first, the court’s opinion in smith belies the notion that racial classifications and race-conscious decisionmaking warrant greater scrutiny than religious classifications. for example, justice scalia’s majority opinion states, “just as we subject to the most exacting judicial scrutiny laws that make classifications based on race […] so too we strictly scrutinize governmental classifications based on religion.”187 if the court treats racial classifications as more problematic than religious ones, it seems to offer an opinion unequivocally contrary to the controlling case on free exercise exemptions. thus, this argument is dubious at best. second, despite the court’s retrenchment of race-conscious public policies in recent years, it has still refused to champion a per se rule against racial classifications.188 if racial classifications were inherently pernicious and constitutionally problematic regardless of their object, a distinction between invidious and non-invidious forms of discrimination would be misplaced. if nothing intrinsic to racial classifications and race-conscious decision-making justifies the differential treatment of race and religion in the context of disparate impact and equal protection, perhaps disparate impact in the context of religion does not involve group classifications (or group-based decision-making) and this alone explains the differential consideration given by the court. one might be tempted to arrive at this conclusion since individuals—not necessarily particular religious groups—exercise the right to religious free exercise. if religious exemptions do not entail group classifications, then religious-conscious policies would not contravene the positive equal protection right to be judged as an individual. as such, this could account for the constitutional distinction between the two applications of the disparate impact theory of discrimination considered above. this attempt at reconciliation, however, is similarly unviable. although it is true that individuals ultimately exercise the right to religious free exercise, successful claims for judicial relief (exemptions) have required the establishment of a connection to a religious group and its practices. for example, “[i]n bringing free exercise claims […] the challenger is obliged to describe the collectivity to which she belongs, persuasively alleging its religious character and the nature of the accompanying religious beliefs.”189 this is evident in the two cases forming the legal-theoretical foundation of rfra: yoder and sherbert.190 187 emp’t div., 494 u.s. at 886 n.3. 188 the notion that racial classifications are inherently pernicious and should be outlawed is known as the “anticlassification principle.” “the anticlassification principle has never been applied to all situations and all spheres of social life.” and, even in the case of racial classifications made by state actors, racial classifications are not always subject to strict scrutiny. see jack m. balkin & reva b. siegel, american civil rights tradition: anticlassification or antisubordination, 58 u. miami l. rev. 9, 19 (2003). 189 meyler, supra note 32, at 285. 190 it is important to note here that, even if this standard is not derivative of sherbert and yoder, there is still a group classification being made insofar as these protections are available to religious persons only; the protections apply to the general class of religious persons, regardless of one’s particular religious affiliation; there is no individual consideration of religious belief. given this, the benefit is conferred only to members of this specific class based on group membership. one wonders, ontologically speaking, what differentiates this type of group-based consideration from the consideration of membership in a racial group. insofar as neither type of classification is inherently deleterious, there does not appear to be any reasonable distinction to be made between these two types of group classifications. 136 religious exemptions to neutral laws of general applicability vol. 6:2 in yoder, the court went to great lengths to ensure that the respondent’s claims were religious in nature, noting that “[a] way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the religion clauses, the claims must be rooted in religious belief.”191 the court further reasoned that allowing individuals to reject state regulation based on subjective, philosophical judgments—as opposed to religious ones—would run counter to the principle of “ordered liberty” and be akin to anarchy (wherein everyone makes “his own standards on matters of conduct”).192 ultimately, the court concluded that the claims made by the old order amish were not reducible to individual judgment. “giving no weight to such secular considerations […] the traditional way of life of the amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.”193 thus, the amish rejected the regulatory authority of the state in yoder because of their religious beliefs; the actual content of their religious beliefs conflicted with the state regulation.194 similarly, in sherbert the court addressed the issues of religious belief and group membership—noting that the appellant was a member of the seventh-day adventist church whose religious beliefs were genuine. furthermore, it was beyond question that the appellant’s religious beliefs ran counter to the conditions placed on unemployment recipients. “no question has been raised in this case concerning the sincerity of appellant’s religious beliefs. nor is there any doubt that the prohibition against saturday labor is a basic tenet of the seventh-day adventist creed.”195 these statements imply that, if the court were to discover the beliefs were disingenuous, not relevant to the regulation in question, and/or non-religious, the practice under examination would not be eligible for protection under the free exercise clause. thus, the inquiry in sherbert follows the same general form, and to argue that disparate impact in the context of religion does not entail group-based decision-making is to ignore the basic logic of these foundational cases. such an argument is a nonstarter; one cannot coherently defend the position that disparate impact in the context of religion does not entail group-based decision-making when the cases establishing the legal-theoretical framework for religious exemptions follow a group-based analytic. what is more, the distinction between group and individual classifications in this context is problematic. even if the evidence furnished above is not convincing—even if one does not view sherbert and yoder as establishing the legal-theoretical framework for all religious exemptions—a court or legislature must still engage in group classification in order to arrive at a decision that a religious exemption is warranted. at a minimum, one must establish that the actions in question fit within the class of persons/actions defined as religious; the exemptions in question are not available to secular persons or organizations and their actions. thus, one must have membership in a class—a group affiliation—even if said affiliation is not an organized religion or group. without viewing such persons and actions through the lens of this general grouping it would be impossible for legislatures or courts to grant exemptions on the basis of religious identity. religious identity is deemed relevant for consideration, and this identity establishes class membership for the purposes of legislation and adjudication. if none of the possibilities outlined above accounts for this discrepancy, maybe the privileged position of religion in the united states constitutional system wields some explanatory power. after all, the bill of rights explicitly incorporates the right to free exercise under the auspices of the first amendment. while this argument has some superficial plausibility, it lacks explanatory power from a constitutional perspective. after the court’s decision in employment division v. smith,196 all cases involving religious exemptions derive their authority from statute—not the constitution. as such, it cannot be the fact of constitutional free exercise 191 yoder, 406 u.s. at 215. 192 id. at 215–16. 193 id. at 216. 194 id. at 218. 195 verner, 374 u.s. at 399 n.1. 196 494 u.s. 872 (1990). 2016 columbia journal of race and law 137 incorporation that explains the court’s differential treatment of disparate impact statutes in the context of race and religion. to be sure, legislatures and other governing bodies may be following their interpretations of the religion clauses when they grant exemptions (i.e., it is a legislative attempt at realizing a cherished, constitutional principle), but one could also make a similar argument for race-based disparate impact statutes such as title vii. in other words, one could argue that title vii represents a legislative attempt to realize the constitutional principle of equal protection under the laws. therefore, the privileged position of religion in the constitutional system cannot explain this discrepancy. because there is no constitutional explanation for the differential treatment accorded to race and religion in these contexts, the legitimacy of statutory disparate impact as applied to religion can serve as a justificatory mechanism for race-based disparate impact statutes. in other words, since the court has not interpreted the legal-theoretical model of religious exemptions as offending the equal protection clause, and since the theory underpinning the exemptions approach to free exercise is best understood as a paradigm of disparate impact discrimination, this article concludes that the theory undergirding religious exemptions to neutral laws of general applicability (the understanding of equality it enshrines) represents a viable and robust justification for race-based disparate impact policies such as title vii. if disparate impact statutes in the context of religion (e.g., rfra) do not offend the positive equal protection right to be judged as an individual, then, by virtue of their consanguinity, neither do race-based disparate impact statutes. however, the arguments of this article have the advantage of meeting the conservative wing of the court—i.e., those moving public policy in the direction of color-blindness—on its own terms. the individualized equal protection clause cannot explain the court’s disparate treatment of race and religion; this bolsters the contention that race-based disparate impact statutes such as title vii do not offend the constitution and “the war between disparate impact and equal protection” is overblown. one can best make “peace” between equal protection and disparate impact by realizing that the “war” is chimerical. although there appears to be no constitutional explanation for the court’s adverse reaction to race, there is at least one plausible extra-constitutional explanation for this distinction. daniel ortiz has noted a serious discrepancy within equal-protection case law; mainly, when rendering determinations of impermissible racial discrimination, the supreme court has clung tenaciously to the intent (purposeful discrimination) requirement in the context of housing and employment law, but it has not held fast to the intent requirement in other areas of law, such as jury selection and voting rights.197 in contrast to these other areas, when it comes to housing and employment law a plaintiff must establish discriminatory intent for the court to arrive at a finding of invidious discrimination; he/she cannot simply point to discriminatory effects (disproportionate racial impact). in these contexts, discriminatory intent acts both to sniff out non-racial classifications that are used as a pretext for race (when there are no overt racial classifications but racially impermissible motives), but the intent requirement simultaneously ensures that wealth—a class that correlates with race—remains protected from judicial reach.198 one can see this concern in the davis court’s opinion: “a rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average [b]lack [person] than to the more affluent [w]hite [person].”199 so here intent “works not just to identify troubling classifications but also to insulate others—which largely constitute our 197 see washington v. davis, 426 u.s. 229 (1976) (discussing employment discrimination); vill. of arlington heights v. metro. hous. dev. corp., 429 u.s. 252 (1977) (discussing housing discrimination). see also daniel r. ortiz, the myth of intent in equal protection, 41 stanford l. rev. 1105, 1139 (1989). 198 id. at 1138–40. 199 washington v. davis, 426 u.s. 229, 248 (1976). 138 religious exemptions to neutral laws of general applicability vol. 6:2 society—from serious review.”200 to ortiz, this desire to insulate from review classifications such as wealth reflects overriding liberal values in society. it reflects the political ideology of liberalism—specifically the notion that individuals should be able to define for themselves what constitutes the good life, and this entails state neutrality to questions of the good life (these should be decided by private actors).201 perhaps, then, the ricci court applied the “strong-basis in evidence test” to title vii because disparate impact was being used— or at least had the potential to be used—to create the kind of distributional effects that would have resulted from the constitutional rule the davis court decried. that is to say, a weaker requirement than the strongbasis-in-evidence standard runs the risk of establishing a quota system, which would produce through statutory means effects similar to the constitutional rule rejected in davis.202 and, if the court was wary of interventions in the employment and housing markets in davis because such interventions would have run counter to fundamental liberal values, why would they not be wary of similar interventions in the context of title vii, even if those interventions were guided by statute and not principles of constitutional law? this is one plausible extra-constitutional explanation for the court’s differential reaction to group classification in the domains of race and religion. iv. conclusion from the conclusions reached in the preceding sections, it is clear that a nexus exists between the disparate impact theory of racial discrimination and the legislative and judicial practice of carving out exemptions to neutral laws of general applicability. more specifically, the theory underpinning the exemptions approach to free exercise is a paradigm of disparate impact discrimination. despite this theoretical similarity, the u.s. supreme court has evinced a general hostility toward race-based disparate impact statutes, while it has found religious exemptions to generally applicable laws constitutionally unproblematic. in accordance with evidence presented in the foregoing sections of this article, there is, constitutionally speaking, no tenable method of differentiating religious and race-conscious decision-making such that one form of group-based evaluation should be greeted with hostility and the other open acceptance, if not outright embrace. because the court has not interpreted the legal-theoretical model of religious exemptions as offending the equal protection clause, and because the theory underpinning the exemptions approach to free exercise is best understood as a paradigm of disparate impact discrimination, the theory undergirding religious exemptions to neutral laws of general applicability (the understanding of equality it enshrines) represents a viable and robust justification for race-based disparate impact policies such as title vii. this justificatory approach has the advantage of meeting the conservative wing of the court on its own terms, and it elucidates the fantastical nature of the purported tension between disparate impact and equal protection. as such, the evidence presented in this article contributes to a defense of race-conscious policies such as title vii and the history upon which they are founded. 200 ortiz, supra note 197, at 1139–40. 201 id. at 1141. 202 kenneth marcus argues that the ricci court adopted the strong-basis-in-evidence standard to eschew a quota system. see marcus, supra note 18, at 74. marcus also contends that disparate impact can be made consistent with the demands of equal protection only by the adoption of the strong-basis-in-evidence standard. to marcus, equal protection allows for disparate impact to serve only the purpose of “eliminating intentional and unconscious discrimination,” and the strong-basis-in-evidence standard allows for disparate impact to fulfill this purpose while reducing the likelihood that racial quotas will be established. see id. at 55. vol 2.1-final proof 2012 columbia journal of race and law 117 the desire for whiteness: can law and economics explain it? shilpi bhattacharya* this article provides a new theoretical perspective on colorism by considering it from an economic point of view. it relies on three theories of law and economics that explain racism. while critiquing these theories, it also extends them to evaluate colorism. because these theories correlate race with skin color, applying these theories to colorism requires distinguishing colorism from racism using the “desire for whiteness” as a tool for analysis. further, this article provides a comparative perspective of colorism in the traditional american labor market and the indian arranged marriage “market.” it finds that: (a) these theories are able to provide some insight into why decisions in these markets are colorist; (b) the insights are incomplete and do not fully explain the complexities of colorist interactions, though they do explain some of colorism’s history; (c) the indian arranged marriage market strengthens these theories; and (d) only mcadams’s status production theory is able to deliver an account of the desire for whiteness. it concludes that a legal framework relating to colorism should aim to eliminate this desire from society. i. introduction.................................................................................................................120 a. whiteness as a commodity.............................................................................................122 ii. aligning colorism with racism..............................................................................................125 iii. the origins of colorism in india ...........................................................................................126 a. a historical view of colorism in arranged marriages in india........................................128 iv. fitting colorism in a theoretical framework.........................................130 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! ! *!assistant professor of law, o.p. jindal global university, delhi, india. b.a., ll.b. (honors), the wb national university of juridical sciences; ll.m. university of virginia school of law. i would like to thank richard mcadams, lee fennell, prabhakar singh, sudha bhattacharya, alok bhattacharya and the participants and panelists at the 2011 law in society annual conference in san francisco for extremely helpful comments and suggestions. i would also like to express my deep gratitude to the editors of this journal for their contribution towards shaping this article. the usual caveat applies.! 118 desire for whiteness vol. 2:1 a. associational animus.........................................................................................................130 1. does becker’s theory explain colorism?.......................................................................132 b. statistical discrimination...................................................................................................134 c. can statistical discrimination explain colorism?...............................................................137 d. status production...............................................................................................................139 e. how does status production explain free riding?..............................................................140 f. applying the theory of status production...........................................................................142 g. can the status production theory also explain colorism?..................................................144 v. colorism and the law in india..............................................................................147 vi. conclusion......................................................................................................................149 i. introduction she’s more like a gypsy nor ever,” said aunt pullet, in a pitying tone; “it’s very bad luck, sister, as the gell should be so brown; the boy’s fair enough. i doubt it’ll stand in her way i’ life to be so brown. – george eliot1 aunt pullet’s concern for the future of maggie sullivan, the so-called “brown-skinned”2 heroine of george eliot’s classic novel the mill on the floss, was not unfounded.3 studies have shown that colorism, the differential treatment of individuals in economic and social transactions based solely on differences in skin color, is pervasive in modern societies. expressed positively, colorism is a preference for persons of lighter skin; expressed negatively, it is the exclusion, denial, or penalizing of persons of darker skin. this article introduces colorism to the law and economics discussion of racism, and considers whether the existing theories of discrimination in law and economics provide an explanation for colorism. this article finds that existing theories of racism are unable to explain the deep rootedness or persistence of colorism. yet these theories allow for a better understanding of the complexities of colorism and its relationship to racism. more importantly, the insights provided by the application of these theories are useful in locating the role of law in addressing colorism. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 george eliot, the mill on the floss 58 (s. shuttleworth ed., routledge 1991) (1860). 2 brown-skinned people—those who are neither black nor white, but fall in between—are the easiest to identify as the targets of colorism. 3see eliot, supra note 1 (george eliot portrayed maggie sullivan, the dark-skinned protagonist of the mill on the floss as a tragic and non-conformist heroine. her dark color and her family’s lamentations and chidings about her skin color were integral parts of the tragic atmosphere of the strife, struggle, and confrontation that eliot built around maggie’s character. it was considered unusual for the heroines of romantic novels at that time to be portrayed as darkskinned). 2012 columbia journal of race and law 119 colorism is intuitively linked to racism because skin color has dominated our understanding of racial classifications. in societies that are racially heterogeneous such as the united states, skin color preferences may be more commonly tagged as racism, whereas similar preferences may be classified as colorism in societies that are racially uniform. can the same behavior constitute racism in one society and colorism in another? comparing racially homogenous and heterogeneous societies such as india and the united states, respectively, can provide a more comprehensive understanding of the source and existence of colorism and its distinction from racism. this article undertakes such a comparative study by examining the prevalence of colorism in the united states employment market and the indian “arranged marriage market.”4 this provides the opportunity to study colorism in the public and private spheres in different cultural contexts. in this way, the economic theories of racism are truly challenged in their application to such completely contrasting circumstances, and in the process, their strengths and weaknesses are better exposed. colorism is expressed in many nations as a desire for whiteness. why do people of nearly all races have a desire for whiteness? the answer will enable a better understanding of how law can address colorism. this article examines three existing economic theories of racism. gary becker introduced the first economic theory based on taste for discrimination.5 second is the theory of statistical discrimination.6 statistical discrimination occurs when generally held beliefs about average group characteristics are used to make assumptions about the behavior of individual members of the group.7 the third and most recent account of racial discrimination is richard mcadams’s status production theory.8 race discrimination by this account is “a means by which people who share roughly similar but observable traits that come to be known as ‘race’ produce social status for themselves.”9 the commonality of these theories is that they rely on the visibility of skin color and the ease with which skin color allows us to make racial classifications. this article is divided into six parts. part i argues that the existence of colorism is established through the prevalence and pervasiveness of whiteness as a privilege in society. part ii examines whether it is possible to distinguish between colorism and racism. part iii studies some aspects of the history of colorism in india. part iv examines the economic theories of racism and attempts to relate them to colorism. part v discusses the law on colorism in india. part vi puts forward a conclusion. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 most marriages in india are arranged. this means that the marriage is initiated and determined by one or more intermediaries, usually a family member, rather than the prospective marriage partners themselves. 5 see gary becker, the economics of discrimination 14 (2d ed. 1971). 6 edmund phelps and kenneth arrow have been credited with introducing this theory. economists dennis aigner, glen cain, shelly lundberg, and richard startz later contributed to the theory. this article limits itself to the initial theorization of statistical discrimination by phelps and arrow. 7 stewart schwab, is statistical discrimination efficient?, 76 am. econ. rev. 228 (1986). 8 richard h. mcadams, co-operation and conflict: the economics of group status production and race discrimination, 108 harv. l. rev. 1003 (1995). 9 id. at 1045. 120 desire for whiteness vol. 2:1 a. whiteness as a commodity cheryl harris describes whiteness as a kind of property, evidenced, for instance, by the attempts of blacks with light skin color to “pass” as white. as she explains it, blacks attempted to pass as white because possessing whiteness meant enjoying various privileges that were exclusively associated with being white.10 colonization and the slave trade led to the legal construction of blacks as chattel. the exploitation of black slaves contributed to the construction of whiteness as property because, at that time, whiteness represented mastership.11 therefore, being white was valued in a manner similar to the value associated with the possession of property. in america, the law played a significant role in creating and sustaining the idea of whiteness as property by recognizing the differential rights and privileges of whites.12 similarly, whiteness was valued in colonial india because whites had privileges that native indians did not.13 in short, whiteness had value. it was exclusively possessed and, therefore, it was desired. in what way do we value whiteness and how do we measure its value to us?14 is the value given by individuals to whiteness a factor of the racial identity of that individual? studies have shown that skin tone has a substantial impact on the way a person is treated in society and affects one’s chances for successful employment and marriage.15 in many societies, skin color is directly associated with social status, and those who are dark-skinned are economically and socially disadvantaged.16 in america, lighter-skinned blacks are reported to face much lower incidences of discrimination than darker-skinned blacks, not only from whites but also from other blacks.17 the literature shows similar effects for darker!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 10 cheryl i. harris, whiteness as property, 106 harv. l. rev. 1709, 1713 (1993). 11 id. at 1715–16, 1721. 12 id. at 1737–42, 1745. 13 an example of this is exclusive membership in clubs and other social institutions. see, e.g., mrinalini sinha, britishness, clubbability, and the colonial public sphere: the genealogy of an imperial institution in colonial india, 40 j. brit. stud. 489, 490 (2001). 14 andrew hacker, two nations, black and white, separate, hostile, unequal (1992) (describing a study conducted on a group of white students to determine how much they valued whiteness that asked each student how much financial recompense they would request to be changed from white to black; many students asked for $50 million or $1 million for each black year). 15 research conducted before and during the civil rights movement suggested a continuing relationship between the variations in skin tone and the life opportunities of black americans. the study finds strong support for continuing social stratification of blacks on the basis of skin tone. see verna m. keith & cedric herring, skin tone and stratification in the black community, 97 am. j. soc. 760, 760–61 (1991). darkness is found to lead to greater criminal activity, suggesting that darker blacks face greater disadvantages in legitimate opportunities, and as a result are driven to criminal activity. see, e.g., kwabena gyimah-brempong & gregory n. price, crime and punishment: and skin hue too?, 96 am. econ. rev. 246 (2006); see also leonard m. baynes, if it’s not just black and white anymore, why does darkness cast a longer discriminatory shadow than lightness? an investigation and analysis of the color hierarchy, 75 denv. u. l. rev. 131 (1997) (discussing various studies which establish that darker-skinned persons face greater discrimination than lighterskinned persons). 16 see william a. darity, jr., intergroup disparity: economic theory and social science evidence, 64 s. econ. j. 805, 821 (1998) (citing studies conducted in different countries that uniformly evidence social and economic preference for lightskinned persons). 17 blacks with lighter skin tone report dramatically better treatment from whites and partially better treatment from blacks than those with darker skin tone. see joni hersch, skin tone effects among african americans: perceptions and 2012 columbia journal of race and law 121 skinned persons of other racial categories as well, such as asians and latinos.18 in china, there is a common saying that “white skin can cover 1,000 uglinesses.”19 in india, there is an entrenched social preference for white skin.20 lighter skin is considered a sign of beauty and men specifically seek light skin color as a requirement in a prospective mate.21 fairness cream advertisements connect fairness to greater employability and beauty.22 initially, these products catered specifically to women,23 but recently, a large number of these fairness creams have started being marketed for men.24 some fairness creams include “shade meters” that measure skin tone before and after using the product. this is a clear instance of the social legitimization of the desire for whiteness and its commodification by the encouragement of whiteness as an ideal that can be attained by gradually moving from a darker to a lighter shade. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! reality, 96 am. econ. rev. 251 (2006). alice walker defined the “prejudicial or preferential treatment of same race people based solely on their skin color” as “colorism.” see alice walker, if the present looks like the past, what does the future look like?, in in search of our mothers’ gardens 290, 290–91 (1983); see also trina jones, shades of brown: the law of skin color, 49 duke l.j. 1487 (2000) (discussing the history and evolution of colorism, its role in present society, and the treatment of courts regarding claims of colorism). 18 see kajalie shehreen islam et. al., fair factor: the whiter the better, star weekend magazine (may 12, 2006), available at http://www.thedailystar.net/magazine/2006/05/02/cover.htm (preferences for lighter skinned women amongst bangladeshi men and the lengths to which bangladeshi women go to lighten the color of their skin by a few shades in a society where everyone is a shade of brown). discrimination based on darkness of skin is not limited to african americans. see baynes, supra note 15, at 131. the wages of latino men tend to decrease with the darkness of their skin. see christina gomez, the continual significance of skin color: an exploratory study of latinos in the northeast, 22 hisp. j. behav. sci. 94, 94 (2000). 19 pearl e. grimes, aesthetics and cosmetic surgery for darker skin types 12 (2008). 20 see debarshi dasgupta, our true colours, outlook (july 29, 2009), http://outlookindia.com/fullprint.asp?choice=1&fodname=20090629&fname=cover+story+%28f%29&sid=1 (describing indians’ obsession with skin color, including the lower adoption numbers for darker babies in adoption agencies, and an incident in which a woman committed suicide after her husband constantly harassed her for being dark). 21 see william darity, jr., caste or race: parallels or disjunctions, in against stigma: studies in caste, race and justice since durban 400 (balmurli natrajan & paul greenough eds., 2009) (in a national survey taken in 2000 by the family planning commission of india of 3,800 young people, sixty-seven percent said they would look for a “fair complexion” in a prospective mate, citing malvika kaul, arranged marriages bounce back: what’s love got to do with it, the sunday times of india rev. (sept. 3, 2000)). however, darity points out that “the real test for the presence of a racial system in india would be that color is associated strongly with social status and economic privilege.” darity, supra note 16. 22 for instance, an indian whitening cream television advertisement depicts a dark complexioned woman being rejected for a job at a beauty company and then after using the cream and becoming a few shades lighter she is shown to not only be given the job but a leading position at the beauty company. see fuffu2009, fair n lovely ad india female, youtube, july 23, 2009, http://www.youtube.com/watch?v=ubbufbkbovy (ayurvedic fair and lovely skin cream by hindustan unilever ltd.). 23 prior to the advent of whitening creams, traditional remedies were used for skin lightening. 24 for examples of these products, see emami fair and handsome: advanced whitening cream for men by emami, available at http://www.fairandhandsome.ae/ (last visited feb. 5, 2012), and fair and lovely maximum fairness (fairness cream for men) by hindustan unilever ltd., available at http://www.fairandlovely.in/products/men.aspx (last visited feb. 5, 2012). nivea for men has a range of skin whitening products by beiersdorf, available at http://www.niveaformen.in/products/whitening.html (last visited feb. 5, 2012). 122 desire for whiteness vol. 2:1 the desirability of whiteness is also reflected in mainstream cinema. black women rarely play romantic leads in hollywood films and those that do are usually lighter complexioned.25 similarly, almost all indian women who play romantic roles in bollywood films are also light-skinned.26 thus, both western and eastern societies attach a similar value to whiteness. just as trina jones recounts experiences of warnings given to black women against staying out for long periods in the sun for fear of becoming too dark,27 indian girls are also brought up with similar warnings and associated negative conceptions surrounding dark skin color. darker-skinned people use skin lightening creams and other products to increase their access to opportunities and resources.28 whiteness is thus an asset—a property that has crossed cultural differences to come to be universally valued and commodified. those who possess it are privileged and those who do not constantly seek to acquire it in the hope of overcoming their disadvantage.29 dark-skinned people have not sufficiently questioned the value attached to whiteness. they have accepted white standards of beauty and value as true. because of this, a desire for whiteness has developed among them and they are also prejudiced along similar lines.30 the preceding discussion suggests that colorism is expressed as a preference for whiteness. however, is the desire for whiteness merely a form of racism or is it its own independent phenomena? the following section examines the distinction between racism and colorism. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 25 jones, supra note 17, at 1514. 26 dark complexioned indian women actors such as nandita das and smita patil have been restricted to roles in alternative cinema rather than mainstream bollywood. see zeenat khan, kennedy centre honors indian women in film, indep., march 23, 2011, http://www.theindependentbd.com/paper-edition/editorial/post-editorial/40497-kennedycentre-honours-indian-women-in-film.html (nandita das admits that skin color affects the kind of roles a woman can get in films); see also evelyn nakano glenn, yearning for lightness: transnational circuits in the marketing and consumption of skin lighteners, 22 gend. & soc’y 281, 290 (2008). 27 jones, supra note 17, at 1520 n.145. 28 according to a villanova university study, another example of the benefit of lighter skin color is that lighterskinned women are more likely to receive shorter prison sentences than darker-skinned women. see bim adewunmi, racism and skin color: the many shades of prejudice, guardian, october 4, 2011, http://www.guardian.co.uk/world/2011/oct/04/racism-skin-colour-shades-prejudice?intcmp=srch. 29 the belief in the advantages of lighter skin color is ingrained at a young age. see dark girls (urban winter entertainment; duke media 2011) (the preview of the documentary film dark girls shows a clip from a 2010 pilot study in which schoolchildren were asked to select from pictures of dolls ranging from light to dark. the researcher asks a five-year-old black girl to show her the smart child. the girl points to the image of the lightest child. she does the same when the researcher asks her to pick the good-looking child. her reasons are “because she’s white” and “because she’s light-skinned.” by contrast, she selects the darkest child when asked to pick out the “ugly” child and the “dumb” child. this time, her reason is “cause she’s black”). 30 glenn, supra note 26, at 289; see also cynthia e. nance, colorable claims: the continuing significance of color under title vii forty years after its passage, 26 berkeley j. emp. & lab. l. 435, 441 (2005); dark girls (urban winter entertainment; duke media 2011). the preview for the documentary film shows how the african american community has accepted lighter skin color as the prevailing standard of beauty. 2012 columbia journal of race and law 123 ii. aligning colorism with racism existing scholarship on colorism has distinguished colorism from racism in order to establish the presence of colorism as a distinct phenomenon.31 for instance, jones believes that while colorism is an important element of racism, it is also its own distinct phenomenon.32 title vii of the civil rights act of 1964 distinguishes color from race as grounds for a claim of discrimination.33 the obvious ground for distinction between the two is that colorism is not confined to the technicalities of racial boundaries, i.e. it can be both inter-racial and intra-racial. for instance, aunt pullet’s concern in the mill on the floss was that the protagonist maggie sullivan’s brown skin would not be considered favorably by prospective white suitors even though she was racially white.34 this represents intra-racial colorism. particularly in the context of racially homogeneous societies, it is worth questioning whether the distinction between colorism and racism is a genuine one to make. scholars have argued that there is a more fundamental basis for this distinction, which derives from a critical conception of race and the construction of racial boundaries. according to jones, skin color is the device used to assign racial categories to people and race is the social treatment that is given as a result of that categorization.35 consequently, differences in treatment based on skin color do not result from racial categorization per se but from difference in skin color alone.36 as a corollary, the value associated with being lighteror darker-skinned is related to the proximity of skin tone to the racial ideal, i.e. white.37 is the desire for whiteness a reflection of racism or colorism? vijay prashad argues that the desire for whiteness cannot be conflated with race because conceptions of beauty are to do with the quality and not the essence of being.38 such conflation, prashad argues, “does not enable us to grasp the historical dynamics of skin color on the subcontinent.”39 the consumption of products, such as skin lightening creams, that are designed to shift color boundaries nevertheless cannot change racial categories. similarly, a changing color dynamic, such as a move towards a preference for light but not absolutely white skin colors,40 will not affect conceptions of race. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 31 see jones, supra note 17, at 1493–98; see also angela p. harris, economies of color, in shades of difference: why skin color matters 1, 1–5 (evelyn nakano glenn ed., 2009). 32 see jones, supra note 17, at 1493–99. 33 under title vii, courts in the united states can recognize colorism as a distinct harm. however, there have been few discrimination claims based solely on color, and many of the cases alleging color discrimination also allege race discrimination. see nance, supra note 30, at 436. 34 see eliot, supra note 1, at 125. 35 see jones, supra note 17, at 1493–98. 36 id. at 1493–98. 37 jones, supra note 17, at 1498 n.31. 38 vijay prashad, the karma of brown folk 98 (2000). 39 id. 40 see harris, supra note 31, at 4. 124 desire for whiteness vol. 2:1 colorism questions the clarity with which people are grouped into racial categories through skin color and therefore questions the basis on which individuals are assigned racial categories.41 some scholars consider colorism as a complex aspect of race discrimination.42 scholars holding this view consider colorism to be an evolutionary product of racism that will replace it, rather than a parallel and distinct phenomenon that coexists with racism. colorism is viewed as a consequence of the increasing intermixing of races, resulting in the blurring of clearly defined racial categories as black and white, and the replacement of racism. colorism then becomes the basis for subordination and discrimination among people of color.43 the following discussion describes the origins of colorism in india and historicizes the importance of skin color in the practice of arranging marriages in india.44 iii. the origins of colorism in india it is helpful to understand the origins of colorism in india in order to comprehend its nature and its connection to the institution of arranged marriage. skin color was considered important in india from a very early time, possibly dating as far back as 1500 b.c., when the aryans were said to have invaded india. the british colonization of india actually served to reinforce the conceptions of skin color that already existed.45 if colorism was not a product of colonization, can it be argued that its origin was independent of race? it is reasonable to assume that a variety of influences from india’s vibrant history all contributed in some way to the modern indians’ attitudes towards skin color. yet as the discussion below shows, early conceptions of color played an important role in setting the stage for modern attitudes towards colorism. this includes skin color preferences in arranged marriages. light skin color is a crucial aspect of appearance and is an important factor in selecting a partner in an arranged marriage.46 it is argued that both the origins of colorism and its role in indian arranged marriages were connected to early forms of the caste system in india. while early caste classifications may have been connected in some way to race, they were never completely superimposable. thus, unlike in the united states, colorism in india was never clearly a product of racial classifications. this will be discussed in greater detail in the discussion that follows. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 41 see id. at 1–2 (“colorism and racism are not only not identical; hierarchies of color can destabilize hierarchies based on race . . . . [c]olorism operates sometimes to confound and sometimes to restructure racial hierarchy.”). 42 see, e.g., baynes, supra note 15, at 131 (defining racism by a darkness and lightness paradigm); taunya lovell banks, colorism: a darker shade of pale, 47 ucla l. rev. 1705 (2000) (arguing that skin tone discrimination is a form of race discrimination). 43 see jones, supra note 17, at 1524; baynes, supra note 15, at 133 (arguing that even if race itself does not matter, color will still be a source of discrimination). 44 for an interesting description of the process of selecting a prospective bride in an indian arranged marriage, see serena nanda, arranging a marriage in india, in stumbling towards truth: anthropologists at work 196– 204 (philip r. devita ed., 2000). 45 see jyotsna vaid, fair enough?: color and the commodification of self in indian matrimonials, in shades of difference: why skin color matters 149 (evelyn nakano glenn ed., 2009). glenn believes that there is no evidence of colorism in vedic texts, but the association between skin color and social status likely predates british rule. see also prashad, supra note 38, at 97 (stating that existing notions of whiteness aligned with racist european notions). 46 vaid, supra note 45, at 148. 2012 columbia journal of race and law 125 there are some peripheral indications of colorism in vedic india.47 for instance, the division of texts in the yajurveda48 into the taittiriya-samhita, also called the krishna or black yajurveda, and the vajasaneyi-samhita, also called shukla or white yajurveda because the former is said to be “rather confused” and the latter only contains mantras, points towards associations of white color with superiority and purity in ancient india.49 in other words, the imperfect text was known as the “black” text and the pure text was known as the “white” text. the connotations attached to the colors white and black in ancient india may have had some connection with perceptions of skin color at that time. further, certain scholars such as macdonell50 have put forth a view that the division of the indian caste system was based on race rather than occupational distinctions, though this interpretation of the history of the caste system is controversial and has been discredited in some scholarship.51 macdonell argued that the word used in the later vedas to describe the division of indian society into different castes is varna, which some scholars have contended, means “color.”52 according to macdonell, the three upper castes in india—the priests, the military and the peasantry—were also collectively designated the arya varna, or “aryan color,” and the lower castes were designated the dasa varna, or “slave color.”53 this is also expressed in the rig veda54 by the description “black skin.”55 macdonell was of the view that the word varna (color) was used to emphasize racial distinctions in these classifications.56 macdonell has argued that later indian texts also describe the importance of color distinctions in the conception of the caste system.57 in certain pali58 texts, brahmins (members of the highest caste) have been expressed as considering themselves of the white varna and the other castes as of the black varna.59 nehru argues that the caste system served to organize different races that existed in india at the time— !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 47 this is a period of indian history that is recorded through texts known as the vedas, which provided some of the earliest records of indian history. the chronology of this period is disputed and some scholars consider it to go as far back as 2500 bc though the more commonly accepted date is 1500 b.c. the four texts constituting the vedas were a collection of existing knowledge and philosophy. these texts are credited to the aryans and their invasion of india. they are now considered as the earliest source of hinduism. see jawaharlal nehru, the discovery of india 76– 81 (1946). 48 this is one of the four collections of texts of the vedas and contains religious recitations for officiating priests. 49 see yajurveda 5 (rajbali pandey trans., diamond pocket books 2006). 50 a.a. macdonell, the early history of caste, 19 am. hist. rev. 230 (1914). 51 ralph pieris, caste, ethos, and social equilibrium, 30 soc. forces 409, 410 n.12 (1952) 52 macdonell, supra note 50, at 237. 53 id. at 241. 54 this is one of the four collections of texts of the vedas and is a collection of hymns. 55 macdonell, supra note 50, at 241. 56 see id. at 241. 57 id. at 243 n.9. 58 a language of north india used at the time of buddha and associated primarily with buddhist texts. 59 id. at 243 n.9. 126 desire for whiteness vol. 2:1 the aryans, the dravidians, and the indigenous tribes.60 the caste system began as a division between the aryan and non-aryan races, and enabled a more peaceful mechanism for the aryans to enforce their superiority over the conquered population.61 the caste system later acquired a more complex character as the division of functions and specializations within the caste system increased. others, however, argue that division of society under the caste system was based on occupation and not race or skin color, and the claim that the caste system originated from skin color does not reflect the complexities of caste nor the ways in which the caste system subsequently evolved in india.62 a. a historical view of colorism in arranged marriages in india the early history of colorism is also interlinked with customs of marriage. once the aryans conquered india, they established rules of endogamy. marriage outside the race or near degrees of kinship was forbidden.63 durant believed that aryans established these rules of inter-marriage and caste divisions based not on status but on color because they foresaw that, without these rules, their small numbers would be assimilated into the local population and they would lose their racial identity.64 durant also argued that initially the caste system was a system of racial division, its primary purpose being to regulate marriages in an endogamous group.65 as durant described it, it separated long noses from broad ones and aryans from dravidians.66 thus, arranged marriages were strictly regulated through the caste system to prevent the intermixing of castes and possibly races. in later indian history, the idea of the arranged marriage evolved and became popular for the reasons explained below. marriage was compulsory in the hindu system and unmarried men were considered outcasts.67 of marriage, durant writes: nor was marriage to be left to the whim of individual choice or romantic love; it was a vital concern of society and the race, and could not be safely entrusted to the myopia of passion or the accidents of proximity; it must be arranged by the parents before the fever of sex should have time to precipitate a union doomed, in the hindu view, to disillusionment and bitterness. manu gave the name of gandharva marriage to unions by mutual choice, and stigmatized them as born of desire; they were permissible, but hardly respectable.68 manu prescribed eight types of marriage of which the most prevalent and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 60 see nehru, supra note 47, at 84–85. 61 see id. at 85. 62 see s. chandrasekhar, caste, class, and color in india, 62 sci. monthly 151, 156 (1946). 63 will durant, the story of civilization 398 (1954). 64 id. at 398. 65 id. 66 id. 67 id. at 489. 68 id. 2012 columbia journal of race and law 127 acceptable form was one arranged by the parents which followed the rules of endogamy – marriage within the caste and outside the gotra.69,70 caste, even in the present day, typically serves to restrict marriage in hindu arranged marriages.71 one’s marital partner is found from within the same caste.72 in the past, the views of the prospective bride and groom were not consulted in the choice of a partner, as the marriage was not considered to be properly a matter of their concern.73 however, this practice is increasingly changing in arranged marriages in urban areas. traditionally, marriages were arranged by elder family members of the bride and groom with the process typically being initiated by the family of the bride. the bride’s family looks for a suitable unmarried man from within their own or their extended social circle.74 while this practice still exists, it has evolved to account for modern forms of communication such as the internet and newspapers, where profiles are now advertised. dependence on immediate social circles as a means to find a partner has reduced. in seeking a partner, the families of the bride and groom will consider a lighter colored girl to be more attractive.75 other attributes considered are age, health and absence of visible infirmities.76 skin color has thus played and continues to play an important role in the indian arranged marriage process. arranged marriages served to limit the occurrence of inter-caste unions. however, the history of arranged marriages in india does not explain how skin color preferences have become such an integral part of the process of mate selection. the initial color-based division of the caste system would, on the other hand, explain modern attitudes towards skin color even though the caste system is no longer divided along color lines. the view presented above of the possibly color-based division of indian society in ancient times by the then-invading aryans is similar to the later history of american and of european colonization. this repeated use of whiteness in the historical dynamics of power and exploitation has resulted in a separate value being associated with it. this value disregards racial boundaries. the history of colorism thus points towards a more complex relationship of color and race that has created a value in whiteness. colorism may no longer be confined to a subset of racism. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 69 along with caste, every hindu is also assigned a gotra. the nature of the gotra varies regionally. all members of a gotra are claimed to be descendants of a common founding ancestor. the question of gotra membership is only relevant in the present day in determining prospective marriage partners. an arranged marriage will generally not take place between members of the same gotra.” durant, supra note 63, at 958. 70 id. at 492. see also abu l-fazl allami, the a-in-i-akbari (institute of akbar) 337-41 (sir jadunath sarkar ed., h. s. jarrett trans., low price publications, 1949) (1590). 71 see morton klass, marriage rules in bengal, 68 am. anthropologist 951, 953–54 (1966). klass’ observations though dated are still valid. regional variations do, however, exist particularly between the northern and southern parts of india. in parts of south india, it is common to marry family members. 72 see id. 73 see id. 74 see id. 75 see id. at 960. 76 see id. at 960. 128 desire for whiteness vol. 2:1 iv. fitting colorism in a theoretical framework the discussion so far has established that colorism exists and is relevant to our present society, though it is as yet unclear whether it exists separately from racism and if so, what distinguishes it from racism. finding a theoretical explanation for colorism can help clarify these ambiguities, and the logical place to begin this explanation is within the existing sphere of theories. one may think of the theories of racism discussed below as attempting to provide in rationally explainable terms an answer to the question: what does the discriminator gain, and correspondingly, what do those who are discriminated against lose by engaging in racially discriminatory conduct? depending on the theory, the discriminator engages in discrimination to satisfy his or her peculiar tastes, statistically determined beliefs or competing social ambitions. each theory provides a powerful explanation of motives that is useful in understanding such behavior, though each theory also has its own drawbacks. these drawbacks may be a result of the limitations of the tools of applied economics, or they may simply be a result of the theories not taking into account important aspects of discrimination. this article asks the further question of each theory: do the same explanations of motivations for engaging in racially discriminatory behavior also explain the premium attached to whiteness, which in turn forms the basis for colorism? in fitting colorism into an existing theoretical framework, this article tests whether law and economics theories can explain the following phenomena that are relevant to colorism: (1) the existence of colorism in employment markets in the united states, (2) the existence of colorism in the “arranged marriage market” in india, and (3) the near universal desire for whiteness amongst different racial groups. each of these phenomena is analyzed in three parts. part a makes a case for gary becker’s theory of discrimination, referred to as the theory of associational animus; part b discusses statistical discrimination; and part c evaluates the status production theory. a. associational animus gary becker’s theory postulates that discrimination is caused due to individuals’ peculiar “tastes for discrimination.”77 that is, because discriminators do not have a taste for associating with certain persons, they wish to avoid contact with them. a taste for discrimination is a “non-pecuniary, psychic cost” that an individual incurs in associating with persons who are the subject of discrimination.78 in other words, individuals discriminate when they are willing to pay an amount or forego certain income because of their preference for not associating with certain persons.79 for instance, when an employer discriminates against an employee, the employer in effect incurs a non-pecuniary cost in not employing the employee because she may have to pay more to engage another employee (towards whom she has less aversion). becker suggests that the differential amount paid to employ the preferential employee be used as a measure for discrimination. this is referred to as a “discrimination coefficient” and represents the difference between the monetary price of labor in the market and the true or net wage paid to the non-discriminated against employee.80 the discrimination coefficient measures the intensity of the employer’s taste for discrimination.81 according to gary becker, in a competitive market, the effect of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 77 becker, supra note 5, at 153. 78 id.; see generally gary s. becker, the economic approach to human behavior 7 (1978). 79 becker, supra note 5, at 14. 80 id. at 153. 81 id. at 39. 2012 columbia journal of race and law 129 discrimination is to reduce the demand for those employees who are the subject of discrimination.82 however, other scholars argue that employers can have differing tastes for discrimination so that discrimination is more costly for some than others. employers who do not discriminate and have lower costs of discrimination will then absorb the employees who have been discriminated against. these scholars argue that in a competitive market, market forces will work to absorb the workforce that is discriminated against. gary becker suggests that direct contact between blacks and whites is necessary to develop a desire to discriminate.83 tastes for discrimination can cause either market discrimination, or market segregation, or both.84 becker states that the distinction between market discrimination and market segregation “is essential for a clear understanding of the observable consequences of tastes for discrimination.”85 segregation occurs when there is less contact between two individuals due to the presence of discrimination.86 it occurs because individuals exercise the choice not to associate with members of other groups.87 it may be a result of the taste for discrimination, for instance, if intergroup discrimination is greater than intragroup discrimination, individuals may prefer to associate with members of their own group.88 becker states that the taste for discrimination is the most important cause of discrimination but he does not claim that it is the only cause of discrimination.89 mcadams has criticized becker’s theory for being both overand underinclusive because it does not explain why whites shunned more public associations with blacks such as sitting next to them in buses while engaging in much more intimate associations with blacks such as employing them in household work as well as making black women their mistresses.90 mcadams argues that if discrimination was based on tastes for non-association, whites should have more strongly opposed associations with blacks in more private and intimate settings such as that of the home or in sexual relations. in making this argument, however, mcadams may have missed becker’s point that the taste for discrimination may cause market discrimination or market segregation, and that taste is not the only variable in determining actual discrimination.91 mcadams’s argument relates to segregation rather than discrimination. separation in buses, restaurants and other public fora are examples of segregation, which may or may not be a result of discrimination. becker would therefore classify these variations in contact between blacks and whites as segregation caused due to discrimination rather than discrimination per se. spatial segregation, or the physical separation of individuals in space, is the most common type of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 82 id. at 42. 83 id. at 154. 84 becker, supra note 5, at 157. 85 id. . 86 id. 87 id. at 14, 157. 88 id. at 159–60. 89 id. at 153. 90 mcadams, supra note 8, at 1037. 91 becker, supra note 5, at 157. 130 desire for whiteness vol. 2:1 segregation.92 however, segregation may take other forms such as the use of different institutions or the prevalence of hierarchical differences between members of different races in society.93 thus, mcadams’s criticism of this aspect of becker’s theory does not affect the strength of becker’s insights on discrimination. becker also argues that the nature and type of contact plays an important role in determining discrimination. therefore, more public associations can produce a greater amount of discrimination. one can argue that in such settings it was more difficult to choose the blacks with whom whites wanted to associate, and even where possible, such choices would be costly to make. whereas in private settings, whites could easily choose to associate only with the blacks toward whom they did not have a taste for discrimination, such as lighter-complexioned blacks. as such, the obvious disassociation with blacks in public settings may be the most efficient means of reducing contact where it was not otherwise possible to selectively associate. 1. does becker’s theory explain colorism? becker intended his theory to apply to all forms of discrimination in the marketplace, including discrimination based on color.94 however, in order to be able to explain colorism, one must attempt to logically explain stronger tastes for not associating with darker skin colors.95 in other words, are individuals’ preferences for not associating with others affected by the lightness or darkness of their skin color? there is some evidence to support such a taste in the data on skin color-based wage differentials.96 becker would claim that this wage differential represents the discrimination coefficient or the cost incurred by the employer in employing a darkerskinned employee. a taste for associating with persons of lighter skin may have originated from historical explanations of negative images associated with blackness.97 this is also supported by studies conducted by myrdal who contended that lighter-skinned blacks were preferred as slaves by whites because they were more aesthetically appealing to whites98 and were thought to be of higher intellect because of their white ancestry.99 historically, lighter-toned slaves were more often assigned to work in situations of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 92 see generally robert r. weyeneth, the architecture of racial segregation: the challenges of preserving the problematical past, 27 pub. hist. 11 (2005) (discussing the different forms of spatial segregation: partitioning and separation). 93 see, e.g., mark schneider et al., networks to nowhere: segregation and stratification in networks of information about schools, 41 am. j. pol. sci. 1201 (1997) (discussing the impact of racial segregation on information sharing networks about educational institutions). 94 becker, supra note 5, at 153. 95 one critique of the theory is that, in stating that persons do not desire association with members of a particular race, the theory does not explain the construction of race and how persons are categorized as a race. see mcadams, supra note 8, at 1041–42. 96 for a study on labor market outcomes of persons with different skin tones, see arthur h. goldsmith et al., shades of discrimination: skin tone and wages, 96 am. econ. rev. 242 (2006) (finding that skin color among african americans has an important effect on wages). 97 see baynes, supra note 15, at 137 (citing john m. kang, deconstructing the ideology of white aesthetics, 2 mich. j. race & l. 283, 299–300 (1997)). 98 thereby depicting the internalization of the norms of the colonizers. 99 see keith & herring, supra note 15, at 762. 2012 columbia journal of race and law 131 closer proximity to whites and within the sphere of their home whereas darker slaves were generally made to work in the fields and do hard manual labor.100 the fact that house slaves and slaves assigned to undertake skilled labor were disproportionately found to be lighter-skinned people with mixed racial heritage lends greater credence to the associational animus theory.101 in the indian arranged marriage market, lighter-skinned brides are prioritized and command a premium.102 families of dark-skinned prospective brides have been found to pay large amounts of money in dowry to secure a husband.103 conversely, dark men have been found to marry into poor families so that they can have a lighter-skinned bride.104 this dowry or price differential that arises from skin color differences could represent becker’s discrimination coefficient or a non-pecuniary psychic cost that individuals are willing to pay to avoid associating with darker-skinned women. to extend becker’s theory, assuming that under perfectly competitive conditions, there is perfect substitutability between fair brides and darker brides, some profit-maximizing grooms who do not have such a strong taste for discrimination or place a lower value on fair brides should change their preferences and seek darker brides who may in turn command less accomplished grooms due to their lower value in the marriage market. similarly, other grooms will also seek out darker brides until equilibrium is reached. amali philips finds that arranged marriages are considered to be the means for dark women to find marriage partners for themselves, which otherwise may not be possible.105 this is consistent with the generally held view among economists that discrimination would be eliminated in a perfectly competitive market.106 becker presented the first economic theory of discrimination. this theory finds some support in empirical evidence. explaining discrimination as a cost to the discriminator may even be a way of reducing discriminatory conduct in the market. however, becker’s theory is simplistic and leaves many questions unanswered,107 the primary one being: where does the desire for “whiteness” come from? if one considers the theory that indian skin color preferences arose from the caste system, it is interesting to note that not in its initial phase but as the caste system evolved social interactions between castes became severely restricted and rigid norms evolved to govern interactions between castes. segregation !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 100 see id. this may serve to explain away some part of the criticism of over-inclusiveness of the theory that, if whites did not have a taste for association with blacks, they would not have hired them to work in their homes where association with them at a comparatively intimate level would be unavoidable. see mcadams supra note 8, at 1037. 101 literature supports the theory that “[w]hen forced to deal with blacks, whites preferred blacks with lighter skin tones.” in fact, “[w]hites still seem to prefer and find less threatening persons who look more like themselves.” see jones, supra note 17, at 1513–14. 102 see vaid, supra note 45, at 148 (arguing that complexion has acquired a symbolic capital in arranged marriage negotiations). 103 see amali philips, gendering colour: identity, femininity and marriage in kerala, 46 anthropologica 253, 253– 54, 266–68 (2004) (describing instances of dowry negotiations in kerala and the role played by the skin color of the prospective couple in the dynamics of dowry). 104 dasgupta, supra note 20, at 22. 105 see philips, supra note 103, at 269. 106 see anne c. l. davies, perspectives on labor law 118 (2004). 107 another question left unanswered by the theory is why blacks with lighter skin tone would discriminate against blacks with darker skin tone. 132 desire for whiteness vol. 2:1 was also practiced by upper caste hindus.108 however, these practices were not a part of early forms of the caste system and it cannot be said that the caste system evolved as a result of tastes for not associating with certain people who may have been of darker skin color. a more commonly accepted explanation is that it was a result of the aryans’ need to maintain status and authority over the indigenous population after their conquest of india. also, this theory of tastes cannot explain how attitudes towards skin color were perpetuated over time and are prevalent with equal force in the present day. thus, a theory of tastes for association falls short of explaining why lighter skin color is desired. b. statistical discrimination statistical discrimination provides an account of racism that is based on rationality and shows that it is not necessary for such behavior to be grounded in animus or prejudicial intent. this is different from the status production theory where animus is an important aspect of the theory. however, the idea that statistical discrimination is economically efficient has been criticized as presenting a very narrow and normatively questionable idea of efficiency.109 moreover, since statistical discrimination is not based on actual facts but on discriminatory beliefs, it may be more costly than cost efficient for society. in his paper introducing the statistical theory of discrimination, edmund phelps takes the example of a traveler in a strange town faced with making a choice between eating dinner at his hotel or at another restaurant in town.110 assuming that the costs of acquiring information about restaurants are high and the restaurant at the hotel is believed to be inferior at least half of the time, phelps argues that it would be rational for the traveler to make a rule that he will eat outside the hotel on every occasion without any prior investigation of restaurant quality.111 this remains true even if such a rule can be called discriminatory (against the hotel) and even if, in some cases, the hotel food is better than the food at other restaurants. similarly, in the context of racial discrimination, a profit-maximizing employer may discriminate against blacks if information costs are high and the employer believes blacks to be less qualified or less reliable.112 this explains how it is profitable to make discriminatory decisions in certain situations. however, it does not explain why, for instance, in this situation all travelers may choose to eat at the restaurant in town instead of at the hotel. there should logically be an equal proportion of travelers choosing to eat at either the restaurant or at the hotel. in other words, it does not explain how blacks are uniformly disfavored in discriminatory decisions. moreover, with the passage of time and increased contact, discriminatory decisions may change in that the traveler in phelps’s example may realize that eating outside the hotel is not the better option and may, with time, start eating at the hotel instead. yet in the context of statistical discrimination, scholars have demonstrated how discrimination !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 108 at its worst, segregation took the form of terming certain castes to be ‘untouchable’ and following practices of ‘untouchability.’ it is tempting to think that untouchability arose from a taste for non-association, in line with becker’s theory, but the history of the caste system shows that untouchability was practiced much after the caste system was established. see human rights watch, caste discrimination: a global concern, report to the united nations world conference against racism, racial discrimination, xenophobia and related intolerance, durban, south africa, sept. 2001, available at http://www.ambedkar.org/research/castediscrimination.pdf. 109 mccaffery argues that statistical discrimination may be rational for a firm, but it is not efficient in a public sense. further, individual firm efficiency has “little normative significance in a world of market failures.” edward j. mccaffery, slouching towards equality: gender discrimination, market efficiency and social change, 103 yale l.j. 595, 611–12 (1993). 110 edmund s. phelps, the statistical theory of racism and sexism, 62 am. econ. rev. 659 (1972). 111 id. 112 id. 2012 columbia journal of race and law 133 can be self-perpetuating once discriminatory conduct is established over a period of time.113 this will be discussed in further detail below. individuals can be easily categorized based on race due to the association between race and skin color, and the observability of skin color. if, on average, people of different races differ in productivity due to unobservable causes such as quality of education or cultural differences, the statistical theory of discrimination postulates that employers can profitably use race as a proxy for these unobservable characteristics that come to be associated with race.114 phelps’s assumption of high information costs is noteworthy. high information costs may appear to be a restrictive assumption for justifying discriminatory behavior in the present world given that information costs have reduced with improvements in technology.115 kenneth arrow explains that these information costs do not refer to the easily verifiable or observable qualifications and characteristics of an individual.116 rather, these information costs refer to traits relevant to an individual’s employability that are not easily observable such as investments that workers make in themselves in the form of habits of action and thought, steadiness, punctuality, responsiveness and initiative, among others, which all contribute to the qualifications of a worker.117 however, these characteristics can be acquired with experience, training and motivation, and therefore, should not in themselves justify hiring decisions. strahilevitz, however, shows that an important cause of statistical discrimination is the lack of verifiable information about the subject of discrimination.118 one cause for high information costs may be privacy laws that prevent the disclosure of information (for example, criminal history records), thereby encouraging discriminatory decisions that would not be made if employers had more information.119 stravilevitz also shows that government disclosure of previously private information can reduce discrimination if statistical discriminators form a majority of discriminators in the market and the government-disclosed information is relatively accurate.120 thus, information costs are central to statistical discrimination. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 113 see ronald g. fryer jr. et al., experience-based discrimination: classroom games, 36 j. econ. educ. 160 (2005). 114 see kenneth j. arrow, what has economics to say about racial discrimination, 12 j. econ. perspectives 91, 96 (1998). 115 professor richard epstein makes a similar criticism of statistical discrimination. parties have enough incentives and opportunities in a free market to overcome high information costs. see mccaffery, supra note 109, at 612 (citing richard epstein, forbidden grounds: the case against employment discrimination laws 33–41 (1995)). 116 mccaffery makes a similar point by distinguishing between imperfect and incomplete information. incomplete information is information that is “neither known nor knowable.” it is such information which is problematic in the context of gender discrimination. see mccaffery, supra note 109, at 612–13. 117 see kenneth arrow, some models of racial discrimination in the labor market 21 (1971). 118 see lior jacob strahilevitz, surveillance: privacy v. antidiscrimination, 75 u. chi. l. rev. 363, 372 (2008). 119 id. at 363–64. 120 id. at 373. 134 desire for whiteness vol. 2:1 in his paper discussing racial discrimination in labor markets, kenneth arrow argues that statistical discrimination will occur only when employers incur “personnel investments.”121 personnel investments are costs incurred by employers every time a worker is hired and includes the cost of training.122 according to arrow, if there were no personnel investments, an employer would hire everyone who applied and simply fire those unqualified after evaluating their performance.123 however, personnel investments make changing the labor force from black to white or vice versa a costly proposition.124 given the costs associated with personnel investments, employers should be wary of making any mistakes in their hiring decisions. arrow thus explains that statistical discrimination occurs in order to reduce the possibility of costly mistakes arising as a result of an employer’s inability to completely evaluate the qualifications of prospective employees. in a costless world, of course, an employer would have all the information required to arrive at a correct hiring decision and then would hire an employee who would be least likely to sink the personnel investments made in her. this explanation presumes that either it is impossible to obtain accurate information about certain personal attributes or characteristics of people, or information costs are higher than the costs associated with mistaken decisions such as the cost of hiring an unsuitable person who may need to be dismissed from service after personnel investments have been incurred. otherwise, employers would invest in acquiring the correct information about prospective employees (given that mistakes can be costly in the form of sunken personnel investment costs) rather than use proxies to predict the potential characteristics of potential employees. this assumption of high information costs, while central to the statistical theory of discrimination, limits the scope and applicability of this theory. discriminatory conduct arising as a result of statistical discrimination can be perpetuated over a period of time. one of the reasons for this may be a rational worker’s unwillingness to invest in human capital in light of discrimination.125 when prospective employers make judgments based on race rather than the ability and qualifications of individuals, those individuals who are hired are not rewarded for the investments they make in acquiring these qualifications, which will in turn reduce the individual’s motivation to invest in acquiring these qualifications, leading to a cycle of self-perpetuating statistical discrimination.126 in other words, if individual a loses a job at an interview to competing individual b due to discriminatory beliefs about a’s abilities (even though both a and b are equally qualified), other members of a’s community will be unwilling to invest in the skills that a acquired since they will not consider it a worthy investment to make in light of a’s failure to obtain the job despite making the investment in acquiring the skills. this will in turn make those members less qualified and less able to obtain employment. in the context of gender-based discrimination, mccaffery makes a similar point that women are less inclined to pursue an education than men because of the lower salaries they are likely to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 121 arrow, supra note 117, at 21. 122 id. 123 id. 124 id. at 19–20. 125 daria roithmayr, barriers to entry: a market lock-in model of discrimination, 86 va. l. rev. 727, 731 (2000) (citing cass r. sunstein, why markets don’t stop discrimination, in free markets and social justice 151, 153–54, 157–58 (1997)). 126 see arrow, supra note 117, at 96–97. 2012 columbia journal of race and law 135 earn as a consequence of statistical discrimination.127 this lack of education further reduces their salaries.128 roithmayr uses principles of antitrust to argue that market discrimination is “locked-in” because of historical monopolistic conduct by whites, which created barriers to entry for blacks so that standards of competition that favored whites were locked in by the market over a period of time.129 due to market mechanisms, an initial advantage can feed back on itself to create an even larger advantage until that advantage becomes so large that it becomes “locked-in.”130 thus, racism persists because blacks do not enjoy the same opportunities to compete. the culturally specific standards of competition that have been institutionally locked in by white monopolistic conduct favor whites and create barriers to entry for blacks in a self-perpetuating cycle of discrimination.131 statistical discrimination can therefore explain the persistence and prevalence of racism in society. c. can statistical discrimination explain colorism? does the statistical discrimination theory help explain why whiteness is valued? the foundation for this theory lies in the ability and ease with which it is possible to characterize people into different groups, and then make generalized assumptions about their characteristics based on their membership in a group. does the presence of a variety of shades of skin color make this characterization more costly? can skin color (unconnected with race) be used profitably as a proxy for making employment decisions? for statistical discrimination to be profitable, the following conditions should be met: (a) high information costs, (b) the ability to clearly classify people into groups and (c) the ability to make correlations between the group’s attributes and its productivity. the assumption of high information costs and the restrictiveness of that assumption is the same for colorism and racism. it is possible to make correlations between skin color and productivity as suggested in (c) above. not only have such correlations been made, but they also have a basis in history. for example, in america, people with lighter skin tone, who were also persons of mixed racial heritage, were generally found to be better educated and wealthier, as they had the opportunity to capitalize on their white ancestry. this indicates that people associated lighter skin color with white heritage and that association consequently led to better education and more opportunities. empirical evidence suggests that employment decisions in the present day are also affected by skin color.132 in fact, a variety of studies conducted recently in the american labor market have found a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 127 see mccaffery, supra note 109, at 623 (citing ian ayres, price and prejudice, new republic, july 6, at 32 n.101). recent research suggests that this may no longer be a concern as women constitute a significant share of college students in the united states. 128 id. at 623. 129 roithmayr, supra note 125, at 731–32. 130 id. at 732. 131 id. at 734–35. 132 see, e.g., william a. darity jr. & patrick l. mason, evidence on discrimination in employment: codes of color, codes of gender, 12 j. econ. perspectives 63 (1998) 136 desire for whiteness vol. 2:1 gradient of better opportunities for persons with lighter skin color.133 therefore, a positive correlation can be drawn between skin color and the presence of unobservable attributes. these distinctions are not made purely based on skin color; rather, they are made because people of lighter skin color are assumed to be of white ancestry and consequently have the benefits that are associated with being white. such correlations are thus, racist rather than colorist because they are related to the employer’s belief in the historical link between the color and race of a prospective employee. this reasoning does not satisfactorily explain how employers and other decision makers draw fine distinctions between people of different skin color, and needs more in-depth study, which is beyond the scope of this article. finally, with respect to (b) above, given the different shades of skin color (as compared to the specificity of racial groupings), colorism belies the ease of classification into groups that racism promotes. it does not seem efficient to identify different skin tones and categorize individuals into a multiplicity of hues just to avoid high information costs. moreover, groups based on color will not be well defined so there are likely to be ambiguities about the classification of individuals into such groups. if it is difficult to classify individuals into groups based on skin color, then it will be correspondingly difficult to make assumptions about group attributes. there is a greater chance of decisions being made wrongly because of ambiguities in color-based classifications. while classifications based on race are clear and therefore easy to make, classifications based on skin color have an element of ambiguity that makes them complex. hence, it is less profitable for employers to make such decisions. it is doubtful that statistical discrimination will be efficient in the absence of clearly defined groups. in the indian arranged marriage market, prospective brides and grooms seek mates with certain characteristics. some of these characteristics are easily observable while others are not. a few examples of observable characteristics are beauty, family background and education. examples of unobservable characteristics are health, cultural and social values, and behavioral qualities—characteristics that can only be known with time and familiarity. because marriages are typically fixed soon after the time that the alliance is brought to the attention of the families and interaction between the prospective partners is strongly discouraged, unobservable characteristics are difficult to determine. skin color serves as an identifiable proxy for some of these traits; light skin color is associated with better breeding and higher social status.134 from the discussion above, it is clear that information costs are high in the indian arranged marriage market. it is also clear that indian arranged marriage market participants attribute positive traits to prospective partners of lighter skin color. thus, in making a choice between darker-complexioned girl a and lighter-complexioned girl b, the male will choose girl b if he knows equally little about both girls and her observable characteristics are equivalent to girl a. because marital decisions have been made on this basis for a long period of time, it is possible to argue that light skin has become so firmly established as a proxy for positive attributes that it is now a necessity for a prospective bride.135 even if there is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 133 for a study on labor market outcomes of persons with difference skin tones, see arthur h. goldsmith, darrick hamilton & william darity jr., shades of discrimination: skin tone and wages, 96 am. econ. rev. 242 (2006) (finding that skin shade among african americans has an important effect on wages). 134 see philips, supra note 103, at 253 (discussing the conceptions of skin color in kerala, a state of india, and the social judgments that color brings with it, as well as describing existing literature in social science about the importance of skin color in south asian arranged marriages). 135 see vaid, supra note 45, at 149 (noting that the association between light skin and marriage prospects starts at the birth of a female child with relatives commenting upon the gender and next the skin color of a new born baby); see also serena nanda, arranging a marriage in india, in stumbling toward truth: anthropologists at work 196, 196–204 (philip r. devita ed., 2000) (stating that skin color is an important consideration in indian arranged marriages). 2012 columbia journal of race and law 137 more information about girl a than girl b, the complexion of girl b is likely to make her a more successful candidate for marriage. only if sufficient negative characteristics can be imputed to the lightskinned girl, will she be disqualified as a marriage candidate. in fact, because fair complexion has come to be associated with beauty in general,136 even individuals choosing partners outside the arranged marriage market, where information costs are relatively low, prefer partners of a lighter skin color. moreover, the fact that discriminatory beliefs are uniformly held across racial and national divides fits well within the theory of statistical discrimination. in sum, statistical discrimination can explain why decisions about prospective marriage partners are based on skin color. one shortcoming of statistical discrimination is that it cannot explain the complexities and intricacies of interactions in society that are affected by skin tone. it does not explain how skin color rather than some other equally visible attribute such as hair color is used as a proxy for making statistically based decisions. the associations between the race of a person and certain characteristic attributes, which, prima facie, have no actual relation with race, are created by society. there seems to be no basis for the creation of statistical beliefs about skin color in indian history. the discussion on the origin of the caste system in india (in section iii of this article) suggests that initial caste divisions may have been based on skin color. however, skin color is no longer relevant in determining the caste of a person. skin color is not even a proxy for caste in an arranged marriage as skin color and caste are distinct requirements that need to be met. statistical discrimination cannot explain how such deep-rooted beliefs regarding the positive attributes of being white have come about, even amongst darker-skinned individuals.137 it cannot explain the desire for whiteness. d. status production the status production theory postulates that racial discrimination arises from a desire for status. the theory finds support in the fact that the effect of racially discriminatory behavior has historically been the appropriation of status by whites.138 the theory is based on the desire to be socially esteemed and in particular, to seek status in small, close-knit communities that mcadams calls “socially connected groups.”139 mcadams argues that the desire for status is so great amongst members of socially connected groups that it motivates individuals to make material sacrifices for the sake of gaining status within a group.140 he then applies this argument to society as a whole. members of a socially connected group materially contribute to improving their inter-group status, so creating status for their group vis-à-vis !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 136 see, e.g., vaid, supra note 45, at 149 (describing indian dietary practices to ensure that pregnant women give birth to a light-complexioned child because of the association indians make between light skin color and beauty). 137 there is a rich supply of literature on what whiteness brings with it and the social construction of these benefits. for a comprehensive account bringing together different theoretical traditions, see david r. roediger, the wages of whiteness: race and the making of the american working class (1991). 138 mcadams, supra note 8, at 1044 (citing roediger, supra note 137 at 13, and derrick bell, white superiority in america: its legacy, its economic costs, 33 vill. l. rev. 767, 774 (1988)). see also harris, supra note 10, at 1745–46 (describing how the acceptance of white privilege in law in the period after the abolition of slavery contributed to the creation of whiteness as status); see also dasgupta, supra note 20, at 23 (presenting a view based on indian colonial history that fair skin represents social superiority in india). 139 mcadams, supra note 8, at 1023–24. 140 id. at 1031. 138 desire for whiteness vol. 2:1 other groups means that they will be esteemed by other groups because of their membership in the esteem producing group.141 according to mcadams, status is not only a means of bringing about, but also an end of intragroup cooperation.142 individuals cooperate with each other because they want to be esteemed by others and such cooperation results in esteem for the group as a whole. status is the reason for cooperation among individuals as well as a result of the cooperative endeavor. intra-group cooperation, on the other hand, brings about inter-group conflict in the form of competition for inter-group status.143 since social status is relative in that it is acquired in relation to others, investing in increasing the status of one’s group means subordinating the status of other groups.144 mcadams adds that the desire for status increases cooperation among members of a group.145 racism is a product of this desire for status. e. how does status production explain free riding? any theory of group behavior is faced with the challenge of being able to rationally explain how the tendency of members to free ride is overcome.146 mcadams’s status production theory argues that racial status production will occur even in the absence of any external coercion147 as long as socially !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 141 id. at 1045. 142 id. at 1029. 143 id. 144 mcadams, supra note 8, at 1031. 145 id. 146 the tendency to free ride arises when a good is non-excludable, and an actor internalizes all of the immediate costs of contributing to it, but only receives a part of the diffuse future benefits from the provisioning of the good. these goods are available for the enjoyment of all, regardless of who has contributed to producing them. thus, a rational individual will not contribute to the production of such goods because it is possible for the good to be produced and for the individual to enjoy its benefits without contributing to its costs. this behavior of benefiting from the efforts of others is known as free riding. as a result, there is little incentive to produce either a suboptimal amount of the good, or no amount of the good is produced. this is known as the “free rider problem.” studies have shown that factors such as group size, the noticeability and perceptibility of the contribution, and an individual’s share in the benefits can affect the motivation to free ride. free riding occurs when goods are collectively owned. see lee a. fennel, common interest tragedies, 98 nw. u. l. rev. 907, 919 (2004); robert albanese & david d. van fleet, rational behavior in groups: the free riding tendency, 10 acad. mgmt. rev. 244, 244 (1985). the classic example given of the free riding problem is voting in a democracy. it is possible to benefit from a change of government in a democracy without physically participating in the process of voting. however, a new government cannot be formed if no one votes. see also richard tuck, free riding 30 (2008). 147 in his book on the theory of collective action, mancur olson showed that large groups will not be able to produce public goods in the absence of external coercion. see mancur olson, the logic of collective action: public goods and the theory of groups (1971). richard tuck has succinctly described olson’s idea, “coercion, on his [olson’s] account, was justified only in these cases, where the fact that any one person’s contribution was negligible [in comparison to the whole] rendered the whole enterprise impossible without an external apparatus of compulsion. people in these instances have to be forced to do what is undeniably in their own interests.” tuck, supra note 146, at 5. olson took the example of the union closed shop to explain coercive mechanisms designed to prevent freeriding. id. at 8. the closed shop was an agreement between labor unions and employers where the employer agreed to employ only members of a particular labor union and accordingly employees were forced to agree to be members of that labor union for the duration of their employment. elinor ostrom has argued that collective action will be possible even without coercion where groups develop social norms. see elinor ostrom, governing the commons: the evolution of institutions for collective action (1990). 2012 columbia journal of race and law 139 connected groups overlap substantially with intra-racial or shared trait groups.148 socially connected and shared trait groups naturally overlap, according to mcadams, because the very visibility of skin color as a shared trait makes it advantageous for whites to come together as socially connected groups to create status.149 the status production theory thus presumes that individuals have a tendency to group together based on race and will overcome the urge to free ride because (a) they strongly desire to be esteemed by others, and (b) skin color is the ideal criterion for social grouping for the purpose of status creation.150 considering presumption (a) above first, mcadams’s devotion to the concept of esteem and the willingness of individuals to cooperate for the sake of esteem may be restrictive. when an individual’s desire for status is so strong, mcadams does not explain how individuals overcome the desire to create esteem for themselves by subordinating, rather than cooperating with others. in other words, he does not adequately explain why individuals invest in allocating esteem to others rather than invest in creating status for themselves. individuals will value esteem differently and all members of a socially connected, shared trait group may not be willing to incur the same costs to generate esteem; the latter costs borne for status creation. now considering presumption (b), can the mere visibility of skin color be responsible for overcoming free riding? the visibility of skin color is an important aspect of mcadams’s theory because it makes it easy to monitor defections or free riding by group members.151 the easier it is to identify noncontributing group members due to their physical characteristics or other factors, the easier it is to punish them for not contributing. punishments can take the form of social ostracism and stigmatization, or something more coercive. epstein opines that the argument against free riding does not take into account the ease of mobility as evinced by the new entry of and defection by certain subgroups. mcadams acknowledges that each socially connected subgroup will have a tendency to free ride when many socially connected groups comprise one shared trait group.152 given that all whites are not socially connected, some socially connected white subgroups will likely free ride on the investments of other whites. mcadams argues that status production will still occur because those socially connected white subgroups with lower status and few other options for status production will benefit from racial subordination.153 this is in line with olson’s idea of voluntary collective action in small group sizes.154 however, it is difficult to see how status can be produced if free riding is extensive. if some whites do not indulge in discrimination and do !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 148 see mcadams, supra note 8, at 1047. 149 id. at 1047–48. 150 the more observable the trait, the more status members have to gain by joining the group. id. at 1045–47 151 according to mcadams, the use of observable traits as proxies for granting esteem gives people a reason to care about the esteem generating behavior of others with whom they share the observable trait. esteem makes cooperation rational. id. at 1022. 152 id. at 1046. 153 id. at 1047. 154 see generally olson, supra note 147 (arguing that small groups are qualitatively different from large ones and the structure of small groups creates economic and social incentives that helps to induce voluntary collective action in them. thus, small groups produce public goods more effectively than larger groups. when applied to the status production theory, this means that members can more effectively produce status in socially connected groups through esteem allocation due to the smaller size of these groups.). 140 desire for whiteness vol. 2:1 not distinguish blacks in any way from themselves, the effect of the investments of other white subgroups will be diluted and may even be nullified. this occurs particularly when white subgroups who are not indulging in discrimination are likely to be the ones with higher social status. a majority of white subgroups must at least be ready to allocate esteem to other whites who are creating status in order for the status production theory to work. but mcadams does not explain why elite white subgroups will allocate esteem to whites with lower social status. another argument that mcadams puts forth is that free riding will be overcome by the presence of discriminatory social norms that transcend individual subgroups.155 epstein argues that the theory is wrong in concluding that status production (or only social and cultural norms) is powerful enough to motivate group solidarity in the absence of force or coercion.156 he also argues that the techniques of status production are not exclusively available to whites. blacks can also create status for themselves and the theory does not sufficiently take this into account.157 the following discussion provides a possible explanation for why blacks may not attempt to create status for themselves. f. applying the theory of status production the status production theory is able to explain the desire for whiteness. as with statistical discrimination, the status production theory is also premised upon the visibility of skin color. this makes race an easily identifiable marker for defining and creating shared-trait groups. the visibility of skin color plays an important role in status creation.158 mcadams argues that whiteness is a visible trait that is associated with higher status because of the investments that whites have made in status production.159 these investments then explain the desire for whiteness, which is the desire for the privileges and status that are associated with possessing white skin color.160 skin color has served as more than an indicator of class. it was the determinant of status regardless of a person’s actual socio-economic class.161 this is because whites have used skin color to create status for themselves. the status production theory can explain the desire for whiteness by relying on the association between color and status. this association explains the value society places on whiteness. the status production theory can also partially162 explain why blacks and other people of color value whiteness even though it is a characteristic that they do not themselves possess. for example, members of a dark-skinned indian family will nevertheless reject a prospective bride who is dark-skinned in favor of a light-skinned bride even though the family may share the same skin shade as the dark!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 155 id.; mcadams, supra note 8, at 1047. 156 richard a. epstein, the status production sideshow: why the antidiscrimination laws are still a mistake, 108 harv. l. rev. 1085, 1091–92 (1995). 157 id. at 1106. 158 mcadams, supra note 8, at 1045. 159 id. 160 jones, supra note 17, at 1528. 161 id. 162 the status production theory can only partially explain this because its explanation for why groups create status for themselves is based on the assumption that people tend to esteem characteristics in others which they also possess themselves, an assumption that is proved untrue in this case. 2012 columbia journal of race and law 141 skinned bride. this is because the characteristic of whiteness is associated with a group that has created status for itself. in this way, investing heavily in status accorded to whiteness,163 whites have been able to ensure that their beliefs associated with whiteness acquired the form of a social norm that was internalized by all of society.164 through their discriminatory interactions with whites, blacks are reminded of the benefits of being white and of the inferiority of being black. the desire for whiteness, then, is a desire to seek membership of the group believed to have a higher status. further, while people generally care about what others think, it is possible to use the status production theory to make a claim that, in particular, people care more for obtaining the esteem of persons who are highly placed in society than the esteem of group members who are no better off than themselves.165 this is not to say that the esteem of other blacks does not matter to blacks, but the desire for membership in the group with superior status may be stronger than the need for esteem from the fellow members of a socially subordinated group. according to the status production theory, members of a socially connected group give esteem to those members of their group, who participate in the creation of group status. in a situation where members of a group concede their inferior position,166 the group may invest in acquiring visible traits that others consider valuable, rather than trying to generate esteem for their own shared trait group.167 thus, internalizing the views of the more powerful and dominating members of society, like whites, is one possible reason for intra-racial colorism.168 in this situation, there is no motivation to invest in creating status for one’s own group, as no payoffs are being achieved from group membership. members may no longer feel it profitable for them to remain in that group but instead may strive to attain membership in another group.169 as acquiring the traits of other groups does not require the cooperation of group members, it may result in a loss of value in membership of the subjugated group. this may explain the feeling of low self-esteem among darkerskinned people, as well as their desire for whiteness.170 since negative feelings regarding dark skin color are common to members of a group, these attitudes do not fracture the existence of the group itself. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 163 see mcadams, supra note 8, at 1046. 164 social norms can arise amongst a collection of socially connected groups. id. at 1047. 165 we tend to value most the opinion of those we esteem highly. id. at 1024. in a situation where internalization of norms has resulted in greater esteem for persons who are believed to represent an ideal which a person is striving to reach, this could be a person of another group. thus, all persons of a group may esteem an ideal which they do not possess. 166 frequent exposure to negative evaluations can undermine the sense of self-worth. self evaluations have an effect on a person’s moral worth as well as her competency or efficacy. interestingly, the effect of colorism is different for women and men. skin tone has a significant effect on self-efficacy of black men and on the self esteem of black women, though the findings in the study are moderated for socio-economic status in the case of women. maxine s. thompson & verna m. keith, the blacker the berry: gender, skin tone, self esteem and self efficacy, 15 gender & soc’y 336, 339 (2001). 167 mcadams, supra note 8, at 1045. 168 nance, supra note 30, at 443. 169 this explains the attempts by blacks with lighter skin tones to pass as white. 170 studies show that skin color and not achievement determines identity and values about the self. skin color is positively related to feelings of self-worth and attractiveness. the study also points out how the effect of darker skin color is much more on women than men. however, a deeper examination of this interesting interplay of race and sex discrimination is beyond the scope of this paper. see thompson & keith, supra note 166, at 337. 142 desire for whiteness vol. 2:1 moreover, given that such attitudes are shared and are generally accepted, group members are not punished by other members for behavior that reduces the group’s esteem. the behavior of blacks and people with mixed racial heritage during the jim crow south suggests that it was too costly for those groups to invest in the subordination of whites. instead, it was more profitable to accept white superiority and align oneself with whites.171 for instance, some people with mixed racial heritage believed that their white blood made them superior to other black slaves.172 people with mixed racial heritage were thus using the value-ridden property of “whiteness” to create status for themselves.173 rather than group together to subordinate whites, people with mixed racial heritage and blacks competed to subordinate each other, and they accepted white superiority. furthermore, studies have shown that lighter-skinned blacks, or people with mixed racial heritage, took pains to maintain their distinctive status by engaging in conscious acts with the objective of furthering group interests. an example is their insistence on endogamy.174 these historical studies strengthen the explanatory power of the status production theory. g. can the status production theory also explain colorism? at first glance, the theory of status production explains some of the history of american colorism. for example, the systematic exclusion and disparagement of blacks by the formation of social networks such as the brown paper bag175 and blue-vein176 societies may be seen as the status production theory at work. these societies present a micro-picture of how skin color was used to create social hierarchies. firstly, these societies attempted to create and define an identifiable group on the basis of skin color where the inherent foundation for a group, or some other unambiguous boundary, did not exist naturally.177 the very essence of the distinction on which whites built their status—skin color—is eroded when the distinction between black and white is blurred by the creation of an intermediate category of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 171 an important part of the game of status production is to gain the approval of third party observers. a strategy would be to eliminate the existence of the third party group by including them in either one’s own group or the disparaged group and since it is better to be a part of the majority, all else equal, this strategy would involve defining one’s self as a part of the majority. mcadams, supra note 8, at 1049. 172 skin tone was an important criterion for attaining prestige in the community. see keith & herring, supra note 15, at 762. 173 it is no surprise that people with mixed racial heritage patterned their behavior on whites. id. at 763. 174 the disproportionate intermarriage amongst people with mixed racial heritage is contended to be the effect of a strong social norm enforced by their elite in order to preserve distributional rents associated with being such a person. see howard bodenhorn, colorism, complexion homogamy and household wealth: some historical evidence, 96 am. econ. rev. 256, 256, 259–60 (2006). see also keith & herring, supra note 15, at 760–61. 175 the “brown paper bag” societies excluded membership of those blacks whose skin was darker than the color of a brown paper bag. see keith b. maddox, brown paper bag syndrome: darker skinned blacks are subject to greater discrimination, 37 j. blacks higher educ. 46 (2002) [hereinafter brown paper bag syndrome]. 176 the “blue-vein” societies’ membership was restricted to those persons whose skin color was light enough for their veins to be visible. see baynes, supra note 15, at 141. 177 in some of these societies, people were admitted solely on the basis of their skin color regardless of their socioeconomic status. this was probably an extreme attempt at drawing a group boundary. 2012 columbia journal of race and law 143 people with skin color that falls within a diverse range between black and white.178 diversity of skin tones makes it difficult to create distinct groups based on skin color. however, these societies used innovative methods of achieving group exclusivity by objectively determining the precise skin tone required for membership in the group. group members could then make investments in status production with less fear of free riding. secondly, these color-discriminating societies show that skin color could be used as a means for status creation. the theory of the origins of the indian caste system based on a color hierarchy created by the aryans also points towards a link between skin color and status that supports the status production theory. if the theory is correct, then it is possible to say that the behavior of the aryans in creating social (or occupational) hierarchies based on skin color or varna was their attempt at creating a system of clearly defined groups that preserved their status by making the group to which they belonged the socially superior one. this fits neatly into the explanation provided by the status production theory. the status production theory can also be used to explain colorism in present-day society. societies make strong correlations between light skin color and higher social status. american employers may want to hire people with lighter skin color and indian men may seek brides with light skin color because they feel that such people come from a higher stratum of society and are consequently better situated to be employees or marriage partners, respectively. therefore, associating with such people will increase their own status. if one considers marriage to be a strategic decision of improving or establishing one’s social status,179 then the premium associated with a fair-skinned bride, in the form of a demand for a higher dowry for darker brides, is explained perfectly. setting aside historical and present-day examples, can the theoretical precepts of status production be used to explain colorism? the interconnectedness of socially connected and shared trait groups is an important part of mcadams’s theory as it explains why individual members of a group will allocate esteem to other group members. however, it is difficult to extrapolate the connection between shared trait and socially connected groups in the case of colorism because people who share the same skin tone may not always be a part of the same socially connected groups, and vice versa. given the diversity of skin colors, sometimes even among members of the same family,180 natural social connections are drawn between people of different skin color. in fact, very often, close family members can exhibit widely variant skin tones.181 as a result, the advantages that overlapping socially connected and shared trait groups provide to status creation in the case of racism is difficult to replicate with colorism. colorism blurs the color line, it shifts the paradigm of discussion from a simple black and white one to a more ambiguous one of whiteness and darkness. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 178 mcadams acknowledges that, as cross-membership between groups increases, people will invest less in subordinating other groups to which they may also belong. mcadams, supra note 8, at 1080. yet this category of mixed race people is not a product of the new age. they always existed. their existence has, however, not undermined the ability of whites to create status for themselves. examining the reasons for this is beyond the scope of this study. 179 indian and european history is replete with examples of rulers and kings marrying strategically to further their interest or status. when families look for prospective spouses for their children in an arranged marriage, the primary concern of the parents is that the child should marry into a family with status. 180 for example, the protagonist in eliot’s mill on the floss, maggie sullivan was dark complexioned whereas her brother was fair complexioned. see generally eliot, supra note 1. 181 see adewunmi, supra note 28 (describing the different skin shades of members of the author’s family from “white in certain lights” to “deep brown” to “dark as night”). 144 desire for whiteness vol. 2:1 taking this argument one step further, introducing colorism into the status production theory means acknowledging that there are a variety of skin colors within a race and that shared trait groups and intra-racial groups are not superimposable. members of the same race do not necessarily share the same skin color and therefore cannot form a part of a shared trait group. the basis of mcadams’s argument that the trait common to members of a race is skin color, and thus, shared trait groups are actually intraracial groups cannot stand unless members of a race can be said to group together based on their specific skin tone. since we do not generally observe such groupings in society, mcadams’s argument of intragroup cooperation by reason of esteem allocations to other group members, as well as his arguments for why free riding will not occur, cannot explain colorism. it is possible to take a different view of this by considering how whites have responded to groups who have tried to free ride on whites’ investments in status production. on the one hand, history shows that whites’ response was to preserve the distinctiveness of group boundaries by resorting to mechanisms such as the “one drop rule.”182,183 this is consistent with the status production theory because preserving group boundaries is necessary to avoid free riding on whites’ investments in status production. on the other hand, whites created a divide based on skin color by actively favoring lighterskinned blacks over darker-skinned blacks.184 one way to explain why whites created this distinction is that by distinguishing persons on the basis of skin tone, whites re-emphasized their own superiority in the so-called racial hierarchy. giving preference to people who were more akin to whites in terms of their most visible characteristic, skin color, and the benefits attendant to such preference like higher status, was a way to strongly reinforce the benefits associated with “whiteness” and thereby create a social hierarchy or normative structure in which the characteristic of whiteness was an ideal desired by all non-whites. this explanation is also consistent with the general idea of status production. to conclude, the idea that colorism can be a result of the desire to create status is compelling, and both historical and present-day examples exist to support such a thesis. however, the theory’s explanation of how status is created falls short of explicating colorism. the discussion that follows attempts to apply the understanding of colorism derived from the above to developing a legal framework for colorism in india. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 182 any person with even a drop of black blood was considered to be black and thus not white. see jones, supra note 17, at 1505. 183 the status production theory explains why rigorously enforcing boundaries between races pays off. mcadams, supra note 8, at 1049 n.182. 184 blacks with lighter skin tone report dramatically better treatment from whites and partially better treatment from blacks than those with darker skin tone. see hersch, supra note 17, at 251. in the majority of the cases, people with mixed racial heritage with their lighter skin tones were admired by blacks. see jones, supra note 17, at 1517. whites and lighter skinned blacks have been found to have deep-seated beliefs that dark-skinned blacks are more prone to violence, criminal activity, drug use, and laziness. see brown paper bag syndrome, supra note 175, at 46. according to mcadams, under the status production theory, people of a particular racial group invest in group boundaries to maintain their position in high status groups. mcadams, supra note 8, at 1045. however, since the goal of status production is to subordinate by gaining the approval of third party observers, mcadams suggests that an obvious strategy would be to eliminate third party observers by including them in one’s own group thereby defining ones group as the majority. see mcadams, supra note 8, at 1049. therefore, status production can explain the need to define oneself as belonging to the majority group. id. 2012 columbia journal of race and law 145 v. colorism and the law in india the discussion on racial discrimination and the law in india is superimposed with the dialogue on caste-based discrimination. while the media185 and academics186 discuss racism and colorism in india, there is little by way of law to support this discussion. human rights advocates and other legal activists have also not considered racism as a prominent form of discrimination in india. the only legal provision that could be used to redress racism in india is article 15 of the constitution of india, which prohibits all forms of discrimination, including discrimination based on race.187 in addition, section 153, clauses (a) and (b), and section 505 of the indian penal code of 1860188 prohibit actions that promote disharmony, hatred, and feelings of enmity and ill will on grounds of race. these provisions also distinguish between race and caste. however, no case primarily alleging racism has been brought before indian courts.189 this has led the united nations committee on elimination of racial discrimination (“cerd”) to question whether individuals are sufficiently informed about their rights against discrimination. the cerd has also expressed concern that there is no “specific statute providing for the right of individuals to seek from the courts just and adequate reparation or satisfaction for any damage suffered as a result of acts of racial discrimination.”190 furthermore, while the law addressing racism in india is limited and may not be adequate, there is absolutely no law that addresses colorism in india. article 15 of the constitution of india is titled “prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”191 discrimination based on color is not recognized as a ground of discrimination in the indian constitution. therefore, under the present legal framework in india, people facing discrimination based on color have to bring claims of racism. discrimination based on color is not legally recognized in india. however, racism is prohibited under the constitution of india. this article demonstrates that even though colorism may have historically originated from racism, in its present form, it is distinct from and unrelated to racism. this difference does not take away from the need to eradicate colorism.192 it is also important for the law to distinguish colorism from racism, as racism is much easier to monitor and regulate. this is because racism operates in the public sphere, where colorism manifests more in the sphere of private relations such as marriage. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 185 see dasgupta, supra note 20, at 16. 186 see, e.g., mara adelman & sonora jha, looking for love in all the white places: a study of skin color preferences on indian matrimonial and mate-seeking websites, 1 stud. in s. asian film and media 65 (2009). 187 india const. art. 15. 188 the indian penal code, no. 45 of 1860, pen. code, available at http://indiacode.nic.in. 189 see u.n. comm. on the elimination of racial discrimination, consideration of rep. submitted by states parties under art. 9 of the convention: concluding observations of the comm. on the elimination of racial discrimination: india, ¶ 18, u.n. doc. cerd/c/304/add.14 (sept. 17, 1996). 190 id. at ¶ 25. 191 india const. art. 15. 192 see contra hersch, supra note 17, at 251 (showing that the perceptions of the impact of colorism in society may be greater than the actual differential treatment given to people of different skin shades). 146 desire for whiteness vol. 2:1 the legal framework in india should be sensitive to this difference, and “color” should feature as a separate ground of discrimination. a question for future research is whether, even if color is included as a ground of discrimination, it will be able to address the occurrence of colorism in institutions, particularly in social institutions such as in the indian arranged marriage market. the challenge will be for prospective aggrieved parties to prove such a claim in a court of law, given the inherent subjectivity of skin color. the law should address the inherent reason behind the existence of colorism, i.e. the desire for whiteness, rather than simply include color as a ground of discrimination. it is only when colorism is addressed in this holistic sense, encompassing discrimination in the social settings in which it is embedded, can the problem of colorism be resolved. the law must enable victims of colorism to establish claims of discrimination. merely including “color” as a ground of discrimination in article 15 of the constitution of india will not be sufficient to enable such claims. to succeed, claimants will need to rely on the limited jurisprudence of article 15 and the largesse of the court for success. a statute that addresses the complexities of colorism and its manifestation in society will be more successful in uprooting colorism. a law on colorism must consider the issue of skin color discrimination in india more comprehensively rather than through the generic provisions of article 15. in framing a law on colorism, india should look to the american experience under title vii of the civil rights act of 1964.193 for instance, united states courts have ruled that people bringing color-based claims must also be a member of a group that has been discriminated against in american history.194 accordingly, a person of pakistani origin was not allowed to bring such a claim.195 it is interesting to note that, in the united sates, a majority of the colorism claims have been brought by south asians.196 does this mean that there is more colorist prejudice against south asians, or is it that south asians are more conscious of colorism? angela harris states that the united states government actively regulates race but only passively regulates color.197 few claims have been brought in american courts solely on the ground of color. more often, claims of colorism are conflated with race or national origin.198 the reason for this may be that colorism still needs to establish itself as a legitimate and sufficient ground of discrimination. another interesting point to note from the american experience is that, contrary to expectations, not all plaintiffs bringing claims are dark-skinned. some claims have been brought by light-skinned plaintiffs alleging discrimination towards them by dark-skinned people.199 the reasons for this kind of retaliatory action can be an interesting point for future research. further, it will be interesting to see if such cases already exist in india, and if so, whether a law on colorism will bring them to light. indian legislators should keep in mind that title vii solely addresses employment discrimination claims, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 193 “title vii’s protections against color discrimination prohibit an employer from making detrimental employment decisions based on the immutable characteristics of color.” nance, supra note 30, at 460. 194 nance, supra note 30, at 459–60. 195 “the court recognized that ‘the literal language of the statute which prohibits discrimination on the basis of “color” would seem to apply to ali’s claim,’ but stated that ‘the testimony regarding skin color variations among the peoples of pakistan does not suffice to merit the division of pakistanis into distinct “protected classes” according to color.’” id. at 458–59. 196 id. at 474. 197 harris, supra note 31, at 4. 198 nance, supra note 30, at 471. 199 id. at 465. 2012 columbia journal of race and law 147 whereas a similarly confined law in india will cover only a small proportion of existing instances of colorism. it is unlikely that a court in the united states will allow colorism claims brought by indians against each other. an american court has previously rejected a colorism claim brought by a pakistani against a fellow countryman.200 the court seemed reluctant to uphold the existence of colorism based on the testimony regarding skin color variations in pakistan.201 indian courts may find it equally hard based on the history of colorism in india detailed previously in this paper to justify the division of indians into “protected classes” based on color.202 this may be because there is no direct evidence in indian or pakistani history that may suggest the consistent subjugation of a particular group by another over time, based on color. vi. conclusion this article finds that colorism is manifested in complex forms in society and that the existing economic theories of racism are unable to rationalize it. the only theory that is able to explain the desire for whiteness is the theory of status production.203 however, the constraints in the construction of this theory restrain its ability to satisfactorily explain colorism. while status creation may be an objective of colorism, the theory does not satisfactorily explain how status production, in the manner described by mcadams, may be the means to that end. the idea of status as an end result of racism and colorism is compelling and resonates globally. thus, it is worth exploring whether other means of status production would achieve the same result. perhaps this theory could draw upon the more universal history of colonial domination outlined in this paper, rather than that of the jim crow south, for its explanation of racism. nevertheless, the theory of status production may be most useful to us in understanding colorism, particularly because it makes a strong argument for considering colorism as a by-product of racism. the primary distinction between colorism and racism is that unlike colorism, skin color is not the sole basis for discriminatory classifications in racism. this distinction is the chief reason for the inability of the theories of racism to explain colorism. interestingly, however, the theory of statistical discrimination provides a neat explanation of colorism in the indian arranged marriage market. this is probably because distinctions are made in india based solely on minute differences in skin tone. consequently, discrimination occurs according to a gradient that follows complexion differences. membership of a group may not be significant for discrimination to be statistically induced in such a situation. by comparing colorism in the united states and india, this article produces a universal account of colorism. it establishes the domination of skin color in discriminatory decision making. regardless of its form, the role of racism in constituting colorism cannot be overlooked. in the united states, color is often not the sole basis for discrimination. two questions emerge that may warrant further study. in comparison, can colorism be more widespread in india? what explains the persistence of colorism in india’s predominantly racially homogenous society? !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 200 id. at 458–59 (citing ali v. nat’l bank of pakistan, 508 f. supp. 611 (s.d.n.y. 1981)). 201 id. at 458. 202 id. at 458–59. 203 see generally mcadams, supra note 8. crane final formatted 2013 columbia journal of race and law 73 checking out of the exception to 3-104: why parties should be able to negotiate whether checks should be payable on demand linda r. crane* many aspects of american society, including its legal system, operate to the disadvantage of minorities. obvious examples include inequities in our criminal justice system and in school funding. much has been written on those and other topics. this article focuses on another example, specifically on how a sweeping change to an obscure banking rule regulating the check collection process has negatively affected consumers in general, and minority groups in particular. u.s. check collections require a complex system comprised of a variety of institutions including commercial banks, savings and loans, savings banks, and credit unions, as well as the customers who rely upon them to collect payments from far and near. traditionally, the check collection process, including the timing rules under u.c.c. article four, was inherently cumbersome and slow to honor the payee’s right to receive immediate payment of funds from the paying bank. frustration among payees, which grew due to not having their funds available fast enough because of delays that were inherent within the system, led lawmakers and others to reform the check collection timing rules.. it has now been more than twenty years since congress passed the expedited funds availability act (efaa), which empowered the federal reserve board of governors to regulate the speed with which commercial banks are required to make funds available to depositors after their checks were deposited for collection. there is evidence, however, that these reforms have had an negative impact on checking account customers as a whole, but in particular, a disproportionate impact on minority communities. specifically, by reducing the maximum amount of waiting time between the date of deposit and the date when funds are available to deposit customers, the reforms also reduced the time that the funds were available to the check-issuing consumer. thus, in every checking transaction, checking account customers lost the benefit of the float that was built into every transaction under the traditional u.c.c. rules. it is my thesis, therefore, that recent reforms in the timing rules that regulate the speed of the check collection process have indeed reduced the wait time for funds to be available, but have also resulted in increases in the appetite for various risky cash management alternatives by consumers to obtain the money that under old timing rules would stay in their deposit accounts for a longer period. put another * professor of law, the john marshall law school, chicago, illinois. northwestern university, j.d. /m.b.a. to the following people and institutions: the john marshall law school faculty scholarship research grant; the midwest people of color legal scholarship conference, inc.; the society of american law schools; my colleagues, prof. kevin l. hopkins (john marshall), prof. linda s. greene (wisconsin-madison),; my research assistants, in yung yi, christopher ehresman, jeffrey gaster, stephanie day and the student editors of the columbia journal of race and law. 74 checking out the exception to 3-104 vol. 3:1 way, consumers who issued checks liked float, too! to address this problem, i will propose two recommendations that can provide a remedy for consumers, at their option. first, that the definition of “check” should be changed under both state and federal commercial law to remove the limitation that all checks are due on demand. second, i propose that the federal check collection timing rules should be amended to require banks to honor checks that are payable on a definite due date just as they honor those that are payable on demand. i. introduction………………………………………………………….... 75 ii. overview of pre-reform system of check collections, including midnight deadline timing rule……………….. 75 iii. federal intervention and reform initiatives………….. 78 a. the expedited funds availability act and regulation cc…………. 79 b. check 21……………………………………………………………….. 80 c. the regulation cc/check 21 interface……………………………… 81 iv. consequences of federal regulatory reform…………. 83 a. payday loans………………………………………………………….. 85 1. a short history of payday lending………………………….. 85 2. the disproportionate impact of payday lending on minority communities……………………………………….. 89 3. payday lending and bankruptcy……………………………. 90 b. credit cards…………………………………………………………… 92 c. home equity lines of credit (helocs)…………………………… 94 v. two recommendations……………………………………………… 95 a. the statutory definitions of “check” under both state u.c.c. law and regulation cc should be amended to remove the requirement that they are payable on “demand”……………….. 95 b. regulation cc should require banks to offer checking customers a new check with a future due date and that can be deposited when issued but not payable until due…………… 96 vi. potential objections………………………………………………... 96 a. the “redundancy” objection……………………………………….. 97 b. the “implementation” objection…………………………………… 97 c. general business objections………………………………………… 98 vii. summary and conclusion………………………………………….. 98 2013 columbia journal of race and law 75 i. introduction this article is organized as follows: part ii provides an overview of the check collections systems under the uniform commercial code (u.c.c.) as well as the pre-reform timing of payment issues that persisted under the midnight deadline rules. part iii provides an overview and description of the characteristics of the new federal regulations that have been added to augment the state regulations. particularly with respect to the new timing rules, it also provides a comparison of the operation of new timing rules to that of the traditional timing rules. part iv describes the changes in consumer behavior since the federal reforms went into effect, and posits that data revealing a dramatic increase in risky behavior by consumers, specifically and disproportionately among minority groups, show a connection between these behaviors and the reform of the check collection timing rules. part v contains two recommendations that provide a solution to the problems that the regulatory reforms have caused consumers. the first recommendation is that both the u.c.c. and regulation cc’s statutory definition of “check” should be amended to allow bank drafts to be treated like all other negotiable instruments, which are able to be payable either at a definite time or on demand—at the option of the parties at the time of the transaction. the second recommendation is for bank regulators to require banks to honor presentations of checks that are not payable on demand on the definite date in the future when they become due and payable. part vi provides a brief rebuttal to some potential objections that may be raised in response to the recommendations made in section v. part vii is a brief summary and conclusion. ii. overview of pre-reform system of check collections, including midnight deadline timing rule article 3 of the u.c.c. governs the rights and obligations of parties to negotiable instruments. its provisions require that the transfer of checks occur using a special form of transfer called “negotiation” through which the transferee becomes a “holder” and, therefore, is entitled to enforce it.1 under u.c.c. article 3, negotiable instruments fall into two broad categories: notes,2 which are always two-party instruments,3 and drafts,4 which are always three-party instruments.5 the definition of “negotiable instrument, u.c.c. 3-104, allows parties to decide whether their instruments will be payable immediately (demand instruments) or at a definite date in the future (time instruments)6. notes and drafts can be issued without involving a bank as one of the parties. if, however, a bank is a party to a three party draft, it becomes a “check”7 as defined by 3-104(f). 1 u.c.c. §§ 3-201, 3-301 (amended 2002). 2 see generally u.c.c. §§ 3-104(a), 3-103(a)(8), 3-103(a)(12) (amended 2002). 3 the parties to notes are referred as the “maker” and “payee.” 4 see generally u.c.c. §§ 3-104(a), 3-103(a)(8), 3-103(a)(12) (amended 2002). 5 drawer, payee, drawee/paying bank or paying bank under regulation cc 12 c.f.r. § 229.2. 6 see u.c.c. § 3-104(f) (amended 2002). 7 the terms "checks," "negotiable bank drafts," and "items" are all used interchangeably through the relevant state and federal regulations and this article. 76 checking out the exception to 3-104 vol. 3:1 in addition to defining “check” as “a draft drawn on a bank,” article 3 also defines “check” as “payable on demand.”8 thus, while the u.c.c. provides parties to notes and drafts broad flexibility to, choose the precise date when they will be payable, parties to checks are denied this ability.9 applicable reforms at the federal level, referred to colloquially as “reg. cc,” define “check” in a similar manner as “a negotiable demand draft drawn on or payable through . . . a bank . . . .”10 somewhat perversely, it is because checks are 3-party instruments that it is so difficult—arguably logistically impossible—to pay them immediately upon demand. this is because all three parties to a check have interests that must be balanced—and that takes time—even after the check is presented to the drawer’s bank for payment. pre-reform rules under article 4 of the u.c.c. impose strict timing rules for check collection once an item is deposited for collection. among other things, these pre-reform rules required payment to occur within a limited amount of time after the check was presented for payment.11 during the collection process any bank in the chain of collection has up to two days before it must forward the check to the next bank in the collection chain. this timing of collection and of payment rule is called the “midnight deadline rule.” specifically, a bank’s “midnight deadline” is defined as “midnight of the banking day following the banking day of receipt.”12 under article 4, each bank that touches a check during the collections process has a separate midnight deadline.13 that means that every person entitled to enforce the check must wait up to two days, multiplied by the total number of banks involved in the process. of course, under article 4 the actual demand for payment does not occur until the check reached the only bank that could make the payment decision—the paying bank. once the check finally reaches its ultimate destination, the paying bank is actually allowed to await the expiration of two different midnight deadlines prior to becoming legally accountable for the amount of the item. first, the paying bank has until midnight of the day of receipt to decide whether to give provisional and revocable credit for the check. second, if the paying bank gives provisional credit for the check before midnight of the first banking day on which it receives the check for payment, then the u.c.c. extends the deadline by which the paying bank must make a final decision to either pay or to dishonor the check to midnight of the next banking day. remarkably, it is not until the expiration of the paying bank’s second midnight deadline that it must make a final decision to pay or to dishonor the item at which time it will either be finally paid or notice of dishonor will be sent to the depositary bank.14 8 id. 9 id. (distinguishing “checks” as a special subset of drafts payable on demand and drawn on a bank). u.c.c. § 1104 (amended 2002) allows parties to vary this default rule by agreement, but there is no evidence that banks include such a waiver in their customer agreements, nor that they honor such items. 10 see regulation cc, 12 c.f.r. § 229.2(k) (2012). recent events are of importance here. one of my proposals is to redefine the definition of check to allow consumers to choose the date when the check will become payable. see infra section v(a) and accompanying footnotes. after the passage of dodd-frank, that task is not so simple as merely petitioning the federal reserve. see dodd-frank wall street reform and consumer protection act, 124 stat. 1376, public law 111-203, §§ 1011, 1022 (establishing bureau of consumer financial protection and giving it rulemaking power over federal consumer financial law). 11 u.c.c. §§ 4-203, 4-301 (amended 2002). 12 id. § 4-103(a)(10). 13 id. §§ 4-203, 4-302. 14 id. § 4-202. 2013 columbia journal of race and law 77 the “midnight deadline” rule, taken alone, provides no incentives for the collecting banks to take action before the expiration of their midnight deadline.15 this is only slightly less true for the paying bank—which is not technically a collecting bank.16 the paying bank faces the daunting risk of becoming accountable for the amount of the item if it has not completed its process for determining whether the item is properly payable from its customer’s account prior to the expiration of its midnight deadlines.17 collecting banks (including the depositary bank, any intermediary banks, and the presenting bank), however, are only liable for their negligence, if any, for failing to meet their midnight deadlines.18 under u.c.c. rules, for the depositor awaiting receipt of the collected funds, the midnight deadline clock does not begin to run until the check is actually presented to the paying bank when the demand for payment officially occurred. as an example, the following is an illustration of a short check collection involving two intermediary collecting banks on opposite coasts. the length of the wait for the payment decision depended on how many banks were involved in the collection, but could generally be reduced to the formula 2x = d, where x is the number of collecting banks and d is the number of days the payee must wait for payment. the paying bank will generally have two days instead of one because the rule that they must make a final payment decision by midnight of the banking day of receipt is extended until their real midnight deadline if they give provisional credit on that day. thus, in a transaction involving a depositary bank, a paying bank, and two federal reserve bank branches on opposite coasts as well as an additional intermediary bank on either coast, the average length of time that elapsed between the date of deposit and the date of expiration of the drawee’s midnight deadline under article 4 was usually more than ten days.19 historically, the u.c.c. required privity among the parties to a check, including all of the banks involved in the collection and payment process. this requirement, in conjunction with the liberal midnight deadline timing of payment rule, complicated the relationships among the collecting and paying banks, and added more time to the already cumbersome collections process. consequently, despite the fact that checks are demand instruments, because of the logistics of the national bank check collections system, they were never capable of being paid immediately—neither as a practical matter nor under the applicable u.c.c. rules. the problems caused by this slow process were not limited to their effects on consumers. the old check collection rules also produced problems associated with a financial concept called “float.” in general, float results when a bank is credited with funds before they are disbursed from a payee’s account. one specific consequence of bank float that concerned the federal reserve bank governing board is that the funds associated with checks in the collections system were being accounted for in the accounts of multiple banks, simultaneously. this is due to the banking industry’s practice of booking provisional (temporary revocable) credit for checks on the presumption that they will be honored when presented to the paying bank for payment. this approach, through which the banks account for the value of checks while they move through the collection process, while efficient from an accounting entry viewpoint, created a problematic inflationary impact insofar as it distorted the actual balances of money on deposit throughout the u.s. monetary system at any given moment. this type of float results from the fact that funds behind each check were concurrently reflected in the account balances of all of the banks (depositary, collecting, and paying) during the collection process. consequently, this float 15 id. 16 id. § 4-105(3)–(5). 17 u.c.c. §§ 4-301–4-302 (amended 2002). 18 id. §§ 4-105, 4-202, 4-203. 19 2 days x 5 banks = 10 days. 78 checking out the exception to 3-104 vol. 3:1 artificially inflates the size supply of money in the banking system20 and necessarily affects the federal reserve governing board's determination of monetary policy.21 this was the confluence of problems that the u.c.c. could not, or would not, address that eventually led to federal intervention by congress. consumer protection activists and the federal reserve governing board, for their respective reasons, sought reform of the check collection process in part out of frustration with the inaction of state legislatures and the national conference of commissioners on uniform state law, which had recently revised u.c.c. articles 3 and 4 extensively without changing the midnight deadline collection and payment timing rules. moreover, congress was becoming more engaged in consumer protection and was also aware of the fed’s increasing concern over the float in the monetary supply. however, it is important to keep in mind throughout the following sections that although congressional reforms of timing rules in the check collection process were justified and overdue, they were not done in a way that proved advantageous for all consumers. specifically, the loss of float time created destructive consequences for poor consumers, the majority of whom are members of minority groups. as will be explored later on in this article, this new reform resulted in a disproportionate increase of risky behaviors such as borrowing money using payday loans, credit cards, and helocs. these increases were not merely coincidental. historical data and social studies suggest that these industries purposefully targeted minority groups for exploitation. the financial devices in question frequently have significant financial costs. a typical payday loan, for instance, may end up costing the consumer hundreds if not thousands of dollars in excess of the loan principal. that is startling, given that a typical payday loan is for only a small amount of money. in the aggregate, these instruments drain millions of dollars from local communities, making economic and social advancement all the more difficult. iii. federal intervention and reform initiatives even though u.c.c. articles 3 and 4 were amended extensively in 1990, the timing of collection rules in the “revised articles” was not significantly revised.22 several state legislatures took steps during the 1980s to limit the length of hold periods, but the prevailing u.c.c. timing rules remained largely unchanged.23 most notably, the revised articles governing check collections retained the midnight deadline rules despite an ever increasing chorus of customer complaints about the length of their wait times for their funds to be available following deposits of checks for collection. in the absence of a meaningful state level response to the unacceptably long waits for funds availability, congress enacted two new statutes designed to speed up the check collection process and to expedite the availability of the depositor’s funds. first, in 1987 it passed the expedited funds availability 20 see float, fed. reserve bank of new york (april 2007), http://www.newyorkfed.org/aboutthefed/fedpoint/fed08.html (noting that “float is created when a reserve bank credits a bank for depositing a check but has not yet collected funds from the bank upon which the check is drawn. both banks now list the funds on their books, and they continue to do so until the check is presented and the reserve bank collects funds from the bank on which the check is drawn. as a result, both banks have use of the same funds for a short time.”). 21 see id. (noting that “although the amount of float is subject to random fluctuations, definite weekly and seasonal trends have been observed. the federal reserve bank of new york uses these float trends to forecast float levels. the forecasts are given to the open market desk, which implements the federal reserve's monetary policy. using these forecasts and other information, the open market desk buys and sells government securities daily, usually in an attempt to smooth fluctuations in the aggregate level of bank reserves.”). 22 william warren & steven walt, payments and credits 3 (foundation press 7th ed. 2007). 23 id. at 167. 2013 columbia journal of race and law 79 act (efaa).24 an important part of the efaa was its broad delegation of rulemaking authority to the federal reserve governing board. the fed first exercised this authority when it promulgated part 229 of the chapter 12 of the code of federal regulations (12 c.f.r. part 229) under the title “availability of funds and collection of checks (regulation cc).”25 the second statute, the check collections for the twenty first century act, commonly known as “check 21”, was passed in 2004 and has resulted in changes to the way banks can process checks and allows them to create substitute checks using image technology. these additional rules have been added to regulation cc. a. the expedited funds availability act and regulation cc regulation cc was the first of two recent major reforms in the national bank check collection system in the united states. regulation cc’s primary focus was to impose shorter time limitations within which depositary banks were required to make funds available to their checking account customers “as a matter of right.”26 to accomplish this, regulation cc shifted the focus of the timing rules from counting the days after the demand is made to a paying bank, to focus on the number of days after the deposit before which the depositary bank would become accountable. thus, regulation cc shifted the liability for speeding up the timely payments away from the last bank in the process—the paying banks—and shifted the burden onto the first bank in the process—the depositary bank. henceforth, funds would be made available within a set number of days after the deposit, regardless of how many intermediary banks were involved in the presentation of the check to the paying bank.27 as a result, regulation cc required banks to dramatically speed up the release of funds to depositors and the return processes.28 in this respect, the act protected consumers from excessive delays in payment and helped relieve the problem of holdover float. under the federal law, the speed with which depositary banks must make funds from deposits available to its account holders is determined by an availability schedule that changes depending on the nature of the deposit and withdrawal.29 significantly, regulation cc’s permanent availability schedule does not eliminate the midnight deadline rules. consequently, both sets of timing rules continue to co 24 the expedited funds availability act, 12 u.s.c. §§ 4001–4010 (1987). 25 id. the efaa is found under title iv of the competitive equality banking act of 1987. the act was enacted on august 10, 1987 and was previously known as section 601 of title vi of the act of august 10, 1987. 26 see 12 c.f.r. § 229.1(b)(2)–(3)(2012). section 229.1(b)(2) states: “subpart b of this part contains rules regarding the duty of banks to make funds deposited into accounts available for withdrawals, including availability schedules, disclosure of funds availability policies, payment of interest, liability of banks for failure to comply with subpart b of this part, and other matters.” along the same lines, section 229.1(b)(3) states: “subpart c of this part contains rules to expedite the collection and return of checks by banks. these rules cover the direct return of checks, the manner in which the paying bank and the returning banks must return checks to the depositary bank, notification of nonpayment by the paying bank, endorsement and presentment of check, same-day settlement for certain check, the liability of banks for failure to comply with subpart c of this part, and other matters.” 27 12 c.f.r. § 229 (2012). 28 warren & walt, supra note 22, at 169. 29 see appendix b for a chart of the availability schedules. the availability has numerous exemptions that allow the depositary banks to delay fund withdrawal. the situations include: new accounts where the account is open for thirty days or less; large deposits where deposits that aggregate more than $5,000 on one banking day; re-deposited checks where checks have been dishonored and a redeposit is attempted; repeated overdrafts where customer accounts are “repeatedly overdrawn”; “reasonable cause to doubt collectability” where “the depositary bank has reasonable cause to believe that the check is uncollectible”; emergency conditions where emergency conditions exist “beyond the control of the depositary bank, if the depositary bank exercises such diligence as the circumstances require”; “notice of exception” where notice is given to the customer at the time of deposit; “length of delay due to exceptions” where the bank can delay availability for “a reasonable period of time” of up to five business days for local checks and six days for non-local checks. see 12 c.f.r. § 229.13 (2012). 80 checking out the exception to 3-104 vol. 3:1 exist.30 to co-exist, banks can continue to collect checks using the interbank collections process and are allowed to make a decision about whether to honor a presentment before the expiration of the paying bank’s midnight deadline as long as they also do so before the depositary bank must make the funds available to the depositor in compliance with regulation cc’s availability schedule. b. check 21 in 2004, more than fifteen years after the passage of the efaa, the second of the two major reforms was passed by congress under the name, the check collection for the twenty-first century act, commonly known as “check 21.” among other things, check 21 empowered the fed to promulgate regulations to achieve its goals. the fed did so by adding new provisions to regulation cc.31 check 21 continued to speed up the check collection process by removing two impediments that were unaddressed by the first set of regulation cc’s provisions. first, check 21 ushered in the demise of the requirement of privity among the collecting and paying banks. this allowed the depositary bank to present checks to the paying bank directly regardless of whether they were parties to a separate bankcustomer relationship. second, check 21 created the innovation of the “substitute check.” prior to check 21, each bank that was negotiating checks in the collections process was still required to have privity with the next collecting bank in the chain. moreover, article 3 negotiation required each bank to become a holder in its own right, entailing physical delivery of the original check each time it was transferred throughout the collection process through the time of its presentment for payment to the paying bank.32 truncation was not allowed and electronic versions were allowed only under special arrangements.33 check 21, however, allows depositary banks to convert an original check into a substitute check. substitute checks can travel through the check-collection system in place of the original paper check— but they are still paper checks!34 the substitute check must be a paper reproduction of the original check that contains an image of the front and the back of the original paper check.35 the substitute check is now the legal equivalent of the original check as long as it accurately depicts the front and the back of the check.36 substitute checks remain subject to u.c.c. articles 1, 3, and 4, and other state law along with applicable federal law.37 there is a widely believed misconception that check 21 actually requires check truncation and the creation of a new substitute check. it does not. rather, it provides a structure within which banks have the option of making speedier presentments by removing legal and logistical impediments, such as 30 id.; see also warren & walt, supra note 22, at 168. 31 even though this article criticizes the reforms for certain failures, it agrees that they were necessary and overdue. the article is neither opposed to the movement to reform the check collection timing rules nor to the changes that they were intended to usher into place. they were overdue given the availability of technology capable of speeding up the process. they were necessary because banks had little or no incentive to change the pace of collections under the u.c.c. midnight deadline rules. there are, however, very serious, presumably unintended, consequences that can be traced to the new rules. 32 u.c.c. § 3-201 (amended 2002). 33 andrea mcglinn, book note, check clearing for the 21st century act: the impact on consumers, 9 n.c. banking inst. 179, 180 (2005). 34 check 21 implementation video, electronic check clearing house organization, http://www.eccho.org/history_video (last visited dec. 2, 2012). 35 carl felsenfeld & genci bilali, the check clearing for the 21st century act—a wrong turn in the road to improvement of the u.s. payments system, 85 neb. l. rev. 52, 84 (2006). 36 see mcglinn, supra note 33, at 181. 37 id. 2013 columbia journal of race and law 81 privity of contract among collecting banks and/or transporting the original check across long distances for collection. it simply places another arrow in the quiver of banks as they navigate the choppy waters between state and federal check collection timing rules. check 21 gives collecting banks the opportunity to decide whether to take advantage of the federal regulations or not, depending upon their respective analyses of the associated costs and benefits.38 one option still available is for banks to keep processing checks by negotiating them through the slow interbank collection system if they wish. what depositary banks must do, however, is make funds available to its customers whether or not the paying bank’s midnight deadline has expired. when a substitute check is created it is still in paper form and is still an article 3 negotiable instrument. check 21 does not require banks to deal with each other directly nor to create substitute checks. banks can continue to just operate as they did under regulation cc and article 4 using the movement of the original paper check through the process that they want or they can use the check substitution. c. the regulation cc/check 21 interface the purpose of the new regulations was to meet the congressional objective of adding improvements to the check collection system by expediting the availability of funds for checking account customers and to ease the way for banks to use diligence to remove impediments to their ability to process and to pay remote collection items.39 by making the depositary bank responsible, instead of the paying bank, the efaa places the emphasis on the bank that actually controls whether or not the funds are actually made “available” to the depositor—the depositary bank. this highlights the greatest difference in emphasis between the efaa and the u.c.c., which otherwise overlap in various respects: the efaa limits the time that the depositary bank has to make the decision to allow withdrawal of funds by the person entitled to enforce the instrument, whereas the u.c.c. limits the time the paying bank has to make the payment decision based on whether the item is properly payable by the person who issued it. by speeding up the process, however, the efaa exposes depositary banks to losses they did not face under the traditional midnight deadline regime. specifically, banks now have much less time to make an informed decision about whether or not to allow customers to withdraw funds from check deposits. that fact increases the chances that funds associated with a check that has been dishonored will already have been released by a depositary bank before it receives notice of dishonor from the paying bank. there were good reasons for congress to reform of the check collection system. along with the entrance of congressional intervention has been a steady increase of the fed’s influence in the area of commercial regulation. the fed, in fact, has been empowered by congress to draft the regulations to accompany the new federal statutes governing check collections, beginning with reg. cc, and continuing with check 21 as well as its 2010 amendments.40 one of the most interesting aspects of the federal movement to reform the check collection system is that it has not abolished the midnight deadline rules of articles 3 and 4 of the u.c.c. rather, the u.c.c. (which has also been revised extensively and often) has been allowed to co-exist with new federal regulations despite the fact that the u.c.c. and federal reforms contain dramatically different and 38 felsenfeld & bilali, supra note 35, at 91–92. 39 12 u.s.c. § 5001 (2006). 40 in fact, the fed actually took the initiative to actually draft check 21 and sent it to congress, which apparently rubber-stamped it. 82 checking out the exception to 3-104 vol. 3:1 potentially inconsistent timing rules. of course, the federal regulations trump state law and must be followed by banks whether or not they continue to satisfy the u.c.c. timing rules.41 moreover, there is great possibility for additional reform as technology improves because it will become more feasible to virtually make checks payable “on demand” as still required by both state and federal definitions. the reforms that sped up the availability of funds following a deposit of a check are best understood in context, that of a buyer/consumer who uses a check to pay for a purchase of valuable goods or services from a seller who is willing to wait a brief period to collect the funds from the buyer’s bank. the focus of the reformers was primarily on the seller’s demand rights in the instrument. of course, it is the seller in the underlying commercial transaction who is entitled to payment and who has agreed to take a check as a substitute for money with the understanding that the buyer has sufficient funds on deposit at its bank at the time when the check was issued. the second party to the three-party bank check is the buyer or consumer in the underlying commercial transaction who issued the check as payment. traditionally, rightly or wrongly, the buyer developed a reasonable expectation that there would be some delay before the money would be debited against the account from which the check was issued. not only did these consumers expect a delay in payment, they perceived benefits from the delay, including continued earning of interest during the delay period, and continued use of funds.42 regulation cc and check 21 successfully reduced bank float and expedited the availability of funds to sellers. however, in a significant oversight, the regulators failed to consider the impact of the reform rules on consumers who were accustomed to using checks to pay for their purchases. the result was that low-income and minority consumers were left scrambling for alternative cash management strategies.43 41 the mid-1950s until 1990 used u.c.c. article 4 and the midnight deadline rules. from 1990 to 2004, we have had the efaa and regulation cc. from 2004 to the present we have had the check 21 act. 42 jeffrey m. lacker, the check float puzzle, 83 fed. reserve bank of richmond econ. q. 1, 1–25 (1997). 43 see the color of debt: credit card debt by race and ethnicity, demos, http://www.demos.org/sites/default/files/publications/factsheet_thecolorofdebt_demos.pdf (last visited nov. 25, 2012) (noting that in 2007, thirty-nine percent of minority consumers used credit cards “to pay for basic expenses” such as “rent, mortgage payments, groceries, utilities or insurance because they did not have enough money in their checking or savings account”); see also the plastic safety net: findings from the 2012 national survey on credit card debt of low and middle income households, demos, http://www.demos.org/sites/default/files/publications/plasticsafetynetdemos.pdf (last visited nov. 25, 2012) (“nearly half of young adults and forty-five percent of households earning less than $50,000 per year used credit cards to pay basic monthly costs like groceries and rent. fifty-two percent of households with members lacking health insurance paid for necessities with credit cards.”). by contrast, fifty-four percent of all households surveyed in a 2007 study reported using checks to cover basic month-to-month expenses. see pew research ctr., what americans pay for—and how (2007). this information lends itself to the inference that less lower-income and minority consumers are using checks for their daily expenses. moreover, the fact that lowincome and minority consumers made the switch is not an accident. over forty percent of households which relied on credit card debt for basic daily expenses such as rent did so because their checking accounts did not provide a sufficient financial cushion. see demos, plastic safety net. a survey of payday loan users in texas turned up similar results regarding the type of expenses that the loans were used for. see short-term cash, long-term debt, texas appleseed, 9–12 (apr. 2009), http://www.caction.org/can-research/reports/2009/short-termcashlong-termdebt.pdf (“the majority of respondents need credit to cover basic recurring expenses, such as bills, food and rent, or mortgage payments.”); see also pew research ctr., who borrows, where they borrow, and why (2012) (2012 survey of consumers finding that sixty-nine percent used payday loans to cover recurring household expenses). in one survey, respondents’ answers were particularly revealing. the respondents, explaining how they used payday loans for recurring expenses, stated: male borrower, chicago: 2013 columbia journal of race and law 83 iv. consequences of federal regulatory reform although it was undoubtedly prudent for the fed to take steps to reduce the inflationary effect that the traditional checking system had on the monetary system, in so doing it triggered a concomitant negative economic impact on consumers.44 there were, in fact, some fears expressed prior to the passage “just need to get to the next paycheck. and i need, you know, either pay the bill to keep the lights on, or need some food, or whatever it is.” female borrower, san francisco: “if i have bills to pay, or say i need food on the table, i am going.” male borrower, san francisco: “well, i was a little short and was thinking i could use some more money and i was at the atm actually, and it was there, offering me a direct deposit advance. so, i thought i would try it.” 44 see fed. reserve bank of new york, float, supra note 20. the federal reserve bank of new york described the float problem as follows: for several reasons, float increased sharply in the 1970s. one was that the volume of checks processed by the federal reserve doubled during the decade, increasing holdover float. also, high inflation meant that the average dollar amount of check increased. finally, high inflation, coupled with high interest rates, provided an incentive for large companies to draw funds from far-away banks to try to benefit from transportation float. the practice of drawing funds from far-away banks was known as "remote disbursement." the federal reserve took action in 1973 to reduce transportation float by establishing new regional check-processing facilities throughout the federal reserve system. in addition, efficiency in the use of air charter service was improved. these measures helped reduce float from a daily average of $2.7 billion in 1973 to a daily average of $2.1 billion in 1975. however, between 1975 and 1979, float more than tripled (in nominal terms) to a daily average of $6.6 billion, an all-time high. the board of governors of the federal reserve system believed that transportation float caused by remote disbursement had become a serious problem, and issued a policy statement in early 1979 to discourage the practice. as part of the monetary control act of 1980s, the federal reserve system was instructed to charge banks for float. as a result of this legislation and greatly improved check processing efficiency, float was reduced to a daily average of $2.5 billion in 1982, down about 60 percent (in nominal terms) from the 1979 level. to reduce float further, the federal reserve implemented procedural changes in the 1980s. among these changes was the establishment of a nationwide noon-presentment policy in 1983 that allowed later delivery of checks to banks in cities with federal reserve check-processing offices. this policy also applied to high-volume institutions in more remote areas that had access to regional check processing centers. these actions significantly increased the number of checks that could be collected overnight, speeding the clearing process and reducing float. by 1985, float was reduced to a daily average of $820 million, down almost 90 percent from its 1979 level. the amount of float averaged $860 million through the rest of the 1980s. developments in the 1990s in the 1990s, float has decreased further. one reason is that fewer paper checks are being sent to the federal reserve, reducing holdover float. the number of checks processed by the federal reserve decreased from 19 to 15.5 billion between 1993 and 1995. the number of checks processed in the united states continues to decrease, due largely to the rapid growth in electronic payments. for example, many employers now offer direct deposit of paychecks to their employees, speeding payment and reducing float. also, the federal reserve has been installing new technology since the 1980s to reduce transportation float. instead of having their accounts debited upon the physical return of checks, paying banks have the option of having their checks scanned and converted into electronic presentments at the federal reserve. the electronic presentments are transmitted from the federal reserve to the paying banks, and accounts are debited more quickly. the federal reserve is 84 checking out the exception to 3-104 vol. 3:1 of check 21 about the potential dangers that it would pose for consumers.45 one such fear was that the loss of float would result in more returned checks and thus more overdraft fees. it was estimated that by mid-2005, consumers could be bouncing seven million more checks and paying $170 million more in fees.46 a survey suggested eight percent of consumers wrote checks “because they like the float.”47 this data suggested that consumers liked float just as much as the banks did. the recent growth in risky behavior among consumers is confirmation of the dangers associated with the loss of float that was in the system prior to the enactment of check 21 and the regulation cc. news coverage during the economic downturn beginning in 2008 brings this mind as much has been made in the media of the dramatic increases in unaffordable mortgage debt, payday loans, and other high risk behaviors that consumers have been undertaking. the primary thesis of this article is that many of these risky behaviors are the result of regulation cc. upon losing the time previously built into the cumbersome and slow check collection process, consumers—especially those who had fewer viable alternatives—began seeking alternative sources of cash to address the impact of the loss of check transaction float on their ability to manage their scarce cash resources. these alternative sources are more expensive and thus detrimental to poor minority consumers eliminating the relative windfall they enjoyed as a result of the “transaction” float that was built into the old system. there is little doubt that the primary motive for federal pre-emption of traditional state governance of the check collection process was, at some level, to protect consumers.48 but the reforms are problematic because they addressed a problem by using an approach that failed to anticipate the pressure they would place on consumers to seek alternative ways to manage their cash. in particular, the reforms reflect an apparent failure on the part of both congress and the federal reserve governing board to fully consider all of the implications of speeding up the check collection timing rules. certainly, there is no evidence that any affirmative steps were taken by either congress or the fed to more completely protect consumers with easy access to a mainstream alternative to replace the old slow-to-be-collected check. consumers prefer and need a check that is collected more slowly than their traditional demand instruments are currently being collected under the new, faster availability schedules. by removing all float, the federal regulators left consumers to their own devices to replace the element of time they once enjoyed under the old timing rules—and upon which they had heavily relied in their cash management calculus. since the enactment of regulation cc and the expedited availability schedules, consumers facing shrinking windows of time during which they can obtain funds to cover their checks have turned to three main alternative cash management sources: payday loans, credit cards, continuing to investigate and implement new methods to speed the check-clearing process. as a result, float averaged only $774 million in 2000, and it will likely decrease even further as technology advances. 45 paul katzeff, bank “float” is set to fade-out, investor's bus. daily, oct. 11, 2004, at a14; mcglinn, supra note 34, at 179; see generally mark e. budnitz, the check 21 challenge: will banks take advantage of consumers, 58 consumer fin. l.q. rep. 369 (2004). 46 see “check 21” law benefits banks but will mean more bounced checks & fees for consumers, consumers union (aug. 24, 2004), http://www.consumersunion.org/pub/core_financial_services/001332.html. 47 see mcglinn, supra note 33, at 194. 48 see frequently asked questions about check 21, fed. reserve board of governors, www.federalreserve.gov/paymentsystems/check21_faq.htm# (last updated may 1, 2012). 2013 columbia journal of race and law 85 and helocs. all of these alternatives were more expensive than their checks and deleterious to the economic well-being of the poorest, most vulnerable of all checking account customers. timeline data seem to indicate a relationship, between the enactment of the first of these federal reforms and the increase in the appetite for risk by consumers and consumption for financial products that allow them to leverage their current income, and thus, to manage their cash in order to make small dollar purchases. one compelling example of the temporal connection between the reforms in check collection timing rules and increases in the amount of risk-laden behaviors by consumers to make small dollar amount purchases is to look at the significant growth of the payday loan industry in the u.s. since 1990—the year the efaa went into effect. there are also surprising data about the increasing use of credit card debt and home equity lines of credit (“helocs”) in the same period. a. payday loans the most insidious risky practice that consumers have turned to following the 1990 rule changes is the use of payday loans. much has been written about the payday loan industry in legal and economic journals, and newspapers since the mid-1990s. this scholarship falls into three main categories: articles that attempt to describe the industry itself, articles that discuss who payday loan customers are, and articles that try to propose solutions.49 my treatment of the payday lending industry proceeds in three steps: first, i provide a brief history of payday lending, including a discussion of lending practices and industry trends since 1990. second, i discuss how the payday lending industry has affected minority communities. finally, i discuss broadly the deceptive nature of payday loans. 1. a short history of payday lending the modern u.s. payday lending industry can trace its roots back to early twentieth century salary buyers,50 who offered to purchase someone’s paycheck in advance and for a discount.51 these salary buyers operated the early payday loan stores in order to meet the demand of a growing market of people, especially immigrants and migrants from rural to urban areas. their customers were typically poor working-class people who had current supplemental cash needs but who were unable to qualify for small dollar amount short-term loans from banks because they were considered too risky. the payday lending industry began growing exponentially in the 1980s. this expansion is attributable to two factors: deregulation of the banking industry and a lack of short-term loan providers. the impact of deregulation was that interest rate caps imposed on lenders were removed. the retraction of mainstream, short-term loans meant that fewer such loans were provided, forcing consumers to turn elsewhere to satisfy those 49 for a non-exhaustive list of articles providing treatment on the topic of payday lending, see, e.g., nathalie martin, 1,000% interest—good while supplies last: a study of payday loan practices and solutions, 52 ariz. l. rev. 563 (2010); chris giangreco, andrea kovach, & matt unrath, alternative small dollar loans: building the business case, 2 (2010), available at http://www.illinoisassetbuilding.org/sites/default/files/alt%20small%20dollar%20loans%20report%20v2.pdf; paige marti skiba & jeremy tobacman, do payday loans cause bankruptcy? (2009); mary spector, taming the beast: payday loans, regulatory efforts, and unintended consequences, 57 depaul l. rev. 961 (2008); ronald j. mann & jim hawkins, just until payday, 54 ucla l. rev. 855 (2007); steven m. graves & christopher l. peterson, predatory lending and the military: the law and geography of "payday" loans in military towns, 66 ohio st. l.j. 653 (2005); creola johnson, payday loans: shrewd business or predatory lending?, 87 minn. l. rev. 1 (2002). 50 one scholar has even traced the origins of the payday lending industry back to biblical times. see spector, supra note 49, at 969. interestingly, in the same passage, spector notes that since biblical times as well, efforts to regulate payday lending could be frustrated by intricately designed lending systems. see id. 51 aaron huckstep, payday lending: do outrageous prices necessarily mean outrageous profits?, 12 fordham j. corp. & fin. l. 203, 204 (2007). 86 checking out the exception to 3-104 vol. 3:1 financial needs.52 by the 1990s, numerous check cashing stores opened. these stores worked solely on cashing checks.53 the transition to lending against future checks was a natural next step for businesses that started out by cashing checks during better times.54 in a typical payday loan transaction, the borrower tenders a post-dated check and proof of employment to the lender for the amount of the loan, plus a fee.55 the lender then gives the borrower the loan amount, minus the amount of the fee.56 the lender will also generally agree to retain the check until the date when the borrower’s loan matures.57 this time period is generally fast approaching, typically falling on the borrower’s next payday.58 alternatively (and commonly), the borrower can choose to refinance the amount of the loan for an additional two weeks if the borrower pays a refinancing fee. the process for obtaining a payday loan is decidedly less rigorous than the application process for a loan from a mainstream financial institution. a payday loan applicant needs only to show that she has a bank account and that she is currently employed.59 in 1990, regulation cc went into effect and ushered in the new availability schedules that reduced, if not eliminated the float period for consumers when they issued checks. this new norm also meant that consumers were presented with a new dilemma. on the one hand, they could continue writing checks just as they had before the reforms were instituted. however, doing so carried the real risk of bouncing checks more frequently as they were presented for payment before the funds were on deposit to cover them, leading to high returned check fees, potential social stigma, inability to access other banking services due to being seen as a credit risk, and the long-term effects of a poor credit history.60 on the other hand, consumers could avoid the new fast checks by taking advantage of the ability to obtain cash by borrowing against their next paycheck through a new arrival on the cash management scene: the payday loan. historical data show that consumers overwhelmingly chose this new option over the option of writing checks and incurring the risks associated with returned checks. 52 id. at 205. 53 donald p. morgan & michael r. strain, federal reserve bank of new york, payday holiday: how households fare after payday credit bans 9 (2008), available at http://ssrn.com/abstract=1032621. 54 id. 55 see payday loans equal very costly cash: consumers urged to consider the alternatives, fed. trade commission (mar. 2008), http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt060.shtm. the typical size of a payday loan is between $200 and $300, plus whatever finance charge the lender applies. see consumer credit research foundation, the payday lending factbook 2 (dec. 2004). 56 see payday loans equal very costly cash, supra note 55. 57 id. 58 id. 59 see consumer credit research foundation, supra note 55 (“the borrower presents identification (typically two forms, one with a photograph), the most recent bank statement, and the latest pay stub; all are typically required to obtain a loan. . .”). 60 see, e.g., pew health trust, unbanked by choice: a look at how low-income los angeles households manage the money they earn 11 (2010) (finding forty-four percent of banking customers were charged late fee, and eighteen percent of low-income customers in economically distressed neighborhoods of los angeles incurred late fee charges on their checking accounts). a similar trend in credit card late fees and rate hikes resulting from late payments prompted a congressional response. see, e.g., the credit act: it’s working, demos, http://www.demos.org/sites/default/files/publications/credit%20card%20act%20successes%20-%20demos.pdf (last visited nov. 25, 2012). specifically, demos found that in 2008, fifty-two percent of credit card holders experienced a late fee, and fifty-three percent experienced a rate hike, as a result of missing a payment. id. in 2012, after passage of the card act, which required that card issuers wait at least twenty-one days after a delinquent payment before charging a late fee or exacting a rate hike, instances of consumers experiencing late fees and rate hikes fell to twentyeight and twenty-nine percent, respectively. id. 2013 columbia journal of race and law 87 the data referenced above is exclusively temporal, measuring the number of payday loan shops in existence after the check clearing reforms went into effect. following those reforms, the number of payday loan shops, and consumer demand for payday loans, experienced unprecedented growth.61 specifically, consumers have increasingly sought short-term bridge loans secured by their next paycheck as a way of meeting very short-term cash shortages needed to pay for routine household purchases. this rise in use of payday loans has closely tracked a corresponding decline in the use of checks.62 below is a chart illustrating this temporal data. payday lenders appear to have grasped what banks have not: that consumers enjoy and need a replacement for float in their short-term cash management options. further, as is common knowledge, the average american worker is customarily paid bi-weekly. this is close to the average length of time it traditionally would take to present and pay a check prior to the reforms. check use, which still remains the leading method of payment behind cash, has continued to decline while the number of payday stores increased by more than 4800% as of 1997 in the years following the introduction of reg. cc.63 from 61 see cpss–red book statistical update, bank for int’l settlements (apr. 2003) http://www.bis.org/publ/cpss54p2.pdf; cpss–red book statistical update, bank for int’l settlements (mar. 2008) http://www.bis.org/publ/cpss82p2.pdf; cpss–red book statistical update, bank for int’l settlements (sept. 2012) http://www.bis.org/publ/cpss104.pdf; profiting from poverty, nat’l people’s action (jan. 2012) http://www.npaus.org/files/profiting_from_poverty_npa_payday_loan_report_jan_2012_0.pdf; see also robin a. prager, determinants of locations of payday lenders, pawnshops, and check-cashing outlets, fed. reserve board (jun. 2009), http://www.federalreserve.gov/pubs/feds/2009/200933/200933pap.pdf. year total number of transactions by check (millions) payday loan stores (thousands) 1997 46,569.4 approximately 2000 1998 45169.7 approximately 5000 1999 43,812.1 approximately 6000 2000 42,500 approximately 8500 2001 41,222.6 approximately 12000 2002 38,821.2 approximately 14000 2003 37.281.9 approximately 20000 2004 35,040.4 approximately 21,000 2005 32,798.9 approximately 22000 2006 30,557.4 approximately 23,000 2007 27,955.4 approximately 24500 2008 26,054.2 approximately 24500 2009 24,464.9 approximately 23000 2010 22,838.6 approximately 19700 2011 21,276.9 approximately 20000 the decline in payday lending stores which began around 2007 is attributable in part to increased regulation of payday lending in some states. 62 there are very few alternatives to short term bridge loans. the examples commonly mentioned include pawn shops, loan sharks, and title loans. see charles a. bruch, taking the pay out of payday loans, 69 u. cin l. rev. 1257, 1268–69 (2001). in addition, the fdic has implemented a small-loan pilot program among thirty-one banks nationally. each of the banks agrees to make small loans and do not charge significant fees or interest. the borrower also has a longer amount of time to repay the loans up to three years. however, it is unclear whether or not this program will succeed in impacting payday lenders. a spokesperson for the payday loan industry notes that their customers are not likely to visit banks because “banks look down on our customers.” it was also noted that many low and moderate income customers do not use banks because of the way they are treated. see mark davis, banks test small-loan program, kansas city star, may 11, 2008, at d1. 63 federal reserve board, the 2007 federal reserve payments study (2007), available at http://www.frbservices.org/files/communications/pdf/research/2007_payments_study.pdf. 88 checking out the exception to 3-104 vol. 3:1 this, it appears that consumers have turned to payday loans as a favorite way to replace the cash management function of float. the role of the payday loan as a cash management tool as opposed to a typical loan is borne out by the data that show that most payday loan store customers are repeat borrowers, taking out eight to twelve loans per year.64 consumer dependence on payday lenders has been exacerbated by the fact that banks have been reluctant to enter into the small-short-term-loan business.65 this reluctance can be traced to three related concerns. first, there is a large concern over the profitability over offering relatively low-interest loans. many bank officials actually acknowledge that they believe offering payday loan-like products will be profitable only if they charge high interest rates. there are also concerns over the reputation of banks among a broad customer base if they become infected with the same taint that is attached to payday loans operators. a related concern is that offering a service similar to payday loans could come with tremendous amounts of criticism from “media, public policy officials, and consumer advocates.”66 it has been estimated that ten million households borrow from a payday store every year.67 examination of the demographics of payday loan users reveals the depth of the problems they cause. according to the demographic data, the typical payday loan customer is forty years old and earns between $30,000 and $40,000 annually. half of all customers have an average annual income of between $25,000 and $50,000.68 twenty percent have college diplomas and more than half have completed some college, and ninety-four percent have a high school diploma. even more troubling is the fact that payday loan customers are disproportionately drawn from politically and economically disadvantaged groups: racial minorities, women and military families who are deliberately targeted by payday loan operators.69 a 2011 study of the concentration of payday lending operations in several states found that in north carolina, three times as many payday lenders per capita are present in african american neighborhoods as in white neighborhoods. in the state of washington . . . they are twice as likely to be located in predominantly african american as white areas, and they also are concentrated in poverty zip codes. in california, they are eight times as concentrated in african american and latino neighborhoods as in white neighborhoods. even controlling on income, poverty, population, education, and other socioeconomic factors, the racial disparity persists. in denver neighborhoods where the median income is below $30,000, one check-casher exists for every 3,196 residents 64 richard j. thomas, note: rolling over borrowers: preventing excessive refinancing and other necessary changes in the payday loan industry, 48 wm. & mary l. rev. 2401, 2403 (2007). 65 some banks have begun to enter the market, but have only been doing so since around 2007. see jim puzzanghera credit unions, banks grabbing a share of payday loan dollars, l.a. times, mar. 11, 2012, http://articles.latimes.com/2012/mar/11/business/la-fi-banks-payday-loans-20120311. 66 the annie e. casey foundation, low-cost payday loans: opportunities & obstacles 10 (2005). 67 paige merta skiba & jeremy tobacman, payday loans, uncertainty, and discounting: explaining patterns of borrowing, repayment and default, berkeley mimeo (2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1319751. 68 gregory elliehausen & edward c. lawrence, credit research center, mcdonough school of business, georgetown univ., payday advance credit in america: an analysis of customer demand 28 (2001), available at http://faculty.msb.edu/prog/crc/pdf/mono35.pdf. 69 skiba & tobacman, supra note 67. 2013 columbia journal of race and law 89 compared with one check casher for every 27,416 residents in neighborhoods where the median income is between $90,000 and $120,000.70 given those data, the usage rates among minority groups are hardly surprising. one 2009 survey of payday loan customers in texas found that fifty-nine percent of borrowers were women, and forty percent were single women.71 the same study found that forty-four percent of borrowers were latino, while thirty percent were african american.72 a separate study conducted in 2012 found that african americans were twice as likely to have used payday loans, despite their considerably smaller segment of the population.73 that study found that, overall, african americans constituted twenty-three percent of payday loan users, while comprising only twelve percent of the population.74 latinos, while comprising sixteen percent of the population, constituted fourteen percent of payday loan users.75 sadly, military personnel and their families are also frequent targets, and users, of payday loans.76 2. the disproportionate impact of payday lending on minority communities that payday loan customers are drawn disproportionately from minority groups is not an accident. in 2007, bill harrod, a former manager at an ohio-based payday lending store, resigned his position “as a matter of conscience.”77 mr. harrod’s conscience was offended by the fact that his employer, check n’ go, had instructed him to target his marketing towards african american communities, despite the potential to market their services in more diverse areas.78 he was even instructed to focus his efforts to market their lending services sourced in ohio to black communities in maryland, a state where such loans were prohibited.79 as described by mr. harrod, the industry’s deceit of the african american community was deliberate and recognized no boundaries of decency and fair dealing: i was instructed to start attending services at unity baptist church—neither my bosses nor the lobbyists could do this because they were not black—to gain favor with the minister there and convince him to support us publicly. i was instructed by my boss to offer the church $800 to send several children to summer camp in return for the pastor testifying against . . . on reducing payday loan interest rates. i did this. but in the end, the minister walked out of the council chamber without testifying because he was embarrassed at what he had been asked to do. i was told to pressure him to go back into the room, but he wouldn’t do it.80 70 charis e. kubrin et al., does fringe banking exacerbate neighborhood crime rates? investigating the social ecology of payday lending, 10 criminology & pub. pol’y 439 (2011). 71 short-term cash, long-term debt, supra note 43, at 15. 72 id. at 16. 73 who borrows, where they borrow, and why, supra note 43, at 13. 74 id. at 35. 75 id; see also kubrin et al., supra note 70. 76 see steven m. graves & christopher l. peterson, predatory lending and the military: the law and geography of "payday" loans in military towns, 66 ohio st. l.j. 653 (2005). 77 press release, ohio coalition for responsible lending, payday lending industry insiders tell all: unsavory details emerge about the debt trap and much more 1 (sept. 11, 2007), available at http://www.cohhio.org/pdf/nr_09112007.pdf. 78 id. 79 id. 80 id. at 4. 90 checking out the exception to 3-104 vol. 3:1 on this point, professor creola johnson has identified four advertising and marketing ploys that lenders use to victimize communities of color.81 first, lenders frequently employ african american celebrities to establish trust and rapport with the community they are targeting.82 second, lenders target african american communities by partnering with leaders in the african american community, including local church leaders. third, lenders hire minorities into sales positions for the purpose of soliciting business in the local minority community, as was the case with mr. harrod.83 fourth, lenders design marketing content that combines racial and religious imagery in order to appeal to faith-based minority targets.84 as a result of the advertising and business tactics of the payday lending industry, payday lending stores are more likely to be situated in areas with large minority populations,85 and thus payday loan customers are more likely to be minorities.86 due to the nature of payday loans, the eventual negative effect is that minorities are ultimately more likely to become trapped in a vicious cycle involving payday loan debt than non-minorities.87 of course, concerns about poverty and economic development have long been of prime importance to african american communities, the intransigence of which have been vexing to generations of community activists who have worked tirelessly to address these concerns.88 in the aggregate, payday loans damage communities by perpetuating the continuation of a cycle of poverty, luring people to borrow money against their future salaries just to pay for current every day needs for their households. one study of payday lending practices in california found that payday loan operators sapped $247 million in fees annually from primarily minority communities.89 another study, conducted across multiple states and regions, found that payday loans extracted $3.1 billion in fees from borrowers, many of whom are minority or lower-income consumers.90 without financial resources, it is nearly impossible to reinvigorate a community. for instance, without a reliable customer base, businesses will not want to move to a particular community. on a macro level, payday loans therefore reduce the overall financial well-being of minority communities, thereby retarding economic development and postponing social justice. 3. payday lending and bankruptcy 81 see creola johnson, the magic of group identity: how predatory lenders use minorities to target communities of color, 17 geo. j. poverty law & pol'y 165, 168 (2010). 82 id. at 171. 83 johnson, supra note 81, at 174–75. 84 id. at 175–76. 85 id. 86 id. 87 see johnson, supra note 81, at 186–88. 88 see, e.g., ethan cohen-cole, credit card redlining (2009) (describing “disinvestment” in urban areas dating back to world war ii and discrimination in access to credit as contributing to the “economic malaise” which now faces many minority population centers across the country). this issue can be traced as far back as the end of the civil war and reconstruction. it was during this time that america first faced problems of viability relating to african americans on a grand scale. see, e.g., the freedmen’s bureau bill, act of march 3, 1865, ch. 90, 13 stat. 507 (establishing freedmen’s bureau during reconstruction era). as anyone who has driven through the inner city of any major american metropolis knows, it is a problem which has not been answered adequately, and which is only exacerbated when financial institutions deviously swindle millions of dollars from those communities. 89 wei li et al., predatory profiling: the role of race and ethnicity in the location of payday lenders in california, center for responsible lending (mar. 26, 2009), http://www.responsiblelending.org/california/capayday/research-analysis/predatory-profiling.pdf. 90 profiting from poverty, nat’l people’s action (jan. 2012), http://www.npaus.org/files/profiting_from_poverty_npa_payday_loan_report_jan_2012_0.pdf. 2013 columbia journal of race and law 91 another major problem with payday loans is that they are deceptive. payday lenders frequently advertise their loan products as “short-term,”91 yet it is clear that this cannot possibly be the case. cameron blakely, a former manager of a payday lender in washington, d.c., explained how his employer profited from its payday loan business: the secret to the success of the payday loan is its deceptive design. specifically, we made the process very simple and easy at the front end to get people into the loan. but at the back end, we made it very difficult for customers to get out of the loan. it became a situation where our borrowers were like indentured servants, but with indefinite terms of servitude. they would work and work. but each payday, we’d claim a piece of their paycheck. every paycheck. not only was it hard to escape, but most of our customers were not fully aware of the desperate situations they were in. they were so confused that sometimes they would say that they just couldn’t live without that extra payday loan cash coming in—when, in reality, they were not getting any more money out of the loan. instead, they were paying money to us in fees over and over again. and that is what was making their paychecks even shorter than usual.92 consumers get trapped in a debt cycle using payday loans in many ways. one way, of course, is a simple inability to repay the loan. at the other end of the spectrum is the situation caused by payday lenders who fail to explain to borrowers the consequences of making only minimum payments—namely that minimum required interest-only payments will not ever pay down the principal outstanding on the loan.93 in this manner, payday lenders deceive consumers into believing they are paying off their loans when in reality they are not. there is also a body of scholarship that suggests that payday loan borrowers have a higher than average likelihood of filing a personal bankruptcy. a 2001 study found that that 15.4% of payday loan users had filed a bankruptcy petition.94 during the same survey period, only 3.7% of the total adult population had filed bankruptcy petitions.95 moreover, sixty percent of payday loan customers had also maxed out their credit cards.96 another study of bankruptcy petitions in new mexico found that eighteen percent of individuals filing bankruptcy petitions had used payday loans.97 these studies only establish correlation, and therefore standing alone do not support the proposition that payday loans cause bankruptcy. it is possible that some of these data capture consumers who were well on the way towards bankruptcy petition before ever taking out a payday loan and may have even postponed the 91 see how it works, cashnetusa, http://www.cashnetusa.com/how-it-works.html (last visited nov. 2012) (describing payday loan as “ short-term loans with a small dollar amount that are usually repaid upon your next payday.”). 92 press release, ohio coalition, supra note 77, at 3. using tactics like this, mr. blakely’s employer managed to extract nearly $15,000 in fees to service a loan for $900. that $15,000 represents an opportunity cost between servicing fees and everything else a consumer may spend money on. in other words, the servicing fees which payday lenders extract from consumers is money which otherwise could have been spent on goods and services which the consumer actually wants. this may seem trivial when only discussing a single consumer, but payday lending is a multi-billion dollar industry, and these fees are the only profit center for the industry. in this regard, the consumer protection issues i have been discussing tie directly into concerns over the national economy. it is difficult to imagine a productive economy in which consumers spend all their money servicing loans. 93 nathalie martin, supra note 49, at 599. 94 elliehausen & lawrence, supra note 68. 95 id. 96 id. 97 nathalie martin & koo im tong, double down and out: the connection between payday loans and bankruptcy, 39 sw. l. rev. 785, 803 (2010). 92 checking out the exception to 3-104 vol. 3:1 bankruptcy because of the payday loan’s usefulness as a last resort. still, there appears to be a strong inference that payday loans increase the likelihood of future bankruptcies. this is especially true given the evidence that suggests that the payday loan industry preys on financially distressed individuals. b. credit cards credit card usage has increased substantially since the 1990 reforms, despite only moderate increases in the number of credit card users. there are data, along with anecdotal evidence compiled in other studies that suggest that credit cards have become an increasingly important cash management tool following the 1990 check collection reforms. in 1990, there were 122 million cardholders in the united states and 1.012 billion cards in circulation.98 credit transactions were valued at $466 billion, and outstanding consumer credit card debt was $243 billion.99 in 1997, outstanding credit card debt was approximately $526 billion.100 three years later, in 2000, there were 159 million credit card holders and 1.425 billion credit cards in circulation;101 credit card purchases totaled $1.242 trillion, and the total outstanding debt was $680 billion.102 eight years after that, in 2008, there were 176 million card holders and 1.493 billion credit cards in circulation;103 credit card purchases totaled $2.153 trillion, and outstanding consumer debt stood at $976 billion.104 the census bureau projects that for 2011 there were 183 million people with credit cards and 1.278 billion credit cards in circulation.105 the bureau further estimates that credit transactions for 2011 totaled $2.044 trillion, and total consumer outstanding debt was $897 billion.106 though i ultimately conclude that credit card use is a significant problem for consumers (and minorities in particular), i also recognize that credit cards do provide some important benefits for consumers. first, for many consumers, credit cards may be the only available source of credit.107 also, credit cards allow consumers greater cash management flexibility because the ability to use credit is less tied to receiving a paycheck than payday loans or cash.108 despite these possible benefits, credit cards also pose significant problems for consumers. first, credit card agreements are quintessential adhesion contracts in which the consumer’s only role in the 98 banking finance and insurance, u.s. census bureau, http://www.census.gov/prod/2002pubs/01statab/banking.pdf (last visited nov. 25, 2012) 99 id. 100 legislative update, american bankruptcy institute, http://www.abiworld.org/am/printertemplate.cfm?section=home&template=/cm/contentdis play.cfm&contentid=53197 (last visited dec. 9, 2012). 101 statistical abstract of the united states: 2011, u.s. census bureau, http://www.census.gov/compendia/statab/2011/tables/11s1187.pdf (last visited nov. 25, 2012). 102 id. 103 id. 104 id. 105 id. 106 id. the census bureau estimates that there will be 160 million cardholders for 2012, and outstanding consumer credit debt will fall to $870 billion. see u.s. census bureau, http://www.census.gov/compendia/statab/2012/tables/12s1188.pdf. 107 see david s. evans, the growth and diffusion of credit cards in society, 2 payment card econ. rev. 59, 64 (2004). often other types of unsecured loans are difficult to obtain since the lender has to rely entirely on the predicated ability of the borrower to pay instead of securing additional collateral. 108 id. 2013 columbia journal of race and law 93 contractual process is to accept or decline the terms as offered.109 the fear that credit card companies will use this imbalance in bargaining power to their advantage is not merely conjectural: scholars and lawmakers have already identified several ways in which credit companies insert one-sided, adhesive terms into their agreements, often to the detriment of consumers.110 among others, these include provisions that allow the credit card company to alter the terms of the agreement at any time for any reason or that allow them to assess unreasonable penalty fees.111 inclusion of such terms make credit cards a risky cash management solution because the credit card debtor is in a considerably inferior position to that of the lender, which is both more sophisticated economically and holds a superior relative position in all negotiations.112 subsequently, in may of 2009, credit card reform legislation passed that greatly limited: a) the card companies’ ability to change individual interest rates (requires 45 day advance notice); b) who can receive a credit card (individuals under 21 must prove that they can repay the money or a parent will pay); and c) how much time people have to pay their bills.113 the consumer risk associated with large credit card debt was amplified by amendments to the bankruptcy code passed by congress in the bankruptcy abuse prevention and consumer protection act of 2005 (hereafter “bapcpa”). ostensibly, the purpose of bapcpa was to “improve bankruptcy law and practice by restoring personal responsibility and integrity in the bankruptcy system and ensure that the system is fair for both debtors and creditors.”114 congress passed bapcpa in response to lobbying efforts by the credit and financial sectors feeling that many consumers were spending recklessly and then taking advantage of lax bankruptcy rules to escape their debt obligations.115 the 2005 amendments to the bankruptcy code specifically targeted consumer bankruptcy filings in order to reduce the losses incurred by the credit industry as a result of the ability of credit card holders to discharge their debts in chapter seven proceedings.116 following the amendments, bankruptcy is a less viable option for many consumers, meaning that credit card debt is considerably more likely to become permanent.117 when race is factored into the equation, the problems associated with credit cards are exacerbated. traditionally, minority access to credit was well below that of whites.118 when minorities are offered credit card agreements, they are frequently on less favorable terms than white customers receive.119 specifically, poor and minority customers were found by one recent study to be more likely to 109 see eric a. zacks, unstacking the deck? contract manipulation and credit card accountability, 78 u. cin. l. rev. 1471, 1474 (2010); mo zhang, contractual choice of law in contracts of adhesion and party autonomy, 41 akron l. rev. 123, 123–24 (2008). 110 see zacks, supra note 109, at 1477–78. 111 id. 112 this imbalance of bargaining strength and susceptibility to fraud were one of the things which motivated congress to pass the card act in 2009. the card act requires, inter alia, that credit card companies maintain interest rates as stated in the initial contract for one year, and that 45 days written notice be given if a company wishes to increase a cardholder’s interest rate or fees. new credit card rules effective feb. 22, federal reserve board, http://www.federalreserve.gov/consumerinfo/wyntk_creditcardrules.htm (last updated mar. 2010). 113 id. 114 h.r. rep. no. 109-31(i) at 2 (2005). 115 see bankruptcy abuse prevention and consumer protection act, cchgroup (apr. 21, 2005), http://www.cch.com/bankruptcy/bankruptcy_04-21.pdf. 116 id. 117 id. at 2. 118 demos, supra note 43. 119 id. (characterizing credit agreements offered to minorities following deregulation of credit industry as “economically detrimental.”). see also jennifer wheary & tamara draut, who pays? winners and losers of credit card deregulation, demos, 1, http://www.demos.org/sites/default/files/publications/whopays_demos.pdf (last visited nov. 25, 2012) (noting that low wealth and minority customers receive higher interest rates than other consumers). 94 checking out the exception to 3-104 vol. 3:1 pay greater than twenty percent interest on their credit card bills,120 and twice as many african americans paid twenty percent or greater interest than whites.121 all things considered, it is not surprising that more minorities default on their credit card bills.122 such defaults can have terrible consequences for a consumer. when a consumer defaults on a bill, it adversely affects her credit rating and the all-important credit score—both of which can lead to fewer future borrowing opportunities and perpetuation of the cycle of poverty.123 that, in turn, can make it difficult to obtain additional credit.124 when additional credit is available at all, it is often at even higher interest rates.125 that leads to a potential debt cycle, and due to bapcpa, that debt is increasingly difficult to discharge. a poor credit rating can also negatively affect current and future job prospects. c. home equity lines of credit (helocs) helocs are a form of credit that is tied to the equity a consumer has in his or her home, and which collateralizes the consumer’s home as security for the instrument.126 in 1991, 282,000 u.s. households had a home equity loan. this number increased at a gradual pace until 1997.127 in 1997, the number of helocs totaled 433,000,128 and in 1998, this number increased substantially to 753,000. by 2000, there were 1,272,000 households with helocs.129 industry sources estimated that by early 2010 there were 5.4 million helocs.130 helocs were preferred by consumers because they were a more affordable type of credit than credit cards.131 like the other forms of credit discussed in this article, however, helocs pose substantial risks to consumers which render them less than ideal cash management devices.132 there is evidence that, over time, creditors offering helocs have been engaging in predatory conduct. specifically, the main predatory practice that heloc lenders use is the offering of credit itself, specifically offering a heloc to homeowners who cannot be reasonably expected to repay the loan.133 lenders encourage consumers to take out helocs using several strategies. some lenders, for instance, instruct consumers to lie on 120 id. at 6. 121 id. 122 id. 123 the plastic safety, demos, http://www.demos.org/sites/default/files/publications/plasticsafetynetdemos.pdf (last visited nov. 25, 2012). 124 id. 125 id. 126 home equity lines of credit: who uses them?, u.s. census bureau (sept. 2007), http://www.census.gov/prod/2007pubs/c2kbr-37.pdf. 127 id. 128 id. 129 id. 130 see paul calem et al., credit cycle and adverse selection effects in consumer credit markets—evidence from the heloc market (2011), http://www.phil.frb.org/research-and-data/publications/working-papers/2011/wp11-13.pdf. 131 marc eisenson & nancy castleman, when mining your home for money, beware of fool's gold, good advice press, http://www.goodadvicepress.com/omhomeequity.htm (last visited oct. 21, 2012). 132 for details on the risk associated with home equity lines of credit, see infra notes 140–41 and accompanying text. generally speaking, wealthier consumers are more likely to take out a heloc than other lower income consumers. see rebecca n. morrow, billions of tax dollars spent inflating the housing bubble: how and why the mortgage interest deduction failed, 17 fordham j. corp. & fin. l. 751, 795 (2012); but see rashmi dyal-chand, exporting the ownership society: a case study on the economic impact of property rights, 39 rutgers l.j. 59, 75 (2007) (describing 2001 census study finding that 810,000 out of 4.3 million americans who took out a heloc were lower-income consumers). 133 id; see putting your home on the loan line is risky business, fed. reserve board (apr. 8, 2008), http://www.federalreserve.gov/pubs/riskyhomeloans/. 2013 columbia journal of race and law 95 their applications about how much they earn, thereby increasing their rates of approval.134 other lenders advise homeowners to convert their current mortgages into new, longer term mortgages without explaining the total amount by which principal debt will increase over the life of the loan.135 still, other lenders offer consumers a heloc based on an inflated value of the home and/or the amount of the consumer’s equity.136 this is especially risky after the housing bubble burst because home prices have decreased dramatically, making it more difficult for consumers to recoup the value of their home or to maintain the ratio of loan to equity that the loan agreement may require.137 banks are aggressive about protecting themselves against the risks associated with helocs. during the 2008 housing bubble, as home prices fell and home equity levels declined, many banks froze or reduced their heloc lines.138 this means that consumers who depended on helocs as ax cash management strategy may now need to look elsewhere. in addition, defaulting on a heloc brings with it the very real likelihood that the consumer’s home will be foreclosed upon.139 for these reasons, helocs are not advisable as a short-term cash management strategy for consumers looking for a replacement for the float that was built into the pre-reform check clearing. finding themselves squeezed on all sides, some consumers are imbibing a mixture that combines a heloc, credit cards, and payday loans. to say that this is a potentially lethal financial cocktail for the unsophisticated population of working poor is an alarming understatement. v. two recommendations a. the statutory definitions of “check” under both the u.c.c. and regulation cc should be amended to remove the requirement that they are payable on “demand” the first recommendation is for both the re-drafters of the u.c.c. and congress to change the definition of “check” to include drafts drawn on banks that are either time instruments or instruments that are payable on demand. as a result, checking account customers would have the option of issuing checks with short-term future due dates140 in addition to traditional bank drafts that are payable on demand.141 the benefit to bank customers who use short-term time drafts instead of those that are payable on demand would be that they would have control over the date on which the bank would debit 134 id. 135 id. 136 id. 137 id. 138 carolyn bigda, when heloc freezes over, cnn, http://money.cnn.com/2008/04/18/real_estate/heloc_freeze.moneymag/index.htm (last visited oct. 21, 2012). 139 eisenson & castleman, supra note 131. 140 to be clear, this article refers to “short term” due dates in its recommendations because its goal is to replace check float and the corresponding self-help solutions which consumers lost after the implementation of the federal regulations. it is entirely possible, however, that under the new definition that this article advocates for, parties to checks would be able to agree to dates that are either short-term or long-term. 141 delayed debit cards have existed in europe as well. many european countries have credit cards that are linked to bank accounts. outstanding balances would be paid off in full at the end of the month from that account. this type of activity is now much less common. finland, for example, used visa cards solely as delayed debit cards until 2001. however, visa customers can now use the cards as normal credit cards. see john kelly & aisling reilly, credit card debt in ireland: recent trends 1 (2005); president bush stated that “[o]nce this crisis is resolved, there will be time to update our financial regulatory structures. our 21st century global economy remains regulated largely by outdated 20th century laws.” eamonn k. moran, wall street meets main street: understanding the financial crisis, 13 n.c. banking inst. 5, 57 (2009). 96 checking out the exception to 3-104 vol. 3:1 their accounts to pay checks that are deposited when issued but prior to the date when they are payable. this would give parties to checks control over the timing of the payment of the checks in the cases where their checks are issued with due dates; and once again allow them to issue checks that would not be paid immediately. this is better because it opens the opportunity to allow checking account customers to bargain for the same amount of time that they once had, with fingers firmly crossed, under the old, pre-reform, slow check collection timing rules. i believe that having this option would appeal to most checking account customers, especially the working poor. my preliminary research reveals that this recommendation has great appeal to another important group of users of checks—business owners. this relatively financially powerful constituency has relied very heavily upon checks because they offer business owners controls when managing their cash needs, working capital, and record keeping. b. regulation cc should require banks to offer checking customers a new check with a future due date and that can be deposited when issued but not payable until due payday loan store operators seem to recognize that consumers need this option and yet community and commercial bankers and their federal regulators do not. therefore, my second recommendation is for regulation cc to be amended adding a provision requiring the creation of a new bank product in the form of a check with a due date draft—or a check that is payable on a definite future date rather than on demand.142 this new check would have two date lines: one for the date when the check was issued (this is the purpose of the current date line on demand instruments); and the new, second line for the date when the check will be due and properly payable by the paying bank. this new category of check transactions would also match the expectations of parties who can negotiate freely to use, or to not use checks with a future due date. this new check will provide many consumers with a much-needed alternative to payday loan stores, credit cards, helocs, and other devices; thus ensuring benefits to the economic and financial integrity of consumers who are clearly demanding better alternatives and more flexible bank products. it also has the benefit of simplifying the law of negotiable instruments, both state and federal, by eliminating the unnecessary exception to the general rule that parties to all instruments have the flexibility to enter into commercial transactions confident that they can bargain for the most favorable terms they can muster, including whether they must be able to pay on demand or whether they will have until a future date to make payment according to their private transactional reasons and bargaining power. with today’s technology making it easier for banks to accommodate the tracking involved with sorting checks, the burden of implementation is far outweighed by the burdens on consumers, especially poor and minority consumers who have a clear need for this bank solution.143 vi. potential objections 142 see appendix c for an example of what this new instrument may look like. 143 in general, my proposal is for a way to replace the float once enjoyed by consumers who used checks to pay for purchases with the expectation that the presentation would be delayed for several days. the replacement proposed, therefore, would probably continue to be a very short term item with a due date that would arrive in the very near future—say, seven to twenty days out—when the item will become due; and prior to which it is not yet properly payable. see appendix c: new proposed check with two date lines, one for the date of issuance that is currently featured on checks; and another for the new date due that can be either the same as the issuance date for demand checks, or with a date at a definite time in the future for checks that are time instruments under the new proposed redefinition of “check” for both article 4 and regulation cc. 2013 columbia journal of race and law 97 i have made two recommendations for changes in both the law and banking practices to help consumers navigate the post-reform checking landscape more successfully than they have heretofore. i assume that helping consumers in these ways would improve the track record of the reforms themselves, which are justified only to the extent that this federal intervention in states’ jurisdiction over the commercial lives of their citizens is based on the federal government’s interest in protecting consumers. obviously, these recommendations are not minor, and they may be met with some criticism or objections. there are a number of foreseeable reasons that seem to explain why banks may balk at having to live with the recommendations, if implemented. this section attempts to address what i feel could be some of the more vigorous objections to my recommendations. a. the “redundancy” objection one possible objection may attack the necessity of the new instrument on the grounds that banks already offer overdraft protection for customers who write checks against insufficient funds. there is, however, an important distinction between offering a service to remediate a wrong and one that offers an option to engage in a positive transaction. this is especially important for poor and marginalized consumers who may not qualify for overdraft protection nor benefit from the service if it requires them first to be humiliated and admonished by a fee for being allowed to avoid harsher penalties. this new time draft would also not be redundant insofar as it is additive by increasing the number of payment methods that are available to buyers and sellers who could consider using this new payment instrument for their transactions at their option. increased availability of options for completing and paying for their obligations is essential to the freedom of the parties to contracts to engage in commercial transactions that allow them to participate in a vigorous marketplace and to be creative in the way they agree to terms. b. the “implementation” objection another potential objection to using the new time check is that the product could be difficult to implement. how would a bank process checks that are due on various different future dates? in today’s technological environment, i do not think that this would be hard at all. banks have been forced to ramp up their use of sophisticated technology in order to achieve the objectives of rules of regulators and judges for various other purposes. in fact, the federal regulation that first required expedited check collection stated that the law was timely because the banks had the available technology to implement the changes and that additional regulations would follow as technology improved over time. this same technology can be employed for this purpose, as well.144 modern pre-printed checks are embedded with magnetic ink character recognition software (micr codes) that allow banks to encode information into checks and to retrieve it later. for example, checks are now pre-printed so that their micr lines are populated with information such as the bank’s american banking association routing number, the customer’s checking account number, and the check number. additional information can be added to the check throughout its life as well, such as when the amount of the check has been added after it has been presented and paid; or when additional bank endorsements are made on the back of checks during the collection process. using this existing technology, micr code positions could be dedicated for use whenever a check that has been deposited has a due date that is different from its issuance date. 144 expedited funds availability act (e.f.a.a.), supra at 24. 98 checking out the exception to 3-104 vol. 3:1 with today’s technology, a check that is issued today but not properly payable until two weeks from now could be deposited for collection today (instead of waiting two weeks to deposit a post-dated check), and the paying bank could input the payment date information that would result in the payment of the item on the future date instead of immediately. banks could program available positions in the micr line or use other technology already being used during the process of posting checks to correspond to the due date for the time instrument. c. general business objections a final, practical objection is that banks simply may not be sure that a suitable business model can be developed. banks currently earn substantial revenue from the fees they charge when a consumer has written a check with insufficient funds. banks will charge fees ranging from $15 to $40 per check to avoid bouncing the check. bank service fees are a major source of revenue for banks with $32.6 billion in fees collected in 2003.145 banks will want to charge a fee for the service, no doubt, so vigilance should be used to make sure that such fees are reasonable and subject to limitations akin to those that govern fees for stop payment orders. in general, however, i have no objection to a reasonable fee for this new service. no matter the precise reason, banks will undoubtedly need to be prodded to offer this option in the form of a new check with a future due date, especially given the fact that they have not offered it on a voluntary basis heretofore. it is for this reason that my second recommendation calls for a new federal regulation to compel banks to make this new check available and to honor them according to their terms, including a term specifying timing of payment. vii. summary and conclusion check collection reform at the federal level was necessary because of the length of time that it took to collect checks under the u.c.c., but because the traditional check is a demand instrument and, therefore, payment is due immediately to the person entitled to enforce it. an instrument that is due immediately should be capable of being paid without delay, and certainly in less than two weeks, or even one week. demand instruments are due immediately, and yet it was impossible for payees to receive payment immediately using the traditional system of slow bank collections. it is axiomatic to say that a law that is incapable of being enforced is bad law. similarly, a right that cannot be enjoyed is a wrong. the reason the reforms to the check collection timing rules are problematic is not because they are not necessary—they were. rather, the problem is that they were implemented as though they existed in a vacuum and without a full understanding of all of the formal and informal dynamics within the old system. i think that it is very important to consider that consumers were accustomed to, and continued to need, checks that were collected more slowly than they were under the new expedited collection regulations ushered in by the reforms. the federal reserve governing board failed to provide for the ongoing demand by consumers for a financial product that was a replacement for the old slow-to-be-collected check, but that was still a check, not something else! specifically, consumers needed a check that was not payable immediately. the controlling law governing the creation of different types of negotiable instruments, including checks, is still u.c.c. article 3. under article 3, there is no requirement that checks must be payable on demand. although they are never created as such, consumer transactions could be completed 145 see thomas p. lehman, contrasting payday loans to bounced check fees, consumer credit research foundation, http://www.creditresearch.org/editor/assets/files/050608contrastingpdayloans.pdf (last visited nov. 25, 2012). 2013 columbia journal of race and law 99 using checks that are issued on demand with due dates just as readily as when they are issued without due dates. clearly, consumers’ behavior changed dramatically in ways that have hurt the u.s. economy and have contributed to the current economic crisis. these changes are traceable, at least in part, to consumer demand for short amounts of time delays between the time of their transaction and the time when payment is completed. what payday loan store operators seem to understand is that consumers need a relatively short amount of time before they have money in their accounts that is roughly equivalent to the time between their pay checks (in the united states, this is two weeks). banks in the united states have failed to compete with payday loan store operators even though it is clear that there is a huge demand for short-term financial relief in the checking account customer base. the solution is not to go back to a slower collection system for demand drafts, but a reasonable response that gives consideration to a variety of factors. the first recommendation is to change the definition of “check” under the applicable u.c.c. and federal regulations. the change would remove from the definition the exception that makes all checks “payable on demand.” implementation of this recommendation would require the re-drafters of the u.c.c. and the federal reserve governing board to redefine “check” under the u.c.c. and regulation cc, respectively, to accommodate the need to allow consumers to bargain for the inclusion of a due date term when issuing personal checks. consequently, checks would become like all other negotiable instruments—payable either “on demand,” or “at a definite date” at the option of the parties. this approach is already authorized by existing u.s. laws of negotiable instruments. it would also match the expectations of parties who can negotiate freely to use or to not use the new payment instrument. it will provide many consumers with a much needed alternative to payday loan stores. the second recommendation is for regulation cc to be amended to require banks to offer a new service that would recognize and honor the timing of payment terms of any check that had a due date just as easily as they do for checks that are payable on demand. both of these changes will go far to improve the prospects of consumers who are clearly demanding better alternatives and more flexible bank products. 100 checking out the exception to 3-104 vol. 3:1 appendix a forward check collection process 2013 columbia journal of race and law 101 appendix b regulation cc availability schedule 102 checking out the exception to 3-104 vol. 3:1 appendix c example bank draft global class and the commercial-sexual exploitation of children: toward a multidimensional understanding pantea javidan * introduction this essay draws together several focal points of the third annual national people of color conference in 2010, human trafficking, racial contexts, criminal law, immigration law and international law, while addressing the core theme of post-racialism and other “posts.” i. purpose the purpose of this essay is three-fold. first, it challenges the notion that we live in a post-race, post-class, or post-feminist environment in which race, class and gender disparities in contemporary law and society have diminished or are diminishing to a point at which discussing inequalities along these lines is unavailing. second, using a multidimensional approach that includes childhood and age as significant dimensions of inequality, this essay develops a concept of class to enhance critical class theory (“class crits”). third, it challenges “the posts” through a social problem that epitomizes “multidimensional subordination”— child sex trafficking—with particular focus on the commercial *  ph.d. candidate, sociology (london school of economics and political science), j.d. (golden gate university school of law), b.a., sociology (university of california, berkeley). i would like to express deep thanks to professors anthony paul farley and maria grahn-farley of albany law school for the opportunity to participate in and contribute to the third annual national people of color conference in newark, new jersey in september 2010 and to the columbia journal of race and law. i would also like to thank the journal’s editorial staff for their efforts in producing a much needed law journal and for the honor of contributing to this special symposium issue. 2012 columbia journal of race and law 366 sexual exploitation of children through prostitution in the united states. ii. background a. the posts1 an in-depth discussion regarding the posts addressed here is beyond the scope of this essay. however, it is necessary to briefly specify which aspects are of concern to this discussion. a post-class position includes arguments that since the postindustrial age of the 1970’s, class dynamics have become too confusing, complex or unidentifiable to make sense of along the marxian lines of socio-economic class. it is claimed that this is because “production and labour [are] no longer . . .the fundamental basis of social organization.”2 furthermore, it claims that people no longer identify themselves along class lines, but primarily as consumers. for some, this means moving away from any serious undertaking of class analysis to focus instead upon “alternative modes of analysis concerned with inequalities and identities formed along lines of gender, race or ethnicity; and with social movements that [go] beyond class politics.”3 however, in the theoretical environment of the posts, this shift is quickly met with barriers raised by certain post-racial and post-feminist positions that foreclose these discussions. b. multidimensionality and complex inequalities multidimensionality is an approach to researching, analyzing and understanding power—the dynamics of equality, inequality, 1  for a general discussion of “the posts,” see catherine squires et al., what is this “post-” in postracial, postfeminist . . . (fill in the blank)?, 34 j. comm. inquiry 210 (2010). for explanations and discussions of post-racialism, see sumi cho, post-racialism, 94 iowa l. rev. 1589 (2009); tyrone c. howard & terry flennaugh, research concerns, cautions and considerations on black males in a post-racial society, race, ethnicity & educ., jan. 2011, at 105. for explanations and discussions of post-feminism, see stéphanie genz, third way/ve: the politics of post-feminism, 7 feminist theory 333 (2006); elaine j. hall & marnie salupo, the myth of postfeminism, 17 gender & soc’y 878 (2003). 2  fran tonkiss, contemporary economic sociology: globalisation, production, inequality 144 (2006) (describing a postclass position). 3  id. 367 global class and the commercial-sexual exploitation of children vol. 1:3 domination and subordination. it is a method of analyzing the complex inequalities that result from the interaction of hegemonic powers and subaltern subjects along multiple and various dimensions of identity, including, among others, race, class, gender, age, nationality, and disability.4 “identity is multidimensional.”5 systems of power organized along identities are often “interrelated and mutually reinforcing,”6 such that the interactional dynamics of power cannot be fully understood in isolation from one another.7 c. class crits the critical class theory movement (“class crits”) is a multidimensional approach to the analysis of race and class that builds from critical race theory.8 class crits shares this theoretical foundation with critical race feminism, lending itself to gender analysis.9 class crits leaves open the concept of class for definition, with “new theories that better define the idea.”10 “[a] systematic analysis of class, particularly as a product of economic ordering, as well as its relationship to race has not yet emerged, even though critical race scholars have argued for years that the class system in the u.s. mutually constructs race, gender, and other forms of oppression.”11 therefore, an aim of this essay is to stimulate and 4  see, e.g., osagie k. obasogie, anything but a hypocrite: interactional musings on race, colorblindness, and the redemption of strom thurmond, 18 yale j.l. & feminism 451 (2006) (discussing the approach of “interactionality,” connecting sociological principles of interactionism to the legally oriented multidimensionality and new complexity theories). 5  athena d. mutua, the rise, development and future directions of critical race theory and related scholarship, 84 denv. u. l. rev. 329, 339 (2006). 6  id. at 340. 7  for in-depth explanations of multidimensionality, see darren l. hutchinson, identity crisis: ‘intersectionality,’ ‘multidimensionality,’ and the development of an adequate theory of subordination, 6 mich. j. race & l. 285 (2001); darren l. hutchinson, new complexity theories: from theoretical innovation to doctrinal reform, 71 umkc l. rev. 431, (2002); mutua, supra note 5. 8  see generally mutua, supra note 5 (an explanation of critical race theory, critical race feminism and class crits). 9  id. at 339 (“critical race feminism builds on critical race theory as well as insights specifically from black feminist theory . . . [focusing] on the intersections of race, ethnicity and/or colonialism on the one hand and gender on the other. in addition, it explores the international manifestations of racialized gender oppression.”). 10  id. at 368 n.250. 11  id. at 379. 2012 columbia journal of race and law 368 develop perspectives on class. the analysis of class in combination with other social categories often reveals greater inequalities. class crits postulates that class analysis of how material resources are accumulated and distributed can reveal how these processes are gendered and racialized.12 childhood and age are rarely centered in, and are often excluded from, different critical analyses.13 however, focusing on childhood and age provides greater insight into inequalities. for example, one in seven of all people in the united states lived below the poverty line in 2009.14 this reveals information about class, specifically the relatively high proportion of poverty that exists in the wealthiest developed western nation. an examination of child poverty reveals that of all children in the united states, one in five (approximately twenty percent) lived below the poverty line in 2009,15 as compared to less than one in seven adults (approximately thirteen percent).16 “children represent twenty-five percent of the population, yet they comprise thirty-six percent of all people in poverty.”17 thus, children bear the greater brunt of poverty in the united states. african-american children bear the greatest burden of child poverty and poverty in general.18 one in three africanamerican children lived in poverty in 2009.19 12  see id. at 389-91. 13  for examples that draw from critical race theory and critical race feminism while also centering a child perspective, see maria grahn-farley, a theory of child rights, 57 u. miami l. rev. 867 (2003). 14  carmen denavas-walt et al., u.s. census bureau, p60-238, income, poverty and health insurance coverage in the united states: 2009, at 14 (2010), http://www.census.gov/prod/2010pubs/p60238.pdf. 15  id. at 17. 16  state & county quickfacts, u.s. census bureau, http://quickfacts. census.gov/qfd/states/00000.html (last visited july 15, 2012). 17  michelle chau et al., national center for children in poverty, basic facts about low-income children 1 (2010), http:// www.nccp.org/publications/pdf/download_364.pdf. 18  marybeth j. mattingly & jessica a. bean, the carsey inst., the unequal distribution of child poverty: highest rates among young blacks and children of single mothers in rural america 1 (2010), http://www.carseyinstitute.unh.edu/publications/ib-mattingly-black childpoverty.pdf. see also race data, table 13: poverty status of the population by sex and age, for black alone and white alone, not hispanic: 2008, u.s. census bureau, www.census.gov/population/ www/socdemo/race/ppl-ba09.html (last visited apr. 7, 2011) [hereinafter u.s. census bureau, child poverty]. data from this table demonstrates that http://quickfacts.census.gov/qfd/states/00000.html http://quickfacts.census.gov/qfd/states/00000.html http://www.nccp.org/publications/pdf/download_364.pdf http://www.nccp.org/publications/pdf/download_364.pdf http://www.census.gov/population/www/socdemo/race/ppl-ba09.html http://www.census.gov/population/www/socdemo/race/ppl-ba09.html 369 global class and the commercial-sexual exploitation of children vol. 1:3 iii. arguments a. class is still relevant: understanding class globally and nationally 1. post-industrial post-class arguments that claim the diminishing relevance of class often cite the “post-industrial” shift as supporting evidence. “post-industrial” does not mean that manufacturing work has entirely disappeared; rather it signifies a shift in the geography of industrial labor and the social makeup of those who perform it. manufacturing work is no longer concentrated in the “first world.” thus, men of north american and western european backgrounds no longer perform the bulk of industrial labor in the world due to a shift in developed national economies from manufacturing to service work.20 however, it is important to recognize that in the globalizing capitalist economy, it is usually a woman or child of color who performs this work, and that they do so for far less pay.21 an approach that explains this shift in the era of globalization is the “new international division of labor” (nidl). nidl is founded on a world-systems theory and captures a shift in the world economy from older colonial patterns to more recent developments.22 specifically, firms in advanced industrial the poverty rate for african-american children (one in three) is greater than that of their adult african-american counterparts (one in five). 19  u.s. census bureau, child poverty, supra note 18. 20  tonkiss, supra note 2, at 7. 21  id. at 7, 23-24 22  tonkiss explains that world systems theory is associated with sociologist immanuel wallerstein, who explicates the historical development of a world economy. world systems theory holds that a capitalist mode of production is integrated in the world economy through an international division of labor that divides the world into “three broad economic zones”: the core, the periphery, and semi-periphery. id. at 12. the core comprises “the dominant region in the capitalist world economy,” which has always included northern and western europe and has more recently come to include north america and japan. id. the periphery has provided “raw material and commodities exports to the core,” as well as slave labor in early capitalism and cheap labor in advanced capitalism. this implies “a model of structured inequality” and dependency in the world economy. id. at 12-13. although geographic locations of these may vary throughout history, world-systems theory provides a viable “template for changing economic relations between the global north and the global south.” id. at 13. thus, nidl accounts for a 2012 columbia journal of race and law 370 economies (the core) employ and control cheap labor in developing economies (the periphery) to do manufacturing work.23 however, nidl today also includes itinerant service labor, and rests on social hierarchies, often interlocking with local sexual divisions of labor.24 levels of exploitation and the quality of working conditions in the global economy are highly dependent upon the “characteristics of the workforce.”25 in both manufacturing and itinerant service sectors, “the exploitation of women’s and children’s [labor] has been crucial to the emergence of the nidl.”26 gender, age and occupational status are the strongest indicators of exploitation and working conditions.27 being young, female and occupying unskilled or low-skilled positions in global commodity chains is more indicative of economic exploitation and working conditions than cartographic location or for whom one works.28 these findings on the global economy and social classifications help locate the commercial sexual exploitation of children within these structures. 2. global classes the global economy and labor have undergone corresponding shifts in the era of post-industrial globalization. however, the mode of production is still labor. these changes include the formation of a globalizing elite or “transnational capitalist class” (tcc), the fragmentation of labor, and increasing polarization and incidence of poverty within and among nations due to the uneven distribution of the benefits of growth.29 the tcc is a networked class of global capitalists that is structurally unified in relation to production—as a “class in itself”— major shift in the international division of labor during the globalization era. id. at 10-14. 23  tonkiss, supra note 2, at 7-8. 24  id. at 7, 23-24; see generally maria mies, patriarchy & accumulation on a world scale: women in the international division of labour (1998) (examining the role of women in the new international division of labor). 25  leslie sklair, globalization: capitalism and its alternatives 131 (2002) [hereinafter sklair, globalization]. 26  tonkiss, supra note 2, at 24 (citing ilo 2005 and discussing the global prevalence of child labor and child prostitution.). 27  id. 28  id. 29  see sklair, globalization, supra note 25, at 6, 9, 48; see generally manuel castells, the rise of the network society (2d ed. 2000) (developing a systemic analysis of global informational capitalism). 371 global class and the commercial-sexual exploitation of children vol. 1:3 and is unified in terms of its class consciousness and selfrepresentation—as “a class for itself.”30 transnational corporations drive the global economy, fueled by “the culture-ideology of consumerism.”31 the tcc organizes the politics of these corporations.32 the tcc consists of four fractions that each play “a specific part in building and sustaining [its hegemony]”33: (1) the corporate fraction—executives who own and/or control the major transnational corporations and their local affiliates, (2) the state fraction—inter-state bureaucrats and globalizing politicians; (3) the technical fraction—globalizing professionals; and (4) the consumerist fraction—globalizing merchants and media.34 for a class to be “transnational” its members must be able to influentially participate in international institutions in three spheres of the global system: economic, political and/or culturalideological.35 as the tcc forms and protects its hegemony, transnational corporations and global commodity chains fragment and stratify laboring classes into at least four broad but distinct categories: specialty labor, formal waged and informal labor in the nidl, and forced labor.36 in descending order, these class categories represent tiers that generally indicate levels of skill 30  for sklair, membership in the tcc does not require direct ownership and/or control of the means of production. owners and executives in the tcc make up only one part of the class. leslie sklair, sociology of the global system, in the globalization reader: an introduction to the globalization debate 70, 72 (frank j. lechner & john boli eds., 2d ed. 2004) [hereinafter sklair, global system]. despite any alleged fractionation, there is no internecine conflict within the tcc’s ranks. it may struggle over tactics, but it consistently agrees on goals: global economic liberalization and the freedom of transnational capital, as well as their alliance against labor interests (state regulation and redistribution of wealth). see william i. robinson & jerry harris, towards a global ruling class? globalization and the transnational capitalist class, 64 sci. & soc’y spring 11, 21 (2000); william k. carroll & colin carson, forging a new hegemony? the role of transnational policy groups in the network and discourses of global corporate governance, 9 j. world systems res. 67 (2003); tonkiss, supra note 2, at 152, 155. 31  sklair, globalization, supra note 25, at 46-47. 32  id. 33  leslie sklair, the transnational capitalist class 7 (2001) [hereinafter sklair, transnational]. 34  leslie sklair, global system, supra note 30, at 70, 73; see also jeb sprague, transnational capitalist class in the global financial crisis: a discussion with leslie sklair, 6 globalizations 499, 500 (2009). 35  sklair, global system, supra note 30. 36  see also tonkiss, supra note 2, at 129-33. 2012 columbia journal of race and law 372 required for the labor, valuation of the work, the amount of pay and benefits, the quality of working conditions, the level of bargaining power, and the scope of one’s “transnationality.” specialty labor (the tcc’s technical fraction) becomes the sole “transnational” class of labor, which is rewarded financially and in mobility for its special (technological, scientific) knowledge of the means of production.37 specialty labor can also shop around the globe for employment or be recruited by employers who can afford them. informal and forced labor enjoy far less, if any, choice of geographic location, and low-grade service labor mostly follows the mobile classes it is intended to serve.38 3. the new international division of labor (nidl) and informal labor contracting networks and global commodity chains in the nidl extend into the informal economy, in which low-paid women, and sometimes children, are key elements.39 ever since multilateral institutions “rediscovered” women of the third world and governments officially stereotyped and advertised them as a cheap, docile and nimble labor force best suited for manufacturing work, corporations have specifically targeted “third world women” for labor.40 this has occurred alongside a process of “housewifization,” one which misrepresents and generalizes third world women as housewives rather than wage laborers. this misrepresentation occurs despite the fact that most women in the third world work and are often de facto heads of households.41 37  manuel castells, global informational capitalism, in the global transformations reader: introduction to the globalization debate 322-23 (david held & anthony mcgrew eds., 2d ed. 2003). 38  see fran tonkiss, global political economy: power, labour, politics, 2 soc. compass 577 (2008) [hereinafter tonkiss, global political economy]. see also e. benjamin skinner, a crime so monstrous: a shocking exposé of modern day sex slavery, human trafficking and urban child markets 174, 207, 333-34 (2008) for how this pattern also applies to child prostitution and military forces. also, note the distinction between freedom of movement or mobility as associated with transnationality versus forced or coerced migration often associated with human trafficking. 39  see generally mies, supra note 24; tonkiss, global political economy, supra note 38. 40  mies, supra note 24, at 114. 41  id. at 166. for an explanation of mies’ concept of “housewifization,” see elisabeth prügl, home-based workers: a comparative 373 global class and the commercial-sexual exploitation of children vol. 1:3 these processes generate cheap, “informal” labor by devaluing women’s work and maintaining horizontal segregation to prevent collective bargaining power.42 examining the nidl illuminates hierarchies of gender and race that facilitate economic and class exploitation on a global scale. it helps make sense of human trafficking as well, by examining not only terrestrial manufacturing work, but also how service work disperses and provokes labor to move across the globe. labor exploitation of females and children in the nidl “tends to blur the distinction between [labor] commodification and slavery.”43 4. forced labor forced labor becomes the natural conclusion of the nidl’s unremitting hunt for the cheapest labor. the majority of forced labor occurs in developing nations, with “[a] significant proportion . . . [channeled] through an international slave trade” or human trafficking,44 also referred to as modern day slavery.45 corporations delve into new markets where governments routinely control, abuse and enslave their own citizens for profits.46 under the imperative of “growth” and with greater concentration of wealth among elites in the developing world (especially of agricultural land), slavery becomes the obvious choice for those who become slaveholders and often the only choice for those whom they exploration of mies’s theory of housewifization, 17 j. women’s stud. 114, 115-16 (1996). 42  fragmentation of the labor force in such ways is often a general effect of commodity chains, which create modules of labor as interchangeable links, resulting in a disposable and insecure labor force with little or no bargaining power. see tonkiss, supra note 2, at 20, 73, 102, 103-104. fragmentation of the collective action of labor is a testament to the tcc’s power (to be coordinated and organized) in contrast to labor being fractured, interchangeable and disposable as commodity and contracting chains require. thus, labor is a class in itself—albeit multi-tiered based on degrees of exploitation—but not yet “for” itself. 43  marx saw labor commodification and slavery “as elements of primitive accumulation,” and these also “fit with [marxist geographer david] harvey’s contemporary account of capital accumulation by dispossession.” tonkiss, supra note 2, at 24. 44  id. 45  see, e.g., kevin bales, disposable people: new slavery in the global economy (2004) (describing the “new slavery” that currently occurs throughout the world). 46  id. at 13-14. 2012 columbia journal of race and law 374 enslave.47 expressing the nidl logic, “new slavery” is cheap and brutal compared to what slavery scholar kevin bales calls “old slavery.”48 in new slavery, the purchase price is low and the labor is short-term, disposable and drawn from an abundant pool of slaves, yielding high profits.49 moreover, modern slavery is mutating “from culturally specific forms to an emerging standardized or globalized form.”50 the sexual dimensions of slavery based on gender, race and age hierarchies are very telling. despite the current decline of slavery based on racial or ethnic difference between slaveholders and slaves, sexual slavery highlights that race, ethnicity, gender and childhood are still salient because these aspects of identity are commodified in commercial sexual exploitation.51 while common threads between human trafficking for labor or commercial sexual exploitation are economic exploitation and duress,52 their contributing factors, specifically globalized agriculture and the chaos of economic changes, are connected by law and policy.53 the global economy’s haphazard development and its “structurally-induced instabilit[ies]” throughout the world make people vulnerable to slavery, especially debt bondage, by precipitating class polarization, debt, and destitution.54 subcontracting chains insert tiers of managers and contractors between transnational corporations, slaveholders, and forced labor, distancing them legally and morally from the miasma of slavery.55 slave labor in a commodity chain lowers production costs and passes savings up the stream of commerce, resulting in lower prices and higher profits.56 as one follows parallel commodity and contracting chains from corporate ganglia to their invisible bases, exploitation increases. with each mutually reinforced tier, from wage labor to informal and forced sectors, these chains create stratified class structures.57 the lower the tier, the less skill, valuation, pay, and bargaining power, until people disappear into the 47  id. at 13. 48  id. at 5, 14-19. 49  id. at 15. 50  id. at 25, 26. 51  see generally skinner, supra note 38. 52  id. at 233-34. 53  id. at 232, 234; tonkiss, supra note 2, at 173. 54  see bales, supra note 45, at 234-35; castells, supra note 37, 134. 55  bales, supra note 45, at 235-36. 56  id. at 23. 57  see, e.g., tonkiss, supra note 2, at 23-24. 375 global class and the commercial-sexual exploitation of children vol. 1:3 realm of forced labor and/or commercial sexual exploitation maintained by duress and socio-legal invisibility. b. race and class are relevant: toward a class crit understanding of child prostitution 1. a global perspective although the commercial sexual exploitation of children is often discussed under the rubric of forced labor, it is problematic to characterize child prostitution as “labor,” even if it is categorized as “one of the worst forms of child labor,” as per the industrial labor organization (ilo).58 however, locating child prostitution on the tier of forced labor or human trafficking allows making important connections between it and global economic processes. child prostitution is not simply an extreme aberration of an otherwise just and equal world economy, nor simply a problem of forced labor relegated to poor and developing nations. the prevalence of child prostitution is, however, strongly tied to conditions such as child poverty and child labor, which most heavily impact particular regions.59 child poverty is not an exclusive cause of child prostitution, but it is widely recognized as its most significant contributing factor.60 the asian-pacific region, especially south asia, contains the highest number of children in poverty,61 labor,62 58  press release, international labor organization, ilo worst forms of child labour convention comes into force (nov. 17, 2000), http://www.ilo.org/global/about-the-ilo/press-and-media-centre/pressreleases/lang--en/wcms_007917. 59  see optional protocol to the convention on the rights of the child on the sale of children, child prostitution and child pornography, g.a. res. 54/263, u.n. doc. a/res/54/263 (may 25, 2000) [hereinafter g.a. res. 54/263]; see also carol bellamy, unicef, childhood under threat: the state of the world’s children 17, 26 (2005), http://www.unicef. org/sowc05/english/sowc05.pdf. for an explanation of the measurement of child poverty and standard of living in comparative international perspective as well as regional assessments of absolute poverty and severe deprivation among children in the developing world, see david gordon et al., child poverty in the developing world: studies in poverty, inequality and social exclusion 3 (2003). 60  g.a. res. 54/263. 61  south asia contains the highest number of children in absolute poverty and the highest number of children in severe deprivation. gordon et al., supra note 59, at 22, 23. sub-saharan africa has the highest number of persons in absolute poverty and south asia has the highest number of children in severe deprivation in both urban and rural areas. id. at xvii, 20. http://www.ilo.org/global/about-the-ilo/press-and-media-centre/press-releases/lang--en/wcms_007917 http://www.ilo.org/global/about-the-ilo/press-and-media-centre/press-releases/lang--en/wcms_007917 2012 columbia journal of race and law 376 and prostitution.63 africa, particularly sub-saharan africa, has the highest proportion of children in child poverty,64 labor,65 and prostitution.66 according to unicef, “[two] million children, the majority of them girls, are sexually exploited in the multibilliondollar commercial sex industry.”67 current reports cite human trafficking as “the world’s fastest growing criminal industry,”68 with sex trafficking having achieved the steady growth and cash flows of a stable “industry” in the global capitalist economy.69 therefore, child prostitution on a global level is racialized, classed and gendered. forced labor also occurs significantly in industrialized countries with advanced economies, “where human trafficking— particularly of women and girls—into forced domestic [labor] and sex work—is a profitable but largely hidden part of cross-border economic flows.”70 2. the united states 62  international labour organization and interparliamentary union, eliminating the worst forms of child labour: a practical guide to ilo convention no. 182: handbook for parliamentarians 24 (2002); jeanine redlinger, child trafficking and sexual exploitation, u. iowa ctr. for human rights child labor research initiative 5 (2004), http://www.continue tolearn.uiowa.edu/laborctr/child_labor/materials/pdf/modules/child_traffick ing.pdf. 63  karen d. breckenridge, justice beyond borders: a comparison of australian and u.s. child-sex tourism laws, 13 pac. rim l. & pol’y j. 405, 408 (2004). 64  see gordon et al., supra note 59, at 22-23. 65  sub-saharan africa “has the highest incidence of children working, with one in four children engaged in some form of hazardous work.” international labour organization, accelerating action against child labour: global report under the follow-up to the ilo declaration on fundamental principles and rights at work, at xiii (2010), http://www.ilocarib.org.tt/portal/images/stories/contenido/ pdf/childlabour/accelerating_action_plan_cl.pdf. child prostitution is considered hazardous, or one of the “worst forms of child labor.” id. 66  id. at 10. 67  bellamy, supra note 59, at 26. 68  william spindler, conference puts focus on human trafficking, fastest growing criminal industry, unhcr (oct. 11, 2010), http://www.unhcr.org/4cb 315c96.html. 69  siddharth kara, sex trafficking: inside the business of modern slavery 17 (2009). 70  tonkiss, supra note 2, at 24. http://www.ilocarib.org.tt/portal/images/stories/contenido/%0bpdf/childlabour/accelerating_action_plan_cl.pdf http://www.ilocarib.org.tt/portal/images/stories/contenido/%0bpdf/childlabour/accelerating_action_plan_cl.pdf http://www.unhcr.org/4cb315c96.html http://www.unhcr.org/4cb315c96.html 377 global class and the commercial-sexual exploitation of children vol. 1:3 class polarization in the united states—the widening of the gap between rich and poor—“appears to be as true . . . as it is for poorer countries,” and also follows similar patterns of disparity along the rural-urban divide.71 child poverty levels in the united states are on par with mexico, making their percentages the highest among member nations of the organisation for economic coooperation and development (oecd).72 it also appears that a disproportionate number of poor children are involved in prostitution in the united states.73 the picture of poverty in the united states is one of a wealthy nation with an advanced economy whose social conditions in many ways mirror those of developing nations. current data on the united states estimates that 100,000 children are forced into prostitution each year, and that as many as 300,000 children are subject to some form of commercial sexual exploitation.74 the average age for entering prostitution is reportedly thirteen years old,75 well below the age of majority established in the united nations convention on the rights of the 71  sklair, globalization, supra note 25, at 53. 72  unicef, innocenti report card: a league table of child poverty in rich nations 2 (2000), http://www.unicef-irc.org/ publications/pdf/repcard1e.pdf. 73  stephanie halter, law enforcement’s reconceptualization of juvenile prostitutes from delinquency offenders to child sexual abuse victims in six u.s. cities 14 (may 2008) (unpublished ph.d. dissertation, university of new hampshire) (on file with author) (citing richard j. estes & neil a. weiner, the commercial sexual exploitation of children in the us, canada and mexico (2001), http://www.sp2.upenn. edu/~restes/csec_files/complete_csec_020220.pdf. 74  although quantitative data and statistical information regarding human trafficking is deemed problematic because it is difficult to collect and assess, this 1996 estimate from end child prostitution child pornography and the trafficking of children for sexual exploitation (ecpat) is the most cited for child sex trafficking for the united states. estes & weiner, supra note 73, at 4; see also halter, supra note 73, at 9 (citing the ecpat 1996 report and discussing the limitations of the data). 75  estes & weiner, supra note 73, at 92. http://www.unicef-irc.org/publications/pdf/repcard1e.pdf http://www.unicef-irc.org/publications/pdf/repcard1e.pdf 2012 columbia journal of race and law 378 child—eighteen years of age.76 these estimates and figures have held steady over the last decade.77 although the trafficking victims protection act (tvpa)78 and its reauthorizations are meant to be comprehensive federal laws to protect victims of trafficking and/or prosecute traffickers, a unified framework for children is still lacking.79 how the state handles children involved in prostitution depends upon laws that allow children in the united states to be treated both as victims of sex abuse by adults and as perpetrators of sex crimes against adults,80 and depends significantly on law enforcement discretion.81 also, relevant laws of the united states appear to be moving toward more punitive measures underpinned by retributive philosophies.82 this context produces disparate outcomes along lines of race, class, gender, and childhood. as discussed earlier, a disproportionate number of children who are commercially sexually exploited through prostitution in the united states and globally are female and come from conditions of poverty. child prostitution and child labor follow patterns of child poverty, disproportionately affecting children of sub-saharan africa and asia, which demonstrates that race, class, and gender are highly relevant to the global problem of child prostitution. in the united 76  united nations convention on the rights of the child art. 1, sept. 2, 2009, 1577 u.n.t.s. 3. the united states and somalia—both u.n. members—have not ratified the uncrc. however, the united states is a signatory to the optional protocol, which prohibits the commercial sexual exploitation of children. 77  halter, supra note 73, cites these estimates from 2001, when her findings were published in 2008, indicating that over most of the first decade of the 2000’s, these numbers were stable. 78  victims of trafficking and violence protection act of 2000, pub. l. no. 106-386, 114 stat. 1464 (2000). 79  see, e.g., christianna m. lamb, the child witness and the law: the united states’ judicial response to the commercial sexual exploitation of children in light of the un convention on the rights of the child, 3 or. rev. int’l l. 63 (2001). 80  id.; pantea javidan, invisible targets: juvenile prostitution, crackdown legislation and the example of california, 9 cardozo women’s l.j. 237 (2003); wendi j. adelson, child prostitute or victim of trafficking? 6 u. st. thomas l.j. 96 (2009); moira c. heiges, from the inside out: reforming state and local prostitution enforcement to combat sex trafficking in the united states and abroad, 94 minn. l. rev. 428 (2009). 81  lamb, supra note 79, at 86. 82  shelby schwartz, harboring concerns: the problematic conceptual reorientation of juvenile prostitution adjudication in new york, 18 colum. j. gender & l. 235 (2008). 379 global class and the commercial-sexual exploitation of children vol. 1:3 states, a 2008 study on law enforcement contact with children involved in prostitution in six major u.s. cities found that africanamerican children are most heavily burdened with child poverty and african-american girls represent a highly disproportionate majority of arrests for the crime of prostitution.83 the study also found that arrests of african-american children were disproportionately higher and also increasing at substantially higher rates.84 forty-one percent of the sample of arrested children was african-american when african-americans comprised only twelve percent of the population in the cities sampled.85 a 2009 study found that in new york city, one of the cities investigated in the 2008 study, arrestees from 1997 to 2006 were overwhelmingly african-american females.86 seventy-seven percent were female and seventy percent were african-american, although only twenty-seven percent of all new york city residents were african-american according to the 2000 census.87 it remains unclear whether recent increases in arrests of african-american youth for prostitution reflect an actual increase in the incidence of prostitution among this population.88 whether they do or not, it is clear that african-american females in the united states are disparately impacted by child prostitution, its attendant socioeconomic conditions, and the legal responses it elicits. legal responses are also the cause of significant concern over differential treatment of foreign-born international trafficking victims, versus u.s.-born domestic trafficking victims.89 when tvpa protections do extend to victims—whether international or domestic—the way children are treated—whether they are punished for committing sex crimes or are diverted from criminal punishment—depends ultimately upon the level of resources that specific jurisdictions dedicate to the child.90 83  halter, supra note 73, at 129. 84  id. 85  id. 86  amy muslim et al., the commercial sexual exploitation of children in new york city 16, 18 (2009), www.ncjrs.gov/pdffiles1/ nij/grants/225084.pdf. 87  id. at 16, 18. 88  halter, supra note 73, at 137, 202. 89  muslim et al., supra note 87, at 16. 90  halter, supra note 73, at 15, 148. http://www.ncjrs.gov/pdffiles1/nij/grants/225084.pdf http://www.ncjrs.gov/pdffiles1/nij/grants/225084.pdf 2012 columbia journal of race and law 380 iv. conclusion law can play a key role in both reproducing inequalities and in accomplishing social justice. examining the role of law during the era of modern-day slavery and since the civil rights movement indicates that a most profound shift has been the universal illegality of slavery and the illegality of certain types of discrimination. however, as this essay argues, this modern day period is one of persisting inequalities. researcher benjamin skinner reports, “there are more slaves today than at any other point in human history.”91 this fact alone is sufficient for challenging the arguments advanced by “the posts” that this essay addresses; slavery or exploitation through human trafficking thrives on inequalities of race, class, gender and childhood. these persisting inequalities require examining the role of law in reproducing the social and legal conditions that maintain such an institution despite its universal illegality. human trafficking today occurs in a context of globalization and economic crisis, with abundant reportage regarding growing socio-economic inequalities, including in the united states.92 the existence of human trafficking in global and national context, particularly while focusing upon the case of children who are trafficked for purposes of commercial-sexual exploitation, demonstrates the continuing relevance of race, class and gender analysis. it also demonstrates the criticality of seeing childhood and age as key dimensions of identity in the context of intensified disparities that mutually construct one another. human trafficking, particularly when viewed in its larger context, challenges postracialist, post-class, and post-feminist arguments that respectively claim the diminishing relevance of analyzing the world in terms of race, class and gender. 91  skinner, supra note 38, at 17. skinner cites the international labour organisation’s estimate that at least 12.3 million people are in slavery. id. at 7. see also bales, supra note 45, at 240. bales estimates that there are approximately 27 million people in slavery today. this would be the greatest number of slaves recorded, although in the past a greater proportion of the world’s population was in slavery. skinner, supra note 38, at 13. 92  see, e.g., erik eckholm, recession raises poverty rate to a 15-year high, n.y. times, sept. 17, 2010, http://www.nytimes.com/2010/09/17/us/ 17poverty.html; karin zeitvogel, african americans worse off in 2011: study, yahoo news (mar. 31, 2011), http://news.yahoo.com/s/afp/20110331/ts_ alt_afp/usminorityeconomy_20110331231509. http://www.nytimes.com/2010/09/17/us/17poverty.html http://www.nytimes.com/2010/09/17/us/17poverty.html http://news.yahoo.com/s/afp/20110331/ts_alt_afp/usminorityeconomy_20110331231509 http://news.yahoo.com/s/afp/20110331/ts_alt_afp/usminorityeconomy_20110331231509 381 global class and the commercial-sexual exploitation of children vol. 1:3 this essay has moved toward developing a concept of class to enhance critical class theory, or class crits, as a component of critical race theory. it has discussed a broad, global view of class as well as poverty in the united states, which is also a key feature of class in any nation. it intends to inspire and facilitate further examinations of class, particularly those more specific to the united states, and to better understand the ways in which race, class, gender, and childhood are constructed in a global context and how national economic processes of the united states transcend the boundaries of the nation as they shape and are shaped by global economic processes. this approach encourages examinations of law and society that engage directly with persisting patterns of socio-economic inequalities. in the alleged era of the posts, law and society continue to reproduce multidimensional inequalities based on material dispossessions along lines of race, class, gender, age, and childhood. the “post” arguments challenged here are ones that attempt to foreclose discussion along these lines. in the age of a globalizing capitalist economy, material dispossessions co-occur with ideological and intellectual attempts to discursively dispossess researchers, theorists, and practitioners of important tools with which to recognize, analyze, and articulate the full weight of problems such as human trafficking that are embedded in wider systems of subordination. in this sense, multidimensionality is antisubordination praxis. a multidimensional method of critical class analysis that maintains perspective on hegemonic power relations, which increasingly concentrate wealth and resources at the top, provides a grounded, useful and availing approach to grasping the profound inequalities within and among nations from which to build antisubordination praxis. microsoft word wadhia final (1).docx 2016 columbia journal of race and law 1 demystifying employment authorization and prosecutorial discretion in immigration cases shoba sivaprasad wadhia* on november 20, 2014, president barack obama announced a series of immigration programs aimed to reform the immigration system. deferred action for parents of americans or lawful permanent residents (dapa) and extended deferred action for childhood arrivals (daca) represent two such programs announced by the president. both programs extend deferred action (one form of prosecutorial discretion) to qualifying individuals. deferred action has been part of the immigration system for more than 50 years, and has been named explicitly by congress, federal courts, and the agencies responsible for administering immigration laws. additionally, regulations list deferred action as one basis for work authorization. the president’s deferred action programs offered room for a healthy debate about immigration law and policy. the debate was intensified by a lawsuit brought by the state of texas and 25 other states challenging the deferred action programs, and a subsequent judicial opinion enjoining these programs. much of the tension has centered on the ability for a deferred action grantee to obtain ancillary benefits like employment authorization or lawful presence. this conflict has enabled great distortion about the limits and benefits of prosecutorial discretion in immigration law. in this article, i seek to clarify the relationship between prosecutorial discretion and employment authorization and describe the historical precedent for allowing qualifying noncitizens to apply for work authorization based on a prosecutorial discretion grant. i also examine the policy questions that are raised by the current legal framework and policy for work authorization. my methodology for this article is to review the primary and secondary sources of law for prosecutorial discretion and employment authorization; analyze a related data set of more than 200,000 work authorization applications processed by the united states citizenship and immigration services retrieved through the freedom of information act; and begin a policy discussion on the benefits of enabling prosecutorial discretion beneficiaries to be authorized to work in the united states. this article is the first to analyze the law and policy of employment authorization and prosecutorial discretion and builds naturally from my body of work developed on the role of immigration prosecutorial discretion generally, and deferred action in particular. i. introduction ................................................................................................ 2 ii. understanding the law and relationship between employment authorization and prosecutorial discretion .................................... 4 a. deferred action .................................................................................... 5 b. orders of supervision ........................................................................... 7 c. parole ................................................................................................... 10 iii. examining data on employment authorization applications processed pursuant to a grant of prosecutorial discretion ....... 11 a. number of employment authorization applications processed ....... 11 b. employment authorization application decisions by gender .......... 12 2 demystifying employment authorization vol. 6.1 c. employment authorization applications and decisions by nationality ........................................................................................... 13 d. employment authorization applications and outcomes by processing center ............................................................................... 14 e. employment authorization applications and outcomes by category and year .............................................................................................. 15 f. employment authorization applications and approvals based on a deferred action grant ......................................................................... 15 g. employment authorization applications and approvals based on an order of supervision grant ................................................................. 17 h. employment authorization applications and approvals based on a parole grant ........................................................................................ 17 iv. employment authorization for prosecutorial discretion grantees: a good policy? .......................................................................... 18 a. exploring solutions ............................................................................ 23 b. political challenges to employment authorization applications ..... 24 c. operational challenges to employment authorization applications 25 v. conclusion ................................................................................................... 25 vi. appendix ........................................................................................................ 26 i. introduction this article clarifies the relationship between prosecutorial discretion and employment authorization1 and describes the historical precedent for allowing qualifying noncitizens to apply for work authorization based on a prosecutorial discretion grant. it also examines the policy questions that are raised by the current legal framework and procedure for work authorization. the methodology for this article is to review the primary and secondary sources of law for prosecutorial discretion and work authorization; analyze data sets of select work authorization applications processed by u.s. citizenship and immigration services * samuel weiss faculty scholar, clinical professor of law and director at penn state law. i am very grateful to michael a. olivas, stephen h. legomsky, steve yale-loehr, lenni benson and peter margulies for providing me with feedback on an earlier draft. i send my appreciation to the editorial staff of the cjrl and also to doyinsola aribo (‘14), vienna vasquez (‘16), and lauren holzer (‘16) for their outstanding research assistance and to penn state law for supporting my scholarship 1 throughout this article, the terms “employment authorization,” “work authorization,” and “work permit” will be used interchangeably. 2016 columbia journal of race and law 3 (“uscis”) retrieved through the freedom of information act (“foia”); and begin a policy discussion on the benefits of enabling prosecutorial discretion beneficiaries to be authorized to work in the united states. this article will analyze the law and policy of work permits and prosecutorial discretion and builds naturally from a body of work developed on the role of immigration prosecutorial discretion generally, and deferred action in particular.2 the exercise of prosecutorial discretion is an important feature in the immigration system. it requires each department of homeland security (“dhs”) component to make decisions about whether a person legally eligible for immigration enforcement should still be allowed to reside in the united states on a temporary basis. prosecutorial discretion recognizes that in a universe of limited resources, an individual or group may qualify as a “low priority” for enforcement and/or bear the kinds of qualities that are unsuitable for removal.3 this discretion functions as a form of protection from removal but provides no formal legal status.4 there are several kinds of prosecutorial discretion in immigration law, but only a few of these forms offer the possibility of work authorization. for the vast majority of individuals living in the united states without a legal status but protected through a form of prosecutorial discretion, there is no independent basis for work. on november 20, 2014, president barack obama announced a catalogue of immigration programs aimed to administratively reform the system through a combination of rulemaking and policy guidance. three of those policy changes include deferred action for parents of americans and lawful permanent residents (dapa), an extension of deferred action for childhood arrivals (daca), and parole for certain entrepreneurs.5 these programs extend deferred action or parole, which are both forms of prosecutorial discretion, to qualifying individuals, providing the possibility for work authorization. parole has been part of the immigration system since at least the early 1900s and has been codified in the immigration statute designed by congress and regulations.6 deferred action has been part of the immigration system for more than fifty years, and is featured in the immigration statute, federal court decisions, regulations, and agency 2 shoba sivaprasad wadhia, beyond deportation: the role of prosecutorial discretion in immigration cases (2015); shoba sivaprasad wadhia, immigration remarks for the 10th annual wiley a. branton symposium, 57 how. l.j. 931, 933 (2014) (discussing examples of prosecutorial discretion); shoba sivaprasad wadhia, my great foia adventure and discoveries of deferred action cases at ice, 27 geo. immigr. l.j. 345, 345-385 (2013); shoba sivaprasad wadhia, in defense of daca, deferred action, and the dream act, 91 texas l. rev. 59 (2013); shoba sivaprasad wadhia, sharing secrets: examining deferred action and transparency in immigration law, 10 u. n.h. l. rev. 1 (2012); shoba sivaprasad wadhia, the role of prosecutorial discretion in immigration law, 9 conn. pub. int. l.j. 243 (2010). 3 see, e.g., memorandum from jeh charles johnson, sec’y, u.s. dep’t of homeland sec., to thomas s. winkowski, acting dir., u.s. immigration and customs enforcement et al. on policies for the apprehension, detention and removal of undocumented immigrants (nov. 20, 2014), http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf [hereinafter jeh charles johnson memorandum]; memorandum from john morton on exercising prosecutorial discretion consistent with the civil immigration enforcement priorities of the agency for the apprehension, detention, and removal of aliens, u.s. immigration and customs enforcement, 3 (june 17, 2011), http://www.ice.gov/doclib/securecommunities/pdf/prosecutorial-discretion-memo.pdf [hereinafter john morton memorandum]. 4 see e.g., memorandum from karl thompson, principal deputy assistant attorney gen. to the sec'y of homeland sec. and the counsel to the president on the dep't of homeland sec. authority to prioritize removal of certain aliens unlawfully present in the united states and to defer removal of others (nov. 19, 2014), http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritizeremoval.pdf [hereinafter karl thompson memorandum] (“deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship.”); letter from scholars and teachers of immigration law on the executive actions announced by the president on november 20, 2014 (mar. 13, 2015), https://pennstatelaw.psu.edu/_file/lawprofltrhanenfinal.pdf [hereinafter letter from scholars and teachers] (describing the difference between lawful presence and lawful status in the immigration context). 5 u.s. citizenship and immigration services, executive actions on immigration, http://www.uscis.gov/immigrationaction (last visited nov. 10, 2015). 6 see, e.g., 8 u.s.c. § 1182(d)(5)(a) (2013); 8 c.f.r. § 212.5 (2011). 4 demystifying employment authorization vol. 6.1 memoranda.7 qualifying grantees of deferred action or parole may qualify for additional benefits, like lawful presence and work authorization, both of which are detailed in a later section of this article.8 much of the tension around the president’s deferred action programs has centered on the ability for a possibly large class of individuals to receive work authorization on the basis of a deferred action grant. the politics of deferred action and work authorization peaked when texas and 25 other states challenged the legality of these deferred action programs.9 consequently, u.s. district court judge andrew hanen for the southern district of texas placed the extended daca and dapa programs on hold.10 the deferred action programs continued to be criticized by the plaintiffs, judges, and amicus curiae briefs.11 meanwhile, the department of justice has maintained that eligibility to apply for work authorization flows from deferred action and pre-dates the announcements made by president obama in 2014.12 ii. understanding the law and relationship between employment authorization and prosecutorial discretion a review of the immigration statute and regulations that govern work authorization for immigrant populations generally and prosecutorial discretion beneficiaries in particular reveals that standard administrative law principles apply: statutory delegation, deference to agency interpretations when statutes are ambiguous, notice and comment rulemaking, and so on. congress has delegated to dhs the legal authority for issuing work authorization to noncitizens; the immigration and nationality act (“ina”), as provided in title 8 u.s.c. § 1103(a)(1) vests in the secretary of homeland security the power to administer and enforce the ina and related laws,13 and provides dhs with the authority to establish regulations and policies to carry 7 8 u.s.c. § 1103(a)(1) (2015) (“charging the secretary of homeland security with the administration and enforcement of this act and all other laws relating to the immigration and naturalization of aliens”); arizona v. united states, 132 s. ct. 2492, 2499 (2012) (stating that "[a] principal feature of the removal system is the broad discretion exercised by immigration officials . . . federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”). see employment authorization to aliens in the united states, 46 fed. reg. 25079-03, 25081 (may 5, 1981). see also 8 c.f.r. § 274a.12(c)(14) (2015) (“an alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment”). 8 see infra section ii. 9 united states v. texas, scotusblog (last visited jan. 26, 2016), http://www.scotusblog.com/case-files/cases/unitedstates-v-texas/. 10 suzanne gamboa, legal experts: ruling blocking immigration action 'deeply flawed', nbc news, mar. 13, 2015, http://www.nbcnews.com/news/latino/experts-texas-judges-immigration-action-ruling-deeply-flawed-n322751. 11 see plaintiffs’ opposition to motion for stay pending appeal at 12, texas v. united states, 787 f.3d 733 (5th cir. 2015) (no. 15-40238) (internal quotations omitted), http://images.politico.com/global/2015/03/23/txoppstayca5.pdf (stating that "dapa rewrites the immigration laws in multiple ways. first, it confers benefits the executive is not authorized to confer. in particular, the executive cannot unilaterally grant lawful presence, work permits, and a host of other benefits to 40% of the unauthorized aliens in the u.s. such unlawful action cannot be papered over as enforcement discretion."). 12 see, e.g., brief for the appellants at 46, texas v. united states 787 f.3d 733 (5th cir. 2015) (no. 15-40238) 2015 wl 1611821 at *46 (internal citations omitted) (indicating that the "district court also erred in concluding that the 2014 guidance establishes a new right to work lawfully in the united states. aliens accorded deferred action may be authorized to work if they apply for employment authorization, pay the necessary processing fees, and establish an economic necessity for employment. but that is the result of a 1981 regulation that makes all aliens accorded deferred action eligible to apply for work authorization. it is that long established regulation, not the 2014 guidance that permits aliens accorded deferred action to apply for employment authorization. that regulation went through an extended process of notice and public comment before its adoption, in conformity with the apa."). 13 8 u.s.c. § 1103(a)(1) (2015) (“charging the secretary of homeland security with the administration and enforcement of this act and all other laws relating to the immigration and naturalization of aliens”). 2016 columbia journal of race and law 5 out the provisions of the ina.14 moreover, 8 u.s.c. § 1324a(h)(3) defines an “unauthorized alien” for employment purposes as a person who is neither an lpr nor “authorized to be …employed by [the ina] or by the attorney general [now secretary of homeland security].15 this language, “or by the secretary of homeland security,” has served as at least one statutory basis for dhs to name people who could work, and congress has placed no cap on the number of work permits that may be issued. a. deferred action formerly called “non-priority” status, deferred action is one form of prosecutorial discretion that was revealed publicly in the 1970s in connection with the immigration case of former beatle, john lennon.16 deferred action functions as a form of non-enforcement because it defers or places a hold on the deportation of the individual.17 dhs can process and grant deferred action to an individual at any stage of the immigration process, including but not limited to the point of arrest, before detention, before a removal proceeding, and after a removal order has been entered.18 while the history is rich, deferred action remains opaque for attorneys unfamiliar with how to make a request, as there is no current form, fee, or public information about how to apply except for the daca program.19 one internal document, obtained through foia in 2013, instructs that deferred action requests to uscis be made in writing and signed by the 14 8 u.s.c. § 1324a(h)(3) (2015). 15 for example, in a rule pertaining to the eligibility for spouses of h-1b workers to be authorized to work, the government relied on 8 u.s.c. § 1324(h)(3), stating that “[t]he authority of the secretary of homeland security (secretary) for this regulatory amendment can be found in section 102 of the homeland security act of 2002, public law 107–296, 116 stat. 2135, 6 u.s.c. 112, and section 103(a) of the immigration and nationality act (ina), 8 u.s.c. 1103(a), which authorize the secretary to administer and enforce the immigration and nationality laws. in addition, section 274a(h)(3)(b) of the ina, 8 u.s.c. 1324a(h)(3)(b), recognizes the secretary’s authority to extend employment to noncitizens in the united states.” employment authorization for certain h–4 dependent spouses, 80 fed. reg. 10284 (feb. 25, 2015) (to be codified at 8 c.f.r 214, 274(a). some critics have argued that all § 1324a(h)(3) does is authorize dhs to grant work permits to those noncitizens for whom the statute independently provides permission to work. see, e.g., jan ting, center for immigration studies, president obama’s “deferred action” program for illegal aliens is plainly unconstitutional, 13 (2014) (citing john c. eastman, president obama’s “flexible” view of the law: the dream act as case study, roll call aug. 28, 2014, http://www.rollcall.com/news/obamas-flexibleview-of-the-law-the-dream-act-as-case-study-235892-1.html). but such a reading of the statute would render the term “or the attorney general” and several statutory provisions that preclude work permits for specific classes of noncitizens superfluous. see hearing before the u.s. h. comm. on the judiciary, 114th cong. (2015) (statement of stephen h. legomsky,john s. lehmann univ. professor, washington univ. sch. of law) https://lofgren.house.gov/uploadedfiles/legomsky_testimony.pdf. 16 leon wildes, the nonpriority program of the immigration and naturalization service goes public: the litigative use of the freedom of request act, 14 san diego l. rev. 42, 44-47 (1976); shoba sivaprasad wadhia, beyond deportation: the role of prosecutorial discretion in immigration cases 14 (2015). 17 see, e.g., karl thompson memorandum, supra note 4 (stating that “[g]rants of deferred action under the proposed programs would, rather, represent dhs’s decision not to seek an alien’s removal for a prescribed period of time.”); see also shoba sivaprasad wadhia, the history of prosecutorial discretion in immigration law, 64 am. u. l. rev. 1285 (2015). 18 see, e.g., jeh charles johnson memorandum, supra note 3; memorandum from doris meissner, comm’r, immigration and naturalization serv., on exercising prosecutorial discretion (nov. 17, 2000), http://www.legalactioncenter.org/sites/default/files/docs/lac/meissner-2000-memo.pdf; shoba sivaprasad wadhia, beyond deportation: the role of prosecutorial discretion in immigration cases (2015). 19 see, e.g., shoba sivaprasad wadhia, standard operating procedure for deferred action (non-daca), selected works of shoba sivaprasad wadhia (2015), http://works.bepress.com/shoba_wadhia/36/; see generally shoba sivaprasad wadhia, beyond deportation: the role of prosecutorial discretion in immigration cases, ch. 4, 7, 8 (2015). 6 demystifying employment authorization vol. 6.1 requestor, along with an explanation for why deferred action is being sought, supporting documentation, proof of identity and nationality, among other requirements.20 as stated previously, deferred action is not a legal status, but it is a precious form of protection because it enables a person to reside in the united states without fear of immediate deportation.21 deferred action has been explicitly named in the immigration statute22 and federal court decisions,23 including the u.s. supreme court.24 importantly, the regulations developed by former immigration and naturalization service (“ins”) and inherited by dhs specifically list deferred action as a basis for work authorization.25 the legal authority behind granting work authorization to deferred action beneficiaries was eloquently expressed by professor stephen h. legomsky in his testimony before the u.s. house of representatives committee on the judiciary: “in continuing to grant work permits to deferred action recipients who can demonstrate economic necessity, uscis is exercising a discretionary power expressly granted by congress, incorporated into the formal regulations, and in active use for more than three decades.”26 a similar analysis was expressed in the department of justice’s office of legal counsel (olc) opinion: “under longstanding regulations and policy guidance promulgated pursuant to statutory authority in the ina, deferred action recipients may receive two additional benefits.…relying on dhs’s statutory authority to authorize certain aliens to work in the united states, dhs regulations permit recipients of deferred action to apply for work authorization if they can demonstrate an ‘economic necessity for employment.’”27 for some deferred action programs, dhs has also provided some instructions to applicants about their eligibility to apply for employment authorization pursuant to a deferred action grant.28 likewise, the “frequently asked questions” document (“faq”) created by uscis for daca explicitly rests the authority for work authorization on the regulatory framework outlined above, namely title 8 of the code of federal regulations. the faq states in part: 20 letter from shoba sivaprasad wadhia, clinical professor and director of center for immigrants’ rights, to uscis in re foia request (may 24, 2013), https://pennstatelaw.psu.edu/_file/immigrants/foia_may_2013.pdf. a more elaborate description of deferred action can be found in previous work and will not be repeated here. see, e.g., shoba sivaprasad wadhia, sharing secrets: examining deferred action and transparency in immigration law, 10 u. n.h. l. rev. 1 (2012); shoba sivaprasad wadhia, beyond deportation: the role of prosecutorial discretion in immigration cases, 55-57 (2015). 21 see, e.g., karl thompson memorandum, supra note 4; letter from immigration law teachers and scholars to president obama (sept. 3, 2014), https://pennstatelaw.psu.edu/_file/law-professor-letter.pdf; letter from immigration law teachers and scholars (nov. 25, 2014), https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/immigrants/executive-action-law-prof-letter.pdf. 22 see, e.g., deportable aliens, 8 u.s.c. § 1227(d)(4). 23 see generally soon bok yoon v. ins, 538 f.2d 1211, 1213 (5th cir. 1976); see also vergel v. ins, 536 f.2d 755 (8th cir. 1976); david v. ins, 548 f.2d 219 (8th cir. 1977); nicholas v. ins, 590 f.2d 802 (9th cir. 1979). 24 see, e.g., reno v. am.-arab anti-discrimination comm., 525 u.s. 471, 483-4 (1999) (“at each stage the executive has discretion to abandon the endeavor, and at the time iirira was enacted the ins had been engaging in a regular practice (which had come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons or simply for its own convenience.”). 25 8 c.f.r. § 274a.12(c)(14) (2015) (stating that “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment”). see also employment authorization to aliens in the u.s., 46 fed. reg. 25079-03, 25081 (may 5, 1981). 26 hearing, supra note 15 (statement of stephen h. legomsky, john s. lehmann univ. professor, washington univ. sch. of law). 27 karl thompson memorandum, supra note 4. 28 see, e.g., press release, u.s. citizen and immigration services, uscis announces interim relief for foreign students adversely impacted by hurricane katrina (nov. 25, 2005), http://www.uscis.gov/sites/default/files/files/pressrelease/f1student_11_25_05_pr.pdf (“katrina-impacted foreign academic students not covered by the notice and their dependents (f-2 visa holders) may request deferred action and apply for employment authorization based on economic necessity.”). 2016 columbia journal of race and law 7 q4: if my removal is deferred under the consideration of daca, am i eligible for employment authorization? a4: yes. under existing regulations, if your case is deferred, you may obtain employment authorization from uscis provided you can demonstrate an economic necessity for employment.29 beyond the possibility of work authorization, a grant of deferred action enables a person have a “lawful presence” in the united states for the period during which her deportation is deferred.30 the distinction between a formal “legal status” and treating one as “lawfully present” is an important one, and has been recently misunderstood by critics.31 lawful presence preserves the ability for a person to depart the united states and seek admission in the future without triggering one of the “unlawful presence” bars.32 even though deferred action while in effect can cure a person’s presence, the period in deferred action does not cure previous periods of unlawful presence.33 like with all forms of prosecutorial discretion, deferred action does not confer a formal legal status and is revocable at any time.34 by contrast, “legal status” provides legal security, a substantive right or benefit, and a possible means for permanent status in the united states.35 as explained by the department of justice’s olc opinion: this difference [between lawful presence and legal status] is not, in our view, insignificant. but neither does it fundamentally transform deferred action into something other than an exercise of enforcement discretion: as we have previously noted, deferred action confers no lawful immigration status, provides no path to lawful permanent residence or citizenship, and is revocable at any time in the agency’s discretion.36 b. orders of supervision an “order of supervision” (“osup”) is another form of prosecutorial discretion in immigration law.37 unlike deferred action, which can be granted or processed at any stage of immigration enforcement, an 29 8 c.f.r. § 274a.12(c)(14) (2015); u.s. citizenship & immigration services, frequently asked questions, http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-askedquestions (last visited feb. 10, 2016). 30 memorandum from donald neufeld, acting associate dir., u.s. immigration and customs enforcement et al., on consolidation of guidance concerning unlawful presence for purposes of sections 212(a)(9)(b)(i) and 212(a)(9)(c)(i)(i) of the act to field leadership, 42 (may 6, 2009), http://www.uscis.gov/sites/default/files/uscis/laws/memoranda/static_files_memoranda/2009/revision_redesign _afm.pdf [hereinafter donald neufeld memorandum]. 31 see, e.g., anil kalhan, deferred action, supervised enforcement discretion, and the rule of law basis for executive action on immigration, 63 ucla l. rev. discourse 58 (2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2596049 (discussing that critics of the president often conflate legal status and lawful presence); letter from scholars and teachers, supra note 4 at 4 (describing the difference between lawful presence and status). 32 see, e.g., 8 u.s.c §§ 1182(a)(9)(b)(i)(i)-(ii) (outlining that individuals without lawful presence will be denied reentry into the country). 33 see, e.g., donald neufeld memorandum, supra note 30, at 4. 34 jeh charles johnson memorandum, supra note 3. 35 see, e.g., letter from scholars and teachers, supra note 4, at 4 (indicating judge hanen overlooked the difference between lawful presence and legal status). 36 karl thompson memorandum, supra note 4. 37 8 u.s.c. § 1231(a)(3) (2006) (“supervision after 90-day period”); see also memorandum from julie l. myers, assistant secretary on prosecutorial and custody discretion to all field office directors and all special agents in charge (nov. 7, 2007), https://www.ice.gov/doclib/foia/prosecutorial-discretion/custody-pd.pdf; u.s. immigration and customs 8 demystifying employment authorization vol. 6.1 order of supervision may be processed after the government orders removal.38 an osup may be issued by dhs after a person has been ordered removed through a truncated procedure like reinstatement,39 administrative removal,40 or after a court procedure that ends with a removal order by a judge in the department of justice.41 a spectrum of noncitizens may receive an order of supervision. individuals granted withholding of removal42 or protection under the u.n. convention against torture (“cat”)43 and protected in the united states, if in custody, may be released on an order of supervision. likewise, a person held in custody but unable to be removed because of a country’s refusal to issue a travel document may be released on an order of supervision.44 in some of these situations, release on an order of supervision may be required in order to comply with due process.45 outside of these contexts, immigration and customs enforcement’s (“ice”) choice to issue an order of supervision to individuals residing in the united states with a removal order is an act of prosecutorial discretion.46 the immigration statute explicitly permits dhs to provide work authorization to noncitizens who have already been ordered removed.47 furthermore, the regulations developed by former ins and inherited by current dhs specifically list orders of supervision as a basis for work authorization. the regulation reads: an alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the act may be granted employment authorization in the discretion of the district director only if the alien cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the act to receive the alien, or because the removal of the alien is otherwise impracticable or contrary to the public interest. additional factors which may be considered by the district director in adjudicating the application for employment authorization include, but are not limited to, the following: (i) the existence of economic necessity to be employed; enforcement, tool kit for prosecutors (2011), https://www.ice.gov/doclib/about/offices/osltc/pdf/tool-kitfor-prosecutors.pdf; jeh charles johnson memorandum, supra note 3; letter from law professors to president barack obama, 2-3, (sept. 3, 2014), https://pennstatelaw.psu.edu/_file/law-professor-letter.pdf. 38 8 u.s.c. § 1231(a)(3) (“supervision after 90-day period”). 39 8 u.s.c. § 1231(a)(5) (“reinstatement of removal orders against aliens illegally reentering”). 40 8 u.s.c. § 1228(b) (“removal of aliens who are not permanent residents”). see generally shoba sivaprasad wadhia, the rise of speed deportation and the role of discretion, 5 colum. j. race & l. 1, 7-10 (2014) (presenting a background on speed deportation removal procedures). 41 8 u.s.c. § 1229; 8 c.f.r. § 1240.41; 8 c.f.r. § 1241.1(describing when an order of removal becomes final once a person has gone through removal proceedings before an immigration judge). 42 see 8 u.s.c. § 1231 (b)(3) (2006) (“supervision after 90-day period. if the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the attorney general…”). 43 see 8 c.f.r. § 208.18 (2009), for provisions of u.s. regulations relating to the convention against torture. 44 see 8 c.f.r. § 241.13 (a), (h); see also letter from catrina m. pavlik-keenan, foia officer, u.s. immigration and customs enforcement, to author (may 1, 2015), http://works.bepress.com/shoba_wadhia/33/ 45 see e.g., zadvydas v. davis, 533 u.s. 678, 679 (2001) (noting that “[t]he post-removal-period detention statute, read in light of the constitution's demands, implicitly limits an alien's detention to a period reasonably necessary to bring about that alien's removal from the united states, and does not permit indefinite detention…a statute permitting indefinite detention would raise serious constitutional questions. freedom from imprisonment lies at the heart of the liberty protected by the due process clause.”). 46 8 u.s.c. § 1231(a)(3) (2006) (“supervision after 90-day period”). 47 8 u.s.c. § 1231(a)(7) (permitting the attorney general under certain narrow circumstances to grant work authorization to aliens who have received final orders of removal but cannot be removed). 2016 columbia journal of race and law 9 (ii) the existence of a dependent spouse and/or children in the united states who rely on the alien for support; and (iii) the anticipated length of time before the alien can be removed from the united states.48 beyond the primary sources of law, ice policy documents detail the procedures for orders of supervision.49 while an order of supervision grant can protect a person from removal and is anchored with the possibility of work authorization, this form of discretion is not as precious as deferred action because it does not provide for a period of lawful presence and, in many cases, requires the beneficiary to report to a local immigration enforcement office.50 the conditions may also include geographic limitations on where the individual can reside while under supervision and restrictions on the individual’s freedom, such as an electronic monitoring bracelet.51 ice data provides that an alien may be released on an order of supervision according to the following guidelines: a. process is typically handled by ero [enforcement removal operations] b. alien has been held in detention and has final order of removal: i. in process of acquiring travel documents, or ii. granted deferred action (for example, for humanitarian reasons), or iii. travel documents are not forthcoming in the reasonably foreseeable future so alien cannot be held in detention any longer, based on post order custody review (pocr). 52 ice’s data also indicates that the form 220-b used to process orders of supervision may typically contain the following information regarding conditions: • reporting frequency • requirement to provide details on activities and associations and any other information ice considers appropriate • travel restrictions — notification for travel outside specified boundaries for more than 48 hours • compliance with conditions of parole or probation for any criminal charge.53 internal guidance from ice also reveals that noncitizens may be required to pay a bond as a condition of their release on an order of supervision.54 individuals who fail to comply with an order of supervision can be taken back into custody.55 in all of these ways, a release on an order of supervision is more limiting than a grant of deferred action. 48 8 c.f.r. § 274a.12(c)(18) (2015). 49 ice provided the author with 107 pages of information pertaining to the agency’s internal policies and procedures relating to orders of supervision. see generally letter from catrina m. pavlik-keenan, foia officer, u.s. immigration and customs enforcement, to author (may 1, 2015), http://works.bepress.com/shoba_wadhia/33/ (describing alternatives to detention and electronic monitoring guidelines for released aliens). 50 see, e.g., id.; see also geoffrey hereen, the status of nonstatus, 64 am. u. l. rev. 1115, 1116 (2015). 51 letter from catrina m. pavlik-keenan, supra note 49. see generally memorandum by gary mead to field office directors on orders of supervision, immigration and customs enforcement (sep. 28, 2006), http://www.ice.gov/doclib/foia/dro_policy_memos/ordersofsupervisionsep282006.pdf (outlining ice’s own policy and procedure for processing orders of supervision in 2006); see also geoffrey hereen, the status of nonstatus, 64 am. u. l. rev. 1115, 1146-48 (2015) (describing how an order of supervision perpetuates the “nonstatus” of thousands of persons living in the united states). 52 letter from catrina m. pavlik-keenan, supra note 49. 53 id. 54 id. 55 8 c.f.r. § 241.4(l) (2015). 10 demystifying employment authorization vol. 6.1 c. parole parole is a long-established concept in immigration law and was first codified by congress in 1952.56 the immigration statute defines parole: (a) the attorney general may, …in his discretion parole into the united states temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the united states, but such parole of such alien shall not be regarded as an admission … (b) the attorney general may not parole into the united states an alien who is a refugee unless the attorney general determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the united states rather than be admitted as a refugee under section 1157 of this title.57 the regulations elaborate the bases for parole.58 furthermore, federal regulations provide that an alien paroled into the united states temporarily for emergency reasons or reasons may apply for employment authorization.59 finally, dhs has published internal guidelines and public memoranda on different forms of parole, all of which emanate from the above-stated statutory and regulatory framework.60 parole in place, or “pip,” is another tool available to the spouses, parents and children of military members seeking to adjust status in the united states.61 in november 2014, and as part of his executive actions on immigration, president barack obama advised uscis to create a parole program aimed at entrepreneurs: … [t]o inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial u.s. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research. parole in this type of circumstance would allow these individuals to temporarily pursue research 56 8 u.s.c. § 1182(d)(5)(a) (2013). 57 8 u.s.c. § 1182(d)(5)(a) (2013). 58 8 c.f.r. § 212.5 (2011). 59 8 c.f.r. § 274a.12(c)(11)(2015) (describing categories of aliens who must apply for employment authorization and providing that “[a]n alien paroled into the united states temporarily for emergency reasons or reasons deemed strictly in the public interest pursuant to § 212.5 of this chapter.”). 60 in response to foia request from the author about policies relating to parole, uscis produced 77 pages of information, including the standard operating procedure for “parole in place.” memorandum from shoba sivaprasad wadhia on uscis documents on parole to interested parties, (jan. 28, 2015), http://works.bepress.com/cgi/viewcontent.cgi?article=1060&context=shoba_wadhia; see generally shoba sivaprasad wadhia, beyond deportation, the role of prosecutorial discretion in immigration cases, 27 (2015) (providing a history of parole in the immigration context); see also david a. martin, a defense of immigration-enforcement discretion: the legal and policy flaws in kris kobach’s latest crusade, 122 yale l.j. online 167 (2012), http://yalelawjournal.org/forum/a-defense-of-immigration-enforcement-discretion-the-legal-and-policy-flaws-in-kriskobachs-latest-crusade (describing how parole has operated historically). 61 policy memorandum, u.s. citizenship and immigration services, parole of spouses, children and parents of active duty members of the u.s. armed forces, the selected reserve of the ready reserve, and former members of the u.s. armed forced or selected reserve of the ready reserve and the effect of parole on inadmissibility under immigration and nationality act § 212(a)(6)(a)(i) (nov. 15, 2013), http://www.uscis.gov/sites/default/files/uscis/laws/memoranda/2013/2013-1115_parole_in_place_memo_.pdf. 2016 columbia journal of race and law 11 and development of promising new ideas and businesses in the united states, rather than abroad.62 like with those who are granted deferred action, an individual granted parole is treated as “lawfully present,”63 but provides no formal legal status.64 iii. examining data on employment authorization applications processed pursuant to a grant of prosecutorial discretion as the preceding discussion showed, the legal foundation for dhs to provide work authorization to certain noncitizens who otherwise lack a formal legal status is clear. a second and important question is whether the law itself has been applied. this section analyzes a data set of 233,245 work permit applications processed with receipt dates ranging from june 19, 1990 through october 20, 2014 on the following three bases: parole, deferred action and order of supervision.65 a. number of employment authorization applications processed in 2014, ice data included 233,245 work authorization applications pursuant to parole, deferred action, or an order of supervision.66 of this number, 202,619 or 87% of applications were approved.67 this data reveals the prevalent adjudication of work authorization applications based on a grant of prosecutorial discretion and the degree to which applications for employment by uscis are pending, denied, or closed (canceled), even where the applicant has been granted relief in the form of prosecutorial discretion. 62 infographic: president obama is taking steps to fix our broken immigration system, the white house (nov. 20, 2014), https://www.whitehouse.gov/share/infographic-president-obama-taking-steps-fix-our-broken-immigration-system. 63 donald neufeld memorandum, supra note 31. 64 martin, supra note 60. 65 in response to a foia request, uscis sent the author data set that covers applications with receipt dates ranging from june 19, 1990 through october 20, 2014. the letter stated in part: “requester seeks information about form i-765, application for employment authorization-class preference c11 (parole) 8 c.f.r. 274a.12(c)(11); c14 (deferred action granted) 8 c.f.r. 274a.12(c)(14); c18 (order of supervision) 8 c.f.r. 274a.12(c)(18) maintained by uscis since august 1, 2013. each application 1. nationality or country of birth 2. gender 3. age 4. whether the applicant has legal counsel or a form g-28 on file 5. time between the receipt date on an application and a decision 6. whether the application was approved or denied if available, include comments or written factors explaining why an application was denied or granted.” letter from shoba sivaprasad wadhia to foia officer, u.s. citizenship and immigration services (sept. 24, 2014) (on file with author). 66 letter and response from jill a. eggleston, foia operations dir., u.s. citizenship and immigration services, to author (dec. 30, 2014) (on file with author) [hereinafter employment authorization data]. 67 id. 12 demystifying employment authorization vol. 6.1 table 1: application decisions decision total percentage admin closed 1,234 0% approved 202,619 87% denied 14,073 6% pending 15,319 7% b. employment authorization application decisions by gender in reviewing the application decisions by gender, out of the total 233,245 applications, 117,768 of the applicants approved were female, while 84,492 of the applicants approved were male.68 one possibility for this difference is that a significant portion of those seeking work authorization pursuant to a deferred action grant are women who have been granted protection under the violence against women act (vawa) selfpetition or conditionally approved for protection as a victim of crime (u-visa).69 available to both men and women, the vawa self petition and u-visa are two remedies existing under the immigration law for victims. whereas the vawa self-petition is limited to certain parents, children and spouses who have suffered abuse at the hands of a united states citizen or lawful permanent resident, the u-visa is available to victims of a wide-range of crimes and without regard to the legal status of the abuser.70 persons who satisfy the qualifications for a vawa self-petition or u-visa during a fiscal year during which the statutory caps have already been reached are provided deferred action as a temporary form of protection.71 68 id. 69 when uscis adjudicates a u-visa or vawa self-petition in year during which the statutory cap has already been reached, the case is conditionally approved until the following year and the applicant is placed in a deferred action status during this period. see e.g., william a. kandel, cong. research serv., r42477, immigration provisions of the violence against women act (vawa) (2012), www.fas.org/sgp/crs/misc/r42477.pdf (“if the i-360 petition is ultimately approved, the foreign national is granted deferred action status, a “quasi” status and administrative act that halts actions to remove the individual from the united states for a renewable period of time.”); u.s. citizenship and immigration services, victims of criminal activity: u nonimmigrant status, http://www.uscis.gov/humanitarian/victimshuman-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-unonimmigrant-status (last visited feb. 11, 2016) (“if the cap is reached before all u nonimmigrant petitions have been adjudicated, uscis will create a waiting list for any eligible principal or derivative petitioners that are awaiting a final decision and a u-visa. petitioners placed on the waiting list will be granted deferred action or parole and are eligible to apply for work authorization while waiting for additional u-visas to become available.”); shoba sivaprasad wadhia, beyond deportation: the role of prosecutorial discretion in immigration cases, 61-62 (2015). 70 see victims of trafficking and violence protection act of 2000, 22 u.s.c. § 7105(b)(1)(b)(i) (2000); 8 u.s.c. §§ 1154(a)(1)(a)(v)-(vii); 8 u.s.c. § 1101(a)(15)(u). 71 u.s. citizenship and immigration services, supra note 69; see also, karl thompson memorandum, supra note 4, at 15. see also shoba sivaprasad wadhia, beyond deportation: the role of prosecutorial discretion in immigration cases 62 (2015), for a historical account of the types of individuals and groups who have qualified for deferred action. 2016 columbia journal of race and law 13 table 2: application decisions by gender decision female applicants male applicants admin closed 634 591 approved 117,768 84,492 denied 7,796 6,208 pending 8,018 7,244 c. employment authorization applications and decisions by nationality in looking specifically at nationality, the largest share of work authorization applications were made by nationals of mexico, cuba, guatemala, el salvador, and honduras. 83,189 of the applicants were mexican; 68,556 of the applicants were cuban; 8,078 of the applicants were guatemalan, 6,739 of the applicants were el salvadoran; and 6,564 of the applicants were honduran.72 more than 74% of the total number of work authorization application processed was represented by these five nationalities.73 with the exception of cuba, nationals from the remaining four countries resemble the largest share of the unauthorized population overall.74 moreover, nationals from mexico, guatemala, honduras, and el salvador represent the largest number of removals by dhs. nationals from these four countries represented 419,158 (96%) of 438,421 removals in 2013.75 thus, as these nationals, mexicans in particular, appear to benefit greatly from prosecutorial discretion decisions under which work authorization is a possibility, the rate of removal is far greater and, in the big picture, presents an enforcement-heavy policy against these populations. to illustrate this point, the annual statistics maintained by dhs reveal that 69% of the total undocumented population comes from mexico, guatemala, el salvador, and honduras, while more than 90% of those deported in the same year were nationals of these same four countries.76 72 employment authorization data, supra note 66. 73 id. 74 see migration policy institute, profile of unauthorized population: united states, (last visited oct. 26, 2015), http://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/us (estimates from migration policy institute indicate that mexican nationals comprise of 58% of the unauthorized population, followed by guatemala (6%), el salvador (3%) and honduras (2%)). 75 see, e.g., john f. simanski, department of homeland security, office of immigration statistics, annual report, immigration enforcement actions: 2013 (sep. 2014), http://www.dhs.gov/sites/default/files/publications/ois_enforcement_ar_2013.pdf. 76 id. 14 demystifying employment authorization vol. 6.1 table 3: application decisions by top 5 most represented countries country admin closed approved denied pending mexico 272 71,034 5,284 6,599 cuba 282 64,742 1,222 2,310 guatemala 24 6,204 787 1,063 el salvador 36 5,035 724 944 honduras 20 5,100 543 901 d. employment authorization applications and outcomes by processing center looking specifically at decisions by processing unit, the largest number of applications were processed and approved by the national benefits center (“msc”) and vermont service center (“vsc”).77 msc is located in lee’s summit, missouri, and is responsible for preparing applications for adjudication that require an interview at a uscis field office.78 vsc is located in st. albans, vermont, and is one of uscis’ four regional service centers.79 table 4: application decisions by service centers80 service center admin closed approved denied pending csc 4 36 12 103 msc 893 106,101 7,169 6,512 nsc 26 761 78 454 tsc 10 228 61 384 vsc 301 95,493 6,753 7,866 77 employment authorization data, supra note 66. 78 uscis blog team, the national benefits center: what it is and what it does, the beacon: the official blog of the uscis (june 5, 2012, 3:11 pm), http://blog.uscis.gov/2012/06/national-benefits-center-what-it-is-and.html. 79 uscis service and office locator, st. albans, vermont service center, u.s. citizenship and immigration services, https://www.uscis.gov (follow “find a uscis office” hyperlink; then follow “service centers and our national benefit center” hyperlink; then choose “vermont” from “find your offices by state” section; then follow “vermont service center” hyperlink). 80 see u.s. citizenship and immigration services, uscis service and officer locator, https://egov.uscis.gov/crisgwi/go?action=offices.type&officelocator.office_type=sc (last visited mar. 2, 2016) (describing the various service centers). the full name of each abbreviated service center is as follows: csc, california service center; msc, national service center; nsc, nebraska service center; tsc, texas service center; vsc, vermont service center. 2016 columbia journal of race and law 15 e. employment authorization applications and outcomes by category and year within this set, 48,692 (21%) applications were based on c18, or order of supervision (“osup”); 114,563 (49%) of the applications were based on c14, or deferred action (“da”); and 69,990 (30%) applications were based on c11, or parole.81 table 5: employment authorization document basis basis applicants percentage c11 (parole) 69,990 30% c14 (da) 114,563 49% c18 (osup) 48,692 21% f. employment authorization applications and approvals based on a deferred action grant recent and great attention has been paid to deferred action recipients who apply for work authorization on the basis of economic necessity. as described in the previous section, the statutory and regulatory basis for providing work authorization to qualifying individuals spans more than three decades and pre-dates the deferred action programs announced by president obama in 2012 and 2014.82 from 2012 through 2014, there was a sharp increase in applications for non-daca deferred action. in the deferred action program, work authorization applications on this basis jumped from 4,094 in 2012 to 23,267 in 2014.83 a greater number of pending vawa or u-visa applications for which deferred action and work authorization is available in the interim and the greater visibility of the general deferred action program by the public and attorneys in the wake of the daca may explain this fivefold increase. after president obama announced the daca program, attorneys, policymakers, and community members were engaged in the legal authority for the various types of prosecutorial discretion and the legal underpinnings of daca.84 for example, the faq guide that accompanied the daca program included this question and answer about deferred action: q1: what is deferred action? a1: deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. for purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. an individual who has received deferred action is authorized by dhs to be present in the united states, and is therefore considered by dhs to be lawfully present during the period deferred action is in 81 employment authorization data, supra note 66. 82 see 8 u.s.c. §1324(a)(h)(3) (2015); 8 c.f.r. §274a.12(c) (2015); karl thompson memorandum supra note 4, at 3-7; letter from law professors to president barack obama, 2-3, (sept. 3, 2014), https://pennstatelaw.psu.edu/_file/lawprofessor-letter.pdf; shoba sivaprasad wadhia, beyond deportation: the role of prosecutorial discretion in immigration cases, 55 (2015). 83 employment authorization data, supra note 66. 84 see crane v. napolitano, 920 f. supp. 2d 724, 734 (n.d. tex. 2013) (plaintiffs challenged "the portions of the directive and morton memorandum that require ice officers to exercise prosecutorial discretion and defer action against aliens who satisfy the directive's criteria."); see generally brief of amici curiae in support of respondents, crane v. johnson, 783 f.3d 255 (5th cir. 2015) (no. 14-10049), 2014 wl 10657554. 16 demystifying employment authorization vol. 6.1 effect. however, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence. under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” dhs can terminate or renew deferred action at any time, at the agency’s discretion.85 notably, it is presumed that the approvals contained in this data set do not include daca recipients.86 the high rate of applications for non-daca deferred action-based work authorization does not provide the full picture as the approval rate for deferred action based work authorization dropped between 2012 and 2014. in 2014, 23,267 applications for work authorization were requested, of which 15,476 (67%) were granted and 7,499 (32%) were pending.87 in 2013, 4,257 applications were made to uscis and 3,650 (86%) were granted and only 123 (3%) were pending.88 in 2012, 3,573 (87%) were granted and 69 (2%) applications or were pending.89 table 6: deferred action applications year applications received granted pending 2012 4,094 3,573 69 2013 4,257 3,650 123 2014 23,267 15,476 7,499 the lower approval rates for deferred action in 2014 may be explained in part by the volume of applications or the fact that employment authorization applications filed in earlier years would normally be adjudicated before those applications filed in later years. another reason for a pending or denied request may be tied to the time uscis requires to review the new worksheet created for applicants to use to document the “economic necessity” component of the regulatory scheme that governs deferred action based work authorization. another possibility is that uscis is more vigilant about adjudicating work authorization applications based on deferred action in the wake of the political discourse that emerged during the obama administration around executive action and immigration. a final possibility is that uscis is simply overwhelmed with applications for work authorization based on the daca program that they are taking longer to process these applications, spending less time on these applications, or avoiding internal conflict or discussion in close cases. these theories speculate at best. 85 u.s. citizenship & immigration services, supra note 29. 86 uscis has indicated that the data set the author received on deferred action does not include daca based work authorization applications. email from cindy holt, government information specialist, foia/pa, to author (april 28, 2015, 2:42pm est) (on file with author). 87 employment authorization data, supra note 66. 88 id. 89 id. 2016 columbia journal of race and law 17 g. employment authorization applications and approvals based on an order of supervision grant beyond deferred action, there were a steady number of work authorization applications based on an order of supervision in 2014 (10,795) and 2013 (10,595).90 notably, there was a sharp drop in approvals in work authorization applications based on an order of supervision grant. of the 10,795 people who applied for work authorization based on an order of supervision in 2014 only 6,950 (64%) were granted and 3,402 (32%) applications were pending.91 compare this to 2013, where 9,466 applications were approved, 1,060 applications were denied and 26 applications were pending.92 perhaps uscis denied applications based on a failure to meet one of the underlying factors like economic necessity. importantly, as the data does not subdivide the category of order of supervision, it is difficult to know whether the orders they served were granted as an exercise of prosecutorial discretion or on other bases. for example, a person can be released on an osup after a grant of withholding of removal under the convention against torture or because the government was required to release the person on an order of supervision based on due process grounds. h. employment authorization applications and approvals based on a parole grant with regard to parole, there was some consistency in the number of applications processed between 2012 and 2014. the number of applications in 2012 was 10,568.93 that increased in 2013 to 12,198 and then decreased again in 2014 yielding 10,264 applications.94 like with orders of supervision, work permit applications based on parole were granted at far higher proportions in 2012 and 2013 as compared to 2014, when 7,764 (76%) of the total 10,264 applications were approved.95 again, the possibility that applications filed in earlier years would be processed before the later ones is high. in 2014, 2,331 (23%) applications based on a parole grant were pending.96 the following two tables provide a visual for applications for employment authorization based on deferred action, orders of supervision, and parole between 2012 and 2014. table 7: basis of employment authorization applications 2012-2014 year c11 (parole) c14 (da) c18 (osup) 2012 10,568 4,094 8,267 2013 12,198 4,257 10,595 2014 10,264 23,267 10,795 90 employment authorization data, supra note 66. 91 id. 92 id. 93 id. 94 id. 95 id. 96 id. 18 demystifying employment authorization vol. 6.1 table 8: basis of approved applications 2012-2014 year c11 (parole) c14 (da) c18 (osup) 2012 10,346 3,573 7,608 2013 11,890 3,650 9,466 2014 7,764 15,476 6,950 iv. employment authorization for prosecutorial discretion grantees: a good policy? between march 17, 2015 and april 6, 2015, a qualitative survey to attorneys on work permits and prosecutorial discretion survey was conducted97 to three national electronic mailing lists comprised of attorneys with experience applying for work authorization pursuant to a prosecutorial discretion grant.98 twenty-two attorneys responded to the survey and based on this set, more than 1,000 applications for work authorizations were filed on the basis of prosecutorial discretion since 2010.99 while some of the data included work authorizations filed pursuant to a pending form of relief from removal (following a grant of administrative closure from an immigration judge), the vast majority of applications were filed on the basis of a particular form of prosecutorial discretion: deferred action for childhood arrivals (daca); deferred action (non-daca); order of supervision; or parole.100 most respondents indicated that they had not changed their strategy or procedure for preparing work authorization applications.101 not surprisingly, the survey responses overwhelmingly favored a broad policy for allowing prosecutorial discretion recipients to work and raised important questions about the application of work authorization to recipients of prosecutorial discretion. beyond the policy views on work permits and prosecutorial discretion expressed by attorneys responding to the survey are the personal stories of those who have been able to work because of a prosecutorial discretion grant. as described by gaby gomez, a young man who was granted work authorization pursuant to his daca status: daca, though a temporary measure, paved the way for me to seize new academic and career opportunities that once felt out of reach. daca made it possible for me to spend last summer working on social justice issues impacting the latino community. this work motivated me to approach my 97 shoba sivaprasad wadhia, survey: work permits and prosecutorial discretion (mar. 17, 2015) (on file with author). 98 id. the survey included the following substantive questions: “ 1. since 2010, have you applied for work authorization based on a prosecutorial discretion request with/ grant from uscis, cbp or ice? 2. if you answered yes to question 1, how many work authorization applications have you filed? 3. if you answered yes to question 1, on what basis did you apply for work authorization? 4. have you been granted work authorization under a different code than the code you used to apply? please explain. 5. how do you prepare a work authorization application based on a grant of prosecutorial discretion? 6. have you changed your strategy in applying for work authorization pursuant to prosecutorial discretion? has your success rate changed in the last five years? please describe. 7. do you have a comment that best captures your opinion on work permits and prosecutorial discretion? for example, do you think limiting work authorization to only certain forms of pd is good policy? why or why not?” 99 id. 100 id. 101 id. 2016 columbia journal of race and law 19 studies with renewed interest and with an impetus to steer them in the direction of public service and advocacy. i am a proud recipient of daca.102 carlos martinez is another daca recipient whose opportunity to apply for and receive work authorization based on daca changed his life and landed him a “dream job.” eager to get a work permit so he could begin pursuing his career, martinez began preparing to apply for deferred action even before the forms and guidelines to apply became available. he gathered about 180 documents to prove he has been living in the u.s. for more than 20 years. by the time the federal government began accepting applications for deferred action, martinez was ready to apply. …the wait to finally begin pursuing his career ended in september when he received a letter in the mail notifying him that he had been approved for deferred action. a few weeks later, he received his work permit and immediately went to apply for a social security number. with a work permit and a social security number in hand, he began applying for jobs. in november, martinez applied for the job at ibm, which he described as his “dream job.”103 though the data analyzed in this article focuses on work authorization applications pursuant to deferred action outside of daca, orders of supervision and parole, gaby and carlos’s stories highlight the profound impact of working outside of the shadows even through the tenuous status of prosecutorial discretion. the economic benefits to gaby and carlos are similar to reports of daca recipients across the country, as detailed in one survey of 1,157 individuals who either applied or considered applying for daca.104 in this sample, daca recipients reported the following economic improvements since receiving daca: • 66% went from unemployed to employed after receiving daca • 79% got what they considered to be a ‘better job’ • 68% worked better hours • 64% earned higher salary • 41% got a job that provided health or other benefits • 77% reported that they are now able to more consistently cover bills • 78% are better able to contribute to monthly household expenses.105 102 national council of la raza, two years later: taking stock of daca's success, huffington post latino voices (june 19, 2015, 4:46 pm), http://www.huffingtonpost.com/national-council-of-la-raza-/two-years-later-takingst_b_5512832.html. 103 griselda nevarez, deferred action recipient lands 'dream job' a year after program's announcement, huffington post latino voices (june 13, 2015, 5:07 pm), http://www.huffingtonpost.com/2013/06/13/deferred-action-recipientjob_n_3437530.html. 104 caitlin patler & jorge a. cabrera, ucla institute for research on labor and employment, from undocumented to dacamented, impacts of the deferred action for childhood arrivals (daca) program, three years following its announcement (june 2015), http://www.irle.ucla.edu/publications/documents/patler_daca_report_061515.pdf. 105 id at 6. despite these benefits, daca recipients in this same study reported having challenges with paying the $465 application fees for daca. furthermore, the study’s authors point out that daca recipients remain in lower wage jobs and find it difficult to meet basic needs. id at 3. 20 demystifying employment authorization vol. 6.1 beyond the individual benefits work authorization can provide for a noncitizen who is otherwise unable to find work, government reports and testimonies and policy organizations have showcased the broader economic benefits of programs like deferred action.106 according to an april 2, 2015, column published by the center for american progress and titled: “assessing the economic impacts of granting deferred action through daca and dapa”: [t]here is much to gain economically from enabling the dacaand dapa-eligible population to work lawfully. as daca and dapa recipients earn higher wages—an estimated total of $103 billion more over the next decade—the u.s. gross domestic product, or gdp, will increase cumulatively by $230 billion over the next 10 years. and it is not just beneficiaries of deferred action who will see wage gains: a booming economy will increase the incomes of all americans by an estimated $124 billion. the growth in economic activity will also create an average of 28,814 jobs per year over the next 10 years for all americans.107 similarly, testimony by social security administration’s chief actuary, stephen c. goss to the senate homeland security and governmental affairs committee states: the largest effect of the executive actions for individuals who are currently undocumented or have overstayed a visa is the opportunity to pursue daca or dapa status and thereby gain legal work authorization. these individuals will be able to reapply for deferred action every 3 years, as long as they continue to meet the qualifications and do not pose a security threat. the additional individuals entering the formal economy and paying taxes will have positive effects on payroll tax revenue for several decades, followed by decades where these individuals will be past working ages and will receive earned benefits from social security.108 the economic impact of daca or dapa (or legislation to undo these programs) has also been reported by the congressional budget office (cbo) and the staff of the joint committee on taxation (jct). in response to one related appropriations bill that would have dismantled the deferred action programs announced by president obama in 2014: jct expects that the largest effect of [this bill] would be decreased reporting of employment income by people who would be legally allowed to work because of the deferred action programs under current law but 106 financial implications for the social security trust funds of the president’s executive actions on immigration, announced november 20, 2014: testimony to the s. comm. on homeland sec. and governmental affairs 114th cong. (2015) (statement of stephen c. goss, chief actuary, social security administration), www.hsgac.senate.gov/download/?id=de43c123-ca0c-4554-a4c0e1c5a70f99e7; see also hearing, supra note 15 (statement of stephen h. legomsky, john s. lehmann univ. professor, washington univ. sch. of law); see generally roberto g. gonzales & veronica terriquez, how daca is impacting the lives of those who are now dacamented, national undacamented research project, (american immigration council) aug. 15, 2013, http://www.immigrationpolicy.org/just-facts/how-daca-impacting-lives-those-who-are-nowdacamented; see also economic benefits of granting deferred action to unauthorized immigrants brought to u.s. as youth, american immigration council, (june 22, 2012), http://immigrationpolicy.org/just-facts/economic-benefitsgranting-deferred-action-unauthorized-immigrants-brought-us-youth. 107 silva mathema, assessing the economic impacts of granting deferred action through daca and dapa, center for american progress (apr. 2, 2015), https://www.americanprogress.org/issues/immigration/news/2015/04/02/110045/assessing-the-economic-impactsof-granting-deferred-action-through-daca-and-dapa/. 108 goss, supra note 106. 2016 columbia journal of race and law 21 would not be legally allowed to work under the act. moreover, jct expects that wages for affected workers would decrease relative to their wages under current law as a result of their losing legal status under the act. that decrease in reported wages would cause decreases in receipts, most of which would be from social security taxes, which are categorized as off budget.109 on the law and policy, opponents might argue that the statute does not permit dhs to grant employment authorization to a person granted deferred action or another qualifying form of prosecutorial discretion. the center for immigration studies, an organization that advocates restrictive immigration policy, has stated, “[t]he claim that 8 u.s.c. § 1324a(h) authorizes dhs to allow aliens to work is simply nuts.”110 moreover, opponents might also argue that no person should receive permission to work until the u.s. labor market is tested. after all, many employment-based immigration categories require a qualifying relationship between a u.s. employer and the foreign national, efforts by the u.s. employer to recruit american workers, and certification from the u.s. department of labor.111 contrast the employment-based immigration system to the employment authorization available to grantees of prosecutorial discretion where the individual can be employed anywhere and without any of these safeguards. this argument was at the heart of a lawsuit filed by save jobs usa in connection with a new regulation by dhs enabling certain spouses of temporary h1-b workers to be employed.112 the lawsuit alleged “dhs exceeds its authority by ignoring the statutory labor protections that must be applied to foreign labor. … the h-4 rule is in violation of 8 u.s.c. §§ 1182(a)(5)(a), 1227(a)(1), that bar the admission of foreign labor unless the department of labor certifies, ‘the employment of such alien will not adversely affect the wages and working conditions of workers in the united states similarly employed.’”113 apart from protecting the american workforce, opponents might also see an inconsistency with permitting individuals in a tenuous position like deferred action to apply for employment authorization and denying many other people with formal legal status employment opportunities under the current statutory framework. for example, neither foreign students who enter the united states on a temporary f-1 visa nor their spousal derivatives are qualified to work.114 similarly, most derivative spouses of h-1b workers are ineligible to apply for work authorization despite their residence in the united states with formal legal 109 letter from douglas w. elmendorf, director of congressional budget office to honorable thad chochron, chairman of the committee on appropriations (jan. 29, 2015), https://www.cbo.gov/sites/default/files/114thcongress-2015-2016/costestimate/hr240.pdf; these findings are also consistent with the social science literature pertaining to the economic benefits of granting work authorization to deferred action beneficiaries. see e.g., roberto g. gonzales & angie m. bautista-chavez, two years and counting: assessing the growing power of daca, american immigration counci, june 16, 2014, http://www.immigrationpolicy.org/special-reports/two-years-and-countingassessing-growing-power-daca; see also tom k. wong, angela s. garcia, marisa abrajano, david fitzgerald, karthick ramakrishnan, & sally le, center for american progress, undocumented no more: a nationwide analysis of deferred action for childhood arrivals, or daca, (2013), http://cdn.americanprogress.org/wp-content/uploads/2013/09/dacareportcc-2-1.pdf. 110 john miano, lawsuit asks whether the president can give work authorization to anyone he wants, center for immigration studies (apr. 29, 2015), http://cis.org/miano/lawsuit-asks-whether-president-can-give-workauthorization-anyone. 111 see, e.g., 8 u.s.c. §1182(a)(5)(a); see also u.s. dep’t of labor, about foreign labor certification, ,https://www.foreignlaborcert.doleta.gov/about.cfm (last updated may 19, 2014). 112 see save jobs usa v. u.s. dep’t of homeland sec., 105 f.supp.3d 108 (d.d.c. 2015). 113 id. alternatively, 85% of the 13,000 commentators to the proposed rule supported the extension of employment authorization to a class of h-4 dependents. employment authorization for certain h-4 dependent spouses, 80 fr 10,284 (feb. 25, 2015) (to be codified at 8 c.f.r 214, 274a). 114 u.s. citizenship and immigration services, students and employment, (last visited july 15, 2015), http://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment. (“f-1 students may not work off-campus during the first academic year, but may accept on-campus employment subject to certain conditions and restrictions.”). 22 demystifying employment authorization vol. 6.1 status.115 why should a person released on an order of supervision or granted deferred action have the chance to work legally when these other categories offer no such opportunity to people living in the united states with legal status? those who oppose extending work authorization to grantees of prosecutorial discretion might also point to the long wait times faced to qualify for work authorization and lesser delays faced by qualifying individuals who apply for work based on prosecutorial discretion. for example, an asylum seeker may not apply for work authorization until at least 150 days from the date on which her application was filed.116 this asylum work authorization “clock” can also be stopped by officers and judges, enabling even longer wait times for genuine asylum seekers.117 similarly, a victim of crime who applies for a u-visa may not apply for work authorization until her application is approved by uscis. currently, the wait times for a u-visa are more than one year.118 finally, critics might argue that individuals may be tempted to color their claim or engage in fraud when making a request for prosecutorial discretion in order to receive permission to work. in fact, one theory that drove the old immigration agency, immigration and naturalization service, to create a window of time before an asylum applicant can apply for employment authorization was to reduce fraud, while previously, an applicant could apply for asylum and work authorization simultaneously. professor david martin describes the pre-reform abuses: “here then is the situation that fed on itself and bred abuse. as more and more undocumented aliens received speedy work authorization through this mechanism and yet never had to appear before an ins officer even to establish identity, much less to justify the asylum claim, the word spread about this magical path to genuine, legitimate [employment authorization documents].”119 the asylum changes were preceded by an impassioned debate by policymakers and advocates, some of whom argued that decoupling the asylum application from the employment authorization application would do more harm than good to the asylum seeker who is providing for herself and/or a family.120 the above concerns are reasonable to explore, but i am not persuaded that they trump the overarching benefits that flow from employing beneficiaries of prosecutorial discretion. moreover, the inconsistencies and anomalies in immigration law and policy are pervasive and cannot be cured by eliminating work authorization for select pd grantees. finally, my own view is that spouses of temporary workers like h-1b holders or students like f-1 students should be authorized to work for many of the economic reasons outlined in the foregoing paragraphs, and because it reduces the power and control that a principal spouse might have over the derivative (a topic well beyond the scope of this article). it is difficult to measure the degree to which economics should lead the conversation about whether work permits for prosecutorial discretion beneficiaries are good for society. notably, there are other societal measures that may be worthy of discussion, but are beyond the scope of this article. one study 115 compare 8 c.f.r. § 274a.12(c), employment authorization for certain h-4 dependent spouses, 79 fr 26,886 (may 12, 2014) (to be codified at 8 c.f.r 214, 274a) (seeking to “extend the availability of employment authorization to certain h-4 dependent spouses of principal h-1b nonimmigrants”); u.s. citizenship and immigration services, employment authorization for certain h-4 dependent spouses, https://www.uscis.gov/working-united-states/temporaryworkers/employment-authorization-certain-h-4-dependent-spouses (last visited mar. 2, 2016) (describing the limited categories of derivative spouses that are eligible for work authorization). 116 see, e.g., ina § 208(d)(2) (2015) (“an applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.”). 117 see, e.g., jesus saucedo & david rodriguez, penn state law’s ctr. for immigrants’ rights & american immigration council legal action ctr., up against the asylum clock: fixing the broken employment authorization asylum clock 13 (2009), https://pennstatelaw.psu.edu/_file/immigrants/asylum_clock_paper.pdf. 118 u.s. citizenship and immigration services, uscis processing time information, (last visited feb. 2, 2016), https://egov.uscis.gov/cris/processtimesdisplayinit.do; see also u.s. citizenship and immigration services, victims of criminal activity: u nonimmigrant status, (jan. 9, 2014), http://www.uscis.gov/humanitarian/victims-human-traffickingother-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status. 119 david a. martin, making asylum policy: the 1994 reforms, 70 wash. l. rev. 725, 735 (1995). 120 see id. at 752-55; see also saucedo supra note 117, at 7. 2016 columbia journal of race and law 23 demonstrates how a parent’s undocumented status can affect the child: “the negative effects have been measured in educational achievement, cognitive development and emotional stability.”121 this same study highlights the benefits of providing a work permit to these parents: with a work permit as provided for in the dapa program, parents would have the opportunity to increase income, reduce poverty and thereby improve conditions for children. indeed, wage growth among low-wage working parents can benefit children’s academic and behavioral development by increasing parents’ expectations for their children’s school success and achievement.122 by removing the fear of deportation and increasing economic opportunity for the parent, a program like dapa can be life changing and affect future generations. such research must be part of the discourse surrounding the debate over work permits and prosecutorial discretion. a. exploring solutions assuming one agrees with the premise that the statutory structure allows dhs to identify certain unauthorized individuals or classes for work authorization, finding a solution moving forward is a policy question rather than a legal one. orders of supervision, parole, and deferred action are three forms of prosecutorial discretion that plainly identify a grantee as eligible to apply for work authorization.123 one policy question is whether work authorization should be granted for individuals who receive another type of prosecutorial discretion, such as a motion by ice to administratively “close” a case that is ultimately approved by the immigration judge. as with a motion to close, and possible administrative closure by the immigration judge, there are several forms of prosecutorial discretion in immigration law for which no independent ground for work authorization is explicit.124 below are some forms of prosecutorial discretion that do not explicitly provide an independent basis for work authorization: • decision to refrain from issuing, serving, or filing a notice to appear; • decision to cancel a notice to appear; • decision to not stop, question, or arrest an individual; • decision to not detain an individual or to release an individual already in detention; • decision to join in a motion to close or terminate a case (with or without regard to whether such motion is ultimately granted by the immigration judge); • decision to appeal a case; • decision to stay removal in a case.125 121 roberto suro, marcelo m. suarez-orozco & stephanie l. canizales, tomás rivera policy inst., removing insecurity: how american children will benefit from president obama's executive action on immigration, globalization and education at ucla (2015), http://trpi.org/pdfs/research_report.pdf. 122 id. 123 even so, employers have not always accepted an employment authorization document as proof of eligibility. in one case, a noncitizen legally authorized to work in the united states brought a lawsuit against the northwestern mutual life insurance company because the company had a policy of hiring only u.s. citizens or those with lawful permanent residence. see juarez v. nw. mut. life ins. co., 69 f.supp.3d 364, 368 (s.d.n.y. 2014). 124 the term “explicit” here means that the plain language of the statute or regulations identifies a particular prosecutorial discretion grant as a basis for applying for work authorization. 125 this list is adapted from the most recent prosecutorial discretion memo, but these factors have been featured in nearly every prosecutorial discretion guideline since 2000. jeh charles johnson memorandum, supra note 3. 24 demystifying employment authorization vol. 6.1 possibly, using 8 u.s.c. § 1324(h)(3), extending work authorization to individuals who benefit from one of the prosecutorial discretion forms listed above is a good policy.126 a narrower solution is to enable any person with a prosecutorial discretion grant to apply for work authorization so long as he can show “economic necessity” as is currently required for certain deferred action beneficiaries. this solution expands the pool of people who might be eligible to work but includes a limiting factor by requiring proof of economic necessity. another possibility is to require any applicant seeking work authorization on the basis of a prosecutorial discretion grant to include documentation of a job offer and statement by a u.s. employer about his unsuccessful efforts to hire an american worker. this kind of statement would not be as labor intensive or costly as labor certification but would address the policy goals of protecting the american workforce. yet another option is to limit work authorization to individuals who have received an affirmative form of prosecutorial discretion for a period of at least two years. uscis could implement these policies by creating a regulation or guidance document with specified criteria required for work authorization. b. political challenges to employment authorization applications in crafting a solution, the politics cannot be ignored. possibly, the administration may determine that it lacks the political space to create a broader policy that provides work authorization as an option for a greater pool of prosecutorial discretion grantees, especially in the wake of litigation. even with the 2012 daca program, critics opposed to work permits for young people in headlines: • work permits for young immigrants steal jobs from americans127 • order for millions of blank work permits, green cards raising amnesty concerns128 • obama renews work permits for 520,000 illegals129 now, the president’s november programs on deferred action remain on hold because of litigation brought by texas and twenty-five other states. in reading briefs and listening to the oral arguments, one has to wonder how much the texas lawsuit has to do with the merit versus politics and the real opposition to a program that permits undocumented people to be employed. the controversy around work permits was well captured during oral arguments before the fifth circuit court of appeals on july 10 at which judge carolyn d. king asked texas solicitor general scott keller, “[t]he state's position is, what you object to here, is the granting of work authorization to these individuals. you don't want them to have work authorization?”130 judge king did not receive a clear response to her question but her question and keller’s lack of objection to her framing speaks volumes to the role employment authorization in the debate around the president’s executive actions. 126 it may be legitimate to argue that the existing regulatory framework provides any person with a prosecutorial discretion grant to apply for work authorization—by illustrating for example, that 8 c.f.r. § 274.12(c)(14) reserved for those granted “deferred action” really means “any action that is deferred.” however, this has not been how dhs has interpreted deferred action or the accompanying regulations that authorize work. to illustrate, deferred action is just one kind of action (among more than one dozen) listed in a medley of memoranda by the immigration agency on prosecutorial discretion. the author’s view is that the agency’s choice to limit work authorization to only qualifying individuals in a particular category of prosecutorial discretion (such as deferred action) is not unreasonable as a matter of law. 127 roy beck, work permits for young immigrants steal jobs from americans, u.s. news & world party, june 19, 2012, http://www.usnews.com/debate-club/is-obama-right-to-grant-young-illegal-immigrants-work-permits/work-permitsfor-young-immigrants-steal-jobs-from-americans. 128 kenric ward, order for millions of blank work permits, green cards raising amnesty concern, foxnews, oct. 21, 2014, http://www.foxnews.com/politics/2014/10/21/order-for-millions-blank-work-permits-green-cards-raising-amnestyconcerns/. 129 neil munro, obama renews work permits for 520,000 illegals, dailycaller, june 7, 2014, http://dailycaller.com/2014/06/07/obama-renews-work-permits-for-520000-illegals/. 130 recording of oral argument at 1:35:12, state of texas, et al. v. usa, et al., no. 15-40238 (5th cir. july 10, 2015), http://www.ca5.uscourts.gov/oralargrecordings/15/15-40238_7-10-2015.mp3. 2016 columbia journal of race and law 25 c. operational challenges to employment authorization applications co-existing with the political challenges are the operational challenges dhs and uscis in particular may face in attempting to process deferred action requests and work permit applications in a timely manner. one illustration of this challenge can be found in the sheer number of work authorization applications coded as “pending” during 2014 in the data set analyzed for this article. by regulation, uscis is required to process most work authorization applications within a 90-day time period and, if failing to do so, issue “interim employment authorization” to affected applicants.131 and yet, many qualifying applicants have not received an interim work authorization as required by the regulation and in some cases, have been unable to work because they lack the evidence required by their employers to work in the united states.132 a review of the 2015 annual report by the dhs citizenship and immigration services ombudsman reveals that uscis adjudicates the majority of employment authorization application within the 90-day timeframe, but for the thousands of individuals that face delays, this can mean a loss of employment to the applicant and negative consequences for the employer.133 the specific delay faced by daca recipients was also reported by journalist david noriega who obtained records from uscis: thousands of undocumented immigrants who gained work permits as part of an obama administration effort to shield young people from deportation are suddenly losing their ability to work legally as the federal government struggles to renew their authorizations on time. exactly 11,028 young immigrants have had their deferred action for childhood arrivals (daca) status and work permits expire in spite of having applied on time.134 the processing delays associated within the immigration system and daca program specifically raise important questions about whether uscis would have the resources and ability to adequately process work authorization applications for noncitizens granted any form of prosecutorial discretion. v. conclusion this article began with a description of the variations of prosecutorial discretion for which employment is authorized by statute and regulations, and clarified the relationship between prosecutorial discretion and work authorization. the article highlighted data sets of select work authorization applications processed by uscis on the basis of a grant of the following three forms of prosecutorial discretion: deferred action, order of supervision, and parole. the data reveals that the agency has a significant history of processing and granting work permits on the basis of prosecutorial discretion. at the same time, the data uncovers a spike in work authorization applications based on non-daca deferred action in 2014 as well as a lower rate of approvals in 2014 in contrast to the overall average grant rate between 1990 and 2014. finally, this article showcases the economic arguments in favor of extending work authorization to prosecutorial 131 8 c.f.r. § 274a.13(d) (“uscis will adjudicate the application within 90 days from the date of receipt of the application…failure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days.”). 132 complaint at 3, northwest immigrant rights project v. u.s. citizenship and immigration services et al., 2015 wl 3392733 (w.d. wash. 2015) (no. 2:15-cv-00813). 133 see citizenship and immigration services ombudsman, dep’t of homeland security, annual report 2015 48-50 (2015), http://www.dhs.gov/sites/default/files/publications/final%202015%20cisomb%20annual%20report_0.pdf; see also shoba sivaprasad wadhia, work authorization for dreamers: a week of wonders and woes, immigrationprof blog (july 17, 2015), http://lawprofessors.typepad.com/immigration/2015/07/work-authorization-for-dreamers-a-week-ofwonders-and-woes-by-shoba-sivaprasad-wadhia.html. 134 david noriega, thousands of dreamers are losing their work permits, buzzfeed, apr. 22, 2015, http://www.buzzfeed.com/davidnoriega/thousands-shielded-from-deportation-losing-work-permits. 26 demystifying employment authorization vol. 6.1 discretion recipients beyond that which is explicated in the regulations and the political landscape under which these policy questions should be raised. millions of unauthorized individuals are living in the united states today with a form of prosecutorial discretion because they are not a priority for enforcement and removal. but this discretion lacks the legitimacy of a comprehensive legislative solution and may (as we have seen with dapa) result in a robust role for the courts and public skepticism about whether our government is following the rule of law. many beneficiaries protected through prosecutorial discretion could be eligible for legal status and work authorization in the future if congress finds a legislative solution. while the scope of this article is focused on the relationship between work authorization and prosecutorial discretion, the importance of a legislative solution for the millions of people living in legal limbo remains critical. even the best-looking policy for authorizing individuals with prosecutorial discretion for employment cannot replace the need for legislative reform. vi. appendix table of abbreviations administrative procedure act – apa california service center – csc code of federal regulations – cfr congressional budget office – cbo convention against torture – cat customs and border protection – cbp deferred action da deferred action for childhood arrivals – daca deferred action for parents of americans and lawful permanent residents – dapa department of homeland security – dhs employment authorization document – ead executive office for immigration review – eoir freedom of information act – foia immigration and customs enforcement ice immigration and nationality act – ina immigration and naturalization service – ins joint committee on taxation – jct national benefits center – msc nebraska service center – nsc office of legal counsel – olc order of supervision – osup parole in place – pip post order custody review – pocr prosecutorial discretion – pd texas service center – tsc united states code – u.s.c. united states citizenship and immigration services uscis vermont service center – vsc violence against women act – vawa microsoft word cjrl hodge f16 eic v3.docx is the indian child welfare act losing steam?: narrowing non-custodial parental rights after adoptive couple v. baby girl courtney hodge* in 2013, the united states supreme court handed down a decision in adoptive couple v. baby girl, a decision that will have long-term effects on the use of the indian child welfare act by non-custodial native parents. congress passed the indian child welfare act in 1978 in response to the high volume of native children that had been removed from their families and their tribes through the child welfare system. in the decades since the law was enacted, several state courts have sought to limit the application of the law through a state court created doctrine known as the existing indian family exception. since the 2000s, that doctrine has been losing support among state legislatures and courts. although adoptive couple does not explicitly endorse the exception, the opinion closely tracks the reasoning states courts have used to apply the exception. this note analyzes how the majority opinion of the supreme court overlooks the rights and interests of noncustodial native parents, who should also be able to invoke the indian child welfare act in a case involving their child. this note also analyzes the recent guidelines and rules issues by the bureau of indian affairs, which have started to fill in the holes of the application of the indian child welfare act left by the supreme court. however, as this note will show, additional action, either by congress or at the state level, is needed to ensure that future native parents can use the indian child * j.d. candidate 2017, columbia law school; b.a. 2014, georgetown university. the author would like to thank professor jane spinak for her guidance and advice throughout the writing process. the author would also like to thank todd densen and the staff of the columbia journal of race and law for their invaluable editing contributions. 192 columbia journal of race and law [vol. 7:1 welfare act to ensure that their child remains connected to his or her heritage. i. introduction ............................................................ 192 ii. background .............................................................. 198 a. historical context prior to the passage of the indian child welfare act .................................... 198 b. the indian child welfare act: passage and purpose ................................................................. 206 c. implementation of the icwa and the existing indian family exception ..................................... 210 d. critiques of the existing indian family exception .............................................................. 218 iii. adoptive couple v. baby girl: the new existing indian family exception case? ............................. 219 a. factual background of adoptive couple v. baby girl ....................................................................... 219 b. the united states supreme court’s decision in adoptive couple v. baby girl .............................. 221 c. justice sotomayor’s dissenting opinion in adoptive couple v. baby girl .............................. 224 d. improper interpretation of icwa ...................... 227 e. adoptive couple and the existing indian family exception .............................................................. 229 f. constitutional rights of non-custodial fathers following adoptive couple ................................... 231 iv. reviving the indian child welfare act ............. 234 a. the new final rule for indian child welfare act proceedings .......................................................... 235 b. amending the indian child welfare act ............ 240 v. conclusion ............................................................... 243 i. introduction throughout the first half of the 20th century, native children were placed in boarding schools and foster care at an alarmingly high rate under the guise of education and no. 4:191] is the indian child welfare act losing steam? 193 protection.1 these troubling child removal practices developed as part of a long tradition of policies aimed at assimilating tribal members into mainstream american society. in 1978, congress took a major step towards protecting the future of native american tribes. following extensive evidence on the treatment of native american children, congress enacted the indian child welfare act (“icwa” or “act”) in order to: [p]rotect the best interests of indian children and to promote the stability and security of indian tribes and families by the establishment of minimum federal standards for the removal of indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of indian culture, and by providing for assistance to indian tribes in the operation of child and family service programs.2 congress hoped the icwa would help slow the trend of removing native american children from their homes and keep more children with their families and tribes.3 the purpose of the icwa is to establish procedural safeguards in state custody proceedings regarding native american children that protect the interests of native children, families, and tribes.4 specifically, § 1902 achieves this goal by providing for “the placement of indian children in foster or adoptive homes which will reflect the unique values of indian culture, and by providing for assistance to indian tribes in the operation of child and family service programs.”5 under § 1 this note uses the term “native” or “native american” exclusively, except when “indian” is used in the language of a statute, case, or other cited material. 2 indian child welfare act, pub. l. no. 95-608, 92 stat. 3069 (codified at 25 u.s.c. §§ 1901 to 1903, 1911 to 1923, 1931 to 1934, 1951, 1952, 1961 to 1963 (2012)). 3 h.r. rep. no. 95-1386, at 8 (1978). 4 id. at 19. 5 25 u.s.c. § 1902 (2012). 194 columbia journal of race and law [vol. 7:1 1911, except where otherwise vested in the state by existing federal law, tribes have jurisdiction over any child welfare case when the child lives on the reservation, is a ward of a tribal court, or the state does not have good cause to remove the case to state court.6 the act places a burden on state agencies to make an active effort to keep children with their families before removing the child.7 the purpose of this act was not to displace the state’s traditional role in child welfare proceedings, but rather to establish minimum standards.8 since 1978, state courts have interpreted the language of the icwa in a variety of ways. some state courts have used the language to create additional protections.9 other courts, however, have worked to limit the application of the icwa as much as possible.10 the kansas supreme court played an important role in the trend towards limiting the application of the icwa. four years after the icwa was passed, the supreme court of kansas ruled in in re adoption of baby boy l. that the icwa did not apply in certain instances where a child was not removed from a native american family.11 the court considered the legislative history, the policy motives behind the law, and the actual language of the act in order to determine that the icwa was only intended to regulate proceedings in which the child had been removed from an intact family.12 this opinion marked the development of the existing indian family exception, a state court created prerequisite to the application of the icwa. although the exception has never been adopted in a majority of states, it has been influential. at its height, nearly half of the states were forced to address the exception either in the courts or the 6 25 u.s.c. § 1911 (2012). 7 25 u.s.c. § 1912(d) (2012). 8 h.r. rep. no. 95-1386, at 19 (1978). 9 for a discussion of the increased state court protections, see kelsey vujnich, a brief overview of the indian child welfare act, state court responses, and actions taken in the past decade to improve implementation outcomes, 26 j. am. acad. matrim. l. 183, 191–93 (2013). 10 id. at 193–200. 11 in re adoption of baby boy l., 643 p.2d 168 (kan. 1982). 12 id. at 175–76. no. 4:191] is the indian child welfare act losing steam? 195 state legislatures.13 as of 2012, only eight states still applied the exception.14 many other states have either rejected the exception outright or overturned a previous case applying the exception.15 most notably, the kansas supreme court overturned in re adoption of baby boy l. in 2009.16 after this decision, scholars believed that other courts would also stop using the existing indian family exception.17 however, a recent supreme court case calls into question the actual decline of the exception. in 2013, the supreme court ruled on the icwa for only the second time in adoptive couple v. baby girl and found that the act did not apply where a native american parent never had custody of the child.18 the case involved the adoption placement of a native american girl, whose father was a member of the cherokee tribe, but whose mother was not native american.19 baby girl’s parents were estranged at the time of her birth and her mother surrendered her for adoption soon after.20 only after the birth father received notice of the adoption did he intervene and challenge the placement under the icwa.21 the south carolina supreme court ruled that the icwa applied and granted the birth father custody, but the united states supreme court reversed that decision.22 the majority opinion built its case around two phrases from § 1912(d) and § 1912(f): “breakup of 13 dan lewerenz & padraic mccoy, the end of “existing indian family” jurisprudence: holyfield at 20, in the matter of a.j.s., and the last gasps of a dying doctrine, 36 wm. mitchell l. rev. 684, 686 (2010). 14 vujnich, supra note 9, at 197. 15 id. 16 see in re a.j.s., 204 p.3d 543, 549 (kan. 2009) (expressly overruling baby boy l. and the existing indian family doctrine). 17 see lewerenz & mccoy, supra note 13, at 722 (highlighting that the ruling of in re a.j.s. gives lawyers and legislatures in states that still applied the existing indian family exception new and persuasive grounds for reconsidering the use of the exception). 18 adoptive couple v. baby girl, 133 s. ct. 2552, 2557 (2013). 19 id. at 2558. 20 id. 21 id. at 2558–59. 22 id. at 2559. 196 columbia journal of race and law [vol. 7:1 the indian family” and “continued custody,” respectively.23 using the exact dictionary definitions of “breakup” and “continued,” the court reasoned that the provisions were focused on traditional, anglo-american family units rather than situations where one parent had not previously been involved in the child’s life.24 justice sotomayor wrote a detailed dissent highlighting the flaws in the logic of the majority opinion and the widespread effects the decision will have on the claims of all non-custodial native american parents.25 the united states supreme court never explicitly used or referenced the existing indian family exception in adoptive couple. however, the decision interpreted the icwa in a way that mirrors the analysis in in re adoption of baby boy l. and other existing indian family exception cases. both decisions developed out of a belief that the icwa does not apply to non-custodial parents because they are not expressly mentioned in the act. in addition, both decisions highlight similar language in the icwa to support their holdings that congress intended for the act to apply only to intact families. based on this comparison, the ruling in adoptive couple not only weakens the icwa by implicitly affirming the existing indian family exception, but also questions the rights of non-custodial parents under the icwa. this note examines the weakening power of the icwa as it applies to non-traditional family structures. by taking a closer look at the connection between the decision in adoptive couple and the existing indian family exception, this note illuminates how the supreme court’s 2013 decision will have devastating long-term effects on the child welfare proceedings of native american children. justice sotomayor noted in her dissenting opinion that adoptive couple will effectively deny other deserving parents of icwa protection.26 this ruling 23 id. at 2560–64. 24 adoptive couple, 133 s. ct. at 2560, 2562. 25 id. at 2572–86. 26 id. at 2573. no. 4:191] is the indian child welfare act losing steam? 197 also overlooks the child’s interest in staying connected to the tribe simply because she does not come from a traditional family structure. ultimately, the ruling reaffirms several cultural misconceptions about the kinds of families that deserve protection, something congress hoped to avoid when they passed the icwa. without action from congress to amend the language of the icwa, many more parents will be precluded from the protection that the act was meant to provide. part ii of this note outlines the historical context leading up to the passage of the icwa as well as the relevant elements of the legislation. part ii also addresses the court interpretations of icwa, including the development of the existing indian family exception in state courts and mississippi band of choctaw indians v. holyfield, the only other supreme court case to address the icwa.27 part iii takes a closer look at adoptive couple. this section lays out the reasoning in the majority opinion as well as the relevant critiques from the dissent. part iii then compares adoptive couple to the existing indian family exception case law. finally, part iii illustrates that even if adoptive couple does not fully revive the existing indian family exception, the case has still narrowed the class of parents who can intervene in the proceedings of their children under the icwa. at a minimum, the opinion jeopardizes the rights of non-custodial parents to intervene in the adoption of their children to the same extent that a custodial parent could under the icwa. finally, part iv presents a potential amendment to the icwa that seeks to clarify congressional intent and broaden the application of the act in light of adoptive couple. the proposed amendment would change the definition section to make clear that the icwa applies in all child custody proceedings. the amendment would also create a separate subpart of § 1912 that sets a new standard of termination of parental rights for non-custodial fathers. 27 mississippi band of choctaw indians v. holyfield, 490 u.s. 30 (1989). 198 columbia journal of race and law [vol. 7:1 ii. background the following section details the various factors that inspired the passage of the icwa, the language of the law itself, and the case law that has developed since the 1980s that has limited the use and effectiveness of the act. subsection a details the assimilation driven historical practices of the united states government that inspired the passage of the indian child welfare act. subsection b lays out a description of the act itself. the final subsection discusses the ways in which the icwa has been interpreted. while the icwa is clear in its policy concerns, the statutory language is not as clear. the bureau of indian affairs (“bia”) has issued two sets of guidelines, in 1979 and 2015, as well as a binding rule that is effective as of december 12, 2016. both sets of guidelines focus on how to interpret the icwa, but they are not binding on states. thus, state courts have interpreted the language of the act in a variety of ways—some that broaden the act’s protections and others that limit it. subsection c goes into detail about some of these interpretations, including the bia guidelines, state court practices and exceptions, and the only other supreme court case interpreting the icwa. this section also goes in-depth about one particular state court exception, the existing indian family exception, and its development, application, and critiques. a. historical context prior to the passage of the indian child welfare act historically, the relationship between the federal government and native american tribes has been tenuous at best. research suggests that since the 19th century, the federal government has primarily used land use laws and educational policies to intervene in native american culture and families in order to achieve their goal of assimilation. until recently, the federal government supported laws and policies focused on securing land for white settlers and to no. 4:191] is the indian child welfare act losing steam? 199 assimilate native americans into “civilized” culture.28 the government feared that traditional tribal land use practices would inhibit the process of assimilation.29 native americans lived in communal societies that controlled land in a communal manner, which conflicted with anglo-american land use practices.30 federal land use policies focused on removing land from tribes and restructuring tribal land to conform to mainstream ideas of property. as white settlers continued to move west and demanded more land in the 19th century, the federal government created new treaties designed to take increasing amounts of tribal land.31 the government signed treaties that promised to reserve the remaining lands and to provide native americans with clothing and shelter in exchange for agreements from the tribes to cede their land to the government and move to reservations.32 the government also passed the allotment acts to further decentralize the communal property system.33 under the allotment acts, land was further divided and granted to individuals rather than tribes. the united states held the land in a trust for twenty-five years, during which time the land could not be sold or taxed.34 a particularly famous allotment act, the 1887 dawes act, allowed the president of 28 see patrice h. kunesh, transcending frontiers: indian child welfare in the united states, 16 b.c. third world l.j. 17, 19–22 (1996) (explaining a number of laws focused first on securing land for white settlers and then on land policies meant to help native americans assimilate); vujnich, supra note 9, at 184–85 (detailing several laws and policies throughout the 19th and early 20th centuries that focused on land removal and boarding schools targeted at native tribes). 29 kunesh, supra note 28, at 20–21. 30 id. 31 id. at 20. 32 id. 33 see, e.g., indian general allotment act of 1887, ch. 119, 24 stat. 388 (codified as amended at 25 u.s.c. §§ 331 to 334, 339, 341, 342, 348, 349, 354, 381 (2012)). 34 kunesh, supra note 28, at 21. 200 columbia journal of race and law [vol. 7:1 the united states to make land grants to individuals.35 the united states falsely assumed that native americans would willingly forgo their communal land system in favor of individual land holdings.36 such practices continued as late as the 1950s through the bureau of indian affairs’ relocation programs. this practice sought to move native americans from their homelands to urban areas.37 native american communities are generally structured around kinship and communal property practices. white settlers believed that close extended family bonds needed to be broken in order for them to gain greater control of native lands.38 thus, in conjunction with supporting land use policies that sought to weaken and assimilate native americans into anglo-american culture, the government also worked to intervene and separate native american families. specifically, the government supported federal and state policies that removed native american children from their parents and placed them in environments that would effectively assimilate them into mainstream practices.39 this assimilation primarily took place by sending native american children to boarding schools and by removing them from their families through the child welfare system.40 one of the most prominent assimilation practices of the late 19th and early 20th centuries was to control the education of native american children. the united states achieved this method of controlled assimilation through a network of day schools and boarding schools both on and off reservations.41 in 1819, congress passed the indian 35 vujnich, supra note 9, at 184. 36 kunesh, supra note 28, at 21. 37 vujnich, supra note 9, at 185. 38 cf. kunesh, supra note 28, at 22 (explaining that both communal property practices and the close extended family bonds of indian families were viewed as barriers to assimilation). 39 kunesh, supra note 28, at 22. 40 id. at 22–24. 41 denise k. lajimodiere, american indian boarding schools in the united states: a brief history and their current legacy, in indigenous no. 4:191] is the indian child welfare act losing steam? 201 civilization act fund, which set aside funds to set up schools that would “civilize” native american children.42 the schools were designed to remove the “barbaric” traces of tribal culture and to inculcate native children with the habits of civilized society.43 the bia sponsored a number of boarding schools.44 missionaries and other private citizens that received funding from the government ran many other schools.45 initially, boarding and day schools were set up on or near reservations.46 however, it was believed schools so close to reservations were not removed enough from tribal life and that boarding schools off of reservations were the best option to assimilate native children into anglo-american culture.47 this led to the rise of off-reservation schools.48 most of these boarding schools were built in the west.49 however, the most famous off-reservation boarding school was the carlisle indian school of pennsylvania, which was founded by col. richard henry pratt in 1879.50 children were often sent across the country to live at school for up to eight years. during this time, students were not allowed to communicate with their families or friends.51 all aspects of traditional native american culture were prohibited.52 such prohibited practices of traditional native american culture included dressing in tribal clothing, speaking native languages, or peoples’ access to justice, including truth and reconciliation processes 255, 257 (wilton littlechild & elsa stamatopoulou eds., 2014). 42 id. at 256. 43 vujnich, supra note 9, at 185. 44 northern plains reservation aid, native american history and culture: boarding schools, partnership with native americans, http://www.nrcprograms.org/site/pageserver?pagename=airc_hist_boardin gschools [https://perma.cc/9wne-kvsl]. 45 lajimodiere, supra note 41, at 256. 46 northern plains reservation aid, supra note 44. 47 id. 48 id. 49 id. 50 id. 51 kunesh, supra note 28, at 22–23. 52 id. 202 columbia journal of race and law [vol. 7:1 participating in religious ceremonies.53 pratt also developed the “outing” system, which sent students to live and work for white families during the summer months, instead of returning home.54 while the carlisle school closely monitored these placements, most other schools that adopted “outing” programs did not, thus allowing students to be exploited.55 native american parents resisted sending their children to boarding schools and often encouraged their children to run away from these schools.56 however, agents resorted to withholding rations or sending in police to enforce the enrollment policies.57 due to compulsory attendance laws enacted in the 1890s, twenty-nine percent of native american children were enrolled in boarding schools by 1931.58 as of 1909, twenty-five off-reservation schools had been founded along with 157 on-reservation boarding schools and 307 day schools.59 between 1879 and 1960, an estimated 100,000 native american children passed through the boarding school system.60 in 1971, congress found that over 34,000 children lived in institutions, which is more than seventeen percent of the total number of school aged native american children.61 even more pervasive than the placement of native children in boarding schools was the removal of children from their families and tribes through the child welfare system. in the early to mid-20th century, the bia often worked in conjunction with state authorities to remove native children from their families and place them in non-native homes.62 removing native american children from their families became a regular practice. for example, valencia thacker 53 id. 54 northern plains reservation aid, supra note 44. 55 id. 56 id. 57 id. 58 lajimodiere, supra note 41, at 256. 59 id. at 257. 60 id. 61 h.r. rep. no. 95-1386, at 9 (1978). 62 kunesh, supra note 28, at 23. no. 4:191] is the indian child welfare act losing steam? 203 testified to the american indian policy review commission task force, “i can remember [the welfare worker] coming and taking some of my cousins and friends. i didn’t know why and i didn’t question it. it was just done and it had always been done.”63 in 1971 and 1972, nearly one in four native american children under the age of one had been adopted.64 based on two surveys conducted by the association of american indian affairs in 1969 and 1974, between twenty-five percent and thirty-five percent of all native american children had been removed from their families and placed in foster care, adoptive homes, or institutions.65 the bia, in connection with states and religious organizations, also used the child welfare system to justify removing native american children from their homes, usually on the basis that the child was being neglected in some way.66 however, findings of neglect were more often based on discriminatory and culturally insensitive attitudes.67 for instance, based on the close extended family ties of native american tribes, children often spent a lot of time with extended family members rather than their parents.68 in addition, social workers also used the impoverished nature of tribes to justify removing children.69 poor housing, lack of electricity or plumbing, and chronic health problems all contributed to the idea that parents neglected native children.70 this practice overlooked the fact that the 63 h.r. rep. no. 95-1386, at 8 (1978). 64 id. at 9. 65 this statistic was included as part of the congressional findings on the state of indian children. h.r. rep. no. 95-1386, at 9 (1978). 66 kunesh, supra note 28, at 23. 67 see michelle l. lehmann, the indian child welfare act of 1978: does it apply to the adoption of an illegitimate indian child?, 38 cath. u. l. rev. 511, 516 (1989) (“congress found that cultural bias against indians contributed to the high rate of placements in that non-indian caseworkers were insensitive to, or ignorant of, traditional indian values.”). 68 kunesh, supra note 28, at 24. 69 sloan philips, note, the indian child welfare act in the face of extinction, 21 am. indian l. rev. 351, 353 (1997). 70 kunesh, supra note 28, at 23–24. 204 columbia journal of race and law [vol. 7:1 reservation system created the very issues of dependence, poverty, and disease that were later used as reasons to view native americans as unfit parents.71 combining all of these factors, state agencies justified summarily removing children from their homes.72 leading up to the passage of the icwa, congress studied the child placement practices of several states and found a grave disparity between the placements of native american children versus non-native children.73 in minnesota, for example, native american children were placed in foster care or adoptive homes at a rate five times greater than other children.74 in south dakota, forty percent of adoptions conducted by the department of welfare between 1967 and 1968 were of native american children, yet they only made up only seven percent of the juvenile population.75 most strikingly, native american children living in wisconsin were 1,600% more likely to be separated from their families than children of other demographics.76 not only were native american children systematically removed from their families at increased rates, but they were also subsequently placed almost exclusively with non-native families. one federally supported program, the indian adoption project, was viewed as an “enlightened adoption practice” because of its express goal to place native american children in non-native homes.77 the project facilitated the placement of 395 native american children in 71 id. at 24. 72 kunesh, supra note 28, at 23–24; see also, philips, supra note 69, at 352–53. 73 see h.r. rep. no. 95-1386, at 8–9 (1978) (comparing the statistical data of native children in foster care or adopted children with non-native children). 74 id. at 9. 75 id. 76 id. 77 shawn l. murphy, comment, the supreme court’s revitalization of the dying “existing indian family” exception, 46 mcgeorge l. rev. 629, 631 (2014). no. 4:191] is the indian child welfare act losing steam? 205 interracial homes between 1958 and 1967.78 this practice was unique at a time when interracial adoptions were generally discouraged.79 decades of such overt child removal practices have had adverse effects both on the children at issue as well as tribal culture at large. native american children suffered the trauma of being removed from their families and having to adjust to a different social and cultural environment.80 native american children raised in non-native homes were found to experience more social problems during adolescence.81 drs. carl mindell and alan gurwitt of the american academy of child psychology found that native american children experienced ethnic confusion and a sense of abandonment when raised in non-native homes.82 denise k. lajimodiere conducted an interview with twenty former boarding school students and found four major themes in their stories: 1) a sense of cultural loss, loneliness, and displacement when they returned home; 2) physical, mental, and sexual abuse; 3) unresolved grief, mental health issues, relationship issues, and alcohol abuse; and 4) healing through returning to native american spirituality.83 the first three themes further illustrate the devastating effects of the child removal and boarding school practices. the fourth theme, however, underlines the importance of re-establishing a connection with tribes. in addition to the individual harm of removing native american children from their families and tribes, these practices also created concerns about the continued existence of tribes. during the icwa’s congressional hearings, mr. calvin isaac, tribal chief of the mississippi band of choctaw 78 id. at 632. 79 id. (noting that “race matching” dominated the adoption proceedings at the time). 80 h.r. rep. no. 95-1386, at 9 (1978). 81 lehmann, supra note 67, at 515. 82 id. at 515–16. 83 lajimodiere, supra note 41, at 257–58. 206 columbia journal of race and law [vol. 7:1 indians and representative of the national tribal chairmen’s association, testified that: culturally, the chances of indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-indian homes and denied exposure to the ways of their people. furthermore, these practices seriously undercut the tribes’ ability to continue as selfgoverning communities. probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.84 one of the congressmen spearheading the passage of the icwa, rep. morris udall (d-wis.), expressed concern over the inordinately high number of child welfare proceedings which placed indian children into non-indian homes, stating: “the wholesale separation of indian children from their families is perhaps the most tragic and destructive aspect of american indian life today.”85 native american tribes were on track for extinction by the early 1970s, which prompted congress to take steps to prevent that possibility. b. the indian child welfare act: passage and purpose in response to the overwhelming evidence presented to congress regarding the treatment of native american children, congress passed the icwa in 1978. the purpose of the act was to set a minimum standard of practice regarding the removal of native american children from their families.86 84 in re a.j.s, 204 p.3d 543, at 548 (kan. 2009) (quoting part of the 1978 congressional hearings). 85 h.r. rep. no. 95-1386, at 9 (1978). 86 25 u.s.c. § 1902 (2012). no. 4:191] is the indian child welfare act losing steam? 207 specifically, the act intended to protect and preserve tribes and to give tribes jurisdiction over child welfare proceedings.87 section 1902 provides that “it is the policy of this nation to protect the best interests of indian children and to promote the stability and security of indian tribes and families,” by establishing standards to regulate “the placement of such children in foster or adoptive homes which will reflect the unique values of indian culture, and by providing for assistance to indian tribes in the operation of child and family service programs.”88 the icwa provides standards for every stage of the child welfare proceedings, including the initial jurisdiction, termination of parental rights and placement, and conduct after final proceedings. section 1903 defines the key terms of the statute. an indian child is “any unmarried person who is under age eighteen and is either: (a) a member of an indian tribe, or (b) is eligible for membership in an indian tribe and is the biological child of a member of an indian tribe.”89 further, a parent is defined as “any biological parent or parents of an indian child or any indian person who has lawfully adopted an indian child, including adoptions under tribal law or custom. it does not include the unwed father where paternity has not been acknowledged or established.”90 section 1911 dictates who has jurisdiction over child custody proceedings of native american children. jurisdiction is automatically granted to the tribe when the child is domiciled on that reservation.91 in cases where the child is not domiciled on the reservation, the case should also be transferred to the tribe unless the state court can show “good cause” not to transfer.92 in § 1912, the act also requires state agencies to take active efforts to keep families together 87 id. 88 id. 89 25 u.s.c. § 1903(4) (2012). 90 25 u.s.c. § 1903(9) (2012). 91 25 u.s.c. § 1911(a) (2012). 92 25 u.s.c. § 1911(b) (2012). 208 columbia journal of race and law [vol. 7:1 before seeking to place a child in foster care or ultimately terminating parental rights.93 in addition, the state must show that “the continued custody of the child by the parent or indian custodian is likely to result in serious emotional or physical damage to the child.”94 if a native parent wants to voluntarily place a child in care, the act provides consent requirements, the right of parents or a tribe to petition the court, and the ability of the parent to withdraw consent at a later time.95 finally, the act lays out a set of preferences for the placement of a child removed from his or her parents. the state must first try to place the child with an extended family member, with another native american family of the child’s tribe, or with a native american family of a different tribe.96 only after those options have been exhausted can a child be placed with a nonindian family.97 interpretation and enforcement of the act is largely left to the states. a few provisions grant the secretary of the interior the authority to make decisions.98 as this note will discuss below, the lack of a uniform interpretation has led to a diverse set of outcomes. in 1979, the bia issued a set of guidelines interpreting every section of the icwa. however, these guidelines were not binding on state courts. the guidelines only reflected the interpretations of the department of interior. the bia noted in the introduction that some points suggest interpretations 93 25 u.s.c. § 1912(d) (2012). 94 25 u.s.c. § 1912(f) (2012) (creating a stricter standard than the general procedures for terminating parental rights). 95 25 u.s.c. § 1913 (2012) (making it easier for parents to withdraw consent from an adoption). 96 25 u.s.c. § 1915(a) (2012). 97 see 25 u.s.c. § 1915(a) (2012) (listing the three preferred placements in order and placing no further restrictions thereafter if they are impracticable). 98 see 25 u.s.c. § 1918(a) (2012) (requiring the secretary to approve a tribe’s petition to reassume jurisdiction of child custody proceedings where a tribe had previously become subject to state jurisdiction). no. 4:191] is the indian child welfare act losing steam? 209 of the icwa’s language whereas other portions simply restated the language used in the act.99 the most innovative section of the 1979 guidelines was section a. this section established that the policy behind the act was to keep native american children with their families, give tribes greater authority, and place children that were removed into other native american homes.100 moreover, the bia suggested that state court proceedings “shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences.”101 in addition, the guidelines stated that the icwa should be liberally construed in favor of a result that is consistent with the stated policy.102 in 2015, the bia issued an updated set of guidelines that explained terms in greater detail and outlined when and how the icwa should apply.103 the bia noted that those guidelines also include recommendations from the attorney general’s advisory committee on american indian/alaska native children exposed to violence and developments in icwa jurisprudence.104 the 2015 guidelines drastically restructure section a to include a list of key term definitions, including “active efforts,” “custody,” “indian child,” and “parent.”105 section a also clarifies when the act applies and directs that the act not be limited based on the existing indian family exception.106 however, the guidelines do not expressly state the ability of non-custodial parents to invoke the icwa when necessary. in 2016, the bia drafted a new set of rules, which added a new subpart to the department of 99 guidelines for state courts; indian child custody proceedings, 44 fed. reg. 67,584, 67,585 (nov. 26, 1979). 100 id. at 67,585–86. 101 id. at 67,586. 102 id. 103 guidelines for state courts and agencies in indian child custody proceedings, 80 fed. reg. 10,146 (feb. 25, 2015). 104 id. at 10,146. 105 id. at 10,150–51. 106 id. at 10,151–52. 210 columbia journal of race and law [vol. 7:1 interior’s regulations for implementing the icwa.107 these new rules are binding on state courts and help to fill in gaps left by the 2015 guidelines on the existing indian family exception. in order to fully understand the significance of the 2015 guidelines and 2016 rule, it is important to first understand the underlying justifications for the existing indian family exception to the application of the icwa. c. implementation of the icwa and the existing indian family exception congress established broad standards for child welfare proceedings regarding native american children. however, the icwa does not give state courts much guidance on how to implement the statute. additionally, the bureau of indian affairs’ comprehensive guidelines do not bind the states. as such, state courts have applied the icwa differently. some states have interpreted elements of the act in ways that increase protections to native american families.108 for example, south dakota and colorado require clear and convincing evidence before the state can terminate parental rights under § 1912(f).109 other states have created exceptions to the icwa in an attempt to limit its application. one of the most well-known and potentially devastating state court exceptions is the existing indian family exception, which kansas first developed four years after the enactment of the icwa. in 1982, the kansas supreme court ruled in baby boy l. that the icwa was not intended to apply in cases where a traditional family had not previously existed.110 baby boy l. was born to an unwed, non-native mother in january 1981.111 107 indian child welfare act proceedings, 81 fed. reg. 38,778 (june 14, 2016) (to be codified at 25 c.f.r. pt. 23). 108 vujnich, supra note 9, at 191–93. 109 people ex rel. p.b., 371 n.w.2d 366, 371–72 (s.d. 1985); people ex rel. c.a.j., 709 p.2d 604, 606 (colo. app. 1985). 110 in re adoption of baby boy l., 643 p.2d 168 (kan. 1982). 111 id. at 172. no. 4:191] is the indian child welfare act losing steam? 211 the birth mother signed consent papers for the adoption on the same day and the adoptive parents filed with the court soon after.112 notice was subsequently given to the birth father who was incarcerated at the time.113 at this point, the state filed an amendment to find the father to be an unfit parent and terminate his rights.114 the birth father subsequently filed to deny the adoption, find him a fit parent, and grant him custody of the child.115 the initial adoption proceeding only dealt with whether the birth father was a fit and proper parent.116 the court later learned that the birth father was an enrolled member of the kiowa tribe, which led the father to amend his petition alleging that the icwa applied.117 the kiowa tribe also filed papers seeking to intervene and, over the birth mother’s objections, enrolled baby boy l. in the tribe.118 the birth father and kiowa tribe also filed for a change in temporary custody and change in jurisdiction under the icwa.119 the trial court ruled that the icwa did not apply, denied the birth father’s petition for change in custody and jurisdiction, and found the current adoptive placement suitable.120 in support of the ruling, the court noted that the child in question was the illegitimate child of a non-native mother. 121 in addition, the child had never been in the care or custody of his father, was not a member of a native american family nor had he been a part of any native american family.122 finally, the child was not domiciled on a reservation and had not been removed from the family by 112 id. 113 id. at 172–73. 114 id. at 173. 115 id. 116 baby boy l., 643 p.2d at 173. 117 id. 118 id. 119 id. 120 id. 121 id. at 174. the term “illegitimate child” is used in this sentence to reflect the language from the case. 122 baby boy l., 643 p.2d at 174. 212 columbia journal of race and law [vol. 7:1 reason of neglect or abuse, which was the focus of the legislation.123 the birth father and kiowa tribe appealed arguing in part that the icwa applies where the child is member of a tribe and is acknowledged by the birth father, who is also a member of a tribe.124 upon review, the supreme court of kansas upheld the lower court’s decision based on the policy behind the icwa, its legislative history, and the wording of the act itself.125 the court analyzed several sections of the act in order to further support the holding that the icwa was only intended to apply to intact families. first, the court quoted part of § 1902, which established that the act is intended “to promote the stability and security of indian tribes and families.”126 the majority argued that § 1902 makes clear that it intended to set minimum standards for the removal of native american children from native american families and tribes.127 the act was not intended to control the placement of an illegitimate child who was never a part of the tribal culture.128 the majority also took note of the elements of the congressional hearings included in § 1901(4) which highlighted the high rate of native american families that are broken up through removal.129 subsequently, the court highlighted that the language in §§ 1916(b), 1920, and 1922 reflects concerns of removal from an existing native american family.130 this includes language regarding the exclusive jurisdiction for children domiciled on the reservations in § 1911(a), as well as a focus on the efforts to prevent the breakup of a family in § 1912(d).131 finally, the court reasoned that 123 id. 124 id. 125 id. at 175. 126 id. at 175 (emphasis omitted) (quoting 25 u.s.c. § 1902 (1978)). 127 baby boy l., 643 p.2d at 175. 128 id. 129 id. 130 id. 131 id. no. 4:191] is the indian child welfare act losing steam? 213 applying the icwa in this case would have created a result congress did not intend.132 the court found that the birth mother only consented to the two named appellees adopting the child and refused to consent to any other adoptive parent,133 and that if that adoption were denied then the mother’s consent would be void and the child would return to her custody.134 the court believed congress never intended such a “ridiculous result” where a child may not be adopted because of the choices of his mother.135 the kansas supreme court ruling essentially created a prerequisite to the application of the icwa. several other states adopted a similar reasoning in the wake of baby boy l.136 in 1989, the united states supreme court decided mississippi band of choctaw indians v. holyfield, the only other icwa case the court has taken.137 while that case did not expressly address the existing indian family exception, some scholars contend that the court’s ruling implicitly rejected the exception.138 in holyfield, the biological parents were unmarried, registered members of the mississippi band of choctaw indians who lived on the choctaw reservation.139 prior to giving birth to twins, the mother moved off the reservation to live with the adoptive parents.140 in the initial adoption decree, the court did not take into account the native american heritage of the twins or the provision of the icwa.141 two months after the decree was entered the choctaw tribe moved to vacate the adoption on the grounds 132 id. 133 baby boy l., 643 p.2d at 177. 134 id. 135 id. 136 see in re s.a.m., 703 s.w.2d 603 (mo. app. 1986); in re adoption of t.r.m., 525 n.e.2d 298 (ind. 1988). 137 mississippi band of choctaw indians v. holyfield, 490 u.s. 30 (1989). 138 vujnich, supra note 9, at 196. 139 holyfield, 490 u.s. at 37. 140 id. at 38. 141 id. 214 columbia journal of race and law [vol. 7:1 that they had exclusive jurisdiction under the icwa because the twins were domiciled on the reservation.142 the mississippi state court declined to apply the icwa because the twins were not physically born on the reservation and never had contact with the tribe.143 first, the supreme court recounted the congressional hearings leading up to the icwa with a focus on the testimony about “the harm to indian parents and their children who were involuntarily separated by decisions of local welfare authorities” and “the impact on the tribes themselves of the massive removal of their children.”144 after discussing the question of domicile, the court also discussed that congress intended for icwa to apply to adoption placements because of “evidence of the detrimental impact on the children themselves of . . . placements outside their culture.”145 ultimately, the supreme court decided to vacate the adoption placement because the icwa did apply, thus giving the tribe jurisdiction over the case.146 based on this analysis, the court reversed the lower court’s decision on the basis that the mother was domiciled on the reservation and therefore so were the twins, even though they had never been to the reservation.147 the court also deferred to the choctaw tribe to determine if the tribe’s interest to raise the children outweighs allowing the children to remain with their adoptive parents off the reservation.148 on the one hand, holyfield can be read narrowly as simply addressing the question of jurisdiction under the icwa. on the other hand, this case can be read more broadly in recognizing the main purpose of the icwa, and for applying the act to the placement of children that had not been removed from a previously existing family. the court carefully examined congress’s intent for the act and quoted 142 id. 143 id. at 39. 144 id. at 34. 145 holyfield, 490 u.s. at 49–50. 146 id. at 53–54. 147 id. 148 id. at 54. no. 4:191] is the indian child welfare act losing steam? 215 extensively from the act’s congressional hearings. furthermore, the court applied the act to the adoption of a set of twins who were given up for adoption by an unwed mother, a situation that would be covered by the icwa under the existing indian family exception. for this reason, some scholars149 and state courts150 have cited holyfield to support rejecting the existing indian family exception. most states have abolished or rejected the existing indian family exception by either case law or statute.151 additionally, some states never recognized this exception. for example, the supreme court of new jersey declined to adopt the baby boy l. opinion in in re adoption of child of indian heritage.152 the new jersey court rejected baby boy l. because it used the voluntariness of the conduct of the mother in relinquishing the child for adoption as a “determinative jurisdictional test,” which the act itself does not establish as a factor.153 instead, the court looked at the icwa as a whole and found that it was meant to include all proceedings that result in the termination of the parent-child relationship based on the language in § 1903(1)(i)–(ii) and the procedures for a voluntary termination of parental rights listed in § 1913.154 the court noted that while the mother has a right to advocate for the best interests of her child, consideration must also be given to the father and to congress’s goal in maintaining a relationship between the child and the tribe.155 several other states once applied the exception, but have since rejected it. in oklahoma, for example, the state 149 see lewerenz & mccoy, supra note 13, 699–702. 150 see in re adoption of t.n.f., 781 p.2d 973, 978 (alaska 1989); in re adoption of baade, 462 n.w.2d 485, 489–90 (s.d. 1990) (overruling a previous case upholding the existing indian family exception in light of holyfield). 151 vujnich, supra note 9, at 197–98. 152 in re adoption of a child of indian heritage, 543 a.2d 925, 932 (n.j. 1988). 153 id. 154 id. 155 id. 216 columbia journal of race and law [vol. 7:1 courts initially applied the exception.156 however, the legislature amended the oklahoma indian child welfare act in 1994 to include that tribes possess a valid governmental interest in indian children “regardless of whether or not said children are in the physical or legal custody of an indian parent or indian custodian at the time state proceedings are initiated.”157 the act was further amended to stipulate that “the oklahoma indian child welfare act applies to all state voluntary and involuntary child custody court proceedings involving indian children, regardless of whether or not the children involved are in the physical or legal custody of an indian parent or indian custodian at the time state proceedings are initiated.”158 subsequently, the oklahoma supreme court overturned their previous decisions in light of holyfield and changes in the legislative language.159 the most significant rejection of the existing indian family exception was the supreme court of kansas decision overruling baby boy l. in 2009, the kansas supreme court heard in re a.j.s., a case regarding the adoption of a cherokee child whose mother was not native american and whose father was a member of a tribe but had not been involved in the child’s life prior to the proceedings.160 the district court ruled that the icwa did not apply based on baby boy l.161 the kansas supreme court, however, overturned baby boy l. in light of holyfield, as well as changing attitudes towards the exception in other states.162 the court cited the ruling in holyfield as highlighting “the central importance of the relationship between an indian child and his or her tribe, independent of any parental relationship.”163 furthermore, the court recognized that holyfield determined that the icwa 156 see in re s.c., 833 p.2d 1249, 1254–56 (okla. 1992). 157 1994 okla. sess. law serv. 30 (west). 158 id. 159 in re baby boy l., 103 p.3d 1099, 1103–06 (okla. 2004). 160 in re a.j.s., 204 p.3d 543, 544 (kan. 2009). 161 id. 162 id. at 549. 163 id. at 547. no. 4:191] is the indian child welfare act losing steam? 217 grew out of concerns for preserving the tribal interests in children, interests that could not be defeated by the parents’ choices.164 the court quoted extensively from holyfield, focusing on the sections that included testimony from the congressional hearings, in order to support this interpretation.165 the kansas supreme court also took into account the development of icwa interpretation and common law to help support their decision to overturn baby boy l. first, the court recognized that an extensive number of states had either outright rejected the exception or had once followed the exception but have since overruled those decisions.166 in addition, the court noted that there have been two unsuccessful efforts to amend the icwa in light of the existing indian family exception, one directed at overruling it and the other endorsing it.167 the court also took note of other states and commentators, who have criticized the practice.168 most importantly, the court found that the logic in baby boy l. was flawed and at odds with the language of the act.169 in baby boy l., the court ruled in part that the child would never be placed with a family if the icwa applied because the mother refused to consent to any other adoptive placement.170 however, in in re a.j.s. the court determined that the mother’s testimony only goes to her intentions, and that the father and the tribe still have a right to be heard.171 congress intended to protect the interests of both parents as well as the tribe and the child when it passed the icwa. 164 id. at 548. 165 id. at 547–48. 166 in re a.j.s., 204 p.3d at 548–49. 167 id. at 549 (comparing indian child welfare act amendments of 1987, s. 1976, 100th cong., 1st sess., 133 cong. rec. (1987), which sought to overrule the exception, with h.r. 3275, 104th cong. (1996), which sought to endorse the exception). 168 id. at 550. 169 id. at 549. 170 in re adoption of baby boy l., 643 p.2d 168, 177 (kan. 1982). 171 in re a.j.s., 204 p.3d at 550. 218 columbia journal of race and law [vol. 7:1 those interests should not be overlooked simply because of the desires of the birth mother. taking all of these factors into account, the kansas supreme court overturned baby boy l., a moment that for many signaled the end of the existing indian family exception.172 d. critiques of the existing indian family exception in addition to a number of state courts rejecting the existing indian family exception, scholars have also raised a number of critiques. first, there are concerns that the exception ignores the plain language of the icwa text.173 congress defined an indian child as a child who is a member of a tribe or who is the biological child of a person who is a member and the child is eligible for membership.174 however, the existing indian family exception adds additional requirements. under the exception, the child must also be living in an indian family or have a relationship with the tribal culture.175 other critiques focus on the lack of uniform results between states. for example, cheyañna jaffke argues that the use of the existing indian family exception is both “unreliable and inconsistent” with the language of the icwa.176 the act was intended to create a federally uniform standard. however, the exception creates different outcomes in different states based on which states apply or reject the exception. furthermore, different courts have different understandings of what constitutes a family. also, charmel cross argues that the existing indian family exception is 172 lewerenz & mccoy, supra note 13, at 718–22. 173 see cheyañna l. jaffke, judicial indifference: why does the “existing indian family” exception to the indian child welfare act continue to endure?, 38 w. st. u. l. rev. (2011). 174 25 u.s.c. § 1903(4) (2012). 175 jaffke, supra note 173, 142–43. 176 id. at 148–49. no. 4:191] is the indian child welfare act losing steam? 219 inconsistent with the icwa, specifically § 1913.177 cross writes that the existing indian family exception would suggest that children released for adoption at the hospital would not fall under the icwa.178 however, she contends that § 1913 covers just this scenario.179 it requires that consent for voluntary placements be given at least ten days after the child’s birth.180 therefore, “[i]f congress did not intend for the act to apply to native american infants adopted directly from the hospital then there would not be a need for section 1913’s requirements.”181 iii. adoptive couple v. baby girl: the new existing indian family exception case? a. factual background of adoptive couple v. baby girl at the time baby veronica, the child at the center of adoptive couple v. baby girl, was conceived, her parents were engaged.182 despite the engagement, the father refused to provide financial support until the two were married.183 the couple’s relationship subsequently ended five months into the pregnancy and they had little contact after that point.184 in june 2009, before baby veronica was born, the mother asked if the father would either provide support or relinquish his rights.185 the birth father agreed, via a text message, to relinquish his rights.186 the birth father did not provide any support to the birth mother or attempt to partake in his 177 charmel l. cross, the existing indian family exception: is it appropriate to use a judicially created exception to render the indian child welfare act of 1978 inapplicable?, 26 cap. u. l. rev. 847, 879 (1997). 178 id. at 891. 179 id. 180 25 u.s.c. § 1913(a) (2012). 181 cross, supra note 177, at 891. 182 adoptive couple v. baby girl, 133 s. ct. 2552, 2558 (2013). 183 id. 184 id. 185 id. 186 id. 220 columbia journal of race and law [vol. 7:1 daughter’s life.187 after deciding to place baby veronica up for adoption, the birth mother contacted the cherokee nation because she believed the birth father to be a member.188 however, due to mistakes in the letter, the nation did not find the father in their records.189 the birth mother moved forward with the adoption.190 she chose a non-native family from south carolina.191 the adoptive parents were present when baby veronica was born in oklahoma and the birth mother relinquished her parental rights the following day.192 four months after the birth, the birth father received notice of the adoption, at which point he signed papers stating that he accepted service but that he did not consent to the adoption.193 the birth father subsequently requested a stay of the adoption proceedings and filed for custody of baby veronica.194 in south carolina family court, a trial was held to determine the adoption placement of baby veronica.195 before the start of the trial, family court determined that the icwa applied to this case.196 the trial court ruled that the adoptive couple had not met its burden under § 1912(f) to show that the child would experience harm in the care of her father.197 thus, the adoption was denied and the father gained custody. the south carolina supreme court affirmed that decision.198 it found that the father was considered a parent under the icwa.199 the court held that the adoptive couple failed to show that they had taken active efforts to maintain the family 187 id. 188 adoptive couple, 133 s. ct. at 2558. 189 id. 190 id. 191 id. 192 id. 193 id. 194 adoptive couple, 133 s. ct. at 2558. 195 id. at 2559. 196 adoptive couple v. baby girl, 731 s.e.2d 550, 635 (s.c. 2012). 197 adoptive couple, 133 s. ct. at 2559. 198 id. 199 id. no. 4:191] is the indian child welfare act losing steam? 221 set out in § 1912(d).200 in addition, the couple failed to show harm to the child if she remained in her father’s care as required under § 1912(f).201 finally, the court determined that even if the biological father was deemed unfit, the placement preferences under § 1915(a) would still apply to baby veronica’s case.202 b. the united states supreme court’s decision in adoptive couple v. baby girl on appeal, the united states supreme court addressed the application of three sections of the icwa to the facts of the case: § 1912(f) and § 1912(d), regarding termination of parental rights, and § 1915(a), regarding placement preferences.203 the court assumed that the biological father was a parent under the icwa, but held that the statute did not apply in this case because baby veronica had not been removed from a previously intact family.204 further, the birth father did not have custody of the child, which prevented him from invoking the icwa.205 finally, the court held that the placement preferences under § 1915(a) did not bar the adoptive couple from taking custody of the child.206 the court began its inquiry with § 1912(f). the majority focused on the meaning of “continued custody” to conclude that the section applied to parents that have or previously had custody of their child.207 section 1912(f) does not apply to parents that never had physical or legal custody 200 id. 201 id. 202 id. 203 adoptive couple, 133 s. ct. at 2554–55. 204 id. at 2556–57. 205 id. at 2562. 206 id. at 2564. the supreme court also discussed the applicability of the placement preferences under § 1915(a), but determined that they do not apply in this case. this analysis is not relevant to issues addressed in this note and is therefore not discussed. 207 id. at 2560. 222 columbia journal of race and law [vol. 7:1 of the child.208 the court justified this reading based on the statutory language of § 1901(4), which states that the purpose of the icwa is to prevent “unwarranted removal of indian children from indian families due to cultural insensitivity and biases of social works and state courts.”209 the court concluded that where the non-native parent, who had sole custody rights, voluntarily places a native american child up for adoption, the icwa’s primary goal is not at issue and therefore the § 1912(f) does not apply.210 in addition, the court also found persuasive the nonbinding guidelines issued by the bureau of indian affairs in 1979, which suggest that § 1912(f) focused on removal of a child from a family.211 the relevant guideline states that under § 1912(f) “[a] child may not be removed simply because there is someone else willing to raise the child who is likely to do a better job . . . [i]t must be shown that . . . it is dangerous for the child to remain with his or her present custodians.”212 based on this interpretation of § 1912(f), the birth father could not invoke the icwa because he never had legal or physical custody of his daughter. it is an undisputed fact that the birth father never had physical custody of baby veronica.213 in addition, under state laws in south carolina and oklahoma, the biological father never had legal custody.214 based on this analysis, the united states supreme court found that south carolina erred in holding that § 208 id. 209 adoptive couple, 133 s. ct. at 2561. 210 id. at 2560–61. 211 id. 212 guidelines for state courts; indian child custody proceedings, 44 fed. reg. 67,584, 67,593 (nov. 26, 1979) (emphasis added). 213 adoptive couple, 133 s. ct. at 2562. 214 id.; see also s.c. code ann. §63-17-20(b) (2010) (“unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child”); okla. stat., tit. 10, § 7800 (west 2013) (“except as otherwise provided by law, the mother of a child born out of wedlock has custody of the child until determined otherwise by a court of competent jurisdiction”). no. 4:191] is the indian child welfare act losing steam? 223 1912(f) barred a termination of the birth father’s parental rights.215 the court then turned to the language of § 1912(d), emphasizing, “to prevent the breakup of the indian family,” in order to hold that this provision did not apply in this case.216 the court held that “breakup” refers to the discontinuance of a relationship. therefore, the section only applied to cases where the termination of parental rights would result in the breakup of a native american family. where a parent abandons the child before birth and never had custody of the child, there is no “breakup” of a family relationship, and thus § 1912(d) does not apply.217 the majority opinion suggests that this interpretation is consistent with the stated purpose of the statue, the bia guidelines, and the statutory language of other § 1912 subsections.218 first, the majority quotes part of § 1902, which states that the purpose of the act is to set-up certain “standards for the removal of indian children from their families.”219 second, the majority quotes a section of the 1979 bia guidelines, suggesting that § 1912(d) is intended “to alleviate the need to remove the indian child from his or her parents or indian custodians, not to facilitate a transfer of the child to an indian parent.”220 finally, the court looks to the language in § 1912(e) and § 1912(f), which requires a showing that the “continued custody” of the child by the parent will result in serious harm before placing a child in foster care or terminating their parental rights.221 the court uses these sections to suggest that the phrase “breakup of the indian family” should be read in a similar manner as “continued 215 adoptive couple, 133 s. ct. at 2562. 216 id. 217 id. 218 id. at 2563. 219 id. at 2563 (quoting 25 u.s.c. § 1902 (2014)) (emphasis added). 220 id. (internal quotations omitted). 221 adoptive couple, 133 s. ct. at 2563; see also 25 u.s.c. § 1912(e)– (f) (2012). 224 columbia journal of race and law [vol. 7:1 custody.”222 the majority opinion also suggests that it would be “unusual” and “bizarre” to apply § 1912(d) to this case and require social workers or adoptive parents to attempt to encourage the birth father, who had previously been absent, to take an interest in becoming a parent.223 the court felt this would dissuade prospective adoptive parents and consequently prevent native american children from finding permanent homes.224 in conclusion, the supreme court determined that the icwa did not apply to a native american parent who qualified as a parent under the statute, but who never had custody of the child. thus, the supreme court granted adoptive couple custody of baby veronica. c. justice sotomayor’s dissenting opinion in adoptive couple v. baby girl justice sotomayor’s dissent in adoptive couple highlights the flaws in the complex analysis of the majority opinion. sotomayor focuses on two main issues with the majority opinion: the fact that the analysis is based on a single phrase from § 1912(f) and that the majority expressly challenges congress’s explicitly stated purpose for the statute.225 the dissent argues that the majority’s reading skews the structure and scope of the act and will have much broader long-term consequences.226 furthermore, justice sotomayor suggests that the majority opinion is inconsistent with the ruling in holyfield, which holds that the icwa was intended to create uniform federal definitions.227 finally, justice sotomayor notes that the majority’s illogical reading of the statute would have been explainable if it was meant to avoid anomalous results or further a congressional policy, but this was not the case here.228 222 adoptive couple, 133 s. ct. at 2563. 223 id. at 2563–64. 224 id. at 2564. 225 id. at 2572. 226 id. at 2573. 227 id. at 2574. 228 adoptive couple, 133 s. ct. at 2580. no. 4:191] is the indian child welfare act losing steam? 225 the dissenting opinion’s first section suggests that the statute does not support a reading where the birth father is deemed a parent, but then denied the substantive protections of the law.229 the majority’s interpretation of “continued custody” in § 1912(f) “cannot bear the interpretive weight the majority would place on it.”230 the reading of “breakup of the indian family” from § 1912(d) is a narrow construction that is not supported by the text.231 additionally, the dissent highlights that excluding non-custodial fathers from the icwa “misapprehends the icwa’s structure and scope” and creates an “illogical piecemeal” of federal and state law.232 essentially, the majority’s reasoning “necessarily extends to all indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting.”233 to illustrate this point, the dissent describes a biological father who has been involved in the life of his child, but never had custody and therefore cannot benefit from the protections of the icwa.234 while the majority suggests that this outcome is based in state law, such an outcome conflicts with congress’s original intent to create a uniform federal standard.235 the dissent asserts that it is illogical to suppose that congress intended for the icwa to both set “minimum federal standards” for the termination of parental rights and also create a “patchwork of federal state law” to apply to the same process.236 the dissent sees no reason why congress would intend to “leave protection of the parental rights of a subset of icwa parent[s] dependent on the happenstance of where a particular child custody proceeding takes place.”237 instead, based on the totality of the commands, the standards 229 id. at 2575. 230 id. at 2577. 231 id. at 2575. 232 id. at 2573. 233 adoptive couple, 133 s. ct at 2573. 234 id. at 2578–79. 235 id. at 2579. 236 id. 237 id. (internal quotation marks omitted). 226 columbia journal of race and law [vol. 7:1 set forth in the icwa should apply to the termination of all parental rights of native american parents.238 the dissent next addresses the “textually strained and illogical reading of the statute” that is not justified by a need to avoid anomalous results or further a congressional policy.239 first, regarding § 1912(d), the dissenting opinion argues that § 1912(d) should apply to this case.240 social services “can and do provide” rehabilitative services to family relationships where the father previously did not have custody of the child.241 placing an evidentiary burden on the party moving to terminate the father’s rights is both necessary and justified because erroneously terminating parental rights has devastating effects on the family.242 under the majority opinion’s reasoning, congress could not have intended for the icwa “to recognize a parentchild relationship between birth father and baby girl that would have to be legally terminated (either by valid consent or involuntary termination) before the adoption could proceed.”243 in other words, courts should not recognize a biological father as a parent just to terminate his rights without any additional consideration. such a practice is not the most efficient use of judicial resources. the dissent notes that while these laws can lead to distressing outcomes, “biological fathers have a valid interest in a relationship with their child” and children have a similar “interest in knowing their biological parents.”244 furthermore, it does not logically follow that the icwa would “render the legal status of an indian father’s relationship with his biological child fragile, but would instead grant it a degree of protection commensurate with the more robust state-law standards.”245 238 id. at 2579–80. 239 adoptive couple, 133 s. ct. at 2580. 240 id. 241 id. 242 id. 243 id. at 2581. 244 id. at 2582. 245 adoptive couple, 133 s. ct. at 2583. no. 4:191] is the indian child welfare act losing steam? 227 rather than preventing anomalous results, the majority opinion created conflicting results. justice sotomayor’s dissent highlights the major flaws in the majority opinion’s reasoning. two key points from this dissent will be important in the subsequent sections of this note: 1) the fact that this case will affect icwa protections for all non-custodial biological fathers, and 2) that biological fathers have an interest in having a relationship with their children. without further intervention, the icwa will no longer have authority over a class of biological fathers that deserve the protection of the statute. d. improper interpretation of icwa justice sotomayor’s dissent in adoptive couple raises several key issues with the court’s analysis, but does not address every relevant criticism of the decision. an article by dustin jones, written the year after adoptive couple was decided, further critiques the court’s analysis.246 jones’s article goes beyond the dissenting opinion and analyzes the ways in which adoptive couple disregards congressional intent and creates a legal vacuum regarding absentee native american parents that state law will ultimately control. more importantly, the jones article draws a connection between the adoptive couple decision and the existing indian family exception. jones argues that adoptive couple creates two classes of native american parents, which contradicts the legislative history and intent of the icwa.247 while congress intended for the icwa to protect tribal interests and parental rights in native american children, the majority opinion selectively reads the legislative history in order to get a specific outcome 246 dustin c. jones, adoptive couple v. baby girl: the creation of second-class native american parents under the indian child welfare act of 1978, 32 law & ineq. 421 (2014). 247 id. at 435–41. 228 columbia journal of race and law [vol. 7:1 and deprive a non-custodial parent of his rights.248 first, jones contends that the court’s selective reading of “continued custody” imposes a value judgment on absentee native american parents that is not in the legislative history of the icwa.249 second, jones notes that the use of “parent” in the legislative history of the icwa differs from its use in the majority opinion.250 based on legislative history, the “house report defines ‘parent’ to mean ‘any biological parent or parents of an indian child or any indian person who has lawfully adopted an indian child, including adoptions under tribal law or custom.’”251 however, the majority opinion defines “parent” based on the legal or physical custody a native american parent has or does not have over the child in question.252 the jones article also argues that the adoptive couple decision does not follow the canons of indian law construction.253 the rules of construction apply where a statue is ambiguous.254 the icwa is ambiguous on how to treat absentee native american parents. following the canons of construction, an ambiguous expression is resolved in favor of native american parties and treaties are interpreted as the tribes would have interpreted them.255 the language of the treaty or statute should be liberally constructed in favor of native americans.256 however, the majority opinion does not adhere to a favorable reading of the icwa.257 instead, the majority’s “cherry-picking of some language” from the statute and legislative history overlooks 248 id. at 438–39; see also 25 u.s.c. § 1902 (2012) (declaring “that it is the policy of this nation to protect the best interests of indian children and to promote the stability and security of indian tribes and families”). 249 jones, supra note 246, at 439. 250 id. at 439–40. 251 id. (quoting h.r. rep. no. 95-1386, at 2 (1978)). 252 id. at 439. 253 id. at 440–42. 254 id. at 441. 255 jones, supra note 246, at 440–41. 256 id. at 441. 257 id. no. 4:191] is the indian child welfare act losing steam? 229 the policy behind the icwa as well as the hope of granting greater sovereignty to tribes.258 overall, the jones article expands on the critiques laid out by justice sotomayor in her dissent. e. adoptive couple and the existing indian family exception the most important critique of adoptive couple focuses on how the analysis in that case is very similar to the logic used in the existing indian family exception cases. there are two ways of interpreting the adoptive couple opinion: 1) broadly such that the decision renews support for the existing indian family exception; or 2) narrowly and contained to the facts and analysis of the case. although adoptive couple does not reference the existing indian family exception or any case law on the subject, the reasoning behind the exception is similar to reasoning in adoptive couple and thus the outcomes will be similar.259 factually, adoptive couple is very similar to baby boy l. in addition, the courts in both cases conduct a selective analysis of the icwa to determine that it does not apply to non-custodial native american parents. this section highlights the similarities between adoptive couple and baby boy l. by pointing out these similarities, this section strives to show how adoptive couple implicitly affirms the existing indian family exception and the potential negative effects of this close connection. factually, both decisions highlight the fact that the relevant birth fathers had not provided financial support to the child or attempted to be a part of the child’s life. both cases involve a non-native, unwed mother who consented to the adoption of her child shortly after birth.260 in both cases, the birth father was not involved during the pregnancy or 258 id. 259 kathleena kruck, notes and comments, the indian child welfare act’s waning power after adoptive couple v. baby girl, 109 nw. u. l. rev. 445, 470 (2015). 260 adoptive couple, 133 s. ct. 2558; baby boy l., 643 p.2d at 172. 230 columbia journal of race and law [vol. 7:1 present at the birth of their child, had not given any financial support to the child or the mother, and had not expressed an interest in being a part of the child’s life.261 only after they received notice of the child’s adoption by a non-indian family did the fathers attempt to stop the adoptions under icwa.262 based on these facts, both decisions determined that congress only intended to regulate previously intact families, which did not exist in either of these situations.263 there are also similarities in the analysis and reasoning of adoptive couple and baby boy l. both decisions focus on similar phrases and sections of icwa to support a finding that the act does not apply. both cases highlight “continued custody” and “breakup of an indian family” from § 1912(d) and § 1912(f).264 the kansas supreme court cites to “continued custody” and “breakup of an indian family” in baby boy l. as part of a list of icwa sections that support its interpretation that the icwa only protects intact families.265 while the court did not engage in an in-depth analysis of the language, it still used the language to limit the icwa as applying to non-custodial parents. the supreme court in adoptive couple used the same language to conduct a detailed analysis of what congress intended by its use of “continued custody” and “breakup of the indian family.”266 however, the supreme court ultimately came to the same conclusion as the kansas supreme court. implicitly, both cases share a belief that where the language is silent on a question of jurisdiction or definitions, the icwa does not apply.267 therefore, because the icwa does not address the rights of absentee or non 261 adoptive couple, 133 s. ct. at 2558; baby boy l., 643 p.2d at 172–73. 262 adoptive couple, 133 s. ct. at 2558–59; baby boy l., 643 p.2d at 173. 263 adoptive couple, 133 s. ct. at 2562–63; baby boy l., 643 p.2d at 175–76. 264 adoptive couple, 133 s. ct. at 2560, 2563; baby boy l., 643 p.2d at 175. 265 baby boy l. 643 p.2d at 175. 266 adoptive couple, 133 s. ct. at 2560–64. 267 jones, supra note 246, at 445. no. 4:191] is the indian child welfare act losing steam? 231 custodial parents, congress never intended for the act to protect the rights of that class of parents. based on the analysis above, adoptive couple may bolster support for the existing indian family exception. the majority opinion in adoptive couple follows a similar reasoning to that used in baby boy l., which provides support for the logic and conclusion in the existing indian family exception cases.268 moreover, the decisions reinforce the cultural misconceptions about traditional family structures by not recognizing a biological father who does not live with or have custody of his child.269 on the other hand, adoptive couple does not expressly support or adopt the existing indian family exception. adoptive couple can be read in a way that is limited to the interpretation of a few sections and only applies in a limited number of cases where the noncustodial parent seeks to intervene in an adoption. even if the majority decision in adoptive couple is sufficiently narrow to avoid reaffirming the existing indian family exception, it has still limited the application of the icwa in a negative way. f. constitutional rights of non-custodial fathers following adoptive couple adoptive couple limits the category of parents who are eligible for protection under icwa. the majority contends that congress purposefully excluded fathers who have not acknowledged their child, established their paternity, or attempted to gain custody of their child. this ruling is particularly devastating to parents who never had the opportunity to have a relationship with their child. such examples include parents who are incarcerated, deployed overseas, and parents who were unaware of the child because 268 kruck, supra note 259, at 468–69. 269 id. at 469. 232 columbia journal of race and law [vol. 7:1 the birth was concealed from them.270 as justice sotomayor highlights in her dissent, the court’s ruling will also prevent fathers who have never had legal custody from invoking the protections of icwa. this will include fathers would otherwise have provided for their child.271 in addition, the opinion runs counter to the constitutional rights of noncustodial fathers. the dissenting opinion addresses the constitutionality of the non-custodial father and the importance of upholding the parent-child relationship.272 the united states supreme court decided a number of cases in the 1970s and 1980s that established the rights of a non-custodial father to be involved in the upbringing of his children.273 constitutional protections of non-custodial fathers, however, have only been extended to fathers who had previously established a relationship with their child. in stanley v. illinois, the court established that a father has an interest in his children that must be protected absent a countervailing interest.274 the father in this case, peter stanley, sought to intervene in the placement of his children, who entered the child welfare system when their mother died, pursuant to illinois law.275 stanley, however, had once lived with the children and had been part of their lives prior to the death of their mother.276 the united states supreme court found that stanley was entitled to a hearing about his fitness as a parent before losing his parental rights under the due process and equal protection clauses of the fourteenth amendment.277 the court determined that just because 270 danielle j. larson, note, you’re breaking up: the faulty connection between congressional intent and supreme court interpretation in adoptive couple v. baby girl, 133 s. ct. 2552 (2013), 93 neb. l. rev. 517, 538–39 (2014). 271 adoptive couple, 133 s. ct. at 2578–80. 272 id. at 2582. 273 see, e.g., stanley v. illinois, 405 u.s. 645 (1972); caban v. mohammed, 441 u.s. 380 (1979). 274 stanley, 405 u.s. at 651. 275 id. at 646. 276 id. 277 id. at 649. no. 4:191] is the indian child welfare act losing steam? 233 unmarried fathers were usually found to be unfit parents does not allow the state to forego a hearing for every unmarried father.278 a few years later, the united states supreme court determined in caban v. mohammed that creating different standards for intervening in an adoption based on gender violated the equal protection clause.279 in that case, the birth father motioned to intervene in the adoption of his children by their stepfather, but was unable to under new york law.280 the court determined that mothers and fathers are not so different to warrant different treatment under the law.281 in both stanley and caban, the birth fathers had been a part of their children’s lives prior to the adoption proceedings at issue. in subsequent cases, fathers who had not been previously involved in their child’s life were not granted the same protections under stanley and caban. in quilloin v. walcott, for example, the birth father had not been involved in his child’s life for the last eleven years, but wanted to prevent the child’s stepfather from adopting the child.282 the united states supreme court held that applying a “best interests of the child” standard did not violate the due process clause where the birth father had never made an attempt to gain custody of the child.283 furthermore, the equal protection clause did not require the same standard as for fathers who had previously taken on the responsibility of being a parent.284 the similar situation between the birth father in quilloin and adoptive couple further supports the determination that the icwa should not apply to the birth 278 id. at 656. 279 caban v. mohammed, 441 u.s. 380, 391–92 (1979). 280 id. at 383–84. 281 id. at 391–92. 282 quilloin v. walcott, 434 u.s. 246, 249–50 (1978). 283 id. at 255. 284 id. at 256. 234 columbia journal of race and law [vol. 7:1 father in adoptive couple.285 still, the dissenting opinion in adoptive couple argues that recognizing the parent-child relationship aligns with the purpose of the icwa to provide greater protection for the familial bond of native american families than state law currently grants.286 a system of uniform icwa rights to parents furthers the policy to maintain native tribes and families. iv. reviving the indian child welfare act as the previous section illuminates, the ruling in adoptive couple v. baby girl will potentially have drastic and harmful effects on the application of the icwa. the united states supreme court did not explicitly apply the existing indian family exception in any part of its opinion. the court also did not draw on any of the state cases that have applied the exception. even so, the language in the majority opinion closely tracks the language of the decision in baby boy l. and other existing indian family exception cases, which may signal the re-emergence of the exception. even absent a full resurgence of the existing indian family exception, adoptive couple still weakens the icwa as it pertains to a class of native american parents, namely non-custodial parents. in order to protect the parental rights of all native americans and to ensure that any native american parent can invoke the icwa, the language of the act must be amended. in 2015, the bureau of indian affairs published an updated set of guidelines for the icwa, which includes language meant to address the potential effects of the existing indian family exception. however, the bureau’s 2015 guidelines do not clarify what law should determine continued custody, what factors should or should not be used to 285 see quilloin, 434 u.s. at 249–50 (noting birth father did not attempt to establish that he was the father of the child in question for eleven years); adoptive couple v. baby girl, 133 s. ct. 2552, 2558 (2013) (finding the birth father “made no meaningful [attempt] to assume his responsibility of parenthood” and he later signed the papers consenting to the adoption). 286 adoptive couple, 133 s. ct. at 2575. no. 4:191] is the indian child welfare act losing steam? 235 determine application, and how to evaluate when to terminate the parental rights of a non-custodial parent. many commentators felt that the 2015 guidelines did not go far enough. they wanted the department of interior to issue binding regulations regarding the implementation of the icwa to ensure uniform application across the nation.287 after accepting comments on a draft rule, the bureau issued a final rule that adds a new subpart to 25 c.f.r. 23 and is effective as of december 12, 2016.288 the first part of this section describes the new rule, the additions made, and the areas where the bia declined to go further. although the new rule imposes additional interpretations and regulations for state courts, it does not go far enough towards creating a uniform federal standard with respect to the rights of noncustodial fathers. thus, the second part of this section proposes either a congressional amendment to the icwa or, in the alternative, calls for new state laws to increase the protections of unwed native fathers. a. the new final rule for indian child welfare act proceedings pursuant to 25 u.s.c. § 1952, the department of interior has the authority to issue necessary rules and regulations relevant to carrying out the act.289 in march 2015, the department released a proposed rule for comment. after receiving comments from a variety of organizations and individuals that work with native american children and have expertise in child-welfare, the department issued a final 287 indian child welfare act proceedings, 81 fed. reg. 38,778, 38784 (june 14, 2016) (to be codified at 25 c.f.r. pt. 23). 288 id. at 38,778. 289 25 u.s.c. § 1952 (1978); see also indian child welfare act proceedings, 81 fed. reg. at 38,785 (june 14, 2016) (concluding that the department’s rulemaking authority includes authority to issue binding rules at this time because of the icwa’s “broad and general” grant of rulemaking authority to the department). 236 columbia journal of race and law [vol. 7:1 rule which added a new subpart to 25 c.f.r. 23.290 this final rule is effective as of december 12, 2016.291 the final rule updates the current rule and adds an additional section aimed at promoting uniform application and clarifying state court implementation.292 this rule includes updated definitions of “continued custody” and “indian child,” as well as the description of the application of the act.293 the comments and responses to the final rule also highlight that these changes were made to create a uniform federal standard, address discrepancies in state courts, and directly address the existing indian family exception.294 the comments to the rule express that conflicting application can threaten rights that the act meant to protect.295 the final rule defines “continued custody” as physical custody and/or legal custody, under any applicable tribal law or tribal custom or state law, that a parent or indian custodian already has or had at any point in the past.296 the only change between this definition and the one issued in 2015 is the inclusion of using tribal law, tribal custom, or state law to determine custody for the purposes of continued custody.297 the comments to the new rules note that this definition aligns with the icwa and adoptive couple. first, the definition is in line with the icwa, which defines legal custody and parental rights based on tribal and state law in other sections 290 indian child welfare act proceedings, 81 fed. reg. at 38,778 (june 14, 2016). 291 id. 292 id. at 38,779. 293 id. at 38,865–66. 294 id. at 38,782. 295 id. 296 indian child welfare act proceedings, 81 fed. reg. at 38,865 (june 14, 2016). 297 the 2015 bia guidelines define “continued custody” as “physical and/or legal custody that a parent already has or had at any point in the past. the biological mother of a child has had custody of a child.” guidelines for state courts and agencies in indian child custody proceedings, 80 fed. reg. at 10,151 (feb. 25, 2015). no. 4:191] is the indian child welfare act losing steam? 237 of the act.298 second, the rule includes custody that a parent had at some point in the past, which it views as in line with holding in adoptive couple that the birth father never had physical or legal custody.299 the department declined to include that a biological father has “continued custody” even without physical or legal custody, unless he abandoned the child prior to birth. however, biological mothers are automatically presumed to have custody of the child.300 the comments note that this definition is consistent with adoptive couple’s determination that the father never had custody of his daughter under the applicable state law. declining to include this broader definition of custody will have the greatest impact on unwed native fathers, similar to the father in adoptive couple, who cannot establish custody under state law but who have shown an interest in directing their child’s future. the rule also declines to set a hierarchy of law to look to, tribal or state. it can be inferred from rest of the act that tribal law should take priority, but the rule leaves open the possibility for state law to take priority.301 next, the final rule defines “parent” as “any biological parent or parents of an indian child, or any indian who has lawfully adopted an indian child” and “does not include the unwed biological father where paternity has not been acknowledged or established.”302 a few commenters have 298 indian child welfare act proceedings, 81 fed. reg. at 38,792 (june 14, 2016). 299 id. 300 id. 301 see h.r. rep. no. 95-1386, at 23 (1978) (stating that the focus of the placement preferences provision of 25 u.s.c. § 1915 is “to protect the rights of the indian child as an indian and the rights of the indian community and tribe in retaining its children in its society”); 25 u.s.c. § 1911 (2012) (granting jurisdiction to tribal courts except for a showing of a good cause for state courts to have jurisdiction and granting tribes the right to intervene in state court child custody proceedings regarding a member of their tribe). 302 indian child welfare act proceedings, 81 fed. reg. at 38,865 (june 14, 2016). 238 columbia journal of race and law [vol. 7:1 suggested creating a federal standard for establishing or acknowledging paternity following a state court split and justice sotomayor’s dissent in adoptive couple.303 as discussed above, part of sotomayor’s dissent argues that the court’s decision is inconsistent with its decision in holyfield, holding that congress intended for the icwa to create a uniform federal standard.304 along those lines, it is illogical for congress to create both a minimum federal standard and a patchwork of federal and state law for termination of parental rights.305 the commenters recommended that the rule include language from the 2015 guidelines that “requir[es] an unwed father to ‘take reasonable steps to establish or acknowledge paternity.’”306 however, relying on the constitutional rights already granted to unwed fathers in stanley v. illinois, and the subsequent cases, the department rejected this recommendation.307 the commenters also note that many state courts have already interpreted icwa to require an unwed father to at least make reasonable efforts to establish paternity even if they do not have to fully comply with other state requirements.308 but this assumption does not go far enough. as established in stanley and subsequent cases, non-custodial parents have an equally important interest in raising their children that is parallel to that of custodial parents.309 if custodial and non-custodial parents generally have similar interest in their relationship with and upbringing of their 303 id. at 38,795. 304 adoptive couple, 133 s. ct. at 2574, 2579 (2013). see supra notes 225–45 and accompanying text for a full explanation of justice sotomayor’s dissent. 305 adoptive couple, 133 s. ct. at 2574, 2579. see supra notes 225– 45 and accompanying text for a full explanation of justice sotomayor’s dissent. 306 indian child welfare act proceedings, 81 fed. reg. at 38,795 (june 14, 2016); see also guidelines for state courts and agencies in indian child custody proceedings, 80 fed. reg. at 10,151 (feb. 25, 2015). 307 indian child welfare act proceedings, 81 fed. reg. at 38,796 (june 14, 2016) (citing stanley v. illinois, 405 u.s. 645 (1972)). 308 id. (citing bruce l v. w.e. 247 p.3d 966 (alaska 2011)). 309 see supra notes 269–81 and accompanying text. no. 4:191] is the indian child welfare act losing steam? 239 children, there should not be a difference between custodial and non-custodial native american parents under the icwa. however, adoptive couple essentially creates two different levels of protection for native american parents based on prior custody that does not account for their similar parental interests. the rule also clarifies when the icwa applies to custody proceedings. the most relevant portion of this section details which factors cannot be used to determine when the icwa should apply. these factors include: “participation of the parents or the indian child in tribal cultural, social, religious, or political activities, the relationship between the indian child and his or her parents, whether the parent ever had custody of the child, or the indian child’s blood quantum.”310 although the final rule does not expressly reject the use of the existing indian family exception, the comments suggest that the new language is meant to focus on the substance of the case rather than exceptions to the use of the icwa.311 the 2015 guidelines stated that the existing indian family exception should not limit the application of the icwa.312 the new rule goes further to spell out exactly what factors cannot be used to determine whether or not the icwa applies in cases that otherwise qualify.313 since the updated regulations took effect in december 2016, it is unclear what effect the updated rules will have. however, these regulations are an improvement from the bia guidelines issued in 2015. the new rule provides more clarity in defining relevant terms and narrows state court discretion in determining when to reject the application of the icwa with a limited number of factors courts can use. most importantly the new rule is binding on state courts. 310 indian child welfare act proceedings, 81 fed. reg. at 38,802 (june 14, 2016). 311 id. 312 guidelines for state courts and agencies in indian child custody proceedings, 80 fed. reg. at 10,152 (feb. 25, 2015). 313 indian child welfare act proceedings, 81 fed. reg. at 38,868 (june 14, 2016). 240 columbia journal of race and law [vol. 7:1 ultimately, the forthcoming rules go as far as possible under federal law within the confines of the language of the icwa and case law. however, the rule fails to provide greater protection for unwed fathers, especially with regards to establishing paternity, custody, and termination rights. implementing these important protections at the federal level requires a congressional amendment. the next section suggests an amendment to establish a federal standard of paternity in icwa and to clarify the termination process. alternatively, since the icwa is just a minimum standard, there is also suggestion to increase protections through state legislatures and courts. b. amending the indian child welfare act congress should amend § 1903 and § 1912 to include: 1) biological fathers to the same degree as biological mothers; and 2) to create a different standard of termination for noncustodial parents. although the new rule determines that continuous custody is not relevant, it does not create a federal standard for determining custody or terminating parental rights. thus, any amendment to the icwa should address the constitutionally protected rights of non-custodial parents to ensure that the act applies equally to all native american parents irrespective of previous custody. specifically, the act should be amended to include new sub-sections to § 1903, to further define when the icwa applies, and to § 1912, to extend the icwa to parents who did not have custody of their child prior to the proceedings but still have an interest in the proceedings. congress has not amended the icwa since the law was originally enacted in 1978, although there have been a few proposed amendments over the years. in 1987, senator daniel evans introduced amendments to the icwa that would have clarified the intent of the language and expanded the application of the act to adoption proceedings of no. 4:191] is the indian child welfare act losing steam? 241 illegitimate children given up shortly after birth.314 essentially, senator evans’s amendments were aimed at dismantling the existing indian family exception. since the exception grew out of a narrow reading of the icwa suggesting that the statute only applied to intact families, senator evans’s amendments would have expanded the application to include families that were never intact.315 the relevant amendments would have changed the definitions laid out in § 1903 as well as the language of § 1912. the 1987 amendments sought to change § 1903(1) to make clear that the icwa applied to all child custody proceedings irrespective of the child’s connection to the tribe, culture, or the parent who is a member of a tribe.316 the proposal also would have amended the language of § 1912(e)–(f) from “continued custody” to simply “custody of the child by the parent.”317 the proposal went to committee hearings, but was ultimately unsuccessful.318 the suggested 1987 amendments begin to address the flaws in the recent interpretations of the icwa and therefore should be reconsidered by congress today. the proposed § 1903 changes would move to expand the application of the icwa to all native american children. combined with the new department of interior rule which lists factors that are not to be considered, the icwa would have a much broader application. senator evans also proposed changes to § 1912(e)–(f). those changes would remove the “continued custody” language that the united states supreme court found 314 lehmann, supra note 67, at 513. 315 s. 1976, 100th cong., 1st sess., 133 cong. rec. 36,601, 36,602 (1987) (redefining “child custody proceeding” as a proceeding involving an indian child even if the child never lived with an indian parent). 316 lehmann, supra note 67, at 539; s. 1976, 100th cong., 1st sess., 133 cong. rec. 36,601, 36,602 (1987). 317 lehmann, supra note 67, at 540. 318 id. at 513; see also, in re a.j.s., 204 p.3d at 549. 242 columbia journal of race and law [vol. 7:1 persuasive in adoptive couple.319 this amendment may no longer be necessary in light of the new department of interior rule, which defines “continued custody” in a way to make clear that any prior custody is sufficient.320 however, an additional amendment to § 1912 is necessary in order to grant non-custodial parents the same protections under the act. a new subsection (f) should be created to directly address non-custodial parents and prevent courts from summarily terminating their rights if they have previously expressed an interest in the adopting proceedings. the relevant language should be similar to: “in order to involuntarily terminate the parental rights of a non-custodial parent, the court must first determine that the parent’s involvement in the child’s life or adoption placement would seriously harm the child. this section only applies to noncustodial parents that have demonstrated interest in the child or the relevant proceedings.” the purpose of this new section is to ensure that non-custodial parents do not lose their parental rights without a similar inquiry into their ability as parents as that of custodial parents under § 1912(d)–(f). in an era where interracial relationships are common, there is an increased likelihood that a child will have a nonnative american mother, but a native american father, such as baby veronica. while that father may not be part of the child and mother’s life before the birth or want to adopt the child himself, he may still want to ensure that his child remains connected to his tribe. ideally, this amendment will give more native american parents the authority to intervene in adoption placements. this will also force courts to examine the interests of the birth father and child in conjunction with the birth mother. if congress adopted the suggested amendments first proposed in 1987 along with the additional amendments to § 319 s. 1976, 100th cong., 1st sess., 133 cong. rec. 36,601, 36,604 (1987). 320 25 c.f.r. § 23.2. no. 4:191] is the indian child welfare act losing steam? 243 1903 and § 1912 that have been proposed here, the updated language should supersede the statutory interpretation laid out in adoptive couple. the forthcoming rule is a start towards strengthening the language of the icwa. however, the proposed amendments address the troubling outcome, referenced in justice sotomayor’s dissent, of a patchwork of federal and state laws concerning non-custodial fathers.321 the purpose of the amendments is to ensure that the icwa applies to the broadest number of parents and children. broadening the application of the icwa favors native americans in that it gives them greater authority over protecting the membership of their tribes, keeps children connected to their heritage, and will go a long way toward achieving the icwa’s ultimate goal. alternatively, allowing states to impose their own laws would increase the protections of the icwa, even without a federal standard. section 1902 makes clear that the icwa only sets minimum standards, thus implying that states may pass additional laws where necessary.322 many states have already taken such actions. for example, many states already took steps to prohibit the use of the existing indian family exception.323 in addition, several states have also adopted more lenient standards for biological fathers looking to establish paternity under the icwa.324 creating changes within each state may be a viable option if establishing a federal standard is not possible. v. conclusion the indian child welfare act plays an important role safeguarding native american families and tribes. congress passed the act in 1978 following extensive evidence that native american tribes were in danger of extinction due in 321 adoptive couple, 133 s. ct. at 2579. 322 25 u.s.c. § 1902 (2012). 323 see supra notes 151–72 and accompanying text. 324 indian child welfare act proceedings, 81 fed. reg. at 38,796 (june 14, 2016). 244 columbia journal of race and law [vol. 7:1 part to the large number of children being removed from their families and culture. the purpose of the icwa is to prioritize maintaining tribal bonds and grant tribes greater autonomy in child custody proceedings. despite this clear objective, some states have worked to limit the application of the icwa through case law. specifically, the existing indian family exception has been used since the early 1980s as a prerequisite to the icwa. though at one point fairly common, the application of the existing indian family exception began to decline in the 2000s. despite this shift away from the exception, the united states supreme court applied a similar logic in the adoptive couple v. baby girl decision. although the united states supreme court never explicitly uses or references the existing indian family exception case law, the analysis in adoptive couple closely follows that in baby boy l. and other cases. the majority opinion of adoptive couple draws upon the existing indian family exception, and also further limits the application of the icwa to only parents who had custody of the child at some point prior to the proceedings. this application not only denies many deserving native american parents from using the icwa, but also facilitates removing native american children from their cultural history. while the new bia binding rule makes progress towards expanding the application and protection of the icwa, additional amendments from congress are necessary to realize the goals of the icwa and to protect the rights of all parents. this note lays out potential amendments to the icwa or potential state action, both of which will broaden the application of the icwa. without such amendments or state action, an entire class of parents, non-custodial parents, will be cut out of the icwa scheme. limiting the availability of the icwa in this manner will decrease the act’s ability to achieve its underlying goals: to keep native children connected to their tribes and to protect tribal interests in future generations. in the absence of a revised icwa or potential state action, tribes will lose out on a whole group of children, a group unable to qualify for protection under the icwa because their noncustodial parent was unable to invoke the act. 2012 columbia journal of race and law 241 the immigrant plight/immigration law: a study in intractability robert a. ferguson  intractable problems, ones that defy solution because of conflicting lines of force, almost always require an outside catalyst for any movement toward an answer. this essay explores intractability through two parallel historical moments of conflict: debate over slavery in ante-bellum america and debate over aliens in current america. severe discrimination (based on difference, racial prejudice, communal identity formation, and larger psychological needs) deprives these disadvantaged groups of human rights and the protection of law. nineteenth-century slavery and twenty-first century illegal immigration also share another quality. both stimulate virulent forms of rhetorical excess that endanger the body politic and threaten the social fabric of an increasingly divided united states. the connection of law and literature offers a catalyst, an opportunity for a change in perspective through the power of fiction. as harriet beecher stowe‘s novel, uncle tom‘s cabin, forced recognitions of a common humanity against slavery, so henry roth‘s classic immigrant novel, call it sleep, indicates some of what is currently needed now. the synergy between legal and literary forms of address encourages a deeper realization, and that realization, in turn, raises a question about intractable problems in general. can the rule of law, when law itself is questioned, respond through its equal partner, the right to free expression? i. the intractability problem defined................................... 241 ii. the lines of force explained.................................................... 243 iii. the holds of prejudice and assumed superiority....... 244 iv. the failures of immigration law.......................................... 246 v. the role of imaginative literature in law.................... 253 vi. call it sleep: the immigrant’s plight rendered........... 255 vii. the search for answers................................................................ 261 i. the intractability problem defined some intractable difficulties remain unsolved even though fully realized. they remain unsolved not because they lack solutions, but because the conflicting lines of force against answers are mutually  george edward woodberry professor of law, literature, and criticism, columbia university. dina hoffer, alex lemann, and caitlin smith all contributed to this essay as excellent research assistants. my colleagues at columbia law school made valuable suggestions during a workshop on an earlier draft. the immigration plight/immigration law vol. 2:2 242 reinforcing. as these lines of force compete with each other, they nonetheless join in a mutual assessment: nothing will change. a solution, if it is to happen, must therefore come from outside of the problem as currently understood. either impending catastrophe or an alternative frame of reference must transform attitudes and stances taken. when it becomes necessary to compromise, everyone engaged in a relentless dispute naturally prefers the second option, an alternative frame of reference, but few combatants willingly recognize or fear the first option, catastrophe, until it is upon them, thus making the implementation of the second alternative twice as difficult. to come to a different understanding of an intractable problem, the people in conflict must see the need, and change more than the problem itself. those who absolutely disagree must identify the problem in a fresh way, and this typically means they must do so through information already available to them. severe problems do not solve themselves, but they commonly contain a submerged language of solution that another perspective can wield to advantage. against intractability, the claims in this essay are solution oriented. first, they propose that an alternative frame of reference can recover realities obscured by dispute. second, they show that the best re-framers of reference seem to be touchstones or catalysts that do not change themselves but shift the focus in conflicting points of view. finally, they show that alexis de tocqueville is only half right when he argues that disputes in america come down to a legal question.1 tocqueville sees the centrality of law in disputes, but he misses a vital homology between legal and more familiar modes of discourse, namely that the catalyst needed for a solution often comes from outside of legal discourse. law is a reactive mode; it is notoriously slow to change until pressure is put upon it. it follows that these first three claims lead to a fourth and larger one—the connections between law and literature (and other more popular forms of communication) can show us how intractable problems develop and even how they might be solved. the intractable issues of our times are not hard to find. they include gun violence, the drug epidemic, electoral imbalance, unwanted pregnancy, a collapsing infrastructure, economic recession, global warming, nuclear proliferation, war, terrorism, overcrowded prisons, serious pockets of poverty, urban blight, and the cost of medical care, among others. all of these issues draw public attention in mostly futile ways, but the most volatile and unreasoned debate of the moment involves immigration. controversies over aliens in america have grown extreme and increasingly ugly in contemporary exchange. what it means to be a foreign person on american soil begins to disappear when a member on the floor of congress can generate whole news cycles with the assertion that pregnant women have been flying in from the middle east carrying ―terror babies‖ in their wombs that will ―destroy our way of life.‖2 without communal reprimand, elected officials now say pregnant immigrants are multiplying rats, compare illegal aliens to the threat of hitler, and say border agents should ―shoot to kill.‖3 1 alexis de tocqueville, democracy in america (1840). 2 louis buller gohmert, jr., u.s. representative from texas, 1st congressional district, made this charge on the floor of congress on june 24, 2010, and repeated it on the anderson cooper 360 television show, on august 12, 2010. anderson cooper 360 (cnn television broadcast june 28, 2010); see also elise hu, tx rep. louie gohmert warns of terrorist babies, texas trib., june 28, 2010; hu, gohmert debates ―terror babies‖ on cnn, texas trib. aug. 13, 2010. ―terror babies,‖ denied as a problem by the fbi, derives from the similarly unrealistic concept of ―anchor babies,‖ which refers to the unsubstantiated assumption that illegal aliens are having their babies in the united states to obtain citizenship through them. 3 state representative john yates of georgia compares the threat from illegal immigration to the rise of hitler in world war ii and wants border agents to be free to ―shoot to kill.‖ state representative curry todd of tennessee calls pregnant illegal immigrants multiplying rats. see charles m. blow, silliness and sleight of hand, n.y. times, apr. 29, 2011, at a21. extreme views on the immigrant problem, all supporting the impossibility of ―sealing the border,‖ extend to the highest debates in the country as recent exchanges in presidential debates amply attest, and yet no contender for 2012 columbia journal of race and law 243 acrimony of this kind is dangerous far beyond its subject, one of many reasons for reducing the subject to analytical terms. parts ii, iii, and iv of this essay detail the objective cultural, political and legal lines of force that make immigration an intractable problem. part v explains why literature, in its most flexible form, the novel, can be a catalyst for changing points of view. part vi turns to the immigrant‘s plight through the lens of the most powerful immigrant novel in american literature, henry roth‘s classic call it sleep. published in the dark year of 1934, call it sleep records the life of a bewildered jewish boy from his arrival in the united states at the age of two until he is just eight years old on the lower east side of new york city. part vii, with the full plight of the immigrant in place, explores the dynamic required for a fresh perspective. it looks to the synergy between legal and literary forms of address where intractability sometimes yields to deeper realization. it asks a crucial question: can the rule of law, if law itself is questioned, respond to its equal partner, the right of free expression? ii. the lines of force explained one can understand the anger in fights over immigration only by grasping the ideological contradictions at the core of the subject. etched on the pedestal of the statue of liberty are official words from 1886 that greet new arrivals in the harbor of new york city. they read as follows: . . . ―give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. send these, the homeless, tempest-tost to me, i lift my lamp beside the golden door!‖4 these words, placed figuratively in the mouth of the statue as ―the mother of exiles,‖ come from a solicited sonnet by the poet emma lazarus, and they offer an unqualified welcome to all who come without exception. indeed, the more desperate the recipient of these words, the more urgently they claim to apply.5 but does the assumed right to welcome also imply an alternative power to exclude, and if so, who gets to exclude and why? subliminal processes are at work here. in a nation driven by the concept of property, no one questions the right of an owner to keep others off of privately held land. nor, for that matter, does anyone deny the right of a government to bar those who threaten its understanding of itself. but how do these ideas extend into the common understanding of citizens who ―own‖ a country in a way that a new arrival does not? in normative if not legal terms, what is it about a conception of country that gives ordinary citizens the right to restrict conditions for an alien on common ground? put another way, what has happened to emma lazarus‘s words on the statue of liberty? a politics of exclusion has denied the spirit of welcome to millions currently in the land, and it has created a helpless population out of many recent arrivals. there is now a huge underclass that cannot, in the words of ―the mother of exiles,‖ ―breathe free‖ anywhere in the united states. talk of a ―golden door‖ is shut to anyone in this category. legal regulation has produced its own domestic category of ―wretched refuse,‖ and the people in it are treated in ways that would be thought unjust for anyone else in america. ―illegal the highest office is in favor of comprehensive reform. see borderline ridiculous: the republican presidential candidates get immigration wrong, n.y. times, sept. 17, 2011, at a20. 4 emma lazarus, the new colossus, lines 24–36. 5 the statute of liberty, a joint effort of france and the united states, dedicated on october 28, 1886, became a project in nationalist identity during the centennial celebration of 1876 in commemoration of the franco-american alliance during the american war of independence. emma lazarus‘s sonnet, written in 1883, was written for the statue still under construction at the time. ironically, the mother of exiles ceases to fulfill that title in the very year, 1924, that she officially becomes a national monument in liberty park under the auspices of the war department. in that same year congress passed the first laws restricting immigration to the united states. see oscar handlin, statue of liberty 61–65 (1971). the immigration plight/immigration law vol. 2:2 244 alien‖ describes twelve million souls in limbo in the united states.6 the very term is a crafted double negative and a pejorative slogan in contemporary political discourse. both its parameters and the nature of the situation identify immigration as an intractable problem. first, you cannot forcibly remove twelve million illegal aliens now living regularly and peaceably on american soil without rending the ethos and republican fabric of the united states. second, and in contradiction, a largely white, and now threatened, majority of americans wishes that people arriving from new ethnicities would go away. third, racial prejudice, as part of ―a superiority complex‖ in human thought, shapes many opinions on this subject.7 fourth, hard economic times increase prejudice and vocational anxiety and threaten the assumed superiority of longer-term inhabitants even though recent arrivals fill low-end jobs that no one else wants. fifth, immigration law has devolved into an acknowledged failure. no one trusts a system filled with contradictions and hypocrisies for all sides in dispute to see. iii. the holds of prejudice and assumed superiority prejudice based on human difference takes virulent forms in american culture. it is embedded in national understandings from the founding moment. the federal constitution of 1789 dignifies prejudice based on human difference through the institution of slavery. it assumes some people are intrinsically unworthy through ethnic distinction, an assumption that applies again to foreign-born arrivals during the waves of immigration of different peoples in the nineteenth and twentieth centuries.8 race and ethnicity are woven into the very fabric of this nation. every required decennial federal census from the first in 1790 honors racially or ethnically classified distinctions as keys to american identity.9 the point to be recognized here is the tenacity of prejudice assigned to human difference. the end of slavery in 1865 did not reduce prejudice against those freed from bondage; if anything, it seems to have exacerbated biases by threatening white hegemony. ―it is tempting,‖ writes daniel aaron in the unwritten war, ―to read into the intersectional war a redirected or displaced aggression against blacks— 6 estimates of illegal aliens are necessarily imprecise and fluctuate according to economic conditions and other variables. perhaps the most accurate figures come from the pew hispanic center, putting the figure at 11.9 million in 2008. see jeffrey passel & d‘vera cohn, pew research ctr., a portrait of unauthorized immigrants in the united states 1–2 (2009). other estimates vary between seven to twenty million illegal aliens in this country. 7 the most articulate and extensive philosophical rendition of the superiority complex, also a celebration of it, can be found in the writings of friedrich nietzsche, all of which tie a will to power and the right to conquer the weak to forms of anti-semitism. nietzsche blames the jewish mentality for the downward turn in western history. for examples of the superiority complex and the prejudices behind it, see friedrich nietzche, thus spoke zarathustra 62–63, 202–20, (thomas common trans., 1917) (1885); friedrich nietzche, beyond good and evil §§ 48, 62, 195, 210– 12, 258, 265, 293 (marianne cowen trans., 1955) (1885); friedrich nietzche, on the genealogy of morals and ecco homo §§ 1.7, 1.9, 1.13, 2.6 (walter kaufmann trans., 1967) (1887); friedrich nietzche, twilight of the idols 102–03 (r j. hollindale trans., 1968) (1888); friedrich nietzche , the anti-christ §§ 2, 3 (r j. hollindale trans., 1968) (1888). for a good analysis of the implications of prejudice and cruelty in nietzsche‘s philosophy, see jonathan glover, humanity: a moral history of the twentieth century 11–17 (1999). 8 u.s. const. art. 1, § 2, distinguishes between ―free persons‖ and ―three-fifths of all other persons‖ for purposes of representation. article one, section nine allows the importation of slaves. article four, section two creates a fugitive slave law that treats a whole category of human beings as lost property. for a detailed account of the inequalities fostered by the constitution, see robert a. dahl, how democratic is the american constitution? 7–39 (2002). 9 for a recent in depth discussion of race on which this paragraph depends, see kenneth prewitt, racial classification in america: where do we go from here?, 134 daedalus 5 (2005); david hollinger, the one drop rule & the one hate rule, 134 daedalus 18 (2005); louis h. pollak, race, law & history: the supreme court from dred scott to grutter v. bollinger, 134 daedalus 29 (2005). race and ethnicity belong to the same continuum of perceived difference with prejudice reaching across the categories at admittedly different levels of intensity. 2012 columbia journal of race and law 245 outcasts before, during, and after the war.‖10 those figuratively ―outcast‖ could be rejected because they belong to ―an alien black race.‖11 discrimination in a country dedicated to equality depends on stark use of such words. to be ―outcast‖ and ―alien‖ justifies otherwise unacceptable levels of negative treatment. if you are in either category, you do not belong and are without full rights or legal protection.12 the term ―outcast‖ pushes away. the term ―alien‖ excludes. taken together, the two clarify the boundaries of an established society. they circumscribe the familiar order, protect the status quo, and encourage nationalistic expression based on omission. sociologists argue that discrimination answers fear of outsiders by fostering ―group identification.‖13 when social standing is questioned, ―discriminatory behavior is perceived to be instrumental‖ in status formation.14 in more anthropological terms, groups stabilize themselves through ―rules of pollution‖ that keep others out. the definition of what one is not (and does not want to be) gives form to identity and worth by marking the unworthy.15 history, sociology, and anthropology all point toward an innate impulse in human nature. the so-called ―inferiority complex‖ has been a concept in behavioral disorders and in popular culture from the moment the psychotherapist alfred adler coined the phrase in 1937, but its wide acceptance beyond professional ranks depends on an implicit polar opposite: ―the superiority complex.‖16 identity formation differentiates itself by finding a category outside and preferably inferior to it. everyone, it seems, needs someone or something to look down upon, whether through race, status, ability, class, ancestry, association, ownership, vocation, education, fortune, or family connection.17 pejorative use of these categories influences attitudes toward new arrivals and allows prejudice to become a barometer on immigration issues. debate is then colored by a questionable but deeply held conviction: ―the pervasive tendency to regard people of different races as essentially different kinds of people,‖ a conviction that rarely distinguishes between designations based on physical perception and geographical origin.18 the ensuing confusion over racial definition renders debate sharp and misdirected. 10 daniel aaron, the unwritten war: american writers in the civil war 333 (1973). 11 see lewis p. simpson, the civil war and the failure of literary mind in america, in the brazen face of history: studies in the literary consciousness in america 109–10 (1997). 12 for the logic of how racial deprivation works in practice, see derrick a. bell, jr., the racial imperative in american law, in the age of segregation: race relations in the south 1890–1945 3, 3–28 (robert haws ed., 1978). 13 see generally herbert blumer, race prejudice as a sense of group position, 1 pac. soc. rev. 3 (1958); ryan d. king & darren wheelock, group threat and social control: race, perceptions of minorities, and the desire to punish, 85 soc. forces 1255 (2007). 14 the quotations are taken from the leading proponent of group threat theory. see hubert m. blalock, jr., theoretical propositions, toward a theory of minority-group relations 204 (1967). 15 ian hacking, why race still matters, 134 daedalus 102, 114 (2005). 16 see generally alfred adler, psychiatric aspects regarding individual and social disorganization, 42 am. j. sociology 773 (1937). for an account of ―the superiority complex‖ on which this paragraph depends, see robert a. ferguson , historical contingency and the spirit of law, in sesquicentennial essays of the faculty of columbia law school 70 (2008), available at http://cms1.runtime.com/null/download?&exclusive=filemgr.download&file_id=18371. 17 to see the superiority complex at work in popular american culture today, one need only attend an athletic contest. more often than not, the athletes who win and their supporters will raise their forefingers in the air and chant ―we are number one!‖ the practice is as pervasive as it is puerile and superficial, but it wouldn‘t happen with such regularity if it didn‘t bespeak a subliminal primal need about identity. 18 hacking, supra note 15, at 114. for a geographical emphasis on racial distinction, see cornel west, a genealogy of modern racism, in prophesy deliverance! an afro-american revolutionary christianity 47, 47– 65 (1982). for a cognitive approach to racial distinction, see generally lawrence hirschfeld, race in the making: cognition, culture, and the child‘s conception of human kinds (1996). the immigration plight/immigration law vol. 2:2 246 contending voices grow especially shrill through yet another level of confusion that is not always recognized. an unresolved ideological concern divides debaters on immigration. americans can never make up their minds whether homogeneity or difference is the main source of strength in the nation, and it is a disagreement too sensitive for leading political figures to address in a serious way. the overall effects of these ingrained but confused attitudes on racial assumptions have enormous rhetorical significance. as overt expressions of racism become a taboo mode of articulation in public life, communal anger, fear, and uncertainty over human difference must find another terminology to express the same concerns. the result has been a quantum shift in contemporary political discourse. the new term of choice, one that serves conflicting purposes, is the word alien. to be alien today signifies more than simply not belonging; the term now means something unpleasant enough to convey racial expression without more being said. never has this been as clear as it is today in the debates over immigration. iv. the failures of immigration law the failures of immigration law are often cited but its split nature is obscured by political rhetoric. new immigrants who arrive in a nation of previous immigrants suffer from the ironic plight of ―half identity‖ in communal understandings. the average new immigrant enters the country as a lowwage laborer in jobs that few citizens or longer-term residents want and look down upon. at the same time, the life of that worker beyond the workplace and the life of that worker‘s family are treated as side issues to be ignored when they are not dismissed, scorned, or ordered to assimilate as soon as possible. the emphasis on available labor also means money drives the legal wheel. immigration law caters slavishly to economic trends. prosperity leads to legal encouragement of immigration, while downturns, when jobs become scarce, demand legal discouragement with many immigrants caught in the transitions. indeed, the institutional history of immigration law tells an even more ominous story. congress created the bureau of immigration in 1891 and placed it under the department of commerce and labor with encouragement of economic growth in mind.19 the bureau was then moved more narrowly to the department of labor in 1913 with its more restricted focus on a cheap work force. in 1940, under the threat of war, the bureau, then the immigration and naturalization service, moved into the department of justice where legality and restriction became its primary focus.20 the story gets worse during the extended recession and wars of today. alien workers continue to be needed but mostly for interim work, and to find that work they must qualify under hostile scrutiny. reconceived yet again in the wake of the terrorist attack on the united states of september 11, 2001, the immigration and naturalization service has been dissolved into three separate units and placed within a conglomerate known as the department of homeland security.21 institutionally, immigration law now ratifies its split personality—welcoming but rejecting—with a new emphasis. surveillance against alien forces, the primary mission of homeland security, has become the raison d‘être of immigration law. 19 mae m. ngai, impossible subjects: illegal aliens and the making of modern america xx (2004). 20 id. 21 originally called the office of homeland security, the department was created by president george w. bush on september 20, 2011, to ―coordinate a comprehensive national strategy to safeguard our country against terrorism.‖ a nation challenged on terrorism, n.y. times, sept. 21, 2001, available at http://www.nytimes.com/2001/09/21/us/nation-challenged-president-bush-s-address-terrorism-before-jointmeeting.html. the former immigration and naturalization service was reorganized within the department of homeland security in early 2003. see philip shenon, threats and responses: the borders; u.s. arrivals face radiation check, n.y. times, feb. 28, 2003, www.nytimes.com/2003/03/01/us/threats-and-responses-the-borders-us-arrivals-face-radiationcheck.html. 2012 columbia journal of race and law 247 here is how the system now works. in what one commentator has called ―the aesopian language of the immigration statutes crafted by legislators and bureaucrats,‖ immigration has been ―trisected into separate entities‖ that work against each other. we have, first, the bureau of customs and border protection (cbp), which is to keep people out; second, the bureau of immigration and customs enforcement (ice), which is to restrict entry to the country to legal immigrants; and third, the bureau of united states citizenship and immigration services (uscis), which controls the transformation from registered legal alien to citizen while making it impossible for an illegal alien to gain that status. an explicit policy orientation exists in these lines of authority. cbp, ice, and uscis all report to the department of homeland security‘s undersecretary for border and transportation services.22 the very term ―illegal alien‖ represents a double negative within this legal construct. original communal understandings of the word ―alien‖ include ―‗a person hostile to this country,‘ ‗a native of an unfriendly country,‘ ‗an enemy from a foreign land . . . .‘‖23 each negative possibility leaps to mind when the adjective ―illegal‖ is added to the concept. in law, ―an alien is a person who is not a citizen.‖24 an accepted immigrant is ―an alien who comes for permanent settlement—a ‗legal permanent resident‘.‖25 an unaccepted, or ―illegal‖ immigrant, on the other hand, is an alien who is ―unlawfully present . . . or who otherwise commits a deportable offense.‖ 26 the word that qualifies the term ―unlawful‖ in these understandings is the adverb ―otherwise.‖ the distinction between mere presence and an overt act in conferring illegality disappears because of this adverb, especially when the connotations refer back to ―hostile,‖ ―unfriendly,‖ ―enemy,‖ or ―foreign‖ as definitions of ―alien.‖ all illegal aliens thereby become criminals at large, a danger to ordinary citizens, and a menace to be answered by governmental action. lost in the linguistic shuffle are millions of harmless individuals who live in america trapped by legal restrictions that defy solution or even amelioration. communal hysteria over aliens has popular sources as well. concepts take on a life of their own in the saturation coverage of an image culture.27 and so it has been with the word ―alien.‖ since 1979, blockbuster science fiction movies have featured the concept in titles and have tied the idea to vicious extraterrestrial and subterranean creatures, beings that destroy whole communities for no reason other than their innately foreign and malicious natures. these imaginary villains are the worst possible ―illegal aliens.‖ they move across the screen as serial murdering psychopaths who must be eliminated, and they get purged in movie after movie but always with a hidden residue left over for the next sequel.28 22 roger daniels, guarding the golden door: american immigration policy and immigrants since 1882 261, 263–64 (2004). 23 ngai, america, supra note 19, at xix. 24 id. 25 id. 26 id. 27 see daniel j. boorstin, image: a guide to pseudo-events in america 181–238 (1978). boorstin argues that an image culture can be ―summed up as the shift in common experience from an emphasis on ‗truth‘ to an emphasis on ‗credibility.‘ all of us . . . are daily less interested in whether something is a fact than in whether it is convenient that it should be believed.‖ id. at 212. it follows that ―public opinion—once the public‘s expression— becomes more and more an image into which the public fits its expression.‖ id. at 238. 28 for popular movies within the alien series that also connect with the equally negative idea of ―predator,‖ another form of alien, see generally alien (20th century fox 1979); aliens (20th century fox 1986); alien 3 (20th century fox 1993); alien resurrection (20th century fox 1997); predator (20th century fox 1987); predator 2 (20th century fox 1990), avp: alien v.s. predator (20th century fox 2004), avpr: aliens vs. predator the immigration plight/immigration law vol. 2:2 248 as such, alien movies thrive on racial claims that comport with the history of discrimination in immigration law.29 both settings find and reject what is too different to accept. it is now generally forbidden to use racial slurs in public discourse, but parallel terms appear with obsessive frequency in alien movies and in many public objections to illegal aliens. in hollywood marketing, a horrendous alternative life-form remains somewhere in american society to be rooted out. because this being from another world often can assume human form, it holds audiences in a special way; viewers are encouraged to hate ―the temporary human‖ in racial terms unacceptable when used against a real world entity. the attraction in alien movies comes in this manipulative use of an intersecting vocabulary, which also informs rhetoric in the anti-immigration movements that have become powerful in american politics.30 as racism in public discourse becomes costly to its user, condemnations of aliens supply a coded substitute. cinematic aliens absorb attention by inhabiting negative american feelings for everything alien and different. reality then lends a hand by imitating fantasy on immigrant issues. in recent years, armed quasimilitary units along the mexican border have risen from 2,000 to over 11,000 operatives using high-tech devices. border patrols close to mexico deploy unmanned aerial vehicles named ―predator bs‖ to find illegal immigrants crossing the border.31 everything about these teams and their weapons implies communal danger. it is quite deliberate that the term ―illegal alien‖ is central to national politics of fear and racial prejudice—so much so that it dominates public discourse even in locales where immigration is not a major presence.32 governor dave heineman of nebraska has made illegal immigration ―the defining issue‖ of his successful election campaigns and legislative agendas even though his state has no border problem, a low unemployment rate, and no population density issue.33 in pennsylvania, legislators warn against the ―illegal alien invader.‖34 frequent resort to a language of ―invasion‖ is especially significant here; it implies a country in the process of losing its identity. conservative national commentators like pat buchanan and lou dobbs describe the nation as ―mexamerica‖ on the way to becoming a ―third world country.‖35 excessive rhetoric is the norm on immigration. politicians in border states gain political capital by floating wild exaggerations on the subject. john mccain, seeking re-election to the senate from arizona in 2010, argued that illegal immigrants were ―intentionally causing accidents on the freeway.‖ if requiem (20th century fox 2007); predators (20th century fox 2010). these movies have spawned books, video games, spin-offs, and toys—all tied to the pejorative meaning of ―alien.‖ 29 for the history of racism and the story of quotas in american immigration law, see ngai, supra note 19, at 21–55; see generally mae m. ngai, the architecture of race in american immigration law: a reexamination of the immigration act of 1924, 86 j. am. hist. 67 (1999). 30 for the sometimes veiled but racist appeals in anti-immigration organizations, see jason de parle, antiimmigration crusader, n.y. times, apr. 17, 2011, at a1. 31 ross douthat & jenny woodson, the border, atlantic monthly, jan. 2006, at 54–55. 32 for a full analysis of ―the psychology behind america‘s immigration fear‖ and its powerful influence on american politics, see john b. judis, phantom menace, new republic, feb. 13, 2008, at 21–23. the acknowledged founder of modern anti-immigration movements, dr. john tanton, comes from an area in northern michigan that is ninety-four percent white, but that homogeneity has not stopped him from fearing a ―latin onslaught‖ that must be checked. see de parle, supra note 30. 33 a.g. sulzberger, growing anti-immigrant sentiments in an unlikely state, n.y. times, oct. 3, 2010, at a16. 34 julia preston, political battle on immigration shifts to states, n.y. times, jan. 1, 2011, at a1. 35 judis, supra note 32, at 21–23. 2012 columbia journal of race and law 249 one were to dwell on that possibility for just a moment, the natural question to be asked is: why would fugitives who must hide engage in such activities? in the same campaign year, the governor of the state, jan brewer, described ―beheadings‖ and ―kidnappings‖ by illegal immigrants without a shred of evidence in support. when exposed, these fabrications did not keep senator mccain or governor brewer from winning their elections on rhetoric against illegal immigration.36 demagoguery of this sort gains legitimacy through the failures and lapses of immigration law. enforcement has not stopped an estimated 850,000 illegal immigrants from entering the country every year.37 in the identification of a problem of such threatening scope, the ambiguous meaning of ―unlawful‖ when attached to ―alien‖—mere presence versus the need for an overt criminal act—allows the pejorative term ―illegal alien‖ to trump the official and more neutral designation, ―undocumented immigrant.‖ this represents a shift in terminology in keeping with failure to grant immigrants legal protections available to others in america.38 the rule of law itself is stacked against immigrants. constitutional precedent keeps them from using most legal protections and prevents them from gaining standing in federal court. since 1889, the supreme court‘s ―plenary power doctrine‖ has left all policy and regulation to the political branches of government (congress and the president) without the prospect of judicial oversight.39 with the judiciary tying its own hands, immigration debates are highly political and especially hyperbolic during election cycles.40 complicating these negatives are several others. immigration law forbids an illegal alien from seeking legal status, much less citizenship.41 roughly twelve million illegal immigrants, many of whom know only the united states as their home, live without access to the opportunities that the country offers to citizens and legal immigrants, and even more draconian restrictions are on the way. frustrated by the failures of federal law, a number of states are seeking to place limits on undocumented immigrants by denying citizenship to children born of anyone in this category (so-called ―anchor babies‖), by denying driving licenses, by denying access to educational institutions, by denying health benefits, by 36 gail collins, the great undebate, n.y. times, sept. 4, 2010, at a19. see also interview with jan brewer, fox news (fox television broadcast june 16, 2010), as excerpted in rachel slajda, brewer falsely claimed immigrants beheaded people in arizona, talking points memo (july 1, 2010, 6:43 pm), http://tpmmuckraker.talkingpointsmemo.com/2010/07/brewer_claims_illegals_are_beheading_people_in_the.php. (―we cannot afford all this illegal immigration and everything that comes with it, everything from the crime and to the drugs and the kidnappings and the extortion and the beheadings . . . .‖). 37 peter skerry & devin fernandes, citizen pain, new republic, may 8, 2006, at 14. the authors quote the figure of illegal aliens entering the country every year from the pew hispanic center. for other examples of excessive political rhetoric based on the failure of immigration law, see julia preston, political battle on immigration shifts to the states, n.y. times, jan. 1, 2011, at a1. 38 for a good account of the problems in defining ―illegal alien,‖ see gerald l. neuman, aliens as outlaws: government services, proposition 187, and the structure of equal protection doctrine, 42 ucla l. rev. 1425, 1440–45 (1995); see also 8 u.s.c. § 1101; 8 u.s.c. § 1365(b); 29 c.f.r. § 500.20(n). 39 the plenary power doctrine is first articulated in chae chan ping v. united states (chinese exclusion case), 130 u.s. 581 (1889). for the history of these restrictions, see hiroshi motomura, immigration law after a century of plenary power: phantom constitutional norms and statutory interpretation, 100 yale l.j. 545 (1990). for restriction on the nature of court review, see gabriel j. chin, is there a plenary power doctrine? a tentative apology and prediction for our strange but unexceptional constitutional immigration law, 14 geo. immigr. l.j. 257 (2000). 40 for an account of irresponsible rhetoric regarding illegal immigrants during the presidential primaries of 2011, see editorial, borderline ridiculous: the republican presidential candidates get immigration wrong, n.y. times, sept. 17, 2011, at a20. 41 see 8 u.s.c. § 1429; 8 u.s.c. § 1227. the immigration plight/immigration law vol. 2:2 250 denying any kind of work, by confiscating vehicles, by denying the right of contract, and by conducting police checks on anyone under ―reasonable suspicion.‖42 the proposals demonstrate a purposeful insensitivity to basic human needs. by pushing illegal aliens more deeply into ―outlaw‖ status, the states urge them to ―self-deport.‖43 the strategies are overt, but beyond the momentary political leverage they give proposers, the new restrictions are as misguided as they are heartless. when alabama in 2011 decided to pass harsh immigration laws that would make the state ―hostile territory‖ for illegal immigrants by demanding proof of citizenship or legal residency for such elemental needs as garbage pickup, school attendance, dog licenses, visits to the health department, contract reliability, and employment, many farm workers and people with children immediately went to other states, ―leaving rotting crops in fields and critical shortages of labor‖ in their wake.44 from those who stayed came calls from ―pregnant women afraid to go to the hospital, crime victims afraid to go to the police, and parents afraid to send their children to school.‖45 even state lawmakers and executive officers soon had to admit that their actions had ―unintended consequences,‖ and a number of them urged that ―they throw out whole sections of the law.‖46 even for those who ―self-deport‖ there is still no answer. leaving the state for another does not address the problem for receiving states, and most long-time illegal aliens have no other country to go to. ―they are americans in everything but a piece of paper,‖ as one member of congress recently urged in seeking amnesty for illegal immigrants raised in this country.47 the new levels of legal restriction only compound an already difficult situation. whatever people say or try to argue, it is impossible to remove twelve million people from the country and equally impossible to prevent undocumented immigrants from arriving. the land borders in the lower forty-eight states are too extensive to guard effectively. those borders cover 5,525 miles, and it is hardly surprising that enforcement along southern borders at a cost of $2 billion a year has not measurably slowed the flow of illegal entry.48 current immigration policies accomplish just one thing: they increase the desperation of the officially unwanted. federal and state authorities will collaborate on a new program called ―secure communities,‖ which is a computerized fingerprint database of all entering legal immigrants. this program ―will soon turn every local police department in the country into an arm of immigration and customs enforcement,‖49 an institution known by the winning acronym of ice. unprecedented surveillance by ice has, in fact, caught illegal immigrants at even higher rates, often through casual 42 preston, supra note 34; marc lacey, on immigration, birthright fight in u.s. is looming, n.y. times, jan. 5, 2011, at a1. 43 for a discussion of incentives for ―self-deportation,‖ see neuman, supra note 38, at 1445; kim severson, southern lawmakers focus on illegal immigrants, n.y. times, mar. 26, 2011, at a13 (in supporting such a bill, south carolina state senator lawrence k. grooms declares ―the bill is intended to make south carolina a very hostile place for those who are in this country illegally. our hope is that they leave the country or go to a state where they are more welcome.‖). for a call for a more cooperative rather than an adversarial relation between state and federal regulation on immigration, see cristina m. rodriguez, the significance of the local in immigration regulation, 106 mich. l. rev. 567 (2008). 44 campbell robertson, after ruling, hispanics flee an alabama town, n.y. times, oct. 3, 2011, at a1. 45 editorial, alabama‘s shame: a harsh immigration law spreads fear and punishes the vulnerable, n.y. times, oct. 4, 2011, at a28. 46 campbell robertson, in alabama, calls for revamping immigration law, n.y. times, nov. 17, 2011, at a15; editorial, alabama‘s second thoughts, n.y. times, dec. 18, 2011, at sr10. 47 representative luis v. gutierrez, u.s. representative in congress from illinois, quoted in julia preston, house backs legal status for many young immigrants, n.y. times, dec. 9, 2010, at a38. 48 see daniels, supra note 22, at 226–27 (2004); ngai, supra note 19, at 265–66. 49 editorial, requiem for a dream, n.y. times, dec. 24, 2010, at a22. 2012 columbia journal of race and law 251 encounters having nothing to do with their status or behavior. in 2010, there were 390,000 deportations of illegal immigrants, a record number but still no match for the much larger numbers gaining illegal entry into the united states every year.50 it is also true that deportation rates do not reach minimal levels of legal fairness. those without lawyers have no chance, and for those who do, immigration judges ―offer a scathing assessment of much of the lawyering they have witnessed in their courtrooms.‖51 to personalize the impact of restrictive policies on undocumented immigrants, consider the plight of one after a minor fender bender in gwinnett county, georgia, in march of 2010. although the accident was the other driver‘s fault, the blameless immigrant was incarcerated for twelve days for not having a driver‘s license that the state refused to issue her, and she had deportation proceedings started against her even though she had lived in the state as a model worker and assistant manager in a restaurant for seventeen years while raising two children who were american citizens. ―if they‘re here illegally in the united states,‖ insists the sheriff of gwinnett county, ―they should be deported regardless of the charge.‖ the search in gwinnett county includes sunday check points near churches with hispanic worshippers. 52 illegal aliens are not categorically criminals in a meaningful sense, but people who are barred from meaningful employment, who are kept from educational institutions, who fear surveillance at every moment, who face imprisonment and deportation if recognized, and who can never call on the law for protection must find ways to circumvent the rules of ordinary residents. when boxed in, human beings resist imposed restrictions.53 the stringency of current policies leads to a self-fulfilling prophecy. it results in a hidden permanent underclass of illegal aliens who will use illegal means to survive. even worse, illegal aliens become a magnet for other crimes through their vulnerability to blackmail, fraud, and unchecked intimidation. current immigration law thus creates what it wants to correct: crime. the pathos of this situation lies in the mounting numbers and the overall contradiction that no one wants to face. unyielding negatives have created an intransigent problem of growing dimensions, and the hope for reform seems to exist only in the poignancy of individual cases that become newsworthy. notably, one can ignore the enforced contradictions that many in an abstract category face, but it is harder to overlook the plight of an honest person in front of you who deserves assistance. given a personal context, the problem becomes more apparent and encourages a solution.54 for confirmation of these rhetorical tendencies, one need only look to congressional debates in december of 2010 over the dream act, which would have given legal status and a chance for citizenship to illegal immigrants brought to the country at a young age. the act offering amnesty 50 julia preston, immigration vote leaves obama‘s policy in disarray, n.y. times, dec. 19, 2010, at a35. 51 kirk semple, in a study, judges express a bleak view of lawyers representing immigrants, n.y. times, dec. 19, 2011, at a24; editorial, for want of a good lawyer: deportation without representation, n.y. times, dec. 25, 2011, at sr14. 52 julia preston & robert gebeloff, some unlicensed drivers risk more than a fine, n.y. times, dec. 10, 2010, at a1. 53 the seminal theoretical work on the reflexive capacities of people to circumvent or break existing rules and laws when hampered is michael de certeau, the practice of everyday life (steven rendall trans., 1984). 54 see, e.g., julia preston, deportation halted for some students as lawmakers seek new policy, n.y. times, april 27, 2011, http://www.nytimes.com/2011/04/27/us/politics/27immigration.html. olga zanella, a mexican-born college student in texas, now twenty years old and brought to the united states when she was five, has been fighting deportation for two years after being pulled over by local police in february of 2009 for driving without a license and given over to immigration authorities. local officers for immigration and customs enforcement (ice) have recently told her that she can remain in this country under the agency‘s supervision if she stays in school and out of trouble. this decision and others like it recognize that the federal government‘s ―deportations policy remains confused and erratically implemented.‖ id. the immigration plight/immigration law vol. 2:2 252 received majority votes in both houses, but was stopped in the senate by failing to reach the supermajority necessary to overcome a filibuster on the issue. not coincidentally, those against the dream act spoke in generalities about the will of the american people while supporters detailed the plight of individuals caught in the problem.55 is there hope in a personal focus on illegal immigration? experts in legal inquiry agree that those with strong feelings on enforcement in the abstract often change their minds when faced with an intimate context or when they have more knowledge of a case.56 can the personal extend to the general? when can an individual‘s plight begin to solve a strategic social problem? case law sometimes works in exactly this way when an individual controversy leads to a major change in law, but here, the plenary power doctrine blocks salient immigrant issues from reaching the courts, leaving these decisions solely to the political branches of the government. if the personal in the immigration tangle is to succeed, it must find a forum beyond legal cognizance with comparable influence. in one hopeful sign, individuals at risk have begun to emerge from their legal twilight. poster illegal aliens, young people who have succeeded in america, are becoming newsworthy. the stories vary but contain the same message. isabel castillo, now twenty-six years old, graduated from high school and from college magna cum laude but finds herself trapped in menial jobs as an illegal alien. she has turned to radio, town-hall meetings, and legislative hearings to challenge the law and ―hopes that if people get to see her close up, she will win them over.‖57 maricela aguilar, nineteen and here from the age of three, attends marquette university on a full scholarship. describing her ―coming out,‖ she reveals, ―i think losing the shame [of who you are] overshadows the fear. i‘d much rather clarify to the public that being undocumented is just a circumstance i find myself in.‖58 the appeal of courageous individuals like isabel castillo and maricela aguilar is direct. they fight for the right to succeed on the terms that american aspirations hold dear through effort, enterprise, education, public assertion, and achievement. neither of these ―undocumented immigrants‖ deserves to be classified as a criminal, and both argue for all who have been left in limbo despite achievement and skills that should lead to a secure life. in ms. aguilar‘s words, ―one day we‘re going to pass this, don‘t even worry about it.‖59 why is courage the best term to apply to their stands? both women live safely only as newsworthy figures. they know that media coverage gives ephemeral protection at best. 55 see development, relief, and education for alien minors acts of 2010, 156 cong. rec. h8222–41 (daily ed. dec. 8, 2010); dream act, 156 cong. rec. s8548-s8549 (daily ed. dec. 6, 2010), 156 cong. rec. s8660-s8661 (daily ed. dec. 9, 2010); and 156 cong. rec. s10498-s10504 (daily ed. dec. 17, 2010). 56 the best example of this phenomenon can be found in people who advocate for the death penalty but refuse to support it if asked to do so in a particular case, or if they know anything about a defendant. ―sometimes even the staunchest advocates for the death penalty from a philosophical standpoint, when you ask if they could put pen to paper and sign a verdict for death, they say they couldn‘t do it,‖ reports frederick benton, defense attorney in death penalty cases in ohio. john futty, death penalty cases in franklin county becoming rarer, the columbus dispatch, nov. 3, 2008, http://www.dispatch.com/content/stories/local/2008/11/03/cameron.art_art_11-03-08_a1_rmbpce5.html. for pragmatic support of the phenomenon, see gary goodpaster, the trial for life: effective assistance of counsel in death penalty cases, 58 n.y.u. l. rev., 299 (1983), and michelle e. barnett et al., when mitigation evidence makes a difference: effects of psychological mitigating evidence on sentencing decisions in capital trials, 22 behav. sci. & l. 751, 751–70 (2004). for an argument that more knowledge of the death penalty leads to objection to it, the so-called ―marshall hypothesis,‖ see carol s. steikert, the marshall hypothesis revisited, 52 how. l.j. 525, 525–55 (2009). 57 michael winerip, dream act advocate turns failure into hope, n.y. times, feb. 20, 2011, http://www.nytimes.com/2011/02/21/education/21winerip.html. 58 julia preston, after a false dawn, anxiety for illegal immigrant students, n.y. times (feb. 8, 2011), http://www.nytimes.com/2011/02/09/us/09immigration.html. 59 id. 2012 columbia journal of race and law 253 a well told story can have a longer lasting effect. at least once in american history such a story has achieved canonical status by answering serious legal injustice. in uncle tom‘s cabin (1852), the bestselling book in nineteen-century america after the bible, harriet beecher stowe describes senator john bird as one who has proposed and then lived as a complacent supporter of the fugitive slave law. suddenly, however, senator bird breaks that law by helping a frantic slave and her child to escape when they arrive on his doorstep.60 reading about senator bird, many in the nation began to change too. until this moment, the senator‘s ―idea of a fugitive slave was only an idea of the letters that spell the word.‖ stowe‘s story transforms this abstraction into ―the magic of the real presence of distress.‖61 for most americans the idea of an ―illegal immigrant‖ remains just such an abstraction. a more concrete understanding may well depend on finding new magic in the presence of distress. v. the role of imaginative literature in law the ability of fiction to influence legal decision-making is rare, but it does happen. truman capote‘s non-fiction novel in cold blood from 1965 offers a modern example. critics argue that the sympathetic portrait of a condemned man in its pages and capote‘s graphic rendering of actual executions contributed to the temporary ban on capital punishment in the united states between 1972 and 1976.62 that said, in cold blood also typifies the cross-purposes at work in the relatively new scholarly discipline of law and literature. any discussion of influence should acknowledge that the legal figures who worked on the case and who appear in capote‘s book all objected to his versions of the criminal investigation, trial, and execution.63 the tensions between law and the treatment of it by imaginative literature are inevitable ones. the law seeks justice before an obligatory audience. imaginative literature reaches a voluntary reader by exposing injustice. the law works through calibration; it eliminates extraneous elements for a decision on narrow grounds. literature seeks ever-expanding awareness. everything it presents is contingent. a legal decision drives toward a single goal. the text of the novel mimics multifaceted latin origins. the word textum means ―web,‖ or ―woven fabric,‖ ―a framework‖ made up of joined strands.64 the differences become clearest through the concept of ―standing.‖ to appear before the law, someone must have ―sufficient stake in a justiciable controversy to obtain judicial resolution of that controversy.‖ there are many hidden variables in this short statement. a litigant must be ―adversely affected‖ in a proper jurisdiction with ―a personal stake in the outcome‖ of ―a legally protectable and 60 harriet beecher stowe, uncle tom‘s cabin or, life among the lowly 141–61 (1986). ann douglas, in her ―introduction‖ to this edition gives the best-selling status of the novel. id. at 7. 61 id. at 155–56. 62 see, e.g., david galloway, real toads in real gardens: reflections on the art of non-fiction fiction and the legacy of truman capote, in the critical response to truman capote 144 (joseph j. waldmeir & john c. waldmeir eds., 1999). in cold blood plainly contributed to a shift in public opinion that led to the temporary abolishment of the death penalty in the united states.‖ furman v. georgia, 408 u.s. 238 (1972), created the ban. gregg v. georgia, 428 u.s. 153 (1976), lifted it for states that introduced a separate penalty phase in capital cases. upton sinclair‘s novel, the jungle, in 1906 had perhaps a clearer and more immediate legal impact, though on legislative law-making rather than directly on the courts. sinclair‘s description of corruption and unsanitary conditions in the meatpacking industry led to the meat inspection and pure food and drug acts of 1906. see james d. hart, the oxford companion to american literature 435 (phillip leininger ed., 4th ed. 1965). 63 for an account in which the legal authorities described in capote‘s book react against it, see george plimpton, capote‘s long ride: thirty-two years after the publication of ‗in cold blood,‘ the rest of the story comes out, new yorker, oct. 13, 1997, at 62, 64–71. 64 the oxford pocket latin dictionary 139 (james morwood ed., 2d ed. 1994). the immigration plight/immigration law vol. 2:2 254 tangible interest.‖ this personal stake must also involve a matter that has ―matured or ripened‖ with ―sufficient immediacy and reality‖ over ―a controversy worthy of adjudication.‖ all of these lock-step elements—a clear right in a specific legal conflict before the proper court when the conflict is worthy and ready to be resolved—must be present ―to take the initial step that frames legal issues for ultimate adjudication.‖65 everything, no matter how helter-skelter, has standing in a novel. nothing in fiction is ever by accident. even the smallest details and distinctions count. by conflating fact with fiction, the novelist crafts an artificial conflict until it becomes believable to a reader. the law must grapple instead with the arrival of a messy event that must be deciphered a certain way in court. of course, the dramatic advantages that the novel seems to have also depend on the license that lack of official power gives it. the law declares and answers. fiction can only amuse or persuade. in law, fiction typically persuades through an injustice that the law has failed to see, found to be without standing, or thought to be unripe for decision. the ways of talking about the interactions of literature and law can also be verbose or confusing as well as helpful. the connection between law and literature can refer to ―a culture of argument‖ in which justice becomes a ―translation‖ across fields of inquiry.66 another method of discussing the interaction between the two fields is that it can be ―a witness to crisis.‖67 it can set a scene of ―poetic justice‖ that ―constructs empathy and compassion in ways highly relevant to citizenship‖ and ―public reasoning.‖68 it can even illuminate ―the ideals of impersonality, neutrality, and objectivity that inform the law,‖ while suggesting ―a template . . . when the legal system breaks down.‖69 more dialectically, the relationship between law and literature welcomes ―cross-examinations.‖70 all theories on the subject agree, however, on one basic premise. fiction on a legal issue thrives on what has gone wrong. the connection succeeds when it can make the law see a problem that it has not solved. senator bird, the legal agent in uncle tom‘s cabin, comes alive when he accepts his own role in an injustice that should be rectified because it is suddenly in front of him. the direct confrontation and the fact that he risks his own life to do the opposite of what he had previously claimed to represent drive the account. nevertheless, the transfer of his realization to a reading public depends on something else. it depends on the power of the story told—the only power that fiction really has. walter benjamin explains this power by claiming that the ―story contains, openly or covertly, something useful.‖ ―the storyteller is a man who has counsel for his readers,‖ where ―counsel woven into the fabric of real life is wisdom.‖ benjamin distinguishes carefully here between information (―it lives only in the moment‖) and story (―it does not expend itself.‖). in effect, story remains permanently available. ―it preserves and concentrates its strength and is capable of releasing it even after a long 65 ―standing to sue doctrine,‖ and ―ripeness doctrine,‖ black‘s law dictionary 1328, 1405–06 (6th ed. 1990). for the best article on the concept of standing in modern law, see steven l. winter, the metaphor of standing and the problem of self-governance, 40 stan. l. rev. 1371, 1417–57 (1988). 66 james boyd white, introduction to justice as translation: an essay in cultural and legal criticism i, xiii (1990). 67 soshana felman & dori laub, foreword, testimony: crises of witnessing in literature, psychoanalysis and history i, xviii (1992). 68 martha c. nussbaum, the literary imagination, in poetic justice: the literary imagination and public life 1, 8–10 (1995). 69 richard a. posner, law and literature: a misunderstood relation 354 (1988). 70 brook thomas, cross-examinations of law and literature: cooper, hawthorne, stowe, and melville 13–16 (1987). 2012 columbia journal of race and law 255 time.‖71 precisely how a given story transcends time and place is a mystery, and many have tried to explain the phenomenon. most agree, though, that ―one purpose of fiction is to present and reveal character in such a way as to invite moral appraisal‖ or alternatively, ―to consider moral character from a philosophical point of view.‖72 either way, the good story must appeal to an enduring mentality. as harriet beecher stowe has already shown us, there is a deeper register in a timeless story. robert penn warren, novelist, poet and critic, may come closest when he asks, ―why should we, who have the constant and often painful experience of conflict in life and who yearn for inner peace and harmonious relation with the outer world, turn to fiction, which is the image of conflict?‖ his answer pulls us into the essential connection between story and reader: ―we turn to fiction for some slight hint about the story in the life we live.‖73 with that personal touch in mind, we can approach stowe‘s ―magic of the real presence.‖ e.l. doctorow, who blends historical event with fiction in his novels, gives as good an explanation as any. ―complex understandings, indirect, intuitive, and nonverbal, arise from the words of the story, and by a ritual transaction between reader and writer, instructive emotion is generated in the reader from the illusion of suffering an experience not his own.‖74 the ―ritual transaction‖ between harriet beecher stowe and her millions of readers turns ―illusion‖ into ―reality‖ through ―instructive emotion.‖ stowe uses that emotion to graft moral credibility onto an illusion that imagination turns into a believable event. much more than transitory understanding is therefore at stake in a story that changes a reader‘s moral compass. senator bird and the readers of him in uncle tom‘s cabin see a person—a young woman on the run from tyrannical but still legal authority. it undoubtedly helps to know that the escaping slave in senator bird‘s house is eliza harris with her little son harry, and that she has just miraculously crossed the frozen ohio river from kentucky on breaking blocks of ice. stowe could bring this figure to life so vividly for herself and her readers by knowing, as many of her contemporaries knew, of an actual incident from 1838 when just such an escaping young slave woman crossed the frozen ohio river to freedom in the town of ripley with a child in her arms.75 readers of this scene, or any other in which established authority is causing harm, cannot help but feel complicit in that authority. they cannot avoid their own support of a law that hurts an individual in their midst. whether the person hurt belongs in their midst is another question, but that issue disappears in the propinquity of the injury done by an unfair law. story, in other words, can create a reality that people will recognize and take seriously. as abraham lincoln recognized when meeting harriet beecher stowe in november 1862, ―so you‘re the little woman who wrote the book that made this great war.‖76 we read a story that touches reality to recognize the problems it contains for us, to find something about ourselves, and with an eye for what we can believe about the conflicts that fill our world. these are the timeless qualities that make henry roth‘s novel from 1934 a proof text on current issues of immigration. call it sleep portrays the torments of the most vulnerable immigrant, a small child, 71 walter benjamin, the storyteller: reflections on the works of nikolai leskov, in illuminations 83, 86–90 (harry zohn trans., 1969). 72 colin mcginn, ethics, evil, and fiction 3 (1997). 73 robert penn warren, why do we read fiction?, in new and selected essays 55, 55–56 (1989). 74 e.l. doctorow, false documents, in e.l. doctorow: essays and conversations 16, 16 (richard trenner ed., 1983). 75 see ann hagedorn, beyond the river: the untold story of the heroes of the underground railroad 135–39 (simon & schuster eds., 2002). 76 cindy weinstein, the cambridge companion to harriet beecher stowe 1 (2004). the immigration plight/immigration law vol. 2:2 256 and it accomplishes this task with stunning force. we are made to see the person at stake. an impact of this kind forces a question on its readers. how can we add new difficulties to the struggle of an innocent child without compromising the dignity and rights that are our own protection and definition? vi. call it sleep: the immigrant’s plight rendered if, as claimed, ―no book in american history molded public opinion more powerfully than uncle tom‘s cabin,‖ it may be so because of the book‘s transparency as a novel of sentiment.77 upton sinclair‘s the jungle, with its stark realism, and truman capote‘s non-fiction novel, in cold blood, based on a factual event, have great communal impact for the same reason. all three novels are communal touchstones through easily grasped and familiar generic form. the same cannot be said of henry roth‘s call it sleep. no less a critic than leslie fiedler has said that it took him fifty years to understand the full implications of call it sleep.78 why, then, is a modernist novel laced with structural innovations, sudden breaks, linguistic byplay in other languages, obscure symbolism, gaps in logic, and endless misconnections, the best choice for conveying the reality of the immigrant‘s plight? frederic jameson gives the beginning of a response when he suggests ―that every age is dominated by a privileged form, or genre, which seems by its structure the fittest to express its secret truths.‖79 wolfgang iser gives the rest of the answer when he explains the nature of generic integrity. fictions of different periods depend on different ―generic control of the esthetic response.‖ the genre of a given moment supplies its own ―filter of history.‖ it presents social and historical norms that apply ―to a particular environment‖ and establish ―an immediate link with the empirical reality familiar to its readers.‖ a reader‘s pleasure lies in the ―discovery‖ of the unfamiliar against the familiar, ―the unknown through the known,‖ that a timely shift in genre can supply. readers recognize their own reality around them through ―the unfolding of the text as a living event‖ with ―the resultant impression of lifelikeness.‖80 ―life-likeness‖ in literature in 1934, the year of publication of call it sleep, required the innovative generic techniques of modernism, a movement committed to ―rebellion and innovation in new work which attempts to break with tradition.‖81 in the disillusioned decades following world war i, modernism challenged ―a botched civilization‖ with what ezra pound famously called ―frankness as never before‖ and ―disillusions as never told in the old days.‖82 the only ―secret truths‖ worth telling had to be told in a new way, and the grounded quality and the shock value of call it sleep owe everything to this understanding. a certain timeliness within the genre gives life to ―a particular environment‖ in call it sleep. modernism coincides with the largest influx of new americans in the first three decades of the twentieth century, and roth‘s modernist novel captures the most dynamic moments in that influx, 1907 to 1913. 77 david s. reynolds, mightier than the sword: uncle tom‘s cabin and the battle for america xi (2011). 78 leslie fiedler, the many myths of henry roth, in new essays on call it sleep 17, 28 (hana wirth-nesher ed., 1996). 79 fredric jameson, postmodernism, or, the cultural logic of late capitalism 67, 88–89 (1991) (jameson carries the point into the ―generic estrangement‖ characteristic of writing and imagery in the postmodern period). 80 wolfgang iser, the implied reader: patterns of communication in prose fiction from bunyan to beckett xiii, 57–59, 81, 290 (1974). 81 j.a. cuddon, a dictionary of literary terms 391 (1977). 82 ezra pound, hugh selwyn mauberly, in the norton anthology of modern poetry 346, 346 (w.w. norton & co., 1973). 2012 columbia journal of race and law 257 the novel is our proof text because it is absolutely invested in the immigrant experience while stylistically using the run-ons and sudden juxtapositions in modernist technique to cauterize emotion and dramatize confusion without losing their psychological impact or allowing them to drop into sentimentality. two cohering elements give call it sleep a spontaneity often lacking in the genre of the immigrant novel, which generally tells its story in retrospective mode. first, roth insists on a stark, concrete presentism as his control of the field of perception, and second, his protagonist is a child, and we are held strictly within that child‘s limited but perceptive point of view. as the first element encourages electrifying juxtapositions of confusion and awareness to play across the page through ―severe discontinuities,‖ ―static simultaneity,‖ ―sensory apprehensions of life‘s surfaces,‖ and ―sustained mythic parallels‖—all crucial to the heteroglossic mix in modernist narratives—so the second element, the desperation to know an unknowing boy, makes childhood the archetypal scene and puzzle of immigration.83 the boy‘s very name, david schearl, bespeaks the fracture that coming to america creates in his existence. ―david‖ means ―beloved,‖ a symbol of his mother genya‘s obsessive devotion, while the patronymic ―schearl‖ is yiddish for ―scissors,‖ and it stands for the cutting anger of his father albert. albert schearl‘s frequent rages and violent behavior have two sources in call it sleep. arriving two years before his family, he has, like many immigrants, been unable to adapt to life in america and, having spent a great deal of time apart from his wife, he suspects that his young son might not be his own. in trying to fathom an adult world that is only half understood even by the adults around them, children are at once the most adaptable, the most vulnerable, and the most frantic of immigrants. questions are the dominant mode of a child, and david schearl is filled with them. unlike other children, however, he dares not ask those questions aloud in his divided household, representing the bewilderment of every mind in a totally new environment. the unspoken questions tumble upon us half articulated through an inner stream of consciousness. roth uses this silence in his frightened child to expose the conflict in the immigrant experience for what it is, a familial landscape of ferocious intensity. all of david‘s fears are confirmed in the end. the indelible image that he holds of his father is of a raised hammer poised to strike, and it will turn into the truth of the book. in a final cataclysm, albert loads his misfortunes onto the belief that david is ―a goy‘s get‖ rather than his own son. by ―whirling the whip in his flying hands,‖ he tries to kill the son who is so different from himself and becoming more different every day.84 much commentary has sought to verify albert‘s assumption about the paternity of david, but in the momentums of immigration, albert has no son and certainly never had the son he thinks he needs. america, not biology, has taken the son from the father. in introduction to others, albert objectifies david as ―what will pray for me after my death‖.85 the phrase bespeaks the jewish tradition of a son who remembers and prays after his father, but albert is raising a son who, in trying to adapt to the new world his father cannot fathom, sees only ―the face of a foe‖.86 the single thing david wants from the angry failure of a father he hates is the same physical strength in order to be free of him.87 83 for the quoted characteristics in modernism, see michael h. levenson, a genealogy of modernism: a study of english literary doctrine 1908–1922 201–06 (1984). for childhood as the archetype of immigration, see ruth wisse, the classic of disinheritance, in new essays on call it sleep 61, 61–62 (hana wirth-nesher ed., 1996). 84 henry roth, call it sleep 27, 401–02 (2005). 85 id. at 29. 86 id. at 114. 87 id. at 78, 177. the immigration plight/immigration law vol. 2:2 258 chilling indifference and vortices of fear also define the world beyond the home. the boy‘s first expressed thoughts are devastating in their portrayal of the immigrant condition: ―david again became aware that this world had been created without thought of him‖.88 every immigrant experiences this alienation from a new reality. the receiving world has no reason to make room, and its rhythms remain indifferent to the latest perceiver of them. all of the struggle to understand, all of the adjustments to belong, all of the effort to be understood must be made by the new arrival, and david can only do so with internalized miscomprehension. quick to perceive, he lacks a context for understanding. there may be no greater terror for a keen observer than the need to know against the knowledge that you cannot learn what is important to know. the misunderstandings, mistakes, abuse, guilt, and prejudices that guide the immigrant plot toward catastrophe are all heightened by the modernist stream of consciousness that roth uses to convey the psychology and thought processes of a figure defined by ―watchful, frightened eyes‖.89 silent except when forced to speak in the confusion of languages available to him, david can find no purchase in a world against him. lost in the city, he jumbles thought processes in panic when taken to a police station: trust nothing. trust nothing. trust nothing. wherever you look, never believe. if you played hide‘n‘-go-seek, it wasn‘t hide‘n‘-go-seek, it was something else, something sinister. if you played follow the leader, the world turned upside down and an evil force passed through it. don‘t play . . . . never believe. never play. never believe. not anything. everything shifted. everything changed. even words . . . . trust nothing. even sidewalks, even streets, houses, you looked at them. you knew where you were and they turned. you watched them and they turned. that way. slow, cunning. trust no‘—.90 david lives by a desperate controlling insight. he must hold himself apart to survive, and there is pathos in how lonely he has become in that recognition. the compounded negatives in his thoughts convey impossible levels of disbelief and doubt. david‘s alienation carries to every conceivable level of implication; people, words, buildings, even play are all suspect. dimension itself has failed him. everything has animate force, and it is ranged against him with malevolent intent. the quick linear sequence of phrases turns david‘s terror into a palpable force that we feel as well as read. the power of the novel lies in our visceral awareness of an alienated and necessarily fragmented immigrant mind constantly at work but misfiring because it is so obsessively alone. even so, there is no room to blame david‘s erring mind as it causes its own waves of distrust and anxiety. the strength of intellect in an innocent child is our guide. whatever has gone wrong, no reader can place the wrong in david schearl. the circumstances that nearly kill him belong to the immigrant‘s plight. we cannot expect david to do better than he does. all we can do is hope for his survival under better conditions. looking to david‘s strength of mind, some readers have found a semiotic bildüngsroman of growth in david‘s mastery of the language mix in call it sleep (his precocious knowledge of yiddish, english and especially hebrew, but not the polish of his parents‘ land).91 others use roth‘s interwoven jewish and christian references to create a unified symbol system.92 still others rely on the ghetto setting 88 id. at 17. 89 id. at 10, 173. in the second passage, genya asks her son ―aren‘t you just a pair of eyes and ears!‖ then, unconsciously, she gives us the problem of the book. ―you see, you hear, you remember, but when will you know?‖ id. at 173. 90 id. at 102–03. 91 see naomi diamant, linguistic universes in henry roth‘s call it sleep, 27 contemp. literature 336, 336–37 (1986). 92 james ferguson, symbolic patterns in call it sleep, 14 twentieth century literature 211, 218–19 (1969). 2012 columbia journal of race and law 259 to see a working-class novel with david as the avatar of labor movements.93 psychoanalytic approaches emphasize oedipal implications.94 myth critics give david the childhood of a new-world messiah.95 mythic subtexts and insertions of the highly spiritual in ordinary life—modernist techniques borrowed from t.s. eliot and james joyce—have encouraged the widest interpretive range.96 so many possibilities also exist because roth‘s protagonist is very early in the process of being formed by a hostile environment that bears no resemblance to the presumed land of promise and opportunity. more than anything, the novel describes the struggle of a small immigrant boy teetering on the brink of physical and psychological breakdown in a world he dreads far more than he inhabits. from the outset, call it sleep privileges negative shocks of recognition in the immigrant‘s plight. the book opens with the symbolic placement of genya and david ―in wonder‖ before the statue of liberty, but their wonder is negative rather than the conventionally assumed scene of awe on arrival. neither mother nor child sees a beckoning beacon of light. in splintered fragments of prose ―the massive figure‖ of the statue looms ominously above them ―charred with shadow‖; her halo, ―sparks of darkness roweling the air‖; her torch ―the blackened hilt of a broken sword‖.97 genya‘s articulation is correspondingly bleak. ―ach!,‖ she cries. ―then here in the new land is the same old poverty‖.98 roth‘s child protagonist lives in permanent alarm as he endures trauma after trauma in a confusing and openly threatening ghetto of mutually antagonistic immigrant groupings, and he is eventually driven beyond all endurance. walking home toward what he expects to be certain doom—a reality avoided only by extraordinary interventions—david‘s mind approaches total collapse. so beaten down is the boy that he merges his identity in the objects of the store windows that he passes. roth‘s stream of conscious narrative is horrifying in its capacity to illustrate a fragmenting mind falling out of control: only his own face met him, a pale oval, and dark, fear-struck, staring eyes, that slid low among the windows of the stores, snapping from glass to glass, mingled with the enemas, ointment-jars, green globes of the drug-store—snapped off—mingled with the baby clothes, button-heaps, underwear of the drygoods store—snapped off—with the cans of paint, steel tools, frying pans, clothes-lines of the hardware store—snapped off. a variegated pallor, but pallor always, a motley fear, but fear. or he was not. —on the windows how i go. can see and ain‘t. can see and ain‘t. and when i ain‘t, where? in between them if i stopped, where? ain‘t nobody. no place. stand here then. be nobody. always. nobody‘d see. nobody‘d know. always. always no.99 93 kenneth ledbetter, henry roth‘s call it sleep: the revival of a proletarian novel, 12 twentieth century literature 123, 123–30 (1966). 94 tom samet, henry roth‘s bull story: guilt and betrayal in call it sleep, 7 studies in the novel 569, 569–83 (1975); werner sollors, ‗a world somewhere, somewhere else‘: language, nostalgic mournfulness, and urban immigrant family romance in call it sleep, in new essays on call it sleep 147, 147–56 (hana wirth-nesher ed., 1996). 95 lynn altenbernd, an american messiah: myth in henry roth‘s call it sleep, 35 modern fiction studies 673, 673–74 (1989). 96 for roth‘s clear indebtedness to eliot and joyce, see brian mchale, henry roth in nighttown, or, containing ulysses,‖ and karen r. lawrence, roth‘s call it sleep: modernism on the lower east side. id. at 75–126. 97 roth, supra note 84, at 14. 98 id. at 12. 99 id. at 378–79. the immigration plight/immigration law vol. 2:2 260 the modernist aesthetic of compression and concreteness illustrates how the windows ―happen‖ to the boy instead of receiving his movement across them. the windows ―snap off,‖ and the shift in agency allows david to dissolve when his reflection does not appear in them. passivity of this kind can trouble any stranger momentarily on unfamiliar terrain, but david is permanently estranged and much more deeply hurt. he no longer exists or wants to exist. ―ain‘t nobody. no place.‖ even worse, he asks directly to ―be nobody.‖ the traumatized boy lacks all sense of his own identity in place. caught between home and the street without the means of bringing them together in meaningful terms, david suffers from disassociations familiar to a new foreign-born resident, but they are magnified in him by the calamity of total rejection at every level even though nothing that happens is his fault. the brilliance in roth‘s use of the child protagonist lies in the creation of an innocent figure who can believably think everything is his fault.100 trudging toward the home that is a domestic battleground, david schearl is immigrant agonistes. he turns into the quintessential alien, alienated even from himself. the reader is left asking, ―who or what will help?‖ roth‘s answer comes in an astounding affirmation out of relentless negation. throughout call it sleep the many separate denizens of the street have been animated by anti-semitism, malice, theft, confrontation, ridicule, and indifference, but they miraculously join together and come to the rescue at novel‘s end. roth posits a subliminal good will in the common denominator of the people, not an unusual assumption in either american fiction or american politics. this seemingly collectivized sense of virtue is not explained, but it lives in the sporadic exchanges of the misfits and hangers-on that help david. david nearly dies twice. first, under the uncontrolled blows of his father—―let me strangle him! let me rid the world of a sin!‖101—and then in panic-stricken flight into the uncaring streets of new york. running away from ―a reeling smear of words, twitching gestures, fractured lights, features, a flickering gauntlet of tumult and dismay‖102, the terrified boy reaches for the guiding hand he has never had. he unleashes the only alternative source of power he has ever seen, and there is authorial purpose in making that source mechanical in origin rather than human. the machinery of industrial america is the immigrant‘s resort, the tool for initial advancement, and all too often, a zone of peril and misfortune. peril is the result here. david‘s father has become a milkman, and the boy inserts the father‘s steel milk dipper into the live third rail of railroad tracks near his home, nearly electrocuting himself in a desperate quest for alternative meaning. knocked unconscious and badly burned, david is saved by the unlikeliest of sources. street people, the inhabitants of roth‘s personal version of t.s. eliot‘s waste land, led by a medical intern and a stock irish policeman, join hands to recover the boy and return him to his home. this last scene also gives us roth‘s ambiguous, much discussed title. spurned, nearly electrocuted, burned and filled with ―torpid heart-break‖ lying on his bed of pain, the boy hears his mother say ―you‘ll go to sleep and forget it all.‖ we know that he will forget nothing, and he tells us so when he thinks, without saying, ―one might as well call it sleep‖ with the added phrase ―it was only toward sleep that he knew himself‖.103 a mantra repeated over and over again by the boy who watches 100 this device, of an innocent thinking everything is his fault, mimics the tendencies in anyone overwhelmed by hegemonic as well as pervasive racial prejudice as roth seems to have been early in his life. 101 roth, supra note 84, at 402. 102 id. at 402–03. 103 id. at 440–41. 2012 columbia journal of race and law 261 everything around him through half-closed eyes, these phrases complete the book. as always, david‘s thoughts are not shared with anyone, and they contradict everything that has been said to him. what do these mysteriously reiterated phrases finally mean? call it sleep, as opposed to actual sleep, suggests what the thinker of the phrase has been from the beginning. the words define an active mind kept hidden from others and ultimately from itself. the endangered boy finds himself only in the privacy that his pretense of sleep creates in a crowded room. he has learned it is unsafe to speak, and so he remains proverbially silent. but if this is safety, what kind of growth, except twisted growth, can we expect from this? david exists only in a closed prism of apprehension. he is the most traumatized immigrant in american fiction, but no one sees it until he is seriously hurt, and here is our real quandary. what level of vulnerability is required in an immigrant figure on american soil before the world will help? the question could not be more obvious, but what gives it such flashing immediacy in call it sleep? all of the conventional negatives of the immigrant novel abound in call it sleep: dislocation, vocational despair, confused realities, misunderstanding, language difficulties, discrimination, racism, poverty, generational conflict, domestic strife, fear of authority, and disappointment in america as found. immigrant novels are also tortured by the imperative of assimilation because nothing seems more impossible within the generational moment that these novels choose to depict. the typical immigrant account is dominated by tribulations viewed from hindsight. nothing has turned out the way its protagonists have imagined, and everything is less than it should be. no other form in american literature insists quite so stridently on the unfairness of history. loss and regret are its defining characteristics, the calling cards of the genre.104 even so, the question of who will help, who will answer the immigrant‘s plight, does not attract notice in the typical immigrant novel in the way that it does in call it sleep. the same thematic factors percolate across the pages of henry roth‘s novel, but his use of them is anything but conventional. the hard mimetic look that modernism insists on giving to the ills and fragmentation of civilization through a sophisticated intellectual lens allows roth to break free of literary conformity and rework generic needs.105 roth uses the exigency that modernism gives narrative trajectory to make the anxieties in the immigrant‘s plight uniquely spontaneous, and he couches his themes within a boy‘s naiveté where only perception, not sincerity, can be questioned. david schearl‘s obvious intelligence struggles with his childish bewilderment, and the poignancy in that dualism creates a victim who is both a precious commodity and a person of worth.106 his situation foreshadows the equally poignant plight of aliens made fugitives in america today. today, david schearl would have a spanish name, and he would be subject to even deeper uncertainties, fears, discrimination, domestic conflict, and abuse because this time, as an undocumented immigrant, his ignorance would not have the saving grace of an available education. he would have to live in partial hiding, possibly on the move, and his parents would have more difficulty finding work. if they found employment at all, they could lose it at any moment, and they would have no communal 104 for canonical examples of these generic characteristics, see abraham cahan, the rise of david levinsky (1917); anziayezierska, bread givers (1925); o.e. rölvaag, giants in the earth (1927); mario puzo, the fortunate pilgrim (1964). 105 this intellectual lens includes an ―austerely pessimistic vision of human life and history,‖ an ―unillusioned ‗classical‘ sophistication,‖ the belief that american civilization has taken a wrong turn, and the tough-minded need to expose debased spirituality and lost direction in contemporary understandings. see david perkins, a history of modern poetry: from the 1890s to pound, eliot, and yeats 100–31, 294–300 (1976). 106 external proof of david‘s high intelligence comes in the section called ―the rail‖ from the one educated if misguided figure in the novel. when david gives an inspired reading in hebrew, his rabbi drums the boy‘s forehead with a blunt finger and finds ―an iron wit‖ there. roth, supra note 84, at 510. the immigration plight/immigration law vol. 2:2 262 resources against illness or injury. they would find similar but more intense levels of discrimination, racial hatred, and exploitation directed at them from surrounding communities in their ―illegality.‖ take the following possibilities. any one of albert‘s altercations in the novel—threats and fights outside of the home and physical abuse within it—might mean deportation today in an undocumented immigrant. the saving rescue and return to the home by the police at the novel‘s end would certainly lead to the disaster of identification. david and genya, if not deported with albert, would face hard choices—they could join the further enraged domestic abuser in impecunious exile or risk destitution or seek the alternative of a life in crime. genya, who lacks knowledge of the ghetto around her and of the english language, would be helpless, and her eight-year-old son, if not already deprived of education by law, would have to leave school to help in any way he could.107 if by luck or design they thrived, both would live in fear of exposure and deportation all of their lives no matter what they did or managed to accomplish. these differences indicate that call it sleep is not the answer but rather a precursor or model pointing the way to an aspect of an answer. the pivotal element, a catalyst for change, could be a latino best-selling novel. perhaps the generic integrities of that moment will dictate a movie instead, or a television show, a gigantic blog, a connecting social network online, or even a video game, but regardless the inevitable theme will be how current legalities hurt the rule of law more than they help it. it has, after all, happened that way before. but if so, the story, like its subject, remains shrouded in amorphous american understandings, and fiction is not evidence, it is mental engagement. left for analysis are the emerging conditions that might make such engagement a catalyst toward larger understandings. vii. the search for answers we have seen that ideological contradictions over immigration are deeply embedded in american culture just as they once were over slavery. change depends on how the shifting nature of these contradictions play across the events that control them. in one of the consummate strategies of call it sleep, henry roth places the contradictory attitudes toward ethnic minorities in his wayward figures of the street. his street people are hostile or caring depending on the moment and a certain caprice. in the same way, contending spirits of welcome and restriction—the reflexive helping hand against the equally reflexive push of rejection—chase each other in every argument about aliens in america. roth finds a way to turn these ambiguous forces into a helping hand, but it takes a crisis for it to happen. how close are we to a crisis involving undocumented immigrants? no one can say, but there are signs of a more general concern. we can use analogies in public discourse between slavery in antebellum america and illegal aliens today to suggest some of the dynamics at work. for just as the fugitive slave act of 1850 galvanized heightened controversy, so the severe restrictions that states like alabama, south carolina, and arizona have placed on undocumented immigrants have led to heightened communal scrutiny today.108 just as legality over runaway slaves became a focus for public debate, so the decisions that judges now make to uphold or block state laws on undocumented immigrants have led to new alarm over what those laws might mean to the people affected and surrounding communities.109 107 an immigrant novel that makes much of the need to forego education for the lowest rung of the labor force by a very young immigrant boy is: michael gold, jews without money (transaction publishers 1997) (1930). 108 for protests against the fugitive slave act when it reached a legal forum, see gordon s. barker, imperfect revolution: anthony burns and the landscape of race in antebellum america (2010). for evidence of one of one of many extended public discussions over severe new state restrictions on undocumented immigrants, see campbell robertson, in alabama, calls for revamping immigration law, n.y. times, nov. 17, 2011, at a15. 109 for a good account of antebellum legal tensions, see albert j. von frank, the trials of anthony burns: freedom and slavery in emerson‘s boston (1998). for parallel tensions today, see campbell robertson, alabama wins in ruling on its immigration law, n.y. times, sept. 29, 2011, at a16; alabama: judge blocks part of immigration 2012 columbia journal of race and law 263 the fact that controversy in both historical moments focuses on specific legal action suggests that an even larger analogy is at work. uneasiness enters the american rule of law whenever decent people under its province are deprived of fundamental rights, and we can see as much in both moments. even as great an avatar of regional legality as john c. calhoun sounds a little queasy when he claims, ―[b]e [slavery] good or bad, it has grown up with our society and institutions, and is so interwoven with them, that to destroy it would be to destroy us as a people.‖110 an adamant theorist of nullification, calhoun still cannot help sounding misguided when he says that liberty does not belong to ―the undeserving‖ as ―the result of some fixed law.‖111 which fixed law? where can we find calhoun‘s ―necessary moral qualifications‖ that say slaves cannot live ―under any other than an absolute and despotic government‖?112 the nature of the problem means that a lawyer like calhoun cannot rely simply on power. he feels compelled to twist the language of law and morality to answer a rule of law that is normative logic as well as imposition.113 some of the same queasiness drives legal discussions of undocumented immigrants today, and for the same reason. the problems defy meaningful legal solutions under present circumstances. two supreme court decisions, graham v. richardson114 in 1971 and mathews v. diaz115 in 1976, symbolize the ambivalence at work. under graham v. richardson, the supreme court will not let the states ―favor united states citizens over aliens in the distribution of welfare benefits‖116 because the fourteenth amendment safeguards the life, liberty, and property of ―any person.‖117 the protection of the amendment thus ―encompasses lawfully admitted resident aliens as well as citizens of the united states and entitles both citizens and aliens to the equal protection of the laws of the state in which they reside.‖118 graham restricts its decision to legal or resident aliens, but associate justice blackmun, writing for the court, goes much further when he announces in dicta that ―classifications based on alienage, like those based on nationality or race, are inherently suspect‖ and deserve ―heightened judicial solicitude.‖119 nevertheless, this ―solicitude‖ seems to disappear in mathews v. diaz. the supreme court holds there that ―congress may condition an alien‘s eligibility for participation in a federal medical insurance law, n.y. times, dec. 13, 2011, at a22; and robbie brown, parts of immigration law blocked in south carolina, n.y. times, dec. 23, 2011, at a18. 110 john c. calhoun, on the reception of abolition petitions, address before the united states senate (feb. 6, 1837), in 2 the works of john c. calhoun 630 (richard k. crallé ed., 1854–1856). 111 john c. calhoun, disquisition on government and a discourse on the constitution and government of the united states, in the works of john c. calhoun 1, 55 (richard k. crallé ed., 1851). disquisition on government is generally thought to have been written in the early 1840s, though only published in 1851. 112 id. at 54. 113 robert m. cover, nomos and narrative, 97 harv. l. rev. 4, 10 (1983). cover finds that a rule of law must be justified by both ―a legal world conceived purely as legal meaning‖ through normative understanding and ―the more familiar notion of law as social control.‖ the legal theorist in calhoun fully understands that he must respond on both levels. 114 graham v. richardson, 403 u.s. 365 (1971). 115 mathews v. diaz, 426 u.s. 67 (1976). 116 graham, 403 u.s. at 370. 117 graham, at 371. 118 graham, at 371–72. see also u.s. const. amend. xiv, § 1. (―[n]or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws‖) (emphasis added). 119 id. at 372–73. the immigration plight/immigration law vol. 2:2 264 program‖ in a way that ―does not deprive aliens of liberty or property without due process of law.‖120 curiously, though, as the court backs down from graham, it also strives to limit the distance covered. ―even one whose presence in this country is unlawful, involuntary or transitory is entitled to that constitutional protection [offered by the due process clause of the fourteenth amendment],‖ the court asserts, citing graham and a string of other opinions in support of immigrant rights.121 clearly, this second comment broadens the scope of the opinion more than it needs to by acknowledging the presence of illegal aliens. unhappiness and uncertainty over the immigration debate is alive in the court‘s discussion. if there are entitlements for immigrants, what are they, and how far do they extend? deferring to the plenary power doctrine that gives regulation of immigration to ―the political branches of the federal government,‖ the court in mathews shuts the door on a larger solution. ―[i]t is obvious that congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens,‖ associate justice stevens asserts,122 distinguishing graham (applicable to the states) from mathews (applicable to the federal government) on federalism grounds.123 is it so obvious? even here, one can sense some queasiness and a twinge of regret. indeed, justice stevens cannot keep himself from acknowledging that ―disparate treatment is ‗invidious‘‖124 and subject to charges of ―political hypocrisy.‖125 the legal minuet in cases like graham and mathews gives hopeful immigrants the prospect of rights without remedies. it holds all immigrants in place, in a no-man‘s land far from the dance floor, without elemental protections, and it recognizes undocumented immigrants while keeping them in their outlaw status without possibility of meaningful recovery or rectification. the problems, in other words, remain intractable in the eyes of the law. or is it better said that the problems depend on how they will be brought to the law? the antislavery movement addressed its own intractable problem, that of slavery, in three ways. it depended on relatively few leading figures who demonstrated the courage of their convictions.126 it fed popular recognition of the problem through antislavery conventions, fairs, publications, lectures, and the sale of household artifacts bearing the message of abolition.127 it also told a good story that those who believed in a rule of law could not ignore. harriet beecher stowe told the story, but wendell phillips, ―greatest of the antislavery orators,‖ gave it legal heft when he condemned ―a christian nation denying, by statute, the bible to every sixth man and woman of its population, and making it illegal for ‗two or three‘ to meet together, except a white man be present!‖128 120 mathews, 426 u.s. at 67. 121 id. at 82, 85. 122 id. at 83. 123 id. at 85–86. 124 id. at 80. 125 id. at 86. 126 for an account of these leading figures, see john stauffer, the black hearts of men: radical abolitionists and the transformation of race in america (2002). 127 antislavery conventions and fairs were popular events by the 1840s. one held on october 6 and 7, 1840 in worcester, massachusetts is popularized in the liberator. see eighth annual meeting of the massachusetts anti-slavery society, liberator, sept. 10, 1840, available at http://www.primaryresearch.org/bh/liberator/290.jpg. 128 wendell phillips, philosophy of the abolition movement, address to the american anti-slavery society, in slavery attacked: the abolitionist crusade 142, 142–43 (john l. thomas ed., 1965). it is thomas who says phillips is the greatest abolitionist orator. 2012 columbia journal of race and law 265 some of the same combinations of elite articulators attached to local or grassroots performances are beginning to emerge in connection to the plight of immigrants in america today. this connection is reinforced by the use of instantaneous and widespread electronic communication. when, for example, the american heritage dictionary in its fifth edition published and then broadcast a bland definition of the controversial phrase ―anchor baby‖ in november of 2011, the immigration policy center, a proimmigration research group in washington, led an immediate campaign in the blogosphere against ―the poisonous and derogatory nature of the term‖ and quickly gained a revised dictionary definition, which then identified the term as ―offensive‖ and relegated ―to how the dictionary treats a wide range of slurs.‖129 a more enduring connection of levels of activism comes through the coalition of immokalee workers (ciw), a community center with national outreach. ciw helps documented as well as undocumented immigrants by providing attention to their material well-being, by handling specific problems in discrimination, and by working with other social agents to win immigrants dignity and proper recognition of their rights. the organization works in the field with immigrants, especially with those in farming settings. its website features notable political figures such as jimmy carter, hillary clinton, and barack obama and has established connections with members of the u.s. senate, the department of labor, the department of justice, and the department of state.130 these and other initiatives demonstrate a way in which new understandings of a growing problem can develop. already, the federal government has been reviewing the strictness of its deportation policies.131 of course, more official legal reform is the goal of pro-immigration groups. the communal impetus for such reform and the catalysts that might make it happen, however, are in the future. an estimated twelve million illegal immigrants in the current united states live with fear and vulnerability every day. if their difficulties are not as apparent as in call it sleep, it is because everything about them must remain hidden from the law and from anyone who might report them, including lawabiding employers. for most americans, undocumented immigrants remain a concept rather than the physical reality of hardships inflicted on individual lives. these millions dare not speak in public. they cannot apply for better jobs if they are lucky enough to have one, which can all too easily be taken away. communal services are kept from them. they must shun places of worship where they might be identified, and they risk exposure and deportation if one of them is placed in an educational institution. when does it begin to become dangerous to have so many people living without basic rights or possibilities in a country where well-being is defined by those rights and possibilities? how does a country recognize its better self? on january 6, 1941, president franklin d. roosevelt made an important effort through his identification of four vital freedoms: freedom of speech, freedom of worship, freedom from want, and freedom from fear. the four together symbolized ―the supremacy of human rights‖ in the world and defined ―a friendly, civilized society‖ at home, a society in favor of ―a perpetual peaceful revolution—a revolution that goes on steadily, quietly, adjusting itself to changing conditions.‖132 today fixed conditions in the united states deprive every illegal alien of all four 129 julia preston, anchor baby: a term redefined as a slur, n.y. times, dec. 9, 2011, at a21. the original definition ran ―a child born to a noncitizen mother in a country that grants automatic citizenship to children born on its soil, especially such a child born to parents seeking to secure eventual citizenship for themselves and often other members of their family.‖ 130 see coalition of immokalee workers, http://www.ciw-online.org (last visited apr. 3, 2012). i owe the knowledge of this source and information about it to professor mark barenberg and ciw‘s website. 131 julia preston, u.s. to review cases seeking deportations, n.y. times, nov. 17, 2011, at a1. 132 president franklin d. roosevelt, state of the union address (jan. 6, 1941). http://www.ciw-online.org/ the immigration plight/immigration law vol. 2:2 266 freedoms with the dignity that goes with them, and legal surveillance of the deprived has reached levels of intrusive sophistication that begin to alter the meaning of community for everyone in it. what will it take to correct a problem of such alarming and growing proportions? general emancipation came only in the violence of civil war when a slave population had reached almost four million or twelve percent of the population then in the united states. illegal immigrants now represent three times that number in population, and if the estimates of illegal entry continue to remain in such excess of deportation rates, the same per capita rate of twelve percent could be reached in a lifetime. roughly speaking, that would mean the presence of forty million souls without rights or expectations in america.133 can the united states, ―a friendly, civilized society‖ find a way to adjust to this ―changing condition‖? how will it happen and will it be done ―quietly‖ as part of ―a perpetual, peaceful revolution‖ or violently? the catalyst of change, if there is to be one, must almost certainly come from outside of official channels, and it must tell a story that large numbers will want to hear and absorb. the form of that story, now unknown, must be as highly recognizable and powerful as its message. whatever its form, the message itself will say that current legalities hurt the rule of law more than they help it. will the rule of law, part normative and part impositional, listen? for that to happen, the story will have to be extremely well told. it will be the story of the millions of illegal aliens who belong to america because they have been brought up in america with american values and have no other place to go. 133 the figures in this paragraph are necessarily estimates and dependent on fluctuating economic conditions that either attract or discourage illegal immigration in a given year. united states census, 1860, finds a total population of 31,443,321. the best-informed estimate for a slave population in 1860 is 2,953,760. see donald b. dodd, historical statistics of the state of the united states: two centuries of the census, 1790–1990 103 (1993). see also john cummings & james adna hill, negro population, 1790–1915, at 53 (1918). u.s. census figures for the current united states place total population at 313,520,824. see u.s. census bureau, www.census.gov/population/www/popclockus.html (last visited may 10, 2012). 2015 columbia journal of race and law 145 bars to education: the use of criminal history information in college admissions rebecca r. ramaswamy* one in four americans has a record reflecting some form of involvement with the criminal justice system, and the law currently does very little to protect an individual from discriminatory treatment on the basis of that record. in 2010, the center for community alternatives published a report that revealed a widespread practice among colleges and universities of obtaining and relying upon criminal history information in admissions proceedings. this note asks whether, if this practice results in a racially disproportionate adverse impact on admissions decisions, there exists disparate impact liability that could be challenged by the department of education under title vi of the civil rights act. the note begins by focusing on the well-documented overrepresentation of people of color in the criminal justice system and some of the post-incarceration social harms that affect this population. next, the note explores challenges to the use of criminal history information in the employment context—which has received much more attention than higher education—and how disparate impact frameworks in education cases have been used to challenge other practices that create disproportionate adverse effects. finally, the note describes the application of the disparate impact test to the practice at issue and concludes that if a prima facie case can be made, the purported educational necessity behind this practice can be achieved through less discriminatory means. i. introduction………………………………………..................................... 146 ii. racial implications of criminal history use and social harms... 147 a. the era of mass incarceration in the united states....................... 147 b. access to higher education opportunities is a key element in successful reentry.............................................................................. 151 iii. criminal history records in the employment context and disparate impact claims in higher education.................................. 152 a. the use of criminal histories in employment decisions..............152 b. disparate impact claims in higher education……........................ 154 iv. a disparate impact claim under title vi of the civil rights act................................................................................................................. 154 a. the use of criminal histories in college admissions has a disproportionate adverse effect on black and latino applicants..........................................................................................155 b. the use of criminal histories in college admissions is not an educational necessity..................................................................... 157 c. there are alternative practices that would be more effective in 146 bars to education vol. 5.2 promoting campus safety and have less of a racially disparate impact............................................................................................... 161 v. alternative solutions............................................................................162 vi. conclusion.................................................................................................163 i. introduction it was such a chilling effect. to think that i wanted to go to college and here, as i'm on my path to change my life, i'm still being asked these questions. —glenn martin founder and president, justleadershipusa (incarcerated 6 years)1 in this era of mass incarceration and tough-on-crime policies in the united states, it is becoming increasingly common for americans to have some form of involvement with the criminal justice system. records of this involvement can have serious implications for individuals even after they have completed their punishments. legal scholars have extensively explored employers’ use of such records in hiring decisions, and a small number of claims have been brought against this practice, with limited success.2 an issue that has received less scholarly and legal attention is the prevalence of the use of criminal justice involvement screenings to inform admissions decisions for colleges and universities.3 when the center for community alternatives conducted a survey of colleges and universities, a majority of the 273 respondents—sixty-six percent—reported that they collect criminal justice information from their applicants in admissions proceedings.4 twenty-five percent of the responding schools reported that they impose an automatic bar to admission in at least some criminal-justice-related circumstances,5 and forty percent stated that they would not admit an applicant who is currently completing a term of community supervision.6 about thirty-three percent reported that pending misdemeanors or misdemeanor arrests can hurt an application, and eleven percent stated that they viewed “lesser-offense youthful offender adjudications” in a negative light.7 based on this survey, the center for community alternatives concluded that screening of college applicants is becoming increasingly common; that people with criminal records are subjected to special admissions screening procedures; that college personnel other than admissions officials often participate in the admissions decision; that a wide range of criminal * j.d. 2015, columbia law school; b.a. 2009, vassar college. the author would like to thank professor susan sturm for her guidance and the staff of the columbia journal of race and law for their invaluable editing contributions. the author would also like to thank aviva tevah, formerly of the new york reentry education network, for introducing me to this important issue. 1 center for community alternatives, passport to the future: accessing higher education in an era of mass incarceration, vimeo (2013), http://vimeo.com/51358967. 2 see roberto concepción, jr., need not apply: the racial disparate impact of pre-employment criminal background checks, 19 geo. j. on poverty l. & pol’y 231 (2012). 3 see center for community alternatives, the use of criminal history records in college admissions: reconsidered (2010); center for community alternatives, closing the doors to higher education: another collateral consequence of a criminal conviction 4 (2008) (“examples of state university systems that ask about criminal convictions include north carolina, florida and new york”). 4 id. 5 id. at 17 (“convictions for a violent or sex offense are the most likely to trigger an automatic denial of admission”). 6 id. 7 id. at 18. 2015 columbia journal of race and law 147 convictions and even arrests can negatively impact the admissions decision; that failure to disclose a conviction can result in rejection or expulsion; and that even after admission, students with records may be subject to special restrictions.8 civil rights laws do not provide any special protection for people with criminal records, but the welldocumented racial disparities within the criminal justice system create a close relationship between intentional discrimination against people with criminal justice involvement and unintentional discrimination on the basis of race.9 the potential legal vulnerability of this admissions practice is a race-based disparate impact claim under title vi of the civil rights act (which prohibits discrimination on the basis of race, color, or ethnicity by organizations receiving federal funding) brought by the department of education’s (doe) office for civil rights. this note argues that colleges and universities that receive federal funding may be vulnerable to a racebased disparate impact claim under title vi of the civil rights act if they use records of applicants’ criminal histories to inform admissions decisions. part i draws the connection between intentional discrimination on the basis of criminal histories and unintentional discrimination on the basis of race. it explores the implications of the entrenched racial disparities within the criminal justice system as well as some of the myriad consequences of criminal justice system involvement and the role of education in overcoming their harmful effects. part ii begins with an overview of how the equal employment opportunity commission (eeoc) has used disparate impact claims under title vii to challenge employment discrimination against people with criminal histories. the second half of part ii explores the doe’s ability to bring disparate impact claims through its title vi authority in the context of higher education. part iii develops the disparate impact legal claim that could be brought if the doe used the strategy that the eeoc has used in employment cases under title vii to attack this discrimination in higher education under title vi. ii. racial implications of criminal history use and social harms a. the era of mass incarceration in the united states the united states comprises just five percent of the world’s population yet incarcerates almost twentyfive percent of the world’s prisoners, more than any other country in the world.10 one in four adult americans has a record reflecting some form of involvement with the criminal justice system.11 recidivism rates are as high as sixty percent, about three percent of the people in the country are under some form of correctional supervision, and black and latino men are significantly overrepresented in prison populations.12 8 id. at 21. 9 id.; see also michelle alexander, the new jim crow: mass incarceration in the age of colorblindness (the new press 2012). 10 walker newell, the legacy of nixon, reagan, and horton: how the tough on crime movement enabled a new regime of raceinfluenced employment discrimination, 15 berkeley j. afr.-am. l. & pol’y 3, 4 (2013); defending justice, fact sheet: the united states versus the world 1 (2010), available at http://www.publiceye.org/defendingjustice/pdfs/factsheets/9-fact%20sheet%20-%20us%20vs%20world.pdf; center for community alternatives, supra note 1. 11 madeline neighly & margaret stevenson, nat'l. emp't. law project, criminal records & employment: data on the disproportionate impact on communities of color (2009), available at http://nelp.org/content/uploads/2015/03/criminalrecordsimpactcommunitiesofcolor.pdf. 12 see susan sturm et al., pathways of possibility: transforming education’s role in reentry (2013), available at http://www.reentryeducationnetwork.org/uploads/1/2/5/3/12534585/pathways_conference_report.pdf; see also education from the inside out, fact sheet: restoration of pell grant eligibility, available at http://www.eiocoalition.org/files/eio_pell-grant-2013-fact-sheet_v4.pdf; the pew ctr. on the states, one in 100: behind bars in america 2008 6 (2008), available at http://www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/sentencing_and_corrections/on 148 bars to education vol. 5.2 scholars and researchers have provided extensive documentation revealing that every stage of the criminal justice system is imbued with racial bias, whether deliberate or inadvertent.13 this disparity begins in schools and is perpetuated through racially-imbalanced policing practices and enforcement patterns, especially in the context of drug laws. young people of color are overrepresented in suspension rates and in-school arrest rates, dramatically increasing the likelihood that they will interact with more formal criminal justice systems in their futures; scholars have termed this phenomenon the “school-to-prison pipeline.”14 students of color tend to be punished more often than their white peers,15 and the punishments tend to be more severe, even for minor or subjective offenses, such as “defiance of authority.”16 one example of racially disparate discipline in schools is the once-popular use of “zero tolerance” policies, which “deal out severe punishment for all offenses, no matter how minor, ostensibly in an effort to treat all offenders equally in the spirit of fairness and intolerance of rulebreaking.”17 zero tolerance policies have been the target of criticism for a variety of reasons,18 including the disparate impact they have on students of color.19 the policies tend to be more prevalent in communities of color,20 and studies have shown that black and latino students are disciplined under these policies at higher rates than white students.21 perhaps the most troubling aspect of zero-tolerance policies is that they transform ein100pdf.pdf (analyzing data to show that 1 in 106 white men, 1 in 36 hispanic men, and 1 in 15 black men is behind bars). 13 see the use of criminal history records, supra note 3, at 25; see also david cole, no equal justice: race and class in the american criminal justice system (the new press 1999); steven kalogeras, annotated bibliography: racial disparities in the criminal justice system, the sentencing project (2003); richard c. dieter, death penalty info. ctr., the death penalty in black and white: who lives, who dies, who decides (1998); andrew golub, bruce d. johnson, & eloise dunlap, the race/ethnicity disparity in misdemeanor marijuana arrests in new york city, 6 criminology & pub. pol’y 131 (2007); ed a. mufioz, david a. lopez, & eric stewart, misdemeanor sentencing decisions: the cumulative disadvantage effect of “gringo justice,” 20 hisp. j. of behav. sci. 298 (1998); david c. baldus et al., racial discrimination in the post-furman era: an empirical and legal overview, with recent findings from philadelphia, 83 cornell l. rev. 1638 (1998). 14 see johanna wald & daniel j. losen, deconstructing the school-to-prison pipeline: new directions for youth development (jossey-bass 2003); see also russell j. skiba, robert s. michael, & abra carroll nardo, ind. educ. pol’y ctr., the color of discipline: sources of racial and gender disproportionality in school punishment, policy research report #srs1 (2000); marsha weisman, the school-to-prison pipeline and criminalizing youth: costs, consequences, and alternatives, 6 the link 6 (2008), available at http://www.communityalternatives.org/pdf/thelink2008spring.pdf. 15 see adira siman, challenging zero tolerance: federal and state legal remedies for students of color, 14 cornell j.l. & pub. pol’y 327, 333 (2005) (citing skiba et al., supra note 14, at 1-3). 16 id. at 334 (citing the advancement project & the civil rights project, harvard univ., opportunities suspended: the devastating consequences of zero tolerance 9-13 (june 2000)). 17 cherry henault, zero tolerance in schools, 30 j.l. & educ. 547, 547 (2001) (citing russ skiba & reece peterson, the dark side of zero tolerance: can punishment lead to safe schools? 80 phi delta kappan 372, (1999)). 18 siman, supra note 15, at 331 (“many commentators and litigants express concern about the due process implications of zero tolerance policies. another basis for criticism is the rigid application of policy that results in the discipline of students for seemingly harmless conduct. anecdotal evidence of such events is plentiful. schools have expelled or suspended students of all ages for possession of ‘weapons’ such as paper clips, nail files, and a toy ax used in a halloween costume, drugs, including aspirin, midol, and white-out; and general misbehavior such as humming and tapping on a desk, which was classified as ‘defiance of authority.’”). 19 id.; see also henault, supra note 17; avarita l. hanson, have zero tolerance school discipline policies turned into a nightmare? the american dream’s promise of equal educational opportunity grounded in brown v. board of education, 9 u.c. davis j. juv. l. & pol’y 289 (2005). 20 id. 21 see henault, supra note 17, at 550 (“the department of education recently released figures showing that though african american children represent only 17% of public school enrollment nationally, they make up 32% of out-ofschool suspensions. in contrast, white students, who make up 63% of the national enrollment, make up only 50% of the suspensions and 50% of the expulsions. another recent study indicates that black children, especially black males, 2015 columbia journal of race and law 149 schools “into conduits for the juvenile justice system,”22 as many schools “refer students to the criminal justice system” as part of their zero-tolerance program implementation.23 outside schools, heightened police activity in communities of color and racial profiling have led to more arrests for people of color and have exacerbated racial disparities in the criminal justice system.24 even as the percentage of white men in prisons has dropped in recent years,25 the incarceration rate of black men continues to rise.26 an estimated thirty percent of black men have a felony conviction, twelve percent between the ages of sixteen and thirty-four are incarcerated, and more than twenty-four percent are currently on probation or parole.27 black and latino individuals are imprisoned at rates of 3,218 per 100,000 and 1,220 per 100,000, respectively, while white people are imprisoned at a rate of only 463 per 100,000.28 the racialization of the criminal justice system is particularly prominent in the context of the disparate enforcement of drug laws, which contributes significantly to the overrepresentation of people of color in criminal justice statistics.29 human rights watch has reported soaring arrest rates for black americans since the onset of the war on drugs.30 sentencing disparities also account for a significant amount of drug-related criminal justice disparities among racial groups. in 1986, the u.s. congress passed laws creating a 100 to 1 disparity in sentencing for the possession or trafficking of crack cocaine compared to trafficking—not possession—of powder cocaine.31 the law was motivated largely by public fervor and fear resulting from an extensive media campaign portraying crack as more dangerous and more addictive than powder cocaine,32 receive more frequent and harsh discipline than any other minority group.”); peter follenweider, zero tolerance: a proper definition, 44 j. marshall l. rev. 1107, 1119 (2011) (“some educators further criticize ztps because of the disparate impact on minority students. one study shows that while african americans make up over seventeen percent of the student population, they account for thirty-two percent of the suspensions and expulsions. further, while white students make up sixty-three percent of the student population, they account for less than fifty percent of suspensions and expulsions. some attorneys are convinced that racial profiling is a major factor when schools penalize students for nebulous offenses such as disrespect and defiance. the disparate impact is a direct result of school officials blindly applying ztps without giving consideration to the social and cultural differences at play within the student body.”) (internal citations omitted). 22 siman, supra note 15, at 332. 23 follenweider, supra note 21, at 1120. 24 see the use of criminal history records, supra note 3, at 25; see also delores d. jones-brown, the system in black and white: exploring the connections between race, crime, and justice (michael w. markowitz ed., 2000); eric t. schneiderman, new york state office of the attorney general, a report on arrests arising from the new york city police department’s stop-and-frisk practices (new york state attorney general civil rights bureau 2013). 25 bruce western, david weiman, & jeffrey r. kling, princeton univ., the labor market consequences of incarceration (2001), available at http://www.irs.princeton.edu/pubs/pdfs/450.pdf. 26 newell, supra note 10, at 5. 27 the use of criminal history records, supra note 3, at 25; christopher uggen, jeff manza, & melissa thompson, citizenship, democracy, and the civic reintegration of criminal offenders, 605 annals of the am. acad. of pol. & soc. sci. 281 (2006); paige m. harrison & allen j. beck, bureau of justice statistics, u.s. dep’t of justice, prisoners in 2004 (2005), available at http://www.bjs.gov/content/pub/pdf/p04.pdf; lauren e. glaze & thomas p. bonczar, bureau of justice statistics, u.s. dep’t of justice, probation and parole in the united states, 2008 (2009), available at http://www.bjs.gov/content/pub/pdf/ppus08.pdf. 28 glaze & bonczar, supra note 27. 29 the use of criminal history records, supra note 3, at 26 (“it is well documented that illegal drug use does not differ significantly for whites, blacks or hispanics, yet 62 percent of people incarcerated for drug crimes are black. recent research on marijuana possession arrests shows huge disparities as well.”) (internal citations omitted); see generally alexander, supra note 9. 30 racially disproportionate drug arrests, human rights watch, http://www.hrw.org/legacy/reports/2000/usa/rcedrg00-05.htm (last visited mar. 17, 2014). 31 anti-drug abuse act of 1986, pub. l. no. 99-570, 100 stat. 3207. 32 alexander, supra note 9, at 52 (“in june 1986, newsweek declared crack to be the biggest story since vietnam/watergate, and in august of that year, time magazine termed crack ‘the issue of the year.’ thousands of stories 150 bars to education vol. 5.2 though there is no empirical or scientific evidence supporting this characterization.33 in 2010, president obama signed a bill to reduce the disparity from 100 to 1 to 18 to 1.34 while this reduction was an improvement, the imbalanced ratio continues to disproportionately impact people of color. 35 furthermore, the issue of sentencing length, while important, does not address the lasting stigma of incarceration in all other aspects of a person’s life.36 given the racial disparities in every aspect of the criminal justice system, some scholars have characterized the era of mass incarceration as a direct backlash against the racial progress of the civil rights movement of the 1960s.37 in this view, the criminal justice system is a modern tool for the subjugation of black people, not unlike slavery and the jim crow laws.38 researchers have found that white voters were instrumental in supporting the war on drugs, especially white voters who demonstrated animosity toward people of color: the war on drugs proved popular among key white voters, particularly whites who remained resentful of black progress, civil rights enforcement, and affirmative action. beginning in the 1970s, researchers found that racial attitudes—not crime rates or likelihood of victimization—are an important determinant of white support for “get tough on crime” and antiwelfare measures.39 about the crack crisis flooded the airwaves and newsstands, and the stories had a clear racial subtext. the articles typically featured black ‘crack whores,’ ‘crack babies,’ and ‘gangbangers,’ reinforcing already prevalent racial stereotypes of black women as irresponsible, selfish ‘welfare queens,’ and black men as ‘predators’—part of an inferior and criminal subculture.”) (citing craig reinarman & harry levine, the crack attack: america’s latest drug scare, 1986-1992, in images of issues: typifying contemporary social problems 147 (joel best ed., 1995)). 33 id. 34 jim abrams, congress passes bill to reduce disparity in crack, powder cocaine sentencing, the washington post, july 29, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/07/28/ar2010072802969.html (“the bill also eliminates the five-year mandatory minimum for first-time possession of crack, the first time since the nixon administration that congress has repealed a mandatory minimum sentence. it does not apply retroactively. eighty percent of those convicted of crack cocaine offenses are black. under current law, possession of five grams of crack triggers a mandatory minimum five-year prison sentence. the same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine. the new legislation will apply the five-year term to someone with 28 grams, or an ounce, of crack.”). 35 alexander, supra note 9, at 139 (“there should be no disparity—the ratio should be one-to-one.”). 36 id. (“[t]hat disparity is just the tip of the iceberg. . . . [t]his system depends primarily on the prison label, not prison time. what matters most is who gets swept into this system of control and then ushered into an undercaste. the legal rules adopted by the supreme court guarantee that those who find themselves locked up and permanently locked out due to the drug war are overwhelmingly black and brown.”). 37 newell, supra note 10, at 5; see also loic wacquant, from slavery to mass incarceration: rethinking the ‘race question’ in the u.s., 13 new left rev. 41, 41-42 (2002) (“[s]lavery and mass imprisonment are genealogically linked . . . one cannot understand the latter . . . without returning to the former as historic starting point and functional analogue.”); bruce western, punishment and inequality in america 4 (2006) (arguing that the modern trend of disparate and expanded incarceration of african americans was a response to the racial unrest of the 1960s & 70s). 38 newell, supra note 10, at 10 (“given the united states' legacy of institutionalized racism, policies with significantly adverse effects on minority groups must be critically and closely examined. in this tradition, many analyses of the present day criminal justice system have identified its institutions as suspect. loic wacquant, a university of california sociologist, has argued that mass incarceration is the direct offspring of slavery and jim crow and cannot be understood without the context of this country's history of subjugating african-americans. a recent article by dorothy roberts, a professor at the northwestern school of law, similarly claims that the ‘u.s. criminal justice system has always functioned . . . to subordinate black people’ and that the system consciously ‘refashions past regimes of racial control to continue to sustain white supremacy.’ other scholars, such as bruce western, a princeton sociologist who has written extensively on incarceration, make less virulent claims about the history of today's criminal justice regime. but even western notes the effect that ‘anxieties and resentments of working class whites’ during the 1960s had on the policies behind the incarceration explosion.”) (internal citations omitted). 39 alexander, supra note 9, at 54. 2015 columbia journal of race and law 151 due to the racial disparities within the criminal justice system, any policy that discriminates based on criminal history records will unavoidably have a race-based effect.40 some scholars decry the use of criminal records as a form of race-based discrimination, “serving the same function, albeit unintentionally, as the black codes and jim crow laws in earlier times.”41 b. access to higher education opportunities is a key element in successful reentry with the support of president obama, the doe has made education for people with criminal histories part of its policy agenda in furtherance of its goal that “by 2020 the us would again have the world’s highest proportion of college graduates and the most competitive workforce, and every american will complete at least one year of post-secondary education or training.”42 there is extensive evidence showing that education as a strategy for successful reentry is cost-effective, reduces recidivism better than any other type of intervention, reduces unemployment, and increases public safety by making people with criminal justice involvement more productive members of their communities.43 people with criminal justice involvement face multiple barriers to higher education opportunities both inside and outside correctional facilities. in 1994, president clinton signed the violent crime control and law enforcement act, which included a provision making incarcerated individuals ineligible to receive pell grants.44 following this enactment, most states also withdrew their financial support, ultimately reducing the number of college programs in correctional institutions nationwide from over 350 to eight.45 upon reentry, formerlyincarcerated individuals continue to face barriers to higher education opportunities. employment and housing are usually the primary priorities for people in reentry, and employment is often a requirement of parole.46 for people with criminal histories, obtaining employment can be extremely difficult.47 education can seem comparably unimportant and unattainable. financial and bureaucratic barriers to education exacerbate this problem. applicants indicating that they have criminal justice system involvement are often required to provide complete criminal histories, authorizations for schools to access their records, and letters from their parole officers, whose helpfulness varies considerably on an individual level.48 combined 40 the use of criminal history records, supra note 3, at 25. 41 id. at 4. 42 susan sturm et al., supra note 12, at 8. 43 education from the inside out, supra note 12, at 1 (“for every dollar invested in correctional education programs, two dollars are saved through prevented recidivism”); press release, dep’t of justice, justice and education departments announce new research showing prison education reduces recidivism, saves money, improves employment (aug. 22, 2013) (“attorney general eric holder and secretary of education arne duncan today announced research findings showing that, on average, inmates who participated in correctional education programs had 43 percent lower odds of returning to prison than inmates who did not”); susan sturm et al., supra note 12, at 3; center for community alternatives, supra note 1 (“people who come into college from an experience of prison disproportionately participate in human services, community development, leadership, and public problem solving fields.”). 44 violent crime control and law enforcement act, pub. l. no. 103–322 § 20411 (1994) (“(a) in general.— section 401(b)(8) of the higher education act of 1965 (20 u.s.c. 1070a(b)(8)) is amended to read as follows: ‘(8) no basic grant shall be awarded under this subpart to any individual who is incarcerated in any federal or state penal institution.’”). 45 education from the inside out coalition, policy brief: restoration of pell grant eligibility, available at http://www.eiocoalition.org/files/eio_pell-grant-2013-policy-brief_v4.pdf. 46 the use of criminal history records, supra note 3. 47 kimani paul-emile, beyond title vii: rethinking race, ex-offender status, and employment discrimination in the information age, 100 va. l. rev. 893, 913-14 (2014) (“nine out of ten employers now inquire into the criminal history of job candidates, and research shows that the existence of a record can play a decisive role in the hiring process, reducing one's chance of receiving a callback or job offer by almost 50%.”). 48 center for community alternatives, supra note 1. 152 bars to education vol. 5.2 with pressures to obtain employment and housing, these administrative barriers have a chilling effect on the matriculation rates of people with criminal records.49 finally, a number of schools impose at least some criminal-justice-related automatic bar to admission.50 fifteen percent of respondents to the survey administered by the center for community alternatives reported that a negative recommendation from a campus security office could result in automatic denial of admission.51 an applicant who fails to disclose a criminal record that is later discovered is even more likely to be denied admission or to have his or her admission offer rescinded,52 and violent or sex offense convictions are the most likely to trigger automatic denial.53 some schools bar admission for people who are currently under any form of community supervision, such as parole or probation, which can sometimes extend five years, ten years, or the individual’s entire lifetime.54 iii. criminal history records in the employment context and disparate impact claims in higher educations higher education practices that disadvantage people with criminal histories have thus far not been subjected to legal review under the civil rights act. if the doe were to bring a claim against these practices, it could do so under title vi, which provides that “no person in the united states shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”55 such a lawsuit has never been attempted. employment practices that disfavor individuals with criminal histories, however, have been legally challenged (by the eeoc), albeit with limited success. employers are subject not to title vi, but to title vii of the civil rights act, which provides, in part, that “it shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”56 the use of disparate impact claims against employment practices under title vii provides a framework that could potentially translate to similar claims against federally-funded higher education institutions under title vi. a. the use of criminal histories in employment decisions title vii of the civil rights act explicitly provides that employers can violate the act not only through practices that intentionally discriminate on the basis of race, color, religion, sex, or national origin, but also through practices that cause a disparate impact on one or more of those bases.57 for example, an employer who engages in an employment practice that is facially race-neutral but nonetheless produces a disproportionate adverse effect on a particular racial group could be in violation of title vii under a disparate impact claim. 49 id. 50 the use of criminal history records, supra note 3, at 17 (“it is noteworthy that a quarter of the schools that collect cji from applicants report that they do not use that information as a basis for denying admission. disclosure of a criminal record is more likely to trigger additional screening rather than automatic disqualification. sixty-one percent report that they consider criminal justice information in the admissions decision, while a quarter of the responding schools report that they have created at least some criminal justice-related automatic bar to admission.”) (emphasis added). 51 id. at 13. 52 the use of criminal history records, supra note 3, at 19 (“thirty-two percent of schools that consider criminal history information reported that they automatically deny admission to applicants who fail to disclose their criminal record and another 46 percent stated that they might deny admission.”). 53 id. at 17. 54 id. at 35 (“barring college admission in such cases is therefore tantamount to a policy of blanket denial. terms of supervision also vary depending on the nature of the criminal conviction.”). 55 42 u.s.c.a. § 2000d (west 1964). 56 42 u.s.c.a. § 2000e-2 (west 1964). 57 42 u.s.c.a. § 2000e-2(k) (west 1964). 2015 columbia journal of race and law 153 “recognizing the potential discriminatory consequences of pre-employment criminal background checks, the [eeoc] has had a longstanding position that criminal background check policies can have a disparate impact on racial minorities in violation of title vii.”58 the eeoc’s position is “that an employer's policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on blacks and hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.”59 that is, the eeoc holds that any such practice violates title vii unless there is a demonstrated business necessity justifying the practice.60 because the eeoc is not a regulatory agency, it relies on courts to enforce its guidelines as law, and so far, judges have been reluctant to find employers liable under title vii for using criminal history records to inform hiring decisions.61 the eeoc has brought a handful of title vii disparate impact claims against employers who rely on criminal justice information as part of their hiring processes, with mixed success.62 most recently, the united states district court for the district of maryland dismissed the eeoc’s action against an employer that engaged in this practice because the eeoc had failed to establish a prima facie disparate impact case.63 some courts have been willing to find liability under title vii in cases of employers discriminating on the basis of criminal justice system involvement, especially when employers impose flat bans on hiring people with criminal histories or when arrest records are relied upon.64 the eighth circuit notably took up the issue of absolute bans in the 1975 case of green v. missouri pacific railroad company and held “that appellant-green and all other blacks who have been summarily denied employment by mopac on the basis of conviction records have been discriminated against on the basis of race in violation of title vii and that the district court should enjoin mopac's practice of using convictions as an absolute bar to employment.”65 the leading case in the question of reliance on arrest records is gregory v. litton systems, holding that “any policy that disqualifies prospective employees because of having been arrested once, or more than once, discriminates in fact against [black] applicants.”66 b. disparate impact claims in higher education unlike title vii, which explicitly provides for disparate impact claims, title vi prohibits only intentional discrimination.67 but the doe has adopted regulations which prohibit practices that have the 58 concepción, supra note 2, at 239 (citing u.s. equal emp't opportunity comm'n, eeoc policy statement on the issue of conviction records under title vii of the civil rights act of 1964, as amended, 42 u.s.c. § 2000e et seq., available at http://www.eeoc.gov/policy/docs/convict1.html); u.s. equal emp't opportunity comm'n, policy guidance on the consideration of arrest records in employment decisions under title vii of the civil rights act of 1964, as amended, 42 u.s.c. § 2000(e) (1990), available at http://www.eeoc.gov/policy/docs/arrest_ records.html.) (hereinafter eeoc policy statement). 59 eeoc policy statement, supra note 58 (citing several eeoc decisions). 60 id. 61 newell, supra note 10. 62 see scott thurm, employment checks fuel race complaints, wall st. j., june 12, 2013, at a1. 63 eeoc v. freeman, 961 f. supp. 2d 783 (d. md. aug. 9, 2013) (“as the agency responsible for investigating possible violations of the act and enforcing anti-discrimination laws in the employment realm, the eeoc has brought this action against the defendant, freeman, alleging that it has implemented a hiring policy that, though facially neutral, has a discriminatory effect on african–american and male applicants.”) 64 newell, supra note 10, at 27; see also green v. missouri pac. r. co., 523 f.2d 1290 (8th cir. 1975); gregory v. litton sys., 316 f. supp. 401, 403 (c.d. cal. 1970), modified, 472 f.2d 631 (9th cir. 1972); carter v. gallagher, 452 f.2d 315 (8th cir. 1971) (holding that a conviction record cannot be an absolute bar to employment). 65 green, 523 f.2d at 1298-99. 66 gregory, 316 f. supp. at 403. 67 see alexander v. sandoval, 532 u.s. 275, 280 (2001). 154 bars to education vol. 5.2 “effect of” discriminating on the basis of race, color, or ethnicity.68 the supreme court has never taken up the question of whether title vi authorizes the doe to enforce such disparate impact regulations. in the landmark 2001 case alexander v. sandoval, the court held that private citizens may not bring disparate impact claims under title vi.69 the case had two major effects on civil rights litigation. first, it eliminated private right of action under title vi, meaning that only federal government agencies are permitted to bring claims under its provisions. second, it severely weakened disparate impact doctrine and strongly suggested that the court will continue to disfavor such claims, even when they are brought by government agencies such as the doe.70 some types of scholarship and admissions policies have however been subject to disparate impact claims brought by the doe. for example, courts have struck down the use of standardized tests as the sole basis for awarding scholarship funds when there is sufficient evidence that women or students of a particular race or national origin achieve lower scores on average than male or white students.71 in sharif by salahuddin v. new york state education department,72 the united states district court for the southern district of new york “held that the use of standardized test scores in determining eligibility for scholarships violates title ix if the use has a disparate impact on students of one sex and cannot be justified by educational necessity, regardless of whether the school system intended to discriminate against members of that sex.”73 the court applied a burden-shifting framework similar to that used in title vi cases (which will be discussed in part iii).74 more recently, the naacp legal defense and educational fund (naacp ldf) filed a complaint with the doe’s office for civil rights alleging that eight prestigious public high schools in new york city are violating title vi by basing their admissions decisions solely on eighth-grade students’ scores on a standardized achievement test.75 the complaint argues that the test has a disparate impact on black and latino applicants, who score lower on average than white and asian students, and are therefore admitted to the high schools at lower rates.76 the complaint further argues that the use of the test as the sole admission criterion is not justified by educational necessity because a student’s score on the test is not demonstrably predictive of their academic performance and success in high school.77 iv. a disparate impact claim under title vi of the civil rights act because people of color are overrepresented in the criminal justice system, colleges and universities that receive federal funding may be liable under title vi if they use criminal history records to inform admissions decisions, especially if they have policies that impose an absolute bar to admission or if they consider arrest records in their decisions.78 courts use a three-pronged burden-shifting framework to evaluate disparate 68 e.g., 34 c.f.r. § 100.3(b)(2) (dept. of education). 69 alexander, 532 u.s. 275. 70 john r. martin, school discipline and disparate impact, 13 engage 30, 31 (2012). 71 see elizabeth abimbola thomas, standardized testing, 3 geo. j. gender & l. 481 (2002). 72 sharif v. n.y. state educ. dep’t., 709 f. supp. 345 (s.d.n.y. 1989). 73 thomas, supra note 71, at 483. thomas further suggested that a “prima facie case under title ix [is] made when state scholarship board's sole reliance on scholastic aptitude test (sat) scores to award scholarships disparately impacted female applicants, who had disproportionately lower scores, and state could rely instead on a combination of grade point averages and sat scores, which achieved the same goal and was less discriminatory.” id. at 483 n.10 (citing sharif, 709 f. supp. at 361-62) (. 74 thomas, supra note 71, at 483. 75 letter from damon t. hewitt, the naacp legal defense and educational fund, to the office for civil rights, u.s. dep’t. of educ. (sept. 27, 2012) (on file with the naacp legal defense and educational fund). 76 id. at 9. 77 id. at 16. 78 see darby dickerson, background checks in the university admissions process: an overview of legal and policy considerations, 34 j.c. & u.l. 419, 456 (2008) (“background checks that include information related to arrests that did not lead to conviction have been shown to have a disparate impact on african americans”); id. at 465 (“colleges and universities should not ask for arrests that did not lead to conviction, other than arrests on pending charges, because using those records may lead to disparate impact claims based on race.”). 2015 columbia journal of race and law 155 impact claims.79 first, the plaintiff much establish a prima facie title vi disparate impact case by showing that the practice in question has a disproportionately adverse effect on a particular racial or ethnic group. 80 once the prima facie case is established, the burden shifts to the defendant, who must demonstrate that the policy is “required by educational necessity.”81 finally, if the defendant shows that the policy is justified by educational necessity, the defendant can still be liable under title vi if the plaintiff can show that there are alternative practices available that would serve that educational necessity with less of a racially disparate impact.82 a. the use of criminal histories in college admissions has a disproportionate adverse effect on black and latino applicants to establish a prima facie disparate impact case against reliance on criminal justice information in admissions proceedings under title vi, the doe would need sufficient data showing that the use of criminal histories in college admissions has a disproportionate adverse effect on certain applicants of color. there is no “rigid mathematical threshold” for meeting this requirement.83 federal courts use “one of several forms of statistical analysis to reach reliable inferences about racial disparities in a population based on the performance of a particular sample,”84 such as the “four-fifths” test borrowed from the employment discrimination context. under the four-fifths test, evidence demonstrating that the selection rate for any minority group is less than four-fifths, or eighty percent, of the selection rate for the group with the highest rate is evidence of adverse impact.85 in the employment context, courts have required that a plaintiff provide sufficient evidence that the employer’s policy of using criminal history records to inform hiring decisions does in fact have a disparate impact on racial minorities.86 some courts further require that the plaintiff show that there is a causal link between the employer’s policy and the racial disparity.87 in eeoc v. freeman, the court held that national statistics alone could not prove disparate impact, and that the eeoc needed to isolate a specific employment practice that had caused the alleged disparate impact.88 79 wards cove packing co. v. atonio, 490 u.s. 642 (1989). 80 id.; see also larry p. v. riles 793 f.2d 969, 982 (9th cir. 1984); u.s. dep’t of justice, title vi legal manual 49– 50 (2001). 81 larry p., 793 f.2d at 982 & nn. 9-10. 82 see elston v. talladega cnty. bd. of educ., 997 f.2d 1394, 1407 (11th cir. 1993); u.s. dep’t of justice, supra note 80. 83 groves v. alabama state bd. of educ., 776 f. supp. 1518, 1526 (m.d. ala. 1991) (citing watson v. fort worth bank & trust, 487 u.s. 977, 994-95 (1988) (plurality)). 84 id. at 1527. 85 id. at 1526-27. 86 colleen k. sanson, cause of action for violation of title vii resulting from unlawful criminal background checks, 58 causes of action 2d 567 (2013) (“the court in fletcher held that the plaintiff failed to make the requisite showing. the plaintiff did not offer sufficient evidence that his employer's alleged policy of terminating employees who had been convicted of sex offenses had a disparate impact on minorities. therefore, the court granted the employer's motion for summary judgment . . . . this case illustrates the importance of proof of a policy's disparate impact to prevail on a disparate impact claim.”) (internal citations omitted); fletcher v. berkowitz oliver williams shaw & eisenbrandt, llp, 537 f. supp. 2d 1028 (w.d. mo. 2008). 87 sanson, supra note 86 (“for example, in foxworth v. pennsylvania state police, the plaintiff admitted on his application to be a police officer that, when he was 18, he had stolen money from his former employer. because he was a first-time offender, the charges were dismissed and his criminal record was expunged after he successfully completed probation. however, the defendant applied its policy of automatically rejecting applicants who were involved in any criminal activity and did not offer him a position . . . . the plaintiff alleged that the policy violated title vii and offered statistical evidence that the defendant's employment of minorities had declined since the inception of the policy. the court noted that the plaintiff failed to demonstrate that the policy caused the decline in the employment of minorities. based in part on this lack of evidence, the court granted the employer's motion for summary judgment . . . . this case reveals the need for evidence of a causal link between the challenged policy and a disparity between the employment of minorities and non-minorities.”); foxworth v. pennsylvania state police, 402 f. supp. 2d 523 (e.d. pa. 2005). 88 freeman, 961 f. supp. 2d at, 798-99. 156 bars to education vol. 5.2 one relevant inquiry involves examining the applicants that a given university denies on the basis of criminal history. if the pool of denied applicants contains significantly more black or latino applicants than white ones, then some courts may treat that data as evidence of a racial disparity in admissions caused by reliance on criminal histories. this analysis would isolate the consideration of criminal histories as the relevant factor in the admissions decisions, potentially satisfying the standard in eeoc v. freeman.89 given the welldocumented racial disparities in arrest, conviction, and incarceration rates, it is likely that a racial disparity exists in the pool of college applicants denied admission on the basis of criminal history.90 additionally, some data suggest that consideration of criminal histories in admissions decisions exacerbates the racial disparities in higher education already caused by ex-offenders’ ineligibility for or difficulty obtaining pell grants: a gao report determined that about 20,000 students each year were denied pell grants and 30,000-40,000 lost out on student loans because of this federal law. wheelock and uggen concluded, “relative to whites, racial and ethnic minorities are significantly more likely to be convicted of disqualifying drug offenses . . . and significantly more likely to require a pell grant to attend college. . . . it is therefore plausible that tens of thousands have been denied college funding solely on the basis of their conviction status.” thus, while screening of prospective college applicants for criminal records may appear to be race neutral, the racial disparities in the criminal justice system means this practice has the potential of having significant racially exclusionary effects.91 it may be easier to establish a prima facie case in the admissions context if the issue is narrowed to the use of arrest records to inform admissions decisions. courts have been willing to find that reliance on arrest records alone necessarily results in unintentional racial discrimination.92 further, arrest records are not reliable evidence of criminal behavior because “[u]nlike conviction records, which ‘constitute reliable evidence that a person engaged in the conduct alleged since the criminal justice system required the highest degree of proof (“beyond a reasonable doubt”) for a conviction . . . arrests alone are not reliable evidence that a person has actually committed a crime.’”93 by considering race as a relevant factor in admissions proceedings, schools may be remedying the adverse racial effects of considering criminal history in admissions proceedings—intentionally 89 freeman, 961 f. supp. 2d. 783 (holding that the eeoc needed to isolate a specific employment practice that had caused the alleged disparate impact). 90 for example, in the first admissions cycle (fall 2006) in which the university of north carolina employed its systemwide practice of conducting background checks on applicants whose applications raised red flags, 101 applicants were denied admission specifically because of the background checks. mary beth marklein, an idea whose time has come?: schools increasingly subjecting applicants to background checks, usa today, apr. 18, 2007, at 7d. it would likely be a relatively simple task to make an inquiry into the racial makeup of those 101 applicants and those similarly denied because of criminal history information in subsequent admissions cycles. 91 the use of criminal history records, supra note 3, at 26 n.7 (“the use of a criminal record has already had an impact on the ability of low income students, many of whom are students of color, to get a college education. until 2006, section 484, subsection (r) of the 1998 amendments to the higher education act of 1965 denied or delayed eligibility for financial aid to people with drug convictions.”). 92 see, e.g., gregory, 316 f. supp. at 403. 93 concepción, supra note 2, at 241 (citing schware v. board of bar examiners, 353 u.s. 232, 241 (1957)) (“the mere fact that a [person] has been arrested has very little, if any, probative value in showing that he has engaged in misconduct.”)). 2015 columbia journal of race and law 157 or unintentionally.94 the status of affirmative action in higher education is in a precarious state, with the supreme court weakening its earlier jurisprudence in the cases of fisher v. university of texas and schuette v. coalition to defend affirmative action.95 schuette in particular poses a threat to affirmative action by constitutionally allowing states to prohibit its practice. if these race-based remedial policies are systematically eliminated in higher education, the racial effects of relying on applicants’ criminal justice information to inform admissions decisions could become more measurably problematic. b. the use of criminal histories in college admissions is not an educational necessity assuming that a prima facie case is established, colleges and universities that receive federal funds and use criminal history records in admissions proceedings would need to demonstrate that the practice is “required by educational necessity.”96 courts have broad discretion in defining the stringency of this requirement, “from a heightened deference to educational policy choices to virtually no deference to such policies.”97 in the context of reliance on standardized tests for admissions decisions, some courts have held that there must be a “manifest relationship” between the practice and the educational goal,98 but at least one has held that a defendant fails to establish educational necessity “only if the evidence reflects that the test falls so far below acceptable and reasonable minimum standards that the test could not be reasonably understood to do what it purports to do.”99 the purported educational goal of screening applicants’ criminal histories is to improve campus safety.100 college campuses are generally very safe places, but a handful of high-profile, violent crimes has generated great concern about campus safety among parents and administrators. since 1991, colleges and universities are required to track and report campus crime statistics under the crime awareness and campus security act,101 commonly known as the clery act. the clery act was named after the victim of a brutal crime committed at lehigh university.102 the virginia tech campus shooting also contributed to the safety-based justification for screening applicants for criminal histories.103 94 affirmative action policies are those that seek to remedy the effects of past or current discrimination against a particular group, usually racial minorities or women. affirmative action’s primary purpose is anti-subordination, but it also is often presented as a means of promoting diversity in employment and education. 95 fisher v. univ. of tex. at austin, 133 s. ct. 2411 (2013) (vacating and remanding lower court’s ruling in favor of the university on the grounds that lower court did not determine that the program in question was narrowly tailored to a compelling state interest); schuette v. coal. to defend affirmative action, 134 s. ct. 1623 (2014) (holding that states may legally prohibit affirmative action in public education, employment, and contracting). 96 larry p., 793 f.2d at 982 & nn. 9-10. 97 jennifer c. braceras, killing the messenger: the misuse of disparate impact theory to challenge high-stakes educational tests, 55 vand. l. rev. 1111, 1193 (2002). 98 see, e.g., ga. state conference branches of naacp v. georgia, 775 f.2d 1403, 1418 (11th cir. 1985) (requiring a “manifest demonstrable relationship” between the practice and the educational goal); larry p., 793 f.2d at 982 n.9 (holding that test must bear a “manifest relationship” to the educational goal); sharif, 709 f. supp. at 362 (s.d.n.y. 1989) (requiring a “manifest relationship” between the challenged practice and the educational goal). 99 richardson v. lamar cnty. bd. of educ., 729 f. supp. 806, 822-23, 825 (m.d. ala. 1989) (holding that alabama's teacher certification test was not educationally necessary under title vii because it failed to measure that which it claimed to measure). 100 the use of criminal history records, supra note 3. 101 jeanne clery disclosure of campus security policy and campus crime statistics act, 20 u.s.c. § 1092(f) (1991) (hereinafter clery act). 102 the use of criminal history records, supra note 3, at 5. 103 id. at 3. the virginia tech massacre was a shooting that took place on april 16, 2007 when a student shot and killed thirty-two people and wounded seventeen others before committing suicide. 158 bars to education vol. 5.2 despite these fears, there is no evidence that screening applicants’ criminal history records reduces campus crime or improves campus safety.104 no study has established a link between having a criminal record and being more likely to commit crimes on campus.105 only one study has explored the correlation between criminal history screening and improved campus safety across multiple institutions, and the results revealed no connection between the two.106 clery act reports indicate that college campuses are generally very safe places, and any crimes committed on campus are more likely to involve students with no criminal records.107 in fact, both the clery murder and the virginia tech massacre were perpetrated by students who had no criminal records when they were admitted.108 the few college students who are victims of violent crimes are most often victimized off campus by strangers,109 and inebriated students with no prior criminal records most often commit on-campus rapes and sexual assaults.110 reverend vivian nixon, of college and community fellowship, claims, “the truth is that the person who chooses to enroll in school after incarceration is the least likely person to commit a crime on campus.”111 following two on-campus student murders, a study at the university of north carolina explored the extent to which students with criminal records commit crimes on campus and found that of all students involved in crime, only four percent had prior criminal records.112 moreover, most research and media reports on violent campus crimes contain no mention of criminal records, which suggests that students with criminal histories do not pose a particular threat to the rest of the student body.113 the logic of viewing applicants with criminal 104 the use of criminal history records, supra note 3. 105 id. at 32. 106 id. at 6; malgorzata j. v. olszewska, undergraduate admission application as a campus crime mitigation measure: disclosure of applicants’ disciplinary background information and its relation to campus crime (2007) (unpublished dissertation for the degree of doctor of education, east carolina university) (finding no statistically significant difference in the rate of campus crime between higher education institutions that collect and use applicants’ disciplinary background information and those that do not). 107 the use of criminal history records, supra note 3, at 5. 108 id. 109 id. 110 id. (“according to the u.s. department of education the overall rate of criminal homicide at colleges and universities was .07 per 100,000 students compared to a rate of 14.1 per 100,000 young adults in society-at-large. this means that college students are 200 times less likely to be the victim of a homicide than their non-student counterparts. rape and sexual assault are the only crimes showing no statistical differences between college students and non-students; these crimes are most often committed at campus parties by inebriated students who have no prior criminal records. the u.s. department of education concluded that ‘students on the campuses of post-secondary institutions [are] significantly safer than the nation as a whole.’”) (internal citations omitted); closing the doors to higher education, supra note 3, at 3 (“an examination of crimes committed on campus as reported by the u.s. department of education reveals behaviors that have long characterized the college environment. the majority of crimes are related to alcohol and druguse, either simple violations of use of substances or other crimes that have been associated with inebriation, including what the american college health association (acha) has termed ‘celebratory violence’ (i.e., rioting after school sports events). serious crimes have also been associated with alcohol abuse. the combination of alcohol abuse and hazing has resulted in serious injury or death. alcohol abuse figures prominently in sexual assault and gang rape, where the perpetrators are often members of a fraternity or a sports organization.”) (citations omitted). 111 center for community alternatives, supra note 1. 112 closing the doors to higher education, supra note 3, at 3 (“the task force on the safety of the campus community (2004) found that the unc campuses were very safe, with a crime rate for unc campuses only one-sixth of the statewide crime rate. between july 1, 2001 and june 30, 2004, unc campuses with an overall enrollment of 250,000 reported a total of 1,086 campus crimes. forty-nine percent (49%) or 532 of these crimes were committed by a student. of the students who were involved in crime, only 21 or 4 percent were students who had a prior criminal record.”). 113 id. (“bromley conducted a content analysis of articles that appeared in the chronicle of higher education between 1989 and 2001 covering 33 campus related murders. while the articles reported on the circumstances of the crime and victim and perpetrator characteristics such as gender, campus status (e.g., employee, student, faculty, visitors), the criminal record of the perpetrator was not mentioned. given the media’s predilection for highlighting an offender’s criminal record when such is present, the absence of such information suggests that a past criminal history was not a 2015 columbia journal of race and law 159 records as particular threats to campus safety becomes even more suspect in cases of applicants who were arrested or committed crimes as teenagers. the “vast majority of [teenagers who commit crimes] will be onetime offenders.”114 even the supreme court has acknowledged that teenagers are particularly prone to reckless or criminal behavior, and that behavior is not predictive of future misconduct.115 many advocates argue that accepting college applicants with criminal records actually promotes public safety by reducing recidivism and unemployment through increased higher education opportunities. 116 formerly-incarcerated students are typically hard-working and high-achieving, with higher overall graduation rates than their peers with no criminal justice system involvement.117 a related argument is that denying admission to applicants with criminal records is in conflict with public educational institutions’ missions, which typically include providing broad access to educational opportunities, commonly understood to reflect a commitment to serving low-income communities of color.118 additionally, criminal records are often inaccurate or misleading, 119 so they are not reliable representations of an applicant’s personal character or history. the records frequently contain errors and sometimes report irrelevant arrest records or outdated convictions that have been expunged from the person’s relevant factor for crime on campus.”) (citing max l. bromley, campus-related murders: a content analysis review of news articles (2005)). 114 center for community alternatives, supra note 1 (claiming that teenage brains are more prone to risk and sociallymotivated behaviors, so they tend to “age out” of criminal activity). 115 roper v. simmons, 543 u.s. 551, 570 (2005) (“the reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.”). 116 the use of criminal history records, supra note 3, at 30 (“there are larger social benefits associated with increases in higher education ranging from the expansion of knowledge to helping people become better parents, more informed voters and more engaged citizens. colleges and universities promote public safety in the larger community when they open their doors to people with criminal records who demonstrate the commitment and qualifications to pursue a college education.”) (citation omitted). 117 center for community alternatives, supra note 1 (“it’s understandable that people who have no exposure to this issue, other than what they see in the media, would be afraid. if you, however, work with and study the dynamics that actually occur when formerly incarcerated people enter an institution, you get an entirely different picture . . . these are the most motivated students. they have the most to lose and the most to gain.”). 118 id. 119 the use of criminal history records, supra note 3, at ii (“the u.s. department of justice, bureau of justice statistics has found that ‘inadequacies in the accuracy and completeness of criminal history records is the single most serious deficiency affecting the nation’s criminal history record information systems’ and that ‘[m]any of the criminal history records currently circulated by the repositories are difficult to decipher, particularly by noncriminal justice users and out-of-state users.’”). 160 bars to education vol. 5.2 history.120 errors can include over-reporting,121 records based on criminal identify theft,122 reports containing expunged records, and clerical errors. campus safety is not the only justification universities could present to satisfy the educational necessity prong. universities also need to protect their reputations and protect themselves from lawsuits in the rare instances when students commit violent acts against other students on campus, especially when the perpetrators do in fact have criminal records.123 in 2004, jessica faulkner, a freshman at the university of north carolina at wilmington was drugged, raped, and killed by a fellow student, curtis dixon, who had a history of committing violent crimes against women.124 only one month later, another student, christen naujoks, was shot and killed by john peck, another student who also had a criminal record.125 unc wilmington did not conduct criminal background checks on either dixon or peck, and neither had disclosed their criminal history.126 faulkner’s father sued unc wilmington, claiming that the university was negligent to admit dixon, given his history of violence against women.127 following the murders, the university created a safety task force to study the issue of crime and admissions and, drawing on the task force’s recommendations, adopted a system of conducting background checks on all applicants whose applications “raise red flags.”128 120 see concepción, supra note 2, at 246-47 (“for an instrument that has been afforded such weight, criminal history records are notoriously inaccurate and may include errors sufficiently serious to warrant denial of employment.”) (citing craig winston, nat'l. ass'n. prof'l. background screeners, the national crime information center: a review and evaluation 6-7 (2005), available at http://www.reentry.net/search/attachment.74268 (“though ‘all states report arrest and charge information, there is some variation in the reporting laws . . . [o]f the 174 million arrest cycles on file only 45% have dispositions . . . . [o]nly 31 states require updated information to be sent to the state's repository if a person is not charged after the individual has been arrested and their fingerprints have been submitted . . . . a second issue related to accuracy and content is the lack of uniformity in the criminal codes of the various states.”); id. at 247 n.134 (“in 2008, an abc news investigation uncovered ‘dozens of lawsuits, on behalf of hundreds of people, filed in the last two years, against the major criminal records database companies, alleging that background checks contain inaccurate information about criminal convictions.’”); scott michels, advocates complain of background check errors: dozens of lawsuits claim lost jobs from inaccurate criminal records, abc news (oct. 13, 2008), http://abcnews.go.com/thelaw/story? id=6017227&page=1.). 121 id. at 247 (“i.e., when a record about a different person with the same name as the applicant is reported as being a potential match for the applicant.”) (citing eric dunn & marina grabchuk, background checks and social effects: contemporary residential tenant-screening problems in washington state, 9 seattle j. for soc. just. 319 (2010).). 122 id. (“i.e., where an actual arrestee gives a false name or claims to be another actual person.”). 123 marklein, supra note 90; see also larry r. wood, jr. & brian a. berkley, criminal conviction background checks: can employers avoid discrimination and liability in the hiring process, 05-3 privacy & data sec. (2006) (“several courts have recognized that an employer can be liable for failing to run a criminal background check when hiring an employee who later commits a tortious act.”) (citing blair v. defender services, inc., 386 f.3d 623, 629 (4th cir. 2004); keibler v. cramer, 36 pa. d. & c. 4th 193, 196-97 (1998)). 124 dickerson, supra note 78, at 435. 125 id. 126 id. 127 id. 128 id. at 436-39 (“the task force also recommended that the unc system ‘[d]evelop reasonable and cost-effective methods to verify completeness and accuracy of applicant information.’ before a student enrolls, campus officials should ‘compare applicants against the unc expulsion/suspension database’ and ‘compare applicants against the national student clearinghouse and/or a system-wide enrollment-history database to determine if the student has attended other educational institutions that were not listed on the application.’ in addition, schools should request ‘long-term secondary-school suspensions and expulsions on transcripts or on transcript supplements’ and ‘[r]equest that the north carolina community college system . . . report campus-based reported crimes and non-academic suspensions and expulsions on transcripts or on transcript supplements.’ on a related point, the task force urged the university to develop a ‘concise, behavior-related checklist that would help screen students for further scrutiny’ and ‘a mechanism through which campuses could request, on a case-by-case basis, criminal background checks of applicants, admitted students, and/or enrolling students.’ finally, the task force concluded that given the extremely small number of students who failed to provide accurate and truthful information [about criminal histories] and went on to commit a campus crime, the widespread and routine use of criminal background checks on all students would be neither cost-effective nor 2015 columbia journal of race and law 161 courts generally afford a large amount of deference to higher education institutions in identifying educational goals and determining how to achieve them.129 a judge who is deferent to a university’s decisions may not inquire into the effectiveness of screening applicants for criminal histories in increasing campus safety and instead may simply take the university at its word that the practice qualified as an educational necessity. in his fisher opinion, however, justice kennedy held that the lower court had erred in not making a factual determination of whether the university of texas’s affirmative action plan was narrowly tailored,130 specifying that the university “receives no deference” in this means analysis.131 this lack of deference appears to be a departure from previous affirmative action jurisprudence. 132 if fisher represents a broad weakening of universities’ freedom to determine the appropriateness of certain measures that may have adverse racial effects, then it would be relatively easy for a fact-finder to determine that, based on the empirical data, discriminating against applicants with criminal records is not an appropriate means of improving campus safety. c. there are alternative practices that would be more effective in promoting campus safety and have less of a racially disparate impact even if the schools could successfully show that their use of criminal history records in admissions proceedings serves an educational necessity, they can still be liable under title vi if there are alternative practices available that would be equally effective in improving campus safety and have less of a racial disparate impact.133 because considering criminal histories, and even disciplinary histories in general, in admissions decisions does not have a proven effect on improving campus safety,134 identifying equally or more effective alternative methods with less racial impact should be achievable: sensible and proven measures to increase campus safety include education and discussion among students on campus about excessive use of alcohol, education about what constitutes healthy and consensual sexual relationships, campus-wide responses to hate crimes, and making changes to the physical environment of a college such as improving security in dormitories. barring significantly improve safety. however, there are specific ‘triggers’ that can be identified and that do warrant the need for a more thorough background check, e.g., an unexplained gap in time between high school graduation and application for admission.”); jennifer epstein, colleges consider background checks on applicants, usa today, http://usatoday30.usatoday.com/news/education/2010-07-01-ihe-college-applicants-criminal-backgroundchecks01_st_n.htm?csp=34 (july 1, 2010, 7:21 pm). 129 see generally grutter v. bollinger, 539 u.s. 306 (2003). 130 under the equal protection clause of the fourteenth amendment, any policy that differentiates on the basis of race, including an admissions program that uses racial categories, must be narrowly tailored to achieve a compelling state interest. id. 131 fisher, 133 s. ct. at 2414 (“once the university has established that its goal of diversity is consistent with strict scrutiny, the university must prove that the means it chose to attain that diversity are narrowly tailored to its goal. on this point, the university receives no deference.”). 132 grutter, 539 u.s. at 328 (“our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits.”); regents of univ. of mich. v. ewing, 474 u.s. 214, 226 (1985) (“added to our concern for lack of standards is a reluctance to trench on the prerogatives of state and local educational institutions and our responsibility to safeguard their academic freedom, ‘a special concern of the first amendment.’ if a ‘federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies,’ far less is it suited to evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public educational institutions—decisions that require ‘an expert evaluation of cumulative information and [are] not readily adapted to the procedural tools of judicial or administrative decisionmaking.’”) (internal citations omitted). 133 elston, 997 f.2d at 1407; u.s. dep’t. of justice, supra note 80, at 53. 134 see olszewska, supra note 106; see also the use of criminal history records, supra note 3. 162 bars to education vol. 5.2 people with criminal records from attending college does not improve campus safety, but does undermine public safety in the larger community.135 another approach to identifying alternative methods of promoting campus safety is to encourage universities to tailor their use of criminal histories, emphasize individualized review of applications, and develop deliberate policies for implementation. of the schools that reported collecting and using criminal history records in admissions proceedings in response to the survey distributed by the center for community alternatives, fewer than half reported that they had written policies in place specifying how the information should be used, and only forty percent reported that they trained their staff on how to interpret the information.136 universities that have automatic bars in place for certain types of criminal justice information or are indelicate or inconsistent in their implementation of their policies should alter their approach to reduce the racially disparate impact. v. alternative solutions even if this practice cannot be effectively litigated in court under federal law, the policy arguments raised against it should help to persuade educational institutions and state legislatures of the importance of curbing or abolishing reliance on criminal history information in admissions decisions. in fact, the new york state legislature currently has bills pending in both its houses that would “require colleges to judge an applicant on academic merit and other normal criteria and ask about run-ins with the law later.”137 in october of 2014, new york attorney general eric t. schneiderman announced agreements with st. john’s university, dowling college, and five towns college “to amend their admissions policies and practices with respect to applicants’ prior contact with law enforcement. . . . [to] ensure that each school will refrain from inquiring about irrelevant information regarding contacts with the criminal justice system, including arrests that did not lead to conviction, sealed or expunged records, or pardoned records.”138 the agreement was reached after the attorney general’s civil rights bureau reviewed information from the center for community alternatives and determined that “the information solicited by the schools was overbroad and not relevant to an applicant’s fitness as a student because it did not indicate that the applicant had committed any crime.”139 135 id. at 42. 136 id. at 16. 137 editorial, a chance at college for ex-offenders, n.y. times, sept. 21, 2014, available at http://www.nytimes.com/2014/09/22/opinion/a-chance-at-college-for-ex-offenders.html (“a good first step would be to remove the question from the initial college application and ask it after the applicant has been given a conditional offer of acceptance. (this would ensure that people with criminal histories are evaluated based on the same criteria as others.) beyond that, however, colleges should not require disclosure of youthful misdemeanors like underage drinking or fare beating, which present no danger to public safety. and they should give students an opportunity to show proof of rehabilitation, like letters of recommendation, evidence of community service and so on.”). 138 press release, attorney general eric t. schneiderman, a.g. schneiderman announces agreements with three higher-education institutions that will help eliminate barriers to learning (oct. 27, 2014), available at http://www.ag.ny.gov/press-release/ag-schneiderman-announces-agreements-three-higher-education-institutions-willhelp. 139 id. (“such questions disproportionately disadvantaged african-american and hispanic men, who are more likely than white men to be stopped, detained, and arrested by police for minor misconduct. nationally, racial and ethnic disparities in stops, detentions, and arrest rates remain substantial. in 2009, african-american males were incarcerated in state and federal prisons at close to 6.5 times the rate of non-hispanic white males, and hispanic males at 2.4 times the rate of non-hispanic whites. disqualifying college applicants based solely on information regarding stops, detentions, or other contact with the criminal justice system is inconsistent with new york state law, which bars employers from categorically denying job opportunities to candidates on the basis of a criminal conviction, and inconsistent with the state’s public policy of encouraging the employment and licensure of individuals with criminal records. the agreements also ensure that admissions staff will be properly trained in how to inquire about and evaluate criminal convictions for relevancy. going forward, each school will consider prior convictions only to the extent that they are relevant to public safety or some aspect of the institution’s academic program.”). 2015 columbia journal of race and law 163 while these measures indicate increased willingness to promote the interests of the people with criminal histories, the center for community alternatives recommends that colleges and universities completely refrain from collecting and using criminal justice information in admissions decisions.140 the center also provides a number of secondary recommendations to mitigate the negative effects for universities that are unwilling or unable to end the use of criminal justice information completely. 141 these secondary recommendations include (1) removing the criminal justice involvement disclosure requirement from the initial application for admission (as the new york bills propose);142 (2) limiting the disclosure requirement to certain types of convictions;143 establishing admissions criteria that are fair and evidence-based;144 basing admissions decisions on assessments that are well-informed and unbiased;145 establishing procedures that are transparent and consistent with due process;146 offering support and advocacy;147 and evaluating the policy periodically to determine whether it is justified.148 vi. conclusion today, we have found mechanisms to filter out those who, because of their prison experience, might be most desiring of changing their lives and of quality education. and that's a tragedy. but it's one that we can fix. —khalil muhammad 140 the use of criminal history records, supra note 3, at 32 (“almost 40 percent of the colleges and universities surveyed do not use cji in their application process and there was no indication from the survey results or other data that those campuses are any less safe than those that do use cji. this is not surprising given what we know about the lack of any demonstrable link between campus safety and students with criminal records. there is no evidence that screening for criminal histories increases campus safety, nor is there any evidence suggesting that students with criminal records commit crimes on campus in any way or rate that differs from students without criminal records. there is, however, considerable evidence that using cji as part of the college admissions screening process will disproportionately impact young men and women of color. there is also evidence that obtaining a college education greatly reduces the likelihood of recidivism and improves a range of life outcomes from employment, to health and mental health functioning. because broad access to higher education is good for public safety and the economic growth and well-being of the country as a whole, colleges and universities should refrain from engaging in cji screening.”). 141 id. at 33. 142 id. (“limiting cji inquiries to applicants who have been admitted ensures that those with records are considered for admission under the same criteria as all other applicants. it also reduces the likelihood that qualified and deserving individuals with criminal records will be discouraged from applying.”). 143 id. at 34 (“only convictions for felonies, not misdemeanors or infractions . . . . only felony convictions imposed within the past five years . . . . only convictions for felonies that were committed after the individual’s nineteenth birthday.”). 144 id. at 35, 36 (“remove barriers to admission of individuals who are under some form of community supervision . . . . avoid policies that impose blanket denials for particular crimes . . . . provide an opportunity to document personal growth and rehabilitation . . . . avoid requiring applicant to produce his ‘official’ criminal history record information.”). 145 id. at 36, 37 (“develop in-house expertise . . . . perform an assessment and multi-factor analysis to determine whether a past criminal offense justifies rejection . . . . failure to disclose should not be the grounds for automatic rescission of an offer of admission or expulsion.”). 146 id. at 38 (“inform students of the reason for the withdrawal of an offer of admission . . . . applicants should be afforded the right of appeal.”). 147 id. at 38 (“provide on-campus support services for students who have criminal records . . . . provide information and assistance when a prospective student’s chosen field bars individuals with criminal records.”). 148 id. at 40 (“colleges and universities that screen for criminal records should begin to collect the data necessary to analyze whether students with a prior criminal record are any more likely to commit a criminal offense when enrolled as a student than their counterparts who do not have criminal records. there are no existing empirical data indicating that a campus is made safer by criminal history screening. if screening does not, in fact, help in the prediction of increased rates of criminal behavior, then it serves little purpose. it is both unfair and unwise to continue to screen for criminal records if it does not serve any legitimate purpose and may have adverse impact.”). 164 bars to education vol. 5.2 director, schomburg center for research in black culture149 the constraints of title vi jurisprudence allow only for narrow challenges to the practice of using criminal histories to inform admissions decisions, if anything. if a disparate impact claim is feasible, it hinges on the degree of racial disparity created by these policies. greater disparities may be present in cases in which universities rely on arrest records, or in cases in which universities impose automatic bars to admission for certain types of criminal justice involvement.150 this note has enumerated strong policy considerations supporting the end of the use of criminal history information in college admissions decisions. first, the undeniable racial disparities in the criminal justice system reflect a history rife with racial subjugation perpetuated by mass incarceration.151 second, improving access to higher education for people with criminal justice histories promotes community wellbeing by reducing recidivism, allowing individuals access to higher-paying employment opportunities, and strengthening community services through the disproportionate involvement of formerly-incarcerated individuals in human service jobs.152 finally, allowing people with criminal justice involvement to be engaged in higher education promotes diversity, improves understanding about issues of mass incarceration, and furthers universities’ missions of inclusiveness and commitment to underserved communities.153 the center for community alternatives emphasizes the importance of treating this discrimination as a civil rights issue: [b]ecause of the enormous racial disparities found at every stage of the country’s criminal justice system, policies and practices that exclude people with criminal records from institutions of higher learning are a setback to the gains earned through the long and arduous struggle of civil rights activists to open higher education to all people, regardless of race or ethnicity.154 tolerating discrimination against people with criminal justice histories in higher education, employment, housing, or any other context perpetuates racial injustice by allowing the effects of the raciallycharged mass incarceration mechanism to seep into every aspect of society. until the criminal justice system itself can be reformed to correct this injustice, advocates must eliminate and alleviate discriminatory practices where they can. 149 center for community alternatives, supra note 1. 150 see part iv, section a. 151 see part iii. 152 center for community alternatives, supra note 1. 153 see part iv, section b. 154 id. at 42. microsoft word 6.2 sidebarakpan (author approval).doc 2016 columbia journal of race and law sidebar 1 case comment: adoptive couple v. baby girl, 133 s. ct. 2552 (2013) anietie maureen-ann akpan* this comment discusses the 2013 united states supreme court case of adoptive couple v. baby girl, which involved an unwed cherokee father’s (petitioner) journey to regaining custody of his child, after erroneously granting consent of the child’s adoption to a non-indian couple. this comment further discusses the issues that arise within transracial adoptions, including “cultural authenticity” of adoptive parents and the significance of providing cultural outlets for a transracial adopted child. this comment will also address the lack of constitutional protection for unwed fathers in family cases, specifically the “sub-class” of unwed fathers to which the petitioner belongs. generally, this comment examines the intersectionality of race relations, racial identity and how society has become socialized to view fathers against mothers. i. introduction ................................................................................................. 1 ii. summary of case ............................................................................................ 3 a. south carolina supreme court decision .............................................. 3 b. united states supreme court decision ................................................ 5 iii. discussion ....................................................................................................... 6 a. narrow interpretation of “parent” ....................................................... 6 b. narrow understanding of icwa’s purpose ......................................... 7 c. larger sociological view of fathers v. mothers ................................. 10 iv. conclusion ................................................................................................... 12 i. introduction “[t]here is no resource that is more vital to the continued existence and integrity of indian tribes than their children.”1 * first-year associate at sinoski & associates, pllc, a family law firm in houston, texas; j.d. 2013, st. mary’s university school of law. the author is greatly indebted to the editorial board and staff of the columbia journal of race and law for their careful editing and excellent suggestions. the author’s use of the term “american indian” in this article (as opposed to “native american”) to describe the indigenous peoples of the united states is deliberate. the over-used “native american” label is viewed through a more pejorative filter, as it reflects the dark history of forced assimilation of the indigenous people. it was an oppressive, counterfeit identification “assigned” to that community during colonization, and thus is a term that exemplifies the repression of the indigenous autonomy. the author understands that “american indian” is a more widely accepted term by various tribal members within the indigenous community. please note that this assertion is based only on the author’s own personal research on the terminology preference of indigenous peoples. the author also recognizes the immutable impact her racial privilege as a nonindigenous individual has on her viewpoint and analysis on this particular subject. 1 indian child welfare act, 25 u.s.c. §1901(3) (2016). 2 case comment: adoptive couple v. baby girl, 133 s. ct. 2552 (2013) vol. 6:2 what is a “family?” there is a rich and complex history of the united states supreme court’s discourse on this particular question. its past treatment of the liberty of familial relationships has varied from the privileges a parent is constitutionally afforded to exert over their child,2 to discussing the visitation and custody rights of grandparents.3 ultimately, the underlying message is that the right to private and family life is rooted in a relatively fundamental doctrinal basis that comports with the united states constitution.4 it has grown increasingly evident over the past several years that the social landscape of the united states has exponentially evolved, specifically in reference to how the family unit is defined. there are families with single parents, children raised by older siblings, and, at present, there are also recent developments regarding the rights of same-sex couples to build their family units.5 the experiences of adoptive families, especially cross-cultural adoptive families, have greatly enriched this dialogue of the ever-evolving family household. there are approximately two million adopted children in the united states, of which nearly seventeen percent are adopted into cross-cultural families.6 cross-cultural, cross-border and transracial adoptions have increased dramatically over the past twenty years.7 adoptive couple v. baby girl brought the complex intersectionality of child custody laws and race relations to a national stage,8 causing lines to be drawn in the sand between grassroots american indian rights activists supporting tribal law against the justices of the united states supreme court and their interpretation of tribal law. in reaching its holding, the court goes beyond a surface discussion of the adoption system, centering its analysis on the statutory definition of a “parent” and whether petitioner, the non-custodial biological father, had standing to object to baby girl’s adoption. this case highlighted the need for a closer examination on how the law dictating cross-cultural adoptions and parent-child relationships in the american indian community are managed. this case also 2 planned parenthood v. danforth, 428 u.s. 52, 72 (1976) (discussing a parent’s right to veto a child’s right to have an abortion); parham v. j. r., 442 u.s. 584, 603 (1979) (addressing the parental role in committing a child for treatment of mental illness). 3 troxel v. granville, 530 u.s. 57, 78 (2000) (souter, j., concurrence). 4 courts have purported that the u.s. constitution “protects the sanctity of the family precisely because the institutionof the family is deeply rooted in the nation’s history and tradition.” moore v. city of e. cleveland, 431 u.s. 494, 503 (1977). see skinner v. state of oklahoma, 316 u.s. 535, 541 (1942) (discussing how the integrity of the family unit is rooted in protection afforded by the equal protection clause of the fourteenth amendment); griswold v. connecticut, 381 u.s. 479, 496 (1965) (discussing how the integrity of the family unit is also afforded protection by the ninth amendment) (goldberg, j., concurrence). 5 baskin v. bogan, 766 f.3d 648, 656–57 (7th cir. 2014); see u.s. v. windsor, 133 s.ct. 2675, 2693–94 (2014) (noting the denial of spousal deduction to the surviving spouse of a same-sex couple); see generally obergefell v. hodges, 135 s.ct. 1732 (2015) (discussing the constitutionality of legalizing of same-sex marriage). 6 amy coughlin & caryn abramowitz, cross-cultural adoption: how to answer questions from family, friends, and community xii (2004). 7 id. 8 see aura bogado, the cherokee nation’s baby girl goes on trial, colorlines (apr. 24, 2013 9:56 am), http://www.colorlines.com/articles/cherokee-nations-baby-girl-goes-trial (noting that the indian child welfare act must be viewed with an understanding “that natives hold a unique relationship with the federal government, one that is based on tribal sovereignty”); abigail perkiss, supreme court’s upcoming child-custody decision: the baby veronica case, yahoo! news (mar. 4, 2013, 11:00 am), http://news.yahoo.com/supreme-court-upcoming-child-custody-decisionbaby-veronica-110206332--politics.html; andrew cohen, indian affairs, adoption, and race: the baby veronica case comes to washington, the atlantic (apr. 12, 2013), http://www.theatlantic.com/national/archive/2013/04/indian-affairsadoption-and-race-the-baby-veronica-case-comes-to-washington/274758/; josh voorhees, the long, complicated “baby veronica” saga comes to an unsatisfying end, slate (july 17, 2013, 8:54 pm), http://www.slate.com/blogs/the_slatest/2013/07/17/adoptive_couple_vs_baby_girl_south_carolina_court_sends_bab y_veronica_back.html (illustrating the national media coverage of adoptive couple v. baby girl). 2016 columbia journal of race and law sidebar 3 brought to attention the significance of preserving the racial and tribal ties of a community whose cultural heritage is growing increasingly insular, and also how the socialization of our view of fathers’ and mothers’ value in the family unit has arguably influenced how the adversarial system adjudicates family cases. ii. summary of case the petitioner in adoptive couple was a man of cherokee descent, whose girlfriend of primarily hispanic descent (hereinafter referred to as “birth mother”) gave birth to a baby girl (hereinafter referred to as “baby girl”).9 for the duration of the pregnancy (and the subsequent four months after baby girl’s birth), petitioner did not provide any financial assistance to birth mother.10 the relationship between the two parties ended while the birth mother was still pregnant with baby girl.11 birth mother proposed that petitioner either pay child support for baby girl or relinquish his parental rights.12 petitioner agreed to relinquish his parental rights, and birth mother placed baby girl for adoption, using a private agency that selected a married couple that happened to be white.13 during the adoption proceedings, however, petitioner asserted that he did not consent to the adoption.14 rather, he insisted that at the time he signed the legal papers, he was under the impression that he was waiving his parental rights in favor of birth mother, not that he was consenting to adoption proceedings of baby girl commenced by the adoptive couple (hereinafter referred to as “adoptive couple”).15 petitioner subsequently filed suit to stay the adoption proceedings and sought custody of baby girl stating that he did not consent to baby girl’s adoption.16 moreover, petitioner took a paternity test that confirmed that he was the biological father of baby girl.17 the facts of this case were initially adjudicated under the south carolina family court, which denied the adoption and required adoptive couple to transfer baby girl back to petitioner.18 the south carolina supreme court subsequently affirmed the decision.19 a. south carolina supreme court decision the south carolina supreme court affirmed the decision of the south carolina family court, denying the adoption and awarding petitioner custody of baby girl. 20 this decision was largely rooted in the state supreme court’s interpretation of the indian child welfare act. the indian child welfare act (hereinafter referred to as “icwa”) was: [t]he product of rising concern in the mid-1970’s over the consequences to indian children, indian families, and indian tribes of abusive child welfare practices that resulted in the separation of large numbers of indian children from their families and tribes through adoption or foster care placement, usually in non-indian homes.21 9 adoptive couple v. baby girl, 133 s.ct. 2552, 2558 (2013). 10 id. 11 id. 12 id. 13 id. 14 id. 15 id. 16 id. at 2559. 17 id. 18 adoptive couple v. baby girl, 731 s.e.2d 550, 552 (s.c. 2012). 19 id. 20 id. 21 miss. band of choctaw indians v. holyfield, 490 u.s. 30, 32 (1989). 4 case comment: adoptive couple v. baby girl, 133 s. ct. 2552 (2013) vol. 6:2 the state supreme court cited to evidence that twenty-five to thirty-five percent of american indian children had been placed in adoptive families or foster care, and that approximately ninety percent of those placements were with non-indian families.22 many of these removals of american indian children from their natural parents were employed with no foundation to intelligently evaluate the “cultural and social premises underlying indian home life and childrearing.”23 congress subsequently employed the indian child welfare act, whose purpose was to put an end to the “culturally inappropriate removal of indian children.”24 the state supreme court first determined that application of the icwa to the case was appropriate for two reasons: first, the case involved custody proceedings relating to an american indian child,25 and second, petitioner qualified as a “parent” within the parameters of the icwa. the icwa defines a “parent” as “any biological parent or parents of an indian child or any indian person who has lawfully adopted an indian child, including adoptions under tribal law or custom.”26 this definition does not expressly mention an unwed father whose paternity has yet to be formally acknowledged or established.27 the state supreme court found petitioner to qualify as a “parent” within the parameters of the icwa, contending that petitioner acknowledged paternity through initiating court proceedings once he understood that baby girl had been put up for adoption.28 furthermore, petitioner’s biological paternity had been verified earlier by a dna test during state court proceedings.29 petitioner therefore was a “parent” defined by the icwa and as held by the state supreme court.30 furthermore, the state supreme court’s decision to deny baby girl’s adoption was based on two distinct provisions of the icwa: §1912(d) and §1912(f). the state supreme court held that these two sections barred the termination of petitioner’s parental rights.31 section 1912(d) stated that in order to effectively terminate parental rights under the icwa, the party seeking termination has to demonstrate to the court that “efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the indian family and that these efforts have proved unsuccessful.”32 the state supreme court held that adoptive couple failed to show that such efforts had been made and therefore had not satisfied this provision of the icwa. section 1912(f) of the icwa requires an expert finding “that the continued custody of the child by the parent or indian custodian is likely to result in serious emotional or physical damage to the child.”33 adoptive couple erroneously interpreted the statute so that it applies to their specific set of facts, purporting that removing baby girl from their custody would be emotionally traumatic, thus qualifying as emotional damage that the icwa statutorily requires.34 the state supreme court countered adoptive couple’s argument, stating that the plain language of the statute requires a showing that the “transferee parent’s” legal and physical custody of an american indian child would lead to her emotional and physical damage, not that the removal from adoptive parents would lead to such damage.35 consequently, the state supreme court held that adoptive couple failed to meet their burden of proving that petitioner’s custody of baby girl would result in 22 adoptive couple, 731 s.e.2d at 557. 23 id. 24 id. 25 id. at 556. 26 id. at 560. 27 id. 28 id. 29 adoptive couple, 133 s.ct. at 2573. 30 adoptive couple, 731 s.e.2d at 560. 31 adoptive couple, 133 s.ct. at 2559. 32 adoptive couple, 731 s.e.2d at 562. 33 id. at 562-63. 34 id. at 564. 35 id. 2016 columbia journal of race and law sidebar 5 her subsequent physical and emotional harm.36 due to the aforementioned reasons, the south carolina supreme court denied the adoption of baby girl and transferred custody to petitioner. adoptive couple appealed this holding, causing the case to reach the united states supreme court, which ultimately reversed south carolina’s decision. b. united states supreme court decision the court’s reversal of the south carolina supreme court decision—presented by justice samuel alito—was based in the analysis of two above-mentioned provisions of the icwa: §1912(d) and §1912(f). justice alito’s stark, textualist approach to interpreting these provisions is quite evident here because he used webster’s dictionary and the american heritage dictionary as the framework to analyze the statutory text.37 section 1912(d) provides that anyone seeking to terminate the parental rights to an indian child must first demonstrate remedial efforts made to prevent the breakup of the american indian family.38 he argued that the term “breakup” refers in the context of adoptive couple to the “discontinuance of a relationship”39 or a “disruption, separation into parts, disintegration”40 of an entity. in other words, the term “breakup” must be prefaced with evidence that there was an example of a familial link or affiliation to begin with. justice alito stated that, when an indian parent abandons its child prior to birth and never subsequently obtains legal or physical custody of that child, no relationship is ever solidified.41 therefore, any contention made by the south carolina court that would suggest any discontinuance or disruption of petitioner’s familial link to baby girl would be obsolete as there was no relationship to begin with. justice alito concluded, therefore, that section 1912(d) is not applicable in this case as petitioner never had custody of baby girl and never established parental rights.42 accordingly, adoptive couple was not in error for failing to comport with the statutory text requiring remedial services to be provided to petitioner. justice alito proceeded by turning towards section 1912(f) of the icwa. this particular provision of the icwa provides that no termination of parental rights shall be ordered in the absence of a finding that the continued custody of the child by the indian custodian “is likely to result in serious emotional or physical damage to the child.”43 justice alito placed emphasis on the qualifier “continued” when discussing custody, supplementing his opinion regarding section 1912(d). he noted that the phrase “continued custody” refers to custody of a child that a parent already possesses or has possessed at some point in the past.44 with this contextual explanation in place, justice alito re-emphasized the significance of petitioner’s absence of a familial connection with baby girl. if “continued” custody refers to some form of pre-existing custodial relationship between a child and its custodian,45 justice alito concluded that petitioner once more fails to exemplify any standing in his case, as he never had possession, access or custody of baby girl prior to his initiating this suit against her adoptive parents.46 36 id. at 563. 37 id. at 11. 38 adoptive couple, 133 s.ct. at 2557. 39 id. at 2555. 40 id. 41 id. at 2562. 42 id. but when an indian parent abandons an indian child prior to birth and that child has never been in the indian parent’s legal or physical custody, there is no “relationship” that would be “discontinue[ed]–and no “effective entity” that would have “end[ed]–by the termination of the indian parent’s rights. in such a situation, the “breakup of the indian family” has long since occurred, and §1912(d) is inapplicable. id. at 2555. 43 id. at 2556. 44 id. at 2555. 45 id. at 2560. 46 see id. (noting that “§1912(f) does not apply in cases where the indian parent never had custody of the indian child”). 6 case comment: adoptive couple v. baby girl, 133 s. ct. 2552 (2013) vol. 6:2 his opinion contends that a reasonable understanding of the icwa’s purpose makes it evidently clear as to why petitioner would not be eligible for standing against adoptive couple and why the south carolina supreme court’s decision was in error: its fundamental purpose is to preserve the standards for the removal of indian children from their families,47 not to create parental rights for noncustodial or unwed parents who otherwise would not possess such rights as the south carolina supreme court suggests.48 justice alito further argued that §§1912(d) and 1912(f) should be interpreted harmoniously, emphasizing the significance of the “continued custody” requirement.49 additionally, he reiterated that the icwa was enacted to preserve the cultural ties of the indian community.50 his concern, however, was that petitioner utilized this culturally-sensitive purpose to his advantage as a “trump card” to override the decision of biological mother’s decision to proceed with adoption of baby girl. permitting petitioner to frame his argument narrowly on this issue would ratify the decision of any indian parent to intervene in the adoption of his child by non-indians, even in the case when that indian parent had no previous relationship with the child or showed any desire to have a relationship with the child.51 iii. discussion a. narrow interpretation of “parent” the initial reason why the court’s analysis is flawed is due to the rather hollow interpretation of the term “parent” as defined by the bounds of the indian child welfare act. this distorted interpretation is the court’s principal rationale for its holding. the court’s understanding of who qualifies as a “parent” is far too narrow, qualifying individuals as “parents” only if their behavior comports with having continued custody of the child or children subject to the suit. section 1912(f) of the icwa purports that there can be no termination of parental rights without a finding that the “continued custody of the child by the parent or indian custodian is likely to result in serious emotional or physical damage to the child.”52 the court examines “continued custody” as a qualifier for an individual to have standing as a “parent” under the statutory language of the icwa. this examination, however, is far too constricting. the court contends that the phrase “continued custody” refers to custody that a parent presently has or has had at some point in the past.53 hence, their analysis concludes that an indian parent who never had custody of an indian child would not qualify as a parent.54 applying this analysis to the facts of the case presents the idea that petitioner would not have standing as a “parent” because he never had custody of baby girl either before or for the duration of the case. however, through this narrow examination, the court, whether deliberately or not, created a separate class of individuals who should be afforded substantive protections under the icwa. there is a uniform understanding that the definition of “parent” bestows certain procedural and fundamental rights.55 illogically defining a parent by his or her ability to have custody of the child in question unfairly creates a sub-class of individuals who would not be recognized as parents under the law and 47 id. at 2563. 48 the court’s interpretation of the icwa was not meant to create parental rights for indian parents, but rather to protect “indian parents who are already part of an indian family.” id. 49 id. 50 id. at 2565. 51 id. at 2565–66. 52 id. at 2557–58. 53 id. at 2560. 54 id. 55 id. at 2575. 2016 columbia journal of race and law sidebar 7 therefore would not be afforded the procedural and substantive protections that come with being a parent such as directing the child’s religious upbringing or making decisions about the child’s safety, health and welfare.56 individuals who may not have physical custody or even legal custody of their child—such as those who may pay child support, or only have visitation rights—are still very much parents.57 such individuals may not have continued custody of the child in question as justice alito discusses, but still very much contribute to the child’s well-being and emotional development. by the court’s logic, even these individuals should not be recognized as parents under the law. the function of the u.s. supreme court is to interpret the law,58 as they do here. but by interpreting the law as narrowly as the court does in this case, the court comes dangerously close to taking over the legislative role of defining legal terms and concepts by reformulating “parent” to really mean “custodial parent.” by the court’s reasoning, the icwa only protects the rights of a specific class of parents. the implicit argument is that congress never intended to protect an indian parent whose parental rights—for whatever reason—may have been terminated and who subsequently would make efforts through the courts to reinstate them. b. narrow understanding of icwa’s purpose the other reason behind the court’s flawed opinion is their dismissive examination of the icwa’s central purpose: to preserve tribal familial ties.59 the court argues that their holding comports with this purpose.60 however, this assertion is faulty considering the court’s narrow analysis of the icwa’s cultural and tribal-preserving objectives, coupled with its failure to understand the larger social context of the significance of fulfilling these objectives. justice alito insists that the court’s interpretation of the icwa is congruent with the statute’s intention to preserve cultural and social ties between children and their respective tribal communities.61 historically, the judicial community has utilized various methods of statutory interpretation. textualism and plain meaning are the two most prominent methods used by the court in presenting its opinion.62 scholars, however, have proposed additional methods of interpreting statutory text such as utilizing “public values” as a backdrop in conducting analyses.63 “public values” refers to the fundamental 56 see, e.g.,tex. fam. code ann. §151.001 (discussing the duties and rights of a parent, including the right to the care and control of the child, the right to represent the child in legal action, the right to direct the religious and moral training of the child and the right to determine the child’s primary residence); cal. fam. code ann. §3006 (noting that parents have the right to make decisions relating to the child’s health and safety); minn. fam. code ann. §518.17(3)(a)(1) (addressing a parent’s right of access to information regarding the child’s health and dental insurance, school reports and any other important documents). 57 see, e.g., id. at §§153.014–.015, 153.191–193 (noting the parental rights afforded to non-custodial or possessory parents including visitation); ind. fam. code ann. §31-17-4-1(a) (discussing the visitation rights of a noncustodial parent); see also s.c. fam. code ann. §63-15-250(a) (addressing a non-custodial parent’s right to communicate with his child via telephone or electronically). 58 u.s. const. art. iii, §§ 1–2. 59 adoptive couple v. baby girl, 133 s.ct. 2552, 2553 (2013). 60 id. at 2555. 61 id. 62 see id. at 2555, 2560, 2567 (noting justice alito’s reference to the american heritage dictionary, webster’s third new international dictionary and the oxford dictionary in interpreting the statutory language of the icwa). 63 see william n. eskridge, jr., public values in statutory interpretation, 137 u. pa. l. rev. 1007, 1007 (1989) (illuminating that “an important role of constitutional interpretation is to articulate and enforce ‘public values’ for our nation”); see id. at 1007–08 (“public values . . . are legal norms and principles that form underlying precepts for our polity—background norms that contribute to and result from the moral development of our political community. public values appeal to conceptions of justice and the common good . . . .”). 8 case comment: adoptive couple v. baby girl, 133 s. ct. 2552 (2013) vol. 6:2 commandments that underline our civic system—notions of common good and social justice that further the desires of the collective, rather than one particular group or individual.64 the appeal of public values in statutory interpretation is two-pronged: first, such values may foster greater congruity in statutory law, and second, may update said statutes so that they better reflect modern public policy.65 such a method would be more appropriate to employ in the instant case (more so than the blunt quasi-textualist approach the court utilizes) as it involves sensitive issues (race and family relations) that generally require scrutiny to be conducted with a more considerate, diplomatic approach. simply put, the court’s opinion exemplifies its lack of understanding of how and why the collective historical experience of the american indian community provides it with the heightened necessity to protect and preserve its cultural ties arguably more so in contrast to other communities of color in the united states. the icwa does not only protect the interests of indian parents, but of the respective indian tribe as a whole.66 justice sotomayor’s dissenting opinion emphasizes the significance of linking generational ties to sustain a tribal community’s longevity by noting the adverse impact of placing indian children in homes with no connection to tribal communities.67 the elephant in the discussion of transracial and cross-cultural adoptions is the issue of the “cultural authenticity” in selecting adoptive parents for these types of adoptions.68 if, for example, latinos are considered best suited to parent latino children, the natural implication is that a non-latino couple would be less suited to parent latino children.69 this is based on the assumption that a latino couple would have a better comprehension of that child’s racial experiences.70 the above-mentioned assertion does not equate to an absolute condemnation of cross-cultural adoptions. such a suggestion would exponentially impede on the fundamental right to build a family unit, particularly for those individuals who may have to look to alternative resources.71 however, for those who decide to move forward in a cross-cultural adoption, it is essential to reiterate the significance of the adopted child having close ties to his cultural community and preserving his racial identity.72 the african american,73 asian american74 and latino75 experience have become so immersed into the american cultural diaspora, that a child of color who may be adopted by a caucasian family would easily 64 id. at 1008. 65 id. at 1009. 66 adoptive couple, 133 s.ct. at 2561 (“the purpose of the [icwa] is to . . . promote the stability and security of indian tribes[.]”). 67 id. 68 kevin noble maillard, parental ratification: legal manifestations of cultural authenticity in cross-racial adoptions, 28 am. indian l. rev. 107, 120 (2003). 69 id. 70 id. 71 see meagan r. marold, ice, ice, baby! the division of frozen embryos at the time of divorce, 25 hastings women’s l.j. 179, 179–80 (2014) (discussing the numerous medical options available to families suffering with infertility, such as in vitro fertilization); see also fast facts about infertility, resolve: nat’l infertility ass’n, http://www.resolve.org/about/fast-facts-about-fertility.html?referrer=https://www.google.com/ (last updated apr. 19, 2015) (noting that approximately twelve percent of married women “have trouble getting pregnant or sustaining a pregnancy”). 72 deborah beasley, 12 ways to honor the culture, ethnicity, and heritage of your adopted child, how does your child grow—understanding your child from the inside out! (may 20, 2010), https://howdoesyourchildgrow.wordpress.com/2010/05/20/12-ways-to-honor-the-culture-ethnicity-and-heritage-ofyour-adopted-child/#comments (listing ways to “fill the gap between the culture and ethnicity of [an adoptee child, her] adoptive parents and the development of their own ethnic and cultural identities”). 73 see edward j. blum & jason r. young, the souls of w.e.b. dubois: new essays and reflections, 56 (mercer university press 2009) (proposing if “america [would] have been america without her negro people?”); 2016 columbia journal of race and law sidebar 9 have access to resources that would create cultural ties between that child and her racial community. if, say, a non-african american couple were to adopt an african american child, that child would have access to many resources that would help create and sustain ties to his african american heritage such as attending a predominantly african american church or joining a cultural center. these might be somewhat superficial methods to fostering a link between the child and his community, but doing do would at least create a vehicle in providing cultural solidarity for that child. 76 these ties may be somewhat surfaced, but they at least create a bridge in which that child can develop multiple relationships with other african american, asian american and latino individuals. an american indian child, however, would have a very different experience from his counterparts. the culture and traditional practices of these tribal communities may be preserved, but have been preserved in isolation by the inherent nature of their living circumstances. the majority of american indian individuals experience very insular living conditions by residing on reservations, which were historically put in place for the purpose of isolating the american indian community from european-populated areas.77 both indigenous and non-indigenous communities around the country make efforts to present these cultural practices to a larger audience, by hosting festivals or curating museums that center on the american indian experience; but these sorts of resources would not aid an adopted american indian child in developing any form of solidarity with his heritage. to further explain, these types of resources and programs, although educational, are somewhat superficial, designed to have the culture observed from a “fish-tank,” quasi-tourist perspective rather than to generating an extensive understanding of the tribal community. this is not the fault of those who coordinate gregory rodriguez, the nation: mexican-americans; forging a new vision of america’s melting pot, ny times (feb. 11, 2001), http://www.nytimes.com/2001/02/11/weekinreview/the-nation-mexican-americans-forging-a-new-vision-of-americas-melting-pot.html (noting one of the many significant ways the african american community contributed to the multicultural movement, notably through “its key moral impetus” in advocating for racial integration during the civil rights movement); americas cultural roots traced to enslaved african ancestors, nat’l geographic (oct. 28, 2010), http://news.nationalgeographic.com/news/2003/02/0205_030205_jubilee4_2.html (noting the african imprint on american cuisine, musical expression, even various forms of oral literature). 74 see generally leah binkovitz, from the civil war to civil rights: the many ways asian americans have shaped the country, smithsonian.com (may 3, 2013), http://www.smithsonianmag.com/smithsonian-institution/from-the-civilwar-to-civil-rights-the-many-ways-asian-americans-have-shaped-the-country-49762201/?no-ist (discussing asian influence on american culture). 75 see becoming american: beyond the melting pot, u.s. dep’t of state 7, http://photos.state.gov/libraries/korea/49271/march_2011/en_0111_immigration.pdf (discussing how immigrants from latin america have helped transform “the american pluralistic culture”); see also rodriguez, supra note 73. 76 darron t. smith, raising culturally responsive black children in white adoptive homes: uncovering the importance of code-switching in the battlefield of racial identity development, huffpost black voices (jan. 29, 2013, 12:08 p.m.), http://www.huffingtonpost.com/darron-t-smith-phd/adopted-black-children_b_2550751.html (last updated mar. 30, 2013). non-black adoptive parents have many resources to bolster a black adoptive child’s to be culturally response by “mov[ing] into more racially integrated communities, attend an african american church and other social functions, and finally, increase friendships with more african americans of equal status.” id. 77 the dawes act of 1887, 25 u.s.c. §349 (2016). the dawes act was a precursor to the “reservation system,” first employed in 1887 to survey american indian tribal land and apportion it to individual indians. see life on the reservations, u.s. history: pre-columbian to the new millennium, http://www.ushistory.org/us/40d.asp (last visited june 30, 2015) (noting that every “native american family was offered 160 acres of tribal land to own outright”). gary d. sandefur, american indian reservations: the first underclass areas?, inst. for research for poverty, 37–38, http://www.irp.wisc.edu/publications/focus/pdfs/foc121f.pdf (discussing the genesis of “reservations” in the united states, and its present function as both a reservoir to preserve indigenous “sovereignty and cultural traditions” as well as a reminder of “euro-american colonialism”). indian reservations, u.s. history in context, http://ic.galegroup.com/ic/uhic/referencedetailspage/referencedetailswindow?zid=2a87fa28f20f1e66b5f663e76873 fd8c&action=2&catid=&documentid=gale%7ccx3401802046&usergroupname=lnoca_hawken&jsid=f44511ddfe ce4faafab082109e34a539 (last visited november 10, 2015). 10 case comment: adoptive couple v. baby girl, 133 s. ct. 2552 (2013) vol. 6:2 such programs, but because the cultural experiences of american indians are packaged and presented in such a surfaced way, it would be difficult to properly develop a fortified relationship between the culture and the child who descends from that culture. conversely, an african american child adopted by non-african american parents would have more substantive and cultural outlets, as his heritage has not been as historically secluded from that of his american indian counterpart. the court’s opinion makes it evident that it did not have a firm grasp of the historical context behind the icwa’s purpose. the opinion also demonstrates why, on a larger scale, cross-cultural adoptions must be handled conscientiously for the sake of the child’s emotional and mental development and to facilitate the development, appreciation and identification with their culture.78 the significance of an adoptee’s relationship to her heritage is incontrovertible79 and it is evident that the court did not have an understanding of this when presenting its opinion.80 furthermore, there are several times throughout the court’s opinion that baby girl is referred to repeatedly and unnecessarily as being only 3/256 cherokee.81 it is perhaps done unintentionally, but by doing so, the court qualifies her indian ancestry as insignificant, which informs their opinion that baby girl has no true link to her american indian roots. this dismissive attitude of the racial identification of the child, coupled with justice alito’s “trump card” reference82 suggests that petitioner is utilizing “race” as a commodity to obtain his parental rights. not only is this suggestion off-putting and insensitive, but it also speaks to the broader issue of white privilege when these supreme court opinions are developed. to suggest that a member of an oppressed social group would use his social identity to his “advantage” to override a legal decision or obtain whatever it is that he wants, adds to the collective rhetoric wrongfully impeded on oppressed communities—for example, communities of color, the queer community, women, the immigrant community—suggesting that they would exploit the racist, sexist or classist attitudes of others to obtain their desires. it paints the petitioner’s decision-making with a broad brush, dismissing the fact that he made his decision based on a number of relevant factors, including the fact that he never consented to the adoption of baby girl. however, the court wrongfully minimizes petitioner’s decisionmaking to “playing the race card.” c. larger sociological view of fathers v. mothers family cases such as these bring to attention of the larger discussion of deciphering the constitutional framework of fathers’ rights. as a society we have arguably been conditioned to view mothers very differently than fathers.83 some scholars suggest that this socialization has influenced the court system in 78 beasley, supra note 72; see generally, delma l. francis, successful transracial adoptions require cross-cultural senstivity, minnpost (nov. 20, 2007), https://www.minnpost.com/arts-culture/2007/11/successful-transracialadoptions-require-cross-cultural-sensitivity (outlining a “cross-cultural” approach in engaging with transracial adoptees). 79 id. 80 supra iii.b. 81 adoptive couple, 133 s. ct. at 2556, 2559, 2566. 82 id. at 2565. 83 see mothering vs. fathering?, word choices (feb. 26, 2015), http://wordchoicesoprfhs.blogspot.com/2015/02/mothering-vs-fathering.html (describing how the “concept of ‘mothering’ has become entirely female . . . that there is an increased separation between men and women because of their social location . . . ”); id. (suggesting that “there is a reason why mothers and fathers have continued to maintain their current roles. . . . [t]here are certain things that only a mother can give to a child, just like there are certain things that only a father can give to a child.”); jennifer senior, why mom’s time is different from dad’s time, wall st. j. (jan. 24, 2014, 11:32 p.m.), http://www.wsj.com/articles/sb10001424052702304757004579335053525792432 (addressing how mothers are still primarily responsible for household even though they work roughly the same amount of hours as fathers); sally s. tusa, mom v. dad: whose doing the work?, parenting, http://www.parenting.com/article/mom-vsdad-whos-doing-the-work (discussing the arguably contrasting parenting skills between fathers and mothers in the household); john piper, do mothers and fathers have different roles in parenting?, desiring god (oct. 3, 2008), 2016 columbia journal of race and law sidebar 11 yielding decisions that favor mothers over fathers, particularly in conservatorship cases.84 this framework is not present in the instant case as petitioner is seeking conservatorship from the adoptive parents rather than the biological mother of the child. nevertheless, adoptive couple v. baby girl is still a very important case to add to the discourse about fathers’ rights in familial cases—particularly in the discussion of the statutory definition of what a “parent” is and what the definition subsequently entails. stanley v. illinois was the paramount u.s. supreme court case to first recognize fathers as their own class in need of constitutional protection underneath the equal protection clause of the fourteenth amendment.85 the plaintiff was an unwed father who brought suit against the state of illinois, challenging a statute that did not afford him the opportunity to a hearing on his parental fitness before his children were taken as wards of the state after the death of their mother.86 the court framed the plaintiff’s interest by contending that “[t]he private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.”87 the stanley court ultimately held that denying plaintiff such a hearing when unwed mothers and divorced parents were afforded such hearing violated the equal protection clause of the fourteenth amendment.88 this case parallels with adoptive couple, as the definition of “parent” was also discussed by the court as one of the more integral factors in determining the parental rights of the unwed father.89 this was the genesis of a series of cases litigated in the u.s. supreme court that brought to attention the rights of fathers in an institution that arguably had categorized their rights as expendable. caban v. mohammed,90 quilloin v. walcott,91 and michael h. v. gerald d.92 were all post-stanley decisions that added new voices to the constitutional rights of fathers on national platform. however, the integral difference between the prominent stanley case and adoptive couple is that the plaintiff in stanley had custody of his children before their mother’s death, whereas the adoptive couple petitioner never had custody of baby girl prior to the filing of his suit. stanley affirmed the constitutional http://www.desiringgod.org/interviews/do-fathers-and-mothers-have-different-roles-in-parenting (suggesting that it is the father’s responsibility to carry out discipline of children, not the mother’s). 84 caban v. mohammed, 441 u.s. 380, 381 (1979) (“maternal and paternal roles are not invariably different in importance. even if unwed mothers as a class were closer than unwed fathers to their newborn infants, the generalization concerning parent-child relations would become less acceptable to support legislative distinctions as the child's age increased.”); see kara l. boucher & ruthann m. macolini, the parental rights of unwed fathers: a developmental perspective, 20 n.c. cent. l.j. 45, 45 (1992) (“courts treat unwed fathers inconsistently across jurisdictions, generally focusing on the existence and quality of the relationship between the unwed father and his child without consulting relevant social science literature.”). 85 stanley v. illinois, 405 u.s. 645, 658—59, 92 s. ct. 1208 (1972). stanley’s claim in the state courts and here is that failure to afford him a hearing on his parental qualifications while extending it to other parents denied him equal protection of the laws […] illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. [d]enying such a hearing to stanley and those like him while granting it to other illinois parents is inescapably contrary to the equal protection clause. id. 86 id. at 646. 87 id. at 651. 88 id. at 658–59. 89 id. at 664–65. 90 see caban, 441 u.s. at 380 (finding that a new york statute that permitted a child’s unwed mother to withhold her consent and foreclose that child’s adoption, but did not allow a child’s unwed father to do the same was violative of the father’s constitutional rights). 91 see quilloin v. walcott, 434 u.s. 246, 246 (1978) (noting supreme court’s holding that “[e]qual protection principles do not require that [natural father’s] authority to veto an adoption be measured by the same standard as is applied to a divorced father”). 92 see michael h. v. gerald d., 491 u.s. 110, 159 (1989) (discussing that “fathers who have participated in raising their illegitimate children and have developed a relationship with them have constitutionally protected parental rights”). 12 case comment: adoptive couple v. baby girl, 133 s. ct. 2552 (2013) vol. 6:2 protection of unwed fathers’ parental rights, but left unanswered the question of the parental rights of unwed fathers who did not raise their children. this absence of protection for this particular class of fathers is glaringly evident in the opinion presented by the adoptive couple court, who freely interpreted “parent” in such a narrow way that unwed fathers without custody had no means of having their parental rights statutorily or constitutionally protected. if parameters were established to afford legislative protection for this class of fathers in a post-stanley world, the holding for the adoptive couple petitioner may have had a different outcome. speculation as to whether the case would have been held differently if petitioner had been the biological mother rather than the father of baby girl may appear obsolete. such theorizing, however, is important as the adoptive couple holding adds to the narrative of fathers’ parental rights and the issue of their equal protection, particularly for the “sub-class” of parents that justice alito delineates in the court’s opinion. the adoptive couple court fails to recognize the importance of the biological connection93 between a father and his child as it affords him an opportunity to develop a relationship with that child, embrace some measure of responsibility for that child and subsequently “enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.”94 iv. conclusion the court’s opinion is constructed far too narrowly, grounding the majority of its analysis on the lone, imprecise phrase “continued custody.”95 placing so much interpretive weight on this one phrase, coupled with the court’s distorted reading of the term “parent” within the meaning of the icwa, is why the court’s opinion is fundamentally flawed. additionally, the court’s opinion also reflects a lack of understanding of the larger contextual issues rooted in the petitioner’s case regarding race relations and the rights of unwed fathers. the court insists that its opinion aligns with the icwa’s fundamental purpose of conserving tribal and cultural ties between the american indian community and its children.96 their persistence that their finding is harmonious with the statute’s purpose further illustrates their ignorance of race relations and racial identity. this is exemplified primarily by qualifying baby girl’s racial identification as extraneous, but also by its off-putting language alluding to petitioner “race-baiting” as a way to challenge the holding, and finally by suggesting that the true test of equal protection for petitioner as an unwed father is rooted in a legal relationship rather than a biological one.97 93 lehr v. robertson, 463 u.s. 248, 262 (1983). 94 id. 95 adoptive couple, 133 s.ct. at 2557 (2013). 96 id. at 2555, 2561. 97 see id. at 2555 (illuminating the court’s contention that petitioner did not qualify as a parent under the icwa “because he had never had legal or physical custody of baby girl at the time of the adoption proceedings”). microsoft word cjrl_li_final.docx from housing to health: imagining antidiscrimination provisions for menthol cigarette marketing olivia lif * smoking has been decreasing steadily over the past several decades, but advertisers still target some populations for cigarette consumption. currently, almost nine out of ten african american smokers smoke mentholated cigarettes compared to only one in four white americans. this disparity in use came about through decades of targeted marketing efforts on the part of tobacco companies. mentholated cigarettes are more addictive than unflavored cigarettes and lead to more lifelong smoking. because menthol smokers have a harder time quitting, civil rights and public health advocates have long viewed the marketing practices of menthol cigarette makers as a racial injustice. this note substantiates this notion by comparing racially targeted marketing of menthol to the racial targeting practices in the subprime mortgage market. in housing crisis-era cases centered on fair housing act claims, courts found that targeting minorities to purchase predatory home loans was a civil rights violation. drawing on reverse redlining jurisprudence under the fair housing act and the equal credit opportunity act, this note proposes a statutory provision that would prohibit racially targeted marketing of mentholated cigarettes. i. introduction ............................................................. 370 ii. menthol additives’ role in the disparities in tobacco use and tobacco-related disease......... 373 a. targeted marketing ............................................... 373 b. disparities in use and disease ............................. 379 iii. inadequacy of existing legal tools in regulating menthol marketing ........................... 383 * j.d. candidate 2019, columbia law school. the author would like to thank professor kristen underhill for her wisdom and support during the writing process. the author would also like to thank akoto ofori-atta, whose curiosity and conversation inspired this note. 370 columbia journal of race and law [vol. 9:2 a. the master settlement agreement from statedriven tobacco legislation ................................... 383 b. congressional inaction on menthol....................... 385 c. fda inertia on menthol ........................................ 386 d. past civil rights lawsuits have been unsuccessful .......................................................... 389 iv. regulating tobacco marketing with an antidiscrimination provision ................................ 392 a. liability for targeted marketing under the fair housing act................................................... 393 b. liability for targeted marketing under the ecoa ..................................................................... 399 c. amending the tobacco control act to add an antidiscrimination provision ................................ 400 v. conclusion ................................................................ 405 i. introduction the widespread decrease in smoking and tobacco use over the past fifty years has been one of the united states’ greatest public health victories. between the 1960’s and now, the share of americans who smoke has dropped from over forty percent to almost fifteen percent,1 which has driven down tobacco-related disease. this massive reduction in smoking has preserved the lives of over 800,000 americans who, through smoking, would have succumbed to lung cancer.2 in honor of these gains, the center for disease control counts tobacco regulation as a crowning public health achievement.3 while these public health strides have been remarkable, the gains in smoking reduction have been distributed unequally 1 brady dennis, who still smokes in the united states—in seven simple charts, wash. post (nov. 12, 2015), https://www.washingtonpost .com/news/to-your-health/wp/2015/11/12/smoking-among-u-s-adults-hasfallen-to-historic-lows-these-7-charts-show-who-still-lights-up-the-most/? noredirect=on&utm_term=.0dde0a26d209 [https://perma.cc/9bz6-g5zh]. 2 nearly 800,000 deaths prevented due to declines in smoking, nat’l institutes health (mar. 14, 2012), https://www.nih.gov/news-events /news-releases/nearly-800000-deaths-prevented-due-declines-smoking [https ://perma.cc/gcn3-p9pu]. 3 ten great public health achievements—united states, 2001–2010, cdc: morbidity & mortality wkly. rep. (may 20, 2011), https://www.cdc. gov/mmwr/preview/mmwrhtml/mm6019a5.htm [https://perma.cc/xlu8-3jd3]. no. 4:369] from housing to health 371 across demographics. for example, low-income americans and native americans have disproportionately high smoking rates.4 smoking rates are the same between african americans and whites.5 still, african americans suffer from more tobaccorelated disease6 and mortality.7 smoking behavior and preferences are also different across demographics where smoking rates might be equal. in particular, african american smokers overwhelmingly smoke menthol cigarettes, which are tobacco cigarettes flavored with the compound menthol. menthol cigarettes have survived the mass tort litigation against tobacco companies and federal tobacco regulation that troubled the tobacco industry more broadly. currently, almost nine out of ten black8 smokers prefer menthol.9 this difference in use is troubling and is in fact a driver of health disparities. though menthol itself does not make cigarettes more toxic, the additive does make cigarettes easier to start smoking and harder to quit.10 the fact that more minorities smoke a more addictive product can be traced to racially targeted marketing campaigns 4 burden of tobacco use in the u.s., cdc, https://www.cdc.gov/to bacco/campaign/tips/resources/data/cigarette-smoking-in-united-states.html [https://perma.cc/6get-jsmh] (last updated feb. 25, 2019). 5 tobacco use in racial and ethnic populations, am. lᴜɴɢ ass’n, http://www.lung.org/stop-smoking/smoking-facts/tobacco-use-racial-andethnic.html?referrer=https://www.google.com/ [https://perma.cc/62f3-7cf5] (last updated feb. 20, 2019). 6 see pebbles fagan et al., eliminating tobacco-related health disparities: directions for future research, 94 am. j. pub. health 211 (2004) (discussing health disparities in tobacco-related diseases among groups in the united states). 7 see jessica y. ho & irma t. elo, the contribution of smoking to black-white differences in u.s. mortality, 50 demography 545 (2013) (examining the contribution of smoking-attributable deaths to mortality trends among african americans). 8 this note will use the terms “african american” and “black” interchangeably. though the author recognizes that these descriptors are not truly interchangeable, they will be used as such because the data and other research referenced do not distinguish between the two. 9 african americans and tobacco use, cdc, https://www.cdc.gov/ tobacco/disparities/african-americans/index.htm [https://perma.cc/bs3t-f7 5y] (last updated mar. 7, 2018). 10 see nadine kabbani, not so cool? menthol’s discovered actions on the nicotinic receptor and its implications for nicotine addiction, 4 frontiers pharmacology 95 (2013) (examining how menthol increases the addictiveness of cigarettes). 372 columbia journal of race and law [vol. 9:2 that began in the 1950’s.11 to this day, menthol cigarette makers inundate minority communities with advertisements while barely touching white markets. this targeting has created a disparate harm in public health, but current legal tools in tobacco regulation do not specifically address the civil rights injuries wrought by menthol cigarette makers’ hyper-focus on african american populations and mentholated cigarettes’ persistence in the tobacco market. this topic has been covered extensively in public health scholarship, where researchers express the intuition that tobacco companies’ targeted advertising on the basis of race is unjust and exacerbates societal inequalities. this note articulates those intuitions in legal terms by describing the harms of targeted marketing as civil rights injuries and by analogizing the marketing practices of menthol cigarette makers to the unlawful discriminatory behavior of lenders in the housing and credit sectors. while the practice of targeting certain goods at specific kinds of consumers is at the core of advertising, post-financial crisis cases about subprime lending show that racially targeted marketing can be harmful to minorities. this note draws on law from subprime lending because it is one area where legislators and courts have established that targeting minorities for certain kinds of products is unlawful. part ii of this note will describe the racial disparity in menthol tobacco use, and parallel disparities in tobacco-related diseases, as a civil rights problem. it will also investigate the substantial history of menthol companies’ targeting of african americans. part iii will explore tools that have been used to regulate cigarettes, including tort litigation, legislation, agency regulation, and civil rights litigation. it will also explain how each of the tools fails to reach the discrimination problem in racially targeted marketing of menthol. lastly, part iv will explore how two consumer protection statutes––the fair housing act and the equal credit opportunity act—have been interpreted to create liability for affirmative marketing of certain products based on race, especially in the aftermath of the subprime lending peak and the housing crisis. this note will draw on those statutes to propose a federal statutory framework 11 see joshua rising & lori alexander, marketing of menthol cigarettes and consumer perceptions, 9 tobacco induced diseases s2 (2011) (discussing the role that marketing plays in a consumer’s perception of menthol). no. 4:369] from housing to health 373 that would create civil rights liabilities for racially targeted marketing of menthol tobacco products. ii. menthol additives’ role in the disparities in tobacco use and tobacco-related disease while the percentage of african american adults who smoke is about equal to the share of white americans who smoke, african american smokers overwhelmingly prefer menthol cigarettes. almost nine out of ten african americans smoke menthol, whereas only twenty-five percent of whites share that preference.12 menthol cigarettes themselves can be more harmful than non-mentholated cigarettes because they are more addictive, and african americans overwhelmingly suffer the consequences from consuming a more addictive product. a. targeted marketing journalists and academics have extensively covered the racially targeted marketing practices of menthol cigarette makers, and tobacco companies in general, over the past several decades. starting in the 1940’s, tobacco companies sought to develop an african american consumer base for their products, relying on political connections, cultural figures, african american media, and even civil rights leaders to generate support for—or at least temper hostility towards— cigarette smoking.13 in the majority of cases, the tobacco companies were trying to push mentholated cigarettes on minority groups. it should be noted at the outset that there is no racially endemic preference for, or aversion to, mentholated cigarettes. that is, prior to menthol cigarette makers’ pursuit of african american smokers, african americans were not drawn to menthol to a significantly greater extent than white smokers. 12 stephanie saul, black lawmakers seek restrictions on menthol cigarettes, n.y. times (july 1, 2008), http://www.nytimes.com/2008/07/01/ business/01menthol.html [https://perma.cc/g4b8-smx3]. 13 see phillip s. gardiner, the african americanization of menthol cigarette use in the united states, 6 nicotine & tobacco res. s55 (2004) (examining the social factors that contribute to the disproportionate use of menthol cigarettes among african americans). 374 columbia journal of race and law [vol. 9:2 philip morris commissioned a survey in 1953 to assess appetite for menthol cigarettes, finding that two percent of white americans, and five percent of african americans, preferred kools, an existing menthol brand.14 phillip gardiner, a public health scholar, argues that tobacco companies magnified this small gap in consumer preference with decades of targeted advertising and relationship building, leading to the racial disparities in menthol cigarette consumption that we see today.15 tobacco companies first tried to tap into minority markets by networking with african american community groups and civil rights organizations in the late 1950’s and early 1960’s. the tactic was to align the tobacco industry with the growing civil rights movement and argue that such alignment grew naturally from the industry’s practice of employing african americans (first as farm workers and then as salespeople) at a time when few other industries did the same.16 executives at philip morris volunteered with and supported the national association for the advancement of colored peoples (naacp), the national urban league (nul), and the united negro college fund (uncf).17 with these relationships in place, tobacco companies were able to recruit salespeople from within the black community and, in turn, strengthen their performance with black smokers.18 menthol cigarette makers in particular delicately inserted themselves into the civil rights dialogue in the 1960’s as a way of capitalizing on the new cultural progression of black identity that was distinct from white culture. an internal marketing analysis from r.j. reynolds, the maker of newport menthols, shows that the industry had the objective of making menthols the choice product for african americans: 14 id. at s59. 15 id. 16 see chronology of philip morris policy of equal opportunity and involvement in the black community (dec. 24, 1987) [hereinafter philip morris], https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/#id= nxkg0089 [https://perma.cc/qf4m-73s5]; see also diane s. burrows, younger adult strategies and opportunities (feb. 17, 1984), http://legacy.library. ucsf.edu/tid/ene39d00 [https://perma.cc/nc2q-9fkr]. 17 v. b. yerger & r. e. malone, african american leadership groups: smoking with the enemy, 11 tobacco control 336, 337 (2002). 18 id. no. 4:369] from housing to health 375 it was time for blacks to build their own brand in the 1960s, the heyday of martin luther king and “black pride.” the strategy for exploiting this phenomenon was simple: kool apparently capitalized on this aspect of the 1960s by simply advertising to blacks before its competitors did. kool ads were in ebony consistently from at least 1962 . . . . kool became “cool” and, by the early 1970s, had a 56% share among younger adult blacks—it was the black marlboro.19 brown and williamson, the makers of kool, exploited multiple media avenues to reach african american consumers. in addition to advertising in ebony, brown and williamson ran advertisements in african american newspapers and on radio and television stations with significant african american audiences.20 by 1965, tobacco advertising in magazines was almost thoroughly racially segmented, with advertisements in ebony featuring african american models and professional athletes and advertisements in life featuring white models almost exclusively.21 the tobacco industry added another targeted marketing tactic to its portfolio starting in the 1970’s, which was marketing through music genres popular with african americans. in 1975, kool sponsored the kool jazz festival as a way to reach its target audience when it felt that other media opportunities were insufficient.22 in the 1980’s, brown and williamson’s music sponsorship operations expanded into hip hop and nightclubs, where the company would distribute free samples of menthol cigarettes to inner city youth through disc jockeys and van drivers who could localize brown and williamson’s efforts and “defend kool’s strong black franchise.”23 the menthol cigarette companies recognized that sponsoring music events was a 19 stacey j. anderson, marketing of menthol cigarettes and consumer perceptions: a review of tobacco industry documents, 20 tobacco control ii20, ii22 (2011) (footnote omitted); philip morris, supra note 16. 20 navid hafez & pamela m. ling, finding the kool mixx: how brown & williamson used music marketing to sell cigarettes, 15 tobacco control 359, 360 (2006). 21 richard w. pollay et al., separate, but not equal: racial segmentation in cigarette advertising, 21 j. advert. 45, 51 (1992). 22 hafez & ling, supra note 20, at 359. 23 id. at 361. 376 columbia journal of race and law [vol. 9:2 form of indirect advertising.24 menthol cigarette companies continued to focus on african americans in standard advertising mediums during this time. between 1984 and 1985, over sixtyfive percent of the cigarette advertisements in publications with african american readership—such as ebony, jet, and essence—were for mentholated cigarettes, compared to only about fifteen percent of cigarette advertisements in white or general interest magazines.25 menthol makers were implementing these culture-based marketing initiatives at a time when public awareness of the harms of smoking was growing. in the late 1980’s, sellers of mentholated cigarettes were concerned that they were losing some customers to the “polarization” of the african american consumer base into an elite class and an “underclass.” one company, r.j. reynolds, decided to focus its marketing efforts on the “underclass,” members of which would “simply have more pressing concerns than smoking issues”—that is, more pressing than their own health.26 tobacco companies led a parallel indirect advertising effort by deepening their relationships with community and advocacy groups that served lower-income african americans. in the 1980’s, r.j. reynolds made extraordinary contributions to the naacp’s special contribution fund in exchange for public support; by 1990, the company was placing its corporate logo on billboards advertising services provided by the national urban league.27 tobacco companies had also formed connec 24 tobacco companies advertised their menthol brands through music sponsorship well past the master settlement agreement in 1998. in the early 2000’s, brown & williamson ran the kool mixx campaign, in which the company linked itself to hip hop music and culture in an attempt to deepen its reach in the african american community and target african american youth. see id. the campaign included a music festival featuring artists such as the roots and erykah badu, a d.j. competition, and free hip hop cds. see id. in 2004, several states sued brown & williamson to enforce the master settlement agreement's provisions banning youth marketing. see id. a new york state court issued a restraining order enjoining much of the campaign in 2004. see id. 25 k. michael cummings et al., cigarette advertising and black-white differences in brand preference, 102 pub. health rep. 698, 699 (1987). 26 anderson, supra note 19, at ii25. 27 yerger & malone, supra note 17, at 337. for example, brown & williamson, the makers of kool, entered into a “fair share agreement” with the naacp, through which the tobacco company promised to generate revenue for minority-owned stores and rely on minority-owned advertising and marketing companies. id. brown & williamson internal documents show what the no. 4:369] from housing to health 377 tions with politicians in the congressional black caucus and state associations of black legislators.28 the tobacco industry influenced politicians to prevent the passage of laws unfavorable to the industry, leveraging their relationships with groups like the naacp in policy debates.29 direct advertising continued alongside indirect marketing. throughout the 1990’s, minority neighborhoods were saturated with billboards advertising mentholated cigarettes.30 by 1993, brown and williamson’s own internal assessment found that “blacks are three times as likely to smoke menthol and four times as likely to smoke full revenue menthol compared to non-blacks.”31 between 1998 and 2002, readers of ebony were nine times as likely to encounter a menthol advertisement as readers of people.32 mentholated cigarette makers have continued their racially targeted marketing practices into the present day in spite of serious obstacles. after the settlements from tobacco tort lawsuits (discussed in part iii) drastically curbed television and outdoor marketing, most tobacco marketing company hoped to gain through the agreement: “clearly, the sole reason for b&w’s interest in the [b]lack and hispanic communities is the actual and potential sales of b&w products within these communities and the profitability of these sales . . . this relatively small and often tightly knit [minority] community can work to b&w’s marketing advantage, if exploited properly.” id. 28 id. 29 coordination between tobacco companies and minority-focused organizations was a formidable tool in defeating anti-tobacco policies. in the 1980’s, when the federal government was considering an excise tax on cigarettes, tobacco companies relied on their partnerships with groups like the naacp and vocally cast the tax proposal as a regressive tax on minorities. again, internal documents reflected different concerns. a philip morris marketing memorandum emphasized that defeating the excise tax was a priority because the price increases on cigarettes through excise taxes would prevent young people from starting to smoke and forming a smoking habit. the company estimated that an excise tax would rob philip morris of the business of over 400,000 would-be smokers. yerger & malone, supra note 17, at 339–40. 30 diana p. hackbarth et al., tobacco and alcohol billboards in 50 chicago neighborhoods: market segmentation to sell dangerous products to the poor, 16 j. pub. health pol’y 213, 218 (1995). 31 anderson, supra note 19, at ii25. 32 rising & alexander, supra note 11, at 4. 378 columbia journal of race and law [vol. 9:2 shifted to capture consumers at the point of sale.33 mentholated cigarette makers direct their targeting efforts hyper-locally, focusing on majority-minority and inner city neighborhoods. a 2011 study of tobacco advertising around california high schools found that as the proportion of black students at a school increased by ten percentage points, the odds of encountering a newport advertisement increased by fifty percent.34 similar results were found in a study that observed the location of point-of-sale menthol advertisements with respect to race.35 promotional discounts for mentholated cigarettes also tend to make the product much cheaper in minority and low-income neighborhoods.36 surveys of former smokers indicate that the exposure to point-of-sale tobacco marketing prompted impulse purchases of cigarettes and undercut quit attempts.37 as recently as 2013, african american youth are three times more likely than children from other demographics to recognize advertisements for newport.38 33 see mohammad siahpush et al., social disparities in exposure to point-of-sale cigarette marketing, 13 int’l j. envtl. res. & pub. health 1263, 1263 (2016) (“in 2013, tobacco companies spent $8.9 billion on cigarette marketing. about 89% of this expenditure was made at the point of sale (pos) in the following three marketing areas: cigarette pack displays, advertisements, and promotional and price incentives for consumers.” (footnote omitted)). 34 lisa henriksen et al., targeted advertising, promotion, and price for menthol cigarettes in california high school neighborhoods, 14 nicotine & tobacco res. 116, 116 (2012). 35 see sarah moreland-russell, disparities and menthol marketing: additional evidence in support of point of sale policies, 10 int’l j. envtl. res. & pub. health 4571, 4579 (2013) (“[a] greater percent of retailers with menthol marketing near candy were located in census tracts with the highest percent of [b]lack children.”). 36 see suzan burton et al., marketing cigarettes when all else is unavailable: evidence of discounting in price-sensitive neighbourhoods, 23 tobacco control e24 (2014) (examining cigarette price variations in the australian market and its impact on smoking habits among certain groups). 37 see generally dale s. mantey et al., exposure to point-of-sale marketing of cigarettes and e-cigarettes as predictors of smoking cessation behaviors, 21 nicotine & tobacco res. 212 (2019). 38 amanda l. dauphinee et al., racial differences in cigarette brand recognition and impact on youth smoking, 13 bmc pub. health 170, 174 (2013). no. 4:369] from housing to health 379 b. disparities in use and disease there is some evidence that menthol cigarettes pose more negative consequences to smokers than non-mentholated cigarettes. these negative traits center around menthol cigarettes’ addictiveness and menthol smokers’ ability to quit smoking. first, menthol flavoring in cigarettes seems to encourage smoking initiation. tobacco companies added menthol to cigarettes to mask the harshness of the smoke, and studies have confirmed that menthol cigarettes are easier to start smoking.39 this is especially true in the context of youth smoking. in fact, tobacco companies were specifically aware that younger and less experienced smokers had a low tolerance for the irritation from nicotine and the taste of tobacco.40 a tobacco company’s own internal study from 1976 found that the cooling effect of menthol reduced the “nasal sting, tongue bite, and harshness” of tobacco.41 while overall youth smoking rates have been on a downward trajectory, youth smoking rates of menthol have risen by almost ten percent since 2008.42 39 see james nonnemaker et al., initiation with menthol cigarettes and youth smoking uptake, 108 addiction 171, 172 (2013) (“youth who begin smoking menthol cigarettes are more likely than youth who begin smoking non-menthol cigarettes to progress to established smoking.”); see also geoffrey m. curtin et al., measures of initiation and progression to increased smoking among current menthol compared to non-menthol cigarette smokers based on data from four u.s. government surveys, 70 reg. toxicology & pharmacology 446, 448 (2014). though there is a statistically significant positive relationship between initiating smoking with menthol and forming a daily smoking habit, there is no national data regarding menthol cigarettes and progression to daily smoking or lifelong smoking. curtin et al., supra. 40 valerie b. yerger, menthol’s potential effects on nicotine dependence: a tobacco industry perspective, 20 tobacco control ii29, ii30 (2011). 41 id. at ii30. 42 andrea c. villanti et al., changes in the prevalence and correlates of menthol cigarette use in the usa, 2004–2014, 25 tobacco control ii14, ii16 (2016). while menthol smoking rates have always been higher among african american youth than rates in other racial groups, the percentage of african american youth smoking menthol decreased very slightly (by 1.4 percent) between 2008 and 2014. id. as of 2014, almost eighty percent of african american youth and young adult smokers smoked mentholated cigarettes compared to only about fifty-six percent of hispanic youth smokers and about forty-five percent of white youth smokers. id. 380 columbia journal of race and law [vol. 9:2 second, menthol flavoring makes the smoking experience more addictive. while the menthol compound itself is not an addictive substance, menthol augments the addictiveness of nicotine in tobacco. because menthol tempers the harshness of cigarettes, smokers inhale more deeply and potentially absorb more nicotine.43 menthol has also been shown to inhibit the metabolism of nicotine, thereby increasing nicotine delivery.44 new research suggests that menthol might even increase the number of nicotine receptors in the brain.45 menthol also complements the addictiveness of nicotine in cigarettes by offering an accompanying soothing sensation. some researchers consider the effect menthol has on cold receptors to be another addictive property layered onto the nicotine.46 third, menthol additives seem to interfere with cessation—a smoker's ability to quit. one study found that minorities who smoked mentholated cigarettes had lower quit rates than minority smokers who smoked regular cigarettes.47 at a broader level, researchers have found that youth who start smoking mentholated cigarettes are eighty percent more likely to be lifelong smokers than those who initiate smoking with nonmentholated cigarettes.48 smoking duration tends to be greater in the black male population.49 a preliminary report issued in 2013 by a food and drug administration (fda) scientific committee affirmed all three of these addiction-related consequences of menthol additives in a sweeping literature review. the committee reported that 43 jill m. williams et al., higher nicotine and carbon monoxide levels in menthol cigarette smokers with and without schizophrenia, 9 nicotine & tobacco res. 873, 874 (2007). 44 see kabbani, supra note 10, at 1; see also n.l. benowitz, clinical pharmacology of nicotine: implications for understanding, preventing, and treating tobacco addiction, 83 clinical pharmacology & therapeutics 531, 535 (2008). 45 matthew f. thompson et al., menthol enhances nicotine-induced locomotor sensitization and in vivo functional connectivity in adolescence, 32 j. psychopharmacology 332, 337–39 (2018). 46 pamela i. clark & phillip s. gardiner, menthol cigarettes: moving toward a broader definition of harm, 12 nicotine & tobacco res. s85, s87 (2010). 47 id. at s90. 48 kabbani, supra note 10, at 1. 49 theodore r. holford et al., comparison of smoking history patterns among african american and white cohorts in the united states born 1890 to 1990, 18 nicotine & tobacco res. s16, s27 (2016). no. 4:369] from housing to health 381 “menthol in cigarettes is likely associated with increased initiation and progression to regular cigarette smoking,” “increased dependence,” and “reduced success in smoking cessation, especially among african american menthol smokers.”50 one might think that if african americans are less likely to be able to quit smoking because of mentholated cigarettes’ addictive properties and are more likely to smoke late into their lives, then smoking mentholated cigarettes creates more sickness and death in the african american population. however, most studies on the difference between mentholated and nonmentholated cigarettes have thus far not shown a difference in the additive’s impact on tobacco-related disease or mortality.51 for example, one study found that there was no significant difference in lung cancer rates between smokers of mentholated and non-mentholated cigarettes.52 other research found that smokers of mentholated cigarettes faced no increased risks of cardiovascular disease.53 however, it is not clear how much can be inferred from the absence of scientific findings linking smoking of mentholated cigarettes to tobacco-related disease.54 there is, for example, evidence that the smoke of mentholated cigarettes contains up to twenty percent more fine particles than non-mentholated cigarettes.55 exposure to fine particles increases one’s risk of a heart attack, even at the low levels seen in outdoor air pollution.56 smokers of mentholated ciga 50 fda, preliminary scientific evaluation of the possible public health effects of menthol versus nonmenthol cigarettes 5–6 (2013), https://www.fda.gov/downloads/scienceresearch/specialtopics/peerreview ofscientificinformationandasse/ucm361598.pdf [https://perma.cc/v95n-q 5n4]. 51 allison c. hoffman, the health effects of menthol cigarettes as compared to non-menthol cigarettes, 9 tobacco induced diseases s7, s12 (2011). 52 william j. blot et al., lung cancer risk among smokers of menthol cigarettes, 103 j. nat’l cancer inst. 810 (2011) (finding no increased risk of lung cancer from mentholated cigarettes alone). 53 heather m. munro et al., menthol and non-menthol cigarette smoking: all-cause, cardiovascular disease and other causes of death among blacks and whites, 133 circulation 1861, 1864 (2016). 54 linda a. alexander et al., why we must continue to investigate menthol’s role in the african american smoking paradox, 18 nicotine & tobacco res. s91, s91 (2016). 55 youn o. lee & stanton a. glantz, menthol: putting the pieces together, 20 tobacco control ii1, ii5 (2011). 56 id. 382 columbia journal of race and law [vol. 9:2 rettes can also face more exposure to the toxic effects of carbon monoxide than smokers of non-mentholated cigarettes.57 the current lack of scientific evidence that mentholated cigarettes produce more tobacco-related disease does not mean that there is no material harm that stems from the tobacco industry’s racial targeting. tobacco-related health disparities exist even where smoking rates are the same. african american smokers live fewer years than white smokers, and more african american deaths are attributable to smoking.58 the marketing practices of menthol cigarette makers have created a demand within the african american population, a medically vulnerable group that suffers a disproportionate burden of chronic disease.59 in fact, african americans face more tobacco-related disease and death even though they smoke at the same rate as white americans. academics refer to this higher disease and death burden from tobacco-related illnesses as the “african american smoking paradox.” for example, all african americans—not just those who smoke—are more likely to get lung cancer (whites have an incidence rate of 64.4 in 100,000 for the disease, while 74.7 african americans per every 100,000 get lung cancer).60 compounding this disparity is the fact that african americans receive less effective medical treatment for their illnesses.61 in the context of lung cancer, african americans who are diagnosed with the disease face shorter survival times than white lung cancer patients.62 african americans already face discrimination in health care treatment, limited access to care, exposure to environmental harms, residential segregation, and higher 57 see generally m.e. jarvik et al, mentholated cigarettes decrease puff volume of smoke and increase carbon monoxide absorption, 56 physiology & behav. 563 (1994). 58 ho & elo, supra note 7, at 2. 59 alexander et al., supra note 54 (including diseases like heart disease, stroke, hypertension, chronic obstructive pulmonary disease, and lung cancer). 60 am. lung ass’n, too many cases, too many deaths: lung cancer in african americans (2010). 61 elyse r. park et al., disparities between blacks and whites in tobacco and lung cancer treatment, 16 oncologist 1428, 1431 (2011). 62 sarah miller, lung cancer and african americans, cancer prevention & treatment fund, http://stopcancerfund.org/p-lung-cancer/ lung-cancer-and-african-americans/ [https://perma.cc/x66n-vu9w]. no. 4:369] from housing to health 383 poverty rates—conditions that predict disease.63 racially targeted marketing of mentholated cigarettes that seeks to make smoking more attractive to african americans further exacerbates existing health disparities. iii. inadequacy of existing legal tools in regulating menthol marketing while lawyers, lawmakers, and public policy officials have shown great interest in reducing smoking throughout the population and have undertaken efforts to rein in the ubiquitous and pervasive marketing of the tobacco industry, none of the major regulatory strategies since the mass tort litigation of the late 1990’s touch the problem of the racially disparate marketing of menthol cigarettes. a. the master settlement agreement from statedriven tobacco legislation for as long as they could, tobacco companies publicly maintained that their products were neither dangerous nor addictive. industry spokespeople adhered to these claims for decades in the face of mounting medical research that affirmed the addictive properties of nicotine and connected smoking to lung cancer. leaked documents, delivered to a professor by a whistleblower in 1994, showed that the industry deliberately sold cigarettes for their addictive nicotine content.64 states acted on this information and sued tobacco companies.65 specifically, they wanted to recoup the costs that state governments had expended in treating tobacco-related diseases. while the lawsuits focused on the health consequences of the product and the deception of consumers, they were vindicating fiscal injuries sustained by the state. by 1998, forty-six states had signed a master settlement agreement (the “msa”). 63 michael marmot et al., closing the gap in a generation: health equity through action on the social determinants of health, 372 lancet 1661, 1661 (2008). 64 tobacco litigation documents, u.c.s.f. libr., https://www.industry documentslibrary.ucsf.edu/tobacco/research-tools/litigation-documents/ [https: //perma.cc/j7cc-tgby]. 65 tobacco control litigation, pub. health l. ctr., https://www.public healthlawcenter.org/topics/tobacco-control/tobacco-control-litigation [https:// perma.cc/vu83-b7pp]. 384 columbia journal of race and law [vol. 9:2 in addition to requiring tobacco companies to pay states $246 billion over twenty-five years,66 the provisions of the msa were mostly concerned with tobacco companies advertising to youth of all races. the msa prohibits the industry from advertising on television, sponsoring athletic teams and leagues, and using cartoons in advertising.67 the agreement exempts adult-only facilities from these advertising restrictions. the settlement agreement adopts no race-based advertising restrictions, nor does it even acknowledge the practice of racially targeted marketing. as one law student described the msa, “[i]n its monochromatic approach to marketing, education, and treatment . . . the settlement neglected to address the industry’s outstanding obligation to racial and ethnic minority communities.”68 in fact, state attorneys general told the student author in interviews that they had neither discussed nor considered the unique and outsized public health harms minority communities sustained as a result of racialized marketing and higher tobacco use.69 the author even suggested that by closing off advertising and growth opportunities in youth markets, the msa may have indirectly exacerbated the problem of racially targeted marketing: “closing other corridors for tobacco companies puts them under greater pressure to seek out customers belonging to minority communities.”70 some evidence bears out this claim. in the two years after the msa was executed, newport, a popular manufacturer of mentholated cigarettes, increased its advertising in youth magazines by thirteen percent (from $5.3 million to $6 million).71 in the six years after the msa, mentholated brands went from spending thirteen percent of the industry’s total magazine 66 15 years later, where did all the cigarette money go?, npr (oct. 13, 2013), https://www.npr.org/2013/10/13/233449505/15-years-later-where -did-all-the-cigarette-money-go [https://perma.cc/ywt3-m7ah]. 67 master settlement agreement, pub. health l. ctr., http://www. publichealthlawcenter.org/sites/default/files/resources/master-settlementagreement.pdf [https://perma.cc/z2dz-2ytq]. 68 danny david, three paths to justice: new approaches to minorityinstituted tobacco litigation, 15 harv. black letter l.j. 185, 210 (1999). 69 id. 70 id. at 210 n.142. 71 charles king iii & michael siegel, the master settlement agreement with the tobacco industry and advertising in magazines, 345 new eng. j. med. 504, 507 (2001). no. 4:369] from housing to health 385 advertisement expenditures to seventy-seven percent.72 public health researchers observed that in spite of the msa’s efforts to curb––even eliminate––youth smoking, tobacco companies consolidated their brand advertising to focus on flavored cigarettes, including menthol, which are popular with youth and young adults.73 eventually, widespread public backlash forced the industry to scale back its youth-targeted advertising operations.74 as mentholated cigarette makers have injected more and more dollars into advertising, their share of the market has climbed.75 this history suggests that the msa not only failed to address the targeted marketing of menthol cigarettes specifically, but also that the settlement indirectly empowered menthol and other flavored cigarette brands. the msa’s prohibitions on youth advertising and its funding for anti-smoking advertising76 played some role in reducing the youth smoking rate—almost forty percent of american high school students smoked in the mid-nineties, but that number fell to fifteen percent by 2014.77 however, the msa left untouched the problem of race-based cigarette marketing, and so, twenty years later, one can still observe the disparities in menthol cigarette smoking across racial lines. b. congressional inaction on menthol the next window of opportunity for comprehensive raceconscious tobacco regulation came when the fda took jurisdiction over tobacco products in 2009. the family smoking 72 hillel r. alpert et al., after the master settlement agreement: targeting and exposure of youth to magazine tobacco advertising, 27 health aff. w503, w509 (2008). 73 id. 74 w. hamilton et al., cigarette advertising in magazines: the tobacco industry response to the master settlement agreement and to public pressure, 11 tobacco control ii54, ii56 (2002). 75 anushree sharma et al., trends in market share of leading cigarette brands in the usa: national survey on drug use and health 2002–2013, 6 bmj open e008813, e008814 (2016). 76 see melanie wakefield et al., effects of anti-smoking advertising on youth smoking: a review, 8 j. health comm. 229, 239 (2003) (showing that anti-smoking advertising funded through the settlement had capacity to influence teen smoking behavior). 77 adolescents and tobacco: trends, hhs, https://www.hhs.gov/ ash/oah/adolescent-development/substance-use/tobacco/trends/index.html [https://perma.cc/b94f-2qpu]. 386 columbia journal of race and law [vol. 9:2 prevention and tobacco control act (the “fsptca”) was a landmark piece of legislation that established product restrictions and gave the fda authority to set product standards and regulate marketing. in the fsptca, congress banned all flavor additives, including clove and fruit flavors, but it did not ban menthol.78 congress’s omission of menthol from the flavor ban was a political compromise.79 lawmakers assumed that the fsptca’s viability hinged on backing from tobacco companies, who might have pulled support if the flavor ban extended to menthol. furthermore, because of menthol cigarette companies’ longtime support for black politicians and civic life in black communities, there was discord amongst the congressional black caucus about the inclusion of menthol in the flavor ban.80 in addition to holding back on the menthol additive ban, congress declined to adopt more incremental provisions on the racially targeted marketing of menthol cigarettes. to deal with menthol, congress passed the buck to the fda, instructing the agency to research race-based disparities in menthol and consider a menthol ban in the future.81 c. fda inertia on menthol while congress excluded a menthol ban from the text of the fsptca, it did instruct the fda to evaluate the public health risks of mentholated tobacco products shortly after the agency assumed regulatory authority over tobacco. congress tasked the tobacco products scientific advisory committee with reporting on the public health risks posed by the use of menthol cigarettes, identifying their impact on african americans specifically.82 the menthol subsection of the statute required the committee to issue its report and a recommendation within a year of the committee’s establishment. 78 21 u.s.c. § 387g(a)(1)(a) (2018). 79 stephanie saul, blacks in congress split over menthol cigarettes, n.y. times (july 25, 2008), http://www.nytimes.com/2008/07/25/business /25menthol.html [https://perma.cc/2sjq-63r4]. 80 david, supra note 68, at 186. 81 michael freiberg, the minty taste of death: state and local options to regulate menthol in tobacco products, 64 cath. u. l. rev. 949, 952 (2015) (citing 21 u.s.c. § 387g(e)(1) (2012)). 82 21 u.s.c. § 387g(e)(1). no. 4:369] from housing to health 387 in july of 2011, the committee found that eliminating menthol cigarettes from the marketplace would improve public health, as its literature review had affirmed increased initiation and progression to regular smoking and decreased cessation in smokers of mentholated cigarettes.83 in 2013, the agency issued an advance notice of proposed rulemaking (anprm), contemplating several new regulations on menthol in acknowledgement of the additive’s danger to public health.84 the anprm solicited comments on potential new limits or a ban on menthol flavoring in cigarettes and new limits on menthol in non-cigarette tobacco products.85 the fda has yet to issue a final rule on menthol related to its 2013 anprm. in august of 2017, eight senate democrats wrote a letter to fda commissioner scott gottlieb urging the agency to address its continued delay on the issue, a part of which is the targeted marketing of menthol towards african american consumers.86 the lawmakers asked the agency to identify the steps it had taken since the anprm in 2013 to “address the risk of menthol,” the cause of delay in the final rulemaking, and a timeline for final regulations on menthol.87 the fda pulled two88 menthol cigarettes from the market in september of 2015.89 the fsptca allows the agency to ban the release and sale of—or withdraw from the market— new tobacco products that varied too much from previously approved cigarettes marketed in 2007.90 the fda found that the two menthol cigarette products were not substantially 83 fda, supra note 50, at 3 (“[r]emoval of menthol cigarettes from the marketplace would benefit public health in the united states.”). 84 menthol in cigarettes, tobacco products, 78 fed. reg. 44484 (proposed july 24, 2013). 85 id. 86 letter from edward j. markey, senator, to scott gottlieb, comm’r, fda (aug. 27, 2017), https://www.markey.senate.gov/imo/media/doc/letter %20to%20dr.%20gottlieb%20on%20menthol.pdf [https://perma.cc/lt86-z s8v]. 87 id. at 2. 88 these cigarettes were the camel crush bold and the pall mall deep set recessed filter menthol. 89 see press release, fda, fda issues orders that will stop further u.s. sale and distribution of four r.j. reynolds tobacco company cigarette products (sept. 15, 2015), https://wayback.archive-it.org/7993 /20170406152122/https://www.fda.gov/newsevents/newsroom/pressannou ncements/ucm462407.htm [https://perma.cc/dw7q-9494]. 90 21 u.s.c. § 387(j) (2018). 388 columbia journal of race and law [vol. 9:2 equivalent to their predicates, as the agency had previously represented, but rather “introduced new public health risks.” while the fda prevented new tobacco products from exacerbating public health dangers, these orders did nothing to address the widespread and disparate use of menthol already out in the market. at the start of the new presidential administration, the agency announced a new comprehensive regulatory plan with a less skeptical attitude towards menthol additives. rather than focusing on the harm menthol introduces to cigarettes, the fda planned to release new anprms that would contemplate the utility of menthol in nicotine delivery products that are less harmful than cigarettes.91 however, in march 2018, the fda issued an anprm seeking comments on product standards, restrictions, and distribution of flavored tobacco products in acknowledgement of flavor additives’ propensity to increase tobacco use in youth.92 finally, in november 2018, commissioner scott gottlieb released a statement that said that the agency will move forward and propose a rule to ban all menthol flavors in combustible cigarettes.93 while the proposed ban on menthol would take menthol cigarettes off the market, it did not speak to the racial disparity issues that have developed over the course of decades. and in any case, commissioner scott gottlieb abruptly announced his resignation on march 5, 2019.94 it is unclear how much further the fda’s tobacco control initiatives will move under new leadership. 91 see press release, fda, fda announces comprehensive regulatory plan to shift trajectory of tobacco-related disease, death (july 28, 2017), https://www.fda.gov/newsevents/newsroom/pressannounce ments/ucm568923.htm [https://perma.cc/5hw7-2m94]. 92 regulation of flavors in tobacco products, 83 fed. reg. 12294 (proposed mar. 21, 2018). 93 press release, scott gottlieb, comm’r, fda, statement from fda commissioner scott gottlieb, m.d., on proposed new steps to protect youth by preventing access to flavored tobacco products and banning menthol in cigarettes (nov. 15, 2018), https://www.fda.gov/newsevents/ newsroom/pressannouncements/ucm625884.htm [https://perma.cc/5w69xr8x]. 94 sheila kaplan & jan hoffman, f.d.a. commissioner scott gottlieb, who fought teenage vaping, resigns, n.y. times (mar. 5, 2019), https://www.nytimes.com/2019/03/05/health/scott-gottlieb-resigns-fda.html [https://perma.cc/t9aw-uwfk]. no. 4:369] from housing to health 389 d. past civil rights lawsuits have been unsuccessful prior to the tobacco control act, minority plaintiffs had tried to raise civil rights claims against menthol tobacco makers for their targeted marketing of african americans and the resultant disparities in tobacco-related death and disease. in brown v. philip morris, reverend jesse brown and “black smokers,” who were members of an advocacy group called the uptown coalition for tobacco control and healing in philadelphia, filed a lawsuit against menthol tobacco makers on behalf of all living african americans.95 the claims were pursuant to 42 u.s.c. §§ 1981, 1982, 1983, and 1985, which codify the civil rights acts of 1866 and 1871.96 section 1981 intended to give all citizens in every state the same rights to make and enforce contracts, while § 1982 intended to afford all citizens the right to buy, sell, and lease property.97 section 1983 provides a private right of action to citizens who have sustained civil rights injuries from government action, and § 1985 also grants citizens the right to sue over deprivations of rights coordinated by the government.98 the tobacco company defendants conceded to the racially targeted marketing the plaintiffs described in their complaint, and the plaintiffs offered some evidence that menthol cigarettes were more addictive.99 nonetheless, the district court granted the defendants’ motion to dismiss for failure to state a claim under the civil rights provisions. the district court drew on a long line of precedent holding that discriminatory advertising claims were not cognizable under §§ 1981 and 1982, which only recognize discrimination that impedes the enforcement of contracts or the sale of real property or causes african americans and whites to be offered different products.100 here, of course, the problem was not that african americans were excluded from a transaction, but that they were targeted for it. while previous plaintiffs had won some 95 brown v. philip morris, inc., no. 98-cv-005518, 1999 u.s. dist. lexis 14495 (e.d. pa. sept. 22, 1999), aff'd, 250 f.3d 789 (3d cir. 2001). 96 id. 97 id. at *18–19. 98 id. at *31–32, 42–43. 99 see id. at *5 n.1 (alleging that mentholated cigarettes delivered more nicotine to the smoker than non-mentholated cigarettes and that menthol was a toxic substance with its own health harms). 100 id. at *20–26. 390 columbia journal of race and law [vol. 9:2 cases in which defective products were sold to african americans deliberately, the district court found that there was no difference between the menthol cigarette products smoked by african americans and whites. the district court also dismissed plaintiffs’ § 1983 claims for due process and equal protection violations because the tobacco companies had not undertaken their advertising practices under the color of state law.101 on appeal, the plaintiffs argued that the advertisements philip morris directed at african american communities contained misrepresentations about the safety of menthol cigarettes, that the marketing practices violated the “full and equal benefit” clause of § 1981, and importantly, that philip morris’s practices were analogous to those of predatory home sellers in clark v. universal builders, inc.,102 who sold homes to african americans at grossly inflated prices.103 the third circuit rejected the analogy, because in clark, “the defendants sold houses to black purchasers on substantially different and more onerous terms than to others, effectively creating two separate, racially-segregated markets. . . . black smokers, however, point to no such disparities in the sale of mentholated tobacco products . . . .”104 the majority felt that what the black smokers were really concerned with was advertising, and §§ 1981 and 1982 did not reach discriminatory advertising, even in the case of housing, a sphere in which congress unambiguously wanted to purge discriminatory behavior.105 to address such conduct, congress had to pass separate statutes (like the fair housing act) prohibiting steering and predatory transacting. this case came to the courts seven years before the financial crisis hit and the underbelly of racially predatory subprime lending unearthed itself. in part iii, this note explains that in the postcrisis housing cases (mostly involving reverse redlining), courts’ interpretation of discrimination in marketing is more in line 101 id. at *31–32. 102 clark v. universal builders, inc., 501 f.2d 324, 333 (7th cir. 1974). 103 see id. at 328, 331. the premise of the clark plaintiffs’ claim was that the housing market in chicago was completely segmented into white and black. plaintiffs advanced an exploitation theory in which homesellers charged extraordinary prices to minorities who were locked into the “black” market. 104 brown, 250 f.3d at 799. 105 id. at 799–800. no. 4:369] from housing to health 391 with the housing analogy the black smokers unsuccessfully asserted. the third circuit affirmed the district court’s dismissal order in 2001.106 but one of the three panel judges dissented, arguing that §§ 1981 and 1982 protect more than just the right to transact. the provisions protect the right of african americans to transact with the same opportunities and options that white americans enjoy. this, he argued, was why courts could find civil rights liability even where sellers did not refuse buyers, as happens in racial steering in the housing market. racial steering is the practice of landlords or real estate agents pushing prospective residents into certain homes or neighborhoods based on their race. normally, this meant discouraging african americans from seeking housing alongside white residents by misrepresenting the condition of housing and neighborhoods or failing to show available housing.107 judge milton shadur, a judge in the northern district of illinois, wrote the following for the third circuit: what must be understood instead is that both section 1981 and section 1982 are not at all limited by their terms to the outright deprivation of the black community’s right to contract. instead each of those statutes mandates an equal playing field that is violated by conduct that imposes different and race-discriminatory conditions (however created) on the exercise of seemingly comparable contractual rights: section 1981 guarantees to black smokers “the same right . . . to make . . . contracts . . . as is enjoyed by [w]hite citizens,” while section 1982 assures to black smokers “the same right . . . as is enjoyed by [w]hite citizens . . . to . . . purchase . . . personal property.” and that is the gravamen of the complaint—that by the tobacco companies’ deliberate and successful targeting of black smokers to persuade them to purchase and smoke the concededly more dangerous menthol cigarettes and smokeless tobacco— conduct whose actionability is akin to the prohibition of actual “steering” under the fair 106 id. at 800. 107 george galster, racial steering in urban housing markets: a review of the audit evidence, 18 rev. black pol. econ. 105, 105 (1990). 392 columbia journal of race and law [vol. 9:2 housing act—those companies have impaired that equality of rights.108 the failure of the black smokers in brown shows the inadequacy of existing civil rights law to address the harms that stem from racially targeted marketing and the market segmentation fostered by tobacco companies. a new statutory framework is needed, and it should draw on the protections afforded to consumers in the housing and mortgage markets. iv. regulating tobacco marketing with an antidiscrimination provision it can be challenging to articulate how targeted marketing practices create civil rights injuries for two reasons. first, targeted marketing is not only commonplace in the realm of advertising—it is almost the very essence of present-day marketing. second, few of our current consumer protection laws sanction companies for trying to increase the probability of transactions with a certain demographic. antidiscrimination laws that concern themselves with how products are marketed were enacted to prohibit companies or sellers from fencing minority consumers out or denying transactions.109 where laws create liability even when the transaction goes through, the offending conduct is often fraud or misrepresentation.110 these statutes are not antidiscrimination laws in nature. however, the fair housing act111 (fha) and the equal credit opportunity act112 (ecoa) are two examples of civil rights statutes that create liability for targeting minority consumers for certain kinds of products. while congress passed these statutes to expand minorities’ access to credit and housing 108 brown, 250 f.3d at 807–08. 109 see, e.g., 42 u.s.c. § 3604 (2018) (contemplating discriminators making housing unavailable, denying housing, or refusing to rent or sell). 110 see, e.g., 12 u.s.c. § 5531 (2018) (empowering the consumer finance protection bureau to bring civil actions against regulated entities for unfair, abusive, and deceptive practices); see also donald m. zupanec, annotation, practices forbidden by state deceptive trade practices and consumer protection acts, 89 a.l.r.3d 449 (1979 & supp. 2000) (showing that every state has a consumer protection law that prohibits unfair and deceptive practices). 111 42 u.s.c. § 3601 et seq. (2018). 112 15 u.s.c. § 1691 et seq. (2018). no. 4:369] from housing to health 393 and to reduce residential segregation, cases from the 2000’s— the years leading up to and immediately following the financial crisis—show that the statutes are responsive to the affirmative and racially targeted marketing of predatory and subprime loans.113 in other words, because of the protections for consumers in the fha and ecoa, courts have been able to overcome the challenges to finding liability for the targeted marketing described above. for this reason, this note relies on these consumer protection statutes to propose an antidiscrimination statute for tobacco products that could sanction the racially targeted marketing practices of mentholated cigarettes. this note explores the fha and ecoa precedent from subprime lending cases to demonstrate how courts advance an understanding of the harms of affirmative marketing that can be applied to tobacco regulation. a. liability for targeted marketing under the fair housing act congress passed the fha in 1968 with the broad goal of eliminating residential segregation and promoting racial integration. the fha would seek to accomplish this by banning outright exclusion of persons from housing because of their race or other protected characteristic and by creating liability in the private market when sellers or landlords tried to allocate housing based on race.114 courts interpreted the fha expansively, supporting that reading with the acknowledgement that congress wished to end residential segregation in housing to combat the poor living conditions, concentrated violence, and physical isolation suffered by african americans.115 the fha contains several provisions that touch on racial preferences in advertising and marketing for housing. first, 42 u.s.c. § 3604(c) directly prohibits discriminatory advertising that communicates a preference based on any 113 see, e.g., matthews v. new century mortg. corp., 185 f. supp. 2d 874, 887–88 (s.d. ohio 2002) (finding that defendants’ targeting of elderly women for high-cost home equity loans constituted violations of the fha and ecoa). 114 rigel c. oliveri, is acquisition everything? protecting the rights of occupants under the fair housing act, 43 harv. c.r.-c.l. l. rev. 1, 28 (2008). 115 id. at 30, 31 (citing laufman v. oakley bldg. & loan co., 408 f. supp. 489, 496–97 (s.d. ohio 1976)). 394 columbia journal of race and law [vol. 9:2 protected characteristic. it makes it unlawful “[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.”116 advertising that targets certain racial groups can become a violation of other fha provisions. section 3604(a) makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” courts have read this provision to prohibit racial “steering,” which occurs when real estate brokers try to influence buyers toward or away from certain neighborhoods or housing, even though steering is not a direct denial of a transaction.117 ordinarily, liability for steering arises when brokers attempt to dissuade potential buyers from following through on a transaction because of their race. however, courts have found liability for steering in housing when real estate listing services selectively advertise housing to a particular race and therefore further entrench racial segregation.118 in other words, the fha punishes the practice of attracting people to homes because of their race, not just discouraging them from purchasing certain homes. section 3604(b) makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” for this note’s purposes, it will discuss cases that declare “reverse redlining,” or the singling out of minority homebuyers for subprime or predatory mortgages, to be a violation of § 3604(b). 116 42 u.s.c. § 3604(c) (2018). 117 neil c. bruce, real estate steering and the fair housing act of 1968, 12 tulsa l. rev. 758, 761 (1977). 118 in gore v. turner, 563 f.2d 159 (5th cir. 1977), a violation of § 3604(a) was shown by evidence that a white couple who sought housing in an apartment complex that was only half white-occupied was steered to an all-white complex also owned by the defendant management company. no. 4:369] from housing to health 395 subprime home loans were a niche market until they widely expanded in the 1990’s.119 among all mortgages, the percentage of subprime mortgages reached its peak in 2006.120 a critical feature of subprime lending was banks’ targeting of minority borrowers. economic research confirms that between 2004 and 2007, african americans were 105 percent more likely to borrow from a high-risk lender than white borrowers.121 one can consider the phenomenon of reverse redlining to be the combination of these two things: the rise of subprime and predatory lending122 and banks’ active concentration of those home loan products in minority communities. hargraves v. capital city mortgage corporation, litigated in 2001, was one of the first cases in which a court recognized reverse redlining as a violation of the fha under § 3604(b).123 the hargraves plaintiffs argued that capital city mortgage targeted african americans in the washington, d.c. area for predatory loans that were designed to fail.124 denying capital city mortgage’s motion for summary judgment on the fha claims, the court wrote: in order to show a claim based on reverse redlining, the plaintiffs must show that the defendants’ lending practices and loan terms were “unfair” and “predatory,” and that the defendants either intentionally targeted on the basis of race, 119 stuart r. berkowtiz, the subprime mortgage mess—a primer to assist investors: this article discusses the subprime mortgage crisis from the viewpoint of investors and suggests legal remedies, 64 j. mo. b. 122, 123 (2008). 120 see generally jacob w. faber, racial dynamics of subprime mortgage lending at the peak, 23 housing pol’y debate 328 (2013). 121 patrick bayer et al., what drives racial and ethnic differences in high cost mortgages? the role of high risk lenders (nat’l bureau of econ. research, working paper no. 22004, 2016) (examining racial and ethnic differences in subprime lending in seven diverse metropolitan areas from 2004 to 2007). 122 while subprime lending does not necessarily involve predatory practices, there is significant overlap in subprime lending and predatory lending. see linda e. fisher, target marketing of subprime loans: racialized consumer fraud & reverse redlining, 18 j.l. & pol'y 121, 127–29 (2009). 123 hargraves v. capital city mortg. corp., 140 f. supp. 2d 7, 20 (d.d.c. 2000), on reconsideration in part, 147 f. supp. 2d 1 (d.d.c. 2001). 124 id. at 20–21. 396 columbia journal of race and law [vol. 9:2 or that there is a disparate impact on the basis of race.125 there are two notable features of this two-pronged test, whereby plaintiffs must show the product is predatory, and then show discrimination. under the first prong, plaintiffs need not show that defendants sold a different kind of product to non-minority consumers in order to prove that the product is predatory. to require plaintiffs to come to court with proof that the defendants transacted with white customers differently would be to permit injustice “so long as it is visited exclusively on negroes.”126 in reverse redlining cases, loans are deemed “predatory” or “unfair” based on their intrinsic characteristics or the practices that lenders and brokers use in the transaction. the hargraves court recognized several characteristics that could make a mortgage predatory, including “exorbitant interest rates, lending based on the value of the asset securing the loan rather than a borrower’s ability to repay,” “‘churning’ loans through multiple foreclosures on the same property,” “and loan servicing procedures in which excessive fees are charged.”127 to the extent that many of these practices—like higher interest rates and excessive fees—function to lock the debtor into a longer relationship with the lender, ultimately increasing profits to the lender, the predatory nature of loans made through reverse redlining bears similarity to cigarettes. as described in part ii, youth who initiate smoking with menthol cigarettes are far more likely to become lifelong smokers than youth who start with non-mentholated cigarettes.128 several studies have shown that smokers of mentholated cigarettes are less successful at quitting than smokers of non-mentholated cigarettes.129 under the second prong, plaintiffs can demonstrate intentional discrimination by showing evidence of targeted advertising and marketing practices. taken together, these two features of the hargraves decision mean that even if defendants sell the same product to white consumers, plaintiffs have an 125 id. (quoting jackson v. city of okaloosa, 21 f.3d 1531, 1541 (11th cir. 1994) (establishing the availability of disparate impact claims for violations of the fha)). 126 id. at 20 (quoting contract buyers league v. f&f inv., 300 f. supp. 210, 216 (n.d. ill. 1969)). 127 id. at 18, 20–21. 128 kabbani, supra note 10, at 1. 129 clark & gardiner, supra note 46, at s88. no. 4:369] from housing to health 397 antidiscrimination claim so long as they can show they were influenced by racially targeted advertising to purchase a predatory product.130 the hargraves plaintiffs supplied evidence to substantiate both intentional discrimination claims and disparate impact claims. the court took note of certain facts the plaintiffs offered to show targeting: as evidence of intent, or targeting, plaintiffs point to the defendants’ solicitation of brokers who operate predominantly in the [b]lack community, their distribution of flyers and advertisements in [b]lack communities, the decision to place their offices in [b]lack communities, and the fact that a picture of nash standing next to former mayor marion barry, reverend jesse jackson, and former district of columbia councilmember arrington dixon hung just inside capital city’s office entrance (plaintiffs allege that this was an attempt to convey a message to african-americans that nash could be trusted).131 other courts adjudicating reverse redlining cases followed hargraves’s consideration of advertising with respect to interrogating the discriminatory intent of sellers. for example, in steed v. everhome mortgage, the eleventh circuit decided to follow the hargraves test because no other circuit court had recognized a reverse redlining claim under the fha. in upholding the lower court’s grant of defendant-mortgagee’s motion for summary judgment, the eleventh circuit noted the total absence of any evidence of racially targeted advertising, which the hargraves court found persuasive.132 the commonwealth 130 another line of cases applies a slightly different test to identify racial discrimination in reverse redlining. in matthews v. new century, the court held that a plaintiff must make out a prima facie case by showing that (1) she is a member of a protected class, (2) that she applied for and was qualified for a loan, (3) that she was given the loan on grossly unfavorable terms, and (4) that the lender continues to provide loans to other applicants with similar qualifications but on significantly more favorable terms, or that the lender intentionally targeted her for an unfair loan. 185 f. supp. 2d 874, 886 (s.d. ohio 2002). as is true in fha reverse redlining claims, plaintiffs can show intentional targeting through advertising in lieu of demonstrating that nonminority borrowers received more favorable mortgages. 131 hargraves, 140 f. supp. 2d at 21–22. 132 steed v. everhome mortg. co., 308 f. app’x 364, 369 (11th cir. 2009). 398 columbia journal of race and law [vol. 9:2 court of pennsylvania also relied on the hargraves test in mcglawn v. pennsylvania human relations commission to establish reverse redlining in the absence of state court precedent on the issue.133 in mcglawn, where a mortgage broker was seeking judicial review of a state agency determination that he violated the state’s human rights law by singling out african american borrowers for predatory loans, evidence of marketing practices persuaded the court that the broker intentionally discriminated against minorities. the broker “engaged in an aggressive marketing plan targeting african americans” in which he advertised extensively in print sources and on radio and television channels that were “oriented toward african american audiences and readers.”134 one commentator described the broker’s practices as building a “cultural affinity with the [b]lack borrowers it targeted.”135 if these predatory lending marketing tactics look familiar, it is because they are strikingly similar to the approaches that menthol cigarette makers took to target their product at african american consumers. tobacco companies first began the process by taking out advertisements in magazines and newspapers, and on radio and television shows, with predominantly african american audiences.136 then, tobacco executives began courting civil rights leaders and community organizations, whom they relied upon to earn african americans’ trust.137 menthol cigarette makers also tried to align their product with black cultural identity by sponsoring jazz—and later hip hop— music festivals.138 and just as subprime lenders did, menthol tobacco companies racially target based on geography: menthol cigarette retail promotions and discounts overwhelmingly cluster in african american neighborhoods.139 yet, only predatory lenders face civil rights liability for affirmatively marketing their products to a protected minority. 133 mcglawn v. pa. human relations comm’n, 891 a.2d 757, 767 (pa. commw. ct. 2006). 134 id. at 764, 772. 135 carol n. brown, intent and empirics: race to the subprime, 93 marq. l. rev. 907, 942 (2010). 136 hafez & ling, supra note 20, at 359 (describing the history of brown & williamson’s ‘‘kool mixx’’ campaign for the menthol brand “kool”). 137 anderson, supra note 19, at ii20. 138 hafez & ling, supra note 20, at 359. 139 rising & alexander, supra note 11, at s2. no. 4:369] from housing to health 399 b. liability for targeted marketing under the ecoa reverse redlining is also actionable under the ecoa, 15 u.s.c. § 1691(a)(1), which makes it unlawful for creditors to “discriminate against any applicant, with respect to any aspect of a credit transaction, on the basis of race.” in cases where plaintiffs allege that they were rejected for loans or credit products because of their race, plaintiffs must show that they qualified for the credit product, and that the lender preferred borrowers of a non-protected race, to make out a prima facie case.140 however, in cases involving reverse redlining where minority borrowers have been singled out for predatory loans, courts have approached the interrogation of discrimination in a very similar way to the fha cases. just like in cases under the fha, a plaintiff need not show that he or she was denied a transaction based on race in order to have a discrimination claim under the ecoa. for example, in hargraves, where plaintiffs also brought an ecoa claim, the court held that the plaintiffs stated a claim for discrimination even though they were not denied loans.141 the court found that the same predatory lending practices that made out the fha claim could violate the ecoa. courts have also applied the logic of reverse redlining claims under the fha to the ecoa. in lieu of showing that lenders prefer white borrowers or offer better credit products to non-minority consumers, ecoa plaintiffs bringing claims for reverse redlining can make out a prima facie case for intentional discrimination by showing that the defendant targeted racial minorities for a predatory credit product.142 140 see 2 carol v. clark, padrick’s respa, tila, hoepa, and ecoa in real estate transactions: with forms § 3:32 (2018–2019 ed. 2018). 141 hargraves v. capital city mortg. corp., 140 f. supp. 2d 7, 23 (d.d.c. 2000), on reconsideration in part, 147 f. supp. 2d 1 (d.d.c. 2001). 142 “courts have thus softened the requirements for establishing a prima facie case when reverse-redlining forms the substance of the discrimination claim, and have allowed such plaintiffs to show that they (i) were members of a protected class; (ii) applied for and were qualified for the housing or the loan; (iii) received grossly unfavorable terms; and (iv) were intentionally targeted or intentionally discriminated against.” m & t mortg. corp. v. white, 736 f. supp. 2d 538, 575 (e.d.n.y. 2010) (citing barkley v. olympia mortg. co., 2007 wl 2437810, at *13–15 (aug. 22, 2017); matthews 400 columbia journal of race and law [vol. 9:2 plaintiffs can establish discriminatory targeting by showing that defendants advertise or market inferior credit products to customers based on race. in m & t mortgage corporation v. white, plaintiffs sued a development corporation for selling and financing homes that were uninhabitable, contrary to representations in the sale contracts. the court indicated that the defendant’s use of african american agents who made it their “personal mission” to increase minority homeownership could be discriminatory targeting.143 the court stated that plaintiffs could also support their claim of intentional targeting based on race by showing that the defendant advertised in predominantly minority neighborhoods.144 c. amending the tobacco control act to add an antidiscrimination provision for the reasons articulated above, one can readily draw analogies between the affirmative marketing of predatory loans in reverse redlining and the racially targeted marketing of menthol cigarettes at african americans. both products— predatory loans and mentholated cigarettes—are suboptimal versions of their originals, prime mortgages and non-mentholated cigarettes. predatory home loans are more likely to go into default and cost the consumer more than what her creditworthiness warrants; mentholated cigarettes are more addictive and harder to quit than non-mentholated cigarettes and likely lead to longer lifelong smoking.145 both of these products are aggressively targeted at african americans through the media they consume and the neighborhoods they live in. v. new century mortg. corp., 185 f. supp. 2d 874, 887–88 (s.d. ohio 2002); hargraves, 140 f. supp. 2d at 23.). 143 the court denied summary judgment motions from both parties and stated that the question of intentional targeting was to be left for the jury. id. at 576. 144 id. 145 addiction is often used as a metaphor to describe debtors’ relationship to creditors who trap them into a cycle of borrowing in order to keep up with exorbitant interest and fees. for example, consumer protection advocates analogize payday loans to drugs when cash-poor borrowers get stuck rolling over loans. see bob sullivan, “like a drug”: payday loan users hooked on quick-cash cycle, nbc news (may 11, 2013), https://www.nbc news.com/feature/in-plain-sight/drug-payday-loan-users-hooked-quick-cashcycle-v18088751 [https://perma.cc/d7lj-8c3b]. no. 4:369] from housing to health 401 hargraves and its progeny under the fha and the ecoa instruct that racially targeted marketing can be injurious when the underlying product is harmful. and, because there are civil rights statutes that take on the goal of ending residential segregation, those injuries are legally actionable and can be described in civil rights terms. congress passed the fha and the ecoa because it recognized that many inequalities spun out of one’s inability to choose her home because of her race.146 just as establishing a home free from the obstacles of racial discrimination in the housing market is critical to living freely and fully as a citizen, it is essential that minorities be able to maintain bodily health without the discriminatory influences of companies that make and market products that kill when used as intended. health disparities result from myriad factors, including society’s tolerance of a particular demographic’s exposure to unhealthy agents. this note considers companies’ targeted promotion of smoking in the african american community an injustice, and one that contrasts starkly with the zealous and enduring nationwide campaign to reduce smoking rates. while racial justice movements have long included health-related policies in their platforms,147 and other healthrelated legislation takes care to prohibit racial discrimination, no laws yet address the civil rights injuries that stem from the targeted marketing of mentholated cigarettes. congress should amend the tobacco control act to include an antidiscrimination provision modeled after the provisions in the fha and the ecoa that would create liability 146 see laufman v. oakley bldg. & loan co., 408 f. supp. 489, 496 (s.d. ohio 1976) (“in this case, a realistic examination of the concerns that led to the adoption of this legislation proves a better guide to congressional intent than the dusty volumes of sutherland on statutory interpretation. primary among these concerns were the rioting and civil disturbances that had rocked the central cores of many of the nation’s major cities the previous summer. these disturbances had not only focused attention on the discontent of the people trapped in the nation’s ghettoes, but had also brought many to the realization that the underlying illness, of which the riots of 1967 were symptomatic, had to be treated if a worse catastrophe was to be forestalled. this, indeed, was the conclusion of the national advisory commission on civil disorders appointed by president johnson in july, 1967. its final report was released in march, 1968, during the debate on the civil rights act, and its findings were a matter of general concern to congress.”). 147 vann r. newkirk ii, the fight for health care has always been about civil rights, atlantic (june 27, 2017), https://www.theatlantic.com /politics/archive/2017/06/the-fight-for-health-care-is-really-all-about-civilrights/531855/ [https://perma.cc/v8zc-udcm]. 402 columbia journal of race and law [vol. 9:2 for the targeted marketing of menthol cigarettes. the provision should prohibit the kinds of practices that menthol cigarette makers have used in the past, such as targeting african americans in specific magazines or on the radio, as well as the tactics the industry currently uses, which are mostly focused on marketing at the point of sale in majority-minority neighborhoods. for example, the statute could make it unlawful “for any manufacturer of mentholated cigarettes to discriminate against any consumer, with respect to any aspect of a transaction to purchase mentholated cigarettes, on the basis of race.”148 this antidiscrimination provision should be enforceable in private actions brought by citizens, just as the antidiscrimination provisions in the fha and the ecoa allow. individuals or classes of individuals should be able to establish viable claims by providing evidence that they were targeted by advertisements, discounts, or marketing schemes focused in their neighborhoods. the fha offers private individuals actual and punitive damages if they prevail on their discrimination claims; the amendment to the tobacco control act should provide the same money damages. there are benefits to this statutory solution beyond just potentially decreasing the consumption of menthol cigarettes within minority groups, which a product or additive ban could do. first, african americans suffer a dignitary harm when society accepts that companies target them for tobacco consumption, especially because there is broad societal and governmental opposition to smoking because of its health risks. our current regulatory regime for tobacco is geared to prevent some people from smoking, but not all; it is more concerned with the longevity of the white and the wealthy than the health of minorities. universal regulations, like product bans, 148 while this note explores a statutory remedy for the racially targeted marketing of menthol cigarettes, borrowing from the fha, it might also be possible to relitigate the §§ 1981–82 discrimination claims first raised in the black smokers case. the court in hargraves deemed reverse redlining a cognizable injury under the fha, but also under § 1982. however, the cases from the subprime lending era are less certain on the applicability of § 1982 to factual situations involving reverse redlining. see honorable v. easy life real estate sys., 100 f. supp. 2d 885, 892 (n.d. ill. 2000) (“although sections 1981 and 1982 are narrower, they may be construed to prohibit some or all of the practices of which the plaintiffs produce evidence here . . . .” (citation omitted)). no. 4:369] from housing to health 403 do not offer a remedy for the indignity african americans suffer, because they touch every consumer in the same way. a second benefit of the statutory provision this note proposes for marketing is that it does not face the same obstacles as product regulation. regulations of the actual tobacco product face vehement and formidable opposition from the tobacco industry, as evidenced by the failure to include menthol in the 2009 statutory ban and the fda’s inertia on the matter. providing a civil rights private right of action is a way to influence tobacco consumption and sales without regulating the product specifically. industry opposition to such a provision would be harder to defend. while tobacco companies’ arguments against including menthol in the 2009 ban centered on racial paternalism and freedom of choice to smoke, an antidiscrimination provision would offer aggrieved litigants the chance to bring a lawsuit against marketing practices if they chose. finally, the statutory provision could close the gap in health equality by indirectly regulating a behavioral health determinant. discouraging the disparate use of mentholated cigarettes by prohibiting discrimination in advertising would be more efficient, in terms of effort and funds, than promoting and administering smoking cessation programs or more localized interventions. however, support for such an antidiscrimination regime in tobacco regulation would have to overcome some obstacles. first, there is the slippery slope counterargument. many harmful or suboptimal products are aggressively marketed to low-income and minority populations. fast food and junk food, for example, are much more prevalent in minority neighborhoods and they drive up obesity rates. how far should the regulation of products in the name of health equity go? should such advertising prohibitions apply to every product that contributes to a racial health disparity? the key to addressing this concern is the fact that there is no safe level of smoking. unlike makers of beauty products or music, menthol companies are singling out a specific population on which to foist a habit that is the number one cause of preventable death in the country.149 lawmakers have before decided to regulate marketing with respect to race when it comes to extremely important parts of a person’s wellbeing, such as housing, employment recruiting, and credit access. and while many other products—like fast 149 smoking & tobacco use: fast facts, cdc, https://www.cdc.gov/ tobacco/data_statistics/fact_sheets/fast_facts/index.htm [https://perma.cc/ xpj5-5mu6] (last updated feb. 6, 2019). 404 columbia journal of race and law [vol. 9:2 and junk food, soda, and alcohol—might contribute to health disparities, safe levels of consumption still exist. the same cannot be said for cigarettes. a second concern with this note’s proposal might be its interference with the exercise of liberty. cigarettes are legal, and the decision to smoke or not smoke—or to smoke a specific kind of cigarette—is theoretically up to the adult consumer. would a provision that aims to end racially discriminatory marketing simply be taking choices away from autonomous adults? this note argues that this is not the case. if anything, the status quo of targeting minorities for mentholated cigarettes, which are more addictive and lead to more lifelong smoking, prevents consumers from choosing a product across the full range of options. african americans are currently overexposed to the inferior product. similar arguments were made about predatory subprime loans in the fha and the ecoa cases: because of targeted marketing and promotion of subprime loans, african american borrowers simply did not know about better credit products.150 furthermore, there are already limitations on choice for other tobacco flavors, which congress simply banned in the 2009 tobacco control act. a third obstacle might sound in criticism of the fha’s impotence in the face of entrenched residential segregation: if such a lauded statute could secure only modest gains in equality between races,151 while the problem of residential isolation for minorities persists, why would a similar model work for the marketing of cigarettes? the answer is in the difference between the housing market, which is dispersed and includes many sellers, and the tobacco market, which includes only a handful of menthol cigarette makers in the united states. it would be much easier to police the advertising of tobacco products to targeted markets than it would be to enforce the fha’s antidiscrimination provisions in each housing-related transaction. 150 “[b]rokers—and some lenders—frequently targeted minority neighborhoods because they assumed residents would respond favorably to their pitches for these high-cost loan products. this is because borrowers with few financial options, or those unaware of other options, were more likely to take out higher-rate loans through subprime originators working in their neighborhoods.” fisher, supra note 122, at 148 (footnote omitted). 151 douglas s. massey, the legacy of the 1968 fair housing act, 30 soc. f. 571, 571, 581 (2015). no. 4:369] from housing to health 405 the fourth obstacle is the first amendment’s protection of commercial speech. in fact, tobacco companies have previously sued the fda over product labeling and advertising regulations.152 however, courts have upheld many of the fda’s labeling and marketing provisions to protect youth from smoking initiation, such as the ban on sponsoring athletic or music events. commercial speech does not have an unlimited runway; the government can regulate this speech when it has a substantial interest and the regulation achieves that substantial interest.153 furthermore, this note’s proposal does not actually proscribe specific content in advertising––it just demands that advertising not be discriminatory. in the employment context, for instance, where discrimination is illegal, employers do not have a first amendment right to advertise jobs to specific genders.154 v. conclusion menthol cigarettes persist in spite of massive overhauls in the regulatory scheme over tobacco more generally, brought on by widespread tort litigation, congressional legislation, and fda control. its continuance is responsible for the massive health disparities between white americans and african americans, the latter of whom suffer earlier deaths and more tobacco-related disease. past strategies, including tort litigation, civil rights lawsuits, and fda rulemaking, have proven ineffective at both curbing menthol use and stopping tobacco companies from targeting advertisements for their products at african americans and other minorities. a new regime is needed, and it can be based off of the same ideas that undergird consumer protection statutes. statutes like the equal credit opportunity act and the fair housing act accept that there are some “products”—in credit, in particular—that are subpar or more harmful to a consumer, 152 commonwealth brands, inc. v. united states, 678 f. supp. 2d 512, 521 (w.d. ky. 2010), aff’d in part, rev’d in part sub nom. disc. tobacco city & lottery, inc. v. united states, 674 f.3d 509 (6th cir. 2012). 153 ross d. petty et. al., regulating target marketing and other race-based advertising practices, 8 mich. j. race & l. 335, 382 (2003). 154 see pittsburgh press co. v. pittsburgh comm’n on human relations, 413 u.s. 376, 392 (1973); see also hailes v. united airlines, 464 f.2d 1006 (5th cir. 1972). 406 columbia journal of race and law [vol. 9:2 and they prevent directing consumers to those products on the basis of race. an analogous statutory regime for tobacco would finally target the core civil rights issue in this realm, which is the targeted marketing that produces health inequities. 2014 columbia journal of race and law 53 on death’s doorstep: the racially stratified impact of the michigan selfdefense act and why race-centric advocacy is not the answer jacob wolf* on july 20, 2006, michigan joined the growing number of states to enact “stand your ground” legislation. these statutes marked a dramatic expansion of the common law castle doctrine by allowing individuals to employ deadly force against assailants without first considering whether there were reasonably available avenues of retreat to safety. this note first examines the effect of the michigan self-defense act on the state’s legal landscape, ultimately concluding that the law provides individuals with an overbroad license to use deadly force in situations that could be resolved peacefully. this leads to the creation of a “shoot first” culture in which individuals feel empowered to resort to violent self-defense tactics without first evaluating alternative available means. this note argues that the shoot first culture enabled by the act poses a disproportionate threat to black americans due to the longstanding subconscious associations of blackness with criminality. black americans thus face a significantly greater likelihood of being incorrectly perceived as threatening, and, coupled with the statute’s expansive permit to use deadly force, killed by those who opt to stand their ground. the note also argues that race-centric advocacy strategies opposing stand your ground laws are likely to be polarizing and ineffective, and instead proposes a shift to principles grounded in empathy and dialogue. i. introduction……………………………………………………………....55 ii. the riddle of self-defense: michigan’s shift from common law castle doctrine to stand your ground……………………………...56 a. an explanation of people v. riddle………………………………..56 b. the legislative reaction to riddle………………………………...58 c. a reexamination of riddle under the self-defense act of 2006…60 iii. white guns, black graves: the racially disparate impact of the self-defense act………………………………………………………….62 a. the legislative process of the self-defense act…………………..62 b. implicit bias and the consequences of stand your ground……..65 iv. dialogue not diatribe: the gun rights debate in a post-racial society.......................................................................................................67 54 on death’s doorstep vol. 5.1 a. the nra’s influence……………………………………………….68 b. the problems with accusations of racism………………………. 71 c. an empathetic solution to stand your ground advocacy……….75 v. conclusion…………………………………………………………………79 i. introduction on october 1, 2005, florida passed the country’s first “stand your ground law”—designed to empower victims of violent crime by abrogating the duty to retreat, enabling victims to “stand their ground” and employ deadly force against attackers—and dramatically changed the state of self-defense laws across the nation.1 in the next few years, over thirty states followed florida’s example and enacted expansive castle doctrine laws of their own.2 michigan was one of these states, joining the stand your ground movement in 2006 when it passed its self-defense act (hereinafter, “self-defense act” or “act”).3 while most of the literature surrounding these acts has centered on florida, this note will use michigan as a vehicle to explore this controversial legislation. michigan is a particularly interesting state for this analysis, as it has relatively strict gun control measures in place and offers a unique juxtaposition between the predominantly black and crime-ridden detroit and the largely white and safe suburbs.4 as this note will demonstrate, this racial division played a significant role in the passage of the self-defense act, and remains at the forefront of the ongoing debate regarding the racial implications of the law. this note will explore this debate, first by providing a context through a discussion of the act’s legislative history and legal consequences, and then by offering a critique of the race-centric advocacy strategies employed by gun control activists seeking to repeal stand your ground legislation. the first section, “the riddle of self-defense,” considers the legal ramifications of michigan’s shift from its common law castle doctrine precedent, people v. riddle,5 to its statutory codification of stand your ground. this section explains the legal context of michigan self-defense law, and provides the reader with a legal framework with which to better understand the act’s racial implications. the second section, “white guns, black graves,” closely examines these racial implications by examining the act’s legislative process, social psychological studies linking race to perceptions of criminality, and the influence of the national rifle association (“nra”) in the legislative process. this section illustrates the act’s potential to unfairly victimize blacks due to subconscious associations of blackness with criminality. finally, the third section, “dialogue not diatribe,” proposes a new approach to addressing the racial injustices exacerbated by the act. the common strategy employed by opponents of stand your ground relies on outwardly racially charged rhetoric; however, this section argues that the act’s opponents should * j.d. candidate 2015, columbia law school; b.a. 2012, skidmore college. the author would like to thank professor jeffrey fagan for his advice and support in writing this note; and the staff of the columbia journal of race & law for their diligence and thoughtfulness in editing this piece. 1 see lydia zbrzeznj, florida's controversial gun policy: liberally permitting citizens to arm themselves and broadly recognizing the right to act in self-defense, 13 fla. coastal l. rev. 231, 232 (2012). 2 see sean sullivan, everything you need to know about ‘stand your ground’ laws, the washington post (july 15, 2013, 10:48 am), http://www.washingtonpost.com/blogs/the-fix/wp/2013/07/15/everything-you-need-to-knowabout-stand-your-ground-laws/. 3 mich. comp. laws ann. § 780.792 (2006). 4 brady campaign 2011 score card: 2011 state rankings, brady campaign, available at http://www.bradycampaign.org/sites/default/files/2011_brady_campaign_state_scorecard_rankings.pdf. 5 649 n.w.2d 30 (2002). 2014 columbia journal of race and law 55 utilize empathetic dialogue in order to transcend race, humanize the issue, and highlight the devastating effects stand your ground has on families and communities. ii. the riddle of self-defense: michigan’s shift from common law castle doctrine to stand your ground in order to fully understand the implications of the self-defense act of 2006, it is imperative to examine michigan’s common law justifiable homicide doctrine before the act’s enactment. the leading statement of this doctrine is the 2002 michigan supreme court case of people v. riddle. this section, through an examination of riddle, seeks to provide context in which to place the enactment of the selfdefense act. it will begin by explaining the facts and holding of the riddle case. next, it will discuss the legal impact of the self-defense act and how it alters the common law doctrine under riddle. finally, it will illustrate the legislation’s effect by analyzing the facts of riddle as though they occurred after the implementation of the act. a. an explanation of people v. riddle the case involved an altercation between marcel riddle and his friend, robin carter, during which riddle killed carter by shooting him eleven times in the legs with an automatic carbine rifle in the presence of a third party, james billingsley.6 the shooting occurred in the driveway outside of riddle’s home.7 the facts of the case were disputed due to inconsistent testimony from billingsley and riddle.8 billingsley claimed that carter made insulting remarks about riddle’s fiancé, and, in response, riddle went into his home, armed himself with a rifle, and walked back outside and shot carter.9 billingsley further testified that carter was unarmed and did not approach riddle after he returned with his rifle.10 riddle, however, contended that he was intervening in an argument between billingsley and carter. perceiving carter to be the more aggressive party, riddle asked him to leave.11 he testified that he saw a “dark object” that he believed to be a gun in carter’s hand. riddle immediately grabbed his rifle from his detached garage, and fired at carter’s legs with the intent to scare him.12 the lower court convicted riddle of second-degree murder and possession of a firearm during a felony.13 riddle appealed to the michigan supreme court, arguing that, under the circumstances, he had no duty to retreat before using deadly force against carter.14 in reaching its decision, the court considered two prongs of the justifiable homicide doctrine. first, the court determined the extent of michigan’s “castle doctrine,” and whether a driveway was encompassed by the definition of “castle.”15 second, the court analyzed whether riddle was obligated to retreat before exercising deadly force against carter.16 6 id. at 35. 7 id. 8 id. at 36. 9 id. 10 id. 11 id. 12 id. 13 id at 37. 14 id. 15 id. at 42. 16 id. at 47. 56 on death’s doorstep vol. 5.1 the castle doctrine was codified into michigan law with the enactment of the state’s first murder statute in 1846.17 the court noted that one justification for the castle doctrine lies in the notion that there exists “an instinctive feeling that a home is sacred, and that it is improper to require a man to submit to pursuit from room to room in his own house.”18 additionally, a person’s home is “his primary place of refuge … there is simply no safer place to treat [sic].”19 though other jurisdictions had previously extended the castle doctrine to include areas such as the driveway,20 the michigan supreme court opted against such an expansion in riddle. the court relied heavily on language from its own 1860 precedent, pond v. people: “a man is not, however, obliged to retreat if assaulted in his dwelling.”21 the court reasoned that the emphasized language precluded it from expanding the castle doctrine to any areas beyond the inhabited dwelling itself.22 under michigan common law, the duty to retreat is abrogated only inside one’s home; riddle was therefore barred from asserting the castle doctrine as a defense to killing carter.23 after finding the castle doctrine to be inapplicable on the facts of this case, the court turned its attention to whether any other exception to the duty to retreat would justify riddle’s actions. first, the court stated the common law rule of justifiable homicide: “[t]he killing of another person in self-defense is justifiable homicide only if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.”24 the court highlighted the requirement of “necessity” in a finding of justifiable homicide, and emphasized that this is a fact-intensive inquiry.25 beyond the castle doctrine, there was one other scenario in which a self-defense killing was justified under michigan common law: “when a person is violently attacked and it does not reasonably appear that it would be safe to retreat.”26 the court reaffirmed the governing principles of self-defense that were articulated in the 1850 case people v. doe.27 in that case, the court outlined three rules of justifiable homicide. first, when a person was acting lawfully and was attacked by another under circumstances that indicate a risk of death or great bodily harm, the victim could kill his adversary provided that he attempted to retreat or disable his attacker before using deadly force.28 second, if a person was attacked in a manner that was so “sudden, fierce and violent” that retreat would increase the danger he was in, he was allowed to kill the assailant without any attempt to retreat.29 finally, if there was reasonable ground to believe the assailant intended to kill or commit any felony upon the victim, then the victim’s use of deadly force would be “excusable homicide” even if it was subsequently be determined that no felony was intended.30 taken together, these rules establish that though there was a duty to retreat whenever a person can safely avoid an attack, “one [was] never obliged to retreat from a sudden, fierce, and violent attack, because under such circumstances a reasonable person would, as a rule, find it necessary to use force against force without retreating. the violent and sudden 17 see id. (explaining the history of the castle doctrine in michigan common law). 18 id. at 42. 19 id. at 43. 20 id. 21 pond v. people, 8 mich. 150, 177 (1860) (emphasis added). 22 riddle, 649 n.w.2d. at 43. 23 id. 24 id. at 38. 25 id. 26 id. at 39. 27 people v. doe, 1 mich. 451 (1850). 28 id. at 456. 29 id. at 457. 30 id. 2014 columbia journal of race and law 57 attack remove[d] the ability to retreat.”31 thus, before the enactment of the self-defense act, michigan common law imposed a duty to retreat from assailants whenever safely possible. the riddle court also explained that, at common law, there was only one scenario in which michigan law imposed an affirmative duty of retreat. when a defendant was engaged in mutual, nondeadly combat (and outside his “castle”) that suddenly escalated into deadly violence, the defendant was barred from employing deadly force so long as there existed any other reasonable way to save his life.32 the rationale for this duty was that the defendant, by virtue of voluntarily engaging in the initial combat, was not free from fault and thus not entitled to stand his ground. in sum, “at common law the innocent victim of a murderous assault had no affirmative duty to retreat; instead, if he reasonably believed that it was necessary under the circumstances to exercise deadly force, he could kill his assailant in self-defense. this rule is consistent with the generally applicable rules of self-defense as codified in michigan's murder statutes.”33 so long as an otherwise innocent defendant could prove that there existed no reasonable opportunity for retreat, then he was entitled to stand his ground under michigan common law. in riddle, the court affirmed the defendant’s conviction. it rejected riddle’s argument that the jury instructions were inadequate, finding that they properly explained that the defendant was only obligated to retreat if he could so safely.34 the court also noted that the jury was permitted to “consider how the excitement of the moment affected the choice the defendant made in exercising deadly force.”35 these instructions provided riddle a sufficient opportunity to demonstrate to the jury that it was necessary for him to take carter’s life. b. the legislative reaction to riddle the self-defense act of 2006 abrogated the duty of retreat that had existed in michigan common law for over 150 years by extending the castle doctrine to “anywhere [an individual] has a legal right to be.”36 the relevant section of the act is m.c.l. 780.972(1), which provides: an individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies: (a) the individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual. 31 riddle, 649 n.w.2d at 39 (emphasis in original). 32 id. at 39. 33 id. 34 the jury instructions were as follows: “by law, a person must avoid using deadly force if he can safely do so. if the defendant could have safely retreated but did not do so, you can consider that fact along with all the other circumstances when you decide whether he went farther in protecting himself than he should have. however, if the defendant honestly and reasonably believed that it was immediately necessary to use deadly force to protect himself from an [imminent] threat of death or serious injury, the law does not require him to retreat. he may stand his ground and use the amount of force he believes necessary to protect himself.” id. 35 id. at 46. 36 mich. comp. law ann. § 780.972 (2006). 58 on death’s doorstep vol. 5.1 (b) the individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.37 at first glance, the language of the statute does not appear to indicate a marked shift from the common law rule announced in riddle. an individual who “honestly and reasonably” believes that deadly force is necessary may resort to it. this language seems to track the emphasis placed on “necessity” by the riddle court. the primary difference between the statute and the common law, however, is that under common law there was a duty to avoid using deadly force by retreating if reasonably possible (with the exception of the castle doctrine). at common law, the jury was also permitted to consider how the excitement of the moment affected the decision to exercise deadly force. this would presumably encourage the jury to empathize with the defendant, and prevent a cool-headed and detached jury from second-guessing the frantic actions of a defendant whose life was in danger. the statute thus only alters the justifiable homicide analysis in one set of cases: when a defendant resorts to deadly force in a situation in which he or she could have retreated to safety. as discussed above, at common law, a jury would scrutinize the reasonableness of a defendant’s potential ability to retreat. this reliance on jury discretion could seem unfair to defendants who believed they were in a life-or-death situation and thus neglected to utilize an obvious avenue of retreat. such a defendant would likely question a jury’s fitness to assess a self-defense situation when they were not present in the heat of the moment. conversely, the jury instructions would provide safeguards to prevent secondguessing. by emphasizing that there was no affirmative duty to retreat (except for cases involving voluntary combat), the common law offered the jury significant latitude in justifying a homicide. the common law, however, signified that the michigan courts believed that requiring defendants to retreat whenever reasonably possible would ultimately save more lives. such a policy potentially reduces the risk of mistaken self-defense killings, in which a frightened defendant used deadly force against a perceived assailant. proponents of the self-defense act, however, would argue that imposing an obligation to retreat protects unlawful aggressors while needlessly risking the lives of individuals acting lawfully. statutes passed concurrently with the self-defense act further altered the stand your ground landscape of michigan. the legislature also enacted a law granting immunity from civil liability to individuals who acted in compliance with the self-defense act, even if the “honest and reasonable” fear was erroneous.38 if a victim (or the family of a victim) of an actor’s misguided but legally justified exercise of deadly force brings a civil action against the actor, the court will award the payment of attorneys’ fees and costs to the actor.39 there is thus no legal recourse for the victims of deadly force caused by an “honest and reasonable”—yet ultimately mistaken—fear of imminent harm. finally, the legislature also created a rebuttable presumption that an individual using deadly force pursuant to the self-defense act is acting with an honest and reasonable belief that “imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual.”40 this presumption, though, is limited to when the individual against whom deadly force is used is engaged in breaking and entering a dwelling or business premises or 37 id. 38 mich. comp. law ann. § 600.2922b (2006) (“an individual who uses deadly force or force other than deadly force in self-defense or in defense of another individual in compliance with section 2 of the self-defense act is immune from civil liability for damages caused to either of the following by the use of that deadly force or force other than deadly force . . . .”). 39 mich. comp. law ann. § 600.2922c (2006). 40 mich. comp. law ann. § 780.951 (2006). 2014 columbia journal of race and law 59 trying to remove an individual forcibly from a dwelling, business premises, or occupied vehicle.41 when the aforementioned criteria are met, the burden of proving “honest and reasonable belief” shifts from the defendant to the prosecution.42 that is, rather than the defendant needing to demonstrate that they were acting with such a belief, the responsibility is instead placed on the prosecutor to affirmatively disprove that the defendant acted honestly and reasonably. due to the common law’s refusal to establish a general affirmative duty to retreat, the statutory abrogation of the duty to retreat would not dramatically alter a justifiable homicide analysis in most close cases. the cases in which the statute would significantly affect the outcome are those in which there was an obvious avenue of retreat. a useful way to understand the differences between the common law and the act is through a reexamination of people v. riddle as though it were decided after 2006.43 c. a reexamination of riddle under the self-defense act of 2006 a case such as riddle would potentially come out differently under the self-defense act than at common law. the common law analysis would hinge on three questions: was the fear of death or great bodily harm honest and reasonable? was there any duty to retreat (i.e., was the driveway part of riddle’s castle)? was there a reasonable means of safe retreat available to the defendant? an analysis under the act would only ask the first question. under common law, the michigan supreme court declined to extend the castle doctrine to encompass riddle’s driveway, thus implicating the duty to retreat, if feasible. whether riddle had a safe avenue of retreat available to him would be a determining factor in considering riddle’s culpability. on these facts, there is a convincing argument to be made that riddle could have safely retreated. the events took place just outside riddle’s house. he presumably had a “home-field advantage,” in that he knew the layout of his home and neighborhood better than carter. riddle also had time to procure his rifle and shoot carter before carter threatened him with any force, and one could assume that in this timeframe he could have entered his house (or garage) and locked the door behind him. thus, under the common law, there is a strong possibility that riddle would have been convicted on the grounds that he needlessly exercised deadly force against carter.44 under current michigan law, the jury would not have considered whether riddle had the ability to safely retreat. instead, the focus would have been on whether riddle honestly and reasonably feared that he was at risk of being killed or suffering great bodily harm. the standard for reasonableness has been expressed as “what an ordinarily prudent and intelligent person would do on the basis of the perceptions of the actor.”45 many factors might enter this analysis, particularly since riddle and carter knew each other. the personal relationship between riddle and carter would likely be at the forefront of the jury deliberation, as riddle’s knowledge of carter’s propensity for violence would be a central question. a jury might be interested in evidence indicating whether carter had a short temper or was frequently involved in violent altercations. the jury might also want to know if carter owned a firearm, and, if he did, if he often carried it on his person. if the answer to any of those inquiries was affirmative and it was 41 id. 42 id. 43 for purposes of this exercise, the factual record will be deduced from riddle’s testimony. under billingsley’s account of the events, riddle would have no basis for a self-defense claim as he was never under any threat from carter. furthermore, the case will be analyzed on its merits, and not focused solely on the question of jury instructions. 44 riddle was convicted of second-degree murder; however, it is unclear if the jury based this on believing billingsley’s testimony or on finding a duty to retreat. 45 people v. guajardo, 832 n.w.2d. 409, 417 (2013). 60 on death’s doorstep vol. 5.1 demonstrated that riddle was aware of these traits, then that would encourage a jury to find riddle’s exercise of deadly force reasonable. other considerations might include whether carter was angry with or had threatened riddle (as riddle’s testimony indicated the argument was between carter and billingsley), and whether there was an opportunity for riddle to simply point the rifle at carter threateningly without actually firing. in order to demonstrate riddle’s reasonableness, the defense counsel would likely attempt to highlight any aggressive tendencies carter possessed and any past hostility between the two men. the requisite factual record to make such a determination was not presented in this case, but it is sufficient to note that the outcome of the case under the self-defense act would have been a heavily fact-dependent decision. thus, though carter was unarmed and riddle could have retreated to his house, there remains a serious possibility that riddle would have been acquitted. tweaking the facts of the case to create a scenario in which riddle and carter were strangers further illustrates the impact of the self-defense act. at common law, the retreat analysis would be unchanged; it would still appear likely that riddle had a safe avenue of retreat from carter. the reasonableness inquiry, however, would shift dramatically. if riddle had never met carter before, there would be far fewer facts from which a jury could find that riddle acted unreasonably. if riddle knew carter did not own a firearm or considered carter to be nonviolent, such information would weigh heavily in favor of a jury verdict that riddle’s exercise of deadly force was unreasonable. in the new factual scenario, however, these facts would not exist. on riddle’s testimony, all the jury would know would be that a stranger, carter, was aggressively arguing with billingsley, riddle saw a dark object in his hand, and, believing it to be a gun, shot carter to death. in this scenario, there would be a strong possibility of acquittal. many similarly situated selfdefense cases, such as the police shooting of amadou diallo in 199946 or the recent trial of george zimmerman outlined above, have resulted in the exoneration of the defendant on the grounds that the use of deadly force was reasonable. these results indicate that professor stephen garvey’s theory of selfdefense is often highly relevant to jury determinations: “[t]he beliefs we possess at any moment are not up to us . . . [t]he belief that . . . i am about to be killed, and deadly force is necessary to avoid being killed-is one that only a saint or a fool would ignore. an actor who believes that he is about to be killed could remain passive, but why should he? what good reason would he have to do nothing?”47 evaluating the reasonableness of a defendant on the basis of his or her perception of the situation is a standard that sets a high bar for a jury to find any self-defense action unreasonable. if a jury accepted riddle’s testimony that he saw a dark object in the hand of an aggressive stranger, it would be likely to find that employing deadly force was a reasonable response to that threat. there is one other factor that pervades the jury deliberation process: race. a study conducted by professors samuel sommers and phoebe ellsworth found that white jurors were more likely to show racial bias in cases that lacked overt racial issues—that is, a self-defense case in which riddle happened to be white and carter black as compared to a case in which riddle was an outspoken member of the aryan nation and carter was black.48 the study found that white jurors were more likely to find a black defendant guilty than a white defendant, recommend a harsher sentence for convicted black defendants, 46 four police officers fired 41 [as: spell out forty one] shots at and killed amadou diallo on the mistaken belief that he was an armed serial rapist. diallo reached into his jacket to produce his wallet, which the police officers mistook for a gun. diallo was unarmed. all four officers were acquitted of all charges. see jane fritsch, 4 officers in diallo shooting are acquitted of all charges, n.y. times, feb. 26, 2000 at a1. 47 stephen p. garvey, self-defense and the mistaken racist, 11 new crim. l. rev. 119, 126 (2008). 48 samuel sommers & phoebe ellsworth, white juror bias: an investigation of prejudice against black defendants in the american courtroom, 7 psychol. pub. pol'y & l. 201, 201-29 (2001). 2014 columbia journal of race and law 61 and rate the defense’s case for a white defendant as strong or stronger than for a black defendant even though the defense counsel’s examinations and arguments were identical in both scenarios.49 this study accords with similar experiments regarding implicit bias and perceptions of black criminality that will be discussed later in this note.50 the statutory elimination of the duty to retreat significantly increases the number of scenarios in which deadly force can be justifiably used. this legislative abrogation has enabled defendants to eschew safe avenues of retreat in favor of exercising deadly force, potentially changing a second-degree murder conviction in a case like riddle into an acquittal. this shift may encourage defendants such as riddle to stand their ground and not even consider the possibility of utilizing a safe avenue of retreat, thus leading to more erroneous self-defense shootings of unarmed aggressors. furthermore, the impact of implicit bias on jury deliberations may lead to serious inequities in the judicial system. if jurors subconsciously equate black men with criminality, and people, regardless of their race, are generally more likely to shoot an unarmed black man than an unarmed white man, then it seems reasonable to infer that the repeal of the duty to retreat will have effects that disparately impact blacks.51 the self-defense act removed an important check on the ability of an individual to lawfully kill another, a choice that is too often derived from misplaced stereotypes of black men. the legislative process that led to the enactment of the selfdefense act illustrates this sentiment, as support for the act was severely divided along race lines. iii. white guns, black graves: the racially disparate impact of the self-defense act stand your ground was codified in michigan on july 20, 2006 when then-governor jennifer granholm signed the self-defense package of legislation into law.52 this section will address multiple issues that arose from this lawmaking. first, it will reveal the troubling racial breakdown of supporters of this legislation. next, it will investigate if these laws are successful in deterring criminal behavior and explore the unintended consequences of the legislation. a. the legislative process of the self-defense act according to a national survey conducted by the pew research center, whites are disproportionately in favor of gun rights compared to people of color.53 63% of white men and 45% of white women (53% of responding whites) believe that protecting the right to own guns is more important than controlling gun ownership.54 by contrast, only 24% of blacks and 27% of hispanics favored the right to own guns.55 based on these numbers, the voting results for the self-defense act in the michigan senate are unsurprising. the act, then-house bill 5143, passed with tremendous bipartisan support in both the house and the senate. the house passed the legislation by a vote of 90-16,56 while the senate 49 id. at 219-20. 50 see, e.g., joshua correll et al., the police officer's dilemma: using ethnicity to disambiguate potentially threatening individuals, 83 j. personality & soc. psychol. 1314, 1314-29 (2002). 51 id. 52 ann arbor city council seeks repeal of ‘stand your ground’ law, minbcnews.com (aug. 09, 2013, 7:48 am), http://www.minbcnews.com/news/story.aspx?id=931824#.vfb6o4dzie4. 53 pew research center, in gun control debate, several options draw majority support, (jan. 14, 2013), http://www.people-press.org/files/legacy-pdf/01-14-13%20gun%20policy%20release.pdf. 54 id. at 9. 55 id. 56 2005 house bill 5143: repeal ‘duty to retreat in self-defense’, http://www.michiganvotes.org/rollcall.aspx?id=200656 (last visited dec. 16, 2013). 62 on death’s doorstep vol. 5.1 voted 28-10 in favor of the law.57 these numbers, however, are misleading. though michigan is approximately 14.2% black,58 which is slightly higher than the proportion of black americans nationally,59 the black population is highly concentrated in a few areas such as detroit.60 blacks thus lack significant political clout outside of detroit. this segregation was illuminated by the vote on the stand your ground legislation. though the vote had significant bipartisan support, in reality the vote was highly racially stratified. in the senate, no senator representing a district with a greater than 17.4% black constituency voted in favor of the act.61 democratic senators hansen clarke, buzz thomas iii, burton leland, martha scott, and irma clarkecoleman each were elected by districts with a majority black population and all voted against the act.62 every senator voting in favor of the act represented a constituency that was at least 69% white.63 furthermore, the districts of twenty-five of the twenty-eight senators that supported the act were over 80% white.64 clearly, the michigan polity was split along racial lines with respect to this legislation; blacks were largely against the act and whites supportive of it. this dichotomy is significant because, as will be shown below, white michiganders were creating policy for an issue that disproportionately affects black michiganders. these numbers are particularly compelling when one considers the impact of firearms on public safety in michigan. in february 2006, a few months before the self-defense act was signed into law, the michigan department of community health released a study regarding firearm homicide and suicide in michigan. the study focused on data from the years 1999-2003, and found that firearms were used in 71% of michigan homicides during this time period. this reveals that more often than not, stand your ground cases will implicate firearm usage.65 the study also found that blacks were victimized by firearm homicide at a rate of twenty times that of whites, and that black males between the ages of 20-24 had a firearm homicide rate that was 34 times the overall rate.66 furthermore, while the firearm homicide rate of those living in the predominantly black detroit was 32.5 deaths per 100,000 residents, every other county in the state (with the exception of wayne county) possessed a rate of fewer than seven deaths per 100,000 residents.67 this data is extremely troubling, as it demonstrates that the black community suffers from firearm homicides at a disproportionately higher rate than white michiganders. using the center for disease control and prevention’s wisqars program shows that this trend continued through 2007 (the final year of wisqars data for michigan). between 2004-2007, the leading 57 project vote smart, hb 5143 – ‘self defense act’ – voting record (june 6, 2006), http://votesmart.org/bill/votes/5214?s=vote. 58 u.s. census bureau, profile of general population and housing characteristics: 2010, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk (last visited dec. 16, 2013) (both the 2000 and 2010 census report michigan’s black population to be 14.2%). 59 u.s. census bureau, state and county quick facts, michigan, http://quickfacts.census.gov/qfd/states/26000.html (last visited dec. 16, 2013) (hereinafter “census quick facts”). 60 mich. dep’t of tech., mgmt. and budget, demographic profiles for michigan from the 2010 census, http://www.michigan.gov/cgi/0,4548,7-158-54534_51841_51848-255807--,00.html (last visited dec. 16, 2013). 61 id. 62 id. 63 id. 64 id. 65 thomas w. largo & linda scarpetta, firearm homicide and suicide in michigan, mich. dep’t of cmty. health (feb. 2006), available at https://www.michigan.gov/documents/firearm_homicide__suicide_report_162746_7.pdf. 66 id. 67 id. 2014 columbia journal of race and law 63 cause of violent death for blacks in michigan was overwhelmingly firearm homicide. there were 1,600 black firearm homicide victims in the state during these years; the next most common form of violent death, firearm suicide, was a distant second with only 171 of these occurring in the black community.68 in the white community, however, firearm homicide was only the fourth most frequent cause of violent death during this time period, trailing three types of suicide (firearm, suffocation, and poisoning). the overwhelmingly most common cause of violent death in the white community during this time was firearm suicide—there were 2,038 firearm suicides as compared to 404 firearm homicides.69 these numbers are particularly concerning when one considers that there are roughly 7.8 million whites in michigan and only 1.4 million blacks.70 thus, though whites outnumber blacks by a rate of approximately five and a half to one, the number of blacks killed by gun violence is nearly four times as high—from 2004-2007, blacks were shot to death at a rate 22 times higher than whites. another important statistic to consider is the violent crime rate in the state. michigan’s violent crime rate in the 2000’s is relatively low compared to previous decades, and approximately tracks the national trends (though michigan’s rate is consistently higher than the national average). between 1990 and 2003, the firearm homicide rate in michigan declined by 41%.71 additionally, in 1990 the violent crime rate in michigan was 790.4 per 100,000 residents, and declined to 553.8 by the time the act was introduced in 2005.72 it is noteworthy, however, that the violent crime rate in the state climbed from 492.2 in 2004 to 553.8 in 2005, which helps to explain some of the impetus for the legislation. this number, however, still represents a lower figure than any violent crime rate in michigan between the years 1970 and 2002.73 even this small jump in the violent crime rate thus does not explain the sudden (and nationwide) call for enhanced stand your ground legislation. it is strange that this overwhelming popularity of stand your ground measures came at a relatively low-crime time in the state. it is even more curious that the districts that were most supportive of the act were some of the safest in the state, while the area most affected by violent crime, detroit, was opposed to the legislation. an interview with the drafter of the legislation, then-representative rick jones (r-71st district), offers insight into the process of conceptualizing the act. at the time of the bill’s introduction, jones served as the representative for eaton county. when asked to describe the demographics of the area, jones stated that: eaton county is made up of a large agricultural, rural area, but also a large urban area near lansing. it is a mix of racial makeup. the major employers are general motors, michigan state, and the state government . . . other major employers would be like auto owners insurance . . . and bluecross has some offices. so you’re talking a lot of people working in that industry also. gun owners, i don’t have any statistics in front of me but i would say that probably it’s very high—the households that have some sort of firearm for hunting or home protection or something like that.74 68 wisqars, fatal injury reports, 1999-2010, for national, regional, and states, http://webappa.cdc.gov/cgibin/broker.exe (last visited december 16, 2013). 69 id. 70 census quick facts, supra note 59. 71 largo & scarpetta, supra note 65. 72 michigan crime rates 1960-2012, the disaster center, http://www.disastercenter.com/crime/micrime.htm (last visited december 16, 2013). 73 id. 74 interview with rick jones, state senator of michigan (nov. 22, 2013). 64 on death’s doorstep vol. 5.1 though technically true, this assessment is misleading. the above account of the demographics of eaton county, michigan implies that it is home to a fair amount of diversity. in reality, however, eaton county is largely a middle-class, white district. as of 2012, 88.6% of the residents of eaton county self-identified as white, while only 6.8% of residents self-identified as black.75 the median income is slightly over $54,000, which is close to $6,000 above the statewide median, but only 3.4% of businesses are owned by blacks.76 thus, unsurprisingly, the self-defense act originated in a predominantly white and economically stable district of michigan. furthermore, when asked whether eaton county represented a high crime district, jones conceded: “i would say eaton county, as far as the crime rate when compared with the rest of the state, would be fairly low. we do have some high crime areas [and] that would be detroit and flint and saginaw and pontiac, but i would say eaton county is fairly low in comparison.”77 therefore, not only did the legislation originate in a largely white district, the bill’s drafter acknowledges that the area is relatively safe. meanwhile, many of the senators that voted against the act represented constituents in detroit and flint, identified as two of the highest crime cities in the state. the discord in this correlation is evident; intuitively, one would imagine that support for enhanced self-defense protections would manifest in more dangerous areas. these numbers reveal a racial divide behind the enactment of the self-defense act. though superficially the laws received widespread support, the statistics belie the fact that support for the legislation was extremely split along racial lines. despite being victimized by firearm homicide at vastly disproportionate rates, black residents of michigan were strongly against the act. whites, on the other hand, were enthusiastically supportive of the laws even though they were relatively infrequently the victims of violent crime. since the basis of the act was to enable individuals to better defend themselves against violent crime, it would seem intuitive that those who suffer the most from violence, blacks, would be more supportive of the law. the opposite occurred, however, as the most crime-ridden communities in the state were the only groups to vote against the bills’ passage. the dissonance in this phenomenon is obvious. the demographic most plagued by violence is also the group whose wishes are ignored in reforming selfdefense doctrine, and relatively crime-free white communities are empowered to craft policies that are particularly dangerous for and unwanted by blacks. b. implicit bias and the consequences of stand your ground renisha mcbride is dead. at approximately 2:00am on november 2, 2013, mcbride was in a car accident. 78 she approached a home in dearborn heights, michigan, a community that as of the 2010 census was 86.1% white.79 mcbride was not in possession of her cell phone and knocked on the door of the home. she was seeking assistance after the car accident. the homeowner opened the door, armed with a shotgun. he aimed the gun at mcbride’s face. the facts after this are in dispute. the homeowner claims the gun fired accidentally, while others question how a gun could fire accidentally without a finger on the trigger. what is known is that renisha mcbride, a 19-year old, unarmed black woman, a high school 75 census quick facts, supra note 60. 76 id. 77 interview with rick jones, supra note 75. 78 gus burns, warrant review underway in the dearborn heights shotgun killing of renisha mcbride, michigan live (nov. 11, 2013), http://www.mlive.com/news/detroit/index.ssf/2013/11/warrant_review_underway_in_the.html. 79 census quick facts, supra note 59. 2014 columbia journal of race and law 65 graduate and an aspiring law enforcement officer is dead,80 and that a 54-year old white man killed her.81 at the time, there was question of whether the family would receive either criminal or civil justice due to the self-defense act. the homeowner’s lawyer, cheryl carpenter, claimed that she was “confident [that] when the evidence comes it will show that [her] client was justified and acted as a reasonable person would who was in fear for his life.”82 ultimately, wafer was convicted of second-degree murder, manslaughter, and a felony weapons charge and sentenced to a minimum of seventeen years in prison.83 this result, though a just outcome, will not bring mcbride back. the renisha mcbride case is tragic. unfortunately, however, it is not unsurprising in light of the social psychological literature regarding implicit bias and subconscious stereotyping. there are numerous studies illustrating americans’ propensity to associate blackness with criminality and negativity. one notable example of this is an experiment conducted in the department of psychology at washington university of st. louis.84 in the study, 97 non-black participants were divided into three groups. participants were tasked with viewing a series of pictures and determining whether the object depicted was a “gun” or a “tool.” before each depiction of a gun or tool, participants were shown a picture of either a white or black face. one group was told to actively ignore the race of the picture in its assessment of whether the object was a gun or a tool. another group was instructed to engage in racial profiling, and thus actively use race as a factor in determining whether the object was a gun or a tool. a final group was given no instructions regarding race, and was only told that they would be shown a picture of a face followed by a picture of a gun or a tool.85 this study found that participants were more likely to misidentify a tool as a gun after seeing a black face, and were more likely to misidentify a gun as a tool after seeing a white face.86 furthermore, the results indicated that the only way to decrease the prevalence of racial stereotyping was to increase the amount of time to process the pictures—as processing time decreased, stereotypical errors increased.87 clearly, this study has significant implications regarding stand your ground legislation. individuals invoking stand your ground as a justification to exercise deadly force against another presumably do not have ample time to process the situation before determining whether or not to fire a gun. thus, this study’s findings suggest that those using deadly force in selfdefense are more likely to misperceive a threat when the “aggressor” is black rather than white. joshua correll conducted another highly relevant study to stand your ground legislation. the researchers developed a simplistic videogame depicting black and white young men holding a gun, a wallet, an aluminum can, a cellphone, or a camera. to play the game, the participants were instructed to decide as quickly as possible whether the man depicted was holding a gun or another object. if he was holding a gun, they had to push the right button labeled “shoot.” if he was holding another object, they had to push 80 burns, supra note 78. 81 elisha anderson & gina damron, new details emerge on renisha mcbride’s accident in hours before her slaying, detroit free press (nov. 12, 2013), http://www.freep.com/article/20131111/news02/311110088/renishamcbridge-autopsy. 82 crimesider staff, renisha mcbride update: shooting of mich. teen who was reportedly seeking help after accident sparks outrage, cbs news (nov. 8, 2013), http://www.cbsnews.com/8301-504083_162-57611475-504083/renishamcbride-update-shooting-of-mich-teen-who-was-reportedly-seeking-help-after-accident-sparks-outrage/. 83 mary m. chapman, theodore wafer sentenced to 17 years in michigan shooting of renisha mcbride, n.y. times (sept. 3, 2014), http://www.nbcnews.com/news/us-news/renisha-mcbride-killer-gets-minimum-17-years-prisonn194366. 84 b. keith payne et al., best laid plans: effects of goals on accessibility bias and cognitive control in race-based misperceptions of weapons, 38 j. experimental soc. psychol. 384, 388 (2002). 85 id. 86 id. at 389. 87 id. at 391. 66 on death’s doorstep vol. 5.1 the left button labeled “don’t shoot.”88 the study employed a points system attempting to simulate the real-life stakes of self-defense. participants received ten points for correctly shooting an armed target and five points for correctly refraining from shooting. they were penalized twenty points for shooting an unarmed target, but penalized forty points for failing to shoot an armed target.89 the justification for this scoring system was that while it is a terrible mistake to shoot an unarmed target, it is a greater concern to ensure one’s own safety.90 the results of this study were troubling. participants shot at an armed target more quickly if he was black as opposed to if he were white, and decided not to shoot an unarmed target more quickly if he was white as opposed to if he were black.91 furthermore, errors were made increasingly as the processing time decreased. participants mistakenly shot unarmed targets more frequently when the subject was black, and failed to shoot an armed target more frequently when the subject was white. more detailed analysis revealed that if a target was black, participants required less certainty he was holding a gun before deciding to shoot him.92 the findings were not limited to white participants: both blacks and whites demonstrated this “shooter bias effect” in favor of white targets.93 the significance of these findings to stand your ground cases is apparent. the increased likelihood of individuals to shoot unarmed blacks rather than unarmed whites indicates that, in a heat-of-the-moment decision, an individual using deadly force in self-defense is significantly more likely to perceive a black person as dangerous. there are numerous other studies that reinforce these propositions. for instance, there have been studies demonstrating that participants associate blackness with criminality,94 and that whites are more likely to associate black faces with hostility than white faces.95 a leading method of studying racial stereotypes is the implicit association test (iat). in these studies, participants are told to press one key if they saw either a “white-sounding” name or a positive word, and another key if they saw either a “blacksounding” name or a negative word.96 they then repeated this process, but this time linked black-sounding names and positive words and vice versa. there have been millions of iats conducted, and 75% of those who have taken the race iat have shown an implicit bias in favor of whites.97 these experiments reveal the disturbing reality that blacks are far more likely than whites to be misperceived as threats. this has frightening implications for stand your ground legislation. though many americans believe we have entered a post-racial society, the notion that race is no longer a significant factor in american life and that individuals should see the world through a color-blind lens, these studies show that this narrative is a fiction.98 unfortunately, race remains of paramount importance in american society, and the racial divide in the stand your ground debate is unsurprising. it is entirely logical for blacks to be opposed to this legislation. as these experiments illustrate, “shoot-first” laws can have tragic consequences for the black 88 correll, supra note 50, at 1316. 89 id. at 1317. 90 id. 91 id. 92 id. at 1325. 93 id. 94 jennifer l. eberhardt et al., seeing black: race, crime, and visual processing, 87 j. personality & soc. psychol. 876, 889 (2004). 95 kurt hugenberg & galen v. bodenhausen, facing prejudice: implicit prejudice and the perception of facial threat, 14 psychol. sci. 640, 643 (2003). 96 anthony g. greenwald et al., measuring individual differences in implicit cognition: the implicit association test, 74 j. personality & soc. psychol. 1464, 1473-74 (1998). 97 cynthia lee, making race salient: trayvon martin and implicit bias in a not yet post-racial society, 91 n.c. l. rev. 1555, 1571 (2013). 98 eduardo bonilla-silva, racism without racists: color-blind racism and the persistence of racial inequality in the united states 1 (3d ed. 2010). 2014 columbia journal of race and law 67 community that whites who preach colorblindness fail to realize. if renisha mcbride were white, it would be far more likely that she would be alive today. iv. dialogue not diatribe: the gun rights debate in a post-racial society the trayvon martin and renisha mcbride shootings catalyzed furious debate over the role of race in american society. protesters across the country gathered to demand justice for the victims, alleging that both deaths were caused by racism.99 the trayvon martin tragedy spawned the “i am trayvon martin” movement, with thousands of americans demonstrating their sympathy for and solidarity with the victim and his family.100 in the aftermath of the renisha mcbride shooting, activists questioned whether the response by law enforcement officials would have been more immediate and punitive if the shooter had been a black man and the victim a white woman.101 one protester observed: “it’s amazing that in 2013, we still see the lack of value of african american life.”102 state representative rashida tlaib (democrat – detroit) declared: “racism is so alive.”103 even president obama expressed his dismay with the situation in racialized terms, noting, “if i had a son, he’d look like trayvon.”104 clearly, race has been at the forefront of the stand your ground controversy. due to the racial disparities in voter support for the legislation and the stereotypic link between blacks and criminality, the salience of race in the debate is unsurprising. 105 though the courage of activists to openly confront explosive issues of race is laudable, the approach has been largely unsuccessful. in order to defeat disparate impact legislation in a post-racial society, the narrative surrounding the legislative process must shift away from accusations of racism and towards an empathy centered on the tragic consequences of death. this section will first consider the significant role of the national rifle association (nra) in the passage of stand your ground legislation. a discussion of the nra is imperative to the task of formulating advocacy strategies opposed to stand your ground laws, as any attempt to effect repeal of such legislation would be met by strong opposition from the nra. this section will next chart the proliferation of race-centric critiques of stand your ground laws. lastly, it will propose a new model for advocacy focused on emphasizing the destructive effects that the deaths of the victims of stand your ground laws have on their families and communities. a. the nra’s influence there are many potential reasons for the recent proliferation of stand your ground legislation. one factor, however, is undisputed—the influence of the national rifle association (nra). this section will examine the impact of the nra’s lobbying efforts. first, however, it is important to disclaim that the michigan self-defense act was not proposed as a result of nra action. the act’s drafter, senator rick 99 see, e.g., khalil alhajal, renisha mcbride demonstrators ask: what if she were a white woman shot by a black man?, mlive (nov. 7, 2013), http://www.mlive.com/news/detroit/index.ssf/2013/11/renisha_mcbride_demonstrators.html; mallory sofastaii, trayvon martin case provokes justice and race debate, pbs (july 26, 2013), http://www.pbs.org/newshour/extra/2013/07/trayvon-martin-case-provokes-justice-and-race-debate/; edward upright & zachary faginson, trayvon martin’s parents lead protests over zimmerman verdict, reuters (july 20, 2013), http://www.reuters.com/article/2013/07/20/us-usa-florida-shooting-idusbre96j03w20130720. 100 kim segal, protestors declare ‘i am trayvon martin,’ but who was he?, cnn (mar. 30, 2013), http://www.cnn.com/2012/03/30/us/trayvon-martin-profile/. 101 alhajal, supra note 100. 102 id. 103 oralandar brand-williams, hundreds rally to protest the shooting of renisha mcbride, the detroit news (nov. 9, 2013), http://www.detroitnews.com/article/20131109/metro01/311090046. 104 sam stein, obama on trayvon martin case: ‘if i had a son, he’d look like trayvon’, the huffington post (mar. 23, 2012), http://www.huffingtonpost.com/2012/03/23/obama-trayvon-martin_n_1375083.html. 105 lee, supra note 98, at 1561. 68 on death’s doorstep vol. 5.1 jones, noted, “my motivation, at the time, came from 31 years of experience in police work . . . i think there were a number of groups out there that were pushing the legislation when it got passed in other states . . . i’ve been asked by the media numerous times: ‘did the nra come to you with this idea?’ no, they didn’t. i did it on my own. i wrote it [and] i came up with the idea.”106 though then-representative jones insists that the nra did not influence him, the organization has played a prominent role in implementing stand your ground legislation across the nation. in a conversation with a representative from democratic michigan state senator steve bieda’s office (9th district), it was asserted that the nra has a substantial presence in michigan state government.107 the aide also noted that due to the two-term limit in the michigan senate, lawmakers do not have enough time to entrench themselves in office and thus may be more beholden to special interest groups.108 it is sensible for state legislators to garner support from the nra and other powerful lobbying groups, since backing from those organizations can help senators ensure a brighter political future for themselves. the reported nra presence in the michigan state house is in accord with reports of other states. the organization was massively influential in crafting and passing the nation’s first stand your ground law in florida.109 after the florida bill’s passage, nra ceo wayne lapierre proclaimed it was the “first step of a multi-state strategy. there’s a big tailwind we have, moving from state legislature to state legislature. the south, the midwest, everything they call ‘flyover land.’”110 the campaign has been wildly successful, as around half of the states now have some form of expanded castle doctrine codified into their state codes.111 the nra issued a statement hailing the passage of the michigan self-defense act, referring to the legislation as “a package of six self-defense bills backed by the national rifle association.” 112 additionally, the organization continues to post information on its website about the status of the act, and urges its members to contact local officials and express support for keeping the law on the books.113 regardless of the nra’s initial impact in inspiring then-rep. jones to draft the legislation, it is evident that any push to repeal the law will be bitterly contested by the nra. this is extremely significant for the fate of stand your ground legislation, as the nra wields tremendous political influence. the group has upwards of four million members,114 and brings in annual revenues of over $200 million.115 the nra is not shy about utilizing its finances in political lobbying. in 2012, the organization spent $32 million 106 interview with rick jones, supra note 74. 107 interview with senator steve bieda’s office (nov. 7, 2013). 108 id. 109 michelle jaffe, up in arms over florida's new ‘stand your ground’ law, 30 nova l. rev. 155, 179 (2005). 110 adam weinstein, how the nra and its allies helped spread a radical gun law nationwide, mother jones (june 7, 2012), http://www.motherjones.com/politics/2012/06/nra-alec-stand your ground. 111 erica goode, n.r.a.’s influence seen in expansion of self-defense laws, n.y. times (apr. 12, 2012), http://www.nytimes.com/2012/04/13/us/nra-campaign-leads-to-expanded-self-defenselaws.html?pagewanted=1&_r=0. 112 nra-ila, nra-backed castle doctrine bills become law in michigan (july 20, 2006), http://www.nraila.org/news-issues/news-from-nra-ila/2006/nra-backed-castle-doctrine-bills-beco.aspx. 113 nra-ila, michigan: oppose anti-self-defense resolution before washtenaw county board of commissioners (sept. 27, 2013), http://www.nraila.org/legislation/state-legislation/2013/9/michigan-oppose-anti-self-defense-resolution-beforewashtenaw-county-board-of-commissioners.aspx. 114 see katie glueck, nra: 100,000 new members after sandy hook shooting, politico (jan. 10, 2013), http://www.politico.com/story/2013/01/nra-100k-new-members-after-sandy-hook-86001.html; but see josh harkinson, does the nra really have 4 million members?, mother jones (jan. 14, 2013), http://www.motherjones.com/mojo/2013/01/nra-membership-numbers. 115 peter robison & john crewdson, nra raises $200 million as gun lobby toasters burn logo on bread, bloomberg (dec. 29, 2011), http://www.bloomberg.com/news/2011-12-29/nra-raises-200-million-as-gun-lobbytoasters-burn-logo-on-bread.html. 2014 columbia journal of race and law 69 on federal elections alone.116 the nra has also demonstrated a willingness to significantly contribute to state issues. for instance, the group was outspoken in its support for recalling two democratic colorado state legislators who voted in favor of gun-control legislation that centered on requiring universal background checks for all firearm sales and limiting on high-capacity magazines to a maximum of 15 rounds. the nra spent over $350,000 in its successful effort to depose the two state senators,117 and in the process sent a clear message to gun-control advocates that they would be met by powerful opposition should they continue to vote against the pro-gun agenda.118 in fact, the nra’s lobbying has been so effective that it has largely muted even the most prominent politicians. david axelrod, a former senior advisor to president obama, described president obama’s views on gun-control during his first term: “his view was never that we shouldn’t move on these things. his view was that such moves would be largely symbolic because of the power of the gun lobby to stop them.”119 while president obama increased his support for gun-control legislation after the shootings in newtown, connecticut,120 not even a tragedy of such epic proportions could halt the nra’s momentum.121 with its massive membership and funding and its entrenched political identity, the nra represents a formidable opponent to those who would like to repeal stand your ground legislation. the nra, however, is not omnipotent. though it boasts roughly five million members, that number constitutes less than two percent of the american populace. furthermore, most americans favor some form of gun control.122 notably, despite nra opposition to universal background checks, approximately 91 percent of americans, including 74 percent of nra members, are in favor of such measures.123 additionally, most american households do not include a gun owner.124 these statistics indicate that the nra, though financially strong, is politically vulnerable. in order to combat the proliferation of stand your ground legislation, the discourse surrounding these laws must change. the remainder of this section will propose a new perspective on stand your ground advocacy centered on empathy and victimization, an approach that would signify a break from the race-based adversariality that currently dominates the debate. 116 chris cillizza, how the nra spent $32 million on politics in 2012, the washington post (jan. 30, 2013), http://www.washingtonpost.com/blogs/the-fix/wp/2013/01/30/how-the-nra-spent-32-million-in-2012/. 117 andrea rael, nra donates more than $350,000 to colorado recall effort of democrats who supported gun laws, the huffington post (sept. 4, 2013), http://www.huffingtonpost.com/2013/09/04/nra-coloradorecall_n_3866397.html. 118 nra-ila, total recall: colorado lawmakers ousted in historic vote (sept. 13, 2013), http://nraila.org/legislation/state-legislation/2013/9/total-recall-colorado-lawmakers-ousted-in-historic-vote.aspx. 119 tim dickinson, the nra vs. america, rolling stone (jan. 31, 2013), http://www.rollingstone.com/politics/news/the-nra-vs-america-20130131?page=3. 120 tom cohen, obama: ‘shame on us’ if newtown doesn’t bring new gun laws, cnn (mar. 29, 2013), http://www.cnn.com/2013/03/28/politics/obama-guns/. 121 tony dokoupil, almost a year after newtown, does anyone care about gun control anymore?, nbc news (oct. 4, 2013), http://usnews.nbcnews.com/_news/2013/10/04/20821070-almost-a-year-after-newtown-does-anyone-careabout-gun-control-anymore. 122 alex seitz-wald, no, really, americans support gun control, salon (jan. 31, 2013) http://www.salon.com/2013/01/31/no_really_americans_support_gun_control/. 123 scott clement, 90 percent of americans want expanded background checks on guns. why isn’t this a slam dunk?, the washington post (apr. 3, 2013), http://www.washingtonpost.com/blogs/the-fix/wp/2013/04/03/90-percentof-americans-want-expanded-background-checks-on-guns-why-isnt-this-a-political-slam-dunk/; scott clement, obama: overwhelming majorities support background checks, the washington post (feb. 12, 2013), http://www.washingtonpost.com/blogs/post-politics/wp/2013/02/12/obama-overwhelming-majorities-supportbackground-checks/; q: would you support or oppose a law requiring background checks on people buying guns at gun shows?, the washington post (apr. 12, 2013), http://www.washingtonpost.com/page/20102019/washingtonpost/2013/03/12/national-politics/polling/question_10030.xml. 124 guns poll, gallup, http://www.gallup.com/poll/1645/guns.aspx#1 (last visited dec. 16, 2013). 70 on death’s doorstep vol. 5.1 b. the problems with accusations of racism many americans assert that the united states, especially with the election of president obama, has entered into a post-racial state.125 post-racial politics are synonymous with “color-blind racism,” in which whites claim they do not acknowledge skin color in order to avoid discussions of race and white privilege.126 the argument supporting post-racialism is that if a black man can achieve the most powerful and prestigious office in the country, then the vestiges of past racism have been rectified and america has become truly equal.127 a 2012 newsweek/daily beast poll verified the prevalence of this color-blind philosophy, as 60% of blacks considered racism to be a “big problem” in america while only 19% of whites shared this view.128 furthermore, 70% of whites believed that blacks had equal access to housing and jobs, and expressed far greater confidence that the criminal justice system treated blacks and whites equivalently.129 notwithstanding the idealistic color-blind rhetoric, racism remains prevalent throughout american institutions and causes disparate access to jobs, education, and housing.130 the fact that many whites can ignore the impact of race despite its manifestation in so many fundamental elements of society presents an ominous sign to those who would critique stand your ground laws as racist. though that analysis may be accurate, the unfortunate reality is that many americans subscribe to color-blindness and thus recoil at the suggestion that legislation they supported has a racially disparate effect. the vastly different reactions to the trial of george zimmerman by whites and blacks illustrate how post-racialism colors the discussion of stand your ground laws. according to a poll conducted by the pew research center, 30% of white americans expressed dissatisfaction with zimmerman’s acquittal.131 by contrast, a whopping 86% of black americans disagreed with the verdict.132 an abc news/washington post poll found similar results, and added that while 81% of blacks favored filing federal civil rights charges against zimmerman, just 27% of whites shared this view.133 finally, while 78% of blacks believed the case raised important issues of race that need to be discussed, 60% of whites felt that race was getting too much attention.134 these statistics exhibit the problem of highlighting race in the political discourse; too many white americans view conflict through a post-racial lens, causing them to respond negatively to race-centric critiques of social policy. additionally, many of the influential proponents of stand your ground law, including representatives of the nra, hold positions that are openly hostile towards inserting race into the debate. 125 ian f. haney lopez, is the “post” in post-racial the “blind” in colorblind?, 32 cardozo l. rev. 807 (2011) (observing that after the election of president obama, pundits have professed that america has entered into a post-racial state). 126 bonilla-silva, supra note 98 at 53-54. 127 roy l. brooks, making the case for atonement in post-racial america, 14 j. gender, race & just. 665 (2011) (noting that the election of the first black president has caused commentators to proclaim america to be post-racial). 128 newsweek/dailybeast poll, the daily beast, available at http://www.thedailybeast.com/content/dam/dailybeast/2012/04/06/newsweek_dailybeast_race_in_america_surve y.pdf (last visited dec. 16, 2013). 129 id. 130 mario l. barnes, et al., a post-race equal protection?, 98 geo. l.j. 967, 982–93 (2010); trina jones, antidiscrimination in peril?, 75 mo. l. rev. 423, 427 (2010). 131 pew research center, big racial divide over zimmerman verdict, (july 22, 2013), http://www.peoplepress.org/2013/07/22/big-racial-divide-over-zimmerman-verdict/. 132 id. 133 vast racial gap on trayvon martin case marks a challenging conversation, abc news/washington post (july 22, 2013), http://www.langerresearch.com/uploads/1150a1themartinzimmermancase.pdf. 134 pew research center, supra note 131. 2014 columbia journal of race and law 71 when asked to conjure up an image of the stereotypical nra member, one likely thinks of a white male. though the nra does not release its membership demographics, logic suggests this would be the case. as outlined above, people of color are disproportionately in favor of gun control measures and are less likely to be gun owners. furthermore, black nra member rick ector noted that, at the nra national convention in st. louis, the crowd was overwhelmingly white: “by my own personal accounting, i met twelve (12) black persons in attendance . . . i may have missed a few but not many. previously, i had attended the 2010 meeting in charlotte. sadly, i must report that both aforementioned events lacked significant participation by black people.”135 considering the extreme rhetoric espoused by leading figures in the nra, the lack of blacks in the group is unsurprising. charlton heston, in a speech given in his capacity as nra vice president (he would later serve for five years as the organization’s president), explicitly linked gun rights with whiteness: the constitution was handed down to guide us by a bunch of those wise old dead white guys who invented this country. now, some flinch when i say that. why? it's true...they were white guys. so were most of the guys who died in lincoln's name opposing slavery in the 1860s. so why should i be ashamed of white guys? why is "hispanic pride" or "black pride" a good thing, while "white pride" conjures up shaved heads and white hoods? why was the million man march on washington celebrated in the media as progress, while the promise keepers march on washington was greeted with suspicion and ridicule? i'll tell you why: cultural warfare.136 heston’s invocation of “white pride” while representing the nra certainly does not send a strong message to people of color that they are valued by the organization. the nra’s new president, jim porter, has reaffirmed this message. in a speech given in upstate new york, porter told his audience that the nra was founded in new york state in 1871, by “some yankee generals who didn’t like the way my southern boys had the ability to shoot in what we call the ‘war of northern aggression.’ now, y’all might call it the civil war, but we call it the ‘war of northern aggression’ down south.”137 by referring to the civil war as the “war of northern aggression” and referring to confederate soldiers as “my southern boys,” porter sent a strong message of southern nostalgia, indicating that the nra is an organization designed to serve the interests of white people. it is hard to imagine that porter’s statements glorifying the confederacy would inspire african americans to join the nra in large numbers. it is equally unlikely that the nra, which considers itself to be “america’s longest standing civil-rights organization,”138 would concede that its policies disparately affect blacks. in responding to the trayvon martin controversy, chris cox, the executive director of the nra institute for legislative action (“nra-ila”), attacked attorney general eric holder’s address to the naacp which criticized stand your ground legislation: “the attorney general fails to understand that self-defense is not a concept, it's a fundamental human right. to send a message that legitimate self-defense is to blame is unconscionable, and demonstrates once again that this 135 rick ector, is the national rifle association an organization for black people, ammoland (apr. 24, 2012), http://www.ammoland.com/2012/04/is-the-national-rifle-association-an-organization-for-blackpeople/#ixzz2sj8lsxxn. 136 charlton heston, first vice president, nra, speech at the free congress foundation's 20th anniversary gala (transcript available online at http://www.vpc.org/nrainfo/speech.html). 137 john cassidy, the n.r.a.’s challenge to america, new yorker (may 7, 2013), http://www.newyorker.com/online/blogs/johncassidy/2013/05/jim-porter-and-the-nras-challenge-to-america.html. 138 national rifle association, http://home.nra.org/ (last visited dec. 16, 2013). 72 on death’s doorstep vol. 5.1 administration will exploit tragedies to push their political agenda."139 furthermore, nra executive vice president wayne lapierre blamed the media for sensationalizing the trayvon martin killing.140 the nra’s rebuke of the racialized treatment of the tragedy and its status as a group comprised largely of white conservatives illustrate that the organization will be unmoved by appeals to racism in discussions of stand your ground policy. an interview with michigan state senator rick jones provides further evidence that a race-centric critique of stand your ground laws is ineffective. when asked whether there had been backlash to the self-defense act in light of the trayvon martin and renisha mcbride shootings, senator jones stated absolutely not. my constituents still believe very much that you have the right to defend yourself from death, great bodily harm, or rape, and that you have an american right. [they] don’t want the law changed. i believe that the media purposefully stirred up the trayvon martin death; it was just outrageous. they were claiming race. i thought it was outrageous that many in the media were saying that [zimmerman] was caucasian when he was [actually] hispanic. i thought the media really blew that up.141 senator jones expressly rejects the notion that race had anything to do with the shooting of trayvon martin. jones ignores the fact that 78% of blacks felt the incident raised important issues of race in america and instead blamed the media for sensationalizing the story. the senator’s attitude towards the george zimmerman trial exhibits the limitations of asserting that certain conduct or legislation is driven by racism. subscribers to the post-racial ideology will dismiss the role of race as a construction of the “liberal media,”142 and it is clear from these reactions that bare allegations of racism in relation to stand your ground violence and legislation are ineffective. furthermore, the senator asserted that the shooter of renisha mcbride would almost certainly not be exonerated under the self-defense act, and that the law was wholly unrelated to the incident: when somebody does shoot, they don’t shoot thinking of any particular law. they don’t go shoot somebody and say “well i’ve got the right to shoot you because i read in the newspaper that the stand your ground 139 nra-ila, nra responds to attacks on stand your ground laws (july 19, 2013), http://www.nraila.org/legislation/federal-legislation/2013/7/nra-responds-to-attacks-on-stand your groundlaws.aspx. 140 matt gertz, nra’s lapierre responds to trayvon martin killing by attacking the media, media matters for america (apr. 14, 2012, 1:00 pm), http://mediamatters.org/blog/2012/04/14/nras-lapierre-responds-to-trayvonmartin-killin/183980. 141 interview with rick jones, supra note 74. 142 see, e.g., aaron rupar, rep. tony cornish blames ‘liberal media’ for hyping unrest following travyon martin verdict, city pages (july 15, 2013, 9:20 am), http://blogs.citypages.com/blotter/2013/07/rep_tony_cornish_blames_liberal_media_for_hyping_unrest_following_tr ayvon_martin_verdict.php; rem rieder, column: media got zimmerman story wrong from start, usa today (july 14, 2013, 10:47 pm), http://www.usatoday.com/story/news/nation/2013/07/14/zimmerman-trayvon-martin-nbc-news-columnrieder/2516251/ (reporting legislator’s effort to blame media for racializing fatal incident); media’s dishonest motives in trayvon martin case could end in riots, glenn beck (july 11, 2013, 2:49 pm), http://www.glennbeck.com/2013/07/11/medias-dishonest-motives-in-trayvon-martin-case-could-end-in-riots (blaming media for racializing incident). 2014 columbia journal of race and law 73 law allows me to do this.” that never enters their mind . . . i don’t think the law had anything to do with that shooting, absolutely nothing.143 senator jones rejected the premise that stand your ground legislation creates a shoot-first culture, and thus found that the act’s effectiveness could be accurately judged by the results of the judicial process— those whose actions are not justified under the self-defense act will simply go to jail. this assertion, however, is erroneous. one prominent counterexample to senator jones’ narrative is the shooting of two burglars in texas by joe horn. horn saw two men breaking into his next-door neighbors’ home and immediately called 911. during the 911 call, the operator instructed horn thirteen times to remain inside his home because police officers would be arriving soon.144 instead, horn responded by saying: “but i have a right to protect myself too, sir . . . . the laws have been changed in this country since september the first, and you know it.”145 the law referred to by horn was texas’ expansion of the castle doctrine, a change that included the abrogation of a duty to retreat.146 just as a plainclothes officer arrived at the scene, horn shot and killed both burglars, who were found with about $2,000 in cash and a pillowcase full of jewelry.147 a grand jury cleared horn of all charges.148 clearly, horn’s actions were at least partially motivated by his knowledge of the stand your ground legislation. further, a preliminary report by the american bar association’s national task force on stand your ground laws have found that the “data fails to bear out the crime deterrent/crime-reduction rationale espoused by proponents of stand your ground laws.”149 the report surveyed multiple empirical studies that found that stand your ground legislation had no deterrent effect on crime and may even lead to an increase in homicides.150 dr. jerry ratcliffe, the chair of the department of criminal justice at temple university, asserted that “[i]f our aim is to increase criminal justice system costs, increase medical costs, increase racial tension, maintain our high adolescent death rate and put police officers at greater risk, then this is good legislation.”151 the studies conducted thus far demonstrate that senator jones’ assertion, that the self-defense act plays no role in unjustified killing, is false. it is likely that many instances of stand your ground, including the shooting of renisha mcbride, would be deterred in the absence of the legislation. rather than feeling emboldened by the law to retrieve his shotgun and confront her on the porch, mcbride’s shooter may have simply called 911 and waited for the police behind the safety of his locked doors. although it is true that mcbride’s shooter was found guilty of murder, the conviction will not bring renisha mcbride back to her family. the key to curbing senseless tragedies is to act ex ante rather than ex post facto. the most obvious way to limit erroneous selfdefense shootings in the future is to eliminate the law altogether, as a return to the common law castle 143 interview with rick jones, supra note 74. 144 anderson cooper 360 degrees (cnn television broadcast nov. 19, 2007, 10:00 pm), (transcript available at http://transcripts.cnn.com/transcripts/0711/19/acd.01.html). 145 ralph blumenthal, shootings test limits of new self-defense law, n.y. times, dec. 13, 2007, http://www.nytimes.com/2007/12/13/us/13texas.html?_r=3&oref=slogin&. 146 id. 147 id. 148 brian rogers & dale lezon, joe horn cleared by grand jury in pasadena shootings, hous. chron. jun. 30, 2008, http://www.chron.com/neighborhood/pasadena-news/article/joe-horn-cleared-by-grand-jury-in-pasadena1587004.php. 149 american bar association, preliminary report and recommendations, 25, (aug. 8, 2014), available at http://www.abajournal.com/files/gunreport.pdf. 150 id. 151 amel ahmed, ‘stand your ground’ states see increase in homicides, al jazeera america (aug. 12, 2014), http://america.aljazeera.com/blogs/scrutineer/2014/8/12/stand-your-groundstatesseeincreaseinhomicides.html. 74 on death’s doorstep vol. 5.1 doctrine will encourage shooters to retreat to safety whenever possible and shoot only as a last resort. additionally, though the current opposition to stand your ground laws is driven primarily by allegations of racism, race-centric challenges to these acts have proven to be unsuccessful.152 the remainder of this section will propose a new approach to stand your ground advocacy grounded in empathy and the humanization of victims. c. an empathetic solution to stand your ground advocacy “racism” is an extremely charged word in post-racial america. as outlined earlier in this note, many white people subscribe to the idea of colorblindness, and allegations of racism upset this perspective. referring to the legislation as “racism” immediately puts its supporters on the defensive. rather than creating a dialogue between gun control and gun rights activists, blunt accusations of racism foreclose any possibility of productive intergroup compromise. as race theorist diane goodman observes, “when people are resistant, they are unable to seriously engage with the material. they refuse to consider alternative perspectives that challenge the dominant ideology that maintains the status quo. . . . resistance stems from fear and discomfort.”153 by leveling such harsh assertions against the legislation and those who support it, gun control activists are exacerbating the polarization of the debate. additionally, it is important for those contending that these laws are racist to recognize the complexity of white racial identity. as race theorist john hartigan jr. notes, there is no singular definition of whiteness, and differences within the white population impact discussions of race: “hence one critical tack to deconstruct whiteness involves recognizing the complex and emotionally charged contests over belonging and difference that engage whites intraracially. then recognize the important work these stereotypes perform in maintaining a prevailing image of whiteness as racially unmarked and removed from the blot of racism.”154 acknowledgment of one’s white privilege is often highly challenging. it requires significant self-reflection and the ability to accept that one’s successes did not stem solely from hard work but also from institutional advantage. baldly accusing stand your ground legislation of being racist leads to the insinuation that those who support such laws are racists. this strategy ignores the real culprit in instilling stereotypical associations of blacks with criminality and fostering a culture where racially disparate legislation is popular: american society and history. as race scholars stephanie wildman and adrienne davis point out, “[t]o label an individual a racist veils the fact that racism can only occur where it is culturally, socially, and legally supported. it lays the blame on the individual rather than the forces that have shaped that individual and the society that the individual inhabits.”155 rather than entrenching preexisting opinions regarding the merits of stand your ground legislation—which assertions of racism seem to cause—a better strategy would be for both sides to practice empathy and attempt to understand the other’s position rather than simply reject it. in his book, the 152 see, e.g., sean sullivan, four reasons why ‘stand your ground’ laws won’t be repealed, washington post (july 19, 2013), http://www.washingtonpost.com/blogs/the-fix/wp/2013/07/19/four-reasons-why-stand your ground-lawswont-be-repealed (discussing factors making repeal unlikely); bill cotterell, florida bid to repeal ‘stand your ground’ law fails, the huffington post (nov. 7, 2013, 10:54 pm), http://www.huffingtonpost.com/2013/11/08/stand your ground-repeal-fails_n_4237302.html (describing failed legislative efforts to repeal law). 153 diane j. goodman, promoting diversity and social justice: educating people from privileged groups 63 (2001). 154 john hartigan jr., who are these white people?: ‘rednecks,’ ‘hillbillies,’ and ‘white trash’ as marked racial subjects, in white out: the continuing significance of racism 111 (ashley w. doane ed., 2003). 155 stephanie m. wildman & adrienne d. davis, language and silence: making systems of privilege visible, 35 santa clara l. rev. 881, 887-88 (1995). 2014 columbia journal of race and law 75 magic of dialogue: transforming conflict into cooperation, daniel yankelovich aptly describes the importance of empathy: in the example of neighbors discussing school standards, if both the liberals and the conservatives in the group were less eager to fight for their convictions and more eager to grasp the other’s viewpoints, they might have been able to understand where their neighbors were coming from and why they felt the way they did. the gift of empathy—the ability to think someone else’s thoughts and feel someone else’s feelings—is indispensable to dialogue.156 donald mccormick expands upon this idea: perspective taking and empathy can be useful in a conflict. one study of community organizers found that they were more effective if they could sometimes empathize with the power figures they opposed. . . .we can become better citizens when we can imagine how it feels to be in all sorts of different roles that make up our society and the world. the skills of empathy and perspective taking can help us get along with people who are different from us—different in gender, social class, sexual orientation, race, culture or politics.157 an empathic approach to the stand your ground debate would enable both sides to understand each other, and would allow gun control advocates to illustrate the unfortunate consequences this legislation has had without vilifying its proponents. if the gun control side opted to empathize with the gun rights advocates instead of taking an adversarial position, the gun rights supporters would potentially be more amenable to achieving compromise. furthermore, if the gun rights advocates were confronted with dialogue rather than diatribe, they may be able to understand and acknowledge the racially disparate effect of stand your ground legislation. the discussion surrounding stand your ground laws should shift away from making race salient and towards the voices of the victims and their families. while racism is easy to deflect, particularly in a “post-racial” world, the tragic consequences of stand your ground laws cannot be denied. every victim is someone’s child, someone’s parent, or someone’s sibling. highlighting the devastating effects these deaths have on families and communities would create a dialogue surrounding these laws that everyone on both sides of the issue could relate to, and would help facilitate an environment in which these laws could be repealed. successful examples of this approach already exist and demonstrate how powerful the victim advocacy can be in effecting societal change. perhaps the most prominent illustration of this strategy is mothers against drunk driving (“madd”). candy lightner founded the organization in 1980 after her thirteen year-old daughter was killed by a repeat drunk driving offender.158 the grassroots organization united victims of drunk driving tragedies in a common cause to change the cultural perception of driving under the influence and effectuate more stringent traffic safety legislation across the country. as described in an article commemorating the twenty-fifth anniversary of the organization’s founding 156 daniel yankelovich, the magic of dialogue: transforming conflict into cooperation 43 (1999). 157 donald w. mccormick, listening with empathy: taking the other person’s perspective 60 (1999). 158 history of madd, madd, http://www.madd.org/about-us/history (last visited dec. 16, 2013). 76 on death’s doorstep vol. 5.1 madd blazed a trail that other organizations have since followed. they made hard, cold statistics come to life. they did not just say that drunk driving killed thousands and injured millions. they held up photographs – and described every nuance of their loved ones’ lives – to prove it. as a result, a mountain of traffic safety and victims’ rights legislation has been passed. annual alcohol-related traffic fatalities have dropped from an estimated 30,000 in 1980 to fewer than 17,000 today. and, perhaps most important, society no longer views drunk driving as acceptable.159 today, madd is active in all fifty states, as well as puerto rico and guam,160 and is widely recognized as a leading voice in the fight to end drunk driving.161 the gun control movement has begun to adopt some of these tactics through the group moms demand action for gun sense in america (“mdagsa”). shannon watts founded mdagsa in the wake of the shooting at sandy hook elementary in newtown, connecticut.162 the organization considers itself to be a “non-partisan grassroots movement of american mothers demanding new and stronger solutions to lax gun laws, loopholes and policies that for too long have jeopardized the safety of our children and families.”163 it emphasizes that it supports the second amendment right to bear arms, and lists universal background checks for purchases of guns and ammunition, bans on assault weapons that hold more than ten rounds, and policies at companies and public institutions that promote gun safety as a few of its primary objectives.164 mdagsa has grown rapidly—it reports over 100,000 members and chapters in every state.165 its most notable achievement occurred in september 2013, when starbucks capitulated to pressure from the group to change its policy regarding the carrying of weapons in its franchises. before the lobbying campaign, starbucks allowed customers to bring loaded weapons into its stores.166 though starbucks did not issue an outright ban on weapon possession, ceo howard schultz issued an open letter “respectfully requesting” that customers cease bringing firearms into starbucks franchises.167 this is a significant victory in the quest to change america’s gun culture, and demonstrates the impact of a group founded on the preservation of communities and families—an idea that both sides of a highly politicized debate can empathize with. a final example of the value of empathy in shaping gun policy is the story of sandy phillips. phillips’ daughter, jessica ghawi, was one of the twelve people murdered in aurora by james holmes in 159 laurie davies, 25 years of saving lives, madd (fall 2005), http://www.madd.org/aboutus/history/madd25thhistory.pdf. 160 goals and strategies, madd http://www.madd.org/about-us/madd-goals.html (last visited dec. 16, 2013). 161 see, e.g., steven p. grossman, hot crimes: a study in excess, 45 creighton l. rev. 33, 42 (2011) (discussing influence exerted by madd); kelsey p. black, note, undue protection versus undue punishment: examining the drinking and driving problem across the united states, 40 suffolk u. l. rev. 463, 480 (2007) (underscoring need to bolster penalties against drunk drivers). 162 shannon watts, a million moms against gun violence, the huffington post (jan. 21, 2013, 8:50 am), http://www.huffingtonpost.com/shannon-watts/million-moms-against-gun-violence_b_2519668.html. 163 moms demand action for gun sense in america, http://momsdemandaction.org/about (last visited dec. 16, 2013). 164 id. 165 id. 166 clare o’connor, starbucks ceo howard schultz tells customers to leave guns at home, forbes (sep. 18, 2013, 7:01 am), http://www.forbes.com/sites/clareoconnor/2013/09/18/starbucks-ceo-howard-schultz-tellscustomers-to-leave-guns-at-home. 167 howard schultz, an open letter from howard schultz, ceo of starbucks coffee company, starbucks (sep. 17, 2013), http://www.starbucks.com/blog/an-open-letter-from-howard-schultz/1268. 2014 columbia journal of race and law 77 2012. the tragedy spurred phillips and her husband, who owned a shotgun, to advocate on behalf of stricter gun laws; both currently work full-time for the brady campaign to prevent gun violence.168 in her capacity as a lobbyist, phillips met with then-house majority leader eric cantor: i had cantor in tears . . . when you start a conversation out and say: ‘you have a daughter. i had a daughter. would you like to see her killed the way mine was killed?’ and then you go into a description. cantor had his head down like he was saying, ‘i don’t want to hear this, i don’t want to hear this.’ and i said, ‘imagine if it’s your daughter pinned down with nowhere to go, and she gets shot six times, and the sixth one takes her brain.’ . . . i knew he didn’t want to be there, but he did listen.169 the fact that phillips’s story profoundly affected rep. cantor, who received an “a+” rating from the national rifle association political victory fund in 2012, exhibits the powerful influence empathy can wield in the political discourse. 170 rather than use her position in the brady campaign to vilify rep. cantor, phillips instead sought a dialogue with him where she was able to relate to him as a parent in order to convey the impact that gun violence has had on thousands of families across the country. going forward, this is the strategy that should be employed in order to effect the repeal of stand your ground legislation. although the gun control movement has begun to adopt a more empathic approach to advocacy, the current incarnations of this strategy will not alleviate the consequences of stand your ground laws on communities of color. the strides made by mdagsa are praiseworthy (if one is a gun control advocate, at least), but changing the open carry policy at starbucks will not bring back trayvon martin. universal background checks may be a sensible step in promoting safer gun ownership, but it would not have helped renisha mcbride, and there is no mention of stand your ground on the mdagsa website. by highlighting the mass shootings that have occurred, such as newtown and aurora, in her article describing the founding of the organization, shannon watts ignored the plight of black americans.171 every day it is blacks who have to worry about being gunned down in chicago and detroit, blacks who must fear being shot by the police, and blacks who are sentenced to death for wearing hooded sweatshirts and eating skittles. due to this emphasis on mass shootings, this note proposes that a new, narrower-focused gun control movement should emerge to combat the proliferation of stand your ground legislation. it is evident that the mainstream gun control movement is not focused on repealing stand your ground laws, and that the current, racially charged attacks on the legislation are ineffective. stand your ground opponents should thus fight the legislation on a narrow scope (that is, turn stand your ground into a single-issue campaign distinct from the larger gun control movement), while incorporating the empathic techniques used by groups like mothers against drunk driving and exemplified by sandy phillips’ conversation with rep. cantor. this may be achieved through the media, in the form of interviews with and op-eds by victims of stand your ground intended to humanize the issue, and by creating dialogue with community leaders, political figures, and powerful advocacy groups centered around the devastating 168 alec macgillis, this is how the nra ends, the new republic (may 28, 2013), http://www.newrepublic.com/article/113292/nras-end-real-gun-control-movement-has-arrived. 169 id. (quotations omitted). 170 the national rifle association political victory fund endorses eric cantor, eric cantor (oct. 5, 2012), http://www.ericcantor.com/2012/10/the-national-rifle-association-political-victory-fund-endorses-eric-cantor. 171 watts, supra note 162. 78 on death’s doorstep vol. 5.1 consequences the legislation has had in destroying lives, families, and communities. though avoiding discussions of race in the debate may be a less than ideal solution and will not work to eliminate the colorblind mythology plaguing american society, the unfortunate reality is that race salient critiques will only further entrench these laws. it must be asked whether forcing discussions about the racist impact of stand your ground upon an apathetic (or hostile) opponent is worth risking the lives of young black americans. an approach grounded in empathy and the voices of victims would transcend race and allow for an open, bipartisan dialogue, ultimately creating an environment in which these laws could be repealed. v. conclusion as the recent outcry over the renisha mcbride shooting illustrates, the michigan self-defense act is a highly controversial subject. as discussed in part i of this note, the common law castle doctrine offered fairly robust protection for individuals employing deadly force in self-defense. thus, a repeal of the act would not leave michiganders defenseless in the face of a violent attack. despite the renisha mcbride tragedy, many gun rights advocates remain staunch in their support of the act, and there is no serious momentum to effectuate its repeal. a significant reason for this failure is the aggressive insertion of race into the debate. this note does not intend to suggest that race is not implicated by stand your ground; by contrast, the evidence in section three indicates that the self-defense act has a severely racialized impact. the assertions of racism that have emerged with the killings of renisha mcbride and trayvon martin, however, have alienated gun rights supporters and prevented any productive compromise from being achieved. allegations that the act is racist imply that those who support the legislation are also racist. this causes severe dissonance with the “post-racial” perspective adopted by many white americans—since they fervently believe they are colorblind, it is inconceivable to them that legislation they support is racist. thus, rather than continue with an ineffective and polarizing approach, racial justice advocates should attempt to connect with their opponents through empathic dialogue. hopefully, if the two sides make a concerted effort to actively listen to and understand one another, it will create an environment in which real compromise can be achieved and senseless violence can be eliminated. 4 galloway final 2014 columbia journal of race and law    205 the numbers matter: an update to the implementation of new york’s prison gerrymandering law devon galloway* to combat the rise of “prison-based gerrymandering”, the new york state assembly enacted a law requiring prisoners to be counted in their “home” districts. these laws changed the census bureau’s “usual residence rule”, which required the bureau to count prisoners in their places of incarceration. while the law has been a firm step forward to combat prison gerrymandering, the law excludes from reapportionment prisoners who cannot provide a known address. this note argues that new york has provided no legal justification for excluding prisoners from reapportionment, especially given the fact that there are many in similar situations who are counted. the note also proposes some solutions to make sure that other states passing these reforms are not excluding prisoners from the census count for unwarranted reasons.   i. introduction ………………………………………………………...... 206 ii. background …………………………………………………………….. 208 a. reapportionment and the rise of “one person, one vote” …………………………………………………………… 208 1. districting before baker v . carr & “one person, one vote” …………………………………………………… 208 2. baker v . carr and “one person, one vote” ……………… 209 3. reyno lds , karcher , and gaf fney : “one person, one vote” to the states ……………………………………... 210 b. issues with the census bureau’s counting of prisoners ………...... 212 1. counting prisoners ………………………………………….. 212                                                                                                                 * j.d. 2014, columbia law school; b.a. 2010, columbia university. the author would like to thank his family & friends, without whom none of his successes would have been possible; and the staff of the columbia journal of race & law for their invaluable revisions and patience. an update to the implementation of new york’s prison gerrymandering law vol. 4:2  206   2. prisoner counting and racial disparities in the criminal justice system …………………………………….. 213 3. prisoner vote dilution and prison-based gerrymandering ……………………………………………... 213 iii. argument ………………………………………………………………… 215 a. the problems of the census process in counting prisoners ……………………………………………………………... 215 1. prisoners without addresses ……………………………….. 215 2. problems with federal prisoners …………………………… 216 b. lit t l e v . latfor : the new york courts approve part xx ……………………………………………………………….. 216 c. legal issues with new york’s gerrymandering law ……………... 217 1. what reasons could new york proffer for not counting prisoners who are homeless or had incomplete addresses ………………………………………. 218 d. what should be done? ……………………………………………… 221 1. states should count prisoners who have no attributable home address in the districts where they are incarcerated unless they provide evidence substantiating a proffered interest ……………………………………………………..... 221 2. the census bureau should coordinate with the states on a proper method for collecting addresses ……………………………………………………. 222 iv. conclusion ……………………………………………………………… 223 i. introduction in 2011, new york and maryland passed reapportionment laws requiring prisoners to be counted in their “home” districts rather than their place of incarceration.1 designed to end prison-based                                                                                                                 1 see act of aug. 11, 2010, part xx, 2010 n.y. sess. laws 57 (mckinney) (bill number s. 6610-c, 233d legislative session); no representation without population act. s.b. 400, 2010 leg., 427th sess. (md. 2010). 2014 columbia journal of race and law    207 gerrymandering,2 the laws deviated from the census bureau’s policy of the “usual residence rule,” which dictated that the bureau must count prisoners in the places where they are incarcerated. maryland in particular received great praise for its new law, even after enduring legal challenges from the legislators who lost a large part of their constituency from the reform.3 nonetheless, as with most laws, prison gerrymandering reforms have faced numerous implementation problems. news stories have highlighted the difficulty prison administrators have had with tracing the home addresses of some prisoners.4 some prisoners in one state’s prison system were residents of another state. other prisoners provided addresses that, when checked, were found to be incomplete.5 finally, hundreds of prisoners were homeless when they were arrested and thus had no addresses to provide. new york and maryland addressed this problem in different ways. for those prisoners who cannot provide a traceable address, maryland’s “no representation without population” law counts those prisoners in the district in which they are incarcerated. on the other hand, new york’s prison gerrymandering reform, part xx, approaches this issue as follows: for all incarcerated persons whose residential address prior to incarceration was outside of the state, or for whom the task force cannot identify their prior residential address, and for all persons confined in a federal correctional facility on census day, the task force shall consider those persons to have been counted at an address unknown and persons at such unknown address shall not be included in such data set created pursuant to this paragraph.6 hence, prisoners without a traceable new york address are not counted for purposes of redistricting. while this may make sense in order to stop the issue of prison gerrymandering, new york has weak political justifications for excluding prisoners from the redistricting count given the fact that there are people who are similarly situated but are included in reapportionment. hence, this note will address three questions. first, what was the problem maryland and new york were trying to fix in the first place? second, does new york have a valid reason for not counting these prisoners so that it can avoid an equal protection violation? finally, if new york has not done enough, what else, if anything, can new york do in order to provide a model solution for other states?                                                                                                                 2 gerrymandering is the manipulation of election districts in order to give political advantages to a particular group (including a political party, race, or other social class). usually this involves two maneuvers. first, gerrymandering involves creating districts so that the favored group will have electoral majorities in as many districts as possible. second, it may involve concentrating the opponent’s voting strength to as few districts as possible. the article below will explain how gerrymandering applies in the prison context. 3 see, e.g. peter wagner, beginning of the end for “prison-based gerrymandering,” wash. post (july 13, 2011), http://www.washingtonpost.com/opinions/beginning-of-the-end-for-prison-based-gerrymandering/2012/07/13/ gjqajp7fiw_story.html; supreme court uphold maryland law ending prison-based gerrymandering; huge victory for fair representation, demos (june 25, 2012), http://www.demos.org/press-release/supreme-court-upholds-maryland-lawending-prison-based-gerrymandering-huge-victory-fai; tricia bishop, high court affirms maryland’s redistricting map., the baltimore sun (june 25, 2012), http://www.baltimoresun.com/news/maryland/politics/bs-md-redistricting-planaffirmed-20120625,0,5168003.story. 4 joseph spector, about 20,000 prisoners may go uncounted in redistricting, politics on the hudson, (nov. 18, 2011, 4:20 pm), http://polhudson.lohudblogs.com/2011/11/18/about-20000-prisoners-may-go-uncounted-in-redistrict ing/. 5 “incomplete” refers to an address that, when traced, leads to a resident being unrelated to the prisoner or to an abandoned or non-existent building. 6 n.y. legis. law § 83-m (mckinney 2011). an update to the implementation of new york’s prison gerrymandering law vol. 4:2  208   this note will begin by assessing equal protection jurisprudence and the rise of the “one person, one vote” standard. this standard is not only crucial toward understanding why new york and maryland passed prisoner gerrymandering reform in the first place, but also key to understanding the deficiencies in new york’s implementation of the law. next, this note explains how prison gerrymandering became such a problem. the note then analyzes new york’s prison gerrymandering reform, and argues that there is an equal protection violation by not counting traceable prisoners. finally, the note concludes that new york should follow maryland’s example and count those prisoners without a traceable new york address. in fact, this note asserts that maryland’s implementation of its prison gerrymandering reform can be a model other states can adopt to stop prison gerrymandering while at the same time fulfill the major purpose of “one person, one vote”: to make sure that every person that can be counted is counted. ii. background a. reapportionment and the rise of “one person, one vote” 1. districting before baker v . carr & “one person, one vote” every year, americans fill out their census forms, leading to many consequences not only for themselves, but also for those around them. for example, federal, state, and local governments use census data for a variety of reasons, including citywide planning,7 verification for government benefits, and the distribution of “over $400 billion in federal funds to local, state, and tribal governments each year”. 8 most importantly, the constitution requires a national census for the purposes of reapportionment.9 in this reapportionment process, many districts are created, erased, and combined to form new districts reflecting the changes in the state’s population. however, until the 1960s, the districting system was wrought with many problems. first, there were large discrepancies between different districts. this was a problem not only for the districts drawn for the house of representatives, but also for state and local legislatures.10 the first reason for this problem was the role of state power in redistricting, and the perverse incentives it created. taking advantage of the constitution’s few requirements for redistricting, many states, through their own constitutions, placed the power of redistricting to their legislatures, the same body that was benefitting from this severe malapportionment.11 before “one person, one vote,” hundreds of congressmen and state legislators benefitted from gross malapportionment between districts. judicial deference was the second cause leading to gross malapportionment pre-baker. the prime example of this was the court’s decision in colegrove v. green.12 in colegrove, three illinois voters challenged                                                                                                                 7 about us, u.s. census bureau (last updated aug. 27, 2012), http://www.census.gov/aboutus. 8 id. 9 see u.s. const. art. i, §2. 10 article i, section 2 of the constitution requires that “[the] “representatives and direct taxes shall be apportioned among the several states which may be included within this union,” however, it does not specify how they should be apportioned. u.s. const. art. i, § 2. moreover, it was unknown if article i, section 2 or the fourteenth amendment, (which basically repeats the language of article i, section 2), even applied to the states since the section only addresses redistricting for the house of representatives. u.s. const. art. i, § 2; u.s. const. amend. xiv. 11 recently states have started to grant full or partial authority in redistricting to non-partisan commissions. the power these commissions have vary from state to state. as of 2011, only washington, new jersey, montana, idaho, hawaii, and arizona use commissions to draw both congressional and state legislative districts. see. nat’l conference of state legislatures, redistricting law 2010 (2009), available at http://www.comptroller.tn.gov/lg/pdf/ ncsl%20redistrictiing%202010.pdf. 12 colegrove v. green, 328 u.s. 549 (1946). 2014 columbia journal of race and law    209 the state’s redistricting plan arguing that the plan was suspect—it was based on a forty-six year old census. thus, “the federal census of 1910, of 1920, of 1930, and of 1940, each showed…a substantial shift in the distribution of population among the districts established in 1901.”13 the court even acknowledged the legislators’ interest in the status quo by noting that, “the issues of state and congressional apportionment are thus so interdependent that it is to the interest of the state legislators to perpetuate the inequitable apportionment of both state and congressional election districts.”14 nonetheless, the court upheld the lower court’s dismissal. noting famously that, “courts ought not to enter this political thicket,”15 the court based its ruling on a lack of a judicial remedy. the opinion notes: [a]t best, we could only declare that existing electoral system invalid. the result would be to leave illinois undistricted and to bring into operation, if the illinois legislature chose not to act, the choice of members for the house of representatives on a statewide ticket. that last stage may be worse than the first. the upshot of judicial action may defeat the vital political principle which led congress, more than one hundred years ago, to require redistricting. 16 thus, the court did see that malapportionment was a problem. however, the court decided that issues in districting were not justiciable. instead, the court noted that article i, section 4 of the “constitution has conferred upon congress exclusive authority to secure fair representation by the state in the popular house…if congress failed in exercising its powers…the remedy ultimately lies with the people.”17 2. baker v . carr and “one person, one vote” much would change in the fourteen years between colegrove and the court’s holding in baker v. carr.18 the warren court was now in its eighth year and with a much different membership. in fact, only three justices remained from the colegrove decision, and two of those three (justices black and douglass) dissented in colegrove. 19 hence, with the hundreds of legislators still benefitting from gross malapportionment in congressional and state legislative districts, the warren court decided to reconsider the problem of population irregularities. the facts in baker are almost identical to colegrove. baker involved a challenge to tennessee’s redistricting scheme, which (due to the failure of the legislature in passing a new districting plan) used the 1901 census count for the apportionment of the state legislature in 1960.20 consequently, moore county ha[d] a total representation of two with a population (2,340) of only oneeleventh of rutherford county (25, 316) with the same representation…likewise, loudon county (13,264), houston (3,084), and anderson county (33,990) have the same representation, i.e. 1.25 each.21                                                                                                                 13 id. at 567 (black, j., dissenting). 14 id. 15 id. at 556. 16 id. at 553. 17 id. at 554. 18 id. at 549; baker v. carr, 369 u.s. 186 (1962). 19 justice frankfurter (who would go on to write the dissent in baker) was the only justice on the warren court in the colegrove majority. 20 baker, 369 u.s. 186 (1962). 21 id. at 255 (1962) (clark, j., concurring). an update to the implementation of new york’s prison gerrymandering law vol. 4:2  210   but rather than adhering to colgrove, the court decided to go in a different direction, holding that redistricting problems could be solved through a judicial remedy. the court noted that ”judicial standards under the equal protection clause are well developed and familiar, and it has been open to courts since the enactment of the fourteenth amendment to determine . . . that a discrimination reflects no policy, but simply arbitrary and capricious action.”22 however, while baker was the beginning of the “one person, one vote” idea, it did not provide any standard for states to implement. the court’s progressive holding in baker was clouded by its silence on how states could avoid equal protection violations during redistricting. hence, two years later, the court had to go back and establish a judicial standard for the malapportionment problem. for congressional districting, the court held in wesberry v. sanders that each congressional district must have roughly equal populations.23 thus baker and wesberry drastically changed the way states implemented their congressional redistricting plans. in fact, within nine months of baker, litigation was underway in thirty-four states challenging the constitutionality of state redistricting schemes.24 but the baker/wesberry holdings only provided a judicial remedy for congressional redistricting. the question was still open as to whether baker applied to the drawing of state and local legislatures. moreover, if baker did apply to state legislative redistricting, could there be any deviations from the standard since redistricting for state legislatures involves more variables than congressional redistricting?25 3. reyno lds , karcher , and gaf fney : “one person, one vote” to the states while baker forever changed the way states drew their congressional districts, districting for state and local legislatures was also rife with severe malapportionment. to take an example, the state of tennessee failed to redraw its state legislative districts according to recent federal census data. this failure in redrawing led to some single urban districts having as many as ten times more residents than single rural districts.26 in georgia, [o]ne unit vote in [the more rural] echols county represented 938 residents, whereas one unit vote in fulton county [in which atlanta is located] represented 92,721 residents. thus, one resident in echols county had an influence in the nomination of candidates equivalent to 99 residents of fulton county.27 around the same time, the connecticut state legislature reported single districts ranging from 191 people to 81,000 people.28 in california, los angeles (which at the time had six million people) had only one representative in the california state senate. meanwhile, the 14,000 people of a rural county also had one state senator.29 finally in idaho, the smallest senate district contained 951 people. the largest district contained 93,400 people, or ninety-eight times more than the smallest district.30                                                                                                                 22 id. at 226. 23 wesberry v. sanders, 376 u.s. 1 (1964). 24 samuel issacharoff, pamela s. karlan, & richard h. pildes, the law of democracy 146 (4th ed. 2007) (citing reynolds v. sims, 377 u.s. 553, 556 (1964)). 25 these variables could include, for example, “political subdivision” requirements found in state constitutions, which require that county subdivisions remain intact during the redistricting process. 26 gray v. sanders, 372 u.s. 368, 371 (1963). 27 id. 28 morris k. udall, congressman’s report: “one man, one vote”…that’s all she wrote!, http://www.library.arizona. edu/exhibits/udall/congrept/88th/641014.html (last visited jan. 21, 2014). 29 id. 30 id. 2014 columbia journal of race and law    211 hence, in august 1964, voters of jefferson county, alabama challenged the apportionment of the alabama state legislature. as in many areas of the country, alabama’s legislature was greatly distorted. though the alabama constitution required that the legislature be apportioned every ten years, the apportionment of the legislature was still based on the federal census of 1900.31 in the sixty years since, population changes in the state made it so that some districts had as many as fourteen times as many people as other districts. finding that the malapportionment undervalues individuals’ voting power in certain districts, the court applied baker and held that “one person, one vote” does apply to redistricting in state legislatures. at the same time, the court did acknowledge the difference between congressional redistricting and state redistricting. the court held that “states can rationally consider factors other than population in apportioning legislative representation.”32 noting that state legislatures tend to have more seats to be distributed, the court acknowledged the importance of certain state goals in the redistricting process. this leeway that the court provided for state goals gives states the authority to consider the importance of things such as keeping political subdivision lines and maintaining the compactness and contiguity of certain districts when formulating the state-districting scheme.33 thus, “the equal protection clause requires that a state make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.”34 the court would expand on these important state goals in gaffney v. cummings35 and karcher v. daggett.36 in gaffney, the court heard a challenge to a connecticut redistricting plan. the issue with the plan was that it was the result of a bipartisan gerrymander that considered the geographic strengths and weaknesses of both parties. 37 moreover, compared to the districts drawn for the house of representatives, the state legislative districts had substantial deviations. 38 nonetheless, the court approved the plan under the reynolds rationale, noting, “that there are fundamental differences between congressional districting under art. i and the wesberry line of cases on the one hand, and on the other, state legislative reapportionment governed by the fourteenth amendment and reynolds v. sims and its progeny.”39 hence, gaffney reaffirmed the reynolds holding by providing states some flexibility in complying with the baker standard. in karcher, the new jersey legislature adopted the “feldman plan,” a redistricting plan that had only a less than one percent population difference between the largest and smallest districts. defenders of the plan argued that it was a good faith effort to fulfill the “one person, one vote” standard since the population deviation between the largest and smallest districts was smaller than the available census data for the state. what made the feldman plan constitutionally suspect, however, was that the legislature considered other plans with much smaller population deviations between the largest and smallest districts.                                                                                                                 31 reynolds v. sims, 377 u.s. 533, 540 (1964). 32 id. at 566. 33 id. 34 id. at 577. 35 gaffney v. cummings, 412 u.s. 735 (1973). 36 karcher v. daggett, 462 u.s. 725 (1983). 37 bipartisan gerrymandering adds a different flavor to political gerrymandering. rather than one party gerrymandering the other out of office, the main political parties strike a deal to keep each other’s incumbents protected. 38 gaffney, 412 u.s. at 750. compared to the districts drawn for the house complying under the wesberry rule, the state senate deviation was 1.81%. for the state assembly (the lower house)),) it was 7.83 percent. id. 39 id. at 742. an update to the implementation of new york’s prison gerrymandering law vol. 4:2  212   unlike gaffney, the court struck down the plan. the holding noted that new jersey could have achieved greater population equality “merely by shifting a handful of municipalities from one district to another.”40 moreover, the court held that the state did not reach its burden of showing that the population variances were necessary. the court did reiterate possible justifications for population variances such as keeping “districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent representatives,”41 but it noted that “the state must . . . show with some specificity that a particular objective required the specific deviations in its place, rather than simply relying on general assertions.”42 thus, in summary, baker and its progeny held that redistricting for congressional districts would be held to a higher level of scrutiny than the redistricting of the state legislatures.43 districts drawn for state legislatures can deviate from the “one person, one vote” standard if they achieve certain state interests such as keeping districts compact, respecting municipal boundaries, or avoiding contests between incumbent legislatures.44 while the states have this greater leeway, they must prove that there was a particular objective that required a deviation from “one person, one vote” in the first place.45 the “one person, one vote” cases drastically altered the redistricting process for congress and state legislatures. yet, while these holdings had many effects on the process of reapportionment, the means through which people are counted for redistricting have not really changed. to this day, the census counts most people in the district in which they reside, and in general this approach has been mostly effective in attaching everyday citizens to their districts. for prisoners, however, the method through which they are counted has led to three questions. primarily, where should prisoners be counted? secondly, where does the method of counting prisoners intersect with the racial disparities in the criminal justice system? finally, what are the effects of counting these prisoners in a certain place? b. issues with the census bureau’s counting of prisoners 1. counting prisoners as stated above, states rely on census bureau data when they go through the redistricting process. the bureau counts most individuals based on the “residence rule,” which counts the person in, “the place where a person lives and sleeps most of the time.”46 as applied to certain groups, the bureau classifies certain living arrangements such as prisons, military barracks, and dormitories as “group quarters” for the usual residency requirement.47                                                                                                                 40 karcher, 462 u.s. at 739. 41 id. at 740. 42 id. at 741. the court seemed to have provided much deference to what a “specific justification”is. the court explains that “the showing required to justify population deviations is flexible, depending on the size of the deviation, the importance of the state’s interests, the consistency with which the plan as a whole reflects those interests, and the availability of alternatives that might substantially vindicate those interests yet approximate population equality more closely.” id. 43 baker v. carr, 369 u.s. 186 (1962); wesberry v. sanders, 376 u.s. 1 (1964). 44 gaffney v. cummings, 412 u.s. 735 (1973). 45 karcher v. daggett, 462 u.s. 725 (1983). 46 residence rule and residence situations for the 2010 census, u.s. census bureau, http://www.census.gov/ population/www/cen2010/resid_rules/ resid_rules.html. (last visited apr 21, 2014). 47 2010 american community survey/puerto rico community survey group quarters definitions, u.s. census bureau, available at http://www.census.gov/acs/www/downloads/data_documentation/groupdefinitions/2010gq_   2014 columbia journal of race and law    213 to the states that are redistricting, this “group quarters” classification brings up many issues of representation. first, there are many prisoners who consider their place of residence as somewhere different from where they have been incarcerated. second, the census bureau’s records do not distinguish who is a “group quarter” resident from who is not. moreover, much of the group quarters data was not given to states until very recently.48 2. prisoner counting and racial disparities in the criminal justice system though deciding how to count prisoners is already a difficult issue, it becomes an even more complex problem due to the racial disparities in the criminal justice system. blacks make up 41.3% of the federal and state prison population.49 in 2012 in the state of new york, the general population was 71.2% white, but approximately seventy-seven percent of its prison population was either black or latino.50 in georgia, blacks make up about thirty percent of the general population but over sixty percent of the prison population. while there are a number of causes for the racial disparity in the prison population, one of the main causes has been the implementation of the war on drugs. in the united states, drug offenders comprise almost half of america’s federal prison capacity.51 however, the mass incarceration of drug offenders has a racial aspect. though statistics show that drug usage is about the same across racial lines, blacks make up a large proportion of those imprisoned for drug offenses. 52 moreover, due to overcrowded prisons, the rapid increase of drug offenders in prison has necessitated the release of more violent offenders, such as those convicted of murder.53 as this note explains further below, race disparities in the prison system are important in the prison-gerrymandering context since they produce a race-based voting disparity problem. since most of the prisoners are black and latino, not counting these constituents in their home districts (or at all) could potentially take away a substantial amount of voting power from certain districts with large black and latino voting strength. 3. prisoner vote dilution and prison-based gerrymandering as stated above, only new york, maryland, and delaware have passed laws to stop counting prisoners in the districts in which they are incarcerated. thus, for states that still accept the usual residence rule, there remain even more issues. most importantly, counting prisoners using the usual residence rule transfers political power from urban communities of color to rural white communities.54 this problem exists because most prisons are located in rural areas. rural communities make up 20% of the us population, but these communities are home to 60% of new prison construction.55 to take a                                                                                                                                                                                                                                                                                                                                                                       definitions.pdf. 48 in this current redistricting cycle, the census bureau will release its “group quarter” data to the states. however, it is far too early to decide if this will ameliorate the problem. 49 see prison based gerrymandering legislative reform, naacp legal defense fund, http://www.naacpldf. org/case/prison-based-gerrymandering. 50 state and county quick facts for new york, u.s. census bureau, http://quickfacts.census.gov/qfd/states/ 36000.html (last visited april 20, 2014). 51 alfred blumstein, racial disproportionality of u.s. prison populations revisited, 64 u. colo. l. rev. 743, 751 (1993). 52 id. 53 id. 54 see naacp legal defense and educational fund, captive constituents: prison-based gerrymandering & the distortion of our democracy 4-5 (2010), available at http://www.naacpldf.org/ files/publications/captive%20constituents%20report.pdf. 55 peter wagner, importing constituents: prisoners and political clout in new york, prison policy initiative (last visited jan. 13, 2014), http://www.prisonpolicy.org/ importing/importing.html/. an update to the implementation of new york’s prison gerrymandering law vol. 4:2  214   local example, only 24% of new york’s prisoners are from upstate new york, yet about 91% of the state’s prisoners are incarcerated there.56 66% of new york’s prisoners are from new york city, meaning that numerous prisoners from the city are being sent to rural locations upstate.57 second, distortions arising from prison-based gerrymandering can lead to extreme disparities between the number of people counted and the number of people who can actually vote in the district. the most infamous example of this came in anamosa, iowa. there the town was divided into four wards for elections to its city council. however, while each ward contained approximately 1370 people (thus fulfilling the one person, one vote standard), ward 3 contained a penitentiary that housed over 1320 prisoners. thus if one removes the prison population from ward 3, there were fewer than 50 people in the district.58 this is especially problematic when state legislatures take race into account during redistricting. for example, district 1 in somerset county, maryland, was drawn as a majorityminority district in order to remedy a voting rights act violation in the 1980’s.59,60 however, since the prisoners of the eastern correctional institute (who were overwhelmingly black and latino) were counted for redistricting, only a few blacks who lived in district 1 were actually eligible to vote. thus, a district that may have been created to elect a minority candidate to the legislature ended up not electing a black candidate until 2010.61 finally, distortions based on using the usual residency rule also provide legislators a disincentive toward prison reform. dale ho notes that “because their political power depends in some measure on a continuing influx of prisoners, legislators from prison districts have a strong incentive to oppose criminal justice reforms that might decrease incarceration rates.”62 prison reformer, peter wagner, also noted this issue when talking about new york’s districting system before its prison-based gerrymandering reforms. seven new york state senate districts drawn after the 2000 census met minimum population requirements only because they use prison populations as padding.63 of the seven new york senate districts discussed above, four of the senators sat on the powerful codes committee where they opposed reforming the state’s draconian rockefeller drug law that boosted the state’s prison population. 64 the inflated populations of these senators’ districts gave them little incentive to consider or pursue policies that might reduce the numbers of people sent to prison or the length of time they spend there. one of them, republican new york state senator dale volker,                                                                                                                 56 id. 57 id. 58 naacp legal defense and educational fund, testimony of dale ho (2011), available at http://www.naacpldf.org/files/case_issue/dale%20ho%20 testimony%20kentucky.pdf. furthermore, the number of voters in ward 3 may have been even fewer, since the census counts many people who are not voting age (such as children or prisoners). 59 fletcher v. lamone, 831 f. supp. 2d 887, (d. md. 2011). 60 the reasons legislatures draw majority-minority districts are manifold. optimists say that these districts aid in the election of either a minority member to the legislature or a white candidate who is amenable to the views of the minorities. pessimists would say that these districts are a way to dilute the voting power of minorities. 61 fletcher, 831 f.supp.2d at 887. 62 dale ho, captive constituents: prison-based gerrymandering and the current redistricting cycle, 22 stan. l. & pol’y rev. 355, 363-64 (2011). 63 peter wagner, breaking the census: redistricting in an era of mass incarceration, 38 wm. mitchell l. rev. 1241, 1243 (2012). 64 id. at 1244. 2014 columbia journal of race and law    215 boasted that he was glad that the almost 9,000 people confined in his district cannot vote because “they would never vote for me.”65 hence, the rise of prison-based gerrymandering has undermined the purpose of “one person, one vote.” while these gerrymandered districts are numerically equivalent to the other districts in their state, many of these districts only exist due to their prison populations. finally, prison-based gerrymandering leads to many issues that are extrinsic to voting power itself, since it may contribute towards sustaining mass incarceration. iii. argument this section argues that while these reforms have been a step forward toward ending the problems associated with prison-based gerrymandering, new york violated the constitution’s equal protection clause by refusing to count prisoners to whom the state could not attach an address. this section of the note addresses what new york and maryland have done to solve the problem. second, this section analyzes potential justifications that new york may proffer in order to defeat an equal protection claim. finally, this section explores ways toward perfecting new york’s system so that the purpose of “one person, one vote” can be fulfilled. a. the problems of the census process in counting prisoners in 2011, new york and maryland passed legislation changing where prisoners are counted for reapportionment.66 as of november 2012, approximately twenty states have either introduced legislation abolishing prison-based gerrymandering or are considering resolutions that would ask the census bureau to change where incarcerated people are counted.67 the solution to combat prison-based gerrymandering that new york and maryland decided upon was to count prisoners in their home districts rather than the districts in which they have been incarcerated. these states still accept the data from the census bureau for counting most of the population. however, to achieve the objective of their prison-based gerrymandering reforms, the states obtain different sets of data for their prisoners. the states receive this data from their departments of corrections and create a database with the pre-incarceration addresses of every prisoner. while these changes were easy to implement for a majority of prisoners, the law has not been without problems. 1. prisoners without addresses the largest issue that arises from anti-prison gerrymandering laws is that there are many prisoners who could not be traced back to a home district. this is especially a problem for the hundreds of prisoners who are homeless. homelessness is a leading catalyst for incarceration due to a number of local laws prohibiting sleeping, standing, and panhandling in public areas. moreover, a homeless person being imprisoned leads to a vicious cycle. past imprisonment tends to lead to more homelessness, since released prisoners usually do not have a home to return to. moreover, released prisoners usually face many difficulties securing new housing. for example, many states either must or have the discretion to exclude former convicts from all public housing. this is turn leaves them homeless, and thus more likely to be arrested and imprisoned again under a variety of local laws. are there citations these statements? if not it’s fine because it’s so late but it would be good to have citations for these statements.                                                                                                                 65 id. 66 delaware also passed an anti-prison gerrymandering law in 2011. however, this note will focus on the responses from new york and maryland. 67 peter wagner, momentum is building to end prison-based gerrymandering, prison policy initiative, http:// www.prisonpolicy.org/atlas/momentum.html (last visited jan. 20, 2014). an update to the implementation of new york’s prison gerrymandering law vol. 4:2  216   further, outside of the homeless, there are still many problems with addresses. hundreds of prisoners are incarcerated in states in which they do not live. moreover, if a prisoner does provide an address, there is a chance that someone else may be living at that address. the data in maryland underscore this point. in a court challenge against maryland’s “no representation without population” act, the director of maryland’s prisoner reallocation adjustment program noted that of the 22,064 prisoners under maryland’s division of corrections, 111 had incomplete addresses, 1,321 had addresses that were out of state, and 1,635 either had no addresses or were homeless when incarcerated.68 these prisoners were eventually counted in the district in which they were incarcerated. new york’s prison-based gerrymandering reform, however, treats those prisoners without addresses differently. the new york state legislative task force on demographic research and reapportionment (latfor) stipulates that “in the event the inmates’ prior residential addresses are unknown…[or] were outside the state…latfor ‘shall consider those persons to have been counted at an address unknown and persons at such unknown address shall not be included in such data set’ to be used to draw legislative districts.”69 as of the 2010 redistricting, 46,003 of the 58,237 state prisoners were successfully traced back to a home address. thus, 12,234 prisoners (or just over 21% of the total number of state prisoners) had no traceable address. unlike maryland’s procedure of just counting the prisoners in the places where they are incarcerated, new york’s part xx removes these prisoners from the counting process altogether. 2. problems with federal prisoners another problem with implementing prison-based gerrymandering reform is that it requires cooperation between state and federal government. in maryland, there has been minimal cooperation. the state filed a freedom of information act request to the federal bureau of prisons for information on the home addresses of federal prisoners. however, the bureau rejected the request, forcing maryland to exclude approximately 1,500 prisoners from its division of correction database.70 similarly, new york’s part xx also requires latfor to not count federal prisoners. in new york’s redistricting plan, 2,471 federal prisoners were not counted.71,72 hence, due to a failure in federal and state government cooperation, hundreds of prisoners, some of whom can most likely be traced to a home address, will be excluded from redistricting count. b. lit t l e v . latfor : the new york courts approve part xx in 2011, a group of state senators from new york challenged part xx. however, rather than basing their argument on the equal protection clause, the group of senators declared, “part xx violates article iii, §4 of the state constitution because the method of counting inmates in their prior residences                                                                                                                 68 fletcher v. lamone. (civil action no: 8:11-cv-03220-rwt); declaration of james cannistra, head of maryland’s redistricting project, available at http://www.prisonersofthecensus.org/fletcher/ag_exhibit_2.pdf (last visited: jan 22, 2014). 69 little v. n. y. state legislative task force on demographic research and reapportionment, available at http://www.prisonersofthecensus.org/little/decision_and_order.pdf 70 fletcher, 831 f. supp. 2d at n.3. 71 the reasons behind this are not totally clear. it is possible, however, that the federal bureau of prisons also refused new york’s request for the addresses of the federal prisoners residing in its five facilities. 72 see read me file for 2010 redistricting data, available at http://www.latfor.state.ny.us/data/?sec=2010amend pop (last visited feb. 1, 2013). 2014 columbia journal of race and law    217 rather than their place of incarceration deviated from that recommended by the census bureau in 2006.”73 new york’s supreme court upheld the law and refuted many of the senators’ arguments. first, the court found that the senators did not demonstrate that part xx made “the data provided by the census bureau to be anything less than “controlling” in the redistricting process.”74 second, the senators argued that “[excluding the] inmates whose addresses cannot be determined or are from outside the state contravene that part of article iii that require all “inhabitants” be counted for apportionment purposes.”75 the court found this unavailing. the court argued that while “[the] inmates may be physically found in the locations of their respective facilities, . . . there is nothing in the record to indicate that such inmates have any actual permanency in the location or have an intent to remain.”76 moreover, “[the] plaintiffs have not proffered evidence that inmates have substantial ties to the communities in which they are involuntarily and temporarily located.”77 these statements from the court are not unwarranted. the state senators’ complaint offered no justifications as to why prisoners without a new york address should have been counted beyond a reading of the legal text, which said: part xx also bars enumeration of persons found in the state . . . whose prior addresses cannot be identified because of missing information. the federal census found them present in the state for the purpose of being enumerated, and thus they should be counted by the explicit terms of article iii §4, yet part xx edits the census numbers to exclude them. the editing of the census to add or subtract inhabitants violates the explicit constitutional provision that the federal decennial census “shall be controlling” and cannot be harmonized in the face of a direct constitutional command.78 hence, the plaintiffs failed to introduce any arguments for why those prisoners without a traceable new york address should be counted. this note will present these potential arguments below. c. legal issues with new york’s gerrymandering law as stated above, equal protection jurisprudence gives states more flexibility to deviate from the “one person, one vote” standard when drawing state legislative districts, given that the state provides a valid political reason to deviate from population equality. this gives the state the ability to pay more respect to the compactness and contiguity of political subdivisions that have greater importance in local elections than congressional elections, among other considerations.79 thus, the key issue in a potential suit against latfor would be whether the state could provide a valid reason for not counting prisoners                                                                                                                 73 little, supra note 69, at 5; article 3, §4 of the new york constitution says that the federal census “shall be controlling to as to the numbers of inhabitants in the state or any part thereof for the purposes of the apportionment of members and assembly and readjustment or alteration of senate and assembly districts nest occurring, in so far as such census and the tabulation thereof purport to give the information necessary therefor.” 74 little, supra note 69, at 7. 75 id. 76 id. 77 id. 78 compl. little v. latfor, (index no. 2310-2011) (2012), available at http://www.prisonersofthecensus.org/ little/complaint.pdf. 79 states may also have to respect issues such as political boundaries (e.g. city, state and county lines), social, racial, and ethnic communities and making sure party considerations do not dominate the districting plan. all of these other state guidelines are usually dictated by the state’s constitution. an update to the implementation of new york’s prison gerrymandering law vol. 4:2  218   without addresses. however, as new york’s supreme court noted in little, those challenging part xx will have to provide “evidence that inmates have substantial ties to the communities in which they are involuntarily and temporarily located.”80 without this evidence, it is likely that the court would lean toward approving new york’s plan. thus the point of this section is to demonstrate that while these prisoners are not as integrated into the communities where their prisons are located, they are not so detached from the community that the state should refuse to count them at all. 1. what reasons could new york proffer for not counting prisoners who are homeless or had incomplete addresses? even though they are barred from voting, new york prisoners without home addresses are not counted for the purposes of redistricting. this seems like a peculiar step for the state for two reasons. first, many localities have decided to count the homeless and transient in their population censuses. this makes new york’s decision not to count these prisoners questionable since prisoners who have no home address are not transient. they remain in the same known place for the duration of their sentence. moreover, while these prisoners may not claim the prison as their domicile, the fact that these prisoners receive some benefit from the area in which they live suggests that the state should not exclude them from the districting process. second, the other major state to pass an anti-prison gerrymandering law, maryland, did decide to count those prisoners without addresses in the places where they are incarcerated. if maryland counts these prisoners in their imprisoned districts, what political reasons does new york have to not count these prisoners at all? a. the non-voter argument one political reason defenders of the law may bring up is that counting prisoners without addresses in their prison districts would ruin the purpose behind its prison gerrymandering reform. thus, since prisoners cannot vote, the purpose of the anti-prison gerrymandering law outweighs the necessity of counting these prisoners in their first place. while it is true that new york does not allow prisoners to vote, it is not a valid political reason to exclude them from the count completely. in fact, many groups who are not incarcerated, “such as minors, unregistered voters, or non-incarcerated felons (who are eligible to vote in some states, even after the completion of a sentence) … are counted where they are physically located for redistricting purposes.”81 thus, the central question is whether a state could use “voting population” as the standard for redistricting if total population could lead to voting disparities. if the state can use voting populations as a means of redistricting, then new york has every right to not count those prisoners without addresses. while the supreme court has not decided on this question, lower courts have denied numerous challenges to districting plans that counted non-voters. a prime example comes from a washington d.c. district court in federation for american immigration reform v. klutznick. in that case, the organization challenged the census bureau’s counting of undocumented immigrants who were later included in a data file that was used for a redistricting plan. though the court dismissed the case for lack of standing, the court did note in dicta: we also note that the phrase itself is inaccurate shorthand for the concept of equal representation for equal numbers of people, insofar as it is possible. state districts drawn                                                                                                                 80 little, supra note 69, at 7. 81 ho, supra note 62, at 364. 2014 columbia journal of race and law    219 strictly on the basis of population would clearly be constitutional, . . . in spite of the fact that concentrations of non-voting residents in a few district’s (such as where prisons or orphanages are located) would make the ballots of voters in a few districts more “valuable” than voters’ ballots in other districts.82 hence, while the supreme court has remained silent on the issue, lower federal courts have protected the identity of undocumented immigrants with regard to being counted in the census. if new york assumes that it can exclude prisoners from being counted because they cannot vote, klutznick strongly suggests that this argument would not be a valid political motivation. b. the “lack of integration” argument a second argument latfor can aver (and the court supported in little) is that the state does not want to undermine its prison gerrymandering reform in order to count prisoners who are not as integrated into the community as other non-voting groups, such as college students or even undocumented immigrants. latfor could argue that prisoners are “physically prohibited from integrating into their surrounding communities.”83 moreover, unlike anyone else who is counted for reapportionment, “incarcerated persons have no choice in where they are located.”84 the prisoners tend to reside in their prison district temporarily,85 and unlike many people who are counted for the purpose of redistricting, prisoners cannot enjoy many of the benefits the state and federal governments provide, such as parks, public schools, and highways. however, while these arguments have some merit, it is a stretch to assume that community integration is the key factor to being counted. small children are usually in the house most of the time, and yet the census bureau requires that parents report them for housing.86 moreover, thousands of people who are under hospice care are also counted for the u.s. census, yet most of them are physically restrained from going out into their surrounding communities.87 finally thousands of men and women who serve in the military are assigned to bases in which they do not choose to go, however, the census counts them under the “group residence” rule. moreover, this argument ignores the vast amount of resources prisoners do use every day. in the 2010 fiscal year, new york spent a total of 3.6 billion dollars to incarcerate an average daily population of 59,327 prisoners. this comes to about 60,076 dollars per inmate.88 thus, while prisoners may not be able to enjoy the same parks, public schools, and roadways as the members of their community, they are economically integrated in the community because it is where                                                                                                                 82 federation for american immigration reform v. klutznick, 486 f. supp. 564, 577 n.16. 83 ho, supra note 62, at 374. 84 id. 85 little, supra note 69, at 7. 86 u.s. census bureau, supra note 47. 87 in 2010, 292,759 people were counted under the hospice census. this census counts those who remained in hospice care at the end of that year. see nat’l hospice and palliative care org, nhpco facts and figures: hospice care in america (2011), http://www.nhpco.org/sites/default/files/public/statistics_research/2011_ facts_figures.pdf. 88 this number takes into account the 2.7 billion dollars that is part of the new york department of correction’s budget plus the 812.5 million in prison-related costs that are outside the department’s budget. these outside budget costs may include prison-related costs paid by state agencies outside of the department of corrections and costs related to the paying of benefits (such as health care and pensions) for prison employees. see vera institute for justice, the price of prisons: what incarceration costs taxpayers (2012), available at http://www.vera.org/sites/default/files/resources/downloads/price-of-prisons-updated-version-021914.pdf. an update to the implementation of new york’s prison gerrymandering law vol. 4:2  220   they consume most of their resources. much of the $60,076 that each inmate receives goes towards medical care, food, hygiene, living facilities, and recreation. moreover, much like everyone else in the community, they use the same licensed medical staff for health services, the same utilities (such as water and electricity), and the same roads to get to and from places.89 thus, similar to everyone else in their communities, prisoners live their lives using resources and personal services. and while these services may not include access to a community college or a stadium, the community benefits prisoners receive are actually much more important than a stadium is to an unincarcerated person. c. the duration/intent argument finally, new york could advance judge devine’s argument in the little opinion that there was “nothing in the record to indicate that such inmates have any actual permanency in these locations or have intent to remain.”90 this argument makes sense if one looks at prisoners as a single group. however, the argument becomes tenuous when one looks at other groups that the census bureau counts in their districts that are unlikely to reside in those areas long-term. united states military personnel, individuals living in military barracks, and individuals incarcerated in disciplinary barracks and jails in the united states are counted at their respective facilities.91 college attendees who live away from their parents’ homes are counted at their colleges.92 likewise, foreign students, some of whom most likely have visas that expire after their course of study, are also counted on campus.93 hence, when looking at the people who are likely to be temporary residents but are nevertheless still counted where they presently reside, the “intent-to-stay” argument is inconsistent. moreover, an argument that posits that these students or military men may end up staying long-term is flawed. first, the argument is simply speculative. military men may be called overseas at any time, and students often obtain employment or attend graduate school elsewhere after graduation. the second problem with this argument is that, even assuming that some students or military members intend to stay in the areas in which they are counted, there are hundreds of prisoners who will have to stay in their areas for a long time. as of last year, 61.3% of new york state prisoners are serving minimum sentences beyond fortyeight months, the usual time it takes to get a bachelor’s degree.94 for all new york state prisoners, the average minimum sentence is close to ten years, and the median minimum sentence is approximately five years.95 thus, it would be inconsistent for the state to argue that it cannot count these prisoners because they do not intend to stay while simultaneously accepting census data that counts other temporary residents who remain for a shorter period of time. finally, this argument is not novel. as dale ho notes, “the third circuit has held that, for the purposes of the census count, there is a reasonable basis for treating [inmates] differently from, for instance, temporarily hospitalized individuals, who are allocated to their home addresses.”96 the court held that incarcerated persons, “as distinguished from . . . those temporarily in a hospital for a short duration, often have no other fixed place of abode, and the length of their institutional stay is often                                                                                                                 89 prisoners may have to be transported for multiple reasons such as appearing in court, laboring at a work farm, or being released. 90 little, supra note 69, at 7. 91 u.s. census bureau, supra note 47. 92 id. 93 id. 94 state of new york dept. of corrections, under custody report: profile of inmate population under custody on january 1, 2011 10 (2011), available at http://www.doccs.ny.gov/research/ reports/2011/undercustody_report_2011.pdf. 95 id. 96 ho, supra note 62, at 372. 2014 columbia journal of race and law    221 indefinite.”97 moreover, while the supreme court has not provided a definite holding on the duration issue, the court has noted in dicta there may be a difference between long and short-term displacement. the court in franklin v. massachusetts held that physical presence should not be a determining factor in identifying a person’s residence.98 however, the court in franklin did note that “those persons who are institutionalized in out of state hospitals or jails for short terms are also counted in their home states.”99 from this dictum, ho concludes, “the implication could be that persons incarcerated for lengthier sentences are in fact properly enumerated where they are incarcerated.100 thus, upon looking at the three potential “political reasons” for not counting prisoners for the purposes of redistricting, it is clear there is some inconsistency. new york counts numerous people who are in living situations that are similar to prisoners. and while it is true that students or military members are not behind bars, many of these people either tend to stay where they are counted temporarily or were placed there by some authority. if new york really wants to look at issues of duration, disenfranchisement, and lack of integration with regard to prisoners, the state must also consider the fact that it counts a large number of people who have similar issues. d. what should be done? this next section details not only what new york can do to make its prisoner gerrymandering reform better, but also what the census bureau can do to facilitate the prison gerrymandering reforms that are gradually permeating throughout the country. thus, the following section will posit federal and state solutions that can create a better model for prisoner gerrymandering reform for other states to adopt. 1. states should count prisoners who have no attributable home address in the districts where they are incarcerated unless they provide evidence substantiating a proffered interest as explained above, states should count any untraceable prisoners in the districts where they are incarcerated. while new york’s experience with part xx envisions prison gerrymandering reform as a binary decision (either count them in the districts or not), prison gerrymandering reform comes through a variety of plans. in fact, some states have proposed prison gerrymandering reforms that would remove all prisoners from the redistricting plan.101 nonetheless, as explained above, these prisoners should be counted for the purposes of redistricting mostly on the principle of consistent treatment for those who are similarly situated. as a resident from michigan city noted in response to a proposal excluding prisoners from redistricting, . . . if we were to exclude prisoners from a redistricting count on the grounds that they cannot vote, we should also exclude people under the age of 18, who also cannot vote. the                                                                                                                 97 borough of bethel park v. stans, 449 f.2d 575, 582 (1971). 98 franklin v. massachusetts, 505 u.s. 788, 789 (1992). 99 id. 100 ho, supra note 62, at n. 96. 101 the author believes that these reforms are a worse violation of equal protection assuming that the states are able to attribute those prisoners to a traceable address. in fact, these reforms are susceptible to a section 2 claim under the voting rights act (which covers voting dilution). moreover, if this change involves a covered jurisdiction then these reforms could also be open to a section 5 voting rights act claim, which provides remedies for any changes in a covered jurisdiction specified in the act. an update to the implementation of new york’s prison gerrymandering law vol. 4:2  222   census gives us a block-by-block breakdown of the population under 18 just as it provides data on so-called “advanced group quarters” for prisoners. and what about members of jehovah’s witness, whose faith does not permit them to vote? their numbers may be harder to exclude since we’ve not had a religious census since 1970. still, you’d have to be consistent.102 this lack of consistency with regard to counting prisoners is even more problematic when one takes into account the racial disparities of the criminal justice system. many advocates of prison gerrymandering reform have argued that prison gerrymandering “weakens minority voting strength and transfers political power from urban communities of color to predominantly white areas.”103 however, this argument also cuts the other way: if counting minority prisoners in predominantly white areas is a dilution of voting power, then excluding minority prisoners from the process altogether seems to be a more egregious dilution. hence, regarding untraceable prisoners, the issue is not whether the reform could halt the dilution itself. instead, it is a matter of how best to reduce dilution of the voting strength of these prisoners. when it comes to redistricting, prisoners without a traceable address have no home. it would be infeasible to count them where they have committed their crimes, where they have been sheltered, or where the police find them. the only traceable place to which the state can trace these homeless prisoners is their place of incarceration. however, while these prisoners are not as integrated into the community as those who are not imprisoned, one should not ignore the variety of resources that prisoners use within the community. if physical restraint and lack of integration are the standards that decide whether one is counted for redistricting, then states must reexamine those who are similarly situated but are counted anyways. 2. the census bureau should coordinate with the states on a proper method for collecting addresses as of this writing, the census bureau still adheres to the usual residency rule when it counts prisoners. proponents of prison gerrymandering reform argue that the bureau should try to collect the pre-incarceration addresses of prisoners and integrate those addresses in the data files that the bureau gives to the states. however, as the trend of prison gerrymandering reform permeates through the country, it runs into a potential problem. prison gerrymandering reforms assume that the states have adequate information about prisoners before incarceration. the census bureau believes that some states may not have this information. according to a census bureau’s report in 2006, twenty percent of the states either do not keep the pre-incarceration addresses of prisoners or only keep this information in paper form.104 on the other hand, some contend that the bureau’s qualms about the states’ lack of information may be overstated. the new york city bar association analyzed new york’s available prisoner addresses. according to the new york city bar, “the new york department of correctional service could compile a list of the home addresses of all inmates who are in state prisons on census day, and it                                                                                                                 102 beryle burgwald, some thoughts on who to exclude in redistricting, the news dispatch (jan. 8, 2013, 5:06 pm), http://thenewsdispatch.com/articles/2013/01/08/news/opinion/local_guest_editorials/doc50eb83ee855a 0537877070.txt. 103 see naacp legal defense fund, supra note 49. 104 see u.s. census bureau, tabulating prisoners at their “permanent home of record” address (2006) available at http://www.census.gov/newsroom/releases/pdf/2006-02-21_tabulating_prisoners.pdf. 2014 columbia journal of race and law    223 would be a simple matter—a few hours’ work with readily available software—to determine . . . the number of prisoners to be attributed to each census block.”105 regardless of who is right in this debate, the census bureau can still ameliorate many issues that could arise as more states decide to engage in prison gerrymandering reform. first, it can encourage states to submit the pre-incarceration addresses that could later be integrated into the same file that the bureau produces to the states. for those states that say that they do not have this information, there is nothing preventing them from obtaining it. it is not beyond reason for these states to start a plan in obtaining these addresses. in fact, these correction departments could possibly coordinate with other state agencies to find traceable addresses for a large segment of their prison populations. a second issue that arises pertains to who should have control of the data once the correction departments collect them. one possibility is that the census bureau should keep the data and integrate them into its numeration files that it gives to the states. another option is that if the states adopt prison gerrymandering reform then they should also have the choice to decide what to do with their data. many issues regarding this question are still unresolved. however, going forward there will likely be much litigation over what states can and cannot do with data they collect for redistricting. many courts have held that states do not have to follow the census bureau’s data files for their redistricting plans. what the state can use, however, remains unknown. iv. conclusion the purpose of this note was not only to critique new york’s prison gerrymandering reform, but also to provide a model that other states can use for their own reforms to stop prison-based distortions. this note acknowledges that part xx has been a firm step forward toward fulfilling the “one person, one vote” standard set out in baker. however, not counting prisoners who have no traceable addresses is an unjustified treatment to the over 12,000 prisoners removed from new york’s redistricting plan. the state can argue that its purpose lies in implementing its prison gerrymandering reform, but this argument is tenuous in the face of how it counts others. latfor counts others who are similarly situated such as undocumented immigrants, students, and military members. like prisoners, many of these people stay in their areas for a short period of time, have no intent on staying where they reside, and use the same resources (such as utilities, roads, and government funded facilities) as prisoners. moreover, the common argument about prisoners not being able to vote is inapplicable here, since there are numerous groups of people who cannot vote yet are still counted. in sum, it will come down to whether a court believes that new york’s interest in implementing part xx outweighs the counting of over 12,000 prisoners. baker and its progeny held that population equality is a central idea to the constitution. yet, at the same time, these cases have given states much more leeway to deviate from the standard. the bounds of how much freedom the states have are fairly unknown. what we do know is that states cannot deviate from population equality for arbitrary or discriminatory reasons, such as a racial group’s voting strength.106 what we also know is that courts have accepted certain state interests (such as keeping districts compact, maintaining political subdivisions, and avoiding contests between incumbent legislators) as valid reasons to deviate from the reynolds rule. what                                                                                                                 105 see new york city bar, a proposed new york state constitutional amendment to emancipate redistricting from partisan gerrymanders: partisan channeled for fair linedrawing c-5 (2007), available at http://www.nycbar.org/pdf/report/redistricting_report03071.pdf. 106 while powerful voting blocs cannot be excluded from the districting process itself, it can be “packed”, “cracked”, or “gerrymandered out” in the districting process. however, the drawing of districts itself is subject to other supreme court precedent and is not within the scope of this note. an update to the implementation of new york’s prison gerrymandering law vol. 4:2  224   makes this case so novel is that “preventing prison-based distortions” has not been a recognized state interest by the supreme court. moreover, even if the court recognizes this interest, how small does the exclusion have to be before the significant interest becomes an insignificant one? regardless, the meaning behind the “one person, one vote” standard should not be a rubber stamp to a stated governmental interest. the standard should require more than that. instead, “one person, one vote” should require close judicial scrutiny not only to a state’s proffered interest, but also to how the facts presented support that interest. in this case, new york has provided no evidence supporting the fact that excluding over 12,000 prisoners from redistricting furthers their interest in implementing part xx. some may note that 12,000 prisoners are a large number, but it is unknown how this number may affect the redistricting process. are these 12,000 prisoners so spread out amongst the prison districts that their effect is negligible? or are enough prisoners concentrated in a certain area that a district may not exist without counting them? only new york knows. thus, unless there is evidence proving otherwise, new york should follow maryland’s lead and not exclude unassigned prisoners from the vote count. doing so underscores the constitutional guarantee that states will make that “honest and good faith effort” to ensure that every person is counted, regardless of where they reside. vol 2.1-final proof 2012 columbia journal of race and law 199 contracting away success: the way teacher collective bargaining agreements are undermining the education of america’s children timothy deloache edmonds* while american public education once stood as an example of educational excellence globally, it now exists as only a shell of what it once was. students from countries across the globe now routinely outperform american children and as each year passes, students filling classrooms in the united states slip farther and farther behind their international peers. american student proficiency rates across all subject areas sit at such low levels that they call into serious the question the creation of a competent and efficient workforce prepared to address and correct the varied problems the nation faces as it begins the 21st century. while numerous factors have contributed to this eroding of american education, one factor of significant influence is the practice of collective bargaining by teachers’ unions with school districts, as it exists today. though unions and collective bargaining serve an important role in american public education, protecting the interests of teachers and ensuring fair employment standards for these professionals, many aspects of these agreements between unions and school districts give short shrift to their negative implications for the students these teachers hope to educate. the goal of this note is to demonstrate the negative effects collective bargaining has had and continues to have on student achievement in america’s public schools, flesh out the problematic areas within these agreements, and put forth suggestions as to how the practice of collective bargaining might be modified to better !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! * j.d., may 2012, columbia law school, 2012. b.a., may 2009, dartmouth college. i would like to take this opportunity to thank all of those who offered me encouragement, moral support, and substantive assistance throughout the research, writing, and publication process. i would first like to thank my parents, r. blake and yvonne edmonds, for supporting me through this long and challenging journey to publication. their love and support meant more than they know through this learning experience. additionally, i would like to thank my notes editor, priscilla orta-wenner, who worked with me each step of the way through the research and writing process, offering critical feedback that truly contributed to making this project a success. further thanks goes to my note advisor, professor mark barenberg, for help in the conception of my topic and feedback on my finished product. additionally, i would like to thank jade craig, vanessa jackson, jeanette kang, david morales and his 2l staff editors, and all other members of the journal of race and law who worked with me through the publication process to make this piece strong. 200 contracting away success vol. 2:1 serve american children, those on whom the public education should be principally focused. i. introduction................................................................................................................202 ii. history of teachers’ unions and collective bargaining..................204 a. the conception and birth of teacher unionization.........................................................204 b. the rise of collective bargaining.....................................................................................209 iii. unions, collective bargaining, and student underachievement....................................................................................................211 a. an education system on life support...............................................................................212 b. connecting the dots: the link between underachievement and collective bargaining agreements.......................................................................................................................219 c. zeroing in on the problem.................................................................................................223 iv. important steps to regain academic excellence...................................229 a. seniority-focused layoff provisions.................................................................................229 b. merit pay............................................................................................................................232 c. teacher evaluation............................................................................................................235 v. conclusion......................................................................................................................240 i. introduction put plainly, the american education system is struggling. despite its storied past of international excellence, elementary and secondary students across the country struggle to meet proficiency standards in a wide variety of academic areas.1 subjects in which america’s children once led the world now escape !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 see, e.g., many nations passing u.s. in education, official says americans fall behind in diplomas, scores, hous. chron., mar. 10, 2010, at a4 [hereinafter many nations passing u.s. in education] (discussing the united states’ former international domination in the field of education and how, at this point, the united states is underperforming in comparison to a significant number of other nations). see table 135: average math scale score of 4th-grade public school students and percentages attaining math achievement levels and having 5 or more hours of math instruction per week, by state or jurisdiction: selected years, 1992 through 2009, nat’l ctr. for educ. statistics (2009), available at http://nces.ed.gov/programs/digest/d09/tables/dt09_135.asp; see table 136: average math scale score of 8th-grade public school students and percentage attaining math achievement levels, by level of parental education and state or jurisdiction: selected years, 1990 through 2009, nat’l ctr. for educ. statistics (2009), available at http://nces.ed.gov/programs/digest/d09/tables/dt09_136.asp; see table 122: percentage distribution of 4thand 8thgrade public school students, students’ average reading scale scores, and percentage of students at or above selected reading achievement levels, by jurisdiction or specific urban district and race/ethnicity: 2007, nat’l ctr. for educ. statistics (2009), available at http://nces.ed.gov/programs/digest/d09/tables/dt09_122.asp. 2012 columbia journal of race and law 201 the grasp of many of the nation’s young minds.2 as a result, the nation now walks a treacherous path as it moves into an age that requires workers to be more highly skilled and educated to be positive contributors in the national workforce. yet where was it that the system went wrong? what is causing this gross underperformance by american children? the answers to these questions, to be sure, are complex and multiple factors surely have contributed to this problem. yet among the various elements that bear responsibility for the nation’s fall from academic grace, one contributing factor is undoubtedly the influence of teachers’ unions. it is indisputable that teachers’ unions have contributed many positives to the field of education, winning respect and a voice for teachers when their powerlessness often silenced them. in years past, they were a needed equalizer of power when school districts did not handle the needs of teachers fairly. however, so often focused on the interest of teachers, unions have forgotten the people the education system is truly meant to serve: students. nothing highlights this distorted focus better than teacher collective bargaining agreements,3 aimed not on bettering education for students, but on furthering the interests of their instructors. due to the influence of teachers’ unions, when student and teacher interests conflict, these documents reflect terms that first serve teachers before anyone else. specifically, collective bargaining agreements often entrench lax teacher evaluation procedures that protect poor teachers and seniority rules thwart efforts to put top teachers in front of the highest-need students. to right the educational ship, the nation must make addressing and correcting the problems enshrined in these documents a top priority. this note will closely examine the ways in which students across the united states are dramatically underachieving and will demonstrate how this recent history of poor performance is symptomatic of teacher collective bargaining agreements that do not properly balance the interests of teachers and students. the piece will conclude by offering recommendations of how to change contract provisions to best facilitate student academic improvement throughout the country. part ii will discuss the history of unionization and teacher collective bargaining, focusing on way in which both were implemented to combat teacher exploitation. part iii will look closely at the many ways in which students are underachieving nationally and demonstrate how this underperformance is directly linked to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 see table 135: average math scale score of 4th-grade public school students and percentages attaining math achievement levels and having 5 or more hours of math instruction per week, by state or jurisdiction: selected years, 1992 through 2009, nat’l ctr. for educ. statistics (2009), available at http://nces.ed.gov/programs/digest/d09/tables/dt09_135.asp; table 136: average mathematics scale score of 8thgrade public school students and percentage attaining math achievement levels, by level of parental education and state or jurisdiction: selected years, 1990 through 2009, nat’l ctr. for educ. statistics (2009), available at http://nces.ed.gov/programs/digest/d09/tables/dt09_136.asp; see table 122: percentage distribution of 4thand 8thgrade public school students, students' average reading scale scores, and percentage of students at or above selected reading achievement levels, by jurisdiction or specific urban district and race/ethnicity: 2007, nat’l ctr. for educ. statistics (2009), available at http://nces.ed.gov/programs/digest/d09/tables/dt09_122.asp. 3 for the purposes of clarity from the outset, it would be beneficial set out clearly what a collective bargaining agreement is. a collective bargaining agreement is a contract between a school district and a teachers’ union that sets out many of the terms on which the teachers in that district will be employed. teachers’ union/collective bargaining, enotes (oct. 25, 2011, 1:31 am), http://www.enotes.com/everyday-law-encyclopedia/teacher-s-unions-collective-bargaining; collective bargaining agreement, businessdictionary.com (oct. 25, 2011 1:59 am), http://www.businessdictionary.com/definition/collective-bargaining-agreement.html. these agreements cover a wide range of topics such as retirement benefits, tenure, working hours, grievance procedures, and sick leave. id. 202 contracting away success vol. 2:1 flawed contract provisions. finally, part iv will suggest a number of potential changes to problematic provisions that may aid in improving student performance across the country.4 ii. history of teachers’ unions and collective bargaining a. the conception and birth of teacher unionization the history of teachers’ unions reaches back only slightly more than a century in the united states. when the first teachers’ professional organization was founded in 1857, nothing resembling the teachers’ unions of today existed.5 it was not until the latter portion of the nineteenth century and early years of the twentieth century that the teacher unionization movement began to gain momentum.6 while the reasons for their emergence at this time were numerous, two of the most prominent were severe underpayment and terrible working conditions.7 though teachers across the nation shared these !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 at the outset of this endeavor, it is critically important to understand that the purpose of this project is not to condemn unions or the presence of unions in the nation’s public schools. as noted, unions as a whole, and specifically teachers’ unions, have contributed greatly to giving exploited workers a voice and providing their members with a sense of dignity and honor in their work that often did not exist when these organizations were not present. despite some of the problems these organizations now face, teachers’ unions continue to fill this role even today. grave disparities in bargaining power almost inevitably lead to the weaker player submitting to the opportunistic terms of the stronger, and unions play the important role of the leveling agent in this economic equation, serving as a stop gap measure against exploitative business practices. this note, both explicitly and implicitly, recognizes these truths. yet, as is the case with most positive things, there is undoubtedly room for improvement. teachers’ unions, like all other institutions, have weaknesses and have in some ways strayed from principles upon which they were first created, and to continue in the tradition of serving as assets in the nation’s education system, must critically examine where they have dropped the ball. such a probing gaze into the mirror of history and organizational priorities is paramount for their continued success. this note, stated simply, is an effort to erect that mirror before them. it is the goal of this project to, while recognizing the good these organizations have done, highlight a glaring flaw in these organizations’ practices: collective bargaining. while bargaining as a practice is important and is the vehicle through which unions have been able to gain much for teachers, if driven by the wrong priorities, it can damage the system that it meant to strengthen. this note suggests that teachers’ union priorities have done exactly this, focusing on the needs of teachers to the detriment of students’ needs rather than creating a balanced symbiosis in the education system, where all parties benefit and feel empowered and served by the system in which they function. at its heart, then, the purpose of this note is to highlight this flaw, demonstrate that it truly is one, and set out ways to correct it in hopes that unions will implement these changes first and foremost to help america’s students receive excellent educations but further to improve themselves as organizations and thus sustain their existence and utility in the education system. 5 myron lieberman, the teachers unions: how the nea and aft sabotage reform and hold students, parents, teachers, and taxpayers hostage to bureaucracy 12 (1997) (“the nea was founded by school superintendents in 1857. for over one hundred years thereafter it was an anti-union organization even when its teacher members greatly outnumbered administrators.”). the organization referred was the national educational association (nea). id. 6 see generally marjorie murphy, blackboard unions: the aft and the nea, 1900–1980, 7–79 (1990) (discussing the factors which led to teacher unionization and the way in which teachers’ unions eventually took form). 7 id. at 7, 34 (describing teachers’ and students’ frustration at the clarke school in chicago with the fact that the school water supply had been condemned, forcing teachers to boil water to ensure children had clean drinking water at school; also referencing the school board’s continued denial of a wage raise for teachers; finally, describing the dilapidated condition of many of the school buildings in which teachers were forced to teach and children were forced to attend school). 2012 columbia journal of race and law 203 problems, they had a particularly harsh effect on the public school teachers of chicago, and as a result, chicago served as the genesis of the teacher unionization movement.8 like many cities at the time, the problems facing chicago’s schools stemmed principally from grave underfunding.9 due to a tax structure extremely unfavorable for raising public education funds and the absence of any other source of public funding, chicago teachers received poor salaries.10the fact that teachers were asked to teach under unsanitary and unsafe conditions made matters even worse.11 in one instance, teachers were forced to teach in neighborhoods wrought with typhoid fever and other serious illnesses, and they were exposed to these diseases on a daily basis through contact with students.12 moreover, even the designated school buildings in which teachers were asked to teach were in very poor condition.13 when the chicago school board did not have adequate funding to provide proper school buildings, schools were set up in storefronts or other old buildings, and often had hazardous plumbing and ventilation systems.14 the conditions were deplorable for both teachers and students, and due to lack of available capital, there was seemingly little that could be done about it within the funding structure that existed at the time. in fact, in response to the typhoid epidemic of 1902 that led to the contamination of school water, the chicago board of education could offer no solution due to its lack of resources but to advise teachers and students: bring a bottle of water to school.15 on top of the challenges of poor pay and conditions, chicago teachers also were faced with issues of an unfavorable administrative structure. in an attempt to gain more control over the operation of individual schools within chicago, high-ranking chicago school administrators began to encourage !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8 lieberman, supra note 5, at 10–11 (explaining how the first national teachers’ union was created in chicago due in substantial part to the chicago teachers federation, a local teachers union representing chicago teachers). 9 id. at 14. 10 id. (“some schools operated strictly out of the old sixteenth-section provision of the northwest ordinance of 1787 which granted to the public domain every sixteenth section of land for the purpose of building schools. this portion of land was most frequently sold, although some districts simply rented the land or used it as collateral to borrow money for school construction. in small rural communities schools were built by community cooperation, whereas in larger towns and cities a portion of the county taxes were set aside for schools. unfortunately for urban teachers and pupils, most taxes were based on land ownership or (less frequently) on real property. rural-dominated state legislatures tended to hold down the tax rate for school purposes, making it difficult for urban schools to take advantage of the new wealth produced within their reach. in the late nineteenth century most cities were asking for separate taxes or were revising city charters to include special city taxes.”). 11 id. at 34. 12 lieberman, supra note 5, at 34. (“teachers worked in typhoid-ridden neighborhoods and were exposed to all the diseases children brought to school.”). 13 id. 14 id. (“they worked in old buildings, or in storefronts and temporary buildings, often with no plumbing and dangerous ventilation systems.”). commenting on the lack of resources many chicago schools had at the time, historian marjorie murphy writes, “there were no fire escapes, very few schools had playgrounds, and because coal contracts were political arrangements, contractors would skimp on coal delivery unless the principal or schoolteachers pressured the alderman for sufficient coal.” id. at 34–35. 15 id. at 7 (“the school water-supply system had been condemned by the board of health in august, and because a late summer typhoid epidemic had claimed hundreds of young lives, the board of education responded by urging the schoolchildren to carry water bottles to school. many children did not have water bottles and drank contaminated water from outdoor fire hydrants.”). 204 contracting away success vol. 2:1 centralization of decision-making, this policy shift manifesting itself in two primary ways.16 first, teachers were required to teach according to a uniform schedule implemented in all schools throughout chicago, essentially eliminating the discretion of a teacher to make changes to lesson plans based on the specific needs of their students.17 second, teachers were pressured by administrators to hold students to unreasonably high standards of performance to satisfy administrative performance goals.18 however, the board of education’s paternalism did not stop at how teachers decided to run their classrooms; it extended to issues of teacher employment as well. superintendents who were proponents of centralized administration would often transfer teachers out of a school against the teacher’s will and in some instances even fired teachers without any personal knowledge of their teaching ability.19 in addition to the many problems suffered by all teachers, female teachers struggled with their own unique set of issues. prior to the mid-nineteenth century, the teaching profession was dominated by men.20 however, in the early decades of the nineteenth century, the societal conception of what was needed to make a good teacher began to shift.21 kindergarten through twelfth-grade education came to be seen as not solely about the intellectual development of an individual but in large part about gaining an understanding of societal standards of conduct and proper social behavior.22 due to the standards of female deportment that existed at time, females slowly came to be seen as ideal for teaching the important societal values.23 as a result of this shift in societal priorities for education and the way women fit into this matrix, women started to move into the education profession in larger numbers as the nineteenth century moved forward.24 however, in many ways, it was this success by women that exposed the latent sexism that existed in the field of education. this was most clearly seen in the types of jobs within the educational world that were available to women and the pay they received for their work. though women gained significantly more teaching positions during the nineteenth century, the vast majority of administrative positions were still held by men.25 this sexism was reflected in national !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16 id. (describing the tension between teacher and school district administrators due to administrators’ desire to “impose a centralized pattern on the city’s schools”). 17 lieberman, supra note 5, at 8 (describing how the principal of the clarke school in 1902 tried to force all the school’s teacher to teach “according to a centralized, citywide schedule.”). 18 id. for instance, in 1902, a math teacher at a chicago public school was forced by the school’s principal to fail students who did not hand in perfect homework assignments. despite students’ reasoned protests that perfection was an unfair expectation, the principal was uncompromising in sticking to the new administrative scheme. id. at 8. 19 id. at 10. this practice was made worse by the fact that it was generally the case that teachers who suffered from such decisions had strong ties to the community in which they taught and often had a special understanding of how to serve the community in a particular area. see id. at 12. thus, their removal from the community was not only unfair to the teacher, as such removals were generally unwarranted, but harmed the community as such removals represented the loss of a strong educational asset. see generally id. at 33. 20 see id. at 12 (indicating that women had not become the dominate in the field of education by 1830). 21 see id. 22 see lieberman, supra note 5, at 12. 23 see id. 24 id. at 13 (pointing out that, after the civil war, most teachers were women). 25 id. the fact that, by the end of the civil war, most teachers were women and most principals were men is representative of the clear limitations within the field of education for women at the time. id. 2012 columbia journal of race and law 205 education association (“nea”) practices, as the organization did not even admit women as full members until 1866, and even when it did, it was rare for a woman to hold a leadership position within the organization.26 the nea remained male-dominated through the end of the nineteenth century.27 yet just as a shift in educational priorities had taken place toward the beginning of the nineteenth century, a similar shift occurred from the end of the nineteenth century through the early years of the twentieth century. this shift, however, was toward greater teacher professionalism.28 while the effects of this change were far-reaching and meant different things for the different cities in which it was introduced, in chicago, this shift represented an overall negative reorientation for the city’s female schoolteachers. for the chicago administrators trying to push this agenda, professionalism, in part, meant a break from the idea that relatively uneducated female teachers were valuable assets in the classroom.29 while at first glance, a shift toward requiring more education for teachers appeared to be a positive change for the education system, it substantially limited women’s opportunities in the teaching profession. chicago politicians and other people of influence began to call for greater teacher education, forcing many female teachers to pay for continued education far outside their financial ability or be denied employment or optimal pay.30 although the teacher unionization movement was both a male and female effort, the district’s female constituency played a more significant role because of the many problems with which women !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 26 id. at 48–49 (“within the nea there were few constitutional mechanisms by which women could gain recognition. in 1870 women were granted the right to hold office in the nea, but ‘as was quite natural,’ they tended to predominate in the kindergarten, elementary, child-study, and arts departments. one woman, in 1888, became a member of the more influential higher education department, but only two or three women entered into the superintendence department.”). 27 see generally lieberman, see supra note 5, at 48. 28 see id. at 19. 29 see generally id. at 27–31. 30 id. at 30. right before the turn of the century, well-known scholar and politician william rainey harper introduced a bill which advocated for greater educational requirements for teachers. id. essentially the bill suggested that if teachers without a certain level of educational achievement wanted to maintain their employment, they would have to return to school to obtain the requisite degree. already severely underpaid, most teachers did not have the financial resources to meet this requirement. id. at 7. thus, in effect, the bill called for the termination of a large percentage of the current educational workforce and created a bar on an educational career for individuals who did not come from a financially elite background. though the bill would apply both to male and female teachers, the effect of the legislation would be particularly burdensome on female teachers as they often had less education than their male counterparts. see generally id. 23–79. while this bill was strongly opposed and finally defeated in 1899 for these and other clearly problematic provisions (such as the call for fewer female teachers in schools), in 1905, chicago teachers were informed that in order to receive a pay raise they would have to take a certain number of courses at either the university of chicago, northwestern university, or the cook county normal school. id. at 30–31. teachers who took the classes at other institutions were denied the opportunity for a raise. id. at 30. however, as a result of the prohibitively high cost to attend these universities, a large percentage of chicago schoolteachers were unable to meet the district’s requirement. id. at 30. while all teachers were affected by this measure, as previously suggested, female teachers were most severely impacted. see generally id. 23–79. making the situation worse was the fact that even when women began to enter the teaching profession with stronger educational backgrounds due to the heightened chicago requirements, men were still favored for professional advancement opportunities. despite the seeming advancement women had made by coming to represent the vast majority of chicago’s teaching population, female teachers’ success had served in many ways as little more than a medium through which a male-dominated education system showcased its gender-based discrimination. 206 contracting away success vol. 2:1 struggled.31 in 1897, after gaining some level of political influence through association with male workers unions, female teachers in chicago formed the chicago teachers’ federation (“ctf”).32 the organization quickly gained popularity and influence and became the leading voice for female teachers at the turn of the century.33 by 1902, the organization had 5,000 members, and in that same year the ctf affiliated with the much larger chicago federation of labor, thereby increasing the ctf’s influence and political power. 34 the following year, the ctf/cfl conglomerate succeeded in obtaining a salary increase for chicago teachers.35 in just a few short years, ctf had gone from obscurity to one of the major political forces in the city of chicago.36 the union was winning for teachers that which they could not win alone. despite the success experienced by the ctf and other teachers’ unions that had formed in chicago, the city’s teachers still desired the influence and notoriety that a national teachers union could offer.37 while several efforts had been made to create such a union, all attempts had failed to yield a functional organization.38 it was not until 1916 that teachers in chicago created a national teachers’ union and affiliated with the american federation of labor (“afl”), a national labor union.39 in response to an injunction issued against a chicago board of education policy prohibiting teachers from joining unions, ctf sent invitations to a number of local unions to join them in creating the first national teachers union.40 the organization was officially established on april 15, 1916, and after creating the union, the organizers sent the new group’s charter to local unions around the country enlisting their membership and support.41 chicago unionists applied for the affiliation of their new organization with the afl, and on may 9, the national labor union granted their request.42 after years of waiting and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 31 see generally id. at 43–100 (setting out many of the problems which with female teachers dealt during the late nineteenth and early twentieth centuries). 32 see lieberman, supra note 5, at 62, 68. 33 id. at 61 (“of all the new teachers’ unions, the one organized by public school teachers in chicago was the most powerful and influential.”). 34 id. at 67. 35 id. at 68. 36 id. (“the [ctf] in eight years had become a major power in city politics.”). 37 see lieberman, supra note 5, at 70–71 (“[union leaders] haley and goggin made no secret of their ambition and never denied that the vote was an important attraction of schoolteachers to the union. but they made eloquent class pleas as well, spoke idealistically of the potential of the labor movement, and pointed out that they would inspire other women workers to join the union.”). 38 id. at 72. 39 id. at 11. 40 id. (describing the formation of aft). this board of education policy was known as the loeb rule. murphy, supra note 6, at 81. essentially, the rule stated that if teachers joined a union, they would not be rehired by the district. id. discussing how problematic this regulation was for chicago teachers at the time, murphy writes, “[the loeb rule] challenged the whole idea of unionism not from the professional perspective but from a perspective outside the profession, from the boards of education that were packed with businessmen. in this sense it was a classic anti-union drive. for the budding teachers’ movement it was a disaster. one chicago teacher remarked, ‘chicago has been free of floods, earthquakes, volcanic eruptions and tidal waves. still it had its fire of 1871 and its loeb rule of 1915.’” id. 41 id. 2012 columbia journal of race and law 207 fighting on the local level, teachers finally had created the network that would grant them a unified national presence. a national rival to the paternalism and gender bias of the nea had finally arrived.43 b. the rise of collective bargaining despite the success of its formation, the aft’s next major expansion and acquisition of influence did not take place until some forty years later. the aft had been born through the collaborative efforts of schoolteachers in chicago. however, the next step in its maturation would come about in the nation’s largest urban center: new york. 44 this time the fight would not be for unionization, as unions at that point had been longtime fixtures in new york city, but for an efficient way for teachers to get the employment protections and privileges they deserved. while unionization had given teachers a voice that previously had not existed, in 1961 teachers won the right to collectively bargain with the school district, giving legal weight to the protections for which that voice had long cried out.45 the effort to secure collective bargaining with the new york board of education was focused in large part on the issue that had been a perennial concern for schoolteachers across the nation: underpayment.46 led by young union leader david seldon and united federation of teachers (“uft”), an aft local affiliate, new york teachers urged the board of education to allow teachers to bargain collectively.47 such a procedural shift would give teachers much greater leverage in the bargaining process. after the board twice promised to allow collective bargaining and both times reneged, new york teachers went on strike.48 the strike’s burden on the school system was so great that within the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 42 lieberman, supra note 5, at 11. 43 however, while the creation of the aft was a huge success for teachers and encouraged the unionization of teachers across the country, the organization remained relatively small in its early years. id. two reasons principally accounted for the union’s inability to grow during that time. first, post-world world i anti-union sentiment nationally encouraged school boards and administrators across the country to take measures that would impede union growth. id. while these same school boards and administrators had been opposed to unionization and the change they represented during the first two decades of the twentieth century, the widespread public opposition to unions after the war provided these educational leaders with the influence they needed to successfully hinder union growth. id. their tactics were so successful that by 1927 less than one-fifth of the aft locals which had originally been chartered were still in operation. id. second, the size of the nea’s membership and the number of districts in which the organization had affiliated local organizations made it difficult for the aft to take a hold in a number of areas. id. nea opposition to the aft was fierce and despite the problems that existed in the nea, its teacher membership was strong. id. at 12. as a result, the aft had a very difficult time recruiting teachers away from its rival organization. 44 id. at 13 (telling the story of how new york became the first place in the country where teachers were given the right to bargain collectively). 45 id. 46 murphy, supra note 6, at 213. one of the financial issues which was particularly a problem for teachers at the time collective bargain was introduced was lack of sufficient payment for participation in “extracurricular and cocurricular activities.” teachers wanted increased pay for taking extra time to be involved in these programs. they felt particularly justified in this stance as the nation was focusing on issues of youth delinquency and finding ways to keep children occupied during the afternoons. id. 47 see id. at 213. 48 id. 208 contracting away success vol. 2:1 day, the board agreed to allow a vote to assess teacher interest in collective bargaining.49 as expected, teachers overwhelmingly voted in favor of collective bargaining.50 the next step was to determine which of the various unions present in new york at the time would represent teachers in bargaining with the school district. the decision was made that only one organization would represent all teachers at the bargaining table, and as a result, the board first held a vote to make this determination.51 despite large contingents of new york teachers having other union affiliations, the uft won by a landslide. in 1961, the uft began negotiating a collective agreement with the district on behalf of all new york teachers for the first time.52 shortly after the uft’s victory in new york, the use of collective bargaining by teachers spread throughout the country.53 in 1961, the majority of teachers were employed under individual contracts.54 yet only one decade later, in 1971, more than half of all teachers nationally were employed subject to collective bargaining agreements.55 additionally, the proliferation of collective bargaining led to increased membership in the nation’s two major national teachers’ unions. from 1961 to 1965, the aft increased !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 49 id. 50 murphy, supra note 6, at 13. 51 id. at 13. in bargaining with school districts, teachers’ unions borrowed the idea of exclusive representation, meaning that only one union would serve as the bargaining representative on behalf of all teachers regardless of whether or not all teachers belonged to that union. see generally id. at 215. 52 murphy, supra note 6, at 215; lieberman, supra note 5, at 13. despite the success of gaining a seat at the bargaining table, teachers still had a difficult time getting the benefits they felt they deserved. after almost after a year of bargaining over a wide range of issues, the uft and new york teachers were unsatisfied with the progress in bargaining that they had made. murphy, supra note 6, at 215. feeling that there was no other option to show themselves as a strong unit that would stand firmly on its demands, twenty thousand teachers went on strike in the spring of 1962. id. the strike devastated the operations of the school system, and though the district did not want to relent on its stances, its leaders knew it could not operate so heavily understaffed. id. at 216–17. the pressure the strike placed on the school system was exactly what the uft and teachers wanted, principally hoping their unified action would earn them a raise in pay. id. at 215–17. due to the great pressure the strike placed on the school system, the teacher’s financial demands were finally met and the strike was called off. id. at 217. while both the aft and the nea celebrated the uft’s success in new york, the two national rivals initially differed greatly with respect to how collective bargaining should be conducted. unlike the aft, which only represented teachers and thus only looked to serve their interests, the nea had a much broader constituency, representing both teachers and administrators. lieberman, supra note 5, at 12. additionally, since its inception, the nea had taken a strong stance against unionism. id. at 15. as a result, while the interests of their teachers were important to the organization, so too were its administrator’s interest. see generally id. at 12. thus, the nea advocated for more amiable discussion of contract terms than it believed took place under collective bargaining. id. at 15. it supported “professional negotiation” to collective bargaining, though in truth the distinction between the two practices was negligible. id. however, this and other major policy differences (the other major policy difference being the right to strike which the nea had traditionally opposed but the aft supported after the mid-1960’s) between the two organizations would melt away over the course of the 1960’s and 1970’s as the nea began to stray from its roots and adopt an identity of a true teacher’s union. id. at 15–16, 24. 53 more specifically, the use of collective bargaining began to spread as states began to pass laws to give legal force to the practice. lieberman, supra note 5, at 18. 54 id. at 19. 55 id. 2012 columbia journal of race and law 209 its national membership from 60,715 teachers to 112,000.56 the nea saw an even greater increase in its size over that time period, growing from 765,616 members to 943,581.57 while a number of factors account for the nea’s significantly larger growth over this time period, the nea’s move away from its traditional identity of a professional association in which school administrators dominated and toward a true union guided by teachers played a substantial role in this large expansion of its membership.58 however, as this transformation took place, the competition that had always existed between the nea and aft grew even fiercer as both groups fought to gain bargaining rights in each district that had adopted collective bargaining and increase their organization’s membership.59 today, the nea and the aft have over three million members combined and have collective revenues of over $1.3 million dollars annually.60 it is an understatement to say that the influence of these unions and collective bargaining is vast. they continue to define the rights and benefits that countless teachers across the nation enjoy. thus, the histories of teacher unionization and collective bargaining make clear the great contribution these institutions made to the welfare of teachers over the course of the late nineteenth and twentieth centuries. at historical moments when teachers were undervalued and taken for granted, unions and collective bargaining gave educators a vehicle through which they could demand the respect they deserve. yet this contribution to the professional lives of teachers is not simply a narrative of the past. though over the course of the twentieth century the appreciation and societal valuation of teachers has continued to rise, unions still ensure teachers are treated with dignity and respect by school districts, ensuring the payment and benefits they rightfully deserve. indeed, the continued presence of unionization and collective bargaining undoubtedly shields teachers from unfair treatment. however, despite the good these organizations have done and continue to do, their current narrow focus on the teachers they represent has in many instances led to a skewed set of priorities, reinforced by collective bargaining, which have had adverse effects on the academic success of students. the next part of this note speaks to this educational shortcoming of american children and draws a chilling connection between these failures and teacher collective bargaining and bargaining agreements. iii. unions, collective bargaining, and student underachievement as the preceding discussion indicates, teacher unionization and the implementation of collective bargaining have had, and continue to have, significant positive impact on teachers’ rights, and effectively further the interests of educators across the country. however from their inception, the purported goal of teachers’ unions has not only been to serve the teachers they represent but the students who fill their teachers’ classrooms.61 yet sadly, unions today have strayed far from this vision, contributing in many ways to the decline of the united states’ once strong education system with a focus that has shifted from !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 56 id. 57 id. 58 see id. at 19 (describing the nea’s gradual adoption of union practices and the subsequent increase in membership). 59 lieberman, supra note 5, at 28. 60 id. 61 nea’s vision, mission, and values, nat’l educ. ass’n, http://www.nea.org/home/19583.htm (last visited jan. 15, 2012) (“our mission is to advocate for education professionals and to unite our members and the nation to fulfill the promise of public education to prepare every student to succeed in a diverse and interdependent world.”). 210 contracting away success vol. 2:1 shared concern about student achievement and the interests of educators to the interests of teachers alone.62 currently, the nation’s education system can be described in no way other than abysmal. once an exemplar to the world of educational excellence, the united states now trails numerous nations in its ability to effectively educate its next generation. proficiency rates in all academic disciplines are low, drop out rates are high, and students continue to slip further and further behind the rest of the world. the nation finds itself at a real crisis moment. that many factors have contributed and continue to contribute to this disaster in our education system is undoubted. yet as spending on education continues to rise, which would seemingly, at least in part, address problems associated with the lack of financial resources, the hunt for the culprit of our failed education system must continue. what really is the cause for the fall from grace the nation’s education system is currently experiencing? a close analysis of the teachers’ unions and their practice of collective bargaining reveal that these institutions have contributed greatly to our educational decline. stated simply, certain provisions63 that have become standard in collective bargaining agreements across the country have enshrined a lack of accountability for teachers in our education system and made it difficult for school districts to place top teachers in front of the students who need them the most. even in historically disadvantaged areas with underfunded schools, it has been shown that strong teachers can spur students to academic success. thus, the institutions play a substantial role in the lack of student achievement seen nationwide through establishing contract terms that undermine teacher excellence and efficient use of human capital. for minority children who are often served by the worst schools in poor areas, the effects of these provisions are even greater. this part of the note will set out in detail many of the areas in which american students are underachieving and argue that their poor academic performance in large part is due to the influence of teachers’ unions in the education system and, more specifically, collective bargaining agreements. a. an education system on life support american student achievement has reached a critical point. this becomes especially clear in examining how student performance in the united states ranks against that of other nations. at one time, the united states was a world leader in education production, producing student scores in math, science, and reading far superior to those scores posted by students in any other countries.64 currently, however, the international educational landscape looks quite different. a recent study concerning international achievement in math conducted by researchers at stanford university’s hoover institute revealed that of the thirty-four member nations of the organization for economic co-operation and development, better known as the oecd, the united states outranked only turkey, greece, portugal, and mexico in the percentage of students who have an advanced level of proficiency in math.65 even !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 62megan bedard, d.c. teachers’ union and michelle rhee make nice, takepart (apr. 8, 2010), http://www.takepart.com/article/2010/04/08/dc-teachers-union-and-michelle-rhee-make-nice (stating that michelle rhee feels teachers’ unions prioritize the interests of teachers ahead of students). 63 as will be discussed later in this part, some of the provisions that have become staples in teacher collective bargaining agreements but further the problems herein discussed are layoff provisions based on seniority, prohibition of merit pay, and teacher evaluation provisions. 64 many nations passing u.s. in education, supra note 1, at a4 (stating that in the years following world war ii, the united states’ education system was the strongest among all countries in the world; however, at this point, many countries have surpassed the united states both in lower dropout rates and achievement on standardized examinations). 65 vincent carroll, not enough top students, l.a. times, dec. 12, 2010, at d-03. the oecd is an international policy organization that focuses on economic and social development in countries throughout the world. about the organisation for economic co-operation and development, oecd (mar. 1, 2011, 1:30 am), 2012 columbia journal of race and law 211 more astonishing was its finding that sixteen other countries, nearly half of the organization’s membership, double the united states in the percentage of advanced math students, indicating not only that the united states is lagging slightly behind but in some senses is being lapped by other nations in the race of educational productivity.66 only reinforcing this unpleasant reality is the fact that the united states has a higher high school dropout rate than all oecd countries except for mexico, new zealand, turkey, and spain.67 yet perhaps even more disturbing is the way the united states stacks up against its neighbor to the north. across all academic disciplines, canadian fifteen-year-olds, on average, are more than one full academic year ahead of their american counterparts in their educational development.68 while the united states’ international rankings clearly illustrate the nation’s educational mediocrity, statistics solely addressing domestic issues of student achievement are equally as staggering if not more so. though this is the case across many academic areas tracked by researchers, one area in which this is particularly true is american students’ performance in reading. in 2007, the national center for educational statistics found that only 32% of fourth graders nationally were able to read proficiently at a fourth grade level.69 however, in many of the nation’s major urban centers this number was substantially lower. in los angeles, for instance, the second-largest school district in the nation, only 13% of fourth graders were deemed to be proficient readers.70 the level of fourth grader proficiency in washington, d.c., was only slightly higher at 14%.71 new york was unable to get three quarters of its !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! http://www.oecd.org/pages/0,3417,en_3673405236734103_1_1_1_1_1,00.html (last visited mar. 1, 2011). using data on a wide range of subject matter, ranging from different countries’ taxation and pension systems to international investment, the organization sets out to predict future economic and social trends and create policy that best serves the development in these areas. the organization uses its numerous relationships with influential organizations and governments throughout the world to install policies which it believes are most conducive to economic and social development. id. the oecd council retains the decision-making power within the organization, establishing the direction of the organization and setting its goal at its annual ministerial meeting. who does what, oecd, http://www.oecd.org/pages/0,3417,en_36734052_36761791_1_1_1_1_1,00.html (last visited jan. 15, 2012). the council comprises a representative from each member country and an additional representative from european commission. id. all decisions are reached through consensus. id. currently, there are 34 member countries to the oecd: australia, austria, belgium, canada, chile, czech republic, denmark, estonia, finland, france, germany, greece, hungary, iceland, ireland, israel, italy, japan, korea, luxembourg, mexico, netherlands, new zealand, norway, poland, portugal, slovak republic, slovenia, spain, sweden, switzerland, turkey, the united kingdom, and the united states of america. members and partners, oecd, http://www.oecd.org/pages/0,3417,en_36734052_36761800_1_1_1_1_1,00.html (last visited jan. 15, 2012). 66 carroll, supra note 65. 67 many nations passing u.s. in education, supra note 1. 68 id. at a4. 69 percentage distribution of 4thand 8th-grade public school students, students' average reading scale scores, and percentage of students at or above selected reading achievement levels, by jurisdiction or specific urban district and race/ethnicity: 2007, nat’l ctr. for educ. statistics (2009), http://nces.ed.gov/programs/digest/d09/tables/dt09_122.asp [hereinafter distribution of reading scores by urban district and race]. as defined by the national center for education statistics, a student having a basic level of competency has “partial mastery of prerequisite knowledge and skills that are fundamental for proficient work at a given grade.” id. proficient indicates “solid academic performance” for a child’s grade level. id. student as this level “have demonstrated competency over challenging subject matter.” id. finally, advanced “signifies superior performance.” id. 70 id. 71 id. 212 contracting away success vol. 2:1 fourth graders to reading proficiency at a grade-appropriate level.72 adding to this general lack of achievement across the nation is the problem of significant disparities between white students and their minority counterparts in reading competency. nationally, 42% of white fourth grade students were proficient readers in 2007 while this number for black students was nearly thirty percentage points lower at 14%.73 latino students performed only moderately better than their black classmates, registering a 17% reading proficiency rate.74 eighth grade student performed even worse than their fourth grade counterparts both nationally and in the country’s largest cities as well. out of all american eighth graders, only 29% were proficient readers, three percentage points below their fourth grade counterparts.75 eighth grade students in los angeles, washington, d.c., and new york registered proficiency rates of 12%, 12%, and 20%, respectively.76 particularly troublesome, once again, was the vast difference in proficiency rates for white students and their minority classmates; white eighth graders have a proficiency rate nationally of 38%, which more than triples the black reading proficiency rate of 12%.77 latino students, though not performing as poorly as black eighth graders, still fell vastly short of white students in reading competency with only 14% of their population demonstrating reading proficiency.78 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 72 id. 73 id. 74 distribution of reading scores by urban district and race, supra note 69. in many of the nation’s largest cities, the gap in reading competency between white fourth grade students and black and hispanic fourth graders is even larger than it is nationally. in atlanta, for instance, 71% of white fourth grade student were proficient in reading in 2007 compared only 10% of black students. in washington, d.c., black and hispanic fourth graders registered proficiency levels of 9% and 15%, respectively, while 74% of white students in the district of columbia were proficient readers. even in los angeles, where a significantly smaller percentage of white students were proficient readers than in cities like atlanta or washington, d.c., the achievement gap between white and black and hispanic fourth graders is quite large. there, 37% of white fourth graders were proficient readers compared to 13% of black students and 8% of hispanics. id. 75 id. 76 id. 77 id. 78 id. as is the case with fourth graders, the achievement gap between white eighth grade students their black and hispanic peers is at its largest in many of the nation’s major urban centers. in houston, 52% of white students were found to be proficient in reading according to the 2007 national center for educational statistics study while the proficiency level for black and hispanic students was significantly lower at 12% and 13%,respectively. though the gap was somewhat smaller in new york, it was still larger than the national achievement divide: 41% of whites, 11% of blacks, and 13% of hispanics being proficient in reading. los angeles again showed one of the largest gaps among the cities studied, 41% of white eighth graders but only 6% of black and 8% of hispanic students having gained proficiency in reading at an eighth grade level. id. the national center for educational statistics concerning student achievement in mathematics is equally as troubling, reporting that in 2009 only 38% of all american fourth graders receiving five or more hours of instruction in math each week were at or above a proficient level in the subject, while only 6% of these children were considered advanced. table 143: average mathematics scale score of 4th-grade public school students and percentages attaining mathematics achievement levels and having 5 or more hours of mathematics instruction per week, by state or jurisdiction: selected years, 1992 through 2009, nat’l ctr. for educ. statistics (2009), http://nces.ed.gov/programs/digest/d10/tables/dt10_143.asp.). 19% of fourth graders, however, had not even reached a basic level of competency in math, more than three times the percentage of advanced students. in some of the nation’s largest and most populous states, the numbers are even worse. in california, for instance, the center found that more than a quarter of the fourth graders receiving at least five hours 2012 columbia journal of race and law 213 not surprisingly, the performance of american students does not improve once they leave the elementary and junior high school levels. high schools students, too, are performing at unacceptably low levels. while numerous metrics are used to quantify the performance of students at the high school level, student dropout rates are one of the measures widely employed to make this determination.79 an analysis of these statistics tells a quite similar story as the reading proficiency rates discussed above. for instance, nationally, more than one in every four students are not graduating from high school.80 large urban school districts register an even higher percentage with 40% of students dropping out.81 those districts characterized by significant socioeconomic and racial segregation serving children from low-income !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! of math instruction each week had not reached even a basic level of competency in the subject. only 30% percent of fourth grade californians were proficient in math, while a much smaller group, 5%, were considered to be at an advanced level in the subject. though the statistics tell a slightly more encouraging story in texas, the difference is anything but substantial. while 38% of the fourth graders there were considered to be proficient in math in 2009, only 4% were advanced, one percentage point below that of california. id. however, the problem gets worse. statistics seem to indicate that as children get older, those falling to below basic levels of competency in math increases substantially. while 19% of fourth graders nationally were rated as having a below basic grasp of math in 2009, as stated above, 29% of eighth graders in the same year were found to be at a below basic level of understanding. id.; table 144: average mathematics scale score of 8th-grade public school students and percentage attaining mathematics achievement levels, by level of parental education and state or jurisdiction: selected years, 1990 through 2009, nat’l ctr. for educ. statistics (2009), http://nces.ed.gov/programs/digest/d10/tables/dt10_144.asp. 33% of eighth graders were found to be proficient in math. id. quite naturally, state statistics from california and texas reflect the same trend. the center found that 41% of california eighth graders could not achieve at a basic level in math while in texas the same could be said for 22% of the eighth grade population. id. in both of these states the percentage of students at a proficient or advanced level was not substantially different for eighth grade students. id. (23% and 5% vs. 36% and 8% in tx. the proficient numbers for these states could be argued to be substantially different, but he tackles these numbers below.) in washington, d.c., the nation’s capital, where the recent discussion around education reform has been particularly heated as a result of aggressive changes instituted by michelle rhee, the former chancellor of d.c. public schools, 60% of eighth graders did not have basic math skills in 2009. id. only 11% were proficient in the subject. id. in california, 23% of eighth graders in 2009 had reached a proficient level of achievement in math and 5% were of students were considered advanced. id. 36% of texas eighth graders achieved at a proficient level, while 8% reached an advanced level in the subject. id. 79 while researchers have found a number of metrics by which to measure student achievement, numerous have acknowledged student dropout rates has been as one of these viable measures. in fact, in her study analyzing the relationship between union presence and collective bargaining in a school district and their effect on student performance, caroline hoxby uses high school dropout rates as her sole measure of student achievement, arguing that the “measure has the advantage of reflecting local k-12 education.” caroline minter hoxby, how teachers’ unions affect education production, 111 q. j. econ. 671, 686 (1996). joe stone expresses a similar opinion of the validity of dropout rates as a measure of student achievement when he writes, “we know, certainly, that drop-out rates are highly related to student success in schools, and that students in the lower tail of student performance are much more at risk of dropping out.” joe stone, collective bargaining and public schools, in conflicting missions?: teachers unions and educational reform 47, 62 (tom loveless ed., 2000). thus, as is seen here, dropout rates have been accepted as an accurate measure of student achievement. 80 many nations passing u.s. in education, supra note 1, at a4. 81 graduation by the numbers—putting data to work for student success, educationweek (jun. 2, 2010), http://www.edweek.org/ew/articles/2010/06/10/34execsum.h29.html. the article states that six out of ten students graduate, not that 40% drop out. it is only a subtle difference. 214 contracting away success vol. 2:1 families have even lower graduation rates, generally seeing 55% to 60% of their students successfully complete high school.82 new york city—home to the largest school district in the nation—has felt the practical effects of soaring student dropout rates more than any other city in the nation. though the district’s dropout rate is far from the worst in the country, the district, which educates nearly 1.1 million students annually, loses approximately 44,000 students each year.83 yet the situation in los angeles may even be more desperate. though the los angeles united school district (“lausd”) is about half the size of new york city’s school district, lausd loses a similar number of students, claiming a graduation rate fourteen percentage points lower than that of new york.84 even the country’s brightest, most motivated college-bound students are not being adequately prepared at the elementary and secondary levels to handle the demands of college-level coursework. a 2008 study conducted by strong american schools, a project supported in part by the bill & melinda gates foundation, clearly illustrates this, pointing to a national trend of remediation at the postsecondary level due to students’ lack of academic preparedness when they arrive at college.85 the study found that one third of the nation’s college students need remedial classes upon arrival at college to provide them with the basic skills necessary to succeed at the university level.86 in terms of numbers of students, this translates to 1.3 million college students enrolling in remedial courses annually.87 at some schools, like california state university (the nation’s largest university system), the percentage of students who enroll in remedial courses is significantly higher than the national average. there, 60% of the 40,000 students who enter the school annually need remedial help in math, english, or both.88 these startling statistics are a testament to the same story told by the national center for educational statistics’ !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 82 id. as did reading and math proficiency rates, high school graduation rates varied widely among different racial groups, the percentage of white and asian students who graduate being substantially higher than that of historically disadvantaged minority groups. more than 75% of white and asian students graduate high school compared with only 56% of latino students, 54% of black students, and 51% of native american students. graduation rates for males from disadvantaged groups fall at or below 50% consistently. id. 83 id. 84 id. 85 diploma to nowhere, strong am. schs., 3 (2008), http://www.deltacostproject.org/resources/pdf/diplomatonowhere.pdf. while this source does not offer a specific definition of “remedial class,” it seems to suggest that these are classes that cover material students may have already learned or should have learned in high school to prepare them for college level work. see generally id. 86 id. 87 id. 88 id. at 4. while at first glance remedial classes do not appear to be a problem, the cost of providing remediation for such a large percentage of the nation’s college students is astronomical. between remedial courses offered at both twoand four-year public post-secondary programs, american colleges and universities spend two billion dollars annually to provide students with remedial help. id. at 3 (the researchers conducting this study arrived at the $2 billion figure as the cost of remediation across the nation annually based on the assumption that each student taking remediation course takes two classes of this type). this figure generates a per-student cost of somewhere between $1,607 and $2,008 for students enrolled in two-year public programs and between $2,025 and $2,531 for those attending fouryear public institutions. id. 2012 columbia journal of race and law 215 work: the system is failing.89 even the nation’s most ambitious students are currently not able to take from the country’s public schools the education they desire.90 though achievement has fallen across academic disciplines at the elementary and secondary levels, government educational expenditures have risen consistently over the last two decades; the vast majority of this money went toward covering the cost of student instruction.91 twenty-one years ago, during the fall of the 1989–1990, the united states’ per pupil expenditure totaled $7,849.92 of that sum, instruction costs claimed $4,735, teacher salaries and benefits accounting for $4,380.93 eight years later, at the beginning of the 1997–1998 academic year, per student expenditures had risen slightly, reaching a total of $8,214.94 per pupil instruction expenditures at that point accounted for $5,079, $4,631 of which went to teacher salaries and benefits.95 however, less than a decade after that, when the academic school !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 89 in its critique of the ability of the american education system to adequately prepare students for postsecondary education, strong american schools also notes that the 2008 national assessment of education progress (naep) found that just over one quarter of high school seniors were proficient in math and more than half did not have basic skills in science. id. at 7. moreover, only 43% of high school juniors and seniors who took the act, a standardized college admissions exam, in 2007 scored at level indicating that they were properly prepared to handle college-level math. id. 90 what is particularly interesting about the strong american schools study are the results of a survey administered by researchers to students enrolled at the time in college remedial courses, concerning the students’ perception of their academic preparedness prior to coming to college and their academic experience in high school. of the group surveyed, 80% of the students reported that they believed they were prepared to handle college-level work upon matriculation. id. at 7–8. the majority felt that they had taken the most advanced classes their high schools had to offer, and 95% of these students told researchers that they had done most or all of the work assigned to them in high school. id. discovering now, at the college level, that their work had not prepared them in the way they believed it had led to frustration on the part of the vast majority of these young adults, 80% of them stating that they would have worked harder had their schools set higher expectations for themselves. id. at 8, 12. further, most of these students had earned all as and bs in high school, while four out of five finished their secondary education with a grade point of average of 3.0 or higher (note that student transcripts were not collected by researchers and that students alone reported on their past academic record.). id. at 8. taken together, the results of this survey point to something of particular significance. the findings here make a strong case for the fact that national student underachievement does not fall principally on the shoulders of those being educated. while in high school, the large majority of the students in this survey had the desire to learn, were motivated enough to put in the necessary work to achieve, and believed they had done all they needed for college-level preparedness. that they still fell short seems to shift the culpability for their academic weaknesses away from them. thus, while there is little doubt that this group of highly motivated students is not representative of the vast majority of american students, their experiences in public schools across the united states do force the inquisitive mind to ponder who within the ecosystem of the classroom is primarily responsible for its success. though subtly, the study answers this question for itself when it states the following: “the quality of the instruction makes a significant difference, and a large majority of students rate remedial courses as much better than the high school courses they took in the same subject. the most important reasons for regarding these courses as better include better instructors.” id. at 15. 91 the condition of education 2010: public school expenditures, nat’l ctr. for educ. statistics (2010), http://nces.ed.gov/programs/coe/2010/pdf/34_2010.pdf. expenditure quantities have been adjusted for inflation using the consumer price index (cpi). id. 92 id. 93 id. 94 id. 95 id. 216 contracting away success vol. 2:1 year began in the fall of 2006, per student educational expenditures had increased substantially, then totaling $10,182.96 spending on student instruction rose significantly as well, claiming $6,207 of the total amount of per pupil expenditures.97 spending on teacher salaries and benefits also far surpassed what it had been almost a decade earlier, making up $5,574 of instruction costs.98 so what, then, is the source of the nation’s educational collapse? as previously stated, one cannot in fairness peg the blame on one element of the system. yet as student underachievement runs rampant while education expenditures rise to the highest they have ever been, an argument for lack of financial resources seems to be less and less plausible. that students are less capable now than they have been in years past also seems to be a poor argument. even for a large percentage of american children who grow up in poverty-stricken areas with parents who may not understand the value of a strong educational foundation, nothing indicates that these children, more than any others in years past, lack the capacity to achieve academically.99 yet what has been shown to have a substantial effect on students reaching their academic potential are the teachers instructing them.100 it is widely accepted that a strong instructor can make the difference between solid understanding, and, for example, needing college remediation to fill in the gaps created years before.101 it is certainly true that the united states is home to countless talented and dedicated public school teachers. these men and women not only care very deeply about the children they teach but are equally as gifted in their ability to effectively help students develop the skills they need to have successful educational careers. however, as is well known, there are far too many bad apples in the bucket. not only are some teachers unmotivated and lack the necessary level of concern for student development, others simply are not sufficiently effective communicators of crucial information.102 thus, in many respects, the nation’s teachers bear great responsibility for underachieving students.103 yet the larger problem is that which allows these poor performers to stay in the classroom: teachers unions and, more !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 96 see the condition of education 2010: public school expenditures, supra note 91. 97 id. 98 id. 99 joel klein, op-ed., what i learned at the education barricades, wall st. j., dec. 4, 2010, at a13 (“[i]t is wrong to assert that students’ poverty and family circumstance severely limit their educational potential.”). 100 see jason felch, jason song & sandra poindexter, grading the teachers; school reforms often overlook the instructors; upgrading staff quality helped a struggling campus, l.a. times, dec. 22, 2010, at a1 (addressing the importance of strong teachers in student success); see also evan thomas & pat wingert, why we must fire bad teachers: in no other profession are worker so insulated from accountability, newsweek, mar. 6, 2010, http://www.newsweek.com/2010/03/05/why-we-must-fire-bad-teachers.print.html (“what really makes a difference, what matters more than the class size or the textbook, the teaching method or the technology, or even the curriculum, is the quality of the teacher.”). 101 see, e.g., edith starzyk, good teachers make a difference—but what makes a good teacher, cleveland.com (dec. 27, 2008, 6:30 am), http://blog.cleveland.com/metro/2008/12/good_teachers_make_a_differenc.html (recognizing that research has shown that a student’s teacher is the most important factor in determining whether they are successful academically). 102 see generally bad teachers, nyc educator (feb. 9, 2006), http://nyceducator.com/2006/02/badteachers.html. 103 see generally felch, song & poindexter, supra note 100, at a1 (demonstrating the strong connection that exists between the strength of a teacher and the performance of his or her students). 2012 columbia journal of race and law 217 specifically, collective bargaining agreements. through particular contract provisions, they have focused on interests other than the needs of students. these educational institutions have purged the education system of teacher accountability and have made it difficult to provide students with the teachers best equipped to help them reach academic success. the following subsection will attempt to demonstrate the link between collective bargaining and student underachievement. b. connecting the dots: the link between underachievement and collective bargaining agreements before examining the specific contract provisions that are particularly problematic, it is important to first draw a clearer connection between poor student performance, unionization and collective bargaining. admittedly, this is not an easy task, primarily because there are likely multiple factors that play into poor student performance and it is difficult to isolate one variable and demonstrate its specific level of culpability. this is particularly the case with unionization and collective bargaining, as they may appear more removed from the day-to-day education of students than perhaps factors like school funding or parental involvement. yet a number of studies conducted over the last four decades illustrate the connection does exist. the most recent of these studies is caroline hoxby’s work, entitled “how teachers’ unions affect education production.”104 hoxby approaches the question of union effect on student achievement by examining the relationship between school inputs and high school student dropout rates. more specifically, hoxby looks at teacher salary, total cost of instruction, and workplace conditions, among other things, in both union and non-union school districts and compares these findings with the relative dropout rates in these two types of districts.105 after an extensive mathematical analysis, hoxby’s findings are consistent with the idea that unions and collective bargaining have a negative effect on student achievement. with respect to the cost of instruction, the author finds that unionized districts spend on average 12% more money on education !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 104 caroline minter hoxby, how teachers’ unions affect education production, 111 q. j. econ. 671, 684 (1996). caroline hoxby is the scott and donya bommer professor of economics at stanford university. caroline hoxby, stanford inst. for econ. policy research, http://siepr.stanford.edu/peopleprofile/2409#bio (last visited jan. 16, 2012). she is a senior fellow at the hoover institution and the stanford institute for economic policy research, serving also as the director of the economics of education program at the national bureau of economic research. hoxby specializes in public and labor economics and is recognized as one the world’s foremost scholars on the economics of education. she is known widely for her work on school finance, the market for college education, school choice, university finance, peer effect, and financial aid. professor hoxby is currently working on projects focused on ideal financing for schools, the effects of education on economic growth, and globalization in higher education. id. 105 see hoxby, supra note 104. unlike the case with the previous discussion of the cost of instruction, here the phrase “cost of instruction” refers to the total district expenditures on education. see joe stone, collective bargaining and public schools, in conflicting missions?: teachers unions and educational reform 47, 55–56 (tom loveless ed., 2000). for the purposes of her study, hoxby defines a unionized district as one that participates in collective bargaining and in which at least half of all teachers, or half of full-time teachers, in the district are union members. hoxby, supra note 104, at 685. as the basis of her analysis, hoxby uses data from the census of governments from the years 1972, 1982, and 1992, coupling this with other data in conducting her examination. id. at 673. she also employed data from the censuses of population and housing for the years 1970, 1980, and 1990 and the census of governments data from those years for other parts of her analysis. id. at 685. she chose to use student dropout rates as her metric for student performance as it is the only measure of student achievement that can be drawn from the census of governments, around which she focused her study. id. at 686. she bases her study on district-level data. stone, supra note 105, at 61. 218 contracting away success vol. 2:1 than non-union districts with similar characteristics.106 similarly, hoxby reaches the conclusion that in union districts teachers receive a pay premium of 5.1% over their colleagues working in districts in which unions are not present, representing a small but non-negligible difference in teacher pay.107 as her proxy for workplace conditions, hoxby tracked student-teacher ratios in union and non-union districts, finding that this statistic also came out in favor of teachers in union districts. in making this comparison, the author used two different mathematical techniques to obtain her results, one yielding a finding of a 6% lower student-teacher ratio in union districts and the other suggesting a 9% difference also favoring unionized districts.108 yet despite these clear advantages for unionized districts and the teachers who work in them, hoxby finds that this does not translate into greater student success. in fact, she discovers quite the contrary, determining that the high school dropout rate in unionized districts is 2.3% higher than that of non-union districts.109 while viewed alone this datum supports the conclusion that unionization hinders student performance, considering this finding in light of the aforementioned results of her study weighs heavily in favor of such an assertion. for the purposes of discussion, due to the small percentage difference in dropout rates between union and non-union districts, this note assumes that the dropout rates for the two types of districts hoxby analyzes are statistically indistinguishable. that would mean that though union districts have 12.3% greater total economic resources, 5.1% better teacher pay, and 6%–9% lower student-teacher ratio, students attending schools in union districts have an identical level of success as those who attend schools with significantly fewer resources. the practical implication of this is clear: schools in non-union districts are significantly more productive in using their resources than union schools and are simply better at getting results out of their students. stated from the opposite !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 106 stone, supra note 105, at 56. 107 id. at 50. in calculating the union premium for teacher pay, hoxby controlled for district, time, and districtspecific time fixed effects (instrument variable estimate). id. at 50. hoxby also made a second attempt to determine the union district pay premium using instrumental variable estimates to control for as many attributes of teachers and districts as possible. id. at 50. this technique is often employed in studies like this one to account for the fact that “union status is not actually randomly assigned . . . or for other factors, including potential measurement error.” id. at 49. it yielded a union premium of 5.0%. this was based on states that had collective bargaining laws. id. at 50. other studies yield similar results with respect to teacher pay and educational expenditures. in a 1982 study by william h. baugh and joe a. stone, using what is called a fixed-effects estimator which estimates wage change associated with change in union status for individual teachers, they found a union premium of 12%. id. at 49. a 1988 study by morris m. kleiner and daniel l. petree, based on data from 1972 to 1982, found only a 1% premium, using “an estimator for fixed state effects,” and a 7% premium without this estimator. id. at 50. the baugh-stone study had the most detailed controls of the three studies, followed by the hoxby study and finally the kleiner-petree study, indicating that the baugh-stone study is likely the most accurate. id. at 49–50. in terms of total education expenditures, these other studies also supported the finding of a non-negligible difference between union and non-union districts. the kleiner-petree study showed a 12% higher expenditure, and a study conducted by randall w. eberts and joe a. stone found a 15% higher expenditure by union districts. id. at 56, 58. 108 id. at 54. the 6% lower student-teacher ratio that hoxby finds in union districts using her first mathematical analysis along with differences-in-differences specifications, represents a 1.1 student difference in class size. her second analysis, in which she employs the iv estimate technique and finds a 9% smaller student teacher ratio in union districts, represents a 1.7 student difference in class size. id. the kleiner-petree study referenced earlier produced a similar difference in student-teacher ratio between union and non-union districts, finding a 7% lower ratio in union schools. the researchers based their study on state-level data. id. at 51, 54. 109 for this part of her study, hoxby uses “a specification that includes district, time and district-specific to examine high school drop-out rates.” id. at 61. she also uses instrumental variables “to account for potential correlations between contract status and the error term.” id. at 61. data here is statistically significant at 5%. id. at 59. 2012 columbia journal of race and law 219 perspective, union schools are less efficient in resource consumption, struggling to effectively translate positive inputs into positive student outputs.110 plainly, these schools perform worse than their peers.111 thus to the extent that union schools use more resources to produce the same results as non-union schools, they are negatively affecting student performance in that they could and should be getting more out of their students for the amount of resources being consumed.112 other studies, however, have produced data that seem at first blush to support quite the opposite assertion, indicating that student performance is in fact better in districts where unions and collective bargaining are present.113 for instance, martin milkman’s 1987 paper, “teachers unions and high school productivity,” evaluates student performance in union and non-union school districts. through an analysis of student standardized test results, milkman finds that adolescents in union districts score 2% better on these examinations than their peers studying in non-union districts.114 randall eberts and joe stone come to findings consistent with milkman’s in their similar 1987 study focusing on fourth grade students.115 in that report, entitled “teachers’ unions and the productivity of public schools,” which uses student improvement in math test scores as its basis, eberts and stone conclude that fourth grade students in union districts make a 1% gain over fourth graders in non-union districts.116 the findings of researchers laura argys and daniel rees in their 1995 study also support the idea of better student performance in union schools, focusing their examination, as did eberts and stone, on student scores on standardized math tests.117 using students’ scores on a standardized math examination in the eighth grade as their control variable, argys and rees analyze how these students performed on a similar math test as tenth graders.118 their study finds that students in union districts students score 1.3% higher than children in districts not characterized by union presence.119 thus, while !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 110 see hoxby, supra note 104, at 711 (hoxby concludes that teachers’ unions raise “school budgets and schools inputs but lowering student achievement by decreasing the productivity of inputs.”). a further examination of hoxby’s study and ebert and stone’s 1987 work make even clearer the lower efficiency of inputs in union school districts than those in non-union districts. hoxby finds that a decrease of one student in the student-teacher ratios at non-union schools leads to a 0.4 percent decrease in dropout rate, while the same change to the student-teacher ratio in a union schools has no effect on the rate at which students drop out. stone, supra note 105, at 65. similarly, she finds that a 10% increase in teacher salary at non-union schools leads to 0.7% decrease in the dropout rate, while such an increase has no effect on the dropout rate in union schools. eberts and stone’s findings are consistent with hoxby’s. they find that decreases in the student-teacher ratio in a non-union school “are about 3.4 times more effective in improving student achievement as in union schools.” finally, these researchers find that adjustments to instructional time are 2.1 times more effective in non-union schools than in their union counterparts. id. 111 stone, supra note 105, at 65. 112 id. 113 data referenced in this paragraph is statistically significant at 5%. id. at 59. 114 id. at 57, 60. in conducting this study, milkman compared students’ performance on math exams as seniors in high school to their own achievement on similar standardized tests as sophomores as a control variable. id. at 57. a subsequent study conducted by milkman using the same methodology indicated that minority students in districts with union presence and collective bargaining score 1.4% higher than those in non-union districts. id. at 59. 115 id. at 59–60. 116 stone, supra note 105, at 59–60. 117 id. at 60. 118 id. 119 id. 220 contracting away success vol. 2:1 these differences in student performance are small, they are consistent and may undermine the idea that collective bargaining and unionization in schools weighs negatively on student performance. however, on closer examination, they are not as inconsistent with hoxby’s findings as they may initially appear. in stone’s essay “collective bargaining and public schools,” in which he examines each of these studies, the author points out that the studies by milkman, eberts and stone, and argys and rees each produce an inverted “u” distribution when the scores of students in union districts are plotted against those of students in non-union districts.120 what this essentially indicates is that, while there are a group of students at the peak of the distribution that score slightly better than students in non-union districts, this is not the case for students at each end of the distribution, whose scores drop below those of students in non-union schools.121 thus, while the average student in union districts performs slightly better than those not in union districts, the best and worst students in union districts do not. this understanding then reconciles hoxby’s studies with the others as her study, focusing on dropout rates, targets those students at the bottom tail of the distribution.122 examined collectively, these studies point out that while the average student performs slightly better in union districts, the best and worst students perform worse in these districts. therefore, while average students in union districts perform marginally better than those students in non-union districts, a significant percentage of underachievers are left behind. in order to adequately address the nation’s educational deficiencies it is this group that most needs to be helped and is precisely the group that union districts are underserving.123 in analyzing why this distribution exists, stone explains that schools in union districts have a tendency to employ “traditional classroom instruction” geared toward the average student, generally not focusing on the special learning needs of struggling students and those who are particularly gifted.124 students with specific needs are forced to compete for attention with the larger group of students at the average ability level.125 discussing the effect of class size on students of the highest and lowest ability levels in union schools through an examination of the argys and rees study, stone states the following: indeed, argys and rees find that lowand high-ability students are taught in larger classes in union schools than in nonunion schools, even if one holds the overall studentteacher ratio in the school constant. pursuing this difference, they examine the unionnonunion difference in student performance across various ability levels after holding constant the size of the student’s class, academic track, and overall class achievement !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 120 id. at 62. 121 stone, supra note 105, at 62. 122 id. 123 while as the studies presented here suggests, both highand low-performing students are underserved in union districts, the possible solutions to educational problems discussed herein and presented in part iv of the note are geared toward aiding improvement in student achievement across the board and specifically for particularly lowperforming students. though it is certainly important to provide strong educational resources geared specifically toward the nation’s top students, to stop the nation’s further slide into educational mediocrity, i believe the highest priority should helping those students at the lowest end of the scale. thus, while this note presents possible solutions that would have positive implications for all students, its focus is a bit more on institutional fixes that will specifically help low performers. 124 stone, supra note 105, at 62. 125 id. at 64. 2012 columbia journal of race and law 221 level. with these class characteristics held constant, argys and rees find that the low and high-ability students no longer perform worse in union schools. . . .126 thus, stone asserts that as a result of the denial of classes geared toward highand low-ability students commensurate in size to those for their average ability-level classmates, union schools compromise the quality of education provided to these students.127 the negative effect on student performance, then, is painfully clear. the studies examined in this subsection make plain that the connection between teachers’ unions and collective bargaining and the problems our country’s students suffer do in fact exist. these reports indicate that where there are unions and collective bargaining, there are complex issues of inefficient use of resources and chronic student underachievement. in addition, while union districts have been able to educate children of average ability with the same level of success as non-union districts, the mass of children left behind greatly overshadows this relative success. yet what about these institutions hinder the success of so many of our children? where within them is the true source of the problem? in the subsequent discussion, i endeavor to draw out the answer to these questions. c. zeroing in on the problem while an analysis of the education statistics and studies discussed in the previous subsection clearly indicate that american students are struggling, and point to the fact that unionization and collective bargaining play a significant role in these failures, the more complex question of exactly which provisions facilitate or even encourage student underachievement still remains. teacher collective bargaining contracts are extensive, addressing topics from vacation policy to the way in which extracurricular assignments are made, and thus one must sift through these documents carefully to identify the truly problematic provisions.128 after a close examination, there are a number of provisions set out in these agreements that show up as particularly detrimental to strong student performance. among the worst of these are seniority provisions, which stipulate, among other things, that layoffs be based solely on the seniority of an instructor, prohibiting any sort of merit assessment in making these decisions.129 additionally, provisions that prohibit the payment of teachers based on merit also serve to impede student growth.130 finally, and perhaps the sections of these agreements that cause the most damage to american students, are teacher evaluation provisions and traditional school district policies !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 126 id. at 64. 127 id. 128 see lieberman, supra note 5, at 222–23 (setting out some of the provisions typically covered in collective bargaining agreements). 129 see id. at 223 (highlighting transfer provisions based on seniority as a staple of collective bargaining agreements); howard blume & jason song, l.a. unified’s change agent; a one-issue lawsuit turned into a broad settlement with far-reaching implications, l.a. times, oct. 14, 2010, at a1 (stating that a layoff policy based on seniority existed in the los angeles united school district (lausd) and that this policy is used by nearly all school districts). in some states, layoff provisions based on seniority are both a part of collective bargaining agreements and have been written into state law; jason felch, jason song & doug smith, grading the teachers; seniority over quality; when budget cuts hit, many of l.a.’s most promising new teachers were laid off. poorer students were particularly hurt, l.a. times, dec. 5, 2010, at a1 (discussing how layoff policy based on seniority remains a part of state law in california). 130 see lieberman, supra note 5, at 223 (stating that prohibition on merit pay is a typical bargaining topic). 222 contracting away success vol. 2:1 that supplement them.131 these provisions significantly undermine the accountability of the nation’s teachers. the following discussion will address each of these provisions. one of the classic staples of teacher collective bargaining agreements is seniority provisions.132 while these contracts stipulate seniority as the basis for a wide range of teacher benefits and privileges, seniority privileges are most problematic in their effect on layoff policies. traditionally, layoff policies have stipulated that teachers who were most recently hired are to be fired first in the event of layoffs, regardless of an individual teacher’s level of performance.133 the effect of provisions like these has been devastating on student performance, especially in high-poverty schools.134 the circumstances surrounding recent layoffs in lausd due to district budget cuts brings this into full view. though district administrators have urged union leaders for years to reconsider rigid layoff policies that mandate the release of teachers with the least amount of experience first, unions have been uncompromising, and this policy persists in lausd.135 these provisions, however, principally have had two negative effects on students in los angeles. first, they have led to the removal of some of the brightest and most talented young teachers from classrooms where students desperately need them.136 while teachers with the greatest amount of experience are often the most effective, this is not always the case. los angeles is a perfect example of this. in lausd, approximately 190 of the teachers ranked in the top fifth of teachers in the district based on raising student scores were released due to recent layoffs solely on the basis of the number of years they had worked for the school system.137 this number is greater than four hundred when considering the top 40% of lausd instructors.138 second, because schools in the worst areas often have a greater proportion of younger teachers with fewer years of experience, layoff provisions focused on seniority lead to a significantly higher number of layoffs at high-poverty, underachieving schools. this is exactly what poorer schools do not need.139 in south los angeles, one the poorest areas in the city, one in ten teachers were laid off in response to recent budget problems. that is almost double the rate of teachers being laid off in other areas of the city.140 even worse is that out of sixteen schools which lost one quarter of their teachers or more during this cycle of layoffs, only one was not located in the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 131 see id. at 223 (stating that evaluation provisions are historically a part of teacher collective bargaining agreements). 132 see id. 133 see felch, song & smith, supra note 129, at a1. 134 see id. (discussing the negative effect lausd’s layoff policy had on one district middle school). 135 see generally high stakes for the schools; amid hard times, l.a. teachers and the district should reject making any power plays in contract talks, l.a. times, dec. 18, 2003, at b16; felch, song smith, supra note 129, at a4. 136 see generally felch, song & smith, supra note 129, at a1; see also marcus winters, mass teacher layoffs + seniority rules = bad news for kids, op-ed., n.y. daily news, feb. 3, 2009, http://www.nydailynews.com/opinions/2009/02/04/2009-02-04_mass_teacher_layoffs__seniority_rules__b.html (discussing how seniority rules lead to talented young teachers being laid off in new york city). 137 felch, song & smith, supra note 129, at a1. 138 id. 139 id. 140 id. 2012 columbia journal of race and law 223 struggling south and central sections of the city.141 as a result, students in low-income, high-poverty areas have been disproportionately affected by this wave of layoffs, a direct symptom of teacher-focused seniority rules.142 in addition to seniority policies set out in bargaining agreements, provisions prohibiting merit pay are also particularly problematic. generally, collective bargaining agreements have included provisions that stipulate that teachers can only be paid on the basis of their educational accomplishments and their experience as educators such as the degrees they have earned and the number of years they have taught.143 these provisions essentially eliminate the opportunity for a district to increase an instructor’s compensation based on a demonstration of a high level of effectiveness as a teacher. as a result, in many ways school districts’ hands are tied in implementing incentive-based reform programs to improve teacher quality. this is because a teacher’s performance cannot be taken into account when setting their level of compensation. in a country where the vast majority of teachers who have taught for more than two to three years have tenure, which essentially insulates them from termination, seasoned teachers may have little incentive to improve their level of effectiveness by changing their teaching techniques or tailoring lessons to the specific needs of their students.144 thus, by prohibiting merit pay, collective bargaining agreements take from school administrators one of the major ways in which they can affect a change in a teacher who is currently ineffective at helping his or her students progress academically. additionally, contract prohibitions on merit pay make it extremely difficult to attract and retain the most talented individuals to the teaching profession.145 economist eric hanushek of stanford’s hoover institute suggests that attracting top talent to the field may be the primary benefit of allowing merit pay: “the biggest role of incentives has to do with selection of who enters and who stays in teaching—i.e., how incentives change the teaching corps through entrance and exit. . . . i have always thought that the effort effects were small relative to the potential for getting different teachers.”146 as myron lieberman notes in his book the teacher unions, talented young people entering the workforce have a variety of options in choosing a career path.147 in order to draw these talented individuals to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 141 id. 142 id. at a1. while this will be described supra part iv.a, lausd’s liechty middle school was a victim of seniority-based layoffs. opening in 2007 in a poor area of los angeles with a number of young, but highly motivated teachers at its helm, liechty quickly became one of the top performing middle schools in the district. however, after it lost a large percentage of its teaching force due to layoffs, it plummeted in district rankings as student performance dropped substantially. id. 143 myron lieberman, the teacher unions: how the nea and aft sabotage reform and hold students, parents, teachers, and taxpayers hostage to bureaucracy 223 (1997) (indicating that standard teacher contracts prohibit merit pay, allowing teachers only to be paid based on their educational background and years of experience as teachers). 144 song, supra note 129, at a4 (indicating that teachers are eligible for tenure after two years in lausd); jennifer medina, mayor to link teacher tenure to test scores, n.y. times, nov. 26, 2009, at a1 (stating that teachers in the new york city public school system generally receive tenure after three years of teaching); russell b. mallett jr., oped., new jersey opinion; behind our schools’ problems, n.y. times, oct. 31, 1982, at 38 (asserting that teachers are granted tenure when rehired for a fourth year with the district). 145 see nick anderson, study undercuts teacher bonuses, wash. post, sept. 22, 2010, at a18. 146 id. 147 see lieberman, supra note 5, at 215–16. 224 contracting away success vol. 2:1 teaching, lieberman makes the general point that the education system must make itself attractive to the brightest individuals of the next generation.148 thus in prohibiting payment based on merit, these provisions and the unions that support them suffocate a potential incentive that could bring real strength and enthusiasm to the classroom.149 therefore, to the extent that these provisions block potential positive additions to the nation’s teacher corps, they are in part responsible for student performance that currently sits at a level lower than it might be if such strategies were implemented. on the other hand, perhaps the section of collective bargaining agreements that most undermines the academic success of american children are provisions detailing the manner in which teachers are to be evaluated. unions influence school districts across the country by creating evaluation provisions, which only serve the best interests of teachers. unlike the vast majority of professions, in which individuals are evaluated on how effective they are at performing their professional duties, district administrators historically have not been able to evaluate teachers on their ability to help their students advance academically.150 though there is no clear set of bases for these evaluations, a case study by susan johnson published in her book the teacher unions in schools suggests that teachers can be evaluated on such subjective measures as “teaching techniques” and “self-control and poise,” for which teachers are given “grades” ranging from “excellent” to “unsatisfactory.”151 this means of assessment, however, in no way considers student academic progress. making these evaluations and even less rigorous is the fact that they generally consist of nothing more than a classroom visit by a school administrator. the administrator often is required to give the teacher to be evaluated twenty-four-hour notice of their visit. this allows the teacher to change their normal routine and create a lesson that meets the supervisor’s expectations and will help them pass the evaluation.152 put quite simply, in many instances, these procedures become nothing more than a formality. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 148 see id. it is important to note that in the section of lieberman’s book referenced here, he is discussing the fact that higher wages encourage teachers to teacher longer, limiting the number of job opportunities for young, talented individuals to enter the teaching field. due to how narrow an application a teaching certification has, students are discouraged to go this route because pursuing another degree or certification would give them much greater assurance of getting a job. lieberman adds that elevated certification standards imposed on teachers by unions only exacerbates this problem. as a result, he says, the teaching profession is not attractive to bright, young individuals. id. 149 see jeremy meyer, payouts a bonus for dps teachers more than $27 million is being paid this year as incentives to take on challenging duties, denver post, nov. 28, 2010, at b-01 (describing how denver’s merit pay system has created an incentive for top teachers to come to denver public schools and take tough positions in the system). 150 see susan moore johnson, teacher unions in schools 119–20 (1984) (describing evaluation procedures used by the schools in the author’s case study, both of which were based entirely on observation of teachers by administrators without any empirical evaluation of performance or effectiveness); jason felch, study supports teacher ratings; preliminary findings show ‘value-added’ analysis is a reliable guide to effectiveness, l.a. times, dec. 11, 2010, at aa1 (“[t]eacher evaluations, which for decades have been based on occasional, cursory observations by principals who give passing grades to the vast majority of teachers.”). the bargaining agreements themselves do not always stipulate the details of the evaluation procedures, often simply stating that teachers are to be evaluated and the frequency with which this is to occur. see lieberman, supra note 5, at 223 (providing an example of an evaluation provision). the actual evaluation procedures themselves may be an element of district policy. see teresa watanabe, d.c. schools may hold lesson for l.a.; washington is using controversial ‘value-added’ method to evaluate teachers, l.a. times, nov. 14, 2010, at a1 (discussing dc chancellor of public schools michelle rhee’s institution of a new teacher evaluation procedure, which took place outside of the bargaining context). 151 johnson, supra note 150, at 119. 152 id. at 118. 2012 columbia journal of race and law 225 hollow evaluation policies like the ones described above are extremely problematic for two principal reasons. first and foremost, the evaluation procedures these provisions describe create no accountability on the part of educators to their students or to the school district for whom they work. they do not demand that teachers be successful at helping students progress academically. evaluating poise, for instance, as mentioned above, may provide a district with some understanding of a teacher’s classroom demeanor or perhaps even how they resolve student disputes or behavior issues, but it provides little information about that teacher’s ability to help students learn the requisite material to advance in grade level. education is one of the few professional fields in which it is the industry standard that individuals are not judged on how effectively they perform their duties. prosecutors are often judged by conviction rates, surgeons by the success of their operations and the quality of their work, and business owners by the amount of revenue and profits they are able to produce. it is only in the field of education that process is valued more than production. such process-driven evaluation policies create no incentive for teachers to improve their effectiveness in the classroom. when a teacher knows that an evaluation will consist of nothing more than a twenty-minute classroom observation, in which time little about his or her abilities as a teacher can accurately be judged, the most that the teacher may be motivated to do is to make adjustments just for the period of evaluation. the teacher may disregard necessary long-term changes, knowing that at no point will he or she have to answer to anyone regarding their ineffectiveness.153 in the end, students carry the burden of teachers not being held accountable, and are failed by educators who are not personally motivated enough to improve. in addition to creating a burden for students, traditional evaluation provisions make it extremely difficult to remove incompetent teachers from the classroom. as teachers are not evaluated on their effectiveness as instructors, teachers whose students continue to underperform due to poor instruction go undetected.154 examples of such systemic failures exist throughout the country due to recent changes in their teacher evaluation policies. washington, d.c., is a particularly poignant illustration of this sort of inaccuracy in evaluation. though not a large school system, washington’s public schools have been struggling for quite some time, and in 2009 they reached a dropout rate of 40%.155 in the midst of all the system’s turmoil, the former chancellor of the district’s public schools, michelle rhee, was able to set in place an evaluation policy based in large part on the performance of a teacher’s students on standardized tests.156 the results of this change were shocking. the district found that seventy-five of its teachers !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 153 id. at 119 (stating that one of the contracts from the districts in the author’s case study stipulated that teacher evaluations are to last 20 minutes). describing her experience with traditional evaluation procedures, one teacher asserts that evaluations done in accordance with these sorts of policies are “a superficial look at what at goes on in the classroom.” teacher evaluations, a history teacher and more (mar. 8, 2005), http://www.ahistoryteacher.com/wordpress/?p=51; the teacher writing in this blog suggests that due to the way in which evaluations are based on a teacher’s prior knowledge of the time of their evaluation, teachers will pick a particularly interesting topic for class that day to create a level of discussion among students that is not generally characteristic of their class. to illustrate the extent of this, this teacher tells the story of one teacher she knew who used the same lesson for each evaluation over a twenty-year period. id. such an account properly illustrates the flaws in traditional evaluation procedures and how these procedures fail at determining a teacher’s actual level of instructional competence. 154 felch, supra 150, at aa1 (suggesting that insufficient evaluation procedures lead to incompetent teachers receiving satisfactory scores). 155 neil king jr. & john hechinger, u.s. news: d.c. schools chief targets tenure, wall st. j., nov. 19, 2009, at a8. 156 bill turque, rhee dismisses 241 teachers in the district; union vows challenge firings are result of new evaluations, wash. post, july 24, 2010, at a01 (explaining rhee’s plan to use student test scores in teacher evaluations). 226 contracting away success vol. 2:1 were so ineffective that they were fired and another 700 received low ratings due to inadequate improvement in their students’ academic performance.157 this dramatically redefined the educational landscape in the district when nothing less than reconstructive surgery would do. though the change could not have been more timely, what these events uncovered was profoundly unsettling. due to superficial and misguided evaluation policies, hundreds of underperforming teachers in the d.c. public school system had taught for years without repercussions, negatively affecting hundreds of thousands of students during their tenures. as similar evaluation policies begin to emerge, it is undoubted that more stories like the one in d.c. will arise as districts recognize the large number of teachers it employs who are not up to the task of effectively educating its students. thus, while it may not be the intention of unions to protect poor teachers through pushing lenient evaluation methods, the likelihood that such metrics of evaluation will lead to this result is quite high. an examination of the washington, d.c., public school system displays this outcome. lax evaluation policies allow districts to cut corners in staffing in a manner detrimental to students as well. nationally, 15% of high school teachers were teaching outside of their area of expertise during the 2007–2008 academic year.158 in california, one of the country’s most populous states, this percentage was even higher.159 there, 17.5% of teachers were instructing students in a subject area outside of their subject of expertise.160 while it would be unfair to assume that all teachers teaching outside of their particular area of expertise are ineffective in teaching this material, the likelihood that an individual may struggle to communicate important details or nuances of a subject area to students when they are not well-versed in it certainly increases. to the extent that this is the case, these teachers cannot provide students with a full understanding of the material. yet traditional evaluation provisions facilitate such overextension of human capital by schools that teachers who would likely be shown ineffective under a production-driven evaluation policy are able to continue teaching outside of their field without consequence. as part iii demonstrates, the problem of student underachievement in the united states is a very real one and unions, and more specifically collective bargaining agreements, directly contribute to this educational dilemma. through contract provisions designed to serve the best interest of educators, that which is truly best for the nation’s students has slowly, yet dramatically, slipped out of view. as a result, the nation no longer stands as the international lighthouse of educational excellence, which it once did. it now simply struggles to produce a generation of workers equipped to handle the increasingly complex challenges that the country faces. however, despite the situation in which the country finds itself, there are ways in which the nation can begin to reverse the failures of its education system, starting first by redesigning the contract provisions that have so undermined its success. promising reform efforts have begun to take root in individual school districts throughout the country, creating new policies that return the focus of the system to its students. these efforts have only increased in light of president obama’s new race to the top program designed to reward states that create innovative plans for reform focused on creating accountability in schools.161 drawing on many of these strategies, the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 157 king & hechinger, supra note 155, at a8. 158 the ‘highly qualified’ gap, editorial, l.a. times, nov. 26, 2010, at a32. 159 id. 160 id. 161 as part of the american recovery and reinvestment act, which president obama signed into law on february 17, 2009, to improve the economy and provide aid to important public sector entities harmed by the economic crisis of 2008, the federal government set aside $4.35 billion in a fund for a program it called race to the top, 2012 columbia journal of race and law 227 following section of this note will make a number of recommendations of possible changes to collective bargaining agreements that could be implemented in school districts across the country to help correct many of the problems herein discussed. iv. important steps to regain academic excellence in modifying teacher contract provisions in a manner best suited to correct many of the problems that current contracts both facilitate and encourage, two twin policy aims must guide one’s approach. first, the focus in writing contracts must shift from a principle concern of teachers’ interest to the interests of the students162 whom the education system is expected to serve. second, any modification must rest on solid foundation of accountability, placing a premium on making educators confront their shortcomings as instructors and take the appropriate steps to alleviate them in order to avoid loss of employment. these two policy concerns are exactly what is absent from current contracts, as they are more concerned with shielding teachers from job loss and ensuring that they have access to benefits than demanding teachers instruct their students at the highest level. thus, as a result, the only people who benefit from these measures are teachers, while students are left to deal with the externalities of these provisions, terms callous to their needs. yet by approaching contracting from a place that envisions the ideal contract as one that demands accountability of teachers and focuses on student interests, one can begin to repair some of the grave damage that has been done to america’s young people. the following recommendations are structured around one or both of these twin aims, and if implemented nationwide, would go a long way toward improving student performance. a. seniority-focused layoff provisions despite the benefit seniority provisions bestow on older teachers and the interest of equity they seem to serve, layoff provisions couched in seniority need to be eliminated from teacher contracts and replaced with provisions that stipulate merit as the sole basis for layoff decisions. as discussed in the section above, layoff provisions based around seniority can and often do lead to the layoff of young but !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! established to provide supplemental educational funding for state education systems. u.s. dep’t of educ., race to the top executive summary 2 (2009), available at http://www2.ed.gov/programs/racetothetop/executivesummary.pdf. however, this program operated as a competition in which the states that created and implemented the best reform plans received a portion of the federal funds to use for its state education budget. the government highlighted four areas of reform in which it was particularly interested in seeing development: “adopting standards and assessments that prepare students to succeed in college and the workplace and to compete in the global economy; building data systems that measure student growth and success, and inform teachers and principals about how they can improve instruction recruiting, developing, rewarding, and retaining effective teachers and principals, especially where they are needed most; and turning around our lowest-achieving schools.” id. in addition to these four larger goals, the government set out a number of more specific criteria on which it would use to assess state applications. id. at 3. the government conducted two rounds of this competition. id. at 2. the first round (phase i) of applications was due to the department of education on january 19, 2010, and the winning states were announced in april 2010. second round (phase ii) applications were due june 1, 2010, and the winners of that round were announced in september of 2010. id. the winners of phase i race to the top grants were delaware and tennessee. race to the top fund, u.s. dep’t of educ., http://www2.ed.gov/programs/racetothetop/awards.html (last visited jan. 18, 2012). phase ii grants went to massachusetts, new york, hawaii, florida, rhode island, the district of columbia, maryland, georgia, north carolina, and ohio. id. 162 when making reference to the “interest of students,” i am speaking about students’ general interest in an education system that prepares them to perform appropriate grade level standard and, by the end of secondary school, has provided them with the requisite educational background to effectively handle collegiate level work if they choose to pursue it. 228 contracting away success vol. 2:1 excellent teachers. furthermore, these provisions can have disproportionate effects on the faculty of high-poverty schools in times of mass layoffs as their faculty generally have a large percentage of young, inexperienced teachers.163 at one recently opened middle school located in one of the worst sections of los angeles, the effect of the layoff policy has been particularly bad, illustrating the extent of the damage caused by these provisions. in 2007, lausd opened liechty middle school in the westlake section of the city, an area known for its high poverty rate.164 hoping that the school could find success despite its discouraging surroundings, school administrators staffed the new junior high with bright young teachers excited to take on the challenge of helping the countless struggling students who would no doubt be assigned there.165 after just one year, the school led all of the district’s middle schools in the improvement of its students’ english standardized test scores and had made substantial growth on math standardized test results as well.166 yet in the summer of 2009, when the state started to dramatically cut its budget, the school district began mass layoffs across the city, leading to the release of seventeen of liechty’s young, high-performing teachers due to their short tenure as educators.167 the middle school had crumbled by the end of the 2009–2010 school year. student english scores crashed to sixty-first in the district and low student performances in math cause the school to drop from its top ten rank in math achievement.168 while the challenges faced at liechty were particularly devastating, layoff policies based in seniority have and continue to lead to the loss of strong young teachers in districts across the country.169 in view of a story like this, the benefits of the restructuring layoff provisions to base decisions on merit alone become clear. first, districts would not be forced to undermine their own mission by laying off effective young !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 163 see felch, song & smith, supra note 129, at a1 (describing the layoffs of a large number of young teachers which took place at one los angeles middle school). see also james warren, op-ed., a view from both ends of the educational spectrum, n.y. times, june 18, 2010, at 23a (stating that due to seniority rules, the two young teachers on whom the article focuses may be subject to layoffs despite their strength as teachers); see also jennifer medina, new, small schools brace for extra pain from city’s teacher layoffs, n.y. times, june 2, 2010, at a19 (explaining that small schools which were established to replace poor performing schools in the same areas may be affected disproportionately by layoffs due to the fact these schools are staffed by a large percentage of younger teachers and layoffs are based upon seniority). 164 see felch, song & smith, supra note 129, at a1 (discussing how layoff policy based on seniority remain a part of state law in california). 165 id. (“john m. liechty middle school opened in 2007 in los angeles’ impoverished westlake neighborhood with a seasoned principal, dozens of energetic young teachers and a mission to ‘reinvent education’ in the nation’s second-largest school district.”). 166 id. 167 id. 168 id.; the los angeles times journalists writing the piece about liechty middle school noted interestingly that not only would performance-based layoffs have benefitted underserved l.a. students better, but also that it would have been cheaper to the district and would have resulted in less total layoffs. id. explaining this idea, the authors write the following: “far fewer teachers would be laid off if the district were to base the cuts on performance rather than seniority. the least experienced teachers also are the lowest-paid, so more must be laid off to meet budgetary targets. an estimated 25% more teachers would have kept their jobs if l.a. unified had based its cuts on teachers’ records in improving test scores.” id. 169 see medina, supra note 163, at a19 (discussing the potential in new york for a large number of young teachers to lose their jobs due to seniority provisions). 2012 columbia journal of race and law 229 educators.170 instead, administrators could eliminate a district’s actual least effective teachers in layoff scenarios, strengthening its teacher corps rather than weakening it. second, allowing for performancebased layoffs would ensure that a layoff crisis would not lead to the further disadvantaging of already underserved students at a district’s worst schools by taking from those schools a substantially greater percentage of human capital than would be lost in better schools.171 as the article discussing liechty middle school makes clear, the wave of layoffs in which many of the liechty teachers lost their jobs disproportionately affected schools in poor areas as more inexperienced teachers taught in those areas and were laid off as result of their inexperience.172 districts could spread layoffs across a district weakening the blow to any one or group of schools. finally, this change in policy may draw more young talent to the field of education, alleviating young potential educators’ worries about losing their jobs for reasons outside of their control.173 taken together, these benefits would ensure that a school district was not wasting valuable human resources and that students were receiving instruction from the best teachers that the district could offer. the removal of layoff provisions based on seniority would squarely address one of the educational problems drawn out in the analysis of studies set out in part iii: the students at the fringes being left behind. for the purposes of review, from examination and synthesis of a number of studies focused on the effects of unionization and collective bargaining on school districts, i conclude that the students most negatively affected by these institutions were the best and worst performing students in a district. the change to collective bargaining agreements suggested here would, in part, positively impact !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 170 for the purposes of this paper, i have defined an effective teacher as someone who is able to consistently help students grow academically regardless of the students’ starting point. 171 in addition to simply being a general positive for student education, eliminating seniority-based layoff provisions may also contribute to slowing down the widening the achievement gap between wealthy and poor children. it is widely known that children of wealthy families attend the best schools in the district. see generally antonia cortese & claus von zastrow, closing the staffing gap and ensuring teaching for the students who need it most, education week, jan. 18, 2006, at 34, available at http://www.edweek.org/ew/articles/2006/01/18/19cortese.h25.html (last viewed jan. 18, 2012). these also happen to be the schools to which the district’s most experienced teachers are drawn as well. thus, as the education week article cited in part iii of this note makes clear, poor students attending one of the worst schools in a district are already at a decided disadvantage. id. in an attempt to counter this problem, school districts in places like los angeles and chicago have started to recruit extremely bright and motivated young teachers to serve in these troubled schools. see felch, song & smith, supra note 129, at a1; see also medina, supra note 163, at a19. many of these young teachers end up being excellent teachers and contributing substantially to improvement in student achievement and, as a consequence, shrinking the overall achievement gap between the wealthy and poor children. see felch, song & smith, supra note 129, at a1. yet by eliminating these teachers first and in greater numbers, as was the case with the teachers at liechty middle school, districts retard this improvement process, thwarting the efforts of teachers at highpoverty schools to close the gap between their students and students at better schools. id. as black and hispanic students often make up a large percentage of students at high-poverty schools, seniority-based layoffs provision directly undermine efforts to close the achievement gap between and white students and their black and hispanic classmates as well. robert balfanz, can the american high school become an avenue of advancement for all? 19 am. high sch. 17, 20 (2009), available at http://futureofchildren.org/futureofchildren/publications/docs/19_01_02.pdf. by ending this practice, bright young teachers can continue to help underserved students make progress and in so doing, narrow the difference in educational achievement between them and wealthier students. 172 see felch, song & smith, supra note 129, at a1. 173 see jennifer medina, last teacher in, first out? city has another idea, n.y. times (apr. 24, 2011), http://www.nytimes.com/2010/04/25/education/25seniority.html (explaining how layoffs based on seniority could discourage young people from entering the teaching field); see also teresa watanabe, d.c. schools may hold lesson for l.a.; washington is using the controversial ‘value-added’ method to evaluate teachers, l.a. times, nov. 14, 2010, at a1 (stating that both new york and houston employ objective measures of strong teaching like in washington, d.c.). 230 contracting away success vol. 2:1 this problem. as the liechty middle school anecdote illustrates, layoff provisions based on seniority often have the most profound impact on the worst students in a district as they are often taught by the greenest educators of the teaching corps. yet as this example shows, greenness does not necessarily correlate to commitment and talent, often times some of the strongest teachers being the newest to the profession. thus, retooling collective bargaining agreements to ensure that this youthful talent is kept in the district over more seasoned but less effective teachers would specifically help to remedy underachievement of the lowest performing students. b. merit pay confronting head-on the traditional proscription of merit pay would also have a significant impact on student performance. traditionally, as discussed in part iii, collective bargaining agreements have banned merit pay, basing teacher compensation solely on a teacher’s educational level and years of teaching experience.174 while this prohibition may further some notion of fairness, the problem with the rule is clear: it prohibits districts from incentivizing effective teaching and recruiting top educators to unfavorable situations. in a large majority of districts, this prohibition remains the rule.175 however, in recent years, school districts in a few of the nation’s major cities have done away with this rule, implementing a range of merit pay schemes.176 perhaps the best-known instance of this is michelle rhee’s introduction of a performance bonus in washington, d.c., for all teachers whose students achieve at a certain level.177 however despite the growing popularity of merit pay due to its potential benefits, it is not without its detractors, some saying that opportunity to receive more money for better performance does not actually cause teachers to improve their teaching.178 getting at what she sees as the futility of the idea, gayle fallon, president of the houston federation of teachers said the following about houston’s four-year-old merit pay program: “the insulting thing—often what is underlying these programs—is the thought that, ‘teachers are slacking, but if we give them money, they’ll do better,’ . . . the teachers i !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 174 see lieberman, supra note 5, at 223. 175 see study: few school districts have merit pay, upi.com (feb. 24, 2011), http://www.upi.com/top_news/us/2011/02/24/study-few-school-districts-have-merit-pay/upi-99981298608985/ (stating that only a small percentage of schools districts have merit pay). of the 14,000 school districts in the united states, a study conducted by stuart buck and jay p. greene based on data from vanderbilt university’s national center for performance initiatives suggests that only around 500 of these districts have some form of merit pay. this is about 3.5% of the districts nationally. id. however, even this number is significantly larger than the number of districts that have meaningful merit pay systems. speaking to this point, the researchers said, “most were so weak that they represented no meaningful change from traditional compensation systems.” id. 176 see colorado districts taking up merit pay, denver post, sept. 22, 2010, at a-06 (stating that the denver school system has instituted a merit pay system) [hereinafter colorado districts taking up merit pay]. see also ericka mellon, merit pay for teachers takes hit: hisd defends its program in face of vanderbilt study’s results, merit hisd says reform worked, hous. chron., sept. 22, 2010, at a1 (highlighting that houston has merit pay program); anderson, supra note 145, at a18 (discussing washington, d.c.’s, merit pay program). 177 see anderson, supra note 145, at a18 (“d.c. schools chancellor michelle a. rhee became a hero in reform circles in part because of her insistence on a teachers’ contract that allows performance bonuses.”). 178 see id. (quoting researcher who is skeptical about the ability of merit pay to help improve teacher performance). see also mellon, supra note 176, at a1 (quoting president of the houston federation of teachers expressing that she does not believe in merit pay systems). 2012 columbia journal of race and law 231 know are doing the best they can.”179 though fallon certainly could not be considered a disinterested party concerning this issue, there is some substantial evidence to support this point of view. a three-year study of the effects of merit pay on student performance conducted at the national center on performance incentives at vanderbilt university found that the students of teachers who were offered a $5,000, $10,000, or $15,000 bonus for improvement in student math scores made gains no larger than students whose teacher were not given this offer.180 summarizing the study’s conclusion, the center’s director commented, “this doesn’t mean other programs don’t work. . . . but at the same time, we don’t know if other programs work either.”181 however the results of other studies and the successes of currently implemented programs tell a different story. for instance, district officials in houston say that aspire, the district’s performance pay program, has led to the improvement in student test scores since its institution in 2006.182 while the district acknowledged that the aspire program was not simply a merit pay system, merit pay rests at its core and the program has had positive results.183 a study conducted at north carolina’s sas institute also suggests that merit pay is an effective incentive in getting better teaching out of educators.184 focusing its study on the houston school system, it too found that the district’s merit pay system has had a positive effect on students’ test scores.185 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 179 mellon, supra note 176, at a1. 180 anderson, supra note 145, at a18 in a three-year experiment funded by the federal grant and aided by the rand corp., researchers tracked what happened in nashville schools when math teachers in grades 5 through 8 were offered bonuses of $5,000, $10,000, and $15,000 for hitting annual test-score targets. about 3000 teachers volunteered. researchers randomly assigned half of the participants to a control group ineligible for the bonuses and the other half to an experimental group that could receive bonuses if their students reached certain benchmarks. researchers designed the bonuses to be large enough to function as a legitimate incentive for teachers whose average salary, according to a union official, is between $40,000 and $50,000. there were no additional variables in the experiment: no professional development, mentoring, or other elements meant to affect test scores. the bonuses, totaling nearly $1.3 million, were funded by businessman orrin ingram, according to news reports. . . . on the whole, researchers found no significant difference between the test results from classes led by teachers eligible for bonuses and those led by teachers who were ineligible. id. 181 mellon, supra note 176, at a1. 182 id. (“[houston independent school district (hisd) assistant superintendent carla] [s]tevens added that hisd has seen improved academic achievement since the school board approved the bonus program in 2006. for example, the district has more students scoring at the higher ‘commended’ level on the texas assessment of knowledge and skills.”). 183 id. (reporting higher student scores on the texas assessment of knowledge and skills under the aspire program). 184 id. 185 id. (“a 2009 analysis of hisd’s bonus system found some small positive effects on student test scores. that study was done by researchers with north carolina’s sas institute, which is under contract with hisd to do the statistical analysis that is the basis for the bonuses.”). 232 contracting away success vol. 2:1 yet regardless of whether merit pay actually pushes educators to teach students in a more effective manner, the real strength of merit pay lies in something else: the ability it gives districts to attract top teachers to their district and, more specifically, to the most challenging teaching positions within their system.186 indeed, it is for this reason that many of merit pay’s advocates support the idea.187 by ending strict limitations governing the basis for teacher payment, school districts can spend more money to attract the best teachers to their district and can use financial incentives to draw top teachers to poor-performing schools.188 denver’s institution of such a system, which it calls its professional compensation system or procomp, stands as example of how effective this sort of merit pay program can be.189 while the program has numerous aspects, the basics of system are as follows: teachers receive bonuses when their students perform better on standardized tests than was expected or when they meet the objective for student growth set out by the district.190 additionally, teachers receive bonuses for taking jobs in highpoverty schools or for teaching “hard-to-staff” areas like special education or math.191 the district’s stated purpose for the bonuses is not to improve the teaching of current teachers but to attract top talent to the district, and the program has done exactly that.192 a 2010 university of colorado study of the procomp system indicated that teachers hired after the procomp system was put in place are performing better than those previously with the system. this indicates that the system has brought stronger teachers to the district.193 the study also found that “high-poverty schools with more procomp teachers are retaining more teachers every year.”194 thus, the program seems to be drawing and keeping top talent at high-need schools as well. as has been discussed throughout, the ability to put a top teacher in front of as many students as possible is central to improved student performance. therefore, elimination of the prohibition on merit pay from teacher contracts in every district would allow for installation of systems similar to that of denver across the nation, significantly advancing the goal of improved student achievement nationally. while it appears that allowing for merit pay would have positive effects on all students as the discussion above suggests, it seems that such a change would !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 186 see mellon, supra note 176, at a1 (quoting department of education representatives suggesting that one of the principal goals of offering merit pay is to attract top teachers to tough jobs). see also jeremy meyer, payouts a bonus for dps teachers more than $27 million is being paid this year as incentives to take on challenging duties, denver post, nov. 28, 2010, at b-01 (quoting the superintendent of denver public schools (dps), tom boasberg, as saying, “the purpose of incentive pay is to attract and retain the best people possible and to encourage them to take the most challenging positions.”). 187 see generally meyer, supra note 186, at b-01 (discussing dps’s superintendent’s support for a merit pay system). 188 see generally meyer, supra note 186, at b-01 (describing how dps is spending more money through its merit pay program to attract top teachers the district and keep them once they have come). 189 colorado districts taking up merit pay, supra note 176. under denver’s procomp system, teachers who join the district are enrolled in the program and made eligible for merit pay automatically. teachers teaching in the district prior to the institution of the program have to enroll. id. 190 id. 191 id. 192 see meyer, supra note 186, at b-01 (suggesting the procomp system has brought stronger teachers to dps). 193 id. 194 id. 2012 columbia journal of race and law 233 particularly serve the lowest-performing students, striking at the heart of the nation’s educational crisis. 195 c. teacher evaluation in addition to shifting the focus of layoff provisions away from seniority and toward a merit assessment and allowing for merit pay, reshaping teacher evaluation policy is a critical step in improving student achievement throughout the country. unlike traditional teacher evaluation procedures which prohibit school administrators from evaluating a teacher on the basis of how effective the teacher is at ensuring that students grow academically, evaluation provisions should focus principally on a teacher’s skill at aiding his or her students in their academic development. though currently not widespread, evaluation systems emphasizing teacher effectiveness based on student achievement have started to take root in individual districts throughout the country. for instance, as discussed in part iii, michelle rhee was able to install such a policy in the nation’s capital during her tenure as chancellor of d.c. public schools.196 similar systems have also been implemented in new york city and houston.197 by focusing on student achievement and teacher effectiveness, these districts have greatly increased teacher accountability to the school system and harshly disincentivized poor teaching, which are both critically important to improving student performance. while each of these districts’ evaluation procedures differ slightly, all incorporate a measure known as a “value-added” score to determine how a teacher’s students have grown academically while in that teacher’s classroom.198 this value-added measure compares students only to themselves, tracking an individual’s academic development from one year to the next.199 districts use a student’s score on standardized tests from the current academic year and analyze it against the student’s score on a similar examination from a previous year to generate the student’s value-added score.200 as a result, many invested in educational reform believe this technique is particularly promising as it accounts for racial !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 195 as alluded to here, merit pay, like performance-based layoffs, would go a long way in improving education for some of the students who need the most help: a district’s lowest performers. see generally meyer, supra note 186, at b01 (touting the retention of strong teachers in poor schools under denver’s merit pay system). 196 see turque, supra note 156, at a01. 197 see jason song, lausd presses union on test scores; the district wants new labor contracts to include ‘valueadded’ data as part of teacher evaluations., l.a. times, aug. 21, 2010, at a1. in new york, 20% of a teacher’s evaluation is based on objective measures of student growth, which the district has determined to be a measure of teacher effectiveness. id. 198 see song, supra note 197, at a1. see also nick anderson, gates foundation research finds test score growth is sign of a good teacher, wash. post, dec. 11, 2010, at a18 (stating that value-added is used in the washington, d.c. school district). in washington, d.c., value-added scores make up half of a teacher’s evaluation. watanabe, supra note 150, at a1. 199 see watanabe, supra note 150, at a1 (stating that value-added looks at the individual progress of a student instead of comparing one student to another). 200 los angeles teacher ratings, l.a. times, http://projects.latimes.com/valueadded/faq/#what_is_value_added (last viewed jan. 18, 2012) (“value-added analysis is a statistical method that estimates the effectiveness of a teacher or school by looking at the standardized test scores of students. past scores are used to project each student's future performance. the difference between the child’s actual and projected results is the estimated ‘value’ that the teacher or school added (or subtracted) during the year.”). 234 contracting away success vol. 2:1 and socio-economic differences.201 teachers whose students have value-added scores demonstrating significant academic growth are considered to be quite effective while those with students who show little progress according to value-added analyses are considered to be less effective.202 through the implementation of a value-added analysis, districts employing this assessment technique have been able to remove a significant number of underperforming teachers, dramatically reshaping their teacher corps for the better.203 despite the benefits that value-added analyses gives school districts in assessing the ability of its teachers, many have not been accepting of the new technique, questioning whether it is ready for use in such important decisions as teacher hiring and firing.204 in a september 5, 2010, new york times article, economic columnist david leonhardt notes some of these concerns, stating that while the benefits of the value-added analysis are clear, the scores generated by the technique can fluctuate significantly from one year to the next, making it difficult to know whether the scores of a teacher’s students from any given year accurately represents the teacher’s level of effectiveness.205 further, leonhardt suggests that the analysis does not account for the fact that students are not randomly assigned to teachers, and thus teachers who generally work with slower learners may be negatively represented by the use of valueadded scores through no fault of their own.206 many education experts and union leaders have also questioned the use of the value-added analysis, making the argument that the technique is not yet sufficiently accurate for use in such significant decisions.207 additionally, some experts and officials point !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 201 watanabe, supra note 150, at a1 (“by focusing on the individual progress of students year after year, valueadded put aside factors that contribute to achievement disparities, such as family income, educational levels and english fluency . . . ”). 202 see generally id. as alluded to earlier, even in districts that employ value-added scores, other factors go into a teacher’s overall evaluation. see song, supra note 197, at a1.; see also watanabe, supra note 150, at a1. 203 see watanabe, supra note 150, at a1. as discussed supra at iv.c., as a result of the implementation of valueadded measurements in teacher evaluations in washington, d.c., former chancellor rhee was able to fire seventy-five teachers who were found to be ineffective and gave 700 who were found to be minimally effective one year to improve. id. 204 see song, supra note 197, at a1 (“in an interview last week, [united teachers los angeles president a.j.] duffy criticized value-added analysis because it depends on standardized test scores that he considers flawed. he said that he wasn’t opposed to principals using it confidentially to give teachers feedback, but that it had no place on a formal evaluation.”); howard blume, california; utla won’t accept pay cuts, ‘value-added’; teachers stand firm against larger class and evaluations using students’ test scores, l.a. times, dec. 16 2010, at aa3 (recounting united teachers los angeles expressing their opposition to the use of value-added in teacher evaluations). see also ericka mellon, hisd looks at how to grade teachers; new criteria for evaluation likely to include kids’ test scores; teachers: meeting for months, hous. chron., nov. 8, 2010, at a1 (quoting randi weingarten, president of the american federation of teachers as saying, “the more we look at it [value-added], the more concerned we are it’s not ready for prime time”); turque, supra note 156, at a01 (“some teachers call it overly complex and dependent on an unreliable statistical methodology for linking test scores to individual teachers.”). 205 david leonhardt, op-ed., stand and deliver, n.y. times mag., sept. 5, 2010, at 13, 14 (“among the limitations [of value-added], scores can bounce around from year to year for any one teacher, notes ross weiner of the aspen institute, who is generally a fan of the value-added approach. so a single year of scores–which some states may use–can be misleading.”). 206 id. (“in addition, students are not randomly assigned to teachers; indeed, principals may deliberately assign slow learners to certain teachers, unfairly lowering their scores.”). 2012 columbia journal of race and law 235 to the fact that the use of value-added encourages instructors to “teach to the test” as another major concern with the use of the new evaluation measure.208 however, notwithstanding the concerns with the valued-added analysis voiced by some in the education world, recent studies have provided substantial evidence that the new technique is an accurate indicator of a teacher’s level of instructional effectiveness. concerned with, among other things, the purported large fluctuations in results seen at times with the use of the value-added analysis, harvard university education researcher thomas kane conducted one of the earliest studies of the value-added analysis to examine this claim.209 focusing his study on the los angeles united school district, kane selected 156 district teachers and randomly assigned them to different classrooms.210 next, using previous value-added scores of these teacher’s students, kane tried to predict how effective these teachers would be with their new students.211 the results were that the past value-added scores were strong predictors of how these teachers did in their new classrooms, suggesting that the evaluation measure is probably significantly more accurate than some had initially thought.212 thus, despite skepticism about the effectiveness of the value-added analysis as an assessment measure, some research appears to be indicating that the measure can be trusted to give reliable assessments of teachers.213 a 2010 study conducted by the bill and melinda gates foundation has only further confirmed the strength of the value-added analysis. the $45 million study comprising 3,000 teachers from six school districts across the country concluded that despite the technique’s imperfections, its advantages substantially outweigh its flaws.214 similar to kane’s initial experiment, the study found that teachers whose students produced high value-added scores in the past were able to replicate these results in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 207 turque, supra note 156, at aa1 (teachers expressing their concern is an unreliable measure for making judgments concerning teacher effectiveness). mellon, supra note 176, at a1 (aft president randi weingarten expressing her concern that value-added is not ready for use in its current state). 208 felch, supra note 150, at aa1 (“teachers unions and some education experts have argued that value-added is an unreliable measure that encourages rote learning and ‘teaching to the test.’”). 209 jason felch, grading the teachers: no gold stars for excellent l.a. teaching; effective instructors get little recognition. often their principals don’t even know who they are., l.a. times, aug. 29, 2010, at a1. commenting on the strength of the value-added analysis, harvard’s kane commented that while it is not a perfect measure, “there is currently not a better measure of teacher effectiveness than the value-added approach.” id. at a23. 210 id. 211 id. 212 id. a los angeles times study of value-added further demonstrated the strength of the value-added analysis. id. though value-added scores are not yet used as part of teacher evaluations in los angeles, the los angeles times used the analysis to rank 6,000 third through fifth grade teachers in lausd. id.; felch, supra note 150, at aa1. the study found that the teachers who received the top 100 scores were extremely effective at helping students grow academically. felch, supra note 209, at a1. addressing this, a recent los angeles times article wrote the following: “what’s clear from the data is that these teachers have an immediate and profound effect on how much children learn. on average, their students leapt twelve percentile points on tests of english, from the 58th to the 70th. in math, the gains were more stark: a seventeen percentile point jump, from 58th to 75th. all in a single year.” id. at a2. thus, the l.a. times gives significant credence to how accurate the value-added approach is in identifying top teachers. 213 see felch, supra note 209, at a1 (discussing research indicating that the value-added analysis is an accurate and reliable measure of teacher effectiveness). 214 see anderson, supra note 145, at a18. 236 contracting away success vol. 2:1 subsequent years and across different classrooms, bolstering an argument for the technique’s accuracy.215 as one foundation official put it, “in every grade and subject we studied, a teacher’s past success in raising student achievement on state tests was one of the strongest predictors of his or her ability to do it again.”216 yet the foundation’s study did more than further confirm the strength of the value-added technique as a reliable metric from teacher effectiveness. researchers found that students whose valueadded scores indicated significant academic growth were not simply prepared for an examination.217 these students had also gained a true understanding of the math concepts they had been taught and were able to demonstrate their comprehension of texts they had read in writing, directly countering the idea that value-added encourages teaching to the test as some have suggested.218 in fact, students who reported that their teacher had only taught them for the test registered lower value-added scores than their peers.219 thus, while the value-added analysis may not be perfect and at times is subject to varying results, as the research here indicates, it does serve as a relatively accurate indicator of teacher performance based on true student understanding and development. for these reasons, contract provisions that call for implementation of this metric would give school districts a reliable tool not simply to review teachers on such measures as teaching techniques or ability to manage their classroom but how effective they are at doing the job they are paid to perform, which is ensuring student academic growth. yet in addition to simply reshaping contract provisions to create a more rigorous, productdriven evaluation process, teacher contracts should stipulate clear incentives and disincentives for strong and poor performance, respectively. based around value-added scores and other evaluation measures, teachers could be assigned a performance score. a district could then create a numeric scale along which it would place its teachers for assessment purposes.220 it could set numeric benchmarks to stratify the scale into low, average, and high-performing categories. for those teachers who fell into the lowperforming category at the end of the academic year, they would be placed on probation, and if their performances were similar the following year, they would be subject to dismissal. this system, mirroring the one that has been implemented in washington, d.c., would create both a significant disincentive for poor teaching and a procedure by which poor teachers could quickly be removed.221 these changes would not only encourage teachers to constantly be working to teach at the highest level, but would also quickly eliminate poor teachers so that the fewest number of students possible would be underserved. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 215 id. 216 id. 217 id. (“other findings suggest that teachers with high ‘value-added’ ratings are able to help students understand math concepts or demonstrate reading comprehension through writing. . . . ”). 218 id. 219 felch, supra note 209, at a1 (“but the study found that teachers whose students said they ‘taught to the test’ were, on average, lower performers on value-added measures than their peers, not higher.”). 220 the teacher evaluation scores discussed here do not only refer to the value-added score generated for a teacher’s student, but also other factors that would go into the evaluation process. these could include management of the classroom or disciplinary measures. however, what should rest at the center of the evaluation process and should count for a substantial percentage are value-added scores to ensure teachers are helping students grow academically. 221 turque, supra note 156, at a01 (describing how under washington, d.c.’s, evaluations system, if a teacher receives a rating of minimally effective, “they have one year to improve their performance or face dismissal.”). 2012 columbia journal of race and law 237 as an incentive for strong teaching, teacher contracts should provide for the public release of the names of the teachers who achieve evaluation scores in the top third of all district teachers, recognizing them for their excellent achievement. such practices have been implemented in select districts around the country. for instance, in los angeles, school officials released information to the los angeles times detailing the success of 6,000 elementary school teachers in raising student english and math scores.222 the l.a. times published an article containing this information in august of 2010.223 as previously noted, while lausd does not currently use value-added scores in teacher evaluations, that information did serve as the basis of this report.224 two south carolina newspapers published the same information about teachers in charleston, and a similar database of teachers has been published for public access as well.225 unlike these publications, however, which published the scores for teachers no matter how well or poorly they performed, two reasons suggest that publishing the names of only those teachers in the top third of the district may be better. first, while value-added data does give a good indication of a teacher’s effectiveness, it is not as good at distinguishing between teachers who have similar levels of effectiveness. as some education experts have pointed out, distinguishing between teachers who, for instance, rank in the 45th and 53rd percentile for effectiveness is an instance in which the value-added analysis is at its weakest.226 thus by comparing all teachers using value-added as the basis, the rankings are susceptible to inaccuracy concerning teachers of moderate performance level. second, publishing the scores of the worst performing teachers in the district may subject these instructors to substantial public humiliation.227 if rapid removal for poor performance, which is the disincentive outlined above, is already a part of a teacher’s employment terms, public embarrassment seems unnecessary to ensure teachers are doing all they can to offer top level instruction to their students. similarly, such a measure may discourage talented yet inexperienced young people from entering the teaching profession as they may worry about damage done to their professional reputation while simply developing their teaching skills. a practice of publishing only the names of the top third of teachers eliminates both the problem of undue public embarrassment and value-added inaccuracy, serving only as an incentive for teachers to perform well and be recognized. while the permissibility of releasing teacher evaluation scores is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 222 jason song & jason felch, n.y. to release teacher ratings; the move is expected to escalate the national debate on educator evaluations, l.a. times, oct. 21, 2010, at a1. 223 id. 224 id. 225 id. 226 see, e.g., leonhardt, supra note 205, at 13, 14 (“the value-added data probably can identify the best and worst teachers, researchers say, but it may not be very reliable at distinguishing teachers in the middle of the pack. . . . he [joel klein, superintendent of new york’s public schools] also said, ‘i wouldn’t try to make big distinctions between the 47th and 55th percentiles.’”); diane ravitch, why naming names is wrong, education week (sept. 27, 2011, 7:50 am), http://blogs.edweek.org/edweek/bridging-differences/2011/09/why_naming_names_is_wrong.html (suggesting that the value-added analysis can only effectively distinguish between teacher ranked at the very top and bottom of the district but cannot reliably delineate between those falling in the middle). 227 see, e.g., paul riede, should ratings of public school teachers be made public?, syracuse.com (oct. 9, 2011, 3:22 am), http://www.syracuse.com/news/index.ssf/2011/10/should_ratings_of_public_schoo.html (stating that publishing the rankings of underperforming teachers would be humiliating for these educators). 238 contracting away success vol. 2:1 currently not something addressed in bargaining contracts, contracts could explicitly provide for this as the release of this information in the few districts that have already done so has been highly contested.228 while the implementation of the more rigorous teacher evaluation system and the associated incentives and disincentives suggested here would not specifically target one group of students (high performers, low performers, etc.), holding teachers to higher teaching standards would undoubtedly prove beneficial for all students. low-performing and particularly high-performing students who are currently most underserved would be likely to enjoy an increase in the quality of their instruction as would all other students, as teachers across the board would be held to higher performance standards. though there are potentially numerous modifications that could be made to collective bargaining agreements to facilitate positive change in student performance, the three modifications discussed above address areas of teacher contracts that most desperately need restructuring. revamping evaluation provisions in the manner addressed herein would substantially increase teacher accountability and eliminate ineffective teachers from the teaching corps, while reshaping layoff provisions and allowing for merit pay would make it much easier for districts to put a strong teacher in every classroom. together, these changes would significantly change the makeup of america’s teaching corps, attracting and retaining the brightest and most committed to the field and tolerating nothing less. it is only behind the efforts of talented teachers that the nation’s students will improvement academically. the suggested modifications discussed in part iv rest upon this understanding. v. conclusion from their very inception, teachers’ unions stood as symbols of hope and dignity for educators who had very little of either. born into tumultuous times, these organizations gave teachers a collective voice that could not be ignored, demanding for them the respect and recognition a group tasked with such a great responsibility undoubtedly deserved. when struggling school districts of the early twentieth century made opportunistic moves to take advantage of teachers or simply improperly prioritized their needs, teachers’ unions served as a vehicle by which educators could demand these districts’ attention. the advent of union collective bargaining in the 1960’s gave teachers a seat at the table of decisionmaking that for years had been nothing more than a distant dream. yet as the twentieth century drew closer to its end, teachers’ unions began to lose their way. so focused on the concerns of the teachers they represented, their attention turned away from those who deserved it the most: american children. union collective bargaining agreements focused principally on the needs of teachers at the expense of students have characterized the late twentieth and early twenty-first centuries, and as a result, have had a detrimental effect on the academic performance of america’s young people. the nation no longer serves as the international example of educational excellence it once did, now lagging behind far less developed countries. the effects on the country’s poor and minority children have been particularly devastating, as they have often been subject to the worst that an already strained system has to offer. to change this tide, the nation must actively reshape teacher collective bargaining agreements, not in a manner that unfairly undermines the interests of teachers, but in a way that holds teachers accountable to perform at the highest level and focus their efforts and attention principally on the needs of the students who fill their classrooms. contracts must provide for ways to evaluate teachers on the merits of their work and put a highly effective teacher in even the poorest classrooms. the nation cannot continue on !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 228 see song & felch, supra note 222, at a1 (stating that the teachers’ union in new york plan to fight release of teacher ratings). see also felch, supra note 209, at a1 (“the idea of publicly rating teachers by name has generated enormous controversy among educators and experts across the country. the debate has focused on whether the method is sound and the publicity is fair to those with low rankings.”). 2012 columbia journal of race and law 239 the educational path which it currently walks, and teachers’ unions must join the effort to correct a badly broken educational system through reimagining traditional terms of contract. the stakes, as one impassioned contributor to the washington post points out, could not be higher: “until we fix our schools, the gap between the haves and the have-nots will only grow wider and the united states will fall further behind the rest of the industrialized world in education, rendering the american dream a distant, elusive memory.”229 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 229 op-ed., how to fix our schools: a manifesto, wash. post, oct. 10, 2010, at b1. 100 cherokee freedmen and the color of belonging vol. 5.2 cherokee freedmen and the color of belonging lolita buckner inniss* this article addresses the cherokee nation and its historic conflict with the descendants of its former black slaves, designated cherokee freedmen. this article specifically addresses how historic discussions of black, red, and white skin colors, designating the african-ancestored, aboriginal (native american), and europeanancestored people of the united states, have helped to shape the contours of color-based national belonging among the cherokee. the cherokee past practice of black slavery and the past and continuing use of skin color-coded belonging not only undermines the coherence of cherokee sovereignty, identity, and belonging but also problematizes the notion of an explicitly aboriginal way of life by bridging red and white cultural difference over a point of legal and ethical contention: black inequality. i. introduction..............................................................................................101 ii. the native american sovereignty conundrum................................ 103 iii. cherokee color-based belonging, slavery, and political legitimacy................................................................................................... 105 a. skin color discourse as the source of belonging............................ 108 b. whiteness and cherokee political legitimacy..................................108 c. cherokee constitutional norms, color, and citizenship................. 111 iv. cherokee freedmen emancipation and its aftermath.................. 114 v. conclusion: the end of an era, but not the end of color-based claims to belonging................................................................................ 118 * professor of law, cleveland-marshall college of law, cleveland state university. ph.d and llm with distinction, osgoode hall, york university; j. d., university of california, los angeles; a.b., princeton university. the author thanks members of the harvard university law school institute for global law and policy, members of the lutie lytle workshop, and dean kevin r. johnson of the university of california, davis for reviewing versions of this article. the author offers special thanks to associate dean carla pratt of pennsylvania state university school of law for her in depth comments on earlier drafts of this article. finally, but not least, the author thanks the editors of the columbia journal of race and law and especially madiba dennie for her assistance during the editing process. 2015 columbia journal of race and law 101 i. introduction it is a relatively little-known aspect of united states history that the cherokee and other aboriginal people1 in the united states sometimes held african-ancestored slaves.2 this article addresses cherokee slaveholding and the tribe’s historic conflict with the descendants of its former black3 slaves, designated cherokee freedmen, and examines the ways in which skin color has served as a mechanism for assessing citizenship and acceptance in the cherokee nation. it specifically analyzes how historic discussions of black, red, and white4 1 this article interchangeably uses the words “aboriginal,” “native american,” “indigenous,” or “indian” to designate members of what are believed to be the earliest groups of peoples in what is now the united states. all of these terms have been the subject of critique, given that there are, as one scholar has written, “a limited assortment of unsatisfactory terms” for labeling these first people. alexandra harmon, indians in the making: ethnic relations and indian identities around puget sound 10 (1998). indeed, acknowledging their apparent priority in the americas, in canada some aboriginal persons, those who are neither inuit nor métis, are called (or call themselves) “first nations.” see, e.g., peter kulchyski, like the sound of a drum: aboriginal cultural politics in denendeh and nunavut 232 (2005). the word “indian” has been a particular source of controversy. though it is perhaps one of the earliest terms used to describe these early inhabitants the americas, a key complaint about the word is that it is a misnomer that came into use due to the navigational error of christopher columbus, who believed that he had reached south asia. besides being a misnomer, the word indian has also traditionally been freighted with a number of unpalatable associations, such as “(1) generalizing from one tribe’s society and culture to all indians, (2) conceiving of indians in terms of their deficiencies according to white ideals rather than in terms of their own various cultures, and (3) using moral evaluation as description of indians.” robert berkofer, the white man's indian: images of the american indian from columbus to the present 25-26 (1979). though i do not use these terms, it is worth mentioning that some scholars have also used the terms “white indian” and “black indian” to distinguish persons who claim indian ancestry but who also have, respectively, significant amounts of european or african ancestry. see, e.g., carla d. pratt, tribes and tribulations: beyond sovereign immunity and toward reparation and reconciliation for the estelusti, 11 wash. & lee race & ethnic anc. l.j. 61, 68 n.28 (2005) [hereinafter pratt, tribes and tribulations]. 2 the cherokee were not the only tribe to hold african-ancestored slaves. the choctaw and the chickasaw, for example, held over 5,000 blacks in slavery by 1860. frank cunningham, general stand watie's confederate indians 32 (1959). 3 this article uses the words “black” and “african-ancestored” interchangeably to refer to people who themselves originated from or whose ancestors in significant numbers originated from the continent of africa. just what to call such persons has been the subject of some debate. it has been suggested that the transition from “negro” and “colored” to “black” and “african-american” was as a result of the efforts by persons of african ancestry in the 1960's to achieve a sense of racial pride. see, e.g., f. james davis, who is black? 145-46 (1991). as some scholars have noted, even the label “african-american” is subject to further subdivision, given that it may be misleading to apply it to persons who are not the descendants of africans enslaved in the united states. see, e.g., jerome e. morris, ethnicity, in 1 encyclopedia of african american education 252, 253 (kofi lomotey ed., 2010) (explaining that “the term african american implies that an individual shares common social, political, historical and cultural experiences with other descendants of enslaved africans in the united states, whereas the term black is a more inclusive term that may include people from varied experiences (caribbean countries or the african continent).”) (emphasis in original); allison blakely, the emergence of afro-europe: a preliminary sketch, in black europe and the african diaspora 3, 11 (darlene clark hine et al. eds., 2009) (noting the ambiguity of the word black in transcultural and transnational contexts and observing that “black subjects from the caribbean and africa have had to be accommodated for mutual benefit, just as the descendants of enslaved africans in the united states have had to be.”); marilyn yaquinto, redress for historical injustices in the united states: on reparations for slavery, jim crow, and their legacies 470 (2007) (noting descendants of africans enslaved in the united states as a distinct group). 4 i use the word “white” to designate european-ancestored persons in the united states, as many other scholars have. see, e.g., paul spickard, almost all aliens: immigration, race, and colonialism in american history and identity 80 (2010) (describing european migrants to the united states as forming the “second great panethnicity: the white race.”); nicholas faraclas & marta viada bellido de luna, marginalized peoples, racialized slavery and the emergence of the atlantic creoles, in agency in the emergence of creole languages: the role of women, renegades, and people of african and indigenous descent in the emergence of the colonial era creoles 36-37 (nicholas faraclas ed., 2012) (describing the creation of a “new calvinist, capitalist and racialized form of colonization,” which relied on strict separation of european-ancestored peoples, who were white, from all others). the category white is perhaps less stringently drawn in the contemporary united states as a result of racial mixing among whites and certain 102 cherokee freedmen and the color of belonging vol. 5.2 skin colors have helped to shape the historical contours of color-based national belonging among the cherokee.5 this account seeks to expose the ambivalence and contingency of ideas of nationhood, sovereignty, and race. this dynamic is grounded in the existence of black skin color discrimination that emerged with the spread of black slavery among the cherokee and has culminated in the contemporary political exclusion of cherokee freedmen. widespread and longstanding white and red skin preference helped to shape formal legal notions of cherokee status, privilege, and sovereignty. many scholars have addressed black subordination and slavery among the cherokee6 and other native racial minority groups (chiefly asians and latinos) and the broader embrace of these hybrid identities as white identities. see george a. yancey, who is white?: latinos, asians, and the new black/nonblack divide 3-5; 14-15 (2003) (arguing that though african americans remain separated, some other racial minorities in the united states, especially asians and latinos, may attain majority or white status). 5 i use the crude designator of “red” to denote the unique racial and color-based identity of native americans. the term has been subject of critique, but i use it only to distinguish between the black and white skin color designations prevalent throughout the rest of this article. addressing the issue of color in the context of cherokee social and political status is complex because color often does not align with race. significantly, white does not always signify that a person is exclusively or primarily of european ancestry or culture, nor does red always indicate indian. e-mail from carla d. pratt, nancy j. lemont faculty scholar and professor of law, penn state dickinson school of law (may 7, 2014, 3:37 p.m. es]) (on file with author). whiteness among the cherokee has developed as a result of specific geographical, social and cultural contexts. it has been noted, for example, that many members of the cherokee nation in tahlequah, oklahoma—the capital of the cherokee nation—present as phenotypically white. id. these observations are in line with the work of some demographers of the cherokee nation in the twentieth century. for example, in the 1980 federal census, only half of those who reported cherokee as a principal ancestry indicated american indian as their only ancestry. russell thornton, the cherokees: a population history 193 (1990). of those who indicated a second ancestry, twenty percent reported european ancestry. id. very few reported black or hispanic second ancestries. id. perhaps most interestingly, over a quarter of the cherokee population identified a european ancestry as their first ancestry. id. at 196. 6 it is useful here to note that much of the discussion in this article addresses what is contemporarily known as the cherokee nation. the cherokee nation is one of three federally-recognized cherokee governments, the others being the eastern band of cherokee indians (composed of descendants of cherokees who did not remove to indian territory in the 1830s) and the united keetoowah band of cherokee indians (situated in northeastern oklahoma and arkansas and consisting of cherokee cultural traditionalists). s. alan ray, a race or a nation? cherokee national identity and the status of freedmen's descendants, 12 mich. j. race & l. 387, 399, n. 50 (2007) [hereinafter ray, a race or a nation?] (citing russell thornton, the cherokees: a population history 138-43 (1990)). the cherokee nations refers specifically to the group that was created by “the five civilized tribes act of 1906 and a key 1976 federal court decision to establish legal continuity with the tribe that walked the trail of tears in 1838-39.” id. at 400. the historic division between the three tribes is largely attributed to political differences over removal. for a general discussion of the historic separation of the tribes, see samuel c. stambaugh, amos kendall et al., a faithful history of the cherokee tribes of indians from the period of our first intercourse with them, down to the present (1846). as one observer writes, “[i]nitially the cherokee leadership was both publicly and privately united against the acceptance of land cessions and removal as the only option for the cherokee.” ezra rosser, the nature of representation: the cherokee right to a congressional delegate, 15 b.u. pub. int. l.j. 91, 99 (2005). there has been some research indicating that the keetoowah branch of cherokee, though apparently existing in several forms and factions for many decades before and after the united states civil war, were formally established and activated in 1858 in order to effectuate abolitionist sentiments among the cherokee and to aid the union. patrick neal minges, slavery in the cherokee nation: the keetoowah society and defining of a people, 1855-1867 233 n.28 (2003) [hereinafter minges, the keetoowah society]. 2015 columbia journal of race and law 103 american tribes.7 these commentators have long noted the struggle for black tribal inclusion. some recent writings have addressed in detail the disenrollment of cherokee freedmen.8 there are also writings that address the enslavement of african-ancestored people by native americans, such as the black slavery that the five “civilized” tribes practiced.9 in contradistinction with much of the existing work on this issue, my article offers another perspective: it addresses the role of skin color bias in the production of cherokee citizenship.10 this article begins with a discussion of some of the difficulties of framing native american sovereignty. next, it traces the rise of color-based belonging and its relationship to black slavery and the search for cherokee political legitimacy. finally, it addresses some of the post-emancipation challenges of cherokee freedmen, and concludes by suggesting that the cherokee battle for sovereignty has become a site for the reification of longstanding ideologies about the differences between black, red, and white peoples. ii. the native american sovereignty conundrum sovereignty is often contingent and contested. it is rife with practical, theoretical, and methodological challenges, and frequently enshrines what may be outmoded or oppressive norms and ideas.11 7 see, e.g., jack forbes, africans and native americans: the language of race and the evolution of redblack peoples (1993); gary nash, red, white, and black: the peoples of early north america (4th ed. 2000); confounding the color line: the indian-black experience in north america (james f. brooks ed., 2002); tiya miles, ties that bind: the story of an afro-cherokee family in slavery and freedom (2005) [hereinafter miles, ties that bind]; claudio saunt, black, white, and indian: race and the unmaking of an american family (2006); circe sturm, blood politics: race, culture and identity in the cherokee nation of oklahoma (2002); daniel littlefield, the cherokee freedmen: from emancipation to american citizenship (1978); fay a. yarbrough, race and the cherokee nation: sovereignty in the nineteenth century (2007). 8 see, e.g., stacy l. leeds & erin s. shirl, whose sovereignty? tribal citizenship, federal indian law, and globalization, 46 ariz. st. l.j. 89 (2014) [hereinafter leeds & shirl, whose sovereignty?]; joseph william singer, tribal sovereignty and human rights, 2013 mich. st. l. rev. 307; jessica jones, cherokee by blood and the freedmen debate: the conflict of minority group rights in a liberal state, 22 nat'l black l.j. 1 (2009); greg rubio, reclaiming indian civil rights: the application of international human rights law to tribal disenrollment actions, 11 or. rev. int'l l. 1 (2009); ray, a race or a nation?, supra note 6; carla d. pratt, contemporary racial realities: tribal kulturkampf: the role of race ideology in constructing native american identity, 35 seton hall l. rev. 1241 (2005) [hereinafter pratt, contemporary racial realities]; lydia edwards, comment, protecting black tribal members: is the thirteenth amendment the linchpin to securing equal rights within indian country?, 8 berkeley j. afr.-am. l. & pol'y 122 (2006), terrion l. williamson, diversity, impartiality, and representation on the bench symposium, note, the plight of "nappy-headed" indians: the role of tribal sovereignty in the systematic discrimination against black freedmen by the federal government and native american tribes, 10 mich. j. race & l. 233 (2004). 9 historians have traditionally used the phrase “five civilized tribes” to refer collectively to the cherokee, chickasaw, choctaw, creek, and seminole tribes. these groups were said to have more sophisticated cultures and customs that were more akin to western norms than practices of other aboriginal groups. see, e.g., david e. wilkins, american indian sovereignty, and the u.s. supreme court: the masking of justice 13 (1997). the cherokee embraced early unites states efforts to domesticate the indian tribes, including adopting an agrarian lifestyle and developing a system of education, a government of separated powers, and a constitution modeled on that of the united states. for a discussion of cherokee constitutionalism, see infra part iii. cherokee constitutional norms, color, and citizenship. this article adopts the phrase term “five civilized tribes” in keeping with the usage of other writers on the topic. see, e.g., pratt, tribes and tribulations, supra note 1, at 75. 10 this approach calls to mind some of the work of several scholars from a variety of disciplines who have queried the nature of whiteness as a social category. see, e.g., ian haney lopez, the social construction of race: some observations on illusion, fabrication and choice, 29 harv. c.r.-c.l. l. rev. 1, 7 (1994). one scholar has argued, for example, that by giving poor white workers privilege due to their skin color, the plantation bourgeoisie created the “white race" as an institution. theodore w. allen. the invention of the white race: the origin of racial oppression in anglo-america 246-250 (1997). 11 for example, one scholar has noted that “[e]xisiting international ideas and ideals [such as sovereignty] were crafted within specific and narrow social, economic, historical and cultural spaces.” berta esperanza hernandez-truyol, globalized citizenship: sovereignty, security and soul, 50 vill. l. rev. 1009, 1014 (2005). 104 cherokee freedmen and the color of belonging vol. 5.2 this is especially true in the context of united states aboriginal people. native american sovereignty is a concept “that has a history of contest, shifting meanings, and culturally-specific rhetorics.”12 this is largely because native american tribes have a unique legal status in the united states.13 on the one hand, native americans are distinct nations whose existence pre-dates the united states constitution.14 on the other hand, native american tribes are also subject to many united states political and legal norms.15 the united states supreme court has largely relied on the indian commerce clause, which grants congress the authority “to regulate commerce … with the indian tribes,” as the source of united states the federal government's exclusive power against states and plenary power over tribes.16 “the indian commerce clause makes ‘indian relations … the exclusive province of federal law.’”17 however, as some recent scholarship suggests, united states federal government’s sweeping power over native americans may also derive from a broader set of norms, both within and outside of the united states constitution.18 one response to the difficulties of framing sovereignty has been to view sovereignty as a social, cultural, and intellectual development rather than as chiefly a geo-political and legal construct.19 sovereignty in general is frequently seen as highly contested, essentialist, and perhaps more symbolic than literal.20 native american sovereignty has sometimes meant borrowings from and compromises with the united states government, and thus self-governance and self-determination differ significantly in the context of a dominant united states government.21 indeed, some observers have gone so far as to argue that, in the 12 scott richard lyons, rhetorical sovereignty: what do american indians want from writing?, 51 j. conf. composition & comm. 447, 458 (2000). 13 the foundations of native american sovereignty in the united states are largely premised on three important cases, all of which establish native american tribes as subordinate sovereigns. see johnson v. m’intosh, 21 u.s. (8 wheat.) 543 (1823) (asserting that the doctrine of discovery gives the “discovering” european state the sole right to acquire tribal territory through “purchase or conquest”); see also cherokee nation v. georgia, 30 u.s. (5 pet.) 1 (1831) (articulating the notion that while tribes are “states,” distinct, self-governing political entities, they are not wholly autonomous); worcester v. georgia, 31 u.s. 515 n.2 (1832) (deeming the united states a tribal “protector” in an unequal alliance, yet noting the tribes retain all internal attributes of sovereignty). 14 see santa clara pueblo v. martinez, 436 u.s. 49, 55 (1978); worcester, 31 u.s. at 559. for a general discussion of native american sovereignty, see generally william wood, it wasn't an accident: the tribal sovereign immunity story, 62 am. u. l. rev. 1587 (2013). 15 most scholarly discussions of native american sovereignty and law focus on the relationship between native american tribes and the federal government. this is premised on the typical assumption that native american regulatory regimes in united states were exclusively and ultimately within the federal government's domain. while much of the native american sovereignty and autonomy debate has been framed in the context of united states federal law, some recent scholarship has shown how states and territories also extended their legislative and judicial authority over native americans during the early history of the united states. see, e.g., deborah a. rosen, american indians and state law: sovereignty, race, and citizenship, 1790-1880 19-50 (2007). 16 u.s. const. art. i, § 8. 17 seminole tribe v. florida, 517 u.s. 44, 60 (1996) (quoting cnty. of oneida v. oneida indian nation, 470 u.s. 226, 234 (1985)). some recent jurisprudence has questioned, however, whether congressional plenary power and inherent tribal power may coexist. see gregory ablavsky, beyond the indian commerce clause, 124 yale l.j. 1012, 1015 (2015) (citing united states v. lara, 541 u.s. 193, 214-15, 224-25 (2004) (thomas, j., concurring)). 18 ablavsky, supra note 17, at 1088. 19 for example, scholar robert allen warrior coined the term “intellectual sovereignty” to describe the efforts of indigenous scholars to counter external, non-indigenous voices and to make norms of sovereignty cognizant of tradition. robert allen warrior, tribal secrets: recovering american indian intellectual traditions 87-98 (1995). 20 jane bartleson, sovereignty as symbolic form 1 (2014). this insistence on the mutability of sovereignty has stretched sovereignty beyond its established connotations and legitimized new political practices. id. bartleson asserts that sovereignty has become “an object and instrument of government of government rather than its precondition, and that the strategies harnessed for this purpose were often legitimized with reference to the mutability and contingency of sovereignty.” id. 21 i have previously discussed this unique form of sovereignty using the term sui generis aboriginal rights, arguing that such rights arise from alternative sources of law that reflect the unique historical presence of aboriginal peoples in 2015 columbia journal of race and law 105 absence of native american consent via treaty, “there is no acceptable, historically-derived, textual constitutional explanation for the exercise of any federal authority over indian tribes.”22 sovereignty remains, as one commentator has observed, “[p]erhaps the most basic principle of all indian law.”23 regardless of its source, sovereignty typically includes certain core characteristics such as indivisibility, territoriality, domestic hierarchy, political autonomy, and the right to be undisturbed by external political actors.24 despite contestations in meaning, power has always been at the heart of sovereignty.25 sovereignty is “the power to govern, the power to determine the shape of a society.”26 however, while territoriality and the external recognition of state power are often seen as central to sovereignty, the sovereign’s exercise of power over populations via tools such as racial categorization usually goes unnoticed.27 race is said to be a principle tool in the exercise of sovereign power.28 in summary, skin color29 has historically been deeply intertwined with shaping the content of sovereignty.30 iii. cherokee color-based belonging, slavery, and political legitimacy similar to discussions of sovereignty, traditional historical accounts of relationships between black, red, and white peoples have also proven especially contested and complex, particularly in the context of considering the cherokee enslavement african-ancestored people. very often such accounts ignore the cross-cultural, trans-national nature of interactions between the three groups, and may altogether leave out the role of blacks in relationships between red and white peoples. it has been observed that a scholar’s viewpoint on the development of relations between the aboriginal peoples of the americas and non-aboriginal people impacts how the scholar interprets primary legal and historical materials.31 thus, it is perhaps unsurprising that many legal historical accounts center on the relations between red and white people as shaped by united states federal north america, representing a bridge between aboriginal and european legal customs. see lolita buckner inniss, toward a sui generis view of black rights in canada? overcoming the difference-denial model of countering anti-black racism, 9 berkeley j. afr.-am. l. & pol'y 32, 50 (2007) [hereinafter inniss, toward a sui generis view] (citing john borrows & leonard i. rotman, the sui generis nature of aboriginal rights: does it make a difference? 36 alberta. l. rev. 9 (1997)). 22 robert n. clinton, there is no federal supremacy clause for indian tribes, 34 ariz. st. l.j. 113, 116 (2002). 23 felix s. cohen, handbook of federal indian law 231 (1982). for further discussions of native american sovereignty, see generally heidi kiiwetinepinesiik stark, nenabozho's smart berries: rethinking tribal sovereignty and accountability, 2013 mich. st. l. rev. 339 (2013); wenona t. singel, cultural sovereignty and transplanted law: tensions in indigenous self-rule, 15 kan. j.l. & pub. pol'y 357 (2006); sarah krakoff, a narrative of sovereignty: illuminating the paradox of the domestic dependent nation, 83 or. l. rev. 1109 (2004); rebecca tsosie, reclaiming native stories: an article on cultural appropriation and cultural rights, 34 ariz. st. l.j. 299 (2002.) 24 see tanja e. alberts, constructing sovereignty between politics and law 20 (2012). 25 antony anghie, imperialism, sovereignty and the making of international law 108 (2007) (“[s]overeignty is a set of powers and competences which can be enjoyed by all states regardless of their particular cultural identities.”). 26 lincoln l. davies, skull valley crossroads: reconciling native sovereignty and the federal trust, 68 md. l. rev. 290, 318 (2009). 27 achille mbembe, sovereignty as a form of expenditure, in sovereign bodies: citizens, migrants, and states in the postcolonial world 148, 165-166 (thomas blom hansen & finn stepputat eds., 2009). 28 stark racial distinctions or absolutes are said to have played a key role in articulating and promoting modern sovereign power. see falguni a. sheth, toward a political philosophy of race 30 (2009) 29 although skin color is not always tantamount to race, see supra note 5, skin color has long served a proxy for biological race and thus one practical basis for racial discrimination. see patrick manning, the african diaspora: a history through culture 144 (2009). 30 anghie, supra note 25, at 102-104. 31 robert n. clinton, the curse of relevance: an essay on the relationship of historical research to federal indian litigation, 28 ariz. l. rev. 29, 30 (1986). 106 cherokee freedmen and the color of belonging vol. 5.2 law; such accounts do not often address interactions between blacks, indians, and whites, ignoring how native american laws and norms have informed those interactions.32 studying the interrelation between black, red, and white racial identities raises numerous difficulties. color bias is only part of the story of african-ancestored presence among the cherokee. the cherokee practice of black slavery is perhaps best thought of in isolation, since slavery under any circumstance presents broad legal, moral, ethical, social, political and economic concerns. color bias is nonetheless a significant part of the broader story of interracial interactions among the cherokee. this is especially true in a context where indians are first subordinated by a dominant white group, then attain some degree of wealth, power, social standing, and in turn subordinate black people. the cherokee were once among the wealthiest of the north american aboriginal groups and sometimes owned large plantations.33 like many white plantation owners in the early nineteenth century, many cherokee relied upon black slave labor to cultivate their lands.34 when the cherokee were expelled from the southeast united states by the federal government, some of them took their slaves with them on the long, brutal march known as the trail of tears. by the 1820s, slavery had become far more common among the cherokee and was, according to one observer, “a cornerstone of cherokee progressive society.”35 slavery among the cherokee, however, did not begin with the enslavement of black people. even before the cherokee had widespread contact with europeans, the cherokee exercised their own indigenous form of human bondage.36 some scholars have observed pre-contact slavery among the cherokee bore so little resemblance to western practices that the use of the word “slave” to describe people held by the cherokee was inaccurate.37 though captives were generally taken via intertribal warfare, the capture of slaves was typically not the reason for waging such wars. according to scholars, the early cherokee placed no premium on the capture of enemies, and slaves were the product of wars waged chiefly for vengeance or to establish primacy in an area.38 as aboriginal slave captives gained economic value as a result of european demand for laborers, some tribes, including the cherokee, turned to market-based slavery. the growth of the practice of commodity-based slavery coincided with the decline in aboriginal slavery. by 1776, most cherokee traded almost exclusively in african-ancestored slaved rather than in aboriginal people.39 there are records of cherokee trading in and holding black slaves that date back to the eighteenth century.40 the cherokee, like some other indigenous american groups, were often explicitly cast as black slave traders and slave hunters by whites. this was seen, 32 frequently such histories served as a tool for rationalizing and legitimizing united states appropriation of aboriginal lands and displacement of aboriginal peoples. id. at 30. 33 see, e.g., tiya miles, the house on diamond hill: a cherokee plantation story (2010) [hereinafter miles, the house on diamond hill]. miles has suggested, however, that despite certain privileges, mixed-race whitecherokee people were nonetheless separated by racial caste and often by social norms from wealthy white southerners. id. at 21-22, 210; accord alexandra harmon, rich indians: native people and the problem of wealth in american history: native people and the problem of wealth 98-102 (2010). 34 theda perdue, cherokee women: gender and culture change, 1700-1835 126 (1998). perdue asserts that the growth of black agricultural labor was not a result of planning, but more a result of opportunity or happenstance. id. perdue also asserts that the growth of black slavery caused a disruption in the traditional roles of both cherokee men and women. men were hesitant to undertake farming as a livelihood because of its association with black slave labor. similarly, cherokee women, who often had direct responsibilities in the fields for crops such as corn, sometimes found their traditional roles compromised by the presence of black men in the fields. id. 35 miles, the house on diamond hill, supra note 33, at 167. 36 theda perdue, slavery and the evolution of cherokee society, 1540-1866, 4 (1979). 37 id. 38 id. 39 sturm, supra note 7, at 49 (citing perdue, slavery and the evolution of cherokee society, supra note 37, at 34). 40 miles, ties that bind, supra note 7, at 31. 2015 columbia journal of race and law 107 for instance, in the 1730 treaty of dover, between king george ii and a delegation of cherokee.41 around the time of this treaty, “slave catcher” became a common title for some cherokees.42 black slavery spread further as the cherokee adopted agrarian lifestyles.43 while some accounts suggest that the majority of cherokee never owned slaves, black slavery became a key source of wealth and status in the cherokee nation beginning in the early 1800s.44 since the people who set the pattern for acculturation among the cherokee were often white, the agricultural and social patterns of the united states south became the model for many cherokee.45 this included the use of slave labor in the farming of cash crops.46 many cherokee aspired to own slaves, and slaves became a source of inheritable wealth and a means of farming larger land holdings. 47 although some cherokee may have been more ambivalent about black slavery, the cherokee practice of was no less oppressive and far more complex than was seen among whites in the antebellum south.48 as the eighteenth century waned and cherokee had greater interaction with white slaveholders, their slaveholding practices came to more closely resemble those of whites. nonetheless, some accounts soften criticism of cherokee slaveholding by casting it as a rarely practiced and highly nuanced institution. one scholar has suggested that the “assistance rendered by the negro laborers” to the cherokee “must have been greatly appreciated,” making a master-slave relationship sound like friendly cooperation between neighbors.49 others have suggested that while blacks were enslaved by some cherokee, there was a bottom-up process whereby cherokee owners were enlightened by their black slaves and taught the finer points of western farming or animal husbandry.50 still other observers suggest that the institution of slavery among the cherokee was less cruel and that slaves suffered less than they might have under white slave owners.51 there is, however, relatively little evidence to support claims of the gentleness of black enslavement among the cherokee. cherokee and their slaves were often at odds, and slave escapes were common.52 although some scholars have sought to diminish the harshness of slavery among the cherokee, the fact is that black slaves were subjected to a wide range of treatment ranging from torture and death all the way to adoption in the tribe and fictive kinship.53 moreover, despite occasionally experiencing good treatment, black slaves among the cherokee were, for the most part, marked as persons of lower status. while social difference among the cherokee may not always have centered on skin color discourse, eventually black skin became and remains a potent source of outsider status. 41 id. (citing rudi halliburton, red over black: black slavery among the cherokee indians 8-9 (1977)). 42 id. see also perdue, slavery and the evolution of cherokee society, supra note 37, at 4. 43 henry thompson malone, cherokees of the old south, 141 (1956). 44 william gerald mcloughlin, cherokee renascence in the new republic 70-71 (1992). 45 id. 46 id. 47 id. at 71. 48 malone, supra note 44, at 141. 49 id. at 21. 50 see william g. mcloughlin, red indians, black slavery, and white racism: america's slaveholding indians, 34 am. q. 367 (1974) [hereinafter mcloughlin, red indians, black slavery]. mcloughlin quotes cherokee indian agent george m. butler, who stated in 1859: “i believe if every family of the wild roving tribes were to own a negro man and woman who would teach them to cultivate the soil . . . it would tend more to civilize them than any other plan that could be adopted.” id. at 375 n.11. 51 id. 52 in 1842 one of the largest slave escapes recorded among the cherokee occurred. the slave revolt started on november 15, 1842, when a group of 20 black slaves owned by the cherokee escaped and tried to reach mexico, where slavery had been abolished in 1836. though the escape ultimately failed, it spurred a number of other such slave escapes among the cherokee. see daniel f. littlefield & lonnie e. underhill, slave revolt in the cherokee nation, 1842, 3 am. indian q. 121, 126-127 (1977). 53 mcloughlin, red indians, black slavery, supra note 51, at 375 n.11. 108 cherokee freedmen and the color of belonging vol. 5.2 a. skin color discourse as the source of belonging the function of discourse is often highly dependent upon context. hence, understanding a term requires an analysis of the history of the particular use of a term as well as an understanding of its current contextual and temporal meanings and its interaction with both public and private meanings.54 there is sometimes a tension between the terms of a community's vocabulary and the narrative frame in which such terms are to be understood.55 this is all the more true in the case of words that have unique ideological commitments or meanings such as “black,” “red,” or “white” in the context of skin color belonging. 56 although black slavery among the cherokee grew continually over the course of the early nineteenth century, skin color as a discursive mechanism for framing belonging appeared relatively late in the development of cherokee political life.57 as was true with many early human societies, the cherokee did not perceive human differences in terms of physical appearance; rather, distinctions were more often based on family ties or on characteristics such as strength or intelligence. while there were references to “the red man” and “the black man” in certain cherokee cultural practices, cherokee references to themselves as “red” may have had more to do with cultural myths of their own origins and not to european perceptions of aboriginals as red people.58 the cherokee apparently used “red” self-referentially in a number of early contexts, but these contexts varied, and there were no fixed meanings.59 moreover, even given certain references to color, these references were apparently not meant to convey a sense of sovereignty or national belonging. cherokee did not early on in their history conceive of themselves as a political nation state, nor indeed as a specifically geo-political nation state, though territorial claims were crucial to their claims of sovereignty and nationhood. early cherokee political self-concept varied from eurocentric norms, and to some observers, what was most striking about pre-eighteenth century cherokee governance was the apparent absence of centralized governing systems.60 most government was organized at the municipal level, and several “mother towns” held authority over other towns or settlements. in earliest times, the mother towns served as headquarters for matrilineal clans, and intermarriage among clans was forbidden.61 within cherokee towns there were multiple governing groups who assumed authority under certain circumstances.62 however, a sea change in cherokee political organization and sovereign self-concept came with greater exposure to and intermarriage with whites. whiteness gained a positive discursive valence, and became a source of social, economic, and, perhaps most importantly, political power and legitimacy for many cherokee. b. whiteness and cherokee political legitimacy many changes were wrought as the cherokee struggled to gain mainstream legitimacy for their claims of nationhood. much of this change has been tied to the growth of intermarriage between cherokee and europeans dating back to early colonial times.63 the cherokee leadership class grew to include members of a 54 lolita buckner inniss, a critical legal rhetoric approach to in re african-american slave descendants litigation, 24 st. john's j.l. comm. 649, 667 (2010). 55 id. 56 id. at 649, 665-668. 57 early cherokee likely had no concept of color as an index of racial difference. sturm, supra note 7, at 45. 58 id. at 46. 59 id. (citing nancy shoemaker, how indians got to be red, 102 am. hist. rev. 625, 641 (1997). 60 malone, supra note 44, at 24. 61 id. at 25 62 id. at 25-26 63 rachel caroline eaton, john ross and the cherokee indians 19 (1914). 2015 columbia journal of race and law 109 close coterie of families who were of mixed white and red ancestry.64 although they still claimed cherokee membership via matrilineal ancestry, leaders were increasingly of majority white lineage. by the 1830s, persons of mixed ancestry such as john ridge,65 james vann,66 elias boudinot,67 and john ross68 were prominent in all aspects of cherokee politics. the ross family was especially prominent. john ross (1790-1866) was the patriarch of the cherokee rosses. ross served as principal chief of the cherokee from 1826 to 1866, and was one of the longest serving and most important cherokee political leaders of the nineteenth century.69 ross was the son of daniel ross, a white scottish trader, and mary “mollie” mcdonald ross, a member of the cherokee nation who was of mixed white and cherokee heritage.70 the rosses often mingled with the elite of united states society, and some of the rosses also attended the college 64 some mixed race red-white cherokee family names, besides ross and mcdonald, were adair, dougherty, vann, gunter, ward, and rogers. id. these names remain common among contemporary cherokee. some persons historically taking leadership roles or claiming cherokee nation membership pointed to no aboriginal ancestry at all. for example, john b. neeley, a member of the cherokee nation born in tennessee in 1846, asserted, “my people were all white, however, my grandmother was raised by the cherokee indians.” interview with john neely for the indian pioneer history project, (feb. 13, 1937), available online at http://www.okgenweb.org/pioneer/ohs/neeleyjohnb.html. even in more recent times, some persons claiming cherokee ties have also asserted that they were primarily or even uniquely of european ancestry. see thornton, supra note 5, at 196. 65 john ridge was born in 1802 to a cherokee father, major ridge, and a white mother, sarah bird northrup. ridge joined with his father major ridge, elias boudinot (a nephew of major ridge) and some other cherokee in the treaty party, which supported the removal of cherokee to western territories. the elder ridges and boudinot were all signatories to the treaty of new echota of 1835, by which they ceded cherokee lands east of the mississippi in exchange for lands in indian territory. the majority of the cherokee, along with then principal chief john ross, opposed the land cession, but the united states senate ratified the treaty. in 1839, after removal to indian territory, political opponents killed the elder ridges, boudinot, and other treaty party members for their roles in the land cession. james w. parins, john rollin ridge: his life and works 19-30 (2004). 66 james vann, born around 1768 to a cherokee mother and a scottish father, was believed at one point in the early 1800s to be the richest man in the cherokee nation, and possibly in the entire eastern u.s. at the time. miles, ties that bind, supra note 7, at 41. vann built diamond hill mansion, a two-story house constructed of brick in 1804, with access to the road, near present-day chatsworth, georgia. see miles, the house on diamond hill, supra note 33. 67 elias cornelius boudinot was born in 1802 to a cherokee father and a mixed cherokee and white mother. boudinot was born gallegina uwati. while in his early teens uwati met elias boudinot, the white united states politician and statesman, and was so impressed that he asked to adopt boudinot’s name. boudinot the cherokee was perhaps best known as was an editor of the cherokee phoenix, the cherokee nation's first newspaper, which was published in the cherokee language and english. james w. parins, elias cornelius boudinot: a life on the cherokee border 4 (2006). 68 for a discussion of john ross and some other members of the ross family, see infra notes 69-73. 69 gary e. moulton, john ross, cherokee chief 1-2 (1978). 70 john ross was only one eighth cherokee, and, according to one biographer, spoke cherokee haltingly and could not write the language. id at 2. ross’ cherokee ancestry apparently derived from one full-blooded cherokee greatgrandmother, ghigooie of the bird clan, who married a scot, william shorey. id.; see also george rosie, curious scotland: tales from a hidden history 111 (2004). 110 cherokee freedmen and the color of belonging vol. 5.2 of new jersey (now princeton university). 71 john ross and others set about to reorganize cherokee government along western, “civilized” norms.72 this included the creation of roads, schools, western-style laws, and the broadening of black slavery.73 john ross himself was said to have owned more than one hundred slaves.74 while whites did not sanction all marriages between whites and cherokees,75 much intermixing was noted with approval by some white observers. as one historian wrote of intermarriage between cherokees and whites: “the cherokees married more freely with the whites than did the other tribes, and with exceptional results.”76 one scholar has even used the phrase “sexual assimilation” to describe this process of whitecherokee intermarriage and ultimate race mixing.77 cherokee use of the word “red” in a racial sense became more fixed, as the tribe adopted euro-american notions of color as indicative of racial difference and racial hierarchy.78 the red cherokee became a race in contrast to white europeans and black african-ancestored people. whiteness came to be seen as a premium trait, and this was seen in the proliferation of white-cherokee unions, and in the growth of an elite mixed-race upper class. some commentaries have argued that cherokee also formed black-red social alliances with their 71 although princeton, unlike several other colleges, did not have an explicit mission to educate native americans, some aboriginal people attended princeton in the nineteenth century, including several cherokee rosses: john mcdonald ross, class of 1841; william potter ross, class of 1842 and later principal chief of the cherokee nation; robert daniel ross, class of 1843; silas d. ross, class of 1849; and george w. ross, class of 1850. there were also two members of the vann family who attended in the 1850’s, cooey vann and clem l. (or clement) vann. see princeton university undergraduate alumni index, 1748 1920, princeton university seeley g. mudd manuscript library, http://www.princeton.edu/~mudd/databases/alumni.html (search each name and class year) (last viewed march 14, 2015). see also marcia graham synnott, the half opened door 176 (1979) (discussing the limited presence of native americans and non-protestant whites at princeton in the nineteenth century and the overall “academic nativism” that thrived in elite american colleges during the this period). in contrast, students of known african ancestry were not regularly admitted to princeton until some one hundred years later in the 1940s. id. tragically and perhaps ironically, many members of the families of these cherokee students completed a move to western united states territory during 1830’s when some of the younger rosses were away in the northeast at school. these families took their slaves with them. before some of the rosses returned home there occurred one of the largest revolts among the cherokee, the 1842 slave revolt in the cherokee nation. see infra note 52. 72 eaton, supra note 63, at 6 (describing how ross “began at an early age not only to be interested in the development of the cherokees into the greatest nation of civilized indians, but to have a vital part in that development”). 73 id. though john ross personally owned slaves, he moved away from publicly supporting the practice of slavery towards the end of his life as it became evident that the confederacy stood little change in the civil war. ross’ desire for cherokee distance from supporting slavery and the confederacy became the source of a major rift among the cherokee and lead to ross’ exile. perdue, slavery and the evolution of cherokee society, supra note 37, at 129-130. apparently unable to convince other cherokee leaders to remain neutral and fearing a political coup by pro-slavery, proconfederacy cherokee, ross entered into a treaty to support the confederacy. see duane h. king, cherokee in the west: history since 1776, in 14 handbook of north am. indians 363-364 (raymond fogelson & william sturtevant eds., 2004). 74 rennard strickland, fire and the spirits: cherokee law from clan to court 80 (1982). 75 see generally theresa strouth gaul, ed., the marriage of harriett gold and elias boudinot in letters, 1823-1839 (2005) (chronicling the engagement and marriage of cherokee elias boudinot and white woman harriet gold, and the opposition of gold’s family to the match). gaul notes that while she was able to trace the gold family’s position on the marriage via letters, she was unable to recover letters from boudinot describing his position on the marriage. id. at 3. 76 edwin starr, early history of the cherokees: embracing aboriginal customs, religion, laws, folklore, and civilization 96 (1917). 77 carla d. pratt, loving indian style: maintaining racial caste and tribal sovereignty through sexual assimilation 2007 wisc. l. rev 409, 441-447 (2007). pratt uses the phrase “sexual assimilation” to describe the sexual relationships (including marital relations) between whites and native americans that resulted in whiter, more socially assimilable offspring. id. 78 id. see also william t. hagan, full blood, mixed blood, generic, and ersatz: the problem of indian identity, in mixed race america and the law 137-52 (kevin r. johnson ed. 2003). 2015 columbia journal of race and law 111 african-ancestored slaves, and, in doing so, resisted some of the most oppressive legal and social norms wielded by whites against black slaves.79 it has been suggested that the cherokee and their black slaves experienced an ever-converging marginality during the antebellum years, and that they formed implicit, if not explicit, social, economic, and even political alliances. this rapprochement, according to some, led to the creation of a liminal space in which there was a dislocation of established practices of color discrimination. in this space there was an almost democratic camaraderie, with african-ancestored slaves and their cherokee masters sharing the same precarious social position, thus allowing for political solidarity and cultural exchange.80 in this regard, some scholars point to the formation of mixed-race red, black, and white peoples, termed “tri-racial isolates,” as evidence of a fluid, amalgamated relationship between the three groups. however, as other scholars have observed, the history of racially ambiguous people who were not exclusively one color only suggests that intermediate and hybrid racial statuses were precarious.81 in the words of one observer: “the hallmark of racial oppression is the reduction of all members of the oppressed group to one undifferentiated social status, beneath that of any member of the oppressor group.”82 in keeping with this, any racial intermixing that did occur among the cherokee more often gave rise to the subordination of the next lower group, and heightened pressure on all individuals to perform whiteness in order to maintain community standing.83 by the mid-nineteenth century, the red and white races became closely aligned and intermingled within the cherokee nation. perhaps of greater portent, however, blacks remained apart, and the indian members of the cherokee nation stood in stark contrast to black, non-member slaves. the cultural, social, economic, and racial hybridization of red and white people, as well as the simultaneous rejection and estrangement of black people and people of mixed red and black identity served as the crux of the popular formation of cherokee national identity. blacks, already famously inassimilable in mainstream white western culture, ultimately faced a similar fate in the cherokee nation.84 skin color hierarchies were ultimately incorporated not only in cherokee social norms but also in legal and political institutions. c. cherokee constitutional norms, color, and citizenship in an effort to gain and sustain political and social legitimacy, the cherokee adopted many “western” concepts of justice, freedom, and the rule of law within a set of constitutional norms. in this regard, it has 79 bethany r. berger, "power over this unfortunate race": race, politics and indian law in united states v. rogers, 45 wm. & mary l. rev. 1957, 2024 (2004) (“despite these apparently race-based distinctions, political alliances and attitudes do not appear to have turned on racial grounds in the same way they did for white americans. . . . [r]epressive slave laws were apparently not enforced because of widespread resistance to their principles, and some black children attended school alongside cherokee children.”). 80 ariella gross, "of portuguese origin": litigating identity and citizenship among the "little races" in nineteenth-century america, 25 law & hist. rev. 467, 473 (2007). 81 id. at 474 (“the persistence of these racially ambiguous communities challenges the notion of the u.s. as a binary racial system, but it also undermines the naive belief that the mixing of races will eliminate racial hierarchy or injustice. indeed, the histories of these in-between peoples suggest that intermediate and hybrid statuses were precarious, bred the tendency to subordinate the next lower group, and increased the pressure on all individuals to perform whiteness in order to maintain one's place in a community.”). 82 allen, supra note 10, at 177. subordination by one non-white group of others has been seen in many other contexts, such as in the subordination of indians and blacks by mexican elites in pre-statehood new mexico. see, e.g., laura e. gómez, off-white in an age of white supremacy: mexican elites and the rights of indians and blacks in nineteenth-century new mexico, in colored men and hombres aquí: hernández v. texas and the emergence of mexican american lawyering 1, 25 (michael a. olivas ed. 2006). 83 gross, supra note 81, at 473. gross observes that the only tri-racial group to continually insist on their black heritage, the narragansett, suffered loss of tribal status and near-extinction as an indian nation. the narragansett ultimately won a land claim settlement from the state of rhode island in 1978 and federal recognition as a tribe in 1983. id. 84 for a discussion of the notion that black people are akin to permanent immigrants in the united states because of their inability to be fully assimilated, see lolita k. buckner inniss, tricky magic: blacks as immigrants and the paradox of foreignness, 49 depaul l. rev. 88-90 (1999). 112 cherokee freedmen and the color of belonging vol. 5.2 frequently been suggested that the 1827 cherokee constitution was modeled in large part of the united states constitution.85 though acculturation was one goal of establishing a written constitution, the 1827 cherokee constitution was also part of an effort to forestall dispossession by asserting a nationhood and sovereignty similar to that of the united states.86 by the turn of the nineteenth century, the cherokee, along with other aboriginal groups living in georgia, were facing a concerted effort to remove them from their lands within the state.87 the 1827 cherokee constitution contained twenty-four articles. it was similar to the united states’ constitution in that it provided for three branches of national government: legislative, executive and judicial.88 the 1827 cherokee constitution, however, in keeping with concerns about land retention, began with an articulation of the cherokee nation’s then-extant physical boundaries in article i.89 another substantial distinction between the 1827 cherokee constitution and the united states constitution was that the cherokee constitution explicitly denied political rights to blacks or african-ancestored people.90 any descendant of a black person was, for example, ineligible to hold any “office of honor, profit, or trust” in the cherokee government.91 within this same document, children of non-black women and cherokee men were granted tribal membership.92 because of the cherokee matrilineal clan system, there was no corresponding need for legislation granting the descendants of cherokee women and white men citizenship in the tribe; such persons 85 the first cherokee constitution was drafted on july 4, 1827. mcloughlin, cherokee renascence in the new republic, supra note 44, at 396. (“the draft of the constitution was obviously designed as the capstone of cherokee nationalism and of the cherokee renascence — a cherokee version of the american constitution to meet cherokee needs.”). see also amy h. sturgis, the trail of tears and indian removal 70-71 (2007). 86 daniel heath justice, our fire survives the storm: a cherokee literary history 75 (2006). for much of its early history, cherokee territory spread throughout the southeastern central united states, encompassing parts of what is now north carolina, south carolina, georgia, alabama, virginia, kentucky and tennessee. douglas c. wilms, cherokee land use in georgia before removal, in cherokee removal: before and after 1, 20 (william l. anderson ed., 1992). however, as a result of land session treaties during the eighteenth century, by beginning of the nineteenth century, cherokee land was reduced to a far smaller area. id. 87 the empire state of the south: georgia history documents and articles 72 (christopher c. meyers ed., 2008). 88 1827 constitution of the cherokee nation, art. ii, available online at http://www.tn.gov/tsla/founding_docs/33638_transcript.pdf. however, although the 1827 cherokee constitution, like the united states constitution, articulated a separation of powers provision that gave autonomy to the three branches, a significant difference was that the legislative branch of the cherokee government elected the heads of the executive branch. 1827 constitution of the cherokee nation, art. iii, §§ 23, 25. 89 1827 constitution of the cherokee nation, art. i (“the boundaries of this nation embracing the lands solemnly guaranteed and reserved forever to the cherokee nation by the treaties concluded with the united states is as follows, and which shall forever hereafter remain unalterably the same . . . .”). 90 for a historical analysis of cherokee miscegenation law, see fay yarbrough, legislating women's sexuality: cherokee marriage laws in the nineteenth century, 38 j. soc. hist. 385 (2004). for a more general analysis of tribal miscegenation laws and indian-black race mixing, see erik march zissu, blood matters: five civilized tribes and the search of unity in the 20th century 46-50 (2014); peggy pascoe, what comes naturally: miscegenation law and the making of race in america 21-23; 63 (2009); thomas n. ingersoll, to intermix with our white brothers: indian mixed bloods in the united states from the earliest times to the indian removals 241-242 (2005). 91 1827 constitution of the cherokee nation, art. iii, § 3 provided that no person shall be eligible to a seat in the general council but a free cherokee male citizen who shall have attained to the age of twenty five years the descendants of cherokee men by all free women (except the african race) whose parents may be or may have been living together as man and wife according to the customs & laws of this nation & shall be entitled to all the rights and privileges of this nation, as well as the posterity of cherokee woman by all freemen, no person who is of a negro or mulato parentage either by the father or mother side, shall be eligible to hold any office of profit or honor or trust under this government. 92 id. 2015 columbia journal of race and law 113 were already identified as cherokee.93 ironically, the creation of the 1827 constitution heightened white resistance to cherokee nationhood.94 the 1827 constitution is viewed as the cherokee nation’s founding formal document. however, the removal of the cherokee to indian territory caused substantial political breaches between those who advocated for voluntary departure and those who were forcibly removed.95 as a result, a new constitution was forged in 1839 to address some of the deep-seated political enmity between different cherokee factions.96 the 1839 constitution retained the prohibitions on blacks and african-ancestored persons holding office,97 but it seemed to allow such persons to vote.98 in contrast to the cherokee constitution, the united states constitution, though proslavery in much of its outlook, never once mentions slaves, slavery, or africans.99 while the cherokee constitution of 1827 was a milestone in the formalization of the existence of the nation, it also formalized and enshrined black political inferiority. it is difficult to avoid viewing the creation of anti-black legal norms as an event of immense cultural, political, and social significance. the 1827 constitution represented the codification of cherokee political and social life, and this reorganization occurred without any explicit external, imperial intervention.100 in the 1827 cherokee constitution, it was ambiguous whether the exclusion of african-ancestored people from membership in the political community was aspirational or an actual representation of cherokee social and political life. in either case, the first drafting of a cherokee constitution can be interpreted as part of a mimetic, assimilative, and authoritative process that privileged one race over another. this process is, as one scholar has described it, a process of mimicry that is emblematic of colonialism, one that is constructed around a complex strategy of reform, regulation and discipline that instills mainstream norms all while appropriating the other.101 by drafting laws that limited the rights of blacks, the cherokee implemented the same flawed practices that came to so bedevil of the american republic. while native american tribes may, in some respects, “use tribal sovereignty to preserve their differentness—even when tribal laws are seemingly inapposite to american 93 sturm, supra note 7, at 31 (citing sarah hill, weaning new worlds: southeastern cherokee women and their basketry 27 (1997)). other writers addressing more broadly the norms of women’s roles in other native american groups have observed that, historically in many north american indian tribes, women enjoyed equal rights with men. some tribes were, early in their histories, entirely woman-centered. see robert h. lowie, indians of the plains 96-97 (1954) (discussing the crow, hidatsa, mandan, and pawnee tribes). other matrilineal tribes included the iroquois, siouan, mohegan, delaware, powhatan, creek, choctaw, chickasaw, seminole, caddoan linguistic family, pawnee, hidatsa, mandan, oto, missouri, crow, navajo, hopi, laguna, acoma, and zuni tribes. john u. terrell & donna m. terrell, indian women of the western morning: their life in early america 28-29 (1974). see also clara sue kidwell, women’s leadership in the development of american indian studies, in 1 gender and women's leadership: a reference handbook, 610 (karen o’connor ed., 2010). 94 jill norgren, the cherokee cases: two landmark federal decisions in the fight for sovereignty 43 (2004). many georgians feared that the new constitution signaled the sort of assimilation and acculturation that might make it possible the cherokee to defend against the state of georgia’s efforts to seize cherokee lands. id.; see also rennard strickland, fire and the spirits: cherokee law from clan to court 65-67 (1976). 95 celia e. naylor, african cherokees in indian territory: from chattel to citizens 245 n.3 (2008). 96 1839 constitution of the cherokee nation, available online at http://www.cherokeeobserver.org/issues/1839constitution.html. 97 1839 constitution of the cherokee nation, art. iii, § 5. 98 1839 constitution of the cherokee nation, art. ii, § 7. 99 see george william van cleve, a slaveholders' union: slavery, politics, and the constitution in the early american republic 2-13 (2010) (arguing that constitutional provisions protecting slavery were beyond political compromises and were instead integral to the principles of the new nation). 100 michael ignatieff, blood and belonging 12 (1995) (discussing the collapse of the soviet empire and the communist regime as examples of great national re-orderings and the absence of an external, explicitly political actor to spur the change). 101 homi k. bhabha, the location of culture 86 (1994). 114 cherokee freedmen and the color of belonging vol. 5.2 civil rights norms,” this puts aboriginal people at odds with contemporary norms of good governance.102 efforts at formal sovereign and civic definitions, as evidenced by the 1827 and the 1839 constitutions, emerged simultaneously with a substantial diminution in cherokee sovereign territory. this dual process of gain and loss depicted an all too common experience of learning “how to recognize the impossibility of belonging to a place yet claim one’s presence in it; of how to strive and yearn for emplacement yet live in a world in which rights and ideals were constantly thwarted.”103 cherokee efforts to address their losses through political alignment with pro-slavery and confederate forces in the decades after their removal only yielded greater losses. the cherokee, having for the most part allied themselves with a vanquished enemy, were punished by united states government seizure of some of their lands and the abrogation of some treaties.104 land was not the only thing lost; as was true in the confederacy and in other slaveholding parts of the country, slavery was declared at an end among the cherokee. iv. cherokee freedmen emancipation and its aftermath slavery among the cherokee ended at approximately the same time that slavery ended in the rest of the united states.105 though slavery ended, the contentious relationship between some cherokee slave masters and their slaves survived emancipation and became an article of post-war life among the cherokee. this hostility persists largely because the descendants of cherokee slaves have frequently been excluded as members of the tribe, and have fought their exclusion over the course of the last two hundred years. in 1863 the cherokee voted to end slavery. an 1866 cherokee nation treaty resulted in recognizing the citizenship of former black slaves held by blooded members of the cherokee nation.106 it was estimated that the cherokee nation officially recognized over 20,000 persons of african ancestry, known as the cherokee freedmen, after the 1866 treaty. after the enactment of the treaty, freedmen were allowed to vote and serve on juries in the nation. 107 however, the letter of the law was not always followed, and many freedmen had difficulty in exercising their newly granted rights. persons of african ancestry were frequently denied membership in the cherokee nation, despite the fact that some could trace ancestry to the dawes roll, a list of cherokee by blood, intermarriage, adoption, or former slave status drawn up by federal officials at the end of the nineteenth century.108 the dawes commission, the principal author of the list, and tribal members “used the tribal custom of matrilineal families to justify excluding the overwhelming majority of freed slaves with indian blood from the blood rolls.”109 a key reason for the roll was to allocate tribal property.110 in some cases allegations have 102 angela r. riley, good (native) governance, 107 colum. l. rev. 1049, 1051-1052 (2007). 103 simon gikandi, slavery and the culture of taste 235 (2011). 104 william t. hagan, taking indian lands: the cherokee (jerome) commission, 1889–1893 7-10 (2012). 105 william g. mcloughlin, after the trail of tears: the cherokees' struggle for sovereignty, 18391880 208 (1994). the cherokee passed an act emancipating all slaves in the nation as of june 25, 1863. id. 106 treaty with the cherokee, u.s.-cherokee, july 19, 1866, art. 4, 14 stat. 799. 107 katjia may, african americans and native americans in the creek and cherokee nations, 1830s to 1920s: collusion and collusion 71 (1996). 108 though governmental attempts to define “indianness” were seen even in colonial times, the first formal attempts to do so began in the late nineteenth century with the 1887 dawes severalty act, also known as the general allotment act. 24 stat. 388 (1887). a key goal of the act was to distribute reservation lands. the dawes act established the first general government program for the division of reservation land into individual allotments. the dawes act continues to play a major role in aboriginal tribal membership. “currently, only those persons who can demonstrate an ancestral connection to the native americans listed on the ‘blood roll’ can claim full tribal membership and all of the rights and privileges that flow from such membership.” pratt, tribes and tribulations, supra note 1, at 72 (citing rennard strickland, the genocidal premise in native american law and policy: exorcising aboriginal ghosts 1 j. gender race & just. 325, 330 (1998)). 109 pratt, contemporary racial realities, supra note 8, at 1250. 110 sturm, supra note 7, at 80-81; littlefield, supra note 7, at 239; miles, the house on diamond hill, supra note 33, at 194-195. 2015 columbia journal of race and law 115 been made that some ostensibly white persons were added to the rolls that had either miniscule or no aboriginal blood at all.111 however, some scholars have suggested that not all cherokee freedmen suffered in their relations with their former cherokee masters. for example, one scholar concluded, using data from the 1880 cherokee nation census, that the racial gap in land ownership was smaller in the cherokee nation than existed among southern black farmers outside of the cherokee nation.112 however, it is still largely the case that historic conceptions of race among the cherokee remain at the foundation of contemporary notions of race.113 in the decades since emancipation, cherokee freedmen have employed litigation in their fight to end exclusion and to gain full membership in the cherokee nation. one such suit was successful; a march 2006 ruling by the cherokee nation supreme court held that the 1866 treaty assured descendants of freedmen tribal citizenship. however, this decision of the cherokee nation supreme court and the subsequent enrollment of african-ancestored persons led to a march 2007 referendum vote in which the cherokee nation, one of the largest of the federally recognized aboriginal tribes in the united states, voted to withdraw membership for persons descended from cherokee freedmen. the freedmen sued and received reinstatement in the cherokee district court. that decision was appealed, however, and recently, the cherokee supreme court upheld the results of the referendum ousting the freedmen.114 the recent actions to expel cherokee freedmen have caused dismay in some parts of the african american and the north american aboriginal communities, as the actions seem to suggest that the practice of race and color based discrimination against blacks in the united states is not limited to those of european ancestry. the actions have also acted as a rather rude awakening to a number of african americans who had celebrated their cherokee ancestry for generations with little knowledge of the fact (or ignoring the fact) that such ancestry may have originated when their ancestors were slaves of the cherokee. while the right to selfdetermination is an acknowledged attribute of a sovereign people, it comes at the cost of expelling many persons who have longstanding cultural and often genetic ties to the tribe.115 supporters of the cherokee right to expel freedmen have used a number of intriguing if not entirely apt analogies to justify the act. one suggestion is that if cherokee were forced to admit to national membership anyone who wished to join, it might lead to “negative” reactions by non-aboriginal people who would be disturbed at the growth in aboriginal sovereign power versus state governments.116 while the growth of the cherokee nation and an associated growth in their political power might trouble some, this sort of “what will the neighbors say?” rationale for foreclosing the possibility of action has rarely held sway in the shaping of modern legal and political norms. legal sovereignty frequently must give way to political sovereignty, the groundswell of influence that begins from the bottom up and often includes even persons that legal sovereigns may wish to exclude. increasingly, sovereignty claims for aboriginal peoples have not only national but global consequences.117 contemporary scholars often frame sovereignty as a notion that is disaggregated from 111 pratt, contemporary racial realities, supra note 8, at 1253 (citing kent carter, the dawes commission and the allotment of the five civilized tribes, 1893-1914 51, 73-74 (1999)). 112 see melinda c. miller, essays on race and the persistence of economic inequality 1–3 (2008) (unpublished ph.d. dissertation, university of michigan) (on file with author). moreover, there is some evidence that black farmers in the cherokee nation on average owned farms that were closer in size to those of non-black farmers and had higher absolute levels of wealth and income than southern black farmers. id. at 3. 113 yarbrough, race and the cherokee nation, supra note 7, at 128 (2007) (“nineteenth-century conceptions of race, identity, and gender are not dead and forgotten in the twenty-first century . . . cherokee freedmen remain unable to access political rights and economic benefits . . . .”). 114 on august 22, 2011, the supreme court of the cherokee nation issued its decision in the matter of the cherokee nation registrar v. nash, sc-2011-02. in reversing an earlier decision of the cherokee district court as well as a temporary injunction that maintained the membership of the freedmen, the supreme court stripped about 2,800 african-american descendants of cherokee-owned slaves of citizenship. 115 yarbrough, race and the cherokee nation, supra note 113. 116 singer, tribal sovereignty and human rights, supra note 8, at 308. 117 as one scholar has noted: 116 cherokee freedmen and the color of belonging vol. 5.2 traditional, fixed geographical borders and territories and is instead rooted in basic democratic arrangements between and among people.118 moreover, as one scholar has observed, cultural and even political survival for many native american tribes may depend upon eliminating race as a criterion for tribal membership.119 this is all the more true where culture and custom rather than quantum of blood may make such persons more “indian” than others.120 the assertions that decisions on native american belonging are political but not racial fail in the light of contemporary human rights views of civic membership.121 another suggestion has likened the cherokee rejection of freedmen who had previously been deemed members to a case wherein biological parents change their minds about adoption.122 this analogy, too, fails to support disenrollment of the freedmen. first, while there are a number of cases wherein adoptive parents change their minds about adoption and depend on courts to undo the parental relationship, courts are typically reluctant to sever family ties.123 perhaps for this reason, adoptions are rescinded after finalization at a relatively low rate.124 next, the applicable legal standard that courts use when an adoptive parent seeks to rescind an adoption is the “best interests of the child” standard.125 this immediately distinguishes cherokee desire to “rescind” adopted cherokee freedmen from the case of an adoptive parent who wishes to rescind an adoption. tribes now and in the next century will have to think strategically about where they want their place to be relative to other economic and political players, and they will have to be mindful that all decisions made in the exercise of sovereignty will impact how others will affirm or reject those claims to sovereignty. . . . but tribes must also look to the very narrative they are telling themselves, and the perception that narrative creates for those who are watching. that narrative has been one of difference. for approximately 175 years, the united states has thought of indians as a purely domestic matter, and tribal citizens and tribal governments, for the most part, bought into this narrative: american indian tribes and tribal governments are so unique, so different from indigenous peoples in other countries, so different than other sovereigns around the globe, that they exist alone on a conceptual space as a tribal government within the united states. part of this is a survival narrative, both cultural and political, but it can also be counterproductive when advancing a case for sovereign recognition.” leeds & shirl, whose sovereignty? tribal citizenship, federal indian law, and globalization, supra note 8, at 94. 118 see hernandez-tryol, globalized citizenship, supra note 11, at 1028. 119 l. scott gould, mixing bodies and beliefs: the predicament of tribes, 101 colum. l. rev. 702, 710, 711 (2001). 120 there are frequently differences in the social and cultural expression of “race” within designated racial groups, and these differences may be mapped intraracially along a spectrum of perceived racial “types” and not simply based on their racial group membership. devon w. carbado, intraracial diversity, 60 ucla l. rev. 1130, 1131 (2013) (discussing the use of intraracial diversity markers in affirmative action in higher education admissions). carbado notes: “motivating the theory of racial types is the notion that all of us at least implicitly racially judge others not only on whether we perceive them to be members of a cognizable group but also on how closely we perceive them to be associated with that group.” id. at 1135 (citing devon w. carbado & mitu gulati, the fifth black woman, 11 j. contemp. legal issues 701 (2001); devon w. carbado & mitu gulati, the law and economics of critical race theory, 112 yale l.j. 1757 (2003)). what is perhaps more controversial is the notion that there may be preferred models within any particular racial group and these models may be abused to foster one particular “ideal” racial representative to the exclusion of all others. see, e.g., lolita k. buckner inniss, bicentennial man the new millennium assimilationism and the foreigner among us, 54 rutgers l. rev. 1101, 1115-16 (2002). 121 in morton v. mancari, the united states supreme court held that an employment preference for indians in the federal bureau of indian affairs to be "political rather than racial in nature, finding that the category “indian” was premised upon an individual’s membership in a federally recognized indian tribe, not on their ancestry. 417 u.s. 535, 553 n.24 (1974). mancari is frequently cited for the proposition that “indian” is a political and not racial category. for a fuller discussion of the impact of mancari, see generally addie c. rolnick, the promise of mancari: indian political rights as racial remedy, 86 n.y.u. l. rev. 958 (2011). 122 id. 123 see, e.g., in re adoption of t.b., 622 n.e.2d 921, 924 (ind. 1993) (“public policy disfavors a revocation of an adoption because an adoption is intended to bring a parent and child together in a permanent relationship . . . .”). 124 cynthia godsoe, parsing parenthood, 17 lewis & clark l. rev. 113, 160-161 (2013). 125 see, e.g., tex. fam. code ann. § 161.005(a) (vernon 2007) (“a parent may file a suit for termination of the petitioner's parent-child relationship. the court may order termination if termination is in the best interest of the child.”); in re mcduffee, 352 s.w.2d 23, 28 (mo. 1961). 2015 columbia journal of race and law 117 the best interest of the child standard is, by its terms, child-focused. if this standard prevailed in the analogized case of cherokee freedmen and their cherokee “parents,” then the interests of the freedmen would take precedence. yet another analogy defending the cherokee exclusion of freedmen compares blacks freed by white southerners to those freed by the cherokee, noting that when blacks were generally emancipated, “they were not adopted by their former slave owners--even when those owners were their biological fathers.”126 this is similar to the rescinded adoption analogy, with the distinction that if the “parent” slaveholder had never agreed to enter into the parental relationship, they could not later be compelled to do so. however, this also fails as an analogy to the cherokee-freedmen dispute. it is true that society has increasingly committed itself to greater autonomy in shaping family relationships and to understanding “family” as more of a social than biological construction.127 society has at the same time, however, become more knowledgeable about and concerned with the genetic correlates of familial relationships.128 blood relationships remain crucial to our current understanding of family. this is all the more true in the era of easily accessible genetic testing. science can now bear technological witness to what used to be a matter of speculation or of convenient legal fiction.129 if the mixed-race offspring of white slaveholders were not acknowledged as kin by their enslaving parents, it is because neither law nor society recognized such claims and science was inadequate to prove the biological ties. the past choice to ignore black-white kinship and earlier scientific insufficiency cannot be the basis for ignoring the black-red kinship claims of contemporary cherokee freedmen with genetic ties to the cherokee. to continue to ignore ties of custom and blood creates not only injustice, but also deep psychic harm to those ignored.130 finally, arguments creating analogies between cherokee sovereign power to shape belonging and family structural choices fail chiefly because of the way in which such analogies render an external, collective, and public issue such as membership in a national entity into an internal, personal, and ultimately private familial dispute. even if the question of tribal membership were an uncomplicated matter of public versus private, such a binary distinction is not neutral because it does not apply equally to everyone (as it sometimes claims to do).131 this commonly accepted dichotomy, once uncovered, is often at the foundation of certain inequalities and may have an exclusionary effect. this is true even in the contemporary context where “private” has come to have meanings including the individual, civil society, and market relations and where “public” often refers to the collective or the state.132 increasingly, even many indigenous groups are adopting a human rights model of sovereignty, one that “transcend[s] the state-centric model that often excludes other groups meriting legal and political attention on the world stage.”133 126 singer, tribal sovereignty and human rights, supra note 8, at 308. 127 barbara katz-rothman, recreating motherhood 82 (2000). according to katz-rothman, “parenting is a social relationship, not a genetic connection.” id. 128 janet l. dolgin, biological evaluations: blood, genes, and family, 41 akron l. rev. 347, 348 (2008). 129 there are often statutory and common law presumptions operating in regarding the paternity of a child where the parents are married to each other during conception. there is not, however, a single national standard, and the united states supreme court has upheld the states’ right to establish differing standards of paternity. trimble v. gordon, 430 u.s. 762 (1977). 130 see pratt, tribes and tribulations, supra note 1, at 72 (2005) (“the injury felt by those persons of dual heritage is in part psychological. it is similar to the injury that a child born out-of-wedlock feels when not recognized by his father.”). 131 the public-private divide apparently grows from the rise of nation-states and concerns with the rights of the individual versus the state. the notion of a public-private distinction is closely tied to natural rights theories that privilege certain realms of human activity. see morton j. horwitz, the history of the public/private distinction, 130 u. pa. l. rev. 1423 (1982); see also jeff weintraub, the theory and politics of the public/private distinction, in public and private in thought and practice: perspectives on a grand dichotomy (jeff weintraub & krishan kumar eds., 1997). for a discussion of the public-private distinction in the context of black rights, see robert westley, bridging the public/private law divide in african-american reparations discourse, 55 rutgers l. rev. 301 (2003). 132 weintraub, supra note 135, at iv. 133 kristen a. carpenter & angela r. riley, indigenous peoples and the jurisgenerative moment in human rights, 102 calif. l. rev. 173, 177 (2014). 118 cherokee freedmen and the color of belonging vol. 5.2 v. conclusion: the end of an era but not the end of color based claims to belonging it is important to note that some historic cherokee laws and norms, while in many respects imitating white american constitutional and legal norms, still maintained and valorized the sense of being uniquely cherokee. in this sense, cherokee legal norms, even those promoting red and white superiority, did not always reproduce typical white racial hierarchies. cherokee laws are infused with a unique national character capable of producing and reproducing tribal cultural identity. however, it cannot be denied that under the 1827 and 1839 cherokee constitutions, only red and white persons were capable of contributing to this national character and ethos. black inequality among the cherokee, and especially the acknowledgement and codification of racial inequality in the cherokee constitutions, exposed the essential instability of the categorization of the other in american law and society. despite a large body of scholarship on the topic of relations between black, red, and white peoples, it is difficult to write about the racial groups here without possibly engendering the irritation of readers of all backgrounds who would rather forget, diminish, or deny the existence and continued relevance of black slavery among the cherokee. in some ways, denial of the past is understandable, whether due to the guilt of descendants of enslavers or to the embarrassment of descendants of the enslaved who would rather embrace the myth of a free and proud hybrid black-indian past.134 such responses may also be attributable to the desire by cherokee nationalists to avoid “distractions” from the other contemporary problems facing the cherokee nation and other aboriginal people. this “desire to disremember”135 is a distressing aspect of a shared black and red past that is often emblematic of larger projects in silencing or obscuring painful issues of history and identity.136 through the power inscribed in the nation-building process and the constitutional process, the contemporary cherokee battle for sovereignty has become a potent site for the reification of longstanding myths and ideologies about the distinctions between black, red and white peoples. as had been true in the slaveholding white south, slaveholding among the cherokee was intertwined with notions of national character and sovereignty.137 in the context of the cherokee freedmen, assertions about cherokee sovereignty betray a phenomenon of power that is in significant respects premised on a skin color-based construction of cherokee belonging. 134 some members of my mother’s family are examples of african-ancestored people who lay claim to an ambiguous cherokee past. generations ago many of my mother’s maternal ancestors lived in parts of arkansas and oklahoma among cherokee and other aboriginal people. their surname, ragsdale, is one that is common among both cherokee freedmen and cherokee by blood, potentially hinting not only at past enslavement and but also at cherokee consanguinity. see barbara krauthamer, black slaves, indian masters: slavery, emancipation, and citizenship in the native american south 72 (2013) (discussing the presence among the choctaw and chickasaw of blacks and mixed indian and black persons with the same last names as well-placed choctaws and chickasaw). answers have eluded my family partly because of the general difficulty of doing african-ancestored united states genealogy. one substantial barrier is that african-ancestored people were not widely enumerated by name until the 1870 decennial census; thus, those researching black ancestry commonly refer to 1870 as the genealogical “wall.” see, e.g., dorothy roberts, fatal invention: how science, politics, and big business re-create race in the twenty-first century 230 (2011) (“[b]lacks in the united states who have tried to reconstruct their family trees with conventional genealogical tools almost always meet a brick wall erected by the slave trade. with the right genealogical tools, most african americans can trace at least one side of their family to the 1870 federal census taken after the civil war, the first to list blacks as citizens rather than property”). but answers may have also eluded us because of a will to forget in those of us who knew the truth, thereby avoiding or evading the very real possibility that our ancestors were either the unacknowledged biological offspring of cherokee and/or were slaves of the cherokee. 135 miles, ties that bind, supra note 7, at xiv. 136 id. at xiv-xv. 137 id. at 5. microsoft word cjrl_rogers_final.docx providing broader sixth amendment protections: we can afford to give indigent defendants more shane k. rogers0f * though the framers intended for the sixth amendment to secure criminal defendants’ right to a fair trial by providing them with the right to effective assistance of counsel, the full right to effective assistance of counsel is not currently guaranteed. a recent sixth circuit case, turner v. united states, held that a defendant does not have the right to effective assistance of counsel until the right to counsel attaches. this is troubling given that in turner, the defendant, john turner, received a sentence ten years greater than the sentence he would have received but for his state counsel’s ineffectiveness. the sixth circuit rejected turner’s ineffective assistance of counsel claim because under current jurisprudence, the right to counsel has a bright-line rule: it does not attach until an indictment is brought or the defendant is brought before a judge. turner’s attorney for his state case negotiated a plea deal with federal prosecutors before a federal indictment was brought, and therefore, the right to counsel did not attach in the federal case. thus, turner did not have the right to effective assistance of counsel. this tension between ineffective assistance of counsel and when the right to such counsel attaches is striking: it deprives criminal defendants of a sixth amendment right. courts can resolve this tension, however, by recognizing that (1) effective assistance of counsel is an independent sixth amendment right; (2) the right to counsel raises different administrative and fairness concerns than effective assistance of counsel; and (3) courts apply the different strands of the sixth amendment independently, differently, and respective of the concerns the particular case raises. furthermore, courts should promptly resolve this tension because the racial disparity in outcomes indicates that turner situations will fall unevenly along poor * j.d. candidate 2019, columbia law school. the author appreciates the immense help received from professor daniel richman and owes particular thanks to the staff of the columbia journal of race and law. the author also wants to thank his parents for the sacrifices they have made to put him in a position to succeed and his brother and sister for always believing in him. 324 columbia journal of race and law [vol. 9:2 and minority lines. the sixth amendment will not completely and effectively fulfill its purpose of guaranteeing criminal defendants the right to effective assistance of counsel unless it is properly interpreted to protect defendants like john turner. i. introduction ............................................................. 325 ii. courts have determined when and where the sixth amendment right to counsel attaches except for pre-indictment plea negotiations .................................................... 330 a. current ineffective assistance of counsel law ............................................................................... 332 b. right to counsel for pre-indictment interrogations has a bright-line rule ................... 334 c. right to counsel for pre-indictment lineups has a bright-line rule ............................................. 335 d. right to counsel bright-line rule excludes the role of the prosecutor in determining when the right to counsel attaches .................................. 336 e. the supreme court has not directly ruled on the right to counsel in pre-indictment plea negotiations ....................................................... 338 iii. tension between the current bright-line rule for right to counsel and providing relief for ineffective assistance of counsel during pre-indictment plea negotiations must be remedied to address race and class issues in the status quo ..................................................... 342 a. the necessity of ex ante clarification of current sixth amendment right to counsel cases .................. 344 b. courts do not need ex ante clarity when giving defendants relief under the sixth amendment right to effective assistance of counsel ...................... 347 1. the supreme court has adopted retrospective review in ineffective assistance of counsel claims under the sixth amendment within the plea negotiation context, illustrating the necessity of applying this approach to plea negotiations ............................................. 349 no. 3:323] broader sixth amendment protections 325 c. the significance of retrospective review in ineffective assistance of counsel claims: different strands and applications of the sixth amendment ......................... 351 d. the court should be wary of the impact of the current tension between the attachment of the right to counsel and ineffective assistance of counsel pre-indictment on poor people and minorities ...................................................................... 355 1. racial implications .......................................... 357 iv. extending the sixth amendment right to effective assistance of counsel .......................... 360 a. the proposed rule is not an affront to the concerns raised for right to counsel in preindictment contexts ................................................. 361 b. the proposed rule is not an affront to sixth amendment precedent .............................................. 362 c. extending ineffective assistance of counsel protects indigent individuals and racial minorities and creates a more fair and just criminal justice system ........................................... 363 d. limitations to the proposed rule ............................ 364 e. opposition to extending sixth amendment relief ............................................................................ 364 v. conclusion ................................................................ 367 i. introduction “a justice system which tolerates injustice is doomed to collapse.”1 a recent sixth circuit case, turner v. united states, shows how criminal procedure jurisprudence fails to provide adequate protections for those who need it most.2 the sixth 1 the sentencing project, reducing racial disparities in the criminal justice system: a manual for practitioners and policymakers iii (2d ed. 2008) (quoting leonard noisette, former director, neighborhood defender service of harlem, new york), https://www.sentencingproject.org /wp-content/uploads/2016/01/reducing-racial-disparity-in-the-criminaljustice-system-a-manual-for-practitioners-and-policymakers.pdf [https:// perma.cc/svs2-tnx6]. 2 turner v. united states, 885 f.3d 949 (6th cir. 2018). 326 columbia journal of race and law [vol. 9:2 amendment guarantees a criminal defendant the right to counsel, but it also provides a defendant the right to effective assistance of counsel.3 right to counsel law, however, seems to preclude providing relief for ineffective assistance of counsel received during pre-indictment plea negotiations.4 the supreme court has not directly ruled on the issue,5 but circuit courts have held that the right to counsel must attach before a defendant has the right to effective assistance of counsel and therefore have not entertained the merits of whether counsel can be ineffective pre-indictment.6 this is unjust. the technical application of when the right to counsel attaches is in tension with full protection against ineffective assistance of counsel. this tension may exacerbate the stark disparities between the wealthy and poor that exist in the criminal justice system. the facts of turner exemplify when this tension arises. john turner was charged under tennessee state law with four counts of armed robbery.7 turner’s attorney represented him during plea negotiations with a state prosecutor. during the plea negotiations, the state prosecutor informed turner’s attorney that federal prosecutors also wanted to charge turner with federal robbery and federal firearms charges.8 federal prosecutors then reached out to turner’s attorney and offered a plea deal that would result in a fifteen-year sentence—sixty-seven years below the maximum sentence turner was facing.9 the federal prosecutors offered this plea deal before bringing a federal indictment and told turner’s attorney that the offer expired upon such an indictment.10 turner avers that he was never told about the plea deal before it lapsed.11 he hired a new attorney and pleaded to a twenty-five-year sentence in the federal case.12 turner brought an ineffective assistance of counsel claim, but 3 u.s. const. amend. vi. 4 this was the outcome in turner, 885 f.3d 949. 5 turner’s lawyers filed a writ of certiorari with the supreme court on july 20, 2018. turner v. united states, 885 f.3d 949 (6th cir. 2018), petition for cert. filed, no. 18-106 (july 20, 2018). 6 id. at 955. 7 id. at 951. 8 id. at 952. 9 id. 10 id. 11 id. 12 id. no. 3:323] broader sixth amendment protections 327 the sixth circuit held that turner could not be granted relief for ineffective assistance of counsel,13 reasoning that he did not yet have the right to counsel in the federal case.14 indigent defendants are significantly impacted by their inability to gain relief for ineffective assistance during preindictment plea negotiations. consider turner’s situation, which arose because there were both state and federal charges. this is not an unusual situation due to the increasing federal ization of crime.15 in this type of situation, an indigent defendant must use a state-appointed attorney in the state case and a federally appointed attorney in the federal case.16 but the defend ant does not currently receive the right to a federal attorney until after a federal indictment.17 as a result, the state attorney deals with any federal pre-indictment plea deals. the state attorney may fail to provide efficient representation in federal preindictment plea negotiations.18 as turner suggests, such a defend ant may not only be deprived of an opportunistic plea deal, but also denied recourse for an attorney’s inability to relay the opportunity.19 at the very least, the tension between the right to counsel’s attachment and ineffective assistance during pre 13 id. at 955. 14 id. (“but turner's sixth amendment right to counsel had not yet attached during those preindictment plea negotiations. there can be no constitutionally ineffective assistance of counsel where there is no sixth amendment right to counsel in the first place.”). 15 see generally dick thornburgh et al., the growing federalization of criminal law, 31 n.m. l. rev. 135 (2001). 16 a defendant will most likely need a different attorney for her federal prosecution and state prosecution because the state public attorney system is funded and operated differently than the federal public defense system. see caroline wolf harlow, bureau of justice statistics, ncj 179023, defense counsel in criminal cases 3 (2000) (showing that the only types of counsel in federal district court criminal cases were private attorneys, federal defender organizations, or pro se, and never included any state public defenders). 17 rothgery v. gillespie, 554 u.s. 191, 225 (2008). 18 public defenders are not inherently less competent than a private attorney, but a lapse in communicating a plea deal seems plausible given the often-massive case load of a public defender and limited resources. see bureau of justice statistics, ncj 231175, county-based and local public defender offices, 2007, at 1 (2010), https://www.bjs.gov/content/ pub/pdf/clpdo07.pdf [https://perma.cc/q7fk-v8sm] (finding that seventythree percent of county-based public defenders exceeded the maximum recommended limit of cases received per attorney). 19 this was the outcome in turner, 885 f.3d at 952. 328 columbia journal of race and law [vol. 9:2 indictment plea negotiations is more likely to arise for indigent defendants. this tension should cause concern, particularly when considering that in 2012, “97 percent of federal cases and 94 per cent of state cases”20 and “90 to 95 percent of [public defenders’] clients plead[ed] guilty.”21 because guilty pleas are ubiquitous, prosecutors have an incentive to begin the negotiations as early as possible, including pre-indictment.22 this tension within sixth amendment jurisprudence should not be accepted, and a variety of realities plaguing the criminal justice system exacerbate the urgency for resolution of this injustice. first, attorney general eric holder acknowledged that the criminal justice system fails to provide competent legal services to the poor.23 second, grave disparities exist in plea outcomes for african american defendants, who are more likely to rely on public defenders compared to white defendants.24 20 erica goode, stronger hand for judges in the “bazaar” of plea deals, n.y. times (mar. 22, 2012), https://www.nytimes.com/2012/03/23/us/ stronger-hand-for-judges-after-rulings-on-plea-deals.html [https://perma.cc/ f5bh-5v8e]. 21 jaeah lee et al., charts: why you’re in deep trouble if you can’t afford a lawyer, mother jones (may 6, 2013), http://www.motherjones.com/ politics/2013/05/public-defenders-gideon-supreme-court-charts/# [https://per ma.cc/vp8e-428d]. 22 teresa white carns & john kruse, a re-evaluation of alaska’s plea bargaining ban, 8 alaska l. rev. 27, 38 (1991) (“by 1989, however, anchorage prosecutors were describing the routine ‘pre-indictment’ hearings as opportunities for charge bargaining in most cases.” (footnote omitted)); steven j. mulroy, the bright line’s dark side: pre-charge attachment of the sixth amendment right to counsel, 92 wash. l. rev. 213, 217 (2017) (“[p]re-indictment plea negotiations are not uncommon.”); david n. yellen, two cheers for a tale of three cities, 66 s. cal. l. rev. 567, 569 (1992) (“[i]t is likely that [pre-indictment plea] bargaining has increased under the [federal sentencing] guidelines . . . .”). 23 eric holder, attorney gen., u.s. dep’t of justice, speech at the justice department's 50th anniversary celebration of the u.s. supreme court decision in gideon v. wainwright (mar. 15, 2013), https://www.justice .gov/opa/speech/attorney-general-eric-holder-speaks-justice-departments50th-anniversary-celebration-us [https://perma.cc/6pdk-2mxj]. 24 see generally carlos berdejó, criminalizing race: racial disparities in plea bargaining, 59 b.c. l. rev. 1187 (2018); see also wolf harlow, supra note 16, at 9 (finding that about seventy-seven and seventy-three percent of black and hispanic defendants, respectively, used a public defender in state cases, and about sixty-five and fifty-six percent of black and hispanic defendants used a public defender in federal cases, respectively). no. 3:323] broader sixth amendment protections 329 having an attorney during plea negotiations and eventually at the plea deal acceptance provides the most adequate protection for defendants. this is especially true for any poor or minority individuals who have been charged with a crime and have no knowledge of the law. the right to counsel poses larger problems that are beyond the scope of this note. this note argues that indigent defendants who have pre-indictment counsel in some capacity must also have the right to effective assistance of counsel relief under the sixth amendment for any pre-indictment plea bargaining that takes place.25 admittedly, pre-indictment plea negotiations are more likely to take place in the white-collar setting than for “street crimes.” this note, however, argues that the facts exemplified by turner (“turner situations”) both happen and result in outcomes that have a profound impact on poor and minority defendants. the court should consider this when analyzing sixth amendment relief for pre-indictment plea negotiations.26 this note further argues that the supposed sixth amendment tension between ineffective assistance of counsel and the right to counsel can and should be resolved. in part ii, this note details the law on when the right to counsel attaches. significantly, it does not currently exist for pre-indictment plea deals, which presumably also precludes ineffective assistance of counsel relief for advice during pre-indictment plea negotiations. next, part iii shows that providing ineffective assistance of counsel relief for pre-indictment plea negotiations is not an affront to supreme court precedent because the right to effective assistance of counsel is an independent sixth amendment right, and the court applies the different strands of the sixth amendment in relation to the different administrative and fairness concerns each raise. the socioeconomic and racial disparities that exist in the criminal justice system, as well as the extent to which the inability to gain relief for ineffective assistance of counsel during pre-indictment plea negotiations exacerbates this disparity, are discussed in part iii. part iv 25 turner v. united states, 885 f.3d 949, 955 (6th cir. 2018) (holding that ineffective assistance of counsel cannot be raised unless the right to counsel attaches). 26 id. at 952 (deciding to review whether the right to counsel had attached instead of ruling on ineffective assistance of counsel for a defendant charged with aggravated robbery). 330 columbia journal of race and law [vol. 9:2 concludes by arguing that courts can apply the ineffective assistance of counsel standard to pre-indictment plea negotiations whenever an attorney represents a defendant in some capacity. ii. courts have determined when and where the sixth amendment right to counsel attaches except for pre-indictment plea negotiations it is important to understand both where ineffective assistance of counsel and right to counsel attachment law currently stand and why there is ostensible tension between the two. the sixth amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.”27 early on, the sixth amendment was understood to protect all criminal defendants in federal cases.28 in 1963, the supreme court recognized the fundamental unfairness of a state justice regime that limits access to counsel for defendants without resources. the court then interpreted the sixth amendment to require states to provide counsel for all indigent defendants in a felony criminal case29 or for any crime that will result in imprisonment for six or more months.30 over time, courts have highlighted the pivotal role lawyers play in ensuring defendants are guaranteed a fair trial and defending against the potential deprivation of one’s liberty. still, the supreme court needed answers to two questions: (1) when exactly does the sixth amendment right to counsel attach, thus requiring that a lawyer be provided, and (2) are there any implied rights regarding the right to counsel? the supreme court made clear in rothgery v. gillespie that a bright-line rule determines when the right to counsel attaches and a lawyer is needed.31 as most bright-line rules function, the rule draws a visible, clear line—criminal defend ants must stand in front of a judge or be formally charged before they have the right to an attorney.32 some lower courts have 27 u.s. const. amend. vi. 28 mulroy, supra note 22, at 219 (citing luis v. united states, 136 s. ct. 1083, 1089 (2016)); see also johnson v. zerbst, 304 u.s. 458 (1938). 29 gideon v. wainwright, 372 u.s. 335, 345 (1963). 30 argersinger v. hamlin, 407 u.s. 25, 30–31 (1971). 31 see rothgery v. gillespie, 554 u.s. 191 (2008). 32 id. at 198. no. 3:323] broader sixth amendment protections 331 bent the line at times and instead apply a standard approach.33 the standard approach implies that there are times before an individual stands before a judge or is indicted when the state is extremely adversarial. the standard approach supports an understanding of the right to counsel as commencing protection for a defendant whenever the state begins to use the law as a sword. the supreme court is, however, clear that a bright-line rule must apply at that point.34 in strickland v. washington, the supreme court held that the sixth amendment affords a criminal defendant the right to effective assistance of counsel.35 the court found that the due process clause requires a fair trial and the sixth amendment defines what a fair trial is.36 the strickland court then held that a fair trial includes effective assistance of counsel.37 in a system that emphasizes the role of counsel to ensure fair outcomes, the right to counsel is meaningless absent protection against inadequate counsel. unlike with a right to counsel claim, courts apply a standard to determine whether there is ineffective assistance of counsel at a critical point in the proceedings.38 ineffectiveness can only be proven by showing that counsel was inadequate and that the inadequate performance also prejudiced the defense in such a way that the defendant was “deprive[d] . . . of a fair trial.”39 as turner highlights, right to counsel law currently denies relief for ineffective assistance of counsel received pre-indictment when staggered charges are brought by a state prosecutor and a federal prosecutor.40 this part offers a succinct analysis of the ineffective assistance of counsel and the right to counsel sixth 33 mulroy, supra note 22, at 217. 34 see rothgery, 554 u.s. at 198. 35 strickland v. washington, 466 u.s. 668 (1984). the standard for ineffective assistance of counsel is discussed in section ii.a. 36 id. at 685. 37 id. 38 see rothgery, 554 u.s. at 198 (showing that the right to counsel has a bright-line rule). 39 strickland, 466 u.s. at 687. 40 turner v. united states, 885 f.3d 949, 955 (6th cir. 2018). 332 columbia journal of race and law [vol. 9:2 amendment strands.41 the analysis concludes with contrasting the two stands in hopes of highlighting the problem with the current friction. a. current ineffective assistance of counsel law the supreme court has held that the sixth amendment protects criminal defendants from ineffective assistance of counsel.42 the watershed case, strickland v. washington, is a case in which the court found that there was no ineffective assistance of counsel in the face of substantial defense counsel shortcomings.43 in strickland, a criminal defendant pleaded guilty to three murders and received the death penalty.44 the defendant then raised an ineffective assistance of counsel claim for his attorney’s decision not to seek a psychiatric evaluation and present other meaningful arguments to the sentencing judge. the court found that the attorney’s conduct did not amount to ineffective assistance of counsel.45 the strickland court established the standard for evaluating ineffective assistance of counsel claims: a defendant must prove that his legal counsel was not reasonably effective and that the ineffectiveness had a prejudicial effect.46 far from a brightline rule, a judge must make an individual judgement to determine whether counsel’s actions were objectively impermissible. determining whether there was ineffective assistance of counsel is intensely dependent on the facts of the case. this stands in stark contrast to the right to counsel, where the judge merely inquires whether a defendant has seen a judge or been indicted.47 41 for further analysis, see brandon k. breslow, signs of life in the supreme court’s uncharted territory: why the right to effective assistance of counsel should attach to pre-indictment plea bargaining, 62 fed. l. 35, 35 (2015) (arguing that the dicta in these cases can help extend the sixth amendment to pre-indictment plea bargaining). 42 strickland, 466 u.s. at 668. 43 id. at 669. 44 id. at 672–75. 45 id. at 698. 46 id. at 687. 47 see rothgery v. gillespie, 554 u.s. 191, 198 (2008) (summarizing the court’s precedent regarding the right to counsel as having “pegged commencement” of a criminal prosecution to “‘the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment’”). no. 3:323] broader sixth amendment protections 333 the supreme court has, in a line of cases, found a cognizable ineffective assistance of counsel claim specifically for advice given during post-indictment plea negotiations.48 this type of claim is available for both possible outcomes of the negotiations: plea deals that are accepted and plea deals that lapse or are denied.49 the difference is in measuring prejudice. when the ineffective assistance of counsel claim stems from an accepted plea deal, the defendant must “show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”50 significantly, in lafler and frye, the supreme court not only extended its ineffective assistance of counsel analysis to lapsed or denied plea deals, but also noted that a plausible remedy for ineffective counsel during plea deals would be to simply sentence the defendant according to the original plea deal.51 that is, the remedy may be that the defendant is sentenced consistent with the plea deal that defense counsel’s deficient assistance precluded the defendant from accepting. in lafler, the defendant was counseled to reject a plea deal with a recommendation for a fifty-one to eighty-five-month sentence for murder.52 lafler’s attorney wrongly believed that because the victim of the crime was shot below the waist, the state could not prove lafler’s intent to murder.53 the defendant was ultimately found guilty based on defense counsel’s wrong assumption and was sentenced to 185 to 360 months.54 he successfully claimed in effective assistance of counsel and was offered the original plea deal as a remedy.55 succinctly, ineffective assistance of counsel applies a standard approach to determining whether a defendant should be granted relief based on counsel conduct at trial or during plea deals. in contrast, the sixth amendment right to counsel line of cases does not apply a standard approach. 48 see lafler v. cooper, 566 u.s. 156 (2012); missouri v. frye, 566 u.s. 134 (2012); hill v. lockhart, 474 u.s. 52 (1985). 49 see lafler, 566 u.s. 156 (plea denied); frye, 566 u.s. 134 (plea lapsed); hill, 474 u.s. 52 (plea accepted). 50 hill, 474 u.s. at 59. 51 see generally lafler, 566 u.s. 156; frye, 566 u.s. 134. 52 lafler, 566 u.s. at 161. 53 id. at 166. 54 id. at 160, 166. 55 id. at 174. 334 columbia journal of race and law [vol. 9:2 b. right to counsel for pre-indictment interrogations has a bright-line rule in united states v. gouveia, the court held that there is no sixth amendment right to counsel during pre-indictment interrogations.56 originally, in escobedo v. illinois, the court seemed to create advantageous rules for resourceful defendants.57 in escobedo, the supreme court held that when an “investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect,” the sixth amendment right attaches and a defendant can have a lawyer present if demanded during police interrogations before the filing of any charges.58 however, because this case dealt with police conduct and not prosecutors’ conduct, escobedo is interpreted as a fifth amendment case and has diverged from relevant precedent analyzing sixth amendment protections.59 gouveia held that a blanket rule applies to both indigent and wealthy criminal defendants: the right to counsel “attaches only at or after the initiation of adversary judicial proceedings.”60 in gouveia, two prisoners were accused of killing another inmate.61 prison officials removed the accused men from general population, placed them in administrative segregation, and conducted interrogations without counsel present.62 the defendants were held in segregation for nineteen months while the prison investigated the incident, which included additional interrogations of the defendants. finally, a grand jury indicted 56 united states v. gouveia, 467 u.s. 180, 187 (1984). 57 378 u.s. 478, 490 (1964). 58 id. 59 eve brensike primus, disentangling miranda and massiah: how to revive the sixth amendment right to counsel as a tool for regulating confessions, 97 b.u. l. rev. 1085, 1101 (2017) (“in miranda, the court . . . . reinterpreted escobedo as a fifth amendment case (thus destroying escobedo’s precedential value for sixth amendment purposes) . . . .” (footnote omitted)); see also mulroy, supra note 22, at 225 (“in kirby, the court explained that ‘the court in retrospect perceived that the “prime purpose” of escobedo was not to vindicate the . . . right to counsel as such, but, like miranda, “to guarantee the full effectuation of the privilege against self-incrimination.’” (quoting kirby v. illinois, 406 u.s. 682, 689 (1972)). 60 gouveia, 467 u.s. at 187. 61 id. at 182. 62 id. no. 3:323] broader sixth amendment protections 335 the two suspects.63 the men argued that their sixth amendment right to counsel had been violated when they were held for nineteen months in segregation while interrogations were being conducted without being appointed counsel.64 the supreme court relied on a sweeping, bright-line rule: before any formal charges are brought, an individual is not afforded the sixth amendment’s right to counsel.65 therefore, the defendants in gouveia did not have their sixth amendment right violated. the implications of the holding in gouveia are that if a defendant cannot pay for a lawyer to be available at the start of a criminal investigation, the defendant ultimately is not afforded the ability to have one.66 indigent defendants during pre-indictment interrogations are not afforded the right to counsel during those interrogations. c. right to counsel for pre-indictment lineups has a bright-line rule in kirby v. illinois, the supreme court was also clear that an individual is not afforded the sixth amendment’s right to counsel in pre-indictment lineups.67 there, a plurality of the court agreed that the right to counsel has a clear, distinct line; the right attaches only when “adversary judicial proceedings have been initiated against [a defendant].”68 the facts of kirby illustrate the problems that can arise from a bright-line rule, especially for those who cannot demand that a lawyer be present. in that case, someone had robbed the victim and that victim reported the theft to the police.69 the following day, police stopped kirby because the officers misidentified him as someone with an arrest warrant for an 63 id. 64 id. 65 id. at 187. 66 though a wealthy defendant may not have the right to have his counsel present, a poor defendant receives no counsel at all. a wealthy defendant can summarize the interrogation to his retained attorney and be counseled on how to proceed and the implications of his interrogation. a poor defendant does not receive this benefit because of this ruling. this can be used to force indigent defendants to accept plea deals. 67 406 u.s. 682, 687 (1972). 68 id. at 688 (denying the right to counsel to a defendant who was placed in a pre-indictment witness lineup and identified by the victim). 69 id. at 684. 336 columbia journal of race and law [vol. 9:2 unrelated crime.70 when kirby produced his identification, he also displayed a wallet that had the complaining witness’s identification inside.71 this made the officers suspicious, so they brought him to the police station.72 the officers did not know about the reported robbery until they brought him to the station.73 without kirby’s knowledge, and before he was advised of his right to counsel, the robbery victim was called to the station and subsequently identified kirby as the robber.74 kirby was indicted for the robbery six weeks later, and the victim’s identification of him during the pre-indictment lineup was used at trial.75 the supreme court declined kirby’s motion to suppress the pre-indictment lineup evidence.76 it found that while the exclusionary rule applies to post-indictment lineups, the same cannot be said about pre-indictment lineups because the right to counsel had not attached.77 the court found that the police were conducting a routine investigation and declined to hold that it was adversarial before the state had “committed itself to prosecute.”78 this is evidence that there is no sixth amendment right to counsel for pre-indictment lineups. d. right to counsel bright-line rule excludes the role of the prosecutor in determining when the right to counsel attaches the bright-line rule applies as stated: an indictment must be filed or the defendant must have come before a judge.79 this is true regardless of prosecutorial knowledge of whether 70 id. 71 id. 72 id. 73 id. 74 id. at 684–85. 75 id. at 685. 76 id. at 690. 77 id. at 688; see also wayne h. carlton, jr. & carol a. tootle, note, constitutional law—criminal procedure—counsel required at lineup only if formal judicial proceedings have been initiated, 47 tul. l. rev. 899 (1973) (arguing that while kirby implemented a bright-line rule, the court ignored fairness and justice in doing so). 78 kirby, 406 u.s. at 689. 79 rothgery v. gillespie, 554 u.s. 191, 206 (2008). no. 3:323] broader sixth amendment protections 337 the judicial proceedings took place.80 in rothgery v. gillespie, the supreme court reversed the fifth circuit and held what is arguably the supreme court’s clearest application of a brightline rule determining when the right to counsel attaches.81 rothgery invokes a strong principle—a judicial proceeding or an indictment will invoke a defendant’s sixth amendment right to counsel, and prosecutorial knowledge of the judicial proceeding is irrelevant.82 this is a strong indication that the bright-line rule leaves no room for discretion and excludes the right to counsel for any pre-indictment context. in that case, rothgery was wrongly arrested for “felon in possession of a firearm” after a background check erroneously reported that he had been previously convicted of a felony.83 following texas’ criminal procedure, he went before a magistrate judge who was to determine whether there was probable cause for his arrest and to set bail.84 rothgery was indigent and at various times requested counsel, but the local court declined his request.85 however, the state prosecutor never knew that rothgery was arrested and had appeared before a judge.86 eventually, a texas grand jury indicted rothgery, but a state prosecutor dismissed the indictment once rothgery finally obtained a lawyer who showed that the criminal record was erroneous.87 rothgery sued for violation of his sixth amendment rights, but the fifth circuit denied relief because the state prosecutor did not have knowledge of the case.88 the supreme court rejected this argument.89 the court held that “the first formal proceeding is the point of attachment.”90 this new brightline rule seems to indicate that the first formal proceeding is 80 id. at 210. 81 rebecca yoder, rothgery v. gillespie county: applying the supreme court’s latest sixth amendment jurisprudence to north carolina criminal procedure, 33 campbell l. rev. 477, 481 (2011) (“the court's language strongly suggests an attempt to create a bright-line rule applicable in every state criminal court.”). 82 rothgery, 554 u.s. at 210. 83 id. at 195. 84 id. at 195–96. 85 id. at 196. 86 id. at 197–98. 87 id. at 197. 88 id. at 198. 89 id. at 199. 90 id. at 203. 338 columbia journal of race and law [vol. 9:2 either a defendant’s first judicial appearance or an indictment. prosecutorial knowledge is not necessary for the right to attach. the rothgery court’s interpretation of the law was not new, however.91 instead, it reinforced its stance on taking a brightline approach to when the right to counsel attaches and that the bright-line rule articulated in gouveia and kirby includes appearance before a judge to know whether there is probable cause and for a bail determination.92 the disparity in outcomes under the status quo for those who can pay for an attorney and those who cannot must be considered. if rothgery could have afforded to retain an attorney who would have shown that the record was erroneous, his charges could have been dismissed before even appearing before a judge. a lawyer could have entered into pre-indictment negotiations and resolved the issue or sought a disposition. consider, in addition, the turner scenario: rothgery could have also been charged with a federal firearm crime and entered into plea negotiations with a federal prosecutor before an indictment. in this hypothetical situation, rothgery’s state attorney could have misadvised him during the pre-indictment negotiations in his federal case, impacting the outcome of his federal case. yet, according to turner, he would be unable to bring an ineffective assistance of counsel claim.93 e. the supreme court has not directly ruled on the right to counsel in pre-indictment plea negotiations the supreme court has not ruled on whether the right to counsel attaches to pre-indictment plea negotiations.94 however, the bright-line rule applied in gouveia, kirby, and rothgery implies that the right to counsel does not attach during pre-indictment plea negotiations because pre-indictment plea 91 douglas l. colbert, prosecution without representation, 59 buff. l. rev. 333, 342 (2011) (“rothgery’s specific holding of when the right to counsel attaches affirmed prior right to counsel rulings . . . .” (footnote omitted)). 92 kirby stated that “adversary judicial [criminal] proceedings” invoke the sixth amendment. kirby v. illinois, 406 u.s. 682, 688 (1972). 93 see turner v. united states, 885 f.3d 949, 955 (6th cir. 2018). 94 see mulroy, supra note 22. no. 3:323] broader sixth amendment protections 339 negotiations happen before there is an indictment or a judicial proceeding.95 for example, in united states v. moody, the sixth circuit held that pre-indictment plea deals do not trigger the right to counsel.96 in moody, mark moody voluntarily approached the fbi in order to cooperate on potential charges pertaining to a conspiracy to deal cocaine.97 at that point, an indictment had not been brought.98 the prosecution appreciated his cooperation and offered moody a five-year-sentence plea offer.99 moody hired an attorney who then declined the prosecution’s offer before realizing that the defendant made various self-incriminating statements during plea bargaining.100 the prosecutor used these statements and eventually forced the defendant to plead guilty, but at that point, the five-year sentence was off the table. instead, the defendant pleaded guilty to a ten-year sentence.101 moody brought an ineffective assistance of counsel claim, but the sixth circuit denied his claim.102 the sixth circuit understood that it was a mere formality that the government had not filed an indictment before the plea offer, but declined to set aside, vacate, or correct the defendant’s sentence for ineffective assistance of counsel.103 under the bright-line rule, the right to counsel did not attach and therefore, moody did not have a right to an ineffective assistance of counsel claim. the right to counsel can only attach “at or after the initiation of judicial 95 c.f. turner, 885 f.3d 949. 96 206 f.3d 609 (6th cir. 2000) (holding that pre-indictment plea deals do not trigger the right to counsel). 97 id. at 611. 98 id. 99 id. 100 id. 101 id. at 612 (“the district court granted the motion for downward departure, and imposed a sentence of 120 months of imprisonment . . . .”). 102 id. at 615 (“but for the delay of the prosecution in filing charges, moody clearly would have been entitled to the effective assistance of counsel. under the supreme court’s and our circuit’s approach, he is not—even though the point at which the actions of moody’s counsel fell below an objective standard of reasonableness was no less a ‘critical stage’ of the proceedings against him.”). 103 id. (“we believe it to be a mere formality that the government had not indicted moody at the time that it offered him a deal and invited him to seek the assistance of counsel.”). 340 columbia journal of race and law [vol. 9:2 criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”104 it ruled against moody despite also stating that during preindictment plea deals “the adverse positions of the government and the suspect have solidified” and the bright-line rule “raises the specter of the unwary defendant agreeing to surrender his right to a trial in exchange for an unfair sentence without the assurance of legal assistance to protect him.”105 the moody holding applied to the holding in turner v. united states.106 the sixth circuit felt bound by moody when it denied turner relief.107 the court could not vacate or set aside the federal sentence because the state counsel’s ineffective performance happened before any indictment or judicial proceeding in the federal case.108 an oregon district court, however, saw the issue differently in united states v. wilson—it not only held that the right to counsel attached, but also awarded the defendant ineffective assistance of counsel relief for advice during preindictment plea negotiations.109 the defendant, jay wilson, was found with a large quantity of illegal drugs and a gun.110 before an indictment was filed, wilson decided to cooperate with the authorities, confessed his role in a drug smuggling operation, and provided critical intelligence that led to more drug busts.111 he wanted to enter into pre-indictment plea negotiations, but the federal prosecutor insisted on an attorney 104 id. at 614 (quoting kirby v. illinois, 406 u.s. 682, 689 (1972)). 105 id. at 615–16. 106 turner v. united states, 885 f.3d 949 (6th cir. 2018). 107 id. at 951–52. 108 id. at 955 (“there can be no constitutionally ineffective assistance of counsel where there is no sixth amendment right to counsel in the first place.”). 109 719 f. supp. 2d 1260, 1266 (d. or. 2010). for a list of the split between courts on this issue, see mulroy, supra note 22, at 216. the circuit split mulroy focuses on is not specific to pre-indictment plea deal negotiations, however, but rather examines whether the supreme court has implemented a bright-line rule or standard for any pre-indictment conduct. 110 wilson, 719 f. supp. 2d at 1264. 111 id. no. 3:323] broader sixth amendment protections 341 being present.112 after the state provided wilson an attorney, the prosecutor offered him a six-year plea deal.113 the public defender refused to accept the plea deal and instead countered that a deal be made after discovery.114 the prosecutor declined this offer and then filed an indictment. at trial, mr. wilson was sentenced to twenty years in prison.115 the defendant filed a motion to set aside or vacate his sentence for ineffective assistance of counsel based on his public defender’s advice pre-indictment,116 but the district court insisted that it legally needed to address whether the sixth amendment right to counsel attached.117 the district court first reiterated that the supreme court has not held whether the sixth amendment applies to “formal pre-indictment plea negotiation.”118 the court then took a more legal realist view of the issue: instead of drawing a bright line, the district court held that “the right to the effective assistance of counsel rests on the nature of the confrontation between the suspect-defendant and the government, rather than a ‘mechanical’ inquiry into whether the government has formally obtained an indictment.”119 it then found that the right to counsel had attached in this case. the district court went on to review whether wilson’s counsel was ineffective and had led to the twenty-year sentence.120 the different outcomes in wilson and turner are significant.121 though both defendants had a lawyer preindictment, only one defendant received relief for ineffective assistance of counsel—a corrected sentence of six years. the 112 id. (“petitioner insisted on speaking to the prosecutor about obtaining a ‘deal’ in exchange for his cooperation. assistant united states attorney (‘ausa’) charles stuckey informed him that [sic] would not discuss plea negotiations unless petitioner obtained an attorney.”). 113 id. 114 id. 115 id. at 1265. 116 id. 117 id. at 1266. 118 id. 119 id. 120 id. at 1269. 121 wilson, unlike turner, did not deal with a state crime and then a subsequent federal charge. this note’s proposed solution, discussed in part iv, does not make this distinction. however, that difference is critical to understanding how indigent and minority defendants are more likely affected by the outcome, which is discussed in part iii. 342 columbia journal of race and law [vol. 9:2 other was denied a chance to argue that his counsel was ineffective because the sixth circuit held that the bright-line rule about when the right to counsel attaches precludes relief for ineffective assistance of counsel during pre-indictment plea negotiations, even when a lawyer was present during preindictment proceedings. the issue is especially grave for indigent individuals who rely on appointed counsel and will most likely have different counsel if both state and federal prosecutors bring charges. until the supreme court rules on whether a criminal defendant can have relief for ineffective assistance of counsel during pre-indictment plea negotiations, an indigent defendant who has state-appointed counsel will be left without constitutional protections against a situation in which the state attorney gives advice that adversely affects the defendant’s federal case. iii. tension between the current bright-line rule for right to counsel and providing relief for ineffective assistance of counsel during preindictment plea negotiations must be remedied to address race and class issues in the status quo the issue described does not need to exist; courts can provide ineffective assistance of counsel relief for advice received during pre-indictment plea negotiations without it being an affront to precedent or the text of the constitution. this becomes clearer if the right to effective assistance of counsel is analyzed as its own independent strand of the sixth amendment. the court stated in mcmann v. richardson that “if the right to counsel guaranteed by the constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.”122 this implies that courts must hold lawyers to their obligation to provide effective assistance of counsel, and no criminal defendant can be deprived of the ability to have effective assistance of counsel. this makes sense given that the sixth amendment provides for “assistance of 122 397 u.s. 759, 771 (1970). no. 3:323] broader sixth amendment protections 343 counsel.”123 strickland relied on mcmann to hold that a defendant has the right to effective assistance of counsel and then elaborated on what the standard is for measuring ineffectiveness.124 therefore, instead of depriving a criminal defendant of a constitutional right, courts must resolve the apparent tension between its sixth amendment jurisprudence on right to counsel and ineffective assistance of counsel. courts can do this by considering the administrative and fairness concerns the supreme court considers in the different sixth amendment strands and realizing that courts apply each strand independently based on the concerns the immediate case raises. this tension must be resolved. the criminal justice system relies on plea negotiations, and these negotiations can and do happen pre-indictment.125 additionally, the facts of cases in which this issue is more likely to arise strongly influence how poor individuals and minorities are treated in the criminal justice system. in these cases, a state brings charges, a state public attorney is assigned, and then federal prosecutors negotiate a plea with the state-appointed attorney before a federal indictment is brought.126 instead of viewing the negative impacts of pre-indictment plea negotiations as an innate, perennial issue, courts can provide relief that assists in remedying the pitfalls of the current system. this part analyzes how the courts can resolve the apparent tension between right to counsel attachment analysis and providing ineffective assistance of counsel relief for defendants who have a deficient attorney during pre-indictment plea negotiations. while the supreme court is preoccupied with ex ante clarity for right to counsel cases, that concern ought not to apply in the ineffective assistance of counsel context, as those claims are invariably assessed post-conviction. ineffective assistance 123 u.s. const. amend. vi (emphasis added). 124 strickland v. washington, 466 u.s. 668, 686 (1984) (“the court has not elaborated on the meaning of the constitutional requirement of effective assistance in the latter class of cases—that is, those presenting claims of ‘actual ineffectiveness.’ . . . [but] [t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”). 125 mulroy, supra note 22, at 217. 126 these were the facts in turner, expect that there was not a state appointed attorney. turner v. united states, 885 f.3d 949 (6th cir. 2018). 344 columbia journal of race and law [vol. 9:2 of counsel issues cannot raise the same concerns as right to counsel issues because of the context in which they are raised, and because they guard against different injustices. the differences between ineffective assistance of counsel and right to counsel create tension and should be viewed as legal fiction. courts should provide relief for harmful legal advice obtained during pre-indictment plea negotiations. additionally, this part analyzes why this tension must be resolved. given the way poor and minority defendants interact with the criminal justice system, this tension denies relief to many and perpetuates the disparities that plague the criminal justice system. the courts should consider this impact and understand the policy concerns the current supposed tension raises. a. the necessity of ex ante clarification of current sixth amendment right to counsel cases a bright-line rule is a meaningful way to address the fairness and administrative concerns the supreme court has when reviewing when the right to counsel constitutionally attaches. the sixth amendment’s right to counsel precedent developed out of a need to protect the lay defendant, and this necessity underpins all of the court’s right to counsel opinions.127 for instance, gideon compelled states to provide counsel for all criminal defendants, not just in capital cases. this is because an attorney can help provide a fair criminal procedure in the adversarial system and a fair criminal system goes beyond capital crimes.128 the court emphasized the importance of having the right to an attorney when it stated that “[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law.”129 lay defendants need protection, 127 some scholars believe the right to counsel developed not just to protect lay defendants, but specifically because of the courts’ paternalistic nature and desire to protect african americans, who were seen as inherently lay defendants. see generally kristen henning, race, paternalism, and the right to counsel, 54 am. crim. l. rev. 649 (2017). others directly relate the concern to protect the lay defendant with the history of the right preconstitution. see pamela r. metzger, beyond the bright line: a contemporary right-to-counsel doctrine, 93 nw. l. rev. 1635, 1637–57 (2003). 128 gideon v. wainwright, 372 u.s. 335, 344 (1963). 129 id. at 345. no. 3:323] broader sixth amendment protections 345 and the court believed that this is the pivotal role attorneys play within the adversarial system. requiring counsel to be provided is not enough to protect the lay defendant. courts must decide when in the proceedings an attorney must be provided. in gouveia, the court articulated that the purpose of the sixth amendment was to “protect[] the unaided layman at critical confrontations with his adversary.”130 the court wants the criminal process to be perceived as fair. a process that allows a prosecutor who is well-versed in the law to begin prosecuting someone without an attorney does not have a perception of fairness. these fairness concerns galvanized the court to apply a bright-line rule for determining when the right to counsel attaches. in order to protect lay defendants in adversarial criminal proceedings, ex ante clarity is necessary. this clarity is precisely what a bright-line rule provides. looking retrospectively is not good enough because it leaves defendants on their own to answer complex legal questions that can impact their outcomes.131 there can be remedies after the fact, but sometimes remedies are hard to provide—it is difficult to know what would have been different if a lawyer was present. instead of conjecturing about this, the court unequivocally states when in the process the defendant must have an attorney. right to counsel cases also have administrative concerns that support the need for ex ante clarity and therefore, a need for a bright-line rule. first, generally, if a state has an obligation to provide counsel in a far-ranging number of cases after gideon and argersinger, then the court must be clear about when the state must provide this benefit. the court cannot reasonably expect a state to determine when to provide counsel on a case-by-case standard with fair results.132 secondly, and similarly, right to counsel law should not be allowed to impede a state’s routine investigation techniques that help ensure the correct defendant 130 united states v. gouveia, 467 u.s. 180, 189 (1984); see also rothgery v. gillespie, 554 u.s. 191, 198 (2008) (discussing when the right to counsel attaches and why it does). 131 gideon, 372 u.s. at 345 (stating that a lay defendant needs help in the “science of law”) (emphasis added). 132 sara mayeux, what gideon did, 116 colum. l. rev. 15, 19 (2016) (arguing that gideon has been a failed promise and is consistently undermined by underfunding and overworking public defender offices and by “legislators, taxpayers, and lower-level judges nationwide”). 346 columbia journal of race and law [vol. 9:2 is arrested.133 a standard-based approach to the attachment analysis would essentially cause prosecutors to have minitrials while investigating a matter before an indictment is brought to show that their actions were not “adversarial” in nature.134 a bright-line rule eliminates this concern. the court has historically been concerned about these administrative problems when reviewing pre-indictment lineups.135 in united states v. kirby, the court saw that the defendant was asking the court “to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings.”136 the court stated that it enforces a different doctrine to ensure there is no abuse during investigations, but the sixth amendment right to counsel is not suitable.137 ex ante clarity ensures that the state knows how it can conduct routine lineups, and the same can be said for pre-indictment investigations. the current bright-line rule is manageable and allows courts to guard against their administrative concerns. the court, therefore, relies on other doctrines and promulgated rules by the american bar association to ensure investigations are conducted in a fair manner. however, it denies that the sixth amendment provides doctrinal use.138 133 in fact, there are clear ethical rules showing that courts desire to protect routine investigation techniques while ethically regulating adversarial prosecutor contact. for further examples of the court’s concern with impeding investigations outside the context of this note, see lisa f. salvatore, united states v. hammad: encouraging ethical conduct of prosecutors during pre-indictment investigations, 56 brook. l. rev. 577 (discussing disciplinary rule 7-104(a)(1) and how the court became wary about applying it to pre-indictment investigations). 134 the adversarial language is used here as a standard to mirror the law stated in lower courts, which apply a standard-like approach. see, e.g., united states v. wilson, 719 f. supp. 2d 1260, 1266 (d. or. 2010). 135 kirby v. illinois, 406 u.s. 682, 690 (1972). 136 id. 137 id. at 691 (“the due process clause of the fifth and fourteenth amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification.”). 138 id. (holding that the sixth amendment did not apply to routine police investigations but that this does “not . . . suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures[;] [s]uch abuses are not beyond the reach of the constitution”). no. 3:323] broader sixth amendment protections 347 b. courts do not need ex ante clarity when giving defendants relief under the sixth amendment right to effective assistance of counsel a bright-line rule is unnecessary because the sixth amendment’s guarantee of effective assistance of counsel is not a ground rule establishing fair parameters at the start of legal proceedings. instead, this guarantee is supposed to correct mishaps that happen during the pursuit of justice. ineffective assistance of counsel claims innately present a different problem than the right to counsel attachment analysis. courts should, therefore, deal with an ineffective assistance of counsel claim differently than, and separately from, the attachment analysis. ineffective assistance of counsel is retrospective—no ex ante clarity is necessary. this is because ineffective assistance of counsel does not become a problem until conviction. this would be true for pre-indictment ineffective assistance of counsel claims as well. it is not about setting rules beforehand, but more like bringing a gun to a gun fight when the gun’s trigger malfunctions, causing a fatal ending for the defendant. so, though courts are concerned with ex ante clarity for right to counsel cases, courts cannot and do not need to have the same concerns when providing relief for ineffective assistance of counsel. to claim that one’s right to effective assistance of counsel was violated, a defendant is required to show that (1) there is a deficient performance by counsel and (2) the deficiency prejudiced the defendant.139 the standard implies that the right can only be reviewed retrospectively and is factually dependent. the reviewing court is not permitted to conjecture whether counsel will be defective and prejudice the defendant. the fact that there needs to be retrospective review is simply a byproduct of what the claim is supposed to protect and rectify. significant consideration must be paid to the different contexts in which the right to counsel and ineffective assistance of counsel strands of the sixth amendment arise in order to understand the different administrative concerns. most right to counsel claims are brought to suppress evidence and so are 139 strickland v. washington, 466 u.s. 668 (1984). 348 columbia journal of race and law [vol. 9:2 raised before conviction and sometimes before trial.140 for example, a lineup that happens post-indictment without a lawyer present cannot be introduced at trial.141 ineffective assistance of counsel claims, instead, are usually brought only after the defendant loses his or her case. first, defendants cannot raise the claim in most state proceedings until collateral review or in federal habeas claims.142 second, if the defendant is not convicted, then the deficient performance becomes moot. proving prejudice becomes insurmountable when a defendant is acquitted. the prejudice prong is easier to review when a defendant is convicted because a court is reviewing specific action taken by counsel already present and its impact on the adverse outcome. moreover, no matter what concerns a court may have about the effectiveness of counsel, the concerns are inconsequential if the defendant is not convicted. in fact, the sole concern the court addresses in strickland is that courts can only review whether counsel was deficient with the benefit of hindsight, and the court clearly stated that performance must be viewed from the lens of counsel’s perspective at the time.143 140 see beth g. hungate-noland, texas v. cobb: a narrow road ahead for the sixth amendment, 35 u. rich. l. rev. 1191 (discussing the supreme court’s exclusionary rule for evidence obtained in violation of the right to counsel). 141 see united states v. wade, 388 u.s. 218 (1967) (holding that the use of a post-indictment lineup violated the defendant’s sixth amendment right and could not be used at trial, but remanding for review the issue of the admissibility of an in-court identification by the same witness). 142 see generally eve brensike primus, structural reform in criminal defense: relocating ineffective assistance of counsel claims, 92 cornell l. rev. 679 (2007) (arguing that only allowing a defendant to raise an ineffective assistance of counsel claim in a collateral review hearing is inadequate); see also eve brensike primus, effective trial counsel after martinez v. ryan: focusing on the adequacy of state procedures, 122 yale l.j. 2604 (2013) (reviewing the effect of a supreme court case that allowed for ineffective assistance of counsel in state court to be raised in federal habeas claims). 143 strickland, 466 u.s. at 689. no. 3:323] broader sixth amendment protections 349 1. the supreme court has adopted retrospective review in ineffective assistance of counsel claims under the sixth amendment within the plea negotiation context, illustrating the necessity of applying this approach to plea negotiations the court needs to adopt retrospective review of ineffective assistance of counsel during plea bargaining for similar reasons. the problem of ineffective assistance of counsel is not an issue until a plea deal is reached and entered. furthermore, and significantly, there are no ex post concerns because the remedy afforded for deficient plea negotiation advice does its best to rectify the prejudice the defendant received. the supreme court has accepted ineffective assistance of counsel claims pertaining to advice given during post-indictment plea negotiations.144 hill v. lockhart is the first example of this. the hill court was forced to apply an inherently retrospective standard. hill’s court-appointed attorney negotiated a plea deal in which the prosecutor would recommend a thirty-five-year sentence to be served concurrently and the judge accepted both the plea and the sentence recommendation.145 this negotiation appeared seamless until hill was informed that because he was a formerly convicted felon, he must serve one-half of his sentence to become eligible for parole compared to the one-third he was told he would need to serve by his attorney.146 hill’s counsel wrongly advised hill about this issue, and hill then claimed 144 this was done in a string of cases. see lafler v. cooper, 566 u.s. 156 (2012) (holding that cooper was prejudiced by counsel’s deficient performance after rejecting a guilty plea); missouri v. frye, 566 u.s. 134, 145 (2012) (holding that “defense counsel has the duty to communicate formal offers from the prosecution” and that as a result, counsel was deficient in failing to communicate to defendant prosecutor’s written plea before it expired); hill v. lockhart, 474 u.s. 52 (1985) (holding in part that the strickland v. washington test for evaluating claims of ineffective assistance of counsel applies to guilty plea challenges based on ineffective assistance of counsel). 145 hill, 474 u.s. at 54 (“the trial judge accepted the guilty plea and sentenced petitioner in accordance with the state’s recommendations.”). 146 id. 350 columbia journal of race and law [vol. 9:2 ineffective assistance of counsel.147 the hill court held that the standard was not just proving counsel was deficient, but that a defendant would need to show he would have foregone accepting the plea and gone to trial but for the deficient performance148—a standard that requires review only post-plea deal.149 the supreme court’s acceptance of retrospective review within the plea context is true for plea deals that are not accepted as well. indeed, this was the case in lafler v. cooper and missouri v. frye.150 the court can, therefore, readily apply retrospective review to pre-indictment plea negotiations. the court applies the same strickland analysis when reviewing ineffective assistance of counsel claims when a defendant pleads that his counsel’s deficient performance led to a lapse or denial of a plea deal.151 as previously noted, what is particularly interesting about the precedent within this specific context is the remedy courts may impose. that is, courts can essentially compel the state to reoffer the plea deal.152 this remedy is extraordinary. it fixes any issues with the defective counsel by providing what would have been the outcome if not for defense counsel’s prejudicial performance. remedies for right to counsel do not provide this fix. instead, they simply remand for a new trial without knowing what the outcome would have been. this available remedy cannot adequately address the issue of a lay defendant facing a prosecutor alone, no matter how responsible and ethical the prosecutor. instead of clarifying when a lawyer must be present, a court reviewing ineffective assistance of counsel can use a case-by-case basis to look for 147 id. at 55 (“according to petitioner, his attorney had told him that if he pleaded guilty he would become eligible for parole after serving onethird of his prison sentence. in fact, because petitioner previously had been convicted of a felony in florida, he was classified under arkansas law as a ‘second offender’ and was required to serve one-half of his sentence before becoming eligible for parole.”). 148 id. at 59–60. 149 this note is not discussing conflict of interest claims, which are brought under the sixth amendment effective assistance of counsel strand. 150 lafler v. cooper, 566 u.s. 156 (2012) (holding that cooper was prejudiced by counsel’s deficient performance after rejecting a guilty plea); missouri v. frye, 566 u.s. 134, 145 (2012) (holding that “defense counsel has the duty to communicate formal offers from the prosecution” and that as a result, counsel was deficient in failing to communicate to defendant prosecutor’s written plea before it expired). 151 strickland v. washington, 466 u.s. 668, 687 (1984). 152 lafler, 566 u.s. at 166. no. 3:323] broader sixth amendment protections 351 the lapse or denial of a plea offer and offer a just remedy. this is an appropriate remedy even when the defendant had a full trial.153 understanding the significance of plea deals in the criminal justice system, the court decided to extend ineffective assistance of counsel protections to post-indictment plea negotiations.154 the nature of these claims force retrospective review, making any right to counsel attachment analysis irrelevant, and the remedies provided make any ex ante concerns moot. this analysis can be extended to pre-indictment negotiations. post-indictment negotiations are not different than pre-indictment negotiations, except for the mere formality of an indictment. ineffective assistance of counsel claims for post-indictment are analyzed retrospectively. this analysis can be easily applied to pre-indictment plea deal negotiations. courts would still be asked to review pre-indictment plea negotiations post-conviction—the ill-advice provided preindictment would still drive post-indictment outcomes. there is nothing inherent to pre-indictment plea negotiations that make their review for deficient counsel different than that of negotiations detached from right to counsel in the postindictment context. c. the significance of retrospective review in ineffective assistance of counsel claims: different strands and applications of the sixth amendment the fact that the court applies a retrospective analysis detached from a right to counsel analysis is significant because it indicates that the court applies the strands of the sixth amendment differently according to the concerns each raises. the sixth amendment provides that in “all criminal prosecutions” a defendant will “have the assistance of counsel for his defense.”155 the supreme court has articulated three different rights that are inherent in the right to have “assistance of counsel”: (1) the right to an attorney, including the right to publicly appointed counsel; (2) the right to effective assistance 153 id. at 174. 154 frye, 566 u.s. at 143 (“ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”). 155 u.s. const. amend. vi. 352 columbia journal of race and law [vol. 9:2 of counsel; and (3) the right to counsel of one’s choice.156 thus, ineffective assistance of counsel is analyzed as an independent strand of the sixth amendment. the supreme court created a distinction between different strands of the sixth amendment in united states v. gonzalez-lopez.157 gonzalez-lopez concerned the sixth amendment’s promise that a criminal defendant has not just the right to counsel, but a right to counsel of one’s choice.158 gonzalez-lopez was charged with conspiracy to distribute marijuana and tried to replace the attorney his family hired with an attorney of his own.159 this attorney applied for admission pro hac vice three times, but the district court denied him the ability to represent gonzalez-lopez each time.160 the eighth circuit found that the district court erroneously deprived gonzalez-lopez of the counsel of his choice and vacated the conviction.161 the supreme court upheld the eighth circuit’s order, but justice scalia, writing for a majority of the court, took pains to explain that the right to counsel and the right to counsel of one’s choice are different strands of the sixth amendment that are distinct from the right to effective assistance of counsel.162 the government argued that a defendant who claims he was deprived of the right to counsel of his choice should not obtain a remedy unless he can show that his actual attorney was ineffective.163 the court, however, stated that erroneous deprivation of counsel bears directly on the framework within 156 see united states v. gonzalez-lopez, 548 u.s. 140 (2006) (holding that the right to counsel includes the right to counsel of one’s choice); strickland, 466 u.s. 668 (discussing the right to effective assistance of counsel); gideon v. wainwright, 372 u.s. 335, 345 (1963) (discussing the right to counsel in criminal proceedings). 157 gonzalez-lopez, 548 u.s. 140 (holding that the defendant not only had the right to counsel but also a right to counsel of his choosing). 158 id. at 144; see also u.s. const. amend. vi. (“in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.”). 159 gonzalez-lopez, 548 u.s. at 142. 160 id. at 142–43 (finding that the district court not only denied low the ability to represent the defendant, but issued sanctions against him). 161 id. at 143. 162 id. at 147 (“the right to select counsel of one’s choice, by contrast, has never been derived from the sixth amendment’s purpose of ensuring a fair trial.”). 163 id. at 144. no. 3:323] broader sixth amendment protections 353 which trial proceeds.164 it is impossible to know how the trial would have proceeded if conducted by entirely different counsel, similar to ineffective assistance of counsel. the court then highlighted that the right to counsel of one’s choice raises different concerns than effective assistance of counsel.165 with these concerns in mind, the right to counsel of one’s choice does not require a “prejudice inquiry.”166 the court granted the defendant a new trial without deciding if the defendant was prejudiced by not being represented by his counsel of choice.167 the facts of this case show the different administrative and justice concerns the court has in dividing the different kinds of relief under the sixth amendment.168 lower courts have also divided the right to counsel from the right to effective assistance of counsel.169 in a class action case brought by previously convicted defendants against the state of new york, for example, defendants claimed that their sixth amendment rights were violated and sought to overhaul the state’s public defense system.170 at the time of their arraignment, the class members had not been appointed an attorney, nor did they have an attorney at “subsequent proceedings.”171 some went unrepresented for five or more months.172 additionally, some defendants could never contact their attorney and had various motions and waivers filed on their behalf without being informed or consenting.173 the claim was filed post-conviction, so the trial court found the claim to be a violation of their right to effective assistance of counsel. the court found the systemic relief sought inapplicable and denied the claim.174 164 id. at 148. 165 id. at 144. 166 id. at 148. 167 id. 168 id. at 144. 169 see, e.g., hurrell-harring v. state, 930 n.e.2d 217 (n.y. 2010). 170 id. at 219. 171 id. at 222. 172 id. (finding that this general issue was true for ten out of the twenty plaintiffs). 173 id. 174 id. at 220. 354 columbia journal of race and law [vol. 9:2 the new york court of appeals construed the complaint as claiming that new york violated plaintiffs’ right to counsel.175 first, the court summarized the different strands of the sixth amendment and how each raised different concerns to provide different relief.176 the court then found this claim wholly different from effective assistance of counsel, both in the nature and the type of relief that can be granted.177 the court stated that “[g]iven the simplicity and autonomy of a claim for nonrepresentation, as opposed to one truly involving the adequacy of an attorney’s performance, there is no reason . . . why such a claim cannot or should not be brought without the context of a completed prosecution.”178 the court then construed the claim as one for a violation of a right to counsel rather than one for ineffective assistance of counsel.179 this may have been motivated by the clarity of applying the bright-line rule under the right to counsel law.180 hurrell-harring and gonzalez-lopez illustrate the legal fiction that the sixth circuit relies on in turner v. united states. courts can separate the different strands of the sixth amendment and provide relief depending on which strand is violated. while dicta in gonzalez-lopez supports this claim, hurrell-harring is an example of a court providing relief under the sixth amendment based on the facts of the case and the different concerns under the different sixth amendment strands. the new york court of appeals separated strands of the sixth amendment according to different concerns. the variance of concerns with regard to ineffective assistance of counsel attachment highlight why the sixth amendment tension in reviewing pre-indictment plea deals should be eradicated. the court should not deprive a defendant of the effective assistance of counsel strand of the sixth amendment when the concerns it wants to guard against are present. by understanding that the concerns regarding ineffective representation 175 id. at 222 (“the above summarized allegations, in our view, state cognizable sixth amendment claims.”). 176 id. at 221–22. 177 id. at 225–26. 178 id. 179 id. at 222–24. (“these allegations state a claim, not for ineffective assistance under strickland, but for basic denial of the right to counsel under gideon.”). 180 see id. at 225 (noting that analysis of the right to counsel is not a fact-intensive inquiry). no. 3:323] broader sixth amendment protections 355 in pre-indictment plea negotiations are the same as for postindictment plea negotiations, courts can afford to give ineffective assistance of counsel relief within this context. d. the court should be wary of the impact of the current tension between the attachment of the right to counsel and ineffective assistance of counsel pre-indictment on poor people and minorities in addition to recognizing that it can justify applying a strand of the sixth amendment and extend sixth amendment relief to pre-indictment plea negotiations based on different administrative concerns, the supreme court should also consider the impact the current lack of protection has on poor and minority communities.181 the facts of turner indicate the circumstances under which this problem is more likely to arise. consider a scenario expanding on the facts in turner: an indigent defendant is investigated and indicted on a state aggravated robbery charge. she is appointed a state public defense attorney who begins to create a defense for her trial. the state eventually passes the case on to federal prosecutors, and so additional federal charges based on the same conduct may potentially be filed, but no indictment is filed yet. the federal prosecutor decides to reach out to the state-appointed attorney to discuss plea negotiations pre-indictment. meanwhile, the state attorney is working hard on the defendant’s case, but the attorney is overworked, as is often the case, with a caseload straining the attorney’s means and resources. the state-appointed attorney fails to communicate the plea negotiations—which resulted in a fifteen-year plea deal offer—to the defendant. this deficient counsel effectively seals the defendant’s fate in the federal charges. after she gets indicted on the federal crime, the defendant is appointed a federal 181 for additional arguments for extending the sixth amendment to the pre-indictment context, see mulroy, supra note 22 (arguing that the court’s language in its opinions offer up an ability to extend the sixth amendment to pre-indictment situations, and that fairness requires extending the sixth amendment). see generally breslow, supra note 41 (arguing that the court’s dicta gives way for extending the sixth amendment specifically to pre-indictment plea bargaining). 356 columbia journal of race and law [vol. 9:2 defense attorney.182 the federal prosecutor decides to take the original, more lenient pre-indictment plea deal off the table. the new, and perhaps better, attorney cannot fix what the previous attorney did. the defendant eventually accepts a plea deal of twenty-five years.183 the advice from the first attorney prejudiced her outcome, but the defendant probably does not have a claim; she did not have a right to counsel in her federal case and therefore had no right to effective assistance of counsel pre-indictment. this situation—an indigent defendant undergoing state proceedings and a state-appointed public defender and then subsequent federal charges with a change of representation— is not merely hypothetical.184 though it affects a limited class of people (and the right to counsel is a more widespread issue), the injustice in pre-indictment proceedings still exists and will continue to exist unless addressed. it is well-documented that federal law has criminalized many acts that used to be solely 182 because the state public attorney system is funded and operated differently than the federal public defense system, the defendant most likely will need a different attorney for each case. see wolf harlow, supra note 16, at 3. 183 this was the case in turner v. united states, 848 f.3d 767 (6th cir. 2018). 184 see, e.g., lisa l. miller & james eisenstein, the federal/state criminal prosecution nexus: a case study in cooperation and discretion, 30 law & soc. inquiry 239, 240 (2005) (recounting a criminal defendant who could have been prosecuted in state court but was instead prosecuted in federal court and arguing that this scenario is an outgrowth from statefederal prosecutor cooperation); michael m. o'hear, national uniformity/local uniformity: reconsidering the use of departures to reduce federal-state sentencing disparities, 87 iowa l. rev. 721 (2002) (recounting that two criminal defendants were charged with the same crime, but federal prosecutors dropped the charges on one because of state court proceedings yet continued prosecuting the other, which led to the former defendant receiving probation and the latter receiving thirteen months in prison). no. 3:323] broader sixth amendment protections 357 state crimes.185 there is a large (and growing) amount of criminal conduct that can expose a defendant to two different criminal trials—state and federal. this over-federalization also increases the likelihood of turner outcomes. in fact, cases similar to turner—state trial and subsequent federal charges—are not difficult to find.186 what is more concerning is that there is an increasing amount of cooperation between federal and state prosecutors, especially because federal sentences are harsher.187 this will only create more cases with facts like turner and leave indigent defendants without sixth amendment relief when there is a possibility they will need it. in fact, “90 to 95 percent of [public defenders’] clients plead guilty.”188 further, this plea negotiating is not limited to post-indictment negotiations.189 the current climate is ripe for indigent defendants to face turner situations. unfortunately, the unfairness in the current system also falls unevenly along racial lines. 1. racial implications the racial fabric of the criminal justice tapestry is profound, and excluding sixth amendment relief from pre-indictment plea negotiations serves to perpetuate this systemic 185 sara sun beale, too many and yet too few: new principles to define the proper limits for federal criminal jurisdiction, 46 hastings l.j. 979, 980 (1995) (proposing a principle for how to limit federalization); steven d. clymer, unequal justice: the federalization of criminal law, 70 s. cal. l. rev. 643, 647 (1997) (“as a result of the growth of federal criminal law, much criminal conduct is now subject to federal as well as state prosecution.”); michael a. simmons, prosecutorial discretion and prosecution guidelines: a case study in controlling federalization, 75 n.y.u. l. rev. 893, 897 (2000) (“there is no doubt that many federal criminal statutes cover conduct that is usually (and has traditionally been) prosecuted by state and local authorities.”). 186 see miller & eisenstein, supra note 184. 187 id. (arguing that federal-state prosecution cooperation is growing considerably). 188 lee et al., supra note 21. 189 see, e.g., turner v. united states, 885 f.3d 949 (6th cir. 2018). 358 columbia journal of race and law [vol. 9:2 issue.190 scholarship on the significant racial disparities is plentiful.191 for instance, one study found that “african americans are incarcerated in state prisons at a rate that is 5.1 times the imprisonment of [w]hites.”192 another study found that [i]n 2014, african americans constituted 2.3 million (34 percent) of the total 6.8 million prison population in the u.s. . . . and although african americans and hispanics made up approximately 32 percent of the u.s. population, they comprised 56 percent of all incarcerated people in the u.s. in 2015.193 this disparity exists in a world where plea deals are the usual disposition of a case, pre-indictment plea deals included. studies demonstrate that african american defendants are not only forced into more plea bargains, but they receive harsher plea deals. one study, for example, examined racial disparities in the plea-bargaining process in wisconsin and found startling results: white defendants are twenty-five percent more likely than [b]lack defendants to have their most serious initial charge dropped or reduced to a less severe charge . . . . as a result, [w]hite defendants who face initial felony charges are approximately fifteen percent more likely than [b]lack defendants to end up being convicted of 190 see michelle alexander, the new jim crow: mass incarceration in the age of colorblindness 13 (2010) (“[m]ass incarceration operates as a tightly networked system of laws, policies, customs, and institutions that operate collectively to ensure the subordinate status of a group defined largely by race.”). 191 see, e.g., jessica eaglin & danyelle solomon, reducing racial and ethnic disparities in jails: recommendations for local practice 13 (2015) (“[nationally,] african americans and hispanics are significantly overrepresented in jails.”). 192 ashley nellis, the sentencing project, the color of justice: racial and ethnic disparity in state prisons 3 (2016), https://www.senten cingproject.org/wp-content/uploads/2016/06/the-color-of-justice-racial-andethnic-disparity-in-state-prisons.pdf [https://perma.cc/wd6d-6qqn] (citing statistics from the bureau of justice). 193 michael kiehne, why diversity still matters, 96 mich. bar j. 22, 24 (2017) (footnote omitted). no. 3:323] broader sixth amendment protections 359 a misdemeanor instead. in addition, [w]hite defendants initially charged with misdemeanors are approximately seventy-five percent more likely than [b[lack defendants to be convicted for crimes carrying no possible incarceration, or not to be convicted at all.194 wisconsin is not an outlier. in new york city, african american defendants are nineteen percent more likely to be offered a plea deal that includes jail or prison time; the disparity is even more significant for misdemeanor drug offenses.195 furthermore, the racial disparities in outcomes exist in a context in which african americans are more likely to rely on a public defender in felony cases than white defendants.196 these statistics have grave implications. first, african americans are more prone to turner situations. with the increased federalization of crime, turner situations are not only made more likely, but there is also a reasonable assumption that these situations will likely fall along the current racial lines in the criminal justice system. the federalization of crimes is not implemented in a way that will stop the current systemic racial injustice. second, turner situations can be seen as exacerbating the racial disparities in plea outcomes. given that african americans face harsher plea deals, there is no reason to think that the harsher plea deals happen only post-indictment.197 therefore, it is likely that these disparities will happen preindictment and could be the result of ineffective assistance of counsel—turner received a sentence that was ten years longer 194 berdejó, supra note 24, at 1191 (footnotes omitted). 195 besiki kutateladze et al., vera inst. of justice, race and prosecution in manhattan 7 (2014), http://archive.vera.org/sites/default/files /resources/downloads/race-and-prosecution-manhattan-research-summaryv2.pdf [https://perma.cc/hrr2-zzwe]. 196 christopher hartney & linh vuong, nat’l council on crime & delinquency, created equal: racial and ethnic disparities in the us criminal justice system 14 (2009). in 2009, for example, it was found to be 4.7 times more likely. id. 197 there is very little data on the nature of plea deals and what offers were rejected or when in the criminal proceeding the plea was offered. see nat’l ass’n of criminal def. lawyers, the trial penalty: the sixth amendment right to trial on the verge of extinction and how to save it 16 (2018), https://bit.ly/2m9qir1 [https://perma.cc/l29b-qzk6] (finding that data about plea offers is largely unavailable “[b]ecause plea negotiations are off the record and because most cases plead out”). 360 columbia journal of race and law [vol. 9:2 than what he would have received with effective counsel. currently, when poor african american defendants are placed in a turner situation, they are not afforded a remedy after their attorney gives bad advice that leads to a high likelihood of a harsher plea deal. affording relief for ineffective assistance of counsel during pre-indictment plea negotiations is a way for courts to begin to rectify this racial injustice, allowing african american defendants to at least gain some sort of relief when their counsel’s ineffective advice leads to a disproportionate plea deal. iv. extending the sixth amendment right to effective assistance of counsel the court should give a defendant the right to effective assistance of counsel whenever a prosecutor enters into preindictment plea negotiations and a defendant is represented in some capacity.198 this proposed rule provides an ineffective assistance of counsel claim for all defendants who need it; if a defendant has an attorney in any capacity (for example, she has a state attorney pre-indictment for any potential charges), she has the right to effective assistance of counsel. the solution resolves the current sixth amendment tension based on the above administrative concerns with an eye toward the current injustice forced upon the indigent and racial minorities. any of the existing remedies already offered for ineffective assistance of counsel within the plea context could be the remedy provided for ineffective assistance pre-indictment. indeed, when deficient counsel results in a defendant accepting a less desirable plea, a court can control the remedy by vacating the plea and ordering the parties to renegotiate or go to trial.199 if the ineffective counsel fails to inform the defendant or leads the defendant to reject a favorable plea, lower courts have more discretion, depending on whether the plea led to a harsher sentence or a harsher charge. if it is the former, then a court can simply impose a new sentence reflecting the original plea; 198 a similar rule was proposed before but was broader in scope, focused on the right to counsel, and included interrogations by a prosecutor as well. see mulroy, supra note 22, at 241–42 (proposing extending the right to counsel when considering the potential arbitrariness in courts’ opinions when implementing the current bright-line rule). 199 see lee v. united states, 137 u.s. 1958, 1969 (2017) (vacating the plea deal and therefore requiring prosecutors to renegotiate). no. 3:323] broader sixth amendment protections 361 if it is the latter, then a court can require the prosecutor to reoffer the original plea with the lesser charge.200 the remedies for these claims already exist and should be applied to the preindictment plea negotiation context as well. a. the proposed rule is not an affront to the concerns raised for right to counsel in preindictment contexts the rule is not an affront to ex ante clarity concerns raised in right to counsel cases. first, ex ante concerns are not relevant when analyzing an ineffective assistance of counsel claim. they pose different problems than the right to counsel, and so the current friction ought not to exist and a remedy should be afforded. second, there is still a clear, bright-line rule for when the relief should be available. prosecutors and courts will know beforehand whether a defendant can seek relief based on an accepted plea deal or a plea deal that lapsed. there is no ambiguity in the specificity of the proposed extension of the sixth amendment. significantly, the proposed rule is also workable for states. the rule does “not require that the state actually furnish counsel any earlier in the process than it currently does.”201 instead, the rule allows prosecutors and defense counsel to face the same consequences they would face for their actions within a specific context without regard to whether a charge has been brought or not. it also eliminates any incentive for prosecutors to use their leverage when a defendant is most vulnerable and eliminates incentives to delay a formal charge.202 furthermore, the court would not be interfering with ubiquitous investigation tactics. to be clear, this note is not concerned with police conduct; it instead focuses on the injustice that prosecutors may engage in pre-indictment plea negotiations with defense attorneys who may fail to give effective counsel, while affected defendants are not provided constitutional 200 lafler v. cooper, 566 u.s. 156, 170–71 (2012). 201 mulroy, supra note 22, at 242 (citing colbert, supra note 91, at 334 (finding that states continue to delay when they appoint counsel despite the court’s ruling in rothgery)). 202 see mulroy, supra note 22, at 247. 362 columbia journal of race and law [vol. 9:2 protection and thus are not provided relief.203 once a prosecutor enters the picture and begins plea negotiations, one might assume that there is already damning evidence against the defendant. defense counsel must not be able to escape her ineffectiveness and leave a defendant ill-informed of her options and chances at trial. as shown, the court considers how it will interfere with daily investigation tactics when reviewing preindictment sixth amendment right to counsel cases. yet, once a prosecutor enters plea negotiations, this concern should be moot because ideally, if a prosecutor is offering a plea, the investigation should have already produced convincing evidence. pre-indictment plea negotiations are no different, administratively, from when courts review whether counsel was ineffective or not during post-indictment plea negotiations. the court must, and does, look retroactively at whether counsel was deficient within the latter context, and so it should not be concerned in doing so for pre-indictment plea negotiations. essentially, no new law is being created. courts already know how to analyze the claim.204 b. the proposed rule is not an affront to sixth amendment precedent the previous discussion shows that courts consistently separate the different strands of the sixth amendment and consider the different administrative issues each strand poses. more importantly, courts will apply the sixth amendment strands differently based on these divergent administrative concerns and the particular administrative issues a case raises. courts have even gone as far as construing a complaint to fit within this framework and therefore finding a complaint judicially cognizable.205 203 relief depends only on whether the plea was done voluntarily, knowingly, and with a factual basis. see fed. r. crim. p. 11(b). it can be argued that pre-indictment plea deals violate this rule, but that argument most likely fails. 204 the courts have decided to entertain ineffective assistance of counsel claims during plea bargaining, and this note does not argue that ineffective assistance of counsel during pre-indictment plea bargaining is different than the claims courts review now. see, e.g., lafler, 566 u.s. at 162– 63. 205 hurrell-harring v. state, 930 n.e.2d 217, 222 (n.y. 2010). no. 3:323] broader sixth amendment protections 363 therefore, applying sixth amendment ineffective assistance of counsel relief to pre-indictment plea negotiations does not undercut precedent in other pre-indictment contexts. providing this constitutional relief instead would help address the court’s overall fairness concern in most sixth amendment cases—protecting the lay defendant. lay defendants, who are often poor and african american, with deficient counsel should not have to wait until a formal charge is brought to have relief for the unfairness they faced, especially when plea bargaining dominates the criminal justice system.206 in fact, if the court does not extend sixth amendment relief, the concerns the court addresses with a bright-line rule in right to counsel cases become arbitrary. c. extending ineffective assistance of counsel protects indigent individuals and racial minorities and creates a more fair and just criminal justice system current law threatens the legitimacy of the criminal justice system because it leaves poor, african american defendants without constitutional protections in a context where they most need them. extending the sixth amendment to preindictment plea negotiations can be another tool in improving the criminal justice system in order to ensure that the system is not taking advantage of indigent, african american defendants. though the rule would also benefit wealthy defendants, it would not allow wealthy defendants to guard against routine investigation tactics; lineups and interrogations can still be conducted as they always have been. yet, when a federal prosecutor begins to alter the availability of the best outcome for rich and poor defendants with pending state charges, poor, african american defendants will now not have to wait to have the right to counsel and appointed counsel in the federal charge to gain relief if later advice leads to a harsher plea deal or they are left without a plea deal at all. the court will not just be protecting indigent defendants, but can judicially help address an issue that plagues society today—racial discrimination in the criminal justice system. there are positive policy implications when the right to counsel is extended to preindictment plea deals. 206 lee et al., supra note 21. 364 columbia journal of race and law [vol. 9:2 d. limitations to the proposed rule the proposed rule does have limits. its first limit is how much it could help poor, minority defendants. the proposed rule still leaves poor, minority defendants without relief if there is no defense attorney involved. this is a weaker part of the proposal and limits the number of people impacted by the rule. however, this would require a change to when the right to counsel attaches, and this note does not present that argument. the proposed rule still makes an impact and begins to afford constitutional remedies to people who need it.207 it could also be argued that the rule does very little in terms of any real impact because it could be circumvented by the supreme court’s fifth amendment precedent; the police might easily skirt the rule and still disadvantage poor and minority defendants. a police officer, while perhaps unable to officially enter plea negotiations, can interrogate a defendant and persuade the defendant to plead with the prosecutor. the proposed change in the law does not address the police officer conduct that can negatively influence a defendant before any attorney becomes involved in the case. this conduct is regulated by the fifth amendment and thus outside of the scope of this note. there may be fifth amendment arguments that suffice for addressing the limited reach of the rule. given the considerable advantages of the proposed rule, however, it should be adopted. e. opposition to extending sixth amendment relief this proposed rule could raise serious opposition. the most significant concern is that this proposed change requires the case to be heard by the supreme court, which must in turn rule in a way that provides for the proposed relief. however, it should be noted that the modification does not depend on judicial action. instead, the prosecutorial ethics rules could be modified to effectively ban plea bargaining pre-indictment.208 207 for example, it would have provided relief for john turner in turner v. united states, 885 f.3d 949 (6th cir. 2018). 208 current ethics rules within the pre-indictment context only deal with right to counsel issues and not when a lawyer is present and defending his client. model rules of prof’l conduct r. 4.2 (am. bar ass’n 2014). no. 3:323] broader sixth amendment protections 365 this is similar to the “no-contact” rule in federal and most state ethics rules, which requires that “a lawyer shall not communicate about the subject of [a] representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”209 some courts have interpreted this rule to mean that prosecutors cannot contact a represented defendant pre-indictment without having the defendant’s lawyer present.210 these ethical rules impact right to counsel issues because they still protect the ex ante concerns the court considers in its attachment analysis.211 a blanket rule forbidding pre-indictment negotiations all together does not adequately address the issues raised by turner situations. this proposed ethics rule change is not practical because pre-indictment plea negotiations should not be banned.212 while arguing for plea bargaining is not central to this note, the efficiency of plea bargaining at any stage is exemplified by alaska’s experiment banning plea bargaining post-indictment: the ban simply pushed plea deals to the preindictment charging stage through a loophole in the law.213 prosecutors were not willing to give up a tool that made it more efficient to do their jobs. courts have also respected the efficiency of plea bargaining.214 it is hard to conceive that prosecutors would forego plea bargaining at any stage of the process, and banning efficient tools should not be supported. in fact, sophisticated defendants with more resources find it 209 id. 210 see salvatore, supra note 133, at 579. 211 these ethical rules are right to counsel issues because they still protect the ex ante concerns the court has in attachment issues. see id.; united states. v. hammad, 846 f.2d 854, 859 (2d cir. 1988) (holding that the rule does not preclude routine investigation tactics). 212 see white carns & kruse, supra note 22, at 30. 213 id. 214 instead of courts banning plea bargaining, they have simply extended rights to post-indictment plea bargaining. see, e.g., lafler v. cooper, 566 u.s. 156 (2012). 366 columbia journal of race and law [vol. 9:2 very useful to bargain pre-indictment.215 indigent defendants may not have this opportunity as often, but this should not inhibit their ability to negotiate pre-indictment when the opportunity presents itself. when the less fortunate have the possibility to negotiate pre-indictment with counsel present, they should have the right for that counsel to be effective. additionally, there is the critique that the text of the sixth amendment is why a bright-line rule exists, and therefore no sixth amendment relief can be sought until a formal charge or a hearing in front of a judge.216 at first glance, this makes sense. the word “prosecution” in the sixth amendment seems to delimit when the sixth amendment can be applied to certain formal actions. not only does the text of the sixth amendment intuitively imply some formal case being brought before any of its right attach, but the history of the sixth amendment also leads courts to this interpretation.217 the colonists were focused on conducting fair trials, and the “continental congress asserted each citizen’s right to assistance of counsel in criminal trials.”218 this is because trials were taken for granted—criminal cases would usually have a trial.219 therefore, it seems fair for there to be a formal charge before any sixth amendment rights attach because defendants could always protect themselves at trial. in fact, some argue that the right to counsel is simply a sixth amendment clause used to “breathe life into” the other promises the sixth amendment 215 a new york times article discussed the benefits of pre-indictment plea negotiating when discussing the paul manafort indictment: “prosecutors bypassed the common justice department practice of inviting lawyers to meet and discuss potential indictments beforehand, often an opportunity for the defense to argue for leniency and for prosecutors to identify potential holes in their case.” matt flegenheimer, andrew weissmann, mueller’s legal pit bull, n.y. times (oct. 31, 2017), https://www.nytimes.com/2017/10/31/ us/politics/andrew-weissmann-mueller.html [https://perma.cc/l7e8-xtfj]. 216 united states v. gouveia, 467 u.s. 180, 188 (1984) (“that interpretation of the sixth amendment right to counsel is consistent . . . with the literal language of the amendment, which requires the existence of . . . a ‘criminal prosecutio[n]’ . . . .”). 217 see metzger, supra note 127, at 1637 (reviewing the development of the supreme court’s right to counsel precedent and highlighting the court’s desire to protect lay defendants). 218 id. at 1640. 219 id. at 1639–40 (stating that the colonists were always concerned with putting up a legitimate and fair defense at trial). no. 3:323] broader sixth amendment protections 367 guarantees—all except one, notice of charges, deal with rights during trial.220 history suggests that the text of the sixth amendment was concerned with the adversarial process seen on television— lawyers arguing in court in front of a jury or judge. this is not the current context, however, and the court has also understood the changes in the modern criminal justice system.221 the court has extended the right to effective assistance of counsel to plea deals, despite the opportunity to have a fair trial, because “[t]he reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process.”222 the current criminal justice system is very different from the system that existed when the framers drafted the sixth amendment. so, the textual concerns the court expresses when drawing the bright-line rule in the pre-indictment context is unwarranted for ineffective counsel during pre-indictment plea negotiations. if the supreme court is going to condone plea bargaining and include it in its interpretation of a “criminal prosecution,” then extending the ineffective assistance of counsel strand of the sixth amendment to pre-indictment plea deals is no affront to the sixth amendment’s text. v. conclusion sixth amendment right to counsel law appears at odds with providing any meaningful relief for defendants who enter into pre-indictment plea negotiations. a bright-line rule exists that may preclude sixth amendment relief for any preindictment conduct. yet, sixth amendment law has various strands that all raise different administrative concerns. whereas right to counsel apparently requires ex ante clarity, courts review whether counsel was ineffective ex post. this is because of the various administrative concerns the different rights raise. however, these administrative concerns have also forced courts to pull apart the sixth amendment, applying it differently in different contexts, and even construing complaints in a manner that fits these varied concerns. 220 id. at 1640 (citing akhil reed amar, the constitution and criminal procedure: first principles 139 (1997)). 221 see missouri v. frye, 566 u.s. 134, 143 (2012). 222 id. 368 columbia journal of race and law [vol. 9:2 fairness and justice require the supreme court to resolve the tension between current sixth amendment right to counsel doctrine and pre-indictment plea deal practices. plea bargaining is a daily aspect of the criminal justice system and can happen pre-indictment. yet, the criminal justice system must not support outcomes that are more likely to affect indigent defendants. the criminal justice system must not support a system in which african american defendants receive disproportionately harsher plea deals, any of which could happen pre-indictment and have no relief. therefore, there should be sixth amendment ineffective assistance of counsel relief from pre-indictment plea deals. other proposals fail to adequately address the policy implications of the current state of the law, and the proposal in this note is administratively feasible without disrupting precedent. 5 gradilla final (2) 2014 columbia journal of race and law 225 making rights real: effectuating the due process rights of particularly vulnerable immigrants in removal proceedings through administrative mechanisms miguel a. gradilla* immigration removal proceedings provide insufficient due process protections to certain immigrants. vulnerable immigrants who cannot adequately represent themselves are expected to do so even if they cannot afford an attorney or qualified board of immigration appeals (bia) representative. this note argues that the department of justice’s (doj) executive office of immigration review (eoir) can and should pass regulations that safeguard particularly vulnerable immigrants’ due process rights. these regulations should instruct immigration judges (ij) to affirmatively determine whether due process requires that a qualified legal representative—either an attorney or bia representative—advocate for a particularly vulnerable immigrant in a removal proceeding before an ij decides the case on its merits. the rules would constitute an administrative framework that safeguards immigrants’ due process rights. this proposed administrative framework is rooted in a reading of current common and statutory law that allows the attorney general to delegate the necessary authority to ijs to effectuate the suggested regime. i. introduction ………………………………………………………….. 226 ii. the current legal landscape and administrative constitutionalism …………………………………………………... 231 a. agui l e ra -enriquez ’ s case-by-case approach ……………………… 231 * j.d. 2014, columbia law school; b.a. 2007, stanford university. the author would like to thank professor olati johnson for her critical feedback and support in writing this note and for her mentorship and example; ahilan arulanantham, deputy legal director at the aclu of southern california, jennie pasquarella and michael kaufman, staff attorneys at the aclu of southern california, for introducing him to this issue and allowing him to actively learn from them over a summer; his family for their love and unflagging support; and the staff of the columbia journal of race & law for helpful edits and suggestions. effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 226 b. administrative actors and the safeguarding of constitutional rights ………………………………………………………………… 235 iii. at risk immigrant groups ………………………………………… 237 a. categories of detained and particularly vulnerable immigrants … 237 1. mentally incompetent non-citizens ……………………..... 237 2. unaccompanied non-citizen minors ……………………… 239 3. detainees who raise asylum as a defense against removal ……………………………………………………... 240 iv. current efforts to extend access to qualified legal representatives to detained immigrants ……………….. 241 a. the department of justice ………………………………………….. 241 b. the new york deportation defense project ……………………… 242 c. the american bar association ……………………………………... 242 v. moving beyond unworkable: realizing the case-by case approach ………………………………………………………….. 243 a. statutory authority for the proposed administrative framework …………………………………………………………... 244 b. the eldr idge test with a turner gloss …………………………….. 248 c. the administrative framework …………………………………….. 251 d. immigration reform and potential application of the eldr idge test with a turner gloss ……………………………………………. 255 vi. conclusion ……………………………………………………………… 256 i. introduction the 2012 presidential election and its outcome placed the immigration debate front and center on the nation’s policy agenda. president obama, who received seventy-one percent of the latino votes cast in the election as compared to twenty-seven percent for mitt romney,1 promised to tackle what has 1 mark hugo lopez & paul taylor, latino voters in the 2012 election, pew research: hispanic center (2012), http://www.pewhispanic.org/2012/11/07/latino-voters-in-the-2012-election/. 2014 columbia journal of race and law 227 so far proved elusive—comprehensive immigration reform.2 to date, the national conversation about immigration reform has centered on reforming the substantive laws regarding admission into the american polity.3 although the debate and efforts to reform the substantive laws that govern the criteria and process for admission into the american body politic are critical, another essential and intimately related aspect of our immigration system is often overlooked—immigration removal proceedings.4 these proceedings are the adjudicative forums in which individual decisions about an immigrant’s expulsion from or ability to lawfully remain in the united states are made.5 for many years, these hearings have been rife with significant problems. proposals to reform these proceedings have “fallen victim to structural impediments, funding priorities, and vast political chasms.”6 of particular concern is the fact that immigration removal proceedings face deep and systemic issues that threaten their legitimacy, such as not allowing individuals to meaningfully present their case with others’ assistance when they are unable to do so on their own.7 academic commentators and immigrants’ rights advocates have called for changes to this system for many years.8 beyond being overburdened with massive caseloads,9 serious due process concerns cast a dark shadow on the decisions made by immigration judges (“ij”).10 2 see, e.g., elise foley & sam stein, obama promises swift action on immigration in meeting with progressives, huff post: politics (nov. 13, 2012, 7:59 pm), http://www.huffingtonpost.com/2012/11 /13/obama-immigration-action_n_2125625.html (detailing president obama’s plans for immigration reform as expressed in a meeting with progressive leaders); the white house, building a 21st century immigration system (2011), available at http://www.whitehouse.gov/sites/default /files/rss_viewer/immigration_blueprint.pdf (outlining the obama administration’s vision for immigration reform). 3 see, e.g., brett logiurato, marco rubio blasts obama’s leaked immigration proposal as “dead on arrival,” business insider: politics (feb. 17, 2013, 12:42 pm), http://www.businessinsider.com /marco-rubio-obama-immigration-reform-2013-2 (detailing the communication between the white house and some members of congress on the main contours of proposed reforms to the immigration laws, primarily dealing with a pathway to citizenship for undocumented immigrants, enhanced border security, and a guest worker program). 4 although the president’s immigration reform blueprint recognizes the need for improving the immigration courts, building a 21st century immigration system, supra note 2, at 10, it does not address the serious due process issues that arise in some proceedings. moreover, media accounts about immigration reform hardly, if ever, discuss these procedural concerns. see, e.g., foley, supra note 2; logiurato, supra note 3. 5 8 u.s.c. §1229a(a)(3) (2006). 6 stephen h. legomsky, restructuring immigration adjudication, 59 duke l.j. 1635, 1639–1640 (2010). 7 federal article iii judges have decried the quality of the decisions made by immigration judges. benslimane v. gonzales, 430 f.3d 828, 829–30 (2005) (“in the year ending on the date of the argument, different panels of this court reversed the board of immigration appeals in whole or in part in a staggering 40 percent of the 136 petitions to review the board that were resolved on the merits . . . this tension between judicial and administrative adjudicators is . . . due to the fact that the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.”) (emphasis added). 8 see, e.g., legomsky, supra note 6 (advocating for a complete redesign of the immigration adjudication system that would remove the adjudicatory function from the department of justice and transfer it to an independent tribunal within the executive branch, convert immigration judges into administrative law judges, and create a dedicated article iii appellate review court for cases decided by the new administrative tribunal). effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 228 particularly troubling is the fact that the majority of immigrants facing removal hearings proceed pro se in immigration court.11 this is, in part, a result of the lack of a right to appointed counsel for immigrants facing removal proceedings.12 the latest figures available from the department of homeland security (“dhs”) show that immigration and customs enforcement (“ice”) detained 477,523 foreignnationals in 2012, a record number.13 in 2008, sixty percent of all immigrants in the immigration court system and eighty-four percent of detained immigrants had no legal representation.14 given that the laws regarding government appointed counsel in immigration removal proceedings have not changed since 2008, it is likely that the number of unrepresented immigrants is similarly high today. several commentators have argued that a right to appointed counsel should, at a minimum, be extended to certain classes of immigrants facing removal proceedings.15 they often call for asylum 9 alice clapman, hearing difficult voices: the due-process rights of mentally disabled individuals in removal proceedings, 45 new eng. l. rev. 373, 391 (2011) (“because of the volume of cases they confront, ijs [immigration judges] must decide approximately four cases a day, roughly twice as many as social security judges.”). 10 benslimane, 430 f.3d at 829–830. 11 stacy caplow et al., accessing justice ii: a model for providing counsel to new york immigrants in removal proceedings, cardozo l. rev. 4–5 (dec. 2012), available at http://www.cardozolawreview.com /content/denovo/nyirs_reportii.pdf (“in 2010, 57.3 percent of all respondents in removal proceedings nationwide (detained and nondetained) (a total of 164,742 people) appeared in immigration court without counsel.”). the department of homeland security defines the “detention” of an immigrant as, “[t]he physical custody of an alien in order to hold him/her, pending a determination on whether the alien is to be removed from the united states or awaiting return transportation to his/her country of citizenship, after a final order of removal has been entered.” john simanski & lesley m. sapp, department of homeland security, annual report immigration enforcement actions: 2012, 2 (dec. 2013), available at https://www.dhs.gov/sites/default/files/publications /ois_enforcement_ar_2012_1.pdf. interestingly, this definition changed in the span of a year. the 2011 report defined “detention” as “[t]he seizure and incarceration of an alien in order to hold him/her while awaiting judicial or legal proceedings or return transportation to his/her country of citizenship.” john simanski & lesley m. sapp, department of homeland security, annual report immigration enforcement actions: 2011, 2 (sept. 2012), available at http://www.dhs.gov/sites/default/files/ publications/immigration-statistics/enforcement_ar_2011.pdf. 12 there currently exists no right to appointed counsel, at government expense, in the immigration context. see michael kaufman, note, detention, due process, and the right to counsel in removal proceedings, 4 stan. j. civ. rts. & civ. liberties 113, 124 (2008) (citing section 292 of the immigration and nationality act). 13 simanski 2012 report, supra note 11, at 5. this is an increase of 48,276 detentions over 2011. see id.; see also simanski 2011 report, supra note 11, at 5. 14 ann badour et al., texas appleseed, justice for immigration’s hidden population: protecting the rights of persons with mental disabilities in the immigration court and detention system 14 (2010), available at http://www.texasappleseed.net/index.php?option=com_ docman&task=doc_download&gid=313&itemid=. 15 see, e.g., clapman, supra note 9; alice clapman, petty offenses, drastic consequences: toward a sixth amendment right to counsel for noncitizen defendants facing deportation, 33 cardozo l. rev. 585 (2011); matt adams, advancing the “right” to counsel in removal proceedings, 9 seattle j. soc. just. 169 (2010); sharon finkel, note, voice of justice: promoting fairness through appointed counsel for immigrant children, 17 n.y.l. sch. j. hum. rts. 1105 (2001); elizabeth glazer, note, the right to appointed counsel in asylum 2014 columbia journal of race and law 229 seekers, unaccompanied immigrant minors, and mentally ill immigrants to have a categorical right to appointed counsel in removal proceedings.16 ensuring that competent, qualified representatives17 zealously represent a particularly vulnerable immigrant’s interests is of the utmost importance. securing representation would safeguard countless individuals’ due process rights. due process protections— particularly the ability and opportunity to be heard by a decision maker—are central tenets to american notions of freedom, liberty, and justice.18 these protections are also critical in defending against unfair and potentially abusive government action. the fifth and fourteenth amendments’ due process protections apply to individuals—citizens and non-citizens alike—facing governmental action affecting or depriving them of life, liberty, or property.19 currently, our immigration courts often fail to ensure that every individual’s due process rights are indeed effectuated.20 given the due process rights at stake and the grave consequences that can result, procedural changes to our immigration removal system should be undertaken. this note argues that the department of justice’s (“doj”) executive office of immigration review (“eoir”) can and should take action by passing regulations that safeguard particularly vulnerable immigrants’ due process rights.21 these regulations should instruct ijs to affirmatively determine whether due process requires that a qualified representative advocate on behalf of a particularly vulnerable immigrant in a removal proceeding before an ij decides her case on the merits. in making this determination, ijs should be guided by the supreme court’s decisions in mathews v. eldridge and turner v. rogers. should an ij determine that a qualified representative is necessary, every effort should be made to secure one. if a qualified representative is not obtained, then the ij should administratively close the case. this case closure should then trigger ice to conduct its own review of the case and decide whether they too will proceedings, 85 colum. l. rev. 1157 (1985); nimrod pitsker, due process for all: applying eldridge to require appointed counsel for asylum seekers, 95 cal. l. rev. 169 (2007). 16 id. at least one commentator has called for a right to counsel for refugee seekers. john r. mills et al., “death is different” and a refugee’s right to counsel, 42 cornell int’l l.j. 361 (2009). 17 this note uses the term “qualified representative” and variations thereof to refer to legal counsel and/or board of immigration appeals (bia) accredited representatives who are authorized to represent immigrants in immigration court. the bia recognizes organizations throughout the country, attorneys, and non-attorney professionals trained in immigration law within those organizations, as entities and persons, respectively, capable and authorized to represent immigrants in immigration court. see department of justice, executive office of immigration review: recognition & accreditation program overview, http://www.justice.gov/eoir/ra/ra_overview_2014-03.pdf (last updated march 2014). 18 mathews v. eldridge, 424 u.s. 319, 333 (1976) (“the ‘right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society. . . .’ the fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”) (emphasis added). 19 faiza w. sayed, note, challenging detention: why immigrant detainees receive less process than “enemy combatants” and why they deserve more, 111 colum. l. rev. 1833, 1866 (2011) (quoting mathews v. diaz, 426 u.s. 67, 77 (1976)) (“there are literally millions of [noncitizens] within the jurisdiction of the united states. the fifth amendment, as well as the fourteenth amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law.”). 20 benslimane, 430 f.3d at 829–30. 21 this note defines as particularly vulnerable those immigrants who are detained and mentally ill, are unaccompanied minors, or who affirmatively claim asylum as a defense against removal from the united states. effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 230 close the case and therefore cease efforts to remove the immigrant. this note argues that these changes can and should be made through rulemaking.22 in advancing this argument, part ii summarizes the current law regarding the right to appointed counsel in the immigration context and explains the courts’ case-by-case approach to deciding due process claims. it also details and subscribes to a vision espoused by one commentator on the role that executive branch actors can play in resolving issues of constitutional import. part iii identifies the categories of vulnerable immigrants that are more likely to experience an abridgment of their due process rights in removal proceedings. part iv examines efforts to address concerns about the lack of qualified representatives available to detained immigrants going through removal proceedings. it concludes that, although these efforts are steps in the right direction, they are insufficient. part v details the administrative framework introduced above and argues for its implementation. this section demonstrates that, through administrative mechanisms, the eoir can begin to safeguard particularly vulnerable immigrants’ due process rights by effectuating the case-by-case approach already adopted by the federal judiciary. as part of the proposed framework, part v argues that ijs should consider the factors discussed in turner v. rogers and mathews v. eldridge in deciding whether an individual immigrant requires representation. this section further argues that, should immigration reform be enacted with the recent senate version’s language regarding access to counsel in immigration proceedings, this “eldridge with a turner gloss” test should be used to determine whether a qualified representative must represent an individual immigrant. although this note argues that administrative mechanisms should be brought to bear to safeguard particularly vulnerable immigrants’ due process rights vis-à-vis access to qualified representatives when necessary, this should not be read as a critique of efforts that seek to advance a categorical right to counsel in the immigration context. the approach presented in this note merely identifies a way in which executive branch actors can use available tools to address serious constitutional 22 the doj and eoir have initiated a rulemaking regarding the procedures that should be followed in removal cases involving mentally ill immigrant detainees. daniel m. kowalski, phase i of plan to provide enhanced procedural protections to unrepresented detained respondents with mental disorders, lexisnexis legal newsroom, immigration (jan. 1 2014), http://www.lexisnexis.com/legalnewsroom /immigration/b/insidenews/archive/2014/01/01/phase-i-of-plan-to-provide-enhanced-proceduralprotections-to-unrepresented-detained-respondents-with-mental-disorders.aspx. the doj has also issued guidelines offering “enhanced procedural protections” to this population of immigrant detainees. department of justice executive office for immigration review, phase i of plan to provide enhanced procedural protections to unrepresented detained respondents with mental disorders (aug. 2013), available at https://dl.dropboxusercontent.com/u/27924754/eoir%20protections.pdf. moreover, after the bush and obama administrations’ differing approaches to ineffective assistance of counsel claims in the immigration context, attorney general eric holder articulated his view that sensitive questions of constitutional import are best dealt with through the rulemaking process. matter of compean ii, 25 i&n dec. 1, 2 (a.g. 2009), available at http://www.justice.gov/eoir/vll/intdec/vol25/3643.pdf (“establishing an appropriate framework for reviewing motions to reopen immigration proceedings based on claims of ineffective assistance of counsel is a matter of great importance. i do not believe that the process used in compean resulted in a thorough consideration of the issues involved, particularly for a decision that implemented a new, complex framework in place of a well-established and longstanding practice that had been reaffirmed by the board in 2003 after careful consideration. the preferable administrative process for reforming the lozada framework is one that affords all interested parties a full and fair opportunity to participate and ensures that the relevant facts and analysis are collected and evaluated.”) (emphasis added). as it relates to the subject matter discussed in this note, rulemaking would allow all perspectives to be taken into account in deciding what a new, final administrative framework would look like and the obama administration would likely favor this process. 2014 columbia journal of race and law 231 concerns present in the immigration removal proceedings they oversee. as such, efforts to extend a categorical right to counsel in the immigration context through the courts, legislature, and elsewhere should not be deterred by the approach presented here. ii. the current legal landscape and administrative constitutionalism part ii provides an overview of the current statutory and common law framework that governs right to counsel jurisprudence in the civil context generally and in immigration proceedings specifically. it also details a view of the role that executive branch actors can play in resolving issues of constitutional import. a. agui l e ra -enriquez ’ s case-by-case approach the immigration and nationality act (“ina”) is the central body of law that governs the country’s immigration system.23 with regards to the adjudication of removal proceedings in immigration court and immigrants’ right to representation by counsel within them, the ina states: “the alien shall have the privilege of being represented, at no expense to the government, by counsel of the alien’s choosing who is authorized to practice in such proceedings.”24 therefore, as a matter of statutory right, the government is currently under no affirmative obligation to provide an immigrant with an attorney or qualified legal representative. 23 liliana zaragoza, note, delimiting limitations: does the immigration and nationality act impose a statute of limitations on noncitizen removal proceedings?, 112 colum. l. rev. 1326, 1330 (2012) (“since 1952, the ina has been the foremost body of law regulating immigration and citizenship in the united states.”). 24 8 u.s.c. §1229a(b)(4)(a) (2006). however, at least one commentator argues that this statutory language does not present an absolute bar to the use of discretionary federal funding for purposes of appointing counsel to immigrants. amelia wilson & natalie h. prokop, applying method to the madness: the right to court appointed guardians ad litem and counsel for the mentally ill in immigration proceedings, 16 u. pa. j. l. & soc. change 1, 30 (2013) (“specifically, in a december 2010 memo entitled ‘views concerning whether it is legally permissible to use discretionary federal funding for representation of aliens in immigration proceedings,’ dhs states: ‘the courts have understandably determined that section 292 does not provide an affirmative right to appointed counsel. none of those decisions, however, directly address whether ina section 292 prohibits the provision of counsel at government expense. in our view, the plain language of section 292 does not lend itself to such interpretation.’ the memorandum finishes with, ‘we conclude that nothing in ina section 240(b)(4), ina section 292, or 5 u.s.c. section 3106 prohibits the use of discretionary federal funding for representation of aliens in immigration proceedings.’ thus, it would be inconsistent for the department of homeland security to stand in the way of ijs appointing counsel for the mentally ill in order to guarantee due process.”) (citations omitted). moreover, this view has been adopted by a federal district court, see order re plaintiffs’ motion for partial summary judgment and plaintiffs’ motion for preliminary injunction on behalf of seven class members, franco-gonzalez v. holder, 767 f.supp.2d 1034 (c.d. cal. 2010) (no. cv 10-02211 dmg (dtbx)), available at http://www.aclu-sc.org/franco-injunction/. the eoir has since moved to provide “enhanced procedural guidelines” to detained mentally ill immigrants. see enhanced procedural protections, supra note 22. effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 232 nevertheless, legal scholarship and other literature urge the advancement of a right to counsel in certain civil proceedings.25 as a matter of constitutional right, the supreme court has only addressed the issue of right to counsel in various civil contexts in a few cases.26 indigent litigants have a right to be represented by appointed counsel in civil proceedings when their physical liberty is at risk,27 when they are in “juvenile delinquency” proceedings,28 and in proceedings that determine whether or not a prison inmate can be transferred to state hospitals for the mentally ill.29 similarly, the federal courts have, to date, refused to find a categorical right to counsel in the immigration context. the leading case on this question is aguilera-enriquez v. immigration and naturalization service (ins), 30 a sixth circuit decision from 1975.31 this case provides a conditional right to counsel in immigration cases. in that case, an ij ordered aguilera-enriquez, a legal permanent resident, deported. aguilera-enriquez challenged his deportation order by claiming that he was unconstitutionally denied government appointed counsel at his hearing.32 the court held that the appointment of counsel is required where counsel is necessary “to provide ‘fundamental fairness.’”33 the approach announced by the court necessitates that a case-by-case determination be undertaken to determine when a “fundamentally fair” hearing requires that counsel represent an immigrant.34 the supreme court denied certiorari in this case on january 12, 1976.35 the denial of certiorari, along with the adoption of the sixth circuit’s approach by other federal courts of appeal around the country suggests that this case-by-case approach is the governing framework.36 25 see e.g., robert e. stein et al., aba basic principles of a right to counsel in civil legal proceedings, american bar association (2010) available at http://www.americanbar.org/content/dam /aba/administrative/legal_aid_indigent_defendants/ls_sclaid_105_revised_final_aug_2010.authcheckda m.pdf (advocating for “federal, state, and territorial governments . . . [to] provide legal counsel as a matter of right at public expense to low-income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.”); john pollock & michael s. greco, it’s not triage if the patient bleeds out, 161 u. pa. l. rev. 40 (2012) (responding to another article that champions a case-bycase approach to appointing counsel in the civil context and rejects a categorical right to counsel, this article advocates for a civil right to counsel). 26 turner v. rogers, 131 s. ct. 2507, 2516 (2011) (stating that the supreme court has only considered right to counsel challenges in the civil context relating to juvenile delinquency proceedings, in proceedings to decide whether a prison inmate should be transferred to a state hospital for the mentally ill, and where the loss of physical liberty is threatened). 27 id. (citing lassiter v. dep’t. of soc. servs. of durham cnty., 452 u.s. 18 (1981)). 28 id. (citing in re gault, 387 u.s. 1 (1967)). 29 id. (citing vitek v. jones, 445 u.s. 480 (1980)). 30 aguilera-enriquez v. ins, 516 f.2d 565 (6th cir. 1975). 31 kaufman, supra note 12, at 136 (“aguilera-enriquez v. ins is a leading case on the due process right to appointed counsel in removal proceedings.”). 32 aguilera-enriquez v. ins, 516 f.2d at 568. 33 id. 34 id. (“the test for whether due process requires the appointment of counsel for an indigent alien is whether, in a given case, the assistance of counsel would be necessary to provide ‘fundamental fairness, the touchstone of due process.’”). 35 aguilera-enriquez v. ins, 423 u.s. 1050 (1976). 36 see michelson v. ins, 897 f.2d 465, 468 (10th cir. 1990) (“the fifth amendment guarantee of due process speaks to fundamental fairness. . .”); escobar ruiz v. ins, 787 f.2d 1294, 1297 n.3 (9th cir. 1986) (“the fifth amendment guarantee of due process applies to immigration proceedings”) withdrawn by escobar ruiz v. ins, 818 f.2d 712 (9th cir. 1987); barthold v. ins, 517 f.2d 689, 691 (5th 2014 columbia journal of race and law 233 however, at least one commentator has presented a more nuanced account of the current state of the law regarding the right to appointed counsel in the immigration context.37 nimrod pitsker argues that: (1) the aguilera-enriquez framework adopts the “fundamental fairness” standard from a pre-eldridge case, gagnon v. scarpelli38; (2) aguilera-enriquez accepts gagnon’s case-by-case approach to due process analysis39; and (3) the eldridge factors “should have replaced the . . . fundamental fairness standard [in the immigration context].”40 yet, it is not clear that the eldridge factors have completely replaced the “fundamental fairness” standard and many commentators treat aguilera-enriquez as the leading case in this area.41 this note does as well and uses it as the guiding framework. some commentators have argued that the aguilera-enriquez case-by-case approach results in “effectively no right at all.”42 yet, since aguilera-enriquez, there have not been many cases arguing for a right to counsel in civil contexts, including in immigration removal proceedings.43 indeed, the federal courts have consistently held that immigration removal proceedings are civil in nature.44 as such, the sixth amendment’s right to counsel protection afforded in the criminal context does not apply in the cir. 1975) (“we analyze the proceedings in terms of their fundamental fairness on a case-by-case basis.”). see also kaufman, supra note 12, at 136 (discussing the aguilera-enriquez holding that due process requires the appointment of counsel in cases in which counsel would be necessary to provide fundamental fairness); adams, supra at note 15, at 176 (relying on aguilera-enriquez as the case that establishes the current legal framework for discussing arguments related to right to counsel in removal proceedings). 37 pitsker, supra note 15, at 178 (“in sum, courts have found myriad violations of the statutory right to counsel of one’s choosing [in the immigration context], but have not once applied the [aguileraenriquez] ‘fundamental fairness’ standard to constitutionally require appointed counsel under the due process clause.”). 38 gagnon v. scarpelli, 411 u.s. 778 (1973). 39 pitsker, supra note 15, at 176. 40 id. at 177. 41 kaufman, supra note 12, at 136 (“aguilera-enriquez v. ins is a leading case on the due process right to appointed counsel in removal proceedings.”). additionally, multiple commentators treat the case-by-case framework in aguilera-enriquez as the governing approach. see e.g., adams, supra note 15; clapman, supra note 15; kaufman, supra note 12. 42 pitsker and kaufman both state the proposition that the case-by-case approach leads to no right at all in practice. kaufman, supra note 12, at 137; pitsker, supra note 15, at 178 (“[courts] have not once applied the ‘fundamental fairness’ standard to constitutionally require appointed counsel under the due process clause.”). 43 adams, supra note 15, at 177 (“the few other courts that have addressed right to counsel challenges in related contexts have also recognized that fundamental fairness may require the appointment of counsel.”). however, it is worth noting that not all scholars agree that immigration detention, as currently conceived and operationalized, is in fact a civil matter. see césar cuauhtémoc garcía hernández, immigration detention as punishment, 61 ucla l. rev. 1346 (arguing that currently, immigration detention constitutes punishment and that it should instead become a truly civil system, rather than imposing constitutional safeguards into the existing punitive system). 44 adams, supra note 15, at 171 (citing bridges v. wixon, 326 u.s. 135, 154 (1945) (“though deportation is not technically a criminal proceeding, it visits a great hardship on the individual . . . .”)). although immigration removal proceedings are not currently considered criminal proceedings, and therefore civil proceedings, the supreme court has held deportation to be a “severe ‘penalty.’” padilla v. kentucky, 130 s. ct. 1473, 1481 (2010). see also, accessing justice ii, supra note 11, at 9; sayed, supra note 19, at 1872. effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 234 immigration context.45 yet, it is undeniable that present immigration policy and procedures are increasingly blurring the line between the civil and criminal distinction, at least regarding immigration cases.46 the clearest example of this can be seen in the treatment of noncitizen detainees who are being housed in immigrant detention centers in increasing numbers, for longer periods of time, and with procedural protections that fall short from those in the traditional criminal context.47 moreover, as a matter of constitutional right, the federal courts have left the door open to potentially find that in at least some instances legal representation is necessary to ensure a fundamentally fair adjudicatory process.48 therefore, the statutory bar against appointed counsel found in the ina is not necessarily an absolute impediment to finding a right to counsel in, at least, a subset of immigration removal proceedings.49 notwithstanding the sixth circuit’s holding in aguilera-enriquez no court has held that a removal proceeding’s procedures—particularly vis-à-vis an immigrant lacking representation—were so deficient that “fundamental fairness” was violated.50 michael kaufman offers the following explanation for this state of affairs: “[i]t takes an attorney to identify the sorts of complex constitutional or statutory claims that only an attorney can ‘adequately’ present.”51 as such, a court has yet to hear a case meeting the aguilera-enriquez criteria not because such a case does not exist but because the way a federal court would review such a case—as a result of a legal challenge identified and brought by an attorney— prevents it from being heard. 45 accessing justice ii, supra note 11, at 9. 46 daniel kanstroom, padilla v. kentucky and the evolving right to deportation counsel: watershed or work-in-progress?, 45 new eng. l. rev. 305, 306 (2011) (“that alone makes [padilla] one of the more interesting and important supreme court cases we have ever seen in the (rapidly converging) fields of immigration and criminal law.”). however, the court declined to extend padilla’s impact too far. in february 2013 the court limited padilla’s reach in chaidez v. united states, 133 s. ct. 1103 (2013), by holding that the protections afforded in padilla do not apply retroactively to criminal cases already in final review. in doing so, the court somewhat cabined padilla’s reach. as such, it is unclear whether the court would extend procedural protections for immigrants in removal proceedings in a future case. chaidez may prove to temper some of initial optimism over padilla’s impact on the prospects of expanding immigrant’s procedural protections. 47 sayed, supra note 19, at 1843–44 (arguing that noncitizen immigrant detainees, particularly those categories of immigrants—including those with a criminal record—mandated to be in detention in the united states receive less procedural protections than enemy combatants in executive detention at guantánamo bay but should receive more. this includes providing them legal representation). 48 aguilera-enriquez, 423 u.s. at 568. 49 indeed, courts have found violations to the conditional statutory right to counsel provision in some instances. pitsker, supra note 15, at 178–79 (“courts have also found violations of the statutory right to obtain counsel based on ins practices that effectively impede communication between indigent aliens and their lawyers, such as transferring aliens to remote facilities without notifying the attorney of record, preventing aliens from consulting with counsel before signing voluntary departure forms, and denying aliens meaningful access to basic written legal materials. similarly, courts have also held that a prejudicial denial of counsel occurred when a judge denied a motion to change venue to allow retention of counsel and denied relief when the defendant did not competently and understandingly waive his right to counsel . . . it is ironic that when an alien can afford a lawyer there are a plethora of holdings protecting his ability to hire and effectively utilize the attorney of his choosing, but when he cannot pay for an attorney there exists, for all intents and purposes, no constitutional right to counsel.”). 50 kaufman, supra note 12, at 160–61. 51 id. 2014 columbia journal of race and law 235 b. administrative actors and the safeguarding of constitutional rights having established that the case-by-case approach adopted by the federal judiciary is the governing—though rarely successful—framework for deciding constitutional due process claims in the immigration context, this section details the role that administrative actors can and should play in safeguarding constitutional protections. although it may not always be explicitly recognized, administrative agencies and the actions they take are often where constitutional rights and protections come into contact with ordinary individuals.52 at least one commentator, gillian metzger, has argued that there should be more recognition of the role administrative agencies can and should play in ensuring that constitutional requirements and protections are met.53 indeed, she notes that the “[i]nitial responsibility for addressing constitutional questions frequently falls to agencies.”54 administrative actors play an especially salient role in addressing constitutional questions within immigration removal proceedings. as discussed in part ii.a, current constitutional common law establishes that a case-by-case analysis must be undertaken to determine when legal counsel is required to appropriately safeguard a person’s due process rights. the executive branch can take steps now to ensure that constitutional safeguards are effectuated in individual immigrants’ cases. given that congress, by housing the immigration courts within the executive branch, has: 1) invested that branch with the responsibility to ensure that an immigrant’s due process rights are protected during removal proceedings; and 2) the fact that such rights are currently sometimes jeopardized, it is appropriate for the executive branch to seize upon current law that provides it the authority to act. guaranteeing that an immigrant’s due process rights are not infringed upon is intimately tied to the policies and procedures set by the doj and eoir, along with how these policies and procedures are executed by individual ijs.55 these administrative actors’ actions and decisions have the effect of determining whether or not constitutional protections—in this case due process safeguards through legal representation—are realized.56 these actors can and should refashion their administrative policies and 52 see gillian metzger, ordinary administrative law as constitutional common law, 110 colum. l. rev. 479 (2010) (analyzing the interrelationship between constitutional law and ordinary administrative law as it applies to the debate over the legitimacy of constitutional common law and the appropriate role of administrative agencies in the constitutional order). 53 id. at 535. 54 id. at 500. 55 see letter from merrill rotter, m.d., assoc. clinical professor of psychiatry, albert einstein college of medicine, et al., to eric holder, attorney general of the united states (july 24, 2009), available at http://documents.nytimes.com/letter-to-attorney-general-holder-regarding-mentally-disabledrespondents#p=1; http://s3.amazonaws.com/nytdocs/docs/160/160.pdf (arguing for the appointment of counsel for mentally disabled people in immigration court as a matter of protecting constitutional rights); benslimane v. gonzales, 430 f.3d 828 (2005) (holding that an alien could not be removed on the basis that he did not submit his application for adjustment of status to immigration judge). 56 see metzger, supra note 52, at 504–05 (noting that scholars have documented a number of instances where administrative agencies have been at the forefront of developing new understandings of constitutional rights). effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 236 procedures in order to more fully alleviate the potential for harm.57 this would give life to the case-bycase approach articulated in aguilera-enriquez. a recent example displaying the role executive branch actors play in safeguarding constitutional protections is seen in the matter of compean and matter of compean ii.58 on january 7, 2009, then attorney general michael mukasey chose to set an administrative policy regarding a serious constitutional question—claims brought by immigrants alleging ineffective assistance of counsel—through adjudication instead of rulemaking by overruling a board of immigration appeals (bia) decision in matter in compean.59 in his decision, attorney general mukasey made significant administrative decisions and interpretations with constitutional import. he held, in relevant part, that though immigrants do enjoy due process protections under the fifth amendment, this does not encompass the right to counsel or its corollary, the effective assistance of counsel.60 moreover, attorney general mukasey’s decision instituted a new administrative framework making it much more difficult, if not impossible, for noncitizens to present an ineffective assistance of counsel defense as had been the case prior to matter in compean. however, on june 3, 2009, attorney general eric holder vacated mukasey’s decision.61 moreover, in attorney general holder’s judgment, mukasey’s decision did not adequately consider all views on the matter.62 as such, he reinstituted the policy and administrative framework in existence prior to january 7, 2009 and directed the eoir to initiate a rulemaking process to address this issue.63 the rulemaking process on this issue is ongoing with no final rule issued as of this writing.64 57 eoir is beginning to do so as seen through the new enhanced procedures. as i will argue below, though this is a promising step in the right direction, it is insufficient. see enhanced procedural protections supra note 22. 58 matter of compean, 24 i&n dec. 710 (a.g. 2009), available at http:// www.justice.gov/eoir/vll/intdec/vol24/ 3632.pdf; matter of compean ii, 25 i&n dec. 1 (a.g. 2009), available at http://www.justice.gov/eoir/vll/intdec/vol25/3643.pdf. 59 see matter of compean, 24 i&n dec. 710 (a.g. 2009), available at http://www.justice.gov /eoir/vll/intdec/vol24/3632.pdf. 60 id. 61 matter of compean ii, 25 i&n dec. 1 (a.g. 2009), http://www.justice.gov/eoir/vll/intdec /vol25/3643.pdf. 62 id. 63 id. (“establishing an appropriate framework for reviewing motions to reopen immigration proceedings based on claims of ineffective assistance of counsel is a matter of great importance. i do not believe that the process used in compean resulted in a thorough consideration of the issues involved, particularly for a decision that implemented a new, complex framework in place of a well-established and longstanding practice that had been reaffirmed by the board in 2003 after careful consideration. the preferable administrative process for reforming the lozada framework is one that affords all interested parties a full and fair opportunity to participate and ensures that the relevant facts and analysis are collected and evaluated.”) (emphasis added). attorney general holder’s sentiment that rulemaking is the preferable administrative procedure for instituting a new framework for reviewing motions to reopen immigration proceedings suggests that instituting the administrative framework put forth in this note is also best accomplished through rulemaking. 64 the doj has initiated a rulemaking regarding the procedures that should be followed when a motion to reopen a removal proceeding is made based on a claim of ineffective assistance of counsel. see the department of justice’s regulatory agenda for fall 2013, http://resources.regulations.gov /public/component/main?main=unifiedagenda (choose “doj” as agency; then search “eoir”; then click on rin “1125-aa68” entitled “motions to reopen removal, deportation, or exclusion proceedings based upon a claim of ineffective assistance of counsel”). as of april 13, 2014, no final 2014 columbia journal of race and law 237 the back and forth between the bush and obama administrations’ approach on this issue— particularly regarding the administrative tool of choice, rulemaking versus adjudication—is instructive. the episode demonstrates that administrative agencies regularly impact the scope and dimensions of individual’s constitutional rights. moreover, given that attorney general holder himself has acknowledged the “fundamentally fair” standard for due process protections in removal proceedings, this standard should be used in immigration removal proceedings.65 since the eoir is already taking regulatory action with regards to effective assistance of counsel, this agency should likewise take action with respect to providing qualified representatives in removal proceedings involving vulnerable immigrants, if those cases are to be adjudicated. additionally, the back and forth in matter of compean demonstrates that a unilateral decision by the attorney general runs the risk of being overturned. this, and the fact that issues related to the due process rights of vulnerable immigrants is important, suggests that contested views will be more fully heard through a rulemaking process and likely have longer staying power. as such, in taking action regarding access to qualified representatives in the immigration removal proceedings arena, the rulemaking process should be pursued. iii. at risk immigrant groups having detailed the current state of the law regarding access to counsel in removal proceedings and the role that administrative and executive branch actors can and do play in defining the scope and realization of constitutional rights, part iii identifies the categories of immigrants with a high risk of having their due process rights abridged when in removal proceedings.66 a. categories of detained and particularly vulnerable immigrants 1. mentally incompetent non-citizens immigrant rights advocates have mobilized to ensure that all constitutional and procedural protections are indeed effectuated for arguably the most vulnerable immigrant group—detained mentally ill persons.67 in july 2009, a group of advocates wrote attorney general eric holder—a little under six months after he assumed office—urging him to implement new regulations, policies, and procedures to rule has been adopted. the action timetable does not reflect a final rule posted there is, as of this date, no legal deadline. 8 c.f.r. 1003; 8 c.f.r. 1208. 65 speaking before a senate committee hearing regarding matter of compean, attorney general holder stated: “the constitution guarantees due process of law to those who are the subjects of deportation proceeding. i understand attorney general mukasey’s desire to expedite immigration court proceedings, but the constitution requires that those proceedings be fundamentally fair. for this reason, i intend to reexamine the decision should i become attorney general.” hearings on the nomination of eric holder to be attorney general before the senate judiciary committee, 111th cong. (2009) (statement of eric holder in response to questions submitted by sen. orrin hatch and sen. russ feingold), available at https://www.aclu.org/pdfs/immigrants/ailf_letterinsupportofreconsideration.pdf. 66 undoubtedly, there are other immigrant groups in detention who are also vulnerable and would benefit greatly from representation. this note highlights the three groups in this section because they are the ones most often cited in the literature. it does not mean, however, that they are the only groups meriting this protection. in this spirit, a section below suggests how the proposed framework could be extended to other immigrants. 67 this note uses the terms “mentally incompetent,” “mentally ill,” and variations thereof interchangeably. effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 238 safeguard mentally ill immigrants’ due process rights.68 moreover, the doj faced litigation—brought by the aclu of southern california and other advocates from across the country in 2010—seeking to safeguard mentally ill immigrants’ constitutional and procedural rights.69 beyond the actions taken by advocates, the eoir, perhaps spurred by advocates’ actions, is undertaking a rulemaking process to address the problems this immigrant population faces in removal proceedings; it also recently announced a new procedural policy affecting this population.70 in recent months, much progress has been made in shifting the eoir’s procedures. indeed, the eoir issued a “plan to provide enhanced procedural protections to unrepresented detained respondents with mental disorders.”71 in it, the eoir instructs ijs to make a determination as to an immigrant’s mental competency to go through removal proceedings prior to reaching a case’s merits, as many advocates and scholars have urged.72 moreover, it states that the eoir will provide any alien determined to be mentally incompetent and incapable of representing himself with legal counsel.73 the policy change also provides the ij with much more room to maneuver in providing a more robust process for a mentally incompetent immigrant to meaningfully participate in the case against him; details how such competency determinations are to be made; and how mental health professionals will be used to aid in making the determination.74 these changes, along with the immigration judge benchbook’s 68 rotter, supra note 55. 69 franco-gonzalez v. holder, 767 f.supp.2d 1034 (c.d. cal. 2010). on april 23, 2013, federal district court judge dolly m. gee ordered that defendants in this case—namely the doj and the dhs—provide “qualified representatives” (defined as attorneys or other qualified representatives, like bia accredited non-attorneys) to mentally ill detainees in arizona, california, and washington states. she ordered this action because, to not do so, in her judgment, would be a violation of section 504 of the rehabilitation act. the act mandates that disabled persons must be able to meaningfully participate in federally funded programs. she also ordered that mentally ill detainees included in the plaintiff class must be granted a bond hearing. she declined to reach the constitutional due process arguments on either issue. see order re plaintiffs’ motion for partial summary judgment and plaintiffs’ motion for preliminary injunction on behalf of seven class members, franco-gonzalez v. holder, 767 f.supp.2d 1034 (c.d. cal. 2010) (no. cv 10-02211 dmg (dtbx)), available at http://www.aclu-sc.org/francoinjunction/. 70 see the department of justice’s regulatory agenda for fall 2013, http:// resources.regulations.gov/public/component/main?main=unifiedagenda (choose “doj” as agency; then search “eoir”; then click on rin “1125-aa73” entitled “procedures for cases involving mentally incompetent aliens”). as of april 13, 2014, no final rule has been adopted. additionally, a fairly recent bia decision allows ijs to provide heightened safeguards when they determine that an immigrant lacks sufficient competency to proceed. matter of m-a-m, 25 i&n dec. 474 (bia 2011), available at http://www.justice.gov/eoir/vll/intdec/vol25/3711.pdf; see also dep’t of justice, dep’t of justice and the dep’t of homeland security announce safeguards for unrepresented immigration detainees with serious mental disorder or conditions, available at http://www.justice.gov/eoir/press/2013 /safeguardsunrepresentedimmigrationdetainees.html. most recently, eoir has offered enhanced procedural protections for this population. dep’t of justice and executive office for immigration review, supra note 22. 71 dep’t of justice and executive office for immigration review, supra note 22. 72 id. 73 id. at 3. 74 id. 2014 columbia journal of race and law 239 (“benchbook”) guidance in cases involving mentally ill immigrants are positive developments.75 however, the new policy and the benchbook only provide non-legally binding guidance.76 the fact remains that no rule yet exists grounding these policy changes. nevertheless, the enhanced procedural protections go a long way in providing substantial protections to this vulnerable population. the changes will also play a role in the rules to come: the proposed regulations will be informed, in part, by the policy announced by eoir on april 22, 2013, in which eoir committed to provide enhanced protections to unrepresented immigration detainees with serious mental disorders or conditions that may render them mentally incompetent to represent themselves in immigration proceedings.77 two areas, however, that remain unaddressed by the changes are what happens when a qualified representative cannot be secured or when issues involving the maximum length of detention are implicated. although these are issues that should be addressed in the forthcoming rules, this policy change is very important. first, it demonstrates the eior’s ability to marshal administrative resources and authority to address a constitutionally significant procedural infirmity. second, it is an instance where a portion of the proposed framework in part v below has been effectuated, thus demonstrating the viability of the suggested approach. 2. unaccompanied non-citizen minors the treatment of immigrant children has sometimes elicited a different approach by government authorities.78 unaccompanied minors who do not have relatives or other adults responsible for their care at their side through immigration detention and attendant removal proceedings also merit particular attention.79 this group of immigrants is defined by statute. termed an “unaccompanied alien child,” a minor child in this category is someone who “has no lawful immigration status in the united states . . . 75 see dep’t of justice, executive office of immigration review, mental health issues, immigration judge benchbook, http://www.justice.gov/eoir/vll/benchbook/tools/mhi/index.html (last visited april 13, 2014) (“in a recent immigration law advisor article, immigration judge mimi tsankov observes that one of the great challenges facing immigration courts today involves respondents who are incompetent.”). 76 id. similarly, an agency’s policy is not yet a rule or legal precedent. 77 see dep’t of justice regulatory agenda, procedures for cases involving mentally incompetent aliens, supra note 70. 78 see plyler v. doe, 457 u.s. 202 (1982) (holding that a texas law prohibiting undocumented immigrant children from attending public schools violated the equal protection clause of the 14th amendment because discriminating on the basis of immigration status was not a sufficiently compelling state interest). 79 see ann farmer, under age and alone, immigrants see a softer side of detention, n.y. times, july 14, 2009, at a22 (reporting on the challenges minors face in the immigration detention system). the article also notes that the care of detained immigrants who are unaccompanied minors resides with the department of health and human services (hhs) and when in detention, they reside in separate facilities from adult detainees. as such, unaccompanied minors already are treated differently from the general population by the relevant authorities. see also sonia nazario, child migrants, alone in court, n.y. times, apr. 11, 2013, at a23 (arguing that unaccompanied minors in immigration removal proceedings should be provided with appointed counsel). effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 240 has not attained 18 years of age . . . and . . . (i) there is no parent or legal guardian in the united states; or (ii) no parent or legal guardian in the united states is available to provide care and physical custody.”80 the doj and eoir have already recognized this group of immigrants as particularly vulnerable and have identified some unique challenges agency actors face in adjudicating their cases.81 some of these challenges include recognizing a minor’s comprehension of the removal proceedings, whether a minor can effectively represent himself, and issues such as an ij being able to accurately determine the child’s age.82 eoir has also acknowledged that the complexity of immigration cases militates toward making a special effort for finding pro bono counsel to represent unaccompanied minors.83 the agency has even established specialized “juvenile dockets” across the country “to facilitate consistency, encourage child-friendly courtroom practices, and promote pro bono representation for unaccompanied alien children.”84 these measures and guidelines for ijs who adjudicate removal cases involving unaccompanied minors highlight the need for particularized attention to this group of immigrants in order to safeguard their due process rights. these measures also strongly signal that the status quo is inadequate. 3. detainees who raise asylum as a defense against removal commentators have also acknowledged that asylum seekers, who are by definition fleeing specific kinds of persecution in their native countries, are also a particularly vulnerable group.85 one commentator, nimrod pitsker, calls for the extension of a categorical due process right to legal counsel to asylum seekers.86 he argues that the eldridge factors should be the “foundational test for asylumseeker[s’] due process rights.”87 he carefully outlines how the fifth amendment due process clause’s protections apply to immigrants physically in the united states88 and why, by using the eldridge factors as the test, asylum-seekers are entitled to legal representation. this note, unlike pitsker, does not argue for 80 6 u.s.c. § 279(g) (2012). 81 see dep’t of justice office of the director, executive office of immigration review, unaccompanied alien children in immigration proceedings (2008), available at http://www.aila.org/content /default.aspx?docid=25282 (reporting that immigration judges face profound questions in adjudicating cases involving unaccompanied alien children; additionally, legal issues such as determining a child’s age in the absence of birth documents or parents and determining if a child qualifies to remain in the united states make proceedings even more complicated). 82 id. 83 id. 84 id. 85 pitsker outlines what conditions an asylum seeker must satisfy in order to be granted that status: “to qualify for asylum under u.s. law, an asylum seeker must be outside his or her country and have a well-founded fear of persecution based on one of the five enumerated grounds [race, religion, nationality, membership in a particular social group, political opinion]; refugees fleeing civil wars, natural disasters, and generalized violence do not qualify.” pitsker, supra note 15, at 179; see also united states citizenship and immigration services, asylum, available at http://www.uscis.gov/portal/site/uscis /menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f39d3e4d77d73210vgnvcm100000082ca 60arcrd&vgnextchannel=f39d3e4d77d73210vgnvcm100000082ca60arcrd (last visited apr. 13, 2014) (stating that people come to the united states seeking protection because they have suffered persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group, or political opinion). 86 pitsker, supra note 15. 87 id. at 171. 88 id. at 173. 2014 columbia journal of race and law 241 a categorical right to counsel for asylum seekers, or any other immigrant—but does not disagree with that normative value. this note does, however, extend pitsker’s analysis of the eldridge factors to discuss how turner v. rogers affects the due process analysis and suggests that the attorney general’s delegates, immigration judges, should make a due process analysis. as such, this note includes some asylum seekers—those who affirmatively raise asylum as a defense to deportation and who are also currently in detention—within the category of vulnerable immigrants whose cases should receive a “front end” due process analysis to determine if they need to be represented. asylum seekers are arguably the immigrants who face the grimmest consequences should they be removed from the united states.89 therefore, they should receive more procedural protections. iv. current efforts to extend access to qualified legal representatives to detained immigrants the acute challenges faced by the particularly vulnerable immigrants identified above are no secret. these realities have inspired advocates to assist them in presenting their cases to ijs. many scholarly commentators, immigrants’ rights advocates, and other stakeholders continue to press for increased use of qualified representatives on two fronts: 1) providing pro bono attorneys or bia accredited representatives from available resources and 2) achieving a right to counsel in removal proceedings.90 this section details some of these efforts but concludes that they are insufficient to address the needs of vulnerable immigrants. consequently, a more robust approach is necessary. a. the department of justice at the moment, the doj facilitates the provision of legal assistance to detained immigrants in a variety of ways that help ameliorate, but do not fully address, the problem of insufficient access to qualified representatives. doj regulations allow board of immigration appeals (“bia”) accredited representatives—who can be but need not be attorneys—to represent immigrants in removal proceedings.91 in order for someone to become a bia-accredited representative, they must meet certain criteria and be employed by an organization recognized by the bia.92 additionally, since 2003 the eoir has been providing legal information and referrals through the legal orientation program (lop).93 this program provides legal information, training, and an avenue to potential—though not guaranteed— representation provided either at no cost or low cost through bia accredited organizations.94 although this program helps, it does not come close to providing sufficient access to critical legal services for all immigrants. eoir also runs a pro bono representation program with the assistance of several non-profit organizations throughout the country.95 89 id. at 170 (“asylum seekers occupy a unique position as arguably the most vulnerable litigants in the civil system: an erroneous outcome can cause a noncitizen to be returned to persecution, torture, or death.”). 90 stacy kaplow et al., supra note 11, at 9. 91 supra note 17; sayed, supra note 19, at 1874–75. 92 8 c.f.r. § 292.1 (2011); 8 c.f.r. § 292.2 (2010). 93 arnold & porter llp, reforming the immigration system: proposals to promote independence, fairness, efficiency, and professionalism in the adjudication of removal proceedings, american bar association commission on immigration 5.6 (2010), available at http://www.americanbar.org/content /dam/aba/migrated/immigration/publicdocuments/aba_complete_full_report.authcheckdam.pdf. 94 id. 95 id. at 5.7. effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 242 the most robust, and likely most effective, effort to date that doj has undertaken is the policy change whereby eoir has committed itself to providing counsel to mentally incompetent immigrants. this policy change is discussed above. that is a step in the right direction. however, the policy’s successes and the challenges it will face have yet to be determined. additionally, the policy only applies to a discrete population and not to other vulnerable immigrants. b. the new york deportation defense project within the constraints of the current legal regime, a comprehensive, local, and practical effort to provide detained immigrants representation is taking place in new york city. launched by judge robert a. katzmann of the united states court of appeals for the second circuit, the new york immigrant study “seeks to facilitate adequate counsel for immigrants in the service of the fair and effective administration of justice.”96 this study proposes the creation of what it calls the new york deportation defense project (“project”).97 among other things, the proposed project would provide universal representation to low-income immigrants, giving priority to detained immigrants. it would also provide services beyond legal representation (such as mental health assessment, translation/interpretation, among others) and work in conjunction with the dhs and eoir.98 should this program become a reality, it would go a long way toward alleviating the due process shortcomings present in the current system. however, as the report itself and this note acknowledge, a permanent nationwide solution requires federal action.99 a system like the one proposed by the project is not feasible everywhere, but it could certainly become a model.100 c. the american bar association the american bar association (aba) has also weighed in on the issue of improving access to representation for immigrants in removal proceedings. the organization passed a resolution supporting “the due process right to counsel for all persons in removal proceedings.”101 the aba and others have pushed for a categorical right to counsel in removal proceedings to be recognized because they believe the case-by-case approach is unworkable.102 although a categorical right to counsel may be the end goal, figuring out a way to work within the current case-by-case framework—which the courts themselves have already provided—will go a long way to provide procedural protections until a long-term, permanent solution is reached. additionally, and tellingly, the very fact that the aba suggests a wholesale restructuring of the immigration court system suggests the massive failings of the current regime.103 96 stacy kaplow et al., supra note 11. 97 id. at 2. 98 id. relatedly, the immigrant justice corps has been established and is “dedicated to meeting the need for high-quality legal assistance for immigrants seeking citizenship and fighting deportation.” immigrant justice corps, www.justicecorps.org (last visited may 15, 2014). 99 id. at 1. 100 id. at 6. 101 commission on immigration, report to the house of delegates: recommendation, american bar association (2006), available at http://www.americanbar.org/content/dam/aba/migrated/immigration /publicdocuments/aba_complete_full_report.authcheckdam.pdf (last visited april 13, 2014). 102 arnold & porter llp, supra note 93, at 5.4 (citing the 2006 aba’s report to the house of delegate: recommendation). 103 see arnold & porter llp, supra note 93. 2014 columbia journal of race and law 243 the initiatives and programs described above, and others like them, can work in conjunction with the framework proposed in part v to provide vulnerable immigrants with qualified representatives. together, these efforts can assist vulnerable immigrants present their cases. however, given the limited number of qualified representatives, this approach will not be available in all cases. as described below, an additional administrative safeguard—the closure of cases by ijs when a qualified representative is not secured in a given case—is a necessary component to the framework. v. moving beyond unworkable: realizing the case-by-case approach part iii identified the categories of vulnerable immigrants that should receive heightened protections and part iv demonstrated that current efforts to provide qualified representatives to these immigrants are insufficient to safeguard their due process rights. responding to these circumstances, part v puts forth an administrative solution. this part argues that the mathews v. eldridge framework— which provides a multifactor test to determine whether a specific legal proceeding satisfies due process requirements—should be supplemented by a recent case, turner v. rogers, and applied in the immigration context.104 moreover, part v argues for the adoption of the administrative framework proposed herein. this framework would direct ijs to use the turner supplemented due process test to determine whether qualified representatives must represent vulnerable immigrants in removal proceedings. in this proposed framework, an ij—acting under authority delegated by the attorney general and using the turner supplemented test—would make an initial determination about whether a vulnerable immigrant must be represented in order to ensure a “fundamentally fair” removal hearing, as required by aguilera-enriquez. if an ij determines that an individual immigrant must be represented, then a continuance—for up to six months—should be granted until a qualified representative is obtained through a program like the project, lop, or through other means.105 if representation cannot be secured within the specified timeframe, then that case should not proceed. if it is determined that a case should not proceed, the ij should immediately close it.106 after the ij administratively closes the case, dhs, through ice, should 104 turner v. rogers, 131 s. ct. 2507 (2011). 105 in zadvydas v. davis, 533 u.s. 678 (2001) the supreme court held that detention of immigrants without a determination of what to do with their case for up to six months was permissible. given that the supreme court gave this timeframe as the upper limit, this note adopts that timeframe as the upper time limit. see also sayed, supra 19, at 1841–42 (discussing zadvydas and the six month presumptive limit created by the court). however, in the context of mentally incompetent immigrants, eoir has committed itself to provide representation. as such, in at least that area, the ij is instructed, as a matter of policy, to obtain representation. 106 brian m. o’leary, chief immigration judge with the eoir, released a memorandum in march 2013 providing guidance to ijs on when to grant continuances and when to administratively close cases. in it, o’leary states that absent “good cause” no more than two continuances should be granted. however, he specifically highlights an immigrant’s efforts at securing legal representation as an example of a potentially valid reason to grant a continuance. moreover, as to administrative closures, the memo highlights a second circuit decision where the court approved of the use of administrative closure as a tool to remove low priority cases from the immigration court’s docket where the government would likely not “effect the petitioner’s removal.” additionally, the memo states that the bia allows the administrative closure of cases even if one party does not agree. as such, an ij can make that decision unilaterally. although, the memo’s purpose is to provide ij’s with guidance on how to use continuances and administrative closure as tools to promptly decide cases, it is instructive for this note’s purposes as well. the memo upholds the use of both administrative tools available to ijs and supports a broad, and discretionary, approach to using the tools for case volume management. brian m. o’leary, operating effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 244 also make a determination as to whether they will cease to pursue the immigrant’s removal. it can make such a determination by exercising its prosecutorial discretion. either party could appeal the decision to the bia and, if necessary, the federal courts, should it determine that an ij’s decision was reached in error. moreover, current common and statutory law provides sufficient legal authority for this proposed administrative scheme to be enacted. the following sections detail the underlying legal authority, discuss the envisioned turner supplemented due process test, and lay out the proposed administrative framework. a. statutory authority for the proposed administrative framework since 1952, the immigration and nationality act (ina) has governed who is eligible to legally enter the united states. it also contains the criteria for admitting individuals into the american body politic through citizenship.107 in short, it constitutes the “basic body of immigration law.”108 relatedly, the ina and related regulations also govern how immigration removal proceedings are administered. through the ina and relevant regulations congress has delegated the day-to-day execution of removal proceedings to the eior, which is housed within the doj.109 however, the responsibility for enforcing the immigration laws and for affirmatively seeking an immigrant’s removal through the prosecution of immigrants who violate immigration laws resides with ice, which is part of the dhs.110 this statutory scheme and the resulting enforcement and adjudicatory structure, as commentators have suggested, creates problems of legitimacy for the entire immigration system and risks compromising the system’s impartiality.111 placing the responsibility to enforce the immigration laws and to fairly adjudicate removal proceedings within the executive branch—albeit in two separate agencies—is cause for concern.112 as currently structured, the executive branch is charged with simultaneously seeking to remove those immigrants that run afoul of current immigration laws and, in an impartial manner, adjudicating an immigrant’s case when the government seeks their removal. given the high stakes at issue in removal proceedings and the legitimacy questions the current immigration system raises, the executive branch should provide robust protections in ij presided hearings that comport with constitutional due process requirements. in this regard, the fact that the ina explicitly states that the immigration courts constitute the “exclusive proceedings” that decide removability questions is critically important.113 since there is no other forum with the power to determine an immigrant’s removability, ensuring that all necessary constitutional safeguards are followed during this initial fact-finding setting is of paramount importance. policies and procedures memorandum 13-01: continuances and administrative closure, dep’t of justice, exec. office of immigration review (mar. 7, 2013), available at http://www.justice.gov/eoir/efoia/ ocij/oppm13/13-01.pdf. 107 zaragoza, supra note 23, at 1330. 108 immigration and nationality act, 8 u.s.c. §§ 1101–1537 (2006). 109 8 c.f.r. §1003.0 (2007). 110 zaragoza, supra note 23, at 1331–32 (discussing how after the september 11, 2001 terrorist attacks, and the ensuing homeland security act of 2002, the immigration enforcement and adjudicatory schemes were reformed such that the doj no longer has enforcement capacities but maintains its adjudicatory function while ice and other agencies now carry out law enforcement functions). 111 see legomsky, supra note 6. 112 id. 113 8 u.s.c. §1229a(a)(3) (2006). 2014 columbia journal of race and law 245 the ina makes clear that immigration court is the exclusive venue in which removal proceedings can take place. therefore, understanding the internal structure of these administrative proceedings is important. within an individual removal proceeding, an ij is the actor with the authority to determine, as a matter of law, whether an immigrant is to remain in the country or is to be removed.114 only attorneys can be appointed as ijs.115 the ina also invests ijs with the authority to exercise powers delegated to them from the ag.116 as such, as long as the ag’s directions and instructions to ijs are consistent with 1) his delegated powers and 2) are within the ina’s scope, ijs can perform duties delegated and prescribed by the ag. given that the ag’s delegated authority is very 114 both 8 u.s.c. § 1229a (2006)—which governs removal proceedings—and the federal regulations implementing this section delineate an ij’s delegated powers and responsibilities. section 1229a(c)(1) authorizes ijs to make decisions on the removability of aliens at the end of a hearing. 8 u.s.c. §1229a(c)(1) (2006). section 1229a(a)(1) states that an ij is the official who “shall conduct proceedings for deciding the inadmissibility or deportability” of an immigrant. 8 u.s.c. §1229a(a)(1) (2006). 115 8 c.f.r. §1003.10(a) (2006) (“appointment. the immigration judges are attorneys whom the attorney general appoints as administrative judges within the office of the chief immigration judge to conduct specified classes of proceedings, including hearings under section 240 of the act. immigration judges shall act as the attorney general's delegates in the cases that come before them.”). the attorney general derives his or her authority from 28 u.s.c. §510 (2006) (“the attorney general may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the department of justice of any function of the attorney general.”). additionally, 8 c.f.r. §1003.10(b) (2006) delineates the scope of an ij’s power: (b) powers and duties. in conducting hearings under section 240 of the act and such other proceedings the attorney general may assign to them, immigration judges shall exercise the powers and duties delegated to them by the act and by the attorney general through regulation. in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the act and regulations that is appropriate and necessary for the disposition of such cases. immigration judges shall administer oaths, receive evidence, and interrogate, examine, and cross-examine aliens and any witnesses. subject to §§1003.35 and 1287.4 of this chapter, they may issue administrative subpoenas for the attendance of witnesses and the presentation of evidence. in all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the act and regulations. 8 c.f.r. §1003.10(b) (2006) (emphasis added). 116 8 u.s.c. §1101(b)(4) (2006) (emphasis added) defines an ij: the term ‘immigration judge’ means an attorney whom the attorney general appoints as an administrative judge within the executive office for immigration review, qualified to conduct specified classes of proceedings, including a hearing under section1229a of this title. an immigration judge shall be subject to such supervision and shall perform such duties as the attorney general shall prescribe, but shall not be employed by the immigration and naturalization service. effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 246 broad,117 he can, in his judgment, choose to delegate “any function” of his authority to “any other officer, employee, or agency of the department of justice.”118 in addition to the broad powers of delegation afforded to the ag, he also has specific powers related to immigration proceedings. indeed, the ina technically places much of the burden, and discretion, of running immigration removal proceedings on the ag’s shoulders. 8 u.s.c. §1103(g)(2) provides the critical language regarding the ags power and responsibilities in this area: the attorney general shall establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the attorney general determines to be necessary for carrying out this section.119 this language provides the ag with a broad base of allowable actions that he can take—at his discretion—to carry out his immigration related duties. the last clause—“and perform such other acts as the attorney general determines to be necessary for carrying out this section”120—is particularly relevant. this language invests him with the authority to determine what discrete acts he will take, and by extension the agencies and employees he directs, in order to effectively perform his duties as related to immigration and nationality. as such, in carrying out his official duties regarding immigration issues, this statute invests the ag with broad capabilities and powers. moreover, it is apparent from the ina’s language, that congress contemplated and indeed expects the ag to balance his duties with protecting immigrants’ “rights and privileges.”121 8 usc § 1229a(b)(3) allows the ag to “prescribe safeguards to protect the rights and privileges of the alien” if the person cannot appear before an ij for reasons of “mental incompetency”.122 this demonstrates that legislators believed that the ag is capable of determining what safeguards are necessary to protect a vulnerable immigrant’s rights and privileges. however, the statute only explicitly addresses an immigrant’s “rights and privileges” in cases where an immigrant is mentally incompetent. as such, a possible counterargument to expanding protections in removal proceedings to other immigrant groups is that since congress specifically authorized the ag to take countervailing measures in a very specific context—when an immigrant cannot appear before an ij because of mental incompetency—the statute, by failing to mention other exceptions, does not permit increased due process protections in other contexts. congress knows how to and in fact did specify protections for certain immigrants but not others. therefore, the argument would continue, extending protections to other immigrants is not allowable under the statute. 117 28 u.s.c. §510 (2006) (“the attorney general may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the department of justice of any function of the attorney general.”). 118 id. 119 8 u.s.c. §1103(g)(2) (2006) (this is within chapter 12 of title 8, which deals with immigration and nationality; this specific section deals with the ags powers in immigration and nationality). 120 id. (emphasis added). 121 8 u.s.c. §1229a(b)(3) (2006) (directing the ag to prescribe procedural safeguards if a noncitizen cannot be present at a hearing because of mental incompetency). 122 id. 2014 columbia journal of race and law 247 two points are particularly relevant to such an argument. first, it is true that 8 u.s.c. §1229a(b)(3) deals with the specific circumstance where immigrants are not “present” as a result of mental incompetency. yet, had congress remained silent on circumstances where a person’s due process protections could be abridged, the resulting process would be open to substantial criticism. as such, this section should not be construed as proof that immigrants suffering from mental competency issues should be the sole beneficiaries of heightened procedural protections. rather, it should be viewed as recognition of the particular challenges their cases present. moreover, 8 u.s.c. §1229a(b)(3) is written in broad language, authorizing the ag to handle cases where an immigrant is mentally incompetent in the manner he best sees fit. this broad delegation of authority to the ag to deal with issues that deviate from the norm and are “necessary” to carry out his functions is a theme throughout the statute. congress’s favoring of expansive language when vesting the ag with the power to act in the immigration context demonstrates a willingness to allow the ag to address particularly problematic issues in a manner consistent with his best judgment. the fact that the ag is generally entrusted with substantial discretion should weigh in favor of allowing the ag to take the actions he feels are necessary and reasonable to address issues as they arise. second, as a matter of statutory construction and interpretation, we assume that the statutes that govern how immigration proceedings are administered do not run afoul of constitutional safeguards and principles.123 given the discussion above regarding the ag’s broad powers to execute immigration laws, including those dealing with removal proceedings, there is a presumption that he can use his powers to prevent a constitutional conflict. should a conflict arise, he can and should take actions to prevent or address it. indeed, this was what both then attorney general michael mukasey and attorney general eric holder did—albeit through competing visions of constitutional interpretation—regarding an immigrant’s right to effective assistance of legal counsel.124 given that 1) it is appropriate for the ag to interpret the constitution;125 2) the eoir handles a volume of cases too numerous for the ag to personally make decisions regarding appropriate due process protections in individual cases; and 3) the ag can delegate any function he deems necessary to carry out his responsibilities, the ag has the authority to instruct ijs to consider what due process requires in individual cases. having established that the ag’s powers in the immigration arena are broad and allow for much discretion, the following sections discuss how the ag could and should mobilize his powers to address the current procedural deficiencies specific immigrant groups face in removal proceedings. particularly, the ag should immediately initiate a rulemaking to install the administrative framework put forth in part v.c. this framework would ensure that the due process rights of particularly vulnerable immigrants are not violated. a critical component of this proposal is a supplemented mathews v. eldridge test. part v.b argues that the eldridge test, with a turner gloss, should be used by ijs to decide whether a particularly 123 erwin chemerinsky, constitutional law: principles & policies 28 (epstein et al. eds., 2d ed. 2002) (“[l]egislators—federal, state, and local—are obliged to consider the constitutionality of bills before ratifying them.”). this statement—and sentiment—is commonly shared: there is a presumption that all laws ratified by a legislative body were passed in good faith and without the intention to cause a constitutional conflict. 124 matter of compean, 25 i&n dec. 1, 2 (a.g. 2009) (see supra note 58); matter of compean ii, 24 i&n dec. 710 (a.g. 2009) (see supra note 58). regarding the propriety of a non-judicial government actor making constitutional interpretations, see erwin chemerinsky, supra note 123, at 28 (“regardless of the method of interpretation, who should interpret the constitution? the correct answer is that all government officials and institutions are required to engage in constitutional interpretation.”). 125 erwin chemerinsky, supra note 123. effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 248 vulnerable immigrant must have a qualified representative in a removal proceeding. the ag can direct ijs to use this test given his ability to interpret the constitution and his authority to delegate functions to ijs. this initial determination is critical to deciding whether a vulnerable immigrant’s case should go forward without violating the immigrant’s due process rights. b. the eldr idge test with a turner gloss both mathews and turner form part of the supreme court’s jurisprudence on the right to appointed counsel in civil proceedings. in order to determine whether a qualified representative is necessary to safeguard a particularly vulnerable immigrant’s due process rights, this section first explores the circumstances under which courts have already held that representation is necessary outside of the criminal context. as discussed in part ii.a, supra, the supreme court has only occasionally addressed the issue of right to counsel in civil contexts.126 indigent litigants have a right to be represented by appointed counsel in civil proceedings when they are at risk of being deprived of physical liberty,127 when they are in “juvenile delinquency” proceedings,128 and in proceedings held to decide whether or not to transfer prison inmates to state hospitals for the mentally ill.129 in recounting the court’s right to appointed counsel jurisprudence, justice breyer, writing for the court in turner v. rogers, states: “the court previously had found a right to counsel ‘only’ in cases involving incarceration, not that a right to counsel exists in all such cases.”130 thus, in evaluating its jurisprudence, the court rejected a categorical per se rule mandating a right to counsel. yet, the court also left the door open for courts to find that representation by counsel is required in some, albeit limited, instances where the loss of physical liberty is at stake.131 justice breyer made the above statement in a case regarding the right to appointed counsel in a civil context. turner v. rogers originated in a south carolina family court and was a civil contempt case regarding unpaid child support.132 turner could not pay the child support he owed.133 the south carolina family court found him to be in contempt of its order directing him to pay his debt.134 turner, in turn, challenged the court’s contempt order claiming that the fact that an attorney did not represent him at his contempt hearing violated his fourteenth amendment due process rights.135 presented with turner’s claim, the court turned to answer the question of whether “the due process clause grants an indigent defendant, such as turner, a right to state-appointed counsel at a civil contempt proceeding, which may lead to his incarceration.”136 in answering this question, the court summarized its right to counsel jurisprudence in civil contexts137 and stated that these “precedents 126 turner v. rogers, 131 s. ct. 2507, 2516 (2011) (stating that the supreme court has only considered right to counsel challenges in the civil context relating to juvenile delinquency proceedings, in proceedings to decide whether a prison inmate should be transferred to a state hospital for the mentally ill, and where the loss of physical liberty is threatened). 127 id. (citing lassiter v. dep’t of soc. servs. of durham cnty., 452 u.s. 18 (1981)). 128 id. (citing in re gault, 387 u.s. 1 (1967)). 129 id. (citing vitek v. jones, 445 u.s. 480 (1980)). 130 id. at 2517. 131 id. at 2516. 132 turner, 131 s. ct. at 2513. 133 id. (quoting mr. turner as saying that he had a drug problem which caused him to fall behind on his child support payments). 134 id. 135 id. at 2514. 136 id. at 2515–16. 137 turner, 131 s. ct. at 2516. 2014 columbia journal of race and law 249 provide no definitive answer to that question.”138 however, in answering the question, the court framed its approach by engaging with and applying the factors it outlined in mathews v. eldridge as relevant to determining “what specific safeguards the constitution’s due process clause requires in order to make a civil proceeding fundamentally fair.”139 given that turner is the most recent example of how the court evaluates these factors, it is instructive to study the court’s reasoning for clues that shed light on how it might evaluate future right-to-counsel arguments. the three eldridge factors are: “(1) the nature of the ‘private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].’”140 in turner, the court attempted to balance these factors, in addition to identifying mitigating factors that, in the court’s judgment, ameliorated turner’s concerns. first, the court acknowledged that the “‘private interest [the liberty interest in being free from incarceration] . . . ’ argues strongly for the right to counsel” turner requested.141 however, the court found that the threat of incarceration does not require that counsel always represent a party in civil proceedings.142 moreover, justice breyer identified four mitigating safeguards that ease challenges that parties face in proceeding pro se.143ˆthe united states government, through an amicus filing, highlighted these safeguards to the court. these factors influenced the court’s finding that a categorical right to counsel in civil contempt hearings is not required by the fourteenth amendment’s due process clause144: “we consequently hold that the [due process clause] does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year).”145 although the court held against turner’s constitutional claim, the decision is limited because it only applies to civil contempt proceedings.146 moreover, the opinion itself narrows the possible effects of this decision in other contexts. particularly, the court went out of its way to state that it was not passing judgment on cases that are legally complex and where there is a power asymmetry—meaning cases where an attorney represents one party and the other party proceeds pro se.147 as such, the court left the door open to claims with different circumstances where appointed counsel might be necessary.148 138 id. 139 id. at 2517. 140 id. at 2518. 141 id. 142 id. 143 turner, 131 s. ct. at 2519 (“those safeguards include (1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.”). 144 id. (“in presenting these alternatives, the government draws upon considerable experience in helping to manage statutorily mandated federal-state efforts to enforce child-support orders . . . this court’s cases suggest, for example, that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient.”). 145 id. at 2520 (emphasis in original). 146 id. 147 see id. at 2512 (“we conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the state need not provide counsel to the noncustodial parent (required to provide the support). but we attach an important caveat, namely, that the state must nonetheless have in effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 250 whether implicitly or purposefully, the court in turner invoked the language, spirit, and intent of aguilera-enriquez’s concern with the constitutional imperative of providing a “fundamentally fair” proceeding in a civil context. had an attorney represented the custodial parent, the court’s holding in turner may have been different. in highlighting the fact that the custodial parent was unrepresented by counsel, the court appears to be concerned with providing a level playing field and avoiding fairness asymmetries in adversarial proceedings. moreover, the dynamics identified by the court—the legal complexity of the civil proceeding and the representation or non-representation of one or both parties by counsel—are present in all immigration removal proceedings. attorneys always appear on behalf of ice—the government’s prosecuting arm in removal proceedings—and immigration laws are very complicated. although it is unclear whether the court would consider the fairness asymmetry regarding attorney representation between parties or a case’s legal complexity dispositive in a future case, these two factors would likely play out differently under different factual circumstances. as such, turner advances our understanding of what adequate safeguards would be necessary to ensure that a person’s due process rights are not violated. the case also provides clues regarding what factors the court might consider important in determining whether, as a constitutional matter, the government must provide counsel to an indigent litigant in a different civil proceeding in a future case.149 additionally, the eldridge multifactor test with a turner gloss should be used by ijs in individual cases. this is allowable as an exercise of the ag’s authority to delegate and direct his employees to carry out necessary functions, as discussed in part v.a. as such, ijs should use the turner-supplemented eldridge test discussed above to determine whether or not a qualified legal representative is required to ensure that a removal proceeding does not run afoul of an immigrant’s due process rights.150 place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.”) (emphasis added); see also id. at 2520 (“neither do we address what due process requires in an unusually complex case where a defendant ‘can fairly be represented only by a trained advocate.’”) (emphasis added). 148 as to the disposition of turner’s case itself, the court vacated the south carolina supreme court’s judgment because turner received “neither counsel nor the benefit of alternative procedures” like the ones the court described in its decision. id. at 2520. 149 other commentators also use turner to advance arguments for providing immigrants in removal proceedings with legal representation. see e.g., daniel curry, current development, the march toward justice: assessing the impact of turner v. rogers on civil access-to-justice reforms, 25 geo. j. legal ethics 487 (2012) (arguing that the supreme court's opinion in turner v. rogers requires court reforms ensuring that everyone, regardless of income, can seek justice in civil courts); shane t. devins, comment, using the language of turner v. rogers to advocate for a right to counsel in immigration removal proceedings, 46 j. marshall l. rev. 893 (2013) (arguing for the right to appointed counsel for indigent noncitizens in removal proceedings and calling for a revision of the statutory language of the immigration and nationality act). they argue for a broader right to counsel. in contrast, this note marshals turner, other cases, and current statutory law that collectively provide sufficient legal authority to create a framework in which the “fundamental fairness” standard can be effectuated through a caseby-case regime. 150 although it goes without saying, this section does not suggest that this framework should lead to a specific outcome in a given case. it merely purports to put forth a set of criteria to consider when determining whether an individual immigrant needs to be represented. 2014 columbia journal of race and law 251 c. the administrative framework having 1) established that statutory authority exists for the attorney general to direct ijs to make determinations regarding due process requirements and 2) argued that turner should inform the eldridge due process test, this section puts forth an administrative framework to effectuate aguileraenriquez’s case-by-case approach. this framework would apply to cases involving the three immigrant categories identified in part iii.a. it also suggests that, should a version of immigration reform along the lines that the senate has proposed pass, the eldridge test with a turner gloss should be used to determine who obtains representation. this section assumes that an immigrant is an unaccompanied minor, is an immigrant in detention who raises asylum as a defense to removal, or is mentally ill.151 as relates to mentally ill immigrant detainees, providing recommendations for procedures to accurately determine whether an individual immigrant is, in fact, mentally incompetent is beyond the scope of this note.152 however, given the recent policy changes related to this population, qualified representatives should represent those deemed mentally incompetent going forward even absent this framework. this section details a recommendation for giving ijs the primary role in determining whether a qualified representative must represent an immigrant who falls into one of the categories discussed above going through removal proceedings. this section argues that procedures should be adopted that direct ijs to utilize the test discussed in part v.b in individual cases.153 however, it does not argue that the ina mandates the government to unilaterally provide federally funded appointed counsel.154 there are other 151 given that as a result of the eoir’s policy change detained immigrants who are deemed mentally incompetent will have qualified representatives made available to them, that population is not the focus here. however, to the extent that the policy change does not lead to increased representation by qualified representative of mentally incompetent immigrant detainees, this framework can and should also apply to that population, if implemented. 152 for detailed proposals on competency hearings, see letter from merrill rotter, m.d., supra note 55; clapman, hearing difficult voices, supra note 9. these can still inform the final rules. also, and most importantly, the eoir has issued a policy for determining whether an immigrant is mentally incompetent which is now being used in practice. the resulting field experience will also inform the final rule as well. 153 strauss et al., administrative law: cases and comments 699 (clark et al. eds., 11th ed. 2011) (citing elena kagan, presidential administration, 114 harv. l. rev. 2245, 2319 (2001)) (arguing that when congress delegates power to an executive official, it also is delegating power to the president.). as such, the obama administration should support giving ijs the responsibility of ensuring particularly vulnerable immigrants’ due process rights since that would lend further credence to the proposed framework. indeed, it likely cannot happen without the white house’s support. 154 this, however, should not be understood to mean that the doj and/or dhs could not choose, in their discretion, to use federal funds to provide qualified representatives. the government can provide qualified representatives to vulnerable immigrants using federal funds. however, this would be a policy choice. this note argues that if they choose not to provide representation, or cannot procure representation through other means, the case should be closed. see order re plaintiffs’ motion, supra note 24, at 12 (“yet, writing on behalf of the office of the general counsel for the dhs, david p. martin, principal deputy general counsel, confirmed that the plain language of section 1362 does not lend itself to the interpretation that it ‘prohibits the provision of counsel at government expense . . . .’ ‘nothing in [8 u.s.c. §§ 1229a(b)(4), 1362] or 5 u.s.c. §3106 prohibits the use of discretionary federal funding for representation of aliens in immigration proceedings’ and ‘[w]hether any particular expenditure would be permissible . . . depends on a fiscal law analysis of the specific proposed funding source.’ this court agrees that these statutes cannot reasonably be interpreted to forbid the appointment of a qualified effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 252 mechanisms that the executive branch can employ to safeguard immigrants’ due process rights up to, and including, administrative closure of an individual case. as discussed above, commentators have addressed how the eldridge factors should be used to determine if an immigrant facing removal proceedings is being denied her due process rights.155 moreover, at least one author has discussed how he believes the turner factors would impact due process analysis in the immigration removal context.156 the next necessary step to take in order to ensure the effectuation of particularly vulnerable immigrants’ due process rights is to incorporate those considerations in the adjudicatory process that ijs conduct in removal proceedings. that is, procedures in individual removal proceedings must allow ijs to take affirmative actions that will ensure due process protections. ijs should—as a threshold question before the merits of a particular immigrant’s case are evaluated—consider whether legal representation is necessary to safeguard the “fundamental fairness” of removal proceedings for the three groups identified in part iii.a. reimagining removal proceedings to allow ijs to consider whether a legal representative is necessary to safeguard a vulnerable immigrant’s rights is critical. requiring ijs to ask themselves the above question may seem anathema to some given the enormous pressures, large caseloads, and other constraints that ijs currently face.157 however, ensuring the “fundamental fairness” of the proceedings is also exceedingly important.158 thus, ensuring that qualified representatives represent vulnerable immigrants in removal proceedings is of paramount importance. given the complexity of the proceedings, the fact that an ice prosecutor always represents the government, and that immigrants in the identified groups face unique challenges in effectively representing themselves, their need for legal representation cannot be overstated. moreover, within the new proposed procedures, an ij should determine as soon as he or she receives a case, whether the immigrant in question falls into one of three categories—mentally incompetent persons, unaccompanied minors, or one who asserts that she is seeking asylum as an affirmative defense to removal. if a person falls into one of these three categories, the ij should send that file down a different administrative path to be created by eoir. representative to individuals who otherwise lack meaningful access to their rights in immigration proceedings as a result of mental incompetency.”) (emphasis added). 155 see pitsker, supra note 15, at 171. 156 see curry, supra note 149. 157 see clapman, supra note 9, at 391. 158 see federal article iii judges on the fairness of immigration hearings, supra note 7; benslimane v. gonzales, 430 f.3d 828, 829–30 (2005). see also order re plaintiffs’ motion, supra note 69, at 34–35 (“the record in this case demonstrates that delaying relief for the class members [mentally ill immigrant detainees in arizona, california, and washington] results in an inability to fairly participate in removal proceedings and may result in prolonged detention without adequate representation or a bond hearing for an ever-increasing number of class members.”). see also unaccompanied alien children in immigration proceedings, supra note 81 (acknowledging the complexity of immigration law and the possibility that unaccompanied children do not understand the legal proceedings against them, thus heavily implying the potential for an unfair proceeding); pitsker, supra note 15, at 197 (“[b]oth the expanded practice of detaining asylum seekers and financial, social, and cultural restraints often hamper the meaningful exercise of [the right to counsel at no expense to the government].”). 2014 columbia journal of race and law 253 precedent already exists for the creation of a separate procedural route that cases follow under special circumstances.159 as such, this suggestion is not a radical departure from existing practice. for example, the doj suggests that ijs maintain a separate docket of unaccompanied minors.160 the stated purpose for these “juvenile dockets” is to “facilitate consistency, encourage child-friendly courtroom practices, and promote pro bono representation for unaccompanied alien children.”161 as of 2008, there were ten immigration courts throughout the country that maintained separate “juvenile dockets.”162 secondly, an ij should ask: will the lack of representation prevent the immigrant before me from adequately presenting his or her case? in answering this question—before moving onto the merits—an ij should endeavor to consider the eldridge factors but with a turner gloss, as argued in part v.b. in addition to considering the three eldridge factors,163 an ij should also consider whether: 1) one or both parties are represented by counsel and 2) the complexity of the legal case against the immigrant. justice breyer pointed out these latter two factors in the turner decision and, in doing so, signaled that these factors are important to determining the “fundamental fairness” of a civil proceeding.164 after taking these factors into account, if an ij determines that continuing with the removal proceedings while the immigrant is unrepresented by a qualified representative imposes too great a risk for a due process violation, the ij should make every effort to secure representation. if, however, no representation is obtained for the detained immigrant within six months,165 the ij should move to administratively close the case, assuming that the immigrant is not a risk to the community and that the immigrant’s removal is a low priority for the government.166 given that 8 u.s.c. §1229a(b)(4) states that legal representation cannot be provided at the government’s expense, it is unlikely that the doj or dhs would choose to provide representation at their expense, even though a federal district court in california recently stated that the government could choose to use federal funds in this manner.167 as an alternative to providing counsel, ice can cease prosecuting a case against an immigrant who poses no threat to the community and who can be released into the custody of responsible adults (in the case of unaccompanied minors) or family members and friends. in this proposed framework, an ij’s decision to administratively close a case would trigger a review of that case by ice. ice, in turn, should decide whether or not to exercise its prosecutorial discretion and cease pursuing that immigrant’s 159 see unaccompanied alien children in immigration proceedings, supra note 81 (discussing, in part, a separate “juvenile docket” for unaccompanied noncitizen minors). 160 id. 161 id. 162 id. 163 turner, 131 s. ct. at 2518. (“(1) the nature of the ‘private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].’”). 164 id. at 2520. 165 see discussion in the footnote, supra note 105. 166 o’leary, supra note 106 (discussing, inter alia, ij’s ability to administratively close cases). 167 see order re plaintiffs’ motion, supra note 24. this order was issued by a federal district court and will likely be challenged. as such, it is unclear whether the government will indeed follow the order and use federal funds in this manner. effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 254 removal. in effect, this would emulate the process ice is currently undertaking in its exercise of prosecutorial discretion under its deferred action for childhood arrivals (“daca”) initiative.168 moreover, as discussed above, ijs could be given the authority to take the proposed actions through regulation.169 together, 8 u.s.c. §1103(g)(2), 8 u.s.c. §1101(b)(4), and 28 u.s.c. §510 provide sufficient authority for the ag to make a determination of the due process requirements necessary to safeguard an immigrant’s rights in an individual case and to, in turn, delegate that function to ijs.170 additionally, given the ij’s hands-on role in developing the record throughout the proceedings, extending the ij’s functions to consider whether an immigrant can adequately make her case for herself without assistance, though difficult, would not be impossible.171 in effect, an ij is currently tasked with both developing the record in a given case and adjudicating it; that is deciding whether or not an immigrant will remain or be removed from the country. as such, given the high level of responsibility and interpretive ability that they are already given and the level of independent discretion and substantive legal analysis required to perform their duties, having the ag delegate limited and constrained constitutional interpretive authority to ijs is within his prerogative and something ijs could handle. given the important nature of the concerns, it makes sense to consider these constitutional protections in individual cases in immigration court. since each case is appealable to the bia, reviewable by the ag himself, and judicial review by article iii courts is also available, there are sufficient checks on ij decisions. nevertheless, some may believe that the framework advanced here is unnecessary. they may wonder how ijs, some of whom currently make poor decisions,172 could possibly be up to this task. that is a fair concern. others may have deeper concerns. in angov v. holder, judge kozinski articulates serious reservations with what he terms the “constitutionalization” of administrative law.173 he argues 168 janet napolitano, exercising prosecutorial discretion with respect to individuals who came to the united states as children, department of homeland security (june 15, 2012), http:// www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-aschildren.pdf. in the proposed administrative framework, ice would be directed to cease the prosecution in removal proceedings of immigrants whose case requires that they be represented by counsel but for whom a qualified representative could not be secured within six months. ice’s review of a specific case would begin once the ij on the case administratively closes a case in the immigration court’s docket, effectively placing ice in the position of deciding whether or not to continue to prosecute the case. ice’s review would be important because it is their decision that would provide finality to an immigrant since the agency would no longer be seeking the immigrant’s removal. 169 8 u.s.c. §1101(b)(4) (“the term ‘immigration judge’ means an attorney whom the attorney general appoints as an administrative judge within the executive office for immigration review, qualified to conduct specified classes of proceedings, including a hearing under section 1229a of this title. an immigration judge shall be subject to such supervision and shall perform such duties as the attorney general shall prescribe, but shall not be employed by the immigration and naturalization service”) (emphasis added). see also 28 u.s.c. §510; 8 c.f.r. §1003.10(b). 170 for the statute’s relevant language, see, supra notes 114, 115, 116, 117. 171 8 u.s.c. §1229a(b)(1) (2006) (“the immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses. the immigration judge may issue subpoenas for the attendance of witnesses and presentation of evidence. the immigration judge shall have authority (under regulations prescribed by the attorney general) to sanction by civil money penalty any action (or inaction) in contempt of the judge's proper exercise of authority under this chapter.”). 172 see discussion regarding federal article iii judges, supra note 7. 173 angov v. holder, 736 f.3d 1263, 1272 (9th cir. 2013) (holding that an immigrant’s due process rights were not violated when, in seeking immigration relief, he was not allowed to cross2014 columbia journal of race and law 255 that whatever process congress provides is sufficient.174 he is particularly concerned with the notion that administrative processes are meant to be informal and flexible.175 in his view, to push for increased formal protections would transform immigration removal proceedings from flexible forums to overly rigid ones, upending the benefits of situating these proceedings within an administrative framework. however, allowing for the possibility of qualified representatives to properly present an immigrant’s case could just as likely increase the quality of removal proceedings and speed up the adjudicatory process. this would help alleviate the concerns over potentially losing the efficiencies gained from informal procedures. in short, facilitating increased involvement by legally trained advocates could also lead to efficiencies and higher quality outcomes, which could lead to savings in the long run. even in cases where qualified representatives cannot be secured, having a low-priority case dismissed at the end of six months would reduce caseloads and prevent bad decisions. as such, were this framework implemented, ijs would not make decisions on the merits until the particular due process safeguard of having a qualified representative present when necessary is considered and a determination made on that procedural question. finally, having the current regime persist, where the necessity of legal representation is never raised or considered anywhere by anyone, would result in ongoing harm. d. immigration reform and potential application of the eldr idge test with a turner gloss although comprehensive immigration reform has not passed, the version of immigration reform that cleared the senate includes language that would provide counsel to unaccompanied minors and mentally incompetent immigrants in removal proceedings.176 this version would also allow the attorney general to “appoint or provide counsel to aliens in immigration proceedings conducted under section 240 of [the ina]” in his “sole and unreviewable discretion.”177 it also provides funding to cover the costs of these added procedures.178 the proposed eldridge test with a turner gloss detailed in part v.b would map onto this, or a similar, legislative regime delegating explicit authority to the ag to appoint counsel as well. although, as examine the underlying sources of information that provided material information in evidence presented against him). however, several other circuits, in substantially similar circumstances, have held that an immigrant’s constitutional and/or due process rights were violated. see pouhova v. holder, 726 f.3d 1007 (7th cir. 2013) (holding that admission of two hearsay documents denied an immigrant her procedural rights). see also ezeagawuna v. ashcroft, 325 f.3d 396 (3d cir. 2003); anim v. mukasey, 535 f.3d 243, 256–58 (4th cir. 2008); alexandrov v. gonzales, 442 f.3d 395 (6th cir. 2006); banat v. holder, 557 f.3d 886, 892–93 (8th cir. 2009). lin v. u.s. dep’t of justice, 459 f.3d 255, 269 (2d cir. 2006) (holding the same as its sister circuits but on statutory, not constitutional, grounds: “although we find the logic of these cases persuasive, we do not reach the constitutional issue because the statutory standard of review requires vacatur.”). as such, courts around the country have extended constitutional due process protections to immigrants in certain circumstances. 174 id. at 1273. 175 id. 176 s. 744, 113th cong. §3502(c) (2013), available at http://www.gpo.gov/fdsys/pkg/bills113s744es/pdf/bills-113s744es.pdf. 177 s. 744, 113th cong. §3502(a)(4)(b) (2013), available at http://www.gpo.gov/fdsys/pkg /bills-113s744es/pdf/bills-113s744es.pdf. 178 s. 744, 113th cong. §3502(d) (2013), available at http://www.gpo.gov/fdsys/pkg/bills113s744es/pdf/bills-113s744es.pdf. effectuating the due process rights of particularly vulnerable immigrants vol. 4:2 256 argued above, the ag can provide additional procedural safeguards to certain groups under current law, should language like the one proposed in the senate’s version of immigration reform become law, the ag could extend these protections to anyone in his discretion, beyond the groups identified in this note. in effect, congress would be mandating that the ag develop a process to determine which immigrants should receive legal representation. the test proposed in part v.b along with the administrative framework proposed in part v.c would be an effective way to operationalize such a directive. as such, should this or similar language become law, the ag should direct ijs to conduct an eldridge test with a turner gloss inquiry, along the lines proposed by this note, whenever there is reason to believe that a person would require representation in their immigration case in order to comport with due process. vi. conclusion this author readily acknowledges that the optimal solution to the fairness deficit currently present in the adjudication of immigration removal proceedings is for congress to make wholesale systemic reforms that ensure due process protections. other commentators have repeatedly called for a complete rethinking and redesign of the system. such a move, of course, would require congressional action. however, to allow the status quo to persist is untenable. the current state of affairs too often calls into question the integrity and fairness of the decisions coming out of immigration courts, particularly as these impact vulnerable immigrant groups. given that current common and statutory law supports the creation of an administrative response, the executive branch should act to realize the promise of due process protections within the immigration context. to date, the department of justice and the department of homeland security have taken promising steps to address the situation by making significant policy changes, initiating rulemaking on these issues, and exercising prosecutorial discretion to terminate removal proceedings in certain lowpriority cases, principally through daca. moreover, a federal district court in california has issued an unprecedented order directing the government to provide qualified representatives to certain mentally incompetent immigrant detainees.179 clearly, much has been done yet more is required. initializing and finalizing a rulemaking to implement the framework put forth in this note would allow for all interested parties to be heard and lend the resulting administrative framework greater legitimacy. additionally, utilizing the test put forth in this note in deciding which immigrants would receive representation in connection with the language in the senate’s version of immigration reform, would also effectuate immigrants’ due process rights should that language become law. to do nothing, however, should not be an option. it would not be in keeping with our collective national values regarding the provision of justice or our obligations under the constitution’s due process protections. more importantly, it would allow a sorry state of affairs to persist unnecessarily. 179 see order re plaintiffs’ motion, supra note 24. microsoft word cjrl gonzález berdecía f16 eic v3.docx puerto rico before the supreme court of the united states: constitutional colonialism in action andrés gonzález berdecía* —“is it essential to your case that we recognize puerto rico as a sovereign?” —“it is not essential that you recognize puerto rico as a sovereign with a capital ‘s’.”1 the united states supreme court’s october 2015 term will go down in history as the most significant one for puerto rico-united states relations in more than a century. by opting to address the issues presented in puerto rico v. sánchez valle, a constitutional case arising from the commonwealth courts, and puerto rico v. franklin california tax-free trust, a statutory case arising from the united states district court for the district of puerto rico, the answer to which directly related to one’s understanding of the nature of the political status between puerto rico and the united states, the united states supreme court set in motion a series of unprecedented actions by the commonwealth government, the president, congress, commonwealth and federal judges, and * associate, sepulvado & maldonado, psc.; b.a., university of puerto rico, 2008; j.d., university of puerto rico, 2011; ll.m., columbia law school, 2014; united states supreme court fellow, naag center for supreme court advocacy, spring 2016. the views and opinions expressed herein do not necessarily state or reflect those of the author’s employer. the author would like to extend his gratitude to the editorial staff of the columbia journal of race and law for their helpful editing contributions. the author would also like to thank attorney alejandro suárez vincenty for his valuable input, professor ernesto l. chiesa aponte for his mentorship over the years, and attorney aura colón solá, the author’s wife, for her support throughout this and many other endeavors. 1 transcript of oral argument at 6, puerto rico v. sánchez valle, 136 s. ct. 1863 (2016) (no. 15-108). no. 2:80] puerto rico before the u.s. supreme court 81 civil society in general—both in san juan and washington, d.c.—that illustrate, now more clearly than ever, why puerto rico legally remains a 21st century colony of the united states. part ii of this article will discuss puerto rico v. sánchez valle, setting forth the underlying facts of the case, the legal issues presented, what puerto rico courts held, and what the united states supreme court ultimately decided. part iii will focus on puerto rico v. franklin california tax free trust, following the same basic structure. part iv will illustrate how both cases reveal unequivocally that the united states’ legal treatment of puerto rico amounts to pure colonialism. finally, part v will conclude by analyzing whether the supreme court of the united states can, or should, take action to fix this reality. i. introduction .............................................................. 82 ii. puerto rico v. sánchez valle: the commonwealth’s plea for [s]overeignty ............. 85 a. life before sánchez valle ..................................... 85 b. the case in puerto rico ........................................ 94 1. the court of first instance ............................. 94 2. the court of appeals ........................................ 97 3. the supreme court of puerto rico .................. 99 c. the case before the united states supreme court ..................................................................... 108 iii. puerto rico v. franklin california tax-free trust: the commonwealth’s plea to go bankrupt ................................................................... 113 a. the commonwealth’s economic struggle .......... 113 b. the case in federal court .................................. 117 1. the district court .......................................... 117 2. the first circuit ............................................. 119 c. the case before the united states supreme court ..................................................................... 124 iv. solidifying constitutional colonialism: the interplay between legal fiction and social reality ....................................................................... 128 82 columbia journal of race and law [vol. 7:1 v. breaking the chain: the role of the united states supreme court ............................................ 141 vi. conclusion ............................................................... 148 i. introduction “this is the most important case on the constitutional relationship between puerto rico and the united states since the establishment of the commonwealth in 1952.”2 so began the petition for writ of certiorari that the commonwealth of puerto rico filed before the supreme court of the united states in july 2015 in commonwealth of puerto rico v. luis m. sánchez valle to decide whether the commonwealth of puerto rico and the federal government are separate sovereigns for purposes of the double jeopardy clause of the united states constitution. just one month later, puerto rico asked the court to review a second case, commonwealth of puerto rico v. franklin california tax-free trust, to decide whether chapter 9 of the federal bankruptcy code preempts a puerto rico statute creating a mechanism for the commonwealth’s public utilities to restructure their debts, this time stating that “[t]his case involves puerto rico’s ability to respond to the most acute fiscal crisis in its history.”3 indeed, if sánchez valle is the most important case on the constitutional relationship between puerto rico and the united states, then franklin california tax-free trust may very well be the most important case on the statutory relationship between them. uncharacteristically, the court granted both petitions, projecting the october 2015 term as the most significant one for puerto rico in more than a century.4 2 petition for writ of certiorari at 1, puerto rico v. sánchez valle, 136 s. ct. 1863 (2016) (no. 15-108). 3 petition for writ of certiorari at 1, puerto rico v. franklin cal. tax-free trust, 136 s. ct. 1938 (2016) (no. 15-233). 4 in march 2016, the court granted certiorari in a third case arising from puerto rico, this time a federal criminal prosecution. in bravofernández v. united states, 136 s. ct. 1491 (2016) (no. 15-537), a unanimous court held that the the collateral estoppel prong of the double no. 2:80] puerto rico before the u.s. supreme court 83 since the commonwealth’s creation in 1952, puerto ricans have been deeply divided as to what the nature of the relationship between puerto rico and the united states actually is and what it should be. for more than six decades, independence and statehood supporters have argued that the commonwealth and its constitution did not alter puerto rico’s constitutional status as an unincorporated territory of the united states subject to congress’s plenary powers, which, everyone agrees, is nothing more than a colonial relationship. commonwealth supporters have fervently opposed such criticism, instead contending that puerto rico “decolonized” itself in 1952 through the enactment of the constitution, when it became the sui generis entity that the world knows as the estado libre asociado, supposedly created with the free consent of the sovereign people of puerto rico as a compact of association with the united states. because of this issue’s obvious significance to the very political and legal structure of the island’s government, puerto ricans have organized themselves electorally mostly around each particular group’s preferred position on the status question. the same two parties always alternate power: those who favor the annexation of puerto rico as a full state of the union vote mostly for the new progressive party (npp), while those who favor the commonwealth vote mostly for the popular democratic party (pdp). and most people who favor independence vote—always losing—for the puerto rican independence party (pip).5 though other parties have sprung up throughout the years attempting to break this jeopardy clause does not bar the government from retrying defendants acquitted on some counts but inconsistently convicted on other counts that were later vacated based on instructional error. 5 brief history of elections in puerto rico, puerto rico encyclopedia, http://www.enciclopediapr.org/ing/article.cfm?ref=09012602 [http://perma.cc/5k2g-zbsn]. for many historically complex reasons, it is fair to say that fewer independence supporters vote “as a bloc” for the puerto rican independence party (pip) than do commonwealth supporters for the pdp or statehood supporters for the npp. 84 columbia journal of race and law [vol. 7:1 mold, none have succeeded electorally or lasted for a significant period of time.6 for better or worse, each party’s members’ ideological differences with regard to economic and social policies take a backseat to their common perspective on the status question. this divide extends far beyond the political electoral arena; it permeates puerto rican society in general and arouses almost religious-like fervor. only if one is aware of this social dynamic can one understand the fervor with which the puerto rican judges involved in both cases expressed their particular views or why some of them referred to puerto rico as their nation while others referred to the united states as theirs. only then can one understand why these are the most important puerto rico cases that the united states supreme court has decided since the creation of the commonwealth, and probably since the island became a united states territory in 1898. the court has finally ended the six-decade old political debate. the commonwealth lost. much will be said about these cases in the upcoming years, especially about whether the court got them right. that, however, is not the purpose of this article. though i will discuss them thoroughly, this article’s true intention is to illustrate how these two cases dispelled any lingering doubts as to the colonial nature of the relationship between puerto rico and the united states. part ii of this article will discuss puerto rico v. sánchez valle, setting forth the underlying facts of the case, the legal issues presented, what puerto rico courts held, and what the supreme court ultimately decided. part iii will focus on puerto rico v. franklin california tax free trust. part iv will illustrate how both cases reveal unequivocally that the united states’ legal treatment of puerto rico amounts to pure colonialism. part v will conclude by 6 id. no. 2:80] puerto rico before the u.s. supreme court 85 analyzing whether the supreme court of the united states can, or should, fix this reality. ii. puerto rico v. sánchez valle: the commonwealth’s plea for [s]overeignty a. life before sánchez valle almost one hundred years ago, a man named vito lanza was charged in federal court with possessing, manufacturing, and transporting intoxicating liquor7 in violation of the national prohibition act, commonly known as the volstead act.8 because he had already been convicted in washington state court of possessing, manufacturing, and transporting the same liquor, lanza argued in federal court that two punishments for the same act, one under the federal law and one under state law, violated the double jeopardy clause of the fifth amendment.9 the district court agreed. but the supreme court overruled. speaking for a unanimous court in united states v. lanza, chief justice taft concluded that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of 7 united states v. lanza, 260 u.s. 377, 378 (1922). 8 national prohibition act of 1919, pub. l. no. 66-66, 41 stat. 305 (repealed 1933). 9 lanza, 260 u.s. at 379. the fifth amendment provides that [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. u.s. const. amend. v (emphasis added). 86 columbia journal of race and law [vol. 7:1 both and may be punished by each.”10 therefore, the court held, lanza “committed two different offenses by the same act, and a conviction by a court of washington of the offense against that state is not a conviction of the different offense against the united states, and so is not double jeopardy.”11 thus, the “dual sovereignty” doctrine was born.12 though the court settled the double jeopardy issue with regard to federal-state relations, the question as to its application in puerto rico after the adoption of the constitution of the commonwealth in 1952 remained unaddressed. that changed in 1987 when two former police officers were convicted in the united states district court for the district of puerto rico of civil rights violations for assaulting and beating three men, after having been previously convicted in commonwealth courts for the same acts. in united states v. lópez andino,13 the court of appeals for the first circuit rejected appellants’ claim that puerto rico and the united states were “the same sovereign” for double jeopardy purposes. the first circuit straightforwardly applied lanza to puerto rico, concluding that “[a]lthough the legal relationship between puerto rico and the united states is far from clear and fraught with controversy, it is established that puerto rico is to be treated as a state for purposes of the [d]ouble [j]eopardy [c]lause.”14 10 lanza, 260 u.s. at 382 (emphasis added). 11 id. 12 even though lanza predated the world of selective incorporation of the bill of rights through the due process clause of the fourteenth amendment (“the fifth amendment, like all other guaranties in the first eight amendments, applies only to proceedings by the federal government,” id.), its holding, that the double jeopardy clause applied to the states, remained intact after the supreme court decided benton v. maryland, 395 u.s. 784 (1969) (overruling palko v. connecticut, 302 u.s. 319 (1937)). see also heath v. alabama, 474 u.s. 82 (1985). 13 united states v. lópez andino, 831 f.2d 1164, 1168 (1st cir. 1987). 14 id. no. 2:80] puerto rico before the u.s. supreme court 87 puerto rican circuit judge juan r. torruella concurred. he agreed with the rest of the panel that the federal prosecution there was not barred by the double jeopardy clause. however, judge torruella believed that the majority’s discussion regarding puerto rico’s sovereignty for purposes of double jeopardy was both unnecessary to decide the case and erroneous as a matter of law because “puerto rico is constitutionally a territory, thus lacking that separate sovereignty which would allow consecutive puerto rico/federal prosecutions for what would otherwise be the same offenses.”15 the supreme court of puerto rico took on this question just one year later in puerto rico v. castro garcía.16 unsurprisingly, the court sided with the first circuit majority in lópez andino, concluding that since 1952 the island’s political power derived from the consent and will of the people of puerto rico. the majority rejected the claim that the court was bound by puerto rico v. shell co.,17 where the united states supreme court stated that, given the territorial condition of puerto rico, its statutes stemmed from one sovereign power, i.e., the federal power. instead, the majority concluded that “the pronouncements contained in dictum at that time, 1937, are currently devoid of any legal basis and should be left to rest in peace.”18 the supreme court of puerto rico also relied on united states v. wheeler,19 where the united states supreme court held that the navajo tribe, although under the control of congress, is a sovereign independent of the federal government for purposes of the dual sovereignty doctrine because its power to prosecute the members of the tribe emanates from its “primeval sovereignty.”20 15 id. at 1172. 16 puerto rico v. castro garcía, 20 p.r. offic. trans. 775, 823 (1988). 17 puerto rico v. shell co., 302 u.s. 253 (1937). 18 castro garcía, 20 p.r. offic. trans. at 799. 19 id. at 800. 20 united states v. wheeler, 435 u.s. 313, 325 (1978). 88 columbia journal of race and law [vol. 7:1 justice negrón garcía issued a short concurring opinion,21 stating that: it is an historical fact that after the approval of the commonwealth constitution on july 25, 1952, puerto rico’s juridico-political relations with the united states may be characterized as peculiar, distinct and unique within the constitutional framework of the north american federal system. the issue has sparked, and still generates, intense debates in the different sectors of public opinion. there are in the legal sphere areas of honest differences of opinion not as yet defined by the federal supreme court in its function as ultimate interpreter of the united states constitution.22 the concurring justice approvingly claimed that the majority abstained from drawing the court into “the politico-partisan debate that these differences generate,” stating that their decision was based on “a strictly legal standpoint” and that constitutionally speaking, the pertinent historical and political precedents constitute solid grounds on which to recognize that the people of puerto rico enjoy sufficient sovereign attributes, although not of a classic mold, to conclude and adjudicate—by way of analogy to the legal approach prevailing in relation to the states of the union—that successive criminal prosecutions in our courts and in the federal courts for the same offense do not impinge on 21 in puerto rico, lower court judges and supreme court judges are referred to equally as “juez” or “jueza”—the spanish word for “judge.” however, for purposes of this article, judges of the supreme court of puerto rico are referred to as “justices,” the term most commonly used in the united states to designate judges from a state’s highest court. 22 castro garcía, 20 p.r. offic. trans. at 820. no. 2:80] puerto rico before the u.s. supreme court 89 the [d]ouble [j]eopardy [c]lause contained in art. ii, section 11 of our bill of rights or in the fifth amendment to the federal constitution.23 the lone dissenter was justice francisco rebollo lópez.24 contrary to the concurrence, the dissent started by accusing the majority of playing politics, stating that: although in our personal capacity we have the absolute constitutional right to believe and think in accordance with our particular view of life and the world we live in, we, as members of this court, cannot afford the luxury of acting and deciding the issues brought to our consideration in accordance with those personal beliefs or wishes, in total abstraction from the legal reality in which we are immersed.25 rebollo lópez concluded that, although: public law no. 600 of the eighty-first united states congress passed on july 3, 1950, authorizing the people of puerto rico to organize a local government under its own constitution, it is very important that we always keep in mind that being said public law 600 ‘an act’ of said congress, it is not binding upon future congresses and it can be unilaterally amended by any future congress.26 23 id. at 820–21 (internal citations omitted). 24 for an analysis on justice rebollo lópez’s judicial philosophy, see andrés gonzález berdecía & alejandro suárez vincenty, análisis y perfil adjudicativo de los jueces y de las juezas del tribunal supremo de puerto rico: francisco rebollo lópez, 80 rev. jur. u.p.r. 107 (2011). 25 castro garcía, 20 p.r. offic. trans. at 822 (rebollo lópez, j., dissenting). 26 id. at 828 (internal citations omitted). 90 columbia journal of race and law [vol. 7:1 the dissent quoted several statements made by american and puerto rican sponsors of the bill at the time of its enactment, including then-governor luis muñoz marín27 and thenresident commissioner antonio fernós isern, who respectively stated that congress could unilaterally change the statute in the future, and that the act would not alter the powers of sovereignty acquired by the united states over puerto rico under the terms of the treaty of paris. the dissenting justice also relied on the fact that congress has continued to treat puerto rico differently from states of the union for statutory purposes, a practice the united states supreme court has upheld,28 pursuant to congress’s powers under the territorial clause of the united states constitution.29 the dissent found unpersuasive the majority’s reliance on wheeler since “puerto rico has never enjoyed a 27 luis muñoz marín (1898-1980) was the first democraticallyelected governor of puerto rico (1948-1964). in 1938, he founded the pdp as a center-to-left, pro-independence institution, which later abandoned both its leftist leanings and its independence stance in favor of the commonwealth option. he is unquestionably one of the most important political figures in puerto rican history and will forever be associated with the creation of the commonwealth. to get an idea of what he represents to pro-commonwealth puerto ricans, an american would probably have to merge george washington and franklin delano roosevelt into one person. to most pro-independence puerto ricans, however, he may fairly be characterized as puerto rico’s benedict arnold, with the title of most important political figure of the 20th century falling instead on proindependence nationalist party leader dr. pedro albizu campos (18911965). although statehood supporters did not have a similar “mythical” figure at that time, if they did, it would have to be luis a. ferré aguayo (1904-2003), founder of the new progressive party (npp) and the first prostatehood governor of puerto rico (1968-1972). thus, as shall be seen throughout this article, the reliance on muñoz marín’s statements by prostatehood judges in order to demonstrate the commonwealth’s lack of sovereignty is by no means a coincidence. 28 see, e.g., harris v. rosario, 446 u.s. 651 (1980); torres v. puerto rico, 442 u.s. 465 (1979); califano v. torres, 435 u.s. 1 (1978). 29 “the congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states; and nothing in this constitution shall be so construed as to prejudice any claims of the united states, or of any particular state.” u.s. const. art. iv, § 3, cl. 2 (emphasis added). no. 2:80] puerto rico before the u.s. supreme court 91 primeval sovereignty because . . . it was ceded by spain to the united states and it is on that original condition that its relationship with the united states is based.”30 in order to understand why a question settled almost three decades ago by both the supreme court of puerto rico and the first circuit reached the united states supreme court during the october 2015 term, historical background is necessary.31 in november 2004, anibal acevedo vilá won the governorship of puerto rico for the pro-commonwealth pdp while the pro-statehood npp obtained control of both houses of the legislature. during this four-year term, the supreme court of puerto rico went from having seven justices to only four.32 almost a decade before senate republicans contemplated the idea of not having public hearings on a presidential nominee for the united states supreme court, their puerto rican npp counterparts had already “successfully” employed the strategy in the commonwealth with regard to not one, but three supreme court vacancies, with opposition senator jorge de castro font expressly stating, repeatedly and unapologetically, that no one who did not support statehood would be confirmed.33 unlike president 30 castro garcía, 20 p.r. offic. trans. at 832 (emphasis added). 31 for further discussion regarding the changes to the composition of the court during this period and their impact on its case law, see luis j. torres asencio, las elecciones y el tribunal supremo, 80 grados (november 9, 2012, 1:10 am), http://www.80grados.net/las-elecciones-y-el-tribunalsupremo/ [https://perma.cc/3cvr-lew2] (in spanish). 32 the commonwealth constitution states, “the legislative assembly shall establish a retirement system for judges. retirement shall be compulsory at the age of seventy.” p.r. const. art. v, § 10. justice baltasar corrada del río retired in 2005 after turning seventy years old, pursuant to the commonwealth’s constitutional requirement; so did justice francisco rebollo lópez in 2008. justice jaime b. fuster berlingeri died from cardiac arrest in 2007. 33 in a phrase now well-known in puerto rican popular culture, de castro font stated that the npp would have a “banquete total” (literally translated as “total banquet,” but more appropriately as “the whole meal”), meaning that the npp would win the next elections and obtain control of the executive, legislature, and the supreme court. they did. de castro font, however, would not reap the benefits. in october 2008, he was 92 columbia journal of race and law [vol. 7:1 obama, however, governor acevedo vilá did not nominate a candidate. he lost the november 2008 election by a landslide34 and luis g. fortuño burset became governor. as promised, the pro-statehood npp quickly filled all three vacancies.35 in addition, the only npp-appointed justice left on the “original” court retired in 2010,36 giving fortuño the chance to appoint his fourth justice in less than two years.37 thus, for the first time ever, the supreme court of puerto rico was not “controlled” by justices appointed by the procommonwealth pdp. but simple majority was not enough. in compliance with the commonwealth’s constitutional requirement that any increase in the number of seats to the supreme court be officially requested by the court itself, the “new majority” did just that, and in 2011 governor fortuño nominated, and the senate happily confirmed, his fifth and sixth justices.38 thus, in just four years, the supreme court of puerto rico shifted from a moderate-to-conservative procommonwealth institution to a very-conservative prostatehood one.39 the effects were felt immediately, with the arrested and indicted on thirty-two federal charges including fraud, extortion, bribery and money laundering, for which he was later convicted and sentenced to five years in prison and three years on probation. 34 in march 2008, acevedo vilá was indicted on nineteen counts of campaign finance violations. five more counts were added later. one month after the general elections, judge paul barbadoro dismissed fifteen of the charges and in march 2009 a jury acquitted acevedo vilá of all remaining charges. 35 rafael l. martínez torres, mildred g. pabón charneco, and erick v. kolthoff caraballo took office in march 2009. 36 justice efraín rivera pérez resigned effective july 31, 2010. he died in a motorcycle accident in september 2013. 37 edgardo rivera garcía took office in august 2010. 38 roberto feliberti cintrón and luis f. estrella martínez took office in may 2011. 39 in november 2012, alejandro garcía padilla won the governorship for the pdp, which also regained control of both branches of the legislature. since that time, chief justice federico hernández denton retired due to age in 2014 and was succeeded as chief justice by associate justice liana fiol matta, who herself retired after turning seventy in early no. 2:80] puerto rico before the u.s. supreme court 93 “new court” upholding the validity of every economic and social conservative policy adopted by the npp administration, almost always over the dissent of the three suddenly-moreliberal pro-commonwealth justices.40 it should have come as no surprise that issues relating to the nature of the political status between puerto rico and the united states would be looked upon differently by the court, and that dissenting opinions like those espoused by pro-statehood judges torruella and rebollo lópez could become the law in puerto rico. luis m. sánchez valle’s attorneys were well aware of it.41 2016. maite oronoz rodríguez was confirmed as associate justice in 2014 and later nominated and summarily confirmed (without public hearings) as chief justice in 2016. ángel colón pérez succeeded her as associate justice in june 2016. associate justice anabelle rodríguez rodríguez is now the only justice on the court appointed prior to 2009. because both hernández denton and fiol matta were appointed by pdp administrations, and have been succeeded by pdp appointees, the “balance of power” has remained the same. 40 see, e.g., rivera schatz v. estado libre asociado de puerto rico, 2014 t.s.p.r. 122 (2014) (overruling col. de abogados de p.r. v. schneider, 112 p.r. dec. 540 (1982)); e.l.a. v. nw. selecta, 185 p.r. dec. 40 (2012) (overruling r.c.a. v. gobierno de la capital, 91 p.r. dec. 416 (1964)); roselló puig v. rodríguez cruz, 183 p.r. dec. 81 (2011) (partially overruling toppel v. toppel, 114 p.r. dec. 775 (1983)); e.l.a. v. crespo torres, 180 p.r. dec. 776 (2011) (overruling among others, sepúlveda v. depto. de salud, 145 p.r. dec. 560 (1998); aulet v. depto. servicios sociales, 129 p.r. dec. 1 (1991); a.c.a.a. v. bird piñero, 115 p.r. dec. 463 (1984); cartagena v. e.l.a., 116 p.r. dec. 254 (1985); american r.r. co. of p.r. v. wolkers, 22 p.r. dec. 283 (1915); arandes v. báez, 20 p.r. dec. 388 (1914)). 41 after the case ended in the united states supreme court, sánchez valle’s attorneys from the legal aid society (“sociedad para la asistencia legal”) stated publicly that they initially saw the case as one of civil rights only, and were “unaware” of its political ramifications until the puerto rico solicitor general office appeared before the court of appeals. that statement, however, should hardly be taken seriously. see josé a. delgado and cynthia lópez cabán, habita en suelo federal la soberanía de puerto rico, el nuevo día (june 10, 2016, 12:00 am), http://www.elnuevodia.com/noticias/politica/nota/habitaensuelofederallaso beraniadepuertorico-2208796/ [https://perma.cc/s4zr-zjap] (in spanish). 94 columbia journal of race and law [vol. 7:1 b. the case in puerto rico 1. the court of first instance in september 2008, several complaints were filed against sánchez valle in commonwealth courts for violations of the puerto rico weapons act, alleging that he illegally sold and transferred a weapon and ammunition.42 in june 2010, sánchez valle asked the court of first instance to dismiss the charges against him because he had already been sentenced to prison, house arrest, and supervised release in federal court for the same acts for which he was being prosecuted in puerto rico. like lópez andino and castro garcía before him, sánchez valle argued that his second prosecution constituted double jeopardy because the commonwealth and the federal government were the same sovereign for double jeopardy purposes.43 while acknowledging in a single paragraph that castro garcía held exactly the opposite,44 the court of first instance nonetheless held that: [d]ue to historical reasons and reasons of political, social, judicial and constitutional reality, the doctrine of ‘dual judicial sovereignty’ does not apply to the controversy at hand. we believe that sovereignty or the source of power of puerto rico to prosecute its 42 judicial proceedings in puerto rico are conducted in spanish. all quotations to judgments of the court of first instance and the court of appeals, as well as opinions of the supreme court, refer to the certified translations of such decisions included in the parties’ joint appendix to the united states supreme court in puerto rico v. sánchez valle. joint appendix, puerto rico v. sánchez valle, 136 s. ct. 1863 (no. 15-108) [hereinafter svja]. 43 id. at 308a–09a. 44 id. at 319a–20a. no. 2:80] puerto rico before the u.s. supreme court 95 citizens resides and emanates from the federal government through congress.45 in closing, the court added that: [i]t cannot be concluded in any way that with the mere approval of an insular constitution (at the mercy of legislative action by congress), puerto rico (which never had any degree of sovereignty throughout its historical trajectory), acquired a sovereignty similar to that of the states of the union, which is the basis of their judicial sovereignty vis-à-vis the judicial sovereignty of the central federal government. this is the current political, legal and constitutional reality between puerto rico and the united states of america. regardless of what legal fiction may be formulated to state otherwise, no matter how many times it is enunciated or how well it may be disguised in jurisprudence, it will never cease to exist in its chimerical setting and become a reality.46 these strong words came from a judge who was openly contradicting clear binding precedent from the highest court of his jurisdiction. the court felt no need to distinguish the case from castro garcía or explain why that case was no longer good law. instead, it mostly cited approvingly the understanding of sovereignty espoused in a law review article47 and misleadingly suggested that one of the leading criminal law and criminal procedure scholars in puerto rico, professor ernesto l. chiesa aponte, supported the court’s venture into a question settled long ago in puerto 45 id. at 321a. 46 id. at 324a–325a (emphasis added). 47 id. at 333a. see also fermín arraiza navas, soberanía v. soberanía dual, 25 rev. jur. u.i.p.r. 645 (1991). 96 columbia journal of race and law [vol. 7:1 rico.48 the reason why the court was not worried about stare decisis should be apparent by now: there was a new supreme 48 professor chiesa merely stated the following: [t]he particular status of the commonwealth raises passionate controversies regarding the applicability of the doctrine of dual sovereignty for purposes of the protection against double jeopardy, in the federal-insular context. of course, when faced with a prosecution by another state, followed or preceded by a federal prosecution, the doctrine of dual sovereignty is applied. but when faced with a criminal prosecution under the laws of the commonwealth, followed or preceded by a federal prosecution, the applicability of the doctrine of dual sovereignty will depend on the answer to the following question: [do] the criminal laws of the commonwealth emanate from an independent sovereignty or, ultimately, from the federal government? this question has not been addressed—and will probably not be addressed— by the [united states] supreme court. . . . . castro is not the last word regarding the applicability of the doctrine of dual judicial sovereignty to puerto rico; under the fifth amendment, the federal courts can rule otherwise, that is, as stated in the dissenting opinion. additionally, it is also not clear whether castro has the scope to interpret the commonwealth’s constitutional clause against double jeopardy and the barring of multiple prosecutions in article 63 of the penal code, to deny protection in cases involving interjurisdictional (federal-state) prosecutions. on one hand, it can be said that what the supreme court had before it was a constitutional matter involving double jeopardy, basis of the appealed decision, and not a statutory matter under article 63 of the penal code. on the other hand, it can be said that what is being appealed is the sentence and not its grounds, for which reason article 63 no. 2:80] puerto rico before the u.s. supreme court 97 court in san juan. before getting there, however, puerto rico’s intermediate appellate court would weigh in on the matter. 2. the court of appeals the court of appeals unanimously reversed, although every member of the three-judge panel seemed to rely on somewhat different grounds. through judge carlos cabrera, the court held that puerto rico was a sovereign for double jeopardy purposes.49 the appellate court extensively discussed lanza and its progeny, as well as lópez andino, but did not reopen the question or respond to any of the lower court’s assertions, instead reciting what the supreme court of puerto rico held in castro garcía, and applying it as binding precedent. unlike the lower court’s judgment, which referred to puerto rico as “the island” and consciously talked about the “local” and “insular” constitution, the appellate court referred to puerto rico as “[o]ur country.”50 judge teresa medina monteserín issued a short concurring opinion in which she acknowledged that castro garcía controlled, but expressly asked the puerto rico supreme court to overrule the opinion and adopt judge rebollo lópez’s dissenting position because, in her view, puerto rico remained “an unincorporated territory of the united states of america.”51 was implicitly rejected as basis to confirm the appealed decision. ernesto l. chiesa aponte, derecho procesal penal de puerto rico y estados unidos 429–30 (tercer mundo limitada ed. 1991). 49 svja, supra note 42, at 280a–81a (emphasis added) (internal citations omitted). 50 in explaining the defendants’ arguments, the court stated that they claimed that “[o]ur country continues to be an unincorporated territory of the united states of america.” id. at 279a. the practical political, and thus legal, relevance of referring to puerto rico as a nation or country will be addressed in part iv infra. 51 id. at 284a. 98 columbia journal of race and law [vol. 7:1 judge troadio gonzález vargas filed an important “particular vote” that sets forth the pro-commonwealth view. the judge humbly recognized at the outset that “the present legal controversy, though legitimate, is inevitably impacted or influenced by the omnipresent debate about the subject of the political status of puerto rico,”52 adding that “the legal analysis of this controversy is inevitably intertwined with, and influenced by, the ideological debate surrounding the subject of the status, for which reason we cannot realistically separate both matters.”53 after his disclaimer, the judge argued in detail that, through the enactment of the federal relations act in 1950 and the subsequent adoption of the constitution of the commonwealth in 1952, puerto rico ceased to be an unincorporated territory of the united states subject to congress’ plenary powers under the territorial clause, as previously decided by the united states supreme court; instead, with the consent of the people of puerto rico, puerto rico became a commonwealth, meaning a distinct political entity, “sovereign” over matters not delegated to the united states through “a compact” of association. in plain terms, the judge claimed that puerto ricans exercised their right to self-determination as a nation under international law, and thus the source of the commonwealth’s criminal laws emanates from the people of puerto rico. therefore, the judge concluded that: it is legally unacceptable and contrary to the dignity of every puerto rican to argue that even the adoption of their criminal laws and the indictment for the violation of same are merely the result of gifts or graces by the people of the united states, as if we found ourselves in the times of the crudest colonial regime. we find it to be equally offensive to the dignity of the people of the united states to be accused of 52 id. at 286a. 53 id. at 287a–88a. no. 2:80] puerto rico before the u.s. supreme court 99 such colonial brutality in the dawn of the [21st] century, and of being and acting as an international felon in front of the community of nations, in which they care to be regarded as a leader of international morality.54 the judge referred to puerto rico as “our country” and “a nation” on numerous occasions.55 3. the supreme court of puerto rico as expected, the supreme court of puerto rico expressly overruled garcía castro. through justice martínez torres, the pro-statehood majority concluded that “the commonwealth of puerto rico is not a sovereign entity inasmuch as, being a territory, its ultimate source of power to prosecute offenses is derived from the united states congress.”56 thus, the court held that “a person who was prosecuted in federal court cannot be prosecuted for the same offense in the puerto rico courts because that would constitute a violation of the constitutional protection against double jeopardy, as provided in the fifth amendment [of the united states constitution].”57 the court explained that under grafton v. united states,58 a case decided almost one hundred years earlier, a territory of the united states is not sovereign for double jeopardy purposes. instead, “a territory owes its existence wholly to the federal government, and its tribunals exert all their powers by authority of the united states.”59 54 svja, supra note 42, at 304a–05a. 55 id. at 286a–305a. 56 id. at 66a (emphasis omitted). 57 id. at 67a. 58 grafton v. united states, 206 u.s. 333 (1907). 59 svja, supra note 42, at 23a (quoting grafton, 206 u.s. at 354). 100 columbia journal of race and law [vol. 7:1 the majority also found support in wheeler, where the united states supreme court reiterated that “city and state, or territory and nation, are not two separate sovereigns.”60 unlike their predecessors in castro garcía, who believed that the statements contained in puerto rico v. shell co.61 were dicta “devoid of any legal basis and should be left to rest in peace,”62 the new majority found them “[o]f particular importance” to the case before them. although the new puerto rico supreme court did not refute the claim that this statement was dictum, the court nonetheless relied heavily on it, perhaps finding it too crucial to be ignored. the majority also pointed out that other federal courts of appeals had refused to apply the dual sovereignty doctrine to united states territories.63 in what it considered “an exercise of intellectual honesty,”64 the court explained that in united states v. sánchez65 the eleventh circuit correctly applied shell co. as binding precedent when it held that puerto rico remained a territory of the united states for double jeopardy purposes, and thus not a separate sovereign, notwithstanding the fact that it directly conflicted with the first circuit’s holding in lópez andino. the court then got to the crux of its argument: the insular cases66 declared puerto rico to be an unincorporated 60 id. at 24a (quoting wheeler, 435 u.s. at 321) (emphasis added). 61 puerto rico v. shell co., 302 u.s. 253 (1937). 62 castro garcía, 20 p.r. offic. trans. at 799. 63 gov’t of virgin islands v. dowling, 633 f.2d 660, 669 (3rd cir. 1980), cert. denied, 449 u.s. 960 (1980) (asserting that the territory of the united states virgin islands and the united states government constitute a single sovereignty for purposes of the clause against double jeopardy). 64 svja, supra note 42, at 30a. 65 united states v. sánchez, 992 f.2d 1143 (11th cir. 1993), cert. denied, 510 u.s. 1110 (1994). 66 for a comprehensive sociological and legal analysis of the insular cases and the history of the relationship between puerto rico and the u.s. by a pro-independence commentator, see efrén rivera ramos, american colonialism in puerto rico: the judicial and social legacy (markus wiener publishers ed., 2009). for further discussion of the insular cases no. 2:80] puerto rico before the u.s. supreme court 101 territory, and neither the enactment of the puerto rico federal relations act in 1950 nor the constitution adopted pursuant to it in 1952 altered that constitutional reality. 67 decided by the united states supreme court in the early part of the 20th century, the insular cases deal with the “acquisition” of new lands by the united states following the spanish-american war.68 although each case addressed a particular issue, commentators characterized the underlying question that needed to be settled by the court as “whether the constitution followed the flag.” the answer was an and puerto rican constitutional law, see generally josé j. álvarez gonzález, derecho constitucional de puerto rico y relaciones constitucionales con los estados unidos (2009). for pro-commonwealth commentators, see salvador e. casellas, commonwealth status and the federal courts, 80 rev. jur. u.p.r. 946, 954 (2011); josé trías monge, historia constitucional de puerto rico (1980); but see josé trías monge, puerto rico: the trials of the oldest colony in the world (1997). for pro-statehood commentators, see juan r. torruella, the supreme court and puerto rico: the doctrine of separate & unequal (1985); see also gustavo a. gelpí, los casos insulares: un studio histórico comparativo de puerto rico, hawái y las islas filipinas, 45 rev. jur. u.i.p.r. 215 (2011); carlos saavedra gutiérrez, incorporación de jure o incorporación de facto: dos propuestas para erradicar fantasmas constitucionales, 80 rev. jur. u.p.r. 967 (2011); christina duffy burnett & a.i. cepeda derieux, los casos insulares: doctrina desanexionista, 78 rev. jur. u.p.r. 661 (2009). for a collection of essays on the insular cases from commentators of different ideological persuasions, see gerald l. neuman & tomik brownnagin, reconsidering the insular cases: the past and future of the american empire (2015). 67 svja, supra note 42, at 33a–62a. 68 see the diamond rings, 183 u.s. 176 (1901); huus v. n.y. & porto rico s.s. co., 182 u.s. 392 (1901); downes v. bidwell, 182 u.s. 244 (1901); armstrong v. united states, 182 u.s. 243 (1901); dooley v. united states, 182 u.s. 221 (1901); goetze v. united states, 182 u.s. 221 (1901); de lima v. bidwell, 182 u.s. 1 (1901). see also ocampo v. united states, 234 u.s. 91 (1914); ochoa v. hernández, 230 u.s. 139 (1913); dowdell v. united states, 221 u.s. 325 (1911); kopel v. bingham, 211 u.s. 468 (1909); kent v. people of porto rico, 207 u.s. 113 (1907); trono v. united states, 199 u.s. 521 (1905); rasmussen v. united states, 197 u.s. 516 (1905); dorr v. united states, 195 u.s. 158 (1904); kepner v. united states, 195 u.s. 100 (1904); gonzález v. williams, 192 u.s. 1 (1904); hawaii v. mankichi, 190 u.s. 197 (1903). 102 columbia journal of race and law [vol. 7:1 unequivocal “not necessarily.” in downes v. bidwell,69 the united states supreme court held that puerto rico had become a “territory” of the united states after the signing of the treaty of paris between the united states and spain in 1898, coining a phrase forever ingrained in puerto rican legal culture: puerto rico belonged to, but was not a part of, the united states.70 as such, congress had “plenary power” over puerto rico, subject only to some basic principles “which are the basis of all free government.”71 justice white’s concurring opinion in downes established what would later become the basic holding of the insular cases.72 under his view, there were two types of territories: those that congress intended to “incorporate” as part of the union, in which the constitution applied ex proprio vigore, and those that remained “unincorporated,” in which the constitution did not apply except for those provisions deemed basic or fundamental. puerto rico fell into the latter group. this situation did not change after congress enacted a new organic charter known as the jones act in 1917,73 by virtue of which puerto ricans became united states citizens.74 69 downes v. bidwell, 182 u.s. 244 (1901). 70 id. at 287 (“we are therefore of opinion that the island of porto rico [sic] is a territory appurtenant and belonging to the united states, but not a part of the united states. . .”) (emphasis added). 71 id. at 290–91. 72 id. (white, j., concurring). see also balzac v. porto rico, 258 u.s. 298 (1922). 73 jones act, ch. 190, 39 stat. 951 (1917) (codified at 48 u.s.c. § 731 (1987). for more on the effects of american citizenship in puerto rico, see efrén rivera ramos, american colonialism in puerto rico, supra note 66, at 145–89. see also josé cabranes, citizenship and the american empire, 127 u. pa. l. rev. 391 (1978); josé trías monge, 1 historia constitucional de puerto rico 70–110 (1981) (in spanish); raúl serrano geyls, derecho constitucional de estados unidos y puerto ricodocumentos-jurisprudencia-anotaciones-preguntas 467–70 (1986) (in spanish). 74 balzac, 258 u.s. at 306 (“had congress intended to take the important step of changing the treaty status of porto rico by incorporating it into the union, it is reasonable to suppose that it would have done so by the plain declaration, and would not have left it to mere inference.”). no. 2:80] puerto rico before the u.s. supreme court 103 after relying on boumediene v. bush75 for the proposition that “[d]espite the criticism of its disdainful and contemptuous tone towards the inhabitants of the territories, and of the obsolescence of much of the holdings of the insular cases, the core part of the doctrine has continued to be used,”76 the puerto rico supreme court in sánchez valle turned to congressional history to show why the adoption of the commonwealth constitution did not change the territorial status of puerto rico.77 the court extensively quoted then-governor luis muñoz marín’s statements that congress could unilaterally amend the puerto rican federal relations act “if the people of puerto rico should go crazy,”78 as well as then-resident commissioner antonio fernós isern’s assertions that the act “would not alter the powers of sovereignty acquired by the united states over puerto rico under the terms of the treaty of paris.”79 the majority also pointed out that the united states supreme court has continued to treat puerto rico as a territory after the creation of the commonwealth,80 in addition to the executive branch of the united states government.81 thus, the court concluded that there was unanimity among the three federal branches regarding this matter. at no point in its sixty-nine page opinion did the majority refer to puerto rico as a nation or a country. 75 boumediene v. bush, 553 u.s. 723, 759 (2008) (“[t]he court devised in the insular cases a doctrine that allowed it to use its power sparingly and where it would be most needed. this century-old doctrine informs our analysis in the present matter”). 76 svja, supra note 42, at 40a. 77 id. at 41a–46a. 78 id. at 41a. 79 id. at 42a. 80 id. at 46a–59a. 81 id. at 59a–62a (citing the presidential task force on the status of puerto rico, http://www.whitehouse.gov/sites/default/files/uploads/puerto_rico_report_ espanol.pdf [https://perma.cc/lq2j-7cze] (in spanish). 104 columbia journal of race and law [vol. 7:1 then-chief justice fiol matta issued a lengthy concurring opinion,82 which was joined by then-associate justice oronoz rodríguez. perhaps the most consistentlyliberal justice to ever sit on the supreme court of puerto rico, fiol matta83 concluded that double jeopardy applied “not because puerto rico lacks sovereignty to prosecute the petitioners,84 but because under the circumstances of this case, doing so would violate the protection against double jeopardy that our [puerto rican] constitution85 guarantees them.”86 the chief justice adopted a view that no party or prior judge had advanced—and that the majority consciously avoided—by interpreting the commonwealth’s double jeopardy clause more broadly than its federal counterpart in order to reject the application of the dual sovereignty doctrine.87 this was a position that, if accepted by the majority, would have made the court’s ruling unreviewable by the united states supreme court.88 according to then-chief 82 the certified translation of chief justice fiol matta’s concurring opinion contains one hundred and twenty pages. see svja, supra note 42, at 71a–190a. although fiol matta was well-known for issuing long opinions, her concurrence in sánchez valle was the longest one in her twelve years on the court. 83 for an analysis on justice fiol matta’s judicial philosophy, see ricardo ortiz morales & michelle r. robles torres, figuras jurídicas en contexto: añálisis del discurso de la jueza fiol matta en la adjudicaciòn de controversias ante el tribunal supremo de puerto rico, 80 rev. jur. u.p.r. 11 (2011) (in spanish). 84 in parts iv & iv of the opinion, the chief justice discusses in detail why she believes that it is well settled in both federal and commonwealth courts that in 1952 puerto rico ceased to be a territory of the united states subject to the plenary powers of congress. id. at 116a– 164a. because her position regarding this matter does not relevantly differ from that espoused by justice rodríguez rodríguez in her dissenting opinion, i will focus on the latter. 85 p.r. const. art. ii, § 11. 86 svja, supra note 42, at 73a. 87 the chief justice clarified that her view was not based only on the “so-called ‘broader scope’ of the commonwealth constitution,” but on “an imperative resulting from the inviolability of the dignity of the human being” consecrated in the puerto rican bill of rights. id. at 186a–87a. 88 as stated in the opinion, several states have enacted statutes similar to rule 1.10 of the model penal code, which limits the authority of no. 2:80] puerto rico before the u.s. supreme court 105 justice fiol matta, “[i]n its haste to undermine the spirit of our [puerto rican] constitution and our efforts to affirm ourselves as a nation, the majority has ignored the actual controversy involved in this case: the fundamental inconsistency between the possibility of prosecuting an individual twice for the same criminal acts and the crucial guiding principle of puerto rico’s constitution, the inviolability of human dignity.”89 the lone dissenter this time was justice anabelle rodríguez rodríguez.90 like she has done repeatedly since 2008, justice rodríguez rodríguez issued a scathing dissent, stating at the outset that “[o]nce again, a majority of this [c]ourt hastens to overrule, on questionable grounds, firmlyestablished precedents of our legal system.”91 also, just like the majority relied mostly on pro-statehood legal scholars, justice rodríguez rodríguez relied heavily on procommonwealth ones.92 she claimed that the court’s decision a jurisdiction to prosecute a person for conduct for which he or she has already been prosecuted in another jurisdiction. see comm. v. mills, 286 a.2d 638, 643–644 (1971). other states afford the same protection expressly in their constitution, see mont. const. art. ii, § 25, or their highest court has recognized it as a state constitutional mandate. see state v. hogg, 118 n.h. 262, 267 (1978). 89 svja, supra note 42, at 73a (emphasis added). 90 the author clerked for justice rodríguez rodríguez during the october 2011 term. 91 svja, supra note 42, at 192a. 92 in footnote 3, justice rodríguez rodríguez states that “[t]here is no doubt that mr. josé trías monge, who presided this court from april 19, 1974, to september 30, 1985, has been our most distinguished jurist.” svja, supra note 42, at 193a. in footnote 24, the justice refers to him as “the most eminent puerto rican jurist.” id. at 217a. trías monge’s contributions as a judge and as a scholar are widely recognized and appreciated by the puerto rican legal community, and deservedly so. his contributions, like those of other commentators mentioned here, should not be diminished because of his known position on the status question; however, they should be contextualized. though the conclusion that trías monge is “our most distinguished” or “most eminent jurist” is more-easily drawn by pro-commonwealth scholars, it is fair to say that many other legal minds would also consider him the puerto rican john marshall. and even trías monge himself referred to the commonwealth as “the oldest colony in 106 columbia journal of race and law [vol. 7:1 was based “more on ideology than on law”93 and expressly asked the united states supreme court to reverse it.94 the dissent accused the majority of engaging in “disconcerting historical revisionism,”95stating as follows: [t]here can be no doubt that the court majority’s objective is to advance its ideology on the status of puerto rico and has used, and will continue to use, legal opinions to do so. this, despite the fact that ideological campaigns are incumbent on the political process, not court decisions. with such an objective, the majority disregards the provisions of our constitution, our laws, what the social wellbeing of our country demands and even the provisions of the u.s. constitution and the precedents of the u.s. supreme court. in short, nothing persuades, nothing matters to this majority, when arguments are inconvenient to certain ideological posture. it appears that the only thing that matters to them is achieving through [c]ourts what has not been achieved and should be done through the political process. that is, they are using the court’s function as another mechanism to exercise political pressure to pursue their political ideologies, which conveniently translates into simplistic and outof-context legal interpretations. in the process, all of our prior opinions regarding puerto rico constitutional framework are dismantled. to use this higher court for such purposes is profoundly anti-democratic and, therefore, the world” after leaving the court. see trías monge, puerto rico: the trials of the oldest colony in the world, supra, note 66. 93 svja, supra note 42, at 194a. 94 id. at 196a. 95 id. at 241a. no. 2:80] puerto rico before the u.s. supreme court 107 notably and ironically anti-american. it contravenes fundamental notions of how politics should be done and, in the process, tarnishes the legitimacy of this court. as i have stated before: what a shame!96 justice rodríguez rodríguez followed the traditional procommonwealth vision relied upon by the supreme court of puerto rico in castro garcía and the first circuit in lópez andino. in essence, she rejected that shell co. controlled, claiming that the statements contained therein were dicta97 that could not apply to puerto rico after 1952 because it had ceased to be a territory belonging to the united states and instead had become a sui generis, “atypical” “sovereign entity,”98 “at least, with regard to its internal affairs.”99 the dissent criticized the majority for adopting an “anachronistic” view of sovereignty100 and questioned the validity of the “socalled insular cases,”101 arguing that, with the consent of the puerto rican people, congress “relinquished its plenary powers regarding puerto rico in what pertains to its internal affairs.”102 in what constitutes classic pro-commonwealth legal parlance, justice rodríguez rodríguez concluded that “the constitution of the commonwealth is not just another organic act of the congress. we find no reason to impute to the congress the perpetration of such a monumental hoax. public law 600 offered to the people of puerto rico a ‘compact’ under which, if the people accepted it, as they did, they were authorized to ‘organize a government pursuant to a constitution of their own adoption.’”103 96 id. at 241a–42a (emphasis added). 97 id. at 209a. 98 on “atypicality,” see id. at 215a, n.23. 99 svja, supra note 42, at 239a. 100 on “sovereignty”, see infra part iv; svja, supra note 42, at 219a–225a. 101 id. at 208a, n.16. 102 id. at 230a. 103 id. at 226a–27a, n.33 (quoting figueroa v. people of puerto rico, 232 f.2d 615, 620 (1st cir. 1956). 108 columbia journal of race and law [vol. 7:1 unlike the majority, justice rodríguez rodríguez referred to puerto rico as “our country” on several occasions throughout her opinion; unlike fiol matta, she did not use the term “nation.”104 c. the case before the united states supreme court the commonwealth filed its petition for writ of certiorari in the united states supreme court on july 15, 2015, which the court granted on october 1, 2015. at that point, it was unclear what position the obama administration would assume in the case, if any. though the federal government had occasionally stated in different contexts throughout the years that puerto rico remained a territory, as explained in the lower courts’ decisions, not once since the creation of the commonwealth had the department of justice unambiguously assumed that position before the supreme court, much less validated the insular cases. in fact, in lópez andino the federal government took the opposite view when it asked the first circuit to hold that puerto rico was a separate sovereign for double jeopardy purposes.105 that being the case, the people who believed that the federal government would adopt a similar position in sánchez valle should hardly be faulted for their view. on december 23, 2015, the united states filed an amicus brief in support of respondents. acknowledging that it was changing its prior position, the united states asserted that “[t]hose briefs do not 104 in part ii, the dissent briefly dismissed chief justice fiol matta’s argument that, although the puerto rico possessed sovereignty for double jeopardy purposes, the commonwealth constitution’s double jeopardy clause nonetheless barred the second prosecutions in the case. justice rodríguez rodríguez concluded that “‘[t]here is no basis to hold that the clause was given or should be given greater content’ in the puerto rican constitutional order.’” id. at 202a (quoting ernesto l. chiesa aponte, doble exposición, 59 rev. jur. u. p.r. 479, 480 (1990)). 105 see united states v. lópez andino, 831 f.2d at 1167–68 (1st cir. 1987). no. 2:80] puerto rico before the u.s. supreme court 109 reflect the considered view of the executive branch.”106 instead, the united states now argued that “[a]lthough puerto rico exercises significant local authority, with great benefit to its people and to the united states, puerto rico remains a territory under our constitutional system. puerto rico does not possess sovereignty independent of the united states, and its prosecutions cannot invoke the dual sovereignty doctrine under the double jeopardy clause.”107 by a six to two vote, the court agreed.108 in an opinion by justice kagan, the court held that puerto rico and the federal government are the same sovereign for double jeopardy purposes “because the oldest roots of puerto rico’s power to prosecute lie in federal soil.”109 the majority began by analyzing congress’s historical treatment of puerto rico. as most courts usually do, the court focused on the various “organic acts” that congress has enacted to rule over the island.110 the story goes as follows: puerto rico became a united states territory following the spanish-american war through the treaty of paris of 1898, when spain “ceded” the island to the united states, “and tasked congress with determining ‘[t]he civil rights and political status’ of its inhabitants.’”111 congress then “established” a “civil government” in 1900 through what is commonly referred to as the foraker act.112 puerto ricans became united states citizens in 1917 when congress passed the jones act, which also “granted” additional autonomy.113 106 brief for the united states as amicus curiae supporting respondents at 32, n.6, puerto rico v. sánchez valle, 136 s. ct. 1863 (2016) (no. 15-108) [hereinafter usab]. 107 id. at 34. 108 puerto rico v. sánchez valle, 136 s. ct. 1863 (2016). 109 id. at 1868. 110 id. at 1884. 111 id. at 1868. 112 id. 113 id. 110 columbia journal of race and law [vol. 7:1 in 1947, congress “empowered the puerto rican people to elect their own governor, a right never before accorded in a [united states] territory.”114 then, through public law 600, in 1950 congress “enabled puerto rico to embark on the project of constitutional self-governance,” which ultimately led to the adoption of a constitution drafted by the puerto rican people, and was later approved by both congress and puerto rico.115 that constitution “created a new political entity, the commonwealth of puerto rico—or, in spanish, estado libre asociado de puerto rico,” which proclaims that the commonwealth’s power “emanates from the people and shall be exercised in accordance with their will, within the terms of the compact agreed upon between the people of puerto rico and the united states.”116 it took the court three pages to explain more than 115 years of puerto rico-united states relations, after which it claimed to “leave the lofty sphere of constitutionalism for the grittier precincts of criminal law.”117 the majority explained that “[t]o determine whether two prosecuting authorities are different sovereigns for double jeopardy purposes,”118 the court asks a “narrow, historically focused question”: “whether the prosecutorial powers of the two jurisdictions have independent origins—or, said conversely, whether those powers derive from the same 114 sánchez valle, 136 s. ct. at 1868. 115 id. 116 id. at 1868–69 (emphasis added). 117 id. at 1869. 118 in the first footnote of the opinion, the court stated that it had “no occasion to consider” whether the double jeopardy clause “applies to puerto rico” “[b]ecause the parties in this case agree” that it does. id. at 1885, n.1. as fascinating as that may sound, the court seemed to forget that in 1976 it ruled that “that the protections accorded by either the due process clause of the fifth amendment or the due process and equal protection clauses of the fourteenth amendment apply to residents of puerto rico,” hence inventing yet another “peculiar” doctrine applied to puerto rico, the “either-or doctrine.” examining bd. of eng’rs v. flores de otero, 426 u.s. 572, 600 (1976). no. 2:80] puerto rico before the u.s. supreme court 111 ‘ultimate source.’”119 the court then held that while both states and indian tribes possess an independent source of sovereignty from the united states, the commonwealth does not. in a sentence that will probably be added to the those insular cases phrases forever ingrained in puerto rican legal culture, the court bluntly enunciated that “[t]he island’s constitution, significant though it is, does not break the chain,”120 thus finally officially debunking one of the most commonly-held myths in puerto rico. justice kagan then concluded her opinion as follows: puerto rico boasts ‘a relationship to the united states that has no parallel in our history.’ and since the events of the early 1950’s, an integral aspect of that association has been the commonwealth’s wide-ranging self-rule, exercised under its own constitution. as a result of that charter, puerto rico today can avail itself of a wide variety of futures. but for purposes of the double jeopardy clause, the future is not what matters—and there is no getting away from the past. because the ultimate source of puerto rico’s prosecutorial power is the federal government—because when we trace that authority all the way back, we arrive at the doorstep of the u. s. capitol— the commonwealth and the united states are not separate sovereigns. that means the two governments cannot ‘twice put’ respondents sánchez valle and gómez vázquez ‘in jeopardy’ for the ‘same offence.’ we accordingly affirm the judgment of the supreme court of puerto rico.121 119 sánchez valle, 136 s. ct. at 1867. 120 id. at 1876 (emphasis added). 121 id. 1876–77 (internal citations omitted). 112 columbia journal of race and law [vol. 7:1 the majority went as far as to call “deeply disturbing” the dissent’s argument that “it is difficult to . . . conclude that the tribes do possess this authority but puerto rico does not,” rebutting that it has been settled for nearly two centuries that the tribes have “inherent authority.”122 yet denying the same treatment to puerto rico, a community constituted politically decades before any of the original states had even been founded, did not disturb the court.123 the court never referred to puerto rico as a nation. the word colony was nowhere to be found in the opinion, except when the court once referred to puerto rico as a spanish colony that was “ceded” by spain to the united states in 1898, fifty-four years before it supposedly evolved “into a constitutional democracy exercising local self-rule.”124 conspicuously omitted, too, was the term “unincorporated territory” or any mention whatsoever of the insular cases, the very doctrine which the court necessarily relied upon in order to so easily validate congress’s constitutional authority over puerto rico. justice ruth bader ginsburg issued a concurring opinion, joined by justice clarence thomas. though she agreed with the majority in full, it appears that she would overrule the dual sovereignty doctrine recognized in lanza “in a future case in which a defendant faces successive prosecutions by parts of the whole usa.”125 justice thomas filed a separate opinion concurring in part and concurring in judgment. he disagreed with the court’s “portions of the opinion concerning the application of the double jeopardy 122 id. at 1873, n.5. 123 perhaps taíno descendants in puerto rico now have a better shot at sovereignty under american constitutional law than do puerto ricans themselves. according to traditional historical accounts, the taínos were the native group that predominated in puerto rico (borikén, as they called it) before and during the first centuries of spanish conquest over the island. 124 sánchez valle, 136 st. ct. at 1868. 125 id. at 1877 (ginsburg, j., concurring) (emphasis added). no. 2:80] puerto rico before the u.s. supreme court 113 clause to successive prosecutions involving indian tribes.”126 thus, it appears that he would at least overrule wheeler and its recognition of indian tribe sovereignty for double jeopardy purposes. justice stephen breyer sided with the commonwealth in a dissenting opinion, which was joined by justice sotomayor. he disagreed with the majority’s conclusion that a historical inquiry would “reveal” congress as the ultimate source of power in puerto rico, responding that the court does not mean literally what it says because it does not trace the island’s “source of power back to spain or rome or justinian,” just like it does not trace “the federal government’s source of power back to the english parliament or to william the conqueror or to king arthur.”127 instead, justice breyer posits, several “historical considerations” suggest that, by virtue of public law 600 and the creation of the commonwealth constitution in 1952, congress “determined that the ‘political status’ of puerto rico would for double jeopardy purposes subsequently encompass the sovereign authority to enact and enforce—pursuant to its own powers— its own criminal laws.”128 iii. puerto rico v. franklin california tax-free trust: the commonwealth’s plea to go bankrupt a. the commonwealth’s economic struggle for many decades, the commonwealth was sold by its supporters as “the best of both worlds,” a sort of caribbean paradise with a healthy united states economy. usually characterized as the “vitrina del caribe” (loosely translated as “the caribbean’s window [to latin america]”), the island served as a laboratory for american economic policies in the 126 id. (thomas, j., concurring). 127 id. at 1878 (breyer, j., dissenting). 128 id. 114 columbia journal of race and law [vol. 7:1 region decades before the chicago boys attempted the “chilean miracle” in the seventies.129 by the early 1940s, the combination of the last presidentially-imposed american governor in puerto rico, liberal rexford tugwell, and the rise of the washington-friendly luis muñoz marín as leader of the newly-created pdp led to a series of new deal policies in puerto rico known as the chardón plan.130 through the creation of many of the public corporations that remain in place today, the puerto rican government became the driving force behind the island’s economy by providing both the necessary infrastructure and the actual jobs for a big part of the population. although the chardón plan succeeded in providing better conditions for the puerto rican people, it was superseded in the 1950s by a different economic plan known as “operación manos a la obra” (operation bootstrap).131 this new strategy focused on incentivizing american private investment in puerto rico by providing tax exemptions like never before, so that companies would relocate to the island and create jobs. combined with the creation of the commonwealth and the massive wave of governmentpromoted emigration to the united states, mostly to new 129 the chilean miracle refers primarily to the reorientation of the chilean economy during dictator augusto pinochet’s military regime based on economic liberalization and privatization of state-owned corporations, designed by a group of chilean economists trained by milton friedman at the university of chicago known as “the chicago boys.” since then, many economists continually describe it as the model to follow for economic growth in latin america and elsewhere. see bryce breslin, chile: democracy and the chilean miracle, berkeley rev. of latin am. stud., fall 2007, http://clas.berkeley.edu/research/chile-democracy-and-chileanmiracle [https://perma.cc/ck9h-v8tv]. 130 carlos e. chardón palacios was an influential puerto rican politician that held several important public positions during the period. he served as administrator of puerto rico reconstruction administration, chancellor of the university of puerto rico, and executive director of the lands authority, among others. 131 the english name is said to have arisen from luis muñoz marín’s statements to congress in 1949 that “[we] are trying to lift ourselves by our own bootstraps.” see puerto rico constitution: hearings h.r. 7674 and s. 3336 before the h. comm. on public lands, 81st cong. 1–32 (1950) (statement of luis muñoz-marín, governor of puerto rico). no. 2:80] puerto rico before the u.s. supreme court 115 york,132 the economy and the atmosphere of prosperity certainly grew during the fifties, and did so quickly.133 nothing exemplified the new economic mindset better than § 936 of the internal revenue code.134 congress enacted § 936 in 1976 to give american companies an exemption from federal taxes on income, whether from operations or interests on local bank deposits, earned in puerto rico. section 936’s effects were felt immediately. many important american chemical, electrical, and pharmaceutical companies moved to puerto rico to take advantage of the tax incentives and the low wages that they could pay to a skilled, college-educated workforce. the commonwealth government could then use a local “tollgate tax” on the profits that these companies repatriated to the united states, thus strengthening its fisc. indeed, for most of the second half of the 20th century, puerto rico enjoyed a standard of living relatively higher than many, if not most, caribbean and south american countries. by the 1990s, § 936 had become increasingly unpopular in washington, with many suggesting that it was simply a way for big corporations to avoid paying taxes.135 almost all sectors in puerto rico recognized that § 936’s repeal would have deleterious consequences on the island’s economy and hence strongly opposed its elimination; but some favored 132 hence the term “nuyorican” to refer to those puerto ricans born and raised in new york since then. though the term may have been used pejoratively at some point, i do not believe that to be the case today, if ever. 133 scott greenberg & gavin ekins, tax policy helped create puerto rico’s fiscal crisis (june 30, 2015), http://taxfoundation.org/blog/tax-policy-helped-create-puerto-rico-s-fiscalcrisis [https://perma.cc/a5vd-ruhf]. 134 puerto rico and possession tax credit, pub. l. no. 94-455, title x, § 1051(b), 90 stat. 1643 (codified as amended at 26 u.s.c. § 936 (2014)). 135 see larry rohter, puerto rico fighting to keep its tax breaks for businesses, n.y. times (may 10, 1993), http://www.nytimes.com/1993/05/10/business/puerto-rico-fighting-to-keepits-tax-breaks-for-businesses.html?pagewanted=all [https://perma.cc/bn7k-samy]. 116 columbia journal of race and law [vol. 7:1 it anyway.136 even more prevalant than the criticism of § 936 as corporate welfare, was the call from pro-statehood puerto ricans to eliminate § 936 simply because it treated puerto rico differently than states. in 1996, president clinton signed the small business job creation act, which phased out § 936 over a period of ten years.137 puerto rican subsidiaries of united states businesses became subject to the same federal corporate income tax as any other subsidiary in 2006.138 since the phase out of § 936 and the signing of several important free-trade agreements between the united states and other nations, puerto rico’s economy has fallen into a deep recession. the dominance of big american corporations in most industries suppressed any possibility of an autochthonous economy to fill the void after § 936’s repeal. while the tax base became smaller, the commonwealth government continued to issue debt in order to function. in 1917, congress determined that commonwealth municipal bonds could not be taxed by either federal, state, or territorial governments,139 and investors kept buying them regardless of the island’s financial downturn. according to official numbers, the commonwealth’s deficit for the 2013–14 fiscal year reached $650 million.140 the combined deficit of the three main public utilities in fiscal year 2012–13 was approximately $800 million, and their overall combined debt reached $20 billion.141 in order to address this reality, in june 2014, the puerto rican legislature enacted the puerto rico public 136 id. 137 small business job creation act of 1996, pub. l. no. 104-188, 110 stat. 1755. 138 id. 139 act of mar. 2, 1917, ch. 145, § 3, 39 stat. 953 (codified as amended at 48 u.s.c. § 745 (1917)). 140 brief for the commonwealth at 5–6, franklin cal. tax-free trust v. puerto rico, 805 f.3d 322 (2015) (no. 15-233). 141 id. no. 2:80] puerto rico before the u.s. supreme court 117 corporations debt enforcement and recovery act,142 which established a mechanism that would allow its public utilities to restructure their debt.143 creditors were not happy, and they challenged the statute in federal court the very day it was signed into law.144 b. the case in federal court 1. the district court two groups of investors holding nearly two billion dollars in bonds issued by the puerto rico electrical power authority (“prepa”) filed separate suits against the commonwealth, the puerto rico government development bank (“gdb”), and several commonwealth officials, seeking declaratory judgment that the recovery act was unconstitutional.145 they argued, primarily, that § 903(1) of chapter 9 of the bankruptcy code preempted the recovery act.146 the main issue can be simplified as follows: congress enacted the bankruptcy code,147 pursuant to its bankruptcy 142 2014 p.r. laws act no. 71 [hereinafter “recovery act”]. 143 harvard law review, puerto rico public corporation debt enforcement and recovery act, 2014 p.r. laws act no. 71, 128 harv. l. rev. 1320, 1320 (2015). 144 franklin cal. tax-free trust v. puerto rico, 805 f.3d 322 (2015). 145 id. 146 id. at 324–25. collectively, they also brought contract clause and takings clause claims, as well as challenges to the recovery act’s provisions that allow stays of federal court proceedings when a public corporation files for debt relief under the act. although the district court reached the merits of these other claims, ruling mostly against the commonwealth, the first circuit did not address them in view of its holding on the preemption question. because they were not part of the case before the united states supreme court, they are irrelevant for purposes of this article. id. 147 bankruptcy reform act of 1978, pub. l. no. 95-598, 92 stat. 2549 (codified as amended at 11 u.s.c. (2010)). 118 columbia journal of race and law [vol. 7:1 power under the constitution.148 the code prohibits states from filing for bankruptcy.149 chapter 9 of the code, however, allows states to authorize their “municipalities,” i.e., political subdivisions, public agencies, or instrumentalities of a state, to restructure their debt under that chapter. since the bankruptcy code was amended in 1984, the code’s general definition of ‘‘state’’ expressly includes puerto rico, “except for the purpose of defining who may be a debtor under chapter 9.”150 thus, it is undisputed that puerto rico’s municipalities, including prepa, are excluded from filing for bankruptcy under chapter 9. the question is whether puerto rico’s exclusion from chapter 9 in 1984 means that congress intended the commonwealth to be able to “fill the gap” by creating its own debt-restructuring mechanism for its municipalities—as the commonwealth argued—or whether congress intended to prohibit puerto rico from authorizing chapter 9 relief or any other debt-restructuring mechanism— as the plaintiffs argued. the district court held that the recovery act in its entirety was void pursuant to the supremacy clause of the united states constitution.151 judge francisco a. besosa concluded that, by enacting § 903(1), congress expressly preempted state laws that prescribe a method of composition of municipal indebtedness that binds nonconsenting creditors.152 because § 101(52) of the code provides that the term “state” includes puerto rico, and the recovery act would prescribe a method of composition of commonwealth municipal indebtedness that would bind nonconsenting 148 “the congress shall have power . . . [t]o establish . . . uniform laws on the subject of bankruptcies throughout the united states.” u.s. const. art. i, § 8, cl. 4. 149 11 u.s.c. § 903(1) (2010). 150 bankruptcy amendments and federal judgeship act of 1984, pub. l. no. 98-353, § 421(j)(6) (codified as amended at 11 u.s.c. § 101(52) (2016). 151 franklin cal. tax-free trust v. puerto rico, 85 f. supp. 3d 577, 583 (d.p.r. 2015). 152 id. at 596. no. 2:80] puerto rico before the u.s. supreme court 119 creditors, the court mechanically concluded that the statute could not survive.153 according to the court, the case was not a close one.154 2. the first circuit the first circuit unanimously affirmed the lower court’s conclusion that § 903(1) of the bankruptcy code preempted the recovery act.155 through judge sandra l. lynch, the majority explained that whether § 903(1) preempts the recovery act turns on whether the definition of “state” in the federal bankruptcy code—as amended in 1984—renders § 903(1)’s preemptive effect inapplicable to puerto rico.156 the court held that it did not.157 the court rejected what it deemed the commonwealth’s “structural argument” that § 903(1) could not itself preempt puerto rico laws because it is a proviso to a provision within a chapter that does not apply to puerto rico.158 in the court’s view, however, “[t]he terms of § 101(52) do not exclude puerto rico municipalities from federal relief; rather, they deny to puerto rico the authority to decide when they might access it.”159 but the appellate court did not stop there, also holding that conflict preemption principles would invalidate the recovery act regardless of whether § 903(1) expressly did so.160 the court continually emphasized puerto rico’s constitutional status as a territory of the united states subject to congress’s plenary powers, something that it had 153 id. at 601. 154 id. 155 franklin cal. tax-free trust v. puerto rico, 805 f.3d 322 (1st cir. 2015). 156 id. at 325. 157 id. at 337. 158 id. at 338. 159 id. at 343. 160 id. at 343–34. 120 columbia journal of race and law [vol. 7:1 been extremely reluctant to do since the creation of the commonwealth. for example, it rejected the commonwealth’s claim that the canon of constitutional avoidance weighed against preemption in this case because that interpretation would raise a constitutional question under the tenth amendment, easily concluding that “the limits of the tenth amendment do not apply to puerto rico, which is ‘constitutionally a territory,’ because puerto rico’s powers are not ‘[those] reserved to the states’ but those specifically granted to it by congress under its constitution.”161 thus, with unambiguous language supported by a subtle citation to torruella’s concurrence, the first circuit seemed to signal that it, too, would have disregarded its holding in lópez andino and held that the commonwealth lacked sovereignty for double jeopardy purposes if the issue had reached the court again. the court admitted that the legislative history was “silent as to the reason for the exception set forth in the 1984 amendment,”162 yet had no trouble suggesting that the silence cut against the commonwealth, speculating that: one apparent possibility concerns the different constitutional status of puerto rico. because of this different status, the limitations on congress’s ability to address municipal insolvency in the states discussed above are not directly applicable to puerto rico. accordingly, congress may wish to adopt other—and possibly better—options to address the insolvency of puerto rico municipalities that are not available to it when addressing similar problems in the states.163 161 franklin cal. tax-free trust, 805 f.3d at 344–45 (citing united states v. lópez andino, 831 f.2d at 1172 (1st cir. 1987) (torruella, j., concurring)). 162 id. at 337. 163 id. (internal citations omitted). no. 2:80] puerto rico before the u.s. supreme court 121 and to make matters clearer, the court added that their statutory construction: is consistent with a congressional choice to exercise such other options ‘pursuant to the plenary powers conferred by the territorial clause.’ if puerto rico could determine the availability of chapter 9 for puerto rico municipalities, that might undermine congress’s ability to do so. similarly, congress’s ability to exercise such other options would also be undermined if puerto rico could fashion its own municipal bankruptcy relief. the 1984 amendment ensures that these options remain open to congress by denying puerto rico the power to do either.164 judge torruella again issued an important concurring opinion for purposes of this article. he agreed that the recovery act contravened § 903(1) of the bankruptcy code and thus could not survive.165 however, the concurring judge went much further, holding that the 1984 amendment, by which puerto rico was included as a “state” but excluded from chapter 9 relief, was also unconstitutional—an argument that the commonwealth did not have reason to advance because it was seeking to uphold the validity of its own statute and its municipalities never filed for chapter 9 relief.166 thus, the pro-statehood judge would have applied federal law as it existed prior to the 1984 amendments to grant puerto rico the opportunity to allow its municipalities to participate in chapter 9 proceedings. like chief justice fiol matta in sánchez valle, the case was too significant for torruella to simply agree with one side while leaving other important questions unanswered, even if it meant invalidating a federal 164 id. (internal citations omitted). 165 id. (torruella, j., concurring). 166 id. 122 columbia journal of race and law [vol. 7:1 provision whose constitutionality no party directly challenged. in the last part of his opinion, entitled “the ‘businessas-usual’ colonial treatment continues,” judge torruella accused the united states of engaging in blatant colonialism: the majority’s disregard for the arbitrary and unreasonable nature of the legislation enacted in the 1984 amendments showcases again this court’s approval of a relationship under which puerto rico lacks any national political representation in both houses of congress and is wanting of electoral rights for the offices of president and vice-president. that discriminatory relationship allows legislation—such as the 1984 amendments—to be enacted and applied to the millions of [united states] citizens residing in puerto rico without their participation in the democratic process. this is clearly a colonial relationship, one which violates our constitution and the law of the land as established in ratified treaties. given the vulnerability of these citizens before the political branches of government, it is a special duty of the courts of the united states to be watchful in their defense. as the supreme court pronounced in united states v. carolene products co., “prejudice against . . . insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”167 i am sorry to say this special duty to perform a ‘more searching inquiry’ has been 167 304 u.s. 144, 152 n.4 (1938). no. 2:80] puerto rico before the u.s. supreme court 123 woefully and consistently shirked by this court when it comes to puerto rico, with the majority opinion just being the latest in a series of such examples. when the economic crisis arose, after considering congress’s cryptic revocation of puerto rico’s powers to manage its own internal affairs through the 1984 amendments, puerto rico looked elsewhere for a solution. it developed the recovery act enacted pursuant to the police powers this very court had sustained, to fill the black hole left by the 1984 amendments introducing of the definition now codified in § 101(52). and while i agree with the majority that puerto rico could not take this step because [c]hapter 9 applies to puerto rico in its entirety, i commend the commonwealth for seeking ways to resolve its predicament. even if one ignores the uncertain outcome of any proposed legislation, questions still remain: why would congress intentionally take away a remedy from puerto rico that it had before 1984 and leave it at the sole mercy of its creditors? what legitimate purpose can such an action serve, other than putting puerto rico’s creditors in a position that no other creditors enjoy in the united states? while favoring particular economic interests—i.e., puerto rico creditors—to the detriment of three-and-half million [united states] citizens, is perhaps ‘business as usual’ in some political circles, one would think it hardly qualifies as a 124 columbia journal of race and law [vol. 7:1 rational constitutional basis for such discriminatory legislation.168 though strongly denouncing colonialism, torruella never referred to puerto rico as a nation, instead continually stressing the importance of safeguarding the rights of the “three-and-a-half million [united states] citizens residing therein.” c. the case before the united states supreme court the commonwealth filed its petition for writ of certiorari in the united states supreme court on august 25, 2015, which the court granted on december 4, 2015. even after the federal government filed its brief in sánchez valle, it was unclear which position the obama administration would assume in this second case. as it turned out, the obama administration did not take a position. the department of justice did not appear before the court as an intervenor or an amicus in favor of either party. instead, while the case was briefed, argued, and submitted, the third branch of the federal government showed up. in april 2016, the committee on natural resources of the house of representatives169 introduced “a bill to establish an oversight board to assist the government of puerto rico, including its instrumentalities, in managing its public finances, and for other purposes,” called the puerto rico oversight, management, and economic stability act 168 franklin cal. tax-free trust, 805 f.3d at 355–56 (emphasis added) (internal citations omitted). 169 in yet another “peculiar” aspect of the relationship between puerto rico and the united states, the house committee on natural resources is in charge of handling matters regarding the island. see staff of h. comm. on natural resources, rule x of the rules of the u.s. house of representatives, 114th cong., http://naturalresources.house.gov/about/jurisdiction.htm [https://perma.cc/d5kp-4cxa]. no. 2:80] puerto rico before the u.s. supreme court 125 (“promesa,” quite insultingly).170 after the junta-imposing promesa was introduced,171 many believed that the court would delay issuing an opinion because the bill could moot the case if congress passed any chapter 9-like process. in a strange “coincidence,” the same day in which the court decided sánchez valle to disperse any lingering doubts as to the commonwealth’s lack of sovereignty as a united states territory,172 the house of representatives passed promesa expressly relying on congress’s plenary powers under the territorial clause.173 the court decided puerto rico v. franklin california tax-free trust on the following scheduled opinion day, affirming judgment by a five to two vote.174 in an opinion by justice clarence thomas, the court found that “[t]he plain text of the bankruptcy code begins and 170 puerto rico oversight, management, and economic stability act of 2016 (promesa), h.r. 4900, 114th cong. (2016). 171 although it does much more than that, promesa imposes a fiscal control board (“junta de control fiscal”), whose members, unelected by puerto ricans, would have authority to rule over the island unrestricted by the commonwealth constitution. it is the first time that congress has attempted to directly govern puerto rico’s “internal affairs” since the creation of the commonwealth. id. 172 on june 9, 2016, the author had the “privilege” of being present when the court reiterated that puerto rico remained a territory subject to congress’s plenary powers during the morning and when the house used that plenary power to impose a junta over “its property” during the afternoon. 173 the senate passed promesa on june 29, 2016. see promesa, s. 2328, 114th cong. (2d sess. 2016). president obama signed it into law the following day. see promesa, pub. l. no. 114-187. on august 31, 2016, the president announced the members of promesa’s junta and thus single-handedly appointed puerto rico’s new government: andrew g. biggs; josé b. carrión iii; carlos m. garcía; arthur j. gonzález; josé r. gonzález; ana j. matosantos; and david a. skeel, jr. the junta became effective the next day. it met for the first time on september 30, 2016, in wall street, and elected josé b. carrión iii as its president. 174 puerto rico v. franklin cal. tax-free trust, 136 s. ct. 1938 (2016). 126 columbia journal of race and law [vol. 7:1 ends” the analysis.175 because the code’s definition of “state” includes puerto rico176 and the recovery act is a statute prescribing a method of composition of indebtedness that may bind nonconsenting creditors, the court concluded that the recovery act could not survive. “by excluding puerto rico ‘for purposes of defining who may be a debtor under chapter 9,’” the majority explained, “the code prevents puerto rico from authorizing its municipalities to seek chapter 9 relief,” “[b]ut puerto rico remains a ‘state’ for other purposes of chapter 9, including that chapter’s pre-emption provision.”177 “had congress intended to alter this fundamental detail of municipal bankruptcy,” the court asserted, “we would expect the text of the amended definition to say so. congress, does not, one might say, hide elephants in mouseholes.”178 the court was not persuaded by the commonwealth’s structural argument that it would be “nonsensical” to hold that a provision contained in a chapter of the code that “does not apply” to puerto rico nonetheless preempts one of its statutes. the court replied saying that the argument “rests on the faulty assumption that puerto rico is, ‘by definition,’ excluded from chapter 9” when “it is not.”179 the court never referred to puerto rico as a nation. instead, it reiterated for the second time in five days what it had been reluctant to express clearly for decades: puerto rico remained a territory of the united states uninterruptedly since 1898.180 the term “colony” was also absent from the opinion. judge torruella’s accusations of colonialism were 175 id. at 1946. 176 11 u.s.c. § 101 (2016). 177 franklin cal. tax-free trust, 136 s. ct. at 1942. 178 id. at 1947 (brackets and internal citations omitted). 179 id. at 1941. 180 id. at 1945 (“the third provision of the bankruptcy code at issue is the definition of ‘state,’ which has included puerto rico since it became a territory of the united states in 1898”). no. 2:80] puerto rico before the u.s. supreme court 127 simply ignored, just like his call to invalidate the 1984 simultaneous inclusion-exclusion of puerto rico for chapter 9 purposes.181 justice sotomayor issued a dissenting opinion, which justice ginsburg joined. in their view, “[t]he structure of the code and the language and purpose of § 903 demonstrate that puerto rico’s municipal debt restructuring law should not be read to be prohibited by chapter 9.”182 read “in context,” sotomayor found, “section 903 by its terms presupposes that chapter 9 applies only to states who have the power to authorize their municipalities to invoke is protection” and “[b]ecause puerto rico’s municipalities cannot pass through the § 109(c) gateway to chapter 9, nothing in the operation of a chapter 9 case affects puerto rico’s control over its municipalities.”183 responding to the majority’s assertion that “congress ‘does not, one might say, hide elephants in mouseholes,’” sotomayor accused the court of ignoring “that congress already altered the fundamental details of municipal bankruptcy when it amended the definition of ‘state’ to exclude puerto rico from authorizing its municipalities to take advantage of chapter 9” without even explaining why it did so.184 in her view, then, it is undisputed that congress did hide an elephant in a mousehole; the question is what it intended by doing so. “finding pre-emption here,” she concluded, “means that a government is left powerless and with no legal process to help its 3.5 million citizens.”185 the dissent did not use the words “nation” or “colony” either, nor did it refer to those 3.5 million citizens as an insular minority of united states citizens who just so happen 181 franklin cal. tax-free trust v. puerto rico, 805 f.3d 322, 346 (1st cir. 2015) (torruella, j., concurring) 182 id. at 1949. (sotomayor, j., dissenting). 183 id. at 1952, 184 franklin cal. tax-free trust, 136 s. ct. at 1953. 185 id. at 1954 (emphasis added). 128 columbia journal of race and law [vol. 7:1 to inhabit an unincorporated territory belonging to the united states congress. in fact, the term “territory” did not make it into justice sotomayor’s opinion. iv. solidifying constitutional colonialism: the interplay between legal fiction and social reality the combination of these two decisions illustrates perfectly why puerto rico remains a 21st century colony of the united states. because of the unique test used in sánchez valle to determine whether a jurisdiction is worthy of recognition as a sovereign under the dual sovereignty doctrine, i.e., whether that jurisdiction derives its powers from the same ultimate source, the court could not—or did not want to—adopt the “puerto-rico-is-kind-of-like-a-state” rationale that many courts usually employ to avoid the status issue. instead, the court directly addressed the great historical question and rejected the commonwealth supporters’ claim, stating as clearly as it ever has that “[t]he island’s constitution, significant though it is, d[id] not break the chain.”186 and because this is so, it was not difficult to predict that the court would reject the commonwealth’s “congress-could-not-possibly-have-intended-this” claim in franklin california tax-free trust. the court’s response was straightforward: congress could and it did because puerto rico is a territory and as such is subject to its plenary powers. and that, through a bill that supersedes the commonwealth’s non-sovereign constitution, congress was already taking action to handle puerto rico’s municipal debts. if one adopts a more cynical (perhaps a “realist approach” would be more fair) view of the court’s way of deciding controversies, it is not difficult to understand the outcome of these cases. by telling commonwealth supporters that they indeed fell for a “monumental hoax”187 in 1952 in 186 sánchez valle, 136 s. ct. at 1867. 187 figueroa, 232 f.2d at 620. no. 2:80] puerto rico before the u.s. supreme court 129 sánchez valle, conservative justices solidified congress’s power to do with the territories whatever it wants, while liberals expanded a constitutional protection for criminal defendants in puerto rico. especially considering the position of the united states, a “government liberal” like justice kagan was not likely to vote differently; neither was a more “activist liberal” like justice ginsburg. this view is buttressed by the concurrences: justice thomas would deny recognition as a sovereign to indian tribes, as well, while justice ginsburg would overrule the whole dual-sovereignty doctrine altogether. since oral argument, it was clear that justice sotomayor was sympathetic to the commonwealth’s argument. though she could be characterized as much an “activist liberal” as justice ginsburg, she could not ignore the significance of the court’s reasoning over the puerto rican people’s right to organize themselves as a political entity. thus, criminal defendants’ rights would have to suffer this time, even if one would expect her to join justice ginsburg if the court ever revisited the dual-sovereignty doctrine. and justice breyer, perhaps the court’s quintessential “government liberal,” also voted as one would have expected in the first case. as a first circuit judge from 1980 to 1994,188 no other justice has dealt with more cases arising from puerto rico. during that period, thenchief judge breyer certainly subscribed to what torruella called the first circuit’s “long-lasting commonwealthendorsing caselaw.”189 once the collective right of the people of puerto rico versus the individual rights of criminal defendants dichotomy is taken out of the picture in franklin california tax-free trust, the justices’ votes are even easier to predict, notwithstanding justice scalia’s departure and justice alito’s 188 then-chief judge breyer was succeeded by judge torruella. 189 franklin cal. tax-free trust, 805 f.3d at 346. 130 columbia journal of race and law [vol. 7:1 recusal from the case.190 conservatives voted to protect bondholders—the overwhelming majority of which are americans—based on the statute’s clear text; “government liberals” joined them because the law was simply too clear to ignore, even though the fiscal and economic consequences on the puerto rican people would be disastrous, thus implicitly siding with the conspicuously missing united states; and the more “activist liberals” dissented based on the statute’s structure, context, and consequences over the people of puerto rico and in favor of creditors. analyzed together, sánchez valle and franklin california tax-free trust are two sides of the same ugly coin; two nails in the commonwealth’s coffin. only because of the former’s holding can the latter’s holding be so easily reached. in other words, because the court continues to view puerto rico as a mere possession of congress subject to its plenary powers (cause), the fact that a federal statute expressly denied the commonwealth the opportunity to do what any sovereign country or any state of the union can, is legally irrelevant (effect). to be sure, the court did include seemingly commonwealth-endorsing language in sánchez valle. for example, the court stressed that “for double jeopardy purposes,” it “asks a narrow, historically focused question” and that “[t]he inquiry does not turn, as the term ‘sovereignty’ sometimes suggests, on the degree to which the second entity is autonomous from the first or set its own political course.”191 it also stated that “[t]ruth be told . . . ‘sovereignty’ in this context does not bear its ordinary meaning”192 and that “the 190 it is widely believed that justice alito held puerto rico bonds and thus decided to recuse himself to avoid a conflict of interest. see greg stohr & michelle kaske, scalia, alito court absences shape puerto rico debt-relief bid, bloomberg politics (march 21, 2016), http://www.bloomberg.com/politics/articles/2016-03-21/scalia-alito-courtabsences-shape-puerto-rico-debt-relief-bid [https://perma.cc/uk6x-rdpx]. 191sánchez valle, 136 s. ct. at 1867. 192 id. at 1870. no. 2:80] puerto rico before the u.s. supreme court 131 inquiry [despite its label] does not probe whether a government possesses the usual attributes, or acts in the common manner, of a sovereign entity”193 and that “puerto rico today has a distinctive, indeed exceptional, status as a self-governing commonwealth,”194 even going as far as saying that “the united states and puerto rico have forged a unique political relationship, built on the island’s evolution into a constitutional democracy.”195 i do not doubt that some people will hang on to these remarks for the proposition that the commonwealth is not yet dead, or that the court could use them to resuscitate it by resorting to the usual “puerto-rico-is-sort-of-like-a-state” argument, should it be necessary in a future case. but the court’s and the united states government’s actions speak louder than its words, and, in these cases, some words speak much louder than others. what other questions need be answered before one can conclude that puerto rico is a colony of the united states, if one accepts, as the court correctly concluded, that puerto rico’s constitution “[did] not break the chain”196 or that its ultimate source of power “[lies] in federal soil”?197 in what world can a jurisdiction be both a constitutional democracy and an unincorporated possession subject to the plenary powers of a legislative assembly in which that jurisdiction’s members are not represented? only in the fictional world of the insular cases. professor efrén rivera ramos brilliantly explained that, through the insular cases, the united states supreme court created a new “discursive universe” in order to legitimize united states expansionism at the turn of the 20th 193 id. 194 id. at 1874 (emphasis added). 195 id. at 1868. 196 id. at 1876. 197 sánchez valle, 136 s. ct. at 1868. 132 columbia journal of race and law [vol. 7:1 century.198 the same ideas of american superiority and white supremacy that gave us dred scott v. sandford199 and plessy v. ferguson200201 led the court to construct a “legal identity” for “porto rico” and “its inhabitants” that never coincided with the island’s social reality or that of its people. in keeping with this legal fiction, the united states reports would never reflect that the united states invaded puerto rico on july 25, 1898 to take military control of the island, after spain allegedly bombed the u.s.s. maine. instead, they would state that, on december 10, 1898, spain “ceded” its colonies—puerto rico, guam, and the philippines—to the united states in exchange for $20 million.202 as justice kagan stated in puerto rico v. sánchez valle, the treaty that secured this deal also “tasked congress with determining ‘[t]he civil rights and political status’ of 198 see rivera ramos, supra note 66, at 127. 199 dred scott v. sandford, 60 u.s. 393 (1857) (holding that black persons were not, and could never be, u.s. citizens because the framers never considered them part of “the people of the united states,” and that the federal government had no power to regulate slavery in the federal territories acquired after the creation of the united states) superseded by constitutional amendment, u.s. const. amend. xiii-xiv. 200 plessy v. ferguson, 163 u.s. 537 (1896) (upholding the constitutionality of state laws requiring racial segregation in public facilities under the “separate but equal” doctrine), overruled by brown v. bd. of educ., 347 u.s. 483 (1954). 201 several commentators have noted the correlation between plessy and the insular cases. see, e.g., torruella, supra note 66. much less has been written, however, about the correlation between the insular cases and dred scott, which i believe is more enlightening. the latter not only spoke extensively about the territories, but its treatment of black people as property is more similar to the treatment of puerto rico as a mere possession, than is plessy’s separate-but-equal fiasco, on which prostatehood commentators who conceive themselves as americans like to rely. see, e.g., the enduring legacy of plessy v. ferguson in puerto rico, puerto rico report (feb. 7, 2013), http://www.puertoricoreport.com/the-enduringlegacy-of-plessy-v-ferguson-in-puerto-rico/ [https://perma.cc/9f4f-h7rl]. 202 sánchez valle, 136 s. ct. at 1868. no. 2:80] puerto rico before the u.s. supreme court 133 [puerto rico’s] inhabitants.”203 the fact that puerto ricans took no part in this real estate transaction did not matter.204 but because the united states could not have colonies, of course, what was a european colony one day magically turned into an “unincorporated territory” overnight. its people would never be referred to as a latin american nation, but as mere “inhabitants.” through the “territorial clause,” which grants congress power to “dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states,”205 the court would constitutionally legitimize the “acquisition” (by conquest and purchase) of “distant possessions”206 and the political and legal subordination of the “alien races”;207 “alien and hostile people”;208 and “distant ocean communities of a different origin and language from those of our continental people”209 that inhabited them.210 203 id. (quoting treaty of peace between the united states and spain, spain-united states, art. 9, dec. 10, 1898, 30 stat. 1759 (1898)). 204 ironically, in order to assuage the cuban independence movement, which was in the middle of its second independence war against spain, in 1897 the european power had “granted” the carta autonómica to both islands, under which puerto ricans had more representation in the spanish legislative body than we have ever had in congress. see josé trías monge, puerto rico: the trials of the oldest colony in the world (1997). 205 u.s. const. art. iv, § 3, cl. 2 (emphasis added). 206 downes, 182 u.s. at 282. 207 id. at 287. 208 id. at 308. 209 balzac, 258 u.s. at 311. 210 perhaps no one has explained the court’s treatment of puerto rico and puerto ricans in the insular cases more eloquently than the attorney general of the united states in downes: we must not forget that “territory belonging to the united states” is the common property of the united states and is to be administered at the common expense and for the common benefit of the states united, who jointly, as a governing entity, own it. 134 columbia journal of race and law [vol. 7:1 not one justice questioned the legitimacy of the exercise of united states sovereignty over puerto rico, even though they themselves recognized that puerto ricans had never consented to it. instead, the original divide was between those justices who would have “annexed” the acquired property completely, thus granting (never “imposing”) the new “dependent peoples” all the protections of the constitution, and those justices who strongly feared the consequences of such action. ultimately, the latter group won and the “unincorporated territory”—nowhere found in the constitution—was invented. justice brown explained the court’s rationale as follows in downes: it is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production, which may require porto rico [sic] and the philippines were not won by arms and taken over by treaty through the effort or influence or at the expense of its inhabitants, but through the might of the united states, upon their demand and upon their contribution of $20,000,000 to spain, and upon the assumption by treaty of solemn national obligations which the united states, not the islands or their inhabitants, are bound to observe and keep. the inhabitants of the islands are not joint partners with the states in their transaction. the islands are “territory belonging to the united states,” not a part of the united states. the islands were the things acquired by the treaty; the united states were the party who acquired them, and to whom they belong. the owner and the thing owned are not the same. see rivera ramos, supra note 66, at 114 (quoting de lima, 182 u.s. at 102 (emphasis added)). no. 2:80] puerto rico before the u.s. supreme court 135 action on the part of congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native indians. . . . . a false step at this time might be fatal to the development of what chief justice marshall called the american empire. choice in some cases, the natural gravitation of small bodies toward large ones in others, the result of a successful war in still others, may bring about conditions, which would render the annexation of distant possessions desirable. if those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought, the administration of government and justice, according to anglo-saxon principles, may for a time be impossible, and the question at once arises whether large concessions ought not be made for a time that ultimately our theories may be carried out, and the blessings of a free government under the constitution extended to them.211 unfortunately, this legal fiction’s “constitutive effect”212 has not only gotten stronger over the years, but is also now the very “objective” source from which the executive, legislative, and judicial branches continue to justify the exercise of american sovereignty over puerto rico.213 indeed, though the 211 rivera ramos, supra note 66, at 112 (quoting downes, 182 u.s. at 282, 286–87). 212 id. at 121–42. 213 professor rivera ramos referred to the court’s methodological approach throughout the insular cases as “instrumental eclecticism”: 136 columbia journal of race and law [vol. 7:1 court did not mention them, these are the shameful precedents that sánchez valle and franklin california taxfree trust implicitly, but necessarily, validate. even without express racial and imperialist statements, the court’s interpretation of congress’s treatment towards puerto rico in sánchez valle is patronizing and disrespectful to puerto ricans. like their predecessors, the majority validated congress’s plenary power to do with puerto rico as congress wishes, based on an international treaty in which puerto ricans took no part. puerto rico is still not a nation in the united states reports. the court was very careful when referring to the island and its members. it is still safer, both politically and legally, to resort to phrases like “people of puerto rico” or the “citizens residing therein” because the limbo that is the territorial commonwealth does not clearly allow the unambiguous use of the terms “americans” (although “american citizens” is accepted as a legal reality) or “puerto ricans” (as a distinct national community under international law as opposed to merely persons residing on the island) when referring to the inhabitants of this particular land.214 the alternation from a predominantly instrumentalist and contextualized interpretative technique in the 1901 decisions to a largely formalist approach in the second group of cases and back to instrumentalism and contextualism in balzac provides a picture of a strategy of interpretation that is, ultimately, profoundly instrumentalist. in effect, this strategy of contextual selection of interpretative techniques—evident in those shifts as well as in the intermingling of approaches within some of the opinions themselves—can best be described as instrumental eclecticism. id. at 108 (internal citation omitted). 214 after all these years, it appears that the court still treats puerto rico as “foreign in the domestic sense.” christina duffy burnett & burke marshall, foreign in a domestic sense: puerto rico, american expansion, and the constitution 1 (2001). no. 2:80] puerto rico before the u.s. supreme court 137 absent from the court’s historical account in sánchez valle was that the island was under direct united states military rule from 1898 to 1900.215 the foraker act of 1900 would later “establish” (not “impose”) a civil government in which the united states president appointed the governor, the whole supreme court, and the upper house of the legislature.216 as the court correctly pointed out, “[f]ederal statutes generally applied in puerto rico.”217 the fact that puerto ricans never consented to such colonial subordination is still irrelevant to the court a century later. then came the jones act of 1917, by which “congress granted puerto rico additional autonomy” and “gave” (not “imposed” onto) “the island’s inhabitants united states citizenship” (without acknowledging any sort of puerto rican internationally-recognized citizenship) and “replaced the upper house of the legislature with a popularly elected senate.”218 puerto ricans took no part in this process either. and puerto rico would have to wait until 1947 to elect its own governor, when congress magnanimously “empowered the puerto rican people to elect their own governor, a right never before accorded in a [united states] territory.”219 finally, the court reached public law 600 of 1950 and the creation of the commonwealth of puerto rico through the adoption of its constitution on july 25, 1952, exactly fifty-four years after the united states navy invaded puerto rico in 215 to put things in perspective, the official military occupation of iraq after operation iraqi freedom in 2003 was followed by the establishment of the iraq interim governing council in 2004; less time than it took the u.s. military to establish a “civil” government in puerto rico in 1900. see kenneth katzman, cong. research serv., rl31339, iraq: u.s. regime change efforts and post-saddam governance (2004); library of congress, chronology of puerto rico in the spanish-american war, https://www.loc.gov/rr/hispanic/1898/chronpr.html [https://perma.cc/5d53kaus]. 216 sánchez valle, 136 s. ct. at 1868. 217 id. (emphasis added). 218 id. 219 id. 138 columbia journal of race and law [vol. 7:1 1898.220 amazingly, the majority in sánchez valle somewhat endorsed the traditional commonwealth-supporting discourse according to which puerto ricans supposedly consented, while rejecting its most basic premise: that it was an act of sovereignty through which the puerto rican nation engaged in a process of self-determination. indeed, the court had its cake and ate it too. the truth is that many puerto ricans did not participate in what they recognized as a hoax that would not alter the island’s legal subordination to congress.221 it is also true that the majority of puerto ricans who participated undoubtedly voted in favor of the constitution, and thus the creation of the estado libre asociado. 222 but what exactly did 220 july 25 is a very significant date in puerto rican history: united states forces invaded puerto rico on july 25, 1898; the commonwealth was created on july 25, 1952; and the cerro maravilla massacre occurred on july 25, 1978. the cerro maravilla massacre is the name given by the puerto rican public and media to the events that transpired that day at cerro maravilla, a mountain in puerto rico, wherein two young proindependence activists were murdered in a police ambush. the event sparked a series of political controversies where, in the end, the police officers were found guilty of murder and several high-ranking local government officials were accused of planning and/or covering up the incident. see laura rivera melendez, romero: mistake to call police “heroes” in cerro maravilla, http://www.puertoricoherald.org/issues/2003/vol7n38/romeromistake-en.html [https://perma.cc/ce5l-7jdm]. 221 according to report 82-1832 of the united states house of representatives, 41.61% of registered voters did not participate in the march 3, 1952 plebiscite to adopt or reject the commonwealth constitution. h.r. rep. no. 82-1832, at 1896 (1952). 222 the pdp and the statehood parties then in existence called for their supporters to vote in favor of the adoption of the constitution; the pip called for a vote to reject it. of those who participated, 81.88% voted in favor. pedro albizu campos and the nationalist party called on their followers to abstain and had even organized an armed insurrection less than two years earlier in order to denounce what they already perceived as another colonial organic charter. as one would expect the united states government to do in those circumstances, the rebellion was quickly suppressed and its followers both prosecuted and persecuted. thus, while the constitutional convention was taking place, not only did independence supporters boycott it, but many of their leaders were actually incarcerated. no. 2:80] puerto rico before the u.s. supreme court 139 they consent to? they consented to what the commonwealth argued in sánchez valle, which the court rejected. they consented to what they mistakenly believed was a [s]overeign creature unbound by congress’s plenary power to handle its internal affairs, not one that lacks sovereignty even to criminally prosecute its people; one that congress can mistreat statutorily by denying its municipalities the ability to restructure their debts; or one over which congress can impose promesa’s undemocratic junta notwithstanding its constitution’s text. and they consented under the impression that something different was going on. it was precisely that generalized mistaken understanding that moved the united nations to remove puerto rico from the list of nations that had not exercised their right to self-determination under international law in 1953 at the behest of the united states and commonwealth supporters.223 puerto ricans never freely consented to the commonwealth as described by the court. and even if that were not the case, it is undisputed that neither independence nor statehood was ever “offered” to the puerto rican people. thus, to use the approval of the constitution as an excuse to legitimize the exercise of american sovereignty over the 223 josé a. delgado, puerto rico’s case before the un, el nuevo día, http://www.elnuevodia.com/english/english/nota/puertoricoscasebeforetheu n-2212546/ [https://perma.cc/q5pk-nnef]. since 1953, independence supporters (and those who advocate for a sovereign commonwealth) have continually asked the decolonization committee of the united nations to intervene on the matter and to put puerto rico back on the “colonies list.” so have a few statehood supporters, albeit they prefer to look to congress for a solution. meanwhile, the united states has done nothing. in what is truly unprecedented, as soon as the united states filed its brief in sánchez valle, and again after the court issued its decision, governor alejandro garcía padilla, an avid commonwealth supporter of the most orthodox wing of the pdp, turned to the u.n. to denounce what he believed was a historical change of position by the united states in favor of pure colonialism. see also andre lee muñiz, puerto rico’s colonial case in the united nations, la respuesta (aug. 17, 2014), http://larespuestamedia.com/puerto-ricoscolonial-case-in-the-united-nations/ [https://perma.cc/qz7t-3fax]. 140 columbia journal of race and law [vol. 7:1 island is quite fantastic, considering that the commonwealth was nothing more than a take-it-or-leave-it offer that did not change congress’s authority over the island. under those circumstances, should commonwealth supporters—and puerto ricans in general—be faulted for preferring the enactment of a bill of rights and a constitution that would fictitiously grant them a greater level of autonomy and stronger individual rights over the more-direct colonial regime of the jones act of 1917? one would hardly think so. more importantly, even if those puerto ricans had happily consented to a non-sovereign, unincorporated territorial commonwealth (i.e., a colony), it is truly mindboggling how said “compact”—and, again, the court finally admitted that it was not—has been able to survive for more than six decades either under american constitutional law or under the most basic principles of human rights under international law. puerto rico is a colony not merely because puerto ricans, whether “foreign nationals” or “real americans,” have never in 118 years procedurally consented to such a degrading treatment in a congressionally-binding legal process,224 but also because puerto rico, and puerto 224 since 1952, congress has not taken any action with regard to the status of puerto rico. during the same period, there have been four referendums on the island. the (mistakenly-believed [s]overeign) commonwealth option won in 1967 and 1993. npp governor pedro rosselló gonzález attempted his second referendum in 1998, this time leaving out the commonwealth option that he believed colonial in nature. commonwealth supporters sued and the puerto rico supreme court, still “controlled” by pdp-appointed justices, ordered that a “none of the above” fifth column be added to the options. commonwealth supporters voted for that option, which was understood to be the (still-mistakenly-believed [s]overeign) commonwealth, and won the referendum. in 2012, npp governor luis fortuño passed yet another referendum, this time consisting of a two-part process: the first question asked whether one wished to maintain the island’s territorial status (in which the “no” won) and the second question asked one to choose between statehood, independence, and a sovereign nation in free association with the united states (in which “statehood” received the most votes). as usual, commonwealth supporters criticized the referendum as biased and did not acknowledge its results. after sánchez valle was decided, there has been no. 2:80] puerto rico before the u.s. supreme court 141 ricans, are substantively subordinated to the united states. federal regulations apply in puerto rico exactly as if it were a state of the union, but puerto ricans do not vote for the president or the vice president. the district court for the district of puerto rico interprets and applies federal law over puerto ricans (except when they “do not apply”) even though an executive that they do not elect appoints their judges. federal law applies today because congress said so a century ago, notwithstanding the fact that puerto ricans do not elect senators or representatives; instead, we elect one “resident commissioner” who sits on the house of representatives, but does not vote.225 no court in 2016 should continue to constitutionally validate such a degrading colonial relationship under the guise that it was consented to by some. v. breaking the chain: the role of the united states supreme court it is clear that the real problem underlying sánchez valle and franklin california tax-free trust is not merely puerto rico’s lack of [s]overeignty to criminally prosecute or congress’s different statutory treatment towards the island under the bankruptcy code, but the degrading colonial relationship between puerto rico and the united states that allows such constitutional and statutory discrimination. the solution is just as easily identifiable: the chain must be broken. and puerto ricans must break it under international law, not congress unilaterally or the court under american constitutional law. discussion within the pdp to propose still another internal referendum, this time to ask puerto ricans whether they want statehood, anticipating that a majority would answer no to that question. none of these plebiscites mean anything because none have ever been sanctioned by either congress or international bodies, and neither the npp nor the pdp have taken political action based on their results. 225 the resident commissioner can vote in house committees, but not for the approval of the final legislation. rules of the house of representatives, 114th cong., rule iii, § 675 (2015). 142 columbia journal of race and law [vol. 7:1 since i too hold some truths to be self-evident, no extensive discussion is warranted here to explain why puerto rico is sociologically a nation.226 it is “a nation without its own sovereign state,”227 but a nation nonetheless. “more to the point, it may be described as a nation in a relationship of political subordination to a metropolitan state.”228 in other words, puerto rico is cuba, not guantánamo bay naval base. the time has come for the court to acknowledge this sociological reality so that the correct legal conclusions can finally follow logically from the annals of the united states reports.229 226 on this topic, i must again defer to professor rivera ramos, who addressed it as follows: nations do not have essences, in the sense of immutable constitutive traits. nation is rather a sociocultural construct used to refer to certain collective phenomena, which usually consist of groups or communities of people with perceptible common characteristics and a sense among its members of belonging to the collectivity. beyond that basic notion, there may be great disagreement over the nature of the common elements necessary for a nation to be said to exist. there may also be discrepancies regarding the weight that should be accorded to so-called objective and subjective criteria. the debate may be of an academic nature. but, as the case of puerto rico shows, it is also a political polemic in which participants take positions influenced by their preferred visions of the community’s future. rivera ramos, supra note 66, at 11 (internal citations omitted). 227 id. at 13. 228 id. 229 on august 13, 2016, puerto rican tennis player mónica puig gave the island its first-ever olympic gold medal. each victory she obtained in río was followed closely and celebrated in puerto rico as a national holiday in and of itself. immediately after winning her championship match, puig stated as follows: “i think i united a nation.” puerto ricans of all walks of life rejoiced that night. later, thousands of puerto ricans filled the streets to welcome her at the airport upon her arrival and many more thousands skipped their jobs on a tuesday to attend the official celebration prepared by the government. such a reaction to puerto rican athletic no. 2:80] puerto rico before the u.s. supreme court 143 because this is so, the people of puerto rico must freely exercise their right to self-determination under the united nations’ declaration on the granting of independence to colonial countries and peoples of 1960 (resolution 1514(xv)).230 puerto ricans must do what spain and the united states have never legally allowed us to do and what performances, a cultural phenomenon that is not new in puerto rico, is best understood as a consequence of our collective need to affirm ourselves as a nation. see sandra lilley, “this is for them”: monica puig wins puerto rico’s 1st olympic gold, nbc news (aug. 12, 2016, 7:58 pm), http://www.nbcnews.com/news/latino/them-monica-puig-wins-puerto-ricos-1st-olympic-gold-n630156 [https://perma.cc/gm2z-5lnn]; lee moran, puerto rico loses it as monica puig wins island’s first-ever olympic gold, the huffington post (aug. 14, 2016, 4:36 am), http://www.huffingtonpost.com/entry/monica-puig-puerto-ricopicapower_us_57b01d95e4b007c36e4f09d2 [https://perma.cc/62de-6xfc]. it is fair to say that puerto ricans’ response had to do more with sociology and politics than sports, especially because of remarks made during the olympics by a former tennis player born and raised in puerto rico, beatriz “gigi” fernández, about the island’s choice of flag-bearer, a black man born in the dominican republic. fernández drew attention to herself by suggesting that those who criticized her decision to represent the united states in barcelona 1992 and atlanta 1996 instead of puerto rico were hypocrites if they supported puerto rico’s flag bearer. fernández won olympic gold for the united states in women’s doubles twice alongside mary joe fernández, herself born in the dominican republic. she was heavily criticized for her decision not to represent puerto rico. regardless of what one thinks about this issue, its relevance for purposes of this article is that it illustrates how the status question affects almost all aspects of puerto rican society and supports the notion that most puerto ricans, including those who favor statehood, conceive themselves, both consciously and subconsciously, as something other than americans. 230 eighty-nine nations voted in favor of resolution 1514(xv) on december 14, 1960, none voted against, and nine abstained: australia, belgium, dominican republic, france, portugal, spain, union of south africa, united kingdom, and united states. except for the dominican republic, then under the right-wing dictatorship of rafael leónidas trujillo molina, the rest of those countries that abstained were major colonial powers, including the united states. united nations, yearbook of the untied nations, 1960, 49–50 (1961). see also letter from president eisenhower to prime minister macmillan (dec. 10, 1960), in foreign relations of the united states, 1958-1960, western europe, vol. 8, pt. 2, document 384 (1993), https://history.state.gov/historicaldocuments/frus1958-60v07p2/d384 [https://perma.cc7enu-r37t]. 144 columbia journal of race and law [vol. 7:1 commonwealth supporters incorrectly believed that happened in 1952: freely decide our future as a political community based on the [s]overeignty that we do possess as a nation but which has been legally denied for centuries. congress’s role, then, should be limited to determining whether it will really accept puerto ricans’ will if we vote in favor of becoming a state of the union or instead immediately recognize the puerto rican people’s national sovereignty under international law. whether that sovereignty is then employed to remain an independent country, as that term is ordinarily understood, or to reach a truly sovereign economic or political agreement between two nations, through an internationally-recognized treaty binding on both parties, is a matter for puerto ricans to decide later and for the united states to ponder if the latter is preferred. but what can the court do in the meantime, if anything? as stated above, it should attempt to move the law closer to sociological reality. it must recognize that puerto rico is a nation and that puerto ricans must decide their future, not congress alone; that it was the executive that unilaterally took control of the island; that it was congress that unilaterally made puerto ricans american citizens; that it was the court itself that invented the “unincorporated territory” in order to justify congress’s plenary (colonial) powers over “porto rico” and “its inhabitants”; and that puerto ricans have never consented to such ridiculous treatment. thus, the court must finally revisit the insular cases. a harder question is what the court should replace the insular cases with. here, perhaps like on the national element, i part ways with statehood supporters like district judge gelpí and circuit judge torruella, to whom the answer is simple: treat puerto ricans “equally” to americans by fully applying the constitution. they have advocated for this “solution” in several ways, one of which is overruling the insular cases or at least modifying them to declare puerto rico an “incorporated” territory, something that many no. 2:80] puerto rico before the u.s. supreme court 145 commentators see as nothing more than a judiciallysanctioned path to statehood, in part because there has never been an incorporated territory that has not become a state.231 in franklin california tax free-trust, torruella also suggested that different treatment towards puerto rico should be subjected to some form of heightened scrutiny.232 though i share their sentiment that the full application of the american constitution in puerto rico is preferable to the who-knows-what-applies situation currently in place, under which the united states government both exercises its proclaimed sovereignty while it denies people who it determined were american citizens the full rights of the federal constitution, i believe the court should decline such invitations. their approach fails to acknowledge that many puerto ricans do not see themselves as americans, nor do they want to. thus, judicial “incorporation” in order to bring “equality” (again, with americans) conveniently ignores that many puerto ricans want, just as fervently, “equality” (with the rest of the nations of the world, including the united states itself). thus, the reasoning is as problematic as that of many liberals in congress who see promesa as a way to help puerto rico, ignoring the fact that no political party on the island supported that measure because the creation of a small, undemocratic junta over the puerto rican people is an insult. like all the justices in the insular cases, these proponents do not really take issue with the validation of the exercise of american sovereignty over puerto rico through a treaty in which puerto ricans never participated; they simply 231 see consejo de salud playa de ponce v. rullan, 586 f. supp. 2d 22 (d. p.r. 2008) (holding that, in view of the historical relationship between the united states and puerto rico, the latter has become an incorporated territory); but see igartúa-de la rosa v. united states, 417 f.3d 145 (1st cir. 2005) (en banc) (rejecting such a view over torruella’s dissent). see also saavedra gutiérrez, supra note 66 (advocating for the same). 232 franklin cal. tax-free trust, 805 f.3d at 354 (torruella, j., concurring). 146 columbia journal of race and law [vol. 7:1 would have sided with the initial minority that would have applied the constitution in its entirety. why such an approach would be less colonial in nature is beyond me. differentiation is not discrimination. the problem with the insular cases is the legal subordination of puerto rico, not its recognition as something other than the united states; 500 years of history show that it is. to suggest that equality within the union is the only way to treat puerto ricans with dignity under the law, and that courts should decide so, is disrespectful to the collective right of the puerto rican people to determine their future as a political community. even puerto ricans who see themselves as americans and would like the island to be the fifty-first state should not favor the imposition of a law to which puerto ricans never consented. just like independence advocates should not try to infuse the non-sovereign commonwealth with attributes of sovereignty that it clearly never had just to play republic, neither should statehood advocates just to feel they are in a state of the union. regardless, after the october 2015 term, attempts to constitutionally equate puerto rico with states, either because of the passage of time or otherwise, seem less likely to succeed than ever before. as justice kagan eloquently stated for the court, “there is no getting away from the past.”233 instead of moving the court to judicially “incorporate” puerto rico more and more, i would instead suggest a much more modest approach if it ever revisits the insular cases. besides dropping the euphemistic historical account unfortunately reiterated by the court in sánchez valle, the court should acknowledge that most of what was said in the insular cases is not really constitutionally-mandated, but invented at a time when the court’s members could not see beyond their bigoted ideas of american superiority and white supremacy. no deference should be given to those holdings. whether an avowed originalist or a critic, no justice should 233 sánchez valle, 136 s. ct. at 1876. no. 2:80] puerto rico before the u.s. supreme court 147 feel compelled to follow that doctrine, just like none would rely on dred scott’s or plessy’s rationale or statements. the court should use its newly-found flexibility in order to address responsibly the complexity of trying to apply american law, both constitutional and statutory, to a jurisdiction whose members, whether americans or not, have never consented to it; and especially consider whether it should have power to do impose it at all. it should not. unfortunately, fashioning a judicial remedy to this court-created conundrum is difficult. the puerto rican in me would ask the court to invalidate everything pursuant to international law or american constitutional principles (pub. law 600 and the territorial commonwealth; the jones act of 1917; the foraker act of 1900; and the treaty of paris of 1898 itself), under the basic principle that the united states cannot acquire nations without their consent and treat their people as second-class citizens for over one hundred years. on the other hand, the lawyer in me cannot find a more nonjusticiable political question than the one considered in this article. there may be alternatives for the short term, but not very good ones. the court could, for instance, expressly adopt some chevron-like deference with regard to cases coming from commonwealth courts.234 at least commonwealth judges are appointed and confirmed by persons elected by puerto ricans. in fact, the court had granted so few cases from puerto rico over the last sixty years that one wonders whether it had already internally adopted such an approach. but what to do with to the united states district court for the district of puerto rico, whose judges are appointed by a president, and confirmed by senators, the puerto rican 234 see chevron v. nat. res. def. council, inc., 467 u.s. 837 (1984) (holding that courts must defer to an agency’s reasonable interpretation of an ambiguous statute). 148 columbia journal of race and law [vol. 7:1 people do not vote for? and even if their decisions were not reviewable, should commonwealth judges have to apply federal law, either constitutional or statutory, even though puerto ricans do not participate in the federal (“national,” from an american perspective) political process? there is simply no way around it. unless the court rules that the united states government cannot exercise its unilaterally proclaimed sovereignty over puerto rico anymore, the solution must be political in nature. the court should at least assure that the decision not be taken for the puerto rican people through a court of law, whether federal or territorial. as a result of the island’s territorial status and its validation through the insular cases, questions of the utmost importance will continue to be addressed and answered by courts, and then undemocratically applied to puerto rico without its people’s consent or participation in the political arena. the most contentious questions in the united states, such as those dealing with abortion, gay marriage, campaign finance regulations, gun control, among many others, have already been answered for puerto ricans. whatever federalism concerns are usually involved in those cases, they are minimal compared to the problems that their imposition creates in puerto rico, regardless of whether one likes the particular outcome or not. in puerto rico, they are not recognitions of individual rights, but acts of pure colonialism. vi. conclusion the october 2015 term will go down in history as the most significant one for puerto rico-united states relations in more than a century. the united states supreme court opted to address the issues presented in a constitutional case arising from the commonwealth courts and a statutory case arising from the united states district court for the district of puerto rico, the answer to which directly related to one’s understanding of the nature of the political status between both nations. in doing so, the court set in motion a series of unprecedented actions that illustrate, now more clearly than no. 2:80] puerto rico before the u.s. supreme court 149 ever, why puerto rico legally remains a 21st century colony of the united states. unless puerto rico exercises its right to selfdetermination under international law through a process that legally forces the united states government to either allow puerto ricans to decide whether they wish to become a state of the union or recognize puerto rico’s full national sovereignty—completely removing the island from congress’s plenary powers under the territorial clause of the constitution—both commonwealth and federal courts will struggle to define how to apply american constitutional principles to a jurisdiction whose members have not even decided whether they are americans at all. until that day comes, attempts to reconcile puerto rico’s sociological reality with american federalism principles will continue to erode both american constitutionalism and the puerto rican people’s right to decide their political destiny on their own, solidifying america’s century-old constitutional colonialism over puerto rico. because it was the united states supreme court that invented the doctrine that unabashedly justified the legal discriminatory treatment of puerto rico while granting unlimited political power to congress without questioning the legitimacy of american rule over the island in the insular cases, the court should revisit this doctrine sometime in the future. when it does, however, it will have to deal with the repercussions of trying to decide legal questions that will produce obvious political repercussions over the puerto rican people. whatever decision the court ultimately makes to overturn one of the most shameful doctrines it has ever developed, it should be mindful that every single constitutional and statutory interpretation that it reaches based on american law will unavoidably constitute yet another act of colonialism when applied to a nation whose members have been denied participation and representation in the federation’s and in the international community’s political bodies. muhammad eic below line am 2013 columbia journal of race and law 147 147 147 147 147 147 147 the trans-atlantic slave trade: a legacy establishing a case for international reparations patricia m. muhammad* this article examines the legal principle of restitution (reparations) as applied to crimes against humanity that were committed as a result of the trans-atlantic slave trade, as enumerated in international conventions and statutes. the trans-atlantic slave trade’s peculiar attractiveness to western nation-states that implemented the institution placed a long-term social, mental, and economic hindrance upon the displaced descendants of its victims.1 this article also discusses possible legal theories upon which the atrocities of the trans-atlantic slave trade may be adjudicated in an international criminal tribunal, thus establishing a case for international reparations, as well as legal obstacles to such cases. the crimes committed throughout the history of the trans-atlantic slave trade warrant a legal remedy in the form of international reparations. the award of reparations serves as an introductory measure toward compensating the descendants of the victims of the slave trade, who continue to suffer under its vestiges and are still deprived of their basic civil liberties and human rights throughout the international community. i. introduction…………………………………………………………… 149 ii. legal history of reparations…………………………………… 151 a. legal concept of reparations & trends in the 19th–20th centuries... 151 1. native americans in the united states……………………… 152 2. black americans and the civil war………………………….. 155 3. jewish people and the holocaust……………………………. 156 4. japanese internment in the united states…………………... 158 5. new zealand and indigenous persons……………………… 160 6. south african apartheid……………………………………… 160 * associate counsel, city board of school commissioners, j.d., university of baltimore school of law, b.s., morgan state university. dedicated to my godfather, james e. longus, who always believed in me, and to those past and present who devoted their lives to seeking truth and justice. we must seek justice where there is none. 1 see vincene verdun, if the shoe fits, wear it: an analysis of reparations to african americans, 67 tul. l. rev. 597, 633 (1993) (“the reparationist would argue that these spiritual injuries—the pain and suffering of slavery—have had a significant and lasting impact on the african-american community.”). 148 the trans-atlantc slave trade vol. 3:2 7. summary of trends in restitution for historical injustices.. 161 b. difficulty in attaching a monetary value for crimes against humanity……………………………………………………………… 164 c. the trans-atlantic slave trade’s legalized legacy of discrimination………………………………………………………… 165 iii. legal issues for enforcing applicability of international reparations……………………………………… 175 a. ascertaining jurisdiction/sovereignty standards for international criminal tribunal…………………………………………………….. 175 1. territorial jurisdiction……………………………………….. 176 2. personal jurisdiction…………………………………………. 177 3. maritime jurisdiction………………………………………… 178 4. feasibility of an international tribunal for the trans-atlantic slave trade and legacies…………………… 179 5. potential legal claims……………………………………….. 180 6. issue of standing……………………………………………... 181 b. legal difficulty of retroactivity……………………………………... 183 c. applicability of statute of limitations………………………………. 185 d. legal strategies………………………………………………………. 187 e. legal arguments opposing reparations…………………………… 191 iv. additional legal considerations…………………………….. 195 a. identifying descendants of the trans-atlantic slave massacre…… 195 b. forms of legal reparations…………………………………………. 198 2013 columbia journal of race and law 149 149 149 149 149 149 149 v. conclusion………………………………………………………………. 201 i. introduction in the realm of international jurisprudence, the trans-atlantic slave trade—a crime against humanity2—has been one of the most disregarded atrocities. millions of africans were enslaved, tortured, kidnapped, and murdered, both in the name of god and in the name of greed.3 this gruesome legal enterprise calls for international justice, as the perpetrators of these unanswered international criminal offenses have ignored the fettered cries that echo in the bleak darkness of injustice.4 until the international community addresses the vestiges of disenfranchisement which remain interwoven in the garb of its societies, a new dialogue in world history will not be achieved. thus, the 2 as defined by international law. see convention on the non-applicability of statutory limitations to war crimes and crimes against humanity, g.a. res. 2391 (xxiii), u.n. gaor, 23rd sess., supp. no. 18, u.n. doc. a/7218, at 40 (nov. 26, 1968) (citing resolutions “which expressly condemned as crimes against humanity the violation of the economic and political rights of the indigenous population on the one hand and the policies of apartheid on the other”); world conference against racism, racial discrimination, xenophobia and related intolerance, durban, s. afr., aug. 31–sept. 8, 2001, report of the world conference against racism, racial discrimination, xenophobia and related intolerance, u.n. doc. a/conf.189/12.see also loi 2001-434 du 21 mai 2001 tendant à la reconnaissance des traites et des esclavages comme crime contre l'humanité (may 21, 2001), available at http://www.senat.fr/leg/tas00-087.html (“the french republic recognizes both the transatlantic and indian ocean negro slave trade, on the one hand, and slavery itself, on the other, that were practiced from the fifteenth century, in the americas, the caribbean, the indian ocean, and europe against african, amerindian, malagasy and indian populations, as constituting crimes against humanity.”); 570 parl. deb., h.l. (5th ser.) (1996) 14 (u.k.), available at http://hansard.millbanksystems.com/lords/1996/mar/14/slavery-legacy#s5lv0570p0_19960314_hol_214 [hereinafter lord gifford debate]. see generally patricia m. muhammad, the trans-atlantic slave trade: a forgotten crime against humanity as defined by international law, 19 am. u. int’l l. rev. 883 (2004) (discussing the history and illegality of the trans-atlantic slave trade). 3 hugh thomas, the slave trade: the history of the atlantic slave trade 147 (1997) (“[a] jesuit, frei miguel garcía, who, arriving in brazil about 1580, and being among the earliest members of the order to reach that dominion, was horrified to find that his society owned africans, who as he thought, had been illegally enslaved. he decided to refuse to hear confession from anyone who owned african slaves.”). from 1444 onwards zurara’s history mentions in every chapter kidnappings of more and more africans by portuguese captains in ever more southern latitudes . . . . sometimes the captures were easy but sometimes zurara said “our men had very great toil in the capture of those who were swimming, for they dived like cormorants, so that they could not get hold of them; and the capture of the second man caused them to lose all the others. for he was so valiant that two men, strong, as they were, could not drag him into the boat until they took a boathook and caught him above the eye, and the pain of this made him abate his courage, and allow himself to be put inside the boat.” id. at 56–57. the stern puritanism of early days endeavored to carry this out literally. consequently, around 1640 when a certain captain smith attacked an african village and brought some of the unoffending natives home, he was promptly arrested. eventually, the general court ordered the negroes sent home at the colony’s expense, “concerning themselves bound by first opportunity to bear witness against haynos & crying sinn of manstealing as also future as may sufficiently deterr all oth’s belonging to us to have to do in such vile & odios courses, justly abhorred of all good & just men.” w.e.b. dubois, the suppression of the african slave-trade to the united states of america, 1638–1870, at 30 (1970) (“reverend richard saltonstall, who in 1645 denounced not only the murder of certain black slaves who were said to have been brought to new england from africa, but also ‘the act of stealing negers, or of taking them by force . . . on the sabbath day,’ as being ‘contrary to the law of god and of this country.’”). 4 see elazar barkan, the guilt of nations: restitution and negotiating historical injustices 284 (2000) (“[s]lavery has remained the most glaring example of an unaddressed historical injustice in the united states.”). 150 the trans-atlantc slave trade vol. 3:2 issue of international reparations for the trans-atlantic slave trade requires a multi-dimensional legal approach. the history of common law jurisprudence, both internationally and domestically, significantly relies on two basic concepts: for every crime committed, a punishment is meted, and that for each successful civil cause of action, compensation is awarded.5 based on this premise, the trans-atlantic slave trade, an international criminal offense, warrants legal restitution. additionally, this article concentrates on the vestiges and effects of the trans-atlantic slave trade on its displaced descendants, as well as legal causes of action, applicable international statutes, and other legal arguments warranting international reparations.6 part i of this article briefly introduces the trans-atlantic slave trade as a crime against humanity and the need for international redress. part ii analyzes the legal concept of reparations in modern history. a few pivotal movements resulting in restitution for historical injustices are: the civil war era and declared awards of reparations to newly freed slaves, both those who fought in battle alongside white soldiers in the civil war, and those who were in forced bondage on the plantations of their captors; native americans for loss of land and deprivation of civil liberties; the jews of the holocaust and its survivors; japanese americans who survived the internment camps in america; and the waikato people of new zealand. each of these movements began with human suffering and ended with individuals seeking restitution through civil suits, resulting in a heightened momentum which garnered local, national and, in some instances, international attention. as a result, some national governments began to officially acknowledge aspects of their undisputed history and create funds to provide restitution for these historic wrongs. these historic instances of restitution provide ample legal precedent supporting the idea that survivors of crimes against humanity and their descendants can petition their respective governments as well as the international community for redress. part ii then addresses the difficulty of attaching a monetary value to human life and human suffering. many people believe that financial compensation can never be sufficient restitution for inhumane treatment and long-term injustices. however, restitution does provide some level of relief to those segments of the population who have been affected by these historical atrocities. restitution, whether financial, social, or related to infrastructure, can foment a societal discourse of inclusiveness and fairness. 5 see dinah shelton, the world of atonement reparations for historical injustices, 1 miskolc j. of int’l l. 259, 275 (2004) (“[r]eparations are owed for every breach of an international obligation due to an act or omission attributable to the state.”). 6 verdun, supra note 1, at 639 (“displaced descendants of the slave trade diaspora include black/native americans, afro-caribbeans in european nations, jamaicans and other african descendants in the west indies, native americans, latinos, chicanos, and mexicans. the author uses this identification because many black/native americans historically identity solely with africans, when it is documented that so-called “african-americans” are of native american, african and european bloodlines. at the end of the civil war, many were optimistic about the future of african americans. perhaps the most idyllic prophecy came from a great orator in 1866: ‘my strongest conviction as to the future of the negro therefore is, that he will not be expatriated nor annihilated, nor will he forever remain a separate and distinct race from the people around him, but that he will be absorbed, assimilated, and will only appear finally, as the phonecians now appear on the shores of the shannon, in the features of a blended race.’”). a majority of the people of the west indies are descendants of black africans who were brought to the islands as slaves to work on sugar cane plantations. most of the rest are of mixed black and european ancestry, or have british, dutch, french, portuguese or spanish ancestry. the focus on these displaced descendants of african slaves is due to the fact that the enslaved africans and their descendants lost nearly every aspect of their origin—from their homeland, their language, and their original culture, to their history. this loss forced the creation of new sub-cultures that became a new source of strength and identity, but also imposed a legacy of hardship and racial discrimination under which they continue to suffer. id. (discussing the debate over how slavery affected the formation of modern african american culture); id. at 600 (noting the development of a unique african american consciousness). see also a.c. res. 270, 212th leg. (n.j. 2007), available at http://www.njleg.state.nj.us/2006/bills/acr/270_i1.pdf. 2013 columbia journal of race and law 151 151 151 151 151 151 151 part ii finally provides a brief analysis of discrimination against minorities in the countries that were the primary proponents and beneficiaries of the trans-atlantic slave trade. this includes discrimination in education, employment, housing and the criminal justice system. this section supports the proposition that the trans-atlantic slave trade and its legacy profoundly impacted survivors and their progeny in nearly every facet of life. part iii considers the valid legal theories available to potential claimants who seek redress for the offenses of the trans-atlantic slave trade, as well as the legal obstacles they might face in these cases. this section discusses the notion of an international tribunal to adjudicate the crimes against humanity—de jure slavery and racial discrimination—stemming from the trans-atlantic slave trade. the section concludes that the proposed tribunal is the best integrated forum for these legal issues. this is because the trans-atlantic slave trade was an intricate enterprise which involved several countries, and current civil legal systems, including the american federal courts, are insufficient to adjudicate such claims, which include issues of the jurisdiction of nation-states. this section also notes that potential litigants for restitution must overcome universal legal principles such as retroactivity and statutes of limitations in order to file viable claims. part iii also presents legal strategies that prospective claimants may use in the proposed tribunal to achieve a favorable outcome. lastly, this section discusses arguments that individuals and governments might present to oppose reparations for the trans-atlantic slave trade. part iv explores additional legal considerations, such as attaining jurisdiction of those nationstates that committed these crimes against humanity. this section also analyzes the difficulty of establishing the identities of the recipients of damages, the identities of those who have a legal duty to compensate the victims’ descendants, and the difficulty of ascertaining an objective standard for an impartial international criminal tribunal. part v ultimately concludes that, despite the obstacles that remain, the trans-atlantic slave trade, slavery and the legacy of racial discrimination warrant restitution, and the international community has the ability to evolve and provide redress for these historical injustices. ii. legal history of reparations the historic role of reparations in international affairs demonstrates that it has not become an obsolete legal doctrine. lord gifford of the house of lords of great britain once stated, “the concept that reparations are payable where a crime against humanity has been committed by one people against another is well established in international law and practice.”7 it is this principle that is the basis for descendants’ of the african diaspora’s legal quest for reparations for the crimes against humanity that advanced the trans-atlantic slave trade and slavery. a. legal concept of reparations & trends in the 19th–20th centuries 7 john thornton, africa and africans and the making of the atlantic world, 1400–1800, at 378 (1998). historians and sociologists study the trans-atlantic slave trade primarily as a sequence of past events that occurred as nation-states abolished the institution. poets and laymen mocked those who traded in slaves for pecuniary gain, and momentum built over centuries in individual nations to abolish it, leading to an international trend. however, sociologists rarely simultaneously analyze the slave trade and reparations in a multi-dimensional manner to include social implication, financial motivations and legal redress. see id. at 1–13. 152 the trans-atlantc slave trade vol. 3:2 “reparations” is defined as a type of compensation used to redress an injury or some other type of injustice.8 based on this premise, reparations may be an award of financial damages to the aggrieved party, punishment for the perpetrator of the heinous acts, or both. the term “restitution” is a broader concept, in which the compensation actually restores the victim to the original state in which he or she was before the injury or offense occurred.9 these legal terms will be used interchangeably in light of this article’s focus on compensating both the victims of egregious crimes against humanity and their descendants and the prevailing notion that no amount of money can ever replace human life or alter the years lost10 to the legal implementation of those crimes and their current effects.11 1. native americans in the united states in addition to black americans, native americans endured crimes against humanity committed by western powers. the acts perpetrated by westerners include, but are not limited to: the exploitation of native americans’ generosity,12 their successful endeavors to commit genocide against the indigenous population,13 the enslavement of native americans, and the seizure of native american land in the name of freedom from the british.14 native americans were also victims of the trans-atlantic slave trade, of which the primary advocates were portuguese and spanish explorers during the initial stages of the trade’s development in the fifteenth and sixteenth centuries.15 however, the europeans discovered 8 see david c. gray, a no-excuse approach to transitional justice: reparations as tools of extraordinary justice, 87 wash. u. l. rev. 1043, 1043 (2010) (“reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process.”); see also linda m. keller, seeking justice at the international criminal court: victims’ reparations, 29 t. jefferson l. rev. 189, 189 (2007) (“according to the icc, reparations are aimed at ‘relieving the suffering and affording justice to victims not only through the conviction of the perpetrator by this court, but also by attempting to redress the consequences of genocide, crimes against humanity and war crimes . . . .’”) (alteration in original). 9 black’s law dictionary 910 (6th ed. 1991) (“an equitable remedy under which a person is restored to his or her original position prior to loss or injury or placed in the position he or she would have been had the breach not occurred. act of restoring anything to its rightful owner, the act of making good or giving equivalent for any loss, damage or injury; an indemnification.”). 10 see f. michael higginbotham, a dream revived: the rise of the black reparations movement, 58 n.y.u. ann. surv. am. l. 447, 454 (2003) (citing another author’s suggestion that “nothing can truly return the victim to the status quo”). 11 see barkan, supra note 4, at 284 (“the moral argument is that although the past cannot be undone, and although restitution can be directed only at descendants of the victims, the effect of this historical injustice constitutes a continuing violation. therefore, the descendants of slaves are themselves victims.”). 12 see carl waldman, encyclopedia of native american tribes 304 (3d ed. 2006) (“the hostilities that caused their departure from north carolina—the tuscarora war-were especially unnecessary because the tuscarora had been friendly to the english colonists. they not only had provided them with knowledge about wilderness survival and with food, but also had helped them in their conflicts with other tribes. yet, settlers took their best farmlands; traders cheated them and slavers kidnapped them to ship them to the caribbean or to europe.”). id. at 310 (“yet the colonists abused their friendship with the indians time and again. they wanted land for farming and tried to trick indians into signing it away for little payment or no payment at all. one method they used was to get tribal representatives drunk before negotiating with them. another was to bribe one indian and make him an honorary chief, then have him sign away tribal lands.”). 13 see shelton, supra note 5, at 272. 14 the dregs and vagabonds of primarily great britain society left england in pursuit of freedom, justice and equality. the europeans ironically justified their theories of freedom and equality as solely applied to other whites and europeans, leaving them apt to murder and conquer people of color, especially in the western hemisphere. 15 thomas, supra note 3, at 155 (“these english voyages greatly disturbed the portuguese; in 1555 a special ambassador, lope da sousa, was dispatched by a worried and elderly king joão iii to remind queen mary of the papal 2013 columbia journal of race and law 153 153 153 153 153 153 153 that africans possessed greater strength and endurance than native americans;16 thus, the explorers turned to this new reliable stream of forced labor from africa to quench their insatiable thirst to enslave and conquer indigenous peoples.17 in the end, the native americans’ slaughter and enslavement, in comparison to that of africans, was more temporary. the most apparent loss to native americans was their land, as they were now guests in a country that they had called home for generations. consequently, the united states, then known as the union, began to “negotiate” a series of treaties with the native americans concerning land concessions. these treaties apparently did nothing more than solidify the taking of native american land as well as confine native americans to reservations. the irony of these treaties was that they did not give any substantial restitution to the native americans.18 the treaties declared the native americans to be contained in specific segments of the united states,19 in a country that was originally their own. grants of portuguese monopoly in africa . . . .”). see muhammad, supra note 2, at 909 (discussing treaties and contracts among slave trading nations). 16 thomas, supra note 3, at 139. 17 id. at 92–93. 18 see treaty with the cherokee, 1791, in indian affairs: laws & treaties, vol. ii art. 4 (charles j. kappler ed., 1904) (“and in order to extinguish forever all claims of the cherokee nation, or any part thereof, to any of the land lying to the right of the line above described. beginning as aforesaid at the currahee mountain, it is hereby agreed, that in addition to the consideration heretofore made for the said land, the united states will cause certain valuable goods, to be immediately delivered to the undersigned chiefs and warriors, for the use of their nation; and the said united states will also cause the sum of one thousand dollars to be paid annually to the said cherokee nation. and the undersigned chiefs and warriors, do hereby for themselves and the whole cherokee nation, their heirs and descendants, for the considerations above-mentioned, release, quit-claim, relinquish and cede, all the land to the right of the line described, and beginning as aforesaid.”); treaty with the cherokee, 1794, id. at vol. ii art. 3 (“the united states, to evince their justice by amply compensating the said cherokee nation of indians for all relinquishments of land made either by the treaty of hopewell upon the keowee river, concluded on the twenty-eighth of november one thousand seven hundred and eighty-five, or the aforesaid treaty made upon holston river, on the second of july, one thousand seven hundred and ninety-one, do hereby stipulate, in lieu of all former slims to be paid annually to furnish the cherokee indians with goods suitable for their use, to the amount of five thousand dollars yearly.”); treaty with the potawatami, 1828, id. at art. ii: in consideration of the cessions aforesaid, there shall be paid to the said tribe an additional permanent annuity of two thousand dollars; and also an additional annuity of one thousand dollars, for the term of twenty years; goods, to the value of thirty thousand dollars shall be given to the said tribe, either immediately after signing this treaty, or as soon thereafter as they can be procured; an additional sum of ten thousand dollars, in goods, and another of five thousand dollars, in specie, shall be paid to them in the year 1829. the sum of seven thousand five hundred dollars shall be expended for the said tribe, under the direction of the president of the united states, in clearing and fencing land, erecting houses, purchasing domestic animals and farming utensils, and in the support of labourers to work for them. two thousand wounds of tobacco, fifteen hundred weight of iron, and three hundred and fifty pounds of steel, shall be annually delivered to them. one thousand dollars per annum shall be applied for the purposes of education, as long as congress may think the appropriation may be useful. one hundred dollars, in goods, shall be annually paid to to-pen-ibe-the; principal chief of the said tribe, during his natural life. the blacksmith, stipulated by the treaty of chicago to be provided for the term of fifteen years, shall be permanently supported by the united states. three labourers shall be provided, during four months of the year, for ten years, to work for the band living upon the reservation south of the st. joseph. 19 see treaty with the six nations, 1784, id. at art. iii; treaty with the chickasaw, 1786, id. at art. iii; treaty with the shawnee, 1786, id.at art. vi; treaty with the creeks, 1790, id. at art. iv; treaty with the cherokee, 1791, id. at arts. iii, iv: the cherokee nation shall deliver to the governor of the territory of the united states of america, south of the river ohio, on or before the first day of april next, at this place, all persons who are now prisoners, captured by them from any part of the united states: and the united states 154 the trans-atlantc slave trade vol. 3:2 during the early nineteenth century following the treaties and in an attempt to maintain amicable relations with native american nations, the federal government instituted a uniform method of channeling additional financial compensation to the indian tribes under the authority of the bureau of indian affairs. on march 11, 1824, the federal government’s bureau of indian affairs established the “indian” trust funds. 20 these trust funds were to aid in indian reservation management and to support social programs that benefited native americans.21 however, it has been alleged that the u.s. government has not appropriately fulfilled its obligations concerning the funds. for example, on june 10, 1996, the native american rights fund (narf) filed a class action lawsuit against the government.22 more specifically, the complainants alleged that the united states government, as trustee of the funds, through its agents and officers, continuously mismanaged funds by abusing its access to the individual indian monies and by failing to implement safeguards to curtail such breach of fiduciary duty.23 this alleged failure included the lack of adequate record keeping of expenses associated with maintaining the funds as well as actual disbursement of funds. on december 11, 2012, the court ordered payment in the amount of $1,000 to the historical accounting class and other provisions regarding the eligibility of the trust administration class to properly distribute the funds.24 this is a prime example that, although the government may grant monetary restitution as a way to begin addressing historical injustices, until it shall on or before the same day, and at the same place, restore to the cherokees, all the prisoners now in captivity, which the citizens of the united states have captured from them. the boundary between the citizens of the united states and the cherokee nation, is and shall be as follows: beginning at the top of the currahee mountain, where the creek line passes it; thence a direct line to tugelo river; thence northeast to the occunna mountain, and over the same along the south-carolina indian boundary to the north-carolina boundary; thence north to a point from which a line is to be extended to the river clinch, that shall pass the holston at the ridge which divides the waters running into little river from those running into the tennessee; thence up the river clinch to campbell's line, and along the same to the top of cumberland mountain; thence a direct line to the cumberland river where the kentucky road crosses it; thence down the cumberland river to a point from which a south west line will strike the ridge which divides the waters of cumberland from those of duck river, forty miles above nashville; thence down the said ridge to a point from whence a south west line will strike the mouth of duck river. and in order to preclude forever all disputes relative to the said boundary, the same shall be ascertained, and marked plainly by three persons appointed on the part of the united states, and three cherokees on the part of their nation. and in order to extinguish forever all claims of the cherokee nation, or any part thereof, to any of the land lying to the right of the line above described. beginning as aforesaid at the currahee mountain, it is hereby agreed, that in addition to the consideration heretofore made for the said land, the united states will cause certain valuable goods, to be immediately delivered to the undersigned chiefs and warriors, for the use of their nation; and the said united states will also cause the sum of one thousand dollars to be paid annually to the said cherokee nation. and the undersigned chiefs and warriors, do hereby for themselves and the whole cherokee nation, their heirs and descendants, for the considerations above-mentioned, release, quit-claim, relinquish and cede, all the land to the right of the line described, and beginning as aforesaid. see also treaty with the potawatami, 1828, id. at art. i. 20 see national archives and records administration, letters sent, 1800–24. letters sent by the revenue office, department of the treasury, relating to the treasury business of the war department, 1794–96. letters received, 1800–23. microfilm publications: m15, m74, m271. 21 see preliminary inventory of the records of the bureau of indian affairs, vols. i & ii, pi 163 (edward e. hill, comp., 1965), supp., in national archives microfiche edition of preliminary inventories. 22 compl. to compel performance of trust obligations, cobell v. babbitt, 91 f. supp. 2d 1 (d.d.c. 1999). for subsequent history of the case, see shelton, supra note 5, at 267–68 (“in march 2003, the us supreme court upheld a 1999 federal court decision awarding damages to native americans for trust fund mismanagement by the us department of the interior and treasury.”). 23 id. 24 see cobell v. salazar, no. 96-cv-01285 (d.d.c. dec. 11, 2012). 2013 columbia journal of race and law 155 155 155 155 155 155 155 wholeheartedly addresses the underlying issues of exploitation of vulnerable populations, institutionalized discrimination, and racial inequality, financial compensation remains an insufficient legal remedy. 2. black americans and the civil war one of the earliest historical examples of an award of reparations has become known as the “forty acres and a mule” edict. during the civil war, president abraham lincoln declared that african and native americans were free from slavery through the revered emancipation proclamation.25 in january 1865, the final year of the civil war, union general william tecumseh sherman gave special field order no. 15, which promised freed slaves along the coast of south carolina, georgia, and florida “forty acres and a mule.” 26 however, president andrew johnson subsequently rescinded the order.27 on march 11, 1867, representative thaddeus stevens of pennsylvania introduced the reparations bill into congress, declaring: and be it further enacted. that out of the lands thus seized and confiscated the slaves who have been liberated by the operations of the war and the amendment to the constitution or otherwise, who resided in said “confederate states” on the 4th day of march, a.d. 1861, or since, shall have distributed to them as follows, namely: to each male person who is the head of a family, forty acres; to each adult male, whether the head of a family or not, forty acres, to each widow who is the head of a family, forty acres—to be held by them in fee-simple, but to be inalienable for the next ten years after they become seized thereof.28 this bill, though ultimately unsuccessful, may be considered one of the earliest landmark legal decisions by a western, governmental body to initiate the grant of reparations to expiate slavery and slave trading. thereafter, the task of reconstruction for both the union and the newly-liberated black americans began. in 1865, the federal government established the bureau of refugees, freedmen, and abandoned lands,29 later to become known as the freedmen’s bureau,30 as a governmental institution designed to aid freed blacks in transitioning into society. one of its many tasks was to parcel land out to former slaves. this governmental organization also served the purpose of helping impecunious white americans, likely descendants from indentured servants, with the basics of maintaining a reasonable 25 the emancipation proclamation was announced in january 1, 1863. however, in reality this edict did not free black/native americans but led to a new form of indentured slavery. slaves were freed with no land, no culture, and no capital, resulting in renewed dependency on the jobs from which they were just freed, such as sharecropping, maid service, and chauffeuring for their former slavemasters. the civil war did not end until 1865, and the union did not completely eradicate municipal slavery in black letter law until the 13th amendment was officially ratified as part of the u.s. constitution in 1865. 26 freedmen’s bureau act, ch. 20, 14 stat. 173 (1866) (“and be it further enacted, that the commissioner, under the direction of the president, shall have authority to set apart, for the use of loyal refugees and freedmen, such tracts of land within the insurrectionary states as shall have been abandoned, or to which the united states shall have acquired title by confiscation or sale, or otherwise, and to every male citizen, whether refugee or freedman, as aforesaid, there shall be assigned not more than forty acres of such land . . . .”) 27 see raymond a. winbush, should america pay?: slavery and the raging debate on reparations 15 (2003). see also barkan, supra note 4, at 284. 28 h.r. 29, 40th cong. § 4 (1867). 29 see generally field office records of the bureau of refugees, freedmen, and abandoned lands (the freedmen’s bureau), available at http://www.archives.gov/atlanta/finding-aids/freedmens-bureau.pdf [hereinafter field office records]. 30 see shelton, supra note 5, at 268. 156 the trans-atlantc slave trade vol. 3:2 standard of living and also transitioning into the society of the budding union.31 however, this aid to the freedmen lasted only a few years; land that was previously distributed was confiscated by the federal government.32 indeed, the national government all but abandoned the freed slaves and the united states’ new budding notion of equality. as a result, the freedmen were left to fend for themselves with no economic support, little education, and no land.33 3. jewish people and the holocaust spread across the atlantic ocean from the united states to europe, the jews of the holocaust diaspora were also victims of racial hatred promoted by a government regime that committed crimes against humanity. jews, many of whom were of german and polish descent, were kidnapped from their homes, sent to concentration camps and, eventually, killed in extermination chambers.34 these jews were not only used for their labor but were also robbed of most of their personal property.35 the germans, energized by the rhetoric of adolf hitler, humiliated the jews by, among other things, forcing them to wear the star of david36 and to cut grass with their teeth.37 eventually, jewish people were simply deposited in stations and gas chambers for mass extermination.38 after world war ii concluded, the call for restitution steadily became a forefront issue for surviving jews. many of those who had escaped, were expelled, or were forced to migrate to safety from german oppression39 were now without a home, property, money, or an adequate standard of living. in the years that followed, the jews’ demands for compensation increased. after much social and political tumult,40 companies that were implicated as being a part of or obtaining significant profits from the torture and labor of jews agreed to set up funds or other contractual obligations to compensate jews.41 as a result of lengthy negotiations, private corporations that had financially invested in and benefitted from the genocide of jews paid a monetary settlement.42 31 see field office records, supra note 29. 32 see shelton, supra note 5, at 268. 33 see joe r. feagin, documenting the costs of slavery, segregation, and contemporary racism: why reparations are in order for african americans, 20 harv. blackletter l.j. 49, 55 (2004) (“recall that after the civil war some congressional proposals were aimed at giving those recently freed arable land—the famous forty acres and a mule. yet most black families never got any access to the land promised, and the inequality in wealth-generating agricultural land has been a major cause of persisting racial inequality.”). see also daisy g. collins, the united states owes reparations to its black citizens, 16 how. l.j. 82, 92 (1970) (“the unequal economic position of the average black citizen . . . is an incident of slavery because the freedmen generally started out with no property and experienced invidious discrimination in trying to obtain it.”); see also lord gifford debate, supra note 2. 34 see laurence rees, the nazis: a warning from history 203, 206 (1997) (describing the process of taking children from their homes and the establishment of the concentration and extermination camps). 35 see barkan, supra note 4, at 121, 153–56. 36 see rees, supra note 34, at 198. 37 id. 38 id. at 206 (“the men, women and children were harried down a path (the germans called it ‘the path to heaven’) less than a hundred metres to the gas chambers where they were murdered. once dead, their bodies were thrown into pits next to the gas chambers.”). 39 id. at 198. 40 id. at 206. 41 barkan, supra note 4, at 24. 42 id. 2013 columbia journal of race and law 157 157 157 157 157 157 157 the intensity of support for these demands manifested itself through various commissions, committees, and other organizations developed by jews.43 many private companies, headquartered or otherwise doing business in countries that either considered themselves neutral or complied with sanctions against germany, were also involved in the historical injustice toward the jews.44 for instance, switzerland, known for its purported neutrality, hosted the league of nations, an international entity with limited military strength but which nevertheless issued sanctions against germany after world war i. however, major swiss banks refused to return monies that rightfully belonged to jews, allowed funds that belonged to jews but were confiscated by german soldiers to be deposited into swiss bank accounts, and ultimately financed a regime and private corporations that discriminated against and mass exterminated a great number of jews. jewish commissions and committees began negotiating with the representative of the swiss banks and in 1996 entered into a memorandum of understanding.45 thereafter, in 1998 the swiss banks and these committees entered into a global settlement to redress the atrocities of the holocaust.46 in addition, the german government signed the slave fund deal, one of the most pivotal victories in the history of reparations.47 in 2000, germany established a multi-billion dollar fund to compensate survivors of nazi-era slave labor.48 the german government did so in response to united states pressure and in order to curtail private lawsuits filed by direct survivors and next of kin of slave laborers against the government and private sector. to determine the recipients of the reparations and to manage the fund, germany, poland, the czech republic, ukraine and other nation-states of the former soviet union formed commissions and foundations.49 germany established a deadline for filing claims 43 id. (“jewish organizations managed to formulate their claims in the language of nationalism and translate them into a legal framework.”). see also memorandum of understanding between the world jewish restitution organization and the world jewish congress representing also the jewish agency and allied organizations and the swiss bankers association (may 2, 1996), available at http://www.swissbankclaims.com/documents/doc_1_memo_of.pdf (detailing the various mechanisms for reimbursement of jewish people by swiss banks) [hereinafter memorandum of understanding]. 44 barkan, supra note 4, at 21–22. 45 memorandum of understanding, supra note 43. 46 see credit suisse group, annual report 1998/1999, at 30–31, available at https://www.creditsuisse.com/investors/doc/csg_ar98_p1_en.pdf. 47 see germany signs historic slave fund deal, daily news (july 18, 2000 12:00 am), http://www.hurriyetdailynews.com/default.aspx?pageid=438&n=germany-signs-historic-slave-fund-deal-2000-07-18 (“germany signed a historic deal on monday to pay 10 billion marks ($4.8 billion) to nearly a million nazi slaves and forced labourers in what is likely to be the last great payout for the crimes of third reich. representatives from germany, the united states, eastern europe and israel signed the agreement along with a battery of high-power u.s. attorneys, whose threats of lawsuits against german companies prompted the deal.”). 48 id. 49 see foundation for polish-german reconciliation, http://www.fpnp.pl/fundacja/ofpnp_en.php (last visited apr. 7, 2013) [hereinafter foundation polish-german reconciliation] (“since the very beginning of our existence, we have paid financial aid of more than 4.7 billion pln (1.3 billion euro) to over 700.000 victims. the financial resources for these aids were obtained from various institutions from abroad—mostly from the federal foundation ‘memory, responsibility and future,’ the austrian fund for ‘reconciliation, peace and cooperation,’ from the fund known as the london fund of plundered gold for survivors of the holocaust and from the swiss fund for the benefit of the victims of the holocaust/shoa.”); closed compensation programs, program for former slave and forced laborers, claims conference: the conference on jewish material claims against germany, http://www.claimscon.org/index.asp?url=compensation/closed_programs (last visited apr. 7, 2013) [hereinafter claims conference] (“the claims conference program for former slave and forced laborers began in 2000, after german government and industry agreed to a dm 10 billion fund to compensate surviving former laborers under the nazis. payments were also made from the swiss banks settlement. the payments were the culmination of years of effort to compel the governments and businesses of germany and switzerland to acknowledge their use of slave and forced labor during world war ii, and the benefits they derived from the victims’ labor.”); understanding and reconciliation, ukranian nat’l found., (may 8, 2004, 8:48 pm), http://unf.kiev.ua/main.php?lang=de (“ukrainian fund for mutual 158 the trans-atlantc slave trade vol. 3:2 only a few years after the official establishment of the fund due to the various commissions working in conjunction with their respective governments and negotiating with germany.50 as recently as 2011, the german government also established a pension fund to recompense the survivors of the holocaust.51 austria has also implemented a settlement to financially compensate the victims of the holocaust.52 4. japanese internment in the united states another legal landmark in the history of reparations involved the united states, following its conflicts with japan during world war ii. after japan bombed pearl harbor, the u.s. government gathered all known residents of the united states who were of japanese descent and confined them in internment camps.53 however, not all americans of japanese descent adhered to executive order 9066,54 as was the case with fred korematsu, a japanese american. in korematsu v. united states, korematsu was found guilty of disobeying a u.s. military order prohibiting those of japanese descent in a military area located in california. although the supreme court applied strict scrutiny since the exclusion order was based on race, it upheld the conviction based on the premise of national security.55 several decades passed before the supreme court overturned korematsu’s conviction at the behest of former president james earl carter, based on evidence discovered in the federal bureau of investigation’s archives. these documents revealed that japanese americans were not a threat to the ongoing war and that this information was never disclosed to the supreme court.56 after attorneys became interested in the case, it was reopened. this resulted in the district court for the northern district of california vacating the conviction based on governmental malfeasance.57 based on executive order 9066, these individuals were deprived of their liberty, in the name of national security, as a result of their racial identification and purported loyalty to the united states’ enemies.58 ironically, a majority of japanese victims greatly opposed the concept of reparations as understanding and reconciliation and russian fund for mutual understanding and reconciliation to pay second tranche of compensation to former nazi slave labourers before end of this year. gunter saathoff, the chairman of the german fund for memorial, responsibility and the future, announced this. the ukrainian fund for mutual understanding and reconciliation has compiled a list of 800,000 people considered to be victims of nazi.”); financial payments partners, belarusian republican found., http://www.brfvp.com/en/?section_id=271&cat=1 (last visited apr. 8, 2013) (“as one of the partner organizations of the foundation ‘remembrance, responsibility and future,’ iom was designated to make financial compensation available to former forced labourers and other victims of the nazi regime.” ); russian found. for understanding and reconciliation, http://translate.google.com/translate?depth=1&hl=en&rurl=translate.google.com&sl=ru&tl=en&u=http://www.fond vp.ru/ (last visited apr. 10, 2013). 50 see claims conference, supra note 49. 51 16,000 holocaust victims to get german pensions, world news, http://worldnews.nbcnews.com/_news/2011/12/05/9235187-16000-holocaust-victims-to-get-german-pensions (last visited apr. 7, 2013). 52 see alexandra foederl-schmid, austria signs landmark slave labour deal, cnn (oct. 24, 2000, 1:18 pm), http://archives.cnn.com/2000/world/europe/10/24/austria.nazi (“the agreement includes provisions that will protect austrian companies from future lawsuits in the slave labour case and will allow preparations for the handover of payments to begin swiftly. compensation for the 150,000 slave labourers—mostly from central and eastern european states—will be made from a special reconciliation fund totaling six billion schilling ($415 million).”). 53 barkan, supra note 4, at 31–32 (“[t]he internment between 1942 and 1946 of 120,000 individuals, twothirds of them american citizens, did not receive a great deal of attention.”). 54 see exec. order no. 9066, 7 fed. reg. 1407 (feb. 19, 1942). 55 korematsu v. united states, 323 u.s. 214, 216, 224 (1944). 56 korematsu v. united states, 584 f. supp. 1406, 1416–18 (n.d. cal. 1984). 57 id. at 1419–20. 58 korematsu, 323 u.s. at 214. 2013 columbia journal of race and law 159 159 159 159 159 159 159 compensation for their internment, likely due to the social and political implications of such requests.59 but once the jews of the holocaust diaspora started the trend of restitution for past crimes against humanity and civil rights violations, it was appropriate for the japanese to do the same.60 in 1948, after much social pressure, the united states government enacted the japanese american evacuation claims act,61 which awarded $38,000,000 in restitution to japanese americans. four decades later, congress passed the civil liberties act.62 this act included a congressional apology as well as an acknowledgment that the government’s unjust confinement of japanese americans had been based on racism.63 not only was an apology officially made in the act, but also years later president george h.w. bush, sr., and his successor president william jefferson clinton, jr., made separate, formal written apologies recognizing the unfair treatment and internment of the japanese americans.64 however, the paradox of jurisprudence again demonstrates that historical injustices can be retroactively addressed but cannot be fully restituted. yet, for some peculiar reason, in america and abroad, there is not one recorded instance in which a european country or the united states has ever offered an apology to the descendants of the slave trade.65 different states’ legislatures today disagree on whether they should make official apologies for their participation in the trade. some state government representatives have decided, despite societal opposition, to introduce official state-level resolutions or bills that declare their governments’ regret for u.s. slavery.66 but these limited movements are far from achieving full national support. 59 see barkan, supra note 4, at 34 (“most viewed it as a waste of time and energy since they believed that restitution was impossible and that the campaign would at best go nowhere or at worst turn the nation against them.”). 60 see generally id. at 34–35 (discussing the debate over comparing the japanese and jewish experiences during world war ii). 61 japanese american evacuation claims act, pub. l. 80-886, ch. 814, 62 stat. 1231 (codified as amended at 50 u.s.c. app. § 1981 (1948)). 62 barkan, supra note 4, at 30 (noting that the civil liberties act was signed into law on august 10, 1988, allowing the u.s. government to compensate japanese americans who had been interned during world war ii); see also 63 civil liberties act of 1988 pub. l. no. 100-383, 102 stat. 903 (codified at 50 app. u.s.c. §§ 1989b–1989b9). 64 see letter from president george h.w. bush (nov. 21, 1989), available at http://www.learner.org/courses/amerhistory/interactives/sources/e7/e1/sources/5496.php; letter from president william jefferson clinton (oct. 1, 1993), available at http://35449409.nhd.weebly.com/presidential-letters-ofapology.html. 65 see h.r. res 194, 110th cong. (2008) (enacted) (stating an official congressional apology for slavery); see also blair “sorrow” over slave trade, bbc news, http://news.bbc.co.uk/1/hi/uk_politics/6185176.stm (last updated nov. 27, 2006) (discussing debate in the united kingdom over issuing an apology for participation in the slave trade). 66 see h.r. res. ao1300, 2009–2010 reg. sess. (n.y. 2009), available at http://assembly.state.ny.us/leg/?default_fld=&bn=a01300&term=2009&summary=y&actions=y; h.r. res. 1011, 2007–2008 reg. sess. (ga. 2008), available at http://www.legis.ga.gov/legislation/en-us/display/20072008/hr/1011; h.r.j. res. 321, 2007 leg. (ala. 2007), available at http://blog.al.com/bn/2007/04/sjr54_expressing_profound_regr.html; s.j. res. 6, 423rd gen. assemb. (md. 2007), available at http://mgaleg.maryland.gov/2007rs/chapters_noln/jr_1_sj0006e.pdf; h.r. con. res. 26, 94th gen. assemb., 1st reg. sess. (mo. 2007), available at http://www.moga.mo.gov; h.r.j. res. 1311, 2007 gen. assemb., reg. sess. (n.c. 2007), available at http://www.ncleg.net/sessions/2007/bills/house/pdf/h1311v0.pdf (but passed through the senate, see s.j. res. 1557, 2007 gen assemb. (n.c. 2007), available at http://www.ncleg.net/sessions/2007/bills/senate/html/s1557v2.html; a.c. res. 270, 212th leg. (n.j. 2007), available at http://www.njleg.state.nj.us/2006/bills/acr/270_i1.pdf; h.d.j. res. 728, 2007 leg., reg. sess. (va. 2007), available at http://leg1.state.va.us/cgi-bin/legp504.exe?071+ful+hj728h2+pdf. 160 the trans-atlantc slave trade vol. 3:2 by their omissions and reluctant responses, western nations continue to reinforce the idea that those of african descent are members of the lowest caste worldwide, and that any injustice they endured is irrelevant to mainstream society.67 5. new zealand and indigenous persons the government of new zealand is another entity that has paid reparations for historical wrongs committed against indigenous peoples. in 1863, new zealand initially made an agreement with the waikato people concerning land accession. the new zealand government then declared the waikato people to blame for acts promoting anarchy. as a result, new zealand officials invaded and seized waikato lands. nearly a century and a half later, in 1995, the crown of new zealand announced an official apology,68 a restoration of lost lands69 and financial compensation through the waikato raupatu claims settlement act.70 6. south african apartheid more recently, former south african archbishop desmond tutu instituted a suit against international corporations who had conducted business with, and otherwise profited from, their association with the apartheid-era south african government.71 desmond tutu has cited at least 22,000 south africans who are owed reparations; however, the case is still pending in new york federal court.72 as of the date of this publication, the south african government has worked with the truth and reconciliation committee to grant monetary reparations to victims of apartheid-era human rights violations,73 though the commission has appealed the current amount designated for each individual, claiming that the amounts do not reflect the true extent of their suffering. tutu has also petitioned the government to impose a wealth tax on white south africans who benefitted from the apartheid policies as a form of restitution for black south africans who were disenfranchised as a result of the policies.74 as previously noted, the corporate proponents of unjust regimes were typically based throughout the world. in this case, those who suffered were concentrated in south africa with their government as agent of apartheid policies and with aid to the government coming from international companies. thus, a federal court recognized the legitimacy of petitioning the judiciary for restitution for human rights violations by corporate entities as well as public institutions. 67 see winbush, supra note 27, at xxi. 68 part 6(1) of the waikato raupatu claims settlement act 1995 (n.z.) 69 id. at part 6(4). 70 id. 71 see tutu backs claims over apartheid, bbc news (feb. 1, 2004, 9:06 pm), http://news.bbc.co.uk/1/hi/world/africa/3450081.stm. 72 see khulumani v. barclay nat’l bank ltd., 504 f.3d 254 (2d cir. 2007), aff’d for lack of quorum sub nom. am. isuzu motors, inc. v. ntsebeza, 553 u.s. 1028 (2008). see also anc welcomes trc proposals for reparations, s. african press ass’n, oct. 23, 1997, http://www.justice.gov.za/trc/media/1997/9710/s971023c.htm (“unveiling the commission’s rehabilitation and reparation policy proposals at a news conference in cape town on thursday, chairman archbishop desmond tutu said people judged to have suffered human rights violations under apartheid should receive a minimum reparation payment of r17000 annually for six years. he said that, if accepted, this would cost about r3 billion to implement, and a projected 22000 victims would benefit.”). 73 see south africa offers reparations to apartheid victims, ethics newsline, apr. 21, 2003, http://www.globalethics.org/newsline/2003/04/21/south-africa-offers-reparations-to-apartheid-victims/ (“thousands of people victimized by decades of south african apartheid will be given slightly more than $3,800 each in a one-time reparations payment funded by the government, president thabo mbeki announced last week.”). 74 see constitutional law expert backs tutu on apartheid tax, times live, (aug. 15, 2011, 2:54 pm), http://www.timeslive.co.za/local/2011/08/15/constitutional-law-expert-backs-tutu-on-apartheid-tax. 2013 columbia journal of race and law 161 161 161 161 161 161 161 7. summary of trends in restitution for historical injustices the native americans of the early united states, black americans of the african diaspora, jews of the european diaspora, those of japanese descent in the american west, the waikato indigenous peoples of new zealand, and the black south africans are all examples of historical injustices supported by governmental regimes that were provided financial benefits by private corporations. in each of these incidents either persons who directly suffered or their descendants decided to petition their government and use the existing legal infrastructure to obtain restitution for these past crimes. with regard to the holocaust, jews eventually dispersed to different countries in europe and the americas, formed committees and petitioned european governments for restitution. internationally, these are recurring instances which indicate restitution does not solely occur in one place and in one region. these programs of restitution provide adequate precedent for those who argue for reparations for slavery, slave trading, and its legacies. the claim for reparations is complicated and will take years to resolve. in the past, survivors of atrocities galvanized themselves into movements which forced governments to acknowledge the validity of their claims on an international platform. for example, as the voices of survivors of the holocaust strengthened, the international community denounced nazi germany’s crimes against humanity. this led european nations to create a forum to prosecute these crimes at the nuremberg international military tribunal.75 thereafter, victims and their surviving kin instituted civil lawsuits for financial compensation,76 some individually and others as groups. over time, the continuous quest for restitution led to ad campaigns,77 conferences, commissions78 and eventually the slave fund deal. this deal allowed claimants to petition the german government for acknowledgement and redress. the fund did not prohibit claimants from also filing civil suits against private corporations whose profiteering was complicit with the holocaust enterprise. yet, the initial undertaking to hold european governments and private corporations accountable was not achieved through a universal, cohesive plan. as momentum grew for restitution for individual suffering under the umbrella of the holocaust, so did collective consciousness, which led to groups, conferences, then commissions. similarly, the reparations movement79 for the trans-atlantic slave trade is an arduous endeavor. it spans an extensive period of time, across several nation-states and corporations—and its vestiges still remain today. the movement has yet to reach a systematic approach. however, reparationists have 75 see charter of the international military tribunal art. 6, aug. 8, 1945, 59 stat. 1544, 82 u.n.t.s. 279. 76 see nazi-era labourers sue two auto firms; 2 groups sue bosch, daimlerchrysler, toronto star, may 10, 1999, http://pqasb.pqarchiver.com/thestar/access/427508911.html?fmt=abs&fmts=abs:ft&type=current&date=may +10%2c+1999&author=&pub=toronto+star&edition=&startpage=1&desc=naziera+labourers+sue+two+auto+firms+%3b+2+groups+sue+bosch%2c+daimlerchrysler; howard hobbs, ford motor co. charged in nazi secret profits on slave labor, daily republican (mar. 18, 1998), http://www.dailyrepublican.com/ford_slave_labor.html; thomas s. mulligan, lawsuit alleges ford profited from forced labor in wwii, l.a. times, mar. 5, 1998, http://articles.latimes.com/1998/mar/05/business/fi-25568. 77 see associated press, “slave” ads target wwii firms: victims of nazis step up fight for compensation, toronto star, oct. 6, 1999, at a15. 78 see foundation polish-german reconciliation, supra note 49. 79 see angelique m. davis, multiracialism and reparations: the intersection of the multiracial category and reparations movements, 29 t. jefferson l. rev. 161, 170 (2007) (“the modern reparations movement began with the publication of randall robinson’s book the debt: what america owes to blacks and representative john conyers’ (d.-mich.) introduction of h.r. 40, a bill to redress slavery. robinson’s compelling indictment of america’s failure to recognize the consequences of slavery reenergized reparations activism and discourse.” (footnotes omitted)). 162 the trans-atlantc slave trade vol. 3:2 recently filed lawsuits,80 and grassroot organizations in the united states,81 the west indies,82 and central america83 have mustered public attention through international conferences84 and increasing media coverage.85 as a result, at least in the u.s., individual states and municipalities have enacted measures 80 see, e.g., compl. and jury trial demand, farmer-paellmann v. fleetboston fin. corp., no. 02-cv-1862 (e.d.n.y. filed mar. 26, 2002); farmer-paellmann v. brown & williamson tobacco corp., 552 u.s. 941, 941 (2007) (denying petition for certiorari); cato v. united states, 70 f.3d 1103 (9th cir. 1995); see also peter viles, suit seeks billions in slave reparations, cnn (mar. 27, 2002, 11:29 am), http://archives.cnn.com/2002/law/03/26/slavery.reparations/index.html; second slave reparations suit filed, fox news, may 2, 2002, http://www.foxnews.com/story/0%2c2933%2c51723%2c00.html; michael winter, house oks $4.55b settlement for american indians, black farmers, usa today (nov. 30, 2010, 7:48 pm), http://content.usatoday.com/communities/ondeadline/post/2010/11/house-oks-455b-settlement-for-americanindians-black-farmers/1; see also ben evans, usda offers $1.3-billion settlement to female, latino farmers who claim discrimination, cns news, may 26, 2010, http://cnsnews.com/node/66673. 81 see restitution study grp., http://rsgincorp.com/ (last visited apr. 8, 2013); cure (caucasians united for reparations & emancipation): reparations, educ. & advoc., http://reparationsthecure.org/ (last visited apr. 8, 2013); millions for reparations, social justice movements (july 12, 2005, 11:03 am), http://socialjustice.ccnmtl.columbia.edu/index.php/millions_for_reparations; nat’l coal. of blacks for reparations in am., http://www.ncobra.org/ (last visited apr. 8, 2013); dr. raymond windbush, director, inst. for urban research at morgan state univ., http://iur.morgan.edu/rw.htm (last visited apr. 8, 2013). 82 see background, nat’l comm’n on reparations, http://www.jis.gov.jm/special_sections/reparations/background.html (“the establishment of a reparations commission and the terms of reference by which it should operate covers jamaican descendants of slaves, wherever they reside, whether in jamaica or in the diaspora in order to consider the interests of the large external jamaican population. this is highlighted to clearly delineate the work of the commission and the jamaican government’s power to demand compensation.”) (last visited aug. 10, 2013). 83 see columbia’s comité para la eliminación de la discriminación racial (cerd); see also movimiento panafricanista de españa y ponente pnl reconocimiento de la comunidad negra. 84 see congreso internacional de victimas del racismo: acciones afirmativas, reparaciones, memoria historica negra en democracia, barcelona spain (mar. 21, 2012), http://www.reparacionafricana.blogspot.com/; durban review conference, geneva, switz., apr. 20–24, 2009, united nations, http://www.un.org/durbanreview2009/ (last visited apr. 7, 2013); united nations econ. & soc. council, comm’n on human rights, sub-comm’n on the promotion and prot. of human rights, prevention of discrimination: prevention of discrimination and protection of minorities, may 12–16, 2003, ¶ 19, u.n. doc. e/cn.4/sub.2/2003/19 (july 10, 2003), available at http://www.unhchr.ch/huridocda/huridoca.nsf/e06a5300f90fa0238025668700518ca4/80aaa6b2133aa5e9c1256d8a0029 1c18/$file/g0315163.doc (“afro-descendant representatives called for integration measures to encourage the development of multicultural organizations and raise awareness of minority issues. the government of brazil was also requested to empower the reparations movement for afro-descendants, indigenous peoples and roma people.”); see also world conference against racism, supra note 2. 85 see, e.g., baldwin spencer, demanding reparations for slavery, nation news (sept. 25, 2011, 1:35 pm), http://www.nationnews.com/articles/view/demanding-reparations-for-slavery/ (“the antiguan and vincentian prime ministers, in separate speeches to the united nations yesterday, demanded reparations for injustices suffered by african slaves and their descendants, whose legacy has slowed their advancement as people and nations.”); george alleyne, call for reparations, trinidad and tobago newsday (oct. 5, 2011), http://www.newsday.co.tt/commentary/0,148391.html; shelley moorhead, a return to denmark for reparations, crucians in focus (june 29, 2010), http://cruciansinfocus.com/2010/06/29/a-return-to-denmark-for-reparations/; slavery and debt, (feb. 13, 2005, 10:24 pm), http://www.workers.org/2005/editorials/reparations_0217/; california considering slave reparations, fox news (may 6, 2002), http://www.foxnews.com/story/0,2933,52062,00.html; suit seeks billions in slave reparations, cnn (mar. 27, 2002), http://www.cnn.com/2002/law/03/26/slavery.reparations/index.html; second slave reparations suit filed, fox news (may 2, 2002), http://www.foxnews.com/story/0,2933,51723,00.html; brandt williams, the case for slavery reparations, minn. pub. radio (nov. 13, 2000), http://news.mpr.org/features/200011/13_williamsb_reparations/; paul shepard, lawyers plan slave reparations suit, wash. post (nov. 4, 2000, 11:14 pm), http://www.washingtonpost.com/wpsrv/aponline/20001104/aponline231414_000.htm. 2013 columbia journal of race and law 163 163 163 163 163 163 163 requiring banks and companies to disclose their roles in municipal slavery,86 and in some instances these ordinances prevent such corporations from participating in government contracts or accessing state funds to conduct business until they comply with such statutes. these states include iowa,87 new york,88 north carolina,89 and illinois.90 some municipalities throughout the united states have followed state examples by replicating the disclosure requirement at the city level. these municipalities include chicago, illinois,91 wayne county, michigan,92 and philadelphia, pennsylvania.93 california94 catapulted this legislative trend by being the first state to propose and pass such laws. several of its major cities are proposing local ordinances reiterating the same principles.95 currently the state of massachusetts has also proposed “an act relative to the history of slavery in the commonwealth.”96 it appears that the state legislatures and grass roots organizations within the united states have led the fight for reparations. as of the date of this writing, nations of the west indies and south america have no known lawsuits or legislation addressing slavery and the trans-atlantic slave trade. while scholar-activists continue to advocate for restitution,97 state-level lawmakers have begun to chisel a gateway for restitution by establishing their own commissions to permit monetary claims for 86 see chris baker, naacp to target private business, the wash. times, july 12, 2005, http://www.washingtontimes.com/news/2005/jul/12/20050712-120944-7745r/ (“the group’s strategy will include a lobbying effort to encourage cities to enact laws requiring businesses to complete an extensive slavery study and submit it to the city before they can get a city contract.”). 87 see h.r. 29, 80th gen. assemb., reg. sess. (iowa 2003), available at http://coolice.legis.state.ia.us/coolice/default.asp?category=billinfo&service=billbook&ga=80&hbill=hr29; iowa ins. div., report on slavery era insurance, iowa.gov, http://www.iid.state.ia.us/slavery (last visited apr. 7, 2013). 88 s. s01383, 2005–2006 gen. assemb., reg. sess. (2005), available at http://assembly.state.ny.us/leg/?default_fld=&bn=s01383&term=2005&summary=y&actions=y&votes=y 89 h.r. 1006, 2005 gen. assemb., reg. sess. (2005), available at http://www.ncga.state.nc.us/sessions/2005/bills/house/pdf/h1006v1.pdf, codified at n.c. gen. state., ch. 143, art. 3., § 143-59.4. 90 h.r. 2379, 93rd gen. assemb., reg. sess. (ill. 2003), available at http://www.ilga.gov/legislation/93/hb/09300hb2379eng.htm, codified at 215 ill. comp. stat. 5/155.39 (2003). 91 see chi., ill., municipal code § 292-585 (2002); see also sabrina l. miller & gary washburn, new chicago law requires firms to tell slavery links, chicago tribune (oct. 03, 2002), http://articles.chicagotribune.com/2002-1003/news/0210030033_1_chicago-ordinance-city-contracts-dorothy-tillman. 92 see wayne cnty., mich., code of ordinances, tit. vi, ch. 120, art. xi, §120-192(f), available at http://library.municode.com/index.aspx?clientid=13032. 93 phila., pa. code § 17-104 (2005), available at http://legislation.phila.gov/attachments/1420.pdf. 94 s. 2199, 2000 leg., reg. sess. (cal. 2000), available at http://www.insurance.ca.gov/0100-consumers/0300public-programs/0200-slavery-era-insur/sb-2199.cfm; cal. code of regs. tit. 10, §§ 2393-2398, available at http://www.insurance.ca.gov/0100-consumers/0300-public-programs/0200-slavery-era-insur/insur-slavery-regs.cfm. 95 see, e.g., l.a., cal., admin. code, ch. 1, art. 15 (2003), available at http://clkrep.lacity.org/onlinedocs/2003/03-0232_ord_175346_08-16-2003.pdf (affidavit available at http://bca.lacity.org/site/pdf/sdo/affidavit.pdf; s.f., cal., admin. code, ch. 12y (2006), available at http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:sanfrancisco_ca; berkeley, cal., municipal code, tit. 13, ch. 13.96 (2005), available at http://www.ci.berkeley.ca.us/citycouncil/2005citycouncil/packet/052405/2005-05-24%20item%2015.pdf; richmond, cal., code of ordinances, art. ii, ch. 2.29, available at http://library.municode.com/index.aspx?clientid=16579&stateid=5&statename=california. see also jason b. johnson, firms that profited from slavery reviewed: richmond, oakland consider early step to seeking reparations, s.f. chronicle (mar. 12, 2005, 4:00 am), http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/03/12/bag00bntts1.dtl. 96 h.r. 3148, 186th gen. ct., reg. sess. (mass. 2009), available at http://www.mass.gov/legis/bills/house/186/ht03pdf/ht03148.pdf. 97 see, e.g., feagin, supra note 33; eric j. miller, representing the race: standing to sue in reparations lawsuits, 20 harv. blackletter l.j. 91 (2004); charles j. ogletree, jr., the current reparations debate, 36 u.c. davis l. rev. 1051 (2003) [hereinafter the current reparations debate]; keith n. hylton, a framework for reparations claims, 24 b.c. third world l.j. 31 (2004); charles j. ogletree, jr., reparations for the children of slaves: litigating the issues, 33 u. mem. l. 164 the trans-atlantc slave trade vol. 3:2 badges and incidents of slavery.98 at least one member of the united states congress is a long-time supporter of reparations and advocates the establishment of a national commission to study the effects of slavery. representative john conyer’s h.r. 40 bill99 is a pivotal next step in petitioning the united states government for reparations. once a national commission is established, descendants of the african diaspora may use it as a prototype and replicate it in their respective countries, similar to the different commissions which sprang forth for holocaust survivors and slave laborers in the czech republic, hungary, poland, and the other former states of the soviet union.100 it will be that moment in the reparations movement that will generate sufficient international fervor for a proposed international tribunal for the trans-atlantic slave trade and municipal slavery finally to be established. b. difficulty in attaching a monetary value for crimes against humanity any human life that has been annihilated as a result of those who have committed crimes against humanity is legally entitled to compensation.101 the question that remains is how does one assign a monetary value to human life because the reasonably prudent person knows that wealth cannot revive the dead. this and relevant legal questions are based on the judicial system of the united nations and those nation-states who are (at miminum) signatories to the basic un protocols and conventionsdeclaration on human rights, slavery convention of 1926 and supplement slavery convention. nevertheless, restitution is an acknowledgment of a wrong, regardless of how inadequate the monetary award is in light of the actual loss. at the time when european jews began to develop momentum for the cause of reparations for the atrocities of the holocaust, not all jews agreed that assigning a monetary value to human life was impossible. there were some who deplored the notion of financial compensation for the horrors of the concentration and extermination camps.102 these members of the jewish community believed that accepting money from germany devalued the memory of the holocaust that they and their forefathers rev. 245 (2003) [hereinafter children of slaves]; charles j. ogletree, jr., repairing the past: new efforts in the reparations debate in america, 38 harv. c.r.-c.l. l. rev. 279 (2003) [hereinafter new efforts]; adrienne d. davis, the case for united states reparations to african americans, 7 hum. rts. br. 3 (2000); robert westley, many billions gone: is it time to reconsider the case for black reparations?, 40 b.c. l. rev. 429 (1998); verdun, supra note 1. 98 see 2012 va. acts 527, available at http://lis.virginia.gov/cgi-bin/legp604.exe?ses=121&typ=bil&val=hb527 (establishing “the virginia slave commission . . . in the legislative branch of state government for the purpose of addressing contemporary political, economic, educational, and societal issues and public policies whose roots lie in the transatlantic slave trade.” the commission, among other things, must identify the vestiges and assess the effects of the transatlantic slave trade on african americans, the commonwealth, and modern societal problems and public policies.); s. a07312, 2005–2006 gen. assemb., reg. sess. (n.y. 2005), available at http://assembly.state.ny.us/leg/?default_fld=&bn=a07312&term=2005&summary=y&actions=y; h.j.r. 0014, 107th gen. assemb., reg. sess. (tenn. 2011), available at http://legiscan.com/tn/text/hjr0014/2011 (creating special committee to study “the impact of slavery and segregation on african-americans in tennessee”); h.j.r. 0086, 93rd gen. assemb., reg. sess. (ill. 2004), available at http://www.ilga.gov/legislation/93/hjr/09300hj0086.htm (“resolved, by the house of representatives of the ninety-third general assembly of the state of illinois, the senate concurring herein, that there is established the commission to study the transatlantic slave trade and its past and present effects on african-americans”). 99 h.r. 3745, 101st cong. (1989). 100 see, e.g., foundation polish-german reconciliation, supra note 49. 101 the concept that reparations are payable where a crime against humanity has been committed by one people against another is well-established in international law and practice. see lord gifford debate, supra note 2. 102 barkan, supra note 4, at 25. they insisted that it was inexcusable to betray the memory of the six million jews who had perished in the holocaust by negotiating the forgiveness of their blood. 2013 columbia journal of race and law 165 165 165 165 165 165 165 had endured.103 nevertheless, the cause for reparations increasingly gained support, creating a greater unification amongst jews who would demand recompense for the holocaust.104 although jews knew that money could not restore them to their original state nor alter the status of their tortured predecessors, they did accept the notion, that the smallest act of atonement that the german government could perform was to pay reparations.105 germany’s act of restitution became part of a recognized legacy in which the progeny of european jews would later promote a legacy of remembrance, and thus adopted the phrase “never again.” similarly, advocates argue that reparations are the smallest necessary act of atonement for generations and nations involved in the slave trade.106 thus, the increased advocacy for reparations on behalf of jews evolved into a two-fold moral obligation. european jews advocated not only for their own injuries, but also on behalf of their forebears. they created a new legacy of strength rather than victimization.107 on the other side, the german government paid reparations to apologize for the perpetrators of these crimes against humanity many of whom held positions in the government in years past. germany's act of reparation began to transform its reputation among its citizens as well as in the international community.108 thus, jews began to forge a new paradigm regarding restitution and historical injustices that subsequent survivors of crimes against humanity could use as a standard, while making a social, economic and legal impact that would benefit their prosperity. c. the trans-atlantic slave trade’s legalized legacy of discrimination although the trans-atlantic slave trade was a complex financial enterprise, its proponents shed continuous streams of african blood, eradicating precious human life throughout the eastern and western hemispheres. black/native americans, as well as some latinos and their african ancestors, were socially and culturally dismantled by those who engaged in slave expeditions, kidnapping, and slave trading.109 103 id. 104 id. 105 id. at 27. reparation was viewed as a moral, legal, and political commitment, yet the enormity of the ethical and moral crimes made a comprehensive restitution impossible. 106 see verdun, supra note 1, at 612–28. 107 barkan, supra note 4, at 26. 108 id. at 27. 109 african slaves were forced to speak the language of their captors throughout the trans-atlantic slave trade and subsequent international municipal slavery, while losing their own. they were also forced to nurse their captors and mistresses' children, while their owns either starved, were neglected, or were forced to consume the remnants of eaten or rotten food in the shacks on the plantation like animals or work in the gleaming sun while tending the fields. they lived in shacks, while their masters and mistresses resided in luxurious, clean mansions or homes that slaves built and maintained. the slaves were the seamstresses for the madams, while they themselves wore little clothing or rags. they were also forced into illiteracy so that they would naturally sound unlearned, thus creating another justification for europeans to enslave the “ignorant” africans, while the slave-masters’ children attended institutions of learning and the slave-children labored in the plantation fields. slave-masters and slavers aboard ships raped slave women, and forced them to breed in order to generate valuable chattel to be sold. the slave-traders and overseers tortured and murdered slaves when they attempted to escape the dreadful reality of servitude labor; while europeans enslaved africans and journeyed to the new world in the name of freedom from tyranny or oppression of european monarchs. see slave testimony: two centuries of letters, speeches, interviews, and autobiographies (john w. blassingame ed., 1977); see also thomas, supra note 3 at 117. 166 the trans-atlantc slave trade vol. 3:2 the slavery convention of 1926,110 as amended, and the slavery convention of 1956111 outline acts that constitute slave trading and slavery. the rome statute, ratified in 2002,112 includes slavery in its detailed explanation of crimes against humanity. european and african monarchs who held and traded slaves have committed these crimes against humanity. the slavery conventions define slavery and slave trading as follows: (1) slavery is the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised. (2) the slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade transport of slaves the entire slave trade institution became the foundation for which the slavery conventions were enacted, and decades after the ratification of the slavery conventions the rome statute was ratified, providing additional credence to the slavery conventions. in 1948, the general assembly of the united nations announced the adoption of the universal declaration of human rights.113 the crafters of the declaration recognized that all human beings are inherently free,114 and provided additional denouncement of slavery and slave-trading.115 although this declaration is advisory and not statutorily binding on member nation-states, under international custom it is binding on the international community. despite the international condemnation of crimes against humanity and slavery in general, the issue of reparations for the trans-atlantic slave trade itself has not been addressed. thus, remains the awesome task of assessing the immediate and long-term social, cultural, and economic damage that the trans-atlantic slave trade has had (primarily) on black/native americans, but also on native americans and those of hispanic descent. the victims of the trans-atlantic slave trade and western municipal slavery were systematically dehumanized by being branded, kidnapped, and lynched simply because of their race. during the era of reconstruction, beneath the guise of the freedmen’s bureau, the laws of jim crow, and black codes, the system of slavery and its legacy still existed, regardless of the passage of the 13th amendment.116 it is 110 see the slavery convention, sept. 25, 1926, 60 l.n.t.s. 253, amended by protocol amending the slavery convention, dec. 7, 1953, 182 u.n.t.s. 51. 111 see supplementary convention on the abolition of slavery, the slave trade, and institutions and practices similar to slavery, sept. 7, 1956, 266 u.n.t.s. 3. 112 see united nations diplomatic conference of plenipotentiaries on the establishment of an international criminal court, june 15–july 17, 1998, final act, u.n. doc. a/conf.183/10 (1998) [hereinafter rome treaty statute]. 113 see universal declaration of human rights, g.a. res. 217a (iii), u.n. gaor, 3d sess., u.n. doc. a/810 (dec. 12, 1948). 114 id. at art. i (“all human beings are born free and equal in dignity and rights. they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”). 115 id. at art. 4 (“no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”). 116 see the current reparations debate, supra note 97, at 1068, 1069 (“but perhaps my favorite was the letter stating that blacks should compensate the southern whites dispossessed by means of the freedman’s bureau. this correspondent had a shaky grasp of history. the land the bureau gave to blacks was taken back and redistributed to whites to compensate them for their loss of slaves.”). 2013 columbia journal of race and law 167 167 167 167 167 167 167 unreasonable to expect that after all of these acts, centuries later, descendants of freed slaves could equitably compete economically, socially, and culturally with their white counterparts in a system whose foundation is corrupted with racial bias.117 members of the dominant society possessed a four-centuryold, well-established advantage in a system that their ancestors created,118 an institution stymied with institutionalized racial discrimination. these were only some of the atrocities that slaves and their descendants systematically endured for centuries. unfortunately, due to the inevitable passage of time and the legacy of international sanction, participating nation-states have provided limited reconciliatory actions towards slavery survivors and their descendants for these crimes against humanity. while the immediate perpetrators have vanished, there are still authorities who sit in the same seats of international power in nations that were intricately involved in the trans-atlantic slave trade,119 and who continue to benefit financially from its legacy.120 many of the nation-states who participated in and encouraged the degrading and demoralizing enterprise of the slave trade within its borders and abroad remain in existence or evolved itelf into an autonomous country and arguably continue to prosper based on centuries of forced free labor. there remain caucasian laymen who benefit from slavery’s established privilege of wealth by enjoying greater access to education and employment, while the descendants of slaves continue to be oppressed by the great disadvantages that are linked to such an historical atrocity. 121 117 see also international labor conference, may 30–june 15, 2007 equality at work: tackling the challenges 24 (may 10, 2007), available at http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/--webdev/documents/publication/wcms_082607.pdf [hereinafter equality at work]. racial discrimination affects millions of different workers around the world, ranging from black people and ethnic minorities to indigenous peoples, nationals of foreign origin and migrant workers. very often those who suffer racial or ethnic discrimination are very poor. centuries of unequal treatment in all spheres of life, combined with persistent and deep ethnic socio-economic inequalities, explain their low educational and occupational attainments. lower achievements, in turn, make them vulnerable to ethnic stereotyping, while social and geographic segregation perpetuates ethnic inequalities, reinforcing perceptions of “inferiority” or “distastefulness” by majority groups. 118 see verdun, supra note 1, at 612–13. ignoring or even downplaying the significance of race in a system that discriminated against a group of people based on its race for hundreds of years—a system that left that group in a politically, economically, and socially disadvantaged state—threatens affirmative action plans and efforts. 119 see winbush, supra note 27, at 57. 120 see verdun, supra note 1, at 636. 121 see feagin, supra note 33, at 50. there is a similar connection between the relative poverty of african americans and the enrichment and prosperity of most european americans. over several centuries, most whites, as individuals and families, have benefited handsomely from anti-black oppression and the transmission of ill-gotten wealth and privilege from one generation to the next. today, the relative prosperity, long life expectancies, and high standard of living of white americans are significantly rooted in centuries of exploitation and impoverishment of african americans and other americans of color; see also h.r. 40, 108th cong. (2004). quoting michigan representative conyers, sponsor of the bill: “just as white americans have benefited from education, life experiences, and wealth that was handed down to them by their ancestor, so too have african americans been harmed by the institution of slavery.” see u.s. census bureau, income, poverty, and health insurance coverage in the united states: 2011current population reports, carmen denavaswalt, bernadette d. proctor, jessica c. smith, pp. 14, 18 (2012). see also united states bureau of labor statistics, economic news release november 2, 2012. http://www.bls.gov/news.release/empsit.a.htm (last visited december 4, 2012). see also news one, black unemployment jumps in jobs report released on eve of election, lynette holloway. http://newsone.com/2072628/black-unemployment-october-jobs-report-2012-presidential-election/. (last visited december 4, 2012). see also cnn money, african-american jobless rate surges, emily jane fox, july 6, 2012. http://money.cnn.com/2012/07/06/news/economy/black-unemployment-rate/index.htm. (last visited december 4, 2012). see also city limits, group wants un scrutiny of u.s. black unemployment:as the united nation's human rights council embarks on a review of the united states, some advocates say high black joblessness is a mark against america, jarrett murphy, april 26, 2010, http://www.citylimits.org/news/articles/3956/group-wants-un-scrutiny-of-u-s-black-unemployment. (last visited december 4, 2012). see also the washington post, u.s. unemployment rate for blacks projected to hit 25-year high, v. dion haynes, january 15, 2010. http://www.washingtonpost.com/wp168 the trans-atlantc slave trade vol. 3:2 thereafter, the effects of this gruesome legal history have consistently manifested themselves throughout the lives of its progeny. these badges and incidents of slavery attest to the international community’s failure to enforce existing legislation which prohibit discrimination and protect civil rights, and its failure to enact appropriate un resolutions and conventions addressing the issue of reparations. in recent decades, invidious discrimination has occurred internationally against people of color, especially black/native americans, regarding the right to vote, equitable access to education, employment, housing,122 and racial profiling.123 black, native, and latino americans continue to have unequal access to education. the universal declaration of human rights states that each person has the right to equal access to education based on merit.124 thus, the declaration argues for equitable, and not necessarily equal, access to education. it cannot be emphasized enough that because the descendants of slavery were involuntarily integrated into an unfamiliar, caucasian-owned and managed system of government, these citizens deserve the same opportunity to education as their white contemporaries. when africans were separated from africa they lost much of their native language. africans were often beaten or tortured if they uttered a word of their native tongue, thus they lost their original oral tradition and remained illiterate in the dominant, written language. illiteracy dismantled basic freedoms to advance economically in mainstream society, associate, assemble in a peacefully, express ideologies, travel, and shop. during the early 1900s, most schools for blacks in the rural south had no books, and those that they did have were antiquated or few in number. schools were overcrowded, with a high student to teacher ratio. in addition to inadequate schoolhouses and supplies due to lack of funding,125 the dyn/content/article/2010/01/14/ar2010011404085.html. (last visited december 4, 2012). see also, asher hawkins, minority unemployment skyrocketing, report says, forbes magazine, january 15, 2010, http://www.forbes.com/sites/moneybuilder/2010/01/15/minority-unemployment-skyrocketing-report-says/. (last visited december 4, 2012). see also equality at work, supra note 117. see also periodic report of the united states of america to the u.n. committee on the elimination of racial discrimination concerning the international convention on the elimination of all forms of discrimination (2007). nonetheless, significant challenges still exist. subtle, and in some cases overt, forms of discrimination against minority individuals and groups continue to plague american society, reflecting attitudes that persist from a legacy of segregation, ignorant stereotyping, and disparities in opportunity and achievement. such problems are compounded by factors such as inadequate understanding by the public of the problem of racial discrimination, lack of awareness of the government-funded programs and activities designed to address it, lack of resources for enforcement, and other factors. see also hylton, supra note 97, at 35. 122 see verdun, supra note 1, at 598, 640. pervasive discrimination and segregation in employment, education, and housing, which have resulted in the continuing exclusion of great numbers of negroes from the benefits of economic progress. 123 william m. carter, jr., a thirteenth amendment framework for combating racial profiling, 39 harv. c.r.-c.l. l. rev. 18, 22 (2004) (racial profiling occurs when law enforcement authorities use race as a factor in predicting criminal conduct). 124 see universal declaration of human rights, supra note 113 (“everyone has the right to education. education shall be free, at least in the elementary and fundamental stages. elementary education shall be compulsory. technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. it shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the united nations for the maintenance of peace. (3) parents have a prior right to choose the kind of education that shall be given to their children.”). 125 see carlton waterhouse, avoiding another step in a series of unfortunate legal events: a consideration of black life under american law from 1619 to 1972 and a challenge to prevailing notions of legally based reparations, 26 b.c. third world l. j. 207, 236 (2006) (“following the civil war, legally mandated segregation in education blossomed in the south while it gradually declined in the north. in the south, segregation became the norm for public education. through legislative action, state officials consistently provided unequal funding to african american schools as compared with their white counterparts. discrimination by legislatures in funding segregated schools also included substantial discrepancies in the 2013 columbia journal of race and law 169 169 169 169 169 169 169 psychological, racial status quo was approved under the “separate but equal” legal doctrine.126 supporters of this notion asserted that “negroes” now had an “opportunity” to advance in mainstream society because of the new educational and transportation facilities separated by racial distinctions. additionally, the education black/native americans received in such segregated institutions was antiquated, eurocentric, and perpetuated the loss of a connection to their historical and cultural roots. descendants of slavery did not endure the separate but equal doctrine in the field of education alone. government also applied this policy in transportation and commerce. a pivotal civil rights case emerged challenging american racial politics entitled plessy v. ferguson. plessy was a landmark case in which the “separate but equal” doctrine was upheld. the appellant plessy was a mulatto passenger127 in a railroad coach whose departure and destination was within the borders of the state of louisiana.128 plessy attempted to sit in a section of the train reserved for whites when the conductor of the train attempted to eject him from the section.129 plessy’s primary argument against the constitutionality of the louisiana law130 was that because he was of mixed race, and upon first glance it was not readily ascertainable that he had a trace of negro blood in him, he was entitled to the same privileges and immunities as whites.131 the policy of the private owners of the train was to provide “separate but equal” accommodations to whites and “coloreds,” and was supported by louisiana’s legislation.132 the supreme court declared the law constitutional. the court, in delivering its convoluted opinion, asserted that federal law was only a corrective measure to be used after a citizen’s right is violated due to enforcement of state law.133 the court cautioned that congress did not have the legislative power to dictate to state legislatures how or what type of laws should be passed regarding the private rights of their citizens.134 thus, the court, in construing the ideal of federalism,135 emphasized the necessity of enacted state legislation to cause an injury before adjudicating the constitutionality of municipal or state law.136 the court further elaborated the issue of federal jurisdiction by noting that the louisiana statute only regulated railroad cars that traveled within its borders. the constitution vests regulation of interstate commerce solely in congress.137 the court, quoting another federal case, stated that the salaries of black and white teachers with comparable qualifications. in many instances, schools for blacks only came about through the funding of black parents and white philanthropists. in some cases, post-reconstruction governments of the south refused to fund black education and, in other cases, officials opposed the establishment of schools regardless of funding.”) (citations omitted). 126 in its 1896 plessy v. ferguson, 163 u.s. 537 (1896), decision, the supreme court upheld de jure segregation by the states. the precedent established in plessy continued as the law of the land until the 1954 supreme court decision in brown v. the board of education. 127 see id. (“that petitioner was a citizen of the united states and a resident of the state of louisiana, of mixed descent, in the proportion of seven-eighths caucasian and one-eighth african blood . . . .”) 128 see id. (“[h]e engaged and paid for a first-class passage on the east louisiana railway, from new orleans to covington, in the same state . . . .”). 129 plessy v. ferguson, 163 u.s. 537 (1896). 130 see 1890 la. acts 152. this act sanctions separate railway carriages for whites and blacks. 131 plessy, 163 u.s. at 537 (“ . . . [t]hat the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the united states of the white race by its constitution and laws . . . .”). 132 see generally 1890 la. acts 152, supra note 130. 133 see plessy, 163 u.s. at 537. 134 id. 135see barron's law dictionary 186 (3rd ed. 1991); see also marbury v. madison, 5 u.s. 137 (1803). 136 marbury, 5 u.s. at 137. 137 u.s. const. art. i, § 8, cl. 3 (“to regulate commerce with foreign nations, and among the several states, and with the indian tribes . . .”). 170 the trans-atlantc slave trade vol. 3:2 louisiana statute had no bearing on interstate commerce, and thus eliminated congress’ standing to interfere with the issue of the statute’s constitutionality.138 the court then addressed plessy’s argument that the regulation of segregation by race deprived him of property in violation of the privileges and immunities clause of the u.s. constitution.139 the court’s simplified response was that only if plessy were white and seated in a “colored” compartment would he then be deprived of property, because white men had certain privileges that non-whites did not possess. however, since the railroad company determined that plessy was not white and thus not in possession of these privileges, and seated him in the “colored” car, plessy was not deprived of any privileges.140 at this point in of u.s. constitutional history, the supreme court did not consider race a “suspect” class and therefore not held to today’s standard of strict scrutiny.141 as a result, the supreme court ruled applied the rational basis review standard142 to hold that louisiana’s statute was reasonable and therefore constitutional. the prima facie psychological effect of this ruling was that, once again, whites deemed themselves to be somehow superior to their non-white counterparts.143 the supreme court would argue that such a construction was the mental burden of black/native americans144 while at the same time conceding that the reality of social inequality between blacks and whites was a result of slavery. as a result of government-codified stereotypes, it became unlawful for blacks to visit, shop, and attend the same institutions of learning, visit the same businesses, museums, other public facilities, reside in homes of a quality comparable to those of whites, and to ride the same public transportation as whites, because the dominant culture used the psychological branding of inferiority on blacks.145 this branding was the same as that imposed was in the time of the trans-atlantic slave trade, and in today’s continuation of municipal slavery, white supremacy remains the inherited reality in american and european societies.146 black/native americans, however, did not necessarily harbor the notion that in order for their self-worth to be sufficient they had to be in the constant presence or societal engagement of whites. in fact, during slavery, blacks and native americans were ecstatic to be in their own company and celebrating the remnants of their african heritage and new black/native american culture without 138 plessy v. ferguson, 163 u.s. 537 (1896). 139 see id. at 549 (“it is claimed by the plaintiff in error that, in an [sic] mixed community, the reputation of belonging to the dominant race, in this instance the white race, is ‘property,’ in the same sense that a right of action or of inheritance or property.”). 140 id. (“if he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called ‘property.’ upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.”). 141 id. at 549 (“if he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called ‘property.’ upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.”). 142 id. at 550 (“in determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and preservation of the public peace and good order.”). 143 plessy v. ferguson, 163 u.s. 537, 552 (1896) (“we consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a bade of inferiority. if this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”). 144 id. 145 see verdun, supra note 1, at 634 (although most whites and african-americans would consciously disclaim any notion that african-americans are inferior to whites, subconsciously many decisions, heavily camouflaged in the cloak of meritocracy, are made based on such beliefs. this heritage of inferiority looms in erie, ghostlike form over african americans in the workforce, classrooms, markets, and social circles throughout the nation). 146 id. 2013 columbia journal of race and law 171 171 171 171 171 171 171 the annoying interference of their white oppressors. in south america this was evident in slave runaway communities, one of the most famous, palmares, referred to as quilombos,147 in which former slaves and africans not only help other slaves gain freedom but created new communities which merged a new solidarity of freedom with aspects of african culture with newly imposed christianity. africans knew that in order to survive in this land as well as in other european countries they would need to eventually be accepted by their former slavemasters. the most successful way to achieve this was to destroy europeans’ mentality of white supremacy. still, the federal united states government and governments of europe blamed the victims, who experienced inadequate access to goods, education, and accommodations under the doctrine of “separate but equal.” the federal government possessed a predatory ideology, according to which it could prey legally upon the perceived undesirables and then fault the victim for having caused the discriminatory cause of the act. the court manipulated the psychological effect of its opinion by asserting that black americans, black/native americans, or other people of color developed a mentality of inferiority due to some anonymous source, yet acknowledged the privileges whites enjoyed as a result of white supremacy and dejure segregation. in another landmark case centuries later, brown v. board of education,148 the federal government abolished the “separate but equal" status quo in institutions of learning. blacks and native americans attended schools that had minuscule school supplies, inadequate seating, and poor or no lighting. although many initial proponents of this doctrine did not in fact mind the separate educational facilities, as long as there was equal access to learning materials, teachers,149 and opportunities following graduation, a distinct reality emerged. the schools were separate but not equal.150 history has a peculiar manner of repeating itself. in the twenty-first century, the same racial disparity in education exists, albeit less obviously, that existed during reconstruction. many inadequately equipped public schools today are in poor neighborhoods occupied by latinos and black americans, as well as black/native americans. from the ninetheenth through the twenty-first centuries, in the southside of chicago, baltimore, new york city, detroit, and south central los angeles, schools continue to be overcrowded, inadequately funded, and polluted by asbestos and lead.151 for a substantial period of time, baltimore had one of the highest illiteracy rates in the united states. cities in the united states and europe still suffer from unacceptable conditions that were not adequately addressed after the eradication of physical slavery. white privilege in the realm of education in the united states is also manifest in the inequitable access to respected colleges and universities in the twenty-first century. the parents of students in one high school refused to allow the school to be renamed after martin luther king, jr. the parents' 147 palmares was the largest and most famous community established by runaway slaves in brazil during the 1600s. through the years, it has become an important symbol of the black struggle for freedom in brazil and other parts of the americas. palmares was formed about 1605 and grew through the union of several mocambos—settlements of runaway slaves. 148 344 u.s. 1 (1952). 149 jerald m. packard, american nightmare: the history of jim crow 56–57 (2002). 150 see briggs v. elliott, 342 u.s. 350, 351 (1952). a federal district court admitted “that the educational facilities afforded by appellees for negro pupils are not equal to those provided for white children.” 151 see diane rado et al., still separate, unequal, chi. trib, may 9, 2004, at 1. see also report: nearly half of detroiters can’t read, cbs news detroit, (may 4, 2011, 2:20pm), http://detroit.cbslocal.com/2011/05/04/report-nearlyhalf-of-detroiters-cant-read; see also simone wilson, los angeles ranks in bottom fourth of ‘america's most literate cities’ (january 10, 2011, 10:45 am), http://blogs.laweekly.com/informer/2011/01/literacy_ranking_los_angeles.php; see also paul w. valentine, baltimore targets its high rate of illiteracy; schmoke pushing programs to make ‘city that reads’ more than just an idle slogan, the washington post, august 27, 1990. 172 the trans-atlantc slave trade vol. 3:2 reasoning was that the school was in a majority white school district and the parents did not want their privileged white children to attend a high school associated with a black american.152 they theorized that college admission offices would likely discriminate against their children.153 they unwittingly asserted what most americans are reluctant to admit—that racism exists, and that not only are blacks discriminated against, but the mere association with black americans or black/native americans could affect one's educational and economic future. it is actually the blacks and native americans who have the least access to education, resulting in meager wages that in turn limit the extent to which they are able to economically provide for their families.154 according to statistics calculated in 2010, of the black americans and black/native americans surveyed twenty-five years of age or older, only 13.2% had obtained a bachelor’s degree compared to 20% of white americans and 14.4% of americans of hispanic origin.155 80% of these black americans and black/native americans had less than a bachelor’s degree, compared to 67% of white americans and 86% of those of hispanic origin.156 the disparate impact of the lack of access to education may not, at first glance, appear to be staggering. however, the total number of citizens within this age group was as follows: 22,202 black americans and black/native americans, 138,482 white americans, and 26,375 hispanic americans.157 although black americans and black/native americans comprised the smallest population in this age group, they also had the lowest percentage of education, compared to white americans who had the highest percentage of educational attainment. overall, white and latino had more people within their respective ethnic group to obtain a higher education than blacks. descendants of slavery did not endure the separate but equal doctrine in the field of education alone. government also applied this policy in transportation and commerce. the universal declaration of human rights prohibits discrimination in employment, and names employment as a right belonging to all citizens of the international community.158 in the united states, the civil rights act of 1964159 was enacted to eliminate employment discrimination; it prohibits discrimination based on race, religion, national origin, gender, ethnicity, or disability. however, the disparity in hiring among whites and people of color is staggering.160 it is not solely a question of 152 see the washington post, debate on naming school for m.l. king, january 5, 1998, at a.07 (“some white parents are fighting a plan to name a new high school after the rev. martin luther king jr., claiming it would be branded as a black school, hurting graduates’ college chances. the school in the city about 60 miles east of los angeles is scheduled to open in september 1999.”). 153 id. 154 see also raymond a. winbush, should america pay: slavery and the raging debate on reparations 61 (2003). 155 see u.s. census bureau, current population survey: educational attainment—people 25 years old and over, by total money earnings in 2010, work experience in 2010, age, race, hispanic origin, and sex, http://www.census.gov/hhes/www/cpstables/032011/perinc/new03_001.htm(last visited aug. 10, 2013). 156 id. 157 id. 158 see universal declaration of human rights, supra note 113. the charter states, “(1) everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) everyone, without any discrimination, has the right to equal pay for equal work.” 159 see civil rights act of 1964, title vii, 42 u.s.c. § 2000e-2 (2006). 160 for americans over the age of 16 in march 2013, white americans had an unemployment rate of 6.7 percent while the rate for african americans was 13.3. bureau of labor statistics, dep’t of labor, economic news release (april 5, 2013), available at http://www.bls.gov/news.release/empsit.a.htm (last visited apr. 6, 2013); see also international labour organization, 91st session 2003, report of the director-general time for equality at work 67, report i (b), table 6 (2003), available at http://www.ilo.org/ilc/ilcsessions/91stsession/lang--en/index.htm (last visited dec. 4, 2012); see also lynette 2013 columbia journal of race and law 173 173 173 173 173 173 173 whether a black american and a white american are equally qualified, but rather if the potential employer under such circumstances actually hires the black american, perhaps based on affirmative action.161 even if they obtain employment, black/native americans receive unfair treatment, their opinions are disregarded, and often a supervisor will favor an idea for improvement presented by a white employee simply because of the employee’s race, not because that employee’s idea served the best interests of the company or organization. conversely, a black/native american employee who provides initiatives for a company that improve that organization’s growth may be terminated based on racial discrimination.162 additionally, black/native americans who remain loyal to a company and advance in their position are usually denied advancement in favor of younger white replacements, who are less qualified.163 regardless of the strides that black/native americans make in their education and life experiences, their inner consciousnesses164 remain aware that they must toil twice as hard, restrain their emotions twice as much, and rely on a system that continuously deprives them of equal protection under the law;165 the pervasive reality is that justice is bound by those who administer it. unfortunately, the beholder inherits the position of dominant society, and true justice remains quite distant. the reality is racial inequality. additionally, there remains government action endorsing racial discrimination in access to housing. black/native americans and others graduated from living in plantation shacks or being a “house negro;” to attempting to develop their own neighborhoods without collateral, education, land, or job training; to progressing in their economic lives in the twentieth century in order to obtain a piece of holloway, black unemployment jumps in jobs report released on eve of election, news one, http://newsone.com/2072628/black-unemployment-october-jobs-report-2012-presidential-election/ (black unemployment rose from 13.4 percent in september 2012 to 14.3 percent in october); see also emily jane fox, africanamerican jobless rate surges, cnn money, july 6, 2012, http://money.cnn.com/2012/07/06/news/economy/blackunemployment-rate/index.htm (while the national unemployment figures remained constant during the may 2012, black unemployment rose by 0.8 percent); see also jarrett murphy, group wants un scrutiny of u.s. black unemployment, city limits, apr. 26, 2010, http://www.citylimits.org/news/articles/3956/group-wants-un-scrutiny-of-u-s-blackunemployment (a coalition of advocacy groups filed a petition with the human rights council seeking review of black unemployment in america); see also v. dion haynes, u.s. unemployment rate for blacks projected to hit 25-year high, wash. post, jan. 15, 2010, at a20 (black unemployment reached a twenty-five year high in 2010); see also asher hawkins, minority unemployment skyrocketing, report says, forbes.com (jan. 15, 2010, 1:19 pm), http://www.forbes.com/sites/moneybuilder/2010/01/15/minority-unemployment-skyrocketing-report-says (similar). 161 the legal framework of affirmative action is set forth in statutes and executive orders. see generally 29 c.f.r. § 1608 (1979) (statute authorizing the equal employment opportunity commission); exec. order no. 11246, 30 fed. reg. 12,319 (sept. 24, 1965) (creating the equal employment opportunity program); exec. order no. 11478, 34 fed. reg. 12,985 (aug. 8, 1969) (same for federal government hiring). 162 see lauren fitzpatrick, fired teacher sues cps, alleging racial discrimination, chicago sun times, dec. 12, 2012, at a12. 163 several examples have been reported in the news recently. see shan li, race bias found in firing by wet seal, l.a. times, dec. 4, 2012, at b1 (“hersey was turned down each time that the position became available from 2009 to early 2010, not because she was unqualified but because she's black, according to a lawsuit filed on her behalf by the equal employment opportunity commission.”); see also david schepp, dollar general accused of denying promotion to black worker in favor of whites, aol jobs, oct. 3, 2012, http://jobs.aol.com/articles/2012/10/03/lawsuits-chargedollar-general-with-race-discrimination-sex-har/ (dollar general promoted less-qualified white applicants instead of black applicants into that position, the federal agency claims, noting that hersey was the only black employee of the store, located in the gulf coast community of long beach.”); see also wet seal discriminated against former black manager, eeoc says, l.a. times, dec. 4, 2012, http://articles.latimes.com/2012/dec/04/business/la-fi-wet-seal-eeoc-bias20121204 (“filed in july, the lawsuit accuses the clothier of adopting a policy of firing black employees and denying them promotions and pay raises in favor of hiring white workers who better fit the company's "brand image."). 164 verdun, supra note 1, at 600. 165 see carter, supra note 123, at 26; see also verdun, supra note 1, at 627. 174 the trans-atlantc slave trade vol. 3:2 the american dream of owning a home; only to be once again stripped of this dream by government and private actors166 primarily because of the color of their skin. these minorities are herded into inadequate living conditions in the ghettoes of the modern west due to the inherent racial dynamics of its social and legal systems, providing more support for the legal argument that racial discrimination in access to housing is yet another vestige of the trans-atlantic slave trade and municipal slavery.167 finally, the vestiges of the slave-trading institution are not only apparent in education, employment, and housing. they have also disparately impacted the criminal justice system168 in the form of racial profiling by law enforcement officials.169 beyond the particular acts that comprised the trans-atlantic slave trade, it is also peculiar that four centuries thereafter, descendants of its victims have been maligned and coerced into a systematic, menial social status that still affects nearly every aspect of their lives.170 as discussed, the victims and their progeny were and still are stripped of voting rights, education, employment, and housing, features that form the bases of acceptable standards of living and the foundations of any democratic community or civilization. the exact costs of the trans-atlantic slave trade have not, and will likely never be, fully ascertained. the pending h.r. 40 bill171 would form a commission to examine the institution of slavery and its effects on descendants of the african diaspora in north america. representative tony p. hall of ohio sponsored a separate bill, h. con. res. 356,172 declaring that the history of slavery continues to deprive black americans of their civil rights as natural citizens of the united states.173 the resolution also calls on congress to apologize for slavery and the slavery-like conditions that existed in america,174 just as congress did in the civil liberties act of 1965, and just as presidents george bush, sr. and william jefferson clinton apologized on behalf of the government for the unfair and racist treatment of the japanese.175 like h.r. 40,176 h. con. res. 356 calls on congress to establish a commission to analyze 166 see winbush, supra note 27, at 114. 167 see jones v. alfred h. mayer, co., 392 u.s. 409, 443 (1968). the court interpreted the 1866 civil rights act as prohibiting both private and governmental discrimination in housing. “whatever else they may have encompassed, the badges and incidents of slavery that the thirteenth amendment empowered congress to eliminate included restraints upon “those fundamental rights which are the essence of civil freedom, namely, the same right…to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.” this is in contrast to the prior civil rights cases, in which congress rejected the idea that the 14th amendment granted federal powers to prohibit or enforce the prohibition of discrimination against blacks in housing if the actor is a private citizen. see the civil rights cases, 109 u.s. 3, 22 (1883). 168 see shelton, supra note 5, at 286. 169 see carter, supra note 123, at 21 (“rather this article contends that the widespread stigmatization of african americans as predisposed toward criminality is a lingering vestige of the slave system and is therefore outlawed by the thirteenth amendment.”). 170 see winbush, supra note 27, at 116; see also race relations act, (1976), c. 74 (eng.), available at http://www.legislation.gov.uk/ukpga/1976/74 (2000 amendments). 171 see h.r. 40, 112th cong. (2011). 172 see h.r. con. res. 356, 106th cong. (2000) (“whereas slavery was a grave injustice that caused and continues to cause african americans to suffered enormous damages and losses, both material and intangible, including the loss of human dignity and liberty, the frustration of careers and professional lives, and the long-term loss of income and opportunity . . . .”). 173 id. 174 id. (“resolved by the house of representatives (the senate concurring), that—(1) congress . . . (b) apologizes to african-americans on behalf of the people of the united states for the wrongs committed against their ancestors who suffered as slaves . . .”). 175 see civil liberties act, supra note 63. see also letter from president george bush, sr., october 9, 1991 (containing apology on behalf of the country to japanese interned during world war ii), available at http://www.learner.org/courses/amerhistory/interactives/sources/e7/e1/sources/5496.php; letter from president 2013 columbia journal of race and law 175 175 175 175 175 175 175 the impacts of slavery and subsequent racial discrimination against black americans.177 some advocates for restitution argue that the minimum amount of reparations is the current value of “forty acres and a mule,”178 based on the original field order of general sherman. however, this minimal award ignores years of loss of families, culture, and homeland that africans and their descendants experienced,179 as well as the involvement of other nations180 whose wealth was directly cultivated and nourished by the toil of africans, black/native americans, and native americans. thus, the threshold issue is what standard to use to calculate restitution and how that standard would be applied. iii. legal issues for enforcing applicability of international reparations a. ascertaining jurisdiction/sovereignty standards for international criminal tribunal jurisdiction over a sovereign was legally impossible from the seventeenth through the nineteenth century, based on the european notion that “the king can do no wrong.”181 this idea became the basis of the legal doctrine of sovereign immunity. due to the belief that because a king or other governmental leader is in charge of his citizens, he would do only that which is beneficial for the sovereign.182 however, international legal history evidences the right of citizens to seek redress from offending governments.183 it has been conceded on record that the trans-atlantic slave trade was a crime against humanity.184 traditionally, the state brings criminal charges against individuals who have violated the rights of others. although individual slave traders have perished, the governments and private companies who financed, licensed, promoted, and otherwise aided those involved in the enterprise, and who continue to william jefferson clinton, october 1, 1993 (same), available at http://hillyardhistory.net/uploads/president_bill_clinton__internment_apology_letter__text____oct._1__1993_.pdf. 176 see h.r. 40, 112th cong. (2011). 177 see h.r. con. res. 356, 106th cong. § 2 (2000). 178 see h.r. 29, 40th cong. (1867). 179 see lord gifford debate, supra note 2 (lord gifford discusses the profound legacy of “one of the most massive and terrible criminal enterprises in recorded human history,” i.e., slavery). 180 see muhammad, supra note 2, at 912. see thomas, supra note 3, at 292 (identifying companies created and sponsored by portugal, holland, great britain, spain and france "to carry slaves from africa to the new world"). specifically, the portuguese established the cacheu company and the maranhão and pernambuco companies in the seventeenth and eighteenth centuries, respectively. id. holland owned the west india company, and britain established the royal adventurers, the royal african company, and the south sea company. id. in the eighteenth century, spain possessed "many companies with a privileged status." id. france founded a number of guinea companies after the 1670s, when colbert established the first one. see also muhammad, supra note 2, at 931–32. 181 “[t]he king, as the fountain of justice and equity, could not refuse to redress wrongs when petitioned to do so by his subjects.” greg weeks, private law litigation against the government: are public authorities and private actors really ‘the same’?, 68 un. s. wales res. series 1, 4 (2010). indeed, it is argued by scholars based on what seems to be adequate evidence that the expression “the king can do no wrong” originally meant precisely the contrary to what it later came to mean. id. “[i]t meant that the king must not, was not allowed, not entitled, to do wrong . . . .” id. it was on this basis that the king, though not suable in his court (since it seemed an anomaly to issue a writ against oneself), nevertheless endorsed on petitions “let justice be done”, thus empowering his courts to proceed. id. see also alexis blane, note, sovereign immunity as a bar to the execution of international arbitral awards, 41 n.y.u. j. int'l l. & pol. 453, 460 (2009). 182 weeks, supra note 181, at 3. 183 see shelton, supra note 5, at 267–68. 184 see united states v. le jeune eugenie, 26 f. cas. 832, 847 (d. mass. 1822). 176 the trans-atlantc slave trade vol. 3:2 benefit financially from their historic association with them, survive today.185 thus, there is a foundation for the exercise of jurisdiction over nation-states or other legal entities complicit in the trans-atlantic slave trade. the historic nuremberg international military tribunal,186 the international criminal tribunal of the former yugoslavia,187 the international criminal tribunal of rwanda,188 and the newly-established international criminal court189 permit charges against and punishment of individuals for crimes against humanity, thereby creating a form of subject matter jurisdiction.190 because subject matter jurisdiction determines the types of cases a court can hear, these criminal tribunals limited their authority to crimes against humanity. although none of these tribunals exempts individual actors who commit these crimes in their governmental capacity,191 there is no precedent under customary international law that allows complainants to charge sovereigns with criminal offenses.192 1. territorial jurisdiction the legal nature of the trans-atlantic slave trade is unique in several ways. first, the international community’s commission of crimes against humanity spanned four centuries. second, the governments involved in the trade possessed a peculiar racial justification for their systematic degradation of dark-skinned people in general, and blacks and africans in particular.193 finally, the international community and lack of action to address the vestiges of the trans-atlantic slave trade are unmatched. such unprecedented crimes against humanity and unparalleled moral and social degradation require an extraordinary response by the governments involved, through admission, apology, and reparations.194 jurisdiction over nation-states accused of crimes against humanity, as enumerated in the charter for the nuremberg military tribunal,195 the international criminal tribunal for the former 185 see verdun, supra note 1, at 639. 186 see charter of the international military tribunal, supra note 75. 187 “the international tribunal shall have jurisdiction over natural persons pursuant to the provisions of the present statute.” statute of the international criminal tribunal for the former yugoslavia, art. 6 (1991), available at http://www.icty.org/x/file/legal%20library/statute/statute_sept09_en.pdf. “a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present statute, shall be individually responsible for the crime.” id. at art. 7(1). 188 “the international tribunal for rwanda shall have jurisdiction over natural persons pursuant to the provisions of the present statute.” s.c. res. 955, art. 5, u.n. doc. s/res/955 (nov. 8, 1994). “a person who planned instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present statute, shall be individually responsible for the crime.” id. at art. 6(1). 189 see rome treaty statute, supra note 112. 190 see statute of the international criminal tribunal for the former yugoslavia, supra note 187, at art. 5. see also statute of the international criminal tribunal for rwanda, supra note 188, at art. 3. see also charter of the international military tribunal, supra note 75, at art. 6. see also rome treaty statute, supra note 112, at art. 5. 191 see statute of the international criminal tribunal for the former yugoslavia, supra note 187, at art. 7 (2)– (4). see also statute of the international criminal tribunal for rwanda, supra note 188, at art. 6 (2)–(4). see also charter of the international military tribunal, supra note 75, at art. 7, 8. the official position of defendants, whether as heads of state or responsible officials in government departments, should not be a factor to free them from responsibility or mitigate their punishment. id. at art. 8. 192 there are precedents where governments waived sovereign immunity in order to address an historical injustice in primarily civil matters. however, there is no international precedent, custom or u.n. convention that applies this doctrine against nation-states and their participation in crimes against humanity. see generally weeks, supra note 181. 193 packard, supra note 149, at 17–18 . 194 shelton, supra note 5, at 266. in some instances, particularly where indigenous groups are concerned, negotiated reparations include restitution of lands and resources. 195 see statute of the international criminal tribunal for the former yugoslavia, supra note 187, at art. 5. 2013 columbia journal of race and law 177 177 177 177 177 177 177 yugoslavia,196 the international criminal tribunal for rwanda,197 rome statute,198 and slavery conventions199 is determined by territorial jurisdiction. european governments and some african monarchs financed and promoted the lucrative infrastructure of the trans-atlantic slave trade. the slavers began trading from the shores of africa primarily to the ports of portugal,200 and ended their voyages in other european nations or in the new world.201 the governments imposed taxes and licensing fees202 on the trade and incorporated slaving companies203 that transformed individual, sporadic kidnappings204 from the african shores into an organized, legal enterprise. precedent demonstrates that courts have the ability to exercise jurisdiction over persons/entities within a specific geographic region. thus, should the court or tribunal be unable to exercise personal jurisdiction, it would still be able to exercise territorial jurisdiction over a corporation with an office, headquarters, or direct subsidiary within a specific locale as well as governments complicit in the trade. claimants would be able to pursue a cause of action in a court of their homeland or in the proposed tribunal. territorial jurisdiction over governments that benefitted from the slave trade allows descendants who are scattered throughout the world to establish jurisdiction over the north african, european, and north and south american countries who participated in the slave trade. 2. personal jurisdiction complainants may also assert in rem jurisdiction, personal jurisdiction attaching to property,205 against foreign nations and private companies that have real property or other assets in any of the participating nation-states. these associated assets will be relevant not only for complainants who charge crimes against humanity, but also for those who assert civil claims for financial reparations. although it is possible for the nation-states of the victims to attain jurisdiction over other offending western nations and to adjudicate the charges of crimes against humanity, such jurisdiction presents an arduous legal complication due to these states’ reciprocal guilt or liability. therefore, each national government that participated in the trans-atlantic slave trade would be liable not only to those descendants who are citizens or residents of their country but also to descendants who are citizens/residents of other countries, because shipment of slaves, licenses, and stopovers at different ports were part of most transactions spanning the atlantic ocean. exercising jurisdiction over a nation-state that was not fully developed as a legal entity at the time of the slave trade poses another legal problem. two nation-states, portugal and the united states, were not in existence as independent sovereignties throughout most of the history of the international 196 id. 197 see statute of the international criminal tribunal for rwanda, supra note 188. 198 see statute of the international criminal tribunal for the former yugoslavia, supra note 187, at art. 5. 199 slavery convention, supra note 110. 200 thomas, supra note 3, at 78. 201 id. 202 muhammad, supra note 2, at 905–06. 203 thomas, supra note 3, at 160, 242–43. 204 muhammad, supra note 2, at 892. 205 see jennifer s. martinez, international courts and the u.s. constitution: reexamining the history, 159 u. pa. l. rev. 1069, (2011) (“second, contrary to kontrovich’s assertions, the international slave trade tribunals did not exercise criminal jurisdiction, but rather a type of civil in rem jurisdiction that american admiralty law in the early nineteenth century recognized and that u.s. courts used extensively in cases involving the forfeiture of ships under domestic laws prohibiting the slave trade.”). 178 the trans-atlantc slave trade vol. 3:2 slave trade. portugal was a region annexed to spain until the nineteenth century,206 and the united states was a scattered mass of lands captured by european powers in the north american continent, before evolving into a confederacy and then the union. however, this idiosyncrasy is not an insurmountable hurdle because slavery clearly occurred in these geographical regions under the auspices of governmental authority. despite their historical legal forms, the modern versions of these countries are legally recognized by the international community.207 thus, subject matter jurisdiction of european countries remains a viable option to establish a cause of action for harms incurred as a result of the trans-atlantic slave trade and its legacy. the fact that the slavers kidnapped, shackled, and enslaved africans in slave fortresses208 throughout sub-saharan africa and near the african coasts also makes jurisdiction possible in africa. 3. maritime jurisdiction maritime law, or the law of the high seas, provides another possible basis for jurisdiction. the international community developed maritime law based on the growth of fishing, exploration, and of the trans-atlantic slave trade, which included the trading of goods for slaves and the transportation of slaves. the nearest coastal location of a ship and crewmen is the simplest legal standard for determining maritime jurisdiction. maritime jurisdiction may also be extended to the destinations of the ships’ return voyages to europe or the new world, where they unloaded and further profited from their tortured cargo. the international legal community also considers other factors in determining maritime jurisdiction. these include the nationality of the seamen, the country under whose flag a ship sailed, the nationality of the individual or the country who financed the construction of the ship or the expedition, and any contractual obligations between individuals or countries who have a vested interest in the ship in question.209 complainants who bring civil actions asserting maritime jurisdiction must consider such factors. the crewmembers of slave ships originated in european countries. generally, a ship sailing through the atlantic ocean would hoist the flag of the nation that chartered the ship or of the ship’s private owner. this maritime norm introduced new problems due to the increase in piracy as well as to the differing periods during which each nation abolished slave trading. however, flags are still a factor used to determine the applicability of maritime jurisdiction. a few european nations either financed the ships and related costs of slave voyages through the creation of government-owned, for-profit 206 the portuguese, on the other hand, became independent under the rule of the braganza kings. these events brought an end to the imperial spanish crown’s collaboration with the portuguese merchants in the slave trade to their empire. thomas, supra note 3, at 182. 207 see shelton, supra note 5, at 272. 208 id. at 331 (“ten years later, the portuguese crown built a polygonal fortress above a 200-foot cliff and in the 1560s it was still profitable to portugal. [t]he brandenburgers seized arguin and established a garrison of twenty to serve as an intermediate trading post on the way to headquarters at prince town, on the gold coast.). several ports on the river, such as podar, one hundred miles inland, had from the early eighteenth century belonged to french privileged companies, such as law’s compagnie des indes. id. 209 see generally united nations convention on the law of the sea arts. 22, 92, 94, 110, dec. 10, 1982, 1833 u.n.t.s. 3; united nations convention on the law of the high seas, final act, u.n. doc. a/conf.13/l.58, unclos, 2 u.n.t.s. 146 (1958); acts of the conference for the codification of international law, league of nations doc. c.351m.145 (1930); report of the second commission, league of nations doc. c.230m.i17 (1930); yearbook of the int’l law comm’n, 1st sess., u.n. doc. a/cn.4/13, ch. ii, p. 281 (1949); see also yearbook of the int’l law comm’n, 8th sess., u.n. doc a/3159, vol. ii (1956); united nations conference on the law of the sea, geneva, switz., 24 feb. –27 apr., 1958, u.n. doc. a/conf.13/l.58 (vol. ii), p. 146 (1958); second united nations conference on the law of the sea, geneva, switz., 17 mar.–26 apr. 1960, u.n. doc. a/conf.19/l.15, annex (1960). 2013 columbia journal of race and law 179 179 179 179 179 179 179 corporations or supported individual undertakings of which the sovereign would become a substantial beneficiary. such companies included the royal african company and south sea company of great britain, the portuguese cacheu company, holland’s west india company, the dutch east india company of the netherlands, and the mississippi company of france.210 european insurance companies also insured ships against damage to the vessel, perishable cargo used for trading, and african slaves. these companies created financial and contractual obligations within the international community, increasing the use of the high seas. multi-national treaties, including the treaties of utrecht211 aix-la-chapelle, and the asiento, created additional obligations between european countries concerning navigable waters and slave bartering. these treaties imposed specific territorial boundaries and permissible time spans for the capture of slaves and reciprocal permission to use territorial waters. the slave trade satisfies all factors used to determine traditional maritime law jurisdiction. therefore, the governments and slavers who outfitted and financed slave ships, slave kidnappings, and slave bartering are subject to maritime law. 4. feasibility of an international tribunal for the trans-atlantic slave trade and legacies use of the above-mentioned methods of personal jurisdiction should take place within the context of a single international criminal tribunal to address the legacy of the slave trade. the legal format of an international criminal tribunal would be amenable to those nations who desire to forego the proliferation212 of ordinary civil lawsuits for the same series of transactions with varying victims, circumstances, and geographical regions. an international criminal tribunal would have subject matter jurisdiction over crimes against humanity and genocide similar to that of the international criminal tribunals of the former yugoslavia213 and rwanda.214 this tribunal could also serve as a forum for each participatory nation-state to officially render reparations to the heirs in the memory of the slave trade’s historic victims. the international criminal tribunal of the former yugoslavia and the international criminal tribunal of rwanda permit charges of crimes against humanity against individuals and not nation-states.215 these tribunals do not provide an amenable standard to obtain jurisdiction over deceased slavers, overseers, or officials in their governmental capacity who advanced the slave trade and increased the number of its victims. however, the model of the international criminal tribunals does not pose a 210 by 1600, many dutch captains were sailing annually on their own carreira da mina, often financed by the same men who were founding their great dutch east india company. thomas, supra note 3, at 160, 242–43. 211 muhammad, supra note 2 at 883, n.133. see utrecht treaty of peace and friendship, gr. brit.-spain, july 13, 1719, 28 consol. t.s. 295, 325 (granting britain the “asiento” or contract to import slaves). a few decades later, great britain, france, spain and sardinia, hungary, modena, the republic of genoa, and the united provinces signed the aixla-chapelle treaty concerning the conquests of the new world, primarily the west and east indies. id. at 911–12. the aix-la-chapelle treaty reestablished britain’s monopoly in the international african slave trade by referencing the infamous asiento agreement. id. at 883, n.116 (explaining that an asiento is a spanish term used to define a privilege or contract that the spanish monarch grants in connection with the slave trade). by 1700, it should have been evident, that no chartered company had a future. thomas, supra note 3, at 227. 212 see shelton, supra note 5, at 260. while the barriers to reparations are significant, historical events are the subject of a growing number of legal and/or political claims by groups seeking redress. the proliferation of such demands may represent a global tribute to the strength of human rights doctrine and its moral claim on the international community or the fact that success induces emulation. 213 id. at 286. 214 id. 215 “the international tribunal for rwanda shall have jurisdiction over natural persons pursuant to the provisions of the present statute.” statute of the international criminal tribunal for rwanda, supra note 188, at art. 5. 180 the trans-atlantc slave trade vol. 3:2 serious barrier to potential complainants of the trans-atlantic slave trade because there are methods by which sovereign states may be held legally accountable. over the course of the twentieth century, the united states enacted laws that specifically address inhumane governmental acts. for instance, although the united states government interned japanese persons within its borders under the guise of national security during world war ii, over forty years later it enacted legislation enabling the federal government to pay compensation for such acts to japanese claimants.216 further, the federal government has waived its sovereign immunity, allowing it to be sued in a number of instances.217 5. potential legal claims the united states and other western nations are the primary leaders in promoting democracy and have continued to increase their economic influence throughout the world. these nations also have a steady democratic and financial infrasture which is conducive to enacting legislation that deems their governments accountable for the atrocities of the trans-atlantic slave trade and its legacy. the united states has already set out to rid itself of the legacy of slavery through the thirteenth and fourteenth amendments, the voting rights act, the 1965 civil rights act, and other measures. descendents of slaves who are not american may nevertheless have charges of crimes against humanity and claims against the united states and may also use the alien tort act.218 the act is interpreted as granting aliens the right to sue american corporations complicit in human rights abuses in united states district courts,219 thus obtaining jurisdiction over american private companies complicit in the trans-atlantic slave trade. the united states court of appeals for the second circuit permitted south african victims of apartheid-era injustices, through the truth and reconciliation committee, to sue u.s. corporations who materially benefitted from apartheid.220 the alien tort act may also be used by victims and decendants of victims of the trans-atlantic slave trade and its institutionalized legacy. 216 see generally barkan, supra note 4. 217 see, e.g., alien tort claims act, 28 u.s.c. § 1350 (2006). 218 “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the united states.” id. 219 currently the supreme court is split on the scope of the alien torts act with regard to jurisdiction, human rights violations and private corporations. for a recent example, see kiobel v. royal dutch petroleum co., 132 s. ct. 1738, (march 5, 2012) (granting reargument and requesting supplemental briefing on the question of “[w]hether and under what circumstances the alien tort statute, 28 u.s.c. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the united states.”); see also marcia coyle, supreme court orders reargument in alien tort statute case, legal times blog, mar. 5, 2012, http://legaltimes.typepad.com/blt/2012/03/supreme-court-orders-reargument-in-alien-tort-statute-case.html (the u.s. supreme court on monday ordered reargument in a major challenge involving lawsuits against corporations for human rights violations under the alien tort statute); see also nina totenberg, high court to reconsider major human rights ruling, national public radio blog, mar. 5, 2012, http://www.npr.org/blogs/thetwo-way/2012/03/05/147996648/highcourt-to-reconsider-major-human-rights-case-ruling (the u.s. supreme court said monday that it will hear reargument next term in a major human rights case, raising the specter that the justices might reverse a 2004 ruling that allowed some lawsuits in u.s. courts for human rights atrocities committed abroad). 220 see khulumani v. barclay nat. bank ltd., 504 f.3d 254 (2d cir. 2007) (on appeal from district court’s grant of summary judgment to defendants, the second circuit reversed in part, allowing plaintiffs to argue an “aiding and abetting theory” of liability under the alien tort claims act); in re south african apartheid litigation, 346 f.supp.2d 538 (s.d.n.y. 2004) (decision below granting summary judgment to defendants). see also anc welcomes trc proposals for reparations, south african press assocation, oct. 23, 1997, http://www.justice.gov.za/trc/media/1997/9710/s971023c.htm (“unveiling the commission's rehabilitation and reparation policy proposals at a news conference in cape town on thursday, chairman archbishop desmond tutu said people judged to have suffered human rights violations under apartheid should receive a minimum reparation payment of r17000 annually for six years. he said that, if accepted, this would cost about r3 billion to implement, and a projected 22000 victims would benefit.”); see us court considers appeal against apartheid lawsuit, mail & guardian 2013 columbia journal of race and law 181 181 181 181 181 181 181 the descendants of the slave trade’s victims may petition the proposed tribunal to legally charge western nation-states who actively participated in the enslavement and kidnapping of their ancestors with crimes against humanity, guided by the standards of the rome statute and the slavery conventions. on behalf of these descendants, the governing authority may charge the governments of states of which they are now citizens for the continuation of the slave trade institution, whose legacy has been transformed into institutionalized racism.221 one example of a potential claim is that of a latino american who is the descendant of slaves. the latino american may petition the tribunal to indict portugal and spain for their involvement in the slave trade, which led his ancestors to be captives on the shores of the new world during the seventeeth century.222 latino americans could also have the proposed tribunal issue criminal charges against the united states for continuing the slave trade in its territory, and against spain for its expansion of slavery into cuba, antigua, panama, and other lands of central and south america.223 latinos, specifically, may also have the tribunal issue charges of crimes against humanity for acts of branding, kidnapping, selling, and buying of slaves. black/native americans, west indians, and afro-caribbeans could have the proposed tribunal exercise jurisdiction over various governments by asserting similar charges of crimes against humanity. these three ethnic groups have standing for the tribunal to legally indict great britain, france, and spain for enslaving of their ancestors on the continent of africa and forcing them to the lands of the west indies, the caribbean, and the eastern coast of north america.224 6. issue of standing another legal consideration regarding jurisdiction is whether a potential complainant has proper standing to bring a claim. any individual who has an actual injury or an injury with a reasonable nexus to the offense has legal standing. 225 the historic victims are no longer living and are therefore legally incapacitated and incapable of exercising their rights to institute civil actions against the governments and private companies who financed the slave trade.226 however, under the doctrine of “next friend,” a living relative or guardian who has the best interest of the victim and acts in good faith, may allow the filing of a civil suit or issuance of criminal charges on behalf of the injured complainant.227 standing also exists for slave descendants that are subject to the current form of institutionalized racism that permeates the international community and governs housing, education, employment, and johannesburg, jan. 12, 2010, http://mg.co.za/article/2010-01-12-us-court-considers-appeal-against-apartheid-lawsuit (reporting on the in re south african apartheid litigation case). 221 when slavery ended, it was replaced by a caste system designed to maintain the status quo of the previous two hundred and fifty years—white supremacy. verdun, supra note 1, at 640–41. the caste system was supported by state and local laws, the courts, the constitution as interpreted by the supreme court in plessy v. ferguson, and the american people. id. this wrongful activity, the acts driven by racism to perpetuate white supremacy, is what is being referred to when the term “systematic discrimination” is used in verdun’s article. id. 222 see muhammad, supra note 2, at 892. 223 id. at 904–06. 224 see muhammad, supra note 2, at 909–12. 225 standing and privity are concepts core to state contract and tort law, and generally limit obligations and claims of benefit to those who directly incurred a duty, entitlement, or loss, or those who have a sufficiently close relationship with an original claimant or obligor. david c. gray, a no-excuse approach to transitional justice: reparations as tools of extraordinary justice, 87 wash. u. l. rev. 1043, 1058 (2010) (citation omitted). 226 see supra notes 162–65. 227 see, e.g., in re african-american slave descendants litigation, 471 f.3d 754 (7th cir. 2006) (“and again, if there were a legal wrong, it would not be a wrong to any living persons unless they were somehow the authorized representatives to bring suits on behalf of their enslaved ancestors.”). 182 the trans-atlantc slave trade vol. 3:2 racial profiling. however, one u.s. federal court disagrees with this legal argument228 and supports the dominant society’s historical perspective of individual injury for individual damages,229 without considering centuries of deprived rights, the uniqueness of the crimes against humanity, and indoctrination, which birthed the current form of racial discrimination. yet, the same case that appears to deny plaintiffs standing in recent reparations cases does permit a slim usage of the next friend concept for actual ancestors enslaved.230 this legal opinion is not persuasive due to the same judiciary’s acknowledgment of the wrongs of slavery and the systemic pattern of institutionalized, racial discrimination as a badge or incident of slavery.231 when a pattern of behavior, legislation, and other governmental acts is institutionalized, it is difficult to ascertain individual harm, especially when the acts are repetitive and interwoven within the duties and character of the dominant society. governments tied to the trans-atlantic slave trade may be the best entities to determine standing of initial complainants. the proposed international tribunal would possess a civil and criminal role in adjudicating the atrocities of slavery. although the international criminal tribunal for the former yugoslavia and the international criminal tribunal for rwanda are proposed as prototypes, they both address only the criminal nature of crimes against humanity. though they may award damages resulting from criminal acts, they do not hear civil cases at all. standing for these tribunals is similar to standing in the u.s. in criminal cases: an aggrieved complainant or the legal guardian of a party suffering harm goes to law enforcement, law enforcement helps with gathering evidence, and then a state’s attorney brings charges against the accused. the international criminal tribunal for the former yugoslavia and the international criminal tribunal for rwanda both have a prosecutorial authority which gathers evidence through the office of the prosecutor and seeks an indictment against the accused. the victim may petition the office and be part of gathering evidence against the accused. in both american criminal cases and international criminal tribunals, a victim has a right to petition the court/tribunal for charges.232 because traditional legal procedures are inadequate to properly address civil actions, it is in the interest of justice for the united states and the rest of the international community to establish an international tribunal with power to adjudicate both criminal and civil claims arising from the atrocities of the trans-atlantic slave trade. 228 the ninth circuit in cato denied standing, writing: first, cato proceeds on a generalized, class-based grievance; she neither alleges, nor suggests that she might claim, any conduct on the part of any specific official or as a result of any specific program that has run afoul of a constitutional or statutory right and caused her a discrete injury. without a concrete, personal injury that is not abstract and that is fairly traceable to the government conduct that she challenges as unconstitutional, cato lacks standing. allen v. wright, 468 u.s. 737 (1984). cato v. united states, 70 f.3d 1103, 1109 (9th cir. 1995). 229 see verdun, supra note 1, at 621–22. 230 the seventh circuit wrote: but the district judge accepted that the purported representatives had a right to sue on behalf of their ancestors, and the defendants offer only a perfunctory rebuttal. we shall assume without deciding that some of the plaintiffs are legal representatives of their slave ancestors. these plaintiffs not only escape the objection to standing that the suits seek damages for injuries actually suffered by third parties (the ancestors are no longer third parties, but the real parties in interest, merely represented by the plaintiffs), but have less to prove. they have to prove injury to the ancestors; the trickle-down question is elided. in re african-american slave descendants litigation, 471 f.3d at 762. 231 cato, 70 f.3d 1103. 232 see about the icty, international criminal tribunal for the former yugoslavia, http://www.icty.org/sid/97#sourcesofevidence (last visited aug. 8, 2013) (describing sources of evidence for the icty); see also office of the prosecution, international criminal tribunal for rwanda, http://www.unictr.org/aboutictr/ictrstructure/officeoftheprosecution/tabid/104/default.aspx (last visited aug. 8, 2013). 2013 columbia journal of race and law 183 183 183 183 183 183 183 b. legal difficulty of retroactivity english common law and united states statutory laws generally prohibit the retroactive application of criminal penalties to acts that were not punishable prior to the enactment or recognition of a law, known as ex post facto laws.233 there is also the issue of countries who, during certain periods of time, outlawed slave trading on the high seas but allowed slavery to continue within their borders. this time frame also becomes more complicated because some nations prohibited slave trading earlier than did others. as most descendants of the african/aboriginal diaspora live and to some degree are integrated into western nation-states, it is more practical to use modern, compatible standards of law as the basis for the international tribunal. countries such as the united states, england, france, spain, and portugal share similarities in domestic civil and criminal laws. in addition, these countries also have amicable trade agreements and multi-lateral treaties. thus, it is not solely the united states’ legal system that is proposed to be the paradigm for the tribunal, nor will it necessarily be the primary guideline; it will be a blend of similar standards of other western nation-states as well as international human rights law. as a result, international human rights law provides myriad opportunities to charge crimes against humanity regardless of a nation-state’s law. the rome statute specifically prohibits retroactive application of jurisdiction and charges of crimes against humanity.234 this statute is diametrically opposed to the intent and precedent established by the nuremberg international military criminal tribunal.235 the nuremberg international military criminal tribunal was created in response to germany’s grave human rights violations against european jews. the nuremberg charter reads in part: the following acts, or any of them, are crimes coming within the jurisdiction of the tribunal for which there shall be individual responsibility: . . . (c) crimes against humanity: namely murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated.236 the tribunal maintained the legal authority to prosecute german war criminals who committed past crimes against humanity, even though those crimes had been considered lawful by the german government during that period.237 this aspect of the nuremberg charter, which is directly antonymous to the current rome statute of the international criminal court, thus establishes another legal basis for a separate international tribunal for the atrocities of the trans-atlantic slave trade. the nuremberg 233 see u.s. const. art. i, § 9, cl. 3, §10. 234 see rome treaty statute, supra note 189, at art. 1. 235 see charter of the international military tribunal, supra note 75. 236 id. at art. 6. 237 see barkan, supra note 4, at 14, 284. denazification ended by 1950, and a year later the bundestag restored benefits and rights to government workers who, following the defeat, had been implicated in national socialist crimes. id. those who had served the nazi regime were now viewed merely as employees of the previous government. id. indeed this view of normal government employment meant that forty years later, when eastern europe emerged from communism, "employers" in the third reich—those who had participated in the extermination—would receive state benefits while the nazis’ victims would again struggle to receive recognition. id. for a short period immediately after the defeat, the official view of the nazi regime was of a criminal and an abnormal period. id. denazification had taken place under american supervision, but by 1950 west germany had normalized its past and included the third reich as simply a phase in german history. it would take a generation to question this normalization. id. 184 the trans-atlantc slave trade vol. 3:2 precedent is the preferable standard as it was established to adjudicate crimes against humanity and atrocities specific to the jews of the holocaust. as the suffering of african slaves under the transatlantic slave trade, domestic slavery, jim crow laws, and institutionalized racial discrimination are unique to those of the african diaspora, a tribunal catered to these specific historical atrocities is appropriate and consistent with the purpose for establishing the nuremberg tribunal. advocates for reparations for crimes against humanity committed by european governments and some african monarchs maintain that slave trading was not universally considered lawful, and was perhaps illegal under the custom of international law.238 although the international custom of those nation-states who participated in the slave trade was to recognize the legality of trade, the declaration of the world conference on racism asserts that the trans-atlantic slave trade was in fact a crime against humanity and should always have been considered as such.239 consequently, the slavery conventions that were later created merely codified this international custom, and did not create a new standard for the illegality of slavery and slave trading. under practical legal standards, retroactivity should not apply to the trans-atlantic slave trade and various nation-states’ municipal slavery. the standard for the tribunal combines un conventions regarding retroactivity and the principle that statute of limitations do not apply to crimes against humanity, a use of both un conventions and evolving international custom. the evolving national laws of different nations which the tribunal obtains jurisdiction demonstrates that slavery was inhumane, marginalized specific populations, and created a legacy of great loss to those targeted and an unfair advantage to the dominant society. so regardless of when slavery was abolished on record, there were eras of: the international trade, crossing over with slavery within the borders of individual countries, period of abolishment, new waive of dejure slavery, and institutionalized discrimination. these actions are a continuous stream of harm that arguably is not attenuated so much so that retroactivity would still not apply. the slave trade continued for a significant time following treaties among nation-states, and other efforts to abolish slavery, through illegal slave trading or piracy. additionally, a few sovereigns continued to barter in slaves within their borders well after their own governments abolished the municipal trade. the emancipation proclamation of 1863 historically documented the freeing of slaves in the united states.240 however, black/native americans were held in what amounts to chattel slavery for well over a century after its abolition, and institutionalized racism was legally sanctioned throughout the united states, france, great britain, and other european nations both during and following the abolition of the slave trade. the rome statute only allows jurisdiction over individuals not sovereigns or nation-states. thus the rome statute as applied to the slave trade would only have jurisdiction over deceased slavers, 238 see muhammad, supra note 2 at 916–21. 239 we acknowledge that slavery and the slave trade, including the transatlantic slave trade, were appalling tragedies in the history of humanity not only because of their abhorrent barbarism but also in terms of their magnitude, organized nature and especially their negation of the essence of the victims, and further acknowledge that slavery and the slave trade are a crime against humanity and should always have been so, especially the transatlantic slave trade and are among the major sources and manifestations of racism, racial discrimination, xenophobia and related intolerance, and that africans and people of african descent, asians and people of asian descent and indigenous peoples were victims of these acts and continue to be victims of their consequences. report of the world conference against racial discrimination, xenophobia and related intolerance, supra note 2. 240 see supra note 25. 2013 columbia journal of race and law 185 185 185 185 185 185 185 overseers, owners, transporters, merchants, and perhaps individuals in government. thus, one cannot appropriately use the legal standard of the rome statute regarding retroactivity to address slavery that is directly related to the trans-atlantic slave trade, or the systematic racial discrimination that is its offspring.241 c. applicability of statute of limitations generally, statutes of limitations do not apply to crimes against humanity. laws of many nationstates do not impose statutes of limitations on heinous domestic criminal offenses such as murder and mayhem, which are similar in nature to international crimes against humanity.242 much of the international community views the prosecution of these offenses as necessary to promote and maintain peace and security. similarly, the united nations enacted the convention on the non-applicability of statutory limitations to war crimes and crimes against humanity to internationally codify the same notion.243 however, this convention is only enforceable against state parties who ratified it, subject to any reservations.244 the convention prohibits the application of any statute of limitations to crimes against humanity that are enumerated in the charter of the nuremberg international military tribunal.245 since this tribunal included acts of enslavement and torture, it could therefore apply to the barter and enslavement of africans and native americans in furtherance of the trans-atlantic slave trade. thus, no statute of limitations apply to crimes against humanity that were committed by slavers, overseers, seamen, or government officials who owned, sold, or otherwise transferred ownership of slaves and financed slavery expeditions by issuing licenses, or by nation-states who encouraged, financed, or otherwise acted in their proprietary capacity to benefit from the trans-atlantic slave trade. although the rome statute of the international criminal court prohibits retroactive punishment for crimes against humanity,246 it does not apply the statute of limitations to such charges.247 241 verdun, supra note 1, at 640. 242 see 18 u.s.c. § 3281 (capital offenses may be found at any time without limitation); 18 u.s.c. § 1091(e) (genocide has no statute of limitations under subsection (a)(1)); see also code pénal [c. pén] art. 221-1, 221-2, 221-3 (fr.), available at http://legislationline.org/download/action/download/id/1674/file/848f4569851e2ea7eabfb2ffcd70.htm/preview. murder is the intentional killing of another person, punished by a maximum of thirty years’ criminal imprisonment. id. at art. 362. 243 see united nations convention on the non applicability of staturatory limitations to war crimes and crimes against humanity, nov. 11, 1970, 754 u.n.t.s. 73, available at http://www1.umn.edu/humanrts/instree/x4cnaslw.htm. (“the states parties to the present convention . . . considering that war crimes and crimes against humanity are among the gravest crimes in international law, convinced that the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion of international peace and security . . . .”). 244 id. according to united nations archives a limited number of countries actually ratified this convention for the prepared adoption date. 245 see id., at art. i (“no statutory limitation shall apply to the following crimes, irrespective of the date of their commission: . . . (b) crimes against humanity whether committed in time of war or in time of peace as they are defined in the charter of the international military tribunal, nuremberg, of 8 august 1945 and confirmed by resolutions 3 (i) of 13 february 1946 and 95 (i) of 11 december 1946 of the general assembly of the united nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid and the crimes of genocide as defined in the 1948 convention on the prevention and punishment of the crime of genocide, even if such acts do not constitute a violation of the domestic law of the country in which they are committed.”). 246 see muhammad, supra note 2, at 943. in contrast with the slavery conventions, the inherent anomaly of the rome statute is that it specifically cannot be applied retroactively, although it provides an excellent standard, thus far, for defining crimes against humanity. therefore, the rome statute of 1998 apparently would not apply to the transatlantic slave trade, as a crime against humanity, which occurred over several centuries. 186 the trans-atlantc slave trade vol. 3:2 traditionally, the statute of limitations for civil causes of action runs from the time the claimant knew or should have known of the injury.248 the victims of the trans-atlantic slave trade were tortured and murdered upon any showing of insurrection; these africans had no chance to assert legal claims for the crimes committed against them. 249 slaves had no civil rights to exercise in a land of their captors, who defined and treated them under statutory law as chattel.250 it would be generations before europe’s general population and governments would even marginally accept the descendants of slaves into mainstream society. thus, the slaves had no opportunity to exercise any legal basic rights, especially the right to redress.251 in the 1960s, u.s. officials and citizens refused to recognize or enforce the rights of the africanamerican descendants of slaves.252 succeeding generations made legal strides for education, employment and housing during the civil rights movement in america and availed themselves of the new reality to exercise their rights, despite the possibility of maiming, lynching, or murder. yet, human rights advocacy’s legal and practical effect would not begin to manifest itself until following generations. under the long term and historic circumstances, equitable tolling of the statute of limitations reasonably applies for slavery reparations.253 maritime law presents a narrower standard for civil causes of actions by commencing the statute of limitations at the time the actus reus occurred, regardless of whether the complainant knew of the harm.254 maritime law’s general standard inhibits descendants of the trans-atlantic slave trade from instituting civil suits against the perpetrators of the crimes committed against them. however, just as the convention on the non-applicability of the statute of limitations to war crimes and crimes against humanity refers to criminal offenses, this standard may also be applied to any civil causes of actions that arise from these types of crimes.255 as the causes of actions are a result and sequentially secondary to the 247 see rome treaty statute, supra note 112. the crimes within the jurisdiction of the court shall not be subject to any statute of limitations. 248 see hylton, supra note 97, at 42. 249 muhammad, supra note 2, at 996–97. 250 shelton, supra note 5, at 272. those claiming reparations present several reasons why reparations should be afforded for historical injustices. first, some acts were illegal under national or international law at the time they were committed. the victims have been unable to secure redress for political reasons, because evidence was concealed, or because procedural barriers have prevented them from presenting claims. in such circumstances, they argue that lapse of time should not prevent reparation for harm caused by illegal conduct. 251 id. 252 see barkan, supra note 4, at 16. in the united states, while slavery was defeated, racism remained, and even grew. see also winbush, supra note 27, at 83. 253 see new efforts, supra note 97, at 301. (“the reasons for tolling the statute in such circumstances are reasonably clear. in general, those who attempt to engage in genocidal attacks should not be able to preclude their victims from recovery by threats of violence and active concealment. equitable estoppel and equitable tolling are both available to reparations plaintiffs where the defendant has acted to prevent the filing of a lawsuit, and the plaintiffs have been unable to file through no fault of their own.”) (citations omitted). 254 see uniform statute of limitations for maritime torts, 46 u.s.c. § 30106, pub. l. 109-304, 120 stat. 1511; (established time limit on bringing maritime action for personal injury or death: “except as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose.”); see also 46 u.s.c. § 30508 (d). 255 see convention on the non-applicability of statutory limitations to war crimes and crimes against humanity, supra note 243 (“considering that war crimes and crimes against humanity are among the gravest crimes in international law, convinced that the effective punishment of war crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion of international peace and security, noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes.”). 2013 columbia journal of race and law 187 187 187 187 187 187 187 actual criminal offense committed, it follows that the convention permitted an interminable time span to prosecute such crimes that the convention would also not limit the time one has to claim restitution for such offenses. for example, the united states did not assert a statutory limitations defense regarding the internmentof the japanese.256 the federal government even enacted special legislation years later to address the past wrongs committed against the japanese americans, which included an apology and reparations. it is this precedent that the court cites in cato v. u.s.,257 one of the most recent cases for slavery reparations, which lends credence to the notion that appropriate, municipal remedies are found in the legislature, and not in the judiciary.258 thus, the judiciary is unable to adjudicate slavery and reparation claims against the united states.259 the thirteenth amendment grants congress the constitutional authority to enact legislation to address the slave trade, slavery, and badges and incidents of slavery.260 congressional action is necessary.261 d. legal strategies it is clear that the extensive temporal and geographical span of the trans-atlantic slave trade and the copious entanglement of the international community in the trade impose a moral requirement on the historically injured and their descendants. legal considerations to separate all individual acts of brutality related to the slave trade, from institutionalized racism to racial profiling, do not change the fact of the extensive, legal time frame of a continuous violation of human rights and basic civil liberties that is forever the vestige of the slave trade.262 the united nations’ office of the high commissioner for human rights adopted a resolution titled “the right to restitution, compensation, and rehabilitation for victims of grave violations of human rights and fundamental freedoms.”263 this resolution recognizes the right of those injured by human rights violations to receive restitution, as well as the need to award reparations to those whose 256 see verdun, supra note 1, at 645. the decision to intern and relocate japanese americans was largely based on a military report known as the “final report.” an archival researcher discovered the original version of the final report. this original version had been surreptitiously replaced by a revised and less incriminating version that contained fewer obvious references to race as the basis for the issuance of the civilian exclusion orders and curfew proclamations; the original version came from john l. dewitt, commanding general of the western defense command responsible for issuing the orders. the surreptitiously reviewed final report had been submitted into evidence at the trials to establish that the evacuation and curfews were impelled by military necessity. this new evidence, the original final report, provided proof that the wartime restrictions were based on racial prejudice. (citations omitted). 257 cato v. united states, 70 f.3d 1103, 1109 (9th cir. 1995). 258 see shelton, supra note 5, at 269. 259 id. 260 see u.s. const. amend. xiii, § 2 (“congress shall have power to enforce this article by appropriate legislation.”). 261 see barkan, supra note 4, at 286. in 1989 the situation changed. the u.s. government’s compensation to the japanese americans who were interned during world war ii reawakened african americans’ sense of deprivation and unfairness. 262 see shelton, supra note 5, at 285. given the long period of slavery and the slave trade, the numbers and the abuses involved, it is not surprising that its legacy has been a subsequent century of racism, segregation and denials of civil rights. these are ongoing harms that cannot be separated from the early slave status, which commodified a race of human beings and denied their humanity. 263 commission on human rights res. 127, report of the commission on human rights on the 60th sess., march 15–apr. 23, 2004, u.n. doc. e/cn.4/2004/127. 188 the trans-atlantc slave trade vol. 3:2 fundamental rights are systematically violated.264 the crimes against humanity from the trans-atlantic slave trade are clearly in line with the violations contemplated by the resolution. descendants of the historically injured cannot only institute civil actions as “next friend,” but may bring these suits as survival actions on their ancestors’ behalf. any nation that mechanically and unlawfully changes the biological, ethnic, and cultural heritage of a people and implements the extermination of them, is guilty of genocide265 and liable for any reasonable damages. as a result of the slave trade the biological makeup, cultural identity of descendants of the slave trade has evolved (although arguably it birthed a new strength within dominant society), it was nevertheless initially lost by force—there is no way to go back in time or provide restitution to remedy the intangible harm. those who supported, and were benefitted by, the slave trade fuel the opposition to the reward of reparations. the facts that these harms are theoretically unascertainable and are interwoven in dominant society’s culture form the root of society’s opposition to reparations. true reparations would alter the status quo in mainstream society.266 the historically injured also have tangible, ascertainable claims regarding actual profits gained and labor rendered as a consequence of their enslavement. in the eighteenth century, european nationstates incorporated slaving companies267 specifically designed to further streamline and increase financial prosperity from the slave trade. such government-sponsored companies imposed licenses, taxes and other fees on slavers and other participants in slave trading. these licenses and import and export taxes served to maintain a budget to render salaries to agents of the company, but they primarily benefited european economies. historic victims also have civil causes of actions against the insurance companies that insured ships that supported and were crucial to the slave trade. the insurance companies were an essential element to successful slave bartering in the new world. slaves’ lives were further insured for successful transport to new england during the period of the municipal slavery in the united states. 268 descendants of slaves also have a civil claim against the railroad companies269 that transported their ancestors during the eighteenth and nineteenth centuries in western lands. these companies received tangible profits, including the fees that slavers, overseers, or other businessmen purchased to ensure the slaves’ transport, as well as any insurance they required for protection of their chattel-slaves. 264 theo van boven, the united nations basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, dec. 16, 2005, available at http://untreaty.un.org/cod/avl/ha/ga_60-147/ga_60-147.html. 265 see rome treaty statute, supra note 112, at art. 6. 266 winbush, supra note 27, at 47. 267 see muhammad, supra note 2, at 912; thomas, supra note 3, at 292 (identifying companies created and sponsored by portugal, holland, great britain, spain and france “to carry slaves from africa to the new world.” specifically, the portuguese established the cacheu company and the maranho and pernambuco companies in the seventeenth and eighteenth centuries, respectively. holland owned the west india company, and britain established the royal adventurers, the royal african company, and the south sea company. in the eighteenth century, spain possessed “many companies with a privileged status.” france founded a number of guinea companies after the 1670s, when colbert established the first one). 268 see thomas, supra note 3, at 159, 241, 245, 294, 312, 726, 741, 974. 269 see compl. and jury trial demand, farmer-paellmann v. fleetboston fin. corp., no. 02-cv-1862 (e.d.n.y. filed mar. 26, 2002) (count i-conspiracy, no. 51: “the shipping and railroad industry benefited and profited from the transportation of the slaves. the railroad industry utilized slave labor in the construction of railroad lines. these transportation industries were dependent upon the manufacturing and raw materials industry to utilize the slaves they shipped.”). 2013 columbia journal of race and law 189 189 189 189 189 189 189 banks, too, increased their profits, as they were repositories for the funds, agents of loans, and maintained interest rates that generated additional funds to continue supporting slaving expeditions. they promoted and benefited from the institution, sacrificing innocent human life in the process. one infamous potential claim is based on the forty acres and a mule edict initially decreed to aid slaves’ transition into their newfound freedom. the award of forty acres and a mule is not an adequate remedy in light of the horrific nature of crimes against humanity, nor is it in light of the increase in today’s standard of living, inflation, and the continued racial discrimination that prevent people of color from successfully obtaining real property. still, it is evidence from generations ago of the u.s. government’s admission of guilt and liability to slaves and their descendants, even though the edict was never fulfilled.270 these legal arguments for reparations are valid under international law and within the confines of the u.s. constitution’s thirteenth amendment. the promise of forty acres and a mule would enable historic victims to sue under quasi estoppel.271 the u.s. government promised to issue forty acres and a mule to slaves following emancipation. for the u.s. government to subsequently rescind the offer after slaves’ reasonable reliance on it, violates all notions of fairness, and quasi estoppel would apply to this claim. additionally, the fact that so many slaves worked innumerable hours in harsh phsycial and psychological conditions validly warrants a legal claim for uncompensated wages.272 however, regardless of the availability of valid claims and arguments, no lawyer, reparationist, or human rights advocate can force the international community to fulfill its legal obligation; they can only remind it to adhere to its moral duty. descendants of the trans-atlantic slave trade also have tangible and intangible civil claims they may institute against the international community. most black/native americans are of mixed descent,273 especially with african and native american blood. however, they were categorized as african or negro in order to deprive them of the benefits of their entire heritage. the treaties and land accessions between the united states and other western powers and the natives omitted land distribution to black/native americans. as a result, black/native americans were not compensated for the colonial governments’ takings, and therefore also have a claim for land under native american-u.s. 270 see verdun, supra note 1, at 608. 271 see james h. stillwell, when actions speak louder than words: the case for a quasi-estoppel exception to the statute of frauds, 22 rev. litig. 69 (2003). 272 see verdun, supra note 1, at 608. the moral basis for reparations is simply stated: 1) slaves were not paid for their labor for more than two hundred and sixty-five years, thereby depriving the descendants of slaves of their inheritance; the descendants of the slavemasters inherited the benefit derived from slave labor, which properly belonged to the descendants of slaves; 2) the united states government promised ex-slaves forty acres and a mule and did not make good on that promise. see also shelton, supra note 5, at 287. a related trust theory argues that descendants of slaves were deprived of inheritance because slaves were not paid for the work they did. 273 see verdun, supra note 1, at 640 (at the end of the civil war, many were optimistic about the future of african americans. perhaps the most idyllic prophecy came from a great orator in 1866: “my strongest conviction as to the future of the negro therefore is, that he will not be expatriated nor annihilated, nor will he forever remain a separate and distinct race from the people around him, but that he will be absorbed, assimilated, and will only appear finally as the phonecians now appear on the shores of the shannon, in the features of a blended race.”) (citing 4 philip s. foner, the life and writings of frederick douglass 195 (1955) (quoting frederick douglass, the future of the colored race, n.am. rev., may 1866, at 437–40)). see also warren fiske, the black & white world of walter plecker: the obsessions of a state bureaucrat have virginia's native americans struggling for their identity, style weekly, sept. 22, 2004, http://www.styleweekly.com/richmond/the-black-and-white-world-of-walter-plecker/content?oid=1381080 (“from the grave, plecker is frustrating the efforts of virginia tribes to win federal recognition and a trove of accompanying grants for housing, health care and education. one of the requirements is that the tribes prove their continuous existence since 1900. plecker, by purging indians as a race, has made that nearly impossible. six virginia tribes are seeking the permission of congress to bypass the requirement.”). 190 the trans-atlantc slave trade vol. 3:2 treaties.274 although potential claimants may seek damages in civil court, the proposed tribunal has the advantage of adjudicating civil claims as well as rendering legally binding decisions regarding nationstates complicit with crimes against humanity such as the trans-atlantic slave trade. lending institutions, government-insured mortgage companies,275 and private land owners276 continue to operate under the vestiges of slavery, which manifest themselves today in a new form of racial discrimination. the legacy of slavery includes the continuous deprivation of purchasing, inheriting, or otherwise devising real property, in violation of the equal protection clause,277 the civil rights act of 1964,278 and universal declaration of human rights.279 descendants of the slave trade diaspora also have claims for the american and european governments’ systematic racial discrimination in education and employment. in the united states, such claims for black/native americans and latino americans are supported by the civil rights act of 1964.280 in european nations, claims for deprivation of employment and education are supported by great britain’s race relations act of 1976,281 france’s new criminal code,282 and a myriad of municipal laws in various european nations, depending on slave descendants’ ancestry. internationally, they would be supported by the universal declaration of human rights and the u.n. convention against discrimination in education.283 black/native americans, latinos, and afro-caribbeans also have civil causes of actions for racial profiling. this cause of action, however, is more individualized than other civil claims, due to the direct future impact of the offense, such as the death penalty or incarceration. firstly, these classes have a group cause of action since they fall within a “suspect classficiation.” individually they have claims as well and are more readily available to adjudicate. arguably, government actors who are likely to continue racial profiling result in a higher probability of harm, thus both group and individual claimants have causes of actions. as with any class action, individuals may opt out and pursue individual remedies should they believe their harm is greater or damages would be diluted by group award of damages. the latter would still be able to pursue claims under the jurisdiction of the proposed tribunal. for a class action suit or a suit before the international criminal tribunal, the issue would not be considered ripe, since individual harm is more ascertainable. yet the united states does recognize that constitutional claims exist if the occurrence of profiling is egregious and has the likelihood of repeating itself, thus consistently depriving citizens of their constitutional rights. most western nations guilty of 275 see james h. carr and isaac f. megbolugbue, the federal reserve bank of boston study on mortgage lending revisited, 4 j. of housing res. 277 (1993) (“in each of the boston fed empirical specifications, african americans and hispanics were denied credit more often than otherwise identical whites. the most general specification implies that minorities in the boston area are rejected 56 percent more often than equally creditworthy whites. this result provides the most powerful evidence to date of disparate treatment in application processing.”). see also alicia h. munnell et al., mortgage lending in boston: interpreting hmda data (federal reserve bank of boston, working paper wp-92-7, oct. 1992) [hereafter referred to as munnell et al.]. 276 see 42 u.s.c. §1982 (1978). 277 see u.s. const. amend xiv. 278 see vii civil rights act of 1964 supra note 159. 279 see universal declaration of human rights, supra note 113, at art. 17 (“ (1) everyone has the right to own property alone as well as in association with others. (2) no one shall be arbitrarily deprived of his property.”). 280 see civil rights act, supra note 159. 281 see race relations act, supra note 170. 282 france penal code, supra note 242, at art. 225-1, 225-2, 3. 283 see convention against discrimination in education, may 22, 1962, 429 u.n.t.s. 93, available at http://treaties.un.org/doc/publication/unts/volume%20429/volume-429-i-6193-english.pdf. 2013 columbia journal of race and law 191 191 191 191 191 191 191 racial profiling do not prohibit the practice, and most of the individuals impacted are descendants of the trans-atlantic slave trade diaspora.284 historic victims and descendants’ legal claims are based not only on moral obligation and international convention or custom but also on the concept of equitable relief. monetary reparations will never truly compensate the injured, nor return them to their original state. equitable relief is used to enforce restitution to rectify, to a balanced degree, the harm incurred. therefore, claimants can also institute civil suits based on equitable estoppel. throughout the slave trade and in some municipal cases, judiciaries of the international community admitted that the slave trade was a crime and violated the sense of morality. however, international governments including legislatures and state courts, who were in a legal superior position, enacted and upheld laws which deemed those with african and other descent slaves and determined their progeny to be the same. the u.s. federal government declared them to be 3/5 of a human and not entitled to basic human and civil rights. this deprived slaves and their descendants of their inherent right of redress and access to the civil courts. this legacy of discrimination lasted for centuries and various forms of institutional discrimination continued to deprive these descendants of their rights. thus, the international community, and federal and state governments are estopped from asserting certain legal defenses, such as the failure to state a claim or invoking the statute of limitations.285 this legal admission is a clear basis for estoppel. the international community is estopped to deny its participation, profiteering, and its own admission that this institution was a crime against humanity. another argument for reparations sounds in trusts and estates law, and provides a cause of action that would be sustainable against the estate inheritors of private companies and real property purchased or received as a result of slavery. an inherited estate is subject to any outstanding debts or liabilities. individuals who inherit majority shares or other controlling interest in a corporation historically linked to slavery would be accountable for providing a fund or separate trust designated to pay potential claimants. some american states have required banks, railroads and similar companies to disclose their historic affiliation with the slave trade industry whether under the guise of insurance underwriting, sales, advertisement and profits. the latter is distinct from a claimant’s civil cause of action against an estate of an individual slaver’s estate, which is likely insolvent or nonexistent. however, many members of society have continued to benefit from historical inequities based on historical injustices against the descendants of slaves at the behest of government and the willingness of private actors. however, the uniform probate code provides few exceptions to the statute of limitations regarding estates based on the discovery of assets.286 e. legal arguments opposing reparations the primary argument of opponents of reparations is that whites today are not slavemasters, as their forefathers were. although many of their ancestors were slaveholders, overseers, or traders, the descendants did not engage in such activities and the international community cannot validly order them to pay reparations.287 284 see amnesty international, threat and humiliation: racial profiling, domestic security, and human rights in the united states, at 1 (oct. 2004), available at http://www.amnestyusa.org/pdfs/rp_report.pdf. 285 muhammad, supra note 2, at 917–22. 286 see uniform probate code (1969) §§ 3-802, 3-803, available at http://www.uniformlaws.org/shared/docs/probate%20code/upc%202010.pdf (last updated february 11, 2013). 287 see richard a. epstein, the case against black reparations, 84 b.u.l. rev. 1177, 1188 (2004) (over 300,000 northerners, many of whom were black, were killed during the civil war in the successful effort to end slavery. their 192 the trans-atlantc slave trade vol. 3:2 however, just as black/native americans and others have inherited the burdens of a legacy of institutionalized racism and discrimination that still permeate nearly every aspect of life’s activities, whites have inherited the privileges. because the members of dominant society claimed the benefits of the slave trade and its legacy for themselves and their children in estates and wills while they deprived slaves and their descendants of basic liberties and the right to self-determination, they owe a debt of reparations.288 nevertheless, the taxpayers are not bearing the burden of the current civil lawsuits. plaintiffs are filing current civil actions against specific corporations for direct historical wrongs to their ancestors. proposed funds monitored by nation-states government have not been established and may become an issue at that point in time. however, whites are not the only hard-working americans, south americans or europeans. black/native americans, native americans, and other descendants of the african diaspora who have steady employment currently pay taxes on their income and property. thus future funding for established claims would not be placed only on whites should the government fail to earmark sufficient funds to pay for reparations. detractors of the reparations movement contend not only that current whites did not enslave the ancestors of the descendants of the african diaspora, but that some ancestral whites actually helped free slaves. some even state that whites gave black american and latino american slaves’ freedom. history has demonstrated repeatedly that freedom is not given. people have died, fought in wars, strategized, and negotiated freedom. the same dissenters do not acknowledge that black/native americans fought and were slaughtered in the battlefield by members of the confederate south for a freedom not realized.289 history records disclose that others passive-aggressively fought their slavemasters by poisoning, grinding up broken glass into fine powder and integrating it in the slavemasters’ families’ meals. still many slaves did what they could and stole away into the night, staving off slave-hunters, former slavemasters, local law enforcement, tredging for days at a time, hiding in the swamps of the undeveloped south and fighting off animals which desired to feed from their weary flesh.with lack of literacy many slaves escaped to the north. at times, a few whites would help along the way providing a place to sleep in a barn or shed, or even helping to look out to capturers. but north america and south america never gave black/native americans, native americans, and latino americans freedom. many slaves searched for embodiment of liberty, even if it was with their last breath. strikingly what they found in the north, with the exception of primarily white quakers, was that slavery existed there too. even with the emancipation proclamation, the president and the u.s. descendants could think that they have paid reparations in blood and do not wish to go further. next to them stand vast numbers of individuals who regard themselves as wholly unrelated to the wrongs in question and are asked to foot some fraction of the bill, while their own grievances remain largely unredressed.). see feagin, supra note 33, at 51 (“since there are close historical connections between past and present white privileges and black disabilities, it is not surprising that most whites wish to deny the historical linkages with such phrases as “my family and i never owned slaves” or “slavery happened hundreds of years ago—get over it.”). see verdun, supra note 1, at 628 (opponents of reparations to african americans argue that living whites have not injured living african americans; the wrongs of slavery were committed by individuals who have been dead for years.). 288 see verdun, supra note 1, at 637–38. 289 see new efforts, supra note 97, at 315 (“another claim alleges that whites expiated the sin of slavery by fighting the civil war. quite apart from ignoring that southern whites fought the civil war to perpetuate slavery, this argument ignores president lincoln’s quite categorical statement that the union side did not fight the civil war only to abolish slavery.”) (emphasis in original). 2013 columbia journal of race and law 193 193 193 193 193 193 193 government did not give freedom. a new form of debt slavery emerged in the form of working for former slavemasters through sharecropping,290 black codes and jim crow. slave revolts were frequent in the west indies and portions of south america, namely brazil and argentina. one of the most popular slave revolts was led by toussaint l’overture in haiti. these revolts alarmed the white colonists to the reality that slavery became impractical to maintain fiscally, not that slavery was morally wrong. in brazil, former slaves and free-born africans created communities for their own protection and to help runaway slaves to freedom. those who make arguments that whites at some point helped slaves, speak merely of a minority and do so with the assumption that potential claimants are suing individual white americans. it cannot be over-emphasized that the past and potential civil lawsuits are aimed at corporations, funds, government and insurance companies. these are financial entities who have a documented, longstanding establishment and promotion of the trans-atlantic slave trade and its vestiges.291 another legal argument of reparation’s opponents is that since historic victims were considered chattel they had no rights to legal redress.292 survival actions by slave descendants as next friend on behalf of historic victims would not be viable legal claims for reparations because chattel cannot possess inalienable rights.293 opponents also argue that a civil claim for reparations would be void for over-inclusiveness. descendants who have not been directly discriminated against or who are in the upper middle class or wealthy would reap the financial benefits of restitution.294 however, the goal of restitution is to compensate for an entire institution of slave trading and a governmental system based on discrimination against people of color, and, if achieved, restitution would inevitably benefit the few members of the plaintiff class who might appear not to be directly harmed. over-inclusiveness would not detrimentally interfere with the ultimate goal of redressing the lack of equality that equilibrium, which directly resulted from the slave trade and its legacy. another legal argument against the award of reparations is that some blacks owned slaves. often times, these black purchasers acquired slaves, such as members of their family who may not have been freed upon the death of their slavemaster, in order to free them.295 these instances were rare and did not substantially contribute to slavery, nor were they related to the inception of the trans-atlantic slavettrade. such an argument does not detract from the overwhelming legal support for appropriate restitution. reparations’ opponents are quick to argue, too, that african monarchs participated in the transatlantic slave trade.296 this is a fact that historians and human rights advocates cannot avoid.297 north 290 waterhouse, supra note 125, at 218. 291 see new efforts, supra note 97, at 310 (“as historian john hope franklin noted in an open-letter reply to horowitz, this is an odd claim. most people would not dispute that western powers, most notably spain, great britain, france, and the united states, began and promulgated the slave trade. slavery was made possible through a practice of colonization in which the european powers subjugated indigenous africans and engaged in a policy of underdevelopment.”). 292 see shelton, supra note 5, at 281. 293 see shelton, supra note 5, at 27. 294 see gray, supra note 8, at 1062. 295 see verdun, supra note 1, at 633. 296 see henry louis gates, jr., ending the slavery blame-game, n. y. times, apr. 22, 2010, http://www.nytimes.com/2010/04/23/opinion/23gates.html?ref=opinion (“while we are all familiar with the role played by the united states and the european colonial powers like britain, france, holland, portugal and spain, there is 194 the trans-atlantc slave trade vol. 3:2 african nations’ complicity in tribal raids and kidnappings does subject them to suit by their own descendants.298 however, african nations’ liability for their participation does not lessen the evidence of europeans’ development of and financial profiteering from the slave trade, or hamper the formulation of a case for international reparations. some descendants of historic victims from the trans-atlantic slave trade oppose the award of reparations due to its inadequacy, and consider it an insult to the incomparable atrocities of the slave trade.299 this view is also fueled by the notion that the acceptance of redress would strengthen the stigma of victimhood.300 although this argument requires consideration, it is more feasible for an injured party to receive compensation for a wrong than to reject compensation out of pride in victimhood. although the sentiments fueling these descendants’ opposition to reparations are natural, they do not diminish those of the great number of descendants who would appreciate some form of restitution for centuries of slavery and racial discrimination. further, for those descendants of the historically injured who do not desire reparations, the answer, as it was for the japanese and those of japanese descent who were resistant to the award of restitution for internment, is simple and clear: one is not required to accept it.301 one does not possess the legal justification to interfere with those who desire justice. as with a class action lawsuit or a human rights tribunal, one has the option of waiving the benefit of the outcome, even as a party to the suit. another legal argument against reparations is that, due to the length of the slave trade, no sufficient amount of funds is readily available for distribution to the descendants of historic victims.302 as a result, the advocate of this argument concludes award of reparations is simply an impractical legal remedy. finally, opponents of reparations contend that restitution, at least in the united states, was made at least a century ago to black/native americans, through the establishment of the freedman’s bureau in 1865, the promise of forty acres and a mule, civil rights legislation, and affirmative action programs.303 however, these programs and laws cannot truly be considered reparations because they were not universally or effectively enforced, and thus produced the opposite effect of their purpose: a disparate very little discussion of the role africans themselves played. and that role, it turns out, was a considerable one, especially for the slave-trading kingdoms of western and central africa. these included the akan of the kingdom of asante in what is now ghana, the fon of dahomey (now benin), the mbundu of ndongo in modern angola and the kongo of today's congo, among several others . . . .the sad truth is that without complex business partnerships between african elites and european traders and commercial agents, the slave trade to the new world would have been impossible, at least on the scale it occurred.”). 297 id. (“advocates of reparations for the descendants of those slaves generally ignore this untidy problem of the significant role that africans played in the trade, choosing to believe the romanticized version that our ancestors were all kidnapped unawares by evil white men, like kunta kinte was in roots.”); see also shelton, supra note 5, at 285. 298 muhammad, supra note 2, at 893. raids on neighboring tribes or villages supplied a constant flow of slaves. 299 see higginbotham, supra note 10, at 454. 300 shelton, supra note 5, at 274 (“some view reparations for historical injustices as the triumph of a victim psychology that blames everyone else for today’s problems, saying that ‘[w]hat is alarming is the extent to which so many minorities have come to define themselves above all as historical victims.’”). 301 see chad w. byran, precedent for reparations? a look at historical movements for redress and where awarding reparations might fit, ala. l. rev. 599, 602–03 (2003). 302 see shelton, supra note 5, at 288. an argument frequently made is that the costs of implementing redress would be excessively high. 303 id. those who oppose slave reparations assert that the violations occurred too long ago, and were remedied through emancipation, civil rights legislation and affirmative action. 2013 columbia journal of race and law 195 195 195 195 195 195 195 impact in education, economics, and politics.304 in any society, no single variable is the determinant of cultural and economic oppression, yet the law does not require evidence of substantial harm or causal linkage to the harm by an act to be the sole relevant contributing factor. the acts of the trans-atlantic slave trade and its vestiges are significant causes of the present condition of a majority of black/native americans and latinos. iv. additional legal considerations a. identifying descendants of the trans-atlantic slave massacre the united states of america, several european countries, and african monarchs305 all participated in the trans-atlantic slave trade, resulting in new cultural and racial identifications among various african descendants. a typical “black” american or “african” american is simply not just “black” or “african.” black/native americans are historically composed of two to three ethnic groupings: african, native american, and european, which likely includes british or french heritage.306 west indians have similar ethnic backgrounds of african, native american, and french citizens. thus the legal question arises of who exactly comprises the racial class of persons that should receive reparations. the class is narrowed to the descendants of slaves, but the process of identification is difficult. during earlier colonial periods, anyone with a drop of african or native american blood would be deemed “black”, “negroid,” or “native american,”307 but there were also people of color who were extremely light-skinned and, despite the derogatory references to the higher yellow skin tones of black/native americans during slavery through the early twentieth century, who could “pass” for white. these descendants of the slave trade suffered the psychological damage of racism,308 but they necessarily did not suffer blatant jim crow or black codes discrimination because it was difficult to discern that they were people of color.309 one simplistic manner to ascertain the identities of the descendants of slaves, although not absolute, is to study the genealogical charts or undergo dna testing. the former may not be possible 304 id. at 286. despite these on-going effects of slavery, governments have shown hostility toward affirmative action as a means of rehabilitation or remediation for past and present discrimination. as a result, many slave descendants lack adequate education, safe and decent housing, full participation in the political process, and equal economic opportunity. 305 these countries include the united kingdom of great britain, the united kingdom of denmark, the kingdom of spain, the portuguese republic, the kingdom of sweden, and the federal republic of germany. see muhammad, supra note 2, at 887, 903, 904. 306 verdun, supra note 1, at 639 (a majority of the people of the west indies are descendants of black africans who were brought to the islands as slaves to work on sugar cane plantations. most of the rest are of mixed black and european ancestry, or have british, dutch, french, portuguese or spanish ancestry). 307 virginia’s racial integrity act of 1924 led to many states following suit with their own anti-miscegenation laws; see generally j.r. browning, anti-miscegenation laws, 1 duke l.j. 26 (1951). 308 packard, supra note 149, at 97. principally it meant cutting oneself off from family and community and the security those resources brought. furthermore, such people—meaning those aware of the african ancestry but deliberately passing to escape the social penalties black classification brought in america—were constantly at risk of their legal classification being discovered. 309 id. when laws defining racial status were written in the colonies of the deep south, any black genes—no matter how few—meant you were black. caucasian appearance was irrelevant if public knowledge existed of one’s black ancestry. if such a person’s appearance was caucasian, and assuming the black heritage was successfully hidden that person could “pass” as white if he or she chose to do so. but such passing generally involved colossal sacrifices for the person affected. principally it meant cutting oneself off from family and community and the security those resources brought. furthermore, such people—meaning those aware of the african ancestry but deliberately passing to escape the social penalties black classification brought in america—were constantly at risk of their legal classification being discovered. 196 the trans-atlantc slave trade vol. 3:2 for many descendants of slaves, since slaveholders often did not maintain accurate, or any, records of the slaves they owned. the latter, however, is feasible, especially in light of the open argument that the slave trade deprived the slave descendants of ancestral memory and that there is a great yearning for many to know their historical heritage. by satisfying african descendants’ requests for dna identification, the national human genome center at howard university310 provides them with an aspect of nonmonetary compensation—the descendants’ knowledge of their genetic ancestry. so the issue is not only of harm, but linking the harm to racial identity remains. this factor is intertwined with the legal notion of standing as prominently highlighted by those who oppose reparations. problems with regard to racial and ethnic identity occur due to ancestral mixing, though often only one aspect of their lineage is highlighted in government categorization—“african american.” though native americans initially did not mix with different racial and ethnic groups, as time passed, the comingled with african slaves as the former would sometimes protect the latter from european slavers.311 the other groups to consider are africans, south americans, and central americans who have migrated to the west during the twentieth and twenty-first centruries, likely from impoverished lands affected by colonialism.312 they trekked to the west voluntarily under student or work visas. those who remain an extended period of time consequently gain citizenship status and are ushered into the government-sanctioned african american and hsipanic groupings. in order to make this distinction of those black/native americans and latino americans of the african diaspora from recent migrants, both groups may have to disclose their family history, identity, and dna. not only will black/native americans, west indians, and latino americans likely purge personal family information, one must consider who is a descendant of slaves. presuming that claimants for reparations pursue a viable cause of action for slavery, the burden remains whether their particular ancestors were slaves. since colonists and early america deemed africans and black/native americans as slave chattel, accurate records were not kept. the marriage and genealogy of slave property were not slave-owners’ and slave traders’ priority in the agricultural south. even so, during american slavery some black/native americans were free men. some blacks are progeny of those from the coasts of north and west africa who traveled and explored freely to the americas, yet at different points of u.s. history, both freemen and freedmen were likely captured and recaptured into slavery. nevertheless, some rich free blacks existed simultaneously as their slave counterparts in america. historically, many black/native americans in america are of mixed descent with white ancestry, some more than others. depending on the level of intermixing, those deemed black american by the “one drop” rule would “pass” for white. many of these black/native americans used this racial ambiguity to their advantage and staved off potential discriminatory harms that their darker counterparts were unable to avoid. one may argue that they did not suffer harm during these racially turbulent 310 see how. u. nat’l human genome center, http://www.genomecenter.howard.edu/intro.htm (last visited april 8, 2013). 311 see encyclopedia of native american tribes 257 (3d ed. 2006). in the early 1800s the seminole were friends of other runaways-escaped african american slaves. they hid the slaves and welcomed them into their families. 312 see epstein, supra note 287, at 1189 (the second problem arises on the plaintiff side of the equation: who should get the dollars in question? any state-wide program is haunted by the problem of migration, which makes it likely that much of the cash would go to the wrong people.). 2013 columbia journal of race and law 197 197 197 197 197 197 197 decades. thus, even though they are categorically black american and descendants of slaves, their claim to restitution is arguably weaker and possibly void. yet, it is valid to argue that those black/native americans who passed for white suffered a different historical harm. these individuals had to deny their identity to avoid random lynchings, rapes, and degrading racial laws that subjugated them to inhumane treatment by white society. black americans of the united states must address this social and legal issue from the vantage point of the nineteenth and tentieth centuries, a time period that presents a festoon of considerations. the u.s. census recorded mixed black americans who were not first generation bi-racial, but had multiple ethnic backgrounds, as mulatto, a separate ethnic designation313 from older terms of negro and black american. the federal government altered the latter racial designation in succeeding decades beyond the “one drop rule.”314 different, non-white ethnic groupings at different times of american history were categorized as black american. for instance at one point in history virginia’s legislature categorized chinese americans as black americans. in the alternative, varying “races” were categorized as whites at different points of u.s. history.315 in identifying descendants of the african diaspora, issues of allocating the burden of proof between individual, state and federal government must be assessed. primarily is the administrative effort in determining costs, privacy issues and fraud prevention are all factors which undergird identifying descendants of the trans-atlantic slave trade. these findings will then be used to formulate the criteria of who has standing on an international level and in the proposed international tribunal. once state and national governments reconcile who is to receive reparations, opponents argue additional administrative issues remain.316 for instance, a fund must be created to administer the compensation. one must determine whether corporate entities establish their own funds for individual losses or to provide accounting to their local and national government and transfer the monies to the government for distribution. as for the federal and state government, their primary liability is furthering the slave trade and receiving pecuniary benefits through taxes, imports and licenses.317 afterwards, these governments maintained de jure segregation and deprivation of human rights. thus the governments must establish a separate fund for their role in slavery. using the proposed international tribunal, various countries would create a fund in a designated depository. each country involved may adopt an agreed upon application to its citizens and have the secretary of the commission establish in their homeland register the paperwork. additional issues of applications of descendants to countries and corporations who sponsored the trans-atlantic slave trade 313 elizabeth martin et al., u. s. bureau of the census, ctr for survey methods research, context effects for census measures of race and hispanic origin 3 (1990), available at http://www.census.gov/srd/papers/pdf/sm9001.pdf (“race was first measured as a separate item in the 1850 census, using the categories, ‘white,’ ‘black,’ and ‘mulatto,’ which were also used in 1860. in the 1870 and 1880 censuses, categories for ‘chinese’ and ‘indian’ were added, and in 1890, ‘japanese’ was added. the interpretation of race as a biological (yet observable) characteristic in these early censuses is clear.”). 314 id. 315 id. (in 1940, this rule was changed, and mexicans and other persons of "latin descent" were to be classified as "white" unless they were definitely of some race other than white. the rule was changed again in 1980, and hispanic entries, such as puerto rican and mexican, were left in the "other race" category). 316 see muhammad, supra note 2, at 906. if the recipient is to be some corporate entity, as robinson and others suggest, how can its representativeness and accountability be determined? if the body is a development fund, who would control it and how would the decision be made? robinson has suggested that philanthropic agencies be the grantees, but which ones and to whom would they be accountable? 317 id. 198 the trans-atlantc slave trade vol. 3:2 would pay those of the african diaspora who live in other countries. recipients would then receive multiple payments should nexus of country, corporation, slavery and harm proven. this will likely take years to achieve, and once established the question remains who supervises the government fund. in the past the federal government mismanaged funds that were earmarked for native americans for past harms.318 therefore, it is reasonable to have concerns that such fiscal corruption is likely to occur again. however, the federal government, depending on how the fund is established may create a committee comprised of budget analysts and fund managers and then reserve a set number of appointees to be selected by persons who are scheduled to receive payment.319 in poorer countries in the west indies, and central and south america, such suggestions are difficult to implement where government corruption may be rampant and democratic governance is not upheld.320 to minimize financial corruption, the most fiscally sound manner to distribute the funds is to provide application forms for those who believe they are due reparations and once confirmed the government may distribute the funds directly to those individuals. this minimizes funds earmarked for reparations from taking an extraordinary amount of time to be disbursed and unnecessarily spent on excessive overhead. b. forms of legal reparations the proposed remedies to address the trans-atlantic slave trade and its legacy vary from tangible and intangible, just like the injuries they are designed to redress. each proposed remedy is an introductory measure aimed at remedying the harm of the slave trade and its residual effects. tangible remedies include, but are not limited to, financial compensation from corporations and insurance companies in western nation-states, awards of the current equivalent value of forty acres and a mule, a trust fund for slave descendants of the slave trade diaspora, mortgage loan forgiveness, student loan forgiveness, land accession, and comprehensive health care. private corporations, including insurance companies, were significant participants in the slave trade. some of these companies have evolved into mortgage insurers and vehicle insurers, and some remain in their traditional capacity of insuring the railroad companies, equipment, and facilities historically used to promote municipal slavery in north america. neighborhoods that experienced demographic growth comprised of persons of color, especially black, continue to exist despite generations of urban deterioration compounded by the lack of investment from benefactors of the overall economy as well as municipal neglect. they have historically been and still are considered the ghettoes, whether in the inner cities or parts of the impoverished deep south, in states like louisiana, mississippi, and alabama. impoverished areas of england and france are primarily populated by afro-caribbeans due to racial discrimination.321 318 see national archives and records administration, letters sent, 1800–24. letters sent by the revenue office, department of the treasury, relating to the treasury business of the war department, 1794–96. letters received, 1800–23. microfilm publications: m15, m74, m271. 319 new efforts, supra note 97, at 298 (if reparations were not to be paid to individuals but to groups, it would create the problem of determining who would “represent” african americans and the legitimacy of such a group). 320 see transparency int’l, global corruption report, 77–79, 115–16, 138–46, 253 (2007), available at http://issuu.com/transparencyinternational/docs/global_corruption_report_2007_english/1?mode=a_p. 321 see steve garner & gargi bhattacharyya, poverty, ethnicity and place, joseph rowntree found. 9, 10, 16 (2011), available at http://www.jrf.org.uk/sites/files/jrf/poverty-ethnicity-place-full.pdf; see also equality at work, supra 2013 columbia journal of race and law 199 199 199 199 199 199 199 today, those who live in geographical regions linked to historical discrimination also suffer from insurance companies’ impositions of higher premiums and other inflated rates based on the race of the insured or on the race of residents within a particular geographical region. as discussed, the u.s. government officially promised former slaves in the nineteenth century forty acres and a mule, which it failed to fulfill. the united states therefore deprived historic victims of lawful property as well as any succeeding generations who likely would have inherited such estates. a proposed trust fund is also a feasible form of restitution, aimed at creating financial security for current and foreseeable future generations and thus increasing slave descendants’ opportunities to advance in society and to build more stable communities. in the plainest sense, trust funds are used as economic foundations for beneficiaries who, in their current state, are unable to fully manage or distribute tangible or intangible wealth. an example of this method of restitution is the narf322 fund for native americans, although in this instance the u.s. government is the trustee, instead of a committee or commission chosen by native americans to represent their interests and goals before the federal government. the most reasonable way to create and build a proposed fund for slavery’s descendants is for members of the international community to contribute an initial monetary amount followed by subsequent annual deposits for an indefinite period of time. however, the international community has neglected to make universal amends, a failure that presumably creates a general mistrust between the proposed beneficiaries and governmental contributors. thus, a pattern of trusts should be set up under international regulation, but organized and supervised by commissions especially created to distribute funds. this organization of the trusts would be similar to the set of committees and commissions who maintained trust funds for holocaust victims and their descendants who negotiated settlements with swiss banks and the german government.323 another reconciliatory measure would be for nation-states whose sovereigns fund mortgages to forgive mortgage loans. this type of restitution is a direct form of compensation from which buyers from the early twentieth century and twenty-first century would benefit. mortgage lenders who refused to offer financing to potential buyers during the twentieth century and those who have practiced racially discriminatory lending to mortgage applicants in violation of the civil rights act of 1964 would be liable.324 student loan forgiveness by united states government and other western nation-states that sponsor similar funding would serve to reconcile generations of systematic discrimination in education. although black/native americans and other descendants of the slave trade diaspora originally lacked access to education based on the lack of facilities or general prohibitions, succeeding generations during note 117; see also international labor conference, june 3–19, 2003 report of the director-general time for equality at work 18, 90 (2003). 322 see memorandum of understanding, supra note 43. 323 barkan, supra note 4, at 62–64. 324 see board of governors of the federal reserve system, 88th annual report (2001), available at http://www.federalreserve.gov/boarddocs/rptcongress/annual01/ar01.pdf (overall, the denial rate for conventional, that is, non-government-backed home purchase loans, was 27 percent in 2000. the rate rose steadily from 1993 through 1998 but has now fallen slightly (about 1 percentage point) for the second consecutive year. denial rates for conventional home purchase loans in 2000 were 45 percent for black applicants, 42 percent for native american applicants, 31 percent for hispanic applicants, 22 percent for white applicants, and 12 percent for asian applicants.), http://www.federalreserve.gov/boarddocs/rptcongress/annual01/ar01.pdf (last visited december 10, 2012). see also monique w. morris, naacp report, discrimination and mortgage lending (2009), available at http://www.naacplv.org/lending.pdf. 200 the trans-atlantc slave trade vol. 3:2 the nineteenth through twentieth centuries have been prevented from obtaining the economic means to pay for such higher learning once qualified. this is especially apparent in america, where most qualified students have no alternative but to indebt themselves to an exorbitant amount of student loans from the same government that created the economic, employment, and educational disparity that led to the need for such economic assistance in the first place. historic victims and their descendants also have a valid claim for land accessions. slaves were considered personal property and not a part of society. they and their descendants were deprived of land before, during, and after slave trading and municipal slavery. many were, and many continue to be, forced to reside in the unkempt, poor neighborhoods of most western nation-states. the possession of real property is universally accepted as the foundation of any sovereignty or community.325 although descendants of the slave trade diaspora are somewhat assimilated in mainstream western societies, discriminatory practices continue to prevent them from enjoying social and economic equality. some have argued that the u.s. government did not give descendants of slaves in america the option of returning to their homeland through a form of financial settlement or allow them to settle themselves on land acquired from colonial territories, especially during the eigteenth through twentieth centuries, during which much of the western international community committed crimes against humanity against black/native americans, native americans, and africans. instead, descendants were “declared” free by the emancipation proclamation and citizens by the fourteenth amendment in the united states. currently, there remain slave descendants who still desire land accession in order to form a true identity and foundation for economic equality in relation to mainstream society. comprehensive health care is designed to reconcile the period from the slave trade through the twentieth century during which slaves and their descendants had no health care. during reconstruction, black/native americans were forced to visit segregated hospitals that had inadequate facilities and equipment, resulting in a high mortality rate.326 in the united states, many women of color were sterilized through government-sponsored programs that surgically injected young woman of color with norplant and provided no federal assistance for its removal, resulting in involuntary sterilization.327 this form of genocide violates the rome statute’s provisions against the systematic elimination or murder of specific populations. forms of intangible restitution aimed at restructuring the societal and cultural damage of the trans-atlantic slave trade in the international community include an apology, a rewritten history of the trans-atlantic slave trade and slavery, genealogical analysis of slave descendants’ dna, and official recognition of native american heritage, dual or trilateral citizenship, and an ancestral continent. an apology from members of the international community for their participation in the transatlantic slave trade, municipal slavery, and continued racial discrimination would serve as an official acknowledgement of inherently evil crimes against humanity.328 the united states issuing apologies for the japanese internment during world war ii329 set a humane precedent for this reconciliation between 325 waterhouse, supra note 125, at 218. 326 packard, supra note 149, at 90. 327 see laurence c. nolan, the unconstitutional conditions doctrine and mandating norplant for women on welfare discourse, 3 am. u. j. gender & l. 15, 20–21, 32 (1994); see also pat wingert and barbara kantrowitz, the norplant debate, newsweek, feb. 14, 1993, http://www.thedailybeast.com/newsweek/1993/02/14/the-norplant-debate.html (this controversy occurred in the 1990s). 328 see shelton, supra note 5, at 273. 329 see civil liberties act of 1988 pub. l. no. 100-383, 102 stat. 903. 2013 columbia journal of race and law 201 201 201 201 201 201 201 western nation-states and victims of these crimes. although an apology for the slave trade and its legacy is not a legal remedy per se, it would set the tone for positive, reasonable negotiations designed to work towards tangible restitution. another form of intangible restitution is an accurate rewritten account of the historical events that led to the enslavement of indigenous peoples throughout the sixteenth and nineteenth centuries. this intangible form of restitution would benefit future generations of descendants both descendants of former slaves as well as of slave masters. history has the effect of influencing the perception of the current reality of society. descendants of historic victims still possess an inferiority complex about their skin color and ancestry that has been cultivated by generations of indoctrination. the international community’s proposed rewriting of slavery, slave trading, and sources of racial discrimination in history could build a stronger identity for black/native americans, latinos, and other descendants of the slave trade diaspora. the united states currently does not recognize latino americans, black/native americans, and some west indians’ native american heritage. the united states has deemed that anyone who identifies themselves with native american ethnicity must be a “card-carrying” member of a specific tribe.330 this segmented designation deprives many descendants of their cultural recognition and incorrectly categorizes them as hispanic or “african american.” as a result, many cross-cultural ties have been disconnected from one another by dominant society’s oppressive categorization of these populations. genealogical analysis for slave descendants would bridge the gap between their current cultural status and ancestral homeland. as descendants of historic victims are minimally integrated into western mainstream society, genealogical analysis could create a greater understanding that although they are a part of current western culture, they have a heritage that transcends and extends back in time long before the trans-atlantic slave trade. finally, dual or trilateral citizenship among native american tribes, america, other western nations, and the ancestral continent could produce similar psychological and cultural benefits as genealogical analysis, and a greater sense of cultural identity in all aspects of descendants’ heritage. v. conclusion international law does not traditionally promote a simple legal resolution for crimes against humanity. no monetary amount can return freedom usurped, revive lives lost, assemble cultures dismantled, restore family traditions broken, nor ease the pain of torture endured as a consequence of the international community’s participation in the trans-atlantic slave trade. as with any tragedy in human existence, the acknowledgement of any wrong, whether considered lawful under international norms or municipal law at the time committed or not, is the basis for transforming traditional legal custom to prevent the commission of future similar acts. however, it has gradually acknowledged victims’ right to effective remedies. however, just as the international community has addressed other human rights violations committed in the past, it has the ability to make substantial restitution that will socially, economically, 330 any american who is not already identified as native american or part of a reservation cannot claim native american ancestry unless they 1) identify as native american 2) also maintain a documented affiliated with a specific tribe/band within the native american population. see office of the bureau of indian affairs, a guide to tracing american indian & alaska native ancestry, available at http://www.bia.gov/cs/groups/public/documents/text/idc-002619.pdf (last visited april 20, 2013). 202 the trans-atlantc slave trade vol. 3:2 politically, and culturally repair some of the damage produced by the slave trade and its vestiges. nationstates that participated in the trans-atlantic slave trade are obligated to do so, not solely based on current standards of international custom, but also on the universal recognition of every human being’s rights to live, to assemble, and to attain education, employment, shelter, and respect. the international community has the capacity to contribute to the evolution of legal precedent regarding human rights violations. all that is needed is for one nation-state to take that courageous step to make amends. microsoft word cjrl sharon f17 neutral in name: rothe, the error of anticlassification, and the state of raceneutral means william sharon1 this note discusses the language state-actors use to create affirmative action programs, and the methods courts employ to determine their constitutionality. it describes the context and history of affirmative action jurisprudence, and explains the anticlassification method, the antisubordination method, and the former’s influence on the current tiered approach. this note then discusses a 2016 d.c. circuit decision, rothe v. united states department of defense, where the court of appeals held that a statutory preference awarded to people “who ha[ve] been subjected to racial or ethnic prejudice” does not contain a racial classification. in so ruling, the court illustrated one reason why the anticlassification approach to affirmative action jurisprudence is untenable. while anticlassification is already an antiquated method of interpretation, this note contends that, in light of rothe, it is an unworkable one as well. i. introduction .......................................................... 176 a. rothe ............................................................... 177 b. important terms ............................................ 179 ii. interpretive methods in antidiscrimination law: anticlassification vs. antisubordination ................................................................................... 181 1 wil sharon is a j. d. candidate 2018, columbia law school; b. a. 2015, ohio state university. the author is grateful to professor kent greenawalt for his advice throughout the drafting process, to professor jessica bulman-pozen for her feedback, and to the staff of the columbia journal of race and law for their edits. the author would also like to thank lisa sharon for reading drafts and discussing issues as they arose. 176 columbia journal of race and law [vol. 8:1 iii. affirmative action and disparate impact in the constitutional context .................................................. 185 a. affirmative action .......................................... 186 b. disparate impact ............................................ 189 c. race-neutral affirmative action ................... 191 iv. the case: rothe v. united states dept. of defense ............................................................................... 193 a. the opinion .................................................... 193 b. the dissent ..................................................... 197 v. the implications of rothe and the problems with anticlassification ................................................... 199 a. the practical implications of the rothe reasoning ................................................................. 200 b. rothe’s implications for the anticlassification principle .................................................................... 203 vi. conclusion ............................................................. 207 i. introduction in the late 1970’s, equal protection law faced a new challenge.2 with affirmative action in its nascent stage, the supreme court considered whether to subject programs intended to benefit historically subjugated racial groups to the same suspicion it reserved for laws designed to oppress minorities.3 the court opted for this heightened scrutiny.4 since then, many affirmative action programs have failed to clear this hurdle.5 but state actors seeing the value of 2 see regents of the univ. of cal. v. bakke, 438 u.s. 265 (1978). 3 id. at 290. 4 id. 5 see, e.g., adarand constructors, inc. v. pena, 515 u.s. 200 (1995); city of richmond v. j.a. croson co., 488 u.s. 469 (1989); id. no. 4:175] neutral in name 177 affirmative action have continued to strive for methods acceptable under this form of equal protection analysis.6 on june 23, 2016, the supreme court held that the university of texas at austin’s partially race-based admissions program did not violate the equal protection rights of a white person whose application the university denied.7 this was the second time the court encountered the case, fisher v. university of texas at austin, and the result was a victory for affirmative action.8 in the wake of fisher, the u.s. court of appeals for the d.c. circuit considered another case involving the issue of racial preferences.9 the case, rothe v. united states department of defense, concerned a law allowing the small business administration (“sba”), when awarding government contracts, to favor businesses whose owners had “been subjected to racial or ethnic prejudice or cultural bias.”10 while, in fisher, the court explained the circumstances under which a university would be allowed to classify based on race in its admissions process, the court in rothe bypassed that determination by deciding that the statute in question did not contain a racial classification. a. rothe rothe required the court to determine the constitutionality of 15 u.s.c. § 637(a),11 which authorizes the sba to contract with federal agencies which can then subcontract to eligible small businesses.12 the statute provides that eligible businesses include those majorityowned by “socially and economically disadvantaged” individuals.13 § 637(a)(5) defines a socially disadvantaged 6 fisher v. univ. of tex., 136 s. ct. 2198, 2215 (2016). 7 id. at 2215. 8 id. 9 rothe dev., inc. v. united states dep’t of def., 836 f.3d 57 (d.c. cir. 2016). 10 id. at 61. 11 15 u.s.c. § 637. 12 15 u.s.c. § 637(a)(5). 13 15 u.s.c. § 637(a)(1)(b). 178 columbia journal of race and law [vol. 8:1 individual as someone “who has been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.”14 the plaintiff, rothe, was a small computer-service business in texas.15 it regularly bid on defense department contracts, including those specified by the statute.16 rothe did not claim to be majority-owned by people who had experienced racial or ethnic prejudice or cultural bias.17 thus, it argued, it could not compete for government contracts on equal footing with businesses awarded the preference.18 it challenged the law19 as violating its equal protection rights under the due process clause of the fifth amendment,20 contending that the statute contained an unconstitutional racial classification.21 the district court granted the government’s motion for summary judgment, holding that the statute was constitutional.22 on appeal, the d.c. circuit affirmed, reasoning that the law contained no facially race-based classification.23 therefore, the court declined to apply “strict scrutiny,” instead reviewing the law under the “rational basis” standard.24 as that analysis is significantly more deferential to congress, § 637(a) easily passed muster.25 14 15 u.s.c. § 637(a)(5). 15 petition for writ of certiorari at 6, rothe dev. v. u.s. dep’t. of def., 836 f.3d 57 (d.c. cir. 2016) (no. 16-1239). 16 836 f.3d at 61. 17 id. at 62. 18 petition for writ of certiorari, supra note 15. 19 because rothe did not challenge the sba regulations, which apply § 637 in a racially classificatory manner, the court limited its analysis to the specific language of the statute. id. at 62. 20 836 f.3d at 61. 21 id. 22 rothe dev., inc. v. dep’t of def., 107 f. supp. 3d 183, 213 (d.d.c. 2015). 23 836 f.3d at 63. 24 id. 25 id. no. 4:175] neutral in name 179 on october 16, 2017, the supreme court denied rothe’s petition for certiorari.26 by declining to hear the case, the court left unresolved questions concerning the possibilities stemming from the d.c. circuit’s decision. this note will address some of those questions and situate the rothe reasoning within the context of affirmative action jurisprudence. b. important terms because some of the important terms in this note appear in different contexts, clarification is necessary. a decision, law, or plan containing a “racial classification” is one that explicitly identifies race as a factor for special treatment.27 regardless of the purpose of the decision, law, or plan, if it requires different treatment of people due to their membership in a racial group, it has a facially racebased classification.28 for example, separating prison inmates by race constitutes a system of racial classifications, even when purportedly undertaken to prevent violence.29 a law or state action that is “race-neutral” is one that does not contain an explicit race-based classification.30 nevertheless, it might have a race-based effect, and, as this note will discuss, may even be intended to achieve that effect. an action, law, or plan that is “race-conscious” is one where race is a motivating factor in the enactment process.31 an action can be race-conscious whether or not it contains a 26 rothe dev., inc. v. dep’t of def., no. 16-1239, 2017 wl 1375832, at *1 (u.s. oct. 16, 2017). 27 see generally, johnson v. california, 543 u.s. 499 (2005) (explaining that racial distinctions constitute suspect classifications regardless of whether they burden all races equally). 28 id. at 499. 29 id. 30 see generally reva b. siegel, race-conscious but race-neutral: the constitutionality of disparate impact in the roberts court, 66 ala. l. rev. 653 (2015) (explaining that facially neutral laws do not explicitly categorize based on race). 31 id. 180 columbia journal of race and law [vol. 8:1 racial classification. thus, a law can be both race-neutral and race-conscious.32 of course, a facially race-based classification will almost invariably be race-conscious. race-consciousness is subjective to the decisionmaker. drawing school districts with the intent of giving black children a better chance of attending good public schools would be race-conscious, even if the plan did not explicitly require that black people be given treatment different from people of other races.33 a plan intended to make latino/a people less likely to be selected for juries would be race-conscious,34 even if the plan were facially race-neutral. but a plan resulting in fewer latino/a people being selected for juries would not be race-conscious if the decision-maker did not consider race when enacting it.35 historically, courts addressing equal protection questions have begun by attempting to discern “illicit” classifications.36 those categories typically include race.37 when a court finds a proscribed classification, it will accord less deference to the decision-maker. racial classifications typically trigger “strict scrutiny.” in order for a law or decision to survive that analysis, it must be narrowly tailored to achieve a compelling governmental interest.38 this note argues that determining whether laws contain racial classifications should not be the chief concern in evaluating equal protection claims. part i describes two 32 id. 33 see, e.g., parents involved in cmty. sch. v. seattle sch. dist. no. 1, 551 u.s. 789 (kennedy, j., concurring in part and concurring in the judgment). 34 to the extent that equal protection jurisprudence conflates ethnic and racial characteristics. see, e.g., gloria sandrino-glasser, los confundidos: de-conflating latinos/as’ race and ethnicity, 19 chicanolatino l. rev. 69, 138 (1998) (arguing that, in a case involving exclusion of latino people from juries, the court has conflated ethnic neutrality with racial neutrality). 35 see, e.g., hernandez v. new york, 500 u.s. 352, 353 (1991). 36 kent greenawalt, judicial scrutiny of “benign” racial preference in law school admissions, 75 colum. l. rev. 559, 563 (1975). 37 see generally id. 38 adarand constructors, inc. v. pena, 515 u.s. 200, 227 (1995). no. 4:175] neutral in name 181 interpretive methods of antidiscrimination law. part ii provides some of the constitutional background of affirmative action and disparate impact. part iii explains the holding in rothe. part iv describes the implications of the rothe reasoning for affirmative action and the interpretive methods. as cases like rothe demonstrate, the distinction between race-neutral-but-race-conscious and facially classificatory laws is usually one of form and not substance. applying strict scrutiny to affirmative action plans because they classify based on race is a misguided method of legal interpretation and loses its purported value when raceneutral alternatives are neutral only in name. this note will attempt to show that the classification-oriented approach creates a legal conundrum; it results either in courts striking down benevolent plans designed to aid minority groups, or, in light of cases like rothe, it forces legislatures to contort statutory language in order to skirt an antiquated interpretive method. ii. interpretive methods in antidiscrimination law: anticlassification vs. antisubordination since the enactment of the fourteenth amendment, several interpretive perspectives have battled for control of equal protection law. the two predominant theories are the antisubordination principle and the anticlassification principle. the former refers to the idea that a law may not “‘aggravate’ or ‘perpetuate’ ‘the subordinate status of a specially disadvantaged group.’”39 instead, laws should attempt to rectify the historically secondary position of oppressed minorities.40 anticlassification, on the other hand, is the idea that a law may not classify people based on 39 jack m. balkin & reva b. siegel, the american civil rights tradition: anticlassification or antisubordination?, 58 u. miami l. rev. 9, 10 (2003) (quoting owen m. fiss, groups and the equal protection clause, 5 phil. & pub. aff. 107, 157 (1976)). 40 id. at 9. 182 columbia journal of race and law [vol. 8:1 certain characteristics (e.g., race).41 essentially, the government must avoid grouping people on the basis of forbidden categories, regardless of whether the impetus is invidious or benign.42 antisubordination and anticlassification frequently coincide. a law requiring black people to attend segregated schools would violate both.43 on the one hand, it would expressly classify based on race and therefore run afoul of the anticlassification principle. on the other, it would subjugate a historically disadvantaged minority group, thus violating the tenets of antisubordination. but as a practical matter, the concepts conflict in two scenarios. the first point of tension exists when laws or policies that do not classify groups based on proscribed characteristics nonetheless disproportionately affect people belonging to disadvantaged minorities. for example, a law prohibiting people living in a particular neighborhood from voting would be facially race-neutral. but if that neighborhood happened to be predominantly black, the law would disparately impact black people. thus, the statute would not implicate the anticlassification principle, but it would run afoul of the doctrine of antisubordination.44 the second discord occurs when laws or policies classify based on proscribed characteristics, but benefit 41 id. at 10. 42 id. 43 compare parents involved in cmty. sch. v. seattle sch. dist. no. 1, 551 u.s. 746 (2007) (roberts, c.j., arguing that the court in brown v. bd. of educ., 349 u.s. 294 (1955) struck down a law requiring black children to attend segregated schools on anticlassification principles. “[t]he court held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because the classification and separation themselves denoted inferiority,” with parents involved, 551 u.s. at 803 (breyer, j., dissenting) (arguing, based on antisubordination ideals, that brown promised racially integrated education and encouraged local authorities to undertake efforts to bring about that aim). 44 but see fiss, 5 phil. & pub. aff. at 171 (arguing that the [anticlassification] principle could conceivably be construed to apply to disparate impact cases). no. 4:175] neutral in name 183 minority groups. the most common form of this phenomenon is affirmative action. where a program awards a preference based on racial status, it violates the anticlassification principle. the anticlassification theorist would disapprove of explicit affirmative action based on the theory that certain classifications are inherently harmful.45 the issue, from that perspective, would concern means and not ends. justice thomas discussed affirmative action from an anticlassificationist angle in his concurrence in adarand constructors inc. v. pena, where the court struck down a statute awarding contracting preference to racial minorities; “that these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our constitution, the government may not make distinctions on the basis of race.”46 proponents of antisubordination, conversely, would likely accept explicit affirmative action as presumptively valid.47 laws and policies designed to benefit historically disadvantaged minorities would not raise concerns of aggravating subjugation or perpetuating perceived inferiority. dissenting in adarand, justice stevens argued that “[t]here is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.”48 essentially, the concern under the equal protection clause should be the motivation or effect of a law, not whether it names racial groups. since the 1970s, the supreme court has applied a relatively anticlassification-oriented approach to equal 45 see balkin supra note 39 at 11 (noting that if the court interpreted brown to invalidate segregation in light of the anticlassification principle, affirmative action would be presumptively unconstitutional). 46 515 u.s. at 240 (thomas, j., concurring in part and concurring in the judgment). 47 see id. (contending that a paternalistic impetus should not exempt racial classifications from strict scrutiny). 48 515 u.s. at 243 (stevens, j., dissenting). 184 columbia journal of race and law [vol. 8:1 protection law.49 affirmative action plans have survived application of this doctrine, but under limited circumstances.50 many of the explicit affirmative action decisions have turned on the availability of “race-neutral alternatives.”51 this inquiry requires a reviewing court to assess whether the positive result sought to be achieved through racial classification could be achieved through measures that do not refer explicitly to race. for example, a race-neutral alternative to giving school admissions preferences to members of minority racial groups might be “drawing public school attendance zones with general recognition of the demographics of the neighborhood” in order to maintain school integration.52 while the court has upheld laws and policies with facially race-based classifications as “last resorts” to achieving diversity,53 it has rejected them absent “serious, good faith consideration of workable race-neutral alternatives.”54 when the court deems such options available, it is generally disinclined to accept even benign racial classifications. as the court noted in fisher, though “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative” or “require a university to choose between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational opportunities to members of all racial groups,” it does impose “on the university the ultimate burden of demonstrating” that “race-neutral 49 balkin at 10. 50 see, e.g., grutter v. bollinger, 539 u.s. 306 (2003). 51 see, e.g., parents involved, 551 u.s. at 789 (kennedy, j., concurring in part and concurring in the judgment). 52 id. 53 id. at 790. 54 id. at 735 (roberts, c.j., writing for the court). no. 4:175] neutral in name 185 alternatives” that are both “available” and “workable” “do not suffice.”55 but determining whether a statute contains a racial classification is not always easy. to begin with, “‘express racial classification’ is not a self-defining term.”56 intuition might suggest that it refers to any law explicitly naming a racial group. but courts have applied the anticlassification principle inconsistently, often relying on subjective impressions.57 the decision in rothe is the latest example of competing antidiscrimination law principles. on one hand, the d.c. circuit applied an anticlassificationist reading to the statute in question. it determined that 15 u.s.c. § 637(a)(5) lacked a racial classification on its face, and that the law therefore warranted relatively lenient scrutiny. but in refusing to discern a classification, the majority implicitly relied on the antisubordination principle. iii. affirmative action and disparate impact in the constitutional context before moving to the implications of the court’s holding in rothe, review of the legal history of affirmative action is important. racial affirmative action is based on antisubordination reasoning.58 that is, it relies on racial parity not as a means but as an end. treating people differently based on race is an acceptable method of pursuing ultimate equality. frequently, this results in methods that are explicitly unequal.59 in that sense, antisubordination is a product of societal context. in a world without a history of 55 fisher, 136 s. ct. at 2208 (quoting grutter, 539 u.s. at 339, and fisher i, 570 u.s. at ––––, 133 s.ct. at 2420). 56 richard a. primus, equal protection and disparate impact: round three, 117 harv. l. rev. 493 (2003). 57 see id. 58 balkin, supra note 39, at 11. 59 see, e.g., grutter, 539 u.s. 306; parents involved, 551 u.s. 701; regents of univ. of california v. bakke, 438 u.s. 265 (1978). 186 columbia journal of race and law [vol. 8:1 racial inequality, there might be no need for the antisubordination principle. without minority subjugation, there would be nothing from which to recover. but in a society where racial inequality is not only mired in the past but a fact of the present, the antisubordination principle is an important premise on which to base remedial efforts.60 a. affirmative action in the last thirty years, many industries have adopted affirmative action plans. legislatures have enacted laws with facially race-based classifications in order to benefit minority groups.61 schools have used race in their admissions criteria.62 one area where affirmative action has been particularly contentious is government contracting. in the 1989 case, city of richmond v. j.a. croson, the supreme court adopted a restrictive standard for affirmative action.63 in rejecting the city of richmond’s plan setting aside 30 percent of public-works money for minority-owned businesses, the court applied strict scrutiny to affirmative 60 the history of the reconstruction amendments supports an antisubordinationist view. to begin with, the drafters of the equal protection clause were concerned primarily with protecting black people in their ability to exercise certain rights. see michael j. klarman, an interpretive history of modern equal protection, 90 mich. l. rev. 213, 216 (1991). the purpose of the fourteenth amendment was not to proscribe racial classifications as such. id. at 256. in fact, the court did not create a presumption that racial classifications would be invalid under the equal protection clause until it decided mclaughlin v. florida in 1964 (379 u.s. 184, 192 (1964)), almost a century after the amendment passed. in light of that history, many have argued that racial classifications should not be suspect when they are enacted to remedy the subjugation of minority racial groups (see, e.g., gratz v. bollinger, 539 u.s. 244, 298 (2003) (souter, j., dissenting); adarand, 515 u.s. at 243 (stevens, j., dissenting); joel k. goldstein, not hearing history: a critique of chief justice roberts’s reinterpretation of brown, 69 ohio st. l.j. 791 (2008)). 61 see, e.g., fullilove v. klutznick, 448 u.s. 448, 448, (1980); croson co., 488 u.s. 469. 62 see, e.g., bakke, 438 u.s. 265; grutter, 539 u.s. 306. 63 488 u.s. at 511. no. 4:175] neutral in name 187 action.64 it ruled that a remedial plan targeting the effects of “past societal discrimination” did not amount to a compelling interest that could pass muster under strict scrutiny.65 instead, an affirmative action plan aimed at remedying discrimination would be valid only if the party defending the plan could demonstrate a “strong basis in evidence” that such remedial action was necessary.66 such a showing required evidence of prima facie statutory or constitutional violations in the relevant industry and jurisdiction.67 this meant, essentially, that in order to create a facially racebased affirmative action plan, an employer or legislature needed to identify systemic disparate treatment within the industry.68 seven years after j.a. croson, the court in adarand affirmed the use of strict scrutiny review of facially racebased affirmative action plans.69 the court rooted its holding in a desire to maintain consistency.70 assuming all racial classifications to be inherently suspect, the court chose to apply a uniform standard to distinguish justifiable 64 id. at 493. 65 id. at 505. 66 id. at 500. 67 id. 68 this requirement differs from the necessary showing under title vii. unlike the constitutional requirement announced in j.a. croson, to enact affirmative action measures in accordance with title vii, an employer or legislature need show only a “manifest imbalance in a traditionally segregated job category.” united steelworkers of am., aflcio-clc v. weber, 443 u.s. 193, 197 (1979). the court in weber maintained that this disparity need not rise to the level of a prima facie statutory violation. in johnson v. transportation agency, santa clara county., cal., the court clarified that standard: in some cases, of course, the manifest imbalance may be sufficiently egregious to establish a prima facie case. however, as long as there is a manifest imbalance, an employer may adopt a plan even where the disparity is not so striking, without being required to introduce the nonstatistical evidence of past discrimination demanded by the “prima facie” standard. . . . 480 u.s. 616, n. 11 (1987). 69 515 u.s. at 201. 70 id. 188 columbia journal of race and law [vol. 8:1 classifications from invidious ones.71 the majority relied on the anticlassification principle, reasoning that expressly considering race is inherently dangerous and ought to require a compelling justification. rather than judging classifications as invidious or benign and then conducting the requisite analysis, the court purportedly applied strict scrutiny in order to differentiate invidious from benign classifications.72 dissenting in adarand, justice stevens argued that classificatory laws designed to harm minorities ought to receive a different analysis from those enacted to benefit protected groups.73 he explained that “a single standard that purports to equate remedial preferences with invidious discrimination cannot be defended in the name of ‘equal protection.’”74 in response to the majority’s claim that strict scrutiny should be used to make the initial distinction between invidious and benign, he compared the burden of discerning an illicit impetus to that of unearthing intentional discrimination in disparate impact cases.75 distinguishing between invidious and benign classifications, he reasoned, would be no more difficult than differentiating between discriminatory and innocent motives, something the court already did, without applying strict scrutiny, in its disparate impact line of cases.76 while the majority in adarand adopted the anticlassification principle, the dissent championed antisubordination. justice o’connor, writing for the court, endorsed the idea that racial classifications are inherently harmful.77 justice stevens, joined by justice ginsburg, 71 id. at 228. 72 id. 73 id. at 243 (stevens, j., dissenting). 74 id. at 246 (stevens, j., dissenting). 75 adarand constructors, inc. v. pena, 515 u.s. 245-46 (1995) (stevens, j., dissenting). 76 id. (stevens, j., dissenting). 77 id. at 234. no. 4:175] neutral in name 189 worried about the effects of laws on racial minorities whether or not those statutes actually classified racial groups.78 but by adopting the strict scrutiny standard for all laws or plans containing racial classifications, the court in adarand heightened the requirements for constitutionality in the context of race-based affirmative action. although the court explained that application of strict scrutiny would not necessarily be fatal to a law or plan, the court has since been reluctant to find racial classifications constitutional under that analysis.79 b. disparate impact in 1976, the court decided the seminal constitutional disparate impact case, washington v. davis.80 the plaintiffs in that case were black people in the district of columbia applying to be police officers. their applications were rejected because they failed a written test.81 they sued to invalidate the test on the ground that it racially discriminated in violation of the fifth amendment.82 the test was facially race-neutral.83 nothing about it expressly burdened black people more heavily than people of other races.84 in determining that the test was constitutional, the court created a standard for facially neutral programs. the test would be invalid, it said, only if the plaintiffs could identify a racially discriminatory purpose.85 the court qualified that standard by noting that a racially discriminatory purpose could be inferred from the disproportionate impact alone.86 but it ultimately concluded 78 id. at 243 (stevens, j., dissenting). 79 see, e.g., peter j. rubin, reconnecting doctrine and purpose: a comprehensive approach to strict scrutiny after adarand and shaw, 149 u. pa. l. rev. 1, 27 (2000). 80 washington v. davis, 426 u.s. 229 (1976). 81 id. at 233. 82 id. at 234. 83 id. at 235. 84 id. 85 id. at 240. 86 washington v. davis, 426 u.s. 241 (1976). 190 columbia journal of race and law [vol. 8:1 that its “cases [had] not embraced the proposition that a law or other official act, without regard to whether it reflect[ed] a racially discriminatory purpose, [would be] unconstitutional solely because it ha[d] a racially disproportionate impact.”87 this particular test, the court said, sought to ascertain whether applicants had acquired a particular level of verbal skill, not to disproportionately keep black people off of the police force.88 thus, the court established that a stateimposed racial disparate impact, without more, was constitutional. the court affirmed this standard three years later in personnel administrator of massachusetts v. feeney.89 it held that a law or other official act having a disparate impact would not necessarily be unconstitutional even if the legislature were aware of the disproportionate effect.90 the court thus declined to apply the proposition that “a person intends the natural and foreseeable consequences of his voluntary actions.”91 in disparate impact cases under the constitution, the court ruled, a course of action would be invalid only if undertaken at least in part “because of, not merely in spite of” its adverse effects upon an identifiable group.92 the court in feeney noted that a facially neutral law would not violate equal protection absent an “invidious” purpose.93 in that regard, a facially neutral law designed to harm a minority racial group would be suspect. “[w]hen a neutral law has a disparate impact upon a group that has historically been the victim of discrimination, an unconstitutional purpose may still be at work.”94 this language implied that a facially neutral law intended to 87 id. at 239 (emphasis added). 88 id. at 245. 89 442 u.s. 256, 272 (1979). 90 id. at 279. 91 id. 92 washington v. davis, 426 u.s. 279 (1976). 93 id. at 274. 94 id. no. 4:175] neutral in name 191 benefit a historically victimized group would be presumptively valid. the court endorsed this theory in texas department of housing & community affairs v. inclusive communities project, inc., where it recognized the existence of disparate impact claims under the fair housing act.95 in that case, the court noted that local housing authorities could “choose to foster diversity and combat racial isolation with raceneutral tools.”96 the court accepted that racial diversity could be at least part of the motive for a facially neutral policy without that policy triggering strict scrutiny.97 thus, it validated the contrapositive to feeney. while the court in feeney held that a facially neutral law with an invidious purpose would be presumptively invalid, the court in texas dept. of housing explained that a similar law with a benign purpose would be presumptively valid, even if the disparate effects were intentional.98 c. race-neutral affirmative action the davis/feeney test applies in the context of affirmative action. in that setting, plans disproportionately benefitting minority racial groups are presumptively constitutional if they do not facially classify by race.99 the court has referred to this sort of disparate-impactaffirmative-action as “race-neutral means.”100 within that category, a benign policy is presumptively constitutional if it is facially race-neutral, even if it is motivated at least in part by race-consciousness.101 a school or employer can, for instance, create an admissions plan or application designed in part to accept more people belonging to minority racial 95 135 s. ct. 2507 (2015). 96 id. at 2525. 97 id. 98 e.g., a statute drawing school attendance zones in light of neighborhood demographics. id. at 2525. 99 see, e.g., parents involved, 551 u.s. at 789 (kennedy, j., concurring in part and concurring in the judgment). 100 id. at 790. 101 id. at 789. 192 columbia journal of race and law [vol. 8:1 groups, as long as the plan does not expressly classify based on race.102 in fact, when a court applies strict scrutiny to an affirmative action plan that classifies based on race, one of the considerations at the “narrow tailoring” stage is whether the decision-maker considered race-neutral alternatives.103 a recent example, which the court alluded to in fisher,104 is the texas legislature’s adoption of a “top ten percent plan.”105 after the fifth circuit struck down the university of texas at austin’s facially race-based admissions program,106 the texas legislature enacted a policy whereby the university would admit any student from the top ten percent of his or her high school class.107 because many texas high schools had predominantly black student bodies, the plan resulted in the acceptance of a higher number of black students than would otherwise have been admitted.108 the legislature did not deny that the plan was intended, at least in part, to have a racially-disparate effect.109 nevertheless, the court did not apply strict scrutiny analysis to the top ten percent plan.110 rather, the court treated the plan as a “race-neutral holistic review.”111 in that vein, the court has suggested that “raceneutral” methods can still be race-conscious without triggering strict scrutiny. as one commenter notes, “the court’s acceptance of the percent plan illustrates that government may act in race-conscious but facially neutral ways to promote equal opportunity, even where government 102 id. 103 see bakke, 438 u.s. at 357. 104 136 s. ct. at 2213. 105 tex. educ. code ann. § 51.803. 106 fisher v. univ. of tex. at austin, 631 f.3d 213, 242 (5th cir. 2011), vacated and remanded, 133 s. ct. 2411, 186 l. ed. 2d 474 (2013). 107 fisher v. univ. of tex. at austin, 133 s. ct. 2411, 2416 (2013). 108 id. 109 fisher, 631 f.3d at 242. 110 abigail noel fisher v. univ. of tex. at austin, 136 s. ct. 2198, 2213 (2016) [hereinafter fisher ii]. 111 id. no. 4:175] neutral in name 193 seeks to alter racial outcomes.”112 justice kennedy affirmed this idea in parents involved.113 discussing hypothetical policies that would be race-neutral, he suggested that “[parties] are free to devise race-conscious measures to address [a lack of diversity] without . . . individual typing by race.”114 in sum, affirmative action is not constitutionally suspect if attempted through race-neutral means. but facially race-based classifications are inherently suspect. a public university policy automatically accepting fifteen black applicants every year would trigger strict scrutiny. admitting anyone from the state in the top ten percent of his or her high school class would not, even if the purpose were partly to promote racial diversity on campus. but in some cases, distinguishing facially neutral policies from those containing racial classifications is not so easy. that determination was the issue in rothe. iv. the case: rothe v. united states dept. of defense a. the opinion the plaintiff in rothe challenged § 637(a) of the small business act on the grounds that it contains a racial classification. it argued that the definition of “socially and economically disadvantaged” explicitly allocates a preference to certain racial groups. rothe was not the first time a party had challenged § 637. a different section, § 637(d), was the focus of adarand more than 20 years before.115 the supreme court in 112 reva b. siegel, race-conscious but race-neutral: the constitutionality of disparate impact in the roberts court, 66 ala. l. rev. 653, 674 (2015). 113 551 u.s. at 789 (kennedy, j., concurring in part and concurring in the judgment). 114 id. at 788-89 (kennedy, j., concurring in part and concurring in the judgment). 115 515 u.s. at 207. 194 columbia journal of race and law [vol. 8:1 adarand deemed that section unconstitutional.116 but the provision the d.c. circuit addressed in rothe differs slightly. the primary distinction between (d), which the supreme court considered in adarand, and (a) which the d.c. circuit dealt with in rothe, was the fact that (d) expressly relied on the presumption that certain minority group members were socially and economically disadvantaged;117 “the contractor shall presume that socially and economically disadvantaged individuals include black americans, hispanic americans, native americans, asian pacific americans, and other minorities, or any other individual found to be disadvantaged.”118 section (a), on the other hand, contains no such language; “whatever congress’s reasons for directing private businesses to use race-based criteria under [§] (d)’s subcontracting clause, congress authorized more nuanced implementation by the agency under [§] (a).”119 nevertheless, the plaintiff in rothe challenged § 637(a) as creating a similar racial presumption, and thus, a similarly suspect classification.120 in ruling that the statute is facially neutral, the court followed several lines of reasoning. first, the court determined that § 637(a)(5) envisions an “individual-based approach” rather than one reliant on group characteristics.121 the court noted that the statute could encompass people who were not part of minority racial groups, who had nonetheless experienced discrimination based on race, culture, or ethnicity.122 moreover, the statute would not necessarily apply to people of minority groups who had not individually experienced racial discrimination.123 116 id. at 204. 117 id. at 207. 118 15 u.s.c. § 637(d)(3)(c)(ii) (2016). 119 rothe, 836 f.3d at 69. 120 id. at 61. 121 id. at 64. 122 id. 123 id. no. 4:175] neutral in name 195 the court distinguished the academic admissions policy in regents of the university of california v. bakke,124 where the university of california at davis’ medical school used a racial quota in its admissions process.125 in contrast, the rothe court noted, § 637(a)(5) allows consideration of personal experience (e.g., subjection to racial prejudice) in gauging social disadvantage.126 unlike bakke, rothe does not rely on race qua race, and therefore does not contain an express racial classification.127 next, the rothe court addressed § 637(a) from a disparate impact perspective.128 the court did not deny that, when it enacted the statute, congress was aware of the racial effect § 637(a) would have.129 but judge pillard, writing for the majority, noted that congressional anticipation of disproportionate racial effects, absent a discriminatory purpose, does not condemn a law to strict scrutiny.130 “mere foreseeability of racially disparate impact, without invidious purpose, does not trigger strict constitutional scrutiny.”131 in reaching that conclusion, the court applied the davis/feeney framework.132 under feeney, a facially neutral law triggers constitutional heightened scrutiny only if enacted “because of, not merely in spite of,” a discriminatory purpose.133 addressing that point, the rothe court adopted some of the reasoning from texas dept. of housing and ruled that § 637(a) was not meant to discriminate invidiously, but to advance equal opportunity.134 thus, even though the legislature may have intended § 637(a)’s disproportionate 124 id. 125 438 u.s. at 276. 126 836 f.3d at 64. 127 id. 128 id. at 71-72. 129 id. at 71. 130 id. at 72. 131 id. 132 rothe dev., inc. v. united states dep’t of def., 836 f.3d 71-72 (d.c. cir. 2016). 133 442 u.s. at 279 (internal quotations omitted). 134 836 f.3d at 72. 196 columbia journal of race and law [vol. 8:1 effect, that intent was not “discriminatory” in the sense the court described in feeney.135 the rothe court also cited justice kennedy’s concurrence in parents involved.136 there, justice kennedy stressed that “[s]chool boards may pursue the goal of bringing together students of diverse backgrounds and races through [race-neutral] means.”137 justice kennedy rejected the application of strict scrutiny to those cases. he explained, “these mechanisms are race conscious but do not lead to different treatment based on a classification that tells each [person] he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible.”138 finally, the rothe court addressed prior affirmative action decisions.139 it quoted justice scalia’s concurring opinion in j.a. croson, where he noted that a legislature can, for example, “adopt a preference for small businesses, or even for new businesses—which would make it easier for those previously excluded by discrimination to enter the field.”140 differing effects along racial lines could be acceptable, the rothe court determined, based on scalia’s view that “[s]uch programs [could] well have racially disproportionate impact” and still be valid.141 the rothe court also reiterated the controlling concurrence in parents involved, where justice kennedy pointed out several presumably valid race-neutral, yet disproportionately effective ways of pursuing diversity in education.142 relying on the reasoning in those cases, the rothe court determined 135 id. 136 id. 137 parents involved, 551 u.s. at 789 (kennedy, j., concurring in part and concurring in the judgment). 138 id. (kennedy, j., concurring in part and concurring in the judgment). 139 rothe, 836 f.3d at 72. 140 id. (quoting j.a. croson, 488 u.s. at 526). 141 id. (quoting j.a. croson, at id.). 142 id. (citing parents involved, 551 u.s. at 789 (kennedy, j., concurring in part and concurring in the judgment)). no. 4:175] neutral in name 197 that § 637(a) constitutes a race-neutral alternative as envisioned by the court in the affirmative action context.143 b. the dissent the dissenting judge in rothe argued that § 637(a) contains an express racial classification.144 in reaching that conclusion, she relied in part on paragraph (a)(8); “all determinations made pursuant to paragraph (5) with respect to whether a group has been subjected to prejudice or bias shall be made by the administrator after consultation with the associate administrator for minority small business and capital ownership development.”145 to the dissent, the use of the word “group” in this provision suggested a presumption based on race, thereby undermining the view that the challenged provision applies to individuals.146 if a group had been subjected to racial or ethnic prejudice or cultural bias, then its members were presumptively socially disadvantaged.147 it did not, as the majority claimed, provide for an individual inquiry into whether each applicant met the definition separately. “the message is clear—groups suffer discrimination and therefore persons who are members of those groups are socially disadvantaged.”148 to support that view, the dissent pointed to the congressional findings section of the statute, which note (a) that the opportunity for full participation in our free enterprise system by socially and economically disadvantaged persons is essential if we are to obtain social and 143 id. 144 id. at 74 (henderson, j., concurring in part and dissenting in part). 145 rothe dev., inc. v. united states dep’t of def., 836 f.3d 76 (d.c. cir. 2016) (henderson, j., concurring in part and dissenting in part (quoting 15 u.s.c. § 637(a)(8))). 146 id. (henderson, j., concurring in part and dissenting in part). 147 id. at 76-77 (henderson, j., concurring in part and dissenting in part). 148 id. at 76 (henderson, j., concurring in part and dissenting in part). 198 columbia journal of race and law [vol. 8:1 economic equality for such persons and improve the functioning of our national economy; (b) that many such persons are socially disadvantaged because of their identification as members of certain groups that have suffered the effects of discriminatory practices or similar invidious circumstances over which they have no control; [and] (c) that such groups include, but are not limited to, black americans, hispanic americans, native americans, indian tribes, asian pacific americans, native hawaiian organizations, and other minorities . . . .149 thus, she argued, the statute creates a floor for participation in the § 637(a) program.150 it classifies by race, and then allows the small business administration (“sba”) to select from within that class.151 “[i]f not rebutted, the sba must presume members of [racial groups and other minorities] are socially disadvantaged.”152 the majority dismissed these concerns, arguing that the congressional findings were not dispositive.153 there are many reasons congress might have identified certain racial groups when announcing the policy behind the [§ 637(a)] program. congress might have wanted to offer paradigmatic examples of the problem or to 149 id. (henderson, j., concurring in part and dissenting in part (quoting 15 u.s.c. § 631(f)(1)(a) – (c) (footnote omitted))). 150 id. at 77 (henderson, j., concurring in part and dissenting in part). 151 rothe dev., inc. v. united states dep’t of def., 836 f.3d 77 (d.c. cir. 2016) (henderson, j., concurring in part and dissenting in part). 152 id. at 78 (henderson, j., concurring in part and dissenting in part). 153 id. at 66. no. 4:175] neutral in name 199 send a signal of responsiveness to americans of minority backgrounds, many of whom felt they lacked a fair shot at the american dream.154 the court also rejected the idea that the findings section creates a presumption that racial minorities are socially disadvantaged.155 “congress’s findings that individual business owners may have been unfairly subjected to race-based disadvantage do not . . . supplant the raceneutral definition of social disadvantage found in section 637(a)(5).”156 the case ultimately turned on whether § 637(a) does in fact presume that racial minorities are socially disadvantaged. while the court in adarand held that § 637(d) created such a presumption,157 the court in rothe held that § 637(a) does not.158 providing a benefit to a person who has experienced racial prejudice is acceptable; assuming that a member of a racial minority has experienced such prejudice by virtue of minority status is not. v. the implications of rothe and the problems with anticlassification regardless of whether the d.c. circuit was correct in determining that § 637(a) does not contain a race-based presumption, rothe expanded the possibilities of what counts as “race-neutral.” whether justice kennedy envisioned a law like the one in rothe at the time of parents involved, and whether he would have called § 637(a) “race-neutral” is unclear. regardless, following the rothe holding, a classification can come very close to being a race-based preference without triggering strict scrutiny. 154 id. 155 id. at 67. 156 id. at 66. 157 515 u.s. at 203. 158 836 f. 3d at 65. 200 columbia journal of race and law [vol. 8:1 so what does the rothe holding say about affirmative action? on the one hand, if followed, it expands the possibilities for race-conscious decision-making in many areas. from government contracting to college admissions, the sweep of the rothe reasoning may be far-reaching. on the other hand, the rothe holding pushes the anticlassification principle to the limits of its usefulness. a. the practical implications of the rothe reasoning from a practical perspective, rothe seems to create a space for affirmative action removed from strict scrutiny. by allowing a policy that ventures so close to racial classification to slip through relatively unchallenged, the court in rothe expanded the zone of what constitutes race-neutral means. doctrinally, the feeney/davis standard is central to analyzing the d.c. circuit’s holding. because laws and policies are exempt from strict scrutiny if their motive is benign and they do not expressly classify, facially neutral laws intended to benefit minorities are likely to receive rational basis review. since statutes facing that test will generally pass constitutional muster, rothe’s restrictive view of what constitutes a classification is particularly important. consider the possibilities; an agency using language similar to that in § 637(a)(5) could enact a law or plan favoring “people who have been discriminated against because of their identity as member[s] of a group without regard to their individual qualities.”159 in fact, several u.s. statutes have adopted the language from § 637(a) and applied the provision to other contracting agencies.160 159 15 u.s.c § 637(a)(5). 160 see, e.g., 51 u.s.c. § 30304 (applying § 637(a)’s definition of “socially and economically disadvantaged individuals to national aeronautics and space administration contracting); 42 u.s.c. § 4370d (applying the definition to environmental protection agency subcontracts). no. 4:175] neutral in name 201 to be sure, without a presumption of eligibility, § 637(a) is not necessarily the ideal method of furthering contracting opportunities for minority-owned businesses. without a presumption that the statute applies to all members of specific racial groups, proving eligibility will likely require business owners to show that they have personally faced discrimination. depending on what proof is needed to make such a showing, that demonstration may be difficult, even for those who fit within the category. for example, people who have suffered the effects of implicit bias161 (maybe without realizing it) might not be able to provide proof of having faced racial discrimination in those cases. furthermore, people who have suffered the consequences of past segregation and discrimination, but cannot point to specific instances in their own lives, might not fit the definition in § 637(a)(5). although agencies implementing preferences like § 637(a) might attempt to define “discrimination” to include such nonspecific instances or the effects of implicit biases, proving that sort of general prejudice presents its own difficulties. for instance, people who have experienced the effects of disparate housing opportunities might not be able to prove that they “have been subjected to racial or ethnic prejudice or cultural bias.” even if subjection to inferior housing options fits an agency’s definition of “discrimination,” individuals might struggle to show that they have personally faced such circumstances. the rothe court did not address the requisite proof demonstration under statutes like § 637(a). in that regard, the holding leaves several important questions unanswered. for example, if a presumptive homeowner who is black is 161 occurring when “[u]nconscious attitudes (including culturally learned associations or generalizations that we tend to think of as stereotypes) introduce unjustified assumptions about other people and related evidence that can distort a person’s judgment and behavior.” jennifer k. elek & paula hannaford-agor, first, do no harm: on addressing the problem of implicit bias in juror decision making, 49 ct. rev. 190, 190 (2013). 202 columbia journal of race and law [vol. 8:1 shown houses in only minority neighborhoods, has she faced sufficient discrimination to fit the definition? has someone whose parents were denied fair housing opportunities on account of race suffered racial prejudice by virtue of the difficulties involved in growing up in inferior housing? has someone whose ancestor was a slave faced racial discrimination by virtue of that fact? to be sure, if the entity enacting the facially raceneutral affirmative action plan is also the one implementing it,162 then a wider range of instances might be more likely to fit the definition. but that is not always the case. for example, a legislature might create a law like § 637(a)(5) and entitle third parties to determine whether applicants meet the “having faced discrimination” definition. in that instance, the implementing agency might adopt a very specific and difficult proof standard, especially if the agency opposes the plan to begin with. ultimately, the court in adarand suggested that a presumption of eligibility for people belonging to certain racial groups would be tantamount to a classification based on race.163 thus, although a legislature can unequivocally say that a statute is intended to favor people of minority races, it cannot, without a sufficient justification under strict scrutiny, prefer those people by entitling them to a presumption of eligibility. in rothe, that meant that § 637(a) could create a disparate impact favoring people belonging to minority races and that the legislature could unambiguously espouse that effect as its purpose. but it also meant that the more definitively the statute achieved the intended end (e.g., by presuming that the people it wanted to help were those entitled to participate in its aid program), the more suspect it would become. nevertheless, benevolent racial classifications and statutes like § 637(a)(5) should yield different results only in 162 for example, a university adopting language like § 637(a)(5) in its own admissions policy and then deciding which applicants have faced racial prejudice. 163 515 u.s. at 213. no. 4:175] neutral in name 203 marginal cases. moreover, as justice souter noted in his dissent in gratz v. bollinger, the inconsistent treatment of the two methods encourages legislatures and state decisionmakers to “hide the ball.”164 in gratz, the court applied strict scrutiny to the university of michigan’s use of racial preferences in undergraduate admissions.165 justice souter argued in dissent that mere acknowledgment of raceconsciousness should not trigger increased suspicion.166 he explained that “it seems especially unfair to treat the candor of the admissions plan as an achilles’ heel.”167 as justice souter recognized, if the methods are the problem, the incentive is to minimize transparency through coyly worded legislation, not avoid a particular result. when courts are willing to tolerate facially neutral race-consciousness, this sentiment highlights the hypocrisy of anticlassification all the more. in sum, courts will allow legislatures to further benevolent race-conscious goals as long as they use facially race-neutral means. but as soon as congress, intending to favor people from historically subjugated racial groups, classifies those it intends to help, the laws become suspect. one implication seems inescapable; the anticlassification principle is the wrong way to further the goals of equal protection. b. rothe’s implications for the anticlassification principle ultimately, the rothe holding indicates the infeasibility of anticlassification as an interpretive method. the anticlassificationist argument against facially racebased affirmative action relies on the belief that classifying people based on race is itself an evil prohibited by equal protection. this was justice roberts’ concern in parents involved, where he argued that “[t]he way to stop 164 539 u.s. at 298 (souter, j., dissenting). 165 id. at 270. 166 id. at 297. 167 id. 204 columbia journal of race and law [vol. 8:1 discrimination on the basis of race is to stop discriminating on the basis of race.”168 from that perspective, the reconstruction amendments were intended only to prohibit racial distinctions (and those based on membership in other protected classes). it is a “race-conservative” point of view.169 classifying people based on race is undoubtedly problematic in many instances. when the court decided loving v. virginia in 1967, it said that classification was harmful even if both white people and black people were labelled.170 but racial distinctions were not the most concerning issue for the court. what the court truly cared about in loving was the reason why the particular classification was harmful. classification, in the context of miscegenation, was wrong because of the way it subjugated black people. it was wrong because it carried with it sentiments like, almighty god created the races white, black, yellow, malay and red, and he placed them on separate continents. and but for the interference with his arrangement there would be no cause for such marriages. the fact that he separated the races shows that he did not intend for the races to mix.171 of course, the anticlassificationist would argue that this is precisely the sort of problematic language at the heart of equal protection. and in part, the anticlassificationist would be correct. but also, she would overlook the deeper issue. pointing out alleged differences between the races was not the crux of the problem in loving. the real concern was the motive and rationale. the belief that the races ought to be separate arose from ideas concerning inferiority and superiority. the racial classification in loving was 168 551 u.s. at 748. 169 see reva b. siegel, from colorblindness to antibalkanization: an emerging ground of decision in race equality cases, 120 yale l.j. 1278, 1282 (2011). 170 388 u.s. 1, 12 (1967). 171 id. at 3. no. 4:175] neutral in name 205 suspect because it was designed to perpetuate a history of racism. moreover, if § 637(a) is a “race-neutral” alternative, there doesn’t seem to be much use for the anticlassification principle. by enacting § 637(a), congress intentionally favored people because of race. it may not have explicitly labelled those people, but it did not attempt to hide its motive. if facially race-based classifications are inherently discriminatory (as seems to be justice roberts’ opinion in parents involved), the statute the d.c. circuit addressed in rothe does not seem much less discriminatory. what, then, does the rothe holding ultimately mean for anticlassification? on one hand, rothe is a test case for anticlassificationists. it forces those who support the theory to consider the bounds of its usefulness. when anticlassification extends only to the label and has little practical effect on the law, is it still a valuable interpretive method? if the legislature can act for race-based reasons without expressly classifying by race, then the only thing left to consider is whether the absence of a label is worth forcing congress to hide the ball. but confusingly, the court has suggested that when an agency successfully avoids classifying, it need not even bother to conceal its race-based motive. a school is free to select students for race-conscious reasons as long as it does not use a racial label in its criteria.172 when a decisionmaker can act for the explicit purpose of achieving a raceoriented outcome, it is difficult to see how only a racial label implicates equal protection, or, conversely, why a racial label automatically triggers strict scrutiny. as justice ginsburg noted in her dissent in gratz, “the constitution, properly interpreted, permits government officials to respond openly to the continuing importance of race. among constitutionally permissible options, those that candidly disclose their consideration of race seem to me preferable to those that 172 see, e.g., fisher, 136 s. ct. at 2209 (2016) (discussing the top ten percent plan as a valid race-neutral alternative). 206 columbia journal of race and law [vol. 8:1 conceal it.”173 in light of justice ginsburg’s point, if openly considering race is preferable to surreptitiously awarding racial preferences, why is the degree of openness so troubling? where does candor cross the line from desirable to suspicious? but modern statutes rarely classify based on race in order to subjugate minority groups. the days of stateendorsed jim crow racism have given way to subtler methods.174 in the pre-brown era, a law classifying based on race was likely to be the product of anti-minority sentiment. now, after brown, a law containing a racial classification will almost invariably be a method of aiding historically subjugated groups. racism is undoubtedly alive in the modern age, but in the political world it has, for the most part, been relegated to areas like implicit bias, disparate impact, and surreptitious action. this is the case because, to begin with, state actors are likely to be aware that actions overtly intended to harm racial minorities will be unconstitutional.175 if a legislature harbors such malign intent, it is likely to act without classifying at all. thus, even if distinguishing invidious from benign classifications was once a difficult task (because the former were prevalent), it is a much more straightforward inquiry now (as overt racism in law-making has, for the most part, given way to implicit forms). in some instances the determination might be more difficult than in others,176 but, nevertheless, discerning invidious race-based intent is well within the province of the judiciary.177 173 gratz, 539 u.s. at 305 n. 11 (ginsburg, j., dissenting) (internal citations omitted). 174 see ian f. haney lópez, post-racial racism: racial stratification and mass incarceration in the age of obama, 98 cal. l. rev. 1023, 1072 (2010). 175 see, e.g., kent greenawalt, the unresolved problems of reverse discrimination, 67 cal. l. rev. 87, 93 (1979). 176 see, e.g., united states v. starrett city assocs., 840 f.2d 1096, 1102 (2d cir. 1988) (discussing a plan designed to integrate a community by limiting the number of black people able to rent homes). 177 see feeney, 442 u.s. at 279. no. 4:175] neutral in name 207 vi. conclusion some authors have proposed amending the equal protection inquiry to consider factors other than classifications.178 some contend, for example, that courts should focus instead on whether laws or plans perpetuate a history of past discrimination or affect access to the political process.179 under that approach, a law would not be constitutionally suspect merely because it contains a facially race-based classification. instead, a court would first determine whether the law perpetuates one of the social ills most often associated with minority subjugation.180 this note does not necessarily promote a particular alternative. it suggests only that the absence of racial labels should not be as significant a factor in determining the constitutionality of laws, plans, or other state actions. distinguishing classificatory laws from facially-neutral-butrace-conscious ones creates a false dichotomy. the two are essentially the same, and if the reasoning in rothe takes hold, becoming more so. reliance on the classification-oriented method of analysis is an antiquated form of legal interpretation. it is relatively rare that plans and laws enacted for discriminatory purposes will explicitly subjugate racial groups. these days, when a state actor expressly classifies by race, it is unlikely that the classification will be invidious. ultimately, rothe demonstrates that racial classifications are not the crux of the issue. if a legislature wants to target a group, it can do so through facially neutral methods. the relevant concern is effect. the court has recognized this in the disparate impact context as purposeful discrimination and has granted protection under the fifth 178 lauren sudeall lucas, functionally suspect: reconceptualizing “race” as a suspect classification, 20 mich. j. race & l. 255, 281 (2015). 179 id. 180 id. 208 columbia journal of race and law [vol. 8:1 and fourteenth amendments.181 according to disparate impact doctrine, there is little practical difference between an invidious discriminatory law that classifies based on race, and one that does not. courts are likely to find both unconstitutional. but there is currently a constitutional difference between a benign law that classifies based on race and one that does not. this is where cases like rothe are illustrative. because race-consciousness can be as overt as that in rothe, or the top ten percent plan in fisher, then why does it matter whether those racial concerns are manifest through classifications? moreover, if classifications are so difficult to distinguish from facially neutral means, why are courts so focused on labels in the first place? if a facially neutral law intended to benefit minorities will not trigger strict scrutiny, so too should a benign racial classification with the same effect be free from such suspicion. 181 see, e.g., feeney, 442 u.s. at 274. vol 2.1-final proof 2012 columbia journal of race and law 75 a deliberative defense of diversity: moving beyond the affirmative action debate to embrace a 21st century view of equality stacy l. hawkins* “diversity” is a recent construct in our equal protection jurisprudence, but during its relatively short existence it has garnered many critics. even critical race scholars, the most vocal proponents of aggressive civil rights and equal protection enforcement, are skeptical about “diversity,” to say nothing of its many opponents. critiques of “diversity” argue that it is vague, an alter ego of affirmative action, and an inferior method of achieving the remedial purposes of equal protection abound. more troubling than this scholarly critique of diversity, however, is the “mixed motive” analysis of the diversity interest in the court’s equal protection jurisprudence that conflates the aspirational aims of diversity with the remedial aims of affirmative action. diversity can and should be defended and materially distinguished from affirmative action both in the instrumentalist theories justifying it, as well as in the legal standards by which its constitutionality is evaluated. this article offers that defense. the primary aim of this article is to elucidate the “diversity interest,” as recognized in our equal protection jurisprudence, through the lens of modern diversity practice. this corporate perspective on constitutional law may seem inapt. but viewing the constitutional diversity interest through the lens of modern diversity practice exposes the deficiency of our equal protection jurisprudence grounded solely in a remedial principle of equality to appropriately define or adequately accommodate the distinct aspirational aims of the diversity interest. modern diversity practice offers insight and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! ! *! visiting assistant professor of law, rutgers school of law–camden. j.d., georgetown university law center; b.a., university of virginia. i am deeply grateful to the following people for reading a draft of this paper and whose questions, comments, and critiques were invaluable: sylvia james, keith earley, kimberly ferzan, earl maltz, rand rosenblatt, gerardo vildostegui, linda bosniak, hon. dennis braithwaite, michael carrier, carlton waterhouse, tanya washington, ellen goodman, and ann freedman, as well as to the participants at the southeast/southwest/midwest people of color conference works in progress session and the rutgers junior faculty colloquium.! 76 deliberate defense of diversity vol. 2:1 analogy for how our equal protection jurisprudence should respond to this deficiency, first by defining the various instrumentalist justifications for the diversity interest, and second by reframing the equal protection analysis to suit the constitutional contours of the diversity interest. modern diversity practice offers both a theoretical and empirical defense of diversity that can help illuminate the legal analysis of diversity and move our equal protection jurisprudence from a backward-looking doctrine of redress to a forward-looking doctrine of egalitarianism. i. introduction.................................................................................................................77 ii. distinguishing modern diversity practice from affirmative action in theory ...........................................................................................................80 a. history & origins of modern diversity practice...............................................................80 1. texaco suit & the settlement.......................................................................................81 2. rise of corporate diversity practice............................................................................82 b. history & theory of affirmative action............................................................................83 c. theories of modern diversity practice..............................................................................84 1. the “business case”....................................................................................................84 2. functional diversity.....................................................................................................86 3. pluralism/social responsibility...................................................................................88 iii. the mediating principles of equal protection.........................................90 a. anti-subordination.............................................................................................................92 b. anti-discrimination...........................................................................................................96 c. remedial principles provide an inadequate equal protection framework for the diversity interest................................................................................................................98 iv. the “diversity interest”...........................................................................................98 a. bakke ..................................................................................................................................99 b. metro broadcas t ing , inc . ...................................................................................................102 c. grutt e r ...............................................................................................................................105 v. uncovering a new strict scrutiny standard .............................................108 a. the [mis]fit between the “diversity interest” & remedial equal protection analysis.............................................................................................................................108 1. race neutral alternatives...........................................................................................108 2012 columbia journal of race and law 77 2. burden on non-minorities.........................................................................................109 3. limited duration........................................................................................................110 b. the right fit: adopting the powell test of strict scrutiny.............................................111 c. applying the powell test to metro broadcas t ing inc . and grutt e r ...................................112 1. replacing race-neutral with “broader than race”..................................................112 2. shifting focus from burden on some to individualized consideration for all........113 3. reconciling limited duration and aspirational ends...............................................114 vi. conclusion......................................................................................................................114 i. introduction this article argues that the constitutional “diversity interest” recognized by the supreme court in regents of the university of california v. bakke,1 metro broadcasting, inc. v. fcc,2 and grutter v. bollinger3 presents an opportunity to modernize and harmonize our equal protection jurisprudence, but that this opportunity has been unfulfilled by the court’s incomplete and inapt treatment of the diversity interest to date. viewing these cases through the lens of “modern diversity practice” both reveals the inadequacy of the court’s treatment of the diversity interest in these cases, and also offers a prescription for the cure. “modern diversity practice” refers to the comprehensive, enterprise-wide strategic diversity initiatives that were developed in the 1990’s.4 rather than a retrospective remedial focus, these diversity !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 regents of the univ. of cal. v. bakke, 438 u.s. 265 (1978). 2 metro broadcasting, inc. v. fcc, 497 u.s. 547 (1990). 3 grutter v. bollinger, 539 u.s. 306 (2003). 4 many of the concepts on which modern diversity practice is based originated from the theories of diversity management articulated first by r. roosevelt thomas jr. in his 1991 work beyond race and gender: unleashing the power of your total workforce by managing diversity and then by david a. thomas and robin j. ely in their 1996 work, making differences matter: a new paradigm for managing diversity, harv. bus. rev., sept.–oct. 1996 at 74, 79. although diversity in higher education traces its origins back to justice powell’s plurality opinion in bakke, campus-wide diversity initiatives in colleges and universities are a much newer endeavor, arguably arising after the inception of corporate diversity practices. see, e.g., ben gose, the rise of the chief diversity officer, the chron. of higher educ., sept. 2006, at b1 (“many campus-diversity experts believe that universities are following the lead of the corporate world, where chief diversity officers have been in vogue since the 1990’s.”); damon a. williams and katrina c. wade-golden, the chief diversity officer, cupa-hr j., spring/summer 2007, at 38 (“in many respects, the development of chief diversity officer roles in higher education follows the same meteoric path that recently took place in the corporate environment and is beginning to emerge in other nonprofit sectors.”). as well, some form of “diversity” initiatives in the united states armed forces date back to the vietnam war era, when disparities in the racial composition of the enlisted and officer ranks resulted in “racial polarization, pervasive disciplinary problems, and racially motivated incidents . . .” consolidated brief of lt. gen. julius w. becton, jr., et al. as amici curiae in support of respondents, grutter v. bollinger and gratz v. bollinger, 539 u.s. 244 (2003) (nos. 02-241, 02-516). yet recent data suggests that the armed services have also adapted their diversity practices to mirror the modern diversity practices of corporate america. see dod directive 1350.2 (aug. 18, 1995) (citing earlier directive of december 23, 1988, governing 78 deliberate defense of diversity vol. 2:1 initiatives are driven and informed by prospective and strategic considerations such as improved business competence,5 increased operational performance,6 and good corporate citizenship.7 modern diversity practice is distinguished herein from the diversity training and other limited diversity practices that were a part of equal opportunity/affirmative action programming as far back as the 1960’s.8 it has long been argued by diversity practitioners9 that the diversity initiatives developed and deployed as a part of modern diversity practice are not repackaged affirmative action programming.10 despite this claim, both critics and skeptics abound. even critical race scholars, who are otherwise staunch proponents of remedial or corrective measures designed to redress the lingering effects of our country’s long and tortured history of civil rights discriminations,11 have frequently criticized diversity.12 notwithstanding these critiques, from the perspective of a diversity practitioner, the distinction between modern diversity practice and affirmative action is more than a notion.13 more troubling than !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! military equal opportunity (meo) program); see also, e.g., gail zoppo, federal agencies competing for top talent, diversityinc, june 2010, at 166, 168 (noting that “[t]he federal agencies . . . have been taking diversity-management cues from corporate america”; quoting captain kenneth j. barrett, head of the navy’s diversity directorate, saying “the navy implemented its diversity plan in 2006 with the stipulation ‘to no longer accept the status quo.’”). 5 see discussion infra section ii.c.1. 6 see discussion infra section ii.c.2. 7 see discussion infra section ii.c.3. 8 see, e.g., rohini anand & mary-frances winters, a retrospective view of corporate diversity training from 1964 to the present, 7 acad. of mgmt. learning & educ. 356, 358. see discussion by r. roosevelt thomas jr. (one of the authors of modern diversity practice), affirmative action: from the perspective of diversity, phylon, autumn–winter 2001, at 99 (noting a “general inability of managers and individual contributors to delineate managing diversity from affirmative action [as] troublesome.”). 9 as a diversity practitioner for well over a decade, i have continuously defended “modern diversity practice” against both practical and legal challenge. i served as a member of the first group practicing diversity in a major national law firm. the group’s leader, weldon latham, was retained by texaco chairman peter i. bijur in the aftermath of the 1996 texaco settlement, see discussion infra section ii.a.1. 10 see avery gordon, the work of corporate culture: diversity management, social text, autumn–winter 1995, at 9 (“diversity management is highly invested in distinguishing itself from affirmative action.”). 11 some of the pioneers include charles lawrence, mari matsuda, kimberlé crenshaw, cheryl harris, patricia williams, derrick bell, richard delgado, and lani guinier, to name a few. these were scholars whom i studied and studied under during my own law school experience. their ideas and critical thinking were formative in shaping my own path as a diversity practitioner and my thinking as an emerging scholar. 12 see, e.g., kenneth b. nunn, diversity as a dead-end, 35 pepp. l. rev. 705, 720 (2008) (citing six reasons why “diversity” fails as a remedial social justice tool); trina jones, the diversity rationale: a problematic solution, 1 stan. j. c. r. & c. l. 171, 176 (2005) (critiquing diversity’s utility as a “vehicle of change” to “further the civil rights agenda”); devon w. carbado & mitu gulati, what exactly is racial diversity?, 91 cal. l. rev. 1149, 1150 (2003) (reviewing andrea guerrero, silence at boalt hall: the dismantling of affirmative action (2002)) (critiquing “diversity” as an “underdeveloped” concept, especially in relation to affirmative action, including as referenced by justice powell in bakke); charles lawrence, each other’s harvest: diversity’s deeper meaning, 31 u.s.f. l. rev. 757, 766 (1997) (criticizing justice powell for “de-coupling” the remedial and diversity interests in bakke). 13 tanya washington offers an equally compelling case for distinguishing between diversity and remedial affirmative action. see the diversity dichotomy: the supreme court’s reticence to give race a capital ‘r’, 72 u. cin. l. rev. 977 (2004). 2012 columbia journal of race and law 79 the scholarly critique, however, is the incomplete and tangled legal framework within which the court has analyzed diversity.14 the court’s analysis of the “diversity interest” suffers first from confusion over the conceptual distinction between remedial affirmative action on the one hand, and the aspirational diversity interest on the other. this conceptual confusion is compounded by the analytical deficiency of our equal protection doctrine to accommodate a non-remedial interest. viewing the diversity interest through the lens of modern diversity practice can help: (1) clarify the definition and scope of the diversity interest; (2) offer an analytic construct for equal protection properly suited to the diversity interest; and (3) provide a substantive response to the skeptics and critics alike. this paper aspires to all three objectives. modern diversity practice has evolved and established itself as distinct from affirmative action. although comparisons of the two often focus on the practical distinctions between modern diversity practice and affirmative action, the core distinction is theoretical.15 modern diversity practice is supported by three dominant theories: (1) the business case (improved business competence), (2) functional theory (increased operational performance), and (3) corporate social responsibility (csr)/pluralism (good corporate citizenship). by contrast, affirmative action is supported solely by a remedial theory. not coincidentally, a remedial theory has also dominated our equal protection jurisprudence. in construing the equal protection clause, the court has relied on a “mediating principle” to give content to the otherwise ambiguous language of the clause.16 this mediating principle operates as a theory of constitutional review. it is a critical analytical construct that provides the framework within which the equal protection analysis operates. it structures the court’s reasoning in evaluating the legitimacy of race-conscious government action (compelling interest), as well as the inquiries that determine the permissible constitutional contours of that race-conscious action (narrow tailoring).17 the mediating principles that have dominated equal protection analysis are the antisubordination and anti-discrimination principles. notwithstanding their differing approaches to achieving equality, both principles are informed by a remedial theory of equal protection. these remedial mediating principles coincide well with our constitutional analysis of affirmative action. however, when !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 14 this conclusion is supported by the commentary of numerous legal scholars who have criticized diversity as a viable means of extending the civil rights progress achieved through affirmative action and traditional remedial/antisubordination efforts. see supra note 12 citing works by trina jones, kenneth nunn, charles lawrence, devon carbado, and mitu gulati. each of these scholars has appropriately identified deficiencies in the current legal doctrines and theories that prevent effective use of diversity under existing anti-discrimination and equal protection law. 15 there are significant practical differences as well, such as the broader scope of the definition of diversity, discussion infra at 8 (including “secondary dimensions” beyond traditional eeo categories), and the broader scope of diversity initiatives, discussion infra section ii.a.2 (encompassing not only employment recruiting and hiring, but also supplier diversity, marketing and communications, and corporate philanthropy). although a discussion of the practical differences between modern diversity practice and affirmative action are beyond the scope of this article, for such a discussion, see steven ramirez, diversity and the boardroom, 6 stan. j. l. bus. & fin. 85, 88 n.8 (2000). 16 see owen m. fiss, groups and the equal protection clause, philosophy & public affairs, winter 1976, at 108 [hereinafter fiss, groups]. john hart ely in his seminal work democracy and distrust referred to the equal protection clause as one of the most “open textured” clauses of the constitution, inviting interpretation from imported meaning outside of the text. john ely, democracy and distrust 13–14 (1980). 17 equal protection claims are subject to varying levels of judicial review. the highest level of review, strict scrutiny, applies to claims involving “race-based” government action. adarand constructors v. pena, 515 u.s. 200, 222 (1995). this paper is directed to claims of race-conscious government action arising under the equal protection clause, which are presumptively subjected to strict scrutiny. to withstand strict scrutiny, race-conscious action must be supported by a compelling government interest and must be narrowly tailored to meet that interest. id. 80 deliberate defense of diversity vol. 2:1 the equal protection clause is called upon to evaluate the merits of the “diversity interest,” these remedial principles prove wholly ineffective to the task of sorting out the constitutional legitimacy of that aspirational interest or defining its constitutional contours. this article is divided into five parts. part ii provides an overview of the history and theory of modern diversity practice 18 with specific attention to the ways in which this history and theory are distinct from the history and theory of affirmative action. part iii offers an overview of the two mediating principles that provide the analytic construct within which our equal protection jurisprudence of race currently operates. through an analysis of the supreme court’s opinions in the three “diversity cases” (bakke, metro broadcasting and grutter), part iv reveals the inadequacy of an equality norm defined solely in terms of a remedial principle of equal protection to effectively accommodate the constitutionally recognized diversity interest. finally, borrowing from justice powell’s abandoned strict scrutiny standard in bakke, part v offers a competing framework for evaluating the constitutional legitimacy of the diversity interest and defining its constitutional contours. ii. distinguishing modern diversity practice from affirmative action in theory a. history & origins of modern diversity practice it would be an overstatement to say that the word diversity or the practice of diversity was foreign to our national lexicon or legal discourse prior to the advent of modern diversity practice. certainly, use of the term “diversity” was widespread in the effort to improve minority representation in many different types of institutions since 1978 when justice powell authored his plurality opinion in regents of the university of california v. bakke,19 wherein it was first acknowledged that, in addition to remedying past discrimination, attaining the educational benefits of “diversity” could justify the use of race-conscious admissions practices by colleges and universities. thereafter, diversity was a common refrain in the equal opportunity context, often appearing alongside affirmative action as part and parcel of a range of equal opportunity efforts.20 nevertheless, in 1996, a once obscure lawsuit against texaco and the ensuing high-profile settlement became the proverbial “game changer” for diversity, particularly in the corporate context.21 texaco became a model not only for future discrimination settlements, but also numerous programmatic diversity initiatives that were developed in corporations across america in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 18 the focus is on corporate diversity practice, see discussion, infra section ii.c, recognizing that there are both similarities and differences between diversity practice in the corporate context and that in other contexts, most notably higher education. however, starting from the premise that corporate diversity practice has served as a template for much of the proliferation of modern diversity practice, see supra note 4, the similarities are paramount and the differences may be of diminishing significance over time. 19 regents of the university of california v. bakke, 438 u.s. 265 (1978). 20 the term “workforce diversity” may trace back as far as 1987, when workforce 2000 was published by the hudson institute, foreshadowing major demographic shifts in the new millennium workforce comprised of dramatically higher numbers of women and minorities, particularly as “net new entrants” to the workforce. anand & winters, supra note 8. 21 see, e.g., geoffrey colvin & eileen p. gunn, the best 50 companies for asians, blacks & hispanics: companies that pursue diversity outperform the s&p 500. coincidence?, fortune (july 19, 1999), available at http://money.cnn.com/magazines/fortune/fortune_archive/1999/07/19/263098/index.htm (“when ceos really speak candidly, they acknowledged that texaco was the case that changed everything.”). 2012 columbia journal of race and law 81 an effort to forestall their own risk of suit, as well as in recognition of the rapid diversification and globalization of labor and economic markets.22 1. texaco suit & the settlement in 1994, six african american texaco employees filed suit on behalf of themselves and a class of approximately 1400 similarly situated employees, claiming that texaco engaged in a pattern and practice of discrimination against african americans in “promotions, compensation, and the terms and conditions of their employment, including training and job assignments.”23 the suit proceeded in relative obscurity for two years. then, in november of 1996, an audiotape of several texaco executives discussing the pending litigation was leaked to the press. the tape included disparaging references to african american employees24 and comments evidencing an intent to withhold and/or destroy documents damaging to texaco’s defense.25 overnight, news of the texaco litigation was splashed across the headlines of every major news outlet, and texaco’s stock plummeted, wiping out nearly $1 billion in market value in a mere two days.26 reverend jesse jackson not only called for an immediate boycott of texaco, but threatened to host a busload of protesters at a texaco shareholder’s meeting in new york city.27 a case that had languished in litigation for years and had been filed for $71 million was settled within weeks for the then record sum of $176.1 million.28 the settlement included arguably the most far-reaching programmatic relief ever negotiated in an employment discrimination suit to that date. the settlement mandated five years of judicial oversight, creation of an outside advisory task force (comprised of civic, business, and civil rights leaders), and implementation of numerous corporate-wide diversity initiatives, together accounting for nearly $40 million of the settlement amount.29 responding to news of the settlement, then texaco chairman peter bijur publicly committed to “take texaco into the 21st century as a model of diversity.”30 and that is exactly what he did. texaco !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 22 there is evidence that these efforts were successful in reducing liability under eeo laws. see, e.g., nancy montwieler, dominguez lauds federal contractors as ‘pivotal’ in attaining eeo, diversity goals, 155 daily lab. rep. (bna) b1 (2004). 23 special master’s report, roberts v. texaco, inc., 979 f. supp. 185 (s.d.n.y. 1997) (no. 94 civ. 2015 (clb)). 24 using coded language, the executives made derogatory remarks about minority employees, including referring to the african-american employees as black jellybeans. see, e.g., nancy levit, megacases, diversity and the elusive goal if [sic] workplace reform, 49 b.c. l. rev. 367, 390 (2008). 25 id.; see also letter from ceo peter i. bijur to employees, available at http://www.texaco.com/sitelets/diversity/taskforce/letter.html. 26 see, e.g., marianne m. jennings, texaco: the jelly bean diversity fiasco, in business ethics: case studies and selected readings (3d ed. 1999). 27see allanna sullivan & peter fritsch, texaco chairman meets advocates for civil rights, wall st. j., nov. 13, 1996, at b3. 28 cheryl wade, corporate governance as corporate social responsibility: empathy & race discrimination, 76 tul. l. rev. 1461, 1463 (2004). 29 id. 30 statement by peter i. bijur (nov. 12, 1996), available at http://www.texaco.com/sitelets/diversity/taskforce/statemnt.html (emphasis added). 82 deliberate defense of diversity vol. 2:1 became not only a model for future employment discrimination settlements (such as the subsequent record-breaking $192 million coca-cola settlement in 1999), but also a model for the emergence of a new corporate diversity paradigm.31 2. rise of corporate diversity practice suddenly corporations were awash in diversity programming focused on diversity recruiting and hiring, affinity groups, and supplier diversity initiatives, among other things.32 the chief diversity officer became the newest member of the corporate executive team, and corporate profiles touted their commitment to, investments in, and results around diversity for both internal and external audiences. critically, from the very start, this diversity paradigm was distinguished from its equal opportunity/affirmative action predecessor in that the scope was broader than mere compliance with legal equal employment opportunity (“eeo”) requirements. these new diversity initiatives explicitly encompassed a broad range of demographic attributes far beyond the traditional affirmative action categories of race and gender, or even the additional eeo categories of religion, national origin, age, and disability. diversity initiatives were defined to include not only sexual orientation,33 but often many intangible attributes that have the ability to contribute to a more robust and dynamic work environment,34 including learning style, work style, organizational role, educational background, work or life experience, and geography.35 therefore, unlike affirmative action, which is defined only to include race, color, religion, sex, and national origin,36 diversity is susceptible to varying definitions across organizations and has expanded over time. this fundamental distinction between the scope of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 31 see, e.g., nancy levit, megacases, diversity and the elusive goal if [sic] workplace reform, 49 b.c. l. rev. 367 (2008) (describing proliferation of diversity initiatives after settlement through consent decree of “megacases” of employment discrimination). 32 see david wilkins, from ‘separate is inherently unequal’ to ‘diversity is good for business’: the rise of market-based diversity arguments and the fate of the black corporate bar, 117 harv. l. rev. 1548, 1556 (2004) (“in the last fifteen years, there has been an explosion in corporate diversity initiatives.”). 33 sexual orientation, as well as gender identity and expression, is a class protected under some state and local eeo laws. 34 one topic of particular interest to modern diversity practice today is generational diversity. this is not about eeo-centric age discrimination in any sense, but about the unique cultural markers framed in terms of the historic events and formative experiences that define generations. anick tolbize, u. minn. research and training ctr. on cmty. living, generational differences in the workplace 2–4 (2008), available at http://rtc.umn.edu/docs/2_18_gen_diff_workplace.pdf. research has demonstrated that issues of generational diversity can transcend the most powerful primary dimensions of identity, such as race and gender. rich paul, engaging the multi-generational workforce, hr mgmt. report, http://www.hrmreport.com/article/engaging-the-multigenerational-workforce/ (last visited jan. 2, 2012). gender-neutral demands for work-life balance that correlate with the rise of generation x and the entry of generation y (or the millenials) in the workforce are emblematic of the way these issues emerge and are understood in modern diversity practice. see tolbize, supra, at 5. 35 in diversity terms, these are distinguished as primary (immutable or physical attributes) and secondary (mutable or intangible attributes) dimensions of diversity. marilyn loden, implementing diversity (1996) (loden introduced this concept through use of a diversity wheel with two concentric circles displaying the primary and secondary dimensions of diversity as inner and outer circles, respectively). 36 eeo equal opportunity clause, 41 c.f.r. § 60-1.4 (2011). pursuant to the 1974 vietnam era veteran’s readjustment assistance act, disabled veterans are also included in some definitions of affirmative action. 38 u.s.c. § 4212(d) (2006) and the implementing regulations at 41 c.f.r. § 61-250.1 et seq. (2008). 2012 columbia journal of race and law 83 affirmative action and modern diversity practice extends beyond the definition of the terms and includes the theories informing diversity. b. history and theory of affirmative action whereas modern diversity practice is a recent phenomenon dating back roughly to the 1990’s, affirmative action traces its origins to 1961 when president john f. kennedy signed executive order 10925 expanding the previous efforts at equal opportunity in government contracting and civil service from mere non-discrimination to “affirmative action.”37 this mandate was extended in 1965 by president lyndon johnson as embodied in executive order 11246, which remains in effect today.38 promulgated as part of the newly enacted civil rights legislation,39 the impetus for the affirmative action mandate of executive order 11246 was the same as the impetus underlying the civil rights act of 1964.40 both executive order 11246 and the civil rights act of 1964 were the culmination of decades of political and civil activism to redress the plight of minorities, particularly african americans, suffering under the weight of discrimination in education and employment, as well as in other areas.41 cases considering and upholding affirmative action pursuant to executive order 11246 specifically and affirmative action programs under title vii generally make this remedial purpose clear.42 affirmative action, therefore, is appropriately understood in relation to this history as the use of race-conscious policies for the specific purpose of redressing past discrimination and its lingering effects.43 notwithstanding a developing body of scholarship assigning other instrumental purposes to affirmative action policies and practices,44 the only such instrumental purpose reflected in the legislative history or judicial interpretation and enforcement of affirmative action is a remedial purpose.45 the developing body of scholarship on instrumental affirmative action is, therefore, more normative than descriptive. the “affirmative action” referred to herein, and contrasted with modern diversity practice, is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 37 j. edward kellough, understanding affirmative action: politics, discrimination, and the search for justice (2006). 38 exec. order no. 11,246, 30 fed. reg. 12319 (sept. 24, 1965). 39 title vii of the civil rights act of 1964 prohibits discrimination in employment on the basis of race, color, national origin, sex, or religion. 42 u.s.c. § 2000(e) (1964). 40 kellough, supra note 37, at 32–33 (in the introduction, kellough explicitly and unequivocally defines affirmative action as “a variety of strategies designed to enhance employment, educational, or business opportunities for groups, such as racial or ethnic minorities and women, who have suffered discrimination.”). 41 see generally francis j. vaas, title vii: legislative history, 7 b.c. l. rev. 431 (1966). 42 see, e.g., united steelworkers v. weber, 443 u.s. 193 (1979); associated gen. contractors, inc. v. altshuler, 361 f. supp. 1293 (d. mass. 1973) (describing affirmative action as a ‘covenant for present performance which will hopefully have the effect of abolishing the results of past discriminations. . . .’) (internal citations omitted); contractor’s ass’n v. sec’y of labor, 442 f.2d 159 (3d cir. 1971) (citing the purpose of the act as “remedial”). 43 jill norgen & serena nanda, american cultural pluralism and law 58 (2006). 44 this shift in scholarship has been marked since the decision in grutter v. bollinger; see generally paul frymer & john d. skrentny, the rise of instrumental affirmative action: law and the new significance of race in america, 36 conn. l. rev. 677 (2004) (describing the post-grutter use of race as instrumental rather than remedial and questioning the legitimacy of this turn towards instrumental affirmative action). 45 see generally kellough, supra note 37; vaas, supra note 41. 84 deliberate defense of diversity vol. 2:1 that commonly understood and adjudicated as remedial in scope and retrospective in outlook.46 by contrast, modern diversity practice is aspirational in scope and prospective in outlook. c. theories of modern diversity practice a catalyst for modern diversity practice was undoubtedly the shockwave that reverberated throughout corporate america as a consequence of the 1996 texaco settlement. corporate ceos, boards, general counsel, and human resource executives were all in agreement that diversity was a useful prophylactic against the threat of texaco-like liability, if nothing else. in other words, the costs of not managing diversity were enormous in terms of the potential for legal liability.47 in this regard, diversity could very well have proceeded along a path very similar to eeo enforcement. however, as modern diversity practice emerged as an independent discipline supported first by experiential learning, then eventually by scholarship and empirical research,48 what was once viewed as a “good” thing to do increasingly became viewed as the “necessary” thing to do. a number of theoretical models emerged to justify continued adherence to and even expansion of modern diversity practice. this article will address the three theories most commonly cited in modern diversity practice. these three theories also coincide with the legal theories that have been articulated, though not fully developed, in support of the “diversity interest” in the equal protection context and thus have particular relevance to the present analysis. 1. the “business case” the first justification that emerged as modern diversity practice evolved is the “business case.”49 the “business case” posits that in an increasingly diverse national and competitive global economy, businesses that fail to leverage diversity to increase competitive advantage, expand market share, and deliver culturally competent products and services will fail to thrive in the twenty-first century marketplace.50 the united states is becoming an increasingly diverse nation. in 1987, the hudson institute published workforce 2000, which simultaneously coined the term “workforce diversity” and marked a finite turning point in our national demography by predicting a “majority minority” nation by the year 2050.51 workforce 2000 had an even greater impact on businesses by also predicting that by the year 2000, eighty-five percent of net new entrants to the labor force would be women and minorities.52 this represented a startling reality for american businesses previously dominated by a white male labor !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 46 id. 47 see levit, supra note 31. 48 see steven a. ramirez, diversity and the boardroom, 6 stan. j. l. bus. & fin. 85, 102 (2000) (discussing the development of empirical support for corporate diversity initiatives). 49 for an extended discussion of the “business case” in broader context, see the seminal work of r. roosevelt thomas jr. beyond race and gender: unleashing the power of your total workforce by managing diversity (1991) and from affirmative action to affirming diversity, harv. bus. rev., mar.–apr. 1990, at 107. 50 see, e.g., brief for general motors corporation as amici curiae supporting respondents at 23–24, grutter v. bollinger and gratz v. bollinger, 539 u.s. 982 (2003), 539 u.s. 244 (2003) (nos. 02-241, 02-516), 2003 wl 399096 [hereinafter brief for general motors]. 51 workforce 2000 (william b. johnston & arnold e. packer eds., 1987). by 2008, this estimate was revised up to 2042. see press release, u.s. census bureau, an older & more diverse nation by midcentury (aug. 14, 2008), available at http://www.census.gov/newsroom/releases/archives/population/cb08-123.html. 52 workforce 2000, supra note 51. 2012 columbia journal of race and law 85 force. the influx of female and minority workers posed a risk of discord in a previously homogenous work culture. but it was not just the labor force that was changing rapidly and dramatically. the marketplace was also rapidly diversifying. in 2009, the combined buying power of the african american, asian american, native american and hispanic markets in the united states was nearly $2 trillion.53 asian american and hispanic growth in buying power over the twenty-year period 1990-2009 far outpaced growth in white buying power, growing by rates of 336% and 361%, respectively, while white buying power grew over the same period by a rate of only 139%.54 the national hispanic buying power alone is larger than the entire economies of all but fourteen countries in the world.55 against this backdrop, it became readily apparent that businesses seeking to capitalize on existing markets, and particularly those seeking to penetrate new markets, needed to focus their attention on minority consumers.56 this market diversification was as significant for businesses as the dramatically changing labor force. this demographic diversity is not just a national phenomenon. three of the world’s five most populous countries are in asia; a fourth is in south america.57 many of the fastest-growing economies in the world are in africa and the middle east.58 increasingly, as technology improves cross-border transactions and diplomacy fosters international trade,59 american businesses are servicing clients and competing for business in a global marketplace where emerging countries represent both an opportunity and a threat. multinational businesses have become the new norm in this global marketplace. servicing clients, delivering products, and managing operations in this context require a new type of business acumen, namely cross cultural competence.60 viewed from this perspective, the diversity of the labor !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 53 $1.96 trillion to be exact, according to the selig center for economic growth at the university of georgia. see jeffrey m. humphreys, the multicultural economy 2009, ga. bus. & econ. conditions, third q. 2009, at 1, available at http://www.terry.uga.edu/selig/docs/gbec0903q.pdf. 54 over the same period, african american buying power grew by 186% and native american buying power by 227%. id. 55 2010 minority buying report of the selig center, terry coll. of bus. (nov. 4, 2010), http:/www.terry.uga.edu/news/releases/2010/minority-buying-power-report.html. 56 “for many industries, multicultural markets represent the largest relatively untapped organic growth opportunity on the horizon.” stephen palacios, aligning diversity, csr and multicultural marketing, harv. bus. sch. publ’g corp., june 2008, at s1. 57 the world’s five most populous countries in descending order are china, india, the united states, indonesia, and brazil. see u.s. census bureau country rankings, u.s. census bureau, http://www.census.gov/population/international/data/idb/rank.php (select “top 10”; click “submit”) (last visited jan. 2, 2012). 58 see economy watch, http://www.economywatch.com (last visited jan. 2, 2012). economywatch is the largest independent online economics community in the world, cited and relied on by the world bank, among others. using data from the international monetary fund’s tracker of gdp growth, economywatch published a ranked forecast of the fastest growing economies in the world in 2011. 59 the end of the cold war has ushered in a new era of global trade, as evidenced by china’s admission to the world trade organization (“wto”) in 2001 and russia’s imminent membership as of the end of 2010. see david jolly, russia clears last hurdle for w.t.o. membership, n.y. times, nov. 10, 2011, http://www.nytimes.com/2011/11/11business/global/russia-clears-last-hurdle-for-wto-membership.html. 60 palacios, supra note 56, at s1 (“in the globalizing economy, building cultural competence is a core asset for business success.”). for a broad discussion on the framework for understanding and applying cross-cultural competence, 86 deliberate defense of diversity vol. 2:1 force represents an economic opportunity. the evidence of the benefits obtained from effectively leveraging cross-cultural competence in the global marketplace and of the costs associated with failing to do so is mounting. increasingly businesses are acknowledging that cross-cultural competence is an integral part of doing business in the rapidly diversifying national and increasingly complex global marketplace. in light of this evidence, businesses quickly transitioned from managing diversity solely as a legal and employee relations prophylactic to integrating diversity management into their strategic operations. instead of merely forestalling the risk of suit, diversity management became a way to improve business performance by increasing competitive advantage, expanding market share, and delivering culturally competent products and services to the new global marketplace. the “business case” for diversity may have developed incidentally, but it has become the chief justification for the proliferation of modern diversity practice over time and across virtually every sector and industry of business. if the texaco settlement was the catalyst for the proliferation of modern diversity practice throughout corporate america, the “business case” was the catalyst for sustaining modern diversity practice and elevating it from a narrow legal or compliance concern to a strategic business imperative.61 2. functional diversity closely related to the “business case” for diversity is the theory of functional diversity. under the theory of functional diversity, it is not the primary dimensions of diversity that matter most, but the secondary dimensions of diversity, i.e., socioeconomic status, geography, work style, learning style, organizational role, function, education, experience, etc.62 under a functional theory, diversity enhances organizational performance by improving problem solving, decision making, and ultimately the quality of output.63 according to this empirical theory, the diversity of background, experience, and perspective in heterogeneous workgroups contributes to greater collaboration, thereby producing superior performance on measures of innovation and problem solving.64 servicing new and emerging markets, as well as the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! see generally james p. johnson, tomasz lenartowicz & salvador apud, cross-cultural competence in international business: toward a definition and a model, 37 j. int’l bus. stud. 525 (2006). 61 it was this shift in particular that marked the turn from “diversity” to “modern diversity practice.” as diversity increasingly became unmoored from its compliance origins, it transitioned from the “diversity” that so often is conflated with affirmative action to a distinct “modern diversity practice” wholly unrestrained by remedial, prophylactic, or legal considerations of non-discrimination. 62 the primary dimensions, to the extent they are relevant, are only relevant because of their interrelationship with the secondary dimensions of diversity. see scott e. page, the difference xiv (2007). 63 see, e.g., frances j. milliken & luis l. martins, searching for common threads: understanding the multiple effects of diversity in organizational groups, 21 acad. of mgmt. rev. 402, 406 (april 1996) (noting positive effects of ethnic and racial diversity on group-level cognitive outcomes); but cf. j. stuart bunderson & kathleen m. sutcliffe, comparing alternative conceptualizations of functional diversity in management teams: process and performance effects, 45 acad. of mgmt. j. at 875 (2002) (noting “empirical studies have shown that functionally diverse teams can be more innovative, can develop clearer strategies, can respond more aggressively to competitive threats, and can be quicker to implement certain types of organizational change than functionally homogenous teams,” but also observing that diversity can “inhibit team process and/or effectiveness”) (internal citations omitted)). 64 see milliken & martins, supra note 63. these benefits tend to increase over time and with improved mediation of the interpersonal conflict inherent with heterogeneous group dynamics. notably, “[n]o theory suggests that a workgroup’s diversity on outward personal characteristics such as race and gender should have benefits except to the extent that diversity creates other diversity in the workgroup, such as diversity of information or perspective.” karen a. 2012 columbia journal of race and law 87 need to create new demand among existing market share all contribute to an increased need for innovation and problem solving. additionally, the move from an industrial to a knowledge economy places increased demand on businesses to effectively manage human capital for maximum qualitative output.65 empirical studies of the benefits of heterogeneous workgroups date back to the 1960’s.66 however, it is not surprising that as diversity management grew as a discipline, increased attention was paid to the returns on this investment.67 diversity practitioners, eager to justify their existence and quantify the value of diversity management to corporate executives, reinvigorated and expanded on this body of work by demonstrating the manifold benefits of diversity in the workplace. the social science of diversity bore out its benefits in at least three important ways. diversity improved decision-making, increased innovation, and produced superior qualitative output.68 these discoveries, coupled with the already increasing awareness of the “business case” for diversity, solidified diversity’s place in the business management of virtually every company competing for market share in the national and global marketplaces.69 however, the functional theory of diversity, much more than the “business case,” generated momentum for the proliferation of modern diversity practice in wide-ranging contexts far outside its corporate origins. the realization that diversity could be an institutional lever, not just a business lever, represented a “tipping point”70 for modern diversity practice. acknowledgment of the functional benefits of diversity spurred the movement of modern diversity practice from the narrow confines of corporate america to an expansive institutional context !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! jehn, gregory b. northcraft & margaret a. neal, why differences make a difference: a field study of diversity, conflict, and performance in workgroups, admin. science qtrly., dec. 1999, at 741, 742. 65 see w. chan kim & renee mauborgne, strategy, value innovation, and the knowledge economy, 40 sloan mgmt. rev. at 41, 44, 51 (1999) (“in creating wealth, knowledge is increasingly taking a front seat to the traditional factors of production . . . [e]ndogenous growth theory . . . informs us of the arrival of the knowledge economy and argues that innovations are no longer exogenous and can be created with the ideas and knowledge within a system.” one of the keys to creation of value innovation is “[t]eam members of diverse backgrounds and perspectives.”). 66 see lois recascino wise, managing for diversity research: what we know from empirical research about the consequences of heterogeneity in the workplace, presentation at the metropolis conference (nov. 27–30, 2001). 67 early diversity literature is particularly focused on the “roi,” or return on investment, in diversity management. this demand for accountability around what by that time had become significant investments in diversity by businesses generated a new body of data and correspondingly new understandings of the operation and benefits of diversity management. 68 see scott e. page, the difference (2007). using empirical models and syllogistic logic, page offers a defense of the benefits of diversity that he characterizes as “mathematical truths, not feel-good mantras.” id. at xiv. page makes bold but substantiated claims, such as “collective ability equals individual ability plus diversity” and “diversity trumps ability.” id. his conclusions are that diversity makes a difference by improving workgroup performance outcomes on dimensions of problem solving, information aggregation, and prediction. id. 69 based on my own experience working with clients across sectors and industries for more than a decade, diversity has been slower to take root in businesses that are more regional or local (versus national or global businesses) and/or that do not compete in open markets for significant revenue streams (i.e., business-to-business enterprises versus consumer-facing enterprises). 70 malcolm gladwell, the tipping point: how little things can make a big difference (2002). gladwell coined this term for the phenomenon when an otherwise ordinary event or thing becomes epidemic in its prevalence and/or impact. id. 88 deliberate defense of diversity vol. 2:1 that included a renewed interest by institutions of higher education,71 a broad embrace by institutions of government,72 and the support of other institutional actors.73 3. pluralism/social responsibility the third, and perhaps newest, theory of modern diversity practice posits that diversity is not just good for business, does not just produce superior results, but is also socially responsible in a multinational global community and in our own pluralist democracy. as modern diversity practice evolved, diversity accountability was increasingly viewed as a part of corporate social responsibility efforts74 and justified in social and moral rather than purely business terms.75 this evolution was driven by a recognition that modern diversity practice had transcended its human capital management origins. it was no longer simply an effort to maximize the contributions of workers by leveraging their diversity internally, but increasingly became an effort to leverage the institutional commitment to diversity with external stakeholders. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 71 numerous colleges and universities have recently undertaken campus-wide diversity initiatives that extend far beyond the admissions programs that were commonplace in the aftermath of the court’s 1978 decision in bakke, 438 u.s. 265 (1978), including harvard university, the university of virginia, the university of maryland, stanford university, the pennsylvania state university, and the university of california, just to name a few. many of these have also appointed officers to oversee newly established diversity offices to coordinate and administer these programs. see, e.g., coleman named chief diversity officer, harv. gazette, dec. 11, 2009, http://news.harvard.edu/gazette/story/2009/12/coleman-named-chief-diversity-officer/ (announcing the appointment of a chief diversity officer at harvard university). 72 several federal agencies have adopted agency-wide diversity practices since the late 1990’s. the most recent example is the dodd-frank act. although the most noted provision of the act is the creation of a federal consumer protection agency, a less noted but no less significant provision of the act (section 342) requires the establishment of offices of minority and women inclusion in each agency overseeing federal banking and securities regulation, including the federal reserve. see pub. l. no. 111-203 [h.r. 4173], § 913 (2010). 73 diversity initiatives can now be found in virtually every type and variety of institutional organization, including hospitals, not-for-profit agencies, and even professional associations. for instance, diversity initiatives abound among the various state and local bar associations, and the american bar association established its own commission on racial and ethnic diversity in the profession as a result of the 1998 goal ix initiative. 74 see palacios, supra note 56, at s2 (quoting subha barry, then global head of diversity and inclusion for merrill lynch and now the senior vice president and chief diversity officer for freddie mac, as saying, “from 2001 to 2004, we saw an evolution on all of these fronts, . . . which resulted in greater alignment” referring to diversity, csr, and multicultural marketing, as well as frank cooper, a pepsico marketing vice president, as saying, “we used to make a business case for csr, then a business case for diversity and inclusion, and then for multicultural marketing. increasingly, these are seen as integrated components of a single strategy.”). see also hresponsibility: where diversity and csr meet, hr gateway, apr. 24, 2004; abagail mcwilliams & donald siegel, corporate social responsibility: a theory of the firm perspective, 26 acad. of mgmt. rev. 117, 122 (2001); john hasnas, the social responsibility of corporations and how to make it work for you, 44 the freeman 332, 333–34 (1994); jamie snider, ronald paul hill & diane martin, corporate social responsibility in the 21st century: a view from the world’s most successful firms, 48 j. bus. ethics 175, 181 (2003). 75 see, e.g., brief for general motors, supra note 50, at 23–24 (noting “[a] stratified work force, in which whites dominate the highest levels of the managerial corps and minorities dominate the labor corps, may foment racial divisiveness. it also would be retrogressive, eliminating many of the productivity gains businesses have made through intensive efforts to eradicate discrimination and improve relations among workers of different races.”) 2012 columbia journal of race and law 89 corporate social responsibility (“csr”) concerns a business’s management of its impact on environmental, ethical, social and economic issues in the communities in which it operates.76 csr not only ensures that businesses act responsibly with regard to their impact on communities, but seeks to have a positive impact to the greatest extent possible.77 thus, modern diversity practice as informed by csr implies exceeding legal obligations78 rather than mere eeo compliance. in this regard, modern diversity practice attempts to further some social good.79 businesses realized the need to reflect not just the interests of the communities that they serve, but to reflect the diversity of those communities. diversity as csr is an expression of the pluralist values inherent in our constitutional principles as a nation of “we the people.”80 “we the people” demands that government be both representative of and accountable to the varied constituencies from which it is derived.81 the pluralist principle of corporate social responsibility similarly demands that the operation and impact of business responds to a multiplicity of interests and constituencies. the pluralist theory of modern diversity practice reflects the need to be broadly inclusive in providing access to the economic enterprise, both at the individual institutional and collective societal levels. 82 this csr/pluralist theory of diversity is distinct from the earlier moral justifications for affirmative action, which were entirely remedial.83 many corporate stakeholders, including consumers,84 community activists, and shareholders,85 value these positive csr !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 76 see archie b. carroll, corporate social responsibility: evolution of a definitional construct, 38 bus. & soc’y 268 (1999). 77 id. 78 mcwilliams & siegel, supra note 74, at 117 (“thus, a company that avoids discriminating against women and minorities is not engaging in a socially responsible act; it is merely abiding by the law.”). 79 paul c. godfrey, craig b. merrill & jared m. hansen, the relationship between corporate social responsibility and shareholder value: an empirical test of the risk management hypothesis, 30 strategic mgmt. j. 425, 427 (2009). in contrast, affirmative action attempts to remedy a social harm. see discussion supra section ii.b and accompanying notes. 80 u.s. const. pmbl. 81 id. this is merely another form of our expression of self-government as “of the people, by the people, for the people.” 82 i am neither the first, nor the only, person to suggest that corporate america has preceded government in some respects in advancing the ideals of equality, particularly racial and gender equality. see, e.g., wade, supra note 28 at 1463 (citing vicki schultz, life’s work, 100 colum. l. rev. 1881 (2000) and cynthia l. estlund, the changing workplace as a locus of integration in a diverse society, 2000 colum. bus. l. rev. 331, 332 (2000) for the proposition that corporate workplaces have served as “a vanguard institution in the movement for greater equality and integration on the basis of race and ethnicity in the society as a whole.”). 83 see discussion supra section ii.b. 84 see yuliya strizhakova et al., responses of global citizens to cause-related green marketing (nov. 4, 2010) (unpublished manuscript), available at http://www.camden.rutgers.edu/pdf.marketing.pdf (on file with the author) (analyzing the economic impact of tying marketing of products to “green” causes in various world markets, noting “[i]n response, global and local companies are actively engaging in green marketing in the u.s. and western europe, gaining competitive advantages and building up their brand equity.” id. at 3). 85 godfrey, supra note 79. launched in 1982, the calvert social investment fund was one of the first investment management groups specializing in “socially responsible” investing. according to calvert, “responsible management of environmental, social and governance (esg) factors contributes to sound financial performance which, in turn, can translate into long-term shareholder value.” calvert investments, http://www.calvert.com/sricalvert.html (last visited jan. 4, 2012). 90 deliberate defense of diversity vol. 2:1 investments. this value, in turn, translates to greater market share and positive returns on these investments. what distinguishes each of these theories of modern diversity practice from the remedial theory of affirmative action is their aspirational character. the business case, functional theory, and pluralist justification for modern diversity practice each express an aspirational goal. they promote diversity in pursuit of some future benefit, rather than to redress some past wrong. even when the actions taken in pursuit of diversity look and feel very similar to affirmative action, it is this prospective and aspirational motivation behind diversity, compared to the retrospective and remedial character of affirmative action, that marks the distinction. it is the difference of “why,” not the difference in “what” that distinguishes diversity materially and fundamentally from affirmative action.86 it is this distinction that should inform our understanding and analysis of the two under equal protection law. in determining what the “diversity interest” means in the context of equal protection law, we can reference these theoretical distinctions to help us identify legal distinctions and establish a new legal construct to inform our equal protection analysis. however, before discussing how modern diversity practice can inform our understanding of the diversity interest under modern equal protection law, it is helpful to first put equal protection law in historic context. iii. the mediating principles of equal protection it has frequently been acknowledged that the simple words of the equal protection clause instructing that “no state shall deny to any person within its jurisdiction the equal protection of the laws” are susceptible to different meanings,87 and must necessarily rely on some extra-textual reference for its construction and interpretation.88 in his seminal 1976 work, owen fiss described this extra-textual !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 86 lest this distinction between the “why,” rather than the “what,” of diversity and affirmative action appear to be superficial, insignificant, or a mere exercise in semantics, let me offer an argument by analogy. there are many areas of the law where our terminology, understanding, and analysis turn critically on the “why” and not the “what” of certain actions. killing is an action whose meaning, understanding and analysis under criminal law is dependent not on the mode of killing, but on the motivation for killing. killing to avoid imminent harm to oneself or another is “self-defense.” see model penal code § 3.04(2)(b), 3.05(1) (1985). whereas killing with premeditated intent to cause death or severe bodily harm to another without provocation is “murder.” see id. at § 210.2. closer to the point at hand, we find a similar analogy in constitutional law. speech is subject to differing constructions, understandings, and analysis under first amendment law depending on the type of speech involved. threatening words can in one instance be an actionable crime and in another be protected political speech. this distinction turns not on the words spoken, but on the intent of the speaker and the context of the speech. see, e.g., watts v. united states, 394 u.s. 705, 707 (1969) (reasoning “[w]hat is a threat must be distinguished from what is constitutionally protected speech” in finding that the context of the case and evidence of the petitioner’s intent require an understanding of his speech as constitutionally protected political speech rather than a criminal threat). the same is true for race-conscious measures. they can be on the one hand taken in pursuit of some future benefit not inuring to any particular class of persons, but to institutions or society at large (these are aptly described as diversity measures), or on the other hand taken for corrective or remedial purposes and inure exclusively to the benefit of an identified class of aggrieved persons (these are appropriately defined as affirmative action). 87 see regents of the univ. of cal. v. bakke, 438 u.s. 265, 337 (brennan, j., concurring) (describing the equal protection clause as an “evolving judicial doctrine”); see also id. at 339 (powell, j., concurring) (noting that, in 1963 and 1964, the equal protection clause was “in a state of flux and rapid evolution”). 88 even in the seminal equal protection case, brown v. bd. of educ., 347 u.s. 483 (1954), notwithstanding an extensive discussion and investigation of the legislative history surrounding the adoption of the fourteenth amendment, the court concluded that this evidence was inconclusive at best of the proper construction of the equal protection clause to the question presented there. id. at 489; see also john hart ely, democracy and distrust 31 (1980) (“[u]nder the equal protection clause . . . [t]he constitutional text doesn’t give us a clue as to what [the standards] might 2012 columbia journal of race and law 91 reference as a “mediating principle”89 and defined the two dominant mediating principles for the equal protection clause as the anti-discrimination and anti-subordination principles.90 these two “mediating principles” have dominated the scholarly literature since that time91 and informed the legal jurisprudence of the equal protection clause since its inception.92 they have become competing frameworks in an ongoing struggle to shape the contours and define the content of our equal protection doctrine, notwithstanding the fact that both principles originate from the same remedial view of equal protection. both the anti-subordination and anti-discrimination principles purport to express the dominant theory by which our equal protection clause should be adjudicated. the argument here is not against either or both of these principles as legitimate theories of equal protection.93 the argument here is against the exclusivity of these principles as the only interpretive construct for developing our equal protection jurisprudence, especially in an evolving and increasingly modern context. the antisubordination and anti-discrimination principles derive from cases adjudicating our former de jure system of racial segregation and the resultant de facto system of racial discrimination.94 this context provides an inadequate framework for conceiving of equal protection outside of these remedial circumstances. these cases theorize and construe equal protection in a discrete historical context, notwithstanding a consistent acknowledgement that equal protection is neither substantively nor conceptually limited to that context.95 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! be, and we are left with a provision whose general concern—equality—is clear enough but whose content beyond that cannot be derived from anything within its four corners or the known intentions of its framers.”). 89 fiss, groups, supra note 16, at 108. 90 id. fiss originally defined this latter principle as the “group disadvantaging principle,” but later acknowledged its adoption and redefinition as the anti-subordination principle. see owen fiss, another equality, 20 issues in legal scholarship at 1 (2004), available at http://www.bepress.com/ils/iss2/art20 [hereinafter fiss, another equality]; see also ruth colker, anti-subordination above all: sex, race, and equal protection, 61 n.y.u. l. rev. 1003 (1986) (citing the two dominant theories of equal protection jurisprudence as anti-differentiation (or anti-discrimination) and antisubordination). 91 see reva b. siegel, equality talk: anti-subordination and anti-classification values in constitutional struggles over brown, 117 harv. l. rev. 1470, 1474 (2004) [hereinafter siegel, equality talk] (acknowledging an understanding of antidiscrimination and anti-subordination as the two dominant competing theories of equal protection jurisprudence did not arise until decades after the brown decision); see also paul brest, foreword: in defense of the antidiscrimination principle, 90 harv. l. rev. 1 (1976); colker, supra note 90, at 1003; john hasnas, equal opportunity, affirmative action and the antidiscrimination principle: the philosophical basis for the legal prohibition of discrimination, 71 fordham l. rev. 424 (2002) (adding a third anti-oppression principle, which is a subset of the anti-subordination principle, and designating the antidiscrimination principle as anti-differentiation). 92 see discussion infra section iii.a–b. 93 in choosing between these competing principles for construing the remedial mandate of our equal protection clause, i do, however, firmly and steadfastly subscribe to the anti-subordination theory. 94 see discussion infra section iv. 95 in strauder v. west virginia, 100 u.s. 303, 307 (1879), while noting “[w]e doubt very much whether any action of a state, not directed by way of discrimination against the negroes, as a class, will ever be held to come within the purview of [the equal protection clause],” the court nevertheless went on to conclude, “we are not now called upon to affirm or deny that [the equal protection clause] had other purposes.” id. at 310. later, in brown v. board of education, 347 u.s. 483, 489 (1954) [hereinafter brown i], when the court rejected the “separate but equal” doctrine, the court reasoned that even the history of ratification shed no instructive light on the meaning of the equal protection clause, noting that “circumstances surrounding the adoption of the fourteenth amendment in 1868 [were] . . . [a]t best, 92 deliberate defense of diversity vol. 2:1 a. anti-subordination in constructing the anti-subordination principle, fiss chose as the “theory of primary reference” the remedying of discrimination against blacks.96 indeed, even constitutional historians, though they debate the ultimate intention of the framers in constructing the equal protection clause, agree that one cannot escape the historical context of the ratification of the fourteenth amendment as part of the reconstruction amendments, and the necessary implications of that context on the construction of the clause.97 fiss himself bolsters his remedial theory of equal protection by reference to the court’s construction of the clause as the primary tool for the protection of blacks.98 this judicial origin for the anti-subordination principle of equal protection is well-founded. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! . . . inconclusive” particularly as it pertained to equality in public education because there was “so little in the history . . . relating to its intended effect on public education.” id. at 490. again, in regents of the university of california v. bakke, 438 u.s. 265, 293 (1978), the court noted that “[a]lthough many of the framers of the fourteenth amendment conceived of its primary function as bridging the vast distance between members of the negro race and the white ‘majority,’ . . . the amendment itself was framed in universal terms,” with the intent being to “establi[sh] in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed negro slaves.” finally, as recently as adarand constructors v. pena, 515 u.s. 200, 228 (1995) (stevens, j., dissenting), notwithstanding an acknowledgement that the strict scrutiny standard was intended to “evaluat[e] carefully all governmental race-based decisions in order to decide which are constitutionally objectionable and which are not,” justice o’connor’s plurality opinion acknowledged that the court was still adjudicating a law designed to “deal with the problem of racial discrimination,” and not to deal with some different or broader notion of equality inherent in the equal protection clause. see id. at 230. these cases demonstrate that there has been some judicial instinct to recognize a broader purpose in the equal protection clause than merely remedying a history of discrimination, but that instinct has not been fully realized because so much of the case law has developed in the adjudication of discriminatory jim crow laws and the subsequent remedial laws. only recently has our equal protection jurisprudence considered non-remedial uses of race, with varied responses. compare grutter v. bollinger, 539 u.s. 306 (2003) (upholding a diversity admissions program), petit v. city of chicago, 352 f.3d 1111 (7th cir. 2003) (upholding a race-conscious police assignment plan to facilitate community policing), reynolds v. city of chicago, 296 f.3d 524 (7th cir. 2002) (upholding a race-conscious promotion plan of hispanic police officers to facilitate diversity and public safety), and wittmer v. peters, 87 f.3d 916 (7th cir. 1996) (permitting race-conscious staffing at boot camp to facilitate diversity and safety), with lomack v. city of newark, 463 f.3d 303 (3d cir. 2006) (striking down a race-conscious assignment plan for firefighters to facilitate diversity), patrolmen’s benevolent ass’n v. city of new york, 310 f.3d 43 (2d cir. 2002) (striking down a racial assignment plan in the police department to facilitate diversity and public safety), and sch. bd. of piscataway v. taxman, 91 f.3d 1547 (3d cir. 1996) (striking down a layoff plan adopted to achieve racial diversity among school teachers). 96 while acknowledging the generality of the equal protection clause’s language and admitting its broad scope, fiss nonetheless argued that “blacks were the intended primary beneficiaries, [and] that it was a concern for their welfare that prompted the clause.” fiss, groups, supra note 16, at 147. reva siegel has described it as “the conviction that it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups.” siegel, equality talk, supra note 91, at 1472. 97 see generally andrew kull, the color-blind constitution (1992) (recounting the history of the ratification of the equal protection clause, including the reasons advanced in support of ratification in historic context). 98 fiss, groups, supra note 16, at 147. “other insular minorities” would presumptively be subject to a similar construction under the infamous footnote 4 of united states v. carolene products co., 304 u.s. 144 (1938). notwithstanding this presumptively broad application to “other insular minorities,” discussion of historical subjugation on the basis of race (blacks) and gender (women), and the equal protection implications of both dominate the literature and case law. see, e.g., colker, supra note 90, at 1006–07 (arguing not only that race and gender do dominate equal protection analysis, notwithstanding these other possible bases of inequality, but also that they should dominate equal protection analysis). 2012 columbia journal of race and law 93 in the first equal protection case, the slaughterhouse cases,99 decided just four short years after the ratification of the fourteenth amendment, the court observed that, in light of the history of these amendments, and the pervading purpose of them . . . it is not difficult to give a meaning to this clause. the existence of laws in the states where newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause . . . . we doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. it is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other.100 in the slaughterhouse cases, the court was not construing a law directed against the “newly emancipated negroes,” but the butchers of louisiana. compelled by the force of the historical context of the amendment and recognizing this “pervading purpose” of the equal protection clause, the court denied the equal protection claim of the louisiana butchers. it was not until 1879 that the court had occasion to construe the equal protection clause in a case involving a state law directed against the “newly emancipated negroes.” in strauder v. west virginia,101 the court considered a challenge by a “colored man . . . indicted for murder” to the law of the state of west virginia precluding colored men from serving as members of a jury.102 in striking down the law as a violation of the equal protection clause, the court cited the reasoning of the slaughterhouse cases and further noted, the true spirit and meaning of the amendments . . . cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. . . . no one can fail to be impressed with the one pervading purpose found in all the amendments . . . the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.103 by this pronouncement, the anti-subordination principle of the equal protection clause was born, though not acknowledged as such until decades later.104 from these beginnings, equal protection jurisprudence established a decidedly remedial legal framework. the remedy has ranged from vindicating blacks (and other subordinated groups) from the threat of oppressive legislation and subordinating state action105 to compensating blacks for the lingering effects of past discriminatory actions.106 however, the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 99 the slaughter-house cases, 83 u.s. 36 (1872). 100 id. at 81. 101 strauder v. west virginia, 100 u.s. 303 (1879). 102 id. at 304. 103 id. at 306–07. 104 see siegel, equality talk, supra note 91. 105 see strauder, 100 u.s. 303; sweatt v. painter, 339 u.s. 629 (1950) (considering racially segregated state law schools); brown v. bd. of educ., 347 u.s. 483 (considering racially segregated public schools and overturning the “separate but equal” doctrine); palmer v. thompson, 403 u.s. 217 (1971) (considering racially segregated public pools); 94 deliberate defense of diversity vol. 2:1 underlying principle of this remedial scheme remains the same, elevating the status of formerly subordinated groups to that of full citizens, with the full rights and benefits of that citizenship, including the right to be free from discrimination and its ill effects.107 it is this latter aim that has become the centerpiece of the modern anti-subordination principle of equal protection. brown v. board of education108 (brown i) was its beginning. brown i is not only the most celebrated equal protection case in our history, but it also captures the anti-subordination principle more cogently and expresses it more forcefully than any other. the facts of brown i are familiar. it was a consolidated appeal of a series of cases on behalf of “minor negro plaintiffs” challenging public school segregation laws in kansas, south carolina, virginia and delaware as a violation of the equal protection clause.109 in striking down state-sponsored segregation in public schools, the court reasoned, “segregation of white and colored children in public schools has a detrimental effect upon the colored children . . . denoting the inferiority of the negro group.”110 this perpetuation of the inferior status of black children caused the court to invalidate the long-standing equal protection principle of “separate but equal”111 and thereby breathe new life into the anti-subordination principle. swann v. charlotte-mecklenburg board of education112 extended the anti-subordination principle of brown i from merely disrupting the legal subordination of blacks through desegregation to enforcing a more affirmative remedial aim through integration.113 although brown ii114 ordered public schools !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! jones v. alfred h. mayer co., 392 u.s. 409 (1968) (considering racially segregated housing); mclaughlin v. florida, 379 u.s. 184 (1964) (discussing interracial cohabitation); loving v. virginia, 388 u.s. 1 (1967) (interpreting a state statute prohibiting interracial marriage); but cf. plessy v. ferguson, 163 u.s. 537 (1896) (permitting segregation of blacks in intrastate railway cars). 106 see swann v. charlotte-mecklenberg bd. of educ., 402 u.s. 1 (1971), discussed infra notes 112–121; united steelworkers v. weber, 443 u.s. 193 (1979) (sanctioning an affirmative action program reserving half of the positions in a skilled craft workers’ training program for blacks to compensate for past discrimination in the skilled craft unions); johnson v. transportation agency, 480 u.s. 616 (1987) (permitting hire of a qualified female applicant over a qualified male applicant on the basis of gender to further affirmative action goals); united states v. paradise, 480 u.s. 149 (1987) (permitting 1-for-1 promotion of black-to-white officers to eradicate the effects of past discriminatory hiring and promotion practices); fullilove v. klutznick, 448 u.s. 448 (1980) (sanctioning federal minority contractor set-aside program as a remedy for past discrimination); and various voting rights cases that precede shaw v. reno, 509 u.s. 630 (1993), e.g., united jewish orgs. v. carey, 430 u.s. 144 (1977) (sustaining racial redistricting pursuant to the voting rights act of 1965 against an equal protection challenge). 107 fiss, groups, supra note 16. 108 347 u.s. 483 (1954). 109 id. at 483. 110 id. at 494. 111 the “separate but equal” doctrine originated in the court’s 1896 decision in plessy v. ferguson, 163 u.s. 537 (1896). plessy involved a challenge by a negro citizen to a state statute prohibiting integrated passage on railways in intrastate travel. the court upheld the statute on the rationale that so long as the accommodations were “separate but equal,” the law did “not necessarily imply the inferiority of either race to the other.” id. at 544. the “separate but equal” doctrine governed equal protection jurisprudence from the court’s decision in plessy in 1896 until the court’s 1954 ruling in brown i, declaring “separate . . . inherently unequal.” brown i, 347 u.s. 483, 495. 112 402 u.s. 1 (1971). 113 between brown and swann, there was a series of equal protection cases challenging facially discriminatory statutes or other de jure or de facto discriminatory state action that did not implicate the distinction between the anti2012 columbia journal of race and law 95 desegregated “with all deliberate speed,” compliance by school districts was spurious at best. when and where it did occur, the de jure desegregation efforts rarely resulted in de facto desegregated schools.115 the charlotte-mecklenburg school system typified these results; and notwithstanding implementation of a court-ordered desegregation plan during the 1968-1969 school year, the majority of charlottemecklenburg school district’s negro students attended schools that were ninety-nine percent black.116 if the intent of brown i was to eliminate de jure segregation in public schools, the intent of swann was to “eliminate from the public schools all vestiges of state-imposed segregation,”117 or to eliminate de facto segregation. the remedies ordered to achieve this effect included: (1) racial balancing;118 (2) the altering of attendance zones, and (3) perhaps the most commonly cited remedy, busing.119 this extension of the court’s constitutional jurisdiction, from declaring active segregation a violation of the equal protection clause to affirming a remedial obligation to redress the lingering effects of past segregation, marked a subtle but significant expansion in the construction of the anti-subordination principle of equal !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! subordination and anti-discrimination principles. see, e.g., turner v. city of memphis, 369 u.s. 350 (1962) (enjoining the city and airport from operating segregated eating and restroom facilities); griffin v. maryland, 378 u.s. 130 (1964) (invalidating state action to enforce segregation of state parks); mclaughlin v. florida, 379 u.s. 184 (1964) (striking down a statute prohibiting habitual cohabitation of interracial unmarried persons); south carolina v. katzenbach, 383 u.s. 301 (1966) (upholding provisions of the voting rights act of 1965 designed to preclude disenfranchisement of black voters); harper v. va. state bd. of elections, 383 u.s. 663 (1966) (invalidating virginia poll tax as a violation of the equal protection clause in denying blacks’ right to vote); loving v. virginia, 388 u.s. 1 (1967) (striking down a statute prohibiting interracial marriage); but cf. palmer v. thompson, 403 u.s. 217 (1971) (denying relief to negro claimants challenging state’s decision to close public pools rather than operate pools on a desegregated basis). these cases struck down overt attempts to subordinate or perpetuate the subordination of blacks. the tension between the antisubordination and anti-discrimination principles did not arise until after swann began the movement toward affirmative relief not from the ongoing subordination of blacks, but from the lingering effects of past discriminatory actions. 114 brown ii, 349 u.s. 294, 301 (1955). 115 swann, 402 u.s. at 13 (“deliberate resistance of some to the court’s mandates has impeded the good-faith efforts of others to bring school systems into compliance. the detail and nature of these dilatory tactics have been noted frequently by this court and other courts.”). 116 id. at 1. 117 id. at 15. this reflects the court’s use of the anti-subordination principle in construing the constitutional violation and shaping the contours of the constitutional remedy. this is in marked contrast to the use of the antidiscrimination principle, which merely abjures discriminatory conduct, but does nothing, or at least nothing raceconscious, to correct the ill effects of prior discriminatory conduct. see discussion infra section iii.b. the antidiscrimination principle is represented by the argument of the mobile, alabama, school board in the companion case to swann, davis v. bd. of sch. commissioners, 402 u.s. 33 (1971). in swann, the court asserted both that “the constitution requires that teachers be assigned on a ‘color blind’ basis” and “that the constitution prohibits district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation.” swann, 402 u.s. at 19 (citing davis, 402 u.s. 33). the court rejected both these contentions, favoring instead the anti-subordination argument that the equal protection clause does indeed require that the court “eliminate from the public schools all vestiges of state-imposed segregation” by exercising its broad and flexible remedial powers. id. at 15. 118 it is notable that the court is explicit in swann in ordering “racial balancing” as an appropriate remedy to cure the lingering effects of segregation. swann, 402 u.s. 1. without expressly overruling its decision in swann, the court has more recently denounced “outright racial balancing” as impermissible under the equal protection clause. see parents involved in cmty. schs. v. seattle sch. dist. no. 1, 551 u.s. 701 (2007) [hereinafter parents involved]. 119 swann, 402 u.s. at 22–31. 96 deliberate defense of diversity vol. 2:1 protection.120 it was this remedial impetus, given constitutional imprimatur, which spawned affirmative action.121 however, this affirmative pursuit of the remedial goals underlying equal protection was shortlived. b. anti-discrimination if the aim of the anti-subordination principle is to proscribe and redress oppressive, race-based government action, then the aim of the anti-discrimination principle is to proscribe the use of race as a legitimate basis for any government action. the remedial premise is the same, the means of achieving it merely changed. now, rather than reasoning that to “get beyond racism, we must first take account of race,”122 the court began to reason that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”123 this aim of eradicating race-conscious action has given rise to the alter ego of the anti-discrimination principle: colorblindness.124 although it is commonly argued that the colorblindness ideal of equal protection originated in justice harlan’s historic dissent in plessy v. ferguson,125 the anti-discrimination principle did not present itself at odds with the anti-subordination principle until after the landmark case of brown i, and even more notably after swann.126 in his 1975 tome, alexander bickel aptly described the growing rift between the anti-discrimination principle and the anti-subordination principle as follows: the lesson of the great decisions of the supreme court and the lesson of contemporary history have been the same for at least a generation; discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 120 the court reasoned that “[o]nce a right and a violation have been shown, the scope of [the] court’s equitable powers to remedy past wrongs is broad . . . the task is to correct, by balancing of the individual and collective interests, the condition that offends the constitution.” id. at 15. 121 see discussion supra section ii.b for a history of affirmative action, the remedial theory underlying it, and its evolution. 122 regents of the univ. of cal. v. bakke, 438 u.s. 265, 407 (blackmun, j., concurring in part and dissenting in part). 123 parents involved, 551 u.s. at 741–42. 124 see generally john marquez lundin, the call for color-blind law, 30 colum. j. l. & soc. probs. 407 (1997); jennifer r. byrne, toward a colorblind constitution: justice o’connor’s narrowing of affirmative action, 42 st. louis u. l.j. 619, 651 (1998) (defining colorblind constitutionalism as the protection of individuals regardless of race and requiring the same criteria in distributing benefits and burdens to all individuals regardless of race). 125 plessy v. ferguson, 163 u.s. 537 (1896). in his infamous dissent, justice harlan argued against the statute prohibiting integrated passage on intrastate railways by declaring, “in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizen. there is no caste here. our constitution is color-blind, and neither knows nor tolerates classes among citizens. in respect of civil rights, all citizens are equal before the law.” id. at 559. this refrain is now commonly invoked by anti-discrimination advocates to support a “colorblind”/antidiscrimination view of the equal protection clause. see, e.g., william bradford reynolds, individualism vs. group rights: the legacy of brown, 93 yale l.j. 995 (1984). 126 lawyers for the plaintiffs in brown i argued for application of the colorblind standard of equal protection identified by justice harlan in plessy to support their claim for desegregation. now that the colorblind anti-discrimination principle is asserted in opposition to affirmative remedial efforts to cure the lingering effects of discrimination, the colorblind ideal has been repudiated by traditional civil rights advocates. 2012 columbia journal of race and law 97 society. now this is to be unlearned and we are told that this is not a matter of fundamental principle but only a matter of whose ox is gored.127 thus the anti-discrimination principle, first articulated in plessy to oppose the oppression of blacks under segregation laws, was now being used to challenge the resulting remedial efforts. this shift was not only reflected in the scholarly literature, but also in the court’s own equal protection jurisprudence. as affirmative action expanded aggressively post-swann, the court’s equal protection analysis reacted with an equally swift retreat from the anti-subordination principle and towards the antidiscrimination principle. regents of the university of california v. bakke,128 most often hailed for its formulation of the diversity interest in equal protection,129 can be equally heralded for its acknowledgment of the emerging anti-discrimination principle of equal protection. the first case to consider affirmative action programs in a context where prior discriminatory conduct by the defendant institution was not in evidence, bakke presented an opportunity for departure from the post-brown era of enforcing an anti-subordination principle of equal protection.130 the court seized on this opportunity. citing as the university’s proffered remedial justification for the affirmative action program, “countering the effects of societal discrimination,” justice powell, writing for the plurality, reasoned that the “purpose of helping certain groups . . . perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons . . . who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”131 articulating the crux of the anti-discrimination principle, powell went on to cite “[f]airness in individual competition for opportunities . . . [as] a widely cherished american ethic,”132 and concluded that, “[t]he fatal flaw in petitioner’s preferential program is its disregard of individual rights as guaranteed by the fourteenth amendment.”133 this elevation of the individual rights of those persons disadvantaged by these remedial efforts over the rights of those groups of persons benefited became the centerpiece of the anti-discrimination principle. although racial classifications have long been recognized as uniquely “suspect,”134 and thereby subject to strict scrutiny,135 the strict scrutiny analysis that developed under the anti-discrimination principle shifted the primary concern from remediating harm to blacks and other subordinated groups to minimizing !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 127 alexander bickel, the morality of consent 133 (1975). 128 bakke, 438 u.s. 265. for a detailed discussion of the factual and legal background in bakke, see discussion infra section iv.a. 129 see discussion infra section iv.a. 130 distinguishing the facts in bakke from those of swann and the other brown ii progeny, the court noted, “the school desegregation cases are inapposite. . . . here, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification.” bakke, 438 u.s. at 300–01 (internal citations omitted). 131 id. at 310. 132 id. at 319. 133 id. at 320. 134 korematsu v. united states, 323 u.s. 214, 216 (1944). 135 id. 98 deliberate defense of diversity vol. 2:1 harm to “innocent persons.”136 the anti-discrimination principle has increasingly become the majority view of the court on matters of affirmative action.137 however, neither this principle, nor its analytic construct under strict scrutiny, is useful to inform our understanding of how to construe equal protection when the use of racial classifications is not remedial. 138 c. remedial principles provide an inadequate equal protection framework for the diversity interest remedial principles provide an inadequate equal protection framework for the diversity interest. if the diversity interest recognized by the court in bakke,139 metro broadcasting, inc.,140 and grutter141 acknowledges a non-remedial aim, the anti-subordination and anti-discrimination principles are wholly inadequate to assess the legitimacy of that interest or define its constitutional limits. viewing the diversity interest through the lens of modern diversity practice – that is, in view of the clearly defined aspirational aims of diversity − reveals that the remedial equal protection framework established by the antisubordination and anti-discrimination mediating principles is misaligned with the theoretical structure and substantive content of the diversity interest. iv. the “diversity interest” the triumvirate of cases that form the basis of the “diversity interest” under equal protection are bakke,142 metro broadcasting, inc. v. fcc,143 and grutter v. bollinger.144 each of these cases justifies the use of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 136 see wygant v. jackson bd. of ed., 476 u.s. 267, 282 (1985) (striking down a layoff play designed to remedy the effects of past discrimination because of the burden imposed on innocent persons). 137 see city of richmond v. j.a. croson co., 488 u.s. 469, 510 (1989) (referring to the strict scrutiny standard as necessary to “define both the scope of the injury and the extent of the remedy necessary to cure its effects.”); adarand constructors v. pena, 515 u.s. 200, 230 (1995) (adopting the croson strict scrutiny standard for federal as well as state remedial uses of race, noting explicitly that “any individual suffers an injury when . . . disadvantaged . . . because of race, whatever that race may be.”); grutter v. bollinger, 539 u.s. 306, 323 (2003) (referencing the necessary limit of racial classifications by “judicial determination that the burden [non-minorities are] asked to bear . . . is precisely tailored to serve a compelling government interest.”). 138 i acknowledge that we are far from fully realizing this remedial purpose. however, that fact does not negate the existence of broader equality aims inherent in our equal protection clause. nor do i believe that pursuit of these broader equality aims is in conflict with continued pursuit of the remedial aims of equal protection. it should equally be noted that the inadequacy of this limited equal protection construct is also evident in equal protection cases construing issues other than race. see, e.g., craig v. boren, 429 u.s. 190 (1976) (gender), city of cleburne v. cleburne living ctr., 473 u.s. 432 (1985) (disability), romer v. evans, 517 u.s. 620 (1996) (sexual orientation), weber v. aetna casualty & surety co., 406 u.s. 164 (1972) (illegitimacy), and lau v. nichols, 414 u.s. 563 (1974) (national origin). each of these cases demonstrates the inadequacy of a mediating principle of equal protection, whether anti-subordination or antidiscrimination, that relies exclusively on a remedial race-based approach to equality. 139 regents of the univ. of cal. v. bakke, 438 u.s. 265 (1978). 140 metro broadcasting, inc. v. fcc, 497 u.s. 547 (1990). 141 grutter, 539 u.s. 306. 142 bakke, 438 u.s. 265. 143 metro broadcasting, 497 u.s. 547. 144 grutter, 539 u.s. 306 (2003). 2012 columbia journal of race and law 99 race-conscious action under the equal protection clause by appeal to a “diversity interest.” notwithstanding the rhetoric of diversity, the court in each of these cases fails to fully recognize145 and analyze the diversity interest in two critical respects. first, none of the three cases recognizes an interest in diversity wholly distinct from a remedial interest. rather, in defending and sustaining the raceconscious actions at issue, the cases all erroneously conflate the aspirational justifications of modern diversity practice with the remedial justifications associated with affirmative action.146 second, when evaluating the contours of the diversity interest pursuant to the narrow tailoring element of the strict scrutiny standard, rather than tailoring that inquiry to the newly recognized diversity interest, the court applies its remedial analysis as informed by the anti-discrimination principle of equal protection. it does so without any attention to or consideration of whether the analysis is appropriate for the diversity interest in view of its unique aspirational aims. this further compounds the problem of sorting out the distinction between the aspirational diversity interest and the remedial interest pursued through affirmative action. in these cases, diversity is neither allowed to stand on its own as a principle of construction for equal protection (a compelling interest), nor is it given particularized treatment in the equal protection analysis (narrow tailoring). the result is a body of law that purports to establish an equal protection interest in diversity and define the contours of that interest, but manages only a limited recognition of the diversity interest, which it summarily proceeds to conflate with the traditional remedial equal protection interest in affirmative action. this is not an argument in semantics. the court in the diversity cases appears to be identifying motivations and analyzing equality claims that are fundamentally different than those motivations and claims addressed in the prior (and subsequent)147 equal protection cases adjudicating remedial “affirmative action” programs. yet, this attempt is not fully realized. it is thwarted by the court’s inability to accommodate the theoretical and analytical transition from programs motivated by a remedial aim to programs motivated by a diversity interest. this failing, and the court’s confused reasoning in these cases, is revealed when the cases are viewed through the lens of modern diversity practice. a. bakke the first case in which “diversity” was recognized as a possible non-remedial justification for race-conscious action under the equal protection clause was regents of the university of california v. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 145 prior to justice powell’s plurality opinion in bakke, remedying discrimination and national security were the only interests recognized by the court as sufficiently “compelling” to withstand the strict scrutiny analysis of equal protection. grutter, 539 u.s. at 351–52 (thomas, j., dissenting). for a discussion of the remedial interest, see discussion supra section iii.a. for a discussion of the national security interest, see korematsu v. united states, 323 u.s. 214 (1944). 146 tanya washington equally notes this analytic error in critiquing the grutter court’s reasoning by noting that “[t]he majority’s means-end mix up was compounded by its failure to enumerate and distinguish the character, motivations, and aspirations of the diversity rationale from those of remedial affirmative action.” washington, supra note 13, at 983. 147 for instance, adarand constructors v. pena, 515 u.s. 200 (1995), post-dates both bakke and metro broadcasting nevertheless, adarand addresses an affirmative action program with explicitly and exclusively remedial motivations that makes no claims otherwise on behalf of a diversity interest or any other non-remedial interest. 100 deliberate defense of diversity vol. 2:1 bakke.148 bakke involved a challenge by allan bakke, a white male applicant, to the special admissions program maintained for the selection of disadvantaged minority students to the university of california at davis medical school, which reserved sixteen out of every one hundred positions for minority applicants. notwithstanding the court’s finding that the special admissions program violated bakke’s right to equal protection,149 justice powell’s famous plurality opinion recognized that an admissions program could have as its purpose “obtaining the educational benefits that flow from an ethnically diverse student body.”150 both the business and functional theories of diversity were articulated by the court in bakke to support this newly recognized “diversity interest,” though not acknowledged in those terms. 151 the medical school, the petitioner in bakke, proffered a “business case” justification for diversity among medical school students, namely that diversity among the student body served to “improv[e] the delivery of health-care services to communities currently underserved.”152 this justification was not dismissed by the court for lack of persuasion, but for lack of evidence. the court declared that the “petitioner simply ha[d] not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health-care delivery to deprived citizens.”153 justice powell additionally noted, “[i]t is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this nation of many peoples.”154 this, he argued, might “bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 148 bakke, 438 u.s. at 311–12. the only other non-remedial rationale that has been acknowledged by the court as sufficiently “compelling” to justify the use of race-conscious action under the equal protection clause is national security. see korematsu, 323 u.s. at 219. 149 the plurality composed of justices powell, stevens, stewart, rehnquist and chief justice burger ruled that notwithstanding any compelling interest, the uc davis medical school’s special admissions program for disadvantaged minority students was not narrowly tailored. bakke, 438 u.s. at 315. 150 id. at 306. 151 the chronology of this recognition in 1978, when i have argued that these theories were not fully developed in modern diversity practice until the mid-1990’s, is not a contradiction. i have acknowledged that the genesis of modern diversity practice dates to the 1960’s, see supra note 8, but that it evolved substantially by the 1990’s and thereafter developed rapidly because of the increased attention, both practically and empirically, associated with its proliferation in the corporate context. precursor research regarding the practical benefits of diversity was largely confined to the social science literature. see wise, supra note 66 (citing studies as early as 1961), and carroll, supra note 76 (citing early csr research dating back to the 1950’s). 152 bakke, 438 u.s. 265, 310 (1978). the business case has similarly been asserted in a number of lower court opinions on diversity. see, e.g., cases cited supra note 95. 153 bakke, 438 u.s. at 311. however, subsequent research has amply demonstrated that culturally competent delivery of health-care substantially improves medical outcomes for minority communities. as a result, while diversity of the medical profession remains an aim of medical schools, they have supplemented their attention to diversity in student admissions with academic instruction on cultural competence for all medical students as a way of improving the delivery of health care to minority communities. see tool for assessing cultural competence training, ass’n of am. med. colls., https://www.aamc.org/initiatives/tacct/ (last visited feb. 6, 2012) (various resources on curricular instruction in cultural competence adopted by the american association of medical colleges). 154 bakke, 438 u.s. at 313 (quoting keyishian v. bd. of regents, 385 u.s. 589 (1967)). 2012 columbia journal of race and law 101 with understanding their vital service to humanity.”155 this reasoning correlates strongly with the cultural competence model of the business case for diversity.156 justice powell also articulated a functional theory in espousing the benefits of diversity in higher education. he noted it is the function of a university to “provide that atmosphere which is most conducive to speculation, experimentation and creation.”157 he went on to note that such an atmosphere “is widely believed to be promoted by a diverse student body.”158 this is precisely the functional theory of diversity that underscores modern diversity practice.159 powell reasoned that pursuit of this “robust exchange of ideas” was “compelling in the context of a university’s admissions program.”160 however, powell’s plurality decision in bakke failed to garner the support of a majority of justices in its recognition of educational diversity as a compelling interest. the remaining four justices comprising the majority on the issue of the permissibility of a race-conscious admissions programs in bakke upheld the use of race as a remedy for societal discrimination, not for the benefit of educational diversity.161 thus justice powell’s diversity rationale in bakke was part of a plurality dominated by a remedial justification for the uc davis medical school’s race-conscious admissions program. it is evident from the opinions of the four justices who joined powell in this part of the plurality decision that they conceived of this admissions program, not as a diversity initiative, but as an affirmative action program. it was justice blackmun who cast the issue explicitly in terms of the anti-subordination principle when he argued, in order to get beyond racism, we must first take account of race . . . [a]nd in order to treat some people equally, we must treat them differently. we cannot . . . let the equal protection clause perpetuate racial supremacy.162 bakke, therefore, does not represent the court’s full embrace of the diversity interest. justice powell’s diversity rationale in bakke was not joined by a single other justice. instead, justice powell’s reasoning in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 155 id. at 314. 156 see discussion supra section ii.c.1. 157 bakke, 438 u.s. 265, 312 (1978) (quoting sweezy v. new hampshire, 354 u.s. 234 (1957)). 158 id. 159 see discussion supra section ii.c.2. 160 bakke, 438 u.s. at 314. 161 justices brennan, white, marshall and blackmun joined justice powell in sanctioning race as a permissible factor in the admissions process generally, but reasoned instead that “davis’ articulated purpose of remedying the effects of past societal discrimination [was] . . . sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access of minorities to the medical school.” id. at 362. 162 id. at 407 (blackmun, j., concurring). justice brennan too cited an anti-subordination/remedial justification for his support of the race-conscious admissions program in bakke, noting “[g]overnment may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice. . . . ” id. at 325 (brennan, j., concurring). and justice marshall forcefully remarked, “[i]t must be remembered that, during most of the past 200 years, the constitution as interpreted by this court did not prohibit the most ingenious and pervasive forms of discrimination against the negro. now, when a state acts to remedy the effects of that legacy of discrimination, i cannot believe that this same constitution stands as a barrier.” id. at 387 (marshall, j., concurring). 102 deliberate defense of diversity vol. 2:1 favor of the diversity interest in bakke became emblematic of a possible expansion in equal protection doctrine that was not further realized until twelve years later, and not fully realized until twenty-five years later. b. metro broadcas t ing , inc . the court’s first opportunity to revisit justice powell’s “diversity interest” came twelve years after bakke was decided. metro broadcasting, inc.163 involved a challenge by majority-owned broadcasters to the fcc policies giving preference to disadvantaged minority enterprises in the granting and renewal of broadcast licenses.164 the majority broadcasters alleged that these fcc “minority preference polices”165 violated their right to equal protection.166 in upholding these policies against challenge, the court reasoned that safeguarding the public’s right to receive a diversity of views and information over the airwaves is therefore an integral component of the fcc’s mission . . . . ‘[i]t is the right of viewers and listeners, not the right of broadcasters, which is paramount.’ . . . just as a ‘diverse student body’ contributing to a ‘robust exchange of ideas’ is a ‘constitutionally permissible goal’ on which a race-conscious admissions program may be predicated, the diversity of views and information on the airwaves serves important first amendment values.”167 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 163 metro broadcasting inc., 497 u.s. 547 (1990), overruled by adarand, 515 u.s. 200 (1995) (holding all racial classifications, including those imposed by congress or considered “benign” are subject to strict, rather than intermediate scrutiny). 164 metro broadcasting inc., 497 u.s. at 547. specifically, the two programs at issue in metro broadcasting were (a) a program awarding an enhancement for minority ownership in comparative proceedings for new broadcast licenses, and (b) the minority “distress sale” program, which permitted a limited category of existing radio and television broadcast stations to be transferred only to minority-controlled firms. id. at 552. the fact that these policies/programs were continually referred to throughout the opinion as “preferences” signifies them as more akin to affirmative action than to diversity. although the distinctions between modern diversity practice and affirmative action highlighted here are theoretical, there are also many practical distinctions between the two. perhaps one of the most significant practical distinctions is that affirmative action programs often operate as a naked racial preference (whether or not they are or were intended as such). see mark nadel, “retargeting affirmative action: a program to serve those most harmed by past racism and avoid intractable problems triggered by per se racial preferences,” 80 st. john’s l. rev. 323 (2006). whereas modern diversity practice is race conscious, but does not operate as a race preference. this distinction could explain the court’s clouded treatment of the diversity interest. 165 metro broadcasting, inc., 497 u.s. at 552. 166 the fcc policies, promulgated as they were pursuant to the authority of congress, were challenged under the fifth amendment, rather than under the fourteenth amendment. this difference was critical to the ruling in metro broadcasting, because it resulted in the court applying a purportedly more deferential intermediate scrutiny standard of review, rather than the traditional strict scrutiny standard applicable to race-conscious action by the states under the fourteenth amendment. notwithstanding the critical difference this might have made in deciding the case, this distinction is immaterial for purposes of this analysis. as discussed infra notes 172–181, the court’s analysis here is indistinguishable from its analysis under strict scrutiny. 167 metro broadcasting, 497 u.s. at 567–68 (quoting red lion broad. co. v. fcc, 395 u.s. 367, 390 (1969) and regents of the univ. of calif. v. bakke, 438 u.s. 265, 265 (1978)). 2012 columbia journal of race and law 103 a majority of justices in metro broadcasting, inc. adopted this “diversity interest,” making it the rule of law in that case.168 the court even clearly articulated the functional theory of diversity to support its rationale. in upholding the fcc minority preference policies, the court credited the fcc rationale for the policy that, “[a]dequate representation of minority viewpoints in programming serves not only the needs and interests of the minority community but also enriches and educates the non-minority audience.”169 the court expressly analogized the benefit of broadcast diversity in metro broadcasting, inc. to the student body diversity defended by justice powell in bakke, noting “[a] broadcasting industry with representative minority participation will produce more variation and diversity than will one whose ownership is drawn from a single racially and ethnically homogenous group . . . akin to justice powell’s conclusion in bakke that greater admission of minorities would contribute, on average, ‘to the robust exchange of ideas.’”170 in a closely related argument, the court cited the cultural competence model of the business case to further justify diversity in broadcast programming, stating, [m]inority ownership does appear to have specific impact on the presentation of minority images in local news, inasmuch as minority-owned stations tend to devote more news time to topics of minority interest and to avoid racial and ethnic stereotypes in portraying minorities. in addition, studies show that a minority owner is more likely to employ minorities in managerial and other important roles where they can have an impact on station policies.171 yet the court failed to rely exclusively on either of these diversity justifications to sustain the challenged policies. instead, the court grounded its “diversity interest” in a remedial perspective, noting that the policies at issue could “best be understood by reference to the history of federal efforts to promote minority participation in the broadcasting industry.”172 the court recited at length the historic deficits minorities had suffered in their participation in the broadcast industry despite their growing representation among the population, including lack of experience and inadequate access to capital and information.173 despite acknowledging these remedial justifications for the policies, the court reasoned that “the effects of past inequities stemming from racial and ethnic discrimination” were not the primary justifications for the policies.174 rather, it purported to accept that the promotion of diversity in programming was the primary justification and concluded that “such diversity is an important governmental objective that can serve as a constitutional basis for the preference policies.”175 this assertion is belied by the court’s subsequent analysis of this “diversity interest.” !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 168 applying an intermediate level of scrutiny, the majority accepts diversity as an important governmental interest. metro broadcasting, 497 u.s. 547. this holding was later overruled by adarand, 515 u.s. 200, which held that all racial classifications are subject to the strict scrutiny standard. 169 metro broadcasting, inc., 497 u.s. 547, 556 (1990) (internal citations omitted). 170 id. at 579. 171 id. at 581–82 (internal citations omitted). 172 id. at 552–53. 173 id. at 593–94. 174 id. 175 metro broadcasting, inc., 497 u.s. 547, 566 (1990). 104 deliberate defense of diversity vol. 2:1 although the court professed application of an intermediate level of scrutiny in metro broadcasting, inc., it is virtually indistinguishable in substance from the strict scrutiny analysis applied to the remedial interests asserted in the court’s prior or subsequent affirmative action cases. the essence of the strict scrutiny analysis developed under the remedial anti-discrimination principle is the attention to “narrow tailoring” through consideration of: (1) race-neutral alternatives, (2) undue burden on the interests of non-minorities, and (3) limited duration of race-conscious practices.176 each of these remedial considerations is analyzed by the court in metro broadcasting, inc. notwithstanding the fact that the court was purporting to review actions whose primary purposes were not remedial but stemmed from a new and different “diversity interest,” supported by a functional and/or business justification. first, the court looked at the available race-neutral alternatives to the fcc minority preference policies in metro broadcasting, inc. and found that none was a suitable substitute for the race-conscious policies promulgated, which had been “adopted . . . only after long study and painstaking consideration of all available alternatives.”177 second, the court considered the burden of the fcc minority preference policies on non-minority broadcasters. here, the court’s reasoning in justifying this purported diversity interest is indistinguishable from its analysis of the remedial interest in affirmative action. expressly analogizing the fcc minority preference policies to the “nation’s dedication to eradicating racial discrimination,” the court reasoned that “innocent persons may be called upon to bear some of the burden of the remedy.”178 betraying the diversity interest further, the court went on to reason, “when effectuating a limited and properly tailored remedy to cure the effects of prior discrimination¸ such a sharing of the burden by innocent parties is not impermissible.”179 lastly, in addressing the duration of the fcc minority preference policies, the court acknowledged: congress and the commission have adopted a policy of minority ownership not as an end in itself, but rather as a means of achieving greater programming diversity. such a goal carries its own natural limit, for there will be no need for further minority preferences once sufficient diversity has been achieved.180 notwithstanding justice stevens’ concurring statement in metro broadcasting, inc. that he joined the court in endorsing diversity as a “future benefit, rather than [a] remedial justification,”181 this future benefit is belied by the court’s explicit application of a remedial narrow tailoring standard to that aspirational interest. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 176 see, e.g., united states v. paradise, 480 u.s. 149, 171 (1987) (identify narrow tailoring analysis as comprised of consideration of “. . . efficacy of alternative remedies, flexibility and duration of relief . . . and impact of the relief on the rights of third parties.”). 177 metro broadcasting, 497 u.s. at 548. 178 id. at 596 (quoting wygant v. jackson bd. of educ., 476 u.s. 267, 280–81 (1986)). 179 id. at 597. 180 id. at 596. 181 this conflict was not lost on justice kennedy, who argued in his dissent that “efforts to compensate for racial inequalities . . . are not premises that the court even appears willing to address in its analysis. until the court is candid . . . and open about defending a theory that explains why the cost of [the minority preference policies] is worth bearing and why it can consist with the constitution, no basis can be shown for today’s casual abandonment of strict scrutiny.” id. at 636–37 (kennedy, j., dissenting). 2012 columbia journal of race and law 105 c. grutt e r the final case in the court’s triumvirate of “diversity cases” is grutter v. bollinger.182 grutter was an essential reprisal of the issue raised in bakke, wherein the race-conscious admissions policy of the university of michigan law school was challenged under the equal protection clause by a white applicant denied admission.183 relying on justice powell’s plurality opinion in bakke, the university of michigan defended its admissions policy exclusively on the ground that it was necessary to attain the educational benefits of diversity.184 twenty-five years after the fractured ruling in bakke, a majority of the court, led by justice o’connor, “endorse[d] justice powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.”185 this singular justification for the race-conscious admissions policy in grutter offers the court an opportunity to depart from the “mixed motive”186 rationale that complicated and undermined the reasoning in both bakke and metro broadcasting, inc. yet the opinion in grutter is equally fraught with “mixed motive” rhetoric that undermines the court’s attempt to fashion a pure diversity interest in its equal protection jurisprudence. as with the other cases, the court begins with some acknowledgement and analysis of the various theories of modern diversity practice. importantly, in addition to justifying the diversity interest by reference to the business case and functional theories, grutter was the first case in which the court justified the diversity interest by reference to a pluralist theory.187 building on the precedent of bakke, justice o’connor began in grutter with the functional theory to support the asserted interest in student body diversity. citing to the empirical evidence generated in the intervening years since bakke, the court noted that “diversity . . . has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.”188 the court further explained that the functional benefit obtained by student body diversity is that “classroom !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 182 grutter v. bollinger, 539 u.s. 306 (2003). diversity has been raised in subsequent cases, but has not generated any significant new analysis by the court since grutter. see ricci v. destefano, 557 u.s. 557 (2009); parents involved, 551 u.s. 701 (2007). 183 in a companion case, gratz v. bollinger, 539 u.s. 244 (2003), a white applicant also challenged the raceconscious admissions policy of the university of michigan’s undergraduate program. 184 grutter, 539 u.s. at 320 (noting “respondents assert only one justification for their use of race in the admissions process: obtaining the educational benefits that flow from a diverse student body” (internal quotations omitted)). owing to the intervening equal protection cases rejecting the interests in remedying societal discrimination (richmond v. croson, 488 u.s. 467 (1989)) and the “role model” theory to support race-conscious policies (wygant v. jackson bd. of educ., 476 u.s. 265 (1986)), the university of michigan offered neither of these interests, which were offered in bakke, to support their race-conscious admissions policy. 185 grutter, 539 u.s. at 318. 186 this term was developed in the title vii context. see price waterhouse v. hopkins, 490 u.s. 228, 241 (1989) (acknowledging that title vii condemns acts motivated by a mixture of legitimate and illegitimate considerations, not merely those motivated solely by illegitimate considerations). 187 it is not surprising that it was not until grutter that the pluralist justification was raised in support of the diversity interest. as noted above, the corporate social responsibility/pluralism argument was also the last to be developed in support of modern diversity practice and is a relatively recent addition. see discussion supra section ii.c.3. 188 grutter, 539 u.s. 306, 308 (2003). 106 deliberate defense of diversity vol. 2:1 discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.”189 the business case, also addressed in each of the previous diversity cases, was a paramount justification for the diversity interest in grutter. in one of the most oft-quoted passages from her majority opinion, justice o’connor noted that “[the] benefits [of diversity] are not theoretical, but real, as major american businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”190 reflecting a more refined understanding of the “business case,” the court even accepted a cross-cultural competence justification for the student body diversity interest asserted in grutter, which had been rejected in bakke for lack of evidence.191 specifically, the court in grutter reasoned that the university of michigan law school’s race-conscious admissions policy “promotes ‘cross racial understanding,’ helps to break down racial stereotypes, and ‘enables [students] to better understand persons of different races.’”192 but the major development between bakke and grutter was the emergence of the pluralist theory in support of the diversity interest. justice o’connor offered a pluralist theory in defense of the raceconscious admissions policy in grutter by forcefully arguing for the diversity interest as follows: [t]he diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity . . . ensuring that public institutions are open and available to all segments of american society, including people of all races and ethnicities, represents a paramount government objective. . . . effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized.193 justice o’connor went on to reinforce the point that inclusive participation was not merely an educational obligation but a civic one as well, stating: in order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. all members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.194 grutter went further than either of the previous “diversity cases” in articulating and analyzing the diversity interest from a non-remedial perspective and establishing it as a distinct justification for raceconscious action under the equal protection clause. in this regard, grutter reflects the progression in the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 189 id. at 323 (internal citations omitted). 190 id.; see generally brief for general motors, supra note 50, and brief for 65 leading american businesses in support of respondents, grutter v. bollinger, 539 u.s. 306 (2003) (nos. 02-241 and 02-516), 2003 wl 399056. 191 see discussion supra section iv.a. 192 grutter, 539 u.s. at 323. 193 id. at 324–25 (internal citations omitted). 194 grutter, 539 u.s. 306, 324–25 (2003). 2012 columbia journal of race and law 107 court’s equal protection analysis of the diversity interest and lays the foundation for its further development. nevertheless, the grutter court was not immune from reflexive reliance on the traditional remedial analysis that characterized the bakke and metro broadcasting, inc. decisions. succumbing to this analytic trap, the court again applied the narrow tailoring standard developed in the context of remedial affirmative action cases to this proffered diversity interest. this inattention to the distinction between the diversity interest recognized by the court and the narrow tailoring analysis applied to that interest is particularly puzzling in view of the court’s express acknowledgment that “context matters when reviewing race-based governmental action under the equal protection clause.”195 justice o’connor went on at length about this nuanced approach, noting at one point that “strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced . . . for the use of race in that particular context,”196 and later observing that “the narrow tailoring inquiry . . . must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education.”197 notwithstanding this, o’connor went on to apply the strict scrutiny standard of narrow tailoring developed to fit the interest in remedying past discrimination in the affirmative action context, rather than constructing a standard of narrow tailoring to fit the interest in student body diversity in public higher education. signaling this shift in the court’s analysis from an aspirational interest to a remedial one, justice o’connor noted in grutter that while the university of michigan’s admissions policy “[did] not restrict the types of diversity contributions eligible for ‘substantial weight’ in the admissions process,” the policy did “reaffirm the law school’s longstanding commitment to ‘one particular type of diversity,’ that is, ‘racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against . . . who without this commitment might not be represented in our student body in meaningful numbers.’”198 thereby classifying the admissions program as a system that included “racial preferenc[es],” justice o’connor applied the standard three-part test for narrow tailoring utilized in the remedial context. justice o’connor evaluated the university of michigan law school’s admissions policy for its consideration of race-neutral alternatives, undue burden on non-minorities, and limited duration.199 acknowledging the law school’s “good faith” consideration of race-neutral alternatives,200 individualized consideration of applicants notwithstanding the consideration of race,201 and concession !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 195 id. at 327. 196 id. 197 id. at 333–34. 198 id. at 308 (emphasis added). 199 id. at 332–35. justice o’connor did borrow some elements from justice powell’s narrow tailoring standard in bakke, see discussion infra p. 45. she evaluated both whether the program operated as a rigid quota or as a more flexible, individualized standard and whether it considered factors beyond race in achieving diversity. id. at 326–30. however, she quickly abandoned that line of reasoning and reflexively turned to the remedial equal protection analysis. id. at 331–35. 200 grutter, 539 u.s. 306, 339 (2003). 201 id. at 334, 341. 108 deliberate defense of diversity vol. 2:1 of a durational limit,202 the court upheld the law school’s race-conscious admissions policy, but not without distorting the nature of the diversity interest from an aspirational end to a remedial one. reviewing these diversity cases through the lens of modern diversity practice reveals that the court has not gone as far as it professes in acknowledging a compelling interest in “diversity,” at least not as an interest that is entirely independent of the remedial interest in redressing past discrimination. nor has the court clearly defined the diversity interest it has recognized in relation to the end it seeks to achieve. in each of the three diversity cases, the court has variously recognized the business case (particularly cultural competence), functional, and pluralist/corporate social responsibility theories of diversity as plausibly animating the “diversity interest,” but has failed to explicitly adopt any of these theories as the legitimately compelling end that diversity seeks to achieve.203 moreover, the court has compounded this failure to independently recognize or explicitly define a compelling interest in diversity by evaluating the diversity interest according to the narrow tailoring standard constructed for remedial racial classifications. in view of the function of the narrow tailoring standard as a test of fit between means and end,204 the use of a remedial fit test for the aspirational diversity interest is inexplicable. v. uncovering a new strict scrutiny standard the court’s application of the remedial narrow tailoring analysis in the metro broadcasting, inc. and grutter opinions betrays the very purpose of the strict scrutiny standard. the remedial test of narrow tailoring, developed pursuant to the anti-discrimination principle of equal protection, focuses the narrow tailoring inquiry on limiting the scope of the remedy. this focus is misplaced. when the end sought is aspirational, the focus of narrow tailoring is more appropriately on ensuring the efficacy of the means chosen. the ill fit between the court’s remedial analysis and the aspirational diversity interest is evident in the analytic contradictions and distortions of both metro broadcasting, inc. and grutter. a. the [mis]fit between the “diversity interest” & remedial equal protection analysis 1. race neutral alternatives in evaluating the preference policies for disadvantaged minority enterprises in metro broadcasting, inc., the court looked to whether the fcc had considered race-neutral alternatives before approving the race-conscious policy in support of the diversity interest.205 not only did the court find that the fcc had considered race-neutral alternatives, but it also found that the fcc “established minority ownership preferences only after long experience demonstrated that race-neutral means could not produce adequate broadcasting diversity.”206 this was not the “good faith” consideration of race-neutral alternatives the court accepted in grutter.207 the fcc had engaged in numerous efforts over many years to achieve !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 202 id. at 342. 203 justice thomas emphasized this failure in his grutter dissent, referring to the “diversity interest” recognized by the majority as “more a fashionable catchphrase than . . . a useful term,” noting the ambiguity of the court’s use of the phrase by observing that the court’s rationale “implies that both ‘diversity’ and ‘educational benefits’ are components of the . . . compelling state interest,” and finally stating that “‘diversity,’ whatever it means, is . . . not an end of itself.” id. at 354–55 (thomas, j., dissenting). 204 see fiss, groups, supra note 16. 205 metro broadcasting, inc., 497 u.s. 547, 584 (1990). 206 id. at 589 (emphasis added). 207 grutter, 539 u.s. 306, 339 (2003). 2012 columbia journal of race and law 109 programming diversity by race-neutral means and found them all ineffective208 to “[s]afeguar[d] the public’s right to receive a diversity of views and information over the airwaves.”209 the court thus acknowledged that “[o]nly in this [race-conscious] way would ‘the american public [gain] access to a wider diversity of information sources.’”210 the court’s analysis of the race-neutral alternatives in grutter similarly reveals that race-neutral alternatives can never prove effective in achieving diversity ends. in assessing the sufficiency of race-neutral alternatives in grutter, the court criticized the raceneutral “lottery system” and “decreasing the emphasis . . . on undergraduate gpa and lsat scores” as ineffective to achieving the end of diversity, noting that the former would require a “dramatic sacrifice of diversity” and that the latter would sacrifice “academic quality.”211 in particular, the lottery system was criticized for its inability to allow the university to “make th[e] kind of nuanced judgment . . . necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university.”212 the court’s acknowledgement that race-neutral means could not be effective to achieve the particular diversity ends sought in either case reveals the inadequacy of this inquiry to appropriately define the contours of race-conscious actions taken in pursuit of a diversity end. thus, consideration of this factor is misplaced in the narrow tailoring analysis of the diversity interest. 2. burden on non-minorities with regard to the burden on non-minorities—the second element of the remedial narrow tailoring test—the court’s analysis in grutter reveals itself to be inadequate too, as a measure of the fit between race-conscious means and a diversity end. in explaining this limitation on the scope of the raceconscious means, the court in grutter described the purpose as ensuring that the remedy does not “unduly burden individuals who are not members of the favored racial and ethnic groups.”213 it stands to reason that if there are no favored racial and ethnic groups, this inquiry is meaningless in evaluating the race-conscious actions. yet this is the precise acknowledgement made by the court when it recognized that the law school’s race-conscious admissions policy “considers ‘all pertinent elements of diversity,’ [and] it can (and does) select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants.”214 the court acknowledged, “what is more, the [law school] actually gives substantial weight to diversity factors besides race . . . [and] frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants . . . !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 208 metro broadcasting, 497 u.s. at 584–89. the fcc’s efforts to enhance broadcast diversity by race-neutral means spanned the period of 1946–1978. id. some of its efforts included instructing broadcast licensees to “discover and fulfill the tastes, needs, and desires of his community or service area,” id. at 585, “promulgat[ing] equal employment opportunity regulations,” id. at 586, establishing formal “ascertainment” rules requiring broadcast licensees to respond to the needs and interest of “‘minority and ethnic groups’” within the community of license, id. at 587, and even devising a “community leader checklist” with whom licensees could engage to meet the ascertainment requirements, id. at 587–88. all of these race-neutral efforts failed to produce sufficient programming diversity. 209 id. at 567. 210 id. at 591 n.43 (quoting h.r. rep. no. 97-765, at 45) (second alteration in original) (emphasis added). 211 grutter, 539 u.s. 306, 340 (2003). 212 id. 213 id. at 341 (quoting metro broadcasting, inc., 497 u.s. 547, 630 (1990) (o’connor, j., dissenting)(emphasis added)). 214 id. 110 deliberate defense of diversity vol. 2:1 who are rejected.”215 it further characterized the law school’s policy as an “individualized inquiry into the possible diversity contributions of all applicants” that does not “mak[e] an applicant’s race or ethnicity the defining feature of his or her application.”216 based on these acknowledgements, it is inaccurate to characterize the admissions policy as one that favors any racial or ethnic group and the inquiry into the burden that such a policy would place on non-favored groups is entirely misplaced here. 3. limited duration finally, the remedial narrow tailoring analysis considers the durational limits of race-conscious measures. the rationale here is not only that “[e]nshrining a permanent justification for racial preferences would offend [the] fundamental equal protection principle,”217 but also that “such a goal carries its own natural limit.”218 in metro broadcasting, inc., the court reasoned that “there will be no need for further minority preferences once sufficient diversity has been achieved.”219 in grutter, the court reasoned that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” first, this reasoning is inconsistent with the court’s acknowledgement with regard to the first prong of the narrow tailoring test that race-neutral means simply could not be effective in achieving the diversity interest recognized in both cases as compelling.220 moreover, unlike a remedial goal, which once achieved cannot justify continued use of race-conscious measures,221 the diversity interest may in fact entail both achieving and maintaining diversity. presumably, the interest in “[s]afeguarding the public’s right to receive a diversity of views and information over the airwaves [that is] an integral component of the fcc’s mission,”222 recognized by the court in metro broadcasting, is an interest to be both achieved and maintained. similarly, a university’s interest in attaining “the educational benefits that flow from a diverse student body,”223 or developing “the skills needed in today’s increasingly global marketplace,”224 or “cultivat[ing] a set of leaders with legitimacy in the eyes of the citizenry”225 are interests to be both achieved and maintained. it is both logical and reasonable to presume that remedies entail finite goals. it is less logical and not altogether clear that the aspirational goals of diversity are as finite or circumscribed. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 215 id. at 338 (emphasis added). 216 id. at 337, 341. 217 id. at 342. 218 metro broadcasting, inc., 497 u.s. 547, 596 (1990). 219 id. 220 see discussion supra note 163. the diversity interest was more specifically recognized in metro broadcasting as “at the very least, an important governmental objective” in view of the intermediate scrutiny applied in that case. id. at 567. 221 see, e.g., parents involved, 551 u.s. 701, 721 (2007). 222 metro broadcasting, 497 u.s. at 567. 223 grutter, 539 u.s. 306, 343 (2003). 224 id. at 330. 225 id. at 332. 2012 columbia journal of race and law 111 diversity does not purport to be remedial in its aims, nor do the justifications for diversity recognized by the court in these cases presume such a remedial purpose. to the contrary, the court’s reasoning in these cases seems to acknowledge the aspirational aims of the diversity interest and accept them as legitimately compelling to withstand constitutional challenge. nevertheless, in the absence of a clearly articulated diversity interest and an analytical framework capable of accommodating a nonremedial aim, the court simply is ill-equipped to analyze the diversity interest on its own merits. rather than recognizing that the diversity interest aspires to a business case, functional or pluralist end, and fashioning an appropriate analytical construct to assess these interests, the court relies on the familiar remedial principles and constructs that have dominated the equal protection analysis. here too, modern diversity practice offers meaningful insight and analogy for our equal protection jurisprudence. 226 b. the right fit: adopting the powell test of strict scrutiny the court should have acknowledged that the diversity interest recognized in bakke, metro broadcasting, and grutter was not merely a different instrumental strategy for achieving the same remedial end recognized in prior equal protection cases, but that some different compelling interest, wholly separate and distinct from the remedial interest, was being expressed.227 instead, the court merged these novel and unique theories of diversity with old remedial justifications causing the rationale for the diversity interest to hinge not merely on the business case, or the functional or pluralist theories, but also to rest on remedial considerations such as remedying societal discrimination,228 curing the historic deficit of minorities in broadcasting,229 and the admission of students from historically underrepresented groups.230 this “mixed motive” analysis masks the independent constitutional significance of the diversity interest by subordinating its aspirational aims. if the court had instead acknowledged that the diversity interest is not dependent on the remedial interest for its constitutional legitimacy, it might also have realized the need to develop a corresponding analytical construct to evaluate the appropriate contours of the diversity interest. in particular, the remedial narrow tailoring analysis constructed to evaluate the fit between race-conscious means and remedial ends is unsuited to the task of evaluating the fit between race-conscious means and diversity end. it is simply not suited to the context. it does not operate effectively to “examin[e] the importance and the sincerity of the reasons advanced . . . for the use of race in [this] particular context.”231 instead, justice powell’s opinion in bakke offers a useful model of the strict scrutiny analysis well-suited to the interest in diversity. it is notable that bakke was decided prior to the development of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 226 if, as suggested by v.f. nourse and sarah a. maguire, the tragedies of history “present learning opportunities if they suggest a different way of addressing old problems,” v.f. nourse & sarah a. maguire, the lost history of governance and equal protection, 58 duke l.j. 955, 957 (2009), then this failure represents an opportunity to learn how equal protection jurisprudence should operate to effectively accommodate the diversity interest that we should not miss. 227 see kenneth l. karst, the revival of foreward-looking affirmative action, 104 colum. l. rev. 60, 69 (2004). although karst does conflate the term diversity with affirmative action, he does astutely acknowledge that “[t]he goal articulated in grutter . . . does not look back to . . . offer a remedy but [r]ather, . . . looks to our national future.” id. 228 bakke, 438 u.s. 265, 362 (1978). 229 metro broadcasting, inc., 497 u.s. 547, 593–94 (1990). 230 grutter, 539 u.s. 306, 333 (2003). 231 id. at 327. 112 deliberate defense of diversity vol. 2:1 the multi-factor narrow tailoring test announced in united states v. paradise,232 and subsequently applied in metro broadcasting and grutter, which would preclude justice powell’s reflexive reliance on that standard. the approach justice powell takes in considering whether the uc davis admissions policy is narrowly tailored to serve the unique interest in student body diversity represents a useful departure from the narrow tailoring analysis constructed for remedial interests, and returning to that standard in future diversity cases can help provide an analytical construct better suited to the diversity interest. justice powell’s narrow tailoring standard also has three essential elements: (1) whether the means chosen is the only effective means of achieving diversity;233 (2) whether the interest in diversity is broader than an interest in mere racial and ethnic origin;234 and (3) whether consideration is individualized, notwithstanding the weight accorded to diversity.235 this test of narrow tailoring, unlike the remedial narrow tailoring test, is actually tailored to the interest asserted. it represents a nuanced approach to the equal protection analysis when the interest is other than a remedial interest. it properly focuses the inquiry on the efficacy of the method chosen to achieve the aspirational goal(s) of diversity, rather than on the scope of the remedy necessary to cure the harm. the conclusions reached by the court in metro broadcasting and grutter, upholding the use of raceconscious measures in support of diversity, were right notwithstanding application of the wrong narrow tailoring standard. the concern is not the outcome in these cases, but the potential effect of their compromised reasoning on the development of our equal protection jurisprudence. these cases failed to recognize a palpable shift in our equal protection jurisprudence that occurred with the introduction of the “diversity interest.” this shift moved our equal protection jurisprudence from an exclusive focus on the past to a more modern construct that points the way toward the future. there are several ways that adopting the powell narrow tailoring standard would aid in the development of the diversity interest and correct the flawed reasoning of both grutter and metro broadcasting., notwithstanding the right results in those cases. c. applying the powell test to metro broadcas t ing and grutt e r 1. replacing race-neutral with “broader than race” replacing the inquiry into race-neutral alternatives with an inquiry of whether the diversity pursued is “broader than race” does not change the outcome in either case, but it does reconcile the diversity interest with the narrow tailoring standard. in both metro broadcasting and grutter, this inquiry was in conflict with the court’s acknowledgement that the diversity interests at issue could not be achieved by race-neutral means. the proper inquiry, therefore, is not whether race-conscious means are necessary (they clearly are), but whether the interest pursued is in more than racial diversity. accepting, for instance, the functional theory of diversity proffered in both metro broadcasting and grutter, modern diversity practice demonstrates that the benefit of functional diversity extends beyond racial difference.236 to test the fit between this end and the means chosen to achieve this end, therefore, requires that the means chosen reveal an interest in more than racial diversity. both the fcc in metro broadcasting and the university of michigan law school in grutter demonstrated that racial diversity was !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 232 paradise, 480 u.s. 149, 171 (1987). 233 bakke, 438 u.s. at 315. 234 id. 235 id. at 318. 236 see discussion supra section ii.c.2. 2012 columbia journal of race and law 113 but one facet of enhancing broadcast diversity237 and obtaining the educational benefits of diversity, respectively.238 whereas the focus on race-neutral alternatives reveals little about the legitimacy of raceconscious actions taken in pursuit of diversity ends (except that they are always necessary), an inquiry of whether the diversity pursued is broader than race reveals the legitimacy of the means chosen in relation to a functional end.239 2. shifting focus from burden on some to individualized consideration for all refocusing the inquiry from the burden on non-minorities to individualized consideration acknowledges the need for protection of individual rights without casting the issue as one of unequal treatment in the context of diversity.240 although “innocent persons may be called upon to bear some of the burden of . . . remed[ial]”241 racial classifications, there are not similarly burdened classes of persons when diversity is the aim. this was aptly demonstrated in grutter when the court acknowledged that not only are “nonminority applicants who have greater potential to enhance student body diversity [selected] over underrepresented minority applicants,” but also that “frequently . . . nonminority applicants [are accepted] with grades and test scores lower than underrepresented minority applicants . . . who are rejected.”242 the net result of this policy is that sometimes a minority applicant is benefitted vis-à-vis some burdened nonminority applicant or, conversely sometimes a nonminority applicant is benefitted vis-à-vis some burdened minority applicant. it does not, however, result in categorical benefit to minority applicants and categorical burden to nonminority applicants.243 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 237 for instance, the fcc ascertainment rules in support of broadcast diversity also required that licensees canvass the members of the listening public who could receive the station’s signal “to ascertain the . . . interests of . . . [the] community” and “to devote a ‘significant proportion’ of a station’s programming to community concerns.” metro broadcasting, inc., 497 u.s. 547, 586 (1990). 238 the court noted that “‘[t]here are many possible bases for diversity admissions,’” and that the university “actually gives substantial weight to diversity factors besides race.” grutter, 539 u.s. 306, 338 (2003). 239 for example, applying this test to the race-conscious school assignment plan in parents involved, which classified students crudely as either “white or nonwhite” or “black or ‘other,’” reveals that the narrow diversity targeted belies any purported interest in achieving the educational benefits of functional diversity. parents involved, 551 u.s. 701, 710 (2007). 240 the claim here is not the same as that made by fiss. see fiss, another equality, supra note 90 (arguing that the anti-subordination principle of equal protection acknowledges the harm of remedial racial classifications to nonbeneficiaries, but does not endow this harm with constitutional status). rather, the claim here is that there is no categorical group harm to non-minorities when the interest is diversity, rather than remedial. 241 metro broadcasting, inc., 497 u.s. at 596 (quoting wygant v. jackson bd. of educ., 476 u.s. 267, 281 (1986)). 242 grutter, 539 u.s. at 338, 341. 243 justice powell in bakke described such a constitutional use of race as follows: the file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an italian-american if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. . . . this kind of program treats each applicant as an individual in the admissions process. the applicant who loses out on the last available seat to another candidate receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. it would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. his qualifications would have been weighed 114 deliberate defense of diversity vol. 2:1 reference to modern diversity practice is again instructive. the cultural competence theory of the business case posits that the diversity of the nation is expanding rapidly, as is globalization.244 in this context, notions of “minority” and “nonminority” are fluid and context specific.245 in contexts where racial and ethnic “minorities” represent a numeric “majority,” for instance, diversity upends the presumed balance of burden and benefit. insofar as diversity is concerned, therefore, the inquiry into burdens and benefits reveals only the fact that there is some distribution of each on all applicants in varying combinations across a multitude of contexts. by contrast, a focus on individualized consideration assures that individual rights are preserved, which is the concern of equal protection. 3. reconciling limited duration and aspirational ends finally, the notion of limited duration—albeit a hallmark of the restraint on the permissible use of remedial racial classifications under our equal protection analysis—must also be defined in context. limited duration in the context of a remedial purpose means when the harm has been redressed. limited duration in the context of the diversity interest means when race-conscious means are no longer the most effective (or necessary) means of achieving the ends sought. the twenty-five year duration identified in grutter as the time when “minority applicants with high grades and test scores [would have] increased” bears no rational relationship to the educational benefits of functional diversity. as acknowledged by the court in grutter, there are minorities with high grades and test scores who are both admitted and rejected (sometimes in favor of non-minorities with lower grades and test scores who would better contribute to educational diversity). the fact of greater or fewer minorities with high academic credentials is not indicative of any individual applicant’s ability to contribute to diversity vis-àvis another applicant. nor is a quantitative increase in the number of well-credentialed applicants, minority or non-minority, relevant to the “individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university.”246 it may not be the case that race-conscious means are necessary to pursue diversity ends indefinitely. but the measure of necessity is neither an arbitrary durational limit nor a function of progress in achieving redress for past discrimination. rather, the use of race-conscious means to pursue diversity ends should be limited by their necessity in achieving the ends sought. vi. conclusion modern diversity practice can serve as a useful guide for understanding and articulating the diversity interest as we develop our modern equal protection jurisprudence. first, the diversity interest must be defined in relation to its own unique aspirational ends, not in relation to the remedial goals of affirmative action. second, a new analytical construct must be developed to accommodate these unique aspirational ends and evaluate the fit between means and ends in a way that is suited to the context of diversity. modern diversity practice has revolutionized the private sector by leveraging the diversity of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! fairly and competitively, and he would have no basis to complain of unequal treatment under the fourteenth amendment. bakke, 438 u.s. 265, 317–18 (1978). 244 see discussion supra section ii.c.1. 245 justice powell himself noted this reality in bakke when he observed that “the united states ha[s] become a nation of minorities” and that therefore “[t]he concepts of ‘majority’ and ‘minority’ necessarily reflect temporary arrangements and political judgments. bakke, 438 u.s. at 292–95. 246 grutter, 539 u.s. at 340. 2012 columbia journal of race and law 115 our nation. viewing the diversity interest through the lens of modern diversity practice can help evolve our equal protection jurisprudence to acknowledge the realities of diversity, affirm its unique significance to our modern construct of equal protection, and develop standards that are appropriately suited to its aspirational ends. microsoft word montoya article final.docx defying congressional intent: justices miller and bradley alter the course of reconstruction john montoya* following the end of the civil war, the 39th congress met to consider legislative proposals that would grant to blacks the same civil rights and statutory guarantees then afforded to whites. to that end, the 39th congress passed two constitutional amendments, several civil rights bills, and a series of enforcement acts. in the process, congress made clear in its debates that the federal government would have an expanded role in the domain of civil rights protection and enforcement of constitutional mandates. the united states supreme court, in considering the federal government’s authority, failed to acknowledge the intent of congress in this respect. this article argues that the failure of the court to recognize and apply this intent significantly impeded the development of civil rights for blacks and encouraged a disregard for equal enforcement of constitutional guarantees that continues, in part, to the present. i. introduction ................................................................ 83 ii. what the framers intended ....................................... 86 a. the civil rights act of 1866 ....................................... 87 b. the fourteenth amendment ........................................ 89 c. “deprive” and “deny”: the enforcement acts of 1870 and 1871 ...................................................................... 95 d. the clear message from congress .............................. 99 iii. justices miller’s and bradley’s consequential misunderstanding of congressional intent ...... 101 a. slaughter-house regulation ....................................... 102 b. the colfax massacre ................................................. 109 * j.d., university of seattle school of law, cum laude, 2003. the author, on behalf of plaintiffs, litigated a range of employment law cases, including employment discrimination cases, in both state and federal court. the author also served for several years as the deputy director of the seattle district office of the equal employment opportunity commission. no. 10:2] defying congressional intent 83 c. assessing the fallout from cruikshank ....................... 120 d. “running the slavery argument into the ground” ..... 121 iv. the fuller court’s further erosion of congressional intent ............................................ 126 a. riding in comfort ..................................................... 127 b. further setback ......................................................... 130 v. conclusion.................................................................. 133 vi. appendix .................................................................. 134 i. introduction the civil war was over and, as of december 1865, the thirteenth amendment was enshrined in the constitution.1 little changed, however, in the aftermath of the conflict. shortly after the war, the united states congress received reports of widespread violence against recently freed slaves.2 restrictive laws called “black codes” required black men to sign labor contracts or face prosecution and limited the ability of former slaves to own firearms, to travel from one county to another without a pass, to serve as a minister, to testify in court, and to serve on juries.3 congress responded to these reports and conditions by enacting the civil rights act of 1866, the fourteenth and fifteenth amendments to the constitution, and a series of enforcement acts—all of which were designed to bring a measure of protection and equal rights to the freedmen4. 1 u.s. const. amend. xiii; infra appendix. 2 cong. globe, 39th cong., 1st sess. 39, 41 (1866) (statement of senator henry wilson) [hereinafter 39th cong. 1st sess.]. 3 id. at 474; eric foner, the second founding 47–48 (2019). 4 u.s. const. amend. xiv; u.s. const. amend. xv; the civil rights act of 1866, ch. 31, § 1, 14 stat. 27 (1866), infra appendix, (contains the relevant text of the civil rights act of 1866, the fourteenth and fifteenth amendments as well as the identity and relevant text of the enforcement acts passed by congress during the period in question.) 84 columbia journal of race and law [vol. 10:2 with the passage of these amendments and acts, congress provided the united states supreme court with a singular opportunity to shape post-civil war constitutional law. the language congress adopted in these measures reflects congressional intent to ensure fundamental rights for all against state action, including state inaction, and to provide universal due process and equal application of law where states were delinquent.5 it was left to the courts to effectuate this intent and thereby secure the nascent liberties of the freedmen in the south. the supreme court profoundly failed to do either. the supreme court’s failures in this respect are incomprehensible given the debate language of the framers. in particular, the words of john bingham, thaddaeus stevens, james wilson, and jeremiah wilson in the house, and jacob howard of michigan, lyman trumbull of illinois, and john pool of north carolina in the senate, the principal framers, clearly expressed congress’s intent in passing the amendments and acts.6 as described below, the court, led by justices samuel miller and joseph bradley, chose to largely ignore this language and the framers’ post-war objectives as expressed during the debates. these justices, with little or no discussion of these objectives, settled on interpretations grounded in the jurisprudence of pre-war federalism.7 it is perhaps debatable whether different outcomes at the supreme court during and shortly after reconstruction could have prevented the violence, the denial of civil and legal rights, and the overall exclusion of the recently freed slaves from white society during this period and later.8 what is not debatable is the deep disconnect between how miller and bradley understood the fourteenth amendment and the enforcement acts, and how the 5 see discussion infra section ii 6 see id. 7 see discussion infra section iii. 8 this article is focused on outcomes at the united states supreme court. congressional intent fared better in the lower courts. see robert j. kaczorowski, revolutionary constitutionalism in the era of the civil war and reconstruction, 61 n.y.u. l. rev. 863, 867–868 (1986). no. 10:2] defying congressional intent 85 framers of those amendments and acts understood them. the failure of these justices, especially in slaughter-house9 and cruikshank,10 to give meaning to congressional intent helped institutionalize segregation for the next several decades, and facilitated the rise of jim crow. as noted by reconstruction scholar eric foner, “[w]hen it comes to the status of black americans, however the 14th amendment’s promise has never been fulfilled.”11 this article argues that the horror of the jim crow era, including the physical terror perpetrated by non-state actors, might have been prevented or curtailed had the waite and fuller courts: (1) endorsed the scope of the privileges and immunities clause as intended by the framers, including the incorporation of the first eight amendments, (2) acknowledged that under the fourteenth amendment and the enforcement act of 1870, state action was broader than the legislative branch, and that state inaction, in the form of denials or omissions of protection by the judicial and executive branches of state government, was violative of the fourteenth amendment, (3) acknowledged or understood that section 6 of the enforcement act of 1870 was directed at the conduct of individuals, and required neither a racial nor state action predicate, and, (4) given the term “civil rights” a construction sufficiently tolerant of the broader goals of the framers of the fourteenth amendment, as suggested by justice harlan. section ii, what the framers intended, discusses the congressional debates that preceded passage of the civil rights act of 1866, the fourteenth amendment, and the enforcement act of 1870. this section is critical to understanding the intent of congressional leaders at that time to provide freedmen rights equal 9 the slaughter-house cases, 83 u.s. 36 (1873); see discussion infra section iii. 10 united states v. cruikshank, 92 u.s. 542 (1875); see discussion infra section iii 11 eric foner, the lost promise of reconstruction, n.y. times (sept. 7, 2019) at sr 7. 86 columbia journal of race and law [vol. 10:2 to those of whites and to prevent the states from usurping these rights. section iii, justices miller’s and bradley’s misunderstanding of congressional intent, discusses the lead opinion of justice miller in slaughter-house cases,12 and the opinions of justice bradley in cruikshank13 and the civil rights cases.14. the discussion of these cases illustrates the failure of the court justices to acknowledge the framer’s intent as to the fourteenth amendment and the enforcement act of 1870, especially sec. 6 of that act. section iv, the fuller court’s further erosion of congressional intent, discusses the impact of justices miller’s and bradley’s opinions discussed in section ii, and the failure of the fuller court justices to acknowledge congressional intent as to the fourteenth amendment and the enforcement act of 1870. section v, conclusion, summarizes the lasting damage and impact of the cases discussed in sections ii and iii to the causes of civil rights and racial justice. ii. what the framers intended in december 1865, about eight months after president andrew johnson had been inaugurated, the 39th congress at last convened. by the time it convened, republican congressional leaders understood that they would have to confront the ugly outcomes of the black codes and the unabated racial attitudes in the south. the latter was exemplified by president andrew johnson’s assertion in september 1865 that “this is a country for white men and …as long as i am president it shall be a government for white men.”15 the response by these republicans over the next several years was to expand the authority of the federal government in its relationship to the states and to provide federal protection of 12 slaughter-house, 83 u.s. 36 (1873); see discussion infra section iii 13 united states v. cruikshank, 25 f. cas. at 708 (c.c.d. la. 1874). chief justice waite’s majority opinion at the supreme court is also discussed. 14 the civil rights cases, 109 u.s. 3 (1883). 15 brenda wineapple, the impeachers 83 (2019). no. 10:2] defying congressional intent 87 certain basic and fundamental rights. they did this with the passage of the cra of 1866, the fourteenth amendment, and the enforcement acts of 1870 and 1871, and, in so doing, brought about a historic shift in the balance of power between the states and the federal government. as a first step in this respect, congress decided to "inquire into the condition of the states which formed the socalled confederate states of america, and report whether they, or any of them, were entitled to be represented in either house of congress.”16 to this end, the congressional joint committee on reconstruction, a bipartisan group of republican and democratic senators and house members, took testimony and evidence on the existing social and political conditions in those states. for the next several months, the joint committee heard eye-witness accounts of the desperate circumstances that remained for the black community in much of the south.17 to address these conditions, committee member and representative john bingham, a republican from ohio, proposed for submission to congress the framework of what ultimately became the first section of the fourteenth amendment.18 a. the civil rights act of 1866 prior to the beginning of debates on the fourteenth amendment, congress passed the civil rights act of 1866 (cra of 1866), overriding president johnson’s veto. section 1 of the cra of 1866 set the tone for what was to come from the 39th congress by redefining united states citizenship.19 this section made all persons, regardless of race or color and without regard to previous 16 journal of the joint comm. on reconstruction, p. 5. 39th cong. 1st sess [hereinafter joint comm. on reconstruction]. 17 39th cong. 1st sess., supra note 2, at 2765. 18 joint comm. on reconstruction, supra note 16, at 39. 19u.s. const. amend. xiv; u.s. const. amend. xv; the civil rights act of 1866, ch. 31, § 1, 14 stat. 27 (1866). 88 columbia journal of race and law [vol. 10:2 condition of servitude, citizens of the united states.20 further, it declared that such citizens, again without regard to race or color, had the same rights in every state: to make and enforce contracts, to purchase, own, and convey property, to sue and give evidence, to full and equal protection of all laws as enjoyed by whites, and to the same penalties and punishments, notwithstanding “any law, statute, ordinance, regulation, or custom, to the contrary.”21 22 with this language, congressional republicans articulated a sweeping vision of a new america. the cra of 1866 proposed to eliminate all distinctions in civil rights entitlement between black and white americans.23 senator trumbull of illinois, who introduced the cra of 1866 in the senate, emphasized that the proposed bill would ensure that all people, both black and white, would have equal rights, and that each would be entitled to the same civil rights, namely, the rights to the fruit of their own labor, to make contracts, to buy and sell property, and to enjoy liberty and happiness.24 senator garrett davis of kentucky, who opposed the bill, understood the potential impact of senator trumbull’s bill and the consequences of racial equality in the united states.25 20 id. 21 39th cong., 1st sess., supra note 2, at 1857–1861. 22 in section 2 of the civil rights act of 1866, congress provided criminal penalties for “any person who, under color of any law, statute, ordinance, regulation, or custom …” deprived another of the rights protected by the act. see senator trumbull’s (chairman of the senate judicial committee) discussion of the meaning of “under color of any statute or custom” during debate on the civil rights act of 1866, cong. globe, 39th cong. 1st sess. 1758 (1866). 23 id. at 504 (“[i]ts intention [the 14 amendment] was to make him the opposite of a slave, to make him a freeman... there is to be hereafter no distinction between the white race and the black race."). 24 id. at 599. 25 senator davis predicted that the bill would ban discrimination in the rental of hotel rooms, and the use of salons and railroad cars. he asserted that the bill would “break down and sweep away” race discrimination in those settings, discrimination long established by ordinances, regulations, and customs, and would “bring the two races on the same plane of perfect no. 10:2] defying congressional intent 89 in the house, the record of debates on the bill discloses the same sentiment: to forbid all race discrimination and to eliminate any distinction in basic civil rights between white and black people.26 by “civil rights” the framers had in mind every right that pertains to citizens under the laws and constitution of the government.27 republican representatives james wilson and burton cook, republicans from iowa and illinois respectively, spoke ardently in support of these principles.28 (the majority opinion of justice potter stewart in jones v. alfred h. mayer, provides an excellent chronology and assessment of the intent of congress regarding the cra of 1866.29) b. the fourteenth amendment congress was now ready to take up what became the fourteenth amendment. some in congress criticized bingham’s proposed amendment on the ground that it was duplicative of the provisions of the recently passed cra of 1866. 30 representative equality.” id. at app. 183. senator davis, having passed away, was unable to appreciate the effects of the civil rights cases and plessy v. ferguson. 26 39th cong., 1st sess., supra note 2, at 1291 (statement of rep. bingham). 27 id. 28 id. at 1115–119 (statement of rep. wilson) (“and we must do as best we can to protect our citizens, from the highest to the lowest, from the whitest to the blackest, in the enjoyment of the great fundamental right which belong to all men.”); 1123–1125 (statement of rep. cook) (“[s]ir, i know of no way by which these men [freedmen] can be protected except it be by the action of congress, either by passing this bill or by passing a constitutional amendment.”). 29 jones v. alfred h. mayer co., 392 u.s. 409, 422–437 (1968) ("stressing what they consider to be the revolutionary implications of so literal a reading of § 1982, the respondents argue that congress cannot possibly have intended any such result. our examination of the relevant history, however, persuades us that congress meant exactly what it said."). 30 39th cong., 1st sess., supra note 2, at 2459 (“the first time that the south with their copperhead allies obtain the command of congress [the cra of 1866] will be repealed.”). 90 columbia journal of race and law [vol. 10:2 thaddeus stevens of pennsylvania argued, however, as did other house members, that those rights would be more permanent if made part of the constitution and not subject to nullification by a simple majority in a later congress.31 stevens then addressed the meaning of bingham’s proposed first clause that would prohibit the states from abridging the privileges and immunities of citizens of the united states and from depriving persons of life, liberty, or property or equal protection of the laws.32 he said these provisions are asserted “in some form or other” in the declaration of independence.33 he also said the first section of the amendment was curative in that it would impose the same constitutional restrictions on the states as then imposed on the federal government.34 stevens then described the second section of the proposed amendment which fixed the basis of representation in congress.35 section three, said stevens, imposed voting limits on former confederate soldiers. section four prohibited any addition to the federal debt of those amounts owed by the former confederate states.36 andrew rogers, a democrat from new jersey, responded to stevens and spoke dramatically in opposition to the proposed amendment. federalism was clearly on rogers’ mind as he told the house that the proposed first section of the amendment was 31 id. 32 see 39th cong., 1st sess., supra note 2, at 5; see also u.s. const. amend. xiv §1 (“all persons born or naturalized in the united states, and subject to the jurisdiction thereof, are citizens of the united states and the state wherein they reside. no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”). 33 id. 34 id. 35 id. 36 id. at 2460. stevens at this point did not discuss the enforcement section of the proposed amendment which became section five. see infra appendix. no. 10:2] defying congressional intent 91 dangerous to liberty in that it “saps” the foundation of the government, “destroys the elementary principles of the states,” and “annihilates all the rights … of the states.”37 rogers argued that “all the rights we have under the laws of the [country] are embraced under the definition of privileges and immunities.”38 thus, if the amendment ever became law it would “prevent any state from refusing to allow anything to anybody …”.39 to this rogers added that in such an event the country would witness a “revolution worse than that through which we just passed.”40 representative bingham took to the floor shortly after rogers spoke and argued that there was a “want” in the country following the war “to protect by national law the privileges and immunities of all the citizens of the republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged and denied by the unconstitutional acts of any state.”41 bingham then made clear that the first section of the amendment took nothing from the states because, in his words, “no state ever had the right … to deny to any freedmen the equal protection of the laws or to abridge the privileges and immunities of any citizen of the republic … .”42 in support of his argument of a “want,” bingham pointed to the supreme court’s holding in barron v. mayor and city council of baltimore.43 in that case, the court held that the bill of rights did not apply to the states, but only to the federal government. bingham believed his proposed amendment corrected that omission by embedding in the constitution the right of all 37 id. at 2538. 38 39th cong., 1st sess., supra note 2, at 2538. 39 id. 40 id. the same representative rogers voted against adoption of the thirteenth amendment on the ground that the amendment robbed people of the millions they had invested in “negroes” as property. id. at 1123. 41 39th cong., 1st sess., supra note 2, at 2542. 42 id. at 2542. 43 barron v. baltimore, 32 u.s. 243 (1833). 92 columbia journal of race and law [vol. 10:2 citizens to the same privileges and immunities, and to equal protection of all laws whenever the same was abridged by the states.44 bingham’s proposed amendment passed the house on may 10, 1866, by a vote of 128 to 37. only five border state republicans voted nay.45 the senate took up the house bill on may 23, 1866. senator jacob howard, a republican from michigan who had also served on the joint committee, opened the debate. he first addressed the meaning of the term “citizen of the united states.”46 he believed that a citizen of the united states was simply one who was born within the boundaries of the united states and subject to its laws.47 on may 30, 1866, howard, joined by a democratic senator from maryland, proposed the language currently in the first section: “all persons born or naturalized in the united states, and subject to the jurisdiction thereof, are citizens of the united states and the states wherein they reside.”48 this language was necessary because the constitution otherwise did not define national citizenship except to imply that it was a byproduct of state citizenship.49 with the new language proposed by senator howard, national citizenship was no longer dependent upon state citizenship. national citizenship instead became primary, with state citizenship derivative of it. the framers of the fourteenth 44 39th cong., 1st sess., supra note 2, at 2542 ("the want of the republic today is... for the supremacy of the laws, for the restoration of all the states to their political rights and powers under such irrevocable guarantees as will forevermore secure the safety of the republic, the equality of the states, and the equal rights of all the people under the sanctions of inviolable law... allow me... to say that this amendment takes from no state any right that ever pertained to it. no state ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws."). 45 id. 46 id. at 2765. 47 id. 48 id. at 2890. 49 id. at 2893. no. 10:2] defying congressional intent 93 amendment thus removed the states’ authority to define eligibility for national citizenship, nullifying the holding in dred scott.50 senator howard then addressed the phrase “privileges and immunities.”51 citizens, he declared, are entitled “to all the privileges and immunities of citizens in the several states.”52 “they are, by constitutional right, entitled to these privileges and immunities, and may assert this right and these privileges and immunities, and ask for their enforcement whenever they go within the limits of the several states of the union.”53 significantly, howard’s conception of the phrase made no distinction between privileges and immunities based on state and national citizenship. rather, howard’s proposed fourteenth amendment provided for one set of privileges and immunities, national in scope, and unrelated to state residence.54 as to a specific definition of the phrase, he conceded that it was not easily defined, but quoted at length and with approval the language of judge washington in corfield v. coryell: we feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this union, from the time of their becoming free, independent, and sovereign. what these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. they may, 50 horace e. flack, the adoption of the fourteenth amendment 64 (1908). 51 39th cong., 1st sess., supra note 2, at 2765. 52 id. 53 id. 54 id. 94 columbia journal of race and law [vol. 10:2 however, be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole…..55 critically, senator howard then said, “to these privileges and immunities … should be added the personal rights guarantied [sic] and secured by the first eight amendments of the constitution.”56 noting that these rights were currently then enforceable only against the federal government, he echoed representative bingham stating that “[t]he great object of the first section of this [fourteenth] amendment is, therefore, to restrain the power of the states and compel them at all times to respect these great fundamental guarantees.”57 but, said howard, the first section did not confer any power on congress, rather this power derived from the fifth section of the proposed amendment.58 under the fifth section, congress had the “authority to pass laws which are appropriate to the attainment of the great object of the amendment.”59 according to howard, this section was “a direct affirmative delegation of power to 55 corfield v. coryell, 6 f. cas. 546, 551-552 (1823); 39th cong., 1st sess., supra note 2, at 2765. 56 39th cong., 1st sess., supra note 2 at 2765. 57 id. at 2766. during the house debates on the enforcement act of 1871, representative bingham clarified his intent as to the meaning and scope of the privileges and immunities clause. the rights embraced by this clause, he said, “are defined in the first eight amendments” to the constitution of the united states. cong. globe 42nd cong. 1st sess. app. 84. during these same debates, representatives henry dawes and jeremiah wilson also asserted that the first eight amendments were embraced by the privileges and immunities clause of the fourteenth amendment. cong. globe 42nd cong. 1st sess. at 475–477, 481–483 (1871). 58 39th cong., 1st sess., supra note 2, at 2766. 59 id. no. 10:2] defying congressional intent 95 congress to carry out all the principles of all these guarantees, a power not found in the constitution.”60 then, reading the two sections together, he declared that they will “forever disable [the states] from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the united states.”61 howard’s articulation of the federal government’s authority to provide federal protection of these rights against state intrusion was more than a formula for a corrective role only. it was a concept of an active, prohibitory government, of the type envisioned by both stevens and bingham.62 on june 8, 1866, the senate, after revising the citizenship language as proposed by senator howard, approved the proposed fourteenth amendment by a vote of thirty-three to eight.63 five days later, the house accepted the senate’s version.64 c. “deprive” and “deny”: the enforcement acts of 1870 and 1871 by february 1870, congress recognized that legislation was needed to address the rising incidents of racial violence, including murders, engulfing portions of the south.65 congress then debated what became the enforcement act of 1870. bingham, who authored the bill, sought to provide mechanisms for federal enforcement of rights protected by the fifteenth amendment.66 when the bill reached the senate, however, republican john pool of north 60 id. 61 id. 62 id. the “appropriate legislation” language of the fifth section of the amendment also provided constitutional cover and a measure of permanency for the recently passed cra of 1866. as such it addressed the concern of representative stevens. see supra note 31. 63 id. at 3042. 64 id. at 3149. 65 eric foner, a short history of reconstruction 195 (1990). 66 cong. globe, 41st cong., 2nd sess. 1459 (1870) [hereinafter 41st cong., 2nd sess.]. 96 columbia journal of race and law [vol. 10:2 carolina articulated an expanded view of the federal government’s role under the proposed bill.67 citing the words “deprive” and “deny” in the first section of the fourteenth amendment and the words “denied” and “abridged” in the fifteenth amendment, senator pool said such language described “acts of omission” by a state.68 it was pool’s view that the federal government must possess the authority to enforce rights secured by the constitution when individuals deprived other citizens of these rights, or when the state refused to act to secure those rights.69 in pool’s view, the section 5 of the fourteenth amendment and section 2 of the fifteenth amendment authorized such legislation.70 to this end, he proposed additional sections to what became the enforcement act of 1870.71 pool’s proposed section 6 did not contain a requirement that the target of the action at issue be black or another race, nor did it require that the perpetrator of the action at issue by a state actor.72 senator william steward, pool’s republican colleague from nevada, proposed an amendment to the stated purpose of the 67 id. at 3611–3613. 68 id. at 3611. 69 id. 70 id. 71 id. at 3612. 72 id. section 6 of the enforcement act of 1870 reads: “and be it further enacted, that if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the united states, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,— the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,—and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the constitution or laws of the united states.” no. 10:2] defying congressional intent 97 enforcement act of 1870.73 in adding “and for other purposes,” to the act, he wanted to clarify that one of the purposes of this language was to enforce the fourteenth amendment and the cra of 1866 which was reenacted under the act as section 18.74 with this clarifying language, federal prosecutors now had constitutional authority to institute original federal action against individuals where the state has not acted to enforce the rights secured by the fourteenth amendment.75 as violence in the south continued, congress revisited the meaning of “deprive” and “deny” during its debates on what ultimately became the enforcement act of 1871, also known as the ku klux klan act of 1871.76 to this end, representative samuel shellabarger of ohio argued that the fourteenth amendment gave congress direct enforcement authority when a state denied, through its authorities, equal protection for all.77 representative aaron perry from ohio echoed these sentiments, pointedly stating that “deny” as used in the fourteenth amendment equated with neglect or inattention to duty; in other words, a refusal to perform.78 representative jeremiah wilson of indiana was explicit, stating that denial meant more than repugnant state legislation.79 he maintained that when a state government, for whatever reason, failed or refused to execute and apply its laws in an equal manner, “it is the solemn duty of congress, under the authority of the fifth 73 id. at 3690. 74 id. the reenactment of the cra of 1866 in section 18 of the enforcement act of 1870, post ratification of the fourteenth amendment, removed any question as to the constitutionality of the cra of 1866. 75 section 6 has survived modification over the years and is now codified as 18 u.s.c. § 241. 76 jean edward smith, grant 544–546 (2001). 77 cong. globe, 42nd cong., 1st sess. appendix 67–71 (1871) [hereinafter 42nd cong., 1st sess. app.]. 78 id. at 80. 79 cong. globe, 42nd cong., 1st sess. 482 (1871) [hereinafter 42nd cong., 1st sess.]. 98 columbia journal of race and law [vol. 10:2 section of the fourteenth amendment, to enforce the protections which the state withholds.”80 representative wilson also challenged legislators who argued that the words “deny” and “deprive” in the fourteenth amendment were inserted simply to prohibit states from affirmatively enacting discriminatory legislation.81 were that the intent of the framers, he said, the first section of the fourteenth amendment would have read, “no law shall be enacted” or “no legislature shall enact” 82 to clarify and give meaning to these terms. 83absent such clarification, the word “state” 84 as used in the amendment must refer not only to the legislative branch, but as well to the executive and judicial branches of state government.85 wilson was not directly challenged on this assertion. thus, wilson and others who voted to approve the enforcement act of 1871 made clear that a refusal or inability by the state executive or judicial branch to uniformly enforce constitutionally valid state laws was to deny or deprive the affected citizens of their rights under the fourteenth amendment. 86 during the senate portion of the debates, senator pool spoke of failures of state governments to enforce the constitutional 80 id. 81 id. 82 id. 83 although wilson did not mention the short distance in years since passage of the fourteenth amendment and the debates on the enforcement act of 1871, it is fair to say that those in congress who were present for both enactments would have recalled if congress intended to limit its enforcement powers to state legislative branches. 84 42nd cong., 1st sess., supra note 79, at 482. 85 this same point was made by justice bradley in the civil rights cases, infra p. 100. 86 42nd cong., 1st sess., supra note 79, at 482. representative wilson’s statements on the meaning of “state” reflect senator trumbull’s understanding of the reach and meaning of the phase “color of law…or custom.” no. 10:2] defying congressional intent 99 rights of freedmen and the duty of the federal government to protect their rights.87 as evidence, senator pool submitted into the senate record testimony from about eight witnesses of their first-hand knowledge of assaults, arson, and murder against blacks in north carolina.88 he also submitted correspondence from the governor of north carolina to the effect that the state militia was unable to properly respond to this violence.89 pool said that by virtue of the freedmen’s national citizenship, the united states would, through appropriate legislation and its courts, “extend over him within the states the shield of national authority.”90 d. the clear message from congress passage of the fourteenth amendment and the enforcement acts conveyed a congressional intent to redefine the relationship between the states and the federal government. as described by senator howard, congress, through the amendment, intended to forever disable the states from encroaching upon the privileges and immunities of citizens.91 further, senator pool made clear that failures or unwillingness by the states to protect these privileges would no longer be tolerated. this was ensured through the enforcement regime authorized under section 5 of the amendment. congress also removed from the states their ability to define national citizenship. from then on citizenship became a unitary concept in the sense that state citizenship was derivative of national citizenship and was simply a function of birth or naturalization in the united states. finally, the framers declared that the right to assert the first eight amendments to the constitution against the state was protected by the fourteenth 87 id. at 607–608. 88 id. at 606. 89 id. at 607. 90 id. at 609. 91 see supra note 65. 100 columbia journal of race and law [vol. 10:2 amendment. 92 in furtherance of their goal to provide effective enforcement of the fourteenth amendment, republican lawmakers took the position that the term “state” in section 1 of the fourteenth amendment included all branches of state government and was not limited to the legislative branch. also, by the words “deprive” and “deny” in section 1 of the fourteenth amendment, these same lawmakers asserted that failure by the states for whatever reason—including omission, inaction, or inability—to grant equal protection of laws to all citizens and to provide equal due process of the law was a form of state action violative of the amendment. the supreme court, however, had yet to weigh in on its understanding of the new amendments and enforcement acts. this would soon change. by december 1870, what became the slaughter-house cases was then before the u.s. supreme court.93 between then and 1873, when the court issued its decision, justice miller had sufficient time to review the language and intent of congress with respect to the fourteenth amendment and the enforcement acts.94 the same would have been true with respect to justice bradley in cruikshank and civil rights cases. in 92 the question of incorporation has generated significant debate on both sides. the direct language from congressional leaders and sponsors during the debates on the fourteenth amendment should be most probative of congressional intent in this respect. so should the language of the representatives and senators who opposed the reach of the amendment, for they understood exactly what the authors of the amendment intended. justice hugo black’s appendix to his dissent in adamson v. california, 332 u.s. 46 (1947) is compelling on this issue. for a fuller and, in the writer’s view, definitive discussion of this topic, see richard l. aynes, on misreading john bingham and the fourteenth amendment, (1993). the 39th congress project. 2. http://ideaexchange.uakron.edu/conlawakron 39th/2. 93 the slaughter-house cases, 83 u.s. 36, 44 (1873). 94 on july 28, 1868, secretary of state william seward announced that a sufficient number of states had adopted the fourteenth amendment to make it part of the constitution. no. 10:2] defying congressional intent 101 addition, the court contemporaneously acknowledged that “[c]ourts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary, in order to ascertain the reason as well as the meaning of the particular provisions in it.”95 justice robert jackson said the same many years later.96 iii. justices miller’s and bradley’s consequential misunderstanding of congressional intent the events that gave rise to the supreme court’s assessment of the fourteenth amendment began in 1869 when the louisiana state legislature confined livestock slaughtering in new orleans to one area and one company. at the time, new orleans was infamous for its filth; it had no public sewer system and the city was prone to outbreaks of cholera and yellow fever.97 these conditions were due in no small part to the livestock slaughterhouses operating in crowded areas of the city, including 95 united states v. union pacific railroad company, 91 u.s. 72, 79 (1875). although this opinion was issued a year after the circuit court cruikshank opinion, the supreme court’s cruikshank opinion issued in the same term. justice davis, a co-justice with justice bradley and waite, wrote the opinion. bradley and waite would have been aware of the quoted language and the principle involved at the time waite drafted the cruikshank opinion. neither dissented in union pacific. 96 larry m. eig, cong. research serv. 97–589, statutory interpretation: general principles and recent trends 5 (2014) (“it is well to keep in mind, however, that the overriding objective of statutory construction has been to effectuate statutory purpose as expressed in a law’s text. as justice jackson put it 68 years ago, ‘[h]owever well these rules may serve at times to decipher legislative intent, they long have been subordinated to the doctrine that courts will construe the details of an act in conformity with its dominating general purpose, read text in the light of context and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy.[sec v. joiner, 320 u.s. 344, 350–351 (1943)].’”). 97 michael a. ross, justice of shattered dreams 190 (2003). 102 columbia journal of race and law [vol. 10:2 alongside tenements, schools, and hospitals.98 livestock butchering along the mississippi river occurred above the intake for the city’s water supply, which also facilitated unhygienic conditions throughout the city.99 a. slaughter-house regulation in response to these conditions, louisiana’s legislature created the crescent city livestock landing and slaughterhouse company (crescent city), a state established monopoly.100 by creating a private, chartered entity, the state would not have to finance the operation, which it could not afford to do. louisiana at this time was suffering acute financial difficulties, in part because whites refused to pay taxes to the reconstruction government and in part because of expenses associated with the damage cause by the civil war.101 louisiana retained regulatory authority over crescent city under its “police power,” an arrangement typically granted by then legislatures to regulate slaughterhouse operations.102 independent butchers, their livelihood threatened by the new law, challenged the state--granted monopoly on four grounds: that it created an involuntary servitude in violation of the thirteenth amendment, that it interfered with their (unspecified) “privileges and immunities” of national citizenship given to them under the thirteenth and fourteenth amendments, that it denied the plaintiffs equal protection of the law, and that it deprived them of property without due process.103 in a 5-4 decision against the butchers, the supreme court’s majority found for crescent city and louisiana.104 justice samuel miller, the author of the majority opinion, wrote that the 98 slaughter-house, 83 u.s. at 64; ross, supra note 97, at 190. 99 ross, supra note 97, at 191. 100 id. at 189-90. 101 id. at 194. 102 slaughter-house, 83 u.s. at 41. 103 id. at 66. 104 id. at 83. no. 10:2] defying congressional intent 103 creation of crescent city and its use requirements was a proper exercise of the reserved power of the state to protect the health and sanitation conditions of the citizens of new orleans.105 justice field, in his lengthy dissent,106 asserted that the state charter that created crescent city amounted to a grant of a monopoly that prevented other slaughter houses from operating in the same geographic area.107 and, said field, monopolies that restrict work opportunities were an “invasion of privileges” secured by the fourteenth amendment and thus void.108 while much of miller’s opinion regarding state police power at the time is supportable, what is not is miller’s claims regarding the meaning of the fourteenth amendment’s citizenship, and privileges and immunities clauses.109 miller read the two clauses together and concluded that national and state citizenship were not only distinct from one another, but also gave rise to separate privileges and immunities.110 miller took the language “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states,” in the second sentence of the amendment, and compared it to the wording in the first sentence of the amendment.111 he then claimed it was “too clear for argument” that the framers intended to protect only national privileges and immunities, thereby omitting protection for state privileges and immunities.112 thus, said miller, “it is only the former [national privileges and immunities] which are placed by this clause under the protection of the federal constitution, and that the latter, whatever they may be, are not intended to have any 105 id. at 64. 106 id. at 83-111. 107 slaughter-house, 83 u.s. at 86. 108 id. at 101. 109 u.s. const. amend. xiv, §1. 110 slaughter-house, 83 u.s. at 74 (only privileges and immunities of citizens of the united states are protected by the fourteenth amendment, not the privileges and immunities of citizens of the state). 111 id. 112 id. 104 columbia journal of race and law [vol. 10:2 additional protection by this paragraph of the amendment.”113 miller’s conclusions in this respect were contrived. his assertion that the phrase “privileges or immunities of citizens of the united states” was a signal that the framers intended to withhold federal protection in the states against state conduct toward its citizens is without foundation. there is no evidence in the record of debates that republican senators or house members constructed the first two sentences of the amendment for the purpose that miller described. rather, representative bingham and senator howard, along with others, consistently described privileges and immunities as a unitary concept that applied to all citizens of free governments.114 further, the very intent of the first clause of the amendment was to protect the embodied rights from state infringement where such rights were not available either because they were denied or because they were neglected by the states.115 justice miller chose to ignore this, arguing that congress would not intend to restrain the states. in fact, this is exactly what the framers had in mind as described in the first paragraph of part d, section 1.116 but justice miller was not finished. having concluded that there were distinct national and state privileges and immunities, he then defined what those national privileges and immunities were. they included, he said, the right of citizens to peaceably assemble and to assert claims against the federal government, the right to free access to seaports and courts of the united states, the right to demand protection on the high seas, and the entitlement 113 id. 114 see supra notes 44. 115 see supra p. 84. see also cong. globe, 42nd cong., 1st sess., supra note 77, at 85. (speech by representative bingham (states may have concurrent enforcement responsibility with the federal government for protection of privileges and immunities, but the federal government may act independently to enforce any rights denied by the states, including rights denied by commission or omission.) 116 see supra p. 9. no. 10:2] defying congressional intent 105 to writs of habeas corpus.117 these rights, according to miller, owed their existence and enforcement to the federal government.118 as to other rights, such as the right to acquire and possess property, the right to pursue happiness and safety—in general the whole panoply of civil rights thought to be fundamental—miller made clear that they were a function of state citizenship and as such “lay within the constitutional and legislative power of the states.”119 in other words, according to miller, the fourteenth amendment did not alter the historic locus of enforcement of these rights (or privileges). miller admitted that the line between federal and state power had not been well defined and that following the war many had argued for a strong national government. but miller doubted that the purpose of the amendments was to destroy the existing balance—again ignoring compelling evidence to the contrary.120 justice miller was a moderate republican who found the treatment of black citizens by southern whites to be repugnant.121 he rejected the notion that dismissal of the butchers’ claims was also a general denunciation of black civil rights. according to miller, the fourteenth amendment’s equal protection clause was intended to redress state discrimination against the recently emancipated freedmen.122 miller believed that congress, under section 5 of the fourteenth amendment, had express authority to enact legislation curtailing such discrimination.123 indeed, congress had already enacted such legislation in section 1 of the cra of 1866. 117 slaughter-house, 83 u.s. at 79. 118 id. 119 id. at 77. 120 id. at 82; see also supra note 13 (discussing representative rogers’ understanding of the purpose of the fourteenth amendment, a view that neither stevens nor bingham thought necessary to rebut). 121 ross, supra note 97, at 164–65. 122 slaughter-house, 83 u.s. at 81. 123 id. at 81. miller’s view in this respect was ignored by the majority in plessy v. ferguson and its progeny. see infra p. 105. 106 columbia journal of race and law [vol. 10:2 in partial defense of miller, it is unlikely that he could have clearly foreseen the complete collapse of reconstruction and the reemergence of white political power.124 miller would have known that congress had recently passed the enforcement acts of 1870 and 1871.125 at the time, these acts seemed to hold considerable promise for protection against individual abuses of black civil rights, especially given that president grant had shown a willingness to use legal and military authority in the south to enforce compliance with federal law.126 but it is difficult to justify miller’s disregard of the framers’ intent regarding the scope of the fourteenth amendment’s privilege and immunities clause.127 the 39th congress had heard first-hand reports of widespread atrocities and injustices toward the freedmen and union sympathizers in the former confederacy.128 these reports cemented the belief of congressional republicans that federal oversight and intervention was necessary when states denied any citizen the privileges and immunities to which all united states citizens were entitled.129 further, it was unnecessary for miller to eviscerate the privileges and immunities clause. miller’s opinion on the need for louisiana to address sanitary conditions in new orleans was sound. there was no denying that new orleans had experienced repeated health crises, deadly in nature, caused in part by the proximity of 124 ross, supra note 97, at 250; foner, supra note 65, at 247. 125 the enforcement act of 1871 (or the ku klux klan act) moved republicans to the far limits of enforcement of the 14th and 15th amendments. under this act, which was designed to protect freedmen against hostile state action or inaction by state governments, violence that infringed upon civil and political acts became a federal crime punishable by the federal government. aggrieved individuals could sue under this act, but enforcement fell to the federal government. although only a small percentage of violent acts were prosecuted under this act, the demonstrated willingness of the federal government to prosecute at all resulted in a dramatic decline in klan violence. see foner, supra note 65, at 196–98. 126 foner, supra note 65 at 197. 127 see supra pp. 11–12. 128 see supra pp. 7–8. 129 id. no. 10:2] defying congressional intent 107 livestock slaughtering to population centers. field and bradley, who disliked the claimed monopoly provisions of the legislation that created crescent city, dismissed the health threats at issue as a pretext for the legislation. miller, who as a physician earlier in his career had treated and seen first-hand the fatal and widespread effects of cholera,130 correctly saw the health issue in a different light.131 finally, there was (and is) no inherent conflict between enforcement of fundamental rights and state efforts to protect its citizens from deadly disease. this is exactly what judge washington said in corfield.132 the lasting outcome of slaughter-house was a limited understanding of the fourteenth amendment’s privileges or immunities clause.133 under miller’s interpretation, protection from state infringement of citizens’ fundamental rights would continue to be the exclusive province of state courts. further, said miller, black people could rely on the equal protection clause of the fourteenth amendment for whatever protection they needed against discriminatory state laws.134 but such access was of limited value. equal protection jurisprudence during this period, and for the next sixty-five years, was controlled by the equivalent of a rational basis test. under this test, state and local laws could survive constitutional scrutiny if local officials advanced almost any reason, citing the reserved powers doctrine for the law or ruling in question.135 plessy v. ferguson136 was one of the most devastating examples of the weakness of this 130 ross, supra note 97, at 11-12. 131 slaughter-house, 83 u.s. at 64. 132 see supra note 58. 133 mcdonald v. city of chicago, illinois, 561 u.s. 742, 808–09 (2010). 134 slaughter-house, 83 u.s. at 81. 135 see price v. illinois, 238 u.s. 446, 453 (1915) (legislative enactment not discriminatory unless it is without any reasonable basis or exceeds bounds of reasonable discretion). 136 plessy v. ferguson, 163 u.s 537, at 544 (1896). 108 columbia journal of race and law [vol. 10:2 jurisprudence. not until united states v. carolene products co.137 did the supreme court suggest a more rigorous test for invalidating state and local laws that targeted certain “discrete and insular minorities.”138 justice miller’s belief that the equal protection clause would be an adequate substitute for his truncated concepts of the privileges and immunities clause was a grave error. although slaughter-house was now the law of the land, imagine the possible development of civil rights jurisprudence had justice miller substituted the framer’s understanding of the scope of fundamental rights and the associated privileges and immunities for his own. for example, in pleadings, prosecutors might have asserted that all united states citizens were entitled to federal protection of the fourteenth amendment’s privileges and immunities clause, as that clause was defined by senator howard, and to the rights enumerated in section 1 of the cra of 1866.139 in so asserting, prosecutors would have been able to cite to the enforcement mandates embodied in the other sections of the cra of 1866140 and to the enforcement acts of 1870 and 1871 as authority for their action. proceeding in this manner, arguably, would have been a more productive and effective framework in which to litigate and protect these rights rather than having to proceed under the then existing equal protection regime. as noted above, the difficulty with proceeding under an equal protection claim at that time would have been the defense that the state law in question—for example a law severely limiting ownership of mules on sanitary grounds— had a reasonable basis as determined by the state legislature. if this law did not contain overtly racist content, it likely would have survived a challenge notwithstanding its discriminatory impact. had 137 carolene products co., 304 u.s. 144, 152–153, n. 4 (1938) (statutes directed at racial minorities or statutes aimed at political processes relied upon by minorities may call for more searching judicial inquiry). 138 id. 139 these rights included, for example, the right to make and enforce contracts, to sue, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property. 140 sec. 4, for example, authorized proceedings against “all and every person” who violated the cra of 1866. no. 10:2] defying congressional intent 109 miller not severely limited the understanding of the privileges and immunities clause, prosecutors could have challenged this law in federal court under the theory that all citizens had a fundamental right to own farm animals in reasonable numbers for food production. b. the colfax massacre the supreme court was soon to be given another opportunity to pass judgment on the fourteenth amendment and, this time, the meaning of sec. 6 of the enforcement act of 1870. as in slaughter-house, the circuit court opinion in cruikshank141 and the follow-up supreme court opinion142 departed significantly from the intent of the fourteenth amendment and the sec. 6 framers.143 the event that gave rise to these cases was the massacre of several black men on april 13, 1873, in the town of colfax, louisiana. on that date a group of about 140 armed white men, most of whom were former confederate soldiers, attacked a group of lightly armed, mostly black men who had occupied the colfax courthouse.144 the attack on the courthouse was the outgrowth of the disputed 1872 elections in grant parish (the location of colfax) where there had been reports of illegal intimidation of black voters, and a hole was found in the side of the ballot box through which ballots in favor of white candidates were likely stuffed.145 c.c. nash, the leader of the white group, believed himself to have been the properly elected sheriff of grant parish, but louisiana governor kellogg refused to commission nash.146 william ward, 141 united states v. cruickshank, 25 f. cas. 707 (1874). 142 united states v. cruickshank, 92 u.s. 542, 552–553 (1875). 143 see supra section ii-b and ii-c. 144 estimates of the number in this group vary considerably. this figure is from charles lane, the day freedom died 91 (2008). 145 id. at 66. 146 id. at 69–71. 110 columbia journal of race and law [vol. 10:2 a former slave and a union army veteran, had run for a state representative position in the same election, but james w. hadnot, a white supporter of nash, was declared the winner of that race.147 when hadnot learned that ward and his supporters were at the courthouse, hadnot made it known that he along with other white men were going to take the courthouse and kill the black occupants, including ward.148 on april 13, 1873, nash and his contingent, which included william cruickshank and hadnot, rode into colfax and surrounded the courthouse.149 in the melee that followed, several black men were killed during the initial fighting. following a surrender by those remaining, white mobs hunted down any who escaped, killing many of them. the black men who surrendered were later murdered while in custody, many brutally. although estimates vary, about 100 black citizens of colfax were killed during what became known as the colfax massacre. at most, two or three of the white attackers were killed, including james hadnot. federal troops arrived in colfax about a week after the massacre, but by then colfax was mostly peaceful.150 u. s. troops eventually arrested seven white men, including william cruikshank and johnnie hadnot, james’ nephew.151 the u.s. attorney then obtained indictments against about one-hundred white perpetrators of the massacre and charged them under with violations of sections 6 and 7 of the enforcement act of 1870.152 specifically, the u.s. attorney charged the defendants with eight counts of banding together and conspiracy to deprive certain black persons, whom he named, of their rights under section 6 and eight counts under section 7.153 the counts under section 6 were, at count 1, violating the right of the named black persons to 147 id. at 66. 148 id. at 71. 149 lane, supra note 144 , at 90–107. 150 id. at 130. 151 id. at 153. 152 id. at 124–26. 153 id. no. 10:2] defying congressional intent 111 peacefully assemble, at count 2, violating their right to keep and bear arms, at count 3, depriving them of life and liberty without due process of law, at count 4, of depriving them of protection of persons and property, at count 5, of violating their privileges and immunities, at count 6 of interfering with their right to vote, at count 7, of conspiring to injure those who voted or attempted to vote, and, at count 8, a general charge of violating their rights and privileges as secured by the constitution and federal law.154 the counts under section 7 of the act repeated the allegations under section 6, but specified penalties for these violations.155 they were tried in federal court, three were found guilty of conspiracy, and their appeal became united states v. cruikshank.156 justice bradley, who was “riding circuit” in the circuit court of louisiana, and circuit judge william woods heard the motion to set aside the guilty verdict.157 bradley granted the defendant’s motion, noting judge woods disagreement, and the convicted white men were set free immediately although each was required to put up $5,000 as bail.158 justice bradley began his opinion by noting that the indictments at issue were authorized by the enforcement act of 1870.159 he then discussed at length his views on fundamental rights, congressional enforcement power under the post-civil war amendments, and whether, under these amendments, the enforcement act rested on proper constitutional authority.160 specifically, as to the fourteenth amendment, bradley asserted that the federal government had only a limited role with respect to fundamental or secured rights, rights that were inherited and predated the constitution.161 examples of such fundamental or secured rights 154 lane, supra note 144, at 124–26. 155 id. 156 united states v. cruikshank, 25 f. cas. 707, 708 (d.c.c. la. 1874). 157 id. 158 lane, supra note 144, at 212. 159 cruikshank, 25 f. cas. at 708. 160 id. at 709–14. 161 id. at 714. 112 columbia journal of race and law [vol. 10:2 included claims of denial of life, liberty, and property.162 only in instances of failure by a state to comply with its protective duty of these rights, as manifested by arbitrary and unjust state legislation, did the federal government have authority to initiate enforcement measures or legislation to correct obnoxious state laws.163 absent this circumstance, bradley declared that congress was without authority to legislate prospectively for the direct enforcement of citizens’ privileges and immunities.164 having laid out his beliefs as to federal enforcement under the post-civil war amendments, he turned to each of the indictment counts.165 without any mention of the facts that supported the indictments or any reference to congressional intent, he dismissed them all.166 in the process, he declared that section 6 of the enforcement act of 1870 was unconstitutional.167 as to the first count, bradley did not mention or discuss section 6. he noted that this first amendment right was now protected by the fourteenth amendment against interference by the states.168 in so asserting, he implied that the first amendment was incorporated by the fourteenth. but he dismissed this count on the grounds that enforcement of the rights guaranteed by first amendment was left to the states.169 bradley then said congress could enforce the fourteenth amendment if the states violated the first amendment.170 but bradley did not address whether the defendants, as opposed to the state, had acted unlawfully under section 6 as had been alleged.171 bradley simply and cryptically dismissed the second count, conspiracy to interfere with the right of certain citizens to 162 id. at 710. 163 id. 164 united states v. cruikshank, 25 f. cas. at 710–11. 165 id. at 714–16. 166 id. at 716. 167 id. at 715. 168 id. at 714–15. 169 id. 170 id. 171 id. at 709–14. no. 10:2] defying congressional intent 113 bear arms, for the same reason as the first.172 again, he made no mention of the facts. bradley also dismissed the third count on the ground that the unlawful conduct was not attributable to the state, the same fault he attributed to the first two counts.173 in his dismissals of counts one, two, and three of the indictment because the indictment failed to name the state as an actor, justice bradley disregarded the language of senator pool and representative jeremiah wilson.174 both legislators were clear that in circumstances where states failed to act, for whatever reason, the federal government had authority to provide the missing protection.175 in bradley’s narrow conception, however, the state had fulfilled its duty under the fourteenth amendment if it simply refrained from passing any law to abridge the privileges and immunities of citizens.176 even if the state government took no affirmative action to secure citizens’ rights, or if other branches of state government were unwilling or unable to ensure equal enforcement of state laws, the federal government, in bradley’s view, could not directly enforce these privileges and immunities.177 172 id. at 715. 173 id. 174 see supra pp. 7–9. 175 see infra fn. 177. 176 some historians have argued that bradley’s concept of state duty included omissions by the state or failures to act as he seemingly implied in his slaughter-house dissent. (slaughter-house¸83 u.s. at 121). his opinion in cruikshank, however, does not support such a reading. the composite of bradley’s language in cruikshank, although at times obscure, points to a view that federal enforcement was limited solely to corrective remedies for repugnant state laws that interfered with citizens privileges and immunities. united states v. cruikshank, 25 f. cas. at 710–711, 714 (1874). more importantly, it could not have been bradley’s view that state inaction or inability in the face of horrific violence triggered original and permissible federal intervention. this is apparent given the clear failure of the state of louisiana and grant perish to act both before (lane, supra note 144, at 85– 86) and in the immediate aftermath of the colfax massacre. if bradley had believed that state or local law enforcement omissions were grounds for original federal prosecution, the facts of the massacre provided ample room for bradley to sustain the trial court findings. 177 united states v. cruikshank, 25 f. cas. at 714. 114 columbia journal of race and law [vol. 10:2 the difficulty for bradley then was to find a way around the obvious failure by louisiana and grant parish to properly protect black citizens at the colfax courthouse.178 for this, he read section 6 and 7 of the enforcement act to require an allegation or showing that the state was the offender or that it had attempted to deprive citizens of their fundamental rights without due process or equal protection of the laws.179 sections 6 and 7 of the act, however, contained neither a state action requirement nor a due process or equal protection predicate. senator pool, the author of section 6 and his supporters, were clear that section 6 was aimed at conduct by individuals where the state, for whatever reason, was unwilling or unable to act. they understood at the time they debated the enforcement acts of 1870 and 1871 that certain parts of the south were characterized by widespread violence against freedmen.180 as said by senator pool during the debates, without rebuttal, these sections were aimed at conduct by individuals where the state, by acts of omission or neglect, failed to protect its citizens.181 as to the fourth count, bradley cited the equal protection clause of the fourteenth amendment but concluded that the count did not allege an equal protection violation.182 instead, bradley said, the indictment plainly referred to rights secured by cra of 1866, which, as he stated earlier, required an allegation that the alleged conspiracy was a product of the race of the injured parties.183 in his words, the racial predicate “ought not to have been left to inference; it should have been alleged.”184 but bradley was not required to determine whether race was a casual factor in the indicted crimes.185 the indictment was founded on 178 lane, supra note 144, at 85-86. 179 cruikshank, 25 f. cas. at 715. 180 see discussion of the enforcement act of 1871, supra p. 8. 181 42nd cong., 1st sess. app., supra note 77. 182 cruikshank, 25 f. cas. at 715. 183 id. 184 id. 185 id. at 708, 715. no. 10:2] defying congressional intent 115 sections 6 and 7 of the enforcement act of 1870, neither of which required a showing or proof that the conduct at issue occurred because of race.186 he also said the count was defective on account of vagueness and generality, a claim he also used to dismiss the fifth and eight counts of the indictment.187 turning to the sixth count, justice bradley seized the opportunity to give his views on the constitutionality of section 6 of the enforcement act of 1870. this count charged the defendants with of conspiracy to prevent and hinder certain black citizens of the united states from exercising their right to vote at any election to be held thereafter in louisiana or grant parish.188 bradley acknowledged that this count was grounded in section 6 of the act, which used identical language.189 but bradley said the application of these sections had to be read in connection with the first section of the act.190 he then asserted that “[t]he law [a reference to section 6 of the enforcement act] on which this count [six] is founded is not confined to cases of race discrimination… .”191 rather, …[i]t is general and universal in its application.”192 as such, he said, the count (six) was not encompassed by “any valid and constitutional law of the united states.”193 in other words, sec. 6 of the act as written was unconstitutional because it was not directed at race or other characteristics.194 thus, bradley completely ignored the framer’s’ assertion that the enforcement acts of 1870 and 1871 were authorized and 186 id. at 708; appendix. 187 id. at 715. 188 united states v. cruikshank, 25 f. cas. at 715. 189 id. 190 id. 191 id. 192 id. 193 id. 194 cruikshank, 25 f. cas. at 715. as to the seventh count, an allegation to injure or oppress black citizens because they had exercised their right to vote, bradley dismissed this count on the same grounds as he dismissed count six. id. 116 columbia journal of race and law [vol. 10:2 permitted under section 5 of the fourteenth amendment.195 in a befuddling end to his dismissal of count six, bradley implied that had the count alleged race as a causal factor, it would have had a constitutional basis.196 further, bradley’s dismissal of the sixth (and seventh) counts disregarded the plain language of the statute and drew unjustified inferences from its structure. section 1 of the enforcement act of 1870 was merely a broad statement of the right of qualified citizens to vote in any election without distinction as to race.197 accordingly, the proscribed acts and the described criminal penalties set forth in section 6 and section 7 applied to all persons and to all citizens irrespective of their race.198 section 6 of the act was specifically directed at punishment of acts of violence, threats of violence, and intimidation toward “any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the united states, or “because of” his having exercised the same …” (emphasis added).199 accordingly, there was no basis for bradley’s assertion that any of the indictments were defective because they did not allege race as a “because of” or casual factor. instead, section 6 was a plain and unambiguous presentation of senator pool’s purpose as expressed during the debates, i.e., to protect all persons from acts of violence and intimidation in circumstances where the state failed or was unable to provide the needed protection and response. the only predicate to invoking section 6 of the act was a showing that the affected citizens had 195 see smith, supra note 76. 196 cruikshank, 25 f. cas. at 715. again, an allegation of race in the sixth count would not have changed the absence of a required racial predicate in sec. 6. 197 see infra appendix for language of the first section of the enforcement act of 1870. 198 see infra appendix for the language of section 6 and 7 of the enforcement act of 1870. 199 see infra appendix for the language of section 6. no. 10:2] defying congressional intent 117 exercised or had attempted to exercise a federal right.200 the facts in cruikshank (which bradley failed to describe) provided this predicate.201 his assertion that the sixth count of the indictment should have alleged race as a causal factor had no statutory foundation. his dismissal of the seventh count because the indictment failed to attribute the conduct at issue to race was similarly without foundation. having erroneously required a racial predicate for counts six, and seven, bradley was able to view the crimes committed as “ordinary.” there was nothing ordinary, however, about the mass murder of black citizens who had surrendered to white mob rule only to be subsequently murdered while in the custody of the white mob. nor was there anything ordinary about the collapse of state government, particularly in grant parish where, at the time of the murders, government was non-existent. also, bradley could have noted, which he did not, that mr. nash, who led the colfax attacks, was the elected deputy sheriff of grant parish, and that james w. hadnot, one of the other participants and a leader in the mob attacks, was the elected state representative from colfax. although their elections were contested, both mr. nash and mr. hadnot may have been, at the time of the attacks, state actors. accordingly, bradley could have found that the failure of nash and hadnot to grant any due process or equal protection to those murdered by the mob implicated the state. because the indictment, however, did not allege that the state was the offender, bradley likely would have dismissed any allegation regarding nash and hadnot as missing a necessary element. bradley would have been wrong in this respect for the reasons set forth by senator pool, representative jeremiah wilson, and others. bradley’s failure in cruikshank to acknowledge, let alone to give weight to, congressional intent regarding section 6, and 200 there is no doubt, however, that the framers, in drafting the enforcement acts, had in mind the growing violence in the south directed at the black community. see foner, supra note 65, at 184–85, 195. 201 lane, supra note 144, at 90–107. 118 columbia journal of race and law [vol. 10:2 to apply its plain language to the colfax massacre facts is incomprehensible. because of the split circuit court opinion, the matter was certified to the supreme court.202 writing for the court (which included bradley), chief justice waite began his discussion by noting, as did bradley below, that the counts in the indictment were based upon section 6 of the enforcement act of 1870.203 following his full quotation of section 6, waite started his discussion with counts one, two, and three.204 as to count one, waite asserted that the right to peaceably assemble for a lawful purpose predated the fourteenth amendment, and, for this reason, protection of this right resided with the states, just as it always had.205 the right to assemble and to petition congress, however, was a right of national citizenship.206 according to waite, had the indictment in count one alleged a conspiracy to prevent a meeting for such a purpose (to petition congress), then and only then would the indictment have been “within the statute” (section 6 of the enforcement act).207 but that is not what section 6 said (and still says). section 6, as noted earlier, protected “the free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the united states.”208 (emphasis added.) it follows, from the quoted language, that the first amendment in its entirety was protected by section 6, not just the phrase after the last comma in the amendment. further, waite’s discussion in count one ignored the framers’ intent to incorporate the first amendment (and the other first eight amendments) into the panoply of rights enforceable by the federal government against the states. 202 united states v. cruickshank, 92 u.s. 542, 546 (1875). 203 id. 204 id. at 551–554. 205 id. at 552 206 id. at 552–553. 207 id. 208 see infra appendix for the language of section 6. no. 10:2] defying congressional intent 119 waite dismissed count two, which concerned the right to bear arms, because as with count one, the right in question was left to the states to protect.209 waite thus dismissed counts one and two on grounds similar to bradley’s dismissal. bradley, however, had at least noted that the indictment failed to allege that the state had abridged any privilege or immunity of its citizens protected by the fourteenth amendment, acknowledging that the fourteenth amendment, but for an alleged pleading error, could have been relevant.210 waite took no notice of the fourteenth amendment, and thereby closed off any foreseeable future claim that the first amendment was incorporated into the fourteenth. in dismissing these counts, waite, like bradley, also ignored the principles of state neglect or omission laid down by representative wilson, senator pool, and others, a principle applicable when, as here, by doing nothing and failing to act, the state had not protected these rights. as to count three, waite implied that the indictment was nothing more than a charge of murder and false imprisonment which were matters for the state, not the united states.211 these reasons mirrored those stated by bradley. again, waite made no mention of the underlying facts, nor did he give any indication that he was aware of the framers’ intent as to section 6 of the enforcement act. also, waite, like bradley, failed to acknowledge that nash and hadnot, leaders of the mob that committed the massacre at colfax, were arguably state actors.212 as to counts four, six, and seven, waite dismissed them under bradley’s rationale that the indictment in these counts did not allege race as a causal factor.213 significantly, however, waite did not declare, as bradley did, that section 6 of the enforcement act of 1870 was not supported by the constitution.214 thus, section 6 209 cruickshank, 92 u.s. at 553. 210 united states v. cruikshank, 25 f. cas. at 715. 211 cruickshank, 92 u.s. at 553–554. 212 see supra discussion at p. 18. 213 cruickshank, 92 u.s at 554–57. 214 id. at 554–56. 120 columbia journal of race and law [vol. 10:2 survived, barely, and later survived several cuts to other provisions of the enforcement act of 1870.215 waite left counts five and eight to the end of his discussion, dismissing both, as had bradley, as vague and general.216 unlike bradley, however, he expounded at length on the requirements of criminal pleading, concluding that the indictment as to these counts was not sufficient in law because it lacked certainty and precision as to the particulars of the offenses.217 c. assessing the fallout from cruikshank cruikshank’s immediate effect on the prosecutor, james beckwith, was embarrassment and concern for future prosecutions.218 federal prosecutors, for example, would now have understood that nothing in bradley’s or waite’s cruikshank opinions reversed justice miller’s narrowing of the privileges and immunities clause of the fourteenth amendment and the limited role he assigned to the federal government.219 regarding the first amendment, prosecutors and the general public might have thought that bradley’s dissent in slaughter-house and his cruickshank circuit court opinion kept alive, slightly, a possible opening for incorporation of at least a portion of the bill of rights into the amendment. waite’s opinion, however, ended any hope in this respect. there is no way to calculate the societal harm of waite’s first amendment discussion. freedmen or any other group, especially in the south, who assembled for a lawful purpose were left without federal protection and subject to the vagaries of local authorities. bradley’s truncated concept of the state effectively gutted section 6 of the act. in insisting that congress had limited the 215 supra note 75, it is currently codified at 18 u.s.c. § 241. 216 u.s. v. cruickshank, 92 u.s. at 559. 217 id. at 557-59. 218 lane, supra note 145, at 222–23. 219 at least one historian argues that slaughter-house rendered the fourteenth amendment’s privileges and immunities clause almost meaningless. see foner, supra note 3 at 171. no. 10:2] defying congressional intent 121 fourteenth amendment to purely corrective action for “obnoxious law,” bradley left no room for senator pool’s fourteenth amendment enforcement vision. he offered no sign in cruikshank that he understood section 6 of the enforcement act to be aimed at individual conduct—conduct often facilitated by state failure or unwillingness to secure, and thus deny, full enjoyment of rights by all citizens.220 waite only partially rescued section 6 from bradley’s false understanding. though he did not go so far as to declare section 6 of the act as unconstitutional, he did not commit himself one way or the other on this question. prosecutors might have presumed that section 6 had survived, but it would have been clear that it survived in abridged form. this is so because waite continued to insist that claims under the act required a racial predicate. in addition, at no point in his opinion did waite suggest that state neglect or omission could be grounds for affirming the indictment. it follows that so far as the fourteenth amendment was concerned, federal prosecutors could assume that they were left with only equal protection or due process claims under the fourteenth amendment. this is right where miller had left it. according to one source, after waite’s opinion was issued and during the next two republican administrations, 1876 through 1884, federal prosecutors brought 974 enforcement act cases in the south but prevailed on only 167 of them.221 d. “running the slavery argument into the ground”222 220 early in bradley’s opinion, however, he said that section 6 applied to all citizens and protected any right or privilege granted or secured by the constitution. united states v. cruikshank, 25 f.cas. at 709. bradley’s full opinion makes clear that his initial acknowledgement of the intent of sec. 6 was not the basis of his later conclusions. 221 lane, supra note 144, at 252. it is unclear if these figures include guilty pleas. nevertheless, this is about a seventeen percent conviction rate compared with the rate today of close to ninety percent. 222 the civil rights cases, 109 u.s. 3, 24 (1883). 122 columbia journal of race and law [vol. 10:2 several black plaintiffs, in different parts of the country, challenged their denial of accommodations at a hotel, a theater, an opera house, and a railroad car under the civil rights act of 1875 (“cra of 1875”).223 under this act, businesses that catered to the general public could not discriminate on account of race in providing facilities and accommodations.224 their cases were consolidated and became the civil rights cases.225 at issue was the constitutionality of the first two sections of the act. section 1 declared that all citizens, without regard to race, color, or previous condition of servitude, were entitled to full and equal enjoyment of various public facilities such as inns, theaters, public conveyances, and other places of public amusement. section 2 stated that any person who violated section 1, except for reasons applicable to every citizen, would be subject to fine or imprisonment. by now the composition of the supreme court had changed with justice john marshall harlan replacing justice david davis.226 bradley writing for the majority, found that sections 1 and 2 of the cra of 1875 were unconstitutional on the ground that these sections were not directed at correcting state legislation.227 justice harlan was the lone dissenter. bradley reiterated the position he had adopted in cruikshank on the meaning and application of the fourteenth amendment. according to bradley, the amendment was directed at “state action of a particular character,” not the wrongful acts of an individual.228 congress could only enforce the fourteenth amendment by adopting corrective legislation to undo the effects of state laws that impaired rights protected by the amendment.229 he directed readers to cruikshank for a fuller discussion of his 223 see infra appendix for text of the cra of 1875. 224 see infra appendix for section 1 of the cra of 1875. 225 the civil rights cases, 109 u.s. at 3. 226 russel w. galloway, justice for all? the rich and poor in supreme court history, 1790–1990 71 (1991). 227 the civil rights cases, 109 u.s at 13, 19. 228 id. at 11. 229 id. no. 10:2] defying congressional intent 123 understanding of the amendment.230 also, said bradley, one who suffered harm caused by an individual acting without state sanction or state action must vindicate his or her rights through the laws of the state.231 as before, bradley’s limited understanding of state action left no room for senator pool’s incorporation of state inaction as grounds for prosecution.232 bradley then found that the first two sections of the civil rights act of 1875 were not corrective of state laws nor did they target adverse state legislation; instead they were primary and direct in the sense that they took control of public accommodation questions leaving no room for state legislation.233 as such, they were beyond the authority given to congress under the fourteenth amendment and, accordingly, were void.234 again, bradley failed to give effect to the scope of federal authority under section 5 of the fourteenth amendment as defined by senators howard, pool, and other congressional leaders.235 justice harlan’s dissent took issue with bradley’s 230 id. at 12. 231 id. at 17. 232 for example, public officials with knowledge of but ignoring the widespread refusal of individual restaurant owners to serve black customers would fall within the language of section 6 of the enforcement act of 1870. enforcement act of 1870, §6, 16 stat. 140 (1870) ("that if two or more persons shall band or conspire together... or upon the premises of another... threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the united states... shall be held guilty of [a] felony."). 233 the civil rights cases, 109 u.s at 19. 234 id. 235 bradley noted that the commerce clause gave congress direct and plenary authority to legislate, a circumstance that he claimed did not apply to the fourteenth amendment. id. at 18. bradley’s assertion supports a recent observation of foner that congress, in passing the civil rights act of 1964, anchored the law on the commerce clause rather than the more logical fourteenth amendment. to have done otherwise, according to foner, would have required the supreme court to have disavowed the opinions of bradley (and others) on the enforcement scope of the amendment. see foner, supra note 3, at 172. 124 columbia journal of race and law [vol. 10:2 understanding of enforcement under the amendment. in harlan’s view, the power of congress under the amendment was not restricted to correcting obnoxious state laws. rather, section 5 of the amendment, in express terms, gave congress the authority to enforce, either through affirmative or prohibitory legislation, all the provisions of the amendment.236 section 5, according to harlan, gave congress authority to blunt not only the effect of state legislation hostile to the citizens’ fundamental rights, but also to combat the hostility of corporations and individuals to such rights.237 further, and in accord with prior understandings of rights created by the federal government, citizenship for freedmen was a new constitutional right and as such, the federal government had primary and direct enforcement authority over this new right.238 harlan’s understanding in this respect was consistent with the intent of the fourteenth amendment’s framers.239 harlan also discussed state regulatory roles in licensing public conveyances, theaters, inns, and places of amusement. in a lengthy examination of each of these arenas of public operation, he pointed out that all of them operated in the public interest (railroads, for example, provided public transportation) and were heavily regulated.240 inns (although not private boarding houses) and places of amusement were similarly licensed and regulated by the states either under long-held common law principles or by statute. as such their legal right to operate came from the public, which included all citizens.241 because of this publicly-granted right, the regulated entity became infused with a duty to serve all members of the public without discrimination.242 operators of railway companies, inns, and places of amusement thus became agents of the state, 236 the civil rights cases, 109 u.s. at 46. 237 id. at 54. 238 id. at 54-56. 239 see supra pp. 5-6. 240 the civil rights cases, 109 u.s. at 37–42. 241 id. 242 id. no. 10:2] defying congressional intent 125 and, in harlan’s view, citing munn v. illinois,243 their acts of discrimination were adverse state action within the meaning of the fourteenth amendment.244 finally, harlan took issue with bradley’s views on race discrimination.245 bradley had said earlier in his opinion that not every act of discrimination involved the federal government or the recently passed amendments.246 to suggest otherwise, he said, would run the slavery argument into the ground.247 bradley then opined, in a burst of dicta, that at some point after emerging from slavery, having the aid of legislation, a man must take the rank of a mere citizen and cease to be the “special favorite of the laws ….”248 he concluded that “[m]ere discriminations on account of race or color were not regarded as badges of slavery.”249 harlan agreed with bradley that the government had no interest in regulating social intercourse.250 whether one person chooses to have social interaction with another person was not a governmental concern. but harlan distinguished these rights from the rights at issue. civil rights were not the same as social rights.251 according to harlan, the rights protected by the act of 1875 were civil rights only,252 the same category of rights protected by the cra of 1866, and the same rights deemed fundamental and under the protection of the fourteenth 243 munn v. illinois, 94 u.s 113 (1877). 244 the civil rights cases, 109 u.s. at 37, 58–59 (“property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. when, therefore, one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created”) (internal citations omitted). id. at 43. 245 id. at 26. 246 id. 247 id. at 24. 248 id. at 25. 249 id. 250 the civil rights cases, 109 u.s. at 59. 251 id. 252 id. 126 columbia journal of race and law [vol. 10:2 amendment.253 further, harlan said it was unfair to claim that the recently freed “colored race” was seeking special favors under the law.254 instead, in his view, “[w]hat the nation, through congress, has sought to accomplish in reference to that race is, what had already been done in every state in the union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more.”255 not until over eighty years later did congress apply a fix to the outcome of the civil rights cases.256 while bradley’s views may have been popular at the time in the north and south, during the intervening years they exerted a coercive and dehumanizing effect on the daily lives of back people in south. following the civil rights cases, operators of inns, theaters, amusement parks, and other facilities open to the public were given free reign, at least from the federal government at this time, to discriminate as they pleased against blacks. miller’s narrow rendering of the privileges and immunities clause, bradley’s narrow understanding and application of the fourteenth amendment to state laws repugnant to the amendment, and now bradley’s declaration that the civil rights act of 1875 was unconstitutional, left the black community with little room to maneuver in their fight for equal standing with the white community. the situation worsened in the following cases. iv. the fuller court’s further erosion of congressional intent in the thirteen years since slaughter-house, the application of the privileges and immunities clause of the fourteenth amendment remained with the limits assigned by miller. he had solidified the states as the principal, if not the only, 253 39th cong. 1st sess., supra note 2, at 2765 (1866). 254 the civil rights cases, 109 u.s. at 61. 255 id. 256 see the civil rights act of 1964 (codified as amended in scattered sections of 42 u.s.c.). no. 10:2] defying congressional intent 127 enforcers of fundamental rights and the rights set forth in the first eight amendments. further, in the years since cruikshank, section 6 of the enforcement act of 1870 remained where bradley and waite had dropped it. as such, the framers’ concept of circumventing states that deprived and denied fourteenth amendment rights was filtered through a state action requirement. this result has continued to the present.257 the waite court had substantially squandered the framers’ goal of a fairer america. where the conduct at issue was committed by a private individual or groups of private individuals without the presence of a state actor, the inaction of the state left the victims of terror and violence to the states for recourse. the flourishing of lynching in the early part of the twentieth century would seem to be a prime example of the deficiency of this regime. the fuller court, however, would add another dimension to the unchecked racial horrors in the south with the development of the “separate but equal” doctrine, a principle that became embedded and notorious in many, if not most, southern civic, educational, and economic institutions for the next few decades, if not longer.258 this doctrine obscured the language and thus the intent of the fourteenth amendment’s equal protection clause. according to the fuller court, direct state action to separate the races under separate but equal principles did not violate the amendment. a. riding in comfort in 1890, the louisiana legislature mandated that all railroad companies carrying passengers in louisiana provide separate (but allegedly equal) coach cars for blacks and whites.259 nurses attending children of another race were exempt. writing for the eight to one majority in what assuredly is the most infamous of the reconstruction cases, plessy v. ferguson, justice brown began his discussion of the fourteenth amendment by noting: 257 foner, supra note 65, at 172–173. 258 id. at 160. 259 for an interesting discussion of the principal actors in plessy, see louis menand, in the eye of the law, the new yorker, feb. 4, 2019, at 18. 128 columbia journal of race and law [vol. 10:2 the object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.260 as to the facts, brown noted that the louisiana law in question pertained to intrastate commerce only.261 as such, the only question before the court was whether the statute was a reasonable regulation.262 according to brown, the reasonableness of state police power was entitled to wide latitude and was to be measured against the customs, usages, and traditions of the people, consistent with the goal of promoting “public peace and good order.”263 with this test at hand, and without further discussion of the customs, usages, and traditions of the people, brown concluded that the louisiana statute did not deprive the “colored man” of equal protection under the fourteenth amendment.264 justice brown adopted justice miller’s slaughter-house construction of citizenship and privileges and immunities to determine the amendment’s scope.265 miller, it will be recalled, said citizenship consisted of separate united states citizenship and state citizenship. from this, miller had reasoned, without citation to any congressional authority, there also existed separate and distinct privileges and immunities for citizens of the united states and for citizens of a state.266 the fourteenth amendment, according to brown, prohibited states from enacting hostile legislation that interfered with the privileges and immunities granted by united states citizenship.267 this formulation, first by miller and now brown, however, meant little to the everyday lives of black people because by now, thanks to miller, there was little in the 260 plessy v. ferguson, u.s 537, 544 (1896). 261 id. at 546. 262 id. at 550. 263 id. 264 id. at 550-51. 265 id. at 543. 266 see supra pp. 89-90. 267 plessy, 163 u.s. at 543. no. 10:2] defying congressional intent 129 way of privileges and immunities of citizens of the united states to protect. further, by inference, justice brown left the protection of so-called state privileges and immunities to the states with no role for the federal government. justice brown’s notion of bundling purely social activities, like choosing dinner companions, with the freedom of blacks to enjoy inns and theaters on the same terms as whites, mirrored those of justice bradley. access by all races to theaters, inns, and other public places, however, fit within the notion of enjoyment of freedom and life identified by senator howard, representative stevens and other framers as one of the fourteenth amendment’s privileges and immunities.268 brown attempted to justify his opinion near the end by asserting: legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. if the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. if one race be inferior to the other socially, the constitution of the united states cannot put them upon the same plane.269 justice harlan, as most know, was the lone dissenter in plessy. principal among his arguments, harlan noted, as he did in the civil rights cases, that railroads were heavily regulated by the state and, as such, were infused with a public purpose and interest. it was impermissible, he argued, for a public authority to know or consider the race of those otherwise entitled to its benefits.270 he also attacked the claim that the statute in question did not have a discriminatory purpose. according to harlan, the statute, under the guise of providing equal treatment to both blacks 268 see supra pp. 82, 84. 269 plessy, 163 u.s. at 551-52. 270 id. at 553-54. 130 columbia journal of race and law [vol. 10:2 and whites, was simply a state legislative measure to exclude blacks from railroad coaches occupied by whites.271 thus, the statute was state action of the purest sort, action that had a discriminatory purpose that fell squarely within the ambit of rev. stat. § 1979 (formally section 2 of the cra of 1866) and the framers’ intent under the fourteenth amendment. finally, in his lengthy dissent, he noted toward the end that “the thin disguise of ‘equal’ accommodations for passengers in railroad coaches would not mislead anyone, nor atone for the wrong this day done.”272 b. further setback the erosion of the framers’ intent did not end with plessy. in october 1903, the grand jury for the eastern district of arkansas indicted twelve white men for enforcement act violations in what ultimately became hodges v. united states.273 the indictments were based on the undisputed facts of a practice at the time known as “whitecapping.”274 the hodges indictment alleged that about fifteen white men armed with guns attacked a group of black men who had been newly hired at a sawmill in poinsett county, arkansas.275 the purpose of the attack, as alleged in the indictment, was to coerce the owner of the mill to fire the mill’s black workers and to coerce the black workers to leave the premises.276 the mill owner sought help from the local justice of the peace who, instead of assisting the owner, joined ranks with 271 id. at 557. 272 id. at 562. 273 203 u.s. 1 (1906, overruled by jones v. alfred h. mayer co., 392 u.s 409, 411 (1968)). 274 whitecapping describes a racial motivated effort, usually accompanied by violence or threats of violence, by white agrarian workers to drive blacks from employment or from tenant farmer status. 275 hodges, 203 u.s. at 2–4. 276 id. at 3-4. no. 10:2] defying congressional intent 131 the defendants and, apparently, adopted their goals.277 the mill owner gave in to the mob’s demands.278 the indictment alleged that the defendants violated rev. stat. section 1977 (1874) (formerly part of section 1 of the civil rights act of 1866), and rev. stat. section 5508 (1874) (formerly section 6 of the enforcement act of 1870)279. the defendants filed a demurrer to the indictment, contending that the offenses under sections 1977 and 5508 were not federal claims and were triable only in state court.280 the district court of the united states for the eastern district of arkansas (judge trieber), dismissed the demurrer and, following a trial the jury convicted three of the defendants.281 on a writ of error to the supreme court, justice brewer, writing for the seven to two majority, concluded that the matters alleged were not within the jurisdiction of the united states.282 brewer reversed the lower court ruling and remanded the case with instructions to sustain the demurrer.283 his began his opinion, after quoting §§ 1977 and 5508, by asserting that the fourteenth and fifteenth amendments were restrictions on state action and, because no action on the part of the state was alleged, these statutes were not applicable to the charges contained in the indictment.284 in other words, according to brewer, the fourteenth (and fifteenth) amendment were restrictions on state action.285 accordingly, these statutes were not justified by either amendment.286 brewer then devoted most of opinion to the thirteenth amendment and the government argument 277 martha r. mahoney, what’s left of solidarity? reflections on law, race, and labor history, 57 buff. l. rev. 1515, 1524–25 (2009). 278 id. at 1525. 279 hodges, 203 u.s. at 4. 280 id. 281 id. 282 id. at 13, 20. 283 id. at 20. 284 id. at 14. 285 hodges, 203 u.s. at 14. 286 id. 132 columbia journal of race and law [vol. 10:2 that interference with the right to perform contracts, including contracts for labor, reduced the targets of the interference to a condition of slavery.287 in addressing this question, brewer said the thirteenth amendment provided relief from compulsory service of one to another and was not aimed at acts outside the strict definition of involuntary servitude.288 thus, impediments to the formation or completion of contracts were not encompassed by the thirteenth amendment.289 such incidents were a matter for state courts.290 brewer, like justices waite and bradley in cruickshank, displayed a remarkable misunderstanding of the fourteenth amendment and the reach of § 5508. brewer simply asserted, without any citation to the legislative history of the amendment or § 5508, that it was “beyond dispute” as had been “repeatedly held,” that the fourteenth amendment did not justify §§ 1977 and 5508.291 he made no attempt to flesh out the meaning of “state,” or state action. nor did he acknowledge the framer’s insistence that state inaction, in the form of depriving or denying the protection of the state, was a form of state action violative of the fourteenth amendment and actionable under §5508. the outcome of hodges was a major setback to the cause of equal rights.292 brewer had reinstated a damaging portion of bradley’s cruikshank circuit court opinion (but now as an opinion of the supreme court), thus crippling the ability of federal prosecutors to effectively reach the conduct of individuals under the fourteenth amendment.293 thereafter, the indispensable language of 287 id. at 16–20. 288 id. at 16–17. 289 id. at 17–18. 290 id. at 20. 291 hodges, 203 u.s. at 14. 292 see mahoney, supra note 277, for a fuller discussion of the impact of hodges on § 1799. 293 the court did not give full recognition to the scope of §5508 until united states v. price, 383 u.s. 787, 806 (1965) (“we conclude, therefore, that it is incumbent on us to read § 241 [the former § 5508 and sec. 6 of the no. 10:2] defying congressional intent 133 §§ 1977 and 5508, so carefully crafted by the framers, became mired in controversy.294 hodges was not overruled until sixty-two years later by jones v. alfred h. mayer co.295 v. conclusion historians assert that foundation and nourishment of jim crow came from many sources,296 but the supreme court, with its commanding authority, was a powerful facilitator and abettor of the despair that was to come. the outcomes of the cases discussed above thus fed the already shifting public and political narrative regarding the status and treatment of blacks in the post-civil war era. the will and vision of the framers was no match for the combined effect of these forces. the waite and fuller courts, by largely ignoring the intent of the framers, an intent informed by the post-war evidence of brutality toward black citizens, provided an almost worst-case scenario of outcomes for the cause of racial justice: a severely and unnecessarily restricted understanding of the privileges and immunities clause, a misreading and misapplication of sec. 6 of the enforcement act of 1870, a hostile reading of the term civil rights, and, apart from economic regulation, an unlimited interpretation of permissible state police power. further, by narrowly defining state action, the waite and fuller courts confined the fourteenth amendment’s reach to correction of state legislative enactments thought to have violated the amendment. thus, the plight of the black community was left for decades to the uncertainty of the undeveloped jurisprudence of equal protection and to the caprice of state courts. this outcome was tragic for the black community enforcement act of 1870] with full credit to its language.”); see also united states v. mosley, 238 u.s. 383, 386 (1915) (“it is not open to question that this statute [the former § 5508 and sec. 6 of the enforcement act] is constitutional …”). 294 byrd v. sexton, 277 f.2d 418, 429, n. 22 (8th cir. 1960). 295 hodges, 203 u.s. at 14. 296 foner, supra note 65, at xxi-xxiv. 134 columbia journal of race and law [vol. 10:2 and ultimately disabling for the rest of america. vi. appendix 1. relevant amendments to the constitution of the united states297: thirteenth amendment (passed by congress january 31, 1865, ratified december 6, 1865) section 1. neither slavery nor involuntary servitude, except as punishment for a crime whereof the party shall have been duly convicted, shall exist within the united states, or any place subject to their jurisdiction. section 2. congress shall have the power to enforce this article by appropriate legislation. fourteenth amendment (passed by congress june 13, 1866, ratified july 9, 1868) section 1. all persons born or naturalized in the united states, and subject to the jurisdiction thereof, are citizens of the united states and the state wherein they reside. no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. / / / section 5. the congress shall have the power to enforce, by appropriate legislation, the provisions of this article. 297 the constitution amendments 11-27, national archives no. 10:2] defying congressional intent 135 fifteenth amendment (passed by congress february 26, 1869, ratified february 3, 1870. section 1.the right of citizens of the united states to vote shall not be denied or abridged by the united states or by any state on account of race, color, or previous condition of servitude. section 2. the congress shall have the power to enforce this article by appropriate legislation. 2. relevant federal statutes: civil rights act of 1866298 chap. xxxi. –an act to protect all persons in the united states in their civil rights, and furnish the means of their vindication. be it enacted by the senate and house of representatives of the united states of america in congress assembled, that all persons born in the united states and not subject to any foreign power, excluding indians not taxed, are hereby declared to be citizens of the united states; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every state and territory in the united states, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and 298 act of april 9, 1866, c. 31, § 1, 14 stat. 27, reenacted by § 18 of the enforcement act of 1870, act of may 31, 1870, c. 114, § 18, 16 stat. 140, 144, and codified in §§ 1977 and 1978 of the revised statutes of 1874, now 42 u.s.c. §§ 1981 and 1982. 136 columbia journal of race and law [vol. 10:2 to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. sec. 2. and be it further enacted, that any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any state or territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. enforcement act of 1870 (effective may 30, 1870) be it enacted by the senate and house of representatives of the united states of america in congress assembled, that all citizens of the united states who are or shall be otherwise qualified by law to vote at any election by the people in any state, territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any state or territory, or by or under its authority, to the contrary notwithstanding. / / / / section 6. and be it further enacted, that if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free no. 10:2] defying congressional intent 137 exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the united states, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,—the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,—and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the constitution or laws of the united states. section 7.and be it further enacted, that if in the act of violating any provision in either of the two preceding sections, any other felony, crime, or misdemeanor shall be committed, the offender, on conviction of such violation of said sections, shall be punished for the same with such punishments as are attached to the said felonies, crimes, and misdemeanors by the laws of the state in which the offence may be committed. civil rights act of 1875 'section 1. that all persons within the jurisdiction of the united states shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. ' sec. 2. that any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall, also, for every such offense, be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not 138 columbia journal of race and law [vol. 10:2 less than $500 nor more than $1,000, or shall be imprisoned not less than 30 days nor more than one year: provided, that all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by state statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. but this provision shall not apply to criminal proceedings, either under this act or the criminal law of any state: and provided, further, that a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.' vol 2.1-final proof 2012 columbia journal of race and law 1 race as a legal concept justin desautels-stein* race is a legal concept, and like all legal concepts, it is a matrix of rules. although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. to be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little currency. the departure from this “classic liberal” conception of race, and its attendant and disturbing view of the function of race, did not, however, depart from the idea that race is a natural and organic part of being a human being. as this article argues, this seminal background rule—that race is natural, neutral, and necessary—is deeply problematic and a substantial obstacle in the fight against the supreme court’s ascending anticlassification jurisprudence. not to mention, it is also false. in an effort to make some headway against the idea that race is a natural idea, as opposed to a legal concept, the article attacks the background rules of race via the unlikely field of conflict of laws. taking the supreme court’s decision in parents involved in community schools v. seattle school district no. 1 as a benchmark, the discussion first suggests an early functionalist view of voluntary school integration by way of an analogy to the early twentieth-century transformations occurring in conflicts of laws. second, and in the alternative, the discussion then situates the facts of parents involved as literally a problem of conflict of laws. in both instances, the hope is to focus legal discourse on the background rules of race so as to empower a new and emancipatory anti-subordination jurisprudence. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! *! associate professor, university of colorado law school. i received helpful comments from kristen carpenter, ming chen, neil gotanda, matthew hughey, sarah krakoff, ralf michaels, helen norton, and participants at “classcrits iv: criminalizing inequality” held at washington college of law at american university. jena akin and shannon avery rollert provided excellent research assistance. special thanks to adrienne davis, dwight mullen, and ed katz.! race as a legal concept vol. 2:1 2 i. introduction................................................................................................................3 ii. from classic liberalism to racial liberalism.............................................12 a. the racial contract.........................................................................................................12 b. the invention of race as a justification for subordination............................................16 iii. the function of the human races: an abridged intellectual history in the science of race............................................................................17 a. monogenism, 1680–1850...................................................................................................17 b. polygenism, 1815–1860......................................................................................................21 c. evolution and eugenics, 1860–1945.................................................................................23 d. ethnicity vs. race, 1935–1980...........................................................................................27 e. the biological foundation of race is fiction.................................................................29 iv. neoliberalism and post-racial colorblindness......................................30 a. the classic liberal style: from slave law to jim crow.................................................34 b. the modern liberal style: from brown to affirmative action.......................................38 c. the neoliberal style: the road to parents involved.......................................................41 d. neoliberalism and neoracism..........................................................................................50 v. towards a critique of race as a legal concept: two ideas from conflict of laws............................................................................................................55 a. a functionalist rendering of parents involved................................................................57 1. the realist critique of formalism and the rise of functionalism............................57 2. what is the function of race as a legal concept?.....................................................60 (i) step one: choose an interpretive method............................................................61 (ii) step two: foreground neoracism and the racial contract.................................62 (iii) step three: identify the function of race............................................................62 (iv) step four: decide..................................................................................................62 b. conflict of laws as “cultural conflict”.............................................................................62 1. why conflict of laws?..................................................................................................63 2. thinking sideways about race and culture................................................................64 (i) step one: identify the jurisdictional (cultural) conflict.......................................65 2012 columbia journal of race and law 3 (ii) step two: characterization of the claim...............................................................68 (iii) step three: identify the rules..............................................................................69 (iv) step four: identify the interests............................................................................71 (v) step five: decide....................................................................................................71 vi. conclusion........................................................................................................................73 all in all, race is the modern west’s worst idea. – richard king1 i. introduction in the eighteenth and nineteenth centuries, a biological construction of race was created as a way of justifying the oppression of non-europeans.2 not only was the notion of the “human races” a lie, it was an imperialist fiction intended to rationalize a system of domination and subordination.3 american courts have failed to account for the deeply transformed connections between biology and imperialism, despite the fact that these connections have been well-developed in the social sciences and critical race theory.4 since its birth, our legal system has constructed race through the use of biology5—a use !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 richard king, race, culture, and the intellectuals, 1940–1970 1 (2004). 2 “though it would be foolish to suggest that evil, brutality, and terror commence with the arrival of scientific racism toward the end of the eighteenth century, it would also be wrong to overlook the significance of that moment as a break point in the development of modern thinking about humanity and its nature.” paul gilroy, between camps 31 (2004). see also antonia darder & rodolfo d. torres, after race (2004). 3 howard winant, the world is a ghetto: race and democracy since world war ii 22–23 (2001); gilroy, supra note 2. for discussion of the so-called “racial realists” who do not see it this way, and the view that racial domination is a relic, see michael k. brown et al., whitewashing race: the myth of a color-blind society 1–33 (2004). 4 for a sample of the literature on critical race theory, see derrick bell, races at the bottom of the well: the permanence of racism (1993); critical race theory: the key writings that formed the movement (kimberlé w. crenshaw et al. eds., 1995); angela onwuachi-willig, celebrating critical race theory at 20, 94 iowa l. rev. 1497 (2009); ian f. haney lópez, “a nation of minorities”: race, ethnicity, and reactionary colorblindness, 59 stan. l. rev. 985 (2007); athena d. mutua, the rise, development, and future directions of critical race theory and related scholarship, 84 denv. u. l. rev. 329 (2006). 5 see, e.g., akins v. state of tex., 325 u.s. 398, 404 (1945) (“defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried.”) (emphasis added); malhotra v. cotter & co., 885 f.2d 1305, 1308 (7th cir. 1989) (“title vii groups discrimination on grounds of race with discrimination on grounds of color; although indians are caucasians, they are generally of darker skin color than ‘white’ americans.”); ripp v. dobbs houses, inc., 366 f. supp. 205, 209 (n.d. ala. 1973) (concluding that a white citizen has no standing to represent a class of black citizens in challenging employment practices discriminatory only towards black citizens); united states v. driver, 755 f. supp. 885, 888 (d.s.d. 1991) (holding that the evidence was insufficient to show that the individual was an indian because he only had 7/32 indian blood and did not receive assistance based on indian blood in his childhood); saad v. burns int’l sec. serv., inc., 456 f. supp. 33, 37 (d.d.c. 1978) (discussing that race equated to skin color and that a plaintiff of arabian descent is allowed to bring a section 1981 complaint as long as alleged discrimination is on the basis of race or color). for a discussion of courts’ reliance on a concept of race requiring objective characteristics, see ortiz v. bank of am., 547 f. supp. 550, 560–63 (e.d. cal. 1982) (“it has been suggested . . . the plaintiff must meet the burden of proving ‘racial animus’ [for the purposes of a section 1981 claim] as the motivating factor of the discrimination or of some ‘objective’ display of the plaintiff’s “racial background.”) (emphasis race as a legal concept vol. 2:1 4 informed by what david hollinger calls the “ethno-racial pentagon.”6 according to this very old and completely fabricated view, there are five primordial human races, and a person’s belonging to one of these races is natural and unavoidable.7 race is ancestry, blood, and genes.8 there are two ideas here, and they are linked. the first idea is political: the very notion of a biological thing called “race” was initially developed as a way for some people to justify the subordination of other people. the second idea is legal: this new invention was imported into the american legal system as a “background rule,”9 meaning that the very idea of race as a legal concept was constituted by a view of human biology. taken together, we can understand the confluence of these two ideas as resulting in a legal concept that functioned to assist in the sustained oppression of the newly minted, disfavored races. this is a classic liberal style of framing race as a legal concept.10 in traditional accounts of our racial jurisprudence, the blatant racism of the eighteenth and nineteenth centuries gradually gave way to a more enlightened view of race—a view of race that was to triumph after world war ii, brown v. board of education, and the civil rights movement in the united states.11 a pivotal shift involved an insight about biology, namely, that it was immoral to make judgments any longer about the worth of a person on the basis of his or her race.12 where in classic !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! added). see also perkins v. lake cnty. dep’t of utils., 860 f. supp. 1262, 1271–78 (n.d. ohio 1994) (canvassing the treatment of discrimination claims in courts, variously relying on skin color, genetic makeup, biological descent, and general physical characteristics). 6 david a. hollinger, postethnic america: beyond multiculturalism (1995). 7 the pentagon includes: euro american (white), asian american, african american, hispanic, and indigenous. id. at 23. 8 see colorline, infra note 68. 9 this article takes notice of but does not move deeply into the literature on constitutive and regulative rules. for example, the market’s background rules of property and contract may very well be “constitutive” in the sense used by writers like john ruggie. following john searle, ruggie explains that regulative rules are rules that take as a given the existence of some prior activity and seek to control that activity. traffic rules are examples of regulative rules insofar as the decision to force drivers on to the right side of the road has little to do with the existence of the prior and predicate activity of driving. in contrast, the rules of chess are constitutive in that we cannot know the game of chess—there is no antecedent activity—without first knowing the rules of the game. as ruggie says, “[c]onstitutive rules define the set of practices that make up any particular consciously organized social activity—that is to say, they specify what counts as that activity.” john gerard ruggie, constructing the world polity: essays on international institutionalization 22 (1998). in this light, property and contract rules do appear to be constitutive in ruggie’s sense, since we cannot know the nature of liberalism’s market game without property and contract rules. in contrast, antitrust laws cannot be constitutive, since they do, as a matter of definition, respond to an antecedent activity, namely, the competitive market. for discussion of constitutive and regulative rules, see john r. searle, the construction of social reality (1995); christopher cherry, regulative rules and constitutive rules, 23 phil. q. 301 (1973); john rawls, two concepts of rules, 64 phil. rev. 3 (1955). 10 the classic liberal style is discussed infra section iv.a. 11 see generally hugh davis graham, the civil rights era: origins and development of national policy, 1960–1972 (1990); john hope franklin & alfred a. moss, from slavery to freedom: a history of negro americans (1988). 12 see, e.g., rice v. cayetano, 528 u.s. 495, 517 (2000) (“one of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”). justice scalia provided a good statement of the idea in city of richmond v. j.a. croson co., 488 u.s. 469, 520–21 (1989): “the difficulty of overcoming the effects of past discrimination is nothing 2012 columbia journal of race and law 5 liberalism it was desirable to arrange social relationships on the basis of biological categories (e.g. slavery, “separate but equal”), the new view was “colorblind.”13 as justice harlan famously argued in his dissenting opinion in plessy v. ferguson, “our constitution is colorblind, and neither knows nor tolerates classes among citizens. in respect of civil rights, all citizens are equal before the law. the humblest is the peer of the most powerful.”14 the colorblind approach to racial justice was therefore initially situated as a progressive attack on the old racism, denouncing any efforts to deduce a person’s value from their race. colorblindness did not, as a consequence, eliminate the old background rules of race; racial identity continued to be seen as natural, objective, and rooted in human biology. rather, it reduced the importance and altered the nature of the background rules. in other words, while at one time a legal dispute could be resolved merely by identifying a person with a particular racial identity (i.e. if you are negro, you can be enslaved; if you are white, you can attend a certain school), in this later period the background rules of race as a legal concept were retained but hollowed out (i.e. if you are negro, we cannot make any deductive judgments about your place in the social order simply on the basis of your race). this is a modern liberal style of framing race as a legal concept.15 race law in the united states bore witness to a third phase, during which we are apparently now living. once again, civil rights law would retain the background rules of race, first articulated as a justification for systemic subordination. like in the enlightened phase of modern liberalism, this third phase also adopted a colorblind approach to the background rules. thus, the true nature of racial identity continued to be understood as a natural and objective matter of human biology, but now a biology free of any discernable political content. what distinguished this phase from its predecessor was its approach to what can be termed the “foreground rules” of race. foreground rules are those rules believed to be responsive to a pre-existing activity; they regulate, manage, and control. the suite of civil rights statutes that developed in the second half of the twentieth century is a good example of the kind of foregrounded regulation embraced in modern liberalism. in contrast, this current phase is notoriously hostile to the use of foreground rules, claiming that racial dynamics in the united states have progressed to the point where much of equal protection jurisprudence is actually fostering racial discrimination instead of remedying it. it is in this !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! compared with the difficulty of eradicating from our society the source of those effects, which is the tendency—fatal to a nation such as ours—to classify and judge men and women on the basis of their country of origin or the color of their skin. a solution to the first problem that aggravates the second is no solution at all.” 13 the critique of colorblindness is fundamental in the literature on critical race theory. see, e.g., neil gotanda, a critique of “our constitution is color-blind,” 44 stan. l. rev. 2, 2 (1991) (“though aspects of color-blind constitutionalism can be traced to pre-civil war debates, the modern concept developed after the passage of the thirteenth, fourteenth, and fifteenth amendments, and it matured in 1955, in brown v. board of education. a color-blind interpretation of the constitution legitimates and thereby maintains the social, economic, and political advantages that whites hold over other americans.”); gary peller, race consciousness, 1990 duke l.j. 758, 760 (1990) (“i want to explore the ideological roots of this particular moment—in which the repudiation of race consciousness defines conventional civil rights thinking . . . . my argument, in summary form, is that the boundaries of today’s dominant rhetoric about race were set in the late 1960s and early 1970s, in the context of an intense cultural clash between black nationalists on one side, and integrationists (white and black) on the other. current mainstream race reform discourse reflects the resolution of that conflict through a tacit, enlightened consensus that integrationism—understood as the replacement of prejudice and discrimination with reason and neutrality—is the proper way to conceive racial justice, and that the price of the national commitment to suppress white supremacists would be the rejection of race-consciousness among african americans.”). 14 plessy v. ferguson, 163 u.s. 537, 559 (1896). 15 the modern liberal style is discussed infra section iv.b. race as a legal concept vol. 2:1 6 sense that this most recent phase is post-racial.16 this also indicates a shift in what it means to be in favor of colorblindness: while it used to be a tactic to be deployed in favor of a disadvantaged group, any use of racial classifications is now to be seen as a threat to the background rules of race. because the legal conception of race continues to be constructed out of an idea about human biology, the post-racial view of colorblindness makes the claim that because race is a natural, pre-political sphere of human identity, it is wrong for the state to make regulations on the basis of racial identity.17 at the same time, courts have not wished to appear oblivious to debates over identity politics and group difference, and what emerged was an allowable recognition of “difference” when the word “culture”18 or “ethnicity”19 replaced “race.”20 thus, where “racial balance” is understood today by the supreme court as a very dangerous !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16 see, e.g., sumi cho, post-racialism, 94 iowa l. rev. 1589 (2009). 17 this is a framing familiar to the context of liberal political theory. my discussion of liberalism follows a conventional breakdown into a classic, modern, and neoliberal periodization. classic liberalism was especially popular during the nineteenth and early twentieth centuries, and modern liberalism ascended the throne around world war ii. for discussion, see eric hobsbawm, the age of empire, 1875–1914 (1987); eric hobsbawm, the age of extremes: the short twentieth century, 1914–1991 (1994). for a discussion of neoliberalism, see daniel yergin & joseph stanislaw, the commanding heights: the battle for the world economy (2002); david harvey, a brief history of neoliberalism (2007). this treatment of liberalism does not, however, track the manner in which liberalism is sometimes discussed in the context of race. for example, one textbook on discrimination law in the united states describes “classical-liberal thinking on civil rights as: ‘highly normative and rightsbased in nature but cautiously incremental in scope and ambition [which] criticizes supreme court opinions, decries our recent inattention to the plight of women and persons of color, and urges a renewed commitment to racial injustice. it accepts the dominant paradigm of civil rights scholarship and activism, and urges that we work harder—litigate more furiously, press for new legislation, exhort each other more fervently than before—within that paradigm.’” roy l. brooks, gilbert paul carrasco & michael selmi, the law of discrimination: cases and perspectives 11 (2011) (quoting richard delgado, enormous anomaly? left-right parallels in recent writing about race, 91 colum. l. rev. 1547, 1547–48 (1991)). in terms of my usage, this is much more akin to modern liberalism than classic liberalism. see justin desautels-stein, the market as a legal concept, 60 buff. l. rev. 387 (2012). 18 as stephen steinberg wrote more than thirty years ago, the problem with multiculturalism is that the basic idea is “built upon systematic inequalities that constituted an untenable basis for long-term ethnic preservation. this was the pitfall—the fatal flaw—that robbed ethnic pluralism of its cultural innocence. . . . in short, a pluralism based on systematic inequalities is inherently unstable because ethnic groups at or near the bottom of the social ladder have little reason to endorse the ethnic status quo.” stephen steinberg, the ethnic myth: race, ethnicity, and class in america 254–56 (3d ed. 2001). paul gilroy has similarly argued: “an even blend of those deceptively bland terms ‘ethnicity’ and ‘culture’ has emerged as the main element in the discourse of differentiation that is struggling to supersede crude appeals to ‘race’ by asserting the power of tribal affiliations. these timely notions circulate in more specialized language, but any sense that they bring greater precision into the task of social division is misleading. the cultural approach still runs the risk of naturalizing and normalizing hatred and brutality by presenting them as inevitable consequences of illegitimate groups that wiser, worldlier, more authentically colonial government would have kept apart or left to meet only in the marketplace.” gilroy, supra note 2, at 27. for defenses of multiculturalism, see charles taylor, multiculturalism and “the politics of recognition”: an essay (2d. ed. 1992) and the rights of minority cultures (will kymlicka ed., 1995); stephen may, multiculturalism, in a companion to racial and ethnic studies 124 (david theo goldberg & john solomos eds., 2002). 19 for discussions on the relationship between the terms race and ethnicity, see werner sollors, foreward: theories of american ethnicity, in theories of ethnicity: a classical reader (1996); michael omi & howard winant, racial formation in the united states: from the 1960s to the 1990s (2d ed. 1994). a famous example of the idea that ethnicities are cultural groupings and therefore distinguishable from the immutable character of racial groupings is found in pierre l.van den berghe, race and racism: a comparative perspective 9–11 (1967). 20 in legal theory, see lópez, supra note 4, at 990 (“placing developments in equal protection law in the larger context of evolving racial ideas, my primary aim in this article is to demonstrate that race-as-ethnicity provided the first 2012 columbia journal of race and law 7 concept, “cultural diversity” is one of the only meaningful interests the court has stamped with its imprimatur in the context of affirmative action cases (along with remedying past intentional discrimination).21 this is a neoliberal style of framing race as a legal concept.22 the legal conception of race that emerged in the context of american slavery, the legal conception of race that developed in the early twentieth century as a reaction against the classic racism of jim crow, and the legal conception of race that has taken shape in the debates over post-racialism and cultural diversity at the turn of the twenty-first century, all share a commitment to a view of race as an aspect of human biology. consequently, all three legal conceptions—the classic, modern, and neoliberal—have a constitutive background rule in common. all three legal conceptions are buoyed by an attachment to a biological concept of race—a concept that may be seen as one of modern science’s very first weapons of mass destruction.23 the aim of the article is to offer some practical suggestions for how to move civil rights law away from the biological foundations upon which the court’s post-racialism and cultural pluralism depend, and it uses parents involved in community schools v. seattle school district no. 124 as an illustration—a case that the late derrick bell has described as “the latest, and perhaps most devastating, obstacle in the two-century struggle of african americans to obtain effective public schooling for their children.”25 of course, there is good reason to be pessimistic about the likelihood of such a shift away from the background rules of biological identity upon which the legal conception of race has for so long been !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! coherent intellectual justification for reactionary colorblindness.”). in social theory, see étienne balibar, is there a neoracism?, in race, nation, class 17 (étienne balibar & immanuel wallerstein eds., 1991); martin baker, the new racism (1981); miles & brown, supra note 20. 21 parents involved in cmty. schs. v. seattle sch. dist. no. 1, 551 u.s. 701, 721–22 (2007) (“[i]t suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. the first is the compelling interest of remedying the effects of past intentional discrimination. . . . the second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education . . . .”). in a recent article, reva siegel has argued that the old divide between anti-classification and anti-subordination, or in other words, the divide between proponents of a conservative colorblind approach and proponents of a liberal, race-conscious approach, does not adequately capture the facts. for siegel, an analytically distinct principle can be found in the work of moderates like justice kennedy, and it involves a concern with social cohesion. referring to the idea as an anti-balkanization principle, seigel suggests that social cohesion is a concept that avoids the split between individual and group dynamics. to the extent this can be understood as an argument for racial arguments that elide the liberal framework that i am using here, i remain skeptical, but i admittedly do not directly deal with the question. see reva b. siegel, from colorblindness to antibalkanization: an emerging ground of decision in race equality cases, 120 yale l.j. 1278 (2011). 22 the neoliberal style is discussed infra section iv.c. 23 today, scientists agree that while the old race science was surely wrong, there appear on the horizon glimpses of a re-emerging racial biologism. more than a decade ago, paul gilroy was already calling for a move beyond neoracism, pointing to a “rebirth of biologism” where “social and cultural differences are being coded according to the rules of biological discourse, but it cannot be emphasized enough that this latest raciological regime differs from its predecessors.” gilroy, supra note 2, at 34. see also alex m. johnson jr., the re-emergence of race as a biological category: the societal implications—reaffirmation of race, 94 iowa l. rev. 1547, 1582 (2009). 24 parents involved, 551 u.s. at 701. 25 derrick bell, race, racism, and american law 81–82 (2008). of course, bell wrote this before the supreme court’s decision in ricci v. destefano, 557 u.s. 557 (2009), which may have now taken the cake. for a discussion of ricci, see michelle adams, is integration a discriminatory purpose?, 96 iowa l. rev. 837 (2011). race as a legal concept vol. 2:1 8 defined. how can it be imagined that the court is ready to make such an ideological about-face? perhaps even worse, is it even practical to imagine race as a legal concept that isn’t biologically founded?26 how could standing for racial discrimination claims work, for example, if a court was prohibited from making assumptions about the viability of “blackness”?27 if race were no longer conceived in terms of ancestry, how would the court know when a claimant had been discriminated against on the basis of his or her race, which wasn’t actually a matter of their genes after all?28 as donna young has put it: “[t]he u.s. model [of anti-discrimination law] has been built upon a foundation that on the one hand requires racial categories in order to determine citizenship rights . . . but on the other, cannot define these categories without resorting to methods that reinforce racial hierarchy.”29 to be sure, these are tough questions, and instead of trying to answer them, the strategy here is to reject them. after all, each of these questions is premised on a very common but very wrong assumption about the pre-legal nature of racial identity. as this article argues, race is, at best, “relatively autonomous”30 from law, and in no way should race be seen as existing independently of law. this view !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 26 for discussion of the tactics that courts have used to get around the often murky territory of phenotypical assessments of racial identity, see ariela j. gross, what blood won’t tell: a history of race on trial in america (2008). 27 for a discussion of how racial identity came to be associated with standing, see, e.g., e. christi cunningham, the rise of identity politics i: the myth of the protected class in title vii disparate treatment cases, 30 conn. l. rev. 441 (1998). 28 for a relatively recent example of the sorts of judicial gymnastics that are involved, see malone v. civil serv. comm’n, 646 n.e. 2d 150 (mass. app. ct. 1995). the malones, who were twin brothers, applied for firefighter positions with the boston fire department (bfd) in 1975. in their initial application, they submitted “white” as their racial classification, but failed to get hired. two years later, the malones reapplied again after the bfd instituted a courtordered affirmative action program. on their second try, however, the malone brothers stated in their applications that they were black, and successfully got the jobs. in 1987, the malones sought promotion, and in the process, a supervisor noticed that these apparently white guys had stated in their applications that they were black. the malones were subsequently fired by the department of personnel administration for having lied on their applications, but the brothers fought back. taking the fire department to court, the malones argued that their employers had no business inquiring into the validity of their own self-identified racial identities. in order to figure out the racial identity of the malones, the supreme judicial court accepted the three-part test used by the department of personnel administration: “(1) by visual observation of their features; (2) by appropriate documentary evidence, such as birth certificates, establishing black ancestry; or (3) by evidence that they or their families hold themselves out to be black and are considered to be black in the community.” due to the fact that the malones satisfied none of these tests, i.e. they had fair hair and skin, and ostensibly caucasian features, had documentary evidence of three generations of malones identifying themselves as whites, and no community evidence whatsoever, the court opted for a strategy that held out race to be, in part, a biological category subject to objective assessments, and more particularly, that the malones belonged to something called the white race. the appeals court further rejected any possibility of appealing the case. 29 donna young, defining race through law: enforcing the social norms of power and privilege, 72 alb. l. rev. 1041, 1041–42 (2009). 30 the debate over the autonomy of the legal order has a long pedigree. after marx, a serious effort to understand the social nature of law was attempted by weber, who believed that a unique quality of classic liberalism was its ability to develop a legal mode of thought that was autonomous from other forms of social thought. the autonomy of the legal system served economic needs, since autonomy brought with it a sense of predictability. max weber, economy and society: an outline of interpretive sociology 941–54 (2d ed. 1968). legal autonomy also served political needs, as locke had also argued: in order for government to be legitimate, executive and judicial authority needed to exist independently of individual caprice. for an excellent discussion, see david trubek, complexity and contradiction in the legal order: balbus and the challenge of critical social thought about law, 11 law & soc’y rev. 529 (1977); isaac balbus, commodity form and legal form: an essay on the “relative autonomy” of law, 11 law & soc’y rev. 571 (1977). 2012 columbia journal of race and law 9 of the constitutive relation between race and law is alien to liberalism, including the neoliberal style of race jurisprudence. from the neoliberal point of view, human races, like economic markets, are pre-legal and have the best chance of flourishing when free of regulation altogether. as chief justice roberts stated in parents involved, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”31 it is in this light that foreground rules—the rules that wrought the shift from classic liberalism to modern liberalism—actually become discriminatory. the strategy of this article is to reject this perspective on the relationship between law and race—a perspective that holds that law is merely a means for regulating a pre-legal entity—and assert that race is itself a legal concept.32 on this view, law does not only regulate race; it constitutes race. 33 looking to race as a legal concept highlights how the traditional view cloaks notions of race in a naturalized and objectified set of assumptions about the limits of legal reform. after all, if race were a natural thing, then one would naturally assume that certain decisions about the legal treatment of race would be more or less consistent with the natural parameters of racial identity. however, if we let go of the notion that there is anything “natural” about racial identity at all, jurists are empowered with a great deal of discretion to use the tools of legal discourse—the plurality of legal reasoning—in whatever way they like. once we are forced to confront the legality of those spaces previously thought natural and neutral, we also receive, as duncan kennedy has explained, the “taking back of alienated powers that can be used [in service of] . . . equality, community, and wild risky play. but they are powers whose ethical exercise starts from accepting the existential dilemmas of undecidability that legal discourse has . . . staunchly denied.”34 as all lawyers know, we are often handed a conclusion and assigned the task of marshaling the best argument on behalf of that conclusion. indeed, the conclusions hardly matter: it is a matter of course to find ourselves on opposite sides of a question, and a clear indication of a successful lawyer is that she can, at will, provide dazzling arguments both in favor of and against a given legal conclusion (that is not clearly subject to precedent or rule). consequently, once attention is drawn to race as a legal concept (a set of legal arguments),35 and away from a racial concept that is naturalized and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 31 parents involved, 551 u.s. at 748. 32 this follows the analytical framework established in the market as a legal concept. see desautels-stein, supra note 17. 33 if law not only regulates race but constitutes it as well, we can see how easily justice roberts’ thinking about racial discrimination dissolves into nonsense. as an example, imagine saying that the best way to further tort reform was to simply stop regulating torts, just as justice roberts suggests that the way to stop racial discrimination is to stop using law as a means for classifying people on the basis of race. in such a view, the reformer would have us believe that “torts” are just a part of the world, a part of modern life, and if we just stopped regulating them, liabilities, compensation awards, and attorney’s fees would eventually sort themselves out. notice, however, that the argument here is not to abolish the legal concept of a tort; it is rather to de-regulate torts. but, of course, the very notion of de-regulating torts is incoherent, since we all know that torts do not somehow exist independently of the legal system, as if they could somehow be de-regulated or “self-regulating.” torts are constituted through law, and because a tort is a legal concept, the central choice in tort reform is not about whether to regulate or not, it’s about which sorts of legal rules we prefer over other legal rules. in exactly the same way, race is also constituted through law, and as a consequence, it makes no sense to understand the basic problem of civil rights law as a determination of the proper scope of state regulation. the very notion of racial identity is always already legalized; racial identity is a set of rules, just like a tort or a contract. 34 duncan kennedy, two globalizations of law & legal thought: 1850–1968, 36 suffolk u. l. rev. 631, 679 (2003). 35 see, e.g., duncan kennedy, a semiotics of legal argument, 42 syracuse l. rev. 75 (1991). race as a legal concept vol. 2:1 10 objectified (a set of conclusions),36 it becomes rather natural to analyze that concept in a fashion that is at once subversive and also consistent with the richest of traditions in american legal thought.37 in the early decades of the twentieth century, a great number of private law concepts transitioned away from objective, formal, natural foundations and towards an emerging realism and sociological jurisprudence.38 whatever we ultimately think of the outcome of this period in our jurisprudence, a “functionalist” perspective on legal concepts became commonplace.39 it is in this light that this article argues for a similar rethinking of race as a legal concept—a concept that might substantially benefit from a deliverance from its biological beginnings and an encounter with early twentieth-century realist jurisprudence. in order to focus on race as a legal concept in the way that i am suggesting, and distance our jurisprudence from a notion of race as a natural and immutable quality of human identity, there are several analogues in the private law with which to work. in the present discussion, i have chosen the field of conflict of laws.40 conflicts is a good candidate because it experienced precisely the type of transition that i am suggesting here for race. at the hands of legal realists like walter wheeler cook, conflict of laws went through the intellectual grinder, ripped out of its formalistic foundations and pushed through a newly minted functionalist jurisprudence—a jurisprudence which taught judges to ask !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 36 see, e.g., duncan kennedy, a semiotics of critique, 22 cardozo l. rev. 1147 (2001). 37 for a sample of legal realist works and secondary discussions, see robert l. hale, coercion and distribution in a supposedly non-coercive state, 38 pol. sci. q. 470 (1923); morris cohen, property and sovereignty, 13 cornell l.q. 8, 27 (1927); morris cohen, the basis of contract, 46 harv. l. rev. 553 (1933). for discussions of hale and cohen, see barbara fried, the progressive assault on laissez faire (1998); neil duxbury, robert hale and the economy of legal force, 53 modern l. rev. 421 (1990); joseph singer, legal realism now: 1927–1960, 76 cal. l. rev. 465 (1988); warren samuels, the economy as a system of power and its legal bases: the legal economics of robert lee hale, 27 u. miami l. rev. 261 (1973). some of hale’s particularly well known other writings include freedom through law (1952); bargaining, duress, and economic liberty, 43 colum. l. rev. 603 (1943); force and the state: a comparison of “political” and “economic” compulsion, 35 colum. l. rev. 149 (1935). 38 see, e.g., felix cohen, transcendental nonsense and the functional approach, 35 colum. l. rev. 809 (1935); morton horwitz, the transformation of american law, 1780–1860 (1977); the canon of american legal thought (david kennedy & william w. fisher iii eds., 2006). as for sociological jurisprudence, classic works include roscoe pound, the scope and purpose of sociological jurisprudence, 24 harv. l. rev. 591 (1911), and hans morgenthau, positivism, functionalism, and international law, 34 am. j. int’l l. 260 (1940). 39 to take a rather random example, consider the supreme court’s 2008 decision in medellín v. texas, 552 u.s. 491 (2008), dealing with the relation between the united states judiciary and the international court of justice’s avena decision, as well as a subsequent executive order from president george w. bush seeking to implement that decision. in making an argument that might be called functionalist, justice stephen breyer suggested that in contrast to justice roberts’ chimerical focus on formal rules, breyer’s claim was that the “case . . . law suggests practical, context-specific criteria” that should be used to help a court decide whether a treaty was self-executing. id. at 548. breyer’s approach demanded answers to a series of fact-based questions, such as the purpose of the treaty, its historical and political context, and whether the treaty seemed more or less focused on judicial application or not. breyer recognized that these sorts of questions did not yield “a simple test, let alone a magical formula.” id. at 550. but given the actual and realistic unavailability of a meaningful textual approach like roberts’, breyer argued that a judicial focus on the function of the treaty, as opposed to its form, is all a court can really ever hope to do. 40 for a recent survey of the field, see colloquy, transdisciplinary conflict of laws, 71 law & contemp. probs. 1 (2008). 2012 columbia journal of race and law 11 what social needs and governmental interests would be served when deciding to allocate jurisdictional authority to one location or another.41 in the effort to make practical suggestions for affecting a de-naturalized race jurisprudence, this article pushes on conflict of laws in two ways: (1) by analogizing race to conflict of laws, and (2) by analyzing race as literally a problem of conflict of laws. on the one hand, this article will reimagine the supreme court’s decision in parents involved in light of early twentieth-century functionalism. race will be analyzed as a legal concept that has been the object of a long-standing social purpose, the legitimation of the subordination of certain groups of human beings at the expense of other groups. instead of serving that purpose, a progressive functionalism might interpret race as a legal concept that might undermine rather than entrench that subordination. in making this argument, the discussion establishes conflict of laws as a useful analogy for understanding how a term like “jurisdiction” transitioned out of a naturalized jurisprudence and into a functionalist one. on the other hand, this article will also give parents involved a very preliminary treatment as a conflict of laws problem, in a literal as opposed to an analogical sense. this will involve thinking about the dispute in the case as a dispute between cultural communities, and a conflict of various legal regimes—local government law, property law, tort law, and more. the purpose of the analysis is not, however, to argue that parents involved is best understood as a private law dispute rather than one sounding in public law. it is instead to highlight the creative possibilities for an effective anti-subordination jurisprudence in a context where the court is not shackled by a presumption about which kinds of social needs, like diversity, are the trumps. so there’s the argument. here’s the roadmap. part ii introduces charles mills’ theory of the racial contract. the racial contract is a useful intellectual construct for anchoring the important fact that human civilization since the beginnings of classic liberal political philosophy has been racially structured. part iii provides an abridged intellectual history of race science. the reason for having this history in mind is this: if the racial contract exposes a structure of racial domination, an acquaintance with race science instructs us to understand the scientific creation of race as an attempt to satisfy a dire social need, namely, the need to understand (in the context of an emerging enlightenment) why it was acceptable for certain groups of people to oppress other groups of people. the invention of the idea of race helped answer this question, since it was increasingly (and wrongly) apparent that some peoples were objectively and scientifically superior to other peoples. this could be determined by methodological examination of the new “human races.” part iv shifts from race as a biological concept to race as a legal concept, and brings focus to how courts adopted the scientific development of “race” as a background rule for race as a legal concept. the discussion shows how in classic liberalism, modern liberalism, and neoliberalism, courts have always retained a biologically anchored background rule for structuring race as a legal concept. part v begins the crucial work of trying to think of race as a legal concept that is not constituted by a biological background rule. it does so by introducing conflict of laws as a vehicle for re-thinking parents involved in a way that takes seriously the racial contract and its pseudo-scientific rationales. the decision is approached from two angles, and in the first conflicts is used analogically !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 41 at the same time, conflicts seems like an awful place to look for guidance in bringing attention to race as a legal concept. as is famous within the field itself, conflict of laws is a self-identified mess of intellectual postures and purposes. despite this mess, or rather, perhaps because of it, some scholars have begun to wonder whether what appears to be so messy is actually a sign of something quite important. in a recent article looking at how conflict of laws might provide insights as to how to break the current deadlock in the debate over feminism and multiculturalism, karen knop, ralf michaels, and annelise riles argue that hidden in the apparently disparate and highly technical threads of conflicts jurisprudence are remarkably useful tools for dealing with cultural disputes. karen knop, ralf michaels & annelise riles, after multiculturalism: feminism, culture, and the surprising attraction of a conflict of laws approach, 64 stan. l. rev. 589 (2012). for a wonderful discussion of walter wheeler cook and his critique of conflict of laws, see john henry schlegel, american legal realism and empirical social science (1995). race as a legal concept vol. 2:1 12 through a recollection of the legal realist critique of joseph beale in the early twentieth century. in this first rethink, parents involved is pushed through the sort of progressive functionalism that at the time dominated conflicts and so many other fields of private law. in the second rethink, instead of using conflicts as an analogy, the dispute in parents involved is situated literally as a problem of conflict of laws. ii. from classic liberalism to racial liberalism a. the racial contract classic liberal political theory has instructed its listeners for close to half a millennium on the paramount place of equality and freedom in the construction of the state.42 in one of the most famous versions of this teaching, we were told to imagine a world in which life was so horrible that it was necessary for its inhabitants to leave that world, renouncing the natural freedoms they enjoyed there in order to gain an artificial freedom in political society.43 in choosing to exit that natural world and enter a political one, these people engaged in a sort of contract whereby they agreed to constrain their natural rights in exchange for a political authority capable of maintaining order.44 the question that has plagued this theory of the “social contract” from the very beginning has been: who were and are the parties to this contract? after all, the contract’s imagined terms were clear: all subjects of the new political authority were regarded as morally autonomous, free and equal, rights-bearing human beings. but, who was really in, and who was out?45 strangely, the answer has at once always seemed very clear and very murky. on the one hand, the answer has been: “everyone is in! all members in the political community share these rights, and even further, classic liberal ideas should be understood as supporting a basic theory of human rights!”46 according to this view, if society failed to provide all of its members with the benefits of the social contract, it was due to weakness and derivation. on the other hand, there is the long-standing view that full political membership was always already restricted, from the beginning, and that weakness and derivation had little to do with it. referring to seventeenth-century british north america, the historian !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 42 the literature on liberalism is massive. for illustrative texts, see pierre manent, an intellectual history of liberalism (1996); roberto mangabeira unger, knowledge and politics (1975). 43 see, e.g., thomas hobbes, leviathan (1651). for an interesting discussion of leviathan as an origin story, see joanne wright, origin stories in political thought (2004). 44 in addition to hobbes, among the most famous examples are john locke, a second treatise on government (1689); immanuel kant, theory and practice, in practical philosophy (1793); john rawls, a theory of justice (1971). 45 on the topic of the proper bounds of political community from a liberal perspective, see will kymlicka, contemporary political philosophy (1990); arash abizadeh, does liberal democracy presuppose a cultural nation? four arguments, 96 am. poli. sci. r. 495 (2002). for philosophical accounts with a focus on race, see thomas mccarthy, race, empire, and the idea of human development (2009); charles mills, multiculturalism as/and/or anti-racism?, in multiculturalism and political theory 89 (anthony simon laden & david owen eds., 2007); lucius t. outlaw jr., on race and philosophy, in racism and philosophy 50 (susan e. babbitt & sue campbell eds., 1999). 46 as housed, for example, in the declaration of the rights of man and of the citizen (déclaration des droits de l’homme et du citoyen) (fr. 1789), available at http://avalon.law.yale.edu/18th_century/rightsof.asp. for theories of rights, see ronald dworkin, taking rights seriously (1978); john finnis, natural law and natural rights (1980); duncan kennedy, a critique of adjudication (1997). 2012 columbia journal of race and law 13 barbara fields has said, “whatever truths may have appeared to have been self-evident in those days, neither an inalienable right to life and liberty nor the founding of government on the consent of the governed was among them.”47 similarly, the philosopher charles mills has suggested that the genocidal terrors of the last 500 years cannot be conceived as a string of deviant exceptions to social contract theory.48 according to mills, the social contract has always been a contract intended to benefit one group at the expense of another group.49 enter mills’ theory of the “racial contract.”50 unlike the social contract, mills suggests that the racial contract was far more “real” than its more popular alter ego, though to be clear, he does not believe the racial contract to have ever been a literal thing.51 indeed, just as it is rare to think about the social contract as an actual event, there is no need to think about the racial contract in that respect either. nevertheless, in terms of the reality of the racial contract, it is real to the extent that it serves as an illumination of the social realities of mass oppression obscured by the apparent egalitarianism of the social contract.52 mills theorizes the racial contract as an abstraction capable of making sense of the classic liberal conundrum of being an imperialist ideology of equal rights. comprised of a set of agreements among european persons (males), enjoying “personhood” in the classic liberal sense described above, the racial contract constructed non-europeans as inferior and subordinate to full persons (europeans)—those persons that lived under the auspices of the social contract in political society and endowed with constitutional rights. different sets of rules were therefore understood to govern relations between full members of society as well as relations between the full members and the subordinated members— moral, political, legal, social, and economic. “[t]he general purpose of the contract is always the differential privileging of [europeans] as a group with respect to the [non-europeans] as a group, the exploitation of their bodies, land, and resources, and the denial of socioeconomic opportunities to them. all [europeans] are beneficiaries of the contract, though some . . . are not signatories to it.”53 unlike the social contract, in which consent is understood as a critical element in the transition from natural to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 47 barbara fields, slavery, race, and ideology in the united states of america, 1 new left rev. 95, 102 (1990). 48 charles wade mills, the racial contract 81–89 (1997) [hereinafter racial contract]. for more samples of mills’ work, see charles wade mills, from class to race (2003) [hereinafter from class to race]; charles w. mills & carole pateman, contract and domination (2007). 49 i do not mean to imply that there was any single group of europeans at issue here. as the history of race science itself demonstrates, divisions between european groups were just as common as divisions between europeans and others. as charles gallagher has rightly said: “missing from the common-sense understanding of white is how an amalgamation of diverse and warring populations from what is now europe came to see themselves and their own selfinterests as whites, place themselves at the top of this hierarchy, and impose a system of racial stratification on rest of the world.” charles gallagher, white, in handbook on the sociology of racial and ethnic relations 9, 10 (hernán vera & joe r. feagin eds., 2007). 50 for discussion, see racial liberalism and the politics of urban america (curtis stokes & theresa meléndez eds., 2003). 51 racial contract, supra note 48, at 9–11. 52 from class to race, supra note 48, at 219–28. 53 racial contract, supra note 48, at 11. race as a legal concept vol. 2:1 14 political society, the racial contract could not depend on the consent of its subordinated objects. this contract was expressly coercive.54 coupling the racial contract with the social contract adds further color to classic liberal abstractions about the shift from “natural person” to “citizen.” first, modern political society turns out to be far less egalitarian that we’d like to think—in fact, it is classically hierarchical. at the top are society’s full members and the rules fit for rights-bearing individuals. below them, still physically present in this new political world, are the subordinated members. this stratification of membership may exist at the level of the city, state, or globe, because, unlike the received wisdom that the social contract only works in the context of the sovereign state (i.e., political society ends at the boundaries of the leviathan’s territorial authority), the racial contract is worldwide: its terms govern the relation between the colonizing center and the subjugated colony, and ultimately, the rest of the “uncivilized” world.55 in other words, where the social contract suggested the wholesale transition of all members from one kind of society to another, the racial contract clarifies that the essential demarcation was not the one drawn between a political and pre-political sphere, but rather the very real one drawn between certain humans capable of entering the political, and consequently becoming rights-bearing citizens, and those humans still in the state of nature, and therefore not rights-bearing citizens. crucially, however, these subordinated non-europeans do not retain natural rights, either; they enjoy neither the sovereign right of self-determination common to the natural state, nor the newly-minted public power of political society. the racial contract robs them of both.56 if we look to locke in particular, we find a classic liberal argument for the moral justification of the social contract, and a second way in which the racial contract underwrites the plausibility of the classic liberal model. for locke, humans in the natural condition enjoyed a larger specificity of rights than they did in hobbes’ version of the state of nature, which was essentially limited to an all-powerful right of survival.57 before politics, locke believed, human beings enjoyed property rights, freedom of contract, the creation of currency, and participated in commercial transactions.58 these rights, and the use of these rights in the context of a market system, were reflections of an ultimate and objective morality. of course, locke continued to extend the liberal attack on aristotelian teleology: human beings did not have particular functions, but instead had the completely free and equal right to decide for themselves what they might become. nevertheless, the moral content of these rights gave clear instructions for how to enter political society: constitutional government was necessary to enable and guarantee the effective enjoyment of individual rights.59 this was a moral task, and to the extent !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 54 id. at 11–12. 55 id. at 12–13. 56 id. at 13. 57 see, e.g., locke, supra note 44; bertrand russell, a history of western philosophy (1967); manent, supra note 42. 58 locke, supra note 44, at 18–30. 59 see, e.g., c.b. macpherson, a political theory of possessive individualism 210. “locke can assume that neither money nor contracts owe their validity to the state; they are an emanation of the natural purposes of men and owe their validity to man’s natural reason. it is, on this view, the postulated moral reasonableness of men by nature, not the authority of government, that establishes the conventional value of money and the obligation of commercial contracts. . . . but although the institutions of property that are established in the state of nature by the first kind of consent are morally valid, they are practically difficult to enforce in the state of nature. this difficulty of enforcement is the main reason locke finds for men…entering civil society.” 2012 columbia journal of race and law 15 government did not protect individual property rights, it was no government at all. the moral dimensions of the natural condition shape the normative contours of the political. again, the racial contract adds depth to the image. the moral duty of constitutional government to protect individual rights only extended to the beneficiaries of the racial contract, not to its subordinated objects. as anthony farley has suggested in this context, “[t]hose who want to possess must mark the others for dispossession. the haves must come together as one, as leviathan, because no one can rule another alone.”60 thus, the appropriate interpretation of locke’s classic liberalism is to situate it as an application to only europeans, or in some instances, only to certain kinds of europeans. importantly, locke’s articulation of a moral foundation, however, spread through both contracts; the racial contract had the sanction of providence in precisely the same fashion as the social contract.61 a third way in which the racial contract explains the lived experience of the social contract is epistemological.62 in the texts of its famous authors, there is the apparent sense that the terms of the social contract were universal. that is, one can read hobbes, locke and others and come away easily believing that classic liberalism was applicable to europeans and non-europeans alike, and that all human beings enjoyed natural rights and were essentially equal. according to mills, this is exactly what social contract theory is intended to convey; when europeans look at the world, they are meant to envision a political landscape of free and equal citizens in accordance with the natural rights everyone enjoyed in the natural condition.63 no doubt, however, europeans experienced a great deal of cognitive dissonance, since what they saw around them was certainly not the realization of a universalized and equally effective set of rights. the descriptive claim of equality was in stark tension with the descriptive counter-claim of inequality. thus, in light of the racial contract’s prescription that europeans could only recognize other europeans as “persons,” one has an agreement to misinterpret the world. one had to learn to see the world wrongly, but with the assurance that this set of mistaken perceptions would be validated by [european] epistemic authority, whether religious or secular.64 thus in effect, on matters related to race, the racial contract prescribes for its signatories an inverted epistemology, an epistemology of ignorance, a particular pattern of localized and global cognitive dysfunctions (which are psychologically and socially functional), producing the ironic outcome that [europeans] will in general be unable to understand the world they themselves have made . . . to a significant extent, then, [european] signatories will live in an invented delusional world, a racial fantasyland, a ‘consensual hallucination.’ . . . there will be white mythologies, invented orients, invented africas . . . with a correspondingly fabricated population, countries that never were—calibans and tontos, man fridays and sambos—but who attain a virtual reality through their existence in travelers’ tales, folk myth, popular and highbrow fiction, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 60 anthony paul farley, the colorline as capitalist accumulation, 56 buff. l. rev. 953, 953 (2008) [hereinafter colorline]. 61 racial contract, supra note 48, at 16–17. 62 id. at 17–19. 63 id. 64 id. at 18. race as a legal concept vol. 2:1 16 colonial reports, scholarly theory, hollywood cinema, living in the [european] imagination and determinedly imposed on their alarmed real-life counterparts.65 classic liberalism systemically produced a bizarre dislocation between the manner in which certain humans came to understand their world, and the hierarchical world in which they actually lived. mills suggests that the racial contract guaranteed this real world of inequality, but it is important to recognize that the racial contract itself went nowhere in resolving the discrepancy between (1) the notion of free and equal human beings, and (2) the notion that some humans were superior to other humans. like any contract, it simply set out the terms of this inequality; it did not attempt to justify those terms. b. the invention of race as a justification for subordination the racial contract is an elegant intellectual construct for dealing with the contradictory manner in which classic liberalism so murderously played itself out in contexts like colonialism and slavery. what it does not do, however, is assist us in thinking about a psychological dilemma imminent in the confluence of these two imaginaries: why was it that when liberal texts referred to all members of the human species as free and equally autonomous persons, this was systemically interpreted as only referring to certain members? or even worse, some might have wondered, might this interpretation have been wrong, or evil, and the conception of european superiority a mirage? could the racial contract have been a delusional hallucination, a fantasyland? if it is clear that the racial contract taught its parties to view the world in a certain way, it does not explain how they were able to do so. the problem was that the widespread slaughter and subjugation of different peoples by european populations needed to be rationalized.66 not only was this a period in which religious justifications were increasingly under assault, it was also a time when liberalism was ascending—the new creed of equality and freedom.67 if all people were equal, and deserved to be free, what justified the harsh inequalities of the racial contract? as anthony farley has suggested, the original moment of departure from the natural world was also a moment in which the members of the new society who would be ruled were distinguished from those who would rule it.68 if an answer was needed to justify the racial contract, in other words, if the human mind desired a rationale for just why it was that all human beings were not “full persons” after all, then the mark was the answer. those who were marked could not be parties to the contract, members of the new society. “the masters come together as one through the mark. . . . after the mark, we are white-over-black.”69 the mark would soon be named: race. between the late seventeenth century and the middle of the twentieth, the task of justifying the terms of the racial contract from the newly-minted perspective of the scientific method fell to the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 65 id. at 18–19. 66 winant, supra note 3, at 38–50. 67 see, e.g., manent, supra note 42; alisdair macintyre, after virtue (1981). though science became a predominant means for “racing” european domination, it would be a mistake to think that religion was out of the picture entirely. see, e.g., colin kidd, the forging of races (2006) (discussing the relationship between race and scripture in protestant europe). 68 colorline, supra note 60, at 953. 69 id. 2012 columbia journal of race and law 17 emerging disciplines of anthropology, ethnology, and later biology.70 the solution was the creation of “human races.” with this novel concept of human races in hand, an incredibly powerful and apparently objective justification for the conflict between the social contract and racial contract emerged: domination was legitimate, because certain “races” were superior to other “races.” the slaveholder, the capitalist, the colonialist, the classic liberal—they no longer needed to look for precarious support in religious texts or raw self-interest for discrimination. it could now be justified on a scientific basis, even in the midst of an emerging theory of human rights.71 the claim here is therefore that the idea of race was invented to satisfy a critical social need on the part of the oppressor class.72 as farley states, “the mark shows who is to own and who is to be owned.”73 europeans were increasingly violating liberal principles even as these principles were gaining acceptance, and the idea of race made that paradox not only palatable, but a prescription for better living. as fields suggested, “racial ideology supplied the means of explaining slavery to people whose terrain was a republic founded on radical doctrines of liberty and natural rights . . . race explained why some people could rightly be denied what others took for granted: namely, liberty, supposedly a selfevident gift of nature’s god.”74 sociologically, the oppressor class required a decent explanation for slaughter, and the scientific invention of the human races worked really well.75 it worked until the twentieth century, anyway. iii. the function of the human races: an abridged intellectual history in the science of race this part introduces a “functionalist” orientation for thinking about the concept of race, and relies on a very general view of functionalism as a perspective that seeks to give meaning to a particular !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 70 the account in this article is drawn primarily from miles & brown, supra note 20, at 39–50; nancy stepan, the idea of race in science (1982); ivan hannaford, race: the history of an idea in the west (1996); peter baum, the rise and fall of the caucasian race (2006); nell irvin painter, the history of white people (2010); george fredrickson, racism: a short history (2002); brendan o’flahtery & jill s. shapiro, apes, essences, and races: what natural scientists believed about human variation, 1700–1900, in race, liberalism, and economics 21 (david colander, robert e. prasch & falguni a. sheth eds., 2009); audrey smedley, race in north america (3d ed. 2007). 71 see frederickson, supra note 70, at 56 (“the scientific thought of the enlightenment was a precondition for the growth of a modern racism based on physical typology.”). see also miles & brown, supra note 20, at 39–44. 72 e. christi cunningham defines race “as a system that was designed to define and enforce artificial differences in order to justify the unequal distribution of societal energy, resources, spirit, and entitlement.” exit strategy for the race paradigm, 50 how. l.j. 755, 760 (2007). see also denise da silva, toward a global idea of race 94 (2007). for discussion of the active use of “racing,” see john a. powell, the racing of american society: race functioning as a verb before signifying a noun, 15 law & inequality 99 (1997). 73 colorline, supra note 60, at 954. 74 fields, supra note 47, at 114. though fields understood that the scientific construction of race was entirely wrong, as elaborated infra, she maintained that through “the ritual repetition of social behavior,” racial ideology was entirely “real.” id. at 113. 75 for a discussion of concepts of race that precede this period, see the origins of race in the west (miriam eliav-feldon et al. eds., 2009). race as a legal concept vol. 2:1 18 concept through an analysis of the social and political needs served by that concept.76 in contrast, one might consider a “formalist” perspective, which instructs one to understand a concept’s meaning in terms of what the concept actually is, in the abstract, rather than in light of the purposes that it might serve. thus, a functionalist perspective on race attempts to understand what social needs the invention of race was intended to satisfy. as outlined in the discussion below, the answer was bitter: the idea of race was invented as a way of easing the psychological burden of an oppressor class. one purpose for situating race in a functionalist perspective is to prepare the way for the legal discussion in parts iv and v. as will be argued, the biological concept of race advanced by the sciences has turned out to be a fiction. a formalistic jurisprudence wedded to such a biological concept is in trouble, since there is no immutable, genetically determinable thing as “race” to analyze formally. while constitutional law often suffers from precisely this sort of defect,77 other fields of law have been comfortable with functionalist approaches for close to a century. as is explained in part v, conflict of laws is among them. a. monogenism, 1680–1850 thirty years after the arrival of hobbes’ leviathan and just five years before locke wrote his second treatise, francois bernier published in 1684 the first of many attempts to classify people in terms of their physical differences.78 of course, thinkers since aristotle had suggested ways to typologize human beings. what distinguished bernier’s set of classifications was its focus on physically observable characteristics, rather than a concentration on function and social purpose—of the dichotomies of vice and virtue, christian and heathen.79 bernier initially suggested that there were four basic varieties of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 76 my use of “functionalist” is of a very generic sort. by the term i mean to reference those juridical techniques that emerged in the late nineteenth and early twentieth centuries, wherein jurists sought to interpret statutes and resolve gaps in legal materials through a purposive, instrumental, and “functional” perspective on social needs. conventionally, we think of functionalist techniques as representing the efforts of those that had been persuaded by the critiques of legal realism, and sought to build out of those critiques a program for moving forward. for a description of functionalism in the context of legal consciousness, see duncan kennedy, three globalizations of law and legal thought: 1850–2000, in the new law and economic development 44–45 (david m. trubek & alvaro santos eds., 2005). for a discussion of formalism, see pierre schlag, formalism and realism in ruins (mapping the logics of collapse), 95 iowa l. rev. 195 (2010). 77 goodwin liu has discussed the connection between formalism and civil rights jurisprudence in “history will be heard”: an appraisal of the seattle/louisville decision, 2 harv. l. & pol’y rev. 53, 53–54 (2008) (“[o]ur history teaches that legal formalism (eventually) loses its authority when it strays too far from social reality. [parents involved] comes close to taking us down that troubled path again.”). 78 hannaford, supra note 70, at 191. 79 this article does not mean to imply, however, that this new style of human classification was either necessitated by classic liberalism or its cause. instead, notably, in the second half of the seventeenth century, at exactly the same time that classic liberalism was in its infancy, science became preoccupied with human diversity and physical explanations for cultural phenomena. the projects of liberalism and what would later be called “race science” were conducted in tandem—of that we can be certain. as for questions of causation and correlation, these may be left for elsewhere. see generally etienne balibar & immanuel wallerstein, race, nation, class (1991); the racial contract, supra note 48; from class to race, supra note 48; miles & brown, supra note 20; theodore koditschek, capitalism, race, and evolution in imperial britain, 1850–1900, in race struggles 48 (theodore koditschek, sundiata keita cha-jua & helen a. neville eds., 2009); racial liberalism, supra note 50; maria grahn-farley, race and class: more than a liberal paradox, 56 buff. l. rev. 935 (2008); michael omi & howard winant, racial formation in the united states (2d ed. 1994). 2012 columbia journal of race and law 19 human being (the term “race” had yet to arrive), and that these varieties were distinguished on the basis of geography and physical appearance.80 more influential in this first phase of classification writing was the comte de buffon.81 buffon, writing in 1749, suggested that the classifications of humans could be explained by the theory that at a point far in the past, one original human species spread over the globe and was gradually exposed to climactic differences, foods, and diseases. as this process continued, humans took on various complexions, sizes, and temperaments. the critical feature of his theory was that these varieties of people were subject to change—they were not fixed—and that the fact of a single variety did not necessarily mean anything other than that a single class of people had been subjected to a particular set of external conditions. buffon still made value judgments about these varieties, specifically, european varieties were the best and the african ones were the worst. however, with time, buffon believed that these effects would be modified, and even reversed. it was with writers like these in mind that johann friedrich blumenbach, later known as the father of anthropology,82 published a series of editions of his immensely influential on the natural variety of man in the midst of the american and french revolutions. coining the term “caucasian,”83 blumenbach believed that these types were hierarchically arranged with caucasians positioned as the most beautiful and intelligent. the least desirable types of human were the ethiopians and mongolians; those people living in the americas occupied the middle range of development.84 blumenbach followed his predecessors in arguing that the physical differences between humans were mostly a matter of environmental pressures. in his view, all human beings fundamentally were of one single species. this view was known as monogenism, which in latin means “one species” or “one people.”85 blumenbach also denied that humans belonged to the animal kingdom, rejecting the notion that all natural creatures existed on a natural scale of transitional differentiations. in this posture blumenbach left behind the old notion of the great chain of being, reminiscent of aristotle’s natural scale. blumenbach’s thinking was that human beings consisted of one single species, and that it was a mistake to view the wide variety of human beings as alien to one another. the theory of the great chain !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 80 these groups were: (1) europeans, south asians, north africans, and americans, all of which shared in similar climates and complexions; (2) africans (central and south); (3) asians (central and north); and (4) lapps, “people who were ugly, squat, small, and animal-like.” about fifty years later, carolus linnaeus offered a fifth group: (1) homo ferus (savage); (2) europaeus albus (light-skinned, intelligent, law-abiding); (3) americanus rubescus (tanned, happy-go-lucky, custom-abiding); (4) asiaticus luridus (yellow-skinned and sad); (5) afer niger (dark-skinned, lazy, “governed by the arbitrary will of the master”). hannaford, supra note 70, at 204. 81 hannaford, supra note 70, at 203–14. 82 hannaford, supra note 70, at 206. blumenbach explained that human beings were of several types: caucasians, mongolians, ethiopians, americans, and malays. 83 painter, supra note 70, at 79. blumenbach offered a helpful explanation as to why this variety of human being would be identified with the caucuses: “i have taken the name of this variety from mount caucasus, both because of its neighborhood, and especially its southern slope, produces the most beautiful race of men, i mean the georgian.” id. at 81. 84 id. at 88 (“the tartar-caucasian was first and foremost the beautiful race. the mongolian was the ugly race, ‘weak in body and spirit, bad, and lacking in virtue’ . . . .”). 85 hannaford, supra note 70, at 211 (“for blumenbach all varieties and differences overlapped and merged into one another and had to be viewed according to the species, which was one and the same—a unity.”). race as a legal concept vol. 2:1 20 supported the view that there were several species of humans, linked in a hierarchically arranged system with monsters on one end and european men on the other, followed by primates and other creatures.86 despite blumenbach’s belief in the common brotherhood of all mankind, and thus the existence of one single human species, his typology of human classifications nevertheless set the stage for the use of a racial idea to assist in making sense of the apparent fact that some people were a lot better than other people.87 the monogenist ideas of blumenbach and others like johann gottfied von herder dominated race science until the 1850’s, but their power diminished well before then.88 vying for consideration were the minority positions of scientists like charles white and peter camper, who argued respectively for the notion that africans were the link between europeans and apes, and that this theory could be proven through the statistical display of facial angle measurements and skull shapes.89 in early nineteenthcentury britain, the argument that africans comprised a distinct species, linking “real” humans to apes, was rejected as quackery.90 writers like thomas winterbottom, james prichard, and william lawrence believed that the evidence overwhelmingly placed humans outside of the animal kingdom, obviating the need to provide any “link” at all. to be sure, practically all writers agreed that africans were the least “developed” of the human varieties, and physically were the least fortunate, but these differences were not natural but merely the result of environmental factors. as lawrence argued: that the negro is more like a monkey than the european cannot be denied as a general observation. but why is the negro always selected for this comparison? the new hollander, the calmuck, the native american, are not superior to the africans, and are as much like monkeys. why then is the negro alone to be depressed to a level with the brute?91 to be clear, the unity of the human species was defended by the likes of blumenbach, herder, prichard, and lawrence. the equality of the variety of human beings was not. the step from here to a more muscular “racism” would not be a difficult one to take. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 86 this was linnaeus’ view. id. at 203–08. 87 as ivan hannaford explained: “during the last forty years of [blumenbach’s] long life controversy raged over items he had put squarely on the agenda: degeneration, . . . the significance of language and milieu (geography, climate, relief, soil, land), and perhaps most important of all, the capacity of peoples for progressive physical, moral, and political development.” id. at 213. 88 stepan, supra note 70, at 10. in a similarly holistic view of the human species, herder published an account in the last decades of the eighteenth century suggesting that a new idea—culture—was the real organizing principle for the different manifestations of human society. for herder, these cultures were equal in the sense that they were technically all human cultures, produced through a combination of different linguistic, religious, musical, educational, and ritualistic practices. again, equality was a driver in herder’s thinking, but the very maneuver of classifying difference enabled much of the race science that would develop in the nineteenth century. another important connection anticipated here is the relationship that would develop between race and culture—if culture was the shaping force of society, race would come to shape culture. 89 id. at 9–10. 90 these arguments were made in france as well, for example by georges cuvier. 91 stepan, supra note 70, at 11 (quoting william lawrence, lectures on physiology, zoology, and the national history of man (1822)). 2012 columbia journal of race and law 21 b. polygenism, 1815–1860 the shift that occurred in race science around the middle of the nineteenth century involved a series of moves, all revolving around the rebuttal of environmentalism as a coherent explanation for the superiority of certain races over others. more and more, anthropologists and ethnologists turned to everadvancing methods of quantifying the many dimensions of the human body, with special emphasis on the brain and skull. the emerging consensus was that “races” of human beings could be identified on the basis of skull measurements, and that these differences generated vast gaps in the moral, intellectual, and cultural capacities of these groups. critically, these differences were subject to value judgments as they had always been—the intellect and culture generated by the european skull was of a different order of magnitude than those found in “other” skulls. regardless of environmental factors, these intellectual, moral, and cultural capabilities were seen as being inflexible—innate and woven into the very structure of race. whereas early monogenists viewed race, and to be more precise with regard to blumenbach’s preferred term of “variety,” as hardly determinative of anything, race transformed from an incidental factor into a source of explanation. thus, a scientific rationale for the racial contract was coming into focus. in the united states, where polygenism was more popular, the anatomist samuel george morton was a leading advocate of the view that human races were distinct species with innate differences.92 writing in the decades preceding the american civil war, morton accepted blumenbach’s classification of five races (morton swapped the term “race” for “variety”), but argued that instead of these races having been produced by their environments, every race had particular qualities that were independent of context and especially adapted to peculiar locations.93 these qualities were innate and immutable, and were correlated with the average cranial capacity of each race.94 fortuitously for morton, his measured averages tracked exactly the cultural and aesthetic rankings of blumenbach. each of these five fundamental races were also broken up into families, anticipating the increasingly dangerous work which was to come in separating out the superior caucasian families from the degenerate ones. though other race scientists were more influential at the time,95 count arthur de gobineau’s 1853 publication of the inequality of races is more well known today as one of the key motivators for what would become nazism.96 due to this impact, and to give more of a flavor to the argument, it is worth !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 92 baum, supra note 70, at 106. 93 id. 94 according to morton’s measurements, the caucasian cranial capacity averaged eighty-seven cubic inches, mongolians averaged eighty-three inches, malays averaged eighty-one inches, american indians averaged eighty inches, and ethiopians averaged seventy-eight inches. id. at 107. in 1840, anders retzius introduced the “cranial index,” which was notated by the maximum breadth of the head expressed as a percentage of maximum length. he was also the author of the terms “dolichocephalic” (long-headed skull) and “brachycephalic” (broad-headed skull). baum, supra note 70, at 130–31. 95 back in britain, the anatomist robert knox published the races of men in 1850. knox began with an attack on prichard, arguing that there was no evidence for believing in an original human species that had spread throughout the world, and that the species must be studied with anatomical methods—biologically, as the term now appeared consistently in the literature. id. at 5–32. in tandem with this biological conception of race, knox pushed forward the disaggregation of the caucasian race, emphasizing the purity of the saxons, and the destiny of that people to conquer the world. id. at 32–54. importantly, this structural purity of racial stock was immune to degradation, just as the jewish people could never hope to improve their own. these differences were biological, and therefore unchangeable. the revolutions of 1848 were the backdrop here. 96 hannaford, supra note 70, at 265. race as a legal concept vol. 2:1 22 spending a bit longer on gobineau, the french “father of racism.”97 gobineau divided the human races into three: white, black, and yellow. as he explained, “i understand by white men the members of those races which are also called caucasian, semetic or japhetic. by black men i mean the hamites; by yellow the altaic, mongol, finnish and tartar branches. these are the three primitive elements of mankind.”98 though skin color and the bible are doing a lot of work here, gobineau also agreed that bone structure was highly relevant as well. gobineau also ranked the races, as well as a shift from bone to blood: “the peoples who are not of white blood approach beauty, but do not attain it.”99 gobineau went on to write, “as the [non-white] races recede from the white type, their features and limbs become incorrect in form; they acquire defects of proportion which, in the races that are completely foreign to us, end by producing an extreme ugliness.”100 just what is this white beauty so elusive to the rest of humanity? gobineau claims that it can be found in the most obvious of places: in the “…tall and nobly proportioned figure of charlemagne, the intelligent regularity of the features of napoleon, and the imposing majesty . . . of louis xiv . . . .”101 gobineau was not suggesting that all whites were equally attractive—italians were more beautiful than the germans, swiss, french, or spanish.102 and, just as no race was as physically strong as the whites, “[i]n strength of fist, the english are superior to all other european races; while the french and spanish have a greater power of resisting fatigue and privation, as well as the inclemency of extreme climates.”103 if skin, bone, and scripture told us a story about the human races, gobineau explained that racial differences were far from skin-deep. the black race is stamped at birth with a pelvis of animal character, a character that “foreshadows his destiny.”104 the “negro” is not an animal, but not much more—“his mental faculties are dull or even non-existent”—though he does possess senses that are more animal-like than human. the negro will eat anything, have sex with anything, kill anything, and do whatever it takes to satisfy his primal needs. “to these qualities may be added an instability and capriciousness of feeling, that cannot be tied to any single object, and which, so far as he is concerned, do away with all distinctions of good and evil.”105 as for the yellow race, these people trend towards obesity, have little physical energy, and lack the “strange excesses so common among negroes.”106 according to gobineau, a person of the yellow race is mediocre in everything, utilitarian, never dreams of greatness, and has as his “whole desire . . . to live in the easiest and most comfortable way possible.”107 it is probably a waste !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 97 arthur de gobineau, the inequality of human races (adrian collins trans., 1967). 98 id. at 146. 99 id. 100 id. 101 id. 102 gobineau, supra note 97, at 152. 103 id. 104 id. at 205. 105 id. at 206. 106 id. 107 id. 2012 columbia journal of race and law 23 of time to summarize gobineau’s summary of white people—needless to say, he thought they were amazing.108 in the following decade, arguments for the innate, anatomical basis of distinct human races, and the moral, cultural, and intellectual consequences that followed, increasingly dominated europe. as nancy stepan has argued, the new racial biology appealed to the general public because it appeared to agree with the europeans’ sense of themselves in the world, and to be based on a wider set of data, more sophisticated measurements, and a deeper knowledge of biological processes and functions than previous work on human races. in short, by the middle of the century, a new racial science had come into being in which races were indeed, as [robert] knox claimed, ‘everything.’109 c. evolution and eugenics, 1860–1945 if writers like gobineau represented the apogee of polygenist thinking in the first half of the nineteenth century, the use of race as an explanation for european superiority shifted gears in the second half. after 1859, no examination of human genesis and variety could proceed without taking note of charles darwin’s on the origin of the species—a game-changer if there ever was one.110 from this point forward, polygenism was no longer a valid belief, as it became universally accepted in the natural sciences that the human species was not a fixed, unchanging, perfect creation, but one that had been undergoing constant and continuous change since its beginning.111 darwin’s insight into the idea of natural selection—that competition for survival favored those attributes most advantageous to keeping an organism alive—seemed to push race science back in the direction of environmentalism. what marked this new phase of race science was not, however, a return to blumenbach, and in fact it was something like the opposite. despite the initially apparent arguments that evolutionary theory posed against race science, the idea of evolution turned out to be a far sleeker and more powerful weapon for racist thinking than anything seen before. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 108 gobineau rejected the fairly common view of the time that, though these descriptions are accurate enough, they are subject to the civilizing mission, and that the lower races can be bettered. gobineau explained that this is not so, and that just as humanity at large has failed to progress since ancient time, it is similarly the case that non-whites are precluded by their race from acquiring any of the positive traits of the whites. as one of many examples, here is gobineau’s articulation of the situation of the american indian: “they know that the strength of their [white] masters is irresistible. they have no hope whatever of seeing their native land one day delivered from the conqueror; their whole continent is henceforth, as they all know, the inheritance of the european . . . . from their purchases of brandy, guns, and blankets, they know that even their own coarse tastes would be more easily satisfied in the midst of such a society, which is always inviting them to come in . . . . it is always refused. they prefer to flee from one lonely spot to another . . . . they will die out, as they know well; but they are kept, by a mysterious feeling of horror, under the yoke of their unconquerable repulsion from the white race, and although they admire its strength and general superiority, their conscience and their whole nature, in a word, their blood, revolts from the mere thought of having anything in common with it.” gobineau, supra note 97, at 170–71 (emphasis added). because this revulsion is in the blood, in the race, it is impossible for whites to civilize non-whites, and due to this unchanging feature of race relations, gobineau concludes that it is an understatement to bar the races from mixing—the true condition is one in which the mixing of races eventually will lead to the extinction of humanity. id. at 210–11. 109 stepan, supra note 70, at 46. 110 baum, supra note 70, at 129–30. 111 id. race as a legal concept vol. 2:1 24 the articulation of a new science was not the only relevant occurrence. just as the explanatory power of the idea of race gained ground in europe after the revolutions of 1848, and in the united states in the run-up to the civil war, so did it once again build steam in the last several decades of the nineteenth century.112 europe was jarred by the franco-prussian war of 1871 and the ensuing depression, and the united states limped through reconstruction, which was noted by some scholars as the nadir of race relations. in these political contexts, the two new conceptions of social evolution and eugenics flourished in a sort of perfect storm of political and scientific turbulence. as far as social evolution goes, probably no other name comes as readily to mind as herbert spencer’s.113 the philosophy of laissez-faire,114 which attracted spencer’s fierce support, instructed social planners to abide by a theory of natural selection. to the extent government tried to control the more extreme effects of this competitive process, the government was effectively ensuring the survival of backward and deviant vestiges. by analogy, spencer argued for society to be understood as a social organism, which was subject to the laws of natural selection in exactly the same way as were species. the conclusion drawn with regard to the human races was apparent. just as the backward and deviant attributes of the human species were ultimately extinguished over periods of competitive struggle, so too would those unworthy elements of society languish and disappear. they would disappear, that is, so long as competition was allowed to proceed without governmental interference. how did race science square the view that races were fixed and innate with the notion of continuous, evolutionary change? anthropologists agreed that though it may have been the case that in some primordial past human beings may have had a common, shared identity, racial formation occurred at a similarly distant point. instead of the human races evolving, however, the evolution of race had stopped. the rationale for the idea that there was a pre-human period in which races were formed through evolutionary processes, only to be followed by stasis, was that once human beings had become more intelligent, they were able to subvert and deny the forces of natural selection. as a result, evolutionary struggle would continue to affect humanity, but not individual human beings. the struggle was from the dawn of modern man a struggle between the races of men, and not between men themselves.115 the job of the race scientist was consequently the study of these primordial races and the identification of their truly natural essences. the trouble, of course, was that scientists were finding that they couldn’t identify racial essences from the study of particular individuals. individuals were simply too varied to ever be representative of what were believed to be the standard traits of a race. thus, individual people were studied not to help generate a picture of racial identity, since this appeared to be impossible. instead, individual differences between people who were apparently meant to belong to a single race were chalked up as environmentally produced, or mutations from the racial standard. the obvious !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 112 id. at 120–26. 113 see, e.g., mike hawkins, social darwinism in european and american thought 1860–1945, at 82– 103 (1997). 114 the idea here is that just as a species becomes more and more adapted to its environment through the selection of those attributes that are most competitive, so society also evolves in an identical way. through the fire of competition, society is naturally molded towards more and more progressive ends. though the competitive process will surely wreak havoc on the weak, it ensures the survival of the fittest, and even more, the success and bettering of the fittest. for a history of laissez-faire, see jacob viner, essays on the intellectual history of economics (douglas a. irwin, ed. 1991 [1960]). 115 see generally hawkins, supra note 113; stepan, supra note 70; baum, supra note 70. 2012 columbia journal of race and law 25 problem here was that if racial identity could not be constructed from the study of individual human beings, where was it coming from?116 the notion of race was increasingly looking more and more like an article of faith, and not of empiricism. from here it is but a short hop to the new field of eugenics, which did not become fashionable until the early twentieth century.117 around that time, several popular works on race science were lending more support for the view that there were biologically fixed racial identities and, more specifically, that the so-called white or caucasian race was not a unity. among such works was the american economist william z. ripley’s 1899 publication of the races of europe, a turning point in u.s. race science.118 while blumenbach’s idea of the caucasian race had gained popularity in the united states, most scientific study of the idea of a caucasian race did not get under way until after ripley.119 in part, as bruce baum explains, ripley’s work was filling a social need—a need to provide persuasive evidence that midnineteenth-century european-americans were superior to the new europeans immigrating in that century’s last decades.120 stepping into this space was ripley’s view that the idea of whiteness was a misnomer,121 and that there were actually three primary european races.122 each racial group was characterized by a single !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 116 both gobineau and ripley were of apiece on this point: “it is not essential to our position, that we should actually be able to isolate any considerable number, nor even a single one, of our perfect racial types in the life. it matters not to us that never more than a small majority of any given population possesses even two physical characteristics in their proper association; that relatively few of these are able to add a third to the combination; and that almost no individuals show a perfect union of all traits under one head, so to speak, while contradictions and mixed types are everywhere present.” william z. ripley, the races of europe 108 (1899) (emphasis added). 117 in short, its advocates believed that human beings had short-circuited the evolutionary process through cunning; if, like other animals, humans had selectively produced in a way that would have maximized adaptive advantages, the non-white races would have extinguished long ago. but the human mind broke the laws of nature, choosing instead to keep on procreating, despite the competitive disadvantages of belonging to a non-white race. the field of eugenics was meant to solve this problem, informing how social policy, in the words of francis galton, “may improve or impair the racial qualities of future generations either physically or mentally.” as nancy stepan has explained, galton’s 1869 publication of hereditary genius embodied several of the key assumptions of the eugenics movement. first was the belief that intelligence was discrete and quantifiable, and that intelligence was a matter of inheritance. a second and related view was that the amount of inherited intelligence was easily identifiable and measurable through “objective” intelligence tests. third, intelligence was believed to be entirely a matter of racial inheritance—in the debate between nature and nurture, nature was all. fourth, it was critical to turn this science into policy, and that in order to extinguish the specter of degenerate generations in the future, government had to regulate the process of selective breeding. the impetus for this was the belief whereas nature eliminated the sick and the stupid in the rest of the animal kingdom, humanity protected its imbeciles from early death. man’s tinkering with the natural order, so galton believed, had to be stopped. see stepan, supra note 70. 118 baum, supra note 70, at 144; see also ripley, supra note 116. 119 baum, supra note 70, at 144. 120 id. 121 ripley, supra note 116, at 103. 122 these were: (1) the teutons from northwestern europe, with long heads and faces, light hair and eyes, tall, prominent and thin noses, (2) the alpines spread through france, spain, italy, germany, and albania, with round heads race as a legal concept vol. 2:1 26 range of cranial shape,123 but ripley made it clear that there were very few, if any, actual living individuals that possessed all the racial traits characteristic of a particular racial group. despite the apparent fact that races did not exist in the world of 1900, the idea of race was so crucial that it “exists for us nevertheless.”124 if statements like these are bewildering, writers like houston stewart chamberlain, writing at the same time as ripley, provide some insight into the feverish need to believe in the existence of a thing called “race.” there was no doubt, chamberlain conceded, that scientific method was struggling to establish a firm footing for the idea of race.125 however, this kind of struggle was necessary and expected, given the constant state of intermingling and cross-breeding that has occurred over the ages.126 the true fact was that scientific confusion should never be mistaken for suspicion over whether or not race is a real thing. to question the existence of race was to question the existence of life itself. here is how chamberlain presents the experience of a pure-blooded member of the teutonic or germanic race: nothing is so convincing as the consciousness of the possession of race. the man who belongs to a distinct, pure race, never loses the sense of it . . . . weak and erring like all that is human, a man of this stamp recognizes himself, as others recognize him, by the sureness of his character, and by the fact that his actions are marked by a certain simple and peculiar greatness, which finds its explanation in his distinctly typical and superpersonal qualities. race lifts a man above himself: it endows him with extraordinary—i might almost say supernatural—powers, so entirely does it distinguish him from the individual who springs from the chaotic jumble of peoples drawn from all parts of the world: and should this man of pure origin be perchance gifted above his fellows, then the fact of race strengthens and elevates him on every hand, and he becomes a genius towering over the rest of mankind, not because he has been thrown upon the earth like a flaming meteor by a freak of nature, but because he soars heavenward like some strong and stately tree, nourished by thousands and thousands of roots—no solitary individual, but the living sum of untold souls striving for the same goal.127 for chamberlain, the idea of race was hardly ever in jeopardy of falling into desuetude: it was simply a matter of science catching up with the natural world, with the facts catching up with the theory.128 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! and broad faces, chestnut colored hair and hazel eyes, broad noses, and medium and stocky builds, and (3) the mediterraneans come from everywhere south of the pyrenees, with long heads and faces, dark hair and eyes, very broad noses, and medium and slender builds. each racial group was also characterized by a single range of cranial shape. id. at 37–45. 123 id. 124 id. at 112. 125 1 houston stewart chamberlain, foundations of the nineteenth century (john lees trans., 1994). 126 id. at 271. 127 id. at 269. 128 id. at 317 (“[r]ace, and nationality which renders possible the formation of race, possess a significance which is not only physical and intellectual but also moral. here there is before us something which we can characterise as sacred law, the sacred law in accordance with which we enter upon the rights and duties of manhood . . . .”). as for how to move forward, chamberlain believed he had found several rules for race-formation. the origin of a pure race necessitated the presence of a strong stock—a material with which to begin to build. then, the stock needed to be 2012 columbia journal of race and law 27 chamberlain suggested that it was clear to a member of the germanic race, just as it was clear to an adversary member of the jewish race. for non-members, however, the trick of identifying the superior human was really not all that tricky. too many misconceptions floated around—germanic peoples were not required to have light hair, but in fact, “the most genuine sons of this race may be black-haired.”129 it was correct to believe, however, that members of the german race possess long skulls. the fact that many, and in some cases the majority of these peoples have round skulls should not be a bother: “that in these phenomena we see the effects of the infiltration of an un-germanic race, a race that does not belong at all to the indo-european circle, but to the race-less chaos, can scarcely be doubted.”130 again, smith concedes the scientific challenges while re-asserting the apparent obviousness of it all: it frequently happens that children who have no conception of what ‘jew’ means, or that there is any such thing in the world, begin to cry as soon as genuine jew or jewess comes near them! the learned cannot frequently tell a jew from a non-jew; the child that scarcely knows how to speak notices the difference. is not that something?131 besides, if we discard the physical distinctions of race, the decisive greatness of the germanic race distinguishes itself in its moral and intellectual legacies—which is literally everything that is good.132 d. ethnicity vs. race, 1935–1980 while the eugenics movement steadily accelerated in the united states, it reached a fever pitch in germany. after world war ii, eugenics took a fall, associated as it was with the holocaust. but the return of a more “rational” race science at the mid-twentieth century was not solely a product of the nazi defeat, as a minority stream of writers beginning with the likes of lancelot hogben and franz boas criticized the alliance between evolutionary theory and eugenics.133 in the wake of world war i, the lawyers and politicians behind the league of nations and a treaty system meant to deal with the european “minorities problem” found themselves grappling with an emerging international right of “self-determination.” if this was a right that ultimately entitled a particular entity to a degree of political autonomy, if not outright independence, the question was sure to turn on just what kinds of group would hold the nascent right. peoples or nationalities? races? simultaneously, the interwar years were also marked with the rise of nazism and the peak of the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! purified over time through the artificial (in contract to “natural”) process of sexual selection and inbreeding. in order to strengthen the racial stock, it then needed to be cross-bred, but only in small doses and in the right quarters. finally, a great race will be heated in the fires of nationalism, as it is only in the house of the nation that racial greatness can be achieved. id. at 317–20. smith explained that in the articulation of these pre-conditions he had touched “upon a deep scientific fact.” id. at 317. 129 chamberlain, supra note 125, at 526. 130 id. at 527. 131 id. at 537. 132 id. at 542–50. 133 for a general review of this literature, see baum, supra note 70, at 162–92; and stepan, supra note 70, at 140–96. race as a legal concept vol. 2:1 28 eugenics movement. it is in this context that a new wave of race science struck against the popular idea that the superiority of european peoples could be defended on “racial” grounds. 134 illustrative is the work of ashley montagu’s attack on “race” and his preference for “ethnicity” in writings such as the first 1942 publication of man’s most dangerous myth: the fallacy of race, his work on unesco’s 1951 “statement on race,” and the concept of race published in 1964. montagu challenged the whole notion of race science as an enormous amount of talking in circles and question-begging: for nearly two centuries anthropologists have been directing their attention principally toward the task of establishing criteria by whose means races of mankind might be defined. all have taken completely for granted the one thing which required to be proven, namely, that the concept of race corresponded with a reality which could actually be measured and verified and descriptively set out so that it could be seen to be a fact . . . . the process of averaging the characters of a given group, knocking the individuals together, giving them a good stirring, and the serving the resulting omelet as a “race” is essentially the anthropological process of race-making. it may be good cooking but it is not science, since it serves to confuse rather than clarify . . . . the omelet called “race” has no existence outside the statistical frying-pan in which it has been reduced by the heat of the anthropological imagination.135 like julian huxley and a.c. haddon in their 1936 publication of we europeans, however, montagu admitted that innate differences existed between populations, but that the better way of capturing these differences was with the label “ethnic group.”136 the basic reasoning is that while it is true that populations differ in terms of the frequency of certain genes, to then call this difference “racial” is to inject into the facts a set of varying beliefs about the cultural and intellectual baggage that must or may !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 134 a major intervention was made when julian huxley and a.c. haddon published we europeans in 1936. julian huxley & alfred c. haddon, we europeans (1936). attacking the “pseudo-science” of writers like gobineau and smith, huxley and haddon argued that the bulk of race science had been established to support the political, social, cultural, and economic superiority of some populations over others, and that as real science, the biology of race was complete nonsense. id. at 144–64. to be sure, they were not arguing that various populations could not be separated by innate genetic differences with regard to both physical and psychological traits—this would present an argument against race that would eventually come later in the century. but, where huxley and haddon admitted the existence of innate genetic differences between groups, they first challenged the non-sequitur that one could deduce psychological conditions from physical conditions. id. at 144. that is, there was no real evidence whatsoever that black skin or a certain cranial capacity could tell a scientist anything at all about “racial” intelligence. second, they criticized the idea that one could find average degrees of intelligence based on physiognomy—“there will be in every social class or ethnic group a great quantitative range and a great qualitative diversity of mental characters, and different groups will very largely overlap with each other.” id. at 70. third, huxley and haddon suggested that whereas race science had previously concluded that “race is everything” in the question of nature versus nurture, this was surely wrong. climate and culture played an enormous role in the differentiation of human capabilities, and as yet, they concluded, there was simply no way of quantifying how explanatory nurture or nature might be in any given situation. while huxley and haddon agreed that there were innate differences between populations, and therefore kept within the discourse of a biological idea about the separation of groups of human beings, they believed that “nothing in the nature of ‘pure race’ in the biological sense has any real existence.” id. at 14. looking to herodotus’ use of the term ethnos, huxley and haddon suggested “ethnic group” to provide a superior way of labeling political, cultural, social, and economic differences between human populations. id. at 30–31. 135 ashley montagu, the concept of race in the human species in the light of genetics, in the concept of race 5–6 (ashley montagu ed., 1964). 136 ashley montagu, the concept of race, in the concept of race, supra, at 15–27. 2012 columbia journal of race and law 29 follow from these genetic differences.137 thus, while the term “race” is conclusory, suggesting for the user an established connection between mental and physical characters, montagu believed that the term “ethnic group” was open and vague enough to force the user to understand “ethnic group” as a “problem to be solved.”138 in contrast, the use of “race” suggests that the problem of human classification has already been solved. in other words, once the anthropologist identifies differences of gene frequencies in particular populations as racial, he has answered the question of whether there is a thing called race.139 in contrast, the anthropologist using the term “ethnic group” does not presume to have identified anything at all about human variation other than that certain populations appear to have diverging gene frequencies. we may not be persuaded that the use of ethnicity does work of a very different kind than the use of race. despite the heavy skepticism of this period regarding the existence of race as a scientific concept, classifications did continue. huxley, haddon, and montagu all backed the idea that there were three major groups: mongoloids, negroids, and caucasoids.140 what is certain of this period, however, is that there was a concentrated attempt to take the racism out of race, if not to eliminate the idea of race all together. if human classifications were real, then whatever they were, they could no longer be connected up with intellectual differences. science was therefore in the business of emptying race of its cultural content.141 as a result, science was also in the business of excusing itself as a rationale for the racial contract. recall that the idea of race was constructed as an answer to a particular question: how could the superiority of europeans over non-europeans be justified? if science was divorced from the idea that something called race had biological connections with cultural and intellectual capacities, the racial contract would lose its scientific rationale. e. the biological foundation of race is fiction in the last decades of the twentieth century and in the beginnings of the twenty-first, advances in genetics closed the door on the old idea of race as a biological concept. there is evidence, however, that clusters of gene frequencies exist in discrete populations—populations that track the major geographical regions of the world: africa, east asia, melanesia, the americas, and eurasia.142 so what does this mean? is this actually an argument for the biological existence of race, after all? in the context of how race has traditionally been used as a means of classifying human beings, the answer is definitely no. the bottom line is the oft-quoted conclusion that gene variations occur with far more frequency within subpopulations than between them. this simply means that if one has an interest in isolating genotypes, the resulting classification will be one that necessarily spans africa, the americas, and the rest of the globe. to be sure, due to sexual selection among certain groups, there is a higher frequency of certain !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 137 id. at 18–22. 138 id. at 25. 139 id. at 26–27. 140 ashley montagu, on coon’s the origin of races, in concept of race, supra note 135, at 236–38; huxley & haddon, supra note 134, at 136–137; unesco, the race question (1950), available at http://unesdoc.unesco.org/images/0012/001282/128291eo.pdf. 141 probably the best-known example is carleton s. coon, racial adaptations (1982). 142 see, e.g., miles & brown, supra note 20, at 44–50; racism in the 21st century (ronald e. hall ed., 2008); janis faye hutchinson, the coexistence of race and racism (2005). race as a legal concept vol. 2:1 30 genes among the members of those groups. but the frequency of those genes is not connected with any other genetic phenomena. as geneticist keith cheng has explained, “such traits [as the african american susceptibility to heart disease] would be expected, most of the time, to be inherited independently from skin-color genes, making skin color, and therefore race, an unreliable substitute for knowing the real gene variations that correlate with drug responsiveness.”143 a way to illuminate this is by way of the contemporary consensus regarding the susceptibility of particular subpopulations to specific diseases. common examples include african-americans with heart failure and european-americans associated with ashkenazi jewish families and tay-sachs disease.144 scientists generally agree that these subpopulations carry gene frequencies amenable to specific kinds of treatment, and are less responsive to others. what is key, however, is that these particular gene variations are completely independent from the gene variations responsible for such things as hair, skin, blood, and bone type. some might be tempted to call these gene frequencies the stuff of “racial classification,” but montagu’s question remains just as alive today as it did seventy years ago: what is the basis for calling such differences racial differences? they are genetic differences, we know that much. to make any greater claim is to beg the essential question. iv. neoliberalism and post-racial colorblindness the story described above outlined an intellectual history of the idea of race in science. the argument characterized this history as a series of attempts to use scientifically objective rationales to justify the racial contract. the story ended, however, in the present-day renunciation of a scientific basis for the idea of race, leaving us with some nagging questions: if “race” began as an idea about how to justify the superiority of european peoples over other peoples, and the scientific basis for that idea has finally been proven illusory, what does that mean for law? does this undermine the validity of race as a legal concept? as for the first question, it is a history that highlights the impossibility of “colorblindness,” which involves the belief that an ultimate theory of racial justice is predicated on the elimination of race as a factor in political discourse.145 regarding the second question, an important point to remember is that legal concepts are analytically distinct from natural or social concepts. to be sure, there may be a temptation to eradicate a legal concept if we have determined that the concept’s natural analogues are myths—and in some cases, it may be worth our while to eliminate the concept at once. the immediate point, however, is this: nothing logically follows from a recognition that human races are imaginaries, not scientific fact. what we do with this recognition is up to us. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 143 keith cheng, demystifying skin color and “race”, in racism in the 21st century, supra note 142, at 15. as michael bamshad (geneticist) and steve olson (science writer) have recently explained: “given that people can be sorted broadly into groups using genetic data, do common notions of race correspond to underlying genetic differences among populations? . . . because traits such as skin color have been strongly affected by natural selection, they do not necessarily reflect the population processes that have shaped the distribution [of real genetic differences]. therefore, traits or polymorphisms affected by natural selection may be poor predictors of group membership and may imply genetic relatedness where, in fact, little exists.” michael bamshad & steve olson, does race exist? scientific american, dec. 2003, at 78, 83. see also masatoshi nei & arun roychoudhury, genetic relationship and evolution of human races, evolutionary biology 14 (1983) (reassessing magnitude of genetic differences among three major human races). 144 baum, supra note 70, at 215. 145 as justice kennedy wrote in a concurrence to parents involved, “the enduring hope is that race should not matter.” 551 u.s. 701 at 787. 2012 columbia journal of race and law 31 in this part, the basic argument is that the biological concept of race invented in the sciences steadily migrated into legal discourse, providing the background or constitutive rules of race as a legal concept. at various times in u.s. history, these background rules have had more or less purchase on civil rights disputes and the surface appearance of equal protection jurisprudence. these shifts track the changes in race science surveyed above—though at all times a biological conception of race has continued to serve as the background rule of race as a legal concept.146 in keeping with duncan kennedy’s description of various phases of legal consciousness in american legal thought, it is useful to characterize these shifts in terms of “liberal legalism.”147 for example, in a classic liberal approach to race, background rules are central, which means that a great deal of the work in a legal decision will be performed by a characterization of racial identity.148 the reason for this is that once the natural character of race is properly identified, there is apparently little else for the judge to do, since races are considered unequal and objectively deserving of different sorts of treatment. in this old and now discredited style, an identification of racial identity was sufficient for producing a legal decision since racial identity came ready-made with a set of answers about how human beings were meant to interact with one another. another way of putting this is to say that a characterization of race as a legal concept in the classic liberal style is to reject colorblindness. in this approach, it would be a terrible mistake to avoid race-consciousness, since the races are naturally unequal, and as a consequence, deserving of very different legal treatment. in a modern liberal approach, background rules regarding the biological nature of racial identity recede out of view, though they remain constitutive of race as a legal concept: this is the beginning of the colorblind approach. that is, the modern liberal is very skeptical about the background rules (i.e. the biological concept of racial identity), since advancements in the sciences had by this time shown that there was very little that could be deduced about the cultural or intellectual content of racial identity. nevertheless, the modern liberal always retained those background rules as the baseline for her own attempts at regulation.149 thus, what becomes important for the modern liberal is the establishment of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 146 neil gotanda, race as reification (manuscript on file with the author). 147 kennedy’s early work is all framed in terms of a critique of legal liberalism. see duncan kennedy, the structure of blackstone’s commentaries, 28 buff. l. rev. 205 (1979). however, his most recent sketch of a periodization of legal consciousness avoids the terms and instead roots itself in a sequence from classical legal thought to social legal thought to contemporary. kennedy, supra note 34, at 19. as kennedy suggested both then and now, there is nothing that can necessarily be derived from liberal political theory in terms of legal structure. that is, liberalism does not itself come ready-made with particular constellations of legal arguments. i agree completely with this, and do not mean to suggest in the present analysis that there is anything about, say, the modern liberal style that determined the course of mid-twentieth century civil rights law. nevertheless, we can see that strain of civil rights law as performing in the modern liberal style, even while there was nothing about the style itself that necessitated the legal particulars. in the language of three globalizations, we might say that a focus on liberalism helps us understand why one generation speaks a particular langue. liberalism itself tells us nothing about parole. 148 for a general discussion of the philosophy of race, see philosophers on race (julie k. ward & tommy lott eds., 2002); racial liberalism and the politics of urban america (curtis stokes & theresa melendez eds., 2003). 149 contemporary anti-discrimination law takes as a given that standing for a claim presupposes the right kind of identity. that is, if you are going to have standing in a claim based on racial classifications, you need to be a member of the race that has been discriminated against—you need to show a cognizable injury. see, e.g., e. christi cunningham, the rise of identity politics i: the myth of the protected class in title vii disparate treatment cases, supra note 27, at 451–52 (difference between protected class and racial minority). race as a legal concept vol. 2:1 32 foreground rules, which involve attempts to protect an already existing, pre-legal racial identity through legislation.150 in a neoliberal approach to race, background rules remain receded, but foreground rules are disfavored at the same time, which has the curious effect of making the background rules feel more pronounced.151 the result is a jurisprudence that takes a biological view of racial identity as a legal baseline first established in the classic liberal style, but like in modern liberalism, believes there to be little that can be gleaned in terms of a guide for legal decision-making from these background rules. therefore, neoliberals seek “colorblindness” as modern liberals do. the neoliberal approach is also like classic liberalism, however, in that it suggests a jurisprudence that is wary of the need for any regulative framework at all. justice will be found in the play of the background rules, and not in a sphere of government regulation that is more often than not subject to the arbitrary capture of political interest.152 these three conceptions are summarized in the following chart.! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 150 this is basically a description of the major set of moves that emerged after world war ii regarding the scope and matter of civil rights law. see generally winant, supra note 3 (comparing post world war ii racial dynamics in four countries); graham, supra note 11 (providing a comprehensive legal history of civil rights). 151 this description of a neoliberal style is a little different from what one might expect. typically, neoliberals are very strong on background rules—take hernando de soto as an example. after extensive research throughout the developing world, de soto was convinced that the problem of development was centered precisely in the issue of background rules, specifically in this case, property rights. it wasn’t that people in the developing world didn’t own enough property, but rather that they did not have their property recorded in legal system. if one’s house is not properly recorded, de soto explained, that house could not then take on its critical function as a capital asset. and without capital, development would remain a dream. as de soto suggested, “in the west, this formal property system begins to process assets into capital by describing and organizing the most economically and socially useful aspects about assets, preserving this information in a recording system—as insertions in a written ledger or a blip on a computer disk—and then embodying them in a title. a set of detailed and precise legal rules governs this entire process. . . . they capture and organize the potential value of an asset and so allow us to control it. property is the realm where we identify and explore assets, combine them, and link them to other assets. the formal property system is capital’s hydroelectric plant. this is the place where capital is born.” hernando de soto, the mystery of capital: why capitalism triumphs in the west and fails everywhere else 47 (2000). 152 see, e.g., 2 friedrich hayek, law, legislation, and liberty: the mirage of social justice (1998). hayek firmly believed that liberal law led to the most just kind of society men could feasibly attain, and this justice flowed from the background rules of property and contract law. finally abandoning the feudal road, hayek argued that the “decisive step” in humanity’s progressive evolution was the discovery of the bargain. but the ability to consistently determine what belonged to whom, and how to trade one thing for another, depended on the development of property and contract rules. if this never were to happen, ideas like “ownership” and “bargain” would never had had any real meaning. hayek argued that these new rules of conduct were the mechanisms of co-existence, were definitively noncoercive, and had as their central function the creation of a society in which people with different outlooks on life, with different values for different products, could live together in peace. what was required was a law that told no man what he ought to do, but could “tell each what he can count upon, what material objects or services he can use for his purposes, and what is the range of options open to him.” id. at 37. though hayek imagined the private law as noncoercive and pre-political in a very strong sense, he nevertheless did, like locke before him, believe that the market brought with it more than a sustainable peace (essential as that was), but a just society as well. it was not that either of them thought that the moral content of property and contract would generate any particular constellation of social outcomes, but rather that it was the process of the private law that was just. “in this respect what has been correctly said of john locke’s view on the justice of competition, namely, that ‘it is the way in which competition is carried on, not its results, that count,’ is generally true of the liberal conception of justice, and of what justice can achieve in a spontaneous order.” id. at 38. 2012 columbia journal of race and law 33 table 1—three legal conceptions of race ! background rules foreground rules classic liberalism very strong the biological nature of the background rules are self-evident and come ready-made with answers about how to arrange society. non-existent modern liberalism weak the biological nature of background rules are retained, but the judge is instructed to treat racial identity as having little if anything to say about the intellectual, cultural, or moral differences between the races. this is a view in favor of colorblindness and cultural pluralism. very strong racial discrimination is believed to be pervasive and powerful, and the antidote lies in heavy state regulation, i.e. courtenforced desegregation, civil rights statutes, constitutional rights, etc. neoliberalism moderate the biological nature of background rules are retained, but the judge is instructed to treat racial identity as having little if anything to say about intellectual, cultural, or moral differences between the races. this is a view in favor of colorblindness and cultural pluralism. the background rules take on a more prominent aspect in this style due to the style’s heavy skepticism about foreground rules. weak the use of state regulation of race, or the use of racial classifications, is presumptively invalid. it doesn’t matter if the racial classifications are intended to benefit or harm a minority group. this is a view in favor of post-racialism. in the discussion that follows, the major argument is that in each stage of the development of race law in the united states, biology has always been there as a background and constitutive rule of race as a legal concept. it was there in the law of slavery, and it is there in the most recent decisions of the supreme court. to be sure, these background rules are doing very different work now, but they are doing work all the same. thus, it is critical to keep vigilant and avoid distraction from the emergence of an admittedly fundamental and truly important set of foreground rules: civil rights law, or, in other words, the shift from classic liberalism to modern liberalism. it is impossible to deny that race as a legal concept dramatically changed after brown and the civil rights act, but that is not the point. the point is race as a legal concept vol. 2:1 34 to focus on what has remained the same, the persistent hold that a biological understanding of race continues to have on the very manner in which race is legalized in the first place. in section a, the discussion explores how courts were first inclined to borrow the notion of “human races” from the sciences and use it as a conceptual means for justifying the enslavement of africans. it then skips ahead past the civil war and the fourteenth amendment, looking again to how legal discourse was tracking race science. at this stage, background rules were still doing a great deal of heavy lifting—judges could simply deduce the appropriate scope of legal relations from an identification of a person’s “race.” in section b, the discussion moves past the beginnings of modern liberalism and brown and into the formation of the affirmative action debate. in this context, the supreme court demonstrates its commitment to a more progressive understanding of the background rules of racial identity (biology), but also signals some concerns about being overwhelmed by interventionist foreground rules (civil rights law). in section c, the analysis brings the focus to parents involved as an example of a neoliberal style of framing race as a legal concept.153 this style is identifiable for its retention of an allegedly colorblind set of background rules and a quasi-rejection of the continued relevance of foreground rules. a. the classic liberal style: from slave law to jim crow slave law is as good a place as any to begin an analysis of race as a legal concept. slave law is that body of property and contract rules governing the transfer and control of certain people in the possession of others.154 more particularly, slave law depended on the work of blumenbach and others, requiring racial classifications in order to trigger particular sorts of property and contract rules. as derrick bell explained, “[i]n virtually all of the cases, blacks were the subjects and not the parties in the litigation. they were property subject to ownership.”155 for example, writing just before the american !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 153 according to sumi cho, the recent supreme court decision in the parents involved case reveals the newest judicial mechanisms created to preserve racial hierarchy while rearticulating subordination as equality, and deploying failure-of-proof rationales . . . in parents involved, the court revealed the inherent contradiction between compelling interest and narrow tailoring. in order for the state to engage such a strategy, it must show that student racial diversity and race-conscious student assignment are compelling state interests. however, once a racial classification passes this compelling-interest test, it must then be narrowly tailored. here lies the catch-22 of the court's framework for affirmative action: if a plan survives the compelling-interest test, then it must also be narrowly tailored—it must be only sparingly used, when absolutely necessary, as one factor among many—or as the parents involved court put it, “the way in which [the district has] employed individual racial classifications is necessary to achieve [its] stated ends.” but in parents involved, justice roberts responded to the seattle school district's use of race-determinative student assignments, with the “gotcha” in his plurality opinion. roberts said, “[t]he minimal effect these classifications have on student assignments. . . . suggests that other means would be effective.” cho, supra note 16, at 1616–18 (citations omitted). 154 for a collection of slave cases, see helen t. catterall, judicial cases concerning american slavery and the negro (1936); race and races: cases and resources for a diverse america 120–36 (juan perea et al. eds., 2007). see generally david b. davis, the problem of slavery in the age of revolution (1999); mark tushnet, the american law of slavery, 1810–1860: considerations of humanity and interest (1981); adrienne davis, the ‘sexual economy’ of american slavery, in still brave: the evolution of black women’s studies (reprint) (s.m. james, f.s. foster & b. guy-sheftall eds., 2009) . 155 bell, supra note 25, at 27. 2012 columbia journal of race and law 35 civil war, thomas cobb, widely regarded at the time as a luminary in slave law, crystallized the main idea in his an inquiry into the law of negro slavery in the united states of america: only “negros” could be slaves.156 as cobb explained, courts presumed that the human variety known as “negro” first promulgated by the early monegenists, and then furiously degraded by polygenists like gobineau (writing in 1853), really existed as a “race,” and that it was possible to identify them in a way consistent with the rule of law. it is in this way that slave law was predicated on the idea of race science—without ostensibly objective classifications of human varieties, slave law would have been unable to function. to put it another way, if only members of the negro race could be enslaved, how might the law have been different if the idea of racial varieties had never been invented in the first place?157 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 156 thomas cobb, an inquiry into the law of negro slavery in the united states of america (1858). in the first chapter cobb enunciates what might be called a cardinal rule of american slave law, though it stands in contrast to popular opinion: (1) slaves were considered first as persons and second as property, (2) were negro, and (3) were subject to a virtually unlimited amount of control by their masters. this rule thus has three main parts, the first and third of which are largely beyond the scope of this paper. though many have argued that slaves were perceived in absolute terms of property, writers like cobb and jurists like judge ruffin of the north carolina supreme court emphasized that the enslaved were people, and as such, must have been subject to the strictest of disciplines. suffice it to say that the law of slavery, while not crystal clear on the extent to which the enslaved were viewed as simply property or things liminally placed between the worlds of humans and objects, explicitly barred the enslaved from the legal rights enjoyed by white men. 157 for scholars like gross, the answer may be negligible. as she argues, race was often recognized for its performative elements, i.e. you knew a white person not necessarily by what he or she looked like, but by the performances that white men and women were expected to play out. discussing bryan v. walton, a georgia supreme court case looking at whether certain freed men were black or not, gross explains, “race was not only something joseph and james were, it was something they did.” gross, supra note 26, at 53. “to be white was to act white: to associate with whites, to dance gracefully, to vote.” blood may have been the signified, but the signifiers were social acts. more than that, the signifiers of race were not only social and political but also prescriptive and legal. what did it mean to be a white man? it meant to be a citizen, a civic being, someone who could do certain kinds of things. in addition to the walton case, gross provides a number of courtroom examples highlighting the baseline for racial identity in performative terms. men who looked white and indulged the gestures and gesticulations of “white culture” like refined and honorable gentlemanly activity would not, in the end, receive the legal imprimatur of whiteness if they did not have a reputation for exercising white citizenship: the legal stuff of rights and privileges that actually constituted whiteness. the legal determination of race, in sum, was a combination of stereotypical ideas about physical characteristics, reliance on high-brow quackery, far-reaching perspectives on the transfer of “black blood,” and searches for approval of the racial identity by the community. notably, analysis of this fourth factor reveals an interesting circle between perceptions of citizenship and perceptions of race: if the physical manifestation of race was in doubt, whiteness was to be found in the performance of citizenship rights and the rites of citizenship. the infamous dred scott decision helped close the circle, by tautologically concluding that blacks could not be citizens because they had never performed these rites, i.e. the rites of white manhood. the question before the court, and articulated by justice taney, was whether the descendant of an african slave was a citizen of the united states, and thus capable of enjoying the rights and privileges associated with this legal status. in making its determination, the court looked to the laws passed both by federal and state governments (including the naturalization act of 1790 which explicitly stated that only whites could be naturalized as citizens of the united states) and found that nothing in the intent of the framers or their descendants ever established that the “negro race” was meant to be a part of the political community in the united states. the upshot of the rationale was that “negros” could not become citizens because they had never been allowed the rights of citizenship in the past, rights which had been considered the exclusive domain of the american political community. the status of whiteness required a capacity for citizenship, and the legal status of citizenship required whiteness. id. see also cheryl harris, whiteness as property, 106 harv. l. rev. 1707 (1993); sally ackerman, how the american legal system perpetuates racism as seen through the lens of property law, 21 hamline j. pub. l. pol’y 137 (1999); ian f. haney lopez, the social construction of race: some observations on illusion, fabrication, and choice, 29 harv. cr.-c.l. l. rev. 1 (1994). race as a legal concept vol. 2:1 36 an early nineteenth century example is hudgins v. wright, decided by the virginia supreme court in 1806.158 hudgins involved a claim by a girl seeking her freedom on the basis that she was descended from an american indian woman, and according to virginia law, should presumptively be understood to have been born free. if the claimant could successfully show that she was of american indian heritage, or “white,” the burden of proof would have shifted to the slaveholder to show that the grandmother had been american indian, and enslaved during a brief window when the united states had been in the business of legally enslaving indians. as judge tucker explained, “all white persons are and have ever been free in this country. if one evidently white, be notwithstanding claimed as a slave, the proof lies on the party claiming to make the other his slave.”159 subsequently, the thrust of the trial turned on the girl’s racial classification—indian or white— and in the course of figuring out this determinative question the court substantially relied on the “distinguishing characteristics of the different species of the human race. . . .”160 keeping in mind we are in 1806, when europe was beginning to see a polygenicist theory gaining ground, the court followed what was becoming a standard way of thinking about the varieties of human groupings. the question of the girl’s freedom therefore turned on the texture of her hair, width of her nose, and shape of her calf muscles. since hannah had long straight hair, she was deemed indian, and presumptively free. bloodlines were also increasingly important in figuring out the racial identity of a potential slave.161 the important point to keep in mind here, however, is that before the work of race science, this kind of physiological evaluation would have made no sense. jumping ahead several decades, and just before the american civil war and the emergence of evolutionary theory, the supreme court decided dred scott v. sandford.162 in this famous case scott, a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 158 hudgins v. wright, 11 va. 134 (1806). 159 id. at 139. 160 id. at 141. 161 though the hudgins court did not get into it, other factors typically used in determining racial status included scientific evidence, documentary evidence, and “reputation” evidence. of course, in a society in which white masters regularly impregnated their slaves, the “obvious” distinctions used in hudgins were, at best, difficult. in the case that the eyeball test proved unsatisfactory, the court would look to documentary evidence of relatives who may have had more “easily understandable” racial histories. to this end, courts used the infamous “one-drop rule” or rule of hypodescent. if a person had a black relative, no matter how remote, the staining power of the black blood made you black as well. another factor regarded the extent to which the relevant community, black or white, perceived the person in question as belonging to their racial group. it may have been especially damning, for example, for a group of people, clearly of the negro race, to claim that the person in question had always been regarded as one of their own. for discussion, see norman redlich, out, damned spot; out, i say. the persistence of race in american law, 25 vt. l. rev. 475 (2001); christine hickman, the devil and the one drop rule: racial categories, african americans, and the u.s. census, 95 mich. l. rev. 1161 (1997). 162 60 u.s. 393 (1856). it has often been pointed out how odd was the relationship that developed between “race” and “citizenship” in the antebellum period. though racial classifications had a scientific and biological gloss, judicial opinions in the face of the physically ambiguous invariably turned on social performance. this collapse brought with it a circularity as illustrated with the dred scott decision where whiteness was defined as citizenship and citizenship identified for its whiteness. unfortunately, the civil war failed to fully clarify this problem, despite the language on citizenship provided in the fourteenth amendment. this primarily came through with the fact that while all people born or naturalized in the united states would be deemed citizens, the language failed to provide insight as to who could be naturalized. again, the key issue on this front turned on whether the applicant could make a legitimate claim to being white. for a discussion on the legal mechanics of whiteness, see valerie babb, whiteness visible: the meaning of whiteness in american literature (1998); lópez, supra note 4; richard delgado & jean stefancic, critical white studies (1997). 2012 columbia journal of race and law 37 slave taken by his owner from missouri to illinois for a time and brought back to missouri for sale, claimed to be a citizen of missouri and whose residency in a free state nullified his status as a slave. in a striking defense of the racial contract, the court explained that the basic issue was whether “persons only whose ancestors were negroes of the african race, and imported into this country . . .” could ever be “citizens of a state, in the sense in which the word citizen is used in the constitution of the united states.” did racial identity preclude certain groups from enjoying the basic rights afforded by the constitution? the answer was yes. “we think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the constitution. . . . on the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race. . . .”163 the answer was deducible directly from the fact of racial identity. it is hard to imagine a cleaner use of a scientific rationale, embodied here in a set of background rules, for the racial contract. after the civil war and the end of slavery, the reconstruction amendments set the stage for a new round of legal thinking about racial classifications,164 but a round of thinking just as committed to a biologized set of background rules of race. to be sure, the arguments would differ from the likes found in hudgins and dred scott, but the important issue here is the common biological ground between pre and post-civil war thinking about race law. in relevant part, section 1 of the fourteenth amendment provides that: all persons born or naturalized in the united states, and subject to the jurisdiction thereof, are citizens of the united states and of the state wherein they reside. no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.165 the amendment does not mention the word “race,” and taken at face value, could even be interpreted as doing away with the whole idea of race altogether. if you are a “person,” then you have certain rights.166 instead of a race-less law of human rights,167 the next phase was the jim crow era in which a scientific idea of race played a hugely important part. after the brief experiments in reconstruction were brought to a close, american race law hit its separate-but-equal stride, in step with the increasingly !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 163 dred scott, 60 u.s. 393, 404–05. 164 see generally eric foner, reconstruction: america’s unfinished revolution (1988). some instances of the judiciary’s early encounter with post civil war legislation include the slaughterhouse cases, 83 u.s. 36 (1873); united states v. reese, 92 u.s. 214 (1875); united states v. cruikshank, 92 u.s. 542 (1876); strauder v. west virginia, 100 u.s. 303 (1879); the civil rights cases, 109 u.s. 3 (1883); yick wo v. hopkins, 118 u.s. 356 (1886). derrick bell has reported that “in the first seventy years of the amendment, the court struck down 232 state laws pursuant to its commands; 179 of these cases were decided in favor of corporations—including 55 cases in favor of the burgeoning railroad industry. bell, supra note 25, at 47. 165 u.s. const. amend. xiv. 166 for discussion of the fourteenth amendment in historical context, see kenneth stampp, the era of reconstruction, 1865–1877 (1965); w.e.b. dubois, black reconstruction in america (1964); leon litwack, been in the storm so long: the aftermath of slavery (1969); derrick bell, the racial imperative in american law, in the age of segregation: race relations in the south, 1890–1945 (robert haws ed., 1978). 167 human rights law, of course, would go on to have its own problems, and really could hardly be “raceless.” for critical discussion, see makau matua, human rights: a political and cultural critique (2002). race as a legal concept vol. 2:1 38 popular work in eugenics discussed above, which also had as its aim the separation of the races. in 1896, the supreme court decided plessy v. ferguson,168 which assessed the constitutionality of a state law providing for the separation of blacks and whites in their use of the rail system. the court found no problem with the law, because it merely recognized a fact of human nature: “a statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude.”169 consequently, for some time questions about the natural differences of racial classifications were built into the underbelly of the citizenship and equal protection clauses.170 given the period in which the courts were making these decisions, where race science was developing some of its most caustic views about the hierarchy of the races, this attitude seems pretty sensible for the time. this sense in which social evolutionary and eugenicist styles of thinking about racial classifications played into judicial elaborations of the fourteenth amendment shifted, however, along with the same shift happening at the same time as the concept of race started coming under attack in the first half of the twentieth century. in other terms, this can be described as a shift from a classic liberal focus on strong background rules to a modern liberal style that would de-emphasize the importance of background rules and assert a need for government to protect racial identity from arbitrary discrimination. b. the modern liberal style: from brown to affirmative action recall from above that even before wwii, scientists were mounting increasingly aggressive attacks on the scientific basis of race, and that after the war and the exposure of nazi treatment of the jews, eugenics fell out of favor altogether. scholars like huxley, haddon, and montagu argued that the concept of race had been constructed and abused, and that much of the baggage associated with so!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 168 163 u.s. 537 (1896). like dred scott, plessy has generated an enormous amount of commentary. one wellknown example is cheryl harris’ article whiteness as property. harris, supra note 157, at 1750. (“plessy demonstrated the court's chronic refusal to dismantle the structure of white supremacy, which is maintained through the institutional protection of relative benefits for whites at the expense of blacks. in denying that any inferiority existed by reason of de jure segregation, and in denying white status to plessy, ‘whiteness’ was protected from intrusion and appropriate boundaries around the property were maintained.”). 169 163 u.s. at 543. 170 another way in which the racial contract appeared to continue its performance, however, was in the context of just how it was exactly that naturalization really worked. ian haney lopez has chronicled the evolution of this question through what he calls the “prerequisite cases” spanning from 1878 to 1952, when the requirement only “whites” could be u.s. citizens was finally expunged from u.s. naturalization law. in re ah yup, for example, was a case decided in 1878 by a federal court wrangling with the question of whether a chinese residing in the united states was white. 1 f. cas. 223 (c.c.d. cal. 1878). after a great deal of thinking about the state of race science, the court finally concluded that chinese were not white, and consequently barred from citizenship. like most of these decisions, the court came to the incoherent conclusion that yup was not white. this is not to say that yup should have been found to be white, but that the court was unable to offer any meaningful standard for its decision. interestingly, courts were apparently unable to use the arguments against asians that they had used against blacks: asians could not be american citizens because they had never exercised the rights and rites of american citizenship. presumably the logic of an earlier moment, illuminated in the context of immigration, became too ridiculous even for federal judges. this determination resembled the sorts of judicial analysis found in hudgins, including physical determinations, and the identification of certain kinds of documentary and scientific evidence as probative of racial status. for discussion on relevant aspects of the asian experience in american law, see asian americans in race and races (juan perea & richard delgado eds., 2000). 2012 columbia journal of race and law 39 called racial physiology was a sham. the critical point here, however, is that while race science was fast becoming more progressive, the natural conception of race—background rules—was never abandoned, but merely “cleaned up.” race was real and natural enough, it was simply that it had been wrong to make too many assumptions about just what race really meant in social, economic, cultural, and intellectual terms. it is in the climate of this phase of race science that we can situate chief justice stone’s famous footnote 4 in united states v. carolene products.171 decided two years after huxley and haddon’s we europeans, but still in the dense thicket of jim crow, the opinion set the stage for heightened judicial scrutiny over legislation attempting to regulate on the basis of “suspect classifications.” interestingly, the footnote’s text did two things at once. on the one hand, it reinforced the idea that race was a natural, human fact, just as much of progressive race science was doing. stone’s footnote suggested that statutes seeking to regulate “discrete and insular minorities,” including “racial minorities,” should be analyzed by the judiciary with strict scrutiny.172 stone’s reasoning was based on the unfairness of arbitrarily discriminating against racial groups since racial identity was a fact of one’s humanity outside of their control. blackness, a minority racial status, was discrete, immutable, and most definitely natural and prepolitical, and discrimination on such bases seemed fundamentally unfair. on the other hand was whiteness—soon to be vanquished in naturalization law by congressional action—which was not a minority status, not intuitively susceptible to the strict scrutiny analysis, and largely transparent—legally, racially, biologically, and socially. in short, whiteness was an abstract mess of a concept, as evidenced by the prerequisite cases, while blackness had emerged as something not necessarily determined by the absence of white privilege and citizenship, but inherently natural and real.173 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 171 304 u.s. 144, 152 (1938). i do not mean to suggest here that carolene products is necessarily the place to begin in an elaboration of race in the modern liberal style. the use of the opinion lies in its embrace of an attempt to depoliticize but retain a natural idea of racial identity—an attempt that would soon be consolidated after brown. for discussion of carolene products, see, e.g., daniel a. fricker & philip p. farber, is carolene products dead?: reflections on affirmative action and the dynamics of civil rights legislation, 79 cal. l. rev. 686 (1991). in the main, my analysis follows the kind of periodizing found in works like howard winant’s the world is a ghetto. winant, supra note 3. there, winant suggests that before world war ii “the social fact of racial inequality and thoroughgoing racial difference was taken for granted . . . in the ruling circles—the metropoles, the world’s capitals both imperial and peripheral—it was taken for granted as natural, ineluctable, an objective reality, that to be white (however that is defined) conferred a deserved advantage on those so identified, while a dark skin properly signified inferiority. the name for this set of beliefs, this racial ideology, is white supremacy.” id. at 1. in the context of law, i have been suggesting that white supremacy has been traditionally performed in the style of classic liberalism. according to winant, it was in the period after world war ii that the “ironic view emerged that we are now in a post-racial, color-blind world . . . race-talk today presents itself as egalitarian, respectful of ‘cultural difference,’ and, above all, humane. the appearance and consolidation of such postracial sentiments is a recent phenomenon; it has reshaped contemporary understanding and debates over race.” id. at 1– 2. in the context of law, i argue here that in the postwar period there are two dominant paradigms at work—modern liberalism and neoliberalism. both of these approaches reject the classic view of white supremacy, namely, that there racial inequality is inherent in racial identity. where modern liberalism and neoliberalism part ways is in their differing approaches to foreground rules, i.e. regulation. 172 as neil gotanda has explained, strict scrutiny analysis developed in different directions. in the context of “historical-race,” strict scrutiny was used as a tool of anti-subordination, striking down the use of racial classifications when they were in the classic liberal style. in the context of “formal-race,” strict scrutiny isn’t necessarily focused on historical subordination, but is rather directed to the use of any racial classifications whatsoever. gotanda suggests that brown and its immediate progeny are illustrations of strict scrutiny in the context of historical-race, and metro broadcasting and croson are examples of strict scrutiny in the context of formal-race. gotanda, supra note 13, at 46–50. 173 for discussion, see lopez, white by law: the legal construction of race (2006). as adrienne davis has explained, the mystification of white identity has resulted in a deep incongruity between the conceptual utility race as a legal concept vol. 2:1 40 as is well known, american anti-discrimination law as it emerged in the middle decades of the twentieth century embraced this background view of race as a natural and scientifically verifiable concept, but hoped to clean it out of its obviously pejorative connotations.174 no other case stands as much of a representative as brown v. board of education.175 the issue of whether “separate but equal” was tenable under the equal protection clause was handled by the warren court in splendid consistency with the race science of the time.176 yes, the court understood well enough that racial varieties did exist in the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! of the terms “black” and “white.” i routinely ask the students to define “black culture.” a variety of attributions pour out: emotion and soul, instinct and intuition, violence and passion, drive and pride, spirituality and strength. yet when i ask for the cultural attributes or meaning of “white culture” the students are stumped, sometimes disturbed. i have yet to have a student attach a meaning that is not a stand-in for a more specific class-based or ethnic culture rather than a more broad-ranging racial culture of whiteness. after six seminars, whiteness (unmodified) has remained devoid of content in my classroom. 174 as critical race theorists have long argued, this has been a challenging task. in a seminal account, allan freeman discussed how anti-discrimination law included two perspectives about racial justice, the victim perspective and perpetrator perspective. the perpetrator perspective sees racial discrimination not as conditions but as actions, or series of actions, inflicted on the victim by the perpetrator. . . . in its core concept of the “violation”, antidiscrimination law is hopelessly embedded in the perpetrator perspective. its central tenet, the “antidiscrimination principle”, is the prohibition of race-dependent decisions that disadvantage members of minority groups, and its principal task has been to select from the maze of human behaviors those particular practices that violate the principle, outlaw the identified practices, and neutralize their specific effects. antidiscrimination law has thus been ultimately indifferent to the condition of the victim . . . . alan david freeman, legitimizing racial discrimination through antidiscrimination law: a critical review of supreme court doctrine, 62 minn. l. rev. 1049, 1054 (1978). the literature that has followed is large. see, e.g., j.m. balkin, the constitution of status, 106 yale l.j. 2313 (1997); reva siegel, discrimination in the eyes of the law: how “color blindness” discourse disrupts and rationalizes social stratification, 88 cal. l. rev. 77 (2000); ian f. haney lopez, a nation of minorities: race, ethnicity, and reactionary colorblindness, 59 stan. l. rev. 985 (2007). 175 347 u.s. 483 (1954). among the first, if not the first, critical reviews of brown from the left was derek bell’s brown v. board of education and the interest convergence dilemma, 93 harv. l. rev. 518 (1980). instead of affirming the conventional wisdom about a change in consciousness, bell argued for a more systemic view of what brown signaled in the light of racial hierarchy. “i contend that the decision in brown to break with the court’s long-held position on these issues cannot be understood without some consideration of the decision’s value to whites, not simply those concerned about the immorality of racial inequality, but also those whites in policy-making positions able to see the economic and political advances at home and abroad that would follow abandonment of segregation.” id. at 524. more recently, as part of a symposium on brown fifty years on, richard ford argued how a focus on brown has often misled those seeking progressive social change and directed them away from where the action really is—the focus on brown has often perpetuated a false distinction between official segregationist policy and natural preference: what confronts us, then, is not an inevitability but a choice. if the defenders of neighborhood schools and of multiculturalist policies wish to justify a decision to promote segregation, either as a good thing in its own right or as an acceptable means to some other good end, let them do so. but let them not claim a false necessity. let them take responsibility for their preference rather than insist that it is ordained by human nature or by the nature of our inherited social institutions and social divisions. richard ford, brown’s ghost, 117 harv. l. rev. 1305, 1308–09 (2004). 176 as is well known, the court in brown relied in part on the psychology studies of kenneth and mamie clark. the clarks testified in brown and prior cases regarding the psychological impact of segregation on children, with a particular focus on how segregated education instilled a sense of inferiority in black children. citing clark’s work, chief justice warren stated: 2012 columbia journal of race and law 41 natural world—the old classifications supporting the racial contract were valid enough. but what had changed was a recognition that there was very little if anything that should be deduced about the intellectual, cultural, or moral standing of a person on account of their racial identity. the doctrine of separate but equal in the context of public education, the court concluded, was inconsistent with this recognition, now to be understood as embodied in the fourteenth amendment.177 after brown, a great deal changed as the civil rights era hit its stride. courts were instructed to dismantle segregation with all deliberate speed, congress adopted the civil rights act of 1964 and its attendant stash of new statutory rights, and the old idea that racial classifications could be used to explicitly disadvantage racial minorities was entirely discredited.178 this was the coming into high fashion of a modern liberal style of race. for far too long had the relations between races been allowed to persist on the idea that humans could be judged on the basis of their racial identity. in contrast, politicians and judges agreed about the need to regulate race, disallowing preferential treatment that disadvantaged certain people on the basis of biology. there was nothing about race, it turned out, that could actually tell us anything about how to arrange social relationships. thus, while the biological nature of race was retained, it was simply that instead of understanding biology to be a warrant of hierarchy, the modern liberal style understood biology to mean that racial discrimination was unjust. the creation of new rules would therefore be necessary to ensure that discrimination would be punished, and these were foreground rules—rules understood to regulate a pre-legal concept of race, and not rules that actually constituted race as a legal concept. c. the neoliberal style: the road to parents involved as one might guess, the fashionable sense of brown in the modern liberal style was sure to wane. the famous case of regents of university of california v. bakke179 is illustrative of a new trend that would !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! segregation of white and colored children in public schools has a detrimental effect upon the colored children. the impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. a sense of inferiority affects the motivation of a child to learn. segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system. whatever may have been the extent of psychological knowledge at the time of plessy v. ferguson, this finding is amply supported by modern authority. any language in plessy v. ferguson contrary to this finding is rejected. 347 u.s. at 494–95. 177 for a discussion of the debate over brown in parents involved, see christopher w. schmidt, brown and the colorblind constitution, 94 cornell l. rev. 203 (2008). 178 id. 179 435 u.s. 265 (1978). cheryl harris has said of the bakke decision: [c]ontemporary understandings of equality owe a great deal to justice powell’s opinion in bakke—an opinion remarkable for its enduring presence, prescience and at least for some decades, its influence. it is also remarkable for its schizophrenic treatment of group identity—for both seeing and not seeing race. while powell recognized and affirmed the significance and importance of considering race in admitting a diverse class, the remainder of his opinion functioned to repudiate the legitimacy and efficacy of substantive interventions by the state to remedy the unequal distribution of power under the current racial status quo because of the incoherence of racial identity. cheryl harris, equal treatment and the reproduction of inequality, 69 fordham l. rev. 1753, 1768 (2001). see also bridgette baldwin, colorblind diversity: the changing significance of race in the post-bakke era, 72 alb. l. rev. 863 (2009). race as a legal concept vol. 2:1 42 sow the seeds for the supreme court’s current post-racialism—the turn away from a distinct political interest in protecting racial minorities and towards a neutral equal protection concerned with the use of racial classifications.180 the case involved a special admissions program initiated at the university of california at davis medical school, wherein applicants with particular “disadvantages”—in relevant part applicants belonging to racial minorities—were given preferences in the admissions process. bakke was a white male who sued the university after it had twice rejected him, claiming that he had been rejected on the basis of his racial identity in violation of title vi of the civil rights act and the fourteenth amendment’s equal protection clause. writing for a plurality of the justices, justice powell made two pivotal moves setting in motion the court’s current post-racial project. first, powell treated the concept of race as a natural mark of human identity, and not as a social or political force. this is evident in his decision to view the prohibitions of the civil rights act as applicable to all human beings living in the united states, and not as regulations meant to undermine the terms of the racial contract—terms that were highly relevant in the subordination of one class of people at the expense of another. “the special admissions program is undeniably a classification based on race and ethnic background. to the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status.”181 what is important to keep in mind here is that if race was not understood biologically (and therefore neutrally), but rather politically, powell’s argument wouldn’t make any sense. creating a special admissions program to help undermine racial disparities, in light of the racial contract and an understanding of the history of the term “race,” does not draw a line on the basis of race. in fact it does something like the opposite. to think that racial classifications necessarily have something to do with individuals being regulated on the basis of biological characteristics is also to think that racial identity can function as a neutral, natural descriptor of social life. when powell stated, “the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color,” he was right only if race is understood in its biological sense. if it is understood in its political sense, meaning, “race” is not a facet of human ancestry but is rather a political term referencing a deeply embedded scheme of dominationsubordination, powell was wrong: the guarantee of equal protection would in this sense actually require an affirmative action law that treated the races differently. if we think of race as a verb—a tool with which to justify the superiority of whites over non-whites—then powell’s vision of equal protection jurisprudence was incoherent. when race is seen as a kind of political action, and not as a kind of natural description of human beings, the notion of “reverse discrimination” becomes a logical impossibility.182 the second important move was to eliminate attempts by state actors to redress general trends in racial oppression through the sorts of special programs u.c. davis had implemented. the only form !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 180 richard ford, racial culture (2006). 181 bakke, 435 u.s. at 289. 182 id. at 289–90. for an overall treatment of the affirmative action debate, see generally charles lawrence iii & mari matsuda, we won’t go back: making the case for affirmative action (1997). for an argument regarding the plausibility of reverse racial discrimination, see john hart ely, the constitutionality of reverse racial discrimination, 41 u. chi. l. rev. 723 (1974). 2012 columbia journal of race and law 43 of discrimination that could warrant such action was an explicit instance of constitutional violation.183 the only justification for using racial preferences, justice powell explained, was the interest an institution had in maintaining a diverse student body. the court’s preference for a paradigm of racial diversity over racial justice would prove critical to the future of this jurisprudence. what was lost was the view supporting the concurring opinion of justices brennan, white, marshall, and blackmun: against this background, claims that law must be “color-blind” or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. this is not to denigrate aspiration; for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. yet we cannot—and, as we shall demonstrate, need not under our constitution or title vi, which merely extends the constraints of the fourteenth amendment to private parties who receive federal funds—let color blindness become myopia which masks the reality that many “created equal” have been treated within our lifetimes as inferior both by the law and by their fellow citizens.184 in one of the most anticipated decisions in the recent history of american race law, grutter v. bollinger185 brought the supreme court in 2003 to the edge of abolishing affirmative action. the issue in that case involved the admissions policy at the university of michigan law school, and the claim by a “white” michigan resident (3.8 gpa, 161 lsat) who had applied to the school and had been rejected. her claim was that she had been rejected on the basis of her race, in violation of the fourteenth amendment, title vi of the civil rights act, and section 1981.186 following its established precedent, the court asked whether the law school’s interest in promoting “diversity” was a compelling interest that could justify a narrowly tailored policy of using racial identity as a factor in its admissions !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 183 bakke, 435 u.s. at 301. 184 id. at 327. a great deal happened in the interim between bakke and grutter, including decisions in wygant v. jackson board of education, 476 u.s. 267 (1986) (holding that a school board’s policy of extending preferential protection against layoffs to some employees because of their minority race violated the fourteenth amendment); city of richmond v. croson, 488 u.s. 469 (1989) (holding a city’s plan requiring prime contractors awarded city construction contracts to subcontract at least 30% of the dollar amount of each contract to one or more “minority business enterprises” was violation of the fourteenth amendment because the city failed to demonstrate a compelling governmental interest justifying the plan and the plan was not narrowly tailored to remedy effects of prior discrimination); metro broadcasting v. f.c.c., 497 u.s. 547 (1990) (holding fcc order awarding enhancement for minority ownership in proceedings for new licenses and a minority “distress sale” program permitting certain existing radio and television stations to be transferred only to minority controlled firms was not violation of fifth amendment because the policies did not violate equal protection principles, were substantially related to achievement of legitimate government interest in broadcasting diversity; and did not impose impermissible burdens on nonminorities); adarand constructors, inc. v. pena, 515 u.s. 200 (1995) (holding that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by reviewing court under strict scrutiny, overruling metro broadcasting; in this case a subcontractor who was awarded guardrail portion of federal highway project under federal program designed to provide highway contracts to disadvantaged business enterprises had standing to seek forward-looking declaratory and injunctive relief and case remanded to determine whether program satisfied strict scrutiny). 185 539 u.s. 306 (2003). for sample discussions of the case, see generally girardeau a. spann, the dark side of grutter, 21 const. comment. 221 (2004); bryan fair, taking educational caste seriously: why grutter will help very little, 78 tul. l. rev. 1843 (2004); andre douglas pond cummings, grutter v bollinger, clarence thomas, affirmative action and the treachery of originalism: “the sun don’t shine here in this part of town,” 21 harv. blackletter l.j. 1 (2005); ian ayres & sydney foster, don’t tell, don’t ask: narrow tailoring after grutter and gratz, 85 tex. l. rev. 517, 583 (2007). 186 539 u.s.at 322. race as a legal concept vol. 2:1 44 decisions.187 with justice o’connor writing the majority opinion, the answer was yes. despite a trend in supreme court decisions since bakke implying that the only compelling interest a state actor might have in using racial classifications for affirmative action was to combat explicit instances of past discrimination, o’connor argued for the compelling interest in achieving diversity in public higher education.188 the appropriate sort of diversity, however, was not the racial kind. if the law school’s admissions policy had intended to guarantee that a specific portion of the student body was non-white, this “would amount to outright racial balancing, which is patently unconstitutional.”189 “rather, the law school’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.”190 and not racial diversity, but a kind of cultural diversity much more broadly conceived.191 further, justice o’connor determined that the policy had been narrowly tailored since it used race only as a “plus” in a very “flexible” decisional matrix—the policy avoided mechanical racial quotas.192 there is no doubt that the court continued to abide by a background rule instructing the jurist to see racial identity as a natural and immutable characteristic of human beings. after all the class certified by the district court included those that had applied in the relevant period, and “were members of those racial or ethnic groups, including caucasian, that defendants treated less favorably…”193 if the court did not have a fixed and predictable concept of race in mind, there would have been a question about whether the claimant was actually white. if the law school had decided to challenge her standing, for example, and argue that she had not been injured by the policy because she had failed to prove she was “caucasian,” what forms of proof would have satisfied the court? “cultural performance”? as long as these sorts of standing questions are left in abeyance, decisions like grutter are able to proceed. despite the valorization of diversity here, it wasn’t at all clear that grutter was a victory for affirmative action advocates. the opinion was not intended as an intervention in race relations at all. to the contrary, the court’s allowance of a broadly conceived idea of “diversity” as a justifiable ground for michigan’s admissions policy was seriously hedged. “we are mindful, however, that ‘a core purpose of the fourteenth amendment was to do away with all governmentally imposed discrimination based on race.’”194 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 187 id. 188 id. at 328. 189 id. at 330. 190 id. 191 for a more optimistic view of the grutter court’s view of racial diversity, see michelle adams, stifling the potential of grutter v. bollinger: parents involved in community schools v. seattle school district no. 1, 88 b.u. l. rev. 937 (2008). adams suggested, however, that much of grutter’s “expansive and unfettered possibility” was stifled, though not destroyed, by parents involved. id. at 940–41. 192 539 u.s. 306, 335 (2003). 193 id. at 316. 194 id. at 341 (quoting palmore v. sidoti, 466 u.s. 429, 432 (1984).). constitutional jurisprudence is distinctly individualistic in its orientation, as justice o’connor made clear in grutter: “because the fourteenth amendment ‘protect[s] persons, not groups,’ all ‘government action based on race—a group classification long recognized as in most 2012 columbia journal of race and law 45 consequently, the court believed, all forms of race-conscious affirmative action “are potentially so dangerous that they may be employed no more broadly than the interest demands. enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.”195 “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”196 if the portents were ominous in grutter, we can see the wheels beginning to come off the bus in the supreme court’s 2007 voluntary integration decision,197 parents involved in community schools198—a case in which, as derrick bell has charged, “[t]he supreme court declared unconstitutional race-conscious admission and transfer plans that for the past five decades had been vital to eradicating segregation, facilitating integration, and preventing resegregation.”199 similarly, charles lawrence, iii has said of the case: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection has not been infringed.’” id. at 326 (quoting adarand constructors, inc. v. peña, 515 u.s. 200, 227 (1995). see also kenneth l. karst, the liberties of equal citizens: groups and the due process clause, 55 ucla l. rev. 99 (2007). 195 539 u.s. at 342. 196 id. at 343. 197 erwin chemerinsky has argued that parents involved might actually signal a coming overruling of grutter’s more permissive tone: more generally, the court’s decision signals that it may only be a matter of a short time before the court reconsiders and overrules grutter v. bollinger. in that decision, four years ago, the supreme court held that colleges and universities have a compelling interest in having a diverse student body and may use race as one factor in admissions decisions to achieve diversity. grutter was a 5–4 decision, with justice o’connor writing a majority opinion joined by justices stevens, souter, ginsburg, and breyer. chief justice roberts’ plurality opinion in parents involved emphatically espouses the view that the government must be colorblind in its decisions. the opinion leaves no doubt where he and justice alito will be when grutter is reconsidered. moreover, from a doctrinal perspective, justice o’connor’s majority opinion in grutter said that the government did not have to prove that no race neutral alternative could achieve diversity, whereas all five justices in the majority in parents involved said that this is the government’s burden. erwin chemerinsky, turning sharply to the right, 10 green bag 2d 423, 428–29 (2007). 198 551 u.s. 701 (2007). the most recent case pushing the ball forward in this terrain is ricci v. destefano, 557 u.s. 557 (2009) (holding that the city’s refusal to certify results of a promotional examination for firefighters, based on belief that its use of results could have disparate impact on minority firefighters, was a violation of title vii’s disparatetreatment prohibition absent some valid defense; before an employer can engage in intentional discrimination for asserted purpose of avoiding unintentional disparate impact, the employer must have strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take race-conscious action. in this case city officials lacked strong basis in evidence to believe that examinations were not job-related and consistent with business necessity or that there existed equally valid, less-discriminatory alternative to use of examinations that served city's needs but that city refused to adopt). 199 bell, supra note 25, at 73. from a different angle, james ryan suggested that the problem with parents involved was more symbolic than anything else. on the one hand, this decision does not change much on the ground. the truth is that racial integration is not on the agenda of most school districts and has not been for over twenty years. modern education reform efforts might still share the goal of equalizing educational opportunities for race as a legal concept vol. 2:1 46 i’d sat in my office and listened to the oral argument. i could hear the court majority’s commitment to white supremacy, as much in their voices as in the content of their questions. i could have written chief justice roberts’s opinion that very day-the rape of brown v. board of education and the claim that she had consented, the assault on her already badly beaten body, and the defamation of her principles and of those who had labored for her birth. i could see it coming like a tidal wave, like the torches of the klan riding in the night.200 in this much-maligned case, the court adjudicated the constitutionality of plans regarding racial diversity in the assignment of slots of various high schools in particular school districts in seattle, washington, and louisville, kentucky.201 writing for the majority, chief justice roberts repeated the constitutional mantra: whenever a public actor administers a racial classification, it will be viewed with strict scrutiny, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! minority students, which the court in brown embraced. but integration is not generally the means of choice to achieve that goal, nor is the supreme court the key arena. advocates and reformers have turned their attention elsewhere, and today battles are waged in legislatures and in state courts over school funding, school choice, standards and testing, and access to preschool. the dominant question, moreover, is which of these reforms will improve academic achievement as measured primarily, if not exclusively, by standardized test scores. the idea that schools should also teach students from diverse backgrounds how to cooperate in preparation for citizenship, like the idea of integration, has been pushed into the background. james e. ryan, the supreme court and voluntary integration, 121 harv. l. rev. 131, 132 (2007). ryan then shifted gears: yet many who believe in the goal of integration, including myself, cannot help but feel a sense of loss and betrayal. in part this is a reaction to the plurality's astonishing attempt to rewrite the history of desegregation and to use brown as a justification for blocking efforts to integrate schools. but it goes deeper than that. the court certainly has not done all it could to encourage integration in practice, but in the past it seemed to support the goal of integration. at the very least, it was not hostile. in parents involved, however, the court seems to have changed its mind. instead of encouraging the pursuit of a worthwhile goal, four justices make the goal itself seem dastardly, while justice kennedy accepts the goal but voices intense distaste over the most straightforward means of achieving it. id. at 133. in a subsequent commentary, j. harvie wilkinson iii provided a far more approving view: in an important sense, the holding in parents involved is in fact liberating. while the ruling restricts the use of race in public decisions, it ironically frees americans to think about people and their problems in less rancorous ways. we are freer now to look at education, job training, health care, and the rest as human needs to be addressed wherever any child of any race is receiving substandard schooling, and wherever any elderly american of any ethnic background is without the shelter, nourishment, or medical attention necessary to live in basic dignity. race and religion are the great potential dividers in america—just as the establishment clause inhibits governmental preferences based on religion, the fourteenth amendment inhibits governmental preferences based on race. parents involved helps in a small way to fortify the basic social compact: that the suffering of each is a challenge for all, and that the walls and fences often built by governmental actions based on race must yield, however haltingly, to a nation of shared purpose and ecumenical heart. j. harvie wilkinson iii, the seattle and louisville school cases: there is no other way, 121 harv. l. rev. 158, 164 (2007). 200 charles lawrence iii, unconscious racism revisited: reflections on the impact and origins of “the id, the ego, and equal protection”, 40 conn. l. rev. 931, 934–35 (2008). 201 for background on desegregation in schools, see generally jonathan fischbach, will rhee & robert cacace, race at the pivot point: the future of race-based policies to remedy de jure segregation after parents involved in community schools, 43 harv. c.r.-c.l. l. rev. 491 (2008). 2012 columbia journal of race and law 47 and survive constitutional review only when it serves a strong social need and it has been articulated in the narrowest of ways.202 more particularly, the conclusion that justice kennedy and the four justices in the roberts plurality (roberts, scalia, thomas, alito) agreed upon was that governmental action must be reviewed with strict scrutiny, even when the purpose is to achieve school desegregation—a conclusion that roberts claimed was supported by the decision in brown itself.203 the rationale behind what justice thomas coined the equivalence doctrine is as follows: all government acts that take race into account should be regarded with heavy suspicion, regardless of whether they are meant to help or harm minority groups, because racial identity is an immoral basis upon which to make a judgment about the worth of a person.204 or as the court put it in rice v. cayetano, “one of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”205 as sumi cho has stated with regard to this new breed of post-racial colorblindness, “the supreme court’s racial jurisprudence would lead one to believe that racial classifications are so toxic that, like chemotherapy, they should be utilized only when !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 202 justice kennedy provided the fifth, swing vote, lending some ambiguity to the forcefulness of the roberts opinion. a sample of justice kennedy’s thinking is here: school boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. these mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. parents involved, 551 u.s. 701, 789 (2007). for kennedy, the key factor is less a matter of governmental “race consciousness” or racial classifications, but more about whether a governmental intent to achieve some kind of integration or affirmative action actually harms white people. skeptical about the likelihood of a happy ending here, derrick bell wrote, “schools attempting to follow the nebulous standards set by the kennedy concurrence face a daunting challenge. they must tread a tightrope of achieving integration without appearing conscious of the race of their students. instead, schools will look to proxies for race, even where such proxies have proved impractical or ineffective in the past.” bell, supra note 25, at 81. for more discussion of kennedy’s concurrence, see siegel, supra note 21; heather k. gerken, justice kennedy and the domains of equal protection, 121 harv. l. rev. 104 (2007). in their dissent, justices breyer, stevens, souter, and ginsberg argued that strict scrutiny only made sense when government action was directed at the separation of the races, and not at their integration. 203 pamela karlan has suggested that roberts’ use of brown is mistaken at best. discussing an early critique of brown, herbert wechsler’s toward neutral principles, karlan argues that roberts appears to be invoking a rather bizarre defense of brown in light of wechsler’s original critique of brown. the problem here is not only that wechsler’s critique has long been completely discredited—the effort by the court doesn’t make any sense. see pamela s. karlan, what can brown do for you?: neutral principles and the struggle over the equal protection clause, 58 duke l.j. 1049 (2009); pamela s. karlan, the law of small numbers: gonzales v. carhart, parents involved in community schools, and some themes from the first full term of the roberts court, 86 n.c. l. rev. 1369, 1385–91 (2008). 204 528 u.s. 495, 517 (2000). see also chemerinsky, supra note 197, at 429. (“there is an irony in seeing the conservative majority interpret the equal protection clause as requiring colorblind government decision-making. these are the justices who profess the need to follow the original intent behind constitutional provisions. but if anything is clear about the congress that ratified the fourteenth amendment it is that it did not believe in colorblindness as a constitutional principle. it created numerous programs, such as the freedmen’s bureau, to provide benefits based on race and it voted to segregate the district of columbia public schools.”). 205 528 u.s. at 517. race as a legal concept vol. 2:1 48 absolutely necessary and, even then, must be used as sparingly as possible.”206 despite the “pernicious” character of using racial identity as a regulatory device, roberts explained that racial categories are still legitimate when they serve particular social interests.207 following grutter, there are two that pass muster: the interest in remedying the effects of past intentional discrimination, and the interest in supporting diversity in higher education. as for the former, roberts explained that there are no instances of intentional discrimination in either context to justify regulations cognizant of racial identity. seattle never had a segregated system that it now had a duty to fix, and while louisville had been segregated in the past, this was a problem that had already been solved. the allotment plans could therefore not be understood as remedying a very specific instance of prior discrimination. as for racial diversity, roberts relied heavily on justice o’connor’s discussion in grutter, arguing that racial diversity is appreciated only as one part of the broad array of considerations that go into what may be determined to be a diverse student body. as roberts explained, the grutter court emphasized that a university’s use of racial classifications would be “patently unconstitutional” if its purpose was merely to achieve “racial balance.”208 instead, racial classifications are legitimate only to the extent they are part of a much broader scheme that seeks to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints.”209 with regard to the two plans at bar, there had been no attempt whatsoever to embed racial diversity in a larger scheme of diverse interests. instead, there was a simple desire for a more equal number of white and non-white students at each of the high schools. since racial balancing is “illegitimate,” roberts concluded that there was nothing to save the validity of the programs. his rationale for denying the use of racial balancing (or racial diversity) was straight-forward: “allowing racial balancing as a compelling end in itself would ‘effectively assur[e] that race will always be relevant in american life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.”210 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 206 cho, supra note 16, at 1616. 207 see also goodwin liu, seattle and louisville, 95 cal. l. rev. 277, 282 (2007) (discussing the two types of social interest on the table: “broadly speaking, there are two goals that potentially support voluntary policies to integrate public schools. the first goal, interracial socialization, focuses on reducing racial prejudice and stereotypes, fostering cooperation and mutual respect, and strengthening the social fabric of our diverse nation. the second goal, educational equity, focuses on enhancing opportunities afforded to minority children too long relegated to racially isolated and inferior schools.”). 208 michelle adams has discussed the court’s analysis of “racial balancing” and what appears an attempt to conflate it with the concept of integration. “more globally, the plurality’s approach can be seen as an attempt to “rebrand” integration. conflating integration with racial balance downgrades its status as a societal ideal and sows definitional confusion, which discourages government actors from attempting to integrate at all. finally, the plurality’s approach lends credence to the idea that integration itself may be a discriminatory purpose. after all, if integration is synonymous with “racial balance,” and racial balance is “an objective th[e] court has repeatedly condemned as illegitimate,” then perhaps integration is too. the parents involved plurality raises profound doubts that integration is an objective the government should pursue. it is a significant step toward destabilizing the concept of ‘discrimination.’” adams, supra note 25 at 853. 209 for a discussion of the “white interest” in integration from the perspective of derrick bell’s interestconvergence theory, see generally robert a. garda, jr., the white interest in school integration, 63 fla. l. rev. 599, 629 (2011). 210 parents involved, 551 u.s. 701, 730 (2007) (quoting city of richmond v. croson, 488 u.s. 469, 495 (1989)). 2012 columbia journal of race and law 49 like grutter, parents involved operates on a biological conception that decenters the political content of race in such a way that discourse about cultural diversity becomes possible.211 there is no reference in the opinion, nor has there been in any supreme court opinion,212 to the sort of language found in ortiz v. bank of america: “i begin with the fact most widely agreed upon by modern biologists, anthropologists, and other students of human diversity. the notion of race is a taxonomic device and, as with all such constructs, it exists in the human mind not as a division in the objective universe.”213 though roberts hardly is explicit about the racial question (as very few court decisions are), the parents analytical framework clearly presumes that the kind of thinking about race in ortiz was wrong-headed. school boards in seattle and louisville sought to better integrate certain high schools, presumably on the belief that there is something valuable about the idea of racially integrated schools. that value might consist in all sorts of things, ranging from anti-racist attacks on the racial contract, to utilitarian arguments in favor of everyone being better off when more kinds of people are in contact with one another, to the desires to do justice with regard to a social system that systematically privileges certain people at the expense of others, to the desire of more powerful actors to neutralize potential threats through the use of relatively benign political strategies. whatever value might have been in the minds of the regulators, however, roberts very clearly believed that “racial balance” had nothing to do with power and domination, but was instead a question about the allocation of seats based on ancestry and heredity. following grutter, roberts was able to easily condemn the plan, suggesting that a willingness to find a desire to engage in racial balancing would assure the continued relevance of race in our minds—a relevance that we should all be determined to eliminate. cheerfully looking to a post-racial moment where race might be legally irrelevant, the perspective in parents is distinguished from justice o’conner’s hope in grutter that the law of affirmative action would have run its course in twenty-five years.214 this racial project’s bottom line is that we are already at or on the way towards a post-racial state of race relations, and that in this post-racial state there will be little place for a law of affirmative action that uses the natural ancestry of particular varieties of human beings as a regulatory device. postracialism in the court’s sense therefore trades heavily on the continued salience of race as a biological concept, though it is a post-racial framework that ultimately has little need for a legal regime specifically tailored to the problem of racism. this is a view of the world from the egalitarianism of the social contract, where racial identity is real enough but does not actually have any place. the problem, of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 211 see, e.g., howard winant, racial condition (1994) (discussing the contemporary racial project “decenter[ing]” race). 212 there is a common popular understanding that there are three major human races-caucasoid, mongoloid, and negroid. many modern biologists and anthropologists, however, criticize racial classifications as arbitrary and of little use in understanding the variability of human beings. it is said that genetically homogeneous populations do not exist and traits are not discontinuous between populations; therefore, a population can only be described in terms of relative frequencies of various traits. clear-cut categories do not exist. the particular traits which have generally been chosen to characterize races have been criticized as having little biological significance. it has been found that differences between individuals of the same race are often greater than the differences between the “average” individuals of different races. these observations and others have led some, but not all, scientists to conclude that racial classifications are for the most part sociopolitical, rather than biological, in nature. saint francis coll. v. al-khazraji, 481 u.s. 604, 614 n.4 (1987). 213 547 f. supp. 550, 565 (1982). 214 grutter, 539 u.s. 306, 343 (2003). race as a legal concept vol. 2:1 50 course, is whether it is the social contract, or the racial one, that actually better describes our world. as should hopefully be very clear from the discussion above regarding the origins of race science, it is the racial contract that provides the decisive answer. d. neoliberalism and neoracism as should be obvious, the supreme court’s post-racial project is not post-racial because it has positioned itself as a reaction to the demise of race science. there has not been any widespread realization that race was a giant hoax, and that as a consequence we now should all get along with the business of social progress. instead, it is a project that constructs its vision of race in light of particular social trends that seek to transform, for different reasons, the brown-era civil rights explosion. this is a post-racialism (1) predicated on a biological conception of race (background rules), (2) motivated by a belief that racism is, or already has, transformed into a social phenomenon no longer warranting legal regulation (foreground rules), and (3) that it is cultural diversity, and not race, that should be given legal attention, if need be. that is, beyond the egalitarian measures of equal protection, american law should see itself as on the way towards being entirely free of racial classifications. in contrast is a different kind of post-racial project.215 it goes by different names, but for ease of use i will follow etienne balibar,216 and more recently thomas mccarthy,217 in their descriptions of a contemporary phase of “neoracism.” in the classic sense, racism entailed the domination of europeans over non-europeans on the basis of identity via arguments about ancestry and physiognomy.218 this is the racism of the nineteenth and early twentieth centuries, until the end of jim crow and the postwar “break.” this is also the racism that the supreme court’s post-racialism has in mind. so what is it that is new, demanding a call for a “neoracism”? it is clear enough that the old rationales coming from science have been discredited, and we no longer tolerate laws that are facially discriminatory. perhaps instead of a neoracist phase, american society has instead simply progressed from harsher to more mild times? in 1988, balibar argued that racism had actually taken on “a new and lasting articulation of social practices and collective representations, academic doctrines and political movements.”219 this was a racism anchored no longer in biological heredity but in the supposed insurmountability of cultural differences, a racism which, at first sight, does not postulate the superiority of certain groups or peoples in relation to others but ‘only’ the harmfulness of abolishing frontiers, the incompatibility of life-styles and traditions.”220 one consequence of this shift from biology to culture was a weakening of the conventional modes of anti-racist strategy. from the outset, the new racism disarmed the critic who argued for the unfairness of discrimination on the basis of one’s ancestry—this was already acknowledged in the neoracist position.221 similarly, the new racism understood that it was unacceptable !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 215 i call a project oriented against neoracism a post-racial project only insofar as it is predicated on the understanding that race is not a real thing in the natural world. 216 balibar, supra note 20, at 17. 217 mccarthy, supra note 45, at 4–13. 218 id. 219 balibar, supra note 20, at 20. 220 id. at 21. 221 id. at 21. 2012 columbia journal of race and law 51 to make judgments about individuals, in terms of their intellectual capacity, on the basis of genetics. genetics had nothing to do with it. where the racist part came in was with the notion that it is appropriate to make discriminatory judgments on the basis of cultural difference.222 this was also a reversal of the conventional approach of the classic anti-racist, who had always attacked scientific racism from a multicultural perspective, arguing for the plurality and equality of cultures. through assertions about the ineluctable and unavoidable differences in culture, however, what became immediately clear was how biology had not been the only way to naturalize human proclivities: in the effort to essentialize culture, the neoracist mimicked the classic effort to naturalize race. the deployment of a cultural racism had another novel effect. since it began with a presumption about the unavoidability of cultural difference, the neoracist position was able to rationally advocate for the isolation of cultural entities—to insist on mixing them was to insist on fomenting ethnic conflict, balkanization, and the threat of civil war. as balibar cleverly put it, “by an astonishing volte-face, we here see [neo-racist] doctrines themselves proposing to explain racism.”223 it therefore turns out that among the most formidable proponents of neoracism are social scientists themselves, arguing for the necessity of respecting “the psychological and sociological laws of population movements; you have to respect the ‘tolerance thresholds,’ maintain cultural distances’ or, in other words, in accordance with the postulate that individuals are the exclusive heirs and bearers of a single culture, segregate collectivities.”224 neoracists are not the mystical gobineaus of the past, but the huntingtons of the present.225 balibar was writing more than twenty years ago. today, the sociological construction of race, and the shift from biology-based racisms to culture-based racisms are a commonplace in critical race theory. in fact, as michael omi and howard winant have suggested, the social construction of race, which we have labeled the racial formation process, is widely recognized today, so much so that it is often now conservatives who argue that race is an illusion. the main task facing racial theory today, in fact, is no longer to critique the seemingly ‘natural’ or ‘common sense’ concept of race—although that effort has not been completed by any means. rather the central task is to…argue against the recent discovery of the illusory nature of race; against the supposed contemporary transcendence of race; against the widely reported death of the concept of race . . . .226 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 222 id. at 22. see also winant, ghetto, supra note 3, at 2; steinberg, supra note 18, at 265 (“the discrediting of scientific racism is unquestionably one of the great triumphs of liberal social science. however, subsequent theorists developed a social-scientific variant of scientific racism that essentially substituted culture for genes. now it was held that groups that occupy the lowest strata of society are saddled by cultural systems that prevent them from climbing the social ladder. as before, failure is explained not in terms of social structures, but in terms endemic to the groups themselves.”). 223 balibar, supra note 20, at 22. 224 id. at 22–23. 225 see, e.g., samuel huntington, who are we: the challenges to america’s national identity (2004). 226 michael omi & howard winant, the theoretical status of the concept of race, in social theory: roots and branches 365 (peter kivisto ed., 2003). race as a legal concept vol. 2:1 52 in a neoracist context, and following omi and winant’s call, a legally situated racial project should focus on two things at once. first, it must grapple with the fact that race is a social fact, and that it has never been a biological one. as we have seen, this is a demanding task of the jurist who has been under a biological spell for centuries. it also continues to be a meaningful task, since the biologism of race seems incredibly difficult to dispel.227 second, it must translate the social reality of race into a jurisprudence that resists the urge to abolish race as a legal concept altogether. this post-racial project set on resisting neoracism must therefore push “race” away from its biological foundations without at the same time leaving a court in the lurch where it has no choice but to abandon the concept of race as impossibly incoherent. the emphasis on race as lacking biological foundations serves a purpose—it highlights the social character of race.228 it should not go further and be taken to argue that race actually has no existence at all. e. christi cunningham’s work is a good example of this, where she powerfully argues for the elimination of race as a mark of individual identity, but advocates for the use of race as an anti-racist legal strategy.229 paul gilroy’s attack on race sounds a similar tune: “to renounce race for analytical purposes is not to judge all appeals to it in the profane world of political cultures as formally equivalent.”230 one approach that has accompanied the “end of race” story has been to follow the likes of huxley and haddon, and substitute “ethnicity” or “culture” for race.231 alex m. johnson, jr., for example, has argued for years regarding the fictitious nature of race and the need to destabilize racial categories. with an aim of using multiracial categories in an effort to create a sort of “shade confusion” that will “eventually destroy the black/white dichotomy that currently exists, ultimately reducing race to a meaningless category, as it should be,”232 johnson’s argument is that racial classifications should eventually give way to the term “ethnicity.” unlike race, johnson sees ethnicity as “a positive category which offers empowering benefits to the classified group with little or no corresponding costs.”233 for johnson, ethnicity includes the cultural values of a particular community, and unlike the ostensibly immutable character of race, “ethnic identification can be shed and transformed when necessary. ethnic identification is learned and not visual.”234 initially, however, “one is born into an ethnic group and can !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 227 id. 228 see, e.g., reginald leamon l. robinson, the shifting race-consciousness matrix and the multiracial category movement: a critical reply to professor hernandez, 20 b.c. third world l.j. 231, 232–33 (2000); sharona hoffman, is there a place for “race” as a legal concept?, 36 ariz. st. l.j. 1093, 1094 (2004). 229 see, e.g., cunningham, supra note 70 (discussing a socio-cultural context of race as an identity marker). but see kwame a. appiah & amy gutmann, color conscious (1996) (advocating for the value of using race as an identity). 230 gilroy, supra note 2, at 52. 231 in terms of looking for a substitution, robert miles and malcolm brown ask, “even though cultural factors are embedded in the concept of ethnicity, there is still a boundary problem. where does one culture begin and another end? how many cultures are there? for these reasons, the concept of ethnicity, qua an inherent human attribute, while having the virtue of connoting socio-cultural norms rather than putatively biological characteristics, is as problematic as the concept of ‘race.’” miles & brown, supra note 20, at 95. thus, like alex johnson, miles and brown do see life in a concept of ethnicity. 232 alex m. johnson, jr., destabilizing racial classifications based on insights gleaned from trademark law, 84 cal. l. rev. 887, 891 (1996). 233 id. at 933. 234 id. at 943. 2012 columbia journal of race and law 53 only change that membership with difficulty.”235 consequently, “the use of ethnicity, rather than race, has the potential to destabilize fixed racial classifications with the goal of ultimately eliminating racial classifications in american society.”236 johnson’s effort to use ethnicity as a more socially robust legal category is hoped to undo the “reification of race in american society and the resultant costs of that reification—the continued existence of racialism.”237 this seems attractive so long as it avoids mimicking the biological essentialism that we have hopefully left behind,238 and which is what was described above as one of the basic moves in the neoracist position. as charles mills has argued, this is dangerous territory. shifting towards ethnicity or cultural diversity and away from race threatens to undermine anti-racist strategies by eliminating the proper orientation towards racial oppression. “the defining feature of racism, at least in its classic form, is not just the failure to recognize the equal worth of the culture of the racialized group but, more ominously, the failure to recognize their very humanity.”239 richard ford has made this point in racial culture, emphasizing how problematic the substitution of culture for race can really be. in his discussion of bakke, ford put his finger on how justice powell’s identification of diversity as the primary justification for affirmative action helped to crystallize the legal system’s fatigue in fighting racism. powell explained how the use of racial classifications were only legitimate when a state actor was combating specific instances of racial discrimination, not general social trends, and when those classifications were intended to further ethnic diversity. as we have seen, this dramatic shift in the jurisprudence away from a focus on racism and towards a focus on ethnic or cultural diversity was picked up and hammered home in grutter and parents involved.240 the problem has been that where we still have urgent needs in repairing the social effects of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 235 johnson, supra note 23, at 1582. 236 id. 237 id. see also alex m. johnson, jr., bid whist, tonk, and united states v. fordice: why integrationism fails africanamericans again, 81 cal. l. rev. 1401 (1993). 238 mills, supra note 45, at 94. 239 id. 240 see also lópez, supra note 4. for lópez, the race into ethnicity problem rests on five premises: i have argued that the rise of race-as-ethnicity rested on the following suppositions: first, race as such amounted to nothing more than superficial physical differences. second, ethnic groups nevertheless possessed distinctive cultures. third, racial domination lay defeated in the past, and no permanent dominant or subordinate groups remained. fourth, conflicts over interests and cultures produced and explained relative group success. fifth, antidiscrimination law dispreferred and even victimized “white” ethnic minorities. id. at 1028. lópez points out how in bakke, powell relied on an idea of the united states as a “nation of minorities” under the protection of the fourteenth amendment—an idea that had fallen out of favor until carolene products. id. at 1036. powell used ethnicity to rewrite the american history of race in the twentieth century. he disaggregated the white ‘majority’ into ‘various minority groups’ who ‘struggle’ against ‘prejudice,’ while converting racial minorities into groups that shared an identical american experience with white ethnics. the color-line erased, the united states now progressed harmoniously as a ‘nation filled with the stock of many lands,’ and the constitution gave equal concern to ‘all ethnic groups seeking protection from official discrimination.’ ‘ethnic groups’ in powell's usage constituted no casual race as a legal concept vol. 2:1 54 neoracism, courts have taught themselves to gaze elsewhere: into the hazy shade of a diverse and politically safe multicultural landscape. as ford has said, by describing racial subordination as in fact a problem of cultural difference, anti-racist strategies are transformed by multiculturalism from “what should be an indictment of social practices of exclusion and subordination into a plea for ‘tolerance’ of a ‘diversity.’”241 he adds, “in this light it would appear that a central function of ‘diversity’ is to finesse, if not obscure the salience of contemporary racism.”242 from ford’s critique of cultural diversity as a proxy for racial justice we are but a short step away from a different but equally as important critique: even if it were possible to see multiculturalism as an anti-racist strategy, we are still assuming that racial cultures actually have determinate content. after all, if the claim is that the seattle school board needed to have a greater interest in promoting diversity instead of fighting racism, there is obviously an assumption there about what essentially constitutes these different cultural groups. a long-standing view from cultural anthropology has it, as one would expect, that this assumption is fraught. annelise riles has commented that just as it is typical to think of conflicts between cultures, conflicts within the cultures themselves are just as common: “cultures are hybrid, overlapping, and creole: forces from trade to education to migration to popular culture and transnational law ensure that all persons participate in multiple cultures at once. cultural elements circulate globally, and they are always changing. from this point of view, ‘culture’ is more of a constant act of translation and re-creation or representation than it is a fixed and common thing.”243 the upshot of all this appears grim. anti-racist litigation strategies seem hemmed in from all sides. first, the jurist needs to understand that the biological foundation of race law is fictitious. this is important to emphasize not only because american race law appears to be continually under the spell of science, but because the biological argument is intrinsically connected to the use of race as a rationale for racial oppression. this is apparent in the way that the biological gloss on race enables the supreme court to consistently de-center its discussions of racial justice: since race is a natural mark, it should not be regulated. second, the jurist needs to understand how calls for racial diversity have persistently obscured calls for racial justice. the shift from race to culture or ethnicity more often than not yields a shift away from the concerns about the racial contract and towards the desires for pluralism. third, the jurist !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! synonym for race, but instead a heavily laden term signifying a conception of group dynamics in the united states in which racial hierarchy had ceased to operate. id. this argument led powell to the crucial move which would ultimately supply later courts with a resort to “reactionary colorblindness”: powell deployed ethnicity to locate all groups in the same position, that of temporary minorities similarly engaged in pluralist politics and facing the same levels of societal hostility—dand all deserving an identical level of judicial protection. because the united states contained not dominant and subordinate races but a welter of “ethnically fungible” groups, to paraphrase alan freeman’s critique, the constitution could make no distinction among the beneficiaries or victims of racial classification. id. at 1037. 241 ford, supra note 180, at 53. 242 id. at 52. 243 annelise riles, cultural conflicts, 71 l. & contemp. probs. 273, 285 (2008). 2012 columbia journal of race and law 55 needs to understand that while cultures are certainly real in the sociological sense, just as races are real, they are incredibly complex and impossible to analyze as a “totalizing explanatory device.”244 obviously, this seems like seriously tricky business. so where to go from here? the next part offers some suggestions. v. towards a critique of race as a legal concept: two ideas from conflict of laws in looking for a way beyond the court’s preoccupation with a neoliberal post-racialism, this part reimagines the court’s plurality decision in parents involved. in order to do so, we need to know how the present approach not only contrasts with justice roberts’ decision, but the dissenting opinions as well. as opposed to the neoliberalism animating the plurality opinion, justices breyer, stevens, souter, and ginsberg dissented in a clear articulation of the modern liberal style. did the constitution prohibit school boards in seattle and louisville from adopting raceconscious criteria to better integrate their school systems? of course not.245 writing for the dissenting justices, breyer found it easy to sustain the principle that the governmental use of racial classifications is permissible when it is intended to improve race relations, even when a municipality is under no obligation to do so. “that principle has been accepted by every branch of government and is rooted in the history of the equal protection clause itself. thus, congress has enacted numerous race-conscious statutes that illustrate that principle or rely upon its validity. . . . [this] view understands the basic objective of those who wrote the equal protection clause as forbidding practices that lead to racial exclusion. the amendment sought to bring into american society as full members those whom the nation had previously held in slavery.”246 as should be clear at this point, however, modern liberalism is just as committed to the use of a biological background rule as is neoliberalism. in moving from a welcoming posture towards regulation to the application of the standard, justice breyer noted the importance of being skeptical about the use of racial classifications. racial classifications still exist in relation to a natural idea about race, wherein the appropriateness of racial regulation is necessarily juxtaposed against the importance of allowing racial groups to be free of such regulations. thus, breyer’s choice for a more lenient form of scrutiny of the programs “would not imply abandonment of judicial efforts carefully to determine the need for raceconscious criteria and the criteria’s tailoring in light of the need. . . . in doing so, a reviewing judge must be fully aware of the potential dangers and pitfalls that justice thomas and justice kennedy mention.”247 and what are these dangers? according to thomas, “most of the dissent’s criticisms of today’s result can be traced to its rejection of the color blind constitution”248—a rejection that thomas suggests was pivotal in brown itself. as for justice kennedy, his concerns are telling. in describing one approach !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 244 id. 245 parents involved, 551 u.s. 701, 823–24 (2007). see also lani guinier, foreword: demosprudence through dissent, 122 harv. l. rev. 4, 13 (2008) (discussing the breyer dissent). 246 parents involved, 551 u.s. at 828–29. 247 id. at 836. 248 id. at 772. race as a legal concept vol. 2:1 56 to the problem of segregated schooling, kennedy described the view that sought the selection of raceconscious criteria as the direct solution to the problem of racial stratification. the problem with the raceconscious approach, kennedy explained, is that it presents dangers that can be avoided when segregation is dealt with “more indirect means.”249 and why can’t a school board approach the problem directly? what are the dangers? when the government classifies an individual by race, it must first define what it means to be of a race. who exactly is white and who is nonwhite? to be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. and it is a label that an individual is powerless to change. governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. the practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. on the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree. . . under our constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin.250 this passage is at once deeply puzzling and wonderfully indicative of a neoliberal conception of race. it is puzzling because kennedy seemed to be suggesting that “race-conscious measures” that do not rely on race are much better than “race-conscious measures” that do. what this means is a mystery, but the reason for making the distinction is not. in kennedy’s vision, individuals have a race that is naturally given, but they have the sovereign choice to define their own persona, “without state intervention that classifies on the basis of his race or the color of her skin.”251 kennedy clearly believes that people have racial identities, but it is up to the people themselves, and not the state, to make of those identities what they will—the last thing we need, kennedy counsels, is for the state to get into the business of saying who is white or nonwhite. the best thing is to go beyond race altogether, to go post-racial. kennedy therefore believes that there are races out there, but that racial classifications should be as limited as possible so as not to degrade the dignity of individual human beings. coming back to breyer, he clearly believed the ambit of race-conscious regulation to be broader than what was articulated in the opinions of roberts, thomas or kennedy. yet in keeping with the modern liberal style, he still characterized the appropriateness of such regulations in relation to the operative background rules—rules that tell us that our legal conceptions of race are always founded on a natural presumption of biological differentiation. thus, for different reasons and in different ways, the plurality, dissenting, and concurring opinions all understood the question of whether the constitution permitted the use of state-sanctioned race-conscious criteria in a voluntary integration plan as existing against a naturalized background of legal assumptions about human ancestry. in the subsequent discussion, i seek to draw a distinction between the background rules of race that are shared in the classic, modern, and neoliberal conceptions. why is this distinction so important? the background rules of race as a legal concept, present in each of the liberal styles, provide an incredibly powerful obstacle in the way of serious efforts at social change. the reason, as has been !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 249 id. at 734. 250 id. at 797. 251 id. 2012 columbia journal of race and law 57 explained above, is that these background rules present race as a natural characteristic of human identity that exists independently of legal regulation—race precedes law. it is only with this assumption about the naturalness of race that we are able to understand roberts and kennedy as making any kind of sense, and once that assumption is removed, colorblindness becomes a completely incoherent concept. color—race—is legally constructed. pushing the argument further, once we establish that race is a legal concept, we can shift into the familiar territory of asking what social purpose that concept is expected to serve. historically, race had the purpose of justifying the domination of certain human populations as a natural inevitability. while that purpose is no longer as prevalent, there is no logical reason to forestall a recovery of that approach. rather, it can be joined with a more progressive interest in social change and racial justice. the discussion below provides two very different suggestions about how to go about doing so, both of which offer a re-thinking of parents involved in light of conflict of laws. in section a, race is maintained as an operative term where the hypothetical judge asks what function race is meant to serve in the context of the dispute, and consequently interprets relevant regulations in light of that function. that is, just as a term like “jurisdiction” was transformed in the encounter with early twentieth-century legal realism, this section contemplates a similar encounter in the context of “race” as a legal concept. in section b, the discussion looks at the facts of parents involved as literally a conflict of laws problem, and not analogously as it does in section a. while the result is largely indeterminate, it is simultaneously quite useful.252 a. a functionalist rendering of parents involved 1. the realist critique of formalism and the rise of functionalism one legal strategy for attacking a neoracist racial contract might be hiding in a place we’d be unlikely to look: the standard history of american legal thought itself. as is well known, american jurists went through a bit of an existential crisis in the early years of the twentieth century.253 in field after field, academics and judges united in critiques over the natural foundations of categories of private law.254 despite the breadth of the attack, a basic insight was consistently applied: it was no longer acceptable to believe in the veracity of so-called “natural” principles of law that might be discovered solely through the use of reason.255 there was no natural law of contract, property, tort, and so on. as it turned out, the manner in which a judge might decide a dispute with reference to a natural or objectively correct conception of law was soon believed to have just been a big mistake. there was no concept of property !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 252 i do not mean to suggest that i am in favor of one of these approaches over another. while there is something more politically satisfying about the former, at least in the way that i have portrayed a functional view of race in the present discussion, there can be no doubt about the overwhelming amount of valid critique that functionalist jurisprudence has suffered over the last third of the 20th century. for discussion, see, e.g., duncan kennedy, three globalizations in law and legal thought, in the new law and economic development 19 (alvaro santos ed., 2006). 253 see, e.g., morton horwitz, the transformation of american law, 1870–1960 (1992) (discussing a classic account of the existential crisis). cf. roberto m. unger, what should legal analysis become? (1996); see also brian z. tamanaha, beyond the formalist-realist divide: the role of politics in judging (2009). 254 see, e.g., horwitz, supra note 253 (critiquing the natural foundations of torts, contract, and property law); see also kennedy, supra note 252, at 44–45. 255 see, e.g., oliver holmes, the path of the law, 10 harv. l. rev. 457 (1897); wesley hohfeld, some fundamental legal conceptions as applied in judicial reasoning, 23 yale l.j. 16 (1913); robert hale, coercion and distribution in a supposedly non-coercive state, 38 pol. sci. q. 470 (1923). race as a legal concept vol. 2:1 58 or contract “out there” that “legal science”256 might rigorously apply to the world of human conflict. the objective conception of legal analysis was, and had always been, a mirage. a common example of this shift from a kind of formalism to functionalism is the field of conflict of laws.257 chief among the jurists who launched the critique of formalism in this area was walter wheeler cook, taking aim at statements like this one from a.c. dicey: “‘fundamental principles of private international law can be ascertained by study and reflection, and that the soundness of the rules maintained, say in england, as to the extraterritorial recognition of rights, can be tested by their conformity to, or deviation from, such general principles.’”258 cook elaborated, “it follows that ‘the object of a writer on the conflict of laws is to discover the principles’ of the subject, and ‘starting with some one principle . . . to show how in accordance with the fundamental principle assumed by the writer as the basis of his system, the specific rules for the decision of concrete cases are or should be reached by all countries.”259 more specifically, cook understood leaders in the field like joseph beale to have articulated a way of thinking about conflicts law that presupposed a series of beliefs in the nature of jurisdiction. at its base, the field of conflicts is hoped to provide answers to the question of what to do when a dispute has material connections to multiple sites of authority—which authority should hear the case (this is the “jurisdiction” question), and what law should govern the dispute (this is the “choice of law” question).260 for beale, the problem of conflicting sources of authority could always be solved with a single, correct answer. starting from a positivist position, beale believed that laws never preexisted the sovereign—that all law could only be law once it had been delivered by a properly constituted political authority.261 once a law had been articulated by the sovereign, however, something like a legal physics would begin. when a particular instance would take place, trigger the creation of a right under a sovereign’s law, that right became a fact for the entire world. the right was a fact like a chair is a fact; it demanded recognition as a natural thing in the world. consequently, because that right had “vested” there, there was no choice but for other jurisdiction to respect that right; a decision that failed to do so would be wrong.262 a famous example of this view is alabama great southern r.r. co. v. carroll,263 in which the employee of a railroad company, carroll, was injured in the course of his work. carroll was a resident of alabama, as was the employer. the negligence, which was on the part of carroll’s fellow laborers, who were responsible for carroll’s injury, took place while the train was in alabama, but the injury itself !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 256 1 joseph beale, selections from beale’s treatise on the conflict of laws 2–4 (1935) (providing a well-known example of “legal science”). the seminal account is found in friedrich savigny. 257 friedrich juenger, choice of law and multistate justice (2005) (describing the history of the shift from formalism to functionalism). 258 walter wheeler cook, the logical and legal bases of the conflict of laws, 33 yale l.j. 457, 458 (1923). 259 id. 260 see, e.g., symeon c. symeonides, et al., cases and materials on conflict of laws: american, comparative and international (2d ed. 2003). 261 beale, supra note 256, at 2–18. 262 id. at 18. 263 97 ala. 126 (ala. 1892). 2012 columbia journal of race and law 59 happened in mississippi. mississippi law exempted the railroad company from any liability when the harm was the result of a fellow worker and not management, but in alabama the company would have been liable for damages. following beale’s logic, the state high court had no problem finding that carroll’s right to compensation had vested in mississippi—the location where the injury had occurred— and as a consequence, the alabama supreme court was compelled to apply mississippi law. that was the end of the story; there was literally nothing the alabama supreme court could have done.264 for critics like cook, this whole scenario was plain crazy. if decisions like the one in carroll were intended to mean that the alabama court was obligated to apply mississippi law because it followed what it believed were the advantages of vested rights theory, cook had no quarrel.265 but, to the extent courts actually meant to say that choice of law or jurisdictional questions are a priori answered, and that the state of alabama could not principally apply its own law because the right vested in another jurisdiction, was simply ridiculous.266 the actual state of affairs, cook argued, was one in which courts applied their own laws to situations in which rights had supposedly vested elsewhere, all the time.267 if one looked at the reality of judicial decision making it would quickly become apparent that these sorts of “fundamental principles” were subject to all kinds of varying interpretations. in carroll, why was it that the injury itself had vested the right? what about the negligence? and was this even a tort case? perhaps it was actually a contract case, in which the law of the place where the employment contract had been made would have controlled, in that case, alabama. or instead, might this dispute not be better seen as a matter of procedural rules, given that the field of conflicts is usually understood as procedural law? in that case, alabama law would apply. but maybe the best answer would be to really apply the whole of mississippi law, including its own conflicts rules, since that decided whether the right apparently vested. what then if mississippi conflicts law punted back to alabama, only to get caught up in alabama’s conflicts law that would send it right back again?268 the courts that frequently used these “escape” devices were familiar with their application. however, cook raised the bar. even in the ordinary case of a court “following” vested rights theory— like the alabama supreme court in carroll—the fundamental principles were still not in play in the way that legal science would have instructed. when a court attempts to apply “foreign law,” like the alabama court tried to apply mississippi law, it never actually applies “foreign law” at all. in fact, applying foreign law is impossible.269 even if the foreign law really existed as a unitary and coherent thing in the foreign place, the local court can never do anything but recreate the “foreign” in the context of its own articulation. to be clear, cook was not exactly postmodern; his argument was simply that vested rights theory was impossible on its own terms. alabama applied what it understood to be the law of mississippi, in that a mississippi court would have applied it to a dispute between two mississippi residents. but in fact, the alabama supreme court was dealing with a dispute between two alabama residents, and this collision of jurisdictional competence is the whole point of conflicts jurisprudence— trying to figure out what to do when competing authorities are implicated in a legal dispute. by pretending that carroll and his employer were mississippi residents, the court at once missed the whole !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 264 see symeonides, supra note 260, at 19–26 (discussing the carroll case from several different angles). 265 cook, supra note 258, at 459–60. 266 id. at 462–63. 267 id. 268 see cook, supra note 258, at 468–69 (explaining this point as “renvoi”). 269 id. at 469. race as a legal concept vol. 2:1 60 point of conflicts law and ultimately rendered a decision on the basis of an imaginary dispute between mississippi residents who never existed. so what happened to conflict of laws after the decline of vested rights theory and the natural conception of jurisdictional relations? after some decades of turmoil, courts across the country encountered what came to be known as the “judicial revolution.”270 judges and academics agreed there were no natural rules that could guide us in the attempt to reconcile competing claims from equal sovereigns regarding which law should apply.271 the conventional move forward involved an “interest” analysis, in which a court would ask what purposes choosing the law of one jurisdiction over another would serve.272 adjudicating a conflicts question became much as it is today: an approach that expressly recognized the political and contestable aspects of its project, while simultaneously embracing highly technical legal strategies to generate an outcome to the dispute.273 2. what is the function of race as a legal concept? as we might think of what is happening to race as a legal concept today, a century ago, fields like conflict of laws transitioned from a moment in which foundational concepts were believed to be natural, objective, and the proper subjects of a “legal science,” to another moment in which they were instead understood to be best interpreted in light of the shifting grounds of contemporary social needs.274 that is, the “discovery” that property, contract, corporations, or jurisdiction lacked objective foundations in the natural world did not usher in a call for the abolition of property and contract. we might also say that the “discovery” that race lacks scientifically objective foundations need not usher in a call for the end of race. instead, conflict of laws jurists at the time asked: what purposes do these concepts serve? how should they be interpreted in light of those purposes? what is their function? is there any life to the possible analogy between the denaturalization of private law in the early twentieth century and the potential denaturalization of race law in the present?275 one obvious problem !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 270 the case most famously associated with the revolution is babcock v. johnson, 191 n.e.2d 279 (n.y. 1963). 271 the babcock court mentioned the widespread “dissatisfaction with the mechanical formulae of the conflicts of law,” and how “the vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations . . . . the vice of the vested rights theory . . . is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved.” id. at 281–82. 272 see generally brainerd currie, selected essays on the conflict of laws (1963). 273 knop, supra note 41. to be clear here, i do not mean to conflate the sort of generic “funcationalism” to which i am referring, with the more specific use of the term as a theory of conflicts. my use of functionalism incorporates most styles of conflicts jurisprudence that emerged after currie. for discussion of the different models, including a more specified form of functionalism, see ralf michaels & joost pauwelyn, conflict of norms or conflict of laws?: different techniques in the fragmentation of public international law, in multi-sourced equivalent norms in international law 19 (tomer broude & yuval shany eds., 2010). for treatments of this more specific kind, see arthur t. von mehren & donald trautman, the law of multistate problems (1965). 274 for a discussion of this approach, see duncan kennedy’s description of “the social.” kennedy, supra note 34, at 37. 275 the following discussion is in the spirit of terrance macmullen’s discussion of a deweyan reconstruction of race. terrance macmullen, habits of whiteness: a pragmatist reconstruction (2009). 2012 columbia journal of race and law 61 with the analogy is the legal system’s long-time friend, the public-private distinction.276 the enforcement of civil rights claims and the use of racial classifications are matters of public law, though since the establishment of the civil rights act and the allowance of claims against private parties, courts and congress expanded the scope beyond state action. but the judicial act of reconceiving concepts like jurisdiction seems quite different than the judicial reconception of race. whereas the former strikes us now as obviously artificial, the latter still feels organic, and as a consequence, less susceptible to this kind of reconception. but this is the whole point: there is nothing organic about race at all. interestingly, a kind of interest-oriented functionalism is already built into constitutional law.277 after all, the court’s standard approach is to evaluate the use of racial classifications in light of particular social interests, and in the present, those interests have been essentially limited to our desires for cultural diversity in higher education. while this functionalism is built-in, it is also different than the functionalism in private law that followed legal realism. private law functionalism formally did away with the notion of natural reason and rule, whereas our contemporary constitutionalism balances its commitment to a natural conception of race against its allowance of certain state acts that regulate that natural conception. (i) step one: choose an interpretive method the first step in the analysis would emphasize the wholesale absence of any formal or literal constitutional limitations on the school districts’ allotment plans. of course, one does not require a leap of faith to highlight this—as has already been pointed out, the court has never interpreted the fourteenth amendment as completely prohibiting racial classifications. it only prohibits such classifications that are without the appropriate sort of justification. whether the plans are valid will turn entirely on the court’s interpretive methods. in this case, the court will choose what could be called a 1930’s style functionalism.278 (ii) step two: foreground neoracism and the racial contract the second step would involve a historical examination of the global process of racial oppression. the opinion would highlight how, over the course of several centuries, experts from various disciplines had helped elaborate a racial ideology that rationalized the racial contract. the court would explain that, while racial oppression had suffered a major blow in the middle of the twentieth century, racism continued to flourish in other subtle ways. the need for a comprehensive assault on racism is no less necessary today than it was a hundred years ago. the effects of racial discrimination are rampant and systemic, and every bit of the legal system’s power must be leveraged in service of dismantling that system. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 276 for discussions of the public-private distinction, see paul brest, state action and liberal theory: a casenote on flagg brothers v. brooks, 130 u. pa. l. rev. 1296 (1982); frances olsen, the family and the market: a study of ideology and legal reform, 96 harv. l. rev. 1497 (1983). 277 at least, to the extent that one adopts a view of the constitution that it should be interpreted in light of shifting social conditions, this involves a kind of functionalism. 278 for representative examples of 1930’s functionalism, see roscoe pound, the scope and purpose of sociological jurisprudence, 25 harv. l. rev. 591 (1911); cohen, supra note 38; hans morgenthau, positivism, functionalism, and international law, 34 am. j. int’l l. 260 (1940). race as a legal concept vol. 2:1 62 (iii) step three: identify the function of race the third step would handle the term “race” in the following way. it is time to eliminate the oldfashioned and archaic idea that there are human races born into the world, and to embrace the view that races are nevertheless real as a matter of our social reality. consequently, the thrust must involve a functionalist interpretation of race that asks not what race is, but rather, what purpose does the articulation of race serve? what is the interest in using the idea of race as legal category? what is its function? the court would then clearly reiterate what its purpose has been in the past: the purpose of race had been to justify a state of oppression. following this, the court would announce a reversal: the function of race today should be to do exactly the opposite, undermining that state of oppression. whether we are in the context of constitutional law, the civil rights act, or any other legal regime, any relevant texts will be interpreted in light of this function. (iv) step four: decide the fourth and final step would ask whether the school allotment plans are using the social concept of race as a tool for undermining the racial contract, instead of supporting it. keep in mind here, this question would focus on whether the schools’ use of race was in tension with the racial contract, and not the egalitarianism of the classic liberal social contract that the current supreme court believes to be endangered by the schools’ plans. also keep in mind that this step may hardly feel “legal” in the sense that a particular rule is applied to a set of facts in a consistent, uniform, and general fashion. but functionalist conceptions of law are never any of these things anyway, and if one buys into the realist critiques that paved the way for functionalism in the first place, then one also knows that rules are rarely applied consistently or uniformly, regardless of our selected interpretive method. b. conflict of laws as “cultural conflict” despite the fact that the supreme court’s jurisprudence here actually does employ a kind of functionalism, though admittedly not of the private law variety that this article has described, this rendering of a functionalist interpretation of race might feel like it is just too much. if we have done away with biology, then who has standing to bring these claims? how will arguments over standing be resolved? what is the legal definition of “racial oppression”? what counts as “properly” redressing that kind of oppression? is it legitimate for michigan law school to decide in a given year that no “white” people will be admitted? these are obviously hard questions, and many more would be asked. of course, our contemporary situation is also subject to a host of really hard questions. it is far from clear why the one set is accepted as just part of how the world works, and the other set of questions is taken as damning evidence. in any case, the aim of the article is not to argue for what i have brazenly termed a functionalist perspective on race law. instead, it is to highlight the connection between the invention of a natural idea about humanity called “race” and the use of that idea as a justification for oppression, and in tandem, the manner in which the american legal system has relied on that same idea, even at its most progressive moments. in the previous section, the discussion suggested one possibility of how an affirmative action case might have been decided if it was made in light of the racial contract and the progressivism of early twentieth-century american legal thought. despite the radical feel of that hypothetical rendering, there is nothing in it that does violence to the court’s own canonical tools. in these final sections, the discussion will set up a second way of rethinking parents involved, but from a quite different angle, or to borrow language from professors karen knop, ralf michaels, and annelise riles, it will be imagined “sideways.” instead of making an analogy between conflict of laws and race law, here race is imagined as a problem of conflict of laws. 2012 columbia journal of race and law 63 1. why conflict of laws? in their recent article, after multiculturalism: feminism, culture, and the surprising attraction of a conflict of laws approach,279 knop, michaels, and riles pose a novel approach to the “bogged-down” relation between feminism and culture. they ask: how do we resolve questions about veiling, polygamy, and clitoridectomy—practices understood to be oppressive to women in some cultures but liberating in others—without getting stuck in interminable debates about universalism, relativism, and cultural essentialism?280 must a commitment to gender equality always be posed in contrast to commitments to cultural diversity? and what do we do about disagreements over what is actually fundamental to a culture in the first place? can we be sure that polygamy is ever essential in a particular community? is there anything essential for sure? these are thorny questions, highlighting how in some ways feminist thinking about law has gotten stuck in the essentialist debates about cultural content. so how could a field like conflicts possibly be of any assistance? “the path we propose draws on what, at first glance, would seem an unpromising legal paradigm—conflict of laws, the highly technical field famously described as a ‘dismal swamp’ . . . more often associated with out-of-state car accidents . . . the field that time forgot.”281 at first blush, using conflict of laws to analyze the feminism-culture problem (or race, for that matter) might strike some as a kind of parlor trick. despite appearances, however, knop, michaels, and riles seem to be on to something. conflicts jurisprudence has a style quite different than what we are used to in the typical domain of civil rights law.282 traditional public law litigation, especially in the enforcement of constitutional rights, begins with an encounter with a huge moral question about personal freedom and a theory of justice.283 the constitutional tactic is to deal with this moral problem by stripping it of its political dimensions—the question is weighed and balanced and answered in what is pronounced as a decision that is somehow “correct.”284 but conflicts jurisprudence works in something like the reverse. the initial question is usually posed in technical, apolitical terms. this question is then pushed through a series of maneuvers that every judge already knows to be highly indeterminate.285 perhaps unlike some other fields, jurists !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 279 knop, michaels, & riles, supra note 41. the step-by-step approach articulated in the following sections might be seen as doing violence to the actual approach described by knop, michaels, and riles. in their piece, they don’t set anything out like the kind of mechanical operation i am suggesting in the context of parents involved, and this appears intentional on their part. nevertheless, my hope in harnessing their approach and pressing it into the service of race law is to only provide one sort of concrete illustration of how their approach might be applied. it certainly shouldn’t be understood as only being available in the way that i describe it here. thanks to ralf michaels for this helpful clarification. 280 id. knop, michaels, and riles don’t suggest that these are the only or the seminal issues involved in the gridlock between feminists and multiculturalists. 281 id. 282 id. 283 id. 284 id. 285 [w]hereas the debate in constitutional law or international human rights law, that is, public law, starts with liberal values, conflict of laws begins with the acceptance of the other jurisdiction’s potentially illiberal laws. both processes of analysis get to [a point of ethical decision] . . . [b]ut conflicts gets there through a series of technicalities, and these technicalities bring an immediate race as a legal concept vol. 2:1 64 working in conflict of laws typically know their history pretty well (described above), and reconciled themselves to the impossibility of “right” answers some time ago.286 to be sure, conflicts experts often seem rather frustrated that we still haven’t figured out how to make this thing work,287 but one of the key insights in the work of knop, michaels, and riles is that the awareness of this deep-seated indeterminacy is actually what makes conflict of laws such an unusually capable field. unlike the public law style that faces off with a major question about human rights, and then pretends to channel that question through a balancing mechanism that produces a correct result, the style of conflict of laws understands the mechanism itself—the techniques of reasoning—to be an ethical framework of decision making. it does not separate out the ethical question from a depoliticized judicial test. it does not seek “the perfectly calibrated balance between opposing interests; to split the baby precisely in two; to find the sweet spot at which all sides give up precisely the appropriate amounts in favor of the common good.”288 conflicts jurisprudence treats the entire process as politically contestable, while at the very same time negotiating that process in highly technical terms. the intellectual style of conflict of laws is therefore at once far more humble and more realistic than the bombastic and “black-letter” feel of decisions like parents involved. this idea that the conflicts style is able to take highly political questions and funnel them into apparently apolitical techniques without actually depoliticizing them is illustrated in the manner in which courts gather information on the laws of foreign jurisdictions. in the garden-variety conflicts case, the parties must prove the relevant foreign law, whether that be the law of alabama or afghanistan. the judge knows that the “proof” of that law will be highly contingent on the interests of those parties making out their claims about what alabama or afghanistan’s laws require in the given context. that is, just as proof of other domestic law doctrines is dependent—whether there actually was an offer or consideration or negligence or whatever will turn on the talents of those making the arguments—actual proof of foreign law is just as impossible. thus, conflicts judges engage in a tried and true judicial move: while it may be obvious that they are not dealing with an objective assessment of foreign law, if such a thing were even available, they act as if it was an objective assessment. the proof of foreign law is constructive.289 2. thinking sideways about race and culture this takes us to the question of how parents involved might be re-situated in the style of conflict of laws. admittedly, the example worked out by knop, michaels, and riles appears to be an easier fit !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! complexity and detail that constitutional theory or human rights theory must generate from first principles—and seldom arrives at. knop, michaels, & riles, supra note 41. 286 see, e.g., walter wheeler cook, the logical and legal bases of the conflict of laws, 33 yale l.j. 457 (1924); hessel yntema, the historic bases of private international law, 2 am. j. comp. l. 297 (1953); david f. cavers, a critique of the choice of law problem, 47 harv. l. rev. 173 (1933). 287 for one exemplary critique of the “forest of metaphors” and “fantasyland” that is conflict of laws, see harold g. maier, finding the trees in spite of the metaphorist: the problem of state interests in choice of law, 56 alb. l. rev. 753 (1993). 288 knop, michaels, & riles, supra note 41. 289 the notion of constructive law, or legal fiction, has a long pedigree. for a recent discussion, see nancy j. knauer, legal fictions and juristic truth, 23 st. thomas l. rev. 1 (2010). 2012 columbia journal of race and law 65 than the affirmative action problem here. in their analysis, knop, michaels, and riles looked at a hypothetical corporate law dispute between a father and daughter, where the former was a citizen and resident of japan, and the daughter was a resident of california. though the dispute upon which the hypo was based was not a conflicts case, it was easy enough to see how a conflicts analysis could initially develop: there were two cultures in play, with apparently conflicting conceptions about the relevant laws regulating the dispute.290 nevertheless, there appears to be room to think about racial identity in the conflicts style, as knop, michaels, and riles have imagined it. though this article does not attempt the level of detail they produce in their analysis of gender and culture, the discussion should be plentiful enough to suggest clear points of departure for further elaborations of a conflicts style of race law. (i) step one: identify the jurisdictional (cultural) conflict the first step in reorienting parents involved in the conflicts style requires the judge to identify the cultural conflict in play. in an earlier piece, riles argued that a more realistic understanding of jurisdictional conflict suggests that what is really in conflict—in even the most pedestrian of cases, like the carroll case discussed above—are cultural norms.291 after all, the whole notion of a conflict of competing jurisdictions is a metaphor—a jurisdiction is not literally in conflict with anything. what is at stake, riles suggested, is a choice between values. the idea here is that, even though cultures are incredibly complex, the fact is that conflicts cases are at bottom about conflicts of values, “that is, a problem of how to make sense of something foreign to one’s own world, to understand, to accommodate, to empathize with, or to choose to refuse to do so.”292 “the problem at the heart of conflicts, then, is not just what is the source of the authority for our laws and our judicial decisions, but whose rules or values should prevail, and what are those rules and values anyway?”293 though it may be nearly impossible to truly know what those rules and values might be, this does not preclude the necessity of trying to figure out what they are, and ultimately producing “constructive cultures.” therefore, just as judges are accustomed to using the constructive law of a foreign jurisdiction, so too can judges think constructively about cultural norms. consequently, just as there would be an initial mapping of the two competing jurisdictions in carroll—mississippi and alabama—here the judge would look for the competing cultures or “normative communities.”294 if we arbitrarily choose to focus on seattle rather than louisville, the dispute was over the seattle school board’s attempt to redress the effects of racially concentrated housing patterns in the seattle metropolitan area. the board’s plan allowed any student to select from any of the ten comprehensive high schools in seattle, regardless of whether the student was applying to a neighborhood school. in the event that particular schools were oversubscribed, the board used a “racial tiebreaker” in order to undermine the city’s racial disparities.295 seattle itself is historically segregated. as of a few years ago, sixty-six percent of all white students lived north of downtown seattle while eighty!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 290 knop, michaels, & riles, supra note 41. 291 riles, supra note 243, at 275. 292 id. 293 id. 294 id. 295 parents involved, 551 u.s. 701, 702 (2007). race as a legal concept vol. 2:1 66 four percent of african-american students, seventy-four percent of asian students, and sixty-five percent of hispanic students lived south of downtown. as one school board member testified, “[t]here currently are and have always been invisible lines in seattle’s residential areas, defining where people of color are welcome.”296 with respect to the high schools themselves, the most prestigious schools were unavailable to students living in southern seattle, and because of the city’s segregated housing patterns, this meant the prestigious schools were dominated by whites, while the less advanced schools were dominated by “non-whites.” with respect to the particular claim in parents involved, the plaintiff was a nonprofit corporation comprised of parents of students whose children were or were potentially denied placement in the high school of their choice. these claimants were recognized as “white” in the dispute, and individual members of the defendant school board were comprised of different racial categories. insofar as our hypothetical judge needs to determine the “normative communities” with material connections to the dispute, seattle has several: “white,” “african american,” “asian american,” and “hispanic.” of course, this has a very different feel than having identified alabama and mississippi, or california and japan, as the competing cultural entities. in a judicial context, alabama, mississippi, california, and japan are all “jurisdictions,” and conflicts jurisprudence is a field concerned with jurisdictional questions. “white” is not a jurisdiction, right? but if these are our thoughts, we have already gone off the rails. the very point of this exercise is precisely to think of alabama, mississippi, california, and japan as cultures and not as abstract “jurisdictions.” and if the judicial task is to use a legal technique which searches out culture, african american or hispanic or asian are as good as any other.297 but, what about white culture? what does that involve? without entering the large literature on whiteness,298 suffice it to say that whiteness does not function on the same analytical plane as something like “hispanic.” by way of example, consider e. christi cunningham’s articulation of “the race paradigm” in american law and its five basic premises.299 these are: (1) all humans are assigned a racial identity, (2) race is the preeminent aspect of an individual’s total identity, (3) races are property interests, where whiteness in particular is a legally cognizable property interest, (4) racial categories are defined in contrast to whiteness, and (5) whiteness is the “supreme” racial identity.300 these emphases on whiteness in the critical race theory literature are meant to foreground the lopsided quality of “race relations;” to be sure, all races are socially and legally constructed, but the manner in which “non-white” racial categories are understood is always as a matter of juxtaposition against whiteness. courts define whiteness as a set of powers, privileges, and dominance.301 consequently, those people that are born !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 296 brief of appellees at 6, parents involved in cmty. schs. v. seattle sch. dist. no. 1, 285 f.3d 1236 (9th cir. 2002) (no. 01-35450), 2001 wl 34090888, at *5. 297 but, maybe not: as stephen steinberg has pointed out, some research has suggested that few latinos actually identify with these designations as accurate descriptors of their own cultural identities, preferring instead to associate with particular countries of origin. stephen steinberg, race relations: a critique 126 (2007). 298 for an interesting mapping of various theories of whiteness, see vron ware, the parameters of white critique, in a companion to racial and ethnic studies 105 (david theo goldberg & john solomos eds., 2002). 299 cunningham, supra note 72, at 762–63. 300 id. 301 gallagher, supra note 49, at 9. 2012 columbia journal of race and law 67 with the “right” physical attributes that have been socialized as “racial,” such as skin color, hair, and other facial features, automatically partake of those legally bestowed powers, privileges, and interests.302 whiteness is a kind of power structure or ideology of domination. blackness, or hispanic, or asian, is not, and hence the categorical mismatch in thinking about “cultural conflicts.” there are black, hispanic, and asian cultures, however disaggregated they might be, in ways that there is not a white culture.303 though all races are socio-legal constructions, whiteness is the controlling, animating structure. in cultural terms, whiteness is the nadir, if not a negation. given our conflict of laws framework, and the judicial task of identifying the relevant cultures to the dispute, whiteness should be regarded as both a culture and an ideology of racial oppression. yes, the discussion has now taken us from (1) jurisdiction, down to (2) culture, and now down to (3) ideology, but this string of moves is both justifiable and desirable. it is justifiable because for whatever we know whiteness to really be, it is still true that whiteness performs as a socially constructed racial and cultural identity. if we are looking for the cultures in play here, whiteness has to be counted among them, since people generally speak and act as if there was a white culture.304 further, it is desirable to understand whiteness in this way because it serves as an antidote to our worries that the move from race to culture brings with it a lack of focus on the real problem of racism. as long as whiteness is in the mix, and whiteness is understood both as a culture and an ideology of racial subordination, the conflicts style of cultural analysis is prevented from descending into the post-racial diversity project of the supreme court. by definition, a cultural conflict in which whiteness is a part will force the conflicts judge to squarely face racism. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 302 as david roediger has written, “it is not merely . . . that whiteness is nothing but oppressive and false. . . . it is the empty and therefore terrifying attempt to build an identity based on what one isn’t and on whom one can hold back.” white without end?, in race struggles 98, 103 (theodore koditschek, sundiata keita cha-jua & helen neville eds., 2009). see generally, white logic, white methods (tukufu zuberi & eduardo bonilla-silva eds., 2008); gallagher, supra note 49; ian haney lopez, white by law: the legal construction of race (2006); critical white studies: looking behind the mirror (richard delgado & jean stefancic eds., 1997); camille gear rich, marginal whiteness, 98 cal. l. rev. 1497, 1593 (2010); harris, supra note 157; barbara flagg & david roediger, wages of whiteness (1991); audrey g. mcfarlane, operatively white?: exploring the significance of race and class through the paradox of black middle-classness, 72 law & contemp. probs. 163, 163 (2009). 303 in this context, the website devoted to the “stuff white people like” is interesting. stuff white people like, http://stuffwhitepeoplelike.com/ (last visited feb. 6, 2012). in contrast to the idea that whiteness has positive content, see ian haney lopez: in a setting in which white identity exists as the superior opposite to the identity of non-whites, elaborating a positive white racial identity seems at best redundant, and at worst dangerous. whiteness is already defined almost exclusively in terms of positive attributes. whites already exist as innocent, industrious, temperate, judicious, and so on . . . . further, advocating the development of a positive white racial identity disregards the extent to which white attributes rest on the negative traits that supposedly define minorities. . . . because white identity is a hierarchical fantasy that requires inferior minority identities, whiteness as it currently exists should be dismantled. the systems of meaning that define races revolve primarily around whites, not non-whites. lopez, supra note 302, at 22. 304 id. see also danielle dirks & jennifer mueller, racism and popular culture, in handbook on the sociology of racial and ethnic relations, supra note 49, at 115, 116 (“in the united states popular culture has assisted in the maintenance of a white supremacist racial hierarchy since its american inception.”). race as a legal concept vol. 2:1 68 (ii) step two: characterization of the claim once the judge has established the identity of the competing (known but undefined) cultures, the next step will be to characterize the dispute. though the parties typically have the burden of arguing a theory of the case, judges in conflicts cases have long re-characterized a dispute when it seemed worth doing in the judge’s view.305 in this respect, one of the oldest critiques of carroll was how the judge might have just as easily regarded carroll’s employment contract as at least as relevant to his claim against the railroad as the tort theory that ultimately persuaded the alabama supreme court.306 thus, looking at the terrain our hypothetical judge will ask, what is going on here in seattle? what are the alternative theories of the case? even with the very few facts already canvassed, several kinds of claims quickly emerge to the surface. first, this looks like a question of local government law.307 second, while it has the appearance of a dispute about school assignments, perhaps it is more effectively analyzed as a problem in housing law.308 third, the suggestion that the school board owed an affirmative duty to people like jill kurfirst of parents involved in community schools, and that this duty was breached resulting in an injury, positions this is a tort claim.309 fourth, and following a substantial strain of thinking in critical race theory, claimants like kurfirst could argue that the board’s decision robbed her of a property right without due compensation.310 fifth, of course, the claim could be situated in the way it was in the actual case. surely, other claims could be developed as well. the point here, however, is not that our hypothetical judge might conclude that one of these avenues is “correct” or that the supreme court really got it wrong in thinking in constitutional rather than property terms. the point is that in the conflicts style the judge is forced to operate with an awareness about the contingency and elasticity of the whole process of characterization. “the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 305 among the most famous examples of this tactic are found in w. union tel. co. v. chilton, 140 s.w. 26 (ark. 1911) and w. union tel. co. v. flannagan, 167 s.w. 701 (ark. 1914). 306 see symeonides, supra note 260, at 42–43. 307 see, e.g., holt civic club v. city of tuscaloosa, 439 u.s. 60 (1978) (court dismissed suit by an unincorporated town challenging the applicability of local city ordinances despite their lack of participation in the political process); milliken v. bradley, 418 u.s. 717 (1974) (court found that a multiple district school desegregation plan was inappropriate where only one district participated in de jure discrimination unless there is a finding that the other districts participated in the discrimination or that the districts were created to create discrimination); san antonio indep. sch. dist. v. rodriguez, 411 u.s. 1 (1973) (court held no due process violation in a state school financing scheme that based school funding on local property taxes); sheff v. o’neill, 678 a.2d 1267 (conn. 1996) (state supreme court held that a state constitutional right to substantially equal educational opportunities obliged the state to address de facto and de jure discrimination). 308 see, e.g., village of arlington heights v. metro. hous. dev. corp., 429 u.s. 252 (1977) (court found plaintiffs did not satisfy their burden to prove that there was racial motivation in zoning); s. burlington cnty. naacp v. twp. of mount laurel, 336 a.2d 718 (n.j. 1975) (holding that zoning laws that rendered it impossible to create low to moderate income housing in a municipality were invalid). 309 see, e.g., wassell v. adams, 865 f.2d 849 (7th cir. 1989) (jury’s apportionment of negligence upheld). 310 wilk v. wilk, 795 a.2d 1191 (vt. 2002) (allowing due compensation for a portion of a parcel of land); ragland v. walter, 411 so. 106 (ala. 1982) (allowing public sale of contested property instead of equitable distribution); black v. stimpson, 602 so.2d 368 (ala. 1992) (upholding a public sale and proportional distribution of profits to owners). professor craig-taylor also cites fike v. shearer, 571 p.2d 1252 (or. 1977) (ordering public sale of contested land instead of private sale). 2012 columbia journal of race and law 69 sedimenting of critiques in the conflicts tradition has meant that when we characterize, we do so knowing in some sense that there is not one single ‘right answer’ to the characterization question.”311 or, from another viewpoint, “[c]haracterization is not a truth claim; it is a provisional technique for resolving a very real clash of values.”312 consequently, the cash value of foregrounding the process of claim characterization lies in the judge’s ability to avoid legal conceptions that may have greater tendencies to bog the claim down in questions about the “actual” politics of the judge that are “really” driving the decision. if we are in the process of characterizing in the conflicts style, we already know this is simply the judge’s choice, and nothing more, since there is no a priori reason to characterize the claim in one way or another. (iii) step three: identify the rules just as the alabama supreme court asked in carroll how tort rules differed in the jurisdictions of alabama and mississippi, so here the third step in the analysis is to ask how the rules differ in the white and non-white cultural communities. this step proceeds in light of a double recognition produced through encounters with legal realism and cultural anthropology: objective assessments of both (1) rules, and (2) culture are always unavailable. thus, both the cultures themselves and the rules we associate with those cultures will be constructive—they will be constructed as if they were objectively attainable. as knop, michaels, and riles explain, “we suggest that the adversarial process can be understood as encoding the post-essentialist idea that the truth of foreign law is contestable and what is established is a product of competing testimony by foreign law experts and the judge’s perspective on the testimony.”313 playing the law game tells us that there really is a foreign law “out there,” but the techniques themselves demonstrate “recognition that this is not possible and ultimately it will be a best approximation.”314 consequently, conclusions about the rules derived from the white and non-white communities are simultaneously formalistic and realistic. with regard to each of the alternative characterizations mentioned above, each of these fields has been subjected over time to racial critique and attendant descriptions of relevant “communities of interest.”315 the basic critique in each case is the same: there is a view that a field of law can be divided !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 311 knop, michaels, & riles, supra note 41, at 46. 312 id. 313 id. at 43. 314 id. 315 for scholarship on raced local government law, see, e.g., michelle wilde anderson, cities inside out: race, poverty, and exclusion at the urban fringe, 55 ucla l. rev. 1095 (2008); david j. barron, reclaiming home rule, 116 harv. l. rev. 2255, 2352 (2003); elise c. boddie, racial territoriality, 58 ucla l. rev. 401, 402 (2010); richard briffault, the local government boundary problem in metropolitan areas, 48 stan. l. rev. 1115, 1151 (1996); sheryll d. cashin, localism, self-interest, and the tyranny of the favored quarter: addressing the barriers to new regionalism, 88 geo. l.j. 1985, 1994 (2000); richard thompson ford, geography and sovereignty: jurisdictional formation and racial segregation, 49 stan. l. rev. 1365 (1997); richard thompson ford, beyond borders: a partial response to richard briffault, 48 stan. l. rev. 1173, 1181 (1996); richard thompson ford, the boundaries of race: political geography in legal analysis, 107 harv. l. rev. 1841, 1843 (1994); gerald e. frug, beyond regional government, 115 harv. l. rev. 1763 (2002); reginald oh, re-mapping equal protection jurisprudence: a legal geography of race and affirmative action, 53 am. u. l. rev. 1305, 1307 (2004); aaron j. saiger, the school district boundary problem, 42 urb. law. 495 (2010). for scholarship on raced housing law, see, e.g., marisa bono, don’t you be my neighbor: restrictive housing ordinances as the new jim crow, 3 the modern am. 29 (2007); paul boudreaux, an individual preference approach to suburban racial desegregation, 27 fordham urb. l.j. 533, 535 (1999); j. peter byrne, are suburbs unconstitutional?, 85 geo. race as a legal concept vol. 2:1 70 in terms of several competing points of view. one view, which is generally espoused by the court and is the subject of criticism, is accused of reinforcing racial subordination in one way or another. such a view may therefore be termed a “white” view, precisely because of the manner in which whiteness is an ideology316 of domination, as described above. in terms of generating the rules associated with non-white normative communities, the conflicts judge would survey those sets of rules suggestive of black or hispanic or asian interests, defined in logical opposition to the white interests. this part of the analysis need not be as treacherous as it might sound: once a particular rule has been determined as rooted in a white cultural norm, such as “cultural diversity” for example, the judge could seek out counter-rules that appeared to have black, hispanic, or asian content. the determination of such content would turn on the peculiar manner in which the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! l.j. 2265 (1997); daniel r. mandelker, racial discrimination and exclusionary zoning: a perspective on arlington heights, 55 tex. l. rev. 1217, 1218 (1977); john a. powell & marguerite l. spencer, giving them the old “one-two”: gentrification and the k.o. of impoverished urban dwellers of color, 46 how. l.j. 433 (2003); henry a. span, how the courts should fight exclusionary zoning, 32 seton hall l. rev. 1, 3 (2001); lisa young, breaking the color line: zoning and opportunity in america’s metropolitan areas, 8 j. gender race & just. 667 (2005). for scholarship on raced tort law, see, e.g., jody armour, negrophobia and reasonable racism: the hidden costs of being black in america 84–89 (1997); fault lines: tort law as cultural practice (david engel & michael mccann eds., 2009); taunya lovell banks, teaching law with flaws: adopting a pluralistic approach to torts, 57 mo. l. rev. 443 (1992); martha chamallas, civil rights in ordinary tort cases: race, gender, and the calculation of economic loss, 38 loy. l.a. l. rev. 1435, 1437 (2005); rachel d. godsil, race nuisance: the politics of law in the jim crow era, 105 mich. l. rev. 505 (2006); amy kastely, out of the whiteness: on raced codes and white race consciousness in some tort, criminal, and contract law, 63 u. cin. l. rev. 269 (1994); frank m. mcclellan, the dark side of tort reform: searching for racial justice, 48 rutgers l. rev. 761 (1996); jennifer b. wriggins, constitution day lecture: constitutional law and tort law: injury, race, gender, and equal protection, 63 me. l. rev. 263, 264 (2010); jennifer wriggins, torts, race, and the value of injury, 1900–1949, 49 how. l.j. 99 (2005). for scholarship on raced property law, see, e.g., sally ackerman, the white supremacist status quo: how the american legal system perpetuates racism as seen through the lens of property law, 21 hamline j. pub. l. & pol’y 137 (1999); alfred brophy, integrating spaces: new perspectives on race in the property curriculum, 55 j. legal educ. 319 (2005); adrienne davis, the private law of race and sex: an antebellum perspective, 51 stan. l. rev. 221 (1999); cheryl harris, whiteness as property, 106 harv. l. rev. 1707 (1993); joseph william singer, no right to exclude: public accommodations and private property, 90 nw. u. l. rev. 1283, 1289 (1996); joseph william singer, legal theory: sovereignty and property, 86 nw. u. l. rev. 1 (1991); for scholarship on white constitutional law, see, e.g., derrick bell, brown v. board of education and the interest convergence dilemma, 93 harv. l. rev. 518 (1980); neil gotanda, a critique of ‘our constitution is color-blind’, 44 stan. l. rev. 1 (1991). 316 barbara fields highlighted the ideological nature of race. the underpinning here was ideological. “when virtually the whole of society . . . commits itself to belief in propositions that collapse into absurdity upon the slightest examination, the reason is not hallucination or delusion or even simple hypocrisy; rather it is ideology.” fields, supra note 47, at 100. and what is “ideology”? fields defined it as the working vernacular oppressors used in their day-to-day lives as a way of making sense of experience. the use of an ideology therefore smoothes over the rough spots, the moments of the day that might seem insane if it weren’t for a background sense of how the world works. ideology is the “interpretation in thought of the social relations through which they constantly create and re-create their collective being, . . . [such as] family, clan, tribe, nation, class, party, business, enterprise, church . . . .” id. at 110. more recently, miles and brown have emphasized the ideological aspect of race: “we therefore retain tenaciously the conception of racism as an ideology because it represents human beings, and social relations, in a distorted manner while never denying that, qua ideology, racism can be simultaneously deeply embedded in the contemporary weltanschauung and the focus of struggle on the part of those who challenge its hegemony.” miles & brown, supra note 20, at 9. 2012 columbia journal of race and law 71 counter-rule disposed of the white rule. once again, the purpose here is not to choose between the various sets of rules that the exercise would uncover, but only to uncover them. (iv) step four: identify the interests the fourth step is what is commonly known as interest analysis, though of a quite different sort than what was on display in parents involved. in the actual opinion, justice roberts followed the conventional line of balancing the school board’s allotment plan against the weight of the board’s interest in its implementation. roberts explained that only if the board had very particular interests in mind, and only if those interests were articulated in a very particular way, could the plan survive.317 interest analysis in the conflicts style works differently. here, our judge would attempt to trace the social interests underlying the conflicting rules in question, and at least at this stage, make no attempt to favor or impugn any them. the purpose instead is to just get the interests out there, and then determine how precisely these interests actually conflict. in many cases, judges will find “false conflicts” in conflict of laws disputes, where it is determined that what had at first appeared to be a conflict turned out to be a misnomer. for example, one could imagine the carroll case as representing a false conflict. on the one side was the decision of alabama’s legislature to put employers on the hook for tort damages through the adoption of an employer liability statute. this statute could therefore be imagined as representing alabama’s interest in giving carroll a remedy, since both he and the railroad company were alabama residents. on the other hand, mississippi had no statute of this kind, and relied instead on an old common law rule. for some, this might be understood as mississippi simply not having an interest in regulating a conflict between two alabamans, where the negligence happened in alabama, and the alabama legislature has explicitly regulated the issue where mississippi had not. thus, this was not really a “conflict” at all, and alabama’s law should have prevailed. thus, instead of framing one or two interests as “compelling” in light of the judge’s own moral compass, the conflicts judge makes no assumptions about the moral value of the interests and first looks to relate them before evaluating them. there is not adequate space here to outline the sorts of varying interests we might impute to particular cultures in the contexts of local government, housing, tort, property, and constitutional law disputes. what is clear enough, however, is that in certain cases cultural interests would likely align in surprising ways, while in others the interests would clash. this differentiation would serve as one gauge for the judge’s orientation towards the case: the choice to characterize a dispute in a given way, and the attendant likelihood of attaching particular conflicts or confluences of interests to those characterizations, would provide a powerful signal with regard to how the judge might be prepared to decide. (v) step five: decide the fifth step involves the judge’s decision. this could be framed as a conclusion that logically follows from the preceding arguments, but the better decision will refrain from doing so, instead highlighting the various avenues that the question may have taken. at the moment of decision, the conflicts style offers a final escape hatch known as the public policy exception.318 here, the judge may find it necessary to make a claim about the cultural norms of a particular party as somehow beyond the pale. the judge’s own morality enters the decision, but it enters in a brutally explicit way. thus, even if !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 317 parents involved, 551 u.s. 701, 702 (2007). 318 loucks v. standard oil, 224 n.y. 99 (n.y. 1918). race as a legal concept vol. 2:1 72 the prior arguments had been constructed to lead to one solution, the conflicts style might reverse at the very end in the name of an overriding morality. bearing witness to this degree of flexibility, some might doubt whether this is really a better way of dealing with such dramatic problems with race and culture. consider how knop, michaels, and riles ultimately defend their position. in their view, the conflicts style of decision has several advantages over conventional public law litigation, chief among them that a concrete dispute can be resolved without getting blocked by meta-ethical questions at the outset.319 beyond this is another set of strengths largely understood as advances beyond the multiculturalism framework. that is, where the supreme court’s racial project of cultural diversity is loosely predicated on cross-cultural dialogue, tolerance of others, and compromises between competing norms, a racial project articulated in the conflicts style is predicated on none of these.320 another way to see this difference lies in a comparison between the manner in which “interest analysis” is conducted in parents involved, and the way in which it would have been done in the conflicts style. following bakke and grutter, justice roberts pulled a white interest out of the sky—cultural diversity—and held that particular norms could only be applied if they were in the service of that one, single, paramount interest. in other words, the dispute was decided solely in terms of that single interest in the desirability of achieving tolerance and compromise in a world of intractable difference. in the conflicts situation, the court doesn’t apply a pre-existing interest in tolerance or diversity to a cultural dispute. as knop, michaels, and riles put it, the conflicts style does not see itself as being authorized to define a middle ground.321 instead, the court seeks out the interests immanent in the cultures themselves, and then decides in favor of one set of norms over another without compromising anything. perhaps we will see the judge as having decided in favor of the wrong norms, but at the least the conflicts judge cannot be accused of hiding the ball. in this case, it is hard to imagine how the decision might go given the many alternate routes the judge may have taken along the way. after having identified the cultural conflict at the root of the dispute between the parents of a white high school student and the seattle school board, the judge would have chosen one of many different characterizations of the claim. characterization is a huge multi-pronged fork in the road in which the claim might look quite differently depending on whether it is analyzed as a housing, education, or tort law dispute. then, upon each of these five or more splits in the road we could see the judge taking each of those routes and splitting them again into two or more paths. thus, there could be fifteen or twenty different ways of reaching the next step of the analysis: identifying the actual interests of the relevant cultures in having their “own” rules applied to the particular dispute between the parents and the board. after asking whether these interests line up or collide, the judge might finally insert herself into the foreground of the analysis, and suggest that something about the public policy of the state of washington, or the nation, dismisses one group of norms from consideration. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 319 knop, michaels, & riles, supra note 41. 320 id. 321 id. at 76. 2012 columbia journal of race and law 73 vi. conclusion thinking about race in the style of conflict of laws is a helpful way of reiterating the dualpurpose of this article, which is to (1) emphasize the legal character of racial identity, and (2) launch an emancipatory manipulation of civil rights law that only becomes available after we have confronted the full meaning of race as a legal concept. to sum up, i will restate both the nature of this sort of emancipation, as well as its connection to the legal conception of race. the first thing, when contemplating the prerequisites of an effective anti-racist strategy situated in a neoliberal/neoracist situation, is a recognition that race is itself a dirty word. it was invented as a way of rationalizing a racial contract that set the terms of domination and exploitation between various populations. in particular, it was invented in the language of objectivity and naturalness—an arena of science in which the creation of human races could justify the exploitation of human beings. in order for racism to happen, humans had to be raced. second, jurists in the united states then created race as a legal concept in light of race as a biological concept. this understanding of race was pivotal not only in the elaboration of slave law and segregation, but in the post-brown era of civil rights law as well. though the biological foundations of race are now understood to be illusory, it nevertheless continues as a background rule for contemporary anti-discrimination law, including recent cases like parents involved. third, parents involved indicates a neoliberal trajectory in civil rights law that is both bizarre and disturbing. a neoliberal conception of race is weird because it at once borrows the whitewashed biology of modern liberalism (it accepts as a background rule that race is biological, but forbids any assumptions about human value to be drawn out of biology), but also rejects the modern affiliation with foreground rules (i.e. anti-discrimination law). the neoliberal conception is disturbing because it fails to inhabit the neoracist world—our actual world—and instead aspires to a colorblind world, a fantasyland in which human beings are naturally raced and in which the role of law should be to leave races, like markets, free to regulate themselves. if an anti-racist jurist is to effectively grapple with a post-racial, neoliberal concept of race, she will have to be crafty. she will have to fight racism without a biological concept of race, which means thinking about how to characterize claims that are cognizable even when the plaintiff’s identity is understood as socially constructed and not naturally immutable. she will have to fight racism without collapsing race into culture in such a way that her efforts avoid being sucked into a whirlpool of competing cultural pluralisms that are totally blind to the racial contract. she will have to fight racism without making the mistake of thinking that while the social reality of race and culture is real enough, that these realities will give her a handle on being able to prove before a judge what a given culture actually is and what it actually desires. in sum, she has to cancel the terms of the racial contract through the use of a concept of race that isn’t actually there (i.e., biology), or through a concept of race that really is there (sociology), but is admittedly so fragmented and shifting (cultural anthropology) that the only way to talk about it is in constructive (legal) terms. so just what is emancipatory about any of this? the basic claim of the article, and the claim of so much critical legal theory over the past several decades, is that law is constitutive of society, even while society simultaneously constitutes law. what that means here is that racial identity is composed of legal rules, and that those rules have deeply political stakes. the upshot is that the legal structure that generates the idea of race is not a matter of biology—it is a matter of law—and that the legal structure is not neutral or natural—it is a matter of contingency and history. thus, when we confront the full meaning of race as a legal concept, we encounter a critical relation between the legal and the political. race as a legal concept vol. 2:1 74 the encounter can and should be deeply empowering. race is not a naturally occurring force in the world over which we have no control, but is instead a constellation of legal rules over which we have total control. further, these rules are the crystallization of particular political desires that wax and wane over time. consequently, when we think about race as a legal concept—a legal concept that retains and rejects certain elements as various political agents emerge and recede—race emerges as a de-reified legal argument. if race can be de-reified and seen as a kind of argument, instead of seen as a thing, one has attained a tremendous amount of power over the concept of race. this seems like a good thing, so long as it is either we that have received the power, or those with which we agree. 4-hipp with last citation (mag edits 1.28.14) 2013 columbia journal of race and law 73 rethinking rewriting: tribal constitutional amendment and reform winner o f the 12th annual national native ameri can law students assoc iat ion (nnalsa) indian law writ ing compet i t ion jason p. hipp* this essay examines the recent wave of american indian tribal constitutional change through the framework of subnational constitutional theory. when tribes rewrite their constitutions, they not only address internal tribal questions and communicate tribal values, but also engage with other subnational entities, i.e. states, and the federal government. this essay applies that framework to a study of tribal constitutional amendment and reform procedures. focusing on the processes of constitutional change produces insight into tribes' status as “domestic dependent sovereigns” in the contemporary era of selfdetermination, a status reflected in the opportunities, and limitations, inherent in tribal constitutions. in so doing, this essay aims to highlight an aspect of tribal constitution writing that enables successful reform and communicates the significance and goals of constitutionalism within the tribal context. i. introduction: theorizing tribal constitutional reform ……………………………………………………………………... 74 ii. background: situating tribal constitutions …………… 77 a. a once strong tradition of sovereignty …………………………….. 77 b. ira constitutions and the “end of assimilation” ………………….. 79 c. assessing ira constitutions …………………………………………. 80 d. the era of self-determination and contemporary constitutional reforms ………………………………………………………………... 82 iii. approaching tribal constitutional rewriting: amendment and reform ……………………………………………. 83 a. amendment ……………………………………………………………. 86 1. ease of amendment …………………………………………... 86 * jason p. hipp is a 2013 graduate of columbia law school and a law clerk at jenner & block. the opinions expressed are those of the author and do not necessarily reflect the views of the firm. the author would like to thank akhil reed amar and the students and faculty of columbia nalsa for their ideas, encouragement, and community. 74 tribal constitutional amendment and reform vol. 4:1 2. administrative approval ……………………………………... 88 b. reform …………………………………………………………………. 91 1. understanding the challenges of reform: the cherokee constitutional convention and reform process of 1999-2003.. 92 iv. conclusion………………………………………………………………... 94 i. introduction: theorizing tribal constitutional reform “[c]onstitutional reform . . . is . . . an exercise of sovereignty. . . . with constitutional reform we’re talking about indian nations doing what they have to do . . . to address common problems . . . . the question should be, . . . as a truly sovereign nation, is this constitution, this form of government, acceptable to us? to our people? that should be the question. and that should be the only question. and if it is acceptable to our people, . . . then it is and that’s the way it should be. that is sovereignty.” -hon. albert hale, former president, navajo nation1 today is an exciting time for constitutional reform within the united states. american indian tribes—numbering 566 recognized by the federal government and an additional 100 tribes recognized by state governments—have engaged in a substantial wave of constitutional amendment and reform, motivated to establish genuinely self-governing institutions and necessitated by the influx of economic development in indian country. the frequency of constitutional redevelopment perhaps rivals the pace of tribal constitution drafting during the era of the indian reorganization act of 1934 (ira). the commissioner of indian affairs at that time remarked that the writing of tribal constitutions happening was “probably the greatest in number ever written in an equivalent length of time in the history of the world.”2 although many tribes possessed full-scale constitutions—written or otherwise—well before the ira,3 that act established a federal government policy and process for adopting tribal constitutions. the act also resulted in both the quick dispatch of field staff to indian reservations to provide technical assistance as well as the attention of washington bureaucrats, who made legal suggestions and revisions.4 ultimately, ninety-seven tribes adopted ira constitutions between october 1935 and january 1939; countless others adopted constitutions through the ira-defined process; and just under 200 possess written constitutions today.5 1 albert hale, firsthand account: why engage in constitutional reform?, in american indian constitutional reform and the rebuilding of native nations 83, 84–85 (eric d. lemont ed., 2006). 2 john collier, from every zenith: a memoir 177 (1963). 3 david wilkins suggests that sixty tribes had constitutions or “documents in the nature of constitutions” on file with the department of the interior prior to the ira, at least forty of which predated the new deal era entirely. david wilkins, introduction to felix s. cohen, on the drafting of tribal constitutions, in american indian tribal law 145 (matthew l.m. fletcher ed., 2011). 4 dalia tsuk mitchell, architect of justice: felix s. cohen and the founding of american legal pluralism 105 (2007). 5 judith resnik, dependent sovereigns: indian tribes, states, and the federal courts, 56 u. chi. l. rev. 671, 704 n.153 (1989); felix s. cohen, indians at work, in american indian tribal law 143 (matthew l.m. fletcher ed., 2011). elmer rusco makes the worthwhile point that the continuing large gap between indian tribes and the number of written constitutions—with roughly only one-third of organized tribes possessing written constitutions—suggests there remains 2013 columbia journal of race and law 75 a growing body of contemporary scholarship documenting tribal constitutions has been forming, but much of this scholarship has focused on the substantive structures of tribal governments being overhauled: the use of separation of powers principles in light of the troubles with overly authoritarian and unitary tribal councils; the need for an independent judiciary; and the crafting of membership requirements.6 however, with limited exceptions, the scholarship has focused less on the processes of tribal constitution drafting. tribes amending existing constitutions or adopting wholly new governing documents do so against the backdrop of existing-yet-outdated ira constitutions, under the federal government’s prevalent supervision, and frequently in response to major crises in tribal government. in this process, tribes make important decisions regarding the frequency and scope of future constitutional reform and the mechanisms they employ to enact reforms. these decisions affect the success of any constitutional rewriting and communicate the significance and goals of constitutionalism within the tribal context. of course, tribes in the united states that are engaged in the constitutional amendment or reform process do not possess the unbounded sovereignty of a separate and independent nation. since early supreme court jurisprudence, indian tribes have operated with a special status termed “domestic dependent nations.”7 despite a constitution that treats tribes largely as separate entities,8 tribes’ dependent sovereign status has been continually reaffirmed and rearticulated in recent supreme court decisions. most notably, indian tribes do not possess criminal jurisdiction over non-indians;9 they possess little civil jurisdiction over non-indians except under exceptional circumstances;10 and congress, under the plenary power doctrine, may legislate regarding indian tribes with virtually unbridled discretion, leaving tribes unable to invoke even the united states constitution as a limitation.11 in accordance with the significant limitations on tribal sovereignty, much scholarship on tribal constitutions focuses on the role of the department of the interior and the bureau of indian affairs (bia) in approving tribal constitutions or amendments, viewing the resulting documents as inauthentic expressions of tribal self-governance.12 for many tribes, constitutional provisions have been enacted not just through tribal expressions of popular sovereignty, but through significant pressure from a sometimes much to learn about non-written or non-constitutional governance among tribes. elmer rusco, the indian reorganization act and indian self-government, in american indian constitutional reform and the rebuilding of native nations 49, 74 (eric d. lemont ed., 2006). 6 see, e.g., american indian constitutional reform and the rebuilding of native nations (eric d. lemont ed., 2006) (largely focusing on historical and substantive accounts of tribal reform or issues regarding the citizenship and legitimacy of tribal governments); miriam jorgensen, rebuilding native nations: strategies for governance and development (2007). 7 cherokee nation v. georgia, 30 u.s. 1, 17 (1831). 8 resnik, supra note 5, at 691 (“to the extent indian tribes are discussed in the constitution, they seem to be recognized as having a status outside its parameters. indian tribes are treated as entities with whom to have commerce and to make treaties.”). 9 oliphant v. suquamish indian tribe, 435 u.s. 191 (1978). 10 see montana v. united states, 450 u.s. 544 (1981) (noting that the crow indian tribe had power to regulate hunting and fishing of non-indians in tribal lands, but not non-indian lands within the reservation); nevada v. hicks, 533 u.s. 353 (2001) (not falling under limited exception, tribal court lacked jurisdiction to adjudicate allegedly tortuous act occurring on-reservation by state warden); plains commerce bank v. long family land & cattle co., 554 u.s. 316 (2008) (holding that tribal court lacked jurisdiction over discrimination claim against a non-indian over sale of fee land). 11 santa clara pueblo v. martinez, 436 u.s. 49, 56 (1978) (“congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess.); id. at 58 (“this aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of congress.”). 12 rusco, supra note 5 (“graham d. taylor and several other scholars have argued that [the ira] forced cookiecutter non-native governments on most tribes or nations.”); felix s. cohen, on the drafting of tribal constitutions (2007). 76 tribal constitutional amendment and reform vol. 4:1 hostile separate sovereign. for example, although congress ultimately rejected mandatory secretarial approval of every tribe’s constitution or proposed amendment, many tribes nonetheless included such provisions in their constitution, whether in part because of bia pressure or the security of federal support.13 other scholars emphasize the bia’s development of a “model constitution,” which it expected tribes to adopt with only minor adjustments.14 by contrast, this essay advocates viewing tribal constitutional change through the lens of tribal agency, albeit agency situated within and limited by the super-sovereign federal government. similar to judith resnik’s approach to tribal courts and the federal court system, this essay argues that tribal constitutions must be understood as “a product of the interaction between tribal customs and the bureau of indian affairs, the department of interior, and federal indian policy.”15 tribes remain (involuntarily) dependent, and have molded constitutions under the sometimes strong-arm of the federal government, but tribes’ contemporary efforts to draft new constitutions remain both engaged with and resistant to this super-sovereign. as resnik notes, “[t]here are assimilationist pressures but not complete assimilation. something more than subdivisions of the federal government currently exist.”16 to better understand the present condition of tribal constitutional change and its implications for tribal governance within the federal system, this essay will examine the processes of constitutional amendment and reform within the american indian tribal context. first, part ii reviews the history of tribal constitution writing. in particular, part ii.a explores the existence of tribal constitutions, or similar documents, prior to the indian reorganization act. part ii.b recounts the ira’s process of tribal constitution drafting, which standardized procedures for drafting and amending constitutions and continues to exert considerable influence over tribal constitutional change today, while part ii.c assesses the impact and success of the ira constitution-drafting project. part ii.d reviews the present moment of frequent constitutional rewriting in light of increased tribal self-governance. part iii then examines tribal constitutional amendment and reform through a comparative analysis with united states federal and state constitutions, as well as through theory on subnational constitutional systems. while an imperfect analogy, emphasizing tribal constitutions’ role in a subnational system helps to explain important structural aspects about tribal constitutions, such as their relative ease of amendment.17 13 resnik, supra note 5, at 712 n.186; 713 n.189 (noting that the supreme court’s preemption doctrine might result in advantages to indian tribes from federal involvement in tribal constitution drafting). 14 graham d. taylor, the new deal and american indian tribalism 37 (1980). rusco, supra note 5, at 74, rejects the notion of a “model constitution,” suggesting that non-lawyer employees within the bia developed rough drafts of constitutions with native leaders prior to the involvement of washington d.c.-based attorneys, and that the bia specifically decided not to prepare a model constitution. 15 resnik, supra note 5, at 734. 16 id. at 750. compare the federal influence on ira constitutions with the south african constitution, which prescribes a model for provincial constitutions to adopt within the national constitution and allocates an ongoing role for federal judicial review of all subnational constitutional changes prior to their taking effect, clearly defining and limiting the permissible range of local variation. see robert f. williams & g. alan tarr, subnational constitutional space: a view from the states, provinces, regions, länder and cantons, in federalism, subnational constitutions, and minority rights 3, 7–9 (g. alan tarr, robert f. williams & josef marko eds., 2004). 17 for his part, ira architect felix cohen explicitly stated that many governmental functions included in tribal constitutions were modeled on municipalities. david e. wilkins, introduction to felix cohen, on the drafting of tribal constitutions xi, xxii (2007) (noting cohen suggested tribal governments were “to be like town governments, except that they would have federal protection and their special rights”). although many tribes may possess the population size of small towns, larger tribes possess population sizes closer to small states. for example, the 2010 u.s. census reported 287,000 people identify as navajo, with an on-reservation population of 173,667 and 284,247 people 2013 columbia journal of race and law 77 part iii begins by examining the frequency and scope of tribal constitutional change. part iii.a focuses on constitutional amendments, or small-scale changes to existing constitutions. this section considers provisions, such as mere majority vote provisions and voter initiative capabilities, that make constitutional amendment relatively frequent, as well as provisions that limit amendment, such as the widespread requirement for approval from the secretary of the interior prior to changes taking effect. in particular, section iii.a considers the cherokee nation’s more than twenty-year-long attempt to adopt a new constitution, approved by tribal voters in 2003. this pursuit ultimately failed because of a voluntarily included provision in the previous cherokee constitution requiring secretarial approval. part iii.b focuses on reform, or more wholesale constitutional change. it considers the circumstances motivating frequent tribal constitutional reform today through a case study of the cherokee nation constitutional convention and reform process from 1999 until 2003. among the factors motivating the drafting of entirely new constitutions are the need for a plethora of new governance provisions, major governance disputes within the existing tribal government, and the difficulties of defining eligible tribal members and reform participants. part iv concludes by suggesting that federal influence on tribal constitutional drafting is not unidirectional, making tribal constitutions an important site for understanding the larger american constitutional landscape. ii. background: situating tribal constitutions a. a once strong tradition of sovereignty prior to the arrival of european settlers in north america, native american peoples exercised largely independent and uninterrupted sovereignty on their traditional lands.18 governance often did not occur on the level of the entire tribe or nation but instead through loose and decentralized forms such as villages, lineages, clans, and bands.19 subgroups exercised considerable independence, and a consensusoriented decision-making model tended to encourage groups to separate and make their own decisions rather than enforce a majority will upon a dissenting minority.20 although most tribes did not govern through formal constitutions, approximately sixty tribes had constitutions or similar documents on file with the department of the interior prior to the federal policy of encouraging and establishing tribal governments ushered in by the ira.21 the earliest tribal constitutions included creation stories and other narratives that described fundamental community identify as cherokee. u.s. census bureau, 2010 census brief: the american indian and alaska native population, at 14, 17, available at http://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf. 18 william c. canby, jr., american indian law 123–124 (1998) (noting that in early united states history “the indian territory was entirely the province of the tribes, and they had jurisdiction in fact and theory over all persons and subjects present there.”). 19 duane champagne, remaking tribal constitutions: meeting the challenges of tradition, colonialism, and globalization, in american indian constitutional reform and the rebuilding of native nations 11, 14 (eric d. lemont ed., 2006). 20 id. 21 wilkins, supra note 17, at xxi. at least forty of these documents predated the new deal era entirely, although many tribes began to adopt constitutions when it became clear that federal policy would encourage such documents prior to the official passage of the ira. 78 tribal constitutional amendment and reform vol. 4:1 values and governance structures.22 although never proven, some claim that the united states constitution’s preamble was inspired in part by a haudenosaunee treaty from 1520, which began “we, the people, to form a union, to establish peace, equity, and order. . . .”23 south carolina’s john rutledge, chairman of the committee of detail at the 1787 constitutional convention in philadelphia, apparently admired the iroquois legal system and read from the treaty to open a session of the convention.24 even prior to the ira, tribes’ desire and need to earn credibility from and manage relations with the federal government resulted in some of the first written tribal constitutions. several southeastern tribes adopted constitutions in the first half of the nineteenth century to manage relations with the united states government.25 for example, the cherokee nation, motivated by the need to demonstrate its “civilized” status in the face of increasing infringement on cherokee land, adopted a constitution in 1827 that established a three-branch government, a bicameral legislature, and a bill of rights.26 other tribes adopted constitutions to facilitate a legal claim against the federal government. for example, the turtle mountain tribe’s constitution was written in the twentieth century to advance its claim of restitution for an unconscionable nineteenth century treaty negotiation.27 many tribes possessed constitutions prior to the ira only to have the united states government abolish the tribal government altogether. for example, congress’ 1906 five tribes act effectively abolished the tribal courts and governments of the choctaw, chickasaw, cherokee, creek, and seminole tribes despite the existence of written constitutions.28 during the allotment era, the united states abolished the 1881 osage nation tribal constitution after the discovery of oil on osage territory led the united states to assume jurisdiction over tribal membership and property.29 thus, well before the ira, many american indian tribes and communities possessed documents or ideas achieving constitutional significance, sometimes, but not always, prompted by tribal interaction with the united states government. these pre-ira examples demonstrate a clear link between the drafting of written constitutions and tribal attempts to establish legitimacy in the eyes of a federal government exercising increased authority over them. the drafting accelerated dramatically as the ira shifted official federal policy from tribal assimilation to tribal self-governance. 22 felix s. cohen, cohen’s handbook of federal indian law § 4.05 (nell jessup newton ed., 2005); rennard strickland, wolf warriors and turtle kings: native american law before the blue coats, 72 wash. l. rev. 1043, 1053– 54 (1997) (describing the oral constitutional tradition of cheyenne, comprised of at least five varying stories exploring the origins of cheyenne law and government, usually involving a woman who was creator and who passed down information about the uses of buffalo). 23 charles l. mee jr., the genius of the people 237 (1987). even if not true, felix s. cohen, a prominent influence on ira tribal constitutions, believed that this influence of the iroquois constitution on the u.s. constitution was true. see mitchell, supra note 4, at 78. 24 mee, supra note 23, at 237. 25 cohen, supra note 22, § 4.05, at n.561; gavin clarkson, reclaiming jurisprudential sovereignty: a tribal judiciary analysis, 50 u. kan. l. rev. 473, 475 (2002) (noting that the choctaw, originally based in the mississippi river valley, first wrote their constitution in 1825). 26 eric lemont, overcoming the politics of reform: the story of the cherokee nation of oklahoma constitutional convention, 28 am. indian l. rev. 1, 5 (2003-04). 27 see keith steven richotte jr., “we the indians of the turtle mountain reservation . . .”: rethinking tribal constitutionalism beyond the colonialist/revolutionary dialectic (june 2009) (unpublished ph.d. dissertation, university of minnesota), available at http://conservancy.umn.edu/bitstream/54709/1/richottejr_umn _0130e _10395. pdf. (examining episodes of constitutional history for the turtle mountain indians). 28 see clarkson, supra note 25, at 478–79 (describing 1906 five tribes act); lemont, supra note 26, at 5 (describing the deterioration of the cherokee nation’s tribal government despite its drafting of a second constitution in present-day oklahoma shortly after its mid-nineteenth century removal from georgia). 29 harv. project on am. indian econ. dev., honoring nations: 2008 honoree 1, available at http://hpaied.org/images/resources/publibrary/osage%20nation%20government%20reform%20initiative.pdf. 2013 columbia journal of race and law 79 b. ira constitutions and the “end of assimilation” the indian reorganization act of 1934 sought to encourage tribal self-governance and the reservation system.30 it established procedures and administrative infrastructure for approving tribal constitutions and taking land into trust on behalf of tribes.31 the ira also officially declared the end of the federal government’s allotment policy, which had sought to assimilate indians into american society by breaking up reservations into individual parcels, giving a 160-acre homestead to individual indians, and selling “surplus” lands to non-indians.32 thus, the ira reversed allotment policy, which envisioned the end of indian tribes as separate sovereigns.33 whether the ira fostered a form of genuine selfgovernance or merely continued to accomplish allotment’s assimilationist ends remains debated.34 unlike previous federal policies toward indians, tribes had to “opt in” to be governed by the ira, and referendums were held at reservations across the country. ultimately, 181 tribes opted in, even though many of the approving tribes were brought under the fold through somewhat nefarious means.35 however, the seventy-seven tribes that rejected the ira—the largest being the navajo nation—still received federal recognition under a later bureau of indian affairs provision that declared such tribes would be treated the same as the approving tribes,36 and could also adopt governing documents through procedures other than those set forth in the ira.37 under one of the ira’s most far-reaching provisions, tribes had the option to adopt a constitution with assistance from the department of the interior’s office of indian affairs (oia), later renamed the bureau of indian affairs.38 tribes and the oia reacted swiftly to this provision, with sixtyfive tribes establishing constitutions by 1937—less than three years after the passage of the act—and ninety-three tribes doing so by 1945.39 the oia worked closely with tribes during their constitutional drafting and ratification processes. non-attorney field agents from the oia organization division traveled to reservations to promote the adoption of written constitutions.40 agents forwarded proposed draft constitutions to the oia’s washington d.c. office, where a small team of lawyers ensured the documents were “legally correct.”41 the oia returned proposed changes to the indians who had drafted the constitution, who 30 l. scott gould, the consent paradigm: tribal sovereignty at the millennium, 96 colum. l. rev. 809, 832 (1996). 31 william rice, the indian reorganization act, the declaration on the rights of indigenous peoples, and a proposed carcieri “fix”: updating the trust land acquisition process, 45 idaho l. rev. 575, 579–83 (2009) (discussing ira provisions providing a mechanism for the tribal acquisition of land). 32 see, e.g., mitchell, supra note 4, at 68–69. 33 gould, supra note 30, at 832. 34 cf. rusco, supra note 5, with thomas biolsi, organizing the lakota: the political economy of the new deal on the pine ridge and rosebud reservations 85–108 (1992). 35 mitchell, supra note 4, at 110–11. a bia legal opinion read the referendum requirement such that indians not participating in the referendum—which was widespread given the lack of trust in the statute and federal government policy more generally—ultimately counted as votes in favor of ira adoption rather than against; this was because the ira required a majority of eligible voters to reject the document to avoid taking effect. furthermore, bia bureaucrats pressured tribes to adopt by withholding federal benefits or guidance on constitution drafting until the ira referendum had been held. id. 36 wilkins, supra note 17, at xxii. 37 25 u.s.c. § 476(h)(1) (2006). 38 25 u.s.c. § 476(a) (2006). 39 mitchell, supra note 4, at 105–08. 40 rusco, supra note 5, at 64. 41 id. 80 tribal constitutional amendment and reform vol. 4:1 either accepted or resisted the changes.42 one scholar assessed the oia’s legal reviews as leaving a “substantial impact” on the content of the constitutions.43 finally, approval, through both a tribal election and sign-off from the secretary of the interior, was required before the constitution would take effect.44 a year after the passage of the ira, the organization division set an ambitious goal of working with thirty tribes to achieve written constitutions within a year’s time.45 this frantic pace of constitution drafting, combined with the need for administrative approval incentivizing both field agents and tribes to prefer boilerplate provisions, resulted in a substantial number of tribal constitutions with identical or nearly identical clauses.46 the department of the interior also exerted its influence through a provision, included by many tribes at the oia’s urging, requiring the secretary of the interior to approve any subsequent amendments to the constitution or ordinances passed pursuant to the new constitution.47 c. assessing ira constitutions more than eighty years after the ira’s passage, many tribal constitutions’ design failures have become evident. many ira constitutions are unable to adapt to rapid economic development, increasing on-reservation interactions with nonmembers, and the shifting set of a tribe’s limited powers. most ira tribal constitutions created a strong, unicameral legislative body—the tribal council—which integrated executive, legislative, and judicial functions, often in a small group of six members, without separation of powers.48 because many tribal constitutions do not provide for an independent judiciary, councils have few limits on their authority. with all blame for tribal decisions or problems attributable to the council, elections frequently result in high rates of turnover, contributing to unstable government institutions, frequent allegations of corruption, and recurring constitutional crises.49 moreover, ira constitutions failed to engage with traditional tribal values, culture, and existing political institutions. by adopting a system of governance on the tribal level and using direct elections by tribal members to seat council members, vote on referenda, and approve constitutional amendments, ira constitutions ignored tribal villages, clans, bands, families, and regions as units of governing bodies.50 moreover, ira constitutions’ use of majority voting models tended to displace consensus 42 id. at 64–65. 43 id. at 65. 44 id. 45 rusco, supra note 5, at 73. the pace of reforms was significantly attributable to internal pressures felt by the oia, pressures the agency passed on to tribes. because congress had passed but not funded the ira prior to a recess, the newly formed organization division launched an “immediate program” on july 31, 1934 to organize as many new tribal governments as possible in the five months prior to the next congressional session beginning january 1935 to prove the project’s goals and capability. the program identified thirty tribes as possible targets for immediate constitutional implementation and later whittled down the list to twelve. see mitchell, supra note 4, at 105–08. 46 mitchell, supra note 4, at 107. 47 resnik, supra note 5, at 712; rusco, supra note 5, at 60. 48 champagne, supra note 19, at 20. 49 id. 50 see id. for example, the creation of a hopi tribal council jettisoned a system based on a collection of separate village governments—“each an elaborate, decentralized theocracy”—with authority affected by clan, village, kikmongwi (the village religious leaders), and masau’u, a mythical hopi creation figure governing death. the tribal council was referred to as “the white man’s government,” and when religious leaders refused to certify council members, as required under the new constitution, the council eventually disbanded in 1943, seven years after its creation. charles f. wilkinson, home dance, the hopi, and black mesa coal: conquest and endurance in the american southwest, 1996 b.y.u. l. rev. 449, 458–59 (1996). 2013 columbia journal of race and law 81 based models of traditional tribal governance.51 in addition, while codifying membership provisions, many constitutions exacerbated existing intratribal cultural, religious, or ethnic divisions. this resulted in the constitutions’ own eventual undoing when membership conflicts impacted the stability of tribal government or the original ira constitution entirely.52 bia pressure for the swift creation of an election apparatus to approve the ira and then a constitution had the effect of delaying and short-changing debate among tribal members regarding membership criteria.53 despite the frequently deleterious effects of ira constitutions on tribal self-governance, scholars differ on the extent of the federal government’s role during the constitutional drafting and approval process, and the correlative legitimacy of ira constitutions. some view the constitutions as “largely imposed” by bia officials, and membership-ratifying referenda as “structured with heavy indian service influence—and without widespread community consensus or participation.”54 these scholars emphasize the federal influence on such constitutions: bia agents charged with approving constitutional provisions sometimes threatened the existence of a tribe’s reservation land, federal recognition or funding if the tribe did not incorporate bia suggestions.55 other scholars note that the bia circulated only excerpts of existing tribal constitutions, not a “model constitution,” that tribes often successfully resisted incorporating specific provisions requested by the bia, and that tribal membership approval through referendums legitimated the constitutions.56 as part iii will demonstrate, both groups of scholars are correct: as dependent sovereigns, tribal constitution writing has inevitably occurred under the shadow of the federal government. the ira-era influence on tribal constitution drafting is merely one instance of that structural arrangement. today, congressional plenary power and bia approval remain real constraints on the scope and mechanisms of tribal constitutional writing. yet, as legitimate, albeit limited, sovereigns, tribal constitution writing plays a real role in the subnational sphere, creating constitutions responsive to, but not wholly subsumed by, the federal framework. 51 see, e.g., biolsi, supra note 34, at 34–45 (describing lakota okaspé yamni, literally translated as three-fourths majority councils, based on a three-fourths approval requirement for any future indian land sales originally included in the fort laramie treaty of 1868 but later adopted as the basis for future “traditional” governance, until these councils’ abrogation by the majority-rule tribal councils of the ira era). 52 for example, the santa clara pueblo amended its 1935 constitution just four years after its creation to remove two specific paths to tribal membership: (1) children born to female members of the tribe and non-members and (2) persons naturalized into the tribe. resnik, supra note 5, at 705. given that children born to male tribal members and a non-member were accorded membership status, and that the tribe had never codified its membership rules in such a way before, this led to a later tribal dispute and eventually a failed equal protection claim under the indian civil rights act, decided in santa clara pueblo v. martinez, 436 u.s. 49 (1978). 53 rusco, supra note 5, at 60. 54 champagne, supra note 19, at 19. 55 matthew l.m. fletcher, american indian tribal law 148–49 (2011) (describing bia refusal to approve proposed grand traverse band of ottawa and chippewa indians constitutional provision regarding membership and its threats to refuse to declare a reservation or even reconsider federal recognition of the band entirely, among other steps). 56 see, e.g., rusco, supra note 5. 82 tribal constitutional amendment and reform vol. 4:1 d. the era of self-determination and contemporary constitutional reforms the increasingly apparent shortcomings of ira constitutions—often culminating in the formation of dual governments or constitutional standoffs among competing branches of tribal governments57—have coincided with the exercise of increased powers of self-governance. beginning in the 1960s, a number of federal statutes ushered in a new era of tribal sovereignty: the indian self-determination and education assistance act of 197558 allowed the federal government to enter contracts directly with a tribe rather than through the bia; the indian child welfare act of 197859 recognized tribal courts as the proper forum for child welfare and custody cases involving native american children; and the indian gaming regulatory act of 1988 fostered authority to develop casinos for the economic benefit of the tribe and its members.60 although the powers of indian tribes remain sharply delimited by their dependent sovereign status, self-government remains the greatest power that contemporary tribes possess and need to enunciate in their constitutions.60 this power includes the ability to form a government, define membership criteria, regulate members’ domestic relations, prescribe rules of inheritance, levy dues, fees and taxes upon tribal members and nonmembers conducting on-reservation business, exclude nonmembers from the reservation, regulate tribal property, and establish a justice system to resolve most offenses and disputes between tribal members.61 with tribes exercising expanded authority, constitutional reform to manage these increased powers has become commonplace. today, dozens of tribes are engaged in the processes of constitutional reform,62 either proposing significant amendments or adopting new constitutions wholesale. although each tribe must tailor its rewriting to its unique history, values and culture,63 many tribal constitutions’ common ira heritage translates into shared reform obstacles and goals today. confronting political instability, institutional incapacity, and governance mechanisms that fail to reflect a unique cultural heritage remain at the center of many tribes’ agendas, often through designing a system with a division of branches, a strong executive, and an independent judiciary. some commentators have compared tribes’ current need to create a strong centralized authority capable of managing complex 57 exec. session on am. indian const. reform, report on best practices in developing executive processes of american indian constitutional reform (2002), available at http://hpaied.org/images/resources/publibrary/may%20summary%20report.pdf [hereinafter exec. session]. many recent tribal constitutional crises have involved a tribe’s disenrollment of often long-standing members. see, e.g., carmen george, chukchansi tribal council seats still vacant, sierra star (mar. 29, 2012, 10:49 am), http://www.sierrastar.com/2012/03/29/57761/chukchansi.html (describing standoff between four newly elected tribal council members against recent disenrollments and existing tribal council that refused to recognize the new members). 58 pub. l. no. 93-638, 88 stat. 2203 (1975) (codified as amended at 25 u.s.c. §§ 450-458bbb-2 (2006)). 59 pub. l. no. 95-608, 93 stat. 3071 (1978) (codified at 25 u.s.c. §§ 1901-1963 (2006)). 60 see montana v. united states, 450 u.s. 544, 563–64 (1981) (noting tribes’ dependent status is inconsistent with control of external relations, but that “the powers of self-government, including the power to prescribe and enforce criminal laws, are of a different type. they involve only the relations among members of a tribe. thus, they are not such powers as would necessarily be lost by virtue of a tribe’s dependent status.” (alteration in original) (quotation marks omitted)). the court went on to define internal relations as the “power to punish tribal offenders, . . . determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.” id. 61 eric d. lemont, introduction to american indian constitutional reform and the rebuilding of native nations 2 (eric d. lemont ed., 2006). 62 id. at 3; exec. session, supra note 57. 63.joseph kalt, constitutional rule and the effective governance of native nations, in american indian constitutional reform and the rebuilding of native nations 184, 186 (eric d. lemont ed., 2006); lemont, supra note 61, at 12. 2013 columbia journal of race and law 83 twenty-first century dynamics to the u.s. founders’ need to rewrite the weak and ineffective articles of confederation.64 because tribes do not institute constitutional reforms on a blank slate, however, tribes also confront questions about the mechanisms through which reform can be achieved, as well as the design of effective mechanisms for future constitutional change. tribes still draft constitutions alongside a bia handbook that includes proposed provisions, format and content, and the bia offers both informal and formal review processes throughout the drafting process.65 despite this, many tribes have engaged in reform processes that depart substantially from ira and bia boilerplate provisions, reflecting a broader renewal of contemporary self-governance.66 at the same time, amendment and reform occurs against the backdrop of the constitutions’ subnational status, attempting to govern a discrete population while dependent upon and responsive to a broader national government. these process questions—about the structural possibilities and limitations on tribal constitutional amendment and reform—will form the focus of the remainder of the paper. iii. approaching tribal constitutional rewriting: amendment and reform “[n]o society can make a perpetual constitution, or even a perpetual law. the earth belongs always to the living generation. they may manage it then, and what proceeds from it, as they please, during their usufruct. they are masters too of their own persons, and consequently may govern them as they please. but persons and property make the sum of the objects of government. the constitution and the laws of their predecessors extinguished them, in their natural course, with those whose will gave them being. this could preserve that being till it ceased to be itself, and no longer. every constitution, then, and every law, naturally expires at the end of nineteen years. if it be enforced longer, it is an act of force and not of right.” —thomas jefferson, letter to james madison, september 6, 1789 67 “look and listen for the welfare of the whole people and have always in view not only the present but also the coming generations, even those whose faces are yet beneath the surface of the ground—the unborn of the future nation.” —great law of the iroquois68 64 champagne, supra note 19, at 16. 65 resnik, supra note 5, at 714. 66 the white earth nation constitutional reform process, which won membership approval in a november 2013 tribal referendum, offers a leading example of the dynamic and wholesale reform processes tribes are currently undertaking. the new constitution replaces an existing ira-era constitution “that was forced on us by the u.s. government.” terry janis & jill doerfler, educational team will visit communities, host seminar, white earth nation, http://www.whiteearth.com/programs/?page_id=515&program_id=24 (last visited nov. 17, 2013). the tribe enlisted white earth member and noted literary author and scholar gerald vizenor as lead writer for the proposed constitution, which engaged with indigenous literary traditions. between 2007 and 2009, white earth convened four constitutional conventions, where appointed delegates and interested tribal members discussed important tribal values, including respect, love, family and tolerance, and how those values could be used to “heal our nation.” prior to the referendum, the nation published summaries and explanations of the proposed changes in a tribal newspaper and on facebook, hosted community education forums onand off-reservation, and a day-long constitution seminar. see id.; jill doerfler, white earth reconvenes constitutional convention, anishinaabeg today, jan. 16, 2008, at 1; lisa brooks, the constitution of the white earth nation: a new innovation in a longstanding indigenous literary tradition, stud. in am. indian literatures, no. 4, winter 2011, at 48. see generally jill doerfler & gerald vizenor, the white earth nation: ratification of a native democratic constitution (2012). 67 jefferson: political writings, cambridge texts in the history of political thought (joyce appleby and terence ball eds., 1999). 68 the constitution of the iroquois nations: the great binding law, indigenous people, http://www.indigenouspeople.net/iroqcon.htm (last updated mar. 30, 2012). 84 tribal constitutional amendment and reform vol. 4:1 this part considers the scope and frequency of constitutional change as related to a constitution’s location within a subnational structure and an important avenue for examining constitutional meaning. this part contends that tribal constitutions have undergone the most frequent wholesale constitutional reform within the american constitutional structure. this fact is both a product of their subnational status and a reflection of tribal values and approaches to governance. subnational constitutionalism can be understood as a “two-tiered constitutional structure that establishes a superior state and a group of subordinate states that exercise overlapping control of a single population,” with both the superior state and the subordinate states having their own constitutions.69 the subnational framework situates tribal constitutions within a dialogue between sovereign tribal nations and the federal system that has cast a long shadow over tribal self-governance. in doing so, this framework recognizes tribal constitutions, alongside the federal and state constitutions, as “interdependent features of a greater american constitutional structure,” with each “dependent upon, limited by, and to some extent the product of . . . our national constitutional environment.”70 at any level of the national constitutional structure, the scope of constitutional change can be categorized into two basic approaches: amendment or reform. amendment, or “ordinary constitutional reform,” involves small-scale adjustments designed to tackle specific problems, adding onto, and thereby preserving, existing governance documents.71 reform, on the other hand, involves a “more fundamental reconsideration of constitutional foundations. it introduces changes of considerable breadth and impact, changes that substantially affect the operation of [the] government or . . . public policy.”72 a brief comparative analysis of constitutional change73 reveals that tribes are the only force in the american constitutional structure still engaged in frequent reform. the united states constitution has not experienced reform for well over 200 years.74 although new american state constitutions and constitutional conventions were commonplace in the nineteenth century, the twentieth century witnessed far fewer of both: only twenty-three new constitutions compared to ninety-four in the previous century.75 since 1984, that pace has ground to a halt—there has been only one new state 69 tom ginsburg & eric a. posner, subconstitutionalism, 62 stan. l. rev. 1583, 1584 (2010). the subnational analogy is an imperfect one. see g. alan tarr, federalism, subnational constitutionalism and the protection of minority rights in the united states 19 (2001), available at http://camlaw.rutgers.edu/statecon/ publications/aver2.pdf (asserting that tribes are not component units in the u.s. federal system but rather “semiautonomous entities”). however, as “domestic dependent nations” subject to congressional plenary power, tribal sovereignty is clearly limited and structured by the federal superstate. id. 70 louis d. bilionis, on the significance of constitutional spirit, 70 n.c. l. rev. 1803, 1805 (1992) (emphasis in original). 71 g. alan tarr, introduction to 1 state constitutions for the twenty-first century 1, 2 (g. alan tarr & robert f. williams eds., 2006). 72 id. 73 scholarship on u.s. federal and state constitutions is deployed not as a substantive model for tribes existing in very different political, historical and geographic circumstances, but rather for comparative insight into the constitutional amendment and reform processes relevant to the current wave of tribal constitutional redrafting. although acknowledging the important role of informal constitutional change, at least at the federal level—see, e.g., bruce ackerman, we the people: foundations 113–14 (1991) (discussing the new deal supreme court’s substantial interpretive rewriting of the constitution)—this paper will confine itself to a comparison of formal constitutional change, although the part on reform raises questions that involve interplay between the formal and the informal. 74 this statement considers only formal constitutional reform. informal, non-textual constitutional reform arguably occurred during the civil war/reconstruction and new deal eras. even still, federal constitutional reform remains far more infrequent than state and tribal iterations. 75 bruce e. cain & roger g. noll, malleable constitutions: reflections on state constitutional reform, 87 tex. l. rev. 1517, 1520 (2009). 2013 columbia journal of race and law 85 constitution and no constitutional conventions.76 although statistics regarding tribal constitutions are difficult to compile, it is clear that dozens of tribes have adopted new constitutions or engaged in wholesale constitutional reform processes within the last twenty years.77 in addition to the scope of constitutional change, the frequency of change also affects the interpretation and role of the founding document. the federal constitution’s relative durability and unchanging nature fosters mystique as compared to state constitutions’ frequent changes and detailed “constitutional legislation” provisions that are more on par with ordinary statutes.78 durable constitutions serving as the supreme law prevent temporary majorities from passing amendments that harm fundamental governing principles and also allow citizens to rely on a consistent form of government.79 on the other hand, malleable constitutions more easily accommodate significant societal changes, including changes to population, economy, threats to sovereignty, and so forth.80 thus jefferson’s suggestion in a letter to madison, quoted above, that constitutional provisions should sunset every nineteen years to allow a new generation of citizens to design a constitution appropriate to their contemporary context. the pace of change to tribal constitutions more closely parallels that of state constitutions than that of the federal constitution and is consistent with the theory of subnational constitutions more generally.81 since the adoption of the bill of rights, the united states constitution has been amended less than once per decade, and the original document still governs.82 in contrast, only nineteen states still retain their original constitution, the majority of states have had three or more different constitutions, and louisiana and georgia have had eleven and ten iterations.83 on average, state constitutions have 120 amendments.84 although the history of tribal constitutions is uneven, the cherokee, for example, have had four different constitutions, and most tribes engaging in contemporary reform are adopting either their second or third constitution within the last seventy-five years.85 thus, tribal constitutional change occurs at both greater scope and frequency compared to the federal or state models. the federal model has tended to avoid formal reform in favor of informal constitutional changes outside the document as well as the occasional amendment, while states have 76 id. 77 recent examples of tribes undertaking wholesale constitutional reform include the chickasaw (1990), pala band of mission indians (1997), eastern shawnee tribe of oklahoma (1999), crow (2001), turtle mountain band of chippewa (2001), cherokee (2003), osage (2006), citizen potawatomi nation (2007), ho-chunk nation (2007), white earth nation (2007), gila river indian community (2009), and eastern band of cherokee (2011). 78 ginsburg and posner posit that subnational constitutions’ systematic disposition in favor of constitutional reform and amendment suggest that subconstitutions are closer to ordinary statutes than are superstate constitutions. ginsburg & posner, supra note 69, at 1600–01. 79 cain & noll, supra note 75, at 1517–18. 80 id. at 1518. 81 see, e.g., ginsburg & posner, supra note 69, at 1599-1601 (proposing that subconstitutions weaken their amendment procedures because separation of powers and rights are guaranteed at the federal level and reporting that no subconstitutional system is more difficult to amend than the constitution of its super-state). 82 g. alan tarr, understanding state constitutions 23 (1998). 83 id. at 22, 24. 84 id. at 24. 85 see, e.g., d. jay hannah, the 1999 constitution convention of the cherokee nation, 35 ariz. st. l. j. 1, 3–6 (2003) (describing constitutions drafted by the cherokees in 1827, 1839, 1976, and 1999); david j. carlson, trickster hermeneutics and the postindian reader: gerald vizenor’s constitutional praxis, stud. in am. indian literatures, winter 2011, at 13, 26 (comparing new constitution of the white earth nation with earlier ira-era revised constitution and bylaws of the minnesota chippewa tribe); clarkson, supra note 25, at 487 n.87 (describing the approval of choctaw’s 1983 constitution, its third following a 1979 constitution and its original 1860 constitution, after a 1976 district court decision affirmed the continuing validity of the first constitution, permitting renewed self-government). 86 tribal constitutional amendment and reform vol. 4:1 eschewed large-scale reform in favor of specific constitutional amendments. clearly, tribal constitutions’ subnational status impacts this tendency: major rights of tribal members are guaranteed by federal statutes; the limited powers of tribal governance tend to make tribal constitutions resemble ordinary legislation, filling in the details where larger structural issues are determined elsewhere; and tribes must navigate the formal (ira) and informal (lure of benefits, need for legitimacy, advantages of organized structure to interact with the federal government) pressures exerted by the super-state. a. amendment “[t]o me it seems not very important exactly what constitution you adopt to begin with because you can always improve it. you can improve it twice a year if you want to. the thing to do is to get organized.” — john collier, commissioner of the bureau of indian affairs (1933-45), urging passage of the oglala sioux constitution despite opposition to its substance86 1. ease of amendment many tribal constitutions specify relatively easy amendment procedures, commonly featuring a majority approval requirement and multiple routes to propose an amendment, including voter initiatives.87 this ease is consistent with the bia’s standard amendment provision, subnational constitutional theory, and historical accident from the era of ira constitution drafting. the bia’s current standard amendment provision88 recommends: • an amendment proposed by a majority of tribal council members or through a petition signed by at least 30% of qualified voters89 • a majority vote of qualified voters at a special election called by the secretary of the interior90 86 biolsi, supra note 34, at 96. 87 see, e.g., rosebud sioux tribe const. art. ix, § 1 (majority approval requirement for qualified voters to approve amendment); id. § 2 (providing that petition signed by 30% of voters in the last election results in tribal constitution convention to consider amendments); mohegan tribe const. art. xvii (providing for majority vote requirement to amend constitution so long as 30% of registered voters participate); id. art. x, § 2 (k) & (l) (empowering council of elders to recommend and place constitutional amendments to vote); id. art. xii, § 2 (creating petition procedure for 40% of registered voters to propose amendments). 88 bureau of indian affairs, sample constitution of the example tribe, available at http://www.bia.gov/cs/groups/public/documents/text/idc-001884.pdf. 89 variations include camp mcdowell indians of ariz. const. art. iv, § 1 (amendment proposal by 2/3 of qualified indian voters on reservation or unanimous vote of five-member council); chickasaw nation const. art. xviii, § 1 (initiative requires 20% of voter support); blackfeet tribe const. art. x (amendment proposal requires 2/3 of council or 1/3 of qualified voters); cheyenne-arapaho tribes of okla. const. art. xiii (no provision for voter initiative, only the tribal council may propose amendments); s. ute indian tribe const. art. xii, § 1 (initiative requires only 20% of voters); choctaw nation const. art. xviii, § 1 (requiring votes of eight of twelve tribal council members to propose amendments). 90 variations include choctaw nation const. art. xviii, § 2 (requiring 51% approval of total number of qualified voters at last election and no separate minimum participation requirement); nez perce tribe const. art. ix, § 1 (requiring 2/3 approval at referendum); white earth nation constitution, ch. 20 (requiring 2/3 of recorded eligible votes in an election or referendum to amend constitution), available at http://www.whiteearth.com/data/upfiles/files/ proposed_white_earth_constitution_2.pdf. a number of pre-ira constitutions provided an amendment approval procedure through regular meetings of legislative bodies. a pre-ira constitution of the turtle mountain band of chippewa indians did not submit constitutional amendments for direct vote; instead, they could be proposed and approved at any regular meeting of the advisory committee or tribal council. turtle mountain band of chippewa indians const. of 1932 art. vi, § 1. similarly, the oglala sioux tribe empowered the tribal council of forty delegates to amend the constitution by a majority vote at any regular council meeting so long as the proposed amendment was filed with thirty days notice. oglala sioux tribe const. of 1933 art. viii. 2013 columbia journal of race and law 87 • participation of at least 30% of eligible voters in the special election91 • approval by the secretary of the interior the core of these provisions—allowing proposals through majority legislative agreement or popular initiative and majority approval through referendums—place the constitutional amendment process of most tribes much closer to state constitutional models than the federal constitution.92 if tribal constitutions experienced a correlation between the flexibility and frequency of amendments93—i.e. tribal constitutions are amended frequently because it is relatively easy to do so—amendments to tribal constitutions would be substantial. the ease of state constitutional amendment has resulted in the average state constitution featuring 120 amendments.94 tribes’ constitutional requirements for amendment resemble ordinary legislation more than either the federal or state constitutional models. many tribes require only a majority of tribal council members to propose an amendment—no different than the consensus required for passage of a tribal council ordinance.95 most states (twenty-seven) impose a supermajority requirement on their state legislatures for amendment proposals.96 this tribal constitutional proximity to ordinary legislation remains consistent with a theory of dependent sovereignty where the superstate’s constitutional or plenary authority over the subconstitution limits the latter’s incentives to protect rights, resulting in lowered amendment requirements.97 both tribal constitutions and state constitutions heavily employ direct participation as a mechanism to initiate and approve constitutional amendments, increasing the ease of amendment not 91 not all tribes impose a minimum participation requirement or one counted by percentage. see, e.g., cherokee const. art. xv, § 2 (amendment valid as long as simple majority met); nez perce tribe const. art ix, § 1 (requiring not less than 100 votes cast out of a tribal population of 2,700). 92 of course, the federal article v amendment process does not involve the direct participation of voters in either the proposal or approval process, leaving either congress or state legislatures to propose an amendment and state legislatures or state conventions to approve them. moreover, article v requires the consent of either 2/3 of both the house and the senate or 2/3 of state legislatures just to propose an amendment; an extraordinary 3/4 of the state bodies must consent to approve one. no other provision in the united states constitution imposes such a high requirement for consent, even though the constitution significantly lowered the consent requirement from the unanimity that the articles of confederation required, ultimately leading to its downfall. see akhil reed amar, america’s constitution: a biography 285–86 (2005). 93 tarr, supra note 82, at 141 n.22. 94 id. at 10, 24. 95 see, e.g., cheyenne-arapaho tribes of okla. const. art. xiii(1)(a) (permitting legislature to amend constitution by “calling a special election by law”); id. art. vi(7)(a)(iii) (“all decisions of the legislature shall be made by a majority vote of the legislators present unless otherwise specified in this constitution”); s. ute indian tribe const. art. xii, § 1 (providing election for constitutional amendment with votes of four of seven tribal council members); grand traverse band of ottawa & chippewa indians const. art. xv, § 2 (requiring election for constitutional amendment upon request of tribal council, with tribal council action requiring only majority vote). 96 neal devins, how state supreme courts take consequences into account: toward a state-centered understanding of state constitutionalism, 62 stan. l. rev. 1629, 1641 (2010). most states imposing a supermajority requirement for legislative amendment proposal follow the u.s. constitution’s 2/3 model (eighteen states), followed by nine states requiring 3/5 approval and four states involving hybrid schemes with both supermajority and majority requirements. on the other hand, most tribal constitutions’ initiative requirement of 20-33% of eligible voters remains substantially higher than most states, where 8-10% is more common. see, e.g., cal. const. art. ii, § 8b (8% initiative requirement); or. const. art. iv, § 21(c) (8% initiative requirement); nev. const. art. xix, § 2, cl. 2 (10% initiative requirement). 97 see ginsburg & posner, supra note 69, at 1608 (predicting that federal government monitoring of states has reduced since incorporation of the bill of rights, leading to an increase in state constitutional amendments enacted by interest groups). of course, indian tribes have not experienced incorporation. empirical studies on the links between laws such as the indian civil rights act of 1968 (guaranteeing most constitutional rights to the tribes, although largely enforced by tribal rather than federal courts) and tribal constitutional reform are necessary. 88 tribal constitutional amendment and reform vol. 4:1 only because of the availability of a second path for amendment outside of action by elected officials but also because of the pressure exerted on the legislative body to initiate change itself.98 the use of direct participation might result from a historical accident: states widely transformed their constitutions during the progressive era, where direct democracy measures and the push for economic, political and social reform through constitutional amendments became commonplace.99 ira constitutions were drafted shortly after this period. consider that three consecutive amendments to the united states constitution at the end of the progressive era all incorporated direct voter election: amendment xvii’s direct senate election amendment (1913),100 prohibition amendment xviii’s requirement of re-ratification within seven years (1919),101 and amendment xix’s extension of suffrage to women (1920).102 tribal constitutions share with state constitutions the broad use of voter initiative and referendum mechanisms. twenty states amended their constitutions between 1898 and 1918 to provide for voter initiatives that propose constitutional amendments.103 even prior to constitutional proposals by initiative, state constitutional amendments were widely approved by referendum since the early nineteenth century, and popular approval became the rule by the 1830’s.104 today, all states except delaware continue this practice.105 like the dominant tribal model, forty-four states require only a simple majority of referendum voters for approval.106 2. administrative approval despite the similarity in the procedures of amendment that would seem to suggest frequent and numerous constitutional amendments, many tribal constitutions face an additional level of approval making them markedly different from state constitutions.107 approval by the secretary of the interior currently serves as a major impediment to tribal self-determination.108 the element of federal administrative approval suggests that, within the american constitutional structure, tribal constitutions experience the most limitations on sovereign constitutional development and reflect deep interdependence with the super-state. 98 walter dodd, the revision and amendment of state constitutions 292 (1910) (“perhaps the greatest value which the initiative will have is not in the direct results which may come from its use, but in its influence in causing legislatures to act upon matters upon which action is desired by the people.”). 99 devins, supra note 96, at 1643. 100 interestingly, the origins of the federal direct senate election amendment were decidedly western, based largely on the state of oregon’s plan to allow voters in the general election to express their preference for the united states senator of their choice and allowing state legislators first to pledge to support the direct result, and later requiring them to do so through a 1908 state initiative. see amar, supra note 92, at 411. 101 see id. at 417–19 (noting amendment xviii, section 3’s definition of “operative” laid the groundwork for a potential future move towards a more directly democratic system of amendment). 102 see id. at 419 (noting this amendment constituted the “single biggest democratic event in american history” in sheer numbers). 103 devins, supra note 96, at 1643. 104 dodd, supra note 98, at 64–65. 105 tarr, supra note 82, at 26. 106 id. at 34. 107 the exception would be federal checks on state constitutions upon statehood and federal constitutional review of state constitutional amendments under the 14th amendment. see eric biber, the price of admission: causes, effects, and patterns of conditions imposed on states entering the union, 46 am. j. legal hist. 119 (2004) (tracking the federal government’s influence on state constitutions as states rejoined the union after the civil war). 108 see, e.g., carole goldberg, members only? designing citizenship requirements for indian nations, 50 kan. l. rev. 437, 448 (2002) (discussing bia refusal to sponsor an election for the proposed constitutional amendment of the lac courte oreilles band of lake superior chippewa indians that would have altered membership requirements from a blood quantum requirement to ancestry). 2013 columbia journal of race and law 89 although the secretary must call a special election for tribal members when the constitutional requirements for proposing an amendment are met,109 he may reject any amendment “contrary to applicable law.”110 the bureau of indian affairs has also reserved the right to reject amendment provisions that are “inappropriate,” including those that do not conform to bureau policies.111 moreover, in the case of conflicting amendment proposals, the secretary must call an election for the proposal “first received by the officer in charge” if it is found “valid.”112 thus, the secretary retains discretion to reject amendments based on an undefined declaration of “validity,” and acts as referee when tribal governance disputes yield conflicting constitutional change. the secretary also retains discretion when tribal procedures do not offer a clear resolution. for example, if the amendment provisions of a tribal constitution become “outdated” such that “amendment cannot be effected pursuant to them,” the secretary “may” nonetheless authorize an election at the request of the tribal government.113 a. case study: secretarial approval and the 2003 cherokee constitution the 1999-2003 cherokee constitutional reform process illustrates the deep subconstitutional status of tribes with a secretarial approval requirement: the requirement served as both a desirable mechanism to enable self-governance and a hindrance to sovereign constitutionalism. the 1975 cherokee nation constitution—the first since the federal government disallowed cherokee selfgovernance in 1907—voluntarily included a provision requiring federal approval for future constitutional changes. the cherokee constitutional drafters believed the approval provision would facilitate the limited sovereignty it possessed by obtaining further government support; constitutional reformers were motivated by the possibility of federal funding,114 and thus they designed substantive provisions, such as a unicameral legislature and internal judiciary, to ensure quick receipt and disbursement of federal funds and to improve the delivery of services to individual tribal members.115 when the cherokee voters approved a new constitution in 1999, the amendment provision ultimately delayed the implementation of the new constitution, and the federal government has not yet recognized the new constitution.116 after the bia expressed disapproval with several provisions of the new constitution and mandated specific changes, the cherokee nation instead submitted a constitutional 109 25 c.f.r. § 81.5(d) (2011) (“the secretary shall authorize the calling of an election on the adoption of amendments to a constitution and bylaws or a charter when requested pursuant to the amendment article of those documents.”). 110 congress, in 1988 amendments to the ira, limited the secretary’s discretion during the approval process by (1) setting a forty-five-day time limit for secretarial authorization for a constitutional referendum or for approval of a ratified amendment and (2) limiting the secretary’s discretion by mandating approval of an amendment unless “contrary to applicable laws.” see fletcher, supra note 55, at 155. however, this provision restores the centrality of federal government action—treaties, executive orders, acts of congress or court decisions—to limit the ability of tribes to amend their constitutions. 111 kirsty gover, tribal constitutionalism: states, tribes, and the governance of membership 119-120 (oxford univ. press 1st ed. 2011). 112 25 c.f.r. § 81.5(g) (2011). 113 25 c.f.r. § 81.5(e) (2011). 114 lemont, supra note 26, at 7 n.14 (“[cherokee leader ross] swimmer said that in eastern oklahoma: a lot of federal help was being given to tribes in the west, but none in oklahoma, because again we didn’t have organized tribes. this was also an impetus, a big impetus, for the adoption of a constitution . . . . i saw this opportunity with the federal money that was coming in that we could use that and turn it into a useful tool that we could do some things in eastern oklahoma.”) 115 id. at 9. 116 id. at 32. 90 tribal constitutional amendment and reform vol. 4:1 amendment to the voters removing the secretarial approval provision of the 1975 constitution, which the voters approved.117 despite continued bia opposition to the measure, in 2006 the cherokee nation supreme court affirmed that voters had validly removed the approval provision and declared the 2003 constitution in full force.118 although an administration change resulted in later secretarial approval of the amendment, a 2011 bia opinion declared that the approval was not “retroactive,” and thus the new constitution was not valid since voter ratification preceded the constitutional amendment.119 presumably, the cherokee could have merely re-submitted the constitution to its voters for reratification. but when the ratification issue became intertwined with federal disagreement about a separate constitutional amendment disenrolling cherokee freedmen, and the u.s. department of housing and urban development suspended $33 million in cherokee nation funds, the cherokee settled outside of the constitutional framework.120 perhaps more than the secretarial approval provision, the nation’s annual receipt of $500 million in federal funding serves to limit the cherokee’s ability to fully amend its constitution as it, for better or worse, sees fit.121 however, like the cherokee, a number of tribes have amended their constitutions to remove bia approval power, which the bia has tended to accept.122 although federal legislation delegating power to the secretary to adopt and approve tribal constitutions provides that tribes may adopt amendments through any other method pursuant to their inherent sovereign authority,123 such constitutions will not be “recognized” by the bia. this raises the possibility of increased bia opposition to tribal government actions, issues arising during the distribution of federal benefits, and the inability to claim federal preemption against state intrusion into tribal governments.124 b. subnational similarities: federal approval of state constitutions secretarial approval of tribal constitutions is similar to the requirement of initial congressional approval of state constitutions, reflecting a broader characteristic of subnational constitutionalism. as such, infringement on tribal sovereignty to rewrite their constitutions reflects not just the continuation of a tribe’s domestic dependent status, but rather a practice shared by constitutional governments operating within federal schemes, including states, territories, and tribes. for example, prior to state admission, congress and the president review constitutional provisions and can refuse to admit the state until desired constitutional changes are made.125 awareness of this requirement tends to deter states from drafting constitutional provisions likely to upset federal power.126 unlike tribes, federal restrictions are 117 id. at 31. 118 in re status and implementation of the 1999 constitution of the cherokee nation, judicial appeals tribunal of the cherokee nation (june 7, 2006), available at http://www.cornsilks.com/99con.pdf. 119 bureau of indian affairs, letter from larry echo hawk, assistant secretary—indian affairs (september 9, 2011), available at http://www.cherokee.org/portals/0/documents/2011/9/32697cherokee_9_9_11_(3).pdf. 120 steve olafson, cherokee tribe retreats from effort to oust some members, reuters (sept. 15, 2011, 2:26 pm), http://www.reuters.com/article/2011/09/15/us-usa-cherokees-idustre78e5ix20110915. 121.cherokee nation chief mindful of funding in freedmen dispute, indianz.com (nov. 8, 2011), http://www.indianz.com/news/2011/003661.asp (quoting the cherokee nation chief’s resolve to defend the $500 million in federal funding received annually by the nation that had been threatened by the obama administration during the freedmen dispute). 122 frank pommersheim, braid of feathers: american indian law and contemporary tribal life 65 (1995). 123 25 u.s.c. § 476(a) (2011). 124 resnik, supra note 5, at 713 n.189. 125 tarr, supra note 82, at 40. 126 id. 2013 columbia journal of race and law 91 removed upon statehood, and states have historically incorporated previously offending provisions after receiving such status.127 more dramatic federal restrictions on subnational constitution reform have occurred during extraordinary historical moments; for example, during reconstruction, one commentator (correctly) predicted that newly adopted southern state constitutions would “last just as long as the bayonets which ushered them into being, shall keep them in existence, and not one day longer.”128 at times, federal restrictions on tribes have gone further, abolishing tribal self-governance altogether.129 currently, however, tribal authority to remove the bia approval provisions—even if informal pressures accompanying federal supervision counsel against doing so—renders tribal constitutions more sovereign than their subnational counterparts in south africa, where provincial constitutions cannot take effect until judicial review for compliance with thirty-four principles enunciated in the federal constitution.130 in short, both the ease of and restrictions on tribal constitutional amendment situate tribes within a unique subnational status, characteristics that have historically shifted along with a tribe’s sovereign powers. b. reform beyond the relatively easy amendment procedures and secretarial approval requirement, tribes seeking constitutional change face the limiting nature of an outdated original framework. whether an existing ira-era constitution is considered imposed by outsiders or unfit for the times, tribes have often foregone amendments to existing constitutions in favor of wholesale reform. amendments are typically appropriate for correcting “specific problems” in documents, but are unlikely to consider questions of broader constitutional design.131 moreover, because the specific nature of amendments compounds the specific nature of tribal constitutions, frequent amendment creates “a language and provision multiplier effect.”132 for example, prior to constitutional reform on the turtle mountain reservation, tribal members viewed the frequency of constitutional amendment as reflecting a valuable commitment to constitutionalism but leaving a “patchwork quilt” indicating that constitutional reform, not merely amendment, was necessary.133 of course, the federal constitution’s patchwork nature has not necessarily been viewed as problematic. for example, akhil reed amar has discussed the benefits of the document’s reflection of national historical developments over more than two hundred years.134 moreover, states used to engage in frequent wholesale constitutional reform, but recently amendments have become a more commonplace method for state reformers, leaving tribes as the units most frequently engaged in subnational constitutional reform in the united states.135 127 id. at 41. 128 id. at 131. 129 see supra note 28. 130 see supra text accompanying note 16. 131 tarr, supra note 71, at 6. 132 cain & noll, supra note 75, at 1520 (discussing in state constitution context). 133 see richotte, supra note 27 (noting members’ view on the tribe’s nine different amendments since 1959). 134 amar, supra note 92, at 458–63 (noting the chronological order of amendment text “has happily encouraged the constitution’s readers to attend to the document’s history and trend line . . . . [without chronological ordering], this strong vector [towards increasing democracy] would have been less visible.”). 135 devins, supra note 96, at 1640–41 (“[t]he principal mechanism by which states now update their constitutions is the amendment process . . . .”). 92 tribal constitutional amendment and reform vol. 4:1 tribes often do not know the path to constitutional change prior to the start of the reform process. when the cherokee nation began constitutional reform in 1999, neither the authorizing tribal council nor the independent cherokee nation constitution commission had imagined the end product. some reformers envisioned a series of amendments to the existing 1975 constitution, as the idea of wholesale reform sparked significant opposition.136 however, following a series of twenty public hearings, reformers recognized that the breadth and quantity of desired change could not be achieved in a series of amendments. the nation’s general counsel worried that a new constitution would create a “big target” for those opposed to reform, and a cherokee supreme court justice expressed concern about the loss of precedential value from case law based on the old constitution.137 nonetheless, the commission chose to draft a new constitution using public comments from the hearings as a starting point.138 1. understanding the challenges of reform: the cherokee constitutional convention and reform process of 1999-2003 the cherokee constitutional convention and reform process of 1999-2003 provides a useful opportunity for understanding the processes and challenges of wholesale constitutional reform among american indian tribes, both because it has been extensively documented139 and because it reflects the limitations under which tribal constitution reform can take place. as discussed above, despite the cherokee members’ ratification of the new constitution in 2003, the federal government has yet to recognize it and insists the cherokee are operating under the previous 1975 constitution.140 as such, the reform process highlights tribal constitutions’ interdependent status with the federal system, even as tribes discard ira-era constitutions due to the taint of federal authorship and control.141 tribal constitutional reform tends to operate outside of any pre-existing framework. although most tribal constitutions contain provisions for amendment similar to the bia model, few contain detailed provisions for wholesale constitutional reform.142 some discuss the procedure for calling a constitutional convention, although procedures for selecting delegates, operating the convention, or ratifying the resulting document are rarely defined.143 nonetheless, common issues facing tribal reformers have been identified, including the role of existing tribal government officials in the reform process, the scale of reform, and the tendency for contentious issues—especially blood quantum and membership requirements—to derail reform projects. 136 lemont, supra note 26, at 29. 137 id. 138 id. at 16. 139 archives from the cherokee nation constitutional commission are available at, http://www.cherokee.org /ourgovernment/commissions/constitutionconvention.aspx. 140 see bureau of indian affairs, supra note 119. 141 devins, supra note 96, at 1640–41 (noting that only georgia has adopted a new constitution in last 30 years and that two-thirds of states have constitutions that are more than 100 years old); cain & noll, supra note 75, at 1520 (noting the continued high pace of state constitutional amendments compared to the decline of state constitutional conventions and new constitutions). 142 champagne, supra note 19, at 30–31; steven haberfeld, the process of constitutional reform, in american indian constitutional reform and the rebuilding of native nations 252, 253 (eric d. lemont ed., 2006). 143 see, e.g., rosebud sioux tribe const. art. ix, § 2 (providing that petition signed by 30% of voters in the last election results in the tribal constitution convention to consider amendments, conducted by a seven-person tribal constitutional task force consisting of tribal members outside the tribal council); cherokee nation const. art. xv, § 9 (empowering tribal members to call a constitutional convention by referendum and prohibiting the tribal council from calling a convention; requiring majority approval for any resulting constitutional changes; and requiring submission of questions of constitutional convention to voters once every twenty years). 2013 columbia journal of race and law 93 despite their subnational status, tribal constitutions’ stance on these founding decisions affects both the scope and authority of the tribe itself, confronting issues central to constitutional meaning. first, defining the respective authority of existing tribal government officials and tribal members ensures endorsement, deters obstructionism from existing officials, and encourages genuine buy-in from the people.144 the cherokee reform process seemingly managed to accomplish these feats despite a major intra-branch dispute, the tribal council approving a constitutional convention whose suggestions would be mandatory rather than advisory, and a constitutional commission that remained independent from the existing government by receiving guarantees of equal representation for each of the three branches of government.145 the independent constitutional commission agreed to take an oath of political neutrality, pledged not to hold public office, and agreed to act only with unanimity.146 at the same time, the cherokee held a wide-ranging series of around twenty public hearings for all members who wished to voice concerns that should be embodied in constitutional reform.147 following the hearings, the commission held a nine day constitutional convention with seventy-nine delegates, including existing government officials and many tribal members chosen solely on the basis of their participation in the public hearings.148 other tribes have had constitutional reform processes derailed entirely because of association with the existing tribal government. a 2002 reform effort among the turtle mountain tribe ultimately was rejected by its members because the referendum occurred at a time of growing distrust of the tribal council and became equated with a vote against the tribal council chairman rather than a vote on the constitution.149 the failure of other tribal reform efforts attributable to dominance by existing officials include the oglala sioux tribe and the wampanoag tribe of gay head/aquinnah, where frequent constitutional changes occurred based on the short-term interests of the community as determined by the tribal council.150 second, tribal constitutional reform can become delayed or derailed when determining necessary preconditions to reform, such as defining eligible reform participants. the cherokee nation successfully handled this issue with respect to off-reservation cherokees through a series of off-reservation public hearings and invitations to off-reservation convention delegates. these actions eventually culminated in a constitutional provision allotting two at-large seats in the tribal council for representation of offreservation members and enhanced the legitimacy of the resulting constitution among a substantial portion of the cherokee population.151 however, they were less successful in the context of cherokee freedmen. prior to bia approval of the new cherokee constitution, the tribal council passed a referendum excluding freedmen from tribal membership, which contributed to the federal government’s 144 haberfeld, supra note 142, at 257–62 (suggesting tribal constitutional reform has generally proceeded along two models: the most common “technical” route where attorneys or other experts draft a proposed constitution and then submit to the people for feedback, and a “political” route where public discussions and solutions informs the initial drafting of a new constitution). 145 lemont, supra note 26, at 11–14. 146 id. at 13. 147 id. at 15. 148 id. at 16–17. 149 see richotte, supra note 27. 150 theresa two bulls, firsthand accounts: maximizing citizen participation and ownership in reform processes, in american indian constitutional reform and the rebuilding of native nations 281, 282 (eric d. lemont ed., 2006); beverly wright, firsthand accounts: maximizing citizen participation and ownership in reform processes, in american indian constitutional reform and the rebuilding of native nations 272, 274 (eric d. lemont ed., 2006). 151 lemont, supra note 26, at 24–25. 94 tribal constitutional amendment and reform vol. 4:1 failure to recognize the new constitution. other tribes’ reform processes can highlight existing grievances among the community when constitutionalizing existing practices for the first time.152 the crises facing tribal governments today reflect a shifting moment in their sovereign status, a moment that has been viewed as an opportunity for significant constitutional reform. within and responsive to the constraints of their subconstitutional status, tribes are freed to undertake the “higher lawmaking” of public deliberation conducive to constitution building.153 the cherokee reform process illustrates this, as the convention occurred against the backdrop of dueling governments with two courts, two police forces, a tribal council that had stopped conducting business for more than a year, and an fbi investigation into the principal chief.154 like the threat of an ineffective decentralized confederation or state secession, tribes facing governance crises are best positioned to craft new founding documents that last for generations, or, more likely, reflect this particular moment in tribal self-government. iv. conclusion: reform every twenty years this essay has proposed that indian tribal constitutions should be understood in their subnational context. the establishment of tribal governance systems under the federal government and alongside state governments affects multiple aspects of tribal constitutions’ writing and rewriting, such as the relative ease of amendment tempered by a federal approval requirement. it also helps to illuminate the continuing role federal oversight plays to structure tribal constitutions despite being well past the ira era’s boilerplate pressures. the cherokee reform process demonstrates that, even in a time of wholesale constitutional reform empowered by expanding tribal economic and governmental selfdetermination, federal authority—through both the stick of secretarial approval and the carrot of funding—continues to shape tribal constitutional decisions.155 152 see kelly koepke, new residency requirement targets non-members, angers pueblo of isleta, indian country today media network (apr. 9, 2012), http://indiancountrytodaymedianetwork.com/2012/04/09/new-residencyrequirement-targets-nonmembers-angers-pueblo-of-isleta-107140 (noting the provision requiring criminal background check for nonmembers to live on reservations might be unusual in terms of its written nature, but the practice is not: “lots of tribes are asking people to leave, especially when people bring in boys and girls dealing with drugs . . . most tribes don’t have these kind of ordinances written into laws, though—they are more traditional tribes without constitutions.” (internal quotations omitted)). 153 see generally ackerman, supra note 73 (chronicling the development of the united states constitution and federal structure). 154 lemont, supra note 26, at 2. 155 any loss of federal funding threatens essential services provided by federally recognized indian tribes, as experienced by tribes during the fiscal year 2013 sequestration and the october 2013 government shutdown. see, e.g., nat’l cong. of am. indians, tribes urge congress to honor treaty promises and stop sequestration (2013), available at http://www.ncai.org/policy-issues/tribal-governance/budget-and-approprations/2013.09.18_treaty_ promises,_updated_sequestration_paper_revised_copy.pdf (describing sequestration cutbacks of more than $500 million to federal programs in indian country, including impacts to education, essential government services, public safety and health care); dan frosch, pulling aid away, shutdown deepens indians’ distress, n.y. times (oct. 13, 2013), http://www.nytimes.com/2013/10/14/us/pulling-aid-away-shutdown-deepens-indians-distress.html?_r=0 (describing effects of government shutdown on indian tribes, including furloughs, the lack of bus service and home health services for sick tribal members, and the halting of funding to tribal governments). funding through the bureau of indian affairs supports 183 schools and dormitories, thirty-three tribal colleges and “social services, natural resources management, economic development, law enforcement and detention services, administration of tribal courts, implementation of land and water claim settlements, replacement and repair of schools, repair and maintenance of roads and bridges, repair of structural deficiencies on high hazard dams, and land consolidation activities.” u.s. dep’t of the interior, indian affairs, budget justifications and performance information: fiscal year 2014 ia-gs-2, available at http://www.bia.gov/cs/groups/xocfo/documents/text/idc1-021730.pdf. the total allocation to services through indian affairs in fy2012 was $2.75 billion dollars. id. at ia-ovw-1. 2013 columbia journal of race and law 95 however, this essay has also proposed that constitutional borrowing and influences between tribes and other entities are not unidirectional. both the cherokee nation constitution and the state of oklahoma’s constitution include a provision requiring voters to consider whether to call a constitutional convention at least once every twenty years: no convention shall be called by the council to propose a new constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular or special election. any amendments, alterations, revisions or new constitution, proposed by such convention, shall be submitted to the registered voters of the cherokee nation at a general or special election and be approved by a majority of the registered voters voting thereon before the same shall become effective. the question of such proposed convention shall be submitted to the citizens of the cherokee nation at least once every twenty (20) years.156 aligned with jefferson’s warning about the inappropriateness of long-term constitutional documents that bind future generations, the provision requires members to consider the desirability of major constitutional reform at least once every twenty years, although it does not specify exactly when. while this could be a simple case of the tribe borrowing from the state, the example is more complicated. the oklahoma state constitutional delegation included representatives from oklahoma’s “five civilized tribes,” including the principal chief of the cherokee. shortly before the oklahoma convention, these delegates had participated in the sequoyah constitutional convention as part of the indian territory’s attempts to gain its own statehood.157 the convention produced a constitution overwhelmingly ratified by territory voters, but congress expressed little enthusiasm for an indian state and instead supported joint statehood through oklahoma. as a result, various principles and structures embodied in the sequoyah constitution found their way into the oklahoma constitution.158 as the twenty year provision suggests, although tribes rewrite their constitutions under a subnational backdrop, they also actively participate in a dialogue that not only resolves internal tribal questions—arranging those limited sets of powers congress and the supreme court have found “appropriate” for tribes to retain—but also engages with other subnational entities (i.e. states) and the federal system itself. tribal constitution rewriting remains an inevitably subordinated enterprise, with or without the pressures of ira boilerplate and field agents, but also an enterprise that possesses the opportunity to shift the landscape of the american constitutional structure itself. 156 cherokee nation const. art xv, § 9; see also okla. const. art. xxiv, § 2. besides oklahoma, 13 other states require the legislature to periodically submit the calling of a convention to the people. tarr, supra note 82, at 25. the practice originated with new hampshire’s 1784 constitution. dodd, supra note 98, at 50. 157 see amos d. maxwell, the sequoyah constitutional convention (1953). 158 david e. wilkins, constitution of the state of sequoyah, in documents of native american political development: 1500s to 1933 299, 299 (2009). 96 tribal constitutional amendment and reform vol. 4:1 2015 columbia journal of race and law 79 a critique of the motivations behind negative action against asian americans in u.s. universities: the model victims shawn ho* to deal effectively with negative action against asian americans, it is crucial to first understand the motivations behind negative action. this article posits that these motivations are complex—they are an intricate tapestry of racism and benevolence interwoven with both conscious and unintentional aspects. in theorizing about and critiquing these motivations by unpacking a 4-quadrant matrix, it seeks a deeper understanding of how to deal with negative action against the “model victims.” this article further suggests that the tensions arising from negative action flow from the supreme court’s adoption of a pure diversity rationale for affirmative action; it is necessary to have a more nuanced conception of college diversity that remains true to the spirit of remediation for america’s legacy of racial injustice while simultaneously seeking to dismantle stereotypes and racism. finally, it discusses the possible ways for asian americans to deal with negative action going forward. only by seriously grappling with its own history and the cultural scripts that disadvantage asian americans—and all groups of color—can america hope to effectuate its ideals of true meritocracy. i. introduction............................................................................................... 80 ii. defining negative action against asian americans..................81 iii. myriad ways that negative action is perpetuated against asian americans...................................................................................................... 82 iv. theorizing and critiquing the motivations behind negative action against asian americans.............................................................. 87 a. conscious racism: thinking that asian americans are unfair competitors........................................................................................ 88 b. unintentional racism: believing the corollaries of the model minority stereotype............................................................................90 1. asian americans are only good at s.t.e.m. (science, technology, engineering and mathematics).......................91 2. asian americans are not well-rounded students.............. 92 3. asian americans are below whites in the united states’ racial hierarchy................................................................................ 93 80 a critique of the motivations behind negative action in u.s. universities vol. 5.2 c. conscious benevolence: thinking that negative action leads to diversity.............................................................................................. 94 d. unintentional benevolence: believing that negative action reduces racial tension and resentment against asian americans..............95 v. possible ways forward for asian americans to deal with negative action............................................................................................................ 96 vi. conclusion................................................................................................... 98 i. introduction the asian american student was, by all traditional metrics, a consummate success: perfect scores on three college admissions tests, top of the class at a competitive high school, captain of the tennis team, and a volunteer for national public radio.1 despite these accomplishments, harvard university rejected the student’s application to join the 2014 entering class.2 the students for fair admissions (sfa) filed a federal suit in massachusetts in november 2014. the sfa, a texas-based non-profit organization, alleged that harvard employs impermissibly “racially and ethnically discriminatory policies” when evaluating undergraduate students, which penalize asian american applicants solely on the basis of race.3 was the student denied admission to a highly selective u.s. university because he is asian american,4 that is, because of “negative action”? what are the motivations behind negative action against asian americans? many writers have written about how the asian american model minority stereotype has been used to argue against affirmative action.5 however, a conspicuous omission in the literature is the impact of the stereotype’s corollaries on negative action. negative action is immensely important as it affects the next generation of asian american leaders, with adverse ripple effects on the numbers of asian americans in graduate schools, academia, and the professional fields. ultimately, negative action stymies asian americans’ aspirations to join america’s inner circle of political, economic, and social leaders, limits that leadership circle’s exposure to bright minds with fresh ideas, and breeds cynicism among asian students and parents who emigrated here in search of opportunity.6 to deal effectively with negative action against asian americans, it is crucial to first understand the motivations behind negative action. * legal service officer, singapore; ll.m., columbia university school of law; ll.m., cambridge university; ll.b. with honors, national university of singapore. all views expressed in this article remain the author’s own views, and do not represent the views of his organization. 1 harvard under fire, the economist, nov. 29, 2014, http://www.economist.com/news/united-states/21635027-doesuniversity-impose-silent-quotas-against-asian-americans-harvard-under-fire. 2 complaint at 8, students for fair admissions v. president and fellows of harvard college, no. 14 civ. 14176 (d. mass. nov. 17, 2014). 3 id. 4 by “asian american”, i refer to persons of asian descent who live in the u.s., regardless of citizenship status. the term “asian american” can serve as a unifying identity based on the common experiences of asian americans because of the inability of most non-asian americans to distinguish between different asian groups. robert s. chang, toward an asian american legal scholarship: critical race theory, post-structuralism, and narrative space, 81 calif. l. rev. 1243, 1246 n.7 (1993). 5 among the most prominent is mari j. matsuda, we will not be used: are asian-americans the racial bourgeoisie?, in where is your body?, 149-59, 150 (1997). frank h. wu has criticized the use of the model minority stereotype (for political purposes) as a means of attacking affirmative action for other racial minority groups. see frank h. wu, neither black nor white: asian americans and affirmative action, 15 b.c. third world l.j. 225, 227 (1995). 6 daniel golden, the new jews: asian americans need not apply, in the price of admission: how america’s ruling class buys its way into elite colleges — and who gets left outside the gates 196, 200-01 (2007). 2015 columbia journal of race and law 81 what are the motivations behind negative action? this article argues that the motivations behind negative action against asian americans are not simply outright prejudice against those of asian origin; rather, they are an intricate tapestry of racism7 and benevolence, with both conscious and unintentional aspects. this article further suggests that the tensions arising from negative action flow from the supreme court’s adoption of a pure diversity rationale for affirmative action, calling for an increased attention to the remediation rationale. negative action is undoubtedly motivated partly by the conscious idea that defensive measures are required to curb unfair competition by asian american students. racism in negative action may often stem from unintentional and often unconscious acceptance of the corollaries of the model minority stereotype:8 that asian americans are only good at s.t.e.m. (science, technology, engineering, and mathematics) fields, are not well-rounded, and ultimately below whites in the american racial hierarchy. but such racism alone does not present a complete picture. this article also examines the purportedly benevolent aspects of negative action, in which admissions officers either consciously or subconsciously believe that negative action will eventually benefit asian americans by promoting racial diversity and reducing racial tension and resentment against asian americans. this essay aims to critique the motivations behind negative action against asian americans, and in so doing, get a deeper understanding of how to deal with its consequences. in part ii, this article will define negative action against asian americans. in part iii, it will move on to examine the myriad ways that negative action is perpetuated against asian americans. in part iv, this article will theorize about and critique the motivations behind negative action against asian americans and endeavor to unpack a four-quadrant matrix involving racism and benevolence that is both conscious and unintentional. finally, part v will conclude by discussing the possible ways for asian americans to deal with negative action going forward. ii. defining negative action against asian americans jerry kang, law professor and associate provost at the university of california los angeles (ucla) school of law and the korea times-hankook ilbo endowed chair in korean american studies, defines negative action as: “unfavorable treatment based on race, using the treatment of whites as a basis for comparison. in functional terms, negative action against asian americans is in force if a university denies admission to an asian american who would have been admitted had that person been white.”9 negative action has been described as a “minus factor” applied to asian american candidates relative to white candidates, a practice that is separate and apart from any affirmative action “plus factor” given to other minority 7 frank h. wu, the symbolic black and white: the new challenges of a diverse democracy (2010) (unpublished manuscript) (on file with author) (“so what i’d like to suggest is that we must understand that much of the struggle that we face . . . has to do with the legacy, the shared burden of history that we together bear, it has to do with institutions and structures. it has to do with those cases that we might well balk at calling ‘racism,’ yet where it is apparent that a pattern emerges that correlates to race: we lack the appropriate vocabulary to describe this protean phenomenon. and so the label is less important than the effects. many would resist the term ‘racism,’ even if they could be persuaded of the influence of race. they can be won over with effective advocacy”) (emphasis added). 8 jerry kang described the operation of racial stereotypes in our interactions with others as “racial mechanics …we map each other into racial categories that trigger associated racial meanings.” darren seiji teshima, a ‘hardy handshake sort of guy’: the model minority and implicit bias about asian americans in chin v. runnels, 11 asian pac. am. l.j. 122, 131. 9 jerry kang, negative action against asian americans: the internal instability of dworkin’s defense of affirmative action, 31 harv. c.r.-c.l. l. rev. 1, 3 (1996) (emphasis added). http://www.westlaw.com/find/default.wl?rs=dfa1.0&vr=2.0&db=profiler-wld&docname=0374740301&findtype=h 82 a critique of the motivations behind negative action in u.s. universities vol. 5.2 applicants.10 adrian liu has argued that while affirmative action reduces race discrimination in admissions by enlarging the notion of merit in a way that benefits all groups, negative action disadvantages asian americans on the basis of race and maintains the discriminatory effects of traditional admissions policies.11 negative action has also been likened to the treatment of jewish people. in the early 20th century, jewish applicants to universities and jobs faced similar responses to those which face many asian americans today; mainstream american society viewed jewish people as a competitive threat and inherently disloyal to america, leading many universities to establish higher admissions standards for jewish applicants than for their non-jewish white counterparts. in fact, in the early 20th century, some ivy league institutions placed strict caps on the number of jewish students they would accept.12 in today’s negative action landscape, such caps are no longer used. jerry kang notes, however, that negative action can be implemented either by a “hard” system of inflexible quotas or by a “soft” unquantified, gestalt admissions calculation.13 the substantial discretion afforded to college admissions officers, coupled with the relative secrecy of the admissions process, allows for such “soft” calculations to play important but unknown roles in asian american students’ chances of success. the next part of this article will document some of the more common ways in which asian americans are and have been disadvantaged, whether consciously or not, in the college admissions process. it is worth noting that the forms of negative action this article deals with are undoubtedly not exclusively used to disadvantage asian american applicants. negative action also applies to disadvantage other racial minorities, such as african americans and latinos. this paper focuses on the impact of negative action on asian americans, due to several unique aspects of the asian experience in america. though the population of people of asian origin is growing faster than any other racial group in america, asian americans represent roughly five percent of the u.s. population.14 consequently, it is more difficult for asian americans to organize politically to address these issues, and asian organizing efforts and campaigns to build political leverage and power are particularly difficult. organizing efforts are further hampered by the linguistic, cultural, and phenotypic diversity encompassed by the term “asian american.” these differences mean that the experiences of asian american differ vastly; the south asian american experience in the wake of the terrorist attacks of september 11th, 2001, for example, has differed greatly from the experiences of other asian americans. iii. myriad ways that negative action is perpetuated against asian americans there are several indicators that negative action is being employed—both explicitly and implicitly— against asian americans in university admissions. as a purely empirical matter, asian american students often 10 william c. kidder, negative action versus affirmative action: asian pacific americans are still caught in the crossfire, 11 mich. j. race & l. 606 (2006). this article thus does not seek to criticize the use of affirmative action to broaden conceptions of merit and remedy institutional racism as a result of overt discriminatory policies of the past; rather, it will seek to lay out the problems of the current framework under which many universities operate, resulting in widespread problems of negative action. 11 adrian liu, affirmative action & negative action: how jian li’s case can benefit asian americans, 13 mich. j. race & l. 391, 397 (2008). 12 see kidder, supra note 11 (noting the harmful effects of unsupported claims regarding asian americans influencing public discourse). see also scott jaschik, new arguments on affirmative action, inside higher ed (june 21, 2006), http://www.insidehighered.com/news/2006/06/21/affirm. ultimately, it is the “iron law” of university admissions at work: “an institution will retain a particular process of selection only so long as it produces outcomes that correspond to perceived organizational interests (of the dominant white majority).” ling-chi wang, meritocracy and diversity in higher education: discrimination against asian americans in the post-bakke era, 20 the urb. rev. 189, 191 (1988). 13 kidder, supra note 8. other commentators have noted that negative action exists in many forms it can involve outright discrimination against asian americans, admission limits on asian americans in the name of maintaining diversity, or existing bias in admissions policies that disadvantage asian americans relative to whites. see liu, supra note 12, at 414. 14 anna brown, u.s. hispanic and asian populations growing, but for different reasons, pew research ctr. (june 26, 2014), http://www.pewresearch.org/fact-tank/2014/06/26/u-s-hispanic-and-asian-populations-growing-but-for-differentreasons/. 2015 columbia journal of race and law 83 need to perform better on standardized exams to receive the same benefit as their white counterparts. a 2009 study by espenshade and radford established that, controlling for other factors of students’ backgrounds, a student who self-identifies as asian would need to score on average 140 points higher on the standardized admissions test (“sat”) than a white student, 320 points higher than a latino student, and 450 points higher than a black or african american student to gain admission to the same undergraduate institution.15 thus, whether in the form of “hard” or “soft” negative action, the data strongly suggests that at least some asian americans are being denied admissions into universities to which their similarly qualified white colleagues are admitted. some upper level administrators at prestigious u.s. universities have explicitly admitted to taking negative action against asian americans.16 the chancellor of the university of california, berkeley (“uc berkeley”), for example, stated that “it is clear that decisions made in the admissions process indisputably had a disproportionate impact on asians.” california congressman rohrabacher took a more conservative tone in remarking, “that's academic gobbledygook for: ‘we discriminated.’”17 after such contentious debates about the role of race in admissions decisions, california banned all state governmental institutions from considering race and ethnicity in areas of public employment, public contracting, and public education in 1996, forcing all state schools to adopt completely race-blind admissions policies.18 as a result, over the past 20 years, the percentage of students of asian descent accepted into uc berkeley has increased sharply from 25% in 1989 to about 45% in 2012.19 certain private schools in california began to follow this pattern as well, with similar results; california institute of technology, a private university that has adopted a similar race-blind admissions policy, displayed a similar trend: the percentage of its students of asian descent increased from 25% in 1992 to about 43% in 2013.20 importantly, such race-blind measures are not without problems. proposition 209 has been repeatedly challenged by pro-affirmative-action groups; data suggests that the adoption of race-blind admissions policies has had the effect of dramatically reducing the number of black and latino students admitted to university of california schools. at uc berkeley, for example, the admissions rate for black students fell from 49% in 1997 to just 24% in 1998—the first year of students admitted after the new policies went into effect.21 despite these changes in california schools, most highly selective universities have continued to use race in their admissions decisions, enacting and maintaining an array of policies that negatively affect asian americans.22 indeed, asian american student populations are relatively low at most highly selective universities: 15.5% of yale’s 2013 entering class is asian american, compared with 16.1% of dartmouth’s, 17.6% of princeton’s, and 19.1% of harvard’s.23 such numbers are artificially controlled, both in the past and now, through a variety of policies where negative action is brought to bear against asian americans. 15 thomas j. espenshade and alexandria walton radford, no longer separate, not yet equal: race and class in elite college admission and campus life (2009). 16 see kang, supra note 10, at 19 (noting examples of universities admitting to some forms of negative action). 17 harold johnson, model victims, nat’l rev., july 20, 1992, at w7, available online at http://findarticles.com/p/articles/mi_m1282/is_n14_v44/ai_12504486/. 18 cal. const. art. i, § 31 19 rohin dhar, do elite colleges discriminate against asians?, priceonomics (apr. 24, 2013), http://blog.priceonomics.com/post/48794283011/do-elite-colleges-discriminate-against-asians 20 stephen hsu, 20 years @15 percent, does harvard discriminate against asian-americans?, spartan ideas, mich. state u. (nov. 18, 2014), http://spartanideas.msu.edu/2014/11/18/20-years-15-percent-does-harvard-discriminate-against-asianamericans/ 21 michael dobbs, universities record drop in black admissions, washington post, nov. 22, 2004, at a01, available online at http://www.washingtonpost.com/wp-dyn/articles/a2830-2004nov21.html. 22 pat k. chew, asian americans: the ‘reticent’ minority and their paradoxes, 36 wm. & mary l. rev. 1, 63 (1994). 23 kara miller, do colleges redline asian-americans?, the boston globe (february 8, 2010), http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2010/02/08/do_colleges_redline_asian_americ ans/. http://findarticles.com/p/articles/mi_m1282/is_n14_v44/ai http://www.westlaw.com/find/default.wl?rs=dfa1.0&vr=2.0&db=2984&findtype=y&referencepositiontype=s&serialnum=0104890446&referenceposition=32 84 a critique of the motivations behind negative action in u.s. universities vol. 5.2 until quite recently in the history of asians in america, many universities used strict quota systems to cap the number of asian american admissions. for example, asian american students used to be denied admission to brown university regardless of their credentials once their number reached a historically determined upper quota.24 a brown study revealed that each fall, the admissions office established a set of enrollment goals based on the structure of the previous year’s freshman class.25 the number of admitted students was monitored throughout brown’s admissions season to ensure that the relative proportions of athletes, minorities, and alumni children, remained fairly constant from year to year.26 as would be expected, this admissions process perpetuated the university’s existing racial composition and failed to account for demographic changes within american society at large. as asian immigration began to increase following the passage of the immigration and nationality act of 1965—which ended the ban on immigration from all asian countries which had been in place for decades—asians came to represent the fastest growing group of applicants for university admission. brown’s continued use of historically determined upper quotas, however, did not adjust the number of students of asian origin admitted accordingly, keeping the number of asian students disproportionately low.27 brown later conceded that such a quota was unfair towards asian american applicants.28 and in the late 1970s, the supreme court ruled that strict racial quotas are not permitted.29 current forms of negative action are often more subtle and less overtly racialized. a common form of such subtle negative action is the practice of comparing asian american students only to each other during the admissions process. such a mechanism keeps some level of racial quota in place by implying that universities should only accept the most qualified candidates from each racial group.30 universities further disadvantage students of asian origin and artificially deflate their numbers by instituting a minimum verbal sat score.31 though the sat has been refined and changed over the years—for example, by splitting the verbal component into critical reading and writing sections—the verbal competencies tested by the sat continue to be a mainstay of the exam. asian americans previously argued that uc berkeley instituted a minimum 400 sat verbal score to limit asian american admission rates.32 the chancellor repeatedly denied the existence of a minimum verbal score.33 in the history of uc berkeley, the chancellor went on, such a criterion had never before been used to reject qualified applicants in the competitive admissions pool.34 in all published announcements, catalogs, and application forms, the policy had always been to use only the combined sat verbal and math scores, the combined scores of three achievement tests, and gpa, for competitive admissions decisions.35 in the end, under pressure from the asian community, uc berkeley’s assistant vice chancellor admitted that, “at one point (in 1984) a minimum 400 verbal sat score was set, but shortly after the written directive was issued, it was withdrawn.”36 while on its face, such a policy might seem to serve a school’s interest in ensuring english language competency of its student body, the disparate impact such a policy had on asian 24 u.s. comm’n. on civil rights, civil rights issues facing asian americans in the 1990s 13, 112. see also chew, supra note 17, at 63. 25 grace w. tsuang, assuring equal access of asian americans to highly selective universities, 98 yale l. j. 659, 669 (1989). things do not appear to have changed in the 21st century; for example, the summary of the best practices from a diversity manual reminds admissions officers to be “aware of demographic statistics from previous years.” summary of best practices from preserving diversity in higher education: a manual on admissions policies and procedures after the university of michigan decisions, bingham mccutchen llp, morrison & foerster llp, and heller ehrman white & mcauliffe llp 1, 37 (2004). 26 id. at 669. 27 id. at 669. 28 u.s. comm’n. on civil rights, supra note 25, at 112. 29 board of regents of the university of california v. bakke, 438 u.s. 265 (1978). 30 liu, supra note 12 at 421-22. 31 gabriel j chin et. al., beyond self interest: asian pacific americans toward a community of justice: a policy analysis of affirmative action, 4 asian pac. am. l.j. 129, 139 (1996). 32 tsuang, supra note 26, at 674. 33 id. 34 wang, supra note 13, at 197. 35 id. 36 id. 2015 columbia journal of race and law 85 students was troubling. nationally, students scored an average of 426 points on the verbal section of the sat. the university knew that asians, on average, scored 28 points below the national average on the verbal section of the sat, placing the average asian verbal score at 398—just two points below the “neutral” cutoff selected by uc berkeley.37 such circumstances, combined with the history of asian exclusion and the relative secrecy of the policy, give rise to a strong inference that the intent behind the secret decision was to disqualify some uc berkeley-eligible asian american applicants from competition with white applicants.38 similar forms of language discrimination that disproportionately impact asian applicants include the practice of giving additional points to those applicants who were exempt from remedial english, and to those who had four years of a foreign (european) language.39 although these criteria appear to be neutral, they have a disparate impact against applicants of immigrant and refugee backgrounds, many of whom are asian american.40 some universities have taken the opposite approach to asian exclusion by increasing minimum gpa requirements for an automatic admission but not altering the minimum test score for automatic admission. since asian americans were historically more likely to be admitted automatically on the basis of gpa, this change effectively reduced their numbers.41 another area in which admissions officers for public universities can bring to bear negative action against asian american applicants is in the practice of redirection. the university of california system, for example, maintains uc berkeley as its flagship university by redirecting certain applicants to other, less prestigious, schools within the state system.42 given the substantial discretion afforded to admissions officers in this redirection, asian americans are redirected at much higher rates than any other group.43 indeed, uc berkeley has a policy of redirecting applicants of poor and disadvantaged backgrounds “who are not blacks, hispanic or native americans” to other universities.44 previously, uc berkeley-eligible and non-competitive applicants who were poor and disadvantaged (regardless of race) were not redirected to other campuses. subsequent investigations revealed that this decision—which represented a major policy shift from a socioeconomic to a race-based admission program—was made without the participation and approval of the academic senate committee on admissions and enrollment.45 since there has always been a larger proportion of asian american applicants who are from disadvantaged backgrounds in the san francisco bay area than whites, the decision to redirect poor students while exempting other racial groups disproportionately affected asian american applicants.46 finally, and most significantly, legacy preferences47 are another form of negative action. legacies give special consideration to applicants with family members who are alumni or who have contributed financially to the school.48 at harvard, 16% of the 2,023 admitted students in 2014 had at least one alumni parent.49 while universities may claim that legacy preferences strengthen alumni bonds and tradition, these preferences were 37 id. 38 id. 39 id. at 199. 40 id. see also chin et. al., supra note 32, at 139. 41 see chew, supra note 17 at 63. 42 wang, supra note 13. 43 id. 44 see supra note 10, at 196. 45 id. to compound matters, the change was never announced publicly. id. 46 id. 47 c.n. le, a closer look at asian americans and education, new horizons for learning, johns hopkins school of ed. (dec. 2001), available online at http://education.jhu.edu/pd/newhorizons/strategies/topics/multiculturaleducation/a%20closer%20look%20at%20asian%20americans%20and%20education/. 48 liu, supra note 12, at 403. 49an hereditary meritocracy [sic], the economist (jan. 24, 2015), http://www.economist.com/news/briefing/21640316children-rich-and-powerful-are-increasingly-well-suited-earning-wealth-and-power. 86 a critique of the motivations behind negative action in u.s. universities vol. 5.2 originally introduced to give advantages to whites over jewish american applicants.50 as white applicants are more likely to have family members who are alumni or who have contributed financially to the school, legacies also tend to benefit white students over asian americans.51 from 1979 to 1988, asian americans accounted for 15.7% of all harvard applicants but only 3.5% of alumni children.52 the aforementioned examples delineate the wide variety of policies that currently exist to negatively affect asian americans in u.s. universities. the reasons for these policies are complex and often inconsistent, but are nevertheless important to understand in crafting effective solutions to the negative action problem. in its next part, this article will turn to examining and critiquing the motivations behind negative action against asian americans. 50 ann c. mcginley, the emerging cronyism defense and affirmative action: a critical perspective on the distinction between colorblind and race conscious decision making under title vii, 39 ariz. l. rev. 1003, 1041 n.237 (1997). harvard and princeton accept 40% and 35% of legacies respectively but only 11% of all applicants. at notre dame, nearly a quarter of students are children of graduates. see le, supra note 49. 51 liu, supra note 12, at 403. 52 golden, supra note 6, at 202. http://www.lexis.com/research/buttontflink?_m=8ccf55b893338ccc83e750ab4c40f080&_xfercite=%3ccite%20cc%3d%22usa%22%3e%3c%21%5bcdata%5b13%20mich.%20j.%20race%20%26%20l.%20391%5d%5d%3e%3c%2fcite%3e&_buttype=3&_butstat=2&_butnum=234&_butinline=1&_butinfo=%3ccite%20cc%3d%22usa%22%3e%3c%21%5bcdata%5b39%20ariz.%20l.%20rev.%201003%2cat%201041%5d%5d%3e%3c%2fcite%3e&_fmtstr=full&docnum=1&_startdoc=1&wchp=dglbvzw-zskal&_md5=fdaa1d951f0738e75915fcba0a6ff5e8 2015 columbia journal of race and law 87 iv. theorizing and critiquing the motivations behind negative action against asian americans while it is easy to consider active racism the sole motivating force behind negative action, such a belief is too simplistic. the motivations behind negative action against asian americans are complex and include both the conscious and unintentional aspects of racism and benevolence. in the table below, marked table 1, the intersections of each of these aspects are termed in ways that will be explained throughout this section. table 1: negative action is motivated in part, of course, by the conscious racist thought that defensive measures are required to prevent unfair competition by asian american students (quadrant 1). racism in negative action also stems, however, from unintentionally53 believing the corollaries of the model minority stereotype (quadrant 2).54 such corollaries include socialized beliefs about asian american student achievement, such as the idea that asian americans are only good at s.t.e.m. (science, technology, engineering and mathematics) fields, that asian americans are not well-rounded students, or that asian americans are below whites in the racial hierarchy in the united states. this article also examines what i have termed the “benevolence” aspects of negative action, in which admissions officers either consciously think or unintentionally believe that negative action would eventually be beneficial for asian americans, for example, by promoting racial diversity (quadrant 3), or reducing racial tension and resentment towards asian americans (quadrant 4). as jerry kang noted, one could assume that the responsible admissions officers . . . were racists who relished disadvantaging asian americans … another possible explanation is that these admissions officers sincerely, if mistakenly, believed that 53 virginia w. wei, asian women and employment discrimination: using intersectionality theory to address title vii claims based on combined factors of race, gender, and national origin, 37 b. c. l. rev., 771, 799. 54 gary okihiro, margins and mainstreams: asians in american history and culture 141 (1994) (“[t]he yellow peril and the model minority are not poles, denoting opposite representations along a single line, but in fact form a circular relationship that moves in either direction.”). motivation behind negative action conscious unintentional racism unfair competitor (quadrant 1) corollaries of the model minority stereotype (quadrant 2) benevolence promote racial diversity (quadrant 3) reduce racial tension and resentment (quadrant 4) http://www.westlaw.com/find/default.wl?rs=dfa1.0&vr=2.0&db=1101&findtype=y&referencepositiontype=s&serialnum=0107140200&referenceposition=792 http://www.westlaw.com/find/default.wl?rs=dfa1.0&vr=2.0&db=1101&findtype=y&referencepositiontype=s&serialnum=0107140200&referenceposition=792 http://www.westlaw.com/find/default.wl?rs=dfa1.0&vr=2.0&db=1101&findtype=y&referencepositiontype=s&serialnum=0107140200&referenceposition=792 88 a critique of the motivations behind negative action in u.s. universities vol. 5.2 curtailing the admission of asian americans would serve various pedagogical and social goals.55 admissions officers have acknowledged that various forms of conscious and unintentional biases influence their admissions decisions.56 reports by various universities including brown57 and stanford58 underscore the extent to which such conscious and unintentional factors negatively impact asian american admission rates. a. conscious racism: thinking that asian americans are unfair competitors some admissions officers think that negative action towards asian americans is necessary in order to limit “unfair competition”. the idea of asian americans as treacherous unfair competitors59 possessing mindless horde-like qualities60 has long been one of the predominant forms of anti-asian bias in the united states.61 white america has historically treated asians sceptically, viewing them as unfair competitors for jobs because of their docility—which made them willing to work in worse conditions and for lower wages than whites—and collectivism; as early as the 1800s, for example, japanese farmers62 and chinese laborers63 were resented for competing for scarce employment opportunities by taking positions at lower wages.64 whites believed that contending with asian american workers was unfair due to the fact that “[asian americans] can live where others stronger than [them] would starve. give [them] fair play and this quality enables [them] to drive out stronger races (1869 newspaper editorial).”65 these sentiments were also echoed in chae chan ping v u.s. where the supreme court stated that it was pointless for whites to compete against asian americans.66 in the same vein, the president of the seattle anti-japanese league in 1920 asserted that asian americans “will work harder, deprive themselves of every comfort and luxury, make beasts of burden of their women, and stick together, making a combination that america cannot defeat.”67 such anti-asian prejudice is sometimes erroneously rationalized by the assumption that asian americans are doing too well.68 envy of asian american success and prosperity prompted some white americans to react defensively and erect protectionist barriers around scarce resources.69 historical examples of such defensive measures include california’s 1852 mining tax levied against non-citizen miners (the vast majority of whom were asian american miners),70 san francisco’s manipulation of its licensing authority to 55 kang, supra note 10, at 19 (emphasis added). 56 tsuang, supra note 26 at 669. 57 id. at 665. brown u., report to the corporate committee on minority affairs from its sub-committee. on asian american admissions (1984). 58 stan. univ., cuafa sub-committee report on asian-american admissions 14 (1986). see also tsuang, supra note 26, at 665. 59 natsu taylor saito, model minority, yellow peril: functions of "foreignness" in the construction of asian american legal identity, 4 asian l.j. 71, 72 (1997). 60 keith aoki, foreign-ness & asian american identities: yellowface, world war ii propaganda, and bifurcated racial stereotypes, 4 asian pac. am. l.j. 1, 4, 33(1996). 61 wang, supra note 13, at 189. 62 eric k. yamamoto et. al., race rights & reparations: law and the japanese american internment 37 (2001). 63 teshima, supra note 6, at 127. 64 harvey gee, a review of frank wu’s renegotiating america’s multi-colored lines, n.y.c. l. rev. 203, 226 (2002). 65 roger daniels, asian america: chinese and japanese in the united states since 1850 40 (1988). 66 chae chan ping v. u.s., 130 u.s. 581 (1889) (“[asian americans] were generally industrious and frugal. not being accompanied by families, except in rare instances, their expenses were small; and they were content with the simplest fare, such as would not suffice for our labourers and artisans. the competition between them and our people was for this reason altogether in their favor . . . .”) (emphasis added). 67 kang, supra note 7, at 42 (emphasis added). 68 chin et. al., supra note 26, at 151. 69 chew, supra note 17, at 60. 70 yamamoto et al., supra note 56, at 37. http://www.westlaw.com/find/default.wl?rs=dfa1.0&vr=2.0&db=profiler-wld&docname=0374740301&findtype=h 2015 columbia journal of race and law 89 close chinese laundries while allowing white-owned laundries to remain open in the 1880s,71 the chinese exclusion act of 1882,72 the gentlemen's agreement of 1907 which excluded japanese immigrants,73 and california’s passage of a law barring noncitizens of japanese origin—which, as japanese people could not naturalize at this point in history, effectively applied to all persons of japanese origin—from fishing in state waters in the 1950s.74 such concerns about unfair competition continue to plague asian americans in the college admissions process. with regard to the scarcity of spots in highly selective u.s. universities, admissions officers may feel compelled to react defensively via negative action against the unfairly competitive asian american students (who are allegedly super-human and capable of studying inhuman hours without any need for leisure)75 since the “gradegrubbing asian-americans crowd out everyone else”.76 after all, at stake are places in traditional institutions from which the u.s. recruits its future leaders and elites.77 william kidder argues that universities fear a return to the yellow peril or asian people taking over.78 these fears stoked by notions of “japan inc.”, “pacific century”, “and the rise of the east and decline of the west”.79 as uc berkeley’s alumni magazine stated so vividly: i can't help but notice: so many asians! black head of hair after jet-black head of hair . . . uncomfortable notion stews in me, and the words push [through my] berkeley-bred politically correct mindscreen: the asians are taking over.80 these examples, though anecdotal, tell us that asian american stereotypes are an important facet of the asian american experience in applying to and potentially matriculating at schools like uc berkeley. it seems reasonable to believe that such fears of an “asian takeover” is in fact directly and indirectly contributing to negative action against asian american students. such problematic racial ideas are inaccurate and ultimately harmful to both schools and students. the allegation that asian americans are overly competitive is, quite simply, not accurate. some asian americans 71 this practice was struck down in the case of yick wo v. hopkins, 118 u.s. 356 (1886), after the supreme court found that all but one chinese-owned laundries had been denied permits while nearly all white-owned laundries had been granted them. id. at 374. 72 see generally michael patrick cullinane, the “gentlemen’s” agreement—exclusion by class, 32 immigrants & minorities 139 (2014). 73 saito, supra note 53, at 75. 74 yamamoto et al., supra note 56, at 37. for a full list of the myriad ways in which state and municipal governments sought to disadvantage asian americans, see tsuang, supra note 26, at 666 n.51 (citing various examples of statesponsored discriminations faced by asian americans). 75 see daniels, supra note 59, at 322 (quoting sentiments that asian americans are “the most hard-working, disciplined people imaginable” such that observers “don’t know when they sleep.”). see aoki, supra note 54, at 33 (noting alleged sub-human characteristics of asian americans, like “capable of working inhuman hours” and “threatening to the hardworking.”). 76 jay mathews, asian american students and school stereotypes, washington post, jan. 8, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/01/08/ar2008010802038.html. these sentiments are reminiscent of the early twentieth century where ivy league schools limited the number of jewish students despite their outstanding academic records to maintain the primacy of upper-class white protestants. 77 wang, supra note 13, at 201-202. 78 see kidder, supra note 8, at 606 (arguing that asian americans would benefit the most from eliminating affirmative action). see also scott jaschik, new arguments on affirmative action, inside higher ed, june 21, 2006, http://www.insidehighered.com/news/2006/06/21/affirm (discussing an article arguing that “the primary beneficiaries of the end of affirmative action in college admissions would be asian american applicants.”). 79 wu, supra note 4, at 229. 80 michelle ling, facing the asian invasion, cal. monthly, dec. 1998, available online at http://modelminority.com/joomla/index.php?option=com_content&view=article&id=159:facing-the-asian-invasion&catid=41:identity&itemid=56 (emphasis added). 90 a critique of the motivations behind negative action in u.s. universities vol. 5.2 may indeed be hardworking due to reasons ranging from a need to make an honest living and support their families to being determined to try their best after entering the united states as refugees and immigrants. however, homogenizing asian american identity under this banner is grossly—and statistically—inaccurate. for example, one northeastern university study compared asian american students and white students matched by gender, comparable scores on college entrance exams, and socioeconomic backgrounds as indicated by their parents’ educational backgrounds. contrary to the fearsome competitor stereotype, the asian american students had lower grade point averages, were more likely to be on academic probation, were more likely to withdraw for medical reasons, and were less likely to graduate than their white counterparts.81 beyond this, constructing a monolithic idea of “competitive asian” ignores the multiplicity of experiences within the asian american community. some asian american communities, for example, have a higher rate of poverty than the national average; 37.8% and 29.3% of hmong-americans and cambodian-americans respectively live below the poverty line in the u.s., as compared to the national average of 12.4%.82 these students are often the least able to access higher education, and are often the ones in need of the most help to adjust to college life.83 yet a belief in the inherent competitiveness and diligence of all asians often leads these students to elect not to pursue higher education or, upon admission, drop out at high rates.84 b. unintentional racism: believing the corollaries of the model minority stereotype the model minority stereotype has been extensively studied; on a very basic level, it refers to the idea that asian americans, through their hard work, intelligence, and emphasis on education and achievement, have been successful in american society.85 proponents of this stereotype point to certain statistics about asian american success, such as the fact that about 42% of all asian american adults have college degrees.86 like many racial stereotypes, while the model minority stereotype contains some truth, “it is exaggerated, distorted, and often presented without causes and contexts.”87 racial stereotypes of asian americans have deep structural roots and continue to pervade society because of the expanding reach and scope of contemporary media, only exacerbated by the trend towards the concentration of media control in the hands of increasingly fewer proprietors.88 81 elizabeth s.w. ahn toupin & linda son, preliminary findings on asian americans: “the model minority” in a small private east coast college, 22 j. cross-cultural psychol. 403, 406-412. 82 nat’l. comm’n. on asian am. and pac. islander research in educ., the asian/pac./am. institute at n.y.u., the steinhardt institute for higher educ. pol’y. at n.y.u. & college board, asian americans and pacific islanders facts, not fiction: setting the record straight 21 (2008). 83 see generally yang sao xiong, hmong americans’ educational attainment: recent changes and remaining challenges, 13 hmong studies j. 52 (2012). 84 id. 85 alfred chueh-chin yen, the diversity among us, 19 w. new eng. l. rev. 36, 37 (1997) (noting that “image of the asian-american as the highly successful, highly educated person who makes a lot of money, is free of discrimination, and who has worked hard to get ahead.”). see also daniels, supra note 65, at 317 (noting that the concept of “model minority” is now generally applied to “describe successful, upwardly mobile asian americans.”); chew, supra note 17, at 24 (arguing that “model minority” is “[t]he belief that asian americans are successfully assimilated into american society.”). 86 don nakanishi noted that the rise in the number of asian americans in u.s. colleges can be explained by demographic changes; for example, the asian american population increased from 1.5 million in 1970 to 3.5 million in 1980 and then to 7 million in 1990. don t. nakanishi, a quota on excellence? the asian american admissions debate, in the asian american educational experience: a source book for teachers and students 273, 276 (don t. nakanishi & tina yamano nishida eds., 1995). see also le, supra note 47 (arguing that “receiving an education is of paramount importance for the asian american community.”). 87 frank h. wu & william kidder, perspectives: asian americans aren’t white folks’ ‘racial mascots’, diverse: issues in higher educ. (oct. 4, 2006), http://diverseeducation.com/article/6480/. 88 see aoki , supra note 54, at 3 (listing important works showing the pervasiveness of negative stereotypes against asian americans.). 2015 columbia journal of race and law 91 admissions officers unintentionally believe that negative action against asian americans is justified because of the following corollaries of the model minority stereotype: (1) asian americans are only good at s.t.e.m. (science, technology, engineering and mathematics),89 (2) asian americans are not well-rounded students,90 and (3) asian americans are below whites in the racial hierarchy in the united states. this article elaborates on each in turn. 1. asian americans are only good at s.t.e.m. (science, technology, engineering and mathematics) one corollary of the model minority stereotype is that asian americans are essentialized to be only “mathematically and technically oriented rather than verbally skilled.”91 one harvard admissions officer said that asian americans’ admission chances are hurt as many who apply are pre-medical, science, and technical types.92 mit’s dean of admissions described a top asian american applicant as “yet another textureless math grind.”93 according to pulitzer prize–winner daniel golden, asians are typecast “in college admissions offices as quasi-robots programmed by their parents to ace math and science.”94 hence, while asian americans are deemed to be contenders for the westinghouse science talent search, their university admission chances are negatively impacted as they are not perceived by admissions officers to be good in other areas, including the humanities, law, and social sciences. this essentialization of asian americans as only being mathematically and technically oriented needs to be challenged for many reasons. first, a low admissions rate for asian americans into non-mathematical and technical fields has a negative spill-over effect on academia; asians remain underrepresented in numerous fields, such as history (2.2%), sociology (2.2%), english/literature (2.1%), philosophy (1.8%), education (1.6%), psychology (1.4%), political science (1.3%), and law (0.9%).95 it also leads to a serious underrepresentation of asian americans ph.d. holders in the humanities and social sciences.96 this observation has important consequences for the relatively high percentage of asian americans who do, in fact, pursue humanities and social sciences. the notion of asian americans only being interested in pursuing s.t.e.m. fields is meritless.97 in fact, asian americans seem more inclined to pursue degrees in non-s.t.e.m. fields than other groups; in 2003, for example, 26.1% of asian americans who received degrees majored in social sciences and the humanities, compared to the nationwide average of 19.5%.98 yet these degree holders, due to the unfair stigma associated with asian americans as only interested in s.t.e.m., may be unable to break into advanced degree programs or academia in their fields. universities are often explicit about the ways in which they stereotype asian american applicants. brown's admissions director had opined that the low asian american admissions rate is due the overwhelming 89 see aoki, supra note 54, at 46 (noting that asian americans are “imputed with preternatural technical expertise and a near-genetically based knowledge of the intricacies of science and mathematics.”). 90 tsuang, supra note 26, at 663. 91 teshima, supra note 6, at 130. 92 tsuang, supra note 26, at 671 n.84. 93 golden, supra note 4, at 201. 94 id. see also nat’l. comm’n. on asian am. and pac. islander research in educ., supra note 82, at 28 (noting that asian americans openly and routinely discuss the “extreme pressure and demands by their parents to enter disciplines that they perceive to be secure, for example, science, technology, engineering and mathematics (stem).”). 95 chin et al., supra note 26, at 154. 96 id. at 155-156 (noting that 70% of all ph. d. degrees earned by asian americans were in engineering, life sciences, and physical sciences, whereas asian americans are underrepresented in humanities and social sciences.) 97 tsuang, supra note 26, at 663-665. 98 nat’l. comm’n. on asian am. and pac. islander research in educ., supra note 82, at 7 (showing that 26.1% of asian american students, as compared to 19.5% of students for the national average, majored in social sciences and the humanities in 2003). http://www.westlaw.com/find/default.wl?rs=dfa1.0&vr=2.0&db=profiler-wld&docname=0374740301&findtype=h 92 a critique of the motivations behind negative action in u.s. universities vol. 5.2 number of asians applying as “pre-meds”—student who hope to pursue careers in medicine.99 in response, the asian american students association argued that the director had never defined what constitutes a “premed”; instead, he based “his determination on subjective considerations and stereotypes of asian applicants.”100 brown's faculty committee on minority affairs (coma) rejected the idea that there are too many asian “premeds” and found that the claim results from a “reliance on inference and not necessarily on the applicant’s declared major.”101 similarly, before adopting a completely race-blind admissions process, uc berkeley had suggested that its low admissions rate for asian americans was due to too many asian american applicants to the college of engineering.102 yet in its two largest engineering departments, the admissions rates of whites exceeded that of asian americans in all seven years studied.103 2. asian americans are not well-rounded students another corollary of the model minority stereotype that is used to justify negative action is the perception that asian americans are not well-rounded students.104 asian americans are characterized as one-dimensional,105 not well-balanced,106 and as participating in fewer extracurricular activities in high school than their white counterparts.107 consequently, while asian americans may score well on academic ratings, they perform less well on personal ratings108 and when they are assessed as part of a holistic review.109 this problem is exacerbated by the fact that the admissions process is susceptible to racial stereotyping. for example, descriptions of focused interest in science or engineering might be interpreted positively when applied to whites (e.g. “the student delves deeply into one topic and learns it thoroughly”), and negatively when applied to asian americans (e.g. “the student has narrow interests”).110 99 tsuang, supra note 26, at 663. 100 id. see also suzanne schlosberg, asians charge discrimination as admit rate drops to 15 percent, brown daily herald, may 8, 1986, at 1, 10. brown corp. comm. on minority affairs, statistical summary by third world categories for classes '79-'87 (1983), reprinted in asian am. students assoc. (aasa), asian american admission at brown university, tables 2a, 2b (oct. 11, 1983). 101 tsuang, supra note 26, at 664. see also subcommittee on asian am. admissions, report to the corporate committee on minority affairs from its sub-committee on asian american admissions (brown university, feb. 10, 1984). 102 tsuang, supra note 26, at 664. see generally linda mathews, when being best isn't good enough: why yat-pang au won’t be going to berkeley, l.a. times, july 19, 1987 (developing story of controversy in asian american admissions in berkeley). 103 tsuang, supra note 26, at 664; auditor general of cal., a review of first year admissions of asians and caucasians at the university of california at berkeley, 58-65 (oct. 1987). 104 see c.n. le, supra note 40. 105 see tsuang, supra note 20, at 664. 106 see pat k. chew, supra note 17, at 63. 107 l. biemiller, asian students fear top colleges use quota system, the chronicle of higher educ., nov. 19, 1986, at 34; irene chen, two students challenge asian american admission discrimination, brown daily herald (feb 9, 2007), http://www.browndailyherald.com/campus-news/two-students-challenge-asian-american-admission-discrimination1.1674972. 108 see tsuang, supra note 26, at 663. 109 timothy egan, the little asia on the hill, n.y. times (jan 7 2007), http://www.nytimes.com/2007/01/07/education/edlife/07asian.html?pagewanted=all. 110 stan. univ., cuafa sub-committee report on asian-american admissions 14 col. 2 (1986). see also tsuang, supra note 26, at 665 n.42. 2015 columbia journal of race and law 93 the perception that asian americans are not well-rounded students also stems from the fact that they are thought to be quiet,111 non-assertive,112 and lacking in english language113 and interpersonal skills.114 asian americans are thought to be less active in classrooms, and less likely to serve as charismatic and effective leaders.115 hence, for university admissions, asian americans tend to be scored poorly and not be given a “plus” for more intangible characteristics such as leadership qualities116 and special talents.117 this essentialization of asian americans students as not being well-rounded can be challenged in multiple ways. studies of asian american applicants to harvard, brown, and uc berkeley refute the stereotypical perception that asians avoid extracurricular activities. a department of education study of 58,000 high school students found that asian american students take part in all extracurricular offerings at rates comparable to those of their white counterparts. 13% of asian americans participated in band or orchestra compared to 14% of whites; 30% of asian americans participated in varsity athletics, compared to 34% of whites; 9% of students of asian origin, compared with 13% of white origin, participated in drama and debate. in certain areas, in fact, asian american participation in extracurricular activities exceeded white student participation. asian students had higher participation rates for student government (21% versus 16% for whites) and honorary clubs (28% versus 17% for whites).118 further, even if such stereotypes about asian american identity were true, they would not explain the disproportionately low admissions rates of asian american students compared with their white counterparts. take, for instance, the case of stanford university, which assigns each applicant a “non-academic rating” based on extracurricular achievements; a study found generally that asian americans were still admitted at a lower rate even when they received the same non-academic rating as whites.119 thus, it is clear that something more perniciously discriminatory at work. 3. asian americans are below whites in the united states’ racial hierarchy the third corollary of the model minority stereotype that is used to justify negative action of asian americans is the idea that even though they are a “model” for other minorities and are deployed as the “racial middle” of the white-black racial hierarchy,120 asian americans are still an inferior minority to whites121 in the racial hierarchy.122 111 christopher shea, victim of success?: are asian american students discriminated against in college admissions?, boston globe (nov. 26, 2006). see also liu, supra note 9, at 415. 112 see aoki, supra note 54, at 46. see also chew, supra note 17, at 38; teshima, supra note 6, at 130. 113 u.s. census bureau, the american community – asians: 2004 4 (2007). 114 see wu, supra note 4, at 245. 115 lydia lum, asian-americans hope to build pipelines to college presidencies, diverse: issues in higher educ. (oct. 5, 2009), http://diverseeducation.com/article/13097/asian-americans-hope-to-build-pipelines-to-college-presidencies.html. 116 bingham mccutchen, llp et. al., preserving diversity in higher education: a manual on admissions policies and procedures after the university of michigan decisions 20. 117 see egan, supra note 104. 118 samuel s. peng, school experiences and performance of asian-pacific american high school students table 9 (1984). profiles of sat candidates also indicated that ‘asian-american students [were] more likely to participate in social, ethnic, or community organizations’ than other sat candidates. the college board, profiles, college-bound seniors xix (1985). see also tsuang, supra note 26, at 663-65. 119 stan. univ., cuafa sub-committee report on asian-american admissions table 5 (1986). see also tsuang, supra note 26, at 664. 120 matsuda, supra note 3, at 149-50. 121 teshima, supra note 6, at 128. it is paradoxical that what may be transformative (asian americans being commended as a model minority instead of being seen as a competitor) can also be deeply legitimizing of the status quo (asian americans are still seen as an inferior minority to whites). 122 saito, supra note 53, at 89. http://www.westlaw.com/find/default.wl?rs=dfa1.0&vr=2.0&db=profiler-wld&docname=0374740301&findtype=h http://www.westlaw.com/find/default.wl?rs=dfa1.0&vr=2.0&db=profiler-wld&docname=0374740301&findtype=h 94 a critique of the motivations behind negative action in u.s. universities vol. 5.2 pat k. chew is the salmon chaired professor and distinguished faculty scholar at the university of pittsburgh school of law, and was named the inaugural recipient of the keith aoki asian pacific american jurisprudence award in 2014. she notes that asian americans are the “model minority” but not “model americans”—while whites view asian americans in more favorable terms than african americans and latinos, they still view asian americans as less intelligent, more violence-prone, lazier, and more likely to prefer living off welfare than whites.123 perhaps, worst of all, asian americans are viewed as a unit, rather than individuals,124 and as perpetual foreigners.125 c. conscious benevolence: thinking that negative action leads to diversity some admissions officers think that negative action towards asian americans leads to a more diverse campus,126 and that this diversity eventually benefits asian americans.127 such rationales for negative action suggest that asian american students themselves feel that they have lost something by going to universities where there are many asian americans, as they do not get a chance to develop their intercultural skills for the real world.128 proponents of negative action have advanced several possible reasons for why negative action towards asian americans leads to a more diverse campus. some argue that controlling the number of asian americans ensures that there are more spaces for less represented minorities such as latinos and african americans.129 others claim that the educational experience at these universities will be enriched with a variety of cultures and viewpoints.130 because of their myopic focus on their academic studies, such advocates claim, asian americans detract from the universities’ creativity.131 having fewer asian americans contributes to the universities’ culture of fostering student leadership through student clubs, sports teams, and artistic groups.132 admissions officers striving for a diverse student population may aspire towards a system of proportional representation by race; the university of california, for example, admitted that their goal was general parity between the racial and ethnic composition of the undergraduate enrolment and the state population in general.133 other universities may seek for a university’s student population to reflect the racial and ethnic minority representation of its respective locality.134 yet another goal is for admissions officers to strive for a flexible critical mass or variable goal of admitted minorities, and to monitor the demographic composition of the admitted class to evaluate the status of these goals or critical masses.135 admissions officers striving for a diverse student population may draw inspiration from the supreme court cases of board of regents of the university of california v. bakke (“bakke”), gratz v bollinger (“gratz”), and grutter v. bollinger (“grutter”). in bakke, justice powell indicated that it may be permissible to consider race if it was simply one factor in the admissions decision.136 accordingly, admissions policies that only consider race as a "plus" factor are constitutionally permissible in order to attain a diverse student body. grutter and gratz were a connected pair of cases in which the united states supreme court dealt with the affirmative action 123aoki, supra note 54, at 32-33. 124 see miller, supra note 18. 125 matthew yi and ryan kim, asian americans seen negatively: results of landmark survey called startling, disheartening, sfgate (apr. 27, 2001), http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2001/04/27/mn199998.dtl. 126 wang, supra note 13, at 200. 127 miller, supra note 18. 128 id. 129 kang, supra note 7, at 15; wang, supra note 13, at 200. 130 egan, supra note 104. 131 mathews, supra note 69. 132 id. 133 wu, supra note 4, at 245, 269. 134 annette b. alaskan, looking at diversity and affirmative action through the lens of filipino/a american students' experience at ucla and berkeley, 9 asian pac. am. l.j. 44, 77. 135 bingham mccuthen, llp, et. al., supra note 116, at 11. 136 regents of the univ. of cal. v. bakke, 438 u.s. 265, 317-18 (1978). 2015 columbia journal of race and law 95 admissions policies of the university of michigan at the law school (hereinafter “michigan law school”) and undergraduate (hereinafter “michigan”) levels respectively. in grutter, the court upheld michigan law school’s race-conscious admissions program which sought to obtain a “critical mass” of racial minorities; the flexibility of michigan law school’s policy distinguished it from a strict quota, as it considered a multitude of other factors in addition to race, ensuring individualized consideration of each applicant.137 the supreme court’s decision to strike down michigan’s admissions policy in gratz as unconstitutional, on the other hand, emphasized that policies which automatically and inflexibly assign benefits on the basis of race, such as michigan’s point system that allocated a fixed number of points for under-represented minority group members, are constitutionally suspect.138 the supreme court’s opinions in grutter and gratz reinforce the importance of flexible and holistic admissions policies that employ a limited use of race. diversity as a basis for negative action against asian americans is troubling for several reasons. ultimately, as diversity lacks an objective and precise definition, it can be formulated to exclude asian american applicants.139 first, diversity is a more capacious concept than that based on race and ethnicity alone;140 it also encompasses a diversity of experiences, ideas, socioeconomic backgrounds, and religious beliefs.141 second, even for race and ethnicity, one can advance a strong argument that asian americans which comprise so many different cultures considerably enhance the universities’ diversity. as discussed above, the ethnic, linguistic, cultural, and phenotypic variation encompassed in the term “asian american” belies the idea that asian americans are monolithic and can be considered unitary for purposes of diversity. asian american freshmen at schools like uc berkeley comprise, among others, chinese, indians, koreans, pakistani, filipino, japanese, vietnamese, and myanmese.142 third, the case-law (e.g. bakke) did not intend diversity to be used as a justification for discrimination against racial minorities such as asian americans.143 the concept of diversity was used in bakke to legally justify the universities’ use of an affirmative action program to bring in historically discriminated and underrepresented racial minorities; it was not meant as a basis for setting an unspecified upper limit of enrollment for well-qualified but overrepresented asian americans.144 otherwise, what was intended to be a shield for preferential admissions becomes distorted into a sword against a minority group seeking admissions.145 indeed, the supreme court itself has subsequently suggested that the very purpose of affirmative action is remedial; such policies are meant to correct the structural problems associated with the history of black and latino exclusion from higher education.146 universities’ myopic focus on proportional diversity—criticized elsewhere for its failure to actually remedy educational disparities because of the types of black and latino students selected147—thus also serves to disadvantage asian american applicants. 137 grutter v. bollinger, 539 u.s. 306, 336 (2003). 138 gratz v. bollinger, 539 u.s. 244 (2003). 139 liu, supra note 9, at 411. 140 tsuang, supra note 26, at 671-72. 141 liu, supra note 9, at 419-20. 142 egan, supra note 104. 143 tsuang, supra note 26, at 672. 144 wang, supra note 13, at 200. 145 tsuang, supra note 26, at 672. 146 parents involved in community schools v. seattle school dist. no. 1, 551 u.s. 701, 789-90 (kennedy, j., concurring). 147 valerie strauss, why we still need affirmative action for african americans in college admissions, the washington post: answer sheet (july 3, 2014), http://www.washingtonpost.com/blogs/answer-sheet/wp/2014/07/03/why-we-stillneed-affirmative-action-for-african-americans-in-college-admissions/. 96 a critique of the motivations behind negative action in u.s. universities vol. 5.2 d. unintentional benevolence: believing that negative action reduces racial tension and resentment against asian americans some admissions officers may believe that negative action benefits asian americans by reducing the racial tension and resentment against asian americans. this benevolent (albeit misguided) view may have historical roots in the early 20th century with regard to jewish students in highly selective u.s. universities. at that time, dartmouth’s president used liberal rhetoric to justify mobilizing its alumni to interview, screen, and reject jewish applicants, explaining it as the only way to prevent anti-semitism from increasing in the u.s. as it had in nazi germany.148 meanwhile, harvard’s president said “if every college in the country would take a limited proportion of jews, we should go a long way toward eliminating race feeling among the students, and, as these students passed out into the world, eliminating it in the community.”149 in the 1980s, university of california’s president candidly admitted that the overrepresentation of asian americans had caused racial “unrest” among whites who had been experiencing a decline in representation.150 one possible reason why proponents of this theory believe negative action reduces the racial tension is that it blunts the extraordinarily competitive environment that has emerged, for example, at uc berkeley, where white and asian american students vie head to head not only for admission but also for access to coveted majors such as engineering and business administration, particularly in light of an increasingly competitive job market.151 another explanation as to why negative action may reduce racial tension is that it reduces the number of asian american students whose images as diligent super-students have often kindled resentment in other students.152 at the university of california, davis, some members of the asian american community even interpreted the murder of an asian american graduate student as a sign that asian americans were studying too hard and getting too competitive.153 such racial tension worsens during difficult economic circumstances.154 this basis for negative action, even if well-intentioned, can be criticized on several fronts. first, it is highly questionable whether reducing the number of asian americans in fact reduces racial tension. even if one accepts that tenuous link, it is unfair that the cost of reducing racial tension is borne solely by asian americans. the problems discussed above lie solely with white students’ racist conceptions of asian americans; catering to those views at the expense of asian american communities is unjust. in fact, it may actually be counterproductive if it creates a pent-up resentment among asian americans. finally, such actions only preserve— rather than correct and equalize—disparate power structures benefiting whites; the same principles used to attack affirmative action for black and latino applicants—the meritocracy principle where the efficiency of competition in academics benefits society—is somehow displaced when dealing with asian american admissions.155 the logical inconsistency of this approach evinces its pretextual nature; such policies exist primarily to preserve white america’s advantages in higher education. v. possible ways forward for asian americans to deal with negative action having thus presented several of the problems associated with negative action against asian americans, this article now turns to re-envisioning the admissions process. what would be the ideal university admissions system? a more race-blind admissions system across the u.s. universities is likely to lead to the popular universities becoming like uc berkeley and the california institute of technology in terms of the 148 wang, supra note 13, at 204-05; kang, supra note 7, at 40. 149 wang, supra note 13, at 204-05. 150 id. at 200. 151 id. at 193. 152 dana y. takagi, the retreat from race: asian-american admissions and racial politics 60 (1992). 153 ronald tataki, strangers from a different shore 479 (1989). 154 daina c. chiu, the cultural defense: beyond exclusion, assimilation and guilty liberalism, 82. cal. l. rev. 1053, 1092 1093 (1994). chin, supra note 26, at 151. 155 gee, supra note 58, at 220. 2015 columbia journal of race and law 97 percentage of students of asian descent, that is, 45% and 43% in 2012 and 2013 respectively.156 further, such a system would do nothing to remedy the existing disadvantages facing black and latino applicants in the college admissions process. perhaps the best approach is to push for a more nuanced view of “diversity”; by advancing a deeper understanding of the heterogeneous makeup of america’s imperfect racial categorizations: “asian american” populations cannot be “represented” by persons of chinese, japanese, korean, and indian origin alone. “african american” students cannot simply be recent immigrants from various parts of the continent. rather, schools must broaden their understandings of racial identity and the complicated links between race, ethnicity, and immigration to create a truly inclusive environment. which strategies should be employed then to move towards this “ideal” with regard to dealing with negative action against asian americans? litigation is probably not the most effective way of dealing with negative action.157 this is because legal challenges often require a long runway in terms of time and other resources. furthermore, university admissions are subjective – it is not easy to pinpoint specific examples of bias by admissions officers who have to, by necessity, reject many applicants with great resumes (near perfect sat scores and many extra-curricular activities). these admissions officers use qualitative tools such as personal essays which are highly subjective in nature. as aforementioned, negative action is also partly motivated by unintentional racial bias which legal means are ill-equipped to handle. finally, given courts’ general reluctance to recognize disparate impact theories of discrimination, only by showing overt and conscious discriminatory treatment can lawsuits progress. this is not to devalue the countless amicus briefs, lawsuits, and complaints filed by asian american groups to challenge educational segregation. such suits can be fairly effective tools to engage and educate community-based organizations and their constituencies thereby helping to ameliorate the adverse effects of negative action, and to draw attention to important issues affecting the community.158 such litigation strategies should be supplemented, however, by some extra-legal means to tackle the underlying motivations of racism and benevolence behind negative action. grassroots organizing—from both asian american communities outside of schools and asian american student populations at schools—could push for more diversity recruitment coordinator positions. in doing so, these groups could propose guidelines pressing for the broader conceptions of diversity referenced briefly above. asian americans can also expand lobbying efforts against negative action, focusing efforts on building up a critical mass of asian american faculty and institutional leaders, and promoting positive asian american role models. first, creating more recruitment coordinator positions and educating them specifically to the issues addressed in this article can reduce the hurdles faced by asian american applicants in the admissions process of highly selective universities.159 these recruitment coordinators can help fellow admissions officers to recognize and overcome racial stereotypes160 and educate them on the diversity of the asian american community (i.e. wealth of experiences, ideas, socioeconomic backgrounds, and religious beliefs).161 the universities should be required to submit annual reports to the recruitment coordinators documenting the admission rates for asian americans compared to whites. such a reporting requirement would ensure that the universities are more vigilant in their efforts to eliminate discriminatory barriers for asian american applicants and would also provide an external monitoring mechanism.162 importantly, these recruitment coordinators could also measure the success of the “plus factor” of affirmative action in improving the admissions rates of african american students beyond just recent immigrants. 156 dhar, supra note 20; hsu, supra note 21. 157 see tsuang, supra note 26, at 665 (noting how this problem can be dealt with legally under a constitutional equal protection claim). 158 robert s. chang and karin wang, democratizing the courts: how an amicus brief helped organize the asian american community to support marriage equality, 14 ucla asian. pac. am. l.j. 401, 402. 159 tsuang, supra note 26, at 677. 160 id. at 677. 161 liu, supra note 11, at 419-20. 162 tsuang, supra note 26, at 677. 98 a critique of the motivations behind negative action in u.s. universities vol. 5.2 second, asian americans should expand lobbying efforts against negative action. successful lobbying by the asian american law students’ association led to uc berkeley’s boalt hall school of law to create “the asian special admissions program” in 1970, which was unfortunately dismantled 5 years later.163 presently, asian americans are less politically organized and vocal than many other racial groups in the u.s.164 this is unsurprising, as the asian american community is not homogeneous; almost 30 distinct groups are lumped together under the asian american rubric, from the fifth-generation japanese-american to the hmong farmer.165 in addition, while the asian american community is growing rapidly, it lacks sufficient size to generate political clout. hence, in order for asian americans to have a powerful voice, asian americans must work in coalition with other communities that have overlapping interests.166 discrimination in education affects all communities of color, though it may take different forms against each; by building effective coalitions with other racial groups, asian american organizers can push for a more equitable education system overall. third, in the middle to long term, organizers should focus on building up a critical mass of asian american faculty and institutional leaders. presently, such asian american leaders are too few in number and not the decision-makers of most highly selective universities. save for a few exceptions, asian american leaders are woefully underrepresented in university leadership; just 33 college or universities in the united states—less than 1% of all universities—are led by asian americans.167 having a critical mass of asian american faculty and institutional leaders is essential for advocating and providing leadership for and about asian american students. finally, we should promote positive asian american role models to the rest of the u.s. population to combat the unintentional bias of the admissions officers.168 these role models should be high achievers with well-rounded lives and/or have excelled in fields not usually associated with asian americans. present day examples include the harvard-educated nba basketballer jeremy lin, judge denny chin (the only active judge of the u.s. court of appeals outside of california and hawaii), yul kwon who was the yale law school and stanford-educated lawyer and management consultant who won “survivor” which catapulted him to people magazine’s lists of “sexiest men alive” and “hottest bachelors”, and actor daniel dae kim who starred in the hit tv series “lost” and “hawaii five-o”.169 a slightly dated example but one who had ample positive media exposure is the former top-ranked tennis player michael chang. while the diversity of the asian american community makes it difficult for role models to represent the entire community, such examples can break down many of the stereotypes of asian americans discussed in the article. such a long term strategy can re-negotiate asian americans’ racialized identity170 and combat the unintentional bias of admissions officers. vi. conclusion negative action against asian americans has important ramifications it affects the next generation of asian american leaders, with adverse ripple effects on asian american numbers in graduate schools, academia, 163 see asian am. law students assoc., report of the boalt hall asian american special admissions project, 5 amerasia j. 21 (1978). 164 aoki, supra note 54, at 46; chew, supra note 17, at 4. 165 patricia alex, the secret world of college admissions, ivy success: the record (jan. 30, 2005), http://ivysuccess.com/therecord013005.html. 166 chang, supra note 153, at 405-406. 167 nat’l. comm’n. on asian am. and pac. islander research in educ., supra note 82, at 7. 168 see chin, supra note 26, at 136 n.28. (stating that “this is not to say that people can have role models of only their own race. nonetheless, in america today, race continues to have social salience such that the successes of a minority individual will often inspire other individuals of the same race to imagine and attempt similar success.”). 169 jeff yang, the real reason why asian americans are outmarrying less, wall st. j.: speakeasy (apr. 16, 2012), http://blogs.wsj.com/speakeasy/2012/04/16/the-real-reason-why-asian-americans-are-outmarrying-less/. 170 see aoki, supra note 54, at 60 (arguing that the history of asian american racial stereotyping can and should be destabilised and reinterpreted through new artistic, cultural, economic, and legal means). http://danieldaekim.com/ 2015 columbia journal of race and law 99 and the professional fields. to deal with negative action against asian americans, it is crucial to first understand the motivations behind negative action. this article has argued that the motivations behind negative action against asian americans are complex – they are an intricate tapestry of racism and benevolence interwoven with both conscious and unintentional aspects. in critiquing the motivations behind negative action against asian americans by unpacking a four-quadrant matrix, this article has sought a deeper understanding of how to deal with negative action against the “model victims.” in order to build power in the asian american community, such stereotyping and racialized disadvantage must be addressed in a more honest and meaningful way. universities’ current approaches to student body demographics—whether uc berkeley’s pure meritocracy system or the aesthetic diversity approaches of yale or harvard—are inadequate to ensure truly equal access to higher education. this article argues that it is necessary to have a more nuanced conception of college diversity that remains true to the spirit of remediation for america’s legacy of racial injustice while simultaneously seeking to dismantle stereotypes and racism. only by seriously grappling with its own history and the cultural scripts that disadvantage asian americans—and all groups of color—can america hope to effectuate its ideals of true meritocracy. microsoft word johnson v6 final.docx 48 constitutional rights of minority youth on rikers island vol. 6.1 48 protecting the constitutional rights of minority youth on rikers island loretta a. johnson* in 2014, the united states attorney’s office for the southern district of new york released a report on their investigation into the patterns and practices of treatment of adolescent inmates on rikers island, finding systemic defects that result in the pervasive violation of the adolescent inmates’ constitutional rights. ninety-five percent of the adolescent population on rikers is black or latino. new york is uniquely harsh with its treatment of 16and 17-year-olds, as it and north carolina are the only states to set the minimum age of criminal responsibility at 16. over seventy-five percent of youth on rikers island are awaiting trial and have not been convicted of a crime. the prevalence of the unconstitutional conduct on rikers island is attributable, in large part, to the lack of accountability among department of corrections (doc) staff members on rikers island, which results in a code of silence. to effectively deal with the pervasive pattern and practice of conduct on the part of doc staff that violates adolescent inmates on rikers island’s constitutional rights, it is crucial to understand the differences between adolescents and adults and the power of the doc staff union. this note posits that in order to create meaningful reform and protect the constitutional rights of adolescent inmates, the cut-off age for criminal responsibility should be raised so that 16 and 17-year-olds fall under the jurisdiction of the family court and are not placed on rikers island. additionally, the portion of the administrative code requiring all uniformed doc ranks to be filled by promotion from within the uniformed force must be amended to obstruct the code of silence and prevent violence against inmates. without such measures, the abuses against minority youth on rikers island will persist. i. introduction ............................................................................................... 50 ii. the report on the new york city department of correction adolescent jails on rikers island .......................................................... 53 a. the constitutional rights of inmates: the eighth amendment ...... 53 b. federal authority: the civil rights of institutionalized persons act, 42 u.s.c. § 1997; section 14141 of the violent crime control and law enforcement act of 1994 ..................................................................... 54 c. the report .......................................................................................... 55 1. doc staff members use force excessively and unnecessarily resulting in a high frequency of inmate violence ................................................................... 55 2. the doc system contains universal deficits resulting in a high frequency of inmate violence ................................................................................................. 56 3. the rikers island adolescent jails have excessive and inappropriate use of extended punitive segregation ........................................................................... 58 4. the report’s conclusion .................................................................................... 59 2015 columbia journal of race and law 49 49 iii. the federal lawsuit’s ability to effectively reform the culture of violence on rikers island adolescent jails is limited by the power of coba ............................................................................................................... 60 a. outcomes of institutional reform litigation ..................................... 60 b. the nunez v. city of new york settlement agreement .................... 61 1. appointment of an independent monitor ............................................................ 61 2. creation of a new use of force policy, reporting requirements and improvements in use of force incident investigations ................................................................ 61 3. increased staff member accountability ............................................................... 62 4. increased video surveillance of jails ................................................................... 63 5. improved tracking systems and the development of ews ................................ 63 6. improvements in staff member training ............................................................ 63 7. provisions for adolescent inmates ....................................................................... 64 c. limitations of the nunez v . ci ty o f new york institutional reform litigation and the power of coba ..................................................... 64 1. failure of recent reform initiatives and the long history of lawsuits .............. 65 2. the primary concern of jails hinders reform efforts ........................................ 65 3. disincentives on the ground ............................................................................... 66 4. recent promotions within the doc illustrate the disincentives .......................... 66 5. disincentives from civil service laws ................................................................ 67 6. disincentives from coba and norman seabrook ............................................ 68 7. empathy does not incentivize reform: the phenomenon of black on black violence ............................................................................................................. 69 iv. in order to protect the constitutional rights of adolescent inmates on rikers island, ny penal law section 30.00 and section 9-117(b) of the new york city administrative code must be amended .................... 69 a. amend new york penal law section 30.00 ....................................... 70 1. proposals to amend new york penal law section 30.00 ................................ 72 2. opponents of the amendment of new york penal law sec. 30.00 .................. 73 b. amend section 9-117(b) of the new york city administrative code . 74 50 constitutional rights of minority youth on rikers island vol. 6.1 50 1. opponents of the amendment of section 9-117(b) of the new york city administrative code .......................................................................................... 74 2. improving the morale of doc staff members .................................................... 75 v. conclusion ................................................................................................... 76 i. introduction while resting his head on a desk during class, inmate h abruptly woke up to a correctional officer who was hitting him in his ribcage.1 while not ideal, sleeping in class is expected behavior for a 16to 17year-old adolescent boy like inmate h. yet, this behavior, along with other normal adolescent behavior, is often met with excessive force in adolescent jails on rikers island. after jumping up to defend himself, an officer punched inmate h in the eye hard enough that he fell to the floor.2 three or four more officers joined, kicking inmate h in his back, head, face and mouth while pepper spraying him an inch from his eye.3 the teacher in the classroom saw inmate h lying on the floor “looking dazed” and encouraged the class to look away.4 she heard an officer shouting at inmate h, loud thuds, and inmate h crying for his mother.5 not until four hours after the incident did anyone take inmate h to see medical staff.6 this incident occurred in september of 2012,7 and it is one of 200 samples of use of force incidents included in a report (“the report”) released on august 4, 2014. the report was the product of an investigation by the united states attorney’s office for the southern district of new york into the patterns and practices of treatment of adolescent inmates on rikers island.8 the 200 samples illustrate the systemic defects that result in the violation of the adolescent inmates’ constitutional rights.9 the prevalence of the unconstitutional conduct on rikers island is attributable, in large part, to the lack of accountability among department of corrections (doc) staff members on rikers island, which * j.d. 2016, columbia law school; b.a. 2011, loyola marymount university. the author would like to thank professor jeffrey fagan for his guidance and the staff of the columbia journal of race and law for their invaluable editing contributions. the author would also like to thank judge bryanne hamil, member of the nyc board of correction, for introducing me to this important issue. 1 letter from jocelyn samuels, acting assistant attorney general, civil rights division, preet bharara, u.s. att’y for the s. dist. of n.y., jeffrey k. powell, assistant u.s. att’y, and emily e. daughtry, assistant u,s, att’y, to bill de blasio, mayor of n.y.c., joseph ponte, comm’r of n.y. dep’t of corr., and zachary carter, corp. counsel of n.y.c. (aug. 4, 2014) (on file with the u.s. department of justice), available at http://www.justice.gov/sites/default/files/usaosdny/legacy/2015/03/25/sdny%20rikers%20report.pdf. 2 id. 3 id. 4 id. at 74. 5 id. 6 id. at 72. this is a common practice referred to as “bus therapy.” according to prison officials familiar with the practice, officers on rikers island would take an inmate to the hospital shortly after an incident and drive the inmate around in circles for long periods of time before going to the hospital. in some cases, the hospital was only fifteen minutes away. see also michael winerip & michael schwirtz, rikers: where mental illness meets brutality in jail, n.y. times, july 14, 2014, http://www.nytimes.com/2014/07/14/nyregion/rikers-study-finds-prisoners-injured-byemployees.html?_r=0 (last visited feb. 27, 2014). 7 id. at 72. 8 samuels, bharara, powell, & daughtry, supra note 1, at 1. 9 id. at 2. 2015 columbia journal of race and law 51 51 results in a code of silence.10 the report concluded that doc staff members not only insufficiently investigate and report use of force incidents, but also frequently falsify reports.11 the rare times doc staff members are found to have used force inappropriately, they are nonetheless insufficiently disciplined.12 while the incident with inmate h is representative of the common vicious practices that occur daily on rikers, it is unique in that there were multiple witnesses corroborating inmate h’s version of events, most notably statements from three teachers.13 inmates, medical staff members and teachers rarely report use of force incidents out of fear of retribution from guards.14 additionally, it is particularly common for excessive use of force incidents to occur in areas where there are no surveillance cameras, just as was the case with inmate h, making it difficult to hold doc staff members accountable.15 the lack of accountability on rikers island persists because doc officers maintain much political clout as members of the largest municipal jail union in the country, the correction officers’ benevolent association (coba).16 moreover, they are led by a powerful president.17 institutional racism also accounts for the persistence of unconstitutional conduct on rikers island.18 ninety-five percent of the adolescent population on rikers is black or latino.19 new york is uniquely harsh with its treatment of 16and 17year-olds, as it and north carolina are the only states to set the minimum age of criminal responsibility at 16.20 a recent surge in the prison population over the past decades, the “war on drugs,” over-policing in minority communities, racial profiling and judicial discretion leading to disproportionately harsh sentences for people of color, have largely resulted in a majority-minority prison population.21 black males are most significantly affected, as they are two-and-a-half times more likely to be detained than latino males, and six times more likely to be detained than white males.22 in 2010, two-thirds of the 800 16and 17year-olds incarcerated in new york were black, 26 percent were latino and 5 percent were white. 23 the rikers youth population comes from disenfranchised, marginalized, low-income communities of color that lack political power and resources, making it easy for politicians and officials to ignore the abuses they experience.24 fifty-one percent of youth on rikers island have been diagnosed with a mental illness.25 over seventy-five percent are awaiting trial and have not been convicted of a crime,26 and 10 see id. at 21. 11 id. at 4. 12 id. 13 id. at 73-74. 14 id. at 24-25. 15 id. at 20. 16 see about correction officer’s benevolent association, correction officers’ benevolent association, inc., www.cobanyc.org/about-coba (last visited feb. 27, 2014), for general information about the size, founding, and mission of coba, based in the new york city boroughs. 17 see michael winerip & michael schwirtz, at rikers island, union chief’s clout is a roadblock to reform, n.y. times, dec. 14, 2014, http://www.nytimes.com/2014/12/15/nyregion/at-rikers-a-roadblock-toreform.html?action=click&contentcollection=n.y.%20%2f%20region&module=relatedcoverage&region=marginali a&pgtype=article (last visited feb. 27, 2014). 18 andrew o’donohue, race and rikers, harvard political review, nov. 11, 2014, http://harvardpolitics.com/united-states/race-rikers/ (last visited feb. 27, 2014). 19 id. 20 ellen yaroshefsky, rethinking rikers: moving from a correctional to a therapeutic model for youth 12 n.22 (2014). 21 see o’donohue, supra note 18; see also the new york advisory comm., the solitary confinement of youth in new york: a civil rights violation 5 (2014). 22 id. 23 id. at 6. 24 o’donohue, supra note 18. 25 samuels, bharara, powell, & daughtry, supra note 1, at 6. 26 yaroshefsky, supra note 20, at 3. 52 constitutional rights of minority youth on rikers island vol. 6.1 52 the vast majority of inmates on rikers island have been charged with low-level offenses.27 it is common for youth to be sent to rikers to wait for trial when the charges are ultimately dismissed. for example, at 16years-old, kalief browder, was accused of stealing a backpack and spent three years on rikers island, of which two years were spent in solitary confinement. ultimately, he never stood trial nor was he found guilty of any crime.28 browder later committed suicide after his release.29 as a result of the culture of violence on rikers, many youth remain stuck there with charges resulting from incidents with guards and other inmates.30 the racial demographics of the rikers youth population, along with the systemic disregard for the humanity of such inmates, amounts to a pervasive devaluing of minority youths’ lives. in addition to the lack of accountability and devaluing of minority youth, the unconstitutional conduct at the jail also harms the public at large. rehabilitation rarely occurs, and the recidivism rate among youth is high.31 the average number of previous admissions of youth to doc in 2013 was 1.02.32 the high recidivism rates also mirrors what occurs across the nation, as each year 70-80% of formerly incarcerated youth reoffend within 2-3 years.33 because the culture of violence on rikers island harms adolescents in ways that hurt their future prospects, the practices of doc staff members decrease long-term public safety because such practices encourage criminal behavior34—behavior oftentimes necessary for survival on rikers island.35 in addition to the lack of benefit to public safety, incarcerating youth on rikers is costly. each adolescent inmate costs new york city taxpayers $167,000 a year.36 the pattern of excessive and unconstitutional use of force has been going on for thirty years.37 the report marked the end of a much-needed investigation and recommended the implementation of remedial measures to protect the constitutional rights of adolescent inmates.38 the report warned that if there were no resolution within 49 days, the attorney general would initiate a lawsuit against the city pursuant to the civil rights of institutionalized persons act (“cripa”), 42 u.s.c. § 14141.39 in december 2014, unsatisfied with the city’s implementation of the report’s remedial recommendations, the department of justice (“doj”) announced plans to join the ongoing class action, nunez v. city of new york, as part of an effort to sue new york city over constitutional violations outlined in the report.40 nunez alleges that the systemic pattern and practice of unnecessary force against all inmates on rikers island amounts to conduct that violates inmates’ constitutional rights.41 in june of 2015, the city of new york agreed to settle the nunez 27 dana goldstein et al., inside rikers island, through the eyes of the people who live and work there, new york magazine, june 29, 2015, http://nymag.com/daily/intelligencer/2015/06/inside-rikers-island-interviews.html. 28 michael winerip & michael schwirtz, kalief browder, held at rikers island for 3 years without trial, commits suicide, n.y. times, june 8, 2015, http://www.nytimes.com/2015/06/09/nyregion/kalief-browder-held-at-rikers-island-for-3-yearswithout-trial-commits-suicide.html (last visited jan. 14, 2016). 29 id. 30 o’donohue, supra note 18. 31 samuels, bharara, powell, & daughtry, supra note 1, at 6. 32 id. 33 yaroshefsky, supra note 20, at 3. 34 id. 35 see o’donohue, supra note 18. 36 yaroshefsky, supra note 20, at 3. 37 see jennifer gonnerman, a lawsuit to end abuse at rikers, new yorker, dec. 19, 2014, http://www.newyorker.com/news/daily-comment/lawsuit-end-abuse-rikers (last visited feb. 27, 2014). 38 samuels, bharara, powell, & daughtry, supra note 1, at 51. 39 id. at 64 40 jillian jorgensen, u.s. attorney preet bharara moves to sue city over violence at rikers island, observer, dec. 18, 2014, http://observer.com/2014/12/u-s-attorney-preet-bharara-moves-to-sue-city-over-violence-at-rikers-island/ (last visited feb. 27, 2014). 41 samuels, bharara, powell, & daughtry, supra note 1, at 3 n.5. 2015 columbia journal of race and law 53 53 lawsuit.42 while the doj’s involvement and the city’s settlement may seem like a beacon of hope for meaningful reform, there are limitations with proposed federal intervention and the resulting requirements of the settlement agreement. this note argues that because of political and organizational undercurrents within the corrections system, and the power of coba, the settlement of the federal lawsuit will likely create only remedial change, leaving the unconstitutional conduct unabated. in order to end the culture of violence, the cut-off age for criminal responsibility should be raised so that 16and 17year-olds fall under the jurisdiction of the family court. additionally, the portion of the administrative code requiring all uniformed doc ranks to be filled by promotion from within the uniformed force must be amended to prevent violence against inmates. part i provides a description of the laws surrounding inmates’ rights, federal authority and the report. part ii outlines the limitations of the federal lawsuit and the resulting settlement agreement through a discussion of the limitations of federal lawsuits in prison reform efforts and the power of coba. part iii argues that in order to protect the constitutional rights of adolescent inmates on rikers island, the new york penal law § 30.00 must be amended so that adolescents are no longer criminally responsible. this section also proposes amending § 9-117(b) of the city administrative code so that high-ranking officials in doc can be appointed from outside the doc. the last section concludes by discussing the importance of protecting the minority youth on rikers island. ii. the report on the new york city department of correction adolescent jails on rikers island this section provides a description of the report and investigation of the new york city doc adolescent jails on rikers island. first, there is a discussion of the background laws surrounding prisoners’ constitutional rights. next, there is a discussion of the laws that provide the federal authority surrounding the investigation and the doj lawsuit against new york city. lastly, there is a description of the report’s findings. a. the constitutional rights of inmates: the eighth amendment the eighth amendment’s ban on cruel and unusual punishment applies to the states through the due process clause of the fourteenth amendment.43 the supreme court has held that when someone is placed under the custody of a jurisdiction and detained against his will, the eighth amendment “imposes upon [the jurisdiction] a corresponding duty to assume some responsibility for his safety and general wellbeing.”44 the constitution requires officers working in prisons “take reasonable measures to guarantee the safety of inmates.”45 courts have required both a subjective and objective inquiry into whether prison officials have violated the eighth amendment by failing to protect the safety and wellbeing of inmates.46 the 42 benjamin weiser, new york city settles suit over abuses at rikers island, n.y. times, june 22, 2015, http://www.nytimes.com/2015/06/23/nyregion/new-york-city-settles-suit-over-abuses-at-rikers-island.html?_r=0 (last visited march 10, 2016). 43 robinson v. california, 370 u.s. 660 (1962). 44 cnty. of sacramento v. lewis, 523 u.s. 833, 851 (1998) (quoting deshaney v. winnebago cnty. dep’t of soc. servs., 489 u.s. 189, 199-200 (1989)); see also randle v. alexander, 960 f. supp. 2d 457, 471 (s.d.n.y. 2013). 45 hudson v. palmer, 468 u.s. 517, 526-27 (1984); hayes v. n.y.c. dep’t of corr., 84 f.3d 614, 620 (2d cir. 1996) (citation omitted). 46 see farmer v. brennan, 511 u.s. 825, 834 (1994) (concluding prison officials violate the eighth amendment when two requirements are met). 54 constitutional rights of minority youth on rikers island vol. 6.1 54 subjective element requires evidence that there was “deliberate indifference” on the part of prison officials in protecting an inmate’s health or safety.47 as mentioned above, 75 percent of the adolescent inmates on rikers island are pre-trial detainees, which grants them constitutional rights under standards different from convicted prisoners.48 however, courts have regularly held that the eighth amendment yields pre-trial inmates “at least those constitutional rights…enjoyed by convicted prisoners.”49 the eighth amendment and fourteenth amendment prohibit disproportionate corporeal force against prisoners and pre-trial detainees.50 courts consider numerous factors to determine whether use of force was reasonably thought to be required in the circumstances. these factors include the magnitude of the inmate’s injury, the necessity for the use of force, the correlation between the need for force and extent officials actually used force, “the threat reasonably perceived by the responsible officials,” and “any efforts made to temper the severity of a forceful response.”51 b. federal authority: the civil rights of institutionalized persons act, 42 u.s.c. § 1997; section 14141 of the violent crime control and law enforcement act of 1994 the civil rights of institutionalized persons act (“cripa”), 42 u.s.c. § 1997, gives the attorney general, acting on behalf of the united states, discretionary authority to file a civil action against a state or its political subdivision for engaging in a pattern or practice of conduct that deprives persons in custody at an institution enjoyment of rights, privileges, or immunities protected by the constitution. 52 the term “institution” is defined by the act, among other things, as a jail, prison, correctional facility or pre-trial detention facility.53 “institution” is also defined as any facility or institution housing juveniles awaiting trial.54 cripa gives the attorney general subpoena authority that permits access to any document, record, material, file, report, memorandum, policy, procedure, investigation, video or audio recording, or quality assurance report relating to any institution that is subject to an investigation concerning allegations of unconstitutional conduct in a prison setting.55 cripa also provides the attorney general with authority to initiate a lawsuit regarding the unconstitutional conduct if parties are unable to reach a resolution at least 49 days after the appropriate officials have received notice of the investigation’s findings and measures necessary to remedy the unlawful conduct.56 section 14141 of the violent crime control and law enforcement act of 1994 similarly provides legal grounds to sue any government authority or agent responsible for imprisoned juveniles from participating in a pattern or practice of conduct that deprives juveniles of their constitutional rights.57 the 47 id. (“deliberate indifference” is sufficiently proven when the official “knows of and disregards an excessive risk to inmate health or safety.”) id. at 837. “[t]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” id. the objective inquiry depends on whether the inmate, “is incarcerated under conditions posing a substantial risk of serious harm.” id. at 834. “importantly, the objective prong can be satisfied even when no serious physical injury results.” randle, 960 f. supp. 2d at 473. 48 yaroshefsky, supra note 20, at 3. 49 bell v. wolfish, 441 u.s. 520, 545 (1979); see also cuoco v. moritsugu, 222 f.3d 99, 106 (2d cir. 2000) (stating that the eighth amendment deliberate indifference test should be applied by courts to actions brought under the due process clause of the fourteenth amendment by pre-trial detainees); wyant v. okst, 101 f.3d 845, 856 (2d cir. 1996). 50 see farmer, 511 u.s. at 832; see also united states v. walsh, 194 f.3d 37, 48 (2d cir. 1999). 51 hudson v. mcmillian, 503 u.s. 1, 7 (1992). 52 42 u.s.c. § 1997a(a) (2015). 53 42 u.s.c. § 1997. 54 id. 55 42 u.s.c. § 1997a-1. 56 42 u.s.c. § 1997b(a)(1). 57 see 42 u.s.c. § 14141(a) (2015). 2015 columbia journal of race and law 55 55 attorney general has authority to obtain equitable and declaratory relief through a civil action.58 the special litigation section of the civil rights division of the doj is responsible for enforcing section 14141.59 c. the report the doj investigated whether the doc sufficiently protected 16and 17year-old inmates from harm.60 this inquiry was narrowed down to three sub-issues: whether doc staff members inflict excessive and unnecessary force on adolescent inmates, whether adolescents on rikers are sufficiently protected from other inmates, and whether adolescents suffer excessive harm from doc’s frequent use of punitive segregation.61 rikers island is 400 acres of land spanning the east river.62 the vast majority of the doc’s 14,000 average daily inmate population is managed in one of the ten facilities.63 only one of these facilities houses convicted prisoners serving a year or less; the rest are pre-trial detainees.64 in 2013, there were 682 adolescents housed on rikers island.65 the timeline of the investigation was 2011 through the end of 2013.66 the doj looked at records from the doc and the agency responsible for providing medical services to detainees on rikers island, the department of health and mental health.67 the types of records included use of force investigative files, inmate medical records, policies and procedures, training materials, disciplinary records, and programmatic materials.68 the doj toured rikers island with a consultant with expertise in corrections and use of force.69 the doj interviewed inmates, staff members, senior staff members, the commissioner, and members of the board of correction.70 the doj also reviewed materials from the board of correction and legal aid society.71 1. doc staff members use force excessively and unnecessarily resulting in a high frequency of inmate violence the report discussed the extraordinary frequency of violence in adolescent jails,72 and how the excessive and unnecessary force from staff members leads to inadequate protection for adolescent inmates.73 this conclusion was based on the frequency of use of force with no imminent risk of injury, use of force in camera-free areas, and inmate-on-inmate violence. forty-three percent of the 705 adolescents detained in 2012 experienced force from staff members at least once, a use of force rate higher than what the expert 58 see 42 u.s.c. § 14141(b). 59 samuel walker & morgan macdonald, an alternative remedy for police misconduct: a model state “pattern or practice” statute, 19 geo. mason u. c.r. l.j. 479, 502 (2009) (“responsibility for enforcing section 14141 lies with the special litigation section of the civil rights division of the department of justice.”). 60 samuels, bharara, powell, & daughtry, supra note 1, at 1. 61 id. 62 id. at 5. 63 id. 64 id. 65 id. at 6. 66 id. at 2. 67 id. 68 id. 69 id. 70 id. 71 id. 72 id. 73 id. at 7. 56 constitutional rights of minority youth on rikers island vol. 6.1 56 consultant had ever seen.74 the report declared that the inappropriate use of force by staff members amounts to a deliberate indifference to the safety of the adolescent inmate population, thereby violating the eighth amendment.75 the doc use of force policy states that “force may only be used ‘as a last alternative after all other reasonable efforts to resolve the situation have failed.’”76 the policy also requires that “the amount of force used at any time should always be proportional to the threat posed by the inmate at that time.” 77 additionally, “staff must start with the minimum amount of force needed and escalate the amount of force used only if the situation requires escalation.” 78 despite this policy, staff members frequently use headshots—“blows to an inmate’s head or facial area”79—during situations when there is no imminent risk of serious physical harm.80 abusive physical force is frequently used in response to verbal altercations, in response to inmates’ failure to comply with instructions and to punish or retaliate.81 staff members frequently yell, “stop resisting” to appear as if force is justified when the adolescent inmate has already been subdued or never resisted.82 the report described the high frequency of force used in areas without surveillance cameras and found that the most egregious use of force incidents occur in those areas.83 the consultant also reported that he had never witnessed a system with so much inmate-on-inmate violence, another contributing factor to inadequate protections for adolescents.84 as a result of excessive violence from both staff members and inmates, there are high numbers of serious injuries and inmates in the adolescent facility are significantly more likely to sustain a serious head injury than inmates in any other rikers facility.85 these injuries include fractures, lacerations and contusions to inmates’ heads.86 these findings led the investigation to conclude that the doc has insufficiently protected adolescent inmates from harm. 2. the doc system contains universal deficits resulting in a high frequency of inmate violence the report discussed how systemic deficiencies cause excessive force by doc staff members and frequent inmate-on-inmate violence.87 these deficiencies include insufficient reporting of use of force incidents resulting in a code of silence, inadequate consequences for infractions, lack of a grievance policy for inmates, insufficient supervision of inmates and staff members, lack of professionalism, inadequate training 74 id. 75 id. 76 id. at 11 n.15 (citation omitted). 77 id. (citation omitted). 78 id. (citation omitted). 79 samuels, bharara, powell, & daughtry, supra note 1, at 4. 80 id. at 12. 81 id. at 17; the report described one of the frequent times when force was used as punishment or retaliation. in june 2012, two correctional officers beat inmate g in an act of retribution for the mistaken impression that inmate g had “snitched” on one of the officers for another use of force incident. inmate g was attempting to get some water from the pantry area when the officers threw him to the ground and repeatedly punched, kicked and stomped him in the head, causing him serious injuries and a lost tooth. officers again assaulted inmate g in an attempt to get him to write a false report regarding the incident. this is one of many stories in the report describing the frequent use of force as a means to punish or seek retribution against adolescent inmates. id. at 15. 82 id. at 19. 83 id. at 20. 84 id. at 9. 85 id. at 10. 86 id. 87 id. at 20. 2015 columbia journal of race and law 57 57 and management deficiencies.88 first, the report highlighted the insufficient reporting of use of force incidents by staff members. the doc policy on reporting use of force incidents states that all “[s]taff who employ or witness force or have been alleged to employ or witness force . . . shall prepare a written report concerning the incident based on their own observations and written independently from other staff members that were involved or alleged to have been involved in the incident.”89 despite this, there is a powerful code of silence, and staff members frequently and deliberately ignore the policy.90 because use of force incidents are under-reported, unlawful uses of force remain unknown and unimpeded. obstacles that impede use of force reporting perpetuate the code of silence.91 surveillance videos frequently go missing.92 doc staff members told doj investigators that they had lost 35 percent of incidents in the 200 samples used for the report, but gave no explanation as to why the surveillance videos could not be located.93 the report also found that doc systemically failed to conduct sufficient investigations of use of force.94 the report found this to be one of the central causes for the widespread practice of excessive force.95 use of force investigations occurring at both the facility level and the investigation division (id) are conducted inadequately.96 investigations were found to be untimely, as the average investigation time exceeded doc policy requirements.97 additionally, the criteria required to initiate an investigation is unclear.98 investigations are conducted poorly99 and contradictory statements are often reconciled with a bias in favor of the accounts of correctional officers.100 the report found that id’s review of the facility-level investigation was superficial.101 most investigations result in findings that staff members operated within doc policy despite facts to the contrary.102 in the rare times that investigations find that staff members inappropriately used force, the consequences are minimal.103 according to the consultant, in most correctional facilities, beating a restrained inmate, or using force and failing to report it, necessitates termination.104 in the rikers adolescent jails, however, significantly lesser disciplinary measures are taken, sometimes resulting in no consequences at all.105 another systemic deficiency leading to excessive force by staff members is that there is no grievance policy for staff-on-inmate assault and harassment.106 a grievance system is important because it affords inmates an opportunity to raise concerns about their treatment.107 the report also found that the insufficient supervision of inmates is a systemic deficiency leading to 88 id. at 20-45. 89 id. at 21 (citation omitted). 90 id. 91 id. at 25. 92 id. at 28. 93 id. 94 id. at 28-30. 95 id. 96 id. at 29-34. 97 id. at 34. 98 id. at 30. 99 id. at 32. 100 id. 101 id. at 35. 102 id. at 36. 103 id. 104 id. at 37. 105 id. 106 id. at 39. 107 id. 58 constitutional rights of minority youth on rikers island vol. 6.1 58 inadequate protection of inmates from harm.108 this is due to doc staff members’ inexperience in the corrections system, lack of professionalism, inadequate training and inadequate monitoring of the most difficult adolescents in the jail.109 staff members are particularly inexperienced, as the adolescent unit is the first assignment for doc staff members after initial training. 110 therefore, the most inexperienced correctional officers work in the most explosive environments with impulsive adolescents who have mental and behavioral issues.111 the report provided examples of doc staff members’ unprofessionalism. doc staff members forced inmates to walk down the hallway undressed, punishment referred to as “walking down broadway.”112 staff members spat on inmates’ food, refused to feed them, and threw away their property. 113 the investigation found that use of force training was inadequate and failed to address the most problematic practices on rikers, including headshots and false reporting.114 the report noted that the inadequate supervision resulting in the insufficient protection of adolescent inmates was not due to lack of resources or staff members, as there was nearly a one-to-one inmate-to-staff ratio in 2013.115 additionally, the report focused on management issues and their relation to the inability to protect adolescent inmates against harm. it first highlighted the difficulty of implementing any reforms to improve supervision of staff members due to the lack of stability in facility management.116 lack of stability in leadership trickles down to the captains’ supervision of correctional officers, as each shift assignment involves a different captain supervising officers.117 when management fluctuates so frequently, there is little incentive to take responsibility for the jail’s problems. another management deficiency results from the disconnect between doc’s top administrators and staff members working in excessively violent jails every day.118 the consultant noted how striking the frequency of absence among administrators and head managers was. 119 the report claims that the disconnect leads to noncompliance with use of force policies. 120 as a result, over the years, prison administrators have attempted to effect multiple reforms, but they have made no thorough or effective effort to change the culture of violence on rikers.121 these management deficiencies illustrate the universal deficits in the doc system, resulting in excessive force from staff members and a high frequency of inmate violence. 3. the rikers island adolescent jails have excessive and inappropriate use of extended punitive segregation the report discussed the excessive and inappropriate prolonged use of adolescent segregation units.122 adolescent inmates in punitive segregation spend 23 hours a day in six-by-eight foot cells.123 the guards give them one hour a day for recreation in chain-linked cages and access to a shower.124 doc uses 108 id. at 40. 109 id. 110 id. 111 id. 112 id. at 41. 113 id. 114 id. at 31. 115 id. at 40. 116 id. at 41. 117 id. 118 id. at 44. 119 id. at 45. 120 id. at 44. 121 id. 122 id. at 46. 123 id. at 47. 124 id. 2015 columbia journal of race and law 59 59 punitive segregation excessively.125 the average amount of adolescent inmates in punitive segregation on any given day in 2013 was fifteen to twenty-five percent.126 five months after releasing the report, new york city officials agreed to a plan to eliminate the use of solitary confinement for inmates 21 years and younger.127 the elimination of solitary confinement for inmates under 18-years-old and 18-year-old inmates with mental illnesses was required in the settlement agreement agreed upon in june of 2015.128 officials banned the use of solitary confinement for adolescents based on the widespread agreement that punitive segregation had particularly detrimental effects on adolescents, as illustrated by kalief browder’s suicide, and increased inmate violence.129 the ban will take effect in 2016.130 4. the report’s conclusion the doj investigation concluded: there is a pattern and practice of conduct at rikers that violates the constitutional rights of adolescent inmates. in particular, we find that adolescent inmates at rikers are not adequately protected from harm, including serious physical harm from the rampant use of unnecessary and excessive force by doc staff members. in addition, adolescent inmates are not adequately protected from harm caused by violence inflicted by other inmates, including inmate-on-inmate fights. indeed, we find that a deepseated culture of violence is pervasive throughout the adolescent facilities at rikers, and doc staff members routinely utilize force not as a last resort, but instead as a means to control the adolescent population and punish disorderly or disrespectful behavior. moreover, doc relies far too heavily on punitive segregation as a disciplinary measure, placing adolescent inmates—many of whom are mentally ill—in what amounts to solitary confinement at an alarming rate and for excessive periods of time.131 the report proposed remedial recommendations and allowed the doc 49 days to comply.132 in december 2014, unsatisfied with the city’s efforts to remedy the conduct that violates adolescent inmates’ constitutional rights, the doj joined the ongoing class action, nunez,133 which alleges that the systemic pattern and practice of unnecessary force against all inmates on rikers island amounts to conduct that violates inmates’ constitutional rights.134 in june of 2015, the city of new york agreed to settle the nunez 125 id. at 46. 126 id. 127 michael winerip & michael schwirtz, rikers to ban isolation for inmates 21 and younger, n.y. times, jan. 13, 2015, http://www.nytimes.com/2015/01/14/nyregion/new-york-city-to-end-solitary-confinement-for-inmates-21-and-underat-rikers.html (last visited feb. 27, 2014). 128 consent judgment at page 44, nunez v. city of new york, no. 1:11-cv-05845-lts-jcf (s.d.n.y. july 1, 2015). 129 see winerip, supra note 131.. 130 id. 131 samuels, bharara, powell, & daughtry, supra note 1, at 3. 132 id. at 64. 133 jillian jorgensen, u.s. attorney preet bharara moves to sue city over violence at rikers island, observer, dec. 18, 2014, http://observer.com/2014/12/u-s-attorney-preet-bharara-moves-to-sue-city-over-violence-at-rikers-island/ (last visited march 22, 2016). 134 samuels, bharara, powell, & daughtry, supra note 1, at 3 n.5. 60 constitutional rights of minority youth on rikers island vol. 6.1 60 lawsuit.135 the limitations of the settlement agreement are discussed below. iii. the federal lawsuit’s ability to effectively reform the culture of violence on rikers island adolescent jails is limited by the power of coba this section outlines the limitations of the federal lawsuit. first, the outcomes of federal lawsuits brought pursuant to section 14141 and cripa, also known as institutional reform litigation, are outlined. next, the limitations of institutional reform litigation are discussed and those limitations are applied to the situation on rikers island, with a discussion of coba’s power. a. outcomes of institutional reform litigation relief in institutional reform litigation can come in the form of investigative findings letters, consent decrees, and memoranda of agreements (“moas”).136 investigative findings letters are merely advisory measures—whether or not an institution decides to implement recommendations is optional.137 the policies and procedures outlined in consent decrees and moas carry more force. they attempt to improve management and control officer conduct.138 consent decrees and moas are created through negotiations between the court and all interested parties.139 while a consent decree does not maintain the force of law, it “constitutes a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”140 consent decrees and moas involve common sets of required reforms including improving use of force directives, grievance systems, training, 141 and the appointment of an independent monitor. 142 independent monitoring bodies oversee the enforcement of consent decrees and moas, and determine if the defendant institution is in compliance. 143 independent monitors actively participate in reforms by investigating and reporting to the court and public.144 they provide support, reassurance and warnings for the defendant institution.145 consent decrees and moas usually last five years and terminate when the independent monitor determines that the institution has met the conditions outlined by the court.146 the successful enforcement of consent decrees or moa recommendations depend on effective leadership. in order to create meaningful reform in law enforcement and corrections departments, there must be not only a change in formal procedures, but also a change in culture and organizational values—something that begins from the top-down.147 135 weiser, supra note 42. 136 walker & macdonald, supra note 59, at 6. 137 id. at 17. 138 id. at 6. 139 david reynolds, the mechanics of institutional reform litigation, 8 fordham urb. l.j. 697 (1979). 140 local no. 93, int'l ass'n of firefighters v. city of cleveland, 478 u.s. 501, 518 (1986). 141 walker & macdonald, supra note 59, at 6. 142 id. at 17. 143 id.; see also eugene kim, vindicating civil rights under 42 usc § 14141: guidance from procedures in complex litigation, 29 hastings const. l.q. 767 (2002). 144 walker & macdonald, supra note 59, at 22. 145 id. at 23. 146 id. 147 see id. at 495. 2015 columbia journal of race and law 61 61 b. the nunez v. city of new york settlement agreement in october of 2015, the honorable laura taylor swain, federal district court judge, gave final approval of a settlement agreement over the nunez federal lawsuit regarding the culture of violence on rikers island.148 the settlement resulted in a federal consent decree, requiring the doc to revamp and implement numerous new practices, systems, policies and procedures in order to protect the constitutional rights of inmates with a close focus on adolescent inmates.149 the agreement will remain in effect until the court finds the city has been substantially compliant with the its terms for 24 months.150 the reform measures attempting to end the culture of violence on rikers island required by the settlement agreement include: the appointment of an independent monitor; the creation of a new use of force policy, reporting requirements and improvements in use of force incident investigations; increased staff member accountability; increased video surveillance of jails; improved tracking systems and the development of an early warning system (ews); improvements in staff member training; and a myriad of provisions particularly for adolescent inmates.151 each of these requirements is discussed further below. 1. appointment of an independent monitor the nunez settlement agreement requires new york city to fund an independent federal monitor named steve j. martin who will report to judge swain and regularly assess doc’s compliance with the conditions of the settlement.152 martin is a former correctional officer and general counsel of the texas state prison system.153 he has 40 years of professional experience in the corrections department, has served as a federal independent monitor in various prisons and state systems and as an expert consultant for the doj.154 the monitor is required to create a monitoring plan to assess doc’s compliance.155 the monitor will review all doc policies and is granted access to the jail, and non-privileged doc records and documents. 156 the monitor will be permitted to interview inmates and staff members protected by confidentiality requirements, away from other staff members (including supervisors).157 2. creation of a new use of force policy, reporting requirements and improvements in use of force incident investigations a crucial part of the settlement is its focus on revamping the use of force policy, incident reporting requirements and incident investigations. first, the doc is required to create a comprehensive use of force 148 michael schwirtz, judge approves settlement of suit on rikers island brutality, n.y. times, oct. 21, 2015, http://www.nytimes.com/2015/10/22/nyregion/judge-approves-settlement-of-suit-on-rikers-island-brutality.html (last visited march 10, 2016). 149 filing of agreement at page 1, nunez v. city of new york, no. 1:11-cv-05845-lts-jcf (s.d.n.y. june 22, 2015), https://www.justice.gov/usao-sdny/file/479956/download. 150 id. at 2. 151 id. at 2-5. 152 benjamin weiser, deal is near on far-reaching reforms at rikers, including a federal monitor, n.y. times, june 18, 2015, http://www.nytimes.com/2015/06/19/nyregion/accord-near-on-sweeping-reforms-at-rikers-jail-including-usmonitor.html (last visited march 10, 2016). 153 filing of agreement, supra note 149, at 1-2. 154 id. at 2. 155 consent judgment, supra note 128, at 55. 156 id. at 51. 157 weiser, supra note 152. 62 constitutional rights of minority youth on rikers island vol. 6.1 62 policy to be reviewed and approved by the monitor.158 the new policy must emphasize when the use of force is permissible and impermissible,159 and the duty of doc staff members to protect inmates from harm.160 the policy also requires explicit bans on blows to the head, face and areas of the body as well as bans against chokeholds and kicks.161 force is also prohibited as a means to punish, retaliate against or in response to threats or insults from inmates.162 to improve use of force reporting, doc staff members are required to write reports independently of other staff members that may have witnessed or have been involved in use of force incidents, with a prohibition against collusion.163 medical staff must report when an inmate has suffered an injury and whether the medical staff suspects it may have been caused by a use of force incident not reported.164 with the help of the monitor, the doc is required to create an anonymous reporting system enabling doc staff members to report use of force violations to a centralized reporting system.165 to address the deficiencies in use of force investigations, the doc is required to conduct “thorough, timely and objective investigations into use of force incidents.”166 from these investigations, doc staff must summarize their findings, determine whether a use of force policy was violated, and recommend remedial or disciplinary actions.167 to improve investigations concerning adolescent inmates, the settlement requires the designation of a “youth id team,” specifically for the investigation of use of force incidents involving inmates under 18 years-of-age.168 3. increased staff member accountability the doc is required to increase staff member accountability through various measures including, requirements to create a new use of force auditor position, by sending notifications to the u.s. attorney’s office, and improving staff recruitment, selection and promotion. the doc is required to “take necessary steps to impose appropriate and meaningful discipline,” and termination must be a possible consequence for a violation of the use of force policy and for failure to report use of force incidents.169 if a staff member uses force over three times within a six-month period,170 jail wardens must refer to the staff members’ use of force history to determine whether counseling is needed.171 doc, with the help of in the independent monitor, must create comprehensive and standardized disciplinary guidelines with discipline for use of force violations.172 158 weiser, supra note 152. 159 consent judgment, supra note 128, at 5. 160 weiser, supra note 152. 161 id. 162 id. 163 id. 164 weiser, supra note 152. 165 filing of agreement, supra note 149, at 4. 166 id. at 2. 167 id. 168 consent judgment, supra note 128, at 24. 169 filing of agreement, supra note 149, at 3. 170 consent judgment, supra note 128, at 31. 171 weiser, supra note 152. 172 consent judgment, supra note 128, at 25. 2015 columbia journal of race and law 63 63 the new use of force auditor position is required to report to the commissioner, analyze all use of force data and submit quarterly reports.173 the doc is required to “promptly” notify the u.s. attorney’s office if a staff member’s conduct in a use of force incident appears to be criminal.174 in order to improve staff recruitment, selection and promotion, the doc must implement various measures. first, they must create a staff recruitment program to attract qualified applicants selected through an “objective” process and subject applicants to a criminal background check.175 to improve doc staff promotions, the settlement requires the doc to review the staff member’s involvement in use of force incidents and verify there is no cause for concern in his or her qualifications for promotions to captain or higher.176 4. increased video surveillance of jails the settlement agreement also requires the installment of comprehensive video surveillance of the jails including, the implementation of a body worn camera pilot program and requirements for use of force hand-held video cameras.177 the doc is required to install a minimum of 7,800 additional wall-mounted surveillance cameras by february 2018, with a goal of obtaining complete coverage of the jails with some narrow exceptions.178 additionally, the settlement agreement requires a pilot program using 100 body worn cameras worn by doc staff members in areas of the jail that have high frequencies of violence.179 further, doc is required to develop and implement policies concerning hand-held video cameras requiring staff members to record situations such as responses to use of force incidents.180 5. improved tracking systems and the development of ews the settlement agreement requires the doc to improve tracking through the use of enhanced computerized systems and the development of ews.181 the computerized tracking systems are required to track data on use of force incidents, investigations and disciplinary actions imposed on staff members for violations.182 the development of ews is subject to approval and periodic review of the monitor,183 and is created to identify staff members in need of corrective action184 and to track use of force incidents.185 6. improvements in staff member training the doc is required to work with the monitor to develop new training programs in various areas including, use of force policies, crisis intervention and conflict resolution, probe team training, and direct supervision training. 186 the doc and monitor are also required to work together to improve the 173 jillian jorgensen, u.s. city and bharara reach settlement in federal lawsuit over rikers island, observer, june 22, 2015, http://observer.com/2015/06/city-and-bharara-reach-settlement-in-federal-lawsuit-over-rikers-island/(last visited march 23, 2016). 174 filing of agreement, supra note 149, at 4. 175 id. 176 id. 177 id. at 3. 178 consent judgment, supra note 128, at 28. 179 weiser, supra note 152. 180 filing of agreement, supra note 149, at 3-4. 181 id. 182 id. at 4. 183 id. at 3. 184 consent judgment, supra note 128, at 31. 185 id. at 12. 186 id. at 35-39. 64 constitutional rights of minority youth on rikers island vol. 6.1 64 effectiveness of existing training policies including, defensive tactics, cell extraction and investigator training. 187 additionally, all staff members working regularly with adolescent inmates are required to complete training focusing on conflict management and crisis intervention skills specific to the adolescent population as well as strategies to manage adolescent inmates with mental illnesses and suicidal behaviors.188 7. provisions for adolescent inmates there are various provisions within the settlement agreement that specifically focus on the treatment of adolescent inmates. such inmates are called “young inmates” and are defined as under the age of 19 years-old.189 among the relevant provisions are the requirements to improve the supervision of young inmates, review inmate disciplinary policies, identify an alternative housing site for adolescent inmates, and as mentioned above, a prohibition against the use of punitive segregation.190 in order to improve the supervision of young inmates, the doc must meet certain inmate-to-staff ratio requirements, perform daily inspections of young inmate housing areas, develop and implement a “direct supervision model” to prevent inmate-on-inmate conflicts by requiring frequent interactions between inmates and doc staff members.191 the settlement agreement also requires the doc to appoint an outside consultant to review the doc infraction policies.192 the consultant must make recommendations, which the doc is required to implement unless doing so would be unduly burdensome.193 finally, the agreement requires the doc, the monitor and the mayor’s office of criminal justice to make “best efforts” to remove adolescent inmates from rikers island by finding an alternative placement for such inmates.194 the new site must provide access to recreational and education services, and public transportation for adolescent inmate family members.195 the settlement agreement demands many changes on rikers island. while judge swain championed the agreement as a model for correctional departments across the country,196 creating meaningful change on rikers island is a daunting task and violence continues.197 the requirements in the settlement agreement reflect the common sets of requirements in consent decrees, such as improving use of force directives, grievance systems, training and developing ews. such measures have a history of failing to create meaningful reform. moreover, reform efforts outlined in the settlement underestimate the power of coba whose members are tasked with implementing such efforts into operational policy. c. limitations of the nunez v . ci ty o f new york institutional reform litigation and the power of coba while one should not undervalue the extent to which section 14141 or cripa brought about success and valuable institutional reform litigation, such efforts suffer from significant limitations in actually protecting the constitutional rights of inmates on rikers island. the failure of reform initiatives prior to the settlement agreement and long history of use of force lawsuits to protect inmates’ constitutional rights underscore these limitations. there are numerous systemic disincentives throughout doc operations that 187 id. at 37. 188 id. at 38. 189 filing of agreement, supra note 149, at 4. 190 id. at 5-6. 191 id. at 5. 192 id. at 6. 193 id. 194 consent judgment, supra note 128, at 46. 195 weiser, supra note 152. 196 schwirtz, supra note 148. 197 id. 2015 columbia journal of race and law 65 65 create significant impediments to reform efforts. these disincentives include the jail’s primary concern of maintaining order and the status quo, dynamics on the ground-level, civil services laws, coba, and coba’s president, norman seabrook. 1. failure of recent reform initiatives and the long history of lawsuits the report included recent initiatives198 to address the problem of inappropriate use of force and lack of accountability. in doing so it illustrated the limitations of consent decrees resulting from institutional reform litigation. these initiatives included (1) the creation of a hotline that provides inmates with the opportunity to anonymously report abuse, and (2) the addition of new management positions in adolescent facilities, such as a deputy warden for adolescents and an integrity control officer.199 the report’s findings and the persistence of the code of silence illustrate the failure of these reform efforts. in addition to the recent initiatives, there is a long history of use of force lawsuits failing to protect inmates’ constitutional rights on rikers island. the doc has been involved in six class-action lawsuits involving excessive use of force from the 1980’s until nunez.200 both nunez and each case before has settled, agreeing on limited injunctive relief and specific reforms regarding use of force policies and practices.201 these past efforts were not sustainable, and nunez alleges their demise.202 the court cannot effectively reform the culture of violence in correctional facilities on its own. while the independent monitor is meant to ensure implementation by acting as an officer of the court, even this presents limitations to actual enforcement of reforms. in order to create lasting reform, adherence from the top down–from both managers and officers–is required.203 the culture of violence perpetrated by the lowest-rank-and-file doc staff members up to the corrections commissioner frustrates consent decree and enforcement efforts. this is because the ultimate responsibility for translating a consent decree into enforced operational policy falls on the officials within the institution.204 if the internal culture does not tolerate or encourage compliance, it is unlikely that officers will carry out the letter or spirit of the directives.205 the failure of reform efforts to translate into a new internal culture resulted in recent initiatives and six classaction lawsuits against doc. 2. the primary concern of jails hinders reform efforts maintaining order and the status quo is the primary concern of jails. this hinders reform and perpetuates the culture of violence in adolescent inmate facilities. because the primary concern is maintaining order and the status quo, every situation is treated as if it may escalate and explode.206 there is an everpresent threat of violence and disorder in adolescent jails, resulting in extreme measures that harm inmates.207 guards are evaluated on their ability to control inmates and maintain order.208 therefore, progression in officers’ careers may depend on proving they are tough and able to control inmates, incentivizing excessive 198 samuels, bharara, powell, & daughtry, supra note 1, at 51. 199 id. 200 id. at 44. 201 id. 202 id. 203 see id. at 7. 204 walker & macdonald, supra note 58, at 493. 205 id. 206 id. 207 susan sturm, resolving the remedial dilemma: strategies of judicial intervention in prisons, 138 u. pa. l. rev. 805, 817 n.33 (1990). 208 id. 66 constitutional rights of minority youth on rikers island vol. 6.1 66 force.209 the costs of maintaining the status quo and disregarding consent decree orders are not as significant as the costs associated with the uncertainty of complying with such orders.210 thus, the incentive system on rikers island reinforces the status quo.211 3. disincentives on the ground a correctional officer on rikers island may have few incentives to implement nunez reforms because the net expected cost of complying with, for example, a new use of force directive, may be greater than continuing to use excessive and unnecessary force. there are many reasons an officer may use excessive force, including fear for life or of serious bodily injury, desire for revenge, failure to understand a use of force policy, or simply because it is more expedient to use force than it is to ensure cooperation.212 in these situations, and especially when an officer fears for his or her life, the potential costs of complying with consent decree orders and implementing reforms are much greater than the certainty of not complying and continuing to use excessive force.213 therefore, the settlement agreement’s requirements calling for a new comprehensive use of force policy, even one that explicitly bans certain use of force techniques214 and has disciplinary policies that call for potential termination for use of force violations,215 does not necessarily guarantee an effect in operations on the ground due to strong disincentives such as fear for life or serious bodily injury. ultimately, these requirements are just words on paper unless they are actually implemented by doc staff members. supervisors are incentivized to hide facility conditions from the courts to avoid further court intervention.216 there are few incentives to identify problems and take responsibility for fixing them and it is easier to turn a blind eye.217 the costs of managing a facility that adequately reports and holds staff members accountable are greater than never identifying problems. therefore, the measures required by the settlement, including suggestions to ensure staff members involved in use of force incidents write reports independently of other staff members,218 are unlikely to be enforced because doing so would cost more than maintaining the status quo. it is important to note that the old use of force reporting policy had a similar requirement that staff members report use of force incidents independently and such requirement was frequently ignored.219 additionally, the requirement that the doc conduct “thorough, timely and objective investigations into use of force incidents,”220 will likely have a minimal effect. such policy is similar to the old policy, which resulted in superficial, backlogged investigations.221 policies like these and many others were ignored before the settlement and are unlikely to be enforced through the consent decree. for doc staff members on the ground, complying with the settlement agreement is likely to cost more than maintaining the status quo. 4. recent promotions within the doc illustrate the disincentives during the doj investigation of the adolescent facilities on rikers island, the warden and deputy warden at the time, william clemons and turhan gumusdere respectively, were responsible for omitting 209 id. at 829. 210 id. at 830. 211 see id. at 828. 212 rachel harmon, limited leverage: federal remedies and policing reform, 32 st. louis u. pub. l. rev. 33, 33 (2012). 213 id. 214 weiser, supra note 152. 215 filing of agreement, supra note 149, at 3. 216 see sturm, supra note 199, at 900. 217 see id. at 828-830. 218 weiser, supra note 152. 219 samuels, bharara, powell, & daughtry, supra note 1, at 21 (citation omitted). 220 filing of agreement, supra note 149, at 2. 221 samuels, bharara, powell, & daughtry, supra note 1, at 34-35. 2015 columbia journal of race and law 67 67 hundreds of inmate fight records.222 in may of 2014, the commissioner, joseph ponte, promoted clemons to chief of the department and highest-ranking uniformed officer.223 the commissioner also promoted gumusdere to warden of the largest jail on rikers island.224 the report noted that both clemons and gumusdere “abdicated responsibility” for reporting violence and “turned a blind eye” to submitted falsified reports. 225 the doj recommended the demotion of both clemons and gumusdere. 226 instead, commissioner ponte, appointed by mayor de blasio,227 promoted officers who encouraged the code of silence. clemons has since retired, likely due to public outrage.228 however, commissioner ponte maintains that both clemons and gumusdere demonstrated “exemplary leadership” and were “fully committed to the department’s reform agenda.”229 therefore, the settlement agreement’s requirements, such as the attempt to increase staff member accountability by requiring jail wardens to refer to a staff member’s use of force history and determine whether counseling is needed, 230 will likely have a minimal effect since the wardens renounce reform efforts and promote the code of silence themselves. the settlement agreement also seeks to remedy this problem with the requirement that the doc review staff members’ history of use of force incidents during promotional considerations and verify there is no cause for concern in his or her qualifications for promotion.231 such determinations are ultimately made by commissioner ponte, who has already shown disregard for reform efforts. further, the settlement agreement allows commissioner ponte to determine “exceptional circumstances exist,”232 bypassing the rule and allowing the promotion regardless of a history of excessive use of force. the commissioner of corrections from 2003 to 2009, martin f. horn, admitted that commissioner ponte does not have many options to choose from when looking to promote leaders likely to enforce reforms.233 when such disregard for doc rules and management, as exhibited by commissioner ponte, is valued throughout the department, young officers learn to emulate such practices. consequently, the culture of violence and code of silence persists throughout the system. the promotion of clemons and gumusdere indicates that leadership rewards turning a blind eye to the use of excessive force by officers, underscoring the obstacles to meaningful reform. 5. disincentives from civil service laws civil service laws also have significant effects on correctional officers’ behavior, thereby hindering reform efforts. civil service laws dictate the recruiting, promoting, demoting, transferring, and terminating of public employees including correctional officers.234 most significantly, civil services laws, such as section 9117(b) of the new york city administrative code, place significant hiring restrictions on doc staff members.235 these laws make it difficult for corrections departments to hold staff members accountable by 222 editorial, the shake-up at rikers island, n.y. times, nov. 3, 2014, http://www.nytimes.com/2014/11/04/opinion/the-shake-up-at-rikers-island.html. (last visited march 22, 2016). 223 id. 224 id. 225 id. 226 id. 227 id. 228 id. 229 id. 230 weiser, supra note 152. 231 filing of agreement, supra note 149, at 4. 232 consent judgment, supra note 128, at 34. 233 michael winerip & michael schwirtz, to fix rikers, de blasio wants outside help at jail agency, n.y. times, sept. 23, 2014, http://www.nytimes.com/2014/09/24/nyregion/de-blasio-seeks-to-enlist-outside-help-in-fixingrikers.html?_r=1. 234 rachel harmon, the problem of policing, 110 mich. l. rev. 761, 796 (2012). 235 see id.; n.y.c. administrative code § 9-117(a)(b). 68 constitutional rights of minority youth on rikers island vol. 6.1 68 managing, disciplining or terminating officers.236 therefore, doc staff members, backed by civil service laws, will likely oppose fitness assessments for staff members that use excessive or unnecessary force, and will likely strongly oppose the creation of tracking systems such as ews. 6. disincentives from coba and norman seabrook unions play a significant role in the creation of the civil service laws that hinder reform efforts,237 as they have considerable influence over executives, legislators and judges.238 coba has a strong interest in the state laws that regulate civil service law and funding for correctional officers and contributed $500,000 to political campaigns in 2012, the majority of which went to legislative elections.239 for the past two decades, coba’s president, norman seabrook, has gained immense control over the doc and outmaneuvered many mayors and commissioners.240 former doc commissioner martin f. horn commented that doc wardens believed seabrook exerted more control over their careers than he did as commissioner.241 seabrook’s leadership has been instrumental in the large gains in salaries and pension benefits that correction officers have recently received.242 seabrook gained his power through relations with commissioners, high-ranking corrections leaders and most recently, mayor de blasio.243 he also exerts public influence on his radio show.244 while seabrook’s influence has greatly benefitted doc staff members, it has also helped feed the culture of violence on rikers by undermining accountability and hindering reform.245 seabrook influences the political process by exerting power over doc. seabrook prevented hundreds of inmates from attending their court dates to bar an inmate from giving testimony that would help convict a correctional officer in a brutality case.246 seabrook prevented buses from taking inmates off the island, which effectively shut down the city’s courts.247 in 1993, before he became president, seabrook and 200 doc staff members blocked off the bridge that connects rikers island to queens in a protest against contract negotiations.248 seabrook imposes significant costs on not only doc leadership and staff members for complying with reform efforts, but also on the political process and public at large. seabrook’s ability to force out the chief investigator of the doc, florence finkle—someone who began exposing and disciplining prison officials who brutalized inmates—illustrates his ability to stall reform.249 seabrook harassed finkle by unexpectedly visiting her office and criticizing her on his radio show.250 seabrook ultimately replaced her with one of his childhood friends, michael blake.251 seabrook vehemently resisted harsher disciplinary measures for doc staff members who used excessive force.252 236 see id. at 797. 237 see id. at 797-799. 238 see id. at 813. 239 see winerip & schwirtz, supra note 17, at 9. 240 id. 241 id. 242 id. 243 id. 244 see id. 245 id. 246 id. 247 id. 248 id. 249 id. 250 id. 251 id. 252 id. 2015 columbia journal of race and law 69 69 like finkle, guards have few incentives to follow reform efforts.253 the union vehemently resists high-ranking officials who attempt to implement disciplinary measures.254 if officers do follow reform efforts against the wishes of the union, they are often informally disciplined.255 seabrook gains much of his influence as a result of fear he instills in others who go against him, and this influence frustrates reform efforts.256 7. empathy does not incentivize reform: the phenomenon of black on black violence doc staff members’ lack of empathy for adolescent inmates is an interesting phenomenon, as they often come from the same neighborhoods and communities as the inmates they oversee. as mentioned in the introduction, 95 percent of the adolescent population on rikers island is black or latino.257 in 2010, two-thirds of the 800 16and 17-year-olds incarcerated in new york were black.258 the overwhelming majority of coba members, including seabrook, clemons and blake, are black.259 other black minorities from the same disenfranchised communities perpetuate the pervasive devaluing of minority youth’s lives. both the doc staff employed on rikers island and adolescents inmates come from marginalized, low-income communities of color that lack resources and opportunities. concentrated poverty and failing schools in these neighborhoods make both crime and the dangerous and difficult work of a correctional officer appealing. becoming a doc staff member only requires a high school diploma, but they benefit from job security, advantages from their union, and a medium annual income of $57,100 with top earners receiving $72,000.260 this kind of job is appealing to low-income minorities isolated in neighborhoods where opportunity is scarce. these communities are desperately trying to live out the american dream and make due with the resources they have. some end up on rikers island because they are charged with a crime, others end up there because of the benefits of holding such a difficult and dangerous job. seabrook grew up in a low-income family of eight children in the bronx.261 much like the adolescent inmates on rikers island, seabrook was a troubled youth and was committed to a juvenile center.262 despite this fact, seabrook advocates for doc staff members at the expense of adolescent inmates.263 he expresses no empathy towards the adolescent population that is markedly similar to the young man he was growing up.264 one may think that the commonality of backgrounds would provide doc staff members with the ability to recognize the humanity in adolescent inmates on rikers island. commonalities among guards and inmates that could potentially result in empathy are overshadowed by black-on-black violence. thus, empathy does not act as an incentive for reform. iv. in order to protect the constitutional rights of adolescent inmates on rikers island, ny penal law section 30.00 and section 9-117(b) of the new york city administrative code must be amended 253 winerip & schwirtz, supra note 17. 254 id. 255 id. 256 id. 257 o’donohue, supra note 18, at 1. 258 id. at 6. 259 winerip & schwirtz, supra note 17. 260 allen ury, 5 reasons to become a correctional officer, everest, oct. 11, 2011, http://news.everest.edu/post/2011/10/5reasons-to-become-a-correctional-officer/#.vngaw5odgkp (last visited dec. 21, 2015). 261 winerip & schwirtz, supra note 17. 262 id. 263 id. 264 id. 70 constitutional rights of minority youth on rikers island vol. 6.1 70 this section proposes that protecting the constitutional rights of adolescent inmates on rikers island’s depends on statutory amendments within ny penal law sec. 30.00 and sec. 9-117(b) of the new york city administrative code. ny penal law sec. 30.00 sets the age of criminal responsibility at 16 years. sec. 9-117(b) of the new york city administrative code establishes that only uniformed force members are eligible for promotion within doc. first, this section advocates for the amendment of ny penal law sec. 30.00 and discusses reasons for doing so, including the widespread recognition of differences between adults and juveniles. next, this section addresses recent proposals to amend the law, and the counterarguments. then, this section discusses sec. 9-117(b) of the administrative code, the problems brought about by the law and mayor de blasio’s proposal to amend the law, and various counterarguments. finally, this section outlines additional recommendations for improving the morale of doc correctional officers. a. amend new york penal law section 30.00 new york penal law section 30.00 establishes the minimum age at which someone can be prosecuted for an offense in criminal court, or the age of criminal responsibility.265 it states that any person under the age of 16 who has allegedly engaged in conduct that would constitute a criminal offense is permitted to use infancy as a defense and adjudicate the proceedings for such offense in family court.266 sec. 30.00 has various exceptions for the use of the infancy defense. for example, 13to 15-year-olds are criminally responsible for second-degree murder.267 fourteen and fifteenyear-olds are criminally responsible for first-degree kidnapping, arson, assault, manslaughter, rape, criminal sexual acts, aggravated sexual abuse, burglary and robbery. 268 fourteen and 15-year-olds are also criminally responsible for second-degree burglary, arson, robbery, and for possessing machine guns on school grounds.269 ny penal law sec. 30.00(1) should be amended to raise the age of criminal responsibility from 16 to 18. this would effectively remove adolescent inmates from rikers island and place them under the jurisdiction of the family court, as “juvenile delinquents.”270 as a result, the family court would oversee their rehabilitation, precluding doc staff from exacting violence against them. family court emphasizes rehabilitation as opposed to punishment.271 this focus is reflected in the dispositional placements available to youth adjudicated in family court, including close-to-home placements, which are similar to group homes within adolescents’ communities,272 and the office of children and family services placements.273 these facilities are designed for adolescents and are staffed by people who are trained to work with adolescents and understand their development and behavior.274 these settings are clearly more appropriate for 16and 17-year-olds than the jails and prisons designed for adult offenders and staffed by doc staff members. there is widespread recognition of the differences between youth and adult offenders, and the 265 mckinney’s penal law, n.y. penal law § 30.00(1) (2007). 266 id. at § 30.00(3). 267 id. at § 30.00(2). 268 id. 269 id. 270 see id. 271 in the matter of meleick h., 170 misc. 2d 230, 236 (fam. ct. 1996). 272 new york state office of children and family services, close to home initiative, http://ocfs.ny.gov/main/rehab/close_to_home/ (last visited feb. 12, 2016). 273 new york state office of children and family services, division of juvenile justice and opportunities for youth, http://ocfs.ny.gov/main/rehab/ (last visited feb. 12, 2016). 274 see id. 2015 columbia journal of race and law 71 71 necessity for different treatment that satisfactorily corresponds to the needs of youth.275 new york and north carolina are the only two states that have failed to fully recognize such a distinction.276 because of this, adolescent youth on rikers island are suffering. they are subject to a multitude of abuses, usually in response to conduct that is typical adolescent behavior. further, as mentioned above, over 75% of youth on rikers island have not been convicted of a crime.277 therefore, even the retributive theory, often used to justify punishment, cannot justify the culture of violence adolescent inmates experience on rikers island. the widespread recognition of the differences between adolescents and adults is reflected in a long line of supreme court precedent.278 in 2005, roper v. simmons held that the imposition of the death penalty on a 17-year-old juvenile offender violated the eighth amendment.279 the court reasoned that juveniles are “categorically less culpable than the average criminal” and outlined the differences between juveniles and adults contributing to the diminished culpability of juveniles.280 the court looked to the rest of the world and the national consensus rejecting the juvenile death penalty to inform its decision.281 the rationale behind the decision was based on the differences between adolescents and adults, contributing to the diminished culpability of adolescents. the court discussed adolescents’ lack of maturity and under-developed sense of responsibility.282 the court noted that recognizing these differences justified affording fewer rights to adolescents, such as the right to vote, serve on juries, or to marry without parental consent.283 the court also discussed how adolescents are more vulnerable to outside pressures including peer pressure.284 additionally, the court noted that the character of juveniles is not well-formed and their personality traits are less fixed, which also contributes to their diminished culpability.285 the court stated that for these reasons, juveniles are also less susceptible to deterrence.286 these differences justified treating adolescents and adults differently, and also barring the death penalty for juveniles. graham v. florida, miller v. alabama, and jackson v. hobbs reaffirmed the differences between adolescents and adults outlined in roper.287 in 2010, graham held that the eighth amendment does not permit sentencing a 16-year-old juvenile offender to life without parole for a non-homicidal crime, citing roper’s reasoning.288 in 2012, it was held in miller and jackson that the eighth amendment forbids mandatory life without parole for juvenile homicide offenders.289 both cases also cited the reasoning from roper outlining the differences between adolescents and adults.290 as shown from supreme court precedent, there is widespread recognition of the differences between adolescents and adults, leading to the diminished culpability of adolescents. because of these recognized differences, the overwhelming majority of the nation does not hold 16and 17-year-olds criminally responsible. however, new york has failed to follow the national consensus and continues to 275 yaroshefsky, supra note 20, at 3. 276 id. 277 id. 278 see roper v. simmons, 543 u.s. 551 (2005); graham v. florida, 560 u.s. 48, 50 (2010); miller v. alabama, 132 s. ct. 2455 (2012); jackson v. hobbs, 132 s. ct. 548 (2011). 279 roper, 543 u.s. at 553. 280 id. at 552. 281 id. at 553-554. 282 id. at 569. 283 id. 284 id. at 601-602. 285 id. at 569. 286 id. at 553. 287 see graham v. florida, 560 u.s. 48, 50 (2010); miller v. alabama, 132 s. ct. 2455 (2012); jackson v. hobbs, 132 s. ct. 548 (2011); roper v. simmons, 543 u.s. 551 (2005). 288 graham, 560 u.s. at 50. 289 miller, 132 s. ct. at 2455. 290 id. at 2458. 72 constitutional rights of minority youth on rikers island vol. 6.1 72 subject adolescent inmates on rikers island to a culture of violence and conduct that violates their constitutional rights. despite the fact that new york is virtually alone in setting the age of 16 as the cut-off age for criminal responsibility, recent reforms have indicated recognition on the part of the city of the differences between adolescents and adults, leading to differential treatment. for example, rikers island houses their adolescent population in different jails than the adults.291 the separation of adolescents from adults indicates recognition of the differences between adolescent inmates and adult inmates and a need for their separation. new york also has recognized the need for a different treatment for adolescent and adult inmates, which is illustrated through the policy change eliminating solitary confinement for persons under the age of 21.292 the extremely harmful effects that solitary confinement has on adolescents prompted this policy change.293 for example, adolescent inmates who have been subjected to solitary confinement suffer from severe psychological impacts, including suicidal ideations and other self-injurious acts, anxiety and trouble sleeping, post-traumatic stress disorder, irrepressible rage and psychosis (such as hallucination).294 such resulting behaviors are caused by standard adolescent neurodevelopment. 295 the practice of solitary confinement has been found to increase aggressive, impulsive, violent and disobedient behavior in adolescents.296 eliminating solitary confinement for inmates up to the age of 21 reflects new york’s recognition of the differences between adolescents and adults. this recognition should extend to raising the age of criminal responsibility. the settlement requires the doc and the mayor’s office of criminal justice make best efforts to remove adolescent inmates from rikers island.297 however, this requirement does not extend to removing adolescents from the jurisdiction of criminal court. while this reform recommendation and the specific focus on adolescents in many provisions of the settlement agreement clearly indicate recognition of the differences between adolescent and adult inmates and a need for differential treatment, there is no justification provided for why such adolescents should still continue to be held criminally responsible like adults. removing adolescents from rikers island while still holding them criminally responsible will not end the deep-seated culture of violence and code of silence perpetrated by doc staff members in other contexts. due to the institutional culture engendered by doc staff members—who are supported by the powerful incentives to maintain the status quo outlined above— adolescent inmates are likely, even if removed from rikers island, to still be subjected to patterns and practices of unconstitutional conduct. therefore, in order to protect adolescent inmates’ constitutional rights, the age of criminal responsibility should be amended so that such inmates are not subjected to the oversight and culture of violence of doc staff members. 1. proposals to amend new york penal law section 30.00 new york’s governor, andrew cuomo, recognizes the dire need to raise the age of criminal responsibility to 18-years-old.298 governor cuomo created the raise the age commission and has proposed that the legislature amend ny penal law sec. 30.00. the plan proposes the gradual increase of the age of 291 see samuels, bharara, powell, & daughtry, supra note 1, at 5. 292 jake pearson, nyc jail commissioner: no solitary confinement for 16-year-old, 17-year-old inmates by the end of the year, huffington post, sep. 29, 2014, http://www.huffingtonpost.com/2014/09/29/nyc-teen-solitary_n_5904116.html (last visited feb. 27, 2014). 293 id. 294 yaroshefsky, supra note 20, at 20. 295 id. 296 id. at 21. 297 consent judgment, supra note 128, at 46. 298 democrat & chronicle: keep teens out of ny prisons, raisetheage, http://raisetheageny.com/newitem/democratchronicle-keep-teens-ny-prisons (last visited feb. 27, 2014). 2015 columbia journal of race and law 73 73 criminal responsibility.299 in 2017, the age of criminal responsibility would be 17-years-old, and would go up to 18-years-old by 2018.300 such juvenile offenders would be housed in state and privately-operated youth facilities.301 the plan would still allow for the criminal conviction of the most serious crimes, such as murder and other violent offenses, per judicial discretion.302 governor cuomo’s plan aims to decrease adolescent recidivism rates vis-a-vis reduced prison sentences and more court intervention for youth.303 another proposal in favor of supporting raising the age of criminal responsibility is the record expungement designed to enhance employment act (redeem act), sponsored by senator rand paul. the redeem act, among many other things, incentivizes states to raise the age of criminal responsibility to 18 years by giving preference for grant applications to states that have established 18 years as the age of criminal responsibility.304 recent proposals brought by the raise the age commission and redeem act indicate the widespread recognition of a need to amend new york penal law sec. 30.00. 2. opponents of the amendment of new york penal law sec. 30.00 one of the main arguments against amending sec. 30.00 is rooted in the public safety rationale and the “tough on crime” approach. while this note argues that the differences between adolescents and adults justify differential treatment, one could argue that such differences are aggravating factors, making adolescents more dangerous than adults. adolescents’ lack of maturity and under-developed sense of responsibility make them more prone to violence.305 likewise, they are more prone to violence because adolescents are more vulnerable to outside pressures, and the character of their personality traits are less fixed. 306 these reasons could lead one to think that adolescents should be subject to the harshest punishments for the sake of deterrence. however, the high recidivism rates resulting from charging 16and 17-year-olds as adults refutes these arguments. as mentioned, the recidivism rates of adolescents from rikers island are high.307 the average number of previous admissions of youth to the department of corrections (doc) in 2013 was 1.02.308 these statistics indicate that being “tough on crime” does not increase public safety. further, studies from states like connecticut and illinois found that juvenile recidivism rates decreased when adolescents were given options other than the jails and prisons designed for adults.309 it is worth noting that coba is likely to be vehemently opposed to any proposals to raise the age of criminal responsibility. such initiatives would remove around 800 adolescent inmates currently under doc oversight310 and would significantly affect employment positions coba is likely to rigorously protect. additionally, raising the age will not solve the underlying issue of the culture of violence and lack of accountability on rikers island. raising the age would only protect adolescent inmates and the constitutional 299 see joseph spector, ny prefers detention centers over prison for youth, ithacajournal, jan. 19, 2014, http://www.ithacajournal.com/story/news/public-safety/2015/01/19/ny-juvenile-detention-facilities/22012743/ (last visited feb. 27, 2014). 300 id. 301 id. 302 id. 303 id. 304 see the redeem act, corybooker.senate.gov, http://www.booker.senate.gov/?p=general&id=33 (last visited feb. 27, 2014). 305 id. 306 id. 307 samuels, bharara, powell, & daughtry, supra note 1, at 6. 308 id. 309 see spector, supra note 287. 310 id. 74 constitutional rights of minority youth on rikers island vol. 6.1 74 violations of adult inmates’ rights would persist. as such, this note proposes the amendment of sec. 9117(b) of the administrative code to end the pattern and practice of conduct that violates the constitutional rights of all inmates on rikers island. b. amend section 9-117(b) of the new york city administrative code section 9-117(a) of the new york city administrative code outlines the composition of the uniformed force of the doc and establishes that doc staff members are limited to correctional officers, captains, assistant deputy wardens, deputy wardens and wardens. 311 section 9-117(b) states that the composition of the doc may only be altered by the creation of new positions within the doc, which may only be filled by the promotion of doc staff members.312 this provision prohibits the appointment of any person from outside the doc to any position therein.313 therefore, all uniformed officers within doc started as correctional officers and spent years within the doc moving their way up the hierarchy.314 section 9-117(b) creates numerous problems for the enforcement of reform initiatives. all doc staff members have operated within the culture of violence present on rikers island, as allegations of brutality and corruption along the chain of command on rikers island have persisted for decades.315 therefore, it is challenging to find candidates for promotion that have not been tainted by the culture of violence and code of silence. this dilemma is illustrated by the promotions of clemons and gumusdere.316 therefore, section 9-117(b) creates a significant obstacle for meaningful reform on rikers island. in order to avoid this obstacle, section 9-117(b) should be amended to allow for the appointment of uniformed officers from outside of the doc. this will allow new people who have not spent years within the culture of violence to occupy leadership positions and implement meaningful reform. mayor de blasio has proposed amending section 9-117(b) to allow for flexibility in promotion of leadership in order to effectuate significant and lasting change.317 however, he faces rigorous opposition from labor unions he has normally favored.318 in addition to the doc, the amendment would affect the fire and police departments, which comprise a workforce of 350,000.319 this powerful municipal workforce can pressure city council and the legislature, upon whom the approval of amending sec. 9-117(b) depends.320 1. opponents of the amendment of section 9-117(b) of the new york city administrative code those opposed to amending sec. 9-117(b) highlight the negative impacts that changing civil service laws will have on the doc functioning. first, they argue that civil service laws like sec. 9-117(b) of the city 311 n.y.c. administrative code § 9-117(a)(b). 312 id. 313 id. 314 id. 315 michael winerip & michael schwirtz, to fix rikers, de blasio wants outside help at jail agency, n.y. times, sept. 23, 2014, http://www.nytimes.com/2014/09/24/nyregion/de-blasio-seeks-to-enlist-outside-help-in-fixingrikers.html?_r=1. 316 see id. 317 matthew chayes, de blasio bid to change civil service rules faces opposition, newsday, nov. 30, 2014, http://www.newsday.com/news/new-york/de-blasio-bid-to-change-civil-service-rules-faces-opposition-1.9667050 (last visited feb. 27, 2014). 318 id. 319 id. 320 id. 2015 columbia journal of race and law 75 75 administrative code safeguard against cronyism, inappropriate political influence and corruption.321 the laws seek to avoid the appointment, promotion or termination of employees based on their political affiliation.322 such laws also support the balance between executive and legislative branches.323 however, civil service laws like sec. 9-117(b) have the opposite effect. sec. 9-117(b) promotes cronyism by significantly limiting the amount of candidates the commissioner can promote to leadership positions,324 as illustrated by former commissioner’s comment about the difficulty commissioner ponte faces in making promotional decisions.325 actions on the part of seabrook illustrate coba’s inappropriate use of political influence and corruption, most blatantly in the instances when he shut down access to and from rikers island, and obstructed the functions of district courts.326 opponents also argue that changing sec. 9-117(b) would jeopardize doc staff members’ promotional opportunities and that doc staff members know the system better than candidates from outside.327 it is clear that allowing the appointment of persons outside of doc would create more competition for staff members within doc. however, if doc staff members are not performing their job properly, for example by failing to protect inmates’ safety and constitutional rights, such staff members do not deserve promotional opportunities. the mindset that staff members are entitled to promotions if they maintain the status quo is precisely what impedes effective reform. similarly, it is clear that doc staff members know the system well because they have worked within it for years. however, that is precisely the problem that amending sec. 9-117(b) seeks to resolve. the fact that doc staff members know the system well means that they have incentives to control the inmate population through unnecessary and excessive force, thereby obstructing any mechanisms to hold doc staff members accountable. appointing persons from outside doc would ameliorate the culture of violence and code of silence and pave the way for meaningful reform. 2. improving the morale of doc staff members as this note illustrates, the morale of doc staff members is deeply troubled, and doc staff members are not given the proper resources to improve their morale.328 we cannot hold doc staff members accountable for the safety of inmates without providing them with the proper resources. in order to really effectuate meaningful reform the treatment of correctional officers must also be addressed. the goal of the amendment of sec. 9-117(b) is to allow for flexibility in the promotion of high-ranking doc leadership to improve the morale of doc staff members and eliminate the pattern and practice of conduct that violates adolescent inmates’ constitutional rights. other initiatives can improve the morale of doc staff members and contribute to the elimination of doc staff members’ misconduct. correctional officers in the doc need mental health services.329 a study done by a psychologist in 2013 found that 31 percent of correctional officers suffer from posttraumatic stress disorder (ptsd) at a rate 321 jonathan fineman, cronyism corruption and political intrigue: a new approach for old problems in public sector employment law, 8 charleston l. rev. 51, 54 (2013). 322 id. 323 id. 324 chayes, supra note 307. 325 see winerip & schwirtz, supra note 233. 326 winerip & schwirtz, supra note 17. 327 chayes, supra note 307. 328 see oscar lopez, prison officers need help, but they won’t ask for it, newsweek.com, may 27, 2014, http://www.newsweek.com/2014/06/06/prison-officers-need-help-they-wont-ask-it-252439.html (last visited feb. 27, 2014). 329 id. 76 constitutional rights of minority youth on rikers island vol. 6.1 76 similar to veterans returning from war.330 additionally, 17 percent of correctional officers in the study suffered from depression in conjunction with ptsd.331 the study also found that correctional officers suffering from ptsd used alcohol more frequently.332 correctional officers are 39 percent more likely to commit suicide than all other professions combined.333 correctional officers are more likely to experience high-blood pressure, ulcers and heart attacks, contributing to a reduced life expectancy.334 correctional officers are also more likely to get a divorce than the general population.335 it is likely that the incredibly stressful environment correctional officers work in, coupled with inadequate mental health support, serve as contributing factors that explain why correctional officers violate the inmates’ constitutional rights through excessive and unnecessary force.336 while this note focuses on protecting adolescent inmates’ rights, it is important to emphasize the need to also protect correctional officers by improving their work conditions. this is a critical step in any effort to effect meaningful reform. doc staff members need training to address not only inmates’ mental health issues, but also their own mental health needs. most correctional academies provide 16-week trainings on mental health.337 in new york city, correctional officers only receive 35 hours, much of which is focused on the mental health of inmates.338 the settlement agreement provides no requirements to improve mental health services for correctional officers. unless we provide doc staff members with the resources they need, including adequate mental health support, holding them accountable will not necessarily get to the root of the problem. v. conclusion in order to end the culture of violence on rikers island, legislators should amend new york penal law sec. 30.00 so that 16and 17-year-olds are placed under the jurisdiction of the family court. legislators should also amend sec. 9-117(b) of the administrative code, which concerns promotional policies for doc staff members. while the nunez federal lawsuit and resulting settlement agreement have served as a catalyst for reform, their effect on meaningful and lasting change likely will be minimal. unless the proposed laws are amended, the patterns and practices of conduct that violate adolescent inmates’ constitutional rights on rikers island will persist. the state of new york can no longer continue to subject minority youth to unconstitutional conduct. doing so endangers public safety and puts enormous strains on the state’s financial outlook. it is an injustice to rip children from their families and hold them accountable before they have been found guilty of a crime, particularly when the nation and world at large recognize that adolescents have diminished culpability. it is an injustice to correctional officers to subject them to the working conditions on rikers island without adequate resources. it is an injustice to the shared communities of both the correctional officers and adolescent inmates to subject them to such horrific and inhumane circumstances. it is an injustice for all to allow the culture of violence to persist on the hellhole that is rikers island. 330 id. 331 id. 332 id. 333 id. 334 id. 335 id. 336 see id. 337 id. 338 id. 2015 columbia journal of race and law 119 the shrouded borderland between preemption and discrimination: a framework for the analysis of city ordinances that require proof of citizenship or legal residency as a condition to rent a dwelling place carlo e. zayas morales* in the absence of a comprehensive reform of the federal immigration system, numerous cities, counties, and local governments have passed various local laws and ordinances aimed at addressing the externalities of a growing influx of undocumented immigrants. recently, there has been a proliferation of local ordinances that establish licensing schemes intended to prohibit a landlord from leasing his property to individuals who lack proof of citizenship or legal immigration status. three federal circuit courts have addressed potential preemption issues that arise from such ordinances. due to the lack of clarity in the u.s. supreme court’s preemption jurisprudence within the context of immigration law, the three circuits have split over the validity of these local efforts to deny undocumented immigrants the right to basic housing. while one of the federal circuit courts examined in this note has found such ordinances to not be preempted by federal immigration law, the other two courts to consider the issue have reached the opposite conclusion. in so doing, each federal circuit court decision has relied on the ambiguities of the doctrine of preemption to advance or hinder local laws that discriminate against undocumented foreigners. in light of this background, this note analyzes the discriminatory implications of such local immigration laws. more importantly, this note proposes an analytical framework that will offer a unified, non-discriminatory federal answer concerning the authority of state and local governments to adopt laws that encumber undocumented immigrants’ rights to housing. i. introduction............................................................................................. 120 ii. the preemption doctrine and state or local ordinances regulating immigration...................................................................122 a. general principles concerning the doctrine of preemption.......... 122 b. the doctrine of preemption in the context of immigration law.................................................................................................... 125 1. general principles.......................................................................126 2. arizona v. u.s..............................................................................129 iii. differing views concerning the preemption of city housing ordinances: examining the eighth, fifth and third circuit court opinions .........................................................................................132 a. a trend towards the localization of immigration in the housing 120 the shrouded borderland between preemption and discrimination vol. 5.2 context.............................................................................................. 132 b. keller v. city of fremont................................................................... 133 c. villas at parkside partners v. city of framers branch......................136 d. lozano v. city of hazleton............................................................... 138 iv. a framework for potential reconciliation..................................... 139 a. preemption as discrimination......................................................... 139 1. the use of race-neutral laws and legal terminology as a proxy for discrimination...................................................... 139 2. the validation or rejection of discrimination through a legal discourse of preemption............................................140 b. a doctrinal and non-discriminatory approach............................. 141 1. express preemption analysis.............................................. 141 2. field preemption analysis................................................... 141 3. conflict preemption analysis.............................................. 143 v. conclusion................................................................................................ 144 i. introduction from hines v. davidowitz1 to chamber of commerce v. whiting2 to arizona v. u.s,3 the federal supreme court has alternated between requiring express and implicit modes of congressional preemption when examining the validity of state statutes and local ordinances that encroach upon the field of immigration law. with very few clear demarcations, such as undocumented immigrant4 registration schemes, the imposition of * litigation associate, pietrantoni, méndez & álvarez llc. ll.m., 2014, columbia law school; j.d., 2010, university of puerto rico law school; b.a., 2007, university of puerto rico. the author would like to thank the editors and staff of the columbia journal of race & law for their valuable edits, suggestions and critical feedback. 1 hines v. davidowitz, 312 u.s. 52 (1941). 2 chamber of commerce v. whiting, 131 s. ct. 1968 (2011). 3 arizona v. u.s., 132 s. ct. 2492 (2012). 4 throughout this note we will abstain from referring to undocumented immigrants or non-citizens as “aliens”. this is based on our understanding that immigration scholarship, legislation and jurisprudence imprudently rely on the term “alien” when referring to immigrants. see kevin johnson, “aliens” and the u.s. immigration laws: the social and legal construction of nonpersons, 28 u. miami inter-am. l. rev. 263, 264 (1997). this term is a social and legal construction that institutionalizes the immigrant as an “outsider of the national community.” id. as such, it rationalizes and legitimizes discrimination, by justifying a social, legal and political subordination of foreigners, and by employing alienage as a proxy for race. id. at 269. from a social vantage point, “[e]ven if they have lived in this country for many years, have had children here, and work and have deep community ties in the united states, noncitizens remain aliens, an institutionalized “other,” different and apart from ‘us’.” id. at 264. as such, the term strengthens “nativist 2015 columbia journal of race and law 121 civil or criminal penalties against the unauthorized employment of non-citizens, and the mandatory consultation of federal immigration sources, the doctrine of preemption in the immigration context is in a condition of unending flux, leaving the state and local political actors in a position of doctrinal uncertainty. the contours of the doctrine remain muddled even after the court’s most recent pronouncement addressing this subject in arizona v. u.s. there, the court seemed to suggest that removal procedures constitute federally preempted legislative subjects, but did not provide any clarity as to the actual extent of federal preemption in the immigration context. against the backdrop of this legal grey area, numerous cities and municipalities across the united states have undertaken efforts to curtail the effects of undocumented immigration and in light of the federal government’s failure to legislate comprehensive immigration reform. this note looks at the recent proliferation of local ordinances that establish licensing schemes aimed at prohibiting a landlord from leasing his property to individuals who lack proof of citizenship or legal immigration status.5 this new trend in local governance has initiated a new chapter in the enactment of legal structures that discriminate against foreigners and has contributed to a heated debate concerning the enactment of local laws and ordinances that venture into federally preempted legal fields. three federal circuit courts have addressed this growing problem by examining different city ordinances that prohibit a person from renting a house without first obtaining an occupancy license conditioned upon the occupant's citizenship or documented immigration status.6 if an individual does not comply with these requirements, criminal sanctions potentially follow. the first court to examine this issue was the eighth circuit in keller v. city of fremont.7 in said opinion, the eighth circuit held that federal immigration laws— specifically, the immigration reform and control act of 19868—and regulations did not preempt a city sentiments” which stigmatize the immigrant as someone “who does not belong” or is “too different” to be part of the american polity. id. at 265. the use of the term “alien” also has profound legal and political consequences. concretely, the word entails a bifurcation of rights amongst citizens and foreigners, whereby the latter have less constitutional and legal guarantees in comparison to the former. id., at 264. moreover, it also forecloses the immigrant’s access to the political and electoral sphere, by prohibiting the immigrant to vote or run for office. id. it also justifies unequal treatment between citizens and foreigners, legitimizing the deportation of immigrants when they have committed certain crimes, but not enforcing such a punishment against citizens who engage in the same conduct, for obvious reasons. id. at 270-71. finally, the term “alien” is pejorative in nature. popular culture has informed its content with rich imagery that synonymizes the word with terms such as “stranger, intruder, interloper, outsider, and barbarian, all terms that suggest the need for harsh treatment and self-preservation.” id. at 270-71. “in effect, the term alien serves to dehumanize persons.” id. members of the federal supreme court have affirmed this conclusion. particularly, justice sonia sotomayor, when questioned about her practice of using the term “undocumented immigrants” instead of “illegal alien,” explained that the latter leads people to “paint those individuals as something less than worthy human beings.” sotomayor: labeling illegal immigrants criminals is insulting, cbs-dc, http://washington.cbslocal.com/2014/02/04/sotomayor-labeling-illegal-immigrants-criminals-is-insulting/ (last visited feb. 24, 2015). 5 y. c. garcia, g. ortiz, & v. neave, where are the courts drawing the line? the contours of preemption and other constitutional bases for the enjoinment of modern state-propounded immigration-related statutes and ordinances, 37 t. marshall l. rev. 81, 96 (2011) (noting that farmers branch, texas; hazleton, pennsylvania; fremont, nebraska; escondido, california; valley park, missouri; and cherokee county, georgia have enacted housing ordinances designed to prevent undocumented immigrants from renting or living within their borders.); rigel c. oliveri, between a rock and a hard place: landlords, latinos, anti-illegal immigrant ordinances, and housing discrimination, 62 vand. l. rev. 55, 60 (2009) (indicating that 105 localities in twenty-nine states have enacted laws of this nature.) 6 see lozano v. city of hazleton, 724 f.3d 297 (3d cir. 2013) (cert. denied, city of hazleton v. lozano, pa. v. lozano, 134 s. ct. 1491 (2014)); villas at parkside partners v. city of farmers branch, 726 f.3d 524 (5th cir. july 22, 2013) (cert. denied, city of farmers branch, texas v. villas at parkside partners, 134 s. ct. 1491 (2014)); keller v. city of fremont, 719 f.3d 931 (8th cir. 2013) (cert. denied, keller v. city of fremont, nebraska, 134 s. ct. 2140 (2014)). 7 keller v. city of freemont, 719 f.3d 931 (8th cir. 2013). 8 pub. l. no. 99-603, 100 stat. (codified as enacted in scattered sections of 8 u.s.c. [hereinafter "irca" or "the act"]). 122 the shrouded borderland between preemption and discrimination vol. 5.2 ordinance that made it unlawful for an undocumented immigrant to rent a property without possessing an occupancy license, which is only granted to u.s. citizens or documented immigrants.9 the court arrived at its conclusion after examining basic principles of the federal preemption doctrine, as well as the latest pronouncements of the u.s. supreme court in arizona v. united states,10 an opinion that addressed the federal preemption of certain sections of an arizona law, commonly referred to as s.b. 1070, which affected undocumented immigrants. shortly after the eighth circuit issued its opinion, the fifth and third circuits took an opposite approach, holding city ordinances similar in nature to the one examined in keller preempted by federal immigration law.11 these opinions also analyzed the scope and implications of arizona v. united states for new state and city laws aimed at discriminating against undocumented immigrants through criminalizing efforts that affect their basic human needs, such as housing and employment. part i of this note will survey the u.s. supreme court’s jurisprudence regarding preemption, extracting general principles about the doctrine. within this section, this note will examine these general principles in the context of immigration law. the basis of this note’s analysis will be the u.s. supreme court’s decision in arizona v. united states, a case that holds significant implications for the demarcation of the boundaries between permissible state regulations of undocumented immigrant issues affecting their communities and the constitutional authority of congress to regulate immigration matters. part ii of this note will then examine the three circuit court opinions that have analyzed the specific problem of city ordinances that prohibit undocumented immigrants from renting a dwelling place. the examination of these decisions will focus on the similarities and differences between the reasoning employed by the federal circuit courts in their vertical relationship with the u.s. supreme court’s pronouncements in arizona v. u.s. and previous preemption case law, as well as their horizontal relationship with the other two circuit court opinions. finally, part iii of this note will propose an analytical framework that will offer a unified federal answer concerning the authority of state and local governments to adopt laws that encumber undocumented immigrants’ rights to housing. this task will be approached from a doctrinal vantage point. accordingly, this note proffers a solution limited to the specific context of the field of immigration law by focusing on the principles of preemption grounded in the u.s. constitution’s supremacy clause case law. ii. the preemption doctrine and state or local ordinances regulating immigration in order to understand if federal immigration legislation preempts local housing ordinances impeding undocumented immigrants from renting a house, it is imperative to understand the basic principles embodied by the doctrine of preemption as applied and developed in the immigration field. this part will offer a general explanation of these basic principles, followed by a more specific description of how they have been applied by the u.s. supreme court in the context of local ordinances impinging upon the field of immigration law. this part’s doctrinal analysis will finish with the supreme court’s most recent expression on this subject: arizona v. u.s. a. general principles concerning the doctrine of preemption article vi of the federal constitution establishes that the “constitution and the laws of the united states which shall be made in pursuance thereof; and all treaties made, or which shall be made under the 9 keller, 719 f.3d at 938. 10 arizona, 132 s. ct. 2492. 11 see supra note 5. 2015 columbia journal of race and law 123 authority of the united states, shall be the supreme law of the land.”12 this constitutional provision, better known in legal scholarship as the supremacy clause, provides the basis for the doctrine of preemption. in general terms, the doctrine mandates that a state law or regulation—despite being a valid exercise of a sovereign state’s legislative competence—must give way to federal law when it interferes with, or is contrary to, federal law.13 although the general notion holds that federal law controls over state law in the event of a conflict between the two,14 preemption doctrine remains a murky and confusing field of american constitutional law due to the supreme court’s failure to articulate a coherent framework for determining when federal law and state law conflict.15 the supreme court itself has acknowledged that its pronouncements in the field of preemption are embroiled in a certain degree of uncertainty. by its own admission, the court’s precedential approach to the doctrine of preemption does not provide “an infallible constitutional test or an exclusive constitutional yardstick. in the final analysis, there can be no one crystal clear distinctly marked formula.”16 despite this apparent doctrinal unintelligibility, the u.s. supreme court has provided the basic contours of an analytical framework to assist lower courts in the task of determining if a state law has been federally preempted. the starting point of its analysis rests in the settled understanding that “[c]ongressional purpose is the ‘ultimate touchstone’ of [the court’s] inquiry.”17 moreover, federalism principles have led the court to establish a presumption that in a field traditionally occupied by the states, their historic police powers are not to be understood as superseded by federal legislation unless congress’s purpose is clear and manifest.18 such a clear and manifest intent, in turn, can be demonstrated in one of two ways: expressly or impliedly.19 congress expressly manifests its preemptive intention with respect to a federal statute when it utilizes express statutory language to articulate its purpose of trumping any state legislative action that impinges on the field or area addressed by the proposed legislation. 20 absent an express statutory provision indicating 12 u.s. const. art. vi, cl. 2. 13 csx transp., inc. v. easterwood, 507 u.s. 658, 663 (1993); grade v. nat’l. solid waste mgmt. ass’n., 505 u.s. 88, 108 (1992); fid. fed. sav. & loan ass’n. v. de la cuesta, 458 u.s. 141, 152 (1982). 14 christopher r. drahozal, the supremacy clause: a reference to the united states constitution 90 (2004). 15 id. (citing s. candice hoke, preemption pathologies and civic republican virtues, 71 b.u. l. rev. 685, 687 (1991)); viet d. dinh, reassessing the law of preemption, 88 geo. l.j. 2085, 2085 (2000); jack goldsmith, statutory foreign affairs preemption, 2000 sup. ct. rev. 175, 178 (2000); martin r. scordato, federal preemption of state tort claims, 35 u.c.-david l. rev. 1, 7 (2001). 16 hines, 312 u.s. at 67. 17 lorillard tobacco co. v. reilly, 533 u.s. 525, 541 (2001) (citing cipollone v. liggett group, inc., 505 u.s. 504, 516 (1992)). see also medtronic inc. v. lohr, 518 u.s. 470, 485 (1996). 18 wyeth v. levine, 555 u.s. 555, 565 (2009). 19 grade, 505 u.s. at 98; fid. fed. sav. & loan ass’n, 458 u.s. at 152-53. a note of caution is merited. as professor erwin chemerinsky has stated, “congress’s intent, especially as to the scope of preemption, is rarely expressed or clear. therefore, although the court purports to be finding congressional intent, it often is left to make guesses about purpose based on fragments of statutory language, random statement in the legislative history, and the degree of detail of the federal regulation.” erwin chemerinsky, constitutional law: principles and policies 403 (4th ed. 2011). 20 see hillsborough cnty., fla. v. automated med. labs., inc., 471 u.s. 707, 713 (1985); jones v. rath packing co., 430 u.s. 519, 525 (1977). as expressed by professor lauren gilbert, in express preemption cases, “the court still must determine the scope of what has been preempted. in so doing, the court focuses principally ‘on the plain wording of the [express preemption] clause,’ which is deemed to contain the ‘best evidence' of congress’ pre-emptive intent.’ in express preemption cases where the wording is ambiguous, the court has also considered the ‘structure and purpose of the statute as a whole . . . as revealed not only in the text, but through [the court’s] reasoned understanding of the way in which congress intended the statute and its surrounding regulatory scheme to [operate]’.” lauren gilbert, immigrant laws, obstacle preemption and the lost legacy of mcculloch, 33 berkeley j. emp. & lab. l. 153, 159 (2012) (internal citations omitted). 124 the shrouded borderland between preemption and discrimination vol. 5.2 congress’s intent to preempt state law in a determined field, the possibility still exists that such an intention can be implied from congress’s legislative exercise.21 as provided by the supreme court in grade v. nat’l. solid waste mgmt. ass’n., implied preemption can be broken down into two general categories: field preemption and conflict preemption.22 a state law will be field preempted when it regulates conduct in a field that congress intended the federal government to occupy exclusively. such an intent may be inferred from a ‘scheme of federal regulation ... so pervasive as to make reasonable the inference that congress left no room for the states to supplement it,’ or where an act of congress ‘touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject’.23 once again, the court’s standard lacks “clear criteria for courts to decide [if field preemption is present] . . . inevitably [forcing judges to] make a judgment call based on whether the interest behind the federal law will be best served by the law being exclusive in a field.”24 nevertheless, in an effort to offer guidance as to when there is field preemption, professor erwin chemerinsky has interpreted supreme court precedents to formulate four criteria that suggest that a federal statute preempts a homologous state regulation. accordingly, an individual must ask: (1) if the area in controversy is one where the federal government traditionally has played a unique role; (2) if congress has expressed an intent in the text of the law or in the legislative history to have federal law be exclusive in said area; (3) if allowing state and local regulations in the area risk interfering with comprehensive federal regulatory efforts; and (4) if there is an important traditional state or local interest served by the law.25 although providing an answer to these questions is a task fraught with difficulty, these criteria provide assistance in establishing the conditions for field preemption. the final category of the doctrine of preemption is conflict preemption. this category, which constitutes the second manifestation of the implied preemption doctrine, can itself take two different forms. in the first, conflict preemption is established when “compliance with both federal and state regulation is a physical impossibility.”26 as with previous preemption categories, conflict preemption also poses difficult application ambiguities which require judges to exercise judgment in determining if the state law has been superseded by the federal legislation in controversy. an example of an express congressional intent to preempt is found in the employee retirement income security act of 1974 (“erisa”). section 514(a) of erisa provides that the federal statute “shall supersede any and all state laws insofar as they . . . relate to any employee benefit plan” covered by the statute. 29 u.s.c. § 1144(a). the supreme court has interpreted that this language constitutes an express intent to federally preempt any analogous state legislation. see new york state conference of blue cross & blue shield plans v. travelers ins. co., 514 u.s. 645 (1995). for other examples of such express preemption, see riegel v. medtronic, inc., 552 u.s. 312 (2008) (holding that the medical devices act preempts state tort liability suits); jones v. rath packing co., 430 u.s. 519 (1977) (holding that the federal meat inspection act expressly preempted state law). despite what appears to constitute an express preemptive provision, however, thousands of judicial opinions have been written in relation to the preemptive force of section 514(a) of erisa in varying contexts. see chemerinsky, supra note 19, at 410-11. such a laborious volume of judicial interpretation evinces the difficulty of ascertaining an express congressional intent to preempt, even when congress has statutorily manifested its interest to do so. 21 thomas o. mcgarity, the preemption war: when federal bureaucracies trump local juries 51 (2008). 22 grade, 505 u.s. at 98. 23 english v. gen. elec. co., 496 u.s. 72, 79 (1990), citing rice v. santa fe elevator corp., 331 u.s. 218, 230 (1947). 24 chemerinsky, supra note 19, at 412. 25 id. at 419. 26 sprietsma v. mercury marine, a div. of brunswick corp., 537 u.s. 51, 64 (2002). 2015 columbia journal of race and law 125 concretely, conflict preemption is clearly present when the federal law and the state law are mutually exclusive, leading the federal law to trump the state law because congress has manifested an implied intent that the federal standard be exclusive in reference to state or local laws.27 the fact that state law and federal law are different, however, does not necessarily mean that the two legislative pieces cannot coexist.28 when the federal law is interpreted to only set the minimum standard—the floor, but not the ceiling—state laws can affect the federally legislated area by establishing stricter standards.29 distinguishing between congressional intent for the federal standard to be the exclusive criteria or only the minimum standard is no easy task. once more, judges will have to draw upon the potentially ambiguous text and legislative history of the statute, as well as their judicial experience, to decipher congress’s “clear and manifest” intent.30 the second form conflict preemption can take provides that a state law is superseded by federal legislation if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of congress.”31 this type of preemption, which is generally catalogued by legal scholars as obstacle preemption, calls “for a more elastic inquiry into the purposes underlying a federal statute and whether a state law interferes with the accomplishment of those purposes.”32 as every other category of preemption, this inquiry is brimming with subjectivity and lax discretion, since “[w]hat is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.”33 in light of such dangers, the supreme court has begun to curtail its use of implied categories of preemption, manifested in cases such as wyeth v. levine34 and chamber of commerce v. whiting,35 both of which demonstrate “an increasing reluctance of the court to find implied obstacle preemption.”36 b. the doctrine of preemption in the context of immigration law the federal government has traditionally been recognized as having a preeminent role and a broad power to regulate the field of immigration and the status of undocumented immigrants in the united states.37 this power has been understood to emanate from a comprehensive reading of the federal government’s express constitutional powers to establish “a uniform rule of naturalization”,38 and “[t]o regulate commerce with 27 chemerinsky, supra note 19, at 420. 28 id. 29 see, e.g., florida lime & avocado growers, inc. v. paul, 373 u.s. 132 (1983); midalantic national bank v. new jersey dept. of environmental protection, 474 u.s. 494 (1986); geier v. american honda motor co., inc., 529 u.s. 861 (2000). 30 chemerinsky, supra note 19, at 423. 31 sprietsma, 537 u.s. at 54. 32 gilbert, supra note 20, at 160. professor chemerinsky highlights that judicial discretion is a key element in the identification or not of obstacle preemption. as noted by the professor, “preemption based on state laws interfering with a federal goal turns on how the court characterizes federal purpose. if a court wants to avoid preemption, it can narrowly construe the federal objective and interpret the state goal as different from or consistent with the federal purpose. but if a court wants to find preemption, it can broadly view the federal purpose and preempt a vast array of state laws . . . .” chemerinsky, supra note 19, at 427. 33 crosby v. nat’l foreign trade council, 530 u.s. 363, 373 (2000). 34 wyeth v. levine, 129 s. ct. 1187 (2009). 35 chamber of commerce, 131 s. ct. 1968 36 gilbert, supra note 20, at 161. 37 toll v. moreno, 458 u.s. 1, 10 (1982) (citing mathews v. diaz, 426 u.s. 67, 96 (1976)); graham v. richardson, 403 u.s. 365, 377–380 (1971); takahashi v. fish & game comm’n, 334 u.s. 410, 418–420 (1948); hines v. davidowitz, 312 u.s. 52, 62–68 (1941); truax v. raich, 239 u.s. 33, 42 (1915). 38 u.s. const. art. i, § 8, cl. 4. 126 the shrouded borderland between preemption and discrimination vol. 5.2 foreign nations,” 39 and its “inherent power as sovereign to control and conduct relations with foreign powers.”40 in light of its powers, the federal government enacted the immigration reform and control act of 1986 (“irca”),41 a comprehensive framework for the regulation of the field of immigration and naturalization. notwithstanding congressional action, state governments, as sovereigns concerned with the issues brought upon them by undocumented immigration, have elaborated local laws aimed at addressing a vast array of issues regarding immigration policy.42 four fundamental supreme court decisions—hines v. davis,43 de canas v. bica,44 chamber of commerce v. whiting, and arizona v. u.s—offer a doctrinal pattern as to how federal courts have tackled any potential conflict begotten by the pervasive federal regulation of the field of immigration and homologous legislation enacted by state and local governments. 1. general principles the first of these cases is hines v. davidowitz. in hines, the supreme court analyzed an undocumented immigrant registration law enacted by the commonwealth of pennsylvania.45 the referenced statute required every . . . [undocumented immigrant] 18 years or over, with certain exceptions, to register once each year; . . . pay $1 as an annual registration fee; receive an . . . [undocumented immigrant] identification card and carry it at all times; show the card whenever it [was] demanded by any police officer . . . ; and exhibit the card as a condition precedent to registering a motor vehicle in his [or her] name or obtaining a license to operate one.46 if an undocumented immigrant failed to comply with the statute’s registration requirements, they were subject to a fine of no more than $100 or imprisonment for not more than sixty days, or both.47 if he or she failed to carry the identification card or show it when required, the punishment was a fine of not more than $10, or imprisonment for not more than ten days, or both.48 by the time the supreme court decided the case, congress had enacted the alien registration act, which imposed further obligations on undocumented immigrants fourteen years of age, such as registration and fingerprinting requirements. 49 the federal law, however, was more lenient than its pennsylvanian counterpart. pennsylvania’s law made registration mandatory and required undocumented immigrants to carry registration cards. in contrast, the federal law recognized that such requirements had occasioned political upheaval in the past50 and did not require undocumented immigrants to carry a registration card to be exhibited 39 u.s. const. art. i, § 8, cl. 3. 40 arizona, 132 s. ct. at 2498. 41 pub. l. no. 99-603, 100 stat. (codified as enacted in scattered sections of 8 u.s.c. [hereinafter “irca” or “the act”]. 42 national conference of state legislatures, 2013 immigration report, report highlights, available online at http://www.ncsl.org/research/immigration/2013-immigration-report.aspx (“in 2013, lawmakers in 45 states and the district of columbia enacted 184 laws and 253 resolutions related to immigration, for a total of 437. this is a 64 percent increase from the 267 laws and resolutions enacted in 2012”). 43 312 u.s. 52. 44 424 u.s. 351 (1976). 45 hines, 312 u.s. at 59. 46 id. 47 id. at 59-60. 48 id. at 60. 49 id. at 60. 50 id. at 70 (“opposition to laws permitting invasion of the personal liberties of law-abiding individuals, or singling out [undocumented immigrants] as particularly dangerous and undesirable groups, is deep-seated in this country. hostility to such legislation in america stems back to our colonial history”). 2015 columbia journal of race and law 127 to police or other agents. further, under the federal law, only the willful failure to register was made a criminal offense punishable with a fine of not more than $1000, imprisonment for not more than six months, or both.51 the court, after examining the legislative history of the 1940 alien registration law, as well as the long line of national attempts at federally regulating the registration of undocumented immigrants, held that congress’s 1940 act was driven by a congressional interest of establishing a standard for [undocumented immigrant] registration in a single integrated and all-embracing system in order to obtain the information deemed to be desirable in connection with [undocumented immigrants] . . . [while guaranteeing the protection of their] personal liberties . . . and [their right to be] free from the possibility of inquisitorial practices and police surveillance that might . . . affect [the united states’] international relations . . . .52 accordingly, the court declared pennsylvania’s alien registration law to be impliedly preempted53 by the federal alien registration act, because it stood “as an obstacle to the accomplishment and execution of the full purposes and objectives of congress.”54 after hines, the u.s. supreme court decided de canas v. bica.55 in de canas, the court examined a labor law of the state of california which provided that “[n]o employer [could] knowingly employ an [undocumented immigrant] who [was] not entitled to lawful residence in the united states if such employment would have [had] an adverse effect on lawful resident workers.”56 the court was called to interpret whether the immigration and nationality act, as a comprehensive scheme governing all aspects of immigration and naturalization, preempted the referenced state law.57 after stating that california had an economic and social interest in exercising its police power to protect local workers against the employment of undocumented immigrants, the federal supreme court declared that there was no clear or manifest purpose that congress sought to preempt harmonious state regulation touching on non-citizens in general, or the employment of undocumented immigrants in particular.58 according to the court, nothing in the text, legislative history, or scope of the comprehensive federal immigration scheme indicated the need for exclusivity of federal legislation in this field.59 at best, congress had only expressed “a peripheral concern with [the] employment of [undocumented immigrants]” at that point in time.60 nevertheless, after de canas, congress enacted the irca and explicitly addressed the employment of undocumented immigrants.61 as it stands today, the federal government’s comprehensive immigration scheme prohibits employers from knowingly hiring undocumented immigrants and requires every employer to verify a 51 id. at 60-61. 52 id. at 74. 53 interpretation of this phrase has been inconsistent. see, e.g., arizona, 132 s. ct. at 2502 (relying on american ins. ass’n. v. garamendi, 539 u.s. 396, 419, n. 11 (2003) and viet d. dinh’s article, reassessing the law of preemption, supra note 15, at 2107, to hold that this phrase was constitutive of field preemption and not conflict preemption); but see sprietsma v. mercury marine, 537 u.s. 51, 54 (2008) and kenneth w. starr, reflections on hines v. davidowitz: the future of obstacle preemption, 33 pepp. l. rev. 1, 3 (2005) (treating the phrase as the origin of the doctrine of obstacle preemption). 54 hines, 312 u.s. at 67-68. 55 decanas v. bica, 424 u.s. 351 (1976). 56 id. at 352. 57 id. at 353. 58 id. at 358. 59 id. at 359. 60 decanas, 424 u.s. at 360. 61 hoffman plastic compounds, inc. v. nlrb, 535 u.s. 137 (2002). 128 the shrouded borderland between preemption and discrimination vol. 5.2 prospective employee’s immigration status.62 moreover, a specific provision in the irca now expressly preempts civil fines for the employment of unauthorized workers like the one upheld in de canas.63 in a third decision published in 2011, chamber of commerce v. whiting, the u.s. supreme court revisited the issue concerning the federal preemption of state laws regulating the employment of undocumented immigrants. specifically, the court had to analyze if the legal arizona worker’s act, which required of licenses of any employer who knowingly employed an undocumented immigrant and required all employers to consult a federal electronic verification system (e-verify) to confirm that the workers they employed were authorized workers, was federally preempted.64 one of the irca provisions at issue “expressly preempt[ed] ‘any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ[ed], or recruit[ed] or refer[ed] for a fee for employment, [undocumented immigrants]’.”65 the central issue in whiting was whether the business license suspension penalty imposed by the arizona law for an employer’s intentional employment of an undocumented immigrant was a licensing law not subject to the irca’s express preemption clause, or if it was a general law engulfed by the irca’s preemptive scope. the arizona scheme required state officials to consult the federal government to confirm an employee’s immigration status when a complaint alleging that an employer knowingly hire an undocumented immigrant was brought before a state official.66 if the federal government indicated that the employee was an undocumented immigrant, the state could commence an action against the employer to suspend its business license.67 state officers could only proceed if the federal authorities had confirmed the employee’s immigration status.68 moreover, the state authorities were not authorized to ascertain the employee’s immigration status on their own.69 after examining arizona’s legal scheme, the u.s. supreme court held that the clear language of the irca’s preemption clause exempted state laws imposing civil or criminal penalties against an employer hiring undocumented immigrants, if said laws were licensing statutes or other laws similar in nature. as interpreted by the court, arizona’s licensing suspension law was not expressly preempted, since it was a licensing law clearly excluded from irca’s preemptive reach.70 the court based its decision on a textual reading of the irca’s preemption clause, relying on an analogical definition of the term “license” as defined in the federal administrative procedure act to validate arizona’s broad definition of the mentioned term.71 arizona’s definition of the term “license” included documents such as agency permits, certificates, approvals, registrations, charters, memberships, statutory 62arizona, 132 u.s. at 2504 (citing 8 u.s.c. §§ 1324a(a)(1)(a), (a)(2); 1324a(a)(1)(b), (b); 1324a(e)(4), (f)). 63 8 u.s.c. § 1324a(h)(2). note how congress exercised its power under art. i, sec. 8 of the federal constitution, and expressly preempted an area of the law of immigration that the court interpreted as capable of co-existing with homologous state immigration laws. this shows that if a court fails to appreciate that congress had a clear-cut preemptive intent, congress can always enact legislation that expressly preempts the field in controversy. this approach possibly avoids creating a federalism issue that interferes with a state’s sovereignty, in comparison to a court decision that declares a field preempted when congress did not expressly intend to do so. such an approach, however, still creates serious uniformity issues and is prone to legitimizing local violations of civil rights. 64 id. at 1973. 65 id. at 1975 (citing 8 u.s.c. § 1324a(h)(2)) (emphasis in original). 66 id. at 1976. 67 id. 68 whiting, 131 s. ct. at 1976. 69 id. 70 id. at 1981. 71 id. at 1977-81. 2015 columbia journal of race and law 129 exemptions, articles of incorporation, or others forms of permission.72 according to the court, the fact that the arizona law operated only to suspend and revoke licenses rather than grant them did not change the law’s licensing nature.73 the court also held that arizona’s law was also not impliedly preempted, since congress expressly preserved to the states the authority to impose sanctions against employers who hire undocumented immigrants through licensing laws in enacting the irca.74 finally, the court relied on a textual approach to conclude that arizona’s requirement that employers consult the federal government’s e-verify system was not precluded or circumscribed by the pertinent federal statutes.75 the precedential development of the doctrine of preemption in the field of immigration can be viewed as a trend towards the conscious disuse of implied preemptive categories. concretely, whiting seemed to limit the preemption of a state law impinging on immigration policy to those occasions when congress’s preemptive intent is clearly espoused in the pertinent federal immigration legislation. this conclusion, however, would soon be tested by a 2012 supreme court decision revisiting the subject. 2. arizona v. u.s. the supreme court’s most recent expression concerning the federal preemption of state or local government legislation impinging upon the field of immigration is found in arizona v. u.s., a facial challenge brought by the united states’ government against arizona’s support our law enforcement and safe neighborhoods act, better known as s.b. 1070.76 s.b. 1070 constituted arizona’s attempt to “discourage and deter the unlawful entry and presence of [undocumented immigrants] and economic activity by persons unlawfully present in the united states.”77 the u.s. government contended that federal law preempted four provisions of s.b. 1070.78 two of these provisions created new state offenses.79 particularly, section 3 penalized an undocumented immigrant’s failure to comply with federal non-citizen registration requirements, 80 while section 5(c) prohibited an undocumented immigrant from seeking or engaging in work in the state of arizona.81 the last two provisions challenged by the united states empowered state and local officials to arrest and investigate undocumented immigrants.82 section 6 authorized “officers to arrest without a warrant a person [they had] ‘probable cause to believe … [had] committed any public offence that [made] the person removable from the united states’.”83 the final provision, section 2(b), mandated that state and local officers who conducted a stop, detention, or arrest had to “make efforts to verify the [detainee’s] immigration status with the federal government.”84 in its decision, the u.s. supreme court held that sections 3, 5(c) and 6 of 72 id. 73 whiting, 131 s. ct. at 1979. 74 id. at 1984-85. 75 id. at 1985-86. 76 id. at 2497 77 note following ariz. rev. stat. ann. § 11-1051 (west 2012), as cited in id. 78 arizona, 132 u.s. at 2497-98. 79 id. at 2497. 80 id. (citing ariz. rev. stat. ann. § 13-1509 (west supp. 2011)). 81 id. (citing ariz. rev. stat. ann. § 13-2928(c) (west supp. 2011)). 82 id. at 2498. 83 id. at 2498 (citing ariz. rev. stat. ann. § 13-3883(a)(5) (west supp. 2011)). 84 id. at 2498 (citing ariz. rev. stat. ann. § 11-1051(b) (west supp. 2012)). 130 the shrouded borderland between preemption and discrimination vol. 5.2 s.b. 1070 were federally preempted.85 the court declined to enjoin section 2(b), however, instead giving arizona state courts the opportunity to interpret its scope in an as-applied challenge.86 section 3 of s.b. 1070 penalized an undocumented immigrant’s failure to complete or carry a noncitizen registration document.87 as a peculiar feature, the arizona law defined the proscribed conduct in reference to the irca.88 the federal supreme court analyzed the irca’s current non-citizen registration regime and held that, despite its differences from the system analyzed in hines, the scheme was comprehensive in nature and designed as a harmonious whole.89 as such, arizona’s undocumented immigrant registration statute was field preempted because it impinged upon the federal government’s carefully exercised discretion as to how and when to prosecute and penalize an undocumented immigrant who failed to register according to federal law.90 applying hines, the court held that the irca foreclosed section 3, even if the state law sought to complement or enforce additional or auxiliary immigration measures.91 the second provision examined by the court, section 5(c), made it a state misdemeanor for an undocumented immigrant to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor in arizona.92 any undocumented immigrant who violated this provision was subject to a $2,500 fine and incarceration for up to six months.93 the court began its analysis of section 5(c) by restating that after de canas, the enactment of the irca comprehensively proscribed the hiring of undocumented immigrants.94 the legislative history of the irca, however, clearly manifested a congressional intent to not criminally penalize undocumented immigrants who seek employment, because such an approach would be contrary to the federal objective of avoiding criminalization of non-citizens who risked being exploited by their employers.95 although the irca’s express preemption clause was silent as to whether a state could criminally penalize an employee, the court understood that section 5(c) was conflict preempted because it established a criminal enforcement mechanism against undocumented immigrants seeking unauthorized employment, which disrupted the congressional policy as manifested in the text, structure and history of the irca of not criminalizing such employees.96 the court then considered section 6 of s.b. 1070, which provided that a state officer, without a warrant, had the authority to arrest a person if the officer had probable cause to believe that the person had committed any public offense that would have made him removable from the united states.97 the court interpreted this provision as conferring state officers a greater discretion to arrest undocumented immigrants on the basis of removability than congress had given to trained federal immigration officers.98 the court noted that the federal decision to arrest an undocumented immigrant as a prelude to a potential removal from the united states is guided by a number of factors ordained by the federal statutory structure, and exercised carefully in light of the risks that such a decision poses to the united states’ foreign relations.99 section 6, by empowering local officers to arrest an individual in response to his or her potential removability, impinged 85 id. at 2510. 86 id. 87 id. at 2501 (citing ariz. rev. stat. ann. § 11-1509(a) (west supp. 2011)). 88 id. at 2502 (citing 8 u.s.c. §§ 1304(e), 1306(a)). 89 id. at 2502. 90 id. at 2502-03. 91 id. at 2503. 92 id. at 2502 (citing ariz. rev. stat. ann. § 13-2928(c) (west supp. 2011)). 93 id. 94 id. at 2504. 95 id. 96 id. at 2502. 97 id. at 2505 (citing ariz. rev. stat. ann. § 13-3883(a)(5) (west supp. 2011)). 98 id. at 2506. 99 id. 2015 columbia journal of race and law 131 upon a decisional subject entrusted exclusively to the federal government, in consideration of the political and economic consequences that such a decision entails in the united states’ relationship with foreign powers. accordingly, the court found section 6 to be conflict preempted because it created an obstacle to the full purposes and objectives of congress regarding the removal of an undocumented immigrant.100 finally, the court examined section 2(b) of s.b. 1070, which required state officers to make a reasonable attempt to determine the immigration status of a person they detained or arrested on some other legitimate basis, if the officer had reasonable suspicion to believe that the detainee was an undocumented immigrant.101 the immigration status of the person would be obtained by consulting the immigration and customs enforcement agency (hereinafter, “ice”).102 the court concluded that the irca did not preclude a state law that required state officers to consult ice as to the immigration status of a detained individual. 103 instead, congress explicitly encouraged communications between state officers and the federal government concerning the immigration status of an undocumented immigrant.104 hence, the court concluded that section 2(b) was not conflict preempted in this regard.105 nevertheless, those who challenged s.b. 1070 also argued that section 2(b) posed an obstacle to the federal immigration framework because state officers would be required to delay the release of some detainees for no reason other than to verify their immigration status.106 the court understood, however, that courts could construe section 2(b) in ways that avoided these concerns, by limiting its reach to only requiring state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee is released.107 considering that further state judicial interpretation was needed in order to understand what section 2(b) meant and how it would be enforced, the court abstained from holding said provision conflict preempted until an as applied challenge was presented.108 arizona represents a departure from the court’s previous doctrinal approach in the subject of federal preemption of state immigration laws, halting the turn that began in whiting towards understanding congressional preemptive intent solely by reference to the text of the irca. the emphasis placed on the presumption that state laws should not be preempted unless congress has expressed a clear and manifest intent to do so was stymied by a new configuration of the court. justices breyer, ginsburg, and sotomayor—dissenters in whiting—joined justice kennedy and chief justice roberts—author of whiting’s majority opinion—in a decision that reinstituted the court’s approach in hines, whereby implied categories of preemption are judicial vehicles that stifle local immigration policy in favor of a centralized, federal approach to immigration. the justices who had formed part of the majority opinion in whiting—scalia, thomas and alito—are now a minority arguing in favor of state sovereignty and a rejection of implied methods of preemption. whiting and arizona create a zone of ambiguity as to the court’s position in the explicit versus implied preemption spectrum, leaving only a degree of certainty as to traditional demarcations between federal and state authority in the elaboration of immigration policy. these cases retain just three demarcations developed through decades of supreme court doctrine: (1) the impossibility of a state enacting legislation that affects the 100 id. at 2507. 101 id. 102 id. 103 id. at 2508. 104 id. (citing 8 u.s.c. §§ 1357(g)(10(a); 1373(c)). 105 id. at 2508. 106 id. at 2509. 107 id. 108 id. at 2508. 132 the shrouded borderland between preemption and discrimination vol. 5.2 field of undocumented immigrant registration, provided that the federal government continues to preserve a harmonious and all-encompassing legislative scheme that addresses the subject of undocumented immigrant registration; (2) an express preemption of a state’s ability to impose civil or criminal penalties against the unauthorized employment of undocumented immigrants, unless such penalties are imposed through licensing laws similar to those examined in whiting; and, (3) the potential for co-existence between the federal immigration structure and state or local laws that mandate the consultation of federal sources (e.g. ice’s law enforcement support center or e-verify) to ascertain a non-citizen’s immigration status. arizona adds two elements which are crucial for the housing ordinances the next part of this note will examine. first, the court’s determination to find section 6 conflict preempted, and thereby foreclose any state legislation empowering state officials to conduct warrantless arrests of undocumented immigrants based solely on their potential removability, institutes a budding hines-like demarcation regarding removal procedures. pointedly, arizona hints that any state legislation that adversely encroaches upon the federal government’s discretion to arrest, prosecute, or initiate a removal procedure, will be deemed to be in conflict with the federal removal structure, which pursues particular national interests and objectives in the united states’ relationship with foreign powers. only an express legislative conferral of authority to state governments or a clear indication that congress did not seek federal exclusivity in a given removal policy will avoid preemption. in a sense, the presumption against preemption of state legislation in immigration matters has been rebutted in favor of a hines-like understanding that removal is an area within the exclusive competence of the federal government. secondly, the court’s conclusion in arizona that section 2(b) would be better addressed through an as-applied challenge that gave state courts an opportunity to interpret the scope of a state immigration law that textually seems to not encroach on the federal immigration scheme. this raises potentially serious conflictpreemption concerns in the application realm and opens the doors to greater degrees of uncertainty as to the boundaries of the preemption doctrine, since as-applied challenges of dubious state laws are varied in possibility. it is against this uncertain doctrinal backdrop that the federal circuit courts have had to address state and local laws prohibiting landlords from renting a dwelling place to an undocumented immigrant, or that require non-citizens to present proof of residency or citizenship as a condition to receive a renting license. the following part will briefly describe how these ordinances have proliferated throughout the state legislative canvas, concluding with an examination of a recent circuit split that brings to the fore the indeterminacy that plagues the doctrine of preemption within the context of immigration. iii. differing views concerning the preemption of city housing ordinances: examining the eighth, fifth and third circuit court opinions a. a trend towards the localization of immigration in the housing context in response to the federal government’s failure to reform the nation’s immigration laws in light of modern demographic developments, state and local governments have adopted laws and ordinances aimed at addressing the social, economic, and security concerns that stem from undocumented immigration. 109 according to the national conference of state legislatures, in 2013, lawmakers in forty-five states and the district of columbia enacted 184 laws and 253 resolutions related to immigration.110 these legislative efforts accounted for a sixty-four percent increase from the 267 laws and resolutions enacted in 2012.111 their content addresses a multiplicity of subjects: they create immigration enforcement schemes; define new state 109 s. karthick ramakrishnan & pratheepan gulasekaram, the importance of the political in immigration federalism, 44 ariz. st. l.j. 1431, 1432 (2012). 110 2013 immigration report national conference of state legislatures, http://www.ncsl.org/research/immigration/2013-immigration-report.aspx (jan. 20, 2014). 111 id. 2015 columbia journal of race and law 133 immigration crimes; promote english-only policies; regulate housing;112 condition unauthorized employment of undocumented immigrants; require registration of non-citizens; and regulate welfare and public health benefits available to immigrants.113 in recent years local laws concerned with the regulation of housing have surged in numbers.114 cities, counties, and municipalities such as farmers branch, texas; hazleton, pennsylvania; fremont, nebraska; escondido, california; valley park, missouri; and cherokee county, georgia, have all adopted such ordinances. 115 in general terms, the ordinances follow a pattern of creating “the offense of ‘harboring [undocumented immigrants]’ for providing housing to [non-citizens] knowingly or in reckless disregard of the fact of [their undocumented immigrant] status . . . [and further require] tenants to obtain occupancy permits upon proof of, among other things, ‘legal citizenship and/or residency’.”116 the following section will focus on three federal circuit court opinions motivated by the housing ordinances adopted by three of these cities: fremont, nebraska; farmers branch, texas; and hazleton, pennsylvania. after discussing the legal reasoning behind these decisions, this note will highlight how the doctrine of preemption, among other legal practices, may be employed to further or hinder the discriminatory implications of these ordinances. b. keller v. city of fremont the first court to examine the legal implications of the housing ordinances previously described was the eight circuit in keller v. city of fremont.117 keller dealt with a 2010 city ordinance adopted by voters in fremont, nebraska which limits hiring and providing rental housing to “illegal aliens” and “unauthorized aliens,”118 as defined in the ordinance. 119 a group of landlords, tenants, and employers, facially challenged the ordinance in federal court, on the grounds that: (1) the ordinance was unconstitutional because it violated the equal protection, due process, and commerce clauses of the united states’ constitution; (2) it was federally preempted under the irca;120 and (3) it violated various state and federal laws.121 after the lower federal court issued its decision, the parties appealed the case to the eighth circuit.122 as explained by the eighth circuit, “[t]hese provisions [made] it unlawful for any person or business entity to rent to, or permit occupancy by, ‘an illegal alien, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the united states in violation of law’.”123 the term “illegal alien” was defined as “an alien who is not lawfully present in the united states”, in reference to the irca.124 moreover, before 112 ramakrishnan & gulasekaram, supra note 109, at 1433. 113 hiroshi motomura, immigration outside the law, 108 colum. l. rev. 2037, 2055 (2008). 114 see infra note 4. 115 id. 116 mary d. fan, post-racial proxies: resurgent state and local anti-“alien” laws and unity-rebuilding frames for antidiscrimination values, 32 cardozo l. rev. 905, 924 (2011) (emphasis in original). 117 keller v. city of fremont, 719 f.3d 931 (8th cir. 2013). 118 as clarified in supra note 4, the use of the terms “illegal aliens” and “unauthorized aliens” are pejorative in nature. nevertheless, in order to highlight the court’s use of these pejorative terms, this note will use these terms when employed by the court’s opinion. 119 keller, 719 f.3d at 937. as suggested by the circuit court opinion, the citizens of fremont were concerned with a rise in the city’s hispanic population, which had nearly tripled in numbers since 2000. id. 120 8 u.s.c. § 1101. 121 keller, 719 f.3d at 937. 122 id. at 939. 123 id. at 938. 124 id. 134 the shrouded borderland between preemption and discrimination vol. 5.2 the city government could conclude that an individual was an “illegal alien”, its representatives had to consult the federal government to verify the individual’s legal status.125 the provisions further required that, with certain exceptions, every prospective renter over the age of eighteen had to obtain an occupancy license issued by the local government, and every landlord had to obtain a copy of the renter’s license as a condition to signing the lease contract.126 after an occupancy license was issued, the fremont city police department would consult the federal government to determine if the individual was an “illegal alien.”127 if the federal government determined that the individual was not a “legal resident” or a citizen of the united states, the local police would notify the renter and the landlord of the federal government’s determination and would grant them a period to establish the renter’s legal status as an immigrant in the united states.128 if the individual failed to prove his lawful stay in the united states, his license would be revoked and both the landlord and the renter would be fined $100 a day.129 the affected renter and landlord would then have an opportunity to seek administrative and judicial review.130 the circuit court examined the district court’s determination that, although the requirement of information as to the renter’s legal status and the subsequent verification of that information with the federal authorities was not preempted by federal law, the ordinance’s imposition of penalties for what equated to be a prohibition of harboring undocumented immigrants, was conflict preempted by the irca.131 after examining arizona v. u.s., the eighth circuit reversed the district court’s determination.132 first, the court understood that congress had made no pronouncement in irca that constituted an exercise of express preemption. second, and after interpreting decanas v. bicas, the eighth circuit held that city ordinances such as the one at issue were not field preempted by federal law because they were only designed to deter, or even prohibit, undocumented immigrants from residing within a particular locality, and were not tantamount to immigration laws establishing who may enter or remain in the country.133 the court further held that, as long as the state laws do not attempt to remove the undocumented immigrant from the united states, states have an economic and social interest in deterring undocumented immigrants from entering their state in violation of federal law.134 the court’s opinion also sustained that the state’s occupancy license were nothing like the registration laws held preempted in arizona v. u.s. the eighth circuit arrived at its conclusion by interpreting that the occupancy license scheme in dispute, different from the registration laws held preempted in the past by the u.s. supreme court, required information from all renters—non-citizens and citizens alike—without requiring information only from undocumented immigrants, or even non-renting undocumented immigrants.135 finally, the court also rejected other possibilities of implicit field preemption in relation to the irca sections that regulate the harboring of undocumented immigrants. 136 said provisions “impose criminal penalties on any person who ‘knowing or in reckless disregard of the fact that an alien has come to, entered, or 125 id. 126 id. 127 id. 128 id. 129 id. 130 id. 131 id. at 938-939. 132 id. at 940. 133 keller, 719 f.3d at 940-941. 134 id. at 941 (citing plyer v. doe, 457 u.s. 202 (1982)). 135 id. at 943. 136 id. (citing 8 u.s.c. § 1324(a)(1)(a)(iii)). 2015 columbia journal of race and law 135 remains in the united states in violation of law, conceals, harbors, or shields from detection . . . such alien in any place, including any building or any means of transportation.”137 employing an approach to preemption similar to the supreme court’s approach in de canas and whiting, the eighth circuit relied heavily on the presupposition that no state law will be held preempted unless congress clearly manifests an intention to preempt state authority to regulate in a manner consistent with federal law.138 accordingly, the court held that if congress wanted to preempt local anti-harboring laws, it should do so expressly,139 or by instituting a pervasive framework of anti-harboring regulation. interpreting that that was not the case with the irca’s anti-harboring provision, the eighth circuit understood that states and local governments could enact laws aimed at supplementing federal legislation in this area.140 furthermore, the court held that the fremont ordinance did not conflict with the irca anti-harboring provision just because it defined the word “harboring” more expansively or imposed penalties not contemplated by the federal statute.141 in order to distinguish the fremont ordinance from section 5(c) of arizona’s s.b. 1070, the court limited itself to saying that the arizona provision was focused on enforcing the federal anti-harboring provision, while the fremont disposition only prohibited “harboring conduct that is inconsistent with the city’s local public interests.”142 according to the eighth circuit, congress did not intend “to preempt states and local governments from imposing different penalties for the violation of different state or local prohibitions simply because the prohibited conduct was labeled ‘harboring.’”143 the eighth circuit next addressed whether the ordinance was conflict preempted due to the possibility that it stood as an obstacle to the accomplishment and execution of the full purposes and objectives of congress in providing exclusive federal procedures for removing undocumented immigrants according to the irca.144 the plaintiffs argued that the fremont city ordinance scheme would interfere with the federal government’s intervention with undocumented immigrants for their subsequent removal by forcing undocumented immigrants to leave the city after the federal government had already determined their location but was in the process of determining how it would intervene with these immigrants.145 the eighth circuit rejected these contentions. if the fremont ordinances amounted to a de facto removal, the court held, then the state statutes upheld in de canas and whiting should have also been held preempted. in the eighth circuit’s view, the laws at issue in de canas and whiting would have also indirectly driven undocumented immigrants out of the state, obscuring their location for federal law enforcement purposes.146 as such tangential concerns had previously been rejected by the supreme court, the eighth circuit declined to accept the plaintiff’s reasoning. the eighth circuit also grounded its decision in arizona v. u.s. specifically, it distinguished the fremont ordinance from one of the provisions held preempted in arizona, section 6. according to the court, section 6 required the local arizona officials to independently determine if the immigrant was removable from the u.s., and to take action accordingly. the fremont ordinance, on the other hand, did not authorize state 137 id. 138 id. at 943 (“‘only a demonstration that complete ouster of state power-including state power to promulgate laws not in conflict with federal laws-was the clear and manifest purpose of congress would justify th[e] conclusion’ that congress ‘intended to oust state authority to regulate … in a manner consistent with pertinent federal laws.’”) (citing decanas, 424 u.s. at 357). 139 id. at 942. 140 id. at 943. 141 id. 142 id. 143 id. 144 id. at 942. 145 id. at 943-945. 146 id. at 944. 136 the shrouded borderland between preemption and discrimination vol. 5.2 officials to remove undocumented persons from the city, only empowering them to fine and revoke occupancy licenses for those without documentation.147 since the state provisions in question did not “remove” any undocumented immigrant from the united states (or even from the city), federal immigration officials retained complete discretion to decide whether and when to pursue removal proceedings.148 such a scheme, the court concluded, mirrored the system validated in whiting by the supreme court.149 finally, the eighth circuit held that the plaintiffs’ claims that the city ordinance would affect the federal removal procedure by forcing undocumented immigrants outside of the city and thereby upsetting the knowledge of their location for removal purposes, was a claim not fit for a facial challenge.150 analogizing to arizona, the court focused on the only provision of s.b. 1070 that was not held preempted by the supreme court: section 2(b).151 the supreme court in arizona held that said provision could not be declared conflict preempted because there was a basic uncertainty about what the local law meant and how it would be enforced; hence, at the stage of a facial challenge, without the benefit of a definitive interpretation from the state courts, it would have been inappropriate to assume that the provision in question would be construed in a way that created a conflict with federal law.152 employing the same reasoning, the eighth circuit held that it was too early to declare the rental provisions conflict preempted, choosing to wait for an as applied challenge to gauge how the state authorities would enforce and interpret its rental provisions.153 c. villas at parkside partners v. city of framers branch shortly after the eighth circuit issued its opinion, the fifth circuit was asked to decide a similar question on nearly identical facts in villas at parkside partners v. city of farmers branch.154 the case arose from the city of farmer’s branch, texas, which passed an ordinance that required every individual who rented an apartment or a single-family unit to obtain an occupancy license.155 once the license was obtained, the local authorities would consult the federal authorities as to the individual’s immigration status.156 if the federal authorities held twice that the individual was an undocumented immigrant, the city inspector would revoke the individual’s license, as well as the landlord’s renting license. the city ordinance also included seven offenses related to the renting of a dwelling place to or by an undocumented immigrant: (1) renting a dwelling place without a license; (2) making a false statement when applying for a license; (3) renting a residence without obtaining licenses from the occupants; (4) failing to maintain copies from all known occupants; (5) failing to include a provision in the lease indicating that occupancy by a person without a license equates to a default; (6) allowing an occupant to inhabit a residence without a valid license; and (7) knowingly permitting an occupant to lease a property without a license.157 any transgressor would be fined up to $500 for each breach.158 in addition, violators could be fined for every day that one of these offenses remained without rectification.159 despite the similarities between the farmer’s branch ordinance and the fremont ordinance, the fifth circuit found the farmer’s branch ordinance to be conflict preempted under the supremacy clause of the u.s. 147 id., at 944. 148 id. 149 id. at 944. 150 id. at 945 151 id. 152 id. 153 id. 154 726 f.3d 524 (5th cir. 2013). 155 id. at 526. 156 id. 157 id. at 527. 158 id. 159 id. 2015 columbia journal of race and law 137 constitution.160 in direct opposition to the eighth circuit, the fifth circuit held that the texas occupancy license scheme’s criminal provisions conflicted with the irca’s statute criminalizing the harboring of undocumented immigrants as well as its scheme to remove these individuals from the u.s.161 the court found that the ordinance disrupted the federal government’s discretion as to when and how to prosecute and bring to fulfillment a removal procedure.162 the court also found a conflict between the ordinance and the irca since the ordinance granted state officials authority to act as immigration officers outside the “limited circumstances” specified by federal law.163 the court further reasoned that federal law did not criminalize an undocumented immigrant’s rental of a home without a license, and that the city ordinance, when it instructed arrests for a violation of its provisions, was creating a new category of undocumented immigrant status not contemplated by federal law, thus affecting the irca’s carefully structured removal scheme.164 furthermore, unlike the state provisions validated in de canas and whiting, the farmer’s branch ordinance’s scope also affected non-citizens who may not have lawful status but face no federal exclusion from rental housing, exposing these individuals to arrests, detentions and prosecutions based on the local government’s assessment of their “unlawful presence,” without federal direction or supervision.165 in the end, the court found that the city ordinance allowed a state to do what the supreme court prohibited in arizona: make an initial determination of the lawful status of an undocumented immigrant without the required intervention of the federal government.166 the fifth circuit rested its conclusion on the testimony of local officials and federal immigration officers, who all conceded that the verification of the undocumented immigrant’s status with the federal immigration authorities did not provide enough information about the immigrant’s “legal presence in the united states,” which is determined through a “labyrinth of [federal immigration] statutes and regulations governing the classification of non-citizens.”167 as such, a local officer would have to make an independent determination as to the lawfulness of the immigrant’s stay.168 the ordinance examined by the fifth circuit bore one key difference from the fremont ordinance: it allowed local officials to arrest undocumented immigrants believed to be illegally staying in the u.s. if they were unable to prove that they were citizens or legal residents of the u.s. the fifth circuit analogized the city ordinance to section 6 of s.b. 1070, held preempted in arizona (section 6), to determine that the city ordinance was federally preempted because it violated the principle that the removal process is entrusted to the federal government.169 according to the court, the farmer’s branch ordinance was even more in conflict with the federal immigration scheme than section 6 of s.b. 1070 because it did not limit the state officers to arresting an undocumented immigrant they suspected to not be lawfully present in the u.s. with the intention of later referring him to the pertinent federal authorities. instead, it empowered state officers to arrest, prosecute and sentence an individual beyond the federal government’s supervision, allowing the state to achieve an immigration policy of its own.170 thus, the fifth circuit court declared farmer’s branch’s ordinance to be conflict preempted because its criminal provisions existed outside the federal statutory structure and conflicted 160 id. at 528. 161 id. at 529-532. 162 id. at 530. 163 id. at 532. 164 id. at 533-534. 165 id. at 532. 166 id. at 534. 167 id. 168 id. 169 id. at 534. 170 id. at 534-35. 138 the shrouded borderland between preemption and discrimination vol. 5.2 with federal anti-harboring laws and the federal authority to arrest and detain persons for possible unlawful presence.171 d. lozano v. city of hazleton in lozano v. city of hazleton,172 the third circuit examined two city ordinances which were designed with a similar structure and aim as the ones analyzed by the eighth and fifth circuits.173 these ordinances made legal immigration status a condition to entering into a valid lease and made it “unlawful for any person or business entity that [owned] a dwelling unit in the city to harbor an illegal alien… knowing or in reckless disregard of the fact that [the] alien [was] unauthorized.”174 the ordinances defined the term “harboring” to include the leasing or renting of a dwelling place to an undocumented immigrant. they also required landlords and tenants to abide by an occupancy license regime conditioned upon the tenant’s proof of legal citizenship or residency.175 any person found in violation of the ordinance’s provisions would be subject to fines and possible imprisonment.176 although the third circuit joined the fifth circuit and found the local ordinances preempted by federal law, it relied on field preemption in addition to conflict preemption. the fifth circuit understood the supreme court’s decision in arizona to mean that the irca clearly preempted any attempt by the local government to regulate residency of immigrants through the guise of housing regulations.177 it went on to hold that the irca is centrally concerned with the terms and conditions of admission to the country and the subsequent treatment of non-citizens lawfully admitted.178 the third circuit added that the irca’s comprehensive scheme plainly precludes state efforts, whether harmonious or conflicting, to regulate residence in the u.s. based on immigration status.179 as such, although the city’s housing provisions did not control actual physical entry into, or expulsion from, the city or the united states, in essence, that is precisely what they attempted to do.180 the third circuit also found the city ordinance to be conflict preempted because the housing provisions interfered with the federal government's discretion in, and control over, the removal process.181 resting on arizona, the court found the housing provisions to be inconsistent with federal anti-harboring laws because they limited all housing options for undocumented immigrants in the city, constituting a de facto removal based on the person’s immigration status.182 the third circuit’s analysis of the hazleton ordinance also focused on the supreme court’s analysis of the s.b. 1070 provisions which gave state officers the authority to arrest an individual based on probable cause that the individual had committed a removable offense. just as the supreme court had held in arizona that the referenced provision would allow the state to achieve its own immigration policy, which could result 171 id. at 535-36. the court also held the city ordinance to be preempted because its judicial review provision delegated in state judicial officers the power to classify non-citizens and assess the legality of their presence in the u.s. id. at 53637. a power that, according to the court, is exclusively reserved to the federal government. id. 172 724 f.3d 297 (3d cir. 2013). 173 id. at 301. between july 2006 and march 2007, the city of hazleton enacted the illegal immigration relief act ordinance and the rental registration ordinance. 174 id. at 301. 175 id. 176 id. 177 id. at 315-316. 178 id. at 315. 179 id. 180 id. at 316. 181 id. at 317. 182 id. 2015 columbia journal of race and law 139 in the unnecessary harassment of some non-citizens whom federal officials determined should not be removed, so too the city of hazleton’s provision interfered with the federal immigration scheme, despite the fact that the city ordinance applied to all residents.183 iv. a framework for potential reconciliation a. preemption as discrimination the three circuit court opinions discussed above make clear the various discriminatory attributes involved in ordinances limiting undocumented people’s access to housing. as this section will argue, the local ordinances enacted by the cities of fremont, farmers branch, and hazelton are quintessential examples of the (1) use of race-neutral laws and legal terminology as a proxy for racial discrimination; and (2) the validation or rejection of discrimination through a legal discourse of preemption. 1. the use of race-neutral laws and legal terminology as a proxy for discrimination in requiring every potential renter to obtain occupancy licenses, the referenced ordinances appear facially race-neutral. each of these localities’ ordinances purports to establish a licensing scheme aimed at “all” interested renters, requiring from “every” potential renter proof of citizenship or legal residency. by so doing, they give a false impression that the scope of their coverage is extendable to all renters in equal terms, when in truth their impact is disparately targeting undocumented immigrants. specifically, farmer’s branch’s ordinance intends to apply to every “individual . . . occupying a rented apartment or ‘single-family residence.’”184 in similar terms, hazleton’s housing ordinance is addressed to “any prospective occupant of rental housing over the age of eighteen.”185 fremont’s ordinance uses identical language.186 this race-neutral language avoids acknowledging that undocumented immigrants will be the only individuals who will always fail to meet the ordinance’s proof of citizenship or legal residency requirement. as such, discriminatory intentions are cloaked in over-inclusive categorization efforts, and immigrants of underdeveloped countries who do not have the resources necessary to obtain legal residency or citizenship, are pushed out of cities and states through a legal discourse impregnated with racial profiling, yet covered in false layers of neutrality. to make matters worse, judicial decisions can solidify such racial discrimination by failing to recognize that these race neutral laws structurally propagate racism. this is the case of the eight circuit opinion in keller, where the court dismissed the claim that the ordinance targeted undocumented immigrants through race neutral structures. the court asserted that “[t]he [fremont] ordinance require[d] all renters, including u.s. citizens and nationals, to obtain an occupancy license before renting a dwelling unit in the city.”187 as such, it placed u.s. citizens and undocumented immigrants in the same legal category, despite the fact that the fremont ordinance disparately impacted the latter. on the other hand, the local ordinances under examination adopt a different brand of structural determinism when addressing the landlords within the licensing scheme. by using the phrases “illegal alien” and “harboring of an alien” to penalize a landlord’s agreement to rent a dwelling place to an immigrant without proof of citizenship or legal residency,188 the local laws create a schism between citizens and undocumented immigrants, fostering hostility against foreigners, denying them the basic human right of having shelter, and 183 id. at 318. 184 farmer’s branch ordinance no. 2952 at §§ 1(b)(1); 3(b)(1) (emphasis added). 185 lozano, 724 f.3d at 314 (emphasis added). 186 keller, 719 f.3d at 938. 187 id. at 943 (emphasis in original). 188 see id. at 938; villas at parkside partners, 726 f.3d at 526-57; lozano, 724 f.3d at 314. 140 the shrouded borderland between preemption and discrimination vol. 5.2 criminalizing anyone who aids them. as such, the law uses a pejorative term to categorize the immigrant as an unwanted other, excluding them from the local community through unreasonable licensing schemes. 2. the validation or rejection of discrimination through a legal discourse of preemption the ambiguities that plague preemption doctrine can further foster this form of discrimination. as noted above, an obvious discrepancy exists between the non-preemptive result arrived at by the eighth circuit opinion in its analysis of the fremont ordinance and the fifth and third circuits’ determination that such ordinances as enacted by the cities of farmer’s branch and hazleton, were federally preempted.189 this circuit split reflects a difference of opinions in the examined circuit court opinions concerning the use of the doctrine of preemption to validate or condemn the discriminatory animus artfully veiled in each of these ordinances. each ordinance is justified by its legislative authors through protectionist and national security arguments, and a “state sovereignty” discourse. in the case of fremont, nebraska, for example, the city ordinance enacted by popular referendum, which regulated the housing of undocumented immigrants, was specifically grounded in a fear that the growing hispanic population would increase crime, preclude white residents from finding jobs in the traditional meat-packing town, and change the character of the quiet city.190 when the eighth circuit examined whether or not the ordinance was federally preempted, it relied on the same protectionist argument employed by the city to conclude that the local law was not federally preempted. to do so, the eight circuit adopted an approach similar to the supreme court’s determination in de canas and whiting, by relying heavily on the basic presumption that no state law will be held preempted unless congress clearly manifests an intention to do so. based on this principle, it concluded that the city ordinance was not field preempted because it did not seek to remove an undocumented immigrant from the united states, but merely sought to “deter” them from residing in a particular city. since the ordinance was not tantamount to the removal of an undocumented immigrant –an activity exclusively delegated to the federal authorities– the ordinance allegedly did not affect the legal framework established by congress. to sustain this conclusion, the eight circuit emphasized that the city had an economic and social interest in deterring undocumented immigrants from entering their boundaries in violation of federal law.191 this argument, similar to the discourse employed by the advocates of the ordinance, is clearly protectionist in nature, seeking to use the principles embedded in the doctrine of preemption –deference to state law in the absence of an express congressional intent to occupy the field– to exclude undocumented immigrants from a particular community, all for the sake of the city’s “economic and security” interest. comparing the eighth circuit’s use of the principles of the doctrine of preemption with the third and fifth circuits’ legal analysis, there emerges a potential use of the principle of preemption to hinder discrimination, rather than foster it. for instance, the hazleton, pennsylvania mayor justified the ordinance regulating the renting of houses by undocumented immigrants on the protectionist basis that the city’s hispanic population, which accounted for forty percent of the residents, was allegedly straining the city’s budget, contributing to the rising crime rate, and was changing the character of the city by supposedly adopting unhygienic lifestyles. all of this alleged behavior was due to the federal government’s failure to secure the united states’ borders and enforce the federal immigration laws.192 when the third circuit examined the ordinance under the doctrine of preemption, it acknowledged that the city ordinance constituted a de facto removal, which was preempted by the federal supreme court in arizona. accordingly, the court refused to 189 see supra part ii.b-d. 190 monica davey, nebraska town votes to banish illegal immigrants, n. y. times (june 21, 2010), http://www.nytimes.com/2010/06/22/us/22fremont.html?%20nebraska&_r=0. 191 id. at 951 (citing plyer v. doe, 457 u.s. 202 (1982)). 192 r. martin, immigration and the argument against citizenship, npr news (apr. 14, 2013), http://www.npr.org/2013/04/14/177204409/immigration-and-the-argument-against-citizenship. 2015 columbia journal of race and law 141 give deference to a city’s protectionist interests, preferring instead to protect an undocumented immigrant’s right to housing, at least until the federal government decides to remove the undocumented immigrant through the enforcement of the federal removal procedures. in farmer’s branch, texas, the case was no different; the “ordinance’s sole purpose was to exclude undocumented [immigrants], specifically latinos, from the” city.193 nevertheless, the ordinance’s legislative intent did not preclude the fifth circuit’s decision to rely on arizona to conclude that the ordinance interfered with the federal government’s discretion as to when and how an undocumented immigrant should be removed from the united states. again, the court found that the city ordinance constituted a de facto removal, which left the undocumented immigrant with no housing alternatives, since the federal government had not yet decided to remove the non-citizen from the united states. in light of the information above, it is evident that how courts apply the doctrine of preemption will determine the degree of discrimination that an undocumented immigrant will suffer. although certainly the third and fifth circuit opinions did not prevent the removal of an undocumented immigrant by the federal government, at least they hindered a city’s de facto removal of a non-citizen based on racial profiling shielded by protectionist discourse. based on this conclusion, and in an effort to provide a doctrinal and nondiscriminatory solution to the analyzed circuit split, the following section will offer a comprehensive federal answer to the preemption of state or local government ordinances that prohibit undocumented immigrants from renting a dwelling. b. a doctrinal and non-discriminatory approach as explained above, every preemption inquiry is centrally concerned with whether congress has manifested an express or implied intent that its federal legislation be exclusive in nature, trumping any conflicting state law by virtue of the supremacy clause.194 when examining congress’ preemptive intent, one must keep in mind that preemption doctrine requires a clear and manifest expression that congress wills its federal legislation to oust any homologous state law.195 if such a congressional intent is not identified, a presumption exists in favor of states exercising their police powers to regulate a determined subject.196 1. express preemption analysis as a first step, one must evaluate if such a congressional intent has been expressly manifested. an examination of the irca shows that congress has not established any express statutory provision aimed at regulating the conditions or circumstances under which an undocumented immigrant may rent a dwelling. the absence of an express preemptive clause, however, does not foreclose the possibility that the local housing ordinances are preempted. 2. field preemption analysis the second step of the inquiry requires an examination of whether congress has impliedly intended for the irca to preempt the housing ordinances under consideration; in other words, if the state legislation is field or conflict preempted.197 field preemption will exist if a scheme of federal regulation is so pervasive as to make reasonable the inference that congress has not permitted the states to supplement it, or where an act of congress touches a field in which the federal interest is so dominant that the federal system will be assumed 193 there’s been a lot of pain living in the shadows, undocumented immigrants face continuing uncertainty, the daily record (mar. 17, 2015), http://thedailyrecord.com/2015/03/17/theres-been-a-lot-of-pain-living-in-the-shadows/. 194 see supra part i.a. 195 id. 196 id. 197 id. 142 the shrouded borderland between preemption and discrimination vol. 5.2 to preclude enforcement of state laws on the same subject.198 to aid one’s analysis in determining if the state ordinances under examination are field preempted, this note will apply the four criteria articulated by professor chemerinsky, which were considered in depth earlier in this note.199 the first of these criteria requires courts to examine if the area in controversy is one where the federal government traditionally has played a unique role. in connection to this factor, it is important to observe that throughout the three circuit court opinions previously examined, a pattern emerges whereby the local ordinances defined “harboring an illegal alien” to include the leasing of a house to an undocumented immigrant. 200 this regulatory activity, however, has been an area where the federal government has traditionally engaged in significant and pervasive regulation. since 1917, the federal government has manifested a significant role and has provided a comprehensive scheme for the regulation and prosecution of those who harbor undocumented immigrants.201 specifically, the irca establishes criminal sanctions for any person that knowingly “or in reckless disregard of the fact that an alien has come to, entered, or remains in the united states in violation of law; conceals, harbors, or shields from detection; or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building.” 202 as part of this elaborate scheme, the irca imposes civil and criminal penalties for any undocumented immigrant who unlawfully enters into the united states.203 furthermore, congress has also provided criminal penalties against any individual who brings an undocumented immigrant into the united states;204 aids the entry of an inadmissible immigrant;205 and imports an immigrant for an immoral purpose.206 in light of the above, certainly the federal government has clearly expressed more than a “peripheral concern” with the entry, movement, and residence of undocumented immigrants within the united states.207 professor chemerinsky next would have courts determine whether congress has expressed an intent in the text of the law or in the legislative history that federal law be exclusive in said area. although the irca does not explicitly foreclose state activity on the subject of undocumented immigrant anti-harboring regulations, it does explicitly limit the role that state officers may perform in this field. within this complex federal immigration framework, congress has provided that state officers, with the authorization of the federal government, can only assist by arresting the individuals who commit these offenses;208 participating in joint task-forces with federal officers; providing operational support in executing a warrant; or allowing federal immigration officers to gain access to detainees held in state facilities.209 the federal courts, nonetheless, maintain exclusive jurisdiction to prosecute for these crimes and interpret the boundaries of the federal statute.210 this evinces a textual parameter as to the ambit of activity allowed to the state actors. 198 id. 199 according to professor chemerinsky, a state legislation or local ordinance will be preempted: (1) if the area in controversy is one where the federal government traditionally has played a unique role; (2) if congress has expressed an intent in the text of the law or in the legislative history to have federal law be exclusive in said area; (3) if allowing state and local regulations in the area risk interfering with comprehensive federal regulatory efforts; and, (4) if there is an important traditional state or local interest served by the law. id. 200 see supra part ii.b-d. 201 georgia latino alliance for human rights v. governor of georgia, 691 f.3d 1250, 1263 n.10 (11th cir. 2012). see also u.s. v. alabama, 601 f.3d 1269 (11th cir. 2012). 202 8 u.s.c. § 1324(a)(1)(a)(iii). 203 8 u.s.c. § 1325. 204 8 u.s.c. § 1324. 205 8 u.s.c. § 1327. 206 8 u.s.c. § 1328. 207 georgia latino alliance for human rights, 691 f.3d at 1264. 208 8 u.s.c. § 1324(c). 209 arizona, 132 s. ct. at 2507. 210 8 u.s.c. § 1329. 2015 columbia journal of race and law 143 chemerinsky’s third and fourth factors involve the risk of state or local regulation interfering with comprehensive federal regulatory efforts and the presence of an important traditional state or local interest in regulating the field. the court in arizona established that state officers enforcing local immigration efforts of this nature can disrupt and affect the discretion and strategy employed by the federal government in the arrest, prosecution and eventual removal of undocumented immigrants.211 although the eighth circuit concluded that the fremont housing ordinance only prohibited harboring conduct that was inconsistent with the city’s local economic and security interests,212 such factors are incompatible with the irca’s comprehensive scheme, which impliedly forecloses state participation beyond the federally supervised efforts as previously explained. in light of the above, and in harmony with the third and fifth circuit court opinions, this note’s analysis concludes that the local ordinances instituting licensing schemes that criminalize a landlord’s provision of a rental lease to an undocumented alien under de facto local anti-harboring statutes, is field preempted by the irca. 3. conflict preemption analysis having examined the housing ordinances in light of the doctrines of express and field preemption, it is necessary to ascertain if these local provisions are conflict preempted; that is, if they stand as an obstacle to the accomplishment and execution of the full congressional purposes and objectives.213 when one pauses to think about the nature of the housing ordinances in dispute, one must see that their functional objective is to drive immigrants out of the cities that have adopted these provisions, by denying undocumented immigrants, in practical terms, the ability to rent a dwelling in the regulated area. although a de jure examination only reveals a simple licensing scheme, which on its face is neutrally applicable to all citizens interested in renting a dwelling, its underlying objective consists of a local agenda aimed at discriminating against undocumented immigrants, by instituting a de facto local government non-citizen removal process. the supreme court’s decision in arizona provides valuable precedential guidance in making this argument. there, the supreme court established that, “[a]s a general rule, it is not a crime for a removable alien to remain present in the united states.”214 the irca instructs the federal authorities as to when it is advisable for a removal process to be initiated against an undocumented immigrant.215 this decision is highly discretionary in nature, and entails the weighing of complicated factors that advise as to when, how, and if removal is an advisable decision.216 only the federal government, in its constitutional role of interfacing with foreign powers, is capable of exercising such discretion. “a decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the united states. decisions of this nature touch on foreign relations and must be made with one voice.”217 accordingly, when state officers and governments institute de facto removal procedures that are not authorized, guided or supervised by the federal authorities, the irca removal scheme is gravely affected.218 the eighth circuit declined to reach such a conclusion by stating that it was too early to declare the fremont rental provisions conflict preempted.219 in the court’s judgment, it was necessary to wait for an as 211 arizona, 132 s. ct. at 2506-07. 212 see supra part ii.b. 213 see supra part i.a. 214 arizona, 132 s. ct. at 2505. 215 id. 216 id. at 2506. 217 id. 218 id. at 2506-07. 219 see supra part ii.b. 144 the shrouded borderland between preemption and discrimination vol. 5.2 applied challenge to gauge how the state authorities would enforce and interpret its rental provisions.220 this conclusion, however, fails to recognize that the local ordinance is facially unconstitutional. regardless of how a local court interprets its scope in an as applied challenge, its final consequence will be to deny undocumented immigrants all possibility of renting a dwelling. this constitutes a de facto removal procedure, since the noncitizen will be driven from the city to a location unknown to federal immigration officers. hence, the federal removal scheme will be upset, and clear supreme court constitutional precedents, which establish that the removal process is exclusively entrusted to the federal government, will be gravely violated. in light of the above, the housing ordinances examined by the third, fifth, and eighth circuits are conflict preempted, because they constitute an obstacle to the full congressional purposes and objectives in its regulation of the immigration removal procedure. moreover, their discriminatory intent leads to a de facto removal that affects an undocumented immigrant’s basic human right to adequate housing and upsets a federal immigration policy that is designed to weigh complicated factors not considered by the ordinances under examination. deference to state laws, a state’s interest in protecting its economic and security interests, or the sovereignty of local governments, cannot suffice to trump basic preemption principles that entrust the federal government with the obligation to coherently coordinate the nation’s removal policy. although declaring a housing ordinance federally preempted does not guarantee that an undocumented immigrant will not be subjected to discriminatory immigration policies, at least it avoids a plethora of local-government immigration laws that seek to protect a citizen’s economic and security interest, at the expense of an undocumented immigrant’s right to housing. accordingly, the framework presented herein constitutes the most balanced doctrinal solution to a circuit split that brings to the fore a serious need to reform the united states’ immigration law. v. conclusion this note has examined the constitutionality of an ever-increasing wave of local ordinances aimed at denying undocumented immigrants basic housing rights. through an analysis of a recent circuit split, this note has endeavored to establish that these new local immigration regulations violate the constitution’s supremacy clause because they impinge on policy areas traditionally reserved for the federal government. specifically, this note has strived to establish that, according to the basic principles of the constitutional preemption doctrine, these housing ordinances are field and conflict precluded, because they illegitimately aspire to intervene with a pervasive federal scheme of anti-harboring regulations, and because they represent an obstacle to the federal government’s purposes and objectives in its control of the immigration removal procedure. although state security and economic interests urge local governments to adopt new immigration regulations aimed at filling the interstices left by the federal government’s failure to legislate and implement a comprehensive immigration policy, such pressures cannot be allowed to result in local immigration policies that undermine the united states’ foreign relationships and unnecessarily discriminate against undocumented immigrant communities. although this note’s analysis was limited to examining the constitutional validity of these housing ordinances in light of the federal supremacy clause, further studies will have to examine legislative, judicial and communitarian alternatives that will adequately balance the concerns and needs of the local governments, with the basic rights of undocumented immigrants. meanwhile, the federal government must aspire to responsibly employ its constitutional competence to regulate the field of immigration, aware that the united states is a plural and diverse nation which must accommodate the influx of immigrants and foreigners who seek to build a new future on its shores while contributing to its economic, cultural and political growth. 220 id. microsoft word cjrl ben shahar f16 eic v3 (post-macro).docx race, class, and religion: creaming and cropping in religious, ethnic, and cultural charter schools tammy harel ben shahar* this article is devoted to one of the most fascinating contemporary developments in american public education— the phenomenal rise of religious, ethnic, and cultural charter schools. religious, ethnic, and cultural charter schools are established by a religious or ethnic community with the aim of providing an education saturated with the respective values and culture of that community. despite their growing prevalence and the significant legal challenges they pose, they have, thus far, not been given sufficient attention by legal scholars. what little discussion there is focuses solely on religious charter schools’ incompatibility with the first amendment’s establishment clause. while the establishment clause challenge constitutes one central challenge to religious charter schools, another crucial aspect of their operation should be highlighted: their negative impact on the educational opportunities of children from racial minorities and lower socioeconomic classes. the article argues that because of their unique characteristics, religious, ethnic, and cultural charter schools are especially likely to have negative effects on educational equality, and makes the case for legislative intervention in order to prevent this outcome. first, the article exposes and explores the central * assistant professor at the university of haifa faculty of law. i wish to thank the fulbright foundation and the tikvah fund at nyu school of law for their support. for helpful comments, i am grateful to courtney bowey, eve buckley, charles clotfelter, elizabeth emens, david enoch, moshe halbertal, jay heubert, barak medina, orna rabinovicheiny, yair sagy, nadav shoked, paul tractenberg, and the participants of the education law association conference, the columbia law school visiting scholar colloquium, and the tikvah center workshop at nyu school of law. 2 columbia journal of race and law [vol. 7:1 detrimental effects of religious, ethnic, and cultural charter schools: racial and socioeconomic segregation, and the twinprocesses of “creaming” and “cropping.” then, based on a comprehensive critical survey of all charter legislation in the united states aimed at preventing segregation in the different states, the article argues that charters’ antidiscrimination rules have the surprising effect of worsening inequality instead of alleviating it, and that the legislative measures aimed at ensuring integration cannot fully promote equality. therefore, the article supports a different strategy, adopted recently in delaware, according to which religious and ethnic charter schools should be authorized only if they do not compromise the education of students in traditional public schools. i. introduction ................................................................ 3 ii. what are religious, ethnic, and cultural charter schools? ....................................................... 9 a. charter schools and religious, ethnic, and cultural charter schools ........................................ 9 b. explaining the popularity of religious, ethnic, and cultural charter schools ...................................... 20 c. rec charter schools and the establishment clause ..................................................................... 28 iii. rec charter schools and equal educational opportunity ................................................................ 33 a. student composition: the peer effect ................. 34 b. segregation within religious, ethnic, and cultural charter schools ...................................... 37 c. creaming ................................................................ 40 d. cropping ................................................................. 52 e. addressing two counterarguments ..................... 55 iv. legal regulation of charter schools ................ 58 a. antidiscrimination ................................................. 61 b. reflecting the racial and socioeconomic composition of school districts ............................ 63 c. examining the effect of charter schools on traditional public schools .................................... 72 v. conclusion ................................................................. 78 no. 1:1] religious, ethnic, and cultural charter schools 3 i. introduction a perplexing new phenomenon is gaining prevalence in american public education—religious, ethnic, and cultural charter schools (“rec charter schools”). rec charter schools are established by a religious or cultural community with the aim of providing an education according to the values, historical context, and culture of that particular group. considering that charter schools are essentially public schools, a religious charter school may seem like an oxymoron—an unconstitutional establishment of religion. the fact is, however, the charter school movement has enabled private entities to establish schools, and religious communities were quick to follow suit. in the past decade or so, dozens of religious charter schools have emerged. despite the fact that controversy has accompanied their establishment, this trend is showing no signs of decline. legal scholars have not yet given rec charter schools sufficient attention, despite their growing prevalence and the significant legal challenges they pose. what little discussion there is focuses solely on religious charter schools (as opposed to rec charter schools) and their incompatibility with the first amendment’s establishment clause.1 ethnic and cultural charter schools have received little, if any, attention. there is another crucial aspect of operation of religious charter schools that has largely been overlooked in the literature, namely their effect on educational opportunity. since education administrators and legal scholars wrongly assume that rec charter schools are no different in this respect than any other charter school, this pressing issue has not received any special regulatory treatment or scholarly attention. this article aims to fill this void and to shed light on the unique and intricate ways in which rec charter schools disrupt educational equality. this article also aims to show how rec charter schools’ special characteristics render 1 u.s. const. amend. i (stating that “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”). 4 columbia journal of race and law [vol. 7:1 insufficient the legal regulations aimed at ensuring equality in regular charter schools. finally, this article presents a more promising legislative strategy for ameliorating these adverse effects on educational equality. the eleanor kolitz hebrew language academy (“ekhla”) is a san antonio, texas-based k-8 charter school. it “shares a building with a jewish community center and a holocaust museum.”2 the school operates on the campus of what used to be a private jewish day school that went by the same name until it closed, just prior to the establishment of ekhla. the name and campus are not the only things that the charter school shares with its private predecessor; the head of ekhla and most of its staff and students are the same as that of the private jewish day school.3 being a public charter school, ekhla is not allowed to actively endorse religion, and judaism is pointedly absent from the information on its website regarding the school’s mission and curriculum. thus, the stated school mission is to offer “a rich and innovative curriculum, with passionate teachers and extraordinary student support.”4 yet, despite attempts to steer clear of thorny first amendment quandaries, ekhla nevertheless has a strong link to jewish culture and religion: ekhla suggests a unique specialization—all its students have daily hebrew classes, with the aim to reach proficiency 2 edgar walters, trying to keep religion out of the charter school classroom, n.y. times (oct. 17, 2013), http://www.nytimes.com/2013/10/18/us/trying-to-keep-religion-out-of-thecharter-school-classroom.html?_r=0 [https://perma.cc/u3bc-pbgx]. 3 id. however, enrollment more than doubled when the school transformed into a charter school, as children from other schools also enrolled at ekhla. 4 about us, eleanor kolitz hebrew language academy, http://www.ekhla.org/about-us/ [https://perma.cc/m32f-q5nd]. the teachers at ekhla, according to their website, “know their students individually,” and “educate the whole student to be gracious, kind and tolerant.” ekhla’s goal is “to develop curious lifelong learners who have a sense of responsibility to the world.” no. 1:1] religious, ethnic, and cultural charter schools 5 in the hebrew language,5 and the school follows the jewish calendar.6 a school like ekhla offers jewish parents a dream solution: (almost) all of the advantages of a jewish day school without the costs. it provides education saturated with jewish culture and identity, including rigorous study of hebrew. additionally, ekhla aims to offer a first class secular education—high student achievement and preparation for higher education and the competitive job market.7 5 hebrew, eleanor kolitz hebrew language academy, http://www.ekhla.org/academics/hebrew/ [https://perma.cc/34vk-6p36]. ekhla explains its choice to specialize in hebrew in strictly secular terms. ekhla’s website informs visitors that “[m]any studies have shown that learning a second language increases both cognitive and creative ability” and that “hebrew is now the official language of israel, a growing nation of significant geo-political importance and an important world player especially in the area of technology.” id. 6 faqs, eleanor kolitz hebrew language academy, http://www.ekhla.org/contact-us/faqs/ [https://perma.cc/xq3v-8wb6]. according to the school website, “ekhla is closed on traditional american holidays, on other days when student attendance would be expected to be low, and on days when the campus where ekhla is located will be closed.” id. in other words, ekhla is closed on jewish holidays. 7 traditionally, private schools often boast higher quality secular education than public schools. education policy researchers argue that religious private schools in particular outperform public schools, supposedly thanks to their rich educational values. william h. jeynes, an education professor at california state university-long beach, presented an analysis of 90 different studies regarding student achievement in traditional public schools, public charter schools, and religious schools, concluding that students in religious schools had the highest achievement—even after controlling for student socioeconomic status (“ses”). see william h. jeynes, a meta-analysis on the effects and contributions of public, publiccharter, and religious schools on student outcome, 87 peabody j. of educ. 305 (2012). as a result, various education reforms, such as the charter school movement, try to emulate the structural characteristics of private schools to reproduce the educational qualities attributed to private schools. however, some researchers have contested these findings, and they argue that private schools’ advantages over others are only attributable to the advantageous backgrounds of the students, and the peer effects they generate. see christopher a. lubienski & sarah thuele lubienski, the public school advantage: why public schools outperform private schools (2014). in their book, lubienski and lubienski found that, when controlling for student ses and peer effects, public schools actually do 6 columbia journal of race and law [vol. 7:1 at the same time, ekhla and other rec charter schools liberate parents from the burdensome tuition of private schools, as well as from the constant concern for the financial sustainability of parochial schools.8 there is one further important characteristic of private schools that rec charter schools such as ekhla succeed in emulating—they create a relatively homogeneous student body, and allow middle class parents to avoid sending their children to public schools with children from racial minority communities or children from lower socioeconomic status (“ses”). this characteristic, while perhaps not openly discussed, is definitely appealing to many parents. research concerning parental decision-making in education confirms that this consideration is extremely salient, ranking high on the list of considerations in the choice of a school.9 this article begins with an analysis of the segregated nature of rec charter schools—of which ekhla is merely one example—and the effects that rec charter schools have on the traditional public schools around them. the challenge to equality caused by rec charter schools is comprised of related concerns: these schools’ worsening of racial and socioeconomic segregation, and the creation of subtler forms of educational stratification that negatively impact educational equality—“creaming” and “cropping.”10 better than private schools. they explain this finding as pedagogical stagnation that is the outcome of private schools’ autonomy. see id. at 117– 21. 8 see raysh weiss, the price of jewschool, jewschool (apr. 11, 2011), http://jewschool.com/2011/04/11/26057/the-price-of-jewchool/ [https://perma.cc/dpf2-6s8j] (noting that jewish day school tuition varies significantly, but can exceed $20,000 per year). 9 see, e.g., charles t. clotfelter, after brown: the rise and retreat of school desegregation 109–10 (2006) (arguing that the percentage of racial minority students in a specific public school district was a dominant factor in determining private school enrollment rates). 10 for the use of the terms “creaming” and “cropping,” see natalie lacireno-paquet et al., creaming versus cropping: charter school enrollment practices in response to market incentives, 24 educ. evaluation & policy analysis 145, 155 (2002) (concluding that while no. 1:1] religious, ethnic, and cultural charter schools 7 “creaming” and “cropping” are processes by which the best (brightest and most motivated) students, and students from high ses, leave one school in favor of another, leaving the former depleted of its stronger students and leaders. the composition of a school’s student body influences the quality of education because of the importance of peer effects for student attainment.11 therefore, the exit of high achievers has destructive consequences for public schools and the students remaining in them. “creaming” refers to the exit of advantaged students and high achievers, whereas “cropping” refers to the equivalent case in schools serving disadvantaged communities. the students who leave the traditional public school in the second case may be neither socioeconomically advantaged nor high achievers, but they still have higher abilities than students who remain in the public school system. generally, critics of the charter school movement have accused charter schools of creating these three negative effects: worsening segregation, creaming, and cropping.12 indeed, some of the charter school legislation analyzed in this article has been specifically designed to address these concerns. the pioneering argument made in this article, however, is that because of their special characteristics, rec charter schools are especially prone to these negative phenomena, much more so than regular charter schools. rec charter schools are especially likely to be racially segregated because they appeal primarily to members of religious and ethnic communities. additionally, students who leave public schools in order to attend rec charter schools are likely to be from privileged families relatively advantaged, creating creaming (in the case of privileged communities) and cropping (in the case of underprivileged communities). the processes washington, d.c.’s studied school system did not cause creaming, it did cause cropping and therefore failed to serve the district’s most disadvantaged students—namely english-language learners and those requiring special education services). 11 see infra note 98. 12 see infra notes 108–12. 8 columbia journal of race and law [vol. 7:1 caused by rec charter schools should trouble not only charter school opponents, for whom religious charter schools are merely another example of the shortcomings of the charter movement, but should be of interest also to charter schools’ most ardent advocates, who strive to perfect the operation of charter schools. such advocates should be concerned with the proliferation of certain charter schools that defy attempts to maintain equal access and opportunity for all students in the charter movement. this article proceeds as follows: part ii describes religious, ethnic, and cultural charter schools; their development; and their special characteristics. this part pays some attention to the different kinds of schools that may be referred to as rec charter schools, the benefits they bestow on their students, and the communities they serve. part ii-c briefly reviews establishment clause challenges that confront religious charter schools, presenting some of the religious practices that religious charter schools engage in, the opposition they have encountered, and the litigation that has already evolved around them. the conclusion of part ii-c is that so long as religious charter schools are careful not to actively endorse religion, they will be able to withstand constitutional challenge. part iii presents the main challenge this article poses to rec charter schools—namely that they hinder the educational opportunities of children from racial minorities and lower ses. this part details three different educational processes that these schools cause: they worsen socioeconomic, racial, and ethnic segregation (part iii-b); they induce creaming (part iii-c); and they create cropping (part iii-d). this part also characterizes the circumstances in which each phenomenon is likely to occur and substantiates the descriptions with social science studies. part iii-e concludes this section by addressing two possible counterarguments. first, this part states that even if rec charter schools create these negative effects, they should not be restricted because they promote the educational opportunities of some students. these benefits, it could be no. 1:1] religious, ethnic, and cultural charter schools 9 argued, outweigh the possible disadvantages. the second counterargument suggests that the argument in this article does not challenge rec schools but rather challenges choice reforms in general. this part also stresses that the challenges presented apply especially to rec charter schools and, therefore, even charter enthusiasts should be concerned about rec charter schools. part iv analyzes the role of law and its potential to mitigate the challenges depicted in part iii. it outlines three different strategies that state legislatures have adopted for contending with segregation: antidiscrimination (part iv-a); requiring reflective student composition (part iv-b); and shifting the focus to public schools (part iv-c). additionally, this part evaluates these strategies’ expected effectiveness in promoting educational equality. this article concludes that only provisions that require considering the effect charter schools will have on the wider educational environment have potential to mitigate the influences discussed above. such provisions enable education administrators to make sure that the advantages students derive from rec charter schools are not gained at the expense of students remaining in traditional public schools. whether such measures will, in fact, be effective depends on the way they are implemented and on their ability to withstand political pressure. ii. what are religious, ethnic, and cultural charter schools? a. charter schools and religious, ethnic, and cultural charter schools rec charter schools are merely one sub-category of charter schools, which are hybrids of public and private schools. although the charter movement is highly diverse and encompasses many different kinds of schools, charter schools share the following core dimensions: they are privately established and run schools of choice; they are publicly funded, free, and generally open to all students; they are not 10 columbia journal of race and law [vol. 7:1 subject to some of the rules and regulations that apply to traditional public schools; and they have autonomy in designing their curriculum and management, though they remain accountable for their students’ achievements.13 advocates of the charter movement argue that incorporating private elements into public education will bring about academic improvement, both for students studying in charter schools and for traditional public schools, which will be positively affected by the competition.14 autonomy and local control are basic tenets of charter schools. private organizations—free from some of the regulations that apply to public schools—establish and run charter schools.15 as a result, charter schools are able to accommodate the needs and preferences of the groups and communities they serve. publicly-funded choice is another central characteristic of charter schools. it aims to create competition and ensure all children have access to quality education, thus promoting equality of opportunity.16 13 joseph murphy & catherine dunn-shiffman, understanding and assessing the charter school movement, 3–5, 17, 51–55 (2002) (defining charter schools and describing various ideologies upon which different charter schools are built); jack buckley & mark schneider, charter schools: hope or hype? 2–3 (2007) (identifying the structural characteristics of charter schools). 14 see, e.g., yongmei ni & david arsen, the competitive effects of charter schools on public school districts, in the charter school experiment: expectations, evidence, and implications 93 (christopher a. lubienski & peter c. weitzel, eds., 2010) (addressing how competition from charter schools has affected public schools). 15 see murphy & shiffman, supra note 13, at 150–57 (discussing arguments that lack of regulation has affected the quality and efficiency of charter schools). but see jay heubert, schools without rules? charter schools, federal disability law, and the paradoxes of deregulation, 32 harv. c.r.-c.l. l. rev. 301 (1997) (noting that several federal rules apply to charter schools, such as those regarding discrimination and students with disabilities). there have been debates whether other rules regarding discipline and expulsion apply to charter schools. see infra note 24. 16 according to choice proponents, publicly-funded choice enables all children to choose quality education, an ability that was formerly available only to children of wealthy parents (who could, for example, buy a house in the “right” school district or enroll in a private school). see, e.g., no. 1:1] religious, ethnic, and cultural charter schools 11 since charter schools erupted onto america’s education landscape about two decades ago,17 they have dominated scholarly discussion of education, igniting endless research and debate. despite the abundance of educational research examining charter schools, the evidence regarding them is still inconclusive. do they indeed improve student performance?18 have they been a “rising tide that lifts all boats?” have they had a positive effect on public schools?19 murphy & shiffman, supra note 13, at 157; john e. chubb & terry m. moe, politics, markets & american’s schools 219–26 (1990) (publicly funded choice will expand opportunities for all children). 17 the first charter school opened its doors in september 1992 in st. paul, minnesota, and by the year 1998, there were over 1,000 nationwide. see murphy & shiffman, supra note 13, at 28, 32. by 2006, over 3,500 charter schools operated in thirty-seven states and served over a million students. see buckley & schneider, supra note 13, at 1. currently, only seven states have not legislated charter laws. charter school law, the ctr. for educ. reform, https://www.edreform.com/issues/choice-charter-schools/laws-legislation/ [https://perma.cc/d5xp-s3wu]. 18 eric p. bettinger, the effect of charter schools on charter students and public students, schools, 24 econ. of educ. rev. 133 (2005) (finding no significant effects of charter schools on charter school students’ performance compared to neighboring public school students); gary miron, performance of charter schools and implications for policy makers, in the charter school experiment, supra note 14, at 74, 87–89; expectations, evidence, and implications, 74, 87–89 (christopher a. lubienski & peter c. weitzel eds., 2010) (arguing that there is no conclusive evidence that charter schools are attaining better educational outcomes than traditional public schools). these disappointing outcomes are due to insufficient autonomy and funding, or, conversely, they can be attributed to insufficient supervision and to charter schools’ financial motivations. see martin carnoy et al., the charter school dust-up: examining the evidence on enrollment and achievement 106 (2005) (noting that, on average, no evidence shows that charter schools outperform regular public schools; and that evidence shows that charter schools, on average, have a negative impact). 19 see ni & arsen, supra note 14, at 118–19. scholars and researchers commonly use the “rising tide” metaphor in the debate concerning charter schools and competition between different types of schools. see, e.g., caroline m. hoxby, school choice and school productivity: could school choice be a tide that lifts all boats?, in nat’l bureau of econ. research conference report, the economics of school choice 287 (caroline m. hoxby ed., university of chicago press 12 columbia journal of race and law [vol. 7:1 are they more socially integrated than the typical public school?20 have they fulfilled the expectation of becoming laboratories of innovation in education?21 charter schools have also dominated legal scholarship and case law discussing various aspects of their operation, such as the constitutionality of charter schools,22 how they 74th ed. 2003) (examining three choice reforms and finding that regular public schools boosted their productivity when exposed to competition). 20 see infra part iii-b. 21 see murphy & shiffman, supra note 13, at 178–82 (arguing that charter schools have yet to prove that they promote educational innovation, at least in the sense of “breakthrough change”). it is possible that the competition over students has led charter schools to choose “tried and true” educational strategies, and consequently, charter schools have not created innovation. however, research shows that charter schools widen the use of new educational practices created within the public sector. see lubienski & weitzel, supra note 14, at 15, 21. carnoy et al. rightly point out that many charter schools bring “new players and resources into the public education sector, because their charters require them to identify “local stakeholders and partners.” carnoy et al., supra note 16, also point out that innovation and quality do not necessarily go together because experimentation in education, like in any other field, will inevitably yield both successful and unsuccessful results). see also lubienski, grading charter schools: access, innovation, and competition, in the charter school experiment 15, 23 (christopher a. lubienski & peter c. weitzel eds., 2010). 22 several courts have rejected arguments that charter schools violate relevant state constitutions and do not qualify for public funding. see, e.g., wilson v. state bd. of educ., 89 cal. rptr. 2d 745 (ct. app. 1999); council of orgs. & others for educ. about parochiaid, inc. v. governor, 566 n.w.2d 208 (mich. 1997); in re grant of the charter school application of englewood on the palisades charter school, 727 a.2d 15 (n.j. super. ct. app. div., 1999). see also chad a. readler et al., nat’l all. for pub. charter sch., we’ve been here before: charter school opponents use the same legal arguments and lose every time (2013), http://www.publiccharters.org/wp-content/uploads/2014/01/weve-beenhere-before_20131119t144720.pdf [https://perma.cc/pz6q-9dlk]. additionally, there are disagreements as to whether charter schools are state actors. see, e.g., caviness v. horizon cmty. learning center, inc., 590 f.3d 806, 808 (9th cir. 2010) (finding that “a private non-profit corporation that runs a charter school” was not a state actor while acting as an employer). no. 1:1] religious, ethnic, and cultural charter schools 13 should be funded,23 discipline in charter schools,24 accommodation of students with disabilities,25 and conflicts 23 given that educational resources are limited and all too often insufficient to begin with, adding thousands of new schools is a strain on a school district’s budget, so struggles are to be expected. as demonstrated in the cases below, states try to cope with added expenses in different ways such as funding charter schools less than traditional schools; withholding funding for charter school buildings; or by setting caps on the number of charter schools or enrolled students in each district. in reaction, charter school leaders claim that school districts discriminate against them, compared to other public schools, and that the financial support they receive is inadequate. see, e.g., sugar creek charter sch., inc. v. charlottemecklenburg bd. of educ., 195 n.c. app. 348, 349 (2009) (in which charter schools alleged that the manner in which the charlotte-mecklenburg board of education apportioned funds resulted in the underfunding of local charter schools). on the other hand, charter school opponents argue that school districts often favor charter schools, and that funding them causes harm to traditional public schools. see, e.g., jersey city educ. ass’n v. jersey city, 720 a.2d 356 (n.j. super. ct. app. div. 1998) (rejecting the claim that the use of public monies for a charter school building is prohibited); new york city parents union v. bd. of educ. of city sch. dist. of new york, 1 n.y.s.3d 76, 77 (n.y. app. div. 2015) (rejecting the argument that co-locating charter schools and traditional public schools violated the n.y. constitution and denied public schools students an adequate sound basic education). see also lisa lukasik, deconstructing a decade of charter school funding litigation: an argument for reform, 90 n.c. l. rev. 1885 (2012) (describing the decade-long legal struggle concerning charter school funding in north carolina); larry maloney, charter school finance, in handbook of research on school choice 179 (mark berends et al. eds., 2009) (finding mixed results after comparing levels of spending in traditional public schools and charter schools). 24 courts have exempted charter schools from holding hearings in student dismissal cases. these rulings compromise students’ rights and give charter schools more control over the students they educate. see, e.g., scott b. v. bd. of tr. of orange cty. high sch. of the arts (cal.), 158 cal. rptr. 3d 173 (cal. ct. app. 2013) (ruling charter schools exempt from a california law requiring due process hearing procedures for public school students prior to explusion); lindsey v. matayoshi, 950 f. supp. 2d 1159 (d. haw. 2013) (finding that the plaintiff, a student who was expelled from a charter school, was not denied her entitlement to public education because she was given access to an alternative program, and therefore was not entitled to a due process hearing). see also rosa k. hirji, are charter schools upholding student rights?, a.b.a.: sec. of litig. (jan. 14, 2014), http://apps.americanbar.org/litigation/committees/childrights/content/artic 14 columbia journal of race and law [vol. 7:1 that occur when charter and traditional public schools share buildings.26 it is clear, therefore, that the debate over the effectiveness of charter schools is still ongoing. meanwhile, more than two million students attend charter schools today, and demand for charter schools continues to grow.27 within this enormously diverse category of charter schools, this article focuses on one kind of charter school— rec charter schools. sometimes called religious charter les/winter2014-0114-charter-schools-upholding-student-rights.html [https://perma.cc/3v9v-zp5m] (discussing these decisions). 25 u.s. gov’t. accountability off., charter schools: additional federal attention needed to help protect access for students with disabilities (2012), http://www.gao.gov/assets/600/591435.pdf [https://perma.cc/b6uk-6xfs] (finding that “[c]harter schools enrolled a lower percentage of students with disabilities than traditional public schools”). 26 see fernanda santos, n.a.a.c.p on defensive as suit on charter schools splits group’s supporters, n.y. times (june 10, 2011), http://www.nytimes.com/2011/06/11/nyregion/naacp-on-defensive-for-suitagainst-charter-schools.html?_r=0 [https://perma.cc/kqm2-n64r]; carl companile & beth defalco, de blasio faces three new charter-school law suits, n.y. post (mar. 10, 2014), http://nypost.com/2014/03/10/de-blasiofaces-three-new-charter-school-lawsuits/ [https://perma.cc/spj9-nubn] (noting arguments that charter schools co-located with traditional public schools have better access to the common labs, gyms, libraries, cafeteria, computers, etc.). 27 according to the national alliance for public charter schools (napcs) published in the 2014-2015 school year, approximately 2.9 million students attended charter schools. nat’l all. for pub. charter sch., estimated number of public charter schools & students (2015), http://www.publiccharters.org/wpcontent/uploads/2015/02/open_closed_final.pdf [https://perma.cc/lgd6zfjm]. no. 1:1] religious, ethnic, and cultural charter schools 15 schools,28 “faith-based” charter schools,29 or “ethnocentric niche charter schools,”30 specific ethnic, cultural, and religious communities establish rec charter schools to offer education to community members according to their culture, historical perspectives, values, and customs.31 28 see benjamin siracusa hillman, note, is there a place for religious charter schools? 118 yale l.j. 554 (2008) (describing “religious charter schools”); lawrence d. weinberg, religious charter schools, legalities and practicalities (2007) (analyzing whether religious based charter schools could comport with the constitution); marcia. j. harr bailey & bruce s. cooper, the introduction of religious charter schools: a cultural movement in the private school sector, 18 j. of res. on christian educ. 272, 278–280 (2009) (describing several charter schools sponsored by religious communities and associations and calling them “religious charter schools”). 29 see charles j. russo & gerald m. cattero, faith-based charter schools: an idea whose time is unlikely to come, 13 cath. educ. 509 (2013) (arguing what authors call “faith-based” charter schools are unlikely to survive); craig n. horning, the intersection of religious charter schools and urban catholic education: a literature review, 16 cath. educ.: a j. of inquiry & prac. 364 (2013) (reviewing literature relating to catholic education and what author calls “religious” and “faith-based” charter schools). 30 see robert a. fox et al., the line between cultural education and religious education: do ethnocentric niche charter schools have a prayer?, 36 rev. of res. in educ., 282–83 (2012) (using the term “ethnocentric niche charter schools” to refer to niche charters formed “to foster an understanding of” and to instruct “from the point of view of, or help preserve a specific culture”). 31 see harr bailey & cooper, supra note 28, at 276 (noting that religious charter schools supplement the curriculum with cultural “perspectives, values, and customs”). fox et al. define them as schools that are “specifically established to foster an understanding of, provide instruction from the point of view of, or help preserve a specific culture such as native hawaiian, native american, or east african; ethnicity such as latino or somali; or language such as mandarin, yu’pik, towa, or hawaiian.” fox et al., supra note 30, at 283–84; eckes et al “charter schools that have been founded to serve the particular needs of a certain population” that center around religious or cultural uniqueness. see suzanne eckes, et al., legal and policy issues regarding niche charter schools: race, religion, culture, and the law, 5 j. of sch. choice 85, 105, n.1 (2011) (defining ethnocentric charter schools as “charter schools that have been founded to serve the particular needs of a certain population,” which in this context refers to those that center on religious or cultural uniqueness); siracusa hillman defines them as “a charter schools “operated by a religious 16 columbia journal of race and law [vol. 7:1 rec charter schools are a natural extension of the ideals of the charter school movement, which encourages the development of diverse schools with different and specialized missions. communities of parents organize to establish schools, and in so doing open up possibilities for localized and varied public education, according to their specific tastes and preferences.32 inevitably, religious, ethnic, and cultural communities that face financial difficulties in sustaining denominational education, seize the opportunity this movement offers thereby creating a new form of public education—rec charter schools. although a relatively new phenomenon, rec charter schools are already widespread and religiously, ethnically, and culturally diverse. rec charter schools have specialized organization or by a group of people bound by a common religious viewpoint.” siracusa hillman, supra note 28, at 561. 32 these groups can be organic, such as religious communities, but also ad-hoc groups that organize around a common educational goal and do not share a comprehensive identity. no. 1:1] religious, ethnic, and cultural charter schools 17 in arabic,33 hebrew,34 greek,35 hawaiian,36 mandarin,37 german,38 and turkish languages.39 some rec charter 33 the tareq ibn zeidan tarek ibn ziyad academy (“tiza”), which taught arabic in minnesota, is one prominent example. it will be discussed in further detail in this article. see infra part ii and part iii-e. see also harr bailey & cooper, supra note 28 (discussing tarek ibn ziyad academy). 34 there are at least two chains of hebrew charter schools; the hebrew charter school center supports nine hebrew charter schools around the country. see hebrew public, http://hebrewcharters.org [https://perma.cc/24ws-fldx]. the ben gamla hebrew charter school chain supports at least four charter schools in south florida. see ben gamla charter school south, http://www.bengamlaplantation.org [https://perma.cc/t2ku-ebzn]; ben gamla charter school plantation, http://www.bengamla-charter.com [https://perma.cc/2nd6-8dyq]; ben gamla charter school palm beach, http://www.bengamlapalmbeach.org [https://perma.cc/h6ql-l4ev]; ben gamla charter school kendall, http://www.bengamlakendall.org [https://perma.cc/7lm5-nlpn]. 35 see, e.g., hellenic classical charter school in brooklyn, ny, http://www.hccs-nys.org [https://perma.cc/lk4t-9n3d]. 36 nina k. buchanan & robert a. fox, to learn and to belong: case studies of emerging ethnocentric charter schools in hawaii, 11 educ. pol’y analysis archives (2003) (describing three native hawaiian charter schools). see also hawaiian-focused charter schools, http://www.ksbe.edu/communityeducation/site/programs/grades_58/charter_schools [https://perma.cc/zg37-eatv] (reporting that as of 2012 there were seventeen hawaiian focused public charter schools in hawaii). 37 see, e.g., about us, pioneer valley chinese immersion charter school, http://www.pvcics.org/about-us [https://perma.cc/fx86-65ll]. see also chinese immersion schools, https://miparentscouncil.org/fullmandarin-immersion-school-list/ [https://perma.cc/njg7-w427] (listing chinese immersion programs nationwide). 38 see, e.g., the goethe international charter school of los angeles, http://www.goethecharterschool.org [https://perma.cc/f6qbyfng] (offering english/german dual language immersion); twin cities german immersion school in minnesota, http://tcgis.org [https://perma.cc/gvc8-lxsd]; rilke schule german school of arts and science in alaska, http://rilkeschule.asdk12.org/ [https://perma.cc/7sqk6n6z] (focusing on the german language). 39 the “harmony” network of charter schools was established by turkish expatriates. see citizens against special interest lobbying in public schools, a guide to the gulen movement's activities in the us, http://turkishinvitations.weebly.com [https://perma.cc/pp64-gqqw]. according to websites operated by people who oppose the network there are currently 140 schools belonging to the network operating in twenty-six states. see infra, note 88. 18 columbia journal of race and law [vol. 7:1 schools are established by native american,40 native alaskan,41 and hmong42 communities. others are associated with the waldorf approach43 or the catholic church.44 the exact number of rec charter schools in the united states is unknown, and depends on the exact definition used. in 2009, one study estimated that there were as many as 113 charter 40 by 2010, thirty-one charter schools were established in native american reservations, accounting for fifteen percent of all public schools in reservations. national alliance for public charter schools, public charter schools growing on native american reservations (aug. 15, 2013), http://www.publiccharters.org/press/public-charter-schools-growing-nativeamerican-reservations/ [https://perma.cc/55mz-xcwj]. 41 see, e.g., alaska native cultural charter school, http://www.publiccharters.org/wpcontent/uploads/2015/07/csp_template_anccs_web.pdf [https://perma.cc/6ys5-jyqe] (offering courses in yup’ik and other native alaskan languages); yup’ik immersion school in bethel, alaska started as a program within a public school and gained charter status in 1999. yup’ik immersion school history, http://web2.lksd.org/ayaprun/ayaprun_elitnaurvik/school_history.html [https://perma.cc/hv4k-ke43]. 42 in minnesota alone there are at least seven charter schools focusing on hmong language and culture designed to serve the large hmong population that arrived from laos in the 1970s. see harr bailey & cooper, supra note 28, at 281–82. 43 see e.g., woodland charter school in south oregon, http://www.woodlandcharterschool.org [https://perma.cc/8ffl-hlw6] (a tuition-free public school offering a waldorf education); see also alliance for public waldorf education, http://www.allianceforpublicwaldorfeducation.org/ [https://perma.cc/3gvdq2qc] (a national alliance of schools and organizations committed to quality public waldorf education). the waldorf approach is based on an understanding of the human being as a being of body, soul, and spirit, not primarily as members of any specific nation, ethnic group or race, but as members of humanity. the education mirrors the basic stages of a child’s development from childhood to adulthood, and is adapted to the age of the child—experience, play, and art for younger children, and scientific, observational, and experimentation in the older years. see association of waldorf schools of north america, waldorf education: an introduction, https://waldorfeducation.org/waldorf_education [https://perma.cc/h3ln9pjb]. 44 see bruce s. cooper et al., finding a golden mean in education policy: centering religious and public schools, 87 peabody j. of educ. 368 (2012). no. 1:1] religious, ethnic, and cultural charter schools 19 schools with a central cultural theme in their mission.45 but the number is probably much higher, and growing.46 though there are differences between charter schools that serve various religious groups, linguistic and ethnic minority groups, and groups that share cultural or ideological identities, this article argues that these charter schools share important similarities in their potential to influence educational equality. therefore, this article refers to all of these schools using the term “rec charter schools.”47 the differences between various rec charter schools include the motivation for their establishment,48 as well as their respective curriculums.49 another important distinction concerns the socioeconomic status of the religious or ethnic communities different rec charter schools serve—from disadvantaged minorities to wealthy communities. despite seemingly significant differences between rec charter 45 see eckes et al., supra note 31. 46 to my understanding, eckes et al. do not refer to the harmony network of schools that have established over 130 charter schools nationwide. including these schools in the count therefore more than doubles their estimate. id. 47 i also include in the category charter schools established by communities that share any other core identity, such as an ideology or way of life. when the argument applies only to a certain kind of charter school, i will state which kind of school it applies to explicitly. for example, when discussing first amendment issues (part ii-c), i refer to charter schools that serve religious groups and not cultural communities. however, the distinctions between religious cultural and ethnic are not always clear-cut, and are often disputed, partly because some religious groups are also distinct ethnic and cultural groups. there has also been controversy regarding the establishment of a waldorf charter school based on the anthroposophic approach, due to the disagreement whether the approach is a religious belief or an ideological way of life. see infra note 87. 48 for example, the financial crisis that parochial schools face is a motivation that applies mostly to religious charter schools because cultural communities rarely establish private schools. see infra part ii-b. 49 charter schools that teach a foreign language are an example of a unique curriculum that is not offered in traditional public schools. 20 columbia journal of race and law [vol. 7:1 schools and the communities they serve, they cause similar effects in terms of student composition.50 b. explaining the popularity of religious, ethnic, and cultural charter schools there are several reasons why rec charter schools are increasingly popular. one explanation is the continuous and severe financial strain that religious communities face in funding parochial education. between 2000 and 2006 alone, some 1200 private parochial schools closed due to financial problems and many others struggled to meet their financial obligations.51 as parochial education becomes more expensive and rapidly loses financial viability, religious communities have adopted practical alternatives to fund religious schooling, such as voucher programs that direct public funding to private schools through parental choice. they have also established rec charter schools, publicly funded schools that nonetheless give religious communities autonomy to design their educational mission and control hiring of educational staff and management.52 in this sense, the charter movement enables religious communities to replicate the religious school systems they can no longer afford. many religious charter schools have replaced closing private parochial schools. ekhla is one example. after 50 namely, they potentially induce the concentration of disadvantaged students in the traditional public schools. in privileged communities this phenomenon is characterized as “creaming” whereas in disadvantaged communities this is characterized as “cropping.” 51 see russo & cattaro, supra note 29, at 518; margaret f. brinig & nicole stelle garnett, catholic schools, charter schools, and urban neighborhoods, 79 u. chi. l. rev. 31, 31–32 (2012) (stating that over 1,600 catholic schools have closed in the past two decades). 52 the choice between charter schools and voucher programs depend on different variables. for example, although vouchers enable the schools to maintain more of their religious characteristics (albeit not completely, either), their funding may be lower than that of charter schools, and only the voucher students are funded, whereas in charter schools all students are funded. no. 1:1] religious, ethnic, and cultural charter schools 21 being hit by the financial crisis in catholic education, many private catholic schools have also converted into charter schools.53 while removing explicit references to religion, these catholic charter schools maintain a staggering resemblance to their predecessors, often serving the same students; hiring the same teachers; and using the same facilities as the parochial schools they replaced.54 other communities also have taken advantage of the option to create specialized, publicly-funded schools to strengthen their culture and heritage. education is an effective way to ensure the inculcation of a minority group’s language, culture, and values. hawaiian, african-american, and native american communities are therefore eager to establish rec charter schools.55 religious, ethnic, and cultural communities may also be motivated to establish specialized charter schools because of the disadvantages that racial, ethnic, linguistic, and religious minority children face in public schools. for example, public schools’ calendars do not always accommodate different religious holidays, forcing students from religious minority groups to either miss school or 53 see cooper et al., supra note 44, at 371–374; brinig & garnett, supra note 51; horning, supra note 29; nicolle stelle garnett, are charters enough choice? school choice and the future of catholic schools, 87 notre dame l. rev 1891 (2012); fox et al., give the example of center city public charter schools in washington, dc that operates six former catholic schools and proposed the conversion of four catholic schools in brooklyn, ny. see supra note 30, at 284. 54 see cooper et al., supra note 44, at 371; aaron saiger, charter schools, the establishment clause and the neoliberal turn in public education, 34 cardozo l. rev. 1163 (2013). another example is the hellenic classical charter school in nyc, founded in 2005 in place of a greek orthodox parochial school. though it lacks formal religious instruction, the atmosphere at school has been described as resembling that of a religious school–traditional and disciplined. the school teaches greek language, history and literature as well as latin. see harr bailey & cooper, supra note 28, at 281. 55 for hawaii charter schools, see supra note 36. for native american charter schools, see supra note 40. 22 columbia journal of race and law [vol. 7:1 compromise their religious obligations. also, the content of the school curriculum may, at times, be in tension with the students’ values and beliefs. the dress norms at public schools and especially those required for physical education (“pe”) may be at odds with religious norms. issues of gender separation, in general or in pe, may be significant for certain religious and cultural groups. while public schools may accommodate religious students by granting individual exemptions in certain cases,56 this may entail excluding the student from the educational activity. religious charter schools, on the other hand, accommodate the needs and preferences of the religious communities they serve. school calendars and schedules do not clash with the religious holidays and obligations;57 cafeteria food suits religious requirements; and religious charter schools even adapt curriculum to include content that community members value (and exclude content that they do not). they also adjust school activities such as pe or health education to avoid conflicts with students’ religious convictions.58 as a result, a religious charter school may be much more comfortable and inviting for religious students. interestingly, these seemingly advantageous traits are sometimes subject to attacks from members of the religious minority group. objectors regard rec charter schools as a severe threat to struggling parochial schools because they make it more difficult for parochial private schools to attract 56 not all exemptions, however, would be allowed. see mozert v. hawkins cty. bd. of educ., 827 f.2d 1058 (6th cir. 1987) in which the court did not grant exemptions from parts of the reading curriculum. 57 although rec charter schools are not uniform on this point. for example, ben gamla charter school does not close on the jewish holidays and follows the official county calendar instead. see siracusa hillman, supra note 28, at 570. on the other hand, ekhla does, see supra note 6. 58 kalasmi charter school in minnesota offers gender segregated gym classes, an issue that is crucial for its muslim students. see fox supra note 30, at 290. no. 1:1] religious, ethnic, and cultural charter schools 23 students and donors.59 opponents from within also bemoan the loss of rigorous religious instruction that newlyestablished public charter schools cannot maintain.60 children from disadvantaged religious, cultural, and ethnic minority groups suffer further disadvantages in public schools that rec charter schools may be able to solve. cultural and linguistic differences between children from minority communities and their teachers and peers may result in negative effects on children’s academic performance. as a result of these differences, children from disadvantaged minority groups are also more likely to be diagnosed (and misdiagnosed) with disabilities, especially when these diagnoses rely on teacher evaluation.61 biases against children from racial and ethnic minority groups are deeply embedded in schools, making even integrated schools potentially discriminatory.62 some rec charter schools expressly seek to avoid this problem, and some of them state this aim explicitly. hmong academy, a charter school located in st. paul, minnesota established for children originally from laos, states in its mission that, although “many students are performing satisfactorily in public schools, many remain behind grade level, hampered by linguistic and cultural differences.”63 this school aims to provide “opportunities for 59 this applies to cases in which the rec charter schools do not replace them altogether, and when there are still parochial schools that compete with the new charter schools. 60 religious charter schools may only accommodate religion, as opposed to private denominational schools that can actively endorse religion and offer a comprehensive religious education. for detail, see infra part ii. for these claims concerning catholic schools see horning, supra note 29. for a similar objection regarding hebrew charter school, see siracusa hillman, supra note 28, at 571. see also russo & cattero, supra note 29, at 83, 85–86. 61 see robert a. garda jr., the new idea: shifting educational paradigms to achieve racial equality in special education, 56 ala. l. rev. 1071 (2005). 62 see infra note 104. 63 harr bailey & cooper, supra note 28, at 282. 24 columbia journal of race and law [vol. 7:1 improved pupil learning that are too often missing in other schools.”64 in addition, students from disadvantaged racial and ethnic communities often experience problems in traditional public schools that make rec charter schools attractive.65 these children are far more likely than their ethnic majority peers to attend run-down, underfunded schools that lack qualified teachers and advanced academic curricula.66 with inadequate public education and unaffordable private education, charter schools have become an attractive option for members of these communities, and they offer hope of a better education. the tarek ibn ziyad academy (“tiza”) was an arab charter school based in inver grove heights, minnesota.67 the students at tiza, a majority of whom were muslim of somali origin, transferred from highly segregated and inadequate public schools, where most students have very low educational attainment as well as truancy and disciplinary problems. in the short time it operated, tiza demonstrated remarkable improvement in student achievement, outperforming even some of the suburban schools in its district.68 64 id. 65 although the problems that different disadvantaged communities face vary according to their specific circumstances and history (slavery, immigration, poverty, etc.), they share many of the educational challenges. 66 see, e.g., jonathan kozol, the shame of the nation: the restoration of apartheid schooling in america (2005), ch. 5 (indicating that inner city schools focus on test preparation to the exclusion of art, geography and even science) & ch. 7 (detailing the poor conditions in inner city schools, that lack basic supplies, classroom space and heating). 67 the tiza case will be discussed at length in infra part ii. 68 see harr bailey & cooper, supra note 28, at 279. the school eventually closed in 2011, after their sponsor, the islamic relief non-profit, was disqualified under the 2009 legal ban of out-of-state sponsors, and the school failed to find an alternative sponsor. the refusal of other entities to undertake sponsoring the school was directly linked to the controversy regarding its islamic identity. id. no. 1:1] religious, ethnic, and cultural charter schools 25 religious and ethnic minority students also often experience social exclusion in public schools, especially when their religion requires them to dress and eat differently than most of their peers and abstain from participating in afterschool activities.69 children may feel out of place, excluded, misunderstood, and silenced. these feelings negatively affect their social and psychological wellbeing and have dire consequences in terms of their academic development and the roles they assume in society as adults. negative experiences in school diminish children’s self-esteem and curtail their selfexpectations, and thus are destructive for their future. therefore, despite the traditional ethos of public education as a socially unifying force charged with fostering tolerance amidst diversity, the everyday experiences of minority group children in public schools are often ones of exclusion and alienation. rec charter schools grant children from minority communities opportunities to feel like they belong and take pride in their heritage and identity. although these children remain part of minority groups in larger society, rec charter schools aim to provide them with a safe haven where people do not mock them for their different traditions; where they are understood; and where their language and culture are dominant. when rec charter schools are successful, they enable children of religious, ethnic, and cultural minority groups to thrive, succeed, and develop self-esteem and leadership skills. minority children in rec charter schools can “shed their old roles as oppositional and low performing and . . . take on new images as leaders, role models and scholars.”70 their positive experiences in school help develop 69 see fox, supra note 30 (finding that as a result of these differences, schools become key sites of tension for muslim adolescent newcomers). 70 according to fox et al., the tiza and kalasmi charter school, another minnesota based ethnocentric charter school that serves east african immigrants, “promoted positive socialization where students were able to build a good self concept and find comfort in who they are as east african immigrants and as muslims while they also established their 26 columbia journal of race and law [vol. 7:1 positive attitudes toward public institutions, trust others, and gain confidence, all of which are critical for their development as participatory and involved citizens.71 one final motivation may drive parents in religious or cultural minority groups—especially those from affluent socioeconomic backgrounds—to establish rec charter schools, creating severe concerns that are the focus of this article: a desire to evade the racial and socioeconomic integration in public schools and create enclaves where middle class children study together at the public’s expense.72 for example, hebrew charter schools not only offer a curriculum that focuses on jewish culture, but they also guarantee that students will study among a relatively homogeneous population of middle class and non-racial minority students, much as one would expect in a jewish private day school.73 segregationist motivations—rather than bona fide religious ones—and their troubling outcomes have long been a driving force behind private denominational education worldwide. in picking a school for their children to attend, parents equally prioritize academic excellence and religious identity as american citizens . . . and develop confidence in their abilities to become full and equal members of us society.” see supra note 30, at 287– 88; see also eckes et al, supra note 31, at 86–87; harr bailey & cooper, supra note 28. but see galston alonso et al., our schools suck: students talk back to a segregated nation on the failures of urban education (2009), 4–6, 31–67 (arguing that minority children do not, in fact, have negative and oppositional attitudes toward schools and toward education). 71 for the same reason, the national indian education association adopted a resolution to support charter schools for native hawaiian, american indians, and alaska natives, recognizing that these schools can release students from negative experiences of exclusion. see eckes, supra note 31 at 87. 72 see clotfelter, supra note 9 at 110. 73 although religious charter schools are required to accept children that are not members of the religious community and are not allowed to charge tuition, i argue that they are still likely to be relatively homogeneous. for a detailed explanation, see infra part iii-b. no. 1:1] religious, ethnic, and cultural charter schools 27 education.74 in the post-brown v. board of education75 era, parents seeking racially segregated education turned to private schools in order to avoid desegregation, and sectarian schools proved better equipped to maintain racial segregation than secular ones.76 rec charter schools are merely the newest version of this age-old motivation. as this article describes in part iii, the composition of the student body has a significant effect on the quality of education offered in the school and on children’s educational achievement. therefore, religious, ethnic, and cultural minority parents often prefer to 74 this is the case in certain european countries, where religious schools thrive despite rapid secularization of society. religious schools are losing their religious uniqueness and differ from public schools mainly in their preferable academic quality and the fact that they serve children from privileged backgrounds. see jaap dronkers, do public and religious schools really differ? assessing the european evidence, educating citizens: international perspectives on civic values and school choice 287–312 (patrick j. wolf & stephen macedo eds., 2004); denis meuret, school choice and its regulation in france, id, at 238. see also tammy harel ben shahar & eyal berger, religious justification elitist outcome: torani schools in israel (sept. 18, 2016) (unpublished manuscript), http://papers.ssrn.com/sol3/cf_dev/absbyauth.cfm?per_id=2565876 [https://perma.cc/4bak-zskv] (providing empirical support that a certain kind of religious public school in israel (torani schools) is being used as a means for avoiding integration). 75 347 u.s. 483 (1954). 76 clotfelter, supra note 9, at 103, 109; martha minow, confronting the seduction of choice: law, education and american pluralism, 120 yale l.j. 814, 821–24 (2011). seeking segregation in private schools proved unsuccessful when the supreme court ruled in runyon v. mccrary, 27 u.s. 160 (1976), that a private school could not refuse to accept a black student. runyon, however, concerned a non-sectarian private school. in two later cases, the court struck down two such decisions of private denominational schools, stating that the decisions were not based on a bona fide religious conviction, but rather resulted from racist motivations. while not allowing racial segregation in the specific cases, the decisions do imply that had such a religious claim been substantiated, discrimination may have been permitted. see evan h. zucker, note, section 1981 after runyon v. mccrary: the free exercise right of private sectarian schools to deny admission to blacks on account of race, 1977 duke l.j. 1219 (1978) (describing these cases and arguing that the interest in eliminating racial discrimination outweighs free exercise rights). see also brown v. bd. of educ., 347 u.s. 483 (1954). 28 columbia journal of race and law [vol. 7:1 enroll their children in schools that do not serve many disadvantaged children. there are various strategies to achieve this goal, such as living in a segregated neighborhood or enrolling in a private school. rec charter schools enable parents to achieve this goal without incurring the costs associated with these strategies. the paragraphs above detailed the advantages that rec charter schools hold for their communities, and the motivations members of religious and ethnic communities may have in establishing them. not every single motivation applies to every minority community and charter school. for example, disadvantaged religious and ethnic minority groups are more likely to suffer from inadequate traditional public school systems than privileged religious groups; and not all religious communities experience contradictions between their culture and values and those expressed in public schools. still, as this article further argues in part iii, rec charter schools as a whole create similar educational processes that justify an amalgamated discussion. furthermore, while some of the motivations for establishing these schools are commendable, rec charter schools nonetheless raise significant legal and normative challenges. c. rec charter schools and the establishment clause rec charter schools pose serious challenges for public education in the united states. the concern that has elicited the most public and scholarly attention involves only religious (or faith-based) charter schools. religious charter schools pose a threat to the united states constitution’s longstanding commitment to secular public education and religious neutrality, found in the establishment clause of the first amendment.77 against this constitutional backdrop, religious 77 u.s. const. amend. i. no. 1:1] religious, ethnic, and cultural charter schools 29 charter schools may appear to be an oxymoron.78 indeed, some of the strongest objections to religious charter schools are based on their apparent violation of the prohibition of the establishment of religion.79 while courts have fluctuated their approaches to religion in establishment clause cases,80 establishment clause jurisprudence is becoming more permissive of both religious activities allowed within public schools81 and the transfer of public funds to religious institutions.82 a majority 78 federal law conditions federal funding for charter schools on their being non-sectarian and not affiliated with religious institutions (20 u.s.c. § 7221i (2)(e) (2012)). some states also explicitly prohibit religious institutions from founding charter schools. however, these restrictions can be overcome by creating a clear organizational divide between the sectarian organization and the school. the more challenging issues are those of substance, restricting religious instruction. these will be referred to shortly. 79 i am assuming that charter schools are public schools and that the first amendment applies to them. siracusa hillman notes that this question is “unsettled.” see supra note 28, at 561. see also supra note 22. 80 see russo & cattaro supra note 29, at 512–17 who describe three phases in court jurisprudence regarding public financial support for religious institutions including schools. in addition to suggested fluctuations and developments, first amendment doctrine is notoriously vague, declared by courts as being in “hopeless disarray” and “suffering from a sort of jurisprudential schizophrenia.” id. at 510–11. 81 the traditional test that courts use is the three pronged test set in lemon v. kurtzman, 403 u.s 602 (1971), according to which in order to survive scrutiny the government action (a) must have a secular purpose; (b) must not have the primary effect of either advancing or inhibiting religion; and (c) must not result in an excessive government entanglement with religion. over the years the court has relaxed the test, especially the third prong. see eckes, supra note 31. 82 the growing tolerance to public funding of parochial schools culminated in the 2002 supreme court decision in zelman v. simmonsharris, 536 u.s. 639 (2002), in which a majority of five upheld a voucher scheme in ohio that included private religious schools. the court reasoned that the voucher scheme did not violate the first amendment despite the passage of public money to religious schools because the state funding was intermediated by individual choice. for a critique of zelman v. simmonsharris see moshe cohen-eliya & yoav hammer, an argument from democracy against school choice: a critique of zelman v. simmons-harris, 30 columbia journal of race and law [vol. 7:1 of legal scholars conclude that, so long as religious charter schools do not endorse but merely accommodate religion,83 and operate independent of religious institutions,84 they should withstand first amendment challenges.85 courts have verified these predictions in several cases.86 still, there are 49 loyola l.rev. 859 (2003) (arguing that funding religious schools through voucher systems jeopardizes democratic stability). 83 “accommodation v. endorsement” is the terminology used by siracusa hillman, based on the lemon decision. see supra note 28, at 562. see also sarah m. isgur, note, “play in the joints:” the struggle to define permissive accommodation under the first amendment, 31 harv. j.l. & pub. pol’y 371, 373–79 (2008). 84 as required by federal law, see supra note 78. 85 other writers, however, disagree with this conclusion. gabrielle marie d’adamo, for example, argues that religious charter schools should be found unconstitutional. she explicitly refers to the ben gamla and khalil gibran international academy in brooklyn (which is not a charter school). see gabrielle marie d’adamo, note, separatism in the age of public school choice: a constitutional analysis, 58 emory l.j. 547 (2008). russo & cattero also question the constitutionality of religious charter schools. writing in 2009, they estimate that religious charter schools will meet insurmountable constitutional barriers and are therefore unlikely to succeed. they point to various legal issues that should prove difficult, such as governance, oversight, place of prayer and religious activity within schools, admission of non-member students, and employment of staff. see supra note 29, at 521. on the other hand, there are scholars who believe that the courts have not gone far enough and that in light of zelman, publicly funded religious charter schools should be allowed to engage in explicit religious activity, rather than merely accommodating religious students or teaching about religions as a culture. see saiger, supra note 54. 86 aclu of minnesota v. tiza, no. 09-138 (d. minn. filed oct. 1, 2010) (denying a motion to dismiss in which the aclu argued that tiza was endorsing islam). the suit was dropped eventually once the school closed. see siracusa-hillman, supra note 28, at 567; harr-bailey & cooper, supra note 28, at 278–80; horning, supra note 29, 372 (all discussing the tiza case). daugherty v. vanguard charter sch. acad., 116 f. supp. 2d. 897 (w.d. mich. 2000) (finding that so long as the school’s practices were voluntary, not led by school staff, and as long as the school did not discriminate between different groups, praying, reading the bible, and distributing religious material do not violate the first amendment. in porta v. klagholz, 19 f. supp. 2d 290 (d. n.j. 1998), a new jersey court found that leasing a building from a church did not violate the first amendment. it should be noted, however, that some state constitutions are more restrictive with regard to the establishment of religion than the federal no. 1:1] religious, ethnic, and cultural charter schools 31 cases of public objections and disputes between schools and departments of education both at the chartering stage,87 and after their establishment.88 constitution. see fox et al., supra note 30, at 286; and russo & cataro, supra note 29, at 511. for example, although the federal court allows religious schools to participate in voucher schemes, some states do not. see e.g., bush v. holmes, 919 so. 2d 392 (fla. 2006) (in which florida’s supreme court invalidated a voucher program that included religious schools). adopting these more restrictive approaches may, however, raise objections from the opposite direction, namely that denying the ability to establish a religious charter school, when it is allowed by the federal constitution, violates the freedom of religion also enshrined in the first amendment. the differences between federal and state rules can also refer to the rules regarding who may sponsor/authorize charter schools. some states restrict the authorizers so that religious entities cannot sponsor charter schools. see e.g., minn. stat. § 124d.10 (2015); subd. 3.5; 10 (b)(2) that was amended in 2009; brookwood presbyterian church v. ohio dept. of edn., 2013-ohio3260 (2013) (in which it was decided that brookwood presbytarian church was not an “education oriented entity” as the law requires but rather a religious institution, and therefore could not become a charter school sponsor). 87 a charter for a school based on the waldorf approach (associated with the anthroposophic movement), for example, was denied in oakland, california, based, among other things, on the assertion that the suggested school was religious. see liz ditz, publicly funded waldorf education (oct. 23, 2010), http://lizditz.typepad.com/i_speak_of_dreams/2010/10/publiclyfunded-waldorf-education.html [https://perma.cc/y5pg-nwks]; debra snells, people for legal and nonsectarian schools (plans), http://www.waldorfcritics.org [https://perma.cc/7jx5-ezsn]; the education report, a waldorf-inspired public charter school in oakland? not likely (jan. 19, 2010), http://bigeducationape.blogspot.com/2010/01/waldorfinspired-public-charter-school.html [https://perma.cc/3fsw-px7e]. although the school was eventually authorized the following year. see community school for creative education, http://www.communityschoolforcreativeeducation.org/ [https://perma.cc/6xsw-bsat]. other waldorf schools have also been authorized such as the woodland charter school in south oregon. see woodland charter school, http://www.woodlandcharterschool.org [https://perma.cc/arv5-mmel]. 88 several websites are active in opposition to harmony charter school network, which focuses on turkish culture and language, and argue that they preach islam. see citizens against special interest lobbying in public schools, proposed gulen charter schools (dec. 3, 2014), http://gulencharterschools.weebly.com/proposed-gulen-charterschools.html [https://perma.cc/za56-es9x]. the broward county school 32 columbia journal of race and law [vol. 7:1 in terms of the daily practices and curricula, charter schools, like other public schools, are not allowed to mandate praying or teaching of religious texts while endorsing their divine truth,89 charter schools can integrate the secular teaching of religious texts into their curricula, focusing on the cultural and historical aspects of these texts. additionally, the first amendment does not prohibit charter schools from teaching foreign languages, even when those languages are historically associated with certain religions (i.e., hebrew, arabic).90 charter schools may also accommodate studentinitiated prayer in school by designating a space within the school for it91 and adopt certain educational values that coincide with values that feature in certain religious beliefs.92 board in florida ordered the ben gamla hebrew charter school to suspend all its hebrew lessons due to the concern that they were used for teaching judaism. hebrew classes were reinstated only when the board was satisfied that the content was purely secular. sharon higgins, charter school scandals: ben gamla, http://charterschoolscandals.blogspot.co.il/2010/07/ben-gamla-charterschool.html [https://perma.cc/t986-h8yf]. see also harr bailey & cooper, supra note 28, at 284–85. hawaiian charter schools begin their school day with an incantation recited by all teachers and students. hawaiian leaders explain that this is a cultural protocol rather than a prayer, that has secular goals such as focusing students’ attention on school, demonstrating respect for the school and teachers, preparing students to engage in the work ahead, and connecting the students to the hawaiian culture. however, critics have argued that this is compulsory praying and should be prohibited. eckes et. al., legal and policy issues regarding niche charter schools: race, religion, culture, and the law, 5 j. of sch. choice 85, 94 (2011); fox et al., supra note 30, at 291–96. 89 see lee v. weisman, 505 u.s 577 (1992) (ruling that public schools may not sponsor student prayer even if the prayer is nondenominational); doe v. human, 725 f. supp. 1503 (w.d. ark. 1989) (stating that public schools may not teach the bible as religious dogma). 90 see meyer v. nebraska, 262 u.s. 390 (1923) (invalidating a law that restricted the use of a foreign language as the language of instruction as well as foreign language instruction under a certain age). meyer was a teacher in a one-room parochial school who taught the bible in german, and was fined for this act. 91 see harr-bailey and cooper, supra note 28, at 277; weinberg, supra note 28, at 21. a school might also be allowed to allot time for prayers so that they do not clash with other school activities. 92 see horning, supra note 29, at 370; weinberg, supra note 28. no. 1:1] religious, ethnic, and cultural charter schools 33 religious charter schools cannot display religious elements or symbols, except during religion classes that take place in the school93 before and after the school day.94 finally, religious charter schools cannot discriminate in hiring teachers, though they may require certain behavior within the school in accordance with the charter school’s worldview.95 given these restrictions on the practice and teaching of religion, it is ultimately up to each religious community to decide whether religious charter schools are—all things considered—a desirable educational option for them. iii. rec charter schools and equal educational opportunity while religious charter schools may face challenges concerning the first amendment, attention to another significant concern rec charter schools raise is long overdue.96 the remainder of this article examines rec charter schools’ effects on educational equality of opportunity. part iii describes the educational processes that give rise to the concern, and part iv analyzes state charter school legislation in states and its ability to contend with these processes. opponents of the charter school movement are concerned that charter schools worsen inequality and segregation. rec charter schools are especially susceptible to these problems, much more so than other charter schools. they are more likely to be racially and socioeconomically 93 see harr-bailey & cooper, supra note 28, at 277. 94 id. 95 id. 96 suzanne eckes has referred to the concern that these schools may engage in direct ethnic or religious discrimination of prospective students or teachers. however, the critique i put forward here goes far beyond this concern, and persists even if religious schools comply with antidiscrimination rules. see suzanne e. eckes, charter school legislation and the potential to influence student body diversity, in lubienski & weitzel, supra note 14, at 51–71. 34 columbia journal of race and law [vol. 7:1 segregated and are also more likely than other charter schools to induce two related phenomena—creaming and cropping— that negatively impact education in public schools. in order to appreciate the severity of segregation, creaming, and cropping, it is first necessary to stress the importance of student composition for equal educational opportunity. a. student composition: the peer effect several different factors affect the quality of education students receive. the factor most often discussed is funding, and structural inequalities that cause disparity in resource allocation have justly been the focus of much legal attention. this article focuses, however, on another factor influencing the quality of education, namely on student composition. education is a unique good, in which the quality of the outcome depends on the identity of the consumers. studying in a class with bright and motivated peers who cultivate academic aspirations and share their cultural capital improves student achievement.97 some researchers argue that, taken alone, the “peer group effect” is the most important factor influencing educational outcome.98 as a result, grouping together high ability students improves education. the peer effect explains part of the “private school effect,” the advantage that private schools demonstrate in student achievement.99 private schools enjoy higher student achievement, in part, because they concentrate high achievers 97 gary orfield & chugmei lee, why segregation matters: poverty and educational inequality 15–16 (2005). 98 this factor was first highlighted in the coleman report in 1966. james s. coleman, the concept of equality of education opportunity, 38 harv. educ. rev. (1967). see also kirk a. johnson, the peer effect on academic achievement among public elementary school students (2000); for updated evidence from five different countries, and between schools with different characteristics, ownership, funding, and enrollment, see ron w. zimmer & eugenia f. toma, peer effects in private and public schools across countries, 19 j. pol’y analysis & mgmt. 75 (2000). 99 together with their ses and race, this arguably explains the advantage of private schools. see lubienski & lubienski, supra note 7. no. 1:1] religious, ethnic, and cultural charter schools 35 who create positive peer effects. the peer effect also explains why grouping together children with low ability causes a further deterioration in their educational achievements. in addition to having inferior educational prospects, they are not exposed to the advantages of highly talented and motivated peers, and this, in turn, adversely affects the quality of the education they receive.100 students’ academic ability is correlated with their background circumstances. the academic abilities and attainments (as expressed in test scores and evaluations) of students from affluent families tend to be higher than those of students from low-income families.101 several structural conditions lead to this outcome. students from poorer backgrounds are less likely to have adequate health care and nutrition.102 they are more likely to be exposed to violence, family crisis and unrest, and other situations that impede their capacity for uninterrupted learning. their parents are less likely to be involved in their children’s education, and to be able to assist them with their homework as they are themselves less educated, and may be working multiple jobs.103 they typically own fewer books, have not been read to as infants as much as their middle class peers, and their 100 see orfield & lee, supra note 97, at 15. 101 see e.g., richard d. kahlenberg, socioeconomic school integration 85 n.c. l. rev 1545 (2006-2007); richard d. kahlenberg, all together now: creating middle-class schools through public school choice 25–35 (2001) (citing numerous studies finding that a school's socioeconomic status is second only to social background as a determinant of students’ academic successes); russell w. rumberger & gregory j. palardy, does segregation still matter? the impact of student composition on academic achievement in high school, 107 tchrs. c. rec 1999, 2014 (2005) (finding that students’ and school ses are equally influential); and richard rothstein, class and schools 37–47 (2004) (arguing that students from lower ses are less likely to have adequate health care and adequate conditions for learning). 102 see rothstein, id. 103 annete lareau, unequal childhoods: class race and family life (second edition with an update a decade later 1–6 (2011). 36 columbia journal of race and law [vol. 7:1 parents are less likely to engage with them in cognitively stimulating activities. what follows is that grouping together students according to social class (for example, when neighborhoods are segregated) also entails grouping together students according to academic ability, and vice-versa.104 in other words, social segregation further compromises the educational opportunities of disadvantaged children. accordingly, schools that serve middle class communities are likely to serve a higher percentage of high achievers, and the positive peer effects in these schools are likely to induce further educational benefits. grouping together high achievers from affluent families also reinforces disparities in the allocation of educational resources. schools that educate high achievers attract better teachers,105 so schools that serve disadvantaged 104 accordingly, there is a large body of research that shows that ability grouping results in socioeconomic segregation. see daniel j. losen, silent segregation in our nation’s schools, 34 harv. c.r.-c.l. l. rev. 517 (1999); george ansalone, schooling, tracking, and inequality, 7(1) j. child. & poverty 33 (2001); jeannie oakes, two cities’ tracking and withinschool segregation, 96 tchr. c. rec. 681 (1995); anthony d. greene, tracking work: race-ethnic variation in vocational course placement and consequences for academic and career outcomes, 1(1) int’l j. educ. stud. 9 (2014); mary cipriano-walter, falling off the track: how ability tracking leads to intra-school segregation, 41 t. marshall l. rev. 25 (2015). 105 while intuitively, there is such a thing as better and worse teachers, determining what makes one a good teacher is much more complicated. hanushek, for example, claims that the difference in added value between good and bad teachers can amount to more than a year’s worth of studying. however, he states that there is no reliable way to identify effective teachers through class size, salary, and education. see erik hanushek, school resources and student performance, in does money matter 59-60 (gary burtless ed., 1996). but see national center for education statistics, monitoring school quality: an indicator report (2000), http://nces.ed.gov/pubs2001/2001030.pdf [https://perma.cc/3nlp-mrzu] (arguing that possessing academic skills; teaching in the field of training, experience and participation in professional development programs are all measurable parameters for quality teachers). no. 1:1] religious, ethnic, and cultural charter schools 37 children are also staffed by less professional teachers.106 schools serving advantaged children also benefit from parental involvement. advantaged parents are typically more involved in schools and contribute their resources and time.107 as a result, student composition and peer effects join other social causes of educational deprivation and amplify existing patterns of educational inequality. b. segregation within religious, ethnic, and cultural charter schools as previously mentioned, it is highly debated whether charter schools generally increase or decrease segregation. research addressing this issue shows that the charter movement serves the same or an even greater share of racial minorities and poor students as public schools.108 some writers point to this data as proof that the charter movement has succeeded in fulfilling its promise to promote integration through choice.109 others highlight that, while the charter system serves high rates of minority and poor students, this 106 see heather g. peske, kati haycock, teaching inequality: how poor and minority students are shortchanged on teacher quality (education trust 2006), http://eric.ed.gov/?id=ed494820 [https://perma.cc/6auu-db97]; erica frankenberg, the segregation of american teachers, 17 education policy analysis archives 1 (2009); and john j. janssen, public school finance, school choice; and equal educational opportunity in texas: the enduring importance of background conditions, 10 rev. lit. 1, 9 (2000) (citing research showing that the ses of families is one of the most important factors influencing the supply of teachers to a certain district). 107 catherine hickman wehlburg et al., high school parent involvement: relationships with achievement, grade level, ses, and gender, 28 j. research & development in educ. 125 (1995). 108 for data according to race, see murphey & shiffman, supra note 13, at 73–75; for data according to socio-economic status, see david r. garcia, charter schools challenging traditional notions of segregation, in lubienski & weitzel, supra note 14, at 33. 109 see garcia, at 33, 46–49; eckes, supra note 96, at 51, 59; and james forman, jr., do charter schools threaten public education? emerging evidence from fifteen years of a quasi-market for schooling, 2007 u. ill. l. rev. 839 (2007). 38 columbia journal of race and law [vol. 7:1 may be because they are established in majority-minority districts.110 as a result, specific charter schools are segregated in measures that are equal to, and exceed that of public schools,111 making them, according to some, “the most segregated sector of public schools.”112 educators and lawmakers regard segregated schooling as a negative condition and they make efforts to avoid it. there are two distinct reasons why segregated schooling is undesirable. first, given the correlation described above between ses, race, and educational achievement, and the effects of peers on the quality of schools, segregation is likely to have an adverse effect on the educational opportunities of children from lower ses and racial minorities. this reason is a consequential one, meaning that if outcomes were to be different than the ones policymakers expect, there would be no reason to continue opposing segregation. the second reason underlying the disapproval of segregation along class and race does not depend on its assumed negative consequences. the integration of students from diverse backgrounds is viewed by some as an important function of public education, crucial to developing social equality, and enabling members of society to participate as equals in politics and the market.113 there may be cases, however, in which segregation may have educational benefits for students from underprivileged classes,114 in which case we must prioritize 110 see eckes, id., at 51, 53; garcia, at 38. see also janet d. mulvey et al., blurring the lines: charter, public, private and religious schools coming together 78–79 (2010). 111 id. 112 see lubienski & weitzel, supra note 14, at 15, 18; garcia, id., at 38, finding that two times the share of minority students studied in intensely segregated schools in charter schools, compared to minority students in public schools. 113 the most explicit defense of this position is put forward by elizabeth anderson in her book, the imperative of integration (2010). 114 tiza may be one example, though there are many others. see discussion in part ii-e, infra. see generally michel merry, equality citizenship and segregation: a defense of separation (2003) (arguing no. 1:1] religious, ethnic, and cultural charter schools 39 between the value of integrated learning and the duty to promote the education of disadvantaged children.115 as a separate category of charter schools, rec charter schools have not yet been subject to empirical research. therefore, there is no available data concerning their racial composition; however, some assumptions can be made based on general characteristics of rec charter schools. members of specific communities that are often racially homogenous and have similar socioeconomic characteristics establish rec charter schools. although non-members may enroll if they choose, these schools are naturally more attractive to members’ specific communities. therefore, rec charter schools are especially likely to be segregated along racial, ethnic and ses lines. this kind of voluntary segregation also happens in other schools of choice, such as schools suggesting specialized curricula,116 or schools of choice designed specifically for servicing “at risk” students.117 however, the correlation between race and ethnicity is stronger in rec charter schools, in which the community is often defined also along ethnic lines. this correlation is stronger in rec charter schools that teach foreign languages, as the preference to study a foreign language such as hebrew or native hawaiian is not distributed evenly among the population.118 in addition to that there are cases in which integration is not the best option for students from disadvantaged communities). 115 while there is merit in the claim that successful, high quality segregated schools are probably better than unsuccessful integrated schools, there is no reason to infer from past failures that effective forms of integration cannot be designed. 116 see harr bailey & cooper, supra note 28; mulvey, et al., supra note 111, at 82 (observing that “[b]y designing schools to focus on curricula that attract the white and more socio-economically affluent, segregation is subtly accomplished through parent and student choice”). 117 see murphy & shiffman, supra note 13, at 75, 122. 118 however, the acquisition of certain foreign languages such as mandarin has gained popularity with middle class parents, as another way to give their children an “edge” in the competitive educational landscape. 40 columbia journal of race and law [vol. 7:1 being more attractive and advantageous to members of the community, fulfilling an important goal that these families have in instilling the community’s identity in the children, the centrality of the language in the school’s curriculum may create relative disadvantages for non-member students whose families don’t speak the language, and who are not exposed to the language outside the school. this may also be a factor in the decision whether to transfer from public schools to rec charter schools at higher grades, because of the accumulated gaps in language proficiency. therefore, member families’ relative advantage in access to rec charter schools is likely to grow as the stage of education progresses. finally, being established by specific communities for their children, we can reasonably assume that rec charter schools will be located in or near neighborhoods where members of specific communities are concentrated. this is expected to result in schools that are socioeconomically and ethnically homogeneous, rather than diverse. based on these assumptions, rec charter schools are likely to be racially, ethnically, and socially segregated. there are, however, more intricate and subtle ways of educational stratification likely to occur in religious charter schools. i am referring to the twinphenomena of “creaming” and “cropping” that have significant implications on the student composition of both religious charter schools and the traditional public schools around them. while the two effects are similar in many ways, there are important differences between them with regards to the rec charter schools in which they are likely to occur and the effects they may have on the public schools. c. creaming private schools and prestigious public schools of choice attract high achieving and motivated students from advantaged families. when these children are drawn out of this kind of bilingualism is also the way hebrew classes are explained on the websites of certain hebrew charter schools. see supra note 5. no. 1:1] religious, ethnic, and cultural charter schools 41 public schools, this leaves the public schools depleted of advantaged children and of the resources they bring with them, causing a decline in the quality of education. the deterioration in education quality caused by decreases in resources and the negative peer effect induces even more students to leave, creating a downward spiral. eventually, only the most disadvantaged students remain in public schools. the gradual accumulation of multiple decisions made by individual students (and their parents) to move to private schools or other schools of choice has a profound negative effect on public schools and, more importantly, on the children who study in them. creaming schools group together high achievers, who experience advantageous peer effects. at the same time, education in public schools gradually deteriorates, both compared to the education provided by the creaming schools, and also compared to the education they were able to supply before the process of creaming began.119 different factors determine whether a school will be able to cream students, all related to what is perceived by potential students and their parents as making the school “better” than the public school they currently attend.120 things such as better test scores; better track record in graduates’ placements in college; better facilities; more options for advanced placement (“ap”) courses or college prep; better qualified teachers and better teacherstudent ratios; ample educational resources for supplies, field trips, labs and technology; a safe and pleasant environment; 119 adam swift, how not to be a hypocrite: school choice for the morally perplexed parent 38–41 (2003). 120 in order to cream, schools do not necessarily have to be, in fact, better. they merely have to be perceived as such. for example, student test scores are not necessarily good indicators of school quality, because they do not factor in the added value of the school. therefore, a school educating a high share of underprivileged or disabled children may be doing a better job, but still getting lower test scores. however, this problematic indicator may turn out to be a self-fulfilling prophecy, attracting advantaged students to certain schools, who then create a positive peer effect, which will, in turn, improve educational quality. see also lubienski & lubienski, supra note 7. 42 columbia journal of race and law [vol. 7:1 and, importantly, the concentration of high ability peers, can all contribute to a school’s reputation and influence its ability to cream students. most of the factors detailed above can be reduced to two main advantages. the first is financial advantage (which can ensure a rich curriculum, more qualified teachers, better facilities), and the second is student composition. when a school’s prestige is related to test scores and ivy league placement, the school is, in part, enjoying the benefits of having advantaged students study in it. high ability students, even more than financial incentives, help retain good teachers,121 and strongly affect violence rates and school environment. private schools are the paradigmatic example of creaming schools, enjoying both advantages. they have the resources to offer students attractive courses and campuses, including state-of-the-art computer and science labs, gyms, and pools; being able to offer higher pay, they can hire qualified teachers and employ enough staff members to ensure students receive individualized attention. private schools are able to select their students and usually charge tuition. therefore, they admit disproportionate numbers of children from advantaged families, creaming them from the public schools.122 the question of whether charter schools create creaming is more complicated. while the primary motivation behind the charter movement was improving educational achievement, another advantage that proponents stressed is the potential that charter schools held for promoting integration. according to advocates, the choice element in the charter movement (together with other choice based reforms such as vouchers, school choice and magnet schools) helps overcome residential segregation by severing the link between 121 see supra note 106. 122 see e.g. ruben a. gaztambide-fernandez, the best of the best: becoming elite at an american boarding school 26–40 (2009). no. 1:1] religious, ethnic, and cultural charter schools 43 the place people live and the school to which they go. while in the traditional regime only the wealthy could choose a school, by buying a house in the “right” neighborhood, or by going private, school choice allows all parents to choose a school for their children. charter schools (and public schools more generally), as opposed to private schools are not allowed, as a rule, to sort their students.123 therefore, when enrollment to charter schools exceeds their capacity, assignment is to be determined by a lottery.124 this, supposedly, prevents creaming because it ensures that students of all ability levels have an equal chance of attending the charter school. additionally, charter schools are publicly funded and free.125 this too, should prevent the selection (or self-selection) of students from affluent families, and keep the student bodies of both the charter schools and the traditional public schools racially and socioeconomically diverse. despite the lack of formal barriers, evidence indicates that charter schools are in fact more accessible to advantaged children. choosing a school, especially when choice is not mandated,126 requires parents to be proactive with regard to the school their children attend. it requires understanding the significance of the decision, gaining access to information, having social webs that offer guidance and support, and the ability to navigate a complicated system. as a result, advantaged parents—those who are better educated, involved and motivated, and those who are better connected, make 123 but see chester e. finn jr & jessica a. hocket, exam schools: inside america’s most selective public high schools (2012) (describing public schools that are academically selective). 124 see part iv for the legal rules regarding enrollment to charter schools. 125 see infra, part iv. 126 there may be differences in this regard between choice schemes in which all are required to choose a school, and cases in which the default is assigning children to a designated school and allowing opting out by choosing a different school. 44 columbia journal of race and law [vol. 7:1 better educational choices for their children, and their children are disproportionately represented in desirable schools of choice.127 practical difficulties also create barriers for disadvantaged children. transportation to a school located outside the neighborhood can be a significant burden for disadvantaged individuals. the distance can also bar poor children from enrolling in a school if they are expected to assume responsibilities in the house such as helping financially or taking care of siblings. disadvantaged children may be disinclined to enroll their children in schools outside the neighborhood, concerned that their children will feel out of place. consequently, schools of choice in general, and 127 see bruce fuller & ruchard f. elmore, who chooses? who loses?: culture, institutions & the unequal effects of school choice (1996) (findings from the us); justine s. hastings, et. al., preferences, information and parental choice behavior in public school choice, nat’l bureau of econ. res. working paper no. 12145 (2007), http://www.nber.org/papers/w12145 [https://perma.cc/q5be-2rjn] (stating that low-income families place much less weight on academics when choosing schools, decreasing their academic gains); justine s. hastings et al., parental preferences and school competition: evidence from a public school choice program, nat’l bureau of econ. res. working paper no. 11805 (2006), http://www.nber.org/papers/w11805 [https://perma.cc/g7r2-te8z] (finding that preference attached to school’s test scores increases with student’s income); geoff whitty, creating quasimarkets in education: a review of research on parental choice and school autonomy in three countries, 22 rev. of res. in educ. 3 (1997) (reviewing the research from england, the united states and new zealand concerning student placement in school choice programs according to ses). pauline musset, school choice and equity: current policies in oecd countries and a literature review, 25 oecd educ. working papers, no. 66 (2012), http://dx.doi.org/10.1787/5k9fq23507vc-en [https://perma.cc/a5vy-h6qk] (acknowledging unequal advantages for students from low ses in school choice programs in oecd countries). for a legal discussion of the disadvantages that racial minorities experience in school choice programs see osamudia r. james, opt-out education: school choice as racial subordination, 99 iowa l. rev.1083 (2014). for a response, see aaron saiger, what we disagree about when we disagree about school choice, 99 iowa l. rev. bull. l, 49 (2014) (arguing that school choice presents an improvement from the status quo). no. 1:1] religious, ethnic, and cultural charter schools 45 charter schools among them, are prone to creaming. this concern was explicitly addressed in charter legislation, with disputable levels of success.128 researchers have not yet studied creaming and cropping in rec charter schools. this is unfortunate, because there are good reasons to suspect that these processes will be more prevalent in rec charter schools than in other charter schools. therefore, even those persuaded by charter proponents that the movement has overcome the challenge of creaming should be concerned when confronted with the argument below. like other charter schools, rec charter schools cannot formally restrict access to certain students. no religious or other sorting may take place, and students belonging to the relevant religious or cultural community may not receive preference in the admissions process. this would seem to relieve concerns that religious charter schools create a special problem of access, and imply that if there is a creaming problem, it is no worse than in other charter schools. however, closer examination suggests that the special characteristics of rec charter schools (at least those that serve privileged communities)129 make them especially likely to induce creaming. thus, rec charter schools pose an especially grave challenge to equality of opportunity in education. consider a hebrew charter school like ekhla. ekhla primarily attracts students for two main reasons. first, parents of a child, who previously studied in jewish day schools with tuition, may prefer that their child attend a free charter school like ekhla, despite the reduction in religious education. second, hebrew charter schools like ekhla may attract jewish children who formerly attended public schools. 128 see infra part iv. 129 rec charter schools serving disadvantaged minorities are more likely to create cropping, as will be described in part iii-d. 46 columbia journal of race and law [vol. 7:1 the exodus of a significant number of children from public schools to hebrew charter schools like ekhla can have negative effects on the public schools they leave, and may cause negative peer effects.130 ekhla offers the advantages of a private jewish day school for free; and it encourages students that would otherwise attend public schools and contribute to the diversity and positive peer effect to leave in favor of a homogeneous, community-based school. families are likely to consider, in making this decision, the fact that the charter school is likely to be more ethnically and socioeconomically homogeneous, and serves a lower share of disadvantaged students relative to the local public school. while this process is similar to those that occur in private schools, it is potentially far more widespread when charter schools are concerned, because they, as opposed to private schools, are free. therefore, if previously only people who held very strong religious beliefs or were extremely wealthy (or both) would choose the private school option, and many of the middle class children remained in public schools, rec charter schools have changed this and made the exit from traditional public schools much easier.131 130 naomi fejgin, factors contributing to the academic excellence of american jewish and asian students, 68 soc. of educ. 18 (1995). charter schools that attract children of asian origin, such as those teaching mandarin, may have the same effects. if all students enrolling in the charter school previously attended a private school, they would not have contributed to the peer effect in public education in any case. however, what is usually the case is that establishing an rec charter school induces students to leave both private schools and traditional public schools. when ekhla converted from a private jewish day school, for example, its enrollment increased from a hardly viable 80 students to 200. see supra note 3. 131 admittedly, public schools in advantaged neighborhoods would often serve few or no poor children anyway and have beneficial peer effects. in this case, there would likely to be less motivation to establish a religious charter school. if such a school were to be established, and indeed no creaming occurred, that would be all for the best, and the school should not be restricted. for the legal discussion, see infra part iv-c. no. 1:1] religious, ethnic, and cultural charter schools 47 to make things worse, the creaming effect caused by rec charter schools is even more pervasive than merely extracting members of the religious or cultural community from public schools. after the initial creaming of children belonging to the community, and the subsequent decline of public schools, other students may also make an effort to leave the public school, not wanting to remain in the “sinking boat.” non-member children are obviously free to choose any other school (charter or private), but rec charter schools may also be attractive to non-members as well, creating a “secondary creaming” of non-member students. rec charter schools serving middle class communities are likely to be schools that in addition to the cultural and ethnic focus also offer high quality education in secular terms. rec charter schools serving advantaged communities attract primarily children of members, so positive peer effects, safe and positive school environment and good scores on tests are to be expected. they also enjoy relative financial prosperity because although they are not allowed to charge tuition, they are allowed (as all public schools are) to accept donations. these elective payments are an extremely significant factor in the inequality of resources between schools,132 and because charter schools often receive lower public funding, they are even more dependent than traditional public schools on private contributions for their establishment and operation.133 housing charter schools in campuses shared with other community institutions, such as religious congregations or ethnic communities, can help ensure the schools’ financial stability. 132 parents’ contributions in wealthy areas can reach thousands of dollars each year ($1,500 in menlo park; $2,300 in hillsborough, ca; and $3,400 in marin county). rural areas or poor inner-city districts are not able to raise these funds, some receiving less than $100 a year per child. see rob reich, opinion not very giving, n.y. times (june 3, 2012), http://www.nytimes.com/2013/09/05/opinion/not-very-giving.html [https://perma.cc/blg6-eenx] (discussing parent donation requests and figures raised for different school districts). 133 see supra note 23. 48 columbia journal of race and law [vol. 7:1 because of these advantages, some non-member families who seek a better education for their children are willing to “tolerate” the specialized curriculum at an rec charter school. it seems that this softened religious or cultural focus is a small price to pay for all the advantages rec charter schools have to offer. accordingly, ben gamla charter school and other hebrew charter schools report that each year, several non-jewish students enroll into their schools, presumably because they are attracted to the schools’ academic quality and other benefits.134 the hellenic classical charter school in new york city emphasizes classical studies as well as greek and latin, and incorporates socratic questioning as a central learning strategy. however, its mission is just as much about granting its students a competitive education as it is about having them experience greek culture.135 the school’s popularity transcends the greek community; in fact, less than fifty percent of the school’s students are of greek origin.136 all the other students are attracted to the benefits that the school has to offer in comparison to traditional public schools.137 not all rec charter schools are equally attractive to non-members; the closer the charter school’s mission and culture is to that of the non-members, or to that of traditional 134 see siracusa hillman, supra note 28, at 569 (noting that some non-jewish students attend ben gamla charter school). 135 mission statement, the hellenic classical charter school, http://www.hccs-nys.org/file/nav/19403110 [https://perma.cc/d7ey-h4vw]. see also harr bailey & cooper, supra note 28, at 280–81 (discussing cultural aspects of hellenic classical charter school). 136 see harr bailey & cooper, supra note 28, at 281. 137 other religious charter schools also serve non-member students. catholic private schools, for example, traditionally serve disadvantaged, inner-city students, the majority of whom are not catholic. the conversion charter schools that have replaced some catholic private schools continue to serve both catholic and non-catholic students. see horning, supra note 29, at 375 (noting that about seventy percent of students in catholic schools converting to charters in washington, d.c. were not catholic, so resulting charter schools’ potential populations of catholic students were limited). see also mulvey et al., supra note 111, at 81. no. 1:1] religious, ethnic, and cultural charter schools 49 public schools, the more attractive it will be.138 the fact that the religious characteristics in rec charter schools are relatively mild and that religious activity is non-coercive makes it easier for students who do not belong to the community to attend the schools. if the specialized content is limited to history, culture, and universal values, then this seems like a reasonable price for non-member families to pay for an excellent education. research pointing out the benefits of bilingualism is used to persuade parents that learning a foreign language is an advantage, rather than a price. as a result, going to one of these rec charter schools is beneficial, in educational terms, even for non-member families. still, enrolling one’s children in an rec charter school is not the most natural decision for a non-member family, as the decision requires sophistication and resourcefulness on the part of parents. as a result, secondary creaming of nonmember students is potentially even more selective than the initial creaming of member students. it is reasonable to assume that the more advantaged and well-informed nonmember parents will choose an rec charter school for their children (whereas, within the community, there is likely to be at least some diversity with regard to ses). in addition, there are more mundane mechanisms that would make rec charter schools less accessible to nonmember children who are also not affluent. first, while they do not require tuition, rec charter schools (more so perhaps than other charter schools) may involve extensive extracurricular activities that are based on parents’ payments, discouraging parents who are not affluent from applying to the school.139 second, although religious charter 138 this might also depend on the availability and quality of other educational options in the area, such as regular charter schools. 139 as i mentioned above, there is an unfortunate lack of empirical research on rec charter schools, but it is expected that charging fees for extracurricular activities will exclude certain students. for research regarding parental payment for extracurricular activities in public schools, see marc d. puntus, education fees in public schools: a practitioner’s 50 columbia journal of race and law [vol. 7:1 schools (as are charter schools in general) most often employ open-enrollment policies and therefore cannot reject students, they are still able to manipulate enrollment, making access easier for certain non-member students than for others. examples of this include focusing outreach efforts in wealthy neighborhoods or offering courses and curricula that are attractive to educated parents. by doing so, schools can affect the identity of students that enroll and attract students from advantaged groups.140 as a result, non-member students who attend rec charter schools established by privileged minorities are likely to be children from privileged backgrounds, and thus are likely to aggravate the creaming effect. an interesting observation concerning religious practices in charter schools arises from this analysis. in order to comply with the first amendment, religious charter schools ensure that their religious character is relatively mild. this, in turn, makes religious charter schools more attractive to non-members. non-member parents might not be willing to expose their children to explicit religious preaching, but do not object to the secular teaching of religion as a culture. observing the first amendment restrictions, therefore, induces creaming. the less problematic schools are in terms of the first amendment, the more centered they are on culture and language, the more problematic they potentially become in terms of equality. religious charter schools that would actively endorse religion, compelling students to participate in rituals and religious teaching, would likely be guide, 73 b.u. l. rev. 71 (1993) (analyzing constitutional and state statutory implications of pay-to-play); kate i. rausch, pay-to-play: a risky and largely unregulated solution to save high school athletic programs from elimination, 39 suffolk u. l. rev. 583 (2006) (arguing pay-to-play subverts free public education as a concept); shannon m. ryan, fees for extracurricular activities alienate students who would otherwise participate and should be replaced with alternative means of fundraising, 13 seton hall j. sport l. 239, 239–40 (2003) (noting pay-to-play discourages participation by students). 140 admittedly, this manipulation is not unique to rec charter schools and can be performed by any school of choice. no. 1:1] religious, ethnic, and cultural charter schools 51 unconstitutional under the first amendment but would be far less likely to create creaming. accordingly, liberalizing the first amendment restrictions to allow more religious practices in charter schools might deter non-member families from enrolling in the schools, thus reducing creaming. while the process of creaming is well documented in empirical research in education (although, as noted, not with regard to the category of rec charter schools specifically), its outcomes and severity are highly contingent on the circumstances of each relevant case. for example, despite the characteristics described above, a hebrew charter school may fail to cream students if the public school has a good reputation or an admired principal that causes students to stay.141 additionally, if a public school is converted into a charter school and continues to teach all of its students, there may be no problem of creaming.142 moreover, despite the description above, there may be rec charter schools that attract non-members who are not privileged. for example, harlem hebrew language academy, established in 2013, features, in addition to the hebrew studies, a “specialized social studies curriculum . . . focusing on harlem’s history as a focal point of migration and immigration.”143 and indeed, harlem hebrew language academy is racially diverse, 141 these are merely examples of possible considerations parents may have in evaluating the quality of a school. when local public schools are considered good, member families will also be less motivated to establish a charter school in the first place. motivation to establish a charter school may be stronger, however, amongst families currently enrolled in private parochial schools. 142 although converting a traditional public school into a religious, ethnic, or cultural charter school may have the effect of excluding nonmember students whose parents are not interested in the specialized curriculum. 143 see about us, harlem hebrew language academy charter school, http://www.harlemhebrewcharter.org [https://perma.cc/w9gunwvx]. 52 columbia journal of race and law [vol. 7:1 attracting non-members who are not necessarily from privileged backgrounds.144 careful design of school policy can therefore have a significant influence on student composition. and still, anecdotal evidence of rec charter schools that do not induce creaming cannot alleviate the egalitarian concern any more than an unsuccessful private school rebuts the egalitarian aversion toward private schools in general. rather, this implies that the legal treatment of charter schools should reflect their different effect on public schools, restricting primarily those that have negative influence.145 rec charter schools that do not create creaming should serve as important examples to demonstrate how the aims of religious charter schools can be realized without harming public schools around them. while the concerns regarding creaming may seem relatively limited in scope, applying only to specific schools in specific circumstances, they are actually likely to become increasingly relevant. the uninterrupted proliferation of rec charter schools serving advantaged communities is likely to encourage groups of advantaged parents—whether they belong to religious communities or not—to establish their own charter schools, a process which will, in all likelihood, aggravate inequality in education. d. cropping not all rec charter schools neatly fit the description above. when members of a marginalized minority establish a charter school designed to accommodate their unique cultural or linguistic needs, creaming does not occur. through no fault of their own, students from racial and ethnic minorities are 144 to my knowledge, there is no data exploring whether african american students attending harlem hebrew are advantaged in relation to those attending neighboring public schools. 145 see infra part iv-c (developing this implication). no. 1:1] religious, ethnic, and cultural charter schools 53 often the lowest achievers in the public education system, and educating them is challenging and expensive.146 when they leave racially diverse public schools, therefore, they do not cause a negative peer effect in the public schools. additionally, a charter school that enrolls a majority of children belonging to disadvantaged minorities would probably not induce further creaming of students from outside the community: students, especially the most advantaged students, would not leave their public schools in order to attend the charter school. therefore, while these schools no doubt contribute to racial isolation, they cannot be accused of creaming. they can be expected, however, to create cropping—a phenomenon closely related to creaming—in which specialized schools serve local disadvantaged communities but exclude the most disadvantaged members of the community, who remain in traditional public schools. cropping is likely to occur when public schools are racially segregated and inadequate,147 driving parents from within the marginalized community to seek better educational opportunities for their children. charter schools constitute an attractive option, because they are publicly funded and free. however, the most severely disadvantaged children are least likely to make the most of the newly available opportunities. they remain in traditional public schools, and suffer the consequences of negative peer effects. once again, the private decisions individuals make to leave public schools have negative consequences for the students remaining in them. cropping may occur through selection to private schools. prestigious schools often make efforts to diversify 146 kevin carey, education funding and low income children: a review of current research, center on budget and policy priorities, http://www.cbpp.org/archives/11-7-02sfp3.htm [https://perma.cc/z4rwydbr] (demonstrating that studies show disadvantaged students require about twice the resources that their advantaged peers require to achieve the same educational outcomes). 147 examples of such schools are described in kozol, supra note 66, and alonso et al., supra note 70. 54 columbia journal of race and law [vol. 7:1 their student bodies by reaching out to marginalized minorities and identifying students with high potential and offering them scholarships and other means of assistance. by doing so, these schools create racial diversity and grant the “chosen few” advantageous educational opportunities. at first glance, this can be said to have a positive effect on equality; it promotes diversity and offers educational opportunity to minority children. however, this view is misleading for a number of reasons. first, it should be noted that cropping blurs evidence of racial inequality in selective schools, but does not necessarily indicate equal access. for example, a school may be racially diverse, but if the accepted minority students present a higher level of ability than the average student, this may indicate that access is unequal, and that while the best students from racial minority groups are able to enter, many others are effectively barred. additionally, students with equal levels of talent may have different chances of succeeding in a selective school, as they come less prepared and do not have the ongoing support that students from affluent families have. yet, even more to the point, while promoting diversity in selective schools, cherry-picking the most capable students, selective schools create a negative peer effect in the public schools, leaving them “cropped low.” rec charter schools are expected to cause cropping because the students who are more likely to enroll in them are the relatively advantaged students within the minority— those who have parents with the knowledge and ability to help establish a charter school or to choose an existing one.148 and while the numbers of children from the community able to enroll in an rec charter school established on their behalf are much greater than those who will be accepted to a prestigious private school, as long as the public schools continue to operate, cropping remains a problem. in fact, the problem is 148 see supra part iii-c (explaining these barriers). no. 1:1] religious, ethnic, and cultural charter schools 55 probably made worse, because the traditional pubic school loses more of its students and resources.149 the tiza charter school can be an illuminating example. tiza was established to serve children from somalimuslim families, who were formerly educated in hyper segregated, underfunded public schools. following tiza’s success, the school was oversubscribed and enrollment required a lottery. however, given the findings presented above concerning disadvantaged parents and their skills in choosing schools, the most disadvantaged students are the least likely to apply or be represented at a school like tiza.150 these students are much more likely to remain in public schools that will further deteriorate due to lack of resources and negative peer effects. the conclusion is that in granting these students a much-deserved chance, religious charter schools serving insular and marginalized minorities harm the most disadvantaged members of their own community. e. addressing two counterarguments two counterarguments should be addressed at this point. the first concerns the application of the argument against rec charter schools in cases of those serving disadvantaged minorities, such as tiza. schools like tiza or native american charter schools serve some of the nation’s most disadvantaged children, children whose public schools provide an extremely inadequate education. therefore, even if these schools do induce cropping, they still offer disadvantaged students better educational opportunities than they have and should thus be applauded rather than denounced. 149 this problem does not arise when public schools are converted into charter schools and serve all students from the original public school. 150 see generally whitty, supra note 127, at 19 (noting that some features of charter schools may exclude “students from certain disadvantaged groups”). 56 columbia journal of race and law [vol. 7:1 tiza, for example, ranked high on the minnesota comprehensive assessment exams, outperforming some of the best suburban schools in its area.151 tiza’s english as a second language (“esl”) program was recognized for its success and innovation, and the school opened a second location and became a mentor for several other start-up charter schools.152 hmong academy in st. paul, minnesota also has shown similar success. in three years, levels of success on the basics skills test leaped from a bleak ten percent of 9th and 10th graders to an impressive seventy-five percent of 9th through 12th graders, and the graduation rate of their first graduating class was ninety percent.153 another hmong charter school, the community of peace academy, was one of the top twenty minnesota schools in improved math skills, and was also noted for a relatively high rate of passing reading exams, even though english was not the first language for most students.154 charter schools serving native americans have also shown initial encouraging results in educating some of america’s most failing students.155 therefore, criticizing such religious charter schools, let alone restricting them, might seem extremely misguided, and egalitarians should instead support the establishment of additional rec charter schools focusing on excluded minorities. moreover, it could be argued that trying to prevent individual students from leaving failing public schools in favor of more promising rec charter schools would constitute the cruel sacrifice of one student for the sake of another. 151 see harr bailey & cooper, supra note 28, at 279. 152 id. 153 id. at 283. 154 id. at 284. 155 public charter schools growing on native american reservations, national alliance for public charter schools, http://www.publiccharters.org/press/public-charter-schools-growing-nativeamerican-reservations [https://perma.cc/7hxg-jp97] (stating charter schools serving native american populations “are aiming to improve student learning and some schools are beginning to succeed”). no. 1:1] religious, ethnic, and cultural charter schools 57 i concede that absent appropriate alternatives, decision-makers should be very cautious when restricting successful schools serving marginalized minorities. if all students could attend rec charter schools (and public schools would close), cropping might cease to be an issue. still, it is crucial to pay attention to the concerns detailed above for two reasons. first, it is important to stress that despite their success, rec charter schools are not the perfect solution for the education of racial and ethnic minorities. there may not be a better alternative available at present, but designing a systematic solution that does not advantage one child at the expense of another is still indispensable. additionally, even if rec charter schools that induce cropping should not be restricted, it is crucial that policymakers acknowledge cropping and its negative effects. they have an obligation to ensure that all students, including those remaining in traditional public schools, have sufficient educational opportunities. stressing only the positive aspects of rec charter schools may mistakenly imply that school boards and states have realized their obligations to students of racial and ethnic minorities by supporting charter schools. pointing out the negative effects of cropping shows that this is not so. the second possible counterargument is that the critique suggested above—according to which creaming and cropping are negative outcomes of choice—effectively amounts to undermining the rationale of competition that underlies the charter movement as a whole. the reality of children leaving public schools in favor of better (charter) schools is an essential part of the market mechanism of competition. competition is based on consumers’ freedom to choose among different providers, which in turn pushes all to excel. even if creaming and cropping have a negative effect on public schools, it is merely a temporary setback. public schools will be compelled to improve in order to prevent students from 58 columbia journal of race and law [vol. 7:1 leaving them, or in order to tempt them back.156 accordingly, creaming and cropping, are, essentially, a sign that the market is working as it should. proponents of the charter movement, therefore, could object that creaming and cropping are not negative phenomena, but rather simply part and parcel of the process of improving education for all through competition. if so, it would seem that showing that rec charter schools create creaming and cropping would not be considered a cause for concern among charter proponents, and such an argument should instead be understood as part of a more general argument against incorporating competition in educational reforms. but this counterargument is misguided. there has been substantial debate regarding the advisability of competition in education, including arguments challenging the assumption that competition can improve education for all students.157 however, rec charter schools create special causes for concern that should trouble not only those who oppose the movement in general, but also those that celebrate it. the assumption underlying the charter movement is that competition is a vehicle for improvement, and that it will improve education for all. proponents of charter schools are also committed to the idea that choice and the advantages of it should be equally accessible to all. therefore, the fact that a certain kind of charter school, namely rec charter schools, is disadvantaging children from marginalized groups should be of interest not only to opponents of the charter movement that may use it as another proof of its ills, but even more so to charter enthusiasts, who seek to improve the operation of charter schools. iv. legal regulation of charter schools this part focuses on state charter legislation, primarily on rules regarding student enrollment, and examines the ability of the strategies adopted by different 156 see chubb & moe, supra note 16. 157 see fuller & elmore, supra note 127. no. 1:1] religious, ethnic, and cultural charter schools 59 states to contend with the challenges presented above. state charter legislation is clearly not the only possible track to contend with inequalities that charter schools may create. other legal tools, such as equal protection claims (both federal158 and state159), state constitutions’ education clauses,160 and title vi of the civil rights act of 1964,161 have 158 the effectiveness of equal protection challenges, however, is questionable. intentional discrimination would be hard to prove in the case of rec charter schools, and the supreme court ruled out ses as a suspicious classification that warrants strict scrutiny in federal equal protection claims. see san antonio v. rodriguez, 411 u.s. 1, 16 (1973) (holding no strict scrutiny analysis of equal protection claim in a class action where plaintiffs were students from poor families). 159 state equal protection clauses may have a better chance to be able to prevent inequality, as they are, in some of the states, more inclusive than the united states constitution. thus, for example, unequal funding in different districts in california was found unconstitutional despite the supreme court’s decision in san antonio v. rodriguez. id. see serrano v. priest, 557 p.2d 929, 929 (cal. 1976). in another case, the connecticut supreme court declared de-facto segregation unconstitutional. see sheff v. o’neill, 678 a.2d 1267, 1283 (conn. 1996). for a general discussion, see jeffrey m. shaman, the evolution of equality in state constitutional law, 34 rutgers l. j. 1013 (2003). 160 different states have stated the right to education, and the state’s equivalent duty to supply education in different terms: some ensuring an “adequate education,” others a “thorough and efficient education,” a “sound basic education,” etc. see josh kagan, a civics action: interpreting “adequacy” in state constitutions’ education clauses, 78 n.y.u. l. rev. 2241 (2003). an argument based on the education clause would have to establish that the negative effects for traditional public schools were so severe that they no longer supplied adequate education. despite the harm that rec charter schools purportedly cause traditional public schools, there are often other causes, such as insufficient funding and untrained teachers, that are responsible for the inadequacy of education. the argument that charter schools make public schools inadequate (due to the financial effect they have on public schools) was rejected in new york city school bds. ass’n. v. board of educ. of city school dist. of city of n.y., 50 a.d.2d 826 (n.y. app. div. 2d dep’t 1975). 161 title vi prohibits discrimination on the basis of race, color or national origin in programs that receive federal financial assistance and therefore applies to almost all charter schools. title iv of the civil rights act of 1964, 42 u.s.c. § 2000d (1964). it applies not only in cases of intentional discrimination but also in cases of disparate impact, which may be more suitable for religious charter schools. however, title vi does not 60 columbia journal of race and law [vol. 7:1 all been invoked with varying degrees of success to promote equality in education. they have also been extensively discussed in literature. charter legislation, however, is another primary and potentially effective legal tool to promote equality.162 legislation sets out the rules that govern charter schools from their inception and can therefore potentially counter some of the problems before they are created. apply to discrimination based on ses, and therefore would not capture all cases of creaming. additionally, disparate impact theory is mostly suitable to address racial isolation and would not capture all cases of creaming and cropping. finally, title vi does not give rise to an individual cause of action except in cases of intentional discrimination. in all other cases, a complaint must be filed with the office of civil rights (“ocr”). see, e.g., alexander v. sandoval, 532 u.s. 275 (2001) (holding no private right of action for plaintiffs seeking to enforce title vi civil rights act of 1964 regulations concerning disparate impact). a complaint regarding racial and socioeconomic segregation allegedly caused by charter schools in delaware was filed to the ocr in march 2014 by the american civil liberties union (“aclu”) and the community legal aid society (“clasi”) and is still pending. see aclu and clasi file complaint with office of civil rights, american civil liberties union of delaware (dec. 2, 2014), http://www.aclude.org/news/aclu-de-files-complaint-with-office-of-civil-rights/2014/12/03 [https://perma.cc/tby7-4eae]. while there are indications that the ocr is an active player that helps states comply with antidiscrimination rules, there has also been criticism concerning its effectiveness. see u.s. department of education, office for civil rights, helping to ensure equal access to education: report to the president and secretary of education (2012), https://www2.ed.gov/about/reports/annual/ocr/report-topresident-2009-12.pdf [https://perma.cc/5qpp-d9db] (describing enforcement and compliance actions taken by the ocr); but see alison renfrew, the building blocks of reform: strengthening office of civil rights to achieve title ix’s objectives, 117 penn. st. l. rev. 563 (2012) (describing the main problems with the ocr in the context of title ix); bonnie p. tucker, section 504 of the rehabilitation act after ten years of enforcement: the past and the future, 1989 u. ill. l. rev. 845 (1989) (describing problems with the ocr in the context of § 504). 162 states have different rules regarding matters such as the entities that may establish charter schools; the agencies authorized to issue charters; the kinds of charter schools that may be established; the exemptions that charter schools have from regulations that apply to traditional public schools; issues of employment, collective bargaining and teachers’ unions; student enrollment; and others. see fox et al., supra note 30, at 283 (arguing that state charter rules are relatively uniform). no. 1:1] religious, ethnic, and cultural charter schools 61 legislation details aspects of charter school operation that affect issues of equality, such as enrollment, tuition, and location. upon examination of the measures adopted in the different states in order to promote diversity, three different strategies emerge. the first category consists of antidiscrimination state laws that also ensure open enrollment. the second category includes states whose charter laws require, in addition to open enrollment, that student composition in charter schools reflect the school districts’ population and offer different possibilities to obtain it. the third and final category consists of provisions that examine the effect that charter schools have on traditional public schools’ composition and quality. in the following pages, each strategy is described and analyzed. the conclusion that follows is that while the first two strategies may be able to promote equality in the case of charter schools in general, they are unlikely to be effective in the case of rec charter schools. the third strategy, which involves examining both charter schools and traditional public schools in their vicinity, is the strategy that is most likely to be able to promote diversity, integration, and equality of educational opportunity in the case of rec charter schools. a. antidiscrimination charter legislation in all states forbids charter schools to sort students on the grounds of race or religion.163 other categories of prohibited discrimination, such as creed, sex, national origin, religion, ancestry, disability, or sexual orientation, vary from state to state. in most states, charter schools are required to maintain open enrollment, so student 163 discrimination would also cause charter schools to lose federal funding. for a description of state charter legislation, see wendy parker, the color of choice: race and charter schools, 75 tul. l. rev. 563, 592–96 (2001); preston c. green iii & joseph o. oluwole, charter schools: racialbalancing provisions and parents involved, 61 ark. l. rev. 1 (2009) (describing state charter legislation on racial balance). 62 columbia journal of race and law [vol. 7:1 sorting is not allowed. random selection is then used when schools are oversubscribed. federal financial support is granted to open-enrollment charter schools, creating an additional incentive for charter schools to maintain this policy. another rule that applies to charter schools in all states is the prohibition of tuition fees, which is also meant to ensure equal access and prevent ses segregation. some of these laws also state that charter schools shall be subject to desegregation plans that apply to the school district.164 in some states, such as iowa,165 colorado,166 and idaho,167 the antidiscrimination provisions are the only 164 in most cases this is stated briefly and does not seem to place any additional burden on charter schools. arkansas, however, has a detailed section regarding the influence of a charter school on desegregation efforts, making it essentially more like requirements from the third category. see infra part iv-c (addressing state legislation that requires examining the effects that charter schools have on student composition in traditional public schools). the arkansas legislation requires that: (a) the applicants for a public charter school, the local school district board of directors for the district in which a proposed public charter school would be located, and the authorizer shall carefully review the potential impact of an application for a public charter school on the efforts of a public school district or public school districts to comply with court orders and statutory obligations to create and maintain a unitary system of desegregated public schools. (b) the authorizer shall attempt to measure the likely impact of a proposed public charter school on the efforts of public school districts to achieve and maintain a unitary system. (c) the authorizer shall not approve any public charter school under this chapter or any other act or any combination of acts that hampers, delays, or in any manner negatively affects the desegregation efforts of a public school district or public school districts in this state. ark. code ann. § 6-23-106 (2016). 165 iowa code § 256f.4(3) (2014). 166 colo. rev. stat. § 22-30.5-104 (2016). 167 idaho code ann. § 33-5205 (3)(k); 33-5206 (1) (2016). no. 1:1] religious, ethnic, and cultural charter schools 63 limitations on charter schools’ admissions policy. these states rely on charter schools to be attractive enough through their programs and quality to students from all walks of life, creating a diverse applicant pool. by requiring random selection and prohibiting discrimination and charging tuition, legislators hope to ensure that charter schools will reflect the general population and will not cream or crop. however, while these measures may have a positive effect in the case of charter schools in general, they are likely to be insufficient in the case of rec charter schools. as was demonstrated in part iii, rec charter schools are especially likely to attract racially homogeneous applicants. moreover, not only is the antidiscrimination requirement insufficient to promote equality, it actually aggravates the creaming effect. antidiscrimination provisions allow students that are not members of the community to enroll in the school, thus enabling secondary creaming, or in other words, creaming of non-members from public schools. b. reflecting the racial and socioeconomic composition of school districts in addition to antidiscrimination rules, some states have introduced legislation aimed at creating racial balancing in charter schools.168 the goal of these provisions is to ensure that student composition in charter schools reflects that of the general population in the school district. some of these provisions focus on the chartering stage, giving the chartering agency authority to deny a petition for a charter when the 168 see parker, supra note 163, at 578–81 (surveying state legislation on charter school racial and ethnic balancing); green & oluwole, supra note 163, at 21–36 (identifying provisions on racial balancing for charter schools). 64 columbia journal of race and law [vol. 7:1 requirements are not met. in california,169 south carolina,170 kansas,171 rhode island,172 wisconsin,173 and florida174 the application for a charter must specify the measures the school will undertake to ensure racial and socioeconomic balance that reflects the composition of the population. ohio requires that the ways in which the charter school will “achieve racial and ethnic balance reflective of the community it serves” be detailed in the contract establishing the charter school.175 new jersey requires charter schools to design their admission policies to seek, “to the maximum extent practicable,” a crosssection of the community’s school age population, including racial and academic factors.176 hawaii does not require 169 cal. educ. code § 47605(b)(5)(g) (2015) (effective jan. 1, 2016) (stating that an application may be denied if the petition does not contain a reasonably comprehensive discussion of “the means by which the school will achieve a racial and ethnic balance among its pupils that is reflective of the general population residing within the territorial jurisdiction of the school district to which the charter petition is submitted”). 170 s.c. code ann. § 59-40-60(f)(9) (2014) (stating that an application must describe how it “plans to ensure that the enrollment of the school is similar to the racial composition of the local school district in which the charter school is to be located or the targeted student population of the local school district that the charter school proposes to serve”). 171 kan. stat. ann. § 72-1906(d)(2) (2004) (noting that in order to qualify for establishment or continuation, the charter school must demonstrate that the students be “reasonably reflective of the racial and socio-economic composition of the school district as a whole”). 172 r.i. gen. laws § 16-77.2-2(a)(10) (2010). the charter school must describe enrollment “policy or policies that outline outreach and recruitment programs to encourage the enrollment of a diverse student population.” 173 wis. stat. § 118.40(1)(m)(b)(9) (2015). the petition must detail the “means by which the school will achieve a racial and ethnic balance among its pupils that is reflective of the school district population.” 174 fla. stat. § 1002.33 (7)(a)(8) (2016). the application should address “the ways by which the school will achieve a racial/ethnic balance reflective of the community it serves or within the racial/ethnic range of other public schools in the same school district.” 175 ohio rev. code ann. § 3314.03(a)(7) (lexisnexis 2016). 176 n.j. stat. ann. § 18a:36a-8(e) (1996). in in re grant of charter sch. application of englewood on the palisades charter school, 754 a.2d 687 (n.j. 2000), the court declared that the education commissioner is required to perform an assessment on the effects a charter school will have no. 1:1] religious, ethnic, and cultural charter schools 65 charter schools to reflect the racial composition of the community. instead, hawaii has enacted several antidiscrimination rules, imposes a requirement to perform a lottery to determine admission, and allows weighted lotteries that give priority to disadvantaged students.177 in some states, charter legislation does not simply require the charter school to detail the measures it intends to adopt in order to bring about racial balance, but it goes a step further and requires charter schools to actually achieve specified goals of racial balance. south carolina legislation states that the racial composition of the student body may not differ by more than twenty percent from “that of the local school district in which the charter school is located or that of the targeted student population of that school district that the charter school proposes to serve.”178 nevada’s charter legislation requires that the charter school shall, “if practicable, ensure that the racial composition of pupils enrolled in the charter school does not differ by more than ten percent from the racial composition of pupils who attend public schools in the zone in which the charter school is located.”179 north carolina requires, within a year of the charter school’s operation, that the school population “reasonably reflect the racial and ethnic composition of the general population . . . or the racial and ethnic composition of the special population that the school seeks to serve.”180 other measures meant to promote student diversity are also suggested in the legislation of some states. in minnesota, for example, a charter school may limit admission to “residents of a specific geographic area in which the school is located when the majority of students served by the school on the racial balance in the school district, a duty that falls into the third category, described in part iv-c infra. 177 haw. rev. stat. § 302d-34 (2014). 178 s.c. code ann. § 59-40-50(b)(7) (2008). 179 nev. rev. stat. § 388a.453(3) (2016). 180 n.c. gen. stat. § 115c-218.45(3) (2014). 66 columbia journal of race and law [vol. 7:1 are members of underserved populations.”181 missouri’s charter legislation allows charter schools to give preference, when oversubscribed, to residents of a specified area around the school, so long as this does not result in the establishment of racially or socioeconomically isolated schools.182 connecticut’s state board gives preference to charter schools established in a district in which seventy-five percent or more of the students belong to racial minorities.183 provisions regarding racial composition of charter schools are also found in the context of probation and renewal of existing charters. connecticut allows the commissioner of education to place a charter school on probation if it fails to achieve measurable progress in reducing racial, ethnic, and economic isolation.184 it also allows the state board of education not to renew a charter if the school has not been able to attract and retain sufficient students with low academic performance, students eligible for free lunch, students with behavioral difficulties, and english language learners.185 a charter may be revoked in south carolina if the racial balance is not similar to that of the local school district, after the board of trustees (which grants charters) has considered the recruitment efforts and the racial composition of the applicant pool to determine if they are operating in a discriminatory manner.186 the measures outlined above were designed by legislatures in order to address the concern that charter schools would deepen racial segregation. some of the provisions are so demanding that they would not allow a charter school to open or to renew its charter if the student body does not reflect the racial balance of the population. regretfully, despite the best of intentions, this strategy is 181 minn. stat. § 124e.11(a)(3) (2015). 182 mo. rev. stat. § 160.410(2)(1) (2016). 183 conn. gen. stat. § 10-66bb(c) (2015). although this does not necessarily guarantee racial diversity, quite often it has the opposite result. 184 id. at § 10-66bb(h)(1)(c). 185 id. at § 10-66bb(g). 186 s.c. code ann. § 59-40-70(d) (2014). no. 1:1] religious, ethnic, and cultural charter schools 67 unlikely to effectively prevent racial and socioeconomic segregation, creaming, and cropping in rec charter schools. some of the doubts regarding effectiveness are common to charter schools in general as i will show, however, they are especially acute in the case of rec charter schools. first, most of the measures described above require that the racial composition in the charter school reflect that of the general population—or in some cases, that of the community that the school serves. this aims to create economic and racial integration at the level that exists within the school district. however, when the general population is geographically segregated into different school districts, these provisions will not promote integration in any meaningful way. the goal these rules aim to achieve, therefore, is relatively modest: to merely avoid being more segregated than public schools in the district. in light of the notion that charter schools were lauded as a way to overcome residential segregation, this goal is disappointing. rec charter schools are likely to avoid the requirements of these laws. most notably, some of the provisions state explicitly that student composition should reflect the ethnic composition of the school district or the community the charter school serves. north carolina, for example, requires charter schools to “reasonably reflect the racial and ethnic composition of the general population residing within the local school administrative unit in which the school is located or the racial and ethnic composition of the special population that the school seeks to serve.”187 rec charter schools aim to serve a specific ethnic or cultural community. therefore, these provisions will have no diversifying effect on them, except when there are distinguishable sub-groups within the relevant community.188 187 n.c. gen. stat. § 115c-218.45(3) (2016) (emphasis added). 188 this provision may be effective in integrating sub-communities that may be marginalized within the community. even this, however, would depend on the way the mission of the school was determined. 68 columbia journal of race and law [vol. 7:1 further, some of the provisions in this category focus on charter school efforts rather than on outcomes. thus, a charter school may be in compliance with the legislation, so long as it has made a sufficient effort to comply. this includes instances where the school ultimately failed to achieve a reflective student composition.189 moreover, even when legislation requires reflective outcomes, the provisions are sometimes softened. for example, some legislation state that the composition of students should be reflective, “if practicable,”190 “to the maximum extent practicable,”191 or it should “reasonably reflect” student composition in the school district.192 perhaps most importantly though, all these provisions focus on racial and socioeconomic composition within charter schools. as such, they are designed to contend with concerns of worsening racial and socioeconomic segregation within rec charter schools. however, they do not address the concerns of creaming and cropping. a charter school may demonstrate racial diversity and can reflect the ethnic composition of the district yet still cause creaming and cropping. to capture the problems of creaming and cropping, the focus of the legislation must shift from merely examining student composition within charter schools to a more comprehensive examination of the charter school within its surroundings. this requires checking the influence of the charter school on the social composition and peer effects in the theoretically, the school’s mission could be determined in such a way that would exclude specific sub-communities from it. 189 see e.g., s.c. code ann. § 59-40-70 (2014). in the case of south carolina, when a charter school doesn’t reflect the general population, the applicant pool is checked for discriminatory policies. however, the applicant pool in an rec charter school is also expected to be homogeneous, making this provision ineffective. 190 nev. rev. stat. § 386.580(1) (2015). 191 n.j. stat. ann. § 18a:36a-8(e) (2016). 192 n.c. gen. stat. § 115c-218.45(3) (2016). no. 1:1] religious, ethnic, and cultural charter schools 69 surrounding public schools, which is the promise of the third strategy. there is a further problem with the provisions detailed above inasmuch as they are interpreted as requiring charter schools to give preference in enrollment to students according to race. if this is indeed the case, then these provisions may also be subject to constitutional challenges because they explicitly refer to students’ race as a primary factor in admission to schools.193 in the 2007 landmark parents involved decision,194 the supreme court struck down two programs designed by boards of education to promote racial diversity that explicitly used race as a factor in student assignment. one program in seattle introduced race as a tie-breaker in schools that were not racially balanced. under this program, when deciding between two applications with equal merit, racial minorities were preferred.195 in the second program, in jefferson county, oversubscribed schools were required to use weighted lotteries, in a manner that would promote racial balance.196 the majority in parents involved was not convinced that the defendants had seriously considered race-neutral alternatives to their policies that could promote diversity.197 they were also not persuaded that the racial classifications used were 193 see suhrid s. gajendragadkar, the constitutionality of racial balancing in charter legislation, 106 colum. l. rev. 144 (2006) (arguing that “strong” racial balancing provisions are not sufficiently narrowly tailored to survive strict scrutiny, whereas “weak” provisions are. the article precedes the decision in parents involved, therefore the legal analysis will have likely changed). see also green & oluwole, supra note 163, which stresses the distinction between provisions of mandatory and hortatory racial balance: between provisions that prescribe a stated percentage of reflectiveness and provisions requiring indeterminate measures of racial balance. 194 parents involved in community schools v. seattle school district no. 1, 551 u.s. 701 (2007). 195 id. at 711–13. 196 id. at 716–17. 197 id. at 722–25. 70 columbia journal of race and law [vol. 7:1 necessary in order to promote diversity.198 finally the court opined that the programs did not include a meaningful individualized review of student assignments.199 therefore, the supreme court found that both programs were not sufficiently narrowly tailored to meet their goals.200 justice anthony kennedy, the swing vote in parents involved, outlined some of the possible measures that school boards would be allowed to pursue in order to promote diversity and that would be viewed as narrowly tailored. these measures include “strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.”201 other possibilities in the same vein (though not detailed in the decision) include making schools accessible and attractive to diverse communities by suggesting courses that appeal to groups underrepresented in the school population; making the public sphere in schools more inviting to them; and so forth. the implication of the parents involved ruling is that when designing programs for promoting racial diversity, school districts must first consider racially neutral measures that do not target specific students and treat them differently because of their race. additionally, when race is taken into account in individual assignment decisions, districts are required to maintain an individualized process of student assignment that considers multiple factors in addition to 198 id. at 725–33. 199 id. at 733–35. 200 id. at 745. justice kennedy concurred with the majority that the programs were not sufficiently narrowly tailored. however, he joined the dissent in stating that diversity in k–12 education is a compelling state interest. id. at 783, 790 (kennedy, j., concurring). 201 id. at 789. no. 1:1] religious, ethnic, and cultural charter schools 71 race.202 in light of the supreme court’s ruling in parents involved, charter legislation that entails treating specific students differently on account of their race may be deemed insufficiently narrowly tailored and may not withstand judicial review.203 choosing a location for a charter school in light of the goal to create a reflective student body, as some states have done, may hold more promise in abating the challenges to rec charter schools.204 a school’s location has an important effect on enrollment patterns because location and transportation are significant obstacles that disadvantaged students face in accessing high quality schools. choosing a location is no simple matter for charter schools that are often required to fend for themselves in acquiring suitable campuses. sharing buildings that belong to the religious or ethnic community is therefore often the most convenient option for rec charter schools. however, this entails that the school will be located in proximity to the concentrations of families of the community, which may aggravate segregation. additionally, it is unlikely that merely choosing a location can fully appease the egalitarian objection. it is not always 202 following parents involved, the united states department of education office for civil rights and the united states department of justice civil rights division issued joint diversity guidelines for school districts, in which they detail the measures that school districts may adopt in order to promote diversity in a constitutional manner. the guidelines advise school districts to first examine race neutral measures, and then use generalized race-based approaches that do not refer to any specific student. individualized racial examination should be used as a last resort, and be narrowly tailored to the specific goals of the district. in these cases, race may be considered alongside other considerations in assessing a student’s assignment. in any case, “no student should be insulated—based on his or her race—from an assessment or comparison to all other students’ applicants.” see u.s. department of justice and u.s. department of education, guidance on the voluntary use of race to achieve diversity and avoid racial isolation in elementary and secondary schools, http://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese201111.html [https://perma.cc/zg3p-w2yr]. 203 see gajendragadkar, supra note 193. 204 minn. stat. § 124e.11(a)(3) (2015); mo. rev. stat. § 160.410(2)(1) (2016); conn. gen. stat. § 10-66bb(c) (2015). 72 columbia journal of race and law [vol. 7:1 possible to find a location that promotes diversity and does not cause creaming or cropping. insisting on a location that promotes integration and prevents creaming and cropping may unduly impede the establishment of rec charter schools. therefore, although some states have instated rigorous provisions aiming to promote reflective enrollment in charter schools, as was detailed in this section, this second strategy is also insufficient to contend with the special challenges that rec charter schools pose. c. examining the effect of charter schools on traditional public schools the main barrier that prevents the first two strategies from mitigating concerns of equality is that they focus exclusively on enrollment policy and student composition within charter schools. as such, they miss the effects that charter schools have on traditional public schools, namely creaming and cropping. in order to efficiently cope with these processes, it is just as important to examine the composition of the student body in traditional public schools as it is to examine it in the charter school itself. the third strategy does just that. only a few states have adopted legislation in this vein. delaware charter school law represents the most comprehensive measure, stating that: an authorizer considering an application . . . shall also consider the potential positive and negative impact of the proposed new school . . . on the schools and the community from which the charter school's new students will likely be drawn . . . determining whether the proposed new school or expansion is contrary to the best interests of the community to be served, including both those students likely to attend the charter school and those students likely to attend traditional public schools in the no. 1:1] religious, ethnic, and cultural charter schools 73 community . . . this information regarding the charter school’s impact may be the basis for conditions imposed on the charter school.205 connecticut’s education code requires the charter application to specify the measures in its enrollment policy that will ensure diversity,206 and instructs the state board of education to consider, when deciding whether to grant a charter, the effect a charter school will have on the reduction of racial, ethnic and economic isolation in the region in which it is to be located.207 arkansas requires authorizers to carefully consider the “potential impact of an application for a public charter school on the efforts of a public school district or public school districts to comply with court orders and statutory obligations to create and maintain a unitary system of desegregated public schools.”208 some states do not require authorizers to consider the effect on traditional public schools explicitly, but create an institutional setting in which such arguments can be heard. thus, some states, including connecticut, 209 rhode island,210 oregon,211 new mexico,212 and massachusetts,213 require holding a public hearing before approving an application. another measure that may have important, though indirect, 205 del. code. ann. tit. 14., § 511(b)(3)–(4) (2015) (emphasis added). 206 conn. gen. stat. § 10-66bb(d)(8)(c) (2016). 207 id. at § 10-66bb(c). 208 ark. code ann. § 6-23-106(a) (2013). 209 conn. gen. stat. § 10-66bb(f) (2015). 210 r.i. gen. laws § 16-77.2-3(b) (2010). 211 or. rev. stat. § 338.055 (2) (2014). 212 n.m. stat. ann. § 22-8b-6(j) (2015). 213 mass. gen. laws § 89(h) (2014). “before final approval to establish a commonwealth charter school, the board shall hold a public hearing on the application in the school district in which the proposed charter school is to be located and solicit and review comments on the application from the local school committee of each school district from which the charter school is expected to enroll students and any contiguous districts.” 74 columbia journal of race and law [vol. 7:1 effects on these issues are the requirements included in the connecticut legislation to collect data regarding diversity and the measures taken to promote it.214 while this measure does not affect student composition in any specific case, it does provide important indirect benefits. obtaining data regarding the effects of an education policy is a crucial step in designing desirable and effective policies and adapting them to the local circumstances. one of the difficulties in promoting effective education policy is the lack of reliable studies regarding their impact. this measure, therefore, is an auxiliary step that may be useful in complementing any other measure adopted by legislators.215 additionally, while this article focuses on state legislation, states can also use regulations to address these issues. in new jersey, for example, regulations concerning charter petitions require the commissioner of education to assess the student composition of a charter school and the effects that the loss of students may have on the district.216 the commissioner of education is also required to make an annual assessment of active charter schools,217 and if it is found that a charter school creates a segregation effect, the commissioner can impose a remedy.218 214 conn. gen. stat. § 10-226h (2012); conn. gen. stat. § 1066cc(b)(4) (2015). see also mass. gen. laws § 89(kk) (2016). 215 the importance of “research based evidence” has been stressed by courts with regard to the adequacy litigation, in which courts required states to supply evidence as to the funding required in order to supply adequate education. see deborah a. verstegen, towards a theory of adequacy: the continuing saga of equal educational opportunity in the context of state constitutional challenges to school finance systems, 23 st. louis u. pub. l. rev. 499, 503, 512 (2004); william s. koski, of fuzzy standards and institutional constraints: a re-examination of the jurisprudential history of educational finance reform litigation, 43 santa clara l. rev. 1185 (2003). 216 n.j. admin. code § 6a:11–2.1(j) (2014). 217 id. at 6a, 6a:11–2.2(c). 218 in re charter school appeal of greater brunswick charter school, 753 a.2d. 1155, 1164 (n.j. super a.d. 1999). no. 1:1] religious, ethnic, and cultural charter schools 75 the third strategy has several important advantages. the first needs little explanation. if the problem, in terms of equality, lies in the effects that rec charter schools have on other schools, then this is what should be examined by chartering agencies. the third strategy, therefore, expresses a better understanding of educational realities than the other two strategies. another advantage of the third strategy is that it enables authorizers to consider the unique circumstances of each case instead of applying uniform measures that do not necessarily suit the school. as was described in part iii, educational processes, such as creaming and cropping, have a certain logic to them, but are also highly contingent on specific circumstances. therefore, even if we can make some wellfounded evaluations as to the expected influence certain schools may have, the circumstances of each case can make a difference. making decisions in each case according to its merits ensures that rec charter schools that do not negatively impact traditional public schools will be allowed to operate and benefit their students and communities. it also suggests that schools will be able to learn from positive experiences in which rec charter schools have not had a negative effect on surrounding schools. additionally, authorizing agencies can approve a charter while conditioning it on specific actions that may minimize creaming and cropping, such as strengthening traditional public schools or reaching out to diverse populations and encouraging them to enroll. when such actions can effectively decrease the problem, religious charter schools will be allowed to flourish with minimal negative effects for other students. granting discretion to authorizers also means that they will, in certain cases, be allowed to authorize a charter school even when it creates creaming or cropping and worsens segregation. the negative effects that rec charter schools may have are not the conclusive consideration in any specific case, and authorizers will have to determine whether the benefits that a charter school holds outweigh its shortcomings. there is a certain type of case in which 76 columbia journal of race and law [vol. 7:1 allowing such discretion is especially important: when rec charter schools offer quality education for children from disadvantaged communities who have been deprived of meaningful educational opportunities. in these cases, chartering agencies may be justified in approving them despite the negative effect they may have on traditional public schools. the third strategy allows chartering agencies to strike a balance between the interests of rec charter schools’ founders and students and the interests of traditional public school students. in addition to its effectiveness, the third strategy does not run afoul of the supreme court’s ruling in parents involved.219 although its aim is promoting racial diversity (along with minimizing the harm of creaming and cropping), this strategy does not entail targeting specific students according to their race. the advantages noted above with regards to the third strategy also apply to charter schools in general. still, the special characteristics of rec charter schools justify analyzing them separately. the processes described are more severe in rec charter schools, and the strategies that can potentially mitigate challenges in regular charter schools are less effective.220 admittedly, adopting the third strategy may entail restricting rec charter schools when they create severe damage to public schools. if the assumptions in part iii turn out to be accurate, this would not be the exception, but rather the rule. still, only charter schools that have negative effects on traditional public schools would be restricted, and even those would be able to take measures in order to prevent creaming and cropping. when the harm cannot be rectified, charter applications would be denied (or revoked). despite the restrictive consequences, this should not be seen as a disadvantage of the strategy. as was shown in this article, legislators in all states with charter schools have attempted 219 parents involved in community schools v. seattle school district no. 1, 551 u.s. 701 (2007). 220 see supra part iii-c. no. 1:1] religious, ethnic, and cultural charter schools 77 to prevent racial segregation using different legal strategies. the third strategy follows their lead, differing merely in its better chances to reach this shared goal. before concluding, one concern regarding this strategy should be noted—namely the concern that the provisions will not be implemented. in order to be effective, charter agencies and state departments of education must be committed to these aims and be willing to actually put them into practice and deny charter petitions in cases of racial segregation, creaming and cropping. this is easier said than done. multiple political, social, and financial pressures are involved in the establishment and operation of charter schools. organizations, parents, and businesses can have vested interests in specific schools or in the movement as a whole, and decisions denying applications for charters are often unpopular. this is especially so as the restrictions at hand are aimed at successful charter schools rather than at those that fail. therefore, it remains to be seen whether the legislation in delaware, for example, will be effective in preventing racial segregation, creaming, and cropping.221 for example, it would be significant to observe whether charter schools would, in fact, be denied authorization on the ground that they cause harm to traditional public schools. furthermore, it would be important to examine whether the existence of this provision encourages charter school leaders to design their schools with awareness and responsibility to the other public schools in their area, so that they avoid creaming and cropping. 221 the delaware department of education website allows access to charter applications and applications for renewal or modification of charters. upon completing this article, there was only one application dated from after the new legislation, the great oaks charter school in wilmington. the application states that the targeted population is children with educational deficits, low income students and special education students. the application details the expected effect on the education in wilmington in general. great oaks charter school-wilmington school proposal, del. dep’t. of educ. http://www.doe.k12.de.us/cms/lib09/de01922744/centricity/domain/151/g reatoaksapplschoolnarrative.pdf [https://perma.cc/bnv4-zsk9]. 78 columbia journal of race and law [vol. 7:1 in considering the implementation of these measures, it seems likely that an explicit legislative provision such as the one in delaware will be more effective than general provisions that require examining whether the charter school is beneficial to the community, and legislation will be more effective than regulations. creating procedures that ensure the consideration of charter school effects on public schools, such as adding a question concerning this in the forms used in applications and renewals, or mandating responses from public schools and parent groups, may also be an effective way to force decision makers to take these effects into consideration. this may also help groups of parents or traditional public schools oversee the implication of these provisions. while the effectiveness of these measures depends on the fervor with which decision makers in each of the states protect traditional public schools, some of these measures can help make their task more feasible. assuming effective implementation, allowing chartering agencies to restrict the establishment and operation of charter schools when they have negative effects on public schools is the best strategy currently available to address the egalitarian challenges posed by rec charter schools. states that are committed to this end would therefore be advised to adopt measures of this kind. v. conclusion religious, ethnic, and cultural charter schools are becoming commonplace, serving growing and diverse populations. despite being a relatively new phenomenon, rec charter schools have already attracted public and legal attention, primarily concerning questions of the establishment of religion. this article tackled a different challenge that they raise—namely, that rec charter schools might worsen racial and ses segregation, and have negative effects on traditional public schools. while charter schools in general face challenges concerning their diversity and their effect on public schools, the unique characteristics of rec no. 1:1] religious, ethnic, and cultural charter schools 79 charter schools make them especially prone to these processes. this article aimed to highlight these special challenges that have been overlooked thus far, examine and evaluate the legal solutions, and recommend the most promising solutions. although states around the country have undertaken legislative efforts to ensure equal access to charter schools and student diversity within them, only a few thus far have chosen a legislative strategy that offers an appropriate response to the challenge. requiring charter authorizers to consider the effect that rec charter schools have on the education that all students receive is the measure best suited to allow rec charter schools to continue to offer innovative and diverse educational possibilities to the families that seek them, without compromising traditional public school students’ educational opportunities. a growing number of states will likely be confronted with the challenges of rec charter schools in the coming years. it is therefore imperative that states adopt legislation that can help ensure the core values of equality in education. the perverse logic of immigration detention: unraveling the rationality of imprisoning immigrants based on markers of race and class otherness césar cuauhtémoc garcía hernández * karl marx and friedrich engels close the first part of the communist manifesto by writing, “what the bourgeoisie, therefore, produces, above all, is its own grave-diggers. its fall and the victory of the proletariat are equally inevitable.”1 more than a century and a half after marx and engels first published that hope, the modern proletariat remains far from manifesting itself as the “revolutionary class” that the pair envisioned.2 the distance between marx and engels’ prediction and what has transpired in the united states is due in large part due to our nation’s lifelong commitment to adding the wedge of race into every aspect of our lives. white workers are positioned against non-white workers, the multi-axis category in which most immigrants are initially placed even if they later “become” white, in a battle for pieces of the figurative, and sometimes literal, pie. rather than the deracinated class unity that marx, engels, and countless marxists since them imagined, the united states has been and remains a society committed to distributing privilege through the markers of race and class. privilege and its corollary, subordination, attach to the axes of race and class. these axes cannot be divorced from one *  assistant professor, capital university law school. professor garcía hernández publishes crimmigration.com, a blog about the convergence of criminal law and immigration law. many thanks to anthony paul farley for organizing this panel, to zanita fenton, neil gotanda, nancy ota, and donna young for their collaboration, and to karla mari mckanders for her helpful comments on a draft of this essay. special thanks to margaret b. kwoka. 1  karl marx & friedrich engels, the communist manifesto 79 (joseph katz ed., samuel moore trans., washington square press 1964) (1848). 2  id. at 75. 2012 columbia journal of race and law 354 another; they are joint hallmarks of the distribution of legal privilege.3 today, as in years past, race and class occupy central space in the nation’s immigration imagination. visions of impoverished masses streaming across the southern border, brown bodies hiding under cover of darkness, terrorize many by raising the specter of a silent invasion. in response, political actors nationwide have rallied around an anti-immigrant fervor while the federal government has adopted a mass incarceration scheme as part of its immigration law enforcement strategy.4 in an effort to explain the massive growth of immigration imprisonment, this essay explores the use of race and class as tools for policing immigration law. the essay does this by contemplating the effect of an immigration law scheme that, at its most fundamental, requires sorting desirable immigrants from undesirable immigrants, and that, in recent years, has accomplished this sorting through increased reliance on criminal records. placing these two features of contemporary immigration law within the context of two decades-old forms of indisputably racialized policing—mass incarceration of black and brown people for criminal law violations and the supreme court’s sanctioning of racial profiling in immigration law policing—the essay concludes that it was inevitable for penal imprisonment trends to taint immigration law enforcement with raced and classed mass incarceration. i. the evolving shadow world of prison in a moving dissent regarding a constitutional claim brought by a prison inmate, justice william brennan thought it necessary to first discuss the status of prisoners as they relate to the rest of us: “prisoners are persons whom most of us would rather not think 3  here, the essay borrows from critical race, critical race feminism, and latcrit theory’s development of intersectionality—the notion that all people have multiple identities and that subordination frequently occurs at the intersection of multiple identities. see frank rudy cooper, against bipolar black masculinity: intersectionality, assimilation, identity performance, and hierarchy, 39 u.c. davis l. rev. 853, 863 (2006). 4  see, e.g., michael chertoff, tools against terror: all of the above, 32 harv. j.l. & pub. pol’y 219, 227 (2009) (describing the perceived danger posed by cross-border migration and justifying detention). 355 the perverse logic of immigration detention vol. 1:3 about,” he wrote.5 “banished from everyday sight, they exist in a shadow world that only dimly enters our awareness.”6 brennan’s observation has been manifested millions of times over on young brown and black people whose lives have been so heavily criminalized by every “crime control” campaign in recent memory.7 yet no matter how many bodies have been thrown in jail, the thirst for prisoners has not been quenched.8 generations of young brown and black people have taught us that a jail that is built will be filled. this pattern has repeated itself for decades with such persistence that imprisonment is now a stage of life for a large swath of the country’s young people of color. public consciousness and political will today are steeped with acceptance of mass incarceration of brown and black people comparable only to the now discredited forms of mass incarceration from generations past—slavery and japanese internment. decades of imprisoning immense numbers of people-cum-criminals have immunized us to the trauma and cost of locking up so many people. surveilling and holding brown and black bodies has become an acceptable method for dealing with the “problem” of brown and black “criminality.”9 prisons are the answer for preventing the undesirables from poisoning the communal well. in the years since brennan described penal institutions in 1987, institutions that at the time were reserved primarily for 5  o’lone v. estate of shabazz, 482 u.s. 342, 354 (1987) (brennan, j., dissenting). 6  id. 7  see william j. stuntz, unequal justice, 121 harv. l. rev. 1969, 197071 (2008) (listing imprisonment rates for blacks, latinos, and whites). 8  see michael tonry & matthew melewski, the malign effects of drug and crime control policies on black americans, 37 crime & just. 1, 9-13 (2008) (detailing the disproportionate imprisonment rate of black people, pointing out that “[t]he nearly seven-to-one [black-white] difference in imprisonment rates continued nearly unchanged for a quarter century”). 9  see marc mauer, race to incarcerate 9-10 (1999) (arguing that “a massive prison system” that developed in the last decades of the twentieth century “virtually guarantee[s] a national commitment to a high rate of incarceration”); id. at 81 (describing prison as one of several options available for addressing criminal behavior); id. at 134, 135 (explaining that drug crimes are sanctioned more leniently when the perceived violators are white and more severely when the perceived violators are black); see also kelly lytle hernández, migra!: a history of the u.s. border patrol 120 (2010) (explaining that “[t]he consequences were high for persons of mexican origin in the u.s.-mexico borderlands as the border patrol’s net of surveillance expanded in the region”). 2012 columbia journal of race and law 356 criminal law violators, another prison shadow world has developed. immigration prisons, once a footnote in the prison narrative, have become a central component of the nation’s current imprisonment frenzy. this shadow world is enormous. the number of individuals detained in conjunction with civil immigration proceedings has more than tripled in seven years, going from 122,783 prisoners in 2003 to 383,524 in 2009.10 most immigration prisoners are not simply awaiting a seat on a bus or airplane that will take them to their country of origin. on the contrary, most are in immigration prison awaiting an immigration judge’s decision on their removability—the technical phrase for determining whether someone can stay or must leave the country.11 to house almost 400,000 people, the department of homeland security (dhs) relies on a nationwide network of approximately 300 jails.12 imprisoning hundreds of thousands of people spread throughout hundreds of facilities naturally comes with a substantial price tag. the immigration and customs enforcement (ice) agency’s detention and removal operations, the unit of dhs responsible for immigration detention, cost $2.55 billion in fiscal year (fy) 2010, including $1.77 billion for custody expenses alone.13 the agency requested a $2.6 billion detention and removal budget for fy 2011, including $20 million more than in previous years to 10  see human rights watch, locked up far away: the transfer of immigrants to remote detention centers in the united states 2 (2009) (providing data for fiscal year 2003), available at http://www.hrw.org/sites/default/files/reports/us1209web.pdf; transactional records access clearinghouse, syracuse univ., changing composition of ice detainees, fy 2005—fy 2010 (1st quarter), http://trac.syr.edu/immigration/reports/224/include/1.html (providing data for the 2009 fiscal year). 11  see donald kerwin & serena yi-ying lin, migration policy inst., immigration detention: can ice meet its legal imperatives and case management responsibilities? 1 (sept. 2009), http://www.migrationpolicy.org/pubs/detentionreportsept1009.pdf. a migration policy institute study of detention data provided by dhs found that “[o]f the 32,000 immigrants in ice custody [as of january 25, 2009], 18,690 had pending removal cases (in other words, they had not received final orders of removal).” id. at 16. 12  see dora schriro, u.s. dep’t of homeland sec., immigration detention overview and recommendations 2 (2009), http://www.midwesthumanrights.org/sites/midwesthumanrights.org/files/09 1005_ice_detention_report-final.pdf. 13  see u.s. immigration & customs enforcement, fact sheet: ice fiscal year 2010 enacted budget 2 (2010), http://www.ice.gov/ doclib/news/library/factsheets/doc/2010budgetfactsheet.doc. 357 the perverse logic of immigration detention vol. 1:3 increase the number of available detention beds.14 despite the growing price tag, policymakers seem unperturbed by the cost of detaining people awaiting a decision on their ability to stay in the country. nothing suggests that this trend will abate in the near future. currently the obama administration’s chief complaint about the number of detainees seems to be that it is doing all it can with limited resources, suggesting that more money would result in more prisoners.15 already dhs oversees the single largest prison population in the country, eclipsing the next largest custodial agency, the federal bureau of prisons, by almost 200,000.16 while policymakers and pundits contemplate the virtues of immigration law reform, comprehensive or piecemeal, and demands for boosting border security go on unabated, the doors of immigration prisons, it seems, will remain open. ii. the logic of immigration imprisonment although the existence of almost 400,000 jailed individuals on suspicion of violating civil immigration laws should be astounding, the undeniable logic of immigration imprisonment is that it is entirely rational given immigration law’s underlying premise of distinguishing between desirable and undesirable people. jailing is a necessary element of our desire to sort the good from the bad. there can be no sorting without order and no order without control. in turn, government officials charged with watching and 14  see the fiscal year 2011 budget for u.s. immigration and customs enforcement: hearing before the h. comm. on appropriations subcomm. on homeland sec., 111th cong. (2010) (statement of john morton, assistant sec’y, dep’t of homeland sec.), available at http://www.dhs.gov/ ynews/testimony/testimony_1271443011074.shtm [hereinafter hearings]. 15  see memorandum from john morton, assistant sec’y, dep’t of homeland sec., to all ice employees 1 (n.d.), american immigration lawyers association, ice civil enforcement priorities memorandum, aila infonet doc. no. 10062989 (june 29, 2010) (explaining that “ice must prioritize the use of enforcement personnel, detention space, and removal resources” because it “only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the united states”) (on file with the columbia journal of race and law). 16  according to the pew center on the states, on january 1, 2010, the bureau of prisons counted 208,118 people under its control, texas had 171,249, and california had 169,413. see the pew center on the states, prison count 2010: state population declines for the first time in 38 years 7 (apr. 2010), http://www.pewcenteronthestates.org/uploaded files/prison_count_2010.pdf?n=880. 2012 columbia journal of race and law 358 sorting 22 million people, the number of people in the united states who are not citizens17 and could be subject to removal for violating immigration laws, cannot control the sorting process without tightly holding the bodies of the potentially unfit. prisons, then, are immigration law’s necessary purgatory, the physical in-between space that must exist to facilitate the welcoming embrace of the “good immigrant” and dhs’s concerted efforts to remove unwanted immigrants. to regulate this system of deserving and undeserving, dhs must police the masses not only of the undeserving, but also of the potentially undeserving. that group of potentially undeserving is almost coextensive with the immigrant population. the method perfected in the context of criminal law enforcement for sifting through the masses to identify the undeserving is to target people marked by symbols of race and class-based otherness, threatening to imprison those not in prison and, as justice brennan suggested, rendering invisible those in prison.18 potential undesirables must be watched and threatened with imprisonment at the moment that they cross the line into undesirability. to determine whether immigrants have crossed that line, the immigration and nationality act (ina) relies on arrest and detention.19 even if dhs relaxed its strict interpretation of its detention authority—perhaps to allow people with a bona fide argument that they have not crossed the line into undesirability20 to remain out of jail—they nonetheless must be watched by government agents: their address tracked, their physical presence demanded in immigration court.21 at all times the threat for 17  u.s. census bureau, the 2011 statistical abstract: the national data book tbl.42, http://www.census.gov/compendia/statab/ cats/population/native_and_foreign-born_populations.html (indicating that in 2008 there were 11,777,000 males and 10,437,000 females who were not born as u.s. citizens and have not been naturalized). 18  see paul butler, let’s get free: a hip-hop theory of justice 43-45 (2009) (linking the criminalization of opium, cocaine, and marijuana to its use by chinese men, blacks, and mexicans, respectively); mauer, supra note 9, at 126 (contending that the image of the criminal is that of “a baggy pants-wearing black kid with a handgun”). 19  see immigration and nationality act (ina) § 236(a), pub. l. no. 82-414, ch. 477, 66 stat. 163 (1952) (codified as amended at 8 u.s.c. § 1226(a) (2006)). 20  see peter l. markowitz, barriers to representation for detained immigrants facing deportation: varick street detention facility—a case study, 78 fordham l. rev. 541, 565 (2009). 21  see ina § 240(b)(5) (identifying the consequences of failing to 359 the perverse logic of immigration detention vol. 1:3 noncompliance must be imprisonment: stray from the announced course and the mighty hand of the law will snatch you up and throw you into immigration’s purgatory perhaps for a year or more.22 this threat of imprisonment holds true no matter where we draw the line between which people congress, through the ina, deems wanted and which it deems unwanted—the non-criminals from the “criminal aliens,” the person convicted of murder from the person convicted of jumping a subway turnstile, or any other boundary. so long as our immigration law scheme is premised on the distinction between desirable and undesirable people, all efforts to sort people into these categories necessarily destine those marked with the symbols of potential undesirability to suffer under the watchfulness of the coercive apparatuses of our immigration policing institutions. the markers of potential undesirability are no different than those we have used for decades to build the mass shadow world of penal imprisonment—race and class. there is no constitutional violation, wrote justice lewis powell, when a federal agent tasked with enforcing immigration laws more closely scrutinizes someone “largely on the basis of apparent mexican ancestry.”23 in a companion decision one year earlier, justice powell explained, “[t]rained officers can recognize that characteristic appearance of persons who live in mexico, relying on such factors as the mode of dress and haircut.”24 this presumption of illegality, powell makes clear, attaches according to the usual outward markers of exclusion—race and class. this stigma unmistakably attaches based on a look and not with regard to citizenship status. people who look mexican, powell’s words clearly suggest, are legitimate targets of suspicion in the nation’s efforts to sort the wanted from the unwanted.25 appear for a hearing in immigration court); id. § 265(a) (explaining the address registration requirement imposed on all non-citizens); see also form ar-11, alien’s change of address card (providing a uniform form that all noncitizens subject to ina § 265(a) must use to inform the department of homeland security of their residence). 22  see schriro, supra note 12, at 6 (explaining that “about 2,100 aliens, are detained for a year or more”). 23  united states v. martinez-fuerte, 428 u.s. 543, 563 (1976). 24  united states v. brignoni-ponce, 422 u.s. 873, 884-85 (1975). 25  amici curiae in the litigation against arizona senate bill 1070 provide contemporary examples of race-based suspicion. see brief for friendly house as amici curiae supporting respondent at 3-6, united states of america v. state of arizona, no. civ. 10-1413 (9th cir. 2010) (no. 10 2012 columbia journal of race and law 360 iii. the final ingredient enter the convergence of criminal law and immigration law. an immigration law regime that requires sorting, widespread public desensitization to and accommodation of mass penal imprisonment, and the constitutional sanctioning of raced and classed policing of people suspected of immigration law violations did not alone produce mass incarceration of people suspected of immigration law violations. these three trends meandered through the years with minimal overlap until immigration law entered its newest phase— the feverish use of immigration law as an extension of criminal law. the steadfast convergence of criminal law and immigration law has characterized immigration law since the late 1980s, but did not reach a frenzy until 1996. in that year, in response to the 1995 bombing of the federal office building in oklahoma city, congress enacted the anti-terrorism and effective death penalty act (aedpa)26 and the illegal immigration reform and immigrant responsibility act (iirira).27 together these statutes vastly increased the number of criminal offenses that could result in removal, drastically expanded the severity of removable offenses to include relatively minor crimes, provided the legal authorization for local governments to police immigration law through cooperative agreements with the federal government, and eliminated relief that had been part of immigration law for decades.28 since then, removal as a result of involvement with the criminal law system has expanded exponentially. once a relatively rare event, removal of individuals convicted of a crime now occurs 16645). 26  antiterrorism and effective death penalty act (aedpa) of 1996, pub. l. no. 104-132, 110 stat. 1214 (codified as amended in scattered sections of 28 u.s.c.). 27  illegal immigration reform and immigrant responsibility act (iirira) of 1996, pub. l. no. 104-208, 110 stat. 3009 (codified at 8 u.s.c. § 1226(e) (2006)). 28  see, e.g., aedpa § 440(e) (adding several criminal offenses to the definition of “aggravated felony” including some gambling offenses and document fraud offenses); aedpa § 440(d) (eliminating a decades-old form of relief available under ina § 212(c), 8 u.s.c. § 1226(a) (2006), for individuals convicted of an aggravated felony or a number of other offenses); iirira § 321 (further adding to the list of offenses constituting an “aggravated felony,” including certain theft and tax evasion offenses); iirira § 304 (repealing ina § 212(c)); iiraira § 133, 110 stat. 3009–546, 3009-563 to 64 (enacting 287(g) authorization). 361 the perverse logic of immigration detention vol. 1:3 daily many times over.29 more importantly, the presence of “criminal aliens” serves as the justification for virtually all immigration policing efforts today. it is of little consequence that many efforts billed as targeting “criminal aliens” catch more people who do not fall into this category than those who do.30 the threat of the “criminal alien” is sufficient to justify targeting many more who might be “criminal aliens.” immigration policing tactics that are intended to siphon out the “criminals” inevitably must use the markers of race and class that criminal law uses to identify its targeted population. because contemporary immigration law has become interwoven with criminal law, the potentially undeserving are the potential “criminal aliens” lying in our midst. these people, criminal law enforcement institutions have so readily announced, are race and class outsiders— people of color and poor people.31 29  see juliet stumpf, fitting punishment, 66 wash & lee l. rev. 1683, 1715-18 (2009); see also javier bleichmar, deportation as punishment: a historical analysis of the british practice of banishment and its impact on modern constitutional law, 14 geo. immigr. l.j. 115, 149 (1999) (noting that a criminal conviction could not serve as the basis for deportation until 1917, thereby implying that no individuals were deported as a result of a criminal conviction prior to that year); human rights watch, forced apart (by the numbers): noncitizens deported mostly for non-violent offenses 19 (2009) (describing dhs data indicating that between april 1, 1997 and august 2007, “deportations occurred every day” for crime-based reasons). 30  according to dhs, in fiscal year 2009, ice detained approximately 383,524 people and removed 128,345 (approximately one-third) for a crime-related ground of removal. see u.s. dep’t of homeland. sec., office of immigration statistics, immigration enforcement actions annual report: 2009, 3-4 tbl.4 (2010), http://www.dhs.gov/ xlibrary/assets/statistics/publications/enforcement_ar_2009.pdf. in addition, the government accountability office reported that “some participating agencies are using their 287(g) authority to process for removal aliens who have committed minor crimes, such as carrying an open container of alcohol.” u.s. gov’t accountability office, immigration enforcement: better controls needed over program authorizing state and local enforcement of immigration law 4 (2009). 31  here again the concept of intersectionality, supra note 3, provides a crucial theoretical framework for understanding the targeting of people because they are poor and people of color. kevin r. johnson makes this connection explicitly in the immigration context when he argues, “poor and working immigrants of color are marginalized on multiple grounds. they are generally subordinated in american social life based on characteristics of race, class, and immigration status.” see kevin r. johnson, the intersection of race and class in u.s. immigration law and enforcement, 72 law & contemp. probs. 1, 5 (2009). 2012 columbia journal of race and law 362 evidence showing that immigrants are actually less prone to criminal behavior than native born individuals32 is no match for popular perceptions fueled by decades of targeting the communities that immigrants quickly become a part of and by news stories of death and destruction across the developing world. the fact that the vast majority of today’s immigrants come from latin america, with the single largest number from mexico,33 allows for quick association of today’s immigrants with heavily criminalized latina/o communities. add to this the daily media reports of violence and chaos raging across latin america, haiti, jamaica, and any number of african nations—from the latin american and african civil wars of the 1980s and 1990s to the jamaican and mexican drug cartel wars of the 2000s34—and a perception blooms that immigrants bring criminal tendencies, if not a formal relationship with criminal networks, with them. in the public imagination, then, immigrants from these regions become part of the same impoverished brown and black communities that provide the bodies that have filled our penal institutions for decades. one new immigrant, this narrative suggests, is one new criminal. 32  see, e.g., ramiro martinez, jr., coming to america: the impact of the new immigration on crime, in immigration and crime: race, ethnicity, and violence 1, 10-12 (ramiro martinez, jr. & abel valenzuela, jr. eds., 2006). 33  see migration policy inst., ten source countries with the largest populations in the united states as percentages of the total foreign-born population: 2008, available at http://www.migration information.org/datahub/charts/10.2008.shtml (listing individuals originally from the following countries as comprising the largest percentage of the united states’ foreign-born population in 2008: mexico (30%), philippines (4%), india (4%), china (4%), vietnam (3%), el salvador (3%), korea (3%), cuba (3%), canada (2%), and the dominican republic (2%)). 34  see, e.g., randal c. archibold & damien cave, drug wars push deeper into central america, n.y. times, mar. 24, 2011, at a1 (describing the impact of mexico’s push to control drug traffickers on regional security); stephen foley, haitians go to polls amid violence and ballot station chaos, independent (u.k.), mar. 21, 2011, at 30 (describing instability in haiti); benjamin weiser & kareem fahim, after bloody manhunt in jamaica, a subdued court appearance in new york, n.y. times, june 26, 2010, at a17 (reporting on the arrest and prosecution of a reputed jamaican drug dealer); marlise simons, war crimes trial to hear from ex-liberia president, n.y. times, july 13, 2009, at a9 (describing the prosecution of former liberian president charles taylor for crimes allegedly committed between 1996 and 2002); peter huck, evil trade of the three franciscos, n.z. herald, apr. 4, 2009, at b5 (linking the mara salvatrucha gang to clandestine immigrant crossings into the u.s.). 363 the perverse logic of immigration detention vol. 1:3 shedding any pretense that race and class are not part of the immigration law enforcement regime, the supreme court’s sanctioning of the use of unabashedly raced and classed criteria to target policing efforts overtly adds those factors to the immigration policing suspicion calculus supported by popular perception of criminality. everyone who bears the signs that justice powell identified—the look of mexicanness, a certain unspecified haircut, an easily surmisable style of hat—must submit to the watchful eyes of those charged by the state to patrol the border between wanted and unwanted immigrants. for these potential scofflaws we have the remedy of choice for dealing with race and class outsiders in the criminal context: prison. iv. a prison is a prison is a prison congress has equipped the executive branch very well for this imprisonment task. the ina mandates that “[t]he attorney general shall arrange for appropriate places of detention . . . ,”35 and requires that “the attorney general shall detain the alien” during the removal period.36 congressional authorization to imprison—mere words on paper contained in the united states code—could any day be transformed into steel and concrete—or sometimes canvas tents sitting in the hot south texas sun. officially, facilities devoted solely to detaining immigrants are titled “detention centers” and “service processing centers.”37 35  ina § 241(g)(1), 8 u.s.c. § 1231(g)(1) (2000). in 2002, with the creation of the department of homeland security, the authority previously granted to the attorney general was transferred to the secretary of homeland security without changing the statutory language of § 241(g)(1) and numerous other ina provisions. see homeland security act of 2002, pub. l. no. 107296, 116 stat. 2135 (codified at 6 u.s.c. § 441 (2006)). 36  8 u.s.c. § 1231(a)(2). 37  see u.s. immigration & customs enforcement, detention and removal: immigration detention facilities, http://www.ice.gov/pi/dro/facilities. htm (last visited june 4, 2012) (listing “immigration detention facilities” none of which are described as “jails” or “prisons” except those facilities operated by local governments and that serve primarily as county jails); see also subhash kateel & aarti shahani, families for freedom: against deportation and delegalization, in keeping out the other: a critical introduction to immigration enforcement today 258, 263 (david c. brotherton & philip kretsedemas eds., 2008) [hereinafter keeping out the other] (“some would take issue with the term prison, because it is legally incorrect; in the eyes of the law, these prisoners are civil detainees. but the inmates are compelled to enter and stay. they sleep in dorms arranged body to body. they ask permission to go to the bathroom. their hands, feet, and waists are 2012 columbia journal of race and law 364 this nomenclature is perhaps an effort to distinguish these facilities from the jails and prisons where penal sanctions are meted out. despite the cleverness of the official titles, the wire rimmed perimeter that surrounds these facilities is called barbed-wire, the keepers are called guards, and that ever-present heaviness that fills the waiting rooms where families pray and the holding cells where prisoners sit is best described as despair. “they call immigration detention civil confinement, but prison is prison no matter what label you use, and prison breaks people’s souls, hearts, and even minds,” says former immigration prisoner malik ndaula.38 v. conclusion: the premise leads to the result our nation’s passion for surveilling and jailing nonwhite bodies today has turned with renewed vigor toward immigrants. in a society that embraces mass imprisonment, as does ours, imprisonment is not merely an understandable component of sorting the desirable from the undesirable. mass imprisonment is an inevitable feature of this sorting, and the most plausible manner to conduct this sorting is by following the markers of race and class that we have grown to see so well and embrace so unhesitatingly. immigration law policing has now undisputedly joined the criminal policing trends of recent decades during which individuals marked as race and class outsiders have been tossed into prison at what ought to be alarming rates. despite the marxist emphasis on class, the imprisonment frenzy apparent in immigration law enforcement today suggests that the melding of race and class outsider identities facilitates imprisonment in this context as it has in the criminal context. to ignore the role of race and class in immigration law policing is to render invisible the people who inevitably will be thrown behind barbed wire fences for little more than having the wrong look. shackled when they are moved from place to place. in other words, they are prisoners.”). 38  malik ndaula & debbie satyal, rafiu’s story: an american immigrant nightmare, in keeping out the other, supra note 37, at 241, 250. cjrl mcclellan f17-corrected.pdf dismantling the trap: untangling the chain of events in excessive force claims by cara mcclellan1 in the wake of repeated police shootings of unarmed black men and women, police departments across the country are focusing on de-escalation. yet federal courts reviewing fourth amendment excessive force violations are often unwilling to take into account how an officer’s pre-seizure conduct may have affected the need to use force during a civilian encounter. i argue that as part of the graham v. connor reasonableness analysis, courts reviewing excessive force claims should consider prior police conduct that impacted the need for force when the officer predictably causes the civilian to respond by employing an overly aggressive tactic. i provide examples of how traditional principles of causation in tort law could apply and provide a workable approach. moreover, i argue that the severity of the crime provides context that is essential to interpreting causation in the entire chain of events that occurs during the police-civilian interaction. “we were coming from playing basketball and some of us weren’t even wearing our t-shirts. [the police] started patting us down like we’re gonna have a gun in our shorts. one of the police officers actually took the food i just bought and threw it down and was like ‘you got an issue with what i just did?’ i guess they were trying to start an issue where they could arrest me. i wanted to talk back. i actually started talking back, but then i just got quiet. ’cause i’m basically falling for their trap. if they want me to be locked up 1 cara mcclellan is a skadden fellow at the naacp legal defense and educational fund. b.a. 2010, yale college; m.s.ed 2012, university of pennsylvania; j.d. 2015, yale law school. 2 columbia journal of race and law [vol. 8:1 then they want me to say something back or do something.”2 i. introduction: the trap ............................................. 2 ii. objective reasonableness under the totality of the circumstances ......................................................... 6 iii. evaluating police conduct in excessive force claims ..................................................................................... 9 a. courts that exclude all pre-seizure conduct ....... 9 b. courts that apply the segmented approach ..... 10 c. courts that consider pre-seizure conduct relevant when connected to the need to use force under traditional principles of causation ................................................................................................ 16 iv. the supreme court suggests that courts should apply tort principles of causation when considering pre-seizure conduct .................................. 23 v. the severity of the crime provides additional context for evaluating causation ................................ 25 vi. conclusion ................................................................ 30 i. introduction: the trap how does a conversation about a broken brake light escalate into a fatal shooting? on july 6, 2016, officer jeronimo yanez stopped philando castile on a busy street in falcon heights, minnesota. his girlfriend sat in the passenger seat and his daughter in the backseat. the traffic 2 this quotation comes from interviews completed in new haven, connecticut, in 2010 as part of an ethnographic study on how inner-city students view the police. cara mcclellan, teacher/police: how inner-city students perceive the connection between the education system and the criminal justice system, 8 yale j. soc. 53, 60 (2012). the young adults interviewed expressed a belief that the police profile youth of color as criminals, not as citizens who deserve protection. no. 1:1] dismantling the trap 3 stop was pretextual—officer yanez was not in fact motivated to stop castile because his brake light was broken, but because he believed castile matched the description of a robbery suspect based on his afrocentric features, specifically his “wide-set nose.”3 officer yanez requested that mr. castile provide his license and registration. before moving, mr. castile informed the officer that he possessed a firearm in the car that he was lawfully registered to carry.4 officer yanez then yelled “do not pull it out!” and castile responded that he would not. still when castile began to reach for his id and wallet as requested, officer yanez quickly fired seven shots killing castile. the frequent use of excessive force by police against civilians, particularly young, african american men and women, is one of the most significant problems our country faces.5 in the past several years, this issue has entered the public consciousness as a result of several widely publicized shootings and other uses of excessive force. 6 like many 3 mitch smith, video of police killing of philando castile is publicly released, n.y. times (june 20, 2017), https://www.nytimes.com/2017/06/20/us/police-shooting-castile-trialvideo.html. 4 stephen rex brown, philando castile had a permit for the gun he carried when minnesota cop shot him to death, n.y. daily news (july 9, 2016), http://www.nydailynews.com/news/national/philandocastileminnesotagun-permit-article-1.2705537. 5 according to the washington post, there were 963 civilians killed by police officers in 2016. john sullivan, et al., number of fatal shootings by police is nearly identical to last year, wash. post (july 1, 2017), https://www.washingtonpost.com/investigations/number-of-fatal-shootingsby-police-is-nearly-identical-to-last-year/2017/07/01/98726cc6-5b5f-11e79fc6-c7ef4bc58d13_story.html?utm_term=.7fda7ac5ef80. african american males represent nearly 1/4 of unarmed people killed by police, but only 6% of the population. id. police violence against african american women and african american transgender people is also a significant, but difficult to measure problem. see generally andrea j. ritchie, invisible no more police violence against black women and women of color (2017). 6 see roger a. fairfax, jr., the grand jury and police violence against black men, in policing the black man 209–234 (angela j. davis ed., 2017) (documenting a recent history of african american men killed by police); kimberlé williams crenshaw & andrea j. ritchie, say her name: resisting police brutality against black women (2015), 4 columbia journal of race and law [vol. 8:1 others, i have watched footage of these shootings, which repeatedly reveal officers responding aggressively with scant evidence of a threat to the officers’ safety. like many others, i have wondered: how did the situation escalate so quickly? there are, no doubt, multiple explanations, including implicit bias and stereotypes that lead officers to view african americans as threatening.7 my goal in this article is not to provide a comprehensive account of the problem or potential solutions, but merely to suggest a role that fourth amendment excessive force jurisprudence can play in deterring the use of police tactics that contribute to the need for officers to use force. interactions between police and young, african american men and women are often highly charged challenges to personal dignity and safety. 8 many young people experience these encounters as a sort of quandary (or as the quotation describes it, a “trap”), in which they must submit to unfair and aggressive treatment because they risk violence and criminal punishment.9 as in the quotation at the start, many african americans describe a feeling that officers behaved in a way that was disproportionate to what was https://perma.cc/4du5-7bqt (documenting a recent history of african american women killed by police). 7 see, e.g., kimberly barsamian kahn & paul g. davies, differentially dangerous? phenotypic racial stereotypicality increases implicit bias among ingroup and outgroup members, 14 group processes and intergroup relations 569 (2011) (finding that black targets with darker skin, broader noses, and fuller lips elicited stronger implicit bias in split-second “shoot/don’t shoot” situations than other targets. 8 see generally frank rudy cooper, who’s the man?: masculinities studies, terry stops, and police training, colum. j. of gender and l. 671 (2009), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1257183 (arguing that police use terry stops as an act of domination to validate their sense of esteem and masculinity). 9 my purpose in describing this experience is not to suggest that police stops which lack suspicion and serve to humiliate young men and women cause a harm that can be equated with police encounters that end in the use of lethal force, but rather that the two are connected when one considers how police encounters escalate to involve force that could have been prevented. no. 1:1] dismantling the trap 5 warranted in the situation and designed to provoke a response. department of justice investigations of police practices in ferguson and baltimore, which found systemic overreliance on excessive force against african american civilians,10 have highlighted the need to focus on deescalating police-civilian encounters in order to minimize the need to use force. the resulting consent decrees require police to undergo de-escalation training and employ new tactics that include slowing down the pace of an incident, waiting out subjects, creating distance between the officer and the threat, and requesting additional resources, such as behavioral healthcare providers, to reduce the need for force. 11 the fundamental insight of de-escalation research and training is that “tactics leading up to the use of force can influence whether the force used was necessary.”12 in stark contrast with this approach, this article will describe how the majority of federal courts continue to analyze police encounters without considering how the officer’s conduct may have impacted the need for force. part i outlines controlling law determining whether a police officer used excessive force, applying a totality of the circumstances test. part ii explains how federal courts of appeal apply the totality 10 the department of justice determined that the ferguson police department used excessive force discriminatorily against african americans. u.s. dep’t of justice civil rights div., investigation of the ferguson police department 28 (2015), http://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_report.pdf. 11 see, e.g., baltimore consent decree at 43, united states v. baltimore police dep’t., no. cv jkb-17-99, 2017 wl 1301500 (d. md. apr. 7, 2017) (ecf no. 2–2), https://www.justice.gov/opa/file/925056/download [hereinafter baltimore consent decree]. seven police forces across the country are piloting a de-escalation training program known as integrating communications, assessment and tactics developed by the police executive research forum and the department of justice’s office of community oriented policing services. see generally police executive research forum, integrating communications, assessment and tactics (2016), http://www.policeforum.org/assets/icattrainingguide.pdf. 12 consent decree at 51. 6 columbia journal of race and law [vol. 8:1 of the circumstances analysis differently, describing three approaches: (1) courts that do not consider any evidence of police conduct prior to the seizure; (2) courts that apply a segmented approach and consider earlier police misconduct separately from the seizure that constitutes the alleged excessive force; and (3) courts that apply tort principles of proximate causation to determine whether police conduct is directly connected to the use of excessive force. part iii describes the recent county of los angeles v. mendez decision in which the supreme court rejected the ninth circuit’s provocation doctrine, but left open the question of whether a totality of the circumstances analysis should consider earlier conduct that caused the need to use force.13 part iv argues that the severity of the crime provides essential context for determining causation and whether an officer took an overly aggressive tactic that foreseeably created a civilian response. the conclusion offers reflections on why in today’s world of pervasive criminal regulation and pretext policing it is essential that courts understand excessive force claims as an entire chain of events. it argues that if current excessive force jurisprudence does not change, the next generation of minority citizens will grow up feeling “trapped” by police conduct, undermining the legitimacy of our criminal justice system and american democracy. 14 ii. objective reasonableness under the totality of the circumstances a seizure occurs when police use force or assert authority in a way that causes a civilian to submit.15 the fourth amendment governs the ways in which officers are permitted to assert authority and use force in conducting an 13 cty. of los angeles v. mendez, 137 s. ct. 1539 (2017). 14 see benjamin justice & tracey l. meares, how the criminal justice system educates citizens, 651 annals am. acad. pol. & soc. sci. 159, 160 (2014) (discussing the different ways in which the criminal justice system educates african american youth and shapes their view of the legitimacy of the democracy). 15 california v. hodari d., 499 u.s. 621, 629 (1991). no. 1:1] dismantling the trap 7 investigatory stop or seizure under particular circumstances. 16 victims of excessive police force can sue police officers under 42 u.s.c. § 1983 17 and claim that an officer’s action violated the fourth amendment’s reasonableness standard. 18 although not the focus of this article, it is important to note that in order to overcome qualified immunity, the alleged violation must have been clearly established at the time the officer acted.19 in graham v. connor, 20 the supreme court established an objective reasonableness test to determine whether an officer’s use of force violated the fourth amendment, balancing “the nature and quality of the intrusion on the individual’s fourth amendment interests against the countervailing governmental interests at stake.”21 ultimately, the question is whether a reasonable officer would have believed that the use of force was necessary. the court in graham outlined three factors to consider: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”22 16 tennessee v. garner, 471 u.s. 1, 8–9 (1985) (the question to be decided is “whether the totality of the circumstances justifie[s] a particular sort of . . . seizure.”). 17 in pertinent part, 42 u.s.c. § 1983 provides as follows: every person who, under color of any statute, ordinance, regulation, custom or usage, of any state . . . subjects, or causes to be subjected, any citizen of the united states . . . to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law. 18 id. at 395. 19 anderson v. creighton, 483 u.s. 635, 639 (1987) (“whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action assessed in light of the legal rules that were ‘clearly established’ at the time it was taken”) (quoting harlow v. fitzgerald, 457 u.s. 800, 818–19 (1982)). 20 graham v. connor, 490 u.s. 386 (1989). 21 id. at 396 (quoting united states v. place, 462 u.s. 696, 703 (1983).) 22 id. 8 columbia journal of race and law [vol. 8:1 the totality of the circumstances analysis, the court explained, must be conducted from the officer’s perspective “at the moment” that the use of force occurred.23 “not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers . . . violates the fourth amendment.” 24 instead, the calculus of reasonableness must allow “for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”25 following graham v. connor, lower courts were left to interpret the relevant timeframe for evaluating an officer’s conduct under an excessive force claim.26 the approaches of the different federal courts of appeal can generally be divided into three groups. first, there are courts that hold that preseizure officer conduct is never relevant. second, some courts apply a segmented approach, considering allegations of police misconduct earlier in the encounter separately from the alleged seizure that constituted excessive force. third, some courts apply a test that considers how attenuated earlier police conduct is to the force employed in order to determine whether to admit evidence of pre-seizure conduct. 23 id. 24 id. at 396–97 (quoting johnson v. glick, 481 f.2d 1028, 1033 (2d cir. 1973)). 25 id. at 396. 26 see aaron kimber, righteous shooting, unreasonable seizure? the relevance of an officer’s pre-seizure conduct in an excessive force claim, 13 wm. & mary bill rts. j. 651, 654 (2004) (“the specific set of factors that fall within [the totality of the circumstances test] is not clear, and the circuits have split on whether pre-seizure police conduct leading up to the use of force is within its scope.”) (collecting cases); michael avery, unreasonable seizures of unreasonable people: defining the totality of circumstances relevant to assessing the police use of force against emotionally disturbed people, 34 colum. hum. rts. l. rev. 261, 265 (2003) (“while some circuits have held that officers’ actions leading up to a violent incident should be taken into account in assessing the reasonableness of the officers’ use of force, others have taken a narrower view, holding that police actions prior to a shooting are not relevant in assessing the reasonableness of the force used.”) (collecting cases). no. 1:1] dismantling the trap 9 importantly, all courts consider the civilian’s conduct as a factor in the analysis; the disagreement lies only as to whether it is appropriate to consider the officer’s pre-seizure conduct. iii. evaluating police conduct in excessive force claims a. courts that exclude all pre-seizure conduct the second, eighth and eleventh circuits have generally held that an officer’s pre-seizure conduct is not relevant under graham.27 these courts rely on language in graham stating that the analysis should consider what the officer knew at the moment the use of force occurred, since officers are forced to make “split-second judgments.”28 courts excluding pre-seizure conduct reason that reasonableness is determined based only on the information possessed by the officer at the moment that force is employed. for example, in schulz v. long, the eighth circuit held that a plaintiff’s evidence that an officer’s conduct prior to the moment of a seizure led to a need to use force must be excluded. 29 schulz involved a paranoid schizophrenic who barricaded himself in his parents’ basement. his parents called the police for help. the schulz court declined to consider whether the 27 see, e.g., salim v. proulx, 93 f.3d 86, 92 (2d cir. 1996) (“[the officer’s] actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force.”); cole v. bone, 993 f.2d 1328, 1333 (8th cir. 1993) (holding that the police chase of a fleeing tractor trailer was not relevant to the subsequent shooting of the civilian driver because courts should consider “only the seizure itself, and not the events leading up to the seizure, for reasonableness under the fourth amendment”); menuel v. city of atlanta, 25 f.3d 990, 997 (11th cir. 1994) (limiting review to the exact moment when the officer’s shooting began because “[r]econsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred” (quoting plakas v. drinski, 19 f.3d 1143, 1150 (7th cir. 1994))). 28 graham, 490 u.s. at 397. 29 schulz v. long, 44 f.3d 643, 647–48 (8th cir. 1995). 10 columbia journal of race and law [vol. 8:1 police mishandled the events leading up to the moment the officer shot schulz.30 the eighth circuit reasoned that the graham court’s use of the phrase “at the moment” in describing the reasonableness inquiry indicated that the reasonableness review extends only to those facts “known to the officer at the precise moment the officers effectuate the seizure.” 31 these facts included that the plaintiff was armed with a double-bladed axe. according to the schulz court, because the seizure was reasonable at the moment that it occurred, the facts leading up to the seizure were irrelevant. to hold otherwise would limit an officer’s ability to defend himself during a rapidly evolving and increasingly dangerous encounter. b. courts that apply the segmented approach the fourth, fifth, sixth and seventh circuits have generally reached the conclusion that “pre-seizure conduct is not subject to fourth amendment scrutiny.”32 in some cases, when faced with multiple claims of unreasonable police action, these courts attempt to divide prior events from those immediately preceding the use of force by splitting interactions into temporal segments and then analyzing the moments immediately before each violation separately. 33 this approach allows courts flexibility. as the sixth circuit described in greathouse v. couch:34 30 id. 31 id. at 648. 32 carter v. buscher, 973 f.2d 1328, 1332 (7th cir. 1992) (citations omitted). see also elliott v. leavitt, 99 f.3d 640, 643 (4th cir. 1996) (holding that the reasonableness of the officer’s actions in creating the dangerous situation is not relevant to the fourth amendment analysis); young v. city of killeen, 775 f.2d 1349 (5th cir. 1985) (finding that an officer may use lethal force when threatened even if he negligently failed to follow procedure and created the circumstances leading to the need for force). 33 livermore v. lubelan, 476 f.3d 397, 406–07 (6th cir. 2007) (“the proper approach . . . is to view excessive force claims in segments” and “disregard” events in earlier segments in analyzing subsequent claims of excessive force.) 34 greathouse v. couch, 433 f. app’x 370 (6th cir. 2011). no. 1:1] dismantling the trap 11 we apply a “segmented approach” to excessiveforce claims, in which we “carve up” the events surrounding the challenged police action and evaluate the reasonableness of the force by looking only at the moments immediately preceding the officer’s use of force . . . our segmented approach applies even to encounters lasting very short periods of time.35 in plakas v. drinski, the seventh circuit elaborated on the justification for the segmented approach, explaining that “[t]he time-frame is a crucial aspect of excessive force cases” because “[o]ther than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. . . . in this sense, the police officer always causes the trouble.”36 in boyd v. baeppler, officers received a radio call that an african american male had fired a shot, pointed a gun at three people outside of a wendy’s, and fled. 37 shortly after, the officers claimed they saw boyd, who met the description of the suspect, running with a gun in his hand.38 according to the officers, when they could not persuade boyd to stop, they shot and killed him.39 analyzing the officers’ use of force in segments, the majority of the panel found that only the facts surrounding the officers’ confrontation with boyd were relevant, including boyd’s failure to respond to demands that he stop running and officer testimony that boyd pointed a gun at the officers in the seconds before he was shot. 40 the majority excluded as irrelevant evidence of the circumstances leading up to the encounter, including evidence as to whether boyd was running from the officers in an attempt to escape, whether boyd had in fact fired the reported shot, and whether 35 id. at 372–73 (internal citations omitted). 36 plakas v. drinski, 19 f.3d 1143, 1150 (7th cir. 1994). 37 boyd v. baeppler, 215 f.3d 594, 597 (6th cir. 2000). 38 id. 39 id. 40 id. at 601. 12 columbia journal of race and law [vol. 8:1 boyd had committed any crime prior to being confronted by the police.41 the segmented approach does not lead to consistent rules, particularly because it is difficult to determine how to divide an encounter into temporal segments. the sixth circuit admitted in claybrook v. birchwe that the events in that case were not so easily divided. 42 the case involved undercover police officers shooting a civilian, claybrook, after approaching him in an unmarked car and, without identifying themselves, demanding that he drop his weapon. 43 claybrook’s estate alleged that the officers fired the first shot, causing claybrook to return fire.44 later, during a second exchange of fire, claybrook positioned himself behind concrete steps and pointed a gun at the officers.45 it was during this second exchange that claybrook was ultimately killed. the officers argued that events should be divided into two segments: the first beginning with the officers’ decision to confront claybrook through the initial firefight between the officers and claybrook, and the second beginning when claybrook hid behind the concrete steps and ending with the shots that killed him. from this perspective, evidence that the officers approached claybrook out of uniform, in an unmarked car, and opened fire on claybrook, would be excluded from the analysis of whether the use of lethal force was reasonable because only the second round of firing resulted in the officers’ lethal shooting of claybrook.46 the court rejected this approach, opting instead to divide the events into three segments: “first, the officers’ approach and 41 id. at 599–600. 42 claybrook v. birchwell, 274 f.3d 1098, 1103–05 (6th cir. 2001) (segmenting a 1-2 minute encounter and finding the earlier shots that did not hit the suspect should be used in analyzing whether the deadly force was reasonable, even though it excluded evidence of the officers’ actions leading up to the beginning of the shooting). 43 id. at 1104–05. 44 id. 45 id. at 1102 (quoting claybrook v. birchwell, 199 f.3d 350, 355 (6th cir. 2000)). 46 id. at 1104. no. 1:1] dismantling the trap 13 confrontation of claybrook; second, the initial firefight . . . ; and third, the shots fired after claybrook’s move to a position behind the concrete steps.”47 under these circumstances, the claybrook court concluded that the officers could not justify their use of lethal force as self-defense. the court explained that it reached this result because “plaintiffs brought suit to contest all use of deadly force . . . not only the shot that took his life.”48 thus, the court was willing to segment earlier police misconduct prior to shots being fired, but not after. in williams v. indiana state police dep’t, the seventh circuit admitted that its own application of case law was “far from clear as to the relevance of pre-seizure conduct, or even as to a determination as to what conduct falls within the designation ‘pre-seizure.’” 49 the court explained that although the majority of its cases held that pre-seizure conduct may not form the basis for a fourth amendment claim, that did not “mean that [] pre-seizure conduct is irrelevant to the fourth amendment claim. the sequence of events leading up to the seizure is relevant because the reasonableness of the seizure is evaluated in light of the totality of the circumstances.”50 the fourth circuit initially rejected segmenting, but later changed course. in rowland v. perry, the civilian, 47 id. at 1105. 48 id. 49 williams v. ind. state police dep’t, 797 f.3d 468, 482–83 (7th cir. 2015), cert. denied sub nom.; blanchard v. brown, 136 s. ct. 1712 (2016). compare marion v. city of corydon, indiana, 559 f.3d 700, 705 (7th cir. 2009) (“pre-seizure police conduct cannot serve as a basis for liability under the fourth amendment; we limit our analysis to, force used when a seizure occurs.”), and mccoy v. harrison, 341 f.3d 600, 605 (7th cir. 2003) (“even unreasonable, unjustified, or outrageous conduct by an officer is not prohibited by the fourth amendment if it does not involve a seizure.” (alteration omitted) (internal quotation marks omitted)) with sledd v. lindsay, 102 f.3d 282, 288 (7th cir. 1996) (observing that under seventh circuit law, if an officer conceals his identity as an officer, doctrine controlling the use of lethal force is modified because an officer “unreasonably create[s an] encounter that [leads] to a use of force” by “entering a private residence late at night with no indication of identity”). 50 williams, 797 f.3d at 483. 14 columbia journal of race and law [vol. 8:1 rowland, was a thirty-seven-year-old man who was mildly retarded.51 although the accounts of the officer, officer perry, and rowland differed, what was clear was that the officer believed that rowland had picked up a five dollar bill after he saw a woman drop it, the officer told rowland to return it, and, for whatever reason, rowland did not do so. the officer confronted rowland and a struggle began. at some point, officer perry twisted rowland’s leg, tearing his anterior cruciate ligament such that rowland later required surgery and was left partially disabled.52 officer perry argued that the excessive force claim should be analyzed in stages, or, in other words, through a segmented approach. 53 the court rejected perry’s proposed approach as “miss[ing] the forest for the trees.”54 “artificial divisions in the sequence of events do not aid a court’s evaluation of objective reasonableness.” 55 the court then applied the graham factors and concluded “it is impossible to escape the conclusion that a man suffered a serious leg injury over a lost five dollar bill.”56 in waterman v. batton,57 a divided panel of the fourth circuit adopted a different approach. the case involved an encounter in which police officers fired an initial round of gunfire at a motorist and then seconds later another round. the officers argued that the shots should not be analyzed in segments. the panel interpreted the controlling cases as failing to clearly establish whether events should not be reviewed outside the “context of the conduct that precipitated the seizure,”58 and whether a segmented analysis should be applied.59 the waterman court then looked at the officer’s use of lethal force, applying the segmented approach, and determined that while the early rounds of gunfire were 51 rowland v. perry, 41 f.3d 167, 171 (4th cir. 1994). 52 id. at 171–72. 53 id. at 173. 54 id. 55 id. 56 id. at 174. 57 waterman v. batton, 393 f.3d 471, 481 (4th cir. 2004) 58 id. at 480. 59 id. no. 1:1] dismantling the trap 15 justified, the later rounds were not, because the immediate threat to officer safety had been alleviated.60 as waterman reveals, courts that try divide an incident into segments are often concerned that the reasonableness analysis changes during prolonged encounters as circumstances change.61 this is true both in cases where officers are faced with a growing threat that justifies increasing use of force, and where the threat is alleviated and the justification decreases with time. yet while the strength of the segmented approach is the flexibility to adjust the analysis as circumstances change, the weakness of the segmented approach is that it can be easily manipulated to reach an intended result. indeed, courts seem to be segmenting events when necessary to avoid reaching a disturbing result, such as in claybrook where manipulating the divisions between segments could have resulted in the exclusion of evidence that undercover officers ambushed and began shooting at a civilian without warning.62 moreover, as the claybrook court recognized, segmenting can lead to inconsistent results. in short, a segmented approach does not provide a principle for courts to determine how preseizure circumstances are relevant to the eventual use of force. 60 id. at 482 (holding that the later round of gunfire was unconstitutional, but that the law at the time was not clearly established in order to defeat qualified immunity). 61 see dickerson v. mcclellan, 101 f.3d 1151, 1162 n.9 (6th cir. 1996) (observing that a different analysis may apply if it is determined that the officers’ initial decision to shoot was reasonable, but there was no justification for continuing to shoot); ellis v. wynalda, 999 f.2d 243, 247 (7th cir. 1993) (“when an officer faces a situation in which he could justifiably shoot, he does not retain the right to shoot at any time thereafter with impunity.”); hopkins v. andaya, 958 f.2d 881, 887 (9th cir. 1992) (dividing an encounter into two segments and holding that even if the use of deadly force was justified initially, “the exigency of the situation lessened dramatically” and the later use of lethal force was unreasonable). 62 claybrook, 274 f.3d at 1104. 16 columbia journal of race and law [vol. 8:1 as judge higginbotham excoriated in mason v. lafayette city-parish consolidated government, 63 appellate judges have yet to explain “from where [they] derive[] the authority to slice a single event and choose from the resulting parts of the appeal which to decide.”64 in mason, a fifth circuit panel was asked to consider an encounter in which a police officer fired multiple shots with decreasing justification. in his partial dissent, judge higginbotham wrote: “i am at sea as to why the majority slices a single event into distinct segments—seven shots into five and two—then performs the proper analysis with respect to one segment— the final two shots . . .”65 indeed, a segmenting approach could result in courts excluding evidence that the officer himself created the justification for his later use of force. this is because a test that focuses on dividing pre-seizure evidence based on temporal limitations is not suited to analyze a dynamic interaction between an officer and a civilian. as will be discussed in the next section, a causation analysis better provides the flexibility required to determine whether an officer’s pre-seizure conduct is sufficiently connected to the use of force to be relevant to the reasonableness determination. c. courts that consider pre-seizure conduct relevant when connected to the need to use force under traditional principles of causation the first, third, and tenth circuits have all held that a police officer’s actions prior to the use of force are relevant 63 mason v. lafayette city-par. consol. gov’t, 806 f.3d 268, 288 (5th cir. 2015) (higginbotham, j., dissenting in part) (“at some point, an officer crosses the line between setting up a risky situation and actually himself directly causing the ‘threat.’”). 64 id. at 285–86. 65 id. at 285. no. 1:1] dismantling the trap 17 in the reasonableness analysis. 66 these courts interpret graham’s “moment of” the seizure language as preventing the judge from applying a hindsight perspective, and not prohibiting the judge from considering an officer’s earlier conduct in the reasonableness analysis.67 this interpretation of graham makes sense when one considers that the opinion later explains: “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers . . . violates the fourth amendment.” 68 read in context, graham’s “at the moment” language prohibits judges from imposing their own perspective, and not from considering any pre-seizure police conduct. graham explicitly identifies the severity of the crime as one of the factors that courts must consider, and therefore requires courts to contextualize an interaction beyond the temporal period when the seizure happened. similarly, the pre-seizure conduct of a police officer is a noncontemporaneous factor that can provide context for interpreting the reasonableness of the seizure itself.69 this is 66 see, e.g., st. hilaire v. city of laconia, 71 f.3d 20, 26 (1st cir. 1995) (“court[s] should examine the actions of the government officials leading up to the seizure.”). 67 see, e.g., young v. city of providence ex rel. napolitano, 404 f.3d 4, 22 (1st cir. 2005) (explaining its approach “is most consistent with the supreme court’s mandate that we consider these cases in the ‘totality of the circumstances’” (quoting tennessee v. garner, 471 u.s. 1, at 8–9 (1985)); abraham v. raso, 183 f.3d 279, 291 (3d cir. 1999) (“we do not see how [an alternative approach] can reconcile the supreme court’s rule requiring examination of the “totality of the circumstances” with a rigid rule that excludes all context and causes prior to the moment the seizure is finally accomplished”); medina v. cram, 252 f.3d 1124, 1132 (10th cir. 2001) (“this approach is simply a specific application of the ‘totality of the circumstances’ approach inherent in the fourth amendment’s reasonableness standard.” (quoting garner, 471 u.s. at 8–9)). 68 graham, 490 u.s. at 396–97 (citations and internal quotation marks omitted). see bella v. chamberlin, 24 f.3d 1251, 1256 n.7 (10th cir. 1994) (“obviously, events immediately connected with the actual seizure are taken into account in determining whether the seizure is reasonable.”). 69 see deering v. reich, 183 f.3d 645, 650 (7th cir. 1999) (emphasizing that it is relevant that the arrest warrant the officers attempted to serve was for a misdemeanor charge). the deering court went on to explain that: “reasonableness depends on the information the officer 18 columbia journal of race and law [vol. 8:1 consistent with how courts generally review reasonableness under the fourth amendment by considering the prior conduct of the police officer. 70 courts excluding pre-seizure conduct treat the reasonable officer as if he or she has no memory that informs his or her perspective. 71 in abraham v. raso, after collecting cases from different circuits, the third circuit concluded that courts lack “any principled way of explaining when ‘pre-seizure’ events start and, consequently, will not have any defensible justification for why conduct prior to that chosen moment should be excluded.”72 the raso court explained that under the facts of the case before it, excluding evidence of the officer’s pre-seizure conduct would effectively mean that it would be asked to consider whether officer raso used excessive force in shooting a suspect, abraham, without considering the “circumstances before the moment abraham was actually struck by raso’s bullet.”73 the raso court provided several reasons for rejecting the doctrine that pre-seizure police conduct is irrelevant. first, such a “problematic justification” might be “understood as only excluding evidence that helps the plaintiff show the force was excessive” or “undermines the estate’s case.” 74 second, “there are considerable practical problems with trying to wrest from a complex series of events all and only the evidence that hurts the plaintiff.”75 finally, possesses prior to and at the immediate time of the shooting . . . . what [the deputy] knew about [the suspect] and the basis for the warrant would seem to fall within these parameters.” id. at 650. 70 see, e.g., kentucky v. king, 563 u.s. 452, 462 (2011) (holding that police can invoke exigent circumstances in order to conduct a warrantless search only “when the conduct of the police preceding the exigency is reasonable” and “the police did not create the exigency by engaging or threatening to engage in conduct that violates the fourth amendment”). 71 see, e.g., williams v. ind. state police dep’t, 797 f.3d 468, 483 (7th cir. 2015) (explaining that “the circumstances known by [the officer], or even created by him, inform the determination as to whether the lethal response was an objectively reasonable one”). 72 raso, 183 f.3d at 291–92. 73 id. at 291. 74 id. 75 id. no. 1:1] dismantling the trap 19 the court reasoned that the term “totality” as used in graham “implies that reasonableness should be sensitive to all of the factors bearing on the officer’s use of force.”76 instead, the raso court concluded that whether an officer’s pre-seizure conduct should be considered as part of the totality of the circumstances analysis should be determined by applying traditional principles of causation: “what makes these prior events of . . . consequence [or not] are ordinary ideas of causation, not doctrine about when the seizure occurred.”77 similarly, the tenth circuit has held that “[t]he reasonableness of the use of force depends not only on whether the officers were in danger at the precise moment that they used force, but also on whether the officers’ own ‘reckless or deliberate conduct during the seizure unreasonably created the need to use such force.’” 78 the tenth circuit thus “consider[s] an officer’s conduct prior to the suspect’s threat of force if the conduct is ‘immediately connected’ to the suspect’s threat of force.”79 this is consistent with how courts have historically understood other kinds of § 1983 claims outside of the excessive force context.80 section 1983 imposes liability on a government official who “subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights.”81 “mere negligent actions precipitating a confrontation would not, of course, be actionable under § 1983,”82 which does not cover officers’ ‘non-tortious conduct,’ such as the use of reasonable 76 id. 77 id. at 292. 78 jiron v. city of lakewood, 392 f.3d 410, 415 (10th cir. 2004) (quoting sevier v. city of lawrence, kan., 60 f.3d 695, 699 (10th cir. 1995)). 79 allen v. muskogee, 119 f.3d 837, 840 (10th cir. 1997) (quoting romero v. bd. of cty. comm’rs of cty. of lake, 60 f.3d 702, 705 n.5 (10th cir. 1995). 80 see memphis cmty. sch. dist. v. stachura, 477 u.s. 299, 307 (1986) (“[t]he basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights . . . .”). 81 42 u.s.c. § 1983 (emphasis added). 82 sevier, 60 f.3d at 699 n.7. 20 columbia journal of race and law [vol. 8:1 force.”83 but the “requisite causal connection is satisfied if the defendant[s] set in motion a series of events that the defendant[s] knew or reasonably should have known would cause others to deprive the plaintiff of his constitutional rights.’”84 that is not to say that determining how attenuated the connection is between an officer’s conduct and an officer’s use of force will always be straightforward, but there are well established principles to guide this analysis. first, a plaintiff asserting a constitutional tort under § 1983 must establish proximate causation.85 proximate causation requires a direct relationship between the challenged conduct and the injury such that the injury was foreseeable,86 which is“ intended to say that the scope of the defendant’s liability is determined by the scope of the risk he [tortiously] created.”87 second, a cause is not a proximate cause if an intervening force occurred that foreseeably led to the harm at issue.88 “[d]etermining whether a particular intervening force is or is not a superseding cause of the harm is in reality a problem of determining whether the intervention of the force was within the scope of the reasons imposing the duty upon the actor to refrain from [the prohibited] conduct.”89 applying these principles to excessive force claims, officers are not liable for harm produced by a superseding cause. 90 for example, as the third circuit 83 bodine v. warwick, 72 f.3d 393, 400 (3d cir. 1995). 84 snell v. tunnell, 920 f.2d 673, 700 (10th cir. 1990) (quoting conner v. reinhard, 847 f.2d 384, 397 (7th cir.1988)).. 85 see, e.g., murray v. earle, 405 f.3d 278, 290 (5th cir. 2005) (“section 1983 . . . require[s] a showing of proximate causation, which is evaluated under the common law standard.”). 86 a harm is not “foreseeable” simply because it is conceivable; rather, it must be “the natural and probable consequence.” milwaukee & st. paul ry. co. v. kellogg, 94 u.s. 469, 475–76 (1876). 87 d. dobbs et al., the law of torts § 205 (2d ed. 2016). 88 see staub v. proctor hosp., 562 u.s. 411, 420 (2011) (“a cause can be thought ‘superseding’ only if it is a ‘cause of independent origin that was not foreseeable.’”) (internal quotation marks and citation omitted). 89 restatement (second) of torts § 281 cmt. h (am. law inst. 2017). 90 bodine, 72 f.3d at 400 (citing george v. city of long beach, 973 f.2d 706 (9th cir. 1992)). no. 1:1] dismantling the trap 21 observed in bodine, if officers improperly entered without knocking and announcing their presence, but once inside, identify themselves, and are attacked by the suspect, an officer would not still be liable for any harm caused to the suspect based on the theory that the illegal entry rendered any subsequent use of force unlawful.91 in short, the question is whether the conduct is “immediately connected” to the suspect’s threat of force.92 on the other hand, a civilian may resist tortious police conduct without creating a superseding cause to the excessive force precipitated by the officer’s actions, unless this resistance goes beyond mere self-defense and creates a threat to the officer that was not a foreseeable response.93 in pauly v. white, the tenth circuit was asked to determine whether the actions of several officers were the but-for cause of samuel pauly’s death, where the officers approached pauly’s residence at night in the rain when he and his brother were in their home and, without knocking or announcing themselves as police, made threatening comments about intruding into the home to attack the brothers. 94 on appeal, a panel of the tenth circuit considered whether pauly’s act of pointing a gun at the officers was an intervening act or within the scope of the original risk the officers assumed by entering pauly’s home at night in a threatening manner.95 the court concluded that because the officers could have predicted that the two civilians inside the residence would open fire in response, 93 brief for the petitioner at 55, cty. of los angeles v. mendez, 137 s. ct. 1539 (2017) 2017 wl 696103 (arguing that tortious or criminal reaction to police constitutes a superseding cause). 94 pauly v. white, 814 f.3d 1060, 1066, 1070 (10th cir. 2016), cert. granted, judgment vacated on other grounds, 137 s. ct. 548 (2017). see 137 s. ct. at 552 (explaining that the panel majority applied the “clearly established” standard at too high a level of abstraction when it conducted the qualified immunity analysis). 95 id. at 1073. 22 columbia journal of race and law [vol. 8:1 pauly’s actions did not constitute a superseding cause to the officers’ use of force.96 in summary, the relevance of an officer’s pre-seizure conduct should be determined based on how closely the conduct relates to the force at issue, and whether there was a superseding cause under traditional jurisprudential principles of proximate cause.97 most courts have recognized the limited principle that an officer cannot rely on a civilian’s attempt to comply with an order or a civilian’s immediate reaction to police force as justification for the use of additional force. 98 the logical extension of this reasoning is that officers should be liable for excessive force when their conduct causes the justification for the force.99 while courts that apply the segmented approach struggle to analyze the relationship 96 id. at 1090. 97 brief for petitioner at 42–56, cty. of los angeles v. mendez, 2017 wl 696103. 98 see, e.g., kirby v. duva, 530 f.3d 475, 482 (6th cir. 2008) (observing in a case where a police officer moved towards a moving vehicle that “[w]here a police officer unreasonably places himself in harm’s way, his use of deadly force may be deemed excessive”); sample v. bailey, 409 f.3d 689, 697 (6th cir. 2005) (holding that an officer could not order a suspect to get out of his hiding place and then rely on the suspect’s movement to justify the use of lethal force); ribbey v. cox, 222 f.3d 1040, 1042 (8th cir. 2000) (holding that an officer could not unreasonably break a car window and then rely upon the suspect’s “reflex[ive] [movement] to protect himself from the breaking glass” to justify the use of lethal force); estate of starks v. enyart, 5 f.3d 230, 234 (7th cir. 1993) (holding that a police officer cannot jump in front of a suspect’s car and then rely upon the danger of the oncoming car as justification for the use of deadly force); kopf v. wing, 942 f.2d 265, 268 (4th cir. 1991) (finding that an officer could not deploy an attack dog and then rely upon the suspect’s inability to put his hands up as the dog attacked him to justify a subsequent use of force); gilmere v. city of atlanta, ga., 774 f.2d 1495, 1502 (11th cir. 1985) (holding that a shooting directly resulting from decedent’s efforts to escape officers’ unwarranted physical abuse “g[a]ve grounds for relief under the fourth amendment”). 99 chiraag bains, can cops use force with impunity when they’ve created an unsafe situation? sla t e (june 15, 2017, 7:00 am), www.slate.com/articles/news_and_politics/jurisprudence/2017/06/the_supr eme_court_suggests_cops_use_of_force_is_always_justified.html (“police officers should not be allowed to create dangerous situations that leave them with no choice but to use deadly force. instead, our system should discourage such reckless conduct by making officers liable when they do.”). no. 1:1] dismantling the trap 23 between a series of events, principles of proximate causation provide workable rules for interpreting how to impose liability when a series of events interact to produce a result. as the next section describes, the causation approach is not only the most workable, but the most promising under recent supreme court case law. iv. the supreme court suggests that courts should apply tort principles of causation when considering pre-seizure conduct in county of los angeles v. mendez, the supreme court was asked to review the question of how courts may consider pre-seizure conduct in a case challenging the ninth circuit’s provocation rule.100 the ninth circuit’s approach permitted more limited evidence of pre-seizure officer conduct than the first, third and tenth circuits. under what it termed the “provocation doctrine”, the ninth circuit held that “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent fourth amendment violation, he may be held liable for his otherwise defensive use of deadly force.” 101 thus, if a plaintiff can establish unconstitutional conduct, the officer is liable for proximately caused harm, regardless of whether the force might have otherwise been reasonable. 102 mendez involved two deputies, christopher conley and jennifer pederson, who entered a shack that belonged to the mendezes announcing their presence. 103 the deputies were in search of an armed and dangerous parolee who was not there when they arrived. 104 upon entering, the deputies thought they saw mr. em, although it turned out what 100 cty. of los angeles v. mendez, 137 s. ct. 1539 (2017). 101 billington v. smith, 292 f.3d 1177, 1189 (9th cir. 2002), abrogated by mendez, 137 s. ct. 1539. 102 smith at 1189–90 (emphasis added). 103 mendez, 137 s. ct. at 1544. 104 id. 24 columbia journal of race and law [vol. 8:1 mr. mendez actually possessed was a bb gun used to kill rodents in the home. 105 the deputies shot and seriously injured both mendezes—mrs. mendez was shot in the back, and mr. mendez required amputation of his right leg below the knee.106 the mendezes sued the deputies and the county of los angeles under § 1983, asserting three distinct fourth amendment claims: warrantless entry, failure to knock-andannounce, and excessive force. writing for the court, justice alito framed the issue as: if law enforcement officers make a “seizure” of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate fourth amendment violation that contributed to their need to use force?107 according to the court, the ninth circuit’s provocation rule conflated distinct fourth amendment claims that should be analyzed independently by asking courts to “look back in time to see if there was a different fourth amendment violation that is somehow tied to the eventual use of force.”108 the court held that the fourth amendment provides no basis for the ninth circuit’s approach. 109 rather, it found that graham’s totality of the circumstances analysis is the only controlling test.110 in a footnote, the court further explained that it had not granted certiorari on, and thus declined to address, the question of whether a totality of the circumstances analysis under graham “means taking into account unreasonable 105 id. at 1545. 106 id. 107 id. at 1543. 108 id. at 1547. 109 cty. of los angeles v. mendez, 137 s. ct. 1539, 1544 (2017). 110 id. at 1547. no. 1:1] dismantling the trap 25 police conduct prior to the use of force that foreseeably created the need to use it.”111 the court indicated that the correct question to focus on was whether the excessive force at issue was a direct result of the deputies’ earlier fourth amendment violations “under basic notions of proximate cause,” 112 or whether mr. mendez pointing a gun was a superseding cause that made the deputy’s decision to shoot reasonable. after mendez, we know that an officer’s otherwise reasonable use of force is not as a matter of law unreasonable, simply because “(1) the officer intentionally or recklessly provoked a violent response, and (2) that provocation is an independent constitutional violation.”113 in other words, “a different fourth amendment violation cannot transform reasonable use of force into an unreasonable seizure.”114 but the question remains whether a totality of the circumstances analysis can take into account police conduct prior to the use of force that caused the need to use the excessive force at issue. the court indicated that on remand the ninth circuit should consider whether there was direct causation between the prior act and the need to use force,115 suggesting that the court would be likely to accept an approach that considers causation like that of the first, third or tenth circuit. v. the severity of the crime provides additional context for evaluating causation the supreme court decided graham before the dramatic expansion of terry’s progeny, particularly in case law governing pretextual and consent searches. under present case law, an officer may ask for “consent” to search a civilian’s belongings without informing the civilian that he or 111 id. at 1547 n.*. 112 id. at 1548. 113 id. at 1546. 114 id. at 1544. 115 cty. of los angeles v. mendez, 137 s. ct. 1539, 1549 (2017) (citing brief of petitioner at 31–32, cty. of los angeles v. mendez, 137 s. ct. 1539 (2017) (no. 16-369), 2017 wl 696103). 26 columbia journal of race and law [vol. 8:1 she can decline.116 moreover, police have greater authority to stop civilians for minor, nonthreatening legal violations,117 or even a pretextual justification.118 as michelle alexander has argued, there was a sharp turn in the supreme court’s fourth amendment jurisprudence during the war on drugs so that “it is no longer necessary for the police to have any reason to believe that people are engaged in criminal activity or actually dangerous to stop and search them.” 119 and as justice sotomayor described in utah v. strieff, the reality is that today a police stop may be “suspicionless” or “one in which the officer initiated [a] chain of events without justification.”120 as professor devon carbado explains, “an ordinary traffic stop can be a gateway to extraordinary police violence” and “fourth amendment law help[s] to stage” the “ordinary police interaction whose life-and-death boundaries fourth amendment law helps to produce.” 121 terry is the basis for an officer to initiate the chain of events that for some may end in lethal force. with increased authority to stop and seize comes new opportunities for police officers to both assert power and use force. one might question how the increased authority of officers to initiate encounters impacts courts’ analysis of the events that follow. civilians are generally expected to 116 see florida v. bostick, 501 u.s. 429, 438 (1991). 117 devenpeck v. alford, 543 u.s. 146, 154–55 (2004); heien v. north carolina, 135 s. ct. 530 (2014). 118 see whren v. united states, 517 u.s. 806 (1996) (holding that when police officers have probable cause to stop vehicles for traffic infractions, a pretextual reason for conducting the stop is irrelevant). 119 michelle alexander, the new jim crow 64 (2010). see james forman jr., locking up our own 194–201 (2017) (describing the increased use of pre-text stops in washington, dc’s black neighborhoods under eric h. holder); united states v. hill, 852 f.3d 377, 385 (4th cir. 2017) (davis, j., dissenting) (“[t]the ill-fated ‘war on drugs’ has a sometimes overlooked and unmentioned casualty: the fourth amendment.”). 120 utah v. strieff, 136 s. ct. 2056, 2070–71 (2016) (sotomayor, j., dissenting). 121 see devon w. carbado, from stopping black people to killing black people: the fourth amendment pathways to police violence, 105 cal. l. rev. 125, 150, 164 (2017). no. 1:1] dismantling the trap 27 acquiesce when the police assert authority or exert physical force in order to enforce a lawful action. the right to make an investigatory stop, arrest, or other seizure encompasses the right to use some degree of physical force or other demonstration of power to effect it.122 but when the basis of this authority is a minor traffic violation, the latitude courts typically extend to law enforcement officers to use force in order to neutralize potentially dangerous suspects is undermined because there is no reason to assume that the suspect is dangerous. the fact that castille’s deadly encounter with officer yanez began over a broken brake light outraged many because it seemed to violate fourth amendment values, which balance the nature and quality of the intrusion with the countervailing governmental interests at stake; while a violent fleeing felon has forfeited the right to a less intrusive seizure, a driver with a broken brake light has not. the conduct that precipitated the seizure matters, not just as context for understanding the seizure as an isolated segment, but as context for understanding the entire chain of events. the case estate of starks v. enyart123 also illustrates this point. the seventh circuit panel reviewing the use of lethal force found it relevant to the analysis that the officers knew “that the underlying crime was not accomplished violently.” 124 the court observed: “if a fleeing felon is converted to a ‘threatening’ fleeing felon solely based on the actions of a police officer,” basic fourth amendment tenets would become meaningless.125 the severity of the crime at issue must inform the causation analysis. first, the severity of the crime is critical in the evaluation of aggression. while a more aggressive tactic may be warranted initially when the police are chasing a murder suspect, there is no justification for undertaking an 122 see terry v. ohio, 392 u.s. 1, 22–27 (1968). 123 estate of starks v. enyart, 5 f.3d 230 (1993). 124 id. at 233. 125 id. at 234. 28 columbia journal of race and law [vol. 8:1 aggressive approach initially when an individual is merely suspected of a minor traffic violation. the crime at issue also matters in understanding the civilian’s response to the officer’s conduct because of the civilian’s interest in remaining free from state-sponsored violence. courts must evaluate how civilians will predictably respond to aggressive police tactics considering that the civilian was not suspected of dangerous or threatening conduct. aggressive displays of power under these circumstances are almost always experienced as disproportionate and threatening. thus, understanding whether an officer predictably created legitimate resistance by employing an overly aggressive tactic requires consideration of the crime at issue from the officer’s perspective. the reality that traffic or other minor violations can provide legal sanction for police to initiate severe intrusions feeds the feeling that any slight violation could provide the basis for a police officer to enact discrimination based upon race under the guise of legitimate punishment. 126 as described in the quote at the outset, some african americans may comply with police authority not because they view it as legitimate, but because they feel unfairly “trapped” by officers who rely on increased authority to initiate encounters, and then seek to provoke a reaction that may provide a basis for punishment. this feeling of being trapped is not merely imagined; as this article has described, some courts continue to conduct a totality of the circumstances analysis in excessive force cases without even considering how conduct of officers may have contributed to the justification for the officer’s need to use force, much less holding officers accountable. of course, there is a risk that causation will be more clearly understood with the benefit of hindsight and courts ought not impose rules that “undercut the necessary element 126 for an account of how overreliance on aggressive assertions of authority “inevitably engenders individual-level and community-wide pushback and resistance that can escalate into violence,” see devon w. carbado, blue-on-black violence: a provisional model of some of the causes, 104 geo. l.j. 1479 (2016). no. 1:1] dismantling the trap 29 of judgment inherent in a constable’s attempts to control a volatile chain of events.”127 but a causation analysis simply imposes a duty on officers to anticipate the reasonable results of their actions, and need not hamper their ability to do their jobs. the fourth circuit case, estate of armstrong ex rel. armstrong v. village of pinehurst128 provides a good example of this.129 the civilian in that case, armstrong, suffered from bipolar disorder and schizophrenia. police were called to enforce an involuntary commitment order compelling him to be hospitalized after his doctor identified him as a danger to himself.130 when police ordered armstrong to return to the hospital, armstrong wrapped his body around a stop sign and refused to comply.131 in response, the police officers tased him five times.132 when he continued to resist, they removed him by force, cuffed, and shackled him.133 during the course of the struggle, armstrong died.134 in finding that the use of force was unreasonable, a panel of the fourth circuit wrote: “tasing armstrong did not force him to succumb to [the] seizure—he actually increased his resistance in response . . . had appellees limited themselves to permissible uses of force when seizing armstrong, they would have had every tool needed to control and resolve the situation at their disposal.”135 thus, under the court’s analysis, the officers’ decision to tase armstrong was not only unjustified—his noncompliance did not warrant this level of force given that he did not present a threat to officer safety—but also ineffective, as their use of force actually increased his resistance and escalated the situation.136 127 brown v. gilmore, 278 f.3d 362, 369 (4th cir. 2002). 128 estate of armstrong ex rel. armstrong v. village of pinehurst, 810 f.3d 892, 896 (4th cir.), cert. denied sub nom. vill. of pinehurst, n.c. v. estate of armstrong, 137 s. ct. 61 (2016). 129 id. 130 id. 131 id. 132 id. at 897. 133 id. 134 id. at 898. 135 id. at 906. 136 id. 30 columbia journal of race and law [vol. 8:1 viewing excessive force claims as a chain of events is essential to untangling “the trap” by creating accountability for police conduct that escalates an interaction. by incorporating principles of causation, excessive force claims have the potential to provide an important deterrent to police officers’ abuse of the increased power and discretion that terry’s progeny provide. while fourth amendment law generally may be moving in the direction of permitting increased intrusions for minor crimes,137 excessive force case law can provide an increasingly important check on this trend by limiting how aggressive police conduct can justify police force later in the encounter. considering excessive force claims in terms of the chain of events is essential to ensuring that the totality of the circumstances analysis reaches a result that is in line with long-established and fundamental fourth amendment principles. vi. conclusion in the wake of repeated police shootings of young, unarmed, black men and women, police departments across the country are focusing on de-escalation.138 in contrast with 137 see atwater v. city of lago vista, 532 u.s. 318, 339–40, 345, 354 (2001) (explaining why custodial arrests even for very minor criminal offenses do not violate the fourth amendment). 138 international association of chiefs of police, national consensus policy on use of force 3 (jan. 2017), http://www.theiacp.org/portals/0/documents/pdfs/ national_consensus_policy_on_use_of_force.pdf (recommending training on de-escalation and proscribing that officers “shall use de-escalation techniques and other alternatives to higher levels of force . . . whenever possible and appropriate before resorting to force and to reduce the need for force”). see also tom jackman, de-escalation training to reduce police shootings facing mixed reviews at launch, wash. post (oct. 15, 2016), https://www.washingtonpost.com/local/public-safety/deescalation-training-to-reduce-police-shootings-facing-mixed-reviews-atlaunch/2016/10/14/d6d96c74-9159-11e6-9c85 ac42097b8cc0_story.html?utm_term=.1922bc753fe2. (“[i]n about 40 percent of [lethal police shooting] cases, the subject does not have a gun, and many police officials think that reducing the intensity of such encounters, establishing more distance between officer and subject, and simply talking to the person can result in no shots being fired and less trauma on all no. 1:1] dismantling the trap 31 this approach, federal courts often continue to analyze fourth amendment excessive force cases from the moment force is employed without considering how police conduct earlier in an encounter may have contributed to the need for subsequent force. moreover, judges often assume that force serves the interest of officer safety and civilian compliance, rather than exacerbating a situation under some circumstances and increasing risks. the assumptions that guide judicial analysis are therefore fundamentally out of touch with standard policies and best practices in policing, which should instead inform the analysis that courts apply.139 this article has argued that an officer should not be permitted to use force when the officer predictably created the need for force by employing an overly aggressive tactic. existing legal principles for understanding causation can be applied in excessive force cases to determine whether the officer created the circumstances justifying the need to use force and whether the actions of the civilian constituted a superseding cause. the severity of the crime provides key context for this causation analysis. while a civilian’s failure to comply generally authorizes an officer to use additional force, an exception should occur when it can be said that the officer’s approach predictably caused the civilian to resist. this limitation would prevent officers from manufacturing authority to use force by employing overly aggressive tactics or other misconduct that is likely to provoke civilian resistance. as the justification for asserting authority weakens, so does the line between legal police force and illegal state-sponsored violence. thus, the sides.”); timothy williams, long taught to use force, police warily learn to de-escalate, n.y. times (june 27, 2015), https://www.nytimes.com/2015/06/28/us/long-taught-to-use-force-policewarily-learn-to-de-escalate.html. 139 see, e.g., ludwig v. anderson, 54 f.3d 465, 472 (8th cir. 1995) (finding that the police department’s policy was relevant to the reasonableness analysis). see also wilson v. meeks, 52 f.3d 1547, 1554 (10th cir. 1995) (violations of police regulation do not alone give rise to a section 1983 claim). 32 columbia journal of race and law [vol. 8:1 implications of making tort-based causation distinctions are important for ensuring that the next generation of citizens views the criminal justice system as legitimate, instead of a trap. police departments are beginning to recognize the importance of how an officer’s behavior influences the need to use force later on, and while this is an important step in the right direction, the change required is not just a question of policing. courts must play an essential interpretative role in addressing this justice concern as well. microsoft word jallad final.docx 2016 columbia journal of race and law 139 the power of the body: analyzing the logic of law and social change in the arab spring zeina jallad* under conditions of extreme social and political injustice—when human rights are most threatened—rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. when those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian actors may resort to non-traditional tactics of resistance. one example of these radical modes is the use of the corporeal body as a means of protest. the use of the human body to make political argument may catalyze legal, social, and cultural change where rational arguments fail. this article examines the power of the human body in spurring political and legal action. it analyzes the 2010 self-immolation of tarek mohammad bouazizi in tunisia, which sparked an unprecedented wave of protests across arab countries, leading to what came to be known as the “arab spring.” it suggests that when human rights-based arguments are exhausted, space is created for alternative strategies of resistance. mobilized and deployed as tools of resistance, human bodies become the argument. i. introduction ................................................................................................................ 140 ii. the futility of human rights law–based rational arguments ... 141 a. international human rights law ..................................................... 141 b. instrumental value of international treaties .................................. 142 c. when the language of rights runs dry ....................................... 145 iii. when the body yields: self-immolation as an alternative form of dissent ........................................................................................................................ 152 a. tarek mohammad bouazizi ............................................................. 152 b. analyzing the corporeal logic of the oppressed body ............... 154 iv. understanding when bodies-in-pain become the argument ........ 157 a. the difficulty of communicating and understanding injustice ... 157 b. the linkage between expressing and diminishing injustice ....... 160 c. the linkage between pain and power ............................................ 162 v. the return to the law ........................................................................................... 164 a. the dialectic of the body-in-pain ................................................. 164 b. the dialectic of the body-in-pain and a virtuous body in law . 165 vi. conclusion ..................................................................................................................... 167 140 the power of the body vol. 6:2 i. introduction when life itself is negated in the struggle to challenge sovereignty, the power over life and death that the sovereign exercises becomes useless. the absolute weapons against bodies are neutralized by the voluntary and absolute negation of the body. –hardt and negri this article examines the power of the human body in spurring political and legal action when the appeal to human rights reaches its limits. this article analyzes the 2010 self-immolation of tarek mohammad bouazizi in tunisia, which sparked an unprecedented wave of protests across arab countries, leading to what came to be known as the “arab spring.” in light of the limitations of—or, perhaps, the complete absence of—other strategies to effectively challenge injustice, this article uses bouazizi as a case study to explore why and how otherwise invisible and oppressed “bodies-in-pain” are able to mobilize social, political, and legal change. this article then proposes that prior to 2011, in contexts such as tunisia, human rights–based legal norms had little persuasive or transformative power. instead, the deployment of the human body proved to be more effective in igniting socio-political change than rational arguments based in law. although bouazizi’s act occurred outside of any organized social movement, it cannot be understood in isolation from the social context. bouazizi’s self-immolation constituted an act of defiance that succeeded in sparking social change because it amplified a pre-existing dynamic of broader social frustration and rendered it material, visible, and visceral. what bouazizi’s self-immolation makes clear is that the corporeal form, rather than law, can constitute an argument powerful enough to topple a tyrannical regime.1 the first section of this article focuses on the limits of rational human rights–based legal norms in combating injustice. it argues that human rights law proves no match for certain conditions of authoritarianism. under such circumstances, the law is an ineffective tool to protect fundamental rights and can even become a means of licensing injustice. the second section analyzes the self-immolation of tarek mohammad bouazizi in tunisia, contending that when human rights–based arguments are exhausted, space is created for alternative forms of dissent. mobilized and deployed as a tool of resistance, the human body itself becomes the argument for overdue political change. much has been written about the use of self-immolation as a form of political protest; this section offers an original account of the political body as a body-in-pain, where the performance of pain becomes a catalyst of socio-political change. in the third section, this article offers an understanding of the body when it is positioned as the argument. the section explores the difficulty of communicating, expressing, and understanding pain. when pain cannot be denied or confined, the body expresses its own desperation and frustration, as well * zeina jallad, lawyer, lecturer in law, j.s.d. candidate, columbia university school of law; ll.m., columbia university school of law; ll.b., the university of jordan. sincere thanks and appreciation go to my mentor and immediate supervisor, katherine franke, the isidor and seville sulzbacher professor of law and director of the center for gender and sexuality law. professor franke continuously supported me throughout this research project and provided me with helpful feedback and comments. special thanks go to kendall thomas, nash professor of law and director of the center for the study of law and culture and mark barenberg, isidor and seville sulzbacher professor of law and co-director of the program of labor law and policy; their ongoing support and encouragement are very much appreciated. 1 see rashid khalidi, reflections on the revolutions in tunisia and egypt, foreign pol’y mag., feb. 24, 2011, http://foreignpolicy.com/2011/02/24/reflections-on-the-revolutions-in-tunisia-and-egypt/ (describing the revolution in tunisia as “a moment of new possibilities in the arab world, and indeed in the entire middle east [as two] of the most formidable [regimes] among them—in tunis and cairo—[. . .] crumbled”). 2016 columbia journal of race and law 141 as that of others who have been rendered speechless. through the powerful public spectacle of the body-inpain, the very act of self-immolation transforms an individual corporeal act into a mass movement. the final section explores how by returning to the law, the oppressed population challenges the impotence of rational argument, reshapes the geographies of marginalization, establishes a break with the past, and negotiates a new pact with the state. through an analysis of the preamble of the post-revolution tunisian constitution, this article illustrates how the body-in-pain under certain conditions of subjugation and disenfranchisement can successfully convert the perception of bodily self-destruction from an individual act of frustration and defiance to an act of mass mobilization that possesses socially transformative power. this article suggests that in the case of tunisia, the very body-in-pain that revealed the limits of rational rights-based arguments succeeded through a dialectical process in transforming the legal corpus. ii. the futility of human rights law–based rational arguments a. international human rights law the principles of international human rights law emerged in the aftermath of world war ii (wwii). the universal declaration of human rights (“udhr”) of 19482 affirmed the inherent rights enjoyed by all people: everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.3 by signing the udhr, world leaders aimed to put an end to atrocities such as those committed in wwii. along with the addition of the international covenant on civil and political rights (“iccpr”)4 and the international covenant on economic, social and cultural rights (“icescr”)5 in 1966, the international bill of human rights6 detailed a conception of universal and inalienable human rights which have binding legal effects on all states.7 the covenants set forth the entitlement of all mankind to interdependent and indivisible civil, political, economic, social, and cultural rights. 8 over the course of time, this consensus and commitment to universal rights—in the form of treaties, customary international law, general principles, regional agreements, declarations, and domestic law—has become the body of international human rights 2 universal declaration of human rights, g.a. res. 217a(iii), 3 u.n. gaor, u.n. doc. a/810 (dec. 10, 1948) [hereinafter udhr]. 3 id. at 2. 4 international covenant on civil and political rights, dec. 16, 1966, 999 u.n.t.s. 171. 5 international covenant on economic, social and cultural rights, dec. 16, 1966, 993 u.n.t.s. 3. (entered into force jan. 3, 1976). 6 the international bill of human rights is composed of the udhr 1948, the iccpr 1966 and its two optional protocols, and the icescr 1966. see infra note 7. 7 international human rights law, office of the high comm’r for human rights, http://www.ohchr.org/en/professionalinterest/pages/internationallaw.aspx (last visited nov. 23, 2015). 8 g.a. res. 421(v), subsec. (e), u.n. gaor, 5th sess., supp. no. 20 (dec. 4, 1950). 142 the power of the body vol. 6:2 law.9 states have demonstrated their commitment to this body of law by ratifying international treaties, signaling their subscription and intent to adhere to this conception of international law and all it entails. in principle, by ratifying the international bill of human rights, governments assume various obligations and duties. they pledge to meet the minimum requirements of the universally agreed to human rights principles and to perform their obligations as part of their tacit social contract with their population to the best of their abilities. state governments commit to proactively engage in or refrain from specific acts, with the ultimate goal of promoting, fulfilling, and protecting universally recognized human rights.10 through ratifications, governments pledge to adopt the necessary measures, including implementing legislation, to ensure that their treaty obligations are met. they are entrusted with ensuring the compatibility of their domestic laws and policies with the international treaties, aimed at protecting and advancing the status of human rights in their countries.11 in addition to lawmaking, governments are supposed to take certain measures and deploy mechanisms to cement their obligations, preserve order, and enhance societal cohesion. states have the duty to put in place all measures to exercise their powers “of conferring a name on [their] people and a meaning on their social action.”12 human rights defenders and those entrusted with promoting the language of rights systematically refer to these internationally recognized human rights standards as part of the world’s basic customs.13 they generally use human rights-based law arguments as universally recognized tools to uphold fundamental rights and values, to foster human well-being and dignity, and to address the consequences of government violence and abuses of power. accordingly, they perceive human rights discourse as an effective, universal, and rational form of argument.14 b. instrumental value of international treaties at present, all un member states have ratified at least one of the nine core international human rights treaties, with eighty percent having ratified four or more instruments.15 while this number provides a clear indication of widespread formal state support for international human rights law, the question remains as to whether states’ ratification of international treaties contributes to the effective realization of human rights. profoundly repressive regimes ratify international treaties and officially express their rhetorical commitment to internationally recognized laws and norms protecting human rights. 16 but an official endorsement of human rights norms does not guarantee state compliance with their international obligations.17 state practices clearly indicate that ratification and public endorsement of human rights norms 9 the foundation of international human rights law, united nations, http://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html (last visited nov. 23, 2015). 10 id. 11 id. 12 chiara giorgetti, a principled approach to state failure: international community actions in emergency situations 48 (2010). 13 jack donnelly, cultural relativism and universal human rights, 6 human rights q. 400, 405 (1984). 14 william a. schabas, the abolition of the death penalty in international law 377 (3d ed. 2002). 15 united nations, supra note 9. 16 emilie m. hafner-burton & kiyoteru tsutsui, justice lost! the failure of international human rights law to matter where needed most, 44 j. peace res. 407, 408 (2007). 17 oona a. hathaway, why do countries commit to human rights treaties?, 51 j. conflict resol. 588, 590 (2007). 2016 columbia journal of race and law 143 by political leaders are no guarantee that these norms will be respected domestically. in other words, even states that have ratified international human rights treaties might not respect the human rights of their citizens. 18 a state may subscribe to an international agreement merely as a symbolic gesture, or as a superficial expression of a presumed interest in combating injustice and promoting human rights. in reality, there is no reliable association between treaty ratification and respect for human rights.19 the effectiveness of treaties is conditional on state compliance, which is in turn dependent on the effective functioning of democracy and civil society.20 in their quantitative research, hanfer-bruton and tsutsui provide evidence to show that: [h]uman rights laws are most effective in stable or consolidated democracies, or in states with strong civil society activism. if so, treaties may be failing to make a difference in those states most in need of reform—the world’s worst abusers—even though they have been the targets of the human rights regime from the very beginning.21 according to hanfer-bruton and tsutsui, international agreements may be effective in states that have strong civil societies.22 in such contexts, civil society constantly lobbies for reform and monitors government compliance with international treaties.23 in repressive states, civil society advocates can operate only within the margins of allocated space, utilizing various mechanisms to mobilize for reform and effect change.24 however, most repressive states lack the two principal interdependent conditions for genuine implementation of human rights law: democratic mechanisms through which the promise of human rights norms can be effectuated, and civil society institutions capable of pressing for the implementation of those norms.25 when neither condition is present, international human rights law is stripped of its tools and its potential.26 as a result, not only does ratification of human rights treaties by repressive regimes fail to guarantee better respect for human rights, it also risks providing those regimes with a political fig leaf to conceal violations of human rights.27 while some human rights scholars have been optimistic about the effectiveness of human rights law and its contribution to the promotion of human rights in repressive societies,28 others have offered evidence to the contrary,29 demonstrating the conditional effectiveness of human rights law.30 the latter tend to doubt states’ actual compliance with international human rights law which, “if it takes place at all, may well happen sporadically and in fits and starts.”31 in this view, even if international law is actually implemented in repressive states, it will not produce results within a short period of time—certainly not at the time of 18 oona a. hathaway, do human rights treaties make a difference?, 111 yale l.j. 1935, 1941–89 (2002). 19 oona a. hathaway, the promise and limits of the international law of torture, in torture: a collection 199, 199–215 (sanford levinson ed., 2004). 20 hanfer-burton & tsutsui, supra note 16, at 407. 21 id. 22 id. 23 id. 24 id. 25 id. 26 schabas, supra note 14. 27 james raymond vreeland, political institutions and human rights: why dictatorships enter into the united nations convention against torture, 62 int’l org. 65 (2008). 28 hanfer-burton & tsutsui, supra note 16. 29 schabas, supra note 14. 30 hanfer-burton & tsutsui, supra note 16. 31 id. at 409. 144 the power of the body vol. 6:2 ratification, nor during the first few years after ratification.32 on the contrary, if actual compliance with international law takes place at all, it does so sporadically, it takes a long period of time to take effect, and it must generally converge with the interests of the state.33 the status of the convention on the elimination of all forms of discrimination against women 1979 (“cedaw”) in the countries that have ratified it offers a helpful example of the gulf between ratification and implementation.34 to date, 189 of the 194 diverse un member states have ratified cedaw, which enshrines the basic political, civil, cultural, economic, and social human rights of women.35 among the ratifying countries are some of the world’s most liberal democracies—such as switzerland, sweden, and france—as well as nations with regimes that are notoriously repressive of women’s rights, such as afghanistan, pakistan, and saudi arabia.36 saudi arabia ratified cedaw in september 2000, expressing its commitment to protecting and promoting the rights of saudi women while highlighting its reservations to several of the convention’s articles.37 fourteen years later, women in saudi arabia still suffer from gross structural inequality and gender-based biases.38 domestic laws regulating citizenship rights, inheritance, and personal status continue to disadvantage saudi women, who are still unable to enjoy the basic right of driving a vehicle based solely on their gender.39 like other international legal instruments, cedaw is not selfexecuting; it provides a blueprint for states to follow in order to promote women’s human rights. moreover, the international community cannot hold states accountable for their failure to respect their obligations under the treaty, because cedaw does not provide the necessary accountability mechanisms to do so.40 as a result, ratification of cedaw alone does not automatically bring about more equal rights for women. as is the case with other international human rights documents, there are often gaps between a state’s ratification, and the actual enjoyment of the rights enshrined in the treaty by its subjects. the islamic republic of iran provides us with another example. 41 in 1968, on the twentieth anniversary of the universal declaration of human rights, tehran hosted the first united nations international conference on human rights, which declared that the “members of the international community fulfill their solemn obligations to promote and encourage respect for human rights and fundamental freedoms for all without distinctions of any kind such as race, colour, sex, language, religion, 32 id. at 407–25 (the “burton model” was designed to assess the effectiveness of international treaties. burton looked at the extent of states’ implementation of the iccpr and convention against torture to examine the effectiveness of international documents. the findings showed that after one year of ratification of an international treaty, states were no more likely to adopt legal reforms). 33 hanfer-burton & tsutsui, supra note 16, at 407–25. 34 saudi arabia: end driving ban for women, human rights watch, oct. 24, 2013, http://www.hrw.org/news/2013/10/24/saudi-arabia-end-driving-ban-women. 35 convention on the elimination of all forms of discrimination against women, g.a. res. 34/180, 34 u.n. gaor supp. (no. 46) u.n. doc. a/34/46, at 193 (entered into force sept. 3, 1981). 36 see united nations treaty collection chapter iv human rights, united nations, https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-8&chapter=4&lang=en (last visited nov. 23, 2015) (listing all parties to cedaw). 37 id. 38 christoph wilcke, steps of the devil: denial of women’s and girls’ rights to sport in saudi arabia, human rights watch, feb. 15, 2012, https://www.hrw.org/report/2012/02/15/steps-devil/denial-womens-and-girls-rights-sportsaudi-arabia. 39 saudi arabia: end driving ban for women, supra note 34. 40 wilcke, supra note 38. see also united nations, supra note 36 (noting, however, that some would characterize the existence of the cedaw committee as an “accountability mechanism” because women can bring individual complaints against their state). 41 the rule of law in armed conflicts project, geneva academy of int’l humanitarian law and human rights, http://www.geneva-academy.ch/policy-studies/research-projects-and-policy-studies/the-rulac-warreport (last visited nov. 23, 2015) (listing the treaties to which the islamic republic of iran has signed on as a party). 2016 columbia journal of race and law 145 political or other opinions.”42 it further emphasized that the primary aim of the united nations in the sphere of human rights: [i]s the achievement by each individual of the maximum freedom and dignity. for the realization of this objective, the laws of every country should grant each individual, irrespective of race, language, religion or political belief, freedom of expression, of information, of conscience and of religion, as well as the right to participate in the political, economic, cultural and social life of his country.43 contrary to the rhetorical value of this proclamation made four decades ago, iran is one of the ten countries that practice the most state censorship.44 the report published by the committee to protect journalists claims that iran maintains one of the toughest internet censorship regimes in the world.45 a review of the reporters without borders 2015 world press freedom index shows that iran has continued to fall in the index since 2003.46 it is currently ranked 173 out of 180 countries surveyed.47 human rights watch describes the status of human rights in iran as dire.48 in 2014, iran was considered one of the biggest jailers in the world of journalists, bloggers, and social media activists. 49 notably, it inflicted the second highest number of executions in the world after china, including the execution of the largest number of juvenile offenders.50 the discrepancy between treaty ratification and implementation is not limited to non-western signatories. for example, out of 178 countries surveyed in 2012 and 2013 on press freedoms, for example, the united states was ranked 132nd.51 c. when the language of rights runs dry in authoritarian societies characterized by strict censorship and restrictions of civil rights and liberties, international treaties cannot be expected to effectively challenge repression, or to minimize stifling bureaucracy, nepotism, bribery, or corruption. legal channels for redress can be inadequate; they may prove ineffective in preventing state practices that discriminate against people on the basis of race, color, sex, religion, or national origin.52 in the most repressive regimes, widespread civic frustration is often overlooked, and calls for adherence to human rights tend to be ignored. disadvantaged citizens continue to live on the margins and 42 proclamation of teheran, final act of the international conference on human rights, teheran, 22 april to 13 may 1968 4, united nations publication a/conf. 32/41 (1968), available at http://legal.un.org/avl/pdf/ha/fatchr/final_act_of_tehranconf.pdf. 43 id. 44 the 2015 list of 10 most censored countries, committee to protect journalists, https://cpj.org/2015/04/10-most-censored-countries.php (last visited nov. 23, 2015). 45 id. 46 2015 world press freedom index, reporters without borders, https://rsf.org/en/ranking/2015# (last visited nov. 23, 2015). 47 id. 48 world report 2015: iran, human rights watch, https://www.hrw.org/world-report/2015/countrychapters/iran (last visited nov. 23, 2015). 49 id. 50 id. (reporting that between january and october 2014, the iranian government had executed at least 200 prisoners, and that in 2014, the united states executed 33 people by lethal injections composed of experimental drugs). 51 in 2015 the united states ranked in 49th place, behind niger and malta. see 2015 world press freedom index, supra note 46. 52 udhr, supra note 2. 146 the power of the body vol. 6:2 endure brutal forms of injustice.53 civil society is generally weak and confined to addressing certain discrete injustices or to tackling the absence of the rule of law.54 in tunisia, for example, prior to the 2010 jasmine revolution,55 its constitution and accompanying domestic law contained language that projected the notion of a liberal, democratic, and modern legal system—legal language that theoretically enshrined political rights and freedoms of association and expression.56 when this aspirational legislation was actually applied by zine el ‘abidine ben ali’s regime, tunisia appeared to be among the leading countries in the middle east when it came to respecting civil and social rights.57 it introduced progressive legislation that enshrined the rule of law and respect for human dignity. however, there remained a profound gap between legal rhetoric and practice.58 the trajectory of human rights in tunisia during the twenty-three year-long dictatorship of president ben ali illustrates how a government that ratified more international treaties than any middle eastern country gradually subverted the language of law as part of a strategy to consolidate absolute power. a long list of treaties was ratified by the ben ali regime, including the convention against torture and other cruel, inhuman or degrading treatment or punishment, 1988; the convention on the rights of the child, 1992; the international convention against the taking of hostages, 1997; the convention concerning the prohibition and immediate action for the elimination of the worst forms of child labor, 2000; the convention on the reduction of statelessness, 2000; and the optional protocol to the convention on the elimination of discrimination against women, 2008.59 all of these treaties were drafted with the aim of advancing the status and rights of women, children, refugees, and minorities.60 53 see 2009 human rights report: tunisia, u.s. dep’t of state: bureau of democracy, human rights, and lab., mar. 11, 2010, http://www.state.gov/j/drl/rls/hrrpt/2009/nea/136081.htm (stating that nongovernmental institutions and international organizations reported governmental violations of human rights, specifically those inflicted by the security forces, including torture, lengthy pretrial detention, forced interrogation, and sexual assault); see also brieg powel & larbi sadiki, europe and tunisia: democratization via association 137 (2010). 54 christopher alexander, back from the democratic brink: authoritarianism and civil society in tunisia, 27 middle east rep. (1997), http://www.merip.org/mer/mer205/authoritarianism-civil-society-tunisia. see also veronica baker, undergraduate honors thesis, the role of civil society in the tunisian democratic transition, cu scholar, u. of colo. 1, 24–35 (2015), http://scholar.colorado.edu/cgi/viewcontent.cgi?article=2212&context=honr_theses (providing further information about the history of the civil society in tunisia. for example, the ruling regime greatly limited the freedom of association. while formally, the law guaranteed the freedom of expression and association article 8 of the constitution of tunisia of 1959, in reality civil society was tightly controlled by the government). 55 eva bellin, lessons from the jasmine and nile revolutions: possibilities of political transformation in the middle east?, 50 middle east brief 1, 5–7 (2011), http://www.brandeis.edu/crown/publications/meb/meb50.pdf. one of the fundamental calls of the revolution was to halt corruption and restore the dignity of the people of tunisia. the jasmine revolution is also known by tunisians as thawrt al-karama or “the dignity revolution.” 56 see generally habib ayeb, social and political geography of the tunisian revolution: the alfa grass revolution, 38 rev. of afr. pol. econ. 467 (2011). 57 see amnesty int’l media briefing, tunisia: routine muzzling of dissent mars upcoming presidential elections, 23rd october 2009, https://www.amnesty.org/en/documents/mde30/013/2009/en/. 58 see u.s. dep’t of state, tunisia report (2009), http://www.state.gov/documents/organization/160078.pdf. 59 see generally ratification of international human rights treaties – tunisia, u. of minn. human rights library, http://www1.umn.edu/humanrts/research/ratification-tunisia.html (last visited nov. 23, 2014). 60 human rights watch, human rights watch world report 1997: events of 1996, 306–07 (1997). 2016 columbia journal of race and law 147 even domestically, ben ali adopted the language of reform when he came to power in 1987.61 he introduced a set of laws and policies that enshrined more liberties,62 such as releasing most of the public figures who were arrested during habib bourguiba’s reign, repatriating opposition members in exile, and increasing state funding to political parties and their publications.63 ben ali also allowed radio and television stations to broadcast calls for prayers (“ezan”), which were banned during the bourguiba era, and permitted the religious supreme council to publish a religious magazine, al-hedaya.64 however, after ben ali was elected for a second successive term, his interests shifted from what appeared to be promoting social and economic rights to building a centralized state regime.65 ben ali gradually reshaped the state from a civil democracy to an autocratic dictatorship.66 he enhanced the role of the ruling party, suppressed opposition, and directly supervised the function of brutal security apparatuses.67 during the second term, citizens realized that the promises of alleviating poverty, combating unemployment, and ensuring the independence of the judiciary and separation of powers were merely re-election campaign slogans.68 in return, focused only on one facet of the international community’s calls for reform: he used their economic ranking reports to reassure the public that the ruling regime was working to advance social welfare, all the while ignoring all other calls for reform, including ceasing torture and respecting human rights.69 between 2000 and 2010, the gulf between the legal rhetoric of human rights and the reality of a legally authorized reign of terror in tunisia continued to grow.70 the ben ali regime continued to ignore repeated condemnations by the international community;71 it used the language of law and human rights to justify its censorship, abuse, and repression of civic rights.72 in the name of security and combating terrorist threats, ben ali had found an opportunity to squash domestic dissent and calls for a more democratic system.73 61 office of the united nations high commissioner for human rights (ohchr), report of the ohchr assessment mission to tunisia january 26 – february 2, 2011, http://www.ohchr.org/documents/countries/tn/ohchr_assessment_mission_to_tunisia.pdf [hereinafter ohchr report]. 62 alejandro sanchez, tunisia: trading freedom for stability may not last–an international security perspective, 9 defence stud. 85 (2009), http://www.tandfonline.com/doi/abs/10.1080/14702430802666660. 63 moshe dayan center for middle eastern and african studies, middle east contemporary survey xxiv 568–71 (bruce maddy-weitzman ed., 2003). 64 nebahat tanriverdi, background of the tunisian revolution, 3 alternative pol. 557 (2011). 65 ohchr, supra note 61. 66 id. 67 routledge handbook of the arab spring: rethinking democratization 72 (larbi sadiki ed., 2014). 68 tunisia country summary, countries at the crossroads (freedom house), 2007, https://freedomhouse.org/report/countries-crossroads/2007/tunisia. 69 see corinna mullin, tunisia’s revolution and the domestic-international nexus, in routledge handbook of the arab spring: rethinking democratization 94–95 (2014) (assessing the tunisian uprising from the international perspective). 70 political liberalization and democratization in the arab world 242 (rex brynen, bahgat korany & paul noble, 1995). 71 public statement, amnesty int’l, tunisia: abuses continue despite official denial, (july 2, 2008), https://www.amnesty.org/en/documents/mde30/010/2008/en/. 72 see amnesty int’l, amnesty international report 2008: the state of the world’s human rights 299 (2008), https://www.amnesty.org/en/documents/document/?indexnumber=pol10%2f001%2f2008&language=en. 73 tunisia: understanding conflict 2012 23 (p. terrence hopmann & i. william zartman eds., 2012). 148 the power of the body vol. 6:2 the ben ali government was among the most repressive countries in the world in terms of freedom of speech.74 in 2008, tunisia was ranked 175th out of 195 countries for protecting or permitting free speech in a survey conducted by freedom house.75 clearly, the numerous international treaties adopted by the tunisian government proved to be ineffective as tools to ensure freedom of expression for the tunisian people. and even though the principle of freedom of expression had been enshrined in the tunisian constitution, 76 the country’s press code of 1975 emptied those free speech provisions of their liberal meaning:77 the code required all publications to be vetted by the ministry of interior before distribution.78 the ministry had to approve each publication and issue a receipt permitting publishers to release and disseminate the publication under consideration.79 generally, such receipts were not issued in accordance with specific criteria in a timely manner, but rather, were bureaucratically delayed and subjected to changing and nontransparent criteria.80 furthermore, the press code classified defamation against state institutions and “offending” the president of the republic as criminal offences.81 the law employed the deliberately broad term with no definition or interpretive guidance as to the kind of acts that could be deemed offensive.82 under such politically and socially repressive conditions, state control impeded the efforts of citizens and human rights advocates to express dissent. constitutional law and human rights guarantees were ineffective tools for protecting citizens’ civil liberties.83 authoritarian regimes not only rule with an explicitly iron fist, but also preserve wealth and power through complex, less conspicuous tools of social discipline and control. modern state power tends to be manifested and enacted through the creation of a culture of dependency whereby citizens are managed through fear, hunger, consumerism, and intimidation; 84 the exploitation of available natural and human resources; and—importantly—control of the language of the law. by strategic deployment and manipulation 74 tunisia country summary, freedom in the world (freedom house), 2008, https://freedomhouse.org/report/freedom-world/2008/tunisia. 75 id. 76 tunisia const., art. 8 (1959). 77 see the press code of 1975 (code de la presse de 1975) and its amendments of 1988, 1993, 2001 and 2006, https://translate.google.com/translate?hl=en&sl=fr&u=http://www.droitafrique.com/images/textes/tunisie/tunisie%2520%2520code%2520de%2520la%2520presse%25202010.pdf&prev=search. 78 see the press code of 1975. the tunisian government tightly controlled all means of disseminating news and information. for example, in 2007, the government blocked citizens’ access to public video-sharing spaces such as youtube and dailymotion, simply because both sites contained materials regarding tunisian political prisoners. as an alternative, activists succeeded in linking information and videos about fundamental rights and civil liberties to the image of the tunisian presidential palace through google earth. see ayeb, supra note 56. 79 the ben ali regime was committed to silencing voices of opposition. in 2004, soon after its establishment, the government blocked nawaat, a collective blog, which strived to cast out collective frustration in tunisia, and contributed to channeling the opposition to ben ali’s regime. the blog remained blocked until 2011. see state power 2.0: authoritarian entrenchment and political engagement world 50–52 (muzammil m. hussain & philip n. howard eds., 2013); see also lyombe s. eko, new media, old regimes: case studies in comparative communication law and policy 149 (2012). 80 see alexander, supra note 54. 81 tunisia country summary, countries at the crossroads (freedom house), 2012, http://www.hrw.org/sites/default/files/related_material/tunisia_2012.pdf. 82 id. 83 see amnesty int’l, amnesty international report 2013: the state of the world’s human rights 271–272 (2013), http://files.amnesty.org/air13/amnestyinternational_annualreport2013_complete_en.pdf (documenting human rights violations under the ben ali regime and demanding legal reform and adherence to international human rights standards for nearly a decade). 84 marwan m. kraidy, the body as medium in the digital age: challenges and opportunities, 10 comm. & critical/cultural stud. 285 (2013). 2016 columbia journal of race and law 149 of power, states portray a “façade democracy”85 and utilize the law to justify government action,86 thereby devaluing the power of law to effect transformative change. the language of human rights law—embodied in international agreements and even in domestic law—offers repressive states a powerful tool to legitimize repressive practices.87 the ben ali regime used the introduction of progressive laws and the ratification of international treaties as political propaganda, aimed at depicting the regime as a progressive, rights-respecting democracy.88 this tactic was designed not only to placate the international community, but also to pacify the discontented tunisian people.89 however, it ensured the centralization of power in the hands of the presidency and his security apparatus.90 it was subsequently used to repress tunisian citizens.91 the ben ali regime rejected in practice the legal principle of political diversity and the right of citizens to assemble or form political parties.92 in 2003, for example, the tunisian government passed counterterrorism legislation with the purported aim of enhancing security and combating terrorism, named the law of 2003 concerning supporting international efforts to combat terrorism and forbid money laundering. 93 between 2003 and 2010,94 under the guise of combating terrorism, the tunisian government arrested and tortured hundreds of citizens, 95 charging them with affiliation with terrorist organizations and incitement to terrorism.96 under the rubric of complementing the international community’s efforts to combat terrorism, the law was used as a means to justify torture, illegal and/or secret detention, and to suppress any form of political dissent.97 the 2003 counterterrorism law opened the door for the judiciary and apparatus to accuse,98 detain, interrogate, and try “terrorism” suspects,99 and it did so through deliberately and ambiguously worded text to 85 larbi sadiki, political liberalization in bin ali’s tunisia: facade democracy, 9.4 democratization 122, 123–25 (2002). 86 in 2002, a referendum revised the tunisian constitution, aiming to empower the president and ensure his permanence in power. the referendum removed the constitution’s three-term limit, allowing the president to run for an unlimited number of successive five-year terms. additionally, it modified the upper age limit for the presidency, raising it from seventy to seventy-five. see powel & sadiki, supra note 53. 87 laura bazzicalupo, imagination, imaginary and the bioeconomic turn of cognitive capitalism, in the politics of imagination 86, 86–91 (chiara bottici & benoît challand eds., 2011). 88 the struggle over democracy in the middle east: regional politics and external policies 32–33 (nathan j. brown & emad el-din shahin eds., 2010). 89 eric goldstein, dismantling the machinery of oppression, human rights watch, feb. 16, 2011, https://www.hrw.org/news/2011/02/16/dismantling-machinery-oppression. 90 stephen j. king, the new authoritarianism in the middle east and north africa 171–74 (2009). 91 id. 92 id. 93 the law of 2003 concerning supporting international efforts to combat terrorism and forbid money laundering (arabic), law no. 75 of 2003, official gazette issue no. 99, 3808 (2003), http://www.cnudst.rnrt.tn/jortsrc/2003/2003a/ja0992003.pdf. 94 human rights watch world report 2009: events of 2008, human rights watch 517, https://www.hrw.org/sites/default/files/reports/wr2009_web.pdf [hereinafter human rights watch world report]. 95 alexis arieff, tunisia: recent developments and policy issues, 5.2 congressional research service 274 (2011), http://fpc.state.gov/documents/organization/155560.pdf. 96 public statement, amnesty int’l, tunisia: abuses continue despite official denial (july 22, 2008). 97 un human rights council, report of the special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, ¶ 10, u.n. doc. a/hrc/20/14/add.1; gaor, 20th sess. (mar. 14, 2012), http://www.ohchr.org/documents/hrbodies/hrcouncil/regularsession/session20/a-hrc-20-14add1_en.pdf. 98 human rights watch world report, supra note 94, at 518. 99 tunisia: counterterror law endangers rights, human rights watch, jul. 31, 2015, https://www.hrw.org/news/2015/07/31/tunisia-counterterror-law-endangers-rights. 150 the power of the body vol. 6:2 make the scope of potential “terrorist” offenses as broad as possible.100 tunisians were sentenced under the law classifying a myriad of individual acts as “offences of terror,” such as growing a beard, dressing in a specific manner, or accessing prohibited websites.101 the un human rights council documented 3,000 cases in which citizens were sentenced under the 2003 law for such “offences of terror.” 102 the un repeatedly expressed serious concerns regarding the 2003 law’s incompatibility with international law, particularly the due process and freedoms of expression and belief provisions enshrined in the international covenant on civil and political rights (icppr),103 which tunisia ratified without reservation in 1969. the un stressed that the counterterrorism law—primarily article 4 104 —did not contain precise or explicit definitions of terrorism, terrorist groups, incitement to terrorism, and financing of terrorism. in effect, the 2003 law was used by the regime as a tool of oppression against tunisian citizens.105 civil society under ben ali’s regime was strictly confined. although more than 9,800 voluntary and national organizations were officially registered as of 2009, few of them were able to operate independently.106 the ministry of the interior had de jure and de facto control over civil society organizations.107 according to freedom house: “most associations were service-oriented and coopted by the regime, and did not foster the kind of horizontal membership that contributes to a civic culture.”108 the state “maintain[ed] a dominant and intrusive role in civil society, [and created] exceptionally restrictive conditions [. . . .]”109 as a strategy to navigate the needs of the international community, the regime allocated a constrained, artificial space for the functioning of civil society. 110 by metaphorically attempting to cover the sun with a sieve, ben ali enabled the authoritarian regime to appear more democratic, thereby making it more resilient and resistant to calls for change. international advocacy organizations such as amnesty international repeatedly addressed the human rights violations perpetrated by the tunisian government. 111 many statements, reports, and studies were released detailing the litany of human rights abuses and calling for urgent state action to halt the abuses and 100 jonathan g. farley, tunisia: forty years on from independence, 270 contemp. rev. 125–27 (1997). 101 id. 102 human rights watch world report, supra note 94. 103 special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, mission to tunisia, human rights council, u.n. doc a/hrc/20/14/add.1 (mar. 12, 2012). 104 id. at 5–6. article 4 of the law of 2003 concerning supporting international efforts to combat terrorism and forbid money laundering (arabic) defines terrorism as “every crime, regardless of its motives, connected to an individual or collective initiative (enterprise) aiming at terrorizing one person or a group of people and spreading fear among the population, for the purpose of, among other things, influencing state policies and compelling it to act in a particular way or preventing it from so acting; or disturbing public order or international peace and security, or attacking people or facilities, damaging buildings housing diplomatic missions, prejudicing the environment, so as to endangering the life of its inhabitants, their health or jeopardizing vital resources, infrastructures, means of transport and communications, computer systems or public services.” 105 tunisia: amend draft counterterrorism law, human rights watch, july 7, 2014, https://www.hrw.org/news/2014/07/07/tunisia-amend-draft-counterterrorism-law. 106 found for the future, study on civil society in tunisia 8–11 (2013) (showing that by 2009, the exact number of civil society organizations was 9,843. 1.4% of the overall percentage of civil society organizations in tunisia worked in the field of law and human rights). 107 id. at 16. 108 tunisia country summary, supra note 81, at 5. 109 powel & sadiki, supra note 53, at 6. 110 amnesty int’l, supra note 83. 111 see, e.g., amnesty int’l, tunisia continuing abuses in the name of security (2009). 2016 columbia journal of race and law 151 promote respect for the rule of law.112 the ben ali regime portrayed tunisia as a country where the rule of law prevailed,113 but amnesty international described a very different picture: the tunisian authorities continue to carry out arbitrary arrests and detentions, allow torture and use unfair trials, all in the name of the fight against terrorism. this is the harsh reality behind the official rhetoric.114 an amnesty international report released in june 2008 documented a pattern of human rights violations in tunisia that included: arbitrary arrests, incommunicado detention and enforced disappearances; torture and other ill-treatment; unfair trials, including before military courts; and abuses in prisons as well as abuses against tunisian nationals forcibly returned from abroad.115 the tunisian government rejected amnesty international’s report, arguing that the allegations had not been properly investigated and denying that “security officials are allowed to abuse the law with impunity.”116 amnesty international issued several statements and reports in 2008, including tunisia: abuses continue despite official denial 117 and in the name of security: routine abuses in tunisia, 118 and held a press conference in paris calling on the ben ali regime to halt human rights abuses and to uphold the law.119 112 amnesty int’l, in the name of security: routine abuses in tunisia (2008) (documenting a number of cases where fundamental human rights abuses were carried out in the name of the fight against terrorism and restoring security, such as allowing torture, unlawful arrests, unfair trials, incommunicado detention, officials falsification of arrest documentation, enforced disappearance, as well as other practices). for a description of the human rights situation on the eve of the revolution, see the making of the tunisian revolution: contexts, architects, prospects 5–8 (nouri gana ed., 2013). 113 press release, general assembly, demanding reforms, speakers say outdated united nations structure leaves organization ill-equipped to address twenty-first century realities, u.n. meetings coverage ga/10865 (sept. 28, 2009), http://www.un.org/press/en/2009/ga10865.doc.htm. 114 tunisia continues human rights abuses in the name of security, refworld, http://www.refworld.org/docid/4a8d54af20.html (last visited dec. 8, 2015) (quoting malcolm smart, director of the middle east and north africa programme, amnesty international). 115 amnesty int’l, supra note 112, at 2. 116 id. (providing that: “the tunisian government rejected amnesty international’s report, stating that it considered it “totally subjective and devoid of any credibility,” and denied that allegations of torture are not investigated and that security officials are allowed to abuse the law with impunity. one year on, however, the tunisian authorities have yet to provide any information indicating that detainees’ torture allegations are adequately investigated or about any prosecutions of officials responsible for torture and other ill-treatment of detainees and prisoners, and such abuses continue to be alleged. indeed, the pattern of human rights violations remains unchanged and none of the measures recommended by amnesty international to address this grave situation have been implemented by the tunisian government”). 117 public statement, amnesty int’l, tunisia: abuses continue despite official denial (july 22, 2008). 118 amnesty int’l, supra note 112. 119 prior to january 2011, a number of statements addressing human rights violations and calls for reform were issued to highlight serious concerns about the status of human rights in tunisia. in 2010, amnesty international alone released at least 20 statements in the english language addressing violations and calling on the government to halt its abuses. see, e.g., amnesty int’l, tunisia: ongoing hunger strikes spotlights rights abuses in tunisia (2010), https://www.amnesty.org/en/documents/mde30/020/2010/en/; amnesty int’l, tunisia: jailed tunisian journalist’s health at risk (2010), https://www.amnesty.org/en/documents/mde30/019/2010/en/; press release, amnesty int’l, tunisia: government must end harassment of former political prisoners (mar. 15, 2010), https://www.amnesty.org/en/press-releases/2010/03/tunisia-government-must-end-harassment-former-political 152 the power of the body vol. 6:2 in this context, we see how the language of law can run dry.120 autocratic regimes have the power to deconstruct the language of legal reform. by assaulting and restricting the language of law, repressive regimes unmake, destroy, and empty legal arguments of their transformative potential. iii. when the body yields: self-immolation as an alternative form of dissent self-immolation is an example of bodily self-destruction, a radical tool of last resort used to materialize and communicate pain whereby the distressed body reclaims power to reject its subjugation. the struggling body not only rejects its subordination by the state, but also becomes an agent that reclaims rights and liberties through its own death. through the logic of corporeal emancipation, oppressed and even quotidian actors may contest the failure of the rational arguments rooted in the language of human rights, catalyze legal, social, and cultural change where rational arguments fail and render the voice of the voiceless legible. the second part of this article examines the power of the human body to spur political and legal action. it analyzes the 2010 self-immolation of tarek mohammad bouazizi in tunisia, which sparked an unprecedented wave of protests across arab countries, leading to what came to be known as the “arab spring.” it contends that when human rights-based arguments are exhausted, space is created for alternative strategies of resistance. mobilized and deployed as a tool of resistance, human bodies become the “argument.” it offers an understanding of the body—and its annihilation—as a form of argument. it explores the difficulty of communicating, expressing, and understanding pain. this part addresses the question: what distinguishes the failure of law’s rationality from the body’s surrender as a moral force to challenge state power? at what point does the collective inability to challenge state power through legal means make the use of the body-in-pain inevitable? a. tarek mohammad bouazizi tarek mohammad bouazizi was a twenty-six-year-old street vendor who sold fruit in sidi bouzaid, an impoverished city in tunisia that lies 190 miles south of the capital tunis. on december 17, 2010, he used paint thinner to set himself ablaze outside the sidi bouzaid municipal office121 in protest of the crushing poverty and the unrelenting political harassment and oppression he had endured.122 prisoners-2010-03-1/. 120 virginia woolf, on being ill, in the essays of virginia woolf 194 (andrew mcnellie ed., 1994) (“finally, to hinder the description of illness in literature, there is the poverty of the language. english, which can express the thoughts of hamlet and the tragedy of lear, has no words for the shiver and the headache. it has all grown one way. the merest schoolgirl, when she falls in love, has shakespeare or keats to speak her mind for her; but let a sufferer try to describe a pain in his head to a doctor and language at once runs dry. there is nothing ready made for him. he is forced to coin words himself, and, taking his pain in one hand, and a lump of pure sound in the other (as perhaps the people of babel did in the beginning), so to crush them together that a brand new word in the end drops out. probably it will be something laughable.”). 121 bouazizi was not the only tunisian who used his body to express his disenfranchisement. on december 22, 2010, in the town of sidi bouzid, 24-year-old lahseen naji was electrocuted after climbing a high-voltage electricity pole to cry out his “hunger and joblessness.” ramzi al-abboudi committed suicide because of his deteriorating financial situation and his inability to repay a business loan he took from the country’s micro-credit solidarity program. see sadiki larbi, tunisia: the battle of sidi bouzid, al jazeera english, dec. 27, 2010, http://www.aljazeera.com/indepth/opinion/2010/12/20101227142811755739.html. 122 rania abouzeid, bouazizi: the man who set himself and tunisia on fire, time magazine, jan. 21, 2011, http://content.time.com/time/magazine/article/0,9171,2044723,00.html. 2016 columbia journal of race and law 153 bouazizi’s plight reflected that of a much larger population that exists on the margins of tunisian society, enduring the injustices of the ruling regime. after leaving school to work as a street vendor at the age of ten, bouazizi had been the primary breadwinner for his family.123 following the death of his father, bouazizi worked several jobs to support his mother and siblings.124 he was targeted over the course of many years by municipal police officers who constantly harassed him for bribes. when he refused, he was subjected to arbitrary fines, confiscation of his wares, and beating by officials.125 on the day of his self-immolation, a policewoman in the public market allegedly slapped bouazizi in the face,126 and her two assistants had thrown away his cart and all of his belongings. his goods were confiscated and he was fined for selling vegetables in the street without a permit. the fine was the equivalent of a full day’s income.127 bouazizi, according to witness, cried and asked the policewoman, “[w]hy are you doing this to me? . . . i’m a simple person, and i just want to work.” 128 in agony, he went to city hall and requested to speak to an official, but no clerk paid attention to his demand; they minimized the incident and asked him to “[g]o home [and] forget about it.” 129 bouazizi returned to the market and expressed his frustration to his fellow vendors; he told them that he would not remain mute and that he would “let the world know how unfairly they were being treated, how corrupt the system was.”130 this humiliating public incident pushed him over the edge. it undoubtedly served to remind bouazizi that as a cart vendor and as a citizen, he was unrecognized, subjugated, and marginalized. even worse, he was not afforded sufficient autonomy to earn a living. bouazizi succumbed to desperation by contemplating suicide;131 he set himself on fire outside the city hall while crying out, “how do you expect me to make a living?”132 his act generated an enormous wave of solidarity.133 the spectacle of a body in flames prompted thousands of people already disenchanted with the regime to shout in a united voice, ash-shaʻb yurīd isqāṭ an-niẓām: 134 “the people demand the overthrow of the regime!” tens of thousands of marginalized, discontent, and enraged citizens—mostly young people, women, children, the elderly, and the 123 peter beaumont, mohammed bouazizi: the dutiful son whose death changed tunisia’s fate, the guardian, jan. 20, 2011, http://www.theguardian.com/world/2011/jan/20/tunisian-fruit-seller-mohammed-bouazizi. 124 kareem fahim, slap to a man’s pride set off tumult in tunisia, n.y. times, jan. 21, 2011, http://www.nytimes.com/2011/01/22/world/africa/22sidi.html. 125 hernando de soto, the real mohamed bouazizi, foreign policy magazine, dec. 11, 2011, http://foreignpolicy.com/2011/12/16/the-real-mohamed-bouazizi/. 126 fedia hamdi, the tunisian market inspector, was accused of slapping mohammad bouazizi. hamdi denied the charges, and in april 2011—after 111 days of incarceration—she was released from jail on grounds of lack of evidence. see elizabeth day, fedia hamdi’s slap which sparked a revolution ‘didn't happen’, the guardian, apr. 23, 2011, http://www.theguardian.com/world/2011/apr/23/fedia-hamdi-slap-revolution-tunisia. 127 praeter, business and communalism: a new paradigm? 60 (2013). 128 marc fisher, in tunisia, act of one fruit vendor sparks wave of revolution through arab world, the wash. post, mar. 26, 2011, https://www.washingtonpost.com/world/in-tunisia-act-of-one-fruit-vendor-sparks-wave-ofrevolution-through-arab-world/2011/03/16/afjfsueb_story.html. 129 id. 130 id. 131 amin maalouf, disordered world xi (2012). 132 bob simon, how a slap sparked tunisia’s revolution, cbs news, feb. 22, 2011, http://www.cbsnews.com/news/how-a-slap-sparked-tunisias-revolution-22-02-2011/. 133 after bouazizi was transferred to the hospital in sfax, his fellow vendors and family members protested outside city hall; they threw stones at the building while shouting, “mohammad was oppressed, he was upset and downtrodden, and you are people who did not help him.” “where is the woman who hit him?” “you just want to humiliate us. why didn't you open your door to him?”. rania abouzeid, the martyr’s mother: an interview with mannoubia bouazizi, time magazine, dec. 14, 2011, http://content.time.com/time/specials/packages/article/0,28804,2101745_2102138_2102239,00.html. 134 arab spring: a research & study guide, the ‘spark’ that started it all, cornell university, http://guides.library.cornell.edu/c.php?g=31688&p=200750. 154 the power of the body vol. 6:2 unemployed—marched nonviolently through the streets of tunisia chanting, “dégage, dégage, dégage!” (“get lost!”), expressing their outrage and calling on the government to step down. 135 bouazizi’s act ultimately sparked a movement for change, leading to revolutions that toppled dictatorships across the arab world—a phenomenon that came to be known as the arab spring.136 it sparked massive waves of bodies marching against injustice in tunisia, egypt, bahrain, yemen, and syria.137 why was bouazizi’s spontaneous act of desperation—the self-induced spectacle of a burning body— a more effective catalyst in challenging the power of repressive arab governments than the language of human rights law that the international community had worked so committedly to ratify and implement globally? b. analyzing the corporeal logic of the oppressed body human beings need to be recognized. by being recognized, they exist. life is theatrical performance. —jeon tae-il the use of the corporeal body as a means of political protest represents an ancient form of resistance.138 throughout history, various groups and individuals have used their bodies as a mechanism of rebellion. inflicting pain and suffering on one’s own body, as in the hunger strike, has been a familiar mode of resistance against state power. in many countries and throughout history, revolutionaries have used their bodies to communicate rejection of injustice; self-immolation and hunger strikes are two modes of political resistance.139 the cuban poet pedro luis boitel died on day fifty-three of his hunger strike in 1972; he was demanding humane treatment in prison. perhaps the most impassioned hunger striker is mahatma gandhi, also known as the father of the indian nation, who fasted seventeen times to protest british rule as he led india’s freedom movement.140 the mass suicide of indian farmers who were facing crop failure in the midst 135 andrea khalil, the language of the political crowd in tunisia, afr. futures, dec. 19, 2012, http://forums.ssrc.org/african-futures/2012/12/19/the-language-of-the-political-crowd-in-tunisia-2/. 136 following bouazizi’s death, a number of other self-immolation incidents took place in the arab world, namely in algeria when mohsen bouterfif set himself ablaze outside the mayor’s office in january 2011. according to the bbc news, six months after bouazizi’s death, at least 107 tunisians tried to commit suicide by setting themselves alight. see, tunisia one year on: new trend of self-immolations, bbc news, jan. 12, 2012, http://www.bbc.com/news/world-africa-16526462. 137 this article does not in any way claim that the “arab spring” is a resounding success, however it recognizes that it has changed the dynamics between citizens and state and helped break the chains of fear that people had, which isn't a small thing. it is undeniable that the unprecedented act of self-immolation created a dynamic that helped people overcome their fear and demand human rights changes—it created a situation that didn't exist before. 138 jonathan rugman, sidi bouzid: roots of the tunisia revolution, channel 4, jan. 20, 2011, http://www.channel4.com/news/sidi-bouzid-roots-of-the-tunisia-revolution. 139 an example of such resistance was seen in 1981, when the irish republican army prisoners, robert gerard “bobby sands” (also a member of the british parliament) and francis hughes launched a hunger strike to demand that they be recognized as political prisoners rather than “mere” criminals; the thatcher government refused to negotiate, and the two men starved to death, which sparked riots in many areas in northern ireland. see the search for peace, hunger strike 1980-82, bbc news london, http://news.bbc.co.uk/hi/english/static/northern_ireland/understanding/events/hunger_strike.stm. 140 pramod kumar srivastava, resistance and repression in india: the hunger strike at the andaman cellular jail in 1933, 7.2 crime, hist. & societies 81 (2003). 2016 columbia journal of race and law 155 of the highest levels of inflation and government crackdown illustrates how collective bodies mobilize to express their desperation and rejection of injustice.141 the use of self-immolation as a political act by tibetan buddhist monks has been well documented.142 thich quang duc of vietnam burned himself to death in 1963 to protest against the prosecution of buddhists by the south vietnamese government; polish accountant ryszard siwiec set a precedent in polish history when he self-immolated in 1968 to protest the warsaw pact military alliances’ invasion of czechoslovakia;143 jeon tae-il, the first self-immolator in the modern history of south korea,144 set himself alight in front of the market in seoul to protest the dire working conditions in the garment industry in 1970.145 in the arab world, self-immolation as a radical political strategy appears to have been unheard of until december 2010. 146 criminal laws in tunisia,147 syria,148 jordan,149 and palestine150 punish anyone who 141 1,500 farmers commit mass suicide in india, the independent, april 15, 2009, http://www.independent.co.uk/news/world/asia/1500-farmers-commit-mass-suicide-in-india-1669018.html (in 2009, over 1,500 farmers in india collectively committed a suicide as a result of their failure in paying off their debts). 142 michael biggs, dying without killing: self-immolations 1963-2002, in making sense of suicide missions 173 (diego gambetta ed., 2005). 143 m. mark stolarik, the prague spring and the warsaw pact invasion of czechoslovakia, 1968: forty years later 25 (2010). 144 not every political self-immolation brings about change or spark a revolution. recently in the united states of america, a number of incidents occurred without igniting a wave of uprisings. for example, in october 2013, john constantino set himself ablaze on the washington national mall. see john constantino identified as man who set himself on fire at national mall, the huffington post, oct. 13, 2013, http://www.huffingtonpost.com/2013/10/04/johnconstantino_n_4046947.html. on the day after, another man committed suicide outside the capitol building in washington, d.c., while holding a sign stating “tax the 1%.” neither incident ignited a revolution in the united states. see, man who shot himself dead on steps of capitol was carrying ‘tax the 1%’ sign, the daily mail, april 12, 2015, http://www.dailymail.co.uk/news/article-3035712/man-shot-dead-steps-capitol-carrying-tax-1-sign.html. an older example, is the case of bruce mayrock, a twenty-year old student at the school of general studies at columbia university of set himself on fire outside the united nations head quarters to protest against the war in biafra. see gs student, 20, immolates himself in front of u.n., columbia daily spectator, volume cxiii, number 118 (june 3, 1969), http://spectatorarchive.library.columbia.edu/cgi-bin/columbia?a=d&d=cs19690603-01.2.8&e=-------en-20--1--txttxin------#. 145 jeon tae-il’s burning himself to death, korea democracy found. no. 1, http://www.kdemocracy.or.kr/mail/newsletter/mail_article_200508_01.html (last visited on 18 july 2015). 146 mattias gardell, so costly sacrifice upon the alter of freedom: human bombs, suicide attacks, and patriot heroes, 2 j. of religion and violence 168, 168–202 (2014). in the arab world, the body has been used as a medium to bring about political change in other ways. palestinian political prisoners in israeli prisons for decades have been resorting to collective hunger strikes (“the battle of empty intestines”) to call attention to imprisonment conditions that violate international norms and to demand recognition as political detainees and face charges or be released, while realizing that the strategy they use carries with it the risk of death. according to michael biggs, there is no documentation to show that self-immolation was practiced in the middle east and north africa. biggs’ study mapped self-immolation between the years 1963 and 2002. see biggs, supra note 141. 147 the penal gazette of tunisia no. 79 of 1913, article 206 (stipulates five years’ punishment for anyone who intentionally assists another to commit suicide). 148 syrian criminal law no. 148 of 1949, article 539 (punishes anyone who assists in a suicide in any way— whether by giving instructions, providing emotional and psychological support, or facilitating the act itself. the law imposes a maximum of ten years’ imprisonment if the suicide is successful. if the attempt is unsuccessful, the law stipulates a sentence of imprisonment between three months and two years). 149 criminal law of jordan no. 16 of 1960, article 339 (punishes anyone who assists in a suicide by imprisonment for a term ranging from three to fifteen years). 150 in palestine, the relevant criminal law is the jordanian criminal law no. 16 of 1960. the law applies the same stipulations as the jordanian legislation. 156 the power of the body vol. 6:2 assists others to commit suicide.151 islam—the majority religion in the arab world—classifies killing the self or innocent others as a grave sin.152 islam honors the human body, reaffirming its sacredness and the religious duty to maintain its moral and physical well-being. 153 various verses of the qur’an154 enshrine the sacredness of life155 and the body.156 islam perceives the body as a gift from god; it is his offering and he alone can give it and take it.157 in this view, human beings do not possess any authority to damage their bodies or terminate their lives.158 the sacredness of the body as envisioned in both islamic 159 and arab cultures renders tarek mohammad bouazizi’s self-immolation all the more powerful and underscores the radical desperation that it expressed.160 under tremendous pain, humiliation, and desperation, he resorted to disregarding powerful cultural and religious taboos.161 151 penal laws in tunisia, jordan, syria, and palestine punish any act that assists, encourages, or inspires others to commit suicide. article 206, law no. 79 of 1913 (promulgating the penal code of tunisia), stipulates five years’ punishment for anyone who intentionally assists another to commit suicide. article 339 of law no. 16 of 1960 (promulgating the criminal code of jordan) punishes anyone who assists a suicide by imprisonment for a term ranging from three to fifteen years. in palestine, the relevant criminal law is the jordanian criminal law no. 16 of 1960. the law applies the same stipulations as the jordanian legislation. article 539 of the syrian law no. 148 of 1949 (promulgating the criminal code of syria) punishes anyone who assists a suicide in any way—whether by giving instructions, providing emotional and psychological support, or facilitating the act itself. the law imposes a maximum of ten years’ imprisonment if the suicide was successful. if the attempt was unsuccessful, the law stipulates a sentence of imprisonment between three months and two years. 152 sahih bukhari vol. 2, bk. 23, no. 445: a saying attributed to the prophet mohammad (hadith), narrated by junab, “a man was inflicted with wounds and he committed suicide, and so god said: my slave has caused death on himself hurriedly, so i forbid paradise for him.” 153 narration of the prophet muhammad (pbuh) states “breaking the bone of a dead person is similar (in sin) to breaking the bone of a living person.” ,sunan abu dawud, bk. 21, hadith 119 154 qur’an surah 6:151 (“whether open or secret; take not life, which god hath made sacred, except by way of justice and law: thus doth he command you, that yet may learn wisdom.” alongside quranic verses, hadiths from prophet mohammad clearly forbid suicide or the killing of others.). 155 qur’an surah 17:70 (“and verily we have honoured the children of adam.”). 156 qur’an surah 2:195 (“and do not throw yourselves in destruction.”). 157 qur’an surah 2:28 (“how can you disbelieve? seeing that you were dead and he gave you life. then he will give you death, then again will bring you to life (on the day of resurrection) and then unto him you will return.”). 158 qur’an surah 6:151 (“come, i will rehearse what god hath (really) prohibited you from”: join not anything as equal with him; be good to your parents; kill not your children on a plea of want: we provide sustenance for you and for them: come not nigh to shameful deeds. whether open or secret: take not life, which god hath made sacred, except by way of justice and law: thus doth he command you, that ye may learn wisdom. qur’an). 159 in bouazizi’s case, there is no significant evidence that he was triggered by religious motives to search for martyrdom or shahada. bouazizi was not particularly religious, he was not a member of an organized movement, and he did not have any political affiliation. he immolated himself as a last refuge of frustration and desperation, without anticipating the greater impact of his action. therefore, the religious factor does not provide a sufficiently descriptive framework nor does it provide us with the answer of why use of the corporal body as a political act motivated a wave for change. (maybe a source needed/removal needed) 160 the usage of the sacred human body in protest of injustice raised controversies among islamic jurists (foqaha’). al-azhar, the most respected religious institution in sunni islam, issued a statement stressing that islam strictly forbids suicide for any given reason, further arguing that shari’a law outlaws suicide as an expression of anger or protest. however, the egyptian islamic theologian yusuf al-qaradawi expressed sympathy with those who use their bodies as means to revolt against injustices and classified bouazizi’s act as one of desperation and frustration. he blamed the authoritarian regimes for oppressing their citizens and triggering them to commit suicide. qaradawi considered the spectacular act of bouazizi setting his body alight as a means of gaining freedom and a call for god to emancipate him and other marginalized tunisians from the state’s oppression. see ahmad muath alkhateeb al 2016 columbia journal of race and law 157 bouazizi’s self-immolation can be regarded not merely as an individual or private act, but rather as a physical expression of a broader social struggle; the ramifications of his act extended well beyond the boundaries of his own body. bouazizi was one of many citizens who faced limited opportunities and constant harassment by the state. these vulnerable, powerless, and disadvantaged citizens enjoyed few, if any, political, economic, and civil rights and liberties. in order to resist the injustices he experienced, bouazizi was acutely aware that no alternative means were available to him, certainly no legal means. bouazizi was a victim “whose judgment and reason had been compromised by [his] experience.”162 fully aware of the significance of the destruction of his body in islamic theology, bouazizi nonetheless utilized his corporeal body as a tool to give voice to his frustration.163 the fact that he set himself on fire in a public space and in front of a public building that stood for the state suggests that he wished to convey the message that his action was not an individualized, private act of suicide or self-emancipation. his act was resistance at the limit of the very idea of the human, thereby revealing the limits of the human as a rights-bearing subject in general. while bouazizi probably did not anticipate that his act would ignite a wave of change across the arab world, his self-immolation can be interpreted as a political act of “last resort,” a rejection of state control and withdrawal from the broken social contract. his profound pain overcame idealized spiritual notions of the sacredness of the body and the sinfulness of the act.164 since the state breached its commitment to the social contract, bouazizi in return manifested his suffering by breaking his “sacred” religious contract. iv. understanding when bodies-in-pain become the argument a. the difficulty of communicating and understanding injustice this section analyzes the corporeal logic and the role of bodies-in-pain as a medium of political expression. bouazizi’s actions may offer a window into how the body can act as a tool of defiance when the law “runs dry.” although one should not assert a causal relationship between an individual act of corporeal protest and the launch of a mass movement, it is useful to examine the vital role of the human body as a medium for enacting resistance when the law proves ineffective. the injustice of a dictatorship is borne by the citizenry, both collectively and individually.165 the daily struggle that results from marginalization, disempowerment, and powerlessness, combined with the constraints on expressing and challenging these same injustices, generate a sense of frustration. the husseini, between the flaps of bouazizi and the flights of qaradawi, news source needed aug. 24, 2011, http://www.qaradawi.net/articles/86-2009-12-12-10-35-10/5125-2011-08-24-09-07-14.html. 161 yusuf al-qaradawi considered bouazizi’s act as a form of jihad al mathloom, what could be considered as the weapon of the oppressed. this doctrine chiefly provides two circumstances within which muslims are permitted to engage in this explicit form of jihad: when muslims know that injustice is being inflicted and that it is in conflict with islamic shari’a principles, and when there is a volitional intent to make a change, whether by proactively engaging in making (doing) change, or by verbally casting a rejection, or lastly by resisting discreetly (in their hearts). see ahmad muath alkhateeb al husseini, supra note 160. 162 liisa h. malkki, refugees and exile: from “refugee studies” to the national order of things, 24 ann. rev. of anthropology 495 (1995). 163 in an interview with bouazizi’s mother, mannoubia bouazizi, she explained how they are a simple religious family whose devotion is expressed through prayer and praising god. she described her son as a martyr and said that “i always ask mercy for his soul and the souls of all the martyrs.” see abouzeid, supra note 122. 164 susan raine, body, emotion and violence: palestinian suicide bombing/martyrdom (1993-2005), 17.2 marburg j. religion 1, 1, 3 (2013). 165 deborah lupton, the emotional self: a sociocultural exploration 37 (1998). 158 the power of the body vol. 6:2 society—as one body—metaphorically suffers from the pain of injustice. this pain begins as an internal phenomenon that is then manifested in various ways by the oppressed populace.166 this pain is imminent in the various trajectories of citizens’ lives, particularly in their struggle to enjoy fundamental social, civil, political, or economic rights. 167 under a dictatorial regime, citizens are prevented from engaging in political life or from expressing their opinions freely. their access to employment, justice, health, and education is limited. state oppression—including the curtailing of rights and liberties, the control of resources, censorship, corruption, and nepotism—presents additional obstacles for citizens living under a tyrannical government. the lived reality of oppression, subjugation, and marginalization in various aspects of daily life produces a sense of profound frustration and desperation. as previously mentioned, bouazizi’s precarious existence on the margins of society without adequate legal or political representation, made him especially vulnerable to state interference and control.168 yet popular response to his act revealed that his suffering was endemic to the lives of most tunisians.169 democratic dialogue is eroded through repressive policies—the state’s “language of communication” with its citizens.170 every practice that limits citizens’ liberties and freedoms can be considered an assault on democratic dialogue.171 the restrictive policies of repressive regimes limit communication among citizens and, as a result, silence dialogue between citizens and the ruling regime.172 this process of limiting channels of communications leaves citizens frustrated and desperate. as a collective body, a society under dictatorship experiences collective pain caused by governmental oppression.173 communicating the experience of injustice to fellow citizens and to those entrusted to restore justice is often difficult under such political conditions. oppressive regimes operate from a site external to the social “body”—a site of power from which the regime dictates the rules and controls the language of civic communication.174 at the same time, repressive regimes construct an illusory image of an idealized, wellfunctioning society. 175 in such a context, it is difficult for citizens and civil society to resist and cast out or challenge their experience of injustice. the chasm between the state’s portrayal of the government as a just and rights-respecting body and the violent and repressive reality of everyday life under a dictatorial regime can induce a sense of social dysphoria. accordingly, the individual citizen’s pain and the state’s awareness of inflicting injustice become two distinct experiences, even two separate worlds.176 the ruling elites exist in a place of control remote from the general population, and in that privileged space it is difficult for them to understand and relate to society’s pain and struggle. 166 id. 167 id. 168 giorgio agamben introduced the notion of “bare life” to refer to those who are politically damaged and denied both their political and legal representation. in his reference to the stateless refugees he argues: “insofar as its inhabitants were stripped of every political status and wholly reduced to bare life, the camp was also the most absolute biopolitical space ever to have been realized, in which power confronts nothing but pure life, without any mediation.” see giorgio agamben, homo sacer: sovereign power and bare life 171 (1998). 169 see powel & sadiki, supra note 53. 170 jürgen habermas, the structural transformation of the public sphere 7 (1989). 171 elaine scarry, the body in pain 4 (1985). 172 id. 173 mabel berezin, secure states: towards a political sociology of emotion, in emotions and sociology 33 (jack barbalet ed., 2002). 174 talal asad, on suicide bombing 32–36 (2007). 175 see scarry, supra note 171, at 72. 176 id. 2016 columbia journal of race and law 159 experiencing one’s own pain and understanding the pain of others are two wholly different sets of events.177 bodies-in-pain—those ruled by repressive regimes—perceive the experience of pain as an absolute, totalizing reality.178 it is a non-negotiable, uncontested feeling of injustice “having certainty.”179 however, this reality remains incomprehensible to the regime that exists external to the sufferer’s body. the ruling authorities understand their exercise of authoritarian powers as a manifestation of democratic legitimacy and are far removed from the concerns and struggles of ordinary citizens. as such, calls for reform stemming from domestic civil society or from the international community are unlikely to gain traction. even democratic regimes can have difficulty grasping the true sense of struggle experienced by certain members of society. regardless of the amount of effort that states invest in comprehending social struggles, even with “the most heroic effort [pain] can’t be grasped,”180 since the experience of hearing about pain amounts to an “uncertain, shadowy kind of existence unless and until they are transformed, deprivatized and deindividualized, as it were, into a shape to fit them for public appearance.”181 according to elaine scarry, “hearing about pain” might constitute a model of what it is “to have doubts.”182 even if pain is expressed, only a faint and blurry picture of the lived experience can actually be ascertained by the listener. as such, state reforms, as serious as they may be, can only address a fraction of the struggle being communicated. the tunisian government—like other authoritarian regimes—repeatedly claimed to be mystified by protestors’ demands. the regime constantly denied its human rights abuses and offered assurances that it was taking active steps to bring its laws into alignment with its international human rights obligations.183 on several occasions, the government acknowledged the international community’s criticism by introducing progressive-sounding legal reforms, which in theory guaranteed better domestic protections for human rights.184 in practice, however, these legal reforms proved to be merely another example of hollow rhetoric.185 in a letter dated september 7, 2010, human rights watch (“hrw”) asked mr. lazhar bououni, the minister of justice and human rights, and mr. rafik belhaj kacem, the minister of interior and local development, to explain a number of human rights violations, mainly with respect to freedom of expression and the right to unionize.186 hrw expressed concern about the denials of labor union activities, government prosecution of unionists, restrictions on the right to strike, the suppression of attempts by journalists to unionize, the targeting of the general union of tunisia, and the torture by police of union members, among other issues.187 on october 6, 2010, the tunisian government replied: it emphasized the government’s respect of human rights and citizens’ dignity and reiterated the assurance of the tunisians laws for the right to unionize.188 the government expressed its lack of comprehension of hrw queries and further denied allegations of possible police brutality and harassment of tunisian students, including the case of mohamed 177 id. 178 id. 179 id. 180 scarry, supra note 171, at 4. 181 id. 182 scarry, supra note 171, at 13. 183 public statement, amnesty int’l, tunisia: abuses continue despite official denial (july 2, 2008), https://www.amnesty.org/download/documents/56000/mde300102008eng.pdf. 184 amnesty int’l, supra note 112, at 3. 185 id. 186 human rights watch, the price of independence: silencing labor and student unions in tunisia 6 (2010), https://www.hrw.org/sites/default/files/reports/tunisia1010w.pdf. 187 id. 188 id. at 51–53. 160 the power of the body vol. 6:2 soudani, who was arrested on october 22, 2009.189 the government repeatedly stated that such allegations were “false and completely baseless.”190 when society as a collective body endures pain, this experience is internal; the feelings are private and contained within the body, it is an invisible process. while broader characteristics are collectively shared, individuals go through the process independently.191 only when this experience of pain and struggle finds a vent for its expression does it generate a collective sense of frustration.192 however, the pain cannot be addressed without being repositioned from the inner sphere to the public and political domains. this process of shifting pain from the private sphere to the public domain is the first stage of rendering visible the sense of frustration and desperation. 193 this process explains why social struggles cannot be effectively comprehended and “taken up” by the rational narrative provided by human rights law. human rights law fails to provide a remedy for the collective pain; it becomes an ineffective tool to provide answers to the widespread collective feelings of frustration. rather, more visible, direct, and robust means of manifestation that can communicate the feelings of pain and suffering are required; physical embodiment of the metaphorical is necessary to articulate that pain—the individual body.194 b. the linkage between expressing and diminishing injustice expressing pain can be an important prerequisite for diminishing it.195 the body that endures pain must find a way to express it, a cathartic medium whereby it can transfer its feelings of struggle from the inner, private space to the shared, external sphere. once pain is manifested and communicated to the public domain, the public can collectively work on eliminating the struggle, diminishing the pain and easing the suffering;196 “the act of verbally expressing pain is a necessary prelude to the collective task of diminishing it.”197 under conditions of oppression and subjugation, how can individuals collectively—in other words, society—communicate pain? as previously discussed, authoritarian sovereign powers subordinate and disempower their own citizens. under such conditions, tyrannical regimes control the language of civic communication—the democratic dialogue that occurs between citizens and their government—and exercise their power to give language meaning in order to marginalize and subjugate their citizens. in a november 2011 report, hrw identified ten areas of repressive legal provisions that are “incompatible with a democratic and pluralistic society that respects its citizens’ basic human rights.” 198 the report detailed how these laws were utilized by ben ali’s regime to “stifle civil society, diminish judicial independence, limit political participation, and shield the president from accountability for any legal trespass, no matter how grave.”199 it emphasized how during 189 id. at 57. 190 id. 191 scarry, supra note 171, at 52–53. 192 id. at 56. 193 id. 194 judith butler, performative acts and gender constitution: an essay in phenomenology and feminist theory, 40 theatre journal 519, 521 (1988). 195 sigmund freud, psychoanalysis: freudian school, se, xx 261 (1984). 196 scarry, supra note 171, at 9. 197 id. 198 repressive laws concerning freedom of expression, privacy and freedom of expression online, freedom of association, freedom to form political parties, freedom of assembly, freedom of movement, the right of citizens to run for public office and choose candidates, judicial independence, state abuses under the guise of fighting terrorism, presidential immunity of international crimes. see human rights watch, tunisia’s repressive laws 4, 4–8 (2011). 199 id. 2016 columbia journal of race and law 161 ben ali’s era legal provisions were used to punish citizens for “expressing views critical of the government and for addressing other subjects deemed improper for public debate.” while using the language of freedom and rights, and in the name of security and restoring public order, the language of the law limited the ability of tunisians to “express and access dissenting viewpoints, form independent associations or political parties, compete meaningfully for political office, and assemble in order to protest against the government and its policies.” as a result, the government constantly targeted human rights activists, lawyers, writers, journalists, and political opposition members. they were harassed and imprisoned for violating these repressive laws.200 state restriction of freedoms and civil liberties leads to a pain and frustration in the body politic. some citizens are more vulnerable than others, and most submit to the ruling regime, surrendering their freedoms and liberties in exchange for being left alone, or at least to minimize threats of state violence. calls for reform and resistance are sublimated and displaced in the name of survival. while scholars such as costas douzinas have conceptualized human rights as arising from a universal recognition of one’s suffering by others, the tunisian example shows us that this is not necessarily the case; state repression was well-known, and global condemnation did not translate into respect for the human rights of tunisian citizens.201 in circumstances of extreme political repression, human rights are not capable of fulfilling this kind of recognition.202 rather, the imaginary justice of human rights must yield to the irrational, the material, and the literally embodied justice of the body-in-pain.203 the tunisian example demonstrates how the public manifestation of this pain may succeed in breaking collective acquiescence to tyranny when well-documented legal rights violations have little to no impact. under the pressure of eliminating pain and suffering, there are limited ways in which sufferers—or those who wish to speak on their behalf, such as lawyers and human rights activists—can verbalize and materialize pain. when suffering is persistent, verbal strategies are limited, inaccessible, and uncertain for those in the margins, such as bouazizi. for example, “naming and shaming” strategies204 may actually contribute to worsening the pain experienced by society.205 instead of bringing the pain to light, expressing and articulating pain may make it increasingly invisible.206 paradoxically, the result can be the creation of more restrictions on freedoms and liberties. in this context, bodies-in-pain can operate as a last resort means of resistance. 207 the public spectacle of corporeal pain can take up where language, including the language of law, fails.208 public performances of bodily pain and negation, including self-immolation, can mobilize resistance to stateimposed suffering where language and law have run out of their productive capacities. as warner argues, when “minoritized subjects had few strategies open to them,”209 the destruction of the body can become one of the very few available tools to gain access to the public sphere to outwardly articulate inner pain to the external, political sphere. it can be the sole remaining avenue of rejecting political, social, and economic 200 id. at 8–24. 201 costas douzinas, the end(s) of human rights, 26 melb. u. l. rev. 445 (2002). see also john l. morss, saving human rights from its friends: a critique of the imaginary justice of costas douzinas, 27 melb. u. l. rev. 889 (2003). 202 scarry, supra note 171, at 8–24. 203 id. 204 emilie m. hafner-burton, sticks and stones: naming and shaming the human rights enforcement problem, 62 int’l org. 689, 690 (2008). 205 james h. lebovic & e. voeten, the politics of shame: the condemnation of country human rights practices in the unchr, 50 int’l stud. q. 861, 872 (2006). 206 international human rights law, supra note 7, at 13. 207 talal asad, supra note 174, at 19. 208 habermas, supra note 170, at 9. 209 michael warner, publics and counterpublics, 14 public culture 49 (2002). 162 the power of the body vol. 6:2 suppression.210 it becomes the tool, with all its trappings of sin and haram, despite religious prohibitions against inflicting bodily harm, to recognize the suffering of victims of tyranny and to intervene in order to challenge injustice. c. the linkage between pain and power through the politics of death, the corporeal body becomes a powerful political tool to challenge authoritarian sovereign powers.211 it becomes an agent that exceeds human rights–based arguments and radically challenges the authority of the ruling powers. as hardt and negri expressed, “when life itself is negated in the struggle to challenge sovereignty, the power over life and death that the sovereign exercises becomes useless. the absolute weapons against bodies are neutralized by the voluntary and absolute negation of the body.”212 applying this analysis to tunisia, bouazizi’s act of self-immolation became a vehicle for expressing collective pain. he communicated his pain to other bodies that, to a certain extent, shared that pain. by manifesting his pain physically, bouazizi projected the limit of internal feelings of subjugation to the external sphere, thereby materializing previously inexpressible feelings in a tangible and highly visible way. when he set himself on fire outside city hall, the public “took up” his act of defiance. to borrow a notion from speech act theory, bouazizi’s immolation amounted to an utterance that had a perlocutionary, or persuasive, effect on its audience.213 his shocking expression of pain, discontent, and powerlessness resonated with the ordinary tunisian, whose own life experiences caused them to empathize with bouazizi. by expressing his pain through this external manifestation, bouazizi transferred his inner political struggle to the outer sphere, becoming an agent of communication for society’s pain, thereby persuading them to act. the tunisian public empathized with his act, probably seeing a reflection of their own pain in his burning body and accordingly feeling a collective duty to make efforts to diminish it.214 by reaching out to the pain of others, bouazizi’s extreme act forged a deep political connection that human rights law was unable to accomplish. it challenged the limits of the language of human rights with its “emancipatory language.”215 it compensated for the failure of human rights and the moral resonance, the uplifting character and the universality that they promise but, at least in the case of tunisia, did not deliver. while the enabling conditions for human rights law to do its work were absent in the tunisian context, the conventions necessary to render bouazizi’s action as speech were in fact present, thus felicitously persuading the tunisian people to rise up against the ben ali government. this experience is limitless; it amounts to metaphorically entering the forbidden garden, where the use of corporeal bodies has the power to shatter boundaries and barriers of terror, fear, dependency, poverty, hunger, and injustice. when pain cannot be denied nor confined, the body, as an agent, expresses its own desperation and frustration, as well as that of speechless others.216 elaine scarry articulates this idea in the body in pain: “though there is no ordinary language for pain, under pressure of the desire to eliminate pain, 210 jacob uzzell, biopolitics of the self-immolation of mohamed bouazizi, e-international relations, nov. 7, 2012, http://www.e-ir.info/2012/11/07/biopolitics-of-the-self-immolation-of-mohamed-bouazizi/. 211 id. 212 michael hardt & antonio negri, multitude: war and democracy in the age of empire 332 (2005). 213 see generally, john l. austen, how to do things with words (1975). 214 nathan stormer, embodied humanism: performative argument for natural rights in “the solitude of self”, 36 argumentation and advocacy 51 (1999). 215 david kennedy, the international human rights movement: part of the problem?, 15 harv. hum. rts. j. 101, 111 (2002). 216 judith butler, bodies that matter: on the discursive limits of “sex” 63 (1993). 2016 columbia journal of race and law 163 an at least fragmentary means of verbalization is available both to those who are themselves in pain and to those who wish to speak on behalf of others.”217 as such, the body can be perceived as an agent of change, and self-immolation as an act that rejects submission to an authoritarian regime. the body becomes the narrator of the long history of injustice.218 as judith butler suggests, the body comes “in a manner of doing, dramatizing, and reproducing a historical situation.”219 although generally an individual voice narrating a broad state of oppression may have little impact,220 when amplified and communicated, a sole voice may feed into a broader movement. the image of bouazizi’s flaming body was writhing in pain, yearning for freedom, and longing to be understood, possessing a kind of power that the rational arguments of law could not conjure in the tunisian setting. this burning body materialized what lacan might term das ding, the thing that represents or signifies the collectively sublimated sense of powerlessness and abjection.221 bouazizi’s body became an icon for both the emptiness and pain that the regime had produced in the individual, and for resistance to that very state power; “[a] generic symbol of the resistance to injustice.”222 this spectacle of one body acting as an agent of change fueled mass mobilization set on transforming this individual act into a collective movement. bouazizi’s means of expressing resistance to oppression was violent, painful, and no doubt shocking to the public. it demanded a response. observers could not stand immobile while witnessing the excruciating destruction of the spiritually and culturally sacred body. bouazizi’s action enabled a kind of collective catharsis. the struggle of the burning body, its manifestation of physical pain, and the shared sense of frustration all fueled the sense of solidarity and collective struggle; this enabled bouazizi’s body to have political ramifications in the wider social sphere.223 it can be argued that bouazizi’s act was a form of political protest in that its genesis and implications went beyond the individual act of suicide. his frustration was an individual case among millions of others; as such, a broader sense of frustration and desperation was projected onto, and out from, his actions. after bouazizi’s pained, oppressed body cried out the story of pain and struggle, millions of other unheard, frustrated bodies merged with his. through his unprecedented action in the arab world, others acquired the impetus to relinquish their fear and to articulate their shared desperation. by using his corporeal body, bouazizi succeeded in rendering injustice visible. he managed to give a clear, loud voice to the unheard, if only for a brief, yet staggering moment. at the moment the body is destroyed, it becomes the center of attention. feeding into the frustration of unspoken voices, it transforms one individual’s act into a provocative phenomenon, spurring broader social movements for change.224 his wounds communicated collective injury. as a result of the failed communication of the rational argument, which was systemically discredited by the ruling regime, bouazizi’s self-destruction was an act of last resort. when rational arguments exhaust their limits, wounds become “accepted as objective evidence, as 217 see scarry, supra note 171, at 13. 218 id. 219 see butler, supra note 216, at 68. 220 office of the high comm’r for human rights, supra note 7 at 12. 221 the ethics of psychoanalysis 1959-1960: the seminar of jacques lacan book vii 134, 150 (jacques-alain miller ed., dennis porter trans., 1997). 222 see de soto, supra note 125. 223 judith butler, bodies in alliance and the politics of the street, european inst. for progressive cultural policies, sept. 2011, http://www.eipcp.net/transversal/1011/butler/en. 224 b. c. ben park, sociopolitical contexts of self-immolations in vietnam and south korea, 8 archives of suicide res. 1, 81–97 (2004). see also james a. benn, burning for the buddha: self-immolation in chinese buddhism 79–81 (2007). 164 the power of the body vol. 6:2 more reliable sources of knowledge than the words of the people on whose bodies those wounds are found.”225 v. the return to the law when repressive regimes deny and eliminate the emancipatory potential of legal claims and rights arguments, citizens may turn to alternative modes of resistance including using the body as catalysts for change.226 in this regard, we can see how under conditions of repression and injustice, the human body is transformed into an irrefutable argument for change when other avenues of legal argument have run out. this final section examines how corporeal acts of resistance can spur collective actions that disrupt existing legal regimes and yield legal change and transformation. that is, acts of bodily resistance emanating from outside the formal domains of law and legal argument can catalyze social movements key to achieving political and legal reform in repressive contexts. the individual body can work to reclaim law for the social body. a. the dialectic of the body-in-pain in the case of revolutionary tunisia, the individual body-in-pain reached out to vast, throbbing, and frantic waves of muffled and pulverized bodies.227 it mobilized a massive wave of anonymous bodies— “anonymous corporeality”228—to march the streets of tunisia. in an unprecedented theatrical scene, all the bodies-in-pain merged and became one anonymous body speaking for the collective.229 they chanted the mantra of the jasmine revolution, ash-shaʻb yurīd isqāṭ an-niẓām, 230 expressing their repudiation of the authoritarian ben ali regime and their collective will to bring it down. the jasmine revolution’s collective action mobilized a new kind of politics, one that circumvented the failure of law’s rationality and its empty promise of safeguarding citizens’ rights. as such, the body-inpain (the means that brought the collective together) was repositioned from a helpless disenfranchised body to a proxy of change. remarkably, as an empowered body, it negotiated a new social contract and laid the basis for a new body of the law. the act of self-destruction becomes a voice that demands justice. it communicates, not only an individual pain, but also a collective injury, a collective state of frustration. through the ultimate mode of protest, the body-in-pain creates a moment of emancipation and opens a space for new possibilities. how should we understand the emancipatory and productive power of this extraordinary act of bodily destruction? how does the negation of oneself become a validation of the existence of the whole? the tunisian revolution and reform process provides an example of how solitary acts of bodily resistance can fuel the social mobilization needed to achieve regime change, constitutional reform, and legal transformation. 231 the emergence of this synthesis suggests a dialectical relationship between rational 225 see malkki, supra note 162, at 387. 226 see malkki, supra note 162, at 387. 227 see malkki, supra note 162. 228 id. 229 id. at 388. 230 see supra law no. 75 of 2003 note 93. 231 in the recent report of the freedom house, tunisia’s level of freedom has improved since 2011; positive signs include a greater margin of academic freedom, the establishment of labor unions and the lifting restrictions on travel. currently tunisia is ranked as a partly free country; with a score of 48 out of 90, it is ranked the second in the middle east. the report noted that among all the arab spring countries in the middle east that strived to topple dictatorships, tunisia stands solely in the corner as a rare case of hope. freedom in the world 2014: middle east and north 2016 columbia journal of race and law 165 arguments of law and the irrational spectacle of the body-in-pain. the new tunisian constitution honors the body-in-pain as a witness,232 and also serves as a reminder of the limits of law in dealing with certain forms of injustice. accordingly, it is important to understand how the body-in-pain was reconfigured in the body of post-revolutionary law and was translated from the language of disenfranchisement and suffering back into a language of effective rights. b. the dialectic of the body-in-pain and a virtuous body in law in october 2011, following months of protest and the overthrow of ben ali’s regime, the elected national constituent assembly (“nca”) was commissioned to draft a new constitution for postrevolutionary tunisia. 233 several blueprints were advanced 234 and drafts were prepared; the text was vigorously debated.235 on january 26, 2014, a new constitution236 was ratified to reflect and confirm the “victory over dictatorship.”237 the post-revolution constitution—in its opening lines—states that the people of tunisia will rule their country and utilize the law to speak on their behalf. we, the representatives of the tunisian people, members of the national constituent assembly, taking pride in the struggle of our people to gain independence and to build the state, to eliminate autocracy and achieve its free will, as a realization of the objectives of the revolution of freedom and dignity, the revolution of 17 december 2010–14 january 2011, out of loyalty to the blood of our virtuous martyrs and the sacrifices of tunisian men and women over the course of generations, and to break with injustice, inequity and corruption.238 the preamble anchors the constitution in the country’s history. it looks backward to narrate the past and the struggle of the nation during the prior regime. it gives significance to the struggle and sacrifices of the tunisians to liberate themselves from tyranny and inequality. africa, freedom house (2014), https://freedomhouse.org/sites/default/files/middle%20east%20and%20north%20africa%20fact%20sheet.pdf. 232 of 2014 (tunis.), translated in [constitution] دستور تونس https://www.constituteproject.org/constitution/tunisia_2014.pdf. 233 the best and worst of tunisia’s new constitution, al-monitor, jan. 29, 2014, http://www.almonitor.com/pulse/politics/2014/01/tunisia-constitution-drafting-best-worst.html##ixzz3okjkvbue. in its legislative process, the national constituent committee faced different challenges to reach to consensus on an agreeable language for the constitution. it had also to overcome the tragic assassination of the general coordinator of the popular movement and member of the national constituent assembly, mohammed brahmi, on july 25, 2013. not to mention the general political climate of all “arab spring” countries which seems to be stumbling toward an uncertain future. 234 of aug. 14 2012 (tunis.), translated in [draft constitution] دستور تونس http://www.constitutionnet.org/vl/item/tunisia-draft-constitution-14-august-2012. ونست دستور [draft constitution] of dec. 14 2012 (tunis.), translated in http://www.constitutionnet.org/vl/item/tunisia-draft-constitution-14-dec-2012. draft constitution of 22 april 2013, http://constitutionaltransitions.org/wp-content/uploads/2013/05/tunisia-thirddraft-constitution-22-april-2013.pdf. 235 the author has compared the preamble of the aforementioned drafts with the promulgated constitution of 2014 and found very minor variations; on the discussion here draws on the promulgated constitution of 2014. 236 tunisia signs new constitution into law, al-jazeera, jan. 27, 2014, http://www.aljazeera.com/news/africa/2014/01/tunisia-assembly-approves-new-constitution201412622480531861.html (last visited on jan. 27, 2014). 237 id. 238 2014 tunisia const. pmbl. translated in https://www.constituteproject.org/constitution/tunisia_2014.pdf. 166 the power of the body vol. 6:2 the preamble explicitly emphasizes the role of the people in achieving change. accordingly, it acknowledges the successful mobilization of the revolution, which the tunisians launched in order “to achieve the objectives of the revolution for freedom and dignity, the revolution of december 17, 2010 through january 14, 2011.”239 it reaffirms the nation’s commitment to the teachings of islam even as it emphasizes the role of the people by enshrining the sacrifices made by the “virtuous martyrs” and constitutionalizes the tale of collective injury and corporeal suffering as the predicate for emancipation. it is a reminder of the power of the body when it performs pain to catalyze socio-political change. it offers a timeless commemoration of all pained bodies and privileges their sacrifice and their drive to free themselves from tyranny regardless of their gender, age, background, or personal conditions. the preamble invokes the specter of a body-in-pain and grants it a divine significance; it references “virtuous martyrs” who sacrificed their lives and resorted to radical strategies to break “with injustice, inequity, and corruption.”240 similar to the constitution of 1959, the country’s first since it gained independence from france in 1956, the new constitution announces the beginning of a new era where the free will of the people is the main guiding principle of the state (“bequeathing a secure life to future generations, realizing the will of the people to be the makers of their own history”), implying that tunisia was never independent and the tyrant ben ali’s regime was a continuity of the past “foreign domination.”241 remarkably, both the 1959 and the 2014 constitutions used the same language to describe colonial domination; both referred to the past regimes as tyrannical.242 the constitution of 1959 defined tunisia as a democracy founded on the sovereignty of the people and repeatedly invoked the importance of remaining faithful to universal human values—human dignity, justice, and liberty. it paid tribute to the will of the tunisian people, who freed themselves from exploitation, regression and foreign domination thanks to their strong cohesion and their fight against tyranny.243 the 2014 preamble also casts the radical acts of self-destruction as acts of martyrdom, despite the religious and cultural consequences of bodily desecration. the constitution portrays the individual body-inpain as pure, honorable, and immaculate, sacrificed to denounce injustice, in search of independence, freedom, and dignity.244 this recognition is reflective of the great impact of the body-in-pain in its positive, emancipatory connotation to the post-revolutionary system. by evoking the communality and speaking in the name of the martyrs, the constitutional drafters aimed to legitimize both the new constitution and those who sacrificed their lives to make it possible. the preamble not only anchors the legitimacy of the new constitution in a repudiated past littered with bodies in pain, but also articulates a moral obligation for the people of tunisia to liberate others who are suffering from oppression. 245 the first paragraph of the 239 id. 240 id. 241 see 1959 tunisia const. pmbl. (“we, the representatives of the tunisian people, meeting as members of the constituent national assembly, proclaim the will of this people, who freed themselves from foreign domination thanks to their strong cohesion and their fight against tyranny, exploitation and regression”) translated in http://confinder.richmond.edu/admin/docs/tunisiaconstitution.pdf. ) 242 of 2014 (tunis.), translated in [constitution] دستور تونس https://www.constituteproject.org/constitution/tunisia_2014.pdf; تونس دستور [constitution] of 1959 (tunis.), translated in http://confinder.richmond.edu/admin/docs/tunisiaconstitution.pdf. 243 id. 244 see 1959 tunisia const. art. iv. (establishing the motto of the tunisian republic as “freedom, order and justice.”). see also 2014 tunisia const. art. iv (modifying the phrase to “freedom, dignity justice, order.”). 245 see 2014 tunisia const. pmbl. (“[i]n cooperation with the peoples of the world; supporting the oppressed everywhere and the people’s right to self-determination, and just liberation movements at the forefront of which is the palestinian liberation movement; and standing against all forms of occupation and racism”). 2016 columbia journal of race and law 167 constitution gives agency to the anonymous corporality, all those who advanced their most precious possession, their lives, “over the course of generations” to achieve change and succeed in breaking with the past.246 the constitution establishes a new relationship between the state and the people. it declares the “independence” of the state where the people of tunisia draw their own roadmap for their country. the preamble articulates the aspirations of the tunisians to have “a participatory, democratic, republican system, in the framework of a civil state founded on the law and on the sovereignty of the people, exercised through the peaceful alternation of power through free elections.”247 it outlines the main features of the post-revolutionary political system, which is “founded on the principle of the separation and balance of powers, which guarantees the freedom of association in conformity with the principles of pluralism,” as well as an administrative system that is based on notions of impartiality, good governance, and a judicial system “that guarantees respect for human rights and freedoms, independence of the judiciary, equality of rights and duties between all citizens, male and female, and equality between all regions.” the new constitution weaves the legacy of the body-in-pain into the body of law. to be sure, the promises of the new constitution remain to be realized. yet what took place in tunisia before, during, and after the revolution was a truly remarkable form of a change that was dialectic in nature. the failures of law under the ben ali regime gave way to a revolutionary burning body that mobilized collective resistance to the state’s tyranny in ways that supplanted the failures of law. in synthetic fashion, the corporeal political body finally resolved itself in a constitution that reinstalled law as the primary vehicle through which politics would be channeled and articulated. thus we witness a dialectic: from law’s failure emerged its opposite, a corporal form of political action, which in turn resolved synthetically into the rebirth of law.248 vi. conclusion under certain conditions of state injustice, authoritarian powers become impervious to legal critiques of their abuse of power. when governments are unresponsive to calls for change and when citizens’ rights and demands are persistently neglected or ignored altogether, the potential of human rights based legal norms to challenge governmental power is limited. domestic, national, and international legal claims are rendered ineffective tools for reform, and an overall state of stasis, collective frustration and desperation prevails. the failure of human rights based arguments creates an opportunity for “political” action by unrecognized “bodies-in-pain.” in such a context, extralegal acts prove more powerful than law in effecting change. the destruction of the body as a political act is one example of a radical, violent method of expressing oppression and struggle. the phenomenon of individual self-destruction narrates the story of thousands of pained bodies. it offers a platform for bodies-in-pain to communicate their struggle; it is a method by which they can transfer collective pain from internal, sublimated spaces to the public sphere and through which they shatter boundaries and reconstruct their worlds. bouazizi’s act of self-immolation was unprecedented in the arab world, and it was a shocking act of political resistance. although the dramatic act of self-destruction was in theory both religiously and culturally unacceptable, it resonated with the experience of others and their yearning to express themselves, thereby 246 id. 247 id. 248 chamundeeswari kuppuswamy, the international legal governance of the human genome 111–15 (2009). 168 the power of the body vol. 6:2 stimulating thousands of other bodies to act as catalysts for change. bouazizi’s act was able to spur others to demand political change where other movements had been unable to do so for generations. such corporeal actions can be characterized as individual acts of defiance that may not necessarily intend to spark social change, but may do so if they feed into, or manifest, an existing dynamic of widespread social frustration. in the particular case of tunisia, the corporeal logic of the body-in-pain manifested the limits of the normative human rights discourse—rooted in the language of human rights. by stepping outside the body of the law, the human body succeeded in challenging state power, created a momentum of emancipation, renegotiated its social contract, and engaged in the making of law. by returning to the language of the law, the body-in-pain was repositioned as an empowered body, which spoke the language of change on behalf of the collective. through a dialectic process the body evolved from the geography of pain to the geography of law, through which the body of the law embodied the body-in-pain as a means to eliminate human suffering and fulfill the collective’s aspirations. socioeconomic and racial disparities in public special education: alleviating decades of unequal enforcement of the individuals with disabilities education act in new york city by nicholas gumas∗ after a long history of neglecting children with special needs, congress enacted the individuals with disabilities education act (idea) to grant every child with a qualifying disability the right to a free and appropriate public education. to ensure local compliance, the idea created a private right of action through which parents may sue their school district for failing to offer an adequate education for their child. if successful, these parents, may then send their child to a private school at the expense of their local government. private enforcement of the idea has helped equalize educational opportunities for wealthy children whose parents can afford to commit to the financial, emotional, and physical costs of suing the government, but children of less affluent families who cannot afford to make similar commitments are often left behind when a school district fails to adhere to the idea’s mandate. as a result, large special educational disparities exist in segregated school districts between wealthy, predominantly white families and less affluent, predominantly non-white families. state and local governments have mostly limited their efforts to fully achieve the idea’s goal by implementing voucher programs, which allow only a handful of low-income ∗ j.d. candidate 2018, columbia law school; b.a. 2015, the george washington university. the author would like to thank professor michael rebell for advising him during the writing and editing process, his family for supporting him throughout law school, and staff of the columbia journal of race and law for their editing assistance and contributions. no. 4:398] socioeconomic and racial disparities 399 children to enjoy the educational opportunities afforded to their wealthier peers. under mayor bill de blasio, new york city took a different approach and began settling most idea claims to effectively lower the procedural barrier for parents. much like vouchers, however, de blasio’s policy fails to address the underlying issue: the idea’s reliance on private enforcement will continue to fail those who historically have been deliberately excluded from the full social and economic benefits of white citizenship. state and local governments must go beyond tinkering with the accessibility of the private enforcement mechanism and instead invest financial resources to equalize educational opportunity through public enforcement of the idea. this note assesses potential state and local policy reforms to secure expanded special education opportunity and discusses how new york city can begin to effectively lead in idea public enforcement. i. introduction ................................................................... 400 ii. overview of the individuals with disabilities education act ....................................................................................... 403 a. legislative history and judicial scrutiny of the idea .................................................................................... 403 b. idea procedural requirements: private enforcement .................................................................................... 408 1. identifying disability ............................................ 409 2. enforcing idea rights .......................................... 410 iii. differing responses to idea litigation in new york city ....................................................................................... 412 a. disparities in special education .............................. 413 1. special education as a means of segregation ...... 413 2. educational disparities in new york city public schools .......................................................................... 417 400 columbia journal of race and law [vol. 8:2 b. inequalities of private enforcement use and education quality ............................................................ 421 1. attending the cse meeting .................................. 423 2. lack of institutional knowledge ........................... 423 3. inability to assess the adequacy of public school placement ..................................................................... 425 4. time and financial demands ............................... 426 c. new york city mayoral responses to tuition reimbursement claims ................................................... 427 iv. securing quality special education for each new york city child ............................................................................. 431 a. vouchers .................................................................... 432 1. a brief explanation of vouchers and school choice . ................................................................................ 432 2. state special education voucher programs ........ 436 b. publicly funded special education attorneys ........ 440 c. public enforcement of the idea .............................. 445 1. the need for public enforcement ......................... 445 2. public enforcement in new york city through the public advocate ............................................................ 447 v. conclusion .................................................................... 452 i. introduction the controversies and ultimate outcome of the 2016 presidential election will provide more than enough material for historians to document what our country endured over the last two years. what will probably not make the historical accounts of the presidential campaign, however, is how candidate hillary clinton elevated disability rights to a position of visibility the issue has not enjoyed in decades. during her speech accepting the democratic party’s no. 4:398] socioeconomic and racial disparities 401 nomination for president, secretary clinton outlined her early career, during which she first became involved in disability activism: i went to work for the children’s defense fund, going door to door in new bedford, massachusetts on behalf of children with disabilities who were denied the chance to go to school. i remember meeting a young girl in a wheelchair on the small back porch of her house. she told me how badly she wanted to go to school. it just didn’t seem possible in those days … our work helped convince congress to ensure access to education for all students with disabilities. it’s a big idea, isn’t it? every kid with a disability has the right to go to school.1 secretary clinton was referring to the individuals with disabilities education act (idea), which grants every child with a qualifying disability the right to a free and appropriate public education. the anecdote that clinton shared was not an uncommon occurrence in the united states prior to the act’s implementation. to tackle the historic exclusion of children with disabilities from public schools, the idea established a collaborative framework for school districts and parents to work together to craft individualized education plans outlining the particular needs of a given child with a qualifying disability. that plan determines which public school within the district can accommodate the child’s specific needs. if the right to a free and appropriate public education granted by the idea is not adequately provided to a child with a qualifying disability, parents may file a due process complaint and, after exhausting available state 1damon winter, transcript: hillary clinton’s speech at the democratic convention, n.y. times (july 28, 2016), https://www.nytimes.com/2016/07/29/us/politics/hillary-clinton-dnctranscript.html? [https://perma.cc/8jvy-mwv3]. 402 columbia journal of race and law [vol. 8:2 administrative remedies, they may choose to sue their local school district for the cost to place their child in an appropriate private school instead of the public school system. this mechanism for parental enforcement of the idea, while well intentioned, has resulted in socioeconomic and racial disparities in the access to quality special education. wealthy white families initiate such complaints, and in turn ensure better educational opportunities for their children, more frequently than non-white or non-wealthy parents. as a result, school districts are more responsive to the families that can afford the risk of pursuing such legal action, creating a socioeconomic and racial disparity in special education services. this problem is particularly pronounced in new york city. with roughly one million students, new york city runs the largest school system in the united states. unfortunately, it is also one of the most racially segregated.2 new york’s response to tuition reimbursement claims under the idea has changed drastically between the administrations of former mayor michael bloomberg and current mayor bill de blasio, with—as a general rule—the former in favor of litigating such claims against the city and the later in favor of settling them. this note will examine whether the new policy helps further the overall mission of the idea to provide quality public special education to children with a qualifying disability, and consider alternative local policy reforms that may better achieve the act’s goal. part i summarizes congressional action to provide students with disabilities access to public special education, discusses how federal law has evolved and how the courts have clarified (and sometimes complicated) the scope of the law, and outlines how parents can secure and challenge special education placement through the idea’s procedural safeguards. part ii discusses how idea safeguards are 2 see the civil rights project, executive summary new york state’s extreme school segregation (2014), https://www.civilrightsproject.ucla.edu/research/k-12education/integration-and-diversity/ny-norflet-reportplaceholder/es_ny_crp_031014.pdf. no. 4:398] socioeconomic and racial disparities 403 disproportionately burdensome for low-income families, summarizes racial segregation in the american public special education system, and explains mayoral policy changes related to procedural safeguards in the city. part iii assesses various policy reforms for strengthening the idea and highlights reforms that can be achieved within local government, as opposed to reforms that would require congressional or federal agency action. part iii also discusses the merits and drawbacks of three popular reform suggestions: voucher programs, state-funded legal assistance, and public enforcement of the idea. ii. overview of the individuals with disabilities education act this part summarizes congressional action to provide students with disabilities access to public special education and will include a discussion on how federal law has evolved and how the courts have clarified (and sometimes complicated) the scope of the law. an outline of how parents can go about securing and challenging special education placement through the idea’s procedural safeguards will follow that overview. a. legislative history and judicial scrutiny of the idea prior to congressional action addressing educational access for children with disabilities, most disabled children “were either totally excluded from schools or sitting idly in regular classrooms awaiting the time when they were old enough to drop out.”3 middle-class white parents organized in opposition to this exclusion, demanding that their disabled children have the same educational access as their nondisabled peers.4 non-white families joined the movement, 3 h. r. rep. no. 94-332, at 2 (1975). 4 martin a. kotler, the individuals with disabilities education act: a parent's perspective and proposal for change, 27 u. mich. j.l. reform 331, 362 (1994). 404 columbia journal of race and law [vol. 8:2 although many of their concerns focused on the use of special education as a means of segregating non-white students from regular public education classrooms.5 by the early 1970s, special education advocates won important legal battles in pennsylvania and washington, d.c. that helped legitimize their demands.6 congress passed the education for all handicapped children act in 1975, later renamed in 1990 as the idea, to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”7 states are primarily responsible for carrying out this mandate; as a condition of receiving federal education funding, states must devise and implement a plan to achieve free access for all students with disabilities as defined by the statute to a free and appropriate public special education.8 to qualify for the idea, a child must have a statutorily recognized disability that requires special educational and related services. 9 disability is broadly defined to include a range of physical and mental disabilities, such as learning disabilities, hearing impairments, emotional disabilities, or autism.10 the contours of a free and appropriate public education (fape) that a qualifying child has a statutory right to receive is determined by that child’s individualized education program (iep), a written statement outlining the services that the child requires and 5 id. 6 see generally mills v. bd. of educ., 348 f. supp. 866 (d.d.c. 1972) (in the same year, the u.s. district court for the district of columbia held that denying children with disabilities public education violates the due process clause) and pennsylvania ass’n, ret’d child. v. commonwealth of pennsylvania., 343 f. supp. 279 (e.d. pa. 1972) (in 1972, the u.s. district court for the eastern district of pennsylvania approved a settlement agreement that barred public schools from excluding children with mental disabilities). 7 20 u.s.c. § 1400(d)(1)(a) (2012). 8 20 u.s.c. § 1412(a)(1)(a); § 1413 (2012). 9 20 u.s.c. § 1401(3)(a) (2012). 10 id. no. 4:398] socioeconomic and racial disparities 405 specifying a local public school that will be tasked with providing those services to the child over the following academic year.11 every child’s iep is unique to that child’s specific needs. the idea’s ambiguous definition of what constitutes a fape, and the dispute whether a specific iep has satisfied that standard, is responsible for much of the litigation surrounding the statute. the supreme court first attempted to clarify this ambiguity in the 1982 rowley decision, in which the court held that the right to a fape is satisfied when certain procedural and substantive requirements are met. 12 procedural requirements consist of the step-by-step process for developing an iep that the statute outlines, such as who must be present at the meeting to draft the iep and the timeline for finalizing the document.13 unlike the procedural requirements, which are explicitly rooted in the statutory text, substantive requirements are created by judicial interpretation of congress’ intent when passing the idea. to meet such requirements, an iep must simply “confer some educational benefit” to the child in the least restrictive environment. 14 put another way, the iep must be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”15 while the supreme court has “specifically rejected the contention that the ‘appropriate education’ mandated by [the] idea requires states to ‘maximize the potential of handicapped children,’” much ambiguity remains about how to determine what satisfies the “some educational benefit” standard.16 some circuits interpret the standard to mean that the school must provide a benefit that “merely [be] ‘more than de minimis.’”17 other circuits apply a higher standard, 11 § 1401(9)(d). 12 bd. of educ. v. rowley, 458 u.s. 176, 188 (1982). 13 20 u.s.c. § 1415 (2012). 14 rowley, 458 u.s. at 102. 15 id. 16 walczak v. fla. union free sch. dist., 142 f.3d 119, 130 (2d cir. 1998). 17 endrew f. v. douglas cty. sch. dist. re-1, 798 f.3d 1329, 1338-39 (10th cir. 2015) (quoting thompson r2-j sch. dist. v. luke p., 540 f.3d 1143, 1149 (10th cir. 2008)). 406 columbia journal of race and law [vol. 8:2 requiring that the school district show that the placement will result in a “meaningful educational benefit.” 18 the supreme court resolved this split recently by rejecting the tenth circuit’s standard as inadequate.19 it appears that students in new york city are still subject to the “meaningful educational [benefit]” standard, which the second circuit adopted in 1998.20 for the purposes of this note, it is important to understand that “no public actor is tasked with reviewing on its own initiative the substance of individual children's ieps.” 21 the responsibility instead falls squarely on the parent, who can ensure compliance only through the private enforcement mechanism outlined in the section b of this part. 22 the statute provides that parents who are unsatisfied with a local school district’s compliance with their child’s iep may, among other options like requesting a new iep or public school placement, take their child out of the assigned public school and enroll the child in a private institution. the parent may then seek tuition reimbursement from the school district. as parents began to take advantage of their idea due process rights, the supreme court issued a few decisions clarifying the parameters of private enforcement. in the 1985 burlington decision, the court held that if a parent can demonstrate that a school district’s placement is inappropriate (that is, the school did not satisfy the 18 see, e.g., deal v. hamilton cty. bd. of educ., 392 f.3d 840, 862 (6th cir. 2004); adam j. ex rel. robert j. v. keller indep. sch. dist., 328 f.3d 804, 808-09 (5th cir. 2003); polk v. cent. susquehanna intermediate unit 16, 853 f.2d 171, 182 (3d cir. 1988). 19 see endrew f. v. douglas cnty. sch. dist. re-1, 137 s. ct. 988 (2017) (holding that the tenth circuit’s de minimis standard produces a result “tantamount to sitting idly . . . awaiting the time when they were old enough to drop out.”) (internal citations omitted). 20 walczak, 142 f.3d at 133. 21 eloise pasachoff, special education, poverty, and the limits of private enforcement, 86 notre dame l. rev. 1413, 1422 (2011). 22 20 u.s.c. § 1415(f) (2012); see also joseph tulman, are there too many due process cases? an examination of jurisdictions with relatively high rates of special education hearings, 18 udc-dcsl l. rev. 249, 250 (2015). no. 4:398] socioeconomic and racial disparities 407 appropriate education standard), and show that their alternative private school placement is appropriate, that parent may recover the costs of the private school tuition from the government.23 the rationale is that a child has a statutory right to a fape, so if the school district fails to provide such a right, it must at least help parents finance the means to secure that right through a private school. a few years later, the court clarified in the carter decision that a parent may seek tuition reimbursement for private school even if the private school is not on a state-approved list of institutions to provide special education services. 24 this decision has allowed parents more discretion in finding an alternative placement to an inadequate public school. after the court held in smith that the idea did not allow parents who were successful in their tuition reimbursement claims to collect attorneys’ fees, congress amended the act in 1986 to reverse the court’s decision and explicitly permit the recovery of attorneys’ fees for parents who are successful in enforcing their child’s idea rights.25 while members of congress found that “substantial gains had been made in the area of special education” by the late 1990s, they determined that further action was necessary “to guarantee children with disabilities adequate access to appropriate services.” 26 congress amended the idea in 1997 “to place greater emphasis on improving student performance and [ensure] that children with disabilities receive a quality public education.” 27 these amendments required states to offer a voluntary mediation session for parents who seek an administrative hearing to enforce their due process rights. 28 by placing a “new emphasis on the importance of mediation as an alternative method of resolving special education conflicts,” congress hoped to slow the growth of idea litigation and foster 23 sch. comm. of burlington v. dep’t of educ., 471 u.s. 359, 369 (1985). 24 florence cty. sch. dist. four v. carter, 510 u.s. 7, 14 (1993). 25 handicapped children’s protection act of 1986, pub. l. no. 99-372; smith v. robinson, 468 u.s. 992, 1021 (1984). 26 see forest grove sch. dist. v. t.a., 557 u.s. 230 (2009). 27 s. rep. no. 105-17, at 3 (1997) 28 § 1415(e). 408 columbia journal of race and law [vol. 8:2 greater collaboration between parents and school districts.29 in 2004, congress again amended the idea to explicitly codify the right to tuition reimbursement and, absent a waiver, mandate the participation in a resolution session after a parent files a due process complaint.30 the court has issued three decisions related to private enforcement since the 2004 idea amendments. in arlington central school district, the court held that while the idea allows parents who are successful in their claims to collect attorney fees, the act does not allow parents to collect the costs of experts they may decide to use in the litigation to illustrate the adequacy of a school placement.31 then in winkelman, the court clarified that a parent may bring a tuition reimbursement claim pro se.32 and in forest grove, clarifying ambiguity from the 1997 amendments, the court held that a parent is entitled to reimbursement for a non-public placement even if their child did not previously receive special education services in a public school.33 b. idea procedural requirements: private enforcement parental consent and involvement is at the heart of the idea, which outlines a rigid procedural framework to govern a child’s access to special education. these safeguards exist “to insure the full participation of the parents and proper resolution of substantive disagreements.” 34 states have the discretion to establish additional procedures so long as they do not conflict with the idea. 35 given that the focus of this note is special 29 see steve baldridge & david doty, mediation under the new idea: room to be reasonable, at 1 (1998). 3020 u.s.c. § 1412(a)(10)(c)(ii); § 1415(f)(1)(b) (2012). 31 arlington cent. sch. dist. bd. of educ. v. murphy, 548 u.s. 291, 304 (2006). 32 winkelman v. parma city sch. dist., 550 u.s. 516, 535 (2007). 33 forest grove sch. dist. v. t. a., 557 u.s. 230, 246-47 (2009). 34 sch. comm. of burlington, 471 u.s. at 368. 35 see § 1415(a). no. 4:398] socioeconomic and racial disparities 409 education access in new york city, this section will outline the due process requirements in new york state. 1. identifying disability if a school district suspects that a child may have a qualifying idea disability, it must first obtain the consent of the parent before evaluating the child.36 once the parent provides their consent, or requests an evaluation of their child through their own initiative, the child is evaluated (without financial cost to the parent) in a manner that includes a physical exam, psychological exam, and observations of the student’s current academic performance and social behavior.37 if the evaluation determines that the child has any of the qualifying disabilities outlined by the statute, and thus has a right to special education under the idea, the child is entitled to an iep. 38 a committee on special education (cse) develops a child’s iep.39 the cse consists of, at minimum, the child’s parent, regular education teacher, a special education teacher, and a school psychologist. 40 a representative from the school district “who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district” must also be present and serves as chairperson for the cse.41 when scheduling cse meetings, the chairperson must take great care to ensure that the parent is able to attend and participate.42 the cse must produce an iep that includes an assessment of the child’s current level of performance, specific disability classification, measurable academic and functional goals, instructional benchmarks for evaluating such goals, and required educational and related 36 n.y. comp. codes r. & regs. tit. 8, § 200.4(a) (2017). 37 n.y. comp. codes r. & regs. tit. 8, § 200.4(b) (2017). 38 § 200.4(d)(2). 39 n.y. comp. codes r. & regs. tit. 8, § 200.3. 40 § 200.3(a)(1). 41 § 200.3(a)(1)(v). 42 n.y. comp. codes r. & regs. tit. 8, § 200.5(d). 410 columbia journal of race and law [vol. 8:2 services.43 this process is repeated each academic year as a child’s iep serves as a governing document for that child’s educational needs, and the iep may change as the child makes progress from year to year.44 in order to comply with the substantive requirements of a fape, a child’s educational placement must also be in the “least restrictive environment” (lre). 45 the lre requirement indicates a strong preference for educating a child in a mixed public school classroom instead of segregating that student into a special education-only classroom. 46 states that do not comply with the lre provision are in danger of losing federal funding.47 2. enforcing idea rights parents unsatisfied with the educational services provided to their child have available to them procedural safeguards to address such concerns and ensure idea compliance. 48 a parent has two years from the date the parent knew, or should have known, about the basis of their concern to file a due process complaint with the state or local educational agency. 49 this complaint must include a description of the problem the child is facing in the assigned public school and a proposed solution, which in new york state, is usually a reimbursement request for the tuition at a private school that the parent believes will more adequately serve their child’s educational needs. 50 within the same 43 § 200.4(d)(2). 44 § 200.4(f). 45 § 200.4(d)(4)(ii). 46 20 u.s.c. § 1412(a)(5)(a) (2012); see also t.m. v. cornwall cent. sch. dist., 752 f.3d 145, 161 (2d cir. 2014) (citing walczak, 142 f.3d at 122) (noting lre “requirement ‘expresses a strong preference for children with disabilities to be educated, to the maximum extent appropriate, together with their non-disabled peers.’”) 47 § 1412(a)(5)(b) (2012). 48 see § 1415 (2012). 49 n.y. educ. law § 4404 (1) (consol. 2017); 34 c.f.r. § 300.507(a)(2). 50 § 1415(a)(7); see also gilbert mcmahon, nys special education impartial hearing outcomes, http://www.specialedlawadvocacy.com/nys%20special%20education%20i no. 4:398] socioeconomic and racial disparities 411 timeframe, the parent must also request an impartial hearing, in which an impartial hearing officer (iho) will review the parents’ complaint, and the state’s response to the complaint, in order to render a decision.51 the iho cannot be an employee of the state or local educational agency and is limited in their decision-making capacity to address only the issues raised in the initial complaint, unless the parties otherwise agree.52 the iho’s determination of whether a child received a fape is usually made on substantive grounds, including whether a child’s placement is in the least restrictive environment or satisfies the “meaningful education benefit” standard.53 an iho can only find that a child did not receive a fape on procedural grounds if such “inadequacies (i) impeded the child’s right to a fape; (ii) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a fape to the parent’s child; or (iii) caused a deprivation of educational benefit.”54 these issues arise in the formulation of the child’s iep. the agency or parent may appeal the iho’s decision to a state review officer (sro). 55 , new york’s two-tiered system is a rarity that adds an extra procedural step for the parent; as of 2010, forty states and washington, d.c have only one-tiered systems for idea due process hearings. 56 if either party is dissatisfied with the sro decision, the party may appeal to the new york supreme court or the relevant united states federal district court. 57 these procedural safeguards are included in an annual notice sent to parents mpartial%20hearing%20outcomes.pdf (indicating that over half of idea complaints in new york state relate to tuition reimbursement claims). 51 34 c.f.r. § 300.511 (2002). 52 id.; § 200.5(j)(4). 53 34 c.f.r. § 300.513(a) (2002); see also walczak, 142 f.3d at 130. 54 § 300.513(a)(2). 55 n.y. educ. law § 4404(2) (consol. 2017). 56 perry a. zirkel & gina scala, due process hearing systems under the idea: a state-by-state survey, 21 j. disability pol’y stud. 3, 5 (2010). 57 educ. § 4404(3). 412 columbia journal of race and law [vol. 8:2 in their native language in an attempt to inform parents of the rights the idea affords them and their children.58 congress provided additional means of redress for parents outside of the otherwise linear due process system. parents may decide to pursue mediation instead of an impartial hearing. 59 mediation is voluntary and if an agreement is reached, it is legally binding in state and federal district courts. 60 congress created the mediation option in 1997, intending for it to “become the norm for resolving special education disputes” 61 and reduce the financial burden of pursuing due process under the idea.62 apart from mediation, within fifteen days of receiving the due process complaint, the district must offer the opportunity to arrange a resolution session.63 parents may elect to waive the requirement, 64 but if they proceed and reach an agreement during a resolution session, the agreement is similarly binding in state and federal court.65 iii. differing responses to idea litigation in new york city idea safeguards disproportionately burden lowincome families. in new york city, the majority of these families are non-white. this part will summarize racial segregation in the american public special education system 58 n.y. comp. codes r. & regs. tit. 8, § 200.5(f) (2017). 59 § 200.5(h). 60 id. 61 s. rep. no. 105-17, at 26. in new york state, parents rarely use mediation. the most recent data provided by the u.s. department of education for 2014-2015 indicates that of the 5,170 due process complaints filed, only twenty resulted in a mediation session. see u.s. dep’t of educ., idea section 618 data products: state level data files, https://www2.ed.gov/programs/osepidea/618-data/state-level-datafiles/index.html (“dispute resolution” tab under “part b”) (last visited apr. 12, 2018). 62 s. rep. no. 104-275, at 18 (1996). 63 § 200.5(j)(2). 64 § 1415(f)(1)(b)(i)(iv). 65 § 200.5(j)(2) (2017). no. 4:398] socioeconomic and racial disparities 413 and explain mayoral policy changes related to procedural safeguards in the city. a. disparities in special education while the u.s. department of education releases data on the state level, these aggregate numbers may mask inequalities on the local level. local data is not published, and the aggregate numbers at the state level are not broken down by race for every age group or socioeconomic status for any age group.66 given the difficulty of collecting reliable local data, much of the existing literature relies on a patchwork of data obtained through foil requests and anecdotes. 67 new york city recently began releasing annual reports on the special education student population, but only two have been published.68 1. special education as a means of segregation there are roughly six million children in the united states who receive special educational services under the idea.69 about two-thirds of these students are from families that make less than $50,000 per year, including the two million idea students who live below the poverty line. 70 66 see u.s. dep’t of educ., supra note 61. 67 pasachoff, supra note 21, at 1426. 68 see n.y.c. dep’t of educ., local law 27 of 2015 annual report on special education school year 2014–2015 (2016), http://schools.nyc.gov/nr/rdonlyres/6035782c-f95d-4224-8372f2b1f7e9a226/0/locallaw27of20152292016final.pdf; n.y.c. dep’t of educ., local law 27 of 2015 annual report on special education school year 2015–2016 (2016), http://schools.nyc.gov/nr/rdonlyres/9b4fd479-461d-4120-8185a5ec8b548afa/0/locallaw27of2015201516annualreportonspecialeduc ation.pdf. 69 u.s. dep’t of educ., supra note 611 (see “child count and educational environments” tab under “part b”). 70 elisa hyman, keeping the needs of students with disabilities on the agenda: current issues in special education advocacy: how idea fails families without means: causes and corrections from the frontlines of 414 columbia journal of race and law [vol. 8:2 while the focus of this note is on low-income students of color who are correctly identified as requiring special education and challenges their parents face in enforcing their federal civil rights, any discussion on race and special education must first address the history of discrimination in the special education system: since the landmark decision of brown v. board of education mandated desegregation in public schools, african-american students have been re-segregated within public schools through their over-placement in special education classes. the enforcement of brown coincided with schools classifying african-american students as disabled and placing them in special education classes as a pretense for discrimination. 71 although scholars began to recognize the problem, 72 and federal courts began responding as early as the late 1960s,73 congress did not formally act until the 1997 idea amendments, in which congress mandated that the national research council study minority representation in special education and acknowledged “that ‘more minority children continue to be served in special education than would be expected from the percentage of minority students in the general school population.’”74 this issue has also reached the attention of the u.s. department of education, under which special education lawyering, 20 am. u.j. gender soc. pol’y & l. 107, 112-13 (2011). 71 robert a. garda, jr., the new idea: shifting educational paradigms to achieve racial equality in special education, 56 ala. l. rev. 1071, 1072 (2005). 72 lloyd m. dunn, special education for the mildly retarded--is much of it justifiable?, 35 except. child. 5 (1968). 73 in 1968, the u.s. district court for the district of columbia held that disproportionate representation of african american students in special education constituted an equal protection violation. hobson v. hansen, 269 f. supp. 401, 498 (d.d.c. 1967). 74 garda, jr., supra note 71, at 1076-77 (quoting pub. l. no. 105-17, § 601(c)(8)(b) (1997)). no. 4:398] socioeconomic and racial disparities 415 the office of special education programs (osep) described minority overrepresentation in the late 1990s as a “national problem” of “high priority” and acknowledged “placement in special education classes may be a form of discrimination.”75 what is particularly troubling about african american overrepresentation in special education is that it occurs most frequently in categories that require a subjective determination of disability, suggesting that the issue is one of individual and systematic bias, and not of legitimate health issues facing the community. 76 african american children are more than twice as likely to be identified as mentally retarded as are white children,77 more likely to be identified as having a severe emotional disturbance,78 and over twice as likely to be identified as having a broad development delay. 79 the consequences of overrepresentation are harmful to these students: african american children are concentrated in low-income school districts, where they usually receive lower-quality special education in large class sizes and are more likely to be placed in an overly restrictive environment that stunts their educational growth.80 critically, african american parents – due to a variety of factors discussed in section b of this part – are also less likely to be successful advocates for their children through the idea due process procedures, and as a result, african american students placed in special education do not receive benefits equivalent to their white peers.81 75 jane burnette, reducing the disproportionate representation of minority students in special education eric/osep digest # e566 (mar. 1998), http://files.eric.ed.gov/fulltext/ed417501.pdf. 76 daniel losen & kevin g. welner, disabling discrimination in our public schools: comprehensive legal challenges to inappropriate and inadequate special education services for minority children, 36 harv. c.r.-c.l. l. rev. 407, 440 (2001). 77 nat’l research council comm. on minority representation in special educ., minority students in special and gifted education, at 44 (2002), https://www.nap.edu/read/10128/chapter/1. 78 id. at 50. 79 id. at 60-64. 80 losen & welner, supra note 76, at 427. 81 garda, jr., supra note 71, at 1084. 416 columbia journal of race and law [vol. 8:2 while “there is no correlation between race and disability,” “there is a strong correlation between race and poverty, and poverty and disability.”82 still, “distortions in the representation of racial groups cannot be explained simply because minority groups are disproportionately represented among the poor.” 83 it is hard to explain the racial disparity in special education without discussing the history of racism in this country. evidence of this is illustrated by the fact that “five of the seven states with the highest overrepresentation of african americans labeled ‘mentally retarded’ are in the south (mississippi, south carolina, north carolina, florida, and alabama) where intentional racial discrimination in education was once required by law.”84 and so even if discrimination in special education is waning, the residual effects are still at play. cultural misunderstandings between white teachers and their african american students, for example, “may result in those teachers perceiving students to be oppositional or incapable of understanding what is required of them.”85 various studies have confirmed “teachers view the exact same behavior by white and black students differently” resulting in “a referral for special education assessment, and almost certainly placement, to remove the culturally different – or ‘disruptive’ – behavior from the classroom.”86 as the research indicates, “teachers tend to more frequently refer students from backgrounds different than their own”, 87 resulting in white teachers referring african american students to special education at a higher 82 garda, jr., supra note 71, at 1086 (citing h.r. rep. no. 108-77, at 99 (2003)). 83 losen & welner, supra note 76, at 415. 84 id. at 414; see also nat’l research council comm. on minority representation in special educ., supra note 77, at 63 (finding “clearly there is overrepresentation for these two minorities in the ld category in some states”). 85 theresa glennon, race, education, and the construction of a disabled class, 1995 wis. l. rev. 1237, 1320 (1995). 86 garda, jr., supra note 71, at 1091-92. 87 patrick linehan, guarding the dumping ground: equal protection, title vii and justifying the use of race in the hiring of special educators, 2001 byu educ. & l. j. 179, 190 (2001). no. 4:398] socioeconomic and racial disparities 417 rate than do their non-white colleagues. and so, while many of the problems in special education correlate with socioeconomic status, racism has made those problems worse for students of color. 2. educational disparities in new york city public schools new york state has one of the most racially segregated public school system in the country.88 in new york city, as of 2014, 19 out of the 32 community school districts had a student body of which less than 10% were white.89 of the city’s charter schools, 73% have less than 1% white enrollment and 90% have less than 10% white enrollment.90 despite a reputation of inclusivity and progressivism, the city, along with most of the american northeast, has a complicated history with integration. prior to the start of the school integration movement in 1954, the most recent report on issues facing minority students in city public schools was published in 1915.91 the city board of education took its first concrete steps to initiate integration in 1954 by issuing a strong statement pledging to eliminate de facto segregation in public schools and creating positions within the board responsible for carrying out that mission. 92 a study published in the fall of 1955 illustrated that roughly eight percent of city public schools were 90 percent or more nonwhite, and compared to schools that were over 90 percent 88 the civil rights project, supra note 2; see also, niraj chokshi, the most segregated schools may not be in the states you’d expect, wash. post (may 15, 2014), https://www.washingtonpost.com/blogs/govbeat/wp/2014/05/15/the-mostsegregated-schools-may-not-be-in-the-states-youd-expect2/?utm_term=.84fc1dabff70 [https://perma.cc/97va-nnaz]. 89 the civil rights project, supra note 2. 90 id. 91 diane ravitch, a history of the new york city public schools, 251 (johns hopkins univ. press, 3rd ed. 2000); see also frances blascoer, colored school children in new york, new york: public education association (1915). 92 ravitch, supra note 91, at 252-53. 418 columbia journal of race and law [vol. 8:2 white, the majority non-white schools were older, more poorly maintained, and staffed with less experienced teachers. 93 when the board began measures to integrate schools, white parents strongly resisted, including one demonstration in queens that resulted in almost half of the white student body skipping school to protest a new busing policy. 94 parental protests resulted in decentralizing education policymaking authority and halting integration efforts.95 the failure to better integrate students of diverse backgrounds amplifies the problems in the city’s special education system. new york city department of education officials “responsible for idea compliance consistently fail in this basic mission” and the district is “fraught with enormous organizational obstacles to effective and efficient change.”96 the problem is compounded by the fact that disability classification in new york state is higher than the national average: as of 2014, 13% of the american student population have a qualifying disability under the idea, while the number in new york state is 15.7%.97 in new york city, as of 2017, about 25% of the student population have a qualifying idea disability. 98 in addition to the aboveaverage levels of disability classification, new york also makes up a disproportionately large share of idea procedural safeguard activity: due process complaints filed in new york state make up almost one-third of the total due 93 id., at 253. 94 id., at 259. 95 clarence taylor, knocking at our own door: milton a. galamison and the struggle to integrate new york city schools, at 120-23, 157, 180-207 (colum. univ. press 1997). 96 tulman, supra note 22, at 266. 97 identification of children with disabilities, new york (2014), http://www.p12.nysed.gov/specialed/spp/osepdeterminations/ny-accstatedatadisplay-2014.pdf. 98 according to the 2017 preliminary mayor’s management report, out of the 1,134,000 students age 3-21 in new york city, 283,017 receive special education services. this number includes the 31,262 children who receive special education services in pre-school. the city of new york, preliminary mayor’s management report, at 191-92 (february 2017), http://www1.nyc.gov/assets/operations/downloads/pdf/pmmr2017/2017_pm mr.pdf. no. 4:398] socioeconomic and racial disparities 419 process complaints filed in the united states.99 put another way, parents file due process complaints in new york over four times as much as they do nationally. 100 by one estimate, new york city makes up 94.8% of those filed within the state.101 there are several factors that may contribute to new york’s outlier status in idea activity. new york city is engaged in a nearly four decade-long legal battle with a group of parents and non-profit organizations seeking to alleviate the city’s history of neglect towards children with special needs pertaining to their evaluation, transportation, and placement. 102 under a 1982 order from the jose p. litigation, the city must offer a family of a child with special needs a placement in a state-approved nonpublic school at the city’s expense if the city fails to provide a free and appropriate public education placement within sixty days of that child’s referral to special education. 103 in effect, the order operates as a de facto voucher program.104 the city must also pay for the independent evaluation of the child if the city fails to do so within 30 days of referral. 105 in 99 the exact figure is 30.22% for the 2014-2015 school year, during which parents in new york filed 5,170 due process complaints, while the number on the national level was 17,107. u.s. dep’t of educ., supra note 61 (“child count and educational environments” and “dispute resolution” tabs under “part b”). 100 for the 2014-2015 school year, 1.03% of students in new york state filed complaints under the idea (5,170 complaints for the 499,551 students in special education within the state) while only 0.25% of students filed complaints nationally (17,107 complaints for the 6,814,410 students in special education in the entire country). u.s. dep’t of educ., supra note 61 (“child count and educational environments” and “dispute resolution” tabs under “part b”). 101 mcmahon, supra note 50. this statistic is based on data from 2002-2003 school year through the 2009-2010 school year that the author obtained through freedom of information law requests in new york state. 102 for list of relevant stipulations and orders from the litigation over the last 40 years, see advocates for children, jose p. v. mills, http://www.advocatesforchildren.org/litigation/class_actions/jose_p_vs_mill s. 103 jose p. v. ambach, 557 f. supp. 1230, 1241 (e.d.n.y. 1983). 104 unlike new york, several states have formally established state special education voucher programs. these are discussed in part iii of this note. 105 jose p., 557 f. supp. 1230 at 1241. 420 columbia journal of race and law [vol. 8:2 addition to the 1982 order, the city’s “historical refusal to enter into multi-year settlements” is likely another factor contributing to the high levels of idea activity.106 a parent who successfully litigated a tuition reimbursement claim for one year would have to relitigate the issue for the following year, even if their child’s iep had not significantly changed.107 new york’s higher-than-average idea activity is not distributed equally: the educational geographic districts that have the most due process activity are significantly more wealthy and more white than the city as a whole; such districts encompass neighborhoods like the upper east side, the upper west side, the west village, and park slope.108 parents in the city experience great success in pursuing their due process complaints at the initial level with an impartial hearing officer: 72% win the entirety of their complaint while an additional 11% win a partial victory.109 at the second level with the state review officer, however, the city wins 80% of the time.110 parental success at the iho level does not seem to follow from recent congressional reforms as 35% of parents went straight to an impartial 106 tulman, supra note 22, at 270. 107 mayor de blasio ended this practice in 2014, and it will be interesting to observe what effects, if any, this decision will have on the level of idea activity. al baker, de blasio offers easier access to city money for special education, n.y. times (june 24, 2014), http://www.nytimes.com/2014/06/25/nyregion/de-blasio-offers-easieraccess-to-city-money-for-special-education.html?_r=0 [https://perma.cc/g7gz-xebh]. 108 the data from mcmahon, supra note 50 identifies the most active school districts. to match the district number with the corresponding neighborhood, see n.y.c. dep’t of educ., school search, http://schools.nyc.gov/schoolsearch/. to compare data on socioeconomic status and race within city neighborhoods, see emma whitford, interactive maps show racial & socioeconomic segregation of nyc schools, gothamist (dec. 16, 2015), http://gothamist.com/2015/12/16/education_segregation_map.php#photo-1 [https://perma.cc/34hh-2479]. 109 tulman, supra note 22, at 268. 110 geoff decker, advocates say city is agreeing to pay special ed costs less often, chalkbeat (aug. 28, 2013), http://www.chalkbeat.org/posts/ny/2013/08/28/advocates-say-city-isagreeing-to-pay-special-ed-costs-less-often/ [https://perma.cc/c7e2-a9pn]. no. 4:398] socioeconomic and racial disparities 421 hearing because the city failed to schedule a resolution session within the required time, and an additional 41% of parents waived the resolution session.111 the rate at which parents avoid resolution sessions in the city is higher than other jurisdictions, which may be due to the city’s failure to comply with the idea requirement that the district representative in a resolution hearing have settlement authority.112 the rate of parental failure with state review officers illustrates the financial barrier facing parents: in order to be successful in an appeal of a sro decision to the courts, a parent will likely need to hire an attorney and pay upfront retainer fees. b. inequalities of private enforcement use and education quality the increased level of idea activity in new york warrants scrutiny of whether the mechanism is properly working to ensure every child with a qualifying disability has access to a fape as congress desired. there are two main criticisms of the operational reality of the private enforcement system, each reinforcing each other: primarily, only wealthy families can afford, or have the institutional knowledge and personal time to pursue, private enforcement of the idea, and their success in doing so drains resources out of the public education system from which less affluent, disproportionally non-white, students then receive even lower quality care.113 the notion that tuition reimbursement claims drain public resources is hotly contested. many argue that the reimbursement is nearly analogous to the amount the city would be paying anyway had the child remained in public school or that the resources diverted to private institutions will only motive public schools to be more efficient in their 111 tulman, supra note 22, at 268. 112 id. at 269. 113 pasachoff, supra note 21, at 1419; jennifer rosen valverde, a poor idea: statute of limitations decisions cement second-class remedial scheme for low-income children with disabilities in the third circuit, 41 fordham urb. l.j. 599, 623 (2013). 422 columbia journal of race and law [vol. 8:2 budgeting. 114 even if this is true, the argument fails to address the fixed costs of running a large public education system, or that private schools may pick and choose which services they want to offer while the public system must provide services for a wide range of disabilities, from those that require a minor cost to those that are more expensive.115 regardless of the debate over resources, the layers of bureaucracy that make up the idea procedural safeguards, while designed to empower parents, carry burdens that disproportionately impact low-income parents. academic criticism of the disparities created by the private enforcement system is not new; studies began raising this concern as early as the 1980s.116 in order to understand why disparities exist in the private enforcement system, it may be helpful to walk through the challenges of successfully navigating through the idea’s procedural safeguards and discuss how each of those challenges are more difficult for less affluent parents who, in new york city, are disproportionately non-white.117 114 jay p. greene, the case for special education vouchers, the manhattan inst. (oct. 7, 2009), https://www.manhattaninstitute.org/html/case-special-education-vouchers-2055.html [https://perma.cc/jm95-48kn]. 115 nat’l educ. ass’n, vouchers? no, there are better alternatives (2009), http://www.nea.org/assets/docs/pb07a_vouchers_alternative09.pdf (noting that “[b]ecause school districts are unable to reduce fixed costs such as salaries and benefits for staff, transportation services, maintenance, utilities, and supplies, they do not benefit financially when a few students spread across different grade levels leave a public school for a voucher school. instead, those students take their entire per pupil expenditure with them, leaving the school to fund its programs and staff with fewer public dollars.”); jay p. greene, fixing special education, 82 peabody j. educ. 703, 709-710 (oct. 2007) (noting that in special education, “most administrative expenses are fixed costs that do not increase with every new child. schools need administrators, secretaries, psychologists, speech therapists, and other specialists, whether their special-education caseload is low or high.”). 116 see, e.g., david neal & david l. kirp, the allure of legalization reconsidered: the case of special education, 48 law & contemp. probs. 63 (winter 1985). 117 n.y.c. dep’t of city planning, socioeconomic characteristics by race/hispanic origin and ancestry group, at 15 (2005) no. 4:398] socioeconomic and racial disparities 423 1. attending the cse meeting the contents of an iep strongly influence a child’s educational outcome. it is perhaps the most consequential opportunity for parental involvement under the idea, as the iep will govern where the child goes to school and what services should be provided to that child. but in order to secure a better outcome for their child with a strong iep, parents must first have the scheduling flexibility to attend the cse meetings. unfortunately, instead of reaching out to parents to coordinate a mutually convenient time to schedule a cse meeting, school administrators will “frequently” “send home written notice, often in a child's backpack, that a meeting has been scheduled at a time pre-selected by the school.” 118 law professors involved in special education clinical work note that if the parent is not able to attend, “it is not uncommon for the meeting to be held without his or her participation,” but there does not appear to be formally published data to assess the validity of this claim in new york city.119 still, even if a school administrator does reach out to a parent to schedule a mutually acceptable time, doing so is difficult, particularly for low-income parents who may need to work multiple jobs to financially support themselves and their children, and as a result have inflexible schedules.120 2. lack of institutional knowledge instead of robust dialogues about what is in the best interest of the child between parties with the sufficient information to have such a discussion, as the idea envisions, “conferences have become highly formal, non https://www1.nyc.gov/assets/planning/download/pdf/data-maps/nycpopulation/acs/acs_socio_05_nyc.pdf. 118 yael cannon, michael gregory, & julie waterstone, a solution hiding in plain sight: special education and better outcomes for students with social, emotional, and behavioral challenges, 41 fordham urb. l.j. 403, 452 (2013). 119 id. 120 id. 424 columbia journal of race and law [vol. 8:2 interactive, and replete with educational jargon.”121 if the parent is able to attend the cse meeting, they must have the institutional knowledge necessary to craft a strong iep for their child. part of that responsibility includes being able to identify suboptimal programming when it is offered and push back against it, but many parents lack sufficient training to assess the merits of various options. the informational asymmetry is debilitating for parents. administrators’ frequent participation in this process has allowed them to develop a level of expertise, while parents are usually participating for the first time. 122 given this reality, “parents are often not fully aware of educational options available for their children and therefore have a difficult time forming accurate expectations of schools and teachers.” 123 given that ieps are protected student records under the family educational rights and privacy act (ferpa),124 the services that one child receives is not available to other parents for which to compare their own child’s services, making it “hard for an unknowledgeable parent to determine the universe of services to ask for.”125 here again, socioeconomic status sets a divergent course as “parents are left to call on their own informational networks to determine what services to ask for and when bringing a claim is necessary to enforce their rights effectively.” 126 wealthier parents have broader geographical networks from which they can request information and assistance through this process, while the networks of less affluent parents are generally limited by geography and to other people of lower socioeconomic status who are likely to have less knowledge or expertise on the subject.127 121 kotler, supra note 4, at 364 (internal citation omitted). 122 pasachoff, supra note 21, at 1442. 123 erin phillips, when parents aren’t enough: external advocacy in special education, 117 yale l.j. 1802, 1830 (2008). 124 matter of huseman v. n.y.c. dep’t of educ., no. 30959, slip op. at 1213 (n.y. sup. ct. 2016). 125 pasachoff, supra note 21, at 1437 (2011). 126 id. 127 john field, social capital, at 82-91 (2d ed. 2008). no. 4:398] socioeconomic and racial disparities 425 even if a parent does have the necessary information to be an informed advocate, the cse meeting is an intimidating experience. parents enter a room with unfamiliar experts and bureaucrats, and then must challenge their expertise to secure an outcome that the parent thinks is best. many parents “describe themselves as terrified and inarticulate.” 128 there are also important interpersonal constrains as “parents often feel hindered in challenging the school district’s services due to a fear of injuring their relationships with the educators who are likely to remain a part of their child’s education on a daily basis, whether they win or lose the challenge.”129 3. inability to assess the adequacy of public school placement it is difficult for parents to properly assess if the services that their child is receiving are sufficient to constitute a fape. frequently, parents, to no fault of their own, are “incapable of judging outcomes” of their child’s educational progress. 130 most parents are not trained in special education policy. if a parent has unrealistically high expectations, they may be unable to appreciate the extent to which their child is progressing if the outcomes do not meet the parent’s expectation. 131 conversely, and “[m]ore commonly, parents are too accepting of poor outcomes, tending to praise even poor programming, since they lack the awareness of what constitutes good programming.”132 here, strong informational networks can again assist parents in determining if there is a problem that should be addressed, but as explained above, less affluent families have weaker informational networks on which to rely. 128 phillips, supra note 123, at 1834. 129 elizabeth adamo usman, reality over ideology: a practical view of special needs voucher programs, 42 cap. u. l. rev. 53, 61 (2014). 130 kotler, supra note 4, at 373-74. 131 id. 132 id. 426 columbia journal of race and law [vol. 8:2 4. time and financial demands even if a parent does determine that their child’s public school placement is inadequate, filing a due process complaint to secure a remedy is a time-consuming and expensive endeavor. put simply, lower income “parents of disabled students are much more likely to have difficulty advocating effectively for their children” as “impoverishment forces parents to work more jobs and spend more time outside the home,” leaving less time to navigate through the bureaucratic maze that is the idea due process procedure.133 the financial costs are two-fold: first, there are upfront financial costs in hiring an attorney to litigate a case (as well as the risk of having to pay those costs in full if the parent loses) and any relevant experts a parent may need to testify throughout process. second, if a parent does unilaterally take their child out of the public school system, they must have the funding to pay for the initial deposit for a private school and the financial stability to risk doing so in case their claim for tuition reimbursement fails. this is a significant financial risk as tuition at several new york city private special education schools can exceed $80,000 a year.134 congress and the supreme court have acted to ease the financial burden on parents, but the efforts have had limited practical effect. a parent may recover attorney fees, but only if they are successful in their reimbursement 133 phillips, supra note 123, at 1834-36. 134 in a recent federal case in new york, a parent made a successful tuition reimbursement claim against the city for the expense of a private school that charged an annual $84,900 tuition fee. a ex rel. d.a. v. n.y.c. dep’t of educ., 769 f. supp. 2d 403, 430 (s.d.n.y. 2011). the city argued that the parent could not make such a claim because the parent had only made a nominal contribution to the tuition bill, but the court disagreed, holding that the parent may make a claim for retroactive tuition reimbursement, even if the parent did not yet actually make the payment. this case is significant because it is the first federal court in the city to endorse the legality of tuition reimbursement for private schools, like the one at issue in the case, that seek to provide flexibility for parents in creating payment plans. no. 4:398] socioeconomic and racial disparities 427 claim.135 the cost of hiring experts necessary to effectively make the parent’s case, however, cannot be recovered. 136 further, the scope of attorney fees that are recoverable is limited. parents can collect for services during litigation, but not for attorney services during the cse meetings, during which the crucial formulation of the iep occurs. 137 as a result, families that can afford to hire an attorney for the cse meeting may receive stronger ieps for their children, while parents who cannot do so are without recourse. c. new york city mayoral responses to tuition reimbursement claims prior to the election of bill de blasio as mayor of new york city in 2013, the city government was publicly hostile to tuition reimbursement claims under the idea. harold levy, the chancellor of the city’s board of education during the first several months of mayor michael bloomberg’s tenure, criticized the use of the idea private enforcement mechanism by wealthy parents during his testimony for an april 2002 hearing of the president’s commission on excellence in special education. 138 according to levy, wealthy parents who pursue private enforcement “drained resources that are critically needed” for the public education system, resulting in an inequitable distribution of services; summarizing his dissatisfaction, and perhaps intentionally drawing on racial overtones, levy said, “you cannot give one kid the cadillac and the others the back of the bus.”139 members of the bloomberg administration claim to have “scrutinized requests to weed out families who were 135 arlington cent. sch. dist. bd. of educ. v. murphy, 548 u.s. 291, 304 (2006). 136 id. 137 20 u.s.c. § 1415(i)(3)(d)(ii) (2012). 138 yilu zhao, rich disabled pupils go to private schools at public expense, levy says, n.y. times (april 17, 2002), http://www.nytimes.com/2002/04/17/nyregion/rich-disabled-pupils-go-toprivate-schools-at-public-expense-levy-says.html [https://perma.cc/v2cj7wh3]. 139 id. 428 columbia journal of race and law [vol. 8:2 simply trying to get free private schooling, when public schools could meet their needs.”140 by the end of 2007, the city under bloomberg began “significantly ramping up its effort to challenge cases in which it pays for private school tuition of children with disabilities whose parents say they are ill-served by the public schools.”141 the city department of education enlisted the help of a consulting firm to cut $200 million from the budget, in part by more rigorously defending tuition reimbursement claims. 142 special education advocates argued, “the more combative process has created a scenario in which only parents with means, resources, and knowledge of the system are most prepared to handle a gauntlet of steps.”143 in response to the contention that the city’s reimbursement budget had significantly increased due to a poorly staffed legal team, executive director of advocates for children, kim sweet, said “i don’t think they are paying private school tuition because they don’t have good lawyers … i think they lose these hearings because they don’t have good programs … i would rather see them pour resources into special education services than lawyers.”144 mayor de blasio has taken a different approach to the issue than his predecessor. in april 2014, the mayor announced reforms to ease the burden on parents of children with disabilities in pursuing their due process rights. 145 while noting that the city still reserves the right to litigate meritless claims, de blasio announced that the city will now seek to resolve disputes through settlement within fifteen 140 al baker, balancing special-education needs with rising costs, n.y. times (july 28, 2014), https://www.nytimes.com/2014/07/28/nyregion/28specialed.html [https://perma.cc/jv2l-f7bt]. 141 elissa gootman, in special education cases, city is fighting harder before paying for private school, n.y. times (dec. 12, 2007), http://www.nytimes.com/2007/12/12/nyregion/12consultants.html [https://perma.cc/uyc3-ytdj]. 142 id. 143 decker, supra note 110. 144 gootman, supra note 141. 145 baker, supra note 107. no. 4:398] socioeconomic and racial disparities 429 days of receiving a complaint.146 further, parents who do receive reimbursement need only resubmit relevant paperwork every three years, instead of annually, and so long as a child’s educational needs do not change significantly, that child can remain in their non-public placement without the parents having to file a new complaint for each academic year.147 according to de blasio, bloomberg’s approach may have been a “good litigation strategy, but it was not a humane way to run a school system.” 148 instead, de blasio called for a more “familyfriendly, respectful approach that didn’t matter how good your lawyers were, or how much money you had to spend on lawyers, but actually tried to address the family’s needs.”149 when asked about the potential increase in spending that would result, de blasio replied, “if there is an additional cost, it’s appropriate because we’re serving the families more fairly.”150 the increase in spending has indeed been significant.151 in 2016, the city paid $256 million in tuition reimbursement claims, which is over six times the roughly $40 million amount the city paid in 2009 when de blasio 146 id. 147 id. 148 patrick wall, city agrees to ease process for special needs students seeking private school tuition, chalkbeat (june 24, 2014), http://www.chalkbeat.org/posts/ny/2014/06/24/city-agrees-to-ease-processfor-special-needs-students-seeking-private-school-tuition/. 149 alex zimmerman, the city is paying for more students with disabilities to attend private school; advocates say problems persist, chalkbeat (july 8, 2016), http://www.chalkbeat.org/posts/ny/2016/07/08/the-city-is-paying-for-morestudents-with-disabilities-to-attend-private-school-advocates-sayproblems-persist/. 150 wall, supra note 148. 151 determining the exact dollar amount that the city pays out for tuition reimbursement claims is difficult. there is a large discrepancy between figures published in the newspapers, by the city council, and by the city’s comptroller’s office. given that the comptroller has the authority to settle or adjust all claims against the city, this note will use figures from the comptroller’s annual claims report. see new york city charter § 93(i). 430 columbia journal of race and law [vol. 8:2 was first elected mayor. 152 the 2009 figure may be artificially depressed by bloomberg’s aggressive push to decrease such spending, but the 2016 figure is still nearly double the roughly $130 million the city paid in 2014,153 and significantly more than the $106 million the city paid in 2013.154 due process complaints are also on the rise. the number of claims filed in the city doubled between 2013 (2,097 claims) and 2015 (4,475 claims), before plateauing in 2016 (4,091 claims).155 the oddity of this situation is that while reimbursements and claims may be on the rise, the number of idea tuition reimbursement claims against the city that are actually litigated in federal court is decreasing.156 this suggests that parents may be becoming more successful in the state administrative hearing level with either the iho or sro, perhaps an indirect effect of de blasio’s policy. despite these changes, problems still persist. during the 2014-2015 school year, 35% of students were only partially receiving the services proscribed in their iep and an additional 5% of students were not receiving any services proscribed by their iep.157 during the following year, those numbers were 33% and 8%, respectively.158 152 office of the n.y.c. comptroller, claims report: fiscal year 2016, at 23 (feb. 10, 2017), https://comptroller.nyc.gov/wp-content/uploads/documents/claims-reportfy-2016.pdf; office of the n.y.c. comptroller, claims report: fiscal years 2009 & 2010, at 64 (june 15, 2011), https://comptroller.nyc.gov/wpcontent/uploads/documents/2011_claims_report.pdf. 153 office of the n.y.c. comptroller, claims report: fiscal year 2015, at 23 (june 15, 2016), https://comptroller.nyc.gov/wpcontent/uploads/documents/claims_report_fy_2015.pdf. 154 id. 155 office of the n.y.c. comptroller, supra note 152, at 22 (feb. 10, 2017). 156 according to a search of the u.s. federal district court docket in the southern and eastern districts of new york in bloomberg law, only one tuition reimbursement claim was filed against the city between april 2014, when de blasio first announced his new policy, to march 2017, the time at which this note was completed. 157 n.y.c. dep’t of educ., local law 27 of 2015 annual report on special education school year 2014–2015, at 23 (feb. 29, 2016), no. 4:398] socioeconomic and racial disparities 431 even more concerning, “the department said that its data systems were so unreliable that it was not exactly sure what percentage of students were not receiving the services.”159 de blasio’s reforms may have eased some of the financial burdens facing parents who have initiated idea due process procedures, but the changes have not alleviated the structural disadvantages of the process, nor have they solved the deficiencies in the city’s public special education system. apart from reforms the city could initiate to improve the quality of such programs and improve the means of collecting reliable data to track those programs’ progress, the city should improve parental experience with the idea’s procedural safeguards, so that quality special education is more equitably distributed among children in need. iv. securing quality special education for each new york city child the purpose of this note is to highlight how issues stemming from the idea’s private enforcement mechanism manifest on the municipal level in new york city. this part will highlight reforms that can be achieved within local government, as opposed to a reform that would require congressional or federal agency action. additionally, this part will discuss the merits and drawbacks of three popular reform suggestions: voucher programs, state-funded legal assistance, and public enforcement of the idea. http://schools.nyc.gov/nr/rdonlyres/6035782c-f95d-4224-8372f2b1f7e9a226/0/locallaw27of20152292016final.pdf. 158 n.y.c. dep’t of educ., local law 27 of 2015 annual report on special education school year 2015–2016, at 24 (nov. 1, 2016), http://schools.nyc.gov/nr/rdonlyres/9b4fd479-461d-4120-8185a5ec8b548afa/0/locallaw27of2015201516annualreportonspecialeduc ation.pdf. 159 kate taylor, thousands of new york city students deprived of specialeducation services, report says, n.y. times (march 1, 2016), https://www.nytimes.com/2016/03/02/nyregion/thousands-of-new-york-citystudents-deprived-of-special-education-services-report-says.html [https://perma.cc/e4v3-hlfy]. 432 columbia journal of race and law [vol. 8:2 a. vouchers few areas of education policy are as controversial as the issue of publicly funded school vouchers, but for reasons discussed in this section, establishing a formal state education voucher program is not the best way to achieve the idea’s statutory goals within new york city. 1. a brief explanation of vouchers and school choice the nomination and confirmation of betsy devos as secretary of education reignited the school voucher debate on the national level. the confirmation hearing, notoriously, went very poorly.160 devos’ remarks on special education were perhaps the most troubling aspect of her hearing, as it illustrated the now-secretary’s lack of awareness of basic protections for students with special needs under the idea.161 in response to the criticism, devos claims to have simply been “confused” by the question.162 senator maggie hassan of new hampshire, who is the mother of a son with a qualifying disability under the idea, asked devos on her view of special education voucher programs; specifically, whether or not private institutions that accept vouchers should be allowed to waive idea protections so that students no longer have recourse in the 160 kate zernike & yamiche alcindor, betsy devos’s education hearing erupts into partisan debate, n.y. times (jan. 17, 2017), https://www.nytimes.com/2017/01/17/us/politics/betsy-devos-educationsenate-hearing.html [https://perma.cc/qy87-adcg]. 161 aimee ortiz, hassan questions betsy devos’s knowledge of civil rights disabilities law for students, bos. globe (jan. 18, 2017), https://www.bostonglobe.com/news/politics/2017/01/18/devos-unfamiliaritywith-civil-rights-law-for-students-with-disabilities-concernshassan/eargm1bazuy9pg2rcl5q8m/story.html [https://perma.cc/48ja4egn]. 162 valerie strauss, betsy devos apparently ‘confused’ about federal law protecting students with disabilities, wash. post (jan. 17, 2017), https://www.washingtonpost.com/news/answer-sheet/wp/2017/01/17/betsydevos-confused-about-federal-law-protecting-students-withdisabilities/?utm_term=.cd11453f1925 [https://perma.cc/7rp6-bn6v]. no. 4:398] socioeconomic and racial disparities 433 courts to enforce their federal special education rights. 163 senator tim kaine of virginia, who hillary clinton selected to be her vice presidential nominee during the 2016 election, asked devos, “should all schools that receive taxpayer funding be required to meet the requirements of the individuals with disabilities education act?” 164 devos replied that the matter is best left to the states.165 both of devos’ answers appeared to indicate that she was unaware of the procedural safeguards under the idea and that, as a federal law, those safeguards preempt a state’s ability to provide protections less than what the federal statute requires.166 despite these troubling exchanges, devos is now the secretary education and will presumably serve in the position for at least the next four years.167 as a result, the issue of vouchers is likely to become more prominent as devos, a champion of the so-called school choice movement, leads the u.s. department of education. discussions on special education reform must at least acknowledge this reality. members of the school choice movement, like devos, are eager to point out the shortcomings of public education. they argue that children caught up in public schools that fail 163 senator maggie hassan, devos refuses to answer senator hassan’s question on protecting students with disabilities, youtube (jan. 17, 2017), https://www.youtube.com/watch?v=fftskn5hfda. 164 tim kaine, betsy devos refuses to answer kaine’s questions on her level of support for public education, equal accountability standards & trump’s financial conflicts of interest , tim kaine: united states senator for virginia (jan. 17, 2017), http://www.kaine.senate.gov/press-releases/betsy-devos-refuses-to-answerkaines-questions-on-her-level-of-support-for-public-education-equalaccountability-standards-and-trumps-financial-conflicts-of-interest [https://perma.cc/4lvr-3nxd]. 165 id. 166 senator maggie hassan, supra note 163. 167 emma brown, with historic tiebreaker from pence, devos confirmed as education secretary, wash. post (feb. 7, 2017), https://www.washingtonpost.com/local/education/senate-to-vote-today-onconfirmation-of-betsy-devos/2017/02/06/fd4b7e9c-ec85-11e6-96626eedf1627882_story.html?utm_term=.9123acbffc00 [https://perma.cc/t6k4-mnqt]. 434 columbia journal of race and law [vol. 8:2 to adequately perform cannot wait until the public education system is reformed. instead, they argue that the government should fund many of these students’ education at a private or charter institution through school vouchers to ensure the students can obtain the best education possible.168 some in the school choice movement may have an ideological opposition to public education, and to the restrictions on the inclusion of religion in public school curriculums.169 other supporters of the movement claim to have a more timefocused perspective rooted in a sense of urgency: there exists a finite window of time where a child will benefit from a quality education, and if that opportunity passes, the damage may be difficult to undo. this argument becomes more pronounced for students with disabilities, particularly those with autism. like all children, those with autism “will benefit from early and appropriate services,” although for children with autism, “the window of opportunity is widest when the child is young, and the damage to the child's development if this opportunity is not seized can never be undone.”170 underfunded public schools may lack sufficient resources to meet this need as services “tend to be scattered, fragmented, and poorly coordinated.”171 the degree to which the school choice debate has become contentious is difficult to overstate. teachers unions, for example, view the increased use of vouchers as an existential threat; schools that accept vouchers, unlike new york city public schools, often do not have a unionized 168 greene, supra note 114. 169 see, e.g., tammy harel ben shahar, race, class, and religion: creaming and cropping in religious, ethnic, and cultural charter schools, 7:1 colum. j. race & l. 1, 20 (2016) (noting “religious communities have adopted practical alternatives to fund religious schooling, such as voucher programs that direct public funding to private schools through parental choice.”). 170 amicus curiae brief of autism speaks as amicus curiae in support of respondents at 25, bd. of educ. of the city sch. dist. of the city of new york v. tom f., 552 u.s. 1 (2007) (no. 06-637).. 171 id., at 17 quoting autism spectrum disorder expert working group, interagency autism coordinating committee, national institute of mental health, department of health and human services, autism spectrum disorders roadmap (may 16, 2005) at 3. no. 4:398] socioeconomic and racial disparities 435 faculty. 172 but the opposition to vouchers goes beyond organized interest groups. some maintain an ideological opposition to the use of vouchers, arguing they undermine the promise of universal public education. 173 research appears to support this argument: recently, “[t]hree consecutive reports, each studying one of the largest new state voucher programs, found that vouchers hurt student learning.”174 even in the instances where proponents can point to the success of school vouchers, it is important to remember that the pool of students within these schools are self-selected by highly motivated parents who are already likely to be very involved in their child’s education. securing a spot in many of the prized charter schools or obtaining a voucher requires diligent effort on the part of the parent, so that “those who are better educated, involved and motivated, and those who are better connected, make better educational choices for their children.” 175 and so even if a voucher program is successful, it is difficult to scale up a program that relies so heavily on a self-selected pool of parents and children.176 funding for vouchers come from the general public education budget, so not only do the use of vouchers further partition access to education by dividing the student population between public school students and voucher 172 nat’l educ. ass’n, supra note 115. 173 strauss, supra note 162. 174 kevin carey, dismal voucher results surprise researchers as devos era begins, n.y. times (feb. 23, 2017), https://www.nytimes.com/2017/02/23/upshot/dismal-results-from-voucherssurprise-researchers-as-devos-era-begins.html?_r=0 [https://perma.cc/jnx4-vw8v]; emma brown & mandy mclaren, how indiana’s school voucher program soared, and what it says about education in the trump era, wash. post (dec. 26, 2016), https://www.washingtonpost.com/local/education/how-indianas-schoolvoucher-program-soared-and-what-it-says-about-education-in-the-trumpera/2016/12/26/13d1d3ec-bc97-11e6-91ee1adddfe36cbe_story.html?utm_term=.ec8e9b29523c [https://perma.cc/xs4s-qdvd]. 175 harel ben shahar, supra note 169, at 43-44. 176 see, e.g., piet van lier, analyzing autism vouchers in ohio, policy matters ohio, at 16 (2008), http://www.policymattersohio.org/wpcontent/uploads/2011/09/analyzingautismvouchers2008_0319.pdf. 436 columbia journal of race and law [vol. 8:2 students, “vouchers divert much-needed resources away from public schools and re-route it to private and religious schools.”177 this claim echoes the criticism of the private enforcement mechanism under the idea. 2. state special education voucher programs during devos’ confirmation hearing, both she and senator hassan cited state special education voucher programs in furtherance of their respective policy visions. devos mentioned a program in ohio as a model of success for state special education voucher programs, and even brought an alumnus of the school to her hearing.178 senator hassan noted a program in florida that requires students to sign away idea rights upon receipt of the voucher, which the senator described as “fundamentally wrong.”179 over half a dozen states run special education voucher programs, and similar proposals exist in an additional dozen states.180 while “these programs differ in various respects, the essential element in each program is the ability of children with special needs to leave their public school and use funds otherwise intended for their public education to attend a private school of their choice.”181 proponents of increased use of special education vouchers cite parental satisfaction as a primary rationale for expanding similar programs. in defending the mckay scholarship program to senator hassan, for example, devos cited a statistic showing overwhelming parental approval.182 devos is correct: studies of special education voucher 177 valerie strauss, the case against school vouchers: sen. patty murray takes a stand on senate floor, n.y. times (july 8, 20150, https://www.washingtonpost.com/news/answer-sheet/wp/2015/07/08/thecase-against-school-vouchers-sen-patty-murray-takes-a-stand-on-senatefloor/ [https://perma.cc/ah2z-dvk2]. 178 senator maggie hassan, supra note 163. 179 id. 180 adamo usman, supra note 129, at 63. 181 id. at 64. 182 senator maggie hassan, supra note 163. no. 4:398] socioeconomic and racial disparities 437 programs in utah and florida have produced “clear evidence suggesting that special needs vouchers are popular with many parents of children with disabilities, and the overwhelming majority of voucher participants are pleased with these programs.”183 advocates argue that parents, not educational bureaucracies, are best situated to evaluate their children’s progress, and thus parental satisfaction of voucher programs illustrate the need to expand them: parents’ strong emotional attachment to their children and considerable knowledge of their particular needs make parents the childspecific experts most qualified to assess and pursue their children’s best interests in most circumstances. in contrast, the state’s knowledge of and commitment to any particular child is relatively thin. 184 as discussed earlier in this note, however, parents may not always be best suited to make evaluative determinations, particularly those who do not have the luxury of time to devote to such an important task or the strong informational networks to inform their conclusions. but even if every parent had the necessary time and institutional knowledge to effectively advocate on behalf of their child, many private institutions do not provide the same evaluative tools as do public institutions, meaning that parents are left to make their evaluations on subjective determinations that are often irrelevant to their child’s educational progress. 185 many private institutions, for instance, do not administer standardized testing to monitor student educational progress or even require that their teachers complete training in 183 wendy f. hensel, vouchers for students with disabilities: the future of special education?, 39 j.l. & educ. 291, 333 (2010). 184 emily buss, “parental rights”, 88 va. l. rev. 635, 647 (2002). 185 adamo usman, supra note 129, at 76. 438 columbia journal of race and law [vol. 8:2 special educational services,186 although new york state does require both.187 florida runs the oldest special education voucher program in the united states, the mckay scholarship program for students with disabilities, and “there are reports of mckay scholarship students who received high grades in private schools only to find that they were several grade levels behind when returning to public school.” 188 school choice advocates argue such problems can be alleviated with additional legislative reforms and are not inherent to voucher programs generally. the mckay program was fraught with corruption and fraudulent activity in the early years of its operation, but legislative reforms subsequent to the program’s inception have mitigated the extent to which such problems exist. 189 still, the lack of sufficient oversight is merely a part of the problem with expanding special education voucher programs. a larger issue with voucher programs is the implications they have on students’ federal idea rights. in 1990, the office of civil rights (ocr) under the u.s. department of education indicated that students who participate in state voucher programs that are not funded with federal special education funding waive the protections afforded to them under the idea, that is, they are no longer entitled to a free and appropriate education or a program that conforms with their iep.190 the ocr reiterated this position in 2004, noting that if a school district offers a free and appropriate education under the idea but a parent still elects to send their child to private school, that child has “no individual entitlement to a free appropriate public education including special education and related services in 186 id. 187 § 200.7(b)(6); u.s. dep’t of educ., state regulation of private schools, at 196 (2009), https://www2.ed.gov/admins/comm/choice/regprivschl/regprivschl.pdf. 188 hensel, supra note 183, at 335. 189 adamo usman, supra note 129, at 65. 190 office for civil rights, u.s. dep’t of educ., staff memorandum, 22 idelr 669, 670 (july 27, 1990). no. 4:398] socioeconomic and racial disparities 439 connection” with that private school.191 this decision means that by accepting a special needs voucher, a parent “effectively waives all meaningful protection under the idea for his or her child.”192 the waiver of idea rights is not insignificant. once such rights are waived, “if the education the student receives at the private school is not adequate, the student has no legal recourse under the idea against either the private school or the state.” 193 some proponents of these programs note the option parents have to always re-enroll their child back in public schools to regain idea rights, if desired.194 but such an argument is somewhat circular, as it undermines the time urgency rationale at the heart of the school choice movement. furthermore, this is exactly the situation that senator hassan warned about in devos’ confirmation hearing, when the senator noted that such situations would result in “turning our public schools into warehouses” for the kids with the most challenging disabilities or the “kids whose parents cannot afford to make up the difference between the voucher and private school’s tuition.”195 creating a special education voucher program in new york is the wrong solution for the problems outlined in this note. the informal system created by the jose p. litigation, while effectively a de facto voucher program, is different from other existing state programs for two important reasons. first, when the city fails to provide a school placement for a child in a timely manner, under jose p., the city must then pay for that child’s education at a state-approved non-public school. 196 these institutions are critically different from other private institutions, at which parents pay to send their children with their own money, a successful tuition reimbursement claim, or in states that have such programs, 191 office for civil rights, u.s. dep’t of educ., letter to bowen, 35 idelr 129, 130 (march 23, 2001). 192 hensel, supra note 183, at 317. 193 adamo usman, supra note 129, at 80. 194 id. 195 senator maggie hassan, supra note 163. 196 jose p., 557 f. supp. at 1241. 440 columbia journal of race and law [vol. 8:2 a school voucher. state approved non-public schools, unlike other private schools, are more heavily regulated and students maintain their idea rights while attending. 197 second, jose p., was established as a temporary response to a failing, underfunded system.198 by establishing a formal special education voucher program, the city would essentially be admitting that it cannot comply with the expectations set by jose p., let alone the mandate set by the idea. b. publicly funded special education attorneys another reform that would not require the assistance of either congress or the u.s. department of education is the creation of an office similar to a public-defender system that would offer legal advice during cse meetings and litigation assistance for low-income parents for children with qualifying disabilities. acknowledging the vital need for lowincome parents to access affordable legal representation in these matters is present throughout academic literature on the idea.199 the attorneys in this new office would provide the same legal assistance that many non-profit organizations already do on a pro bono or reduced-rate basis for low-income parents, such as the partnership for children’s rights or advocates for children.200 the program would offer support for low-income parents in crafting their child’s iep, during which attorneys’ fees are not currently recoverable, as well as in any litigation that may be necessary to ensure that their child receives a quality education.201 197 u.s. dep’t of educ., supra note 187. 198 jose p., 557 f. supp. at 1241. 199 see, e.g., kerrigan o’malley, school inequality: challenges and solutions: allen chair issue 2016: federal role in the governance of public schools: from mainstreaming to marginalization? – idea’s de facto segregation consequences and prospects for restoring equity in special education, 50 u. rich. l. rev. 951, 988 (2016); valverde, supra note 113, at 623; phillips, supra note 123, at 1849. 200 partnership for children’s rights, services we provide, http://www.pfcr.org/services-we-provide; advocates for children, who we serve, http://www.advocatesforchildren.org/who_we_serve. 201 § 1415(i)(3)(d)(ii). no. 4:398] socioeconomic and racial disparities 441 while “legal representation is one of the greatest determinants of success” in utilizing the procedural safeguards under the idea, “parents of children with disabilities from low-income households are less likely to receive legal assistance in pursuing special education challenges against school districts.” 202 a program that offered publicly funded special education attorneys would help alleviate this problem and also remove many of the institutional barriers in idea due process procedures that disproportionately affect low-income families, such as the necessary financial resources and institutional knowledge. ensuring that the children of low-income families have stronger ieps will result in stronger educational outcomes. the difficulty in enacting this reform is the requisite costs, which would be a double-edged sword for the city. establishing the program would require one sum of money to pay the salaries of the program’s lawyers and another sum of money to be paid out once those lawyers are successful in securing tuition reimbursement claims from the city government, although it is fair to argue that stronger ieps may reduce the need for tuition reimbursement claims later on. commentators have described such costs as “prohibitive” and “expensive,”203 requiring “robust funding sources,”204 and therefore “not likely to gain traction” among policymakers.205 despite the dismissive language, there does not appear to be a detailed estimate for creating such a program in new york city, although available data can help provide some clarity on the necessary start-up costs. while the city does not release socioeconomic data on the special education student population, it does release data on the number of students who qualify for the free or reduced price lunch program, which can serve as a proxy for socioeconomic status.206 in the 2015-2016 school year, 12,052 students who 202 valverde, supra note 113, at 622. 203 phillips, supra note 123, at 1848-49. 204 o’malley, supra note 199, at 988. 205 pasachoff, supra note 21, at 1455. 206 for the 2016-2017 school year, a two-parent household with one child would need to earn less than $26,208 annually to qualify for free lunch. the same family would need to earn less than $37,296 to qualify for a 442 columbia journal of race and law [vol. 8:2 qualify for the lunch program were newly determined to be eligible for an iep under the idea. 207 in the 2014-2015 school year, that number was 12,329. 208 assuming this number remains consistent from year to year, this new program would need to hire enough lawyers to handle an annual case load of roughly 12,000 students each year. the size of a given lawyer’s caseload varies depending on an individual lawyer’s capacity and the type of legal work in which they are engaged. according to american bar association guidelines for lawyers working in matters related to child-welfare agencies, a caseload of 40-50 clients is considered to be reasonable. 209 given that special education lawyering is a similarly fact-intensive and emotionally taxing endeavor as child-welfare casework, we can assume this new program would need to hire lawyers to manage at least 50 cases each, which would come out to a need of 240 lawyers to accomplish the program’s objectives each year. attorneys at the new york city law department, who are tasked with defending the city against tuition reimbursement claims under the idea, earn a starting salary of roughly $60,000. 210 similarly, starting salaries for other publicly funded attorneys, like in the new york district attorney’s office or in manhattan legal services, are also about $60,000.211 if we assume lawyers in reduced price lunch. hunger solutions new york, 2016-2017 income guidelines for free and reduced price school meals, http://hungersolutionsny.org/information-resources/hungerresources/2016-2017-income-guidelines-free-and-reduced-price-school. 207 n.y.c. dep’t of educ., supra note 158, at 6. 208 n.y.c. dep’t of educ., supra note 157, at 5. 209 a.b.a., standards of practice for lawyers representing child welfare agencies, at 20 (aug. 2004), http://www.americanbar.org/content/dam/aba/administrative/child_law/age ncy-standards.authcheckdam.pdf. 210 n.y.c. law dep’t, careers, http://www.nyc.gov/html/law/html/careers/students_salary.shtml. 211 the new york county dist. attorney’s office, salary and benefits, http://manhattanda.org/salary-and-benefits; while manhattan legal services does not publicize attorney salaries, one legal blogger put together an estimate based on leaked information from contract negotiations. sam wright, legal aid strike offers window into ny public interest compensation, above the law (feb. 12, 2015), no. 4:398] socioeconomic and racial disparities 443 this new program would earn about the same salary as their counterparts in other city government agencies, the cost of the new program, when only considering attorney salaries, would be roughly $14,400,000 each year.212 this estimate comes with many caveats. first, using the number of students who qualify for the free or reduced price meal program is helpful for identifying students with greater than average financial needs, but it likely is under inclusive of the number of families that would need assistance obtaining a lawyer given that parents cannot recover attorney fees obtained during a cse meeting. 213 second, the number of cases an individual lawyer can manage will greatly affect the estimate, and this estimate is only based on the number of students entering the special education system each year, as opposed to all students within the system. third, the estimate only considers salary expenses when, presumably, a variety of other expenses would also be required to establish the program, ranging from acquiring the necessary office space and supplies, to the benefits and salary increases to which these public employees would be entitled. still, while this estimate may appear large, it is less than 6% of the $256 million the city paid in tuition reimbursement claims last year.214 absent a grant from the u.s. department of education, new york city would need to secure the necessary funding on its own. de blasio could raise taxes to fund the program, but tax rate changes in the city require the approval of the new york governor and of the state legislature, both of which have traditionally showed hostility to the city and its various mayors.215 with a tax increase http://abovethelaw.com/2015/02/legal-aid-strike-offers-window-into-nypublic-interest-compensation/ [https://perma.cc/fcc8-x8vt]. 212 the algebra is as follows: 12,000 new referral students in the reduced price lunch program each year divided by 50 cases for each lawyer to manage, comes out to 240 lawyers, which when multiplied by a salary of $60,000, equals an annual cost of $14,400,000. 213 § 1415(i)(3)(d)(ii). 214 office of the n.y.c. comptroller, supra note 152, at 22. 215 a recent de blasio effort to reform education policy in the city illustrates this problem: one of the mayor’s central campaign promises was to establish universal public pre-school, which was to be paid for by a 444 columbia journal of race and law [vol. 8:2 unlikely, the city could fund the program with existing resources, but doing so would also be difficult. federal funding assistance for the city, and many other cities in the country, now face uncertainty with the impending legal battle over sanctuary status for undocumented immigrants.216 further, the city bears the burden of being president trump’s hometown, which means the city is responsible for the security bill for protecting trump tower.217 while the city has already prepared for budget cuts, there are still two unknowns that may offer financial hope. first, tuition reimbursement spending has significantly increased since the de blasio policy went into effect, but it is unclear if this spending will continue on an upward trajectory. if it plateaus, or even starts to decline, additional funding may be available. second, there is significantly less litigation in special education occurring in the city because of the de blasio policy. it is unclear how much the city is saving on what would have otherwise been spent on attorneys to defend against such claims. and so despite the financial barrier of the new program, it is clear that it could neutralize many of the barriers disproportionately impacting low-income families discussed in this note. tax increase on wealthy new york city residents. de blasio got the program, but did not get the tax increase to fund it. instead, the mayor was able to work out a deal with governor andrew cuomo to secure the additional funding through other means. cuomo only acquiesced after significant lobbying and public pressure, factors that unfortunately are not present in the fight for special education access for low-income individuals. see michael m. grynbaum & thomas kaplan, pre-k plan puts cuomo at odds with de blasio on funding, n.y. times (jan. 21, 2014), https://www.nytimes.com/2014/01/22/nyregion/cuomo-prekindergartenproposal.html [https://perma.cc/2n8y-4m42]. 216 liz robbins, ‘sanctuary city’ mayors vow to defy trump’s immigration order, n.y. times (jan. 25, 2017), https://www.nytimes.com/2017/01/25/nyregion/outraged-mayors-vow-todefy-trumps-immigration-order.html [https://perma.cc/3jst-44jf]. 217 it cost new york city $24 million to secure trump tower from election to inauguration, fortune (feb. 22, 2017), http://fortune.com/2017/02/22/trump-tower-security-costs-taxpayer/ [https://perma.cc/n9tq-7vcn]. no. 4:398] socioeconomic and racial disparities 445 c. public enforcement of the idea most of the proposed and accomplished reforms related to the idea correctly focus on addressing the financial and information barriers that families face in pursuing private enforcement. whether it is the supreme court expanding the grounds on which a parent may bring suit for tuition reimbursement,218 congress allowing parents who successfully litigate their tuition reimbursement claims to collect attorneys’ fees, 219 or even de blasio’s 2014 settlement policy,220 each of these changes implicitly affirm the private enforcement system. a truly novel approach to idea reform would be to look beyond a reliance on individuals to guard and enforce their federal special education rights, and instead look to the government. 1. the need for public enforcement professor eloise pasachoff produced a comprehensive summary on american special education, deficiencies in the idea private enforcement system, and existing proposals for improvement. 221 she provides a persuasive rationale for exploring idea public enforcement: where a statute is enacted to effectuate a particular public policy and private enforcement is insufficient to effectuate that policy, it is reasonable to suggest that public enforcement is necessary if the statute is to be properly administered. for example, if private enforcement actions are disproportionately brought by one segment of a statute's intended beneficiaries with particular demographic characteristics, there is likely to be underdeterrence of the wrong the statute seeks to redress with respect to other 218 forest grove sch. dist., 557 u.s. at 246-47. 219 handicapped children's protection act of 1986, pub. l. no. 99-372. 220 baker, supra note 107. 221 pasachoff, supra note 21, at 1413. 446 columbia journal of race and law [vol. 8:2 demographics… the need for public enforcement may be particularly acute where distribution of government funding or resources is at issue, for where there is underdeterrence, there may also be undercompensation of the individuals the public policy seeks to protect. 222 the above passage aptly describes the phenomenon occurring in special education. wealthy, generally white, families disproportionately initiate private enforcement actions, resulting in what pasachoff describes as an underdeterrence of providing poor quality special education for low-income, generally non-white, students: “when poor children enforce their rights at lower rates than wealthier children, the dynamics tend to lead to better services for wealthier children.”223 unsurprisingly, “school districts seek to contain expenses by limiting or reducing services for those with the quietest voices.”224 public enforcement of the idea is not a radical proposal. the mechanism for government oversight in this area already exists, theoretically, at the federal level. the u.s. department of education has the power to withhold federal funding from states that fail to comply with idea guidelines. yet, despite the fact that “the federal agency charged with idea enforcement repeatedly found states in violation of the idea, it has almost never taken any formal action to withdraw funds, limiting its involvement to negotiation and acceptance of minimal improvements” 225 devos’ confirmation as secretary of education is again relevant, for at least as long as the next four years, this practice of inaction at the federal level is unlikely to change under her leadership. states and localities can step in to fill the leadership vacuum. 222 id. at 1462. 223 id. at 1419. 224 valverde, supra note 113, at 623. 225 pasachoff, supra note 21, at 1462. no. 4:398] socioeconomic and racial disparities 447 pasachoff extensively explores the potential weaknesses of public enforcement, including “inefficiency, inadequate resources, and capture,” but correctly notes that such pitfalls are “design challenges rather than insurmountable limitations.” 226 using this framework, we can assess the benefit of adopting a public enforcement model in new york. 2. public enforcement in new york city through the public advocate new york city’s government structure is uniquely suited for adopting the public enforcement model. the city would not need to heavily invest in creating a new agency and fund a new army of special education lawyers. instead, the city council could expressly confer oversight responsibility of public special education to the city’s public advocate by amending the city charter. after the mayor and the speaker of the city council, the public advocate is the most visible elected official in new york city. the position serves as “a ‘watchdog’ over city government and a counterweight to the powers of the mayor”227 by providing “a voice to everyday new yorkers.” 228 given that the public advocate has increasingly pursued lawsuits to combat local administrative failures, adding special education litigation to her portfolio appears to be a simple way to make a big difference without a significant funding allocation. the city council established the public advocate in 1993 by renaming the now non-existent position of president of the city council.229 while the renaming was designed to 226id. at 1462 (internal citations omitted). 227 green v. safir, 174 misc. 2d 400, 403 (sup. ct. 1997) (internal citations omitted). 228 samar khurshid, james wins battle in long war over public advocate’s legal standing, gotham gazette (sept. 9, 2016), http://www.gothamgazette.com/city/6518-james-wins-battle-in-long-warover-public-advocate-s-legal-standing [https://perma.cc/rr3l-z85q]. 229 james c. mckinley jr., a new job for stein, without a race?, n.y. times (feb. 23, 1993), http://www.nytimes.com/1993/02/23/nyregion/a-newjob-for-stein-without-a-race.html [https://perma.cc/uf46-ehfs]. 448 columbia journal of race and law [vol. 8:2 decrease the influence of the office holder, the opposite has occurred: the four individuals who served as public advocate have each used the position as an opportunity to highlight important issues in the city to encourage reform and, in doing so, bolster their own public profile.230 the relationship between the public advocate and the mayor is generally fraught with political calculation and tension, which may be the best rationale for entrusting the public advocate with more oversight responsibility for public special education. if a given public advocate has ambitions for higher office, then they have the political incentive to uncover institutional failures of city government and work to impose reforms. as an independently elected position, the public advocate is insulated from the type of capture pasachoff discussed, to which many administrative offices staffed with non-elected, appointed positions are more susceptible. the two greatest obstacles to public enforcement of the idea through the public advocate’s office are the existing budgetary constraints on the office and the legally uncertain grounds on which the public advocate may bring lawsuits against the city. despite the inherently adversarial relationship between the public advocate and the city, it is the mayor and city council who control the public advocate’s budget. a hostile mayor or city council speaker can weaken a public advocate through budget cuts. mayor bloomberg cut the office’s budget from $2.9 million to $1.8 million (a cut of roughly 40% of the total budget) in 2010 231 and publicly stated that he believes the position to be “a total waste of money.”232 public advocate betsy gotbaum called the move 230 public advocates are generally considered by the local media to be presumptive future mayoral candidates, as two of the four individuals who held the position have run for mayor: mark green and, current mayor, bill de blasio. see khurshid, supra note 228. 231 david w. chen, gotbaum budget is cut 40%; she calls it political payback, n.y. times (june 19, 2009), http://www.nytimes.com/2009/06/20/nyregion/20advocate.html?_r=1&hpw [https://perma.cc/zf7r-rgen]. 232 mayor bloomberg doesn’t want public to have an advocate, staten island advance (oct. 12, 2009), http://www.silive.com/news/index.ssf/2009/10/mayor_bloomberg_outlines_s ome.html [https://perma.cc/cje6-j625]. no. 4:398] socioeconomic and racial disparities 449 “political payback” and gotbaum’s predecessor, mark green, described the cut as “a complete abuse of power.”233 while de blasio has since partially restored the office’s funding to $2.3 million, the fiasco underscores that, under this model of public enforcement, pasachoff’s concern of inadequate resources is valid. 234 the question of the public advocate’s standing in a given lawsuit against the city or the state is sufficiently interesting and controversial to deserve its own note, and acts as the other large barrier to effectuating this reform vision. while “the public advocate’s ability to sue is narrowly defined and isn’t actually a power expressly given to the office in the city’s charter,” the officeholder has increasingly relied on litigation as a governing tool. 235 but because of the lack of explicit statutory authority in the city charter, “the ability of the public advocate to pursue litigation has been crafted through decades of case law and precedents that have defined a narrow path for the office’s actual legal powers.”236 current public advocate, letitia james, made her governing vision clear at a 2016 rally: “i want all of you to know that this is a new office of the public advocate … and now we’re going to use the office of the public advocate to sue.”237 keeping her word, james has filed more lawsuits 233 chen, supra note 231. 234 pasachoff, supra note 226, at 1463; jill colvin, de blasio nearly doubles budget for his old office, observer (feb. 12, 2014), http://observer.com/2014/02/de-blasio-nearly-doubles-budget-for-his-oldoffice/ [https://perma.cc/8k7j-4x63]. 235 laura nahmias, james removed from another lawsuit over lack of standing, politico (apr. 12, 2014), http://www.politico.com/states/newyork/city-hall/story/2016/04/james-removed-from-another-lawsuit-overlack-of-standing-033386 [https://perma.cc/8eas-vc6f]. 236 laura nahmias, court strengthens public advocate's capacity to sue, politico (sept. 1, 2016), http://www.politico.com/states/new-york/cityhall/story/2016/09/court-strengthens-public-advocates-capacity-to-sue105116 [https://perma.cc/c93x-q4mj]. 237 see laura nahmias, tish james pushes limits of office, gets pushed back, politico (feb. 24, 2016), http://www.politico.com/states/newyork/city-hall/story/2016/02/tish-james-pushes-limits-of-office-gets-pushedback-031562 [https://perma.cc/ywj4-tfdm]. 450 columbia journal of race and law [vol. 8:2 than all of her three predecessors combined.238 but james owes her recent successes to the first elected public advocate, mark green, who established the necessary precedent on which his successors have built. in 1997, the new york county supreme court granted green’s request to access police officer disciplinary files and affirmed that green had legal standing to make such a claim.239 an appellate court affirmed the ruling, and the new york court of appeals denied the police department’s appeal.240 in 2000, the new york county supreme court again affirmed this power, holding that the “public advocate is an independently elected official with capacity to sue.”241 while courts have appeared sympathetic to the public advocate’s ability to bring claims, much to the frustration of other city officials, the record of success is mixed.242 the city council could easily ameliorate this ambiguity by amending the city charter to expressly confer such powers on the public advocate. amending the city charter, while rare, is not unheard of in city politics.243 a special home rule allows the city to amend its governing document without the input of legislators in albany. 244 the administrative inefficiencies that pasachoff feared in 238 nikita stewart, letitia james’s ease in the courtroom informs her role as public advocate, n.y. times (aug. 23, 2015), https://www.nytimes.com/2015/08/24/nyregion/letitia-jamess-ease-in-thecourtroom-informs-her-role-as-public-advocate.html?_r=0 [https://perma.cc/k5d9-b7vm]. 239 green, 174 misc. 2d at 405-06. 240 green v. safir, 93 n.y.2d 882 (1999); green v. safir, 255 a.d.2d 107, 108 (app. div. 1998). 241 green v. giuliani, 187 misc. 2d 138, 144 (sup. ct. 2000). 242 nahmias, supra note 235; nahmias, supra note 236; khurshid, supra note 228. 243 sewell chan & jonathan p. hicks, council votes, 29 to 22, to extend term limits, n.y. times (oct. 23, 2008), https://cityroom.blogs.nytimes.com/2008/10/23/council-to-debate-termlimits-change/ [https://perma.cc/cp68-c8bp]. 244 douglas muzzio, bloomberg moves to change the city charter, but how?, gotham gazette (mar. 8, 2010), http://www.gothamgazette.com/index.php/archives?id=467:-bloombergmoves-to-change-the-city-charter-but-how-&catid=67:city-homepage [https://perma.cc/g7fd-wxew]. no. 4:398] socioeconomic and racial disparities 451 creating a public enforcement model could certainly manifest through protracted litigation over standing, but the city council can easily fix this problem. once granted such powers, the public advocate should not take up individual tuition reimbursement claims, but should rather pursue larger class action lawsuits against the city that take aim at widespread deficiencies in public special education. the goal is to improve the delivery of services, thereby mitigating the need for future tuition reimbursement claims. still, the jose p. litigation provides a cautionary tale for this reform. after 40 years of conference negotiations, the city is still struggling to keep up with the order: during the 2015-2016 school year, almost a third of students who were first deemed to have a qualifying idea disability had their iep meeting 60 days after the child’s initial referral.245 the 60-day marker is significant because it is the period after which the jose p. order applies.246 the number was about the same for the previous school year.247 imposing more high profile class actions against the city may incentivize reform, but the benefits of such action may take over 40 years to happen. the primary benefit of public advocate action is the publicity her actions would bring to the issue and, if she is successful, the legal force of any judicial order she may secure. this reform certainly carries the risk of administrative inefficiencies and would not, alone, be sufficient to solving the city’s special education inequality problem. 245 of the 15,447 students who received their first referral for evaluation and who were found to be eligible for the idea during the 2015-2016 school year, 4,583 of them had their iep meeting held after 60 days of the parent’s consent for evaluation. n.y.c. dep’t of educ., supra note 158, at 6. 246 jose p., 557 f. supp. at 1241. 247 of the 15,567 students who received their first referral for evaluation and who were found to be eligible for the idea during the 2014-2015 school year, 4,770 of them had their iep meeting held after 60 days of the parent’s consent for evaluation. n.y.c. dep’t of educ., supra note 157, at 5. 452 columbia journal of race and law [vol. 8:2 v. conclusion despite the proposals discussed in this note, reforming the special education system so that it can adequately provide every qualifying child with a free and appropriate education will likely require reform at the federal level. much of the academic literature on this subject focuses on demanding that the u.s. department of education more forcefully enforce the idea and calling on congress to fully fund the idea’s mandate on state and localities, something on which president barack obama campaigned but was not able to achieve.248 absent such action, there is still opportunity for states and localities to act. over the long-term, creating a new public defender-like agency can level the playing field for low-income, mostly non-white, families in new york city. while the program would be costly, it would effectively neutralize many of the barriers posed by the idea procedural safeguards that disproportionately impact lowincome families. until the funding for such a program is secured, in the short-term, the public advocate could use the bully pulpit of her office to rally public opinion and force reform through class action lawsuits. when discussing issues in american special education and potential reforms to the idea, it is important not to shame parents who are successful in their tuition reimbursement claims. parents only want what is best for their children, and parents who are able to secure tuition reimbursements do not deserve scorn for doing so. it is not their fault that the system has created socioeconomic and racial disparities; it is the government’s fault for failing to create a system that takes into account how socioeconomic status may affect a parent’s ability to enforce their rights, and, because of a history of institutional racism, that prevents such a system from disproportionately impacting 248 politifact, the obamameter fully fund the individuals with disabilities education act (idea), http://www.politifact.com/truth-ometer/promises/obameter/promise/89/fully-fund-the-individuals-withdisabilities-educa/ [https://perma.cc/9ugu-tn5c]. no. 4:398] socioeconomic and racial disparities 453 communities of color. the reforms discussed in this note can help mitigate these problems and new york city should lead the way in ensuring that every qualifying child, regardless of class or race, is afforded a free and appropriate public special education. i. introduction ii. overview of the individuals with disabilities education act a. legislative history and judicial scrutiny of the idea b. idea procedural requirements: private enforcement 1. identifying disability 2. enforcing idea rights iii. differing responses to idea litigation in new york city a. disparities in special education 1. special education as a means of segregation 2. educational disparities in new york city public schools b. inequalities of private enforcement use and education quality 1. attending the cse meeting 2. lack of institutional knowledge 3. inability to assess the adequacy of public school placement 4. time and financial demands c. new york city mayoral responses to tuition reimbursement claims iv. securing quality special education for each new york city child a. vouchers 1. a brief explanation of vouchers and school choice 2. state special education voucher programs b. publicly funded special education attorneys c. public enforcement of the idea 1. the need for public enforcement 2. public enforcement in new york city through the public advocate v. conclusion columbia journal of race and law forum vol. 11 july 2021 no. 4 comment calculating the souls of black folk: predictive analytics in the new york city administration for children’s services j. khadijah abdurahman* in 1995, there were nearly 50,000 children removed from their families into the new york city administration for children’s services’ (acs) foster care system.1 the nyc acs’ forcible transfer of children from a protected group into another group may amount to genocide under article 2(e) of the genocide convention if formal review can demonstrate an “intent to destroy” the group “as such” or at least “in part.” rather than pursuing a citizen’s tribunal, or truth and reconciliation committee to assess the historic transfer of black children to other groups during this period by the child welfare system, acs has focused on collecting data from currently targeted populations in order to “predict who needs * j. khadijah abdurahman, abolitionist, tech impact fellow, ai now institute, nyu; assembling voices fellow, the american assembly, columbia university; co-founder of the otherwise school, human computer design and engineering, university of washington. it would not be possible to do this work without the village providing child care for me during these twin pandemics of covid-19 and state violence. thank you to fatoumata daou, my youngest son’s home attendant, luz leon, who provided community habilitation for my oldest son and my mother, mary schoen who continues to be the most supportive grandmother i could ask for. thank you to ayantu tibeso, rashida richardson, meredith whittaker, kurt mundorff and many others who helped me transition a stream of consciousness into a coherent narrative. finally, i’d like to acknowledge joyce mcmillan, movement for family power, stop lapd spying and mijente for the radical grassroots campaigns that make abolition a tangible possibility. there are too many people and movements to fit in this space, but it’s the baby mothers refusing to open the door without a warrant and the power of the people that continues to inform my thinking and imagination. 1 press release, n.y.c. administration for children’s services, fewer than 8,000 children in nyc’s foster care system—a historic low (feb. 14, 2020), https://www1.nyc.gov/assets/acs/pdf/pressreleases/2020/fostercare censusrelease.pdf [https://perma.cc/zuw9-97sj]. 76 colum. j. race & l. f. [vol. 11:75 prevention” services. this paper examines the family first prevention act’s legislative mandate to calculate the “souls of black folks” and the geographies of predictive analytics developed to serve this aim. using an abolitionist lens grounded in the epistemology offered by w. e. b. du bois’ souls of black folks, this argument moves beyond the fairness, accountability and transparency (fat) framework to propose strategies for dismantling the “new modes of surveillance and social control” manifested in nyc acs’ preventive turn. i propose a get out mathematics drawing from katherine mckittrick’s proposal to “count it out different” as the fugitive’s alternative to state sanctioned datafication. 2021] calculating the souls of black folk 77 i. introduction ............................................................................... 78 a. widening the digital net................................................ 78 b. predicting prevention (and its discontents) ................. 81 c. get out mathematics ..................................................... 84 ii. intent to destroy ..................................................................... 87 iii. creating “prevented” populations ........................................ 90 a. the federal family first prevention act ..................... 92 b. what are prevention services? ...................................... 94 c. when predictive analytics became the remedy for an abusive system ........................................................ 97 iv. acs’ considerations in building a predictive risk model .................................................................................. 102 v. geographies of prediction ..................................................... 104 a. what is safemeasures? ................................................. 106 vi. conclusion ............................................................................. 108 78 colum. j. race & l. f. [vol. 11:75 i. introduction a. widening the digital net figure 1. new york state, office of children and family services, racial categorization2 in july 2016, dj patil, the chief data scientist for the obama white house office of science and technology policy, asked gladys carrión, the 2013–2016 commissioner of new york city’s vast child welfare administration, what she thought of using predictive analytics in her agency.3 “it scares the hell out of me,” carrión said, inciting half nervous chuckles in the room.4 carrión continued, “i think about how we are impacting and infringing on people’s civil liberties.”5 she added that she runs a system “that exclusively serves black and brown children and families . . . i am concerned about widening the net under the guise that we are going to help them. how can we use these tools to keep children and families in communities together?”6 five 2 n.y. off. child. & fam. serv., 2020 monitoring and analysis profiles with selected trend data: 2016–2020, 7 (2020), https://ocfs.ny .gov/main/reports/maps/countiesz/new%20york%20state.pdf [https://perma .cc/mf3s-c233] 3 megan smith, the white house names dr. dj patil as the first u.s. chief data scientist, the white house (feb. 18, 2015, 4:48 pm), https://obamawhitehouse.archives.gov/blog/2015/02/18/white-house-names-drdj-patil-first-us-chief-data-scientist [https://perma.cc/7uq2-rw6e]. 4 devon ziminski, a ‘mind blowing’ experience at the white house foster care hackathon, imprint (may 31, 2016, 1:46 pm), https://imprintnews.org/featured/white-house-foster-care-hackathon/18511 [https://perma.cc/bfz8-xqbb]. 5 id. 6 id. 2021] calculating the souls of black folk 79 months later, in the wake of the highly publicized murder of zymere perkins by his parents, and despite multiple contacts with the new york city administration of children’s services (acs), carrión resigned.7 a public records request,8 submitted to acs in december 2019 for all documentation associated with the procurement, training, use policy, and funding associated with their implementation of predictive analytics, highlights the degree to which the agency resists its own inspection. consistent with previous reporting in propublica,9 the agency dragged its feet in response to the foia request, requested multiple extensions, and a full nine months later released three heavily redacted documents related to its contracts with new york university (nyu) and the city university of new york (cuny). the grounds on which acs specifically refused to provide the predictive analytics algorithm was new york state public officers law § 87(2)(f), which provides that the requested records are exempt from disclosure because the disclosure of the records “could endanger the life or safety of any person.”10 carrión’s concern about a widening digital net ensnaring black and brown11 families under the guise of helping them appears 7 rich calder et al., zymere perkins’ sickening death exposes nyc’s unforgivable child welfare failures, n.y. post (dec. 14, 2019), https://nypost.com/2019/12/14/zymere-perkins-sickening-death-exposes-nycsunforgivable-child-welfare-failures [https://perma.cc/u9ew-gyqa]. 8 beryl lipton, predictive analytics at nyc administration for children’s services, muckrock (dec. 1, 2019), https://www.muckrock.com/foi /new-york-city-17/predictive-analytics-at-nyc-administration-for-childrensservices-83900/ [https://perma.cc/4zdw-g7wc]. 9 joaquin sapien, foiled by foil: how one city agency has dragged out a request for public records for nearly a year, propublica (apr. 21, 2016), https://www.propublica.org/article/how-city-agency-dragged-out-request-forpublic-records-for-nearly-a-year [https://perma.cc/9z2j-tdwk]. 10 see, e.g., asian am. legal def. & educ. fund v. ny city police dep’t, 5 n.y.s.3d 13 (app. div. 2015); bellamy v. ny city police dep’t, 930 n.y.s.2d 178 (app. div. 2011). 11 n.y. off. child. & fam. serv., supra note 2, at 7. new york state classifies race and ethnicity in “into mutually exclusive categories. in the process, children identified as white/hispanic or black/hispanic are counted under latino and not in white or african american.” id. the non-specific racial category “brown” is being invoked by the author as we do not have truly representative data in new york state by race but the condition of mutually exclusive race/ethnicity categories suggests black children are under counted. the table listed in appendix a suggests those identified as latino are primarily puerto rican ethnicity but the racial composition is unclear. 80 colum. j. race & l. f. [vol. 11:75 warranted, based on a review of the public record in search of the answers that the child welfare agency refused to provide. examining the series of changes enacted by acs following gladys carrión’s resignation provides insight into acs’ implementation of, and vision for, predictive analytics. in february of 2017, new york city mayor bill deblasio recruited david hansell from kpmg12 to be the new commissioner of acs. the appointment came in the wake of a series of high profile child deaths,13 multiple reports14 from the department of investigation (doi) criticizing the agency’s systemic failures and violations of the law, and a class action lawsuit filed on behalf of all children in new york city foster care claiming, “acs and ocfs [new york state office of children and family services]are causing irreparable harm to children in custody by failing to protect children from maltreatment, failing to ensure services provided are effective and of acceptable quality, and failing to ensure appropriate placements.”15 it’s in this context that hansell declared that he would conduct his own “top-tobottom review of acs’s protective and preventive functions to strengthen what’s working and to change what isn’t.”16 this review does not seek to reckon with the agency’s role in shattering bonds and regulating17 families. rather, it sought to 12 hansell was the former head of the global human & social services center of excellence at kpmg. there, he led a team working with acs since 2012 to consolidate their administrative data. they had also worked with the agency to develop a new rfp process so it’s unsurprising they were immediate beneficiaries of the system they helped to create once hansell took office. 13 jeff mays, 10 kids known to acs died in three months this summer, stringer audit says, dna info (dec. 22, 2016, 3:15 pm), https://www.dnainfo.com/new-york/20161222/hamilton-heights/stringer-auditacs-zymere-perkins-jaden-jordan-de-blasio [https://perma.cc/f29h-hkrc]. 14 mark g. peters, doi investigation of child fatalities and other injuries reveals legal and practice violations by the city administration for children’s services (2016), https://www1.nyc.gov/assets /doi/reports/pdf/2016/2016-05-03-14-acs-report-final.pdf [https://perma.cc/th8k-g4rd]. 15 letitia james, a better childhood, fact sheet: elisa w. v. city of new york (2015), https://www.clearinghouse.net/chdocs/public/cwny-0009-0002.pdf [https://perma.cc/7qwa-j8sn]. 16 nikita stewart & jacey fortin, de blasio picks new commissioner for troubled child welfare agency, n.y. times (feb. 21, 2017), https://www.nytimes.com/2017/02/21/nyregion/david-hansell-new-yorkadministration-for-childrens-services.html [https://perma.cc/wc5x-hsgj]. 17 dorothy roberts, abolishing policing also means abolishing family regulation, imprint (june 16, 2020, 5:26 am), https://imprintnews.org/child2021] calculating the souls of black folk 81 quantify and manage the black and brown communities it deems at risk. b. predicting prevention (and its discontents) figure 2. chapin hall, family first readiness, array of data analytics for family first provisions18 the family regulation system employs two separate layers of prediction. the first is composed of algorithms whose developers claim they predict the future prospects of a growing, racialized “underclass.” the second can be seen in the transition to a prevention services model—in which families deemed “at risk of imminent removal” (meaning that their children would be taken and placed into foster care) are enrolled instead into the child welfare roster under the guise of prevention, and subject to surveillance, monitoring, and other forms of coercive control. predictive analytics is not just “coding over the cracks”19 in the broken foundation of the child welfare system. the differential response programs that child welfare departments in a number of states have adopted— sorting parents into risk welfare-2/abolishing-policing-also-means-abolishing-family-regulation/44480 [https://perma.cc/n26n-qc8c]. 18 chapin hall, at university of chicago, bridging the gap between what we know and what we do (2016), https://www .chapinhall.org/wp-content/uploads/chapin-hall-family-first-framework.pdf [https://perma.cc/4q6l-a5ua]. 19 stephanie k. glaberson, coding over the cracks: predictive analytics and child protection, 46 fordham urb. l.j. 307, 310 (2019). 82 colum. j. race & l. f. [vol. 11:75 categories— animates child welfare agencies’ use of predictive analytics. providing in-home services to those identified as low risk of maltreating their children and reserving more coercive forms of surveillance and foster care for parents rated high risk might seem like progressive policy on the surface. but as dorothy roberts points out: [t]hese dual track systems based on risk assessments can have precisely the opposite effect, sweeping into the carceral net low-risk individuals who previously would not have been on the government’s punitive radar at all. struggling parents who are targeted by automated models become subject to agency monitoring and therefore more vulnerable to losing custody of their children even though they are unlikely to harm them. 20 public sector adoption of automated decision systems (ads) has been accompanied by concern with the technical complexity and opacity inherent to black boxes. civil rights attorney, rashida richardson’s seminal report, confronting black boxes: a shadow report of the new york city’s automated decision system task force21 deploys22 the term as a double entendre, referring to both “the opaque nature of government processes and data-driven technologies.”23 foregrounding opacity has informed policies demanding greater transparency of algorithmic systems and the data collection it requires. counterintuitively, this discursive turn has made it more difficult for the public to discern the “new modes of state surveillance and 20 dorothy e. roberts, digitizing the carceral state, 132 harv. l. rev. 1695, 1723 (2019) (book review). 21 ai now institute, confronting black boxes: a shadow report of the new york city automated decision system task force (rashida richardson ed., 2019), https://ainowinstitute.org/ads-shadowreport-2019.pdf [https://perma.cc/888d-xdcx]. unlike the government task force, the report makes specific recommendations for accountability of city agencies including that of the administration for children’s services (acs). 22 elizabeth r. petrick, building the black box: cyberneticians and complex systems, 45 sci., tech. & hum. values 575 (2020). this report reflects the most commonly understood definition of black box. in cybernetics and in electrical engineering, these are described as models where inputs and outputs are known but the internal processes producing given outputs from given inputs are unknown. 23 id. at 2. 2021] calculating the souls of black folk 83 control”24 constructed through ads deployment. demands for transparency do not just “privileg[e] a type of accountability that needs to look inside . . . [rather than] . . . across . . . sociotechnical systems,”25 they elide holistic analysis of how governance is inextricably linked to policing and fundamentally desires to “produce [the] truth of the social world.”26 transparency doesn’t contest the state’s authority to do so, rather, it “reinforce[s] . . . [dominant] narratives about . . . what it mean[s] to maintain order in a society.”27 the garbage in, garbage out debate makes sense, within a narrow frame. racist police departments can’t help but produce “dirty data.”28 this flawed data creates a feedback loop, codifying the historic legacy of america into predictive policing systems, which in turn directs the police to be in the neighborhoods they already occupy. there’s an ease in which we can make out the automating of inequality, but it’s much harder to see the infrastructure or the digital poorhouse29 being built through an iterative process of classifying and predicting the futures of black, indigenous30 and poor people. ads accelerates and scales institutional racism while simultaneously building new forms of containment and discipline. both must be understood together, if we are to map the implications of the turn to automated systems and the possibilities for resistance and refusal. 24 roberts, supra note 20, at 1699. 25 mike ananny & kate crawford, seeing without knowing: limitations of the transparency ideal and its application to algorithmic accountability, 20 new media & soc’y 973, 974 (2016) (emphasis omitted). 26 we be imagining podcast, tired of the future, time for the now (with josh scannell), am. assembly (may 29, 2020), https://americanassembly .org/wbi-podcast/tired-of-the-future-time-for-the-now [https://perma.cc/yw9fjnea]. see also ingrid burrington, policing is an information business, urb. omnibus (june 29, 2018), https://urbanomnibus.net/2018/06/policing-is-aninformation-business/ [https://perma.cc/3y9g-taxb]. 27 we be imagining podcast, supra note 23. 28 rashida richardson et al., dirty data, bad predictions: how civil rights violations impact police data, predictive policing systems, and justice, 94 n.y.u. l. rev. 192 (2019). 29 virginia eubanks, automating inequality 184 (2017). 30 n.y. off. child. & fam. serv., supra note 2, at 7. less than 0.3% of children in new york state foster care were classified as native american/alaska native but this is not reflective of national trends where children from indigenous nations are removed from their families at disproportionate rates. 84 colum. j. race & l. f. [vol. 11:75 the 2018 federal family first prevention services act (ffpa) financially incentivizes state child welfare agencies to transition from a primarily “removal” or separation-based system to a prevention services model. again, while the dunantist31 humanitarian language of “prevention” and “support for the poor” sounds progressive, beneath the rhetoric, we see a very different material reality. and we witness how a model labeled “prevention services” actually functions to extend the scope of the carceral state. in the literal sense, preventing family separations is a noble commitment. however, we have to ask why the us immigration and customs enforcement (ice) and municipal child welfare agencies separate families to begin with. is it because they have not had the good fortune to be enrolled into the supervision of agencies that operate the foster care system? or is it something else? in answering this question, we must recognize something that is not immediately apparent in the banal language of the bill: that expanding data collection, risk assessments and predictive analytics is central32 to the project of “predicting who needs prevention” and memos guiding implementation of the family first prevention act. c. get out mathematics33 while this disconcerting realization might appear as cause for despair, it points to a bracing and urgently necessary revelation: it is impossible to calculate the souls of black folk. indeed, the actuarial approach to human decision making34 continuously reproduces a mythology35 of black inferiority, in part by codifying a transposition of demographic traits that 31 stuart gordon & antonio donini, romancing principles and human rights: are humanitarian principles salvageable?, 97 int’l rev. red cross 77 (2016), https://international-review.icrc.org/sites/default/files/irc_97_1-2-5.pdf [https://perma.cc/x59y-rbzk]. 32 chapin hall, supra note 18. 33 katherine mckittrick, mathematics black life, 44 black scholar 16 (2014), https://ageingcompanions.constantvzw.org/books/mathematics_black _life.pdf [https://perma.cc/b6k3-96ax]. here, i’m animated by mckittrick’s question: “what if we trust the lies—she says she was born free—and begin to count it out differently?” in tandem with jordan peele’s film get out (universal pictures 2017). 34 robyn dawes et al., clinical versus actuarial judgment, 243 science 1668 (1989). 35 megan j. wolff, the myth of the actuary: life insurance and frederick l. hoffman’s race traits and tendencies of the american negro, 121 public health reports 84 (2006), https://www.ncbi.nlm.nih.gov/pmc/articles /pmc1497788/ [https://perma.cc/jc43-m26a]. 2021] calculating the souls of black folk 85 correlate to poor social outcomes as the cause of poor social outcomes. the objectivist rhetoric surrounding big data36 directs us to adjudicate the downstream social impact of emerging technologies, asking questions like: does the allegheny family screening tool (afst) produce fair outcomes? who do we hold accountable if it doesn’t? is there enough transparency about the algorithm and its implementation for us to determine the social impact? however, i argue that the fairness, accountability and transparency framework (fat), while helpful as a narrow set of methods for adjudicating downstream impact, does not address the core structural issues at work; it only allows us to name and manage the immediate predicament we find ourselves in. instead, we must consider “[t]he epistemological economy in which souls [of black folks] operates . . . [and] calls for thinking [of] a world other than the familiar world master named as objects and things.”37 pragmatists may find this call for epistemic correction frivolous. but allowing the carceral state to define the limit of our imagination will ensure that our efforts to dismantle the “digital poorhouse” will only produce an apparatus to regulate and manage its expansion. accepting the terms on which these technologies are developed or deployed, limits redress to tinkering with the parts that compose them. the remedy sought by those harmed by stochastic recognition is not increased accuracy. in fact, historically marginalized people are better38 positioned to perceive how these systems are mediated by race and undermine human autonomy39 by design. what dominant technical perspectives interpret as failure or intractable second order effects40 of automation may also be a site of fugitive 36 dominik balazka & dario rodighiero, big data and the little big bang: an epistemological (r)evolution, frontiers in big data (sept. 18, 2020), https://doi.org/10.3389/fdata.2020.00031 [https://perma.cc/jfc4-zcy2]. 37 kevin thomas miles, place post-paradise: poetic epistemology in the souls of black folk, 15 new centennial rev. 83, 86 (2015). 38 carla shedd, unequal city: race, schools and perceptions of injustice 59 (2015). 39 christopher poulin et al., response to: autonomous vehicles, ingenia (mar., 2015) https://www.ingenia.org.uk/ingenia/issue-62/letters [https://perma.cc/ww5n-neaw]. 40 andrew j. hawkins, deadly boeing crashes raise questions about airplane automation, verge (mar. 15, 2019), https://www.theverge.com/2019/3 /15/18267365/boeing-737-max-8-crash-autopilot-automation 86 colum. j. race & l. f. [vol. 11:75 possibility.41 stefano harvey and fred moten assert42 in the undercommons, “knowledge of freedom is (in) the invention of escape, stealing away in the confines, in the form of a break.” in other words, undermining the fiction that carceral governance43 produces (and relies on) about the value (and devaluation) of human life is the only path to imagining, and charting, a way out and beyond. even absent full transparency from the child welfare system, public records alone document the rapidly expanding reach of the “digital poorhouse.” roberts’ insight that, “racism is central to the carceral state’s reliance on prediction” guides us to see how assumptions of black pathology are rearticulated as risk management. it is important to remember that the official statistics may offer a partial tally of the violence (enacted onto families in the name of “care”) but it does not record black agency. the indeterminacy of black life—classified as a negative externality for predictive risk modeling by the state (and capital)—is the basis of a “get out mathematics” which recognizes escape’s omission from the ledger. 41 fred moten & stefano harney, the undercommons: fugitive planning & black study 51 (2013). 42 id. 43 carla shedd, unequal city: race, schools and perceptions of injustice (2015). 2021] calculating the souls of black folk 87 ii. intent to destroy figure 3. new york state, office of children family services44 every time a familial bond is shattered, it’s a tragedy. this loss is under-appreciated by those unaffected because it happens outside of public view with the highest rates of removal clustered in a handful of neighborhoods. caseworkers operate like police officers under another name45. their routine scope of 44 new york state office of children family services (@nysocfs) (nov. 29, 2020, 10:10 a.m.), https://twitter.com/nysocfs/status /1333063167891554311 [https://perma.cc/lj2g-bqlm]. 45 tarek z. ismail, the consent of the compelled: child protective agents as law enforcement officers (july 7, 2021) (unpublished manuscript) (on file with author). 88 colum. j. race & l. f. [vol. 11:75 work46 includes intruding into the intimate spaces of black families, strip searching all children in the home, demanding entry without a warrant, without a reading of one’s miranda rights, nor providing an attorney at the onset of an investigation. this image of officers of the state intruding into the home— claiming their presence as care and separating black families for their own safety—is not simply analogous to plantation logics; it is their evolution. 47 the passage of the 1997 adoption and safe family act (asfa) expedited the termination of parental rights for children removed into foster care, producing generations of legal orphans. black children are most likely to have their parents’ rights terminated, most likely to languish in care without adoption once the rights are terminated, most likely to be living in congregate care settings, and most likely to experience multiple foster boarding home placements. the circulation of classifieds advertising children in foster care— rendered legal orphans by asfa—for adoption, embodies the simultaneous discarding and commodifying of children who come into care. in order to understand the impact that family separation continues to have from its height to the present, it’s important to remember that the 50,000 children who were in foster care in 1996 are now between 25 and 46 years old. and it’s important to recognize that the number one predictive factor for a child being investigated by child protective services is that their mother had a previous child welfare history. this means that many survivors of the system, whose family bonds were shattered as children, find themselves ageing out of foster care only to experience their own children being taken by the same system. the child welfare system is not biased, or “unfair”––it is racist. as ruth wilson gilmore clearly explains: racism is the state-sanctioned and/or extralegal production and exploitation of group-differentiated vulnerability to premature death.48 working with gilmore’s insight, we see the outlines of child welfare’s “cradle to the grave” system, how it produces vulnerability first through collective 46 victoria copeland, “it’s the only system we’ve got”: exploring emergency response decision-making in child welfare, 11 colum. j. race & l.f. 43 (2021). 47 katherine mckittrick, on plantations, prisons, and a black sense of place, 12 soc. & cultural geography 947 (2011). 48 gilmore ruth wilson, golden gulag: prisons, surplus, crisis, and opposition in globalizing california (2007). 2021] calculating the souls of black folk 89 surveillance, separation, and abandonment, and then imprisonment, disability and death. to encounter this system is to see what sharpe defines as the wake: living in/the wake of slavery is living ‘the afterlife of property’ and living the afterlife of partus sequitur ventrem (that which is brought forth follows the womb), in which the black child inherits the non/status, the non/being of the mother. that inheritance of a non/status is everywhere apparent now in the ongoing criminalization of black women and children.49 the scale at which the new york city administration for children’s services (acs) has forcibly removed and continues to transfer black children into “care” is forecast by “the weather, [where] antiblackness is pervasive as climate.”50 it also may meet the criteria of cultural genocide.51 article 2(e) of the genocide convention lists “[f]orcibly transferring children of the group to another group”52 as one of the acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group to assess whether genocide has been committed. notably, the current legal mandate requires a consideration of the “the best interest of the child”.53 this individualist conception of safety is at odds with the genocide convention’s commitment to preserving the group. as legal scholar kurt mundorff’s substantive research on genocide indicates, it is clear that a citizen’s tribunal is needed to assess54 why so many black 49 christina sharpe, in the wake: on blackness and being 15 (2016). 50 id. at 106. 51 kurt mundorff, a cultural interpretation of the genocide convention (2020). 52 convention on the prevention and punishment of the crime of genocide, art. 2(e), dec. 9, 1948, s. exec. doc. o, 81-1 (1949), 78 u.n.t.s. 277. 53 n.y. fam. ct. § 1027 (2016). 54 civil rights congress, we charge genocide: the historic petition to the united nations for relief from a crime of the united states government against the negro people (1951). it’s worth noting that the civil rights commission submitted a complaint to the united nations general assembly charging that the united states government’s intentional destruction of negro people amounts to genocide. w. e. b. du bois was among the leaders presenting the complaint to the un in 1951 but the un refused to acknowledge receipt of the petition. this refusal is frequently attributed to the united states’ outsized influence over the un and longstanding reservations to the genocide convention. https://codes.findlaw.com/ny/family-court-act/fct-sect-1027.html%20n.y.%20fam.%20ct.%20%c2%a7%201027 90 colum. j. race & l. f. [vol. 11:75 children have been removed from their families in new york city and to what degree they have been transferred into placements outside their culture. iii. creating “prevented” populations power is relational.55 if building up a new model of child “welfare” produces inequity for some, it also produces benefits for others. to understand how “prevented” populations are created, we must examine how the incentive structures that animated previous models of child welfare have shifted, and what incentives are being constructed in their place. the “epic struggle to change the child welfare system”56 did not begin with the development of new technologies. in fact, the history of endless reforms in the child welfare system may make it hard to appreciate what is qualitatively new about the “digital poorhouse” and the narrative move to codify “prevention” as the primary disposition for families who encounter it. in this section, we will review the implications of the family first prevention act, explain what preventive services are and how acs in particular has responded to the legislation. similar to subfelony enforcement—where a substantial number of actions terminate in a disposition that involves no jail time or criminal conviction—57the majority of child maltreatment investigations today do not result in removal. this fact is not offered to minimize those that do, nor the plight of the more than 7600 children currently in new york city foster care, the majority of whom are black and from neighborhoods with the highest rates of arrest and covid-19 related deaths. rather, understanding the vast amount of investigations that do not result in removal helps us heed hausmann’s guidance on the value of understanding these less visible consequences of policing: [e]xclusively focusing on the historically and internationally unprecedented numbers of people the united states puts into prison and jails cells understates the reach of the criminal justice 55 ruha benjamin, race after technology: abolitionist tools for the new jim code 53 (2019). 56 nina bernstein, the lost children of wilder: the epic struggle to change foster care (2001) 57 issa kohler-hausmann, misdemeanorland: criminal courts and social control in an age of broken windows policing 2 (2018). 2021] calculating the souls of black folk 91 system and, in some sense, misrepresents the modal criminal justice encounter . . . . [i]f we want to understand the precise ways the criminal justice system functions as a form of social control, we need to look beyond custodial sentences and even criminal convictions.58 while over 84,000 children were investigated59 by nyc acs in 2019, only 4% of those children were removed from their families and placed into foster care. we must document the reaches of this carceral system, which enrolls subjects, even if it does not remove children from parents. exclusively focusing on removal to assess the function of child welfare produces an incomplete picture of how the system operates. if we more closely examine acs data for 2019, over 45,000 children were enrolled in preventative services.60 there are almost as many children enrolled in preventive services as there were children removed into foster care during the peak of family separations in the late 1990s. the prevention services roster in 2019 reflects more than 22% of all nyc families living in poverty.61 these are the only numbers available without having access to data disaggregated by race—given the concentration of preventive service enrollment in neighborhoods that are “majority minority” the percentage of families who are poor and black or latinx enrolled in prevention is likely much higher. joyce mcmillan, impacted parent and executive director of the parent legal action network (plan), is vocal about communities needing “support not surveillance.” the public conversation around allegheny’s use of predictive analytics has raised alarms for mcmillan, as well as other advocates and 58 id. 59 new york city administration for children’s services, abuse/neglect investigations by community district, 2015–2019 (2019), https://www1.nyc.gov/assets/acs/pdf/data-analysis/abuseneglectreport15to19 .pdf [https://perma.cc/543r-97ql]. 60 new york city administration for children’s services, children served by child welfare prevention services by home borough/cd (2019), https://www1.nyc.gov/assets/acs/pdf/child_welfare/2020 /childrenreceivingpreventiveservicesbycdcy2019.pdf [https://perma.cc/qb9j-hrx6]. 61 the annie e. casey foundation: kids count data center, children in poverty (100 percent poverty) in new york city, https://datacenter.kidscount.org/data/tables/43-children-in-poverty-100percent-poverty [https://perma.cc/yz2z-5dqe]. https://www1.nyc.gov/assets/acs/pdf/data-analysis/abuseneglectreport15to19.pdf 92 colum. j. race & l. f. [vol. 11:75 attorneys, but how exactly is predictive analytics being implemented by acs in relation to preventive services? what happens to the “prevented” populations and where do we look to find out? a. the federal family first prevention act a history of child welfare reform—in particular the piloting of services other than foster care by state child welfare agencies—predates the 2018 passage of the family first prevention act. however, it’s worth focusing on the act as it defines what prevention services are, while displacing the previous incentive structure and corresponding motivations that propelled state child welfare agencies. introduced to the house as bill h.r. 253 in january of 2017 by florida’s republican representative, vern buchanan, the purpose of the act is framed around the overhaul of child welfare financing: to amend parts b and e of title iv of the social security act to invest in funding prevention and family services to help keep children safe and supported at home, to ensure that children in foster care are placed in the least restrictive, most family-like, and appropriate settings, and for other purposes.62 understanding the implications of changes enacted by child welfare’s new guard doesn’t require insight into the psychology of system administrators. rather, we must survey the “prevention-focused infrastructure” of legislation finances.63 there are 8 parts of ffpa. part 1: prevention activities under title iv–e: states have the option to use title iv-e to prevent children’s entry into foster care, is arguably the most significant component of the legislation. this part is what provides, in theory, an opportunity for states to receive unlimited federal matching funds for children and their families. prior to the passage of ffpa, federal funding for foster care was based on family income and the state’s federal medicaid assistance program (fmap) eligibility rate. in some states, the fmap rate 62 family first prevention services act of 2017, h.r. 253, 115th cong. § (2017). 63 family first prevention services act, nat’l conf. state legislatures (apr. 1, 2020), https://www.ncsl.org/research/human-services /family-first-prevention-services-act-ffpsa.aspx [https://perma.cc/fjg8-tsq5]. 2021] calculating the souls of black folk 93 has meant that as few as 38% of children placed into foster care are determined eligible for federal matching funds. ffpa removes all means testing, providing federal matching to states for 100% of families enrolled into preventive services. while the criteria for removing a child from their family is arguably subjective, the criteria for determining whether a child is “a candidate for foster care” is even more amorphous.64 ffpa and the program instructions released by the administration for children and families (acf) allow state65 and native american nations66 (referred to as tribal agencies in the legislation) full discretion in determining candidacy. the bill describes candidacy as a child who is at risk for imminent removal but can stay safely in the home if given “evidence-based prevention services.”67 child welfare agencies that have zero incentive to classify families as anything other than at risk, given the funding this legislation put on the table, are the decision point for approving enrollment. to understand the scale of this financing overhaul—in addition to the removal of means testing and broadening of criteria of who can be enrolled into child welfare supervision—we must understand how the act enables entire households, including the adult members, to be enrolled into prevention services with federally matched funds. the act clearly changes the financial incentive structure68 in order to motivate child welfare agencies to transition to a primarily prevention services model. the impact of the legislation is not only a reallocation of 64 family first prevention services act: candidacy by jurisdiction, chapin hall & casey family programs (mar. 12, 2020), https://www.chapinhall.org/wp-content/uploads/pdf/jurisdictional-candidacy3.12.20.pdf [https://perma.cc/8zz6-x33m]. 65 u.s. dep’t health & hum. serv., admin. child., youth, & fam., acyf-cb-pi-19-06 (july 18, 2019), https://www.acf.hhs.gov /sites/default/files/documents/cb/pi1906.pdf [https://perma.cc/nn6s-44ga]. 66 u.s. dep’t health & hum. serv., admin. child., youth, & fam., acyf-cb-pi-18-10 (nov. 30, 2018), https://www.acf.hhs.gov/sites /default/files/documents/cb/pi1810.pdf [https://perma.cc/2z8b-p4yu]. 67 id. 68 national conference of state legislators, the family first prevention services act: reforming foster care, facebook (aug. 5, 2019), https://www.facebook.com/ncslorg/videos/709946162790123 [https://perma.cc /r7qk-j4bu]. the bill has some detractors, including wisconsin state republican representative joan ballweg, who claimed ffpa is too restrictive and wisconsin would have preferred block grants. block grants provide states greater autonomy in determining how funding is implemented. 94 colum. j. race & l. f. [vol. 11:75 federal funding, we also have to attend to the formalizing of prevention services’ definition. b. what are prevention services? the four types of programs eligible for title iv-e funding under the new act are: (1) mental health prevention and treatment services; (2) substance abuse prevention and treatment services provided by a qualified clinician; (3) in-home parent training/counseling; and (4) kinship navigator programs.69 acf and the us department of health and human services have established a title iv-e prevention services (family first) clearinghouse to rate and review applicant programs. the clearinghouse rates programs as well supported, supported, promising or not supported based on a systematic literature review. the three contributing factors to ratings are: (1) risk of harm; (2) duration of effects after treatment is ended; and (3) a requirement that the “favorable evidence for a program or service . . . [that was] obtained . . . [in a] usual care or practice setting.”70 an odd quirk of the clearinghouse, is that by its own admission, all of the highest rated programs list more reviews demonstrating71 that they are ineffective or harmful than studies demonstrating “favorable effects.” in other words, prevention services are extremely criteria driven irrespective of whether they’re helpful or harmful as per their stated mission. the evidence based medicine (ebm) movement—that the act uses to define and evaluate preventive services—advocates for a focus on greater objectivity in medical decision making.72 69 children’s defense fund et. al, implementing the family first prevention services act: a technical guide for agencies, policymakers and other stakeholders (2020), https://www .childrensdefense.org/wp-content/uploads/2020/07/ffpsa-guide.pdf [https://perma.cc/t76v-9dy6]. 70 title iv-e prevention services clearinghouse, handbook of standards of procedure, version 1.0 (2019), https://preventionservices .abtsites.com/themes/ffc_theme/pdf/psc_handbook_v1_final_508_compliant.pdf [https://perma.cc/9edd-z76c]. 71 title iv-e prevention services clearinghouse, find a program or service https://preventionservices.abtsites.com /program?combine_1=&prograting%5b1%5d=1 [https://perma.cc/m5aa-u923] (last visited aug. 20, 2021). 72 american psychological association, template for developing guidelines: interventions for mental disorders and psychosocial aspects of physical disorders (1995). this movement began in the 1970s and was revived in 1995 by the apa white paper. 2021] calculating the souls of black folk 95 the methodological73 and epistemic74 limitations of ebm are well explored in the literature: “[f]ailure to acknowledge the limitations of clinical trials and systematic reviews has limited their applicability to individual patients’ circumstances;”75 overreliance on mechanistic forms of knowledge production and cultural biases about what qualifies as evidence. on one hand, the most interesting aspect of ffpa is that preventive services are all behavioral health programs typically covered by medicaid.76 this exemplifies the “therapeutic spirit of neoliberalism,” which seeks power during profound socioeconomic inequity through management of citizen’s subjectivity.77 it is also reminiscent of protest psychosis,78 “a condition in which the rhetoric of the black power movement drove ‘negro men’ to insanity.”79 in the protest psychosis: how schizophrenia became a black disease, jonathan metzl argues that because racism is “historically embedded into the very dna of healthcare . . . . [f]ocusing on the individual obscures the impact of the structural, while putting undue pressure on even well-intentioned patients or doctors to solve problems in tenminute office visits that have taken decades or even centuries to evolve.”80 73 glenn d. shean, some methodological and epistemic limitations of evidence-based therapies, 32 psychoanalytic psych. 500, 500–16 (2015). 74 r e ashcroft, current epistemological problems in evidence based medicine, 30 j. med. ethics 131, 131–35 (2004). 75 desmond j. sheridan & desmond g. julian, achievements and limitations of evidence-based medicine, 68 j. am. coll. cardiology 204, 204– 13 (2016). 76 new york state kinship navigator, https://www .nysnavigator.org/?page_id=542z [https://perma.cc/39c3-d6fb] (last visited mar. 5, 2021). the exception is “kinship navigator programs” which are state based information hotlines for kinship caregivers. 77 roger foster, the therapeutic spirit of neoliberalism, 44 pol. theory 82, 82–105 (2016). 78 this term originated from new york psychiatrists walter bromberg and franck simon. walter bromberg & franck simon, the “protest” psychosis: a special type of reactive psychosis, 19 arch gen psychiatry 155 (1968). 79 jonathan m. metzl, the protest psychosis: how schizophrenia became a black disease 100 (2009). 80 id. at 202. 96 colum. j. race & l. f. [vol. 11:75 figure 4. johnathan m. metzl, protest psychosis: how schizophrenia became a black disease81 however, the most critical aspect of the legislation, hidden in the footnotes, is that title iv-e funds are the payor of last resort for prevention services. this means that states who enroll families into prevention services must first attempt to fund the services through medicaid, temporary assistance for needy families (tanf) or any other possible source prior to being approved for title iv-e funds. if you take away the services funded by medicaid from the core section of the family first prevention act, all that remains of the “prevention-focused infrastructure” is data collection and predictive risk modeling. therefore, “the prevented populations” are people enrolled into community surveillance programs and a site of discipline by the therapeutic state. 81 id. at xiv. 2021] calculating the souls of black folk 97 c. when predictive analytics became the remedy for an abusive system in 2016, zymere perkins was murdered by his stepfather and mother despite the family having been investigated by acs multiple times. this was followed by what richard wexler describes as a foster care panic or a surge in family separations by local child welfare agencies as a knee-jerk reaction to a highprofile death of a child.82 however, as wexler points out, these media narratives omit that a child is more likely to be seriously injured or murdered while in foster care than with their parents—who most often come to the attention of child welfare agencies due to poverty, and its pressures on domestic life, not due to inherent inability as parents. this double violence: first separation from the family, and then placement into “care,” where children in custody of acs frequently encounter new forms of abuse and abandon/ment—was the basis for the class action lawsuit filed in 2015, elisa w., et al. v. the city of new york.83 the state agreed to 7-year settlement84 in response to the class action lawsuit while acs refused. a central feature of the settlement agreement, was ocfs would designate an independent monitor to assess acs’s compliance with the guidance set forth in a consent decree.85 the same month hansell was appointed as commissioner of acs, kroll—a global investigative and risk management corporation—was selected by ocfs to serve as the independent monitor.86 eight months later, acs hailed kroll’s newly-published report in a press release: “independent monitor’s report shows “the steps we’ve been taking are the right ones.”87 but an 82 richard wexler, panic in foster care, l.a. times (sept. 16, 2009, 12:00am), https://www.latimes.com/archives/la-xpm-2009-sep-16-oe-wexler16story.html [https://perma.cc/l2gp-s8xj]. 83 elisa w. v. city of n.y., no. 15 cv 5273-lts-hbp, 2016 u.s. dist. lexis 123332 (s.d.n.y. sep. 12, 2016). 84 consent decree, elisa w. v. city of n.y., at ¶3.2. 85 id. 86 melissa russo, exclusive: nyc pays significant sum to firm tasked with reforming city’s embattled administration for children’s services, nbc new york (may 4, 2017), https://www.nbcnewyork.com/news/local /administration-for-childrens-services-scandal-cases-abuse-consultant-pay-costnew-york-city-mayor-bill-de-blasio/121675/ [https://perma.cc/f3p2-edev]. 87 press release, n.y.c. administration for children’s services, acs: independent monitor’s report shows “the steps we’ve been taking are the 98 colum. j. race & l. f. [vol. 11:75 important question was left unanswered: whose risk is kroll mitigating, responding to, and remediating? the report makes no mentions of the extreme racial disproportionality, delayed permanency in the form of adoption or reunification and complex developmental trauma it causes for children and families within the new york city child welfare system––the claims that formed the legal pretext for their appointment as independent monitor. the kroll report does dedicate a section to praising acs for using predictive analytics: acs is currently in the process of implementing safe measures, an innovative web-based data dashboard developed by the nccd [the national council on crime and delinquency],88 a non-profit research organization. safe measures will provide acs a platform for using predictive analytic models recently developed by acs and its academic partners at the university of chicago, city university of new york and new york university. each of these predictive models uses approximately 170 different data points, such as: the number of prior acs cases involving a family; the number of times the family received preventive services; the ages of the parents and children; the number of siblings; the types of allegations and priority codes, etc., to determine what variables correlate to adverse outcomes and what combinations of variables are associated with the greater likelihood of such outcomes occurring.89 kroll recommends improving this practice by changing interagency data sharing protocols for example between acs and the new york city housing authority or the new york police department (nypd) because “[t]hese [additional] data points right ones” (dec. 12, 2017), https://www1.nyc.gov/assets/acs/pdf/pressreleases /2017/independantreport.pdf [https://perma.cc/3g4b-auc6]. 88 evident change nccd was the acronym for the national council on crime and delinquency. in november 2020, the national council on crime and delinquency and the children’s research center became evident change. 89 kroll, kroll report: the new york city administration for children’s services 19 (2017) (emphasis added), https://ocfs.ny.gov/main /reports/2017-nyc-acs-report-kroll.pdf [https://perma.cc/9jm4-wkng]. https://www.evidentchange.org/ 2021] calculating the souls of black folk 99 could be used by acs, in combination with connections90 data, to develop additional predictive analytic models that would further identify factors that place families at risk. this would afford both acs and the respective agency the opportunity to take corrective action proactively.”91 this narrative assumes that the dangers to children and their families are located within them and their communities, rather than in the carceral continuum—of which acs is a part of—which produces conditions of unsafety through separation, surveillance, and investigation. it seeks to access data collected, and created, by the nypd, but not data reflecting the frequency of which the nypd murders and brutalizes black children. it seeks data collected, and created, by the new york city department of homeless services on the behavior of their family “clients,” but it does not seek to integrate data on the squalid conditions of dhs family shelters which jeopardize the safety of children.92 as christina sharpe writes: put another way, living in the wake means living in and with terror in that much of what passes for public discourse about terror we, black people, become the carriers of terror, terror’s 90 n.y. state off. child. serv., connections, https://ocfs.ny.gov /connect/ [https://perma.cc/m5hw-gz27] (last visited mar. 13, 2021). the new york state office of children and family services (ocfs) is responsible for overseeing new york’s child welfare system and services. child welfare services are provided through 58 local departments of social services (ldss) and over 350 voluntary and preventive services agencies. caseworkers and other staff from local districts and agencies use a case management computer system called connections to document child welfare activities. the connections system is part of a federal initiative called the statewide automated child welfare information system (sacwis). in 1993, the federal government provided financial incentives for states to develop statewide automated child welfare processes in an effort to provide more efficient and effective administration of programs and federal reporting. many other states have similar systems with other names. by law, a sacwis program is required to support the reporting data to the adoption and foster care analysis reporting system (afcars) and the national child abuse and neglect data system (ncands). connections was designed to become a single, statewide, integrated system for the collection and recording of child protective, preventive, foster care and adoption service information. 91 kroll, supra note 89, at 20 (emphasis added). 92 scott m. stringer, n.y.c., off. comptroller, audit report on the safety and wellbeing of infants residing in sampled department of homeless services shelters (2020), https://comptroller.nyc.gov/wpcontent/uploads/documents/mg19_110a.pdf [https://perma.cc/2zpv-uj5r]. 100 colum. j. race & l. f. [vol. 11:75 embodiment, and not the primary object of terror’s multiple enactments; the ground of terror’s possibility globally. this is everywhere clear as we think about those black people in the united states who can “weaponize sidewalks” (trayvon martin) and shoot themselves while handcuffed (victor white iii, chavis carter, jesus huerta, and more), those black people transmigrating the african continent toward the mediterranean and then to europe who are imagined as insects, swarms, vectors of disease, familiar narratives of danger and disaster that attach to our always weaponized black bodies (the weapon is blackness).93 it’s clear that acs’ interest in identifying adverse childhood experiences (aces)94 does not include the state sanctioned racist violence that produces the most defining traumatic conditions for families on the receiving end of these surveillance predictions. then what is the goal of their predictive analytic model? the kroll report continues: the goal of these predictive models is to provide enhanced services to high-need families rather than to identify children for removal from homes. this approach differentiates acs’s predictive analytic models from models used by some other child welfare agencies, which tend to use modeling as a means of screening cases and identifying children who may need foster care services, inevitably creating difficult questions about the “false positive” rates the models produce.95 93 sharpe, supra note 36, at 15–16. 94 vincent j. felitti et al., relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults: the adverse childhood experiences (ace) study, 14 am. j. preventive med. 245, 245–58 (1998). the original kaiser permanente study, identifying a correlation between aces and leading causes of death, enrolled 8,506 people, of which 79.4% were white and 43% were college graduates. despite frequent invocation of ace as justification for preventive services by child welfare administrators, the demographic of who is enrolled into “prevention” is completely at odds with the original public health data. 95 kroll, supra note 89, at 19. 2021] calculating the souls of black folk 101 in this passage, kroll argues that the agency can mitigate the public backlash generated by false positive rates through articulating the purpose of the model away from identifying “whose child should be removed” and towards framing the output as the identification of high needs families for the provision of voluntary services. in highlighting this approach, kroll is not claiming acs’ use of safemeasures as more accurate in predicting the likelihood of child maltreatment than software like the allegheny family screening tool (afst). kroll is also not claiming that acs’ predictive risk modeling seeks to answer a fundamentally different question from afst. kroll’s primary concern appears to be ensuring that acs will be able to evade the same intensity of public scrutiny or “difficult questions about ‘false positive rates’ the models produce.”96 and it also suggests that such avoidance can be accomplished by tying the algorithm’s output to the provision of preventive services, while decoupling it from family separations. this focus on preventive services is a narrative feat in its own right, the rhetorical equivalent to cigarette manufacturer claiming benevolence for operating a hospital dedicated to lung cancer. with the narrative focus on prevention, child welfare agencies are going a step further, claiming to prevent the violence they enact—through new services only they can provide. decreasing their rate of child separations in exchange for massive expansion of community level surveillance, acs predicts which families they will prevent from being torn apart by themselves. this kroll report is a signpost directing us towards acs’s implementation of new modes of surveillance. to understand how they function within preventive services as a method of social control, we must now examine the legal and socio-historical logics that animate their use. in particular, we must expand the scope of our investigation beyond investigations that result in removal. 96 kroll, supra note 89, at 19. 102 colum. j. race & l. f. [vol. 11:75 iv. acs’ considerations in building a predictive risk model in november of 2017, data science researcher ravi shroff wrote a paper97 focusing on lessons he learned while developing a predictive analytics model for acs in partnership with researchers at the cuny. in order to do the kind of predictive risk modeling acs requested shroff’ assistance with, acs turned to machine learning which requires large amounts of data. conveniently for the aims of this project, the state central register (scr) hotline—the central intake in new york state for child maltreatment allegations—does not expunge indicated case records until 10 years after the youngest named child in the report turns 18 years old.98 this method of data collection, creation, and retention generates a uniquely intergenerational data set. however, even these hundreds of thousands of records that were provided to shroff by acs, in service of training a predictive machine learning model, were deemed insufficient, giving a sense of the data-hungry nature of machine learning overall. he explains further in his paper: “the scale of available data is also relatively small; for example, each year, acs conducts roughly 55,000 investigations of alleged abuse or neglect, and new york city receives several million 911 calls (google or facebook, on the other hand, analyze datasets that are many orders of magnitude larger).”99 shroff does not make recommendations in the report about how acs can increase the scale of available data it has access to. however, we know part of the solution is taking up kroll’s recommendation to modify memorandums of understanding (mous) to improve interagency data sharing in local government and programmatically requiring contracted preventive service agencies to collect data. shroff also highlights 97 ravi shroff, predictive analytics for city agencies: lessons from children’s services, 5 big data 189, 189–96 (2017). diane depanfilis and maria rodriguez are co-researchers in the cuny/nyu team. the nyc-acs predictive analytics technical team as of january 2018 includes a team from chapin hall/university of chicago and acs. the chapin hall team consisted of dana weiner, brian chor, mike stiehl and kiljoong kim. the acs team consisted of allon yaroni, teresa de candia, leila pree and synia wong. 98 n.y. soc. serv. law § 422 (2021). legally sealed, unfounded reports are supposed to be expunged 10 years after the report was made. however, in accordance with §422-5(a) reports may be unsealed if a new report is made during this 10-year period. 99 shroff, supra note 97, at 190. 2021] calculating the souls of black folk 103 methodological limitations of using acs records for machine learning training poses: non-representative samples of data are also problematic for applying predictive methods. it can be misleading to apply an algorithm trained on one population to a population with a different distribution of attributes. for example, acs leadership has been clear in stating that the repeat reports model described in this article will only be used to predict the likelihood that a child already in their system will have another investigation of abuse or neglect. in particular, even if required data were available, the model will not be used to make predictions on the general population of children in new york city. it is important to note that in general, if data collection procedures are strongly biased in some systematic way, the only option may be to devise strategies to improve those procedures.100 shroff raises concerns about the ability for a model trained on racialized groups below the poverty line to accurately predict the likelihood of child maltreatment and abuse on the rest of the city population. this articulation of the problem alongside his concluding thought—that we devise strategies to improve data collection—perniciously circumvents any mention of the structural inequalities that produce the data sample they do have while simultaneously laying the groundwork to request we collect even more. while acs is promising that the model will not be implemented on the general population of new york city children, there’s currently no legal framework or mechanism by which we would be notified or able to seek remedy if they did. additionally, the report does not state whether the children and families who compose acs’ dataset consented to having their data used to train a machine learning model designed to predict “repeat reports”. this highlights how black and brown children—already overrepresented in child welfare data— become a site of experimentation for city agencies developing automated decision-making systems. if the families represented in the data set were to discover their data was used without their 100 id. at 192. 104 colum. j. race & l. f. [vol. 11:75 consent and want recourse, too bad: there is currently none available. shroff mentions acs’ reliance on an external ethics advisory board that “will provide valuable advice on how to balance the shortand long-term costs and benefits of the myriad decisions made when implementing machine learning models.”101 however, it appears the iterative software development process—in which a random forest model was selected, the choice of features was made, and the purpose of the model were decided—was informed solely by technologists and acs leadership, without any consultation with the ethics board. further, acs does not appear to have included the advisory board in any of the upstream decisions, and there is currently no publicly available documentation describing their comment. if this ethics advisory board was to form an opinion in opposition to the decisions made by acs leadership and consulting technologists, there are currently no mechanisms to enforce their position in the face of agency opposition. there is also no mandate for the actions of the board to be communicated to the broader public. v. geographies of prediction the digital poorhouse is not a metaphor. it is a layered web of digital infrastructure transmitting petabytes of personal data, through brick-and-mortar data centers which are often metaphorically referred to as “the cloud.”102 the interpretation of these data sets by frontline caseworkers, supervisors or other agency staff is mediated by the user interface of software, along with other intervening computational infrastructures. technical infrastructure is not inherently bad, the moral value of technology is determined by the ideologies, values, and people who govern its use and creation. predictive analytics is a sociotechnical system (sts) “that considers requirements spanning hardware, software, personal, and community aspects. it applies an understanding of the social structures, roles, and rights (the social sciences) to inform the design of systems that involve communities of people and technology.”103 you cannot abolish or 101 id. at 195. 102 eubanks, supra note 29, at 184. 103 social-technical systems, interaction design foundation, https://www.interaction-design.org/literature/topics/socio-technical-systems. [https://perma.cc/x2ey-ncjx] (last visited mar. 13, 2021). 2021] calculating the souls of black folk 105 dismantle a system you cannot identify, so, before we proceed, we must map the geographies and infrastructures of prediction. in new york city, children placed into foster care or enrolled into preventive services are under the aegis of non-profit agencies which the city pays for provision of services. each of these contracted agencies is required to maintain case and program data for all child welfare cases in connections, the ocfs system of record. agencies contracted for prevention must input their data into both acs’ system for tracking provision of preventive services, the preventive organization management information system, and use the safe measures dashboard to enter the data of enrolled families. a central change instituted by commissioner david hansell upon appointment—in tandem with a return to child stat—104was the formalizing of a quality assurance department in acs and set of procedures governing their operation. the non-profit agencies contracted out to by the city are instructed to rely on data in their decision making, and to take a “significant role in building capacity to use data and dashboards to guide planning and case practice within agencies, as well as participate in the quality assurance/quality improvement learning collaborative.”105 a detailed account of how the “digital poorhouse” operates as a financialized computational structure is beyond the scope of this paper. however, it is worth mentioning that the expansive and costly technical capacity necessary to carry out data collection/creation and predictive risk modeling is frequently financed by pay for success or social impact bonds. these mechanisms enable private investors to fund public sector programming—receiving a profit if certain performance-based metrics are met. some have raised concerns that these “innovative financing structures” are a trojan horse for 104 annie e. casey found., implementing childstat, a “how-to” guide for child welfare and client-serving systems, (feb. 2015), https://assets.aecforg/m/resourcedoc/aecf-implementingchildstat-2015.pdf [https://perma.cc/nby6-xpet]. child stat was developed by acs in 2006 as modified version of compstat which began in 1994 under nypd commissioner william bratton in service of broken windows policing. 105 n.y.c. administration for children’s services, acs prevention services: request for proposals 40 (2020), http://sachspolicy com/wpcontent/uploads/2019/07/acs-prevention-services-rfp.pdf [https://perma.cc/r8zq-zzy5]. 106 colum. j. race & l. f. [vol. 11:75 privatization.106 the digitization of a poverty management system does not merely shift capital and funding to new actors, it renegotiates107 where and how data and power are located. for example, collected data is stored on financialized cloud computing, which maximizes infrastructure utilization and revenue through customizing contractual software agreements.108 the calculative practices of risk assessment central to predictive analytics in the child welfare system—and their assumptions of a high level of control over risk—also “play a crucial role in the overall process of financialization.”109 in her examination of moody’s, a major credit rating agency, natalia besedovsky describes how the fundamental shift in credit rating practices does not just “simply alter the rating methods or models. more importantly, they entail an entirely different set of epistemological assumptions about the calculability and predictability of the future, representing a fundamental paradigm shift in calculating and defining credit risk.”110 further research is required to explore this intersection in greater depth. a. what is safemeasures? safemeasures is a trademarked subscription cloud-based service developed by the non-profit, national council on crime and delinquency (nccd) and originally commissioned in 2011 by the alameda county for the california department of social services. in november of 2020, the company changed its name to evident change, stating: “our new name honors what’s at the heart of our work—we inform systems to transform lives.”111 according to their marketing, as of march 2019, the estimated 106 rachel m. cohen, why “pay for success” financing could cost taxpayers more than they bargained for, in these times (may 30, 2017), https://inthesetimes.com/article/pay-for-success-private-investment-education [https://perma.cc/br6w-e48s]. 107 martha poon, from new deal institutions to capital markets: commercial consumer risk scores and the making of subprime mortgage finance, 34 accounting, org. & soc’y 654 (2009). 108 david irwin et al., the financialization of cloud computing: opportunities and challenges, 26th international conference on computer communication networks (july 31 through august 3, 2017). 109 natalia besedovsky, financialization as calculative practice: the rise of structured finance and the cultural and calculative transformation of credit rating agencies, 16 socio-econ. rev. 61, 61–62 (2017). 110 id. at 61. 111 we are now evident change!, evident change, (nov. 30, 2020) https://www.evidentchange.org/blog/we-are-now-evident-change [https://perma .cc/52gw-8utw]. 2021] calculating the souls of black folk 107 costs for year 1 implementation begins at $100,000. the cost for annual hosting and consultation services is $400,000, with increases based on the number of data sources and organization structure. in april of 2017, acs procured through sole source agreement, the safemeasures dashboard, agreeing to pay the company $1.4 million dollars. safemeasures claims it provides a “better value” because their one-price subscription gives access to the software for all agency staff and unlimited access to evident change’s analysis and support teams, who also conduct the training for agency staff. the outsourcing of civic decision making to a nongovernmental organization without public comment is alarming in and of itself. by definition, the children whose lives are reflected in the data inputted into the safemeasures dashboard are already vulnerable and have limited access to justice through the courts. this is exacerbated when the government’s sociotechnical system’s design is outsourced. those who know all too well the prejudice of the frontline caseworker, juvenile detention center and family court employees might be incredulous at the suggestion that we ought to defend racist institutions from having their decision-making capacity eroded by the introduction of these obscure and obscuring computational infrastructures, and the massive quantity of surveillance data they rely on. there are limitations to procedural liberalism in holding government institutions accountable, but procedures and protections exist, providing some adjacency or access to accountability. in contrast, packaging inequitable decision making in code and software, and turning this process over to an outside entity not subject to these accountability measures, further separates the systems and people at the core of decision making from the processes intended to provide justice. the organization’s assessment of their own ability to affect harm is questionable. in 2014, nccd released a report about the los angeles county delinquency prevention pilot (dpp). dpp was a program of the la child welfare agency using safemeasures to predict which children were most likely to become criminals. the pilot combined pre-existing county data with incoming social services data and continuously provided a screening assessment which generated alerts to the assigned caseworker when a child was predicted likely to commit a 108 colum. j. race & l. f. [vol. 11:75 juvenile offense. the pilot concluded there was insufficient data to determine whether the intervention was successful in decreasing the rate of arrests among the experimental group but nccd not only, “suggests that la county’s strategy was on the right path, but also that more government agencies should consider testing similar programs all over the country.” vi. conclusion “to the real question, how does it feel to be a problem? i answer seldom a word.” —the souls of black folk, w.e.b. du bois112 between me and the other world, the question of how it feels to be a problem no longer goes unasked or finds itself proffered with delicacy. this is not to say that it—or the color line—has lost relevance in the reckoning of post-racial progress or the fascist white supremacy laying on the other side of the coin. it’s to say modernity’s impulse to classify and quantify the socioeconomic and anti-black consequences of racial capitalism, seeks to account for the suffering without a column in the ledger for tallying complicity. this impulse restricts the accounting of violence and poverty within the people who are affected, freezing them in an eternal snapshot as a data point. sites of carceral enclosure, whether the prison, the residential treatment center or decentralized modes of containment in the digital poorhouse, assume the danger to be managed is within the indeterminacy of the underclass. this lie is both the tragedy and the salve for the situation in which we find ourselves. out of the fairness, accountability, and transparency framework—it is accountability that provides the through-line from present struggles and policies that aim to mitigate harm and an imagining of the world otherwise. authoritarianism is brutal and violent in visible and named ways, which is why there is resistance bred in even the harshest conditions. the invisibility of the digital poorhouse and these emergent infrastructures of control present unique challenges to those seeking to build the grassroots resistance that abolition requires. we must get it how we live or rely on the tools, people and institutions we have in order to collectively fortify ourselves 112 w. e. b. du bois, the souls of black folk 1 (100th anniversary ed., routledge 2016) (1903). 2021] calculating the souls of black folk 109 against new forms of hegemonic control. however, “our spiritual strivings” and not the ambitions of reformism, must guide the tempo of our demands for accountability. we must be guided by a vision of a world that is “not readily available for viewing by those with eyes to see or available for hearing by those with ears to hear.”113 otherwise, we will find ourselves building an apparatus that manages and expands the digital poorhouse in lieu of dismantling it. 113 kevin thomas miles, “place post-paradise: poetic epistemology in the souls of black folk, 15 cr: new centennial rev. 83 (2015). 110 colum. j. race & l. f. [vol. 11:75 columbia journal of race and law vol. 11 july 2021 no. 3 article ending the family death penalty and building a world we deserve ashley albert,a tiheba bain,b elizabeth brico,c bishop marcia dinkins,d kelis houston,e a ashley albert is a parent advocate in the state of washington. she was the first parent in washington to legally enforce, and modify, an open adoption agreement after her child was taken away by child protective services. her work focuses on the needs of women and children with incarcerated loved ones. b tiheba bain is founder and executive director of women against mass incarceration, an organization empowering justice involved women and girls. recently ms. bain was inducted into the connecticut hall of change for her exemplary work in the state. she is a yale access to law school fellow and a public speaker. she sits on connecticut’s lt. governor womens commission of health and safety and the african american sub commission of connecticut’s general assembly commission. tiheba co-hosted the first three #freeher conferences and is the former coalitions director of the national council. c elizabeth brico is a freelance writer and journalist, and a 2019–20 journalism fellow with talkpoverty. she was also a 2019 reimagining communities fellow with the national council for incarcerated and formerly incarcerated women and girls, where she researched the use of predictive analytics by child services agencies. her writing typically focuses on social justice, particularly as they relate to the drug war and the foster industrial complex. her work has appeared in vice, vox, talk poverty, the appeal, filter mag, columbia journalism review, undark, politico, and more. in her free time, she can usually be found reading, writing, or watching speculative fiction. check out her portfolio at eb-writes.com and follow her on twitter @elizabethbrico d bishop marcia dinkins is the founder and executive director of black women rising a grassroots organization that centers the voices and stories of black women using a trauma informed organizing approach for collective healing, power and transformation. marcia has conducted multiple social justice workshops and organized multi-level campaigns to protect and defend women’s rights. she is currently a ph.d candidate at union institute & university studying public policy & social change with a specialization in women & gender studies. she has certifications in cultural competency, forgiveness therapy, restorative justice trainer, trauma informed approach trainer, executive management leadership, and multiple certifications regarding child welfare. e kelis houston is founder of village arms (va), a christ-centered organization that supports african american families impacted by child protection. va was created in direct response to the over representation and disparate treatment of african americans across the child welfare service continuum. kelis’ mission is to help eradicate these disparities through 862 colum. j. race & l. [vol. 11:861 joyce mcmillan,f vonya quarles,g lisa sangoi,h erin miles cloud,i and adina marx-arpadij u.s. history is rooted in the rationalization of family separation to benefit white supremacy, capitalism and mainstream u.s. values. because of this dark history, the u.s. history has become the world’s leader of legal destruction of families through termination of parental rights. it is the only country in the world that routinely pays people to adopt children whose parents, often women, very much want to be their parent. the adoption and safe families act, enacted in 1997, wildly changed the legal landscape of the family regulation system. at that time 47% of the children in the system were black, and the drug war had legislative action, family advocacy, and policy reform. she wrote, and is advocating for, the minnesota african american family preservation act to stop the arbitrary removal of black children from their families and community. she also serves as cultural consultant and trainer to child welfare staff, students, and service providers. f joyce mcmillan is a thought leader, advocate, activist, community organizer, and educator. her mission is to remove systemic barriers in communities of color by bringing awareness of the racial disparities in systems where people of color are disproportionately affected. joyce believes before change occurs the conversation about systemic oppression that creates poverty, and feeds people of color into systems must happen on all levels consistently. g vonya quarles, a california native with southern roots, is a 3rd generation formerly incarcerated woman with lived experiences related to child protective services, adoptions, and foster care. she is the co-founder and director of starting over inc., a reentry service provider and civic engagement apparatus. she is a women organizing for justice fellow 2010, women’s policy institute fellow 2012/2013, j. irwin award recipient 2013, eleanor jean grier leadership fellow 2014, wkkf fellow 2015, rosenberg fellow 2019. vonya is a licensed and practicing attorney that blends her formal training with community advocacy, organizing, engagement, and action. a mother and grandmother, vonya is grateful to the warrior women and men, the strategists, the doers, that have given so much to the fight for freedom. she recognizes that if it weren't for them, she would not have the examples to follow, or the shoulders to stand on. because of them, she is, and because of them, we can and must win. h lisa sangoi is the co-director and co-founder for movement for family power. i erin miles cloud is the co-director and co-founder for movement for family power. j adina marx-arpadi is a second-year law student at cuny school of law. she is a doula and lactation counselor, and a member of the birthmark doula collective. 2021] ending the family death penalty 863 been targeting black men for low level offenses, and labeling black mothers as “crack moms”. the result was an extreme attack on black families, for which we have yet to recover. abolition teaches us to unroot oppressive structures, disrupt and dismantle them while simultaneously supporting a praxis of imagination, healing, and building. in this paper, we encourage people not only to work to repeal asfa, but to interrogate the imagination which entrenched the legitimacy of asfa. part i centers the discussion in our imaginations—the world we want to build, and the demands we are making. part ii moves into a discussion about the counter imagination, the ideas and mythology that created asfa—the legal framework. in this section, we isolate asfa as a target for abolition and organizing. part iii moves into a practical discussion about ethical ways to mobilize around asfa. this section is intended to invite the reader to learn, and question, together. it invites questions, thinking, and problem solving in lieu of providing a recommendation. 864 colum. j. race & l. [vol. 11:861 i. introduction ............................................................................. 866 ii. the world we deserve: our vision and our demand ....... 868 iii. the violent antagonist: white supremacy and its imagined reality ................................................................ 872 iv. an invitation for transformation ....................................... 878 a. an invitation to movement building to end the culture of forced family separation ........................ 879 b. an invitation to reimagine and build resilient communities and family structures by learning from shared memories ................................................ 883 c. an invitation to learn from movements outside of the family regulation system ............................... 886 d. an invitation to build principled organizing strategies that bring us closer to our goal of liberation and transformation .................................. 890 e. an invitation to repair and heal histories of harm ............................................................................. 892 v. conclusion .............................................................................. 893 2021] ending the family death penalty 865 “it doesn’t interest me who you know or how you came to be here. i want to know if you will stand in the center of the fire with me and not shrink back.” —the invitation, by oriah1 jahmel reynolds, illustration of white hands destroying a black family tree. produced in collaboration with the authors. reynolds’s other work can be found on instagram, using the handle @jahmelr. 1 oriah, the invitation (1994), in oriah, the invitation 1 (2006). 866 colum. j. race & l. [vol. 11:861 i. introduction we are directly impacted mothers, community organizations, and allied advocates across the country. we fight for family liberation. many of us met for the first time in 2019 in philadelphia. we participated in a convening called, “fighting for family,” co-hosted by the national council for incarcerated and formerly incarcerated women and girls. together, about 50 people—predominantly women, mothers and people of color— decided to deepen our relationships, leverage our expertise, gain momentum, develop coalitions, and build out solidarity against family separation tactics. we understood, even before most mainstream institutions believed, that the criminal and foster systems work together to oppress marginalized genders, and that people who have been impacted by these systems are best positioned to lead change. that racism, capitalism, colonialism, ableism, sexism, classism, heteronormativity, etc., are just some of the dark forces which deprive us of the world we deserve, and that all forms of cages—physical, political, and spiritual—must be dismantled. that calling the system a “child welfare” system is disingenuous, because it is actually a family regulation and destruction device.2 in philadelphia, we collaborated and brainstormed. we agreed that there were many ways to end the reliance on family policing, regulation, and destruction as a political tactic; even though few people were taking on the violence enacted by adoptions and safe families act (asfa)—a law that dramatically changed the state’s obligations to work with families, created financial incentives for adoptions, but not reunifications, and outlined strict timelines to terminate 2 we give gratitude to professor dorothy roberts, who built enormous scholarship and framing around the regulation of families and bodies through the child welfare system. this framing is not only seen in her foundational books, shattered bonds, the color of child welfare (2002), killing the black body (1997), but also in a wealth of scholarly articles, one of which became a foundational text for our convening in philadelphia: dorothy roberts, prison, foster care, and the systemic punishment of black mothers, 59 ucla l. rev. 1474 (2012). we also appreciate the language development and framing in emma payton williams, dreaming of abolitionist futures, reconceptualizing child welfare: keeping kids safe in the age of abolition (2020) (b.a. thesis, oberlin college), https://digitalcommons.oberlin.edu/cgi/viewcontent.cgi?article =1711&context=honors [https://perma.cc/58gc-92j5]. 2021] ending the family death penalty 867 parental rights (tprs).3 far too many of us had known or witnessed the pain of tprs—better known as the civil death penalty,4 and agreed that it is not an exaggeration to liken them to family death. tprs erased families, children’s names were changed, and many parents were left wondering if they would ever get to hear the voices of their babies.5 it was clear that we had to end this violent cycle of family destruction. in building out the work, we grounded ourselves in abolition as a theory of change, because we understood abolition as a political home that asks us not to acquiesce to a narrow understanding of the future, but to stretch, twist, and wring out all the permutations of possibility, and fully embrace the capacity of potential. as students and curators of abolition, it would be our duty not only to disrupt asfa as a policy, but to unroot the underlying oppressive ideologies which gave rise to its violence. we would have to engage in a praxis of imagination, healing, and building so that we could move away from subtle reform, and into a world of transformative solidarity. nearly two years later, we publish this article about what we have done since meeting in philadelphia, and how we are thinking about change. our mission is to dismantle asfa and to build a new world. we are asking for both ideas to exist simultaneously within the consciousness of the reader, as we argue that freedom must be our north star, and as a consequence, asfa will be dismantled. our article’s thesis is fluid and future leaning, because our work is fluid and future leaning. we wrote this article in a voice and structure that we hope invites the reader to feel the culture of our work, which is as hopeful as it is urgent. we start with our demand and vision of the future instead of a history of the law. we then move on to a discussion of asfa as an 3 see infra part ii. 4 in re smith, 77 ohio app. 3d 1, 16, 601 n.e.2d 45, 54 (ohio ct. app. aug. 30, 1991) (“the rights to conceive and to raise one’s children have been deemed ‘essential, basic civil rights of man,’ and ‘[r]ights far more precious than property rights.’”) (internal citations omitted). stanley v. illinois, 92 s.ct. 1208, 1212 (1972). a termination of parental rights is the family law equivalent of the death penalty in a criminal case. see also, elizabeth brico, the civil death penalty makes hungry ghosts of mothers and children, betty’s battleground blog (mar. 13, 2019), https://www.bettysbattleground.com /2019/03/13/the-civil-death-penalty [https://perma.cc/jsp9-43ly]. 5 brico, supra note 4. 868 colum. j. race & l. [vol. 11:861 antagonist to our story of liberation, focusing on its stifling impact to political imagination and making clear that asfa is a driver of white supremacy, family separation, and community destruction. we end the article with invitations to build, learn, and create in lieu of recommendations. we end this way purposefully, because this article is not prescriptive, but rather a memorialization of a time of thinking between a group of women envisioning and embodying change. we invite questions, community, and continued thinking. we do not have all the answers, but provide guiding questions and principles to find them. we also write this article at a time when our movement has suffered from isolation, the overwhelming oppressive reach of carceral systems, lack of funding and political access, racism and many more afflictions. we sit in a cold winter of activism, desperately awaiting a summer of change, reckoning and uprising. we implore you to struggle with us, be in community with us, and read the words that we have written with care and time. let this article sit deep in your soul—talk about it, disagree with it, agree with it, picture it, paint it, dance about it. imagine and build freedom. we bare our lacerated hearts to you, and to anyone who cares to meaningfully share this vision and dream. we will be free, as will our children, and our children’s children. ii. the world we deserve: our vision and our demand “do we get to live our life? that has been the fight for black people for so long. will we be able to express ourselves the way we want to express ourselves without demonization, without having to succumb to violence. do we get to live our life?” —bishop marcia dinkins our demand: we write this as mothers who have suffered the ineffable pain of losing a child to a system that came to us calling itself a savior. mothers who had to silently watch—some of whom are still watching—as our children are raised by others under a set of values and principles different than our own. mothers who could not watch our children grow up at all. we write this as children who were stolen from our families and told we were made from junk-genetics; the product of so-called broken mothers 2021] ending the family death penalty 869 and failed fathers, but who still had the courage to become mothers—only to have our motherhood terminated before it could bloom. we write this as survivors of physical and sexual violence who were punished for surviving; whom the system chose to teach the cruel lesson that surviving such violence made us unworthy of motherhood. we write this as mothers who used drugs, but still loved our babies. mothers who used drugs, but still cared for our babies. mothers who were incarcerated, but still loved, cared, and yearned for our babies. we write this as mothers who made mistakes. mothers who asked for help without knowing our babies were the cost of our asking. we write this as black mothers, latina mothers, poor mothers, queer mothers, disabled mothers, single mothers, abused mothers, addicted mothers, loud mothers, and loving mothers. we write this as the allies of mothers and fathers and parents who are targeted by this system of family destruction. we write this as allies, defenders, and advocates who have witnessed the endless torment that results from child loss; who have tried to stop families from being separated forever, and who sometimes succeeded but many times failed. not because we didn’t try or care enough, but because the system is rigged against families. we write this as fighters for the sanctity of family integrity—and we are no longer asking. we demand a world where the integrity of all families is valued and family ancestry is held sacred. in this world, families are supported and given the resources they need to thrive, and the family death penalty, or termination of parental rights, no longer exists. in this world, we are building healing space for families who have been forcibly separated, and we are collectively building a vision of how to hold families together through all our complexities and experiences. our village resurrects, and the sound of communal joy resonates from home to home, person to person. the world we demand is a world built for us. black children can be children, and black, brown, and poor birthing people are trusted with decisions for the care of their bodies and families. it is filled with love, understanding, joy, and peace. it has fields of sunflowers, lilies and other flowers giving fragrance to the world. it feels like freedom and it tastes like abuelita’s congri, my sister’s fried chicken, fresh mango, and mama’s macaroni and cheese. it tastes like home. when we look at 870 colum. j. race & l. [vol. 11:861 people’s faces, they are happy, because for once, black people are living without fear. they are not worrying about who is knocking on their door, or feeling a panic when they get a call from an unknown number, and they rest easy knowing their children are safe. black daughters are safe. we demand a world where people have time to spend with their family, going to museums, parks, vacations. it is a world without war, poverty, racism, hatred, or mayhem. language is not a barrier, but a thread of understanding. this world utilizes a true barter system, without capitalism, with adequate housing for everyone, employment that suits all skill sets, and an education system where we are taught the truth about our heritage and about other people’s heritage, not a colonized fantasy. we demand a world where we are recognized for our actions and the substance of our beings—not judged for the substances that may sometimes be in our bodies; substances that we all use.6 in this world, it is understood that healing is nonlinear, and that old injuries can resurface afresh many years after the original wounding. the passage of time does not efface a person’s need or deserving of care. the way someone copes with their pain is not a commentary on their love for their children. asking for help is not an admission of incompetence, nor does it grant permission for the helper to take what is not offered. in this world, substance use is recognized as a normal part of human existence, and it does not transform into harm when it is done by a person of color or a poor person. in this world, those of us who live with addiction, or trauma are afforded the space, time, and support necessary to heal, and our children are allowed to be participants in that healing. in this world, our children learn that adversity can be overcome, that mistakes can be forgiven, and that the experience of suffering does not make permanent outcasts of us. in this world, we are not always perfect. we are not always liked. we do not always make good choices, but we still have the right to come home to our babies each and every day. 6 see german lopez, black and white americans use drugs at similar rates. one group is punished more for it, vox (oct. 1, 2015), https://www.vox.com/2015/3/17/8227569/war-on-drugs-racism [https://perma.cc /pmh2-h4ht] (demonstrating how both black and white americans use illicit drugs at similar rates). 2021] ending the family death penalty 871 we demand a world where systems do not dictate the futures of families, nor are the complexities of human pain, love and need, reduced to checklists and algorithms; where there are numerous community-based alternatives to provide the rites of passage for healing. for example, when a person gives birth, there is a community member that can stay with the parent and children if so desired. families stand together: babysitting each other’s kids, giving each other breaks, honoring the need for time apart and together. we have eliminated the fatigue, grief, and death that are constantly imposed on black women, birthing people, and caretakers. neighbors become aunties, and strangers are now our extended families. in this world, we govern our own communities, and have participatory policy making. parents and community leaders support each other. we come together with our children, eat food, make decisions, and watch the babies play. hate is buried. love is a verb, and we see it in action. our differences are no longer weapons used to divide us, but rather kindle for curiosity and unity. we build, and practice building, with the understanding that our liberation is intertwined. all top-down systems are eradicated. instead, grassroots efforts anchor us and lead the fight for the health and well-being of families. in the future there will be mistakes. but those mistakes will be allowed to fuel growth instead of being held over us as perpetual bludgeons named “shame” and “humiliation.” we would be living in a world where practicing the skills to end harm, mediate conflict is an imperative. we would generate stamina to endure the ebbs and flows of disagreement, and understand this as a practice of joy, not a necessity born out of fear. it will be our duty to eliminate the pathology of anger. it will be our duty to develop and normalize the reflex to “step up” and “step in.” what is now considered hard, will be considered routine. we hear our world as clearly as we can see it. it sounds like flowing water, waves clapping against rocks, the crescendo of a waterfall, a breeze strumming its gentle tune through the autumn leaves. it sounds like birds chirping in the distance, their melodic banter a symbol of the peace we have achieved. but most of all, it sounds like the voices of our children. in this world, all of us would wake up and hear our kids in the morning. we would call out to them and hear them answer, 872 colum. j. race & l. [vol. 11:861 “mom.” our grandparents, mothers, and children would be chattering, and laughing. sometimes the words would be hard, and sometimes the words would be soft. we hear bickering in this future, over things like what to eat for breakfast, or what games to play, and what clothes are okay to wear. we reminisce about hard times—when we battled together and battled each other. then we hear silence, sighs, laughter, and silence again. in this future, our days end with our eyes closing, and deep rest. we wake up and hear each other’s voices again. there is a repetition in hearing each other; our families are the soundtrack of our future. and if we must live in a world where we battle, it will be with an army united. millions upon millions of people of all backgrounds, races, nationalities, professions, generations, orientations, and inclinations will stand together with the clarity, strategies and power necessary to dismantle the systems that once kept us apart, down to the very rubble of their foundations. when we fight, we will do so with the confidence and knowledge of our collective experience, with the power and endurance that comes from knowing we will accept no other outcome than to win. then, when it is all over, we will breathe, we will rest, we will rejoice—and then keep building. this is our demand. we are no longer asking. iii. the violent antagonist: white supremacy and its imagined reality “i often feel i am trapped inside someone else’s imagination, and i must engage my own imagination in order to break free.” —adrienne maree brown7 our opportunities to grow and nurture our world vision have been suffocated by the imagination of others. these imaginations have built oppressive systems that have sucked nourishment from our world and traded domination for liberation, and personal responsibility for cooperative 7 adrienne maree brown, emergent strategy: shaping change, changing worlds (2017). 2021] ending the family death penalty 873 interdependence. they build and manipulate massive, faceless institutions—the prison, family regulation, immigration, and public assistance systems, to name a few. and they make them seem like the inevitable result of existence. they are not. they are the manifestation of white, colonial fantasies that become laws, that create smoke screens of noble purpose, and that cover dark realities of manipulation, oppression, and inequity. when we consider the adoption and safe families act, we situate our analysis not only in the elements of the law, but also the dominant imagination that allowed it to exist and survive with very little opposition. one starting point is looking at senator john chafee (r-ri), a lead senate sponsor for the legislation, who on the eve of the eve of the passage of the asfa told the new york times, “[i]t’s time we recognize that some families simply cannot and should not be kept together.”8 he spoke these words when nearly half of the children in the family regulation system were black, most were poor, and the federal government was rapidly draining social safety nets. we believe that the families chaffee imagined were not his own. he was from a family to which the entire power and might of the united states was dedicated to keeping together. in his direct ancestry were multiple governors, law professors, and senators. he attended the most elite institutions of the northeast and went on to live the life he was predestined to live—ascending from congressperson to governor to secretary of the navy to senator.9 he had been bequeathed generational wealth and social status from the blood, sweat and tears of our families—literally achieving social and political capital from the backs of our ancestors. he would likely utter the words that “some families should not be kept together” with a strong sense that his would continue to accumulate wealth and status, while we would inherit a devastating history with the foster system. unfortunately, chafee was not alone in his imagination of deserving families. his speech was a regurgitation of mainstream political rhetoric that was seeded in racism, misogyny and capitalism, long manufactured by the pushers of chattel slavery, political borders, and other vile story tellers. he 8 katharine q. seelye, clinton to approve sweeping shift in adoption, n.y. times, nov. 17, 1997, at a20. 9 e.g., john chaffee, wikipedia, https://en.wikipedia.org/wiki /john_chafee (last visited mar. 22, 2021). 874 colum. j. race & l. [vol. 11:861 did, however, add the additional layer of neoliberal storytelling that would promote a narrative of “personal responsibility” over our families. this specific narrative had been brewing for many decades but really became a pillar of political propaganda in the 1970s. with the specter of the black liberation movement squarely before it, the united states deliberately abandoned10 the belief that the government could, or should, play a role in leveling the playing field between the rich and poor, thereby making invisible decades of the u.s. government’s segregated aid-giving strategies like the new deal, and 1944 gi bill— strategies that built a gold plated escalator devoted to the accession of whites to the middle class.11 this erasure, in part, created fertile ground for neoliberalism to fill the gap with the notion of a “free market”. the “free market” would be the leading protagonist of the economic story told by the neoliberalists. this “free market” would be color blind, race blind, gender blind, and class blind. it would enter the final act of the 20th century with a bold message about “personal accountability”—a message that venerated the market and justified the government’s abdication of its responsibilities to support their most marginalized members of society. many of us recall being told that the “free market” was the greatest arbiter of equality, and that we could leave access to basic life necessities in the hands of the “free market.” that those who worked hard would get what they worked for. that those who did not work hard—well, they would not get what they did not work for. we came to learn that for our communities, for black folks, for brown folks, social mobility was in our hands, and ours alone. the free market neither gave a hand up nor beat 10 see the powell memo: a call to arms for corporations, moyers on democracy (sept. 14, 2012), https://billmoyers.com/content/the-powell-memoa-call-to-arms-for-corporations/ [https://perma.cc/38sq-42hw] (describing the united states’ increased focus on businesses in the 1970s). 11 see, e.g., darrick hamilton, beyond neoliberalism, neoliberalism and race, democracy: a journal of ideas, summer 2019, https://democracyjournal.org/magazine/53/neoliberalism-and-race/ [https://perma.cc/cm32-gstg]; ira katznelson, when affirmative action was white: an untold history of racial inequality in twentiethcentury america (2006) (describing policies in the 1970s that were geared towards propelling white people out of the middle class). 2021] ending the family death penalty 875 a person down. if something bad happened in someone’s life, the free market alleged that it was their fault. glaringly absent from this grotesque fairy tale spun by racial capitalism were the inherited advantages and disadvantages of history, of decades of infusion of social and economic capital into white communities, and the political power that followed.12 from the 1970s on, the us would continue to privatize access to the basic life necessities—such as housing and higher education—the government provisions of which were otherwise the bedrock of the momentous buildup of wealth in white communities.13 they would use language to pathologize us for accessing what little government assistance was left, and blame us for the harms of living under centuries of oppression, calling black, brown, and low-income mothers “crackheads” and “welfare queens.” they would push them into systems, and turn their backs on families and communities. they would disappear adults into the prison system and children into the family regulation system.14 when they put mamas in cages, mamas would send their children to live with their parents only to be told that their children could not live with their grandparents. the free market, white institutions, governments, pundits, the medical establishment, academia, and others, placed the blame for the fallout in our community squarely on those of us who suffered the most harm. with this history and with these lies, it is unsurprising that asfa passed with little political controversy or fanfare. for all intents and purposes, it embodies the sentiment, imagination, and consciousness of the moment—that the government does not have an ongoing responsibility to support families, that if something bad happens to our families it is solely our fault, and 12 hamilton, beyond neoliberalism, supra note 11. 13 the u.s., of course, continues to support and subsidize the accumulation of white wealth through many means, such as the tax code but has managed to make the massive government assistance that white and wealthy people receive invisible. jocelyn harmon & jeremie greer, how the us tax code drives inequality—and what we can do to fix it, ford found. (apr. 13, 2017), https://www.fordfoundation.org/just-matters/equals-change-blog/posts/how-theus-tax-code-drives-inequality-and-what-we-can-do-to-fix-it/ [https://perma.cc/ce5c-j5je]. 14 ingrid archie, address at the #stopstealingourbabies virtual town hall of the time for change, time for change found., (aug. 25, 2020), https://www.facebook.com/watch/live/?v=942945716197667&ref=watch _permalink). 876 colum. j. race & l. [vol. 11:861 that we—alone—are responsible for centuries of political neglect. the adoption and safe families act reflected these ideas by:15 1. demanding that every child welfare system across the country move toward termination of parental rights proceedings after a child has been in foster care for fifteen of the past twenty-two months;16 2. insisting that every child welfare system skip efforts to keep families together and move directly to termination of parental rights as soon as a child enters the foster system, if “aggravated circumstances” exist;17 3. establishing unprecedented federal incentives to states to permanently separate families and terminate their legal ties, with no comparable financial incentive to reunify or keep families together. the adoption of this law was swift. by july 1999, all states had laws that mirrored the federal legislation or were more stringent than the federal law.18 a formerly incarcerated mother and asfa activist in new york state, christina voight, reflects that at the time of the law’s passage, everyone, from the mothers caged to the family regulation agents to the agencies themselves had no idea how asfa would actually unfold.19 the law was literally written on the backs of families. since asfa was enacted, more than one million children have been permanently separated from their parents.20 that is about the population of rhode island. it is more than the entire city of boston. the annual number of family dissolution and 15 adoption and safe families act, 42 u.s.c. § 1305 (1997). 16 there are limited exceptions to this timeline. one such exception is that the court can use its discretion when it serves the best interests of the child, to extend the timeline. as authors who have practiced for years in new york, and people who have directly experienced asfa, we have not observed use of this provision. 17 aggravated circumstances range from past criminal convictions to the mere fact that a parent has lost their termination trial in the past. 18 foster care: states’ early experiences implementing the adoption and safe families act, u.s. gov’t accountability off. (dec 22, 1999), https://www.gao.gov/products/hehs-00-1 [https://perma.cc/suu3-rb6k]. 19 interview with christina voight, movement for family power (dec. 21, 2020) (on file with author). 20 kim phagan-hansell, one million adoptions later: adoption and safe families act at 20, imprint (nov. 28, 2018), https://imprintnews.org /adoption/one-million-adoptions-later-adoption-safe-families-act-at-20/32582 [https://perma.cc/vwm5-5bkq]. https://www.gao.gov/products/hehs-00-1 2021] ending the family death penalty 877 adoptions have increased by 57 percent from the time asfa was enacted through fiscal year 2004.21 moreover, between 1997 and 2019, because of asfa, at least 121,000 more children aged out of the family regulation system with no permanent home than would have aged out had there been no asfa, giving america the distinction of having the largest number of legal orphans out of anywhere in the world.22 too many of us have believed what they told us about the system—the myth of personal responsibility creates false paths of redemption. many of us were told that we were being selfless and doing something good if we gave up on our case, our children, and relinquished them to the system. yet some of us have since found our children, spoken with our children who are adults now, and we have learned that this system was not good for them. it was not as some of us perceived it to be. it was not as the system described. it was certainly not redemption. we publish this article over 20 years after the passage of asfa, 20 years into surviving and thriving in spite of the horror it has inflicted on children, families and communities. we write this and continue to be stunned by the amount of money this law has funneled into family regulation systems across the country. money that was stolen from communities. in 2017 alone, states were projected to receive $2.658 billion in federal title iv-e adoption assistance budget to fund other families to care for our children.23 from 1999 to 2014 the federal government projected that it gave states $423,754,125 as an award for dissolving our families and adopting out our children.24 over the course of 20 years, the federal government (not including state governments) has spent tens of billions of dollars on paying other families to permanently raise our children and the children of the families 21 u.s. gov't accountability off., gao-03-626t, foster care: states focusing on finding permanent homes for children, but longstanding barriers remain 2 (2003). 22 asfa: the racist child welfare law from the 1990s that almost no one talks about, nat’l coal. child protection reform, child welfare blog (nov. 8, 2020), https://www.nccprblog.org/2020/11/asfa-racist-childwelfare-law-from.html [https://perma.cc/9rdc-ckzc]. 23 cong. rsch serv., r43458, child welfare: an overview of federal programs and their current funding 19 (jan. 2, 2018). 24 cong. rsch serv., r43025, child welfare: the adoption incentive program and its reauthorization 19 (july 15, 2014). 878 colum. j. race & l. [vol. 11:861 we support.25 these numbers far outpace the money or energy that as invested in us, our families, our communities, and our advocacy. can you imagine what we could be doing for our families if we had that type of investment? asfa is a continuation of many troubling histories in the united states where normative judgements around who were worthy families and who were not, who were worthy communities and who were not. it used considerable resources and wreaked and continues to wreak havoc on so many communities.26 it has trapped so many people’s perspective of what is possible, and it must end. iv. an invitation for transformation “the ending of one story is just the beginning of another. this has happened before, after all . . . . old orders pass. new societies are born. when we say, “the world has ended,” it’s usually a lie, because the planet, is just fine. but this is the way the world ends. this is the way the world ends. this is the way the world ends. for the last time.” —n.k. jemison27 we build a new world, not just by repealing laws, but through transforming and undoing oppressive social orders, actions and interactions. asfa is a symptom of centuries of family separation policies that have relied on the degradation of black, brown, and poor bodies to legitimize their existence. it is kin to the violent crime bill, cousin to the personal responsibility and work opportunity act, sibling to the illegal immigration reform and immigration responsibility act, and heir apparent to all the laws that built up racial capitalism, chattel slavery, segregation, border control, reproductive injustice and u.s. war strategies. its relationship to the history of punitive policies is a rationale for both its full repeal, and also 25 we estimate the total cost to be much higher, as these numbers do not include the cost of family investigation and child removal that proceed permanent dissolution. 26 latagia copeland tyronce, yes, the adoption and safe families act (asfa) can and should be repealed!, medium (dec. 24, 2018), https://medium.com/latagia-copeland-tyronces-tagi-s-world/yes-the-adoptionand-safe-families-act-asfa-can-and-should-be-repealed-9c18ac391997 [https://perma.cc/cm35-bydm]. 27 n.k. jemisin, the fifth season (2015). 2021] ending the family death penalty 879 a reason why a traditional legal/policy strategy, alone, will not bring us closer to our world vision. we want to build transformative and lasting change. we believe there should be no termination of parental rights, no fasttracked adoptions, no stringent timelines for reunification, and no financial incentives for separations and adoptions. we insist on the end of terminating parental rights during a global pandemic, because of parental incarceration or simply because someone has not achieved remission from a complex medical condition. we require a full repeal of asfa. these are our demands, and they can be enacted immediately. however, even if we were to achieve these policy shifts, our work would not be done. we aim not only to eliminate asfa but to uproot the culture of family policing and forced family separation. our success will be measured by the shift in political alignment, imagination and transformation of our community, not by the legislative session. we are building in collective struggle. we are learning together, and offer this final section as a glimpse into what that process looks like for us. we urge you to read this section not as a blueprint for organizing but rather a description of our time together. maybe this will inspire imagination or invite accountability, regardless we share this space with you and hope to: 1. invite movement building; 2. invite memory sharing, imagination, and community building; 3. invite learning from other movements; 4. invite principled organizing strategies; and 5. invite healing and reparations. in each subsection, we have tried to cite some of our resources in the footnotes in each section and hope that it will serve as a conversation starter as we all work to build a new world. a. an invitation to movement building to end the culture of forced family separation when we met in philadelphia in 2019, we had the opportunity to work with ayni institute. ayni is a small grassroots organization that, among many things, has studied 880 colum. j. race & l. [vol. 11:861 hundreds of movements over the last two centuries.28 in philadelphia, they learned from us and also taught us about the work they have been doing, especially as it pertained to thinking about the importance of social movements,29 and their life cycles. one of our main takeaways from ayni is that we are all connected to the earth, and as a consequence we are all connected by universal laws of nature.30 one example is that we all go through the cycle of life and death in various ways, and this cycle is not confined to a human experience, but is also seen in activism, social justice trends, organizations and movements.31 this framing is a shift from the traditional linear trajectory that often directs legal, non-profit or traditional legal and policy strategies, and creates a circular pattern of planning that helps us orient our work, define our success and create stamina for the inevitable retrenchment.32 ayni uses the metaphor of seasons to explain that social movements go through a winter, spring, summer and fall, and this cycle takes approximately 5–15 years.33 we learned that in each season there are different opportunities.34 in the winter of a movement, the work is internal; among other things it is a time of low activity and planning, which is the opposite of the 28 ayni institute, https://ayni.institute/ [https://perma.cc/4yc2-592b] (last visited jan 8, 2021). 29 there are many activists, scholars etc. that have been teaching and explaining about the importance of social movements which include but are certainly not limited to: ella baker, black panthers, black liberation movement, civil rights movement, marsha p. johnson, dolores huerta, adrienne maree brown, law for black lives, movement law lab, black organizing for leadership and dignity, new georgia project, conmijente, combahee river collective, the black feminists who proclaimed the need for reproductive justice, formations like survived and punished, no new jails, and the countless international movement builders, activists, and theorists. we are humbled by so many before us and raise ayni institute as they were a specific partner in the support of this work, and we learned a lot from their guidance and especially the specific support of fhatima paulino. 30 ayni institute, movement ecology introduction webinar, youtube (sept. 6, 2016), https://www.youtube.com/watch?v=pgwyaw3he2w&feature =youtu.be (last visited mar. 23, 2021). 31 id. 32 id. see also, jennifer ching et al., a few interventions and offerings from five movement lawyers to the access to justice movement, 87 fordham l. rev. 186 (2018) (discussing strategies for building sustainable movements). 33 ayni institute, 3. movement seasons, youtube (apr. 16, 2019), https://www.youtube.com/watch?v=kswnvinjygi (last visited jan 8, 2021). 34 id. 2021] ending the family death penalty 881 summer—an external, high activity time that may allow for large scale policy changes that can be supported by an accountable movement infrastructure and lead by people more directly impacted by social change.35 they reminded us that many movements get stuck in the winter and never move to spring, explaining that this is because everyone wants to be in an eternal summer.36 that there is a dominant summer culture of “do do do,” that is projected by many organizations, institutions, and even ourselves, and that organizations do not respect people’s winter.37 they also said that we often get stuck in a “winter” because we lose sight of what is needed during a winter, retreating, deep thinking, learning, and relationship building. 38 when we learned about the different traits of each season, we almost universally agreed that the abolition of the family regulation and destruction system was squarely situated in a winter. we saw the traits of isolation and low or little funding for activist leadership. we saw the blank stares when we told people we should end the child welfare system and questioned its efficacy.39 we felt the frustration that many of our comrades and progressive colleagues confused our demands with one that asked for abuse and harm for children.40 we observed the layers of shame, stigma, and oppression that surrounded communities, parents, and families resisting and activating.41 we certainly were not in a summer. 35 id. 36 id. 37 id. 38 id. 39 many activists and directly impacted people have been arguing for a swift change with little to know support, funding or even serious consideration by mainstream media/lobbying efforts. see, e.g., latagia copeland tyronce, supra note 26. the resistance in contra costa county, some of which is captured in writing by michelle chan. michelle chan, san francisco bay view (2021), https://sfbayview.com/tag/michelle-chan/ (last visited mar. 24, 2021). 40 one representative example, is the fight by elizabeth brico for her daughters. she created her own petition to convince stakeholders that she should be with her child, exposing the very clear and real evidence that despite allegations of substance use there were no connections that her children were ever neglected. see elizabeth sparenberg-brico, reunite the brico babies with their mama, change.org, https://www.change.org/p/florida-department-ofchildren-and-families-reunite-the-brico-girls-ages-5-and-6-with-their-mama (last visited mar. 24, 2021). 41 voices keston jones, episode 3 dinah ortiz: #family, #women’s and #criminaljusticereform #advocate. #voiceskj, youtube (nov. 25, 882 colum. j. race & l. [vol. 11:861 the opportunities during winter center on decreasing isolation around those most impacted, activism and organizations that are looking to direct their resources at the same target and deepening alignment around the political understanding of the target issue.42 this means creating regular practices around meeting and creating community, developing coalitions with sustainable infrastructure, discussing how we want to be in relationship with each other, developing aligned targets and talking points, and sharing and building political education around the issues we want to tackle. it also means ensuring that resources do not consolidate and congeal within funded non-profits or carceral systems, but rather move towards community, leadership development, idea generation and innovation. in the last year, our work around repealing asfa was focused on the strategies we believe will pull our work from winter to spring. we organized a convening in philadelphia, engaged in horizontal learning and political education and then isolated a particular element of the law we believe we can tackle, asfa. from that philadelphia convening, we started a steering committee that has now been meeting regularly for approximately a year. we were hoping to have another, smaller in-person convening in march of 2020—though covid has impacted our ability to physically be with one another. we are hoping to invite people into working groups in 2021, and we want to take time to think through how to bring people together, how to organize and how our time together can be meaningful, healing, creative and generative. most importantly, we have built relationships with each other during this winter. we have learned together, deepened our value alignment and trust, and hopefully also built resiliency. this is the work of the winter, that we hope evokes a spring. we will have to change the outputs of our work as our movement shifts. this is a part of our strategy and what we believe it takes to truly support liberated policy demands. 2018), https://www.youtube.com/watch?feature=youtu.be&v=5zz9ku67yu&app=desktop (last visited mar. 24, 2021). 42 ayni institute, supra note 29. 2021] ending the family death penalty 883 b. an invitation to reimagine and build resilient communities and family structures by learning from shared memories we aspire to center the experience, expertise, leadership and voice of the most directly impacted by asfa. we strive to be accountable to both those within our movements and those in adjacent movements and be in constant practice of sustained community building. this intentional work is difficult and has proved even more difficult this year where a global pandemic shut down our ability to be in physical contact with each other. nevertheless, we are reminded by the words of adrienne maree brown, that we must “[m]ove at the speed of trust” and that, “[t]here is always enough time for the right work. there is a conversation in the room that only these people at this moment can have. find it.”43 one of the conversations we have started building is with indigenous communities, who, in response to the devastating impacts of the removal of their children, have pushed back on the family destruction system and the dissolution of their families. this has included fighting for tribal sovereignty and jurisdiction over child welfare cases to bring them into tribal courts, and implementing alternatives to termination of parental rights. judge bill thorne, who is pomo coast miwok, a former state of utah court of appeals judge and former tribal court judge, describes these efforts as “not just about reimagining, but about remembering how we used to do it in our communities.”44 we have learned a lot, and have a lot more to learn. professor priscilla day, an anishinaabe tribal member enrolled at the leech lake reservation and a professor of social work at the university of minnesota duluth, explained to us that there is a belief among many tribes that children choose their parents, and that the parent-child bond cannot be severed.45 jeri jasken, who has worked as the former director of child welfare and director of behavioral health for white earth nation tribe, 43 adrienne m. brown, emergent strategy: shaping change, changing worlds 20 (2017). 44 university of houston graduate college of social work, upending the child welfare system: the road to abolition, youtube (oct. 21, 2020), https://www.youtube.com/watch?v=t7izch9p504, at 13:01. 45 interview with priscilla day, professor of social work, university of minnesota, duluth (oct. 20, 2020) (on file with author). 884 colum. j. race & l. [vol. 11:861 described telling social workers in their training, “it’s not your tie to break, not your right to break it.”46 similarly, judge thorne explained that many tribal communities believe that to cut off a child from their family is an act of abuse, because it not only severs the parent-child relationship, but also severs the child’s relationship with their extended family and relatives.47 he said, “kids are not property, you don’t cut them off. it’s not like a car where you have a bill of sale and you can only belong to one person. kids belong to the whole community and the extended family.”48 professor day, judge thorn, and jeri jasken were all in leadership at the time asfa passed. jeri jasken, the former director of child welfare at white earth nation, described a deeply uncertain and scary period for her community, where the tribe was faced with an overwhelming number of fast-tracked tpr petitions occurring in state courts. judge fineday describes hearing two clear messages from the tribal elders. first, the elders described that the tribe had always had practices that involved taking in other people’s children and there is no word for “orphan” in the ojibwe language.49 second, the elders opposed the concept of termination of parental rights and believed that parents should always be able to have their children returned when they are ready.50 we learned that leaders had to rapidly respond to the cultural clash inflicted by asfa on tribal customs. one form of 46 interview with jeri jasken, former director, white earth nation child welfare and behavior (dec. 2, 2020) (on file with author). 47 interview with judge bill thorne, utah court of appeals, at 26:16 (nov. 25, 2020) (on file with author). 48 university of houston graduate college of social works, supra note 44, at 54:20. 49 history of white earth, white earth nation, https://whiteearth.com/history (last visited mar. 24, 2021) (“all indian tribes have names for themselves. the largest indian group in minnesota calls itself anishinaabe, which means ‘the original people.’ europeans named them ojibwe. no one is exactly sure how this name developed. perhaps it came from the anishinaabe word ‘ojib,’ which describes the puckered moccasins worn by the people. some europeans had trouble saying ojibwe, pronouncing it instead as chippewa. but both these names refer to the same people. in canada, the anishinaabe call themselves ojibwe. in the united states, many tribal members prefer the name chippewa. so that is the name we will use in this history of white earth reservation.”). 50 interview with anita fineday, managing director, casey family programs’ indian child welfare program (on file with author). 2021] ending the family death penalty 885 resistance included the use of traditional law in child welfare practice, such as “tribal customary adoptions,” (tcas)51 which allows for a child to be adopted, with all of the legal recognitions that adoption entails, but without terminating the parental rights.52 traditional adoptions, or the making of relatives, is not new to tribal communities, in that it has been practiced for centuries. but what is unique is how this traditional practice is applied to a child welfare proceeding, and allows parents to continue contact with their children, as well as possible return of their children in the future. tcas were developed in response to the specific harms created by asfa and is based on historic and traditional practices held by many indigenous communities in which children were raised by extended family and by community.53 tcas have allowed tribes to prevent parental rights from being terminated, maintain contact and connections between children and parents. faced with the violence and swift nature of asfa, the white earth nation tribe recognized the need to take rapid action for their community’s survival.54 when anita fineday became chief tribal judge in 1997, she, along with jasken and other leaders, embarked on a process to re-write their tribal code to include a child welfare code, in order to address the large numbers of white earth children in foster care facing a tpr 51 initially, the tribe relied on their traditional law and custom to practice tcas in the context of child welfare cases in tribal court and refused to codify the practice. as jeri jasken explained, the tribe initially refused codifying it because “it’s traditional law. it’s a verbal, traditional, tradition and practice and shouldn’t have to be written down. any time you force a tribal nation to write those things down, you’re expecting something that’s not reasonable, that’s more westernized . . . but we ultimately decided to put it in our own code because it was of benefit to our families.” however, when the tribe lobbied for tcas to be recognized by the federal government to make adoptive parents eligible for adoption assistance funding, the social security administration demanded that tcas be codified for it to be recognized for title iv-e assistance. as a result, tcas were written into the white earth code in the early 2000s. white earth has also been able to receive additional financial assistance from the state of minnesota for their tca adoptive families. interview with jeri jasken, former director, white earth nation child welfare and behavior, at 21:30 (dec. 2, 2020) (on file with author). 52 california indian legal services, tribal customary adoption handbook 17 (2017) https://www.calindian.org/wp-content/uploads /2017/06/tca-handbook.-final.pdf [https://perma.cc/62eg-tmu3]. 53 interview with jeri jasken, former director, white earth nation child welfare and behavior (dec. 2, 2020) (on file with author). 54 id. 886 colum. j. race & l. [vol. 11:861 proceeding. they created a tribal family court for resolving child welfare cases in their own community, rather than in state court, where tprs were filed at an alarming rate.55 the process was done in consultation with tribal elders, who warned that the community would not accept the white earth court if it terminated parental rights the way the state courts did.56 they worked together to create a suspension of parental rights, which allowed parents to maintain a path back to their families. we know these are not the only forms of resistance, and we have a long way to go to learn about, and contribute to, building our collective memory around how communities have resisted asf. however, these conversations are instructive in many ways. first, they are a reminder that we are not alone in seeing this culture of parental destruction as an affront to our culture. that demanding a repeal of asfa is not a demand for harm to children, and that people who hear our demand in that manner are likely centering their analysis in dominant white culture norms. it also reminds us that our communities have so much capacity to organize, and reorganize for the sake of family survival. that we have, for so long, taken care of each other, responded to harm, supported and nurtured each other. that we can build on the resiliency of relationship, hold nuance, and care for one another—and that we have to remember as much as we reimagine. c. an invitation to learn from movements outside of the family regulation system tprs have disappeared so many parents from their children. elizabeth brico writes that “[e]quating this action to the death penalty is not hyperbole, in fact . . . it’s not a strong enough comparison.” 57 as far as i can tell, the dead don’t wander among the living, constantly inundated with images of the lives and experiences they don’t get to have. 55 anita fineday, customary adoption at white earth nation, in cw360º: a comprehensive look at prevalent child welfare, 28 (traci laliberte et al. eds., 2015). 56 id. jeri jasken said that tprs are simply “not allowable” in white earth’s practices, unless there has been some absolutely egregious harm, which is rare. interview with jeri jasken, former director, white earth nation child welfare and behavior, at 5:00 (dec. 2, 2020) (on file with author). 57 brico, supra note 4. 2021] ending the family death penalty 887 as far as we know, the dead don’t miss themselves, don’t mourn their lives; the dead don’t remember the aspirations they never achieved. the dead are, if not at peace, then at least null. mothers without their babies are neither at peace nor null. mothers without their babies are hungry ghosts . . . the civil death penalty looks like hating facebook because you post photos of your kids there. the civil death penalty sounds like shoving headphones deep into my earlobes so i don’t have to hear the mom downstairs shout at her kid in a way i never would, but don’t have the opportunity to do better than. the civil death penalty feels like the recirculated air of my apartment because going outside means seeing families walking together. going to the grocery store means not buying goldfish and juice for my daughters while you buy snacks for yours. going to the beach means the terrible freedom to swim without worrying about kids and wave and water and drowning. the civil death penalty means hating the mirror, where my belly will never be flat again and that was only okay because it gave me you and you but you’re not here anymore. the civil death penalty means being conscripted to irreparable loneliness. it means living the mangled reality of mother without her children. the civil death penalty means hating everyone i know for having the audacity to live forward and move on while i remain dead and stuck for the rest of my life. i’d give anything to be granted clemency. 58 tprs are a violent legal mechanism that kill families, and asfa is the civil death penalty that enacts the execution. as we learn more about how to repeal asfa, we must think critically about how the family and criminal death penalties interact. both purport to build safety at the expense of human life. both normalize state violence as response to social concerns. both politically justify their existence as a way to eliminate serious harm, and yet have disproportionately eliminated the existence 58 id. 888 colum. j. race & l. [vol. 11:861 of black and brown people. when determining our best path towards dismantling the family death penalty, we believe we can learn from activists who have worked to abolish the criminal death penalty. we have worked over the past two years to learn from comrades in all abolition movements, because learning from other connects our liberation to a longer freedom struggle. we have learned a great deal from the movement to abolish the criminal death penalty. this movement is in many ways more mature than ours, in that it has gone through several life cycles. the longevity of this activism helps us understand both successes and struggles of the work and can provide context for how we may want to envision political strategies for our movement, and prepare for retrenchment. for example, there was a period of time when death penalty abolitionists advocated for life without parole (lwop)59 as a replacement to the death penalty, with devastating consequences. at the time there was a sense that this was a more humane option, and potentially a more moral option. however, it did not fundamentally challenge the callous disregard for life, or the culture of punishment that ultimately drives our reliance on the death penalty. moreover, advocates have argued that the rhetoric used to win support of lwop as a replacement to the death penalty, particularly tough-on-crime and cost-saving rhetoric, served only to reinforce the values underlying not only the death penalty, but the entire penal system.60 by focusing on substituting one draconian policy for another, and by failing to put forth a narrative and vision that centers the dignity of people facing capital punishment, death penalty abolitionists failed to fundamentally alter the framework undergirding both lwop and the death penalty. this leaves the 59 miller v. alabama, 567 u.s. 460 (2012). 60 ross kleinstuber et al., into the abyss: the unintended consequences of death penalty abolition, 19 u. pa. j.l. & soc. change 185, 194 (2016). in addition, arguments about the fiscal savings of lwop were similarly misguided, not only because these arguments reduced the value of human life to a dollar amount, but also because the costs “saved” by lwop are actually the result of weakened legal protections and diminished procedural rights. the death penalty is more expensive because people receiving death sentences are afforded more legal protections than those who receive a sentence of life without parole; any argument relying on cost-savings is an implicit endorsement of reduced legal protections. id. at 190–93. see also rebecca burns, is life without parole any better than the death penalty?, in these times (mar. 22, 2013), https://inthesetimes.com/article/death-penalty-abolition-life-without-parole [https://perma.cc/jp7f-vrb8]. 2021] ending the family death penalty 889 movement with “nowhere left . . . to turn.”61 once lwop replaces the death penalty; the result is little more than a “pyrrhic victory.”62 in the winter of our work especially, we must wrestle with these difficult and often competing realities, and generate movement wide conversation to create alignment on how we remain faithful to the horizon of abolition. this is difficult. tpr abolitionists may consider the impact of alternatives to tpr, such as an indefinite suspension of parental rights, that prolong the uncertainty of reunification or the trauma of family separation just as the lwop prolonged the trauma of death in prison. any alternative that prolongs the process and ordeal of family separation may result in parents “volunteering” to have their parental rights terminated solely to find closure and put an end to their family’s uncertainty and suffering just as people on death row will sometimes ‘volunteer’ for their execution to put an end to their uncertainty and suffering.63 moreover, powerful entities, such as judges and child welfare prosecutors, may use these ostensibly “humane options” to coerce families into separations and settle their termination trials.64 it will be a struggle, but the ultimate goal must be to make the idea of killing a family through a tpr so offensive, that it is no longer an option for lawmakers, communities, or individuals. we can also learn death penalty abolitionists about the importance of being faithful to language and narrative shift. in 61 ross kleinstuber et al., supra note 60 at 195. 62 id. at 195. 63 for example, following the supreme court decision in adoptive couple v. baby girl, dusten brown dropped his appeals to regain custody of his daughter. he said, “i cannot bear to continue it any longer . . . i love her too much to continue to have her in the spotlight.” bethany r. berger, in the name of the child: race, gender, and economics in adoptive couple v. baby girl, 67 fla. l. rev. 295, 360 (2015). 64 this is not an abstract concern. litigants facing tpr proceedings are often threatened with a termination conviction if they do not “volunteer” their rights. we see this occur often in new york termination proceedings where agencies “offer” conditional surrenders that purportedly allow for visitation between parents and children. these provisions are often unenforceable. these conditional surrenders offer parents a glimmer of hope, but no legal rights to their children. they give the foster – now adoptive – parent enormous power to determine whether the parent can visit, even though they are supposed to be in an agreement. they are often used to force settlements for parents that wish to litigate their termination trial and do little to actually substantively preserve the parent/child relationship. 890 colum. j. race & l. [vol. 11:861 the context of lwop, we see the dominant narrative culture creates “humanity” around caging people for life versus state sanctioned murders. we can learn from our colleagues, about the pitfalls of adopting a narrative that prefers one inhumane treatment and disguises it as progress. we can also learn from our colleagues about the pitfalls of creating categories of deserving and undeserving people to justify reform, and how creating these types of exceptions do not eliminate the violent tactics of the government, but further helps legitimize and justify cycles of oppression. we absorb these lessons and work to end tpr for all families, not just the ones that society deems worthy. our analysis of the lwop movement does not negate the humble awe and gratitude we also give to the many people who resisted the criminal death penalty. to the contrary, it is a reminder to learn from others, and help us be open to accountability of our own work. the inevitable cycle of movement means that new activists will be able to see our vulnerable mistakes, we accept this challenge and hope we will not do more harm than good. d. an invitation to build principled organizing strategies that bring us closer to our goal of liberation and transformation to analyze as to whether we are doing more harm than good, we think about different frameworks around abolitionist demands that are either “non-reformist reforms” or “abolitionist steps.”65 abolitionists recognize that the world may not change tomorrow; however, we also reject incrementalism that reinforces the status quo and entrenches oppressive cultures. longstanding organizations like critical resistance66 and among many other liberation activists,67 have collected and facilitated questions to help encourage pro-abolitionist policy changes that resist the tendency to tweak the system, but instead tug at the root of the policy. in the context of ending policing, and abolishing the prison 65 if you’re new to abolition: study group guide: reformist reforms vs. abolitionist steps, abolition j. (june 25, 2020), https://abolitionjournal.org /studyguide/#weekfour [https://perma.cc/8ftj-532y]. 66 critical resistance, http://criticalresistance.org/ [https://perma.cc /azs6-glnz]. 67 we have been deeply influenced by the framings used by law for black lives, andrea ritchie, and the movement for black lives among many other teachings. 2021] ending the family death penalty 891 industrial complex (pic), many activists think through questions like these before agreeing to a policy change:68 1. does it reduce funding to the police? 2. does it challenge the notion that the police increase safety? 3. does it reduce the tools and tactics that police have their disposal? 4. does it reduce the scale of policing? 5. is there a material resource gain for communities? while this is not an exhaustive list, nor does it encompass the scale of expertise that pic abolitionists consider in framing and making their demands, it is an enormously helpful organizing tool that creates practical guideposts for building steps towards our new future. as we consider demands around asfa, and abolishing the family death penalty, we are thinking about how to incorporate non-reformist reforms into our analysis. before committing to a policy agenda we ask—are the changes that are being proposed reducing funding to the child welfare industrial complex,69 and increasing the funds to communities? is the narrative around the policy shift pushing the dominant narrative that the family regulation system is an arbiter of safety? are we 68 reformist reforms vs. abolitionist steps in policing, critical resistance, https://static1.squarespace.com/static/59ead8f9692ebee25b72f17f /t/5b65cd58758d46d34254f22c/1533398363539/cr_nocops_reform_vs_abolitio n_crside.pdf [https://perma.cc/awn5-x3l7]. 69 this framing and definition was presented at “dream-mapping adoption and foster care abolition,” allied media conference 2020, and was created and presented by a collective of adopted and formerly fostered folks. welcome to the 21st allied media conference, sched, https://amc2020.sched.com /event/d8en/dream-mapping-adoption-and-foster-care-abolition [https://perma .cc/2dua-ebjh]. they attribute this working definition of child welfare industrial complex (cwic) to people who have offered analysis/ways of thinking about the prison industrial complex, military industrial complex, etc. acknowledging it as a working definition used explicitly to name the overlapping systems of public and private child welfare, across both foster care and adoption. a recognition that we noticed that some people have used the term, child welfare industrial complex, but mainly to reference one part of the system (e.g., public foster care system, foster care industrial complex, adoption industrial complex, orphan industrial complex). however, these have historically not included both public and private systems across foster care and adoption and the ways those systems overlap and function together. 892 colum. j. race & l. [vol. 11:861 supporting changes that decrease the size, power and scale of the family destruction system? are we supporting a shift in material conditions and the politicization for our people? this is not an exhaustive list, but it is an important discipline in defining success, claiming victory, and keeping our focus on liberation. it is also an important process that must be convened with integrity, and ethical adherence to a liberatory framework, and a process that invites transparency and accountability. we will not always have a perfect answer to each question, and we might agree to a policy change that is imperfect. these questions, however, help narrow where we must continue fighting. for example, on the one hand, if there were a change made to asfa to end terminations for people who are incarcerated, that would be a victory, but it would not be the end of movement. it would be a victory because it would reduce funding to the family regulation system by ending the financial incentives that attach to those specific terminations and eliminate a tool that the family regulation system could rely upon. however, it still would leave out so many members of our community, the legal apparatus of asfa still intact, and potentially entrench the legitimacy of asfa as a valid idea. this does not mean we do not accept it as a victory, but we would know we still had more work to do. on the other hand, it would not be considered an abolitionist step if we were asked to endorse a policy that funded agencies to do their own internal review of tprs, and provide recommendations to the community. here, we have vested more funding into the system, made the foster care agency the arbiter of success and the creator of the recommendations, and offered no guarantee to the material conditions of our people. while these were two simple and short examples of how an abolitionist uses the framework of “non-reformist” reforms to make steps towards change—we hope this is constructive. we are continuing to learn, and are hopeful to build change. e. an invitation to repair and heal histories of harm abolitionists’ steps towards change also demand a transformative repair, not only as we heal as individuals but as society becomes accountable to the harms it inflicted on our communities. those of us who have suffered the harms of these systems, and in particular black mamas, indigenous mamas, and 2021] ending the family death penalty 893 latinx mamas are owed the truth. we are owed reparations. we demand that the lies that feed that ideologies of these systems that have devalued our families and communities be exposed as lies. we demand that our families be supported to heal and repair, with the force of law and financial, political, and social capital that was invested in these systems. we look to both u.s. liberatory frameworks of reparations as well as international reckonings with truth and reconciliation to help guide our demands and understanding. we recognize that the united states is not the only place where a dominant political, economic, social, and racial order was established in part through family separation. we have many examples of this across history and across time, and we are in a space of learning about the justice community has demanded. for example, the “las abuelas de la plaza de mayo” movement that formed in argentina in response to the mass disappearance of children from families deemed subversive by the military dictatorship, began as a group of grandmothers and grew into a movement that forced a truth telling around the disappearances and the development of a dna database so that parents could find their children.70 as we build momentum, we must also build a framework of reparations that exposes the centuries of violence inflicted on our families, and creates a pathway of true healing, shifts resources to our community, and builds accountable infrastructures to ensure that never again will any family be taken by the family death penalty. v. conclusion “we are a people. a people do not throw their geniuses away. and if they are thrown away, it is our duty as artists and as witnesses for the future to collect them again for the sake of our children, and, if necessary, bone by bone.” —alice walker71 70 michele harvey-blankenship & rachel shigekane, disappeared children, genetic tracing, and justice, in children and transitional justice 293, 302–04 (sharanjeet parmar et al. eds., 2010). 71 alice walker, in search of our mothers’ gardens: a womanist prose (1983). 894 colum. j. race & l. [vol. 11:861 stop investing in the imaginations of white supremacy. every day we see powerful people, industries and philanthropy invest more in the child welfare industrial complex than communities. these industries are so faithful to technical surveys like “aces” that are supposed to address adverse childhood experiences, rather than actually building up black women and children. they spend more time building out family regulation apparatuses like “prevention models” than advocating for housing, baby bonds, and universal basic incomes for our communities. they are obsessed over the idea of “permanency” instead of confronting the messy reality that family is complex, full of contradictions, and ripe for healing and accountability. we demand those with power, means, and resources to stop voicing caution and hesitancy when the most oppressed in our society build power. we demand that those individuals with privilege, give unyielding, unrestricted, and unencumbered support. that this support be financial, but also intellectual and in the form of patience and time. for centuries the united states has devoted trillions of dollars and political capital to the imaginations that gave us slavery, genocide, prisons, and housing insecurity. we are deserving of at least that time, and more. we need ample space for creativity, inconsistency, mistakes, and conversation. we need space to dream, think, strategize, and implement. build with us and exist in principled struggle. we do not expect this to be linear or simple, it will be uncomfortable, there will be contradictions, mistakes, and need for deeper learning. there will be setbacks, harm, and indecision. however, there is no better time than now. microsoft word cjrl kerr s17 final.docx rap exegesis: interpreting the rapper in an internet society andrew jensen kerr* the law and literature movement has had limited influence on the work of lawyers and judges. but a rap lyric’s dual quality as aesthetic and “truth” document makes it uniquely amenable to literary interpretation. the competing problems: lyrics are meant to be heard and not read, and the ambition of the contemporary rapper is no longer to be didactic or suggest authenticity. the #rapgame has changed. this article argues that the internet rapper is the paradigm of creative identity. the guiding questions for this article are how the law should respond to the individual who lives life as art, and if the social knowledge project will lead to the crowdsourcing of how we interpret both rappers and legal texts. i. introduction ............................................................ 342 ii. rap as art / rapper as artist ................................. 348 iii. law and literature / law and rap ....................... 350 iv. rethinking rap: beyond words ............................ 355 v. legal protection for living life as art ............ 359 vi. free earl / but why not welcome tyler? ......... 362 vii. the rise (and fall?) of the weirdo rapper: separating product and persona ........................ 365 viii. conclusion ............................................................... 371 * lecturer of legal english, georgetown university law center; juris doctor, columbia law school; bachelor of arts, wesleyan university. i thank stephan bradley, courtney hodge, and the staff of the columbia journal of race and law for their sage advice during this editorial process. any errors or excursions are my own. 342 columbia journal of race and law [vol. 7:2 i. introduction the supreme court recently denied certiorari in bell v. itawamba county school board, the latest case at the intersection of first amendment “true threats” doctrine and rap music.1 in 2011, then-high school senior taylor bell posted original lyrical content as a means of responding to the perverse behavior of two gym coaches (school officials never challenged these broader allegations of sexual harassment). bell sublimated his feelings of anger and resentment through the lyrical violence of a rap, which he posted on facebook. specifically, he warned that these teachers would “get a pistol down [their] mouth,” a line that fifth circuit judge rhesa barksdale cited as particularly threatening.2 read in full, the uploaded lyric possesses the flow and cadence of a rap song, includes the common tropes and signifiers of a “battle,” and riffs on the kinds of language that one would expect of a neophyte to the genre (the snoop-esque moniker “t-bizzle”; zeitgeisty use of omg, etc.). it is clearly a rap, and it would be inconsistent with the artistic conventions of the form for bell to have qualified his diaristic post in the subjunctive, e.g., “in a different world i wish that i could get a pistol down their mouth,” or to contextualize it as an ephemeral whim, “i daydream in passing about getting a pistol down their mouth.” doing so would interrupt the rhythm, and detract from the generality and open texture representative of most any kind of song lyric. and as noted by the submitted academic amicus brief to the supreme court, bell’s use of the “pistol-whip” rhyme might actually help the author tap into the rap canon. it is a reoccurring motif, and a range of rappers from waka flocka flame to bay area veteran e-40 have used it for purely metaphorical effect.3 one 1 bell v. itawamba, cert denied, 136 s. ct. 1166 (2016) (no. 15-666), 2016 wl 763687. 2 bell v. itawamba cnty. sch. bd., 799 f.3d. 379, 384 (5th cir. 2015). 3 brief for erik nielson et al. as amici curiae supporting petitioner at 16, bell v. itawamba, cert denied, 136 s. ct. 1166 (2016) (no. 15-666), 2016 wl 763687. no. 2:341] rap exegesis 343 could perhaps argue that employing a stock image signals that it is just a lyric, and nothing more. however, the court’s reticence to accept bell may be understandable given its context within the tinker universe of school administration.4 professors erik nielson and charis kubrin (with the support of michael render, aka “killer mike”) also submitted an amicus filing in last year’s elonis v. united states supreme court decision.5 in that case, the seven-judge majority determined that defendant, selfidentified rapper elonis, was protected by the first amendment for his virulent facebook lyrics, and that his use of explicit disclaimers negated the necessary mens rea to meet the “true threat” exception.6 for speech to have the specificity and conditionality of producing future violence, there must be a threshold level of subjective intent on the part of the author to commit to the action. the favorable elonis holding should provide the rap scholars some measure of solace. but in the circumscribed context of the public school, administrators are tasked with balancing the exigencies of discipline and moral education with individual expression.7 the court’s denial of bell’s case does not condone these loathsome gym coaches, or suggest that bell’s rap lyric is not a rap. instead, it acknowledges the fact-intensive calculus involved with determining whether a student’s public broadcasting of his lyric meets the reduced standard of being merely harassing or intimidating to school personnel.8 this is too bad for bell, who received an excessive seven-day suspension. this article agrees with professors neilson and kubrin that the administration had available more modest and constructive responses. but this incident also coheres with andrea dennis’ broader lament that “[t]he internet has 4 tinker v. des moines indep. cmty. sch. dist., 393 u.s. 503 (1969). 5 brief for marion b. brechner first amendment project et al. as amici curiae supporting petitioner, elonis v. united states, (no. 13–983), 2015 wl 2464051. 6 elonis v. united states, 135 s.ct. 2001 (2015). 7 bell, 799 f.3d. at 389–90. 8 id. at 384. 344 columbia journal of race and law [vol. 7:2 fostered a generation of individuals both willing and able to create art, bare souls, and spread messages in an exceedingly public manner.”9 in short, this is in part an internet problem, and not simply a rap problem. still, there are important distinctions between rap and other kinds of artistic texts. the most obvious difference is that rap lyrics are not intended to be read; they are intended to be heard. infused in the mythology of pantheon rappers biggie smalls and jay z is their claim to “write” their lyrics in their head. this lack of a paper trail is a common ambition among musicians, and led to the direct creation of websites in the vein of genius.com. it is known to those familiar with the genre that rappers experiment with forms of wordplay that would feel prosaic on paper, but novel or entertaining when rapped aloud (e.g. kanye west’s complex reference to princess kate middleton and the olsen twins in “n***** in paris”). true threats jurisprudence provides a useful template for thinking through this juxtaposition of medium to message in rap music. the supreme court in watts determined that the three relevant factors of a true threat inquiry are context, content, and audience reaction.10 professors kubrin and nielson seem most concerned with how an inner-city environs informs the context for traditional forms of gangster rap. graphic violence and nihilistic meditations are markings of the genre, and this aesthetic framing should be read in by audiences to help unpack a particular gangster rapper’s commentary or improvisation on these themes.11 the implicit, assumed nature of this aesthetic context has encouraged some authors to call for “experts” to uncover the meaning of written rap lyrics in court proceedings.12 kubrin was an expert for an 9 andrea l. dennis, poetic (in)justice? rap music lyrics as art, life and criminal evidence, 31 colum. j.l. & arts 1, 40–41 (2007). 10 watts v. united states, 394 u.s. 705 (1969). 11 cf. andrew jensen kerr, meta-stories and missing facts, 6 cal. l. rev. cir. 69 (2015). 12 see e.g., dennis, supra note 9, at 35–39. no. 2:341] rap exegesis 345 illinois case;13 university of delaware professor yasser arafat payne offered expert testimony for the eastern district of new york.14 but what requires more exploration is how the canvas of the rapper inherently frames lyrical content. “delivery” is a common heuristic used to evaluate the quality of a rapper. the dexterity, texture, and tempo of the rapper’s voice are used to modulate meaning and listener effect—for example, drake in nothing was the same compared with if you’re reading this it’s too late).15 the identity and personal history of the rapper can also be used to provide a meta or ironic quality to rap music; rap is allusionheavy. but the coded lexicon of the rapper is not the only tool to provide depth of meaning. the avatar of the rapper can be used as a foil or play on lyrical content. one example of this duality (tri-ality?) is eminem’s use of his marshall mathers and slim shady avatars to remind the audience of the complexity of rap identity and the distance between marshallas-artist and marshall-as-real life-dude. other rap audiences are more familiar with jay z’s meditation on self and artist in the iconic black album. still other rap fans might prefer the metaphysical resonance of viktor vaughn appearing on the mf doom track “fancy clown” (vaughn and doom are just two of the many manifestations of masked rapper daniel dumille). this article examines how the visual icon of the rapper influences listener expectations. previous generations of rappers projected symmetry between image and lyrical content. but today rappers like young thug experiment with the limits of both identity and language. the complexity of rap “compounds the difficulties with the already muddled true 13 people v. oduwole, 985 n.e.2d 316 (ill. app. ct. 2013), appeal denied, 2013 ill. lexis 796 (ill. may 29, 2013). 14 united states v. wilson, 493 f.supp.2d 484 (e.d.n.y. 2006). 15 e.g., jayson greene, evolve with the flow: how drake and kendrick found their voices, pitchfork (apr. 8, 2015), http://pitchfork.com/features/overtones/9623-evolve-with-the-flow-howdrake-and-kendrick-found-their-voices/ [https://perma.cc/6grp-8hzp]. 346 columbia journal of race and law [vol. 7:2 threats doctrine,”16 and this article therefore suggests a revised standard of legal protection for the rapper and her rap lyric based in public perceptions of art. in doing so, this article re-contextualizes law and rap as a humanity rather than a forum for sociology or criminology. this article presents two cases in detail: the illegalization of the hologram image of chicago drill rapper chief keef,17 and the united kingdom’s ban of tyler the creator for encouraging “terrorist acts.”18 the inherent textuality of “the law” limits its ability to manage these sorts of perception problems.19 the “visual rhetoric” movement in legal scholarship is a welcome addition, but its embryonic status is also an index of the difficulty of applying conventional kinds of legal analysis to problems of visual meaning.20 instead, this article argues that the internet—rather than courts or “rap experts”—is best positioned to decide who lives life as art. the rapper’s play on constructed identity goes to the problem of authenticity in lyric-based music. image is a 16 clay calvert, emma morehart & sarah papadelias, rap music and the true threats quagmire: when does one man’s lyric become another’s crime?, 38 colum. j.l. & arts 1, 20 (2014). (“in summary, then, rap is a complex genre. its very nature compounds the difficulties with the already muddled true threats doctrine.”) 17 eugene volokh, police shut down concert because of rapper chief keef’s hologram appearance – first amendment violation?, wash. post (july 26, 2016), https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/07/26/police-shut-down-concert-because-of-rapperchief-keefs-hologram-appearance-first-amendment-violation/ [https://perma.cc/x6ze-ka3g]. 18 joe zadeh, the banning of tyler the creator reveals a uk government struggling to define ‘terrorism”, noisey (aug. 27, 2015), https://noisey.vice.com/en_us/article/the-banning-of-tyler-reveals-truthsabout-the-uk-government-right-now [https://perma.cc/394l-2pj4]. 19 see claudia e. haupt, active symbols, 55 b.c. l. rev. 821, 861– 62 (2014) (discussing christmas crèches); see also peter brooks, law and humanities: two attempts, 93 b.u. l. rev. 1437, 1467–68 (2013) (“the court . . . has stumbled in trying to find the interpretive tools [when analyzing cases like lynch v. donnelly]”). 20 see, e.g., lucille e. jewel, through a glass darkly: using brain science and visual rhetoric to gain a professional perspective on visual advocacy, 19 s. cal. interdisc. l.j. 237 (2010); see also richard k. sherwin, a manifesto for visual legal realism, 40 loy. l.a. l. rev. 719 (2007). no. 2:341] rap exegesis 347 common concern of public figures, and popular musicians are especially attuned to the effects of style and attitude on audiences. consider the nomenclature of band names in diverse genres of rock: the atmospheric, insouciant handles of indie; the dark esoterica of metal; rustic images in folk. ranges of star musicians from garth brooks to prince to david bowie have experimented with different images and “names” as vehicles for their musical evolution. rappers are no different, as demonstrated in the innumerable iterations of conceptual rapper kool keith (dr. octagon, dr. dooom, black elvis, dr. ultra, poppa large, matthew, and crazy lou). importantly, the assumption of a musical moniker creates distance between the individual and the artist. the career arc of david bowie tracks a cosmic vision and liberatory take on the human condition, but few believe that ziggy stardust was actually a conduit for extraterrestrial life. but the rap trope of “keeping it real” adds a wrinkle to the construction of identity.21 if kendrick lamar22 prefaces “the art of peer pressure” by asking his listeners to sit down “and listen to this true mothaf*****’ story” then should his lyrics not be interpreted at face value? the work of scholars like kubrin23 helps to deconstruct the rhetoric of realness and authenticity in traditional gangster rap, and discern how credibility and commercial viability at one time shaped an expectation that the rapper’s lyrical content was in fact an unmediated account of their personal experiences and feelings. 21 see, e.g., sean-patrick wilson, rap sheets: the constitutional and societal complications arising from the use of rap lyrics as evidence in criminal trials, 12 ucla ent. l. rev. 345, 355–56 (2005) (“the trouble with ‘keepin’ it real’”). 22 compton-native kendrick lamar enjoys critical and popular acclaim for his musicality, technical mastery and veritable artistic genius. he won the 2015 best rap album grammy for to pimp a butterfly. see, e.g., kendrick lamar, the grammys, https://www.grammy.com/artist/kendrick-lamar [https://perma.cc/rzj2khqq]. 23 see, e.g., charis e. kubrin, gangstas, thugs, and hustlas: identity and the code of the street in rap music, 52 soc. probs. 360 (2005). 348 columbia journal of race and law [vol. 7:2 ii. rap as art / rapper as artist but this article questions the continued emphasis on gangster rap in law and rap scholarship, as well as the extent to which traditional forms of gangster rap still influence rap artists today, even those who detail violence. to the casual reader of kendrick lamar’s genius.com page—it is difficult to imagine a situation where we might read kendrick before listening to kendrick, but indulge my hypothetical—it is understandable why his descriptions might be interpreted as literal transcription. but to the rap-literate target,24 the listener would recognize the cinematic narrative of good kid, m.a.a.d. city to possess a synthesis of memory, creative nonfiction, and inserted aesthetic or sonic detail to provide it the depth of high literature and the musical resonance of an earworm-y rap album. the “listen to this true story” line might signal factual truth or “truthiness,” or it could just as likely be an ironic play by kendrick on what he interprets to be a hackneyed, rote device of the gangster rap genre—he could simply be poking fun at the notion of strict realness in art. this article posits that kendrick’s musical output weaves autobiographical elements with collective experience,25 and to be influenced by the history of early gangster rap, but to not be dictated or constrained by it. a broader question: does it make sense for rap scholars to so firmly situate a consciously future-oriented musical genre within a historical compass? my mind move like a tron bike/ pop a wheelie on the zeitgeist kanye west, “i’m in it” (2013) anthony elonis instead disclaims his facebook raps by prefacing that the violent images described have no 24 calvert et al., supra note 16 (the authors use the categories of “rap-literate” and “rap-ignorant” target listener to argue for an “objectiverecipient standard”). but see dennis, supra note 9, at 4 (“courts should interpret the meaning and import of defendant-authored rap music lyrics from the perspective of the defendant.”). 25 see, e.g., dennis, supra 9, at 20 (referencing michael eric dyson notion of collective experience in rap lyrics). no. 2:341] rap exegesis 349 intentional likeness to his real-life acquaintances, and that his raps are purely therapeutic.26 there is some hypographia here. and indeed, perhaps chief justice roberts is suggesting his own aesthetic sensibility by placing skeptical “scare quotes” around elonis’ self-defined status as a music artist: he began “posting self-styled ‘rap’ lyrics.”27 could roberts be intuiting the need for a distinguishing test to separate the quotidian rap scribbler from the rapper-as-artist? the sixth circuit in united states v. jeffries affirmed that individuals cannot immunize themselves by dressing up a true threat with the accents of political or artistic expression.28 historically, courts have retreated from making value judgments as to what counts as art. indeed, part of the reason the court denied bell’s hearing is that the case is positioned at the coordinate of two uncertain axes—the level of deference owed to school administrators along with the court’s institutional capacity to separate the truth value of a written rap lyric. but if we are to take earnest heed of the jeffries position, then courts should develop a rubric by which to determine the sincerity or quality of artistic expression. who decides who is a rapper? and what is a rap lyric? it is a bit surprising that the amici briefers were able to get bona fide rapper-activist killer mike to support elonis’ defense29—how much generosity should we have for this twerp who rips from the whitest kids u’ know and interweaves vitriol towards his 26 see, e.g., richard wolf, supreme court to hear case on facebook threats, usa today (june 16, 2014), http://www.usatoday.com/story/news/nation/2014/06/16/supreme-courtfacebook-threats-free-speech/10326233/ [https://perma.cc/qt4n-a6gb]. 27 elonis, 135 s.ct. at 2004 (emphasis added). 28 692 f.3d 473, 475, 482 (6th cir. 2012); see also calvert et al., supra note 16, at 24. 29 erik nielson & michael render (aka killer mike), rap’s poetic (in)justice: flashback, usa today (june 1, 2015), http://www.usatoday.com/story/opinion/2014/11/28/poetic-injustice-rapsupreme-court-lyrics-violence-trial-column/19537391/ [https://perma.cc/2vvk-22wm]. 350 columbia journal of race and law [vol. 7:2 ex-wife with coarse declarations like “if you really believe this s*** / i’ll have some bridge rubble to sell you tomorrow”?30 the roster of allied rappers expanded for the more sympathetic taylor bell, but it is still interesting to parse the scholarly analysis. professors kubrin and nielson situate the “pistol-whip” imagery within a lineage of certified rappers.31 again, is using a hackneyed image a marking of rap-as-art? what about an image employed by a rapper like gucci mane?32 sure, his moments of brilliance (i.e., his guest verse on “shine blockas” with big boi) are surreally triumphant. and his acting work in the harmony korine masterstroke, spring breakers, will make him the subject of future film historians.33 but this is also the same gucci mane who is fifty percent responsible for the cultural dross of baytl. the amici keyword search query compilation of “pistol” in published rap songs reminds one of justice scalia’s aphorism of legislative history: as a methodology of “counting your friends” rather than considering the integrity of the source.34 iii. law and literature / law and rap previous scholarship on law and rap tends to this common law method of putting forward a jurisprudence of rap 30 elonis, 135 s.ct. at 2006–07. 31 brief for erik nielson et al. as amici curiae supporting petitioner, supra note 3, at 16. 32 id. (referring to track “texas margarita”). the author grew up in atlanta, and thus figured a soft spot for the gucci oeuvre to be founded in semi-rational hometown pride. 33 cf. the best movies of 2013 (the playlist staff top 10s), indiewire (dec. 31, 2013) (placing second on critic katie walsh’s year-end list). 34 see, e.g., elizabeth a. leiss, censoring legislative history: justice scalia on the use of legislative history on statutory interpretation, 72 neb. l. rev. 568, 574 (1993). no. 2:341] rap exegesis 351 (butler,35 murrell,36 cummings37) and then locating a rap or rapper that provides precedential support. this is a selective form of argument construction, and one that provides an incomplete portrait of the varied landscape of rap music. lawyers are often guilty of a “presentist” use of historical data, but cultural historians are not. is feels a bit teleological to place the genre-breaking acid house/soul power/haute couture kanye west into a trajectory of ancestral storytelling traditions.38 a relevant analogue is judge posner’s jeremiad on the relevance of literary hermeneutics to legal method: his law and literature.39 in this important text, posner surveys his encyclopedic knowledge of the western canon, and spins a theory of literature based on citation to literary precedent. posner has been faulted for a conservative definition of what counts as canonical, but this is not as much his personal foible as a reflection of trends in education.40 posner is a voracious reader by any standard, and each of us suffers from gaps in our personal knowledge of primary authority. nor does this article fault law and rap scholars for coalescing around the same cohort of rappers; in particular, the political rap of the 80s, the gangster rap of the early 90s, and the conscious rap of the late 90s. it is natural for individuals to write about what they are most familiar with. and in the sprawling world of rap, encyclopedic knowledge is perhaps impossible. but 35 e.g., paul butler, much respect: toward a hip-hop theory of punishment, 56 stan. l. rev. 983 (2004). 36 matthew murrell, this is real hip-hop: hip-hop’s rejection of paul butler’s theory of justice in let’s get free, 2011 geo. l.j. 1179 (2010). 37 andre´ douglas pond cummings, thug life: hip-hop’s curious relationship with criminal justice, 50 santa clara l. rev. 515 (2010). 38 e.g., cheryl l. keyes, the roots and stylistic foundation of the rap music tradition in rap music and street consciousness 17–38 (2002). but see patricia tang, the rapper as modern griot, in hip-hop africa: new african music in a globalizing world 79, 81 (eric charry ed., 2012) (“in a 2006 interview with playboy magazine, rapper kanye west suggested that he would be a griot in a modern-day bible.”). 39 see richard posner, law and literature (3rd ed. 2009). 40 e.g., john fischer, reading literature/reading law: is there a literary jurisprudence?, 72 tex. l. rev. 135, 152–55 (1993). 352 columbia journal of race and law [vol. 7:2 should this not remind the rap theorist that this same sprawl limits the possibility of forming a general theory of rap? i met a critic . . . she thought hip hop was only guns and alcohol/ i said “oh h*** naw!” but yet it’s that too/ you can’t discrima-hate cause you done read a book or two andre 3000, humble mumble (2000) judge posner has been criticized by the literati for his instrumental approach as a reader.41 posner comes to literature with the same sensibility as a lawyer coming to a westlaw results survey: what useful knowledge can i glean from this novel and how might i categorize it? one might ask if this is inconsistent with the very purpose of literature. we might ask a similar question of the rap scholar: is a record to be mixed and mastered for evidence of a grand political theory?42 while it is true that much of rap is political, this is not a conditional attribute. and it is certainly does not have to be didactic. contemporary hermeneutics has had limited influence on juridical practice. peter brooks notes that recent obituaries for law and literature have eulogized the movement.43 insight from literary and interpretive theory has spurred thoughtful academic work in this field, and has helped make a generation of law students more careful readers. but to the extent this project has possessed the programmatic goals of informing judicial method it has been less successful. the law is perhaps too reified, too masculine to fold to the belletristic world of letters and language.44 the 41 e.g., james boyd white, what can a lawyer learn from literature?, 102 harv. l. rev. 2014, 2016–18 (1989). 42 cf. ronald d. brown, the politics of “mo’ money, mo’ money” and the strange dialectic of hip-hop, 5 vand. j. ent. l. & prac. 59 (2003). 43 peter brooks, law, literature: where are we? at 61, in teaching law and literature (2011). 44 julie stone peters, law, literature, and the vanishing real: on the future of an interdisciplinary illusion at 80, in teaching law and literature (2011). no. 2:341] rap exegesis 353 law is coercive and utterly practical. it resists an open texture, or being a vehicle for some kind of rarefied intellectual game. the law is consequential. to expect codified statutes to bend to barthes,45 or judges to remove the personality of their peers from opinions is quixotic. it is an axiom of common law method that the weight of an opinion is tied to the credibility of the author. it is aristotle’s ethos. the writer of the judicial opinion always lurks. but the use of rap lyrics in court gives unique practical value to academic trends in interpretation. courts read raps not only in the context of a true threat to commit a future crime, but as a confession of a previous crime, or as an index of knowledge or modus operandi.46 they are part of the fabric of evidence. unlike the statute or regulation, their dual quality as aesthetic and truth documents makes them amenable to literary construction. i doubt the utility of barthes’ “death of the author” here. as argued earlier, the identity of the rapper provides a depth of meaning to the lyric, which the able rapper can play off for literary effect. instead, this article argues for the relevance of stanley fish. “how to recognize a poem”47 provides a frame for “how to recognize a rap.” or more specifically, how we recognize who is a rapper. the jeffries court has asked for a test to help distinguish rap-as-art from rap-as-pretext. instead of dennis’ claim that experts like kubrin be invited to discern the genuine rap lyric, this article asks for the reader-response theory writ large—what does the internet think? fish is identified with the birth story of reader-response. the paradigmatic hypothetical is his syllabus left on the chalkboard for the next classroom of medievalists. the students brought their own meaning to the surface of the text, constructing a poem out of the reading list. repeated trials 45 see generally roland barthes, the death of the author (richard howard, trans.) (1967). 46 dennis, supra note 9, at 33; see also state v. cheeseboro, 552 s.e.2d 300 (s.c. 2002). 47 stanley fish, how to recognize a poem when you see one, in is there a text in this class? (1980). 354 columbia journal of race and law [vol. 7:2 proved to fish that the constructed meaning of a document depends on its interpretative community—or, to borrow the language of calvert et al., the intended audience of a rap.48 the reason that i challenge kubrin’s expertise, or that of any individual expert, is the inherent disparate nature of rap music. as one man’s lyric is another man’s vulgarity (cohen v. california), one (weirdo) rapper’s song is another (old school/conscious/gangster) rap fan’s drivel. a unitary hip-hop culture no longer exists, and perhaps neither does the pangenre rap fan. all i want to know is why they hating on me trinidad james feat. ilovemakannen, “h.o.m.e.” (2014) rap scholars frequently tell the birth story of rap music. this is interesting because there does not seem to be much debate as to its genesis. the usual history begins with 1970s south bronx, and traces the early work of herc and africa bambataa to the street sermons of grandmaster flash and kurtis blow to public enemy, n.w.a. etc. some scholars go back further, citing the proto-emcee’ing of jamaican toasting or even the crosstalk of the antebellum south.49 this framing signals a lineage of polysemic wordplay, and of the use of vocal modulation to add musicality to the spoken word. but one might question whether a historian is required to confirm this overt rap quality. the more intriguing question is concerning the relevance of early rap history to the contemporary rapper. the lawyer cites to the canon to anchor their reasoning and provide legitimacy for their argument. it is less obvious why the rapper cites to the rap “canon,” or whether contemporary rappers even share the basic assumptions of previous generations of rappers. for the old school, or gangster, or conscious rapper, “word is bond.” but for some rappers, do the words even matter? 48 calvert et al., supra note 16, at 22–25. 49 e.g., keyes, supra note 38. no. 2:341] rap exegesis 355 i’m a f****** walking paradox, no i’m not50 tyler the creator, “yonkers” (2011) song lyrics are commonly assumed to be a vehicle for atmosphere, unformed emotion or the ineffable. rap lyrics are no different. and while the wordplay of rap adds dimension to the texture of a song, this wordplay is not necessarily instrumental or meant to inform the listener of meaning. wordplay can also be indulgent, or an exercise in abstraction. the contemporary rapper might use wordplay not only as testament to the power of language but to deconstruct words into the weightless, diaphanous and contingent things they are. words are words are words are words. iv. rethinking rap: beyond words abstract, abstract, abstract. abstract, abstract, abstract, abstract, abstract, abstract, abstract … kool a.d., “exotische kunst” (2014) what happens to rap music when language is no longer viewed as didactic, but as sonic bits and fragments meant to be played upon for listener effect? the recent turn from gangster and conscious rap has increased the aesthetic merit of rap while at the same time re-conceptualizing the rap lyric. killer mike is widely recognized as a front-rank rapper and is unique in his versatility—killer mike is simultaneously highbrow, street, playful, serious, avant-garde, old school, political, fun, funny, inclusive, afrocentric, industrial and employs a dexterous flow that can range from buttery to the double-time cadence of techn9ne. killer mike is singular in how he transcends the multitude genres of contemporary rap. and perhaps another trait that distinguishes killer mike and run the jewels bandmate el-p is their emphasis on lyrical prowess. run the jewels is associated with internally dense 50 joyce, tyler the creator on “yonkers”: “that beat was made as a joke.”, pigeons and planes (feb. 17, 2016), http://pigeonsandplanes.com/2016/02/tyler-the-creator-on-yonkers-thatbeat-was-made-as-a-joke/ [https://perma.cc/2xqd-r34y]. 356 columbia journal of race and law [vol. 7:2 lyrics and baroque wordplay.51 lyrical rap is obviously an important form of rap, but perhaps it is no longer the only form. after all, as kendrick lamar says, if it were, “then killer mike [would] be platinum.”52 for rappers like chief keef, words seem to also function as a vehicle for non-verbal concepts like our primordial id. chief keef is the most visible representative of chicago’s drill rap scene.53 drill is chicago-specific in many facets, and feels symptomatic of a city seemingly endemic with gun violence and police corruption. but drill also tracks a more general vector of “crunk” to “hyphy” to “trap” over the last decade. this cluster of rap is marked by its pounding beats, and particularly crunk, trap and drill are associated with shouted, persistent lyrics. bonecrusher, with the assistance of killer mike and t.i., repeated that he is “never scared” in his 2003 song; waka flocka’s breakout 2009 trap anthem “hard in da paint” is near constant—and highdecibel—hook; chief keef ends most every sentence in his eponymous “i don’t like” by reminding the listener that there are many people and things he doesn’t like. but the rapilliterate audience would be shallow to read the chief keef oeuvre as merely an unfiltered expression of youth aggression. critics like mayor rahm emmanuel are correct that many of his lyrics are explicit. but chief keef is surely a savvy artist and understands how image juxtaposes with lyric and emotion. the repetition of his lyrics helps to transform them from 51 david drake, run the jewels: last rappers standing, pitchfork (oct. 29, 2014), http://pitchfork.com/features/article/9532-run-the-jewelslast-rappers-standing/ [https://perma.cc/g7y9-c7mg] (“as writers, they've continued to push themselves, rapping with studiously dense internal rhymes, a baroque, wordy style that has the muscular punch of a comic book.”). 52 kendrick lamar, hood politics in to pimp a butterfly (2015) (referencing the platinum music sales threshold of one million albums). 53 “drill” is a booming, guttural, gritty form of music distinguished by its violent themes and, notably, from the conscious brand of chicago rap identified with persons like common. no. 2:341] rap exegesis 357 description to commentary. indeed, early youtube footage of chief keef suggests the work of an auteur.54 chief keef is a manifestation of west chicago as well as a living, if raucous, diary of its violence. by illegalizing the icon of chief keef, is the state marginalizing, while possibly glamorizing, an important dissident voice? political speech does not have to be overtly political. and in today’s poetics of rap, speech does not even need to be speech. alan ginsburg’s howl is now young thug’s ululating yelp. indeed, who would have predicted new york rap would be saved in part55 by two hyper-literate neo-beatniks, victor vasquez (“kool a.d.”) and himanshu suri (“heems”)? their band, “das racist,” was birthed in a deconstructive mission to “saw the legs out from under hip-hop as they celebrate it.”56 their catalog is cerebral without being conscious, and poetic while improvising on the dadaist banner of separating words from meaning. in an interview with the village voice, suri quipped his “top five favorite poetic devices of all time are repetition, repetition, repetition, repetition, and repetition.”57 vasquez concurred, though noting the relevance of 54 e.g., djkenn allornothing, do it for my town, youtube (apr. 27, 2011), https://www.youtube.com/watch?v=ybvrxajlmb8 [https://perma.cc/bc4n-pdax]. 55 there might not be causality here, but there does seem to be anecdotal truth to das racist hypeman dapwell’s memory: “when we started in 2009, 2010, there wasn’t a new york rap scene. all that [s***] wasn’t around.” jordan sargent, das racist bail on munich show, announce split on twitter, spin (dec. 3, 2012), http://www.spin.com/2012/12/das-racist-breakup-twitter-heems-kool-addapwell/ [https://perma.cc/627p-vjqp]. 56 josh eells, pizza hit: meet das racist, the smartest stupid guys in the room, new york magazine (aug. 2, 2009), http://nymag.com/arts/popmusic/features/58183/ [https://perma.cc/sy4zzule]. 57 rob harvilla, a chat with das racist, the geniuses behind “combination pizza hut and taco bell, the village voice (june 17, 2009), http://www.villagevoice.com/music/a-chat-with-das-racist-the-geniusesbehind-combination-pizza-hut-and-taco-bell-6392479 [https://perma.cc/3epb-dsg9]. 358 columbia journal of race and law [vol. 7:2 “plagiarism”58 as well. this reference to repetition is characteristically post-ironic, and suggests a nod to their viral internet 2009 song “combination pizza hut and taco bell,” whose lyrics are centered on each rapper reiterating that they are at the pizza hut-taco bell on jamaica ave. the lyrics never explicitly deride the existence of a fast food italianmexican restaurant as an appropriative, insipid yum! brands fusion. but one online magazine agrees that the repetition and awareness of the rappers make the song “an existential meditation on consumer identity.”59 post-modern hermeneutics can perhaps manage this. but can something as literal as the law? what are courts to do it when the context of the text is itself a joke? how might a rap expert like kubrin provide jury instruction for that? we’re not joking / just joking / we are joking / just joking / we’re not joking das racist, “hahahaha jk?” (2010) repetition as meta-commentary is not new to rap. the facially misogynistic lyrics of the beastie boys “girls” can easily be interpreted as parody. “i’m black y’all” in the chris rock film cb4 suggests both the power of and limits to ethnocentricity in art. a more recent play on repetition and realness is kendrick lamar’s “real” from good kid/m.a.a.d. city. the looping refrain of “i’m real/ i’m real/ i’m really really real” underscores kendrick’s sense of integrity and knowledge of self while commenting on constructed notions of realness in rap music. a broader question is that given the counternarrative to conspicuous consumption and authentic identity in rap, such as the roots’ “what they do” music video from illadeph halflife, why is it that law and rap scholars cite to 58 see kim d. chanbonpin, legal writing, the remix: plagiarism and hip hop ethics, 63 mercer l. rev. 597 (2012). 59 song of the day: das racist, death + taxes (apr. 6, 2009), https://web.archive.org/web/20100430080720/http://www.deathandtaxesma gazine.com/2009/04/song-of-day-das-racist.php [https://perma.cc/3h8r5vuh]. no. 2:341] rap exegesis 359 gangster rappers as an index that rap is actually not literal?60 this seems like an unwise choice of precedent, especially when there are available sources (e.g. kool keith) who take on new identities for each consecutive album. but what this article is more curious about is how we as a society are supposed to respond to the advent of the rapper-as-troller. “trolling” is understood as the internet phenomenon of a commenter/commentator instigating conflict or assuming contrarian positions for the sake of annoyance. but what do we do when the troller is not anonymous, but a public artist? what if the artist’s very identity functions as a playful sort of agitprop? v. legal protection for living life as art the stanley fish question of how to decide who is a rapper intersects with the dramaturgical aspects of the rapper in society. when are these rappers performing, and for whom? consider the histrionics of experimental industrial-rap outfit death grips.61 their aesthetic output is non-linear, prolific, ad hoc, profound, profoundly subversive and profoundly frustrating. are they even a band? death grips added a new dimension to performance art by deliberately not showing up for scheduled gigs in what has been interpreted as a ploy to annoy fans.62 but perhaps their point was to jeer at the notion of a live band in the twentieth century: in our new paradigm of internet music does a band still need to be tactile, in living color, vital, real? what are the boundaries between life and art for the contemporary band? to what extent is the public 60 see, e.g., charis e. kubrin & eric nielson, rap on trial, 4 race and justice 185 (2014). 61 their breakthrough album, the money store, is especially acclaimed, and is the first contemporary album to receive a perfect 10/10 from anthony fantano of the the needle drop (“the internet’s busiest music nerd”), see the needledrop, death grips-the money store album review, youtube (apr. 20, 2012), https://www.youtube.com/watch?v=mk54p7vem1g [https://perma.cc/z8ed-t6dp]. 62 e.g., mike powell, death grips: a eulogy, pitchfork (july 7, 2014), http://pitchfork.com/thepitch/394-death-grips-a-eulogy/ [https://perma.cc/ccb7-h4ts]. 360 columbia journal of race and law [vol. 7:2 responsible for constructing the identity of a “band” like death grips? is the very identity of death grips an elaborate piece of performance art? the law’s textuality also makes it less able to manage problems in performance art. “traditional” performance art is distinguished by its transience, decay, spontaneity, conceptuality and non-verbal orientation. all of these things make it inherently difficult—perhaps impossible—to copyright. these tensions were made palpable last decade when marina abramovic curated a sort of “greatest hits” of performance pieces from the last half-century.63 the illegalization of the icon of chief keef brings into focus these related issues of law, artistic protection and the life-as-art identity in society. for most certified rappers—chief keef, tyler the creator, and action bronson—criminal lyrical content is not the central problem, it is their freedom of personality.64 in the internet society, everyone markets their personal brand, including law professors. how are we to manage the problem of locating the boundaries of artistry in a brand-saturated society? and what are the potential transgressive implications of outlawing an identity? the chief keef story is a post-modern city saga. teenage keith cozart/chief keef drops out of school at age 15, sells heroin, gets in trouble, raps, raps about selling heroin (“pure white”), helps create raw drill sound, releases mixtape, uploads youtube videos, gets in trouble, etc., releases album, performs concerts, gets in trouble, etc.65 embattled chicago mayor rahm emanuel then expels chief keef from local 63 see, e.g., david bollier, performance art as property, on the commons (nov. 11, 2015), http://www.onthecommons.org/performance-artproperty [https://perma.cc/e4cu-x7ja]; see also performance art and the law, artquest, https://www.artquest.org.uk/artlaw-article/performanceart-and-the-law-2/ [https://perma.cc/3clt-jmwy]. 64 but see kubrin & nielson, supra note 60, at 186 (describing criminal court use of lyrics by professional rappers lil’ boosie and b.g.). 65 chief keef: top 10 facts you need to know, heavy (apr. 17, 2015), http://heavy.com/news/2013/08/chief-keef-christopher-lane-rapper/ [https://perma.cc/5wkz-dz9b]. no. 2:341] rap exegesis 361 venues, citing the potential “significant safety risk” as well as his unacceptable image for city youth. it is well-settled doctrine that a generalized safety worry does not justify preemptively shutting down a public event (terminiello v. city of chicago). keef’s mere presence does not create a specific threat. it also feels hypocritical that emanuel—the dance major alum of outré sarah lawrence college66—is responsible for censoring an innovative artist. the postmodern turn comes when authorities in local hammond, indiana later shut down the projection of chief keef’s hologram appearance. again, his hologram, his projected image, was blocked. in the united states, holographic performances are most associated with posthumous acts like tupac shakur.67 rap patron and greek shipping heir alki david has been instrumental in the digitization of the still living keef. this past september the hologram version of chief keef was again shut down from public performance in los angeles.68 i concur with professor volokh that denying a hologram projection is facially inconsistent with terminiello, and distinguished from the “imminence” tests of criminal incitement.69 authorities may be concerned by chief keef’s reputation, but there are surely other rap musicians and 66 john kass, rahm, dance and the importance of negative space, chicago tribune (apr. 6, 2017), http://www.chicagotribune.com/news/columnists/kass/ct-rahm-emanueldancer-kass-0407-20170406-column.html [https://perma.cc/88cb-5j9p]. 67 see generally shannon flynn smith, if it looks like tupac, walks like tupac, and raps like tupac, it’s probably tupac: virtual cloning and postmortem right-of-publicity implications, 2013 mich. st. l. rev. 1719 (2013). 68 e.g., rebecca haithcoat, chief keef’s l.a. hologram show goes on, but is shut down by police again, billboard (sept. 19, 2015), http://www.billboard.com/articles/columns/the-juice/6700644/chief-keef-losangeles-hologram-show-goes-on-but-is-shut-down-by-police [https://perma.cc/5lpt-vm4g]. 69 see, volokh, supra note 17 (imminence is interpreted strictly to require immediate action); see also eric zorn, sorry, the constitution protects chief keef too, chicago tribune (july 28, 2015), http://www.chicagotribune.com/news/opinion/zorn/ct-chief-keef-has-rightsperspec-zorn-0729-20150728-column.html [https://perma.cc/4khs-rxhc]. 362 columbia journal of race and law [vol. 7:2 broad genres of music, such as punk, folk, and others, that have been connected with anti-authority values. to outlaw a musician might be counter-productive to the extent that it provides a transgressive edge. naomi mezey, in “law as culture,” explores the relationship of the columbine response to the possible glamorization of things like guns or the black trench coat.70 is emanuel only making drill culture more attractive to certain youths by illegalizing it? vi. free earl / but why not welcome tyler? connected to the illegalization of the chief keef image is the uk and australia’s denial of entry to rapper tyler the creator. the story of tyler the creator is in many ways a story of internet rap. tyler and his friend group of precocious, skateboard-loving pranksters gained notoriety in the obscure corners of youtube in 2010 with their pugnacious form of rap and rap video. his posse, odd future wolf gang kill them all (“ofwgkta”), quickly transformed from a loose clique goofing off on the internet into a viral sensation. their lyrics were admittedly juvenile and marked by a macabre kind of violence.71 ofwgkta attracted attention for both their palpable talent and provocateur aesthetic.72 the two standouts from the first iteration of ofwgkta were production guru tyler and rap prodigy earl sweatshirt. 70 naomi mezey, law as culture, 13 yale j.l. & human. 35, 59 (2001). 71 chaz kangas, the history of horrorcore rap, la weekly (nov. 5, 2013), http://www.laweekly.com/music/the-history-of-horrorcore-rap4168562 [https://perma.cc/d4dc-g4ss] (“horrorcore” is a long-time subgenre of rap and enjoys a lineage from 1990s acts like gravediggaz and insane clown posse to contemporary groups like flatbush zombies). 72 cf. eric thurm, earl sweatshirt and tyler, the creator’s odd future as mature adults, pitchfork (apr. 9, 2015), http://pitchfork.com/thepitch/731-earl-sweatshirt-and-tyler-the-creatorsodd-future-as-mature-adults/ [https://perma.cc/2g9j-vdfd]. (“many rappers/artists attempt to identify their personae with their selves as much as possible; earl and tyler exaggerate their character until it’s impossible to identify with the human being underneath.”). no. 2:341] rap exegesis 363 concerned with adolescent fame and declining grades, earl’s mother swiftly enrolled him in a samoan boarding school until he reached the age of 18. the mystery of his absence (no details were publicly disclosed to his whereabouts) served as its own kind of pr, inciting an internet-based “free earl” campaign.73 rap audiences were eager for earl’s return and the release of his first full-length album doris, a pithy, confident work that suggested earl’s evolution from the gratuitous shock of his teenage lyrics to more mature, introspective themes. for rap audiences, and for state foreign ministries, earl’s early oeuvre is understood for what it is—art. perhaps a very puerile form of art, but still non-literal, non-representational, and not evidence of earl-asreal-life-dude. tyler has also matured since his early rap output.74 indeed, his most recent full-length, cherry bomb, has been criticized by fans for being too positive.75 if anything, rap audiences might consider tyler to be too rehabilitated, to have lost an edge or energy that gave his songs a signature raw quality. so it is surprising that only recently has the feminist group collective shout worked to successfully deny tyler the creator entry to tour australia and the united kingdom. (tyler is banned from the united kingdom for 3-5 years for 73 see, e.g., kelefa sanneh, where’s earl? word from the missing prodigy of a hip-hop group on the rise, the new yorker (may 23, 2011), http://www.newyorker.com/magazine/2011/05/23/wheres-earl [https://perma.cc/sxe5-braz]. 74 see, e.g., alex frank, why tyler, the creator’s gay pride shirt is more than just a fashion statement, gq (may 8, 2015), http://www.gq.com/story/tyler-the-creator-gay-pride [https://perma.cc/dy38-jn6x]. (“it’s a juvenile spin, the type he usually makes brattily, but it’s genuine in a way he’s not been before.”). 75 ryan middleton, tyler, the creator responds to fan criticism about “cherry bomb”, music times (june 20, 2015), http://www.musictimes.com/articles/41274/20150620/tyler-the-creatorresponds-fan-criticism-cherry-bomb.htm [https://perma.cc/6mqf-vwj8]. (“on an odd future reddit thread a fan vented their frustration that the “smuckers" rapper's recent album cherry bomb was not depressing enough . . . [a] short while later, tyler responded on the social network spring.me with a lengthy post about positivity and growing as a person . . . [w]hy cant i share my joy with the world?”). 364 columbia journal of race and law [vol. 7:2 encouraging “terrorist acts”76). and while a full roster of rappers came to the defense of young taylor bell, few have come to the aid of tyler.77 sure, his past lyrics were at times undeniably awful to women. but when these lyrics are situated within his scorched earth, ominous form of production, they are heard to be overtly fantastical and a sublimation of the dark recesses of his own psychology. the words are arguably a vehicle for expressing his angst of growing up without a father as much as any honest description of his feelings towards women or lgbtq individuals.78 this is distinguished from some of the content of conscious rappers who earlier in their career articulated comparably awful thoughts with a literality and deliberateness that seemed to portray their actual feelings.79 76 nancy groves, tyler, the creator cancels australian tour after visa ban campaign, the guardian (aug. 10, 2015), https://www.theguardian.com/music/2015/aug/10/us-rap-artist-tyler-thecreator-cancels-australian-tour-after-visa-ban-campaign [https://perma.cc//x3sc-q2gh]. 77 harry fletcher, foals think tyler, the creator’s uk ban highlights ‘stupid government bureaucracy’, digital spy (aug. 30, 2015), http://www.digitalspy.com/music/news/a666085/foals-think-tyler-thecreators-uk-ban-highlights-stupid-government-bureaucracy/ [https://perma.cc/wz7a-xkp8]. (oxford indie band, foals, is one of the few music groups to comment: “the lyrics they’re banning him for are from six years ago and are no more offensive than the lyrics of a lot of other rappers who are freely allowed to come to the uk.”). 78 julianne shepherd, the new underground: the loud family, spin mag., dec. 2011, (quoting tyler, “i’m probably one of the least homophobic rappers in the world.”); see also tyler, the creator reveals range of anti-homophobia merchandise, nme (may 8, 2015), http://www.nme.com/news/tyler-the-creator--3/85233 [https://perma.cc/fsb5-6uq8] (more recently quoting tyler, “i’m legit one of the least homophobic guys to walk this earth but, most people just read the surface.”). 79 see, e.g., phillip mlynar, high five: common’s not-so-socially conscious past, mtv (dec. 20, 2011), http://www.mtv.com/news/2695145/hive-five-bad-common-lyrics/ [https://perma.cc/8faj-h7hl]; see also kyle “guante” tran myhre, homophobia in “conscious” rap, guante (feb. 8, 2007), http://www.guante.info/2007/02/article-conscious-rappers-and.html [https://perma.cc/v4xc-3nbu]. no. 2:341] rap exegesis 365 why are these other rappers able to be rehabilitated, but tyler can’t move on from his teenage identity?80 is it because tyler skateboards? or because of his blackness?81 or because tyler seems to be laughing at us and a hip-hop culture of ebbing influence? vii. the rise (and fall?) of the weirdo rapper: separating product and persona i was born this way, halfsharkalligator / is he weird … ? dr. octagon, “halfsharkalligatorhalfman” (1996) rap scholars are quick to point out that rap music is only part of a larger umbrella movement of hip-hop. with rap are the kin disciplines of breakdancing, graffiti art, and record scratching.82 this ethnography of rap perhaps helps to explain to rap-illiterate audiences the early synergies between disciplines, and the street culture nucleus that informs much of rap content. but to the contemporary rapper it seems especially unclear why breakdancing and graffiti art relates to lyrical meaning.83 rap music’s dna is evolutionary and future-oriented. its associated dances are correspondingly fresh (e.g., the dab, the tootsie roll, the jerk, the dougie, the superman, the whip/nae nae, the footwork, the quad-city 80 see joe muggs, once you start banning rappers like tyler, the creator, where do you stop?, the guardian (aug. 27, 2015), http://www.theguardian.com/music/musicblog/2015/aug/27/rappers-tylerthe-creator-uk-visa [https://perma.cc/fh5v-c2en] (“the teenage lashing out demonstrated in his 2009 lyrics are often pulled out to demonstrate his offensiveness, but they were only ever part of a cascade of adolescent angst, the raging of a turbocharged 21st-century holden caulfield.”). 81 see kris ex, op-ed: would chris brown be allowed in australia if he were white?, pitchfork (oct. 1, 2015), http://pitchfork.com/thepitch/923-op-ed-would-chris-brown-be-allowed-inaustralia-if-he-were-white/ [https://perma.cc/j5bw-wa43] (asserting that black artists like chris brown are more often banned from performing for their past wrongs than white artists). 82 see, e.g., brief for marion b. brechner first amendment project et al. as amici curiae supporting petitioner, supra note 5, at *6. 83 the author is an occasional rap concert goer and frequent internet trawler, yet has few vivid memories of rappers breakdancing. 366 columbia journal of race and law [vol. 7:2 train, the getting jiggy with it, the hammer time, the chicken noodle soup, the c-walk, the bankhead bounce, the gangnam style,84 the bernie, the hotline bling). but how many contemporary rappers even pride their dancing ability, breakdancing or otherwise? pitchfork contributor andrew ryce suggests that drake recently achieved the singularity in his viral video for “hotline bling.”85 but drake did not enter the entertainment industry via breakdancing or graffiti art; he entered via acting. many other front-rank contemporary rappers share an on-screen personality and broad genius, and seem to continue rapping in part because it is a medium particularly well suited to show off one’s charismatic personality. drake makes use of his singing chops as much as his rap delivery, and has helped contribute to the re-evaluation of what rap is. consider the current #rapgame dominance of sing-songy “rap weirdo”86 young thug, who is “literally . . . famous for being unintelligible.”87 listen to drake’s own 2014 collaboration with ilovemakannen, “club goin’ up on a tuesday.” this song is instantly catchy. but to the hip-hop purist is this track even a rap? 84 see, e.g., psy, britannica, https://www.britannica.com/biography/psy [https://perma.cc/f2hwcykk]. here, psy indicates that he, in part, identifies as a rapper. 85 the best 100 tracks of 2015, pitchfork (dec. 13, 2015), http://pitchfork.com/features/lists-and-guides/9765-the-100-best-tracks-of2015/ [https://perma.cc/ngx9-azq9] (ryce theorizes on the drake singularity in his write-up for “hotline bling,” the number two track of 2015). 86 eric diep, young thug releases new mixtape “thug 1017,” xxl (feb. 23, 2013), http://www.xxlmag.com/news/2013/02/young-thug-releasesnew-mixtape-1017-thug-download-now/ [https://perma.cc/z5zg-b6j2] (“1017 bricksquad’s young thug has been offering his youthful exuberance to the roster and playing the role as rap weirdo.”). 87 devin friedman, young thug is an atlien (and the best rapper alive), gq (feb. 16, 2016), http://www.gq.com/story/young-thug-bestrapper-alive-interview [https://perma.cc/d5wn-ngd5]. (“he’s the most successful lyricist in the history of the world whose thing is that you can’t understand what the [f***] he’s talking about.”). no. 2:341] rap exegesis 367 have no apprentice, style uninherited danny brown, “pac blood” (2011) the law and rap historiography not only confuses the association of things like graffiti art or breakdancing to contemporary rap, but perhaps also mischaracterizes the relevant rap canon. reviewing the nielson and kubrin brief for elonis (2014), all rap citations are prior to 2003. the artists’ brief in bell includes track references of recent vintage, but little alternative rap. cummings, murrell and butler each comment on the same population of old school, gangster or conscious rappers. butler’s first piece is from 2004.88 but cummings, writing in 2010, focuses only on public enemy, n.w.a., queen latifah, krs-one, tupac shakur, talib kweli, common and lauren hill (but without mention to stones throw, 75 ark or def jux record labels, mf doom, n.e.r.d., etc.).89 murrell builds a whole theory out of dead prez’ then decade-old album let’s get free (2000).90 are persons like young thug and ilovemakannen even doing the same thing as these supposed genre-equated artists? i don’t need rap, told you rap needs me heems, “rapping 2 u” (2010) tyler the creator instead cites pharrell (“skateboard p”; n.e.r.d. alum) and filmmaker wes anderson as his ultimate muses. for tyler, rap is merely one aspect of his lifeas-art persona, and a platform that he has found to be increasingly limiting (“i hate rapping . . . because it puts you in this box”; “i’m pretty bored with it”).91 “internet rapper extraordinaire danny brown”92 cited radiohead’s kid a as 88 butler, supra note 35. 89 cummings, supra note 37. 90 murrell, supra note 36. 91 larry king, interview with larry king with tyler, the creatorora tv, youtube (jun. 4, 2014), https://www.youtube.com/watch?v=llaffxi3zxk [https://perma.cc/7k6qqa5m]. 92 kia makarechi, danny brown on ‘magna carta holy grail,’ ‘yeezus’ and his own album, huffington post (july 15, 2013), 368 columbia journal of race and law [vol. 7:2 motivation for him to complete his bildungsroman.93 but the maestro of internet rap is decidedly “the based god” lil’ b. berkeley-bred lil’ b shares with odd future a skateboardpaved entry into rap. his breakout single with the pack is an ode to the archetypal skate shoe (“vans,” 2007). lil’ b now raps about most anything and everything, and his discography extends to the length of a novella.94 lil’ b rhymes in the stream-of-consciousness tradition of iconic wordsmith mf doom.95 still, any characterization of lil’ b’s oeuvre is inherently reductive and misleading. it is at the same time experimental, derivative, ambitious, indulgent, crude, uplifting, literal, confused, direct, orthogonal, dexterous, wooden, transcendent, and idiosyncratic. but core to all of lil’ b’s music is its felt “based-ness,” a reflection of the preternaturally empowering and optimistic ethos of lil’ b himself. rarely do the words matter. they are seemingly indifferent to his project—to celebrate life, to affirm existence. it is the re-writing of waiting for godot with a happy ending.96 tracks like “birth of rap” and “i’m god” represent a peak form of based rap that captures the effortless genius of lil’ b. his raps often enter the same puerile and disturbed world of early odd future (e.g., “wonton soup”). but somehow lil’ b is able to suggest that we are in on the joke http://www.huffingtonpost.com/2013/07/15/danny-brown-magna-carta-hailyeezus_n_3588775.html [https://perma.cc/uf9v-56yv]. 93 eric diep, danny brown talks the process behind his forthcoming album “old”, xxl (jan. 28, 2013), http://www.xxlmag.com/news/2013/01/danny-brown-talks-the-processbehind-his-forthcoming-album-old/ [https://perma.cc/gkq6-h3pr]. 94 lil’ b discography, factmag (oct. 7, 2013), http://www.factmag.com/2013/10/07/download-45gb-worth-of-cult-rapperlil-b-including-all-his-albums-and-mixtapes-documentaries-lectures-andmore/ [https://perma.cc/2gxm-qwhh]. 95 cf. matthew perpetua, bradford cox talks nervous breakdown, new atlas sound album, rolling stone (nov. 7, 2011), http://www.rollingstone.com/music/news/bradford-cox-talks-nervousbreakdown-new-atlas-sound-album-20111107 [https://perma.cc/bwx6uyvy] (referring to the unconscious “automatic writing” process of the indie/ ambient bradford cox). 96 see generally bruce l. hay, the damned dolls, 26 l. & literature 321 (2014). no. 2:341] rap exegesis 369 with him, thus earning him plum invites on the academic lecture circuit (new york university, the massachusetts institute of technology, etc.) rather than banning him from international festivals. chef-artist action bronson possesses the same onscreen personality as drake, lil’ b, ilovemakannen and tyler the creator. and like tyler the creator, he has recently been denied concert privileges for degrading raps in his early oeuvre (he was removed from toronto’s north by northeast lineup, as well as the george washington university and trinity college’s annual spring concerts).97 bronson is well known for his hyperbolic, larger-than-life personality.98 he raps in technicolor about the worlds of ultra-gourmet eating and sex workers with equal ease. and, indeed, the scatological cover of saaab stories is an unfortunate example of his tendency to not recognize the boundaries of good taste. but bronson doesn’t seem to care what others think about his rapping. it may be because action bronson does not really care that much about rapping. he is currently exploring expanded opportunities as a viceland tv travel foodie.99 tyler the creator also seems content to leave his day job as a rapper and return to his sketch comedy work on the late night programming of adult swim (loiter squad). critically acclaimed long beach rapper vince staples has publicly 97 action bronson won’t play nxne show at yonge-dundas square, cbc news (may 29, 2015), http://www.cbc.ca/news/canada/toronto/action-bronson-won-t-play-nxneshow-at-yonge-dundas-square-1.3093643 [https://perma.cc/8fz2-jp44]. 98 see dennis, supra note 9, at 22–23 (comparing rap storytelling to the narrative “yarn”); see also matthew strauss, action bronson removed from another college concert, pitchfork (apr. 21, 2016), http://pitchfork.com/news/64973-action-bronson-removed-from-anothercollege-concert/ [https://perma.cc/a43x-35ec]. 99 adam chandler, where james beard meets rap, the atlantic (mar. 10, 2016), http://www.theatlantic.com/entertainment/archive/2016/03/action-bronsonvice/472995/ [https://perma.cc/5rc4-h3g4] (“the rise of action bronson, the rapper and former chef, is the apotheosis of hip-hop and food culture.”). 370 columbia journal of race and law [vol. 7:2 stated he might leave rap (he’s 23 years old).100 chief keef has toyed with the thought of retiring from rap (he’s 21),101 as has gender-fluid rapper mykki blanco.102 kanye west long withdrew from our commercial culture, and only allows us a sneak peak of his creative universe when the whim strikes. we can perhaps separate his wife kim kardashian’s electronic dance music (edm) from her “real” identity as reality tv star, see, e.g. her 2012 “jam (turn it up)”. it is less easy to separate kanye-as-artist from kanye-as-person. is kanye’s twitter feed a subversive kind of public mural? are we figurative/literal puppets in what has evolved to become kanye’s life/world? is his recent the life of pablo an album or a comment on the death of the album?103 his very meta music video for “famous” is the most recent evidence he has achieved his own singularity (cf. the picture of dorian gray). vanity fair shared this kanye quip on his marriage with kim: “our life is walking performance art.”104 but should the law help to protect this personal icon so he— and other up-and-coming emcees—does not leave us for 100 jake krez, vince staples asserts he’s prepared to quit rap, dj booth (dec. 2, 2015), http://djbooth.net/news/entry/2015-12-02-vincestaples-prepared-to-quit-rap [https://perma.cc/4r6e-ngf6]. 101 erika benton-martin, chief keef announces retirement, says too many rappers sound like him, music times (mar. 8, 2016), http://www.musictimes.com/articles/67104/20160308/chief-keef-announcesretirement-many-rappers-sound.htm [https://perma.cc/eew5-bwxc]. 102 yezmin villarreal, why mykki blanco is quitting rap to become an investigative journalist, advocate (mar. 24, 2015), http://www.advocate.com/arts-entertainment/music/2015/03/24/whymykki-blanco-quitting-rap-become-investigative-journalist [https://perma.cc/w8rc-h5j7]. 103 e.g., jack hamilton, the life of pablo is an attack on the very idea of the album, slate (feb. 19, 2016), http://www.slate.com/articles/arts/culturebox/2016/02/kanye_west_s_the_li fe_of_pablo_is_an_attack_on_the_very_idea_of_the_album.html [https://perma.cc/4d8y-vw4a]. 104 dirk standen, exclusive: kanye west on his “famous” video, which might be his most thought-provoking work yet, vanity fair (june 24, 2016), http://www.vanityfair.com/culture/2016/06/kanye-famous-videointerview [https://perma.cc/uu7c-ena7]. no. 2:341] rap exegesis 371 fashion, food, or other industries where persona is separate from product?105 viii. conclusion luckily, we already have a rubric by which to measure if a rapper has transcended from elonis to kanye: the interpretive community of rap listeners. genius.com began in its beta form as rapexegesis.com, but its handle quickly evolved into the more familiar diction of rapgenius.com.106 it reflects the interpretive method of reader-response by providing a platform for fans to aggregate meaning(s) of opaque or esoteric rap lyrics. why pay professor kubrin to lecture in court when we can simply read the insights provided for free by rap fans? this is what some rap fans do for fun, and perhaps this provides sincerity to the effort.107 the founders of now genius.com argue this is a novel kind of genre that transcends the mere transcription of lyrics.108 this name change to genius.com reflects a broader mission—to annotate the world. interestingly, we might be in the midst of a dialectic of “law and literature” to “rap” to “revised hermeneutics of law and literature.” the united states constitution is only one of many legal documents to now be annotated on law.genius.com.109 earlier, this article expressed skepticism 105 kubrin & nielson, supra note 64, at 203. 106 charles curkin, genius is out to annotate everything, surface (june 1, 2016), https://www.surfacemag.com/articles/genius/ [https://perma.cc/dgs8-6sg5]. 107 but see jonathon sturgeon, the genius of genius: welcome to the annotated age?, flavorwire (jan. 21, 2015), http://flavorwire.com/500272/the-genius-of-genius-welcome-to-theannotated-age [https://perma.cc/7v2c-vzj5] (contextualizing genius.com within a recent lineage of projects to monetize hermeneutics and questioning the democratic appeal of the website). 108 see e.g., sam guthrie, lyrical restraint: lyrics sites and copyright infringement, 31 sum ent. & sports law. 1 (2014). 109 the u.s. constitution (article 1), genius, http://genius.com/constitutional-convention-the-us-constitution-article-1annotated [https://perma.cc/66sl-sps3]. 372 columbia journal of race and law [vol. 7:2 of the bell amicus brief counting up the mentions of “pistolwhipping,” but perhaps it should be more open-minded to an algorithmic approach to legal interpretation. the test is not how many individuals like gucci mane have rapped the hackneyed rhyme of putting a pistol in someone’s mouth; instead, it is the number of rap fans who connect these references to their insider knowledge of the rap canon. star rappers have themselves joined genius.com to provide personal commentary on their tracks. nas uploaded video commentary on his classic illmatic debut.110 in a metaphysical turn, professor kubrin has begun to annotate her ted talk on expert work in gangster rap exegesis.111 in contemporary rap it has become increasingly difficult to assign textual meaning to a rap lyric. and in our media society it has become perhaps impossible to separate when rappers are in artist mode or acting as their true selves.112 a better question for courts and law and rap scholars is the one of who counts as a rapper. this might not help an aspiring emcee who cannot expect a genius.com profile. but it is also a reminder to the very local rapper that their lyrics are being heard or read if only by a direct social network of friends and acquaintances. bell and elonis should be cautious that online readers might interpret their postings as direct communication. for tyler the creator or chief keef, the same lyrics could inflect or reflect a collective experience for a general audience. in our evolution to a more public culture, it will be interesting to see if the internet trumps the individual expert in defining hermeneutical meaning. either way, the project of social knowledge should be fodder for both academic and jurist. 110 nas, genius, http://genius.com/nas [https://perma.cc/h3psgqwn]. 111 charis e. kubrin, genius, http://genius.com/charisekubrin [https://perma.cc/7kqz-vvfy]. 112 see, e.g., jimmy kimmel live, tyler, the creator raps the dr. seuss book, youtube (july 30, 2015), https://www.youtube.com/watch?v=jpkcmn_9rx8 [https://perma.cc/6a8p697t]. columbia journal of race and law rice paddies on the white house lawn: cfius & the foreign control requirement tricia reville* our peaceful trading partners are not our enemies; they are our allies. we should beware of the demagogs who are ready to declare a trade war against our friends—weakening our economy, our national security, and the entire free world—all while cynically waving the american flag. the expansion of the international economy is not a foreign invasion; it is an american triumph, one we worked hard to achieve, and something central to our vision of a peaceful and prosperous world of freedom.1 – president ronald reagan americans have long been skeptical of foreign investment in american companies. since the end of the second world war, congress and presidents have utilized the committee on foreign investment in the united states (cfius) to monitor foreign investments in the u.s. with national security concerns. however, determining what is “foreign” for cfius review purposes is not a straight-forward analysis given increasingly complex financing structures. this note traces developments in case law from an early twentieth-century case involving the treatment of a “colorless” corporation wholly owned by africanamericans, to mid-century trading with the enemy act cases during the second world war, to a more recent case involving an american company wholly owned by chinese nationals. modern courts have found that corporations can take on the race or national identity of their founders or investors, which, as this note describes in greater detail below, represents a shift in how the courts view corporat-ions. additionally, this note describes the inadvertent foreign person problem where a corporation majority-owned by americans, incorporated in america, and * j.d. candidate 2020, columbia law school. 1 president ronald reagan, president of the u.s., radio address to the nation on the canadian elections and free trade, ronald reagan presidential library & museum (nov. 26, 1988), https://www.reaganlibrary.gov/research/speeches/112688a. no. 10:1] rice paddies on the white house lawn 115 solely operated in america could become foreign for cfius purposes if the corporation received a substantial amount of foreign investment. this note will recommend that cfius stop using the foreign control analysis as a gatekeeping function. instead, cfius should shift the foreign control analysis to the formal review stage and use the scale of foreign control as informative rather than dispositive. this solution addresses national security concerns, promotes efficiency and effectiveness for all three branches of government as well as private industry, and adheres to american free-market and anti-discriminatory policies. i. introduction ............................................................. 115 ii. foreign direct investment in the united states and the creation of cfius ........................ 120 a. cfius creation and purpose ................................ 127 b. the trump administration and cfius ................ 135 iii. where are you really from? outdated requirements and distracting regulatory burdens ...................................................................... 138 a. challenges in determining corporate identity .... 142 b. the foreign person requirement ......................... 147 c. impact on private equity ...................................... 149 d. case study: from all-american to foreign .......... 151 iv. solutions to the inadvertent foreign person problem ...................................................................... 155 a. self-identification .................................................. 156 b. ignore foreign status ............................................ 159 c. presidential power ................................................. 161 d. expedited review process ..................................... 163 e. review all transactions with a national security implication .............................................. 164 v. conclusion ................................................................ 167 i. introduction the committee on foreign investment in the united states (cfius) has broad power to review and investigate transactions that 116 columbia journal of race and law [vol. 10:1 have potential “national security” implications.2 however, the review process only applies to “foreign”3 persons or entities making an investment or acquisition that would lead them to control a u.s. based business.4 while significant attention has been paid to treatment of businesses based on their country of origin (china in particular)5 and the specific industries that fall under cfius’ “national security” purview,6 very little scholarship has focused 2 james k. jackson, cong. research serv., rl33388, the committee on foreign investment in the united states (cfius) 1 (2018). 3 foreign entity, 31 c.f.r. § 800.212 (2018) (“[f]oreign entity” is defined in the statute as “[a]ny branch, partnership, . . . corporation . . . or organization organized under the laws of a foreign state if either its principal place of business is outside the united states or its equity securities are primarily traded on one or more foreign exchanges.”); foreign person, 31 c.f.r. § 800.216 (2018) (“[f]oreign person” is defined in the statute as “[a]ny foreign national, foreign government, or foreign entity” or “[a]ny entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.”). 4 31 c.f.r. § 800.212; 31 c.f.r. § 800.216; transaction, 31 c.f.r. § 800.224 (2018) (“[t]ransaction” is defined in the statute as “a proposed or completed merger, acquisition, or takeover.”). 5 see joshua w. casselman, china's latest 'threat' to the united states: the failed cnooc-unocal merger and its implications for exonflorio and cfius, 17 ind. int'l & comp. l. rev. 155 (2007) (examining cfius’ role in a failed merger between a chinese oil company and an american oil company); stephen sothmann, let he who is without sin cast the first stone: foreign direct investment and national security regulation in china, 19 ind. int'l & comp. l. rev. 203 (2009) (comparing chinese protectionist policies to cfius); angela huyue zhang, foreign direct investment from china: sense and sensibility, 34 nw. j. int'l l. & bus. 395, 395 (2014) (focusing on how organizations can leverage “public fear” of chinese investment). 6 see christopher m. tipler, defining 'national security': resolving ambiguity in the cfius regulations, 35 u. pa. j. int'l l. 1223 (2014) (stating that congress has not properly defined “national security” for cfius review purposes); joanna rubin travalini, comment, foreign no. 10:1] rice paddies on the white house lawn 117 on how the committee determines whether a business is “foreign” in the first place. if cfius’ review process hinges on the national identity of at least two businesses (the investor(s) and the investee(s)),7 how is a business’ national identity determined with increasingly complex and cross-border deals? the stakes are high— cfius has indefinite jurisdiction8 and the ear of the president and congress.9 there is no clear-cut test to determine nationality,10 which, this note argues, leads to over-policing companies and individuals considered “foreign.”11 most of the relevant scholarship on cfius to date, if it discusses nationality at all, focuses on sovereign wealth funds (swfs), which are investment direct investment in the united states: achieving a balance between national economy benefits and national security interests, 29 nw. j. int'l l. & bus. 779, 785 (2009) (addressing how 9/11 impacted the way cfius reviews transactions for “national security” implications); christopher m. weimer, foreign direct investment and national security post-finsa 2007, 87 tex. l. rev. 663 (2009) (focusing on which types of transactions impact national security); christopher fenton, note, u.s. policy towards foreign direct investment postseptember 11: exon-florio in the age of transnational security, 41 colum. j. transnat'l l. 195 (2002) (stating that post-9/11 focus on national security and fdi increases executive authority to alter crossborder transactions). 7 jackson, supra note 2, at 1, 9. both sides of the transaction matter for cfius review purposes. cfius only reviews transactions that may pose “a risk to the national security,” so the investee(s) identity also matters for determining if the transaction will impact national security. id. 8 thomas m. shoesmith et al., cfius: inadvertent “foreign person” status, pillsbury winthrop shaw pittman llp 2 (2018), https://www.pillsburylaw.com/images/content/1/1/v2/118163/clientbriefing-cfius-inadvertent-foreign-person-status-jul.-2.pdf. 9 jackson, supra note 2, at 1; see infra section ii.b. (cfius creation and purpose). 10 see infra section iii.a. (challenges in determining corporate identity). 11 see infra section ii.b. (cfius creation and purpose). 118 columbia journal of race and law [vol. 10:1 funds closely affiliated with a sovereign government, or on stateowned enterprises (soes), which are run under the control of a sovereign government.12 this note attempts to fill the gap of legal scholar-ship analyzing cfius through the lens of what it means to be “foreign.” over-policing of foreign investment in the name of national security via cfius has led to decreased investment in the u.s. from china,13 will likely lead to overall decreased invest 12 adam gutin, comment, regulating sovereign wealth funds in the u.s.: a primer on swfs and cfius, 5 fiu l. rev. 745 (2010) (discussing the impact that swfs have on national security); locknie hsu, swfs, recent us legislative changes, and treaty obligations, 43 j. world trade 451 (2009) (analyzing how treaty obligations and governance guidelines impact swfs’ fdi); gil lan, foreign direct investment in the united states and canada: fractured neoliberalism and the regulatory imperative, 47 vand. j. transnat’l l. 1261 (2014) (comparing american and canadian treatment of soes and swfs); gerard lyons, state capitalism: the rise of sovereign wealth funds, 14 l. & bus. rev. am. 179 (2007) (examining protectionist backlash against swfs). 13 alan rappeport, in new slap at china, u.s. expands power to block foreign investments, n.y. times (oct. 10, 2018), https://www. nytimes .com/2018/10/10/business/us-china-investment-cfius.html (“[f]rom the first half of 2017 to the first half of 2018” fdi from china “fell more than 90 percent . . . .”). no. 10:1] rice paddies on the white house lawn 119 ment in the u.s.,14 and is contrary to u.s. free-market values of anti-discrimination.15 part i of the note will focus on the history and purpose of cfius and foreign direct investment (fdi) in the u.s. while cfius was initially formed to curb harsher legislation that would have prevented foreigners from investing in the u.s. whatsoever, over 14 katy stech ferek, u.s. seeks to heighten scrutiny of foreign investment in tech, infrastructure, data, wall street journal (sept. 17, 2019, 5:48 pm), https://www.wsj.com/articles/u-s-seeks-toheighten-scrutiny-of-foreign-investment-in-technology-infrastructuredata-11568750471 (stating that new restrictions on foreign investment “could scare off foreign money that has been a lifeline to such companies as silicon valley startups and biotech enterprises.”); steve dickman, us crackdown on foreign biotech investment makes us poorer, not safer, forbes (may 24, 2019, 7:21 am), https://www. forbes.com/sites/stevedickman/2019/05/24/us-crackdown-on-foreignbiotech-investment-makes-us-poorer-not-safer/#5f96acdd5581 (explaining that the “updated version” of “cfius immediately triggered layoffs and reduced international fund flows into biotech companies.”). 15 robert h. mundheim & david w. heleniak, american attitudes toward foreign direct investment in the united states, 2 j. comp. corp. l. & sec. reg. 221, 222 (1979) (“development of the open [investment] policy is due in part to [the american] belief in the free market system, and in part to a careful and pragmatic assessment of our national self-interest.”); see also mina gerowin, note, u.s. regulation of foreign direct investment: current developments and the congressional response, 15 va. j. int’l l. 611, 633 (1975) (“the foundation of [the policy of unrestricted investments] is the maintenance of a strong belief in the free market as a means of achieving maximum efficiency in the allocation of scarce resources. as the strongest force in the market, the united states also stands to gain the most from it.”); but see does the free market protect against discrimination?, berkeley econ. rev. (apr. 20, 2018), https://econreview.berkeley.edu/does-the-free-market-protect-againstdiscrimination/ (“[w]e should recognize that while the free market may disincentivize discrimination, it is not a sufficient force to eliminate it.”). 120 columbia journal of race and law [vol. 10:1 time, cfius has become a powerful tool to limit foreign investment under the guise of national security concerns. part ii of the note will focus on the case law surrounding corporate personhood and the racial and national identity of businesses. additionally, part ii contains a case study illustrating the challenge of determining a business’ national identity in complex private equity investment structures. part iii of the note will recommend that cfius stop using the “foreign” control analysis as a gatekeeping function. instead, cfius should review all relevant transactions that impact national security and use the “foreign” control analysis during the formal review stage. this solution promotes legal clarity and adheres to american free-market and anti-discriminatory policies. ii. foreign direct investment in the united states and the creation of cfius cfius’ role in reviewing foreign investments is critical because the u.s. is the largest recipient in the world of fdi.16 americans benefit from the presence of foreign investment in the u.s. over 7 million americans work for “foreign-owned firms” in the u.s.17 and, in 2013, “foreign-owned companies” paid over 16% of the total revenue from u.s. federal corporate income tax.18 additionally, “foreign sources” filed for over 50% of recent utility 16 fdi in the usa, u.s. dep’t of commerce, https://www. selectusa.gov/why-fdi. the large volume of fdi in the u.s., combined with the potential that bad actors would target the u.s., put pressure on the u.s. government, and cfius specifically, to monitor foreign investment in the u.s. jackson, supra note 2, at 1–3; see infra note 22 and accompanying text. 17 benefits of foreign direct investment (fdi), u.s. dep’t of commerce, https://www.selectusa.gov/fdi-benefits (reporting the u.s. bureau of economic analysis’s calculation as of 2016). 18 id. (reporting the internal revenue service’s calculation as of 2013). no. 10:1] rice paddies on the white house lawn 121 patents.19 however, along with the benefits of fdi, there are concerns that foreign countries will use investment opportunities to conduct espionage on the u.s.20 these concerns have some merit. from 2018 to 2019, the u.s. department of justice brought several federal indictments against chinese nationals for economic espionage. 21 to counter foreign governments’ attempts to use fdi for nefarious purposes, the u.s. government relies on cfius to review filings made by companies conducting trans-actions in “national security” industries.22 initially, congress created the legislative precursor to cfius as a data gathering committee.23 president gerald ford formed the data gathering committee as a concession to members of 19 id. (reporting the u.s. patent office’s calculation as of 2016). a utility patent “protects the way an article is used and works,” whereas a design patent “protects the way an article looks.” the united states patent and trademark office, https://www.uspto.gov/ web/offices/pac/mpep/s1502.html. 20 jackson, supra note 2, at 21. 21 u.s. dep’t of justice, two chinese hackers associated with the ministry of state security charged with global computer intrusion campaigns targeting intellectual property and confidential business information (2018), https://www.justice.gov/opa/pr/two-chinese-hackers-associatedministry-state-security-charged-global-computer-intrusion; katie benner, chinese officer is extradited to u.s. to face charges of economic espionage, n.y. times (oct. 10, 2018), https://www.nytimes.com/ 2018/10/10/us/politics/china-spy-espionage-arrest.html; katie benner, chinese intelligence officers accused of stealing aerospace secrets, n.y. times (oct. 30, 2018), https://www.nytimes.com/2018/ 10/30/us/politics/justice-department-chinaespionage.html?module=inline; alan rappeport, justice department charges chinese company with espionage, n.y. times (nov. 1, 2018)https://www.nytimes.com/2018/11/01/us/politics/chinesecompany-espionage-charges.html [hereinafter china economic espionage]. 22 jackson, supra note 2, at 21. 23 gerowin, supra note 15, at 612. 122 columbia journal of race and law [vol. 10:1 congress who wanted to severely limit fdi in the u.s.24 however, over time, the data gathering committee transformed from “obscurity” to a powerful tool controlling which foreign investors can access u.s. markets and invest in national-securityrelated industries.25 part i reviews the importance of fdi in the u.s. and cfius’ transformation over time. each time congress has altered cfius’ role, it was responding to public outcry over foreign investors becoming more influential in american businesses. part i shows that public uproar has historically followed increased investment from asia or the middle east. presidents have alluded to the idea that this public outcry is at least partially driven by racial discrimination.26 each time congress has reviewed cfius, it has ratcheted up the organization’s influence and authority to review transactions with foreign control that impact national security.27 24 id. at 633. 25 jackson, supra note 2, at 1, 5–6. 26 president ronald reagan, president of the u.s., radio address to the nation on the canadian elections and free trade, supra note 1 (“the expansion of the international economy is not a foreign invasion . . . .”); david e. sanger, under pressure, dubai company drops port deal, n.y. times (mar. 10, 2006), https://www.nytimes.com/ 2006/03/10/politics/under-pressure-dubai-company-drops-portdeal.html (president george w. bush “issued a strong defense [of the dp world deal], suggesting that racial bias lay at the core of the objections . . . .”). additionally, commentators have pointed out that opposition to these transactions is driven by racism. gideon rose, racism is behind dp world port furore, fin. times (feb. 27, 2006), https://www.ft.com/content/72cf6ad8-a6f7-11da-b12c-0000779e2340 (arguing that racism drove the public’s outrage over the dp world and not xenophobia because other foreign companies had run the ports previously without any public outcry). 27 omnibus trade and competitiveness act of 1988, pub. l. no. 100– 418, § 5021, 102 stat. 1110 (1988) (giving “the president or the president’s designee” the power to “investigate” foreign investment activity); national defense authorization act for fiscal year 1993, pub. l. no. 102–484, 106 stat. 2315 (1992) (cfius is required to no. 10:1] rice paddies on the white house lawn 123 a. history of foreign direct investment in america fdi is defined as a “cross-border investment made by a resident in one economy” in a different economy.28 one of the first major upticks in fdi came after world war ii, when there was an “unparalleled explosion of economic growth throughout europe and the united states.”29 in 1973, there was an abrupt $2 billion surge in fdi in the u.s. (total accumulated fdi at the time was $16.5 billion)30 driven by investment from western europe, japan, and the newly created organization of petroleum exporting countries (opec).31 politicians began to question the investigate “any instance” in which a foreign investor attempted “a merger, acquisition, or takeover which could result in control of a person engaged in interstate commerce . . . that could affect the national security of the united states.”); exec. order no. 13456, 73 fed. reg. 4677 (jan. 25, 2008) (cfius has the ability to add committee members from “any other executive department, agency, or office, as the president or the secretary of the treasury determines appropriate . . . .”); alexandra yoon-hendricks, congress strengthens reviews of chinese and other foreign investments, n.y. times (aug. 1, 2018), https://www.nytimes.com/2018/08/01/business/foreign-investmentunited-states.html?module=inline (firrma expanded cfius’ jurisdiction to “joint ventures, minority stakes, and real estate transactions near military bases or other sensitive national security facilities.”). 28 organization for economic cooperation and development, oecd benchmark definition of foreign direct investment 17 (4th ed. 2008). 29 terry r. spencer & christian b. green, foreign direct investment in the u.s.: an analysis of its potential costs and benefits and a review of legislative tools available to shape its future course, 6 transnat'l l. 539, 541 (1993). 30 senator warren g. magnuson (wa-d), foreign investment study act of 1974, s. rep. no. 93-910, at 2 (1974) (conf. rep.). 31 mundheim & heleniak, supra note 15, at 222. 124 columbia journal of race and law [vol. 10:1 volume of fdi and its impact on the american workforce32 in the context of public concern regarding “an imminent arab takeover.”33 while there was a legitimate concern over how to manage a large influx of foreign capital, there were also “elements of discrimination and protectionism.”34 from 1973 to 1977, legislators introduced a variety of bills to oversee, control, and, to some extent, discourage fdi.35 for example, the dent-gaydos bill, which ultimately failed in congress, would have prevented foreigners from “acquiring more than five percent of voting securities of any publicly-held corporation.”36 other failed pieces of legislation proposed preventing foreigners from owning more than ten percent of voting shares of publicly traded corporations involved in energy or defense, and establishing a commission to prevent foreign ownership in companies important to the “economic security and national defense” of the country.37 in 1974, congress did successfully pass the foreign investment study act, which directed the secretaries of treasury and commerce to “conduct a comprehensive, overall study of foreign direct and portfolio investments” in the u.s.38 the ford 32 gerowin, supra note 15, at 641 (“[a]s unemployment and inflation spiral in the country [more restrictive investment policies] are now gaining even greater popularity in congress.”); spencer & green, supra note 29, at 542 (“by the mid-1970s, the laissez-faire policy toward fdi taken by the u.s. government came into serious question due to the short term adjustment costs associated with increased fdi, such as the closing of less efficient facilities.”). 33 gerowin, supra note 15, at 611. 34 mundheim & heleniak, supra note 15, at 222. 35 id. the 93rd congress was inaugurated on january 3, 1973 and served through january 3, 1975. the 94th congress was inaugurated on january 3, 1975 and served through january 3, 1977. 36 gerowin, supra note 15, at 612. 37 mundheim & heleniak, supra note 15, at 222. 38 foreign investment study act of 1974, pub. l. no. 93-479, 88 stat. 1450 (15 u.s.c. § 78b note). no. 10:1] rice paddies on the white house lawn 125 administration, which was pro-trade,39 used the foreign investment study act to forestall more “restrictive legislation” that would have significantly restricted fdi.40 in the report accompanying the bill, the committee on commerce stated that “[i]t is foreign direct investment which disturbs most individuals since this type of investment implies a degree of foreign control.”41 however, sidney weintraub, deputy assistant secretary for international finance and development, was concerned that the foreign investment study act could be “misinterpreted . . . as signaling a move toward a more restrictive u.s. government policy toward foreign investment.”42 weintraub added that foreigners could misunderstand congress’ posturing and that “such a misinterpretation could have an unfortunate negative impact on the attractiveness of the united states to foreign investors,” even if congress did not ultimately take a more “protectionist” stance towards foreign investment.43 upon signing the bill into law, president ford stated “[a]s i sign this act, i reaffirm that it is intended to gather information only. it is not in any sense a sign of a change in america’s traditional open door policy towards foreign investment.”44 despite the passage of the foreign investment study act, members of congress continued to propose legislation seeking to 39 robert a. pastor, congress and the politics of u.s. foreign economic policy 341 (u.c. press eds., 1980). president ford’s stated approach on fdi was “freer trade and enhanced global economic stability and prosperity.” id. (quoting international economic report of the president, 1976, p. iii). however, president ford was also concerned with unemployment, which could be considered to be a “competing goal[]” with increasing trade. see id. 40 gerowin, supra note 15, at 612. 41 s. rep. no. 93-910, at 2. 42 id. at 10 (weintraub’s testimony on march 7, 1974). 43 see id. 44 statement on signing the foreign investment study act of 1974, aug. 9 to dec. 31, 1974, pub. papers 479 (oct. 28, 1974). 126 columbia journal of race and law [vol. 10:1 monitor or limit fdi.45 in committee hearings, government agency leaders expressed concerns about “overreacting” to fdi and the new proposals’ real and perceived discrimination against foreign investors.46 in a statement to the senate, thomas enders, the assistant secretary for economic and business affairs, suggested that, because the securities and exchange commission (sec) already collected both foreign and domestic investment information, agencies could leverage the sec’s data set rather than collecting their own.47 using the sec as a data gathering channel would avoid placing “special reporting burdens on foreign investors only” and thus reduce the “appearance of discrimination against foreign investors.”48 concerned that congress would continue to propose legislation limiting fdi, the ford administration proposed a committee approval process that would “dissuade congress from enacting new restrictions.”49 45 mundheim & heleniak, supra note 15, at 222. 46 thomas o. enders, department gives views on bills relating to foreign investment in the united states, the department of state bulletin volume lxxii, no. 1876, 779, 782 (1975) (testifying before the senate subcommittee on foreign commerce and tourism of the senate committee on commerce). 47 id. at 781. the williams act of 1968 amended the securities exchange act of 1934 to require that any person or entity who obtains 5% or more of a publicly traded corporation’s equity must file a schedule 13d with the sec. percolating in the background of the foreign person disclosure is that the sec already required any person or entity, domestic or foreign, to publicly disclose this information to the sec. enders did not think there needed to be an additional reporting requirement that only burdened foreign investors. id. 48 id. 49 jackson, supra note 2, at 1 (quoting the operations of federal agencies in monitoring, reporting on, and analyzing foreign investments in the united states: hearing before the subcomm. on commerce, consumer, and monetary affairs of the h. comm. on government operations, 96th cong., 1st sess. 334–335 (1979). no. 10:1] rice paddies on the white house lawn 127 a. cfius creation and purpose in order to prevent congress from enacting severe restrictions on foreign investment, in 1975, president ford signed an executive order establishing cfius.50 the secretary of the treasury would serve as the chairman and the committee would include representatives from the state department, the treasury department, the defense department, and the commerce department, as well as the assistant to the president for economic affairs and the executive director of the council on international economic policy.51 the committee was charged with “monitoring” foreign investment in the united states, including analyzing large-scale market changes, proactively working with foreign governments making large investments in the u.s., “reviewing investments” with “major implications” for the u.s., and “consider[ing] proposals for new legislation or regulations relating to foreign investment.”52 over the next decade, cfius operated in “relative obscurity” until congress was motivated to codify the executive order due to an unexpected increase in fdi from japan.53 one particular transaction caught the attention of both the government and the general public. in 1987, fujitsu ltd. (a japanese company) attempted to buy fairchild semiconductor corporation (an american company), which specialized in computer chips.54 the defense secretary and commerce secretary unsuccessfully requested that the reagan administration block the acquisition for national security reasons.55 however, the new york times reported that, beyond the national security concerns, “some 50 foreign investment in the united states, exec. order no. 11858, 40 fed. reg. 20,263 (may 7, 1975); jackson, supra note 2, at 1. 51 foreign investment in the united states, supra note 50. 52 id. 53 jackson, supra note 2, at 4–5. 54 david e. sanger, japanese purchase of chip maker canceled after objections in u.s., n.y. times, mar. 17, 1987, at 1. 55 id. 128 columbia journal of race and law [vol. 10:1 federal officials” were concerned with “the mounting trade friction with japan . . . particularly in strategically important high technology.”56 despite the more laissez-faire approach of the reagan administration, congressional democrats were opposed to increased fdi.57 congress responded to increased japanese investment with legislation either monitoring or limiting fdi, in much the same way it responded to middle eastern investment in the 1970s.58 in a floor statement for legislation requiring foreigners to disclose their american investments,59 representative traficant (d-oh) stated: [the japanese] are buying up our banks and our securities . . . our soldiers won the war, but congress is letting japan win the peace. and all of these other europeans who keep our products and laugh in our face . . . the day will come when american’s cash crops will not be soybeans and wheat and corn; they will be rice, and we will have 56 id. 57 see spencer & green, supra note 29, at 543 (“the reagan administration, however, took a more aggressive approach by undertaking to promote rather than limit fdi.”). at this period in time, many liberal democrats were anti-trade and “argued that increases in fdi were nothing more than opportunistic efforts by foreign nationals to take advantage of the relatively weak u.s. economy . . . .” id. many liberal democrats believed that job losses during this time frame were directly connected to the surge in fdi. in his floor speech on hr 5410, representative traficant said “[w]e have lost 55,000 jobs in my district . . . in the last 10 years that averaged $12 per hour . . . . you know what we have gotten? about 7,000 jobs that pay an average of $3.50 to $5.50 . . . .” 134 cong. rec. 8, at 107 (1988). 58 mundheim & heleniak, supra note 15, at 222. 59 representative traficant speaking on hr 5410. hr 5410 was similar to the foreign investment study act in that it required a separate reporting requirement for foreign investors which was duplicative of the data the sec already gathered. no. 10:1] rice paddies on the white house lawn 129 a rice paddy on the east lawn of the white house. we ought to be ashamed of ourselves.60 as a result of growing concern over foreign investment, congress passed the omnibus trade and competitiveness act of 1988.61 the bill included the exon-florio amendment, which gave “the president or the president’s designee” the power to “investigate” foreign investment activity like the proposed fujitsu ltd. acquisition.62 the bill effectively codified president ford’s executive order establishing the cfius review process.63 when president reagan issued an executive order making cfius his delegate for overseeing the exon-florio provisions,64 cfius transformed from an “obscure” administrative committee with “limited authority” to an “important component of u.s. foreign investment policy with a broad mandate.”65 for several years, cfius had discretion over which transactions to investigate,66 but in 1993, congress amended exon-florio with the byrd amendment, which mandated that cfius investigate specific types of transactions.67 after the byrd amendment was signed into law, cfius was required to investigate “any instance” in which a foreign investor attempted “any merger, acquisition, or takeover which could result in control of a person engaged in 60 134 cong. rec. 828, at 501 (1988). 61 jackson, supra note 2, at 5-7. 62 p.l. 100-418, title v, section 5021, august 23, 1988; 50 u.s.c. § 2170 (now 50 u.s.c. § 4565 (2018); marc greidinger, exon-florio amendment: a solution in search of a problem, 6 am. u. int’l l. rev. 111, 115 (1991). 63 jackson, supra note 2, at 5–6. 64 id. at 6. 65 id. at 5–6. 66 foreign investment in the united states, exec. order no. 11858, 3 cfr 990 (1971-1975) (cfius “may conduct its own inquiry with respect to the potential national security risk posed by a transaction . . . .”). 67 jackson, supra note 2, at 8 (the byrd amendment was part of the “national defense authorization act for fiscal year 1993”). 130 columbia journal of race and law [vol. 10:1 interstate commerce . . . that could affect the national security of the united states.”68 the byrd amendment’s mandate was tested in 2006, when dp world (an soe from the united arab emirates) attempted to acquire peninsular & oriental steam navi-gation (p&o, a british company).69 p&o ran six american ports, including one in new york city.70 cfius reviewed and approved the transaction.71 shortly thereafter, senator chuck schumer (d-ny) called for additional scrutiny of the transaction and held a press conference with 9/11 victims’ families.72 while there was no debate about whether dp world was “foreign controlled” (it was clearly controlled by the united arab emirates), the potential transaction spurred a national debate on whether a company’s nationality in itself can pose a national security concern; “pro-tecting the homeland” became a “sort of super-national security” issue.73 despite the public outcry, president george w. bush strongly 68 p.l. 102-484, national defense authorization act for fiscal year 1993, october 23, 1992. 69 deborah m. mostaghel, dubai ports world under exon-florio: a threat to national security or a tempest in a seaport?, 70 alb. l. rev. 583, 606 (2007). part of the public’s concern was that most container ships entering the u.s. went “uninspected and [were] vulnerable to security gaps at many points.” sanger, under pressure, dubai company drops port deal, supra note 26. additionally, the uae was perceived as connected to the 9/11 terrorist attacks because several of the hijackers had travelled through the uae prior to coming to the u.s. heather timmons, dubai port company sells its u.s. holdings to a.i.g., n.y. times (dec. 12, 2006), https://www.nytimes. com/2006/12/12/business/worldbusiness/12ports.html. these facts combined led to a perception that the ports were vulnerable and would be increasingly vulnerable under uae management. sanger, under pressure, dubai company drops port deal, supra note 26. 70 timmons, supra note 69. 71 jackson, supra note 2, at 58–59. 72 peter overby, lobbyist’s last-minute bid set off ports controversy, npr (mar. 8, 2006), https://www.npr.org/templates/story/story.php ?storyid=5252263. 73 see mostaghel, supra note 69, at 610. no. 10:1] rice paddies on the white house lawn 131 defended the transaction and made statements “suggesting that racial bias lay at the core of the objections and warning that an undercurrent of isolationism would ultimately harm american efforts to enlist other nations in antiterrorism campaigns.”74 just before congress was set to block the acquisition, dp world announced it was no longer pursuing the transaction.75 following the national debate on the dp world transaction, congress sought to clarify the byrd amendment’s requirement that cfius investigate transactions in which a foreigner could gain control of an entity that could impact national security.76 ultimately, president bush signed the foreign investment and national security act of 2007 (finsa) into law.77 in addition to formally codifying cfius, finsa allows the president to delegate their authority to cfius after two considerations are met.78 first, the president must show that “other u.s. laws are inadequate or inappropriate to protect the national security.”79 second, the president must provide “‘credible evidence’ that the foreign interest exercising control might take action that threatens to impair the national security.”80 additionally, president bush issued an executive order granting cfius the opportunity to expand its membership by allowing “the heads of any other executive department, agency, or office, as the president or the secretary of the treasury determines appropriate” to join cfius.81 despite congress’ and president bush’s motivation to clarify “national security” after the dp world incident,82 neither 74 sanger, under pressure, dubai company drops port deal, supra note 26. 75 id. 76 weimer, supra note 6, at 663. 77 id. at 671–72. 78 jackson, supra note 2, at 9–10. 79 id. at 9. 80 id. 81 exec. order no. 13,456, 73 fed. reg. 4677 (jan. 25, 2008); weimer, supra note 6, at 672. 82 jackson, supra note 2, at 2. 132 columbia journal of race and law [vol. 10:1 finsa nor president bush’s executive order “attempt an explicit definition of the term ‘national security.’”83 nevertheless, finsa did clarify cfius’ review process as consisting of three formal stages.84 first, upon notification of a transaction,85 cfius determines whether the president can delegate his or her authority to cfius for reviewing the transaction (largely a review determining that “no other laws apply” and there is “credible evidence” of an issue impacting national security).86 this process is supposed to be completed in 30 days with discretion for additional time if needed.87 if the president meets the legal standard, then cfius proceeds to the second stage.88 in this stage, cfius has 45 days to review national security risks and determine whether there is a way to “negotiate, impose, or enforce an agreement or condition” to mitigate the national security issues.89 if the concerns can be 83 weimer, supra note 6, at 673. 84 jackson, supra note 2, at 10. scholars have pointed out that before cfius’ formal review process begins, there is a “triggering event” that makes cfius aware of the transaction. weimer, supra note 6, at 672– 73 (explaining that a “triggering event” could include a voluntary filing or a tip from “any cfius member agency . . . ”). additionally, cfius conducts “informal” reviews before official filings take place. jackson, supra note 2, at 11. these informal reviews give companies time to work with cfius and resolve national security issues before an official filing. id. another benefit to the informal review is that companies can prevent the “negative publicity” which would result from having the transaction rejected or “labeled as impairing u.s. national security interests.” id. in some instances, publicity around a cfius investigation has negatively impacted the relevant company’s stock price. id. at 11–12. 85 jackson, supra note 2, at 19, 53 (stating that cfius evaluates covered transactions that are either filed voluntarily by the companies engaging in the transaction or flagged by cfius itself for review). 86 jackson, supra note 2, at 9–10 fig.1, 11. 87 id. at fig.1, 11, 13. 88 id. at 41–42. 89 id. at 13. no. 10:1] rice paddies on the white house lawn 133 addressed, then cfius submits a positive determination to the president.90 if the concerns cannot be addressed, however, then cfius submits a negative determination to the president.91 in the third and final stage, the president has a 15 day period to review cfius’ recommendation and make a final determination on whether the transaction should move forward.92 the president is under no obligation to follow cfius’ recommendation.93 the president’s decision is “not subject to judicial review,” although the review process itself can be challenged.94 president barack obama blocked his first transaction based on cfius’ recommendation in 2012.95 in 2012, the ralls corporation (ralls) acquired four american limited liability companies in order to further its business of developing “wind farms in northcentral oregon.” 96 ralls was incorporated in delaware, its principal place of business was in georgia, and it was owned by two chinese nationals who were also senior executives of the sany group china, a chinese manufacturing company.97 ralls did not file the transaction voluntarily with cfius, and stated in district court that it only provided notice because cfius “informed 90 see id. at fig.1, 11. 91 id. 92 id. 93 id. at 13. 94 id. at 14; see ralls corp. v. committee on foreign investment in the united states, 758 f.3d 296, 325 (d.c. cir. 2014). 95 jackson, supra note 2, at 7. ultimately, president obama only blocked two transactions. id. the first described above, and the second blocked transaction was a chinese corporation that sought to acquire aixtron, “a german-based semiconductor firm with u.s. assets.” id. this note does not cover the second transaction because national identity was not a significant issue in that case. 96 ralls, 758 f.3d at 301. 97 id. at 301, 304; qingxiu bu, ralls implications for the national security review, 7 geo. mason j. int'l com. l. 115, 120 (2016). 134 columbia journal of race and law [vol. 10:1 [ralls] that the defense department intended to file a notice triggering cfius review if ralls did not file first.”98 the main issue surrounding ralls’ acquisitions was that the target companies had wind farm sites “located in and around the eastern region of a restricted airspace and bombing zone maintained by the united states navy . . . .”99 despite the fact that there were “hundreds” of other “foreign-made and foreign-owned” wind turbines near the “restricted airspace,”100 cfius recommended that president obama order ralls “to divest ralls’ ownership in the target project . . .”101 while the order president obama ultimately issued recognized “credible evidence”102 that ralls’ transactions posed a national security threat, neither president obama’s order nor cfius’ order “disclosed the nature of the national security threat [that] the transaction posed or the evidence on which cfius relied in issuing the orders.”103 when ralls challenged the decision, the d.c. circuit court found that finsa did not bar a “judicial review of the final determination of the president” to prevent a transaction from moving forward.104 however, the court determined that ralls’ complaint “did not challenge the president’s determination that the acquisition threatened the national security” and president obama’s order was upheld.105 interestingly, the d.c. circuit court mentioned that ralls’ owners were executives in sany,106 but squarely placed the motivation behind cfius’ review on the fact that “both of ralls’s 98 ralls, 758 f.3d at n.7. 99 id. at 304. 100 id. at 305. 101 bu, supra note 97, at 119. 102 regarding the acquisition of four u.s. wind farm project companies by ralls corporation, 77 fed. reg. 60281 (sep. 28, 2012). 103 ralls, 759 f.3d at 305. 104 jackson, supra note 2, at 60. 105 id. 106 ralls, 759 f.3d at 304. no. 10:1] rice paddies on the white house lawn 135 owners are chinese nationals.”107 in court, ralls pointed out that there were “other foreign-owned wind turbines near the restricted airspace” that, presumably, were allowed to continue to operate near the u.s. navy site in question.108 despite the fact that ralls was incorporated in delaware and operated out of georgia,109 cfius reviewed the transaction as though ralls was a chinese corporation. in effect, the corporation had taken on the national identity of its owners and become foreign for the purposes of cfius’ review. b. the trump administration and cfius cfius underwent another major transformation during the trump administration as a result of an anti-foreign, antiglobalist agenda.110 from 2015 to 2016, fdi from china to the u.s. tripled to $46b.111 shortly after, in 2016, the american people elec 107 id. at 301. 108 id. at 305. 109 id. at 304. 110 noah bierman, trump, the anti-globalist, declares america ‘open for business’ in davos speech to globalists, l.a. times (jan. 26, 2018, 2:12 am), https://www.latimes.com/politics/la-fg-trump-davos-speech -20180126-story.html. president trump has described his perspective on global trade as “america first.” id. president trump claims that his administration “will no longer turn a blind eye to unfair economic practices, including massive intellectual property theft, industrial subsidies, and pervasive state-led economic planning . . .” id. while giving a speech at the united nations, president trump stated “[w]e reject globalism . . .” w.j. hennigan, ‘we reject globalism.’ president trump took ‘america first’ to the united nations, time (sept. 25, 2018), https://time.com/5406130/we-reject-globalism-president-trumptook-america-first-to-the-united-nations/. 111 ana swanson, targeting china’s purchases, congress proposes tougher reviews of foreign investments, n.y. times (nov. 8, 2017), https://www.nytimes.com/2017/11/08/us/politics/china-foreigninvestments.html?module=inline; thilo hanemann, arrested development: chinese fdi in the us in 1h 2018, rhodium group fig.1 (jun. 136 columbia journal of race and law [vol. 10:1 ted president donald trump, who campaigned by stating that china was “raping our country” and perpetrating “one of the greatest thefts in the history of the world.”112 dramatic rhetoric aside, there was a growing concern in congress that american companies were becoming increasingly vulnerable to chinese cyberattacks.113 for example, senator john cornyn (r-tx) warned that legislation was needed to “put an end to the backdoor transfer of dual-use technology that has gone unchecked for too long” letting “bad actors, like china, erode our national security advantage by circumventing our laws.”114 in response, on august 1, 2018, congress passed the foreign investment risk review modernization act (firrma), which president trump signed into law.115 firrma expanded cfius’ jurisdiction to “joint ventures, minority stakes, and real estate transactions near military bases or other sensitive national security facilities.”116 in addition, the definition of “critical technologies” was broadened to encompass “new innovations” or “cutting-edge technology,”117 potentially expanding cfius’ role from merely policing transactions with national security implications to more proactively protecting the u.s.’s technological position in the world. legal practitioners have argued that firrma directly targets the preferred fdi strategy of chinese investors – “real estate acquisitions in sensitive areas,” “minority investments” through “private equity-type structures” (“joint ventures” in which 19, 2018), https://rhg.com/research/arrested-development-chinese -fdiin-the-us-in-1h-2018/. 112 frances coppola, we really don’t want a trade war with china, mr. trump, forbes mar. 22, 2018, https://www.forbes.com/sites/ francescoppolaa-trade-war-with-china-mr-trump/#303a55117fec. 113 yoon-hendricks, supra note 27. for examples of economic espionage, see china economic espionage, supra note 22. 114 yoon-hendricks, supra note 27. 115 foreign investment risk review modernization act, § 1703; yoonhendricks, supra note 27. 116 yoon-hendricks, supra note 27. 117 id. no. 10:1] rice paddies on the white house lawn 137 u.s. technology is transferred to the chinese partner), and transactions that are structured to “circumvent cfius.”118 even though the trump administration has argued that firrma is meant to “safeguard” american technology,119 practitioners have stated that it is not a coincidence that the areas firrma targets “pertain to particular chinese investment trends.”120 on august 23, 2018, president trump hosted a roundtable event at the white house to celebrate the signing of firrma.121 during the event, president trump stated, “if we see something we don’t like – some country is buying something that we don’t want them to be buying – we stop it. we now have the right to stop it. they won’t be stealing our companies anymore, especially companies that are quite complex.”122 presumably, the “we” to which president trump refers to in “we stop it” is cfius.123 additionally, president trump stated, “[w]e’re putting a lot of safeguards in, and we’re doing a lot of things against foreign acquisition of property . . . .”124 president trump’s remarks highlight the shift that has taken place in cfius’ purpose since it was created. originally, president ford created cfius through an executive order to slow down the severe limitations on fdi that 118 farhad jalinous et al., cfius reform becomes law: what firrma means for industry, white & case, (aug. 13, 2018), https://www. whitecase.com/publications/alert/cfius-reform-becomes-law-whatfirrma-means-industry. 119 president donald j. trump, president of the u.s., remarks by president trump at a roundtable on the foreign investment risk review modernization act (firrma) (aug. 23, 2018), https://www. whitehouse.gov/briefings-statements/remarks-president-trumproundtable-foreign-investment-risk-review-modernization-act-firrma/. 120 jalinous et al., supra note 118. 121 remarks by president trump at a roundtable on the foreign investment risk review modernization act (firrma) (aug. 23, 2018), supra note 119. 122 id. 123 id. 124 id. 138 columbia journal of race and law [vol. 10:1 congress was proposing at the time.125 cfius has since transitioned from a data gathering organization to a body that has significant oversight power over transactions that the administration considers related to “national security.”126 today, the united states receives more money in the form of fdi than any other nation in the world.127 however, the trump administration’s posturing and trade measures128 have already substantially reduced fdi from china – from january 2017 to june 2018, fdi fell over 90%,129 the lowest level of fdi from china in seven years.130 while recent changes to cfius are not solely responsible for the fdi reduction, the changes reflect broader foreign and economic policy goals that are largely responsible for the decrease in fdi. iii. where are you really from? outdated requirements and distracting regulatory burdens although cfius is used to promote policies that dis-criminate based on both race and national origin, there is a legitimate concern that foreign investors may use fdi to conduct espionage 125 jackson, supra note 2, at 1. 126 id. at 1–2. 127 benefits of foreign direct investment (fdi), supra note 18; jonathan masters & james mcbride, foreign investment and u.s. national security, council on foreign relations (aug. 28, 2018), https://www.cfr.org/backgrounder/foreign-investment-and-usnational-security. 128 rappeport, in new slap at china, u.s. expands power to block foreign investments, supra note 13. earlier trade measures include tariffs on “$250 billion worth of chinese goods as a form of punishment” and the trump administration’s threats to “tax all chinese imports if beijing does not change its trade practices.” id. 129 hanemann, supra note 111, at fig.1. 130 rappeport, in new slap at china, u.s. expands power to block foreign investments, supra note 13. no. 10:1] rice paddies on the white house lawn 139 in the u.s.131 in order to prevent economic espionage, it is useful for the government to determine a company’s national origin, as some countries have a targeted economic espionage agenda.132 the determination matters—cfius does not review transactions that are considered non-foreign.133 nevertheless, determining a company’s national identity is not as straightforward an analysis as it may seem (as illustrated by this note’s case study).134 131 see china economic espionage, supra note 21. 132 marc santora, huawei threatens lawsuit against czech republic after security warning, n.y. times (feb. 8, 2019), https://www. nytimes.com/2019/02/08/business/huawei-lawsuit-czech-republic.html (describing china’s national intelligence law in 2017 which “requires chinese companies to support, provide assistance to and cooperate in beijing’s national intelligence work, wherever they operate.”). 133 transactions that are covered transactions, 31 c.f.r. § 800.301 (2018) (“[c]overed transactions” is defined in the statute as transactions which would “result in control of a u.s. business by a foreign person.”); foreign person, 31 c.f.r. § 800.216 (2018) (defining “control” and “foreign person”). 134 shoesmith et al., supra note 8, at 2; see infra section iii.d. (case study: from all-american to foreign). 140 columbia journal of race and law [vol. 10:1 for individuals, racial and national identity is a construct,135 but nationality is established by citizenship.136 while corporations have a place of incorporation (similar to an individual’s citizenship),137 cfius looks beyond this and investigates who controls a company to determine if it is “foreign.”138 in effect, cfius examines the national identity of the corporation. while the common law treats the corporation as a construct (or a legal fiction),139courts 135 see richard r.w. brooks, incorporating race, 106 colum. l. rev. 2023, 2066 (2006). racial and gender categories are socially constructed by governments and by individuals. kimberlé williams crenshaw, mapping the margins: intersectionality, identity politics, and violence against women of color, 43 stan. l. rev. 1241, 1296– 97 (1991). over time, these categories grow to have “particular values attached to them” and “those values foster and create social hierarchies.” id. at 1297. the creation of the categories themselves may be an “exercise of power” as well as using the categories to apply “social and material consequences.” id. for the purposes of this note, national identity is defined as a category with which an individual might choose to identify. nationality is defined as a formal govern-ment recognition. for example, someone may choose to identify as chineseamerican (their national identity) even though the government formally recognizes them as american (their nationality). 136 u.s. citizenship laws and policy, u.s. dep’t of state, https:// travel.state.gov/content/travel/en/legal/travel-legal-considerations/uscitizenship.html (last visited oct. 19, 2019) (the statute defines u.s. citizenship as “acquired either at birth or through naturalization subsequent to birth.”). 137 tyler barnett & jennifer gardner, the incorporation process – key legal documents, dla piper, https://www.dlapiperaccelerate.com/ knowledge/2017/the-incorporation-process-key-legal-documents.html. 138 see § 800.216, supra note 133 (defining “foreign person”). 139 in roman law, there was one rule that has been interpreted as pertaining to the rights of structured organizations: “the slave of a corporation may be compelled, by torture, to give information against the members of that corporation . . . .” rudolph sohm, the institutes of roman law 104 (oxford, 1892). given the context of other rules involving torture of the enslaved owned by private persons, this corporate rule is interpreted to mean that “[r]ights and liabilities of no. 10:1] rice paddies on the white house lawn 141 have occasionally found that corporations can take on the racial or national identity of their founders or owners.140 for example, in ralls, the court stated that the delaware incorporated company was “foreign” because of its two chinese-national owners.141 in other words, when ralls’ owners incorporated ralls, the corporation acquired their identity and became chinese.142 determining an entity’s national identity is critical for cfius review—a company that is deemed american does not have to go through cfius’ review process. nevertheless, determining the national identity of an entity is fraught with problems. the central problem with relying on a national identity standard to conduct a cfius review is that it is simultaneously over-inclusive and underinclusive. cfius may be missing investments that are actually controlled by a foreign person where invest-ments are made through an entity that does not trip the foreign person requirement. similarly, cfius may spend valuable resources reviewing an investment that does not involve foreign control. in essence, there is a danger of missing an investment that is a threat to national security while being distracted by questions surrounding national identity. additionally, there is a concern that overpolicing on the basis of national identity results in race-based discrimination.143 a corporation do not mean joint rights and joint liabilities of the members, but sole rights and sole liabilities of another person, an invisible, a ‘juristic’ person . . .” id. the supreme court, in recent opinions involving corporations, reiterated that corporate “personhood is but a fiction and that the entity is but a device to further the ends of human beings associated in an enterprise . . .” gregory a. mark, hobby lobby and the corporate personhood: taking the u.s. supreme court’s reasoning at face value, 65 depaul l. rev. 535, 536 (2016). 140 see ralls corp. v. comm. on foreign inv. in the united states, 758 f.3d 296, 304 (d.c. cir. 2014); see brooks, supra note 135. 141 ralls, 759 f.3d at 304. 142 see id. 143 see brooks, supra note 135, at 2027. 142 columbia journal of race and law [vol. 10:1 a. challenges in determining corporate identity while corporations have legal personhood, courts have often been puzzled by whether corporations can take on the truly human characteristics – religion, race, or nationality – of their owners.144 during wartime, courts have commented on whether corporations can acquire the nationality of their shareholders under the trading with the enemy act (twea).145 outside of wartime, courts have not frequently opined on whether a corporation acquires the nationality of its shareholders, but questions on corp-orate racial identity offer a proxy for how courts might consider the question of corporate national identity in peacetime.146 in 1908, a virginia corporation wholly owned by african americans was initially prevented from purchasing land for a public park because a covenant prevented the transfer of land to “colored persons.”147 in 1900, a 125-acre tract of land had been purchased from the prior owner’s estate.148 the land had passed through several hands149 before people’s pleasure park company, incorporated purchase it.150 however, the party that sold the land to people’s pleasure park was unaware of a covenant stipulating that 144 see id. 145 trading with the enemy act, 50 u.s.c. §§ 4301–4341 (1917); clark v. uebersee finanz-korporation, a.g., 332 u.s. 480, 488 (1947); hamburg-american line terminal & navigation co. v. u.s., 277 u.s. 138, 138 (1928). president wilson signed twea in 1917 during world war i. daniel a. gross, the u.s. confiscated half a billion dollars in private property during wwi, smithsonian, https://www.smith sonianmag.com/history/us-confiscated-half-billion-dollars-privateproperty-during-wwi-180952144/. the purpose of the act was to allow the u.s. to seize the property of people suspected of aiding the enemy. id. 146 see brooks, supra note 135, at 2081. 147 id. at 2024. 148 people’s pleasure park co. v. rohleder, 61 s.e. 794, 794 (va. 1908). 149 id. 150 id. at 795. no. 10:1] rice paddies on the white house lawn 143 title to the land was “never to vest in a colored person or persons.”151 the owners of the neighboring land sued to invalidate the sale based on a violation of the covenant.152 the supreme court of appeals of virginia held in people’s pleasure park that corporations are legal entities “distinct from the persons composing it.”153 the court ruled that the corporation was “a person only in law”154 and that, “in law, there can be no such thing as a colored corporation.”155 judge cardwell stated that, as a corporation, people’s pleasure park “leads its own life, as it were, quite unaffected by any change of members. it stands apart as a separate subject or proprietary capacity, and in contemplation of law, as a stranger to its own members.”156 thus, the court declined to extend the shareholders’ race to the corporation it-self.157 the supreme court applied this logic to corporations wholly owned by germans during world war i.158 in hamburg-american line terminal & navigation co. v. u.s., the hamburg-american line terminal & navigation company and the atlas line steamship company were both incorporated in new jersey, but wholly owned by the hamburg-american line, a german corporation.159 the u.s. government seized the new jersey corporations’ property under the twea, claiming that the new jersey corporations qualified as enemies because they were wholly owned by a german corporation.160 the court, however, held that the new jersey corporations’ “status . . . was not fixed by the stock-holders’ 151 id. at 794. 152 id. 153 id. at 797. 154 brooks, supra note 135, at 2024. 155 id. 156 people’s pleasure park co., 61 s.e. at 796 (quoting sohm, supra note 140, at 105). 157 id. at 797. 158 hamburg-am. line terminal & navigation co. v. u.s., 227 u.s. 138, 138 (1928). 159 id. at 139–40. 160 id. at 140. 144 columbia journal of race and law [vol. 10:1 nationality.”161 rather, the court ruled that a u.s. corporation was entitled to have its corporate status shield its shareholders, regardless of their nationality.162 this logic, applied to a cfius analysis today, would mean that entities incorporated in the u.s. could only be considered american, leaving room for bad actors to circumvent a cfius review. however, during world war ii, congress amended twea to prevent u.s. corporations from being used as a “trojan horse” for foreign enemies.163 in clark v. uebersee finanzkorporation, after the u.s. government had seized stock owned by a swiss corporation,164 the court held that the congressional amendment was intended to “illustrat[e]” that the law could apply to “all property of any foreign country or national so that no innocent appearing device could become a trojan horse.”165 in the view of the court, congress had passed the bill “hast[ily],” and for the court to not look beyond the place of incorporation would be counter to congress’ intent.166 in language that is echoed in contemporary statements about chinese investment in the u.s.,167 the court asserted that germany was “notorious” for developing “numerous techniques for concealing enemy ownership or control of property 161 id. at 141. 162 id. 163 clark v. uebersee finanz-korporation, a.g., 332 u.s. 480, 488 (1947). 164 id. at 482. the corporation was incorporated in switzerland and its principal place of business in switzerland. id. the stock seized was stock in u.s. corporations. id. 165 id. at 488. 166 see id. congress amended twea in 1941, after the u.s. declared war against japan, in order to clarify that twea was fully “applicable during wartime” and applied to “all foreign countries (not merely enemy ones) . . . .” benjamin a. coates, the secret life of statutes: a century of the trading with the enemy act, 1 mod. am. hist. 151, 163 (2018). additionally, the amendment extended twea to apply during peacetime. id. 167 coppola, supra note 112. no. 10:1] rice paddies on the white house lawn 145 which was ostensibly friendly or neutral . . . for the purposes of economic warfare.”168 the effect of clark is that entities incorporated in the u.s. can take on the nationality of their shareholders.169 however, the clark court expressed the concern that a corporation with numerous shareholders of different nationalities could not easily be classified as foreign or american.170 for example, the court stated that it would be “absurd and uncertain” to classify a corporation as foreign “merely because a negligible stock interest, perhaps a single share, was directly or indirectly owned or controlled by an enemy or ally of an enemy.”171 the court’s approach addressed the “trojan horse” issue of bad actors circumventing cfius review.172 nevertheless, the court struggled with the same issues with which cfius struggles today, namely how to determine what qualifies as “foreign” and what qualifies as “control.”173 additionally, over time, courts have found that some corporations can take on the attributes of their shareholders, specifically race, “as a matter of law” for 42 u.s.c. § 1981 (1999) claims.174 in thinket ink information resources, inc. v. sun microsystems, inc., thinket, an information technology contractor 168 clark, 332 u.s. at 484–85. 169 id. 170 id. at 489. 171 id. 172 id. at 488. 173 shoesmith et al., supra note 8, at 2. 174 thinket ink info. res., inc. v. sun microsystems, inc., 368 f.3d 1053, 1058 (9th cir. 2004); brooks, supra note 135, at 2025. there is a distinction between corporate liability concepts and the corporation taking on characteristics of its owners. brooks, supra note 135, at 2057. with enterprise liability and piercing the corporate veil, a corporation closely affiliated with a particular person or run closely in conjunction with other entities, can be held liable for the corporation’s debts and liabilities. id. however, with corporate race or national identity, a corporation takes on the racial or national identity of the shareholders. id. 146 columbia journal of race and law [vol. 10:1 wholly owned by african-americans, sued sun microsystems for racial discrimination under § 1981.175 thinket was registered with the u.s. small business administration (sba) as a company “owned and operated by socially and economically disadvantaged individuals” and was eligible for certain federal contracts under the sba’s “business development program.”176 the court held that a corporation could gain standing for racial discrimination when the corporation had “acquired an imputed racial identity sufficient to take it out of the general observation about corporations made by justice powell in arlington heights.”177 the court heavily weighed the fact that thinket was “required to be certified as a corporation with a racial identity” in order to access sba benefits.178 since the racial identity relevant to the sba certification was the same racial identity upon which thinket alleged discrimination,179 the court concluded that thinket had standing and that a “departure from arlington heights” was warranted.180 the ninth circuit extended “imputed racial identity” to circumstances without sba or government certification of a racial identity.181 in bains llc v. arco products co., a sikh owned 175 thinket, 368 f.3d at 1056. 176 id. at 1055. 177 id. at 1059. in arlington heights, justice powell, writing for the majority, stated that “as a corporation [the plaintiff] has no racial identity and cannot be the direct target of the petitioners’ alleged discrimination.” village of arlington heights v. metropolitan housing development corp., 429 u.s. 252, 263 (1977). in arlington heights, the corporate plaintiff alleged racial discrimination against racial minorities that would live in the integrated housing. id. at 252. however, the corporate plaintiff did not allege that it had a racial identity itself nor did the corporation allege that it was being discriminated against because of its corporate racial identity. thinket, 368 f.3d at 1059. 178 thinket, 368 f.3d at 1059; brooks, supra note 135, at 2077. 179 thinket, 368 f.3d at 1059. 180 id. 181 bains llc v. arco products co., 405 f.3d 764, 770 (9th cir. 2005). no. 10:1] rice paddies on the white house lawn 147 corporation, flying b, sued a contractor for racial discrimination.182 the court noted that the corporation’s owners were all sikh, and that even non-sikh employees alleged discrimination against by the contractor because of their employment status with the company.183 the court then concluded that “flying b undoubtedly acquired an imputed racial identity,” that its contract “was terminated due to the effects of racial discrimination,” and that flying b thus had standing for a § 1981 claim.184 despite court challenges to cfius decisions,185 courts have not weighed in on how to determine corporate national identity when there is no controlling shareholder. similar to courts that have considered corporate racial identity, courts considering corporate national identity would likely have difficulty when the corporation has a complex investment structure.186 b. the foreign person requirement due to cfius’ lack of a robust definition of “foreign control,” determining a corporation’s national identity is a convoluted process.187 the exon-florio amendment outlines cfius’ role: cfius “shall review the covered transaction to determine the effects of the transaction on the national security of the united states.”188 the statute also states that investors must disclose a transaction to cfius when it “involves an investment that results in the acquisition, directly or indirectly, of a substantial interest in a united states business . . . by a foreign person in which a foreign 182 id. at 769. 183 id. at 770. 184 42 u.s.c. § 1981 (1999); bains, 405 f.3d at 770. 185 see ralls corp. v. committee on foreign investment in the united states, 758 f.3d 296 (d.c. cir. 2014). 186 see brooks, supra note 135, at 2063. 187 foreign person, 31 c.f.r. § 800.216 (2018) (defining “foreign person”). 188 50 u.s.c. § 4565(b)(1)(a) (2018). 148 columbia journal of race and law [vol. 10:1 government has, directly or indirectly, a substantial interest.”189 however, the statute does not define “foreign person” and does not state whether legal persons (corporations) are included.190 in 1991, the treasury department published its regulations to implement the exon-florio amendment.191 the regulations were updated again in november 2008.192 today, the federal code describes a “foreign person” as “[a]ny foreign national, foreign government, or foreign entity” or “[a]ny entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.”193 nevertheless, firrma provides a vague definition of control and states that the definition is “subject to regulations prescribed by the committee.”194 additionally, firrma states that cfius will “prescribe regulations that further define the term ‘foreign person,’” and that the committee will consider “how a foreign person is connected to a foreign country or foreign government, and whether the connection may affect the national security of the united states.”195 practicing attorneys who work with companies going through the cfius review process have contended that cfius’s choice to define “foreign person” broadly or narrowly will be “among the most important aspects of the regulations implementing this new legislation.”196 despite lacking clarity on the definition of “foreign person,” firrma did clarify which types of private equity investments, a 189 § 4565(b)(1)(c)(v)(iv)(bb)(aa). 190 see generally § 4565. 191 jackson, supra note 2, at 7. 192 id. 193 foreign person, 31 c.f.r. § 800.216 (2018) (defining “foreign person”). 194 foreign investment risk review modernization act, § 1703(a)(3) (defining “control”). 195 id. at § 1703(a)(4)(e). 196 jalinous et al., supra note 118. no. 10:1] rice paddies on the white house lawn 149 common investment vehicle for fdi, would be subject to cfius review.197 c. impact on private equity private equity (pe) is a common investment vehicle for fdi and pe firms use a variety of investment structures.198 one of the most common structures used by pe firms is the leveraged buyout (lbo), a structure in which a pe fund secures debt financing, buys a publicly traded corporation, and takes the corporation private in order to make changes to the corporation (presumably to make it more profitable).199 venture capital (vc) firms are similar to pe firms in that both types of firms work with private companies, however, vc firms work with “less mature non-public companies” in order to help grow the business.200 pe investors include institutions or wealthy individuals who provide financing to pe funds for investment by becoming “limited partners” in a fund.201 pe investments are made for the long-term; investors typically “sign investment contracts that lock up their money for as long as 10 to 12 years.”202 pe assets under management tripled from $399 billion in 2003 to $1.2 trillion in 2010, representing a 23% compound annual growth rate.203 in 2017, pe funds raised more money than ever before: $621 billion.204 this continued level of high interest in pe as an investment vehicle means that at least some companies will 197 id. 198 david stowell, an introduction to investment banks, hedge funds, and private equity 283 (elsevier inc., 2010). 199 id. 200 id. 201 id. at 286. 202 id. 203 id. at 284 fig.16.1. 204 antoine drean, 10 predictions for private equity in 2018, forbes (jan. 24, 2018, 12:24 pm), https://www.forbes.com/sites/antoinedrean/ 2018/01/24/ten-predictions-for-private-equity-in-2018/#5ffb05f4319e. 150 columbia journal of race and law [vol. 10:1 change owners as a result of pe investment strategies. as pe funds buy companies in order to take them private, the companies’ identities may change and may have implications for a cfius review. publicly traded securities, such as stock, are required to be registered with the sec, but private securities, such as invest-ments in private equity funds, are not.205 pe funds are exempt from the sec registration requirement because pe funds only allow institutional investors or wealthy individuals to invest in their funds.206 one major implication of not registering with the sec is that there is very little transparency required on behalf of pe funds.207 for a company seeking pe investment, this lack of transparency would make it difficult, if not impossible, to determine whether cfius would consider the pe fund “foreign.” the case study below illustrates the implications of a start-up receiving investment from a pe fund and the start-up not being aware of how the pe funds’ “foreign” status impacts the start-up’s status for cfius review. 205 see rules governing the limited offer & sale of securities without registration under the securities act of 1933, 17 c.f.r. § 230.506 (2018) (known as regulation d); rebecca l. hinyard, note, striking the right balance: extending cfius review to private equity transactions, 37 pub. cont. l.j. 843, 858 (2008). 206 updated investor bulletin: accredited investors, sec (jan. 31, 2019), https://www.investor.gov/additional-resources/news-alerts/aler ts-bulletins/updated-investor-bulletin-accredited-investors (accredited investor is defined as a natural person with “a net worth of over $1 million” or an entity with over $5 million in total assets.). private funds “do not have to make prescribed disclosures to accredited investors” because accredited investors “are financially sophisticated and able to fend for themselves or sustain the risk of loss, thus rendering unnecessary the protections that come from a registered offering.” id. 207 hinyard, supra note 205, at 859–60. no. 10:1] rice paddies on the white house lawn 151 d. case study: from all-american to foreign start-up companies seeking investment may become “inadvertent[ly] foreign” by accepting investment from a “foreign” pe fund.208 start-up companies seek investors in a variety of forms, but investment from a reputable vc is especially coveted because vc’s provide funding, business guidance, and a signal to the larger business community that the start-up is taken seriously.209 however, a significant consequence of receiving vc funding is a lack of transparency—it is possible that the start-up company’s owners will not know all of the limited partners of the fund and their respective nationalities.210 take, for example, a newly formed start-up company, better turbine, inc. (bti), has improved the standard wind turbine design, achieved limited production, and a small number of sales. now, the company is looking for financing to increase its production and to buy property on which to test the wind turbines.211 the company, better turbine, inc. (bti), is both incorporated and headquartered in california. additionally, the two founders (founders) and owners of the company are u.s. citizens who live in california. founders seek investment from vc funds located in silicon valley. founders are successful—they receive series a financing212 from 208 shoesmith et al., supra note 8, at 3. 209 mike sullivan & richard d. harroch, a guide to venture capital financing for startups, forbes (mar. 29, 2018), https://www. forbes.com/sites/allbusiness/2018/03/29/a-guide-to-venture-capitalfinancings-for-startups/#55917cfe51c9. 210 hinyard, supra note 205, at 859–60. 211 this case study is based on wind turbine business in ralls. ralls corp. v. committee on foreign investment in the united states, 758 f.3d 296, 301 (d.c. cir. 2014). additionally, the case study is based on a practitioner’s analysis of challenges surrounding inadvertent foreign person status. shoesmith, et. al., supra note 8, at 2. 212 many start-up companies seek investors through several rounds of financing as the company develops. these rounds of financing are typically called “series a,” “series b,” and “series c.” while there is 152 columbia journal of race and law [vol. 10:1 vc fund a, which takes a 9% stake in bti. however, vc fund a has several limited partners who are non-u.s. citizens and considered “foreign” by cfius.213 founders are aware of the “foreign” status of limited partners at vc fund a, but bti is not engaged in any kind of “national security” activity warranting cfius review.214 additionally, an invest-ment worth “less than a 10% voting interest” is “not considered a substantial interest” and, therefore, would not trigger the mandatory filing with cfius.215 founders begin production of their new wind turbine design and sales are successful. they decide to purchase more land and to expand their sales reach across the u.s. however, they need more financing to accomplish these goals and, as such, they start the process of series b financing.216 bti successfully no fixed timeline for when series a financing takes place in the lifecycle of a company, series a financing is typically done when a startup has developed a business model and has some kind of “key performance indicator” such as revenue or a customer list. in the case study above, bti has “key performance indicators” with its limited production and sales. series a financing usually raises between $2 million and $15 million depending on the industry and types of investors. nathan reiff, series a, b, c funding: how it works, investopedia, feb. 8, 2019, https://www.investopedia.com/articles/ personalfinance/102015/series-b-c-funding-what-it-all-means-andhow-it-works.asp. 213 foreign person, 31 c.f.r. § 800.216 (2018) (defining “foreign person”). 214 jackson, supra note 2, at 1. 215 50 u.s.c. § 4565(b)(1)(c)(v)(iv)(bb)(bb) (2018) (defining substantial interest). 216 like series a financing, series b financing is not done at a fixed point in time during a start-up’s development. reiff, supra note 213. typically, series b financing takes place when a company wants to move “to the next level” and has solid “performance indicators” including increasing revenue and a “substantial user base.” id. in the case study above, bti has a proven track record of sales and is looking no. 10:1] rice paddies on the white house lawn 153 secures additional funding from vc fund b, which also takes a 9% stake in bti. similarly to vc fund a, vc fund b has several limited partners who are non-u.s. citizens. founders are not concerned because bti is still not engaged in cfius regulated activity.217 founders search for the perfect spot on which to test their new wind turbines and identify a parcel of land in washington state. the land is currently occupied by other wind turbine companies and bti determines that, rather than compete with the other companies, it should buy the other companies out.218 during its due diligence, bti realizes that the land is near “restricted airspace and bombing zone maintained by the united states navy. ”219 bti moves forward with the purchase. unbeknownst to founders, bti should have filed the transaction with cfius for review. while vc fund a and vc fund b each only purchased 9% of bti, and thus did not trigger the mandatory filing with cfius,220 the combined total of investment between the two vc funds is 18%, which does qualify as “substantial interest”221 if there is “foreign” control.222 even though founders realized there were non-u.s. citizens involved in the vc funds, the vc funds did not directly disclose the number of “foreign”223 limited partners and their level of involvement in the vc fund.224 as to expand geographically. id. series b financing usually raises between $7 million and $10 million. id. 217 jackson, supra note 2, at 1. 218 see ralls corp. v. committee on foreign inv. in the u.s., 758 f.3d 296, 304 (d.c. cir. 2014). 219 id. at 304–305. 220 § 4565(b)(1)(c)(v)(iv)(bb)(bb) (defining substantial interest as not “less than a 10 percent voting interest”). 221 id. 222 foreign person, 31 c.f.r. § 800.216 (2018) (defining “foreign person”).) 223 id. 224 firrma states that indirect investment in a u.s. business (such as through a pe fund) will not constitute a covered transaction, even if a 154 columbia journal of race and law [vol. 10:1 such, bti received financing from the vc funds without realizing that the vc funds were themselves “foreign persons” by cfius review standards.225 since the vc funds are “foreign persons” and the vc funds’ total control in the start-up is over 10%, it is possible that the start-up company, though located in the u.s. and founded by u.s. citizens, is a “foreign person for the purposes of cfius.”226 since bti is making an investment in a “cfiuscovered” transaction, the company is required to file the transaction with cfius for approval.227 this phenomenon, which practitioners call “inadvertent foreign person status,” presents significant issues.228 first, there are organizations that may not realize they have sufficient levels of foreign investment requiring a cfius filing. second, even those organizations that realize they must file with cfius are forced to incur expensive filing costs as well as lawyers’ fees to properly file with cfius.229 third, the volume of complex transactions (similar to the aforementioned case study) are so prevalent230 that the “foreign” requirement for cfius filing may foreign person is an lp. new cfius legislation enacted, davis polk & wardwell llp 2–3 (2018), https://www.davispolk.com/ files/2018-08-13_new_cfius_legislation_ enacted.pdf. however, to be exempt, the fund must be exclusively managed by someone who is not a foreign person. id. 225 § 800.216 (defining “foreign person”). 226 id.; shoesmith et al., supra note 8, at 2. 227 id., at 3. 228 id. at 1–3. 229 jackson, supra note 2, at 9–11 (outlining the three formal filing steps); shoesmith et al., supra note 8, at 8 (stating that “there can be significant timing delays in [the cfius review] process” because of “an overwhelming number of cases and limited resources . . .”); id., at 2 (describing the cfius filing as “expensive”). 230 in 2018, over 1,800 cross-border pe deals worth $456 billion were recorded. interview with matthias jaletzke, partner, hogan lovells, llp. another strong year predicted as cross-border private equity activity hits record high value in 2018, hogan lovells llp (apr. 25, 2019), https://dealdynamics.hoganlovells.com/another-strong-yearno. 10:1] rice paddies on the white house lawn 155 become an ineffectual mechanism for filtering truly “foreign controlled” entities into the reporting process.231 fourth, cfius’ definition of foreign creates a bizarre scenario in which a company could be considered foreign by part of the u.s. government and domestic by another part. in the aforementioned case study, for example, the irs would consider bti domestic while cfius would consider bti “foreign.”232 iv. solutions to the inadvertent foreign person problem to address potential discrimination based on racial and national identity, congress, the president, and cfius should take steps to address the inadvertent foreign person status problem233 and the broader challenges associated with determining corporate national identity for cfius review. there are several solutions congress can take to simplify and reduce the regulatory uncertainty for businesses operating with foreign investors. first, individual states could allow for corporations to self-identify with a national identity other than american. second, congress could ignore cfius’ “foreign” control requirement altogether.234 third, the president could disallow specific countries and bad actors from predicted-as-cross-border-private-equity-activity-hits-record-highvalue-in-2018. 231 31 c.f.r.§ 800.216 (2018) (defining “foreign person”). 232 cfius defines “foreign” differently than other government entities. for example, the internal revenue service (irs) defines a foreign corporation as a corporation that is not “domestic.” the irs defines a “domestic corporation” as being “created or organized in the united states or under the laws of the united states . . . .” foreign persons, internal revenue service (nov. 5, 2019), https://www. irs.gov/individuals/international-taxpayers/foreign-persons. 233 shoesmith et al., supra note 8, at 1–3. 234 transactions that are covered transactions, 31 c.f.r. § 800.301 (2018) (defining “covered transactions” as transactions which would “result in control of a u.s. business by a foreign person”); foreign person, 31 c.f.r. § 800.216 (2018) (defining “control” and “foreign person”). 156 columbia journal of race and law [vol. 10:1 investing in the u.s, rather than allocating presidential power to cfius. fourth, congress could incentivize foreign investors to be transparent with their investments and connections to foreign governments by offering an expedited cfius review process. finally, as this note advocates, cfius should stop using the foreign control inquiry as a gatekeeping function and should instead shift the foreign control analysis to the formal review stage, using the scale of foreign control as informative rather than dispositive to its ultimate recommendation. a. self-identification to alleviate questions of whether or not a u.s. corporation is foreign controlled, corporations could explicitly include a national identity in their charter or bylaws. corporate charters and bylaws have flexibility at the stage of incorporation and could contain a provision stating that the corporation identifies as “canadian” or “mexican” or “chinese,” for example.235 in this scenario, the 235 delaware general corporate law (dgcl) outlines both mandatory and optional corporate charter provisions. del. code ann. tit. 8, § 102 (2019). dgcl allows for corporate charters to contain “[a]ny provision for the management of the business and for the conduct of the affairs of the corporation . . . .” § 102(b)(1). delaware’s division of corporations provides sample language for a corporate charter. certificate of incorporation for stock corporation, st. del., https://corpfiles. delaware.gov/incstk09.pdf. the form states “[t]his form contains the basic information required by statute; if you need to add additional information permitted by statute you may draft a new document.” id. at 3. a corporation could self-identify with a national identity by using an optional provision in its charter. additionally, delaware “leave[s] almost complete discretion with respect to the contents of the bylaws.” albert h. choi & geeyoung min, amending corporate charters & bylaws, u. pa. l. legal scholarship repository, aug. 16 2017, at 3, https://scholarship. law.upenn.edu/cgi/viewcontent.cgi?article=2900 &context=faculty_scholarship. corporations could self-identify using the charter, the bylaws, or both. this note uses delaware as an example because over 60% “of the fortune 500 companies are incorporated in no. 10:1] rice paddies on the white house lawn 157 corporation would still be governed under its state of incorporation in the u.s.236 the benefit for a corporation in explicitly stating its national identity is clarity in the cfius review process. beyond cfius review, corporations may see a benefit to aligning with a country. professor richard brooks argues in favor of allowing corporations to take on a racial identity.237 he argues that “legal persons adopt and are ascribed identities for the same reasons as natural persons: identities signify commitments of persons to other persons, communities, beliefs, and conventions.”238 similarly, allowing corporations to claim a national identity would achieve professor brooks goals by allowing corporations to further expand upon their corporate identities and values to shareholders, customers, suppliers, etc. however, to be effective during cfius review, corporations that engage in national security transactions would have to state a national identity in their corporate documents. this scenario presents challenges because corporate law is state-based law and, delaware.” why businesses choose delaware, st. del., https://corp law.delaware.gov/why-businesses-choose-delaware/(last visited nov. 13, 2019). delaware’s popularity is driven by a combination of delaware’s court of chancery which “only hears cases involving business entities” and weak competition from other states. anne anderson et al., how state competition for corporate charters has changed the delaware effect, colum. l. sch. blue sky blog, http://clsbluesky.law.columbia.edu/2017/10/16/how-statecompetitionfor-corporate-charters-has-changed-the-delaware-effect/. 236 corporations can incorporate in any of the 50 states, “regardless of where the firm’s principal place of business, or other assets and activities, are located.” john armour et al., the essential elements of corporate law: what is corporate law?, harv. l. sch. john m. olin ctr. for l., econ. & bus. discussion paper series, 23 (2009). when a corporation is sued, the choice of law rule in most states has the court look to the laws of the state in which the corporation is incorporated in. id. 237 brooks, supra note 135, at 2026. 238 id. 158 columbia journal of race and law [vol. 10:1 without all states requiring self-id, there would be a patch-work of corporations self-identifying with nations. this would require a state-by-state legislative fix.239 while corporate documents are flexible at the time of incorporation, amending a corporate charter requires at least approval of the majority of the board of directors.240 already established corporations may have difficulty gathering enough votes to amend their charter or bylaws.241 additionally, cfius and those concerned about cfius review would still need a reliable way to test the accuracy of a corporation’s self-identification. those auditing corporate selfidentifiers would run into similar challenges experienced by cfius today, as there is no clear-cut test for determining a corporation’s national identity.242 corporations may also run into the same difficult questions of identity that plague individuals.243 239 armour et al., supra note 236, at 23. 240 amending a corporate charter requires the approval of the majority of shareholders and the majority of the board of directors. del. code ann. tit. 8, § 242 (2018). amending corporate bylaws requires the approval of either the majority of the board of directors or the majority of shareholders. § 109. 241 choi & min, supra note 236, at 22. there are plenty of reasons why a corporation may “want to amend its charter and bylaws” including “respond[ing] to new, previously unforeseen circumstances and challenges.” id. however, “going through [a] shareholder voting process is costly and time-consuming” because the board of directors either has to “wait until the next shareholders’ meeting or convene a special shareholders’ meeting” to present the amendment for a vote. id. at 22, 24. additionally, public corporations have to comply with federal laws that require “circulat[ing] a proxy statement” which “imposes an additional cost . . . .” id. at 24. 242 see infra section iii.d. (case study: from all-american to foreign). 243 crenshaw, supra note 135, at 1298 (explaining that governments and people create social constructs of different categories of people); donald c. hambrick et al., when groups consist of multiple nationalities, 19/2 organization studies 181, 185 (1998) (noting that determining one nationality for a large, global corporation could no. 10:1] rice paddies on the white house lawn 159 the most important detriment to relying on selfidentification is that it does not fully address national security concerns. it is likely that a corporation acting as a “trojan horse”244 for a foreign investor with nefarious purposes would self-identify as american regardless. during world war ii, the court noted that “some of the most dangerous of the axis-influenced enterprises may be swiss, dutch, swedish or american” (nationalities which were considered to be friendly to the u.s. at the time).245 additionally, the court noted that corporate owner-ship ran “through tangled mazes of holding companies” purposely structured to make it “extremely difficult to negate a claim that the ownership of the corporation was coincident with the state of incorporation.”246 today’s criticisms of china are similar, and the most recent firrma changes targeted deals structured in a way to circumvent cfius review.247 a self-identification system would be unlikely to alleviate the major concern of foreign economic espionage.248 b. ignore foreign status cfius could ignore the “foreign” control requirement altogether and redefine covered transaction solely in terms of national security. after all, given the growing complexity of global finance and fdi, the foreign control component is difficult to determine and may no longer prove useful. the benefit to eliminating the foreign control requirement is increased efficiency and effectiveness. the foreign analysis is likely both underinclusive and overinclusive. cfius may be reviewing trans prove challenging when “nationality is a potent factor in explaining individuals’ psychological attributes and behaviour”). 244 clark v. uebersee finanz-korporation, a.g., 332 u.s. 480, 488 (1947). 245 id. at 485, n.3. 246 id. 247 jalinous et al., supra note 118. 248 see china economic espionage, supra note 21. 160 columbia journal of race and law [vol. 10:1 actions in which there is negligent foreign involvement,249 slowing down the free-market and costing companies legal fees. simultaneously, cfius likely misses transactions that are purposely structured to evade cfius review.250 therefore, cfius may be more efficient and effective by reviewing every major transaction impacting national security. however, nationality implies allegiance to, or control by, a specific country, a fact that may have significant implications in how management operates a corporation in america.251 by excluding nationality from the review process, cfius may lose out on insightful information. for example, china passed the national intelligence law in 2017, which, according to american officials, “requires chinese companies to support, provide assistance to and cooperate in beijing’s national intelligence work, wherever they operate.”252 in 2018, shortly after the law was passed, canadian officials (at the request of american law enforcement) arrested meng wanzhou, the chief financial officer of huawei, a chinese technology company,253 and accused her of “defrauding banks to help huawei’s business in iran.”254 ren zhengfei, wanzhou’s father and the founder and chief executive of the company, claims that huawei does not conduct espionage on behalf of china.255 however, shortly after wanzhou’s arrest, poland officials arrested a huawei employee on spying charges.256 additionally, germany, 249 clark, 332 u.s. at 489. 250 jalinous et al., supra note 118. 251 paul close, citizenship, europe and change 105 (basingstoke, eds. 1995). 252 santora, supra note 132. 253 raymond zhong, huawei’s reclusive founder rejects spying and praises trump, n.y. times (jan. 15, 2019), https://www.nytimes. com/2019/01/15/technology/huawei-ren-zhengfei.html. 254 id. 255 id. 256 adam satariano & joanna berendt, poland arrests 2, including huawei employee, accused of spying for china, n.y. times (jan. 11, no. 10:1] rice paddies on the white house lawn 161 britain, the czech republic, and norway “have recently questioned how deeply huawei should be involved in developing” their technology infrastructure.257 by ignoring the foreign control analysis, cfius could miss out on valuable information, such as the information in the case of huawei. aside from laws that blatantly require overseas espionage, there are business structures that tie entities close to their nation’s political leaders.258 for example, soes and swfs are closely affiliated with their respective government such that their investments are “plausibly an extension of state policy rather than a function of market dynamics.”259 specifically, soes are businesses run under the control of the government260 and swfs are special investment funds that are created, owned, and controlled by a government.261 typically, swfs are owned by the national government, not the local government or the state government, and they invest outside of their home country.262 given their close ties to governments, soes and swfs may be ordered to invest in the u.s. for nefarious purposes. thus, the foreign control requirement proves valuable when the business in question either is from a country that mandates behavior contrary to u.s. national security interest or is of a structure that implies close contact with a foreign government. c. presidential power the president could use executive power to disallow specific bad-actor countries from investing in the u.s. whatsoever. 2019), https://www.nytimes.com/2019/01/11/world/europe/polandchina-huawei-spy.html?module=inline. 257 id. 258 patrick griffin, note, cfius in the age of chinese investment, 85 fordham l. rev. 1757, 1760 (2017). 259 id. 260 id. 261 gutin, supra note 12. 262 id. 162 columbia journal of race and law [vol. 10:1 the president has the ability to declare a national emergency for “any unusual and extraordinary threat . . . to the national security, foreign policy, or economy of the united states.”263 in addition, the president may “investigate . . . [or] prohibit, any acquisition, . . . use, [or] transfer . . . [of] any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the united states.”264 it is thus within the president’s purview to broadly eliminate investment from countries that are bad actors. the benefit to a broad declaration eliminating investment from certain countries would be clarity. investors would know the rules and could plan their investments accordingly, without having to worry about a cfius review. additionally, the u.s. government would have a more straightforward national security policy. however, the president may be hesitant to make sweeping declarations barring all of a country’s investors from investing in the u.s. for example, while president trump has stated on many occasions that chinese investments are a threat to american national security,265 the administration would have to acknowledge the large volume of capital that chinese investors pour into the u.s. annually.266 this amount of investment supports american jobs and small businesses in the u.s.267 additionally, congress has previously been concerned about the chilling effect of discriminatory rules that would reduce fdi.268 in clark, the court stated, “[i]t is hard for us to assume that congress [expanded twea] . . . in the case of friendly or neutral [foreign] interests whose investments in our economy were in no way infected with 263 50 u.s.c. § 1701(a) (2008). 264 50 u.s.c. § 1702(a)(1)(b) (2001). 265 coppola, supra note 112; see also china economic espionage, supra note 21 (stating that chinese espionage concerns are not unfounded). 266 hanemann, supra note 111 (stating that, in 2016, chinese investment in the u.s. peaked at $46 billion). 267 benefits of foreign direct investment (fdi), supra note 17. 268 yoon-hendricks, supra note 27. no. 10:1] rice paddies on the white house lawn 163 enemy ownership or control.”269 banning an entire country and its citizens from investing in the u.s. would have a chilling effect on the global economy. further, such bans may prove discriminatory in nature. d. expedited review process congress could incentivize foreign investors to be transparent with their connections to foreign governments by offering an expedited cfius review process. specifically, cfius could develop a faster review for investors and entities that have been pre-approved. these investors and entities would be required to open their books to cfius on a regular basis for audits. additionally, each investor and entity would be required to go through the cfius review process at least once before applying for pre-approval. the benefit of an expedited review process is that it allows cfius to use a carrot (a speedier review process), rather than only using a stick (recommending the president block the deal and generating negative publicity).270 additionally, incentivizing would-be investors gives cfius the opportunity to build relationships with repeat investors and to establish a dialogue. investors and entities can use their pre-approval status as an investment incentive in itself—they can market themselves as more stable investors or investees because of their special status with cfius. this, in turn, will funnel more investment to the pre-approved investors and entities. american companies could benefit by having more certainty with their foreign investors, as well as the opportunity to work with foreign investors more easily. ideally, this approach would increase fdi in the u.s. and reduce claims of anti-discrimination. however, an expedited review process for select preapproved investors or entities may result in nefarious foreign actors targeting the “approved” investors or entities to do their bidding. 269 clark v. uebersee finanz-korporation, a.g., 332 u.s. 480, 487 (1947). 270 jackson, supra note 2, at fig.1, 11. 164 columbia journal of race and law [vol. 10:1 this expedited review may also incentivize foreign governments to create squeaky clean profiles for a select group of people or companies to gain the pre-approved cfius status. these concerns could be addressed through a mechanism that would automatically revoke the pre-approved status if cfius’ audits determined there were bad actors involved. however, managing a separate review process could prove cumbersome for cfius. e. review all transactions with a national security implication congress and the president should acknowledge that determining whether a company has foreign control is a complex process that rarely provides a straight-forward answer.271 currently, cfius has oversight over transactions in which there is foreign control and a national security implication. if a transaction is not deemed to be under foreign control, it is not subject to a cfius review, regardless of the national security implications therein. this approach means that cfius runs the risk of missing transactions that are purposely structured to avoid cfius review.272 cfius should shift its oversight to review all transactions with a national security implication. in this scenario, instead of using the foreign control inquiry as a gatekeeping function, cfius should shift the foreign control analysis to the formal review stage and use the scale of foreign control as informative rather than dispositive.273 271 foreign person, 31 c.f.r. § 800.216 (2018) (defining “foreign person”); see infra section iii.d. (case study: from all-american to foreign). 272 jalinous et al., supra note 118 (stating that recent legislation is an attempt to address investment structures the chinese used to circumvent cfius review); see china economic espionage, supra note 21 (recent examples of chinese companies using fdi to conduct espionage in the u.s.). 273 firrma takes a step in this direction through its pilot program for “critical technologies.” ignacio e. sanchez & christine daya, cfius no. 10:1] rice paddies on the white house lawn 165 with this change, stakeholders will benefit from a simplified process. first, congress will not struggle with determining which investment structures should lead to cfius review.274 amending legislation is not a timely mechanism to manage new investment structures that might evade cfius review. in this scenario, congress could narrowly focus on which industries to include in the scope of national security and thereby subject any new investment structures to cfius review.275 second, congress and the president will worry less that cfius is missing transactions that are purposely structured to avoid cfius review. by not using “foreign” control as a gatekeeping function, cfius can review the investor’s level of foreign control and the strength of the foreign influence on a case-by-case basis.276 third, the private sector will have clarity on which businesses are subject to cfius review. rather than being concerned that adding another “foreign” board pilot program mandates declarations for certain non-controlling investments in critical technologies, dla piper (oct. 17, 2018), https://www.dlapiper.com/en/us/insights/publications/2018/10/cfiuspilot-program-mandates-declarations/. during the pilot program, cfius’ foreign control requirement for review will include both investments with foreign “control” and foreign “non-control[]” in 27 specific industries. id. however, this note advocates for cfius to review all transactions with a national security implication, not just transactions with some element of foreign investment. 274 jalinous et al., supra note 118 (stating that recent legislation is an attempt to address investment structures the chinese used to circumvent cfius review). 275 see griffin, supra note 258, at 1783–84 (senators from the mid-west argued that “food safety” and “food security” should be included under cfius’ national security review); jackson, supra note 2, at 62–63 (discussing the proposed acquisition of smithfield foods inc. by a chinese corporation and the public concern for food security). 276 organization for economic co-operation and development, oecd benchmark definition of foreign direct investment 23 (4th ed. 2008) (“it has been argued that in practice there are several factors which may determine the influence a direct investor has over the direct investment enterprise.”). 166 columbia journal of race and law [vol. 10:1 member will lead to cfius review, for example, business leaders will know which trans-actions are likely to lead to cfius review. there are broader benefits to shifting the foreign control question to the review stage. in particular, this process would be more neutral with respect to race and nationality, as all transactions with national security implications would be subject to the cfius review process.277 cfius would retain the ability to examine the scale of foreign control during the review process and determine whether an element of control would impact national security, ensuring that cfius can still identify entities engaging in fdi for nefarious purposes.278 finally, cfius would avoid defining foreign control in a way that is at odds with other government agencies, such as the irs.279 granted, this change may increase cfius’ workload. cfius may need to review more transactions with this change, although it is difficult to determine the degree to which cfius’ workload would increase. in cfius’ most recent report to congress, cfius disclosed that it reviewed 143 covered transactions in 2015.280 however, cfius does not disclose the parties involved in the transactions it reviews.281 without such disclosure, it is difficult to assess how many transactions with national security implications took place without going through a cfius review. therefore, it is impossible to determine how many additional transactions cfius would need to review if the gatekeeping analysis would be limited to national security implications. 277 sanger, under pressure, dubai company drops port deal, supra note 27 (stating that president george w. bush “issued a strong defense [of the dp world deal], suggesting that racial bias lay at the core of the objections . . . ”). 278 see china economic espionage, supra note 21. 279 see internal revenue service, supra note 232. 280 committee on foreign investment in the united states, annual report to congress 2 (2017) (reporting on data from 2015). 281 jackson, supra note 2, at 3. no. 10:1] rice paddies on the white house lawn 167 overall, shifting the foreign control question to the review stage is the ideal solution to address the legal challenges of determining corporate nationality. additionally, this solution adheres to the loftier goals of american enterprise: a free-market that does not discriminate based on racial or national identity.282 v. conclusion while cfius was originally created to appease congressional opponents to fdi, over time, its mission has shifted to the policing of foreign investment under the guise of national security, often with discriminatory overtones. in particular, courts and cfius have struggled to determine what constitutes national identity and to apply this determination to corporations and complex investment structures. additionally, the modern, globalized marketplace renders the foreign control review by cfius simultaneously overinclusive and underinclusive for addressing national security concerns. an ideal solution to this set of challenges is for cfius to stop using the foreign control inquiry as a gate-keeping function. instead, cfius should shift the foreign control analysis to the formal review stage and use the scale of foreign control as informative rather than dispositive. this solution addresses national 282 see president ronald reagan, president of the u.s., radio address to the nation on the canadian elections and free trade, supra note 1 (“the expansion of the international economy is . . . central to our vision of a peaceful and prosperous world of freedom.”); sanger, under pressure, dubai company drops port deal, supra note 26 (president george w. bush “issued a strong defense [of the dp world deal], suggesting that racial bias lay at the core of the objections . . . .”); mundheim & heleniak, supra note 15, at 222 (“development of the open [investment] policy is due in part to [the american] belief in the free market system, and in part to a careful and pragmatic assessment of our national self-interest.”); gerowin, supra note 15, at 633 (“the foundation of [the policy of unrestricted investments] is the maintenance of a strong belief in the free market as a means of achieving maximum efficiency in the allocation of scarce resources. as the strongest force in the market, the united states also stands to gain the most from it.”). 168 columbia journal of race and law [vol. 10:1 security concerns, promotes efficiency and effectiveness for all three branches of government, and adheres to american freemarket and anti-discriminatory policies. columbia journal of race and law an uphill battle for reparationists: a quantitative analysis of the effectiveness of slavery reparations rhetoric michael conklin* on juneteenth (june 19), 2019 the united states house judiciary committee heard over three hours of testimony regarding slavery reparations.1 various rhetorical methods were used by the expert witnesses to promote slavery reparations. many emphasized the horrors of the slave trade. many pointed to current racial disparities in education, criminal justice, and health as indicators that the harms of slavery are still present today. others testified how the rising/increasing success of america is in large part attributable to slave labor. a white woman discussed the liberating power she experienced when she discovered and then addressed her ancestors’ involvement in the slave trade.2 loyola law school professor eric miller used the tulsa, oklahoma race riot of 1921 and the reparations that followed as a precedent for the importance and feasibility of reparations.3 this essay examines how effective these arguments would have been to change the average american’s position on slavery reparations. furthermore, would the efficacy differ when examining subsets of the population, such as conservatives and liberals? and what if a particular pro-slavery reparations argument was presented by a white person instead of an african * powell endowed professor of business law, angelo state university. 1 h.r. 40 and the path to restorative justice,u.s. h. comm. on the judiciary (2019), https://judiciary.house.gov/legislation/hearings/hr40-and-path-restorative-justice (video recording of hearing 3 hours and 40 minutes long) [hereinafter h.r. 40 hearing]. 2 h.r. 40 and the path to restorative justice: hearing on h.r. 40 before the subcomm. on the constitution, civil rights and civil liberties, of the h. comm. on the judiciary, 116th cong. (2019) (statement of katrina browne). 3 id. (statement of eric miller). 34 columbia journal of race and law [vol. 10:1 american, would that change the way it was received? this essay presents the findings of a survey designed to answer those questions. the recent surge in popularity of reparations discussions from democratic primary candidates brings this issue to the forefront. unfortunately, most of the academic focus on reparations ignores the pragmatic implications of changing public opinion on the issue—the main obstacle to successful implementation of a slavery reparations scheme. by evaluating potential explanations for why certain reparations rhetoric is more effective than others—and how some even do more harm than good—this study will help to inform reparationists on the effectiveness of different rhetorical tactics. furthermore, the often counterintuitive results call into question common assumptions about the root causes of slavery reparation opposition. impediments to slavery reparations such as the anti-reparations norm, specific implementation challenges, the risk of selfsabotage, legal challenges, and the incompatibility with american individualism are also discussed. i. introduction .................................................................35 a. reparations defined ................................................36 b. brief global history ....................................................38 c. modern resurgence .....................................................40 ii. survey ............................................................................44 a. methodology ...............................................................44 b. results .......................................................................45 iii. general application and discussion ............................46 a. anti-reparations norm ................................................49 b. individualism impediment ............................................51 c. cautious optimism ......................................................52 d. non-voluntary alternatives ..........................................56 e. future research ...........................................................58 iv. conclusion ....................................................................61 v. appendix a: slavery reparations positions for the leading democratic 2020 presidential candidates. ......62 a. support for h.r. 40: .....................................................62 no. 10:1] an uphill battle for reparations 35 b. unknown position: ......................................................63 i. introduction on juneteenth (june 19), 2019 the united states house judiciary committee heard over three hours of testimony regarding slavery reparations.4 various rhetorical methods were used by the expert witnesses to promote slavery reparations. many emphasized the horrors of the slave trade. many pointed to current racial disparities in education, criminal justice, and health as indicators that the harms of slavery are still present today. others testified how the rising/increasing success of america is in large part attributable to slave labor. a white woman discussed the liberating power she experienced when she discovered and then addressed her ancestors’ involvement in the slave trade.5 loyola law school professor eric miller used the tulsa, oklahoma race riot of 1921 and the reparations that followed as a precedent for the importance and feasibility of reparations.6 it is unlikely that these arguments had any ultimate effect on the politicians of the house judiciary committee to whom they were addressed. as evidenced by the prepared scripts that the committee members were reading from, they all likely had their minds made up in advance. but how effective would these experts’ arguments have been to change the average american’s position on slavery reparations? and would the efficacy differ 4 h.r. 40 and the path to restorative justice, u.s. h. comm. on the judiciary (2019), https://judiciary.house.gov/legislation/hearings/hr40-and-path-restorative-justice (video recording of hearing 3 hours and 40 minutes long) [hereinafter h.r. 40 hearing]. 5 h.r. 40 and the path to restorative justice: hearing on h.r. 40 before the subcomm. on the constitution, civil rights and civil liberties, of the h. comm. on the judiciary, 116th cong. (2019) (statement of katrina browne). 6 id. (statement of eric miller). 36 columbia journal of race and law [vol. 10:1 when examining subsets of the population, such as conservatives and liberals? what if a particular pro-slavery reparations argument was presented by a white person instead of an african american, would that change the way it was received? this essay presents the findings of a survey designed to answer those questions. much has been written about the debate in academe regarding slavery reparations. however, with the recent surge in the popularity of reparations—demonstrated by sixteen of the twenty democratic 2020 presidential frontrunners expressing support for slavery reparations7—the focus should be on the more pragmatic aspects of persuading the public on the issue. this is the main obstacle to successful implementation of a slavery reparations scheme. by evaluating potential explanations for why certain reparations rhetoric is more effective than others—and how some even do more harm than good—this study will help to inform reparationists on the effectiveness of different rhetorical tactics. furthermore, the often counterintuitive results call into question common assumptions about the root causes of slavery reparation opposition. while the results of this study will prove valuable to reparationists, they still face steep challenges to the ultimate goal of implementing a slavery reparations scheme. this essay also discusses these impediments such as the anti-reparations norm, specific implementation challenges, the risk of self-sabotage, legal challenges, and the incompatibility with american individualism. a. reparations defined when asked about slavery reparations in 2019, bernie sanders responded, “[w]hat does that mean? what do they mean? i'm not sure that anyone's very clear . . . .”8 while perhaps an 7 see infra appendix a. 8 danielle kurtzleben, 2020 democrats wrestle with a big question: what are reparations?, npr (mar. 1, 2019, 5:00 am), https://www.npr.org/2019/03/01/698916063/2020-democrats-wrestlewith-a-big-question-what-are-reparations. no. 10:1] an uphill battle for reparations 37 attempt to avoid providing a direct answer to the question, sanders’ confusion is well justified. the word “reparations” has been used to refer to a broad spectrum of policies. kamm howard, co-chair of the national coalition of blacks for reparations in america (ncobra) defined reparations as “anything that helps people of african descent in this country build wealth,” but not “[f]ar-reaching programs that are nonracial programs . . . .”9 reparationist ta-nehisi coates defined repa-rations as “more than recompense for past injustices -more than a handout, a payoff, hush money, or a reluctant bribe. what i’m talking about is a national reckoning that would lead to spiritual renewal.”10 others propose the creation of separate states for blacks as reparations.11 in 2018, new york gubernatorial candidate cynthia nixon claimed that prioritizing african americans for marijuana dispensary licenses was “a form of reparations.”12 some scholars include affirmative action and apologyies in the category of reparations.13 some define lawsuits against corporations for their role 9 tina nguyen, the awkward truth about democrats and reparations, vanity fair (apr. 5, 2019), https://www.vanityfair .com/news/2019/04/2020-democratic-candidates-on-reparations. 10 frank newport, reparations and black americans’ attitudes about race, gallup (mar. 1, 2019), https://news.gallup.com/opinion/ polling-matters/247178/reparations-black-americans-attitudesrace.aspx. 11 alfred l. brophy, the cultural war over reparations for slavery, 53 depaul l. rev. 1181, 1200 (2004). 12 mona zhang, cannabis industry could be ‘a form of reparations,’ says cynthia nixon, forbes (may 7, 2018, 7:00 am), https://www.forbes.com/sites/monazhang/2018/05/07/cannabisindustry-could-be-a-form-of-reparations-says-cynthianixon/#2e9c7db44b48. 13 eric a. posner & adrian vermeule, reparations for slavery and other historical injustices, 103 colum. l. rev. 689, 725 (2003). defining affirmative action and apologies as “in-kind reparations.” 38 columbia journal of race and law [vol. 10:1 in facilitating the holocaust as reparations.14 there are even groups that seek to repair environmental harm under an “environmental reparations” theory.15 stretching the definition of slavery reparations too thin effectively renders the term devoid of any practical meaning. simply stating, as some do, that slavery reparations encompasses anything that helps modern-day african americans overcome the lasting effects of slavery is too broad. this definition would include progressive taxation rates, social safety nets, and education subsidies. this overly broad definition would place nearly every washington politician in the pro-slavery reparations camp.16 for the purposes of this paper, “reparations” is defined in the narrow sense of a cash transfer from a government for a past wrong. b. brief global history before the twentieth century, the payment of reparations was largely limited to instances of the losing state in a war agreeing to make payments to the victorious state as an element of peace negotiations.17 within the last 100 years, however, examples have diversified. iraq continues to pay reparations for the 14 burt neuborne, holocaust reparations litigation: lessons for the slavery reparations movement, 58 n.y.u. ann. surv. am. l. 615, 615-17 (2001). 15 cymie r. payne, developments in the law of environmental reparations, in environmental protection and transitions from conflict to peace, 329, 360 (carsten stahn et al. eds., 2017). 16 while many politicians debate the extent to which tax rates should be progressive and how expansive the public safety net should be, very few politicians argue for overall regressive taxation and the complete abolishment of a social safety net. 17 richard m. buxbaum, a legal history of international reparations, 23 berkeley j. int’l l. 314, 319 (2005). no. 10:1] an uphill battle for reparations 39 gulf war.18 west germany paid holocaust reparations after world war ii.19 the u.s. paid reparations to compensate indian tribes in 1946.20 some have defined the government’s 1975 tuskegee syphilis study settlement as reparations.21 in 1994, florida compensated survivors and descendants of the 1923 rosewood race riot and massacre.22 also notable is that, while no financial compensation was given, in 1993, the u.s. federal government issued an apology for loss of lands due to the 1893 hawaiian annexation.23 interestingly enough, the united states has been involved in a slavery reparations scheme. the united kingdom compensated southern planters more than $1,000,000 for encouraging their slaves to run away during the war of 1812.24 18 john f. burns, threats and responses: reparations; a cadillac and other plunder: iraq-kuwait issue resurfaces, n.y. times (dec. 30, 2002), https://www. nytimes.com/2002/12/30/world/threats-responsesreparations-cadillac-other-plunder-iraq-kuwait-issue.html. 19 kurt schwerin, german compensation for victims of nazi persecution, 67 nw. u. l. rev. 479, 522 (1972). 20 nell jessup newton, compensation, reparations, & restitution: indian property claims in the united states, 28 ga. l. rev. 453, 468 (1994). 21 the descendants of deceased participants in the tuskegee syphilis study filed a class action lawsuit against the federal government resulting in a nearly $9,000,0000 settlement in 1975. posner & vermuele, supra note 13, at 695 n.19. 22 richard a. ryles, the rosewood massacre: reparations for racial injustice, nat’l b. ass’n mag., mar./apr. 1995, at 15, 24. 23 jennifer m.l. chock, one hundred years of illegitimacy: international legal analysis of the illegal overthrow of the hawaiian monarchy, hawai‘i’s annexation, and possible reparations, 17 u. haw. l. rev. 463, 512 (1995). 24 greg grandin, once upon a time governments paid slave reparations … to slaveowners, geo. wash. u. columbian coll. arts & sci. history news network (feb. 25, 2014), https://historynewsnetwork.org/article/154830. 40 columbia journal of race and law [vol. 10:1 c. modern resurgence support for slavery reparations in the u.s. has ebbed and flowed over the last sixty years. the movement gained momentum in the late 1960s and then slowed down until gaining momentum again in the late 1990s.25 while still far from reaching majority support among americans, slavery reparations has recently experienced another surge in popularity. in 2016, a united nations panel concluded that the u.s. owes african americans reparations for a legacy of “racial terrorism.”26 georgetown students voted in 2019 to increase student fees in order to pay reparations to descendants of the slaves sold by the school in 1838.27 a google trends search for “reparations” among u.s. google searches shows a dramatic spike in 2019.28 in every congressional term since 1989, representative john conyers (d-mi) has proposed a bill to 25 natasha parassram concepcion, legislative focus: reparations for african-americans, 8 hum. rts. brief 16, 16 (2001); tamar lewin, calls for slavery restitution getting louder, n.y. times (june 4, 2001), https://www.nytimes.com/2001/06/04/us/calls-for-slavery-restit ution-getting-louder.html. 26 eugene mason, un panel says the u.s. owes reparations to africanamericans, pbs (sept. 29, 2016, 1:22 pm), https://www.pbs .org/newshour/nation/reparations-african-americans-un. 27 michelle lou & brandon griggs, georgetown students vote in favor of paying reparations to the descendants of the slaves who made the school possible, cnn (apr. 12, 2019, 4:49 am), https://www.cnn.com/2019/04/11/us/georgetown-students-slaveryreparations-trnd/index.html. 28 the number of searches conducted in june 2019 is nearly triple the previous peak set in march 2004 (data only goes back to january 2004). google search trends for “reparations,” google, https:// trends.google.com/trends/explore?date=all&geo=us&q=reparations (last visited oct. 17, 2019). no. 10:1] an uphill battle for reparations 41 study and develop slavery reparations.29 the bill for the 2019-2020 term has fifty-five co-sponsors, the most ever. 30 a 2019 survey found 13% support for slavery reparations among white americans,31 which is more than a 300% increase from the only 4% support from white americans in 2013.32 sixteen of the twenty democratic candidates for president in the first round of the 2020 nbc presidential debates have, in some way, expressed support for reparations.33 compare that to the 2016 democratic primary where all three candidates on the ballot in iowa expressly rejected reparations.34 although barack obama arguably supported 29 donna owens, veteran congressman still pushing for reparations in a divided america, nbc news (feb. 20, 2017, 2:18 am), https://www.nbcnews.com/news/nbcblk/rep-john-conyers-stillpushing-reparations-divided-america-n723151. 30 “over the years [the bill] attracted fluctuating levels of support in the form of co-sponsors, with a high of 48, in 1999. jackson lee’s 2019 bill already has 55 co-sponsors . . . .” patrick goodenough, house panel to examine slavery reparations; 2020 democrat hopefuls back legislation, cns news (june 14, 2019, 4:38 am), https://www.cnsnews.com/news/article/patrick-goodenough/housepanel-examine-slavery-reparations-2020-democrat-hopefuls-back. 31 huffpost: legacy of slavery, huffington post (apr. 8-9, 2019), https://big.assets.huffingtonpost.com/athena/files/2019/04/11/5caf615 0e4b098b9a2d06e20.pdf. 32 brophy, supra note 11, at 1183-84. 33 see appendix a. 34 during the 2016 election, hillary clinton and bernie sanders did not support slavery reparations. german lopez, the bernie sanders and reparations controversy, explained, vox (jan. 25, 2016, 10:25 am), https://www.vox.com/2016/1/22/10811800/bernie-sanders-rep arations-2016. martin o’malley did not support slavery reparations. h. a. goodman, hillary clinton isn’t only against reparations, she accepted money from prison lobbyists, huffington post (jan. 22, 2016, 10:37 am),https://www.huffpost.com/entry/hillary-clintonreparations_b_904 7760?guccounter=1. 42 columbia journal of race and law [vol. 10:1 the general idea of reparations through social policy and investment, he was consistently against cash reparations stating that he opposed, “just signing checks over to africanamericans.”35 likewise, john kerry,36 al gore,37 and bill clinton38 all avoided supporting cash reparations for slavery. however, it is important to emphasize that this recent support for slavery reparations among the 2020 democratic presidential candidates does not correspond to the levels of support from the party. in 2019, only 34% of democrats support slavery reparations in the form of cash payments.39 it is possible that supporting slavery reparations is nevertheless a wise strategic move for these candidates since african americans play a significant role “in the early voting states of south carolina, alabama, north carolina, tennessee, and virginia.”40 but even among african americans, support for slavery reparations is less than 60%.41 35 kevin outterson, the end of reparations talk: reparations in an obama world, 57 kan. l. rev. 935, 945 (2009). 36 kerry opposes slavery reparations, wash. times (apr. 15, 2004), https://www.washingtontimes.com/news/2004/apr/15/20040415114946-9257r/. 37 amy paulson, gore deflects bradley’s attacks during democratic debate, cnn (feb. 21, 2000 at 11:36 pm), http://www.cnn.com/2000/ allpolitics/stories/02/21/apollo.debate/. 38 tuneen e. chisolm, sweep around your own front door: examining the argument for legislative african american reparations, 147 u. pa. l. rev. 677, 703 (1999). 39 huffpost: legacy of slavery, supra note 31. 40 “the black vote could be a critical factor in next year’s democratic presidential primaries, particularly in the early voting states of south carolina, alabama, north carolina, tennessee and virginia.” newport, supra note 10. 41 exclusive point taken-marist poll, marist (may 2016), http://maristpoll.marist.edu/wpcontent/misc/usapolls/us160502/point no. 10:1] an uphill battle for reparations 43 it is unclear exactly why this resurgence in the slavery reparations movement is occurring. it is somewhat counterintuitive for the reparations movement to gain support the further chronologically removed we become from slavery.42 conversely, perhaps this correlation is to be expected given that the further removed from slavery we become, the easier it is to look at the government’s past actions more objectively. another potential explanation for the current resurgence is that the presidency of barack obama from 2009-2016 effectively assuaged white guilt on the issue.43 therefore, we are now picking up where the momentum of the early 2000s left off. additionally, the recent black lives matter movement and donald trump presidency may have caused people to reconsider issues of race. %20taken/reparations/exclusive%20point%20taken-marist% 20poll_reparations%20banner%201_may%202016.pdf#page=4. 42 there is a similarly counterintuitive trend in how support for affirmative action has increased over time, despite how the necessity of affirmative action policies should diminish over time. the partisan divide on political values grows even wider, pew research ctr. (oct. 5, 2017), https://www.people-press.org/2017/10/05/4-raceimmigration-and-discrimination/. 43 “president barack obama’s election, however, has changed the relevance of reparations as a political tool for making these changes” because he “refuses to apply reparations talk to social programs focusing on disadvantaged community uplift. president obama strikes broader themes, bypassing slavery reparations . . . at this point, perhaps black americans should focus on obama’s plans and let reparations rest as a political agenda.” outterson, supra note 35, at 936. 44 columbia journal of race and law [vol. 10:1 ii. survey a. methodology this survey consisted of background questions regarding age, race, and political affiliation. then, subjects were asked two questions about slavery reparations. the first was simply, “[h]ow likely are you to support reparations for african americans in the form of a cash payment from the government?” the second started with one of four prompts in favor of slavery reparations followed by, “[a]fter hearing this, how likely are you to support reparations for african americans?” in the interest of simplicity, this phrasing only asked about slavery reparations “for african americans” and not the more specific reparations scheme for african americans who can prove they were descended from slaves. in other surveys, the latter phrasing produces slightly more support.44 the four variations of the prompt in favor of slavery reparations were as follows: precedent: “i support reparations for african americans in the form of a cash payment by the government. there is historical precedent in america for compensating victims of governmental discrimination. for example, japanese americans who were incarcerated in internment camps during world war ii received reparations from the u.s. government in the form of a cash payment in 1988.” empathy: “i support reparations for african americans in the form of a cash payment by the government because of the lasting effects of slavery. imagine if you and your family were the victims of appalling and intentional governmental discrimination. wouldn’t you want to be compensated for the harm you suffered?” white person emphasizing harm: “as a white person i recognize that white people have caused a lot of suffering to 44 24% of survey respondents supported slavery reparations for all african americans who are u.s. citizens, while 26% supported slavery reparations for african americans who are descended from slaves. exclusive point taken-marist poll, supra note 41. no. 10:1] an uphill battle for reparations 45 african americans through the lasting effects of slavery. african americans should receive reparations in the form of a cash payment by the government to compensate them for the harm that white people have caused them.” african american person emphasizing harm: “as an african american i recognize that white people have caused a lot of suffering to african americans through the lasting effects of slavery. we should receive reparations in the form of a cash payment by the government to compensate for the harm that white people have caused us.” a 100-point likert scale was used with descriptive indicators at 0, 50, and 100 labeled, “extremely unlikely,” “neither likely nor unlikely,” and “extremely likely,” respectively. this likert scale was chosen over the more simplistic “support” or “oppose” methodology in most reparations surveys for two reasons. first, it allows for the analysis of smaller, incremental changes, such as someone becoming slightly more or less opposed to slavery reparations. second, it allows for a more precise picture of the state of support. simply tallying who “supports” or “opposes” slavery reparations does not show the magnitude of support for the antiand proslavery reparations positions, and therefore, how much is required to transition those opposed to slavery reparations into those who support it. the survey was conducted in 2019 and completed by 127 participants. b. results the overall results found that the empathy prompt received the most support, garnering an average score of 36.2 out of 100.45 the precedent and white person emphasizing harm prompts received 33.8 and 32.9, respectively. in a distant fourth 45 note that this figure does not correspond to 36.2% support for slavery reparations. rather, this is the average result from the 0-100 likert scale where 0 was “extremely unlikely,” 50 was “neither likely nor unlikely,” and 100 was “extremely likely” to support slavery reparations in the form of a cash payment. 46 columbia journal of race and law [vol. 10:1 place was the african american person emphasizing harm prompt at 13.8. because the research subjects in the four groups were not uniform in their initial resistance to slavery reparations, the change in their support is a more reliable indicator of a prompt’s true effectiveness. for this, the net percentage change resulting from the prompt was measured (percentage of participants who increased their support after hearing the prompt minus the percentage of participants who decreased their support after hearing the prompt). here, the precedent prompt produced the best results at 30.4%. the empathy prompt also performed well at 26.7%. but the african american person and white person emphasizing harm prompts both had a net negative impact on gaining support for slavery reparations resulting in -16.6% and 17.6% net effects, respectively. table 1. prompt response results prompt average score (out of 100) net percentage change resulting from the prompt empathy 36.2 26.70% precedent 33.8 30.40% white person emphasizing harm 32.9 -17.60% african american person emphasizing harm 13.8 -16.60% iii. general application and discussion the results of this survey provide valuable feedback for slavery reparationists. they show that even on this highly controversial and politically charged issue, a lot of people have an open mind and are willing to alter their position when confronted with pro-slavery reparations arguments. this re-search also no. 10:1] an uphill battle for reparations 47 shows that not every pro-slavery reparations argument is equally effective. reparationists can likely increase their effectiveness by implementing empathy and precedent arguments to their rhetoric when advocating for slavery reparations. conversely, reparationists (whether black or white) are advised against emphasizing the harm “that white people caused” through slavery, as this tactic is unlikely to be effective. the data does not offer a basis for drawing conclusions on why the latter strategy was less effective than the former two strategies of empathy and precedent, but social and historical observations can lead us to potential theories. perhaps emphasizing the harm from slavery caused participants to become skeptical as to how much harm is inflicted today from a practice over 150 years ago. or, maybe it was the somewhat accusatory nature of how the prompt points to white people as the cause of the harm (68.1% of survey participants were white). going into this research, it was theorized that the african american person emphasizing harm prompt would rank considerably worse than the other three prompts due to the author of that prompt appearing to be self-serving by favoring a cash transfer to him or herself. perhaps this prompt performed roughly the same as the white person emphasizing harm prompt because participants felt guiltier maintaining an anti-slavery reparations position in response to an african american. the performance of the african american person emphasizing harm prompt is even more peculiar in that it performed better among conservatives than liberals as discussed below.46 consistent with other surveys on the issue, this research found liberals to be more in favor of reparations than conservatives.47 liberals were also more likely than conserve 46 for purposes of this study, “liberal” is defined as 0-39 and “conservative” as 61-100 on a 0-100 likert, political affiliation scale asked at the beginning of the survey. 47 a 2019 poll found that 49% of democrats and 5% of republicans res-ponded that the government should “make cash payments to black 48 columbia journal of race and law [vol. 10:1 atives to increase their support for reparations after reading the pro-reparations prompt. the average net change over the four prompts was 34% for liberals; the most effective prompt for liberals was precedent which resulted in a net 75% increase in support, followed by white person emphasizing harm at 37%. the empathy prompt resulted in a 25% net increase in support, and none of the liberals who read the african american emphasizing harm prompt changed their level of support from their original response. three of the four prompts had a net positive effect on conservatives as well. however, the response to the fourth prompt was so negative with conservatives that the average net effect of the four prompts was essentially zero. the prompts of precedent, empathy, and african american person emphasizing harm produced net increases of 18%, 29%, and 10%, respectively. the curious exception was the prompt of white person emphasizing harm which resulted in a net 58% decrease in support among conservatives. this result was unexpected and somewhat counterintuitive. given that the vast majority of subjects that identified as republican were also white, one might expect that this demographic would relate more to the author of the white person emphasizing harm prompt, and therefore be more likely to be persuaded by the author of that prompt. perhaps there was a judgment by conservatives that a white person advocating for slavery reparations was in some way betraying their white race. or, as previously mentioned, maybe they felt guiltier maintaining an anti-slavery reparations position in response to an african american than a fellow white person. americans who are descendants of slaves.” mohamed younis, as redress for slavery, americans oppose cash reparations, gallup (jul. 29, 2019), https://news. gallup.com/poll/261722/redress-slaveryamericans-oppose-cash-reparations. aspx. no. 10:1] an uphill battle for reparations 49 a. anti-reparations norm before reading the pro-reparations prompt, there was very low support for slavery reparations by the participants in this study. the average response before reading the prompt was only 27.1 out of 100. this is consistent with other surveys on the issue that show low overall support for slavery reparations.48 this consistent, anti-reparations norm perpetuates a cycle that disincentivizes people from considering the issue with an open mind.49 historically, the most vocal advocates for united states slavery reparations are generally “historically controversial figures and groups.”50 examples include fidel castro,51 louis farrakhan,52 malcolm x,53 marcus garvey,54 james foreman,55 elijah muhammad,56 jesse jackson,57 and al sharpton.58 this 48 this author was unable to locate any surveys that produced 40% or higher overall support for slavery reparations. 49 lee a. harris, “reparations” as a dirty word: the norm against slavery reparations, 33 u. mem. l. rev. 409, 435 (2003). 50 id. at 421. 51 id. at 425 n.80. 52 id. 53 jennifer warren, demanding repayment for slavery, l.a. times (july 6, 1994, 12:00 am), https://www.latimes.com/archives/la-xpm1994-07-06-mn-12501-story.html. 54 harris, “reparations” as a dirty word: the norm against slavery reparations, supra note 49, at 421-22. 55 id. 56 id. at 423. 57 adam harris, jesse jackson on reparations: ‘we are due a different kind of recognition’, the atlantic (jun. 19, 2019), https://www.theatlantic.com /politics/archive/2019/06/jesse-jacksonreparations-2020-and-racism/592021/. 58 david weigel, the trailer: in the sharpton primary, democrats put civil rights and reparations at center stage, wash. post (apr. 4, 2019), 50 columbia journal of race and law [vol. 10:1 adverse selection phenomenon is harmful to the slavery reparations movement in three ways. first, by their very nature, controversial figures are unlikely to present their case in a cautious and pragmatic way aimed at garnering support from the majority of americans.59 second, there is the related problem of affiliation; average americans concerned with their reputation generally do not want to be affiliated with those deemed extremists. 60 third, this leads to a vicious circle that is difficult to escape in which vocal advocates are disproportionately controversial figures causing average americans to view the cause as controversial and thus shy away from public support.61 this then leads back to the initial problem: that only controversial figures are willing to speak out on the issue, and the self https://www.washingtonpost.com/politics/paloma/the-trailer/ 2019/04/04/the-trailer-in-the-sharpton-primary-democrats-put-civilrights-and-reparations-at-center-stage/5ca518281b326b0f7f38f30f/. however, it is important to note that the examples of controversial slavery reparationists are not a universal rule. there have been mainstream advocates for slavery reparations as well, including martin luther king, jr., abraham lincoln, and james monroe. see harris, “reparations” as a dirty word: the norm against slavery reparations, supra note 49, at 421 n.61. 59 james forman would interrupt church services by demanding slavery reparations using language “heavy in inflammation and speckled with expletive[s] . . . forman was vilified as a marxist and sympathizer of malcolm x . . . as a result of forman’s tactics, many were shocked by the idea of slavery reparations. in sum, contentious leadership has negatively shaped public attitudes about slavery reparations, making it taboo for average americans to rally around the idea. individuals likely balk at supporting slavery reparations because they associate the issue with divisive figures.” harris, “reparations” as a dirty word: the norm against slavery reparations, supra note 49, at 424-25. 60 id. at 435-36. 61 “many conceal their support for slavery reparations for fear of cutting against prevailing norms.” id. at 430. no. 10:1] an uphill battle for reparations 51 perpetuating cycle continues. as lee harris summarized it, “an anti-reparations norm will lead to reflexive dismissal of proposals for slavery reparations.”62 however, there is hope that this cycle created by the antireparations norm is weakening. survey trends show increasing support for slavery reparations. and the overwhelming support for slavery reparations by the 2020 democratic presidential hopefuls may provide evidence that the vicious circle that handicaps the slavery reparations movement from gaining momentum is breaking down. b. individualism impediment one of the strongest aspects of culture in the united states is individualism.63 scholars have cited this as a significant barrier to reparations efforts.64 in a broad sense, slavery reparations are based on a group-oriented claim. therefore, the very essence of slavery reparations is antithetical to an individualist culture.65 more specifically, self-reliance, private property, and equal opportunity are fundamental aspects of individualism. unfortunately for reparationists in america, these three fundamental aspects are also somewhat incompatible with slavery reparations.66 individualists are more tolerant of wealth inequality, believing that financial success is largely a function of internal forces such as hard work and ability rather than external forces such as upbringing and environment.67 the mechanism required for reparations schemes—governmental taking of private 62 id. at 438. 63 id. at 413. 64 “[a] norm against slavery reparations flows, rather predictably, from a political culture of individualism.” id. at 412-13. 65 id. at 417. 66 id. at 421. 67 id. at 417. 52 columbia journal of race and law [vol. 10:1 property for redistributive efforts—is also problematic to individualists as it goes against their belief in the sanctity of private property.68 the final core belief of individualists is that of equal opportunity. this may appear to be consistent with the slavery reparations movement, which seeks to compensate for past injustices that have lasting effects on present-day opportunities. however, the individualists’ notion of equal opportunity is premised on the notion that america currently has parity of opportunity and therefore no leveling of the playing field is required.69 c. cautious optimism the results of this survey should be interpreted very cautiously by reparationists. yes, providing certain prompts can increase support for slavery reparations. however, since the starting point for the average american is so antagonistic to the idea of slavery reparations, the most effective prompt in this study (the empathy prompt) still fell far short of even reaching the level of indifference.70 and unfortunately for reparationists, even these results may be overly optimistic. this study did not present participants with competing anti-reparation arguments that are likely to be encountered in the real world. additionally, it is easier to gain support for the abstract notion of slavery reparations than to gain support for a specific reparations scheme. as one slavery 68 id. at 418. in “no other country in the world is the love of property keener or more alert than in the united states, and nowhere else does the majority display less inclination toward doctrines which in any way threaten the way property is owned.” id. (quoting alexis de toquiville). 69 id. at 420. 70 the empathy prompt resulted in an average of 36.2 out of 100 where 0 is defined as “extremely unlikely” to support and 50 is defined as “neither likely nor unlikely” to support. no. 10:1] an uphill battle for reparations 53 reparations scholar put it, “[i]t is easier to state aspirational goals, rather than concrete plans.”71 a functional slavery reparations plan would have to address many complex, controversial, and amorphous issues. determining the amount of compensation and the related issue of what is being compensated would likely lead to contention among those in the movement. slavery reparations estimates range from $36 billion to $14 trillion.72 would slavery reparations compensate for lost wages, pain and suffering, family separation, post-slavery policies such as jim crow, or some combination thereof? if a consensus was reached as to the amount of compensation and what the compensation was for, then the even more contentious issue of who gets what must be addressed. reparations advocate clarence page commented, “[e]ven if americans ever were to get past arguing with each other over whether and how much reparations are owed, i fear we black americans would wipe each other out in fighting over who was going to receive it.”73 there are so many different possible scenarios that it would be difficult to get a majority of reparationists to agree on one. would people have to prove they were descendants of slaves? what would be accepted as proof of slavery descent, who would make the determination, and what standard of proof would be applied to the determination? would people who are more closely related to slaves receive proportionately more compensation? would whites whose ancestors died to help end slavery receive compensation or a waiver for the costs of reparations? would 71 brophy, supra note 11, at 1200. 72 douglas main, slavery reparations could cost up to $14 trillion, according to new calculation, newsweek (aug. 19, 2015, 12:12 pm), https://www.newsweek.com/slavery-reparations-could-cost-14trillion-according-new-calculation-364141. 73 clarence page, reparations movement gaining cult status, chi. tribune (aug. 28, 2002), https://www.chicagotribune.com/news/ctxpm-2002-08-28-0208280364-story.html. 54 columbia journal of race and law [vol. 10:1 african americans whose ancestors helped facilitate the slave trade receive compensation? the harmful effects of the slave trade extend beyond the descendants of the slaves forcibly brought to america; what about compensation for the harm done to communities in africa? assuming the funds come from the general treasury is it fair that wealthy african americans would end up paying far more for reparations than they receive? and this is to say nothing of the more philosophical issues such as would slavery reparations result in moral licensing which could cause the country to ignore future racial issues based on a belief that the subject was already addressed?74 would slavery reparations cause harmful, racial resentment among poor whites who are in a lower socio-economic class than many african americans? would slavery reparations, by singling out people for different treatment by the government, perpetuate racism by reinforcing the notion that races are inherently different and should be treated differently? would the monetization of reparations claims result in the commodification, and therefore denial, of the humanity of slaves?75 further complicating an already difficult issue, evidence suggests that some african americans would withdraw support 74 this issue has been brought up by african american antireparationists such as a former assistant director of the naacp who rejected slavery reparations as a “diversionary and paltry way out for guilt-ridden whites.” jason l. riley, the illogic of slavery reparations at this late date, wall street journal (mar. 19, 2019, 7:14 pm), https://www.wsj.com/ articles/the-illogic-of-slavery-reparations-atthis-late-date-11553037261. rep. mike johnson (r-la) used the preceding quote during the house judiciary committee’s june 2019 hearing on slavery reparations. h.r. 40 hearing, supra note 4 (testimony of rep. mike johnson (r-la) at 29:00). 75 charles forsdick, compensating for the past: debating reparations for slavery in contemporary france, 19 contemp. french & francophone stud. 420, 426 (2015). no. 10:1] an uphill battle for reparations 55 from a specific reparations scheme if it deviates from their preferred scheme. this is demonstrated by the peculiar result that some african americans who support slavery reparations for all african americans do not support a scheme of slavery reparations limited to those who can prove slave descent.76 note that this statistic is not saying that those african americans, if given the binary choice, would prefer a reparations scheme for all african americans over a scheme that only included those who could prove slave descent. rather, if given the choice bet-ween the former reparations scheme and no scheme they would choose the reparations scheme. but, if given the choice between the later reparations scheme or no scheme they would choose no scheme. finally, even if a specific slavery reparations scheme gained widespread approval, it would still face potential legal challenges. legal issues would include challenges brought by objecting payers, excluded beneficiaries, and objecting beneficiaries.77 depending on exactly how the slavery reparations scheme functioned, there might also be a significant issue as to its constitutionality. representative mike johnson (r-la) was booed during the 2019 house judiciary committee hearing on 76 only 58% of african americans support slavery reparations for those who can prove they are “descendants of slaves.” but 63% of african americans support slavery reparations for “african-americans who are u.s. citizens.” all other demographic variables in the survey (whites, latinos, males, females, young, old, educated, uneducated, high income, and low income) showed either the same or more preference for a slavery reparations scheme for descendants of slaves than one for all african american citizens. exclusive point taken-marist poll, supra note 41. 77 “objecting beneficiaries” would be “members of the beneficiary class who object to the government’s offer of reparations, perhaps because they find it stigmatizing or expressively demeaning.” posner & vermuele, supra note 13, at 711-12. 56 columbia journal of race and law [vol. 10:1 slavery reparations when he claimed that “any monetary reparations . . . would almost certainly be unconstitutional on their face.”78 johnson cited the supreme court case of city of richmond v. j.a. croson company79 as holding, in his words, “racial set asides and other entitlements are only constitutionally permissible to remedy the present effects of the government’s own widespread and recent discrimination. and the federal government is not allowed to provide race-based remedies that are ‘ageless in their reach into the past and timeless in their ability to affect the future.’”80 it is uncertain if this interpretation of croson would be adopted by the supreme court in ruling on a future slavery reparations scheme. in croson, the city of richmond’s plan for racial pre-ferences in awarding construction contracts was struck down because there was no evidence provided by the city of any specific acts of discrimination by richmond in the construction industry.81 rather, the city of richmond only provided stat-istics as to non-white participation in the construction industry. but in a potential slavery reparations case, it would be easier to identify past, discriminatory actions by the government.82 d. non-voluntary alternatives while this research focuses on slavery reparations as a voluntary government payment—which would require, at minimum, a modest level of public support—there are alternative 78 h.r. 40 hearing, supra note 2 (testimony of rep. mike johnson (rla) at 29:00). 79 488 u.s. 469 (1989). 80 h.r. 40 hearing, supra note 2 (testimony of rep. mike johnson (rla) at 30:10). 81 488 u.s. at 504-06. 82 another issue in croson relevant to a future decision on slavery reparations is whether the reparations are narrowly tailored. id. at 507. the court in croson pointed out that richmond did not appear to have considered any race-neutral alternatives. id. no. 10:1] an uphill battle for reparations 57 methods available for reparationists that would not require public support. for example, yale professor boris bittker, in his book, the case for black reparations, argues that reparations could be achieved by a damages claim under § 1983 of title 42.83 however, these lawsuits against government entit-ies face the daunting challenge of overcoming sovereign immunity.84 another option available to reparationists that circumvents the issue of public support is suing private companies. certain insurance companies, newspapers, banks, and railroads profited from the slave trade.85 some of these corporate entities still exist today and are viewed by courts as the same legal person from the 1800s.86 modern lawsuits seeking compensation from corporate involvement in the slave trade generally rely on tort and unjust enrichment arguments.87 while these lawsuits avoid the issue of sovereign immunity faced when suing a governmental entity, they face other, often fatal obstacles such as standing and statutes of limitations.88 83 harris, “reparations” as a dirty word: the norm against slavery reparations, supra note 49, at 434-35. 84 this is what stopped the 1994 case of cato v. united states, 70 f.3d 1103, 1111 (9th cir. 1995) from proceeding. in cato, plaintiffs sought $100,000,000 in compensation for a long list of harms from both slavery and subsequent discrimination from 1865 to present. id. at 1106. the district court dismissed the case and the ninth circuit court of appeals upheld the ruling. id. at 1111. the primary reason for the dismissal and the affirmation of the dismissal was the sovereign immunity of the government. id. “the court stated that the complaint ‘does not refer to any basis upon which the united states might have consented to suit.’” kaimipono david wenger, forty acres and a lawsuit: legal claims for reparations, in race, ethnicity and law 79, 81 (mathieu deflem ed., 2017). 85 wenger, supra note 82, at 81. 86 id. 87 id. at 81-82. 88 id. at 82. 58 columbia journal of race and law [vol. 10:1 however, stating that these examples do not require public support is somewhat misleading, as public support is relevant to the ultimate success or failure of these judicial alternatives to reparations legislation. while the judicial branch is certainly more insulated from public opinion than the legislative and executive branches, it is not immune to the effects of public opinion. benjamin cardozo explained that “[t]he great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.”89 experts have also commented on how justices consider popular support for their decisions. “with little formal institutional capability to enforce the court’s decisions and to compel the elected branches or the public to respect its judgments, justices must often act strategically in their opinion writing, adjusting to shifts in the public mood in order to ensure the efficacy of their decisions . . . .”90 e. future research the results of this study open the door for a number of similar, future studies. alternative prompts could be tested such as the following: good investment: “i support reparations for african americans in the form of a cash payment by the government. the con-sequences of racial unrest in america are very costly. implementing a reparations program is not only the right thing to do but would also be a cost-effective investment in our country’s future.” 89 benjamin n. cardozo, the nature of the judicial process 168 (1921). legal activists realize how public opinion can affect justices’ decisions. one example is how the legal team arguing for same-sex marriage in 2013 actively pursued a national pr campaign aimed at influencing the court’s outcome. jo becker, forcing the spring 316, 344 (2014). 90 christopher j. casillas, peter k. enns & patrick c. wohlfarth, how public opinion constrains the u.s. supreme court, 55 am. j. pol. sci. 74, 75 (2011). no. 10:1] an uphill battle for reparations 59 need to move on: “i support reparations for african americans in the form of a cash payment by the government because we, as a society, need to acknowledge the history of slavery in order to move beyond it. and the only way to do that is to right the wrongs of the past.” comparatively small amount: “i support reparations for african americans in the form of a cash payment by the government. every year we give out almost $50 billion in foreign aid. for just one year we should keep that money here in america and distribute it as slavery reparations.” additionally, longer prompts that combine multiple approaches could be tested. for example, a prompt that combines both pre-cedent and empathy (the two most effective prompts in this study) might produce a synergistic affect resulting in even higher levels of support for slavery reparations. a similarly structured study that instead provided antireparation prompts would also provide valuable information in the form of which anti-reparation arguments are most effective. the results could then be utilized to determine the efficacy of prompts that attempt to preemptively address popular objections to slavery reparations. the following are potential examples: culpability objection: “i support reparations for african americans in the form of a cash payment by the government. it’s not an issue of the harm that you and i have caused. rather, it’s about what the government did. for example, if a corp-oration harmed people in the past, i don’t think they should be allowed to avoid responsibility just because the employees and stockholders today are not the same as the employees and stockholders back then. the business entity is obligated to make things right just like our government is.” statute of limitations objection: “i support reparations for african americans in the form of a cash payment by the government. while it’s true that slavery happened a long time ago, i don’t think the government should get off the hook just because it was able to delay its responsibilities this long. if someone harmed you, then actively kept you from seeking restitution for years, and then told you to drop the issue because the harm was from a long 60 columbia journal of race and law [vol. 10:1 time ago, i doubt you would be okay with that. let’s not reward the government for delaying justice.” perhaps these prompts would be counterproductive and only serve to inform the participant of objections that would have otherwise gone unnoticed. either way, the information gained by the results of such a study would be a valuable tool in the quest to effectively advocate for slavery reparations. as discussed earlier, conservatives and liberals reacted differently to the prompts. conservatives were not only less likely to support slavery reparations before reading the prompt but were also less likely to increase support after reading the prompt. future research should analyze how prompts targeting specific demographics such as conservatives could improve outcomes. examples of prompts targeting conservatives could be: freedom: “when governments deprive people of their freedoms and liberties the outcome is always devastating. and there is no greater deprivation of freedom and liberty than slavery. that’s why i support slavery reparations in the form of a cash payment. it sends a powerful message to washington that the tyrannical abuse of government power will not be tolerated.” family: “a strong family unit is one of the most important things in life. there’s nothing more harmful to the family structure than the institution of slavery, and the effects are still apparent today. that’s why i support slavery reparations in the form of a cash payment.” religion: “the bible tells us that all humans are made in the image of god and that ‘when justice is done, it brings joy to the righteous.’ that’s why, as a christian, i support slavery reparations in the form of a cash payment.” the effect of how the anti-reparations norm leads to disproportionately controversial advocates for the cause should be analyzed in future research.91 prompts with the same language could be attributed to different speakers (one mainstream and one 91 see supra section iii a. anti-reparations norm. no. 10:1] an uphill battle for reparations 61 controversial). the responses from participants would then be used to measure how relevant this effect is. iv. conclusion the modern resurgence in advocacy for slavery reparations should be met with cautious optimism by reparationists. there is still a long way to go in persuading the average american, and many components combine to increase the challenge. the findings discussed in this article provide some guidance for the ways in which discourse and rhetoric impact average americans, and therefore how to pragmatically and purposefully deploy such strategies for persuasion. further, this study provides a framework for additional and more comprehensive analyses of related issues including the consequences of integrating proand antireparations rhetoric, the magnitude and precise effect of the antireparations norm, and how various demographic groups are impacted by particular rhetorical approaches. 62 columbia journal of race and law [vol. 10:1 v. appendix a: slavery reparations positions for the leading democratic 2020 presidential candidates.92 a. support for h.r. 40: amy klobuchar93 andrew yang94 beto o’rourke95 bill deblasio96 cory booker97 elizabeth warren98 92 the leading twenty candidates as determined by the twenty selected to participate in the first round of the 2020 nbc presidential debates. dartunorro clark, nbc announces lineup of democrats for each night of first 2020 debate, nbc news (june 14, 2019, 12:36 pm), https://www. nbcnews.com/politics/2020-election/nbc-announceslineup-democrats-each-two-nights-first-2020-debate-n1017676. 93 bruce c.t. wright, where all the presidential candidates stand on reparations, in their own words, news one (june 19, 2019, 10:20 am), https://newsone.com/playlist/2020-presidential-candidatesrepara tions/item/3. 94 the breakfast club, andrew yang on reparations – breakfast club am, youtube (mar. 8, 2019), https://www.youtube.com/watch?v= lhx9agoawpu. 95 nguyen, supra note 9. 96 julia marsh, de blasio: us needs a program for ‘actual redistribution’ of wealth, n.y. post (apr. 7, 2019, 12:04 pm) https://nypost.com/2019 /04/07/ de-blasio-us-needs-a-program-foractual-redistribution-of-wealth/. 97 nguyen, supra note 9. 98 newport, supra note 10. no. 10:1] an uphill battle for reparations 63 eric swalwell99 john delaney100 john hickenlooper101 julian castro102 kamala harris103 kristen gillibrand104 marianne williamson105 pete buttigieg106 tim ryan107 tulsi gabbard108 b. unknown position: bernie sanders109 99 he is a co-sponsor of h. r. 40 “commission to study and develop reparation proposals for african-americans act.” goodenough, supra note 30. 100 rebekah barber, where the 2020 democratic presidential candidates stand on reparations, facing south (apr. 11, 2019), https://www.facingsouth.org/2019/04/where-2020-democratic presidential-candidates-stand-reparations. 101 wright, supra note 93. 102 id. 103 id. 104 id. 105 id. 106 id. 107 barber, supra note 100. 108 nguyen, supra note 9. 109 it is unclear what bernie sander’s position is today. he has stated that he supports h.r. 40 “commission to study and develop reparation proposals for african-americans act.” but he has also said that, “[t]here are better ways to [address racial inequality] than just writing out a check.” nguyen, supra note 9. 64 columbia journal of race and law [vol. 10:1 jay inslee110 joe biden111 michael bennet112 110 when asked about supporting reparations he responded only by expressing support for race-neutral poverty and education programs. judy woodruff, gov. jay inslee on climate change, tax policy and reparations, pbs (mar. 20, 2019, 6:25 pm), https://www.pbs.org/ newshour/show/gov-jay-inslee-on-climate-change-tax-policy-andreparations. 111 it is unclear what joe biden’s position is today. in 1975, biden responded to a question about slavery reparations by saying, “i’ll be damned if i feel responsible to pay for what happened 300 years ago.” jessica chasmar, joe biden’s 1975 comments slamming slavery reparations, school busing resurfaced by wapo, wash. times (mar. 8, 2019), https://www.washington times.com/news/2019/mar/8/joebidens-1975-comments-slamming-slavery-reparati/. 112 i was unable to locate any statement by michael bennet on his slavery reparations position. he is the only sitting lawmaker in the presidential debate that is not listed as a co-sponsor of h.r. 40 “commission to study and develop reparation proposals for africanamericans act.” goodenough, supra note 30. 2014 columbia journal of race and law 1 the rise of speed deportation and the role of discretion shoba sivaprasad wadhia* in 2013, the majority of people deported never saw a courtroom or immigration judge. instead, they were quickly removed by the department of homeland security via one of several procedures collectively referred to as “speed deportation.” the policy goals of speed deportation are economic; these processes save government resources from being spent on procedural safeguards such as a trial attorney, immigration judge, and a fundamentally fair hearing. higher deportation numbers may also benefit the image the government seeks to portray to policymakers who support amplified immigration enforcement. however, the human consequences of speed deportation are significant and can result in the ejection of people who would otherwise qualify for relief before an immigration judge or otherwise present strong equities like family ties, long-term residence, and steady employment in the united states. moreover, the risk that the government may wrongly classify a person as a candidate for speed deportation is more than a remote possibility. this article examines deportations resulting from the expedited removal, administrative removal, and reinstatement of removal orders programs and the extent to which the government has discretion to give individuals who present compelling equities, including eligibility for relief, a more complete court proceeding before an immigration judge. this article ends with recommendations the department of homeland security can take to provide a "day in court" for such individuals. i. introduction……………………………………………………………….. 2 ii. understanding speed deportation…………………………………….. 6 a. what is speed deportation?.………………………………………… 6 b. procedural requirements and speed deportation…………………. 7 1. reinstatement of removal…………………………………... 7 2. administrative removal……………………………………...9 3. expedited removal………………………………………….. 9 c. can those subject to speed deportation seek a remedy?.............. 10 * samuel weiss faculty scholar, clinical professor of law and director, center for immigrants’ rights, pennsylvania state university dickinson school of law. the author deeply appreciates the feedback received from scholars at penn state law’s faculty workshop (2014); association of american law schools conference on clinical education (2014); immigration law teachers workshop (2014) and the following individuals: trina realmuto, jennifer lee koh, margaret taylor, and holly cooper. the author is grateful to the editors at columbia journal of race and law for their editorial work and lauren hartley (dsl ’15) for her research assistance. finally, the author thanks penn state law for supporting her scholarship. 2 the rise of speed deportation and the role of discretion vol. 5.1 iii. the policy and politics of speed deportation……………………….. 14 a. personal interests affected by deportation………………………… 14 b. risk of error and value of additional safeguards…………………. 15 1. agency expertise…………………………………………….. 15 c. the government’s interest………………………………………….. 18 1. improving efficiency…………………………………………18 2. enforcement mission………………………………………... 20 iv. the relationship between prosecutorial discretion and speed deportation……….................................................................................... 22 v. conclusion………………………………………………………………….. 25 i. introduction in 2013, the majority of people deported never saw a courtroom or immigration judge. instead, the department of homeland security quickly removed them via programs termed “expedited removals”,1 “administrative removals”,2 and “reinstatement of removal orders.”3 these programs were created by congress and permit the agency to remove or deport a person from the united states without undertaking the formalized and exhaustive removal hearing.4 while expedited removals, administrative removals and reinstatements each apply to different sets of individuals, their common feature is a limited set of procedural protections leading to speedy removals.5 by providing comparatively fewer procedural safeguards—such as a trial attorney or an immigration judge—speed deportations promote efficient use of scarce government resources. higher deportation numbers may also benefit the image the government 1 immigration and nationality act (hereinafter, “ina”) § 235, 8 u.s.c. § 1225 (2014); 8 c.f.r. § 235. 2 ina § 238(b), 8 u.s.c. § 1228 (2013); 8 c.f.r. § 238.1. 3 ina § 241(a)(5), 8 u.s.c. § 1231(a)(5) (2014); see 8 c.f.r. § 241.8. 4 ina § 240, 8 u.s.c. § 1229 (2014) (spelling out the statutory framework for a removal hearing and various “rights” and requirements that attach to such a hearing). throughout this article, i will use “removal proceeding”, “removal hearing”, and “court hearing” interchangeably. 5 throughout this article, the phrases “speed removal” and “speed deportation” will be used interchangeably to identify one or more of the following programs: administrative removal, reinstatement of removal, and expedited removal. stipulated removal orders, another program aimed at accelerating the removal process, are not reflected in this article. stipulated removal orders are authorized in the ina’s command that “[t]he attorney general shall provide by regulation for the entry by an immigration judge of an order of removal stipulated to by the alien (or the alien’s representative) and the service. a stipulated order shall constitute a conclusive determination of the alien’s removability from the united states.” ina § 240(d), 8 u.s.c. § 1229(d) (2014). one reason i do not include stipulated removal orders is that unlike the speed removal programs identified above, immigration judges participate in the stipulated removal program and are required to memorialize the removal order. for a thoughtful analysis focused on the stipulated removal order program, see jennifer lee koh, waiving due process (goodbye): stipulated orders of removal and the crisis in immigration adjudication, 91 n.c.l. rev. 475 (2013). 2014 columbia journal of race and law 3 seeks to portray to policymakers who support stricter immigration enforcement. however, the human consequences of speed deportation are significant and can result in the ejection of people who would otherwise qualify for relief before an immigration judge or who present strong equities like family ties, long-term residence, or steady employment in the united states. moreover, the risk that the government may wrongly classify a person as a candidate for speed deportation is more than a remote possibility. this article examines deportations resulting from the expedited removal, administrative removal, and reinstatement of removal orders programs. it also examines the extent to which the government has discretion to give individuals who present compelling equities, including eligibility for relief, a more complete court proceeding before an immigration judge. in the last several years, the vast majority of removals have been in the form of speed deportation, but little scholarship has explored the legitimacy of these programs.6 the data on removals from recent years suggests that a fraction of people are placed in removal proceedings and heard by an immigration judge before a removal order is entered. of the approximately 438,000 non-citizens deported in 2013, 193,032 were removed through expedited removal and 170,247 were subject to a reinstated final order.7 thus, 82.8% of all removals in 2013 were comprised of expedited removals and reinstatements. by contrast, at most 75,142 or 17% of those deported were removed following a removal order issued by an immigration judge within the executive office for immigration review (“eoir”).8 data from 2013 reveals a similar proportion9: 438,421 noncitizens were removed from the united states, of which 193,032 or 44% were removed through expedited removal orders and 170,247 or 38.8% were removed through reinstatements.10 likewise, 9,217 of these removals were enacted through administrative removal orders.11 these numbers reveal the extent to which dhs removed individuals without a day in court. the proportions of speed removals in 2012 and 2013 in contrast to removal orders that followed a court hearing are striking and illustrate how greatly dhs relies on speed removal programs to carry out its mission to enforce the immigration laws.12 cumulatively, the numbers reveal that for the last several years, more than half of the total population removed from the united states has bypassed a courtroom through a speed deportation program. accordingly, it would be imprecise to conclude that the number of speed removals in the last 6 the author acknowledges earlier work by jill family examining “diversions” from immigration removal proceedings and by jennifer lee koh examining “stipulated removal” orders that enable a removal without a hearing. see jill e. family, a broader view of the immigration adjudication problem, 23 geo. immigr. l. j. 595 (2009); koh, supra note 5. however, these works do not dissect the speed deportation programs that are the subject of this article. 7 john f. simanski, dhs office of immigration statistics, immigration enforcement actions: 2013 5, table 6, (sept. 2014), available at http://www.dhs.gov/sites/default/files/publications/ois_enforcement_ar_2013.pdf. 8 id. the number of removal orders issued by an immigration judge within eoir may in fact be lower than 75,142, as this data does not categorize administrative removal orders for 2013. this inquiry, however, is beyond the scope of this article. 9 id. 10 id. 11 email from john simanski, office of immigration statistics, dep’t. of homeland sec., to author (oct. 27, 2014, 9:11 est) (on file with author). 12 the statistics from earlier years also reveal that the majority of individuals removed from the united states underwent “speed deportation” through expedited removal or reinstatement, not administrative removal. for example, data from 2011 shows that “[r]einstatements of final orders accounted for 130,000, or 33 percent, of all removals. expedited removals accounted for 123,000, or 31 percent, of all removals.” data from 2010 shows that “[r]einstatements of final orders accounted for 131,000, or 34 percent, of all removals. expedited removals accounted for 111,000, or 29 percent, of all removals.” office of immigration statistics, policy directorate, annual report: immigration enforcement actions 1 (2010), available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement-ar-2010.pdf. 4 the rise of speed deportation and the role of discretion vol. 5.1 year served as a counterbalance to the growth in humanitarian programs like deferred action for childhood arrivals (“daca”),13 guidance documents on prosecutorial discretion,14 and other administrative programs designed to protect people with equities from deportation through non-enforcement programs. data from prior to 2009 reveals different trends in removals.15 for example, in 2001, 38,943 individuals were removed through reinstatement orders (compared to 149,000 in 2013).16 moreover, dhs published neither a definition for, nor data on, reinstatements from 2004-2008.17 this article focuses on the discretion held by the department of homeland security (“dhs”) to place noncitizens legally eligible for speed removal into a complete court proceeding (“removal proceedings”) before an immigration judge. “prosecutorial discretion” identifies the authority for dhs to decide whether and to what extent to enforce the immigration laws against a person or group of persons. my interest in exploring the growth and consequences of speed removal is tied not only to my intellectual journey into the role of prosecutorial discretion18 in immigration law but also to personal experience. in fall 2013, the clinic i direct at penn state law took on a pro bono case involving a man detained in york county prison who received an administrative removal order. consequently, he was stripped of the process and rights he might have otherwise been provided in a regular immigration court proceeding. our client had immediate family members who were united states citizens and, in our view, was wrongly classified by dhs as an aggravated felon. because his removal was predetermined by dhs through a speed deportation program, he was not afforded the opportunity to challenge his removability or apply for relief in removal proceedings. instead, our client was issued a removal order and placed into a narrow forum called “withholding only” proceedings, a forum described in greater detail below. 13 consideration of deferred action for childhood process, u.s. citizenship and immigration services, department of homeland security, http://www.uscis.gov/humanitarian/consideration-deferred-actionchildhood-arrivals-process (last visited march 10, 2014). 14 see memorandum from john morton, director, u.s. immigration & customs enforcement to ice employees (mar. 2, 2011) (available online at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf); see also memorandum from john morton, director, u.s. immigration & customs enforcement to ice employees (june 17, 2011) (available online at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf); see also shoba sivaprasad wadhia, reflections on prosecutorial discretion one year after the morton memo, lexisnexis immigration law blog (june 14, 2012, 4:05 pm), http://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-lawblog/archive/2012/06/21/reflections-on-prosecutorial-discretion-in-immigration-context-1-year-after-the-mortonmemo.aspx. 15 for example, data from 2004 indicates a reduction in expedited removals from the previous year. expedited removals represented 21% of all formal removals in 2004. mary dougherty et al., dhs office of immigration statistics, immigration enforcement actions: 2004 1 (2005), available at http://www.dhs.gov/xlibrary/assets/statistics/publications/annualreportenforcement2004.pdf. 16 see id. 17 see yearbook of immigration statistics, dep’t. of homeland sec., https://www.dhs.gov/yearbookimmigration-statistics (last visited mar. 30, 2014). 18 see, e.g., shoba sivaprasad wadhia, immigration remarks for the 10th annual wiley a. branton symposium, 57 how. l.j. 931 (2014); shoba sivaprasad wadhia, my great foia adventure and discoveries of deferred action cases at ice, 27 geo. immigr. l.j. 345 (2013); shoba sivaprasad wadhia, in defense of daca, deferred action, and the dream act, 91 tex. l. rev. 59 (2013); shoba sivaprasad wadhia, the immigration prosecutor and the judge: examining the role of the judiciary in prosecutorial discretion decisions, 16 harv. latino l. rev. 39 (2013); shoba sivaprasad wadhia, the role of prosecutorial discretion in immigration law, 9 conn. pub. int. l.j. 243 (2010); shoba sivaprasad wadhia, the morton memo and prosecutorial discretion: an overview (2011), available at http://www.immigrationpolicy.org/specialreports/morton-memo-and-prosecutorial-discretion-overview; shoba sivaprasad wadhia, reading the morton memo: federal priorities and prosecutorial discretion (2010), available at http://www.immigrationpolicy.org/special-reports/reading-morton-memo-federal-priorities-and-prosecutorialdiscretion. 2014 columbia journal of race and law 5 to facilitate the analysis of the programs analyzed for this article and how they interact with discretion generally, a short background of the history of u.s. immigration policy is in order. dhs is a cabinet-level agency that was created after the terrorist attacks of september 11, 2001.19 dhs is composed of multiple sections, three of which play a robust role in immigration: customs and border protection (“cbp”),20 immigration and customs enforcement (“ice”),21 and united states citizenship and immigration services (“uscis”).22 while both ice and cbp play a significant role in apprehending and processing noncitizens for removal,23 ice bears responsibility for executing removal orders. in this way, when ice apprehends, detains, and processes noncitizens for speed removal, it serves as the police, jailor, and judge.24 a second agency responsible for making decisions about deportation is the department of justice (“doj”). within doj is a unit called the eoir, which itself is comprised of more than 250 immigration judges and 59 immigration courts throughout the united states, as well as an administrative appellate division known as the board of immigration appeals (“bia”).25 while an immigration judge or bia member is not herself independent from the executive branch or elected for an indefinite period like an article iii judge,26 she functions like an administrative law judge and is bound by regulation to exercise independent judgment when conducting proceedings.27 in 2013, immigration judges handled 193,350 cases, 187,677 of which were removal proceedings.28 other case types heard by immigration judges include: deportation proceedings, exclusion proceedings, and review of negative, credible, or reasonable fear findings by the asylum officer, among other proceedings.29 individuals in removal proceedings enjoy 19 homeland security act of 2002, pub. l. no. 107-296, 116 stat. 2135 (2002). 20 about cbp, u.s. customs & border prot., http://www.cbp.gov/about/ (last visited mar. 10, 2014). 21 overview, u.s. immigration & customs enforcement, http://www.ice.gov/about/overview/ (last visited mar. 10, 2014). 22 about us, u.s. citizenship & immigration services, http://www.uscis.gov/aboutus (last visited mar. 10, 2014). 23 see, e.g., fy 2013 ice immigration removals, u.s. immigration & customs enforcement, https://www.ice.gov/removal-statistics/ (last visited mar. 10, 2014). 24 only in the administrative removal process does the legal framework call for the arresting officer to be different from the deciding officer. see ina § 238(b)(4)(f), 8 u.s.c. § 1228(b)(4)(f) (2013); 8 c.f.r. § 238.1 (defining “deciding service officer” as “a district director, chief patrol agent, or another immigration officer designated by a district director, chief patrol agent, the deputy executive associate commissioner for detention and removal, or the director of the office of juvenile affairs, so long as that person is not the same person as the issuing service officer.”). 25 about, office of the chief immigration judge, exec. office of immigration review, u.s. dep’t of justice, http://www.justice.gov/eoir/ocijinfo.htm (last visited mar. 10, 2014). 26 for a critique of the lack of independence of immigration judges and suggestions that the immigration system reform and use article iii judges see stephen h. legomsky, restructuring immigration adjudication, 59 duke l.j. 1635 (2010). 27 see, e.g., 8 c.f.r. § 1003.10(b). (“in conducting hearings under section 240 of the act and such other proceedings the attorney general may assign to them, immigration judges shall exercise the powers and duties delegated to them by the act and by the attorney general through regulation. in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the act and regulations that is appropriate and necessary for the disposition of such cases.”). likewise, since the immigration court system sits within doj, there is a level of independence it has from ice, which houses the attorneys responsible for defending the government in removal proceedings. but attorneys who represent the government in federal court proceedings at which noncitizens challenge final orders of removal are housed within doj in an office dubbed the office of immigration litigation (oil). see about, office of litigation, u.s. dep’t of justice, http://www.justice.gov/civil/office-immigration-litigation (last visited mar. 25, 2014). 28 u.s. dep’t of justice exec. office for immigration review, fy 2013 statistical yearbook b1 (2014), available at http://www.justice.gov/eoir/statspub/fy13syb.pdf. 29 id. as summarized by the eoir yearbook, “deportation case” refers to “[a] case type initiated when the former immigration and naturalization service [ins] filed an order to show cause with an immigration court before 6 the rise of speed deportation and the role of discretion vol. 5.1 fundamental protections. among the safeguards provided to such individuals are the right to counsel at no expense to the government, the right to examine evidence, the right to present evidence and witnesses, the right to cross-examine the government’s witnesses, the right to contest the allegations charged, the right to apply for relief from removal, and the right to file an administrative appeal from a negative decision by the immigration judge to the bia.30 individuals may be able to raise a due process challenge in removal proceedings in federal court.31 ii. understanding speed deportation a. what is speed deportation? for this article, “speed deportation” refers to three programs operated by the department of homeland security to process and remove noncitizens without a hearing before an immigration judge. these programs are creatures of congress and are authorized in three provisions of the immigration statute as: (1) expedited removal, (2) reinstatement, and (3) administrative removal. expedited removal applies to persons who arrive at a port-of-entry or within 100 miles of the border with fraudulent or insufficient documents.32 reinstatement applies to persons who “reenter” the united states without authorization after having departed the united states voluntarily or under a previous removal order. the order of removal is “reinstated” from the original date of the person’s original departure or removal order.33 administrative removal applies to noncitizens who are not permanent residents of the united states and april 1, 1997,” id. at 6; and “exclusion case” refers to “[a] case type involving a person who, before april 1, 1997, tried to enter the united states but was stopped at the port of entry because the former [ins] found the person to be inadmissible,” id. a full description of these proceedings here is limited because they are not a focus of this article. 30 ina § 240(b)(4), 8 u.s.c. § 1229(b)(4) (2014). 31 see, e.g., abdulai v. ashcroft, 239 f.3d 542, 549 (3d cir.2001) (“[a]liens facing removal are entitled to due process, which includes opportunity to make arguments on their own behalf”); see also leslie v. attorney gen. of u.s., 611 f.3d 171, 181 (3d cir. 2010) (“aliens in removal proceedings are entitled to fifth amendment due process protection, which guarantees them a fundamentally fair removal hearing.”). it should be pointed out that “regular” removal proceedings have been criticized by scholars and advocates for lacking the safeguards available to defendants in criminal proceedings, in part, because the former are considered “civil.” for a greater discussion on this topic, see juliet stumpf, the crimmigration crisis: immigrants, crime, and sovereign power, 56 am. u. l. rev. 367 (2006); stephen h. legomsky, the new path of immigration law: asymmetric incorporation of criminal justice norms, 64 wash. & lee l. rev. 469 (2007); peter l. markowitz, straddling the civil-criminal divide: a bifurcated approach to understanding the nature of immigration removal proceedings, 43 harv. c. r.-c. l. l. rev. 289 (2008). 32 see ina § 235(b)(1)(a)(i), 8 u.s.c. §1225(b)(1)(a)(i) (2013) (providing that “[i]f an immigration officer determines that an alien (other than an alien described in subparagraph (f)) who is arriving in the united states or is described in clause (iii) is inadmissible under section 212(a)(6)(c) or 212(a)(7), the officer shall order the alien removed from the united states without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution.”); 8 c.f.r. § 235.3. see also simanski, supra note 7, at 2 (defining “expedited removal” as “removal without a hearing before an immigration judge of an alien arriving in the united states who is inadmissible because the individual does not possess valid entry documents or is inadmissible for fraud or misrepresentation of material fact; or the removal of an alien who has not been admitted or paroled in the united states and who has not affirmatively shown to the satisfaction of an immigration officer, that the alien had been physically present in the united states for the immediately preceding 2-year period (ina § 235(b)(1)(a)).”). 33 see ina § 241(a)(5), 8 u.s.c. § 1231(a)(5) (2013) (providing that “[i]f the attorney general finds that an alien has reentered the united states illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this act, and the alien shall be removed under the prior order at any time after the reentry”); see also 8 c.f.r. § 241.8; simanski, supra note 7, at 2 (defining reinstatement of “final removal orders” as “[t]he removal of an alien on the reinstatement of a prior removal order, where the alien departed the united states under an order of removal and illegally re-entered the united states (ina § 241(a)(5)). the alien may be removed without a hearing before an immigration judge.”). http://www.leagle.com/get_cited/239%20f.3d%20542 2014 columbia journal of race and law 7 have been classified by dhs as convicted of an aggravated felony.34 one complication is defining “aggravated felony.” currently, the immigration code (hereinafter, “ina”) lists more than one dozen categories for aggravated felony35 including: theft offenses, crimes of violence, drug trafficking, murder, and fraud offenses involving at least a $10,000 loss to the victim.36 the next section discusses the procedural protections and substantive remedies that do attach to speed deportation. b. procedural requirements and speed deportation37 in theory, the procedural safeguards included in the statute and regulations for reinstatement of removal, expedited removal, and administrative removal contains more “process” than other deportation schemes such as the stipulated removal order program38 and those subject to in absentia orders of removal.39 moreover, the legal framework for speed deportation enables a party to challenge his speed removal in a federal court. the procedural safeguards associated with speed deportation are detailed in this section. practically speaking, however, noncitizens face significant hurdles, including the short period one has to challenge removal, and the inability to obtain evidence, understand the nature of the charges, or secure counsel. 1. reinstatement of removal under the reinstatement regulations, dhs is required to make the following findings: whether (1) the alien was subject to a prior order of removal, (2) the alien is the same person as the one named in the prior order, and (3) the alien unlawfully reentered the country.40 in making a determination about whether the individual has unlawfully entered, the regulations require that dhs “consider all relevant evidence, including statements made by the alien and any evidence in the alien's possession. the immigration officer shall attempt to verify an alien's claim, if any, that he or she was lawfully admitted, which shall include a check of service data systems available to the officer.”41 procedurally, the reinstatement of removal process 34 see ina § 238(b)(1)-(2), 8 u.s.c. § 1449(b)(1)-(2) (2013) (providing that “(1) the attorney general may, in the case of an alien described in paragraph (2), determine the deportability of such alien under section 237(a)(2)(a)(iii) (relating to conviction of an aggravated felony) and issue an order of removal pursuant to the procedures set forth in this subsection or section 240. (2) an alien is described in this paragraph if the alien(a) was not lawfully admitted for permanent residence at the time at which proceedings under this section commenced; or (b) had permanent resident status on a conditional basis (as described in section 216) at the time that proceedings under this section commenced.”); 8 c.f.r. § 238.1(b)(1); ina § 101(a)(43), 8 u.s.c. § 1101(a)(43) (2013). see also simanski, supra note 7, at 2 (defining “administrative removal” as “[t]he removal of an alien not admitted for permanent residence, or of an alien admitted for permanent residence on a conditional basis pursuant to section 216 of the ina, under a dhs order based on the determination that the individual has been convicted of an aggravated felony (ina § 238(b)(1)). the alien may be removed without a hearing before an immigration judge.”). 35 ina § 101(a)(43), 8 u.s.c. § 1101(a)(43) (2013). 36 see id. 37 outside the scope of this article but worthy of a mention is the extent to which a person can challenge a decision by dhs to place a person in speed removal under administrative law. possibly, the decision made by dhs to place a person in administrative removal or reinstatement is an arbitrary one in which the officer can either a) place the same individual in a full removal proceeding, at which she can apply for any form of relief from removal before an immigration judge, or b) issue an administrative or reinstatement of removal order at which the best she can hope for if she has passed her “reasonable fear” interview before an asylum officer is mandatory withholding or convention against torture protection. this argument is propelled by the fact that neither the statute nor the regulations contain guidance on how, or the circumstances under which, dhs should elect between placing a person in speed deportation or issuing and filing an nta to commence removal proceedings. 38 ina § 240(d), 8 u.s.c. § 1229a(d) (2013); 8 c.f.r. § 1003.25(b); see also, koh, supra note 5. 39 ina § 240(b)(5), 8 u.s.c. § 1229a(b)(5) (2013); 8 c.f.r. § 1003.26 (defining in absentia hearings). 40 see 8 c.f.r. § 241.8(a)(1)-(3). 41 8 c.f.r. § 241.8(a)(3). 8 the rise of speed deportation and the role of discretion vol. 5.1 commences when a dhs officer provides the noncitizen with a written notice of his determination.42 the regulations require dhs to provide a noncitizen with written notice of its decision if it determines that the noncitizen is subject to reinstatement. dhs must also advise the noncitizen about his ability to contest a reinstatement finding and reconsider his decision if a challenge is made.43 additionally, the regulations require that individuals who express fear of persecution upon return be referred to an asylum officer for additional screening.44 furthermore, another section of the regulations, outside of those that govern reinstatement of removal, clarifies that any person who is subject to an “examination” (which would include reinstatement of removal) has a right to counsel.45 while the regulations that govern reinstatement cases are seemingly long, the actual amount of time needed for removal is sometimes short. professor lee j. terán has noted, “[in] most cases, particularly involving mexicans arrested near the u.s./mexico border, the process of reinstatement of removal can be completed in a matter of hours.”46 though the regulations provide an internal procedure for challenging speed deportation, a noncitizen’s inability to appeal a removal order to a neutral third party (an immigration judge or bia) is troubling.47 individuals who receive a reinstatement order may challenge its legality in a federal court of appeals through a legal vehicle called a “petition for review.” the statutory language that governs judicial review states that a “petition for review” is the exclusive means of review for final orders of removal.48 a petition for review must be filed within 30 days after a reinstatement of removal order becomes final. under the statute, a petition for review “shall be filed with the court of appeals of the judicial circuit in which the immigration judge completed the proceedings.”49 this creates ambiguity for people in reinstatement because those orders are unilaterally issued by dhs. therefore, reinstatement orders do not involve immigration judges unless the person is in reasonable fear proceedings, which as detailed in the following section, are triggered only after a person has been found to have a “reasonable fear” of persecution or torture. moreover, even the order underlying a reinstatement order may have been issued by dhs rather than by an immigration judge. some federal courts have rejected procedural due process challenges to reinstatement of removal orders.50 while it may be true that judicial review is available for those who wish to challenge a final order of removal following a reinstatement of removal order, in reality the statutory limitations and practical impediments to filing a petition to review in a circuit court make such review difficult. for example, the person may be unfamiliar with his options for federal court review before he is deported because he lacks counsel, information, or the will to remain in detention to fight his case. moreover, many of the forms associated with speed deportation are in english and also lack information about the availability of judicial review. lastly, filing a petition for review does not automatically “stay” a person’s deportation, so dhs can execute a removal order notwithstanding a timely filed petition for review. 42 8 c.f.r. § 241.8(b). 43 id. 44 8 c.f.r. § 241.8(e). 45 8 c.f.r. § 292.5(b). 46 lee. j. terán, mexican children of u.s. citizens: “vignes prin” and other tales of challenges to asserting acquired u.s. citizenship, 14 scholar 583, 661 (2012). in 2013, 75% of all reinstatements were applied to nationals of mexico. see simanski, supra note 7. 47 see, e.g., ina § 241(a)(5), 8 u.s.c. § 1231(a)(5) (2013). 48 ina § 242(a)(5), 8 u.s.c. § 1252(a)(5) (2013). 49 id. 50 see, e.g., morales-izquierdo v. gonzales, 486 f.3d 484, 496 (9th cir. 2007) (“we are satisfied, moreover, that the [reinstatement] regulation provides sufficient procedural safeguards to withstand a facial challenge for patent procedural insufficiency.”). 2014 columbia journal of race and law 9 2. administrative removal the statutory language that governs administrative removal requires dhs to provide an individual with reasonable notice of the charges, notice of his right to be represented by counsel at no expense to the government, the right to inspect, examine and rebut evidence, and service of the record in person or by mail, among other requirements.51 the regulations for administrative removal proceedings also contain important requirements. administrative removal proceedings commence when a noncitizen is served with a charging document called the “notice of intent to issue a final administrative removal order.”52 this notice includes information about the grounds for removal, the ability for a noncitizen to seek counsel at no expense to the government, the opportunity to apply for withholding of removal if he fears persecution or torture in his country of removal, and the ability to challenge his 238(b) classification.53 this notice must also be accompanied by a list of free local legal services. in the absence of a challenge by the noncitizen, or if dhs finds that the noncitizen’s rebuttal lacks a genuine issue affecting its findings of removability, the removal order is executed within 14 days unless the 14 day period is waived.54 likewise, administrative removal orders require a supervisor to finalize the order.55 if dhs ultimately finds that a noncitizen is not properly subject to administrative removal, an officer can terminate the administrative removal proceedings and place the individual in “regular” removal proceedings by issuing a notice to appear.56 dhs is required to refer individuals to an asylum officer for additional screening if such individuals request to apply for protection under withholding of removal.57 like with reinstatement, individuals who face an administrative removal order may file a “petition for review” within 30 days after an administrative removal order becomes final. notably, judicial review is specifically mentioned in the statutory provision that governs administrative removal. specifically, the statute requires a record be “maintained for judicial review.”58 with respect to those otherwise precluded from seeking judicial review because of a statutory bar (such as a person found removable because of an aggravated felony), the immigration statute preserves jurisdiction for claims involving legal questions and constitutional claims.59 nevertheless, the practical impediments faced by those in administrative removal are similar to the reinstatement context insofar as they may lack the information about judicial review. also, since the timeline for administrative removal is a short one (14 days), the likelihood is very high that people are wrongfully removed before a court of law can conclude that a particular crime is not, in fact, an aggravated felony. 3. expedited removal in the expedited removal process, a dhs officer should advise the noncitizen of the charges against him in writing and provide him with an opportunity to respond.60 like with administrative removal, expedited removal orders are entered by a dhs examining officer after they have been approved by a 51 ina § 238(b)(4), 8 u.s.c. § 1228(b)(4) (2013). 52 8 c.f.r. § 238.1(b)(2). 53 8 c.f.r. § 238.1(b). 54 8 c.f.r. § 238.1(d), (f). 55 8 c.f.r. § 238.1(a), (d). 56 8 c.f.r. § 238.1(d)(2)(iii). 57 8 c.f.r. § 238.1(f). 58 ina § 238(b)(4)(e), 8 u.s.c. § 1228(b)(4)(e) (2013). 59 ina § 242(a)(2)(d), 8 u.s.c. § 1252(a)(2)(d) (2013). 60 8 c.f.r. § 235.3(b). 10 the rise of speed deportation and the role of discretion vol. 5.1 supervisor.61 if a noncitizen who is subject to expedited removal indicates a fear of return to his home country, then dhs shall record this information and provide the noncitizen with a written description of the “credible fear” interview process, notice of the right to consult with others before the interview, and other information.62 verified lawful permanent residents, refugees, asylees, or united states citizens, may not be removed pursuant to expedited removal. the regulations contain a narrow procedure for handling related claims.63 for example, when someone in expedited removal claims to be a united states citizen, the claim must be heard by an immigration judge in a proceeding called “claimed status review.”64 in expedited removal cases, judicial review is limited to habeas corpus challenges based on status claims, such as whether the individual is a citizen, lawful permanent resident, asylee, or refugee and whether the person was ordered removed.65 c. can those subject to speed deportation seek a remedy? importantly, a fraction of individuals subject to expedited removal, administrative removal, or reinstatement of removal may have the opportunity to apply for protection from harm before an immigration court. this outcome is limited, however, to those who are able to convince an asylum officer that their fear of persecution or torture is “reasonable” if the person is subject to reinstatement or administrative removal or “credible” if the person is subject to expedited removal.66 if an asylum officer within uscis concludes that an arriving asylum seeker subject to expedited removal has a “credible fear” of persecution or torture in her home country, then she will fill out the requisite worksheet and file the necessary paperwork with the immigration court to initiate a regular removal hearing at which she can apply for asylum, withholding of removal and/or protection under the convention against torture (“cat”) before an immigration judge.67 individuals who pass their credible fear interview are served with a notice to appear (“nta”) and placed into formal removal proceedings once the nta is filed with the immigration court.68 in this way, asylum seekers who ordinarily may have been subject to expedited 61 8 c.f.r. § 235.3(b)(7). 62 8 c.f.r. § 235.3(b)(4). 63 8 c.f.r. § 235.3(b)(5). 64 id. 65 see, e.g., smith v. u.s. customs & border prot., 741 f.3d 1016 (9th cir. 2014). 66 see 8 c.f.r. § 238.1(f)(3) (“withholding of removal. if the alien has requested withholding of removal under § 208.16 of this chapter, the deciding officer shall, upon issuance of a final administrative removal order, immediately refer the alien's case to an asylum officer to conduct a reasonable fear determination in accordance with § 208.31 of this chapter.”); 8 c.f.r. § 241.8(e) (“exception for withholding of removal. if an alien whose prior order of removal has been reinstated under this section expresses a fear of returning to the country designated in that order, the alien shall be immediately referred to an asylum officer for an interview to determine whether the alien has a reasonable fear of persecution or torture pursuant to § 208.31 of this chapter.”); 8 c.f.r. § 235.3(b)(4) (“claim of asylum or fear of persecution or torture. if an alien subject to the expedited removal provisions indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country, the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer in accordance with 8 cfr 208.30. the examining immigration officer shall record sufficient information in the sworn statement to establish and record that the alien has indicated such intention, fear, or concern, and to establish the alien's inadmissibility.”) 67 ina§ 235(b)(1)(b)(v); 8 u.s.c. § 1225(b)(1)(b)(v) (2014) (“credible fear of persecution defined: for purposes of this subparagraph, the term ‘credible fear of persecution’ means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum . . . . ”); 8 c.f.r. § 235.6 (“referral to immigration judge”). 68 see, e.g., 8 c.f.r. § 235.6(a)(1)(ii) (specifying that an immigration officer or asylum officer will sign and deliver a form i-862 to an alien “if an asylum officer determines that an alien in expedited removal proceedings has a credible fear of persecution or torture and refers the case to the immigration judge for consideration of the application for asylum.”); 8 c.f.r § 208.30(f) (“procedures for a positive credible fear finding. if an alien, other than an alien stowaway, is 2014 columbia journal of race and law 11 removal are instead placed into standard court proceedings accompanied with the variety of procedural safeguards described earlier. persons subject to administrative removal or reinstatement who indicate a fear of persecution or torture in their home country must be given a “reasonable fear”69 interview before an asylum officer, and, if successful, are placed in a limited proceeding known as a “withholding-only” proceeding.70 during a “withholding-only” proceeding, a person may apply for relief through a traditional form of withholding of removal and protection under the cat. the governing statutes stipulate that individuals with a final administrative removal order or reinstatement are ineligible for any other kind of relief from removal.71 the agency has opined that, as a matter of law, the statutory prohibition on relief is consistent with the availability of withholding of removal or cat relief because “they are merely restrictions on the place to which an alien may be removed and do not constitute affirmative permission to remain in the united states.”72 the regulations further implement these statutory bars to relief by providing that individuals in withholding-only proceedings are precluded from applying for other forms of relief from removal that might ordinarily be available to someone in regular removal proceedings, such as adjustment of status, cancellation of removal, or asylum.73 traditional withholding of removal requires an individual to prove a clear probability of persecution by the government or an actor the government is unable or unwilling to control because of race, religion, nationality, political opinion, or membership in a particular social group.74 by contrast, the cat requires an individual to prove a likelihood of torture by the government or with the found to have a credible fear of persecution or torture, the asylum officer will so inform the alien and issue a form i862, notice to appear, for full consideration of the asylum and withholding of removal claim in proceedings under section 240 of the act.”). 69 8 c.f.r. § 208.31 (“reasonable fear of persecution or torture determinations involving aliens ordered removed under section 238(b) of the act and aliens whose removal is reinstated under section 241(a)(5) of the act. . . . the alien shall be determined to have a reasonable fear of persecution or torture if the alien establishes a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal. for purposes of the screening determination, the bars to eligibility for withholding of removal under section 241(b)(3)(b) of the act shall not be considered . . . . ”). the uscis website has a concise fact sheet on the reasonable fear screening process. see asylum, questions and answers: reasonable fear screening process, u.s. citizenship and immigration services, http://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-answers-reasonablefear-screenings (last updated june 18, 2013). 70 see generally 8 c.f.r. § 208.31 (“reasonable fear of persecution or torture determinations involving aliens ordered removed under section 238(b) of the act and aliens whose removal is reinstated under section 241(a)(5) of the act”); see also 8 c.f.r. § 208.31(c) (“the alien shall be determined to have a reasonable fear of persecution or torture if the alien establishes a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal.”). 71 see ina § 238(b)(5), 8 u.s.c. § 1228(b)(5) (2013) (“no alien described in this section shall be eligible for any relief from removal that the attorney general may grant in the attorney general's discretion.”); ina § 241(a)(5); 8 u.s.c. § 1231(a)(5) (2014) (“if the attorney general finds that an alien has reentered the united states illegally after having been removed . . . the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this act, and the alien shall be removed the prior order at any time after the reentry.”). 72 see memorandum from john torres, acting director for office of detention and removal operations of u.s. immigration and customs enforcement to field office directors, detention and deportation officer’s field manual update, chapter 1 (march 27, 2006) (on file with author). 73 see, e.g., 8 c.f.r. § 208.31(g)(1)(i) (“the immigration judge shall consider only the alien's application for withholding of removal under § 208.16 and shall determine whether the alien's removal to the country of removal must be withheld or deferred.”). 74 ina § 241(b)(3)(a), 8 u.s.c. § 1231(b)(3)(a) (2014); 8 c.f.r § 208.16 (2000). http://www.uscis.gov/ilink/docview/slb/html/slb/0-0-0-1/0-0-0-29/0-0-0-6156.html#0-0-0-252 http://www.uscis.gov/ilink/docview/slb/html/slb/0-0-0-1/0-0-0-29/0-0-0-5971.html#0-0-0-4653 http://www.uscis.gov/ilink/docview/slb/html/slb/0-0-0-1/0-0-0-29/0-0-0-6643.html#0-0-0-5165 http://www.uscis.gov/ilink/docview/slb/html/slb/0-0-0-1/0-0-0-11261/0-0-0-14927/0-0-0-15242.html#0-0-0-11365 12 the rise of speed deportation and the role of discretion vol. 5.1 acquiescence of the government.75 both forms of relief place the burden on an applicant to prove eligibility for relief and are adjudicated by an individual judge following an adversarial proceeding. like with a regular immigration court proceeding, individuals in withholding-only proceedings have the right to examine and rebut evidence offered by the government, and be represented by counsel at their own expense.76 it is plausible that congress removed the possibility for individuals subject to speed deportation programs to apply for additional relief under the theory that some people are less deserving of a full day in court. united states immigration law is comprised of staggered safeguards reflecting policy choices by congress about who is worthy of protection.77 while the legal framework that governs noncitizens subject to reinstatement or administrative removal suggests that noncitizens who have expressed a reasonable fear may only apply for withholding of removal and relief under the cat, there is a strong argument that such applicants can still apply for asylum. the asylum statute specifically affirms that “any alien . . . irrespective of such alien’s status, may apply for asylum.”78 thus, the plain text of the statute would make the limits discussed above immaterial because the statute is unambiguous that “any alien” has the right to apply for asylum. notably, the american immigration lawyers association (“aila”) and refugee rights litigants have argued, “the reinstatement regulations limiting protection from persecution to withholding of removal must be struck down . . . .”79 the impact of barring asylum in this way is significant and potentially contravenes the united states’ obligations under international law.80 one story featured by aila in a related amicus brief involved “mirabel” a woman from honduras who was ordered removed in 2001: mirabel returned to honduras where she became romantically involved with a man who became abusive after she moved in with him. he isolated and confined her to his home and raped her over and over again. he tied her up and permitted his friends to gang rape her. in one incident, after torturing her, he forced her to cook for his friends. when she did not perform to his liking, he broke a beer bottle, cut her, and beat her until she fell unconscious. after mirabel’s abuser left her for dead, she escaped to mexico. while there, mirabel bumped into one of her abuser’s friends who had raped her. he told mirabel that her former boyfriend was looking for her to finish the job of killing her. mirabel then sought refuge 75 8 c.f.r. § 208.17-18. 76 see 8 c.f.r. §§ 208.31(e), 208.16; see also exec. office for immigration review, immigration court practice manual 119, (2013), available at http://www.justice.gov/eoir/vll/ocijpracmanual/practice_manual_1-2714.pdf#page=119. 77 for a broader examination of other “diversions” in the immigration system, see jill e. family, a broader view of the immigration adjudication program, 23 geo. immigr. l.j. 595 (2009). for an analysis about narratives told about “good” immigrants versus “bad” immigrants, see elizabeth keyes, beyond saints and sinners: discretion and the need for new narratives in the u.s. immigration system, 26 geo. immigr. l.j. 207 (2012). 78 see ina § 208(a)(1), 8 u.s.c. § 1158(a)(1) (2014) (emphasis added). 79 brief of amicus for american immigration lawyers association, et al., at 6, maldonado-lopez v. holder (no. 12-72800), aila infonet doc. no. 13080204 (posted feb. 8, 2013) available at http://www.aila.org/content/default.aspx?docid=45288; see also fernandez-vargas v. gonzales, 548 u.s. 30, 35 n.4 (2006) (“notwithstanding the absolute terms in which the bar on relief is stated, even an alien subject to §241(a)(5) may seek withholding of removal under 8 u. s. c. § 1231(b)(3)(a) (2000 ed.) (noting that an alien may not be removed to country if “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion”), or under 8 c.f.r. §§ 241.8(e), 208.31 (raising the possibility of asylum to aliens whose removal order has been reinstated under ina §241(a)(5))”). 80 see ina § 241(b)(3), 8 u.s.c. § 1231(b)(3) (2014), which incorporates the international law principle of nonrefoulement articulated in the convention on the status of refugees. see convention relating to the status of refugees art. 33, july 8 1951, 189 u.n.t.s. 137. 2014 columbia journal of race and law 13 in the united states, where the government reinstated her prior removal order. although an asylum officer reached a positive “reasonable fear” determination, mirabel is now in “withholding only” proceedings in which she will not even be considered for asylum.81 although a full discussion about the differences between asylum, withholding of removal, and cat relief are beyond the scope of this article, it should be noted that a person granted asylum receives a more secure status, the ability to include their spouse and children as derivatives, and the possibility to eventually obtain lawful permanent residence (green card) and citizenship.82 none of these benefits are available to a person who is granted withholding of removal or cat. likewise, the bia has articulated that a grant of withholding of removal requires an explicit order of removal, further indicating that, as a legal matter, this form of protection operates as a restriction on where a person may be removed and not as permission to remain in the united states indefinitely.83 statistics from the eoir are not entirely clear about the number of regular removal proceedings that originated from the expedited removal process but reveal that immigration courts received 2,269 withholding-only84 proceedings in fiscal year 2013.85 again, these proceedings refer to those individuals who were found to have a “reasonable fear of persecution or torture” by the asylum officer or the immigration judge (following an appeal of a negative reasonable fear finding by the asylum officer) after an administrative removal order or reinstatement order. while withholding-only hearings make up only a small fraction of the overall caseload untaken by eoir each year, the growth of such hearings is notable. according to the eoir statistical yearbook for 2013, the immigration court received 240 withholding-only proceedings in 2009, 497 proceedings in 2010, 886 proceedings in 2011, 1,090 proceedings in 2012, and 2,269 proceedings in 2013.86 on the one hand, 81 brief of amicus for american immigration lawyers association, et al., supra note 79, at 1-2. 82 see u.s. dep’t of justice, exec. office of immigration review, factsheet: asylum and withholding of removal relief convention against torture protections, 6 (2009), available at http://www.justice.gov/eoir/press/09/asylumwithholdingcatprotections.pdf. 83 see matter of i-s& c-s-, 24 i. & n. dec. 432 (bia 2008) (“when an immigration judge issues a decision granting an alien’s application for withholding of removal under section 241(b)(3) of the immigration and nationality act, 8 u.s.c. § 1231(b)(3) (2000), without a grant of asylum, the decision must include an explicit order of removal.”); see also u.s. dep’t of justice exec. office of immigration review, eoir benchbook alert (2008), available at http://www.justice.gov/eoir/vll/benchbook/alerts/alert_wr.htm. 84 for statistical purposes, eoir considers “withholding only proceedings” as part of the overall “immigration matters” it handles in a given fiscal year. see, e.g., office of legislative and public affairs, fy2012 statistical yearbook, executive office of immigration review c2-c3 (2013), available at http://www.justice.gov/eoir/statspub/fy12syb.pdf. likewise, the eoir statistical yearbook for 2012 states “a withholding only hearing is initiated when the following conditions have been met:  a previous removal/deportation/exclusion order has been reinstated by dhs or the alien has been ordered removed (administratively) by dhs (based upon a conviction for an aggravated felony) and the alien expresses a fear of persecution or torture if returned to the country of removal and that claim is reviewed by an asylum officer, and  an asylum officer has concluded that the alien has a reasonable fear of persecution or torture or an immigration judge conducted a reasonable fear review proceeding and found that reasonable fear of persecution or torture exists, or  an alien who is an applicant for admission to guam or the commonwealth of the northern mariana islands (cnmi) under the guam-cnmi visa waiver program under section 212(i) of the immigration and nationality act or who was admitted to guam or the cnmi under the guam-cnmi visa waiver program and has violated their conditions of admission is subject to withholding only proceedings prior to january 1, 2015.” 85 u.s. dep’t of justice exec. office for immigration review, fy 2013 statistical yearbook b1 (2014), available at http://www.justice.gov/eoir/statspub/fy13syb.pdf. 86 id. 14 the rise of speed deportation and the role of discretion vol. 5.1 the growth in numbers may indicate that dhs is doing a better job at screening people subject to reinstatement or administrative removal who express a fear of persecution or torture, or that more people in these categories have facts that are more likely to lead to a reasonable fear finding. on the other hand, and more likely given the trend of increased speed deportations, the growth in withholding-only hearings may be tied to the growth in reinstatements and administrative removals by dhs. this growth in reinstatements and administrative removals may be associated with a change of policy, under which dhs will now divert into a speed removal program people who might have ordinarily been issued a notice to appear and placed in removal proceedings before an immigration judge. whether this increase in withholding-only hearings is unlawful may be hard to pin down as “arbitrary.” people with similar facts and backgrounds can just as easily be given a formal 240 removal hearing or instead, be placed in a truncated withholding-only proceeding after being ordered removed and then passing a reasonable fear interview. perhaps the growth reflects a policy choice by dhs to effectuate removals with more efficiency and reach a certain number of removals. the next section examines the policy and politics of these programs in more detail. iii. the policy and politics of speed deportation to examine the legitimacy of speed deportation programs as a policy matter, this section considers 1) the personal interest of the noncitizen subject to speed deportation; 2) the risk of error, and value of additional procedural safeguards; and 3) the government’s interest, including the fiscal and administrative burdens of more procedures.87 a. personal interests affected by deportation some might take a position that the personal interests are low in the case of a first-time visitor to the united states facing expedited removal. likewise, some may argue that individuals who enter the united states without inspection or after a previous removal (reinstatement) are not entitled to personal ties to the united states because they have violated the law.88 moreover, others may argue that since administrative removal is aimed at persons who are not lawful permanent residents of the united states and who have been found to have an aggravated felony conviction, the interest is low. but these positions are less attractive if a person is fleeing persecution or torture, entering the united states to reunite with a family member, or otherwise eligible for relief from removal. as a policy matter, my view is that personal interests should not be measured by a person’s manner of entry, immigration status, or even criminal history as the individual stakes of nonjudicial deportation are all too high. the human consequences of speed deportation cannot be underestimated. it can result in the forced expulsion of people who bear strong equities like tender age, community ties, intellectual promise, and family members who are united states citizens. the legal framework that governs speed removal does not contain exceptions for individuals who have other equities or even eligibility for a benefit like adjustment of status through marriage to a united states citizen or sponsorship by a united states employer. imagine the case of eduardo, an undocumented worker from chile who enters the united states as a student at university x, violates the term of his visa by working without authorization, and is convicted once for a misdemeanor crime that qualifies as an “aggravated felony.” thereafter, eduardo meets and falls in love with a friend from university x who was born in the united states and, together, they decide to marry in a church ceremony. eduardo is viewed as a caring father and husband and 87 this section loosely follows the due process balancing test/standard set up in matthew v. eldridge, 424 u.s. 319 (1976) for considering the policy and politics of speed deportation but it should be noted that the author does not intend to use mathews to question the constitutionality of speed deportation programs. 88 david a. martin, two cheers for expedited removal, 40 va. j. of int’l. l. 673, 690 (2000). 2014 columbia journal of race and law 15 volunteer in his community. under the immigration law, eduardo can be arrested and placed in “administrative removal” based on his criminal history and then removed within 14 days of the final removal order.89 the administrative removal scheme does not exempt people like eduardo who are married to a united states citizen or a father to a united states citizen. the troubling aspect of this statutory scheme is two-fold: it prevents eduardo from seeing an immigration judge or undergoing removal proceedings before he is removed, and it categorically bars him from any immigration relief for which he might otherwise qualify, such as adjustment of status. as was analyzed earlier in the context of the administrative removal statute, the reinstatement statute prevents individuals, thousands of whom may have no criminal history at all, from seeking relief before an immigration judge. the act of someone leaving the united states after a removal order and then coming back into the united states without admission might be grave enough to make the reinstatement sound reasonable. the challenge is that these same individuals may be otherwise law-abiding but still choose to enter unlawfully in order to reunite with their family, flee from persecution, leave a poverty state, or access medical care for a serious condition. individuals who bear these equities should have the opportunity to present them to an immigration judge—as opposed to a dhs officer—and apply for relief for which they are eligible (based on these equities) before deportation. b. risk of error and value of additional safeguards this section explores the possibility that dhs will erroneously place a person in a speed deportation program and the extent to which adding safeguards would reduce this error. these errors can take many forms. for example, if dhs mistakenly executes an expedited removal order to a lawful permanent resident or issues an administrative removal order to a noncitizen who was convicted of a crime that does not qualify as an aggravated felony. if there is a significant risk of error under the existing framework, the next question is whether additional procedural safeguards can prevent or minimize this risk. the existing statutory and regulatory framework arguably contains enough process to minimize the risk of error. if adding more procedure does not reduce the risk of erroneous deportation, there may be room to argue that speed deportation programs should be dissolved altogether.90 1. agency expertise related to the analysis about the possibility for mistakenly placing people in speed deportation is whether dhs has the proficiency to screen and determine that a person is legally subject to speed deportation. arguably, if dhs lacks the expertise to make determinations associated with expedited removal, reinstatement, or administrative removal, the risk of error is greater. to illustrate, dhs may issue an expedited removal order to any noncitizen who arrives without documentation or with false documentation if he or she expresses a fear of return based on persecution or torture.91 while officers of dhs are trained to assess verbal and behavioral cues that might indicate a person may fear harm in her home country, only a small percentage of individuals subject to expedited removal are referred to an asylum officer for a credible fear interview. according to dhs, “from fy 2000 through fy 2009, the annual percentage of individuals subject to expedited removal who expressed a fear of return ranged from 4-6%. 89 8 cfr § 1238.1(f)(1) (2003) (“upon the issuance of a final administrative removal order, the service shall issue a warrant of removal in accordance with §1241.2 of this chapter; such warrant shall be executed no sooner than 14 calendar days after the date the final administrative removal order is issued, unless the alien knowingly, voluntarily, and in writing waives the 14-day period.”). 90 on the other hand, one may argue that such programs need not be perfect to be rational and that mistakenly removing some people in order to operate a streamlined deportation program is a legitimate end. 91 see ina § 238(b), 8 u.s.c. § 1228(b) (2013). http://www.uscis.gov/ilink/docview/slb/html/slb/0-0-0-1/0-0-0-11261/0-0-0-37585/0-0-0-37624.html#0-0-0-21651 16 the rise of speed deportation and the role of discretion vol. 5.1 from fy 2010 through fy 2012, the annual percentage ranged from 7-9%.”92 the low rate of referrals may be tied to the actual number of arriving noncitizens who qualify for referral to an asylum officer for a credible fear interview. but a second possibility is that dhs is turning away legitimate asylum seekers because of a lack of information or expertise to assess the cues appropriate for such referral. one study from 2005 conducted by the united states commission for international religion freedom found that in “nearly 15 percent of the cases which study experts observed directly and in person, asylum seekers who expressed a fear of return were nevertheless removed without a referral to an asylum officer. of those cases, nearly half of the files indicated that the asylum seeker had not expressed any fear.”93 more recently, american immigration council published a report detailing the state of credible fear and asylum procedures, and reported, “we heard frequent complains that cbp officers often dissuade people from seeking asylum, sometimes berating and yelling at them. some advocates complained that clients were harassed, threatened with separation from their families or long detentions, or told that their fears did not amount to asylum claims.”94 according to one florida non-profit attorney featured in the council’s report, “cbp doesn’t do its job and ask the right questions about fear of return. people are removed under expedited removal and then come right back because they are afraid. then they are only eligible for a reasonable fear interview and withholding of removal and detained for a long time.”95 this anecdote sheds light not only on the possibility that cbp may erroneously deport noncitizens instead of making referrals to asylum officers for credible fear interviews, but also displays how the different speed deportation programs interact with one another. in the aforementioned example, individuals are initially issued an expedited removal order, and, upon return, may qualify only for a reasonable fear interview because they are then subject to a reinstated order. as a final illustration of public concern around the referral process, the american immigration lawyers association (aila) circulated a survey to its membership soliciting examples of “individuals who were apprehended by cbp after crossing into the u.s. and issued expedited removal orders without the opportunity for a credible fear interview when the individual clearly expressed fear to the officer or was not asked about a fear of return at all.”96 presumably, this survey suggests dissatisfaction with the quality of cbp’s screening process for genuine refugees who face expedited removal. there is less concrete evidence about the quality of dhs referrals of noncitizens reinstatement or administrative removal orders to an asylum officer after they express a fear of persecution or torture. part of the ambiguity is tied to the practical reality that many pro bono attorneys do not interface with this population until after they have passed their reasonable fear interviews.97 to offer a second example about the experience level of dhs officers who make removal decisions, the regulations that govern reinstatement of removal permit dhs to summarily remove “[a]n alien who illegally reenters the united states after having been removed, or having departed voluntarily, 92 asylum abuse: is it overwhelming our borders?: hearing before the h. comm. on the judiciary, 113th cong. 39 (written testimony of uscis deputy director scialabba, ice deputy director daniel ragsdale, cbp office of border patrol chief michael fisher). 93 united states comm’n on int’l religious freedom, expedited removal report card: 2 years later 4 (2007), available at http://www.uscirf.gov/sites/default/files/resources/stories/pdf/scorecard_final.pdf. 94 sara campos & joan friedland, mexican and central american asylum and credible fear claims: background and context 10 (may 21, 2014), available at http://www.americanimmigrationcouncil.org/sites/default/files/docs/asylum_and_credible_fear_claims_final.pdf. 95 id. at 10. 96 aila seeks examples of cbp denying individuals access to credible fear interviews, aila infonet, http://www.aila.org/content/default.aspx?docid=484114 (last visited may 16, 2014). 97 florence immigrant & refugee rights project, guide to credible & reasonable fear proceedings 5 (2013), available at http://www.firrp.org/media/cf-rf-guide-2013.pdf (noting that “[i]f you are waiting for a credible or reasonable fear interview you will probably not see the florence project until you pass and are waiting for your first hearing.”). 2014 columbia journal of race and law 17 while under an order . . . .”98 however, the question of whether an entry is “lawful” or whether the procedural safeguards spelled out in the regulations are being followed are legally complex and may indicate that trained judges are better suited to analyze each element of the reinstatement statute. in one case, cardova-soto v. holder, a federal judge found that a noncitizen who returned to the united states following a removal order as a backseat passenger in a taxi after presenting herself at the port-of-entry was still making an “illegal entry” for reinstatement purposes.99 cardova-soto entered the united states as an infant and eventually became a lawful permanent resident at the age of 13. she worked in fast food restaurants in order to support her family and eventually received a high school degree equivalent. because of her prior conviction for drug possession, however, she was placed in removal proceedings and ordered to be removed based on this activity through a stipulated order of removal. cardova-soto returned to the united states without authorization in order to reunite with her four united states citizen children and her husband, also a united states citizen.100 while the court ultimately found that reinstatement applied, it analyzed a body of case law before making a determination that the reinstatement statute could be applied to a procedurally regular entry.101 as a third example, errors can take place during the administrative removal process. to recap, administrative removal applies to individuals who are neither citizens nor green card holders and have been convicted of an aggravated felony.102 in other words, administrative removal applies to someone who is in the united states with a temporary or undocumented status and has a criminal history. while the aggravated felony list is a broad one, the analysis is complicated by the fact that state, federal, and foreign offenses may qualify as “aggravated felonies.” importantly, an officer or judge cannot make a decision about whether a criminal conviction qualifies for deportation without analyzing the statute under which the noncitizen was convicted. under the “categorical approach,” adjudicators are to look “not to the facts of the particular prior case,” but instead to whether “the state statute defining the crime of conviction” categorically fits within the “generic” federal definition of a corresponding aggravated felony.103 even immigration judges, bia members, and federal court judges reach legally questionable conclusions that in several cases have resulted in a reversal by the united states supreme court.104 for example, in moncrieffe v. holder, the supreme court reversed the fifth circuit and the bia and found that a conviction for marijuana possession with intent to distribute under a georgia statute may not be deemed a drug trafficking aggravated felony for immigration purposes.105 in reaching this conclusion, the court compared the elements of the georgia statute with the controlled substance act, the federal statute referenced in the aggravated felony definition for drug trafficking. because the georgia statute is broad 98 see 8 c.f.r. § 241.8(a). 99 732 f.3d 789 (7th cir. 2013). 100 see id. 101 id. for an analysis of the cordova-soto case and how the reinstatement of removal order stemmed from a stipulated removal order, see jennifer lee koh, rethinking removability, 64 fla. l. rev. 1803, 1864-18667 (2014). 102 see ina § 238(b)(1), 8 u.s.c. § 1449(b)(1) (1952). 103 taylor v. united states, 495 u.s. 575, 599-600 (1990); descamps v. united states, 133 s. ct. 2276 (2013). 104 see, e.g., moncrieffe v. holder, 133 s. ct. 1678 (2013) (holding that possession with intent to distribute was not necessarily a felony because a conviction under state law did not consider possible exceptions for small amounts of marijuana possessed without remuneration); carachuri-rosendo v. holder, 550 u.s. 563 (2010) (holding that a second conviction for simple possession could not be an aggravated felony because the noncitizen was charged with a misdemeanor under state law and it was inappropriate for immigration courts to enhance the conviction ex post facto); watson v. u.s., 552 u.s. 74 (2007) (holding that under a plain english reading of the law, a noncitizen who traded drugs for a gun could not be convicted of a felony for “using” a gun during a drug trafficking crime); lopez v. gonzalez, 549 u.s. 47 (2006) (determining that a drug offense that was a felony under state law but only a misdemeanor under federal law was not an aggravated felony); leocal v. ashcroft, 543 u.s. 1 (2004) (finding that because state law classified duis as having a mens rea of negligence or less, it was inappropriate for the lower court to classify those duis as “crimes of violence”, and thereby find the noncitizen guilty of an aggravated felony). 105 moncrieffe, 133 s. ct. 1678. 18 the rise of speed deportation and the role of discretion vol. 5.1 enough to punish conduct involving a small amount of marijuana for no remuneration, the court reasoned that it could not qualify as an aggravated felony as the controlled substance act contains an “exception” for cases involving a small amount and no remuneration. arguably, and as a result of moncrieffe, anyone administratively removed pursuant to a state conviction similar to the georgia statute in which there is an element of “possession with intent to distribute” but no element of remuneration or any minimum quantity of marijuana may not qualify as an aggravated felon.106 thus, an important question is whether the dhs, as opposed to a judge, should determine whether a person is an aggravated felon. the examples above illustrate the complex analysis involved in applying expedited removal, reinstatement, and administrative removal, and also raise legitimate concerns about sustaining a paradigm in which people can be removed without any process or regular court proceeding. as a final example, it is possible that speed deportation programs, where the screening is limited and the deportation timeline immediate, increase the chances that dhs will mistakenly deport a united states citizen. scholars have identified the legal and factual complication of citizenship, especially when one is claiming derivative citizenship, citizenship by acquisition, or when one does not know he has a claim to citizenship.107 the possibility of error is higher when this complexity is combined with speed. professor lee terán describes the wrongful deportation of wilfredo garza, the son of a united states citizen who raised a citizenship claim to dhs: mr. garza filed an application for certificate of citizenship to dhs, and he repeatedly told the officer that he had a claim to citizenship. dhs failed to consider mr. garza’s claim and simply removed him. the risk of removal of individuals with citizenship claims is high when examination by dhs is limited to the identity of the individual subject to reinstatement and whether he has previously been deported or removed. the procedures implemented by dhs fail to require at a minimum a full and objective investigation of the claim, cancellation of the reinstatement order, and referral to the immigration judge. the unbridled use of ina section 241(a)(5) under procedures where there is no hearing before an immigration judge and no meaningful opportunity to present a claim to citizenship all but guarantees that individuals like mr. garza who have unresolved claims to u.s. citizenship are removed.108 c. the government’s interest 1. improving efficiency the policy goals of accelerating deportation for select populations are partially economic. in describing the cost-savings associated with the expedited removal program, former ins general counsel david martin noted, “the er process allows ins to issue formal removal orders even more efficiently, particularly where asylum is not at issue . . . [er] takes a matter of hours rather than days, and in the overwhelming majority of such cases, as before, there is no genuine issue about whether fraud has been 106 see american immigration council et. al., moncrieffe v. holder: implications for drug charges and other issues involving the categorical approach 6-7 (may 2, 2013), available at http://immigrantdefenseproject.org/wp-content/uploads/2013/05/moncrieffe-pa-5-1-13-final.pdf. 107 see generally jacqueline stevens, u.s. government unlawfully detaining and deporting u.s. citizens as aliens, 18 va. j. soc. pol’y & l. 637 (2011); see also koh, supra note 101 (describing the complexity of u.s. citizenship claims and the large numbers of u.s. citizens have been subject to immigration enforcement). 108 lee. j terán, mexican children of u.s. citizens: “vignes prin” and other tales of challenges to asserting acquired u.s. citizenship, 14 scholar 583, 662-63 (2012). 2014 columbia journal of race and law 19 attempted.”109 accelerating removal through programs like administrative, expedited, and reinstatement removal improves economic efficiency. such removals avoid the costs associated with an administrative hearing before the immigration judge, time from the dhs trial attorney, an interpreter, law clerk, transcriber, and future appeals. indeed, eoir statistics are staggering as immigration judges handle thousands of matters each year.110 the crisis faced by immigration courts persist and as stated in a frontpage story that ran in the washington post in february 2014: [d]ay after day, case after case, in one of the 57 overwhelmed immigration courts across the country. here, on the second floor of a high rise in crystal city, tissue boxes are stacked near the courtroom entrance and attorneys push rolling file cabinets, because a briefcase is no longer sufficient to hold caseloads that have tripled in the past decade.111 described by one immigration judge as “doing death penalty cases in traffic court” the job of an immigration judge is stressful: tough was hearing 1,500 cases per year while federal judges decided 440. it was sharing one law clerk with other immigration judges while each federal judge had four clerks of his own. it was being scheduled to sit on the bench for 36 hours a week and listen to asylum cases that detailed people’s escapes from gangs, rapes, beheadings, human trafficking and torture; and then having to objectively ask those people for the documents, for the scars, for the proof; and then making a judgment about the character of those people, first through a video feed and then through an interpreter; and then judging the merits of their cases in the shifting landscape of immigration law; and finally taking a deep breath, synthesizing so much information, and rendering a lawful, smart, artful, confident decision on the spot, because the schedule allowed little time for reflection or written decisions before the next case began.112 the tension faced in immigration courts was heightened by a furlough of the federal government in 2013, which set the court backlog back even further. as described in one related news account: “immigration judge dana leigh marks said she doesn't have two weeks open on her calendar in san francisco's immigration court for merit hearings until june 2017. and she can't just bump people with court dates this year, because they've also been waiting for their day in court.”113 if people who are placed in removal 109 martin, supra note 88. 110 eoir statistics for 2012 reveals that that the immigration courts completed 382,675 matters. office of planning, analysis, & technology, exec. office of immigration review, fy2012 statistical yearbook b2 (2013), available at http://www.justice.gov/eoir/statspub/fy12syb.pdf. according to trac, as of january 2014, the number of pending deportation cases was at an all-time high of 360,186. backlog of pending cases in immigration courts as of january 2014, tracimmigration, http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php (last visited mar. 10, 2014). 111 eli saslow, in a crowded immigration court, seven minutes to decide a family’s future, the washington post (feb. 2, 2014), http://www.washingtonpost.com/national/in-a-crowded-immigration-court-seven-minutes-to-decide-afamilys-future/2014/02/02/518c3e3e-8798-11e3-a5bd-844629433ba3_story.html. 112 id. 113 amy taxin, government shutdown hurt more than 37,000 immigration cases, huffington post (feb. 22, 2014, 12:47 pm), http://www.huffingtonpost.com/2014/02/22/government-shutdown-immigration_n_4838375.html. in 2013, the average number of days a pending case had been open was 760 days; in january 2014, the average was 809 days. backlog of pending cases in immigration courts as of january 2014, supra note 110; see also daniel m. kowalski, 555-day backlog at houston immigration court, lexisnexis newsroom, immigration law (dec. 24, 2013, 9:21am), 20 the rise of speed deportation and the role of discretion vol. 5.1 proceedings are waiting for up to two years to be scheduled for a trial or what is commonly called the “individual calendar hearing,”114 then what kind of resources would be needed to provide such hearings for individuals who are currently processed through a speed deportation program? proponents of speed deportation also may view it as an efficient deterrent for stemming unlawful migration into the united states.115 arguably, a mexican national who is considering re-entry into the united states following a removal order may be deterred from doing so based on his knowledge of the reinstatement statute and the fact that he can be removed without consideration of his equities like a united states citizen child. but speed removal programs are not effective as deterrents if people have compelling reasons to be in the united states. for example, reunification with a family or prospect of steady employment are factors that often propel migration in spite of the related risks. likewise, it is hard to confirm if individuals potentially at risk for speed deportation have knowledge about these programs and the consequences that follow. nevertheless, the literature on unauthorized migration suggests that people come to the united states for opportunity and in spite of the risks of potential deportation.116 beyond the scope of this article but critical to understanding the root causes for migration is the wave of families and unaccompanied minors entering the united states from central america. social scientists, legal experts and the united nations have identified violence, not poverty, as a key driver for this migration wave.117 2. enforcement mission another important policy question is the degree to which speed removal programs support the mission of dhs. according to its website, ice’s primary mission is to “promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade and immigration.”118 higher deportation numbers also benefit the image the government seeks to portray to the policymakers who support amplified immigration enforcement. as described in the press release by dhs in connection with its 2013 removals: these figures highlight ice's ongoing commitment to primary immigration enforcement missions: the apprehension of criminal aliens http://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2013/12/24/555-day-backlog-athouston-immigration-court.aspx; american bar association, commission on immigration, reforming the immigration system: proposals to promote independence, fairness, efficiency, and professionalism in the adjudication of immigration cases (2010), available at http://www.americanbar.org/content/dam/aba/migrated/immigration/publicdocuments/aba_complete_full_report.a uthcheckdam.pdf. 114 introduction to the master calendar, u.s. dep’t of justice executive office of immigration review, immigration judge benchbook, available at http://www.justice.gov/eoir/vll/benchbook/tools/purpose_and_history_of_mc.pdf (last visited feb. 25, 2014). 115 see, e.g., alison siskin & ruth ellen wasem, cong. research serv., rl 33109, immigration policy on expedited removal of aliens 15 (2005), available at http://fpc.state.gov/documents/organization/54512.pdf (“in addition, there is evidence that the most recent expansion of expedited removal along the southwest border has decreased the apprehensions of otms along the border,72 which may imply that the expansion of expedited removal has been a deterrent to those trying to enter the country illegally”). 116 see, e.g., chiamaka nwosu et. al., frequently requested statistics on immigrants and immigration in the united states, migration policy institute (apr. 28, 2014), http://www.migrationpolicy.org/article/frequently-requested-statisticsimmigrants-and-immigration-united-states. 117 see, e.g., sonia nazario, the children of the drug wars, a refugee crisis, not an immigration crisis, n. y. times (july 11, 2014), http://www.nytimes.com/2014/07/13/opinion/sunday/a-refugee-crisis-not-an-immigrationcrisis.html?_r=0. 118 overview, ice, http://www.ice.gov/about/overview/ (last visited mar. 29, 2014). 2014 columbia journal of race and law 21 and other immigration violators in the interior of the united states; and the detention and removal of individuals apprehended by ice and u.s. customs and border protection (cbp) while attempting to unlawfully enter the united states.119 ice linked the removal numbers to the agency’s commitment to enforcement and the surge in removals involving an identified “priority,”120 but advocates for immigration reform were critical of the continued deportation apparatus and fact that some people deported might in the future qualify for a legalization program.121 likewise, immigration advocates have been wary about how dhs defines a “priority”, especially as “recent illegal entrants” and “aliens who are fugitives or otherwise obstruct immigration controls” are deemed to be “priorities” for enforcement even though many people who fall into these categories lack a criminal background or history that ordinary people would calculate as serious.122 criticism over dhs’s removal record has been directed not only at dhs, the agency responsible for executing removal orders, but also at the obama administration. at the annual awards dinner of the national council of la raza, its president, janet murgia, labeled president barack obama as the “deporterin-chief.”123 at the same dinner, democratic senator robert menendez remarked, “while we continue waiting for the house of representatives to wake up and move on immigration reform legislation, i urge the president to take action today and halt needless deportations that are splitting apart our families and communities.”124 even before ice released its removal numbers for 2013, policy think tanks and journalists wrote fierce headlines highlighting that president obama has deported more noncitizens each year than were deported during the entirety of the george w. bush administration.125 while one may conclude that dhs has utilized speed deportations in order to keep their removal statistics high for political reasons, the merits of this choice may not be as simple and are worthy of debate. in march 2014, president obama indicated that dhs would review its deportation numbers and he emphasized his “deep concern about the pain too many families feel from the separation that comes from our broken immigration system.”126 thereafter, members of the media, members of congress, and advocates published ideas and recommendations for modifying the current deportation policy. indeed, the “government interest” behind speed deportation is further complicated by efficient removal of priority subjects on the one hand and protecting family members and others with equities from removal on the 119 id. 120 see memorandum from morton, supra note 14; see also wadhia, supra note 18. 121 see, e.g., walter ewing, new ice deportation statistics are no cause for celebration, immigration impact (dec. 20, 2013), http://immigrationimpact.com/2013/12/20/new-ice-deportation-statistics-are-no-cause-for-celebration/. 122 see memorandum from morton, supra note 14; see also maria ines zamudio, felony deportation decline as ice officers resist former chief’s 2010 directive, the chicago reporter (oct. 30, 2013), http://www.chicagoreporter.com/felony-deportations-decline-ice-officers-resist-former-chiefs-2010-directive. 123 justin sink, obama rebukes deportation criticism, the hill (mar. 6, 2014, 12:30 pm), http://thehill.com/blogs/blog-briefing-room/200106-obama-rebukes-deportation-criticism. 124 alexander bolton, dems to obama: slow the deportations, the hill (june 6, 2014, 6:00 am), http://thehill.com/homenews/senate/200066-dems-to-obama-slow-the-deportations. 125 see, e.g., ana gonzalez-barrera and mark hugo lopez, high rate of deportations continue under obama despite latino disapproval, pew research center fact tank (sept. 19, 2013), http://www.pewresearch.org/facttank/2013/09/19/high-rate-of-deportations-continue-under-obama-despite-latino-disapproval/. 126 press briefing, press secretary jay carney & secretary of education arne duncan (march 14, 2014) (available online at http://www.whitehouse.gov/photos-and-video/video/2014/03/14/press-briefing); see also, michael d. shear, obama orders review of deportations, n. y. times (mar. 13, 2014), http://www.nytimes.com/2014/03/14/us/obama-orders-review-of-deportations.html; michael d. shear & julia preston, deportation policy shift is signaled by obama, n.y. times (mar. 14, 2014), http://www.nytimes.com/2014/03/15/us/politics/deportation-policy-shift-is-signaled-byobama.html?hpw&rref=politics&_r=0. 22 the rise of speed deportation and the role of discretion vol. 5.1 other hand, and makes it that much more difficult to clarify. nevertheless, creating an enforcement policy that is also humane is part of the mission of dhs. in discussing how expedited removal in particular is tied to a broader enforcement strategy, professor david martin argues: it makes sense to concentrate immigration enforcement at the border. as a general matter, catching violators during the first attempt at entry prevents inadmissible aliens from establishing homes, employment, and other ties to this country. this enforcement strategy also makes it easier for the individual involved to resume their lives in their countries of origin.127 though professor martin’s view was provided in the context of expedited removals only, it raises a policy question for this article about whether first-time violators with an expedited removal order are distinguishable from other subjects of speed deportation who have the kinds of equities and hardships showcased by immigration advocates. certainly, and as identified earlier, there remains the possibility for one person to interact with more than one type of speed deportation program by, for example, entering the united states without documents and then getting ejected through expedited removal and by reentering the united states years later only to face a reinstatement order regardless of equities. iv. the relationship between discretion and speed deportation dhs has discretion in deciding whether to subject an individual to speed deportation.128 individuals who have equities (such as a spouse who is a united states citizen) a serious medical disability, or eligibility for formal relief should be given a full court proceeding and the opportunity to apply for relief from removal that they may otherwise be prohibited from seeking. the premise that dhs can exercise discretion by placing such individuals in removal proceedings before an immigration judge (as opposed to a speedy one) is established in the statute, case law, general principles of prosecutorial discretion, agency memoranda, and secondary treatises.129 “prosecutorial discretion” refers to a decision by the immigration agency about whether, and to what extent, the dhs should enforce immigration laws against a person or group. broad authority for prosecutorial discretion can be found in section 103 of the ina, which affirms that dhs “[is] charged with the administration and enforcement of this act and all other laws relating to the immigration and naturalization of aliens.”130 the supreme court has also recognized the legality of prosecutorial discretion in the immigration context. in the case arizona v. united states, the court wrote, “removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all.”131 such discretion is also supported by the language of the statute and case law specific to reinstatement, expedited removal, and administrative removal. in the reinstatement context, the ninth circuit found that “even though an alien is not entitled to a hearing before an immigration judge on the issue of reinstatement of a prior removal order, nothing in [the statute] or its implementing regulations deprives the agency of discretion to afford an alien a new plenary removal hearing.”132 citing to the wide prosecutorial discretion held by dhs, the court continued: 127 martin, supra note 90, at 687. 128 see generally memorandum from morton, supra note 14. 129 see, e.g., § ina 238(b)(1), 8 u.s.c. § 1238(b) (1) (2014); memorandum from morton, supra note 14; memorandum from william j. howard, principal legal advisor, u.s. immigration & customs enforcement 3 (oct. 24, 2005) available at http://www.aila.org/content/default.aspx?bc=1016%7c6715%7c8412%7c18465%7c17718. 130 ina § 103(a)(1), 8 u.s.c § 1103(a)(1) (2014). 131 132 s. ct. 2492 (2012). 132 villa-anguiano v. attorney general, 727 f.3d 873, 878 (2013). 2014 columbia journal of race and law 23 particularly when there is any question about whether the requirements of 241.5 [sic] have been satisfied and even they have been, an ice officer may decide to forgo reinstatement of a prior order of removal in favor of initiating new removal proceedings with accompanying procedural rights to counsel and a hearing in immigration court.133 in the administrative removal context, the statute explicitly gives dhs a choice to place a person in speed deportation or 240 removal proceedings. specially, section 238(b)(1) of the ina states that the [secretary of homeland security] “[m]ay, in the case of an alien described in paragraph (2) [relating to nonlprs] determine the deportability of such alien under section 237(a)(2)(a)(iii) and issue an order of removal pursuant to the procedures set forth in this subsection or section 240.”134 the language of the statute leaves open the possibility that dhs has prosecutorial discretion to place a person legally subject to 238(b) before a trier of fact in a 240 removal proceeding. likewise, in the expedited removal context, the bia held that ina § 235(b)(1)(a)(i) does not limit the prosecutorial discretion of dhs to place “arriving aliens” in removal proceedings under section 240 of the act.135 notably, the board held: first, we observe that the issue arises in the context of a purported restraint on the dhs’s exercise of its prosecutorial discretion. in that context, we find that congress’ use of the term “shall” in section 235(b)(1)(a)(i) of the act does not carry its ordinary meaning, namely, that an act is mandatory. it is common for the term “shall” to mean “may” when it relates to decisions made by the executive branch of the government on whether to charge an individual and on what charge or charges to bring.136 the bia has also found that the statute supports the choice of dhs instead to place individuals who may be subject to expedited removal in a regular removal proceeding. while one part of the statute states that an officer faced with arriving noncitizens who are inadmissible for reasons of fraud or a lack of proper documentation “shall order the alien removed from the united states without further hearing or review,”137 the statutory language also considers these same individuals for regular removal proceedings. as articulated by the bia: [w]e find that the statutory scheme itself supports our reading that the dhs has discretion to put aliens in section 240 removal proceedings even though they may also be subject to expedited removal under section 235(b)(1)(a)(i) of the act. section 235(b)(2)(a) of the act provides that “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not 133 id. (emphasis added). 134 see ina § 238(b)(1), 8 u.s.c § 1228(b)(1) (2014) (internal citations omitted). 135 matter of e-r-m& l-r-m-, 25 i. & n. dec. 520 (bia 2011). notably, the board itself acknowledged that placing individuals in removal proceedings would be preferable. “the respondents are not prejudiced by their placement in section 240 removal proceedings and, in fact, have more rights available to them in proceedings under section 240 than in expedited removal proceedings, where aliens may only raise persecution-related relief.” id. 136 matter of e-r-m& l-r-m-, 25 i. & n. dec. 520. 137 see ina 235(b)(1)(a)(i), 8 u.s.c. § 1235(b)(1)(a)(i) (2014). 24 the rise of speed deportation and the role of discretion vol. 5.1 clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240.138 agency guidance documents have also affirmed the role of prosecutorial discretion in immigration law. the act of abstaining from enforcing the immigration law against a person through a favorable exercise of prosecutorial discretion can take place at many different stages of the enforcement process, not just the charging stage. not only may the immigration agency exercise prosecutorial discretion at different stages of enforcement, but it may also use a variety of different tools to carry out this discretion. there are more than twenty different kinds of prosecutorial discretion in immigration law, including, but not limited to: a decision to cancel a charging document called the notice to appear, a decision to release a person from detention even if that person legally qualifies for custody, and a decision to not execute a removal order and instead issue a stay of deportation and supervision order for someone who has already been ordered removed.139 the seminal guidance document from ice on prosecutorial discretion identifies “deciding to issue, reissue, serve, file, or cancel a notice to appear (nta)” as among several forms of prosecutorial discretion.140 importantly, the filing of the nta is a significant point in the immigration enforcement process as it commences a “removal proceeding” pursuant to § 240 of the act.141 in general, while a decision by dhs to refrain from filing an nta is often viewed as a favorable exercise of prosecutorial discretion (e.g., in the case of a noncitizen who is ineligible for any relief from removal), the filing of an nta is a positive act for individuals otherwise subject to administrative, expedited, or reinstatement removal because it provides them with the opportunity to apply for relief in a full and fair hearing before a neutral trier-of-fact.142 the agency must consider humanitarian factors and the possibility for other relief when deciding to place a person who legally qualifies for speed deportation in removal proceedings instead.143 one policy challenge for advocates seeking to rely on guidance documents to advance prosecutorial discretion in these situations is the fact that the enforcement arm of dhs does not support this policy. instead, ice supports a policy that discourages nta issuance in favor of speed deportation regarding prosecutorial discretion. for example, a 2005 dhs memo instructs “we should attempt to discourage issuance of ntas where there are other options available, such as administrative removal, crewman removal, expedited removal, or reinstatement.”144 arguably, the desire by dhs to discourage ntas is economically motivated. this is especially true when the noncitizen lacks family ties, equities, eligibility for immigration relief outside of a removal withholding or cat exemption, or other 138 matter of e-r-m& l-r-m-, 25 i & n dec. 520. 139 see memorandum from morton, supra note 14; see also ctr. for immigrants’ rights, penn. st. univ. dickinson sch. of law, to file or note to file a notice to appear: improving the government’s use of prosecutorial discretion (2013), available at https://law.psu.edu/sites/default/files/documents/pdfs/ntareportfinal.pdf. 140 memorandum from morton, supra note 14. 141 8 c.f.r. § 1003.14(a). 142 see, e.g., ctr. for immigrants’ rights, supra note 139, at 7 n.9. 143 memorandum from morton, supra note 14 (“the following positive factors should prompt particular care and consideration: • veterans and members of the u.s. armed forces; • long-time lawful permanent residents; • minors and elderly individuals; • individuals present in the united states since childhood; • pregnant or nursing women; • victims of domestic violence; trafficking, or other serious crimes; • individuals who suffer from a serious mental or physical disability; and • individuals with serious health conditions”). 144 memorandum from howard, supra note 129. 2014 columbia journal of race and law 25 humanitarian factors that should be considered. however, it may also be true that without an nta or removal hearing, the government is unable to identify individuals who might fall into one of these more sympathetic categories. for example, if a person is subject to an administrative removal order because of an alleged aggravated felony conviction, dhs may have no reason to elicit information from the noncitizen about his equities or individual circumstances.145 moreover, even when a person subject to reinstatement or administrative removal expresses a reasonable fear that is eventually documented by an asylum officer, the only forms of relief considered by the immigration judge at a withholding-only hearing are traditional withholding of removal and protections under cat, neither of which necessitate an exploration into the discretionary factors specific to an individual or potential other relief such as adjustment of status or cancellation of removal. each time dhs places a person in administrative, expedited or reinstatement of removal without consideration of (1) specific individual factors like family in the united states or (2) ambiguities surrounding the underlying conduct giving rise to removal and other humanitarian circumstances, dhs is failing to exercise prosecutorial discretion. for example, in regards to eduardo, dhs could use its discretion under the statute or general principles of prosecutorial discretion to place eduardo in regular removal proceedings by filing a notice to appear in lieu of issuing him an administrative removal order. the benefit for eduardo is the opportunity to apply for relief from removal such as adjustment of status based on marriage to a united states citizen and a waiver of inadmissibility based on his criminal conviction. eduardo or his counsel would also have the opportunity to challenge removability before the immigration judge, but dhs placing eduardo into removal proceedings would not automatically lead to relief for eduardo. it would provide him with a day in court and the opportunity to seek relief and related waivers from an immigration judge, which are not available to individuals subject to a final administrative removal order. v. conclusion this article began with an examination of deportations resulting from the expedited removal, administrative removal, and reinstatement of removal orders and considered whether these programs are good policy following the framework outlined in mathews v. eldridge. this article then examined the degree to which the immigration agency has discretion to place individuals subject to a speed removal program into regular removal proceedings. dhs should provide a fair day in court for those who qualify for relief from removal or whom the administration has determined warrant protection from removal based on individual equities.146 dhs could issue a guideline stating that any person facing a legally sufficient charge or determination that he is removable or inadmissible through expedited, administrative, or reinstatement of removal should be automatically screened under the following factors to determine if a regular full court proceeding is appropriate: 145 one scholar argues that “court-observers, advocates, and federal judges frequently note the fervent manner in which some ice attorneys prosecute removal cases by pursuing inaccurate or inflated grounds for removal, refusing to negotiate, stipulate, or even communicate with noncitizens or their representatives before hearings; failing to turn over evidence bearing on removability; and opposing discretionary relief no matter how clear the merits or how strong the equities.” jason a. cade, the challenge of seeking justice done in removal proceedings, 89 tul. l. rev. (forthcoming 2014). 146 possibly, a full review and modification of immigration prosecutorial discretion would reduce the number of noncitizens who are targeted for enforcement in the first place but a discussion of broader administrative solutions like deferred action are beyond the scope of this article. 26 the rise of speed deportation and the role of discretion vol. 5.1 • eligibility for relief from removal, including, but not limited to, challenges to removability, adjustment of status or viable asylum claims; • veterans and members of the u.s. armed forces; • long-time lawful permanent residents; • minors147 and the elderly; • individuals who have lived in the united states since childhood; • pregnant or nursing women; • victims of domestic violence; trafficking, or other serious crimes; • parents of children who are us citizens or lawful permanent residents; • individuals who suffer from a serious mental or physical disability; and • individuals with serious health conditions.148 as part of this new process, dhs could create a screening form for officers to use in conjunction with its decision about whether or not to place a person in a speed deportation. as a legal mater, this screening would not undermine the existing statutory framework for speed deportation. with any proposal, screening individuals may raise costs, but they are necessary to ensure the agency carries out its own policy in a prudent manner. at a minimum, such measures can save the agency costs associated with litigation, damaging news stories, and demands from advocates and attorneys for better solutions. while the article supports the authority and use of discretion by dhs to place noncitizens subject to a speed removal into removal proceedings before an immigration judge, it is necessary to also consider the degree to which this position can be reconciled with the policy challenges faced by immigration courts. it is a difficult task to address the tension between this article’s recommendation and the desire to boost the number of cases by employing prosecutorial discretion in favor of ntas for individuals who might ordinarily qualify for a speed deportation program in the face of an overstretched immigration court system. however, it may very well be worth the expense to protect the noncitizen from removal or at the very least provide her with the dignity and protection of a day in court. moreover, there are costs associated with the family members and responsibilities a deportee leaves behind, for example, the primary care for a minor child who is a united states citizen or full time employment for a burgeoning american company.149 147 this category should include unaccompanied minors based on a plain reading of the term and the recent policy announcements by the administration to improve safeguards for this population. see, e.g., press release, dep’t of justice office of pub. affairs, justice department and cncs announces new partnership to enhance immigration courts and provide critical assistance to unaccompanied minors, (june 6, 2014), (available online at http://www.justice.gov/opa/pr/2014/june/14-ag-609.html). 148 several of these factors are classified as warranting particular consideration for a favorable act of prosecutorial discretion in memorandum from morton, supra note 14. 149 as synthesized in one article: “the deportations [of parents] have a ripple effect, advocates say. a 2010 urban institute study looked at the consequences of parent arrest, detention and deportation on nearly 200 children from 85 families in six locations. most families lost a working parent, and housing instability and food insecurity were prevalent. about two-thirds of the children experienced changes in their eating and sleeping habits in the months afterward. more than half said they cried a lot and were more fearful. a third showed more anger or aggression.” michael alison chandler, deportations of parents can cast the lives of u.s.-citizen kids into turmoil, the washington post (dec. 29, 2013), http://www.washingtonpost.com/local/education/deportations-of-parents-can-cast-the-lives-of-uscitizen-kids-into-turmoil/2013/12/29/abdf23aa-6b4c-11e3-b405-7e360f7e9fd2_story.html; see also eli saslow, a ‘band-aid’ for 800 children, the washington post (july 5, 2014), http://www.washingtonpost.com/sf/national/2014/07/05/a-band-aid-for-800-children/. 2014 columbia journal of race and law 27 if speed deportation programs are here to stay, dhs must operate these programs with an understanding of how discretion fits into this process and protect those who are important additions to the united states. microsoft word let’s talk about reparations.docx let’s talk about reparations nkechi taifa* in the spring of the 2019, the columbia journal of race and law invited activist, attorney and scholar, nkechi taifa, to columbia law school for a public lecture on the topic of reparations for descendent of enslaved africans in the united states. reparations has been a subject to much public discourse over the years and, in the last decade in particular, there has been a renewed interest on the political viability of establishing a federal commission to study the harm caused by slavery and develop recommendations to repairing those lingering harms on living african americans today. on june 19, 2019, the house of representatives held a historic public hearing, where prominent african american scholars, activists, writers, lawyers, amongst others, shared their thoughts on the topic of reparations. this renewed interest is a culmination of over a century long struggle by the reparations’ movement in the united states. ms. taifa offers that historical view of the reparation’s movement in the united states. in her captivating address to the columbia law school community, ms. taifa articulates the passions, courage, vision, successes, frustrations and resilience of the reparations movement in the united states from the late 1800s to the present. at the conclusion of ms. taifa’s remark, it was obvious to us at cjrl that ms. taifa’s timely messages was much a much-needed intervention in the reparations discourse. * nkechi taifa is the president of the taifa group, llc; founding member national coalition of blacks for reparations in america; commissioner national african american reparations commission. the author is grateful to joanne choi, ibrahim diallo, jake elkin, amanda mcnally, and the entire editorial staff of the columbia journal of race and law. the author is especially grateful to kamilah moore for organizing this important event. 2 columbia journal of race and law [vol. 10 it is with that aim that the cjrl editorial board, in consultation with ms. taifa, decided to publish her remarks. aside from the citations and annotation, the text below is largely as she delivered it a columbia law school audience on march 26, 2019. we are grateful to ms. taifa for allowing us to publish her speech and for working with us through the editorial process. we are overjoyed to be able to share her work with the world. the human cargo was loaded on ships at a bustling wharf in the nation’s capital, destined for the plantations of the deep south. some [of the enslaved] pleaded for rosaries as they were rounded up, praying for deliverance. but, on this day, in the fall of 1838, no one was spared: not the 2-month-old baby or her mother, not the field hands, not the shoemaker and not cornelius hawkins, who was about 13 years old when he was forced on board. the enslaved were grandmothers and grandfathers, carpenters and blacksmiths, pregnant women and anxious fathers, children and infants, who were fearful, bewildered, and despairing as they saw their families and communities ripped apart by the sale of 1838. some children were sold without their parents…and slaves “were dragged off by force to the ship…” others…ran away before they could be captured. their panic and their desperation would be mostly forgotten for more than a century. but this was no ordinary [sale of enslaved people]. the enslaved [human beings] had belonged to the nation’s most prominent jesuit priest. and they were sold, along with scores of others, to help special feature let’s talk about reparations 3 secure the future of the premier catholic institution of higher learning at the time, known today as georgetown university.1 so, what happened to these 272 men, women, and children who were literally sold down the river? and what is owed, if anything, to the descendants of those enslaved, and the descendants of the millions of others whose names and circumstances we will never know, who were sold, or insured, or raped, or castrated, or lynched, or subjected to gynecological experiments with no anesthesia, convict leasing, forced sterilizations, syphilis, redlining, mass incarceration…2 what is owed, if anything, to the descendants of the enslaved whose kidnappings and tortures and uncompensated labor helped to ensure the survival of colleges, and universities, and banks, and corporations, and industries, and religious institutions, and private estates, and yes, local, state, and federal governments.3 1 rachel l. swarns, 272 slaves were sold to save georgetown. what does it owe their descendants?, n.y. times (apr. 16, 2016), https://www.nytimes. com/2016/04/17/us/georgetown-university-search-for-slavedescendants.html. 2 cynthia prater et al, racism, african american women, and their sexual and reproductive health: a review of historical and contemporary evidence and implications for health equity, 2 health equity 249, 251-52 (2018) (discussing discriminatory healthcare practices and violence against black men and women from slavery to the post-civil rights era); see also james g. pope, mass incarceration, convict leasing, and the thirteenth amendment: a revisionist view, 94 n.y.u. l. rev. no. 6 (forthcoming dec. 2019) (discussing how the original meaning of the thirteenth amendment protects convicted offenders against slavery or involuntary servitude unless it has been imposed as a specific punishment for that specific crime). 3 scholars at yale published a research paper calling on yale university to acknowledge how it has benefited from the profits of slave trade and to consider reparations. see kate zernike, slave traders in yale’s past fuel debate on restitution, n.y. times (aug. 13, 2001), https://www.nytimes .com/2001/08/13/nyregion/slave-traders-in-yale-s-past-fuel-debate-onrestitution.html?module=inline; ruth j. simmons, the 18th president of brown university, appointed a committee on slavery and justice to spend 4 columbia journal of race and law [vol. 10 thank you, columbia law school, for allowing me to share, just for a few minutes as part of my opening framing, an excerpt from professor rachel l. swarns’s article published in the new york times on april 16, 2016 chillingly describing the sale of 272 enslaved persons to ensure the future of georgetown university.4 i’m pleased to have been asked to speak here today at columbia, an institution that is also looking at its own role and complicity in the crime against humanity that was the enslavement era.5 unlike the georgetown revelations—where there was a ship manifest with names—there is rarely evidence of identifiable descendants from the enslavement era from which to highlight not only the atrocities of the era, but its continuing vestiges, and to seek acknowledgment and remedy. indeed, the two years investigating brown’s historic ties to slavery. see pam belluck, brown u. to examine debt to slave trade, n.y. times, (mar. 13, 2004), https://www.nytimes.com/2004/03/13/us/brown-u-to-examine-debt-to-slavetrade.html. 4 see supra note 1 and accompanying text. 5 professor and historian eric foner led a research seminar on columbia university’s relationships with slavery. students in the seminar presented their research to columbia university’s president, lee c. bollinger. columbia university has been described as a “late comer to the studies of universities and slavery.” columbia’s reckoning began when bollinger read about craig steven wilder’s book, “ebony and ivy: race, slavery and the troubled history of america’s universities,” which included information about columbia and the institution’s history with slavery. the book documents how columbia university (then named king’s college) announced the swearing in of its first trustees on a poster paid for with a single advertisement: “for a slave action near beekman’s slip in lower manhattan.” see jennifer schuessler, columbia examines its long-ago links to slavery, n.y. times (may 13, 2015), https://www.nytimes.com/2015/ 05/14/books/columbia-examines-its-long-ago-links-to-slavery.html?smid=twshare; see also jennifer schuessler, dirty antebellum secrets in ivory towers, n.y. times (oct. 18, 2013), https://www.nytimes.com/2013/10/19/books/ ebony-and-ivy-about-how-slavery-helped-universitiesgrow.html?module=inline. special feature let’s talk about reparations 5 issue of reparations for african-descended people in the united states was once in the not-too-distant past unthinkable, unfathomable by mainstream america as viable public policy.6 much of the information about the enslavement era and the role of culpable parties, in general, has been buried. it’s been buried for a very long time. just as the bombing of black wall street in tulsa, oklahoma. the massacre in rosewood, florida. if you don’t know these instances, just google [them].7 countless others yet to be uncovered. our history must not be buried. it must not be swept under the rug. and the descended victims must not be the only ones to uncover and unpack it. my white colleague katrina browne uncovered evidence that her new england ancestors were the largest slave-trading family in u.s. history; [her ancestors] brought over 10,000 africans to the americas in chains.8 she documented her roots 6 former representative john conyers of michigan has proposed a bill that would establish a commission to study the impact of slavery and recommendations regarding reparations in 1989 and had continued to reintroduce it every congressional session until his retirement in 2017. house panel to consider slavery reparations proposals, all things considered, npr (jun. 16, 2019), https://www.npr.org/2019/06/16/733248929/housepanel-to-consider-slavery-reparations-proposals. 7 tulsa-greenwood race riot claims accountability act of 2007: hearing before the subcomm. on the constitution of the h. comm. on the judiciary, 110th cong. 26-61 (2007) (testimony and responses by john h. franklin, prof. of psych., fordham uni.) (h.r. 1995, the “tulsa-greenwood race riot claims accountability act of 2007, was introduced by rep. conyers to provide survivors or descendants of victims of the 1921 tulsa race massacre with a mechanism to bring civil action for up to five years after the enactment of the bill. in 1921, greenwood, a community in tulsa, was one of the wealthiest african american communities in the united states—so much so that it was referred to as the “black wall street.” on may 31, 1921, the greenwood district was destroyed after being ravaged by a white mob; over 1,200 homes were destroyed and up to 300 african americans were murdered. the state and the city refused to undertake any investigations or prosecutions, and no convictions were ever obtained.). 8 sheryl g. stolberg, at historic hearing, house panel explores reparations, n.y. times (jun. 19, 2019), https://www.nytimes.com/ 6 columbia journal of race and law [vol. 10 in the sundance-acclaimed film traces of the trade: a story from the deep north. deep north, not the south. she stresses that the slave trade was not just a few people taking a boat and sending it out. everyone in the new england town lived off of slavery. the boat maker. the iron worker who made the shackle. the coopers who made the barrels to hold the rum. the distillers who took the molasses and sugar and made it into the rum. literally the whole town was dependent on the slave trade. wealth and privilege in the united states, [browne] says, has been amassed in large measure as a direct or indirect consequence of the institution of slavery. i've been actively organizing around this issue since 1975, at a time when the topic was not popular. when it was definitely on the fringes. when it was not fashionable to address the issue. when one would be branded as a militant, or a revolutionary, or just plain crazy. or today, the term they call it: black identity extremists.9 it gives me great pleasure to now be in the company of some of the leading minds in the country promoting the right to, and the need for, reparatory justice. and now, we are in the company of 2020 presidential candidates and other notables who are beginning to even just utter—feeling comfortable to just 2019/06/19/us/politics/slavery-reparationshearing.html(discussing the hearing on h.r. 40, a legislation that would create a commission to study the effects of slavery and potential reparations). 9 khaled a. beydoun & justin hansford, the f.b.i.’s dangerous crackdown on “black identity extremists,” n.y. times (nov. 15, 2017), https://www.nytimes.com/2017/11/15/opinion/black-identity-extremism-fbitrump.html (op-ed discussing an intelligence report, published in august 2017 by the fbi’s counterterrorism division, identifying “black identity extremists” (bies) as an emerging terror threat sweeping the country. the report predicted that “bies’ perceptions of unjust treatment of african americans and the perceived unchallenged illegitimate actions of law enforcement will inspire premeditated attacks against law enforcement over the next year.”). id. special feature let’s talk about reparations 7 even utter—the term “reparations.” so, it's very critical that this issue be brought out into the open. this reminds me of the words of mamie till-mobley, the mother of fourteen-year-old emmett till, who in 1955 was viciously abducted by whites from the bed in his great uncle's house, who was terrorized and tortured, brutally mutilated, and dumped into the tallahatchie river in mississippi. and the only way her son's beaten and horribly disfigured body could be identified was by a ring that he wore on his finger. but you know, his mama mamie till, she refused a [closed] casket. she said, i don't want to bury his memory under the rug. she stated emphatically, i want you to open up the casket. open it up, she demanded. she said, i want the world to see what they did to my boy. and, just as that casket was opened up for the world to see what was done to emmett till, today we're going to open up the casket of the legacy of enslavement. and we're going to talk about remedy. n’cobra – the national coalition of blacks for reparations in america – was the coalition which spearheaded the modern-day reparations movement. and, i might say, that the seeds of n’cobra emanated from a conference that was hosted at harvard university in 1987—pursuant to a call by the national conference of black lawyers—to discuss whether a constitutional amendment was needed to remedy the legacy of enslavement.10 and then there's another organization, naarc—the national african american reparations commission—[who] opened up that casket [by]connecting the dots between the movement for reparations in the caribbean and across the diaspora and the movement in the united states and, 10 n’cobra was formed in 1987 to develop a grassroots reparations movement, but it is now the largest national organization devoted solely to reparations. in addition to supporting the reparations bill, n’cobra has participated in education campaigns designed to pressure state and local legislatures to support reparations as well. see charles p. henry, the politics of racial reparations, 34 j. black stud. 131, 142 (2003). 8 columbia journal of race and law [vol. 10 like caricom, introduced a comprehensive ten-point program as a critical component of the reparations movement of the 21st century.11 ta-nehisi coates opened up that casket, [and] thrust[ed] the issue of reparations for african-americans in the mainstream with his article in the atlantic magazine.12 those magazines are on people's living room coffee tables, and in the doctor and dentist offices, [and] in the mainstream media. so, let me at this time state emphatically that although many, or some of us may have just heard about this issue in the mainstream press, or might have heard your favorite candidate speak on it, the concept of reparations for black people in america is not novel. nor is the demand for such compensation new. 11 in 2013, caricom, an organization that gathers 15 different caribbean nations to promote integration, decided that each country member would create a commission for reparations. on march 11, 2014, caricom adopted a ten-point plan consisting of both financial reparations and symbolic demands for slavery, the atlantic slave trade, and the genocide of indigenous populations. the plan—addressed to denmark, france, portugal, the netherlands, the united kingdom, and sweden, included the following: (1) full formal apology, (2) repatriation, (3) indigenous peoples development program, (4) cultural institutions, (5) public health crisis, (6) illiteracy eradication, (7) african knowledge program, (8) psychological rehabilitation, (9) technology transfer, (10) debt cancellation. ana lucia araujo, reparations for slavery and the slave trade: a transnational and comparative history (2017); see also david muhammad, caricom’s “10 point program” for reparations for slavery for african people, the final call, http://www.finalcall.com/artman/ publish/world_news_3/article_101422.shtml (last updated may 9, 2014). 12 ta-nehisi coates, the case for reparations, the atlantic (jun. 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-forreparations/361631/ (coates’ essay discussing the idea of financial compensations for the descendants of slaves transformed the national discussion around reparations and put it at the center of u.s. public discourse. in the atlantic article, he argued that the early american economy was built on slave labor, and that both private and public institutions intentionally engineered the black-white “wealth gap.”). special feature let’s talk about reparations 9 the demand for reparations for unpaid labor during the enslavement era has been continuous. there's been no substantial period of time where the call for redress has been neglected. during the late nineteenth century, the national exslave mutual relief, bounty and pension association—led by reverend isaiah dickerson and callie house—had six hundred thousand dues-paying members seeking to obtain compensation for slavery from federal agencies.13 during the 1920s, marcus garvey and universal negro improvement association galvanized hundreds of thousands of black people demanding repatriation as a form of reparations. both of these movements were destabilized by government forces, and their primary leaders unjustly imprisoned.14 we need to open up that casket! in the early 1960s, queen mother audley moore of new york presented a petition for reparations to the united nations on behalf of the universal association of ethiopian women.15 13 see generally mary f. berry, my face is black is true: callie house and the struggle for ex-slave reparations (2006) (recounting the story of pioneering activist, callie house, who lead the fight for reparations for the formerly enslaved, seventy years before the civil rights movement picked up the mantle). 14 marcus garvey was a jamaican-born black nationalist leader who led the “black zionism” movement, which encouraged african-americans to become conscious of their roots and organize their return to africa. the fbi began investigating garvey’s activities in order to destabilize the black power movement, and they actively sought to deport him as an “undesirable alien” to undermine his power. they eventually succeeded and he was convicted of mail fraud in 1923, imprisoned in 1925, and deported to jamaica in 1927. see judith stein, pardon marcus garvey, n.y. times (nov. 5, 1983), https://www.nytimes.com/1983/11/05/opinion/pardon-marcusgarvey.html?searchresultposition=6; see also marcus garvey, fbi records: the vault, https://vault.fbi.gov/marcus-garvey (last accessed oct. 30, 2019). 15 queen mother audley moore, a prominent civil rights activist and black nationalists, was the best-known advocate for african american reparations in the 1950s and 1960s. her organization, the universal association of ethiopian women, actively promoted reparations from 1950 until her death in 1996. see eric pace, queen mother moore, 98, harlem rights leader, dies, 10 columbia journal of race and law [vol. 10 and yes, in his 1964 book why we can't wait, dr. martin luther king proposed a “bill of rights for the disadvantaged,” which emphasized redress for both the historical victimization and exploitation of blacks as well as their present-day degradation.16 in 1967, the black panther party list[ed] the issue of reparations and restitution for slave labor as point number three of their ten-point program.17 also in 1968, the republic of n.y. times (may 7, 1997), https://www.nytimes.com/1997/05/07/nyregion/ queen-mother-moore-98-harlem-rights-leader-dies.html; 16 on may 28, 1964 at the “world march toward human rights luncheon” of the naacp legal education and defense fund, dr. king described the “bill of rights for the disadvantaged” as a broad-based and comprehensive measure that must cover all of the disadvantaged—both blacks and whites. he believed that opportunity and social equity could only be achieved after both racial barriers to blacks and economic barriers to both blacks and whites had been eliminated from the socioeconomic structure. he eventually reframed his earlier call for a “bill of rights for the disadvantaged” to a “social and economic bill of rights,” and it demanded: “(1) the right of every employable citizen to a decent job, (2) the right of every citizen to a decent income, (3) the right of a decent house and the free choice of neighborhood, (4) the right of an adequate education, (5) the right to participate in the decision making process, and (6) the right to the full benefits of modern science in health care.” david b. oppenheimer, dr. king’s dream of affirmative action, 21 harv. latinx l. rev. 56, 80 (aug. 2017). 17 the black panther party’s ten-point program was first publicized in the second issue of the organization’s newspaper, black panther, on may 15, 1967. the platform and program—what we want now! what we believe— was a set of guidelines written by huey b. newton and bobby seale, the founders of the black panther party for self defense. the program emphasized the party’s ideals and commitment to the revolutionary movement, and the original ten point program read: what we want: (1) we want freedom. we want power to determine the destiny of our black community. (2) we want full employment for our people. (3) we want an end to the robbery by the white man of our black community. (4) we want decent housing, fit for shelter [of] human beings. (5) we want education for our people that exposes the true nature of this decadent american society. we want education that teaches us our true history and our role in the present day society. (6) we want all black men to be exempt from military service. (7) we want an immediate end to police special feature let’s talk about reparations 11 new afrika proclaimed in its declaration of independence: “we claim no rights from the united states other than those rights belonging to [human beings] anywhere in the world, and these include the right to damages, reparations, due us for the grievous injuries sustained by our ancestors and ourselves by reason of united states’ lawlessness.”18 in april of 1969, the black manifesto was adopted at the national black economic development conference in detroit. the manifesto—presented by civil rights activist james forman—included a demand that white churches and synagogues pay $500 million dollars in reparations to blacks in brutality and murder of black people. (8) we want freedom for all black men held in federal, state, county, and city prisons and jails. (9) we want all black people when brought to trial to be tried in court by a jury of their peer group or people from their black communities. as defined by the constitution of the united states. (10) we want land, bread, housing, education, clothing, justice and peace. what we believe: (1) we believe that black people will not be free until we are able to determine our destiny. (2) we believe that the federal government is responsible and obligated to give every man employment or a guaranteed income. we believe that if the white american business men will not give full employment, then the means of production should be taken from the business men and placed in the community so that the people of the community can organize and employ all of its people and give a high standard of living. (3) we believe that this racist government has robbed us and now we are demanding the overdue debt of forty acres and two mules. forty acres and two mules was promised 100 years ago as retribution for slave labor and mass murder of black people. we will accept the payment in currency which will be distributed to our many communities: the germans are now aiding the jews in israel for the genocide of the jewish people. the germans murdered 6,000,000 jews. the american racist has taken part in the slaughter of over 50,000,000 black people; therefore, we feel that this is a modest demand that we make… the black panther party’s ten-point program, uc press blog, https://www.ucpress.edu/blog/25139/the-black-panther-partys-ten-pointprogram/ (last accessed oct. 1, 2019). 18 michael t. martin & marilyn yaquinto, redress for historical injustices in the united states: on reparations for slavery, jim crow, and their legacies (2007). 12 columbia journal of race and law [vol. 10 united states, touted as only the beginning of the amount owed.19 the following month, james forman absolutely, audaciously, interrupted sunday service at riverside church here in new york to announce this reparations demand from the black manifesto. and, believe it or not, several religious institutions did respond with financial donations. in 1972, the national black political convention in gary, indiana adopted the “anti-depression program,” which was an act authorizing the payment of a sum of money and reparations for the enslavement era, and a negotiating commission between representatives of the united states and the republic of new afrika to determine kind, dates and other details of paying reparations.20 the nation of islam's publication, muhammed speaks—and later the final call—in their section “what we want, what we believe” has always demanded that the united states exempt black people “from all taxation as long as we're deprived of equal justice.”21 and the organization has long called for the establishment of a separate territory which former slave owners are obligated to financially support for at least twenty years. so the end of the 20th century brought renewed vigor to the call for reparations for people of african descent in the united states—with the founding of the national coalition of blacks for reparations in america. n’cobra was founded to build a mass-based movement for reparations in the united 19 this amount was later raised to $3 billion. keith dye, the black manifesto for reparations in detroit: challenge and response, 1969, 35 mich. hist. rev. 53, 53 (2009). 20 “the program made three basic demands of the u.s. government: ceding land and sovereignty to the rna ‘in areas where blacks vote for independence’ via plebiscite; paying $300 billion in reparations ‘for slavery and unjust war against the black nation’; and establishing a negotiations procedure to determine reparations payment.” dan berger, the hidden 1970s: histories of radicalism (2010). 21 clifton e. marsh, the lost-found nation of islam in america (2000). special feature let’s talk about reparations 13 states. and, since its creation, the call for reparations substantially leaped forward, generating what i call the modernday reparations movement. n’cobra sought to mainstream the concept through public education, legislative and litigat[ion] initiatives. there have been many organizations before and after. there’s dorothy lewis's black reparations commission,22 the african people’s socialist party,23 african national reparations organization,24 the national black united front,25 the december first movement,26 the black radical congress, [and] #40. the movement for black lives included as a key plank the issue of reparations as part of their policy agenda.27 22 charles p. henry, long overdue: the politics of racial reparations (2009) (the black reparations commission, headed by dorothy lewis, worked in partnership with n’cobra to advocate for racial reparations). 23 how the african people’s socialist party made reparations a household word, african people’s socialist party, http://apspuhuru.org/ reparations/history/ (last accessed oct. 31, 2019) (since 1982, the african people’s socialist party has held 12 world tribunals on reparations for african people). 24 political report to the fifth congress of the african people’s socialist party, african people’s socialist party, http://asiuhuru.org/ ontheground/apspusa/congress5/report07.shtml#sthash.dwrtxyhh.dpuf (last accessed oct. 31, 2019) (the african national reparations organization was created by the african people’s socialist party for the sole purpose of making reparations a “household name.”). 25 national black united front, african activist archive, http://africanactivist.msu.edu/organization.php?name=national+black+unite d+front (last accessed oct. 31, 2019) (the national black united front was established in the 1980s to fight for the cultural develop of african people). 26 coloured community (2005) (the december 1st movement, which drew its name from the freeing of enslaved peoples on december 1, 1834, “sought to invigorate a despondent and disunited coloured community by kindling within it an identification with a common slave past.”). 27platform, the movement for black lives, https://policy.m4bl.org/ platform/ (last accessed oct. 31, 2019) (m4bl published a platform which included reparations as one of six key demands: “[w]e demand that the government repair the harms that have been done to black communities in the form of reparations and targeted long-term investments.”). 14 columbia journal of race and law [vol. 10 in 1988, legislation was passed in this country authorizing the payment of $20,000 to each japanese-american detention camp survivor, a $1.5 million trust fund to be used to educate americans about the sufferings of the japaneseamericans, a formal apology from the united states government, and a pardon for all of those convicted of resisting detention camp internment. 28[this legislation] started with a congressionally-mandated commission. and that's when the light bulb went off. there was a model, and there was a very recent, right-in-your-face precedent. a congressionallymandated commission to study the issue of reparations for japanese-americans led to the submission of proposals, which led to a bill that was signed by the president. so, using the commission which led to the japaneseamerican civil liberties act as an inspirational strategy, n’cobra collaborated with congressman john conyers in getting h.r. 40 drafted and introduced.29 a commission to 28 the civil liberties act of 1988, introduced in the house as “civil liberties act of 1987,” was signed into law by president ronald reagan in 1988. the law declared that a “grave injustice was done to citizens and permanent aliens of japanese ancestry” and congress formally apologized on behalf of the nation. it directed the attorney general to identify and locate individuals eligible for reparations and pay $20,000 to each eligible individual. it also established within the treasury a civil liberties public education fund to sponsor research and public educational activities related to internment. finally, the law requested that the president offer pardons to individuals convicted of violating laws or executive orders during the internment period because they refused to accept discriminatory treatment on the basis of their japanese ancestry, civil liberties act of 1988, pub. l. no. 100-383, § 100, 102 stat. 94 (1988). 29 h.r. 40 was introduced in house action by the house of representations on january 3, 2019. it had been introduced in the previous session of congress, but the bill had not been enacted by the 115th congress. the bill establishes the commission to study and develop reparations proposals for african-americans, and the commission will “examine slavery and discrimination in the colonies and the united states from 1619 to the present and recommend appropriate remedies.” the commission will identify “(1) the role of the federal and state governments in supporting the institutions of special feature let’s talk about reparations 15 examine the institution of slavery and subsequent racial and economic discrimination against african americans, and the impact of those forces on black people today. the commission will [have a similar mandate to the commission for japaneseamericans] to make recommendations to congress on appropriate remedies. the number 40 in h.r. 40 is in remembrance of the unfulfilled nineteenth-century campaign promise by general sherman—his field order no. 15—that promised freed blacks forty acres.30 i'm not sure exactly where the mule part came [from]. congressman conyers’s reparations study bill was the key organizing vehicle the n’cobra coalition has used over the past three decades as part of this public education mobilization campaign. the issue of reparations for african americans was once, in the not-too-distant past, unthinkable by mainstream america as viable public policy. but today, there's been a flurry of democratic presidential candidates addressing the issue of reparations with varying levels of understanding and expertise on the issue. i humbly submit, at least for those candidates who are in washington on the hill, that they, and every member of congress, endorse the passage of h.r. 40 and encourage the introduction of a senate companion bill as well. since the introduction of h.r. 40 in 1989, several state legislatures and scores of city councils across the country have passed reparations-type legislation, or h.r. 40 endorsement resolutions. in 1994, the florida state legislature paid $150,000 to each of the 11 survivors of the 1923 rosewood race massacre, [and] slavery, (2) forms in discrimination in the public and private sectors against freed slaves and their descendants, and (3) lingering negative effects of slavery on living african-americans and society.” commission to study and develop reparation proposals for african-americans act, h.r. 40, 116th cong. (2019-2020). 30 barton myers, sherman's field order no. 15., new georgia encyclopedia (sep. 25, 2005), https://www.georgiaencyclopedia.org/ articles/history-archaeology/shermans-field-order-no-15. 16 columbia journal of race and law [vol. 10 created a scholarship fund for students of color.31 in 2001, the tulsa race riot reconciliation act was enacted, with the oklahoma state legislators deciding on a scholarship fund and memorial to commemorate the june 1921 race slaughter that left over 300 black people dead and forty square blocks of exclusively black businesses, homes, schools, churches, obliterated.32 survivors of torture by chicago police received an unprecedented reparations package based on the reparations ordinance passed by the city council as a result of torture by police officers.33 the pigford class action settlement against the u.s department of agriculture for racial discrimination against black farmers in its allocation of farm loans and assistance, is reportedly the largest federal settlement for civil rights violations to date: $2.2 billion.34 city councils endorsing h.r. 40 include: pine bluff, arkansas, alameda county, berkeley, compton, foster city, inglewood, los angeles, east palo alto, san francisco, washington, d. c, atlanta, georgia, chicago, evanston, illinois, baltimore, maryland, detroit, michigan, jackson and claiborne county, mississippi, st louis, missouri, camden, passaic county, patterson and north new jersey, cleveland, ohio, philadelphia, dallas and fort worth, texas, burlington, vermont and richmond, virginia. and i'm sure that there are more. most don't realize this has already happened. these city councils have already passed resolutions endorsing a commission to study this issue. and i cite this because even though this is relatively recent history, it's buried. it’s forgotten, 31 see c. jeanne bassett, house bill 591: florida compensates rosewood victims and their families for a seventy-one-year-old injury, fla. st. u. l. rev. 503, 517 (1994). 32 see okla. stat. tit. 74, § 74-8000.1 (2014). 33 see andrew s. baer, dignity restoration and the chicago police torture reparations ordinance, 92 chi.-kent l. rev. 769 (2018). 34 see tadlock cowan & jody feder, the pigford cases: usda settlement of discrimination suits by black farmers, cong. res. serv. (may 29, 2013), http://nationalaglawcenter.org/wp-content/uploads/assets/crs/rs20430.pdf. special feature let’s talk about reparations 17 and we forever invent wheels when we could leap forward on the shoulders of things that have already gone on before. largely as a result of mobilizations initiated by folks who have been working on these issues for a long time, there have been countless civil and human rights organizations, religious groups, professional organizations, civic groups, sororities, fraternities, and labor unions over the past thirty years who have also endorsed the call for reparations and to endorse h.r. 40. but you know that's not all: reparations advocates have also challenged corporations who benefited from the profits made from the trafficking of human beings. countless companies and industries were enriched as a result of the enslavement era. companies sold life insurance policies on the lives of enslaved persons. aetna, new york life, aig. the financial giants j. p. morgan chase manhattan bank and fleetboston financial group.35 others with documented ties to slavery included the railroads norfolk southern, csx, union pacific, and canadian national.36 and newspaper publishers that assisted in the capture of runaway slaves include: knight ridder, 35 see rachel l. swarns, insurance policies on slaves: new york life’s complicated past, n.y. times (dec. 18, 2016), https://www.nytimes.com/ 2016/12/18/us/insurance-policies-on-slaves-new-york-lifes-complicatedpast.html (discussing life insurance policies on enslaved individuals, which allowed slave owners to “recoup three-quarters of a slave’s value in the event of an untimely death); see also virginia groark, slave policies, n.y. times (may 5, 2002), https://www.nytimes.com/ 2002/05/05/nyregion/slave-policies.html (discussing how major insurance companies like charter oak life insurance company, aetna, the fleetboston financial corporation, and csx corporation profited off of the slave trade by offering insurance policies on enslaved peoples). 36 see danielle young, 6 historic structures in america that were built by slaves, the root (jul. 26, 2016), https://www.theroot.com/6-historicstructures-in-america-that-were-built-by-sla-1790856172 (discussing how the four major railroad networks in north america—norfolk, csx, union pacific, and canadian national—still own lines that were build and operated through the labor of enslaved black people). 18 columbia journal of race and law [vol. 10 tribune, and e.w, scripps.37 and as you well know, the financial backers [of] many of the country's top universities were wealthy slave owners. open up that casket. the quest for reparations, for reparatory justice in the united states since the turn of the century, is not new, although there are those who feel the thrust came about only as a result of today's social media. but indeed, it is quite clear that the demand for reparations in the united states has been long and continuous. and i submit, in the context of black people in this country, the quest for reparations essentially constitutes four elements. number one: the formal acknowledgment of historical wrongs and an official, unfettered apology for the dehumanization and atrocities of the enslavement era and beyond. why do i say “unfettered” apology? why don't i just say apology? because the senate and the house of representatives did pass symbolic resolutions apologizing for slavery and segregation. however, the 2009 bill passed by the senate contained a disclaimer that those seeking reparations or cash compensation could not use the apology to support a legal claim.38 number two: the recognition that the injury has continued throughout the years and still manifests today. number three: the commitment to redress by the federal government, which sanctioned enslavement and subsequent segregation by state and local governments, as well as corporate entities, and religious institutions, and private institutions which enjoy unjust enrichment from the era. and, number four: the actual compensation, in whatever form or forms are agreed upon. formal acknowledgment, recognition that injury continues, a commitment to redress by culpable entities, and the 37 see mwalimu j. shujaa & kenya j. shujaa, the sage encyclopedia of african cultural heritage in north america (2015). 38 see s. con. res. 26, 111th cong. (2009-2010). special feature let’s talk about reparations 19 actual compensation. “so why the federal government?” people often ask me, “wasn’t all of the injury done by the states?” i say the federal government because we must remember the origins of how black people came to this country in the first place. we are the descendants of africans kidnapped and transported to the united states with the explicit complicity of the united states government and every single arm of the united states lawmaking and law-enforcing machinery.39 united states federal law, state law, high court decisions, and lower court decisions.40 the dehumanization, the atrocities, the terrorism of our enslavement in the united states were not isolated occurrences but a matter of war. yes, war, committed under the specific authority of the united states constitution. the kidnapping was a wrongful act for which our ancestors and we as the heirs are entitled to damages. the enslavement was a wrongful act for which our ancestors and we as their heirs are entitled to damages. the stealing of our labor was a wrongful act as was the genocide we’re still suffering. we are entitled to damages, to reparations, to reparatory justice, to compensation. we speak of our own u. s. constitution; article i, section 9, clause i expressly guaranteed the continued importation of african prisoners of war to every single state that might desire our labor until the year 1808. that article also upheld the further dehumanization of the african by relegating their status to that of three-fifths of a white man and most egregious, it was war conducted against the african on this soil under the authority of yet another constitutional provision: article iv, section 2, clause 3, also known as the fugitive slave provision, which mandated that no enslaved person, even if he or she had 39 see nora neale hurston, barracoon: the story of the last “black cargo” (2018) (hurston’s non-fiction work based on three months of periodic interviews with cudjo lewis, the last survivor of the last slave ship to land on american shores). 40 see dred scott v. sandford, 60 u.s. 393 (1856); see also the antelope, 23 u.s. 66 (1825). 20 columbia journal of race and law [vol. 10 reached a free state, none of us was safe, and it was the obligation, it was a duty, the constitutional responsibility of every single white man, woman or child to deliver us up to the government. i never understood why harriet tubman—the only person who we knew about from the [history] books—had to go all the way to canada. why couldn't she just stay in new york or pennsylvania with the people she brought to freedom? why did she have to go all the way to canada? because the constitution of the united states said that you couldn't. anywhere in this country, you were not safe. you had to go outside of the territorial bounds if you wanted to escape capture. the 13th amendment, passed in 1865, recognized the freedom of all descendants of africans enslaved in the united states and made it illegal to continue slavery, except for that ridiculous “except as punishment for a crime” clause41 but, the 41 the 13th amendment was ratified on december 6, 1865. it reads: “neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the united states, or any place subject to their jurisdiction.” u.s. const. amend. xiii § 1. the exception for parties who have been convicted—otherwise known as the “punishment clause”—has served as a bulwark against claims that forced prison labor amounts to slavery or involuntary servitude and should therefore be prohibited by the thirteenth amendment. federal courts “have held that the main purpose of the amendment was specific—to abolish africanamerican chattel slavery and its incidents” and that the punishment clause “renders any current prisoner’s argument that they are slaves or involuntary servants void and frivolous.” ryan s. marion, prisoners for sale: making the thirteenth amendment case against state private prison contracts, 18 wm. & mary bill rts. j. 213, 214 (2009). while some commenters frame the punishment clause as unrelated to the history of racial discrimination and punishment in the united states, others argue that, in including the punishment clause in the thirteenth amendment, the drafters anticipated the continued “capture and relegation of black bodies back into slavery.” michele goodwin, the thirteenth amendment: modern slavery, capitalism, and mass incarceration, 104 cornell l. rev. 899, 931 (2019). in other words, the thirteenth amendment can be understood as “functionally preserv[ing] slavery as a means of persistent racial subjugation.” id. at 933. special feature let’s talk about reparations 21 13th amendment’s “exception clause” is another whole presentation. no payment was made for stolen labor, land, cultural rape, or economic exploitation. in fact, the dred scott case had been decided scarcely eight years prior to the 13th amendment, in which, a supreme court justice ruled that a black person in america had no rights. none. no rights which a white person was bound to respect. and, neither dred scott nor any other black person could be a citizen of the united states. and, when they said, “we the people” [in the constitution], they meant “we the white people.”42 as of 2017, the average of the minimum daily wages for non-industry prison jobs was a mere 86 cents. wendy sawyer, how much do incarcerated people earn in each state?, prison policy initiative (apr. 10, 2017), https://www.prisonpolicy.org/blog/2017/04/10/wages/. african americans are incarcerated at five time the rate of white people, meaning that prison labor conditions have a disproportionate impact on african americans. criminal justice fact sheet, naacp (last accessed sept. 29, 2019), https://www.naacp.org/criminal-justice-fact-sheet/. in 2018, incarcerated people across the country went on strike. one of their main demands was an “immediate end to prison slavery.” prison strike 2018, incarcerated workers organizing committee (last accessed october 1, 2019), https://incarceratedworkers.org/campaigns/prison-strike-2018. 42 in the 1857 case of dred scott v. sandford, the supreme court held that no african american, whether free or enslaved, could be a citizen of the united states with the right to sue in federal court. the court further held that the missouri compromise, which prohibited slavery and indentured servitude “north of thirty-six degrees thirty minutes north latitude” was unconstitutional. dred scott v. sandford, 60 u.s. 393, 15 l. ed. 691 (1857). the dred scott decision serves as “critical evidence of the comprehensive government involvement in slavery,” and some commentators have argued that the supreme court opinion itself is a harm compensable by reparations. brophy, alfred l., considering reparations for the dred scott case. the dred scott case: historical and contemporary perspectives, christopher bracey, david konig, and paul finkelman, eds., ohio state university press, 2010; u of alabama public law research paper no. 997900. available at ssrn: https://ssrn.com/abstract=997900 (page 16). 22 columbia journal of race and law [vol. 10 although the 13th amendment set no restrictions on the freedom of formally enslaved people, the 14th amendment, passed two-and-a-half years later robbed the newly freed people of some of their hard-won freedom.43 i say this because the 14th amendment imposed the obligations of the united states citizenship upon the african in america without his or her informed consent, or the benefits of that citizenship, and without any meaningful discussion of political alternatives inherent in the international right to self-determination.44 the audacity. how are you going to take a free people and tell them that they have to become part of your family, especially since you had castrated his father, raped his mother, and sold his children off to your relatives. didn't ask him if he wanted to join your family. didn't ask him if he wanted to start another family, his own family. if the african were free, no one—not even the ex-slave holder—could define the african’s future status for him, or impose a status upon him. this was the free person’s [choice] alone; it was the fruit of the right to self-determination. this is why it's pertinent to understand that reparations is not solely an economic concept. it is a political concept as well, and it is a cultural one. reparations are not limited to stolen labor, but also for unjust war, and cultural aggression. the political essence of slavery is not merely found in the economic exploitation of labor, but in the illegal imposition of u.s. jurisdiction on the enslaved or his or her descendants. it can never be overemphasized. i know we don't learn it like this. but it can never be overemphasized that black people are on this soil as a 43 the fourteenth amendment was adopted on july 9, 1868. it reads, in relevant part: “all persons born or naturalized in the united states and subject to the jurisdiction thereof, are citizens of the united states and of the state wherein they reside.” u.s. const. amend. xiv § 1. 44 one of the purposes of the united nations listed in its charter is the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” https://www.un. org/en/sections/un-charter/chapter-i/index.html special feature let’s talk about reparations 23 result of warfare supported by the united states and other nations. [they] are here as a result of vicious colonization, cultural rape, economic exploitation, mental bondage, and terror. and the full ramifications of this historical record must not be endlessly ignored. we need to open up that casket. you see, this is why the claim from the federal government is so important; because every time we ran away—it didn't matter if we just walked off, tiptoed off quietly in the night, or organized elaborate slave insurrections, or if we fled to pennsylvania or new york—they were going to come after us with their armed forces,45 with their militias, and with their dogs. so, they chased us, and they pursued us, and tracked us down, and castrated us, and lynched us, and sought to quell all forms of resistance. when we see the video of the ruthless pursuit, chasing, and blatant gunning down of walter scott in south carolina like a runaway slave.46 when we see the gunning down of michael 45 see frank reeves, confederates ‘slave hunt’ in north a military disgrace, pittsburgh post-gazette (june 30, 2013), https://www.post-gazette.com /news/state/2013/06/30/confederates-slave-hunt-in-north-a-militarydisgrace/stories/201306300221 (“in june 1863, when brig. gen. albert jenkins' cavalry, in the vanguard of the confederate army, galloped into pennsylvania, its aim wasn't only to spy and steal supplies. the soldiers were also determined, as historian margaret creighton notes, to round up africanamericans, whom the confederates regarded as "contraband" that should be returned to "rightful" owners”, https://www.post-gazette.com/news/state/ 2013/06/30/confederates-slave-hunt-in-north-a-militarydisgrace/stories/201306300221; radley balko, boston and militarism: the fugitive slave hearings, huffpost (may 01, 2013), https://www.huffpost.com/entry/boston-and-militarismthe_0_n_3193922?guccounter=1 (“after meeting with his cabinet, filmore ultimately decided federal marshals had the power to summon military troops to help them catch escaped slaves, but that they should first get authorization from a district court judge”). 46 see emily shapiro, kendis gibson, and stephanie wash, walter scott remembered at funeral, week after fatal shooting, abc news (apr. 11, 2015), https://abcnews.go.com/us/walter-scott-remembered-week-fatal-shoo ting/story?id=30245536. 24 columbia journal of race and law [vol. 10 brown in ferguson like a dog in the street.47 when we see eric garner in new york being choked to death,48 and countless others [killed] by those who have sworn to uphold the law, we know that there is a connection between the united states criminal punishment system and the necessity of reparatory justice.49 there is a connection between the disparities in the health care system today and the necessity of reparatory justice.50 there is a connection between the lack of economic 47 see ace johnson, ferguson resident’s video of shooting, the new york times (jul. 29, 2015), https://www.nytimes.com/video/us/100000003059803/ aftermath-of-michael-brown-shooting.html; see also janelle richards, five years after the ferguson, missouri, police shooting of michael brown jr., residents still seeking change, nbc news (aug. 9, 2019), https://www.nbcnews.com /news/us-news/five-years-after-ferguson-missouri-police-shooting-michaelbrown-jr-n1040226. 48 see oliver laughland, eric garner: no charges against white police officer over chokehold death, the guardian (jul. 16, 2019), https://www. theguardian.com/us-news/2019/jul/16/eric-garner-death-new-york-nocharges. 49 african americans are incarcerated at five time the rate of white people. criminal justice fact sheet, naacp (last accessed sept. 29, 2019), https://www.naacp.org/criminal-justice-fact-sheet/; see also michelle alexander, the new jim crow: mass incarceration in the age of colorblindess (2012) (discussing the relationship between mass incarceration and racial control). 50 people of color are less likely to receive preventative health services, receive lower quality care, and have worse health outcomes for certain conditions than white people. for example, african-american mothers die from pregnancy-related complications at rates three to four times greater than white women. martha hostetter and sarah klein, in focus: reducing racial disparities in health care by confronting racism, the commonwealth fund (sept. 27, 2018), https://www.commonwealthfund.org/publications/ newsletter-article/2018/sep/focus-reducing-racial-disparities-health-careconfronting; see also vernellia r. randall, slavery, segregation and racism: trusting the health care system ain't always easy! an african american perspective on bioethics, 15 st. louis u. pub. l. rev. 191, 195 (1996) (tracing the history of racism in the american health care system, including “experimentation, the sickle cell screening initiative, family special feature let’s talk about reparations 25 opportunity and the necessity of reparatory justice.51 there is a connection between the post-traumatic slave syndrome52 and post-incarceration stress syndrome53 and the necessity of reparatory justice. there is a connection, and each harm must be compensated, and it is past time that the federal government's role be emphasized. permit me to share an excerpt from w.e.b. du bois’ black reconstruction in america, just to make it more vivid. he said: they could own nothing; they could make no contracts; they could not testify in court; they could hold no property, nor traffic in property; they could not hire out; they could not legally marry nor constitute families; they could not control their children; they could not appeal from their master; they could be punished at will. they could not testify in court; they could be planning/involuntary sterilization, and the participation of the medical system in the justification of racism and discrimination in society.”). 51 median african-american household wealth declined by over 50 percent between 1983 and 2016. dwyer gunn, why racial economic disparity keeps growing in the u.s., pacific standard (jan. 16, 2019), https://psmag.com/economics/why-racial-economic-disparity-keeps-growingin-the-us. 52 “post traumatic slave syndrome” is a theory of intergenerational trauma coined by dr. joy degruy that traces the “the adaptive survival behaviors” of african americans to the oppression and violence of chattel slavery. dr. joy degruy, post traumatic slave syndrome, joydegruy.com (last accessed sept. 29, 2019), https://www.joydegruy.com/post-traumatic-slave-syndrome. 53 there is a cluster of mental health symptoms associated with individuals who have been released from prison following a life sentence, including chronic post-traumatic stress disorder, institutionalized personality traits, social-sensory deprivation syndrome, and temporal and social alienation. marieke liem & maarten kunst, is there a recognizable post-incarceration syndrome among released “lifers”?, int’l journal of law and psychiatry vol. 36, at 333-337 (may–aug 2013) 26 columbia journal of race and law [vol. 10 imprisoned by their owners, and the criminal offense of assault and battery could not be committed on the person of a slave . . . the slave owed to his master and all is family a respect “without bounds, and an absolute obedience.” this authority could be transmitted to others. a slave could not sue his master; had no right of redemption; no right to education or religion; a promise made to a slave by his master had no force nor validity. children followed the condition of the slave mother. the slave could have no access to the judiciary. a slave might be condemned to death for striking any white person.54 the entire legal apparatus was used by those with the power to do so to establish a legal tradition that stripped blacks of all human dignity. this is genocide. we are entitled to reparations. the compensations we speak of are owed to us, and they continue beyond the era of chattel slavery. [you need to go] down to montgomery, alabama, to the lynching museum that bryan stevenson has erected.55 he poignantly captured just some of the stated rationales for lynchings. “lynched for organizing black voters.” “after voting, white mob attacked and burned home, lynching an elderly mother and her two young daughters.” “lynched by a mob of at least three thousand people.” this is all post slavery. this is the twentieth century. “military veteran lynched and burned alive before thousands of spectators.” “lynched for refusing to turn teenage son over to a mob. son also lynched.” “lynched for 54 w.e.b. du bois, black reconstruction in america: 1860–1880 (first free press ed. 1998) (1935). 55 campbell robertson, a lynching memorial is opening. the country has never seen anything like it., the new york times (apr. 25, 2018), https://www.nytimes.com/2018/04/25/us/lynching-memorial-alabama.html. special feature let’s talk about reparations 27 knocking on a white woman's front door.” “man, wife, and their four children lynched after husband was accused of using inappropriate language with a white woman.” “lynched after refusing to abandon their land to white people.” “lynched for drinking from a white man's well.” “lynched for not allowing a white man to beat him in a fight.” “lynched for protesting the lynching of another black man.” “lynched for frightening a white girl.” “lynched for writing a note to a white woman.” open up the casket! the list goes on and on. you might ask, doesn't the legal doctrine of laches vitiate the debt? laches is based on the maxim that equity aids the vigilant, and if you sleep on your claim and you don't bring it up, you are forever precluded from it.56 no. at no time since the era of enslavement have black people neglected the campaign for reparatory justice. but even if we had, it has been the power of the united states and its refusal to consider reparations for african descendants which has frustrated our efforts heretofore, not any failure to pursue the demands on our part. post-slavery discrimination and jim crow notwithstanding, it is pertinent to recognize that these events occurred not that long ago— really, not that long ago—and they still continue today. i have heard no suggestion that the inheritance laws of the united states be changed so that everyone who is benefitting from a legacy of accumulated wealth forgoes it.57 we also often hear, “i'm innocent and i should not be held liable for things that happened a hundred years ago. that was my great, great grandfather. in fact, i'm a liberal. i go to columbia. i'm in the 56 laches is the “equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed in asserting the claim, when that delay has prejudiced the party against whom relief is sought.” laches, black’s law dictionary (11th ed. 2019). 57 see palma joy strand, inheriting inequality: wealth, race, and the laws of succession, 89 or. l. rev. 453 (2010) (discussion the relationship between inheritance laws and racial wealth inequality). 28 columbia journal of race and law [vol. 10 public interest society. i’m in the national lawyers’ guild.58 i do not have one racist bone in my body.” we all stand on the shoulders of those who came before us. although the present generation of whites may be innocent of what their forefathers and foremothers did as a people, they are in a privileged position because of the actions of their predecessors. each generation passes its debts, as well as its assets, on to the next generation. the heritage which whites enjoy in this country is what has been called white skin privilege—benefiting from a society, a state, and an economic structure which is governed by white supremacy. although we might debate methods of operationalizing this data for measurement, there is no question that caucasians in this country enjoy the fruits of four hundred years of unjust enrichment as a result of the stolen labor of african people.59 another question: what about new immigrants to this country who have no blood or other connection to the enslavement or jim crow era? should they also have to pay? newcomers are entitled to all the rights, privileges, and benefits of american citizenship once they become citizens. america does not say to its new citizens, because you have no ancestral connection to this country, you cannot vote, you cannot sue in court, or you cannot enter into contracts. everyone pays the debt, regardless as to whether or not they had anything to do with creating it. those who question the need for reparations also say, “affirmative action, didn't that make everything alright?” former congressman craig washington was quoted on the floor of the 58 about, national lawyers guild, https://www.nlg.org/about/ (last accessed sept. 28, 2019) (“the national lawyers guild is the nation’s oldest and largest progressive bar association and was the first one in the us to be racially integrated”). 59 michael harriot, yes, you can measure white privilege, the root (apr. 14, 2017), https://www.theroot.com/yes-you-can-measure-white-privilege1794303451. special feature let’s talk about reparations 29 house of representatives when arguing in support of the civil rights act of 1990, as saying nobody's asking for reparations. he said, i'm just asking you to give us the crumbs from the table.60 and, despite the fact that when compared to the debt owed, affirmative action is indeed only crumbs, president george bush sr. vetoed the bill anyway, saying that it encouraged racial quotas.61 another question: slavery ended a long, long time ago, why should the government pay reparations now? the answer is succinct: it should be paid because it is owed. had it been paid before, there would be no past-due debt now. there is no statute of limitations in addressing human rights violations, and debts are neither absolved nor diminished by the passage of time.62 in fact, over time, a debt grows larger with interest. what about africans in the diaspora and the reparations movement? it's an international movement. the descendants of africans in canada, barbados, haiti, jamaica, and brazil are due reparations, but 60 charles krauthammer, essay: reparations for black americans, time (dec. 31, 1990), http://content.time.com/time/magazine/article/0,9171, 972078,00.html. 61 president george bush sr. vetoed the civil rights act of 1990, claiming that, “despite the use of the term ‘civil rights,’” the legislation “actually employ[ed] a maze of highly legalistic language to introduce the destructive force of quotas” into the workplace. ann devroy, bush vetoes civil rights bill, the washington post (oct. 23, 1990), https://www.washingtonpost.com/ archive/politics/1990/10/23/bush-vetoes-civil-rights-bill/cd68a6c4-8529471a-b4f7-08c26cf65ac0/. a modified bill—the civil rights of 1991—was later passed, which stated that only suits for intentional discrimination could be brought under title vi of the civil rights act, rather than suits for workplace practices that created a “disparate impact” against certain groups. https://teachingamericanhistory.org /library/document/civil-rights-act-of-1991/. 62 as mandated by united nations, there can be no statute of limitations for actions constituting “crimes against humanity”—of which enslavement is one—even if such actions would not be in violation on the domestic law of the county in which they were committed. https://www.un.org/en/ genocideprevention/documents/atrocity-crimes/doc.27_convention %20statutory%20limitations%20warcrimes.pdf. 30 columbia journal of race and law [vol. 10 from their particular european colonizers. colonized african countries are also due reparations, as are subjugated african descendants in europe. all of these efforts deserve the solidarity and the moral support of justice lovers everywhere. as we're coming down to the close, the jackpot question, the doozey, the elephant in the room: is reparations just about the money? give me my check. no. no, reparations is not just about money. really, it is not even mostly about money. money might not even be one percent of what reparatory justice is all about. reparations is mostly about making repairs: mental repairs, psychological repairs, cultural repairs, organizational repairs, social repairs, institutional repairs, technological repairs, economic repairs, political repairs, educational repairs, justice system repairs, and health repairs. the list goes on, because indeed a reparations settlement or negotiation can come in as many forms as necessary to equitably address the many forms of injuries sustained from chattel slavery and its continued vestiges. n’cobra taught the world that material forms of reparations can include, has included—and should include in this instance as well—cash payments, but also land. other forms of reparations can include: funds for scholarships and community development, creation of multimedia depictions of history of the descendants of africans enslaved the united states, textbooks for educational institutions to tell history from the african descendants’ perspective, the development of historical monuments and museums, the return of artifacts and art to appropriate people, institutions,63the exoneration of 63 tamara lanier recently filed a lawsuit for ownership of photographs of her ancestors taken in 1850 and currently held in a harvard museum. see anemona hartocollis, who should own photos of slaves? the descendants, not harvard, a lawsuit says, the new york times (march 20, 2019), https://www.nytimes.com/2019/03/20/us/slave-photographs-harvard.html; see also elizabeth tyler bates, contemplating lawsuits for the recovery of slave property: the case of slave art, 55 ala. l. rev. 1109 (2004) (discussing the various legal doctrines that could affect the return of art and artifacts). special feature let’s talk about reparations 31 political prisoners, and the elimination of unjust laws and practices. and finally [people ask,] “should oprah and other wealthy black people get a check?” the answer—[and by] get a check, i'm saying reparations–the answer, in my humble opinion, is short, sweet, and simple: yes. yes, every person of african descent in the united states is entitled to a reparations settlement. and they, like anyone and everyone else, can do with it what they want. i don't know why this issue is so very difficult. reparations—reparatory justice—is a legal remedy. it doesn't matter whether you are wealthy or you are poor. if a wealthy person steps out on the sidewalk and gets struck by a car, there is a redress in the court. the court doesn't say, oh, well, you have a million dollars, so you don't get it. it's a remedy. we need to look at it in that light. i'm going to conclude right here, and just assert that the role that governments, corporations, industries, religious institutions, educational institutions, private estates, and other entities played and play in supporting the institution of slavery and its vestiges, are roles that must not be ignored. they must not be swept under the rug. they must be recognized. they must be acknowledged. they must be discussed. and they must be redressed with respect before we can really begin the process of racial healing, and atonement, and reparatory justice. i call on everybody to open up that casket. thank you. audience question: do you have any views on metrics for identifying membership within individuals of african ancestry? nkechi taifa: yes. that's a real hot topic right now. and, that is why a commission is really important—so that all of the best minds come together and deal with this issue. i might have a personal opinion, but i’d really rather hear the expertise of a lot of different people who have thought about it from a lot of positions, because there has been a considerable amount of time. i mean, i heard one suggestion that if you can relate your ancestry to someone who was a slave then you would be entitled [to reparations]. well, honestly, that's part of the damage. i 32 columbia journal of race and law [vol. 10 literally can't go on my father's side, past my grandparents because i don't know who my father's father was, or his last name. i mean, i know there was enslavement there. i can't relate it to a plantation. i can't go back.64 and, honestly, on my mother's side, my mother's parents came from the islands. okay, my mother was born in new york, but their parents came from the islands. they were not enslaved in the united states, [but] they were uprooted, ancestrally speaking, from africa and brought to the islands and then, once coming here, suffered all of the indignities of the jim crow era. so, it's going to be a tough call. and then with all of the intermarriage, and long before intermarriage, rapes. i can't answer that, but that is one of the primary reasons why a formal, sanctioned commission needs to happen, so we can work out all of those metrics. audience question: what causes of action, if any, can be brought through the courts to pursue reparations? nkechi taifa: we've been in the courts. but, we've been in the courts and each and every time we have been totally and completely kicked out. one basis is laches. one basis is [the] statute of limitations.65 and i told you, there's no statute of 64 see frederick douglass, my bondage and my freedom (urbana, illinois: project gutenberg ed. 2008) (1855) (ebook), http://www.gutenberg.org/ files/202/202-h/202-h.htm (“[g]enealogical trees do not flourish among slaves”); rebecca onion, how do descendants of slaves find their ancestors, slate (sept. 02, 2016), https://slate.com/news-andpolitics/2016/09/how-do-descendants-of-slaves-find-their-ancestors.html (discussing how the absence of such genealogical information can affect policy decisions). 65 in re african-am. slave descendants litig., 471 f.3d 754, 762 (7th cir. 2006) (“in all likelihood it would still be impossible for them to prove injury, requiring as that would connecting the particular slavery transactions in which the defendants were involved to harm to particular slaves. but in any event, suits complaining about injuries that occurred more than a century and special feature let’s talk about reparations 33 limitations on human rights violations. the durban conference that was held in south africa specifically delineated the atlantic slave trade and what came after as a crime against humanity.66 so, we need to make these arguments in the court. i have another whole thing that i do on the issue of genocide. people think it's just killing members of the group. yes, it's killing members of the group, but it is also causing serious bodily or mental harm to members of the group, deliberately inflicting upon the group conditions of life calculated to bring about their destruction in whole or in part. and the genocide convention is the only human rights convention treaty that's actually actionable in u. s. law because there’s implementing legislation.67 why haven’t the lawyers used that as a claim for reparations? a half ago have been barred for a long time by the applicable state statutes of limitations”). 66 see https://www.un.org/wcar/durban.pdf] 67 see 18 u.s.c.a. § 1091 (“genocide”). microsoft word the failure to protect final .docx the failure to protect pregnant pretrial detainees: the possibility of constitutional relief in the second circuit under a fourteenth amendment analysis joella adia jones* pregnant individuals face substantial risks of serious harm when detained while awaiting trial. women and girls make up the fastest-growing population of incarcerated people in the united states. disproportionately of color, many of these women and girls are confined pretrial simply because they cannot afford cash bail. in 2015, the supreme court held in kingsley v. hendrickson that a pretrial detainee’s failure to protect claim should be governed by an objective deliberate indifference standard rather than the subjective standard applied to convicted prisoners asserting eighth amendment violations. in darnell v. pineiro, the second circuit extended the objective deliberate indifference standard for pretrial detainee failure to protect claims beyond kingsley’s context of excessive force. this note considers how the second circuit’s holding in darnell v. pineiro may provide a relief framework for pregnant pretrial detainees suffering fourteenth amendment violations. it is impossible for pregnant detainees to be protected from substantial risks of serious harm while detained. applying an objective deliberate indifference standard should result in successful failure to protect claims brought by pregnant pretrial detainees in the second circuit. * j.d. candidate at columbia law school, expected may 2020. thank you to the columbia journal of race and law staff, especially geanette foster and gelsey beaubrun, for providing such thoughtful guidance during this process. for comments, conversations, patient encouragement, and inspiration, i am grateful to professor mark barenberg. thank you to professor brett dignam, for teaching me everything about absolutely everything and for the opportunity to challenge the consequences of mass incarceration. and to my husband jason and our dog chico, for their love. 140 columbia journal of race and law [vol. 10:2 i. introduction .............................................................. 141 ii. theories of liability for unconstitutional conditions of confinement ...................................... 147 a. the deliberate indifference standard for failure to protect claims alleging eighth amendment violations................................................................ 150 b. the deliberate indifference standard as applied to pretrial detainees’ fourteenth amendment failure to protect claims ..................................................... 154 iii. pretrial confinement and pregnancy .................... 158 a. pretrial detainees are subject to unique harms ...... 162 b. black women are disproportionately justiceimpacted ................................................................. 164 c. the lack of national standards compounds the already-insufficient medical care inside ................ 166 d. pregnant pretrial detainees are subjected to unconstitutional conditions of confinement ........... 170 1. restrictions on movement and physical restraints risk the health and safety of pregnant pretrial detainees ................................ 171 2. pregnant women are subjected to an unalterable environment of high stress that poses a serious risk to their health and safety ................................................................ 177 iv. pregnant women should not be detained ............ 181 a. attempts at relief ................................................... 182 b. habeas class action ............................................... 188 c. bail reform ............................................................ 191 v. conclusion ................................................................. 194 no. 10:2] the failure to protect 141 i. introduction all women deserve to have a safe and dignified pregnancy.1 unfortunately, being pregnant in the united states while detained irreparably limits a person’s ability to have a healthy pregnancy free of the dehumanizing and medically hazardous barriers that confinement schemes systematically impose on women in prison and in jail.2 over the last forty years, the population of incarcerated women in the united states has grown by more than 830%,3 from 26,378 in 1980 to 225,060 in 2017.4 the american carceral system ensnares black women disproportionately.5 black women are also, indiscriminate of socio 1 this note will use the terms “women,” “female,” and “mother” to refer to individuals who are or have at some point been pregnant. not every person with a uterus in prison or jail identifies as female (many identify as transgender, intersex, or gender non-conforming individuals). however, data and documentation about gender identity is sparse and difficult to access. because the cases, studies, and scholarship relied on in this note primarily refer to people who identify with the pronouns she/her/hers, this note will use those pronouns and the terms “women,” “female,” and “mother” when referring to individuals who are pregnant. 2 see barbara a. hotelling, perinatal needs of pregnant, incarcerated women, 17 j. perinatal educ., 37, 37–44 (2008) (examining how pregnant prisoners have health care needs that are minimally met by prison systems). 3 robin steinberg, how cash bail hurts poor women – and what we can do about it, ms. mag. (aug. 13, 2019), https://msmagazine.com/2019/ 08/13/women-dont-belong-in-the-criminal-justice-system/. 4 fact sheet: incarcerated women and girls, 1980 – 2017, the sentencing projpect (june 6, 2019), https://www.sentencingproject.org/wp-content/ uploads/2016/02/incarcerated-womenpublications/incarcerated-women-andgirls.pdf.girls/. 5 connor maxwell & danyelle solomon, mass incarceration, stress, and black infant mortality: a case study in structural racism, ctr. for am. progress (june 5, 2018), https://www.americanprogress.org/issues/race/ reports/2018/06/05/451647/mass-incarceration-stress-black-infant-mortality/ (“[t]he spike in female incarceration has disproportionately affected black women, especially young black women. while black women overall are twice as likely to be imprisoned as their white counterparts, black women ages 18 to 19 are three times more likely to be imprisoned than their white counterparts. if current incarceration trends continue, 1 in 18 black women will be 142 columbia journal of race and law [vol. 10:2 economic or detainment status, more than three times as likely to die from pregnancy related complications than non-hispanic white women.6 in may of 2019, a centers for disease control and prevention report released data that confirmed what health care providers and activists across the country have long recognized: that “significant racial/ethnic disparities in pregnancy-related mortality exist.”7 falling victim to a particularly pernicious mythology that degrades black motherhood,8 black women are more likely to die from preventable pregnancy-related complications than white women.9 for black pregnant women in prisons and jails, these health inequities are irrefutably compounded.10 as outlined in the seminal scholarship of dorothy roberts, racist ideology in america paints black reproduction as a “form imprisoned at some point in their lifetime.”); jamal hagler, 6 things you should know about women of color and the criminal justice system, ctr. for am. progress (mar. 16, 2016), https://www.americanprogress.org/ issues/criminal-justice/news/2016/03/16/133438/6-things-you-should-knowabout-women-of-color-and-the-criminal-justice-system/. 6 emily e. peterson et al., vital signs: pregnancy-related deaths, united states, 2011–2015, and strategies for prevention, 13 states, 2013–2017, u.s. dep’t of health and human servs./ ctrs. for disease control and prevention (may 10, 2019). 7 id. at 423. 8 see dorothy roberts, killing the black body: race, reproduction, and meaning of liberty 8 (2d ed. 2017) (reflecting on the state of reproductive freedom in america and arguing that the legacy of punishing black motherhood continues with the cruel and devaluing treatment of pregnant mothers in prisons and jails). 9 u.s. dep’t of health and hum. servs./ ctrs. for disease control and prevention, racial and ethnic disparities continue in pregnancy-related deaths black, american indian/alaska native women most affected (sept. 5, 2019), https://www.cdc.gov/media/releases/2019/p0905-racial-ethnicdisparities pregnancy-deaths.html. 10 maxwell & solomon, supra note 5, at 4 (“according to the u.s. bureau of justice statistics, 4 percent of women in federal prison and 3 percent of women in state prison are pregnant at the time of incarceration. for these women, negligent correctional procedures can produce high levels of stress and exacerbate pregnancy-related mental health disorders, which are already disproportionately experienced by black women.”). no. 10:2] the failure to protect 143 of degeneracy,” perpetuating the myth that black mothers transmit inferior physical traits and damage their babies in utero because of reckless habits during pregnancy.11 while the modern movement for reproductive justice has gained mainstream visibility,12 the goals of reproductive freedom, health equity, and racial justice have yet to be realized.13 the practice of shackling pregnant women is one of the most glaringly dehumanizing abuses women in american prisons and jails endure.14 the use of restraints on women during pregnancy, labor, childbirth, and the recovery period “poses serious health risks to both mother and baby that increase with each advancing stage of pregnancy.”15 enacted in december of 2018, the “first step act” specifically prohibits the shackling of pregnant prisoners; however, the bill only applies to individuals in federal custody.16 although states across the country have also begun to reform their policies regarding the shackling of pregnant prisoners and detainees,17 twenty states still permit shackling and the use of 11 id. at 9. 12 the history of women of color organizing for reproductive freedom in the united states has a long and distinct history. organizations including sistersong women of color reproductive justice collective, spark reproductive justice now, the black women’s health imperative, and the trust black women partnership have worked to advance what is now commonly known as “reproductive justice.” roberts, supra note 8, at xv-xix. the reproductive justice platform is grounded in the human right to have a child, the right to not have a child, and the right to raise children in safe and sustainable communities. what is reproductive justice?, sistersong women of color reproductive justice collective, https://www.sistersong.net/ reproductive-justice (last visited apr. 15, 2020). 13 roberts, supra note 8, at xix. see also jael silliman et al., undivided rights: women of color organize for reproductive justice (2004). 14 priscilla a. ocen, punishing pregnancy: race, incarceration, and the shackling of pregnant prisoners, 100 calif. l. rev. 1239 (2012). 15 end the use of restrains on incarcerated women and adolescents during pregnancy, labor, childbirth, and recovery, am. psychological assoc. (2017), [hereinafter apa]. 16 first step act of 2018, § 2 pub. l. no. 115-391, 132 stat 5194 (2018). 17 ariz. rev. stat. ann. § 31-601 (2012); cal. penal code § 3407 (west 2013); colo. rev. stat. § 17-1-113.7 (2011); del. code ann. tit. 11, § 6603 144 columbia journal of race and law [vol. 10:2 restraints on incarcerated women during pregnancy, childbirth, and the postpartum period.18 the perinatal shackling of incarcerated women is a particularly abhorrent practice that increases stress and jeopardizes birth outcomes for women inside.19 this note, however, is focused on the substantial risk of serious harm that all forms of government detention pose to pregnant people, no matter the stage of pregnancy or if the pregnant person has been shackled. recent shifts in the deliberate indifference standard for 42 u.s.c. § 1983 failure to protect claims in the second circuit,20 developing procedural arguments for habeas class actions, and current advances (2012); d.c. code § 24-276.02 (2015); fla. stat. § 944.241 (2012); haw. rev. stat. § 353-122 (2011); idaho code § 20-901 (2011); 55 ill. comp. stat. 5/3-15003.6 (2018); la. stat. ann. § 15:744.3 (2012); me. stat. tit. 34-a, § 3102 (2015); md. code ann., corr. servs. § 9-601 (west 2014); mass. gen. laws ch. 127, § 118 (2014); minn. stat. § 241.88 (2015); n.m. stat. ann. § 33-1-4.2 (2009); n.y. correct. law § 611 (2016); 61 pa. cons. stat. § 5905 (2010); 42 r.i. gen. laws § 42-56.3-3 (2011); tex. gov’t code ann. § 501.066 (west 2009); vt. stat. ann. tit. 28, § 801a (2005); wash. rev. code § 72.09.651 (2010); w. va. code § 31-20-30a (2010). 18 apa, supra note 15. see also ginette g. ferszt et al., where does your state stand on shackling of pregnant incarcerated women, 22 nursing for women's health 17, 18 (2018) (explaining that states vary in their antishackling legislation. some states ban the use of shackles during transportation to and from medical facilities, during labor and delivery, and during the immediate postpartum period. other states only ban shackling during labor and delivery. moreover, it is incredibly difficult to monitor how laws and regulations are being implemented in each state due to a lack of uniformity in reporting requirements and data collection). 19 apa, supra note 15. 20 see discussion infra, sections i.a., b. see also kyla magun, a changing landscape for pretrial detainees? the potential impact of kingsley v. hendrickson on jail-suicide litigation, 116 colum. l. rev. 2059, 2060 (2016) (“in 2015, the supreme court held in kingsley v. hendrickson that an objective, rather than subjective, standard applies to determine whether an official’s use of force against a pretrial detainee was excessive—a lesser standard than the subjective standard used for convicted prisoners.” magun also examines “how the kingsley decision and the court’s emphasis that intent is not required for an act to be considered punishment might impact a pretrial detainee’s failure to protect and serious-medical-needs claims.”). no. 10:2] the failure to protect 145 in bail reform underscore how meaningful relief in this realm might take shape. the second circuit has developed a strong tradition of social justice litigation,21 and new york city is home to a large number of notable public interest organizations focused on civil rights.22 according to average daily jail census (adc) figures, 9,148 people were housed in new york city jails in 2017, 7,048 of whom had not yet been sentenced.23 new york also has one of the largest prison systems in the country: the new york state department of corrections and supervision.24 this massive system, combined with an active social justice lawyering community and an array of nationally recognized nonprofit and public interest organizations, creates a ripe environment for prisoners’ rights claims to be brought in the second circuit. conditions of confinement claims have now been recognized in a broad range of contexts. initially, lawsuits were based on the eighth amendment’s prohibition of “cruel and unusual punishment.”25 because pretrial detainees have yet to be convicted, the 21 suzanne b. goldberg, risky arguments in social-justice litigation: the case of sex discrimination and marriage equality, 114 colum. l. rev. 2087, 2089 (2014) (“[s]ocial-justice litigation seeks change on the ground, usually through ending a harmful practice or enjoining enforcement of a discriminatory law… [s]ome [social justice-litigation arguments] ask decisionmakers to revisit and unsettle deeply rooted or widespread social norms or practices. that is, they not only seek a desired practical outcome but also aim to shift a court’s conceptualization of the problem at issue.”). 22 matthew diller & alexander a. reinert, the second circuit and social justice, 85 fordham l. rev. 73, 73–74 (2016) (discussing the second circuit’s reputation for breaking ground on social justice issues, the richness of the legal community, and various national public interest organizations based in new york city (including the american civil liberties union (aclu) and the naacp legal defense fund)). 23new york state jail population 10 year trends: 2008-2017, n.y. state div. of crim. just. servs. (sept. 10, 2018), http://www.criminaljustice.ny.gov/ crimnet/ojsa/jail_pop_y.pdf. 24 diller & reinert, supra note 22, at 85. 25 u.s. const. amend. viii (“excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”). 146 columbia journal of race and law [vol. 10:2 second circuit has joined other circuits in taking the position that pretrial detainees have constitutional rights equal to those asserted by convicted prisoners under the cruel and unusual punishment clause of the eighth amendment.26 pretrial detainees’ allegations of unconstitutional conditions of confinement alleging fourteenth amendment violations may be brought as failure to protect claims based on a standard of deliberate indifference.27 this note focuses specifically on pregnant pretrial detainees and the serious harms pregnant women are subject to when detained while awaiting trial.28 this note argues that the second circuit’s objective reading of the subjective prong (or mens rea prong) of the deliberate indifference test for pretrial detainees softens the standard, 26 see, e.g., darnell v. pineiro, 849 f.3d 17, 29 (2d cir. 2017) (“a pretrial detainee’s claims of unconstitutional conditions of confinement are governed by the due process clause of the fourteenth amendment, rather than the cruel and unusual punishments clause of the eighth amendment” (citing benjamin v. fraser, 343 f.3d 35, 49 (2d cir. 2003); see also city of revere v. mass. gen. hosp., 463 u.s. 239, 244 (1983). a pretrial detainee’s claims are evaluated under the due process clause because, “[p]retrial detainees have not been convicted of a crime and thus ‘may not be punished in any manner—neither cruelly and unusually nor otherwise.’” iqbal v. hasty, 490 f.3d 143, 168 (2d cir. 2007) (quoting fraser, 343 f.3d 35). a detainee’s rights are “at least as great as the eighth amendment protections available to a convicted prisoner.” city of revere, 463 u.s. at 244. 27 darnell, 849 f.3d at 35 (“[t]o establish a claim for deliberate indifference to conditions of confinement under the due process clause of the fourteenth amendment, the pretrial detainee must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety. in other words, the ‘subjective prong’ (or mens rea prong) of a deliberate indifference claim is defined objectively.”). see caiozzo v. koreman, 581 f.3d 63, 70 (2d cir. 2009). 28 the number of individuals detained before trial in the united states has grown significantly over time – 433 percent between 1970 and 2015 – from 82,922 to 441,790. léon digard & elizabeth swavola, justice denied: the harmful effects of pretrial detention, vera inst. of just. (2019), https://www.vera.org/downloads/publications/justice-denied-evidencebrief.pdf. no. 10:2] the failure to protect 147 thus opening the door for pregnant pretrial detainee claims of deliberate indifference to the substantial risk of serious harm to their health and safety, in violation of the fourteenth amendment. in part i, this note will provide an overview of the deliberate indifference standard for pretrial detainees, as recently modified in the second circuit for 42 u.s.c. § 1983 failure to protect claims. part ii argues that being pregnant while detained is an objectively serious medical need that triggers a significant risk of serious harm that cannot be mitigated by improving conditions of confinement. being confined while pregnant, even without the use of shackles or restraints, subjects the pregnant individual to a substantial risk of serious harm. deliberate indifference to that objectively serious and substantial risk is a violation of a pretrial detainee’s rights under the fourteenth amendment. finally, part iii explains why the moment is ripe for increased advocacy on behalf of pregnant pretrial detainees such as habeas class action lawsuits, cash bail reform, and other forms of advocacy. ii. theories of liability for unconstitutional conditions of confinement the notion that incarcerated individuals have, as a consequence of their crimes, forfeited all facets of their liberty is no longer the prevailing view in american jurisprudence.29 29 the uncodified view that prisoners were to be “slave[s] of the state,” was upheld by courts well into the twentieth century. ruffin v. commonwealth, 62 va. 790, 796 (1871) (“a convicted felon, whom the law in its humanity punishes by confinement in the penitentiary instead of with death, is subject while undergoing that punishment, to all the laws which the legislature in its wisdom may enact for the government of that institution and the control of its inmates. for the time being, during his term of service in the penitentiary, he is in a state of penal servitude to the state. he has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. he is for the time being the slave of the state. he is civiliter mortuus; and his estate, if he has any, is administered like that of a dead man”); but cf. in re bonner, 151 u.s. 242 (1894). 148 columbia journal of race and law [vol. 10:2 however, this change is relatively recent, with much of the historical legacy of prisons and prisoners rooted in the institution of american chattel slavery.30 in 1948, the supreme court declared that incarceration involves the limitation of “many” rights and privileges of those incarcerated but not all rights and privileges.31 in 1972, the court overtly acknowledged the constitutional rights of prisoners, stating: federal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ including prisoners. we are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. but persons in prison, like other individuals, have the right to petition the government for redress of grievances[.]32 the court also concluded that detainees should be protected while in government custody and that the fourteenth amendment protects pretrial detainees from any form of punishment, cruel and unusual or otherwise. 33 30 prison labor and the thirteenth amendment, equal just. initiative (jan. 20, 2019), https://eji.org/history-racial-injustice-prison-labor. 31 price v. johnston, 334 u.s. 266, 285 (1948) (“lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system”). 32 cruz v. beto, 405 u.s. 319, 321 (1972); see also procunier v. martinez, 416 u.s. 396, 404–05 (1974) (invalidating state prison mail censorship regulations). 33see graham v. connor, 490 u.s. 386, 395 n.10 (1989) (“it is clear […] that the due process clause protects a pretrial detainee from the use of excessive force that amounts to punishment”); see also, deshaney v. winnebago county dep't of soc. servs., 489 u.s. 189, 199–200 (1989) (“[w]hen the state takes a person into its custody and holds him there against his will, the constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being . . . the rationale for this principle is simple enough: when the state by the affirmative exercise of its power so restrains an no. 10:2] the failure to protect 149 although convicted prisoners and pretrial detainees are both protected from conditions of confinement that violate the constitution, the protections are distinct for each group.34 convicted prisoners may assert, against a municipality or correctional official, a failure to protect claim of deliberate indifference35 to a serious medical need or substantial risk of serious harm under the eighth amendment’s prohibition of “cruel and unusual punishment.”36 for pretrial detainees, failure to protect claims relying on the deliberate indifference standard are governed by the due process clause of the fourteenth amendment.37 pretrial detainees are protected by the due process individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for basic human needs -e.g., food, clothing, shelter, medical care, and reasonable safety it transgresses the substantive limits on state action set by the eighth amendment and the due process clause”). 34 u.s. const. amend. viii; u.s. const. amend. xiv, § 1. see also david c. gorlin, evaluating punishment in purgatory: the need to separate pretrial detainees' conditions of-confinement claims from inadequate eighth amendment analysis, 108 mich. l. rev. 417 (2009). 35 estelle v. gamble, 429 u.s. 97, 104–05 (1976) (recognizing deliberate indifference as a “cognizable” claim for an eighth amendment violation: “we therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’” proscribed by the eighth amendment. this is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983”) (internal citations omitted); see also wilson v. seiter, 501 u.s. 294 (1991) (noting that deliberate indifference on the part of a prison official can constitute an eighth amendment violation). 36 u.s. const. amend. viii. 37 darnell v. pineiro, 849 f.3d 17, 29 (2d cir. 2017) (a pretrial detainee’s claims are evaluated under the fourteenth amendment due process clause because “[p]retrial detainees have not been convicted of a crime and thus ‘may not be punished in any manner—neither cruelly and unusually nor otherwise.’” (quoting iqbal v. hasty, 490 f.3d 143, 168 (2d cir. 2007)). the court went on to explain that [“[a] detainee’s rights are at least as great as the eighth amendment protections available to a convicted prisoner.” id. at 29 (internal quotation marks omitted) (quoting city of revere v. mass. gen. hosp., 463 u.s. at 244 (1983)). 150 columbia journal of race and law [vol. 10:2 clause because they have not yet been found guilty and therefore cannot yet be punished.38 both convicted prisoners and pretrial detainees can seek relief against state prison officials or a municipality under 42 u.s.c. § 1983.39 those in federal custody may bring an action against one or more federal agents by filing a bivens suit.40 a pretrial detainee can establish a failure to protect claim based on conditions of confinement in two ways: (1) by proving a prison official or municipality’s deliberate indifference to the inhumane condition, or (2) by proving the condition amounts to punishment.41 the supreme court has cautioned, “[n]othing about our interpretation of the proper standard for deliberate indifference for due process purposes should be construed as affecting the standards for establishing liability based on a claim that challenged conditions are punitive.”42 while it may rightly be argued that being detained while pregnant amounts to punishment, this note focuses on the deliberate indifference theory of liability recently affirmed in the second circuit, as it presents an opportunity for prison reform and activism. a. the deliberate indifference standard for failure to protect claims alleging eighth amendment violations43 38 id. 39 42 u.s.c. § 1983 (1871). 40 bivens v. six unknown named agents of fed. bureau of narcotics, 403 u.s. 388 (1971). 41 darnell, 849 f.3d at 34 n.12. 42 id. 43 the eighth amendment does not govern failure to protect claims brought by pretrial detainees. in order to distinguish pretrial detainee claims under the fourteenth amendment, it is necessary to examine how failure to protect litigation was first developed for convicted individuals alleging eighth amendment violations. no. 10:2] the failure to protect 151 the eighth amendment ban on cruel and unusual punishment has gradually been read to encompass more than direct physical punishments.44 the eighth amendment's ban on inflicting cruel and unusual punishments, made applicable to the states by the fourteenth amendment, proscribe[s] more than physically barbarous punishments. it prohibits penalties that are grossly disproportionate to the offense, as well as those that transgress today's broad and idealistic concepts of dignity, civilized standards, humanity, and decency. confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under eighth amendment standards. 45 by the 1970’s, the eighth amendment was invoked to protect not only against direct physical abuse by prison officials, but also against other unconstitutionally punitive conditions of confinement such as excessive heat or cold.46 around the same time, courts also began 44 see andrew b. mamo, the dignity and justice that is due to us by right of our birth: violence and rights in the 1971 attica riot, 49 harv. c.r.-c.l. l. rev. 531, 542 (2014) (discussing the uncertain ground on which the eighth amendment was interpreted in the late nineteen sixties and the concept of “evolving standards of decency” as articulated in trop v. dulles, 356 u.s. 86, 101 (1958)). 45 hutto v. finney, 437 u.s. 678, 685 (1978) (internal quotation marks omitted) (quoting estelle v. gamble, 429 u.s. 97, 102 (1976); weems v. united states, 217 u.s. 349, 367 (1910). 46 see, e.g., wright v. mcmann, 387 f.2d 519, 526 (2d cir.1967) (where the second circuit vacated a dismissal on the pleadings concerning allegations that inmates were deliberately exposed to bitter cold), see also gregg v. georgia, 428 u.s. 153, 171 (1976) (the court has not confined the prohibition embodied in the eighth amendment to “barbarous” methods that were generally outlawed in the 18th century. instead, the amendment has been interpreted in a flexible and dynamic manner), see generally furman v. georgia, 408 u.s. 238 (1976) (powell, j., dissenting); trop v. dulles, 356 u.s. 86 (1958) (plurality opinion)). 152 columbia journal of race and law [vol. 10:2 to recognize that acts by prison officials could be deemed unconstitutionally punitive based on their mental consequences.47 estelle v. gamble concretized the deliberate indifference threshold concerning prisoners’ rights to adequate medical care.48 in estelle, the court held that deliberate indifference on the part of prison officials or a municipality was enough to establish an eighth amendment violation stemming from inadequate medical care.49 deliberate indifference claims under the eighth amendment cannot be based solely on negligence, though no permanent injury requirement exists. for convicted prisoners, the viability of a deliberate indifference claim turns on the state actor’s state of mind.50 a prison official must have the requisite mens rea – not “mere negligence” but something closer to or equaling recklessness.51 courts further recognized claims of deliberate indifference to psychiatric healthcare needs (not just the mental consequences associated with being confined) as eighth amendment violations. the second circuit “has explicitly recognized that medical care encompasses mental health care and that the denial of medical care with respect to ‘deliberate indifference’ encompasses psychological problems.”52 applying the deliberate indifference standard in estelle to psychiatric healthcare, the second circuit concluded that psychiatric 47 see, e.g., wright v. mcmann, 387 f.2d 519 (2d cir. 1967) (although the mental suffering associated with solitary confinement was not in itself grounds for a finding of a constitutional violation, mental suffering was found to be a legitimate consequence of “subhuman conditions” in the same way that freezing or extremely hot temperatures may be), see also jackson v. bishop, 404 f.2d 571, 579 (8th cir. 1968) (whippings were found to be unconstitutional in part because of psychological consequences). 48 estelle , 429 u.s. at 104 (stating “deliberate indifference to serious medical needs of prisoners” amounts to an eighth amendment violation). 49 id. 50 see, e.g., wilson v. seiter, 501 u.s. 294, 297 (1991); farmer v. brennan, 511 u.s. 825, 826 (1994). 51 farmer, 511 u.s. 825 (1994) (holding that subjective recklessness applies to eighth amendment violations. in farmer, a prison physician was found to have been deliberately indifferent to the plaintiff’s serious medical needs). 52 young v. choinski, 15 f. supp. 3d 194, 208 (d. conn. 2014) (internal citations omitted). no. 10:2] the failure to protect 153 care is “an integral part of medical care,” requiring that such care be provided to prisoners.53 in farmer v. brennan, the supreme court applied the subjective deliberate indifference standard discussed in estelle to a failure to protect context, holding that consciousness was required in order to assert a failure to protect claim of deliberate indifference under the eighth amendment.54 this subjective knowledge requirement was consistent with the explanation the court provided in wilson as to why the deliberate indifference claim was rejected in estelle.55 the estelle court rejected the deliberate indifference claim because it “failed to establish that [the prison doctor] possessed a sufficiently culpable state of mind.”56 53 langley v. coughlin, 888 f.2d 252, 254 (2d cir.1989); see also guglielmoni v. alexander, 583 f.supp. 821, 826–27 (d.conn. 1984) (“[the] deliberate indifference standard of estelle is equally applicable to the constitutional adequacy of psychological or psychiatric care provided at a prison;” and “the eighth amendment reaches psychiatric care as a component or aspect of medical care”) (citations and internal quotation marks omitted); young, 15 f. supp. 3d 194 at 208 (“after all, mental health care is a subset, or specialty, of medical care. it thus follows that deliberate indifference by a prison official to an inmate's attempt to harm himself falls squarely within the estelle standard). 54 farmer, 511 u.s. 825 (1994) (holding that eighth amendment liability requires subjective knowledge of risk, establishing a “subjective recklessness standard.” the court held that “a prison official cannot be found liable under the eighth amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety. [t]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference”) id. at 837. 55 wilson, 501 u.s. at 297. 56 id. (the court expands on their reasoning for denying the deliberate indifference claim against the prison doctor) (“in estelle v. gamble…[w]e rejected … the inmate's claim in that case that prison doctors had inflicted cruel and unusual punishment by inadequately attending to his medical needs— because he had failed to establish that they possessed a sufficiently culpable state of mind. since, we said, only the unnecessary and wanton infliction of pain implicates the eighth amendment, a prisoner advancing such a claim must, at a minimum, allege deliberate indifference” to his serious” medical needs. it is only such indifference that can violate the eighth amendment; 154 columbia journal of race and law [vol. 10:2 although the subjective indifference standard originated in estelle, the supreme court took almost two decades to articulate the two-prong test in farmer that distinctly defined the standard.57 with farmer, a clear two-prong test emerged for eighth amendment failure to protect claims. noting their previous discussion in wilson,58 the farmer court held that in order to find an eighth amendment violation in a failure to protect claim based on the deliberate indifference standard there must be: (1) an objective “sufficiently serious” deprivation, and (2) the prison official must have had a “sufficiently culpable state of mind.”59 while circuit courts generally accepted the first, “objective,” prong of the farmer test, the second, “subjective,” prong caused considerable divergence among the lower courts when it came to the test’s application to pretrial detainees. b. the deliberate indifference standard as applied to pretrial detainees’ fourteenth amendment failure to protect claims as previously mentioned, pretrial detainees are not protected by the eighth amendment because they have not yet been adjudged guilty of any crime, and thus cannot yet be punished by the state.60 pretrial detainees’ failure to protect allegations of inadvertent failure to provide adequate medical care or of a negligent diagnos[is] simply fail to establish the requisite culpable state of mind”) (internal citations omitted)). 57 see magun, supra note 20, at 2060 (discussing how the kingsley v. hendrickson decision might affect pretrial detainee failure to protect claims). 58 in wilson, the court recognized “objective” and “subjective” components in an eighth amendment context. wilson v. seiter, 501 u.s. 294 (1991). 59 farme, 511 u.s. at 826, 834-34. 60 darnell v. pineiro, 849 f.3d 17, 34 (2d cir. 2017) (“the language of the two clauses differs, and the nature of the claims often differs. and, most importantly, pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less “maliciously and sadistically. thus, there is no need here, as there might be in an eighth amendment case, to determine when punishment is unconstitutional”) (internal citations omitted); see also ingraham v. wright, 430 u.s. 651, 671 n.40 (1977) (“eighth amendment no. 10:2] the failure to protect 155 claims using the deliberate indifference standard fall under the substantive due process clause of the fourteenth amendment.61 similar to those of convicted prisoners, pretrial detainee failure to protect claims are often based on deplorable conditions of confinement (excessive force, health and sanitary needs, mental health abuses, etc.). in june of 2015, the supreme court used an objective standard to evaluate whether intentional force used against a pretrial detainee was excessive (violating the detainee’s fourteenth amendment rights).62 in kingsley, plaintiff brought a § 1983 action against two county jail officers, alleging that the officers used excessive force when removing him from his cell, in violation of his rights under the fourteenth amendment’s due process clause.63 the kingsley court considered whether the force used by the officers should be evaluated using a subjective standard—did the officers know the force was unreasonable—or an objective standard—the force used was objectively unreasonable despite the officers’ state of mind.64 the court ruled in favor of the objective test for the second prong of the deliberate indifference test, which significantly altered the legal landscape for pretrial detainees and future claims of excessive force.65 not only did kingsley lower the burden of scrutiny is appropriate only after the state has complied with the constitutional guarantees traditionally associated with criminal prosecutions); see also bell v. wolfish, 441 u.s. 520, 535-36 (1979) (“a person lawfully committed to pretrial detention has not been adjudged guilty of any crime. he has had only a judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest”) (internal quotation marks omitted) (quoting gerstein v. pugh, 420 u.s. 103, 115 (1975)). 61 darnell, 849 f.3d at 29. 62 kingsley v. hendrickson, 135 s.ct. 2466 (2015). 63 id. at 2471. 64 id. at 2472 – 73. 65 rosalie berger levinson, kingsley breathes new life into substantive due process as a check on abuse of government power, 93 notre dame l. rev 357 (2017) (discussing the objectively reasonable deliberate indifference test in difference between pretrial detainees and convicted inmates and the effects of kingsley v. hendrickson and the standard’s effect on future § 1983 claims 156 columbia journal of race and law [vol. 10:2 proof for pretrial detainees—who are four times as likely to sentenced to prison than defendants who were not detained prior to trial—66 the ruling was also in line with the standard for excessive force claims brought under the fourth amendment under graham v. connor.67 an officer’s subjective knowledge of whether her conduct was unreasonable was no longer a requirement for the second prong of the deliberate indifference test.68 after kingsley, it was unclear whether the supreme court would extend the objective reading of the second prong of the deliberate indifference test to claims outside of the excessive force context. pretrial detainees with claims involving unsanitary conditions, overcrowding, insufficient medical care, and harmful psychological conditions could all benefit from an objective reasonableness standard for the second prong of the deliberate indifference test.69 circuits clashed in their post-kingsley treatment of failure to protect claims alleging unconstitutional conditions of confinement not involving excessive use of force.70 brought by pretrial detainees that extend beyond claims of excessive force (broader conditions of confinement claims). 66 lauren-brooke eisen & inimai chettiar, criminal justice: an election agenda for candidates, activists, and legislators, brennan ctr. for just. 14 (2018), https://www.brennancenter.org/sites/default/files/ publications/ criminal_justice_an_election_agenda_for_candidates_activists_and_legi slators%20.pdf. 67 graham v. connor, 490 u.s. 386, 388 (1989) (holding that excessive force claims brought by free citizens are “properly analyzed under the fourth amendment's objective reasonableness standard, rather than under a substantive due process standard”) (internal citation and quotation marks omitted). 68 for convicted prisoners, the second prong still has a subjective knowledge requirement. 69 see, e.g., spencer v. bouchard, 449 f.3d 721 (6th cir. 2006); benjamin v. fraser, 343 f.3d 35 (2d cir. 2003; owens v. scott county jail, 328 f.3d 1026 (8th cir. 2003); bell v. wolfish, 441 u.s. 520 (1979); hubbard v. taylor, 399 f.3d 150 (3d cir. 2005). 70 see michael s. dibattista, a force to be reckoned with: confronting the (still) unresolved questions of excessive force jurisprudence after kingsley, 48 colum. hum. rts. l. rev. 203, 213 (2017) (“although the court in graham put to rest the dispute over which amendment protects pretrial detainee no. 10:2] the failure to protect 157 although the kingsley court premised its decision on bell v. wolfish, a conditions of confinement case and not an excessive force case, there was still confusion among the lower courts surrounding the standard beyond excessive force claims.71 some post-kingsley courts continued to discuss pretrial detainees within a subjective framework, while some courts have declined to address the issue at all, arguing that the resolution of the claims did not require an analysis of the subjective versus objective debate.72 in february 2017, the second circuit applied the objective deliberate indifference ruling from kingsley, agreeing with the ninth circuit’s eventual resolution in castro73 that pretrial detainees asserting claims against prison officials and municipalities should not be constrained by the intent requirement in the second prong of the farmer test.74 darnell v. pineiro involved a conditions of confinement claim brought by pretrial detainees asserting that facility officials were deliberately indifferent to excessive force claims, it failed to articulate the standard for determining whether a violation of the fourteenth amendment has occurred. as a result, a large circuit split endured for years, with some circuits applying an objective reasonableness test similar to the fourth amendment standard, and others applying a subjective intent test similar to the eighth amendment standard”) (internal citations omitted). 71 margo schlanger, the constitutional law of incarceration, reconfigured, 103 cornell l. rev. 388, 409-15 (2018) (discussing pre and post-kingsley doctrine regarding pretrial conditions of confinement cases and whether an objective reasonableness standard is applied). 72 id. at 411-12. 73 just weeks after the supreme court decided kingsley, the ninth circuit was met with the case of castro v. county of los angeles. 833 f.3d 654 (9th cir. 2015). castro, a pretrial detainee, brought a failure to protect claim against corrections officials after he was injured in an attack by another inmate. the ninth circuit panel held that kingsley had “no bearing on the failure to protect claims” currently before them because the standard for an excessive force claim was “completely different” from the standard for a failure to protect claim (deliberate indifference to a substantial risk of serious harm). id. at 655. on rehearing en banc, the ninth circuit reversed, embracing the use of an objective standard in pretrial detention failure to protect cases. castro v. cty. of los angeles, 833 f.3d 1060, 1069 (9th cir. 2016) (en banc). 74 darnell v. pineiro, 849 f.3d 17 (2d cir. 2017). 158 columbia journal of race and law [vol. 10:2 unconstitutional conditions of confinement in violation of their rights under the due process clause of the fourteenth amendment.75 the second circuit held that after the first prong of the deliberate indifference test is met (objectively unreasonable conditions), a pretrial detainee’s claim can prevail against a defendant-official if the risk to the detainee was objectively obvious.76 the claim is successful if the pretrial detainee can show that the officer either acted intentionally to impose the condition or “recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.”77 it is the “should have known” piece of the language that propels the standard into objective territory. iii. pretrial confinement and pregnancy unconstitutional conditions of confinement have undeniably adverse consequences for pregnant pretrial detainees. despite the fact that women make up the fastest-growing segment of incarcerated people in the united states,78 the carceral system has failed to adequately adapt to the critical and unique needs of women and girls inside.79 although legislative victories limiting the use of 75 id. 76 id. at 35 ([“t]he ‘subjective prong’ (or mens rea prong) of a deliberate indifference claim is defined objectively.”). 77 id. 78 wendy sawyer, the gender divide: tracking women’s state prison growth, prison pol'y initiative (jan. 9, 2018), https://www.prisonpolicy.org/ reports/womenovertime.html. 79 jennifer g. clarke & rachel e. simon, shackling and separation: motherhood in prison, 15 [j]ama of ethics, 779, 780 (sept. 2013). (“the practice of shackling pregnant women and women in labor is principally a remnant of protocols designated for male institutions and is not based on genuine security concerns. because the number of male prisoners no. 10:2] the failure to protect 159 restraints on pregnant women are on the rise,80 many of these laws are not properly implemented.81 jails and prisons across the country continue to subject female inmates and detainees to extremely harmful conditions.82 the use of even the most limited restraints still overwhelmingly exceeds the number of female prisoners—prisons and jails are over 90 percent male—these institutions have not prioritized the appropriate health and safety protocols for women during transport to a medical facility”) (internal citations omitted). 80 national task force on the use of restraints with pregnant women under correctional custody, best practices in the use of restraints with pregnant women under correctional custody, u.s. dep’t of just. (2014), http://www.nasmhpd.org/sites/default/files/best_practices_use_of_restraints _pregnant%282%29.pdf. (in 2014, the u.s. department of justice published best practices in the use of restraints with pregnant women and girls under correctional custody after convening a task force on the use of restraints on pregnant women in correctional custody. the recommendations were a step in the right direction, but the standards are not mandatory and there is no current system for tracking which institutions have followed or maintained the standards in the report). see also ferszt, supra note 18. 81 aclu briefing paper: the shackling of pregnant women & girls in u.s. prisons, jails & youth detention centers, am. civ. liberties union reproductive freedom project, https://www.aclu.org/other/aclu-briefingpaper-shackling-pregnant-women-girls-us-prisons-jails-youth-detentioncenters (last visited apr. 15, 2020) [hereinafter aclu briefing paper]. 82 see hotelling, supra note 2, at 37-44 (“with the growing number of incarcerated women who are pregnant, it is important to recognize that failing to provide preventive and curative health care for these women may cost more to society than funding programs that might improve attachment and parenting behaviors, facilitate drug rehabilitation, and reduce recidivism among this population. the current prison system increases victimization, learned helplessness, passivity, shame, and violation of human rights. posttraumatic stress is elevated by strip-and-cavity searches, handcuffs and shackles, confinement to small cells, isolation, and control by predominantly male staff. incarcerated women endure further damage and re-traumatization with the lack of privacy in a patriarchal system that constantly observes them in their sleep and personal care and with separation from their children […] the vast majority of incarcerated women have abused alcohol and/or drugs; yet, prison systems are deficient in providing therapy for any addictions. additionally, […] pregnant inmates lack adequate prenatal care offering medical, nutritional, educational, environmental, and family-support services. when birth takes place in prison, separation of mother and child occurs almost immediately, 160 columbia journal of race and law [vol. 10:2 results in substantial harm to pregnant detainees. 83 the profound and unrelenting racism that has both constructed and perpetuated the conditions of confinement experienced by black women in america only serves to exacerbate this harm.84 proponents of the practice of shackling pregnant prisoners and detainees rely on flimsy arguments, citing safety concerns for correctional officers, health care professionals, and the general public.85 a significant body of scholarship refutes these claims and has contributed crucial analyses on the negative effects of perinatal shackling.86 organizations such as amnesty international and the american civil liberties union (aclu) have published data and detailed reports on the health risks experienced by incarcerated individuals.87 the american college of obstetricians and which further compromises critical bonding period”) (internal quotation marks omitted). see also janice f. bell et al., jail incarceration and birth outcomes, 81 j. urb. health 630 (2004) (examining the relationships between jail incarceration during pregnancy and infant birth weight, preterm birth, and fetal growth restriction). 83 see ferszt, supra note 18, at 18. 84 roberts, supra note 8, at 311 (arguing that every policy concerning reproduction should be scrutinized to “determine its impact on blacks…[r]ace has profoundly influenced every aspect of childbearing in america…there is good cause to suspect a racial agenda behind programs that affect reproduction and to be concerned about these programs; effect on the status of black people.”). 85 aclu briefing paper, supra note 81. 86 dorothy e. roberts, priscilla a. ocen, rachel roth, and carolyn sufrin are among the many prominent scholars writing on the shackling of pregnant women and larger systems of oppression concerning women of color and the criminal justice system. there has also been a significant amount of coverage in the media in recent years. see generally, adam liptak, prisons often shackle pregnant inmates in labor, n.y. times, mar. 2, 2006, at a16. for more leading scholarship, see brett dignam and eli y. adashi, health rights in the balance: the case against perinatal shackling of women behind bars, 16 health & hum. rts. j. 14–23 (2014); geraldine doetzer, hard labor: the legal implications of shackling female inmates during pregnancy and childbirth, 14 wm. & mary j. women & l. 363, 363–392 (2008). 87 see usa: rights for all: “not part of my sentence”: violations of the human rights of women in custody, amnesty int’l (1999), https://www. amnestyusa.org/reports/usa-not-part-of-my-sentence-violations-of-the no. 10:2] the failure to protect 161 gynecologists, the american psychological association, the national commission on correctional health care, the rebecca project for human rights, and the national women’s law center are also among a growing list of prominent organizations that oppose the use of restraints during labor.88 this section of the note will discuss the particular case of pregnant pretrial detainees, women in jail who have not been convicted of a crime and who simply await the adjudication of their case. a much larger proportion of the total population of incarcerated women are held in jail (versus prison) than their male counterparts.89 not only do conditions of confinement, even in their most optimistic incantations, amount to punishment, they are also grounds for viable failure to protect claims using the objective deliberate indifference standard now followed in the second circuit. no amount of reform inside could alter what is, at its core, a system that is deliberately indifferent to the serious harms imposed on pregnant human-rights-of-women-in-custody/; state standards for pregnancy-related healthcare and abortion for women in prison, am. civil liberties union, https://www.aclu.org/state-standards-pregnancy-related-health-care-andabortion-women-prison-0#hd1 (“women in labor need to be mobile so that they can assume various positions as needed and so they can quickly be moved to an operating room. having the woman in shackles compromises the ability to manipulate her legs into the proper position for necessary treatment. the mother and baby's health could be compromised if there were complications during delivery, such as hemorrhage or decrease in fetal heart tones.”); . 88 committee opinion, heath care for pregnant and postpartum incarcerated women and adolescent females, 511 obstetrics & gynecology 1198–1202 (nov. 2011) [hereinafter acog comm. op.]; the restraint of pregnant inmates, am. psychological assoc., 47 monitor on psychol. 26 (2016); mothers behind bars: a state-by-state report card and analysis of federal policies on conditions of confinement for pregnant and parenting women and the effect on their children, rebecca project for hum. rts. & nat’l women’s law ctr. (2010), https://www.nwlc.org/ sites/default/files/pdfs/mothersbehindbars2010.pdf. 89 twice the number of women are held in state prisons and jail than the proportional equivalent for men. wendy sawyer, the gender divide: tracking women’s state prison growth, prison pol'y initiative (jan. 9, 2018), https://www.prisonpolicy.org/reports/women_overtime.html. 162 columbia journal of race and law [vol. 10:2 people in confinement. this section examines the totality of harms inherent in confinement schemes beyond the practice of shackling. a. pretrial detainees are subject to unique harms no other country in the world detains individuals before trial at a higher rate than the united states.90 the disproportionately high rate of pretrial detainment in the united states is in part due to the widespread use of cash bail and the fact that many defendants are at a severe socioeconomic disadvantage.91 cash bail discriminates against people of color;92 these disparities are compounded by economic inequalities.93 without the economic resources to pay bail or bond fees, individuals coming from marginalized communities bear a disparate burden, even though the constitution supposedly prohibits the punishment of people simply because they are lowincome.94 in bearden v. georgia, the supreme court articulated this point: 90 will dobbie, jacob goldin & crystal s. yang, the effects of pretrial detention on conviction, future crime, and employment: evidence from randomly assigned judges, 108 am. econ. rev. 201 (2018) (noting that even in 2013, among the eleven million individuals detained prior to conviction around the world, the united states leads all other countries with approximately half a million detained individuals, which is double the next country, china). 91 id. 92 various studies have found that people of color are treated more severely than white people during pretrial detainment decision-making processes and also that black and latino people are more likely than white people to be detained without bail. digard & swavola, supra note 28, at 7 (citing the 2003 and 2005 studies by schlessinger & deluth, “racial and ethnic differences” and “racial and ethnic disparity,” which both incorporated variables including race, ethnicity, age, offense seriousness, offense type, and criminal justice history into their regression models). 93 adureh onyekwere, how cash bail works, brennan ctr. for just. (dec. 10, 2019), https://www.brennancenter.org/our-work/research-reports/howcash-bail-works. 94 digard & swavola, supra note 28; see also bearden v. georgia, 461 u.s. 660, 671 (1983). no. 10:2] the failure to protect 163 [t]he state cannot justify incarcerating a probationer who has demonstrated sufficient bona fide efforts to repay his debt to society, solely by lumping him together with other poor persons and thereby classifying him as dangerous. this would be little more than punishing a person for his poverty.95 the court then concluded that although the state has clear interests in deterring future criminal behavior, those interests in deterrence can often be achieved in other ways.96 data show that pretrial detention can negatively impact the outcome of a defendant’s case.97 pretrial detainee defendants have been found to be over four times more likely to be sentenced to jail and over three times more likely to be sentenced to prison than defendants who are released at some point before trial.98 because pretrial detainees have already been experiencing horrific conditions awaiting trial, they are often more likely to take a plea deal for a lower charge with a shorter sentence rather than risk a higher charge and longer sentence at trial.99 defendants often plead guilty even if they could successfully defend against the charges in court.100 the collateral consequences of pleading guilty are substantial, 95 bearden, 461 u.s. at 671. 96 id. at 671-672. 97 eisen & chettiar, supra note 66; see also dobbie et al., supra note 90, lowenkamp et al., infra note 98. 98 christopher t. lowenkamp et al., investigating the impact ofpretrial detention on sentencing outcomes, laura and john arnold found. 10 (2013), http://www.arnoldfoundation.org/wp-content/uploads/ 2014/ 02/ljaf_report_state-sentencing_fnl.pdf. 99 eisen & chettiar, supra note 66, at 14. 100 juleyka lantigua-williams, why poor, low-level offenders often plead to worse crimes, the atlantic (jul. 24, 2016), https://www.theatlantic.com/ politics/archive/2016/07/why-pretrial-jail-can-mean-pleading-toworsecrimes/491975/. 164 columbia journal of race and law [vol. 10:2 however, including a loss of ability to vote, find a job, apply for school, and qualify for public benefits.101 b. black women are disproportionately justiceimpacted the challenges that pregnant pretrial detainees face reflect broader systems of racial and social hierarchy that operate to incarcerate women—in particular women of color. the criminal justice system perpetuates american racial and socioeconomic disparities unapologetically and without pretense. in 2017, black women were incarcerated at nearly twice the rate of white women (92 per 100,000 for black women versus forty-nine per 100,000 for white women).102 the disparity also exists for girls. at a rate of 110 per 100,000, black girls are three-and-a-half times more likely to be imprisoned than white girls (at a rate of thirty-two per 100,000).103 girls comprised a growing proportion of all teen arrests between 1980 and 2017, and with black girls becoming incarcerated at such a disproportionately high rate, the result is a devastating increase in the number of black girls inside.104 detained black women are subjected to a unique form of punitive humiliation,105 one that is consistent with the reproductive 101 id. see also dobbie et al., supra note 90 (analyzing data from over 420,000 criminal defendants from two large, urban counties in connection to administrative court and tax records, criminal case outcomes, pretrial flight, recidivism, foregone earnings and the loss of social benefits). 102 the sentencing project, supra note 4, at 2. 103 id. at 5. 104 id. 105 roberts, supra note 8, at xviii (“thousands of black women in prison today – mostly for nonviolent offensesneed treatment for substance abuse, support for their children, or safety from violent relationships, not criminal punishment. locking up astronomical numbers of black [] women is a powerful way of restricting reproductive liberty and transferring political inequality to the next generation”); see also jallicia jolly, reproductive control: the enduring state violence against incarcerated black women, rewire.news (jun. 14, 2018), https://rewire.news/article/2018/06/14/reproductivecontrol-enduring-state-violence-incarcerated-black-women/(discussing experiences no. 10:2] the failure to protect 165 violence and racial, gender, and sexual oppression that black women experience in a range of institutional contexts.106 slavery initiated a centuries-long tradition of institutionalized racial violence and the regulation of black women’s bodies.107 as dorothy roberts writes: the brutal domination of slave women’s procreation laid the foundation for centuries of reproductive regulation that continues today[.] the social order established by powerful white men was founded on two inseparable ingredients: the dehumanization of africans on the basis of race, and the control of women’s sexuality and reproduction […] every indignity that comes from the denial of reproductive autonomy can be found in slave women’s lives – the harms of treating women’s wombs as procreative vessels, of policies that pit a mother’s welfare against that of her unborn child, and of government attempts to manipulate women’s childbearing decisions through threats and bribes. 108 this denial of black reproductive autonomy has been sanctioned by laws that have evolved to maintain a “monstrous combination of racial and gender domination.”109 detained black women must also fight a wide array of stereotypes born from degrading mythology about black mothers. this body of mythology is based on the notion that black people are of incarcerated black women, including, the 1970s’ “war on drugs” impact on black women and instances of forced sterilization and contraception). 106 jolly, supra note 105. 107 see generally, roberts, supra note 8, (discussing the history of black reproductive freedom in the united states, the experience of childbearing black women during slavery, the economic and social incentives to govern black women’s reproductive lives, and the subsequent denial of black reproductive autonomy). 108 id. 109 id. 166 columbia journal of race and law [vol. 10:2 scientifically inferior because of biological distinctions that determine their inferiority.110 prominent myths of black motherhood and archetypal black mothers include: jezebel (the immoral and lascivious black mother), mammy (the perfect caregiver to white children who neglects her own), the unwed mother (as perpetuated by daniel patrick moynihan’s thesis in his 1965 report, the negro family: the case for national action),111 and the welfare queen (the lazy mother who relies on public assistance and deliberately gets pregnant at the expense of taxpayers).112 these stereotypes continue to play a role in the experiences of black women throughout their contact with american carceral institutions. c. the lack of national standards compounds the already-insufficient medical care inside although incarcerated people have a constitutional right to medical care, 113 the reality of securing medical care while detained is incredibly fraught, and there are no national standards for the 110 roberts, supra note 8, at 9 (citing nancy stepan, the idea of race in science: great britain, 1800-1960 (hamden, con..: 1981)); see also barbara jeanne fields, slavery race, and ideology in the united states of america, 181 new left rev. 95 (1990). 111 the negro family: the case for national action, dept. of labor, off. of plan.& pol’y res. (1965), https://www.dol.gov/general/aboutdol/history/webid-moynihan. 112 roberts, supra note 8, at 10-19. 113 estelle v. gamble, 429 u.s. 97, 103–04 (1976) (“these elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration. an inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. in the worst cases, such a failure may actually produce physical ‘torture or a lingering death,’ the evils of most immediate concern to the drafters of the amendment. in less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. the infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that ‘(i)t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself’”) (internal citations omitted)). no. 10:2] the failure to protect 167 oversight of healthcare in prisons and jails. for example, in new york state, the state commission of correction (scoc) oversees county jail facilities and is tasked with establishing minimum standards for health care in new york correctional institutions.114 the minimum standards, however, do not distinguish the healthcare needs of male and female inmates, and nothing within the minimum standards addresses the significant and incredibly specific needs of pregnant prisoners and detainees.115 in new york, no county jail has a written policy mandating when to take a female who is in labor to the hospital.116 similarly, while some institutions have received accreditation from organizations such as the national commission on correctional health care (ncch), the majority of the nation’s correctional institutions have not been accredited, and accreditation does not guarantee consistency when it comes to reproductive healthcare.117 the ncch standard on “pregnancy counseling” states that “[p]regnant inmates are given comprehensive counseling and assistance in accordance with their expressed desires regarding their pregnancy, whether they elect to keep the child, use adoption services, or have an abortion.”118 the ncch leaves many of the details to the discretion of local facilities, suggesting facilities 114 n.y. correct. law § 45(6) (mckinney 2008); 9 n.y.c.r.r. § 7500.1(b)(1) (mckinney 2008). 115 id. see also access to reproductive health care in new york state jails, nyclu (2008), https://www.nyclu.org/en/publications/report-access-reproductivehealth-care-new-york-state-jails (last visited apr. 15, 2020). 116 rachel roth, “she doesn’t deserve to be treated like this:” prisons as sites of reproductive injustice, in radical reproductive justice: foundations, theory, practice, critique 10 (loretta j. ross et al. eds., 2017); see also nyclu, supra note 115. 117 roth, supra note 116 (the national commission on correctional health care reported in 2011 that it had accredited almost 500 prisons and jails, accounting for around 400,000 people which was less than 20 percent of the total population of people in prison at that time). 118 nyclu, supra note 115, at 6. 168 columbia journal of race and law [vol. 10:2 obtain legal recommendations regarding abortion proceedings based on the laws of their state.119 privately-owned prisons present yet another barrier to consistent and adequate medical care. profit motives further disincentivize correctional facilities from providing quality health care, and privately owned prisons and jails lack transparent policies that might lead to needed reform.120 in the example of new york state, a mixture of on-site medical staff employed by the jail, community health providers, and on-site employees of private companies provide for inmate healthcare.121 most of new york state’s jails are equipped with incredibly small medical units that are staffed by a single registered nurse or licensed practical nurse.122 when medical services are provided by private companies, discretion is left to non-governmental actors with essentially no public accountability. private correctional facilities have substantial interests in their profits, which almost certainly results in substandard care for those detained at the hands of the state. 119 the nyclu found that less than half of the counties housing female inmates in new york state had policies specifically addressing inmates’ access to abortion and only 23 percent provided for direct access to abortion services. id. at 1. the same nyclu report explains that while the ncch suggests implementing standards regarding timely prenatal and postpartum care, including procedures for medical examinations and specific obstetrical services, there is no information on how these policies and procedures are enforced or maintained or what the consequences are if a certain facility fails to meet the several “compliance indicators” purportedly adopted by state and county jails. id. at fn. 40. 120 roth, supra note 116, at fn. 13 (“journalists have written many exposes of private medical companies, in, for instance, delaware, michigan, missouri, new york, and tennessee. private companies also insist that they cannot be sued for violating people’s rights in the prisons that they operate under government contract”). 121 nyclu, supra note 115. 122 registered nurses (rn) and licensed practical nurses (lpn) can provide basic medical services but these single staffed units pale in comparison to the rarer, well-equipped units, that include examining tables, beds, and laboratories. id. no. 10:2] the failure to protect 169 although data are severely limited and outdated, it is estimated that between five and ten percent of incarcerated women are pregnant when they enter jail or prison, and approximately 2,000 babies are born to incarcerated women in the united states each year.123 over half of all women in united states prisons and 80% of women in jail are mothers.124 the majority of these mothers are also the primary caretakers of their children, a fact that highlights the devastating impact that incarceration has on the individuals who are incarcerated and on their immediate families and communities. known harms of parental incarceration include the child harboring feelings of traumatic loss, elevated levels of anxiety, fear, loneliness, anger, depression, decreased stability, lower educational achievement, behavioral difficulties, sleep deprivation, and prolonged mental and physical health problems that manifest later in life.125 pregnant women who are already separated from their existing children face unique hurdles of stress, isolation, and anxiety while incarcerated.126 123 clarke & simon, supra note 79, at 779–785. 124 wendy sawyer, bailing moms out for mother’s day, prison pol'y initiative (may 8, 2017), https://www.prisonpolicy.org/blog/2017/05/08/ mothers-day/. 125 see generally julie smyth, dual punishment: incarcerated mothers and their children, 3 colum. soc. work rev. 33 (2012); promoting social and emotional well-being for children of incarcerated parents, fed. interagency working group for children of incarcerated parents (2013) (the federal interagency working group for children of incarcerated parents includes representatives from the department of health and human services, the department of justice, the department of education, the social security administration, the department of agriculture, and the domestic policy council); john hagan & holly foster, intergenerational educational effects of mass imprisonment in america, am. soc. assoc., 85 soc. of educ. (pincite needed) (2012). 126 see carolyn sufrin et al., reproductive justice, health disparities and incarcerated women in the united states, 47 perspectives on sexual & reproductive health 213-19 (dec. 2015). 170 columbia journal of race and law [vol. 10:2 d. pregnant pretrial detainees are subjected to unconstitutional conditions of confinement pretrial detainees are absorbed into an effectively punitive environment when confined before trial. their movement, food intake, interactions, and access to basic medical care are all highly restricted and supervised. women of color, already uniquely marginalized and judged for their patterns of so-called sexual deviance, find themselves further stigmatized while pregnant inside.127 brenda peppers, a woman in south carolina who tested positive for drugs while on probation and was sent to jail for the entire seventh month of her pregnancy, described her experience: i was placed in a small one room cell with ten and sometimes as many as fifteen other women. i was forced to sleep on a mat on the floor, sometimes near the overflowing toilet. never being allowed out of the cell, i could do nothing more than stand, squat or lay for the entire thirty days. i was not allowed milk or juice because the other inmates could not have the same. it being the month of august, temperatures were soaring. there was no air conditioning or even a fan. i was truly miserable. i repeatedly requested medical attention, but to no avail…they would promise that i would see the jail doctor the next day, but tomorrow never came.128 women across the country in a range of detention facilities have shared stories similar to brenda’s. her experience speaks to the lack of uniform health care and unchangingly punitive nature of jails 127 see roberts, supra note 8, and accompanying discussion in text of the jezebel archetype and the myth of the lascivious black mother. 128 roth, supra note 116, at 69–70 (quoting “statement of brenda peppers,” no date, from national advocates for pregnant women). no. 10:2] the failure to protect 171 and prisons throughout the united states.129 the government routinely fails to address pregnant people’s serious medical needs when they are taken into custody, even before they have been adjudged guilty of any crime. 1. restrictions on movement and physical restraints risk the health and safety of pregnant pretrial detainees in 2008, the department of health and human services (hhs) issued physical activity guidelines for americans.130 the report was intended to “help americans understand the types and amounts of physical activity that offer important health benefits.”131 now in its second edition, the report also details the “risks of sedentary behavior and the relationship with physical activity.”132 129 stories like brenda’s are endemic to the criminal justice system and too numerous to tally in one place. studies reveal that conditions for detained pregnant women are, as the standard, extremely dangerous. one recent study of women in the king county jail in seattle, washington found that the women “all complained of being uncomfortable, lacking pillows and chairs, having to sit on cold cement, being exposed to toxic cleaning materials, and feeling constantly hungry.” id. see also carole schroeder & janice bell, doula birth support for incarcerated pregnant women, 22 pub. health nursing 53-58 (jan. 2005). 130 u.s. dep’t of health & human servs., president’s council on sports, fitness & nutrition, physical activity guidelines for americans, https://www.hhs.gov/fitness/be-active/physical-activity-guidelines-foramericans/index.html (last visited apr. 15, 2020). 131 id. 132 hhs explains its use of the term sedentary behavior: “in general, sedentary behavior refers to any waking behavior characterized by a low level of energy expenditure (less than or equal to 1.5 mets) while sitting, reclining, or lying. the guidelines operationalizes the definition of sedentary behavior to include self-reported sitting (leisure time, occupational, and total), television (tv) viewing or screen time, and low levels of movement measured by devices that assess movement or posture. standing is another activity with low energy expenditure, but it is distinct from sedentary behavior in how it affects health.” u.s. dep’t of health and human servs. physical activity guidelines for americans (2nd ed. 2018). 172 columbia journal of race and law [vol. 10:2 the 2018 advisory committee found a “strong relationship between time in sedentary behavior and the risk of all-cause mortality and cardiovascular disease mortality in adults.”133 the guidelines even include a heat map that demonstrates, on two axes, the relationship among moderate-to-vigorous physical activity, sitting time, and the risk of all-cause mortality in adults.134 the risk of all-cause mortality decreases with even the smallest additions of moderate-to-vigorous activity. the report also includes “key guidelines for women during pregnancy and the postpartum period”: • women should do at least 150 minutes (2 hours and 30 minutes) of moderate-intensity aerobic activity a week during pregnancy and the postpartum period. preferably, aerobic activity should be spread throughout the week. • women who habitually engaged in vigorousintensity aerobic activity or who were physically active before pregnancy can continue these activities during pregnancy and the postpartum period. • women who are pregnant should be under the care of a health care provider who can monitor the progress of the pregnancy. women who are pregnant can consult their health care provider about whether or how to adjust their physical activity during pregnancy and after the baby is born.135 133 id. at 21. 134 id. at fig. 1-3 (the map is adapted from data found in ulf ekelund et al., does physical activity attenuate, or even eliminate, the detrimental association of sitting time with mortality? a harmonized meta-analysis of data from more than 1 million men and women, 388 lancet 1302 (2016)); id. at 23. 135 id. at 9. no. 10:2] the failure to protect 173 this section of the report explains that physical activity during pregnancy benefits a woman’s overall health, maintains or increases cardiorespiratory fitness, reduces the risk of excessive weight gain, reduces the risk of gestational diabetes, and reduces symptoms of postpartum depression.136 regular physical activity in the postpartum period is also shown to improve the general mood and well-being of mothers.137 as previously discussed, there is a total lack of uniform health care policy in detention facilities across the country, not to mention any means of ensuring whether pregnant women who are detained are even able to meet the physical activity guidelines proscribed by hhs. the overall movement of pregnant detainees is severely limited while they are in jail. this extreme restriction is accompanied by a range of serious health risks. not only are detainees confined to small spaces during the vast majority, and sometimes entirety, of their days, prison officials regulate their movement in every sense. pregnant prisoners and pretrial detainees are often unable to convince guards that they need to see a doctor, or are automatically denied care during count and lock-down.138 the practice of shackling pregnant women and women in labor is perhaps the most egregious example of how pregnant women’s bodies are policed and punished while confined. the american college of obstetricians and gynecologists (acog) define shackling as the use of “any physical restraint or mechanical device to control the movement of a prisoner’s body or limbs, including handcuffs, leg shackles, and belly chains.”139 despite recent policy advances such as the 2018 passage of the first step act, which prohibits the shackling of pregnant women in federal 136 id. at 79. 137 id. 138 roth, supra note 116 (citing court records and other documents showing that correctionsofficers and medical personnel “ignore, disregard, and discount women’s ownknowledge thatsomething is happening and that they need medical attention.”). 139 acog comm. op., supra note 88, at 2. 174 columbia journal of race and law [vol. 10:2 custody, pregnant women are still regularly shackled, even in states where the practice has been outlawed.140 the new york civil liberties union (nyclu) recently launched an investigation of health care policies specific to women in county jails in new york state.141 the nyclu found that while many incarcerated women in new york state are legally entitled to reproductive health care, “few county jails have policies ensuring comprehensive access to such care.”142 only three counties had specific policies addressing the use of restraints. other counties responding to the nyclu’s requests for information stated that the use of restraints on pregnant women is often left to the discretion of the correctional staff.143 in 2012, a report from the correctional association of new york revealed that 23 out of 27 incarcerated women were shackled during delivery, even after the new york state ban had occurred.144 shackling is both medically hazardous and emotionally traumatizing. pregnant women who are shackled are at increased risk of falling, especially during the antepartum period due to their shifting center of gravity.145 shackling makes it more difficult to identify pregnancy-related complications, and can lead to loss of life 140 discussing the prevalence of shackling, despite it being illegal on the federal level and in many states, lauryn king writes: “despite being prohibited during labor and delivery at the federal level, and in 22 states and the district of columbia, perinatal shackling remains standard operating procedure in most correctional facilities. a number of factors contribute to the continuation of this practice even in jurisdictions where it is illegal, including poor implementation of laws banning shackling, lack of training for individual correctional officers, and perpetration of stereotypes about what makes a “good” or “bad” mother.” lauryn king, labor in chains: the shackling of pregnant inmates, 25 j. pub. pol’y and admin. 55 (2018). 141 nyclu, supra note 115. 142 there is little state oversight for the county jail system. id. 143 the nyclu found that the use of restraints was left entirely to the discretion of correctional staff in cattaraugus, tioga, rensselaer, and st. lawrence counties. restraints were also used, unless “medically inappropriate,” in chautauqua, fulton, montgomery, putnum and westchester counties. id. 144 king, supra note 140, at 58. 145 id. at 59; see also acog comm. op., supra note 88, at 2. no. 10:2] the failure to protect 175 for both the fetus and the mother.146 serious conditions such as preeclampsia and hypertensive disease are incredibly difficult to treat quickly when medical professionals must first tend to the shackles between them and their patient.147 restraints also interfere with the ability of medical staff to act quickly in the case of emergency cesarean sections where “a delay of as little as five minutes is enough to cause permanent brain damage to the child.”148 the humiliating and dehumanizing costs of being shackled during labor are horrific. one woman who gave birth while incarcerated described her experience: when they shackled me i had two handcuffs, one was on my wrist and the other one was attached to the bed…my leg and my arm were attached to the bed so there was no way for me to move and to try and deal with the labor pains. and the metal, cause when you’re swollen, it would just cut into your skin. i had bruises after the fact that stood on me for three weeks. i mean, purple bruises from my ankle and my wrist from them having them shackles and handcuffs on me. even when i had to get an epidural, they didn’t take the shackles and the handcuffs off. i just had to bend over and just pray that i could stay in that position while they were putting that needle in my back through the whole procedure. not once did he [the correctional 146 clarke & simon, supra note 79, (noting that “in 2011, the american college of obstetricians and gynecologists (acog) released a committee opinion concluding that “[p]hysical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and the fetus, and have similarly made the labor and delivery process more difficult than it needs to be; thus, overall putting the health and lives of the women and unborn children at risk”) (internal citations omitted). 147 acog comm. op., supra note 88. 148 aclu briefing paper, supra note 81, (citing dr. patricia garcia, statement to chi. legal aid to incarcerated mothers (dec. 1998)). 176 columbia journal of race and law [vol. 10:2 officer] try and loosen them. and the doctor asked him, you know, ‘can’t you take them off of her? she can’t go nowhere. she can’t walk. she’s not goin’ nowhere.’ ‘it’s procedure and policy. can’t do it.’149 another woman spent two months of her pregnancy at the westchester county jail in new york. she had yet to be examined when she went into early labor in her second trimester.150 she was strip-searched and shackled at the hands, waist, and ankles before being taken to the hospital, where she gave birth to twins while handcuffed to a bed.151 she was still handcuffed to the bed when, three hours after the delivery, she learned that her premature twins had both passed away.152 she learned at the hospital that her early labor was the result of a treatable infection.153 the shackling of pregnant women is opposed by national correctional and medical associations who recognize the practice as almost entirely unnecessary.154 the cost of shackling pregnant women greatly outweighs any possible risks of flight or 149 interview with diana delgado, women and prison: a site for resistance, http://womenandprison.org/interviews/view/interview_with_diana_delgado. 150 shared experience of bridgette gibbs, victoria law, u.s. prisons and jails are threatening the lives of pregnant women and babies, in these times, (sept. 28, 2015), http://inthesetimes.com/article/18410/u.s.-prisons-arethreatening-the-lives-of-pregnant-mothers-and-newborns. 151 id. 152 id. 153 id. 154 aclu briefing paper, supra note 81 (explaining that acog is opposed to shackling and recognizes the practice as “demeaning and unnecessary,” the american medical association (ama) opposes the use of restraints of any kind on women in labor as well as during and after delivery, the american public health association has stated that women “must never be shackled during labor and delivery,” and the federal bureau of prisons, u.s. immigration and customs enforcement, the u.s. marshals service, and the american correctional association have all instituted policies that limit the use of shackles on incarcerated pregnant women). no. 10:2] the failure to protect 177 security.155 significant legal and legislative battles have also been won against the use of restraints on pregnant women inside.156 the movement to end all shackling of all pregnant women in confinement is an important step in the movement for reproductive justice. yet eliminating the use of all restraints on pregnant women in custody would not alter what is, at its heart, a system based on an unchangingly punitive environment. the practice of shackling, the absence of adequate nutrition, small living quarters, reduced or no access to medical care, separation from existing children and support systems—these are all elements of confinement that are part of a wider apparatus that inflicts a tremendous amount of stress on pregnant prisoners and pretrial detainees. 2. pregnant women are subjected to an unalterable environment of high stress that poses a serious risk to their health and safety over the past two decades, a significant amount of psychiatric research has been conducted concerning the stress, anxiety, and depression often experienced by women during pregnancy and the 155 geraldine doetzer, supra note 86 (“while the specific policies and procedures may vary, the main justifications for the continued practice of shackling women in advanced stages of pregnancy and through labor are identical to those used to justify restraining male or female inmates in the general population: to maintain security and decrease flight risk”); see also adam liptak, supra note 86. 156 landmark decisions concerning the shackling of pregnant prisoners include nelson v. correctional medical services, 583 f.3d 522, 532 (8th cir. 2009) (holding that the shackling of pregnant prisoners was unconstitutional, violating the eighth amendment: “. . . either interference with care or infliction of ‘unnecessary suffering’ establishes deliberate indifference in medical care cases in violation of the eighth amendment”); women prisoners of d.c. v. district of columbia, 93 f.3d 910 (d.c. cir. 1996) (featuring a class action suit brought by women inmates where the court held that correctional officers could not use restraints on pregnant women in labor, delivery, or in recovery immediately following delivery); brawley v. state of washington, 712 f.supp.2d. 1208 (w.d. wash 2010) (recognizing the shackling of a pregnant woman as violating the eighth amendment). 178 columbia journal of race and law [vol. 10:2 resulting implications for the health of the mother and the infant.157 while psychiatric research on pregnancy has been primarily focused on diagnosable anxiety and depressive disorders, the fields of behavioral medicine, health psychology, and social epidemiology have recently produced research on “pregnancy anxiety.” pregnancy anxiety is a comparatively newer concept that is “among the most potent maternal risk factors for adverse maternal and child outcomes.”158 leading researchers christine dunkel schetter and lynlee tanner from the university of california, los angeles department of psychology have pioneered the inquiry into pregnancy anxiety and have written extensively on their findings.159 pregnancy anxiety, as opposed to state anxiety during pregnancy, involves fears about the health of the baby, fear of hospital and healthcare experiences, fear of survival in pregnancy, fear of the aftermath of childbirth, and fear of the maternal role.160 studies have revealed “remarkably convergent empirical evidence” across diverse populations concerning the adverse effects of pregnancy anxiety.161 of the many adverse birth outcomes studied, pregnancy anxiety (as well as stress and anxiety generally) have consistently been linked to preterm birth (ptb) and low birth weight (lbw).162 dunkel schettel and tanner concluded in a 2012 study: 157 christine dunkel schetter & lynlee tanner, anxiety, depression and stress in pregnancy: implications for mothers, children, research, and practice, 25 curr. opin. psychiatry 1 (2012). 158 id. at 2. 159 see schetter & tanner, supra note 157. 160 id. see also, christine dunkel schetter, psychological science on pregnancy: stress processes, biopsychosocial models, and emerging research issues, ann. rev. psychol. (2010). 161 schetter & tanner, supra note 157. see also, christine dunkel schetter, stress in pregnancy: empirical evidence and theoretical issues to guide interdisciplinary researchers, in handbook of stress science: biology, psychology, and health (r. contrada & a. baum, eds., 2010). 162 schetter & tanner, supra note 157, at 3. no. 10:2] the failure to protect 179 anxiety, depression, and stress in pregnancy are risk factors for adverse outcomes for mothers and children. anxiety in pregnancy is associated with shorter gestation and has adverse implications for fetal neurodevelopment and child outcomes. anxiety about a particular pregnancy is especially potent. chronic strain, exposure to racism, and depressive symptoms in mothers during pregnancy are associated with lower birth weight infants with consequences for infant development. these distinguishable risk factors and related pathways to distinct birth outcomes merit further investigation.163 other leading studies have arrived at similar conclusions: exposure to prenatal stress not only affects the physical development of the infant (birth weight, head size, etc.), but also affects certain indications of functional development, such as poor psychomotor performance and difficult behavior during the early years of childhood.164 retrospective studies have linked maternal psychological stress during pregnancy resulting from familial problems or the death of a partner (as well as external stressors such as aircraft noise) to delayed motor development and behavioral disorders in young children.165 mother-infant attachment is another critical element of the birth process and greatly affects the infant’s psychological development as well as the mother’s mental health.166 mothers in correctional 163 id. at 6. 164 e.j.h. mulder et al., prenatal maternal stress: effects on pregnancy and the (unborn) child, 70 early hum. dev. 3, 3–14 (2002). 165 id.; see also, m. weinstock, does prenatal stress impair coping and regulation of hypothalamic– pituitary– adrenal axis?, 21 neurosci. bio. behav. rev. 1, 1–10 (1997). 166 carolyn sufrin, pregnancy and postpartum care in correctional settings, nat’l comm’n on correctional health care 2, 5 (march 2018), https://www.ncchc.org/filebin/resources/pregnancy-and-postpartum-care2018.pdf. 180 columbia journal of race and law [vol. 10:2 settings are typically separated from their newborns as soon as they are discharged from the hospital, rendering it impossible for the mother and infant to bond in the infant’s earliest stage of life outside the womb.167 acog and the american academy of pediatrics also recommends “exclusive breastfeeding for the first six months,” citing the numerous short-term and long-term benefits that breast milk has for newborns.168 these benefits include lower risk of respiratory and ear infections, allergic diseases, obesity, and type 2 diabetes.169 a committee opinion published by the acog breastfeeding expert work group states: “enabling women to breastfeed is a public health priority because, on a population level, interruption of lactation is associated with adverse health outcomes for the woman and her child.”170 most prisoners and detainees are unable to breastfeed and bond with their newborns during the first few weeks, let alone the first six months of the infant’s life. the impact of stress on perinatal health is also reflected in the staggering rate of black maternal mortality in the united states. in 2019, the centers for disease control reported that black women living in the united states are two to three times more likely than white women to die from pregnancy-related causes.171 a recent feature in the new york times magazine by linda villarosa bared this stark reality, emphasizing that the crisis of maternal death and 167 acog, comm. on healthcare for underserved women, healthcare for pregnant and postpartum incarcerated women and adolescent females, comm. op. 511 (reaffirmed 2016), https://www.acog.org/-/media/project/acog/ acogorg/clinical/files/committee-opinion/articles/2011/11/health-care-forpregnant-and-postpartum-incarcerated-women-and-adolescent-female.pdf. 168 acog, comm. on obstetric practice, optimizing support for breastfeeding as part of obstetric practice, comm. op. 756, 132 obstetrics & gynecology 4 (2018), https://www.acog.org/-/media/project/acog/acogorg/ clinical/files/committee-opinion/articles/2018/10/optimizing-support-forbreastfeeding-as-part-of-obstetric-practice.pdf. 169 id.; see also sufrin, supra note 166. 170 acog, supra note 167, at 187. 171 racial and ethnic disparities continue in pregnancy-related deaths— black, american indian/alaska native women most affected, ctrs. for disease control & prevention (sept. 5, 2019), https://www.cdc.gov/ media/ releases/2019/p0905-racial-ethnic-disparities-pregnancy-deaths.html. no. 10:2] the failure to protect 181 near-death is not limited to women of a certain class.172 after discussing tennis champion serena williams’ near-death experience following the birth of her daughter, villarosa writes: for black women in america, an inescapable atmosphere of societal and systemic racism can create a kind of toxic physiological stress, resulting in conditions—including hypertension and pre-eclampsia—that lead directly to higher rates of infant and maternal death. and that societal racism is further expressed in a pervasive, longstanding racial bias in health care—including the dismissal of legitimate concerns and symptoms—that can help explain poor birth outcomes even in the case of black women with the most advantages.173 as pregnant pretrial detainees enter facilities of confinement, they face the polar edges of a system so devoted to its racist foundations that it denies serena williams, one of the most accomplished athletes in the world, her bodily integrity. iv. pregnant women should not be detained there is no mitigation or institutional reform that could totally neutralize the harm pregnant women endure while detained. for many pretrial detainees, that harm is inevitable simply because they cannot afford bail.174 in 2017, 60% of women in jail in the united states had not been convicted of a crime and were awaiting 172 linda villarosa, why america’s black mothers and babies are in a lifeor-death crisis, n.y. times mag. (apr. 11, 2018), https://www.nytimes.com/2018/04/11/magazine/black-mothers-babies-deathmaternal-mortality.html. 173 id. 174 dobbie et al., supra note 90. 182 columbia journal of race and law [vol. 10:2 trial.175 because black women are incarcerated at higher rates176 and are often more economically disadvantaged than white women, cash bail in america has devastating consequences for black women. while recent developments in federal and state cash bail reform will undoubtedly shield some pregnant women from pretrial detention, legislatures are hesitant to embrace sweeping reforms, and the future remains chaotically uncertain. this section considers how pregnant pretrial detainees might rely on the second circuit’s objective deliberate indifference standard to prove fourteenth amendment violations, the possibility of class action habeas as a viable form of relief, and how cash bail reform may affect relief for some. a. attempts at relief courts have resisted identifying “pregnancy in and of itself” as a serious medical need absent complications or some other aggravating factor.177 as this note argues, however, pregnancy in the context of forced detention necessarily involves a range of serious health risks. a pretrial detainee without a conviction is at risk of a range of serious adverse outcomes for herself and her fetus, not to mention a physically and mentally humiliating series of traumas. in 1987, the third circuit decided the case of monmouth county correctional institutional inmates v. lazaro.178 the inmates of monmouth county correctional institution brought a class action alleging several conditions of confinement claims, including overcrowding and the inadequacy of the facility’s healthcare 175 aleks kajstura, women’s mass incarceration: the whole pie 2017, prison pol'y initiative (oct. 19, 2017), https://www.prisonpolicy.org/ factsheets/women_pie_chart_report_2017.pdf. 176 sufrin et al., supra note 126. 177 rachel roth, obstructing justice: prisons as barriers to medical care for pregnant women, ucla women’s l.j. 79, 98 (2010). 178 monmouth cty. corr. institutional inmates v. lanzaro, 834 f.2d 326 (3d cir. 1987). no. 10:2] the failure to protect 183 services.179 the action also involved allegations that the county’s “refusal to provide pregnant inmates with all necessary medical care related to their pregnancies—including abortion-related services constituted a deliberate indifference to their serious medical needs and deprived them of equal protection of the law in violation of the eighth and fourteenth amendments.”180 the third circuit found pregnancy to be a unique medical condition, rejecting the monmouth county correctional institution’s argument that pregnancy ought not to be considered a serious medical need. the court stated: pregnancy is unique. there is no other medical condition known to this court that involves at the threshold an election of options that thereafter determines the nature of the necessary medical care. in other words, the condition of pregnancy, unlike cancer, a broken arm or a dental cavity, will require very separate and distinct medical treatment depending upon the option—childbirth or abortion—that the woman elects to pursue. the county's suggestion that, to come within the purview of estelle, an inmate must suffer from “an abnormal medical condition,” is simply wrong. that pregnancy itself is not an “abnormal medical condition” requiring remedial, medical attention does not place it beyond the reach of estelle. nor does the fact that pregnancy presents a woman with the alternatives of childbirth or abortion affect the legal characterization of the nature of the medical treatment necessary to pursue either alternative.181 179 id. at 328. 180 id. 181 id. at 348. 184 columbia journal of race and law [vol. 10:2 the third circuit recognized that pregnancy involves a continuum of choices that the person who is pregnant is entitled to make. the choices a woman makes throughout the duration of her pregnancy, the court reasoned, require medical care whether or not the woman decides to have an abortion.182 unfortunately, monmouth county has been distinguished by more recent cases where circuit judges have upheld the constitutionality of similar challenges to abortion policies and prenatal healthcare.183 in patterson v. carroll county detention center, elizabeth a. patterson brought a wrongful death and 42 u.s.c. § 1983 action against carroll county prison officials in the state of kentucky.184 patterson was pregnant in may 2004 when she was admitted to the carroll county detention center to serve a felony sentence.185 on july 6, after experiencing abnormally severe cramping, patterson told an official that she was in a significant amount of pain.186 she was ignored by the guard, who “laughed off” her concerns and assumed the pains were simply routine pregnancy discomfort.187 early the next morning, patterson’s water broke, and some of the inmates who shared her cell (around ten) alerted staff of the emergency.188 carroll county detention center staff could not decide which hospital patterson should be transferred to, denied her initial requests to contact family members, and transferred patterson to the hospital by way of the “paddy wagon.”189 182 id. at 349. 183 see, e.g., bryant v. maffucci, 923 f.2d 979 (2d cir. 1991) (ruling that prison authorities’ actions did not rise above the level of negligence); jamison v. nielsen, 32 fed. appx. 874 (9th cir. 2002) (holding that the condition of being two to three months pregnant was not sufficiently serious as to trigger a constitutional protection). 184 patterson v. carroll cty. det. ctr., no. civ.a. 05-101-dlb, 2006 wl 3780552, at *1 (e.d. ky. dec. 20, 2006). 185 id. 186 id. 187 id. 188 id. 189 id. no. 10:2] the failure to protect 185 patterson went into labor at the hospital, where she miscarried her child.190 the medical records stated the baby was “friable and gray.”191 an ob/gyn on duty in the emergency room at the time explained that the “friable and gray” state of the fetus indicated that the fetus had likely been dead inside patterson’s womb for days or even weeks prior to her labor and delivery.192 patterson lost a significant amount of blood while emergency room staff waited for her to deliver the afterbirth.193 although the court conceded that patterson’s condition was serious after her water broke, they refused to recognize patterson’s pregnancy before the incident as constituting a serious medical need. in a footnote, the court states: plaintiffs attempt to define the context of “serious” in terms of patterson's condition generally, referring only to her pregnancy as the serious condition requiring treatment. this untenable application of the legal standard is an effort by plaintiffs to suggest that because patterson was pregnant, she was in a permanently serious medical condition and, therefore, once the guard ignored her painful calls of cramping, she was acting with deliberate indifference. however, the general condition of being pregnant does not necessarily constitute a serious medical need at any given moment in time during incarceration absent a development that “must require immediate attention.” […] simply put, the serious medical need only arose in this case when patterson entered premature labor as manifested by her water 190 id. 191 id. 192 id. 193 id. 186 columbia journal of race and law [vol. 10:2 breaking because it was only then that “a lay person would easily recognize the necessity for a doctor's treatment.”194 although patterson had not complained of any prior complications relating to her pregnancy and was taking no medication other than prenatal vitamins, ambien for sleep, and buspar,195 the conditions she was subjected to in confinement put her health at serious risk. the court in patterson was not following the objective deliberate indifference standard that has emerged in the second circuit for pretrial detainees asserting failure to protect claims under the fourteenth amendment.196 pretrial detainees are no longer bound by the same notice and knowledge requirements that governed the decision in patterson.197 pregnant pretrial detainees are now in the position to assert failure to protect claims, under the precedents of kingsley and darnell, because of the objective deliberate indifference standard that would not have been successful in prior years.198 nelson v. correctional medical services provides a helpful framework for the discussion of pretrial pregnant detainees and their 194 id. at *3, fn. 5. 195 id. at *1. 196 id. at *3 (e.d. ky. dec. 20, 2006) (in patterson, the court stated:“[w]hile the objective component of the deliberate indifference standard looks to ‘contemporary standards of decency,’ the subjective component requires that the actor ‘must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and [she] must also draw the inference.’” (internal citations omitted). id. this standard differs from the deliberate indifference standard now followed by the second circuit that lacks a knowledge requirement). 197 darnell v. pineiro, 849 f.3d 17, 35 (2d cir. 2017) (“after kingsley, it is plain that punishment has no place in defining the mens rea element of a pretrial detainee’s claim under the due process clause. unlike a violation of the cruel and unusual punishments clause, an official can violate the due process clause of the fourteenth amendment without meting out any punishment, which means that the due process clause can be violated when an official does not have subjective awareness that the official’s acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm.”). 198 id. no. 10:2] the failure to protect 187 own fourteenth amendment failure to protect claims.199 in nelson, an acutely divided eighth circuit court of appeals heard a pregnant, convicted prisoner’s allegations of eighth amendment violations.200 the opinion discussed the fact that there was no reason to believe nelson posed a threat or flight risk, and yet she was repeatedly unshackled and re-shackled as the doctor recorded her cervical dilation during labor.201 the nelson court relied on farmer in its analysis: a prison official is deliberately indifferent if she “knows of and disregards” a serious medical need or a substantial risk to an inmate's health or safety. farmer v. brennan. a claim of deliberate indifference has both an objective and a subjective component. thus, the relevant questions here are: (1) whether nelson had a serious medical need or whether a substantial risk to her health or safety existed, and (2) whether officer turensky had knowledge of such serious medical need or substantial risk to nelson's health or safety but nevertheless disregarded it.202 199 nelson v. corr. med. services, 583 f.3d 522 (8th cir. 2009) (en banc). 200 id. 201 id. at 526 (“according to nelson's testimony, the shackles prevented her from moving her legs, stretching, or changing positions. a nurse told officer turensky that “[s]he wished that they wouldn't have to put those restraints on” nelson, but to no avail. each time a nurse needed to measure nelson's dilation, that nurse had to ask turensky to unshackle her. although it was clear that nelson was in the final stages of labor and no one on the hospital staff ever requested that she be reshackled, nelson testified that turensky “hooked [her] right back up” to the bed rails after each cervical measurement was taken. turensky herself noted in her security check log that by 4:38 pm nelson was dilated to 8 centimeters”). see also brett dignam and eli y. adashi, health rights in the balance: the case against perinatal shackling of women behind bars, 16 health & hum. rts. j. 13, 4–23 (2014). 202 nelson, 583 f.3d at 528 (en banc). 188 columbia journal of race and law [vol. 10:2 for pretrial detainees, the second circuit has affirmed that the second prong of the farmer deliberate indifference test relied on in nelson does not have a knowledge or intent requirement, in the same way the supreme court ruled in kingsley for an excessive force claim.203 it is enough to prove that prison officials should have known of the serious medical need or risk to the detainee’s health or safety. b. habeas class action on january 27, 2017, president donald trump signed executive order 13769, “protecting the nation from foreign terrorist entry into the united states,”204 effectively barring entry into the country by all nationals of seven foreign states (iraq, iran, libya, somalia, sudan, syria, and yemen). litigation prompted by the order brought forward noteworthy procedural arguments205 regarding 203 darnell v. pineiro, 849 f.3d 17, 21 (2d cir. 2017) (“a pretrial detainee may establish a § 1983 claim for allegedly unconstitutional conditions of confinement by showing that the officers acted with deliberate indifference to the challenged conditions. this means that a pretrial detainee must satisfy two prongs to prove a claim, an “objective prong” showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process, and a “subjective prong”—perhaps better classified as a “mens rea prong” or “mental element prong”—showing that the officer acted with at least deliberate indifference to the challenged conditions. the reason that the term “subjective prong” might be a misleading description is that, as discussed below, the supreme court has instructed that “deliberate indifference” roughly means “recklessness,” but “recklessness” can be defined subjectively (what a person actually knew, and disregarded), or objectively (what a reasonable person knew, or should have known)”) (internal citations omitted). 204 exec. order no. 13769, “protecting the nation from foreign terrorist entry into the united states”, 82 fed. reg. 13209 (march 9, 2017); presidential proclamation no. 9645, “enhancing vetting capabilities and processes for detecting attempted entry into the united states by terrorists or other publicsafety threats”, 82 fed. reg. 45161 (sept. 24, 2017); see also exec. order no. 13780, 82 fed. reg. 13209 (mar. 6, 2017). 205 in his blog, josh blackman has tracked and analyzed litigation following executive order 13769. blackman discusses novel procedural arguments for habeas class action. josh blackman, the procedural aspects of “the airport cases,” josh blackman’s blog (jan. 29, 2017), no. 10:2] the failure to protect 189 large habeas206 class actions.207 while these lawsuits do not involve pregnant women or pretrial detainees, they offer a potentially viable procedural model for how pregnant pretrial detainees could retain relief through a writ of habeas corpus208 class action. the release of pregnant pretrial detainees could be realized if they are able to apply for a writ of habeas corpus on behalf of themselves and others similarly situated.209 on january 27, hameed khalid darweesh (an iraqi husband and father of three) and sameer abdulkhaleq alshawi (an iraqi husband and father) were blocked from leaving john f. kennedy international airport by united states customs and border protections agents?.210 darweesh and alshawi were detained despite their valid entry documents and an assessment by the federal government that neither individual posed a security threat following standard administrative processing and security procedures.211 the aclu filed a petition for writ of habeas corpus and a complaint for injunctive declaratory relief on behalf of darweesh and alshawi, as well as “all others similarly situated.”212 the aclu subsequently filed a motion for class certification or representative habeas action. http://joshblackman.com/blog/ 2017/01/29/the-procedural-aspects-of-theairport-cases/. 206 see 28 u.s.c. §§ 1331, 1361, 2241, 2243, and the habeas corpus suspension clause of the u.s. constitution. 207 see, e.g., darweesh v. trump, no. 17 civ. 480 (amd), 2017 wl 388504, at *1 (e.d.n.y. jan. 28, 2017). see also “darweesh et al. v. trump et al.”, yale law school, https://law.yale.edu/studying-law-yale/clinical-andexperiential-learning/our-clinics/worker-and-immigrant-rights-advocacyclinic/darweesh-et-al-v-trump-et-al (last visited apr. 15, 2020); josh blackman, supra note 205. 208 literally meaning “that you have the body,” united states federal courts may use the writ of habeas corpus to find that a state’s detention of a prisoner or detainee is invalid. see, e.g., brown v. allen, 344 u.s. 443 (1953). 209 in united states ex rel. sero v. preiser, 506 f.2d 1115, 1125 (2d cir. 1974). 210 petition for writ of habeas corpus and complaint for injunctive declaratory relief, darweesh v. trump, no. 17 civ. 480 (amd), 2017 wl 388504 (e.d.n.y. jan. 28, 2017). 211 id. 212 id. 190 columbia journal of race and law [vol. 10:2 213 the motion argued that habeas class action was appropriate in the case of darweesh and alshawi, in line with second circuit precedence allowing “a multi-party proceeding similar to the class action authorized by the rules of civil procedure.”214 federal rule of civil procedure 23 requires that in order for one or more members of a class to pursue an action on behalf of all members, four elements must be met: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.215 in 1974, the second circuit held that although the federal rules of civil procedure do not directly govern habeas actions, the courts maintain the authority to fashion analogous procedural rules for habeas class actions in particular circumstances.216 the second circuit’s holding in united states ex rel. sero v. preiser was articulated in wang v. reno, where the eastern district of new york explained: 213 petitioners’ motion for class certification or representative habeas action, darweesh v. trump, no. 17 civ. 480 (amd), 2017 wl 388504, (e.d.n.y. jan. 28, 2017), https://www.aclu.org/sites/default/files/field_document/ 4_-_motion_for_class_cert.pdf. 214 id. (citing united states ex rel. sero v. preiser, 506 f.2d 1115, 1125 (2d cir. 1974)). 215 fed. r. civ. p. 23(a). 216 united states ex rel. sero v. preiser, 506 f.2d 1115, 1125 (2d cir. 1974) (“to say that the precise provisions of rule 23 do not apply to habeas corpus proceedings, however, is toto caelo different from asserting that we do not have authority to fashion expeditious methods of procedure in a specific case. harris confirms the power of the judiciary, under the all writs act, 28 u.s.c. § 1651 (1970), to fashion for habeas actions ‘appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.’ we find in the unusual circumstances of this case a compelling justification for allowing a multi-party proceeding similar to the class action authorized by the rules of civil procedure.” citing harris v. nelson, 394 u.s. 286, 297 (1969)). no. 10:2] the failure to protect 191 habeas class actions are an appropriate procedural vehicle in certain limited situations. although habeas actions are not strictly governed by the federal rules of civil procedure and therefore the class action provisions of the rules do not automatically apply to habeas actions, a court retains the power “to fashion for habeas actions ‘appropriate means of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.’” 217 a habeas class action on behalf of pregnant pretrial detainees in the second circuit could be adjudicated under sero. however, courts would likely still require class certification by court order; without class certification, courts are unable to grant relief to unnamed and unknown parties.218 c. bail reform 217 wang v. reno, 862 f. supp. 801 (e.d.n.y. 1994) (quoting sero v. preiser, 506 f.2d at 1125); see generally bertrand v. sava, 684 f.2d 204 (2d cir.1982); nguyen da yen v. kissinger, 528 f.2d 1194, 1203 (9th cir.1975) (class certification appropriate in “unique” circumstances); williams v. richardson, 481 f.2d 358 (8th cir.1973); united states ex rel. walker v. mancusi, 338 f.supp. 311, 315–16 (w.d.n.y.1971), aff’d, 467 f.2d 51 (2d cir.1972) (habeas corpus class certification for 38 prison inmates); martin v. strasburg, 689 f.2d 365, 374 (2d cir.1982). 218 although judge ann donnelly granted relief in her order responding to the aclu’s emergency motion for stay of removal in which the aclu requested relief on behalf of “putative class members,” the court did not request a list of individuals detained pursuant to the executive order by the government until after darweesh and alwashi had been released, making it difficult to enforce the order for the unnamed members of the “putative class.” darweesh v. trump, no. 17 civ. 480 (amd), 2017 wl 388504, (e.d.n.y. jan. 28, 2017). 192 columbia journal of race and law [vol. 10:2 states have begun to embrace cash bail reform, but the terrain is chaotic and currently in flux.219 in virtually every jurisdiction, the state (per state statute) is only able to consider two factors when deciding whether to offer bail: (1) the extent to which the defendant poses a flight risk and (2) the likelihood the defendant will be arrested for a new crime before trial.220 however, the vast majority of pregnant pretrial detainees are not flight risks and pose no threat to public safety.221 the widespread use of monetary bail has drastically changed the landscape of pretrial detention; less than twenty-five percent of felony defendants are released without financial terms, and typical felony defendants are assigned a bail amount of more than $55,000.222 states have failed to implement measures to prevent large numbers of defendants from being detained pretrial simply because they lack the resources to meet bail.223 already facing steep socioeconomic disadvantages, women are also disproportionately criminalized by cash bail systems.224 women are generally arrested and incarcerated for different types of crimes than men.225 women are less likely to be convicted of 219 new jersey and kentucky are examples of two states that have adjusted their cash bail systems. new jersey eliminated cash bail in january of 2017 in favor of a risk assessment system. kentucky relies on similar risk assessment procedures which has resulted in 90% of defendants appearing in court without committing new crimes. eisen & chettiar, supra note 66, at 14. however, some fear that alternative “risk assessments” can also exacerbate racial disparities because they consider social factors such as education, family structure, and employment history. these risk assessments may very well result in racially discriminatory and disproportionate pretrial detention. id. 220 eisen & chettiar, supra note 66, at 14. 221 james austin et al., how many americans are unnecessarily incarcerated?, brennan ctr. for just. (2016), https://www.brennancenter.org/sites/default/files/201908/report_unnecessarily_incarcerated_0.pdf. 222 dobbie et al., supra note 90, at 201. 223 digard & swavola, supra note 28. 224 see steinburg, supra note 3; myesha braden & phylicia h. hill, women more likely to be unable to afford bail, balt. sun (may 13, 2018), https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0514-women-bail20180509-story.html. 225 see hotelling, supra note 2, at 38. no. 10:2] the failure to protect 193 violent offenses, and more likely to be arrested for drug, alcohol, and property offenses.226 poverty and addiction are frequent motivating factors, and when violent offenses are committed, the offenses are often against male abusers.227 incarcerated women have lower incomes than incarcerated men, making it even more difficult to afford cash bail.228 the end result is a significant number of pregnant women, detained before trial, restrained in similar fashions to men who have been convicted of violent crimes, with no way to ensure a safe or uncompromised pregnancy.229 226 id. 227 id. 228 see bernadette rabuy & daniel kopf, detaining the poor: how money bail perpetuates an endless cycle of poverty and jail time, prison pol'y initiative (may 2016) (“examining the median pre-incarceration incomes of people in jail makes it clear that the system of money bail is set up so that it fails: the ability to pay a bail bond is impossible for too many of the people expected to pay it. in fact, the typical black man, black woman, and hispanic woman detained for failure to pay a bail bond were living below the poverty line before incarceration. the income data reveals just how unrealistic it is to expect defendants to be able to quickly patch together $10,000, or a portion thereof, for a bail bond. the median bail bond amount in this country represents eight months of income for the typical detained defendant […] too many jails are detaining people not because they are dangerous, but because they are too poor to afford bail bonds. one study of felony defendants nationwide found that an additional 25% percent of defendants could be released pretrial without any increases to pretrial crime. the study found that many counties could safely release older defendants, defendants with clean records, and defendants charged with fraud and public order offenses, all without threatening public safety”). 229 just because women commit violent crime at lower rates than men do does not mean that women who do commit violent crimes deserve to be shackled or detained while pregnant. it is true however that women commit violent crimes less frequently than men which is significant because much of the justification for the use of restraints of pregnant inmates rests on the idea that pregnant women pose a flight and security risk. lauryn king writes: “violent pregnant inmates are also rare, but the construction of the “bad” and even dangerous mother distorts how correctional staff see and respond to them. in addressing the outlier of a pregnant inmate who poses a threat to herself and others, correctional officers and medical staff can use soft restraints instead of handcuffs and only restrain the hands, unless there is a legitimate threat to 194 columbia journal of race and law [vol. 10:2 on january 1, 2020, new york joined a growing number of states in signing a cash bail reform bill into law.230 the bill created provisions for pretrial detention, amended criminal procedure and judiciary law, and eliminated cash bail.231 however, almost immediately after the law went into effect, a wave of political pressure threw lawmakers into chaos. on april 1, 2020, governor andrew cuomo and a group of democratic state lawmakers reached a deal that virtually reversed the january reform bill by increasing the number of defenses for which judges would have the discretion to set bail.232 while groundbreaking work continues in the “end cash bail” movement,233 with many groups focusing on black women who are detained pretrial,234 cash bail reform may not be the ultimate relief for the reality that being detained while pregnant causes irrevocable and unmitigable harm. v. conclusion safety that necessitates restraining the legs. if needed, staff can also use soft restraints on the legs, and officers can defer to the medical staff present and the comfort of the inmate in making the decision to restrain further. if shackled, staff can allow the inmate to change position as required for comfort or medical attention, as complications may arise from restricted movement.” king, supra note 140, at 62. 230 roxanna asgarian, the controversy over new york’s bail reform law, explained, vox (jan. 17, 2020, 8:30 am), https://www.vox.com/identities/ 2020/1/17/21068807/new-york-bail-reform-law-explained). 231 id. 232 jonathan ben-menachem, cuomo’s bail reform reversal risks explosive coronavirus spread in jails, slate (apr. 1, 2020), https://slate.com/newsand-politics/2020/04/cuomo-bail-reform.html. 233 the “end cash bail” movement is “a broad coalition of organizations and bail funds within the movement for black lives.” nnennaya amuchie, cash bail fuels the prison industrial complex. but we can stop it., rewire.news (apr. 10, 2018, 1:55 pm), https://rewire.news/article/2018/ 04/10/cash-bailstop-it/. 234 see, e.g., erin. e. evans, #freeblackmamas works to bail black mothers out of jail in time for mother's day, nbc news (may 11, 2019), https://www.nbcnews.com/news/nbcblk/freeblackmamas-works-bail-blackmothers-out-jail-time-mother-s-n1004511. no. 10:2] the failure to protect 195 all women, including economically disadvantaged women and women of color, have particular perinatal needs. unfortunately, the american carceral system regularly denies individuals their human rights to a sovereign conception, pregnancy, and birth. detainment necessarily involves a substantial risk of serious harm to the health and safety of pregnant pretrial detainees. women of color are disproportionately justice-impacted and face an additional unique and nefarious set of harms while incarcerated. the recent adoption of an objective deliberate indifference standard in the second circuit may make it possible for pregnant pretrial detainees to prevail on failure to protect claims alleging fourteenth amendment violations. it is impossible to maintain a healthy, safe, and autonomous pregnancy while detained. microsoft word cjrl_johnson_final.docx russian election interference and race-baiting darin e.w. johnson0f* russian interference in the 2016 united states presidential election exposed the nation’s vulnerability to targeted campaign disruption by foreign intelligence actors through social media. the russian cyber disinformation campaign exploited racial divisions in the united states to undermine public confidence in american electoral processes and institutions, revealing how those divisions can be weaponized. the campaign fed on racial divisions arising from institutionalized state practices that have a disparate discriminatory effect on racial minorities. successful in their online interference in 2016, russian operatives continued to stoke these divisions in the 2018 midterm election and have begun to do so in the 2020 presidential election campaign. russia will continue to stir racial division in future elections, and other states may follow suit. to combat this threat, reframing the manner in which national security institutions address matters of race is necessary. this article advocates that national security institutions adopt an explicit “racism as national security threat” framework in place of the implicit “minority race as threat” framework that has previously shaped national security institutions’ behavior. it traces how a minority race as threat framework has historically guided national security institutional action in significant ways. further, it elucidates how a racism as national security threat framework promotes american antidiscrimination law and international human rights law, and how the strategic * associate professor of law, howard university school of law; j.d., harvard law school; b.a., yale college. prior to entering the academy, the author worked for over a decade in the united states national security community as an attorney within the department of defense and the department of state. the author would like to thank the howard university school of law for a 2018 summer research grant that supported the drafting of this article. he would also like to thank the participants of the john mercer langston writing workshop for their helpful comments and feedback. the author would further like to thank his research assistant, kanysha phillips, husl class of 2019, for her assistance with this article. he would also like to thank the editors of the columbia journal of race and law for their thoughtful edits, comments, and suggestions throughout the editorial process. 192 columbia journal of race and law [vol. 9:2 retrenchment of policies, programs, and practices that engender racial discrimination will reduce american vulnerability to foreign exploitation. ultimately, this article seeks to popularize the understanding that racism subverts american national security, and frame the curtailment of institutionalized racism as a national security priority of the united states. i. introduction ............................................................. 193 ii. russian exploitation of racial division .............. 197 a. russian cyber interference in the 2016 election and beyond ............................................................ 198 b. cold war geopolitics and race ............................. 210 c. racial polarization as a global strategy .............. 212 iii. national security interest convergence .......... 213 iv. a race as threat national security approach .................................................................... 217 a. race as threat ....................................................... 218 1. jim crow .......................................................... 219 2. japanese american internment ...................... 222 3. cointelpro ................................................. 224 b. race as threat profiling after 9/11 ....................... 230 v. current legal frameworks do not fully address russia’s cyber campaign .......................... 236 a. united states legal prohibitions against foreign election interference ................................ 236 b. international law prohibitions against foreign intervention.............................................. 238 c. international law prohibitions against the incitement of racial hatred .................................. 242 vi. toward a new racism as threat national security program ..................................................... 244 a. the post-racial myth following the obama election .................................................................. 244 b. racial division during the trump administration ....................................................... 247 c. toward a racism as threat national security framework ............................................................. 248 d. legal underpinnings of a racism as threat national security framework ............................... 249 no. 1:191] russian election interference 193 vii. operationalizing a racism as threat national security approach ................................................... 252 a. regulating social media platforms ....................... 253 b. national security strategy targeting racism ...... 256 1. targeting racism through executive order ................................................................ 257 2. a model national security strategy and executive order ............................................... 259 3. a response to critiques ................................... 261 c. bolstering legislative reform ............................... 262 viii. conclusion................................................................ 262 i. introduction widespread russian interference in the 2016 united states presidential election through social media exposed the extent to which the united states is vulnerable, technologically and socially, to targeted foreign election disruption. the russian security state studied and exploited pandemic racial divisions to depress american voters’ confidence in electoral processes and faith in their democratic institutions.1 this exploitation was possible chiefly because institutionalized racism—perpetuated in the form of police shootings of unarmed african americans,2 racial profiling, and mass incarceration—had already contributed to racial polarization in the united states.3 1 ken dilanian & ben popken, russia favored trump, targeted african-americans with election meddling, reports say, nbc news (dec. 17, 2018), https://www.nbcnews.com/politics/politics-news/russia-favoredtrump-targeted-african-americans-election-meddling-reports-say-n948731 [https://perma.cc/a7lv-rtka]. 2 this article uses the terms “black” and “african american,” at times interchangeably, to refer to the community of people of african descent present in the united states. neither term is intended to exclude anyone not born in the united states nor possessing citizenship or residency status in the united states. the terms are intended to be inclusive of anyone of the african diaspora, present in the united states, who has been or could be impacted by policies and practices targeted at people based upon their african descent. the author acknowledges that race is a social construct. 3 see, e.g., on views of race and inequality, blacks and whites are worlds apart, pew res. ctr. (june 27, 2016), http://www.pewsocialtrends .org/2016/06/27/on-views-of-race-and-inequality-blacks-and-whites-areworlds-apart/ [https://perma.cc/hbv5-klav] (finding “profound differences 194 columbia journal of race and law [vol. 9:2 russia’s actions in 2016 were not unprecedented. during the cold war, russia exploited the united states’ mistreatment of minority populations to further its geopolitical agenda; the united states was susceptible to such exploitation due to ongoing institutionalized racism.4 as this article will establish, the policies of american security institutions have reflected the racial biases present in the united states, often resulting in the treatment of minority communities as a security problem that must be contained through over-policing, racial profiling, mass incarceration, race-based internment, and suppressive investigation. consequently, minority racial identity itself has historically been seen as a security threat, as illustrated by examples such as the internment of japanese americans during world war ii5 and the infiltration and disruption of civil rights organizations in the 1960’s and 1970’s.6 racialized state security practices continue to exist today—“broken windows” policing, stop-and-frisk policies, and racial profiling practices have effectively branded african american communities as criminal.7 similarly, post-9/11 domestic surveillance programs, targeted religion-based investigations, and racial profiling have categorized muslim community members as terrorists,8 just as aggressive immigration enforcement actions have deemed latinx community between [b]lack and [w]hite adults in their views on racial discrimination, barriers to [b]lack progress and the prospects for change”). 4 see generally mary l. dudziak, cold war civil rights: race and the image of american democracy (william chafe et al. eds., 2d prtg. 2002). 5 see korematsu v. united states, 323 u.s. 214, 214–15 (1944). 6 s. rep. no. 94-755, at 6–7 (1976); see also united states v. u.s. dist. court (keith), 407 u.s. 297 (1972) (concerning government electronic surveillance of a civil rights activist’s communications). 7 see justin peters, loose cigarettes today, civil unrest tomorrow: the racist, classist origins of broken windows policing, slate (dec. 5, 2014), https://slate.com/news-and-politics/2014/12/edward-banfield-theracist-classist-origins-of-broken-windows-policing.html [https://perma.cc/ l6ny-earj]; see also n.y. advisory comm. to the u.s. comm’n on civil rights, the civil rights implications of “broken windows” policing in nyc and general nypd accountability to the public (2018), https://www .usccr.gov/pubs/2018/03-22-nysac.pdf [https://perma.cc/9rhl-5ptf]. 8 leti volpp, the citizen and the terrorist, 49 ucla l. rev. 1575, 1577–82 (2002); see also khaled a. beydoun, islamophobia: toward a legal definition and framework, 116 colum. l. rev. online 108, 108–11 (2016). no. 1:191] russian election interference 195 members suspicious “illegals” who are dehumanized in political rhetoric.9 this racial legacy is unsurprising because the nation itself was founded through processes rooted in racial oppression: the enslavement of africans and the decimation of indigenous americans. these original sins created racial conflict that has continuously threatened the broader security of the united states. internal violence in the form of slave revolts, the civil war, and the indian wars were inevitable given the state’s oppression and subjugation of africans and indigenous people.10 over time, racial oppression in the united states benefitted foreign state enemies because it delegitimized the american democratic project on the world stage, thereby undermining the united states’ ability to achieve its geopolitical objectives.11 today, a new external threat, in the shape of weaponized racial division on social media, has arisen. social media provided the perfect platform for the russian interference operation—it enabled russian agents to construct false identities, target online communities with “fake news” and advertisements, and organize rallies and other activities furthering racial division.12 the russians ran a focused and specific campaign intended to divide and disrupt american communities.13 this campaign mirrored historical russian election interference efforts throughout europe that likewise sought to sway electoral outcomes by inflaming racial, ethnic, and other societal divisions.14 9 julie hirschfeld davis, trump calls some unauthorized immigrants “animals” in rant, n.y. times (may 16, 2018), https://www. nytimes.com/2018/05/16/us/politics/trump-undocumented-immigrantsanimals.html [https://perma.cc/ezs6-unxm]. 10 the violent, internal racial conflict that the united states has experienced over the centuries—slave revolts, the so-called “indian wars,” the civil war, race riots—is a result of state policies that enslaved and oppressed people of african descent and seized land from native populations. since before the nation’s founding, national security and domestic stability have been undermined by policies of racial oppression. 11 see generally derrick bell, racial realism, 24 conn. l. rev. 363 (1992); mary dudziak, desegregation as a cold war imperative, 41 stan. l. rev. 61 (1988). 12 indictment, united states v. internet research agency llc, no. 1:18-cr-00032-dfl, 2018 wl 914777 (d.d.c. feb. 16, 2018) [hereinafter indictment]. 13 id. 14 see discussion infra section ii.c. 196 columbia journal of race and law [vol. 9:2 this article’s goal is to widen the public conception that racism is an exploitable phenomenon that undermines american national security, and to frame the retrenchment of institutionalized racism as a national security priority of the united states.15 part ii of the article provides background on russian interference in the 2016 presidential election campaign, the 2018 midterm election, and ongoing interference leading up to the 2020 election. it outlines how russia’s security services capitalized on racism in a widespread and systematic manner that affected the majority of americans. it also discusses how russia’s efforts were a continuation of its use of propaganda regarding american race relations during the cold war and how russia has similarly engaged in ethnic division campaigns in other countries. part iii introduces the idea of national security interest convergence, which posits that anti-discriminatory goals are best achieved when they align with the priority interests of the majority community and elite policymakers. it argues that the current russian interference campaign demonstrates the danger that inflamed racial division poses to national security. specifically, it calls for an understanding of national security as encompassing the protection of a full, rich, and inclusive democratic project in which americans and foreign nations maintain faith. it advocates for the promotion of antidiscrimination measures as a national security priority that protects our democratic institutions from foreign intervention. part iv elaborates on the theory that national security institutions have historically approached issues of race through the use of a minority race as threat framework. this framework reflects how american policymakers and institutions, including those in the national security community, have regarded minority communities as threats to a racialized hierarchy and status quo. through time, this minority race as threat framework obscured the harm to national security caused by institutionalized racism that impacts minority communities. these practices forged fertile ground for russia’s racial exploitation 15 this article focuses on the retrenchment of institutionalized racism. the retrenchment of personal racial biases and general societal discrimination are beyond the scope of this piece. the national security justification for the retrenchment of institutionalized racial discrimination that this article offers could also serve as justification for programs and initiatives that seek to alleviate personal racial bias and societal discrimination. no. 1:191] russian election interference 197 campaign. part v then discusses the domestic and international legal schemes that apply to foreign election interference. it concludes that these legal structures were not designed to address the novel issue of russia’s online weaponization of race and suggests that new approaches are necessary to respond to such interference. part vi presents the solution to the minority race as threat approach to national security and to russian exploitation of racial division, which is the adoption of a racism as threat framework that explicitly identifies institutionalized racism and discrimination as national security threats. part vii of this article operationalizes the racism as threat approach and calls for the ratification of antidiscrimination measures that prioritize the retrenchment of institutionalized discrimination. these measures include, among others, the express recognition of racism as a national security threat in executive orders, national security planning documents, and federal, state, and local legislation and policy planning. part viii concludes with an analysis of how a racism as national security threat framework furthers the equal protection and anti-subordination objectives of american and international antidiscrimination law. the framework accomplishes this by creating a powerful policy rationale for state actors to proactively eliminate practices at the federal and local level that have discriminatory effects on racial minorities, further internal racial division, and foster opportunities for foreign manipulation. the new framework converges an antidiscrimination agenda with a national security agenda, promising greater protection for the civil rights of minority communities and for american democratic processes. ii. russian exploitation of racial division beginning with the 2016 presidential campaign, russia used social media to strategically exploit internal racial divisions in the united states in order to affect electoral outcomes.16 16 special counsel robert mueller’s report on his investigation into russian interference during the 2016 presidential election reveals that russian operatives first began creating social media accounts in the united states in mid-2014, sending operatives to the united states to gather photographs and other information to create fictitious american personas for social media accounts and group pages. these false accounts and group pages addressed divisive political issues and were designed to attract large 198 columbia journal of race and law [vol. 9:2 russia’s racially divisive social media campaign parallels recent russian campaigns to agitate ethnic division in european countries with the purpose of impacting political elections. russia’s disinformation campaign in the united states is part of a modern-day global strategy of racial division that has a historical antecedent in the united states—russia’s utilization of american racial division for geopolitical ends during the cold war. a. russian cyber interference in the 2016 election and beyond on january 17, 2017, two months after the 2016 united states presidential election, the central intelligence agency (cia), federal bureau of investigation (fbi), and national security agency (nsa) released a report stating that the russian government had conducted an extensive social media campaign to influence the election.17 the intelligence agencies concluded that russian president vladimir putin ordered the campaign and that “russia’s goals were to undermine public faith in the us democratic process, denigrate secretary clinton, and harm her electability and potential presidency.”18 they further deduced that the russian disinformation campaign was widespread and multifaceted, encompassing both covert cyber activity and overt activity by russian agencies, stateowned media, third party intermediaries, and paid social media users.19 the agencies assessed that the operation was a continuation of long-established russian efforts to influence american elections but marked a significant escalation in the level of directness, activity, and scope of effort.20 moreover, they audiences—eventually, they became the foundation for russia’s “active measures” campaign in the 2016 presidential election. “active measures” is a term russian intelligence operatives use to refer to campaigns intended to influence international affairs. 1 robert s. mueller, iii, u.s. dep't of justice, report on the investigation into russian interference in the 2016 presidential election 14–15 (2019) [hereinafter mueller report vol. 1], https://www.justice.gov/storage/report.pdf [https://perma.cc/b4tfhamf]. 17 office of the dir. of nat’l intelligence, ica 2017-01d, assessing russian activities and intentions in recent u.s. elections (2017) [hereinafter odni]. 18 id. at ii. 19 id. 20 id. no. 1:191] russian election interference 199 characterized the campaign as an extension of russia’s enduring objective to undermine the united states-led liberal democratic order, which russia perceives as a direct threat to putin’s regime.21 an analyst with the alliance for securing democracy22 determined that the russian effort to foment racial division intended to weaken the united states’ democratic institutions, thereby elevating russia’s standing in the world.23 in addition to covertly acquiring and leaking e-mails from the democratic national committee and clinton campaign chairman john podesta to wikileaks at strategic moments during the campaign cycle, the russian influence campaign relied heavily on social media channels.24 the internet research agency (ira), a russian entity with ties to the kremlin,25 hired hundreds of “trolls”26 to post fake news and socially divisive content on facebook, twitter, youtube, and other platforms.27 facebook reported that the ira posted content that reached over 140 million of its users.28 the department of justice (doj) appointed special counsel robert mueller in may 2017 to investigate, among other things, russian interference in the 2016 presidential election and any links or coordination between the russian 21 id. at 1. 22 the alliance for securing democracy is a bipartisan, transatlantic initiative, housed at the german marshall fund of the united states, that “develops comprehensive strategies to defend against, deter, and raise the costs on russian and other state actors’ efforts to undermine democracy and democratic institutions.” about us, alliance for securing democracy, https://securingdemocracy.gmfus.org/about-us/ [https://perma.cc/k4gx-3dyy]. the alliance works to publicly document and expose vladimir putin’s ongoing efforts to subvert democracy in the united states and europe. id. 23 nina jankowicz, the top three trends we miss when discussing russian ads, alliance for securing democracy (may 15, 2018), http://securingdemocracy.gmfus.org/blog/2018/05/15/top-three-trends-wemiss-when-discussing-russian-ads [https://perma.cc/6ust-axtl]. 24 jarred prier, commanding the trend: social media as information warfare, 11 strategic stud. q. 50, 72 (2017). 25 adrian chen, the agency, n.y. times mag. (june 2, 2015), https://www.nytimes.com/2015/06/07/magazine/the-agency.html [https:// perma.cc/8drs-bjml]. 26 “trolls” refers to people who disrupt online interactions with antagonistic and offensive rhetoric and posts. id. 27 jonathan masters, russia, trump and the 2016 u.s. election, council on foreign rel. (feb. 26, 2018), https://www.cfr.org/back grounder/russia-trump-and-2016-us-election [https://perma.cc/r8tm-gq82]. 28 id. 200 columbia journal of race and law [vol. 9:2 government and the trump campaign.29 mueller’s february 2018 indictment of three russian agencies, including the ira, and thirteen russian individuals spells out the scope of the operation.30 the indicted russian defendants allegedly covertly operated social media accounts, bought political advertisements, and staged political rallies in the united states.31 the indictment states that the defendants allegedly created false american personas and operated social media pages and groups designed to attract american audiences.32 they also allegedly stole identities of real americans to post on iracontrolled social media accounts, buy political advertisements, and promote political rallies on social media.33 by 2016, these fake social groups had gained hundreds of thousands of followers.34 for example, the ira-created twitter handle @ten_gop, which stood for “tennessee gop,” obtained over 100,000 online followers.35 according to the indictment’s allegations, the ira employed hundreds of staff in support of its online operation36— by 2015, russia had hired hundreds of staff at the ira “troll farm” in st. petersburg, russia, to disseminate false information over the internet using false identities.37 ira employees, known as “specialists,” were “directed to create ‘political intensity through supporting radical groups, users dissatisfied with [the] social and economic situation and oppositional social movements.’”38 the specialists created thematic groups on social media sites such as facebook and instagram, covering a cross 29 rod j. rosenstein, office of the deputy attorney gen., order no. 3915-2017, appointment of special counsel to investigate russian interference with the 2016 presidential election and related matters (2017). 30 indictment, supra note 12. 31 id. 32 id. ¶ 4. 33 id. 34 id. ¶ 34. 35 andrew prokop, 23 tweets from @ten_gop, one russian-run twitter account mentioned in mueller’s new indictment, vox (feb. 16, 2018), https://www.vox.com/policy-and-politics/2017/10/19/16504510/tengop-twitter-russia [https://perma.cc/dya7-cb3z]. 36 indictment, supra note 12, ¶ 10a. 37 chen, supra note 25. one russian newspaper estimated that the ira had 400 employees and a budget of $400,000 per month. id. 38 indictment, supra note 12, ¶ 33. no. 1:191] russian election interference 201 section of hot-button social issues, including immigration, with group names like “secured borders”; the black lives matter (blm) movement, with group names including “blacktivist”; and religion, with group names such as “united muslims of america” and “army of jesus.”39 ira managers guided employees on posts to increase their social media influence40 and trained staff on the nuances of american social issues like lgbtq rights and gun rights.41 by 2016, ira specialists were further directed to make posts supporting donald trump and bernie sanders while criticizing hillary clinton.42 the intelligence agents had a thorough understanding of the important role that minority turnout would play in the election. by mid-2016, the ira began an active campaign through social media to suppress minority voter turnout. for example, in the instagram group “woke blacks,” the ira posted: “[a] particular hype and hatred for trump is misleading the people and forcing blacks to vote killary. we cannot resort to the lesser of two devils. then we’d surely be better off without voting at all.”43 the specialists also posted the following through their blacktivist group on instagram: “choose peace and vote for jill stein. trust me, it’s not a wasted vote.”44 on election day, in the ira-controlled united muslims of america social media account, specialists posted: “american muslims [are] boycotting elections today, most of the american muslim voters refuse to vote for hillary clinton because she wants to continue the war on muslims in the middle east and voted yes for invading iraq.”45 mueller agreed with the prior conclusion of the intelligence community—the aim of the russian cyber disinformation campaign was to sow discord in the american electoral process.46 the ira had specifically referred to itself as engaging in “in 39 id. ¶ 34. 40 id. ¶ 38. 41 staff of senate comm. on foreign relations, 115th cong., putin’s asymmetric assault on democracy in russia and europe: implications for u.s. national security 45 (comm. print 2018) [hereinafter sfrc report]. 42 indictment, supra note 12, ¶ 43. 43 id. ¶ 46a. 44 id. ¶ 46b. 45 id. ¶ 46c. 46 id. ¶ 6. 202 columbia journal of race and law [vol. 9:2 formation warfare” against the united states, and the ira’s stated goal was to spread “distrust towards the candidates and the political system in general.”47 an ira staffer reported, ‘‘our goal wasn’t to turn the americans toward russia . . . [o]ur task was to set americans against their own government: to provoke unrest and discontent . . . .’’48 americans unwittingly assisted the russian specialists in carrying out their program.49 specialists targeted blm activists because of the racially divided response to the blm anti-police-brutality movement in the united states. russian news outlet rbc’s investigations revealed that russian specialists recruited black activists on facebook to organize blm rallies and self-defense classes and to produce content for russian-owned sites denouncing police brutality.50 when contacted, activists disclosed that they had no idea they were supporting a russian scheme.51 two ira-affiliated sites, black matters us and black fist, contacted black activists such as conrad james, a rally organizer, and omowale adewale, a mixed martial artist and trainer.52 the russians paid james to coordinate two political rallies in north carolina and adewale to arrange self-defense classes for the black community on behalf of the ira-created black fist group. unbeknownst to these activists, russia hoped to stoke societal fear of perceived black militancy through coverage of blm events.53 russian operatives also collaborated with white nationalist groups and used other unwitting white nationalists to stir their racially divisive messages online. andrew anglin, the american publisher of the daily stormer, which is the world’s largest neo-nazi website, spent 2015 in russia promoting his 47 id. ¶¶ 10c–10e. 48 an ex st. petersburg “troll” speaks out: russian independent tv network interviews former troll at the internet research agency, meduza (oct. 15, 2017), https://meduza.io/en/feature/2017/10/15/an-ex-stpetersburg-troll-speaks-out [https://perma.cc/qxv7-bt4z]. 49 indictment, supra note 12, ¶¶ 51–57. 50 sidney fussell, russia deceived black activists into aiding their election interference scheme, gizmodo (oct. 18, 2017), https://gizmodo. com/russia-deceived-black-activists-into-aiding-their-elect-1819657993 [https:// perma.cc/528n-rz4j]. 51 id. 52 id. 53 id. no. 1:191] russian election interference 203 racist rhetoric utilizing russian bots.54 this collaboration aligned with russia’s strategy to support far-right nationalist groups in western democracies.55 russia’s expedition of racial division persisted after the 2016 election—congressman tom garrett reported the fbi’s conclusion that russia continued to divide americans along racial lines by inciting such divisions at the 2017 unite the right rally in charlottesville, virginia.56 the same fake russian social media networks that infiltrated the 2016 election amplified divisive right-wing extremist rhetoric after charlottesville by posting right-wing extremist rhetoric and conspiracy theories on social media.57 racial division was fundamental to russia’s interference campaign. more than half of the russian advertisements on facebook, for example, used race as a central theme to sow disunion.58 facebook supplied 3000 advertisements from the ira and russian troll farms to congressional investigators, many of which employed racist tropes intending to influence the american public.59 facebook was particularly vulnerable to a strategic advertisement operation because its self-service advertisement model permits users to create their own advertisements and target recipients based on geography, demographics, and specific interests.60 this capacity allowed 54 luke o’brien, the making of an american nazi, atlantic (dec. 2017), https://www.theatlantic.com/magazine/archive/2017/12/the-makingof-an-american-nazi/544119/ [https://perma.cc/2dvz-jtj5]. 55 casey michel, inside russia’s alliance with white nationalists across the globe, thinkprogress (oct. 15, 2017), https://thinkprogress. org/interview-russia-the-far-right-f3fd27ceb928/ [https://perma.cc/5ll44mcv]. 56 deirdre shesgreen, gop lawmaker: russian meddling stirred racial divisions at fatal charlottesville rally, usa today (aug. 11, 2018), https://www.usatoday.com/story/news/politics/2018/08/11/russians-involvedunite-right-charlottesville-tom-garrett-jr/966669002/ [http://perma.cc/vca6 nxsm]. 57 isaac arnsdorf, pro-russian bots take up the right-wing cause after charlottesville, propublica (aug. 23, 2017), https://www.propublica. org/article/pro-russian-bots-take-up-the-right-wing-cause-after-charlottesville [https://perma.cc/s5cs-wd6q]. 58 chas danner, more than half of russian facebook ads focused on race, n.y. mag. (may 12, 2018), http://nymag.com/intelligencer/ 2018/05/more-than-half-of-russian-facebook-ads-focused-on-race.html [https:// perma.cc/ax8w-sd3s]. 59 id. 60 dylan byers, exclusive: russian-bought black lives matter ad on facebook targeted baltimore and ferguson, cnn (sept. 28, 2017), http:// 204 columbia journal of race and law [vol. 9:2 the russian agents to sow political and racial discord in particular communities.61 at least one blm advertisement specifically targeted the communities in baltimore and ferguson, which had experienced widespread protests and violent clashes with the police following the police killings of two unarmed black men—freddie gray and michael brown, respectively.62 one russian-created facebook page, posing as a muslim rights organization, attracted over 268,000 followers and posted an advertisement accusing senator john mccain and secretary clinton of funding the terrorist groups isis and al-qaeda.63 another advertisement, displaying black women with guns protesting police brutality, was designed to stoke fear of an armed blm uprising.64 the congressional black caucus held hearings with facebook coo sheryl sandberg in october 2017 to impress on facebook the need to counteract the thousands of russian advertisements on facebook, which were devised to negatively influence public sentiment regarding social justice movements like blm.65 congressman andre carson also emphasized the effect that russian advertisements can have on u.s. government action. he noted the august 2017 revelation by foreign policy magazine of an fbi intelligence report predicting premeditated attacks against the police by “[b]lack identity extremists,” and expressed concern that the russian advertisements were creating a narrative that the fbi would adopt.66 democrats on the house intelligence committee released over 3500 political advertisements posted by the russians money.cnn.com/2017/09/27/media/facebook-black-lives-matter-targeting/ index.html [https://perma.cc/5dwl-8qyq]. facebook allows creators of advertisements to target their advertisements at core audiences, including groups defined by location or demographics such as age, race, gender, and political views. see find your audience: your next customers are here, facebook, https://www.facebook.com/business/ads/ad-targeting [https://perma. cc/4l5r-s5y7]. 61 id. 62 id. 63 fussell, supra note 50. 64 id. 65 elana schor & heather caygle, cbc scolds facebook over black lives matter ads, politico (oct. 12, 2017), https://www.politico.com/ story/2017/10/12/facebook-black-lives-matter-ads-cbc-243715 [http://perma. cc/2n4t-rfv2]. 66 id. no. 1:191] russian election interference 205 to demonstrate the scope of russian intrusion on social media.67 russia’s agenda to propagate social division in the 2018 election was evident by the fact that many of the more than 3500 political advertisements produced on facebook and instagram did not support individual candidates, but rather focused on hot-button social issues such as police brutality, immigration, lgbtq rights, and gun rights.68 viewed in totality, it became clear that the russians produced advertisements with diametrically opposed positions on the same social issues with the goal of inflaming divisions in american society.69 facebook estimates that the political advertisements were viewed by more than ten million americans during the 2016 election campaign.70 in addition to the 3500 political advertisements already released, democrats on the house intelligence committee have promised to publish some of the more than 80,000 organic posts on facebook and 120,000 organic posts on instagram that reached over 146 million americans.71 these posts also used racial controversies to exacerbate divisions. for example, russian agents were responsible for generating the impression that mass violence was occurring on the university of missouri campus in the midst of peaceful student protests about the treatment of african americans.72 the false allegations went viral and people on the campus feared that a violent uprising had occurred.73 the senate select committee on intelligence (ssci) commissioned two reports on russian interference in the election based on the materials submitted to them by social media companies. draft copies of the reports were released publicly in december 2018.74 both relied on information sub 67 issie lapowsky, house democrats release 3,500 russia-linked facebook ads, wired (may 10, 2018), https://www.wired.com/story/housedemocrats-release-3500-russia-linked-facebook-ads/ [https://perma.cc/b5zf qdce]. 68 id. 69 id. 70 nitasha tiku, how russia “pushed our buttons” with fake online ads, wired (nov. 3, 2017), https://www.wired.com/story/how-russiapushed-our-buttons-with-fake-online-ads/ [https://perma.cc/xak6-wegu]. 71 lapowsky, supra note 67. 72 prier, supra note 24, at 68–70. 73 id. 74 dilanian & popken, supra note 1. 206 columbia journal of race and law [vol. 9:2 mitted to the ssci by facebook, twitter, and google as well as social media data delivered from additional sources.75 together, the two studies constitute the most comprehensive analysis to date of ira activity on social media platforms during the 2016 presidential election and beyond. the first report, the ira, social media and political polarization in the united states, 2012-2018, produced by the university of oxford and graphika, assessed that between 2015 and 2017, thirty million users shared facebook and instagram posts composed by the ira.76 the report also determined that the ira campaign was designed to polarize the american public and to interfere in the election by: (1) encouraging african americans to boycott the election or use incorrect voting procedures, (2) encouraging latinx voters to distrust american institutions, (3) encouraging extreme right-wing voters to be more confrontational, and (4) spreading sensationalist, conspiratorial, and false information to voters across the political spectrum.77 the second report, the tactics and tropes of the internet research agency, compiled by new knowledge, revealed that the russian cyber disinformation scheme was much more prominent on instagram than had previously been reported and that the ira began to shift its activity to instagram in 2017 after the media began reporting on their facebook and twitter operations.78 the new knowledge report concluded that the most prolific element of the russian cyber operation specifically targeted the african american community by recruiting black audiences79 through the promotion of authentic black media.80 the social media campaign also targeted black audiences for voter suppression through malicious misdirection, candidate support redirection, and turnout depression. the report concluded that active and ongoing russian cyber 75 renee diresta et al., new knowledge, the tactics and tropes of the internet research agency 8 (2018) [hereinafter new knowledge report]; philip n. howard et al., the ira, social media and political polarization in the united states, 2012–2018, at 3 (2018). 76 howard et al., supra note 75, at 3. 77 id. 78 new knowledge report, supra note 75, at 8. 79 id. 80 id. no. 1:191] russian election interference 207 operations continued after the 2016 election cycle to the present day.81 on march 22, 2019, special counsel mueller submitted his final report on the investigation of russian interference in the 2016 presidential election, collusion by president donald trump’s campaign, and presidential obstruction of justice to the attorney general.82 attorney general barr released a four-page summary of the report, which stated that the report determined that russia had engaged in an insidious effort to influence the 2016 election by (1) spreading disinformation and sowing social discord through social media and (2) hacking the e-mail accounts of the clinton campaign and dnc officials and releasing them through wikileaks and other intermediaries.83 although mueller indicted several russian individuals and entities for election interference, his investigation did not find sufficient evidence to charge trump campaign officials with conspiracy to support the russian effort.84 barr also stated that mueller was unable to reach a determination on the question of obstruction of justice and that accordingly, barr made his own conclusion that the record was insufficient to substantiate obstruction of justice charges.85 in response to a request from congress to release 81 id. at 7. 82 sharon lafraniere & katie benner, mueller delivers report on trump-russia investigation to attorney general, n.y. times (mar. 22, 2019), https://www.nytimes.com/2019/03/22/us/politics/mueller-report.html [https://perma.cc/65yt-twse]. 83 read attorney general william barr’s summary of the mueller report, n.y. times (mar. 24, 2019), https://www.nytimes.com/interactive/ 2019/03/24/us/politics/barr-letter-mueller-report.html [https://perma.cc/ 94jq-3tr2]. 84 id. 85 id. although mueller did not make a prosecutorial decision on obstruction of justice, his report clearly states that he was also not clearing the president of wrongdoing. instead, the report lays out several instances in which the president appeared to have obstructed justice and the legal rationale for how congress could so find. see 2 u.s. dep't of justice, report on the investigation into russian interference in the 2016 presidential election 8 (2019) [hereinafter “mueller report vol. 2”]. mueller likely decided to leave this decision to congress, as he was unable to indict a sitting president under longstanding justice department policy. see id. at 1 (“the office of legal counsel (olc) has issued an opinion finding that ‘the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’. given the role of the special 208 columbia journal of race and law [vol. 9:2 the full report,86 barr issued a redacted version to congress and the public on april 18, 2019.87 the mueller report detailed the scope of the russian interference campaign. it found that the ira had hundreds of thousands of american participants in its facebook groups and on its instagram accounts.88 the ira’s facebook accounts alone reached over 126 million people.89 similarly, the ira controlled over 3800 twitter accounts that had thousands of american followers, including several united states political leaders, and may have reached over 1.4 million people.90 several high profile figures retweeted information from ira accounts, and the media reported on tweets from ira accounts as if they were posted by americans.91 regarding the russian online interference campaign, the mueller report noted that although thirteen russian individuals and three russian entities, including the ira, had been indicted by a washington, d.c. federal grand jury, the defendants remained at large.92 though mueller was limited in his investigation to studying the scope of russian election interference in the 2016 campaign, media and expert analysis reveal that russia attempted to interfere in the 2018 midterm elections93 and is most likely already interfering in the 2020 presidential election cycle, as of the time of this article. cyber analysts are not yet able to determine definitively that russia is the source of the counsel as an attorney in the department of justice . . . this office accepted olc’s legal conclusion for the purpose of exercising prosecutorial discretion.”). 86 press release, u.s. house comm. on the judiciary, house committee chairs take next step for release of full mueller report and underlying evidence (apr. 2, 2019), https://judiciary.house.gov/news/pressreleases/house-committee-chairs-take-next-step-release-full-mueller-reportunderlying [https://perma.cc/5d2x-m4bu]. 87 mueller report vol. 1, supra note 16. 88 id. at 15. 89 id. 90 id. 91 id. at 27–28. 92 id. at 174. the only litigation following the indictment involved one of the indicted russian entities, concord management and consulting llc, which moved to have its charges dismissed by the district court for the district of columbia. id. 93 alex ward, the 2018 midterm election hasn’t been hacked—but russia is still trying to influence it, vox (nov. 6, 2018), https://www. vox.com/policy-and-politics/2018/11/6/18067756/midterm-election-russiahacking-interference-meddling-china-iran [https://perma.cc/f85n-74nu]. no. 1:191] russian election interference 209 foreign cyber campaign targeting 2020 democratic presidential candidates, but they have noted that the attacks share similar characteristics with russia’s ira troll farm.94 a 2019 investigative study by politico, assisted by guardians.ai (a technology company that works to disrupt cyberattacks and protect prodemocracy groups), concluded that bot-like social media accounts had targeted democratic primary candidates senator kamala harris, senator elizabeth warren, senator bernie sanders, and former congressman beto o’rourke with viral attacks involving accusations intended to inflame racial division.95 one attack falsely accused senator warren of having a blackface doll in her kitchen during a new year’s eve livestream on social media.96 another cyberattack accused beto o’rourke of using a racial epithet in a voicemail in the 1990’s.97 the accounts also utilized racist and sexist stereotypes in sensationalizing senator harris’s former relationship with san francisco mayor willie brown.98 the goal of the attacks is to undermine candidacies and to instigate racial discord within the democratic primary.99 guardians.ai found that a core group of 200 accounts was responsible for the attacks, and these same accounts were active in spreading disinformation during the 2018 midterm election.100 whether the current disinformation offensive against democratic candidates are proven to originate from russia or from another source, they show that russia’s strategic use of social media platforms to disseminate disinformation and drive a wedge among the american public with racebaiting techniques has become the norm in american election cycles. current and former american intelligence analysts and operatives predict that russia will extend their cyber disinformation campaign into the 2020 election cycle because of their successful attempt to stir social division and political 94 natasha korecki, “sustained and ongoing” disinformation assault targets dem presidential candidates, politico (feb. 20, 2019), https://www.politico.com/story/2019/02/20/2020-candidates-social-mediaattack-1176018 [https://perma.cc/g67c-wjhb]. 95 id. 96 id. 97 id. 98 id. 99 id. 100 id. 210 columbia journal of race and law [vol. 9:2 chaos, as illustrated by the political divide within congress over how to respond to the mueller report’s release.101 b. cold war geopolitics and race russia’s exploitation of racial divisions in the united states did not begin with the 2016 presidential election. retired brigadier general bruce mcclintock, the former senior defense official at the united states embassy in moscow, observed that the russian ira troll farm tactics are in keeping with russia’s past efforts to inflame racial division in the united states, including reports that the kgb drafted supposed letters from the ku klux klan (kkk) and spread various conspiracy theories about government involvement in martin luther king jr.’s assassination.102 during the decades-long cold war that followed world war ii, russia regularly used american racial strife for its own geopolitical aspirations. russia exploited the situation in both external and internal ways. externally, russia proffered arguments about the moral hypocrisy of a liberal democracy that discriminated against minorities. internally, russia sought to agitate divisions with disinformation campaigns that built on racial tensions—a precursor to its 2016 election interference. in january 1948, in a new york times magazine article, robert cushman, a cornell university professor and member of president truman’s committee on civil rights, summarized the implications of racism in america to the post-world war ii global order: [t]he nation finds itself the most powerful spokesman for the democratic way of life, as opposed to the principles of a totalitarian state. it is unpleasant to have the russians publicize our continuing lynchings, our jim crow statutes and customs, our anti-semitic discriminations and our witch-hunts; but is it underserved? . . . [we] cannot deny the truth of the charges; we are becoming aware that we do not practice the 101 amy mackinnon, what the mueller report tells us about russia’s designs on 2020, foreign pol’y (apr. 19, 2019), https:// foreignpolicy.com/2019/04/19/what-the-mueller-report-tells-us-about-russiasdesigns-on-2020-kremlin-putin-intelligence/ [https://perma.cc/92gc-snnp]. 102 tiku, supra note 70. no. 1:191] russian election interference 211 civil liberty we preach; and this realization is a wholesome thing.103 similarly, american embassies around the world were forced to respond to inquiries and consistent press coverage about the mistreatment of african americans in the united states and how it undermined american moral leadership.104 in a 1949 cable, the united states embassy in moscow reported that the “negro question,” [was] [o]ne of the principal soviet propaganda themes regarding the united states. . . . [t]he soviet press hammers away unceasingly on such things as “lynch law,” segregation, racial discrimination, deprivation of political rights, etc., seeking to build up a picture of an america in which the negroes are brutally downtrodden with no hope of improving their status under the existing form of government.105 senator william benton warned his senate colleagues that soviet propaganda regarding american racism was greatest in those countries that were caught between the cold war philosophies of american democracy and soviet communism: “[t]he fate of mankind may be decided . . . in latin america, in germany, and the slavic countries of europe, among the dark-skinned nations of africa and southeast asia, and among the yellow skinned peoples on the asiatic mainland and the nearby island areas.”106 russian cold war propaganda sought to convince states emerging from colonialism that american liberal democracy was flawed and that aligning with the soviet union would better serve their interests. today, russian propaganda seeks to undermine western governments and their 103 dudziak, supra note 4, at 29 (quoting robert e. cushman, our civil rights become a world issue, n.y. times mag., jan. 12, 1948, at 12); dudziak, supra note 11; see also derrick a. bell, jr., brown v. board of education and the interest-convergence dilemma, 93 harv. l. rev. 518 (1980). 104 dudziak, supra note 4, at 29–37. 105 id. at 38. 106 id. at 39. 212 columbia journal of race and law [vol. 9:2 democratic institutions from within, and with the growth of social media, they have found the perfect platform to do so. c. racial polarization as a global strategy russia’s race-baiting and online proliferation of societal division in the 2016 united states presidential election is not only part of a long-standing geopolitical strategy to undermine the authority of the united states, but is also a key element of russia’s intent to pursue its interests in states globally. russia has been particularly active in foreign influence campaigns in europe for over two decades.107 the first wave involved russian intervention in former soviet states following the dissolution of the soviet union in 1991.108 the second wave began in 2014, when russia began to intervene in western european democratic elections.109 a 2018 senate foreign relations committee minority staff report on russian attacks on democracy in the united states and europe observed that [i]n consolidated democracies within the eu and nato, the russian government seeks to undermine support for sanctions against russia, interfere in elections through overt or covert support of sympathetic political parties and the spread of disinformation, and sow discord and confusion by exacerbating existing social and political divisions through disinformation and cultivated ideological groups.110 a key component of russia’s foreign election interference in europe is the sowing of racial, ideological, and societal discord through cyber disinformation campaigns, just as it does in the united states.111 the kremlin views the fostering of internal division in democratic states as a low-cost, high-reward tool for 107 lucan ahmad way & adam casey, russia has been meddling in foreign elections for decades. has it made a difference?, wash. post (jan. 8, 2018), https://www.washingtonpost.com/news/monkey-cage/wp/ 2018/01/05/russia-has-been-meddling-in-foreign-elections-for-decades-hasit-made-a-difference [https://perma.cc/8jve-sctg]. 108 id. 109 id. 110 sfrc report, supra note 41, at 2. 111 id. at 38. no. 1:191] russian election interference 213 splitting its adversaries and undermining faith in democratic institutions.112 the expansion of the fairly unregulated social media space, where most individuals now consume their news, has created an ideal platform for russia’s division endeavor.113 immediately prior to, during, and after the 2016 presidential election, russia’s cyber disinformation campaigns in europe focused on social issues specific to the countries that they targeted, such as extreme nationalism, anti-semitism, islamophobia, xenophobia, and neo-nazism in austria, france, germany, hungary, italy, and latvia.114 russia sought maximum division by supporting ideologically opposed groups and viewpoints on both the right and left of the political spectrum.115 though russian intervention may be challenged by expanded regulation of social media, discussed in part vii, this article advocates for the proactive minimization of state practices in the united states that create fertile ground for russia’s tactics. such an approach would achieve antidiscrimination and national security goals that are in the interest of the american public. iii. national security interest convergence legal scholar derrick bell famously argued that civil rights advances for african americans in the courts did not occur merely because legal advocates were able to convince courts that those advances were just or required by the constitution.116 he advanced the argument that civil rights legal victories such as brown v. board of education instead reflected an “interest convergence” of the civil rights aims of the african american community with the broader interests of the demographic majority in the mid-twentieth century.117 bell contended that african americans had been challenging the insufficiency of inferior and segregated public schools for african american children for a century prior to brown, yet those challenges had never resulted in a determination that the constitution or the post-civil war equal protection clause 112 id. at 1. 113 id. at 6. 114 id. at 50–51. 115 id. at 52–53. 116 bell, jr., supra note 103, at 523. 117 id. (“the interest of [b]lacks in achieving racial equality will be accommodated only when it converges with the interests of [w]hites.”). 214 columbia journal of race and law [vol. 9:2 required integrated schools.118 in bell’s view, racial progress in the form of integrated schools occurred only when it was perceived to be in the interests of the racial majority. bell argued that the brown decision must be understood in light of its benefit not only to african americans, but also to the white community—particularly policymakers who understood the political and economic benefits at home and abroad that would come with desegregation.119 foreign policy elites understood the damage that oppression of african americans had inflicted on the united states’ reputation abroad, especially as it battled the communist soviet union for influence in newly independent countries emerging from colonialism and populated by people of color.120 federal government lawyers joined the naacp in advancing this cold war argument to the supreme court.121 the united states’ amicus brief in brown stated: it is in the context of the present world struggle between freedom and tyranny that the problem of racial discrimination must be viewed. . . . [for] discrimination against minority groups in the united states has an adverse effect upon our relations with other countries. racial discrimination furnishes grist for the communist propaganda mills, and it raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.122 professor sudha setty adopts bell’s interest convergence framework in arguing that legislators are not likely to protect marginalized groups from national security abuse if such action might be perceived as soft on counterterrorism by mainstream constituencies—unless the legislators are provided with an interest that is more palatable to those communities.123 this article 118 id. at 523–24 (citing roberts v. city of boston, 59 mass. 198 (1850) (an early challenge to inferior public schools for african americans)). 119 id. at 524. 120 id.; dudziak, supra note 11, at 118. 121 derrick a. bell, jr., racial remediation: an historical perspective on current conditions, 52 notre dame l. rev. 5, 12 (1976). 122 brief for the united states as amicus curiae at 6, brown v. bd. of educ., 347 u.s. 483 (1954) (nos. 1, 2, 4, 10). 123 see sudha setty, national security interest convergence, 4 harv. nat’l security j. 185, 206, 225 (2012). no. 1:191] russian election interference 215 posits that the inoculation of american democratic processes from foreign exploitation by reducing institutional discrimination is such a converged national security interest. in order to demonstrate how the advancement of antidiscrimination and national security interests converge in the present moment, it is necessary to define with specificity the converging interests. national security, broadly defined, encompasses the protection of the american people, government, homeland, infrastructure, and economic system from domestic and foreign threats.124 national security institutions comprise those state agencies charged with this task, including but not limited to: at the federal level, the department of defense (dod), the doj, the fbi, the cia, and the department of homeland security (dhs); and, at the state and local level, prosecutor offices, police departments, and law enforcement agencies.125 historically, national security institutions and their leadership—at both the national and local level—reflected the values and beliefs of dominant american culture and helped protect racially oppressive practices (such as slavery and jim crow laws) for nearly 200 years following american independence.126 124 for the purpose of this article, i adopt a definition of national security similar to “the protection of the state and its citizens [from internal and external threats] through a variety of means, including military might, economic power, diplomacy, and power projection.” functions of bureaucracy, lumen learning, https://courses.lumenlearning.com/boundless-political science/chapter/functions-of-bureaucracy/ [https://perma.cc/p6mw-9u9m]. 125 the national security act of 1947 created many of the national security institutions that exist today, including the national security council, the department of defense, the joint chiefs of staff, and the central intelligence agency. national security act of 1947, pub. l. no. 80253, §§ 101–211, 61 stat. 495, 496–505 (codified as amended at 50 u.s.c. § 3001 (2018)). other national security institutions, such as the department of justice and the federal bureau of investigation, preceded the national security act. the federal bureau of investigation was created on july 26, 1908, by memorandum of attorney general charles bonaparte. see a brief history: the nation calls, 1908-1923, fed. bureau investigations, https://www.fbi.gov/history/brief-history [https://perma.cc/xd5l-cmyv]. other institutions, such as the department of homeland security, were created much later. the department of homeland security was created by the homeland security act of 2002 in the aftermath of the 9/11 attacks. pub. l. no. 107-296, 116 stat. 2135 (2002). 126 as discussed in part iv, national and local political, judicial, military, and law enforcement forces sustained slavery and jim crow practices by passing and enforcing laws that made racial subordination a way of life for african americans for nearly 200 years (475 years if slavery during the pre-independence colonial era is included). 216 columbia journal of race and law [vol. 9:2 it was only in the latter half of the twentieth century that the african american community and allies successfully forced a conception of national security that encompassed the elimination of de jure segregation and race-based disenfranchisement.127 from its founding, the security and success of the american democratic project was inextricably linked to its treatment of african americans. the national security of the united states has been enhanced each time racially oppressive practices have been eliminated because the social division, and resulting violence, arising from the enforcement of and opposition to those institutions have ceased. this article argues that american national security interests encompass the protection of democratic institutions and electoral processes from foreign intervention. russia’s cyber disinformation campaign has sought to externally influence and destabilize american electoral processes by exploiting racial grievances and fostering racial polarization.128 the advancement of an antidiscrimination agenda focused on the retrenchment of institutional discrimination would alleviate a significant source of racial grievances for minority community members and reduce the opportunities for foreign exploitation of those legitimate grievances. modern-day forms of institutional discrimination in national security institutions include such practices as racial profiling, broken windows over-policing, law enforcement killings of unarmed african americans, race and identitybased investigative programs, and discriminatory immigration enforcement practices.129 these practices, controlled by federal and local security institutions, have negative racial impacts in minority communities that create fertile ground for foreign exploitation.130 the convergence of these two agendas— 127 as seen in segregated national institutions such as the armed forces and the federal civil service, segregation was not merely a southern issue, but a national one. kenneth l. karst, the pursuit of manhood and the desegregation of the armed forces, 38 ucla l. rev. 499, 520–21 (1991). 128 see discussion supra part ii. 129 for a discussion on immigration policies, see infra section vi.a. for a discussion on racial profiling after 9/11, see infra section iv.b. 130 see, e.g., lenese c. herbert, bête noire: how race-based policing threatens national security, 9 mich. j. race & l. 149, 156 (2003) (“race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of african americans. lack of judicial redress in the face of such policing irrevocably stains already beleaguered african americans (and others so policed) as inferior citizens. this, in turn, may actualize a no. 1:191] russian election interference 217 eliminating institutional discrimination and mitigating foreign intervention in electoral processes—calls for a national security project that places antidiscrimination at its core.131 iv. a race as threat national security approach america’s unfortunate historical treatment of race has always affected its broader national security given that its formation relied upon both slavery and the brutal conquest of native americans, which created the seeds for deep internal and external rifts. throughout the nineteenth and early twentieth century, wars (collectively called the “american indian wars”) were fought against native americans for territory, and slave rebellions were violently suppressed by american soldiers and state militias.132 the national security of the state became synonymous with the maintenance of a status quo that maintained minority oppression. laws were instituted to maintain control of both slaves and native americans as well catalyst of cooperative opportunity and vulnerability for those who seek to injure the united states, its institutions, and its people.”); see also supra part ii. 131 private racial discrimination, like institutional discrimination, has a negative impact on the experiences of minorities in the united states that creates the opportunity for foreign racial exploitation. though antidiscrimination law, and robust enforcement of that law, can mitigate private discrimination, private viewpoint discrimination cannot be eliminated by the state. this article, therefore, focuses on the prevention of institutional discrimination. specifically, it focuses on discrimination by security institutions because institutional practices are those most within the capacity of the state to prevent, and institutional discrimination has a sweeping impact on minority communities. as discussed in part vi, racism should be framed as a national security threat in order to advance american foreign policy goals and to safeguard electoral processes. such a framing is also likely to garner the support of a broader community of citizens for new anti-discrimination measures. 132 the post-independence american indian wars encompassed conflict from the cherokee-american wars of 1776 to 1794 through the wars on the western frontier, including the apache wars of 1849 to 1924. historian herbert aptheker identified more than 250 slave revolts and planned revolts in his pioneering study, american negro slave revolts, including gabriel prosser’s slave rebellion of 1800, denmark vesey’s slave revolt of 1822, and nat turner’s rebellion of 1831. herbert aptheker, american negro slave revolts, 1 sci. & soc’y 512, 537 (1937); see also slave rebellions: a timeline, pbs, www.pbs.org/independentlens/natturner/ slave_rebellions.html [https://perma.cc/pr57-8m6n]. prosser, vesey, and turner’s slave rebellions occurred during the timeframe aptheker analyzed. 218 columbia journal of race and law [vol. 9:2 as new migrants from china. the fugitive slave act of 1850,133 the indian removal act of 1830,134 and the chinese exclusion act of 1882135 all sought to maintain the status quo—african americans in bondage, native americans conquered and isolated, and immigrant chinese laborers denied citizenship. however, these policies of racial oppression themselves threatened american national security and stability because they divided the nation. ultimately, the stability and security of the united states was shattered by the civil war between northern and southern states fought over the institution of slavery.136 following the civil war, in which 750,000 lives were lost,137 a new status quo was envisioned by the union congress, which approved post-war constitutional amendments guaranteeing african americans freedom, citizenship, equal protection of the laws, and the right to vote.138 despite these constitutional changes, a century of jim crow segregation and racial terror against african americans soon commenced. a. race as threat during the pre-civil war period, the political leadership of the nation considered the freedom and equality of african americans and other minorities as antithetical to their vision of national security. national security meant stability of the status quo, which included protection of a system of racial superiority that oppressed minority groups. racial equality was a threat to that status quo. because racial minorities would continue to fight and advocate for their freedom and equality, they themselves became dangerous to this view of national security: minority race became a threat. this conception of 133 fugitive slave act of 1850, ch. 60, 9 stat. 462 (repealed 1864). 134 indian removal act of 1830, ch. 148, 4 stat. 411. 135 chinese exclusion act of 1882, ch. 126, 22 stat. 58. (repealed 1943). 136 tony horwitz, 150 years of misunderstanding the civil war, atlantic (june 19, 2013), https://www.theatlantic.com/national/archive/ 2013/06/150-years-of-misunderstanding-the-civil-war/277022/ [https:// perma.cc/rx6w-5nxp] (“[t]he civil war claimed more lives than all other american wars combined . . . .”). 137 daniel nasaw, who, what, why: how many soldiers died in the us civil war?, bbc (apr. 4, 2012), https://www.bbc.com/news/magazine17604991 [https://perma.cc/6v4l-dul2]. 138 u.s. const. amends. xiii–xiv, xv. no. 1:191] russian election interference 219 race as threat persists today. in the century that followed the civil war, american national security institutions engaged in actions that reflected this race as threat typology. 1. jim crow following the civil war,139 there was no community in greater need of state protection than the african american community, which faced a racial terror campaign by the kkk and southern segregationists. from the end of the civil war through the mid-twentieth century, white supremacist groups such as the kkk, the white league in louisiana, the white man’s party in alabama, and the south carolina red shirts formed and engaged in terror plots in black communities throughout the country—lynchings, murders, and rapes occurred against black citizens with impunity.140 with the compromise of 1877, president hayes removed federal troops from the south, effectively ending reconstruction and leaving newly freed black people to the mercy of these terror groups, which were supported by state agents.141 sheriffs, judges, and mayors enforced the newly formed black codes, which extended 139 the supreme court infamously determined in the dred scott case that african americans were not citizens, even if born in the country. dred scott v. sandford, 60 u.s. (19 how.) 393 (1857), superseded by constitutional amendment, u.s. const. amend. xiv. this view certainly reflected the policy of the times. african americans were not citizens and were therefore “others” not entitled to the national security protection of the state. in fact, as potential “spoilers” of the system of racial dominance and chattel slavery, they were threats to the state as it was conceived. the thirteenth and fourteenth amendments sought to rectify the supreme court’s pronouncement: former slaves were now free and citizens and presumably deserving of the national security protection of the state. 140 william y. chin, domestic counterinsurgency: how counterinsurgency tactics combined with laws were deployed against blacks throughout u.s. history, 3 u. miami race & soc. just. l. rev. 31, 47–48 (2013). 141 see generally nicholas lemann, redemption: the last battle of the civil war 184–85 (2006) (describing the state-led creation of the jim crow system in former confederate states that replaced the previously “informal and violent nullification of negro rights”); c. vann woodward, reunion and reaction: the compromise of 1877 and the end of reconstruction (1966) (discussing how the compromise of 1877 brought reconstruction to an end and how african americans feared the withdrawal of federal protection). see also steve hahn, homegrown terror, new republic (nov. 20, 2006), https://newrepublic.com/article/63909/home grown-terror [https://perma.cc/f24r-hvnc]. 220 columbia journal of race and law [vol. 9:2 slavery’s prohibition of african americans’ right to own property, receive an education, and enter into contracts or enforce rights and later became institutionalized throughout the south as jim crow segregation.142 appeals to the state for national security protection for african americans fell on deaf ears as federal troops withdrew from the south and defeated confederate troops waged their terror campaign against african americans as elected officials, state agents, and paramilitary hate groups.143 black americans were treated as threats to the historic system of white supremacy that state and local institutions sought to protect through widespread racial oppression.144 from the end of the civil war until the end of world war ii, so-called “race riots” resulted in the destruction of numerous african american communities.145 these riots were actually racial terror schemes visited on black communities at the whim of racist agitators.146 race riots occurred throughout the country in new orleans, atlanta, springfield, east st. louis, washington, chicago, mobile, beaumont, detroit, and harlem.147 rather than treat african americans as citizens 142 jennifer mason mcaward, defining the badges and incidents of slavery, 14 u. pa. j. const. l. 561, 573–74, 573 n.54, 581, 622 (2012) (“the ‘black codes’ were passed by each state of the former confederacy and sought to reimpose many of the legal restrictions that had applied to slaves prior to emancipation, particularly in relation to the exercise of contractual and civil rights. for example, the codes required the freedmen to make annual written contracts for their labor and provided that they would be subject to arrest and forfeiture of the entirety of their annual wages if they left before the contract's term. vagrancy laws were strengthened in an effort to ensure that freedmen agreed to such contractual provisions; those who lacked a ‘home and support’ were subject to arrest and enforced service to pay their debts.” (citation omitted)). 143 hahn, supra note 141; see also bell, supra note 11, at 376 (“those committed to racial equality also had to overlook the political motivations for the civil war amendments—self-interest motivations almost guaranteeing that when political needs changed, the protection provided the former slaves would not be enforced.”). 144 see hahn, supra note 141. 145 for more information about the race riots, see encyclopedia of american race riots (walter rucker & nathaniel upton eds., 2007). 146 chauncey devega, white america’s racial amnesia: the sobering truth about our country’s “race riots,” salon (may 1, 2015), https://www.salon.com/2015/05/01/white_americas_racial_amnesia_the_so bering_truth_about_our_countrys_race_riots_partner/ [https://perma.cc/ uhf6-4lfa]. 147 chin, supra note 140, at 46. no. 1:191] russian election interference 221 deserving of national security protection, state institutions and agents often failed to intervene or participated in the terror against black communities.148 one of the many tragic race riots was the tulsa race riot of 1921, which resulted in the destruction of a thriving black community—known as “black wall street”—by a white mob numbering in the hundreds.149 an african american lawyer in the community, buck colbert franklin, father of famed historian john hope franklin, provided an eyewitness account: i could see planes circling in mid-air. they grew in number and hummed, darted and dipped low. i could hear something like hail falling upon the top of my office building. down east archer, i saw the old mid-way hotel on fire, burning from its top, and then another and another and another building began to burn from their top.150 african american and native american residents of the greenwood neighborhood in tulsa, oklahoma had become wealthy due to oil reserves that they had discovered on their land.151 the wealth of this black community was conspicuous, leading to greenwood’s nickname of black wall street.152 their poorer white neighbors could not abet this success and, as recounted by buck franklin, nearly a dozen private planes air-bombed the community and blacks were machine-gunned 148 see, e.g., charles l. lumpkins, american pogrom: the east st. louis race riot and black politics 1 (2008) (“on july 2 and 3, 1917, rampaging white men and women looted and torched black homes and businesses and assaulted african americans in the small industrial city of east st. louis, illinois. the mob, which included police officers and national guardsmen, wounded or killed many black residents and terrorized others into fleeing the city.”). 149 deneen l. brown, they was killing black people, wash. post (sept. 28, 2018), https://www.washingtonpost.com/news/local/wp/2018/09/ 28/feature/they-was-killing-black-people/?utm_term=.39c58cd4d78f [https:// perma.cc/54um-qqrr]. 150 allison keyes, a long-lost manuscript contains a searing eyewitness account of the tulsa race massacre of 1921, smithsonian.com (may 27, 2016), https://www.smithsonianmag.com/smithsonian-institution/ long-lost-manuscript-contains-searing-eyewitness-account-tulsa-race-mass acre-1921-180959251/ [https://perma.cc/2hlj-t6ql]. 151 id. 152 brown, supra note 149. 222 columbia journal of race and law [vol. 9:2 down in the street.153 more than thirty-five blocks and 1200 homes were destroyed, and 300 people, almost all black, were killed.154 when the governor declared martial law and sent in the national guard to restore calm, any black person who had not already been imprisoned by white mobs and the local law enforcement supporting them were then placed in jail by the national guard.155 the national guard’s actions reinforced the position that national security institutions were protectors of white citizens—even those engaged in violent activity—and the victimized african american community was the enemy. white mob violence of this era often led to “racial cleansings,” where white mobs drove all of the black members out of entire cities.156 furthermore, state institutions such as local police, sheriffs, politicians, and judges colluded with white supremacist groups like the kkk to brutally enforce a century of jim crow segregation throughout the south (and de facto segregation in the north) where black citizens were denied equal education, housing, jobs, and opportunities.157 african americans were effectively treated as security threats by the state rather than citizens whose rights deserved protection. 2. japanese american internment african americans were not the only racial minority treated as a threat by american national security institutions. japanese americans endured one of the most infamous racebased national security deprivations of the twentieth century at the direction of the highest levels of the united states government. during world war ii, the united states military forced japanese americans, living in a region of california and the west coast designated as a military zone, to abandon their homes and relocate to internment camps in the middle of the country.158 the military justified relocation on the theory that japanese americans as a group were subversive 153 keyes, supra note 150. 154 id. 155 id. 156 chin, supra note 140, at 46–48. 157 tara mcandrew, the history of the kkk in american politics, jstor daily (jan. 25, 2017), https://daily.jstor.org/history-kkk-americanpolitics/ [https://perma.cc/egv3-t6uh]. 158 korematsu v. united states, 323 u.s. 214, 216–17 (1944). no. 1:191] russian election interference 223 and would share information to assist japanese enemy forces in an attack on the west coast.159 congress passed a statute making a violation of the military order a criminal offense.160 more than 110,000 people of japanese descent (70,000 of whom were citizens) were confined to these camps.161 the american military did not institute a similar policy for people of german descent nor people of italian descent in the united states, notwithstanding the fact that hitler’s germany and mussolini’s italy were also america’s enemies in the war. only japanese americans, as a group, were identified as a security threat deserving of internment,162 reaffirming the view that racial minorities were a security threat to the united states. fred korematsu, a japanese american citizen, refused the internment orders and was convicted of a criminal violation.163 he challenged his conviction in court, which led to the infamous and heavily-criticized supreme court korematsu decision. writing for the court, justice black stated that “korematsu was not excluded from the military area because of hostility to him or his race. he was excluded because . . . the properly constituted military authorities . . . decided that the military urgency of the situation demanded that all citizens of japanese ancestry be segregated from the west coast temporarily . . . .”164 in a strongly-worded dissent, justice murphy spelled out the racially discriminatory views underlying the military exclusion orders: individuals of japanese ancestry are condemned because they are said to be “a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.” they are claimed to be given to “emperor worshipping ceremonies” and to “dual citizenship.” . . . the main reasons 159 id. at 217. 160 act of mar. 21, 1942, ch. 191, 56 stat. 173 (codified as amended at 18 u.s.c. § 97a (supp. ii 1946)); see also korematsu, 323 u.s. at 228 (roberts, j., dissenting). 161 korematsu, 323 u.s. at 241–42 (jackson, j., dissenting). 162 id. 163 id. at 215–16 (majority opinion). 164 id. at 223. 224 columbia journal of race and law [vol. 9:2 relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of japanese americans and the dangers of invasion, sabotage and espionage. the reasons appear, instead, to be largely an accumulation of misinformation . . . that for years ha[s] been directed against japanese americans by people with racial and economic prejudices . . . . a military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.165 justice murphy’s dissent reveals the sweeping conclusions drawn about the japanese american community based on racial innuendo and discriminatory views, eviscerating any sound military judgement involved in the racial exclusion. the dissent goes on to note that, in contrast to the treatment of japanese americans, americans of german and italian descent who were detained during the war were subject to specific individual determinations regarding their subversive activity rather than broad, group-based accusations.166 in a time of national vulnerability and anxiety following japan’s attack on pearl harbor, racial biases and the fear of the minority japanese american race as threat led the country’s national security leadership to tarnish once more the constitution’s promise of equal protection. this pattern continued to manifest itself in the ensuing decades. 3. cointelpro one of the most notorious twentieth century examples of a national security institution using its power against the african american community was the targeting of civil rights leadership by the fbi during the civil rights era. this 165 id. at 237, 239–40 (murphy, j., dissenting) (footnotes omitted). 166 id. at 241. no. 1:191] russian election interference 225 activity fell under the rubric of cointelpro (shorthand for “counter intelligence program”), which was under the direction of fbi director j. edgar hoover.167 in justifying his targeting of these leaders, j. edgar hoover famously described the goal of the program as “prevent[ing] the rise of a [black] ‘messiah’ . . . .”168 fear of a black “messiah” indicates a distorted view and fear of race held by the most senior leadership of the national security community. african americans, many of whom had just returned to america from fighting against nazism and racial oppression abroad during world war ii, were continuing their advocacy for civil rights and equal protection at home under the leadership of the national association for the advancement of colored people (naacp), the southern christian leadership conference (sclc), the student nonviolent coordinating committee (sncc), and the congress of racial equality (core). clergy, student activists, and labor leaders led these racial justice organizations.169 these civil rights organizations wished to make the promise of the post-civil war amendments a reality for the african american community. however, many civil rights leaders were treated as a national security threat to the country.170 the fbi disrupted civil rights organizations and aimed to discredit leaders such 167 natsu taylor saito, whose liberty? whose security? the usa patriot act in the context of cointelpro and the unlawful repression of political dissent, 81 or. l. rev. 1051, 1062, 1094 (2002). cointelpro originally began in the early twentieth century as an anti-communist program. over the years, the program evolved and applied its tactics to black, latinx, native american, and anti-vietnam war organizers in civil rights and liberation organizations. id. at 1088, 1090, 1098. 168 id. at 1094 (emphasis omitted). 169 aldon d. morris, a retrospective on the civil rights movement: political and intellectual landmarks, 25 ann. rev. soc. 517, 525 (1999). 170 the cointelpro program targeted black civil rights organizations and leaders, many of whom were swept up in a broader categorization as being black militant groups or capable of militancy. jonathan david farley, preventing the rise of a “messiah,” guardian (apr. 4, 2008), https://www.theguardian.com/commentisfree/2008/apr/04/preventingthe riseofamessi [https://perma.cc/p2sx-rajn] (“hoover issued another directive: ‘prevent the rise of a “messiah” who could unify and electrify the militant black nationalist movement. malcolm x might have been such a “messiah” . . . . martin luther king, stokely carmichael, and [nation of islam leader] elijah muhammed [sic] all aspire to this position . . . . king could be a very real contender for this position should he abandon his supposed “obedience” to “white, liberal doctrines” (nonviolence).’”). 226 columbia journal of race and law [vol. 9:2 as martin luther king jr., the exemplar of nonviolent protest.171 fbi records reveal that the fbi sent an anonymous letter to king alleging knowledge of his extramarital affairs and encouraging him to commit suicide.172 with attorney general robert kennedy’s approval, the fbi wiretapped king for several years.173 this action was initially prompted by the theory that one of king’s advisers was a prominent member of the communist party of the united states and later continued as part of a broader campaign led by j. edgar hoover to discredit king.174 the cointelpro program was extensive175 and sought to make certain civil rights organizations ineffective through “disruption” tactics, which included fbi agents infiltrating domestic organizations, creating misinformation schemes within those organizations, and disturbing their activities.176 the fbi even worked with local law enforcement to disrupt organizations and to target individuals that they saw as potentially influential.177 in one tragic instance, fred hampton, a young black leader from chicago, was killed by local police in chicago as the result of a cointelpro plot that involved local law enforcement.178 the civil rights movement challenged a racially discriminatory status quo in america— this meant that for j. edgar hoover’s fbi, protecting the national security of the united states was synonymous with maintenance of a legal-political system that protected white supremacy. this again demonstrates that national security 171 id. 172 beverly gage, what an uncensored letter to m.l.k. reveals, n.y. times mag. (nov. 11, 2014), https://www.nytimes.com/2014/11/16/ magazine/what-an-uncensored-letter-to-mlk-reveals.html [https://perma.cc/ 8zx6-3zwn]. 173 id. 174 id. 175 s. rep. no. 94-755, at 22 (1976). 176 saito, supra note 167, at 1080. 177 s. rep. no. 94-755, at 20–23. 178 ted gregory, the black panther raid and the death of fred hampton, chi. trib. (dec. 19, 2007), http://www.chicagotribune.com/news/ nationworld/politics/chi-chicagodays-pantherraid-story-story.html [https:// perma.cc/egc9-9vvg]. even if one were to argue that the fbi was only surveilling groups that espoused violence, the fbi’s record of infiltration of civil rights organizations and leaders drew no such distinctions and included groups and leaders that advocated nonviolent protest, such as martin luther king, jr. see s. rep. no. 94-755, at 172–83. no. 1:191] russian election interference 227 officials viewed the african american community through the race as threat lens. in 1975, the senate created the select committee to study governmental operations with respect to intelligence activities (also known as the “church committee” after its chair, senator frank church of idaho) to investigate “the extent, if any, to which illegal, improper, or unethical activities were engaged in” by the intelligence agencies, including the fbi and cia’s infiltration of domestic organizations.179 the church committee found that procedures for executive branch review of intelligence agency activities were inadequate and had been circumvented, allowing intelligence agencies to engage in abuses domestically and abroad.180 it revealed that with respect to domestic organizations involved in the civil rights and anti-vietnam war protests: fbi headquarters alone ha[d] developed over 500,000 domestic intelligence files, and these have been augmented by additional files at fbi field offices. the fbi opened 65,000 of these domestic intelligence files in 1972 alone. in fact, substantially more individuals and groups are subject to intelligence scrutiny than the number of files would appear to indicate, since typically, each domestic intelligence file contains information on more than one individual or group . . . .181 the report found that “certain domestic intelligence activities were clearly wrong . . . . [w]e would ban tactics such as those used in the fbi’s cointelpro.”182 as a result of its findings, the church committee made several recommendations to prevent intelligence agency abuse of americans’ constitutional rights.183 it suggested legislation that would require all covert actions by intelligence and investigative agencies to be approved 179 s. res. 21, 94th cong. (1975). 180 s. rep. no. 94-755, at 159. the house created a similar commission—the house select committee on intelligence (also known as the pike committee)—that came to similar conclusions. h.r. rep. no. 94833 (1976). 181 s. rep. no. 94-755, at 6–7 (footnotes omitted). 182 id. at 292–93. 183 id. at 296–341. 228 columbia journal of race and law [vol. 9:2 by a committee consisting of the secretaries of state and defense, the national security adviser, the cia director, the attorney general, and the chairman of the joint chiefs of staff.184 the committee also drafted legislation intended to prevent abuses in the domestic collection of intelligence that “threaten the very values that form the foundation of our society.”185 the report pointedly called for: prohibiting bureau interference in lawful speech, publication, assembly, organization, or association of americans[.] [t]he committee intends to prohibit a bureau agent from mailing fake letters to factionalize a group as well as to prohibit an informant from manipulating or influencing the peaceful activities of a group on behalf of the fbi. subsequent recommendations limit the kinds of investigations which can be opened and provide controls for those investigations. specifically, the committee limits fbi authority to collect information on americans to enumerated circumstances; limits authority to maintain information on political beliefs, political associations, or private lives of americans; requires judicial warrants for the most intrusive covert collection techniques (electronic surveillance, mail opening, and surreptitious entry); and proposes new restrictions upon the use of other covert techniques, particularly informants.186 to preempt the passage of legislation, president ford passed executive order 11,905, which encompassed the recommendations made in the church committee report, including the formation of an operations advisory group similar to the covert activity oversight committee called for by the committee.187 the executive order also restricted agencies, other than the fbi, from engaging in domestic surveillance and restricted the fbi’s domestic activities relative to american persons in the manner called for by the church committee.188 184 id. at 159–61. 185 id. at vii. 186 id. at 317. 187 exec. order no. 11,905, 41 fed. reg. 7703 (feb. 18, 1976). 188 id. no. 1:191] russian election interference 229 it further prohibited intelligence agencies from engaging in human experimentation or assassinations (both abuses committed by the cia).189 the intelligence oversight framework adopted by president ford essentially remains intact—president carter added congressional oversight responsibilities in executive order 12,036, and president reagan provided additional structure to intelligence collection and oversight in executive order 12,333, an amended version of which remains in effect today.190 due to litigation challenging the fbi’s use of wiretapping during cointelpro investigations, the united states supreme court ruled that federal investigative agency wiretapping was subject to the fourth amendment and required prior judicial approval.191 in 1976, several washington, d.c. area residents who had been involved in civil rights and anti-vietnam war organizations and were targeted by cointelpro sued fbi and d.c. officials for violations of their constitutional rights related to the cointelpro program.192 the plaintiffs won most of their claims.193 in its appellate opinion, the d.c. circuit court of appeals noted that “[g]overnment action, taken with the intent to disrupt or destroy lawful organizations, or to deter membership in those groups, is absolutely unconstitutional.”194 with new limitations placed on their conduct by the courts, an executive order, and greater congressional oversight, national security institutions had the opportunity to shift away 189 id. 190 see exec. order no. 12,036, 43 fed. reg. 3674 (jan. 24, 1978); exec. order no. 12,333, 46 fed. reg. 59,941 (dec. 8, 1981). for executive orders amending executive order 12,333, see also exec. order no. 13,284, 68 fed. reg. 4075 (jan. 23, 2003); exec. order no. 13,355, 69 fed reg. 53,593 (aug. 27, 2004); and exec. order no. 13,470, 73 fed. reg. 45,325 (july 30, 2008). 191 united states v. u.s. dist. court (keith), 407 u.s. 297, 321 (1972). congress also took action in 1978 when it passed the foreign intelligence surveillance act (fisa), which created a fisa court to legally authorize foreign intelligence surveillance and provided standards for the approval of such surveillance within the united states. foreign intelligence surveillance act of 1978, pub. l. no. 95-511, 92 stat. 1783 (codified as amended at 50 u.s.c. §§ 1801–1885c (2012)). 192 hobson v. wilson, 737 f.2d 1, 10–11, 13 (d.c. cir. 1984). 193 id. 194 id. at 29. 230 columbia journal of race and law [vol. 9:2 from a minority race as threat approach.195 after an existential threat to the nation occurred on september 11, 2001, however, the national security response reverted to a minority race as threat framework directed at those perceived to be muslim. b. race as threat profiling after 9/11 the same vulnerability experienced by americans following the japanese attack on pearl harbor in 1942 revisited the nation following the terrorist attacks of september 11, 2001. the country was fearful and knew little about the enemy that had attacked it. although president george w. bush publicly stated that islam was a religion of peace and that the country was not at war with islam,196 national and local authorities treated members of muslim communities in the united states with suspicion.197 legal scholars such as khaled beydoun, sahar aziz, and amna akbar have detailed how islamophobia manifested itself in national security policies following 9/11 that disproportionately targeted muslim american communities.198 195 though it is impossible to argue that institutional discrimination by the fbi ended with cointelpro, the church committee findings and recommendations did provide for greater oversight and critique of agency excesses and constitutional violations. 196anthony zurcher, what trump team has said about islam, bbc (feb. 7, 2017), https://www.bbc.com/news/world-us-canada-38886496 [https://perma.cc/5zvj-766t]. 197 see volpp, supra note 8, at 1578 (“[w]e know that the vast majority of those detained appear to be middle eastern, muslim, or south asian. we know, too, that the majority were identified to the government through suspicions and tips based solely upon perceptions of their racial, religious, or ethnic identity.” (footnote omitted)); see also muneer i. ahmad, a rage shared by law: post-september 11 racial violence as crimes of passion, 92 calif. l. rev. 1259, 1278 (2004) (discussing the “logic” of postseptember 11 governmental profiling, which concluded that all arabs and all muslims are likely to be terrorists). 198 see khaled a. beydoun, american islamophobia: understanding the roots and rise of fear (2018) [hereinafter beydoun, american islamophobia]; amna akbar, national security's broken windows, 62 ucla l. rev. 834 (2015) [hereinafter akbar, national security’s broken windows]; amna akbar, policing “radicalization,” 3 u.c. irvine l. rev. 809 (2013) [hereinafter akbar, policing “radicalization”]; sahar f. aziz, losing the “war of ideas:” a critique of countering violent extremism programs, 52 tex. int’l l.j. 255 (2017) [hereinafter aziz, losing the war of ideas]; sahar f. aziz, caught in a preventive dragnet: selective counterterrorism in a post-9/11 america, 47 gonz. l. rev. 429 (2011) [hereinafter aziz, caught in a preventive dragnet]; khaled a. beydoun, no. 1:191] russian election interference 231 akbar argues that the fbi’s post-9/11 muslim american community engagement programs were essentially counterradicalization or countering violent extremism (cve) initiatives based on the presumption that particular political and religious views of the muslim american community corresponded with a propensity for terrorist activity, despite a lack of sound methodological support for that conclusion.199 akbar notes that the widespread use of cve programs in muslim american communities is not justified, because research indicates that there is no single profile of a terrorist, no markers for how someone becomes a terrorist, and no data to show that the muslim community in general is becoming more radicalized or more violent.200 these “community engagement” programs become surveillance initiatives in which views shared by muslim american participants in “engagement” meetings unwittingly become part of national security files maintained about muslim american community members.201 other community members are utilized as informants, reporting on the political and religious views of others within muslim american mosques and organizations—techniques reminiscent of cointelpro.202 furthermore, the fbi programs place a penalty on group members’ religious expression and belief. beydoun notes that the impact of these cve practices falls most directly on the most religiously observant, as cve programs link propensity for radicalization with religious piety.203 in addition, the monitoring of muslim americans’ religious observance, political views, speech, and associations through informants and review of online expression negatively impacts their first amendment and fourth amendment rights.204 sahar aziz observes that the american government’s primary focus on counterterrorism acting muslim, 53 harv. c.r.-c.l. l. rev. 1 (2018) [hereinafter beydoun, acting muslim]; khaled a. beydoun, between indigence, islamophobia, and erasure: poor and muslim in “war on terror” america, 104 calif. l. rev. 1463 (2016) [hereinafter beydoun, between indigence, islamophobia, and erasure]. 199 akbar, national security’s broken windows, supra note 198, at 848–50. 200 id. at 878–79. 201 id. at 852–54. 202 id. 203 beydoun, between indigence, islamophobia, and erasure, supra note 198, at 1487–90. 204 id. at 1488. 232 columbia journal of race and law [vol. 9:2 initiatives targeting the muslim american community has had the effect of creating a racialized subtext of muslims as terror suspects that has manifested itself in the “suspicion[] of mosques as bastions of extremists, muslim charities as supporters of terrorism, and imams as unpatriotic for refusing to spy on their congregations.”205 the supreme court case, ashcroft v. iqbal, details the bush administration’s use of national security justifications for the targeting of muslim communities immediately following 9/11.206 two months after 9/11, javaid iqbal, a muslim pakistani national who was an undocumented immigrant in the united states, was questioned and then detained by fbi and immigration and naturalization service (ins) officials on suspicion that he had been involved in the 9/11 bombings in new york.207 iqbal was arrested and detained in the administrative special housing unit of the metropolitan detention center, a special unit for post-9/11 detainees.208 this unit housed approximately eighty-four detainees arrested in relation to 9/11 investigations.209 according to iqbal, he was repeatedly beaten during his detention, was subjected to frequent strip and body cavity searches, and was confined in a cell with bright lights all night causing sleep deprivation, depression, and anxiety.210 after an investigation, the department of justice inspector general concluded that these abuses had occurred and disciplined several officers, though none were charged with crimes.211 iqbal sued then attorney general ashcroft and then fbi director mueller for violating his first and fifth amendment rights through the creation and execution of a program that targeted thousands of muslim men for arrest and detention under harsh conditions because of their race, religion, and national origin.212 writing for the majority, justice kennedy reasoned that iqbal’s complaint did not plead sufficient facts 205 aziz, caught in a preventive dragnet, supra note 198, at 477. 206 ashcroft v. iqbal, 556 u.s. 662, 667–69 (2009). 207 id. 208 id. 209 shirin sinnar, the lost story of iqbal, 105 geo. l.j. 379, 399 (2017). 210 id. at 401–02. 211 id. at 402. 212 iqbal, 556 u.s. at 669. no. 1:191] russian election interference 233 to indicate purposeful or unlawful discrimination on the part of the federal government.213 in the majority’s view, a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on arab muslims, even though the purpose of the policy was to target neither arabs nor muslims. on the facts respondent alleges the arrests mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the united states and who had potential connections to those who committed terrorist acts. as between that “obvious alternative explanation” for the arrests and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion.214 the court dismissed the charges on procedural grounds, finding that iqbal had failed to meet the court’s recently-adopted heightened pleading standard.215 although the court found that iqbal had not plead sufficient facts to support his legal claim of discrimination, an analysis of the iqbal case and post-9/11 arrest patterns by professor shirin sinnar reveals that arrest patterns during that period reflected discriminatory targeting on the basis of race, color, national origin, or religion.216 as sinnar observes, the court conflated the “arab” and “muslim” identities into the racial-religious category of “arab muslim,” which related the detainees to the airplane hijackers.217 in the court’s view, arrests among this group were an incidental and justified 213 id. at 682. 214 id. (citation omitted). 215 id. at 680 (noting that, under bell atl. corp. v. twombly, 550 u.s. 544, 570 (2007), complaints must allege sufficient facts that move legal claims “across the line from conceivable to plausible”). 216 sinnar, supra note 209, at 416–21. 217 id. at 416–18; see also khaled a. beydoun, between muslim and white: the legal construction of arab american identity, 69 n.y.u. ann. surv. am. l. 29, 30 (2013) (discussing the legal roots of this conflation). 234 columbia journal of race and law [vol. 9:2 result of the investigation rather than the result of invidious discrimination.218 however, as sinnar notes, there are problems with the broad descriptor “arab muslim”—one is a religion and the other is an ethnic and linguistic identity. the majority of arab americans in the united states are not muslim (three-fourths are christian), and arabs constitute only fifteen to eighteen percent of the muslim population worldwide.219 among the 762 immigrants detained in the united states following 9/11, 254 were from pakistan, 111 were from egypt, and the remaining top ten nationalities were turkish, jordanian, yemeni, indian, saudi arabian, moroccan, tunisian, and syrian.220 these statistics were available to the court in the doj inspector general report that it cited.221 the demographic statistics reveal that the arrested detainees were not all arab; in fact, the largest country represented, pakistan, is south asian, and two of the other top ten nationalities detained— turkish and indian—are also not “arab.” nor is india a majority-muslim country.222 instead of race or color being incidental to the arrests as posited by the court, a perception that individuals were muslim, arab, or middle eastern was a central factor in post-9/11 arrests by government agencies.223 muneer ahmad describes this post-9/11 terrorist suspect category as encompassing “not only arab muslims, but arab christians, muslim non-arabs (such as pakistanis or indonesians), non-muslim south asians (sikhs, hindus), and even latin[x] and african americans, depending on how closely they approach[ed] the phenotypic stereotype of the terrorist.”224 for this reason, many pakistanis such as iqbal, who did not share the same nationality nor an arab linguistic or cultural identity with the 9/11 hijackers, became targets of the post-9/11 investigation.225 it was their appearance and relative visibility, rather than a factual linkage to terrorists, that made them suspects. as sinnar accurately observes, 218 iqbal, 556 u.s. at 680–81. 219 sinnar, supra note 209, at 417–18. 220 id. at 417. 221 id. at 415–16. 222 id. at 417. 223 volpp, supra note 8, at 1576–78, 1584, 1590. 224 ahmad, supra note 197, at 1278–79. 225 id. no. 1:191] russian election interference 235 even if the court had meant that those arrested were either arab or muslim—rather than both—such a view would undermine the court’s basic contention that any disparate impact in the racial and religious composition of those arrested was due to their “potential connection” (in justice kennedy’s words) to the terrorist hijackers.226 under that rationale, the more attenuated the potential connections— which in iqbal’s case meant no arabic or nationality-based connections to the terrorist hijackers—the less likely that race or religion were merely incidental to the arrests. subsequent review of post-9/11 arrests reveals that race and religious-based assumptions were central, instead of incidental, to many of the arrests. although some of those initially arrested did have a link to the hijackers (such as being roommates and attending flight school together), many more were arrested because they appeared to be muslim and had an immigration or criminal record.227 the doj inspector general report reveals that many agents followed up on calls from the general public expressing suspicion solely on the basis of someone’s identity and generally acceptable conduct, including several middle eastern men arrested after law enforcement found pictures of famous buildings like the world trade center in their car during traffic stops and an immigrant arrested after someone reported that more middle eastern men than necessary were running a grocery store.228 a human rights watch report further reveals that two somali men were deemed suspicious because they kneeled to pray in a parking lot, an egyptian man was detained by a newark officer for asking for directions, and an iranian citizen was apparently asked for his immigration documentation during a traffic stop because an officer noticed his “muslimsounding” name.229 an author who spoke with forty ex-detainees observed that “[o]ne story after another reveal[ed] that racial profiling triggered suspicion against individuals and that spe 226 ashcroft v. iqbal, 556 u.s. 662, 682 (2009); sinnar, supra note 209, at 390, 419. 227 sinnar, supra note 209, at 420. 228 office of the inspector gen., u.s. dep’t of justice, the september 11 detainees: a review of the treatment of aliens held on immigration charges in connection with the investigation of the september 11 attacks 16–17 (2003). 229 see human rights watch, presumption of guilt: human rights abuses of post-september 11 detainees 12–15 (2002). 236 columbia journal of race and law [vol. 9:2 cific questions about their religion led to their arrests.”230 the post-9/11 treatment of americans perceived to be muslim or arab was another permutation of the historic treatment of minority race as threat. racial grievance and division caused by such practices, and the attitudes undergirding them, facilitated the insertion of russia’s racial exploitation campaign. v. current legal frameworks do not fully address russia’s cyber campaign russia’s exploitation of the racial division fostered by racially-biased state practices led to a foreign influence campaign that violated american law. an examination of the legal prohibitions against such foreign interference is instructive to understanding both the options and challenges involved in an american response. this part discusses the domestic and international legal prohibitions against foreign election intervention on social media. a. united states legal prohibitions against foreign election interference although the constitution’s drafters expressed significant concern about foreign influence in domestic elections, no explicit prohibition addressing such foreign influence appears in the constitution.231 in 1972, congress expressly prohibited political campaign contributions from all foreign sources due to the revelation that the nixon campaign had fundraised directly from foreign sources.232 federal law now prohibits any political contributions from foreign sources for federal, state, or local elections and also makes it a felony for a person in the united states to solicit or accept such contributions, punishable by five years in prison for violations aggregating over $25,000.233 230 see irum shiekh, detained without cause: muslims’ stories of detention and deportation in america after 9/11, at 19–21 (2011). 231 see zephyr teachout, extraterritorial electioneering and the globalization of american elections, 27 berkeley j. int’l l. 162, 168–69 (2009) (“the constitutions’ founders were intensely concerned about the prospect of foreign involvement in american politics.”). 232 margaret k. lewis, when foreign is criminal, 55 va. j. int’l l. 625, 663 (2015). 233 id.; see also 2 u.s.c. §§ 441e, 437g(d)(1)(a)(i) (2012). no. 1:191] russian election interference 237 although the supreme court’s 2010 citizens united decision invalidated a federal restriction on campaign expenditures by domestic corporations as a violation of the first amendment, the court made clear in its opinion that the legal ban on foreign campaign expenditures remained intact.234 if challenged, legal scholars tend to agree that the court would maintain the ban against foreign expenditures in american political campaigns in order to protect the integrity of the electoral process.235 further, while the constitution does not specifically prohibit foreign influence over elections, the emoluments clause expressly prohibits foreign influence over american government officials.236 the court could find that the constitutional prohibition on foreign influence over elected officials bolsters the constitutionality of the legislative prohibition on foreign influence over the same officials’ campaigns. special counsel mueller’s february 2018 indictment charges russian institutions and nationals with violating the federal law prohibiting foreign financing of elections.237 the indictment charges the russian entities and agents with violating the federal election campaign act (feca) prohibitions on foreign entities making contributions, expenditures, or disbursements for electioneering purposes.238 the indictment also charges them with violating the foreign agent registration act’s requirement that any agent of a foreign government 234 citizens united v. fec, 558 u.s. 310, 362 (2010) (noting that the court was not addressing § 441e of the law, which specifically referenced political contribution and expenditure bans related to “foreign nationals,” but was rather addressing 2 u.s.c. § 441b, which covered all corporate expenditures); see also id. at 422–23 (stevens, j., concurring) (“although we have not reviewed them directly, [the supreme court] ha[s] never cast doubt on laws that place special restrictions on campaign spending by foreign nationals.”). 235 see, e.g., tim bakken, constitutional rights and political power of corporations after citizens united: the decline of citizens and the rise of foreign corporations and super pacs, 12 cardozo pub. l. pol’y & ethics j. 119, 141–46 (2013) (examining whether foreign corporations have first amendment rights); toni m. massaro, foreign nationals, electoral spending, and the first amendment, 34 harv. j.l. & pub. pol’y 663, 703 (2011) (“the court nevertheless is likely to uphold the restrictions to prevent undue foreign influence over elections.”). 236 u.s. const. art. i, § 9, cl. 8 (prohibiting members of the federal government from receiving “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state”). 237 indictment, supra note 12. 238 id. ¶ 25. 238 columbia journal of race and law [vol. 9:2 operating in the united states and attempting to influence public opinion, policy, or law must register with the department of justice and disclose the scope of the activities.239 finally, the indictment charges that the russian defendants defrauded the united states and committed bank and wire fraud in furtherance of their conspiracy to impair, obstruct, and defeat the lawful government functions of the united states by dishonest means and to interfere with american political and electoral processes.240 though the indictment illuminated the scope of russian intervention in the elections, bringing the russian entities and nationals to justice will be difficult. the russian government is unlikely to cooperate in transferring the individuals to the united states to face justice and will likely claim sovereign immunity for any actions of russian government agencies, if it responds at all. b. international law prohibitions against foreign intervention international law also addresses foreign intervention in domestic electoral processes. international law arising both from treaties and from customary state practice is instructive. the supreme court has determined that in order for treatybased rights to be enforceable as private rights of action in american courts, the treaties must be self-executing241 or the treaty rights must be codified in domestic legislation.242 there are several treaties to which the united states is a party that touch on the question of foreign interference in domestic 239 id. ¶ 26. 240 id. ¶¶ 2–10, 28, 97. 241 a self-executing treaty creates private enforcement rights when its terms are so clear as to not require independent action by congress or the executive to enforce said rights. for factors relevant to determining that a treaty is self-executing, see michael a. mckenzie, treaty enforcement in u.s. courts—united states v. noriega, 808 f. supp. 791 (s.d. fla. 1992), 34 harv. int’l l.j. 596, 603 (1993). 242 see medellín v. texas, 552 u.s. 491 (2008) (determining that although mexican nationals convicted of crimes in texas courts were denied consular visits as required by the terms of the vienna convention on consular relations (vccr), the terms of the treaty were not enforceable as domestic law in the united states because the vccr was not “selfexecuting” and congress had not passed separate legislation to give it effect). no. 1:191] russian election interference 239 elections. first, the united nations (u.n.) charter, a multilateral treaty that entered into force in 1945, prohibits u.n. member states from the “threat or use of force against the territorial integrity or political independence of any state”243 but permits responsive action in self-defense.244 the russian social media campaign, while intrusive, does not necessarily rise to the level of a threat or use of force, as no physical armed attack was used or threatened against the united states. although cyberattacks that cause significant physical damage can constitute armed attacks under international law, russian interference in this instance did not involve direct physical violence or harm to individuals.245 foreign espionage has not been expressly addressed under international law. scholars have argued that espionage has historically been a violation of domestic, but not international, law.246 intelligence collection involves the compilation of sensitive information regarding foreign government policies and positions through espionage, signal intelligence from infiltrated radio and phone traffic, satellite intelligence, media, and other methods.247 the information is then used to inform the collecting government’s decision-making.248 in addition to intelligence collection, intelligence activity can also include covert operations—secret operations that intelligence organizations undertake in foreign states.249 the international court of justice (icj) has determined that 243 u.n. charter art. 2, ¶ 4. (prohibiting united nations member states from “the threat or use of force against the territorial integrity or political independence” of other member states). 244 u.n. charter art. 51 (allowing united nations member states to act in self-defense when an armed attack has occurred). 245 as discussed later in this subsection, the united states department of defense law of war manual treats cyberattacks that cause physical damage or violence as “armed attacks” under international law, warranting a proportionate response. see also infra note 258 and accompanying text. the russian cyber campaign did not involve direct violence by the ira, although it did encourage radical groups to host rallies that became violent. 246 see, e.g., jens david ohlin, did russian cyber interference in the 2016 election violate international law?, 95 tex. l. rev. 1579, 1580 (2017). 247 geoffrey b. demarest, espionage in international law, 24 denv. j. int’l l. & pol’y 321, 324 (1996). 248 id. at 322. 249 id. at 330. 240 columbia journal of race and law [vol. 9:2 covert action, such as proxy wars, involving armed activity and intervention in another state is violative of international law if not carried out in accordance with u.n. charter procedures.250 as an example, in nicaragua v. united states, the icj determined that the united states had impermissibly intervened in the nicaraguan civil war in violation of customary international law.251 it said the united states did so by providing weapons and various forms of military support to an armed insurgency through the cia without having an independent self-defense rationale for the intervention (as nicaragua had not militarily attacked the united states).252 there has been increasing consensus in the academic community that cyber warfare and cyberattacks are subject to the international law of armed conflict. for example, in 2007, estonia, a former soviet state, was the victim of a three-weeklong cyberattack.253 its institutions’ webpages—including the websites of the president, parliament, political parties, banks, and news agencies—were subject to denial of service attacks, defacement, and destruction.254 most of the attacks originated from ip addresses in russia and were organized in a manner that suggested command and control.255 immediately before the attack, the russian government expressed opposition to the estonian government’s removal of a soviet-era world war ii memorial.256 the attack disrupted communications, undermined the economy, and halted a number of estonian government activities.257 the cyberattack on estonia led the north atlantic treaty organization (nato) in 2008 to accredit the nato cooperative cyber defense center in tallinn, estonia as a center of excellence with the mandate to invite an international group of experts to produce the tallinn manual on the 250 military and paramilitary activities in and against nicaragua (nicar. v. u.s.), judgment, 1986 i.c.j. 14 (june 27). 251 id. ¶ 82. 252 id. ¶ 92. 253 scott j. shackelford, from nuclear war to net war: analogizing cyber attacks in international law, 27 berkeley j. int’l l. 192, 203 (2009). 254 id. at 203 n.57, 206. 255 id. at 203 n.57. 256 id. 257 id. at 246. no. 1:191] russian election interference 241 international law governing cyber warfare.258 similarly, the obama administration adopted a cyberspace strategy in 2011, which stated that “[l]ong-standing international norms guiding state behavior . . . also apply in cyberspace.”259 that guidance is reflected in the department of defense law of war manual (“dod law of war manual”), which states that if a cyberattack creates the “kind of physical damage that would be caused by dropping a bomb or firing a missile, that cyberattack would equally be subject to the same rules that apply to attacks using bombs or missiles.”260 cyberattacks may constitute “uses of force within the meaning of . . . the charter of the united nations,” giving “rise to a right to take necessary and proportionate action in self-defense.”261 it remains an open question whether russian cyber interference in american elections constitutes the same destabilizing infrastructural attack that would violate the laws of armed conflict. russian interference did not involve armed attacks or the destruction of infrastructure, even as it sought to disrupt the american political process through social media and disinformation campaigns. the dod law of war manual leaves open the possibility that cyber intelligence activities would not be treated as a use of force “to the extent that cyber operations resemble traditional intelligence and counter-intelligence activities, such as unauthorized intrusions into computer networks solely to acquire information . . . .”262 as russian election interference goes beyond information collection but does not rise to the level of a physical attack, it pushes the boundaries of international law.263 258 see tallinn manual on the international law applicable to cyber warfare 6 (michael n. schmitt ed., 2013). 259 white house, international strategy for cyberspace: prosperity, security, and openness in a networked world 9 (2011). 260 office of gen. counsel, u.s. dep’t of def., department of defense law of war manual 997 (2015) [hereinafter dod law of war manual]. 261 id. at 998, 1000. 262 id. at 999. 263 see ashley deeks, an international legal framework for surveillance, 55 va. j. int’l l. 291 (2015) (arguing for the development of international law to govern cyber surveillance); craig forcese, spies without borders: international law and intelligence collection, 5 j. nat’l security l. & pol’y 179 (2011) (arguing that cyber espionage has been conducted largely by countries free from legal controls). 242 columbia journal of race and law [vol. 9:2 because russian online interference raises questions regarding the nationality of the user, the extent of first amendment protection is unclear. further, indictments against foreign agents in russia are unlikely to lead to prosecutions absent russian cooperation.264 given the challenges that russian cyber interference presents to historic legal frameworks and their enforcement, new approaches must be pursued to confront this threat. a reframing of the manner in which our national security institutions address questions of race is a first and crucial step toward alleviating the racial division that the russian state has so effectively exploited. the next section presents a recommendation for how national security institutions might begin to reframe their treatment of race in the united states to confront russian interference. c. international law prohibitions against the incitement of racial hatred international human rights law prohibits the advocacy of racial hatred that constitutes incitement to discrimination, hostility, or violence. specifically, article 20 of the international covenant on civil and political rights (iccpr), a multilateral human rights treaty to which the united states is a party, states that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”265 russia’s cyber disinformation campaign incites racial hostility, and even violence, in cases where it has promoted gatherings and sought to inflame 264 see jennie neufeld, read the full transcript of the helsinki press conference, vox (july 17, 2018), https://www.vox.com/2018/7/16/ 17576956/transcript-putin-trump-russia-helsinki-press-conference [https:// perma.cc/x5w5-4mv4]. despite president putin’s offer at the helsinki summit to cooperate with the mueller investigation, none of the russians indicted have been transferred to the united states. putin’s offer was likely rhetorical, as he conditioned it on the transfer of american political appointees to russia for “political” prosecutions. id. 265 international covenant on civil and political rights art. 20, adopted dec. 16, 1966, 999 u.n.t.s. 171 (entered into force mar. 23, 1976) [hereinafter iccpr]. the european union has required all of its twentyseven members to criminalize the incitement of racial violence. see europe outlaws race hate incitement, s. poverty l. ctr. (oct. 1, 2007), https://www.splcenter.org/fighting-hate/intelligence-report/2007/europeoutlaws-race-hate-incitement [https://perma.cc/7mjs-nm3v]. no. 1:191] russian election interference 243 participants through extremist rhetoric.266 however, the united states has not expressly prohibited through legislation the advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. in ratifying the iccpr, the united states adopted a reservation that states that article 20 does not “restrict the right of free speech and association protected by the constitution and laws of the united states.”267 while first amendment concerns prevent the united states from passing a federal law criminalizing or prohibiting the advocacy of hatred that incites hostility, discrimination, or violence, the supreme court has determined that words inciting violence (or “fighting words”) are beyond first amendment protection.268 though the iccpr’s prohibition against the advocacy and incitement of racial hostility and violence has not been implemented through a federal law that would punish or prevent the ira’s socially divisive posts, social media companies have instituted user policies that prohibit the advocacy and incitement of racial hostility and violence on their platforms.269 these user policies align with the language of article 20 of the iccpr and are a useful tool to limit the impact of russia’s cyber disinformation campaign. similarly, incorporating prohibitions against the incitement of racial hatred and violence by state agents into the united states’ formal national security strategy, as this article recommends, is in keeping with the iccpr and does not unduly infringe upon the first amendment rights of american citizens.270 266 see discussion supra part ii. 267 138 cong. rec. s4781-01 (daily ed. apr. 2, 1992); see also harold hongju koh, on american exceptionalism, 55 stan. l. rev. 1479, 1497 (2003). 268 chaplinsky v. new hampshire, 315 u.s. 568, 572 (1942); see also virginia v. black, 538 u.s. 343, 359 (2003). 269 see community standards: violence and criminal behavior, facebook, https://www.facebook.com/communitystandards/violence_criminal_ behavior [https://perma.cc/5l7s-wesw]; the twitter rules, twitter, https://help.twitter.com/en/rules-and-policies/twitter-rules [https://perma.cc/ x2te-954t]; community guidelines, instagram, https://help.instagram. com/477434105621119 [https://perma.cc/ln37-3bbn]. 270 united states government agents and institutions can be expected, by virtue of their employment, to act in accordance with employment arrangements intended to prevent incitement to discrimination, hostility, or violence. brandenburg v. ohio, 395 u.s. 444, 447–48 (1969). 244 columbia journal of race and law [vol. 9:2 vi. toward a new racism as threat national security program in its recent attack against american democratic institutions, russia has exploited the racial tensions and divisions that have arisen out of current manifestations of a minority race as threat national security state. a new approach to national security, as it relates to race, must replace the race as threat paradigm. this new approach must both address ongoing violations of minorities’ rights by national security institutions and eliminate russian and other actors’ ability to weaponize racial divisions against americans through social media. this article suggests a racism as threat national security paradigm as that new approach. a. the post-racial myth following the obama election after president obama’s election, some political and social commentators began to proclaim that we had transitioned into a post-racial america.271 the election of an african american president symbolized america’s movement past its history of racial discrimination and division. while president obama’s election marked a new pinnacle in political achievement for the african american community and reflected racial progress in the united states, his election did not produce, nor reflect, the end of racial discrimination in america. the negative racial tenor of much of the political opposition to president obama during his eight years in office evidenced this reality.272 several events occurred during president obama’s administration that illustrated how endemic the race as threat paradigm is within national security institutions. for example, several states began to push legislative proposals targeted at undocumented workers that had a discriminatory impact upon the latinx community.273 arizona passed a law which made it a 271 peniel joseph, obama’s effort to heal racial divisions and uplift black america, wash. post (apr. 22, 2016), https://www.wash ingtonpost.com/graphics/national/obama-legacy/racism-during-presidency .html [https://perma.cc/ufu4-je4g]. 272 id. 273 ian gordon & tasneem raja, 164 anti-immigration laws passed since 2010? a mojo analysis, mother jones (2012), https://www. no. 1:191] russian election interference 245 state crime to be present in arizona without immigration documents and to seek employment without paperwork, provided local police with the authority to determine the federal immigration status of someone detained or arrested, and authorized warrantless arrests of people believed to be removable from the united states based on probable cause.274 the supreme court invalidated all of the provisions of the law except for the warrantless arrests based on probable cause, because the laws contravened federal supremacy regarding the enforcement of immigration laws.275 other states pushed for identification laws that would harm immigrants’ ability to conduct many day-to-day affairs, such as driving.276 law enforcement officers, like sheriff arpaio in arizona, engaged in discriminatory stops of latinx citizens and noncitizens in the state for the purposes of immigration enforcement.277 several state governments also sued to prevent the president from implementing deferred action for parents of childhood arrivals (dapa), which would have enabled the parents of deferred action for childhood arrival (daca) children to remain in the country, keeping families together.278 while these events could be characterized as race-neutral efforts to enforce the law,279 the punitive response to the president’s motherjones.com/politics/2012/03/anti-immigration-law-database/ [https:// perma.cc/65pw-7jmb]. 274 support our law enforcement and safe neighborhoods act, s. 1070, 49th leg., 2d reg. sess. §§ 2–3, 5–6 (ariz. 2010). 275 see arizona v. united states, 567 u.s. 387, 416 (2012). 276 see david l. ulin, real id will divide us all into documented and undocumented, l.a. times (july 30, 2018), https://www.latimes. com/opinion/op-ed/la-oe-ulin-real-id-20180730-story.html [https://perma.cc/ s96m-ljbw]. 277 dan magos, i was one of joe arpaio’s victims. he doesn’t deserve a pardon, wash. post (aug. 26, 2017), https://www.wash ingtonpost.com/news/posteverything/wp/2017/08/26/i-was-one-of-joe-arpa ios-victims-he-doesnt-deserve-a-pardon [https://perma.cc/s6vq-ugsy]. 278 adam liptak & michael d. shear, supreme court tie blocks obama immigration plan, n.y. times (june 23, 2016), https://www. nytimes.com/2016/06/24/us/supreme-court-immigration-obama-dapa.html [https://perma.cc/bv8c-khlh]. 279 see, e.g., kris w. kobach, why arizona drew a line, n.y. times (apr. 28, 2010), https://www.nytimes.com/2010/04/29/opinion/29kobach.html [https://perma.cc/q6pf-2p74]; hans a. von spakovsky, daca is unconstitutional, as obama admitted, heritage found. (sep. 8, 2017), https://www.heritage.org/immigration/commentary/daca-unconstitutionalobama-admitted [https://perma.cc/86pg-6knb]. 246 columbia journal of race and law [vol. 9:2 efforts to provide a pathway to citizenship to some undocumented workers indicated broader policy concerns about the workers themselves. some have argued that this response reflects concern about demographic changes and the impending “browning” of america.280 during this period, videos of unarmed african americans being killed by local law enforcement officers went viral on social media, raising public consciousness of this discriminatory pattern and spurring the creation of the blm movement.281 although police violence and killings of unarmed black men and women were a longstanding issue, the ability of citizens to record and share videos of the violence on a mass scale created an unprecedented response.282 despite the impact of the videos, holding public officials accountable was difficult, as shown by the recurring failure to prosecute or convict those involved with these deaths.283 minority race as threat became a justification for state-sanctioned killing, as officers like darren wilson, michael brown’s killer, invoked their fear of black bodies to justify their actions.284 280 brian resnick, white fear of demographic change is a powerful psychological force, vox (jan. 28, 2017), https://www.vox.com/science-andhealth/2017/1/26/14340542/white-fear-trump-psychology-minority-majority [https://perma.cc/jq7w-lxau]. 281 see herstory, black lives matter, https://blacklivesmatter. com/about/herstory/ [https://perma.cc/j77b-5mjn]. 282 peter dreier, racism on camera, am. prospect (july 30, 2015), https://prospect.org/article/racism-camera [https://perma.cc/yq2m-gtbk]. 283 courtney teague & amy b. wang, sacramento police officers who fatally shot stephon clark will not be charged, prosecutor says, wash. post (mar. 2, 2019), https://www.google.com/amp/s/www.washington post.com/amphtml/nation/2019/03/02/sacramento-police-officers-who-fatallyshot-stephon-clark-will-not-be-charged-prosecutor-says [https://perma.cc/m5 dx-6kda] (“just under 1,000 people are shot and killed by police officers each year, according to the washington post’s database. a handful of those shootings lead to criminal charges, and convictions are even more rare, which has prompted intense criticism from civil rights activists across the country.”). 284 josh sanburn, all the ways darren wilson described being afraid of michael brown, time (nov. 25, 2014), http://time.com/3605346/ darren-wilson-michael-brown-demon [https://perma.cc/g3ug-3l3v] (referencing racialized tropes of black males in describing brown as a “hulk” and “demon”). no. 1:191] russian election interference 247 b. racial division during the trump administration the tenor of president trump’s campaign and policies pursued by his administration have further institutionalized racially divisive policies in national security institutions. as he promised during his campaign, president trump signed what came to be known as the “muslim ban” executive orders targeting immigrants and refugees from muslim-majority countries.285 the administration has targeted undocumented latinx immigrants in widespread and invasive immigration crackdowns,286 systematically removed children from parents crossing the border,287 and made efforts to remove daca protections granted by the last administration.288 further, the administration has signaled to law enforcement that efforts at reform to address unarmed killings of african americans are no longer a priority.289 in addition, through the posting of many tweets during his campaign and during his administration, president trump has sought to inject raciallydivisive issues into the national dialogue (from targeting nfl players for their protest of police violence, to characterizing immigrants from mexico as rapists and murderers, to labeling middle eastern refugees as terrorists).290 the racially divisive 285 see exec. order no. 13,769, 82 fed. reg. 8977 (jan. 27, 2017); exec. order no. 13,780, 82 fed. reg. 13,209 (mar. 6, 2017); proclamation no. 9645, 82 fed. reg. 45,161 (sept. 24, 2017); paul thornton, the cruelty and bigotry of trump’s immigration policies, l.a. times (aug. 11, 2018), https://www.latimes.com/la-ol-opinion-newsletter-trump-immigration20180811-htmlstory.html [https://perma.cc/c8nv-fa2z]. 286 thornton, supra note 285; see also ben leonard, under trump arrests of undocumented immigrants with no criminal record have tripled, nbc (aug. 13, 2018), https://www.nbcnews.com/politics/immigra tion/under-trump-arrests-undocumented-immigrants-no-criminal-recordhave-tripled-n899406 [https://perma.cc/5v8v-94gz]. 287 thornton, supra note 285. 288 id. 289 see margaret hartmann, sessions moves to roll back obamaera police reforms, n.y. mag. (apr. 4, 2017), http://nymag.com/intelligencer /2017/04/sessions-moves-to-roll-back-obama-era-police-reforms.html [https:// perma.cc/t4e4-uylx]. 290 christal hayes, here are 10 times president trump’s comments have been called racist, usa today (aug. 14, 2018), https://www. usatoday.com/story/news/politics/onpolitics/2018/08/14/times-presidenttrump-comments-called-racist/985438002 [https://perma.cc/969p-7ftx]; see donald trump (@realdonaldtrump), twitter, https://twitter.com/realdon 248 columbia journal of race and law [vol. 9:2 policies and rhetoric from the white house may incur support from president trump’s political base, but they also create an environment of racial division that russia is able to exploit against the interests of the united states. c. toward a racism as threat national security framework the majority of american citizens view president trump’s comments while in office as racially divisive.291 political commentators have surmised that he views such rhetoric as politically beneficial to his base.292 racially divisive political posturing is nothing new in american politics.293 as a coun aldtrump?ref_src=twsrc%5egoogle%7ctwcamp%5eserp%7ctwgr%5eauth or [https://perma.cc/t3p5-4t4t]. 291 jennifer rubin, most americans agree: president trump is divisive, wash. post, (jan. 17, 2018), https://www.google.com/amp/s/www. washingtonpost.com/amphtml/blogs/right-turn/wp/2018/01/17/most-americans -agree-president-trump-is-divisive [https://perma.cc/2pdc-8z92] (discussing a january 2018 quinnipiac poll). the quinnipiac poll found that sixty-four percent of americans felt that trump was doing more to divide than to unite the nation, fifty-nine percent found that he “does not respect people of color as much as he respects white people,” and fifty-eight percent believed that the comments he made about immigrants from certain countries are racist. u.s. voters split on whether trump is stable, quinnipiac university national poll finds; president is dividing the nation, voters say 2-1, quinnipiac univ. (jan. 17, 2018), https://poll.qu.edu/national/release-detail?releaseid= 2513 [https://perma.cc/a27h-uen6]. 292 ashley parker et al., “i’m not going there”: as trump hurls racial invective, most republicans stay silent, wash. post (aug. 18, 2018), https://www.washingtonpost.com/politics/im-not-going-there-as-trumphurls-racial-invective-most-republicans-stay-silent/2018/08/18/aab7fd8aa189-11e8-83d2-70203b8d7b44_story.html [https://perma.cc/97fj-nv35]; robert schlesinger, trump doesn’t care about governing or being reelected. he only cares about being popular with his base, nbc (dec. 26, 2018), https://www.nbcnews.com/think/opinion/trump-doesn-t-care-aboutgoverning-or-being-reelected-he-ncna951956 [https://perma.cc/kys9-cmsu]; chuck todd et al., where some see tragedy in toxic politics, trump sees opportunity, nbc (oct. 29, 2018), https://www.nbcnews.com/politics/firstread/where-some-see-tragedy-toxic-politics-trump-sees-opportunity-n925561 [https://perma.cc/kys9-cmsu]. 293 from the debates about slavery during the drafting of the constitution, to reconstruction-era political battles, to nixon’s southern strategy, racial messaging (often divisive) has held a prominent place in american politics. see, e.g., kevin o’leary, trump and the racial politics of the south, am. prospect (june 27, 2016), https://prospect.org/article/ trump-and-racial-politics-south [https://perma.cc/k7a4-4wvd]; clay risen, no. 1:191] russian election interference 249 terweight against politicians that might exploit race for political gain and foreign governments’ use of american racial division for their own geopolitical ends, the public understanding of racial discrimination must be expanded to make clear that racism is not only morally wrong, but also is a national security vulnerability.294 enshrining this understanding in the public consciousness and in national security strategic planning can serve as a bulwark against racial division sown by politicians who find political advantage in racial demagoguery and foreign states that exploit that division. therefore, this article proposes that social justice and national security legal and policy scholars and advocates use the russian election interference campaign to articulate how racism is a national security threat and vulnerability that has been weaponized against the united states. in identifying racism as a national security threat to the united states, our national security institutions can then strategically plan ways to minimize that threat, as discussed in part vii. d. legal underpinnings of a racism as threat national security framework institutionalizing a racism as national security threat framework in national security planning is consistent with domestic and international law. the post-civil war constitutional amendments and legislation of the civil rights era addressed, respectively, the legacies of slavery and jim crow segregation and sought to bring african americans and other racial minorities closer to the promise of equality.295 these constitutional provisions, legislation, and related anti how the party of lincoln became the party of racial backlash, n.y. times (mar. 31, 2018), https://www.nytimes.com/2018/03/31/opinion/sunday/spiroagnew-mlk.html [https://perma.cc/29b6-q92x]. 294 see, e.g., jason sattler, trump and russia used race to divide america. now it’s a national security problem., usa today (july 19, 2018), https://www.usatoday.com/story/opinion/2018/07/19/putin-trump-race-divide americans-2016-election-interference-column/799765002/ [https://perma.cc/ jsy5-bmek]. 295 u.s. const. amends. xiii–xv; civil rights act of 1964, pub. l. no. 88-352, 78 stat. 241 (codified as amended in scattered sections of 2 u.s.c., 28 u.s.c., and 42 u.s.c.); voting rights act of 1965, pub. l. no. 89110, 79 stat. 437 (codified as amended at 42 u.s.c. §§ 1971, 1973, to 1973bb1(2006)) 52 u.s.c.a. § 10301 (2014); fair housing act of 1968, pub. l. 90– 284, 82 stat. 81 (codified as amended at 42 u.s.c. §§ 3601 to 3619). 250 columbia journal of race and law [vol. 9:2 subordination jurisprudence reflect what is now an accepted american cultural understanding that racial discrimination is not only wrong as a normative matter, but also an ongoing issue that these laws need to address.296 similarly, international human rights law, including treaties to which the united states is a party like the iccpr and the convention on the elimination of racial discrimination, express that states have an obligation to ensure that citizens’ rights are protected equally by the state without regard to race.297 other states have acknowledged the dangers of racist practices and dialogue through their domestic law. many european states, in accordance with the iccpr, criminalize racist speech and incitement to racist violence.298 in the aftermath of nazism, the german government sought to suppress behavior and conduct that furthers oppressive ideology and discrimination.299 history has demonstrated that racial strife can lead to social discord and violence in the united states.300 proactively targeting “racism as the threat” 296 andrew arenge et al., poll: 64 percent of americans say racism remains a major problem, nbc news (may 29, 2018), https://www. nbcnews.com/politics/politics-news/poll-64-percent-americans-say-racismremains-major-problem-n877536 [https://perma.cc/6395-qy67]; joe neel, poll: most americans think their own group faces discrimination, npr (oct. 24, 2017), https://www.npr.org/sections/health-shots/2017/10/24/ 559116373/poll-most-americans-think-their-own-group-faces-discrimination [https://perma.cc/4xw9-2tus]; discrimination in america: experiences and views on affects of discrimination across major population groups in the united states, robert wood johnson found., https://www.rwjf.org/ en/library/research/2017/10/discrimination-in-america--experiences-andviews.html [https://perma.cc/sy37-74b9]. 297 iccpr, supra note 265, art. 2 (“each state party . . . undertakes to respect and to ensure . . . the rights recognized in the present covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”); international convention on the elimination of all forms of racial discrimination art. 2, opened for signature mar. 7, 1966, 660 u.n.t.s. 195 (entered into force jan. 4, 1969) (“each state party undertakes to engage in no act or practice of racial discrimination . . . and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation . . . .”). 298 mila versteeg, what europe can teach america about free speech, atlantic (aug. 19, 2017), https://www.theatlantic.com/politics/ archive/2017/08/what-europe-can-teach-america-about-free-speech/537186/ [https://perma.cc/wac5-5p9j]. 299 id. 300 see discussion supra part iv. no. 1:191] russian election interference 251 and vulnerability, rather than minority communities as the threat, is a measure that would thwart foreign (and internal) efforts to spark conflict. a racism as national security threat framework would further the anti-subordination objectives of american and international antidiscrimination law by creating an additional policy rationale for state actors to proactively eliminate practices at the federal and local level that have discriminatory effects on racial minorities, further internal racial division, and create opportunities for foreign exploitation. framing racism as a national security threat would also enhance the rationale that executive antidiscrimination measures undertaken to confront national security vulnerabilities should receive the significant deference typically given by american courts on matters of national security.301 a thoroughly articulated racism as national security threat framework is also needed to help concretize the reality that racial division was employed by the russian interference campaign against the united states in a broad, strategic manner on social media.302 failure to identify racial division itself as a national security threat will result in responses to russian election interference that focus exclusively on technical mechanisms to limit russian cyber intrusion without addressing the very vulnerability that russians exploited. further concretizing the reality that institutional practices that have a discriminatory effect on racial minorities exacerbates the national security vulnerability of the united states will provide additional justification for the elimination of such practices even when they are deemed permissible by american courts. as seen in the cases of korematsu and iqbal and the recent muslim ban decision,303 the court has often been deferential to the executive branch when a national security rationale is proffered for policies that have a disproportionate racial impact. similar court deference is seen 301 in the case of trump v. hawaii, the supreme court applied the deferential rational basis review standard in assessing the president’s executive order instituting a ban on immigrants from certain majoritymuslim countries—notwithstanding first amendment concerns—because the executive order involved the national security function of the executive, and sufficient national security justifications validated the executive order according to the deferential standard. 138 s. ct. 2392, 2420–2423 (2018) (“[o]ur inquiry into matters of . . . national security is highly constrained.”). 302 see supra part i. 303 hawaii, 138 s. ct. 2392. 252 columbia journal of race and law [vol. 9:2 in the context of local law enforcement practices that have a disproportionate racial impact on minority communities.304 nonetheless, those institutional practices inflame racial divisions, even if a non-race-based national security justification is offered. since litigation and social justice movements alone will not end these practices, additional tools must be used. a racism as national security threat framework encourages policymakers to direct the purveyors of these practices to end them—not only due to their discriminatory impact, but also because of the national security threat that they ultimately pose. enshrining this awareness in national security planning documents will also contribute to the reduction of the vulnerability. vii. operationalizing a racism as threat national security approach the executive branch has an array of tools to respond to new security threats. while legislation is an effective tool for addressing legal matters on a relatively permanent basis, legal and policy priorities can often more efficiently be effectuated through the issuance of executive orders, presidential directives, presidential memoranda, and national security strategies. the issuance of national security planning documents, however, requires that a presidential administration prioritize the retrenchment of racial division and foreign election interference. though dependent on political realities, the suggestions in this article are not tailored to the specific national political leaders of the present moment.305 rather, 304 see utah v. strieff, 136 s. ct. 2056, 2067–68, 2070 (2016) (sotomayor, j., dissenting) (“[m]any innocent people are subjected to the humiliations of these unconstitutional searches. the white defendant in this case shows that anyone's dignity can be violated in this manner. but it is no secret that people of color are disproportionate victims of this type of scrutiny.” (citation omitted)). in this case, the court allowed evidence to be used against a pedestrian who was the subject of an illegal stop by a police officer who had no evidence or reason to believe the pedestrian was engaged in illegal activity. id. at 2064. 305 president trump has failed to take comprehensive and organized action to target russian election interference. see julian e. barnes & nicholas fandos, lawmakers dismiss white house push to fight election interference as too weak, n.y. times (sept. 12, 2018), https://www.nytimes.com/2018 /09/12/us/politics/trump-executive-order-election-interference-senate.html [https://perma.cc/l3ds-qyf3]; ken dilanian, trump admin has no central strategy for election security, and no one’s in charge, nbc news (july 27, no. 1:191] russian election interference 253 this article seeks to outline best practices for how leaders in the executive and legislative branches and in national security institutions, might address the unique threat highlighted by russian interference in united states elections over time. this roadmap will remain available to current and future administrations, legislatures, and national security institutions. this article seeks the implementation of these recommendations over time, aided by expanded public knowledge of the unique nature of russian election interference through racial division on social media. section vii.a highlights legislative and regulatory proposals that focus on the regulation of social media. section vii.b provides recommendations for how executive, legislative, and administrative officials at the federal and state level can reduce state practices that foment racial division and create fertile ground for russian interference. lastly, section vii.c discusses how the racism as threat framework can help support legislative reform in this space. a. regulating social media platforms as discussed in part v, existing international law and united states domestic law frameworks do not fully address the unique threat of russian cyber interference that seeks to exacerbate racial division. the development of a targeted and proportionate response that deters such activity has yet to be identified.306 any counterintelligence responses, due to their 2018), https://www.nbcnews.com/politics/elections/trump-admin-has-nocentral-strategy-election-security-no-one-n895256 [https://perma.cc/sn2lyq34]. congress has similarly failed to advance election security legislation. james lamond, the 2020 election is vulnerable. congress needs to guard against attacks starting now., usa today (nov. 25, 2018), https://www.usa today.com/story/opinion/2018/11/25/2020-election-hacking-interferencerussia-congress-legislation-trump-column/2078279002 [https://perma.cc/7l45y8hu]. though the recommendations in this article will most likely be applied by a future presidential administration, it is the author’s hope that congress may still be persuaded to act on a bipartisan basis to protect the electoral process. 306 the obama administration’s expulsion of russian diplomats and intelligence agents and closure of russian diplomatic compounds in december 2016 following revelations of a russian interference campaign did not deter russian election interference. see jeremy diamond, director of national intelligence: russian interference in us political system ongoing, cnn (aug. 2, 2018), https://www.cnn.com/2018/08/02/politics/dan-coatsrussia-interference-election-security/index.html [https://perma.cc/rm77drfn]; lauren gambino et al., obama expels 35 russian diplomats in 254 columbia journal of race and law [vol. 9:2 covert nature, are unlikely to be acknowledged by american officials, making their efficacy in deterring election interference difficult to assess. some scholars have called for greater transparency in american political candidate contact with foreign governments.307 however, even if candidate contact with russian agents is controlled, russia and other states are still likely to engage in their interference campaigns from afar.308 criminal indictment of foreign officials and entities under united states law is also an insufficient deterrent. mueller’s indictments are unlikely to result in the prosecution of the indicted russian agents and agencies due to russia’s refusal to extradite them as well as russia’s claims of innocence.309 policy advocates have called for new legislation that minimizes russian cyber intrusion and encourages proactive regulation by social media platforms. a new german law that requires social media platforms to remove hate-stirring messages within twenty-four hours and a similar proposal by french president macron have been criticized due to retaliation for us election hacking, guardian (dec. 30, 2016), https://www. theguardian.com/us-news/2016/dec/29/barack-obama-sanctions-russiaelection-hack [https://perma.cc/2wdj-99xv]; ali watkins, obama team was warned in 2014 about russian interference, politico (aug. 14, 2017), https://www.politico.com/story/2017/08/14/obama-russia-election-interference241547 [https://perma.cc/77t2-8cpm]. 307 for example, anthony gaughan has called for a mandatory forty-eight-hour reporting period by all united states political campaigns of any contacts with foreign governments. anthony j. gaughan, trump, twitter, and the russians: the growing obsolescence of federal campaign finance law, 27 s. cal. interdisc. l.j. 79, 126 (2017). 308 but note that some policy advocates have called for the articulation of standards in foreign election intervention that clearly distinguish foreign support for democratic elections in authoritarian and nondemocratic states from the covert spreading of misinformation in democratic states with free and fair electoral processes. these policy advocates’ hope is that clearly articulated standards will help galvanize a concerted response from states that support democracy against authoritarian states that seek to undermine it. see joshua geltzer & jake sullivan, how to prevent the next election disaster, politico (jan. 22, 2019), https://www.politico.com/magazine/story /2019/01/22/prevent-election-disaster-224032 [https://perma.cc/4fpy-esnn]. 309 martin pengelly, putin: russia will “never” extradite 13 nationals indicted by mueller, guardian (mar. 4, 2018), https://www.theguardian.com /us-news/2018/mar/04/vladimir-putin-never-extradite-13-russians-robertmueller [https://perma.cc/yjb4-jc28]. no. 1:191] russian election interference 255 censorship concerns.310 a comparable proposal in the united states would likely be challenged on first amendment grounds. the alliance for securing democracy311 has called for legislation that would apply the same truthfulness standards to political advertisements on social media as apply in traditional media under the honest ads act.312 in the international law arena, the senate foreign relations committee minority staff have called for the united states to initiate the drafting of an international treaty, modeled after arms control agreements, that would provide clear rules for the use of cyber tools during peacetime.313 the proposal has merit, although it would take some time to negotiate such a treaty, and russia would need to agree to become a party in order to be governed by its terms. the treaty would also need to contain precise mechanisms for monitoring and enforcement in order to deter practices that have become a key element of russia’s geopolitical strategy. finally, advocates have called for greater self-regulation of online hate-based content by social media companies.314 310 netzwerkdurchsetzungsgesetz [netzdg] [network enforcement act], june 30, 2017, deutscher bundestag: drucksachen [bt] 18/12356, https://cdn.netzpolitik.org/wp-upload/2017/06/synopse-netzdg-final.pdf [https://perma.cc/tmd3-fptr] (ger.); see also rick noack, everything we know so far about russian election meddling in europe, wash. post (jan. 10, 2018), https://www.google.com/amp/s/www.washingtonpost.com/amp html/news/worldviews/wp/2018/01/10/everything-we-know-so-far-aboutrussian-election-meddling-in-europe [https://perma.cc/lc2x-xbmy]. critics of the law have argued that it opens the door to censorship. germany: flawed social media law, hum. rts. watch (feb. 14, 2018), https://www.hrw.org/ news/2018/02/14/germany-flawed-social-media-law [https://perma.cc/9nqe2ns3]. 311 jankowicz, supra note 23. 312 foreign influence operations’ use of social media platforms (third party expert witnesses): hearing before the s. select comm. on intelligence, 115th cong. 31, 40, 70 (2018) (statement of laura rosenberger, director, alliance for securing democracy). see generally honest ads act, s. 1989, 115th cong. (2017). 313 sfrc report, supra note 41, at 161. 314 see curt levey, self-regulation, not government regulation, should keep russian ads off facebook, hill (nov. 1, 2017), https:// thehill.com/opinion/cybersecurity/358267-self-regulation-not-governmentregulation-should-keep-russian-ads-off [https://perma.cc/z5s5-knma]; john samples, why the government should not regulate content moderation of social media, cato inst. (apr. 9, 2019), https://www.cato.org/publications /policy-analysis/why-government-should-not-regulate-content-moderationsocial-media#full [https://perma.cc/r5ul-mbfq]. 256 columbia journal of race and law [vol. 9:2 the center for american progress has called for companies to proactively make and enforce terms-of-use policies that make the incitement of hate online a basis for the termination and suspension of accounts.315 most social media companies have such terms-of-use policies, even having them during the russian election interference in 2016.316 the key to effective self-regulation is greater investment of resources in the monitoring of hate-based accounts and the provision of avenues for appeal. this will ensure that monitors are not impermissibly targeting viewpoints or terminating the accounts of legitimate users.317 even if these legislative and self-regulatory tools are adopted, russian campaigns will continue to target social media platforms and may have some continued success in disseminating divisive rhetoric online through false profiles. to combat and mitigate this ongoing threat, a robust national security response must directly address state action that inflames racial division. b. national security strategy targeting racism the use of executive measures to address racism and newly identified security threats is not novel. case studies from the clinton and obama administrations provide excellent examples that illustrate how new policy priorities and betterunderstood security threats were addressed using executive orders, national security strategy documents, and presidential memoranda. president clinton issued executive order 12,898 in 1994, titled federal actions to address environmental justice in minority populations and low-income populations, to require federal agencies to take action on programs that had an adverse impact on the health or environment of minority and low-income populations.318 president obama 315 aastha uprety & danyelle solomon, combating hate and white nationalism in the digital world, ctr. for am. progress (aug. 8, 2018), https://www.americanprogress.org/issues/race/reports/2018/08/08/454494/ combating-hate-white-nationalism-digital-world/ [https://perma.cc/9emc2rqx]. 316 id. 317 id. though the scope of first amendment rights on social media has not yet been definitively adjudicated, social media companies should act in accordance with the spirit of the first amendment and not engage in viewpoint discrimination or censorship. 318 exec. order no. 12,898, 59 fed. reg. 7629 (feb. 11, 1994). no. 1:191] russian election interference 257 issued a 2015 national security strategy that identified climate change as “an urgent and growing threat to our national security” and a 2016 presidential memorandum that directed federal agencies “to ensure that climate change-related impacts are fully considered in the development of national security doctrine, policies, and plans.”319 the environmental justice executive order under president clinton and the national security strategy and policy memorandum addressing climate change under president obama reflect presidential responses to identified equity and security challenges.320 institutionalized discrimination that becomes a focal point for russian interference could similarly be addressed by a willing administration through these same mechanisms. 1. targeting racism through executive order the united states has a long history of utilizing executive orders to prohibit discriminatory practices. in 1941, president roosevelt issued executive orders that required government defense contractors to agree in their defense contracts not to discriminate on the basis of race or national origin.321 in 1954, president eisenhower, by executive order, prohibited government contractors from discriminating on the basis of race, religion, color, or national origin in employment, promotion, demotion, or transfer.322 in 1961, president kennedy issued an executive order requiring federal contractors to certify that they would “take affirmative action to ensure that applicants are employed, and that employees are treated . . . without regard to their race, creed, color, or national origin.”323 in 1965, president johnson issued executive order 11,246, 319 memorandum on climate change and national security, 2016 daily comp. pres. doc. 621 (sept. 21, 2016); statement on the 2015 national security strategy, 2015 daily comp. pres. doc. 85 (feb. 6, 2015). 320 memorandum on climate change and national security, 2016 daily comp. pres. doc. 621 (sept. 21, 2016); exec. order no. 12,898, 59 fed. reg. 7629 (feb. 11, 1994). 321 exec. order no. 8802, 3 c.f.r. 234 (supp. 1941); exec. order no. 9001, 6 fed. reg. 6787 (dec. 27, 1941). 322 exec. order no. 10,557, 19 fed. reg. 5655 (sept. 3, 1954). 323 exec. order no. 10,925, 26 fed. reg. 1977 (mar. 6, 1961). 258 columbia journal of race and law [vol. 9:2 which prohibited discrimination in federal employment due to race, color, religion, sex, or national origin.324 in addition to prohibiting racial discrimination by the federal government or by federally-affiliated contractors, presidents have also used executive orders to prohibit government practices that have had a racially discriminatory impact. a number of federal housing executive orders, for example, were issued to prevent discrimination in federally owned housing.325 president clinton expanded on this tradition of prohibiting federal agency action that has a discriminatory effect on minority communities by issuing executive order 12,898 in 1994 to prohibit federal agency action that has a negative environmental or health effect on minority and lowincome communities.326 clinton’s executive order to prohibit federal agency harm to minority communities in the environmental space could serve as a model for an executive order prohibiting state action that has a disparate impact in the national security arena. this executive order would seek to minimize institutional discrimination and disparate racial impacts by government agencies. racial profiling, private prison funding, federal prosecution, and sentencing practices would all be subject to review and alteration. unlike in litigation where a national security rationale often serves as a justification for judges to uphold practices despite their disparate racial impact,327 an executive order would require federal agencies to end such practices because they undermine the national security interests of the nation. some executive orders addressing national security have inferred that negative racial impacts undermine national security. though not explicit in its terms, executive order 12,333 was drafted, in part, as a response to the racially discriminatory targeting of civil rights organizations under j. edgar hoover.328 making this goal—the avoidance of racially 324 exec. order no. 11,246, 30 fed. reg. 12,319 (sept. 24, 1965). 325 see exec. order no. 11,063, 27 fed. reg. 11,527 (nov. 20, 1962); exec. order no. 12,892, 59 fed. reg. 2939 (jan. 17, 1994). 326 exec. order no. 12,898, 59 fed. reg. 7629 (feb. 11, 1994). 327 see, e.g., discussion of the korematsu and iqbal cases supra part iv. 328 see exec. order no. 12,333, 3 c.f.r. 200 (1982), reprinted as amended in 50 u.s.c. § 3002 (2017) (originally classified as 50 u.s.c. § 401 (2006)). no. 1:191] russian election interference 259 discriminatory conduct—explicit in an existing or new national security executive order would enable a direct response to the racial divisions fueling the russian interference campaigns. 2. a model national security strategy and executive order as required by law, every presidential administration produces an annual national security strategy report to congress that details, among other things, the “worldwide interests, goals, and objectives of the united states that are vital to the national security of the united states” and “proposed short-term and long-term uses of the political, economic, military, and other elements of the national power of the united states to protect or promote the interests and achieve the goals and objectives” of the nation.329 the report provides administrations with an opportunity to detail new national security challenges that they must confront or to present innovative approaches to a national security challenge. in his 2015 national security strategy, president obama became the first president to detail how he perceived addressing climate change as a national security priority of the united states.330 while previous administrations had not characterized it as a national security threat in the same manner, the obama administration determined that the impacts of climate change presented serious national security challenges to the united states and detailed the measures that it had taken and would continue to take to respond to climate change.331 in his 2016 presidential memorandum, president obama operationalized this national security priority by directing federal departments and agencies to “ensure that climate change-related impacts are fully considered in the development of national security doctrine, policies, and plans.”332 the presidential memorandum 329 50 u.s.c § 3043 (2017) (originally classified as 50 u.s.c. § 404a (2006)). 330 statement on the 2015 national security strategy, 2015 daily comp. pres. doc. 85 (feb. 6, 2015). 331 id. 332 memorandum on climate change and national security, 2016 daily comp. pres. doc. 621 (sept. 21, 2016). 260 columbia journal of race and law [vol. 9:2 created an interagency task force charged with developing an action plan for implementing the new climate change strategy.333 just as climate change was incorporated into the 2015 national security strategy, a future national security strategy should prioritize the elimination of state action with disparate racial impacts. to help develop and implement the strategy, a task force should be formed with the reduction of institutional racism as a key objective. there is precedent for such an approach. president obama created a task force on twenty-first century policing in response to the shooting of michael brown in ferguson, missouri and the unrest that followed.334 some general principles would need to apply to the national security strategy. to ensure that the strategy does not become a new mechanism for targeting american citizens or organizations labeled as racially polarizing,335 the emphasis of the strategy would be on reducing state action that results in disparate racial impacts that are exploited as part of a foreign influence campaign. as with president obama’s twenty-first century policing task force, community organizations and nongovernment experts would be included.336 the national security strategy would include findings that detail how the russian government seeks to influence democratic electoral processes through a targeted social media campaign that inflames racial divisions and polarizes the electorate. it would prioritize the retrenchment of institutional racism and disparate racial impacts in federal, state, and local government actions as a prophylactic measure against russian influence campaigns. government actions having a disparate impact on minority communities would be identified and plans would be developed for their minimization. an executive order that outlines the racial equity scheme would then operationalize the national security strategy. 333 id. 334 exec. order no. 13,684, 79 fed. reg. 76,865 (dec 18, 2014); see also president’s task force on 21st century policing, final report of the president’s task force on 21st century policing (2015). 335 mechanisms already exist for investigating and prosecuting extremist organizations with violent ideologies; the goal of this effort is to reduce polarizing state action and to respond to foreign state activity. 336 president’s task force on 21st century policing, supra note 334. no. 1:191] russian election interference 261 3. a response to critiques a racism as threat national security approach would not be without its critics. some may argue that institutionalized racism does not exist, particularly on the part of national security and law enforcement institutions. however, there is significant evidence that indicates various national security and law enforcement practices have a disproportionately negative impact on minority communities, as discussed in part iv. additionally, assessments of the 2016 russian election interference campaign unequivocally demonstrated that russians targeted americans with a racially divisive cyber campaign.337 some might argue that targeting institutional discrimination is not a direct response to russian election interference. yet, a racism as threat national security strategy is an important element of any such response because it seeks to decrease the scope and intensity of internal racial division stemming from policies that have a disparate racial impact. the less intense the internal racial divisions in the united states, the less likely russia will be able to exploit those divisions. it should also be noted that the exploitation of internal societal divisions is not only an american vulnerability— russia has also targeted democratic elections in european states as part of a global geopolitical strategy to destabilize governments and influence elections with cyber campaigns uniquely targeted to the racial and social divisions within those states.338 finally, some might critique a national security strategy that seeks to mitigate institutional discrimination as a bulwark against russian cyber intrusion because the federal government does not control state and local law enforcement practices that have disparate impacts on minority communities. the response to both critiques is similar. while the current administration might not be receptive to this national security strategy, many state and local officials are likely to be sympathetic to these concerns. a racism as threat national security strategy could be pursued in all fifty states and would provide state and local officials with an additional policy rationale to eliminate state and local practices that have a disparate racial impact. in the absence of federal leadership, state and local officials concerned 337 see discussion supra section ii.a. 338 see discussion supra section ii.c. 262 columbia journal of race and law [vol. 9:2 about protecting electoral processes and the national security of the united states could convene a task force to consider what actions they might collectively take to mitigate russian cyber intrusion. similarly, a presidential administration supportive of a racism as threat national security approach could work closely with state, local, and community leaders to pursue an institutional discrimination mitigation strategy. c. bolstering legislative reform the value of a racism as threat framework is that it helps to crystalize for policymakers that internal racial division is augmented by state practices that have a negative impact on minority communities and that such divisions can now be weaponized against the united states through foreign cyber influence campaigns. the american people have a collective interest in minimizing state-based sources of racial discord that are so easily weaponized against the united states. a national security rationale should be proffered when federal and state legislatures attempt to address practices that have a disparate racial impact. racial profiling in criminal enforcement against the black community, immigration-related investigation of the latinx community, and terror-related investigation of the muslim community should be understood as equal protection violations and national security threats that create space for foreign influence campaigns. such an understanding would motivate national security advocates to join with civil rights advocates in pushing for legislative reform that seeks to eliminate state practices that have disparate racial impacts. viii. conclusion american national security institutions have historically been shaped by the views of their leaders. accordingly, national security institutions have likewise been vulnerable to the personal fears and biases of those in charge. since the nation’s founding, a recurring theme of minority race as threat has manifested itself in institutional policies. this theme has reflected racial tensions and divisions in american society, creating a space for racially biased practices such as cointelpro’s disruption of civil rights organizations, the world war ii internment of japanese citizens, post-9/11 racial profiling of no. 1:191] russian election interference 263 muslims, and punitive immigration crackdowns on latinx communities. for nearly a century, russia has actively capitalized on american racial divisions for its own geopolitical advantage. during the cold war, america’s treatment of racial minorities was the bedrock of russia’s global criticism regarding the limitations of american liberal democracy. today, russia has found a new front for this delegitimization campaign—within the united states through the social media interactions of americans. russia has attempted to weaponize america’s racial divisions against its democratic processes through “fake news,” social media advertisements, and social media posts meant to rile existing divisions. the more divided and disenchanted americans become with their fellow citizens and with their political processes, the less the united states (and its western colleagues) will be able to galvanize collective pressure against russian geopolitical objectives. because of its fraught history with race and because russia has effectively intensified racial divisions online, america must acknowledge in its national security and policyplanning strategies that racism is a strategic threat to the united states and incorporate measures to address that threat. racism is not just a moral or equality failure, but also a strategic threat that is exploitable by america’s enemies. the most direct response to this strategic threat is to take measures to minimize and eliminate it. fortunately, the actions of state agents are precisely where the federal, state, and local government can target reform efforts. reducing institutionalized racism will reduce racial tensions, which will in turn reduce russia’s ability to stimulate divisions. americans whose rights and interests are adequately and fairly being protected by the state are less likely to be vulnerable to russia’s weaponized racial division. this article seeks to begin a conversation with the public, american political leaders, and policymakers about the importance of american institutional leaders treating racism as a national security threat deserving of a clear and direct response. the author’s hope is that this piece will encourage further study and action on this topic. eliminating institutional racism is a generations-long effort that will require action on a number of fronts—executive, legislative, judicial, political, academic, federal, state, and local—and national security planning must be one of those fronts. to those that believe 264 columbia journal of race and law [vol. 9:2 that eliminating racial discrimination and racial division is impossible, this article suggests that any tools that help to minimize institutional discrimination and racial division, however imperfect, are worthy of pursuit. a racism as national security threat framework is a new tool in the arsenal. columbia journal of race and law privacy law concerns associated with the reintroduction of the citizenship question to the 2020 national census matthew m. welch the right to be let alone is indeed the beginning of all freedom. –william o. douglas1 the proposed reintroduction of the citizenship question to the national census challenges an individual's right to privacy from the government. at issue is the conflict between an individual’s right to privacy regarding personal citizenship data and the government’s need for that information. to that end, this paper will discuss the history of the citizenship question; the potential privacy violations and resulting harms; the legality of reintroducing the citizenship question; and the best solutions to alleviate privacy concerns while still allowing the census bureau to compile citizenship data. i. introduction .................................................................. 2 ii. the history of the citizenship question in the national census ............................................................. 3 a. pre-2017 history of the citizenship question ......... 5 b. reintroduction of the citizenship question ............. 6 iii. privacy law issues ......................................................... 8 a. potential privacy violations ..................................... 9 b. potential privacy harms .........................................11 1. primary harms ..................................................11 2. secondary harms ...............................................13 i. incorrect reapportionment ..........................14 ii. decreased federal funding .........................15 iii. insufficient national disaster relief and epidemic preparedness ................................16 1 pub. util. comm’n v. pollak, 343 u.s. 451, 467 (1952) (douglas, j., dissenting). 2 columbia journal of race and law [vol. 10:1 iv. legality of the citizenship question in light of privacy law concerns ..................................................17 a. arguments for legality ............................................17 1. precedent and lack of standing ........................18 2. limited intrusiveness ........................................19 3. strong statutory protections .............................21 b. arguments against legality ...................................21 1. failure to conduct a privacy impact assessment .........................................................22 2. arbitrary and capricious decision ....................23 3. enumeration clause challenge .........................25 v. potential solutions ......................................................27 a. non-mandatory citizenship question ....................27 b. keeping the citizenship question only on the acs ..........................................................................28 c. use of federal administrative records to collect citizenship data ..........................................29 vi. conclusion ....................................................................31 i. introduction supreme court justice william douglas recognized the importance of what samuel warren and william brandeis described in 1890 as “the right to be let alone”—better known as the right to privacy.2 today, the right to privacy from one’s own government is being challenged by the proposed reintroduction of the citizenship question to the national census.3 at issue here is the conflict between an individual’s right to privacy regarding personal citizenship data and the government’s need for that 2 samuel d. warren & william brandeis, the right to privacy, 4 harv. l. rev. 193, 193 (1890). 3 new york v. u.s. dep’t of commerce, 351 f. supp. 3d 502, 604 (s.d.n.y. 2019). no. 10:1] citizenship question and the 2020 census 3 information. while this reintroduction has been viewed as a political move, few understand the privacy issues such a question poses.4 therefore, section ii of this paper will discuss the history of the citizenship question and how it was reintroduced to the national census. section iii will show how the mandatory citizenship question is a privacy violation that has the potential to cause primary and secondary harms to residents of the united states which could include deportation, improper reapportionment, decreased federal funding, and disaster preparedness problems. section iv will analyze the legality of the citizenship question in light of department of commerce v. new york5, a recent supreme court case that dealt with a challenge to the reintroduction of the citizenship question. and finally, section v will show how the best solution to alleviate privacy concerns—while still allowing the census bureau to compile citizenship data—is to create a central database within the census bureau that can access citizenship information from administrative records already in the government’s control. ii. the history of the citizenship question in the national census the national census is one of the few textually explicit mandates imposed on congress by the constitution.6 the founding fathers agreed that an “actual enumeration” of all americans should be made every ten years “in such manner as [congress] 4 see muzaffar chishti & jessica bolter, census citizenship question triggers legal and political fallout, migration policy institute (oct. 24, 2018), https://www.migrationpolicy.org/article/census-citizenship-question-triggerslegal-and-political-fallout [perma.cc/ldj8-vmyd] (discussing, inter alia, confidentiality concerns expressed by immigrants in census pretest interviews). 5 139 s. ct. 2551, 2574–76 (2019) (denying the commerce department from reintroducing the citizenship question by remanding the case back to the agency for failing to follow the administrative procedures act). 6 u.s. const. art. i, § 2, cl. 3. 4 columbia journal of race and law [vol. 10:1 shall by law direct.”7 in accordance with this constitutional mandate, the first national census was conducted on august 2, 1790, during george washington’s presidency.8 the secretary of state, thomas jefferson, was in charge of implementing the census and collecting the data.9 since then, the national census has been conducted every ten years.10 however, the governmental actors responsible for carrying out the census have changed dramatically over time. originally, either the president would issue an executive order or congress would pass legislation for each national census, but this impromptu procedure yielded varied results from one census to the next.11 to fix this, congress passed the permanent census act in 1902 which created the census bureau.12 congress also codified administrative rules for conducting the national census in 1954.13 some of the rules provide privacy protections like never publishing private census data and not allowing any government agencies to use private census data against respondents.14 today, the census bureau—an admin-istrative 7 id. 8 1790 overview, u.s. census bureau, https://www.census.gov/history/ www/through_the_decades/overview/1790.html [https://perma.cc/fm6k-ls v6] (last visited mar. 16, 2019). 9 id. 10 through the decades, u.s. census bureau, https://www.census.gov/ history/www/through_the_decades (last visited mar. 16, 2019). 11 carrie pixler, note, setting the boundaries of the census clause: normative and legal concerns regarding the american community survey, 18 wm. & mary bill of rts. j. 1097, 1100 (2010). 12 when did the u.s. census bureau become a permanent agency?, u.s. census bureau, https://www.census.gov/history/www/faqs/agency_ history _faqs/when_did_the_us_census_bureau_become_an_agency.html [https://perma.cc/vf7l-8wmk] (last visited mar. 16, 2019). 13 13 u.s.c. §§ 1–402 (2018). 14 title 13, u.s. code, united states census bureau, https://www.census.gov/history/www/reference/privacy_confidentiality/title_ 13_us_code.html [https://perma.cc/cu8n-c5kz] (last visited mar. 24, 2019). no. 10:1] citizenship question and the 2020 census 5 agency under the umbrella of the commerce department— conducts the national census in accordance with the rules enumerated in title 13 and is responsible for drafting all census questions.15 a. pre-2017 history of the citizenship question the citizenship question originated with thomas jefferson in 1800 and was first included on the national census in 1820.16 the original citizenship question asked for the “number of foreigners not naturalized” in each household.17 since 1820, there has been at least one question concerning citizenship status on the national censuses of 1830, 1870, and 1890-1950.18 while the citizenship question was removed from the 1960 national census, from 1970-2000 the citizenship question was asked on the long-form census, which was only sent to a small portion of the population.19 evidence shows that currently, the annual american community survey (acs), which replaced the longform census, has asked a citizenship question every year since 2005.20 the acs is administered annually to approximately three 15 agency history, u.s. census bureau, https://www.census.gov/ history/www/census_then_now/ [https://perma.cc/98xj-35g8] (last visited apr. 27, 2019). 16 hans a. von spakovsky, only in the u.s. is it controversial for the census to ask about citizenship, the heritage foundation (mar. 30, 2018), https://www.heritage.org/immigration/commentary/only-the-us-itcontroversial-the-census-ask-about-citizenship [https://perma.cc/6tnqcemv]. 17 census for 1820, u.s. census bureau, https://www.census.gov/ library/publications/1821/dec/1820a.html [https://perma.cc/2m2m-r9d6] (last visited mar. 16, 2019). 18 see dep’t of commerce v. new york, 139 s. ct. 2551, 2561–62 (2019); see also chishti & bolter, supra note 4. 19 chishti & bolter, supra note 4. 20 id. https://perma.cc/2m2m-r9d6 6 columbia journal of race and law [vol. 10:1 percent of all households21 and, until recently, was the only method the census bureau had for directly collecting citizenship information. b. reintroduction of the citizenship question in january 2017, an executive order directing the census bureau to add a citizenship question was drafted but never issued.22 then, in december 2017, the department of justice (doj) asked the commerce department to include a citizenship question on the 2020 national census.23 the doj argued that citizenship data is “critical to the department’s enforcement of section 2 of the voting rights act and its important protections against racial discrimination in voting.”24 section 2 of the voting rights act aims to prevent vote dilution during redistricting, which may occur when a particular racial group is prevented from forming a majority in a district where it should hold a majority, assumingly due to non-citizens voting in elections.25 to protect against this, the doj contended that it needed citizenship information on all residents.26 on march 26, 2018, secretary ross ordered the addition of a citizenship question on the 2020 national census—effectively lighting a political powder keg.27 senators, including dianne feinstein, responded by sending a memo to secretary ross 21 id. 22 chishti & bolter, supra note 4. 23 see doj memo to census bureau, re: request to reinstate citizenship question on 2020 census questionnaire (dec. 12, 2017), https://assets .documentcloud.org/documents/4340651/text-of-dec-2017-doj-letter-tocensus.pdf. 24 id. 25 id. 26 id. 27 see chishti & bolter, supra note 4. no. 10:1] citizenship question and the 2020 census 7 imploring him not to add the citizenship question.28 senator feinstein argued that an additional question on citizenship could not be properly field-tested in time, and it would “likely depress participation in the 2020 census from immigrants who fear the government could use the information to target them.”29 this concern was also echoed throughout arguments opposing the citizenship question from twenty state attorneys general30, 161 mayors31, numerous united states senators32, and former directors of the census bureau.33 in the initial district court challenge of the citizenship question, evidence showed that secretary ross unilaterally initiated steps to reintroduce the citizenship question before the voting rights act explanation was posited.34 secretary ross first elicited requests from both the department of homeland security and the executive office for immigration review within the department of justice about whether the citizenship question 28 see senator dianne feinstein (d-ca) et al., memo to secretary ross (jan. 5, 2018), https://www.feinstein.senate.gov/public/_cache/files/3/7/376f8dcd7f35-4913-9e80cd1e48e3b312/7e4c59b2988e2cc14866543edd7e01a6. 2018.01.05census-citizeship-letter.pdf [https://perma.cc/95qs-hmc3]. 29 id. 30 see memo to secretary ross from twenty state attorneys general (feb. 12, 2018), https://ag.ny.gov/sites/default/files/multi-state_letter_2020_ census .pdf (stating that a citizen question “would significantly depress participation” because of governmental mistrust throughout the immigration community). 31 sara durr, nation’s mayors to secretary ross: don’t politicize census. remove the citizenship question, the united states conference of mayors (mar. 27, 2018), https://www.usmayors.org/2018/03/27/nationsmayors-to-secretary-ross-dont-politicize-census-remove-the-citizenshipquestion/ [https://perma.cc/yf8p-r5nr]. 32 see senator dianne feinstein, et al, supra note 28. 33 see memo to secretary ross from former directors of the u.s. census bureau (jan. 26, 2018), https://www.washingtonpost.com/r/2010-2019/ washingtonpost/2018/03/27/editorial-opinion/graphics/doj_census _ques_ request_former_directors_ltr_to_ross.pdf?tid=a_mcntx&noredirect=on. 34 dep’t of commerce v. new york, 139 s. ct. 2551, 2575–76 (2019). 8 columbia journal of race and law [vol. 10:1 should be reintroduced.35 after neither agency formally requested the citizenship question, the commerce department proffered the voting rights acts rationale for reintroducing the citizenship question.36 secretary ross then contacted the civil rights division of the department of justice, after which the civil rights division expressed an interest in acquiring citizenship information to help enforce the voting rights act.37 but it appears that the civil rights division’s interest regarding the citizenship question was more on the commerce department’s behalf than on its own.38 iii. privacy law issues for an individual to have legal standing to bring a privacy law claim in court, that person must have suffered some type of actual or threatened privacy harm.39 to this day, a standard definition of privacy harm has evaded legal scholars,40 likely due to the subjective nature of privacy itself. nonetheless, privacy harm can generally be understood as “the negative consequence of a privacy violation.”41 thus, to bring a valid privacy law challenge to the addition of the citizenship question, a plaintiff must prove that the 35 id. 36 id. 37 id. 38 id. 39 see lujan v. defs. of wildlife, 504 u.s. 555, 560–61 (1992). 40 see, e.g., richard b. parker, a definition of privacy, 27 rutgers l. rev. 275, 280 (1974) (defining privacy as control over who can sense us); see also samuel warren & louis brandeis, the right to privacy, 4 harv. l. rev. 193 (1890) (defining privacy as “the right to be let alone”); see also daniel j. solove, a taxonomy of privacy, 154 u. pa. l. rev. 477, 482 (2006) (defining privacy in terms of specific activities that pose privacy problems). 41 m. ryan calo, the boundaries of privacy harm, 86 ind. l.j. 1, 2 (2011). no. 10:1] citizenship question and the 2020 census 9 mandatory census question caused a privacy violation that resulted in concrete and particularized harm.42 a. potential privacy violations when determining whether there is a privacy violation, courts use the reasonable expectation of privacy approach— asking whether a reasonable person would view the action as an unwanted intrusion on privacy.43 at issue here is the conflict between an individual’s right to privacy regarding personal citizenship data and the government’s need for that information. the doj argues that it needs citizenship data to enforce section 2 of the voting rights act.44 however, requiring all households to answer a citizenship question, under threat of criminal penalties,45 raises potential decisional, informational, and associational privacy violations. a decisional privacy violation occurs when an individual’s right to decide for oneself is infringed.46 examples of this include the right to die, the right to marry, and the right to choose an abortion.47 the right to decide also encompasses the decision of whether or not to provide the government with information about one’s citizenship. a government mandate to answer whether a person is a citizen thus intrudes upon decisional priv-acy because that person no longer can decide whether to provide the 42 new york v. u.s. dep’t of commerce, 351 f. supp. 3d 502, 606-07 (s.d.n.y. 2019). 43 see, e.g., rakas v. illinois, 439 u.s. 128, 154–55 (1978) (powell, j., concurring) (stating that the fourth amendment protects a person’s reasonable expectation of privacy). 44 see supra section ii. b. reintroduction of the citizenship question. 45 13 u.s.c. § 221 (2018) (stating that refusing to answer, or falsely answering, census questions can result in fines up to 500 dollars). 46 david levine, associate professor of law, elon university school of law, privacy law lecture: invasions of privacy (jan. 22, 2019) (transcript on file with author). 47 id. 10 columbia journal of race and law [vol. 10:1 government with this information. instead, congress requires it.48 while the government can, and does, gather information on its populace,49 the government need for that information must be greater than the privacy violation caused by collecting the data. informational privacy violations include the unwanted dissemination of private information.50 the citizenship question infringes upon informational privacy because it may result in the unwanted dissemination of citizenship information to the census bureau. while there are strict rules in place that aim to keep private census data confidential, even from other government agencies, this does not erase privacy concerns.51 for example, in the past government agencies outside the census bureau have acquired citizenship information illegally and misused the information to the detriment of people residing in the united states.52 associational privacy violations involve limitations on the ability to associate with individuals.53 the citizenship question impedes associational privacy because families may feel forced to separate. because the census is sent to every household, and only one person fills out the census for each household,54 immigrant 48 13 u.s.c. §§141–193 (2018). 49 see, e.g., margaret hu, taxonomy of the snowden disclosures, 72 wash. & lee l. rev. 1679, 1689–90 (2015) (showing that the nsa collected data on citizens from a wide array of sources including wiretapping, metadata of phone records, and social media data). 50 see levine, supra note 46, at 8. 51 see 13 u.s.c. §§ 1–402 (2018) (codifying a number of strict guidelines that the census bureau must follow in performing the national census). 52 epic v. commerce (census privacy), electronic privacy info. ctr, https://epic.org/privacy/litigation/pia/epic-v-commerce/#pia [https://perma.cc/3bl4-7b3z] (last visited mar. 17, 2019) (describing how during wwi the census bureau disclosed confidential information from the national census to the department of justice to help enforce the draft). 53 see levine, supra note 46, at 8. 54 thomas s. mayer, u.s. bureau of the census, privacy and confidentiality research and the u.s. census bureau recommendations based on a review of the literature 28 (feb. 7, https://perma.cc/3bl4-7b3z no. 10:1] citizenship question and the 2020 census 11 families having both citizens and non-citizens living in a single residence may be compelled to separate due to fears that they will be forced to provide potentially harmful citizenship infor-mation on other family members. therefore, a citizenship question could create associational privacy violations because families may feel forced to separate in order to protect non-citizens. b. potential privacy harms every question on the census violates one’s privacy at some level. to have a cause of action, however, there must be a real or readily apparent harm associated with the collection of citizenship data that a reasonable person would determine outweighs the government’s interest in that data.55 as the numerous objections from government officials have illustrated, there are a number of potential harms that not only directly affect respondents but that may also indirectly impact all americans.56 1. primary harms the primary harm associated with the citizenship question is that the government will use the information to target and deport persons whose immigration status may be uncertain.57 while title 13 of the united states code provides great protections, like prohibiting the census bureau from sharing personal information with other government agencies,58 many still fear that they, or 2002), https://www.census.gov/srd/papers/pdf/rsm2002-01.pdf [https://perma. cc/sjl6-zu9p]. 55 morales v. daley, 116 f. supp. 2d 801, 818 (s.d. tex. 2000). 56 see senator dianne feinstein, et al., supra note 28; see also memo to secretary ross from twenty state attorneys general, supra note 30; memo to secretary ross from former directors of the u.s. census bureau, supra note 33. 57 see senator dianne feinstein, et al., supra note 28. 58 see 13 u.s.c. §§ 1–402 (2018). 12 columbia journal of race and law [vol. 10:1 their loved ones, may be targeted by immigration services based on citizenship information from the census. and based on history, these fears are not unfounded.59 the united states government has misused personal census data on numerous occasions, including to intern japaneseamericans during wwii and to locate arab-american populations after 9/11.60 during wwii, congress passed the second war powers act, which greatly reduced restrictions on who could access private census data.61 this allowed the census bureau to give the u.s. secret service personal information on all japanese-americans living near washington, d.c.62 the census bureau also gave the war department information on japaneseamericans living in the western states; this information was used to intern thousands of japanese-americans.63 over sixty years later, in 2004, the census bureau presented the depart-ment of homeland security with a list of cities having over 1,000 arabamericans, as well as a list showing how many arab-americans resided in each zip code area, broken down by country of origin.64 this information was used to help target and apprehend arabamericans with alleged ties to terrorism. even today, the privacy of census data is still somewhat tenuous. while title 13 protects individual level data, this protection is congressional, not constitutional.65 the constitution does not mandate that private census data should be protected.66 it only mandates that congress make an enumeration of all people living in the united states.67 thus, congress has the discretion to afford 59 epic v. commerce (census privacy), supra note 52, at 9 60 id. 61 id. 62 id. 63 id. 64 id. 65 13 u.s.c. §§ 1–402 (2018). 66 u.s. const. art. i, § 2, cl. 3. 67 id. no. 10:1] citizenship question and the 2020 census 13 as much, or as little, protection to individual level census data as it deems necessary. the block group level data that is distributed legally to many government agencies could also be used to ferret out large populations of non-citizens if citizenship information is included in the census. block groups are geographical areas containing between 600 to 3,000 people.68 the census bureau uses the national census to create statistics on block groups that are used by government agencies.69 block group level citizenship data could potentially allow agencies such as immigration control and enforcement (ice) to target geographic areas with high populations of non-citizens. furthermore, with the citizenship data, it would be an easy task for a government agency to uniquely identify an individual, even without his or her name.70 latanya sweeney, the director of the data privacy lab at harvard, explained that eighty-seven percent of the population could be uniquely identified by their zip code, gender, and date of birth.71 thus, a government agency could easily target specific noncitizens using census data that is legally distributed by the census bureau. however, specific individuals targeted by the government are not the only ones that may be harmed by the inclusion of a citizenship question. everyone residing in the united states could be indirectly harmed. 2. secondary harms while the primary privacy harm to a non-citizen is readily apparent—deportation and persecution—the secondary harms 68 u. s. census bureau, 2010 census summary file 238 (2012), https://www.census.gov/prod/cen2010/doc/sf2.pdf. 69 id. 70 latanya sweeney, simple demographics often identify people uniquely 12 (carnegie mellon univ., data privacy working paper, paper no. 3, 2000), https://dataprivacylab.org/projects/identifiability/paper1.pdf. 71 id. 14 columbia journal of race and law [vol. 10:1 caused by the inclusion of a citizenship question on the populace as a whole are also concerning. in an amicus brief to the supreme court, former directors of the census bureau argued that “a mandatory inquiry into citizenship status is all the more likely to engender privacy concerns, particularly among non-citizens.”72 because of the privacy concerns, the former directors posited that non-citizens who are already mistrustful of the government will “misrepresent themselves on the census form,” thereby leading to an erroneous census, and “any effort to correct for the data would be futile.”73 an erroneous census, caused by a significant amount of the population failing to respond because of privacy concerns, may lead to improper reapportionment, decreased federal funding, and preparedness problems for epidemics and national disasters—all secondary harms caused by a privacy intrusion that will impact all americans.74 i. incorrect reapportionment the reason the citizenship question is highly political is largely due to the reapportionment issue created by potentially erroneous census information.75 since the national census is used to reapportion the house of representatives every ten years, incorrect census data could lead to improper representation, harming millions of americans.76 thus, to correctly reapportion house districts requires that census data show the correct population densities for all areas of the country. in evenwel v. abbot, the supreme court clarified that all people living in the united states, including children, the incarcerated, 72 brief for the former directors of the u.s. census bureau as amici curiae supporting appellees at 24, evenwel v. abbott, 136 s. ct. 1120 (2016) (no. 14-940). 73 id. at 24–25. 74 see chishti & bolter, supra note 4. 75 id. 76 id. no. 10:1] citizenship question and the 2020 census 15 and non-citizens, are required to be counted during reapportionment.77 thereafter, the potential chilling effect of the citizenship question became highly politicized because non-citizens who fail to respond to the census would likely reduce the number of democratic house seats.78 this is because non-citizens typically live in metro areas that are democratic strongholds.79 thus, democrats have vehemently opposed the addition of the citizenship question because failing to include these people in the census would likely dilute democratic power.80 regardless of one’s political beliefs, the potential chilling effect of the citizenship question could undermine the integrity of the house of representatives, thereby harming millions of citizens and noncitizens alike through under-representation in congress. ii. decreased federal funding another consequence of an undercount is decreased federal funding, which could also harm millions of americans.81 robert shapiro, a senior policy fellow at georgetown university’s school of business, has estimated that 24 million or more people may fail to respond to the 2020 national census because of privacy concerns—namely, that private citizenship data will be shared with law enforcement authorities.82 because many federal programs rely on population data from the census to determine the amount of funding, this could harm millions of people, especially those living in areas with high immigrant 77 evenwel, 136 s. ct. at 1123. 78 see chishti & bolter, supra note 4. 79 id. 80 id. 81 id. 82 deanna paul, the supreme court agreed to hear the citizenship case. here’s why that matters, wash. post (nov. 20, 2018), https://www. washingtonpost.com/politics/2018/11/20/supreme-court-agreed-hear-censuscitizenship-case-heres-why-that-matters/ [https://perma.cc/wp4q-qqbb]. 16 columbia journal of race and law [vol. 10:1 populations.83 for example, eighty percent of the federal funding that states receive comes from programs that use census data to allocate funds.84 in 2016, this included 493 billion dollars.85 medicaid, in particular, relies on census headcounts for deter-mining state funding.86 thus, if the 2020 census undercounts a sig-nificant portion of the population, states will lose federal funding, and all people living within that state will be harmed. iii. insufficient national disaster relief and epidemic preparedness a discrepancy between the official census population and the actual population can also lead to problems with disaster relief and epidemic preparedness.87 many state and federal programs, like fema, use census data for planning purposes.88 according to jeffrey schlegelmilch, the deputy director for the national center for disaster preparedness at columbia university, if the census data is inaccurate, programs will be insufficiently funded and have blind spots because the government will not know how many people live in a certain area.89 this could be extremely harmful if a natural disaster or epidemic occurs in an area with a high concentration of non-citizens because proper relief would not be forthcoming for all residents. cities like houston, los angeles, san francisco, and new york which have large immi-grant populations have already faced disasters from hurricanes, earthquakes, 83 see chishti & bolter, supra note 4. 84 id. 85 id. 86 id. 87 see paul, supra note 82. 88 id. 89 id. no. 10:1] citizenship question and the 2020 census 17 and terrorist attacks and without sufficient funding these cities are susceptible to humanitarian crises.90 iv. legality of the citizenship question in light of privacy law concerns as addressed in the preceding sections, the addition of the citizenship question on the national census creates privacy violations that have the potential for grave primary harm to noncitizens who may be targeted by the government, as well as secondary harms that could affect all people living in the united states. however, this does not mean that the citizenship question is illegal from a purely privacy law perspective. recently, the supreme court denied the commerce department from reintroducing the citizenship question by remanding the case back to the agency for failing to follow the administrative procedures act (apa).91 the court held that the reasoning behind the reintroduction of the citizenship question was pretextual, thus violating the arbitrary and capricious standard under the apa.92 the following subsections will further delve into argu-ments, both for and against the reintroduction of the citizenship question. a. arguments for legality the census bureau admits that the right to privacy is defined “as the individual’s right to decide whether and to what extent he will divulge to the government his thoughts, opinions, 90 u.s. immigrant population by metro. area, migration policy inst., https://www.migrationpolicy.org/programs/data-hub/charts/us-immigrantpopulation-metropolitan-area [https://perma.cc/k7q2-eb8r] (last visited oct. 1, 2019). 91 dep’t of commerce v. new york, 139 s. ct. 2551, 2574–76 (2019) (holding that the vra rationale was pretextual and “seems to have been contrived”). 92 id. https://perma.cc/k7q2-eb8r 18 columbia journal of race and law [vol. 10:1 feelings, and the facts of his personal life.”93 thus, every question on the census violates an individual’s right to privacy. however, for a question to be a reasonable and legal search under the fourth amendment, the government’s justification for invading that privacy must be “greater [than] the privacy interest of the individual.”94 as precedent has shown, most questions on the census do not intrude upon fourth amendment rights because the intrusion is limited, and the individual responses are statutorily assured to remain confidential.95 furthermore, even though the supreme court recently remanded the citizenship question back to the commerce department, it specifically said in the opinion that the question was not substantively invalid, only that there was a flaw in the reasoned decision-making of the agency.96 1. precedent and lack of standing one of the strongest arguments for the citizenship question’s legality is that no court has ever held it was a violation of a person’s fourth amendment right to privacy.97 this argu-ment is certainly not foolproof—just because a certain action has not been deemed unconstitutional does not mean that it will remain constitutional indefinitely. however, it certainly holds weight. earlier this year, multiple states brought suit against the commerce department in the southern district of new york claiming they have been, or will be injured, by the inclusion of a citizenship question based on a theory of loss of privacy.98 the court held that the “unlawful disclosure of confidential census data” (the primary harm discussed in section iii.b.i) would be an 93 mayer, supra note 54, at 2–3. 94 see, e.g., morales v. daley, 116 f. supp. 2d 801, 817 (s.d. tex. 2000). 95 id. at 820. 96 dep’t of commerce v. new york, 139 s. ct. at 2574–76. 97 see id.; see also new york v. u.s. dep’t of commerce, 351 f. supp. 3d 502, 618–19 (s.d.n.y. 2019). 98 new york v. u.s. dep’t of commerce, 351 f. supp. 3d at 604. no. 10:1] citizenship question and the 2020 census 19 invasion of privacy that “constitute[s] a cognizable article iii injury.”99 however, absent evidence showing an unlawful disclosure, there was no readily apparent harm and, thus, no article iii standing on which to bring the claim.100 the court even acknowledged that the confidentiality protections afforded to census data could be repealed by a future congress but stated that even though “plaintiffs may be subjectively fearful that the government will misuse citizenship data obtained through the census, however understandable such fears may be, [it] is ‘insufficient to create standing.’"101 when this case was appealed, the supreme court did not hear the privacy issue.102 instead, the court focused on “whether the secretary violated the enumeration clause of the constitution, the census act, or otherwise abused his discretion.”103 accordingly, it will be extremely difficult for a plaintiff to meet the injury in fact requirement when challenging the citizenship question based on an invasion of one’s right to privacy, absent direct evidence that the plaintiff was harmed by the census bureau unlawfully disclosing private census information to outside agencies. this will most likely never occur unless a government whistleblower intervenes, because plaintiffs will not be able to get into the discovery phase to find direct evidence of unlawful disclosures otherwise. 2. limited intrusiveness a standard level of intrusiveness is difficult to define because of its subjective nature. however, most census questions, all of which intrude to some degree upon an individual’s right to privacy, are seen by courts as reasonable in light of the 99 id. at 618–19. 100 id. 101 id. 102 dep’t of commerce v. new york, 139 s. ct. 2551, 2561 (2019). 103 id. 20 columbia journal of race and law [vol. 10:1 government’s need for that information.104 nevertheless, congress has outlawed questions specifically because they were over intrusive.105 one example of this is any question regarding religious beliefs.106 in 1960, the census bureau proposed including a question on the census regarding religion.107 immediately thereafter, a number of jewish organizations vehemently opposed the question, citing concerns regarding how nazi germany had used religious census information to locate jewish populations during the holocaust.108 to appease the public, congress quickly amended title 13 to prohibit the compelled disclosure of religious affiliations on the census.109 this begs the question of whether a question about citizenship status is as intrusive as a question about religious affiliation. like religious affiliation, the compelled disclosure of citizenship information raises associational, informational, and decisional privacy violations, which may result in harm if the government misuses the information. similar to the religious organizations that feared the government would misuse the census data, many immigrant communities also fear that citizenship data may be misused, however it remains to be seen whether congress will take action in this case. 104 morales v. daley, 116 f. supp. 2d 801, 818–20 (s.d. tex. 2000) (holding that questions like age, disability, race, and income on the long form census were reasonable in light of the fourth amendment right to privacy). 105 13 u.s.c. § 221(c) (2018) (providing that “no person shall be compelled to disclose information relative to his religious beliefs or to membership in a religious body.”). 106 id. 107 pixler, supra note 11, at 1104–05. 108 id. 109 13 u.s.c. § 221(c) (2018). no. 10:1] citizenship question and the 2020 census 21 3. strong statutory protections another argument courts have used to uphold the legality of a citizenship question is that the individual responses are statutorily assured to remain confidential.110 for example, title 13 provides a number of protections on private census data, including: (1) that private census data like names, addresses, social security numbers, and telephone numbers are never published; (2) that personally identifying information cannot be used by any government agency against census respondents; and (3) that census bureau employees are sworn to protect confidentiality and face up to five years in prison and a fine of up to $250,000 for violating confidentiality.111 while these protections are certainly robust, history has shown that the census bureau does not always abide by statutory rules.112 furthermore, congress can always repeal these protections. nonetheless, the strong statutory protections tend to favor the legality of the citizenship question. b. arguments against legality the failure of the census bureau to conduct a privacy impact assessment, the arbitrary and capricious nature of the decision to include a citizenship question, and an enumeration clause challenge precipitated by privacy concerns all weigh against the legality of the citizenship question. 110 new york v. u.s. dep’t of commerce, 351 f. supp. 3d 502, 618–19 (s.d.n.y. 2019). 111 title 13, u.s. code, united states census bureau, https://www.census.gov/history/www/reference/privacy_confidentiality/title_ 13_us_code.html [https://perma.cc/y4tv-rhln] (last visited mar. 24, 2019). 112 see epic v. commerce (census privacy), supra note 52. 22 columbia journal of race and law [vol. 10:1 1. failure to conduct a privacy impact assessment when any government agency initiates a new collection of information that includes individual specific data of ten or more people, it is required to conduct a privacy impact assessment (pia).113 the pia must discuss “why the information is being collected . . . how the information will be secured . . . with whom the information will be shared . . . [and] . . . what information is to be collected.”114 however, when the census bureau announced its intention to add the citizenship question in 2018, it had failed to conduct a pia.115 juan hourcade, a mem-ber of the census bureau’s scientific advisory committee, analogized the failure to conduct a pia to an unplanned space mission: “[i]t’s like you've been planning a space mission for 10 years and right before the mission you make a significant change to the spacecraft without testing it . . . maybe it won't crash, but you don't know. it's a big risk."116 while failing to conduct a pia would violate the egovernance act, the northern district of california held that the census bureau only needs to conduct the pia before it begins collecting citizenship data from the census in 2020.117 thus, while it may be a bad look for the census bureau to delay implementation of the privacy impact statement, the bureau will not violate the egovernance act unless it actually fails to conduct a pia.118 this means a violation of the e-governance act alone, until 2020, is 113 elec. privacy info. ctr. v. dep’t of commerce, no. 18-cv-2711, 2019 u.s. dist. lexis 20843, at *2–3 (d.d.c. feb. 8, 2019). 114 id. 115 id. at *1–2. 116 deanna paul, why the census citizenship question legal case matters, the morning call (nov. 20, 2018), https://www.mcall.com/news/pennsylvania/ mc-nws-census-citizenship-qa-20181120-story.html. 117 elec. privacy info. ctr. v. dep’t of commerce, 2019 u.s. dist. lexis 20843 at *24–26. 118 id. no. 10:1] citizenship question and the 2020 census 23 futile by itself, but it can be used in conjunction with the administrative record to show that the decision to include the citizenship question was arbitrary and capricious in violation of the apa.119 2. arbitrary and capricious decision in california v. ross, the northern district of california held that the decision to include the citizenship question was arbitrary and capricious in violation of the apa.120 the court found that secretary ross initiated the contact with the doj and directed the doj to formally ask the census bureau to add a citizenship question.121 the court referred to the doj request for citizenship data to help enforce the voting rights acts as “ostensible” at best.122 furthermore, evidence was discovered showing that census bureau professionals found “that inclusion of a citizenship question would likely result in a significant differential decline in self-response rates within noncitizen and latino communities and that the requested data could be obtained by other means.”123 therefore, the court found that secretary ross’s reliance on the voting rights act (“vra”) to justify the addition of the citizenship question was not only unfounded but also arbitrary and capricious in violation of the apa, and ordered an injunction against the addition of the question.124 the supreme court later heard a similar case regarding the citizenship question in department of commerce v. new 119 california v. ross, no. 18-cv-01865-rs, 2019 u.s. dist. lexis 36230, at *10–17 (n.d. cal. mar. 6, 2019). 120 id. at *11 (stating that courts cannot look at post hoc rationalizations for agency actions when determining if the action was arbitrary and capricious). 121 id. 122 id. 123 id. at *11–12. 124 id. at *12–13. 24 columbia journal of race and law [vol. 10:1 york.125 in this case, the supreme court enjoined the reintroduction of the citizenship question, holding that the commerce department acted pretextually in an arbitrary and capricious manner in violation of the apa.126 the court determined that: evidence showed that the secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the attorney general himself to ask if doj would make the request; and adopted the voting rights act rationale late in the process.127 this led the court to find that there was “a significant mismatch between the decision the secretary made and the rationale he provided,” mainly that the citizenship data would be used to enforce the vra.128 the court further stated that the vra rationale appears “to have been contrived.”129 thus, the court enjoined the citizenship question and remanded the case back to the agency.130 while this does not mean the citizenship question is unconstitutional per se, it does show the vra rationale was pretextual in violation of the apa. and, the pretextual violation tends to heighten the privacy concerns of many immigrants and non-citizens because it shows the government did not have a valid reason for trying to reintroduce the citizenship question. 125 see dep’t of commerce v. new york, 139 s. ct. 2551 (2019). 126 id. at 2574–2576. 127 id. at 2574. 128 id. at 2575. 129 id. 130 id. at 2576. no. 10:1] citizenship question and the 2020 census 25 3. enumeration clause challenge the enumeration clause in the constitution requires that all people residing in the united states be counted every ten years131, and broad discretion is given to the commerce secretary to decide what questions are on each census.132 “however, if the secretary's decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable enumeration clause challenge.”133 here, the citizenship question has been predicted by professional members of the census bureau to reduce response rates within non-citizen and latino communities because of privacy concerns over citizenship data.134 the decreased response rates could lead to an inaccurate census, which is “contrary to the constitution.”135 in department of commerce v. new york, the supreme court declined to enjoin the reintroduction of the citizenship question on the basis of an enumeration clause challenge.136 the court stated that congress has great discretion over the form of the census, and congress has delegated this authority to the department of commerce.137 the court then used a historical argument positing that the census has long been used “for more than simply counting the population.”138 for example, the census has been used to create statistics about race, sex, national origin, 131 u.s. const. art. i, § 2, cl. 3. 132 california v. ross, no. 18-cv-01865-rs, 2019 u.s. dist. lexis 36230, at *14 (n.d. cal. mar. 6, 2019). 133 id. (holding that the citizenship question violated the enumeration clause). 134 id. at *11–12. 135 id. at *15. 136 dep’t of commerce v. new york, 139 s. ct. 2551, 2566 (2019) (“the enumeration clause of the constitution does not provide a basis to set aside the secretary’s decision.”). 137 id. 138 id. at 2567. 26 columbia journal of race and law [vol. 10:1 and even the value of real estate.139 furthermore, a citizenship question has been asked on a census in some form since 1820.140 and, because “[t]hat history matters,” the court held that the enumeration clause does not prohibit the commerce secretary from asking about citizenship on the national census.141 nonetheless, an enumeration clause challenge may be successful in the future if it can be shown that a large percentage of the population will fail to respond to the census. in the department of commerce case, the supreme court relied on the district court finding that approximately 5.8 percent of noncitizen households would be undercounted if the citizenship question was reintroduced.142 while this percentage was sufficient to garner article iii standing143, it was not sufficient to contravene the enumeration clause.144 however, after the pretextual reasoning of the commerce department was uncovered, if the citizenship question is somehow placed on the census, it is likely that many more noncitizen households will fail to respond because of privacy concerns. the question is whether this increase would be enough for the courts to uphold an enumeration clause challenge. furthermore, the supreme court has found that the apportionment clause of article i, section 2, of the u.s. constitution requires “one man’s vote in congressional elections . . . to be worth as much an another’s.”145 however, a citizenship question could impact the accuracy of the census by undercounting the total number of people in each congressional district. because the 139 id. 140 id. 141 id. 142 id. at 2565. 143 id. 144 id. at 2567. 145 see wesberry v. sanders, 376 u.s. 1, 7-8 (1964); see also karcher v. daggert, 462 u.s. 725, 744 (1983) (holding that deviations in congressional districts must be “functionally equal as a matter of law” and “a good-faith effort to achieve population equality using the best available census data.”). no. 10:1] citizenship question and the 2020 census 27 census is used to help create congressional districts, an inaccurate census could create congressional districts within a state that have nonuniform populations. this is a direct result of the privacy concerns of individuals residing in the united states and it could cause the population size of congressional districts to vary, potentially running afoul of the fourteenth amendment.146 while the supreme court did not consider this in its enumeration clause analysis, this argument by itself, as well as coupled with the enumeration clause argument, could prove successful in the future. v. potential solutions regardless of one’s views on the citizenship question, the reintroduction of this question creates privacy violations which could indirectly harm all people living in the united states. the best solution from a privacy standpoint would be to prevent the government from collecting any citizenship data whatsoever. however, this is likely impractical. nonetheless, there are a number of corrective actions that can be taken to help alleviate the privacy concerns while still allowing the government to have the citizenship data it desires. a. non-mandatory citizenship question one novel solution to the citizenship question dilemma would be to make this question non-mandatory. on the surface, this would alleviate many privacy law concerns because respondents would no longer be required by law to answer this question. how-ever, not answering the question could serve as a de facto “yes” answer to non-citizenship because the census bureau could infer that respondents who fail to answer the citizenship question are noncitizens. thus, many of the same primary and secondary harms are 146 wesberry, 376 u.s. at 6; karcher, 462 u.s. at 746-47. 28 columbia journal of race and law [vol. 10:1 prevalent since the government may still acquire citizenship information through de facto answers. furthermore, the census bureau has conducted studies that show non-mandatory census questions actually reduce the response rates even further than mandatory census questions.147 therefore, of the three solutions, this would be the least effective because it may further depress response rates and it is only a quasi-solution to the privacy problem. b. keeping the citizenship question only on the acs the acs is sent out yearly to approximately 2.6 percent of american households and has contained the citizenship question since 2005.148 keeping the citizenship question only on the acs, and removing it from the national census, maintains the status quo. also, it is likely the least intrusive privacy invasion the census bureau would cause while still gathering citizenship information through a census. simple mathematics shows that the potential primary privacy harms stemming from a citizenship question on the acs are 97 percent lower than the potential primary privacy harms stemming from a national census because only a small portion of households receive the acs.149 however, there are still problems with this solution. first, the privacy violations and potential primary harm described in section iii are still prevalent, even after implementation of this solution. while the total amount of the potential harms is greatly reduced, for those households that receive the acs, the primary harm of governmental misuse of private citizenship data 147 mandatory v. non-mandatory methods, united states census bureau, https://www.census.gov/programs-surveys/acs/methodology/mandatoryvoluntary-methods.html (last visited mar. 26, 2019). 148 american community survey information guide 3 (united states census bureau, oct. 2017), https://www.census.gov/content/dam/census/programssurveys/acs/about/acs_information_guide.pdf. 149 id. no. 10:1] citizenship question and the 2020 census 29 is still concerning. thus, while this solution minimizes the total harm, it does not eliminate it. second, the secondary harm to all residents is still prevalent. the acs is used, just like the national census, to create statistics about communities in america.150 if a significant portion of households fail to respond to the acs because of privacy concerns, the data will be incorrect. this incorrect data would then harm all residents in the same manner as an incorrect census would—decreased funding and insufficient national disaster relief. thus, while this solution minimizes the potential privacy harms, it does not solve the bigger problem. c. use of federal administrative records to collect citizenship data the best solution for maintaining the integrity of private citizenship information, while still allowing the government to collect citizenship data, is for the census bureau to remove the citizenship question from all censuses and instead use federal administrative records to collect citizenship data. in fact, this option was strongly considered, and in fact recommended, by the census bureau.151 instead, the commerce secretary opted to reintroduce the citizenship question, claiming there was insufficient data from government administrative records on more than ten percent of the population.152 over time, however, that percentage will decrease and with modern statistical models the potential error rate can be mitigated. furthermore, by using information the govern-ment already 150 id. at 2. 151 dep’t of commerce v. new york, 139 s. ct. 2551, 2563 (2019) (“option three was to use administrative records from other agencies, such as the social security administration and citizenship and immigration services, to provide doj with citizenship data. the census bureau recommended this option. . . .”). 152 id. (“but the secretary concluded that administrative records alone were inadequate because they were missing for more than 10% of the popu-lation.”). 30 columbia journal of race and law [vol. 10:1 possesses, the national census would not create new privacy violations and subsequent harms stemming from the citizenship question. this technique has already proven to be successful for a number of european countries, and these countries have stopped using survey questionnaires entirely.153 for example, iceland creates real time population reports by compiling government electronic databases such as birth registries, death registries, and so on.154 instead of a decennial population report, which is only a snapshot in time, countries like iceland can create population statistic reports using real time data.155 furthermore, according to united nations statistical authorities, this type of data compilation system is significantly more accurate than traditional surveys because hard to reach communities, like immigrants and the homeless, can be measured using information from social services, immigration control, and employment records.156 thus, the best practical solution to the citizenship question would be implementing a central database overseen by the census bureau for the collection of citizenship information from data the federal government already possesses through databases from medicaid, medicare, immigration services, social security, and so on. this would eliminate the privacy violations created by the addition of a citizenship question and would also remove all secondary harms. furthermore, it would save the federal government millions of dollars.157 president trump has also recently 153 alex johnson & shereen bhan, new ways of counting leave u.s. census behind, nbc news (mar. 9, 2010), http://www.nbcnews.com/id/36195593/ ns/world_news/t/new-ways-counting-leave-us-censusbehind/#.xjqpeyhkjiv. 154 id. 155 id. 156 id. 157 this should be the final answer to the census question, wash. post (jan. 21, 2019), https://www.washingtonpost.com/opinions/this-should-be-the-nalanswer-to-the-census-question/2019/01/21/c552b9d6-19df-11e9-9ebfc5fed1b7a081_story.html?utm_term=.e7b14ee60c46. no. 10:1] citizenship question and the 2020 census 31 begun to support this solution. after the supreme court enjoined the citizenship question and remanded it back to the agency, president trump declared that his administration would no longer seek to include the citizenship question on the 2020 national census.158 instead, president trump stated that he would use federal databases to compile citizenship information.159 however, this solution is not a panacea for privacy issues because there are privacy concerns regarding a government database including, but not limited to, data security breaches, improper data use, and improper sharing of data between government agencies. nonetheless, this is the best solution, assuming the government has a valid reason for needing the citizenship information, because the government is not creating additional privacy violations by aggregating information it already possesses. thus, this solution would allow the census bureau to efficiently and effectively use information already collected by the government. furthermore, title 13 would still apply and would provide strong statutory protections upholding confidentiality and preventing governmental misuse of the data. this would eradicate the privacy violations inherent in the citizenship census question and, with the proper procedural safeguards in place protecting the central database, the census bureau could use infor-mation already in the government’s control to create citizenship statistics instead of creating additional harms through the mandatory census. vi. conclusion the privacy violations caused by the citizenship question on the national census may create primary harm to non-citizen 158 amy howe, trump administration ends effort to include citizenship question on 2020 census, scotusblog (july 11, 2019), https://www.scotus blog.com/2019/07/trump-administration-ends-effort-to-include-citizenship question-on-2020-census. 159 jeff mason & david shepardson, trump drops census citizenship question, vows to get data from government, reuters (july 11, 2019), https://www.reuters.com/article/us-usa-census/trump-drops-censuscitizenship-question-vows-to-get-data-from-government-iduskcn1u61d9. 32 columbia journal of race and law [vol. 10:1 respondents as well as secondary harm to all residents of the united states. while the fourth amendment right to privacy is unlikely to defeat the citizenship question directly, the supreme court has recently enjoined the reintroduction of the citizenship question by holding that the rationale behind reintroducing the question— enforcing the vra—was pretextual and violated the apa. nonetheless, the best solution to alleviate these privacy concerns, as well as to assuage the apa violation, would be to create a central database within the census bureau that can access citizenship information from administrative records already in the government’s control. this would prevent privacy violations from the reintroduction of the citizenship question on the census, limit potential privacy harms, create a more accurate census, and save the government millions of dollars. i. introduction ii. the history of the citizenship question in the national census a. pre-2017 history of the citizenship question b. reintroduction of the citizenship question iii. privacy law issues a. potential privacy violations b. potential privacy harms 1. primary harms 2. secondary harms i. incorrect reapportionment ii. decreased federal funding iii. insufficient national disaster relief and epidemic preparedness iv. legality of the citizenship question in light of privacy law concerns a. arguments for legality 1. precedent and lack of standing 2. limited intrusiveness 3. strong statutory protections b. arguments against legality 1. failure to conduct a privacy impact assessment 2. arbitrary and capricious decision 3. enumeration clause challenge v. potential solutions a. non-mandatory citizenship question b. keeping the citizenship question only on the acs c. use of federal administrative records to collect citizenship data vi. conclusion columbia journal of race and law vol. 11 july 2021 no. 3 article political-economic roots of coercion—slavery, neoliberalism, and the racial family policy logic of child and social welfare gwendoline m. alphonso* the article argues that at the core of the american neoliberal policy regime, of which child welfare is a critical part, lies an enduring raced family policy logic of two racially stratified standards: a punitive black economic utility family standard and a supportive white domestic affection family standard, whose policy roots and practices trace back to slavery in the antebellum south. historically and contemporaneously, state regulation of poor black families has been shaped by, and in turn perpetuates, the black economic utility standard that normalizes and places political value above all else on the promotion of labor by black mothers outside of their homes in service of a racially-discriminatory market order. by doing so, the state devalues the affective, nurturing labor that black mothers perform within their households and towards their children. long followed in southern local policy practices and led by the efforts of congressmen from the south, the black economic utility standard is shown to have been formalized nationally within the neoliberal policy regime through a repurposing of overtly racial ideas into * gwendoline m. alphonso (ph.d., j.s.d., b.c.l. (oxon.)) is associate professor in the department of politics at fairfield university. she is the author of polarized families, polarized parties: contesting values and economics in american politics (univ. of pennsylvania press, 2018). her work on family in american politics and legal history has been published in several edited volumes and academic journals, including studies in american political development, polity, journal of policy history, and the journal of southern legal history. 472 colum. j. race & l. [vol. 11:471 behavioral values of work and self-sufficiency that are enshrined in social and child welfare reforms. the article suggests that the deployment of the black economic utility standard by the neoliberal policy regime pathologizes poor black women’s childbearing and motherhood as economically irresponsible, obscures centuries-long structural inequalities and racial family coercion, and serves to perpetuate and justify black family disruptions in colorblind ways. 2021] political-economic roots of coercion 473 i. introduction ............................................................................. 474 ii. economic utility and black families during slavery ........ 479 a. legal and ideological foundations of black family utility ........................................................................... 479 b. state practices of black family fragmentation & coercion ........................................................................ 484 iii. black family economic utility in neoliberal workfare and child welfare policy ................................................... 486 a. racial family foundations of public assistance & child welfare ............................................................... 487 b. economic pathologizing of non-marital black mothers and neoliberal policy reforms .................... 491 iv. conclusion ............................................................................. 498 474 colum. j. race & l. [vol. 11:471 i. introduction empirical research has amply documented the institutionalization of racial disproportionality and disparity in the child welfare system, as well as the disproportionate harm experienced by black1 children, families, and communities as a consequence of the system’s practices.2 the modern child welfare system’s disruption, over-surveillance, and criminalization of the black family has been embraced by the united states since the 1980s and is linked to the rise of neoliberalism—the political ideology that elevates free markets as critical to human wellbeing, characterized by private property rights, entrepreneurism, and free trade. 3 as a policy regime, 4 the neoliberal american state has been critiqued for the many unique ways in which it overly penalizes and coerces black and brown populations, produces racial marginality, and exercises a “racial authoritarianism” that has starkly limited the civic belonging of african americans, in particular, after a period of democratic inclusion in the 1960s.5 1 the article uses the term “black” as a heuristic device to denote african americans as a specific racially-constructed group, whose members share an identifiable historical past and ongoing common experience. in contrast “white” is treated as a looser racial category and so uncapitalized. 2 for a representative summary of this literature, see aland j. dettlaff et al., it is not a broken system, it is a system that needs to be broken: the upend movement to abolish the child welfare system, 14 j. pub. child welfare 500, 501–04 (2020) (discussing how the child welfare system disproportionately harms black children and families). 3 david harvey, a brief history of neoliberalism 2 (2007). 4 policy regimes are specific governing arrangements designed to address policy problems, made up of three mutually-constitutive elements: ideas, institutional arrangements, and interests. see peter j. may & ashley e. jochim, policy regime perspectives: policies, politics, and governing, 41 pol’y studs. j. 426, 428 (2013). 5 on the neoliberal state’s melding of penal sanction and welfare supervision into a cohesive mechanism for behavioral control of marginal, raced populations, see loic wacquant, punishing the poor: the neoliberal government of social insecurity (2009) (analyzing the strong link between neoliberal penal policies and neoliberal social policies toward marginal communities). see also joe soss, richard c. fording & sanford f. schram, disciplining the poor: neoliberal paternalism and the persistent power of race (2011) (analyzing the ways in which governments achieve the cooperation and contributions of marginal populations in politically viable ways). on the linkage of child welfare to prisonfare, welfare retrenchment, and rise of workfare in the late twentieth century, see dorothy e. roberts, complicating the triangle of race, class and state: the insights of black feminists, 37 ethnic & racial studs. 1776 (2014) [hereinafter roberts, 2021] political-economic roots of coercion 475 black child welfare has followed a similar historical trajectory. the proportion of black children in public child protection caseloads increased after world war ii as the system moved away from open segregation and outright exclusion of black people. however, it was also only in the late 1980s when both the total size of the foster care population and the share of black children within it exploded, marking the durable shift that dorothy roberts seminally described in shattered bonds as one that “cement[ed] the child welfare system’s current relationship to black americans.”6 in later work, roberts expressly placed the current system of child welfare within the larger political project of neoliberalism and highlighted the cumulative neoliberal reconfiguring of welfare, child welfare, and prison fare policies as commonly stigmatizing poor black mothers and effecting their “systemic punishment” by “attributing social inequality to black women’s childbearing.”7 in addition to racial bias as a cause for the disproportionate removal of black children from their homes, roberts has stressed the significance of political choices in public policy that approach the pressing social problem of (black) “child poverty by investigating [and blaming] parents,” specifically black mothers, rather than “tackling poverty’s structural roots.”8 this article furthers roberts’s critical political framework and offers a new conceptual framework focused on family-centered policy logics that i use to explain why and how the american state came to choose its current, punitive, child welfare approach that normalizes the widespread removal of black children from their homes despite claims of colorblindness. more specifically, the article argues that at the core of the american neoliberal policy regime, of which child welfare is a complicating the triangle] (adding a focus on gender and experiences of black women to wacquant’s triangle of race, class, and state); derek kirton, neoliberalism, ‘race’ and child welfare, 6 critical & radical soc. work 311 (2018) (analyzing the significance of race and ethnicity in the relationship between neoliberalism and child welfare in the u.k.). on “racial authoritarianism” as a recurrent pattern in us democracy after periods of democratic expansion, see vesla m. weaver & gwen prowse, racial authoritarianism in u.s. democracy, 369 science 1176 (2020) (discussing the centrality of racial authoritarianism to american citizenship and governance in the 20th and early 21st centuries) 6 dorothy e. roberts, shattered bonds: the color of child welfare 8 (2002). 7 roberts, complicating the triangle, supra note 5, at 1776. 8 dorothy e. roberts, child protection as surveillance of african american families, 36 j. soc. welfare & fam. l. 426, 428 (2014). 476 colum. j. race & l. [vol. 11:471 critical part, lies an enduring raced family policy logic that has long permeated how black and white families are disparately viewed (and treated) in public policy. the neoliberal policy logic of family is made up of two racially stratified standards: a punitive black economic utility family standard and a supportive white domestic affection family standard, whose policy roots and practices trace back to slavery in the antebellum south. in previous work, i have shown how this bifurcated family policy logic was developed by the antebellum southern state for black and white families.9 through the construction of racial family policy standards, southern courts and legislatures engaged in the political project of thwarting abolitionist attacks by upholding racial slavery as a legitimate form of market liberalism and liberal democracy and elevating the white patriarchal family as the bulwark of white social and political hegemony.10 as discussed in this article, historically and contemporaneously, state regulation of poor black families is shaped by—and in turn perpetuates—the black economic utility standard, which normalizes and places political value, above all else, on the promotion of labor by black parents—particularly black mothers—outside of their homes in service of a prevailing and racially discriminatory market order.11 by doing so, the state devalues the affective, nurturing labor that black mothers perform within their own households and towards their own children.12 long followed in southern local policy practices and 9 gwendoline m. alphonso, naturalizing affection, securing property: family, slavery, and the courts in antebellum south carolina, 1830–1860, studs. am. pol. dev. (forthcoming 2021) [hereinafter alphonso, naturalizing affection]. 10 id. 11 the article focuses on black mothers (to the exclusion of black fathers) insofar as enslaved black mothers were central to the legal and ideological formulation of black economic utility as a family standard in the antebellum period. additionally, the historical focus on black mothers in the policy treatment of black families as demonstrated here, highlights the centrality of race and gender as intersectional sites in the construction of racial subordination and, arguably, challenges the contemporary political discursive focus on endangered black males as pivotal to black family vulnerability. on the intersectional vulnerabilities of black women as obscured by the discourse of endangered black males, see kimberlé w. crenshaw, from private violence to mass incarceration: the intersectionality of women, race, and social control, 59 ucla l. rev. 1418, 1432, 1467–70 (2021). 12 dorothy roberts alluded to a related logic when pointing to the racialized division of domestic labor into “spiritual” work expected by white women within their own homes and “menial” housework expected from black 2021] political-economic roots of coercion 477 led by the efforts of congressmen from the south, the black economic utility standard has been formalized at the national level within the neoliberal policy regime through a repurposing of overtly racial ideas into behavioral values of work and selfsufficiency that are enshrined in social and child welfare reforms. as a consequence of these policy reforms, poor black mothers receive even less cash assistance than before and are increasingly, and with greater impunity, subjected to racial bias and disparate state intervention and sanctions. in turn, the discriminatory treatment of black mothers significantly increases the risk of black children’s poverty, prompting increased assessments of their maltreatment, surveillance, and family removals. the deployment of the black economic utility standard by the neoliberal policy regime pathologizes poor black women’s childbearing and motherhood as economically irresponsible in addition to being morally transgressive, obscuring centuries-long structural inequalities and justifying black family disruptions in colorblind ways. the following narrative will first discuss the southern political-economic origins of racial family policy logic, in particular the coercive black economic utility family standard, as developed by the antebellum slave state to apply to enslaved black mothers. second, it will demonstrate how and in what ways this standard informed the discriminatory policy treatment of black mothers and their families throughout the twentieth century. in so doing, this section identifies and describes the political and economic conditions under which this raced family standard came to be formalized and upheld by the neoliberal welfare and child welfare policy reforms of the 1990s. by identifying the southern political-economic roots of black mother-family labor coercion, highlighting its foundations in slavery and its intensifying pernicious effects on poor black families under the neoliberal policy regime, this article female domestic workers, whose “spiritual” labor in their own households was consistently devalued by social policies designed to coerce black women into performing menial household labor for others. dorothy roberts, welfare’s ban on poor motherhood, in whose welfare? 158, 158–63 (gwendolyn mink ed., 1997). for a comprehensive history of coercion of black women to supply cheap labor in service of white economic interests and racially stratified economic orders, see jacqueline jones, labor of love, labor of sorrow: black women, work, and the family from slavery to the present (1985) (discussing the history of the commodification of black women’s labor in service of white economic interests). 478 colum. j. race & l. [vol. 11:471 highlights the urgent need for systemic reckoning and overhaul, underscoring calls to refocus policy attention away from punitive to redistributive social policies. much has been written on racial family policy frames such as “welfare queen” single mothers and “deadbeat” fathers— racially-coded dog whistles that include stigmatizing black childbearing and sexuality—and the embrace of racial family imagery in twentieth-century neoliberal political ideology.13 missed in much of this discussion, however, is the enduring institutional significance of family, as a deliberate political racial institution constructed and maintained by the state, that perpetuates racial disparities and subordinates black citizenship.14 it is not only in the direct pathologizing of poor, black mothers and families that the neoliberal state produces black marginality, but also, more indirectly, in the kinds of racially disparate family coercions and discriminatory logics of motherhood and child wellbeing that the state normalizes and pursues through policies. several groundbreaking works identify deliberate political linkages between race, class, and civic marginality in 13 on racial policy frames, see dorothy e. roberts, killing the black body: race, reproduction and the meaning of liberty 15–21 (1997) [hereinafter roberts, killing the black body] (discussing the pervasive stereotypes of the “unwed black mother,” the “welfare queen,” and the black child “incapable of contributing anything to society”). see also wacquant, supra note 5, at 50. see generally deborah e. ward, the white welfare state: the racialization of us welfare policy (2005) (analyzing how the institutionalization of race influenced and defined the american welfare system at the national level); kenneth j. neubeck & noel a. cazenave, welfare racism: playing the race card against america’s poor (2001) (defining welfare racism and its effects on all poverty-stricken families). on “dog whistle politics,” see ian haney lópez, dog whistle politics: how coded racial appeals have reinvented racism and wrecked the middle class (2014) (defining racial dog whistles as coded racial talk that is inaudible and easily denied on the one hand, and the cause of strong reactions on the other hand). on racial family-based assumptions in neoliberalism, see tamara metz, obergefell, marriage, and the neoliberal politics of care, in stating the family: new directions in the study of american politics 45–71 (julie novkov & carol nackenoff eds., 2020) (arguing that the institution of marriage has obscured the consequences of the welfare state). 14 as a notable exception to the overall overlook of family, see patricia hill collins, it’s all in the family: intersections of gender, race, and nation, 13 hypatia 62 (1998) (arguing that the traditional family acts as an exemplar of intersectionality in the united states). 2021] political-economic roots of coercion 479 neoliberal discourse and policy,15 and dorothy roberts has significantly expanded this framework to include gender within that three-fold nexus.16 yet, the political construction and significance of family as an enduring prism that absorbs and converges multiple dimensions of coercion in the “matrix of oppression” of black and brown americans is largely overlooked.17 it is to this theoretical end that i direct this article. ii. economic utility and black families during slavery a. legal and ideological foundations of black family utility in the antebellum south, the enslavement of black people was upheld not as a pre-modern system of labor but as a form of modern market liberalism.18 in contrast to the revolutionary era when racial slavery was accommodated as a necessary evil, from the 1830s through the civil war, it was defended as a positive good—as a legitimate property regime integral to a white male’s right to accumulate property for the care and provision of his family. south carolinian slaveholder edmund bellinger speaking in defense of slavery in 1835 gave voice to the prevailing southern view, stating: [n]egro slavery . . . is our property, like other property, bequeathed to us by our parents, or earned by the sweat or our brow—by the hard efforts of honest industry . . . no authority on earth has the right, nor . . . the power, to strip us of that property or to crush the hope that we will be enabled to leave some small pittance to our children.19 in the three decades before the civil war, the goal of providing for one’s children came to be viewed as part of natural 15 wacquant, supra note 5; soss, fording & schram, supra note 5. 16 roberts, complicating the triangle of race, supra note 5. 17 on “matrix of domination,” see patricia hill collins, black feminist thought: knowledge, consciousness, and the politics of empowerment (2d ed. 2010) (referring to the organized intersection of oppression and its effects on black women in particular). 18 slavery’s capitalism: a new history of american economic development (sven beckert & seth rockman eds., 2016) (arguing that american slavery was part of the national capitalist system and its evolution). 19 edmund bellinger, a speech on the subject of slavery 14 (1835). 480 colum. j. race & l. [vol. 11:471 paternal feeling, a form of domestic affection that was increasingly valued within the emerging family ideology of “domesticity” for white families.20 when deciding family cases involving diverse subjects such as gifts, inheritance, wills, estates, alimony, property, and contracts, antebellum southern courts constructed a new family standard to characterize and assess white family relations, centered on establishing affection as a natural norm practiced by white male slaveowners in their roles as fathers, husbands, and especially masters. in so doing the courts invoked the ideal of domestic affection to uphold the statutory regime of racial slavery as a benign, paternalist, familial system, elevating the white patriarchal family as deserving of special legal protections whilst condoning the brutality of the system by assembling the legal fiction of masterly, paternal affection towards enslaved workers. in this way, courts and legislatures engaged in the deliberate political project of constructing the southern market order of racial human enslavement as a benign, familial enterprise in contrast to the abolitionist rendering of slavery as a brutal, inhumane system.21 at the core of the legal regime of racial slavery lay the construction of black economic utility: the commodification and quantification of the market value of an enslaved black person. commodification of human beings into quantifiable economic value or price—what historian walter johnson has seminally called the “chattel principle”—was the very being of slavery.22 for the enslaved, their economic value was inextricably tied to their bodies and their labor, which had distinct racial and gendered implications in the case of black women. unlike white 20 on the rise of affection-based domesticity in nineteenth-century united states, see stephanie coontz, marriage, a history: from obedience to intimacy or how love conquered marriage 164–65 (2005). 21 alphonso, naturalizing affection, supra note 9. see also lacy ford, deliver us from evil: the slavery question in the old south (2009). 22 walter johnson, soul by soul: life inside the antebellum slave market 19 (1999) (quoting j.w.c. pennington, the fugitive blacksmith: or events in the life of james w.c. pennington iv–vii (1849)). for an excellent example of the emerging new economic history of american slavery that incorporates the voices of enslaved people to detail the commodification of enslaved people through every phase of their lives, see diana ramey berry, the price of their pound of flesh: the value of the enslaved, from womb to grave, in the building of a nation (2017) (demonstrating, through the perspective of enslaved persons, how commodification touched every aspect of an enslaved person’s life). 2021] political-economic roots of coercion 481 women, whose child-rearing and contributions within their households were seen as integral to the reproduction of republican virtue and civic wellbeing,23 black women, free or enslaved, were only valued by the state for their economic productivity outside of their households. in colonial virginia for instance, black women were legally defined as “tithable” (taxable) labor. whereas white women laborers were exempt from taxes, “the tax on an african woman had to be paid by her master (if she was a slave or servant), by her husband (if she was free and married), or by herself (if she was [free and] single).”24 the law thus placed a public economic value on the labor of black women alone, burdening only free black households with levies on wives and daughters that impeded them from advancing economically and/or purchasing the freedom of loved ones. the standard of black economic utility was also, fundamentally, a family standard that centered on the body of the enslaved black woman, whose reproductive labor was ascribed with distinctive economic value.25 the practiced legal doctrine of partus sequitur ventrem (the legal status of the offspring, as free or enslaved, follows the condition of the mother) rendered enslaved black childbearing as a source of wealth 23 linda k. kerber, the republican mother: women and the enlightenment-an american perspective, 28 am. q. 187 (1976) (arguing that the republican mother in american culture defined how women might influence civic culture and the state). 24 tera w. hunter, bound in wedlock: slave and free black marriage in the nineteenth century 9 (2017). 25 enslaved women’s financial value increased during childbearing years. see diana ramey berry, “we’m fus’ rate bargain”: value, labor, and price in a georgia slave community, in the chattel principle: internal slave trades in the americas, 1808–1888, at 55–71 (walter johnson ed., 2004) (demonstrating that enslaved women understood the monetary value assigned to their reproductivity and used this knowledge to negotiate their sale in order to maintain family ties). on enslaved women’s reproductive labor and its centrality within atlantic slavery, see jennifer l. morgan, laboring women: reproduction and gender in new world slavery (2004) (using the commodification of enslaved women’s reproductive identities as the operative framework for comparing slavery in the caribbean and in the american south); jennifer l. morgan, partus sequitur ventrem: law, race, and reproduction in colonial slavery, 22 small axe 1 (2018) (arguing that american slavery relied on a reproductive logic inseparable from race). more generally, on the social value of enslaved women wholly in terms of productive and reproductive labor for their enslavers, and their attempt to subvert that dictum upon emancipation, see tera hunter, to ’joy my freedom 2–3 (1997); jones, supra note 12, at 4, 13–29. 482 colum. j. race & l. [vol. 11:471 generation, commodifying enslaved children and divesting them of their humanity and familial belonging. courts were apt to observe that, “our law . . . which declares that the issue shall follow the condition of the mother . . . applies to the young of slaves, because as objects of property, they stand on the same footing as other animals, which are assets to be administered . . . by the owner.”26 black affective and physical familial bonds between enslaved children and their mothers were viewed wholly in terms of how much or little these bonds enhanced their productive and economic value for the benefit of their enslaver. as opined by a south carolina court of equity, “the issue of a female slave would often be valueless but for her exertions and sufferings, all of which are at the risk of her master or owner.” it was the master who was held to have “incur[red] the risk” and was thus “reasonably entitled to the gain” in terms of the value and labor of the enslaved black child.27 the black economic utility standard steadily rose to preeminence in the three decades leading up to the civil war in 1861. through a variety of commercial, accounting, and management techniques increasingly devised and sanctioned by law—such as using enslaved people as collateral for mortgages, as speculative futures, as the means for credit, or as payment of debt—the commodification of black personhood into economic value progressed with increasing sophistication.28 the cotton boom of the nineteenth century resulted in a 10,000% increase in cotton, propelling the united states to the top of the international market and generating an ever-increasing demand for enslaved labor in the industrializing cotton south.29 given 26 m’vaughters v. elder, 4 s.c.l. (2 brev.) 307 (1809). 27 gayle v. cunningham, 5 s.c. eq. (harp. eq.) 124, 128 (1824). 28 bonnie martin, neighbor-to-neighbor capitalism: local credit networks and the mortgaging of slaves, in slavery’s capitalism, supra note 18, at 107 (using neighbor-to-neighbor trade in slaves to illustrate slavery as a financial project of ordinary people); joshua rothman, the contours of cotton capitalism: speculation, slavery, and economic panic in mississippi, 1832– 1841, in slavery’s capitalism, supra note 18, at 122 (arguing that slaves and slavery were both laborers and assets for a growing cotton capitalism); and kathryn boodry, august belmont and the world the slaves made, in slavery’s capitalism, supra note 18, at 163 (arguing that the most important financial transactions in the history of slavery involved the transatlantic marketing of agricultural commodities produced by enslaved people under violent coercion). 29 edward e. baptist, toward a political economy of slave labor: hands, whipping-machines, and modern power, in slavery’s capitalism, supra note 18, at 31, 40–41. 2021] political-economic roots of coercion 483 that the transatlantic slave trade was abolished in 1808, this meant that the very vitality and propagation of racial slavery rested on natural, encouraged, or coerced reproduction by black enslaved women within america. in the antebellum period, “breeding” of enslaved women came to be viewed as a practice with the express purpose of wealth creation and profit. speaking before the virginia legislature in 1831, state representative james gholson emphatically defended the practice of breeding for profit, stating that the “value of [breeding] property justifies the expense.”30 he continued, “i do not hesitate to say that in its increase consists much of our wealth.”31 by the 1830s, the purchase of a “breeding” enslaved woman implied economic investment that could potentially amplify over time.32 a black enslaved woman’s monetary value increasingly came to be linked to her fertility, and traders, buyers, and sellers alike would make projections based on a woman’s “increase,” the same term they used for flocks and herds.33 the policy standard of black economic utility legitimized and upheld coercion at the most intimate level, accommodating practices such as forced copulation and wet-nursing as well as widespread sexual exploitation of enslaved women by their enslavers.34 it was during the antebellum period of slavery’s capitalization that reproduction, sexual intercourse, childbearing and child nurturing, fundamental aspects of intimate family behavior constructed as inherently personal, affection-based, and familial in the context of white families, began to be seen by state policy wholly in terms of economic value in the case of enslaved black people.35 30 berry, supra note 22, at 11. 31 id. (emphasis added) (original emphasis omitted). 32 id. at 19. 33 id. at 11–12. 34 id. at 78–83. for wide-ranging discussions on the rhetoric, experiences, memories, and contested historiography on the topic, see gregory d. smithers, slave breeding: sex, violence, and memory in african american history (2012). see also ned sublette & constance sublette, the american slave coast—a history of the slave-breeding industry (2016). on coerced wet-nursing, see emily west & r.j. knight, mothers’ milk: slavery, wet-nursing, and black and white women in the antebellum south, 83 j.s. hist. 37 (2017). 35 stephanie e. jones-rogers, they were her property: white women as slave owners in the american south 20–21 (2019). for differences in the financial valuation of “breeding” women in the antebellum 484 colum. j. race & l. [vol. 11:471 b. state practices of black family fragmentation & coercion using the black economic utility standard, antebellum courts and legislatures upheld widespread fragmentation of black families. in the decades before the civil war, slave traders made two-thirds of a million interstate sales, of which twentyfive percent involved the destruction of a marriage and fifty percent destroyed a nuclear black family—many of these separating children under the age of thirteen from their parents.36 whether executing estates, disbursing inheritances, or in recuperating debts, creditors, executors, and public officials were required to break apart enslaved families as necessary in light of the fact that “slaves sell best singly,” and officials who failed to act in this way were often held personally liable for failing their clients.37 similarly, in deciding bequests of enslaved women, courts were steadfast in upholding the principle that, unless specified by the testator, “a child does not pass under the bequest of the mother,”38 not sparing even enslaved infants “to whom the care of the mother may still be necessary,” holding therein that although “considerations of humanity might be of weight in a doubtful case . . . it is little that legal decisions can do to enforce humanity.”39 free black families were similarly increasingly fragmented in the antebellum era. free black family members, many of whom had been free for all of their lives, were now under greater threat of kidnapping and enslavement and increasingly precluded from buying the freedom of enslaved kin.40 in the attempt to reduce the population of free blacks, seen as moral and physical threats to the institution of racial slavery, states in the 1850s also compelled previously freed slaves to leave the state. faced with the unbearable prospect of being forever separated from their children, husbands, wives, and kin, some period, after the abolition of the african slave trade in 1808 as opposed to earlier periods, see berry, supra note 22, at 21. 36 johnson, supra note 22, at 19. 37 hunter, supra note 24, at 71. 38 seibels v. whatley, 11 s.c. eq. (2 hill eq.) 605 (1837); tidyman v. rose, 9 s.c. eq. (rich. cas.) 294 (1832). 39 tidyman, 9 s.c. eq. at 301. 40 ira berlin, slaves without masters: the free negro in the antebellum south (1976). 2021] political-economic roots of coercion 485 free black people even opted to be re-enslaved to be able to live with their families.41 southern courts and legislatures continued to uphold the black economic utility standard in their coercion of black families after slavery. in 1865 and 1866, southern states passed “apprenticeship laws” that were part of the region’s black codes meant to restrict the rights of the newly freed. purportedly to protect black orphans, by providing them with guardianship and “good” homes until they reached the age of twenty-one, states took peremptory custody of children who were deemed “orphans,” even when they had parents or relatives willing and able to take care of them. these children were then often forced to work uncompensated for their former owners.42 the demands of the southern political economy continued to dictate work as compulsory for free black women, many of whom were employed as domestic laborers in white households, caring for white children and families instead of their own.43 whereas some married black mothers, when they could afford to, went to lengths to avoid wage work in favor of taking care of their own families, white employers derided these efforts as “playing the lady,” or as displays of false pretensions that jeopardized their own labor needs.44 repressive black codes and local laws attempted to enforce compulsory work for newly freed black adults by defining quitting (of work) as “idleness” and “vagrancy,” both of which were prosecutable offenses.45 and the freedmen’s bureau, established by the federal government in 1865, served to force black women and men into accepting labor contracts with severely unfair terms with the directive that agents should “not issue rations or afford shelter to any person who can, and will not labor for his or her own support.”46 in 1870 in the rural south, more than forty percent of married black women had jobs, mostly as field laborers, while over ninety-eight percent of white wives were homemakers; in southern cities, 41 ted maris-wolf, family bonds: free blacks and re-enslavement law in antebellum virginia (2015); emily west, family or freedom: people of color in the antebellum south (2012). 42 hunter, supra note 25, at 35–36. 43 id. at 3. 44 id. at 51–52. 45 id. at 29. 46 id. at 23–24. 486 colum. j. race & l. [vol. 11:471 black married women worked outside the home five times more often than white married women.47 in the intervening century and a half since racial slavery, through jim crow and following the civil rights movement, white hegemony ceased to be a state policy goal, and overt ideas of natural racial difference and hierarchy in political discourse gave way to color blindness. nevertheless, racial ideas about black family work, the primacy of black mothers’ productive labor, and disregard of the bonds of attachment and affection between black mothers and their children endure in contemporary policy, notably so in the public policies and practices of social policy and child welfare. the rise of the south in national party politics since the late-twentieth century has elevated the political significance of family in american politics, embedding the longstanding discriminatory southern family policy logic into national policy reforms. 48 iii. black family economic utility in neoliberal workfare and child welfare policy the history of child welfare policy in the united states is conventionally portrayed as a pendulum that swings back and forth between a child safety principle, which emphasizes preventing child maltreatment, and a family preservation principle, which emphasizes family unification as central to child wellbeing. the current child welfare system is described as deemphasizing reunification and intent on moving “more children into new homes faster than ever before.”49 however, by analyzing the twentieth-century policy development of child welfare alongside that of public assistance and from the perspective of black family policy treatment, the following narrative alters the conventional story of a back-and-forth pendulum and instead highlights a pattern of growing formalization of policies that economically coerce poor black 47 roberts, killing the black body, supra note 13, at 10–11. 48 on the link between the “southernization” of american politics and the rise of family in defining national policy debate and partisan agendas, see gwendoline m. alphonso, polarized families, polarized parties: contesting values and economics in american politics (2018) [hereinafter alphonso, polarized families, polarized parties]. 49 jennifer a. reich, fixing families: parents, power, and the child welfare system 54 (2012). 2021] political-economic roots of coercion 487 mothers and their families. taken together, child welfare and public assistance reforms since the late twentieth century have increasingly mandated poor black mothers’ participation in low-wage labor markets by attaching work requirements to public benefits, increasing sanctions on black childbearing by limiting cash assistance, enhancing state-level discretionary controls, and maintaining the ever-present threat of child removal. these developments highlight the current national policy iteration of the black economic utility policy standard that was long used throughout the twentieth century by southern local welfare agencies to overtly discriminate against and disadvantage poor black mothers and families. the current therapeutic (individualist) behavioral framing of black economic utility within the “color blind” neoliberal policy regime effectively obscures its racial character and conceals the structural deficiencies that sustain racial and gendered inequality. a. racial family foundations of public assistance & child welfare the story of child welfare policy development is deeply tied to that of public assistance in that both share a common family policy ideal of affectionate, nurturing families, with associated meanings of home-centered motherhood and homebound maternal worthiness.50 between 1911 and 1920, forty states offered public assistance based on family need in the form of a cash-grant program called “mothers’ pensions” to support “deserving” widowed mothers to stay home and care for their children.51 mothers’ pensions were then established at the national level in the form of the aid to dependent children program (adc, later renamed aid to dependent families with children or afdc) by the social security act of 1935, further institutionalizing government support for needy (female-headed) 50 id. at 4, 8–9. for a summary of important literature that links child welfare and public assistance policies, see frank edwards, saving children, controlling families: punishment, redistribution, and child protection, 81 am. socio. rev. 575 (2016). 51 mary ann mason, from father’s property to children’s rights: the history of child custody in the united states 93 (1994) (stating that from its inception, family public relief and cash assistance were not intended for morally dubious mothers, regardless of their need, instead a mother worthy of assistance was one who did not work outside of her home, devoted herself completely to her children, “and led a conspicuously virtuous life with no male companionship.” needy mothers deemed immoral did not receive benefits and their children were easily removed from their custody). 488 colum. j. race & l. [vol. 11:471 families on the principle that, “[f]amily life in the home is sapped in its foundations when the mothers of young children work for wages.”52 from the start, this principle and its programmatic assistance did not apply to black mothers, their children, and families. in the progressive and great depression eras, european immigrants received far more generous access to social welfare programs and were protected by social workers to ensure that non-citizenship and illegal status did not exclude them from assistance, whereas black people were relegated to minimal, racist, and degrading public assistance programs, and mexicans who asked for assistance were deported with the help of the very social workers to whom they turned for aid.53 in a 1921 u.s. children’s bureau study of mothers’ pension recipients in eight counties, foreign-born white people were found to be vastly overrepresented, and only one black family received mothers’ pensions across the eight areas studied. in st. louis, the foreignborn white population represented forty percent of the city’s mothers’ pension recipients even though they made up just thirteen percent of the population, and while black people were ten percent of the city’s population in 1920, only one “negress” was to be found on its mothers’ pension rolls.54 though in practice, black mothers were often the last to apply for relief,55 some southerners nevertheless expounded racist ideas of “natural” black racial inferiority to pathologize black families and construct black family dependency. for instance, a professor at paine college in augusta, georgia, claimed: we say, here in the south, that the mass of negroes are thriftless and unreliable; that their homes are a menace to the health of the community; and that they largely furnish our supply of criminals and paupers . . . [m]ost of us believe that all this is the natural result, not of the 52 jill quadagno, the color of welfare 119 (1994). 53 cybelle fox, three worlds of relief: race, immigration, and the american welfare state from the progressive era to the new deal (2012). 54 id. at 103, 115. 55 id. at 114. 2021] political-economic roots of coercion 489 negro’s economic status, but of the negro’s being negro.56 black mothers and families, primarily because most lived in the south, were excluded from the efforts of social workers and from material programmatic support designed to address family needs.57 the social security act of 1935 accommodated the racial distribution of adc benefits and discriminatory labor-based practices. key democratic congressmen and committee chairs from the south predicated their support of the bill on retaining state control over establishing eligibility criteria and deciding who would receive benefits, enabling local welfare officials to direct the vast majority of adc benefits to white, widowed women with young children.58 local control over welfare benefits had long been instrumental in maintaining a system of racial paternalism and a stratified racial economic order in the south. since the end of the civil war, the provision of certain benefits, including access to medical care and protection from violence, had been an important mechanism through which white planter elite maintained their control over mostly black, but also poor white, agricultural workers.59 in 1939, after congress accommodated widows of industrial workers into the old-age insurance program, adc became the last resort for single, divorced, and deserted women, many of whom were black. southern states and some northern ones in the 1940s and 1950s then further limited the eligibility criteria, now adding seasonal employment policies that local agencies in turn used to cut mostly black adc recipients off the welfare rolls during the cotton-picking season, maintaining the supply of cheap agricultural labor.60 although the welfare rights movement succeeded in extending the adfc program to black families in the 1960s, benefits were further curtailed and burdened with behavioral 56 id. at 115. 57 linda gordon, pitied but not entitled: single mothers and the history of welfare 84–85 (1998). 58 quadagno, supra note 52, at 119. 59 lee j. alston & joseph p. ferrie, southern paternalism and the american welfare state: economics, politics and institutions in the south, 1865–1965 (1999). 60 quadagno, supra note 56, at 119, 120. 490 colum. j. race & l. [vol. 11:471 regulations.61 as late as 1970, the discriminatory local practices targeting black mothers’ labor in the cotton south were described at a senate committee in the following terms: “welfare recipients are made to serve as maids or to do day yard work in white homes to keep their checks. during the cotton-picking season[,] no one is accepted on welfare because plantations need cheap labor to do cotton-picking behind cotton-picking machines.”62 thus, despite the formal expansion of welfare support, southern local practices continued to apply the coercive black economic utility standard to poor black mothers, and policymakers at all levels remained largely unconcerned with the wellbeing of black children when their mothers were required to work, excluding black families from the limited public daycare assistance programs.63 the post-war neglect of the children of working black mothers and the southern use of welfare to mandate labor from needy black mothers starkly contrasted with the mid-century national state’s efforts to positively support a child-centered, patriarchal (white) nuclear marital family ideal.64 multiple congressional committees focused investigations on issues of juvenile delinquency and child neglect and pressed for the urgent need to provide programmatic material and therapeutic support for married white mothers within the home.65 policymakers were also preoccupied with containing white out-of-wedlock births and redeeming the marriageability of white unmarried mothers through adoption placements of their babies. however black outof-wedlock children were not included in this policy discussion, and their policy neglect was justified again by racist ideas of 61 gwendolyn mink, welfare’s end 52 (1998) (“[s]tates like louisiana and alabama evicting black[ people] from welfare in disproportionate numbers through moral fitness tests of one sort or another, with politicians denouncing never-married mothers as welfare chiselers, and with social scientists lamenting the structure of black families needing welfare, the racial politics of welfare was clear.”) 62 quadagno, supra note 52, at 128. 63 reich, supra note 49, at 11 (“[p]ublic assistance programs provide a source of (limited) economic freedom for women, poor women have experienced the state as oppressive and invasive. recipients of public assistance have been subjected to ‘unreasonable searches, harassing surveillance, eavesdropping and interrogation concerning their sexual activities’ by state welfare agencies.”) 64 elaine tyler may, homeward bound: american families in the cold war era 11–12 (1995). 65 alphonso, polarized families, polarized parties, supra note 48, at 82–88. 2021] political-economic roots of coercion 491 natural racial difference, maternal behavior, and worth. as rickie solinger states, several post-war policymakers “maintained that black[ mother]s had babies out of wedlock because they were negro, because they were ex-africans and exslaves, irresponsible and immoral, but baby-loving.66” solinger also rightly notes that this policy ideation of natural black sexuality and pathological black maternal “culture” exonerated the state from public responsibility of black illegitimate children, “since blacks would take care of their children themselves. and if [they] did not, they were responsible for their own mess.”67 policymakers’ ideation of unwed black childbearing as natural and thus undeserving of policy attention was soon to be reframed within neoliberal policy discourse. b. economic pathologizing of non-marital black mothers and neoliberal policy reforms it was in the post-war era that unwed black childbearing also began to increase in political salience as a key discursive site for the growing neoliberal vilification of black mothers as threats to free-market values, paving the way for the economic framing of unwed black motherhood as critical to the political project of dismantling the new deal welfare state. the emerging economic pathologizing of poor black motherhood, which continues into our time, is a testament to the endurance of the black economic utility standard, in that unwed black motherhood has been persistently framed in economic terms, viewed firstly as an economic problem with repercussions for the neoliberal market order, in contrast to unwed white motherhood that is politically framed as a social and moral threat to family integrity. from 1945 to 1965, southern dixiecrats and their northern allies pioneered the discourse of the marketplace to construct poor black motherhood as an economic pathology and advocate for their punishment in the form of welfare benefit rescindment, sterilization, and even incarceration of “illegitimate mothers.”68 drawing on the trope of “illegitimate child-ascommodity,” black unmarried mothers were constructed as “women whose business is having illegitimate children,” as those 66 rickie solinger, race and “value”: black and white illegitimate babies, 1945–1965, in mothering: ideology, experience, agency 287, 298 (grace chang et al. eds., 2016). 67 id. 68 id. at 298. 492 colum. j. race & l. [vol. 11:471 who commodified their reproductive capacities to violate basic consumerist principles by offering “bad value (black babies) at a high price (taxpayer-supported welfare grants) to the detriment of society, demographically and economically.”69 in contrast to white mothers, whose extra-marital childbearing was attributed to their psychopathology and neuroses, the pathology of black unwed motherhood was constructed in distinctly economic terms, as a drain on public resources that generated cycles of intergenerational black dependency.70 starting in the late 1970s and peaking in the 1990s, the economic pathologizing of poor black motherhood and families came to a head as family emerged as a key political battleground on which conservatives waged war on liberalism, shifting the policy spotlight away from structural, economic needs of families to individual family values.71 black motherhood, childbearing, and child-rearing now rose to sudden political prominence, as a root cause of poverty and inequality.72 the focus on family values added a moral dimension to the growing condemnation of poor black mothers and their families that drew on previous southern racist tropes that were now cast as colorblind judgments about immoral behavior, not racial traits.73 nevertheless, these tropes persisted in stigmatizing poor black mothers as sexuallypromiscuous “jezebels,” irresponsible child-bearers and “matriarchs,” immoral “crackhead moms,” and criminal “welfare queens.”74 the wellbeing of black children, their protection from abusive and neglectful mothers, and out-of-home placement also concurrently emerged as a newfound policy goal. in the mid-tolate 1980s, the focus on “crack babies” impelled large-scale child removals from black families.75 almost all the women prosecuted 69 id. at 300. 70 id. at 289, 300. 71 alphonso, polarized families, polarized parties, supra note 48, at 38–44. 72 the focus on black matriarchal families as generating cycles of social and economic “pathology” is attributed to daniel patrick moynihan, the negro family: the case for national action, (1965). see also roberts, killing the black body, supra note 13, at 8. 73 roberts, killing the black body, supra note 13, at 10–21. 74 id. 75 reich, supra note 49, at 38–45 (explaining that the landmark child protection legislation, child abuse prevention and treatment act of 1974, had constructed child abuse, as a policy issue, in universal terms, as cross-class and 2021] political-economic roots of coercion 493 for drug use were black, a pattern consistent with research that shows that even after controlling for poverty and other variables, black women were far more likely to be reported for prenatal substance abuse than other women.76 the public attention around “crack babies” and positive drug tests further justified greater agency interference in, and regulation of, the lives of poor women of color and their children. relying on the pathological construction of poor black mothers as economic and moral threats, southern congressmen, first as democrats, then as republicans, successfully spearheaded the movement to reframe and repurpose social welfare in a colorblind way that limited cash assistance and sustained racially stratified labor markets.77 the longstanding black economic utility principle was now formalized in the behavioral requirement of “work” as a new policy goal of social welfare programs.78 the landmark personal responsibility and work opportunity reconciliation act (prwora) of 1996 eliminated the welfare safety net program and replaced it with block grants to states, enshrining state-level discretion over the new temporary assistance for needy families (tanf) program, requiring work from those receiving benefits, and increasing pressure on states to move participants from cash assistance to work. concurrent changes in child welfare policies hastened child removals away from poor black mothers. the adoption and safe families act (asfa), enacted alongside the prwora in 1997, limited the scope of “reasonable efforts” to prevent child removals, significantly tightening the previous timeline to six months within which reunification must occur and increasing the financial incentives to encourage states to increase their rates of adoption out of foster care.79 since the 1980s, black children have remained vastly overrepresented in out-of-home placements, exceed the average number of years in foster care, have the lowest rates of adoption, and are least likely to be placed in cross-race, encouraging aggressive and increased intervention in favor of child protection, exponentially increasing the number of child removals from their homes and placements into foster care). 76 id. at 46. 77 eva bertram, the workfare state: public assistance politics from the new deal to the new democrats 28 (2015). 78 id. at 32. 494 colum. j. race & l. [vol. 11:471 families.80 the family first prevention services act of 2018 continues to operate within the neoliberal policy framework that focuses on parental behavior regulation to the exclusion of structural remedies. the new legislation constructs “support to children and families” in individual, behavioral terms, calling on states to use federal funding for enhanced “provision of mental health and substance abuse prevention and treatment services, in-home parent skill-based programs, and kinship navigator services.”81 the overarching negative framing of black mothers and families within neoliberal policy discourse is evident in the policy discussions of members of congress. in their remarks during committee hearings on family-related policies for the period of 1980 to 2005, the period of formative policy change, congresspersons referenced over 1100 real-life family examples of which 304 were identified by race and 110 were black families. 52.9% of these black family examples were invoked by members of congress to highlight negative policy developments compared to the vast majority (63.1%) of white-identified family cases that were used to illustrate policy successes.82 30.3% of these real-life black family examples referenced unmarried single-mother families as compared to 2.1% of such white family cases, suggesting the correlation of black unmarried-mother families with negative policy perceptions. the centrality of child abuse concerns to the policy construction of black families is also demonstrated by the hearings data. the largest proportion (19.5%) of all black family references invoked during committee hearings involved discussions of “child protection” policy, followed by the second largest proportions of black family references (16% each) used as examples in policy discussions regarding “marriage/fatherhood” 80 foster care, child trends databank (may 24, 2018), https://www.childtrends.org/?indicators=foster-care [https://perma.cc/4ph35tk8]. see also keeping kids in families: trends in foster care placement, annie e. casey found. (april 2, 2019), https://assets.aecf.org/m/resourcedoc/aecf-keepingkidsinfamilies-2019.pdf [https://perma.cc/n4zs-gn95]. 81 family first prevention services act, pub. l. no. 115-123, 132 stat. 232 (2018). 82 data throughout the rest of this section has been computed by author; for methodology and case selection criteria, see alphonso, polarized families, polarized parties, supra note 48, at 177–83. https://www.childtrends.org/?indicators=foster-care 2021] political-economic roots of coercion 495 and “housing/living conditions.” given that only a fraction of all family examples discussed in committee hearings were identifiable by their race, those that were racially-identifiable were especially suggestive of when and how race mattered and was expressly or indirectly referenced, and in which kinds of policy discussions. it is thus telling that blackness, as a family characteristic, was highlighted the most by members of congress when referring to policies pertaining to child abuse and protection, suggesting the close associative link between child abuse and blackness of family in neoliberal policy discourse and logic as well as to marriage and fatherhood regulation. the whiteness of a family, on the other hand, was disproportionately identified in discussions focused on “women” (women’s rights), “jobs,” “elder care,” “wealth,” and “parental rights” (see figure 1). 496 colum. j. race & l. [vol. 11:471 2021] political-economic roots of coercion 497 given the overwhelmingly negative policy perception of poor black mothers and families and the formalization of the coercive black economic utility standard into the tanf program of workfare and discretionary state practices, the most coercive compulsory work practices continue to be directed at black mothers and their families. there is much evidence that states use their enhanced discretion over sanctioning, for example, to uphold racialized distribution of benefits.83 states are found to use racial ideologies to justify and normalize higher rates of sanctioning of mothers of color by rescinding their benefits more often and more severely than white mothers.84 additionally, other research points to labor market discrimination that makes complying with work requirements more difficult for women of color, in turn justifying sanctions for their noncompliance.85 one study found that racial inequities in states’ administration of the tanf program contributed to the impoverishment of approximately 256,000 black children per year from 2012–2014, also finding that states with larger percentages of black residents are less likely to prioritize the provision of cash assistance, but more likely to allocate funds toward the discouragement of lone motherhood.86 startling rates of economic insecurity now persist in black households as do disproportionately high black child removals from their families. in 2019, 40% of black children had parents who lacked secure employment, compared to 20% of white children, with 31% of black children living in poverty, 83 on the use of sanctioning to uphold racialized distribution of benefits, see shannon m. monnat, the color of welfare sanctioning: exploring the individual and contextual roles of race and tanf case closures and benefit reductions, 51 socio. q. 678–707 (2010); richard c. fording et al., devolution, discretion, and the effect of local political values on tanf sanctioning, 81 soc. serv. rev. 285 (2007); carolyn y. barnes & julia r. henly, “they are underpaid and understaffed”: how clients interpret encounters with street-level bureaucrats, 2018 j. pub. admin. rsch. & theory 165 (black people facing harsher sanctioning and negative encounters); bradley l. hardy et al., cash assistance in america: the role of race, politics, and poverty, the r. of black pol. econ. 306 (2019) (black families as less likely to receive cash assistance). 84 see monnat, supra note 83, at 680. 85 id. at 681. 86 zachary parolin, temporary assistance for needy families and the black–white child poverty gap in the united states, socio-econ. rev., may 2019, at 1, 24. 498 colum. j. race & l. [vol. 11:471 compared to 10% of white children.87 for poor black mothers seeking assistance, whose poverty runs counter to the expected policy standard of black economic utility, their poverty engenders the constant threat of surveillance and child removals, far more than any other group. as opposed to any other racial group, it is far more likely that child removals for black mothers resulted from poverty than maltreatment.88 moreover, economic status uniquely increases the vulnerability of black women in family court systems; in addition to undermining their access to resources, poverty undergirds their stereotypical representation as bad mothers, justifying punishment and family separation as the preferred intervention.89 iv. conclusion this article has outlined the policy development of the coercive black economic utility policy standard as applied to poor black mothers and their families since slavery, highlighting its southern political-economic roots, its development through the twentieth century, and its colorblind framing within current neoliberal child welfare and social welfare policy regimes. by doing so, it has pointed to the underlying racial family policy logic to explain the persisting racial disparities and increasing punitive governmentality in the treatment of poor black mothers and children and highlights the deliberate political choices that have come to embed this logic in national policies and state-level implementation. the racially-stratified family policy framework identified here, comprising of the punitive black economic utility family standard and the supportive white affective family standard, provides us with new conceptual tools to evaluate proposals for reforms to the child welfare and social welfare systems and calls for a radical overhaul focused on federal anti-poverty assistance as opposed to state-level behavioral 87 children whose parents lack secure employment by race and ethnicity in the united states, kids count data ctr., annie e. casey found. https://datacenter.kidscount.org/data/tables/5064-children-whose-parents-lacksecure-employment-by-race-and-ethnicity [https://perma.cc/7hnz-9986] (last visited june 4, 2021); children in poverty by race and ethnicity in the united states, kids count data ctr., annie e. casey found., https://datacenter.kidscount.org/data/tables/44-children-in-poverty-by-raceand-ethnicity [https://perma.cc/63f9-t38m] (last visited june 4, 2021). 88 hyunil kim & brett drake, child maltreatment risk as a function of poverty and race/ethnicity in the usa, 47 int’l. j. epidemiology 780 (2018). 89 crenshaw, supra note 11, at 1427 nn.19 & 21. 2021] political-economic roots of coercion 499 regulation. the paper’s historical policy analysis suggests that all reforms that devalue the affective and nurturing labor performed by black mothers in favor of their economic regulation will perpetuate racially stratified family policy ideals, obscure the unique vulnerabilities of poor black women and their families, and impede the goal of meaningful anti-racist family support and inclusion. 500 colum. j. race & l. [vol. 11:471 microsoft word cjrl yi s17 final.docx the status quo of racial discrimination in japan and the republic of korea and the need to provide for anti-discrimination laws yujin yi* japan and the republic of korea, two neighboring nations situated in east asia, have homogenous demographics. both societies face large influxes of foreigners—from immigration and tourism alike—due to various factors ranging from rapidly aging populations, low birth rates, and globalization. despite this, neither country has sufficient legal means of halting racially discriminatory practices that occur within them. this note illustrates the rampant nature of racial discrimination in japan and the republic of korea, analyzes the current state of their antidiscrimination laws, argues that the existing legal protections for foreigners against racial discrimination are inadequate at best, and finally, urges that the two governments adopt available means to improve upon the situation. i. introduction ............................................................ 411 ii. the historic and legal foundations of discrimination in japan and korea ..................... 413 a. roots of racial prejudice in japan and korea .... 414 1. roots of racial discrimination in japan ........ 416 2. roots of racial discrimination in korea ........ 419 b. the ineffective legal protections against racial discrimination ...................................................... 421 * juris doctor candidate 2017, columbia law school; bachelor of arts 2014, waseda university. the author would like to thank todd densen, as well as the staff of the columbia journal of race and law, for their tireless editing contributions and substantive feedback. the author would also like to thank professor david waters of waseda university for his significant contribution to the shaping of this note. no. 4:410] the status quo of racial discrimination 411 1. legal and social obstacles for foreigners in japan .............................................................. 422 2. legal and social obstacles for foreigners in korea .............................................................. 426 iii. contemporary cases of racial discrimination in japan .......................................................................... 429 a. the nationality act of 1984 and citizenship grant issue ....................................................................... 430 b. the case of arudou debito .................................. 433 c. treatment of other ethnic groups in japan ...... 436 1. the buraku ...................................................... 436 2. the ainu .......................................................... 437 3. the koreans ..................................................... 438 4. other foreign and migrant workers ............. 440 iv. contemporary cases of racial discrimination in korea ......................................................................... 442 a. the story of bonojit hussain ............................... 442 b. treatment of other racial groups ...................... 444 1. mixed-race children, interracial marriage, and the need for diversity education ........... 445 c. racial discrimination against immigrants ......... 450 d. racial discrimination among businesses ........... 451 v. comparing the legal systems of the united states, japan, and korea ....................................... 453 a. japan’s case law: application to private actors and effects of the convention on the elimination of all forms of racial discrimination ................. 455 b. the lack of anti-racial discrimination laws and cases in korea ...................................................... 459 c. recommendations for japan and korea in light of the united states’ approach ................................ 463 vi. conclusion ............................................................... 467 i. introduction japan and the republic of korea (“korea”) are renowned for their extremely homogenous populations. the two nations now face a similar challenge. both nations have 412 columbia journal of race and law [vol. 7:2 rapidly aging populations and low birth rates, resulting in population decline.1 some have suggested that these nations should admit more foreigners to counteract their population decline.2 while it is unclear whether the two nations will ultimately choose immigration as a solution to the declining population problem, if the countries wish to do so, it is crucial that they evaluate their existing laws and provide for adequate protection against racial discrimination to foreigners. this note will first describe the status quo of the two nations’ racial discrimination laws, and explain the idiosyncrasies present in societies with homogenous populations that contribute to the development of such laws. the issue is twofold: (1) both japan and korea have highly restrictive immigration policies based on the principle of jus sanguinis, a principle by which a child’s citizenship is 1 see misato adachi, ryo ishida, & genki oka, japan: lessons from a hyperaging society, mckinsey & company (mar. 2015), http://www.mckinsey.com/global-themes/asia-pacific/japan-lessons-from-ahyperaging-society [https://perma.cc/r8zn-awjm ] (discussing japan’s aging population and falling birth rate); yoon ja-young, korea faces rapidly aging population, the korea times (mar. 24, 2016), http://www.koreatimes.co.kr/www/news/biz/2016/03/123_201016.html [https://perma.cc/6sen-598c] (discussing korea’s aging population and present birth rate); olga garnova, japan and its birth rate: the beginning of the end or just a new beginning?, the japan times (feb. 10, 2016), http://www.japantimes.co.jp/community/2016/02/10/voices/japan-birthrate-beginning-end-just-new-beginning/#.wmgeitvys54 [https://perma.cc/v4hd-4en9 ] (discussing japan’s declining birth rate); declining birth rates raising concerns in asia, the east-west center, http://www.eastwestcenter.org/news-center/east-west-wire/declining-birthrates-raising-concerns-in-asia [https://perma.cc/p2xt-9nt3] (discussing aging populations and declining birth rates in several asian nations). 2 hugh cortazzi, japan’s population problem, the japan times (nov. 19, 2015), http://www.japantimes.co.jp/opinion/2015/11/19/commentary/japancommentary/japans-population-problem/#.wmgfgtvys54 [https://perma.cc/3tvv-373s]; kwanwoo jun, south korea may need up to 15 million immigrants, study says, the wall street journal (dec. 15, 2014), http://blogs.wsj.com/korearealtime/2014/12/15/immigrationneeded-to-bolster-workforce-study-says/ [https://perma.cc/5peg-xnz8]. no. 4:410] the status quo of racial discrimination 413 determined by the parents’ nationality, and rarely grant citizenship to those who are not ethnically japanese or korean; and (2) in a broad sense, the two nations limit the scope of protection against racial discrimination only to citizens and provide inadequate protection for foreigners, whether they are temporary visitors or permanent residents. the combination of these two problems makes it nearly impossible for foreigners in either nation to receive protection from racial discrimination. this note evaluates the two nations’ approach to antidiscrimination in contrast to the approach of the united states. this note further suggests ways in which japan and korea can improve by adopting some of the tools used by the united states. part ii describes the history of antidiscrimination laws in japan and korea. it also explains the current state of these laws and compares them with the laws of the united states. part iii elucidates how ineffective the current laws are by looking at the discrimination faced by various ethnic and/or racial groups similarly situated in japan. similarly, part iv looks at the same issues with regards to korea. part v of this note compares and contrasts the two regimes with that of the united states. specifically, the judicial systems ought to employ heightened scrutiny in cases involving discrimination based on race or nationality and the government should take efforts to evolve social perception of outsiders through education and recognition of the values of a diverse population. ii. the historic and legal foundations of discrimination in japan and korea studies suggest that the statutes, laws, and constitutions of japan and korea fail to provide sufficient protection against discrimination for racial minorities within their jurisdictions.3 this is especially problematic, given 3 doudou diène (special rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance), 414 columbia journal of race and law [vol. 7:2 that the population decline in both societies renders it unlikely the nations will be able to continue on with their restrictive immigration policies.4 the combination of globalization and internal population decline makes it very likely an increasing number of migrants will immigrate to the two nations. a. roots of racial prejudice in japan and korea both japan and korea are known for their homogenous racial composition, low-birth rates, and aging mission to japan, ¶ 11, u.n. doc. e/cn.4/2006/16/add.2 (jan. 24, 2006) [hereinafter special rapporteur mission to japan]; doudou diène (special rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance), implementation of general assembly resolution 60/251 of 15 march 2006 entitled “human rights council”, ¶ 37, u.n. doc a/hrc/5/10 (may 25, 2007) (“in japan, except for the anti-discrimination provision contained in article 14 of the constitution, there are no other instruments that enforce the general principle of equality or sanction discriminatory acts committed by citizens, businesses or non-governmental organizations (ngos). hate speech is not a criminal offense, but rather a minor civil violation that may result in monetary compensation; yet only when it has been judged as defamation of individuals, but not of certain groups of people or minorities in general. besides, the country does not have specific hate crime laws.”); yuji iwasawa, legal treatment of koreans in japan: the impact of international human rights law on japanese law, 8 hum. rts. q. 131, 160–178 (1986); comm. on the elimination of racial discrimination, consideration of reports submitted by states parties under article 9 of the convention, concluding observations of the committee on the elimination of racial discrimination, republic of korea, ¶¶ 6–19, u.n. doc. cerd/c/kor/co/15-16 (aug. 31, 2012) [hereinafter cerd 2012 report on korea]. 4 with limited exceptions, japan restricts entry only to foreign workers with requisite skills and only for set periods of time. carmel a. morgan, demographic crisis in japan: why japan might open its doors to foreign home health-care aides, 10 pac. rim l. & pol’y j. 749, 765 (2001). south korea has only in the last fifteen years begun to accept unskilled migrant labor and only on a limited basis through three national programs. young-bum park, south korea: balancing labor demand with strict controls, migration policy institute (dec. 1, 2004), http://www.migrationpolicy.org/article/south-korea-balancing-labordemand-strict-controls [https://perma.cc/dl8n-kbbh]. no. 4:410] the status quo of racial discrimination 415 populations.5 while taking in immigrants may mitigate the declining population issue, there are cultural obstacles to such a solution. in japan, the “japanese national identity[,] built around the notion of racial purity and cultural integrity[,] developed in part because of japan’s geographical isolation as an island nation and in part because of conscious political efforts to create a mythology of a ‘pure’ ethnic nation,” may make integration of immigrants challenging.6 similarly, an immigration-centered solution will be difficult to implement in korea. gi-wook shin, a professor of sociology, explains: koreans have developed a sense of nation based on shared blood and ancestry. the korean nation was ‘racialized’ through a belief in a common prehistoric origin, producing an intense sense of collective oneness . . . [r]ace served as a marker that strengthened ethnic identity, which in turn was instrumental in defining the nation. 5 cortazzi, supra note 2 (discussing japan’s demographic challenges with regards to the working age population and birthrate); hwangbo yon & hyun-woong noh, already oecd lowest, south korea’s birthrate getting worse, the hankyoreh (aug. 28, 2016), http://english.hani.co.kr/arti/english_edition/e_national/758664.html [https://perma.cc/4wpy-42pr] (discussing korea’s declining birthrate). more detailed information on the birthrate and age statistics can be found on the world bank’s online database. see generally, fertility rate japan, world bank, http://data.worldbank.org/indicator/sp.dyn.tfrt.in?locations=jp [https://perma.cc/75yd-h5mr]; population ages 65 and above japan, world bank, http://data.worldbank.org/indicator/sp.pop.65up.to.zs?locations=jp [https://perma.cc/p36l-vgkf]; fertility rate, total (births per woman) korea, world bank, http://data.worldbank.org/indicator/sp.dyn.tfrt.in?end=2014&location s=kr&start=1960&view=chart [https://perma.cc/p6ws-2kss]; population ages 65 and above korea, world bank, http://data.worldbank.org/indicator/sp.pop.65up.to.zs?locations=kr [https://perma.cc/9h8l-tanr]. 6 betsy brody, opening the door: immigration, ethnicity, and globalization in japan 31 (2002) (citations omitted). 416 columbia journal of race and law [vol. 7:2 koreans thus believe that they all belong to a ‘unitary nation’ (danil minjok), one that is ethnically homogeneous and racially distinctive . . . the korean nationality law is still based on jus sanguinis and legitimizes, consciously or unconsciously, ethnic discrimination against foreign migrant workers.7 while the notion of exclusion itself is arguably discriminatory in nature, the difficulty of integrating migrants is compounded by the fact that there is little legal protection to ensure equal treatment of foreign visitors and permanent residents in either japan or korea. the accelerating effects of globalization make the lack of antiracial-discrimination laws in both japan and korea an urgent challenge that deserves immediate attention. 1. roots of racial discrimination in japan roughly, only two percent of japan’s population is not ethnically japanese.8 this figure includes large numbers 7 gi-wook shin, korea’s ethnic nationalism is a source of both pride and prejudice, according to gi-wook shin, korea herald (aug. 2, 2006), http://aparc.fsi.stanford.edu/news/koreas_ethnic_nationalism_is_a_source_ of_both_pride_and_prejudice_according_to_giwook_shin_20060802 [https://perma.cc/6uqa-vsv8]. see also gi-wook shin, ethnic nationalism in korea: genealogy, politics, and legacy 49 (2006). 8 ethnic composition of japan is as follows: japanese 98.5%, koreans 0.5%, chinese 0.4%, other 0.6%; note that, up to 230,000 brazilians of japanese origin migrated to japan in the 1990s to work in industries; some have returned to brazil. the world factbook: japan, central intelligence agency, https://www.cia.gov/library/publications/the-world-factbook/geos/ja.html [https://perma.cc/mhj8-6v98]. moreover, currently there is only a 3:1 ratio of workers to retirees; by 2025 the number of workers supporting each retiree could fall to only two. chikako usui, japan's demographic future and the challenge of foreign workers, in local citizenship in recent countries of immigration: japan in comparative perspective 37, 40–41 (takeyuki tsuda ed., 2006). no. 4:410] the status quo of racial discrimination 417 of permanent residents—mostly korean and chinese—who have lived in japan for generations but have been unable to obtain citizenship.9 while some japanese officials have suggested taking in additional immigrants to cope with the population decline issue,10 it is “approached as a last resort.”11 “at the heart of the country’s strict laws is the cherished ‘myth of homogeneity’ that firmly believes in the value of a one-size-fits-all culture, language, and ethnicity . . . this myth of homogeneity has had profound influences on japan’s immigration policy and foreign worker populations over the years.”12 japan’s immigration policy has “traditionally been based on jus sanguinis, the principle that one’s nationality at birth is the same as that of one’s biological parents.”13 “‘these boundaries of nationality and 9 allison hight, the myth of homogeneity in japanese race relations, demographic momentum, and projected economic role, world report news (jun. 21, 2012), http://www.worldreportnews.com/far-andsouth-east-asiaaustralia-archived/the-myth-of-homogeneity-in-japaneserace-relations-demographic-momentum-and-projected-economic-role [https://perma.cc/2wws-3mrn]. 10 the japanese government is considering admitting 200,000 immigrants every year to cope with the decline in the economically active population—due to extremely low birth rate and the aging population. right now immigration is limited to those with “advanced expertise and skills.” see maitoshi 20 man’in-no imin ukeire seifu ga honkaku kentō kaishi, keisai news (2014), http://www.sankei.com/politics/news/140313/plt1403130006-n1.html [https://perma.cc/u29b-whcy]. 11 d.m., the incredible shrinking country, the economist (mar. 25, 2014), http://www.economist.com/blogs/banyan/2014/03/japansdemography [https://perma.cc/46wj-c826] (“immigration is being approached as a last resort. even so the prime minister faces tough choices. the united nations estimates that without raising its fertility rate, japan would need to attract about 650,000 immigrants a year. there is no precedent for that level of immigration in this country, which is still a largely homogenous society.”). 12 hight, supra note 9. 13 deborah hinderliter ortloff & christopher j. frey, blood relatives language, immigration, and education of ethnic returnees in 418 columbia journal of race and law [vol. 7:2 citizenship close the door to many long-term, non-national residents’ including not only the korean population but also those of chinese descent who also began their residency prior to wwii and in some cases, the small population of mixed ethnic descent.”14 although occupants of many different countries have had difficulty integrating into japanese culture both culturally and lawfully, . . . groups of koreans . . . have been particularly affected because of their relatively large numbers . . . by 1940, the number of koreans living in japan exceeded 1.2 million. when the country had its independence restored in 1952, however, japan denied this ethnic group citizenship status, even for those who had at this point resided in the country for decades as a result of the country’s colonial legacy . . . . [t]he korean minority in japan[] are discouraged, through restrictive policies on naturalization, from becoming citizens. they are, regardless of the length of their stay and intentions to remain in the country, always ‘foreigners’ since they are ‘unassimilable.’ it is ethnicity rather than language, culture, or even religion that bars these residents from full inclusion in society.15 in contrast to the treatment of migrants who are not ethnically japanese, the attitude toward returning nikkeijin (people of japanese descent that permanently emigrated germany and japan of ethnic returnees in germany and japan, 51 comp. educ. rev. 447, 447 (2007). 14 hight, supra note 9 (quoting ortloff & frey, supra note 13, at 447). 15 id. (citations omitted). no. 4:410] the status quo of racial discrimination 419 from japan to another country),16 illustrates how the “japanese identity is largely influenced by the ideology of homogeneity which is constructed by putting emphasis of japanese shared bloodline, language, and culture.”17 due to their ethnicity as japanese, nikkeijin are treated differently from other migrant groups, such as receiving visa preferences and the “exceptional privilege of being allowed to reside and engage in work without any restrictions.”18 this demonstrates that “the criteria to be ‘japanese’ can only be fulfilled by someone who has japanese shared bloodline, culture and language. if one lacks only one of the three elements, he or she will not totally be recognized as ‘japanese.’”19 2. roots of racial discrimination in korea the central intelligence agency world factbook describes korea’s ethnic composition as “homogeneous (except for about 20,000 chinese).”20 there are 1,741,919 foreigners residing in korea, with 457,806 of whom living in the capital city—seoul.21 as of august 2015, korea has twelve “multicultural cities” (damunhwa dosi) in which foreign residents comprise more than five percent of the population.22 16 yuki sugiyama, what does it mean to be japanese? the cases of nikkeijin, japansociology (jan. 18, 2012), https://japansociology.com/2012/01/18/what-does-it-mean-to-be-japanesethe-cases-of-nikkeijin/ [https://perma.cc/zv7m-8vzg]. 17 id. 18 id. 19 id. 20 the world factbook: korea, central intelligence agency, https://www.cia.gov/library/publications/the-world-factbook/geos/ks.html [https://perma.cc/4j6j-edhr]. 21 kanghan kim & jungmi nam, oegugin jumini 5% neomneun ‘damunhwa dosi’ jeonguk 12 got, chosun news (aug. 28, 2015), http://news.chosun.com/site/data/html_dir/2015/08/28/2015082800276.html ?dep0=twitter [https://perma.cc/5ann-8s9t]. 22 id. 420 columbia journal of race and law [vol. 7:2 like japan, korea is also facing a low birth rate and an aging population.23 long-term immigration policy has been suggested as a possible solution.24 however, to make long-term residency possible for new immigrants, laws addressing irrational social prejudices against foreigners should come before implementation of policies to incentivize foreigners to immigrate to korea. this is exceptionally challenging given the korean concept of tanil minjok (pure race), the idea that koreans have maintained their “koreanness” by repelling foreign invaders since the nation’s formation.25 moreover, the korean counterpart to the japanese notion of racial purity—racial nationalism26—is in tension with potential laws that will ensure equal treatment of different races residing in korea. in korea, racism is a “complex product of the country’s colonial history, postwar american influence and military presence, rapid economic development as well as patriotism that takes a special pride in its ‘ethnic homogeneity.’”27 professor kim hyun-mee from yonsei university explains that, “unlike racism in the west, korean racism is mostly targeted against those from other asian nations.”28 the country’s rapid economic development after world war ii (“wwii”) has had a side-effect, in which people “hierarchize foreign nations according to their economic 23 ja-young, supra note 1. 24 andrew eungi kim, democracy, migration and multiculturalism in south korea, the asia-pac. j.: japan focus (jan. 29, 2009), http://apjjf.org/-andrew-eungi-kim/3035/article.html [https://perma.cc/xky5-4aff]. 25 hyung il pai, constructing “korean” origins: a critical review of archaeology, historiography, and racial myth in korean state-formation theories 256 (2000). 26 gi-wook shin, ethnic nationalism in korea: genealogy, politics, and legacy 223 (2006). 27 claire lee, defining racism in korea, the korea herald (sep. 4, 2014), http://www.koreaherald.com/view.php?ud=20140904001088 [https://perma.cc/cfc4-tg6l]. 28 id. no. 4:410] the status quo of racial discrimination 421 status.”29 koreans perceive certain developed nations such as the united states and the united kingdom as “their superiors whom they should learn from . . . while perceiv[ing] economically developing countries as their inferiors with no specific grounds.”30 today, the government’s employment permit system (“eps”) facilitates the import of cheap labor from neighboring countries, and this combined with koreans’ prejudice against neighboring nations is leading korean employers to exploit workers “by severely restricting migrant workers’ ability to change jobs and challenge abusive practices by employers.”31 b. the ineffective legal protections against racial discrimination the laws of both japan and korea are ineffective at protecting individuals from racial discrimination by both state and private actors. unlike the united states constitution, which limits the power of the federal and state governments to discriminate through the fifth and fourteenth amendments,32 japan and korea’s respective constitutions fail to appropriately confine the governmental power to discriminate. in effect, their constitutions fail to safeguard non-citizens—and sometimes even citizens who are not ethnically japanese or korean—from racial discrimination by state actors. with regards to private sector racial discrimination, neither japan nor korea has a domestic law equivalent to the united states’ civil rights 29 id. 30 id. 31 amnesty int’l, bitter harvest: exploitation and forced labour of migrant agricultural workers in south korea 5 (2014), http://www.amnestyusa.org/sites/default/files/asa_250042014.pdf [https://perma.cc/ts32-fpkn]. 32 united states v. carolene products co., 304 u.s. 144, 152 n.4 (1938) (noting that policies which prejudice “discrete and insular minorities” may require a “more searching judicial inquiry.”). 422 columbia journal of race and law [vol. 7:2 act of 1964.33 while the united nations (“u.n.”) has urged both nations to implement domestic laws that prohibit discrimination based on race,34 neither country has complied with the recommendation to date. 1. legal and social obstacles for foreigners in japan the japanese constitution today is based off the macarthur draft, which was proposed post-wwii after the potsdam declaration.35 the macarthur draft originally presented to the japanese government in february 1946 included the following language: all natural persons are equal before the law. no discrimination shall be authorized or tolerated in political, economic or social relations on account of race, creed, sex, social status, caste or national origin.36 in addition, there was another article present in the original macarthur draft—article xvi—which provided equal 33 civil rights act of 1964, pub. l. no. 88-352, 78 stat. 241 (codified as amended in scattered sections of 2 u.s.c., 28 u.s.c., and 42 u.s.c.). 34 committee on the elimination of racial discrimination considers report of japan, united nations human rights office of high commissioner (aug. 21, 2014), http://www.ohchr.org/en/newsevents/pages/displaynews.aspx?newsid= 14957 [https://perma.cc/v8vn-wc86] (“[u]nder the convention state parties were required to enact legislation specifically to combat racial discrimination . . . [c]omprehensive anti-discrimination legislation was therefore needed.”); u.n. expert on racism urges the republic of korea to adopt a comprehensive anti-discrimination law, united nations human rights office of high commissioner (oct. 9, 2014), http://www.ohchr.org/en/newsevents/pages/displaynews.aspx?newsid= 15147&langid=e [https://perma.cc/2mnh-e5jf]. 35 kyoko inoue, macarthur’s japanese constitution: a linguistic and cultural study of its making 16, 301 (1991). 36 id. at 305. no. 4:410] the status quo of racial discrimination 423 protection to non-japanese people in japan (“aliens shall be entitled to the equal protection of law”).37 however, the japanese government removed this provision during the drafting process.38 the current, official english version of article xiv of the japanese constitution instead reads: all of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.39 there is a critical difference between the first draft of the post-wwii japanese constitution and the current text of article xiv—the scope of individuals who benefit from the protection of the anti-discrimination clause. the original draft tried to cover everyone, regardless of citizenship (“all natural persons”), whereas the final draft—and the law today—limits protection to “[a]ll of the people are equal under the law.”40 in japanese, this is read, “all (kokumin) are equal under the law”41 kokumin are only those who are japanese citizens or of japanese nationality.42 as a result, 37 id. at 306. 38 compare appendix two: the american draft of the constitution (the macarthur constitution) with nihonkoku kenpō [kenpō] [constitution] art. 14 (japan), translated in the constitution of japan, japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.h tml [https://perma.cc/k948-vmf9]. 39 nihonkoku kenpō [kenpō] [constitution] art. 14 (japan), translated in the constitution of japan, japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.h tml [https://perma.cc/k948-vmf9]. 40 id. (emphasis added). 41 satoko kogure, japan's new security regime and the rights of foreigners, zcommunications-znet (aug. 2, 2004), https://zcomm.org/znetarticle/japans-new-security-regime-and-the-rightsof-foreigners-by-satoko-kogure/ [https://perma.cc/jt5p-99gj] (emphasis added). 42 id. 424 columbia journal of race and law [vol. 7:2 “the constitution provides no legal basis for the protection of foreigners against discrimination.”43 according to professor hamano of ryukoku university, “although there have been attempts to understand such changes in the negotiations as cultural misunderstandings or failures of linguistic ability, such an interpretation is unconvincing. rather, from the very outset the japanese government strove to limit legal protections for the basic human rights of non-japanese.”44 to add to the gravity of the situation, the provision is “not considered by courts to be self-executing.”45 non-kokumin are excluded from the scope of protection even today. not only does japan lack a statute that effectively prohibits racial discrimination,46 but the japanese government limits the scope of protection to japanese citizens or nationals.47 the lack of protection to non-citizens is compounded by the fact that there are high barriers to naturalization. as japan is a jus sanguinis state, in which nationality is determined by blood, not by location of birth, a baby born in japan with at least one parent who is a japanese national receives japanese citizenship.48 however, a child born in 43 id. 44 sylvia brown hamano, incomplete revolutions and not so alien transplants: the japanese constitution and human rights, 1 u. pa. j. const. l. 415, 438 (1999) (citations omitted). 45 special rapporteur mission to japan, supra note 3, ¶ 11. 46 org. for econ. co-operation and dev., the price of prejudice: labour market discrimination on the grounds of gender and ethnicity, legal and institutional framework in force in 2007 129, https://www.oecd.org/els/emp/40881200.pdf [https://perma.cc/cq9nxh9j]. 47 kogure, supra note 41 (“however . . . the japanese government . . . phrased the subject of the constitution as ‘kokumin’, that is japanese citizens, or those of japanese nationality.”). 48 nationality law, no. 147 of 1950, (as amended by law no. 268 of 1952, law no. 45 of 1984, and law no. 89 of 1993), translated in japan ministry of justice, the nationality law, http://www.moj.go.jp/english/information/tnl-01.html [https://perma.cc/plc7-klbz]. see also japanese citizenship how to no. 4:410] the status quo of racial discrimination 425 japan but neither of whose parents is a japanese national must apply for citizenship separately.49 those who wish to become naturalized citizens in japan must reside in japan for at least five consecutive years (unless they are married to a japanese national), demonstrate good conduct, have never plotted against the japanese government, be financially stable, and renounce their previous citizenship.50 the citizenship status of children born out of wedlock where one of the parents is non-japanese presents a complicated situation for the child and is discussed in part iii of this note. even in cases where an immigrant has managed to acquire japanese citizenship, and therefore is clearly within the scope of protection against racial discrimination, there is no guarantee that the court and the government in japan will provide such protection to the individual.51 there are also exclusionary social structures in japan that distinguish between citizens and non-citizens including: registry systems exclude noncitizen residents from equal legal and social standing with their citizen counterparts; important laws, including those governing primary education for children in japan, are only applicable to ‘citizens,’ fostering a noncitizen underclass; ‘nationality clauses’ exclude noncitizens from employment opportunities far beyond the most sensitive government jobs that require security clearance; taxpayer-funded sports leagues . . . become japanese, just landed japan guide, https://www.justlanded.com/english/japan/japan-guide/visaspermits/japanese-citizenship [https://perma.cc/4gfk-h3vq]. 49 id. 50 id. 51 debito arudou, olaf karthaus, & ken sutherland, the otaru lawsuit information site, http://www.debito.org/otarulawsuit.html [https://perma.cc/w9g9-jwk9]. for a more complete discussion of this case, see part iii infra. 426 columbia journal of race and law [vol. 7:2 overtly refuse or restrict ‘foreign’ participants; japan’s visa regimes . . . systematically deny noncitizens equal constitutional protections.52 in 2006, the united nations special rapporteur published a report on “contemporary forms of racism, racial discrimination, xenophobia and related intolerance” in japan.53 in the report, the u.n. special rapporteur explained “there is racial discrimination and xenophobia in japan, and that it affects three circles of discriminated groups: the national minorities[;] . . . descendants of former japanese colonies . . . and chinese; foreigners and migrants from other asian countries and from the rest of the world.”54 he further noted “with concern that . . . there is no national legislation that outlaws racial discrimination and provides a judicial remedy for the victims.”55 japan’s failure to implement its obligations under the international convention on the elimination of all forms of racial discrimination (“icerd”) by enacting domestic laws prohibiting racial discrimination is also concerning.56 2. legal and social obstacles for foreigners in korea promulgated in 1948, one year after the japanese post-wwii constitution was enacted, the first draft of the korean constitution was written based on the weimar 52 debito arudou, tackle embedded racism before it chokes japan, japan times (nov. 1, 2015), http://www.japantimes.co.jp/community/2015/11/01/issues/tackleembedded-racism-chokes-japan/ [https://perma.cc/5yxr-r7vl]. 53 special rapporteur mission to japan, supra note 3, at 2. 54 id. 55 id. 56 see generally comm. on the elimination of racial discrimination, concluding observations on the combined seventh to ninth periodic reports of japan, u.n. doc. cerd/c/jpn/co/7-9 (sep. 26, 2014). no. 4:410] the status quo of racial discrimination 427 system and pre-wwii japanese constitution.57 even today, after the last amendment of the constitution in 1987,58 there is no section in the korean constitution that specifically deals with racial discrimination. the one section that deals with discrimination generally is article 11 [equality], which reads: all citizens shall be equal before the law, and there shall be no discrimination in political, economic, social, or cultural life on account of sex, religion, or social status.59 similar to japan’s kokumin, the korean text of article 11 explicitly provides protection for kukmin, which can be translated as korean citizens or individuals of korean nationality.60 while korea has some domestic laws that make it illegal to discriminate on the basis of race, “there is no specific law beyond the [national human rights commission act] that aims at securing human rights in general.”61 the national human rights commission act (“nhrca”), 57 hunbeopjejeong, naver, http://terms.naver.com/entry.nhn?docid=920160&cid=42958&categoryid= 42958 [https://perma.cc/tzg6-sgtu]. 58 id. the most recent constitutional amendment, the ninth amendment, took place in october 29, 1987. see daehanminkuk hunbeob [hunbeob] [constitution] art. 11 (s. kor.) translated in constitution of the republic of korea, oct. 29, 1987, http://korea.assembly.go.kr/res/low_01_read.jsp?boardid=1000000035 [https://perma.cc/dxf5-yhfe] (dating the present version as valid as of oct. 29, 1987). 59 daehanminkuk hunbeob [hunbeob] [constitution] art. 11 (s. kor.) translated in constitution of the republic of korea, oct. 29, 1987, http://korea.assembly.go.kr/res/low_01_read.jsp?boardid=1000000035 [https://perma.cc/dxf5-yhfe]. 60 see chaihark ham & sung ho kim, making we the people: democratic constitutional founding in postwar japan and south korea 267–68 (2015) (defining kukmin). 61 org. for econ. co-operation and dev., supra note 46, at 142. 428 columbia journal of race and law [vol. 7:2 enacted on may 24, 2001,62 defines the phrase “discriminatory act violating the right to equality” as acts committed “without reasonable grounds, on the grounds of sex, religion, disability, age, social status, region of origin . . . state of origin, ethnic origin, physical condition such as features, marital status . . . race, skin color, ideology or political opinion, record of crime whose effect of punishment has been extinguished, sexual orientation, academic career, medical history, etc.”63 and covers both korean citizens and foreign residents within korea.64 the act established the national human rights commission of korea (“nhrck”), an independent organization looking over all human rights related issues arising out of korea.65 despite the act, the u.n. special rapporteur in october 2014 “urged the republic of korea to enact a wideranging anti-discrimination law to build on the progress made in addressing the issue of racism and xenophobia, in view of the country’s history of ethnic and cultural homogeneity.”66 he further pointed out that there have been 62 national human rights commission act, act no. 6481, may 24, 2001, amended by act. no. 11413, mar. 21, 2012, ch. 1 art. 2, (s. kor.) translated in korean legislation research institute online database, http://elaw.klri.re.kr/eng_service/lawview.do?hseq=37724&lang=eng [https://perma.cc/myt9-lzb9]. 63 id. 64 national human rights commission act, act no. 6481, may 24, 2001, amended by act. no. 11413, mar. 21, 2012, ch. 1 art. 4, (s. kor.) translated in korean legislation research institute online database, http://elaw.klri.re.kr/eng_service/lawview.do?hseq=37724&lang=eng [https://perma.cc/myt9-lzb9]. 65 national human rights commission act, act no. 6481, may 24, 2001, amended by act. no. 11413, mar. 21, 2012, ch. 1 art. 3, (s. kor.) translated in korean legislation research institute online database, http://elaw.klri.re.kr/eng_service/lawview.do?hseq=37724&lang=eng [https://perma.cc/myt9-lzb9]. 66 un expert on racism urges the republic of korea to adopt a comprehensive anti-discrimination law, united nations hum. rts off. of high commissioner (oct. 9, 2014), http://www.ohchr.org/en/newsevents/pages/displaynews.aspx?newsid=1 5147&l [https://perma.cc/46bf-g5cd]. see also choe sang-hun, south koreans struggle with race, ny times (nov. 1, 2009), no. 4:410] the status quo of racial discrimination 429 “isolated incidents of private acts of racism, racial discrimination and xenophobia,” ranging from a case in which “a naturalized korean woman was refused access to a public bath, as well as cases of taxi drivers turning in to the police customers who do not look korean, and of shop attendants expressing derogatory attitudes to foreign customers.”67 racial discrimination is prevalent throughout the nation, and hence measures should be taken to safeguard foreign population in korea from such acts. constitutional protections are limited to kukmin, making naturalization a barrier to receiving constitutional protection against racial discrimination. there are three ways through which foreigners may acquire korean citizenship—namely, general, simple, and special naturalization.68 while each naturalization process has different requirements an applicant has to meet, all applicants are required to possess a basic understanding of the korean language.69 similar to japan, the principle of jus sanguinis governs, and having some kind of a connection to the korean bloodline, by having an ethnic korean parent, is a huge plus, if not a de facto requirement, to obtaining a korean citizenship.70 iii. contemporary cases of racial discrimination in japan both japan and korea lack effective antidiscrimination laws to adequately protect racial minorities http://www.nytimes.com/2009/11/02/world/asia/02race.html?_r=0 [https://perma.cc/mjr6-hhf4]. 67 id. 68 nationality act, act. no. 8892, mar. 14, 2008, amended by act. no. 12421, mar. 18, 2014, art. 5, (s. kor.), translated in korean legislation research institute online database, http://elaw.klri.re.kr/eng_service/lawview.do?hseq=32444&lang=eng [https://perma.cc/2dwu-2ayl]. 69 id. 70 id. 430 columbia journal of race and law [vol. 7:2 regardless of citizenship. in japan, the few legal protections in place are frequently inadequately applied. not only are non-citizens without protective laws they can rely on when they are discriminated against based on race, but those who are citizens are also discriminated against, despite the presence of the anti-discriminatory provision within the constitution. part iii of this note describes several incidents of racially discriminatory practices in japan to demonstrate the consequences of lacking adequate anti-discrimination laws. the first two subsections summarize two landmark cases in japan. the third subsection identifies some of the ethnic and racial groups in japan who are subjected to discriminatory practices and explains in what manner each group is discriminated by the majority of the japanese population. a. the nationality act of 1984 and citizenship grant issue in june 2008, a japanese supreme court decision under article xiv of the japanese constitution granted plaintiffs the right to citizenship even though they were the children of mixed races born out of wedlock.71 the plaintiffs, a group of mixed-raced children to a japanese father and filipina mother, claimed the nationality act of 1984, promulgated by the japanese diet, violated article xiv of the constitution.72 the act provided that “among children acknowledged after birth, legitimated children are allowed to acquire japanese nationality by making a notification whereas non-legitimated children are required to follow the 71 saikō saibansho [sup. ct.] jun. 4, 2008, 2006 (gyo-tsu) no. 135, 62 saiko sahbansho minji hanreishu [minshu] no. 6, ¶ 4 (japan), translated in supreme court of japan’s website, http://www.courts.go.jp/app/hanrei_en/detail?id=955 [https://perma.cc/gqy7-v4zt]. 72 id. at ¶¶ 1, 3. no. 4:410] the status quo of racial discrimination 431 naturalization procedure.”73 the court observed, “article 3, para.1 of the nationality act does not allow a child born out of wedlock to a japanese father and a non-japanese mother to acquire japanese nationality just by satisfying the requirement of being acknowledged by the father after birth, but it allows acquisition of japanese nationality only when legitimation has taken place.”74 the plaintiffs argued that this provision created two distinct classes of individuals based on the marital status of one’s parents, and this was the type of equal protection violation barred by the constitution.75 while on the surface the case seems to be a victory for plaintiffs, the reasoning the japanese supreme court provided in ruling for plaintiffs is worrisome and may have adverse consequences to future equal protection claims against the diet. the standard of review used by the supreme court to evaluate the legislative branches was that of “reasonable relevance.”76 despite the fact that the case involved a distinction based on race, the standard used by the japanese supreme court is less exacting than the standards of “heightened” or “strict” scrutiny used by courts in the united states adjudicating the constitutionality of laws making similar distinctions. the supreme court ruled that the nationality act of 1984 was no longer constitutional because, while at the time when the legislation was enacted, the diet had a reasonable basis for requiring parents of mixed-race children to be married in order for the child to acquire citizenship, the rationale justifying the distinction was no longer valid.77 73 id. (yookoo, j., tsuno, j., and furuta, j., dissenting). 74 id. at ¶ 4. legitimation refers to marriage of the parents. 75 id. 76 id. 77 see saikō saibansho [sup. ct.] jun. 4, 2008, 2006 (gyo-tsu) no. 135, 62 saikō sahbansho minji hanreishu [minshu] no. 6, ¶ 4 (japan), translated in supreme court of japan’s website, http://www.courts.go.jp/app/hanrei_en/detail?id=955 [https://perma.cc/gqy7-v4zt]. 432 columbia journal of race and law [vol. 7:2 the principle announced in the case weakens the power of judicial review because it is too easy for the government to provide a reasonable basis supporting various forms of discrimination.78 while it is true that the united states also recognizes that the constitutional rights of individuals are not absolute, the supreme court of the united states requires the government to cite a ”compelling state interest,”79 a difficult standard for the government to meet, when the rights of a suspect class are threatened by in relevant part, the court stated: in light of the aforementioned trends in the nationality law systems enforced in foreign states at the time of introduction of the provision of said paragraph, a certain reasonable relevance can be found between the provision that requires legitimation in addition to acknowledgment for granting japanese nationality, and the legislative purpose mentioned above. (c) however, since then, along with the changes in social and economic circumstances in japan, the views regarding family lifestyles, including the desirable way of living together for husband and wife, as well as those regarding parent-child relationships have also varied, and today, the realities of family life and parent-child relationships have changed and become diverse, as seen by the fact that the percentage of children born out of wedlock in the total number of newborn children has been increasing. in combination with these changes in the socially accepted views and social circumstances, as japan has recently become more international and international exchange has been enhanced, the number of children born to japanese fathers and non-japanese mothers has been increasing. id. (emphasis added). 78 david waters, cases in constitutional law, waseda university (fall 2013). 79 regents of univ. of cal. v. bakke, 438 u.s. 265, 300 (1978). no. 4:410] the status quo of racial discrimination 433 legislative action.80 in its opinion, the japanese supreme court did not include any references to american constitutional law cases, despite referring to many european cases and the abundance of american case law on point. b. the case of arudou debito the case of arudou debito, also known as the otaru hotsprings case, addressed the rare situation of a japanese citizen, clearly within the scope of protection of article xiv of the japanese constitution, who was not ethnically japanese.81 a japanese hot spring (onsen) in the city of otaru, hokkaido, put up signs saying “japanese only” and refused entry to all foreigners in 1993.82 while people complained, the otaru city government “ignored the situation, [maintaining that although] this activity was discrimination, [the city government] had no power to stop it.”83 other local onsens, as well as “other businesses, 80 david waters, cases in constitutional law, waseda university (fall 2013). 81 arudou v. earth cure, 3 (sapporo h. ct., sept. 16, 2004), translated in timothy webster, arudou v. earth cure: judgment of november 11, 2002, sapporo district court, 9 asian-pac. l.& pol’y j. 297 (2008). the case is not officially published, however the plaintiff has made a copy of the decision available online in the original japanese at http://www.debito.org/kousaihanketsu.html [https://perma.cc/e4jmqygc]. for more information on the case, see also arudou debito, olaf karthaus, & ken sutherland, overall information in brief, the otaru lawsuit information site, http://www.debito.org/otarulawsuit.html#overall [https://perma.cc/5wqvr2dy]; arudou debito, japanese only: the otaru hotsprings case and discrimination against “foreigners” in japan, the asia-pac. j.: japan focus (nov. 18, 2004), http://apjjf.org/-arudoudebito/1743/article.html [https://perma.cc/dwc3-erqk]. 82 arudou debito, japanese only: the otaru hotsprings case and discrimination against “foreigners” in japan, the asia-pac. j.: japan focus (nov. 18, 2004), http://a pjjf.org/-arudoudebito/1743/article.html [https://perma.cc/dwc3-erqk]. 83 id. 434 columbia journal of race and law [vol. 7:2 including bars, restaurants, ramen shacks, even a barber and a sports shop, in other towns” also started putting up “japanese only” signs.84 in 1999, caucasian individuals of several multinational families were refused entry to the otaru onsen by one of the managers of the bathhouse.85 among those denied entry was a human rights activist named david c. aldwinckle, who would later become a naturalized japanese citizen and adopt the name arudou debito.86 despite the fact that all the caucasians in the group had japanese spouses, managers prevented them from entering the onsen because they were “‘foreign’ by appearance.”87 the rationale for denying them entry was that russian sailors would disobey their bathing rules and drive away japanese customers.88 even though the group informed the manager that none of them were russian, the manager replied that refusing only russians would be blatant discrimination, so instead they refuse service to all foreigners “equally.”89 when the group asked about their mixed-raced children, the manager of the onsen responded that “[a]sian-looking kids can come in. but we will have to refuse foreign-looking ones.”90 the onsen managers also initially allowed a chinese person in the group to enter the onsen, because they were deciding who is foreign by individual’s appearances—by how “japanese” they looked. the onsen managers were allowing entry to “foreigners who 84 id.; see also arudou debito, the rogue’s gallery, debito.org, http://www.debito.org/roguesgallery.html [https://perma.cc/63rk-cazq ] (displaying a collection of photographs of places in japan which exclude or restrict non-japanese customers). 85 arudou, supra note 82. 86 id. 87 id. 88 id. 89 id. 90 id. no. 4:410] the status quo of racial discrimination 435 look[ed] japanese, but bar[ring] japanese who look[ed] foreign.”91 in 2000, when david aldwinckle returned to otaru as arudou debito with proof of naturalization, one onsen named yunohana still refused him entry because he “still [did not] look japanese.”92 after this incident, he sued the onsen and the otaru city government, but received mixed results. the sapporo district court held yunohana onsen culpable, and ordered that the onsen pay ¥1,000,000 (almost $10,000) to each of the three plaintiffs.93 the court did acknowledge that barring certain individuals from entering the facility due to their “race, skin color, descent, ethnic origin or racial origin,” constituted “acts of racial discrimination that ought to be eliminated.”94 however, rather than ruling that racial discrimination itself is wrong and should be banned, the court held that the actions by yunohana onsen were illegal because the onsen’s discriminatory practice “transcended the boundaries of socially-acceptable rational discrimination.”95 this approach by the court is concerning, since rather than outright holding that racial discrimination is illegal, court instead noted that there may be a category of racial discrimination that may be within “the boundaries of socially-acceptable rational discrimination”96 and therefore permissible. the sapporo high court affirmed the district court’s holding and the japanese supreme court similarly 91 arudou, supra note 82. 92 id. 93 id. see also mark magnier, japanese court ruling favors foreigners, l.a. times (nov. 12, 2002), http://articles.latimes.com/2002/nov/12/world/fg-bubbles12 [https://perma.cc/z9uh-wm8j]. 94 arudou v. earth cure, 3 (sapporo h. ct., sept. 16, 2004), translated in timothy webster, arudou v. earth cure: judgment of november 11, 2002, sapporo district court, 9 asian-pac. l.& pol’y j. 297, 318–19 (2008) (quoting webster’s translation). 95 arudou, supra note 82. 96 id. 436 columbia journal of race and law [vol. 7:2 affirmed the lower courts’ rulings.97 although “[s]imilar cases exist throughout japan . . . in no case have the public authorities prosecuted the owners of the establishments concerned.”98 c. treatment of other ethnic groups in japan the u.n. special rapporteur report on racism in japan identified the following groups as victims of racial discrimination and xenophobia in japan: the buraku, the ainu, the koreans, and other foreigners, including migrant workers.99 1. the buraku buraku refers to a class of individuals who were placed at the bottom of the caste-like system that was in place in the late nineteenth century.100 while the diet adopted a law in 1969 aimed at improving the living environment of buraku people, the law was terminated in 2002 as the government determined the situation had improved.101 yet, the discriminatory mentality against buraku people persists. even today, private detectives are known to sell what are called “buraku lists,” which include information on buraku community locations, names of households, etc., to companies and potential marriage partners.102 upon receiving the list, companies and potential marriage partners use it for discriminatory purposes.103 the government is trying to fight discrimination against buraku through “human rights education policies promoted by the 97 timothy webster, arudou v. earth cure: judgment of november 11, 2002, sapporo district court, 9 asian-pac. l.& pol’y j. 297, 299 n.13 (2008). 98 special rapporteur mission to japan, supra note 3, at ¶ 64. 99 id. ¶ 14. 100 id. ¶ 7. 101 id. ¶ 10. 102 id. ¶ 18. 103 id. ¶ 18. no. 4:410] the status quo of racial discrimination 437 ministry of education, which include[] the teaching of human rights at school and the training of teachers.”104 2. the ainu the ainu are native occupants of hokkaido, the northernmost island of the japanese archipelago. while there are reportedly 24,000 ainu in japan according to a 2007 census, the u.n. special rapporteur report suspects there are many more, as most ainu are said to conceal their identity to avoid discrimination.105 after 1867, the japanese government exploited the ainu and hokkaido, and adopted “an official policy of assimilation of the ainu and expropriated their land, so that ainu society and culture was fatally damaged.”106 some statistics demonstrate the pattern of discrimination against the ainu. for example, only “16.1 percent of ainu who finish high school continue into higher education, as opposed to the general average of 34.5 percent in the area.”107 in 1997, the japanese diet enacted a law for the promotion of the ainu culture.108 the law was criticized by the special rapporteur as failing to promote the human rights of the ainu people, as the law failed to recognize the ainu population as indigenous people and solely focused on the promotion of the ainu culture.109 moreover, even with regards to culture itself, the ainu are severely restricted in 104 special rapporteur mission to japan, supra note 3, ¶ 16. 105 id. ¶ 22. 106 id. ¶ 5. 107 id. ¶ 24. 108 aini shinpou[act for the promotion of ainu culture & dissemination of knowledge regarding ainu tradition] law no. 52 of 1997 (japan), translated in masako yoshida hitchingham, act for the promotion of ainu culture & dissemination of knowledge regarding ainu tradition, 1 asian-pac. l. & pol’y j. 11 (2000), http://blog.hawaii.edu/aplpj/files/2011/11/aplpj_01.1_hitchingham_masa ko.pdf [https://perma.cc/5xgl-e4yz]. 109 special rapporteur mission to japan, supra note 3, ¶ 49. 438 columbia journal of race and law [vol. 7:2 what they can and cannot do. as of 2007, only ten percent of the ainu live on their ancestral land, and they are “greatly limited in their freedom to fish salmon, their ancestral traditional food: they can only fish for a very limited amount of salmon and only in designated areas where the salmon is of poor quality.”110 3. the koreans among roughly four to six million koreans were drafted to japan as slave laborers during world war ii.111 a majority were repatriated, and “a little less than 650,000” were left in japan in 1946.112 among such koreans left behind in japan are the koreans in the utoro district of japan, who were drafted there during world war ii to build a military airport.113 when the war ended and the japanese government abandoned the airport project, the population was also forgotten and abandoned.114 the “sanitary conditions of utoro are deplorable: a considerable number of families have no running water, and the district has no channels to evacuate water, which often provokes floods . . . the poor existing basic infrastructures were built by the inhabitants: public authorities never came to this area.”115 korean inhabitants of utoro are also subject to “constant threat of expulsion,” as the kyoto district court and the osaka high court sided with the real estate agent who purchased the land from the wartime airport contractor without providing notice to dwellers who have lived in the 110id. ¶ 45. 111 john haberstroh, in re world war ii era japanese forced labor litigation and obsticles to international human rights claims in u.s. courts, 10 asian am. l. j. 253, 255 (citing donald macintyre, wwii: imperial japan on trial, asiaweek, nov. 15, 1996, at 36). 112 sonia ryang, the north korean homeland of koreans in japan, in koreans in japan: critical voices from the margin 32, 33 (sonia ryang ed., 2000). 113 special rapporteur mission to japan, supra note 3, ¶ 54. 114 id. 115 id. no. 4:410] the status quo of racial discrimination 439 area for over sixty years.116 the courts failed to “recognize any right of the utoro people on the land where they were brought by the japanese authorities,” and they further failed to “indicate any date for the expulsion.”117 the biggest problem for descendants of ethnic koreans drafted to utoro during wwii, as well as other koreans also forcefully brought to japan during that period, is that their citizenship status today remains unclear. many of them have been living in japan for over sixty years, but do not have japanese citizenship. an excerpt from the u.n. special rapporteur report illustrates this point well: another problem of the korean minority in general is the lack of access to pension rights. koreans of the first generation who came to japan have worked for years as japanese citizens, having acquired the japanese nationality under the colonial rule. in 1952, the japanese nationality was withdrawn from those koreans. in 1959, the social security system was established and japanese nationality was required for joining it, thereby excluding koreans who had worked for years as japanese. the government of japan removed this nationality clause only in 1982, after having ratified the [international covenant on civil and political rights] and [international covenant on economic, social and cultural rights]. despite the fact that compensatory measures have been taken to integrate in the system those who were discovered not to be entitled not due to their fault – as for the okinawa residents after 1972 or the returned japanese children left behind when japan withdrew from china 116 id. ¶ 55. 117 id. 440 columbia journal of race and law [vol. 7:2 after the end of the second world war – no comparable measures have been taken for koreans who had lived in japan under the colonial rule. an estimated 50,000 koreans who are now more than 70 years old and in their working years were prevented from joining the system because of the nationality clause are excluded from any pension benefit. many of them are obliged to work to survive.118 the japanese nationality requirement to “become civil servants in the public administration, including at the municipal level” is also a hindrance to promoting fairness, as the requirement prevents many foreigners, “especially koreans who were born in japan,” from assuming government positions.119 4. other foreign and migrant workers making matters worse for foreigners and japanese nationals who are not of the japanese race, such as arudou, are public authorities who “do not take appropriate measures to fight against xenophobia and discrimination against foreigners. on the contrary, they play a role in encouraging such discrimination.”120 examples of discriminatory practices committed by public authorities in 118 id. ¶ 56. there are other serious discriminatory practices as well, ranging from korean students having no automatic eligibility to take the university entrance examination, the government failing to provide financial support to korean schools, to korean children suffering insults and getting their national dresses ripped or cut in public during daytime “simply because they are koreans.” id. ¶ 58. 119 special rapporteur mission to japan, supra note 3, ¶ 66. according to the u.n. special rapporteur’s report, “certain local governments, such as osaka and kawasaki and quite a number of municipalities have suppressed this nationality clause, even if obstacles remain for foreigners concerning promotion to higher positions.” id. ¶ 66. 119 id. ¶ 60. 120 id. no. 4:410] the status quo of racial discrimination 441 japan include: making discriminatory statements against foreigners, disseminating posters and flyers in which foreigners are compared to thieves, tolerating posters calling for the expulsion of foreigners, and exaggerating the role of foreigners in criminal offences in press releases by the national police agency, thereby creating the wrong impression that foreigners hold much responsibility for the country’s security problems.121 in reality, “in 2003 the proportion of criminal offences committed by foreigners was only 2.3 per cent.”122 additionally, several policies designed by the government reinforce negative stereotypes against foreigners. for instance, in 2004, the immigration bureau of japan “created an e-mail reporting system on its website inviting citizens to anonymously inform on any ‘suspected illegal migrant,’” without providing a guideline as to what constitutes such a migrant.123 the only way citizens could suspect if a person was an illegal migrant or not was by “their ‘foreign appearance’” (on the basis of racial or linguistic characteristics).124 the u.n. report referred to this e-mail reporting system as a “direct incitement to racial profiling and xenophobia.”125 laws must be better tailored and implemented more thoughtfully to avoid reinforcing a discriminatory mentality. these examples demonstrate that the current approach taken by the japanese government to tackle discrimination is inadequate. public officials and the government themselves are reinforcing the discrimination through action and policy without considering the consequences of such policies.126 121 id, ¶¶ 60–61. 122 id. ¶ 60. 123 id. ¶ 61. 124 special rapporteur mission to japan, supra note 3, ¶ 61. 125 id. ¶ 62. 126 id. 442 columbia journal of race and law [vol. 7:2 iv. contemporary cases of racial discrimination in korea this section focuses on contemporary examples of discrimination in korea. first, this section looks at stories of well-known individuals who have been treated unfairly due to their ethnicity. then this section shifts focus and identifies different ethnic and societal groups subject to prejudice and discrimination. a. the story of bonojit hussain not only does korea lack anti-discrimination laws which hold private perpetuators of racial discrimination accountable, but korea also fails to provide people with laws to protect themselves from racial discrimination by state actors. korea does provide certain liberty and privacy rights to non-citizens; these rights, however, are limited in scope, and will only be guaranteed if the court deems the violation by the government entity lacked rational basis and was arbitrary.127 this is vastly different from the situation in the united states where the combination of the civil rights act of 1964 and fifth and fourteenth amendments of the constitution work together to outlaw racial discrimination by both private and state actors.128 courts also review equal protection cases where distinctions are made based on race with strict scrutiny, the most exacting standard of review utilized by the courts.129 the story of bonojit hussain 127 see generally infra part v. 128 see generally civil rights act of 1964, pub. l. no. 88-352, 78 stat. 241 (codified as amended in scattered sections of 2 u.s.c., 28 u.s.c., and 42 u.s.c.); u.s. const. amends v, xiv. 129 see also bakke, 438 u.s. at 357 (“unquestionably we have held that a government practice or statute which restricts ‘fundamental rights’ or which contains ‘suspect classifications’ is to be subjected to ‘strict scrutiny’ and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available.”). no. 4:410] the status quo of racial discrimination 443 “highlight[s] the lack of a specific laws [sic] covering racial discrimination.”130 in the summer of 2009, bonojit hussain, an indian research professor at sungkonghoe university in seoul, korea, reported that a “neatly dressed korean man” who sat behind him, told him the following: “what a disgusting odor! you’re dirty!”131 when hussain asked the man why he was treating him this way, the perpetrator allegedly said, “you arab, you arab.”132 hussain also claimed the man also insulted his korean friend by asking her, “are you korean? are you happy to date a black man?”133 when they went to the police station, the police officer in charge of the incident asked the korean man, “why did you, such a gentleman in a nice suit, treat poorly a man who is already having a hard time making a living?” and then he asked hussain with apparent distrust, “how can someone born in 1982 be a professor already? what do you really do?”134 moreover, other police officers in the station used formal korean while speaking to the korean perpetrator, while using informal, “talk-down” korean to address hussain.135 the national human rights commission of korea explained that the police officer failed to fulfill his duty to 130 bryan kay, south korea’s racism debate, the diplomat (aug. 8, 2011), http://thediplomat.com/2011/08/south-koreas-racism-debate/ [https://perma.cc/gd4l-kk77]. 131 si-soo park, indian accuses korean of racial discrimination, the korea times (aug. 3, 2009), http://www.koreatimes.co.kr/www/news/nation/2009/08/117_49537.html [https://perma.cc/8gxv-kuwl]. 132 id. 133 id. 134 jihun lee, ingwonwi, injongchabyeol sagweone cheot gwongojochi, yeonhap news agency (jul. 14, 2010), http://www.yonhapnews.co.kr/society/2010/07/14/0701000000akr2010071 4084500004.html?source=rss [https://perma.cc/qd9z-s426]. 135 id. 444 columbia journal of race and law [vol. 7:2 treat everyone equally regardless of race, and therefore violated the victim’s right to equal protection.136 despite this, the commission merely gave the officer a warning, reasoning that the officer’s actions were not intentional.137 rather, the commission explained, the officer’s actions were customary in that they arose from racial and cultural prejudices prevalent in the society, and hence were not the fault of the individual officer.138 the explanation provided by the commission excuses individual wrongdoing because the entire society is also committing the wrongful act. although hussain’s incident was the first of its kind to be reported to the police, and he successfully filed a complaint of racial discrimination after the incident,139 the rapid increase in the number of foreign residents in korea140 makes it worrisome that similar incidents may take place in the future. b. treatment of other racial groups 136 id. 137 id. 138 id. 139 park, supra note 131. see also kay, supra note 130. this success was not without obstacles, however; when hussain tried to file a complaint against park, the police officers initially discouraged him from doing so, and “asked the two sides to apologize to each other.” park, supra note 131. hussain later revealed in an interview that he did not apologize because he did nothing wrong. park, supra note 131. 140 see kay, supra note 130 (noting that there are roughly 1.2 million foreign residents in korea). no. 4:410] the status quo of racial discrimination 445 1. mixed-race children, interracial marriage, and the need for diversity education141 in december 2015, a korean congressperson told an african international student in korea that the student’s skin color is the same as the color of a briquette.142 he later apologized through facebook, but the story went viral. in 2009 a survey was conducted which showed how necessary and important it is to educate koreans of the idea of multiculturalism and diversity. in the survey that questioned 1,725 elementary and middle school students in seoul and gyeonggi province, only 40 percent of them perceived children born out of international marriages as koreans. almost half of the students said they have difficulties in maintaining friendships with students from multicultural backgrounds. of them, 24.2 percent cited the difference in skin color as the reason for their problem with getting close to biracial children. it was followed by a fear of becoming an outcast among their fellow 141 in north korean prison camps, mixed-race babies between north korean women, who escaped from north korea and conceived with chinese men, are killed after they are sent back to north korea by the chinese government. babies are “killed by abandonment or being smothered with plastic sheets. two defectors later described burying dead babies, and two said they were mothers who saw their newborns put to death.” james brooke, n. koreans talk of baby killings, ny times (jun. 10, 2002), http://www.nytimes.com/2002/06/10/world/n-koreans-talk-ofbaby-killings.html?pagewanted=all [https://perma.cc/2qwn-zqcg]. 142 rep. kim moo-sung sorry for skin-color joke, korea times (dec. 18, 2015), http://www.koreatimes.co.kr/www/news/nation/2015/12/116_193519.html [https://perma.cc/xe85-v5yk]. 446 columbia journal of race and law [vol. 7:2 students with 16.8 percent and a feeling of embarrassment with 15.5 percent.143 a korean-american, married to greek-american wife, wrote about the racism her daughter was facing in a korean school: my 8-year-old daughter, who was born and raised in korea . . . and has never herself even left seoul metropolitan area, had in elementary school last month here in korea. her teacher told her to “go back to your own country” and accused her of being “western scum,” after she was (with some “pure” korean girlfriends) caught whispering in class. my daughter knows no other country but korea, and she is a loyal korean citizen. she sings the korean national anthem every morning in class with all the other students, and . . . is passionately loyal and patriotic to korea. she is culturally and in every other way emotionally korean. she (regrettably) knows no english nor speaks any other language but korean. so her teacher’s comments were incredibly bigoted, racist, and ignorant, especially in view of the fact that the other girls who committed the same infraction were not even reprimanded. i know from first-hand knowledge that my daughter’s experience is by a small fraction of the institutional racism and bigotry that mixed-blood, native-born children (and adults) such as herself experience here in korea.144 143 ji-hyun cho, biracial children shunned by classmates, the korea herald (mar. 30, 2010), http://www.koreaherald.com/view.php?ud=20090124000033. 144 zoltan paul jambor, sexism, ageism and racism prevalent throughout the south korean system of education, education resources information center (aug. 19, 2009), http://eric.ed.gov/?id=ed506242 [https://perma.cc/flh8-hw37] (quotation omitted). no. 4:410] the status quo of racial discrimination 447 these are but a few examples of the racial discrimination faced by people living in korea. some scholars have attributed blatant acts of racial discrimination, such as these, to the confucian culture of korea. while the korean society “has such deep roots in confucianism,” which became the “longstanding moral code of conduct,” the ideology “has no devised conduct for the treatment of foreigners.”145 since koreans act accordingly to the rules set by the confucius teachings, they lack guidance on how to treat foreigners, and in effect “foreigners are treated according to a set of different standards” than ethnic koreans.146 whether or not the insight about confucian ideology’s influence on korean society is true, the racially discriminatory views against korean women dating american men can be found in recent korean history.147 many korean women lived near the united states army camps and worked as prostitutes—koreans would call them disparaging names such as “western princess,” partly to hide the feeling of loss of masculinity associated with men losing their sisters to other men.148 two other reasons are proposed to explain why derogatory terms were used to describe korean women dating american soldiers. first, those women were “the material representation of the collapse of boundaries between ‘us’ and ‘them.’ derogatory terms such as ‘western princess’ (yanggongju), ‘western sexy girl’ (yangseksi), and ‘western whore’ (yanggalbo) highlight [those] women’s sexual liaisons with foreign men . . . and mark these women as outside the korean nation.”149 second, these women’s 145 id. 146 id. 147 jong-hyun park & byeong-wuk min, scapegoats of divided korea – korea photos’ view of korean women in the military camp town, 12 j. of basic design & art 152–53 (2011). 148 id. 149 sealing cheng, on the move for love: migrant entertainers and the u.s. military in south korea 63 (2010). 448 columbia journal of race and law [vol. 7:2 sexual relationships with foreigners “threaten[ed] the reproduction of the ‘pure’ korean nation for the future.”150 the latter rationale reflects how the children of korean women and american soldiers are viewed by other koreans to this day. the children are called “‘bastards of the western princess’ (yanggongju-ssaekki) and ‘darkies’ or ‘[n******]’ (kkamdungi)”151 and are “teased and discriminated against in school and have few job prospects other than in the entertainment industry or in sports.”152 children were often “abandoned as the [united states] soldiers left for their home country” and the “first multicultural children of korea were dubbed half-breeds.”153 in 2012, a major television broadcasting station aired a controversial show featuring a five-minute segment, titled “the shocking reality about relationships with foreigners.”154 the show, featured the case of american, chris golightly—who was sentenced to one year in prison and two years on probation for fraud against his former korean girlfriend155—and another couple, a white man and korean woman, displaying affection in public; the scene is narrated with the question “is their physical contact based 150 id. 151 id. 152 id. 153 so-young sung, the actual reality of interracial relationships, korea joongang daily (jun. 3, 2012), http://koreajoongangdaily.joins.com/news/article/article.aspx?aid=2954295 [https://perma.cc/p462-bte8]. 154 id. an upload of the video with english subtitles can be found here: noe’s korea unedited, mbc shocking truth about relationships with foreigners (reupload), youtube (jul. 25, 2012), https://www.youtube.com/watch?v=b09fxozvw4g [https://perma.cc/cu2a-lpv3]. 155 kyung-min kim, keuliseu, jeon yeochin sagi mit hyeobbageulo jing-yeog 1nyeon·jibhaeng-yuye 2nyeon seongo, mydaily (may 31, 2013), http://www.mydaily.co.kr/new_yk/html/read.php?newsid=20130531110217 1118 [https://perma.cc/2p3h-26n4]. no. 4:410] the status quo of racial discrimination 449 on trust?”156 the show, although “devoid of any relevant figures and facts,” purports to show that “an increasing number of korean women fall victim to english-speaking [w]hite men who say they ‘have no trouble meeting women in korea.’”157 what is more bewildering than the show itself, however, is the response provided by the deputy chief of the show. in responding to the infuriated reactions to the feature he commented, “i don’t understand what makes [the viewers of the show] angry . . . i watched the show several times and . . . we said ‘some’ foreigners make trouble. but why are all these foreigners making a fuss over it? maybe [it is] because they have a guilty conscience.”158 educating the korean population on racial diversity and respect for multiculturalism, while weaker than providing legal protection that would prohibit such conduct altogether, is seemingly a necessary first step in tackling the racial discrimination issue. the support for multicultural families act,159 enacted in 2011, provides legal basis for making available such education. article 5, entitled “enhancement of understanding of multi-cultural families” provides, “the state and local governments shall take measures, such as education and advocacy activities for understanding diverse cultures, as necessary for preventing 156 sung, supra note 153. (“during the segment, an anonymous korean woman says she was abandoned by her foreign boyfriend after she became pregnant. then another anonymous interviewee, a korean man who claims to run an online community called ‘make friends with foreigners,’ says one of his female friends turned out hiv positive after dating a caucasian man. the show ends by saying ‘it is now time that we form proper and wholesome relationships with the opposite sex.’”). 157 id. 158 id. 159 support for multicultural families act, act no. 8937, mar. 21, 2008 (as amended by act no. 9932, jan. 18, 2010), translated in ministry of government legislation, korean laws in english, http://www.moleg.go.kr/english/korlaweng?pstseq=58481 [https://perma.cc/w7dq-ulzh]. 450 columbia journal of race and law [vol. 7:2 social discrimination and prejudice against multi-cultural families and for encouraging members of society to acknowledge and respect the cultural diversity.”160 however, the act fails for a similar reason as the korean constitution, because it limits the scope of its application. the law only covers families, rather than individuals. additionally, it troublingly leaves the provision of multi-cultural education to the discretion of the state and local governments. as a result, the law is far too limited both in scope and impact to adequately address issues of racial discrimination in labor or business settings. c. racial discrimination against immigrants migrant workers and women—mostly from china and southeast asia—who come to marry korean men are the nation’s main sources of immigration.161 both groups of individuals are victims of racial discrimination. the u.n. special rapporteur mutuma ruteere visited korea in 2014 and highlighted the “plight of migrant workers in the agriculture and fishing sectors, who suffer tough working and living conditions, and generally work longer hours for less pay than their korean counterparts.”162 he told the press that, “as well as being denied their entitled share of the catch, non-korean fishermen are “often subjected to racist and xenophobic verbal and physical abuse by ship owners and captains.”163 the current regulations in korea 160 id. 161 south korea has serious problem with racism, u.n. envoy says, the japan times (oct. 6, 2014), http://www.japantimes.co.jp/news/2014/10/06/asia-pacific/social-issuesasia-pacific/south-korea-serious-problem-racism-u-n-envoysays/#.vpirypmlrd8 [https://perma.cc/t4t2-bl8d]. 162 u.n. racism envoy details ‘serious’ problems in south korea, the straits times (oct. 6, 2014) http://www.straitstimes.com/asia/eastasia/un-racism-envoy-details-serious-problems-in-south-korea [https://perma.cc/jl4b-5l5v]. 163 id. no. 4:410] the status quo of racial discrimination 451 and, in particular the employment permit system, which allows foreign workers to access employment opportunities in korea, makes it difficult for migrant workers to change employment.164 marriage migrants also lack adequate protection against their husbands when they are to file for separation or divorce. the u.n. special rapporteur pointed that the women are “in a particularly vulnerable situation, as many are afraid to report domestic violence for fear of losing their residence permit.”165 d. racial discrimination among businesses one of the most serious problems with racial discrimination in the business context is the lack of antidiscrimination laws that criminalize discriminatory acts. two examples illustrate the dire consequences of having no legal protections against racial discrimination from businesses. in 2011, a naturalized korean, formerly from uzbekistan, was denied entry to a public bath house in korea.166 the bathhouse explained that they had implemented a policy because local koreans disliked taking bath with non-koreans, and denied entry despite the fact 164 id. 165 id. marriage migrants incidentally forged a significant demographic change. the number of “multi-ethnic” children born to mixed marriages rose from just over 44,000 in 2007, to nearly 200,000 by 2013. id. moreover, in rural areas, where most mixed marriages take place, some projections suggest forty-nine percent of all children will be multiethnic by 2020. id. 166 ah-young chang, ‘pibusaeg daleumyeon chul-ibgeumji’...mogyogtang injongchabyeol, ytn (oct. 14, 2011), http://www.ytn.co.kr/_ln/0115_201110140925511496 [https://perma.cc/v8fj-b42x]. 452 columbia journal of race and law [vol. 7:2 that she was a korean citizen. a bathhouse that did allow for entry to foreigners lost all its ethnic korean customers.167 in 2014, a pub in seoul put up a sign saying “we apologize but, due to ebola virus we are not accepting africans at the moment. [sic]”168 when a caucasian told the workers at the pub that he was south african, however, they allowed him to enter.169 the pub was not at all clear as to “how [it] planned to judge whether a person was african.”170 after a photograph of the signs went viral on social media, the pub took down the signs.171 in these situations, the victims of such racially discriminatory and offensive acts have no legal recourse. the police officer called to the scene at the bathhouse merely told the woman to look for another bathhouse that allowed entry to foreigners, and there was no legal basis to prosecute the owner of the bathhouse.172 these examples of racial discrimination in korea highlight the need for more robust anti-discrimination laws and legal barriers to discrimination. the united states not only employs civil statutes to combat private acts of discrimination, but also has a high standard of review for governmental acts of discrimination used by courts. as 167 id. 168 tae-hoon lee, jr pub says apology not enough over racist ban on ‘africans’, the korea observer (aug. 9, 2014), http://www.koreaobserver.com/jr-pub-says-apology-not-enough-over-racistban-on-africans-23154 [https://perma.cc/4fnm-b56c]. 169 david boroff, signs outside s. korean pub ban africans over ebola, ny daily news (aug. 18, 2014), http://www.nydailynews.com/lifestyle/signs-s-korean-pub-bans-africans-article-1.1907500 [https://perma.cc/xm5y-cjuu]. 170 dong-chan jhoo, itaewon pub rejects black customers over ebola, korea times (aug. 17, 2014), http://www.koreatimes.co.kr/www/news/world/2014/08/182_163037.html [https://perma.cc/5pm6-49zu]. 171 id. 172 chang, supra note 166. no. 4:410] the status quo of racial discrimination 453 discussed later in this note, korea can benefit from emulating some of the united states’ policies on antidiscrimination. v. comparing the legal systems of the united states, japan, and korea part v of this note compares the legal approach of the united states to anti-discrimination policy, with those of japan and korea. such a comparison is especially appropriate given how the united states’ constitution heavily influenced the formulation of the japanese constitution, which in turn helped shape the constitution of korea. this part illustrates the commonalities between the legal systems of japan and korea, whilst also analyzing the similarities and differences of those systems with that of the united states. the fact that neither korea nor japan has effective anti-discrimination laws has far reaching effects. one consequence of having no effective anti-discrimination laws is that law enforcement and government officials are able to justify potentially discriminatory conduct. both countries’ public officials excuse themselves of failing to prosecute perpetrators of discrimination by responding that there is no law they can rely upon to prosecute. the otaru onsen case and the bathhouse incident in korea are examples of such cases. this response is especially problematic when one considers that government officials are themselves often the perpetrators of racial discrimination—these individuals can simply excuse their own discriminatory actions by pointing to lack of legislation that forbids them.173 here is an excerpt 173 doudou diène (special rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance), implementation of general assembly resolution 60/251 of 15 march 2006 entitled “human rights council”, ¶ 37, u.n. doc a/hrc/5/10 (may 25, 454 columbia journal of race and law [vol. 7:2 from the u.n. special rapporteur report on japan that best illustrates the situation: most worryingly, elected public officials make xenophobic and racial statements against foreigners in total impunity, and affected groups cannot denounce such statements. for example, the governor of tokyo declared in 2000 that in tokyo “foreigners are repeating very vicious crimes … in case of a serious disaster, even a big riot could be expected”, and in 2001 that the “very pragmatic dna of chinese … [makes them] steal without hesitation in order to satisfy their desire.” the national government did not react to such statements. . . apart from a personal unwillingness to do so, the reason is their inability to prosecute those responsible of such acts on the basis of national law. however, it is important to note that the assembly members of a number of municipalities concerned, including the otaru assembly, despite having been requested by interested groups to draft and adopt ordinances which would allow the authorities under the local jurisdiction to prosecute such offences, and despite having the competence to do it, have not done so, referring to the 2007) (“in japan, except for the anti-discrimination provision contained in article 14 of the constitution, there are no other instruments that enforce the general principle of equality or sanction discriminatory acts committed by citizens, businesses or non-governmental organizations (ngos). hate speech is not a criminal offense, but rather a minor civil violation that may result in monetary compensation; yet only when it has been judged as defamation of individuals, but not of certain groups of people or minorities in general. besides, the country does not have specific hate crime laws.”). no. 4:410] the status quo of racial discrimination 455 difficulty to do it in the absence of a national law which contemplates such offences.174 the situation in korea is similar, as shown in part iv, in the context of consideration of racial discrimination among businesses. police frequently refer to the fact that there are no legal statutes that victims of racial discrimination can rely upon in order to prosecute the perpetuators, in explaining why they cannot help the victims.175 the fact that the korean court system, as well as the japanese court system do not apply a particularly heightened standard of review in cases concerning racial and/or nationality-based distinctions as is done in the courts of the united states, shows the differing attitudes of these legal systems. it would be a strong first step toward strengthening the opposition to discrimination if the legal systems of korea and japan started reviewing these cases with heightened scrutiny. that would send a message to the people that these discriminatory practices are serious violations of human rights that should be stopped. a. japan’s case law: application to private actors and effects of the convention on the elimination of all forms of racial discrimination in 1981, a japanese court ruled that article xiv of the japanese constitution applies only to government bodies.176 in plaintiff v. hachioji country club, the japanese court decided that the golf club could deny membership to a naturalized japanese citizen of korean ethnicity, solely based on the plaintiff’s ethnicity, because the said article of the japanese constitution ensuring equal protection to all citizens “only applies to government bodies 174 special rapporteur mission to japan, ¶ 62–64 (citations omitted). 175 chang, supra note 166. 176 plaintiff v. hachiōji country club, [tokyo dist. ct.] sept. 9, 1981, shō 54 (wa) no.10407, 1043 hanrei jihō 74. 456 columbia journal of race and law [vol. 7:2 [and] private entities such as golf courses are presumably immune.”177 private entities are “presumably immune”rather than simply “immune” in that, while private entities are default immune from article xiv, they may still be (and sometimes were) found to violate japanese tort law which makes it illegal to infringe someone’s human rights.178 there is no domestic law that “covers private acts of racial discrimination,” and so some japanese courts have “indirectly” applied international treaties such as convention on the elimination of all forms of racial discrimination (“cerd”) to find human rights as a right of an individual and used the tort law to fill in the gap.179 even after japan ratified cerd, however, japanese courts’ approaches were not in unison. indeed, there was a case very favorable to a foreigner, bortz v. suzuki,180 in which the court held a japanese jewelry store owner committed tort of infringing upon brazilian customer’s rights, namely the plaintiff’s “right to ‘dignity and honor.’”181 in holding for the plaintiff, the court noted that “if an act of racial discrimination violated a provision of cerd, and the state . . . did not take the measures that it should have, then one could, in accordance with article 6 of cerd, at the very least seek compensation for damages, or other measures for relief, against the state . . . due to the omission. thus . . . in a case involving a compensation claim against an individual for an illegal act, the text of cerd should be used as the 177 timothy webster, reconstructing japanese law: international norms and domestic litigation, 30 mich. j. int’l l. 211, 230 (2008). see also plaintiff v. hachiōji country club, [tokyo dist. ct.] sept. 9, 1981, shō 54 (wa) no.10407, 1043 hanrei jihō 74. 178 id. at 219 (noting the result of a case where a private entity was required to pay damages for a tort of racial discrimination). 179 id. at 217. 180 bortz v. suzuki, [shizuoka dist. ct.], oct. 12, 1999, 1045 hanrei taimuzu 216, translated in timothy webster, bortz v. suzuki, judgment of october 12, 1999, hamamatsu branch, shizuoka district court, 16 pac. rim l. & pol'y j. 631 (2007) [hereinafter webster, boritz v. suzuki]. 181 webster, supra note 177, at 219. no. 4:410] the status quo of racial discrimination 457 interpretive standard” in determining what kind of behavior is illegal.182 however, in a subsequent case, hyon yong ok v. chiba country club, as a commentator explains, the tokyo district court dismissed plaintiff’s cerd claim for two reasons: (1) that cerd only applies to governmental bodies, and so it did not apply to relations between private actors, which is what is at dispute in hyon case; (2) japan had included a reservation clause when it ratified cerd, which preserved the “freedom of assembly, association, and expression” for japanese citizens.183 such conflicting application of cerd’s domestic legal effect must have puzzled the cerd committee as well, as the committee requested a clarification of the matter—to which a japanese delegate responded that “international treaties did not establish the rights of individuals directly but laid down obligations which were binding on the states that had ratified them.”184 182 webster, boritz v. suzuki, supra note 180, at 652. 183 webster, supra note 177, at 233 (quotation omitted). see also hyon v. chiba country club [tokyo h. ct] jan 31, 2002, hei 7 (wa) no. 19336, hei 8 (wa) no. 6833, 1773 hanrei jihō 34, 36. 184 id. at 243 (quotation omitted). webster noted further, this, of course, is the classic view of international law: a set of obligations that binds states, but does not empower individuals to sue in the absence of additional implementing legislation. but, without implementing legislation, individuals have no legal recourse to counter acts of racial discrimination. this lacuna was not lost on the cerd committee members, one of whom noted that “the convention's provisions were not selfexecuting in japanese law. since national legislation had to be adopted to implement the convention, it was all the more necessary to enact appropriate legislation to criminalize all acts of racial discrimination.” nevertheless, the suggestion was unmistakable: japan should 458 columbia journal of race and law [vol. 7:2 after dismissing the cerd claim, the court instead decided that a golf club could deny membership to foreign plaintiffs because “the government could intervene in interpersonal relations only in the exceptionally rare situation in which the infringement of a person’s rights exceeded social norms in light of a particular constitutional provision.”185 in doing so, the court noted that “[a]s a preliminary matter . . . constitutional protections did, except in special circumstances, extend to foreigners.”186 according to the japanese supreme court that hyon court cites to, this is not to say that the word kokumin encompasses both noncitizens and citizens; rather, they are, at least technically, expanding the protection that was originally granted to japanese citizens only to non-citizens, in light of “(i) the principle of equality under the law as one of the basic political principles in the constitutions of modern democratic countries . . . and (ii) article 7 of the u.n. universal declaration of human rights which states that everyone should be equal under law.”187 but both the hyon court and the japanese supreme court emphasize that, “while article 14 of the constitution recognizes the principle of equality under the law, to each person exists economic, social, and other factual differences—hence, in legislation of law or application thereof, it is almost impossible to prevent inequality arises due to factual differences from existing among each person, and if such differences are deemed necessary and based on domesticate this critical principle of international law by enacting some kind of implementing legislation. id. (citations omitted). 185 webster, supra note 177, at 232. 186 id. 187 supreme court of japan, nov. 18, 1964, shō 37 (a) no. 927, 579. the quotation is a direct translation of the case by the author of this note. no. 4:410] the status quo of racial discrimination 459 reasonable grounds in light of general social norms, such inequality cannot constitute a violation of the article 14 of [japanese] constitution.”188 the court, in short, ruled that when it comes to a dispute between two private actors, the court could rarely intervene, and, as a consequence, essentially left it to the private actor’s discretion whether to discriminate or not.189 the court’s decision is especially surprising, given how the golf club “rationalized its regulation on the theories that foreign members (1) placed large bets on their golf games; (2) argued while on the green and generally behaved badly; and (3) played only with other foreigners, and avoided playing with the japanese. to minimize such nuisances, the club's executive council had passed a resolution to limit foreign membership.”190 the hyon court essentially ruled that all these rationales that the golf club provided, amounting to the club’s freedom of association, were reasonable in light of social norms, and the clubs ability to manage its own affairs trumped the plaintiff’s individual right.191 this is vastly different from how racially discriminatory practices, whether perpetuated by private or state actors, are severely regulated, if not entirely banned, in the united states. b. the lack of anti-racial discrimination laws and cases in korea in 2007, the u.n. committee on the elimination of racial discrimination (the “committee”) noted that it finds concerning the “emphasis placed on the ethnic homogeneity of [korea]” since such emphasis may become an “obstacle to the promotion of understanding, tolerance and friendship among the different ethnic and national groups living on its 188 id. the quotation is a direct translation of the case by the author of this note. 189 webster, supra note 177, at 232–33. 190 id. 191 id. at 232. 460 columbia journal of race and law [vol. 7:2 territory.”192 the committee also pointed out that the “references to concepts such as ‘pure blood’ and ‘mixedbloods’” by the korean delegation, and the widespread use of the terms in korean society, was alarming since it may entail “the idea of racial superiority.”193 the situation did not seem to get better, however, as in 2012, the same committee wrote in an updated report that recommends korea include in its legislation a “definition of racial discrimination which . . . guarantees equal rights to citizens and non-citizens.”194 in particular, the committee found the “[l]ack of relevant data and virtual absence of court cases on racial discrimination” in korea alarming, since it deemed “the very low number of complaints of acts of racial discrimination . . . may be the consequence particularly of lack of legislation prohibiting racial discrimination, or lack of confidence or awareness of possibilities for redress by victims.”195 given all the instances of racial discrimination in korea, the committee’s understanding of circumstances is more plausible than the explanation provided by the government that there is almost no racial discrimination in korea.196 the committee recommended that the korean government “undertake an in-depth analysis on the low number of complaints . . . and [record] data and statistics on the number of cases of racial discrimination reported to the relevant authorities.”197 the report did note the existence of a draft of one anti-discrimination bill, namely the 192 comm. on the elimination of racial discrimination, consideration of reports submitted by states parties under article 9 of the convention, concluding observations of the committee on the elimination of racial discrimination, republic of korea, ¶ 12, u.n. doc. cerd/c/kor/co/14 (aug. 17, 2007). 193 id. 194 cerd 2012 report on korea, supra note 3, ¶ 9 (emphasis added). 195 id. 196 id. 197 id. no. 4:410] the status quo of racial discrimination 461 discrimination prohibition act, which was discarded in 2008, and recommended that korea continue to pursue this act and amend the draft so that it would “provide for the criminal punishment of discriminatory acts” as the “existing legislation [lacks] criminal sanctions for incitement to racial discrimination and acts of racially motivated violence.”198 a number of other problems korea faces that the committee pointed out were as follows: widespread racial hate speech directed against non-citizens, discrimination against migrant workers, lack of grant of equal rights to foreign women in cases of divorce or separation from korean citizens, and a restricted definition of multicultural families such that multicultural families composed of two foreign partners, rather than one korean citizen and a foreigner, would not be excluded from benefits of multicultural families support act.199 although there are few cases on racial discrimination brought before the courts in korea, there is one case which provides some insight into how the courts will adjudicate cases involving equal protection rights for koreans and foreigners. in 2011, a case was brought in front of the constitutional court of korea regarding the constitutionality of certain requirements posed to foreigners working in korea by the immigration office. the complainant, a united states citizen who was teaching english in a korean university on an e-2 teaching visa, submitted a visa extension request to an immigration office when his visa was about to expire.200 the office responded through mail that he needed to submit a health certificate containing information regarding any history of drug use and hiv test results.201 the complainant refused to submit the document, arguing 198 id. ¶ 8. 199 id. ¶¶ 10, 11, 14, 17. 200 constitutional court [const. ct.], 2009hun-ma358, sep. 29, 2011, (volume 23, page 677, at 681) (s. kor.). 201 id. at 682. 462 columbia journal of race and law [vol. 7:2 the requirement constituted an irrational discrimination, invasion of privacy, and violation of human dignity.202 the immigration office requested that the complainant report to the office “to discuss certain matters regarding the visa extension” twice, but he failed to show up both times.203 the court determined that the immigration office’s health certificate requirement for visa extensions that included private information constituted “irrational discrimination that violates the complainant’s rights to equality.”204 however, the court ultimately found in favor of the immigration office because the office, rather than requiring the complaint to submit the health certificate, merely required him to be present at the office to discuss the matter further.205 since requiring presence alone was not the same as requiring the complainant to submit health documents, the court ultimately held for the immigration office.206 while the court’s opinion regarding the discriminatory requirement that only applies to foreign teachers rather than all teachers in korea—as only foreign teachers need to apply for visa extensions—is ultimately dicta, the court’s acknowledgement of a foreigner’s right to equality207 is praiseworthy. once again however, in its adjudication, the court applied a standard comparable to the united states’ rational basis standard, rather than a form of heightened scrutiny, despite the fact that the distinction drawn was based on race or nationality.208 202 id. 203 id. the quotation is a direct translation of the case by the author of this note. 204 id. at 686. the quotation is a direct translation of the case by the author of this note. 205 id. at 687. 206 constitutional court [const. ct.], 2009hun-ma358, sep. 29, 2011, (volume 23, page 677, at 687) (s. kor.). 207 id. at 686. 208 id. no. 4:410] the status quo of racial discrimination 463 the application of a relaxed standard of review, despite the fact pattern involving government entity’s discriminatory treatment of individuals based on their citizenship status, is similar—and hence similarly troublesome—to how the japanese court ruled in the nationality act of 1984 case. this case reveals how the standard to be used in evaluating some policies that make distinctions based on race, national origin, or citizenship status is unclear and undeveloped. in 1997, professor kyong-whan ahn, observed that while the korean constitution ought to provide legal protection from discrimination; the standard used by korean courts in such cases was “seriously under developed.”209 c. recommendations for japan and korea in light of the united states’ approach under the fifth and fourteenth amendments to the united states constitution, state actors cannot discriminate on account of race, unless a compelling governmental interest justifies the state’s action and the state narrowly tailors a law or regulation to accomplishing the compelling interest.210 this framework signals to the public that racial discrimination is a serious violation. furthermore, discriminatory practices by private actors, ranging from motels211 to restaurants,212 are prohibited by the civil rights act of 1964.213 209 benjamin wagner, it’s high time for south korean courts to recognize the multiethnic character of contemporary korean society, medium (may 20, 2015), https://medium.com/@benkwagner/it-s-high-timethat-south-korean-courts-recognize-the-multiethnic-character-ofcontemporary-korean-bf6ff142a49e [https://perma.cc/b4n2-8xcw]. 210 grutter v. bollinger, 539 u.s. 306, 308 (2003). 211 heart of atlanta motel v. united states, 379 u.s. 241 (1964). 212 katzenbach v. mcclung, 379 u.s. 294 (1964). 213 title ii of the civil rights act of 1964, 42 u.s.c. § 2000a (2012) (“all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of 464 columbia journal of race and law [vol. 7:2 in stark contrast, outside of tort liability, japan’s domestic laws lack anti-discrimination measures victims can use to hold private actors liable. japanese courts will only find liability if the discriminatory act is an “irrational act” in light of social norms, an unclear standard that the courts are in conflict with regards to the adjudication. moreover, even when the perpetuator of racial discrimination is a state actor, as seen in iii-a of this note regarding the nationality act of 1984 promulgated by the legislature, the japanese court applies a lower standard of review and allows the government to discriminate so long as there is a rational basis to the discrimination. similarly, the constitutional court of korea uses a lower standard of review, despite the case involving differential treatment based on nationality. while discrimination by any actor should be banned in order to fully protect minorities, discrimination carried out by state actors is particularly problematic in that it legitimizes private actors’ discriminatory practices.214 considering how, even in the united states, the ban on racial discrimination by private actors—with some limited exceptions—was introduced later than the ban on acts by state actors, it may be a good idea for japan and korea to implement anti-discrimination law in a gradual basis. perhaps the two countries could start by subjecting the state actors to a higher, stricter standard of scrutiny, thereby pronouncing to the public that racial discrimination is a serious matter and that the government will take grave any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.”). 214 the supreme court of the united states alluded to the possibility that state imposed segregation could shape social habits and cultures of individuals. cf green v. new kent county, 391 u.s. 430, 437– 38 (1968) (“school boards such as the respondent then operating statecompelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”) no. 4:410] the status quo of racial discrimination 465 measures to tackle it. this may help the public perception to change—that racial discrimination is really not okay. changed social norms may be particularly important in japan because the japanese court in hyon analyzed in the acts of discrimination against the backdrop of what were acceptable social norms. in korea, clarifying what what standard of scrutiny applies will help clarify the government’s opposition to discrimination based on race and/or nationality. like japan, korean courts could apply heightened standard of review in discrimination cases, and in doing so signal to the public that the government deems discriminatory practices serious violations of human rights that should be halted altogether. japan and korea should strive to increase public awareness of the benefits of a diverse society. besides a new approach in the courts, racial discrimination can be combated through education. a critical factor contributing to differences between the culture of the united states’ and those of japan and korea is the amount of racial diversity in the united states.215 despite globalization and increase in foreign travel, japan and 215 united states demographics by race: 79.96% white, 12.85% black, 4.43% asian, 0.97% amerindian and alaska native, 0.18% native hawaiian and other pacific islander, 1.61% two or more races; note that “hispanic is not included because united states census bureau considers hispanic to mean persons of spanish/hispanic/latino origin including those of mexican, cuban, puerto rican, dominican republic, spanish, and central or south american origin living in the united states who may be of any race or ethnic group; about 15.1% of the total united states population is hispanic.” see the world factbook: united states, central intelligence agency, https://www.cia.gov/library/publications/the-worldfactbook/geos/us.html [https://perma.cc/2cf8-fhkn]. japan demographics by race: 98.5% japanese, 0.5% korean, 0.4% chinese, 0.6% others. the world factbook: japan, central intelligence agency, https://www.cia.gov/library/publications/the-world-factbook/geos/ja.html [https://perma.cc/mhj8-6v98]. korea demographics by race: homogenous. see the world factbook: korea, south, central intelligence agency, https://www.cia.gov/library/publications/the-worldfactbook/geos/ks.html [https://perma.cc/7vuu-86u6]. 466 columbia journal of race and law [vol. 7:2 korea’s racial composition are such that almost the entire population is comprised of only people of a single ethnicity. while it is natural for people in the united states to think of interaction among different races, as they are exposed to people of different skin color on a daily basis, such is not the case in the two asian countries. precisely because of the mono-ethnic nature of their cultures, the two nations must strive even further to promote racial diversity, in particular through education of the population. in the united states, through various measures, including but not limited to education and social policies, there is an endorsement of diversity, which helps people realize it is a value that the society as a whole should promote. such efforts can be seen in college admissions and employment applications in the form of affirmative action.216 in the case of korea, such educational efforts could start by eliminating the use of terms such as “pure blood” or “mixedblood.”217 korea can expand and improve on the existing support for multicultural families act, by covering individuals as well as families, and have the central government provide clear guidance to local governments to ensure that multi-cultural education will be effectively conducted throughout the country in a uniform manner. similarly, japan would benefit from implementing educational policies in schools, emphasizing the benefits of embracing diversity and deemphasizing the notion of “purity” and “one-ness.” 216 see generally judson maclaury, president kennedy’s e.o. 10925: seedbed of affirmative action, society for history in the federal government, http://shfg.org/shfg/wp-content/uploads/2011/01/4maclaury-design4-new_layout-1.pdf [https://perma.cc/h9bc-zkdt]. 217 comm. on the elimination of racial discrimination, consideration of reports submitted by states parties under article 9 of the convention, concluding observations of the committee on the elimination of racial discrimination, republic of korea, ¶ 12, u.n. doc. cerd/c/kor/co/14 (aug. 17, 2007). no. 4:410] the status quo of racial discrimination 467 repeated exposure to such conceptualization will help citizens to recognize the benefits of diversity and work to counter historical notions of “purity” and “one-ness”—and eventually change the social conception of race. vi. conclusion japan and korea both lack adequate antidiscrimination laws. as these nations move forward they may seek to combat their aging populations, declining birthrates, and overall population decline with more relaxed immigration policies. however, legislation providing sufficient anti-discrimination laws and cultural education on diversity is a prerequisite to being able to successfully integrate a global workforce. until these nations enact reform, international authorities such as the u.n. special rapporteur may continue to monitor and condemn the situation and urge development in these countries. the united states’ approach to anti-discrimination policy and cultural attitudes towards diversity are vastly different than in japan and korea. while full adoption of american policy may not be possible, these nations can look toward the united states for guidance on how to promote inclusion and fight discrimination. in sum, both japan and korea lack effective laws that prohibit racial discrimination against the non-ethnic japanese and non-ethnic korean population, respectively. it is in the best interests of both nations to enhance the protection against racial discrimination for citizens, residents, visitors, and all who are present in their nation. broadening diversity on the bench: voting behavior and panel effects on the united states courts of appeals diane hu* this note seeks to determine the extent to which personal characteristics of judges—namely gender, race, and prior prosecutorial experience—affect individual judicial votes and panel decisions on the united states courts of appeals. although these characteristics do not have a significant effect on the way an individual judge votes, this note finds that the presence of one of these characteristics on a three-judge panel can influence how the other two judges vote, affecting the overall outcome. the presence of at least one female or black judge on a panel increases the likelihood of a more liberal decision across all cases. however, this effect disappears in cases that are specifically related to gender or race issues, such as employment discrimination cases. the presence of a prior prosecutor on a panel in criminal cases decreases the likelihood of a more liberal ruling (in favor of the defendant). these results shed light on the dynamics of panel decisionmaking, and allow us to critically examine the federal judicial appointment process and the pursuit of judicial diversity. * j.d. candidate 2018, columbia law school; a.b. 2015, princeton university. the author would like to thank professor olatunde johnson for her feedback during the writing process, and professor douglas massey for his advice and comments on previous versions of this note. the author would also like to thank the staff of the columbia journal of race and law for their editing assistance and contributions. finally, many thanks to professor donald songer for offering guidance on this study, and creating and providing public access to his u.s. courts of appeals database. 342 columbia journal of race and law [vol. 8:2 i. introduction ........................................................ 342 ii. how diversity affects voting outcomes ....... 344 a. diversity on the united states courts of appeals .................................................................. 344 b. panel effects on the united states courts of appeals .................................................................. 346 c. empirical studies of voting behavior ....... 349 iii. methodology .................................................... 352 a. data ............................................................... 352 b. research design ........................................... 356 c. hypotheses ................................................... 363 iv. findings .......................................................... 365 a. results .......................................................... 365 1. individual judicial vote .......................... 365 2. panel effects ............................................ 371 3. predicted probabilities ............................ 378 b. discussion of panel effects results............ 383 c. implications .................................................. 388 v. conclusion ....................................................... 396 i. introduction it is common knowledge that members of the executive and legislative branches of the united states government vote and craft policy according to their political beliefs. what is less apparent to the public but has been established through numerous studies is that judges’ voting behavior is also strongly correlated with their political no. 3:341] broadening diversity on the bench 343 ideology.1 recent studies have focused on whether judges’ other personal characteristics besides political affiliation, such as race and gender, have an effect on their voting behavior. results have been mixed and incomprehensive, however. this note will examine the relationships between judicial voting behavior and the attributes of race, gender, and prior prosecutorial experience on the united states courts of appeals. amidst calls for greater diversity in the judicial branch to better reflect our nation’s people and their backgrounds, this note supports the notion that a diverse bench can affect judicial outcomes and have tangible benefits on society. this note tests quantitatively the hypotheses that race, gender, and prior prosecutorial experience affect judges’ individual votes as well as the two other judges’ votes on three-judge panels.2 part i discusses the numerous benefits of judicial diversity and panel effects—that is, how one judge’s vote on a three-judge panel can affect other judges’ votes—on the united states courts of appeals. it also identifies past empirical studies and how their methodologies have fallen short of painting a comprehensive picture of the effects of judges’ attributes. part ii outlines this note’s methodology of measuring both how personal characteristics affect judges’ individual votes and the votes of the other judges on the panel. part iii summarizes the results and concludes that although race, gender, and prior prosecutorial experience may not affect judges’ individual votes, they do affect the other judges’ votes and thus the overall outcome. more specifically, the presence of a female or black judge increases the likelihood of what is coded as a more “liberal” 1 frank b. cross, decision making in the u.s. courts of appeals 7 (2007). see, e.g., sheldon goldman, voting behavior on the united states courts of appeals, 1961–1964, 60 the am. pol. sci. rev. 374, 380 (1966); sheldon goldman, voting behavior on the united states courts of appeals revisited, 69 the am. pol. sci. rev. 491, 503–04 (1975). 2 although qualitative studies and interviews can tell us a great deal about how judges’ personal experiences and backgrounds have shaped the way they perceive the law, we can make greater general observations from a more comprehensive empirical study. “[a] broad examination of many cases can reveal a systematic pattern of decisions, and statistical analyses add rigor to claims of ideological bias.” cross, supra note 1, at 14. 344 columbia journal of race and law [vol. 8:2 decision across all cases but not in genderor race-specific cases, respectively. additionally, the presence of a prior prosecutor decreases the likelihood of a “liberal” decision (that is, one in favor of the defendant) in criminal cases. these significant results help legitimize calls for diversity on the bench and shed more light on the possible dynamics and thought processes on diverse three-judge panels.3 ii. how diversity affects voting outcomes a. diversity on the united states courts of appeals the concept of judicial diversity has expanded from political ideology and age to race, gender, and prior professional experiences—as well as numerous other attributes— since the increased diversification of the courts in the 1970s during the carter administration.4 in presidential administrations’ efforts to diversify the courts, women have made the greatest inroads compared to other political minorities.5 the movement to increase the proportion of female and minority judges on both state and federal courts has simultaneously brought about efforts to promote merit systems for judicial appointments instead of political elections.6 calls for diversity in prior career experience have been less prominent, but are just as important for shaping a bench with a variety of perspectives. even though some older studies have not found that more female or minority judges yield significant differences in judicial outcomes, the “inclusion of these groups is vital in maintaining and even increasing the legitimacy of the 3 cross, supra note 1, at 70–71. 4 jason l. morin, the voting behavior of minority judges in the u.s. courts of appeals: does the race of the claimant matter?, 42 am. pol. res. 34, 35 (2013). 5 mark s. hurwitz & drew noble lanier, women and minorities on state and federal appellate benches, 1985 and 1999, 85 judicature 84, 92 (2001). 6 id. at 84. no. 3:341] broadening diversity on the bench 345 nation’s judicial tribunals.”7 this symbolic significance of judicial diversity is part of the notion of “descriptive representation,” or the idea that elected officials should represent not only their constituencies but also their descriptive attributes, such as race or gender.8 a diverse courtroom is arguably vital for the symbolic representation as well, for the “intangible psychological benefits”9 induce more faith and confidence in the courts, thereby giving them more legitimacy. these intangible benefits are accrued “in the aggregate, developed through judges’ interactions with one another and the public over time.”10 some empirical work has shown that “raising citizens’ level of legitimacy towards legal authorities . . . makes people more likely to obey the law,” so a diverse judiciary could potentially lead to a more law-abiding society.11 even if more diverse benches do not decide cases differently, the public might feel a greater sense of justice and fairness by seeing their own backgrounds reflected in those who hold power in the courtroom. others suggest that diversifying courts could add new perspectives to important national discussions and perhaps provide remedial justice for past and continued inequalities.12 thus, by “looking like america” and creating the perception of fairness, diverse courts can influence relevant policy outcomes, effect positive change, and bring about actual fairness.13 in contrast, 7 id. at 85. 8 nancy scherer, diversifying the federal bench: is universal legitimacy for the u.s. justice system possible?, 105 nw. u. l. rev. 587, 597 (2011). 9 morin, supra note 4, at 36–37. 10 joy milligan, pluralism in america: why judicial diversity improves legal decisions about political morality, 81 n.y.u. l. rev. 1206, 1209–10 (2006). 11 scherer, supra note 8, at 632. 12 morin, supra note 4, at 36–37. 13 josh hsu, asian american judges: identity, their narratives, and diversity on the bench, 11 asian pac. am. l.j. 92, 115 (2006). in this qualitative study, hsu examined the language in judges’ opinions and rationales, and found that background and personal experiences inform their interpretation of the law, especially in immigration deportation cases. id. at 107–11. 346 columbia journal of race and law [vol. 8:2 “substantive representation” focuses more on the “decisional behavior of governmental officials and is therefore more policy oriented.”14 this note’s empirical work ultimately examines the effects of substantive representation, as it looks at potential differences in case outcomes. b. panel effects on the united states courts of appeals this note focuses exclusively on the u.s. courts of appeals, also known as the federal circuit courts.15 the lack of data and information on judicial decision-making on the appeals courts (in contrast to the supreme court) used to be a limiting factor.16 though often overlooked, the circuit courts play an extremely important role in interpreting the law and influencing public policy, especially given the large number of cases they decide each year relative to the thus, the public must advocate for diversity on the bench despite some studies’ inconclusive statistical results. id. at 114. the key flaw with past empirical studies is that most only test to see if a single characteristic has an influential effect on judges’ decisions. id. at 101. if studies can determine that judicial background is an important factor in case outcomes, the case for diversity on the bench would be even more convincing. cross, supra note 1, at 75. 14 barbara l. graham, toward an understanding of judicial diversity in american courts, 10 mich. j. race & l. 153, 159 (2004). 15 there are 94 federal judicial districts, with at least one district in each state as well as one in the district of columbia and one in puerto rico. these districts are organized into one of 12 regional circuits, and with the addition of the federal circuit—which has nationwide jurisdiction—they make up a total of 13 united states courts of appeals. federal judicial center, the u.s. courts of appeals and the federal judiciary, http://www.fjc.gov/history/home.nsf/page/courts_of_appeals.html [https://perma.cc/mh2h-wrba](last visited may 21, 2018). each court of appeals hears and decides appeals from the district court situated within its circuit, and has at least three assigned judgeships. each circuit has between six and twenty-eight judges. id. 16 tracey e. george & reginald s. sheehan, circuit breaker: deciphering courts of appeals decisions using the u.s. courts of appeals data base, 83 judicature 240, 245 (2000). no. 3:341] broadening diversity on the bench 347 supreme court.17 furthermore, the supreme court rarely reviews the outcomes of lower federal courts, so these decisions are final. thus, the appeals courts play a large role in settling disputes and determining the “likely direction of the law.”18 since these circuit courts are often the “last resort” for a substantial number of major legal issues,19 it is vital that we continue to study the possible determinants of the courts’ decisions. when a party appeals a lower district court decision, a panel of three judges either affirms or reverses the decision.20 some cases are decided en banc, meaning the case is heard before all of the judges on the bench. however, in order to examine panel effects and any existing influence that one judge may have over others, this note will focus solely on cases decided by three-judge panels. because appeals court judges are not only swayed by their own legal views but also by those of their colleagues on the panel, the composition of a panel has great potential to 17 sue davis, susan haire & donald r. songer, voting behavior and gender on the u.s. courts of appeals, 77 judicature 129, 130 (1993). the u.s. courts of appeals were established by the judiciary act of 1891, which is also known as the evarts act. they were the first federal courts designed for the sole purpose of hearing cases on appeal from trial courts. this significantly lightened the supreme court’s caseload and eliminated the need for u.s. circuit courts, the original intermediate level courts that had both trial court jurisdiction and appellate jurisdiction over the district courts. from then on, justices no longer ruled on appeals of cases that they had seen earlier in trial courts. federal judicial center, landmark legislation: u.s. circuit court of appeals, https://www.fjc.gov/history/legislation/landmark-judicial-legislation-textdocument-10 (last visited mar. 27, 2018). however, it was not until the judiciary act of 1925 that the federal circuit courts’ power expanded, for this act gave the supreme court more discretionary control over its docket, which in turn increased the appellate docket. george & sheehan, supra note 16, at 240–241. the larger docket gave the federal circuit courts more responsibility and lawmaking ability in deciding every single case properly appealed to them. id. 18 cass r. sunstein, david schkade, lisa m. ellman & andres sawicki, are judges political? an empirical analysis of the federal judiciary 3 (2006). 19 frank b. cross, comparative judicial databases, 83 judicature 248, 248 (2000). 20 cross, supra note 1, at 1. 348 columbia journal of race and law [vol. 8:2 change the case outcome. each circuit of the u.s. courts of appeals has an official system of randomly assigning judges to case panels. this method of neutral assignment should prevent judges from being able to select which cases they feel most strongly about, which supposedly “increases the legitimacy of judicial decision making.”21 however, this may also produce unbalanced panels that are more likely to vote a particular way, especially if the issue is ideologically contested. as a result, some final panel decisions might reflect partisan interests,22 which is problematic on a branch whose decisions should not be determined by politics. one study found that republican judges were more likely to vote more liberally when sitting with two democratic judges than when sitting with at least one other republican.23 this note looks for similar effects with other characteristics like the presence of females and racial minorities. according to some scholars, the traditional model of judicial decision-making abides by the “median voter theorem,”24 in which each judge votes according to his own preference, and the judge with the median preference prevails. however, with panel effects, it is likely that judges can influence others, be influenced by others, and change their minds, as “differing ideological and background characteristics of a single panel member can affect the group’s decision.”25 research has shown that circuit court judges are influenced by others, and that this “collegiality effect” is at least as strong as a single judge’s own choices.26 as a result, some use the notion of panel effects to argue that circuit courts should have a minimum number of women and 21 jonathan p. kastellec, panel composition and voting on the u.s. courts of appeals over time, 64 pol. res. q. 377, 379 (2011). 22 id. 23 id. this effect is called ideological dampening. sunstein, supra note 18, at 9. conversely, when a judge votes in extreme ways when sitting on a panel with other judges of the same party, it is called ideological amplification or group polarization. id. 24 cross, supra note 1, at 148. 25 id. at 177. 26 id. at 9. no. 3:341] broadening diversity on the bench 349 racial minority judges for the effect they may have on the decision-making process.27 c. empirical studies of voting behavior some of the first studies that examined u.s. courts of appeals judges’ characteristics and voting behavior were done in the 1960s. in his first study, goldman only found evidence of a relationship between party affiliation and voting patterns on the appeals courts from 1961 through 1964.28 other demographic variables tested included religious affiliation, place of birth, undergraduate and law school institutions attended, and past federal experience,29 none of which were found to have an effect on the way judges voted. goldman’s first study did not test for race or gender. goldman’s second study again found that party affiliation had the strongest direct link to voting behavior.30 since then, studies have consistently found that party affiliation or political ideology has a statistically significant effect on judicial decisions.31 several studies on the role of race and gender on the u.s. courts of appeals have since been undertaken, and results have been inconsistent. for the most part, scholars find that background factors like race, gender, and past career experience have little impact on judicial outcomes.32 some have found differences in race while others have not.33 27 id. at 168. 28 sheldon goldman, voting behavior on the united states courts of appeals, 1961–1964, 60 the am. pol. sci. rev. 374, 380 (1966). 29 id. at 382. 30 sheldon goldman, voting behavior on the united states courts of appeals revisited, 69 the am. pol. sci. rev. 491, 503–04 (1975). goldman coded judicial decisions on a scale of 0 to 2 of liberalness; the higher the number, the more liberal the decision. id. at 492–93. “this is by now a convention of judicial research on lower courts.” id. this note uses a similar scale from 1 to 3. 31 cross, supra note 1, at 7. these results support the notion of legal realism, a movement among legal academics about the political nature of judicial decision-making. id. at 11. 32 id. at 8. 33 id. at 73. 350 columbia journal of race and law [vol. 8:2 there have yet to be any definitive conclusions, but it is undeniable that these factors play a role in forming people’s perspectives on critical issues. the growing number of women and racial and ethnic minorities on the federal courts has allowed other scholars to conduct similar studies that focus on either race or gender, or both. a recent 2013 paper examined employment discrimination claims between 2001 and 2009 on the u.s. courts of appeals and found that minority judge voting behavior varied by ethnicity; namely, while african american judges were more likely to vote in favor of black claimants, latino judges were less likely to vote in favor of claimants in general.34 however, because these studies tested across all cases and focused primarily on the litigants’ characteristics rather than on the judges’ characteristics, our understanding of race and voting behavior is still not fully established. conclusions on gender on the u.s. courts of appeals are, again, quite varied and conflicting; some say female judges are more liberal than their male counterparts, while other empirical studies claim that there are no significant gender differences.35 one study examined gender and race but incorporated and advocated for a different approach that focused on the interaction of different individual characteristics in criminal cases, a method that this note 34 morin, supra note 4, at 34–35. 35 see, e.g., davis et al., supra note 17, at 131–32 (analyzing voting behavior in three areas of employment discrimination and finding that the voting of female judges differed significantly from that of male judges in employment discrimination and criminal search and seizure cases, but not in obscenity cases). the same three scholars expanded on this in a second study, which reconfirmed that employment discrimination cases showed significant discrepancies. donald r. songer, sue davis & susan haire, a reappraisal of diversification in the federal courts: gender effects in the courts of appeals, 56 j. pol. 425, 425 (1994). the study also acknowledged the problem with examining only “three narrowly defined issue areas,” and that further research into other area topics is needed, especially because women and minority judges are still relatively new to the legal system. id. at 437. this note will endeavor to expand the range of topics in the author’s study by incorporating over 50 types of cases in hopes that this will yield different results. no. 3:341] broadening diversity on the bench 351 incorporates.36 mixed findings in the past have soundly indicated that judges are not influenced by just one attribute but rather “by a host of personal traits that collectively impact their behaviors.”37 the joint effects of race and gender were shown through the finding that minority female judges were more likely to vote in ways that supported criminal defendants even after controlling for other factors like region, ideology, and age.38 overall, past studies show that we must alter our methods in understanding judicial voting behavior. this includes examining overlapping characteristics instead of individual ones39 and examining panel effects rather than individual judicial votes, which is what this note does.40 additionally, most studies of panel composition that have been undertaken have focused on a narrow time period, focusing heavily on the past couple decades,41 and tend to focus on only one or two legal issues, “mak[ing] generalizing 36 todd collins & laura moyer, gender, race, and intersectionality on the federal appellate bench, 61 pol. res. q. 219, 221 (2007). 37 id. at 219. 38 id. at 222, 224. 39 id. at 225. 40 kastellec suggests that because of the low percentage of female and minority federal judges, it would be best to stop studying whether minority judges vote differently from nonminority judges, but rather whether the presence of females or racial minorities on appeals courts influences outcomes and other judges. this new approach is more suitable to the structure of the appeals courts. kastellec, supra note 21. he discusses the phenomenon in which panel composition affects individual judicial decisions and as a result, the final decisions of three-judge panels. id. at 377. most studies described above treat each judge as an individual acting of his own volition. cross, supra note 1, at 148. this would be accurate if we were looking at lone trial judges in the federal district courts, but it disregards the institutional structure of the u.s. court of appeals, where decisions are made by majority vote on three-judge panels. focusing on individual judicial decisions thus yields a problematic research design that may explain the inconclusive results from past studies. sean farhang & gregory wawro, institutional dynamics on the u.s. courts of appeals: minority representation under panel decision making, 20 j.l. econ. & org. 299, 327 (2004). 41 kastellec, supra note 21, at 380. 352 columbia journal of race and law [vol. 8:2 beyond specific issues difficult.”42 this note uses data that includes information dating back to the 1920s. in his book, cross stated that one might expect to see a greater gender panel effect if the data were further broken down into particular case types, a method that this note adopts.43 iii. methodology a. data this two-part study first examines how characteristics affect an individual judge’s voting behavior and then how that individual judge’s characteristics affect the voting behavior of the other judges on the panel. within each test, this note will see if the results change for specific related types of cases, and how the characteristics affect outcomes across all cases.44 because this study looks at 42 id. see, e.g., jonathan p. kastellec, racial diversity and judicial influence on appellate courts, 57 am. j. pol. sci. 167, 167 (2013) (finding that the presence of one black judge on a panel of three greatly increased the likelihood that the final ruling favored affirmative action programs); jennifer l. peresie, female judges matter: gender and collegial decisionmaking in the federal appellate courts, 114 yale l.j. 1759, 1761 (2005) (examining the presence of female appellate judges on a panel across just three years and finding that plaintiffs were twice as likely to be successful in sexual harassment or sex discrimination cases when a female judge served on the panel). thus, both blacks and females are able to influence their white or male colleagues in particular types of cases. 43 cross, supra note 1, at 170. 44 this note uses three datasets in this study. the first is the original comprehensive multi-user appeals court database created by dr. donald songer, with a sample of cases from each circuit for each year from 1925 to 1996. drs. ashlyn kuersten and susan haire (kuersten and haire, 2007) then created an updated dataset, coding the cases from 1997 to 2002 in a similar fashion. this note merged both of these datasets with a third dataset compiled by drs. gary zuk, deborah barrow, and gerard gryski (zuk, barrow, and gryski, 2009) with information on the political, career, and economic attributes of u.s. courts of appeals judges from 1801 to 2000 (and limited information on judges through 2004), making sure that the identifying numerical codes for the judges matched across all datasets. the variables in the songer database on appeals court cases are divided into four categories: basic case characteristics, participant no. 3:341] broadening diversity on the bench 353 panel effects, only cases whose method of decision was by a three-judge panel (as opposed to en banc decisions made by all of the judges on the circuit) were included. there are 220 specific categories of cases. for each case, the directionality of the court’s decision has been determined on a liberalness scale of 1 to 3. the higher the number, the more liberal the decision. for example, decisions in favor of criminal defendants, racial minorities in civil rights claims, labor unions, injured workers, and parties seeking protection from the first amendment are coded as liberal (“3”). this method of coding “liberalness” is used in public law literature and is similar to how decisions were recorded in the dr. harold spaeth’s u.s. supreme court database.45 it is also “now a convention of judicial research on lower courts.”46 because this coding only captures the final vote, however, it is difficult to capture all the details and nuances from the discussions, opinion, and particular facts of each case.47 characteristics, issues, and judges’ characteristics and votes. basic case characteristics consist of general case information, such as docket number, decision date, length of opinion, procedural history, circuit, state, district, and method of decision. the participant variables give detailed information on the litigants of the case. first, the number of appellants and appellees are given, and then the first two appellants and appellees are each given a five-digit code based on their nature (e.g. business, nonprofit organization, federal government, state government, or natural person). each general category is broken down into more specific categories. the database also matches the appellant and appellee to the plaintiff and defendant. issue variables are first divided into eight general categories: criminal, civil rights, first amendment, due process, privacy, labor relations, economic activity and regulation, and miscellaneous. finally, the judges and votes variables denote the identifying codes for each judge and his or her vote on each case for up to 15 judges. of course, for this study, we will only look at cases with three judges on the panel. 45 donald r. songer, united states courts of appeals database phase 1, inter-university consortium for political and social research, http://artsandsciences.sc.edu/poli/juri/appct.htm. 46 goldman, supra note 30, at 492–93. 47 there are, of course, issues with “translating something so amorphous as ideology into a numerical measure for quantitative analysis.” cross, supra note 1, at 20. however, this most common method 354 columbia journal of race and law [vol. 8:2 prior prosecutorial experience was defined as any past experience as an assistant u.s. attorney, u.s. attorney, special prosecutor, state prosecutor, district attorney, county attorney, city attorney, deputy or assistant district attorney, deputy or assistant county attorney, or deputy or assistant city attorney.48 of coding is still more detailed, manageable, and ideal than other possible options. a binary variable that only accounts for liberal or not liberal might simplify tests, but it also would have ignored even more nuance in case decisions. switching to a scale of, say, 1 to 5 in order to better account for this nuance might then be deemed too arbitrary and would be up for debate amongst legal scholars when analyzing case outcomes. therefore, the tried-and-true scale of 1 to 3 might be the best way to carry out a quantitative study of legal cases. 48 the attributes dataset contains information on the judges’ race, gender, religion, political party affiliation, appointing president, education, net worth, age, date of appointment and departure, american bar association rating, and prior federal experience. to incorporate this information with the songer database and match the different judge ids, the author first created a new “judge vote” variable and three copies of the songer data. after making sure that each copy of the data included the judge vote for the first judge, second judge, and third judge, respectively, the author combined all three copies of the data together. in order to make the process of testing panel characteristics manageable, this note recoded the three main attributes of interest as binary variables. gender was already a binary variable (though the author did change “1” for male and “2” for female into “0” for male and “1” for female). there were five options for race in the attributes dataset, but it made more sense to include only two binary variables due to the extremely low number of cases with asian american or native american judges. as said, one variable is for black and one is for white, leaving hispanics as the reference category. after defining these binary variables for individual judge characteristics, the author then created variables for panel characteristics. rather than coding these as binary as well—such as whether or not a female, minority, or past prosecutor was on the panel—i decided to designate panel characteristics as the total number of females, minorities, or past prosecutors on the panel per case, ranging from 0 to 2. this way, this note will be able to see if there are any significant differences between having, say, one female on the panel versus two or three. the “2” category encompasses panels with either two or three judges that fit the characteristic, as the number of panels with three judges of each characteristic is very low, except for the more common characteristics like white. no. 3:341] broadening diversity on the bench 355 this note grouped together particular case types as defined in the original database into three larger case categories for the study: gender, race, and prosecution cases. this created a larger pool of cases that past studies lacked. after cases that were decided en banc and not on a threejudge panel have been removed, there were a total of 40,523 observations. any case type or issue that this note deemed directly relevant to each independent variable was included. they span across several of the dataset’s general categories, from first amendment to privacy issues. the gender cases are employment sex discrimination, pregnancy discrimination, other sex discrimination, abortion rights, contraception, and other privacy claims related to marital relations or sexual behavior. there are a total of 414 cases that fall into these categories and are thus designated as “gender cases.” race cases encompassed voting rights (including race discrimination in voting), desegregation, employment race discrimination, other race discrimination, and the legality of expression through overt acts (such as speeches and picketing) specifically protesting race discrimination. there are 807 race cases total. categorizing prosecution cases was the most straightforward of the three types. this note includes all criminal cases (both federal and state offenses): murder, rape, arson, aggravated assault, robbery, burglary, auto theft, larceny, other violent crimes, narcotics, alcohol related crimes, tax fraud, firearm violations, morals charges, criminal violations of government regulations of business, and other white collar crimes. there are 14,884 criminal cases in the dataset. the focus on appeals courts not only makes up for a missing component of the literature, but also gives the study consistency, which can make the statistical analysis and results more reliable. for example, because all cases are federal, the procedures in court are largely the same across all circuits. additionally, the method of voting on panels of three judges and the uniform appointment system are similar. (although there are of course substantive differences and circuit splits on certain areas of the law, 356 columbia journal of race and law [vol. 8:2 these regional differences are controlled for in the model.) the large size of the database and the fact that there are three judges per case in the appellate courts give us a great deal of information and observations, which increases reliability. finally, because the u.s. courts of appeals do not have the discretion to decide which cases to take on (unlike the supreme court), there is less of a concern for selection bias. b. research design this note focuses on race and gender because they are significant traits that can shape one’s thoughts, preferences, and beliefs. this note also explores whether a judge has had prior prosecutorial experience in criminal cases because this experience can significantly alter the way one views the criminal justice system.49 the first test focuses on judges’ individual votes, with the dependent variable as the directionality of each judge’s vote on a 1 to 3 scale of “liberalness,” with three ordered categories: “liberal,” “mixed,” or “conservative.” for the second test for panel effects, the dependent variable is also from 1 to 3, but only accounts for the directionality of the final panel decision (rather than the vote of each individual judge).50 the equations are as follows:51 1. individual judicial vote = b0 + b1female + b2white + b3black + b4pros + b5gendercase + b6racecase + b7proscase + b8gendercase*female + 49 goldman did not find that prior federal experience as a judge, public office candidate, or public prosecutor mattered. goldman, supra note 30, at 499–500. this note tests this trait for criminal cases only. 50 because the dependent variable in this study is ordinal (on a scale of 1 to 3), the author ran ordinal logistic regressions in stata and included a number of other independent and control variables as shown in the two models above. 51 please refer to table 1 for definitions of the abbreviated variables in the two models. no. 3:341] broadening diversity on the bench 357 b9racecase*white + b10racecase*black + b11proscase*pros + b12femalepanel + b13whitepanel + b14blackpanel + b15hispanicpanel + b16prospanel + b17appelfemale + b18appelminority + b19respondfemale + b20respondminority + b21party + b22presparty + b23age + b24graddeg1 + b25graddeg2 + b26decade40 + b27decade50 + b28decade60 + b29decade70 + b30decade80 + b31decade90 + b32circuit0 + b33circuit1 + b34circuit2 + b35circuit3 + b36circuit4 + b37circuit5 + b38circuit6 + b39circuit7 + b40circuit8 + b41circuit9 + b42circuit10 2. panel decision = b0 + b1femalepanel + b2whitepanel + b3blackpanel +b4hispanicpanel + b5prospanel + b6gendercase + b7racecase + b8proscase + b9gendercase*femalepanel + b10racecase*whitepanel + b11racecase*blackpanel + b12racecase*hispanicpanel + b13proscas*prospanel + b14appelfemale + b15appelminority + b16respondfemale + b17respondminority + b18party + b19presparty + b20age + b21graddeg1 + b22graddeg2 + b23decade40 + b24decade50 + b25decade60 + b26decade70 + b27decade80 + b28decade90 + b29circuit0 + b30circuit1 + b31circuit2 + b32circuit3 + b33circuit4 + b34circuit5 + b35circuit6 + b36circuit7 + b37circuit8 + b38circuit9 + b39circuit10 358 columbia journal of race and law [vol. 8:2 table 1. description of dependent and independent variables variable name definition and coding judgevote directionality of individual judge’s vote (scale of 1 to 3) paneldecision directionality of case outcome (scale of 1 to 3) female 1 if female, 0 otherwise white 1 if white, 0 otherwise black 1 if black, 0 otherwise pros 1 if has prior prosecutorial experience, 0 otherwise gendercase 1 if case is gender-related, 0 otherwise racecase 1 if case is race-related, 0 otherwise proscase 1 if case is a criminal case, 0 otherwise femalepanel number of females on panel (0, 1, or 2+) whitepanel number of whites on panel (0, 1, or 2+) blackpanel number of blacks on panel (0, 1, or 2+) hispanicpanel number of hispanics on panel (0, 1, or 2+) prospanel number of past prosecutors on panel (0, 1, or 2+) appelfemale appellant’s gender (1 if female, 0 otherwise) appelminority appellant’s race (1 if minority, 0 otherwise) respondfemale respondent’s gender (1 if female, 0 otherwise) respondminority respondent’s race (1 if minority, 0 otherwise) party party affiliation of judge (1 if democrat, 0 otherwise) presparty party of appointing president (1 if democrat, 0 otherwise) age age of judge at the time of decision graddeg1 first graduate degree (other than j.d.) attained no. 3:341] broadening diversity on the bench 359 graddeg2 second graduate degree (other than j.d.) attained decade40 1 if case occurred in the 1940s, 0 otherwise decade50 1 if case occurred in the 1950s, 0 otherwise decade60 1 if case occurred in the 1960s, 0 otherwise decade70 1 if case occurred in the 1970s, 0 otherwise decade80 1 if case occurred in the 1980s, 0 otherwise decade90 1 if case occurred in the 1990s, 0 otherwise circuit0 1 if case occurred in the d.c. circuit, 0 otherwise circuit1 1 if case occurred in the first circuit, 0 otherwise circuit2 1 if case occurred in the second circuit, 0 otherwise circuit3 1 if case occurred in the third circuit, 0 otherwise circuit4 1 if case occurred in the fourth circuit, 0 otherwise circuit5 1 if case occurred in the fifth circuit, 0 otherwise circuit6 1 if case occurred in the sixth circuit, 0 otherwise circuit7 1 if case occurred in the seventh circuit, 0 otherwise circuit8 1 if case occurred in the eighth circuit, 0 otherwise circuit9 1 if case occurred in the ninth circuit, 0 otherwise circuit10 1 if case occurred in the tenth circuit, 0 otherwise 360 columbia journal of race and law [vol. 8:2 table 2. summary statistics of variables proportion of 0 (%) proportion of 1 (%) proportion of 2+ (%) female 95.13 4.87 white 94.96 5.04 black 96.58 3.42 pros 64.71 35.29 gendercase 99.08 0.92 racecase 98.21 1.79 proscase 66.99 33.01 femalepanel 88.13 10.73 1.13 whitepanel 0.16 4.0 95.85 blackpanel 90.91 8.75 0.34 hispanicpanel 95.95 3.90 0.16 prospanel 28.55 47.75 23.70 appelfemale 92.96 7.04 appelminority 95.10 4.90 respondfemale 97.33 2.67 respondminority 99.01 0.99 party 50.04 49.96 presparty 50.83 49.17 graddeg1 84.71 15.29 graddeg2 98.85 1.15 decade40 91.06 8.94 decade50 91.36 8.64 decade60 83.17 16.83 decade70 82.52 17.48 decade80 82.79 17.21 decade90 78.18 21.82 circuit0 90.50 9.50 circuit1 90.69 9.31 circuit2 90.47 9.53 circuit3 91.38 8.62 circuit4 91.37 8.63 circuit5 90.67 9.33 circuit6 90.97 9.03 circuit7 90.62 9.38 circuit8 91.35 8.65 no. 3:341] broadening diversity on the bench 361 circuit9 91.41 8.59 circuit10 91.70 8.30 as can be seen in table 1 and the equations above, the key independent variables for gender, race, and prior prosecutorial experience are bolded. in this model, the author created two binary variables for race (black and white) in order, leaving hispanics as the reference category. while the original dataset used for this note also coded for asian americans and native americans, there was only one asian american and there were no native americans, so those two options were not included in the model. for individual judicial vote, the key independent variables are female, white, black, and pros. for panel decision, the bolded variables are the panel characteristics femalepanel, whitepanel, blackpanel, hispanicpanel, and prospanel, each of which is the number of females, whites, blacks, hispanics, or past prosecutors on a given panel (up to two), respectively. the next few variables in each model are the characteristics of the cases in question.52 if the appellant or appellee is a natural person (as opposed to a business or the government), the model will include that individual’s race and gender. of course, gender, race, and prior career experience are not the only significant characteristics that influence judges’ preferences. this note thus includes other attributes that are relevant to judges’ personal backgrounds and may influence the judges’ votes as control variables, namely party affiliation, party of appointing president, age, and any graduate degree education other than a juris doctor.53 the variables that follow in the models are dummy 52 the variables hispanic, graddeg3 (third graduate degree), decade30 (the 1930s), and circuit11 (eleventh circuit) are not included in the model or table 1 to avoid collinearity. 53 because the original datasets the author worked with accounted for many details, many variables of interest like the race and gender of the appellants and appellees are categorical over five groups. in order for these variables to work with this notes ordinal logit, the author adjusted their coding to binary. this note repeated this process for some of 362 columbia journal of race and law [vol. 8:2 variables for circuit and decade in order to evaluate any changes over time or across region and circuit.54 finally, this note uses interaction terms created by the author to capture interaction effects between the attributes and their corresponding case types. these interaction effects allow the author to examine individual or gender effects with cases deemed relevant to gender, race effects with cases deemed relevant to race, and so on.55 for past prosecutorial experience, this note looks at all criminal the judges’ other characteristics as well, namely party affiliation, party of appointing president, age, and education. age is the only one of this note’s control variables that is not binary. the minimum age in the dataset is 25, the mean is 52, and the maximum is 71. 54 this note determined the sampling weights according to instructions in the songer database codebook. because the total number of cases varies per circuit per year—in some years 15 cases were selected per year while in others 30 cases were selected per year—the total sample of cases is not a random sample of all appeals court decisions. thus, using a provided table of weights, this note calculated a sampling weight for each circuit per year, which was then attached to each case. each sampling weight was determined by dividing the number of cases per circuit in a given year by the total number of cases across all circuits in that year. 55 the gender interaction term is the product of two binary variables: whether it is a gender case, and whether the judge is female. this note will then be able to evaluate how both males and females vote in gender cases versus non-gender cases. in the second test, the interaction term is the product of one binary and one continuous variable: whether it is a gender case, and the number of females (up to two). thus, the first factor is binary, and the options for the second factor are 0, 1, and 2, with two encompassing panels of two or more females. this will provide information on how the presence of females (or lack thereof) affects gender cases as well as non-gender cases. the other interaction terms are calculated in the same way, but instead of the number of females, it is the number of blacks, whites, and past prosecutors (but again, up to two). the reason this note models interaction effects this way is because if it were a simple count of the number of females up to three, there would not be enough variability due to the small number of cases with panels of three females. a simple run of the ordinal logistic regression and marginal effects illustrated that this greatly skewed the results. for example, there are only 12 out of tens of thousands of observations that have three blacks on one panel; this accounts for less than one percent of all cases. while this was not an issue for whites, this note coded all three attribute panel variables as either 0, 1, or 2, with two representing cases with either two or three females, blacks, whites, or past prosecutors for the sake of consistency. no. 3:341] broadening diversity on the bench 363 cases and no civil cases. different types of cases have different levels of importance when examining background characteristics; for example, a boundary dispute between two states would not be as relevant as, say, first amendment or labor relations issues.56 the type of case may be even more important than the judge’s ideology to the direction of case outcomes.57 most studies in the literature either examine too broad a range of cases (all of them) or too specific a range; this note attempts to modify and correct this. c. hypotheses this note hypothesizes that each of the three attributes will influence the directionality of individual judges’ votes on cases that are relevant to each particular characteristic. this note also hypothesizes that when there is at least one female or minority in the panel in a genderor race-related case, respectively, there will be a stronger relationship between the panel characteristics and the directionality of the panel’s final decision. both females and racial minorities bring an important perspective to the bench and think about relevant issues differently from other appeals court judges. their presence on the bench may make other judges on the panel more aware of gender or race issues. they may also be able to persuade their colleagues to support a particular litigant. this note thus hypothesize that females are more likely to vote liberally in gender-related cases, as are blacks and hispanics in race-related cases. even if the individual votes of females, blacks, and hispanics may not change substantially, this note hypothesizes that their presence on panels may influence their white male colleagues and increase the probability of an ultimately more liberal outcome. finally, this note predicts that judges with past prosecutorial experience will be more stringent on defendants and will thus vote more conservatively, since a liberal decision is coded as one that supports the position of 56 cross, supra note 1, at 25. 57 id. 364 columbia journal of race and law [vol. 8:2 the defendant in a criminal procedure case. this note also hypothesizes that there will be panel effects for prosecutorial experience, for even if past professions are not as observable or prominent as features like race and gender, judges can still influence others during deliberations. table 3. hypotheses individual judicial vote gender female judges will vote in a more liberal manner in gender cases. race black and hispanic judges will vote in a more liberal manner in race cases. prior prosecutorial experience judges with prosecutorial experience will vote in a less liberal manner in criminal cases. panel decision gender the presence of at least one female judge on the panel will result in a more liberal outcome in gender cases. race the presence of at least one black or hispanic judge on the panel will result in a more liberal outcome in race cases. prior prosecutorial experience the presence of at least one judge with prosecutorial experience on the panel will result in a less liberal outcome in criminal cases. no. 3:341] broadening diversity on the bench 365 iv. findings a. results 1. individual judicial vote table 4. ordinal logistic regression results for individual judicial vote (1) (2) variables logit coefficient odds ratio gendercase 0.105 1.110 (0.100) (0.111) female -0.0396 0.961 (0.0816) (0.0784) gendercase*female -0.0713 0.931 (0.359) (0.335) racecase -0.0696 0.933 (0.688) (0.641) white 0.0510 1.052 (0.129) (0.136) racecase*white 0.101 1.107 (0.692) (0.766) black 0.0651 1.067 (0.152) (0.162) racecase*black -0.152 0.859 (0.833) (0.715) proscase -1.166*** 0.312** * (0.0328) (0.0102) pros 0.0126 1.013 (0.0325) (0.0329) proscase*pros -0.0185 0.982 (0.0547) (0.0537) femalepanel 0.118** 1.125** (0.0496) (0.0558) blackpanel 0.188*** 1.207** 366 columbia journal of race and law [vol. 8:2 * (0.0529) (0.0639) hispanicpanel -0.0245 0.976 (0.0763) (0.0744) whitepanel 0.000805 1.001 (0.0672) (0.0673) prospanel 0.0261 1.026 (0.0198) (0.0203) appelfemale -0.289*** 0.749** * (0.0472) (0.0354) appelminority -0.0320 0.969 (0.0664) (0.0644) respondfemale 0.141** 1.151** (0.0689) (0.0793) respondminority 0.376*** 1.456** * (0.124) (0.180) party 0.0359 1.037 (0.0504) (0.0522) presparty 0.135*** 1.145** * (0.0509) (0.0583) age 0.000193 1.000 (0.00178) (0.00178) graddeg1 -0.0233 0.977 (0.0334) (0.0326) graddeg2 -0.242 0.785 (0.226) (0.178) decade40 0.0548 1.056 (0.0529) (0.0559) decade50 -0.0284 0.972 (0.0520) (0.0505) decade60 -0.0453 0.956 (0.0466) (0.0445) decade70 0.117** 1.125** (0.0468) (0.0526) decade80 -0.0128 0.987 no. 3:341] broadening diversity on the bench 367 (0.0480) (0.0474) decade90 -0.249*** 0.780** * (0.0486) (0.0379) circuit0 -0.0898 0.914 (0.110) (0.100) circuit1 -0.128 0.880 (0.106) (0.0935) circuit2 -2.97e-05 1.000 (0.107) (0.107) circuit3 0.00750 1.008 (0.107) (0.108) circuit4 -0.0328 0.968 (0.106) (0.103) circuit5 -0.102 0.903 (0.107) (0.0965) circuit6 -0.0176 0.983 (0.106) (0.104) circuit7 -0.219** 0.804** (0.106) (0.0852) circuit8 -0.163 0.850 (0.106) (0.0901) circuit9 -0.0213 0.979 (0.107) (0.105) circuit10 -0.00440 0.996 (0.107) (0.107) cut point 1 constant -0.165 0.848 (0.214) (0.181) cut point 2 constant 0.145 1.156 (0.214) (0.247) observations 40,523 40,523 robust standard errors in parentheses *** p<0.01, ** p<0.05, * p<0.1 368 columbia journal of race and law [vol. 8:2 the first notable observation we can make from the results in table 4 is that the three attributes of interest are not significantly correlated with individual judge voting behavior (the outcome variable in the first model).58 while this is not what we would expect, it is in line with past studies finding that gender, race, and other personal characteristics have little determinative effect on individual decisions.59 this also establishes a baseline from which we can make different conclusions about panel effects. the variables that do have some significance from the first model are female panel characteristics, black panel characteristics, the appellant’s gender, the appellee’s gender, the appellee’s race, and party of the judge’s appointing president. because both the coefficients for femalepanel and blackpanel are positive and significant over all types of cases, this seems to suggest that the presence of females and blacks increases the likelihood that an individual judge’s vote will be on the liberal side regardless of case type. this supports the panel effects theory and hypothesis, and it is reasonable that prospanel is not significant here. gender and race are two more visible and apparent characteristics that may subconsciously influence other judges’ thinking and decision-making, whereas past experience is more difficult to discern. neither hispanicpanel nor whitepanel is significant. if we look at the odds ratio for these two variables, we can see that with the addition of one female to a panel of judges, the odds of having a liberal decision versus a conservative or mixed decision are 1.125 times greater. with 58 although it is difficult to discern much meaning from the raw coefficients given in the ordinal logistic regression results, we can still take an initial, cursory look at the sign of the coefficients and the statistical significance in column 1 of table 4. because the column 1 coefficients show the change in the log of the odds, we can then examine the odds ratio in column 2 that displays the proportional odds ratios for the ordered logit model. the odds ratios shown are obtained by exponentiating the coefficients in column 1 (ecoefficient), and give us a much clearer sense of how these variables affect voting behavior. 59 see goldman, supra note 30. no. 3:341] broadening diversity on the bench 369 a one unit increase in the number of blacks on the panel, the predicted odds of observing a more liberal decision are 1.207 times greater. thus, each additional female is associated with a 12.5% increase in the odds of jumping a level in the outcome variable (either from conservative “1” to mixed “2” or liberal “3”, or from conservative “1” or mixed “2” to liberal “3”) and each additional black is associated with about a 20.7% increase in increasing a level.60 thus, although variables representing individual characteristics like female and black are not significant, femalepanel and blackpanel are. this bolsters the prediction that their presence may still influence other judges on the same panel even though a judge’s individual attributes may not have an effect on his or her own vote. these results from the first test support past scholars’ statement that “background variables . . . mask too wide a variety of conditioning experiences for us to expect them to be directly and clearly associated with voting behavior and thus to be able to account for a significant portion of the variation of the behavior.”61 however, these scholars also neglected to take panel influences into account, which we found were significant even in the first model. this first test serves as an interesting starting point for interpreting panel effects. it is also worth discussing other significant covariates in this model. the negative sign of the proscase coefficient shows that criminal cases decrease the odds of a more liberal decision. the odds ratio here is 0.312, so for an increase in the unit of this independent variable from 0 to 1, there is a 68.8% (1 – 0.312) decreased likelihood of a more liberal decision. this is an interesting observation, as it shows that 60 notice that throughout this note, the author asserts that the odds that the decision “is more liberal” rather than “is liberal,” because the odds ratio predicts the probability of jumping a level, either from conservative to mixed or liberal, or from conservative or mixed to liberal. it does not tell us the chances of the decision being a conservative, mixed, or liberal one. 61 goldman, supra note 30, at 496. 370 columbia journal of race and law [vol. 8:2 judges are, as a whole, tougher on the defendant and more likely to vote conservatively in criminal cases.62 it is not too surprising that the party of the judge’s appointing president is significant in determining an individual judge’s vote. this suggests that federal appeals judges vote in ways that align with the political preferences of the president who appointed them. the way the two-party variables were coded make it so that a one unit increase from 0 to 1 is a change from republican to democrat. thus, if the judge’s appointing president is a democrat, the odds that the individual judge’s vote will be on the more liberal side is 14.5% greater.63 finally, there are some significant results in the dummy variables this note included to capture changes over time and region. the 1970s showed positive significance, which could be explained by the substantial increase in diversity of the courts during those years. during that decade, there was a 12.5% increase in the odds that an individual judge’s vote was more liberal. individual voting behavior in the 1990s, however, had a 22% decreased likelihood of being more liberal. in addition, judges’ votes in the seventh circuit (with jurisdiction over the federal district courts in illinois, indiana, and wisconsin) had a 19.6% decreased likelihood of being more liberal. 62 the litigants’ characteristics are important, though the interpretation of these results is more difficult and could be explored in further studies. if the appellee is a female or minority, both of these characteristics increase the likelihood of a more liberal decision by 15.1% and 45.6%, respectively. in contrast, only the appellant’s gender seems to matter, but here, a female appellant actually decreases the odds by around 25% that the outcome will be more liberal. this may tell us something about the way judges perceive those who choose to appeal cases versus those who are being brought back to court. 63 the positive sign of the coefficient (or the fact that the odds ratio is greater than one) makes sense for the most part, for even if liberal and conservative ideologies are not synonymous with the democratic and republican parties, they are aligned in many cases given the way the case outcomes are coded. no. 3:341] broadening diversity on the bench 371 2. panel effects table 5. ordinal logistic regression results for panel decision (1) (2) variables logit coefficient odds ratio gendercase 0.230** 1.259** (0.107) (0.134) femalepanel(1) 0.132*** 1.141*** (0.0462) (0.0527) femalepanel(2+) 0.480*** 1.616*** (0.153) (0.248) gendercase*femalepanel(1) -0.648*** 0.523*** (0.244) (0.128) gendercase*femalepanel(2+) 13.98*** 1.182e+06* ** (0.470) (555,670) racecase 29.61*** 7.219e+12* ** (0.698) (5.036e+12) blackpanel(1) 0.242*** 1.273*** (0.0477) (0.0607) blackpanel(2+) 0.442* 1.556* (0.241) (0.376) racecase*blackpanel(1) -0.368 0.692 (0.324) (0.225) racecase*blackpanel(2+) -15.30*** 2.26e07*** (0.653) (1.47e-07) hispanicpanel(1) -0.0698 0.933 (0.0677) (0.0631) hispanicpanel(2+) 0.138 1.148 (0.290) (0.333) racecase*hispanicpanel(1) 0.162 1.176 (0.408) (0.480) whitepanel(1) 0.394 1.483 (0.363) (0.538) 372 columbia journal of race and law [vol. 8:2 whitepanel(2+) 0.395 1.484 (0.367) (0.544) racecase*whitepanel(1) -29.22*** 0*** (0.565) (0) racecase*whitepanel(2+) -29.51*** 0*** (0.475) (0) proscase -1.113*** 0.328*** (0.0475) (0.0156) prospanel(1) 0.111*** 1.117*** (0.0324) (0.0362) prospanel(2+) 0.0923** 1.097** (0.0382) (0.0419) proscase*prospanel(1) -0.156** 0.856** (0.0606) (0.0519) proscase*prospanel(2+) -0.0926 0.912 (0.0723) (0.0659) appelfemale -0.310*** 0.733*** (0.0475) (0.0348) appelminority -0.0515 0.950 (0.0671) (0.0637) respondfemale 0.109 1.115 (0.0695) (0.0775) respondminority 0.394*** 1.483*** (0.124) (0.183) party 0.00328 1.003 (0.0506) (0.0508) prespart 0.0906* 1.095* (0.0510) (0.0558) age 0.00204 1.002 (0.00176) (0.00176) graddeg1 -0.0183 0.982 (0.0333) (0.0327) graddeg2 -0.355 0.701 (0.230) (0.161) decade40 0.0784 1.082 (0.0531) (0.0575) decade50 0.00465 1.005 (0.0521) (0.0524) no. 3:341] broadening diversity on the bench 373 decade60 -0.0266 0.974 (0.0467) (0.0455) decade70 0.166*** 1.181*** (0.0469) (0.0554) decade80 0.00558 1.006 (0.0482) (0.0485) decade90 -0.266*** 0.767*** (0.0488) (0.0374) circuit0 -0.0715 0.931 (0.111) (0.103) circuit1 -0.119 0.887 (0.108) (0.0955) circuit2 0.00594 1.006 (0.108) (0.108) circuit3 0.0222 1.022 (0.108) (0.110) circuit4 -0.0376 0.963 (0.107) (0.103) circuit5 -0.0934 0.911 (0.108) (0.0986) circuit6 -0.0205 0.980 (0.107) (0.105) circuit7 -0.227** 0.797** (0.107) (0.0854) circuit8 -0.180* 0.835* (0.107) (0.0895) circuit9 -0.0265 0.974 (0.108) (0.105) circuit10 -0.00463 0.995 (0.108) (0.108) cut point 1 constant 0.232 1.261 (0.402) (0.507) cut point 2 constant 0.546 1.726 (0.402) (0.694) 374 columbia journal of race and law [vol. 8:2 observations 40,523 40,523 robust standard errors in parentheses *** p<0.01, ** p<0.05, * p<0.1 the results from the second model shown in table 5 have much greater significance for the three primary panel variables of interest. this contrasts greatly with the individual characteristic variables in the first model. analyzing the results of panel characteristics in the second model is a bit more complex because of the multiple interaction effects for each possible scenario. there is one interaction term for when there is one female on the panel of a gender case, another term for when there are two or more females on the panel of a gender case, and so on for the three races and two other attributes. we are also given the coefficients and odds ratios for when femalepanel (as well as blackpanel, whitepanel, etc.) is equal to 1 and when it is equal to 2. thus, not only can we evaluate how the presence of a single female, black, white, hispanic, or past prosecutor affects other judges and case outcomes, but we can also evaluate how the presence of multiple females, blacks, whites, hispanics, or past prosecutors affects other judges and case outcomes. as anticipated in the hypothesis, the results from the second test show that gender generally affected panel decisions. the presence of one female on a panel of judges increased the likelihood that the final panel ruling would be on the more liberal side by 14.1% across all case types. for two or more females, the odds increased to 61.6% across all case types. this is a significant finding, as it tells us what a large difference gender diversity can make on the courts. a surprising result was that in gender cases alone, the presence of one female decreased the odds that the outcome would be more liberal (by 47.7%), but with two or more females, it would return to an extraordinarily large increase in the likelihood of a more liberal decision. these unusual and unexpected results might be a result of the fact that out of the 414 cases deemed “gender cases,” only 11 of no. 3:341] broadening diversity on the bench 375 them had two or more females on the panel. thus, when interpreting the effect of female judicial presence, it might be be wise to rely only on the femalepanel(1) and femalepanel(2+) variables or on the gender case interaction term with only one female, because they span across a much larger sample of cases. however, since these two types of variables have opposing results, we must conclude from these results alone that while females influence others to vote more liberally as a whole, they do not necessarily do so in gender-specific cases. just like with gender, the odds of a more liberal decision are greater (1.273 times to be exact) across all case types with the presence of one black judge. with two or more, this number increases to 1.556. however, when limited to only race cases, this 27.3% and 55.6% increase in the likelihood of a more liberal decision disappears. the only interaction term that is significant here is with a race case and two or more blacks on the panel, and the odds ratio is so small that it is almost completely certain that the case outcome will not be liberal as opposed to mixed or conservative, or liberal or mixed as opposed to conservative. because the racial diversity of the u.s. courts of appeals was not particularly high from 1925 to 2002, it is not surprising to find parallels to the gender issues described earlier. out of the 807 cases categorized as “race cases,” there are only five cases in which there are two or more blacks on the panel. although this note tried to evade this problem by coding panels with two or three females, blacks, and others together (for example, there are 496 cases with two females but just twelve cases with three), the small sample of gender or race cases interfered nonetheless. it is possible that in those five race-related cases, the black judges and their colleagues on the panels voted conservatively; a larger sample might tell us something different. nonetheless, it is not possible to speculate this given the constraints of the dataset, so we would be better off focusing on the original blackpanel variables unencumbered by case type specification. even in spite of the small number of relevant cases, it is interesting to note that the presence of 376 columbia journal of race and law [vol. 8:2 females and blacks raises the probability of a more liberal decision overall, but tends to do the opposite on cases that relate to their attributes. possible explanations of this voting behavior will be explored in part iii. the results for hispanic judges were not significant, so we cannot make any conclusions about them at this time in this study, except as part of a larger “nonwhite” group when evaluating the whitepanel variables and interaction terms. the two whitepanel variables that looked at all cases did not yield any significance, but when interacted with the presence of a race case, a panel with one white (and two nonwhites), two whites (and one nonwhite), or three whites would again greatly decrease the odds of a more liberal decision. though the tables say the odds ratios are 0, these are rounded figures from the infinitesimal number e-29. this very tiny chance of a more liberal decision makes sense given the results from the racecase*blackpanel interaction terms discussed above (although the nonwhites include hispanics as well here). the variables on past prosecutorial experience seem to correspond with the hypotheses that past prosecutors vote more conservatively in criminal cases. although the presence of prosecutors does not have much of a conservative effect on decisions (quite the contrary in fact), it does when it is a criminal case. the prospanel(1) and prospanel(2+) variables that indicate panels with 1 and 2 or more past prosecutors, respectively, both have positive coefficients and odds ratios greater than one (though not by much). thus, the presence of prosecutors slightly increases the odds that the decision will be more liberal (by 11.7% if there is one, and by 9.7% if there are two or more). however, in criminal cases, the presence of a past prosecutor decreases the likelihood that the decision is more liberal, which was predicted. with one prosecutor, the probability decreases by 14.4%.64 we can also see that all three types of cases, not just prosecution, are significant. while gender and race cases are 64 the coefficient for two or more prosecutors on a criminal case was also negative, but not significant. no. 3:341] broadening diversity on the bench 377 associated with more liberal outcomes, criminal cases are associated with more conservative outcomes. most of the variables that were significant for individual judicial vote are still significant for panel decision, specifically the appellant’s gender, the appellee’s race, the party of the appointing president (though much less significant), the seventh circuit, and the decades 1970 and 1990. once again, a female appellant decreases the likelihood of a more liberal decision, this time by 26.7%, whereas a minority appellee increases it by 48.3%. the only other differences between the results in the two models (besides levels of significance) are that the appellee’s gender is no longer significant in the second test, and that the eighth circuit is moderately significant as well.65 in sum, in the first model, individual judges’ personal characteristics do not affect the way they vote. however, having females or blacks on a panel can influence others’ individual votes into being more liberal, regardless of case type. in the second model, we found that panel characteristics are significant all around, though in some unexpected and unclear ways. in non-gender cases, the presence of females greatly increased the odds of a more liberal decision, as did the presence of blacks in non-race 65 it is reasonable that the two significant region variables, circuit7 and circuit8, decrease the odds that the decision will be a more liberal one (by 20.3% and 16.5%, respectively), as the seventh and eighth circuits are two of the most conservative circuits “in accordance with standard lore.” sunstein, supra note 18, at 108. as for results for changes over time, cases in the 1970s increased the odds of a more liberal decision by 18.1%, and cases in the 1990s decreased the probability of a more liberal decision by 23.3%. while these differences can be partly attributed to the changing docket over the years, these significant results may also be explained by the appointing president’s administration and party. in the 1970s, 59% of the federal judiciary was appointed by a democratic president, and in the 1990s, that percentage decreased to just 33%. id. at 123. additionally, the carter administration in the late 1970s was the first to implement a policy of affirmative action in his judicial appointments and appointed more women and racial minorities, which might be another reason for the significant results for decade. jon gottschall, carter’s judicial appointments: the influence of affirmative action and merit selection on voting on the u.s. courts of appeals, 67 judicature 165, 167 (1983). 378 columbia journal of race and law [vol. 8:2 cases. in gender and race cases, results were more mixed. hispanics had no significant effect, while whites decreased the odds of liberalness in race cases. finally, judges with past experience as a prosecutor increased the odds of a liberal decision across all cases, but decreased those odds in criminal cases. 3. predicted probabilities figure 1. probability of liberal versus conservative rulings in gender and non-gender related panel cases (femalepanel) 0.566 0.533 0.445 0.509 0.636 0.000 0.359 0.390 0.476 0.414 0.295 1.000 0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1 1.1 0 females 1 female 2+ females 0 females 1 female 2+ females conservative liberal non-gender gender cases no. 3:341] broadening diversity on the bench 379 figure 2. probability of liberal versus conservative rulings in race and non-race related panel cases (blackpanel) 0.567 0.507 0.454 0.532 0.566 1.000 0.358 0.416 0.467 0.391 0.359 0.000 0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1 1.1 0 blacks 1 black 2+ blacks 0 blacks 1 black 2+ blacks conservative liberal non-race race 380 columbia journal of race and law [vol. 8:2 figure 3. probability of liberal versus conservative rulings in race and non-race related panel cases (hispanicpanel)* * there are no race cases with two or more hispanics on the panel. 0.562 0.579 0.528 0.543 0.520 0.363 0.347 0.395 0.381 0.403 0.0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1.0 1.1 0 hispanics 1 hispanic 2+ hispanics 0 hispanics 1 hispanic conservative liberal non-race race no. 3:341] broadening diversity on the bench 381 figure 4. probability of liberal versus conservative rulings in criminal and non-criminal panel cases (prospanel)* when interpreting ordinal logistic regressions, odds ratios can be misleading in some cases. it can be helpful to supplement the information from above with an alternate method of predicted probabilities, which many find makes the results more tangible and meaningful.66 as shown in 66 using the margins command in stata this note evaluated the predicted probabilities for conservative, mixed, and liberal decisions for each of the three key attributes, while every other variable is held at the mean. for each of the variables femalepanel, blackpanel, hispanicpanel, whitepanel, and prospanel, there are six possible scenarios. the author has structured it in such a way that there are predicted probabilities for each of these six possible outcomes, which allows us to compare the same characteristic across all scenarios at once. for example, the femalepanel figure below orders the six scenarios in the 0.478 0.451 0.455 0.736 0.745 0.736 0.444 0.471 0.466 0.207 0.200 0.207 0.0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1.0 1.1 conservative liberal criminalnon-criminal 382 columbia journal of race and law [vol. 8:2 figures 1–4, we can see the predicted probabilities of a conservative and liberal decision when we set and hold all other predictor variables at their mean values. here, the numbers do not tell us the probability of jumping a level to a more liberal decision, but rather the probability of each outcome. regardless of variable or case type, the predicted probability of a mixed decision is always very low compared to a conservative or liberal decision (never above a 10% probability), which is why they are not included in the figures. the predicted probability of a liberal decision increases from 35.9% to 39% when one female is added to a panel on non-gender cases, and then again from 39% to 47.6% when yet another female or two are added to a panel. of course, these observations should and do align with our conclusions from the odds ratios above, but predicted probabilities allow us to look at this information from a different angle. for example, we see that the likelihood of a liberal decision decreases from 41.4% to 29.5% when one female is added to a panel on a gender case, but then increases greatly with the presence of two or more females. similarly, the presence of one black on the panel for a non-race case increases the probability of a liberal decision from 35.8% to 41.6%, and then from 41.6% to 46.7% with two or more blacks, as can be seen in figure 2. however, this percentage decreases when the case is race-related, and even more so with the addition of blacks for those cases. although hispanics do not seem to vote according to any specific pattern in non-race cases, the probability that the case outcome will be liberal on a race case increases slightly from 38.1% to 40.3% when a hispanic is on the panel (see figure 3). overall, however, hispanics seem to vote on the conservative side, which is something we would not be able to glean from the coefficients and odds ratios alone. following way: (1) a non-gender case with zero females on a panel, (2) a non-gender case with one female on a panel, (3) a non-gender case with two or three females on a panel, (4) a gender case with zero females on a panel, (5) a gender case with one female on a panel, and (6) a gender case with two or three females on a panel. the five other figures are ordered in the same way for each respective characteristic and case type. no. 3:341] broadening diversity on the bench 383 for judges with prior prosecutorial experience, the difference is even more apparent in the predicted probabilities. for non-criminal (civil) cases, panels with a past prosecutor have just a 45.1% probability of reaching a conservative decision. in contrast, in a criminal case with a prosecutor on the panel, this probability is significantly higher at 74.5%. by looking solely at the predicted probabilities, however, one might think that the presence of prosecutors does not have any effect on the panel decision, as all outcomes in criminal cases are more likely to be conservative. yet we know from the odds ratios that in criminal cases, one prosecutor decreases the likelihood that the decision is more liberal by 14.4%, and with two or more, the probability decreases by 8.8%. thus, while predicted probabilities allow us to analyze the specific differences for each scenario, as well as observe the predicted probability not just of a “more liberal” decision but also of a liberal, mixed, and conservative decision, we cannot rely on them alone. both predicted probabilities and odds ratios are needed to gain a comprehensive picture of the data results and their implications.67 b. discussion of panel effects results although not every result matched up with the hypotheses, the results have opened up new avenues for discussion and possible interpretations. the main takeaway, however, is that panel effects and the presence of certain characteristics are strong and highly significant in determining the overall panel decision. in contrast, individual characteristics do not affect one’s own vote, which is consistent with past studies’ conclusions. in a majority of cases, the presence of females and blacks on a panel of appeals court judges increases the odds of a more liberal 67 the figures for predicted probabilities of individual judge characteristics have not been included, as there are very few differences among the probabilities of a conservative, mixed, or liberal vote regardless of case type or the characteristics of the judge. 384 columbia journal of race and law [vol. 8:2 ruling. the finding that the presence of a prior prosecutor on a panel decreases the likelihood of a liberal outcome only in criminal cases confirms the hypothesis that one’s past career experiences can shape one’s view of important issues, such as the criminal justice system. although this note could have made the panel variables binary to see the effect of the mere presence of certain characteristics on voting behavior, it is useful to look for any discrepancies between panels with more than one female and panels in which the female is outnumbered. as it turns out, we were able to observe these differences for several variables. perhaps what was most surprising about the panel characteristics results were the variables femalepanel and blackpanel when interacted with gendercase and racecase, respectively. here, the presence of one or more females or blacks significantly decreased the likelihood of a more liberal decision in gender and race cases, which was the opposite of the original hypothesis. this note’s original hypothesis was that the presence of females and blacks would raise the probability of a more liberal outcome in cases involving, say, employment discrimination, because not only do females and racial minorities bring in a new perspective to the law, but they might also seek different results that benefit litigants similar to them in regards to gender and race. furthermore, the concept of panel effects implies that the visual presence of female or minority judges makes other judges on the panel more aware of and sensitive to issues of gender or racial discrimination, whether the female or minority judges say something to that effect or not. there are several possible explanations for why these results did not adhere to this theory, other than the coding of gender and race cases. as mentioned, the coding of the dependent variables on a scale of 1 to 3 captures only the final vote. it is thus difficult to account for the details of the actual opinion and case. that there are so few gender or race cases with two or more females or blacks on the panel also explains the odd results in those cases. additionally, although federal judges have discretion, the law and the facts often dictate a particular outcome in cases and thus no. 3:341] broadening diversity on the bench 385 limit what judges can do.68 the relatively low reversal rate on the united states courts of appeals reveals another possible reason for the results, especially since the dataset and the model did not include this factor.69 another possible reason for the results is that the effects of personal traits that we might assume to be very strong in forming one’s perception of the law are “washed out by the preappointment screening process.”70 the screening process is a careful one, with each of the president’s nominees undergoing an extensive vetting process by the senate. it would be difficult to confirm a judge with notoriously strong political stances—especially in regards to gender or race issues—because of some people’s fear that she would allow those beliefs to cloud her judgment. a tight ideological control over the judicial selection process is often the main reason why certain judges are nominated and ultimately confirmed over others. the two characteristics of race and gender are especially sensitive today—they are often deemed diversity “plus factors,” but only when those judges already fit the bill in every other way. sometimes this means relatively more conservative judges, especially since most have been through the same elite educational and professional processes. 68 sunstein, supra note 18, at 83. 69 united states courts, statistical tables for the federal judiciary, appeals terminated on the merits, http://www.uscourts.gov/sites/default/files/statistics_import_dir/b05dec01.p df; http://www.uscourts.gov/sites/default/files/statistics_import_dir/b05dec02.p df (last visited mar. 27, 2018). in 2001, the percent of cases reversed was 9.2%. in 2002, the rate was 9.6%. id. “using quantitative empirical methods to analyze judicial decisions has some inherent limitations because it is simply impossible to control for all the relevant factors underlying a decision.” cross, supra note 1, at 6. in fact, it is virtually impossible to even name all the relevant factors underlying each judicial decision. in a perfect world, we would be able to account for everything, but given missing information from datasets and for the sake of keeping this note’s long model clean and manageable, some factors had to be left out. however, in spite of this inevitable obstacle, this note still included the most significant judge and case characteristics that might determine policy preferences or otherwise affect the outcome of an appeal. 70 cross, supra note 1, at 72. 386 columbia journal of race and law [vol. 8:2 federal judicial positions are not jobs open to just anyone, as can sometimes be the case with elected office. for example, a conservative president might appoint minorities while still ensuring that they are conservative. thus, voting similarities between black and white judges either indicate that the courts represent “a traditional, conservative black elite, selected for its behavioral conformity” or that “a combination of institutional, role, and self-imposed demands” pressures black judges to conform to the voting patterns established by a dominantly white legal system.71 this pressure to conform is also known as “collegial concurrence,” which occurs when one judge joins his colleagues and refuses to dissent publicly.72 as mentioned, a major issue with studies like these is not having a sufficient number of female or minority judges, especially in the earlier decades. because females and blacks may be relatively new to the system, some might be reluctant to dissent from the majority too often or be overly vocal in presenting new perspectives that might advance a particular group’s rights. in an attempt to be perceived favorably by the other judges and preserve the spirit of consensus and unanimity on appellate panels, they might yield when confronted with two other judges already in agreement.73 in other cases, female or minority judges might overcompensate to appear objective and fair in certain cases, thinking that others will expect them to vote liberally. one study found that black males did not vote more liberally than white males in racial discrimination cases, and suggested that “blacks avoid partisan identification with issues so salient to their own career and life opportunities.”74 an analogous situation is when a female or minority politician tries not to allow gender or race to be her identifying feature as a policymaker, and thus does not advocate for her own “interest group.” for example, in the federal district courts, because black judges tend to identify as liberal, some might 71 thomas m. uhlman, black elite decision making: the case of trial judges, 22 am. j. pol. sci. 884, 892 (1978). 72 sunstein, supra note 18, at 148. 73 id. at 15. 74 gottschall, supra note 65, at 172. no. 3:341] broadening diversity on the bench 387 expect that they will vote in ways more sympathetic to criminal defendants, especially black defendants.75 however, studies have shown that there are no significant differences between black and white judges in criminal cases.76 another explanation for these conformity effects is that one might genuinely become convinced that the other judges have a point if they are all in agreement. experiments have indeed shown that people are easily swayed by and highly susceptible to fellow colleagues’ opinions.77 another related explanation is not that the female or black judge wants to appear neutral, but rather that the other two male or white judges on the panel do. they may be wary of the potential influence the female or black judge may have on the decision-making process and thus overcompensate to try not to let that affect their judgment. finally, there is one more explanation for these results that is especially applicable to the methodology. one study found that in controversial cases involving abortion or the death penalty, judges’ individual votes were “impervious to panel effects,”78 and any possible influence their colleagues might have had were outweighed by their own firm convictions.79 debating and discussing issues that the judges already felt strongly about may have only pushed them further toward what they initially believed. this entrenchment may help explain why the presence of females and blacks had an overall liberal effect on the decisions, but was not strong enough for genderor race-specific cases. thus, although kastellec stated that panel effects may be apparent only in the more ideological cases as opposed to the “more routine cases,”80 these results show that it might actually be the opposite. 75 susan welch, michael combs & john gruhl, do black judges make a difference?, 32 am. j. pol. sci. 126, 127 (1988). 76 id. at 128. 77 sunstein, supra note 18, at 74–75. 78 id. at 62. 79 id. 80 kastellec, supra note 21, at 380. 388 columbia journal of race and law [vol. 8:2 whether because of the screening process, selection effects, normative social influences, or case type, there are numerous explanations for why females and blacks vote more liberally across all cases but less so on genderor racespecific cases. whatever the reason, it makes sense that the same does not hold true for past prosecutors in criminal cases. the trait of prior prosecutorial experience is not relatively new to the federal bench, and there is no pressure for judges with such experience to act in a particular way or to defy stereotypes. the possibility of pressure to conform may be a new issue with the judicial system that is even worse than simply voting according to one’s ideology or beliefs. c. implications depending on how one sees it, the liberal influence female and black judges have on a decision in the court can be both a good and bad thing. some might find that this only confirms the need for greater diversity on federal courts in order to counter the long-held judicial legacy of white male judges. other conservatives may fear what changes this may bring. still, they might take the decreased likelihood of a liberal decision on gender or race cases when females or blacks are on the panel as a sign that the system is not flawed, and judges are not actually being unnecessarily swayed into voting differently. at the very least, it might indicate that we should focus on other flaws within the system. based on the results for prior prosecutors, advocates for criminal justice reform may want to pay more attention to judicial appointees and support nominees who have more unique career backgrounds. perhaps it is still too soon to make any of these conclusions about the u.s. courts of appeals or federal courts at large. it is difficult to make any definitive statements until the databases are updated to include cases that happened over the past fifteen years, a time period during which much tumultuous social change has occurred, along with many controversial cases covering topics that have everything to do with gender, race, and criminal justice. no. 3:341] broadening diversity on the bench 389 even when the bench has diversified more and there are more relevant cases included in the sample, we still must be cautious about making generalizations. after all, we can see from the summary statistics in table 2 that females, blacks, and hispanics made up only 3.42%, 4.87%, and 1.56% of the total appeals court judge population in the dataset, respectively. it is thus surprising that past studies have made broad conclusions about female voting behavior when examining only one or two specific types of cases over just a few years. even if the panel influences were present and meaningful, they may not have been strong enough to outweigh the dominant influence white male judges have, something not captured in the simple coding of a 1, 2, or 3 decision. it is more difficult to apply the same possible explanations given for gender and race to prior prosecutorial experience. the presence of a prior prosecutor on a criminal case increases the chances of a more conservative decision that does not favor the defendant. past studies have discovered bipartisan consensus and similar voting behavior across party lines for criminal cases.81 this note found that prior experience as a prosecutor does create differences in voting on criminal cases, which has interesting implications. these significant effects on criminal outcomes suggest that the pursuit of diversity in career background is just as important as the pursuit of diversity of other characteristics in reflecting the entire nation’s views, especially given the homogeneity of most federal judges’ career paths.82 thus, if a future presidential administration wants to follow 81 sunstein, supra note 18, at 61. 82 out of president clinton’s 61 appointees to the u.s. courts of appeals, 37.7% of had prosecutorial experience, and only 29.5% lacked either prosecutorial or judicial experience). sheldon goldman & elliot e. slotnick, introduction: clinton’s judicial legacy, 84 judicature 227, 244, 249 (2001). see also new york times editorial board, the homogeneous federal bench, new york times (feb. 6, 2014), https://www.nytimes.com/2014/02/07/opinion/the-homogeneous-federalbench.html [https://perma.cc/sc6j-l68f ] (85% of president obama’s nominees to the federal bench have been corporate attorneys or prosecutors, and fewer than 4% have worked in public interest organizations). 390 columbia journal of race and law [vol. 8:2 president nixon’s lead and appoint judges who are tough on crime, it might look for prior prosecutorial experience. if a presidential administration prioritizes reforming the criminal justice system, it might do well to nominate judges with career backgrounds that differ from the prosecutorial norm. overall, the results are not as straightforward as the original hypotheses, which were that the presence of females and racial minorities would increase the likelihood of a more liberal decision, particularly in genderand race-related cases, and that the presence of past prosecutors would decrease the likelihood of a more liberal decision in criminal cases. however, if the hypotheses were sustained, this note would not have been able to delve deeper into the more detailed and realistic aspects of judicial decision-making. it would have been easy to attribute and reduce deliberations to judges’ personal characteristics, but the results instead showed that there are many other equally important social and psychological factors that cannot be fully accounted for in empirical studies. phenomena like the pressure to conform, especially as somewhat of a newcomer to the bench, often slip the minds of the public when we discuss federal judges and minority representation. this could mean that more attention should be paid not only to the relationship between personal attributes and voting behavior but also to the other pressures and difficulties that certain judges must face. a possible area of extension in the study of judicial outcomes relates to the process by which state court judges are selected. comparing voting patterns between federal and state courts would be able to give some insight into differences between decisions made by judges who were appointed and decisions made by judges who were elected by the public. although this note alone cannot tell us which method is preferable, one study83 stated that the election of state judges has a significant impact on the religious, 83 bradley c. canon, the impact of formal selection processes on the characteristics of judges – reconsidered, 6 l. & soc’y. rev. 579, 588 (1972). no. 3:341] broadening diversity on the bench 391 educational, and career diversity of elected judges.84 one might then conclude that bringing the selection process to the masses means selecting judges with ideological views and characteristics that align with those of the constituency. this is not to say that the appointment system is devoid of politics, however. according to one study, appointing presidents follow one of two models that determine their judicial nominations.85 the first is the policy model, in which presidents seek to appoint judges who have similar policy preferences—this theory is supported by the results. an example of the policy model is when the nixon administration sought to appoint “law and order” judges who were tough on crime.86 the second is a partisan model, in which presidents try to reward party loyalty by nominating judges whose ideological views reflect those of the judge’s population.87 yet despite the general understanding that many nominated judges can be political activists who reflect “the values and outlook of the appointing administration,”88 judicial appointments are not entirely driven by politics either. presidents do not have unlimited control, as the judge must be palatable to the senate. there are structures in place to prevent extreme judges from being appointed to the bench. judicial appointments are the product of many factors: competence, ideology and party affiliation, and, of course, being in the right place at the right time.89 nominated judges are drawn from a list of possible candidates that usually consist of a “vast network of friends, acquaintances, and friends of friends.”90 all things 84 id. 85 michael w. giles, virginia a. hettinger & todd peppers, picking federal judges: a note on policy and partisan selection agendas, 54 pol. res. q. 623, 627–28 (2001). 86 gottschall, supra note 65, at 166. 87 giles et al., supra note 85, at 627. 88 sheldon goldman, judicial appointments to the united states courts of appeals, 1967 wis. l. rev. 186, 214 (1967). 89 id. at 186. 90 id. at 189. 392 columbia journal of race and law [vol. 8:2 considered, however, it is still an elite, largely closed-off, and private process that is only open to a select few. because the study has found that there are indeed panel effects that either increase or decrease the likelihood of a more liberal decision, it is important that we now turn to another one of this study’s original questions, which is whether or not these findings should increase calls for greater diversity on the courts. more simply, now that we have confirmed the influence of the presence of females, racial minorities, and past prosecutors on judicial outcomes, is the pursuit of diversity still desirable? our initial reaction might be an unqualified yes because of all of diversity’s benefits, both for its descriptive and substantive representation. the news that there are now a greater number of “non-traditional” judges on the u.s. courts of appeals has been heralded as a positive development.91 there is the symbolic diversity element that “helps promote trust in the [legal] system.”92 the image of judges who are not white or male can serve as visible role models for young students. there is also, of course, the substantive diversity that comes from the inclusion of new perspectives and competing arguments. this increases the potential for dissent, which increases “the probability that the law will be followed.”93 diversifying courts can also check extreme, lawless decisions, 91 as of july 2014, the u.s. courts of appeals is composed of a majority of “non-traditional” judges with the appointment of pamela harris to the fourth circuit. barry j. mcmillion, demographic diversity on the u.s. courts of appeals: an update, congressional research service report, government and finance division (2014). “nontraditional” here refers to those who belong to “demographic groups from which, historically, individuals were seldom, if ever, selected for federal judgeships,” namely females, african americans, asian americans, and hispanics. id. before president obama took office, non-traditional judges only comprised 39.4% of the active federal appeals court judges, and there were no asian american appellate court judges. today, white men are still the plurality of all active appeals court judges, but the percentage of nontraditional judges is now 50.3%, with 86 non-traditional and 85 traditional judges. id. 92 hsu, supra note 13, at 115. 93 sunstein, supra note 18, at 135. no. 3:341] broadening diversity on the bench 393 something especially critical in cases when the law is ambiguous. one qualitative study uses the example of japanese american internment to support the claim that appointing more asian american and other racial minorities to the bench can “ensure that the legislature never passes similar legislation.”94 a better understanding of racial issues can lead to a more inclusive rule of law that takes all perspectives into account. all of this assumes, however, that conformity effects will not be as prevalent, and that minorities on the courts will voice their true opinions. scholars claim that the ultimate goal here is “diversity of reasonable views,”95 and that the president and senate should actively pursue such a range of opinion. without this diversity, we risk facing unequal treatment and application of the law, and panels that give extreme or unfair rulings. judicial appointments are thus an opportunity for presidents to leave a legacy that outlasts their tenure and shape the court system into one that better resembles the changing society it serves.96 however, this simple view has made “diversity” a buzzword used to justify numerous policies and settle all sorts of arguments. after all, it is difficult to criticize a principle that is a fundamental american value. is it an objectively “good” thing that the presence of females and minorities increases the probability of a more liberal decision, and is it an objectively “good” thing that the presence of past prosecutors increases the probability of a conservative decision? if the law is truly to be unbiased and binding, judges should vote the same way regardless of who else is on the panel. symbolic and substantive diversity aside, increased diversification and the subsequent shift toward the left over time may not necessarily be a positive 94 hsu, supra note 13, at 119. 95 sunstein, supra note 18, at 138. 96 philip rucker, obama pushing to diversify federal judiciary amid gop delays, washington post, mar. 3, 2013, https://www.washingtonpost.com/politics/obama-pushing-to-diversifyfederal-judiciary-amid-gop-delays/2013/03/03/16f7d206-7aab-11e2-9a75dab0201670da_story.html [https://perma.cc/lj3n-zw6p]. 394 columbia journal of race and law [vol. 8:2 development. regardless, arguments that diversity on the bench leads to judicial impartiality because it “ensure[s] that a single set of values or views do not dominate judicial decision-making” are compelling and worth considering.97 another argument for the continued support of diversification within the judicial branch is that this is an overdue process to counteract years of judges who may not have had certain groups’ best interests at heart in the past. there have also been calls for other kinds of diversity in religion, sexual orientation, and professional experience. while this note looked at prior prosecutorial experience, many liberal groups have also urged the government to nominate fewer prior corporate lawyers and more attorneys with experience in academia or the public interest, such as public defenders. most of the time, federal judges do not come from civil rights organizations or small practices.98 prior public defenders might counteract a bias against criminal defendants that some prior prosecutors may hold, and judges who have advocated for clients at lower levels of socioeconomic status might place more emphasis on achieving justice for all americans, and not just for a select few. the next question, then, is how to feasibly achieve greater diversity, especially if citizens, let alone future presidents, do not see the issue as a major priority. it is difficult to advocate the importance of judicial diversity as there is no specific group directly hurt by the lack of action, and because there are no feasible short-term solutions. furthermore, the ultimate decision is beyond the public’s access and control, as there is usually a multitude of concealed reasons for confirming or rejecting a candidate. the process could be modified to one that gives the public a greater role in the selection process, or people could demand that deliberations be made public, but this might too closely resemble an election method of selection. 97 sherrilyn a. ifill, racial diversity on the bench: beyond role models and public confidence, 57 wash. & lee l. rev 405, 411 (2000). 98 id. at 407. no. 3:341] broadening diversity on the bench 395 one suggestion made in the past is to require at least one democrat and republican on each panel.99 while this might prevent any ideologically extreme panels from forming, it becomes more complicated as we learn that other background characteristics have a significant effect as well. requiring that there be, say, at least one female or one black judge on every panel would be complex and controversial, but worth exploring. furthermore, the practice goes against the very idea that judges are not policymakers, and whose duty consists solely of following the law. there are thus many practical questions to consider, one of which begins with the fact that the public is relatively unfamiliar and unconcerned with the lower federal courts. it is hard to imagine a scenario in the near future in which people become so invested in the issue that a legislative act is passed to transform the way the u.s. courts of appeals currently operates. there has also been much opposition to efforts to broaden diversity on the courts. according to critics, “ideologues have their place, just not on the bench.”100 some find the push for more women and racial minorities on the bench distasteful because they believe this affirmative action practice is tantamount to lowering one’s standards for qualified judges, falsely assuming that there are not any available competent female or minority judges.101 these political obstacles show that appointees can be easily rejected and that reaching a critical mass of minority judges in federal courts will be a long, arduous process.102 however, as law school populations become increasingly diverse, there will also be a more diverse pool of legal talent and ability from which to choose future judges. these students can also raise awareness of the process of judicial selection at both state and federal levels. 99 kastellec, supra note 21, at 379. 100 rucker, supra note 96. 101 id. 102 sylvia r. lazos vargas, does a diverse judiciary attain a rule of law that is inclusive?: what grutter v. bollinger has to say about diversity on the bench, 10 mich. j. race & l. 101, 109 (2004). 396 columbia journal of race and law [vol. 8:2 despite the disagreements over diversity on the judicial branch, every american should view the appointment of federal judges as an important process that affects us all, rather than a clandestine and trifling matter that concerns only presidents and congress. we can conclude that greater diversity can influence decisions in positive ways. we can also conclude that while judges do not always follow the law in a completely objective manner, their discretion is still often restricted by the rule of law. thus, although judges should not be appointed to represent the interests of certain groups, they should still interpret the law in a way that reflects the diverse composition of our nation. personal characteristics seem to make a difference on panels, and what we decide to do with that information is critical to future laws and policies. as much as we strive for objectivity on the courts, we must accept that the legal system can never be fully removed from ideological policymaking. we should also understand that this reality is not necessarily an unfortunate one and can be used to help our nation reach the ideal of equal justice. v. conclusion this note has examined the voting behavior of judges on the u.s. courts of appeals, and has found that panel effects are present and influential in the decision-making process. while personal characteristics like race, gender, and prior prosecutorial experience do not appear to affect individual judicial voting, the presence of a judge with one of these attributes can influence the way the other two judges on the panel vote, which then affects the final outcome. although the results do not completely match up with the initial hypotheses, the findings reveal something even more interesting about the dynamic of federal circuit courts and three-judge panels. empirical evidence cannot tell us how panels should be organized or what federal judges should do, but it has provided much insight into the way judges think. this note has contributed to the current literature on voting behavior on federal appellate courts, particularly regarding panel effects, by filling in some of the holes that no. 3:341] broadening diversity on the bench 397 exist from past studies’ methodologies. specifically, this note increased the number of cases as well as the types of cases included in the study, and examined a greater time span of 77 years. the judge attributes this note focused on also went beyond party and ideology, which has been the focus of most key studies on judicial voting. prior prosecutorial experience has not been a characteristic of major interest in the past, and although both race and gender have been explored to some extent, this note’s adjusted methodology allowed for new observations and conclusions about the effects of having females, racial minorities, and prior prosecutors on the bench. possible areas to explore in future studies include looking at judges on the federal district courts; elected state judges; other attributes such as wealth, educational background, or other professional experiences; and recent data that incorporates cases dating from 2002 until the present, especially given the increased diversification of the federal courts over the past decade.103 in sum, this note finds that the presence of females and blacks on panels generally has a strong liberal effect on the panel’s final decision across all cases. however, for gender or race cases alone, this effect is less clear and may operate in the reverse direction. there are several possible explanations for these mixed results, namely conformity effects, clear and binding law that must be followed, or strong convictions on certain issues that will not budge regardless of who else is on the same panel. females’ and blacks’ personal policy preferences are either constrained for the many possible reasons mentioned above, or minority judges may not have the inclination to vote in favor of the female or racial minority litigant in gender and race cases in the first place. perhaps these judges were deemed “safe,” conservative judicial choices and thus nominated and confirmed for this very reason. in any event, this analysis has helped bring into light other factors that may be more important than personal traits when it comes to making decisions on the federal courts. 103 see mcmillion, supra note 91. i. introduction ii. how diversity affects voting outcomes a. diversity on the united states courts of appeals b. panel effects on the united states courts of appeals c. empirical studies of voting behavior iii. methodology a. data b. research design c. hypotheses iv. findings a. results 1. individual judicial vote 2. panel effects 3. predicted probabilities b. discussion of panel effects results c. implications v. conclusion share economy slurred speech: how the nlrb tolerates racism by michael h. leroy∗ racist speech in union representation elections is widespread and conflicts with the protections of title vii for diverse employees across different industries. these messages contain slurs, promote white supremacy, and incite fears of legal favoritism for blacks. some besmirch jews, latinos, japanese, and mormons. the rise of white nationalism motivates my empirical study of racist speech in union representation elections. my database consists of fifty-one national labor relations board cases and twenty-nine appellate court rulings on racially divisive campaign speech. in addition, the article examines nlrb cases involving picketing employees who voice racial slurs to minority workers who cross their line. the fact findings show that the nlrb tolerates almost all slurs and incitements. the board’s permissive policy conflicts with title vii’s standard for racial harassment under harris v. forklift systems, inc. this article suggests that in cases where racist speech is an issue, the nlrb should use title vii’s standard for a hostile work environment. without making this policy change, the national labor relations act opens the door for white nationalists to promote racial preference and re-segregation in the workplace. ∗ michael h. leroy is a professor in the school of labor and employment relations and the college of law at university of illinois urbanachampaign. b.a., m.a. university of illinois at urbana-champaign; j.d. university of north carolina – chapel hill. the author owes a special debt of gratitude to zachary m. johns of morgan, lewis, & bockius llp (philadelphia), who helped to clarify his analysis. 210 columbia journal of race and law [vol. 8:2 i. introduction .............................................................................. 211 a. legal importance the research question .......................... 211 b. motivation for the research question: re-emerging white supremacy .................................................................................... 213 ii. the national labor relations act: campaign speech and elections ........................................................................................... 218 a. overview .............................................................................. 218 b. the nrlb’s policies on racist speech ............................... 223 1. no policy (1935–1947) ..................................................... 224 2. “laboratory conditions” in general shoe (1948–1962) . 227 3. sewell (1962) and midland life insurance co. (1982) .. 231 iii. research methods and findings: racist messages in nlrb elections ........................................................................................... 234 a. sample and research methods ........................................... 236 b. data and fact-findings ...................................................... 237 1. statistical findings for nlrb rulings .......................... 238 2. statistical findings for federal appellate court rulings 241 iv. resurgent white supremacy: employer liability under title vii ............................................................................................ 242 a. resurgence of white supremacy ........................................ 243 b. employer liability for racial harassment: high risk ..... 245 c. employer liability for disciplining employees for racial harassment: low risk ................................................................ 256 d. conflicting treatment of racist speech: employer dilemma 260 v. conclusion ............................................................................ 270 vi. table of cases ...................................................................... 272 a. nlrb cases arranged by decision year ........................... 272 no. 1:209] slurred speech 211 b. federal appeals court cases arranged by decision year 274 i. introduction a. legal importance the research question does the national labor relations act1 (nlra) protect racist speech by employees?2 this article finds that the national labor relations board (also called nlrb, or board) often tolerates these messages.3 my data come from cases involving campaign speech in union representation elections.4 this article also examines a smaller number of cases involving racist speech on picket lines during labor disputes.5 here, too, the nlrb often rules that employees engage in protected concerted activity when they voice racial slurs.6 this article concludes that the nlrb should afford 1 the national labor relations act, july 5, 1935, c. 372, § 1, 49 stat. 449; june 23, 1947, c. 120, title i, § 101, 61 stat. 136 (also called nlra). 2 throughout this article, i use “racist” and “racially inflammatory” to describe different types of speech in my study. i employ both terms because speech varies in content and tone. one example of racist speech appears in detroit newspaper agency, 342 n.l.r.b. 223, 268 (2004) (discussed infra note 222), where a striker who blocked a worker’s car shouted, “you fuckin’ bitch, nigger lovin’ whore.” that is racist, in my view. a less crude form of speech that i label as racially inflammatory appears in n.l.r.b. v. bush hog, inc., 405 f.2d 755, 757, n.2 (5th cir. 1968) (employer made statement that union donated funds to further racial integration). for a comprehensive study that bundles these types of speech under the single heading “racist speech,” see mari j. matsuda, public response to racist speech: considering the victim’s story, 87 mich. l. rev. 2320, 2321 (1989) (proposing formal criminal and administrative sanctions as “appropriate response[s] to racist speech”). 3 see infra part iii.b. 4 see infra part iii.a. 5 see infra part iv.d. 6 see infra part iv.d. section 7 of the nlra provides employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 u.s.c. § 157 (2014). 212 columbia journal of race and law [vol. 8:2 less legal protection for racist speech by adopting title vii’s standard for hostile work environment.7 there are three justifications for my proposal. first, these nlrb rulings undermine title vii’s prohibition of racial harassment.8 this means that if employers discipline employees who use racist speech in these campaigns, employers face an unfair labor practice ruling or a re-run election under the nlra.9 second, racist speech is more pervasive.10 nlrb policies shelter the type of racist speech that occurred when workplaces were formally segregated.11 this approach is outdated and conducive to exploitation by a 7 see infra part v. 8 see infra part iv.d. 9 title vii of the civil rights act of 1964, pub. l. no. 88-352, § 703, 78 stat. 255 (codified as amended at 42 u.s.c. §§ 2000e to 2000e-17) (2014) (also called title vii). 10 monica stephens, geography of hate: geotagged hateful tweets in the united states, humboldt state university, http://users.humboldt.edu/mstephens/hate/hate_map.html# (last visited dec. 18, 2017). the map was based on all geo-coded tweets in the united states from june 2012 to april 2013 that contained hate words such as “fag,” “nigger,” and other offensive terms. see also pete burnap & matthew l. williams, us and them: identifying cyber hate on twitter across multiple protected characteristics, 5:11 epj data sci. (2016) (adapting algorithms for spotting online religious hate to identify hate on the basis of race, disability, and sexual orientation). against this backdrop of the broad prevalence racist speech on twitter, i note that black employees comprise a significant minority of employees represented by labor unions. gerald mayer, union membership trends in the united states, cong. research service (aug. 31, 2004), at crs-14 (available online at https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1176&co ntext=key_workplace). 11 part i.b, infra, elaborates on the history of labor unions with racial segregation and racist speech. for example, compare a 1950 case (happ bros. co., inc., 90 n.l.r.b. 1513 (1950), where employer representative told an employee, “don’t you know if you all get the union up here you’ll be sitting up here by niggers?”) and a 2006 case (airo die casting, 347 n.l.r.b. 810, 811 (2006), where an employee screamed at a black employee, “fuck you, nigger”). no. 1:209] slurred speech 213 new generation of white supremacists. third, nlrb speech doctrines have unwittingly opened the door to form whitesonly labor unions.12 some cases in this data set protect prounion messages that promote white worker interests. no federal law—in this case, the nlra—should offer a platform to re-segregate the american workplace. the nlrb’s permissive speech doctrine is rooted in its broad interpretation of protected concerted activity under the national labor relations act. to fulfill the purposes of this labor law, section 7 provides employees a right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”13 today, the nlrb applies this law to contexts that lawmakers never imagined in 1935—for example, when employees post comments on social media.14 one problem, however, is that digital platforms are used for racist tweets, facebook posts, and emails.15 the nlrb should narrow its speech doctrine for representation elections and concerted activity by denying protection to speech that expresses racial animus. b. motivation for the research question: reemerging white supremacy 12 see infra part ii.a–part ii.b. 13 29 u.s. code § 157, nlra, supra note 6. 14 see christine neylon o’brien, the top ten nlrb cases on facebook firings and employer social media policies, 92 or. l. rev. 337, 346–48, 372, 375 (2014). see also three d llc d/b/a triple play sports bar & grille v. n.l.r.b., 629 f. app’x 33 (2d. cir 2015) (employer rules prohibiting negative communication on social media about management violated right of employee to “like” facebook message by a co-worker that unfavorably commented on the store owner’s failing to withhold taxes properly). 15 e.g., michael h. leroy, #academicfreedom: twitter and first amendment rights for professors, 90 notre dame l. rev. online 158, 164 (2015); lyrissa barnett lidsky, incendiary speech and social media, 44 tex. tech l. rev. 147 (2011); and alexander tsesis, inflammatory speech: offense versus incitement, 97 minn. l. rev. 1145, 1166–73 (2013). 214 columbia journal of race and law [vol. 8:2 white supremacy has returned to america’s mainstream. as the ku klux klan formed and grew in the aftermath of the civil war, they organized mob actions16 and terror campaigns.17 blacks were targets, but so were their white sympathizers.18 congress held hearings to consider 16 see the account of rep. luke poland—a proponent of the ku klux klan act of 1871—summarizing testimony of a white man from ohio who taught in a mississippi school for freed slaves: while thus quietly pursuing his duties the house where he lived was one night surrounded by a large body of armed and disguised men; he was taken by them from his bed in his night-clothes, and in that condition to a swamp at some distance and terribly beaten. he succeeded in escaping with his life. i asked him what they said to him, and what reason, if any, they gave for the act. his answer was, ‘all they said to me was that ‘they would learn me not to come to mississippi to make niggers as good as white folks.’’ cong. globe, 42nd cong., 2d sess. 494 (may 30, 1872). 17 see cong. globe, 42nd cong., 2d sess. 493 (may 30, 1872): it was perfectly clear upon all the evidence taken by the committee that the secret organization known popularly as the ku klux, but having really various other names, was set up for the purpose of keeping the negroes in a state of subjection to the old southern rebel element…. the strength of numbers in which the klans generally rode, armed to the teeth, the bloody work they often made, were quite enough to excite the fears of braver and less defenseless people than the poor freedmen of the south, but probably their horrible and ghostly attire by midnight torchlight was as potent of influence as their lashes or their pistols. 18 see gen. george thomas’s report, cong. globe, 42nd cong., 1st sess. 284 (apr. 4, 1871): violence is openly talked of. the editorials of the public press are such as to create the most intense hatred in the breasts of ex-rebels and their sympathizers. the effect of this is to cause no. 1:209] slurred speech 215 legislation to combat klan violence. many witnesses described the extreme terror inflicted by white supremacists.19 by the 1870s, the ku klux klan’s effectiveness was thwarted by a combination of military and court actions.20 the group re-emerged, however, in the early 1900s in response to thomas dixon’s racist trilogy that romanticized the klan.21 the ku klux klan sought to segregate the work of black people, a group whom they viewed as suited only for menial agricultural labor.22 for the first half of the twentieth century, labor unions co-opted this ideology in disturbance throughout the state [tennessee], by inciting the ruffianly portion of this class of citizens to murder, rob, and maltreat white unionists and colored people. 19 see the testimony of a white man, john dunlap, describing how disguised klansmen attacked him and a black man named james franklin on july 4, 1868: “they then had franklin undress himself, and then blindfolded him, and they then whipped him with what i supposed to be a leather thong, each one of their number striking him five strokes apiece, and then left him to return to his home.” cong. globe, 42nd cong., 1st sess. 288 (apr. 4, 1871). dunlap was also whipped and ordered to leave town on the following monday. id. in nashville, the klan accosted dunlap again, “when about sixty disguised men, armed and mounted, rode into the public square, hallooing they wanted dunlap and fried nigger meat.” id. 20 see roland g. fryer, jr. & steven d. levitt, hatred and profits: getting under the hood of the ku klux klan, national bureau of economic research, nber working paper 13417 (sept. 2007), at 1, available in file:///c:/users/m-leroy/downloads/ssrn-id1014794.pdf. 21 i refer to thomas dixon, the leopard’s spots (1902), thomas dixon, the clansman (1905), and thomas dixon, the traitor (1907). a movie in 1915, the birth of a nation, further popularized the klan. evidence of the klan’s political prominence appears in a rally of 35,000 robed klansmen in washington, d.c. in 1925. see philip bump, the day the ku klux klan took over pennsylvania avenue, wash. post (may 6, 2016) (embedding washington post coverage of the kkk’s rally on august 8, 1925). 22 rory mcveigh, structural incentives for conservative mobilization: power devaluation and the rise of the ku klux klan, 1915– 1925, 77 soc. forces 1461, 1476 (1999). 216 columbia journal of race and law [vol. 8:2 bylaws that mandated whites-only or segregated locals.23 by the 1940s, however, labor’s segregationist practices were challenged. the supreme court created a union’s duty of 23 w.e.b. dubois, the negro american artisan 87–95, 100 (1912), citing many examples from a national survey of labor unions. a sample includes: gardeners’ protective union (no negro members; and officer responded, “i have never heard of a good negro gardener”); machinists’ helpers and laborers’ union of washington, indiana (contracts with employers had language not to hire “any negroes or foreign men for twenty years”); order of railway conductors of america (membership limited to ‘any white man’); cutting, die and cutter makers (‘nothing doing on the negro’); brotherhood of locomotive firemen and engineermen (bylaws and constitution deny membership to negroes); international brotherhood of boiler makers, iron ship builders and helpers of america (‘there is a future for the race but it must not be forced on the white race’); american wire weavers’ protective association (“admits only white males”); the paving cutters’ union of the united states and canada (‘the white man will not, especially those in the south . . . tolerate the negro to be on the same level as himself’); waycross, georgia, trade and labor assembly (secretary believes that “negro workers are ‘treacherous and unreliable’”); georgia federation of labor (some locals ‘absolutely bar negroes from membership’); trade assembly of fort worth, texas (in skilled crafts, ‘negroes have not been admitted’); federation labor union of dallas, texas (barring all negroes due to ‘ingrained prejudice towards anything that looks to the members like an approach towards social equality’); marshall, texas, trades and labor council (negroes ‘cannot . . . stick as union men; will scab in spite of all that can be done’); central labor union of miami, florida (“admitting negroes has a ‘tendency to lower wages and self-respect of white mechanics and casts a stigma of association’”); labor assembly of lawton, oklahoma (no negro members and reporting, “‘we are not troubled with them to any extent’”); temple, texas (“‘nearly all men raised south of mason and dixon’s line do not want to give the negro any chance to become expert mechanics.’”); teachers’ union of san antonio, texas (barring all negroes, reporting that such membership is “‘unthinkable because it means social equality which saps the foundations of race purity’”); texas state federation of labor (“it is generally understood that the white trades unions of texas do not admit colored people to membership,” and furthermore, that the “negro is marked with a color that distinguishes him from other poor working men”); and emporia, kansas, trades and labor council (no negro members; “negroes should be treated white but kept separate.”). no. 1:209] slurred speech 217 fair representation.24 this legal duty was used on a case-bycase basis to abolish formal segregation in labor unions but did not address the ku klux klan’s societal influence.25 the klan’s malignant ideology is back and appeals to many identity groups. white supremacy has its own racial music,26 internet sites,27 code language for bigotry,28 warped 24 graham v. bhd. of locomotive firemen & enginemen, 338 u.s. 232, 239 (1949) (union of railroad firemen deprived blacks employment and seniority solely because of race); steele v. louisville & nashville r. co., 323 u.s. 192, 202–03 (1944) (white union entered into agreement with railroads to promote only whites as engineers, set a cap on employment of blacks, and gave the union a right to further restrict employment of blacks); bhd. of r. r. trainmen v. howard, 343 u.s. 768, 773 (1952) (white union threatened railroad with strike unless the company signed an agreement to discontinue all train porter positions). 25 see discussion of brandenburg v. ohio, infra notes 135–137. 26 see robert futrell, et al., understanding music in movements: the white power music scene, 47 sociological q. 275 (2016), analyzing how aryan music fosters a sense of purpose and belonging to people who practice racial exclusion. popular groups are aggravated assault, bully boys, max resist, the hooligans, and skrewdriver. id. at 282. common types of music include “techno and aryan folk genres” including “fundamental doctrines common to most movement groups: aryan nationalism, whitepower, race war, anti-semitism, anti-immigration, antirace-mixing, and white victimization.” id. at 281. see also betty a. dobratz & stephanie l. shanks-meile, white power, white pride!: the white separatist movement in the united states (1997), reporting that wpm (white power music) draws participants from the kkk, christian identity sects, neo-nazis, and aryan skinheads. 27 see working class skin heads, facebook (june 6, 2016), at https://www.facebook.com/wcshsodacity/?hc_ref=pages_timeline&f ref=nf [https://perma.cc/87ns-dtcu], stating: “this community is based on those who earn their living. those of us who scrape by to take hone our slice of the dream. we are not slaves, we are not robots we are hard working people who know that something earned is something to be proud of.” 28 see ku klux klan, klan glossary, southern poverty law center, https://www.splcenter.org/fighting-hate/extremistfiles/ideology/ku-klux-klan [https://perma.cc/jz7h-fnbb]. the hidden nature of klan-speak is demonstrated by terms such as san bog (“a password meaning “‘strangers are near, be on guard.’”) and kigy! (“a password meaning “‘klansman, i greet you!’”). 218 columbia journal of race and law [vol. 8:2 connection to christianity,29 and blood-and-soil justification for racial separation.30 while part of the white supremacy movement is not visible to the public, other elements display racially-themed crosses at a state capitol31 and participate in state adopt-a-highway litter programs.32 this background provides context for my research question and findings. ii. the national labor relations act: campaign speech and elections a. overview 29 peterson v. wilmur commc’ns, inc., 205 f. supp. 2d 1014 (e.d. wis. 2002). 30 wotan’s reich, why we blood oath (aug. 29, 2015), at https://positivethoughtproject.blogspot.com/2015/08/why-we-bloodoath.html [https://perma.cc/rw92-28yn], explaining: through our blood we carry the integrity of our ancestors. it is up to us to honor this integrity by our actions and deeds...and yes to an extent our words. when we swear an oath upon our blood we are affecting our hamingja, that “‘guardian’” and “‘luck’” that gets passed on through the generations of our folk. what we swear an oath too is equally important, because you can swear to something that isn’t worthy of you. see also southern poverty law center, matthew heimbach, “i hate freedom,” traditionalist youth network (july 7, 2013), available in https://www.splcenter.org/fighting-hate/extremistfiles/individual/matthew-heimbach [https://perma.cc/pve2-pp5b], (stating “‘this is our home and our kith and kin.’”). racial separation is advocated in national alliance, what is the national alliance, white living space, available at https://natall.com/about/what-is-the-national-alliance/ [https://perma.cc/wp6k-ybx9] (stating, “we must have white schools, white residential neighborhoods and recreation areas, white workplaces, white farms and countryside. we must have no non-whites in our living space, and we must have open space around us for expansion.”). 31 advisory bd. v. pinette, 515 u.s. 753 (1995) (ku klux klan not barred by first amendment’s establishment clause from erecting its cross in holiday display at state capitol). 32 see discussion, infra note 149. no. 1:209] slurred speech 219 this study is set in the context of collective bargaining, a legal framework for union-management relations. the national labor relations act (nlra), enacted in 1935, provides employees a right to form a union, bargain over wages, hours, and terms and conditions of employment, and engage in concerted activity for their mutual aid and protection.33 concerted activity involves traditional union activities—for example, strikes.34 but this right also applies to expressive conduct, such as verbal confrontations in labor disputes.35 concerted activity also includes employee messages in support of a union.36 the nlra prohibits employers from discriminating on this basis.37 specifically, pro-union communication is treated under the nlra as an essential step to establish a formal bargaining relationship with an employer. some unions may ask employers to voluntarily recognize them, leading to negotiations for a collective bargaining agreement that covers wages and other terms of employment.38 unions often are the party who petitions the 33 29 u.s.c. § 157, nlra, supra note 6. 34 n.l.r.b. v. erie resistor, 373 u.s. 221, 233 (1963) (“section 7 guarantees . . . include the right to strike.”). 35 see chi. typographical union no. 16, 151 n.l.r.b. 1666, 1669 (1965) (“one of the necessary conditions of picketing is a confrontation in some form between union members and employees.”). concerted activity is not protected, however, when picket line conduct “may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the act.” nmc finishing v. n.l.r.b., 101 f.3d 528, 531 (8th cir. 1996) (citing clear pine mouldings, inc., 268 n.l.r.b. 1044, 1046 (1984), enf’d, 765 f.2d 148 (9th cir. 1985)). 36 the supreme court gave substance to this right in republic aviation corp. v. n.l.r.b., 324 u.s. 793 (1945), finding that an employer’s rule prohibiting employees from wearing union buttons violated the section 7 right to form a union. 37 this prohibition is enforced under section 8(a)(1) which prohibits interference, restraint, and coercion; and section 8(a)(3), which prohibits discrimination in the form of discouraging union membership. see erie resistor, 373 u.s. at 233. 38 see jeffrey m. hirsch, communication breakdown: reviving 220 columbia journal of race and law [vol. 8:2 nlrb for a representation election; and in the past decade, the number of these elections have ranged between 1,330 and 1,614.39 a union must obtain a majority of the votes to become the bargaining agent.40 this background demonstrates the importance of campaign communication. employee messages are broadly protected, including picketing.41 employers also have a right to express their views about unions.42 often, companies the role of discourse in the regulation of employee collective action, 44 u.c. davis l. rev. 1091, 1129 (2011) (unions seek voluntary recognition in over 80% of organizing drives but employers often reject this offer). 39 nlrb, representation petitions—rc (elections held by fiscal year: 2008 (1614); 2009 (1335); 2010 (1571); 2011 (1398); 2012 (1348); 2013 (1330); 2014 (1407); 2015 (1574); and 2016 (1396), available in https://www.nlrb.gov/news-outreach/graphs-data/petitions-andelections/representation-petitions-rc [https://perma.cc/3t8t-au34]. a much smaller number of elections result from employer petitions—for example, when more than one union seeks representation. in the past ten years, the range of these elections has varied from 13 in 2013 to 60 in 2011. see nlrb, employer-filed petitions—rm (elections held by fiscal year: 2008 (25); 2009 (16); 2010 (13); 2011 (60); 2012 (14); 2013 (13); 2014 (15); 2015 (22); and 2016 (24)), available in https://www.nlrb.gov/news-outreach/graphs-data/petitions-andelections/employer-filed-petitions-rm [https://perma.cc/5b4h-2pks]. 40 john w. thomas co., 111 n.l.r.b. 226, 229 (1955). 41 see thornhill v. alabama, 310 u.s. 88 (1940), striking down state law that prohibited all picketing at an employer’s premises. however, courts have upheld some limits on picketing. e.g., cox v. louisiana, 379 u.s. 536, 555 (1965), rejecting the idea that “patrolling, marching, and picketing on streets and highways” are on the same constitutional footing as “pure speech.” the nlra allows some types of picketing and boycotts. e.g., n.l.r.b. v. retail store emp. union, local 1001, 447 u.s. 607 (1980) (section 8(b)(4)(ii)(b) of the nlra does not prohibit all peaceful picketing—for instance, picketing grocery stores in order to persuade consumers not to buy washington apples during a strike by orchard workers). 42 section 8(c) of the nlra provides: the expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the no. 1:209] slurred speech 221 describe negative effects that flow from voting for a union.43 they talk about plant closures44 and reducing benefits and wages.45 they mention that unions force workers to strike,46 and suggest that choosing a union is futile.47 employers may recognize a union voluntarily as a bargaining representative.48 but often, they decline a provisions of this subchapter [act], if such expression contains no threat of reprisal or force or promise of benefit. this provision is interpreted to mean that employers and unions are prohibited from making election speeches on company time to groups of employees within 24 hours of an election. see peerless plywood, 107 n.l.r.b. 427, 429 (1953). 43 n.l.r.b. v. gissel packing co., 395 u.s. 575, 618 (1969). in this landmark case, the court tried to illustrate the line between lawful and prohibited employer communication, stating that “an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a threat of reprisal or force or promise of benefit (quote omitted).” id. this includes a “prediction as to the precise effects he believes unionization will have on his company.” id. however, the “prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization.” id. 44 e.g., n.l.r.b. v. goya foods of florida, 525 f.3d 1117 (11th cir. 2008) 45 e.g., golden eagle spotting co., 319 n.l.r.b. 64 (1995) (employer’s message that organizing would be futile and lead to regressive bargaining from the employer violated the nlra). 46 e.g., pyramid mgmt. grp., 318 n.l.r.b. 607 (1995). 47 e.g., overnite transp. co., 296 n.l.r.b. 669, 671 (1989) (employer violated the nlra by making threats that voting for a union would be futile). 48 e.g., keller plastics eastern, inc., 157 n.l.r.b. 583 (1966) (employer may voluntarily recognize a union if there is demonstrated support from a majority of employees). in the construction industry, see john deklewa & sons, 282 n.l.r.b. 1375, 1387, n.53 (1987), enf’d. sub nom, explaining that where an employer voluntarily recognizes employees by checking union authorization cards signed by the employees, a union can become a bargaining representative through a subsequent nlrb election or clear showing of majority support. this is called a “valid card 222 columbia journal of race and law [vol. 8:2 union’s evidence of majority support.49 in some cases, they raise doubts about the validity of authorization cards.50 when an employer declines to recognize a labor organization, this group may file a petition with the nlrb for a representation election.51 this is the background for my empirical study. the nlrb’s overriding policy is to promote free choice when employees vote in representation elections.52 its lodestar is whether speech interferes by threatening or coercing employees.53 majority.” id. 49 e.g., grismac corp. 205 n.l.r.b. 1108, 1118 (1973) (in a proposed bargaining unit of 83 employees, where union presented 41 signed authorization cards, employer could lawfully decline to recognize union because two cards were signed by terminated individuals [union argued that two other people, determined no longer to be employees, should be counted in the proposed unit]). 50 e.g., bookland, inc., 221 n.l.r.b. 35 (1975) (employees were told that signing a card only meant they approved the union staying in touch with them). it is also a union unfair labor practice when a union offers to waive union initiation fees for employees who sign an authorization card. n.l.r.b. v. savair mfg. co., 414 u.s. 270 (1973). 51 see section 9(c)(1)(a) of the nlra. 52 see n.l.r.b. v. gissel packing co., 395 u.s. 575, 617 (1969) (scope of employer expression must be weighed against rights of the employees to associate without employer coercion). 53 speech is evaluated as to whether “the words themselves or the context in which they are used … suggest an element of coercion or interference.” midwest stock exchange, inc. v. n.l.r.b., 635 f.2d 1255, 1267 (7th cir. 1980). in regulating employer speech, it is common for the nlrb to consider if it created a fearful climate— for example, threats directed at employees or their employment. e.g., n.l.r.b. v. browningferris indus. of louisville, inc., 803 f.2d 345, 347–49 (7th cir. 1986) (factors include whether a threat is vague or specific, isolated or part of a pattern, and communicated by a person with authority). the nlrb also regulates employee speech to ensure that it does not interfere with free choice. more latitude is given to speech by a coworker than by a union agent. see beaird-poulan div., emerson elec. co. v. n.l.r.b., 649 f.2d 589, 594 (8th cir.1981), and n.l.r.b. v. bush hog, inc., 405 f.2d 755, 1269 (5th cir. 1968). potentially coercive speech by union officials are subjected to greater review by the nlrb. a clear case of no. 1:209] slurred speech 223 b. the nrlb’s policies on racist speech the nlra does not specifically regulate speech for representation elections. initially, the law did not even provide elections to determine majority support for a union. following the taft-hartley act, which amended the nlra in 1947, employees or employers could petition for a representation election.54 a year later, the nlrb announced in general shoe corp. a permissive speech policy: votes would not be put aside unless coercive speech interfered with the desires of employees to choose freely whether or not to have a union.55 however, this approach did not address race appeals in elections, even though some campaigns were referendums on maintaining segregated workplaces.56 as the civil rights movement gained momentum, the board in sewell (1962) announced a policy to limit racially inflammatory campaign messages.57 about twenty years later, the nlrb issued several decisions showing its ambivalence, stating a policy of setting elections in 1978,58 and returning to a more permissive policy in 1982.59 during this flip-flop, sewell remained in effect: it served as a racist speech filter on top of general shoe’s lax regulatory hand. but as this article shows below in the research findings,60 employee coercion appears in n.l.r.b. v. georgetown dress corp., 537 f.2d 1239,1241 (4th cir. 1976), where the union’s in-plant organizing threatened and harassed co-workers who would not support the union. 54 labor management relations act, 1947, ch. 120, sec. 101, § 9(c)(1), 61 stat. 143. 55 general shoe corp., 77 n.l.r.b. 124 (1948), enf’d 192 f.2d 504 (6th cir. 1951). 56 e.g., happ bros. co., inc., 90 n.l.r.b. 1513 (1950); american thread co., 84 n.l.r.b. 593 (1949). 57 see discussion, infra note 102. 58 general knit of california, inc., 239 n.l.r.b. 619 (1978). 59 midland nat’l life ins. co., 263 n.l.r.b. 127 (1982). 60 infra, part iii.b. 224 columbia journal of race and law [vol. 8:2 the nlrb’s racist speech policy has existed more on paper than in its application. 1. no policy (1935–1947) racism in the workplace was pervasive in the years and decades leading up to the following nlrb cases.61 nonetheless, in the early years of the nlra the board turned aside complaints about racial segregation.62 the nlrb’s earliest cases involving racial remarks during a union organizing campaign occurred during the end of world war ii.63 by this time, hopes were rising for integrated workplaces. president franklin roosevelt’s executive order no. 8802 required all federal contractors to end racial segregation in their workplaces.64 this directive started a slow process of integrating workplaces. desegregation was expanded by executive orders in the 1950s and 1960s, requiring federal contractors to promote equal employment 61 e.g., robert j. norrell, caste in steel: jim crow careers in birmingham, alabama, 73 j. of am. hist. 669 (1986), recounting the 1908 organizing attempt of tennessee iron and coal co. in birmingham, alabama by an all-white union. the company offered to “put all of the ‘niggers’ on one side of the mill, and on the white men on the other side” as a means to end a strike. rejecting the offer, the union counter-proposed that the company “discharge all the niggers.” id. at 671. see also booker t. washington, the negro and labor unions, 111 the atl. monthly 756 (june 1913) (blacks could be hired only to break strikes by white workers). 62 bethlehem-alameda shipyard, inc., & bethlehem steel co., 53 n.l.r.b. 999 (1943) (board approved representation petition from union that had separate auxiliary local for blacks); atlanta oak flooring co., 62 n.l.r.b. 973 (1945) (board was “unable to agree that the segregation into separate locals is, per se, a form of racial discrimination in violation of . . . the fifth amendment”); and larus & bros. co., 62 n.l.r.b. 1075 (1945) (board found that it lacked authority to pass upon racial eligibility requirements for membership in a labor organization). 63 compare edinburg citrus ass’n, 57 n.l.r.b. 1145, 1156 (1944) (“if the cio comes in the mexicans will soon have your job.”) with bibb mfg. co., 82 n.l.r.b. 338, 358 (1949) (“you can join the union if you want to work with negroes.”). 64 exec. order no. 8802, 6 fed. reg. 3109 (1941), point 2. no. 1:209] slurred speech 225 opportunity65 and affirmative action.66 these actions may have encouraged lawsuits against recalcitrant unions to end segregationist practices.67 65 president eisenhower was the first president to issue an executive order that used the term “equal opportunity,” connoting a duty not only to refrain from prohibited discrimination, but “to promote full equality of employment opportunity.” exec. order no. 10,479, 18 fed. reg. 4899 (1953) (policy preamble). 66 president kennedy’s executive order 10,925 continued the progression of presidential regulation of employment discrimination. for the first time, a presidential order used the term “affirmative action.” exec. order no. 10,925, 26 fed. reg. 1977 (1961) (policy preamble). 67 pettway v. am. cast iron pipe co., 494 f.2d 211 (5th cir. 1974) (prior to 1961, company had exclusively black jobs and exclusively white jobs); long v. ga. kraft co., 455 f.2d 331 (5th cir. 1972) (local union segregated 190 members in an all-white local, and 80 members in an allblack local); local 53 of int’l ass’n of heat & frost insulators & asbestos workers v. vogler, 407 f.2d 1047 (5th cir. 1969) (mechanics union refused to consider minorities for membership); local union no. 12, united rubber, cork, linoleum & plastic workers of am., afl-cio v. n.l.r.b., 368 f.12, 19 (5th cir. 1966) (union opposed racial desegregation of shower and toilet facilities); oliphant v. bhd. of locomotive firemen & enginemen, 262 f.2d 359 (6th cir. 1958) (union bylaws expressly included only white members); syres v. oil workers int’l union, local no. 23, 223 f.2d 739 (5th cir. 1955) (after international union of combined its white and black locals unions, its bargaining committee negotiated racially segregated seniority lines); united states v. local 638 enter. ass’n of steam, hot water, hydraulic sprinkler, pneumatic tube, compressed air, ice machine, air conditioning & gen. pipefitters, 360 f. supp. 979 (s.d.n.y. 1973) (union engaged in a work-referral system that discriminated against nonwhites, including admitting 156 white members and no black members in 1972); united states v. wood, wire & metal lathers int’l union, local union 46, 328 f. supp. 429 (s.d.n.y. 1971) (union with 1,500 members in 1968 represented only four blacks); hicks v. crown zellerbach corp., 310 f. supp. 536 (e.d. la. 1970) (union unlawfully maintained separate locals for whites and blacks); dobbins v. local 212, ibew, 292 f. supp. 413 (s.d. ohio 1968) (union with a history of excluding nonwhites perpetuated effects of racial exclusion); united states by clark v. local 189, united papermakers & paperworkers, aflcio, clc, 282 f. supp. 39 (e.d. la. 1968) (white local union discriminated against black employees); haynes v. louisiana teachers ass’n, 381 so.2d 849, 850 (1980) (consolidation of predominantly black 226 columbia journal of race and law [vol. 8:2 the early cases in my sample (1935–1947) involved allegations that an employer committed an unfair labor practice under the nlra.68 in these cases, the nlrb mentioned but did not analyze racial comments because it had no policy on campaign speech. in other words, when the nlrb ruled against employers in cases involving racist speech, there was a broader pattern of managerial interference with the right of employees to join a union. in these cases, employers appealed to white workers to reject a union to avoid working with blacks and other minorities. for example, the company president in reeves rubber told workers that if the plant had union representation the workplace “would be run by negroes from los angeles and mexicans from san juan capistrano.”69 a shop foreman in s.k. wellman co. told two employees that “if the c. i. o. got in the plant, it would be fulla negroes.”70 in planters manufacturing co. a superintendent pressured an employee to quit a union by criticizing him for joining a group that admitted blacks as members.71 he admonished employees to avoid the union or they “would be replaced by negroes.”72 teachers’ organization and white counterpart ended 70 years of racially separate teacher organizations); thorman v. int’l all. of theatrical stage emp. & moving pictures mach. operators of u.s. & canada, 320 p.2d 494 (cal. 1958) (black union members, confined to auxiliary local, were required to pay a working fee to the white union while being denied employment security enjoyed by whites); williams v. int’l bhd. of boilermakers, iron shipbuilders & helpers of am., 165 p.2d 903 (cal. 1946) (international union admitted blacks if they consented to segregation in separate locals); and james v. marinship, 155 p.2d 329 (cal. 1944) (union required blacks to join an “auxiliary” that denied them full membership to the white local). 68 these violations are set forth in §158, sections 8(a)(1)-(5) (unfair labor practices by employer). 69 60 n.l.r.b. 366 (1945). 70 s.k. wellman co., 53 n.l.r.b. 214, 215 (1943). 71 planters mfg. co., 10 n.l.r.b. 735, 744 (1938). 72 s.k. wellman, 53 n.l.r.b. at 225. no. 1:209] slurred speech 227 employer race baiting took other forms. a superintendent in edinburg citrus ass’n tried to convince employees that a vote for the union would benefit mexican workers at their expense.73 the company president in fred a. snow co. punctuated his questioning of an employee about his union activities by stating, “you don’t look like a german or a jap but you act like one.”74 sometimes, however, race appeals went the other way, intending to persuade black workers to reject unions. the general manager in arcade sunshine co. told black workers that the union was of “no service to the black face” and therefore deserved to be rejected.75 2. “laboratory conditions” in general shoe (1948–1962) in 1947 the taft-hartley act, amending the nlra, provided employers a right of free speech.76 the new law also created a category of unfair labor practices committed by 73 edinburg citrus ass’n, 57 n.l.r.b. 1145, 1157 (1944). a superintendent reportedly told an employee: you are going to get so many mexican boys in this union, mexican laborers in this union that you are going to have so many in there that they will have a majority . . . when they vote for something, what ever one of the mexican boys votes for, the rest of them is going to vote for that, and the first thing you know they will be ruling the union and will be trying to take your job. 74 41 n.l.r.b. 1288, 1292, n.2 (1942). 75 12 n.l.r.b. no. 38 (1938). 76 labor management relations (taft-hartley) act, 1947, pub. l. no. 101, § 8(b)(4)(a)–(c), 61 stat. 136, 141-42 (hereinafter taft-hartley act). congress enacted section 8(c) in response to nlrb rulings that severely restricted employer speech during representation elections. see s. rep. no. 105 on s. 1126, 1 leg. hist. of the labor management relations act 1947, 429–30 (1948) (“the committee believes these [board] decisions to be too restrictive . . . .”). 228 columbia journal of race and law [vol. 8:2 unions.77 these developments affected cases with racially inflammatory appeals. the nlrb’s first policy on campaign speech was set forth in general shoe.78 the employer disparaged the union during an organizing campaign, but there was no promise of benefit or threat of reprisal—nor any racial message.79 nonetheless, the company’s heavy-handed tactics “went so far beyond the presently accepted custom of campaigns directed at employees’ reasoning faculties that we are not justified in assuming that the election results represented the employees’ own true wishes.”80 the decision set forth a two-step review. the board acknowledged the challenge of measuring coercive influence in campaign speech, and said the “question is one of degree.”81 to make its task easier, the board also said it would only intervene where conduct is “so glaring that it is almost certain to have impaired employees’ freedom of choice.”82 applying the first step, the nlrb considered whether campaign speech rose to the level of an unfair labor 77 these violations are set forth in §158, codified in sections 8(b)(1)–(7) (unfair labor practices by labor organization). 78 general shoe corp., 77 n.l.r.b. 124 (1948), enf’d 192 f.2d 504 (6th cir. 1951). a common example of coercive speech is an employer threat to close a plant if employees vote for a union. for an insightful explanation of the board’s two-step review, see comment, labor law reform: the regulation of free speech and equal access in nlrb representation elections, 127 u. pa. l. rev. 755, 763–64 (1979). 79 general shoe, 77 n.l.r.b. at 125–27. the day before the representation election, the company president called employees into his office in groups of 20-25 people. he read a harsh anti-union address to them. the company also sent supervisors to employee homes to give a procompany viewpoint. the nlrb concluded that the company “went so far beyond the presently accepted custom of campaigns directed at employees’ reasoning faculties that we are not justified in assuming that the election results represented the employees’ own true wishes.” id. at 127. 80 id. 81 id. at 126. 82 id. no. 1:209] slurred speech 229 practice.83 next, it reviewed the disputed campaign speech to ensure that the election was conducted as “a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.”84 thus, general shoe put the nlrb in the posture of regulating campaign speech. from 1948 through 1962, roughly half of the nlrb rulings disallowed racial messages.85 following the pattern from 1935–1947, most cases involved bigoted speech against blacks. for instance, a supervisor in happ bros. co. told an employee, “don’t you know if you all get the union up here, you’ll be sitting up here by niggers?”86 in american thread co., a superintendent told a worker, “you will work side by side with negroes sharing the same rest rooms.”87 company propaganda in bibb manufacturing co. promoted the idea of preserving racial segregation. its newspaper said that a labor group “would force white girls to use the same rest rooms and restaurants as negro girls and penalize white girls who refuse to work under negro overseers, and negro 83 id. at 125. 84 in this instance, the board concluded that the employer “created an atmosphere calculated to prevent a free and untrammeled choice by the employees.” id. at 126. 85 in my research, i encountered a wide variety of fact patterns, often involving a mix of disputed conduct and speech (e.g., interrogation of employees regarding support of a union, as well as use by employers or workers of racist appeals in a representation campaign). most of these cases raised the issue whether to certify elections results, though some involved the issue of whether certain conduct or speech rose to the level of an unfair labor practice. in reporting data from these diverse contexts, i have combined cases where either election results were not certified or an unfair labor practice was found, and use the term “disallow” to reflect adverse nlrb rulings. 86 happ bros. co., inc., 90 n.l.r.b. 1513 (1950). 87 american thread co., 84 n.l.r.b. 593, 601 (1949) (“you will work side by side with negroes sharing the same rest rooms.”). 230 columbia journal of race and law [vol. 8:2 second hands.”88 a foreman reinforced this prejudice to persuade an employee not to join a union.89 there were times, however, when an employer engaged in race baiting but avoided an adverse board ruling. sharnay hosiery mills, inc. did not overturn an election where the company mailed employees an account of the union’s efforts to promote racial integration.90 unions also stooped to racist appeals. in a contest between two unions to represent workers at a particular company, a devious union hired blacks and whites to hand out leaflets to employees. they hoped to dupe workers into believing that the rival union favored integration.91 the nlrb set aside the election, not on grounds of racial animus, but fraud.92 the board’s mixed record from 1948–1962 in treating racist speech was due to a refinement to its general shoe policy. in the liberal market,93 the nlrb loosened its speech monitoring approach, stating that elections “do not occur in a laboratory where controlled or artificial conditions 88 bibb mfg. co., 82 n.l.r.b. 338, 358 (1949) (newspaper circulated by the company said that a labor group “would force white girls to use the same rest rooms and restaurants as negro girls and penalize white girls who refuse to work under negro overseers, and negro second hands.”). 89 82 n.l.r.b. 338, 358 (1949). the foreman told the employee “he could join the union if he wanted to work with negroes.” id. at 377. the nlrb found that this appeal “was another obvious attempt to raise the race prejudice among white employees in order to discourage membership in the union by creating the economic threat that negro employees would be allowed to hold positions then reserved for white employees.” id. 90 120 n.l.r.b. 750 (1958). the letter correctly reported that the union contributed $75,000 to the naacp and submitted legal briefs to the supreme court to promote racial integration. the nlrb refused to vacate the election because the company’s communication contained no misrepresentation, fraud, or coercion. 91 kelsey-hayes co., 126 n.l.r.b. 151(1960). 92 id. at 153 (where fraud and trickery occur, conditions for a proper election do not exist). 93 108 n.l.r.b. 1481 (1954). no. 1:209] slurred speech 231 may be established.”94 the board added that the actual facts must be assessed “in the light of realistic standards of human conduct.”95 this more permissive approach guided the board in paula shoe co. 96 the nlrb upheld a union election even though the labor organization’s handbill said, “if you want to avoid that the jew sandler continue to mistreat you, vote for utm (sic).”97 the nlrb minimized the significance of this message, reasoning that “mere mention of a racial or religious issue is not grounds for setting aside an election.”98 the board added that union elections are marked by emotional appeals and hyperbole.99 3. sewell (1962) and midland life insurance co. (1982) until 1962, the nlrb did not have an explicit policy for racist speech.100 when racial issues arose over campaign 94 id. at 1482. 95 id. 96 121 n.l.r.b. 673 (1958). 97 id. at 676. 98 id. n.l.r.b. v. silverman’s men’s wear, inc., 656 f.2d 53 (3d cir. 1981), overruled by paula shoe co., 121 n.l.r.b. 673 (1958). 99 schneider mills, inc. v. n.l.r.b., 390 f.2d 375, 379 (4th cir. 1968) (en banc), denying enf’t to schneider mills, inc., 159 n.l.r.b. 982 (1966). the nlrb certified the election results for the union, even though the union’s campaign message compared the company president to hitler. the court, disagreeing with the nlrb, said that this comparison “interjected into the election one of the most sordid episodes of modern history, with all of its overtones of religious persecution.” id. at 379. the court continued, “such propaganda was of a highly inflammatory nature and was manifestly not germane to the issues at stake in the election.” id. at 380. 100 leading up to sewell manufacturing co., 138 n.l.r.b. 66 (1962), the nlrb also set aside some elections due to racial coercion but lacked a structured framework for making these judgments. e.g., associated grocers of port arthur, inc., 134 n.l.r.b. 468, 474 (1961) (overturning election results that favored the employer in part to “intimidating the existing negro complement” of employees with the prospect of white replacements for them if the union won). see also 232 columbia journal of race and law [vol. 8:2 messages, the board used broad criteria for unfair labor practices from 1935-1947 and the “laboratory conditions” doctrine after general shoe. this changed, however, in sewell manufacturing co., a case where the board set aside an election because the employer repeatedly used racial integration as a divisive message.101 the sewell board said that “appeals to racial prejudice on matters unrelated to the election issues or to the union’s activities are not mere ‘prattle’ or puffing. they have no place in board electoral campaigns.”102 sewell has remained in effect since 1962. in a series of conflicting rulings, however, the board has alternated between regulating election speech that is based on misrepresentations and maintaining a hands-off approach. decided the same year as sewell, hollywood ceramics co., said that elections would be set aside if campaign information contained significant misrepresentations.103 this approach did not specifically address racially themed messages, though prejudicial speech is often a misrepresentation. the board reversed course in shopping kart food market, inc., holding that it would no longer set granwood furniture co., 129 n.l.r.b. 1465 (1961). 101 sewell mfg. co., 138 n.l.r.b. 66 (1962). the employer extensively communicated racially charged messages to employees. one example involved newspaper pictures “purportedly showing white labor leaders dancing with negro women and an unidentified negro man dancing with a white woman, above a caption reading ‘the cio strongly pushes and endorses the fepc.’” id. at 66–67. the nlrb found “the challenged propaganda has lowered the standards of campaigning to the point where it may be said that the uninhibited desires of the employees cannot be determined in an election.” id. at 71. in sewell-type cases, the board may order a new election. see zartic, inc., 315 n.l.r.b. 495, 496 (1994). 102 sewell mfg., 138 n.l.r.b. at 71. the sewell court added that racially inflammatory appeals “inject an element which is destructive of the very purpose of an election. they create conditions which make impossible a sober, informed exercise of the franchise.” id. 103 140 n.l.r.b. 221, 224 (1962). no. 1:209] slurred speech 233 aside elections based on misrepresentations,104 but then reverted to the hollywood ceramics standard in general knit of california, inc.105 these alternating policies dealt with campaign messages in general, not racist speech. eventually, the board in midland national life insurance co. (1982) settled on a hands-off policy allowing voters to separate truth and fiction, reality and distortion, puffery and honesty.106 to summarize, since the taft-hartley act the board has conducted representation elections. campaign speech by employers and unions is filled with hyperbole, much like american political elections. for the past thirty-five years, the nlrb has taken a laissez-faire approach to speech in these elections. paradoxically, however, its policy in sewell set a standard for prohibiting appeals to racial prejudice. 104 228 n.l.r.b. 1311, 1313 (1977). 105 239 n.l.r.b. 619, 620 (1978). 106 in midland national life insurance co., 263 n.l.r.b. 127, 133 (1982), the nlrb returned to the shopping kart standard, stating “we will no longer probe into the truth or falsity of the parties’ campaign statements, and . . . will not set elections aside on the basis of misleading campaign statements.” this policy removes “impediments to free speech by permitting parties to speak without fear that inadvertent errors will provide the basis for endless delay or overturned elections.” id. at 132. more generally, the burden to overturn an election has remained high, even where racial animosities are involved, because an “election by its nature is a heated affair.” n.l.r.b. v. halperin distrib. corp., 826 f.2d 287, 290 (4th cir. 1987). the board will overturn an election only if “an atmosphere of fear and coercion rendered free choice impossible.” id. even when that burden is met, the party who communicated a racial message is allowed to prove that its message was truthful and germane. family serv. agency s.f. v. n.l.r.b., 163 f.3d 1369, 1378–79 (d.c. cir. 1999) (union’s use of spanish as a wedge-issue to win over hispanic vote while alienating black employees was relevant to its campaign, even if inflammatory). a judge in another case noted, “only the successful propagandist need concern us” in deciding whether a racially provocative statement is part of an election. n.l.r.b. v. bancroft mfg. co., inc., 520 f.2d 1406, 1407 (5th cir. 1975) (per curiam) (gee, j., concurring). see generally comment, charlotte lemoyne, the unresolved problem of race hate speech in labor union elections, 4 geo. mason u. c.r.l.j. 77 (1993). 234 columbia journal of race and law [vol. 8:2 thus the question to explore is whether—and to what extent—the board has taken action in campaigns where this speech occurs. iii. research methods and findings: racist messages in nlrb elections my research parallels methods used in similar studies on discrimination within labor law.107 the closest comparison is paul frymer’s research.108 in 2005, frymer explored evidence of racism in labor union elections by examining nlrb and federal appeals court cases.109 his study was based on 150 cases from 1935–2000.110 mine is limited to seventy-seven cases from 1938–2015. however, frymer did not report how he selected cases, nor did he list these cases; and he presented statistical findings in text without data tables. i explain my study’s methodology,111 include an appendix of cases,112 present data tables,113 and report 107 michael jordan, the nlrb racial discrimination decisions 1935-64: the empiric process of administration and the inner eye of racism, 24 conn. l. rev. 55 (1991); karl e. klare, the quest for industrial democracy and the struggle against racism: perspectives from labor law and civil rights law, 61 or. l. rev. 157 (1982); lawrence f. doppelt, employer racial discrimination: reviewing the role of the nlrb, 8 j. l. reform 453 (1974); james m. hughes, allocating jurisdiction over racial issues between the eeoc and nlrb: a proposal, 54 cornell. l. rev. 43 (1968); and douglas l. leslie, government action and standing: nlrb certification of discriminatory unions, 1974 ariz. st. l. j. 35 (1974). 108 paul frymer, racism revised: courts, labor law, and the institutional construction of racial animus, 99 am. pol. sci. rev. 373 (2005). 109 id. at 374. 110 id. 111 infra part iii.a. 112 infra part vi. 113 infra part iii.b. no. 1:209] slurred speech 235 specific fact findings.114 frymer and this article reach similar conclusions about the nlrb’s permissive treatment of racist speech in union elections.115 but our inquiries differ in key respects. since 2005, white nationalism has become a major force in american culture and politics. my study captures the raw, internet-mediated expressions of white nationalism in a way that was not possible even a decade ago.116 these social media platforms are a potent outlet for racist communication that could be part of union representation elections. the most immediate distinction is my comparison of nlrb racist speech cases to comparators under title vii,117 and to unjust dismissal laws that employees use to challenge employers who fire them for racist speech.118 my conclusion—that the nlrb’s toleration of racist speech undercuts hostile work environment standards in title vii— supports earlier studies that flagged this concern as long as 40 years ago.119 114 infra part iii.b. 115 frymer, supra note 108, at 384–85. 116 id. at 373–74, assumed that the study of racism through a psychological lens was incomplete and also assumed that racist speech and actions were strategic behaviors. while he examined nlrb and court rulings to examine these assumptions, he did not explore specific illustrations of white supremacist organizations, likely because they were less visible without social media in the early 2000s. by comparison, i present my findings within the broader milieu of white supremacist culture and organizations today. see futrell, supra note 26; working class skins heads, supra note 27, southern poverty law center, supra note 28; peterson, supra note 29; and wotan’s reich, supra note 30. 117 infra part iv. 118 infra part iv. 119 doppelt, supra note 107, at 459 (“[t]he nlrb is wrong, as a matter of law, in requiring that racial discrimination be ‘inherently destructive’ of employee rights under the act in order to be unlawful”); hughes, supra note 107, at 950 (“[a] method of apportionment must be developed under which the board can continue to prohibit union racial practices that substantially undermine the efficacy of the lmra, and at the same time defer to eeoc jurisdiction in matters that are peripheral to 236 columbia journal of race and law [vol. 8:2 a. sample and research methods i created a database of nlrb and federal court rulings involving racist messages during a union representation election. using westlaw’s internet database for nlrb cases, i searched for cases with the key words “racial” (and its extensions, such as “racially” and “racist”), “campaign,” and “representation.” these words were an initial guide. my search led to cases containing campaign slurs of jews,120 japanese,121 hispanics,122 and mormons.123 i found cases with racist speech in union elections. these cases were recorded in a roster. i also explored precedents cited by these decisions. in addition, i keycited the cases for additions to the database. finally, i examined the case history for each nlrb decision to see if a federal appeals court also made a ruling related to speech. the initial research focused on campaign messages from company and union representatives. some nlrb cases also revealed third-party speakers who communicated racist messages during an organizing campaign: co-workers,124 allies to unions and employers,125 and outsiders.126 i added organizational and collective bargaining processes”); and leslie, supra note 107, at 61 (“[w]hen the nlra accords exclusive representation rights to a union that discriminates in membership, it arguably satisfies a condition precedent to the union’s existence . . . [but] the act neither passes upon nor enforces the union’s acts of discrimination in membership”). 120 n.l.r.b. v. katz, 701 f.2d 703 (7th cir. 1983). 121 ki (usa) corp., 309 n.l.r.b. 1063 (1992). 122 family serv. agency s.f. v. n.l.r.b., 163 f.3d 1369, 1378–79 (d.c. cir. 1999). 123 honeyville grain, inc. v. n.l.r.b., 444 f.3d 1269 (10th cir. 2006) 124 e.g., beaird-poulan div., emerson elec. co. v. n.l.r.b., 649 f.2d 589 (8th cir.1981) and n.l.r.b. v. georgetown dress corp., 537 f.2d 1239 (4th cir. 1976) 125 e.g., n.l.r.b. v. katz, 701 f.2d 703 (7th cir. 1983). no. 1:209] slurred speech 237 these cases to the database. fact findings 1–6 are presented in part iii.b, all of which pertain to nlrb rulings. part iii.c presents fact finding 7, relating to appellate court rulings on these nlrb cases. part iii.d provides a textual analysis of these appellate cases. b. data and fact-findings my sample contained fifty-one nlrb cases decided from 1938 to 2015. federal appeals courts ruled in twentyeight of these cases. thus, the database has seventy-nine legal rulings. my data presentation is organized in five charts. following these statistics, this article reports key fact findings. chart 1 classifies speakers who communicated racist messages. chart 2 displays how often the nlrb permitted racist speech; counts how often a union or employer won the ruling; and shows certification outcomes for union elections. charts 3a and 3b break down nlrb rulings by time frames that relate to different nlrb speech policies. in chart 4, i show whether (1) the ruling affirmed an nlrb determination to certify a union or deny certification of the election, and (2) the employer’s speech was an unfair labor practice before the nlra had a certification process. 126 e.g., ashland facility operations, llc, 701 f.3d 983 (4th cir. 2012). in ashland, an employer contended that an outside group made racially inflammatory remarks that undermined an election that resulted in a union victory and certification. the appeals court, applying an agency analysis, affirmed the nlrb’s ruling that the comments by a leader of the naacp was not an agent of the union. id. at 990–91. the court also concluded that the naacp officer’s comments to employees were not racially inflammatory. id. at 992. 238 columbia journal of race and law [vol. 8:2 1. statistical findings for nlrb rulings fact finding 1: in nlrb representation elections, an equal number of company and union speakers communicated racist messages: company representatives used this type of speech in twenty cases, plus two of their allies (total of twenty-two cases). similarly, union representatives used racist speech in seventeen cases, and five of their allies (total of twenty-two cases). since coworkers are viewed by the nlrb and courts as third parties, seven cases involving their speech is not analyzed as a form of company or union speech.127 127 see discussion, infra note 220. 20 2 17 5 7 0 5 10 15 20 25 com pany representative com pany ally u nion representative u nion ally co-w orker chart 1 nlrb representation elections: speaker of racist campaign speech no. 1:209] slurred speech 239 fact finding 2: in two-thirds of representation campaigns involving racist messages, the nlrb allowed this communication (see bars at left, with solid shading).128 the nlrb allowed racist speech in thirty-five cases (68.6%) compared to sixteen contrary rulings (31.4%). fact finding 3: unions won more than threefourths of the cases involving representation campaigns with racist messages (see middle bars with horizontal lines).129 unions won forty-three cases (84.3%) involving racist speech, compared to seven cases (13.7%) where the board disallowed this communication. one case produced a mixed outcome (2.0%, not shown). fact finding 4: unions were certified as bargaining representatives in four of five cases with racist messages (see dotted bars at right).130 unions won thirty cases (58.8%) involving racist speech, compared to 128 refer to black bars, left. 129 refer to bars with horizontal shading, center. 130 refer to dotted bar, right. 35 16 43 7 30 7 0 5 10 15 20 25 30 35 40 45 50 allow speech disallow speech union win company win certify union not certify union chart 2 nlrb rulings on racist campaign speech 240 columbia journal of race and law [vol. 8:2 seven cases with contrary rulings (13.7%). fourteen other rulings (27.5%) involved an unfair labor practice finding or an order of a new election, but they were not a ruling on whether to certify a union. fact finding 5: since 1938, nlrb rulings have dramatically changed from disallowing all racist messages to allowing most of these communications, especially since 1963. from 1938–1948 (pre-general shoe), the nlrb disallowed racially themed speech in all six cases (see black bar near far-left). but this pattern changed during 1949–1962 (general shoe period), when the nlrb only disallowed racist speech in about half of its cases (see bars at middle-left in light gray). paradoxically, after sewell in 1962 and through 1982—a period when the nlrb announced a more rigorous test for racially themed campaign messages—the nlrb rarely disallowed these messages (see bars at middle right with dotted pattern, indicating one cases that disallowed speech and thirteen contrary rulings). after the nlrb returned to a more hands-off policy for evaluating 0 6 6 7 13 1 16 2 0 2 4 6 8 10 12 14 16 18 allow 193848 disallow 1938-48 allow 194962 disallow 1949-62 allow 196382 disallow 1963-82 allow 19832016 disallow 1983-2015 chart 3 nlrb rulings on racist messages by years (bar chart) no. 1:209] slurred speech 241 all forms of campaign speech in 1982 (see bars at far right with horizontal pattern), there was no change in outcomes: in sixteen cases from 1983–2015, the nlrb allowed racist messages and disallowed this speech only twice. 2. statistical findings for federal appellate court rulings my sample includes twenty-seven federal appeals court rulings on the nlrb cases. fact finding 7: federal appeals courts denied enforcement in 9 out of 27 nlrb cases involving racist speech, signaling a difference in how courts and the board treat these campaign messages. the period of greatest disagreement followed sewell (1963–1982), when federal appeals courts reversed five out of eleven nlrb 2 1 1 1 6 5 10 2 0 2 4 6 8 10 12 affirm 1938-48 reverse 1938-48 affirm 1949-62 reverse 1949-62 affirm 1963-82 reverse 1963-82 affirm 1983-2016 reverse 1983-2016 chart 4 appellate court review of nlrb rulings on racist messages by years 242 columbia journal of race and law [vol. 8:2 rulings (45.5%) on racist campaign messages.131 for nlrb rulings from 1938 through 1982,132 federal appeals courts reversed seven out of sixteen (43.75%) nlrb rulings that allowed racially themed campaign messages. these statistics are inconsistent with the deference that courts usually apply to nlrb rulings and orders.133 in the most recent period (1983–2016), however, courts affirmed ten out of twelve (83.3%) nlrb orders involving racist speech.134 one ruling, which partially affirmed an nlrb ruling, was not included in table 4. iv. resurgent white supremacy: employer liability under title vii in part iv, this article demonstrates how the nlrb’s permissive treatment of racist campaign messages undermines title vii’s standards for racial harassment. part iv.a shows how white supremacists are enlarging their communications, including in workplaces. this background is relevant to my study because it indicates that racist speech is more prevalent than my small sample indicates. part iv.b explores cases where employers failed to address racist speech. under title vii and related antidiscrimination laws, employers pay costly judgments or settlements. the main implication of part iv.b is that racist speech harms businesses that ignore or tolerate it. part iv.c examines cases in which employers disciplined employees who communicated racist messages at work—in effect, the 131 refer to dotted bars (right-center). 132 refer to black bars (left), and gray bars (left-center). 133 see james j. brudney, a famous victory: collective bargaining protections and the statutory aging process, 74 n.c. l. rev. 939, 965–66 (1996) (analyzing 1,224 national labor relations board decisions that were appealed to federal courts). appellate courts reversed only 14.7% of the nlrb cases where a union violated the nlra. id. at 976, tbl.3. 134 refer to diagonal bars (right). no. 1:209] slurred speech 243 flip-side of cases in part iv.b. in these cases, employees sued their employers for taking adverse actions on the basis of their workplace speech. important to note, employers usually defended these lawsuits successfully. part iv.d integrates these sub-parts to explain how the nlra and title vii subject employers to conflicting speech policies—the former promoting free speech even if racist, and the latter resulting in monetary damages for permitting racist speech when it adversely affects conditions of employment. a. resurgence of white supremacy white supremacy has crawled out from the shadows into america’s mainstream. this resurgence is anchored in time by a landmark case, brandenburg v. ohio.135 a klu klux klan leader was convicted under a state criminal syndicalism statute for a rally that hinted at violence against the federal government.136 that rally, held on a farm,137 was repeated on a larger scale in 2017 when armed white supremacist groups violently marched through the streets of charlottesville, virginia.138 after that disturbance, a national poll shows that four percent of americans “mostly agree” with white nationalist beliefs.139 135 395 u.s. 444 (1969) (striking down ohio’s criminal syndicalism statute because the law criminalized mere advocacy of violence). 136 id. at 445. the rally featured a message that the federal government was suppressing the white race, and “revengeance” (sic) might be an appropriate response. id. at 446. 137 id. at 445. 138 hawes spencer, a far-right gathering bursts into brawls, n.y. times (aug. 13, 2017), at https://www.nytimes.com/2017/08/13/us/charlottesville-protests-unite-theright.html, and hunton & williams, final report: independent review of the 2017 protest events in charlottesville, virginia (nov. 24, 2017), at http://www.charlottesville.org/home/showdocument?id=59691 [https://perma.cc/s3wl-atul]. 139 a national poll showed that four percent of americans mostly 244 columbia journal of race and law [vol. 8:2 on a cultural scale, white supremacists embrace racist music.140 they mingle on the internet141 and some mask their bigotry in a new style of cultural discourse.142 others link their ideology to christianity.143 a few promote racial separation in terms of ancestral blood,144 and kith and kin.145 others advocate “living space”146 and white culture.147 agree with the beliefs of white nationalists. npr/pbs news hour/marist poll of 1,125 national adults (aug. 17, 2017), at 13, available in http://maristpoll.marist.edu/wpcontent/misc/usapolls/us170814_pbs/npr_pbs%20newshour_marist%20 poll_national%20nature%20of%20the%20sample%20and%20tables_aug ust%2017,%202017.pdf [https://perma.cc/ur2b-k47d]. 140 see futrell, supra note 26 (analyzing how the aryan music scene fosters purpose and belonging to people who practice racial exclusion). 141 see working class skin heads, post from june 6, 2016 (last viewed on jan. 12, 2018), https://www.facebook.com/wcshsodacity/?hc_ref=pages_timeline&f ref=nf [https://perma.cc/87ns-dtcu] (“this community is based on those who earn their living. those of us who scrape by to take hone our slice of the dream. we are not slaves, we are not robots we are hard-working people who know that something earned is something to be proud of.”). 142 see mitch berbier, “half the battle”: cultural resonance, framing processes, and ethnic affectations in contemporary white separatist rhetoric transforming the stigma of white supremacy: the ethnic affectations of love, pride, and heritage-preservation, 45 social problems 431, 443–40 (1998) (discussing the new rhetoric of white separatists). courts have been presented with expert testimony on coded communication used by white supremacists. e.g., state v. tankovich, 307 p.3d 1247 (idaho 2012) (expert testimony established that the defendant’s three-leaf clover tattoo was a common symbol worn by aryan white supremacists). 143 peterson v. wilmur commc’ns, inc., 205 f. supp. 2d 1014 (e.d. wis. 2002). 144 wotan’s reich, supra note 30. 145 southern poverty law center, matthew heimbach, supra note 30. 146 national alliance, what is the national alliance, white living space, supra note 31. 147 e.g., white nationalist leader jared taylor’s 2016 election “robocall” asking voters to support donald trump because he would no. 1:209] slurred speech 245 while a portion of the white supremacy movement is not visible to the public, other elements seek legitimacy through civic activities. they assert rights to display their racially-themed crosses at a state capitol,148 and participate in state adopt-a-highway litter programs.149 b. employer liability for racial harassment: high risk in this section, this article explores white supremacy in the workplace. this article presents a lengthy catalogue of cases to prove that racist speech is not isolated or infrequent. this detailed and extensive documentation dispels any notion that the small number of nlrb cases in my database reflects the real frequency of racist speech in the workplace. by way of background, title vii prohibits several forms of employment discrimination. most pertinent to this study, the law applies to race discrimination.150 title vii promote immigration of “smart, well-educated white people” who can assimilate to white america. peter holley, hear a white nationalist’s robocall urging iowa voters to back trump, wash. post (jan. 12, 2016). 148 advisory bd. v. pinette, 515 u.s. 753 (1995) (first amendment establishment clause does not bar ku klux klan from erecting its cross in holiday display at state capitol, where the kkk’s application for a permit said its cross is a religious symbol). cf., sons of confederate veterans, va. div. v. city of lexington, va., 722 f.3d 224 (4th cir. 2013) (city regulation limiting display on public light poles to u.s., state and city flags is not unconstitutional). 149 robb v. hungerbeeler, 370 f.3d 735 (8th cir. 2004) (missouri’s denial of klan group’s petition to participate in adopt-a-highway program violates first amendment); knights of ku klux klan v. ark. state highway & transp. dep’t, 807 f. supp. 1427 (w.d. ark. 1992) (klan group had constitutional right to participate in state’s adopt-a-highway program); and state v. int’l keystone knights of the ku klux klan, inc., 788 s.e.2d 455 (ga. 2016) (state highway department improperly denied klan group’s permit to participate in adopt-a-highway program). 150 the legal doctrine of racial harassment in the employment context originates in rogers v. eeoc, 316 f. supp. 422 (e.d. tex. 1970), 246 columbia journal of race and law [vol. 8:2 applies to harassment when it is so pervasive or severe that an employee’s conditions of employment are adversely affected.151 administering the law, the equal employment opportunity commission (eeoc) advises employers to provide a workplace that is free of racial harassment.152 many state discrimination laws supplement title vii.153 isolated harassment, when it becomes extreme, is sufficient to expose employers to liability.154 some rev’d, 454 f2d 234 (5th cir. 1971). 151 courts use a totality-of-circumstances test to judge whether racial harassment is sufficiently severe and pervasive to constitute discrimination. e.g., henry v. corpcar servs. houston, ltd., 625 f. app’x 607, 611–12 (5th cir. 2015) (applying harris v. forklift sys., inc., (discussed infra note 228), to a racial harassment complaint (title vii is not a “general civility code,” but applies when extreme conduct is “sufficiently severe or pervasive”)). 152 eeoc compliance manual, “race and color discrimination” (apr. 19, 2006), at 35, available at https://www.eeoc.gov/policy/docs/racecolor.pdf [https://perma.cc/cuq5-65ze]. discrimination includes employer toleration of “offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or putdowns, offensive objects or pictures, and interference with work performance.” 153 cowher v. carson & roberts, 40 a.3d 1171, 1175 (n.j. 2012) (“jew bag,” “fuck [ ] you hebrew,” “jew bastard,” “where are [you] going, jew,” “i have friends in high places, not in fucking temple,” “jew shuffle,” “if you were a german, we would burn you in the oven,” “we have jews and niggers that work here” are actionable discrimination); and nazir v. united airlines, inc., 100 cal. rptr. 3d 296 (cal. 2009) (terminated employee of kuwaiti and pakistani descent may proceed to trial under state discrimination law after being called “sand nigger,” “sand flea,” “rag head,” and “camel jockey”). 154 ayissi–etoh v. fannie mae, 712 f.3d 572, 580 (d.c. cir. 2013) (“being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment”); rivera v. rochester genesee reg’l transp. auth., 743 f.3d 11, 24 (2d cir. 2012) (“no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates”); mcginest v. gte serv. corp., 360 f.3d 1103, 1116 (9th cir. 2004) (“it is beyond question that the use of the word “nigger” is highly offensive and https://www.eeoc.gov/policy/docs/race-color.pdf https://www.eeoc.gov/policy/docs/race-color.pdf no. 1:209] slurred speech 247 illustrations make this concept clearer. graffiti, written below the name of an african-american employee and demeaning, evoking a history of racial violence, brutality, and subordination”); swinton v. potomac corp., 270 f.3d 794, 817 (9th cir. 2001) (the word “nigger” is “perhaps the most offensive and inflammatory racial slur in english, ... a word expressive of racial hatred and bigotry”); spriggs v. diamond auto glass, 242 f.3d 179, 185 (4th cir. 2001) (far more than a “mere offensive utterance,” the word ‘nigger’ is pure anathema to african-americans”); rodgers v. western-southern life ins. co., 312 f.3d 668, 675 (7th cir. 1993) (“perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates”); daso v. the grafton school, inc., 181 f. supp. 2d 485, 493 (d. md. 2002) (“the word ‘nigger’ is more than [a] ‘mere offensive utterance’ . . . no word in the english language is as odious or loaded with as terrible a history.”); bailey v. binyon, 583 f. supp. 923, 927 (n.d. ill. 1984) (“the use of the word ‘nigger’ automatically separates the person addressed from every nonblack person; this is discrimination per se.”); and city of minneapolis v. richardson, 239 n.w.2d 197, 203 (minn. 1976) (“we cannot regard use of the term ‘nigger’ . . . as anything but discrimination . . . based on . . . race . . . . when a racial epithet is used to refer to a [black] person . . . an adverse distinction is implied between that person and other persons not of his race. the use of the term ‘nigger’ has no place in the civil treatment of a citizen . . . .”). other cases require, or suggest, that slurs be repetitious to support actionable claims of discrimination. see amirmokri v. balt. gas & elec. co., 60 f.3d 1126, 1131 (4th cir. 1995) (finding a prima facie case of national origin harassment because of repeated ethnic slurs uttered toward an arab-american employee); bolden v. prc inc., 43 f.3d 545, 551 (10th cir. 1994) (two racial slurs insufficiently severe because there was no barrage of opprobrious racial comments); boutros v. canton reg’l transit auth., 997 f.2d 198, 204 (6th cir. 1993) (same); davis v. monsanto chem. co., 858 f.2d 345, 349 (6th cir. 1988) (repeated slurs are necessary to establish a racial harassment claim); erebia v. chrysler plastic prod. corp., 772 f.2d 1250, 1256 (6th cir. 1985) (repeated racial slurs created a hostile work environment); mccray v. dpc indus., inc., 942 f. supp. 288, 293 (e.d. tex. 1996) (sporadic racial slurs by co-workers fails to establish a hostile work environment); bivins v. jeffers vet supply, 873 f. supp. 1500, 1508 (m.d. ala. 1994) (one-time calling a co-worker a “nigger” fails to establish hostile work environment); bennett v. n.y.c. dep’t of corr., 705 f. supp. 979, 983 (s.d.n.y. 1989) (remark, “hey black bitch, open the . . . gate,” does not establish a hostile work environment). 248 columbia journal of race and law [vol. 8:2 stating “kill all niggers,” was sufficiently severe to survive an employer’s motion to dismiss a lawsuit.155 in a different case, a trial court ruled similarly, reasoning that “the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence.”156 another employer lost its motion to dismiss when a black employee’s name was written in a workplace shower by an arrow connecting him to a burning cross and a kkk sign.157 these cases signify that some courts categorically view nooses, references to the kkk, and incitements to kill blacks as speech that alters conditions of employment. while a single incident can create actionable harassment, most cases require a pattern of speech or expressive conduct. these types of title vii cases involve displays of nooses,158 graffiti,159 clothing,160 tattoos,161 and 155 see reedy v. quebecor printing eagle, inc., 333 f.3d 906, 909 (8th cir. 2003) (racially hateful bathroom graffiti that amounted to a death threat satisfied the severity element for proof). 156 williams v. n.y.c. hous. auth., 154 f. supp. 2d 820, 824–25 (s.d.n.y. 2001). 157 jackson v. flint ink n. am. corp., 382 f. 3d 869 (8th cir. 2004). 158 turley v. isg lackawanna, inc., 774 f.3d 140 (2d cir. 2014) (upholding compensatory damages of $1.32 million for racially abusive environment that included noose and derogatory racial terms); vance v. s. bell tel. & tel. co., 863 f.2d 1503 (11th cir. 1989) (noose displayed near the work station of a black employee); smith v. town of hempstead dep’t of sanitation sanitary dist. no. 2, 798 f. supp. 2d 443 (e.d.n.y. 2011) (employees alleged display of a noose); wilson v. n.y.c. dep’t of transp., no. 01-civ-7398(rjh), 2005 wl 2385866 (s.d.n.y. 2005) (workplace permeated with offensive nicknames and noose); and williams v. n.y.c. hous. auth., 154 f. supp. 2d 820 (s.d.n.y. 2001). 159 tademy v. union pac. corp., 520 f.3d 1149 (10th cir. 2008) (black employee’s workplace had a noose, racist graffiti, and racial intimidation); hunter v. allis-chalmers corp., 797 f.2d 1417 (7th cir. 1986); and eeoc v. rock-tenn servs. co., 901 f. supp. 2d 810 (n.d. tex. 2012) (racist graffiti and noose on employer’s premises). 160 e.g., swartzentruber v. gunite corp., 99 f. supp. 2d 976 (n.d. ind. 2000) (denying religious discrimination complaint of a member of the church of american knights of the ku klux klan who was ordered to no. 1:209] slurred speech 249 flags;162 racist materials;163 recruitment to white supremacy groups;164 racist slurs, epithets, and jokes;165 intimidation of cover his forearm tattoo of a hooded figure standing in front of a burning cross). 161 lawrenz v. james, 852 f. supp. 986 (m.d. fla. 1994) (corrections officer terminated for wearing a t-shirt with a swastika and the words “white power”). 162 dixon v. coburg dairy, inc., 369 f.3d 811 (4th cir. 2004) (employer did not violate speech rights of employee who refused to remove a confederate flag from his toolbox after complaint from a black employee); webber v. first student, inc., 928 f. supp. 2d 1244 (d. ore. 2013) (no violation of bus driver’s first amendment rights who was terminated for refusing to a confederate flag from his pickup truck which was parked on the school district’s property); carpenter v. city of tampa, no. 8:03-cv-451t-17-eaj, 2005 wl 1463206 (m.d. fla. 2005) (public employee displayed confederate flag on his car); vanderhoff v. john deere consumer prods., inc., 21 ier cases 862, 2003 wl 23691107 (d.s.c. 2003) (no wrongful discharge of employee who displayed a confederate flag decal on his toolbox because it is not a political opinion under state law); in re n.y.s. law enf’t officers union, council 82, afscme, aflcio (state), 694 n.y.s.2d 170 (n.y. app. 3d 1999) (corrections officer who flew nazi flag at his home violated work rule). 163 pappas v. giuliani, 290 f.3d 143 (2d cir. 2002) (police officer circulated anti-black and anti-semitic materials); savina v. gebhart, 497 f. supp. 65 (d. md. 1980) (school security monitor distributed ku klux klan information, and broadcasted racially derogatory remarks over a school’s public address system); and essex cty. sheriff’s dep’t. v. essex cty. corr. officers ass’n, 27 mass. l. rptr. 487 (mass. sup. ct. 2010) (corrections employees condoned and encouraged racially harassing posts to union’s website). 164 see lake v. ak steel corp., no. 2:03-cv-517, 2006 wl 1158610 (w.d. penn. 2006) (workplace was pervaded with racial slurs, epithets and graffiti, including swastikas, ku klux klan video, and display of a noose). 165 appellate cases include green v. franklin nat’l bank of minneapolis, 459 f.3d 903, 911 (8th cir. 2006) (black employees called “baboon[s],” “porch monkeys,” “spear-chuckers,” “ghetto assholes,” “nigger,” “super nigger”); webb v. worldwide flight serv., 407 f.3d 1192, 1193 (11th cir. 2005) (black employee called “nigger” constantly by manager); white v. bfi waste servs. llc, 375 f.3d 288, 298 (4th cir. 2004) (employee subjected to racially-oriented degradation); hrobowski v. worthington steel co., 358 f.3d 473, 477, n.2 (7th cir. 2004) (“the word ‘nigger’ was used frequently”); spriggs v. diamond auto glass, 242 f.3d 179, 182 (4th cir. 2001) (plaintiff was called “dumb monkey”); hollins v. 250 columbia journal of race and law [vol. 8:2 delta airlines, 238 f.3d 1255 (10th cir. 2001) (several hangman’s nooses coupled with racist jokes); walker v. thompson, 214 f.3d 615, 626 (5th cir. 2000) (supervisors compared african american employees to “monkeys,” “slaves”, and “nigger”); jackson v. quanex corp., 191 f.3d 647, 661 (6th cir. 1999) (workplace filled with racial epithets and racially offensive graffiti); allen v. mich. dep’t of corr., 165 f.3d 405 (6th cir. 1999) (workplace included racial epithets, slurs, and intimidating symbols, including nooses); jeffries v. metro-mark, inc., 45 f.3d 258, 260 (8th cir. 1995) (plaintiff was called a “monkey”); rodgers v. western-southern life ins. co., 12 f.3d 668, 673-75 (7th cir. 1993) (female employee called a “nigger”); brown v. miss. elec. power ass’n, 989 f.2d 858, 861 (5th cir. 1993) (“unlike certain age-related comments which we have found too vague to constitute evidence of discrimination, the term ‘nigger’ is a universally recognized opprobrium, stigmatizing african–americans because of their race”); daniels v. pipefitters’ ass’n local union no. 597, 945 f.2d 906, 910 (7th cir. 1991) (plaintiffs were called “porch monkeys” and “baboons”); brewer v. muscle shoals bd. of educ., 790 f.2d 1515 (11th cir. 1986) (school superintendent’s comment that he did not want to appoint plaintiff to an administrative position because he did not want to see the school system “nigger-rigged” is direct evidence of discriminatory animus, even though the comment was made after the alleged violation); taylor v. jones, 653 f.2d 1193 (8th cir. 1981) (black employee constructively discharged where he was subjected to terms such as “niggers” and “spooks”). cases in federal district court include dapkus v. chipotle mexican grill, inc., 2017 fair empl. prac. cas. (bna) 1009, 2017 wl 36448 (n.d. ill. 2017) (words such as “nigger,” “nigga,” and “gorilla” frequently used); mccaslin v. comcast cable commc’ns mgmt., llc, 127 fair empl. prac. cas. (bna) 242, 2015 wl 2365955 (w.d. mich. 2015); vital v. nat’l oilwell varco, civ. a. no. h-12-1357, 2014 wl 4983485 (s.d. tex. 2014) (employees called words “nigger,” “gorilla,” and “coonass” on daily basis); burton v. heckmann water res., civ no. 4:13-cv-880, 2015 wl 1427971 (m.d. pa. 2015) (employee repeatedly exposed to terms such as “nigger,” “niggahjew,” and other racially derogatory terms); davis v. lakeside motor co., inc., 117 fair empl. prac. cas. (bna) 1539, 2013 wl 149594 (n.d. ind. 2013) (employee repeatedly called a “nigger”); market v. ill. bell tel. co., no. 01 c 3841, 2003 wl 22697284 (n.d. ill. 2013); fulmore v. m&m transp. servs., inc., no. 1:11-cv-0389-twp-tab, 2012 wl 5331229 (s.d. ind. 2012) (employee called “nigger,” “black motherfucker,” and subjected racially offensive jokes and comments); wallace v. platt’s heating & air conditioning co., inc., c/a no. 2:08–3679–mbs, 2010 wl 427738 (d.s.c. 2010); walker v. sbc servs., inc., 375 f. supp. 2d 524 (n.d. tex. 2005) (warehouse workers were called “monkeys”); colbert v. infiniti broad. no. 1:209] slurred speech 251 co-workers on the basis of race;166 and employer condonation of bigotry.167 apart from title vii, employees also sue under state discrimination statutes168 or torts, such as intentional corp., 423 f. supp. 2d 575 (n.d. tex. 2005) (manager called used term “monkey” in derogatory manner); sykes v. franciscan skemp healthcare, no. 99-c-734-c, 2000 wl 34235984 (w.d. wis. 2000) (black employee had writings such as “nigger” and “nigger go home” in work area); tillmon v. garnett corp., 80 fair empl. prac. cas. (bna) 1470, 1999 wl 592119 (n.d. ill. 1999) (black employee subjected to recurring racist name-calling, noose from co-workers, and swastika etched on his tool box); briggs v. hannag’s rest., inc., no. 95 c 4315, 1997 wl 269597 (n.d. ill. 1997) (numerous references to “niggers” as pimps, drug pushers, and prostitutes); lafleur v. wallace state cmty. coll., 955 f. supp. 1406, 1416 (m.d. ala. 1996) (employee warned to leave down because “in cullman after dark because there used to be a sign at the city limits that read, ‘nigger, don’t let the sun set on your ass’”). state cases include cutler v. dorn, 955 a.2d 917 (n.j. app. 2008) (jewish police officer was subjected to supervisor comments about “dirty jews” and other anti-semitic communications); and alcorn v. anbro eng’g, inc., 468 p.2d 216, 219, n.4 (cal. 1970) (“‘nigger’ may once have been in common usage” but now is “particularly abusive and insulting”). 166 williams v. conagra poultry, inc., 378 f.3d 790 (8th cir. 2004) ($1.2 million awarded to employee whose workplace had nooses, a black doll hung by a noose, and invitations for black employees to attend ku klux klan hunting parties where they would be the prey). 167 essex cty. sheriff’s dep’t, 27 mass. l. rptr. 487; goldsmith v. bagby elevator co., inc., 513 f.3d 1261 (11th cir. 2008) (employer toleration of recurring racial hostility results in $500,000 punitive damages award); and lake v. ak steel corp., no. 2:03-cv-517, 2006 wl 1158610 (w.d. penn. 2006). condonation can be proved by if co-workers use racial slurs, an employee complains, and the employer ignores the situation. e.g., snell v. suffolk cty., 782 f.2d 1094, 1103–04 (2d cir. 1986); erebia v. chrysler plastic prods. corp., 772 f.2d 1250, 1258 (6th cir. 1985); and walker v. ford motor co., 684 f.2d 1355, 1358 (11th cir. 1982). 168 philip v. gtech corp., 2016 fair empl. prac. cas. (bna) 233,007, 2016 wl 3959729 (s.d.n.y. 2016) (employee subjected to racial slurs may proceed to trial under state discrimination law, where theories of liability are broader than in title vii); and marigny v. mercury air ctr., inc., 2002 wl 34235964 (cal. super. 2002) (trial order), aff’d in part, rev’d in part, 2003 wl 21978622 (cal. app. 2d dist. 2003) (co-workers and managers used the word “nigger” regularly). 252 columbia journal of race and law [vol. 8:2 infliction of emotional distress.169 employers who fail to address racial harassment face costly judgments and settlements. there is no central repository for this information. to address this informational gap, i researched five separate sources to find evidence of the high costs of racist speech. two sources were federal170 and state171 court decisions that published 169 adams v. vertex, inc., civ. a. no. 04-01026 (hhk), 2007 wl 1020788 (d.d.c. 2007) (racial slurs can constitute emotional distress); williams v. asplundh tree expert co., no. 3:05-cv-479-j-33mcr, 2006 wl 2131299 (m.d. fla. 2006) (jury entitled to decide emotional distress claim where employee was subjected to repeated racial slurs and threatened with a rope); taylor v. metzger, 706 a.2d 685, 691 (n.j. 1998) (‘“jungle bunny” is patently a racist slur, and is ugly, stark and raw in its opprobrious connotation”); robinson v. hewlett-packard corp., 183 cal. app. 3d 1108, 1129–30 (cal. ct. app. 1986) (supervisor insulting an employee with racial slurs is outrageous is a triable jury issue); chauffeurs, teamsters & helpers, local union no. 238 v. iowa civil rights comm’n, 394 n.w.2d 375 (iowa 1986) (award of damages for use of racially derogatory terms); contreras v. crown zellerbach corp., 565 p.2d 1173, 1177 (wash. 1977) (en banc) (rejecting motion to dismiss because racial insults at the workplace could constitute outrageous conduct). but see briggs v. n. shore sanitary dist., 914 f. supp. 245, 252 (n.d. ill. 1996) (racial slurs and doll insufficient for recovery of emotional distress claim); mccray v. dpc indus., inc., 875 f. supp. 384, 391 (e.d. tex. 1995) (racial slurs and jokes by co-employees are not outrageous conduct); herlihy v. metro. museum of art, 633 n.y.s.2d 106, 114 (app. div. 1995) (ethnic slurs are not sufficiently outrageous or extreme to support emotional distress claim). 170 turley v. isg lackawanna, inc., 774 f.3d 140 (2d cir. 2014) (upholding compensatory damages of $1.32 million for racially abusive environment that included noose and derogatory racial terms); goldsmith v. bagby elevator co., inc., 513 f.3d 1261 (11th cir. 2008) (employer toleration of recurring racial hostility results in $500,000 punitive damages award); and williams v. conagra poultry, inc., 378 f.3d 790 (8th cir. 2004) ($1.2 million awarded to employee whose workplace had nooses, a black doll hung by a noose, and invitations for black employees to attend ku klux klan hunting parties where they would be the prey); macmillan v. millennium broadway hotel, 873 f. supp. 2d 546 (s.d.n.y. 2012) (reducing $1.25 million award to $130,000 for voodoo doll and repeated references to “nigger”); and carter v. chi. transit auth., no. 99 c 7738, 2001 wl 1035712 (n.d. il. 2001) (award of $300,000 for title vii no. 1:209] slurred speech 253 damages figures. two additional sources were media reports of large jury awards,172 and monetary settlements in discrimination lawsuits.173 eeoc press releases added a fifth source to document the cost of racist speech to employers. the agency pursues claims under title vii for violations involving repeated use of racial slurs reduced to no more than $100,000). 171 lin v. dane const. co., 126 fair empl. prac. cas. (bna) 974, 2014 wl 8131876 (n.j. app. ct. 2015) (affirming award of $25,000 in pain and humiliation damages to employee who was subjected to repeated racial slurs); smith v. superior prod. llc, 13 n.e.3d 664 (ohio app. 2014) (involving jury award of $549,307.77 for employee who was subjected to recurring racial slurs); and boone v. city of lavergne, 111 fair empl. prac. cas. (bna) 1072, 2011 wl 553757 (tenn. ct. app. 2011) (affirming jury awards of $350,000 and $300,000 to two employees who were subjected to racial harassment). 172 large verdicts that are reported in news outlets include $16.6 million verdict against corona company in racial discrimination lawsuit, the press-enterprise (june 29, 2017) (employee was called the “n” word and other racially offensive names); kirk mitchell, denver jury awards nearly $15 million in racial discrimination case, the denver post (feb. 11, 2015) (white employees and supervisors of matheson trucking and matheson flight extenders inc. often used the n-word when referring to black workers); greg kocher, 8 men awarded $5.3 million from ups; effigy hung from ceiling, lexington herald-leader (apr. 14, 2016); pennsylvania state trooper wins nearly $2m in racial discrimination lawsuit, nbc10 (nov. 12, 2014); bethany barnes, portland public schools, after expressing ‘respect’ for $1 million verdict, appeals it, the oregonian (aug. 22, 2017) (two employees were relentlessly subjected to the n-word and noose in the workplace). 173 laura bult, sara lee agrees to pay $4m to black employees who say they were called racial slurs, daily news (dec. 22, 2015); chris dimarco, top 10 most expensive discrimination settlements of 2013, insidecounsel magazine (july 8, 2014) (bradley v. city of richmond settled for $1 million in a case brought by eight african-american pipefitters who alleged that they were subjected to racial epithets and other forms of bias); george rede, 6 takeaways from daimler’s settlement of discrimination, harassment claims in oregon, the oregonian (feb. 5, 2015); and tim gould, noose, ‘n-word’ lead to $3.6m race discrimination settlement, hr morning (aug. 3, 2016) (new jersey transit settled discrimination lawsuit with seven employees who were subjected to the nword; and a noose was hung over one employee’s neck). 254 columbia journal of race and law [vol. 8:2 workplace speech that constitutes racial harassment. table 7 is the product of eeoc press releases for racial harassment cases from 2009–2017. the table begins with the most costly cases for employers. chart 5 eeoc settlements & court judgments, 2009-2017 (ranked by expense to employers) $14,500,000 settlement (patterson-uti drilling, 4/20/2015): minority employees subjected to racial & ethnic slurs & jokes, & fired for complaining $11,000,000 decree (yrc/yellow transportation, 6/29/2012): black employees subjected to nooses, racist graffiti and epithets, harsher discipline, & tougher work assignments $8,900,000 settlement (albertsons, 12/15/2009): employees subjected to swastikas, lynching drawings, epithets, white supremacist, and anti-immigrant comments $4,000,000 settlement (hillshire bros. co., 12/22/2015) blacks subjected to racist comments/graffiti $2,750,000 settlement (wrs compass, 8/27/2012) black workers harassed with nooses & slurs, plus harassment of white workers who associated with blacks $2,000,000 consent decree (blockbuster inc., 12/14/2011) hostile environment for female and hispanic workers, including racial remarks $1,200,000 settlement (well servicing companies, 12/2/2004): minorities verbally abused and punished $1,073,261 damages (whirlpool, 4/1/2011) verbal/physical attack due to race and gender $1,000,000 settlement (elmer w. davis, inc., 8/10/2010) black employees called “n----r,” “lazy n-----rs,” “sambo,” “slave,” “monkey”; exposed to nooses & swastikas $650,000 settlement (race, llc/studsvik, 12/31/2009) targeting black workers for higher radiation exposure, and subjecting them to racial slurs no. 1:209] slurred speech 255 $630,000 settlement (scully distribution, 8/27/2012) drivers subjected to racial slurs $600,000 settlement (mercury air centers, 8/9/2010) filipino and hispanics barraged with slurs $500,000 settlement (rocktenn services, 12/3/2012) employees subjected to racist graffiti, noose, and employer ignoring of complaints $400,000 settlement (big lots, 2/16/2010) black employees subjected to racial jokes $250,000 settlement (swissport fueling, 12/2/2014) employees repeatedly called “monkeys” $243,000 judgment (a.c. widenhouse, 3/8/2013) blacks face racial slurs and nooses, retaliation $228,000 settlement (titan waste services, 3/14/2014) black employee subjected to “n-word,” discharged $180,000 settlement (emmert int’l, 1/7/2013) employee subjected to regular use of “n-word,” racial jokes and retaliation for complaining $150,000 settlement (torqued-up energy, 5/28/2013) employee fired for reporting racial slurs $122,500 settlement (pace services, l.p., 4/22/2010) muslim, black and hispanic employees repeatedly called “terrorist,” “taliban,” “osama,” “al-qaeda,” “n----s,” & “f----g mexicans” $120,000 settlement (downhole technology, 4/26/2017) black employee fired for complaining that co-worker wore kkk hood $118,000 settlement (professional building systems of n.c., 4/8/2010) black employees subjected to “n-word,” nooses, and racially offensive pictures $150,000 settlement (affordable care, inc., 6/2/2010) harasser said he had kkk relative $100,000 settlement (mcgriff industries, inc., 7/1/2010) black and white employees routinely subjected to racially derogatory comments, slurs, and insults directed at or about african-americans $87,205 settlement (mike enyart & sons, 10/6/2010) black 256 columbia journal of race and law [vol. 8:2 employee fired after complaining about racial epithets and swastika $80,000 settlement (mel-k mgt. co., 8/28/2015) blacks subjected to “n----r”, “ho” & “black b----h” $50,000 settlement (onsite solutions, llc, 11/2/2016 manager used code language (“sprinkle a little salt”) to fire blacks and replace with whites when these sources are viewed in totality they provide a gauge to estimate the cost of racist speech at work. repeated displays of nooses, combined with racial slurs, can cost employers millions of dollars. in addition, plaintiff lawyers can choose between different venues and legal theories to redress this form of discrimination. these five sources probably understate employer expenses related to racial harassment because many settlements are never published in court records, news accounts, or eeoc press releases. even the published information in part iv.b fails to disclose employer litigation costs in defending these actions, including the possibility of paying plaintiffs’ costs and attorneys’ fees. c. employer liability for disciplining employees for racial harassment: low risk when the eeoc and courts first fashioned a doctrine for racial harassment, they agreed that title vii is violated when a working environment is “dominated by racial slurs.”174 more recently, the eeoc has expanded these 174 the origin of the racial harassment doctrine is set forth in eeoc v. murphy motor freight lines, inc., 488 f. supp. 381 (d. minn. 1980), stating that racial harassment had been recognized for some time (citing eeoc dec. 72-0779, 4 fep cases 317 (1971); eeoc dec. 72-1561, 4 fep cases 852 (1972)). in its earliest formulation, the racial harassment doctrine made an employer responsible for maintaining a “‘working environment free of racial intimidation,’” and required “‘positive action no. 1:209] slurred speech 257 grounds for racial harassment.175 this policy change likely explains why employers have addressed racial harassment more aggressively by disciplining offenders.176 some terminated employees have offered the where positive action is necessary to redress or eliminate employee intimidation.’” id. at 384 (citations omitted). numerous courts consider whether there is a “steady barrage of opprobrious racial” comment or comments to determine if there is race discrimination. e.g., schwapp v. town of avon, 118 f.3d 106, 110 (2d cir. 1997); bolden v. prc inc., 43 f.3d 545, 551 (10th cir. 1994); ways v. city of lincoln, 871 f.2d 750, 754 (8th cir. 1989); hicks v. gates rubber co., 833 f.2d 1406 (10th cir. 1987); and johnson v. bunny bread co., 646 f.2d 1250, 1257 (8th cir. 1981). at the state level, see valcarcel v. first quality maint., 2013 wl 5832545, at *9 (n.y. sup. ct. 2013). 175 see eeoc compliance manual, stating: racial harassment is unwelcome conduct that unreasonably interferes with an individual's work performance or creates an intimidating, hostile, or offensive work environment. examples of harassing conduct include: offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. an employer may be held liable for the harassing conduct of supervisors, coworkers, or non-employees (such as customers or business associates) over whom the employer has control. and see equal employment opportunity commission, eeoc compliance manual (apr. 19, 2006), available at https://www.eeoc.gov/policy/docs/racecolor.pdf. the eeoc also expands on this statement of policy by giving examples in a question-and-answer format. see equal employment opportunity commission, questions and answers about race and color discrimination in employment, available at https://www.eeoc.gov/policy/docs/qanda_race_color.html [https://perma.cc/4a7q-m492] under the heading “harassment.” 176 harberson v. monsanto textiles co., 17 fair empl. prac. cas. (bna) 99, 1976 wl 720 (d.s.c. 1976) (termination due to membership in the kkk, and expressing racist statements at work, do not violate title vii). cf., contreras, 565 p.2d 1173 (employer took no corrective action when mexican-american employee was subjected to racial jokes, slurs, and comments). 258 columbia journal of race and law [vol. 8:2 anachronistic defense that “southerness,”177 “confederate southern-american,”178 and “confederate american”179 are forms of national origin, protected from discrimination under title vii. others have contended, usually without success, that white supremacy is a religion.180 public employees have also asserted constitutional speech or assembly rights, mostly without success.181 177 williams v. frank, 757 f. supp. 112, 120 (d. mass. 1991) (“southerness” not a protected characteristic). 178 storey v. burns int’l sec. servs., 390 f.3d 760 (3d cir. 2004) (denying claims of national origin and religious discrimination after employee was fired for refusing to obey directive not to display confederate flag at work). 179 terrill v. chao, 31 f. app’x 99, 100 (4th cir. 2002) (holding that “confederate american” is not a protected class, and therefore no discrimination in denying request to display materials at a diversity day event). 180 see storey, 390 f.3d 760 (denying complaint of employee who claimed religious discrimination after he was terminated for failing to remove confederate flag stickers on his lunch box); chaplin v. du pont advance fiber sys., 293 f. supp. 2d 622 (e.d. va. 2003) (no adverse action in the form of religious discrimination when company barred confederate imagery in workplace); swartzentruber v. gunite corp., 99 f. supp. 2d 976 (n.d. ind. 2000); slater v. king soopers, inc., 809 f. supp. 809 (d. colo. 1992); bellamy v. mason’s stores, inc., 368 f. supp. 1025 (e.d. va. 1973); and augustine v. anti-defamation league of b’nai-b’rith, 249 n.w.2d 547 (wis. 1977). see also eeoc dec. no. 79-6, 1978 wl 5828, at *3 (oct. 6, 1978), concluding: “viewing the klan’s history, its goals and purposes, it is apparent that the klan’s beliefs are more political, social or economic than theistic and they do not involve a relation to a superior being involving duties superior to those arising from any human relation.” cf., peterson v. wilmur commc’ns, inc., 205 f. supp. 2d 1014 (e.d. wis. 2002). the court ruled that peterson’s demotion violated title vii’s prohibition against religious discrimination, noting that peterson never acted in a racially motivated manner while he was employed as a supervisor. 181 pappas v. giuliani, 290 f.3d 143 (2d cir. 2002); allen v. mich. dep’t of corr., 165 f.3d 405 (6th cir. 1999); weicherding v. riegel, 160 f.3d 1139 (7th cir. 1998) (prison sergeant terminated for engaging in white supremacist activities and involvement with the ku klux klan); mcmullen v. carson, 754 f.2d 936 (11th cir. 1985) (sheriff department employee also served as organizer for a ku klux klan event); smith v. no. 1:209] slurred speech 259 private sector cases are less common because these jobs lack the same constitutional protections. nonetheless, courts have generally upheld an employer’s right to discharge an employee for racist speech.182 paradoxically, some white supremacists have alleged a violation of civil rights laws. in lawsuits to challenge these firings, courts have ruled against klan members.183 town of hempstead dep’t of sanitation sanitary dist. no. 2, 798 f. supp. 2d 443 (e.d.n.y. 2011) (sanitation department employees alleged that noose was displayed); wilson v. n.y.c. dep’t of transp., no. 01-civ7398(rjh), 2005 wl 2385866 (s.d.n.y. 2005); carpenter v. city of tampa, no. 8:03-cv-451t-17-eaj, 2005 wl 1463206 (m.d. fla. 2005); williams v. n.y.c. housing auth., 154 f. supp. 2d 820, 824–25 (s.d.n.y. 2001).; lawrenz v. james, 852 f. supp. 986 (m.d. fla. 1994); savina v. gebhart, 497 f. supp. 65 (d. md. 1980); murray v. jamison, 333 f. supp. 1379 (w.d.n.c. 1971) (city wrongfully discharged its employee in violation of the first and fourteenth amendments for being grand dragon of the ku klux klan); essex cty. sheriff’s dep’t v. essex cty. corr. officers ass’n, 27 mass. l. rptr. 487 (mass. sup. ct. 2010) (corrections employees condoned and encouraged racially harassing posts to union’s website); state v. henderson, 762 n.w.2d 1 (neb. 2009) (state trooper joined the knights party, a ku klux klan affiliate); cutler v. dorn, 955 a.2d 917 (n.j. app. 2008); in re n.y.s. law enf’t officers union, 694 n.y.s.2d 170; karins v. city of atlantic city, 706 a.2d 706 (n.j. 1998) (racial epithet by off-duty fire fighter uttered at police officer was not protected by the first amendment); and hawkins v. dep’t of public safety & corr. servs., 602 a.2d 712 (md. ct. app. 1992) (corrections officer discharged for off-duty anti-semitic outburst at bank). 182 dixon v. coburg dairy, inc., 369 f.3d 811 (4th cir. 2004); webber v. first student, inc., 928 f. supp. 2d 1244 (d. ore. 2013); vanderhoff v. john deere consumer prods., inc., 21 ier cases 862, 2003 wl 23691107 (d.s.c. 2003); and powell v. media gen. ops., inc., civ. a no. 7:10-3170-hff-kfm, 2011 wl 4501836 (d.s.c. 2001) (discharged employee’s speech, equating muslims with terrorism, not protected in private workplace). 183 in bellamy v. mason’s stores, inc., 368 f. supp. 1025 (e.d. va. 1973), the plaintiff contended that his termination from employment due to his affiliation with the united klans of america, and therefore violated his first amendment rights. rejecting this view, the court concluded that section 1985(3) does not recognize a right of freedom of association against a private actor. see also savina v. gebhart, 497 f. supp. 65 (d. md. 1980) (section 1985 does not protect speech of a klan member). 260 columbia journal of race and law [vol. 8:2 d. conflicting treatment of racist speech: employer dilemma federal appellate court rulings offer the most direct evidence of the growing conflict between the nlra and title vii in treating racist speech in the workplace. four trends are discernible in the relationship between courts and the nlrb since the board decided sewell. the following analysis provides a qualitative complement to the statistical charts in part iii. the first trend is surprising: after sewell, the nlrb almost always tolerated this type of communication.184 the board did not overturn an election even though the employer said that the union tried to force integration “down the throats of the people living in the south.”185 similarly, the board found no problem in “temperate statements with racial overtones,” reasoning that employees were free to discuss race relations.186 where a union capitalized on 184 kresge-newark, inc., 112 n.l.r.b. 869 (1955) (workers were able to sift through the employer’s claim that a union official said that the company would layoff minority workers unless they had union protection). 185 allen-morrison sign co., 138 n.l.r.b. 73 (1962), where the board reasoned that the employer’s comments were germane and a matter of genuine interest to the white southern workers whom the union was attempting to organize. see also n.l.r.b. v. bush hog, inc., 405 f.2d 755, 757, n.2 (5th cir. 1968 (employer’s statement that union donated funds to further racial integration did not warrant reversal of union election as a bargaining representative). 186 n.l.r.b. v. balt. luggage co., 387 f.2d 744, 746 (4th cir. 1967). campaign messages that related to minority employee concerns about unfair treatment did not violate the nlra because this communication “was no gospel of hate.” id. at 747. where africanamerican employees perceived selective enforcement of rules by their employer, the appeals court concluded: “rather than appealing to deepseated emotional fears, the letter and speeches temperately addressed themselves to the economic and social self-interest of the workers, over ninety percent of whom were negro. such an exhortation must be a legitimate tactic in any pre-election campaign.” id. no. 1:209] slurred speech 261 tensions in a workplace between blacks and hispanics, the board did not overturn an election.187 the nlrb tolerated racial remarks if they were used casually.188 in a similar vein, racial epithets did not result in setting aside an election where they were “common usage” and without any proof of racial animosity.189 inflammatory race appeals in speeches and leaflets did not invalidate an election;190 nor did expression of religious prejudice.191 the board declined to set aside an election in which a supervisor said that a potential union representative “did not like blacks.”192 innuendo suggesting that managers are racists did not overturn election results.193 nor did a union’s mention that 187 family serv. agency s.f. v. n.l.r.b., 163 f.3d 1369 (d.c. cir. 1999). 188 englewood hosp., 318 n.l.r.b. 806, 807 (1995). 189 n.l.r.b. v. foundry div. of alcon indus., inc., 260 f.3d 631, 635 (6th cir. 2001). apart from campaign messages, a workplace climate where racial slurs are common will not result in the nlrb overturning an election in the absence of persuasion “to vote for or against a union on the basis of invidious prejudices.” id. at 637. 190 see n.l.r.b. v. heartshare human servs. of n.y., inc., 108 f.3d 467 (2d cir. 1997) (finding that a union’s references to a “racists empire (sic),” “slaves in the cotton fields,” and “apartheid” did not undermine the fairness of the election). cf. newark portfolio jv, llc v. n.l.r.b., 658 f. app’x 649 (3d cir. 2016) (denying enforcement to nlrb order certifying a union, where an unknown person during the representation election may have shouted, in reference to the company’s owners, “these jews don’t care about you, they only care about the money.”). 191 n.l.r.b. v. carl weissman & sons, inc., 849 f.2d 449, 450 (9th cir. 1988) (union official told employees that “the weissmans were pretty stingy with their wages and they had the right kind of background for being stingy”). 192 coca-cola bottling co., 232 n.l.r.b. 717, 718 (1977) (comment by supervisor was “temperately presented and . . . fairly capable of evaluation by eligible voters”). 193 see, e.g., n.l.r.b. v. utell int’l, inc., 750 f.2d 177 (2d cir. 1984) (holding that the representation election was not tainted by employee misrepresentations of racial prejudice). the issue of raciallycharged communication was not discussed in the nlrb’s decision, utell 262 columbia journal of race and law [vol. 8:2 the employer is racist.194 the fact that union organizers played up the “pro-black protection sentiments” of the workforce was not inflammatory.195 in a mostly black workforce, the union’s intentional exclusion of whites from the campaign did not overturn an election.196 a union’s comparison of management to hitler was not sufficiently inflammatory under sewell to void election results.197 taking the totality of these rulings—all of which occurred after sewell’s policy for regulating racially inflammatory speech—the board showed no ability to distinguish between epithets and stray remarks, on the one hand, and slurs that aimed to bait and divide workers along racial and ethnic lines, on the other. in short, the first observable trend is that the nlrb’s sewell policy is rarely enforced. the policy is virtually meaningless. in a second trend, federal appeals courts int’l, inc., 270 n.l.r.b. no. 76 (1984); but the appellate court took up the issue. see also zartic, inc., 315 n.l.r.b. 495, 496 (1994) (union falsely accused employer of giving money to the ku klux klan). 194 beatrice grocery prods., 287 n.l.r.b. no. 31 (1989) (nlrb found that union’s one-time remarks criticizing the company’s racism was not a central part of the campaign). the order was enforced in martha white foods, inc. v. n.l.r.b., 872 f.2d 1026 (6th cir. 1989). 195 n.l.r.b. v. bancroft mfg. co., inc., 516 f.2d 436, 442 (5th cir. 1975). 196 n.l.r.b. v. hood furniture mfg. co., 941 f.2d 325, 330–31 (5th cir. 1991). 197 arlington hotel co., inc. v. n.l.r.b., 712 f.2d 333, 338 (8th cir. 1983). the court explained: the hitler and slave ship references at issue were found by the regional director to fall outside the sewell standard. sewell does not require that all racial references be excluded from a campaign, but is concerned with appeals to animosity and prejudice. the slave ship reference, although having racial overtones, was directed at economic, not racial, oppression. the hotel replied to the slave ship reference with statements about increased employees’ benefits and improved conditions. no. 1:209] slurred speech 263 demonstrated more concern for prejudicial comments than the nlrb.198 in these cases, the board certified a union’s election or ordered a company to bargain with a union without mentioning any controversy about race. but as the following discussion shows, appellate courts delved into the record and cited racial slurs during campaigns as reasons to deny enforcement to these orders. ● third circuit court of appeals: the nlrb in silverman’s men’s wear, inc. ordered an employer to bargain with a union, without mentioning a slur during the union’s organizing campaign. 199 on appeal, the third circuit denied enforcement to the board’s order, noting that a union representative told employees that a company officer is a “stingy jew.”200 ● fourth circuit court of appeals: in schapiro & 198 the ninth circuit court of appeals provided an exception to the trend in appellate rejection of the nlrb’s permissive application of sewell. the board ordered the company to bargain with the union in did building services, 291 n.l.r.b. no. 37 (1988). the nlrb case made no mention of employer objections to racially-themed campaigning in behalf of the union. the ninth circuit enforced the board’s order, explaining that an employee’s slurs against “gringos and jews” were “vile and seething with prejudice” but did not warrant invalidation of the election. did bldg. servs., inc. v. n.l.r.b., 915 f.2d 490, 499 (9th cir. 1990). the court concluded that isolated appeals to prejudice must be left to voters’ “good sense and judgment.” id. see also case farms of n.c., inc. v. n.l.r.b., 128 f.3d 841, 845 (4th cir.1997), where the fourth circuit affirmed the nlrb’s decision not to overturn an election where appeals to racial prejudice were part of an effort to air workplace grievances or other workrelated issues. the company objected to the union’s misleading and false statement that the company fired amish workers from its ohio plant. id. at 844. the court rejected the company’s argument that sewell disallowed appeals to ‘“ethnocentric fears.”’ id. at 845. the court said, in response, ‘“if . . . racial or sexual remarks . . . do not form the core or theme of the campaign . . . and if the remarks are not inflammatory, they should be reviewed [only] under the standards applied to other types of misrepresentation (quotation and citation omitted).”’ 199 250 n.l.r.b. no. 181 (1980). 200 n.l.r.b. v. silverman’s men’s wear, inc., 656 f.2d 53, 55 (3d cir.1981). 264 columbia journal of race and law [vol. 8:2 whitehouse, inc., the board ordered the employer to bargain with a union, dismissing the employer’s concern that the union circulated leaflets that appealed to racial prejudice.201 denying enforcement to the order, the fourth circuit applied sewell to reject the union’s incitements to a mostly black workforce.202 ● sixth circuit court of appeals: the nlrb in carrington south health care center found that a union was properly certified as a bargaining representative after an election.203 the sixth circuit denied enforcement, citing evidence that union cartoons used “obvious images of bondage or violence visited upon racial minorities by a white majority.”204 the nlrb in eurodrive, inc. ordered the employer to bargain with a union following a representation election, notwithstanding the employer’s contention that the union instigated racial harassment.205 in denying enforcement,206 the court cited information that the board omitted from its decision— the union organizer told white employees that they “needed the union to protect their jobs because white employees were not protected by the equal opportunity laws.” 207 the board in ki (usa) corp. ordered 201 148 n.l.r.b. 958 (1964). 202 n.l.r.b. v. schapiro & whitehouse, inc., 356 f.2d 675, 679 (4th cir. 1966) (stating that “[f]or the union to call upon racial pride or prejudice in the contest could ‘have no purpose except to inflame the racial feelings of voters in the election.’ besides their utter irrelevance, the leaflets appear to this court as highly inflammatory . . . the reliance upon race inhibited a ‘sober, informed exercise of the franchise’ and was altogether out of place.”). 203 314 n.l.r.b. no. 9 (1994). 204 carrington s. health care ctr., inc. v. n.l.r.b., 76 f.3d 802, 807 (6th cir. 1996) (union cartoons also showed a group of workers labor as “beasts of burden, pulling their superiors in a wagon while being whipped; a black worker is to be summarily executed by a white overlord”). 205 n.l.r.b. v. eurodrive, inc., 60 n.l.r.b. 1466 (1982). 206 724 f.2d 556, 559 (6th cir. 1984). 207 id. at 557 (the court found that this communication was an appeal to racial prejudice). no. 1:209] slurred speech 265 the company to bargain with the union following an election.208 the nlrb certified the union’s election, reasoning that the letter was not “intended to generate a general racially-based hostility against japanese nationals.”209 however, the sixth circuit refused to enforce the board’s order, citing the union’s circulation of a letter at a japanese-owned company that communicated a japanese businessman’s view that american workers are lazy.210 ● seventh circuit court of appeals: in triplex manufacturing co., the nlrb ordered business owners to bargain with a union.211 on appeal, the seventh circuit in nlrb v. katz212 denied enforcement, citing a union rally where a priest said the owners “are jewish and they’re getting rich while we’re getting poor,”213 and “why should we make them rich because jewish people are rich and we are poor and killing ourselves for them.”214 ● eleventh circuit court of appeals: the board in m & m supermarkets, inc., never mentioned racist communications in the election process.215 on appeal, 208 ki (usa) corp., 309 n.l.r.b. 1063 (1992). 209 id. at 1066. 210 ki (usa) corp. v. n.l.r.b., 35 f.3d 256 (6th cir. 1994). in an unusual development, the court explicitly stated that the midland standard is the “wrong one to apply” where racially inflammatory speech is used. id. at 260. the court held that “the truthfulness of racially-related remarks is the type of ‘other campaign conduct’ to which the lenient midland standard of truthfulness, by its own terms, does not apply.” id. the court adopted the dissenting view in the nlrb decision that the union’s “negative stereotyping” of the japanese has no place in an nlrb election. id. compare n.l.r.b. v. dpm of kansas, inc., 744 f.2d 83, 86 (10th cir. 1984) (“elections will not be set aside because of misleading campaign statements, absent the use of forged documents or the alteration of an official board document in a manner suggesting that the board favors one of the parties”). 211 251 n.l.r.b. no. 111 (1980). 212 701 f.2d 703 (7th cir. 1983). 213 id. at 705. 214 id. 215 280 n.l.r.b. no. 40 (1986). 266 columbia journal of race and law [vol. 8:2 however, the eleventh circuit denied enforcement to the nlrb’s order, noting that an employee said, “blacks were out in the cotton field while they, the damned jews, took their money from the poor hardworking people.”216 the third trend shows that appellate courts are divided in applying sewell’s framework where the speaker is a third party (not formally with a union or an employer). third parties include employees who support or oppose a union, or an outside organization.217 in one view, the seventh circuit applied the sewell framework, regardless of third party status, provided that prejudicial communications impair the employees’ freedom of choice in an nlrb election.218 the fact that the speaker is not the union or the employer is immaterial: the determinant is whether an inflammatory “remark prejudiced the outcome of the election.”219 the ninth, eleventh, and fourth circuits have differed by requiring more proof that the communication tainted the election with intolerable prejudice.220 the 216 m & m supermarkets, inc. v. n.l.r.b., 818 f.2d 1567, 1569 (11th cir.1987). 217 n.l.r.b. v. katz, 701 f.2d 703, 705 (7th cir. 1983) (catholic priest who made anti-semitic comments about the company’s owners during an organizing meeting was a third party). 218 id. at 706–07. 219 thus, the seventh circuit concluded that a priest’s antisemitic characterization of the company’s owners, expressed at a union meeting attended by a mostly catholic workforce, was evidence that the election was swayed by these slurs. id. at 708. 220 this is because unions and employers are unable to control the communications of individual employees (speaking as co-workers) or outsiders, such as community leaders. see did bldg. servs. v. n.l.r.b., 915 f.2d 490, 498 (9th cir. 1990), involving religious and ethnic slurs by an employee who was also union organizer (“the jewish gringos were exploiting us”). the court said that an election should be invalidated only if a third-party’s “appeal to prejudice … so taint[ed] the election atmosphere as to render free choice of representation impossible.” id. at 498. in another case, a union supporter—speaking as an employee and not an officer of the union—referred to the company’s owners as “the damn no. 1:209] slurred speech 267 finding for these circuits is significant in view of the increasing activism of white supremacy groups in protests and political campaigns. these courts effectively open the door for racist grievances in union representation elections insofar as effective racist appeals can be subtle, cleverly symbolic, or communicated on private and disguised social media platforms. subtlety and privacy can protect racism jews who run this company.” m & m supermarkets, 818 f.2d at 1572. denying enforcement to the nlrb’s bargaining order, the eleventh circuit said that third-party appeals to prejudice will invalidate an election if they “destroyed the atmosphere necessary to the exercise of a free choice in the representation election.” more recently, in ashland facility operations, llc v. n.l.r.b., the fourth circuit joined these appellate courts, reasoning that “were we to apply the sewell burden-shifting approach, it would create the absurd result that a party would bear the burden of defending the veracity and relevance of comments made by an entity not party to the case and for which it was not responsible.” 701 f.3d 983, 993 (4th cir. 2012). but see the dissenting opinion in n.l.r.b. v. flambeau airmold corp., 178 f.3d 705 (4th cir. 1999), upholding a vote for a union notwithstanding a damaging and false rumor. there, judge niemeyer noted: the misconduct in this case—a false accusation, circulated on the eve of the representation election, that a manager referred to the employees as “a bunch of niggers”—was most clearly an accusation of racial bigotry. it was directed at management; it was an attempt to win the election by creating animosity along racial lines; and it was an attempt “to divert the employer from legitimate issues by insinuating an irrelevant appeal to race.” a better approach, according to judge niemeyer, “would require a new representation election based on third-party race-based inflammatory conduct when (1) the conduct was of the type that would pollute the atmosphere necessary for the exercise of free choice, and (2) the overall circumstances suggest that, more likely than not, the conduct altered the outcome of the election.” id. at 715. see also rheem mfg. co. v. n.l.r.b., 28 f.3d 1210 (4th cir. 1994) (union supporter started false rumor that company promoted a white employee as a supervisor, a matter that was discussed by more senior black employees). 268 columbia journal of race and law [vol. 8:2 when courts use a high proof standard of intolerable prejudice. the fourth trend is found in federal court rulings on racist speech that occurs on picket lines, not representation elections or organizing campaigns. recent courts have observed the conflict between title vii’s dictates for a workplace free of racial harassment, and the nlrb’s emphasis on protecting slurs during heated labor disputes.221 this problem is illustrated in detroit newspaper agency, where the board ordered reinstatement for a striker whose racist slurs and personal threats were directed at an employee who crossed a picket line.222 the nlrb also ordered reinstatement of a striker in airo die casting, inc. who approached a replacement worker with both middle fingers extended while screaming “fuck you, nigger.”223 in cooper tire & rubber co. v. nlrb, where picketing strikers shouted racial taunts black replacement workers, the nlrb ordered the company to rehire an offending employee who was fired under its eeo policy.224 221 polynesian hospitality tours, 297 n.l.r.b. 228, 252 (1989) (employees engaged in protected concerted activity with “use of epithets, vulgar words, profanity, vulgar gestures, and the like”); and cont’l can co., inc., 291 n.l.r.b. 290 (1988) (discharge due to racially insulting comments was actually motivated by employee’s pro-union comments, and employer had previously tolerated racial slurs). 222 342 n.l.r.b. 223 (2004). a woman who was working during the strike had her car blocked by two picketers at which point one striker said, “you fuckin’ bitch, nigger lovin’ whore. it’s your fault that white america lost their jobs. your family is going to die. i hope you tell your children before they die that its (sic) your fault and its (sic) because you gave our jobs away.” id. at 268. 223 347 n.l.r.b. 810, 811 (2006). the board reasoned that striker’s “use of obscene language and gestures and a racial slur, standing alone without any threats or violence, did not rise to the level where he forfeited the protection of the act.” id. 224 866 f.3d 885, 889 (8th cir. 2017) (striker called out, “did you bring enough kfc for everybody?” and “hey, anybody smell that? i smell fried chicken and watermelon.” after that comment, an unidentified picketer shouted, “go back to africa, you bunch of f***ing losers.”). no. 1:209] slurred speech 269 but two courts have taken note of the conflict between title vii’s proscription of racial harassment and the nlrb’s anachronistic acquiescence to it. a jury in dowd v. united steelworkers of america found that a striking union created a hostile work environment under title vii for employees who were subjected to a continuing stream of racial slurs and physical threats.225 and a recent federal appeals court decision, consolidated communications, inc. v. nlrb,226 reached a similar conclusion. judge millett’s concurring opinion offers a fitting summation of the growing conflict between nlra and title vii cases: i write separately, though, to convey my substantial concern with the too-often cavalier and enabling approach that the board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. the sexually and racially disparaging conduct that board decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.227 225 253 f.3d 1093, 1102 (8th cir. 2001). 226 837 f.3d 1, 25 (d.c. cir. 2016) (admonishing the nlrb not to assume that “the use of abusive language, vulgar expletives, and racial epithets” between employees “is part and parcel of the vigorous exchange that often accompanies labor relations.”). 227 id. at 20–21. against the backdrop of judge millet’s concurrence, several nlrb rulings have taken the stance she advocates. notably, however, many of these are older cases. e.g., old town shoe co., 91 n.l.r.b. 240, 273–74 (1950) (nlrb denied reinstatement to striker 270 columbia journal of race and law [vol. 8:2 v. conclusion the nlrb should revise its speech doctrine for representation elections to remove legal protection for racist speech that meets the standard for hostile work environment under title vii. in particular, the nlrb should apply harris v. forklift systems, inc. by considering the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”228 labor and employment law should not be judicially segregated so that racist speech is protected under the nlra while triggering liability under title vii for employers. but there is more to this research. when the nlrb tolerates racist speech in representation elections, this normalizes an atmosphere of union organizing or employer resistance to unionizing that was typical when white workers fought racial integration.229 turning to strikes where replacements are hired, employers take advantage of economic inequality.230 this often means that blacks, who told a co-worker, while picketing, that “it is too bad hitler couldn’t have lasted a couple of more years. he’d have gotten rid of all the goddam jews”); nassau ins. co., 280 n.l.r.b. 878, 894 (1986) ( “[t]he use of racial and religious epithets [by striking employees is] unlikely to be forgotten or forgiven after the strike is over, thus leading to potentially disruptive conditions in the workplace if the [offending employee] were [reinstated]”); and avondale indus., 333 n.l.r.b. 622, 637–38 (2001) (employer lawfully discharged union activist who had unfounded concern that her foreman was a klansman, where employer concerned about the disruption her remark would cause in the workplace). 228 harris v. forklift sys., inc., 510 u.s. 17, 23 (1993). 229 dubois, supra note 23. 230 a detailed case study is published in timothy j. minchin, torn apart: permanent replacements and the crossett strike of 1985, 59 ark. hist. q. 30, 43 (2000) (“replacement workers claimed that they were motivated primarily by the high wages and good benefits” that were once no. 1:209] slurred speech 271 hispanics, and immigrants are hired to break strikes by white employees.231 in this explosive environment, the nlrb takes an antiquated view that picketers should be legally protected when they resort to racist taunts and ridicule. given that many strikes end with employers retaining replacement workers,232 the board’s current policy adds fuel to divisive employer strategy by affording legal protection to strikers who transmute an economic dispute into a racial confrontation.233 my policy proposal is supported by empirical evidence showing that the nlrb ignores its own policy against racist speech in sewell; and these findings align with a growing body of rulings from federal appeals courts. critics of my proposal may complain that having a unity of speech policy between the nlra and title vii would create a civility code paid to strikers). 231 mark noon, “it ain’t your color, it’s your scabbing”; literary depictions of african american strikebreakers, 38 african am. rev. 429 (2004) (reporting contemporaneous written accounts of strikes by whites with black replacement workers). another example of racial cleavage appears in united brotherhood of carpenters & joiners of america, local 610, afl-cio v. scott, 463 u.s. 825 (1983), where white union members attacked black workers, hired from outside the community, to work at a construction site. 232 the striker replacement doctrine, fashioned by the supreme court in n.l.r.b. v. mackay radio & tel. co., 304 u.s. 333, 345–46 (1938), allows employers to hire permanent striker replacements without violating the nlra. 233 an example of this tactic appears in twa, inc. v. independent fed’n of flight attendants, 489 u.s. 426 (1989). during a flight attendants strike, the airline lures strikers to abandon the picket line by promising these crossovers a seniority advantage over strikers, thereby improving job and domicile assignments. criticizing the majority’s reason that this tactic did not undermine the right to strike, justice brennan reasoned: “more fundamental, i fear, is the legal mistake inherent in the court’s objection to ‘penalizing those who decided not to strike in order to benefit those who did.’ the court, of course, does precisely the opposite: it allows twa to single out for penalty precisely those employees who were faithful to the strike until the end, in order to benefit those who abandoned it.” id. at 447. 272 columbia journal of race and law [vol. 8:2 in representation elections. elections, they may argue, should be free-wheeling, uncensored forums for all viewpoints. this would miss the point, however, that a workplace election is not the same as an election for public office. while a racist can be elected as president, a union or employer cannot run on a platform of white separatism or racial preference without creating liability under title vii. a free speech approach would also overlook the fact that mere epithets and stray remarks do not constitute verbal harassment under title vii. instead, speech must be sufficiently severe or pervasive as to alter conditions of employment. other critics may point out that employers already have a psychological advantage over union organizers because they can hold captive audience speeches that sow fear and anxiety over losing jobs if employees elect a union as a bargaining agent. why shouldn’t a union organizer, or union-busting management consultant, be able to tap into employee anxieties over immigration and race? my study answers this question by proposing title vii’s harassment standard, which has been accepted without significant controversy for over twenty years. if a union organizer or management consultant cannot hang nooses or use racial epithets in their own employment relationship without facing legal consequences, why should their campaign speeches that use or lead to these incitements be protected under the nlra? my proposal not only limits the worst type of union election speech, but would focus campaigns on economics and the benefits and drawbacks of having union representation. without making this policy change, the nlra will shield racist grievances by employees and racebaiting by employers, opening the door to re-segregating the american workplace. vi. table of cases a. nlrb cases arranged by decision year no. 1:209] slurred speech 273 planters mfg. co., 10 n.l.r.b. 735 (1938) fred a. snow co., 41 n.l.r.b. 1288 (1942) s.k. wellman co., 53 n.l.r.b. 214 (1943) kresge-newark, inc., 112 n.l.r.b. 869 (1955) chock full o’ nuts corp., 120 n.l.r.b. 1296 (1958) paula shoe co., 121 n.l.r.b. 673 (1958) sharnay hosiery mills, inc., 120 n.l.r.b. 750 (1958) kelsey-hayes co., 126 n.l.r.b. no. 16 (1960) petroleum carrier corp. of tampa, inc., 126 n.l.r.b. 1031 (1960) associated grocers of port arthur, inc., 134 n.l.r.b. 468 (1961) granwood furniture co., 129 n.l.r.b. 1465 (1961) allen-morrison sign co., 138 n.l.r.b. 73 (1962) sewell mfg. co., 138 n.l.r.b. 66 (1962) boyce machinery corp., 141 n.l.r.b. 756 (1963) durant sportswear, inc., 147 n.l.r.b. 906 (1964) schapiro & whitehouse, inc., 148 n.l.r.b. 958 (1964) bush hog, inc., 161 n.l.r.b. 1575 (1966) baltimore luggage co., 162 n.l.r.b. 1230 (1967) snap out binding & folding inc., 166 n.l.r.b. 316 (1967) bancroft mfg. co., 210 n.l.r.b. 1007 (1974) sumter plywood corp., 215 n.l.r.b. 227 (1974) bancroft mfg. co., 210 n.l.r.b. 1007 (1974) coca-cola bottling co., 232 n.l.r.b. 717 (1977) peerless of america, inc., 229 n.l.r.b. 183 (1977) triplex mfg. co., 251 n.l.r.b. 1633 (1980) hanes corp., 254 n.l.r.b. 532 (1981) eurodrive, inc., 260 n.l.r.b. 1466 (1982) arlington hotel co., inc., 261 n.l.r.b. 967 (1982) silverman’s men’s wear, inc., 263 n.l.r.b. 191 (1982) utell int’l, inc., 270 n.l.r.b. no. 76 (1984) ykk (u.s.a.) inc., 269 n.l.r.b. 82 (1984) beatrice grocery products, 287 n.l.r.b. 302 (1987) carl weissman & sons, inc. v. int’l ass’n, 282 n.l.r.b. no. 149 (1987) did building services, inc. v. service employees int’l union, 274 columbia journal of race and law [vol. 8:2 local no. 102, 91 n.l.r.b. no. 37 (1988) hood furniture mfg. co. v. int’l u. of electronic, electrical, salaried, machine and furniture workers, 297 n.l.r.b. no. 51 (1989) rheem mfg. & united steelworkers of america, 310 n.l.r.b. no. 116 (1993) zartic, inc., 315 n.l.r.b. 495 (1994) englewood hospital, 318 n.l.r.b. 806 (1995) heartshare human services of new york, inc., 317 n.l.r.b. 611 (1995) benteler indus., inc., 322 n.l.r.b. no. 6 (1996) case farms of n.c., inc., 320 n.l.r.b. no. 97 (1996) family housing and adult resources, inc., 322 n.l.r.b. no. 65 (1996) uniroyal technology corp., 319 n.l.r.b. no. 121 (1996) clearwater transp., inc., 323 n.l.r.b. no. 140 (1997) service employees int’l union, local 790, 325 n.l.r.b. no. 86 (1998) foundry div. of alcon industries, inc., 328 n.l.r.b. no. 129 (1999) honeyville grain, 342 n.l.r.b. no. 61 (2004) standard register co., 346 n.l.r.b. no. 56 (2006) ashland facility ops., llc, d/b/a ashland nursing and rehab. center, 357 n.l.r.b. no. 90 (2011) newark portfolio jv, 362 n.l.r.b. no. 108 (2015) b. federal appeals court cases arranged by decision year arcade-sunshine co., 118 f.2d 49 (d.c. cir. 1940) reeves rubber, 153 f.2d 340 (9th cir. 1946) bibb mfg. co., 82 n.l.r.b. 338 (1949) n.l.r.b. v. bibb mfg. co., 188 f.2d 825 (5th cir. 1951) n.l.r.b. v. happ bros. co., 196 f.2d 195 (5th cir. 1952) n.l.r.b. v. model mill co., 210 f.2d 829 (6th cir. 1954) n.l.r.b. v. schapiro & whitehouse, inc., 356 f.2d 675 (4th cir. 1966) no. 1:209] slurred speech 275 n.l.r.b. v. baltimore luggage co., 387 f.2d 744 (4th cir. 1967) n.l.r.b. v. bush hog, inc., 405 f.2d 755 (5th cir. 1968) n.l.r.b. v. bancroft mfg. co., inc., 520 f.2d 1406 (5th cir. 1975) n.l.r.b. v. bancroft mfg. co., inc., 516 f.2d 436 (5th cir. 1975) n.l.r.b. v. sumter plywood corp., 535 f.2d 917 (5th cir. 1976) uniroyal technology corp., royalite div. v. n.l.r.b., 98 f.3d 993 (7th cir. 1976) clearwater transport, inc. v. n.l.r.b., 133 f.3d 1004 (7th cir. 1978) peerless of america, inc. v. n.l.r.b., 576 f.2d 119 (7th cir. 1978) n.l.r.b. v. silverman’s men’s wear, inc., 656 f.2d 53 (3d cir. 1981) hanes corp. v. n.l.r.b., 677 f.2d 1008 (4th cir. 1982) arlington hotel co., inc. v. n.l.r.b., 712 f.2d 333 (8th cir. 1983) n.l.r.b. v. katz, 701 f.2d 703 (7th cir. 1983) n.l.r.b. v. utell int’l, inc., 750 f.2d 177 (2d cir. 1984) n.l.r.b. v. eurodrive, inc., 724 f.2d 556 (6th cir. 1984) n.l.r.b. v. halperin distrib. corp., 826 f.2d 287 (4th cir. 1987) n.l.r.b. v. carl weissman & sons, inc., 849 f.2d 449 (9th cir. 1988) martha white foods, inc. v. n.l.r.b., 872 f.2d 1026 (6th cir. 1989) did bldg. servs., inc. v. n.l.r.b., 915 f.2d 490 (9th cir.1990) n.l.r.b. v. hood furniture mfg. co., 941 f.2d 325 (5th cir. 1991) ki (usa) corp. v. n.l.r.b., 35 f.3d 256 (6th cir. 1994) rheem mfg. co. v. n.l.r.b., 28 f.3d 1210 (4th cir. 1994) n.l.r.b. v. heartshare human services of new york, inc., 108 f.3d 467 (2d cir. 1997) 276 columbia journal of race and law [vol. 8:2 case farms of n.c., inc. v. n.l.r.b., 128 f.3d 841 (4th cir.1997) n.l.r.b. v. benteler indus., inc., 145 f.3d 1332 (6th cir. 1998) n.l.r.b. v. family housing and adult resources, inc., 141 f.3d 1177 (7th cir. 1998) family service agency san francisco v. n.l.r.b., 163 f.3d 1369 (d.c.cir. 1999) n.l.r.b. v. foundry div. of alcon indus., inc., 260 f.3d 631 (6th cir. 2001) honeyville grain, inc. v. n.l.r.b., 444 f.3d 1269 (10th cir. 2006) n.l.r.b. v. standard register co., 233 fed. app’x 217 (4th cir. 2007) ashland facility operations, llc v. n.l.r.b., 701 f.3d 983 (4th cir. 2012) newark portfolio jv, llc v. n.l.r.b., 2016 wl 4547197 (3d cir. 2016) i. introduction a. legal importance the research question b. motivation for the research question: re-emerging white supremacy ii. the national labor relations act: campaign speech and elections a. overview b. the nrlb’s policies on racist speech 1. no policy (1935–1947) 2. “laboratory conditions” in general shoe (1948–1962) 3. sewell (1962) and midland life insurance co. (1982) iii. research methods and findings: racist messages in nlrb elections a. sample and research methods b. data and fact-findings 1. statistical findings for nlrb rulings 2. statistical findings for federal appellate court rulings iv. resurgent white supremacy: employer liability under title vii a. resurgence of white supremacy b. employer liability for racial harassment: high risk c. employer liability for disciplining employees for racial harassment: low risk d. conflicting treatment of racist speech: employer dilemma v. conclusion vi. table of cases a. nlrb cases arranged by decision year b. federal appeals court cases arranged by decision year columbia journal of race and law vol. 11 july 2021 no. 3 article reimagining schools’ role outside the family regulation system brianna harvey,* josh gupta-kagan,† & christopher church the united states’ family regulation system often begins with well-intentioned professionals making child protection hotline calls, jeopardizing their own ability to work with families and subjecting the families to surveillance. by the system’s own standards, most of this surveillance leads to no meaningful action. nowhere is this reality more present than in schools. educational personnel serve as the leading driver of child maltreatment allegations, yet decades worth of data reveal educator reports of maltreatment are the least likely to be screenedin and the least likely to be substantiated or confirmed. in other words, education personnel— whether motivated by genuine concern, which may nevertheless be informed by implicit biases towards low-income families and families of color; fear of liability; or the desire to access services they believe families cannot acquire elsewhere— overwhelm our child welfare system with unnecessary allegations of maltreatment. this reality has fundamentally transformed the relationship between families and schools. carrying the heavy burden of mandated reporting laws, public schools disproportionately * ph.d. student, university of california los angeles, school of education and information studies. † professor of law, university of south carolina school of law. the author would like to thank gregg strauss and emily suski for comments on earlier drafts, and gabby williams for excellent research assistance.  champs clinic, university of south carolina school of law. 576 colum. j. race & l. [vol. 11:575 refer black and low-income families to the family regulation system, abdicating schools’ opportunity to serve these same families in the communities in which they reside. rather than serving as the great equalizer, public schools increasingly contribute to the carceral state’s regulation of families. this article argues that schools must shift their role away from the reporting and surveillance of these families, and instead directly provide and arrange for services for families. this change begins with sharply limiting or repealing mandatory reporting obligations (permitting voluntary reports in severe cases)—but that is only the start. schools are well-positioned to create new pathways to the supports and services from which most families reported to the family regulation system might actually benefit. schools are already a primary source of food for impoverished children, and can help ensure low-income families access all the public benefits to which they are entitled. schools can largely refer children and families to the same services that the family regulation system can—such as mental health services and substance abuse treatment—but without that system’s coercive authority and its associated problems. where some services are tied to the family regulation system’s involvement, the law should permit schools to refer families directly. schools know which families need legal services to defend their housing, access benefits, obtain orders of protection—or any of the myriad of other supports that poverty lawyers can provide. this shift would tie schools to the families and communities that they serve and benefit those families and communities far more than the surveillance and policing they experience under the current family regulation system. 2021] reimagining schools’ role 577 i. introduction ........................................................................ 578 ii. why focus on schools? ...................................................... 580 a. public schools: the great equalizer or part of the carceral web? .............................................................. 581 b. schools illustrate how this system is family regulation not child protection ................................ 584 iii. cps agencies are usually not and should never be the gateway to services .................................................... 590 a. the mismatch between family needs and cps agency focus................................................................ 590 b. false perceptions of accessing services through cps agencies ............................................................... 592 c. narrow cases when cps has a monopoly on services and the risk that monopoly may grow ...... 593 iv. an alternative vision: schools serving families apart from cps agencies and the family regulation system . 597 a. losing coercion over families .................................... 598 b. linking children and families to services— without cps ................................................................ 599 1. public benefits ....................................................... 599 2. legal services referrals ....................................... 600 3. school-based health supports ............................. 604 4. peer support models ............................................. 605 5. increasing school social workers ........................ 607 6. paying for reforms ................................................ 608 v. conclusion .......................................................................... 610 578 colum. j. race & l. [vol. 11:575 i. introduction america’s public schools are an essential part of the present family regulation system,1 the collection of public and private agencies and court systems which collectively intervene in and exercise coercive authority over largely low-income and disproportionately black families in the name of protecting children. this system is triggered by allegations of abuse or neglect made to child protective services (cps) agencies, and schools account for the largest single source of such allegations of child abuse and neglect. this article focuses on schools’ role in the present system, as they represent the worst of the problems in that system, yet hold great promise for a new approach to identifying and responding to family and community adversity. the current system features an enormously large and largely ineffective legal and administrative apparatus. pursuant to mandated reporting laws, millions of professionals report suspected abuse and neglect to cps agencies. cps agencies’ primary response is to investigate those allegations to determine whether the child is a victim of maltreatment and what, if any, services the agency should offer. cps agencies have authority to remove children from families, so any such intervention is inherently coercive and represents state regulation of families. the scope of that regulation has grown to the millions of children, and cps agencies classify only a minority of those children as having been abused or neglected, and remove an even smaller 1 the authors acknowledge the importance of language through the use of the “family regulation system,” when referring to the multi-agency system of surveillance, policing, and control historically referred to as the “child welfare” or “child protection” system. we urge other scholars and professionals to interrogate the language used around this system and its actual functionality which has historically disproportionately harmed and oppressed bipoc (black, indigenous, and people of color). for the purpose of this manuscript, we utilize the “family regulation system” in place of more frequently-used identifiers such as “child protective services” and “child welfare.” we use “child protective services (cps) agencies” to refer to the specific state and local agencies charged with protecting children from abuse and neglect—a role which, as argued throughout this article, should be limited to severe cases. we credit dorothy roberts for the initial conceptualization of “family regulation,” and recent scholarship from emma peyton williams which further coined the phrase “family regulation system.” dorothy roberts, feminism, race, and adoption policy, in adoption matters: philosophical and feminist essays 234 (sally haslanger & charlotte witt eds., 2005); emma peyton williams, dreaming of abolitionist futures, reconceptualizing child welfare: keeping kids safe in the age of abolition, 14–16 (apr. 27, 2020) (b.a. thesis, oberlin college). 2021] reimagining schools’ role 579 minority of them into foster care. to the extent cps agencies could provide effective assistance to the majority of these families, research demonstrates that the agencies largely miss the opportunity to do so.2 in the 1960s, pediatrician henry kempe’s article “the battered child syndrome”3 galvanized states to pass laws requiring individuals working with children to report suspected incidents of physical abuse. although kempe’s work focused on severe physical abuse that medical professionals could be trained to identify, mandated reporting statutes quickly suffered from scope creep, expanding to cover many more professionals, such as school personnel, and broad definitions of neglect. mandated reporting’s overbreadth problem is well-documented in decades’ worth of child maltreatment administrative data, highlighting that cps is overwhelmed with unsubstantiated allegations of maltreatment that, when investigated, harm children, families, and their communities. schools stand out for contributing to this failure more than any other group of mandatory reporters: they report more allegations to cps agencies than any other category of reporters, and schools’ reports are less likely to be substantiated or lead to services for children. the flawed policy of mandatory reporting has not led to cps agencies providing effective interventions to the vast majority of families subject to its investigations.4 moreover, it has failed to identify most of the actual child maltreatment that exists in communities. four iterations of the u.s. congress’s national incidence study demonstrate mandated reporting’s underreporting problem: “although cps investigates a substantial number of maltreated children in the nation, these children represent only the ‘tip of the iceberg.’”5 this mandatory reporting and cps investigation structure has for sixty years failed to achieve its core function and unnecessarily harmed families and communities, particularly families and communities of color disproportionately subject to the family regulation system. that failure has 2 see infra notes 35–36, 47. 3 see c. henry kempe et al., the battered child syndrome, 181 j. am. med. assoc. 17 (1962). 4 a full accounting of the harms of unnecessary cps interventions is beyond the scope of this article. we rely on prior work which has established those harms in details. see e.g. infra notes 35–36, 47 and accompanying text. 5 a.j. sedlak et. al, u.s. dep’t of health & hum. serv., admin. for child. & fam., fourth national incidence study of child abuse & neglect (nis–4), at 2-2 (2010). 580 colum. j. race & l. [vol. 11:575 incentivized schools and others to abdicate their moral responsibility to help children and families in need and instead created an adversarial relationship between schools and families. as such, the present cps system is yet another manifestation of our nation’s systemic racism, and public schools are complicit in that system. a more hopeful story is possible. schools can identify needs among children and families, and those needs largely can be addressed without cps involvement. schools can expand their use of social workers and counselors, and refer families to a range of voluntary supports and services, including public benefits, housing assistance, legal services, mental health care, and substance abuse treatment. schools already identify and respond to most of these needs, and dramatically expanding existing efforts can achieve what six decades of mandatory reporting and investigation have not—improving the welfare of children and families. ii. why focus on schools? public schools are an inextricable part of the family regulation system, accounting for the largest single source of referrals to cps agencies of allegations of child abuse and neglect.6 during 2018, school personnel were responsible for 20.5% of the 4.3 million child maltreatment reports received nationwide, nearly double the number of reports made by social services or medical personnel.7 although black children represent roughly 14% of the overall child population,8 26% of allegations of child maltreatment from school personnel concerned black children.9 the disproportionate reporting of 6 child.’s bureau, u.s. dep’t of health & hum. services, child maltreatment 2018, at 8–9 (2020), https://www.acf.hhs.gov/sites/default/ files/documents/cb/cm2018.pdf [https://perma.cc/569p-pwq9]. 7 id. 8 child population by race in the united states, kids count data center (sep. 2020), https://datacenter.kidscount.org/data/tables/103-childpopulation-by-race [https://perma.cc/n3ca-s6yp]. 9 child.’s bureau, u.s. dep’t of health & hum. services, national child abuse and neglect data system (ncands) child file, ffy 2018 (2019) [hereinafter 2018 ffy ncands dataset], https://www.ndacan.acf.hhs.gov/datasets/dataset-details.cfm?id=233 [https://perma.cc/le72-gsn9]. unless otherwise noted, data utilized in this article were made available by the national data archive on child abuse and neglect, cornell university, ithaca, new york. data from the national child abuse and neglect data system (ncands) are originally collected by state https://www.ndacan.acf.hhs.gov/datasets/dataset-details.cfm?id=233 2021] reimagining schools’ role 581 black children also cumulates across childhood; 53% of black children will be subject to a cps investigation before turning eighteen, compared to 37.5% of all children.10 of course, schools overreport and surveil black families in many contexts outside of cps. this section explores the intersection of schools and family regulation in those contexts, ultimately concluding that an expansive dissonance separates schools’ core, philosophical underpinnings from the modern operationalization of our public schools. a. public schools: the great equalizer or part of the carceral web? public schools serve students from the most vulnerable and historically marginalized communities. upon their inception, schools were poised to be the “great equalizer” where low-income families, people of color, immigrants, and those from other disenfranchised groups could gain access to opportunities and resources historically only available to individuals from non-minoritized groups.11 however, today’s schools, especially those in high needs and impoverished communities, are characterized by dismal student achievement rates, low graduation rates and standardized test scores, high rates of student truancy and drop-outs, large class sizes, and poorly child welfare agencies pursuant to federal reporting requirements. authors and collaborators at fostering court improvement have analyzed the data and analyses are on file with them. neither the collector of the original data, the archive, cornell university, or its agents or employees bear any responsibility for the analyses or interpretations presented here. data are reported for the federal fiscal year (ffy), which runs from october 1st in the preceding year through september 30th in the referenced year. 10 hyunil kim et al., lifetime prevalence of investigating child maltreatment among us children, 107 am. j. pub. health 274, 277 (2017). disproportionate reporting of black children by school personnel is consistent with other classes of reporters, such as law enforcement and medical professionals. id. however, unlike law enforcement and medical professionals, children interact with school personnel consistently and routinely, in a non-adversarial manner within their community. moreover, educational personnel make more cps referrals than law enforcement and medical professionals. 11 horace mann, twelfth annual report to the massachusetts board of education (1848), reprinted in the republic and the school: horace mann and the education of free men 79–80, 84–97 (lawrence a. cremin ed., 1957); pedro noguera, city schools and the american dream: reclaiming the promise of public education, at xii (2003). 582 colum. j. race & l. [vol. 11:575 trained or inexperienced teachers.12 often, the same schools experiencing these challenges further marginalize the students they serve by disproportionately exerting punitive and exclusionary discipline practices against low-income students of color, particularly black students.13 according to data available from the u.s. department of education’s office of civil rights, black children represent 15.2% of student enrollment nationally.14 however, black children missed a cumulative 4.6 million days of school due to suspensions, representing 41.9% of all suspension days.15 black children account for 28.7% of school referrals to law enforcement and 31.9% of school related arrests.16 even more, 32% of black children eligible for special education services under idea were referred to law enforcement, and black children with disabilities account for 35.3% of all school-related arrests of special education students.17 black children represent only 8.2% of children enrolled in a gifted and talented program18 and only 9.3% of children enrolled in at least one advanced placement course.19 such disparities begin young; one 2021 academic study found that, even after controlling for various predictors of behavior challenges, black elementary school children were 3.5 times as 12 see noguera, supra note 11. 13 erica r. meiners, ending the school-to-prison pipeline/building abolition futures, 43 urb. rev. 547, 550 (2011). 14 office of c.r., u.s. dep’t of educ., civil rights data collection (crdc) for the 2017–18 school year (2020), https://www.ed.gov/about/offices/list/ocr/docs/crdc-2017-18.html [https://perma.cc/pfk8-kdr8]. of the 96,533 schools listed in the crdc enrollment dataset, all but 11 schools provided student enrollment data by race. 15 id. at crdc suspensions file dataset. of the 97,632 schools listed in the crdc suspensions dataset, all but 1,938 schools provided suspension data by race. 16 id. at crdc referrals and arrests dataset. of the 97,632 schools listed in the crdc referrals and arrest dataset, as many as 4,776 (approx. 4.8%) schools did not provide complete referrals and arrest data. 17 id. 18 id. at crdc gifted and talented dataset. of the 97,632 schools listed in the crdc gifted and talented dataset, 41,794 (approx. 42%) schools did not provide gifted and talented data by race. 19 id. at crdc advanced placement dataset. of the 97,632 schools listed in the crdc advanced placement dataset, only 14,752 (approx. 15%) schools provided advanced placement data by race. 2021] reimagining schools’ role 583 likely as white children to receive a school detention or suspension.20 these inequities compound for black students in foster care.21 for example, within california, which has the largest population of youth in foster care in the nation,22 black foster youth are suspended, expelled, and placed in special education at higher rates than both their foster youth and non-foster youth peers of other races.23 the disproportionate suspension, expulsion, and special education placement of black foster youth in schools directly entraps them in what erica meiners describes as “less a pipeline, more a persistent nexus.”24 unlike the “school to prison pipeline” which describes the ways that youth of color are linearly funneled into systems of incarceration from schools’ overuse of punitive disciplinary practices, the nexus is made up of a “web of punitive threads,” whereby youth are tethered to systems that perpetuate racialized surveillance and imprisonment within the carceral state.25 20 matthew c. fadus et al., racial disparities in elementary school disciplinary actions: findings from the abcd study, j. am. acad. child & adolescent psychiatry (manuscript at 4) (forthcoming 2021) (on file with sciencedirect and available at https://doi.org/10.1016/j.jaac.2020.11.017 [https://perma.cc/jn34-bcfe]). 21 anne gregory et al., the achievement gap and the discipline gap: two sides of the same coin?, 39 educ. researcher 63 (2010); susan stone, child maltreatment, out-of-home placement & academic vulnerability: a fifteen-year review of evidence & future directions, 29 child. & youth servs. rev. 139, 146 (2007). 22 mark e. courtney et al., memo from calyouth: associations between county-level factors and youths’ extended foster care participation, chapin hall at the univ. of chi. (mar. 2019), https://co-invest.org/wpcontent/uploads/courtney-et-al.-2019-county-level-factors-and-youths-efcparticipation.pdf [https://perma.cc/j6yl-3pl9]. 23 cal. dep’t of educ., 2018–19 suspension rate: state report disaggregated by ethnicity (2020), https://dq.cde.ca.gov/dataquest/ dqcensus/dissusprate.aspx?cds=00&agglevel=state&year=201819&initrow=eth&ro=y [https://perma.cc/f3vs-ppwr]; cal. dep’t of educ., 2018–19 expulsion rate: state report disaggregated by ethnicity (2020), https://dq.cde.ca.gov/dataquest/dqcensus/disexprate.aspx? cds=00&agglevel=state&year=2018-19&initrow=eth&ro=y&ro=y [https://perma.cc/eg24-zmsr]; cal. dep’t of educ., count of matched foster students by race/ethnicity and grade: los angeles county report (2020), https://dq.cde.ca.gov/dataquest/foster/fostergrdrace.aspx? level=county&county=19&year=2018-19. 24 erica r. meiners, right to be hostile: schools, prisons, and the making of public enemies 31–32 (2007). 25 id. https://dq.cde.ca.gov/dataquest/foster/fostergrdrace.aspx?level=county&county=19&year=2018-19 https://dq.cde.ca.gov/dataquest/foster/fostergrdrace.aspx?level=county&county=19&year=2018-19 https://dq.cde.ca.gov/dataquest/foster/fostergrdrace.aspx?level=county&county=19&year=2018-19 584 colum. j. race & l. [vol. 11:575 for black children, public schools fall short of being the great equalizer. b. schools illustrate how this system is family regulation not child protection when schools call cps agencies, do schools help children, or work in tandem with the family regulation system to surveil and investigate disenfranchised families? what impact do cps reports have on children, families, and their communities? school personnel’s entanglement in the family regulation system is a particularly strong illustration of a broader reality: the family regulation system features tremendous over-reporting of families to cps agencies, with significant interference imposed upon and little or no benefits offered to these families. the family regulation system operates a massive apparatus to gather child abuse and neglect allegations, investigate those allegations, and determine how, if at all, to respond to substantiated allegations. cps agencies only substantiate a minority of maltreatment allegations and agencies remove children in an even smaller minority—5.3% of all investigated allegations.26 this reality raises significant questions about the wisdom and effectiveness of our existing system.27 decades of administrative child welfare data support this narrative. during the 2018 federal fiscal year (ffy), cps agencies received referrals of suspected child abuse or neglect regarding 7.8 million children, or 12.9% of the nation’s child population.28 low-income and black families are significantly overrepresented among those subject to these referrals.29 cps agencies screened out 36% of all referrals, meaning even if the allegations were true, they would not meet the state’s statutory definition of abuse or neglect.30 of the remaining referrals, affecting about 4.3 million children, cps agencies assigned about 26 2018 ffy ncands dataset, supra note 9. 27 see josh gupta-kagan, towards a public health legal structure for child welfare, 92 neb. l. rev. 897 (2014). 28 child maltreatment 2018, supra note 7, at 7–8. there were 4.3 million referrals, each involving an average of 1.8 children. id. that figure is used throughout this section to calculate the number of children at each stage. 29 see supra notes 8–10. 30 child maltreatment 2018, supra note 7, at 6–7. 2021] reimagining schools’ role 585 14% to a differential or alternative response track.31 the remainder were investigated to determine whether the child is a victim. agencies substantiated only 23% of investigated reports, meaning cps investigated nearly 2.4 million children in 2018 that they either concluded were not victims or were unable to gather sufficient evidence to make such a determination.32 of these children deemed victims, about 39% (more than 270,000) receive no services after the cps investigation.33 the remaining receive some kind of service from cps, and for about 22.9% of victims, that “service” included a removal from their families and placement in foster care.34 cps interferes in the lives of millions of children each year on the basis of a single person referring their suspicion to cps, and the vast majority of hotline calls lead to no provision of services. by the system’s own logic, then, most reports do relatively little to protect children. and they do little to assist families; a longitudinal study of families reported to cps agencies found that cps intervention made no difference in families’ social support, family functioning, poverty, maternal education, or child behavior, leading researchers to describe it as a “missed opportunity” to help families.35 commentators, accordingly, have advocated that it is time “to rethink the role of mandatory reporting,” reducing the volume of reports and the unnecessary intervention most reports cause.36 that conclusion is even stronger for cps hotline calls from schools. at every stage of the process, allegations from schools are less likely to protect children. first, reports from 31 id. at 19. alternative response tracks are typically used for low or moderate risk reports; they emphasize assessment of and offers of services to address a family’s needs rather than making a formal determination of whether maltreatment occurred. 32 2018 ffy ncands dataset, supra note 9. 33 child maltreatment 2018, supra note 7, at 78. 34 id. at 80. 35 kristine campbell et al., household, family and child risk factors after an investigation for suspected child maltreatment: a missed opportunity for prevention, 164 archives of pediatric adolescent med. 943, 948 (2010). 36 mical raz, calling child protective services is a form of community policing that should be used appropriately: time to engage mandatory reporters as to the harmful effects of unnecessary reports, child. & youth servs. rev., jan. 2020, at 4 [hereinafter raz, calling cps]. see also abraham b. bergman, child protective services has outlived its usefulness, 164 archives pediatric adolescent med. 978, 978–79 (2010) (arguing voluntary services should replace many cps investigations). 586 colum. j. race & l. [vol. 11:575 schools are significantly less likely than both other professionals’ reports and non-professionals’ reports to allege abuse or neglect.37 that describes 17% of all screened in reports from education sources, compared with 12% for reports from medical and social service staff, 9% for legal and law enforcement, 6.9% for family friends, and 5.6% for anonymous reports.38 second, cps agencies are more likely to assign reports from schools to an alternative response track, indicating those reports contain less severe allegations—14% for reports from schools compared with 9.6% for medical and social service reports, and 9.4% for legal and law enforcement reports.39 on this measure, reports from schools are on par with those from family or friends (14%) and anonymous sources (15%)40—two classes of reporters presumably with no formal training in the identification of child maltreatment. third, when cps agencies investigate child maltreatment reports from schools, agencies substantiate significantly fewer cases than reports from other sources. cps agencies conclude that only 15% of children reported by schools and subject to an investigation are actually victims of abuse or neglect.41 that compares to 27% for medical and social service personnel reports and 39% for legal and law enforcement reports.42 substantiation rates for reports from school are on par 37 2018 ffy ncands dataset, supra note 9; functionally, this conclusion operates like a decision by a cps agency to screen out a referral. ncands does not report screened out cases, so we cannot compare those. we discuss data based on an analysis of referrals which cps agencies have screened in but subsequently determine do not allege abuse or neglect, something which is equivalent to a screen out and which more frequently occurs for reports from schools than from other sources. 38 id. these results hold, albeit with tighter variance, when reports are limited to school-age children: 15% are screened out for failing to report any maltreatment, compared with 14% for medical and social service sources, 11% for legal and law enforcement sources, 7.4% for family friends, and 6.1% for anonymous sources. 39 id. the gap for school-age children is roughly similar: 15% of reports from schools are assigned to an alternative response track, compared with 11% from medical and social service sources and 9.9% of legal and law enforcement sources. 40 id. 41 id. 42 id. 2021] reimagining schools’ role 587 with those from family friends (15%) and anonymous sources (13%).43 school personnel’s child maltreatment allegations concerning black children are especially unlikely to be substantiated. only 11% of education personnel’s maltreatment allegations concerning black children are substantiated, compared to 22% from medical reporters and 30% from law enforcement.44 this substantiation rate is the same for reports from family and friends.45 fourth, when cps agencies investigate and substantiate reports from schools, cps is less likely to remove children from their families and place them in foster care than when the reports are from other sources. cps agencies remove only 16% of victims reported by schools, compared with 24% for medical and social service reports and 18% for legal and law enforcement reports. 43 id. multiple studies have similarly discussed low substantiation rates from school reports. as chapin hall concluded, “[e]ducation personnel report the most cases of suspected maltreatment, but detect the smallest percentage of cases that reach the threshold for substantiation.” dana weiner et al., chapin hall at the univ. of chi., chapin hall issue brief: covid19 and child welfare: using data to understand trends in maltreatment and response 2 (2020), https://www.chapinhall.org/wpcontent/uploads/covid-and-child-welfare-brief.pdf [https://perma.cc/3ll8yyvj]. chapin hall’s reported substantiation rates are lower than those we report in the text because we have removed screened-in reports coded as not reporting any form of maltreatment from the denominator. see also, bryn king et al., examining the evidence: reporter identity, allegation type, and sociodemographic characteristics as predictors of maltreatment substantiation, 18 child maltreatment 232 (2013). 14% of education staff reports are substantiated compared to 41% from law enforcement, 38% from medical professionals, and 35% from public social service agencies. john kesner, child protection in the united states: an examination of mandated reporting of child maltreatment, 1 child indicators rsch. 397 (2008); diana j. english et al., causes and consequences of the substantiation decision in washington state child protective services, 24 child. & youth servs. rev. 817 (2002); john e. kesner & margaret robinson, teachers as mandated reporters of child maltreatment: comparison with legal, medical, and social services reporters, 42 child. & schools 222, 227 (2002). 44 2018 ffy ncands dataset, supra note 9. for reports from medical personnel and social services, 75% of screened-in reports were investigated, and 73% of investigations were unsubstantiated. id. for reports coming from legal sources and law enforcement, 79% of screened-in reports were investigated, and 61% of investigations were unsubstantiated. id. for reports from family and friends, 77% were investigated, and 85% were unsubstantiated. id. 45 id. https://www.chapinhall.org/wp-content/uploads/covid-and-child-welfare-brief.pdf https://www.chapinhall.org/wp-content/uploads/covid-and-child-welfare-brief.pdf 588 colum. j. race & l. [vol. 11:575 this figure is lower than reports from family and friends (21%) and anonymous (23%) reports. altogether, cps referrals from schools are particularly unlikely to lead to protective action by cps. only 10% of all children reported to cps agencies by schools are confirmed victims, and only 1.7% of all children reported to cps by schools are removed from their homes. while schools account for more than 20% of all child abuse or neglect allegations, those allegations account for only 12% of total removals.46 these data raise serious questions about schools’ role in this reporting and investigation apparatus. that apparatus mostly harms the children and families the system is designed to protect through unnecessary coercive interventions that do little to actually protect children or improve their family situations. these coercive interventions are themselves harmful to children and families, including scaring children and parents through cps agency investigation and missing opportunities to help families.47 these harms result from our mandatory reporting and mandatory investigation legal structure which incentivizes professionals to, quite literally, phone it in when they have concerns about children’s safety or families’ needs for supportive services. in doing so, school staff usually forego opportunities to identify supports for a family directly, abdicating the responsibility to help the family to an adversarial, parental faultbased cps agency that is unlikely to provide much assistance.48 such blithe reporting practices harm the family’s trust in the school and thus the school’s ability to help in the future.49 the harm of cps investigations also extends to the communities in which families live. children and families most often subject to cps investigations are tightly clustered in small, 46 id. 47 michael s. wald, taking the wrong message: the legacy of the identification of the battered child syndrome, in c. henry kempe: a 50 year legacy to the field of child abuse and neglect 89, 95–96 (richard d. krugman & jill e. korbin eds., 2013). 48 see gary b. melton, mandatory reporting: a policy without reason, 29 child abuse & neglect 9, 14 (2005) (collecting research showing many mandatory reporters consider whether to call a cps hotline but do not offer additional services to a family); gupta-kagan, supra note 27, at 934–35. 49 raz, calling cps, supra note 36; natalie k. worley & gary melton, mandated reporting laws and child maltreatment: the evolution of a flawed policy response, in c. henry kempe, supra note 47, at 103, 104–105. 2021] reimagining schools’ role 589 deeply impoverished and segregated neighborhoods, neighborhoods replete with environmental risk. consider the thomasville heights neighborhood in atlanta, georgia. a single census block group in this neighborhood epitomizes the downstream effects of public policies that have deliberately concentrated minority families in adverse community environments. according to census estimates,50 the 2,272 people who live in this block group are: 98% black (compared to 32% statewide and 13% nationwide), 91% single mother families (compared to 28% statewide and 23% nationwide), 36% are unemployed (compared to 6% statewide and nationwide), 71% are living in poverty (compared to 17% statewide and 15% nationwide), and where the housing cost burden is 38% (compared to 28% statewide and nationwide).51 the impact of public policies such as redlining, the war on drugs, and welfare reform are compounded by the impact of mandated reporting and resulting surveillance by cps that has resulted in the concentration of black families residing in adverse community environments.52 this tightly-clustered concentration of cps activity, particularly unsubstantiated investigations, is a form of community disruption under color of state law. the current mandatory reporting system gives the disruption cover, shielding professionals from any responsibility for harming communities 50 u.s. census bureau, american community survey 2014–2018 5year data (2019), https://www.census.gov/newsroom/press-kits/2019/acs-5year.html [https://perma.cc/hvd7-tv6w]. 51 community opportunity map, casey fam. programs, https://caseyfamily.caimaps.info/cailive (last visited may 1, 2021). authors used the “search and select” feature to navigate to atlanta, ga and then used the “custom area select” tool to explore the referenced neighborhood. referenced data are on file with corresponding author. 52 proof of this claim is beyond the scope of this paper. however, one author (church) has street address level data for ncands from a number of state cps agencies, pursuant to institutional data sharing agreements. consider one such county (not otherwise discussed in this paper) with a population of approximately 140k. the u.s. census bureau has defined 11,415 block groups for that county. using 2018 ffy ncands data, only 5.8% of block groups in the county contained a child or children that were the subject of a cps investigation. only 2.3% of block groups in the county contained a child or children that were the subject of a substantiated investigation. by contrast, 35.5% of block groups contained children living in poverty and 28.6% contained children living in households with no employed parent. cps reports are relatively rare events, but rare events that appear to be spatially concentrated. https://caseyfamily.caimaps.info/cailive 590 colum. j. race & l. [vol. 11:575 in which they overreport concerns about disenfranchised families. iii. cps agencies are usually not and should never be the gateway to services mandated reporters, including educational personnel, overwhelm the system with marginal cases that should not require cps investigation and intervention.53 presumably, these reports result from well-meaning professionals’ assessment of a child in danger or family in need of support. indeed, a study conducted by kelley fong noted that many “professional reporters” see a report to cps as a means for accessing support or services for families in need.54 this section explains why cps is ill-equipped to provide such support effectively, and thus why schools’ reports to cps require reevaluation. a. the mismatch between family needs and cps agency focus there is a mismatch between what the law requires cps agencies to do and the broader needs that reporters seek to address. mandatory reporting is focused on identifying discrete allegations of child maltreatment tied to parental fault; without such a finding, there is no legal basis for coercive state intervention in families. but, much of the support families need results not from intentional acts of parental abuse or neglect but from chronic conditions and assorted adverse childhood experiences (of both parents and children), which often cannot, and should not, be tied to parental fitness. adverse childhood experiences and other childhood traumas are compounded when they occur in oppressed communities that experience a concentration or chronicity of poverty, violence, racism, or other environmental conditions.55 the relationship between adversity within a family and adversity within a community is well known, but cps agencies’ treatment of such conditions is wholly disconnected. cps agencies respond to family adversity—such as 53 see supra part ii.b; worley & melton, supra note 49, at 106. 54 kelley fong, getting eyes in the home: child protective services investigations and state surveillance of family life, 85 amer. soc. rev. 610, 620–21 (2020). 55 wendy ellis & william dietz, a new framework for addressing adverse child and community experiences: the building community resilience model, 17 acad. pediatrics 7 (2017). 2021] reimagining schools’ role 591 parental substance abuse, domestic violence, or housing instability—as parental fault. however, the roots of these family adversities are steeped in systemic inequities that create generational community adversity.56 consider thomasville heights, discussed above. there is little doubt that a child living in such less-than-ideal circumstances would benefit from some kind of intervention. however, child welfare staff, policy makers, and courts routinely fail to consider the conditions that caused such less-than-ideal circumstances. school personnel, like other mandated reporters, report adverse childhood experiences while ignoring the adverse community environments that played a role in producing them. cps investigators remain indifferent to those community conditions because the law requires them to identify a perpetrator who can be held responsible for a substantiated allegation, not a complete set of factors contributing to challenging childhood circumstances.57 this focus on parental fault while ignoring community adversity is apparent in many common cps contexts. consider housing cases, where the power imbalance between landlord and tenants heavily favors the former, dwarfing the ability of low-income tenants to enforce their legal rights. moreover, a troubling history of governmental housing policies has deeply segregated our nation into the adverse community environments described above.58 yet when cps investigates children living in unsuitable housing, their charge is to try to substantiate the allegations by identifying a perpetrator that is responsible for the child’s welfare, or more directly, a parent that can be blamed for the unsuitable housing. domestic violence cases also fit the narrative. often in child welfare cases, the perpetrator of domestic violence is not the child’s caretaker. however, to intervene, cps needs to frame the domestic violence issue as one of parental fault, which they do by accusing the victim of domestic violence of failing to protect his or her (usually her) 56 id. 57 see, e.g., mical raz, abusive policies: how the american child welfare system lost its way 5 (2020) (describing a system that “willfully ignores social and racial inequities, instead focusing myopically on the role of the individual”). 58 see, e.g., richard rothstein, the color of law: a forgotten history of how our government segregated america (1997). 592 colum. j. race & l. [vol. 11:575 child.59 sadly, this occurs in cases where the caretaker has independently done much to protect their child.60 in the many contexts where an adverse childhood experience has little to do with intentional parental conduct, such as witnessing domestic violence or living in unsuitable housing, a fault-based investigative response falls short. as we discuss below, alternatives such as referring a family to a supportive service or legal aid lawyer would yield better results. however, outside of alternative or differential response, cps will often only provide services after an investigation is substantiated, making a cps investigation a prerequisite for support and establishing an adversarial relationship with families. even more, this interaction creates a legal record to be forever invoked as an indictment of the parent’s fitness, stigmatizing families who may need support to overcome family and/or community adversity. b. false perceptions of accessing services through cps agencies this false perception of the family regulation system serving as a support to families is inconsistent with the historically documented harm, surveillance, punishment, and policing experienced by families entangled within the system.61 it also ignores the reality that families and professionals can access services without cps involvement. incorrect assumptions of the system’s interactions with vulnerable families often ensnare them in a web of coercion and surveillance, one from which it is difficult to detach.62 following a report to cps agencies and substantiated investigation, cps agencies or family courts often require families to complete services such as therapy, parenting classes, drug treatment, and 59 see, e.g., nicholson v. scoppetta, 820 n.e.2d 840 (n.y. 2004). 60 eli hager, the hidden trauma of “short stays” in foster care, marshall project (feb. 11, 2020), https://www.themarshallproject.org/2020/02/11/the-hidden-trauma-of-shortstays-in-foster-care [https://perma.cc/p42j-cwcp]. 61 dorothy roberts, shattered bonds: the color of child welfare (2002). 62 fong, supra note 54, at 620. 2021] reimagining schools’ role 593 domestic violence classes as a part of their service plan.63 many families and mandated reporters call cps with the express purpose of accessing such services.64 in reality, access to these services and supports is not predicated on the forced engagement with cps and can easily be obtained from community organizations. these services are often free or low cost and could be accessed by the families directly or by direct referrals from schools and other community-based agencies. indeed, for the most frequent services from which families may benefit—mental health and substance abuse treatment—cps need not be involved. these services are available through mental health and substance abuse agencies and funded through medicaid.65 unnecessary cps agency involvement only serves to risk negatively impacting the provider’s engagement with the family.66 c. narrow cases when cps has a monopoly on services and the risk that monopoly may grow while most services that cps agencies insist families participate in do not actually require cps involvement, some discrete services currently require families to be referred to cps. this requirement flows not from anything inherent in these services, but from flawed public policy requiring cps involvement as a prerequisite to access services, creating perverse incentives to overreport families to the family regulation system. consider access to safe and affordable housing—an endemic problem for low-income families in america.67 in 2018, 63 amy c. d’andrade, parents and court-ordered services: a descriptive study of service use in child welfare reunification, 96 fams. soc’y 25 (2018). 64 see fong, supra note 54. 65 indeed, “medicaid is the single largest payer for mental health services in the united states and is increasingly playing a larger role in the reimbursement of substance use disorder services.” behavioral health services, ctrs. for medicare & medicaid servs., https://www.medicaid.gov/medicaid/benefits/behavioral-healthservices/index.html [https://perma.cc/2jmz-y8b7] (last visited jan. 6, 2021). 66 j.d. berrick et al., partnering with parents: promising approaches to improve reunification outcomes for children in foster care, 11 j. fam. strengths 1, 1–13 (2018). 67 see, e.g., matthew desmond, evicted: poverty and profit in the american city (2016). https://www.medicaid.gov/medicaid/benefits/behavioral-health-services/index.html https://www.medicaid.gov/medicaid/benefits/behavioral-health-services/index.html 594 colum. j. race & l. [vol. 11:575 child welfare agencies reported removing more than 25,000 children from their parents due in part to inadequate housing.68 recognizing that access to housing for families at risk of cps involvement can prevent such unnecessary removals, the federal government’s family unification program (fup) provides priority access to a housing choice voucher for families that are at risk of foster care due to inadequate housing.69 the federal government’s own research has documented that the fup and other housing subsidies result in fewer school disruptions and child behavior problems, less adult alcohol and drug problems and psychological distress, and significantly reduced intimate partner violence.70 however, such housing services are “extremely scarce”71 and cps agencies exclusively control access to the fup vouchers which do exist. by federal law, cps agencies are gatekeepers for these scarce resources and must certify that the “lack of adequate housing is a primary factor in the imminent placement of the family’s child or children in out-of-home care”72 while collaborating with public housing agencies to identify eligible families.73 consider this legal structure from the point of view of a school. a school social worker learns that a family has been evicted and is moving from place to place.74 the social worker wants to help the family access housing options and knows the local housing agency just received a grant for fup vouchers.75 68 2018 ffy ncands dataset, supra note 9. see also ruth white, understanding the nexus of child welfare and housing in america, in the impact of housing and homelessness on child well-being 4 (traci laliberte et al. eds., 2017), https://www.cascw.org/wp-content/uploads/ 2017/04/cw360_spring2017_web508.pdf [https://perma.cc/9s56-j2qf]. 69 see 42 u.s.c. § 1437(a)(1). 70 see office of pol’y dev. & rsch., u.s. dep’t of hous. & urb. dev., family options study: 3-year impacts of housing and services interventions for homeless families (2016), https://www.huduser.gov/portal/sites/default/files/pdf/family-options-studyfull-report.pdf [https://perma.cc/net3-55mp]. 71 tina lee, catching a case: inequality and fear in new york city’s child welfare system 13 (2016). 72 see 42 u.s.c. § 1437(a)(2). 73 see 42 u.s.c. § 1437(a)(4). 74 variations on the basic fact pattern may apply. for instance, the parent may rely on an abusive partner for housing due to a lack of alternative housing options, but housing instability remains the central problem. 75 there is limited funding, and local jurisdictions must apply for fup vouchers. u.s. dep’t of hous. & urb. dev., 2019 family unification program notice of funding availability (2019), 2021] reimagining schools’ role 595 the social worker cannot simply call the housing agency and explain how the children are at risk of harm due to housing instability. rather, she must report the family to the cps agency and hope that it will not only identify the housing need, but declare the children at imminent risk of foster care. the latter also requires cps to identify the child’s parent as being at fault for such imminent risk. such a report to cps comes with the risk that cps agencies will do nothing, respond too coercively to it, or respond but fail to provide access to a fup voucher. the family unification program is only one example. some federal funds for “family preservation” services run through state cps agencies.76 state and local cps agencies provide their own set of services not accessible elsewhere, and some states even codify this role for cps agencies in statute.77 we do not attempt a full listing of supports and services which are provided by and must be accessed through cps agencies; that task is beyond the scope of this article. our point is to show that cps agencies have a monopoly over accessing certain services, and that monopoly precludes other entities—like schools—from helping families access such services directly. the most recent federal funding reform exacerbates these problems. the family first prevention and services act (ffpsa) explicitly seeks to incentivize states to spend money to prevent removing children from their parents to foster care, and thus shift spending from maintaining children in foster care to serving children in their families.78 this shift is welcome, but it also risks expanding cps agencies’ control over services provided to families. congress could have funded agencies distinct from cps to provide essential services, but instead, it tied funding for evidence-based prevention services to cps agencies and families https://www.hud.gov/sites/dfiles/spm/documents/2019_fup_nofa_fr-6300n-41.pdf [https://perma.cc/lr55-ts9f]. 76 title iv-b of the social security act provides a modest amount of such funds. 42 u.s.c. §§ 621–629h. “family preservation services” are defined in § 629a(a)(1). 77 see, e.g., d.c. code §§ 4-1303.01a(7), 4-1303.03(a)(13) (2020). 78 see, e.g., family first prevention services act, nat’l council state legislatures (april 1, 2020), https://www.ncsl.org/research/humanservices/family-first-prevention-services-act-ffpsa.aspx [https://perma.cc/qm9m-5vzr] (describing family first as encouraging states to “develop prevention-focused-infrastructure” and permitting states to use federal title iv-e funds to support services to help children remain with their families). https://www.hud.gov/sites/dfiles/spm/documents/2019_fup_nofa_fr-6300-n-41.pdf https://www.hud.gov/sites/dfiles/spm/documents/2019_fup_nofa_fr-6300-n-41.pdf https://www.ncsl.org/research/human-services/family-first-prevention-services-act-ffpsa.aspx https://www.ncsl.org/research/human-services/family-first-prevention-services-act-ffpsa.aspx 596 colum. j. race & l. [vol. 11:575 reported to cps agencies. ffpsa not only funnels prevention money through cps agencies, but requires those agencies to identify children as “candidate[s] for foster care,” defined as “being at imminent risk of entering foster care . . . but who can remain safely” out of foster care with the help of certain prevention services.79 ffpsa funds can be used for specific services deemed to have some significant evidence base. so far, the federal government has certified several such services, including certain mental health and substance abuse treatments, as “well-supported,” “supported,” or “promising.”80 notably, there is nothing specific to these services that should require cps agencies to refer families to them; they should be medicaideligible services open to families referred by themselves or any professional that knows them. again, consider this legal structure from a school’s perspective. if a school becomes aware of significant child misbehavior and substance abuse, and has concerns about the effectiveness of a parent’s response to these issues, it could reasonably refer the family for functional family therapy, a family-based intervention found to achieve positive results responding to those issues.81 ffpsa structurally incentivizes cps agencies to become an access point for this service. consequently, this encourages schools to refer the family to cps, which will presumably investigate and determine if the child is a candidate for foster care, rather than refer the family directly to services. while we applaud ffpsa for directing funding to such services, we question why, in cases like this, schools should be pushed to use cps agencies as a middleman and not pushed to refer families directly to family first providers. 79 42 u.s.c. §§ 675(13), 671(e). 80 find a program or service, title iv-e prevention servs. clearinghouse, https://preventionservices.abtsites.com/program?combine_1= &prograting%5b1%5d=1&prograting%5b2%5d=2&prograting%5b3%5d=3&p age=0 [https://perma.cc/sk5h-wybc] (last visited may 1, 2021). a complete list is available by filtering for “well-supported,” “supported,” and “promising” programs. 81 id. https://preventionservices.abtsites.com/program?combine_1=&prograting%5b1%5d=1&prograting%5b2%5d=2&prograting%5b3%5d=3&page=0 https://preventionservices.abtsites.com/program?combine_1=&prograting%5b1%5d=1&prograting%5b2%5d=2&prograting%5b3%5d=3&page=0 https://preventionservices.abtsites.com/program?combine_1=&prograting%5b1%5d=1&prograting%5b2%5d=2&prograting%5b3%5d=3&page=0 https://preventionservices.abtsites.com/program?combine_1=&prograting%5b1%5d=1&prograting%5b2%5d=2&prograting%5b3%5d=3&page=0 2021] reimagining schools’ role 597 iv. an alternative vision: schools serving families apart from cps agencies and the family regulation system the preceding sections support a demand for a new vision: cps agencies certainly have an important role in responding to severe allegations of abuse and neglect where children are at imminent risk, but their forced foray into investigating and overseeing families living in abject poverty is misplaced. to address adverse childhood experiences that manifest in adverse community environments, public schools must have the autonomy and purpose to serve families outside the family regulation system. the autonomy that schools need to serve children outside the family regulation system may require legislative and policy changes. schools need access to the important services and funding streams currently monopolized by cps, or the ability to refer families directly to such services without using cps.82 mandated reporting statutes need to be limited; education personnel should report severe child maltreatment when state coercion is needed to protect children, but the majority of other reports need not go to cps.83 definitions of maltreatment, particularly neglect, may need to be revisited to disentangle adverse childhood experiences, adverse community environments, and other social concerns from intentional and willful conduct by parents.84 freedom from legal mandates to involve cps will permit schools to reimagine their role in supporting families. already, research demonstrates that reporters call cps out of a desire to help families, not only because the law requires them to do so.85 thus, when that desire to help families can be satisfied without calling cps, reporters should have no difficulty transitioning to this alternative vision, which we discuss more fully below. 82 see supra part iii.b–c. 83 see, e.g., raz, calling cps, supra note 36; abraham bergman, a pediatrician’s perspective on child protection, in c. henry kempe, supra note 47, at 63, 63–69 (2013); wald, supra note 47; worley & melton, supra note 49. 84 see josh gupta-kagan, finally time for realistic and determinate standards in family court, 68 juv. & fam. ct. j. 31 (2017). 85 fong, supra note 54, at 620. 598 colum. j. race & l. [vol. 11:575 a. losing coercion over families building a stronger structure for schools to provide or refer services and supports directly to families, rather than forcing schools to work through cps agencies, would circumvent cps agencies’ coercive authority over families. reduced coercion is a feature of the alternative vision discussed herein, as it empowers parents to use the services and supports they desire, and increases their opportunities to do so. avoiding schoolinduced cps agency coercion also promotes schools and families working effectively together. finally, it reflects a recognition of cps agencies‘ primary tool—not new services, but coercion. as one school social worker remarked, “[when cps is involved,] i think parents either hear it differently or out of nervousness and fear of ‘what if i don’t accept this service?’”86 this admission—that reporters who call cps agencies are at least conscious of those agencies’ coercive power—raises a range of concerns. it requires a subjective judgment that a family is obstinately refusing to comply with the school’s recommendations—rather than legitimately disagreeing with those recommendations or facing obstacles to following them— and that exercising coercive power will lead to positive outcomes. it raises concerns that implicit bias in such judgments will contribute to racial and other disparities in reporting. indeed, many cps social workers express negative opinions of black families;87 a similar risk likely applies to school personnel. we recognize that coercion is sometimes—albeit rarely— necessary to protect children from maltreatment: in those cases, reports to cps are necessary and appropriate. however, reports to cps simply to link families to voluntary services are unnecessary and inappropriate. only when a professional or mandated reporter has suspicion of severe risk to a child should they report their suspicion to cps. we simultaneously recognize that even this alternative vision will raise concerns that any school-based services or referrals would come with too much surveillance and coercion. we respond in several ways. first, whatever coercive authority schools have over families is less than that of cps agencies; that 86 id. at 621. 87 dorothy e. roberts, prison, foster care, and the systemic punishment of black mothers, 59 ucla l. rev. 1474 (2011). 2021] reimagining schools’ role 599 is why advocates for reforming the family regulation system call for investing in services through agencies separate from cps.88 second, we recommend enacting these changes in the context of broader reforms which would limit the scope of cps agency authority, such as narrowed definitions of abuse and neglect, narrowed mandatory reporting and mandatory investigation laws, and strengthened legal protections against unnecessary removals. such reforms would limit the threat that schools would call cps agencies to more severe cases. third, we emphasize that many of the service referrals described below involve referrals to outside entities that would not have a duty to report families’ confidential data to schools. fourth, as described below, many of the individuals who schools could hire to interact with parents could be parents’ peers and other community members. b. linking children and families to services—without cps when schools (and other reporters) use cps to refer families to services, reporters and cps risk a loss of trust and engagement with the family. cps inherently has a “dual role”— surveillance and assistance89—and the former can undermine its effectiveness at the latter.90 reforms to the family regulation system should establish new pathways to access resources without requiring cps; the more cps agencies are limited to cases where coercive authority is necessary to protect children, the more the family regulation system’s scope will shrink, leaving space for a new child and family well-being system to emerge. schools provide fertile ground for such a child and family well-being system. this section outlines how schools can identify families’ needs for public benefits, legal services, and mental health care, and how reorienting resources away from cps agencies supports such a system. 1. public benefits schools know which children and families require income supports and other forms of public benefits, and they can also 88 see, e.g., parents to city council: fund communities, not acs, rise mag. (nov. 3, 2020), https://www.risemagazine.org/2020/11/fund-communitiesnot-acs [https://perma.cc/7sv2-atwm]. 89 lee, supra note 71, at 89. 90 lucas a. gerber et al., understanding the effects of an interdisciplinary approach to parental representation in child welfare, 116 child. & youth serv. rev. 116, 125 (2020). 600 colum. j. race & l. [vol. 11:575 take on the administration of public benefits to which families may be entitled. schools already manage financial eligibility for programs under the richard b. russell national school lunch act.91 schools already know92 which children are homeless (broadly defined93) and must provide them with transportation to continue attending their home school94 and with a “coordinated system” to help children and parents exercise their legal rights under the mckinney-vento homeless assistance act.95 schools need not stop there. they could assist families with applying and accessing other government financial benefits96 like supplementary nutrition assistance program (snap), temporary aid to needy families (tanf), medicaid, supplemental security income (ssi), and housing assistance. these services should not require involvement with the cps agency. where the law requires cps involvement—as with the family unification program described in part iii.c—the law should change to permit a more direct and less coercive path to that assistance. 2. legal services referrals helping families obtain public benefits is important, but when a child is wrongfully denied social security disability benefits, when a landlord refuses to make repairs, or when the family encounters a range of other challenges, the family may benefit from and desire legal assistance. legal assistance can address many of the underlying conditions that currently lead to cps agency involvement, and thus can help prevent the need for such involvement, a point the federal children’s bureau recently 91 school lunch programs act, 42 u.s.c. §§ 1751–1769j. 92 state education agencies report some of these data. see, e.g., new data show number of nyc students who are homeless topped 100,000 for fifth consecutive year, advoc. for child. n.y., (dec. 3, 2020), https://www.advocatesforchildren.org/node/1675 [https://perma.cc/lw3wmj7k] (using state education department data to document number of homeless students). 93 the legal definition is broad enough to include anyone doubling up with friends or family after an eviction. 42 u.s.c. § 11434a(2). 94 42 u.s.c. § 11432(e)(3)(c). 95 42 u.s.c. § 11432(e)(3)(e)(i). 96 the examples used in this section are governmental benefits. however, the same reasoning applies to schools connecting families with community resources and organizations that have additional support to promote the social determinants of health. https://www.advocatesforchildren.org/node/1675 2021] reimagining schools’ role 601 emphasized.97 schools should establish relationships with legal aid organizations so families may have access to preventative legal advocacy. the subject matter of preventative legal advocacy is the bread and butter of poverty law practice, helping parents defend against an eviction or take action against a landlord to improve housing conditions, obtain or maintain public benefits, obtain legal protection against an abusive partner, arrange for temporary care of a child while the parent is away for inpatient drug treatment, a military deployment, incarceration, or other reasons.98 these legal needs make up america’s well-documented “justice gap”—the inadequate or unavailable legal assistance for the millions of low-income families who encounter these or similar civil legal problems.99 school partnerships with legal services organizations can help fill that gap when legal needs affect children, and schools can identify and refer families who likely need legal services. this proposal echoes what medical providers do in medical-legal partnerships; medical personnel and social workers in their clinics or hospitals identify families who face some legal obstacle to improved health, such as poor housing conditions or access to 97 admin. for child. & fams., u.s. dep’t of health & hum. servs., civil legal advocacy to promote child and family well-being, address the social determinates of health, and enhance community resilience (2021) [hereinafter civil legal advocacy]. 98 see vivek s. sankaran & martha l. raimon, u. mich. l. sch. scholarship repository ctr. case closed: addressing unmet legal needs & stabilizing families, 2 (2014), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1085&context=oth er [https://perma.cc/7h8v-fp2r] (noting several common fact patterns for legal services). see also am. acad. of arts & sci., civil justice for all: a report and recommendations from the making justice accessible initiative 30 (2020) [hereinafter civil justice for all], https://www.amacad.org/sites/default/files/publication/downloads/2020-civiljustice-for-all_0.pdf [https://perma.cc/ee2t-felc] (noting family and housing law as accounting for 60% of all problems addressed by legal services corporation-funded legal services organizations). 99 legal servs. corp., the justice gap: measuring the unmet civil legal needs of low-income americans (2017), https://www.lsc.gov/sites/default/files/images/thejusticegap-fullreport.pdf [https://perma.cc/2b2v-u973]. see also, e.g., u.s. dep’t of just., civil legal aid 101, at 2 (2018), https://www.justice.gov/lair/file/828346/download [https://perma.cc/cbv4-mmxd] (reporting that a majority of low-income americans seeking free civil legal aid “are turned away because of the limited resources available”). https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1085&context=other https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1085&context=other https://www.amacad.org/sites/default/files/publication/downloads/2020-civil-justice-for-all_0.pdf https://www.amacad.org/sites/default/files/publication/downloads/2020-civil-justice-for-all_0.pdf https://www.lsc.gov/sites/default/files/images/thejusticegap-fullreport.pdf https://www.justice.gov/lair/file/828346/download 602 colum. j. race & l. [vol. 11:575 public benefits, and refer the family to a legal services provider. some have identified such partnerships as mechanisms to keep children and families from being perceived as needing cps involvement.100 schools (and especially school social workers) can similarly flag potential clients for legal services organizations. just as medical-legal partnerships feature formal agreements between medical clinics and legal services providers, schools and legal services providers would need to reach agreements. indeed, the american academy of arts and sciences recently recommended that legal services organizations partner with a variety of entities, including “educational institutions,” building off the medical-legal partnership model, to address the yawning access-to-justice gap in this country.101 others have identified school-based legal services as a tool to fight against the school-toprison pipeline.102 such a structure would not be without some tension. families might have claims against the school district in school disciplinary or special education matters, so schools might question whether referring families to lawyers could conflict with the school’s interests. that tension is real, but resolvable. patients may have medical malpractice claims against medical clinics, yet medical-legal partnerships have thrived. family defenders providing pre-petition representation to parents investigated by cps agencies for abuse and neglect have built-in tension with those agencies in every case, yet frequently agencies refer families for such representation, and pre-petition representation is an important and expanding practice.103 if those models can overcome tension between partners, the same can occur with school-legal partnerships, and a new pathway to legal services can be built to provide services to keep children safe and away from cps agencies. 100 kara r. finck, medical legal partnerships and child welfare: an opportunity for intervention and reform, 28 widener commonwealth l. rev. 23, 24 (2019). 101 civil justice for all, supra note 98, at 21. 102 barbara fedders & jason langberg, school-based legal services as a tool in dismantling the school-to-prison pipeline and achieving educational equity, 13 u. md. l.j. race, religion, gender & class 212, 229–35 (2013). 103 see infra note 112 and accompanying text. 2021] reimagining schools’ role 603 indeed, several local examples have been developed. the chicago law & education foundation has grown since 2010 to partner with several schools to provide legal services to low-income children and families.104 the atlanta volunteer lawyers foundation began a “standing with our neighborhoods” initiative in 2016, which has grown to place lawyers in nine public schools to help families encountering housing instability.105 in 2018, the moran center for youth advocacy in evanston, illinois, opened a school-based civil legal services clinic focused on family law, housing, public benefits, and immigration issues,106 and operates that clinic alongside an existing program representing children and families in special education and school disciplinary matters,107 demonstrating that such representation need not doom school-legal services partnerships. the school-based health alliance has identified school-based health centers that are tied to their own medicallegal partnerships, effectively tying schools to legal services.108 other school-based legal clinics have operated in connecticut,109 new york,110 and los angeles.111 104 history, chi. l. & educ. found., https://lawclef.org/aboutus/history/ [https://perma.cc/p5s9-k5ut] (last visited oct. 18, 2020); programs, chi. l. & educ. found., https://lawclef.org/programs/ [https://perma.cc/2kjmz48h] (last visited june 2, 2021). 105 standing with our neighbors, atlanta volunteer laws. found., https://avlf.org/standing-with-our-neighbors [https://perma.cc/98fc-5bl3] (last visited oct. 14, 2020). 106 school-based civil legal clinic, moran ctr. for youth advoc., https://moran-center.org/what-we-do/school-based-civil-legal-clinic [https://perma.cc/e85d-3qjt] (last visited oct. 18, 2020). 107 what we do, moran ctr. for youth advoc., https://morancenter.org/what-we-do [https://perma.cc/yn2w-8t4t] (last visited oct. 18, 2020). 108 sch.-based health all., school-based health & medicallegal partnerships (2018), https://www.sbh4all.org/wp-content/uploads/2018/ 08/school-based-health-and-medical-legal-partnership.pdf [https://perma.cc/y7bs-mnhk]. 109 linda conner lambek, students can get legal help at school; attorney opens clinic at harding high, conn. post (may 13, 2014), https://ccact.org/wp-content/uploads/2014/05/ct-post-harding-5-13-14.pdf [https://perma.cc/4j5d-fvl8]. 110 children’s project, volunteers legal serv., https://volsprobono.org/projects/childrens/#partnerschildren [https://perma.cc/e27d-uk38] (last visited oct. 18, 2020). 111 linda jacobson, school-based legal clinic addresses needs of los angeles immigrant families, higher ed dive (may 10, 2019) https://www.sbh4all.org/wp-content/uploads/2018/08/school-based-health-and-medical-legal-partnership.pdf https://www.sbh4all.org/wp-content/uploads/2018/08/school-based-health-and-medical-legal-partnership.pdf https://www.sbh4all.org/wp-content/uploads/2018/08/school-based-health-and-medical-legal-partnership.pdf https://cca-ct.org/wp-content/uploads/2014/05/ct-post-harding-5-13-14.pdf https://cca-ct.org/wp-content/uploads/2014/05/ct-post-harding-5-13-14.pdf 604 colum. j. race & l. [vol. 11:575 our suggestion for school-based legal referrals takes one of the most important trends in child protection law—calls for expanding “pre-petition” representation, in which child protection agencies refer parents to legal services organizations when the agencies identify a need for such services112—a step further. like any other service, there is nothing inherent in it that should require parents to be referred to cps agencies to access it. thus, while we welcome the expanding focus on parent representation and pre-petition representation for families already referred to cps, we seek an alternative pathway to provide such legal services before such cps involvement occurs. 3. school-based health supports schools are uniquely positioned in communities to serve as a conduit for services and resources for students and their families. this is best demonstrated through their ability to provide medical and mental health support, especially to students from historically marginalized backgrounds who often struggle to gain access to adequate medical services within their community. schools, especially those with a school-based health center (sbhc), may serve as a primary point of access to health care for these youth.113 sbhc’s have expanded since they were initially started in the 1960s and are now located in over 2,300 schools. they are often composed of a collaborative team of professionals including medical doctors, dentists, mental health practitioners, health educators, social workers, nutritionists, and other support staff who work together to meet the needs of the https://www.highereddive.com/news/school-based-legal-clinic-addresses-needsof-los-angeles-immigrant-families/554559/ [https://perma.cc/6snk-jcgp]. 112 see, e.g., gianna giordano & jey rajaraman, increasing prepetition legal advocacy to keep families together, am. bar ass’n. (dec. 15, 2020), https://www.americanbar.org/groups/litigation/committees/childrensrights/articles/2020/winter2021-increasing-pre-petition-legal-advocacy-to-keepfamilies-together/ [https://perma.cc/qv3f-rxxq]; casey fam. programs, strategy brief: transforming child welfare systems 2 (2020), https://caseyfamilypro-wpengine.netdna-ssl.com/media/20.07-qff-tspreventive-legal-support.pdf [https://perma.cc/9tw3-3m6g] (“in some cases, families can also self-refer or be referred by other sources (such as the courts or community-based agencies).”). the “common elements” of such pre-petition legal services, however, involve cps agency referrals. 113 michael arenson et al., the evidence on school-based health centers: a review, 6 glob. pediatric health 1, 3 (2019). 2021] reimagining schools’ role 605 youth and families they serve.114 school-based health services serve an integral role in addressing health disparities for youth and families from medically underserved communities which historically are more likely to engage with the family regulation system and to have their children removed and placed in foster care.115 partly due to environmental stressors and experiences with complex trauma,116 foster youth commonly face mental health challenges, and they often go untreated due to lack of access to appropriate care. it has been widely documented that foster youth that have had numerous adverse childhood experiences are more likely to struggle academically in school and to experience substance use issues,117 homelessness, incarceration,118 and mental health challenges.119 schools have the opportunity to disrupt this cycle by providing foster youth and other students (especially students at risk of becoming foster youth) with necessary mental health and medical services to address these needs in a non-coercive manner outside of cps agencies. collaboratively, health professionals and schools can work together to invest in youth and communities while ensuring that those that experience the most systemic barriers thrive. 4. peer support models peer support models are slowly expanding within organizations serving families in the family regulation system, as a result of the growing recognition of the power differential between cps agencies and families.120 broadly defined, a peer 114 id. at 2–3. 115 katherine sanchez et al., fostering connections and medical homes: addressing health disparities among children in substitute care, 32 child. & youth servs. rev. 286 (2010). 116 patricia a. resick et al., a critical evaluation of the complex ptsd literature: implications for dsm-5, 25 j. traumatic stress 241, 242 (2012). 117 j.p. mersky et al., impacts of adverse childhood experiences on health, mental health, and substance use in early adulthood: a cohort study of an urban, minority sample in the u.s., 37 child abuse & neglect 917, 920 (2013). 118 youngmin yi & christopher wildeman, can foster care interventions diminish justice system inequality?, 28 future child. 37, 39 (2018). 119 brenda m. morton, the grip of trauma: how trauma disrupts the academic aspirations of foster youth, 75 child abuse & neglect 73, 74 (2018). 120 how do parent partner programs instill hope and support prevention and reunification?, casey fam. programs (june 4, 2019), https://www.casey.org/ parent-partner-program [https://perma.cc/d7th-l9s8]. 606 colum. j. race & l. [vol. 11:575 support specialist is a parent or child who has previously experienced and navigated a system, such as the family regulation system, and receives training to support someone currently navigating that system.121 peer support models have long existed outside the family regulation system, including some efforts in schools. increased use of peer support models can both expand supports available to families and mitigate the risk that greater school involvement with families will become a new form of coercion. grassroots parent organizing efforts have brought together parents, schools, and community members to address inequality. much of the parent organizing in underserved schools is developed out of the desire to address disparities in education and the local community.122 within los angeles, parents from underserved districts have joined together to advocate for the rights of their children through the formation of organizations such as the community asset development re-defining education (cadre) program. cadre parents seek to disrupt the carceral logics within schools through policy change, community resiliency, base building, leadership development, campaigns and movement building, and coalition building.123 this grassroots organization has increased parent involvement within their community schools and strengthened parents’ ability to advocate for themselves and their children through know-your-rights trainings, legal clinics, and engagement in participatory action research. their work has helped to pass policies that have aided in decreasing school suspension rates within south los angeles. the efforts of parent-led organizations within schools are also a safety mechanism for families and children by providing them a voice and support to ensure that schools do not perpetuate further coercion over vulnerable families. parents involved in these grassroots efforts are often more engaged in their children’s education and are empowered to speak up about the injustices they see within their communities and schools. schools can 121 id. 122 kysa nygreen, competing paradigms of educational justice: parent organizing for educational equity in a neoliberal reform context, 49 equity & excellence educ. 202, 202 (2016). 123 strategies, cadre, http://cadrela.org/newhome/whatwedo/strategies [https://perma.cc/xz8b-f23h] (last visited feb. 25, 2021). 2021] reimagining schools’ role 607 harness the power of these grassroots movements by bringing parents to the table as partners to build coalitions and networks of support. peer support models have a growing evidentiary base, with a diverse range of improved outcomes related to substance abuse, mental health, and family preservation.124 peer support models should be embedded in schools to ensure that parents in the community are formal school personnel that are charged with identifying and working beside peer families that are experiencing family or community adversity. 5. increasing school social workers implementing the proposed changes will require a significant scaling up of work that schools already undertake to identify and address children’s and family’s needs. to achieve that scale, schools will need significantly more staff, especially social workers and other professionals and peer and community supports. the national association of social workers recommends that schools have a ratio of one social worker for every 250 children, and one social worker for every fifty children with what they describe as “intensive needs.”125 presently, schools fall far short of this measure—nationally, there is an average of 0.28 social workers per school, according to u.s. department of education’s office of civil rights,126 and the aclu has calculated the average national ratio to be 2,106 students to one social worker.127 moving to the recommended ratios requires addressing concerns that more school social workers would funnel more children to the family regulation system. we emphasize that increasing the numbers of school social workers should occur as 124 casey fam. programs, supra note 120. 125 nat’l ass’n of soc. workers, nasw standards for school social work services 18 (2012), https://www.socialworkers.org/linkclick.aspx?fileticket=1ze4-9os7e%3d&portalid=0 [https://perma.cc/2py4-ys99]. 126 u.s. dept. of educ., office of c.r., supra note 14 (demonstrating that of the 97,533 schools listed in the crdc school support dataset, all but twenty-one schools provided data on the number of full-time equivalent social workers on staff). 127 am. civ. liberties union, cops and no counselors: how the lack of school mental health staff is harming students 13 (2019), https://www.aclu.org/report/cops-and-no-counselors [https://perma.cc/c4buffhc]. 608 colum. j. race & l. [vol. 11:575 part of broader reforms shifting away from the reporting and investigation status quo and limiting school reports to cps agencies to more severe cases. recognizing that such a shift will require significant legal changes to mandatory reporting statutes and cultural changes within schools, we recommend several additional steps to ensure that additional school social workers facilitate voluntary, and not coercive, supports and services for families. school social worker job descriptions should make clear that their role is to offer supports and services to families. while voluntary reporting to cps agencies would remain even if our recommendation to limit mandatory reporting is adopted, job descriptions should make clear that such reporting is only appropriate when social workers (or other school staff) suspect severe abuse or neglect. relatedly, expanding the number of staff to help families obtain useful supports should not rely entirely on school social workers. peer and community supports, discussed in part iv.b.4, should be used as well. 6. paying for reforms enacting the reforms proposed in this section would require addressing concerns about cost, especially costs of more school social workers and services provided by schools. much, if not most, of additional funds needed for more school social workers can be obtained from reorienting funding from the existing family regulation system and school-to-prison nexus. shrinking the scope of cps to focus on protecting children from severe—but relatively rare—forms of maltreatment would free up many social workers and the public dollars used to pay them. that funding stream could be redirected from cps agencies to school systems. relatedly, shrinking schools’ financial contributions to the carceral web described in part ii.a would free up money for school social workers and other staff. many school districts spend significant sums on policing students, even elementary school students, an activity shown to increase school-based arrests but not school safety. nationally, public schools employ more police officers than social workers—more than 27,000 police officers compared to 23,000 social workers128—and students of color are 128 u.s. comm’ on c.r., beyond suspensions: examining school discipline policies and connections to the school-to-prison pipeline for students of color with disabilities 165 (2019), 2021] reimagining schools’ role 609 particularly likely to attend schools with police but no counselors.129 for instance, the richland county school district one130 spends more than $2.3 million annually to pay for a total of forty-nine police officers in its schools, twenty-eight of which are assigned to elementary schools.131 most of those funds could be redirected to school social workers without jeopardizing safety. school districts can also access alternative funding streams to help pay for this article’s proposals, such as medicaid which can help support mental health and substance abuse services as well as case management in certain circumstances.132 the first step of covering the cost of services to families is to maximize funding from already existing sources. as noted above, medicaid funds mental health services,133 one of the primary services schools could provide. the federal children’s bureau has catalogued a range of funding sources for civil legal services for impoverished families.134 these steps can cover much of the reforms we propose without requiring new funding. some new funding may, of course, also be required, which we submit is justified as a moral imperative to serve children and families more effectively, and as a long-term investment to help children avoid harmful outcomes in the legal system, schools, employment, and beyond. https://www.usccr.gov/pubs/2019/07-23-beyond-suspensions.pdf [https://perma.cc/ajj6-thud]. 129 id. at 51. 130 this is the home district of josh gupta-kagan in columbia, south carolina. 131 data on total cost and numbers of school resource officers (sros) are taken from memoranda of agreement between the district and two separate local law enforcement agencies for the 2019–20 school year. richland cnty. sch. dist. one & richland cnty. sheriff’s dep’t., memorandum of agreement 2019–2020 & addendum 1; richland cnty. sch. dist. one & columbia police dep’t., memorandum of agreement 2019–2020, at 1. the district confirmed in a foia response that its expenditures for sros came from general funds. richland cnty. sch. dist. one, foia request response (aug. 10, 2020). 132 see, e.g., substance abuse & mental health servs. admin. & ctrs. for medicare & medicaid servs., joint informational bulletin: guidance to states and school systems on addressing mental health and substance use issues in schools (july 1, 2019), https://www.medicaid.gov/federal-policy-guidance/downloads/cib20190701.pdf [https://perma.cc/qtz3-99j7]. 133 see sources cited supra note 65 and accompanying text. 134 civil legal advocacy, supra note 97, at 7–13. 610 colum. j. race & l. [vol. 11:575 v. conclusion schools’ roles in the present family regulation system powerfully illustrate the failures of that system. schools are the largest single source of child abuse and neglect hotline reports to cps agencies, but their reports are especially unlikely to be investigated, substantiated, or lead to meaningful protective action. instead, they lead to unwanted and largely unhelpful cps agency intervention and coercive regulation of families. for families that could benefit from voluntary supports, this cps agency involvement represents a missed opportunity to provide more effective and less coercive assistance. schools also represent the promise of a different approach. school staff are in a position to know when families are in need of assistance and to provide such assistance directly, through partnerships with legal services and other community providers. such assistance would require both a significant change in law, so schools would not be legally required to report families to cps agencies, as well as in culture, so school staff would work collaboratively with families, and significant personnel and funding changes. however difficult, these changes are possible, and would help usher in a profoundly more effective way to assist children and families currently poorly served by cps agencies. columbia journal of race and law vol. 12 july 2022 no. 1 centering parent leadership in the movement to abolish family policing this piece was written by the entire rise staff: teresa bachiller, jeanette vega brown, ashanti bryant, keyna franklin, teresa marrero, genevieve saavedra dalton parker, tracy serdjenian, bianca shaw, halimah washington, robbyne wiley, and imani worthy. it was edited by nora mccarthy. “to change everything, we need everyone.”1 i. introduction.......................................................................................437 ii. the need to center parents in the movement to abolish family policing .................................................................................439 iii. barriers to parent movement leadership ........................................440 iv. changing culture: the rise experience ..........................................445 v. centering parents’ political vision ...................................................452 vi. centering parents in the movement ................................................457 1 greta thunberg et al., why we strike again, project syndicate (nov. 29, 2019), https://www.project-syndicate.org/commentary/climate-strikes-un-conference-madrid-bygreta-thunberg-et-al-2019-11 [https://perma.cc/v3sc-dq9p]. 2022] centering parent leadership 437 i. introduction the expertise and leadership of parents and youth with lived experience of family policing belong at the center of the movement to abolish the system, just as black folk are centered in black lives matter.2 those personally impacted and affected by a system should be the lead and face of advocacy, using their first-hand experience to lead the movement in the direction they choose based on insights that only they have. no one understands the repercussions of a system more than those who have experienced it themselves. they have the most to gain in mobilizing for change and the most to lose in the status quo. those without life experience can be helpful in advocating for and contributing to a movement––but allies should not set the agenda. in the movement for family policing abolition, parents, youth, and families who have been directly impacted by the system must be the architects of their own activism and political agenda––with the allyship of advocates, academics, community organizations, and city agencies doing what it takes to truly serve their constituents. this piece shares the work rise has done with intensity since 2018 to build both an organizational culture that invests in and centers parent power and a political vision that centers parents’ expertise.3 founded in 2005 and led by parents impacted by the family policing system, rise believes that parents have the answers for their families and communities. our mission is to support parents’ leadership to dismantle the current family policing system by eliminating cycles of harm, surveillance, and punishment while creating communities that invest in families and offer collective care, healing, and support. we pursue our mission by creating safe spaces where impacted parents can reflect, heal, connect with peers and share in peer support, learn about abolition and the family policing system’s history and policies, strengthen their writing, public speaking, and advocacy skills, and mobilize their communities for justice. in a 2019 strategic planning retreat, the rise staff decided to informally but actively begin to engage in inquiry and learning about abolition together. in 2020, rise held an all-staff abolition retreat led by bianca shaw and genevieve saavedra dalton parker that brought everyone together to learn about abolition and coalesce around our vision for our work. rise then continued our abolition learning together by engaging all staff in the process of developing this piece over the course of five months in 2021. 2 rise is using the term “family policing system” instead of “child welfare system” because our team believes that it most accurately and directly describes the system’s purpose and impact. keyna franklin, why we’re using the term ‘family policing system’, rise mag. (may 7, 2021), https://www.risemagazine.org/2021/05/why-were-using-the-term-familypolicing-system/ [https://perma.cc/ew99-5fgw]. 3 in this piece, we use the term “parents” to refer to parents who are or have been involved with the family policing system (in their capacity as parents). this may include experiencing an investigation, preventive services, foster care, and/or termination of parental rights. 438 colum. j. race & l. [vol. 12:436 each staff member contributed their ideas by writing sections of the planned piece and/or through personal reflections.4 some staff chose to talk through their ideas, with notes taken and shared back to them. these drafts and notes are quoted throughout the piece. staff also engaged in one-on-one conversations, small group discussions via zoom breakout rooms, and readings together to ask questions, process, and share our learning and reflections. multiple drafts were shared with the entire group, discussed, and incorporated as revisions. our process of learning about abolition and becoming an abolitionist organization is continuing beyond the development of this piece. writing this piece was conceived as a way to go deeper in our learning. it also required revisiting our understanding of abolition. in exploring what parents wanted to say about abolition, together we confronted the issue of how the language of abolition created a sense of exclusion—that even though it comes from our communities, it does not feel like it is for us. parents are marginalized and not listened to in their own movement about issues they experience. a group of staff met weekly to explore the tenets of abolition, with a focus on the tensions, confusion, and challenges within rise and the parent community around abolition. in particular, staff delved into issues of tokenism, marginalization, exclusion, and lack of safety in movement spaces related to abolition. we then shared practices that rise parents have found valuable in combating those dynamics. we offer this piece to share our expertise, which has led rise to bring together a staff and senior leadership mainly of people impacted by systems of family separation,5 and to develop training programs and organizing efforts that build relationships, peer support, and the political power of parents. we honor non-impacted people doing legislative advocacy, media work, consciousness-raising, and academic work aligned with movement building, including many who share their expertise with rise or work within rise. we also share in this piece the challenging work of exploring an abolitionist framework alongside parents with a wide range of views, including parents who enthusiastically embrace abolition as well as those who are skeptical of the radical optimism at the heart of abolition. growing a movement requires deep engagement with parents around a political vision. a “system response” to parents who are in a process of exploring what it will mean for their lives to abolish the system might be to abandon, shame, and isolate them from a growing movement to end the harm of family policing.6 rise, in contrast, has been committed to being in that process with parents to learn, grow, and strategize together to shrink and 4 every staff member is listed as a co-author of this piece. 5 three quarters of the staff and leadership are impacted people. 6 one of rise’s core values is resisting system dynamics. the family policing and criminal legal systems operate in ways that punish, shame, isolate, dehumanize, and discard people and take away their decision-making power over their own lives. contact with the system is often inherently traumatic and harmful. 2022] centering parent leadership 439 ultimately abolish family policing systems. as greta thunberg said, “in order to change everything, we need everyone.”7 ii. the need to center parents in the movement to abolish family policing movement organizations, coalitions, and convenings must intentionally attend to the ways they make space and center parents. otherwise, these movement spaces will naturally be inaccessible and inhospitable to all but a few parents, and the movement will stall. social action must reach the streets to amass the public pressure needed for significant change. that requires parents mobilizing parents and connecting to their communities about what they want to change. movement spaces where parents feel outnumbered, dominated, unheard, and sidelined cannot build political power. and yet, in the movement to end family policing, parents are actively tokenized and marginalized in many of the movement’s spaces. there is no real investment in honoring parents’ expertise. in rise’s many years of experience in this movement, we have observed that most movement organizations do not employ parents with lived experience at all or only employ one or two. few parents are on staff anywhere at a leadership level. parents are invited to be speakers at the forefront but rarely hold real power to determine strategy. little effort is made to create a sense of safety, belonging, and connectedness for parents—in short, to see their humanity. instead, many movement spaces internally reproduce dynamics of white supremacy and capitalism, not only centering white leadership (including at rise) but centering those holding credentials and positions of power and legitimacy that impacted parents are locked out of. parents in leadership have often needed to rely on and partner with non-impacted professionals in order to be invested in or seen as legitimate by potential allies or funders. the reality is that non-impacted people act as gatekeepers to the level of power and decision-making that parents have. the message to parents is that, just as the system prosecuted them as unfit to raise their children, non-impacted professionals in the movement also dismiss them as unqualified and incapable of leadership. the biases of their closest allies are a barrier that impacted parents face in getting their voices heard. if impacted parents and families are not centered in the movement, it is likely that changes will not effectively identify and get to the root issues and may even cause further harm to families. as one staff member robbyne put it: “you’ve never been black. you’ve never been through it. so how would you know what we need? we’ve been through it, so let us express our needs and listen. don’t act like you are listening and go ahead and do what you planned to do.”8 moreover, naming reality is a form of power, and those with the power to name “the problem” determine the framework for solutions. in the united states, many “problems” are named through the perspective of 7 thunberg, supra note 1. 8 robbyne wiley, senior parent leader, rise, in new york, n.y. (2021). 440 colum. j. race & l. [vol. 12:436 white supremacy. for example, our society defines the problem of mass incarceration as “black men are criminals” rather than as “black men are impacted by institutional racism within education, legal, and economic systems.” white people have the power to systemically: [s]et the standards by which people of color are judged; make and enforce decisions that may negatively affect people of color; have access to the distribution of resources that shape the lives of people of color; and define the parameters and frameworks within which conversation takes place, and policy is set.9 that form of oppression is reproduced when movement leadership by those not impacted by the family policing system name the problem and solutions. that power must be held by those impacted, and their solutions must be uplifted by movement allies. iii. barriers to parent movement leadership historically, organizing by and for parents separated from their children by the state has been limited compared to advocacy and community-building around other racial and reproductive justice issues. parents name the horrific experience of system involvement itself as the greatest barrier to movement participation. mothers in particular experience state sanctioning of their parenting as shameful, since motherhood is central to their identity for many of them. parents traumatized and dehumanized by system involvement in their lives do not want any reminders of it once they are free. as jeanette wrote: being the person who had their life crumbled and destroyed by the system is the worst experience of my life. i said after my reunification that i would not think of child welfare or have anything to do with it ever again. not my problem, not my concern. i was out and free and i wanted to keep it that way.10 parents also describe system involvement as a form of bodily violence. keyna has written: acs is like going to jail. they tell you what to do to get your life back. you have to jump through hoops to make people happy but then you are not happy because your children are not happy. then, when your children come home, you’re still in jail because you are being watched with everything you do in your life.11 in 2015, antoinette wrote in rise about making a “submission” in court instead of taking her case to trial: 9 lisa albrecht & juliana keen, title iv–e curriculum module: white privilege and racism in child welfare, ctr. for advanced stud. in child welfare 3 (dec. 2009), https://cascw.umn.edu/wp-content/uploads/2013/12/whiteprivilegesubsum.pdf [https://perma.cc/4lr2-nts6]. 10 jeanette vega brown, co-executive director for leadership and policy, rise, in new york, n.y. (2021). 11 keyna franklin, assistant editor, rise, in new york, n.y. (2021). 2022] centering parent leadership 441 tears rolled down my face as i made my submission. my legs were weak. i thought i was going to faint. i felt drained, like the system had broken me . . . . [t]he judge said something like: “do you understand what you are saying? is anyone forcing you to say these things?” it felt so crazy, like a rapist was forcing me to say that i’d wanted it.12 mobilizing against family policing requires talking and thinking about the system and hearing about other people’s experiences. “it’s easy for people to talk about the system when they have never felt its pain,” wrote keyna, “but it triggers families who have. nobody wants to talk about it. it brings up old stuff that you don’t want to talk about or hear.”13 parents triggered in movement spaces are at a disadvantage compared to allies as they cope with intrusive trauma responses, physical reactions like sweating and trembling and feelings of being overwhelmed and threatened. jeanette described her first step into advocacy this way: i was invited to a support group in the bronx, and as i walked in and sat and listened, my first reaction was. “run as far away as you can.” that part of my life was over, forgotten and erased. “why did god bring me to this place?” i thought to myself. as i sat there, i could feel my pain coming back. i never dealt with it, it was just deleted as a bad dream. the other parents made me feel their pain, which was hard to swallow as it was the first time feeling mine too. i cried and went home and just cried some more. i didn’t understand anything i was feeling.14 activism also requires coming into contact with system professionals, making demands that other people have the power to refuse, and coping with feelings of being unheard, shut down, villainized, and powerless once again. parents experience those feelings not only from system leadership and those in political power, but within movement spaces. keyna wrote: you don’t want people to tell you how you feel. you don’t want people to judge you for having a case or getting your children removed from your care. you fear that they might say, “it didn’t happen that way” and, “you don’t know what you’re talking about.” it’s painful. that’s a reminder of how acs came into your household or talked to your children’s school and your children’s doctor and your neighbor, and looked at you as if you’re not human.15 parents feel stigma and shame even in movement spaces and in their closest relationships. “parents are afraid of what the people around them think and feel about their involvement with the system. public trust is in the system, and that creates public scrutiny against parents. after 12 antoinette robinson, coerced in court – i wish i’d never let the court find me guilty of neglect, rise mag. (sept. 1, 2015), https://www.risemagazine.org/2015/09/coercedin-court/ [https://perma.cc/u4aq-vx23]. 13 keyna franklin, supra note 11. 14 jeanette vega brown, supra note 10. 15 keyna franklin, supra note 11. 442 colum. j. race & l. [vol. 12:436 being villainized by such a toxic system, who honestly wants to go through that?” imani wrote.16 the system already came and ruined our lives, what more can they do? but living with the shame of having to go through the experience is real. we’ve been conditioned to be ashamed of these things. we’ve been conditioned to be ashamed of who we are. society labels parents who have had their children taken away as bad parents.17 in addition, parents entering activism are often still experiencing a great deal of crisis in their families, even once their cases are closed. active investigations and other family stresses are threatening and draining, and demand their immediate attention. these parents can bring important information and perspectives to the movement, but they also need spaces to be holistic, flexible, and healing. at times, they also need movements to support them with connections to resources. otherwise, their advocacy will be derailed. in other words, centering parents in the movement requires investment in parents. building parent power means centering the needs and desires of those who have been directly impacted by a violent system. it means making space and actively supporting parents in taking it. at the same time, accessing much of the technical knowledge needed for policy advocacy and legislative reform requires working within or in close proximity to the system, as does direct support work with system-involved parents. many parents feel distrust about working with people who work in or in close proximity with the system that tore their family apart. it is common to fear being subjected to vulnerability and powerlessness by negotiating with them once again. “helping parents get out of the system meant that i had to work with the system, and from the start that was very hard,” jeanette wrote.18 i started in conferences where my role was to listen and give parents the resources to avoid the system separating their families. some families unfortunately still got their children removed, and once again i saw how the system has so much power and say over families’ lives. i would leave those meetings feeling defeated and powerless again.19 countering these dynamics requires actively investing in parents and creating safety for them. halimah said: what is helpful is the time spent seeing each other’s humanity. that means asking people to share their pronouns, to share their ideas, doing check-ins, making group agreements, and making sure we all adhere to them, and checking each time we meet to make sure we’re still in agreement. it means calling people or going to their house if you haven’t seen them in a while. it’s about investment in 16 imani worthy, public speaking coordinator, rise, new york, n.y. (2021). 17 id. 18 jeanette vega brown, supra note 10. 19 id. 2022] centering parent leadership 443 people’s wellness and seeing them, and helping people get things off their chest, because healed people heal people.20 these intentions and practices create a sense of safety, belonging, and connectedness that is not often available to parents, because these experiences are counter to the norms of the family policing system and of white supremacist, capitalist society more broadly. halimah added: people in marginalized communities often have to deal with numerous systems––education, housing, medical––with inequities and inadequacies, and that are not designed to see our humanity and understand how we’re connected. in housing, it’s “we’re the experts and you need to sit down and learn from us.” the medical system knows more about you than you know about yourself. in the education system, the attitude is “you can’t tell us anything, we’re the educators.” a movement space should respect and honor that everyone has something to contribute. but movement spaces have also been guilty of rubbing people the wrong way and rubbing people out.21 moreover, parents often feel unwelcomed in movement spaces that are defined and controlled by allies, not parents. at the most basic level, parents are usually outnumbered, even in movement spaces, and especially in who is convening and leading. jeanette wrote: “in my experience, it’s always been one parent to 10–20 other stakeholders at the table, all making decisions for our families. those dynamics must change for real parent power to come through.”22 in contrast to many allies who pursue years of training to become, for example, a lawyer or organizer, parents impacted by family policing join the movement because of something unwanted that happened to them and their family. parents come into movement and advocacy work based on their experiences, commitment, and passion to create change, but without specific preparation for movement work. investing in impacted parents’ training prepares parents with the knowledge and skills needed for this role, and uplifts the strengths, interests, talents, and connections that they already have and bring to this work. another barrier is language. ashanti wrote: “people may use terms that are available mostly to people who have law, social work, and other advanced degrees. those who don’t understand the jargon can be intimidated, isolated, and excluded in that environment.”23 allies not only have technical knowledge and insider information that parents do not have access to, they also set norms about language, the pace of meetings, the framing of the problem, and often the strategy and solutions. teresa b. said: in lots of groups you have a bunch of white people in the highest paid jobs speaking the language that we don’t 20 halimah washington, community coordinator, rise, in new york, n.y. (2021). 21 id. 22 jeanette vega brown, supra note 10. 23 ashanti bryant, program assistant, rise, in new york, n.y. (2021). 444 colum. j. race & l. [vol. 12:436 speak, and you don’t walk in those shoes. you see parents in quiet mode because the pace you’re moving at is so fast that there’s no communication. you’re excluding people from where they could make a change.24 those closest to conforming with the styles, beliefs, and capacities of allies are most heard. halimah said: if you don’t speak properly, if you don’t look the part, play the part, act the part, there is no real respect given. you’re ignored, or people label you as angry, or too demanding, or dumb, or “not appropriate for the message we’re trying to convey.” they shame and isolate you into hopefully conforming to whatever it is they want you to do. people who can do that are elevated, there’s investment, they’re given opportunities to speak or be the face of something, they’re propped up. other people are left to fall to the wayside. people that can’t speak the part, they start to feel ashamed of their experiences. they start to think that what they have to say is not valid. their voice is not heard or honored, and they shrink back into the same spaces that they’re trying to get out of because that’s a place of comfort, familiarity and respect.25 of course, there is much that allies do not understand in what parents say, either. but allies do not lose power when they do not understand parents, and that double standard speaks to the power imbalances that may arise in these spaces. as teresa b. said: “they have the ear of the community, but we don’t have any power.”26 this dynamic especially impacts parents whose lived experience does not conform to movement narratives. just as some efforts to end mass incarceration have focused on non-violent offenses, messaging on family policing has emphasized poverty, medical misdiagnosis, and neglect, shaming and marginalizing parents whose histories include real harm to their children. halimah said: people are pitted against one another in what’s considered acceptable and unacceptable. it’s elevating those charged with neglect and almost hiding the folks charged with abuse. it’s about easy wins and easy stories. neglect is easier to resolve. it takes real work to move to a place of understanding, taking accountability, and transforming harm into healing.27 since allies, not parents, typically hold institutional power, they are in the position of inviting parents into movement spaces, not asking parents how to be in allyship. to parents, that means that they are able to 24 teresa bachiller, rise & shine program coordinator, rise, in new york, n.y. (2021). 25 halimah washington, supra note 20. 26 teresa bachiller, supra note 24. 27 halimah washington, supra note 20. 2022] centering parent leadership 445 act for their families and communities only at the pleasure and around the priorities of more powerful people. teresa m. vividly described being “just a face in a space” on the board of a community organization focused on families in her neighborhood.28 at first teresa and the other people “with the title l.e. next to our names (life experience)” did not notice the dynamic:29 “we were so happy and so proud to be a part of something that is life changing for the life of the neighborhood. i never saw myself being part of the bigger picture. i always had that drive in me so i was just glad to be there.”30 but the space was not welcoming. “plenty of times i sat in meetings and i was clueless. there were never any check-ins or opportunities for clarity. i just sat there and eventually figured it out on my own.”31 after almost a year, real decisions needed to be made, but the consensus from the community members was not validated or taken into consideration. teresa m. added: “i was there as a community member but i can’t even think of an instance when we opposed something and our opinions were heard.”32 iv. changing culture: the rise experience rise, founded in 2005, can share the expertise we have gained in becoming substantially parent-led—with three-quarters of the staff system impacted—and in working to more equitably distribute the right to comfort, access, and power.33 folks who have been listened to, trusted, and invested in by society generally do not share the intersection of identities (race, gender, class, etc.) of impacted parents. centering parents requires investment in people who do not have access to the social capital and trappings of prestige that accelerate power. in 2018, after a period of rapid growth, we began intentionally naming and combating oppressive dynamics in our work; otherwise, power and marginalization would continue to be present within rise according to the same lines that cut through our society. the first step, decided in an all-staff retreat in 2018, was to establish rise & shine, our leadership training program for new parents. parent staff developed and lead the program, which meets three days each week for eighteen weeks, offers a stipend, and focuses on core elements of movement leadership, including confidence and connection. teresa b. said: 28 teresa marrero, parent advocate training coordinator, rise, in new york, n.y. (2021). 29 id. 30 id. 31 id. 32 id. 33 by “comfort” we mean to refer to the experience of emotional comfort and inclusion that lies in not being othered or made to feel othered all of the time by group norms of education, wealth, whiteness, and discourse, as well as employment roles, positions, and power. see tema okun, white supremacy culture, in dismantling racism: 2016 workbook 28, 35 (2016), https://www.dismantlingracism.org/uploads/4/3/5/7/43579015/ okun_-_white_sup_culture.pdf [https://perma.cc/6qml-e6a5] (problematizing the “right to comfort” of those in power, which functions to set norms and standards that “make it difficult, if not impossible, to open the door to other cultural norms and standards . . . really only allow[ing] other people and cultures to come in if they adapt or conform”). 446 colum. j. race & l. [vol. 12:436 family policing doesn’t give you support, doesn’t show that you matter, that your voice matters. it knocks you down, breaks you down. the system makes people feel weak. you don’t have control over your life. the system makes you feel and think that you can’t trust anyone, even other people who look like you. part of abolition is about building something else—a support and care network.34 in rise & shine, ally guest speakers present alongside rise parent staff, past rise & shine graduates, and parent advocates working in new york city, in order to provide parent participants with information about the system’s history and legal frameworks, systemic oppression, coping with trauma and stress, the parent advocacy movement, community organizing, and movement building. the program also includes a writing workshop series, a public speaking workshop series, and a “mini-project” that brings together storytelling and advocacy. teresa b. said: we educate each other and draw connections with each other and our history. we create a healing space to feel empowered and safe, motivated and accepted. when there is an issue or a crisis, we provide support without violating someone. we help people improve their management skills for working with others. we recognize people and remember people and give each other support.35 most important is that rise & shine offers a safe space for parents to talk about their experience with the system without fear of retaliation or shaming. keyna wrote: parents need healing. once you get involved with the system, you are never the same person. what you went through will always stay in your mind, body and soul, and when you hear other people talk about the system, it will bring up all the feelings you have. not talking about it can be very harmful to you and your family. if you are holding it in, it feels like you can’t breathe. if you talk about it, it won’t take it away, but you can breathe easier.36 rise & shine seeks to make a safe space for parents to write, speak, and heal. the program uses restorative justice circle keeping to give participants a chance to share and hear from each other, and pairs parents up through a buddy system so that parents can check up on each other.37 robbyne said: 34 teresa bachiller, supra note 24. 35 id. 36 keyna franklin, supra note 11. 37 see generally lesson 3: programs – circles, ctr. for just. & reconciliation, http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-torestorative-justice/lesson-3-programs/circles/#sthash.ezmfqq7s.3x3ufnoe.dpbs [https://perma.cc/pw5c-ywku] (defining and explaining restorative justice circles through their origins in native american cultures, and tracing their “adaptation to the criminal justice system” as a means of forming “closer ties” and “sharing the justice process” with the community). today, circles are used in many settings and for different goals and purposes. they are used not only in the criminal legal and juvenile legal system, but in workplaces, 2022] centering parent leadership 447 i call the parents at night to remind them about the program, and we have our little conversations. it’s always somebody at rise that will listen to what you say, help you get where it is that you’re trying to go. we tell them, “you know, we’re your new family. we’re not going away.”38 keyna wrote: “we let them know that this is a community and the community supports healing each other.” 39 she names the little book of race and restorative justice as a resource: “it urges racial justice advocates to invite more healing into our lives and restorative justice advocates to bring more warrior energies into theirs.”40 the writing and public speaking workshops offer parents a chance to reclaim a story too often told by the system: a judge, a parent’s attorney, a caseworker. after being silenced, parents are finally able to speak for themselves in the workshops. imani wrote: i came into rise & shine as an impacted parent who knew that i wanted to be able to support and empower other mothers who had been in a similar situation. even though i am rightfully angry at the system, i had the opportunity to heal and learn about restorative justice practices, envisioning safe and strong communities, and abolition. what i liked the most about the program is that i didn’t feel like i was the only one. everyone, including the facilitators, contributed to our community. it never felt like there was a power dynamic. that is so important. i felt safe.41 imani was able to own a stigmatized identity—“angry black woman”—that the system tried to use against her. she wrote: i remember the system lawyer suggesting i go to anger management. people with fiery tempers are often also passionate, with a strong sense of right and wrong. because of my anger, i have been able to turn that into passion to advocate for social awareness of the harms of these systems, schools, and community groups and organizations. circles can address harm and conflict. they emphasize accountability and relationships as they consciously enlarge the circle of participants. they may include those who have been harmed, those who have caused harm, their family members, community members, etc. circles are also a proactive strategy for building relationships, supporting healing, and preventing harm. participants pass a talking piece to assure that each person has an opportunity to speak. one or two “circlekeepers” serve as facilitators. in indigenous communities, elders play an important role in the process. the process is values-driven and voluntary. see shakira paige, building safety in community through restorative justice, rise (july 6, 2021) https://www.risemagazine.org/ 2021/07/building-safety-in-community-through-rj/ [https://perma.cc/ury2-czfz] (detailing the thoughts of ashley ellis, co-founder of b.r.e.a.t.h.e. collective, who trained rise staff, on restorative justice circle keeping); see also kay pranis, the little book of circle processes (2005); howard zehr, the little book of restorative justice (2d ed. 2015); b.r.e.a.t.h.e. collective, https://www.thebreathecollective.org/ [https://perma.cc/3fl6ltzp]. 38 robbyne wiley, supra note 8. 39 keyna franklin, supra note 11. 40 id. (citing fania e. davis, the little book of race and restorative justice (2019)). 41 imani worthy, supra note 16. 448 colum. j. race & l. [vol. 12:436 to fight for abolition, and to have a platform through rise to do so.42 beyond rise & shine, we needed to address dynamics of investment and vulnerability for parent staff. bianca wrote: at a 2019 retreat, staff raised tensions within the organization, asking, “what is a parent leader? what does rise really mean by building parent leadership?” what parents were really asking was: what makes rise credible to create a vision for parent leadership when they themselves often did not feel supported or invested in by the organization?43 this critique was unsurprising. for some time, it had been clear that some parents held increasingly greater responsibility, and in turn received greater investment from senior staff, while other parents were stuck. this was not only a skills gap. the culture of the organization left them feeling highly vulnerable and uncertain about their role and their future at rise. that, in turn, held them back in making demands and taking risks to push for what they needed and deserved. robbyne said: parents come in interested in doing things, but if you can’t understand what you’re doing, you start sliding back in your seat, you just drift. i know that’s me. i don’t want to speak up because i think people will think, “why is she here? how is she with rise if she doesn’t understand?” i didn’t want to leave rise, but i felt that if i showed how confused i was, i was going to get pushed out.44 these are system dynamics; robbyne feared that if she asked for help, she would get punished. she likened the sensation of pressure and confusion in some rise meetings to the sense of threat she felt in foster system meetings about her family: “i felt so lost, so scared, that if i don’t know the answer, i’m not going to get my children back.”45 rise needed a stronger set of organizational practices to combat fear and vulnerability and to meaningfully invest in parents to build depth of knowledge, alongside confidence and capacity to contribute. bianca wrote: first, i turned to black queer feminist teachings. as an organization that is primarily staffed by directly-impacted people, many of whom identify as black women and women of color, black queer feminism provided a framework to consider how intersecting oppressions show up within our organization. working with directly-impacted parents means taking into account their experiences as not only survivors of the family policing system, but also survivors of 42 id. 43 bianca shaw, co-executive director for programs and culture, rise, in new york, n.y. (2021). 44 robbyne wiley, supra note 8. 45 id. 2022] centering parent leadership 449 racism, classism, sexism, ableism and other forms of oppression.46 to address how these experiences impact parents in rise as a workplace and in the larger movement, some of our first key learnings came from adrienne maree brown’s book, emergent strategy, which explores “how we intentionally change in ways that grow our capacity to embody the just and liberated worlds we long for.”47 brown shares individual and organizational practices that move us closer to the power dynamics and interpersonal dynamics we want to see in the wider world. she names the principle “small is all” as a reminder that the movement we are building and the world we are trying to create will reflect our daily choices and practices.48 we cannot know what it really means to call for parent and community investment without first practicing that in a “small” way within our organizations and movement. likewise, cara page and adaku utah’s workshop “reclaiming resilience and building collective care” and the book the thin book of trust, which they introduced in the workshop, brought us the concept that relationships are the foundation of our work and our ability to free ourselves.49 relationship-building is not only about safety; it is about building the informal networks that offer guidance, support, and— particularly in workplaces—access to information and power. while organizations can build formal structures to increase inclusive and transparent decision-making, individuals with strong relationships are most able to informally gain access and build influence. parents are not usually navigating professional spaces where they are regularly connecting to others with knowledge, power, and privilege who are discussing theories and visions, sharing insider information, and informally making decisions. bianca wrote: “our connections to others are important—they get us in doors, help us learn and grow, make us more visible and give us more power. parents are shut out from these connections.”50 giving attention to relationship-building is a form of opening up access to power. tema okun’s article on white supremacy culture and aysa gray’s article on the bias of ‘professionalism’ standards also name harmful dynamics that are present within rise: moving so quickly to respond to external demands that inclusive understanding and decision-making cannot happen; having limited transparency around decision-making; and granting non-impacted staff a “right to comfort” while parents are left feeling vulnerable.51 these dynamics are not specific to rise but are deeply rooted and widespread symptoms of white supremacy and other forms of oppression. these practices exist within the larger non-profit industrial 46 bianca shaw, supra note 43. 47 adrienne maree brown, emergent strategy: shaping change, changing worlds (2017). 48 id. 49 cara page & adaku utah, workshop on reclaiming resilience and building collective care (may 17–18, 2019) (supported and organized by the audre lorde project 3rd space collective); charles feltman, the thin book of trust (2d ed., 2021). 50 bianca shaw, supra note 43. 51 okun, supra note 31, at 29, 31, 35; aysa gray, the bias of ‘professionalism’ standards, stan. soc. innovation rev. (june 4, 2019), https://ssir.org/articles/ entry/the_bias_of_professionalism_standards [https://perma.cc/5qjb-fa7w]. 450 colum. j. race & l. [vol. 12:436 complex as well as within movement spaces that aim to undo these same conditions. bianca led an initiative to create wellness in the workplace and address parents’ critiques. first, she met with each staff member individually to conduct an assessment based on the thin book of trust. staff responded to questions related to four categories outlined in the book: sincerity, care, reliability, and competency. bianca then held several staff discussions using a restorative justice approach to name common themes, tensions, and hopes. to ensure that all voices were heard in these discussions, we established community agreements for how we would communicate and used a process called “dotmocracy” to identify issues most important to staff. we discovered that staff held conflicting perspectives that impacted our ability to trust each other. parents observed that our values seemed misaligned; the same values were not upheld by everyone in the organization. furthermore, without having named our organizational values, we had no basis to determine whether our practices were living up to them. this led the organization to commit to creating practices that build trust, ensure that all voices are heard, move toward radical vulnerability, and create a space where parents, especially, can be heard without fear or repercussion. as a result, rise made shifts to balance our ambitious external agenda with our ambitious internal agenda of equity. we: ● defined our organizational values and began co-creating values-based community agreements in all programs to commit to how we will work together; ● increased transparency, as many parents felt they held little information or power in organizational decisions; ● created a leadership team so that more people hold information and provide input into decisions; ● developed a management structure that aligns with our values, integrating our values into annual reviews that support investment in staff development; and ● trained all twenty staff and contributors in circle keeping. our supervision structure focuses on skills development and supports relationship-building. it includes making space to acknowledge how the work may impact us and how experiences in our personal lives and society (i.e. the covid-19 pandemic, state-sanctioned murders of black people) impact our work. we provide feedback in both directions, giving everyone space to make mistakes and strengthen skills. we seek to create an environment that allows us to learn about oppression, abolition, and leadership development, and in turn to apply that knowledge. as robbyne said: “so much will be on our plate and we move so fast, but we always have the time for parents. no matter how fast we’re going, we put on the brakes, and that is so important. a lot of parents are still so alone.” 52 52 robbyne wiley, supra note 8. 2022] centering parent leadership 451 at first, we saw this organizational change work as being about becoming anti-oppressive and trauma-informed. over time we named that it is about healing justice and abolition. we then worked from that intentional goal.53 abolition is not just about toppling systems, but also about cultivating spaces where people feel seen, safe, affirmed, courageous, and respected. if we can build this culture inside rise, we will know deeply what it takes to create different conditions for families in impacted communities. this work at rise is still beginning, but the difference is palpable. today, most of our programs are led by directly-impacted parents.54 rise is presently co-directed by two women of color—jeanette vega brown, a parent impacted by the family policing system, and bianca shaw. just as importantly, we continue to center relationships, collective care, and accountability in all of our work. this is the foundation of our abolitionist vision and our contribution to the movement for family justice. without centering relationships to “sow seeds of equity,” as imani has said, we cannot claim to be creating a world where people are in a position to take care of each other and have everything they need to do so.55 teresa m. described community organizations as places that “bring the strengths out in people” and “with a belief system derived from people who have the same lived experience.”56 organizations that employ people with “l.e. after their name” or that seek to include and share decisionmaking authority with parents, youth, and families need to build processes that intentionally invest in and center their power. movement-building isn’t about grooming stars but about building teams and recognizing an authentic place for everyone. that requires doing the work in ways that intentionally center people with marginalized identities. organizations that do not meaningfully and structurally center parents need to ask, “what does allyship mean for us? how can we be allies in this movement instead of holding space at its forefront?” 53 see generally leah lakshmi piepzna-samarasinha, a not-so-brief personal history of the healing justice movement, 2010–2016, mice mag., https://micemagazine.ca/ issue-two/not-so-brief-personal-history-healing-justice-movement-2010%e2%80%932016 [https://perma.cc/2xdg-tdar] (discussing healing justice); see also healing justice, transformharm.org, https://transformharm.org/healing-justice/ [https://perma.cc/9djkhsfu] (defining healing justice as “a framework that identifies how we can holistically respond to and intervene on generational trauma and violence and to bring collective practices that can impact and transform the consequences of oppression on our bodies, hearts and minds”). the healing justice framework is particularly significant for honoring intergenerational trauma, building political meaning, and confronting oppression within liberatory social movements. id. (referring to “build[ing] political and philosophical convergences of healing,” “heal[ing] on our terms,” “honor[ing] the trauma and resilience of generations that came before us,” and “support[ing] the self-determination, interdependence, resilience [and] resistance of those most impacted.”). 54 keyna franklin, our leadership is an extension of our values, rise (oct. 12, 2021), https://www.risemagazine.org/2021/10/our-leadership-is-an-extension-of-our-values/ [https://perma.cc/q9a2-9kpy]. 55 imani worthy, supra note 16; keyna franklin, our leadership is an extension of our values, supra note 54. 56 teresa marrero, supra note 28. 452 colum. j. race & l. [vol. 12:436 v. centering parents’ political vision over the same years that rise has shifted our organizational culture, we also shifted our mission toward a new north star: community investment, collective care, and support for families so that they can live in communities free from harm and have the resources for a strong family life without system involvement. rise began to move toward an abolitionist vision as we reckoned with the reality that new york city has halved the number of children in foster care only through a dramatic escalation in the system’s surveillance, monitoring, and intrusion in families.57 in 2017, as activism to end stopand-frisk made visible the reality that surveillance has no correlation with safety,58 and as a painful child homicide launched a classic foster system panic with rising hotline calls and family separations,59 parents at rise began to wonder how we could work on reducing all forms of system contact with families. that led, over time, to abolitionist learning. this work has needed to move in tandem with our culture shift. four years ago, people on staff did not have enough interpersonal trust, a framework to envision action, or a sense of hope and possibility to do radical reimagining together. the process broke down. a series of facilitated retreats in the summers of 2018, 2019 and 2020—the last one focused exclusively on understanding abolition—created an intentional space for working through the issues. engaging with abolition as a framework, practice, and strategy has been complicated. it has shown us that abolitionist movement-building with parents will require a significant investment in consciousness-raising and community organizing. parents have always been engaging in abolitionist work. at the child welfare organizing project, advocacy began in peer support groups; there was always something to eat in the fridge, and parents could let their kids play while they picked up flyers about community resources or used a computer to access the internet.60 57 rachel blustain, surveillance isn’t safety – how over-reporting and cps monitoring stress families and weaken communities, rise (sept. 17, 2019), https:// www.risemagazine.org/2019/09/surveillance-isnt-safety/ [https://perma.cc/l6sh-peph]. 58 james cullen, ending new york’s stop-and-frisk did not increase crime, brennan ctr. for just. (apr. 11, 2015), https://www.brennancenter.org/our-work/analysisopinion/ending-new-yorks-stop-and-frisk-did-not-increase-crime [https://perma.cc/tmf4l2al]. 59 one element of nyc foster care panic eases; everything else still stinks, nat’l coal. for child protect. reform: child welfare blog, (july 20, 2018) (citing abigail kramer & angela butel, new sch. ctr. for n.y.c. affs., child welfare surge continues: family court cases, emergency child removals remain up (2018)), https://www.nccprblog.org/2018/07/one-element-of-nyc-foster-care-panic.html [https://perma .cc/465y-kghj] (describing the foster care panic proceeding from the child abuse-related homicide, and summarizing continued “overload[]” of the family regulation system); see also yes, nyc, there is a foster care panic. the mayor’s own “management report” proves it, nat’l coal. for child protect. reform: child welfare blog (sept. 26, 2017), https://www.nccprblog.org/2017/09/yes-nyc-there-is-foster-care-panic.html [https://perma.cc/ n5fd-57zl]. 60 jeanette vega brown, supra note 10. the child welfare organizing project is a decades-old community-based group of and for parents impacted by or at risk of impact by the acs in new york, with the aim of “assert[ing] a powerful, countervailing parent voice in acs policy and practice.” mike arsham, how the child welfare organizing project helped 2022] centering parent leadership 453 yet many nyc parents joined in advocacy at a time when sitting at the system’s table was viewed as a path toward meaningful power to protect their families and communities. still today, working within the system or in partnership with the system as parent advocates is often the only funded and clear path for parents who want to make change and support other parents. with that context, abolition would mark a radical shift in tactics. in de-centering the system’s power, it challenges all of us to recognize the failure and even harm of reforms that many longtime advocates, including parents, worked passionately to enact. in centering community change over system change, it requires reorienting and building new structures of power and believing in the potential of untested new approaches. it also means envisioning and expanding our understanding of the roles that parents can and do hold in this movement. in staff conversations and a series of structured community conversations that rise held with dozens of parents over the past year to develop a parent-led, parent-centered platform and vision for new york city, we heard enthusiasm for abolition mixed with real concerns. parents were clear that they want supports outside of the system and from other parents impacted and in community-based organizations not tied to the system in any way. they named the reality that system entanglement in support does not keep children and communities safe; it drives a wedge between children and parents and between organizations and the communities they serve. yet parents also raised concerns that resources families rely on would be eliminated without any parallel investment and that parents currently involved in the system would be abandoned by advocates playing a long game, leading to greater harm, separation, and suffering. keyna wrote: “you can’t let the system go without having something else to support the family.”61 some parents were having a difficult time imagining anything different because the family policing system is connected to everything involving children. in many conversations, parents said that the system controls access to important services that did actually help their situation, like priority childcare and housing vouchers, even though they wished they did not have to experience the harm of the system itself to get access. some parents also voiced disbelief that safety can be accomplished for all families without reliance on systems and questioned whether allies fighting to abolish family policing recognize real harm. in their own lives and advocacy, parents have experienced and witnessed significant violence including child homicides, children and women trafficking, sexual abuse and rape, and children’s abandonment related to drug use, mental illness, or domestic violence. imani wrote: “people connect personal traumas to the needs of keeping systems open. i hear parents who have been impacted, have had their and their children’s lives traumatized by the system, and still have faith in the system to go against ‘bad parents’ who are actually bring parent advocacy to nyc’s child welfare system, int’l parent advoc. network, https://toolkit.parentadvocacy.net/cwop-parent-advocacy/ [https://perma.cc/kjv9-rcvj]. 61 keyna franklin, supra note 11. 454 colum. j. race & l. [vol. 12:436 hurting their children.”62 while abolitionist approaches to prevent and address serious harm, including domestic violence and child abuse, exist in various ways, the wider public has yet to recognize, explore, and expand on those practices. lastly, the enormity of “changing everything” can “just seem intimidating and out of reach to even begin to tackle,” ashanti wrote.63 “these systems are so embedded in racism and destruction that it’s hard to understand or where to begin to rewire and fix that we’ve been so accustomed to.”64 abolition requires radical imagination, hope, and belief that our society can be different, at both the structural and interpersonal level. it contends that we can treat one another differently. that we can heal. that our relationships can become stronger. that a neighbor will provide. that punishment and banishment are not effective solutions. that white supremacy can be overcome. ambitious dreaming can be challenging to hold on to for parents impacted contending with conditions of oppression in everyday life. as teresa b. put it, “when i go outside, i see the sidewalks are still all cracked from corner to corner, and i know that if this was a white neighborhood, they would be smooth.”65 in addition to challenges with the framework of abolition, many parents felt locked out of exploring abolition by the same barriers that lock parents out of power in the movement. parents experienced abolition as a framework that seemed to have rights and wrongs decided on by academics, leaving parents feeling that they were being told to think like and take orders from professionals who think they know more about parents and their communities than parents do. much of the language also felt out of reach (“systemic oppression,” “divestment,” “addressing harm”). as genevieve wrote: i hear parents struggling with abolition as a “foreign” idea that has come from other people, not parents impacted: “i get it but sometimes i need more knowledge of it in order to get a better idea.” “sitting and reading this article is like not knowing the language.” “you can read it and read it and read it, but will i understand it? no.”66 for rise, the commitment has been to make sure parents are being held and supported wherever they are. in an all-staff abolition retreat and in weekly groups to write this piece, we clarified together that abolition is a framework that has come from people impacted by policing and prisons, not just academics, and has come from their experience of how systems retrench and can even grow stronger though “reformist” reforms. we broke down complex phrases like “systemic oppression” in terms of the lived reality they represent, and explored how calls to burn the system down can seem to replicate a cycle of control, retaliation, and punishment enacted by the system itself. jeanette wrote: “parents have been attacked by child 62 imani worthy, supra note 16. 63 ashanti bryant, supra note 23. 64 id. 65 teresa bachiller, supra note 24. 66 genevieve saavedra dalton parker, development director, rise, in new york, n.y. (2021). 2022] centering parent leadership 455 welfare for years. when i hear abolition and think of attacking the system, it feels like i will replicate the same harm and hurt.”67 the abolition retreat offered a reflective and loving space to work through fears and desires, to honor that a lot of parents at rise want to resist and heal from all levels of internalized, interpersonal, and structural oppression, and to build the changes we want to see. it was the most important to recognize that abolition is not a prescription or demand but a framework for action. a platform for political action still needs to be envisioned and led by parents. abolition is a framework but movements applying it to how we move toward an equitable, healing, and just society for parents are where parents’ expertise can never be replaced. jeanette wrote: parents need a baseline of abolition principles and strategies, not strong perspectives of what it needs to be or look like. we need things we can read and ways to understand what’s hard to understand about abolition, so we can make up our own ideas of the movement. parents needs to explore their own feelings about what the movement means to them—what makes you feel proud to speak about in this abolition framework.68 we also heard the need for community education and consciousness raising to work through a collective vision with many more parents. imani wrote: people still trust the system, because the media sensationalizes child deaths and because of nyc’s excellent advertising, which the system uses to literally put a flyer up anywhere. waiting for the bus, on the subway, when you enter some government buildings, you will see that infamous sign “protect nyc children.” our government hypes it up, so it is up to us, the impacted people, to hype up public awareness of the harms of family policing. we need social advocacy to awaken and empower the people who have been affected and allies to build power.69 our own team benefited most from learning from people we trust. as staff members including keyna, imani, halimah, bianca, and genevieve brought their understandings into our discussions, abolition began to seem more approachable. through conversations and interviews, our team found credibility in those working at grassroots organizations using practices of mutual aid, restorative and transformative justice, credible messenger mentoring and peer support. seeing how these organizations rely on relationships and networks to amplify the capacities communities already have has made it easier to see how abolition’s vision can be practical and tangible to tackle. that helped our staff recognize how aspects of our organizational culture already embody abolitionist principles and can become community practices. just as peer support approaches knit 67 jeanette vega brown, supra note 10. 68 id. 69 imani worthy, supra note 16. 456 colum. j. race & l. [vol. 12:436 our rise team together, they can be powerful tools for building community with parents beyond rise. the result of this deep process of exploration is rise’s launch of two abolitionist programs. first, rise launched a network of trained parent peer supporters who work to interrupt cycles of family crisis and system intervention by providing information, resources, and support to parents in new york city’s most impacted communities. rise’s parent-led peer team developed a report and model of peer and community care to support safe, thriving families and to prevent involvement with the family policing system.70 the team is now building the necessary infrastructure to begin training peer supporters in 2022. second, we launched a community education initiative for mobilizing around a parents’ platform that reflects the political vision of parents impacted. the parent-led community organizing team developed a participatory action research report documenting parents’ experiences with the family policing system and exploring a collective vision to transform our society’s structures, policies, and practices related to family and community support.71 it includes concrete recommendations that can serve as stepping stones toward abolition.72 our organizing team is now developing a parents’ platform to advocate for investments that will improve community conditions, reduce family policing, and build new approaches to preventing and addressing harm. rise is building relationships and visioning with allies, parents, and community members and groups about how to both build a robust peer support network in new york city and develop policies that move us closer to abolition. paradoxically, envisioning and building abolitionist actions have been easier than working through abolition as a concept. as teresa m. put it, “i don’t think about the politics of the work, i work from passion and action. i like to be part of the actions that make change that i want to see.”73 jeanette wrote: i see abolition as creating the new world and networks of community support that families need. abolishing family policing is not about changing the system’s culture or helping them be nicer, it’s about ending racism against black and brown families, stopping the targeting and surveillance of our communities and bringing and developing a new system of support within communities. abolishing the system, for me, is reimagining the community i want to live in.74 70 rise peer vision team, someone to turn to: a vision for creating networks of parent peer care, rise insights (2021), https://www.risemagazine.org/wpcontent/uploads/2021/05/rise_peercareinsights2021_final.pdf [https://perma.cc/md3anuqv]. 71 naashia b. et al., rise participatory action rsch. project & takeroot just., an unavoidable system: the harms of family policing and parents’ vision for investing in community care, rise (2021), https://www.risemagazine.org/wpcontent/uploads/2021/09/anunavoidablesystem.pdf [https://perma.cc/9gg8-4kug]. 72 id. at 22–28. 73 teresa marrero, supra note 28. 74 jeanette vega brown, supra note 10. 2022] centering parent leadership 457 vi. centering parents in the movement the movement to abolish family policing is growing.75 yet while a dense ecosystem of organizations nationwide is dedicated to ending mass incarceration and abolishing prisons, our own movement is in an early season, just extending its roots and growing shoots. and, just as rise is in process with parents, we are sharing this piece to be in process with our wider organizing community. parents need to be in all spaces. that can and must become a reality. we recognize that few people and organizations are entirely dedicated to movement work, and that doing this work on the fly can make it difficult to do the work inclusively. the pressure to move fast conflicts with the importance of moving with intention, and the practices described here take resources, especially the resource of time. rise, too, lived in survival mode during years of working in a closet on an annual budget of less than $85,000 and then as we whipsawed through a period of rapid growth. it became easier to make space to work through conflicts and complexity when we had access to resources for facilitated group reflection, investment in staff skills-building, and even a physical office space that supported conversation. at a basic level, our team also felt the mental space to do the individual learning and exploring that propels innovation when there were practical reasons to feel secure in their jobs and rise itself. yet shifting the power dynamics of this movement must be everyone’s goal. as more impacted people, organizations, allies, and funders are recognizing the need for a robust movement to end family policing, active steps to center parents’ power and expertise must be our stepping stones forward. the broad dynamics will shift with every small footfall. as parents come into a training, coalition, or task force facilitated and convened by parents, they will learn from other parents impacted. the language used will be chosen by and for them. group norms will center their comfort. the power to invest in and center parents will be held by parents themselves. parents will set the agenda. allies will, increasingly, be allies. that is how parent power builds. to begin that cycle of shifting power, our growing movement must reckon with the dynamics that tokenize and marginalize parents. it must value the practices and investments that center parents. it must slow down to do the hard work of building a sustainable movement through parentled consciousness raising. halimah said: immediate results are unrealistic expectations when talking about people’s liberation. it’s up to us as people and a community to learn about what restorative justice, transformative justice and healing justice are. we tell ourselves we don’t have the time to do that work, but we have time to take away people’s freedom, humanity and 75 see, e.g., michael fitzgerald, rising voices for ‘family power’ seek to abolish the child welfare system, imprint (july 8, 2020), https://imprintnews.org/child-welfare2/family-power-seeks-abolish-cps-child-welfare/45141 [https://perma.cc/n5cf-pa24] (reporting on the voices that are “coalescing” into a movement). 458 colum. j. race & l. [vol. 12:436 connection. if we have time to do that, we have the time to do things differently.76 we must also look to parents who already are, and have been, leading this movement and putting abolitionist principles into practice throughout the country and even around the world. parents impacted by the system are developing legislation to support and protect families,77 and holding public office (like u.s. representative gwen moore of wisconsin).78 they are working on research to document the harms of the system in australia; protesting outside of family court in england; and building community, providing peer support, offering child care and sharing resources and information for advocacy in canada.79 while not all this work is explicitly termed abolitionist, parents impacted by the system are strategizing and advocating to reduce the power and harm of the system, and raising up solutions that exist outside of it, including by providing care and support to each other. parents bring the passion and commitment that form the foundation for mobilizing for justice. bianca wrote: “allies can never match what parents bring to the fight against a system that has caused you, your family, and your community deep harm.”80 as jeanette put it, “this movement for change is part of our souls.”81 imani wrote: going through what i went through with the family policing system, i had to really, really believe and advocate for myself during that time or else i would have lost my son. the threat of losing him gave me superpowers. it is what motivates me to fight to dismantle this system, to advocate for my people and my community.82 that said, imani added, “i feel like i’ve spent my whole life trying to convince people to see my humanity.”83 as we fight a system that strips parents of power, dignity, and humanity, it is our responsibility to ourselves and to each other to not replicate oppressive system dynamics that hurt us while we rebuild together. 76 halimah washington, supra note 20. 77 see, e.g., nora mccarthy, new york’s child welfare laws will advance justice, appeal (nov. 13, 2019), https://theappeal.org/new-yorks-child-welfare-laws-will-advancejustice/ [https://perma.cc/5qh6-grka]. 78 id. (“u.s. representative gwen moore of milwaukee . . . spoke on the u.s. house floor about her own experience, at age 18, of being separated from her daughter because of poverty”); press release, gwen moore, house of representatives, congresswoman gwen moore introduces poverty is not child neglect act (jan. 28, 2021), https://gwenmoore. house.gov/news/documentsingle.aspx?documentid=4711 [https://perma.cc/9md6-qu5d]. 79 int’l parent advoc. network & rise, toolkit for transformation, int’l parent advoc. network, https://toolkit.parentadvocacy.net/ [https://perma.cc/hh26-bvpt] (presenting research on the work of parents impacted in countries where “the child welfare parent advocacy movement has begun to gain a foothold”). 80 bianca shaw, supra note 43. 81 jeanette vega brown, supra note 10. 82 imani worthy, supra note 16. 83 id. i. introduction ii. the need to center parents in the movement to abolish family policing iii. barriers to parent movement leadership iv. changing culture: the rise experience v. centering parents’ political vision vi. centering parents in the movement columbia journal of race and law columbia journal of race and law vol. 11 july 2021 no. 3 foreword 11th annual symposium foreword: strengthened bonds: abolishing the child welfare system and re-envisioning child well-being nancy d. polikoff* & jane m. spinak† the 2001 book, shattered bonds: the color of child welfare, by dorothy roberts, called out the racism of the child welfare system and the harms that system perpetrates on families and communities. twenty years later, despite numerous reform efforts, the racism and profound harms endure. it is time for transformative change. in this foreword to the symposium strengthened bonds: abolishing the child welfare system and re-envisioning child well-being, honoring the 20th anniversary of shattered bonds, we highlight professor roberts’ articulation of her development as a family policing abolitionist and summarize the articles and comments contributed from scholars in numerous disciplines and well as impacted parents, family defense advocates and systemchange activists. these contributions help us learn from history and political theory; focus on the unique and shared circumstances of native american families; critique, and call for repeal of, much of current law; condemn the punitive, and racially disproportionate, surveillance of families; and demand a new approach that diverts the massive funding of the foster-care industrial * professor emerita of law, american university washington college of law. † edward ross aranow clinical professor of law, columbia law school. 428 colum. j. race & l. [vol. 11:427 complex into support, services, and healing for families, tribes, and communities. we call for abolition of the family regulation system, the term we use as a more accurate description of what is commonly called the child welfare or child protection system. we situate this call in the context of the more developed movement for prison abolition. the current system is predicated on seeing individual parents as a risk to their children. it fails to see the strengths and resilience of parents and families; the harms of surveillance and removal; and the structural forces that harm children by failing to invest in adequate housing, income, child care, health and mental health services, and educational opportunities for all families. abolition provides the transformative mind-set that will enable loving and strengthened families to raise happy, healthy, safe, educated, and imaginative children. 2021] foreword 429 i. introduction .......................................................................... 430 ii. the roots of this symposium .............................................. 434 iii. the articles in this issue ..................................................... 438 iv. situating this symposium in a larger context ................. 450 430 colum. j. race & l. [vol. 11:427 i. introduction state removal of children from their parents is an act of violence and cruelty. that is why the trump administration faced near universal condemnation for its 2018 policy of separating parents and children at the us-mexico border.1 with this symposium, strengthened bonds: abolishing the child welfare system and re-imagining child well-being, we call attention to the enduring, devastating, american practice of separating parents and children through state agency and court procedures cloaked under the misleading name of the child welfare system. those family separations are no less traumatic and consequential than the ones that were denounced at the usmexico border, and they will be harder to end. the articles and comments in this and the subsequent symposium issue seek to contribute to abolishing the system that allows those separations to continue, and to reimagining and replacing it with policies and practices that facilitate the flourishing of all children within their families, tribes, and communities. twenty years ago, in shattered bonds: the color of child welfare, law professor dorothy roberts systematically dismantled any pretense that the child welfare system functions to serve the interests of children.2 through data, documentation, history, analysis, and family narratives, professor roberts called out the racism at the heart of a system that has destroyed hundreds of thousands of families. “if you came with no preconceptions about the purpose of the child welfare system,” she wrote, “you would have to conclude that it is an institution designed to monitor, regulate, and punish poor black families.”3 professor roberts built on earlier analyses of child protection intervention that identified poverty as the leading reason for the state removing children from their families, and on the long legacy of early progressive activists’ efforts to assimilate immigrant families who were a threat to “american” norms by conditioning assistance on intrusive and punitive interventions 1 maggie jo buchanan et al., the trump administration’s family separation policy is over ctr. am. progress (april 12, 2021), https://www .americanprogress.org/issues/immigration/reports/2021/04/12/497999/trumpadministrations-family-separation-policy [https://perma.cc/g36t-k5kp]. 2 dorothy e. roberts, shattered bonds: the color of child welfare (2001). 3 id. at 6. 2021] foreword 431 in their lives.4 even before this late 19th century progressive effort began, the legally sanctioned destruction of native american families was already operating—a systemic genocide that has yet to abate fully.5 all of these practices are rooted in the idea of saving children from their families and communities.6 the strengthened bonds symposium honors the 20th anniversary of this groundbreaking book and showcases professor roberts’ contemporary assessment, as articulated in her keynote address, how i became a family policing abolitionist, that family policing—the term she now uses in place of the child welfare system—is an arm of the racist carceral state and must end. we agree with professor roberts that new terminology is in order. the term child welfare system is misleading, as is the equally recognized child protection system. the system these terms denominate does not protect nor support child well-being, and too often perpetrates harm on children, families, and communities. while the term foster care system is equally problematic—as it elides the documented harms children have experienced upon removal from their families—it has been easy to replace the term foster care system with foster system and to refer to placement in foster homes rather than foster care.7 scholars and advocates have had more difficulty coming up with terminology to replace the child welfare system. professor roberts, as noted earlier, has chosen family policing. the terminology we believe best captures the operation of this system is the family regulation system, a term first coined by emma williams in her oberlin college honors thesis.8 this term 4 leroy h. pelton, the role of material factors in child abuse and neglect, in protecting child from abuse and neglect 131 (gary v. melton & frank d. barry eds., 1994); barry c. feld, the evolution of the juvenile court 22–25 (2017). 5 laura briggs, taking children: a history of american terror, 46–75 (2020). 6 see anthony m. platt, the child savers: the invention of delinquency (40th ed. 2009). 7 see generally shanta trivedi, the harm of child removal, 43 n.y.u. rev. l. & soc. change 523 (2019). 8 see emma williams, ‘family regulation,’ not ‘child welfare’: abolition starts with changing our language, imprint (july 28, 2020), https:// imprintnews.org/opinion/family-regulation-not-child-welfare-abolition-startschanging-language/45586 [https://perma.cc/c45s-zph6]. the term is also 432 colum. j. race & l. [vol. 11:427 was quickly adopted by many advocates, system-involved parents, and academics.9 family regulation reflects the pervasive impact legally-constructed agencies and courts have on every aspect of the families they touch. from the school report that a child was hungry, to the knock on the door in the middle of the night to check the refrigerator, to further prolonged investigations, to agency or court mandated supervision, to removal of children temporarily or permanently, family behavior consistent with wendy bach’s use of the term hyperregulation to mean that “its mechanisms are targeted by race, class, gender, and place to exert punitive social control over poor, african-american women, their families, and their communities.” wendy a. bach, flourishing rights, 113 mich. l. rev. 1061, 1073 (2015). 9 see rise, ‘abolition is the only answer’: a conversation with dorothy roberts, (oct. 20, 2020), https://www.risemagazine.org/2020/10/conversationwith-dorothy-roberts (“we’ve challenged terms that give a false impression of what the system does. now, we are exploring different descriptions of it. one is ‘family regulation’ because the government is regulating families through laws and policies that address families’ needs by threatening to take children away. even when they don’t take children away, they impose all sorts of requirements on families instead of support and providing for families.”); chris gottlieb, black families are outraged about family separation with the us. it’s time to listen to them, time, (mar. 17, 2021) https://time.com/5946929/child-welfare-blackfamilies [https://perma.cc/xjn7-6jl5] (“it is time to call the ‘child welfare system’ what it is: a ‘family regulation system.’”); molly schwartz, do we need to abolish child protective services?”, mother jones (dec. 10, 2020), https://www.motherjones.com/politics/2020/12/do-we-need-to-abolish-childprotective-services [https://perma.cc/4h7w-dz7x] (citing parent advocate and activist joyce mcmillan); martin guggenheim, how racial politics led directly to the enactment of the adoption and safe families act of 1997—the worst law affecting families ever enacted by congress, 11 colum. j. race & l. 711, 714 n.3 (2021) (“it is not, and never has been, a ‘child welfare system.’ . . . [c]hild welfare is not even within the portfolio of any so-called ‘child welfare commissioner’ [who] would surely have in her portfolio the authority to investigate all situations in which children’s welfare are placed at risk. but no commissioner has the authority, for example, to address lead paint poisoning in public housing, or the rigging of lead level in the public schools . . . it literally is a family regulation system, exclusively.”); ava cilia, the family regulation system: why those committed to racial justice must interrogate it, harv. c.r.c.l. l. rev. amicus (feb. 21, 2021) https://harvardcrcl.org/the-familyregulation-system-why-those-committed-to-racial-justice-must-interrogate-it [https://perma.cc/2ptw-vj3h]. other possible terms, all more accurate than child welfare system are family destruction system, see rise supra, and child removal system, see robert latham, a starter reading list on how child welfare policies harm black people, families, and communities, (june 12, 2020), https://robertlathamesq.org/a-starter-reading-list-on-how-child-welfarepolicies-harm-black-people-families-and-communities [https://perma.cc/8j5zhfnk] (“the child welfare system has nothing to say about anti-black state violence because the child removal system engages in it daily.”). 2021] foreword 433 is surveilled and regulated. this comes at great cost to families, generally with little or no benefit—indeed sometimes great harm—to children. when we speak of the existing child welfare, or family regulation, system, we are referring to a regime of public, private, and faith-based agencies and institutions, courts, and individuals authorized by force of law to surveil and intervene in families, remove children from their parents temporarily or permanently, terminate the parent-child relationship, and create new legal families. child removal is not the end result of all interventions by the family regulation system, but parental interaction with anyone in that system takes place under the specter of possible child removal and loss of parental rights. when children are removed from their families, they are generally placed in a massive foster system in which the state provides vastly more money and assistance to strangers to raise other people’s children than it is willing to provide parents to raise their own children.10 it is the coercive power of the state to intervene in and ultimately destroy families that distinguishes the so-called child welfare system and its actors from any other existing or envisioned system of providing assistance to families to promote the well-being of their children. the current family regulation system is predicated on seeing the individual families who come within its grip as presenting the problems to be addressed. it purports to address those problems through surveillance, intervention in family life, deep reliance on removing children, and providing services to families that rarely support their complex needs. this approach fails to recognize or embrace the strengths of families and communities. the family regulation system has become an ineffective and harmful substitute for the more fundamental need to invest in families, communities, and tribes in order to ensure adequate housing, income, child care, health and mental health services, and educational opportunities for all families. 10 compare ali safawi & ife floyd, tanf benefits still too low to help families, especially black families, avoid increased hardship, ctr. budget & pol’y priorities (oct. 8, 2020), https://www.cbpp.org/sites /default/files/atoms/files/10-30-14tanf.pdf [https://perma.cc/w9nh-3yjp] (“temporary assistance for needy families” (tanf) payments), with peeples, getting paid to be a foster parent: state-by-state monthly guide, we have kids (july 23, 2020), https://wehavekids.com/adoption-fostering/what-does-being-afoster-parent-really-pay [https://perma.cc/9hhd-wdpc] (foster care payments). 434 colum. j. race & l. [vol. 11:427 these investments strengthen communities so they have the ability to support and assist themselves. even the most recent federal legislation, the family first prevention services act, which purports to shift services for families into community-based agencies, applies only to children who are “candidates” for foster care but could remain safely in their homes with preventive services.11 this means families cannot just appear at a community agency and say they need some assistance. they must first submit to state surveillance and obtain a determination that without services their child “would be at imminent risk of entering foster care,” a condition that exposes them to continued state monitoring and that most families in need of some assistance would contest.12 in other words, this law, widely heralded for its focus on keeping families together, actually requires a parent who wants substance abuse treatment, for example, to voluntarily submit to the very system that has the power to remove her children and ultimately terminate her parental rights. that is the essence of a family regulation system. ii. the roots of this symposium since the very formation of a governmental family regulation system—first in the creation of the original juvenile court and later in the development of federally funded state child protection agencies—advocates, lawyers, judges, scholars, policy makers, activists, parents, and children have written and spoken about the defects in, and harms inflicted by, this system. historic and current critics have identified myriad substantial and seemingly intractable concerns: the trauma of separating children and parents; vague standards of child maltreatment; 11 42 u.s.c. §671 (a) (“in order for a state to be eligible for payments under this part, it shall have a plan approved by the secretary which . . . provides for foster care maintenance payments in accordance with section 472, adoption assistance in accordance with section 473, and, at the option of the state, services or programs specified in subsection (e)(1) of this section for children who are candidates for foster care or who are pregnant or parenting foster youth and the parents or kin caregivers of the children, in accordance with the requirements of that subsection”). 12 42 u.s.c. §675 (13) (defining a child whose family is eligible for family first prevention services as one “who is identified in a prevention plan . . . as being at imminent risk of entering foster care . . . but who can remain safely in the child’s home or in a kinship placement as long as services or programs . . . that are necessary to prevent the entry of the child into foster care are provided.”). 2021] foreword 435 misidentifying poverty as neglect; the impact of increasing income inequality and the ever-more-frayed safety net; misdiagnoses of child abuse; the failure to distinguish and address the far smaller number of serious cases of physical and sexual abuse from the vast number of cases based largely on poverty and inequities in families’ lives; downsides of mandatory and anonymous reporting of suspected child maltreatment; devastating and unneeded consequences of child abuse registries; inadequate mental health and substance abuse treatment; failure to create effective and often material services; denying services that are legally mandated to prevent child removal or reunite families who have been separated; the demonization of mothers and the disregard of fathers; the role of the courts in perpetuating inequality and injustice; drawing families under court supervision to receive services; widespread due process violations; inadequate, untimely, and ineffective legal representation; inappropriate family reunification requirements; financial incentives for foster placements and adoptions but not for family reunification; the priority of adoption over other permanency options; the vast funding of the foster-care industrial complex while limiting support to families; mistreatment of, and bad outcomes for, children in foster homes; unrelenting, ongoing, structural racism, seen especially in the devaluing of the relationships between black mothers and their children; and the failure to see and seek solutions within those communities most affected by family regulation.13 since the publication of shattered bonds at the beginning of this century, there have been efforts to ameliorate these defects and reduce these harms. these efforts have been focused, for the most part, on making the current family regulation system work better without fundamentally challenging its 13 see generally roberts, supra note 2; martin guggenheim, what’s wrong with children’s rights (2005); tina lee, catching a case: inequality and fear in new york city’s child welfare system (2016); don lash, when the welfare people come: race and class in the u.s. child protection system (2017); mical raz, abusive policies: how the american child welfare system lost its way (2020); diane l. redleaf, they took the kids last night: how the child protection system puts families at risk (2018); victoria law & maya schenwar, prison by any other name: the harmful consequences of popular reforms 115–140 (2020); jane m. spinak, when great ideas fail: family court and the dangers of doing good (forthcoming n.y.u. press) (provisional title) (on file with author). 436 colum. j. race & l. [vol. 11:427 premises. meanwhile, state and federal funding for the current system has more than tripled.14 strengthened bonds: abolishing the child welfare system and re-envisioning child well-being has provided an opportunity to critique this approach and to consider radical change to re-imagine how society cares for and protects children while honoring their bonds to their families and communities. most centrally, radical change recognizes the societal responsibility to invest in universal and mutual support systems in communities, tribes, and neighborhoods to enable families to flourish and thrive. less than three weeks after we issued the call for papers for this symposium, a minneapolis police officer murdered george floyd, a murder that 17-year-old darnella frazier captured on video and broadcast to the world. the mass protests and uprisings that followed, in cities and towns around the country, brought systemic racism to the forefront of american consciousness at a time when the covid-19 pandemic was disproportionately devastating black, indigenous, and people of color (bipoc) communities. the demonstrators also turned the demand for police and prison abolition—a movement decades in the making—into a serious topic of mainstream conversation. reconsidering how systemic racism and white supremacy impact the purposes and practices of traditional institutions was legitimized in ways that hadn’t been widespread throughout the country since the civil rights movement. in our call for papers, we acknowledged the prison abolition movement. we commended its vision of replacing imprisonment, policing, and surveillance with alternatives that respond effectively to harm without putting people in cages or increasing the prison industrial complex, and that instead create and support healthy, stable families and communities.15 we identified the parallels between the criminal legal system and the family regulation system. most obviously, both systems trace their practices to colonization and slavery, mass immigration and displacement of native populations, and the resulting and lasting inequities that have ensued and continue to 14 compare roberts, supra note 2 (placing the funding at $10 billion) with kristina rosinsky et al., child welfare financing sfy 2018: a survey of federal, state, and local expenditures 1 (2021) [https://perma .cc/7ges-mba3] (placing 2018 funding at $33 billion). 15 see mission, critical resistance, http://criticalresistance.org /about [https://perma.cc/r2zz-wcmc] (last visited june 20, 2021). 2021] foreword 437 disproportionately target bipoc communities, as well as predominantly low-income families. we also recognized that the prison abolition movement had produced a robust body of scholarship, and we stated our aspiration that this symposium would generate equally insightful, imaginative, and impactful scholarship in support of abolishing the family regulation system and creating a radically new approach to child well-being. the response to our call for papers was overwhelming. we received more than 100 proposals, including from scholars in law, sociology, anthropology, political science, history, gender studies, public health, medicine, social work, and education. equally impressive were the proposals from practicing lawyers, social workers, parent advocates, and clinicians; policy advocates, activists, and journalists; and from parents who had been regulated by and even lost their children to the state, and from young adults who had been foster youth. the editorial board of the columbia journal of race and law agreed with the importance of this initiative, and committed to dedicating two issues to symposium articles and comments, and, to capture as much of the interest as possible, we severely limited the length of submissions. even so, we could accept only a third of the proposals we received. most of the pieces accepted for the first issue are contained in this volume, while some appear in the journal’s exclusively online publication, the columbia journal of race and law forum. we captured several additional voices in blog posts published on the journal’s website in the months leading up to the symposium.16 16 see, e.g., every mother is a working mother network et al., defund the family policing system: fund mothers and other primary caregivers, colum. j. race & l. blog (feb. 13, 2021), https://journals.library.columbia.edu /index.php/cjrl/blog/view/309 [https://perma.cc/e7ux-typj]; maya pendleton, making possible the impossible: a black feminist perspective on child welfare abolition, colum. j. race & l. blog (feb. 20, 2021), https://journals.library. columbia.edu/index.php/cjrl/blog/view/311 [https://perma.cc/7d3x-ucu2]; brittney frey, re-envisioning the child welfare system with a cup of a science, a spoonful of law, and a gallon of love, colum. j. race & l. blog (feb. 21, 2021), https://journals.library.columbia.edu/index.php/cjrl/blog/view/312 [https: //perma.cc/p6m3-6sgs; shannan wilber & maribel martínez, supportout: promoting the well-being of lgbtq youth of color in their homes, school, and communities, colum. j. race & l. blog (feb. 25, 2021), https://journals.library .columbia.edu/index.php/cjrl/blog/view/315 [https://perma.cc/22fc-bpvw]; 438 colum. j. race & l. [vol. 11:427 iii. the articles in this issue given the vast reach of the family regulation system and the breathtaking scope of the critiques, no symposium could address every systemic flaw or imagine every scenario for a future in which children are fully supported in their families, tribes, and communities.17 the articles and comments that follow in this issue, and those that will appear in the second symposium issue, reflect an abolitionist stance that we hope will inform scholarship, advocacy, and activism to come. several examine the historical context of family regulation, including the deep roots of slavery and native american genocide. without exploring those historical origins—as contributor addie rolnick notes—we suffer from a “failure of memory” that allows us to forget that “what we imagine as benevolent, helpful systems [were] originated as ways to control, eradicate, or confine disfavored populations.”18 dorothy roberts, in her keynote address, how i became a family policing abolitionist, identifies the three developments that led her to advocate for abolition: the dismal track record of supposed reforms; the growth of the prison abolition movement; esther anne & penthea burns, truth, healing, and change in the dawnland, colum. j. race & l. blog (mar. 4, 2021), https://journals.library.columbia. edu/index.php/cjrl/blog/view/317 [https://perma.cc/73zp-8g4c]; leyda garciagreenawalt, guilty: how immigrating to the united states became a life sentence to child welfare, colum. j. race & l. blog (mar. 19, 2021), https://journals.library.columbia.edu/index.php/cjrl/blog/view/319 [https://perma.cc/9et6-shsa]. 17 we also acknowledge previous law review symposia that have provided significant critiques of the current system. see, e.g., cuny law review’s spring symposium: “reimagining family defense”, cuny l. rev. (may 1, 2016), http://www.cunylawreview.org/cuny-law-review-springsymposium/#more-2327 [https://perma.cc/hc37-un5s]; elie hirschfeld symposium on racial justice in the child welfare system transcript, 44 n.y.u. rev. l. & soc. change 129 (2019). achieving justice: parents and the child welfare system, fordham l. rev., http://fordhamlawreview.org /symposiumcategory/achieving-justice-parents-and-the-child-welfare-system [https://perma.cc/25ej-l3rq] (last visited june 21, 2021); the articles contained in 70 fordham l. rev. 1–458 (2001) and 21 brook. j. l. pol’y 1–153 (2012). 18 addie rolnick, assimilation, removal, discipline, and confinement: native girls and government intervention, 11 colum. j. race & l. 811, 823 (2021). 2021] foreword 439 and the increase in organizing by parents and youth affected by the system.19 twenty years of reform efforts, some of which professor roberts participated in, have taught her that trying to reform a system can legitimate and strengthen it without changing its punitive ideology or racist impact. she writes that “we can’t tinker with the flaws of a system designed at its roots to police poor, black, indigenous and other marginalized families as a way of maintaining a racial capitalist system.”20 professor roberts draws extensively on the work of prison abolitionists, applying abolitionist analysis to family policing and concluding that the system cannot be fixed. “instead,” she writes, “we need a paradigm shift in the state’s relationship to families—a complete end to family policing by dismantling the current system and reimagining the very meaning of child welfare.”21 she cautions that funds divested from police should not go to enriching family policing, and she admonishes prison abolitionists who fail to recognize how the family policing system surveils and represses black and other marginalized communities in ways that are similar to law enforcement systems. finally, professor roberts has been influenced by the rise of parent and youth groups that have organized to demand and implement transformative change as well as the rise of multi-disciplinary, holistic parent defense offices to challenge family policing practices.22 again borrowing from the reasoning of prison abolitionists, professor roberts advocates “non-reformist reforms,” those that shrink the state’s capacity to destroy families.23 these can include ending mandatory reporting—the requirement that persons in certain occupations report any suspected child maltreatment to the states; providing highquality, multidisciplinary legal defense to parents at every stage of the process, including before their children are removed; and organizing for community-based mutual aid. professor roberts’ contribution to this symposium previews the history, analysis, 19 dorothy e. roberts, how i became a family policing aboltionist, 11 colum. j. race & l. 455 (2021). 20 id. at 460. 21 id. at 464. 22 id. at 465. 23 id. (citing dan berger, mariame kaba & david stein, what abolitionists do, jacobin (june 24, 2017), https://www.jacobinmag.com/2017/ 08/prison-abolition-reform-mass-incarceration [https://perma.cc/c55s-5gel]. 440 colum. j. race & l. [vol. 11:427 and arguments she develops more fully in her forthcoming book, provisionally entitled, torn apart: how the child welfare system destroys black families—and how abolition can build a safer world. two articles were crafted, in part, as responses to professor roberts’ keynote themes. gwendoline m. alphonso, in political-economic roots of coercion—slavery, neoliberalism, and the racial family policy logic of child and social welfare, contrasts two distinctive standards applied to black and white motherhood during the last two centuries: the black economic utility standard versus the white affective family standard.24 the ante-bellum period valued black women for what they could contribute to the accumulation of white wealth but valued white women for what they could contribute to their own families. postbellum policies compelled black women to work rather than care for their children and twentieth century financial supports first went only to white mothers. the later expansion of supports that included black families came with punitive work requirements that to this day are implemented most coercively against black mothers. today’s punitive child welfare and social welfare policies will not end, she argues, as long as we perpetuate this multi-century devaluation of the affective and nurturing labor performed by black mothers. professor laura briggs, in twentieth century black and native activism against the child taking system: lessons for the present, recalls mid-twentieth century activism against state removal of black and native families.25 in direct response to brown v. board of education,26 southern states implemented “suitable home” rules that resulted in the removal of tens of thousands of black families from public financial assistance, a move specifically designed to get black families to flee the south so that schools could remain segregated. families who could not feed their children were then subjected to the possibility of child removal. in louisiana in particular, this resulted in a national urban league call to “feed the babies,” both through mutual aid 24 gwendoline m. alphonso, political-economic roots of coercion— slavery, neoliberalism, and the racial family policy logic of child and social welfare, 11 colum. j. race & l. 471 (2021). 25 laura briggs, twentieth century black and native activism against the child taking system: lessons for the present, 11 colum. j. race & l. 611 (2021). 26 347 u.s. 483 (1954). 2021] foreword 441 and through state support.27 but the urban league pivoted from a radical call to support families to a reform approach through the social security administration, resulting in a rule that states could not deny benefits to children in “unsuitable homes” unless it also removed those children and placed them elsewhere. instead of funding family support, the resultant federal laws in 1961–62 funded foster homes for removed black children. in the first year alone, 150,000 black children were removed from their families.28 turning to native american families, professor briggs notes that child-taking was a feature of state policy against native american tribes, both to extinguish land claims and to punish non-nuclear forms of child-rearing. native activism sought tribal control of child welfare matters, and gained a victory—one under persistent attack29—in the passage of the indian child welfare act (icwa) in 1978. briggs sees the community control intrinsic to icwa as a principle worth considering beyond the native context, but she also cautions that widespread native child removal endures, and that activists’ contemporaneous call for support to families went unfunded. professor brigg’s call for caution is well heeded in the three articles that consider the sordid history of native american family destruction in the name of child protection. while the authors pause to consider the potential in icwa to reimagine the relationship between family regulation and native american families, the first four decades of icwa’s existence have not undone that legacy of destruction. in abolition, settler colonialism, and the persistent threat of indian child welfare, theresa rocha beardall and frank edwards calculate whether icwa has diminished the prevalence and frequency of native family separation after 27 id. at 625. 28 id. at 627–29. 29 see braacken v. haaland, 994 f.3d 249 (5th cir. 2021) (en banc). for an explanation of the history and impact of the decision, see erin dougherty lynch & dan lewerenz, brackeen v. bernhard—indian child welfare act, native am. rts. fund (apr. 6, 2021), [https://perma.cc/kpf5-tsnk] and native am. rts. fund, brackeen v. bernhard: that one big icwa case (last visited june 21, 2021) [https://perma.cc/3luc-crwl] (graphic breaking down the impact of the decision on current cases). 442 colum. j. race & l. [vol. 11:427 centuries of systemic genocide under federal authority.30 their empirical analysis establishes that despite the intention of icwa to “address and ameliorate” family separation of native peoples, native children and families today remain at higher risk of separation than any other group in the country.31 icwa was intended to eliminate two practices. the first was the long history of removing native american children from their families and tribes and sending them to bureau of indian affairs “boarding schools” to strip them of their native customs and beliefs. the second was federal adoption programs created specifically to have native children adopted by non-native families. instead, “the magnitude of native family separation through the child welfare system has substantially increased since the passage of icwa.”32 they conclude that only funding that delinks federal regulatory authority, and prioritizes redirecting social and financial resources into the control of native families and tribal communities, will stop the routine separation of native children from their families. in assimilation, removal, discipline, and confinement: native girls and government intervention, addie rolnick evokes the voices of native girls and women to humanize the terrible numbers beardall and edwards calculate.33 native families and tribes always resisted the kidnapping of their children. in the era of the boarding schools, they were fearful not only of the physical and emotional trauma of separation for families, but also the physical and psychological violence at the institutions intended to assimilate native children away from native culture and practices. when the boarding school era ended, its impact remained. generations of native families had been traumatized and their parenting practices devalued, leading to conditions that have enabled non-native child protection and juvenile justice systems to police native children. rolnick believes a “failure of imagination” has permitted on-going punitive family regulation practices to retraumatize native families rather than embracing 30 theresa rocha beardall and frank edwards, abolition, settler colonialism, and the persistent threat of indian child welfare, 11 colum. j. race & l. 533 (2021). 31 id. at 550. 32 id. at 552. 33 rolnick, supra note 18. 2021] foreword 443 native family and tribal practices that can protect children and stop the criminalization of trauma.34 lauren van schilfgaarde and brett lee shelton highlight one native practice that can help transform current tribal child welfare systems in using peacemaking circles to indigenize tribal child welfare.35 situating their concerns in the lasting impact of destructive federal “child saving” practices against native families, they stress the differences between parental rights and parental responsibilities in native and western legal systems.36 the extended family and community of native peoples responsible for children are contrasted with the individual and adversarial nature of parental rights to children in the american legal system. the pressure on tribal child welfare systems to assimilate to western forms of legal determinations has been reinforced by federal funding mechanisms which mandate substantial compliance with federal laws that continue to disrupt native families. the authors, van schilfgaarde and shelton, herald an indigenous family system that encompasses a world view of “responsibilities, relationships, reciprocity, and respect” which orients around duties owed to children.37 they recommend the “collaborative and supportive problem-solving” circle practices to augment resilience in children and parents and to involve extended family and community to create social and spiritual engagement and support.38 although not represented in the scholarship in this issue, we chose to screen the film dawnland as part of this symposium, highlighting additional native experiences and practices.39 dawnland documents the work of the maine wabanaki-state child welfare truth and reconciliation commission (trc), the first government-sponsored trc in the united states. the commission gathered testimony and issued a report on the impact of maine’s child removal practices on families in the state’s maliseet, micmac, passamaquoddy, and penobscot tribal 34 id. at 823. 35 lauren van schilfgaarde & brett lee shelton, using peacemaking circles to indigenize tribal child welfare, 11 colum. j. race & l. 681 (2021). 36 id. at 688–90. 37 id. at 703. 38 id. at 708. 39 dawnland, upstander project https://upstanderproject.org/ dawnland [https://perma.cc/y8m5-thu5] (last visited june 21, 2021). 444 colum. j. race & l. [vol. 11:427 communities.40 wabanaki reach, the native organization that conceptualized the trc process and supported the individuals and families who participated in it, continues to work for the selfdetermination of the wabanaki people and to advocate truthtelling as a restorative process necessary for healing and change.41 four articles explore several of the principal federal statutes that structure the current family regulation system: the 1974 child abuse prevention and treatment act (capta), the 1997 adoption and safe families act (asfa), and the 2018 family first prevention services act (family first). the authors conclude that the first two laws must be repealed and that the most recent law—while laudably aimed at reducing child removals—continues investment in the current family regulation system. angela burton and angeline montauban, in toward community control of child welfare funding: repeal the child abuse prevention and treatment act and delink child protection from family well-being, place montauban’s story, as a mother whose child spent five years in the foster system, in the context of the larger foster care industrial complex, a multi-billion dollar industry that presumes black parents are a danger to their children and perpetuates itself by the harmful practice of removing children from their families.42 montauban faced a child protective services investigation after she called a widely advertised domestic violence hotline for protection from intimate partner violence. her son was removed to a foster home, and she faced retaliation for raising concerns about his care and the agency’s actions. she was also subjected to unnecessary mental health evaluations, a direct outgrowth of the flawed underpinnings of capta, which look to individual parental 40 beyond the mandate: continuing the conversation: report of the maine wabanaki –state child welfare truth and reconciliation commission (2015) [https://perma.cc/25e3-wp6q]. 41 wabanaki reach, what we do, https://www. mainewabanakireach.org [https://perma.cc/t64t-r2wk] (last visited june 21, 2021). see anne & burns, supra note 16. 42 angela burton & angeline montauban, toward community control of child welfare funding: repeal the child abuse prevention and treatment act and delink child protection from family well-being, 11 colum. j. race & l. 639 (2021). 2021] foreword 445 deviance rather than structural inequities to explain children’s circumstances. burton and montauban extensively critique mandatory reporting, and they decry the harm of embedding agencies filled with mandatory reporters in black communities. they call for an end to mandatory reporting, as well as the prosecuting of poverty by calling it neglect. instead, they herald reparations in the form of redirecting the massive funding of the foster care industrial complex to social support programs and community resources. martin guggenheim, in how racial politics led directly to the enactment of the adoption and safe families act of 1997— the worst law affecting families ever enacted by congress, agrees with burton and montauban.43 guggenheim posits that current law reflects a pernicious belief that black parents are an inherent danger to their children, and he describes the racism that littered the path to the enactment of asfa. proposals to end poverty through wealth redistribution failed in the johnson and nixon administrations because direct support to black families— seen as pathological and undeserving—was politically unfeasible. refusal to index welfare payments to keep up with inflation, as the government does with social security payments, further doomed efforts at poverty reduction. racial politics became more explicit under reagan, including the enactment of racially discriminatory drug laws, setting the stage for clinton ending guaranteed public assistance and dehumanizing black children as “superpredators.”44 in that racially-charged context, asfa was enacted by the clinton administration in 1997, to mandate termination of parental rights when a child was in out-of-home care for more than 15 months. a parent’s faults rather than the structural problems caused by poverty were identified as the reason behind the family’s failure to reunify. although private family law routinely maintains children’s connections to noncustodial parents, asfa permanently severs familial connections, a result guggenheim argues was only acceptable because black families were viewed as inherently dangerous. although guggenheim locates asfa firmly within the history of american racism, he provocatively asks whether the efforts to repeal it should focus 43 guggenheim, supra note 9. 44 id. at 727. 446 colum. j. race & l. [vol. 11:427 on racism, or whether, given afsa’s destruction of vast numbers of white families as well, advocates pressing for repeal should focus instead on the act’s harms to all families. a multi-authored article from impacted mothers, community organizations, and allied advocates, ending the family death penalty and building a world we deserve, also demands repeal of asfa, deemed the family death penalty for its mandated termination of parental rights.45 authors ashley albert, tiheba bain, elizabeth brico, bishop marcia dinkins, kelis houston, joyce mcmillan, vonya quarles, lisa sangoi, erin miles cloud, and adina marx-arpadi center the voices of mothers organizing for transformative and lasting change. their contribution highlights “the underlying oppressive ideologies which gave rise to such [a] violen[t]” law, and urges “engaging in a praxis of imagination, healing and building” to achieve transformation.46 their article describes movement building, developing alliances with indigenous communities impacted by child removal, learning from the prison abolition movement, and looking toward individual healing as well as collective reparations. most fundamentally, the authors ask us to embrace their ideas “not [as] prescriptive,” but “as a time of thinking between a group of women envisioning and embodying change.”47 miriam mack, in the white supremacy hydra: how the family first prevention services act reifies pathology, control, and punishment in the family regulation system, critiques family first, the recent law touted for its emphasis on family preservation.48 family first allows states to use federal funds previously earmarked for children in the foster system for services to families to prevent child removal. mack argues that the law leaves in places the pillars of the family regulation system: pathology, control, and punishment. specifically, family first focuses on individual behavior modification, but does nothing to provide housing, food, and other material resources to families in need; it continues intense monitoring and supervision of families with the specter of child removal; and it perpetuates 45 ashley albert et al., ending the family death penalty and building a world we deserve, 11 colum. j. race &. l. 861 (2021). 46 id. at 867. 47 id. at 868. 48 miriam mack, the white supremacy hydra: how the family first prevention services act reifies pathology, control, and punishment in the family regulation system, 11 colum. j. race & l. 767 (2021). 2021] foreword 447 the foster system, termination of parental rights, and financially incentivized adoption. mack acknowledges that it is too soon to know if family first will reduce forced family separation. although it will be an improvement if it does so, it is not a radical reordering of the family regulation system. that, she argues, will come from implementing principles adapted from the prison abolition movement to steer change in the direction of nonreformist reforms. surveillance in the family regulation system is a frequent theme throughout this volume, with the strongest critique reserved for mandatory reporting. although only a small percentage of mandated reports are deemed credible, mandatory reporting subjects millions of parents to intrusive and traumatic investigations; over fifty percent of black children are subjected to a family regulation investigation in their lifetime.49 in the surveillance tentacles of the child welfare system, charlotte baughman, tehra coles, jennifer feinberg, and hope newton examine how mental health and social service providers, schools, and police feed families into the family regulation system.50 they note the harm of removing a child to the foster system, but they emphasize that investigations and mandating services as an alternative to removal also harm families by disrupting them without providing the material support that families need. ultimately, they call for increased cash assistance, access to safe and affordable housing, and other needed services and support outside the surveillance model of the family regulation system. mandatory reporting in schools and the medical profession are explored in two articles. in reimagining schools’ role outside the family regulation system, brianna harvey, josh gupta-kagan, and christopher church scrutinize how educational personnel are the leading drivers of child maltreatment reports, yet these reports are least likely to need further investigation and, when investigated, least likely to be substantiated.51 these reports overwhelm the child welfare system with unnecessary allegations of maltreatment and they 49 charlotte baughman et al., the surveillance tentacles of the child welfare system, 11 colum. j. race & l. 501, 509 (2021) (citing hyunil kim et al., lifetime prevalence of investigating child maltreatment among us children, 107 am. j. pub. health 274 (2017)). 50 id. 51 brianna harvey et al., reimagining schools’ role outside the family regulation system, 11 colum. j. race & l. 575 (2021). 448 colum. j. race & l. [vol. 11:427 disproportionately affect black children. the authors note that school personnel believe, mostly incorrectly, that a report will result in child protective services providing needed support to families. instead, intrusive, unnecessary investigations focus on parental fault, creating a strained relationship between families and schools. they propose an alternative vision for schools, one in which only severe child maltreatment is subject to reporting and schools become hubs to link families to public benefits, legal services, and mental health care entirely outside of child protective service agencies. clara presler, in mutual deference between hospitals and courts: how mandated reporting from medical providers harms families, also urges an alternative to mandatory reporting, this time for medical providers and hospitals. statutes and regulations explicitly guide medical professionals to report to the state any “reasonable suspicion” of child maltreatment but the reporter is not tasked with any further investigation or response.52 in this way, hospitals defer to state officials to conduct the investigations and take action. there are legal and financial penalties for failure to report and there is immunity for making reports that turn out to be unfounded, all further incentivizing reporting. clinicians’ opinions vary widely on what level of likelihood of abuse amounts to reasonable suspicion, and they are often influenced by nonmedical factors that involve race and class bias. although the court must find “imminent risk” to the child to remove the child from the home, the judge making that initial decision routinely lacks any additional information, relying on the hospital’s initial report and deferring to the medical provider’s “reasonable suspicion.”53 this effectively turns “reasonable suspicion” into a finding of “imminent risk.”54 pressler includes examples from her practice as a family defender, where families were separated as a result of this practice of mutual deference, causing lasting harm even though the families were eventually reunified. similar to the call for ending mandatory school reporting, ending mandatory medical 52 clara presler, mutual deference between hospitals and courts: how mandated reporting from medical providers harms families, 11 colum. j. race & l. 733 (2021). 53 id. at 756. 54 id. 2021] foreword 449 reporting, she argues, would realign the doctor-patient relationship, allow for referrals directly to supportive community programs, and redirect resources from state-sanctioned violence to therapeutic interventions. the articles in this issue have been supplemented by two comments that appear in the columbia journal of race and law forum, the exclusively online companion to the journal’s print pieces. victoria copeland furthers our understanding of the surveillance function of the family regulation system in her comment, “it’s the only system we’ve got”: exploring emergency response decision-making in child welfare, reporting the results of her qualitative research interviewing frontline investigative caseworkers in four urban counties.55 copeland examines the paradoxical role of caseworkers as helpers and investigators in surveillance practices that require multi-agency collaborations with law enforcement, schools and hospitals. the caseworkers acknowledge their discomfort in extending “government eyes” or additional demands on families, especially those that are resistant or uncooperative with investigations, because of their fear of missing something.56 the caseworkers are also ambivalent about using historical and current data readily available to them from multiple government sources, which increases “cycle[s] of subjectivity” about families and further entrenches them in “a diffuse matrix of power.”57 copeland warns that the increased use of predictive analytics and artificial intelligence by multiple government agencies in child protection decision-making must be tempered by increasing the caseworkers’ abilities to find “alternative ways of supporting child safety without the surveillance and policing tactics.”58 j. khadijah abdurahman, in calculating the souls of black folk: predictive analytics in the new york city administration of children’s services, interrogates the relationship between the family first prevention provisions and the use of predictive analytics by the nyc administration for 55 victoria a. copeland, “it’s the only system we’ve got”: exploring emergency response decision-making in child welfare, 11 colum. j. race & l. f. 59 (2021). 56 id. at 67–68. 57 id. at 87, 88. 58 id. at 89. 450 colum. j. race & l. [vol. 11:427 children’s services (acs).59 families first provides preventive services when children are “at risk of foster care.”60 acs’s predictive analytics presumes the “dangers to children and their families are located within them and their communities,” while ignoring the structural forces that control those families, like police and housing authorities, which produce “conditions of unsafety through separation, surveillance, and investigation.”61 the “assumptions of black pathology are rearticulated as risk management,” leading to the maintenance and ultimate expansion of acs into the lives of bipoc families, even if children are not removed.62 abdurahman stresses that without reckoning with how predictive analytics is an “apparatus” we will falsely believe that prevention is a form of abolition.63 iv. situating this symposium in a larger context the authors of these symposium articles are not alone in seeking transformation rather than reform. the 2020 policy platform of the movement for black lives calls for, among other things, an end to open-ended entitlement funding for the foster system; reinvestment in community organizations; and repeal of the adoption and safe families act.64 parents impacted by the family regulation system have been organizing since before the publication of shattered bonds—including the child welfare organizing project and the foundational work to establish rise—65and their numbers have increased and they have begun making abolitionist demands. one of the leading parent organizations, rise, has partnered with the international parent advocacy network (ipan) to create a toolkit for transformation, resources for an international parent advocacy 59 j. khadijah abdurahman, calculating the souls of black folk: predictive analytics in the new york city administration of children’s services, 11 colum. j. race & l. f. 91 (2021). 60 id. at 108–10. 61 id. at 115. 62 id. at 102. 63 id. at 125. 64 policy platform: end the war on black people, movement for black lives, https://m4bl.org/policy-platforms/end-the-war-black-women [https://perma.cc/nt4h-8psx] (last visited june 21, 2021). 65 rise timeline, rise https://www.risemagazine.org/timeline [https://perma.cc/9pup-fz36] (last visited june 21, 2021); jane m. spinak, they persist: parent and youth voice in the age of trump, 56 fam. ct. rev. 308, 308– 10 (2018). 2021] foreword 451 movement.66 the shriver center on poverty law’s strong communities project calls for ending the harmful removal of children from their homes; its work this year has included webinars on the foster system as part of the carceral web and mandatory reporting as state surveillance.67 articles supporting abolition of family regulation appeared in the past year in the imprint, the daily news publication about child welfare and juvenile justice,68 and children’s bureau express, the monthly publication of us department of health and human services children’s bureau.69 public policy organizations and media 66 toolkit for transformation: support groups for impacted parents, rise (feb. 23, 2021) https://www.risemagazine.org/2021/02/toolkit-fortransformation-support-groups-for-impacted-parents [https://perma.cc/7dwekjkw]. 67 foster system, shriver ctr. poverty l. https://www.povertylaw. org/issue/strong-communities/foster-system [https://perma.cc/f9jt-9vl2] (last visited june 21, 2021). 68 brianna m. harvey & kenyon lee whitman, from a moment to a movement: envisioning a child welfare system we have yet to see, imprint (july 8, 2020), https://imprintnews.org/child-welfare-2/from-moment-tomovement-envisioning-child-welfare-system-we-have-yet-see/45035 [https:// perma.cc/zs7z-sfzg]; alan dettlaff et al., what it means to abolish child welfare as we know it, imprint (oct. 14, 2020), https://imprintnews. org/race/what-means-abolish-child-welfare/48257 [https://perma.cc/5chx3mqq]; dorothy e. roberts, abolishing police also means family regulation, imprint (june 16, 2020), https://imprintnews.org/child-welfare-2/abolishingpolicing-also-means-abolishing-family-regulation/44480 [https://perma.cc/8v8lylqh?type=image]; alan dettlaff & kristen weber, now is the time for abolition, imprint (june 22, 2020), https://imprintnews.org/child-welfare2/now-is-the-time-for-abolition/44706 [https://perma.cc/26t7uf8z?type=image] 69 see the articles contained in the august/september issue, the moment is now, 21 child. bureau express (2020), https://cbexpress.acf.hhs. gov/index.cfm?event=website.viewsection&issueid=218&subsectionid=99 [https://perma.cc/f2yx-ccpx]. jerry milner, then associate commissioner of the children’s bureau, and david kelly, special assistant to the associate commissioner, wrote “we should not wait for harsh life conditions and imperfect systems to degrade parents’ capacities and then deliver the blow of removing their children. if we commit to helping families thrive before child welfare is needed, and focus resources on child and family well-being, there is greater hope for families to realize their potential. . . . there remains a steadfast attachment to the existing way of operating. but it is time for a different approach. . . . we are calling for an approach that demonstrates that families matter, especially poor families and families of color. . . . incrementalism of the kind we typically see is insufficiently bold to address the traumas we witness.” jerry milner & david kelly, we must meet the moment in child welfare, 21 child. bureau express (2020), https://cbexpress.acf.hhs.gov/index.cfm?event=website. viewarticles&issueid=218&sectionid=2&articleid=5638 [https://perma.cc/ cyr7-bbul] (last visited june 21, 2021). 452 colum. j. race & l. [vol. 11:427 outlets reporting on this system have begun to question the efficacy of limited reforms.70 two organizations are central in the abolition efforts, and are represented in this symposium: the movement for family power (mfp)71 and the upend movement.72 mfp centers the leadership of parents and families affected by the foster system. “we believe,” they write, “in a total divestment from the foster system and investment in community. thus, we will not advocate for reforms that simply recreate systems of surveillance, control and punishment of families.”73 in the past year, mfp published a landmark report in collaboration with the nyu family defense clinic and the drug policy alliance, whatever they do, i’m her comfort, i’m her protector: how the foster system has become 70 the national coalition for child protection reform (nccpr) offers comprehensive analyses of every aspect of the child welfare system and produces extensive issue papers. nat’l coalition child protection reform, https://nccpr.org [https://perma.cc/ssr3-csq7] (last visited june 21, 2021). executive director richard wexler prepares a must-read weekly news and commentary round-up from sources all across the country and writes a blog notable for both its breadth and depth that analyzes in real time the actions of local agencies; reports and scholarship; and media coverage. the national center for housing and child welfare works within the existing system to make housing funds available to parents once they have been subject to family regulation, but this year its executive director, ruth white, wrote that “families should never be referred to child protective services (cps) to access housing assistance or other poverty-related resources. nchcw is committed to working with the u.s. children’s bureau in the coming year to reimagine the training of mandated reporters so that families in need are not referred to cps for reasons of poverty and are instead served by community action agencies and other appropriate human services organizations.” ruth white, use federal child welfare funds to prevent family housing crises, imprint (mar. 2, 2021), https://imprintnews.org/child-welfare-2/use-family-first-act-prevent-familyhousing-crises/52373 [https://perma.cc/489j-sywf]. 71 movement for fam. power, https://www.movementfor familypower.org [https://perma.cc/m3lp-cmpn] (last visited june 21, 2021). the movement for family power is represented in ashley albert et al., ending the family death penalty and building a world we deserve, supra note 45. 72 upend, https://upendmovement.org [https://perma.cc/eu9r-krpq] (last visited june 21, 2021). the upend movement is represented in this symposium through bill bettencourt and kristen weber, different year, different jurisdiction, but the same findings: reforming isn’t enough, 12 colum. j. race & l. ____ (2021) (forthcoming) which will appear in the second symposium issue. 73 our areas of work, movement for fam. power, https://www. movementforfamilypower.org/indexa [https://perma.cc/22sq-r5ex] (last visited june 21, 2021). 2021] foreword 453 ground zero for the u.s. drug war.74 the report lambasts the conflation of drug use with abuse and neglect and the way the drug war and the foster system intersect to the detriment of children, families, and communities. it calls for a radical reimagining of how to support children and families through a completely different system that does not rely on surveillance, control, and family separation. the upend movement, launched in june 2020, is a collaboration between the center for the study of social policy and the university of houston graduate school of social work. it envisions a society in which “forcible separation of children from their families is no longer an acceptable solution for families in need.”75 it calls for abolition of the foster care and child welfare system and for implementation of anti-racist policies and practices that safely keep children with their families. the upend’s call for abolition recognizes that the child welfare field has implemented numerous reforms centering on racial equity with insufficient improvement and persistent poor outcomes for black, native, and latinx families and youths. the issue’s scholarship, including the online-scholarship in the forum, exists within this larger context of demands for change. the virtual strengthened bonds symposium, featuring presentations from all the authors of both symposium issues, also has a larger context. days before the virtual symposium, the graduate workers of columbia-united auto workers local 2101 called a strike to incentivize the university in bargaining negotiations. this led the symposium organizers to postpone the symposium until the strike ended. this decision was widely supported by the presenters and panelists, many of whom would not have crossed the virtual picket line to attend. some presenters noted that the union’s demands included not only increased wages but also child care and health care, supports that all families need and that are critical to avoiding family regulation system involvement. the symposium proceeded on 74 movement for fam. power, “whatever they do, i’m her comfort, i’m her protector”: how the foster system has become ground zero for the u.s. drug war (2020), https://static1.squarespace.com/ static/5be5ed0fd274cb7c8a5d0cba/t/5eead939ca509d4e36a89277/159244942287 0/mfp+drug+war+foster+system+report.pdf [https://perma.cc/dae9-49m3]. 75 about us, upend https://upendmovement.org/about [https:// perma.cc/h39c-4n9a] (last visited june 20, 2021). 454 colum. j. race & l. [vol. 11:427 june 16–18, 2021, and we will report on the proceedings in the second issue of the columbia journal of race and law dedicated to the symposium. as we finished writing this foreword in late may, 2021, george floyd’s killer had been convicted of murder and a rising number of people in the country had been fully vaccinated against covid-19. perhaps the most optimistic news is that the new biden administration’s stimulus package is being hailed as “the most effective set of policies for reducing child poverty ever in one bill, especially among black and latinx children.”76 reducing poverty is an essential step in dismantling the current family regulation system. but as the authors in this issue and the legions on the ground have attested, more than money is needed. rather, we must nurture a transformative mind-set that acknowledges the harm that the current system has perpetrated and invests in families, tribes and communities to raise happy, healthy, safe, educated and imaginative children within loving and strengthened families. 76 heather long et al., biden stimulus showers money on americans, sharply cutting poverty and favoring individuals over businesses, wash. post (mar. 6, 2021), https://www.washingtonpost.com/business/2021/03/06/bidenstimulus-poverty-checks [https://perma.cc/ew8m-m4a3](quoting indivar dutta-gupta, co-executive director of the georgetown center on poverty and inequality). 3 blaisdell final 2014 columbia journal of race and law             177   title vii challenges to security clearance referrals: rattigan points the way demetri blaisdell* in a nearly unbroken line of cases since the supreme court’s ruling in department of the navy v. egan, courts have dismissed as nonjusticiable lawsuits challenging any aspect of the security clearance process, including claims brought under title vii of the civil rights act. however, in a 2012 d.c. circuit case, rattigan v. holder, plaintiff wilfred rattigan won a narrow decision that altered the legal landscape surrounding security clearance referrals. judge david tatel’s opinion for the majority on re-hearing preserved a title vii challenge to a discriminatory security clearance referral, albeit on a knowingly false standard. this note provides a careful reading of that opinion, situating it in the wider legal context of title vii and the egan doctrine. it argues that rattigan gives the strongest indication to date of a limit on the broad reading of egan that has developed over the last twenty-five years, a prediction that has been borne out by the first few cases to apply rattigan. it further argues that the chilling argument pressed by government lawyers in rattigan may actually support allowing plaintiffs like rattigan to litigate their claims, instead of dismissing them as nonjusticiable. the d.c. circuit’s approach points the way towards an appropriate judicial role in supervising security clearance referrals. i. introduction ………………………………………………………...... 178 ii. the legal landscape ………………………………………………... 180 a. the majority view: department o f the navy v . egan should be read broadly ……………………………………………………….... 180 b. a minority view: a narrow egan doctrine ………………………... 183 c. the egan doctrine and title vii …………………………………... 184 d. exceptions to egan nonjusticiability ……………………………… 186 iii. rattigan v. holder and the d.c. circuit ………………... 188 a. the facts of ratt igan ……………………………………………….. 189                                                                                                                           * j.d. candidate, 2014, columbia law school; b.a., 2009, university of california, los angeles. the author would like to thank professor david pozen for his critical feedback and support and the editors and staff of the columbia journal of race & law for their helpful edits and suggestions. title vii challenges to security clearance referrals vol. 4:2     178   b. trial before the d.c. district court ………………………………... 189 c. the first ruling of the d.c. circuit ………………………………... 190 d. the appeal for rehearing …………………………………………... 191 e. the d.c. circuit’s decision on rehearing ………………………… 192 f. the d.c. district court’s decision on remand …………………... 193 iv. rattigan’s effect on title vii and the egan doctrine …………………………………………………………………. 193 a. the significance of ratt igan ………………………………………... 194 b. unanswered questions ……………………………………………… 196 c. is it possible the government won ratt igan? ……………………... 198 d. will narrow judicial review of security clearance referrals based on racist, discriminatory, or otherwise knowingly false information chill reporting ………………………………………... 200 v. conclusion ……………………………………………………………… 203 i. introduction on july 10, 2012, after a hard-fought legal battle that began in the d.c. district court and was heard and re-heard by the d.c. circuit, plaintiff wilfred samuel rattigan won a narrow decision that altered the legal landscape surrounding security clearance referrals.1 on rehearing, the d.c. circuit held that courts can hear title vii claims based on knowingly false statements that are made in referring a coworker for security clearance review. while this is undoubtedly a high standard, the decision nevertheless rebuked the government attorneys’ argument that the supreme court’s ruling in department of the navy v. egan2 precluded review entirely.3 indeed, rattigan gives the strongest indication to date of a limit on the broad reading of egan that has developed in the twenty-five years since the court’s original ruling. mr. rattigan is an african-american attorney who converted to islam while working for the fbi as a legal attaché in saudi arabia, where he coordinated intelligence cooperation with saudi officials.4 in order to carry out his duties, mr. rattigan applied for and was granted a security clearance,                                                                                                                           1 rattigan v. holder, 689 f.3d 764, 770 (d.c. cir. 2012) [hereinafter rattigan ii]. 2 dep’t of the navy v. egan, 484 u.s. 518 (1988). 3 rattigan ii, 689 f.3d at 770. 4 rattigan v. holder, 643 f.3d 975, 977–78 (d.c. cir. 2011), aff’d on reh’g as modified, rattigan v. holder, 689 f.3d 764 (d.c. cir. 2012) [hereinafter rattigan i]. 2014 columbia journal of race and law             179   presumably through a process similar to the fbi’s current procedure.5 after a series of incidents, which are recounted more fully below, several of rattigan’s co-workers reported a list of sensational accusations to the fbi’s d.c. office of international operations (“oio”). among other things, rattigan’s co-workers alleged that he wore “full saudi arabian costume,” that he attended parties with prostitutes he referred to as “nurses,” and that he was “inappropriately under the influence of his saudi counterparts.”6 as was shown at trial before the d.c. district court, the security division (to which the oio referred the investigation)7 found these allegations to be baseless and closed the investigation.8 additionally, the trial court held that the security clearance investigation was an unlawful retaliation under title vii.9 it is this ruling the government appealed, ultimately resulting in the july 10, 2012, decision of the d.c. circuit. the rattigan decision is important in part because security clearance law is a significant and evergrowing area of law. a 2013 report by the office of the director of national intelligence estimated that 4,917,751 people held security clearances as of october 2012; this staggering number (which includes government employees and private contractors) included 54,199 new clearances issued since october 2011.10 if even a very small fraction of these employees face some form of adverse employment action or security referral in their careers, there are tens of thousands of potential rattigans in the federal bureaucracy. perhaps it is surprising then that so little has been written on the subject. apart from an exceptionally well-reasoned critique of the egan doctrine by constitutional law expert louis fisher,11 and a small handful of student works,12 there is scant literature in the area. unlike previous writings that                                                                                                                           5 according to the fbi’s website, “the [bureau’s current security clearance] investigation includes a polygraph examination; a test for illegal drugs; credit and records checks; and extensive interviews with former and current colleagues, neighbors, friends, professors, etc.” background investigation, fed. bureau of investigation careers, https://www.fbijobs.gov/5.asp (last visited apr. 4, 2014). once an employee has been granted her security clearance, she is still subject to various disclosure obligations and other post-adjudication monitoring, which can include investigation of security clearance referrals. see infra note 7. 6 rattigan i, 643 f.3d at 978. 7 founded in december 2001, the fbi security division is responsible for implementing a variety of programs designed to monitor employees who already have been granted security clearances, including conducting security clearance investigations after information is referred to it by another fbi division. just the facts: security, fed. bureau of investigation (aug. 2011), http://www.fbi.gov/about-us/ten-years-after-the-fbi-since-9-11/just-the-facts-1/security. 8 rattigan i, 643 f.3d at 979. 9 id. at 979–80. 10 office of the dir. of nat’l intelligence, 2012 report on security clearance determinations 3 (2013). this increase was significantly smaller than the increase of 155,311 recorded between 2010 and 2011, perhaps due to a slowdown in government hiring during 2013. office of the dir. of nat’l intelligence, 2011 report on security clearance determinations 3 (2012). 11 louis fisher, judicial interpretations of egan (2009), available at http://loc.gov/law/help/ usconlaw/pdf/egan_public_2009.pdf. mr. fisher argues that the doctrine of deference surrounding security clearances has been misapplied. specifically, fisher claims that courts have interpreted egan to stand for a plenary power on the part of the president over classified information. he convincingly argues that egan turned on the narrow question of whether congress intended the mspb to review the substance of security clearance determinations under 5 u.s.c. § 7513. id. this note will refer to mr. fisher’s argument and his understanding of egan as the “narrow” egan doctrine. 12 nadia a. patel, note, you’re fired! egan and mspb review of security clearance decisions, 21 fed. cir. b.j. 93 (2011) (arguing that congress should amend the civil service reform act to give mspb authority to review security clearance decisions); jason rathod, note, not peace, but a sword: navy v. egan and the case against judicial abdication in foreign affairs, 59 duke l.j. 595, 599–600 (2009) (arguing that courts should first find that equal protection claims are not preempted by title vii and then use the reasoning of webster v. doe to allow courts to review the merits of security clearance decisions); david c. mayer, note, reviewing national security clearance decisions: the clash between title vii and bivens claims, 85 cornell l. rev. 786, 792 (2000) (arguing for an amendment to title vii that would address the fact title vii challenges to security clearance referrals vol. 4:2     180   discuss judicial review of security clearance determinations generally, this note takes up the narrower issue of security clearance referrals. also unlike the student works that precede it, this note will not focus on normative prescriptions for the future of the law. instead, it seeks to highlight the importance of the d.c. circuit’s opinion in rattigan and explain its potential impact on the law. this note will analyze the d.c. circuit’s holding and situate it in the broader legal context of title vii and the egan doctrine. part ii will briefly summarize the origins of the egan doctrine and the current legal framework. it will discuss two views on the court’s ruling in egan: the narrower view pressed by louis fisher and the more expansive view that has been adopted by several circuit courts and embraced by executive branch officials. this note will argue that one reason rattigan is significant is that it represents a significant step towards the narrow view of egan with respect to security clearance referrals.13 part iii will give a careful reading of both the original d.c. circuit opinion and its recent ruling on re-hearing in the rattigan matter. part iv will propose several reasons why rattigan is a significant decision, provide a first glimpse of how district courts are implementing it, and discuss counterarguments to the claim that rattigan is a significant decision. it will also consider the government’s argument that allowing judicial review of security clearance referrals will chill essential candor. this note is not a comprehensive treatment of the law around security clearance referrals. instead, it argues that the d.c. circuit’s recent decision in rattigan is a tentative, though legallysignificant, break with past precedent. hopefully, this note will serve as a foundation for future works and suggest potentially fruitful lines of future inquiry. ii. the legal landscape this part describes the broad contours of the doctrinal framework within which rattigan was decided. it will begin with a discussion of the supreme court’s decision in egan, the foundational case for modern security clearance review law. it will discuss two possible readings of the case and weigh arguments for and against adopting each. then, it will describe how the egan doctrine has been applied in the title vii context. finally, it will discuss limited exceptions to deference under egan, including due process and more general constitutional challenges that arise under security clearance law. a. the majority view: department o f the navy v . egan should be read broadly when thomas egan, a laborer at a trident nuclear submarine facility in washington, was denied a security clearance (required for employment) apparently due to prior felony convictions and an admitted history of alcohol abuse, his employment was terminated and he sought review by the merit systems protection board (“mspb”).14 prior to reversal by the supreme court in egan, the federal                                                                                                                                                                                                                                                                                                                                                                                                         that general constitutional challenges can proceed under webster v. doe while statutory challenges are barred under brown v. general services administration). 13 the note will not take a stance on which reading of egan is truer to the text of the opinion. it will also avoid the normative question of which reading of egan represents sounder policy. however, part iii will look critically at arguments that are predicated on the broad reading and consider if they would be tenable under the narrow reading of the case. this part will also discuss if, contrary to intuition, the executive branch’s underlying objectives might be met more fully by a narrow egan doctrine. see infra part iii.d. 14 dep’t of the navy v. egan, 484 u.s. 518, 521–22 (1988). the merit systems protection board, an executive agency created by the civil service reform act of 1978 (csra), public law no. 95-454, hears employment disputerelated appeals for federal employees, among other quasi-judicial duties. for more on the mspb, see u.s. merit sys. prot. bd., an introduction to the merit sys. prot. bd., available at http://www.mspb.gov /netsearch/viewdocs.aspx?docnumber=243962&version=244230&application=acrobat (last visited jan. 20, 2014). 2014 columbia journal of race and law             181   circuit had ruled that the denial of a security clearance was an “adverse action” reviewable by the mspb under 5 u.s.c. §7513, the general statutory scheme for review of adverse actions against certain government employees.15 on certiorari from that case, the court reversed, holding that §7513 was not intended to extend to the merits of security clearance determinations.16 the sentence preceding the holding gives the key reasoning: “. . . unless congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the executive in military and national security affairs.”17 it is outside the scope of this paper to give a fine-grained reading of the opinion,18 but a few portions have been significant in shaping the broad egan doctrine. the court’s analysis begins with the “strong presumption in favor of appellate review,”19 before explaining that “it runs aground when it encounters concerns of national security, as in this case.”20 then, in what may arguably be described as dicta (given the statutorily-grounded narrow holding), justice blackmun examines the constitutional grounding for the security clearance power. he explains that the president’s “authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the executive branch that will give that person access to such information flows primarily from [the art. ii, §2 commander-in-chief power] and exists quite apart from any explicit congressional grant.”21 however, this section concludes as follows: “thus, unless congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the executive in military and national security affairs.”22 later courts would use language from justice blackmun’s constitutional discussion (ignoring the “unless congress has specifically provided otherwise” caveat) and egan’s subsequent citation to united states v. nixon to support “utmost deference” to the decisions of executive branch officials regarding security clearances.23 this is what this note refers to as the broad reading of egan. the mspb implemented egan immediately. the mspb found for the government in two cases that were pending before the board as the egan decision was handed down, concluding that review was precluded.24 the mspb has cited egan in at least eighty-seven of its published opinions since 1988,                                                                                                                           15 egan v. dep’t of the navy, 802 f.2d 1563, 1567–69 (fed. cir. 1986), rev’d, 484 u.s. 518 (1988) (reversing the mspb’s full-board ruling that the mspb lacked the authority to reinstate a security clearance). the federal circuit relied on the lack of any statutory provision precluding review of security clearance determinations and the strong presumption of judicial review in administrative law announced in abbott laboratories v. gardner, 387 u.s. 136 (1967). egan, 802 f.2d at 1569. 16 egan, 484 u.s. at 530. 17 id. 18 for a fascinating analysis of egan, including prior history of the case, summaries of the briefs, and excerpts from the papers of justice blackmun, author of the majority opinion, see fisher, supra note 11. 19 egan, 484 u.s. at 526 (citing abbott laboratories v. gardner, 387 u.s. 136, 141 (1967)) 20 id. at 527. 21 id. 22 id. at 530 (emphasis added). 23 id. at 527, 529–30 (quoting united states v. nixon, 418 u.s. 683, 710 (1974)). 24 the first case involved a disparate treatment challenge brought by a navy pipefitter with a drug offenserelated denial of security clearance; the mspb concluded it had no authority to hear the challenge. woroneski v. dep’t of navy, 39 m.s.p.r. 366 (1988). the second case, involving a challenge to a security clearance revocation based on a psychological evaluation and refusal to undergo counseling or therapy, included a lengthier discussion of egan. weissberger v. u.s. info. agency, 39 m.s.p.r. 370 (1988). citing the court’s decision and the agency petition for writ of certiorari in egan, the mspb interpreted their post-egan discretion as “review of the legal sufficiency of the procedural aspects of the revocation action . . . limited to determining whether the agency afforded minimal due process protection to the employee in revoking his security clearance.” id. at 373–74. title vii challenges to security clearance referrals vol. 4:2     182   rejecting for lack of jurisdiction challenges to security clearance decisions based on claims of gender discrimination,25 disability discrimination,26 and whistleblower retaliation.27 the dominant view on egan today is that it calls for courts to defer to all security clearance determinations made by the executive, rendering most claims nonjusticiable.28 a 2005 d.c. circuit case (discussed more fully below) shows typical language: “because the authority to issue a security clearance is a discretionary function of the executive branch and involves the complex area of foreign relations and national security, employment actions based on denial of security clearance are not subject to judicial review, including under title vii.”29 justice blackmun’s description of the power to control access to information as existing “quite apart from any explicit congressional grant”30 provides the textual hook to ground this deference in the constitution, precluding statutory causes of action. the effect of this reading of egan on title vii is discussed below. executive branch officials have eagerly adopted this reading of egan.31 in a letter to congress about government leaks, then-attorney general john ashcroft explained: the president has the power under the constitution to protect national security secrets from unauthorized disclosure. this extends to defining what information constitutes a national security secret and to determining who may have access to that secret. . . . . . . the authority to protect such information falls on the president as head of the executive branch and as commander in chief.32 according to ashcroft, it was egan that “made these points clear.”33 former secretary of state james a. baker, citing egan, wrote simply: “under the constitution and laws of the united states, the president                                                                                                                           25 helms v. dep’t of army, 114 m.s.p.r. 447 (2010) (citing egan and denying review of a disparate treatment claim brought by a male intelligence specialist for lack of jurisdiction). 26 hinton v. dep’t of navy, 61 m.s.p.r. 692 (1994) (citing egan and denying review of a handicap discrimination claim brought by a heavy mobile equipment mechanic helper as “outside the board’s authority”). 27 hesse v. dep’t of state, 82 m.s.p.r. 489 (1999), aff’d, 217 f.3d 1372 (fed. cir. 2000) (citing egan for the proposition that mspb review is limited to procedural due process and denying review of a claim of whistleblower retaliation for lack of jurisdiction). 28 see, e.g., bennett v. chertoff, 425 f.3d 999 (d.c. cir. 2005) (rejecting a title vii claim even where the employee alleged that the decision to terminate employee was based on “unsuitability” rather than denial of security clearance; the claim that revocation of security clearance was pretextual could not be evaluated under egan); ryan v. reno, 168 f.3d 520 (d.c. cir. 1999) (rejecting a challenge to denial of security clearances as nonjusticiable under egan); perez v. fbi, 71 f.3d 513 (5th cir. 1995) (finding hispanic fbi employee’s title vii retaliation claim nonjusticiable under egan); and becerra v. dalton, 94 f.3d 145, 149 (4th cir. 1996) (civilian employee of the navy’s national origin discrimination claim under title vii barred by egan). 29 bennett, 425 f.3d at 1001. while there may be analytically rigorous ways of arriving at this point, the bennett court opened a paragraph with this assertion, cited to egan and a recent d.c. circuit case, and moved on to a discussion of whether the waiver at issue in the case was analogous to a security clearance. 30 dep’t of the navy v. egan, 484 u.s. 518, 527 (1988). 31 louis fisher cites four examples from letters and public statements by the attorney general or assistant attorney generals between 2003 and 2007. in each of them, egan is cited for the proposition that the president has constitutional control or exclusive constitutional control over security clearance determinations. fisher, supra note 11, at 1–2. 32 letter from john ashcroft, attorney gen. of the u.s., to dennis hastert, speaker, u.s. house of representatives 2 (oct. 15, 2002), available at http://www.fas.org/sgp/othergov/dojleaks.pdf. 33 id. 2014 columbia journal of race and law             183   commands the intelligence community. as a practical matter, he also controls access to classified information.”34 b. a minority view: a narrower egan doctrine the broad reading of egan is not without its critics. in a pair of articles,35 constitutional law specialist louis fisher argues that the holding of egan is the narrower, statutory ruling that §7513 was not intended to extend to the merits of security clearance determinations.36 under this reading, the “. . . unless congress specifically has provided otherwise” language cited above is a qualification essential to the holding of the case.37 this reserves for congress the right to restrict the “range of presidential authority.”38 this formulation calls to mind justice jackson’s concurrence in youngstown sheet & tube co. v. sawyer,39 which set forth a framework for judging the legitimacy of presidential action justified by executive war powers.40 with respect to the broad “quite apart from any explicit grant of congress” sentence, mr. fisher argues that it “only affirms that the president may act in the absence of statutory authority, not against statutory authority.”41 fisher also points to the language in egan that the rattigan court relied upon regarding expertise of executive branch officials as the source of deference.42 in sum, fisher believes egan was decided on statutory and administrative competence grounds, and justice blackmun’s separation of powers discussion was not part of the holding. this note will refer to this alternate reading of egan as the narrow reading of the case. the rattigan court cited language from egan to suggest that administrative expertise is the proper limit on the egan doctrine.43 justice blackmun grounds judicial deference in competency of a specialized agency, a familiar administrative law principle.44 he writes that “[p]redictive judgment of this kind                                                                                                                           34 james a. baker, intelligence oversight, 45 harv. j. on legis. 199, 202–03 (2008). 35 fisher, supra note 11 (directly criticizing the broader reading of egan); louis fisher, congressional access to national security information, 45 harv. j. on legis. 219, 220 (2008) (arguing that the “duties and needs of congress to obtain national security information from the executive branch” give it a much greater role in controlling access to classified documents). 36 egan, 484 u.s. at 530. 37 id. 38 fisher, supra note 11, at 1. in the earlier of his two works, fisher also reminds us that “[t]o the extent the judiciary decides to defer to executive branch arguments for secrecy in national security matters, such deference has no direct application to congress, as article i of the constitution vests in congress explicit powers and responsibilities concerning national security issues.” fisher, supra note 35, at 220. 39 youngstown sheet & tube co. v. sawyer, 343 u.s. 579, 634 (1952) (jackson, j., concurring) (describing three categories of executive action by reference to their interaction with congress: 1) where the president acts with an express or implied delegation of authority by congress; 2) where the president acts in an area where congress has been silent; and 3) where the president acts in defiance of congressional action). 40 for more on the impact of youngstown sheet & tube co. and its doctrinal and historical significance, see maeva marcus, truman and the steel seizure case: the limits of presidential power (1994). 41 fisher, supra note 11, at 7–8. fisher identifies the source of this language as the justice department’s brief. however, he notes that doj’s brief “spoke of power as flowing ‘directly’ from article ii, where justice blackmun referred to authority flowing ‘primarily’ from article ii.” id. 42 fisher, supra note 11, at 8 (citing dep’t of the navy v. egan, 484 u.s. 518, 529 (1988)). 43 rattigan ii, 689 f.3d 764, 769 (d.c. cir. 2012). 44 chevron is the case most often cited when discussing deference to administrative agencies. chevron u.s.a. inc. v. natural res. def. council, inc., 467 u.s. 837 (1984). however, in the more recent mead decision, the court considered under what circumstances agency decisions should get deference. united states v. mead corp., 533 u.s. 218 (2001) (reviving skidmore deference for situations where chevron does not apply; the skidmore factors include experience of the agency, thoroughness of its consideration, validity of its reasoning, and consistency with earlier and later pronouncements). unlike under chevron, skidmore deference is decided based on the facts of the particular case. title vii challenges to security clearance referrals vol. 4:2     184   [security clearance determinations] must be made by those with the necessary expertise in protecting classified information.”45 there is a constitutional foundation to this deference: later in the same paragraph, blackmun recognizes that military, national security, and foreign affairs are all “responsibilities” of the president.46 the d.c. circuit accepted these premises but narrowed the doctrine by elevating an inference from this language to law: those who lack such expertise are not deserving of deference—whether grounded in the constitution or administrative law. the central thesis of this note is that, by adopting this expertise-based limit,47 the rattigan decision represents a moderate step towards the narrow view of egan with respect to security clearance referrals.48 c. the egan doctrine and title vii title vii of the civil rights act of 1964 provides a statutory remedy for discrimination based on an employee’s “race, color, religion, sex, or national origin.”49 the court set forth the familiar balancing test that governs such discrimination claims in mcdonnell douglas corp. v. green. 50 the complainant must first make a prima facie showing of discrimination, which shifts the burden to the employer to provide a non-discriminatory reason for the adverse employment action.51 provision of such a reason shifts the burden back to the complainant to show that the justification provided was pretextual.52 as this brief description illustrates, this somewhat complicated scheme has proved difficult to implement in the security clearance realm. title vii challenges to denials or revocations of security clearances have not fared well under the broad egan doctrine. in ryan v. reno, a case illustrative of the approach of several circuit courts, a group of irish-american dual citizens challenged denials of security clearances, alleging title vii discrimination based on national origin.53 after summary denial before the doj complaint adjudication office, the equal employment opportunity commission (“eeoc”) ruled that, while it had jurisdiction to hear a challenge of discriminatory denial of security clearance, the complainants had not proved discrimination.54 article iii courts also proved unsympathetic: both the district court and the d.c. circuit rejected the claims for lack of jurisdiction, explaining that the second step of the mcdonnell douglas framework (the legitimate, nondiscriminatory reason for adverse employment action) would “run[] smack up against egan.”55 the ryan court noted that the d.c. circuit was joining the fifth and ninth circuits, which had barred similar challenges to revocation or denial of security clearance.56                                                                                                                                                                                                                                                                                                                                                                                                         although of course there are constitutional dimensions to the d.c. circuit’s egan analysis in rattigan, its decision to limit deference in rattigan seems consistent with the skidmore case-by-case approach. 45 dep’t of the navy v. egan, 484 u.s. 518, 529 (1988). 46 id. at 529–30. that there are constitutional underpinnings to deference to administrative agencies is a fairly uncontroversial point. the rattigan opinion did not specifically address the constitutional grounding for deference to administrative competency in this area, but the fact that the d.c. circuit carved out limited judicial review appears to show that there was a constitutionally-significant difference between executive officials who routinely carry out this function and those that are merely referring a colleague for review. 47 rattigan ii, 689 f.3d at 673. 48 see infra part iii-a. 49 title vii of the civil rights act of 1964, 42 u.s.c. § 2000e-2 (2006). 50 mcdonnell douglas corp. v. green, 411 u.s. 792 (1976). 51 id. at 802–05. 52 id. 53 ryan v. reno, 168 f.3d 520, 522 (d.c. cir. 1999). 54 id. at 522–23. 55 id. at 523–24. 56 perez v. fbi, 71 f.3d 513 (5th cir. 1995) (holding hispanic fbi employee’s title vii racial discrimination claim barred); brazil v. u.s. dep’t of navy, 66 f.3d 193 (9th cir. 1995) (holding african american civilian navy 2014 columbia journal of race and law             185   in the wake of these rulings, clever plaintiffs have attempted an end run around egan, arguing that their title vii challenges are to the decision to investigate a security clearance rather than to a final security clearance determination (a denial or revocation).57 this argument has been rejected by the fourth, ninth, and eleventh circuits in cases where the review in fact led to a revocation or denial of security clearance.58 the fourth circuit concisely explained how egan applies to this situation, writing: we find that the distinction between the initiation of a security investigation and the denial of a security clearance is a distinction without a difference. the question of whether the navy had sufficient reasons to investigate the plaintiff as a potential security risk goes to the very heart of the “protection of classified information [that] must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” egan, 484 u.s. at 529, 108 s.ct. at 825. the reasons why a security investigation is initiated may very well be the same reasons why the final security clearance decision is made. thus, if permitted to review the initial stage of a security clearance determination to ascertain whether it was a retaliatory act, the court would be required to review the very issues that the supreme court has held are non-reviewable.59 as part iii will explain, the d.c. district court categorically distinguished these cases in reaching the merits of mr. rattigan’s title vii challenge; the d.c. circuit’s more nuanced approach, however, yields interesting doctrinal tension. in 2005, the d.c. circuit heard its most recent title vii challenge to a security clearance determination prior to rattigan. in bennett, the plaintiff, a former department of defense (“dod”) employee, was told by the agency that she was going to be fired and then preemptively quit for that reason. on a subsequent job application for a tsa position, she lied, asserting that she quit her job at dod of her own volition.60 bennett brought a title vii claim for retaliatory termination, arguing that she was dismissed for filing an administrative complaint against dod.61 after her case was found nonjusticiable under egan by the district court, she argued on appeal that the pretextual reason for her dismissal was a negative suitability determination rather than revocation of her security clearance (which                                                                                                                                                                                                                                                                                                                                                                                                         employee’s title vii racial discrimination challenge to revocation of nuclear weapons personnel reliability program certification barred by egan). 57 one such example is in the reply brief in support of an ultimately unsuccessful cert petition in the perez case. perez, 71 f.3d 513. the plaintiff argued, “[t]he government tries to redefine petitioner's claim as ‘a review of a security clearance’ so that the fbi can hide behind the protection of egan. however, petitioner's claim is about retaliation, not the revocation of a security clearance.” reply brief in support of the petition for certiorari, mata v. fbi, 517 u.s. 1234 (1996) (no. 95-1482), 1996 wl 33439302, at *6. 58 becerra v. dalton, 94 f.3d 145, 149 (4th cir. 1996) (holding civilian employee of the navy’s national origin discrimination claim under title vii was barred by egan); hill v. white, 321 f.3d 1334 (11th cir. 2003) (affirming a grant of summary judgment to the u.s. army in a title vii age discrimination challenge, citing becerra and egan); panoke v. u.s. army military police brigade, haw., 307 f. app’x 54 (9th cir. 2009), aff'g 2007 wl 2790750 (d. haw. sept. 21, 2007) (affirming a grant of summary judgment to the government in a title vii case brought based on multiple allegations of discrimination). 59 becerra, 94 f.3d at 149. 60 bennett v. chertoff, 425 f.3d 999, 1000–01 (d.c. cir. 2005). essentially, ms. bennett argued that she was fired as unfit for the position instead of being denied a security clearance (for lying on the application form) and fired on account of not having the requisite clearance. id. 61 id. at 1001. title vii challenges to security clearance referrals vol. 4:2     186   she had retained after quitting her previous job).62 the d.c. circuit ruled that her claim was properly dismissed as nonjusticiable because the court could not “adjudicate the credibility” of her argument because to do so “would require the trier of fact to evaluate the validity of the agency’s security determination.”63 significantly, this opinion was authored by judge rogers, who would join judge tatel’s opinion for the majority in rattigan. the significance of this prominent jurist’s apparent change of opinion is discussed in part iv.64 d. exceptions to egan nonjusticiability notwithstanding a general presumption of nonreviewability, courts have recognized limitations on the doctrine for constitutional and statutory due process challenges. the mspb held that it retained discretion to hear procedural due process challenges in weissberger, one of its first rulings after egan.65 the board noted that the government’s petition for writ of certiorari in egan conceded that due process required notice, a statement of reasons for denial or revocation of the clearance, and an opportunity to respond.66 the board reaffirmed this more recently in hesse, which was upheld by the federal circuit.67 the hesse court explained that a procedural challenge can be either constitutional or statutory.68 procedural due process provides only limited review, however, and plaintiffs rarely prevail on such challenges.69                                                                                                                           62 id. at 1002. according to ms. bennett, tsa had decided that the falsification itself made her unfit for employment (arguably outside of egan). the government argued that the falsification formed the basis for the subsequent revocation of her security clearance (a requirement for tsa employment) and thus the case turned on the merits of a security clearance determination, a fairly obvious application of egan. id. at 1001–02. the d.c. circuit leaned heavily on its decision in ryan (see supra note 53) to explain that it could not adjudicate this particular disagreement. 63 id. at 1003. 64 although this note argues that rattigan represents a doctrinal shift, see infra part iii.a, it should be noted that the two cases are factually distinguishable: ms. bennett sued for her termination after having her security clearance revoked, bennett, 425 f.3d at 1001, while mr. rattigan brought suit alleging that the security clearance referral (which did not lead to him losing his clearance) itself constituted an adverse employment action, rattigan ii, rattigan ii, 689 f.3d 764, 776 (d.c. cir. 2012). 65 weissberger v. u.s. info. agency, 39 m.s.p.r. 370, 373–74 (1988). 66 id. at 374. 67 hesse v. dep’t of state, 82 m.s.p.r. 489 (1999), aff’d, 217 f.3d 1372 (fed. cir. 2000). 68 id. at 492. the statutory provision is 5 u.s.c. § 7513(b), which provides in relevant part that: an employee against whom an action is proposed is entitled to-(1) at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor [sic] at the earliest practicable date. 5 u.s.c. § 7513(b)(1)–(4). 69 procedural due process challenges are limited in two ways: (1) the plaintiff must show the action is related to a policy of the agency (i.e., that it is not a title vii or other claim that has been styled as procedural); and (2) even proper procedural challenges appear to receive a deferential review by the mspb and federal circuit. see, e.g., stoyanov v. dep’t of navy, 348 f. app’x 558 (fed. cir. 2009) (finding that plaintiff’s claim that revocation of a security clearance was in retaliation for whistle-blowing is not a procedural challenge, and that procedural due process did not require the agency to describe in detail more than 200 alleged incidents of using government resources and work time for unauthorized purposes); romero v. dep’t of def., 527 f.3d 1324 (fed. cir. 2008) (dismissing plaintiff’s claim of retaliatory revocation as not procedural and remanding to the mspb for consideration of procedural challenges that the board did not address); bruce v. dep’t of def., 55 f. app’x 913 (fed. cir. 2003) (holding that plaintiff’s procedural 2014 columbia journal of race and law             187   at least some (non-due process) constitutional claims are justiciable under webster v. doe.70 in webster, a cia technician with stellar performance evaluations voluntarily informed his superiors that he was gay; the office of security informed him that his homosexuality was a threat to security and the cia director dismissed him.71 rejecting the cia’s argument that the director’s decision was discretionary and not reviewable by any court, the court held that, while statutory challenges under the administrative procedure act were barred by the national security act, “a constitutional claim based on an individual discharge may be reviewed.”72 interestingly, the court responded to the cia’s complaint that its ruling would result in “rummaging around in agency affairs” by citing title vii as a claim the government conceded was not barred.73 notwithstanding the court’s reference to title vii, such claims do not fall squarely within the holding of webster. two decades earlier, the court ruled that title vii provides the exclusive remedy for discrimination claims covered by the statute in brown v. general services administration.74 other writers have noted the irony in the doctrine: claims of discrimination that are recognized under title vii (race, color, religion, sex, and national origin) are barred by egan and brown while webster at least seems to allow courts to examine the substance of security clearance determinations in evaluating claims of discrimination on non-recognized grounds (e.g., sexual orientation, age, and immigration status).75 the issue of discrimination on the basis of sexual orientation remains a live one: prior to 1995, sexual orientation could be explicitly considered in the security clearance review process and the language of the adjudicative guidelines may still allow it to be considered in some situations.76 the third and ninth circuits have considered this issue, reaching different conclusions.                                                                                                                                                                                                                                                                                                                                                                                                         challenge to reassignment after being denied a security clearance fails because he could not prove that reassignment to a non-sensitive position was a policy of the agency). 70 webster v. doe, 486 u.s. 592 (1988). 71 id. at 595. 72 id. at 603–04. 73 id. at 604–05. also note that webster v. doe was decided almost five months after egan. while webster v. doe did not involve a formal denial of security clearance, the fact that the cia cited a threat to security in dismissing him brings the case into the orbit of egan. it also may provide contemporaneous support for the narrow reading of egan urged by louis fisher and others. 74 brown v. gen. servs. admin., 425 u.s. 820 (1976) (affirming dismissal of a title vii racial discrimination claim because it had been filed beyond the thirty-day appeal window afforded by the statute). 75 see, e.g., rathod, supra note 12, at 608–09, 630–31 (arguing that to restore judicial review of security clearance decisions, the court must first nullify brown through the constitutional avoidance canon and then use equal protection as the basis for review of security clearance determinations); mayer, supra note 12, at 811–15 (arguing that amending title vii is the appropriate fix); reply brief in support of the petition for certiorari, mata v. fbi, 517 u.s. 1234 (1996) (no. 95-1482), 1996 wl 33439302, at *5 (arguing that while webster v. doe vindicated a harm based on sexual orientation, an interest at the periphery of constitutional rights, petitioner’s claim of racial discrimination fell within “the core” of constitutional rights). 76 the revisions were part of an executive order issued in august 1995. exec. order no. 12,968, 60 fed. reg. 40,245 (aug. 2, 1995). although consideration of “sexual orientation or preference” is explicitly prohibited in subsection (a), the adjudicative guidelines that govern security clearance determinations still allow the consideration of sexual behavior if it “causes an individual to be vulnerable to coercion, exploitation or duress.” adjudicative guidelines for determining eligibility for access to classified information, 32 c.f.r. § 147.6(a) (2004). the end of the “don’t ask, don’t tell” policy is another example of the changing legal status of sexual orientation discrimination. the firing of dozens of military translators with critical legal skills, especially those proficient in arabic and farsi, raises the possibility of webster-style claims. margie mason, gay linguists get the boot, cbs news (feb. 11, 2009), www.cbsnews.com/2100500164_162-529418.html. title vii challenges to security clearance referrals vol. 4:2     188   the availability to plaintiffs of doe-style constitutional challenges was called in to question by the third circuit’s ruling in el-ganayni v. u.s. department of energy. 77 in that case, an egyptian-born physicist employed by a private contractor under license from the department of energy (“doe”), alleged first amendment, equal protection, and apa violations connected to revocation of his security clearance.78 the third circuit, guided by doe and subsequent cases, found that it technically had jurisdiction to hear the challenge.79 however, as to the first two counts, the third circuit ruled that el-ganayni could not possibly prevail because the legal framework “would inevitably involve scrutiny of the merits of the doe’s decision to revoke el-ganayni’s clearance.”80 thus, egan functionally barred constitutional challenge. however, the ninth circuit subsequently applied a significantly more flexible approach in zeinali, ruling that an iranian-american could proceed on a state-law discrimination claim against raytheon despite the private employer citing lack of eligibility for a security clearance as the reason for termination.81 the ninth circuit distinguished brazil and el-ganayni on the grounds that zeinali’s suit was against a private employer and did not seek to challenge the merits of the security clearance determination.82 because of this factual distinction, it is not completely clear what zeinali says about the broad egan doctrine. at the very least, the ninth circuit, like the rattigan court, refused to dismiss a suit as nonjusticiable at the assertion of a connection to the security clearance process; this is evidence the ninth circuit views the egan doctrine as more flexible than did the third, fourth, and fifth circuits in el-ganayni, becerra, and perez, respectively.83 iii. rattigan v. holder and the d.c. circuit this part will begin with the facts of the case and the outcome of the jury trial before the d.c. district court. then, it will discuss the government’s appeal of rattigan’s initial victory to the d.c. circuit court. finally, it will discuss the government’s arguments for re-hearing and the slight revision that the same panel of the d.c. circuit made to its initial ruling. this close reading will draw on the doctrinal framework set forth in part ii and will provide the foundation for the central argument of the note regarding the significance of the case, which is set forth in part iv.                                                                                                                           77 el-ganayni v. u.s. dep’t of energy, 591 f.3d 176 (3d cir. 2010). 78 id. at 177–80. el-ganayni alleged that the first amendment violation related to his speeches criticizing the fbi, u.s. foreign policy, and the war in iraq. id. the equal protection claims were based on allegations of discrimination based on religion and national origin. id. the apa claims were rooted in a challenge to procedural deficiencies. id. at 180. 79 id. at 183. two third circuit cases supported el-ganayni’s contention that the court had jurisdiction to hear his challenge under webster. stehney v. perry, 101 f.3d 925, 932 (3d cir. 1996) (reversing district court’s determination that plaintiff’s constitutional claims were nonjusticiable under egan but affirming on other grounds); makky v. chertoff, 541 f.3d 205, 212–13 (3d cir. 2008) (citing stehney and reaching the merits of constitutional challenges to the revocation process, rather than the actual decision to revoke the security clearance). 80 el-ganayni, 591 f.3d at 186. on the third count, the third circuit reached the merits, concluding that the doe followed all “applicable regulations and executive orders in revoking el-ganayni’s clearance.” id. at 187. 81 zeinali v. raytheon co., 636 f.3d 544 (9th cir. 2011). 82 id. at 549–50. the zeinali court squared its decision with egan by finding that, instead of challenging the merits of his security clearance denial, zeinali was arguing that raytheon’s stated policy of requiring security clearance for the position was applied inconsistently as to the plaintiff. id. at 554–55. consequently, the mcdonnell douglas pretext inquiry was targeted at raytheon’s employment policies, not the security clearance determination. id. 83 see supra notes 56, 58, and 77. 2014 columbia journal of race and law             189   a. the facts of ratt igan mr. rattigan is an african american of jamaican descent and has worked as an attorney at the fbi since 1987.84 in 1999, he was transferred to the united states embassy in riyadh, saudi arabia, to serve as assistant legal attaché before being promoted to legal attaché in 2000; he converted to islam in 2001.85 after a late-2001 confrontation with his supervisor, rattigan filed an equal employment opportunity office complaint in january 2002, alleging requests for additional assistance and weapons had been denied on account of his race and that his supervisor had made racially-tinged threats.86 at about the same time, office of international operations special agent donovan leighton submitted a security clearance referral based on a long list of suspicious behavior he perceived during an october stint at the riyadh embassy.87 the grounds for the referral were: (1) rattigan wore traditional saudi clothing; (2) his contacts in saudi intelligence were looking for a wife for rattigan; (3) rattigan allegedly discussed attending parties with prostitutes he referred to as “nurses”; (4) rattigan was inattentive to an investigation of the 9/11 attacks; (5) rattigan went on a pilgrimage to mecca and could only be contacted through members of saudi intelligence; and (6) rattigan refused to allow other staff members to communicate with his saudi counterparts.88 most of these accusations were ultimately rejected and the security division closed the investigation, leaving rattigan with his security clearance (as of 2012, he was still employed by the fbi). he sued in 2004, alleging discrimination on the basis of race and national origin under title vii among several other claims.89 b. trial before the d.c. district court in a series of rulings which stretched over several years, the district court dismissed all of rattigan’s claims except for his title vii retaliation claim, based on a claim of retaliation for the eeoc report he filed alleging race/national origin discrimination.90 one business day before the trial was set to begin (and more than five years after the complaint was filed), the government lawyers filed a motion to dismiss for lack of subject matter jurisdiction.91 they argued that becerra and subsequent cases extended egan to preclude review of the decision to initiate a security clearance review.92 judge huvelle found these cases inapposite as the agency reached a final determination to deny or revoke the plaintiff’s security clearance in each case.93 because the case thus presented an issue of first impression, she went on to discuss egan in some detail. judge huvelle’s reading of egan grounds nonjusticiability in deference to the expertise of reviewing agencies and an understanding of the “sensitive and inherently discretionary judgment call” of whether to allow someone access to classified information.94 judge huvelle explained that such deference was unnecessary in the present matter, writing:                                                                                                                           84 rattigan i, 643 f.3d 975, 977 (d.c. cir. 2011). 85 id. 86 id. at 978. 87 id. 88 id. at 978–79. 89 id. at 979. 90 rattigan v. holder, 636 f. supp. 2d 89, 90 (d.d.c. 2009). 91 id. 92 the cases cited by the government are in note 58, supra. in denying the motion, judge huvelle also noted that ryan v. reno and bennett v. chertoff (both d.c. circuit cases) were not cited in the government’s brief. rattigan, 636 f. supp. 2d at 91–92. 93 rattigan, 636 f. supp. 2d at 92. judge huvelle explained that “egan and its progeny thus command that once the executive has determined that an individual is unworthy of a security clearance, the judiciary cannot probe the circumstances surrounding that determination for discriminatory or retaliatory animus.” id. (emphasis added). 94 id. (quoting dep’t of the navy v. egan, 484 u.s. 518, 527 (1988)). title vii challenges to security clearance referrals vol. 4:2     190   the security division concluded that leighton's concerns about plaintiff were unfounded. therefore, the fbi decisionmaking body responsible for making security determinations has already determined that plaintiff's activities were not inconsistent with the needs of national security. plaintiff does not challenge this determination—he embraces it. and, contrary to defendant's implication, there is no question before the court or the jury as to the reasonableness of the security division's investigatory process. rather, the only remaining question in this litigation is the legitimacy of the referral, by those who have no role in security clearance decisions, that triggered the security division's fact-gathering interviews.95 judge huvelle accordingly denied the government’s motion to dismiss.96 the case proceeded to trial and judge huvelle charged a jury with deciding the merits of rattigan’s claim. the judge gave careful instructions that the jury should avoid considering the merits of the review of rattigan’s security clearance and instead decide whether the “defendant [security division section chief shubert] initiated the security division investigation because rattigan made allegations of discrimination.”97 a jury found that the fbi had violated title vii by investigating rattigan’s security clearance.98 c. the first ruling of the d.c. circuit the fbi appealed the ruling to the d.c. circuit, renewing its argument that egan rendered nonjusticiable any review of rattigan’s title vii claim.99 they argued egan could not tolerate distinctions between agency officials based on familiarity or expertise in security matters and that the initiation of a security clearance investigation was entitled to the same level of deference as a final determination.100 in june 2011, a divided panel of the d.c. circuit reversed in part and upheld in part the decision below.101 writing for the court, judge tatel rejected the fbi’s first argument, finding that egan protected only fbi employees within the security division because the egan court emphasized that deference was proper only for the “predictive judgment by those with the necessary expertise in protecting classified information.”102 on this point, judge tatel distinguished seemingly-contrary language in egan, ryan, and bennett, saying that the supreme court has warned lower courts not to “dissect the sentences of the united states reports as though they were the united states code.”103                                                                                                                           95 id. at 93 (citations and footnotes omitted). 96 id. at 95. judge huvelle also offered a policy-based rationale to support her decision. she was concerned that “officials could present spurious national security allegations about a disfavored employee to another agency official who is, in fact, responsible for clearance determinations, and thereby insulate themselves from title vii review in a situation where the security clearance decisionmaker ultimately rejects the allegations as unfounded.” id. 97 rattigan i, 643 f.3d 975, 985 (d.c. cir. 2011). in the substance of the instructions, the district court apparently failed to insulate the jury from a determination foreclosed by egan. id. at 985–86. however, judge huvelle attempted exactly what the d.c. circuit would later approve of in rattigan i and ii. 98 id. at 977. 99 final brief for appellant, rattigan v. holder, 643 f.3d 975 (d.c. cir. 2011) (no. 10-5014), 2010 wl 4720741, at *21–22. 100 id. at *21–22, *29–30. 101 rattigan i, 643 f.3d at 977. 102 id. at 983. 103 id. at 983–84 (citing st. mary’s honor ctr. v. hicks, 509 u.s. 502, 515 (1993)). judge tatel distinguished several references to “agency” determinations in egan and subsequent cases. id. 2014 columbia journal of race and law             191   judge tatel was only somewhat more sympathetic to the fbi’s second contention, that decisions to initiate security clearance investigations are precluded by egan. in the words of the court, the egan problem was “invit[ing] the jury to look into [security division section chief] shubert’s decisionmaking process and assess his reasons for authorizing the investigation.”104 accordingly, the d.c. circuit vacated the jury verdict.105 however, that was not the end of the matter. while the decision by the security division to initiate the investigation on receipt of referral material was not reviewable, rattigan’s claim that his coworkers at the riyadh embassy retaliated against him by referring him for security clearance review could proceed on remand as a potential adverse employment action under title vii.106 to prevail on this challenge, rattigan would be required to prove the reasons for the referral were pretextual by showing the referring party “knew or should have known [the accusations] were false or misleading.”107 judge kavanaugh dissented, arguing that egan’s deference is not limited in scope to security decisions made by employees in the security division.108 quoting extensively from egan, kavanaugh accuses the majority of “slicing and dicing of the security clearance process into reviewable and unreviewable portions,” relying on a “single sentence” in the opinion.109 he cites ryan and bennett to support his broad view of deference, asserting that the security process “as a whole” was meant to be protected.110 finally, in an argument that would be seized upon by the government during the subsequent re-hearing, kavanaugh points to executive order 12,968 which reads: “[e]mployees are encouraged and expected to report any information that raises doubts as to whether another employee’s continued eligibility for access to classified information is clearly consistent with the national security.”111 for judge kavanaugh, “second-guess[ing] the decisions of agency employees who report security risks” could not be squared with egan and the executive order.112 d. the appeal for rehearing obviously concerned by the d.c. circuit’s limitation on the scope of egan deference, the fbi appealed the decision. in an unusual step, the d.c. circuit granted the appeal for re-hearing, certifying the following questions: (1) does egan's bar on judicial review of national security clearance decisions extend to actions by employees outside of the security division? (2) if egan's bar does not extend to decisions by employees outside the security division, would allowing title vii retaliation claims against such employees chill their reporting of information involving suspicion of national security concerns to the security division pursuant to executive order 12,968? if so, why? would departmental complaint procedures not also chill such reporting?113                                                                                                                           104 id. at 985. 105 id. at 986. 106 id. at 986–88. 107 id. at 988. 108 id. at 989 (kavanaugh, j., dissenting). 109 id. at 989–90. 110 id. at 991. 111 id. (citing exec. order no. 12,968, § 6.2(b), 60 fed. reg. at 40,245, 40,253 (aug. 2, 1995)). 112 id. 113 rattigan v. holder, no. 10-5014, 2011 wl 4101538, at *1 (d.c. cir. sept. 13, 2011). the d.c. circuit also certified a third question which showed where the court was heading: “(3) if the court were to allow title vii retaliation claims based on referrals of knowingly false information, does any record evidence in this case support such a claim? if not, should a remand be ordered?” id. title vii challenges to security clearance referrals vol. 4:2     192   the government’s brief focuses on two major arguments. the first is that egan could not be limited in application to employees with “necessary expertise.”114 this argument begins by repeating familiar egan arguments but then stridently asserts that because e.o. 12,968 requires all employees to raise potential security issues, egan extends to referrals.115 this bold assertion of executive power is supported in the government’s brief by reference to egan’s “separation-of-powers holding.”116 the appellants’ second argument is that judicial review of referrals “would likely chill necessary reporting by agency employees.”117 the argument proceeds by repeating bare assertions of a chilling effect, with reference to two supreme court opinions (which themselves simply posit such an effect).118 this claim will be taken up more fully in part iv.119 e. the d.c. circuit’s decision on rehearing on july 10, 2012, the court narrowed its ruling slightly, heightening the standard for title vii liability to claims based on referrals of knowingly false information.120 while judge tatel “agree[d] that [the court’s] earlier decision could indeed discourage critical reporting by permitting jurors to infer pretext based on their own judgment,” he found that “the government’s concerns are insufficient to justify the sweeping immunity from title vii liability that it seeks.”121 balancing the important goals of egan against “congressionally mandated protections against and remedies for unlawful retaliation in the workplace”122 represents a significant victory for the narrow reading of egan, which emphasizes the “unless congress specifically has provided otherwise” language from the court’s opinion. judge kavanaugh, the dissenter in rattigan i, was unmoved. he described the majority’s opinion on rehearing as a “slight[] tweaking [of] its analysis” and reprinted his original dissent.123 neither side ultimately filed a petition for writ of certiorari, although the government requested two extensions of the                                                                                                                           114 brief for appellant on panel rehearing, rattigan ii, 689 f.3d 764 (no. 10-5014), 2011 wl 4831233, at *6. 115 id. at *10–11. 116 id. at 12. this citation is a telling indicator of how far the government has stretched egan. while there is circuit precedent that supports this, see conyers v. dep’t of def., 115 m.s.p.r. 572, 590 (2010), discussion at infra note 136, re-casting egan as a separation-of-powers case ignores that at least the narrow holding was decided on statutory grounds. see also fisher, supra note 11. 117 brief for appellant on panel rehearing, supra note 114, at *26. 118 id. at 26–30 (citing bush v. lucas, 462 u.s. 367, 389 (1983) (positing, without data, that it is “quite probable” that when faced with the possibility of personal liability for disciplining actions, management personnel will be deterred from undertaking such actions) and anderson v. creighton, 483 u.s. 636, 646 (1987) (explaining, without data, that creating an exception to qualified immunity would “utterly defeat” the peace of mind that qualified immunity gives to public officials because they would not know whether they were protected by the rule or not)). the government’s brief also gives the salacious example of special agent robert hanssen, who allegedly financially supported an exotic dancer as he conducted espionage for foreign governments. id. at 29. it is hard to reconcile the appellant’s concern with chilling the reporting of such essential tidbits with the later assurance that “internal complaint procedures” provide an adequate check on instances where the employee knows or should know that the information is false. id. at 30–31. 119 at present, it suffices to say that there is disagreement as to whether the posited chilling effect would actually occur and, perhaps surprisingly, disagreement over whether the chilling would have a positive or negative impact on the quality of the underlying agency decisions. see infra part iii.d. 120 rattigan ii, 689 f.3d 764, 770 (d.c. cir. 2012). 121 id. at 769–771. 122 id. at 771; see also fisher, supra note 11, at 8–9. 123 rattigan ii, 689 f.3d at 773 (kavanaugh, j., dissenting). 2014 columbia journal of race and law             193   filing deadline.124 thus, rattigan will stand as the last word in the d.c. circuit regarding judicial review of security clearance referrals. f. the d.c. district court’s decision on remand because the jury in the original trial did not expressly find that rattigan’s supervisor knew the allegations underlying the security clearance referral were false, the d.c. circuit vacated the original verdict and remanded for discovery to determine whether there should be a new trial under the new heightened knowingly false standard.125 the district court granted defendants’ motion for summary judgment filed on the eve of trial.126 the court reasoned that because (crediting rattigan’s version of events) his co-workers fabricated several of the bases for the security referral and passed it along to his supervisor who forwarded it to the security division without ascertaining the truth of the events, rattigan could not show that his “employer” had knowingly passed on false information.127 furthermore, an intervening supreme court precedent, university of texas southwest medical center v. nassar,128 had heightened title vii’s requirement of a causal link between the animus and the adverse employment action to a “but for” cause.129 given that some of the allegations in rattigan’s referral were factually true (even if they were not cause to revoke his clearance), proving a particular piece of information was a “but for” cause of his security review would have required jurors “to determine the motivation for each statement in the [security referral report] in isolation,” violating egan, even as restricted by rattigan.130 thus, despite lending his name to a d.c. circuit opinion that this note argues broke new ground in restricting egan,131 mr. rattigan’s claim was dismissed almost twelve years after the underlying events took place. iv. rattigan’s effect on title vii and the egan doctrine part iv will make the central argument of this note: it will explain why rattigan matters. it will recount what the d.c. circuit decided and, critically, what it did not decide. it will also describe how district courts are applying rattigan to reject government lawyers’ motions to dismiss predicated on the broad egan approach. it will examine potential criticisms of the argument that rattigan is a significant decision, most notably that the case represents a false push-back on egan because its knowingly false standard sets the bar so high that few plaintiffs will be able to make out a successful challenge. this part will then take up the chilling argument pressed by the government and examine it critically through the lens of recent scholarship in a related area of the law.                                                                                                                           124 letter informing parties of justice roberts’s decision to grant application for extension of time to file a petition for writ of certiorari, rattigan v. holder, no. 10-5014 (d.c. cir. feb. 21, 2013). 125 the d.c. circuit explained, “because we set forth this knowingly false standard for the first time on appeal, rattigan had little reason to thoroughly develop evidence of knowing falsity in the district court. given this, and given that the record contains some evidence that could form the basis for a claim of knowingly false security reports, we shall remand for the district court, after permitting any necessary discovery, to determine in the first instance whether there is sufficient evidence of knowing falsity to allow rattigan to bring his claim before a jury.” rattigan ii, 689 f.3d at 773. 126 rattigan v. holder, civil action no. 04-2009 (esh), 2013 wl 5834481 (d.d.c. oct. 31, 2013). 127 id. at *6–9. one of the elements of a title vii unlawful retaliation claim is showing that a plaintiff’s supervisor—as opposed to a co-worker or subordinate—discriminated against the plaintiff. id. at *6 (citing mcgrath v. clinton, 666 f.3d 1377, 1380 (d.c. cir. 2012) (listing the elements of unlawful retaliation)). 128 univ. of tex. sw. med. ctr. v. nassar, 133 s. ct. 2517 (2013). 129 rattigan, 2013 wl 5834481, at *9–11. 130 id. at *11. the extensive trial record, uncontroverted nature of the relevant facts, and the intervening nassar precedent compelled the district court to deny rattigan’s request for additional discovery. id. at *11–12. 131 see infra part iv.a. title vii challenges to security clearance referrals vol. 4:2     194   a. the significance of ratt igan this note proposes that rattigan is significant for three reasons. the first reason is that the standard adopted in the case may allow dozens if not hundreds of future title vii challenges to proceed past summary judgment motions. it is impossible to know how many such challenges will be brought, but one starting point is classification and government secrecy. the staggering number of documents classified by the federal bureaucracy has been well treated elsewhere.132 these countless terabytes of classified data require secret-keepers with security clearances—4,917,751 government employees and contractors at the most recent published count.133 it is difficult to know how many of those employees are referred for security clearance review and how many of those referrals are based on knowingly false information, but the number may well be significant.134 however, it is not merely successful claims that have an effect on government bureaucracy. the threat of litigation may incentivize reform in the direction of having more accountability and oversight, and, if these claims are like most civil litigation, a large majority will end with settlements, rather than litigation carried through to judgment.135 the second reason rattigan is significant is that it represents the most significant rebuke yet to the expansive reading of egan discussed in part ii.136 part ii described the major features of the two readings of egan in some detail. a reader need not accept the arguments of critics of the broad reading (i.e. that a narrow statutory holding has evolved over time into an expansive separation-of-powers nonjusticiability doctrine) to acknowledge that there are two fair readings of the case. the rattigan decision is at least an uncomfortable fit with the broad reading and could represent a shift in legal trajectory surrounding egan. if no other egan cases before the d.c. circuit are resolved in a similar way, it will remain an outlier case. if, on the other hand, it represents new thinking by two of the more senior judges on the court, we may see more cases in the same line. concededly, it is difficult to quantify the importance of this development; however, the fact that the government did not file a petition for writ of certiorari in rattigan may show that government attorneys are nervous that the court could have affirmed the ruling or taken the opportunity to narrow egan more significantly.137 also, the d.c. circuit is known as the “administrative agency circuit,” so its view of the law is likely to have the greatest impact on the federal bureaucracy.                                                                                                                           132 see, e.g., steven aftergood, reducing government secrecy: finding what works, 27 yale l. & pol’y rev. 399, 400 (2009) (describing the scope of the overclassification problem and discussing various approaches to solving it); report of the commission on protecting and reducing government secrecy, s. doc. no. 105-2 (1997), available at http://www.gpo.gov/fdsys/pkg/gpo-cdoc-105sdoc2/content-detail.html. the report of the moynihan commission is still one of the most comprehensive treatments of the topic of overclassification. 133 see office of the dir. of nat’l intelligence, supra note 10. 134 it is beyond the scope of this note and resources of this student author to examine these numbers. however, this line of inquiry could be pressed in a subsequent work through freedom of information act requests. a clearer picture of the security clearance review process could aid examination of the government’s chilling argument, see infra part iv.d, and could help in evaluating the integrity of the security clearance program more generally. 135 see kevin m. clermont & stewart j. schwab, how employment discrimination cases fare in federal court, 1 j. empirical legal stud. 429, 440 (2004) (showing that almost 70% of civil employment discrimination cases settle). this figure is, however, slightly lower than the rate for other cases. id. the effect of rattigan on future title vii cases is also discussed in part iv.c, infra. 136 recent decisions of the full board of the mspb also showed some pushback on the broad reading of egan. in 2010, a full panel of the mspb held that egan only barred review of the decisions to revoke, deny, or suspend clearance to access classified information. conyers v. dep’t of def., 115 m.s.p.r. 572, 590 (2010) (holding that denial of eligibility to occupy a sensitive position was reviewable); northover v. dep’t of def., 115 m.s.p.r. 451, 467 (2010) (same). however, these decisions were consolidated for review and reversed by the federal circuit in berry v. conyers. berry v. conyers, 692 f.3d 1223 (fed. cir. 2012). the federal circuit affirmed this ruling after rehearing the case en banc. kaplan v. conyers, 733 f.3d 1148 (fed. cir. 2013). 137 of course, it could also be that the government feels that a knowingly false standard is such a high bar that few claims will meet it. this anticipated criticism is taken up in part iv.c, infra. 2014 columbia journal of race and law             195   the third reason that rattigan matters is that it is already having an impact on cases at the trial level. although it has been less than two years since the opinion was handed down, district courts have already applied it in dismissing defendants’ summary judgment motions. in burns-ramirez v. napolitano,138 the plaintiff, a secret service employee with almost thirty years of experience, filed suit under title vii, alleging that two suspensions and the ultimate revocation of her security clearance constituted adverse employment actions.139 defendants, invoking egan and rattigan, argued that the plaintiff’s claims were nonjusticiable because she ultimately had her security clearance revoked.140 in rejecting this argument, the district court rejected the approaches of several other circuits, explaining that rattigan is clear that “the actions of [non-security division] employees who knowingly and falsely refer a matter for investigation due to discrimination or retaliation are not protected from review.”141 the plaintiff in thomas v. johnson142 brought a title vii claim alleging he had been demoted and ultimately fired on the basis of his race and denied procedural protections similarly-situated white colleagues had received.143 the defendants filed a motion for judgment on the pleadings arguing that because mr. thomas had been fired for improperly permitting employees to work in sensitive positions pending determinations of their security clearances, egan rendered his claim nonjusticiable.144 in denying the motion, the court cited rattigan and firmly rejected this invocation of broad egan doctrine.145 yet another recent d.c. district court opinion acknowledged the significance of rattigan as a challenge to “extension[s] of egan.”146 the fifth circuit also recently acknowledged that rattigan “somewhat limited egan’s scope.”147 it is too early to tell, but it appears that rattigan may signify a new trajectory to egan jurisprudence in the d.c. circuit.                                                                                                                           138 burns-ramirez v. napolitano, 962 f. supp. 2d 253 (d.d.c. aug. 2013). 139 id. at 254–55. 140 id. at 257. this argument was reinforced by citations to precedents from several other circuits, including becerra v. dalton, hill v. white, and panoke v. u.s. army military police brigade. id.; see supra note 58. 141 id. at 258. 142 thomas v. johnson, civil action no. 13-359(gk), 2013 wl 6994525 (d.d.c. jan. 16, 2013). 143 id. at *1–2. 144 id. at *2. 145 id. at *3. the court distinguished defendants’ egan cases, writing “each of the cases cited involved an adverse employment action directly predicated on an unfavorable security clearance determination, such that adjudicating the plaintiff's employment claim necessarily required a merits review of the underlying security clearance decision.” id. even if the court were to credit defendants’ contention that thomas had granted interim security clearances, it noted, rattigan limited application of egan to “trained security division personnel,” which mr. thomas clearly wasn’t. id. at *3 n.3 (internal quotation marks and emphasis removed). 146 foote v. chu, 928 f. supp. 2d 96, 98–99 (d.d.c. 2013). judge kotelly contrasted the approaches of the conyers court and the rattigan court, noting that the conyers decision had been vacated and thus had no precedential effect. id. even though the case did not involve an allegation of a discriminatory referral, judge kotelly used the reasoning of rattigan to evaluate the plaintiff’s claims, illustrating the significance of the d.c. circuit’s decision. however, the court ultimately reached the opposite outcome from rattigan on the grounds that foote’s challenge was to final agency action (rather than a referral) and that the officials involved did possess the necessary expertise to be worthy of deference. id. at 100–01. the court granted the defendant’s summary judgment motion, following bennett and brazil in holding that the human reliability program was a national security decision that merited egan nonjusticiability. id. at 100–02. 147 toy v. holder, 714 f.3d 881, 885 n.8 (5th cir. 2013). the fifth circuit held that egan does not bar a title vii challenge to a building access decision but affirmed dismissal on grounds that access is covered by title vii’s national security exemption. id. at 885–87. in rejecting the government’s argument that the broad reading of egan covered building access determinations, the fifth circuit explained that “[s]ecurity clearances are different from building access; security-clearance decisions are made by specialized groups of persons, charged with guarding access to secured information, who must make repeated decisions.” id. at 885. by contrast, “[b]uilding access may be revoked, as in this case, by a supervisor, someone who does not specialize in making security decisions.” id. the court reasoned “a lack of title vii challenges to security clearance referrals vol. 4:2     196   two additional facts support the idea that rattigan represents sturdy precedent: (1) the same panel of the d.c. circuit heard and reheard the case and largely affirmed its earlier opinion and (2) judge rogers, author of the d.c. circuit’s opinion in bennett joined judge tatel in both opinions. twenty-five years of egan jurisprudence illustrate that aggressive lawyering by government counsel148 and judicial deference in the national security realm149 have led courts to adopt a broad nonjusticiability doctrine.150 the egan doctrine expanded through selective quotation, emphasizing broad constitutional language of the original opinion rather than the statutory analysis.151 consequently, there is ample material in the original opinion to support a narrower reading of egan, should the d.c. circuit adopt such a doctrine. b. unanswered questions although it represents a significant shift in the law, the rattigan court left several important questions unanswered. first, how should courts reconcile rattigan with ryan and bennett, cases where the court used egan to reject title vii claims entirely?152 the d.c. circuit’s original opinion discussed ryan and bennett, distinguishing rattigan from the rule set forth in those cases.153 the court’s rationale, however, is unavailing; it is counterintuitive that a title vii challenger who suffers the comparatively minor reputational harm that attaches to review that leaves her security clearance in place is allowed to bring her claim while her colleague that loses her security clearance and consequently her job (and quite possibly her career) due to knowingly false information cannot bring a claim. the d.c. circuit rules also highlight this tension: bennett cannot be overruled by another panel of the circuit without following formal procedures.154 because these procedures were not followed, the counterintuitive result that security clearance referrals leading to denials are nonreviewable while referrals like rattigan’s are justiciable appears to be the law in the d.c. circuit. however, as described above in part iii.a, a recent                                                                                                                                                                                                                                                                                                                                                                                                         oversight, process, and considered decision-making separates this case from egan, which therefore does not bar toy’s suit.” id. at 885–86. the fifth circuit even noted that their “decision is in accord with rattigan v. holder.” id. at 885 n.8. 148 for example, the government’s brief in rattigan cites to the “separation-of-powers holding” of egan. brief for appellant on panel rehearing, supra note 114, at *12. this shorthand statement made without elaboration shows a constitutionalization of the holding of egan, which was decided on statutory grounds according to louis fisher. see fisher, supra note 11. statements and writings by executive branch officials also show a bold vision of egan deference. see supra notes 31, 32, and 34. 149 see generally meredith fuchs, judging secrets: the role courts should play in preventing unnecessary secrecy, 58 admin. l. rev. 131, 132 (2006) (arguing that during times of war or national crisis, the government tends to keep more secrets and that increased judicial deference to government secrecy claims is contrary to the constitution’s system of checks and balances). security clearance decisions, though not discussed in fuchs’s article, present the same difficulties of high-stakes judgments and a lack of judicial experience compared to members of the executive branch. 150 indeed, as this note has attempted to show, circuits have diverged considerably on how to read egan. the words of the supreme court opinion have not changed, but interpretation has expanded the holding considerably. 151 see fisher, supra note 11 (tracking almost 200 treatments of egan to show evolution of the doctrine). 152 see supra note 28. 153 addressing the issue, the d.c. circuit wrote: “in contrast to the claims raised in ryan, bennett, and egan itself, rattigan's claim implicates neither the denial nor revocation of his security clearance nor the loss of employment resulting from such action.” rattigan i, 643 f.3d 975, 981 (d.c. cir. 2011). this appears to adopt the reasoning of judge huvelle’s opinion for the district court. see supra notes 90, 92, and 96. 154 to overrule the prior decision of another panel, the d.c. circuit must either rule on the subsequent case en banc or go through a process where a judge on the majority in the subsequent case submits the case to his or her colleagues for consideration and gets a majority to approve the new rule. see, e.g., united states v. southerland, 466 f.3d 1083, 1084 n.1 (d.c. cir. 2006); irons v. diamond, 670 f.2d 265, 268 n.11 (d.c. cir. 1981). only then can the new rule become the law of the circuit. southerland, 466 f.3d at 1084 n.1; irons, 670 f.2d at 268 n.11. because the court did not follow this procedure, it appears that bennett still controls in situations where the security clearance is denied. but see infra note 157. for a more thorough discussion of the procedures adopted by different circuits for overturning precedents, see phillip m. kannan, the precedential force of panel law, 76 marq. l. rev. 755 (1993). 2014 columbia journal of race and law             197   d.c. district court opinion held that ultimate revocation of a security clearance was not a complete bar to a title vii challenge, so long as the security clearance referrals were not made by “trained security division personnel.”155 this approach would mean that the identity of the referrer is more important than the outcome of the referral itself. if, notwithstanding this district court opinion, denial of a security clearance in fact does preclude review, what consequences would flow from such a regime? on a policy level, there are obvious concerns with insulating from liability referrals that result in denials.156 relatedly, could future litigants argue that the utmost deference to predictive judgments of the executive that egan speaks of is actually satisfied by the heightened knowingly false standard (rather than outright nonjusticiability)?157 if what triggers nonjusticiability under bennett and ryan is the denial or revocation of security clearance, could some form of interlocutory appeal to security clearance determinations be heard? in essence, the problem is one of line-drawing: a categorical rule that excluded even rattigan’s claims would be much easier to apply.158 if the d.c. circuit hears an appeal in burns-ramirez, the court might provide an indication whether title vii claims depend on the identity of the referrer, the outcome of the security clearance, or both. rattigan also does not provide meaningful guidance on the separation-of-powers issues that arise when the executive’s national security powers conflict with congress’s attempt to provide a remedy for discrimination in the workplace under title vii.159 while there does not seem to be significant interest in amending title vii or the national security act160 to provide for more substantial judicial review of                                                                                                                           155 the court rejected the government’s argument that a revocation or denial of security clearance precluded review, writing, “rattigan i and ii are clear that security personnel decisions regarding whether to investigate, suspend, or revoke a clearance are protected from review, but the actions of other employees who knowingly and falsely refer a matter for investigation due to discrimination or retaliation are not protected from review.” burns-ramirez v. napolitano, 962 f. supp. 2d 253, 257–58 (d.d.c. 2013). 156 the incentives would seem clear: when a referral comes to the security division that appears to be based on knowingly false information or motivated by discriminatory purposes, the division should revoke the security clearance to render any future claims nonjusticiable under bennett. of course, further study would be required to show that decision-makers are aware of these incentives and are willing and able to act on them. in some ways, these questions can be answered by reference to the discussion of chilling effects below. see infra part iv.d. 157 this appears to be the approach taken by the district court in burns-ramirez. burns-ramirez, 962 f. supp. 2d at 257 (“the d.c. circuit carefully balanced the need for security against a title vii claimant's rights, explaining ‘it is our duty not only to follow egan, but also to preserve to the maximum extent possible title vii’s important protections against workplace discrimination and retaliation.’ rattigan ii, 689 f.3d at 770. the circuit achieved this compromise by declaring that a title vii claimant may proceed only on a claim that an agency employee acted with retaliatory or discriminatory motive when knowingly reporting or referring false information to security. id. at 771.”). 158 these line-drawing problems may explain why the court felt the need to grant the government’s petition for re-hearing. the court seems to have felt the need to allow government lawyers to directly brief the issue of where the line would be set. see rattigan v. holder, no. 10-5014, 2011 wl 4101538 (d.c. cir. sept. 13, 2011) (questions presented on re-hearing). in berry v. conyers, the federal circuit appeared to grapple with the same problem; the federal circuit granted a re-hearing en banc, vacating (but subsequently preserving) an opinion that found egan categorically barred mspb review of discharge connected to denial of security clearance even in cases where the position did not require access to classified information. see berry v. conyers, 692 f.3d 1223 (fed. cir. 2012); see also supra note 136. 159 here, recall that the holding of egan was “unless congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the executive in military and national security affairs.” dep’t of the navy v. egan, 484 u.s. 518, 530 (1988) (emphasis added). 160 national security act of 1947, pub. l. 80–253, 61 stat. 495 (codified as amended at 50 u.s.c. ch.15). title vii challenges to security clearance referrals vol. 4:2     198   security clearance determinations, would such a statute be constitutional?161 if the instinctive answer is “of course congress can regulate,” consider the fact that the d.c. circuit granted a highly unusual rehearing in rattigan in part to consider the possibility that their previous ruling conflicted with an executive order.162 if egan’s so-called “separation of powers holding” calls for courts to defer not just to the fact of executive control but to the precise manner, there are legitimate questions about the power— judicial or legislative—to place limits on the president’s control. because these concerns address the issue of hypothetical conflicts that could arise from future legislation, they are outside the scope of this note. c. is it possible the government won ratt igan? perhaps the strongest criticism this note’s argument may face is that rattigan fails as a challenge to the broad reading of egan. under this theory, the government did not appeal rattigan because its attorneys are convinced that it was either a very minor defeat or a victory. as discussed above, bennett and ryan categorically bar title vii challenges to employees who have their security clearance revoked or denied. it stands to reason that there are relatively few employees who will feel aggrieved enough to litigate when they ultimately are allowed to remain in their position. future rattigans might also be deterred by fears of antagonizing their colleagues and superiors, with whom they will likely still be working. furthermore, without the possibility of recovering back pay, potential damage awards will be lower in these cases than in title vii challenges to terminations. this might make these cases less attractive to plaintiffs’ lawyers who work on contingency fee arrangements. these factors will undoubtedly reduce the number of claims that are brought. those that do proceed with litigation will find that knowingly false is a high standard to meet. proving that a security clearance referral was based on particular information will require careful discovery, especially in light of the state secrets privilege.163 even after proving that particular allegations                                                                                                                           161 the words of several former executive branch officials suggest a belief that the sole power to control access to sensitive information is vested in the president by the constitution. see supra notes 31, 32, and 34. because congress has not acted, these views have not been tested. 162 rattigan ii, 689 f.3d 764, 766 (d.c. cir. 2012) (“the government filed a petition for rehearing . . . arguing that our decision conflicts with both egan and reporting obligations established by the president [in executive order 12,968].”). 163 first recognized by the court in 1953 in reynolds, the state secrets privilege, if properly invoked, renders a claim nonjusticiable because proceeding with litigation would harm national security. see united states v. reynolds, 345 u.s. 1 (1953) (widows of civilians killed in an air force test plane crash had their case dismissed because litigating it would require revealing sensitive documents that would harm national security). courts have recognized the state secrets privilege in title vii challenges to terminations relating to final security clearance determinations, both before and after egan. see sterling v. tenet, 416 f.3d 338, 345–46 (4th cir. 2005) (african american cia agent’s title vii racial discrimination claims were barred by the state secrets privilege because litigating the factual issues surrounding his claim would result in “disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments”); molerio v. f.b.i., 749 f.2d 815, 823 (d.c. cir. 1984) (prior to egan, then-judge scalia found that a title vii racial discrimination claim failed on the third step of the mcdonnell douglas balancing test when the plaintiff failed to show that the denial of security clearance was pretextual while first amendment and foia/privacy act claims were barred by the state secrets privilege). for a thorough examination of published opinions where the state secrets privilege is actually invoked, see laura k. donohue, the shadow of state secrets, 159 u. pa. l. rev. 77 (2010). relevant to this note, professor donahue traces the history of its use as a defense in employment lawsuits back to 1883. id. at 189. she also argues convincingly that the threat by government lawyers to apply the state secrets doctrine may give them a tactical advantage. id. at 197–206. delays in litigation and the prospect of complete dismissal of the case may make it particularly difficult for plaintiffs with limited resources to continue litigating. id. the reason the state secrets privilege is treated in a footnote here is that, given the comparatively high cost for the government of invoking the privilege and the relatively low stakes of rattigan-style claims, it seems unlikely the government will invoke the privilege. also, a 2009 memo from attorney general holder outlined somewhat stricter parameters for invocation of the state secrets privilege. memorandum from eric holder, attorney gen. of the u.s., to the heads of exec. dep’ts & agencies on policies & 2014 columbia journal of race and law             199   formed the basis for the challenge, plaintiffs will have to prove that the referring employee actually knew that the allegations were false. for the government, nudging the standard higher than “knew or should have known” (as it stood after rattigan i) might have made the case a less significant defeat, if not a partial victory. notwithstanding these arguments, there are several reasons why rattigan cannot be considered a victory for the government. first, as described above, district courts have rejected motions to dismiss title vii claims invoking broad egan doctrine in cases involving security clearance referrals or even denials.164 second, anecdotal evidence suggests the prejudice faced by rattigan is not unique to his case. incredibly, both rattigan’s immediate supervisor, bassem youssef,165 and his immediate subordinate, gamal abdel-hafiz,166 in the legal attaché’s office in riyadh have publicly alleged religious and national origin discrimination, although none of the allegations related to security clearance referrals. though, like rattigan, abdel-hafiz was ultimately reinstated, the experiences of these three men may indicate that other muslim and/or arab employees of the fbi may face discriminatory abuses of the security clearance system. in addition to a possible pattern of discrimination in at least one bureau office, it                                                                                                                                                                                                                                                                                                                                                                                                         procedures governing invocation of the state secrets privilege (sept. 23, 2009) (outlining new, higher standards for invoking the state secrets privilege, creating a special review committee, and requiring the personal approval of the attorney general for each invocation). 164 see discussion of burns-ramirez v. napolitano and thomas v. johnson, supra part iv.a. 165 bassem youssef, rattigan’s supervisor in riyadh, filed a title vii challenge, alleging religious and national origin discrimination because, after september 11, he was posted to several positions that were below his grade and experience. youssef v. f.b.i., 687 f.3d 397, 399–401 (d.c. cir. 2012). while youssef is in fact an egyptian-born coptic christian, he allegedly faced discrimination based on the perception of being a muslim. id. at 400. the d.c. circuit reversed a district court’s grant of summary judgment to the government on mr. youssef’s title vii discrimination claim. id. at 401–02. a jury found against youssef on his retaliation claims, a verdict that was upheld on appeal. id. despite facing discrimination, bassem youssef, the legal attaché before rattigan, was subsequently appointed as a unit chief and is the highest-ranking fluent arabic-speaker in the bureau. bassem youssef, nat’l whistleblowers center, http://www.whistleblowers.org/index.php?option=com_content&task=view&id=85 (last visited apr. 5, 2014). 166 gamal abdel-hafiz was accused of refusing to cooperate with an investigation of financing of terrorist groups by wearing a concealed recording device, saying that “a muslim doesn’t record another muslim,” according to interviews with another fbi agent. marlena telvick, the story of gamal abdel-hafiz: former agent in the fbi's international terrorism squad, pub. broadcasting service/frontline (oct. 16, 2003), http://www.pbs.org/wgbh/pages /frontline/shows/sleeper/fbi/gamal.html. according to several news articles, the remarks were taken out of context; mr. abdel-hafiz apparently was explaining he was concerned for the safety of his family in the u.s. and egypt because, culturally, such a recording would be considered a betrayal. id.; michael isikoff, the bureau, newsweek (oct. 19, 2003), http://www.thedailybeast.com/newsweek/2003/10/19/the-bureau.html (adding also that mr. abdel-hafiz had worn a wire to record meetings with muslim suspects on at least two previous occasions). a few months after his dismissal, abdel-hafiz was reinstated. cam simpson & todd lighty, muslim fbi agent to be reinstated, lawyer, source say, chicago trib., feb. 26, 2004, news, at 18, available at http://articles.chicagotribune.com/2004-02-26/news /0402260216_1_senior-fbi-official-terrorism-investigations-chicago-fbi. according to confidential sources contacted by the tribune, the real reason for his termination was a fraudulent insurance claim that he allegedly filed 14 years before his termination; it was apparently submitted to the bureau by his ex-wife. id. mr. abdel-hafiz also filed suit against fox and abc news, alleging defamation in connection with news reports about the circumstances of his erroneous termination. abdel-hafiz v. abc, inc., 240 s.w.3d 492 (tex. app. 2007) (finding a lack of jurisdiction over fbi agents that gave interviews to abc news and a lack of actual malice by reporters for the news network); fox entm’t group, inc. v. abdel-hafiz, 240 s.w.3d 524 (tex. app. 2007) (same result for suit against fox news and bill o’reilly). abdelhafiz, who worked as assistant legal attaché under rattigan, was erroneously discharged from the bureau in 2003, allegedly because of concerns over his loyalty. michael isikoff, the bureau, newsweek (oct. 19, 2003), http://www.thedailybeast.com /newsweek/2003/10/19/the-bureau.html. title vii challenges to security clearance referrals vol. 4:2     200   appears that internal procedures failed to prevent a discriminatory referral, at least in the case of rattigan.167 another reason to think rattigan is a defeat for the government is that future plaintiffs may achieve a favorable settlement, even if they do not take their cases to trial. every challenger will by definition be an employee in a sensitive government position and will be able to tell a jury that he or she was determined still fit for security clearance by the reviewing agency. the government will likely consider the sympathies of juries in deciding whether to litigate or settle future claims. accordingly, there may be a substantial number of settled cases. the response on burden of proof and damages (for cases that do proceed to trial) is that while both will serve to limit the number of claims that are litigated, those that are worth litigating will be examples of truly egregious misconduct. indeed, the high standard of proof shouldered by plaintiffs could necessitate significant discovery. this discovery process, even if limited by the state secrets doctrine, could be quite burdensome to the government: it could attract media interest, expose embarrassing misconduct, and impose significant administrative costs. for this reason, simply surviving a summary judgment motion could well mean a financial settlement.168 ultimately, the reason why rattigan is not a victory for the government is that, as set forth in part i, the broad reading of egan has provided a safe harbor in similar situations. government lawyers argued for nonjusticiability before the district court and were rebuffed. they argued for nonjusticiability before the d.c. circuit twice and were rebuffed twice. egan does not bar challenge to security clearance referrals where the employee retains his or her security clearance.169 although the government did not file a certiorari petition, it is becoming increasingly clear that the government lost rattigan, as we see district judges interpret and apply it to rule in favor of title vii plaintiffs on summary judgment motions. d. will narrow judicial review of security clearance referrals based on racist, discriminatory, or otherwise knowingly false information chill reporting? it is worth separately analyzing the chilling argument raised by the government in its brief on rehearing. the intuitive appeal of the claim that review of security referrals will result in a chilling of reporting with resultant ill-effects on national security may not stand up to further scrutiny. in a recent work, professor gia lee critically scrutinized the so-called presidential privilege, concluding that the alleged chilling effect of disclosure requires several caveats.170 professor lee’s factors provide a useful framework to analyze the claim that review of security clearance referrals will chill candor. in particular,                                                                                                                           167 the government argued in its briefs that “internal complaint procedures” will weed out most objectionable referrals or punish those who make them. brief for the appellant on panel rehearing, supra note 114, at 30–31. when salacious claims like those made about rattigan did not merit reprimand (we can safely assume that had there been sanctions, the government would have brought them to the court’s attention), it seems unlikely that these procedures are robust enough to stop actionable title vii discrimination from occurring. for more discussion of the inefficacy of internal measures, see infra part iv.d. 168 in thomas v. johnson, the plaintiff survived a rule 12(c) motion for judgment on the pleadings. thomas v. johnson, civil action no. 13-359(gk), 2013 wl 6994525 (d.d.c. jan. 16, 2014). the docket indicates the case is ongoing. similarly, in burns-ramirez v. napolitano, several of the plaintiff’s title vii claims survived a motion to dismiss under rattigan, although others were barred by egan. burns-ramirez v. napolitano, 962 f. supp. 2d 253 (d.d.c. aug. 2013). as in thomas, the case appears to be ongoing. although neither of these cases have yet settled, surviving motions to dismiss will put these and future similarly-situated plaintiffs in a stronger position to settle or litigate future cases. 169 rattigan ii, 689 f.3d 764, 768 (d.c. cir. 2012). 170 gia b. lee, the president’s secrets, 76 geo. wash. l. rev. 197 (2008). with respect to chilling effects on candid advice, lee proposes that at least five factors affect the extent and nature of chilling: 1) timing of anticipated disclosure; 2) anticipated disclosure’s level of detail; 3) identity of the anticipated parties who will gain access to disclosures; 4) the certainty of actual disclosure; and 5) the form of disclosure. id. at 221–25. 2014 columbia journal of race and law             201   the considerable delay between reporting and disclosure (the events in rattigan, for example, took place three years before mr. rattigan filed suit, eight years before the trial, and more than a decade before final determination of the claim), coupled with significant uncertainty of eventual disclosure (only a small minority of claims will ever be litigated) and the manner in which such referrals would be released (likely as evidence in a multi-count lawsuit without significant media attention) all would seem to point away from meaningful chilling here. the chilling effect is also weakened because title vii discrimination claims are brought against the government rather than individual employees in their personal capacity.171 a 2002 federal statute, the no fear act, does provide that federal employees may be disciplined for title vii violations and that damage awards must be paid out of the agency’s own budget (through reimbursement to the treasury).172 however, it seems unlikely that any employee rash enough to report false and discriminatory allegations would spend significant time contemplating the possible fallout under multiple federal statutes. it is also important to consider what particular speech will be chilled. knowingly false referrals are by definition unhelpful to the security clearance process.173 or, in the words of the rattigan court, “the security division cannot possibly be assisted by employees who knowingly report false information—that is, outright lies—about fellow employees.”174 of course, it will not be exclusively false referrals that are chilled: the threat of litigation (remote though it may be) might deter a few employees from reporting hunches or suspicions that are sincere. but this must be balanced by the benefit to the security clearance review system of having to deal with fewer referrals that the referring employee knows to be false, freeing up resources to focus on referrals grounded in genuine loyalty concerns.175 equally troubling for the government’s argument is ms. lee’s more controversial point: lessthan-candid speech may actually be better-reasoned and provide more useful information to a decisionmaker.176 racially-derogatory epithets and stereotypes, the two examples ms. lee cites, are exactly the kind of information that would be targeted by future title vii litigation;177 it is certainly worth considering what value, if any, such speech has to security clearance determinations. furthermore, when left to its own devices, the national security apparatus has occasionally made potentially destructive and counter-productive decisions.178 an assessment of the effects of security clearance law on translators and language experts would be another excellent contribution to scholarship in this area.                                                                                                                           171 rattigan ii, 689 f.3d at 769. 172 notification and federal employee antidiscrimination and retaliation (“no fear”) act of 2002 § 203, pub. l. no. 107-174, 116 stat. 566 (2002). 173 of course, there is the possibility that a security clearance review begun by a malintentioned, knowingly false referral might reveal unrelated, credible reasons to suspect the clearance holder. however, a plaintiff’s later challenge would likely be nonjusticiable under ryan and bennett (if the security clearance is ultimately denied or revoked) and it is dubious at best to justify discriminatory actions based on the random possibility that the victim might turn out to be undeserving of the security clearance for other reasons. 174 rattigan ii, 689 f.3d at 770. 175 of course, supporters of egan deference would argue that striking the right balance between increased credibility and foundation of referrals against chilling hunches and speculation is the province of the executive branch. this constitutional argument was discussed above in tracing the egan doctrine. see supra parts ii.a through ii.c. 176 lee, supra note 170, at 232. 177 apart from the detrimental candid speech that disclosure may avoid, benefits of more openness may include better reasoned referrals, an ability to pierce groupthink, and greater reliance on rational principles instead of gut feelings. id. at 234–42. 178 rattigan’s colleagues, by all accounts qualified and indeed exemplary fbi agents, faced serious discrimination. see supra part iv.c. relatedly, it is difficult to justify, at least on national security grounds, the application of “don’t ask don’t tell” to discharge homosexual language experts during wartime. see supra note 76. title vii challenges to security clearance referrals vol. 4:2     202   even assuming that the effect would be significant, would such chilling weaken or strengthen the security clearance process? in an almost marbury-an twist,179 it may be that by giving up power (opening the referral process to greater judicial scrutiny), the executive will actually get more power over the process. compare this to the theory of professor david pozen, who has argued that a permissive culture of government leaks, while occasionally destructive of executive power in the short-term, “sustain[s] the institution’s credibility and legitimacy and thereby secur[es] popular approval of further grants of discretionary authority.”180 it’s not difficult to apply this logic to security referrals: if the government submits to occasional judicial review of referrals, the credibility of final determinations (which are not subject to review) will increase over the long run. more broadly, limited judicial oversight of one aspect of the security clearance process may lend legitimacy to the entire classification regime, an area where many (both in and out of government) have argued government credibility is sorely lacking.181 beyond the benefits to external credibility of the security clearance regime, there may be a correlation between judicial oversight of the referral process and employee buy-in to the broader classification regime.182 in the same way that a belief that only truly sensitive documents are being marked top secret would be expected to lead to more careful stewardship of those documents, a belief that those charged with carrying out security clearance determinations do so in a conscientious way might be expected to result in more respect for the system.183 this “employee buy-in effect” might give another reason why enhanced review of security clearance referrals would help rather than hinder the underlying goals of the system. critics of this theory might argue that what professor pozen refers to as “power-reducing firstorder effects” may chill the referral of double agents and spies that have slipped through the cracks.184 perhaps such individuals are disproportionately likely to be members of groups that are protected by title vii (which covers, among other things, national origin discrimination). well short of such alarmist                                                                                                                           179 of course, this superficial reading of chief justice john marshall’s opinion in marbury as giving up power to get power is little more than a high school civics course cliché—however, what it lacks in doctrinal rigor it makes up for in staying power. 180 david pozen, the leaky leviathan: why the government condemns and condones unlawful disclosures of information, 127 harv. l. rev. 512, 574 (2013). professor pozen specifically focuses on the “secretive realms of national security and foreign policy, where congressional and judicial checks are least robust and the executive’s activities least visible to the average citizen.” id. 181 id. at 575 (describing the official secrecy system as “bloated” and not able to “inspire trust”); see, e.g., too many secrets: overclassification as a barrier to critical information sharing: hearing before the subcomm. on nat’l sec., emerging threats & int’l relations of the h. comm. on gov’t reform, 108th cong. (2004); report of the commission on protecting and reducing government secrecy, s. doc. no. 105-2, at 19–48 (1997), available at http://www.gpo.gov/fdsys/pkg/gpo-cdoc-105sdoc2/content-detail.html. 182 this idea may be particular to the security referral context. while it is somewhat difficult to imagine government employees feeling proud of working in a leaky bureaucracy (at least in their official capacities), it is possible that enhanced oversight of the referral process may engender feelings of respect towards the institutional culture surrounding government secrets. 183 this respect could manifest itself in several ways: more care taken not to divulge information that is beyond a fellow employee’s security clearance, more cooperation with the security review and referral process (which could include heightened vigilance of truly suspicious activities of co-workers), and less of a feeling that security clearance determinations are arbitrary or unfair. also, perceptions of the security clearance system are undoubtedly linked to perceptions of the classification system. executive officials could view an overhaul of the referral system as part of a broader effort to reform the classification scheme. see, e.g., exec. order no. 13,526, 75 fed. reg. 707 (dec. 29, 2009). 184 pozen, supra note 180, at 576. professor pozen notes that the ultimate source of “power-enhancing second and third-order effects” is the “power-reducing first-order effects.” id. supporters of broad egan deference would argue that, even if there are a hundred referrals based on unsavory or impolitic accusations for every hunch that proves to reveal a double agent, saboteur, or future security breach, we must err on the side of national security. 2014 columbia journal of race and law             203   arguments, the judiciary’s focus on individual rights might simply be ill-suited to make the determinations in the national security realm. critics may bolster this point (as the government did in rattigan) by arguing that internal mechanisms can address isolated instances of discrimination or retaliation.185 right or wrong, judges do, in general, seem to defer in areas where the consequences of mistakes could be severe and putting probability values on outcomes is difficult.186 while these arguments have some force, it is difficult to see how a knowingly false standard like that set forth in rattigan could represent a significant paradigm shift in this regard. it seems more likely to provide exactly the credibility-building imprimatur described by professor pozen without significant costs either in government liability or increased false negatives on the referral end. v. conclusion this note was not intended to (and did not unintentionally) discover heretofore unnoticed wisdom in title vii or the egan doctrine. it sought to situate a recent ruling of the d.c. circuit in a broader legal framework and argue that it represents a significant legal development. as has been outlined here, rattigan is an uncomfortable fit with many of the cases decided before it, including cases in the d.c. circuit. the first few district court cases to apply rattigan have treated invocation of the broad egan doctrine with skepticism. going forward, courts will continue to consider both the narrow and the broad reading of egan in evaluating challenges to security clearance referrals. the d.c. circuit showed conviction in preserving its essential holding on rehearing. its opinion in rattigan points the way towards an appropriate judicial role in supervising security clearance referrals.                                                                                                                           185 professor sunstein has written that, in the national security realm, “[d]eliberative processes within a unitary branch are likely to lead to an amplification of preexisting tendencies, not toward a system of internal checks and balances.” cass r. sunstein, minimalism at war, 2004 sup. ct. rev. 47, 75 (2004). 186 see fuchs, supra note 149 (showing that in the foia context, despite clear congressional intent to provide for robust judicial review, courts have largely deferred to assertions of privilege by executive branch lawyers). title vii challenges to security clearance referrals vol. 4:2     204       columbia journal of race and law vol. 12 july 2022 no. 1 building a guaranteed income to end the “child welfare” system melody r. webb, esq. i. disparities in the child welfare system ..........................................670 a. the child welfare system is racialized ....................................670 b. current child welfare policies reflect historically racialized approaches to child welfare and cash assistance programs. .................................................................671 c. anti-black racist policies demobilize black american parents .......................................................................................674 ii. confronting the risk factor for neglect ...........................................675 a. american policymakers and child welfare system actors conflate poverty with neglect ...................................................675 b. economic assistance to families with limited resources plays a positive role in ameliorating maltreatment factors........................................................................................677 c. policymakers fail to fund anti-poverty initiatives .................679 d. decision-makers could opt to empower parents with financial assistance ..................................................................680 iii. the solution: empowering families to demand that the child welfare system address poverty ......................................................681 a. goals ..........................................................................................682 b. initiatives ...................................................................................682 iv. conclusion .........................................................................................687  melody webb, esq., is the executive director of mothers outreach network, inc. 2022] building a guaranteed income 669 the united states is on track to reduce child poverty by nearly fifty percent through the expansion of the child tax credit (“ctc”) in the american rescue plan act of 2021.1 but the policy will deliver even more. the ctc is also expected to facilitate parent agency and propel parent and child social mobility.2 furthermore, because of the strong connection between poverty and the risk for child maltreatment,3 the program will likely galvanize a reduction in child welfare cases and clear a critical path to eliminate the “child welfare” system (“cws”).4 in fighting what is apparently a renewed war on child poverty, the time is ripe for policymakers to reimagine and dismantle the cws. its practices exacerbate the deep poverty of women and children, hasten family instability, and demobilize already marginalized communities. part i of this piece provides background on disparities in the cws and discusses how policymakers have excluded black american families from needed public aid, accelerating their risk for child welfare intervention.5 part i then argues that policymakers have used the cws to police poverty and to regulate black families. part ii asserts that poverty presents a risk factor for neglect and that policymakers should target poverty elimination as a means of reducing the incidence of child neglect. part iii discusses the efforts of the non-profit organization mother’s outreach network (“mon”) around this issue. mon uses a community lawyering framework6 to build the power of parents in disrupting the cws by focusing on the goal of economic security for families. 1 christopher pulliam & richard v. reeves, new child tax credit could slash poverty now and boost social mobility later, brookings (mar. 11, 2021), https://www.brookings.edu/blog/up-front/2021/03/11/new-child-tax-credit-could-slashpoverty-now-and-boost-social-mobility-later/ [https://perma.cc/fm7n-yg8x]. but see child. def. fund & ctr. for the study of soc. pol’y, to reach every child, the child tax credit eligibility requirements must be changed (2021), https://www.childrensdefense.org/ wp-content/uploads/2021/06/ctc-qualifying-child.pdf [https://perma.cc/8bf2-tj52] (noting that despite the benefits of the ctc, current policies nevertheless pose significant barriers to the ability of biological parents of children in foster care to secure the ctc for their kids). 2 pulliam & reeves, supra note 1. 3 brenda jones harden et al., the child maltreatment prevention landscape: where are we now, and where should we go?, 692 annals am. acad. pol. & soc. sci. 97, 104 (2020). 4 this piece refers to the system of actors in government agencies, courts, and private sector who implement the u.s. government’s concept of child welfare, namely “a continuum of services designed to ensure that children are safe and families have the necessary support to care for their children successfully.” child. bureau, u.s. dep’t of health & hum. servs., factsheet: what is child welfare? a guide for educators (2018), https://www.childwelfare.gov/pubpdfs/cw_educators.pdf [https://perma.cc/jj5rrqaa]. this piece interrogates the effectiveness of this system. 5 this piece focuses on black families. latinx and native american children also have a long history of overrepresentation in the cws. see upend, frequently asked questions, https://cssp.org/wp-content/uploads/2020/05/upend-external-faq.pdf [https://perma.cc/kh8g-3l3r] (last visited dec. 21, 2021). 6 “community lawyering” and “movement lawyering” are used interchangeably in this piece to denote an approach that uses community-building and advocacy-related activities to generate social change and support community initiatives. see charles elsesser, community lawyering – the role of lawyers in the social justice movement, 14 loy. j. pub. int’l l. 375, 376 (2013) (describing various definitions and conceptions of community lawyering). 670 colum. j. race & l. [vol. 12:667 i. disparities in the child welfare system a. the child welfare system is racialized. the official count of children in the cws nationally is nearly one half million.7 this figure excludes the large number of children believed to occupy the “hidden” or “shadow” kinship foster system that cws uses to place children outside their homes,8 and it omits the number of children that cws agencies monitor in their homes.9 cws involvement is strongly correlated with race, having a single mother, and being poor.10 black children are disproportionally represented across the american cws,11 including in the foster care system.12 for example, in the district of columbia, black children comprise eighty-two percent of foster system cases,13 as compared to fifty-two percent of children in the city.14 black parents are more likely to be surveilled and investigated by child welfare agencies and to have their children removed and remain in foster care for long periods of time.15 black families are also more prone to losing their children to adoption.16 7 child. def. fund, the state of america’s children 2021, at 64 (2021). the number of children in the country who have been impacted by the cws more generally (such as by receiving an investigation response or experiencing other forms of cws involvement) is in the millions––3,476,000 in 2019. child. bureau, u.s. dep’t of health & hum. servs., child maltreatment 2019, at ii (2019) [hereinafter child maltreatment], https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2019.pdf [https://perma.cc/ 8ma8-3jwy]. 8 see angie schwartz & cathy krebs, addressing hidden foster care: the human impact and ideas for solutions, a.b.a. (mar. 31, 2020), https://www.americanbar.org/groups/ litigation/committees/childrens-rights/articles/2020/addressing-hidden-foster-care-thehuman-impact-and-ideas-for-solutions/ [https://perma.cc/q5pq-r7mg] (describing the practice by which child welfare agencies, without court review, coerce parents into placing their child with a relative to avoid the child’s placement in foster care). see also lizzie presser, how ‘shadow foster care is tearing families apart, n.y. times (dec. 2, 2021), https://www.nytimes.com/2021/12/01/magazine/shadow-foster-care.html [https://perma.cc/ fv39-g9lh] (discussing how government agencies that need to reduce their caseloads use this unofficial system that harms children and families). 9 see alan dettlaff et al., it is not a broken system, it is a system that needs to be broken: the upend movement to abolish the child welfare system, 14 j. pub. child welfare 500, 504 (2020) (describing the harmful effects of child welfare surveillance in the home). 10 tanya cooper, racial bias in american foster care: the national debate, 97 marq. l. rev. 215, 226 (2013). 11 shanta trivedi, the harm of child removal, 43 n.y.u. rev. l. & soc. change 523, 536–38 (2019). 12 according to 2018 data, black children were 13.71% of the population, yet 22.75% of children in foster care were black. disproportionality and race equity in child welfare, u.s. dep’t nat’l conf. of state legislatures (jan. 26, 2021), https://www.ncsl.org/ research/human-services/disproportionality-and-race-equity-in-child-welfare.aspx [https://perma.cc/74wa-ve4q]. 13 see foster care demographics, child & fam. servs. https://cfsadashboard.dc. gov/page/foster-care-demographics [https://perma.cc/4qew-z5yv] (last visited june 15, 2022). 14 see child population by race in district of columbia, annie e. casey found. kids count data ctr. https://datacenter.kidscount.org/data/tables/103-child-populationby-race [https://perma.cc/q96c-mffv] (last visited june 15, 2022). 15 cooper, supra note 10, at 242. 16 trivedi, supra note 11, at 540. 2022] building a guaranteed income 671 b. current child welfare policies reflect historically racialized approaches to child welfare and cash assistance programs. looking to child welfare programs as mechanisms for poverty relief and family regulation is not new in the united states.17 for example, for over a century, america sent tens of thousands of indigenous children to boarding schools for cultural reeducation—an example of cultural genocide which secretary of the interior deb haaland has described as an “attempt to wipe out native identity, language and culture.”18 between 1854 and the 1930s, large american cities sent more than 200,000 impoverished children on “orphan trains” to families in midwestern cities.19 and in the nineteenth century, states accelerated erecting institutions for children separated from their parents, reflecting a growing belief their parents ought to be punished for their “immorality.”20 these reformer-era changes reframed child welfare. where child welfare had once been framed as social welfare, designed to relieve the ills of poverty, it expanded during this era into a child protection system focused on investigation and parents’ depravity.21 accordingly, special justices could now base a finding of child neglect on the mother being a “notorious or immoral woman” or an adulteress convicted of fraud, or allowing her child in a house of prostitution.22 through their efforts to extend state authority over parental control, progressive-era reformers, some historians theorize, hoped to retain social hegemony over the growing population of working-class and immigrant families.23 societies for the prevention of cruelty to children, first founded in new york city in december 1874, were private agencies that mushroomed to over 150 nationwide within twenty-five years. 24 created and empowered to act as 17 see judith c. areen, intervention between parent and child: a reappraisal of the state’s role in child neglect and abuse cases, 63 geo. u. l. ctr. 887, 895–96 (1975) (describing the elizabethan poor law in which children of the poor were put to work or into apprenticeships). 18 deb haaland, deb haaland: my grandparents were stolen from their families as children. we must learn about this history., wash. post. (june 11, 2021, 9:00 am), https://www.washingtonpost.com/opinions/2021/06/11/deb-haaland-indigenous-boardingschools/ [https://perma.cc/rhf6-wsyr]; see also american indian boarding schools haunt many, npr (may 12, 2008, 12:01 am), https://www.npr.org/templates/story/story.php? storyid=16516865 [https://perma.cc/x3rx-n5kp]. 19 angelique brown, orphan trains (1854-1929), soc. welfare hist. project (2011), https://socialwelfare.library.vcu.edu/programs/child-welfarechild-labor/orphantrains/ [https://perma.cc/2a43-fc2b]. 20 areen, supra note 17, at 903–04 (explaining the transition of neglect proceedings in the states from explicit poverty relief to protection from “parental immorality”); dorothy roberts, shattered bonds: the color of child welfare 7–8 (2002) [hereinafter roberts, shattered bonds]. 21 dorothy roberts, prison, foster care, and the systemic punishment of black mothers, 59 ucla l. rev. 1474, 1492–93 (2012) [hereinafter roberts, the systemic punishment of black mothers]. 22 see areen, supra note 17, at 903 n.91. 23 clare huntington & elizabeth s. scott, conceptualizing legal childhood in the twenty-first century, 118 mich. l. rev. 1371, 1389 (2020). 24 societies for the prevention of cruelty to children, encyclopedia.com, https://www.encyclopedia.com/children/encyclopedias-almanacs-transcripts-and-maps/ societies-prevention-cruelty-children [https://perma.cc/cke5-6bwc] (last visited june 19, 2022). 672 colum. j. race & l. [vol. 12:667 law enforcement agencies25 with agents, the societies “focused on punishing cruel parents rather than on the provision of better environments for children.”26 black families escaped this scrutiny as the migration of black people from the south to the cities of the north did not ensue until the late 1910s. 27 ironically, twentieth-century child welfare was inherently racialized, even as it excluded black children. the majority of foster care institutions barred black children until the 1950s.28 yet by 2000, black children comprised the largest group of children in foster care.29 this figure climbed in tandem with integration in the post-civil rights era. the myth of rescuing black children drove their overrepresentation in the american cws, causing life-long harm and trauma to families.30 studies report that children suffer emotional and psychological trauma of separation, and possible further abuse.31 scholars observe “it is far from clear that the child welfare system has improved outcomes, particularly for the 437,000 children in foster care.”32 the systemic problems of the cws include children’s exposure to abuse and neglect while in care and violence from other children and adults, including the police.33 this was the case for teenager makia green in columbus, ohio in 2021 who was fatally shot at a foster home by a police officer called to resolve a dispute involving the victim.34 cws can levy emotional and psychological damage upon children and their parents, including the subjugation of children and their families in shadow arrangements that coerce parents into surrendering their children and their rights without counsel in care arrangements.35 this contributes to children developing depression, sleep disturbance, substance use, and post-traumatic stress disorder.36 amidst this shift in child welfare policies, american policymakers repeatedly denied equitable public aid to black families. since the reconstruction era, legislators have failed to advance anti-poverty measures supporting the well-being of black children. in the late 25 id. 26 see areen, supra note 17, at 903–04. 27 isabel wilkerson, the warmth of other suns: the epic story of america’s great migration 8–15 (2010). 28 roberts, shattered bonds, supra note 20, at 7 (noting that the few institutions, or “colored orphan asylums,” that took in black children were vastly outnumbered and terribly overcrowded. for example, the 1923 census reported that out of 1,070 institutions in 31 northern states, 35 institutions took in black children only, 264 accepted all races, and 711 accepted only white children). 29 id. at 8. 30 trivedi, supra note 11, at 531. 31 id. at 528. 32 huntington & scott, supra note 23, at 1389–90. 33 see, e.g., m.d. ex rel. stukenberg v. abbott, 907 f.3d 237, 243, 271–88 (5th cir. 2018) (upholding much of the trial court’s determination that texas had violated the constitutional rights of the approximately 12,000 children in foster care, including by exposing them to abuse and neglect while in care; further, upholding much of a sweeping remedial order to address problems systemic to foster care system). 34 nicholas bogel-burroughs et al., ma’khia bryant’s journey through foster care ended with an officer’s bullet, n.y. times (may 8, 2021), https://www.nytimes.com/ 2021/05/08/us/columbus-makhia-bryant-foster-care.html [https://perma.cc/zkl8-9gas]. 35 see presser, supra note 8. 36 see bogel-burroughs et al., supra note 34. 2022] building a guaranteed income 673 nineteenth century, states granted white women mothers’ pensions but not black mothers.37 in 1935, lawmakers passed the aid to dependent children (“adc”) program with the creation of the social security act.38 certain states used dehumanizing rules to exclude black mothers as “unsuitable.”39 these rules were challenged in litigation, and ultimately this civil rights advocacy paid off. 40 in 1962, adc’s name changed to aid to families with dependent children (“afdc”), and benefits for mothers were added universally so that the program included black mothers. thereafter, however, afdc benefit levels were steadily reduced. between 1970 and 1994, benefits dropped by forty-seven percent.41 originally designed to address child well-being and maltreatment, cash welfare programs gradually became focused on narratives of parent behavior.42 the “welfare queen” stereotype of black women as lazy and resistant to work drove public debate around “reforming” afdc.43 in 1996, lawmakers passed the personal responsibility and work opportunity act, which created the temporary assistance for needy families (“tanf”) program. tanf is a grant program to states that contains structural vectors of discrimination. these include conditioning payments on work, cutting benefits for non-compliance, and allowing states broad spending authority. as a result, many states spend an ever-diminishing share of their grants on children.44 professor dorothy roberts characterizes this use of the cws as punishment for a perceived lack of parental economic self-sufficiency.45 professor roberts writes that “the nuclear family model produces a welfare state that provides stingy benefits to poor mothers—benefits that are stigmatized and encumbered by behavioral regulations.”46 in washington, d.c. (“d.c.”), u.s. senator robert byrd (d – w. va.) used precisely these kinds of regulations to weaponize the cws. senator byrd commanded a “crackdown on welfare fraud” in 1961. this policy fueled massive overcrowding, primarily of black boys, at the d.c. junior village 37 john e. hansan, public welfare: aid for dependent children, vcu librs. soc. welfare hist. project, https://socialwelfare.library.vcu.edu/public-welfare/public-welfare -aid-for-dependent-children/ [https://perma.cc/s8dy-lzcg] (last visited dec. 21, 2021). 38 areen, supra note 17, at 910 n.131. 39 roberts, shattered bonds, supra note 20, at 176. 40 see king v. smith, 392 u.s. 309 (1968) (striking down a 1964 alabama welfare regulation which required that when a man lived in a home or was a frequent visitor “for purpose of cohabiting,” the recipient forfeit their afdc eligibility. due to this rule, alabama dropped 16,000 children from the rolls, ninety percent of whom were black); see also doe v. shapiro, 302 f. supp. 761 (d. conn. 1969) (invalidating a rule that allowed termination of welfare payments in cases where the recipient parent would not disclose the name of the child’s father). 41 teka lo, a brief history of national welfare rights organization, pub. intellectuals (oct. 21, 2020), https://www.publicintellectuals.org/national-welfare-rightsorganization/ [https://perma.cc/8pdp-pc4j]. 42 harden et al., supra note 3, at 99. 43 roberts, shattered bonds, supra note 20, at 194. 44 diana azevedo-mccaffrey & ali safawi, to promote equity, states should invest more tanf dollars in basic assistance, ctr. on budget & pol’y priorities 14 (jan. 12, 2021), https://www.cbpp.org/sites/default/files/atoms/files/1-5-17tanf.pdf [https://perma.cc/ vte8-w65h]. 45 roberts, the systemic punishment of black mothers, supra note 21, at 1485–86. 46 id. at 1487. 674 colum. j. race & l. [vol. 12:667 orphanage, which housed children removed from their mothers due to violations of the welfare rules of the time. 47 c. anti-black racist policies demobilize black american parents the enduring exclusion of black families from effective cash aid programs and the destabilization of black families represent what professor roberts terms a perennial “subject” status rather than full american citizenship.48 the lack of full citizenship can mean being denied due process with the advice of counsel when parental rights are at stake, from the initiation of an investigation, to the opening of a cws case, to the close of a case, to the termination of parental rights. it means being separated from one’s child due to lack of financial means and insecure housing, while the government of the richest nation in human history fails to provide assistance to forestall this. lack of full citizenship means “child abuse investigation reports being weaponized against parents by former partners, landlords, or disgruntled neighbors as a form of harassment,” as explained by parent advocate joyce macmillan, executive director of jmacforfamilies.49 finally, when purveying inequitable citizenship, the government provides cash assistance, tanf, that is conditioned on work, which disproportionately affects black women and families and directly and indirectly excludes black mothers from social insurance programs.50 this dynamic is further exacerbated by the interplay of the many institutions involved in marginalizing black parents. the mutuallyembedded roles that child welfare and carceral systems play in funneling black parents back and forth undermine the ability of black families to mobilize against these systems of oppression.51 at every stage of cws involvement, state actors have the discretion to erode parent autonomy. from reports of abuse, to investigations, to surveillance, to adjudications of removal, to the permanency phase, decisionmakers have tremendous discretion in determining what constitutes abuse and neglect. though this power is subject to constitutionally protected rights to due process, state discretion nevertheless dramatically narrows parent agency.52 a school nurse can decide whether to report a hunch to a hotline or address a parent directly.53 47 diane bernard, it was created as a refuge for needy kids. instead, they were raped and drugged, wash. post (may 18, 2019), https://www.washingtonpost.com/history/ 2019/05/18/it-was-created-refuge-needy-kids-instead-they-were-raped-drugged/ [https:// perma.cc/g85z-rq3f]. 48 dorothy roberts, welfare and the problem of black citizenship, 105 yale l. j. 1563, 1576–79 (1996) [hereinafter roberts, the problem of black citizenship] (reviewing two books examining the racial politics of child welfare and subsequent consequences for single black mothers). 49 why a child welfare ‘miranda rights’ law is essential | a q&a with advocate and organizer joyce mcmillan, the new sch. (june 2, 2021), http://www.centernyc.org/ urban-matters-2/2021/6/2/why-a-child-welfare-miranda-rights-law-is-essential-a-qampawith-advocate-and-organizer-joyce-mcmillan [https://perma.cc/5h9h-hxyq]. 50 roberts, the problem of black citizenship, supra note 48, at 1572–73. 51 roberts, the systemic punishment of black mothers, supra note 21, at 1483. 52 santosky v. kramer, 455 u.s. 745 (1982) (requiring due process for natural parents at state-initiated proceedings to terminate parental rights). 53 linda c. fentiman, blaming mothers: american law and the risk to children’s health 184–85 (2017) (describing the ways in which “discretionary decisionmaking permeates the legal apparatus directed at child abuse,” and the role of doctors, teachers, and 2022] building a guaranteed income 675 a social worker can judge whether more monitoring is appropriate or intervention is required. in addition to determining whether a child is abused or neglected, judges play an expansive role in dictating the minutiae of a child’s life, including what medical and social services should be ordered. each of these decisions can be informed by powerful biases that involve everything from views about motherhood to opinions about socioeconomic status and race.54 ultimately, black families’ overrepresentation in child welfare has been driven by anti-black racism expressed in unjust public aid policy. to alleviate overrepresentation in child welfare, policymakers must opt to fight for black families’ economic security. this, in turn, will require policymakers to acknowledge the citizenhood and humanity of black families. ii. confronting the risk factor for neglect a. american policymakers and child welfare system actors conflate poverty with neglect. the majority of reported child welfare cases across the nation involve neglect.55 the federal child abuse and prevention treatment act (“capta”) sets guidance for the minimum acts by parents and other caregivers that constitute abuse and neglect against a child eighteen years or younger or that is not yet emancipated. capta provides that child neglect and abuse are, at minimum, “[a]ny recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation . . . or an act or failure to act, which presents an imminent risk of serious harm.”56 each state and d.c. defines abuse and neglect under its own civil and criminal statutes. while d.c. law provides that a lack of financial means by itself is not neglect,57 the definition of a “neglected child”58 includes poverty factors as a basis for neglect in its ten criteria: a neglected child is one “without proper prenatal care or control, subsistence” for his or her “physical” health.59 in addition, the definition of “negligent treatment” or “maltreatment” describes criteria related to financial means: maltreatment includes the “failure to provide adequate food, clothing, shelter, or medical care . . . and the deprivation is not due to the lack of financial means of his or her parent, guardian or other custodian.”60 police in deciding between addressing potential issues with parents directly and reporting families for suspected abuse.) 54 id. 55 child maltreatment, supra note 7, at 22 (noting that “[t]he ffy 2019 data show, three-quarters (74.9%) of victims are neglected, 17.5 percent are physically abused, and 9.3 percent are sexually abused.”). 56 child abuse prevention and treatment and adoption reform, 42 u.s.c § 5101– 5119c. 57 d.c. code § 16-2301; see also in re a.h., 842 a.2d 674, 687 (d.c. 2004) (explaining that, poverty notwithstanding, “[i]f a child is deprived of parental care ‘necessary’ for his physical health, for example, if the child is malnourished, not properly clothed, or denied medical care,” the reasons behind the deprivation should not matter “in deciding whether the state should be allowed to intervene and protect the child”). 58 d.c. code § 16-2301(9)(a)(i-x). 59 d.c. code § 16-2301(9)(a)(ii). 60 d.c. code §16-2301(24). 676 colum. j. race & l. [vol. 12:667 legal definitions aside, studies show that neglect allegations, in particular, are connected to a family’s financial distress.61 abuse, like neglect, is also driven, at least, in part by factors that are compounded by poverty, as reported in studies that measure the amelioration of poverty by income support programs.62 nevertheless, family poverty reduction is not an observable policy goal of american child welfare agencies. instead, the cornerstone of federal policy is addressing parent behavior through measures such as time-limited prevention services for mental health, substance abuse, and in-home parent skills.63 through these programs, federal, state, and local lawmakers do not overtly confront the largest risk factor of caregiver child abuse and neglect: family poverty. poverty reveals itself in the cws in several ways. as author mikki kendall writes, “[p]overty can look like neglect, even if a parent is doing their very best.”64 this includes forcing “parents to make choices that put children at risk, such as leaving them home alone or with unsafe caregivers.”65 poverty can appear as a parent’s anger to a caseworker. raising children in poverty can look like neglect because “it often comes packaged with depression and anger, poor nutrition and housekeeping, lack of education and medical care, leaving children alone, exposing children to improper influences.”66 sendhil mullainathan explains that scarcity leads to “tunneling,” meaning that a lack of resources leads to sacrifice—some important needs will be sacrificed for more urgent needs.67 cws actors fail to acknowledge and address this poverty,68 instead focusing on parent behavior and morality. influenced by embedded policies, racial stereotypes, and racial hierarchy, state policymakers ignore and 61 child maltreatment, supra note 7, at 51. the report found that in the 29 states that reported data on poverty-related indicators, 26.9% of children experiencing maltreatment had a parent with a public assistance risk factor. id. the public assistance risk factor was defined as receiving tanf, general assistance, medicaid, social security, supplemental nutrition assistance (“snap”), and others. id. at 126. meanwhile, 29.4% of children experiencing maltreatment presented a caregiver risk factor related to substance abuse (excluding alcohol) based on data from 38 reporting states. id. at 51. finally, 28.8% of children experiencing maltreatment were reported to have a domestic violence caregiver factor. id. for maltreated children in d.c., none of the 1,857 children were reported to have public assistance risk factors, but 224 children (12%) displayed an inadequate housing risk factor. id. at 50. 62 see rachel a. spencer et al., association between temporary assistance for needy families (tanf) and child maltreatment among a cohort of fragile families, 120 child abuse & neglect 1, 7–8 (2021) (noting that “a $100 increase in tanf benefits was associated with a reduction of 1.8 reported physical abuse events” and that “[i]mposing a time limit on tanf receipt was associated with an increase of 2.3 reported physical abuse events.”). 63 see family first prevention services act of 2018, pub. l. no. 115—123 (authorizing new optional title iv-e funding); see also title iv-e prevention program, child. bureau, https://www.acf.hhs.gov/cb/title-iv-e-prevention-program [https://perma.cc/43k2p9yn]. 64 mikki kendall, hood feminism: notes from the women white feminists forgot 246 (2020). 65 id. 66 roberts, shattered bonds, supra note 20, at 27. 67 sendhil mullainathan & eldar shafir, scarcity, why having too little means so much 27–29 (2013). 68 see generally roberts, shattered bonds, supra note 20, at 26–29. 2022] building a guaranteed income 677 conflate poverty with neglect.69 the resulting policies are particularly harmful for black solo mothers, the predominant caregivers of black children in the cws.70 black women are subjected to the “sapphire” trope of the black woman as “the embodiment of sin, evil, and dark.”71 welfare recipient and movement leader johnnie tillmon summarized the varied tropes: “[afdc] mothers are lazy, misuse their welfare checks, spend it all on booze and are stupid and incompetent.”72 at the same time, the focus on black parents’ merit rather than child poverty engenders a new and more punitive form of public aid. the shift from the original framework of maltreatment deriving from financial needs to parental turpitude may help to explain the contemporary demeaning experience black parents experience across the cws, from caseworkers to judicial officers.73 for example, vicki lens observes of the child welfare court: “the courtroom is also divided by class, with the legal professionals on top, followed by caseworkers, and then parents, who are predominantly poor.”74 kaaryn gustafson describes the excessive prosecution of black mothers for welfare transgressions as an act of oppression by the state and an overtly public “ritual” purposed for degradation.75 b. economic assistance to families with limited resources plays a positive role in ameliorating maltreatment factors. scholars have found a robust connection between economic stability and a reduction in child abuse and neglect. 76 these compelling studies illustrate the economic risk factors for maltreatment and the beneficial role of strengthening household financial security in making prevention possible.77 for example, “state restrictions on access to [tanf] are significantly associated with increases in the number of child protection reports, victims of child maltreatment, and foster care placements, even after controlling for changes in incarceration and the nation’s opioid epidemic.”78 research has identified strong risk factors for child welfare involvement and economic hardship, including utility shut-offs, unstable 69 diane redleaf, biden’s child welfare focus should be removing poverty from neglect, imprint (dec. 21, 2020, 4:00 am), https://imprintnews.org/child-welfare-2/bidenchild-welfare-focus-removing-poverty-neglect/50041 [https://perma.cc/fld7-m4ze]. 70 see roberts, shattered bonds, supra note 20, at 89–92. 71 kersti myles, jezebels and jungle bunnies: how the stereotypes of black women shape legislation, the legal profession, and feminist jurisprudence, 10 mod. am. 1, 3 (2017). 72 johnnie tillmon, welfare is a woman’s issue, 1 ms. mag. 112 (1972), reprinted in from the vault: “welfare is a women’s issue”, ms. (mar. 25. 2021), https://msmagazine.com/ 2021/03/25/welfare-is-a-womens-issue-ms-magazine-spring-1972/ [https://perma.cc/3zbvnrmq]. 73 see vicki lens, judging the “other”: the intersection of race, gender and class in family court, 57 fam. ct. rev. 72 (2019) (analyzing how racial, gender, and class differences manifest in family court proceedings). 74 id. at 72. 75 kaaryn gustafson, degradation ceremonies and the criminalization of lowincome women, 3 u.c. irvine l. rev. 297, 301–02 (2013). 76 cara baldari & rricha mathu, increasing the minimum wage is good for child well-being, first focus on child. (aug. 31, 2017), https://firstfocus.org/blog/increasingthe-minimum-wage-is-good-for-child-well-being [https://perma.cc/84n5-ymhp]. 77 see e.g., harden et al., supra note 3. 78 id. at 101. 678 colum. j. race & l. [vol. 12:667 housing, food insecurity, and self-perception of economic stress. ultimately, economic instability increases the risk to poor families of child welfare intervention and family separation.79 conversely, increases in income via state-level earned income tax credit programs reduce abusive head trauma hospitalizations80 and family involvement with child protective services.81 similar findings have been made about the connection between child safety and welfare and participation in nutrition assistance programs, the expansion of medicaid, and supportive housing.82 further, regarding child support, an empirical study of wisconsin families found that mothers eligible to receive all child support paid on behalf of their children were less likely to have a child subject to a screened-in report of maltreatment than were mothers who were eligible for only partial child support payments.83 economic assistance propels a demonstrable positive effect in the lives of mothers in the demographic group most at risk of involvement in the cws, the lowest income black mothers. in the longest running guaranteed income experiment in america, the magnolia mother’s trust proved that financial assistance ameliorates negative family outcomes for mothers living in deep poverty.84 among the recipients of no-stringsattached payments through magnolia mother’s trust in the year 2020, protective factors—namely, the ability to pay bills on time— increased from less than one third to eighty-three percent.85 additionally, fewer than twothirds of participating mothers had sufficient cash for food before the payments; eighty-one percent did after.86 a similar rise in the share who were able to regularly buy their children new apparel and shoes occurred.87 increased ownership of cars and ability to buy gas aided their trips to work 79 maria cancian et al., the effect of family income on risk of child maltreatment 3 (inst. for rsch. on poverty, discussion paper no. 1385-10, 2010), https://www.irp.wisc.edu/ publications/dps/pdfs/dp138510.pdf [https://perma.cc/uw4k-kyra]. 80 joanne klevens et al., effect of the earned income tax credit on hospital admissions for pediatric abusive head trauma, 132 pub. health reps. 505, 506–508 (2017) (discussing results from a study on hospital admissions rates). 81 whitney l. rostad et al., reducing the number of children entering foster care: effects of state earned income tax credits, 25 child maltreatment 393, 395–96 (2020). 82 harden et al., supra note 3, at 101. 83 cancian et al., supra note 79, at 7–11 (presenting results from the study showing that mothers with full income support were about ten percent less likely than mothers with only partial income support to have a child subject to a screened-in report for maltreatment). 84 magnolia mother’s trust, springboard to opportunities, https://spring boardto.org/magnolia-mothers-trust/ [https://perma.cc/s8r6-zk6z] (describing the pilot initiative, which began in 2018, to provide low-income black mothers living in affordable housing in jackson, mississippi with monthly payments); bryce covert, they gave black mothers in mississippi $1,000 a month. it changed their lives., new republic (oct. 12, 2021), https://newrepublic.com/article/163911/mississippi-basic-income-democrats-childtax-credit [https://perma.cc/jek8-mgbf] (reporting on the impact of the mississippi initiative, the “longest-running basic income experiment since the nixon era”). 85 the magnolia mother’s tr., 2020 evaluation report, springboard to opportunities 1 (2020), https://springboardto.org/wp-content/uploads/2021/05/mmt-2.0evaluation-two-pager.pdf [https://perma.cc/g5np-hd6r]. 86 the magnolia mother’s tr., supra note 85, at 1; covert, supra note 84. 87 the magnolia mother’s tr., supra note 85, at 2 (measuring increases in the ability to care for children); covert, supra note 84. 2022] building a guaranteed income 679 and other critical activities.88 the protective factor of having money saved for emergencies was present in nearly ninety percent of the recipients by the conclusion of the program year.89 the “black women best” framework describes the manner in which uplifting black women in the american economy is crucial to the economic solvency of economically excluded black families and the american economy.90 c. policymakers fail to fund anti-poverty initiatives. policymakers do not take advantage of opportunities to fund antipoverty programs, especially in areas with significant proportions of black children. jurisdictions with the largest numbers of black children have allotted fewer of their tanf welfare dollars on payments to children and families.91 for example, for the predominantly black children of d.c., the tanf payment level is now around thirty-six percent of the federal poverty level.92 while benefit levels have increased since 2015 in several states, d.c. has among the lowest figures in the country and their increase, as in all but six states, failed to keep pace with inflation.93 where black children comprise the majority of the residents in a state, the tanf payment tends to be lower.94 and in every state and d.c., the tanf payment fails to cover affordable housing, defined as taking up no more than thirty percent of a household’s income.95 states choose to prioritize funds for other projects, such as programs that benefit middle class 88 the magnolia mother’s tr., supra note 85, at 2 (measuring increases in the ability to meet transportation needs, with long-term effects on employment); covert, supra note 84. 89 the magnolia mother’s tr., supra note 85, at 1; covert, supra note 84. 90 see kendra bozarth et al., black women best: the framework we need for an equitable economy, roosevelt inst. 1 (2020), https://rooseveltinstitute.org/wp-content/ uploads/2020/09/ri_black-women-best_issuebrief-202009.pdf [https://perma.cc/8swl5umg](explaining that “[o]ur economy was built in large part upon black women’s diminished power—through unpaid, exploited, and forced labor.”). 91 ife floyd et al., tanf policies reflect racist legacy of cash assistance: reimagined program should center black mothers, ctr. on budget & pol’y priorities 5, 29 (aug. 4, 2021), https://www.cbpp.org/research/family-income-support/tanf-policies-reflectracist-legacy-of-cash-assistance [https://perma.cc/6nv9-br7c]; see also ali safawi & cindy reyes, states must continue recent momentum to further improve tanf benefit levels, ctr. on budget & pol’y priorities, https://www.cbpp.org/research/family-income-support/ states-must-continue-recent-momentum-to-further-improve-tanf-benefittanf-policiesreflect-racist-legacy-of-cash-assistance [https://perma.cc/wju2-xkwz] (last updated dec. 2, 2021). 92 safawi & reyes, supra note 91, at app. tbl.2; see also 2021 poverty guidelines for the 48 contiguous states and the district of columbia, assistant sec’y for plan. & eval. (2021), https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines/prior-hhspoverty-guidelines-federal-register-references/2021-poverty-guidelines [https://perma.cc/ 9c3a-52ms] (setting the federal poverty level for a household of one at $12,880; of two at $17,420; and of three at $21,960). “federal poverty level” is used interchangeably with “federal poverty line.” 93 safawi & reyes, supra note 91. 94 id. 95 in every state, modest rental housing is unaffordable for tanf families. id. 680 colum. j. race & l. [vol. 12:667 families, rather than getting families into jobs,96 while also imposing more work restrictions that fall disproportionately on black tanf recipients.97 there is also a major disparity in the amount of financial assistance disbursed through tanf payments and foster maintenance payments.98 this gap increases depending on the number of children in the household.99 states incentivize funding in federal laws and policies that encourage practices to place children in government-subsidized foster care rather than in their own homes.100 as a result, the proportion of spending on foster care and adoption has been up to ten times greater than spending on family reunification.101 the contrast between tanf’s limited implementation and the funding decisions around foster care maintenance payments reflects a stark policy choice.102 by denying subsistence benefits to families while investing in foster care, policymakers have repeatedly sided with policies that prioritize family separation over child welfare. these grim facts reflect the choice of policymakers to ignore poverty, seeking to solve it with services, surveillance, and child removal. in doing so, policymakers shun initiatives that would benefit entire constituencies of families impacted by the cws, improve child safety, and preserve family unity. d. decision-makers could opt to empower parents with financial assistance. agencies and judicial officers possess wide latitude in handling allegations of child abuse and neglect. these actors could choose to empower parents by providing them with financial assistance, adequate housing, and other benefits to make choices about their lives. in d.c., twelve percent of cases involve housing insecurity, and across the country the percentage is higher.103 a judge has discretion to order the agency to 96 jenni bergal, states raid funds meant for needy families to pay for other programs, pew (july 24, 2020), https://www.pewtrusts.org/en/research-and-analysis/blogs/ stateline/2020/07/24/states-raid-fund-meant-for-needy-families-to-pay-for-other-programs [https://perma.cc/2kya-gqq2]. 97 policy basics: temporary assistance for needy families, ctr. on budget & pol’y priorities (mar. 31, 2021), https://www.cbpp.org/research/family-income-support/temporar y-assistance-for-needy-families [https://perma.cc/8c5s-46wv]. 98 julie murray et al., estimating financial support for kinship caregivers, urb. inst. 4 fig.3 (dec. 2004), https://www.urban.org/sites/default/files/publication/57846/311126estimating-financial-support-for-kinship-caregivers.pdf [https://perma.cc/h882-tddf]. 99 id. 100 cooper, supra note 10, at 264. 101 elizabeth brico, the government spends 10 times more on foster care and adoption than reuniting families, talk poverty (aug. 23, 2019), https://talkpoverty.org/ 2019/08/23/government-more-foster-adoption-reuniting/ [https://perma.cc/k3hz-bhll]. 102 see jessica pac et al., poverty among foster children: estimates using the supplemental poverty measure, 91 soc. serv. rev. 8, 17 (mar. 2017) (noting that “[u]nder title iv-e of the social security act, states can request federal reimbursement for the costs of foster care payments for children who meet a set of eligibility criteria—namely, that they come from an impoverished home.”). 103 of the 402,000 children who live apart from their families in america’s foster care system, nearly 121,000 are separated from their families because their parents lack access to safe, decent, and affordable housing. ruth white, vouchers: family unification program, nat’l low income hous. coal. 2015 advocates’ guide 4-44, 4-44 (2015), http://nlihc.org/sites/default/files/sec4.13_vouchers-family-unification_2015.pdf [https://perma.cc/942k-jydw]. 2022] building a guaranteed income 681 provide available resources to families as a mitigation measure for parents who are seeking reunification.104 when a family faces eviction or otherwise requires critical emergency assistance, a cws agency could exercise discretion to use available resources such as the family unification program housing vouchers available to families with housing insecurity who are at risk of cws involvement rather than petition for the removal of their child.105 failing this, the presiding judge could order the agency to explore poverty mitigation measures as a preventive approach to removal, as did judge ernestine s. gray in her new orleans courtroom, stating her outlook, that “[w]e shouldn’t be taking kids away from their parents [just] because they don’t have food or a refrigerator.”106 iii. the solution: empowering families to demand that the child welfare system address poverty the mother’s outreach network (“mon”)’s central campaign toward ending the cws is the passage, funding, and implementation of a permanent local guaranteed income program in d.c. mon’s broader mission is to support black d.c. mothers who are fighting for economic security while navigating the oppressive cws and other carceral systems. mon advocates for black mothers in several ways: (1) mon’s advocacy programs seek to transform income and cws policy at the local and federal level in support of the needs of black mothers, their families, and communities; (2) mon’s community engagement initiatives work to advance the power of mothers and their communities and include knowyour-rights workshops in law and civic activism, as well as mutual aid, and community-driven research; and (3) mon’s legal program builds community power by providing legal counsel and representation to aid mothers in challenging placement on the city’s child protection register (“cpr”), in obtaining refundable tax credits and other cash benefits, and in addressing other legal needs related to their individual and collective economic security.107 as a lawyer-led organization, mon works alongside mothers to deploy community-lawyering strategies and collaborate with a wide range 104 see richard a. webster, one judge’s tough approach to foster care: it’s only for the really extreme cases, wash. post (nov. 25, 2019), https://www.washingtonpost.com/ national/one-judges-tough-approach-to-foster-care-its-only-for-the-really-extreme-cases/ 2019/11/24/bd2dd322-0a4c-11ea-97ac-a7ccc8dd1ebc_story.html [https://perma.cc/ss4d3kun]. 105 see m. robin dion, et al., u.s. dep’t of hous. & urb. dev., the family unification program: a housing resource for youth aging out of foster care 1, https://www.huduser.gov/portal/publications/supportive_housing_for_youth.pdf [https:// perma.cc/v2xn-shnb]; see also white, supra note 103, at 4-44–4-45 (explaining that “hud’s family unification program (fup) is a federal housing program aimed at keeping homeless families together and safe, and preventing homelessness among youth aging out of foster care. . . . eligible families include those that are in imminent danger of losing their children to foster care primarily due to housing problems, and those that are unable to regain custody of their children primarily due to housing problems”). 106 webster, supra note 104. 107 see generally press, mother’s outreach network, https://mothersoutreach network.org/press/ [https://perma.cc/7fne-r4an] (last visited june 14, 2022). 682 colum. j. race & l. [vol. 12:667 of organizations on facilitating parent collective action. mon seeks to catalyze “their mothering skills in their political work.”108 a. goals mon is pursuing the following goals to disrupt the approach that the cws takes to child maltreatment allegations: 1. supporting power-building and black parent political engagement. mon focuses principally on supporting black mothers facing involvement in the cws, from d.c.’s “front yard” through to the petition for removal and the permanency phases of adjudication.109 2. shrinking the family regulation system through an antipoverty, anti-racist campaign that will transform the cws funding structure and disrupt parent involvement in the cws. 3. changing the narrative from one that judges parent behavior to one that uplifts the dignity and agency of black mothers to raise economically secure families. b. initiatives mon uses the four domains of movement lawyering elaborated by alexi and jim freeman—political, grassroots support, communications/media, and legal resources—to advance its goals of empowerment for black mothers in d.c.110 mon achieves this empowerment through the following activities: 1. politics guaranteed income policy campaign for direct cash payments to mothers with children who are cfsa-involved. mon’s core policy initiative is its guaranteed income campaign in the local political ecosystem of d.c. d.c. is a city beset by deep racial wealth and income gaps and other gendered and racialized disparities. mon supports a policy campaign for economic justice through targeted direct cash payments to mothers with children who are involved with the d.c. children and family services agency (“cfsa”). this advocacy includes seeking public funding focused upon the cfsa budget. the wave of guaranteed income initiatives crossing the country developed from an old policy concept that gained new national relevance during the covid-19 pandemic. guaranteed income policy would allocate to every member of a community or country, regardless of age or other circumstances, subsisting below the income floor, an unconditional payment that raises them above this basic income threshold. it has taken 108 roberts, shattered bonds, supra note 20, at 238. 109 “front yard” families have no present child welfare involvement but could face involvement, such as homeless families. d.c. gov’t child & fam. servs. agency, fy 2020 needs assessment 8 (oct. 1, 2020), https://cfsa.dc.gov/sites/default/files/dc/sites/cfsa/pub lication/attachments/fy20_needs_assessment_final.pdf [https://perma.cc/7sdb-lzuq]. 110 alexi nunn freeman & jim freeman, it’s about power, not policy: movement lawyering for large-scale social change, 23 clinical l. rev. 147, 156 (2016). 2022] building a guaranteed income 683 off in the united states and abroad through population-targeted experiments testing the impact of guaranteed income for the amelioration of poverty. this movement for income justice has been framed as a black mother’s economic and policy issue.111 in the 1960s, among the fiercest leaders of this movement was black mother and economic justice advocate johnnie tillmon, who fought for guaranteed adequate income (“gai”).112 she powered this fight through the national welfare rights organization (“nwro”), a group dedicated to advancing american economic and racial justice.113 in our contemporary context, scholars have opined, as ms. tillmon did decades ago, that centering u.s. economic policy around black mothers—the strongest labor participants—will elevate the economy. conversely, “[i]f policymakers continue on their current course, we will remain stagnant as an economy.”114 the centerpiece of mon’s policy efforts is supporting and developing a community-informed policy and legislative strategy using a racial equity lens. grounded with black parents and other d.c. residents, displaced d.c. workers, and organizational stakeholders, the effort seeks to advance mon’s goal of building economic justice for d.c.’s most excluded and marginalized black families: those facing family separation. mon’s policy campaign, if successful, has the potential to be transformative. in the fall of 2021, the efforts of mon and its allied organizations saw the passage of a $1.5 million fund to support guaranteed income pilot programs operated by nonprofit organizations.115 from a historical perspective, reverend dr. martin luther king, jr. theorized that seeking a guaranteed income is the “simplest” solution to poverty .116 moreover, as johnnie tillmon wrote, guaranteed income would dismantle conditions keeping all “women on their knees,”117 giving them more than a pittance and a choice over how to spend money on their families. 111 see generally ebony childs & madeline neighly, in celebration of black moms: cash as care, econ. sec. project (apr. 29, 2021), https://www.economicsecurity project.org/wp-content/uploads/2021/04/210429-cash-as-care-report.pdf [https://perma.cc /7k6e-eh9x] (centering income justice on “cash as care” for black mothers). 112 see tillmon, supra note 72 (presenting gai as a “welfare plan . . . which would eliminate sexism from welfare”). 113 wilson sherwin & frances fox piven, the radical feminist legacy of the national welfare rights organization, 47 women’s stud. q. 135, 137 (2019). 114 janelle jones, black women best, data for progress (july 15, 2020), https://www.dataforprogress.org/blog/2020/7/15/black-women-best [https://perma.cc/wse4mkp7] (further making this point by noting that “[w]hen the experiences and worth of black women, and other marginalized communities, are devalued, disempowered, or excluded, this negatively affects our collective ability to produce shared prosperity”). 115 will schick, with pilot projects in place, backers look to mobilize support for a guaranteed income in dc, dc line (oct. 15, 2021), https://thedcline.org/2021/10/15/withpilot-projects-in-place-backers-look-to-mobilize-support-for-a-guaranteed-income-in-dc/ [https://perma.cc/w48m-grx3] (citing the d.c. committee on business and economic development’s fy 2022 budget report). 116 rev. dr. martin luther king, jr., where do we go from here: chaos or community 171 (1967). 117 tillmon, supra note 72. 684 colum. j. race & l. [vol. 12:667 2. grassroots activism coalition building. building power and leadership is critical to community lawyering.118 mon is pursuing these paramount goals through coalition strategies that are rooted in the analytic framework of intersectionality.119 this framework prioritizes supporting the grassroots mobilization of mothers within mon’s prospective client community alongside partner organizational providers. first, mon engages in information sharing and training. second, mon convenes community meetings and working groups, supporting opportunities for black mothers to speak at forums. third, mon cultivates partnerships with a broad array of individuals, organizations, and stakeholders at the local, regional, and national levels across an array of issue areas, including law and others; these partnerships consist of varying sizes and levels of involvement with parents. black women-led effort. cultivating coalition activism around income justice, led specifically by black women, builds power rooted in the history of the american civil rights struggle.120 as previously described, black women activists were early champions of guaranteed income. nwro leaders supported congressional bill h.r. 7257, the adequate income plan, as an alternative to nixon’s welfare reform plan.121 through the proposed plan, “[i]n the place of ‘slave jobs’ and ‘forced work,’ recipients sought a ‘guaranteed adequate income’ for all americans, similar in many substantive ways to today’s calls for universal basic income (“ubi”).”122 the adequate income plan sought to advance the value of civic engagement and the worth of unpaid mothering work.123 rather than asserting black mothers’ rights to “maternalism,” the way that white feminists did for mothers, nwro leaders asserted the value of their nonwage care work, welfare, civic engagement, and activism.124 in this way, “the welfare rights movement provided recipients with an education in political mobilization.”125 intersectional power-building. it is impossible to leverage the political force of marginalized groups without intersectional powerbuilding.126 mon adopts elements of paradigms described by charles elsesser and dorothy roberts, respectively. first, mon engages with 118 see elsesser, supra note 6, at 377 (drawing on community lawyers’ definitional insights about the importance of “leadership by organized constituent groups within the communities served” and the commitment to “consciously build[ing] organizational power and community leadership”); freeman & freeman, supra note 110, at 150 (describing lawyers’ shift to a focus on “building . . . community power”). 119 see infra notes 126–129 and accompanying text. 120 cf. cooper, supra note 10, at 270–72 (explicating racial justice lawyering as a “strategy grounded in american history and its civil rights legacy”). 121 see adequate income plan, h.r. 7257, 92d cong. (1971). 122 sherwin & piven, supra note 113, at 137. ubi refers to a program through which every person in a community would receive a uniform payment from the government. 123 id. at 138–39. 124 id. at 138–39. 125 id. at 139. 126 see dorothy roberts & sujatha jesudason, movement intersectionality: the case of race, gender, disability, and genetic technologies, 10 du bois rev. 313, 313–16 (2013) (introducing “intersectionality for cross movement mobilization” as a framework, with an emphasis on its application at the “movement-building level”). 2022] building a guaranteed income 685 organizations that elsesser terms the “partners with organizing capacity” who are working in the same space.127 this includes organizations in the anti-poverty and anti-racism space across different domains of activism and focus. second, mon derives benefits of coalition movement building, tapping what roberts calls the “radical potential for intersectionality.”128 organizations that possess overlapping goals to end poverty and racism have joined mon’s efforts even as they continue to “grapple with differences, discovering and creating commonalities and revealing interactive mechanisms of oppression” while providing “a model for alternative relationships.”129 in this vein, the coalition joins supporters from across the income advocacy spectrum, including libertarians and far left progressive activists, making seemingly strange bedfellows between groups that align despite different ideologies. family economic security cash pilot. additionally, mon seeks to demonstrate efficacy and parent agency benefits, ultimately building parent power through an unconditional income experiment. mon has begun fundraising to establish a black mother’s family preservation cash transfer “pilot” program for mothers at different phases of cfsa involvement. this holds power-building potential for women with a history of political marginalization. as discussed above, magnolia mother’s trust has demonstrated the benefits of financial independence for impoverished black mothers in mississippi,130 and mon seeks to expand upon this kind of initiative with mothers who are confronted with neglect allegations stemming from poverty. mon is collecting data through a survey it is launching within several communities. the pilot is partially funded and expects to provide fifty or more mothers in cohorts of five to ten with $500 per month for three years. mutual aid networks. mon continues to develop mutual aid networks to better facilitate community support of the resource needs of impacted parents and to foster leadership and political strength for marginalized groups.131 3. communications mon pursues four communications strategies to build parent power. first, mon strives to foster and convey knowledge essential to leadership skills. second, mon seeks to change the narrative from parent turpitude to a public narrative of parent power, agency, and economic independence. third, mon seeks to center communications around parent stories and information for parents. fourth, mon seeks to promote its 127 elsesser, supra note 6, at 386. 128 roberts & jesudason, supra note 126, at 316. 129 id. 130 see supra notes 84–89 and accompanying text; see also childs & neighly, supra note 111, at 3 (summarizing the program’s recent outcomes of “decrease in food insecurity and . . . increase in the ability to cover basic needs”). 131 cf. daniel fernandez, dean spade on the promise of mutual aid, nation (dec. 16, 2020), https://www.thenation.com/article/economy/interview-dean-spade/ [https://perma. cc/y5qh-6uc8] (describing mutual aid, the work of “directly support[ing] each other’s survival needs” while “get[ting] to the root causes of these problems”). 686 colum. j. race & l. [vol. 12:667 advocacy program by sharing robust informational material and research on the topic of income justice through a social media and internet presence. 4. legal program mon is working to complement its transformational advocacy against “large systems of oppression,”132 with a civil legal services program for cfsa-involved parents. individual representation. mon’s legal programming includes advocacy for direct cash aid for parents and encouraging child welfare parents’ attorneys to participate in this advocacy, for instance by requesting child tax credits (“ctc”) for biological parents of children in foster care under the ctc 2021 program.133 mon’s parents’ tax workshop and advice clinic, which have been featured in the news media,134 provide support for no-income and low-income parents, who are at risk of involvement with child and family services. legal help is currently being delivered: (1) through representation at administrative hearings; (2) through screening, advice, and referral clinics for collateral civil legal services, including for the ctc 2021 program and other refundable tax credit programs that are designed to augment the income of no-income, low-income, and low wage workers; and (3) eventually, through advice and counsel for parents at the cfsa investigation phase. systemic legal advocacy. mon has begun to undertake its policy advocacy.135 the objectives of mon’s planned litigation and legislative advocacy include facilitation of parents’ economic stability to meet their children’s needs, through the following: (1) requiring the provision of a minimum income of 100% of the poverty level for families that cfsa identifies for abuse and neglect allegations, in order to meet the families’ cost of living; (2) requiring the provision of public assistance and housing to support family reunification; (3) repurposing child welfare funding sources for direct cash transfers to parents, (4) using tanf to pay for direct cash transfers up to 100% of the poverty line,136 and (5) ending the use of tanf payments for foster care services. parent leadership. to instill parent leadership, mon has initiated a parent advisory board on parent economic security to provide guidance to child welfare agencies. parent representation. to increase representation in d.c., mon’s advocacy agenda for the future includes: (1) supplementing 132 freeman & freeman, supra note 110, at 155 (considering the role of lawyers against such systems). 133 see pulliam & reeves, supra note 1 (explaining the child tax credit program). 134 chelsea cirruzzo, d.c. orgs help families utilize child tax credit, axios (nov. 4, 2021), https://www.axios.com/local/washington-dc/2021/11/04/dc-orgs-help-families-utilize -child-tax-credit [https://perma.cc/vck2-9nfv]. 135 sam p.k. collins, advocates press for information about neglect cases, wash. informer (oct. 13, 2021), https://www.washingtoninformer.com/advocates-press-forinformation-about-neglect-cases/ [https://perma.cc/c32l-nylr]. 136 azevedo-mccaffrey & safawi, supra note 44 (prescribing ways to redirect tanf funds). 2022] building a guaranteed income 687 payment levels for panel attorneys appointed by d.c. superior court;137 and (2) creating an additional attorney panel of civil legal services attorneys, or augmenting the parent defense counsel panel devoted to representing parents at every stage of involvement with child and family services agency. iv. conclusion two decades ago in her book, shattered bonds: the color of child welfare, professor dorothy roberts wrote, “[i]t is income insecurity, not welfare receipt, that is the best predictor of foster care placement.”138 in another work, roberts also extolls the mandate for “a strong, inclusive, and dignified welfare state,” decrying the injustice of denying economically marginalized black americans this perquisite of citizenship.139 mother’s outreach network supports, through parent empowerment lawyering—an approach that advances a guaranteed income program for impoverished american families—starting with those at risk of child welfare intervention. through racial economic justice for black mothers and their children, we can achieve liberation for all families threatened with state intrusion and separation of their families. 137 d.c. code §16-2304(a)-(b)(1) (setting forth children’s and parents’ right to counsel); see also jonah e. bromwich, family court lawyers flee low-paying jobs. parents and children suffer, n.y. times (apr. 29, 2022), https://www.nytimes.com/2022/04/29/ nyregion/family-court-attorneys-fees.html [https://perma.cc/6gdw-f3cs] (problematizing the low pay of panel attorneys who represent children and indigent adults in criminal and family cases). 138 roberts, shattered bonds, supra note 21, at 185. 139 roberts, the problem of black citizenship, supra note 48, at 1602. i. disparities in the child welfare system a. the child welfare system is racialized. b. current child welfare policies reflect historically racialized approaches to child welfare and cash assistance programs. c. anti-black racist policies demobilize black american parents ii. confronting the risk factor for neglect a. american policymakers and child welfare system actors conflate poverty with neglect. b. economic assistance to families with limited resources plays a positive role in ameliorating maltreatment factors. c. policymakers fail to fund anti-poverty initiatives. d. decision-makers could opt to empower parents with financial assistance. iii. the solution: empowering families to demand that the child welfare system address poverty a. goals b. initiatives 1. politics 2. grassroots activism 3. communications 4. legal program iv. conclusion 2 wolff dean final 2014 columbia journal of race and law 129 foreclosures and financial aid: mind over mortgages in closing the plus loan gap kamille wolff dean* renewed discussion has recently emerged to help strengthen the middle class by increasing access to college. president barack obama is at the forefront of the discussion to make college more affordable by prompting universities to become more efficient. using education as a gateway to success, the obama administration proposed a number of initiatives to deter college spending and promote financial aid accountability. this article analyzes the nuances in financial aid that stem from the higher education act of 1965 (“hea”), which is set for reauthorization in 2014. the article addresses an array of inherent problems in the current student loan industry, particularly as the student aid system relates to the federal parent loan for undergraduate students (“plus”) loan program. specifically, the discussion defines the scope of consumer financial reform pertaining to student loans, and proposes adequate revision to the student loan provisions of the hea to soundly provide college funding to financially distressed students and their families. the discussion also proposes a number of recommendations and best practices for relieving the heavy burden of student loan debt carried by americans that now amounts to over 1 trillion dollars. the movement towards eroding wealth inequality through the attainment of higher education emerges as a viable opportunity for promoting innovative reform in the student loan industry. such action is plausible considering the reauthorization of the hea that is presently under consideration. this article analyzes the new programs related to the agenda of lowering student debt while expanding affordable credit to attend college. emerging student loan products are evaluated and refined to offer suggestions for the equitable implementation and enforcement of revised student loan terms. i. introduction ………………………………………………………….. 130 ii. foundational perspectives on higher education and financial aid …………………………………………………………… 138 a. the need for student loan reform through the higher education act ……………………………………………………………………. 140 b. an overview of the student loan industry ………………………… 144 c. the federal plus loan program ………………………………….. 146 * thanks to william anthony dean, joseph christian dean, and the dedicated staff of the columbia journal of race and law. foreclosures and financial aid vol. 4:2 130 d. the housing crisis and ensuing credit crunch for plus loans …………………………………………………………………. 148 iii. contemporary issues in the federal plus loan program …………………………………………………………………... 151 a. the creditworthiness requirement for plus loans ……………... 151 iv. financial aid best practices …………………………………….. 158 a. plus loan reform …………………………………………………. 160 b. financial aid eligibility …………………………………………….. 165 c. bankruptcy protection ………………………………………………. 167 v. conclusion ……………………………………………………………… 172 i. introduction it’s a simple fact: the more education you have, the more likely you are to have a job and work your way into the middle class. but today, skyrocketing costs price way too many young people out of a higher education, or saddle them with unsustainable debt.1 the great recession of 2008 resulted in a new economy that proportionately depleted more personal and commercial wealth than the great depression.2 consequently, public and private entities adopted stringent spending strategies to help balance budgets and ultimately save the u.s. economy.3 widespread governmental oversight and supervision of financial products and services ensued with the legislation of the dodd-frank wall street reform and consumer protection act (“dodd-frank act” or “dodd-frank”).4 the dodd-frank act included legislation concerning the regulation of student loans.5 the house of cards built primarily by subprime mortgage lenders collapsed, thereby causing a severe 1 president barack h. obama, address before a joint session of the congress of the state of the union (feb. 12, 2013). 2 see kamille wolff dean, teaching business law in the new economy: strategies for success, 8 j. bus. & tech l. 223, 225-27 (2013); see also mark labonte, cong. research serv., r40198, the 2007–2009 recession: similarities to and differences from the past (2010) (“one unique characteristic of the recent recession was the severe disruption to financial markets.”); see generally ivaylo petev, et al., consumption and the great recession: an analysis of trends, perceptions, and distributional effects (2011). 3 id. 4 see dodd-frank wall street reform and consumer protection act, h.r. 4173, 111th cong. (2010); see also kamille wolff dean, student loans, politics, and the occupy movement: financial aid rebellion and reform, 46 j. marshall l. rev. 105 (2012); see also peter coy, “the great recession: an ‘affair’ to remember,” bloomberg businessweek, oct. 11, 2012; see generally david b. grusky, et al., the great recession 3-5 (2011) (“the ‘great recession’ spanned . . . to 2009, although the nation is still experiencing the aftershocks of this deep, multi-layered financial crisis”); sheila slaughter & gary rhoades, academic capitalism and the new economy: markets, state, and higher education 1-2 (2004). 5 id. 2014 columbia journal of race and law 131 economic downturn experienced worldwide.6 the toppling of the financial market also set forth a credit crunch despite the government-funded bank bailout through the troubled asset relief program (tarp) subsidized by taxpayers.7 the domino effect of the credit crunch reached the financial aid industry in unprecedented ways, including restrictions in the eligibility and issuance of student loans under the graduate and parent loan for undergraduate students (“plus”) program.8 higher education is now closely tied to the financial market.9 credit scores play a crucial role in student loan underwriting decisions to the overall detriment of the middle class.10 low and moderateincome students also face a tightening of financial aid standards that may ultimately preclude them from attending college.11 the rising costs of college, along with the decrease in federal, state, and institutional student aid, may push many deserving students to the periphery of higher education.12 without the promise of supplemental financial aid from the federal plus loan program, many lower and even upper middle class families may be priced out of attaining the american dream through higher education.13 6 see generally meg handley, “bernanke: tight credit impeding housing, economic recovery,” u.s. news and world report, feb. 10, 2012. 7 see u.s. dept. of treasury, tarp programs, http://www.treasury.gov/initiatives/financialstability/tarp-programs/pages/default.aspx# (last visited june 12, 2014) (“treasury established several programs under tarp to help stabilize the u.s. financial system, restart economic growth, and prevent avoidable foreclosures. although congress initially authorized $700 billion for tarp in october 2008, that authority was reduced to $475 billion by the dodd-frank wall street reform and consumer protection act (dodd-frank act) . . . . the authority to make new financial commitments under tarp ended on october 3, 2010. as of march 31, 2014, cumulative collections under tarp, together with treasury's additional proceeds from the sale of non-tarp shares of aig, exceed total disbursements by more than $13 billion. treasury is now winding down its remaining tarp investments and is also continuing to implement tarp initiatives to help struggling homeowners avoid foreclosure.”); see generally ben s. bernanke, cara s. lown & benjamin m. friedman, “the credit crunch,” 2 brookings papers on economic activity 205, 207 (1991) (“we define a bank credit crunch as a significant leftward shift in the supply curve for bank loans, holding constant both the safe real interest rate and the quality of potential borrowers.”) (citation omitted). 8 see plus loans, u.s. dep’t of educ., http://studentaid.ed.gov/types/loans/plus (last visited may 15, 2014) (“plus loans are federal loans that graduate or professional degree students and parents of dependent undergraduate students can use to help pay education expenses.”); see also libby a. nelson, cracking down on plus loans, inside higher education, oct. 12, 2012, http://www.insidehighered.com/print/news/2012/10/12/standards-tighteningfederal-plus-loans?width=775&height=500&iframe=true (reporting estimate that nearly half of potential plus loan borrowers may be denied this academic year alone); mark kantrowitz, solving the student loan credit crunch, apr. 30, 2008, http://www.finaid.org/educators/studentaidpolicy.phtml. 9 see national association of college and university business officers, the financial downturn and its impact on higher education institutions, http://www.nacubo.org/documents/impact%20of%20the%20economy%20on%20 higher%20education.pdf (last visited may 15, 2014); see generally miquel pellicer-gallardo, education and financial market participation 2 (padova university working paper 51, 2005). 10 see generally u.s. gov’t accountability office, student loans: federal web-based tool on private loans would pose implementation challenges and may be unnecessary (2010), http://www.gao.gov/assets/320/310215.pdf.; carol jensen & cynthia marrs, a primer on student loans, enrollment management journal, winter 2009, at 45, 56 (“good credit for students will be important . . . and will allow students to continue their educations.”); lea shepard, toward a stronger financial history antidiscrimination norm, 53 b.c. l. rev. 1965 (2012), http://lawdigitalcommons.bc.edu/ bclr/vol53/iss5/3; see kantrowitz, supra note 8, at 2, 16 (stating that private student loan lenders may have increased their credit score thresholds without formal announcement). 11 see patricia gandara, et al., expanding opportunity in higher education 60-62 (suny press 2006). 12 see generally lawrence e. gladieux & arthur m. hauptman, the college aid quandary: access, quality, and the federal role 1-5 (brookings institution 1995). 13 see generally jacob p.k. gross, et al., what matters in student loan default: a review of the research literature, 39 j. of student fin. aid, no. 1, 2009 at 19; college board, trends in student aid 21 (2012), http://trends.collegeboard. foreclosures and financial aid vol. 4:2 132 the tightening financial aid market may also affect efforts to recruit and retain first-generation college students and other vulnerable populations, such as recent immigrants.14 plus loans fill the gap between financial need and college expenses,15 but that gap-filling function has been greatly reduced due to stringent credit checks and unforgiving underwriting standards that are exacerbated by the recent rise in student loan defaults.16 accordingly, eligible plus loan applicants now undergo heightened financial scrutiny to secure financial aid pursuant to the new underwriting standards implemented during the 2012–2013 academic year.17 the “adverse credit” non-eligibility factor outlined in the hea18 for plus loans was recently revised to exclude applicants who have experienced bankruptcy, loan modifications, and foreclosures.19 this subtle move in plus loan eligibility negatively impacted and realigned the financial aid packages of deserving, yet economically-disadvantaged college students nationwide.20 org/sites/default/files/student-aid-2012-full-report.pdf (finding that 3.4% of undergraduate parents obtained a plus loan or an average amount of $12, 575 per loan in 2011-12). 14 see generally john h. shuh, et al., student services: a handbook for the profession 20 (2007); stephen burd, undermining pell: how colleges compete for wealthy students and leave the lowincome behind 2 (may 2013), http://newamerica.net/sites/newamerica.net/files/policydocs/merit_aid%20final.pdf (“federal action is needed to ensure that colleges continue to provide a gateway to opportunity, rather than perpetuating inequality by limiting college access to only those who are rich enough to be able to afford it.”); lee gardner, ‘dreamers’ could receive federal student loans under immigration bill, the chronicle of higher education (may 21, 2013), http://chronicle.com/article/dreamers-could-receive/139425/. 15 see generally marian wang, et al., the parent loan trap, the chronicle of higher education (oct. 4, 2012), http://chronicle.com/article/the-parent-plus-trap/134844; susana garcia, dream come true or true nightmare? the effect of creating educational opportunity for undocumented youth, 36 golden gate u. l. rev. 2 (2006) (discussing that the development, relief, and education for alien minors (dream) act that would permit eligible undocumented individuals to enroll in u.s. colleges is cost effective and will benefit american society); elisha barron, the development, relief, and education for alien minors (dream) act, 48 harv. j. on legis. 289, 623 (2011); andorra bruno, cong. research serv., unauthorized alien students: issues and “dream act” legislation 3 (2010) (“even if they are able to gain admission, however, unauthorized alien students often find it difficult, if not impossible, to pay for higher education. under the higher education act (hea) of 1965, as amended, they are ineligible for federal financial aid. in most instances, unauthorized alien students are likewise ineligible for state financial aid. furthermore, . . . they also may be ineligible for in-state tuition.”). 16 see generally nelson, supra note 8. 17 united student aid funds, parent plus loan denial issues (2012), http://www.usafunds.org/schools/ webcastmaterials/plusloandenialissues.pdf (noting that the u.s. department of education changed its credit underwriting procedure in october 2011, thereby resulting in increased plus loan denials); see generally mark kantrowitz, congress passes legislation ending the federally-guaranteed student loan program, fastweb, (sept. 22, 2009), http://www.fastweb.com/financial-aid/articles/1589-congress-passes-legislation-ending-the-federally-guaranteedstudent-loan-program (reporting on the student aid and fiscal responsibility act of 2009 that replaced the federal family education loan program (ffelp) with direct loans). 18 higher education act of 1965, tit. ix, pub. l. no. 89-329, 79 stat. 1219, amended by education amendments of 1972, pub. l. no. 92-318, 86 stat. 235 (codified as amended at 20 u.s.c. §§ 1681-88 (2012)); see generally texas guaranteed student loan corporation, higher education act, http://www.tgslc.org/policy/hea.cfm (last visited feb. 22, 2014) (“the higher education act (hea) is the federal law that governs the administration of federal student aid programs. the hea was originally passed in 1965 and signed into law by president lyndon b. johnson. to encourage growth and change, it must be re-approved, or ‘reauthorized,’ by congress approximately every five years. in addition to major reauthorization bills, congress also considers many bills that may directly or indirectly impact the hea.”). 19 see nelson, supra note 8 (“according to education department standards, prospective borrowers can’t have any current accounts more than 90 days delinquent, or any foreclosures, bankruptcies, tax liens, wage garnishments or defaults within the past five years.”); wang, supra note 15. 20 see nelson, supra note 8 (“a little-noticed education department change in october 2011 added new underwriting standards for the plus loan, the federal lending program for parents and graduate students. the changes made requirements more stringent and appear to have caused a spike in denials, including some to parents who had been 2014 columbia journal of race and law 133 the hea, passed in 1965 and most recently reauthorized in 2008, provides for federal financial aid spending.21 subsequent renewal of the hea stands to modernize the plus loan lending system and may result in more equitable student aid borrowing and distribution.22 federal plus loans were once praised as a viable option for families to cope with skyrocketing college costs.23 the contrast between the plus loans of today and former plus loans closely follows a trend of loan approvals and denials along based on consumer creditworthiness and strict underwriting guidelines.24 plus loan eligibility now largely depends on the applicant’s personal or family credit, as opposed to simple standards of admission and enrollment in an approved and accredited college program.25 parallels between plus loans issued before and after 2011 warrants a review, or even repeal of the abrupt changes to the student loan credit standard.26 the need for innovation and improvement in the administration of the plus loan program is particularly acute at historically black colleges and universities (hbcus),27 and institutions that serve low-income individuals with limited resources.28 able to take out the loans in previous years.”); wang, supra note 15 (“the change may result in significantly more parent plus loan denials . . . and some financial-aid officers’ recent observations seem to bear that out. but new denials may actually involve the wrong people. after all, the tightened underwriting still examines aspects of credit history, not ability to repay.”). 21 see what you need to know about reauthorization, the chronicle of higher education (sept. 19, 2013), http://chronicle.com/article/what-you-need-to-know-about/141697/; kelly field, 5 years on, renewed higher-ed act has lost its luster, the chronicle of higher education (aug. 12, 2013), https://chronicle.com/article/5-yearson-renewed-higher-ed/141043/. 22 see andy thomason, reauthorization of higher education act to begin next week, the chronicle of higher education (sept. 13, 2013), http://chronicle.com/article/reauthorization-of-higher/141641/; but see generally alyson klein, renewals of education laws languish in congress, education week, jan. 15, 2014 (“as the 113th congress returns for its second year, nearly every major education law remains overdue for reauthorization, leaving issues from early childhood to workforce development caught in a vortex of partisan rancor. . . . the slow pace of legislative progress has put the obama administration largely in the driver's seat on education policy. . . .”). 23 see jeffrey steele, plus loans get an a from many borrowers, chicago tribune, dec. 9, 2003, http://articles.chicagotribune.com/2003-12-09/business/0312090096_1_parent-loan-loan-program-financial-aid (noting that there was no scoring of income or analysis of cash-flow analysis in the former credit review for plus loan eligibility). 24 see thurgood marshall college fund, parent plus loans, http://www.thurgoodmarshallfund.net /images/stories/site/ppl/ppl.pdf (“as a result of the change in eligibility criteria, tens of thousands of students across the nation are in jeopardy of being unable to continue their college studies because their parents are unable to obtain loans to cover tuition and fees. in many instances, families who successfully obtained ppl in prior years were denied under the new eligibility criteria for the 2012-2013 and 2013-2014 academic years.”) 25 see generally u.s. dept. of ed., federal student aid: things to consider, https://studentaid.ed.gov /prepare-for-college/choosing-schools/consider. 26 see elvina nawaguna, black colleges push u.s. congress to revoke student aid changes, chicago tribune, oct. 7, 2013, http://articles.chicagotribune.com/2013-10-07/news/sns-rt-us-usa-studentloans-hbcus-20131007_1_plus-loans -student-aid-black-colleges (“advocates for minority and low-income students are now focusing on congress, hoping they can sway lawmakers to reverse the changes to plus loans and other disadvantageous reforms. they are pinning their hopes to the higher education act, a half-century old law that lays out guidelines for distributing federal student aid and is due for reauthorization next year . . . . further, they want lawmakers to reduce the interest rates and origination fees on plus loans. a new law that ties student loan interest rates to the 10-year treasury note set their interest rate 6.41 percent for this academic year, but could spike to their cap of 10.5 percent as the economy improves. the interest rate was previously fixed at 7.9 percent.”); see also steele, supra note 23 (noting the former ease of application for the plus loan program with “a gentle credit check” for delinquencies up to 30 days, no collateral, flexibility in repayment, and an interest rate cap) (quoting, in part, david charlow). 27 see kelly field, in victory for hbcus, department to reconsider a policy change on parent plus loans, the chronicle of higher education (aug. 15, 2013), http://chronicle.com/article/in-victory-for-hbcus/141133/ (addressing reconsideration of the “adverse credit” definition during rule-making sessions scheduled for the spring of foreclosures and financial aid vol. 4:2 134 personal finances for many americans drastically changed as a result of the great recession.29 changes in consumer finances and personal accountability must be taken into account when considering the root cause of the student loan bubble that continues to expand.30 a chain reaction occurred when financial institutions and consumers undertook risky investments.31 a vast number of americans were directly affected by toxic financial investments, particularly those acquired by minority participants in the housing and higher education markets, thereby resulting in financial hardship that oftentimes could not be easily mitigated.32 consequently, less consumer spending and more cautious financial lending placed 2014 while easing eligibility requirements for parents with minor credit history issues); jamal watson, education secretary issues apology to hbcu leaders, diverse issues in higher education, sept. 26, 2013, http://diverseeducation.com/ article/56269/; justin doubledy, with parents denied loans, students scramble at hbcus, the chronicle of higher education (oct. 7, 2013), http://chronicle.com/article/without-federal-plus-loans/142147/ (“a tightening of the [plus] loan program's eligibility criteria two years ago has hit historically black colleges . . . especially hard, as they serve many students who rely on the loan, and a considerable share whose families no longer qualify. seeing enrollment declines, some colleges have formed a coalition to protest the change. students, meanwhile, have had to drop out or scramble to find other forms of financing. . . . until 2011, applicants were approved for a plus loan as long as they were not more than 90 days delinquent on any debt, and did not have any foreclosures, bankruptcies, tax liens, wage garnishments, or student-loan defaults in the past five years. under the new standards, unpaid debts in collection and student loans written off as unpayable in the previous five years also count against applicants.”); hansi lo wang, student loan changes squeeze historically black colleges, code switch (sept. 26, 2013, 4:40 pm), http://www.npr.org/blogs/code switch/2013/09/26/226552999/student-loan-changes-squeeze-historically-black-colleges; see also mark kantrowitz, parent plus loan denial rates in the ffel and direct loan programs (aug. 31, 2009), http://www.finaid.org/educators/ 20090831parentplusdenial.pdf; kevin carey, the federal parent rip-off loan, the chronicle of higher education (june 3, 2013), http://chronicle.com/article/the-federal-parent-rip-off/139575/ (“more broadly, the parent plus debate is symptomatic of a larger crisis among underresourced colleges that serve large numbers of low-income students. this is, again, not a problem specific to hbcus. whole sectors of higher education, particularly private colleges that depend heavily on tuition revenue, have been swept along by a 30-year wave of price increases.”). 28 see carey, supra note 27 (“the proportion of parent plus applications denied because of bad credit increased from 28 percent to 38 percent in a single year. over all, some 400,000 applications were denied. and while most of them were not parents with children attending historically black colleges and universities, those hbcus were disproportionately hit. without parent plus loans, enrollment dropped, and revenues quickly followed.”); am. council on educ., recommendations from 39 higher education associations for the reauthorization of the higher education act, 6, 13 (aug. 2, 2013), http://www.acenet.edu/news-room/documents/heareauthorization-recs-080213.pdf; see generally the educ. trust, priced out: how the wrong financial-aid policies hurt low-income students (2011), http://www.edtrust.org/sites/edtrust.org/files/publications/files/ pricedoutfinal2.0_0.pdf; marian wang, public colleges’ quest for revenue and prestige squeezes needy students, the chronicle of higher education (sept. 11, 2013), https://chronicle.com/article/public-colleges-quest-for /141541/. 29 see generally paul taylor, et al., a balance sheet at 30 months: how the great recession has changed life in america, pew research center (june 30, 2010). 30 see generally dan kadlec, scared to prepared: how the great recession changed our spending habits, time magazine, apr. 3, 2013. 31 see barbara o’niel & jing jian xiao, financial responsibility before, during, and after the great recession: results of an online study, j. consumer educ. 28, 34-43 (2011); jacob s. rugh & douglas s. massey, racial segregation and the american foreclosure crisis, 75 am. soc. rev. 629, 629 (oct. 2010). 32 see generally barbara o’niel & jing jian xiao, financial responsibility before, during, and after the great recession: results of an online study, j. consumer educ. 28, 34-43 (2011); jacob s. rugh & douglas s. massey, racial segregation and the american foreclosure crisis, 75 am. soc. rev. 629, 629 (oct. 2010); consumer financial protection bureau, cfpb ruels establish strong protections for homeowners facing foreclosure (jan. 17, 2013), http://www. consumerfinance.gov/newsroom/consumer-financial-protection-bureau-rules-establish-strong-protections-forhomeowners-facing-foreclosure/; experian team, impact on credit scores of missed payments, mortgage modification, experian advice blog (mar. 28, 2012), http://www.experian.com/blogs/ask-experian/2012/03/28/impact-onscores-of-missed-payments-mortgage-modification/ (“missing even one mortgage payment will affect your credit scores substantially. multiple missed mortgage payments will seriously damage your credit history, which likely will be reflected in much lower credit scores. as a result, you may have difficulty obtaining new credit for a long period of time.”). 2014 columbia journal of race and law 135 fiscal pressure on the federal government in several areas including the financing of higher education.33 the link between consumer choice in higher education and government spending on financial aid is somewhat tied to the distressed housing market.34 the evolving views on home ownership as a liability as opposed to an asset impacts the pursuit of higher education for many americans, especially those who depended on home equity lines of credit (heloc) loans to help pay for college.35 the increased credit underwriting standard used for federal student loans effectively penalizes unassuming college students and their families who invested in the over-inflated real estate market without adequate protection from predatory lenders.36 the housing bubble and ensuing recession were created in part by unscrupulous lenders and investors, as well as uninformed consumers.37 many consumers were unaware of the complexity and toxicity of their home mortgages that were backed by private and public investors.38 when these investments soured, lower and middle class borrowers whose homes were their greatest assets were disproportionately targeted for foreclosure.39 minorities were particularly encouraged to take advantage of home ownership incentives from lenders and the federal government as a means of becoming upwardly mobile.40 unfortunately, the collapsed housing market actually had the reverse 33 see generally ivaylo petev, et al., consumption and the great recession: an analysis of trends, perceptions, and distributional effects 6-7 (2011), http://www.stanford.edu/~isaporta/cons_recess_ august_2011.pdf (“in stark contrast to the 2001 recession, the great recession, which began with the burst of the housing bubble and the global financial crisis that ensued, is characterized by a decline in real terms in all consumption components.”). 34 see generally paul o’donnell, how the student loan crisis drags down home prices, cnbc (march 4, 2013), http://www.cnbc.com/id/100513344. 35 see generally rohit chopra, should i use a home equity loan to refinance my student loans?, cfpb blog (june 7, 2013), http://www.consumerfinance.gov/blog/should-i-use-a-home-equity-loan-to-refinance-my-student-loans/; finaid, using your home equity, http://www.finaid.org/savings/homeequity.phtml (last visited june 12, 2014); brian o’connell, should you pay for college with an heloc?, nasdaq, http://www.nasdaq.com/personalfinance/should-you-pay-for-college-with-an-heloc.aspx. 36 see generally mechele dickerson, the myth of homeownership and why home ownership is not always a good thing, 84 indiana l.j. 189, 189-237 (2009). 37 see david luttrell, et al., assessing the costs and consequences of the 2007–09 financial crisis and its aftermath, 8 economic letter (sept. 2013), http://dallasfed.org/assets/documents/research/eclett/2013/el1307.pdf; see also christopher matthews, viewpoint: stop calling student loans a “bubble”!, time magazine, mar. 7, 2013, http://business. time.com/2013/03/07/viewpoint-stop-calling-student-loans-a-bubble/; sandy baum, student loans: crisis, bubble, or manageable policy issue?, student aid perspectives, (sept. 24, 2013), http://www.nasfaa.org/advocacy/perspectives /articles/student_loans__crisis,_bubble,_or_manageable_policy_issue_.aspx (“to simplify a complex issue, the housing loan crisis occurred when people bought houses with mortgages they could not afford expecting the prices of the houses to rise. they thought they would be able to sell those homes at a profit, but interest rates on many of these mortgages rose and prices collapsed. many homeowners ended up owing the bank more than the equity they had in their homes and many were unable to make the required payments. selling wasn’t viable and those who lost their jobs or were victimized by predatory lenders often couldn’t make the payments.”). 38 see luttrell, supra note 37 (“a confluence of factors produced the december 2007–june 2009 great recession—bad bank loans, improper credit ratings, lax regulatory policies and misguided government incentives that encouraged reckless borrowing and lending.”); see also joseph e. stiglitz, student debt and the crushing of the american dream, the great divide, (may 12, 2013, 9:09 pm), http://opinionator.blogs.nytimes.com/2013/05/12/studentdebt-and-the-crushing-of-the-american-dream/?_r=0. 39 see taylor, supra note 29; karyn lacy, all’s fair? the foreclosure crisis and middle-class black (in)stability, 56 am behavioral sci. 1565, 1565-79 (nov. 2012); ben henry, et al., wasted wealth: how the wall street crash continues to stall economic recovery and deepen racial inequality in america 7, alliance for a just society (may 2013), http://allianceforajustsociety.org/wp-content/uploads/2013/05/wasted.wealth_national.pdf (“families of color hold significantly higher percentages of wealth in home equity, with 52% of total assets for latino families and 49% for black families, compared to just 28% for white families.”) (citation omitted). 40 see stiglitz, supra note 38; emily badger, were big banks guilty of racial discrimination in the housing crisis?, the atlantic cities place matters (oct. 16, 2012), http://www.theatlanticcities.com/housing/2012/10/did-big-bankssubprime-mortgage-crisis-violate-civil-rights-law/3598/. foreclosures and financial aid vol. 4:2 136 effect: it contributed to a sizeable depreciation of household wealth, especially for at-risk minority families who invested in the real estate market.41 as a result of the relation between home ownership and financial health, vulnerable populations are specifically at greater risk of developing adverse credit histories when they invest in home mortgages.42 evidence suggests that there is a causal connection between foreclosure rates and the denial of student aid, especially among african americans and latinos.43 specifically, the housing crisis negatively impacted college enrollment for people of color in the united states, resulting in mortgage defaults that labeled borrowers as having an “adverse credit history,” thereby precluding their eligibility for the enhanced plus loan program.44 the bursting of the housing bubble, and the subsequent financial fallout, disproportionately affected underrepresented minorities who were more likely than their white counterparts to be offered subprime mortgages.45 predatory lending and financial literacy shortfalls contributed to the deleterious effect of the housing crisis on vulnerable populations that drastically depleted household wealth and decimated the personal finances of those affected.46 consequently, those who were most affected by the housing crisis may be precluded from full participation in the federal financial aid market due to blemishes on their credit reports.47 potential student and parent plus loan borrowers are now subject to rejection in record numbers as a result adverse credit concerns.48 the cyclical relation of the housing and student aid industries warrants greater attention from federal financial regulators.49 this article provides a basis for governmental supervision and oversight of the federal financial aid program in light of the changing personal circumstances exacerbated by the persistent housing crisis.50 the shifting need of borrowers stemming from the erratic financial market is reviewed herein as an analysis to enhance the stability of the higher education system.51 the fluctuating political climate regarding student loans further contributes to the uncertainty that college students and their families experience as they deplete their personal savings to finance their degrees.52 the 41 see luttrell, supra note 37 (reporting that the average american family lost $50,000 to $120,000 in potential earnings with a collective decline in household wealth of $16 trillion during the period of the great recession); u.s. congress, joint econ. comm., assessing the impact of the great recession across the states (2010), available at http://journalistsresource.org/wp-content/uploads/2011/09/assessing.pdf. 42 see, taylor supra note 29; see also stiglitz, supra note 38; see generally jackson toby, the looming student loan crisis, the american (may 14, 2013), http://www.american.com/archive/2013/may/the-looming-student-loan-crisis; henry, supra note 39. 43 see latanya brown & daren a. conrad, the foreclosure crisis, parent plus loan approvals, and minority college enrollment: is there a link?, 3 am int’l j. of contemp. res. (jan. 2013), available at http://www.aijcrnet.com/journals/ vol_3_no_1_january_2013/9.pdf. 44 id. 45 id. 46 id. 47 id. 48 id. 49 see stiglitz, supra note 38. 50 see generally consumer financial protection bureau, ann. rep. of the cfpb student loan ombudsman (oct. 16, 2013); ilyce r. glink & samuel j. tamkin, real estate matters: is the housing crisis over? maybe not for minorities., washington post (june 11, 2013, 5:30 am), http://www.washingtonpost.com/blogs/where-welive/wp/2013/06/11/real-estate-matters-is-the-housing-crisis-over-maybe-not-for-minorities/; see henry, supra note 39. 51 see consumer financial protection bureau, supra note 50. 52 see bipartisan student loan certainty act of 2013, pub. l. no. 113-28, 127 stat. 506 (to be codified as amended at 20 u.s.c. 1087e(b)); see also jenna johnson, congress approves student loan plan, washington post (aug. 9, 2013), http://www.washingtonpost.com/politics/obama-signs-student-loan-interest-rate-legislation-into-law/2013/08/ 09/98fb0426-00f2-11e3-9711-3708310f6f4d_story.html. (“the rate for plus loans, which are taken out by parents of students and graduate students, is 6.41 percent. these rates will lock in for the lifetime of the loan. all are lower than the 2014 columbia journal of race and law 137 forthcoming reauthorization of the hea provides a prime opportunity for legislative and administrative interests to converge for the benefit of college students of modest means that the federal financial aid program was established to serve.53 the evolving use of the creditworthiness factor in determining financial aid has drastic consequences for students in financial need, especially for students of color.54 this article examines the historical context of the plus loan program to determine the past, present, and future of federal financial aid in light of the current financial crisis. it also examines public policy arguments and proposes financially sound tactics for balancing the competing interests of risk adverse creditors and welldeserving college students. further, this article analyzes the applicable financial aid policies that stem from the hea subject to periodic reauthorization.55 part ii of this article describes the higher education financial aid landscape, and assesses the public policy of reauthorizing the hea in terms of enhancing plus loan availability. part iii analyzes the problems inherent in the current student loan industry, and addresses the relevant issues in any subsequent evaluation of the revised federal plus loan program, particularly as it pertains to minority communities and the institutions that serve them. part iv proposes a number of recommendations and best practices for relieving the heavy burden of student loan debt original rates of 6.8 for undergraduates and graduates and 7.9 percent for plus loans. the u.s. department of education will now change the interest rates and retroactively apply the new rates to loans taken out since july 1 [of 2013].”). 53 letter from tom harkin, chairman, u.s. senate committee on health, education, labor, and pensions, to higher education stakeholder (sept. 16, 2013), http://www.help.senate.gov/imo/media/doc/hea%20stakeholder% 20letter%209.17.13.pdf; keeping college within reach: the role of federal student aid programs: hearing before the subcomm. on higher educ. and workforce training of the comm. on educ. and the workforce, 113 cong. 2 (2013) (statement of hon. virginia foxx, chairwoman, subcomm. on higher education and workforce training) (“in the coming months, we will work together to reauthorize the higher education act. established in 1965, this law is intended to help low-and middle-income students earn a degree. . . . however, more work must be done. college costs continue to skyrocket, and too many students struggle to navigate our financial aid system. families face uncertainty about repayment options and confusion about the differences between various aid programs.”); what you need to know, supra note 21 (“it’s true that major changes in student-aid policy are now being made outside of the reauthorization process, in spending bills and federal rules. that shift has made the act’s renewal less momentous than it used to be. still, reauthorization remains a major legislative event, with consequences for all of higher education.”); see generally henry, supra note 39, at 2 (“without proactive policy interventions, americans stand to lose hundreds of billions more in wealth, and the racial wealth gap will only continue to widen.”); stiglitz, supra note 38. 54 see generally derek v. price, borrowing inequality: race, class, and student loans 3 (2004) (“individuals from disadvantaged locations within the social hierarchies of race, class, and gender are more likely to borrow for college and are at increased risk for excessive educational debt burden after graduation. “). 55 nat’l alliance for partnerships in equity, higher education act, http://www.napequity.org/publicpolicy/current-laws-and-bills/higher-education-act/ (last visited mar. 7, 2014) (“the 2008 reauthorization changed hea’s regulations regarding students with disabilities, financial aid, and cost transparency in educational institutions. this most recent hea legislation is set to expire in 2013, which requires congress to either reauthorize or extend it by the end of the year. however, if congress fails to pass an on-time reauthorization bill in 2013, then an automatic 1-year extension will take effect. after that, congress must pass additional legislation to extend hea if it is not fully reauthorized.”); see also am. educ. research ass’n, senate kicks off hea reauthorization (oct. 2013) (explaining that the u.s. senate will hold 12 hearings regarding the renewal of the hea to set forth a bill in 2014); u.s. senate comm. on health educ. labor & pensions, most recent hearings on education, http://www.help.senate.gov/issues/issue/?id=20c12 98a-5186-4859-8488-a6731cf07a9e (last visited mar. 7, 2014) (reference for updates of senate hearings on education that may occur after submission of this publication); see, e.g., federal update, chea.org (sept. 26, 2013), http://www.chea.org/government/fedupdate/chea_fu37.html (provided updates on congressional hearings pending the reauthorization of the hea from the senate committee on health, education, labor and pensions and the house of representatives committee on education and the workforce and the subcommittee on higher education and workforce training). foreclosures and financial aid vol. 4:2 138 owed by an estimated 37 million americans to support the effective restructuring of the plus loan program.56 ii. foundational perspectives on higher education and financial aid the principles of federal financial aid are based in the hea as landmark legislation on college access and affordability.57 the hea serves as a benchmark for federal programs and initiatives on student aid.58 the federal financial aid system evolved under authorization by the hea to include the plus loan program. the reauthorization of the hea involves the review of an array of issues pertaining to higher education including the enactment of revised standards for federal financial aid.59 the allocation of resources and program assessment are subject to adaptation in light of the current economic climate.60 reauthorization of the hea takes place periodically, and is estimated to occur approximately every five years.61 the most recent reauthorization of the hea took place in 2008 with the enactment of 56 see meta brown, et al., grading student loans, fed. reserve bank of n.y. (mar. 5, 2012), http://libertystreeteconomics.newyorkfed.org/2012/03/grading-student-loans.html. 57 see nasfaa reauthorization task force to focus recommendations on access and accountability, nasfaa, http://www.nasfaa.org/login.aspx?redirecturl=workarea%2flinkit.aspx%3flinkidentifier%3did%26itemid%3d93 48 (last visited mar. 7, 2014); letter from molly corbett broad, am. council on educ., to john kline, chairman, comm. on educ. and the workforce (aug. 2, 2013), http://www.acenet.edu/news-room/documents/heareauthorization-recs-080213.pdf. 58 see letter from molly, supra note 57. 59 see generally press release, u.s. congress, preparing for higher education act reauthorization, subcommittee explores the role of federal student aid (april 16, 2013), http://edworkforce.house.gov/news/ documentsingle.aspx?documentid=329232; keeping college within reach, supra note 53; memorandum, national association for college admission counseling, higher education act reauthorization: 2014 recommendations, http://www.nacacnet.org/issues-action/legislativenews/documents/hea%20reauthorization%202014%20 recommendations.pdf; memorandum, council of graduate schools, higher education reauthorization (jan. 25, 2014), http://www.cgsnet.org/sites/default/files/higher_education_act_jan_25_2014.pdf; memorandum, american association of state colleges and universities, top 10 higher education state policy issues for 2014 (jan. 2014), http://www.aascu.org/policy/publications/policy-matters/top10statepolicyissues2014.pdf (“despite the fact that the hea’s most recent authorization expired in 2013, it is unlikely to be reauthorized this year. nevertheless, state legislators will pay attention to the policy and funding priorities of hea reauthorization emanating from initial congressional deliberations, as well as the impact of any proposed federal mandates.”); mitchell d. weiss, 10 ways to fix student loans in 2014, credit.com, (jan. 14, 2014), http://blog.credit.com/2014/01/student-loans-in-2014-73657/ (“the hea has helped america to become a better educated country. unfortunately, it also made it possible for many schools and financial institutions to help themselves at taxpayer expense. perhaps the act doesn’t need to change as much as the manner in which it’s administered.”). 60 see generally troy onink, the future of college financial aid, according to the man who influences billions of it, forbes (june 5, 2014, 3:04pm), http://www.forbes.com/sites/troyonink/2014/06/05/the-future-of-college-financialaid-an-interview-with-justin-draeger/ (interview with justin draeger, president, nasfaa) (“the elimination of the option for students to use pell grants year round and the loss of subsidies on graduate student loans are just two examples of benefit losses for students. other changes—like new limitations on financial aid eligibility criteria—are much less transparent to the public.”); newsweek staff, how the economy has changed financial aid, newsweek (aug. 11, 2009, updated mar. 13, 2010), http://www.newsweek.com/how-economy-has-changed-financial-aid-78681. 61 the early history of the higher education act of 1965, nat’l trio clearinghouse, http://www.pellinstitute. org/downloads/trio_clearinghouse-the%20early%20history%20of%20the%20higher%20education%20act%20of% 201965.pdf (last visited mar. 7, 2014); higher education act, ass’n for career & technical educ., https://www.act eonline.org/hea/#uxpf-ujdvlp (last visited mar. 7, 2014). 2014 columbia journal of race and law 139 the higher education opportunity act (heoa).62 subsequently, changes to the federal financial aid program have emerged through the implementation of various rules and regulations undertaken by a number of federal agencies.63 the u.s. department of education instituted the current changes to the credit worthiness factor of the plus loan program.64 the department of education also set forth the federal policies regarding financial aid under the hea.65 the functionality and focus of the plus loan program is under scrutiny by lawmakers, university stakeholders, and public policy advocates.66 the upcoming reauthorization of the hea serves as an opportunity to revise the plus loan program to adjust the dramatic shift in eligibility that has resulted, in part, from the impact of the great recession on the access to credit and capital.67 the doddfrank act, through the consumer financial protection bureau (cfpb), addresses the private student loan market to a degree; however, the federal student loan system is still in need of reform.68 the reauthorization of the hea may include oversight of the department of education in altering the “adverse credit history” factor for plus loan eligibility.69 reauthorization of the hea also provides an opportunity for public commentary, and gives ample notification of pending changes to critical financial aid products such as the plus loan for parents and graduate students.70 62 higher education opportunity act, pub. l. no. 110-315, 122 stat. 3078 (2008) (codified as amended in scattered sections of 5, 12, 15, 20, 25, and 42 u.s.c.). 63 see generally kamille wolff dean, student loans, politics, and the occupy movement: financial aid rebellion and reform, 46 j. marshall l. rev. 105 (2012). 64 see dianne hayes, obama administration plans changes to parent plus loans, diverse issues in higher educ. (aug. 15, 2013), http://diverseeducation.com/article/55297/. 65 see the early history, supra note 61. 66 see hayes, supra note 64. 67 see rachel fishman, the parent trap: parent plus loans and intergenerational borrowing, new am., (jan. 2014), http://education.newamerica.net/sites/newamerica.net/files/policydocs/20140108-parenttrap-finalreleasesinglepages.pdf; see generally american council on education, recommendations from 39 higher education associations for the reauthorization of the higher education act (aug. 2, 2013), http://www.acenet.edu/news-room/documents/heareauthorization-recs-080213.pdf (“while many factors will contribute to hea policy formulation, the current economic and social climate is likely to play an outsized role in shaping the kinds of policies that will be adopted . . . . but in the long history of the hea and its successive renewals, there may never have been such a tumultuous environment for making consequential policy decisions.”). 68 see report on private education loan and private educational lenders, consumer financial protection bureau, http://www.consumerfinance.gov/dodd-frank/section-1077/ (last visited mar. 7, 2014); wall street reform: the doddfrank act, the white house, http://www.whitehouse.gov/economy/middle-class/dodd-frank-wall-street-reform (last visited mar. 7, 2014); see generally plus loan accessibility act, h.r. 2966, 113th cong. (2013). 69 see plus loan accessibility act, supra note 68 (“to amend the higher education act of 1965 to suspend, for a certain period, the use of adverse credit history in determining eligibility for federal direct plus loans.”); see generally letter from molly, supra note 57, at 3 (“since the previous reauthorization bill was passed five years ago, other legislation has been enacted amending some elements of the student financial aid programs and many of these changes have had far-reaching consequences for the programs and the students who rely on them or have created a certain budget brinksmanship that has the potential to destabilize the programs. however necessary or well-intentioned, legislation enacted outside of the parameters of reauthorization is never able to fully account for the interactive effects that changes to one program may have on the net effect or the potential of title iv to live up to its promise of meeting national access and success mandates.”). 70 see 20 u.s.c. § 1078-2 (2012); letter from john kline, chairman, comm. on educ. and the workforce, to higher education stakeholder (apr. 25, 2013), http://edworkforce.house.gov/uploadedfiles/04-25-2013.pdf; letter from vincent sampson, deputy assistant secretary for policy, planning, and innovation, u.s. dep’t of educ., to the office of postsecondary education, u.s. dep’t of educ. (dec. 2008), http://www.ifap.ed.gov/dpcletters/attachments/ gen0812fp0810.pdf (“as required by the hea, the department will issue regulations for some of the programs affected by the heoa through the negotiated rulemaking process. for other programs, the necessary regulatory foreclosures and financial aid vol. 4:2 140 a. the need for student loan reform through the higher education act “let’s write a new law—repeal the old law and have new regulations written with our oversight, not as an ideological exercise but simply in the way that someone would weed a garden before planting a new crop. because we all know what happens – during the previous eight authorizations, we have new well-intentioned ideas, we just pile them on top of the existing well-intentioned ideas.”71 the hea72 established the core federal financial aid programs, including the educational opportunity grant program, a predecessor of the pell grant,73 and the guaranteed student loan program that later developed into the stafford loan program.74 the hea has been amended several times since its enactment and is subject to occasional reauthorization.75 while the hea is set for reauthorization, financial aid reform is likely to be a main issue.76 today, federal financial aid is under the auspices of the united states department of education that issues an estimated $150 billion in loans and work-study funds annually to pay for college related expenses.77 the federal plus loan program was established under the 1980 reauthorization of the hea to provide aid to legal guardians of dependent college students.78 plus loans were initially available to changes will be made either through notice and comment rulemaking or, where the new regulations will merely reflect the changes to the hea and not expand upon those changes, without notice and comment.”); see generally plus loan accessibility act, supra note 67. 71 liz wolgemuth, alexander: senate should “start from scratch” on higher education act, u.s. comm. on health educ. labor & pensions (sept. 19, 2013), http://www.help.senate.gov/newsroom/press/release/?id=c581a00a-e1374c26-8a5e-d9419ac83048 (quoting senator lamar alexander). 72 see generally patricia somers & james cofer, singing the student loan blues: multiple voices, multiple approaches?, student loan debt: probs. & prospects 125 (1997), http://www.ihep.org/%5cassets%5cfiles%5c/publications/ s-z/studentloandebt.pdf (“[t]he original purpose of hea, which was to provide access to all students, regardless of their socioeconomic status, has been obscured through these actions. by attempting to serve two goals, access and choice, low-income students cannot afford even a moderately priced public institution without borrowing, and middleincome students cannot attend a private institution without excessive borrowing.”) 73 see gandara, supra note 11, at 54 (noting that the federal pell grant program was created pursuant to an amendment to the hea in 1972 to assist low and moderate income students with grants to pay for college); shuh, supra note 14, at 16 (chronicling the movement towards social justice in education with federal student aid programs including the basic educational opportunity grants (beog) that became pell grants, and supplementary educational opportunity grants (seog), making college more affordable for low-income students). 74 see michael mumper & pamela vander ark, evaluating the stafford student loan program: current problems and prospects for reform, 62 j.l of higher educ. 62 (jan.-feb. 1991). 75 see history of student financial aid, finaid.org, http://www.finaid.org/educators/history.phtml (last visited mar. 7, 2014) (the hea was amended in 1968, 1992, 1998. the hea was reauthorized in 1976, 1980, 1986, and 2008); the early history, supra note 61 (“the higher education act of 1965 was reauthorized in 1968, 1972, 1976, 1980, 1986, 1992 and 1998 [and 2008].”). 76 see generally libby a. nelson, four more years, inside higher educ., nov. 7, 2012; libby a. nelson, tangling over accountability, inside higher educ., feb. 5, 2013; david moltz, looking ahead to 2013, inside higher educ., dec. 3, 2010; ace on government regulation, am. council on educ., http://www.acenet.edu/advocacynews/pages/government-regulation.aspx (last visited mar. 7, 2014) (“current reauthorization for the heoa expires at the end of 2013 though it is unclear when the next reauthorization process will begin.”). 77 see aid and other resources from the federal gov’t, fed. student aid, http://studentaid.ed.gov/types (last visited mar. 7, 2014); kim clark, the minuses of student plus loans, marketplace (oct. 14, 2010, 20:03), http://www.marketplace.org/topics/life/minuses-student-plus-loans. 78 see education amendments of 1980, pub. l. no. 96-374, 94 stat. 1367 (codified as amended in scattered sections of 20 u.s.c.); parents, federal student aid, http://www.direct.ed.gov/parent.html (last visited mar. 7, 2014) 2014 columbia journal of race and law 141 parent borrowers for their children as beneficiaries pursuant to the hea.79 restrictions were originally placed on the applicant amount available for plus loans, but the 1992 hea amendments effectively eliminated the previous plus loan limits.80 the federal legislature opened the plus loan program to graduate and professional student borrowers with the enactment of the higher education reconciliation act (hera) of 2005.81 three years later, the higher education opportunity act of 2008 (“heoa”) reauthorized the hea.82 pursuant to the heoa, plus loan applicants are subject to a credit review for adverse credit history.83 the heoa also served to eliminate the deferred repayment start date option for parent plus loans from up to six months after the dependent student leaves school to require the first payment of principal within the sixty days from the disbursement date of the final allocation of the loan proceeds.84 the hea is currently scheduled for congressional reauthorization, although regulatory action may ensue in the meantime towards relieving student debt.85 the impending hea reauthorization (parent plus loans are only available to biological, adoptive, and stepparents of eligible dependent students enrolled at least half time in college); usa funds univ., stafford/plus loans: the basics 11 (2013), http://www.usafunds. org/usafunds%20resourcelibrary/staffordplusbasicsmanual.pdf; gross, supra note 13, at 19; see generally tg research and analytical services, higher education act: forty years of opportunity 37-38 (2005), http://www.tgslc.org/pdf/hea_history.pdf; history of student financial aid, finaid, http://www.finaid.org/educators/ history.phtml (last visited mar. 7, 2014). 79 see gross, supra note 13, at 19; see also 34 cfr 685.200(c) (parent plus loan eligibility). but see 34 cfr 685.200(b) (plus loan availability for graduate and professional students). 80 parents, supra note 78 (while there is no limit in the amount that a borrower may obtain from a plus loan, the amount disbursed is restricted to an amount determined by the institution the student attends and may not exceed college costs); graduate and professional student plus loans, finaid, http://www.finaid.org/loans/gradplus.phtml (last visited mar. 7, 2014) (the plus loan is effectively limited by the cost of college attendance minus any financial aid obtained); historical loan limits, finaid, http://www.finaid.org/loans/historicallimits.phtml (last visited mar. 7, 2014); see also higher education amendments of 1992, pub. l. no. 102-325, 106 stat. 448 (codified as amended in scattered sections of 20 u.s.c.); 34 c.f.r. § 685.203(f)-(g) (2013); susan b. hannah, the higher education act of 1992: skills, constraints, and the politics of higher education, 67 j. of higher educ., sept.-oct. 1996, at 498 (“[t]he politics of hea ’92 are important because they resulted in a significant shift in federal policy from an historic commitment to promote access to postsecondary education through grants based on need to a broader strategy of insured loans regardless of family income.”). 81 see higher education reconciliation act of 2005, pub. l. no. 109-171, 120 stat. 155 (codified in scattered sections of 20 u.s.c.). 82 see higher education opportunity act, pub. l. no. 110-315, 122 stat. 3078 (2008) (codified as amended in scattered sections of 5, 12, 15, 20, 25, and 42 u.s.c.). 83 see higher education opportunity act, § 424(a)(1). 84 see higher education opportunity act, § 424(a)(2); see also ensuring continued access to student loans act (ecasla), pub. law 110-227 (2008) (the plus loan borrower had the option under the ecasla to pay the accrued interest either monthly or quarterly, or have the interest capitalized periodically); see generally direct loans bulletin dlb08-24 (oct. 2008), available at https://my.flagler.edu/ics/icsfs /deferment_options_for_parent_plus_loan_borrowers.pdf?target=43913515-be59-4b5b-9821-1b6e0ccbc09c (“subsequent to publication of dlb-08-17 and before we were able to issue additional operational guidance on the delayed repayment option for parent direct plus loan borrowers, the higher education opportunity act (the heoa) was enacted. this legislation established deferment provisions for plus loan borrowers that superseded the changes made by the ecasla.”). 85 press release, educ. & the workforce comm., committee leaders call for feedback on higher education act reauthorization (apr. 25, 2013), http://edworkforce.house.gov/news/documentsingle.aspx?documentid=331585; letter from kline, supra note 70; negotiated rulemaking committee; public hearings, federal register (apr. 16, 2013), https://www.federalregister.gov/articles/2013/04/16/2013-08891/negotiated-rulemaking-committee-public-hearings; see generally sara lipka, quest for good graduation data will be key to next higher education act, chronicle of higher education (nov. 15, 2012), http://chronicle.com/article/quest-for-good-graduation-data/135816/; libby a. foreclosures and financial aid vol. 4:2 142 subjects the federal student aid program to a number of substantive changes, including the revision of plus loan policies.86 the upcoming reauthorization of the higher education act will be an opportunity to focus on runaway college costs and promote a system of shared responsibility among all stakeholders: the federal government, states, institutions, and students and families.87 legislation regarding the federal plus loans falls under title iv of the hea, and the corresponding regulations are under title 34 of the code of federal regulations.88 sections 428b and 451 of the hea should be considered for revision in regards to the problems created by the credit eligibility standards of the plus loan program.89 in addition, sections 685.102, 685.200, and 685.201 of title 34 of the code of federal regulations should be reviewed to revise the implementation and administration of the plus loan program.90 disbursement costs and origination fees could also be revised to reenact the former interest rebate under the now expired provision of the budget control act of 2011.91 section 685.200 of title 34 of the code of federal regulations addresses borrower eligibility for the plus loan program, including the “adverse credit” requirement.92 the interpretation of the “adverse credit” term is pertinent, and the meaning of the term for plus loans is stated in section 685.200(c) to include consideration of any debt.93 moreover, defaults, bankruptcies, foreclosures, repossessions, tax nelson, trying again on ‘gainful’, inside higher education, apr. 16, 2013; see generally doug lederman, hea: a huge, exacting accountability bill, inside higher ed (aug. 1, 2008), http://www.insidehighered.com/news/2008 /08/01/hea#sthash.xa3z8dnf.dpbs (“given that the bill by its nature has such a sweeping agenda, and that it becomes a magnet for proposals from the increasing numbers of federal lawmakers who are interested in education policy and have their own ideas for what to do, it may be almost inevitable that the higher education act renewal ends up being disjointed rather than full of vision.”). 86 see generally libby a. nelson, and so it begins, inside higher education, apr. 17, 2013; libby a. nelson, higher ed in the next congress, inside higher education, oct. 10, 2012 (recent issues before congress include pell grant shortfalls and subsidized student loan interest rate hikes); nasfaa, supra note 57; matt aschenbrener, reauthorization of the higher education act: implications for student affairs administrators, naspa (dec. 6, 2013), http://www.naspa.org/rpi/posts/reauthorization-of-the-higher-education-act-implications-for-student-affair (“some have suggested this reauthorization may overhaul and streamline the financial aid system, providing a single grant program, a single loan program, and a work-study opportunity to students with financial need.”); memorandum from national association of student financial aid administrators, preliminary report of the nasfaa reauthorization task force to the membership (july 2013), http://www.nasfaa.org/reauth/. 87 press release, u.s. senate comm. on health educ. labor & pensions, harkin statement on the president’s higher education speech (aug. 22, 2013), http://www.help.senate.gov/newsroom/press/release/?id=34820ea1-ae68486e-baee-efe8edb4980a (quoting senator tom harkin). 88 see higher education act of 1965, pub. l. no. 89 – 329, 79 stat. 1219, amended by bipartisan student loan certainty act of 2013, pub. l. no. 113 – 28, 127 stat. 506; 34 c.f.r. § 685 (2014). 89 see 20 u.s.c. § 1078 – 2 (2012); 20 u.s.c. § 1087a (2012); see generally usa funds, supra note 78. 90 see generally usa funds, supra note 78. 91 budget control act of 2011, pub. l. no. 112 – 25, 125 stat. 240; higher education act of 1965, 20 u.s.c. 1078 – 2(d)(3); see also usa funds, supra note 78 at 12-13 (stating that plus loans are ineligible for federal interest subsidies) (“in the past, the dl program offered an up-front interest rebate calculated on the gross loan amount (before fees) and added to the disbursement. borrowers whose loans originally qualified for the rebate must make the first 12 monthly payments on time to retain the rebate benefit. the budget control act of 2011 eliminated the up-front interest rebate for federal direct stafford and plus loans first disbursed on or after july 1, 2012.”); see generally nat’l ass’n of student financial aid adm’rs, preliminary report of the nasfaa reauthorization task force to the membership, nasfaa 19-20 (2013). 92 see 34 c.f.r. § 685.200(b)-(c) (2014). 93 see 34 c.f.r. § 685.200(c)(1) (2014); see also 34 c.f.r. § 685.200(b)(5) (2014). 2014 columbia journal of race and law 143 liens, wage garnishments, and debt write-offs constitute an adverse credit history that may serve as the basis for denial of plus loan applicants.94 a definition of the “adverse credit” term should be included as part of title 34 to exclude consideration of primary residential real property indebtedness.95 currently, a deed in lieu of foreclosure or even a defaulted real property lease may preclude a student from obtaining a plus loan.96 the standard should be amended further than circumscribed under the discretionary “extenuating circumstances” evaluation to include mortgage loan delinquencies greater than 180 days,97 especially considering the housing crisis that americans are still emerging from.98 rehabilitated debtors would also be subject to plus loan denial under the present “adverse credit” standard.99 such penalty on borrowers who could improve their economic outlook and advance the probability of debt repayment by obtaining a college degree or pursuing job retraining defeats the purpose of federal financial aid.100 the situation of borrower indebtedness and the moral hazard argument with student loans101 may be addressed by enacting proactive debt counseling and relevant financial literacy education for atrisk debtors.102 in addition, the meaning of the “adverse credit” term could be revised by shortening the 94 34 c.f.r. § 685.200(c)(1) (2014). 95 see generally 34 c.f.r. § 77.1 (2014); 34 c.f.r. § 682.200 (2014); 20 u.s.c. §§ 1001 – 1003 (2012). 96 see 34 c.f.r. § 685.200(c)(1); see also mark kantrowitz, how does a pending foreclosure or short sale affect financial aid?, fastweb (jan. 28, 2013), http://www.fastweb.com/financial-aid/articles/3849-how-does-a-pendingforeclosure-or-short-sale-affect-financial-aid (“a deed in lieu of foreclosure is treated the same as a foreclosure, unless it was provided as part of a short sale.”). 97 see 20 u.s.c. § 1078 – 2(a)(3)(b) (2012) (permits but does not require discretion for mortgage loan delinquency up to 180 days). 98 see generally nat’l ass’n of student financial aid adm’rs, supra note 91 at 21-22. 99 id. 100 see generally 20 u.s.c. § 1070 (2012); nat’l direct student loan coal., reauthorization of the higher education act proposals for legislative change (2013), available at http://www.directstudentloan coalition.org/media/pdfs_autogen/reauth-comp_9-2013.pdf; nat’l consumer law ctr. student loan borrower assistance, higher education act (hea) reauthorization recommendations (2013), available at http://www.studentloanborrowerassistance.org/wp-content/uploads/2013/05/promoting-higher-ed-access-2013.pdf; bridget terry long & erin riley, financial aid: a broken bridge to college access?, harvard educ. rev., spring 2007, at 39. 101 see robert b. archibald, redesigning the financial aid system: why colleges and universities should switch roles with the federal government 126 (2002) (“the moral hazard in guaranteed student loans, however, cannot be reduced quite so easily. limiting the availability of loan guarantees to officially accredited providers and eliminating institutions, with poor default records, combined with threatening nonpaying students in various ways, does affect the loan repayment rate, but the fundamental problem remains.”); beth akers & matthew m. chingos, student loan safety nets: estimating the costs and benefits of incomebased repayment 18 (2014), available at http://www.brookings.edu/~/media/research/files/papers/2014/04 /14%20student%20safety%20nets/ibr_online.pdf (“a common worry about any insurance-like program is moral hazard, where the insured engage in more risky behavior because they don’t have to bear the full cost of their actions.”); see, e.g., josh mitchell, student loans entice borrowers more for cash than a degree, wall street journal (mar. 2, 2014), http://online.wsj.com/news/articles/sb10001424052702304585004579415022664472930; shaila dewan, moral hazard: a tempest-tossed idea, n.y. times (feb. 25, 2012), http://www.nytimes.com/2012/02/26/business/moral-hazard-asthe-flip-side-of-self-reliance.html?pagewanted=all&_r=0 (“moral hazard has long been used to explain why social safety nets like welfare, unemployment insurance and workers’ compensation should be less generous. it is almost always applied to the recipients, rather than the providers, of such benefits.”). 102 see generally nat’l ass’n for college admission counseling, higher education reauthorization: 2013 recommendations (2013), available at http://www.nacacnet.org/issues-action/legislative news/documents/heareauthorizationrecommendations.pdf; see, e.g., usa funds, supra note 78, at 19 (“some schools consider entrance counseling to be a continual process and provide information to students throughout their foreclosures and financial aid vol. 4:2 144 period of review to a time frame less than five years.103 further, the “satisfactory repayment arrangement” provided for ffel student loans could perhaps be extended to non-ffel plus loans.104 revision of the plus loan eligibility criteria as it pertains to the “adverse credit” consideration would more closely align student loan debt with other types of consumer debt.105 special consideration for students classified as first generation college students or low-income individuals, as provided by the hea, could be extrapolated to apply to the administration of plus loans in terms of creditor eligibility.106 b. an overview of the student loan industry the federal student aid program partially consists of loans in three broad categories: direct loans, perkins loans, and stafford loans.107 the william d. ford federal direct loan program issues parent plus loans to undergraduate families, and grad plus loans to students pursuing graduate or professional degrees.108 the plus loan program does not have a direct cap on the amount that may be borrowed, but the approved amount is based upon the cost of attendance at each particular institution, enrollment. ongoing communication about their loans enables students to make informed borrowing decisions and remain aware of their overall loan debt and the implications of that debt upon repayment.”). 103 see ass’n of public and land-grant universities, aplu comments on hea reauthorization for the house committee on education and the workforce 6 (aug. 2, 2013), available at, https:/www.aplu.org/document.doc?id=4696 (“the recent increase in denials of parent plus loans by the department of education came after a stricter interpretation of existing rules was applied to plus loan applicants, moving from a 90 day credit history to a consideration of a five year credit history of applicants. we hope the department consults with the broader community of institutions and parents before enacting such consequential changes in the future. the change had a substantial negative impact on the parents of lower-income students. we urge congress, working with affected stakeholders, to reexamine the existing evaluation criteria and seek a better methodology to judge applicants based on their current capacity for repayment.”); kantrowitz, supra note 96 (“plus loan borrowers must not have an adverse credit history, which is defined as a current delinquency of 90 or more days on any debt or a five-year look-back for certain derogatory events in the credit history. the derogatory events include bankruptcy, foreclosure, repossession, tax lien, wage garnishment or default determination . . . . a chapter 13 bankruptcy does not affect plus loan eligibility.”); see generally 20 u.s.c. § 1078–2(a)(3)(b)(i)–(ii) (2012) (including home mortgage arrearage as consideration of “extenuating circumstances”). 104 see generally 34 c.f.r. § 682.200 (2014) (denotes the voluntary and timely full payment for six consecutive months on a defaulted loan) (“the required full monthly payment amount may not be more than is reasonable and affordable based on the borrower’s total financial circumstances.”). 105 see senate bill introduced by senator elizabeth warren and endorsed by president barack obama in june 2014 to amend the hea to permit student loan refinancing for lower interest rates, http://www.warren.senate.gov /files/documents/bankonstudentsrefinancingbilltext.pdf; see also parent plus loans: frequently asked questions, u.s. news & world report (aug. 17, 2010), http:// www.usnews.com/education/best-colleges/paying-forcollege/student-loan/articles/2010/08/17/parent-plus-loans-frequently-asked-questions (“unlike credit card debt and mortgages, which can be canceled if you file for bankruptcy, education loans of all types must be paid. most bankruptcy courts will not cancel them unless your situation is extremely dire.”); see generally am. council on educ., supra note 28 at 13–14; kantrowitz, supra note 8. 106 see generally 20 u.s.c. § 1070a–11(h)(3)–(4) (2012); nat’l ass’n of student financial aid adm’rs, supra note 91 (“as more credit restrictions are imposed, more grant support needs to be created for schools serving underrepresented and disadvantaged populations and their students.”). 107 see u.s. dept. of educ., overview of federal student loans, federal student aid, http://studentaid.ed.gov/ types/loans (last visited feb. 22, 2014); student loan and private loan faqs, simple tuition, http://www.simple tuition.com/faq_full?type=it&subject=federal_student_loans_government-backed (last visited may 1, 2013) (provides a legislative update that subsidized stafford loans are no longer be available to graduate students as of july 1, 2012). 108 see u.s. dept. of educ., plus loans, federal student aid, http://studentaid.ed.gov/types/loans/plus (last visited feb. 22, 2014). 2014 columbia journal of race and law 145 minus any other financial aid.109 perkins and stafford loans are limited to specific amounts based on the level of educational attainment.110 ultimately, there is a cumulative limit on the amount of federal perkins and stafford student loans that a borrower may obtain, but there is no monetary limit on the lifetime amount of plus loans that a recipient may receive.111 a college financial aid package may include federal and private student loans.112 there are a number of differences between private and federal student loans.113 one main distinction is that the united states department of education is the lender for federal student loans, whereas a bank or financial institution is usually the lender for private student loans.114 also, federal student loans have fixed interest rates over the life of the loans while private student loans have variable interest rates that are typically higher than those offered by the federal student aid program.115 finally, federal student loans are generally subject to more favorable repayment options than private student loans, including deferment, forbearance, income-based repayment and income-sensitive repayment.116 109 see u.s. dept. of educ., supra note 107 (“federal student aid covers such expenses as tuition and fees, room and board, books and supplies, and transportation. aid also can help pay for other related expenses, such as a computer and dependent care.”); kim clark, graduate plus loan faqs, u.s. news & world report (mar. 16, 2011), http://www.usnews.com/education/best-graduate-schools/paying/articles/2011/03/16/graduate-plus-loan-faqs (“each year, you can borrow the full net, or out-of-pocket, cost of your graduate study. to calculate the maximum plus eligibility, take your program's annual cost of attendance—which includes tuition, fees, books, and living costs— and subtract out any financial aid such as tuition waivers, grants, or stafford loans.”). 110 see simple tuition, supra note 107 (the borrowing limits for the 2012–13 academic year are as follows: $5,500 for undergraduate perkins loans, $8,000 for graduate perkins loans, up to $7,500 for dependent undergraduate stafford loan students, up to $12,500 for independent undergraduate stafford loan students, and $20,500 for graduate dependent or independent stafford loan students). 111 see id. (the federal financial aid undergraduate cumulative limit is as follows: stafford dependent undergraduate students $31,000; stafford independent undergraduate students $57,500; perkins undergraduate students $27,500; the cumulative limit for undergraduate and graduate federal loans is as follows: stafford dependent and independent graduate students cumulative limit (undergraduate and graduate combined) $65,500; perkins loans $60,000; parent plus and grad plus: “up to the total cost of attendance, less aid received”). 112 see u.s. dept. of treasury & dept. of educ., the economics of education 26 (dec. 2012) available at http://www.treasury.gov/connect/blog/documents/20121212_economics%20of%20higher%20ed_vfinal.pdf. (“loans are the largest share of financial aid, followed by grants. . . .”) 113 see generally consumer fin. prot. bureau, what are the main differences between federal student loans and private student loans, consumer finance, http://www.consumerfinance.gov/askcfpb/545/what-are-main-differencesbetween-federal-student-loans-and-private-student-loans.html (last updated july 26, 2013). 114 see generally loan tradeoffs – public vs. private, finaid http://www.finaid.org/loans/loantradeoffs.phtml (last visited feb. 22, 2014). 115 see generally william s. howard, the student loan crisis and the race to princeton law school, 7 j.l. econ. & pol’y 485, 505 (2011) (explaining that federal student loans are offered at lower interest rates because they are backed by the full faith and credit of the united states). 116 see consumer fin. prot. bureau, consumer financial protection bureau report finds private student loan borrowers face roadblocks to repayment, consumer finance (oct. 16, 2012), http://www.consumerfinance.gov/pressreleases/ consumer-financial-protection-bureau-report-finds-private-student-loan-borrowers-face-roadblocks-to-repayment/; see generally eryk j. wachnik, the student debt crisis: the impact of the obama administration’s “pay as you earn” plan on millions of current & former students, 24 loy. consumer l. rev. 442 (2011–12). see generally meta brown, et al., measuring student debt and its performance 3 (2014), available at http://www.newyorkfed.org/research /staff_reports/sr668.pdf (“unfortunately, while the vast majority of student loan servicers report to credit bureaus, these data do not distinguish between private and federal loans.”). but see jonathan m. layman, forgiven but not forgotten: taxation of forgiven student loans under the income-based-repayment plan, 39 cap. u. l. rev. 131 (2011); u.s. dept. of educ., recent changes to the student aid programs, federal student aid, http://studentaid.ed.gov/about/ announcements/recent-changes (last visited feb. 23, 2014) (direct loan borrowers are no longer able to offer repayment incentives other than for automatic bank debit payments). but see borrower services, federal direct foreclosures and financial aid vol. 4:2 146 college and vocational school students should be encouraged to exhaust all possible federal student loan options before turning to private student loans.117 a more reasonable alternative to federal student loans may be obtaining private student loans from a non-profit private student loan lender.118 however, students and their families are increasingly steered towards federal plus loans to help finance their higher education.119 accordingly, financial aid packages have increasingly included federal plus loans to cover the cost of college attendance in recent years.120 c. the federal plus loan program federal plus loans are comprised of two forms: parent plus loans and grad plus loans.121 the federal plus loan program was historically limited to parents who funded undergraduate college expenses for dependents.122 as of july 1, 2006, the federal plus loan program was expanded to include graduate students pursuing advanced degrees under the grad plus loan program.123 the federal plus consolidation loans online calculator, https://loanconsolidation.ed.gov/loancalc/calculator/jsp/help.jsp (“as an incentive to use the eda [electronic debit account] repayment method, the direct loan program offers a quarter point (.25%) reduction in your interest rate for repayment periods. your interest rate reduction occurs automatically once your account is placed on eda this discount will not apply during an in-school status, grace, deferment, or forbearance period. the u.s. department of education may discontinue this discount at anytime without notice.”). 117 see u.s. dept. of educ., supra note 107; fed. trade comm’n & u.s. dept. of educ., student loans: avoiding deceptive offers (2012), http://www.consumer.ftc.gov/articles/pdf-0048-student-loans.pdf; michelle singletary, students wisely turn from private loans, washington post (oct. 25, 2009), http://www.washingtonpost.com/wpdyn/content/article/2009/10/23/ar2009102304322.html. 118 see consumer fin. prot. bureau, private student loans 4 (aug. 29, 2012), http://files.consumer finance.gov/f/201207_cfpb_reports_private-student-loans.pdf (reporting on alternative non-profit and state-affiliated private student loan lenders). 119 see wang, supra note 15; marian wang, families shoulder heftier burdens as college debt swells, propublica (jan. 3, 2013), http://www.propublica.org/article/families-shoulder-heftier-burdens-as-college-debt-swells; kantrowitz, supra note 8 at 10-11; equal justice works, borrowing for college costs can burden parents, u.s. news & world report (dec. 26, 2012), http://www.usnews.com/education/blogs/student-loan-ranger/2012/12/26/borrowing-for-collegecosts-can-burden-parents. 120 see marian wang, how financial aid letters often leave students confused and misinformed, propublica (oct. 16, 2012), http://www.propublica.org/article/how-financial-aid-letters-often-leave-students-confused-and-misinformed; nelson, supra note 8. 121 see u.s. dept. of educ., supra note 107. 122 see id.; see generally lance lochner & alexander monge-naranjo, education and default incentives with government student loan programs 5 (nat’l bureau of econ. research, working paper, 2004). 123 see deficit reduction act of 2005, pub. l. no. 109-171, 120 stat. 4 (2006) (amending the hea, section 428b, to open the plus loan program to graduate and professional students); see generally edfinancial services, federal gradplus loans, edfinancial services http://www.edfinancial.com/topics/financialaid (last visited feb. 24, 2014); see, e.g., memorandum from columbus school of law, catholic university of america, http:// www.law.edu/finaid/loanplus.cfm (“congress passed legislation in 2006 with changes regarding financial aid. the two major changes which effect graduate/law students are (1) a fixed interest rate for the federal stafford loan and (2) a new fixed interest rate loan called the grad plus loan.”); memorandum from lewis & clark, financial aid: federal direct plus loan for grad & law students, https://www.lclark.edu/offices/financial_aid/loans/direct_plus_grad (“beginning on july 1st, 2006 graduate and law students may borrow under the federal direct plus loan program. lewis & clark graduate and law students may choose either a federal direct plus loan or a private loan to cover educational costs after they have exhausted their federal direct loan eligibility.”); see generally u.s. dept. of ed., questions and answers about direct plus loans for graduate and professional students, http://www.law.edu/res/docs/grad-plusloan-q-a.pdf. 2014 columbia journal of race and law 147 loan program was formerly administered by two separate agencies: the direct loan program and the federal family education loan (“ffel”) program.124 previously, the direct plus program was serviced by the u.s. department of education, and the ffel plus program was serviced by private entities.125 as of july 1, 2010, the obama administration consolidated the ffel plus loan program,126 and all new plus loans are disbursed under the direct plus loan program.127 however, previously disbursed ffel plus loans will continue to be serviced under the ffel plus loan program.128 consequently, the direct plus program offered more favorable terms and lower rates than the ffel plus program.129 under the previous financial aid structure, eligible plus loan students and their families could not choose between the direct plus or ffel plus programs.130 rather, the 124 see u.s. dept. of educ., supra note 107; barack obama, remarks by the president on higher education, whitehouse (apr. 24, 2009), http://www.whitehouse.gov/the_press_office/remarks-by-the-president-on-highereducation/; see generally health care and education reconciliation act of 2010 (title ii), pub. l. no. 111–152, 124 stat. 1029 (2010); lochner, supra note 122 at 5. 125 see health care and education reconciliation act of 2010 (title ii), pub. l. no. 111 – 152; see generally kim clark, big changes coming to student loans, u.s. news & world report (mar. 24, 2010), http://www.usnews.com/ education/articles/2010/03/24/big-changes-coming-to-student-loans; nick anderson, what would change if student lending legislation passes, washington post (mar. 26, 2010), http://www.washingtonpost.com/wp-dyn/content/ article/2010/03/25/ar2010032503578.html; lochner, supra note 122. 126 see health care and education reconciliation act of 2010§§ 2201–05; student aid and fiscal responsibility act of 2009, h.r. 3221, 111th cong. (2009); tamar lewin, house passes bill to expand college aid, n.y. times (sept. 17, 2009), http://www.nytimes.com/2009/09/18/education/18educ.html. 127 see health care and education reconciliation act of 2010§§ 2201 – 05 (ending the ffel program for new plus loans as of july 1, 2010, while maintaining ffel plus loan terms including an increased interest rate on existing loans). 128 see daniel a. austin, the indentured generation: bankruptcy and student loan debt, 53 santa clara l. rev. 329, 340 (2013) (“loans are now made directly to students through the u.s. department of education, ending the ffelp program. for loans made before 2010, lenders receive the higher of the special allowance rate or the student interest rate set by the government for new student loans. if the student rate is lower than the special allowance rate, the government makes up the difference. in the event that the student rate is higher, the lender pays the difference to the government.”) (citations omitted). 129 see cong. budget office, letter to the honorable judd gregg, cong. budget office (mar. 15, 2010), http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/113xx/doc11343/03-15-student_loan_letter.pdf (estimating a savings of $68.7 billion over ten years by eliminating the ffel program); see generally new america foundation, federal student loan programs–history, new america foundation (mar. 28, 2012), http://febp.newamerica.net/backgroundanalysis/federal-student-loan-programs-history; chuck marr & gillian brunet, student loan reform in health bill would save more than $60 billion and invest in access to college, ctr on budget and policy priorities (mar. 19, 2010), http://www.cbpp.org/files/3-19-10health2.pdf. but see finaid, direct loans vs. ffel program, finaid, http:// www.finaid.org/loans/dl-vs-ffel.phtml, (last visited may 1, 2013) (“[a]bout two-thirds of the ffel program loan volume in 2008-09 was funded through the ensuring continued access to student loans act of 2008 and has been or will be sold to the us department of education. this is in contrast with the direct loan program, where federal education loans are held by the us department of education for the life of the loan and are not sold. . . . [i]n the college cost reduction and access act of 2007, when combined with the savings from the ensuring continued access to student loans act of 2008 (ecasla), caused the ffel program to cost less than the direct loan program in fy 2008 on a per-dollar-lent basis. . . .”). 130 see generally jennifer liberto, trying to flunk banks out of college, cnn (mar. 12, 2010), http:// money.cnn.com/2010/03/11/news/economy/student_loans/; dave roos, how plus loans work, how stuff works (mar. 31, 2010), http://money.howstuffworks.com/personal-finance/college-planning/financial-aid/plus foreclosures and financial aid vol. 4:2 148 eligible educational institution determined which plus program it would enroll in, thereby precluding students from negotiating better terms and rates for their federal plus loans.131 such a practice adversely affected student loan prospects.132 d. the housing crisis and ensuing credit crunch for plus loans the great recession prompted an economic downturn that officially spanned from 2007 to 2009, and left household wealth to spiral several years thereafter.133 the resulting financial instability was caused in part by a downturn in the housing market spurred by the default of mortgage-backed securities.134 during the turbulent years of the great recession, the home mortgage crisis permeated the financial market to cripple some of the largest financial institutions in our nation, including lehman brothers, bear sterns, and aig.135 large financial institutions with a concentration in real estate assets contributed to an unprecedented number of bank failures and closures.136 loans3.htm; abigail field, how the banks’ student loan gravy train finally got halted, daily finance (mar. 30, 2010), http://www.dailyfinance.com/2010/03/30/how-the-banks-student-loan-gravy-train-finally-got-halted/. 131 see generally liberto, supra note 130; roos, supra note 130; field, supra note 130. 132 see generally william d. ford federal direct loan program, colleges.com, http://www.colleges.com/financial aid/direct_stafford_programs.html (last visited feb. 24, 2014) (noting that schools could not participate in both the direct loan and family education loan program, but rather could only participate in one or the other); field, supra note 130; equal justice works, learn what obama’s student loan plan means for you, u.s. news and world report(nov. 9, 2011), http://www.usnews.com/education/blogs/student-loan-ranger/2011/11/09/learn-what-obamas-student-loanplan-means-for-you. 133 see, from free-fall to stagnation: five years after the start of the great recession, extraordinary policy measures are still needed, but are not forthcoming (economic policy institute, briefing paper # 355, feb. 14, 2013) at 6 (“essentially, the burst of the housing bubble erased trillions of dollars of wealth from household balance sheets . . . . the pullback in consumer spending (households spent less because they were much less wealthy) . . . then cascaded throughout the rest of the economy.”); see also jeffry a. frieden, foreseeable and preventable, n.y. times, jan. 30, 2011, http://www.nytimes. com/roomfordebate/2011/01/30/was-the-financial-crisis-avoidable/the-financial-crisis-was-foreseeable-andpreventable (“many things contributed to the great recession of 2007-2010. massive foreign borrowing, excessively loose monetary policy, reckless lending practices, lax regulation, and other factors all fed into the crisis.”); center on budget and policy priorities, chart book: the legacy of the great recession, http://www.cbpp.org/cms/index.cfm?fa=view&id=3252 (“although employers began to add jobs in 2010, the economy has recovered just over 7.8 million of the 8.7 million jobs lost between the start of the recession in december 2007 and early 2010.”). 134 see generally lee e. ohanian, accounting for the great recession: why and how did the 2007– 09 u.s. recession differ from all others? (2011); dale arthur oesterle, the collapse of fannie mae and freddie mac: victims or villains, 5 entrepreneurial bus. l. j. 733, 734 (2010) (“fannie and freddie had heavy involvement with the creation and funding of residential mortgages and one of the primary mortgage derivatives, the mortgage-backed security (mbs). so fannie and freddie are deeply in play in the various theories on the cause of the current recession.”); kantrowitz, supra note 8 at 5-10 (noting that the collapse of the securitized subprime mortgage market decreased investor confidence in student loan securitizations that funded a significant portion of the student loan industry resulting in lower profits and higher interest rates); see also anne johnson & tobin van ostern, it’s our interest: the need to reduce student loan interest rates, ctr for american progress (feb. 13, 2013), http://www.americanprogress.org /issues/higher-education/report/2013/02/13/53061/its-our-interest-the-need-to-reduce-student-loan-interest-rates/ (“in november 2008 the federal reserve announced the creation of the term asset-backed securities loan facility under the federal reserve act. the program was intended to improve economic and market conditions by purchasing asset-backed securities. originally, there were four categories of asset-backed securities that qualified, one being student loans. the program was closed on march 31, 2010, and all loans that the program extended will expire no later than march 30, 2015.”) (citations omitted). 135 see generally grusky, supra note 4 at 5. 136 see, e.g., countrywide financial corporation, n.y. times, http://topics.nytimes.com/top/news/business/ companies/countrywide_financial_corporation/index.html (last updated jan. 31, 2014); see also boston bus. journal, bank of america’s acquisition of countrywide financial the worst deal ever, masslive (jan. 14, 2013), http://www.masslive. 2014 columbia journal of race and law 149 as financial institutions began to fold, the american public bore the brunt of the financial collapse.137 with falling home prices, many homes were “underwater,” meaning homeowners owed more on their mortgages than what their homes were actually worth.138 the decrease in home equity equaled a drastic decrease in wealth for millions of americans, particularly for minorities, whose homes were often their greatest asset.139 the dramatic decrease in household wealth translated to a decrease in confidence in the u.s. economy, domestically and abroad, triggering a global economic crisis.140 bank bailouts and a credit crunch ensued as the economy stabilized with the help of low interest rates and caps on inflation.141 the contraction of the united states economy had a ripple effect that increased the unemployment rate.142 increased unemployment contributed to less spending for the average family that com/business-news/index.ssf/2013/01/editorial_bank_of_america_and_the_worst.html (reporting on the recent $11.6 billion settlement with fannie mae for mortgages made pursuant to the housing crisis to in part buy back toxic loans); jeff blumenthal, bank failures easing, but still more frequent than before crisis, philadelphia bus. journal, (jan. 2, 2013), http://www.bizjournals.com/philadelphia/news/2013/01/02/bank-failures-easing-but-still-more.html?page=all (“according to data from the federal deposit insurance corp., there were 50 bank failures nationwide in 2012, down from 92 in 2011, 157 in 2010 and 140 in 2009. there were only 52 total failures combined in the eight years prior, with 25 of those coming as the recession began in earnest in late 2008.”); associated press, ga. bank failure brings 2012 total to 50, associated press (nov. 16, 2012), http://www.bigstory.ap.org/article/ga-bank-failure-brings-2012-total-50 (reporting that bank failures peaked in 2010 with the highest number of closures since the savings and loans crisis approximately 20 years ago). 137 see generally julia c. ott, when wall street met main street (2011) (documenting wall street’s connection to the economic health of the country and its citizens); rodney ramcharan, et al., from wall street to main street: the impact of the financial crisis on consumer credit supply (fed. reserve bd., working paper no. 2013-10, 2012); anthony reyes, reforming wall street, protecting main street: an update on wall street reform, u.s. dept. of treasury (july 18, 2012), http://www.treasury.gov/connect/blog/documents/20120719_dfa_final5.pdf. 138 see alejandro lazo, fewer americans are stuck in underwater mortgages, l.a. times (feb. 22, 2013), http://articles.latimes.com/2013/feb/22/business/la-fi-mo-underwater-loans-20130222 (underwater home mortgages, or mortgages owing more than what the property is worth, totaled more than $1 trillion in 2012); les christie, half of mortgage borrowers under 40 are underwater, cnn (aug. 23, 2012), http://money.cnn.com/2012/08/23/real_estate/ underwater-mortgage-borrowers/index.html. 139 see paul taylor, et al., wealth gaps rise to record highs between whites, blacks and hispanics, pew research center (july 26, 2011), http://www.pewsocialtrends.org/2011/07/26/wealth-gaps-rise-to-record-highs-betweenwhites-blacks-hispanics/ (“[a]nalysis finds that, in percentage terms, the bursting of the housing market bubble in 2006 and the recession that followed from late 2007 to mid-2009 took a far greater toll on the wealth of minorities than whites.”); tami luhby, worsening wealth inequality by race, cnn (june 21, 2012), http://money.cnn.com/2012/06/21/ news/economy/wealth-gap-race/index.htm; jeff kearns, fed says u.s. wealth fell 38.8% in 2007–2010 on housing, bloomberg (june 12, 2012), http://www.bloomberg.com/news/2012-06-11/fed-says-family-wealth-plunged-38-8-in2007-2010-on-home-values.html; eric pianin, how the housing crisis shafted the next generation, the fiscal times (may 22, 2012), http://www.thefiscaltimes.com/articles/2012/05/22/how-the-housing-crisis-shafted-the-next generation .aspx#page1; see generally thomas m. shapiro, race, homeownership and wealth, 20 j.l. & pol’y 53, 65 (2006) (stating that homeownership is a large asset for american families in building wealth). 140 see generally stijn claessens, et al., what happens during recession, crunches, and busts?, 60 econ. pol’y 653 (2009); susan fenton, u.s. consumer confidence now lower than at height of global recession, huffington post (july 17, 2011), http://www.huffingtonpost.com/2011/07/17/consumer-confidence-global-recession_n_901015.html. 141 see generally phil izzo, secondary sources: bailout concerns, credit crunch, inflation targeting, wall street journal (sept. 24, 2008), http://blogs.wsj.com/economics/2008/09/24/secondary-sources-bailout-concerns-creditcrunch-inflation-targeting/. 142 see generally econport, types of unemployment, econport, http://www.econport.org/content/handbook/ unemployment/types.html (last visited feb. 24, 2014); ronald kimmons, how business cycles affect unemployment, houston chronicle, http://smallbusiness.chron.com/business-cycles-affect-unemployment-21368.html (last visited feb. 24, 2014). foreclosures and financial aid vol. 4:2 150 further contracted the job market.143 the decline in wages and job layoffs prompted americans to either enroll in college or vocational school to acquire additional skills to keep pace with the changing job market.144 the resulting recession forced prospective students to engage in a cost benefit analysis of whether to attend college.145 public colleges and universities experienced an increase in enrollment as employment prospects dwindled.146 however, private colleges, universities, and professional schools with higher tuition experienced a sharp decline in enrollment.147 the bleak economic outlook triggered the growing concern that the cost of a college education effectively outpaced the rate of inflation.148 the average financial aid award today does not adequately cover college expenses.149 accordingly, there must be an integrated approach to provide sufficient funding for higher education and to lower the cost of college attendance.150 such movement may alleviate the tension between the need for an educated workforce and the difficulty of paying for it.151 the housing crisis affected how families with college students finance higher education.152 home equity loans and lines of credit have decreased in use as alternatives to student loan financing.153 further, the housing market fallout resulted in a number of foreclosures, short sales, and deeds in lieu of foreclosure that established an adverse credit history for federal plus loan program applicants.154 the 143 see john w. schoen, lack of job growth holds economy in cycle of weakness, nbc news (aug. 4, 2012), http://economywatch.nbcnews.com/_news/2012/08/04/13107880-lack-of-job-growth-holds-economy-in-cycle-ofweakness?lite. 144 see paul taylor, et al., college enrollment hits all-time high fueled by community college surge1 (2009); see generally howard, supra note 115 at 488. 145 see generally michael c. macchiarola & arun abraham, options for student borrowers: a derivatives-based proposal to protect students and control debt-fueled inflation in the higher education market, 20 cornell j.l. & pub. pol'y 67 (2010). 146 see lisa barrow & jonathan davis, the upside of down: postsecondary enrollment in the great recession, 36 econ. persps. 117 (2012); see generally eric hoover, recession reshaped college enrollment, but the sky didn’t fall, chronicle of higher education (july 14, 2011), https://chronicle.com/article/recession-reshaped-college/128223/; beckie supiano, the economy and college admissions, chronicle of higher education (oct. 20, 2010, 5:01 pm), http://chronicle.com/blogs/headcount/the-changing-state-of-college-admissions/27569. 147 see generally michael a. olivas, paying for a law degree: trends in student borrowing and the ability to repay debt, 49 j. legal educ. 333 (1999); institute for higher education policy, et al., student loan debt: problems & prospects at xiv-xv (finding that students who attend professional schools such as law school are accumulating high student loan debt). 148 see generally howard, supra note 115 at 496–497; institute for higher education policy, et al., supra note 147 at, xiv (stating that low-income students, especially single parents, experience difficulty in paying for college as the cost of attendance exceeds the amount of available grants, thereby requiring larger student loan debt to enroll). 149 see generally institute for higher education policy, et al., supra note 147 at xiv, 106–108 (noting that students are increasingly relying on credit cards to pay for college in supplementing insufficient student loans). 150 see mark huelsman & alisa f. cunningham, making sense of the system: financial aid reform for the 21st century student 8 (2013). 151 see white house, fact sheet: president obama’s blueprint for keeping college affordable and within reach for all americans (jan. 27, 2012), http://www.whitehouse.gov/the-press-office/2012/01/27/fact-sheet-president-obama-sblueprint-keeping-college-affordable-and-wi; see generally d. bruce johnstone, higher education accessibility and financial viability: the role of student loans (2005). 152 see bob tedeschi, college tuition not on the house, n.y. times (apr, 3, 2009), http://www.nytimes.com/ 2009/04/05/realestate/05mort.html?_r=0. 153 see marian wang, et al., supra note 15; michael f. lovenheim, the effect of liquid housing wealth on college enrollment, 29 j. lab. econs. 741 (2011); tedeschi, supra note 152. 154 see kantrowitz, supra note 8 at 1-2; kantrowitz, supra note 96; leigh thompson, does foreclosure affect my financial aid?, sfgate, http://homeguides.sfgate.com/foreclosure-affect-financial-aid-49801.html (last visited feb. 24, 2014). 2014 columbia journal of race and law 151 financial crisis also led to an increase in bankruptcies that prevented applicants from obtaining private student loans or precluded parents and graduate students from obtaining federal plus loans.155 with the financial fallout and the resulting student loan defaults,156 plus loans are now more narrowly tailored and reserved for those with exemplary credit.157 financial aid packages that once included plus loans now tend to exclude them if borrowers do not meet rigid credit standards.158 consequently, a number of educational borrowers must pursue other means to make ends meet in paying for college.159 after exhausting federal financial aid, private loans may constitute the only option for college financing.160 the plus loan program technically offers a federal alternative to private student loans.161 however, the high bar for those seeking to obtain a federal plus loan essentially undermines the increased college access offered by the federal government through the student aid program.162 iii. contemporary issues in the federal plus loan program a. the creditworthiness requirement for plus loans the plus loan program requires a credit check to determine whether the borrower has an adverse credit history.163 the federal perkins and stafford loan programs do not require a credit check, 155see generally ylan q. mui, study: college graduates driving increase in bankruptcy filings, washington post (sept. 12, 2011), http://www.washingtonpost.com/business/economy/study-college-graduates-driving-increase-inbankuptcy-filings/2011/09/12/giqamemtnk_story.html (“according to government data, bankruptcies spiked in the years following the financial crisis, peaking at 1.5 million in 2010.”); mark kantrowitz, borrowers with a recent bankruptcy are ineligible for the federal plus loan, fastweb (feb. 16, 2012), http://www.fastweb.com/financial-aid/articles/3451borrowers-with-a-recent-bankruptcy-are-ineligible-for-the-federal-plus-loan (a bankruptcy within the last five years will preclude a plus loan applicant from obtaining the loan without an endorser due to an adverse credit history); kyle olson, how the recession impacts education in america, total bankruptcy, http://www.totalbankruptcy.com/news/ articles/miscellaneous/recession-bankruptcy-college.aspx (last visited feb. 24, 2014). 156 see press release, u.s. dept. of ed., default rates continue to rise for federal student loans (sept. 30, 2013), available at http://www.ed.gov/news/press-releases/default-rates-continue-rise-federal-student-loans; liz weston, confusing data flummoxes fixing of student-loan arrears, reuters, june 2, 2014, available at http://www.reuters.com /article/2014/06/02/us-column-weston-iduskbn0ed1gw20140602 (“a languid economy, soaring education debt and ignorance about available repayment options lead many borrowers to fall behind on their student loan payments, financial aid experts say.”); see generally federal education budget project, federal student loan default rates, new america foundation (may 1, 2014, 10:17 pm), http://febp.newamerica.net/background-analysis/federal-studentloan-default-rates (“in fiscal year 2014, students borrowed approximately $100 billion through federal loan programs . . . . by law, the u.s. department of education considers a borrower to be in default when he fails to make on-time repayment of his loans for nine consecutive months.”). 157 see nelson, supra note 8; see generally alisa f. cunningham & gregory s. kienzl, delinquency: the untold story of student loan borrowing (2011). 158 see id. 159 see id. 160 see generally katy hopkins, consider when to use private student loans, u.s. news and world report (oct. 1, 2012), http://www.usnews.com/education/best-colleges/paying-for-college/articles/2012/10/01/consider-when-touse-private-student-loans. 161 see finaid, direct loans vs. the ffel program, finaid, http://www.finaid.org/loans/dl-vs-ffel.phtml (last visited feb. 24, 2014). 162 see nelson, supra note 8; u.s. dept. of treasury & dept. of educ., the economics of higher education (dec. 2012), http://www.treasury.gov/connect/blog/documents/20121212_economics%20of%20higher%20ed_vfinal. pdf. 163 see higher education act of 1965 § 428b(a)(1)(a), 20 u.s.c. § 1078-2 (2012); 34 c.f.r. §§ 682.201(c)(2)(ii), 685.200(c)(1)(vii)(b) (2013). foreclosures and financial aid vol. 4:2 152 but they do require a finding of demonstrated financial need.164 dependent students have their financial need assessed by the financial history of the family as reported on the free application for federal student aid (“fafsa”).165 previously, parent plus loan applicants were not required to file the fafsa because the aid was not based on family financial need.166 however, the fafsa is now required of all plus loan applicants.167 a plus loan denial relegates students to pursue additional aid from the unsubsidized stafford loan program.168 the federal plus loan program conducts a credit check to determine whether any factors exist to constitute an adverse credit history.169 examples of the factors used to determine whether a plus loan applicant has an adverse credit history include: charged off accounts, accounts in collection, delinquent accounts that are 90 to 180 days late, wage garnishments, repossessions, voluntary surrenders of property, defaulted loans, foreclosures, deeds in lieu of foreclosure, bankruptcies, and tax liens.170 164 see u.s. dept. of educ., your federal student loans: learn the basics and manage your debt 9 (dec. 2010); finaid, student loans, finaid, http://www.finaid.org/loans/studentloan.phtml (last visited feb. 24, 2014); finaid, credit scores, finaid, http://www.finaid.org/loans/creditscores.phtml (last visited feb. 24, 2014). 165 see u.s. dept. of educ., am i dependent or independent? (2013); u.s. dept. of educ., applying for federal direct loans, federal student aid, http://www.direct.ed.gov/applying.html (last updated jan. 3, 2014). 166 see finaid, parent loans, finaid, http://www.finaid.org/loans/parentloan.phtml (last visited feb. 25, 2014) (“parents who are applying for a parent plus loan are, strictly speaking, not required to have the student file a fafsa. however, it is generally advisable to do so in order to avoid missing out on other federal student aid. but if they wish to apply for a parent plus loan without submitting a fafsa, they will need to submit a loan application and sign a master promissory note. starting in 2011-2012, the fafsa will be required for the parent plus loan.); plus loan frequently asked questions, parent plus loan, http://www.parentplusloan.com/plus-loans/frequently-asked-questions-aboutthe-plus-loan.php (last visited feb. 25, 2014) (“[t]he fafsa is not required at all schools, but it is strongly recommended. the plus loan is a federal student loan and therefore must be ‘certified’ (approved) by the college's or university's financial aid office. if your college or university requires the fafsa for all students, they will not certify a plus loan without a fafsa application on file. check with your school's financial aid office on their policy.”); in order to get a stafford loan or a parent plus loan, do i need to fill out a fafsa?, fafsa online, http://www.fafsa online.com/fafsa-questions/do-i-need-to-fill-out-a-fafsa.php (last visited feb. 25, 2014). 167 see u.s. dept. of educ., supra note 108 (“in order to receive a direct plus loan, you (or your child, in the case of parent borrowers) must complete the free application for federal student aid (fafsa). the school's financial aid office will provide instructions about their process for requesting a direct plus loan.”); see generally plus loan frequently asked questions, student loan network, http://www.studentloannetwork.com/federal-student-loans/plus-loanfaq.php (last visited feb. 25, 2014). 168 see 34 c.f.r. §§ 682.201(a)(3), 685.203(c)(1) (2013); u.s. dept. of educ., guidance on participation in the william d. ford federal direct loan (direct loan) program (2011), available at http://www.ifap.ed.gov/dpcletters/gen1107.html; see generally u.s. dept. of ed., supra note 108 (“if a parent borrower is unable to secure a plus loan, the undergraduate dependent student may be eligible for additional unsubsidized loans to help pay for his or her education. the dependent student should contact the school’s financial aid office for more information”); finaid, additional unsubsidized stafford loan, finaid, http://www.finaid.org/educators/pj/additional stafford.phtml (last visited feb 25 2014). 169 see generally marian wang, et. al, supra note 15 (“of course, parent plus [loans] can be an important financial lifeline—especially for those who can’t qualify for loans in the private market. an iffy credit score, high debtto-income ratio, or lack of a credit history won’t necessarily disqualify anyone for a plus loan.”). 170 see 34 cfr 685.200(c)(1)(vii)(b); u.s. dept. of ed., questions and answers about direct plus loans for graduate and professional students, http://www.ifap.ed.gov/dlbulletins/attachments/dlb0703attach.pdf; mark kantrowitz, how to qualify for a plus loan despite an adverse credit history, april 15, 2013, http://www.fastweb.com/financial-aid/articles/3926-how-to-qualify-for-a-plus-loan-despite-an-adverse-credit-history (“per the regulations at 34 c.f.r. §668.32(g)(1), a student who is in default on a federal student loan — such as a federal perkins, federal stafford or federal plus loan — is ineligible for any federal student aid. (a federal parent plus loan borrower must likewise not be in default on a federal education loan.) . . . [an adverse credit history] also includes the write-off of federal education loan debt.”); marian wang, parent plus loan: how the government is saddling parents with loans they can’t afford, chronicle of higher education, 2012 (plus loan applicants are now also being denied if 2014 columbia journal of race and law 153 if a plus loan is denied for adverse credit reasons, then the applicant may appeal to the federal government or add a creditworthy endorser for reconsideration.171 the obama administration, through the department of education, recently revised the plus loan appeals process as a result of public outcry regarding credit eligibility changes.172 accordingly, reconsideration of a plus loan denial may be undertaken under the revised evaluation process.173 however, concerns regarding the availability of federal financial aid and its impact on student enrollment continue.174 issues concerning the credit check requirement for plus loans may be resolved by the renewal of the hea.175 the federal plus loan program does not deny loans on the basis of a credit score, although credit is taken into consideration.176 denied federal plus loan applicants may demonstrate extenuating circumstances to bypass the adverse credit history prohibition to receive the loan.177 extenuating circumstances must be documented in detail, and plus loan applicants will only qualify for approval if they provide proof that they have repaired their credit or rehabilitated their financial situation.178 the extenuating circumstances exception is not available to endorsers or co-signers of plus loans.179 the loss of a job, or harsh economic situations, with the exception of major medical issues, will not qualify as extenuating circumstances for federal plus loan purposes.180 furthermore, there are limits on who can serve as a cosigner for federal plus loans, and the loans are only available to graduate students pursuing select advanced degrees, or to the natural or adoptive parents of undergraduate students.181 stepparents may apply for a federal plus loan for their they have unsatisfied debts that were referred to a collection agency or were charged off as bad debt over the previous five years possibly resulting in a sizeable increase of denials); u.s. dept. of ed., documenting extenuating circumstances, https://studentloans.gov/mydirectloan/whatyouneed.action?page=credit 171 see u.s. dept. of ed., federal student aid – parents, http://www.direct.ed.gov/parent.html; see generally mark kantrowitz, part 1: answers to your questions on scholarships and student loans, n.y. times, nov. 14, 2011; finaid, credit scores, http://www.finaid.org/loans/creditscores.phtml. 172 see dianne hayes, obama administration plans changes to parent plus loans, diverse issues in education (aug. 15, 2013), http://diverseeducation.com/article/55297/ (“in response to outcries from congressional leaders, organizations, parents and students, the u.s. department of education plans to make changes to the plus loan programs to address the growing crisis in higher education that has blocked as many as 400,000 students nationwide from enrolling in college . . . . under pressure from groups such as the congressional black caucus, nafeo, uncf, the thurgood marshall college fund (tmcf), and frustrated parents and students, the u.s. department of education now says families that have recent but small-scale debt may now become eligible for plus loans through appeals.”). 173 id. (“under the newly announced change, parents whose loan applications are denied may ask for reconsideration under the new policy. the education department said students whose parents are denied plus loans automatically become eligible for an extra $4,000 in loans that are more flexible and carry lower interest rates.”). 174 id. (“[public interest organizations] have been working on a set of recommendations to send to congress to improve financial aid, including the parent plus loan and pell grants. the higher education organizations are also requesting a guidance document from u.s. secretary of education arne duncan.”); see deanne loonin, the problem with parent plus loans, student loan borrower assistance (sept. 19, 2013), http://www. studentloanborrowerassistance.org /problem-parent-plus-loans/. 175 see generally id. 176 see generally wang, supra note 15. 177 see u.s. dept. of educ., federal student aid – parents, federal student aid, http://www.direct.ed.gov/ parent.html; u.s. dept. of ed., documenting extenuating circumstances, federal student aid, https://studentloans.gov/ mydirectloan/whatyouneed.action?page=credit. 178 u.s. dept. of ed., documenting extenuating circumstances, supra note 177. 179 see id. 180 see id. 181 see u.s. dept. of educ., federal student aid – parents, federal student aid, http://www.direct.ed.gov/ parent.html; see generally u.s. dept. of educ., federal direct plus loan endorser agreement, federal student aid, https://studentloans.gov/mydirectloan/whattoexpect.action?page=endorser; u.s. dept. of educ., parent loans, federal student aid, http://www.finaid.org/loans/parentloan.phtml (“if the student's parents are divorced, both foreclosures and financial aid vol. 4:2 154 stepchildren under limited circumstances.182 legal guardians and relatives may not obtain a federal plus loan for the benefit of a student, even if the guardians or extended relatives care and provide for the student.183 accordingly, financial support in the form of a federal plus loan may only come from a student’s nuclear family without regard to extended family or other creditworthy adults who may be a part of a student’s support system.184 also, only natural parents who are united states citizens or certain classes of legal noncitizens are directly eligible for federal plus loans.185 these restrictions generally do not take into account the values and traditions of the non-traditional family that may include extended family members and immigrants.186 unlike the perkins and subsidized stafford loans, the plus loan does not require a showing of financial need.187 rather, all that is generally required to obtain a federal plus loan is an application for approval and the execution of a master promissory note.188 as long as the funds will be used either directly or indirectly to cover the cost of college attendance, which may even include transportation and child care costs, the plus loan is available to college students and their families.189 the custodial parent and the noncustodial parent are eligible to borrow from the plus loan program, provided that the combined amounts borrowed do not exceed the cost-of-attendance minus aid received cap.”). 182 see 34 c.f.r. § 682.201(c)(3) (2013); see also u.s. dept. of educ., federal student aid – parents, federal student aid, http://www.direct.ed.gov/parent.html (“you must be the student's biological or adoptive parent or the student's stepparent, if the biological or adoptive parent has remarried at the time of application.”); u.s. dept. of educ., parent loans, federal student aid, http://www.finaid.org/loans/parentloan.phtml (“a stepparent who has not adopted the student can only borrow from the plus loan program for as long as he or she is married to the custodial parent (i.e., the stepparent's income and assets would be considered when calculating the dependent student's expected family contribution). a stepparent who is married to the dependent student's non-custodial parent is not eligible to borrow from the plus loan program.”). 183 see 34 c.f.r. § 682.201(c)(3); 34 c.f.r. § 668.2; u.s. dept. of educ., parent loans, federal student aid, http://www.finaid.org/loans/parentloan.phtml (“legal guardians are not eligible to borrow from the plus loan program, nor are aunts, uncles and grandparents.”); college loan consultant, parent college loans...private school or community college?, http://www.collegeloanconsultant.com/parent-college-loans.html. 184 see generally 34 c.f.r. § 668.2 (2013). 185 see u.s. dept. of educ., plus loans, federal student aid, http://studentaid.ed.gov/types/loans/plus #am-i-eligible-for; u.s. dept. of educ., who gets aid, federal student aid, http://studentaid.ed.gov/eligibility (“generally, if you have a ‘green card’ (in other words, if you are a permanent resident alien), you will be considered an ‘eligible noncitizen’ and will be able to get federal student aid if you meet the other basic eligibility criteria.”); u.s. dept. of educ., non-u.s. citizens, federal student aid, http://studentaid.ed.gov/eligibility/non-us-citizens. 186 see generally u.s. dept. of educ., who gets aid, federal student aid, http://studentaid.ed.gov/eligibility; mark kantrowitz, part 2: answers to readers’ questions on financial aid, n.y. times, jan. 12, 2011, http://thechoice.blogs. nytimes.com/2011/01/12/fafsaq-and-a-part-2/; mark kantrowitz, part 5: answers on the fafsa, the free application for federal student aid, n.y. times, jan. 13, 2012, http://thechoice.blogs.nytimes.com/2012/01/13/kantrowitz-answerspart-5/; paul taylor, the return of the multi-generational family household, pew research center, march 18, 2010. 187 see u.s. dept. of educ., loans, federal student aid, http://studentaid.ed.gov/types/loans; see generally u.s. dept. of educ., recent changes to the student aid programs, federal student aid, http://studentaid.ed.gov/about/ announcements/recent-changes (“note: if you receive a direct subsidized loan that is first disbursed between july 1, 2012, and july 1, 2014, you will be responsible for paying any interest that accrues during your grace period. if you choose not to pay the interest that accrues during your grace period, the interest will be added to your principal balance”; also stating that subsidized direct loans are no longer eligible for a six-month grace period for interest after a student falls below at least half-time enrollment; graduate and professional students are no longer eligible for subsidized loans effective july 1, 2012). 188 see generally u.s. dept. of educ., plus loans, federal student aid, http://studentaid.ed.gov/types/ loans/plus#am-i-eligible-for; u.s. dept. of educ., parents, federal student aid, http://www.direct.ed.gov/parent. html. 189 see generally u.s. dept. of educ., federal student aid handbook 2013 2014, vol. 1: student eligibility; texas guaranteed student loan corporation, federal direct loan program (fdlp) – plus loans, http://www.tgslc.org/ 2014 columbia journal of race and law 155 critics of the plus loan program purport that parents may be misinformed about the terms of these loans.190 for example, parent borrowers may be unable to handle the additional debt burden of these loans, which enter into repayment upon disbursement of the loan funds, even while their children are still enrolled in college.191 while an in-school deferment for plus loans is available, interest still accrues and capitalizes on the loans if not incrementally paid.192 student and parent advocates also argue that plus loans present a danger to financial stability.193 particularly, student loan borrowers may take out far more debt than they can afford or need with minimal asset, income, or employment verification.194 the federal plus loan program is also subject to criticism in approving and possibly disbursing inflated loan amounts without regard to other outstanding financial debt such as mortgages and auto loans.195 such policy may result in a plus loan repayment schedule that exceeds the borrower’s monthly discretionary income and expenses.196 an increasing number of families in the current economy are denied plus loans due to an emphasis on the adverse credit history underwriting factor.197 subsequent to the credit crunch and ensuing economic conditions, the federal government may be the lender of last resort for families stressed by financial hardship.198 if applicants are denied federal plus loans, they may also fail to qualify for private student loans.199 further, plus loan denials may negatively impact college enrollment by leaving some families and students unable to pay for college.200 borrowers/loans/federal/fdlp/plus.cfm. 190 see marian wang, et. al, parent plus loan: how the government is saddling parents with loans they can’t afford, chronicle of higher education, 2012. 191 see id.; see generally david p. smole, cong. research serv., rl34452, proposals to ensure the availability of federal student loans during an economic downturn: a brief overview of h.r. 5715 and s. 2815 (2008) (“under current law [as of 2008], the repayment of plus loans to parents, graduate students, and professional students commences not later 60 days after the last disbursement of the loan is made. this is in contrast to the repayment of stafford loans, for which repayment does not commence until the day after six months following the borrower ceasing to be enrolled in school on at least a half-time basis.”). 192 see u.s. dept. of educ., deferment and forbearance, federal student aid, http://studentaid.ed.gov/ repay-loans/deferment-forbearance (noting that the federal government will not pay the interest on any unsubsidized loans, including plus loans). 193 see wang, supra note 190. 194 see tim grant, parents should beware of borrowing too much for children’s college education, pittsburg postgazette, april 23, 2013, http://www.post-gazette.com/stories/business/news/parents-should-beware-of-borrowingtoo-much-to-pay-for-their-childrens-college-education-684630/. 195 see lynn o’shaughnessy, why parent college loans can be hazardous, cbs news, nov. 29, 2012, http://www.cbsnews.com/8301-500395_162-57556031/why-parent-college-loans-can-be-hazardous/. 196 see, e.g., liz weston, parent plus loans pose hazard, msn money, nov. 15, 2012, http://money.msn.com/ baby-boomers/parent-plus-loans-pose-hazards. 197 see wang, supra note 190; libby a. nelson, cracking down on plus loans, inside higher education, oct. 12, 2012, http://www.insidehighered.com/news/2012/10/12/standards-tightening-federal-plus-loans. 198 see mark kantrowitz, solving the student loan credit crunch (2008), at 3, http://www.finaid.org/educators/ studentaidpolicy.phtml (listing the lender-of-last resort program as a possible, but untested solution, to the loss of potential student loan lenders). 199 see generally 34 c.f.r. § 682.204(d) (2013) (“a parent’s refusal to borrow a plus loan does not constitute an exceptional circumstance.”). 200 see, e.g., reginald stuart, hbcus trying to undo damage resulting from federal parent plus loan revisions, diverse issues in higher educ., may 2, 2013, http://diverseeducation.com/article/53056/; brock vergakis, plus loans: new u.s. department of education policies hamper black college enrollment, huffington post, feb. 26, 2013, http://www.huffingtonpost.com/2013/02/26/plus-loans-new-us-departm_n_2766191.html; reginald stuart, loan change sends thousands of students home, diverse issues in higher education, oct. 11, 2012; see generally kenneth foreclosures and financial aid vol. 4:2 156 the federal plus loan program was previously administered in part under the ffel program where private lenders, including banks and other financial institutions, would fund federally insured student loans.201 the ffel plus loan program was discontinued for loans issued after june 30, 2010.202 the u.s. department of education is now the plus loan originator under the direct loan program.203 however, ffel plus loans issued before the program was discontinued will remain under the administration of private lenders.204 the ffel plus loan interest rate is, at 8.5%, higher than the corbin, guide to student loans: 3 must-know facts about stafford, parent plus and private loans, usa today, sept. 2, 2011, http://www.usatodayeducate.com/staging/index.php/toolbox/guide-to-student-loans-3-must-know-facts-aboutstafford-parent-plus-and-private-loans. 201 see u.s. dept. of educ., federal family education loan (ffel) program, purpose, federal student aid, http://www2.ed.gov/programs/ffel/index.html; u.s. dept. of educ., student loan borrower assistance, federal student aid, http://www.studentloanborrowerassistance.org/understand-loans/federal-loans/; u.s. dept. of educ., subsidized and unsubsidized loans, federal student aid, http://studentaid.ed.gov/types/loans/ subsidized-unsubsidized. 202 see health care and education reconciliation act of 2010, pub. l. 111 – 152, 20 usca § 1078-2, including the student aid and fiscal responsibility act (safra); see generally finaid, student aid and fiscal responsibility act of 2009, http://www.finaid.org/educators/20090715hr3221.phtml (“safra switches to 100% direct lending starting july 1, 2010, ending the origination of new ffelp loans on that date. all new federal education loans would be made through the direct loan program.”); angela schmitz, what is a federally guaranteed student loan?, nolo, http://www.nolo.com/legal-encyclopedia/what-is-federally-guaranteed-student-loan.html. 203 see u.s. dept. of ed., federal family education loan (ffel) program, purpose, http://www2.ed.gov/ programs/ffel/index.html; student loan borrower assistance, federal loans, http://www.studentloanborrower assistance.org/understand-loans/federal-loans/. but see u.s. dept. of ed., ensuring continued access to student loans act (ecasla) annual report to congress, 2-3 (july 2011), https://studentaid.ed.gov/sites/default/files/fsawg/datacenter /library/july2011ecaslareport.pdf (“both [the ffel and direct loan programs] are government programs with substantial private sector involvement . . . . also, in both programs, origination, disbursement, and servicing are performed by private firms – either the lenders themselves or their contractors . . . . as a result of disruptions in the financial markets in early 2008, many ffel lenders raised concerns . . . . without proactive federal intervention, there was serious concern large numbers of students would find their source of federal student loans disrupted when schools had little time to shift to other lenders or to the direct loan program.”). 204 see u.s. dept. of ed., ensuring continued access to student loans act (ecasla) annual report to congress, july 2011, http://studentaid.ed.gov/sites/default/files/fsawg/datacenter/library/july2011ecaslareport. pdf; u.s. dept. of ed., repayment plans, http://studentaid.ed.gov/repay-loans/understand/plans; see, e.g., u.s. dept. of ed., loan consolidation, http://studentaid.ed.gov/repay-loans/consolidation (“although loan forgiveness under this program is available only for loans made and repaid under the direct loan program, loans made under other federal student loan programs may become eligible for forgiveness if they are consolidated into a direct consolidation loan. however, only payments made on the direct consolidation loan will count toward the required 120 monthly payments.”); see generally finaid, student aid and fiscal responsibility act of 2009, http://www.finaid.org/educators/ 20090715hr3221.phtml; angela schmitz, what is a federally guaranteed student loan?, nolo, http://www.nolo.com/ legal-encyclopedia/what-is-federally-guaranteed-student-loan.html (“although schools no longer offer guaranteed student loans, the guaranteed student loan system will be in place for many years to come. that is because millions of borrowers still owe money on ffel guaranteed loans. the guarantee agencies will continue to pay banks for defaulted ffel loans and pursue collection on those loans until the last ffel loan is paid off.”); answers.usa.gov, federal direct loan programs and federal family education loan (ffel), http://answers.usa.gov/system/selfservice. controller?configuration=1000&partition_id=1&cmd=view_article&article_id=10894 (“as of july 1, 2010, the federal family education loan program (ffel) no longer makes loans. students who have previously received a federal student loan from a private lender under the ffel program will need to complete a new promissory note to receive loans under the direct loan program.”). 2014 columbia journal of race and law 157 current direct plus loan fixed interest rate of 6.41%.205 also, public service loan forgiveness is generally only available under the direct loan program.206 private student loan lenders that serviced ffel loans were previously subject to minimal state and federal regulation.207 the dodd-frank act established the cfpb, in part, to provide oversight to the private student loan industry.208 almost half of the complaints that the cfpb received during the initial commentary period regarding private student loans concerned private student loan lender sallie mae (also a servicer of federal student loans), thereby identifying the lender for supervision.209 uncapped and variable interest rates, unfavorable deferment and forbearance terms, and possible prepayment fees are 205 see u.s. dept. of ed., interest rates and fees, http://studentaid.ed.gov/types/loans/interest-rates (plus loan interest rate was formerly 7.9%); bipartisan student loan certainty act; see also christine lindstrom, the good, the bad, and the ugly in the student-loan deal, chron. of higher education, aug. 8, 2013. 206 see u.s. dept. of educ., federal student aid – loan forgiveness for public service employees, march 2012, www.studentaid.ed.gov/publicservice; but see heather jarvis, parents beware of plus sized student loans, june 20, 2011, http://askheatherjarvis.com/blog/parents-beware-of-plus-sized-student-loans (“direct parent plus loans are technically eligible for public service loan forgiveness, but not really. . . . you can’t actually make payments on a parent plus loan that count towards public service loan forgiveness, unless you pay under the standard 10-year repayment plan, which won’t leave anything left to forgive.”). 207 see consumer financial protection bureau, education loan examination procedures, http://files.consumer finance.gov/f/201212_cfpb_educationloanexamprocedures.pdf; see generally diana jean schemo, private loans deepen a crisis in student debt, n.y. times, june 10, 2007; ameet sachdev, rules for student loans get tighter, chicago tribune, jan. 23, 2008; but see national consumer law center, piling it on: the growth of proprietary school loans and the consequences for students, 2011, 2 (noting that private institutional student loans may still evade scrutiny by regulators). 208 see dodd-frank act, § 1077; see generally consumer financial protection bureau and the u.s. dept. of educ., private student loans, pg. 6, aug. 2012, http://files.consumerfinance.gov/f/201207_cfpb_reports_private-studentloans.pdf; u.s. dept. of educ., consumer financial protection bureau now taking private student loan complaints, march 5, 2012, http://www.ed.gov/news/press-releases/consumer-financial-protection-bureau-now-taking-privatestudent-loan-complaints; consumer financial protection bureau, about us, http://www.consumerfinance.gov/ the-bureau/. 209 see holly petraeus, statement by cfpb’s holly petraeus on doj, fdic enforcement actions against sallie mae, cfpb, may 13, 2014, http://www.consumerfinance.gov/newsroom/statement-by-cfpbs-holly-petraeus-on-dojfdic-enforcement-actions-against-sallie-mae/ (“[t]he u.s. department of justice announced an enforcement action against sallie mae (also known as sallie mae bank and navient solutions), the largest servicer of federal and private student loans, which was found to be systematically violating the legal rights of u.s. servicemembers. the federal deposit insurance corporation (fdic) also reached a settlement with the companies that addresses allegations of student loan servicing misconduct. sallie mae is ordered to pay $96.6 million in restitution and penalties.”); alan zibel & andrew grossman, sallie mae, navient reach student-loan settlement with u.s. government, wall st. j., may 13, 2014, http://online.wsj.com/news/articles/sb10001424052702303851804579560053304272542 (“two of the biggest companies in the student-loan market agreed on tuesday to pay a combined $97 million to settle federal charges they overcharged military members and imposed excessive fees for student loans. . . . the justice department's portion of the settlement requires the companies to pay $60 million in refunds and a $55,000 civil penalty. the fdic required $30 million in refunds and $6.6 million in penalties.”); association of credit and collection professionals, cfpb investigates sallie mae, http://www.acainternational.org/cfpbarticle-cfpb-investigates-sallie-mae-29491.aspx; consumer financial protection bureau, our student loan complaint system is open for business, march 5, 2012, http:// www.consumerfinance.gov/blog/our-student-loan-complaint-system-is-open-for-business/; catherine new, consumer financial protection bureau finds student, mortgage lenders have ‘uncanny resemblance’, huffington post, oct. 16, 2012, http://www.huffingtonpost.com/2012/10/16/consumer-financial-protection-bureau-private-student-loan_n_196 8232.html. see generally salle mae, primer on private education loans, https://www.salliemae.com/about/news_info/ primer/default.aspx; libby a. nelson, looking over servicers’ shoulders, inside higher educ., march 15, 2013, http:// www.insidehighered.com/news/2013/03/15/consumer-financial-protection-bureau-seek-oversight-loan-servicers; danielle douglas, sallie mae to split into two companies, washington post, may 29, 2013; john hechinger and janet lorin, sallie mae split marks bet on much-abused private student loans, bloomberg, may 31, 2013. foreclosures and financial aid vol. 4:2 158 the private student loan terms under scrutiny by the cfpb.210 the heoa also addressed conflicts of interest along with unfair and deceptive educational lending practices that plagued the private student loan industry prior to increased regulation.211 iv. financial aid best practices financial aid reform efforts have set forth executive orders and legislation,212 but these initiatives may not provide sufficient relief for student borrowers and their families.213 federal laws and regulations 210 see zibel & grossman, supra note 209 (“federal and state scrutiny of the nearly $1.2 trillion student-loan industry has increased. . . . the consumer financial protection bureau . . . started overseeing the largest u.s. studentloan servicers in march. that agency has raised concerns about student-loan firms' treatment of military members as well as servicers that may charge borrowers improper fees and fail to properly process payments.”); rohit chopra, thousands of voices on private student loans, cfpb, june 13, 2012, http://www.consumerfinance.gov/blog/thousands-of-voices-onprivate-student-loans/. see generally 15 u.s.c. § 1650; federal trade commission, student loans: avoiding deceptive offers, ftc facts for consumers, may 2012; lynn o’shaughnessy, a hidden hazard of private student loans, march 11, 2013; cfpb, mid-year snapshot of private student loan complaints, july 2013. 211 see higher education opportunity act of 2008, title x–private student loan improvement; pub. l. no. 110-315, 122 stat. 3078 (2008); see also student loan sunshine act, s. 486, 110th cong. (2007); editorial, needless student loan subsidies, n.y. times, april 18, 2007 “[l]awmakers are looking around for ways to root out the kinds of corruption uncovered in recent investigations by new york’s attorney general, andrew cuomo. a good start would be to pass the student loan sunshine act . . . . the sunshine act would make it a federal crime for lenders to offer college officials anything of value in exchange for the right to do business at a given school. the new law would require the colleges to explain publicly why they had placed a given lender on the school’s ‘preferred lender’ list and would force the institutions to disclose any special deals that had been made behind the scenes.”); see also comm. on educ. and labor, the student loan sunshine act: cleaning up student aid (2007), http://democrats.edworkforce.house.gov/sites /democrats.edworkforce.house.gov/files/documents/050807sunshineact.pdf; editorial, needless student loan subsidies, n.y. times, apr. 18, 2007, http://www.nytimes.com/2007/04/18/opinion/18weds2.html?_r=0; see generally higher education opportunity act – 2008, u.s. dep’t of educ., http://www2.ed.gov/policy/highered/leg/hea08/index.html (last visited mar. 7, 2014); see generally nat’l ass’n of college and university bus. officers, loan provisions permeate higher education opportunity act, sept. 10, 2008, http://www.nacubo.org/initiatives/initiatives_news/ loan_provisions_permeate_higher_education_opportunity_act.html (“the higher education opportunity act (heoa) does not make major changes to the substance or operation of the federal loan programs, but does include numerous provisions addressing the controversies and perceived abuses that were the focus of so much attention last year. . . . many of the provisions stem from the student loan sunshine act passed by the house last year and are similar to requirements in department of education regulations that took effect july 1. notably, colleges and universities that participate in the federal student loan programs will be required to adopt a code of conduct that meets specific requirements spelled out in the law. and, for the first time, some of the new heoa provisions address private or alternative education loans, not just federally guaranteed student loans.”). 212 see obama to issue order easing student loan debt pressures, reuters (june 8, 2014, 2:13 pm) http://www. reuters.com/article/2014/06/08/us-usa-obama-studentloans-iduskbn0ej0qw20140608 (“the president will sign an order directing the secretary of education to ensure that more students who borrowed federal direct loans be allowed to cap their loan payments at 10 percent of their monthly incomes, the official said. federal law currently allows most students to do this already. the president's order will extend this ability to students who borrowed before october 2007 or those who have not borrowed since october 2011, the official said. the administration says this action will help up to 5 million more borrowers, although it will not be available until december 2015. . . . preventing student loan repayment problems fits with that goal because officials say it will help young workers avoid credit blemishes that will hurt them down the road . . . . because credit ratings are increasingly scrutinized in making employment offers, financing a home, or even opening a bank account, a damaged credit rating has widespread negative consequences . . . .”). 213 see david p. smole, proposals to ensure the availability of federal student loans during an economic downturn: a brief overview of h.r. 5715 and s. 2815, crs report for congress, april 15, 2008 (“issues concerning federal student loans have been active during the 110th congress. on october 27, 2007, the college cost reduction and access act of 2007 (ccraa; p.l. 110-84) was enacted, which made numerous changes to the federal student loan programs. also in the 110th congress, the house and the senate have passed bills, h.r. 4137 and s. 1642, respectively, to amend and extend the hea. on april 10, 2008, the house committee on education and labor marked up h.r. 5715, the 2014 columbia journal of race and law 159 pertaining to the financial aid industry do not adequately extend the promise of higher education to the masses.214 the recent occupy student loans movement highlights the need for more effective change in the student loan market.215 the bureaucratic nature of the federal financial aid system perpetuates the need for reform as students and families struggle to pay for skyrocketing college costs.216 despite increased federal oversight of the student loan industry, proactive enforcement is necessary to achieve financial stability.217 a balance between affordability and accessibility must be weighed in the public and private sectors to realize manageable student loan debt.218 personal accountability certainly plays a role in containing and lowering student loan debt.219 however, the federal financial aid system should be revised to reward those who take the initiative to improve their employment prospects by attaining an education.220 the federal student aid program opens the door to higher education, but may shut the window to reasonable repayment.221 strategies to revise ensuring continued access to student loans act of 2008. this closely followed the introduction of s. 2815, the strengthening student aid for all act, in the senate on april 3, 2008. both bills would amend the hea to address the continued availability of federal student loans.”) (citation omitted). see, e.g., strengthening student aid for all act, senate bill 2815, april 3, 2008 (previously proposed legislation would amend the hea to include a mechanism to apply a negative “expected family contribution” in determining eligibility for need-based aid). see also kevin carey, the federal parent rip-off loan, chron. of higher educ., june 3, 2013 (“we need basic structural changes in the way such colleges are financed, not a few more years of financial band-aids, paid for through the indebtedness of people who can least afford to borrow.”). 214 see generally kevin carey, higher-education reform: a legacy for obama?, chron. of higher educ., jan. 21, 2013; the white house, higher education, http://www.whitehouse.gov/issues/education/higher-education#collegeaffordability. 215 see generally eric hoover, protesters plan a national ‘student-debt refusal’ campaign, chron. of higher educ., nov. 16, 2011; geraldine baum, student loans add to angst at occupy wall street, l.a. times, oct. 25, 2011; shannon bond, student debt gains occupy’s attention, financial times, april 25, 2012; occupy student debt campaign, a statement from the occupy student debt campaign, http://www.occupystudentdebtcampaign.org/click-to-read-ourstatement-on-student-debt-reform-initiatives/; occupy student debt, http://occupystudentdebt.com/. 216 see generally occupy student debt campaign, a statement from the occupy student debt campaign, http://www.occupystudentdebtcampaign.org/click-to-read-our-statement-on-student-debt-reform-initiatives/. 217 see generally nick hillman, student loans and public accountability, american association of state colleges and universities, july 2007; occupy student debt campaign, a statement from the occupy student debt campaign, http://www.occupystudentdebtcampaign.org/click-to-read-our-statement-on-student-debt-reform-initiatives/. 218 see reid spagna, lenders mobilize to help college kids manage student loans, cnbc, aug. 15, 2012, http://www.cnbc.com/id/48672721 (“amid an explosion of student-loan debt, private lenders, credit-rating agencies, and nonprofits have begun offering consumer-friendly opportunities for students to take the financial anxiety out of borrowing for college.”); see generally white house, fact sheet: “help americans manage student loan debt”, press release, oct. 25, 2011, http://www.whitehouse.gov/the-press-office/2011/10/25/fact-sheet-help-americans-managestudent-loan-debt; u.s. house of representatives, government-run student loans: ensuring the direct loan program is accountable to students and taxpayers, oct. 25, 2011, http://www.gpo.gov/fdsys/pkg/chrg-112hhrg70771/pdf/ chrg-112hhrg70771.pdf. 219 see generally loans, federal student aid, http://studentaid.ed.gov/types/loans (last visited mar. 16, 2013) (“you should not be afraid to take out federal student loans, but you should be smart about it.”); see, e.g., honey smith, how i got deep in student loan debt, msn money, aug. 20, 2012, http://money.msn.com/saving-moneytips/post.aspx?post=fac31682-562d-4232-866b-ac2b4e6d3706. 220 see barack obama, remarks by the president on higher education, white house, april 24, 2009, http://www.whitehouse.gov/the-press-office/remarks-president-higher-education; see generally libby a. nelson, occupy student loans, inside higher educ, nov. 15, 2011, http://www.insidehighered.com/news/2011/11/15/occupyprotests-focusing-increasingly-student-debt. 221 see generally libby a. nelson, no way out of default, inside higher educ, april 18, 2012, http://www. insidehighered.com/news/2012/04/18/problems-plague-education-department-debt-management-process; saki knafo, occupy targets student debt as national student loan debt hits $1 trillion, huffington post, april 25, 2012, http://www.huffingtonpost.com/2012/04/25/occupy-student-debt-occupy-obama-_n_1453993.html; allie bidwell, foreclosures and financial aid vol. 4:2 160 or reform student loan legislation to make education more accessible to a larger sector of the population may contribute to college degree attainment by the lower and middle classes.222 the federal plus student loan program is in need of reform to benefit low and moderate-income borrowers. a. plus loan reform the plus loan program requires a credit check that has increasingly led to more denials.223 the credit check for the plus loan program was described as “moderate” prior to the recent credit crunch.224 however, plus loan applicants now undergo a more stringent credit check.225 the recent plus loan eligibility revisions, which were implemented without consideration of public commentary, had a negative impact on the higher education prospects of those who attend minority serving institutions such as historically black colleges and universities (hbcus).226 the unilateral change in plus loan credit eligibility in 2011 adversely affected colleges that enroll a large demographic of low and moderate income students who disproportionately tend to be minorities, due in part to the racial wealth gap.227 both hbcus and for-profit colleges, institutions with sizeable minority and low-income consumer-protection agency seeks oversight of nonbank student-loan servicers, chron. of higher educ., march 14, 2013; d. bruce johnstone, higher education accessibility and financial viability: the role of student loans, pgs. 1 – 2, 7 – 11; 14 – 17, http://gse.buffalo.edu/org/inthigheredfinance/files/publications/student_loans/(2005)_higher_ education_accessibility_and_financial_viability_the_role_of_student_loans.pdf. 222 see generally edward p. st. john and eric h. asker, refinancing the college dream: access, equal opportunity, and justice for, jhu press 2-4, 21-22 (describing financial aid policies from the reagan, bush, and clinton presidential administrations as reducing grants, increasing loans, and later providing some tax relief, but with the effect of widening the opportunity act among low and middle class students); joseph e. stiglitz, student debt and the crushing of the american dream, n.y. times, may 12, 2013, http://opinionator.blogs. nytimes.com/2013/05/12/student-debt-and-the-crushing-of-the-american-dream/. 223 see libby a. nelson, cracking down on plus loans, inside higher educ., oct. 12, 2012, http://www.insidehighered.com/news/2012/10/12/standards-tightening-federal-plus-loans; see generally u.s. dept. of ed., parents, http://www.direct.ed.gov/parent.html. 224 see, e.g., associated press, obama’s morehouse visit shines spotlight on hbcus, may 18, 2013. 225 see generally jesse jackson, more youth priced out of college, chicago sun-times, march 18, 2013; michelle hollinger, more black and white students denied college loans; now what?, dc spotlight, http://www.dcspotlight.com/ featured/op-ed-more-black-and-white-students-denied-college-loans-now-what/. 226 see corinne brown, testimony on plus loans at department of education hearing, may 21, 2013, http://corrinebrown.house.gov/index.php?option=com_content&view=article&id=741:testimony-on-plus-loans-atdepartment-of-education-hearing&catid=3:press-releases&itemid=35 (credit qualification changes to the plus loan program affected over 400,000 students overall, including 28,000 hbcu students resulting in a multi-million dollar loss to hbcus); reginald stuart, hbcus trying to undo damage resulting from federal parent plus loans revisions, diverse issues in higher education, may 2, 2013; cyril josh barker, hbcus suffer after changes to plus loan program, amsterdam news, march 21, 2013; lezli baskerville, student loan changes are crippling hbcus, the atlanta voice, june 7, 2013, http://theatlantavoice.com/news/2013/jun/07/student-loan-changes-are-crippling-hbcus/ (“the new plus loan eligibility criteria are applicable to all applicants, but disproportionate percentages of hbcus and students attending hbcus were adversely impacted by the regulatory shift because hbcus and the majority of families they serve have fewer financial resources.”). see generally latanya brown and daren a. conrad, the foreclosure crisis, parent plus loan approvals, and minority college enrollment: is there a link?, 3(1) am. int’l j. of contemp. res., (2013); federal reserve, report to the congress on credit scoring and its effects on the availability and affordability of credit, aug. 2007; see, e.g., laura diamond, morehouse college cuts spending after enrollment drops, atlanta journal-constitution, oct. 18, 2012, http://www.ajc.com/news/news/morehouse-college-cuts-spending-after-enrollment-d/nsgt8/; adam rust, young minds, big debts: student loans at north carolina’s hbcus, north carolina institute for minority economic development, 2009; u.s. dept. of ed., list of postsecondary institutions enrolling populations with significant percentages of minority students, http://www2.ed.gov/about/offices/list/ocr/edlite-minorityinst.html. 227 see john michael lee, jr. and samaad wes keys, impact of parent plus loan changes on historically black colleges and universities, fact sheet, office for access and success, association of public and land-grant universities, aug. 2013, http://www.aplu.org/document.doc?id=4746 (“hbcus lost an estimated $168 million as a 2014 columbia journal of race and law 161 students, experienced a sharp decline in plus loan recipients subsequent to the credit changes in eligibility.228 the more stringent plus loan eligibility criteria now takes into account student loans and other debt in collections within the previous five years under a new standard.229 consequently, plus loan rejection rates rose from 28% to 38% in 2012,230 and 19% fewer recipients were approved for result of the large number of students who were not able to start or continue their college education.”); jarrett l. carter, plus loan crisis a blessing in disguise for national hbcu agenda, huffington post (aug. 21, 2013), http://www.huffingtonpost.com/jarrett-l-carter/plus-loan-crisis-a-blessi_b_3782738.html (“the plus loan meltdown of 2012-14 will go down as one of the great targeted economic assaults on black americans and black colleges in american history. in the last two years, hbcus have lost well over $300 million dollars in lost grants from federal agencies and lost tuition revenues due to eligibility changes in the federal lending program.”). see, e.g., kevin carey, the federal parent rip-off loan, chron. of higher educ., june 3, 2013 (“morehouse college was forced to furlough faculty and staff members. clark atlanta university saw its loan-denial rate increase from 25 percent to 65 percent . . . . hbcu leaders have responded with alarm. the president of stillman college described the policy change as a ‘disaster for hbcus.’ u.s. rep. corrine brown, a democrat from florida and a member of the congressional black caucus, called it ‘devastating.’ the thurgood marshall college fund has threatened to sue the government.”); thurgood marshall college fund, parent plus loans, http://www.thurgoodmarshallfund.net/images/stories/site/ppl/ppl.pdf; see generally thomas m. shapiro and jessica l. kenty-drane, the racial wealth gap, in african americans in the u.s. economy, 175 – 181 (cecilia conrad, rowman & littlefield publishers eds., 2005). 228 see rachel fishman, the parent trap: parent plus loans and intergenerational borrowing, new america, jan. 2014, at 5 (“from 2011 to 2013 after the changes to the credit check were put in place, hbcus experienced a 45 percent drop in parent plus loan recipients, and a 27 percent reduction in plus loan disbursements. at for-profits, both plus loan borrowers and disbursements declined 54 percent.”); nick anderson, analyst: more reforms needed on federal education loans to parents, washington post, jan. 8, 2014 (“for the past two years, many colleges have scrambled to help students find the money they need to stay in school because the federal government tightened standards for lending to parents. the flux was especially intense for historically black colleges and universities, including howard and morgan state universities, which serve a large share of students in financial need.”); john silvanus wilson jr., making plus loans add up for all americans, huffington post (dec. 19, 2013), http://www.huffingtonpost.com/john-silvanus-wilsonjr/making-plus-loans-add-up-for-all-americans_b_4474155.html?ncid=edlinkusaolp00000003&amp;ir=black+voices (“especially during an economic downturn, the rules [pertaining to parent plus loan eligibility] should be relaxed in a "performance-sensitive" way so that parents do not have to forgo or postpone higher education for their capable children because of job loss or other negative financial conditions that are likely to be reversed when the economy recovers. with this approach, an individual's academic performance and employment potential can trump a family's adverse credit!”). see also david j. deming, et al., the for-profit postsecondary school sector: nimble critters or agile predators? (nber working paper no. 17710, 2011); npr, for-profit colleges: targeting people who can’t pay, may 12, 2011 at 10:23 am, http://www.npr.org/2011/05/12/136238528/for-profit-colleges-targeting-people-who-cant-pay. 229 see kevin carey, the federal parent rip-off loan, chronicle of higher education, june 3, 2013 (“the parents at the heart of the current controversy are, by definition, people who don't have enough money to pay for their children's education out of pocket, can't get credit in the private market, and have had trouble paying off debts in the past.”); justin doubleday, with parents denied loans, students scramble at hbcus, chron. of higher educ., oct. 7, 2013 (“until 2011, applicants were approved for a plus loan as long as they were not more than 90 days delinquent on any debt, and did not have any foreclosures, bankruptcies, tax liens, wage garnishments, or student-loan defaults in the past five years. under the new standards, unpaid debts in collection and student loans written off as unpayable in the previous five years also count against applicants.”). 230 see rachel fishman, voices from the front lines of the hbcu plus loan crisis, higher ed watch, new america foundation, june 19, 2013, http://higheredwatch.newamerica.net/blogposts/2013/voices_from_the_front_ lines_of_the_hbcu_plus_loan_crisis-86339 (“many families and higher-education institutions were shocked to find that parents approved for parent plus loans one year were suddenly denied the next. some sectors, like historically black colleges and universities (hbcus), were hit harder than others. in response to concerns over the changes, the education department added plus loan eligibility criteria to a list of potential topics to be considered for regulatory action. as part of this process, the education department asked for written comments and held four public hearings to allow individuals to provide testimony.”). foreclosures and financial aid vol. 4:2 162 plus loans during the 2012–2013 academic year.231 the decline in plus loan approvals for a significant proportion of hbcu enrollees may be attributed to losses in the employment and housing sectors.232 “the shift to a more rigid interpretation of creditworthiness occurred as many hbcu student families are finding the post-great recession economic recovery elusive. official african american unemployment hovers near 14%. many hbcu parents witnessed their wealth decline by 53% (compared with 13% for whites). this coupled with the bursting of the housing bubble, subprime mortgage lending, and the disproportionate numbers of african americans who lost their homes also wreaked havoc on hbcu/pbi [predominately black institution] parents.”233 accordingly, parents of students attending hbcus may be more likely to have financial records that fall within the “adverse credit history” category of the plus loan eligibility review.234 despite the need for 231 see michael lucius lomax, revise student loan programs now to empower hbcus, the grio, july 12, 2013, (“in our [united negro college fund (uncf)] network of 37 historically black colleges and universities, parent plus loan approval rates for families with students attending our hbcus dropped dramatically after ed [united states department of education] changed its criteria, from an average approval rate of 45 percent to only 24 percent. almost 6,000 fewer students at uncf institutions were approved for plus loans in the 2012-2013 school year compared to the previous year – a number equivalent to approximately 10 percent of total enrollment at these institutions.”). 232 see john michael lee, jr. and samaad wes keys, impact of parent plus loan changes on historically black colleges and universities, fact sheet, office for access and success, association of public and land-grant universities, aug. 2013, http://www.aplu.org/document.doc?id=4746; see generally michael lucius lomax, revise student loan programs now to empower hbcus, the grio, july 12, 2013 at 5:07 pm (“the secretary [of education, arne duncan] points out that children of parents who are refused parent plus loans become eligible for other kinds of loans – but these loans do not fully fund their unmet financial need. but he is holding fast to the policy decision that triggered the debate: to determine parent plus eligibility not based on criteria designed to send the most kids to and through college, but based on the tougher criteria that commercial lenders charge non-education customers. these criteria exclude too many of our parents and students.”); lezli baskerville, student loan changes are crippling hbcus, atlanta voice, june 7, 2013 at 10:22 am, http://theatlantavoice.com/news/2013/jun/07/student-loan-changes-arecrippling-hbcus/. 233 lezli baskerville, student loan changes are crippling hbcus, atlanta voice (june 7, 2013 at 10:22 am), http://theatlantavoice.com/news/2013/jun/07/student-loan-changes-are-crippling-hbcus/; see also wilford shamlin iii, philadelphia tribune acknowledges ldf’s support of hbcu students, oct. 25, 2013, http://www.naacpldf.org/news/ philadelphia-tribune-acknowledges-ldfs-support-hbcu-students (“the financial impact of revised credit standards could have wider ramifications that reach far beyond black families. hbcu’s are harvesting grounds for half of the country’s black public school teachers, 80 percent of black judges and 40 percent of baccalaureate degrees conferred to students in science, technology, engineering, and mathematics (stem) fields. under a new policy adopted two years ago, the u.s. department of education began denying loan requests for parent plus loans to any applicant who had a negative report on their credit history for the last five years. parents who have credit lines reported as delinquent or settled for less than the amount owed — charge-off — are automatically denied. the u.s. doe was criticized for taking that action without regard to its financial impact and then giving affected families little time to make contingency plans.”) (documenting a partnership between the naacp legal defense fund and the uncf). 234 see nick anderson, tighter federal lending standards yield turmoil for historically black colleges, washington post, june 22, 2013 (“an education department action in october 2011 touched off the turmoil over parent loans. at the time, federal officials considered the matter routine. they tightened the screening process for loan applications to ensure that certain kinds of unpaid debts were considered in a review of a parent’s credit record. that made it more likely that some applicants would be deemed to have an ‘adverse credit history’ and therefore ineligible. acting deputy education secretary jim shelton said the action was taken by ‘middle management’ officials in an effort to fix what they saw as ‘a glitch in the system.’ he said that top officials did not review the decision before it was implemented, but that the department stood by it as consistent with laws and regulations. 2014 columbia journal of race and law 163 enhanced underwriting standards cited by the department of education for the awarding of federal financial aid,235 the revised credit eligibility criteria may do little to curb plus loan defaults, and may place small colleges and universities in danger of closing in underserved communities.236 the plus loan debacle may also contribute to problems concerning low student retention and graduation rates that negatively impact institutions with high minority enrollment.237 the full force of the underwriting shift began to be felt in the summer of 2012, when parents applied for loans for their children in advance of the fall term.”); derek t. dingle, a new curriculum for hbcus, black enterprise, sept. 2013 (“the concerns [regarding credit eligibility changes to the plus loan program] were around two basic points: charge-offs and collections. we didn’t change the rules. we brought two programs that were operating differently [and] brought them together to consistently operate the same way.”) (citing jim shelton); white house initiative on historically black colleges and universities, remarks of u.s. secretary of education to the national hbcu week conference: the enduring and evolving role of hbcus (sept. 26, 2013), http://www.ed.gov/edblogs/whhbcu/2013/09/30/remarksof-u-s-secretary-of-education-to-the-national-hbcu-week-conference-the-enduring-and-evolving-role-of-hbcus/ (“[s]ome have said we are choosing not to reverse the policy because we don’t care, and nothing—nothing—could be further from the truth. our department is required to carry out the law as it was designed to protect parents and taxpayers against unaffordable loans.”). 235 see id. 236 see kevin carey, the federal parent rip-off loan, chron. of higher educ., june 3, 2013 (“in the long run, state and federal governments should together develop a comprehensive rescue-and-investment plan for the nation's struggling colleges, particularly those with a mission to serve first-generation and minority students. those institutions have missions and traditions woven deep into the fabric of american learning. they have been left to struggle in the financial wilderness, with some of the most vulnerable being snapped up by for-profit colleges and used for their accreditation status like so many tear-down houses. the government should provide more financial aid, both to students and directly to institutions, for colleges that serve a high percentage of low-income students, in exchange for a commitment to meeting high standards of academic excellence.”); rachel fishman, voices from the front lines of the hbcu plus loan crisis, higher ed watch, new america foundation, june 19, 2013, http://higheredwatch.new america.net/blogposts/2013/voices_from_the_front_lines_of_the_hbcu_plus_loan_crisis-86339 (“[n]ot only did the plus loan change inhibit access to college for low-income students, but it also caused institutions to lose millions of dollars in revenue.”). 237 see derek t. dingle, a new curriculum for hbcus, black enterprise, sept. 2013; see generally white house initiative on historically black colleges and universities, remarks of u.s. secretary of education to the national hbcu week conference: the enduring and evolving role of hbcus (sept. 26, 2013), http://www.ed.gov/edblogs/whhbcu/2013/09/30/ remarks-of-u-s-secretary-of-education-to-the-national-hbcu-week-conference-the-enduring-and-evolving-role-of-hbcus/ (“i [arne duncan] am not satisfied with the way we [u.s. department of education] handled the updating and changes to the plus loans program. . . . we could have and should have handled the process better. communications internally and externally was poor, and i apologize for that, and for the real impact it has had. that’s why we’ve announced that we will initiate a new rule-making process on this issue early next year.”); kevin carey, the federal parent rip-off loan, chron. of higher educ., june 3, 2013 (“the government saved the housing market, saved the automotive and banking industries, and now has a chance to save the future of the american workforce. a sizable percentage of that workforce will be living and working in black communities, and addressing problems of accessibility for hbcu education directly benefits those communities which need it most.”); john michael lee, jr. and samaad wes keys, impact of parent plus loan changes on historically black colleges and universities, fact sheet, association of public and landgrant universities (aug. 2013), http://www.aplu.org/document.doc?id=4746. see generally u.s. house of representatives, committee on education and the workforce, keeping college within reach: the role of federal student aid programs, hearing at 2 – 3, april 16, 2013, http://www.gpo.gov/fdsys/pkg/chrg-113hhrg80339/pdf/chrg113hhrg80339.pdf, (“[w]e must also be mindful of the consequences that could come with expanding the federal government’s role in the allocation of financial aid. federal financial aid programs intended to help low-income americans pay for college should never be used as bargaining chips to impose federal price controls, nor should we take any action that could limit students’ ability to choose the institution that best suits their needs.”). foreclosures and financial aid vol. 4:2 164 parent plus loans immediately enter repayment status upon disbursement.238 while in-school deferments are permitted for plus loans, interest continues to accrue during any deferment of grace period.239 families in need could benefit from an interest-free deferment and grace period while enrolled in school, and for a limited time after graduation to provide an opportunity for economic stability before payment is due.240 further, the interest rate on plus loans is variable, as it is annually adjusted on july 1st.241 while the plus loan rate was set at 6.14% as a result of the bipartisan student loan certainty act signed into law august of 2013, it may increase.242 perhaps the interest on federal plus loans administered under the enhanced direct loan program should be fixed to provide a degree of relief for student loan borrowers.243 a permanent extension of the lower interest rate in effect on plus loans disbursed from july 1, 2013 through june 30, 2014 could permit further stabilization for borrowers who are still in financial distress from the prolonged and severe economic downturn.244 parent plus loan borrowers are currently ineligible for ibr and icr alternative repayment plans, although the student loan borrower bill of rights proposes their inclusion.245 further, any 238 see u.s. dept. of educ., plus loans, http://studentaid.ed.gov/types/loans/plus; u.s. dept. of educ., parents, http://www.direct.ed.gov/parentrepay.html. 239 see u.s. dept. of educ., plus loans, http://studentaid.ed.gov/types/loans/plus; u.s. dept. of educ., parents, http://www.direct.ed.gov/parentrepay.html; u.s. dept. of educ., deferment and forbearance, http://student aid.ed.gov/repay-loans/deferment-forbearance. 240 see generally student loan borrower assistance, grace periods, http://www.studentloanborrowerassistance. org/repayment/postponing-repayment/grace-periods/; finaid, benefits of paying the interest on student loans during the in-school and grace periods, http://www.finaid.org/loans/negativeamortization.phtml. 241 see u.s. dept. of educ., understand how interest is calculated and the fees associated with your federal student loan, federal student aid, http://studentaid.ed.gov/types/loans/interest-rates; mark kantrowitz, interest rates on the federal plus loan, parentplusloan.com, http://www.parentplusloan.com/plus-loans/plus-loan-interestrate.php (“the new rates for 2013-2014 were retroactive, effective for all loans disbursed on or after july 1, 2013. the interest rates on new loans are still fixed for the life of the loan; however, the each year's new loans will have different fixed rates, based on current market rates. the interest rates on new federal plus loans in subsequent years will change each july 1 based on the yield of the last 10-year treasury auction in may.”) (referencing the bipartisan student loan certainty act of 2013); see also kevin carey, the federal parent rip-off loan, chron. of higher educ., june 3, 2013 (“parent plus loans are the worst federal loans out there. they come at a high interest rate, 7.9 percent, which is closer to 9.0 percent after accounting for origination fees. unlike student loans, they can't be deferred after graduation. nor can parents use the federal income-based repayment program, which limits loan payments to 10 percent of income and forgives remaining debt after 20 years.”). 242 see u.s. dept. of educ., supra note 241; bipartisan student loan certainty act, 20 u.s.c. §1087 (2013); u.s. dept. of educ., interest rate for new direct loan, https://studentaid.ed.gov/about/announcements/interest-rate (“congress has passed and the president has signed the bipartisan student loan certainty act of 2013, which ties federal student loan interest rates to financial markets. under this act, interest rates will be determined each june for new loans being made for the upcoming award year, which runs from july 1 to the following june 30. each loan will have a fixed interest rate for the life of the loan.”); see generally interest rates for federal student loans, edfinancial services, (“in accordance with bipartisan student loan certainty act of 2013, for new loans disbursed on/after july 1, 2013, the method for annually determining the fixed interest rate will be the lesser of a rate based on the high yield of the 10-year treasury note (“t-bill”) auctioned at the final auction held prior to the june 1 preceding the july 1 of the year for which the rate will be effective, plus a statutory add-on, or the interest rate cap as listed below, to be adjusted annually each july 1st.”) (the interest rate listed for plus loans is “a rate equal to the t-bill plus 4.60%; or 10.5%”). 243 see generally u.s. dept. of educ., supra note 241. 244 see generally u.s. dept. of educ., supra note 241 (“the interest rates for federal student loans are determined by federal law. if there are future changes to federal law that affect federal student loan interest rates, we will update this page to reflect those changes. . . . interest rates on federal student loans are set by congress.”). 245 see student loan borrowers’ bill of rights act of 2013, h.r. 3892, 113th cong. (2014) (bill also proposes student loan bankruptcy, statute of limitation, collections, repayment, default, and cancellation reform); student loan borrower bill of rights, s.1803, 113th cong. (2013–2014) (amends the truth in lending act (tila) and the hea); karen weise, unpacking the proposed student loan borrower bill of rights, bloombergbusinessweek, dec. 13, 2013 (“[i]t 2014 columbia journal of race and law 165 default on parent plus loans is of consequence to the parent, not the dependent student.246 limited discharge is available for parent plus loans, and there are currently no means for loan forgiveness.247 further, parent plus loans may be subject to unfavorable treatment in the event of a loan consolidation.248 participation in a loan repayment program may ultimately result in cancellation of any remaining debt after an extended period of payments, but such action may result in negative tax implications.249 the educational debt will still appear on the borrower’s credit report while in repayment status, possibly resulting in the denial of additional credit, despite low or no payments due under the plan.250 b. financial aid eligibility areas for potential plus loan reform include a cap on interest rates and the reduction of fees, especially when considering the profitability of the federal student loan program.251 refinance options, directs the cfpb to draft new rules on the topic [of federal student loan servicing] with the goal of minimizing the cost to borrowers. it also says the department of education must require servicers to send letters to borrowers about their repayment options, which echoes what the department is already doing.”); see also u.s. dept. of educ., income-based plan, http://studentaid.ed.gov/repay-loans/understand/plans/income-based (ibr eligible loans include direct plus loans made to graduate and professional students, and ibr also applies to direct consolidation loans that do not involve an underlying parent plus loan); mark kantrowitz, can parent plus loans get income-based repayment and loan forgiveness?, apr. 8, 2013, http://www.fastweb.com/financial-aid/articles/ 3920-can-parent-plus-loans-get-income-based-repayment-and-loan-forgiveness (“federal parent plus loans are not eligible for income-based repayment. they are, however, eligible for income-contingent repayment if they are included in a federal direct consolidation loan and the borrower entered repayment on or after july 1, 2006. this consolidation loan may then qualify for public service loan forgiveness (pslf).”); ann carrns, a student debt repayment option for some parents, n.y. times (april 9, 2013), http://bucks.blogs.nytimes.com/2013/04/09/a-student-debt-repayment-option-forsome-parents/?_php=true&_type=blogs&_r=0 (“but, parent plus loans can become eligible for the second version — income-contingent repayment — if they are refinanced into a federal direct consolidation loan. the consolidation loan helps the borrower manage debt by refinancing one or more loans into a new loan, resulting in just one, usually lower, monthly payment and extending payment over a longer period of time. (the interest rate on the new loan is based on an average of the rates on the loans that are consolidated, rounded up to the nearest one eighth of a percent.)”). 246 see jensen & marrs, supra note 10, at 60; dana wilkinson, stuck with parent plus loans: the same discharge problems, only more so, bankruptcy law network, http://www.bankruptcylawnetwork.com/stuck-with-parent-plusloans-the-same-discharge-problems-only-more-so/. 247 jensen and marrs, supra note 10, at 60-61 (“certain discharge options exist for parent plus loans, but there is no provision for loan forgiveness. discharge will be granted in the case of the death, but not the disability, of the student for whom the parent borrowed the loan, or for cases when a school closes before the student could complete their program of study. loans certified fraudulently or through the crime of identity theft, the school’s failure to make a required return of loan funds to the lender, or, in rare cases, bankruptcy may also be discharged.”); see also kevin carey, the federal parent rip-off loan, chron. of higher educ., june 3, 2013 (“like all college loans, parent plus debt is all but undischargeable in bankruptcy, putting parents' retirement savings and social security benefits at risk of seizure in cases of default.”). 248 see heather jarvis, how the college cost reduction and access act of 2007 can benefit you: public service loan forgiveness and income-based repayment, 42 clearinghouse rev. 454 (2009). 249 see internal revenue service, publication 970: tax benefits for education (2012); ron lieber, for student borrowers, relief now may mean a big tax bill later, n.y. times, , dec. 15, 2012 at b1; martha neil, ‘tax time bomb’ awaits student loan debtors in forgiveness programs, aba journal (dec. 17, 2012, 1:57 pm), www.abajournal.com/news/ article/tax_time_bomb_awaits_student_loan_debtors_in_forgiveness_programs/; kelly phillips erb, americans replace student loan bills with tax bills, forbes (dec. 22, 2012). 250 see generally in re robinson, 416 b.r. 275, 282 (bankr. e.d. va. 2009). 251 see allie bidwell, proposed student-loan reforms set activists and lawmakers at odds, chron. of higher educ., april 12, 2013; see generally zach carter and joy resmovits, student loan reform fight broader for obama than interest rate debate, huffington post, april 25, 2012; see also congressional budget office, cbo may 2013 baseline projections for the student loan program, http://www.cbo.gov/sites/default/files/cbofiles/attachments/ foreclosures and financial aid vol. 4:2 166 such as those described in the federal student loan refinancing act252 and the bank on students loan fairness act,253 may serve to ease the financial burden on borrowers experiencing economic hardship.254 the loan origination fees that are part of every federal student loan could be eliminated or greatly reduced to enhance college affordability.255 a 1% fee may have been built in as a federal default fee without regard to the repayment history of individual borrowers.256 for parent plus loans, there is a fee that is deducted from each loan disbursement.257 a fee reduction, or perhaps even a reinstatement of the interest rebate that was eliminated for plus loans disbursed as of july 1, 2014, should be considered.258 federal funds could potentially be reallocated to support such initiatives.259 education lending is an income-producing endeavor for the federal government. profit is made on the spread between the government’s borrowing rate, presently around 1%, and the subsidized lending rate, currently at 3.4% for the lowest rate subsidized stafford loan and increasing with other types of loans. this is in addition to the origination fee of 1%. the department of education anticipates that federal subsidized student loan 44198_studentloanprograms.pdf; ruth tam, warren: profits from student loans are ‘obscene’, washington post, july 17, 2013; josh mitchell, does the government profit from student loans?, wall street journal (feb. 15, 2013), http://blogs.wsj.com/economics/2013/02/15/does-the-government-profit-from-student-loans/. 252 federal student loan refinancing act, s. 1066, 113th cong. (2013) (this proposed legislation would automatically change higher interest rate ffelp and direct loans to a fixed 4% rate). 253 bank on students loan fairness act, s. 897, 113th cong. (2013) (a bill to stabilize the interest rate on federally subsidized student loans to offer the same rate of interest as the loans provided to banks through the federal reserve discount window). 245 see anne johnson & tobin van ostern, it’s our interest: the need to reduce student loan interest rates, center for american progress, feb. 13, 2013 (“a federally backed refinancing and loan-modification program would reduce the interest rates paid by borrowers, provide new options and protections to borrowers in the private-lending sector, and stimulate the economy. it would also provide direct relief to the tens of millions of current borrowers, engaging them in the effort to improve our higher-education system . . . . many types of loans should be refinanced, including ffel loans, direct loans, private student loans, and loans such as stafford or plus loans.”). 255 see higher education reconciliation act of 2005, pub. l. no. 109–171(2003); william leith, origination fee and up-front interest rebate reductions for direct subsidized loans and direct unsubsidized loans, feb. 4, 2010, http://www.ifap.ed.gov/eannouncements/020410orgfeeupfrontirrdld.html (“the direct plus loan origination fee is not changing and will remain at 4.0 percent for direct plus loans made to both parent borrowers and graduate/professional student borrowers. in addition, the up-front interest rebate amount is not changing and will remain at 1.5 percent for all direct plus loans.”). 256 see jensen & marrs, supra note 10, at 52 (finding that ffel plus loans had an origination fee of 3.0% with a required 1% default fee, while direct plus loan origination fees amount to 4.0% with no default fee) (“unlike the stafford loan origination fee, the plus loan origination fee is not scheduled to be phased out or reduced in the coming years.”) (citing to the u.s. dep’t of educ.); see generally daniel a. austin, the indentured generation: bankruptcy and student loan debt, 53 santa clara l. rev. 329, 339 (2013). 257 see jan marie combs, financial aid sense: making sense out of financial aid and the college financing process, 31 (2012); u.s. dep’t of educ., student loans overview: fiscal year 2014 budget proposal, http://www2.ed.gov/about/overview/budget/budget14/justifications/s-loansoverview.pdf, at s-3 (“direct loan borrowers are charged an origination fee. stafford and unsubsidized stafford loan borrowers are charged an origination fee equal to 1 percent of principal. plus borrowers are charged a 4 percent origination fee. under the special rules of the sequestration, origination fees for stafford and unsubsidized stafford loans are 1.051 percent, and plus loan origination fees are 4.204 percent.”). 258 see generally budget control act of 2011, 112 pub. l. no. 25, 125 stat. 240 (previously borrowers could obtain an up-front interest rebate under the direct loan program). 259 see generally barack obama, remarks by the president on higher education, april 24, 2009, http://www.white house.gov/the-press-office/remarks-president-higher-education; white house, help americans manage student loan debt, oct. 25, 2011, http://www.whitehouse.gov/the-press-office/2011/10/25/fact-sheet-help-americansmanage-student-loan-debt. 2014 columbia journal of race and law 167 activity (including new loans and consolidation of existing loans) will generate $38.9 billion in revenue for the government in 2012, and approximately $36.8 billion in 2013. the federal government expects to earn 20.08% on each dollar of loans originated in 2013.260 c. bankruptcy protection student loans, including plus loans, are practically non-dischargeable in bankruptcy proceedings.261 the bankruptcy reform act of 1994 amended the bankruptcy code to protect bankruptcy petitioners from being denied federal student aid solely on the declaration of bankruptcy or the filing of bankruptcy.262 however, this prohibition does not prevent the government from denying an application for a federal plus loan due to an adverse credit history that results from bankruptcy.263 such denial does not violate the united states bankruptcy code, but perhaps it should.264 the bankruptcy abuse prevention and consumer protection act of 2005 made it more difficult to discharge both public and private student loans.265 absent a showing of undue hardship as articulated 260 daniel a. austin, the indentured generation: bankruptcy and student loan debt, works.bepress.com, 2012 (citations omitted). 261 see id.; marian wang et al., the parent loan trap, chron. of higher educ., oct. 4, 2012; see generally roger roots, the student loan debt crisis: a lesson in unintended consequences, 29 sw. u. l. rev. 501 (1999–2000); eric pianin, student loans seen as potential ‘next debt bomb’ for u.s. economy, wash. post, march 10, 2012; see, e.g., educ. credit mgmt. corp., bankruptcy and student loans, http://www.ecmc.org/details/bankruptcystudentloans.html. but see in re hedlund, no. 12–35258 (9th cir. 2013), http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/22/12-35258%20web %20-%20corrected.pdf; lance lochner & alexander monge-naranjo, education and default incentives with government student loan programs, nebr working paper, at 28, 2004; jason iuliano, an empirical assessment of student loan discharges and the undue hardship standard, 86 am. bankr. l.j. 495, 496 (2012) (this article purposely refrains from analyzing the process and procedure for evaluating student loan debt before the bankruptcy court, but rather considers bankruptcy as one of several areas of reform as it relates to obtaining bankruptcy protection while maintaining student loans); kathleen pender, student loans’ long-term impact, san francisco gate, may 27, 2013, http://www.sfgate.com/ business/networth/article/student-loans-long-term-impact-4548870.php (“although the appeals court [in hedlund] ruled in the borrower's favor, discharging all but $32,000 of more than $85,000 he owed one student-loan creditor, it took him 10 years and two trips through bankruptcy court and the ninth circuit.”); 262 see bankruptcy reform act of 1994, 11 u.s.c. §313; 11 u.s.c. § 525(c) (2012); see also student financial aid handbook, student eligibility, http://www.ifap.ed.gov/sfahandbooks/attachments/0102vol5ch2eligibility.pdf; finaid, bankruptcy and financial aid, http://www.finaid.org/questions/bankruptcy.phtml; mark kantrowitz, how does bankruptcy affect eligibility for student financial aid?, june 6, 2011, http://www.fastweb.com/financial-aid/articles/3148-how-doesbankruptcy-affect-eligibility-for-student-financial-aid (“a previous bankruptcy can affect eligibility for some education loans but it does not affect eligibility for other forms of financial aid.”). 263 see higher education act of 1965, § 428b, 20 u.s.c. § 1078-2(1965); 20 u.s.c. § 1078-2(a)(1) (2012); 34 c.f.r. § 682.201(c)(2)(ii) (2013); 34 c.f.r. § 685.200(c)(1)(vii)(b). (2013); see also mark kantrowitz, borrowers with a recent bankruptcy are ineligible for the federal plus loan, fastweb (feb. 16, 2012), http://www.fastweb.com/financialaid/articles/3451-borrowers-with-a-recent-bankruptcy-are-ineligible-for-the-federal-plus-loan?page=3. 264 see generally 11 u.s.c. § 525(c); in re taylor, 263 b.r. 139 (n.d. n 2001); in re boylan, 29 b.r. 924 (bankr. n.d.ohio 1983); lea shepard, toward a stronger financial history antidiscrimination norm, 53 b.c. l. rev., 1695 (2012). 265 see bankruptcy abuse prevention and consumer protection act, pub. l. no. 109–8 (2005), 11 u.s.c. § 523(a)(8); see generally leslie treff, “undue hardship” under section 523(a)(8): can the debtor’s student loans be discharged?, lexisnexis bankr. law blog, oct. 29, 2012, http://www.lexisnexis.com/legalnewsroom/bankruptcy/b/bankruptcy -law-blog/archive/2012/08/30/quot-undue-hardship-quot-under-section-523-a-8-can-the-debtor-s-student-loans-bedischarged.aspx (“the debtor's required burden is to show "undue hardship" by the preponderance of the evidence. the burden is rigorous and the hardship must be more than just financial adversity. once the debtor has made its burden, student loan debt will only be discharged if there is a subsequent finding made by a bankruptcy court, prior to the court's discharge of the debt.”). but see consumer fin. prot. bureau, private student loans report (2012), available at foreclosures and financial aid vol. 4:2 168 in brunner,266 or the alternative “totality of the circumstances” approach,267 debtors generally continue to endure the financial strain of student loans after bankruptcy.268 the brunner standard of undue hardship includes an analysis by the federal bankruptcy court that: (1) the debtor[s] cannot maintain, based on current income and expenses, a 'minimal' standard of living for [themselves and dependents] if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor[s have] made good faith efforts to repay the loans.269 the brunner test effectively precludes debtors from discharging student loans, although some relief may ensue.270 http://www.consumerfinance.gov/reports/private-student-loans-report/; private student loan bankruptcy fairness act of 2011, h.r. 2028, 112th cong. (2011) (proposing that private student loans should be dischargeable); see also iuliano,, supra note 261, at 496. 266 see brunner v. new york state higher educ. servs. corp., 831 f.2d 395 (2d cir. 1987); see also 11 u.s.c. § 528(a)(8) (2014). 267 see in re long, 322 f.3d 549, 554 (8th cir. 2003); national consumer bankruptcy rights center, hardship test supports discharge of student loan debt, sept. 23, 2013, http://www.ncbrc.org/blog/2013/09/23/hardship-test-supportsdischarge-of-student-loan/ (“the eighth circuit applies a three-part “totality of the circumstances” test to the question of dischargeability of student loans under which a court must consider 1) the debtor’s past, present, and reasonably reliable future financial resources, 2) the debtor’s reasonable and necessary living expenses, and 3) other relevant facts and circumstances. under this test, the debtor has the burden of proving undue hardship by a preponderance of the evidence.”). 268 see 11 u.s.c. § 523(a)(8)(b); brunner v. n.y. state higher educ. serv. corp., 831 f.2d 395 (2d cir. 1987); see generally treff, supra note 265 (“the exception to discharge was enacted to save the student loan system and to prevent undeserving debtors from obtaining a discharge of their college debts shortly after graduation. . . . although congress did not supply a definition of the phrase "undue hardship," and courts generally have declined to give the phrase a precise definition, one of two tests is employed to ‘examine each factual situation and decide each case on its own merits.’”). 269 see brunner, 831 f.2d; see also u.s. dep’t of educ., forgiveness, cancellation, and discharge, http://studentaid.ed. gov/repay-loans/forgiveness-cancellation; lexisnexis, bankruptcy commentary, “undue hardship” under section 523(a)(8): can the debtor’s student loans be discharged?, aug. 30, 2012, http://www.lexisnexis.com/community/bankruptcylaw/ blogs/bankruptcycommentary/archive/2012/08/30/quot-undue-hardship-quot-under-section-523-a-8-can-the-debtors-student-loans-be-discharged.aspx (“the other test used to determine whether or not a debtor has met its burden, denoted the ‘totality of the circumstances’ test, has been officially adopted by the eighth circuit, and, since 2010, has been unofficially accepted by the courts of the first circuit . . . . no full or partial discharge of student loan debt is available unless all three prongs of the brunner test are met.”); national consumer bankruptcy rights center, hardship test supports discharge of student loan debt, sept. 23, 2013, http://www.ncbrc.org/blog/2013/09/23/hardship-testsupports-discharge-of-student-loan/ (“the seventh and ninth circuits apply the three-part “brunner” test. . . .”). 270 see kent anderson, what is the brunner test for dischargeability of student loans?, bankr. law network, http: www.bankruptcylawnetwork.com/what-is-the-brunner-test-for-dischargeability-of-student-loans/; john o’connor, how can i tell if my student loan debt is dischargeable in bankruptcy?, nat’l bankr. forum, http://www.nationalbankruptcy forum.com/bankruptcy-myths/how-can-i-tell-if-my-student-loan-debt-is-dischargeable-in-bankruptcy/ (citing in re hornsby); nat’l consumer bankr. rights ctr, some hope for student loan debtors, april 19, 2013, http://www.ncbrc. org/blog/2013/04/19/some-hope-for-student-loan-debtors/ (citing kreiger v. ecmc, no. 12–3592 (7th cir. april 10, 2013) and roth v. ecmc, no. 11–1233 (b.a.p. 9th cir. april 16, 2013)); mark kantrowitz, five myths about student loans, wash. post, nov. 18, 2011 (“[a]bout 72,000 federal student loan borrowers filed for bankruptcy in 2008, but only 29 succeeded in obtaining a full or partial discharge of their loans. that’s 0.04 percent.”). but see jason iuliano, an empirical assessement of student loan discharges and the undue hardship standard, american bankruptcy law journal, vol. 86 (2012) (finding that four out of ten bankruptcy petitioners were successful in discharging their student loans while 2014 columbia journal of race and law 169 in general, parents who acquire plus loans on behalf of dependent students are subject to the non-dischargeable student loan provisions of the bankruptcy code.271 accordingly, distressed plus loan borrowers may essentially be penalized in bankruptcy when existing student loans are not discharged, and again when trying to obtain federal financing for education in the future.272 consequently, such result may circumvent the purpose of federal bankruptcy laws.273 bankruptcy may be used as a strategy to leverage financial stability, as opposed to an indication of delinquency.274 filing for bankruptcy may also be used as a tactic to utilize an automatic stay to delay a home foreclosure or extend protection from aggressive debt collection.275 individual bankruptcies are filed, in large part, due to unexpected health and medical issues.276 reasons to file for bankruptcy may thousands of debtors who would have been good candidates to obtain some relief never actually tried to discharge their student loans). 271 see 11 u.s.c. § 525(c) (2012); in re taylor, 263 b.r. 139, 148 (n.d. ala. 2001); see also 11 u.s.c. § 523(a)(8); in re webb, 151 b.r. 804 (1992); in re votruba, 310 b.r. 698 (2004) (noting a split of authority on whether non-student borrowers are subject to the student loan discharge prohibition under the bankruptcy code without a finding of undue hardship). 272 see generally parentplusloan.com, plus loan forgiveness or cancellation, http://www.parentplusloan. com/repayment/forgiveness.php; student loan borrower assistance, student loans & bankruptcy, http://www. studentloanborrowerassistance.org/bankruptcy/. but see usa funds, eligibility for borrowers in bankruptcy, http://www. usafunds.org/usafunds%20resourcelibrary/bankruptcy.pdf (“if the loan was not in default when the student (or parent) filed the bankruptcy action, then the bankruptcy action itself has no effect on the borrower’s eligibility for the stafford, plus, or perkins loan and the school must originate the new loan despite the bankruptcy. the school also must award and disburse other title iv funds for which the student is eligible. if the loan defaulted prior to the filing of the bankruptcy action, then that default causes the student (or parent) borrower to be ineligible for additional title iv funds—of any kind, including loan funds—until the default is resolved.”). 273see generally u.s. courts, bankruptcy basics – process, http://www.uscourts.gov/federalcourts/bankruptcy/ bankruptcybasics/process.aspx (“a fundamental goal of the federal bankruptcy laws enacted by congress is to give debtors a financial ‘fresh start’ from burdensome debts . . . . this goal is accomplished through the bankruptcy discharge, which releases debtors from personal liability from specific debts and prohibits creditors from ever taking any action against the debtor to collect those debts.”) (citing local loan co. v. hunt, 292 u.s. 234 (1934)). 274 see generally li gan et al., strategic or non-strategic: the role of financial benefit in bankruptcy, http://www2.ku.edu/~kuwpaper/2009papers/201303.pdf; john mark wilk, chapter 13 bankruptcy and strategic defaults, avvo, http://www.avvo.com/legal-guides/ugc/chapter-13-bankruptcy-andstrategic-defaults. but see michelle j. white, economics of corporate and personal bankruptcy law, http://weber.ucsd.edu/~miwhite/palgrave-bankruptcy-3.pdf; michelle j. white, what’s wrong with u.s. personal bankruptcy law and how to fix it, 22 reg. 18 (1999). http://www.cato.org/sites/cato.org/files/serials/files/regulation/ 1999/10/bankruptcy.pdf.; online bankruptcy blog, are smart debtors using strategic bankruptcies for help, april 26, 2011, http://onlinebankruptcyblog.com/bankruptcy/smartdebtorsstrategicbankruptcies/; federal trade commission, debt relief or bankruptcy?, consumer information, http://www.consumer.ftc.gov/articles/0084-debt-relief-or-bankruptcy (“both types [chapter 7 and chapter 13] of [personal] bankruptcy may get rid of unsecured debts and stop foreclosures, repossessions, garnishments and utility shut-offs, and debt collection activities. both also provide exemptions that allow you to keep certain assets, although exemption amounts vary by state.”). 275 see ilyce glink & samuel tamkin, is bankruptcy a better option than strategic default?, chi. trib., may 27, 2012; see generally 11 u.s.c. § 362; u.s. courts, bankruptcy basics – glossary, http://www.uscourts.gov/federalcourts/ bankruptcy/bankruptcybasics/glossary.aspx (defining an automatic stay as, “an injunction that automatically stops lawsuits, foreclosures, garnishments, and all collection activity against the debtor the moment a bankruptcy petition is filed.”); online bankr. blog, are smart debtors using strategic bankruptcies for help, april 26, 2011, http://online bankruptcyblog.com/bankruptcy/smartdebtorsstrategicbankruptcies/. but see generally anthony j. ciccone, automatically violating the stay?, in 5 bankr. newsl., no. 3, 1997; west virginia bankruptcy law center, good reasons to delay filing bankruptcy until now: the special timing advantages of dealing with your student loans under chapter 13, feb. 19, 2014, http://wvbankruptcylawcenter.com/blog/?p=548. 276 see david u. himmelstein et al., medical bankruptcy in the united states, 2007: results of a national study, 122 am. j. med., 741–46 (2009); nat’l patient advoc. found., medical debt, medical bankruptcy and the foreclosures and financial aid vol. 4:2 170 also be attributed to divorce and debt mismanagement.277 low and moderate-income individuals may resort to filing for bankruptcy as a lastditch attempt to improve their overall economic outlook.278 legitimate bankruptcy actions should be sustained under the bankruptcy code as revisions are considered to address exorbitant student loan debt.279 in an effort to promote debtor rehabilitation, the federal student loan program should not penalize citizens who seek to exercise their bankruptcy rights and subsequently enroll themselves or their dependents in college to enhance employment prospects.280 proposed legislation, such as the fairness for struggling students act and the private student loan bankruptcy fairness act, may provide financial relief for over-burdened parents and students.281 reasonable forgiveness and responsible lending should impact on patients, (2012); see generally li gan & tarun sabarwal, a simple test of adverse events and strategic timing theories of consumer bankruptcy, nat’l bureau of econ. res., (2005), http://www.nber.org/papers/w11763.pdf?new_window=1. 277 see generally gan & sabarwal, supra note 274; susan johnston, 5 bankruptcy myths debunked, u.s. news & world rep., may 14, 2012; bankr. law, reasons to file bankruptcy, http://www.bankruptcylaw.org/basics/ reasons-file.html. 278 see generally mark r. lindblad et al., coping with adversity: personal bankruptcy decisions of lower-income homeowners before and after bankruptcy reform, ctr. for community capital (2011), http://www.fdic.gov/news/conferences/linblad.pdf; northwest justice project, changes in the bankruptcy law that affect low-income people (2011), http://www.washingtonlawhelp.org/files/c9d2ea3f-0350-d9afacae-bf37e9bc9ffa/attachments/3923c0d7-c8e3-3696-0c02-f70b30863c08/2502810103.pdf.; ian domowitz & robert l. sartain, determinants of the consumer bankruptcy decision, journal of finance, vol. 54, issue 1, pgs. 403 – 420, feb. 1999; adam carasso and signe-mary mckernan, the balance sheets of low-income households: what we know about their assets and liabilities, urban institute, nov. 2007, http://aspe.hhs.gov/hsp/07/poorfinances/ balance/index.shtml (correlating race, ethnicity, and education-level with the assessment of wealth across various subsets of the family structures). 279 see fairness for struggling students act (2013) (treating private student loans similar to other private debt for bankruptcy purposes); dick durbin, as student loan debt surpasses $1 trillion, senators introduce legislation to address crisis, u.s. senate, jan. 23, 2013, http://www.durbin.senate.gov/public/index.cfm/pressreleases?id=adad47a3-9b824c46-b971-57bb9dc11044; josh mitchell, obama administration backs bankruptcy option for some student debt, wall st. j., july 20, 2012, http://online.wsj.com/article/sb10000872396390444097904577537390098445700.html (“sallie mae, the nation's largest private issuer of student loans, said it would back a legislative change that would allow bankruptcy in limited cases.”); see generally david bernstein, seven ways to provide student loan debt relief, nasfaa, oct. 23, 2012 http://www.nasfaa.org/advocacy/perspectives/articles/seven_ways_to_provide_student_loan_debt_relief.aspx (“any proposal that makes it easy to discharge government guaranteed student loans in bankruptcy entails some additional cost to the taxpayer. however, it is easy to envision a less stringent student loan discharge rule that does not significantly increase taxpayer costs. such a rule would rely on objective criteria rather than the subjective "undue hardship" concept. for example, student loan discharge could be limited to individuals with incomes near poverty level, contingent on participation in the ibr program, favor individuals with medical problems, and allow for partial, rather than full, loan cancellation.”). 280 see generally note, ending student loan exceptionalism: the case for risk-based pricing and dischargeability, 126 harv. l. rev. 587; elizabeth warren, student loan scandal fallout, credit slips, june 3, 2007 (referring to bankruptcy abuse prevention and consumer protection act (bapcpa) of 2005 making for-profit student loans non-dischargeable in bankruptcy); mike konczal, two steps toward tackling our current student loan problems, nov. 7, 2011, http://rortybomb.wordpress.com/2011/11/07/two-steps-towards-tackling-our-current-student-loan-problems/. 281 see fairness for struggling students act of 2013, s.114 (“to amend title 11, united states code, with respect to certain exceptions to discharge in bankruptcy.”); private student loan bankruptcy fairness act of 2013, h.r. 532, 113th cong. (2013) (“to amend title 11 of the united states code to modify the dischargeability of debts for certain educational payments and loans.”). but see ending student loan exceptionalism: the case for risk-based pricing and dischargeability, 126 harv. l. rev. 597 (2012), at 597 – 98 (remarking on the unviability of the private student loan bankruptcy fairness act); bill fay, ‘fairness for struggling students act’ is struggling to be heard, debt.org (march 8, 2013), http://www.debt.org/2013/03/08/student-loan-bankruptcy/. 2014 columbia journal of race and law 171 combine to promote accountability and transparency in the student loan industry.282 debtors and creditors must reasonably respond to the expanding student loan bubble as a financial aid crisis looms, especially when considering the negative impact that race and ethnicity may have on a bankruptcy filing regarding student loan debt.283 latinos, and particularly african americans, may endure higher obstacles when scaling over the mountain of student loan debt through bankruptcy.284 accordingly, considerate reform of the bankruptcy code should entail a rigorous assessment of the racial undertones of the disproportionate student loan debt burden across color lines.285 a more flexible approach to debtor rehabilitation when it comes to student loan repayment may amass a higher yield of repayment in lieu of total discharge in bankruptcy.286 the impending reauthorization of the hea presents an opportunity to adequately address the debilitating effects of student loan debt prior to pursuing bankruptcy as a last resort.287 282 see generally ron lieber, last plea on school loans: proving a hopeless future, n.y. times, sept. 1, 2012, at a1; kayla webley, why can’t you discharge student loans in bankruptcy?, time, feb. 9, 2012. 283 see a. michele dickerson, race matters in bankruptcy, 61 wash. & lee l. rev. 1725 (2004), pgs. 1732 – 1733; see also kevin h. morse and barry chatz, bursting our next bubble: the expanding student loan debt crisis, thomson reuters, oct. 5, 2012; see generally daniel a. austin, the indentured generation: bankruptcy and student loan debt, 53 santa clara l. rev. 329; ron lieber, last plea on school loans: proving a hopeless future, n.y. times, at a1, sept. 1, 2012. 284 see generally a. michele dickerson, race matters in bankruptcy, 61 wash. & lee l. rev. 1725 (2004), at 1768 – 1771, 1771 (“because the typical black college student is more likely to come from a lower income household and lowincome students are statistically more likely to default on student loans than other students, blacks also appear to have higher student loan default rates. blacks who attend college tend to receive less money from their parents to pay for their education. because of this, they find it increasingly difficult to increase their wealth by saving for (then buying) a house even after they graduate from college and get high-income jobs because they need to use their income to repay student loans.”) (citations omitted). 285 see generally id.; michele a. dickerson, "race matters in bankruptcy reform." mo. l. rev. 71 (2006): 919. keating, daniel. "from fair driving to fair discharging: racially disparate outcomes in common consumer transactions." am. bankr. inst. l. rev. 20 (2012): 701. 286 see generally suzanne martindale, degrees of debt: stories from student loan borrowers highlight urgent need for reform, consumers union of u.s., inc., nov. 13, 2013, http://consumersunion.org/wp-content/uploads/ 2013/11/degrees-of-debt_2013.pdf; michael d. sabbath, student loans in chapter 7 and chapter 13, http://sbliinc.org/archive/2008/documents/sabbath%20final%20michael%20sabbath's%20sbli%202008%20paper%20r e%20student%20loans.pdf, pgs. 24 – 27 (discussing the effect of the student loan debtor’s choice to enroll in an income contingent repayment plan on an assessment of good faith in bankruptcy proceedings); joe valenti and david a. bergeron, how qualified student loans could protect borrowers and taxpayers, center for american progress (aug. 20, 2013), http://www.americanprogress.org/wp-content/uploads/2013/08/qualifiedstudentloanscc.pdf (noting that parent plus loan borrowers are, in general, precluded from the income-based repayment programs, therefore promoting the use of “qualified student loans [that] would include loans, both federal and private, that have reasonable repayment conditions such as low interest rates and access to favorable forbearance, deferment, and income-based repayment options.”); david bernstein, seven ways to provide student loan debt relief, nasfaa (oct. 23, 2012) http://www.nasfaa.org/advocacy/perspectives/articles/seven_ways_to_provide_student_loan_debt_relief.aspx (“there are two ways debtors can seek student loan debt relief in bankruptcy. first, the debtor could petition the court for a complete or partial discharge of student debt. second, in a chapter 13 bankruptcy the debtor could petition the court for a payment plan that favors the repayment of student loans over the repayment of other unsecured loans. neither remedy is easily obtained.”). 287 see generally suzanne martindale, degrees of debt: stories from student loan borrowers highlight urgent need for reform, consumers union of u.s., inc. (nov. 13, 2013), http://consumersunion.org/wp-content/uploads/2013/11/ degrees-of-debt_2013.pdf, pg. 14 (“starting in 2014, congress will begin the process for reauthorizing the higher education act of 1965 (hea), which sets the framework for federal grant money and student loan programs. the hea reauthorization process presents the key opportunity to strengthen federal aid programs so that financial aid offers, counseling, repayment plans and forgiveness options are more accessible and transparent.”) (citation omitted). foreclosures and financial aid vol. 4:2 172 v. conclusion this article provides insight for the amendment and reauthorization of the higher education act,288 as the evolving educational debt debate continues.289 the politicized nature of the student loan industry contributes to the expansion of the wealth gap in this country.290 alignment of a more educated workforce with less debt is the goal in providing an outline to address the inequities in student aid.291 the current student loan policy economically divides the upper and middle classes, often along racial and ethnic lines.292 higher education attainment contributes to greater household wealth, and ultimately, to a more prosperous nation.293 equitable reform of the financial aid system would provide a more 288 see generally higher education act of 1965, pub. l. 89–329, 79 stat. 1219 (1965) (codified as amended in scattered sections of 20 u.s.c.). 289 see generally student loan affordability act, s. 953, 113th cong. (2013); see also higher education opportunity act (heoa), pub. l. 110–315, 122 stat. 3078 (2008) (codified in scattered sections of 20 u.s.c.) (reauthorizing the higher education act of 1965, as amended); mark compton, if congress doesn’t act, rates for new federal student loans will double, white house (may 31, 2013, 1:42 pm), http://www.whitehouse.gov/blog/2013/05/31/if-congress-doesnt-act-rates-new-federal-student-loans-will-double; kelly field, calls mount for changing how interest rates are set on federal student loans, chron. of higher educ. (apr. 9, 2013), https://chronicle.com/article/calls-mount-for-changing-how/138451/. 290 see peter j. reilly, note for “super wednesday”—either party can occupy the student loan issue, forbes (mar. 7, 2012, 6:56 am), http://www.forbes.com/sites/peterjreilly/2012/03/07/note-for-super-wednesday-either-party-canoccupy-the-student-loan-issue; see generally kathleen ann uradnik et al., college funding and debt, in 1 battleground: government and politics 122 (2011); gary orfield, money, equity, and college access, 62 harv. educ. rev. 337 (1992); see also signe-mary mckernan et al., less than equal: racial disparities in wealth accumulation (2013), available at http://www.urban.org/uploadedpdf/412802-less-than-equal-racial-disparitiesin-wealth-accumulation.pdf; thomas shapiro et al., the roots of the widening racial wealth gap: explaining the black-white economic divide (2013), available at http://iasp.brandeis.edu/pdfs/author/shapirothomas-m/racialwealthgapbrief.pdf (homeownership and a college education are driving factors in the growing racial divide in wealth); rakesh kochhar et al., wealth gaps rise to record highs between whites, blacks hispanics, pew res. center (july 26, 2011), http://www.pewsocialtrends.org/2011/07/26/wealth-gaps-rise-to-record-highs-betweenwhites-blacks-hispanics/. 291 see generally advisory comm. on student fin. assistance, the rising price of inequality: how inadequate grant aid limits college access and persistence (2010), available at http://chronicle.com/items/biz/pdf/acsfa_rpi.pdf; ronald brownstein, a broken ladder, nat’l j., march 9, 2013; amy ellen schwartz, costs and implications, in economic inequality and higher education: access, persistence, and success 157 (stacy dickert-conlin & ross rubenstein eds., 2007). 292 see generally edward p. st. john & eric h. asker, refinancing the college dream: access, equal opportunity, and justice for taxpayers 12 (2003); john brooks slaughter, it’s time to get angry about underserved students, chron. of higher educ. (jan. 23, 2009), http://chronicle.com/article/it-s-time-to-get-angry-about/5837; jacqueline e. king, financing a college education: how it works, how it’s changing 177, 180 (2002); anthony p. carnevale et al., the college payoff: education, occupations, lifetime earnings 12 (2011), available at https://www2.ed.gov/policy/highered/reg/hearulemaking/2011/collegepayoff.pdf (“for african americans and latinos, there are large gaps between earnings when compared to whites, especially at the lowest levels of education attainment.”). 293 see prepare for college, fed. student aid, http://studentaid.ed.gov/prepare-for-college (last visited apr. 26, 2014); beckie supiano, more young adults hold degrees, a boost in the job market, u.s. says, chron. of higher educ. (may 24, 2013), http://chronicle.com/article/more-young-adults-hold/139473/; see generally u.s. dep’t of educ., the condition of education 2013, institute of education sciences (2013); paul taylor et al., is college worth it?: college presidents, public access value, quality and mission of higher education (2011). but see scott carlson, how to assess the real payoff of a college degree, chron. of higher educ. (apr. 22, 2013), http://chronicle.com/article/is-roi-the-right-way-to-judge/138665/; anthony p. carnevale et al., the college payoff: education, occupations, lifetime earnings 2 (2011), available at http://cew.georgetown.edu/collegepayoff (“women earn less at all degree levels, even when they work as much as men. on average, women who work full-time, full-year earn 25 percent less than men, even at similar education levels. at all 2014 columbia journal of race and law 173 sustainable student debt structure.294 innovation in the student loan market is recommended to move towards economic justice.295 several areas of law and society may benefit from student loan reform including consumer protection, bankruptcy, and creditor rights.296 the proactive movement to revise the lending process for student loan borrowers may establish a more level playing field to ultimately build wealth in minority communities through education.297 educational achievement is a factor in building and passing on wealth to future generations, especially in minority and low-income households.298 a college degree may provide families with stability and upward mobility to climb the ladder of success.299 accordingly, the federal government should continue to support higher education and revise the financial aid system in taking steps to lower student debt.300 devastating student debt and the impending student loan bubble threaten the very thread of our economic and moral fiber. easing the mounting student loan debt may serve to restore hope in an educated generation to compete within the global economy.301 our collective future relies upon the levels of educational attainment, african americans and latinos earn less than whites. for example, african americans and latinos with master’s degrees have lifetime earnings lower than whites with bachelor’s degrees.”). 294 see generally arne duncan, making the financial aid system sustainable: remarks of the u.s. secretary of education to the 2013 fsa training conference for financial aid professionals, dec. 4, 2013, http://www.ed.gov/news/speeches /making-financial-aid-system-sustainable (“simply put, our current system of financial aid is unsustainable.”). 295 see generally u.s. gov’t accountability office, student loans: federal web-based tool on private loans would pose implementation challenges and may be unnecessary (2010), available at http://www.gao.gov/assets/320/310215.pdf; duncan, supra note 294. 296 see generally karen cordry, student loan issues come to the fore, nat’l ass’n of att’ys gen., http://www. naag.org/student-loan-issues-come-to-the-fore.php (last visited apr. 26, 2014); the argument, studentloanjustice. org, http://www.studentloanjustice.org/argument.htm. (last visited apr. 26, 2014). 297 see generally u.s. gov’t accountability office, supra note 295; thomas shapiro, et al, the roots of the widening racial wealth gap: explaining the black-white economic divide, inst. on assets and soc. pol., feb. 2013; beth tarasawa & michael dahlin, for whom the pell tolls: how financial aid policies widen the opportunity gap, northwest evaluation ass’n, 2013. 298 see generally dalton conley, being black, living in the red: race, wealth, and social policy in america 8 (1999) (“while legal equality of opportunity might have been established and some income gains made, institutionalized racism persisted nonetheless, and the scars of centuries of overt repression remained.”); bárbara j. robles, exploring the wealth returns to latino higher educational attainment: estimates of work-life earnings profiles, j. of hisp. higher educ., jan. 2009, at 5; maury gittleman and edward n. wolff, racial wealth disparities: is the gap closing?, working paper no. 311, http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.172.4220&rep=rep1& type=pdf. 299 see generally shapiro et al., supra note 297; pew charitable trusts, how much protection does a college degree afford? the impact of the recession on recent college graduates (2013), available at http://www.pewstates.org/uploadedfiles/pcs_assets/2013/pew_college_grads_recession_report.pdf; william elliott & melinda lewis, student loans are widening the wealth gap: time to focus on equity, assets and education initiative (2013); caroline m. hoxby & christopher avery, the mission “one-offs”: the hidden supply of high-achieving, low income students, nat’l bureau of econ. research, working paper no. 18586, dec. 2012; megan woolhouse, wealth gap limits equality of education, bos. globe, july 5, 2013. 300 see generally uradnik, supra note 290, at 128 (noting that despite presidential and congressional efforts towards student loan reform, the cost savings from such actions has yet to translate into further funding for higher education); kantrowitz, supra note 8, at 16 (noting the congressional role in increasing federal grant and loan limits that remained stagnant for a number of years despite the government’s stake in ensuring college access. such increase in aggregate loan limits is necessary because students are reaching the limits faster due to the rising cost of higher education while increasingly becoming ineligible or unable to take out plus loans). 301 see generally cunningham & kienzl, supra note 157; josh freedman, risky business: why student loans are the worst way to fund college, forbes (feb. 10, 2014, 9:00 am), http://www.forbes.com/sites/joshfreedman/2014/02/10/ foreclosures and financial aid vol. 4:2 174 availability of federal student loans to build an educated and highly skilled workforce as a means to boost the american economy.302 equitable student loan reform may particularly serve vulnerable populations, including non-traditional students, by promoting independence and economic prosperity.303 college graduates on average earn more money and contribute more income to federal and state taxes.304 those same tax dollars could be put to work in paying it forward for higher education.305 an increase in federally-mandated student loan disclosures, regulatory oversight and supervision may establish the means to narrow the wealth gap in presenting the 99%306 with an opportunity to attain the same american dream as the top 1%.307 the reauthorization of the higher education act provides an opportunity to realize reasonable student loan debt reform, especially through amendment of the adverse risky-business-why-student-loans-are-the-worst-way-to-fund-college/. 302 see generally price, supra note 54, at 6; the white house, higher education, http://www.whitehouse.gov/issues /education/higher-education (“in higher education, the u.s. has been outpaced internationally. in 1990, the u.s. ranked first in the world in four-year degree attainment among 25-34 year olds; today, the u.s. ranks 12th. we also suffer from a college attainment gap, as high school graduates from the wealthiest families in our nation are almost certain to continue on to higher education, while just over half of our high school graduates in the poorest quarter of families attend college. and while more than half of college students graduate within six years, the completion rate for low-income students is around 25 percent.”). 303 see william elliott & terri friedline, “you pay your share, we’ll pay our share”: the college cost burden and the role of race, income, and college assets, 33 econ. of educ. rev. 134 (2012); see generally institute for higher education policy et al., student loan debt: problems & prospects, at 103, 106, 111–112 (1998); michael a. olivas, undocumented college students, taxation, and financial aid: a technical note, 32 rev. of higher educ., 407 (2009) (noting the problems faced by undocumented immigrants concerning the application and regulation of financial aid); gandara, supra note 11, at 56 (“low-income, first-generation, and minority youth today face many barriers to college access, including inadequate academic preparation, insufficient information about college and the student aid process, rising tuition, and shortfalls in student aid, especially grant aid.”). 304 see sandra baum et al., education pays 2010: the benefits of higher education for individuals and society, college board 11 (2010), http://advocacy.collegeboard.org/sites/default/files/ education_pays_2010.pdf; univ. of wash., what is a college education worth . . . for the citizens, community, employers, state and students, available at http://www.washington.edu/externalaffairs/files/2012/ 10/value_of_education.pdf. 305 see generally mike konczal, could we redirect tax subsidies to pay for free college?, next new deal (dec. 20, 2011), http://www.nextnewdeal.net/rortybomb/could-we-redirect-tax-subsidies-pay-free-college?utm_source= daily+digest&utm_campaign=1aca816a25-dd_5_10_135_10_2013&utm_medium=email&utm_term=0_e4428ba3501aca816a25-10716385; christopher m. mullin & kent phillipe, community college contributions, american association of community colleges (2013), available at http://www.aacc.nche.edu/publications/ briefs/documents/2013pb_01.pdf. 306 see ezra klein, who are the 99 percent?, wash. post (oct. 4, 2011) (describing the occupy wall street movement to include protest against college debt); see generally cong. budget office, trends in the distribution of household income between 1979 and 2007 (2011), available at http://cbo.gov/sites/default/ files/cbofiles/attachments/10-25-householdincome.pdf (“cbo finds that, between 1979 and 2007, income grew by: 275 percent for the top 1 percent of households, 65 percent for the next 19 percent, just under 40 percent for the next 60 percent, and18 percent for the bottom 20 percent.”). 307 see generally justin r. la mort, generation debt and the american dream: the need for student loan reform, 4 harv. l. & pol’y rev. (2010); mitchell f. crusto, obama’s moral capitalism: resuscitating the american dream, 63 u. miami l. rev. 1011 (2008–2009); see also klein, supra note 306 (describing the occupy wall street movement to include protests against college debt); cong. budget office, supra note 306; joseph e. stiglitz, a tax system stacked against the 99 percent, n.y. times (apr. 14, 2013), http://opinionator.blogs.nytimes.com/2013/04/14/a-tax-systemstacked-against-the-99-percent/?_php=true&_type=blogs&_r=0 (“most of the western world has experienced an increase in inequality in recent decades, though not as much as the united states has.”). 2014 columbia journal of race and law 175 credit barrier for graduate and parent plus loans.308 our economic and social well-being ultimately depend on it.309 308 see nelson, supra note 85, http://www.insidehighered.com/news/2013/04/17/2-hearings-congress-takesfirst-steps-toward-rewriting-higher-education-act (“the higher education act, last rewritten in 2008, expires at the end of this calendar year. no one knows when congress will actually finish renewing it or how the deep partisan divide that pervades capitol hill will complicate what is already a lengthy process. last time around, it took five years to renew the act after it expired.”); press release, h.r. educ. & the workforce comm., preparing for higher education act reauthorization, subcommittee explores the role of federal student aid, (apr. 16, 2013), http://edworkforce.house. gov/news/documentsingle.aspx?documentid=329232 (“[m]embers and higher education experts discussed the upcoming reauthorization of the higher education act, and explored the question of whether the federal government should maintain its traditional focus on improving access to higher education, or move toward a system that ties federal aid to student outcomes, job placement, or graduation rates.”). 309 see white house, ensuring that student loans are affordable, available at http://www.white house.gov/sites/default/files/100326-ibr-fact-sheet.pdf (highlighting benefits for student loan lenders enrolling in college for 2014 or later under the health care and education reconciliation act); see generally consumer fin. prot. bureau, student loan affordability: analysis of public input on impact and solutions (2013), available at http://files.consumerfinance.gov/f/201305_cfpb_rfi-report_student-loans.pdf; david a. bergeron & tobin van ostern, a comprehensive analysis of the student-loan interest-rate changes that are being considered by congress, center for am. progress (june 27, 2013) (“an advanced degree provides individuals with a clear path to the middle class, a higher likelihood of meaningful and gainful employment, and lifelong financial and personal benefits. college education also provides for a skilled workforce that is crucial to rebuilding the entire american economy.”). foreclosures and financial aid vol. 4:2 176 columbia journal of race and law vol. 11 july 2021 no. 3 keynote 11th annual symposium strengthened bonds: abolishing the child welfare system and re-envisioning child well-being how i became a family policing abolitionist dorothy roberts* my book shattered bonds: the color of child welfare, published in 2001, documented the racial realities of family policing in america. at the time, more than a half million children had been taken from their parents by child protection services (cps) and were in foster care.1 black families were the most likely of any group to be torn apart. black children made up nearly half of the u.s. foster care population, although they constituted less than one-fifth of the nation’s children.2 that made them four times as likely to be in foster care as white children. nearly all of the children in the foster care system in chicago, where i was living at the time, were black.3 * george a. weiss university professor of law & sociology, raymond pace and sadie tanner mossell alexander professor of civil rights, professor of africana studies, university of pennsylvania. i would like to thank nancy polikoff and jane spinak for organizing this symposium and encouraging me to revisit shattered bonds: the color of child welfare to celebrate the twentieth anniversary of its publication. this keynote is part of a larger book project, torn apart: how the child welfare system destroys black families—and how abolition can build a safer world. i am also grateful to my team of penn law students who provided excellent research assistance for my book project: jacob burnett, vinita davey, lauren davis, madison gray, lindsay grier, allison kruk, bridget lavender, michelle mlacker, claire samuelson, victoria sanchez, and john santoro. 1 dorothy roberts, shattered bonds: the color of child welfare 8 (2001) [hereinafter roberts, shattered bonds]. see also foster care, child trends databank (may 24, 2018), https://www.childtrends.org/indicators/foster-care [https://perma.cc/kl2m554n] (providing additional data and trends in foster care through 2017). 2 roberts, shattered bonds, supra note 1, at 8. 3 id. at 9. 456 colum. j. race & l. [vol. 11:455 i first became aware of foster care’s racial dimension when i was working on my 1997 book killing the black body. i had been researching the prosecutions of hundreds of black mothers across the country for using crack cocaine while pregnant. racist myths about them giving birth to so-called “crack babies”—described as irreparably damaged, bereft of social consciousness, and destined to delinquency—had turned a public health crisis into a crime.4 i saw the prosecutions as part of a long legacy of oppressive policies, originating in slavery, that devalued black women and denied their reproductive freedom. that’s when i discovered that thousands of black mothers were having their newborns taken from them because of positive drug tests and realized that child removal was even more widespread and, in some ways, more devastating than the prosecutions. the system’s racial divide was obvious to me as soon as i started observing child welfare proceedings in chicago. as i later wrote in shattered bonds: spend a day at dependency court in any major city and you will see the unmistakable color of the child welfare system. dependency court is where judges decide the fate of children who have been taken into state custody because their parents are charged with abusing or neglecting them. nearly every family in these urban courts is black. if you came with no preconceptions about the purpose of the child welfare system, you would have to conclude that it is an institution designed to monitor, regulate, and punish poor black families.5 twenty years later, black communities are still targeted for child welfare intervention. although black children were only 14% of children in the united states in 2018, they made up 23% of children in foster care.6 more telling are recent data indicating 4 dorothy roberts, killing the black body: race, reproduction, and the meaning of liberty 150–201 (1997). 5 roberts, shattered bonds, supra note 1, at 6. 6 child population by race in the united states, kids count data ctr., annie e. casey found.,https://datacenter.kidscount.org/data/tables/103child-population-by-race#detailed/1/any/false/1729,37,871,870,573,869,36,868, 867,133/68,69,67,12,70,66,71,72/423,424 [https://perma.cc/kam5-kh8y] (last visited june 10, 2021); children in foster care by race and hispanic origin in the united states, kids count data ctr., annie e. casey found., 2021] spring symposium keynote 457 children’s chances of landing in foster care at some point while growing up. according to a 2014 study, about 15% of native children and 11% of black children could expect to enter foster care before their eighteenth birthday.7 the rate for white children, about one in twenty, was remarkably lower, reflecting america’s racial hierarchy, but still incredibly high.8 i spent time with black mothers whose children had been taken from them and learned that what’s called child protection is no social service system. it’s a multi-billion-dollar apparatus that relies on terrorizing families by taking their children away or weaponizing their children with the threat of removal to impose intensive surveillance and regulation on them. in my introduction to shattered bonds, i concluded: the color of america’s child welfare system is the reason americans have tolerated its destructiveness. it is also the most powerful reason to finally abolish what we now call child protection and replace it with a system that really promotes children’s welfare. 9 in this keynote, i renew my call to abolish the family policing system. this time, however, i don’t argue for replacing it with another reformed state system. we need to build a radically re-imagined way of caring for children and their families. three things happened since the publication of shattered bonds that solidified my abolitionist perspective. there were numerous reform efforts to reduce what became known as racial disproportionality in foster care; the prison abolition movement expanded; and organizing by parents and children impacted by the child welfare system strengthened. since i wrote shattered bonds, “racial disproportionality” has become a buzzword in child welfare research and https://datacenter.kidscount.org/data/tables/6246-children-in-foster-care-byrace-and-hispanic-origin?loc=1&loct=1#detailed/1/any/false/37,867,38/2638, 2601,2600,2598,2603,2597,2602,1353/12992,12993 [https://perma.cc/ewb2wa3b] (last visited june 10, 2021). 7 christopher wildeman & natalia emanuel, cumulative risks of foster care placement by age 18 for u.s. children, 2000–2011, plos one, march 2014, at 1, 5. 8 id. at 5. 9 roberts, shattered bonds, supra note 1, at x. 458 colum. j. race & l. [vol. 11:455 policymaking. state child welfare departments and non-profit organizations have launched numerous projects across the nation to reduce the foster care population, along with its racial disparities.10 over the last two decades, i participated in many of these reform efforts to improve foster care. i served for nine years on a task force to implement the settlement agreement in a class action lawsuit brought in 1998 by children’s rights advocates against the department of social and health services (dshs) in washington state, braam v. state of washington.11 the department’s treatment of children in foster care was so horrendous that the children’s lawyers claimed it violated the state constitution. the named plaintiff, jessica braam, had been tossed among foster homes more than thirty times. in 2004, after six years of litigation, the children’s attorneys reached an agreement with dshs to resolve the lawsuit by handing the problems over to a panel of five mutuallyagreed-upon national experts.12 i accepted an invitation from the children’s attorneys to be one of their choices. the braam oversight panel worked with the dshs children’s administration and the children’s attorneys to develop a complicated plan with outcomes, benchmarks, and action steps to improve health care for foster children, lower cps worker caseloads, enhance foster parent training, and decrease the number of children who ran away from foster care.13 then for 10 see, e.g., child welfare info. gateway, addressing racial disproportionality in child welfare (2011), http://centerforchildwelfare.org/kb/dispr/racial_disproportionality2011.pdf [https://perma.cc/gb7f-8yst]; disproportionality, child welfare league of am., https://www.cwla.org/our-work/advocacy/race-cultureidentity/disproportionality/ [https://perma.cc/h7ta-aqas] (last visited june 10, 2021); annie e. casey found., disparities and disproportionality in child welfare (2011), https://assets.aecf.org/m/resourcedoc/aecfdisparitiesanddisproportionalityinchildwelfare-2011.pdf [https://perma.cc/3qbn-wm6d]. 11 braam settlement agreement, wash. state dep’t child., youth & fams., https://www.dcyf.wa.gov/practice/practice-improvement/braamsettlement-agreement [https://perma.cc/8suz-dlb9] (last visited june 10, 2021). 12 id. 13 see braam performance dashboard, wash. state dep’t child., youth & fams. (mar. 31, 2017), https://www.dcyf.wa.gov/sites/ default/files/pdf/braam0317perdashboard.pdf [https://perma.cc/d892-4xmm] http://centerforchildwelfare.org/kb/dispr/racial_disproportionality2011.pdf 2021] spring symposium keynote 459 nearly a decade, we monitored the state’s progress in performing the action steps, meeting the benchmarks, and achieving the outcomes. after dozens of meetings with administrators and attorneys at a hotel across from the seatac airport, we calculated some progress on some of the measures.14 but, we were unable to fix the long list of deficiencies that harmed children placed in the state’s custody. the braam settlement is not exceptional. over the last thirty years, states across the nation have been sued for running child welfare systems that severely harm children. the child welfare departments in numerous states are currently governed by court-monitored agreements arising out of class action lawsuits requiring them to make massive reforms. while some systems have failed for decades to live up to old settlement agreements, others have been brought to court recently for the same problems endemic to foster care. the illinois department of children and family services is operating under more than ten consent decrees, one of which was filed in 1988.15 as child welfare departments around the country have shrunk their foster care populations in response to fiscal and justice concerns, they have simultaneously expanded their invasion into the private lives of marginalized communities through investigations and coercive service provision. under federal law, every state must identify “mandated reporters,” people who work in professions that put them in contact with children, such as teachers, health care providers, social services staff, and daycare workers, and require them, under certain circumstances, to report suspected child abuse and neglect to government authorities. cps treats these reports like accusations to be investigated, not requests for help. mandated reporting therefore drives parents from the very service (listing some of the braam oversight panel’s outcomes, benchmarks, action steps, and goals). 14 see, e.g., id. (describing some of the progress toward the braam oversight panel’s goals). 15 can you share a summary of child welfare consent decrees?, casey fam. programs (july 10, 2019), https://www.casey.org/consent-decreesummary/ [https://perma.cc/dj4y-essx].see also reform based on litigation, child welfare info. gateway, https://www.childwelfare.gov/topics/ management/reform/litigation/ [https://perma.cc/8qqn-kgcb] (last visited june 10, 2021). https://www.childwelfare.gov/topics/management/reform/litigation/ https://www.childwelfare.gov/topics/management/reform/litigation/ https://www.childwelfare.gov/topics/management/reform/litigation/ 460 colum. j. race & l. [vol. 11:455 providers that are most likely to support them.16 enlisting service providers in cps surveillance deters families from seeking needed assistance and ruins their relationship with families, thereby weakening their capacity to improve children’s welfare. providing services within a punitive family policing system thwarts the potential for schools, health care clinics, and social programs to be caring hubs of community engagement that non-coercively help families meet their material needs.17 and the racial disparities in family surveillance persist. more than half of black children are subjected to a cps investigation at some point during their childhoods.18 i learned that trying to reform the system can strengthen it. we can’t tinker with the flaws of a system designed at its roots to police poor, black, indigenous, and other marginalized families as a way of maintaining a racial capitalist system. also in the twenty years since shattered bonds was published, the prison abolition movement expanded dramatically. some activists mark its launch at an international conference and strategy session—critical resistance: beyond the prison industrial complex—held at the university of california at berkeley in september 1998. formed in 1997, the critical resistance organizing collective gathered more than 3,500 activists, former prisoners, lawyers, and scholars over three days “to address the alarming growth of the prison system, popularize the idea of the ‘prison industrial complex,’ . . . and make ‘abolition’ a practical theory of change.”19 since then, the prison abolition movement has grown into an influential framework and network of organizing across the nation. 16 clara presler, mutual deference between hospitals and courts: how mandated reporting from medical providers harms families, 11 colum. j. race & l. 733 (2021); brianna harvey et al., reimagining schools’ role outside the family regulation system, 11 colum. j. race & l. 575 (2021); mical raz, unintended consequences of mandated reporting laws, pediatrics, mar. 2017, at 1; mical raz, abusive policies: how the american child welfare system lost its way (2020). 17 kelley fong, concealment and constraint: child protective services fears and poor mothers’ institutional engagement, 97 soc. forces 1785 (2018). 18 hyunil kim et al., lifetime prevalence of investigating child maltreatment among us children, 107 am. j. pub. health 274, 277 (2017). 19 critical resistance: beyond the prison industrial complex 1998 conference, critical resistance, http://criticalresistance.org/criticalresistance-beyond-the-prison-industrial-complex-1998-conference/ (last visited june 10, 2021). 2021] spring symposium keynote 461 this past summer, protests erupted around the nation and the world in response to continued police violence against black people. the call to defund police and abolish prisons began to make sense to more and more people. the family policing system is part of the same carceral regime. like the police and prison systems, family policing is designed to maintain racial injustice by punishing families in place of meeting human needs; it targets black, brown, and indigenous families in particular and relies on racist beliefs about family disfunction to justify its terror; and it’s entangled with police, criminal courts, and prisons, forming a coherent carceral machine. as i was drawn to prison abolition, it became clear to me that the movement to abolish police, prisons, and surveillance was profoundly connected to a less visible movement to end family policing. i have found three central tenets that are common to formulations of abolitionist philosophy especially useful.20 first, today’s carceral punishment system can be traced back to slavery and the racial capitalist regime it relied on and sustained. second, the expanding carceral system functions to oppress black and other politically-marginalized people in order to maintain a racial capitalist regime. third, we can imagine and build a more humane and democratic society that no longer relies on caging people to meet human needs and solve social problems. these tenets lead to the conclusion that the only way to transform our society from a slavery-based one to a free one is to abolish the prison industrial complex and create a world where, to answer angela davis’s question, prisons are obsolete.21 prison abolitionists have shown that the pillars of the u.s. criminal punishment system—policing, prisons, and capital punishment—all have roots in racialized chattel slavery. the first police forces in the united states were slave patrols.22 like overseers and slave patrols, jim crow police and private citizens 20 i discuss the importance of prison abolitionist theorizing and its relationship to abolition constitutionalism in dorothy e. roberts, foreword: abolition constitutionalism, 133 harv. l. rev. 1 (2019) [hereinafter roberts, abolition constitutionalism]. 21 see angela y. davis, are prisons obsolete? (2003) (making the case for prison abolition). 22 see, e.g., alex s. vitale, the end of policing 45–48 (2017); olivia b. waxman, how the u.s. got its police force, time, https://time.com/4779112/police-history-origins/ [https://perma.cc/uhr9-5d3p] (may 18, 2017). 462 colum. j. race & l. [vol. 11:455 who abetted them used terror primarily to enforce racial subjugation, not to apprehend people culpable for crimes. today, police serve to control black and other marginalized communities through everyday physical intimidation and by funneling those they arrest into jails, prisons, and detention centers.23 criminal law enforcement aims to control populations rather than judge individual guilt or innocence.24 criminal courts are primarily in the business of managing marginalized communities rather than adjudicating their residents’ culpability. issa kohler-hausmann, for example, argues that new york city criminal courts that handle misdemeanors “have largely abandoned the adjudicative model of criminal law administration—concerned with deciding guilt and punishment in specific cases—and instead operate under . . . the managerial model—concerned with managing people through engagement with the criminal justice system over time,” with no real regard for their culpability for crime.25 we can apply a similar analysis to family policing. the origins of the u.s. child welfare system lie in the forcible separation of enslaved families, the control of emancipated black children as apprentices to former white enslavers, and removal of indigenous children as an instrument of tribal genocide.26 the whole point of the child welfare system has always been to regulate economicallyand racially-marginalized communities. 23 see generally vitale, supra note 22; paul butler, chokehold: policing black men (2017); andrea j. ritchie, invisible no more: police violence against black women and women of color (2017). 24 dorothy e. roberts, supreme court review, foreword: race, vagueness, and the social meaning of order-maintenance policing, 89 j. crim. l. & criminology 775, 788 (1999). this does not mean that prison abolition applies only to innocent or nonviolent people; prison abolitionists aim to create a society where no one is caged. 25 issa kohler-hausmann, misdemeanorland: criminal courts and social control in an age of broken windows policing 4 (2018). 26 roberts, shattered bonds, supra note 1, at 233–36, 248–50. see also laura briggs, taking children: a history of american terror (2020) [hereinafter briggs, taking children]; gwendoline m. alphonso, political-economic roots of coercion—slavery, neoliberalism, and the racial family policy logic of child and social welfare, 11 colum. j. race & l. 471 (2021); laura briggs, twentieth century black and native activism against the child taking system: lessons for the present, 11 colum. j. race & l. 611 (2021) [hereinafter briggs, black and native activism]. 2021] spring symposium keynote 463 these families are targeted precisely because they are marginalized. their status makes them vulnerable to state intervention because of the way child maltreatment is defined to blame them for the harms to children caused by societal inequities. family policing helps to keep them in their subordinated status by disrupting their relationships and communities. and, more broadly, family policing implements an approach to child welfare that buttresses an unequal social structure. prison abolitionists have also taught us that the criminal punishment system’s repressive outcomes don’t result from any malfunction.27 to the contrary, the prison industrial complex works so effectively to contain and control black communities because that’s precisely what it’s designed to do. prison abolitionists have shown us that, therefore, reforms that correct problems perceived as aberrational flaws won’t work. they only help to legitimize and strengthen carceral systems.28 reforming prisons results in more prisons. that’s why they have to be abolished. despite numerous reforms, the family policing system has not changed its punitive ideology or racist impact. by the time i became aware of the family policing system in the 1990s, the political and demographic landscape of child welfare had shifted dramatically from earlier in the century. as a result of demands to be included in child welfare and other government programs, black families were receiving greater attention from the welfare state. but as black children began to fill the government caseloads in the 1960s, public agencies pivoted sharply from providing services to children in their homes to taking children from their parents.29 the total size of the foster care population and the share of black children skyrocketed simultaneously. the number of children in foster care more than doubled in less than fifteen years,30 and federal funding for foster 27 butler, supra note 23, at 5; mariame kaba, we do this ‘til we free us 13 (2021). 28 kaba, supra note 27, at 12–13, 95–96; dylan rodriguez, abolition as praxis of human being: a foreword, 132 harv. l. rev. 1575, 1601 (2019). 29 roberts, shattered bonds, supra note 1, at 176–78; briggs, taking children, supra note 26, at 29–45. 30 christopher a. swann & michelle sheran sylvester, the foster care crisis: what caused caseload to grow?, 43 demography 309, 310 fig.1 (2006) 464 colum. j. race & l. [vol. 11:455 care increased a whopping 20,000%, from $25 million to $5 billion.31 propelling the spike was the massive removal of black children from their homes. given its foundational logic, centered on threatening politically-marginalized families with child removal, the system has absorbed efforts to mitigate its flaws and has continued reproducing its terror. the family policing system can’t be fixed. instead, we need a paradigm shift in the state’s relationship to families—a complete end to family policing by dismantling the current system and re-imagining the very meaning of child welfare and safety.32 prison abolition isn’t just about tearing down the system. an essential aspect of prison abolitionist theory is that eliminating prisons must occur alongside creating a society that has no need for them.33 as prominent activist mariame kaba explains, “[i]t’s the complete and utter dismantling of prisons, policing, and surveillance as they currently exist within our culture. and it’s also the building up of new ways of . . . relating with each other.”34 prisons will only cease to exist when social, economic, and political conditions eliminate the need for them. abolitionists are working toward a society where prisons are inconceivable. (showing the foster care caseload increasing from less than 300,000 in 1985 to nearly 600,000 in 1999). 31 movement for family power, “whatever they do, i’m her comfort, i’m her protector”: how the foster system has become ground zero for the u.s. drug war 18 (2020), https://www.movementforfamilypower.org/ground-zero [https://perma.cc/3xvw-yxkh] (showing an increase in federal funding from $25 million in 1982 to $5 billion in 2003). 32 briggs, black and native activism, supra note 26; miriam mack, the white supremacy hydra: how the family first prevention services act reifies pathology, control, and punishment in the family regulation system, 11 colum. j. race & l. 767 (2021); angela olivia burton & angeline montauban, toward community control of child welfare funding: repeal the child abuse prevention and treatment act and delink child protection from family wellbeing, 11 colum. j. race & l. 639 (2021); kristen weber & bill bettencourt, different year, different jurisdiction, but the same findings: reforming isn’t enough, 12 colum. j. race & l. (forthcoming 2021). 33 angela y. davis, abolition democracy 73–74 (2005). 34 allegra m. mcleod, envisioning abolition democracy, 132 harv. l. rev. 1613, 1617 (2019) (quoting episode 29—mariame kaba, airgo (feb. 2, 2016), https://airgoradio.com/airgo/2016/2/2/episode-29-mariame-kaba). 2021] spring symposium keynote 465 how can prison abolitionists take steps toward dismantling prisons without falling into reformist traps? they have resolved this quandary with the concept of “non-reformist reforms.”35 to be abolitionist, reforms must shrink rather than strengthen “the state’s capacity for violence” and facilitate the goal of building a society without prisons.36 by engaging in non-reformist reforms, abolitionists strive to make transformative changes in carceral systems with the objective of demolishing those systems rather than fixing them. for example: efforts to stop prison expansion by opposing prison construction or shutting down prisons that already exist; end police stop-and-frisk practices; and eliminate the requirement of money bail to release people charged with crimes.37 similarly, we can work to end mandated reporting; to give parents high quality, multidisciplinary legal defense at every stage of the process, including before children are removed; and to fund and engage in community-based mutual aid. the third change that influenced my position on the child welfare system is that radical organizing by parents to end family policing grew, with black mothers at the forefront. i opened shattered bonds with the story of my first meeting with a small group of mothers who called themselves operation moses, for mothers organizing systems for equal services.38 i first met with operation moses on a summer evening in 2000 at st. stephen’s church in englewood, one of chicago’s poorest, most segregated black neighborhoods. after walking down the steps to the church basement, i found a half-dozen black women sitting around a table. the women were strategizing about a city-wide campaign to call attention to the crisis of black children being removed from their homes. they greeted me warmly, grateful to have the ear of an empathetic law professor. i was noticeably pregnant with my fourth child, who was due in september, and we instantly bonded as black mothers concerned for the well-being of our children. at one end of the table was an expanding file stuffed with court papers, newspaper clippings, 35 dan berger, mariame kaba & david stein, what abolitionists do, jacobin (aug. 24, 2017), https://www.jacobinmag.com/2017/08/prison-abolitionreform-mass-incarceration [https://perma.cc/c55s-5gel]. 36 id. 37 roberts, abolition constitutionalism, supra note 20, at 115–17. see also id. at 115 n.716, 116 nn.717–721 (collecting relevant sources). 38 roberts, shattered bonds, supra note 1, at v. 466 colum. j. race & l. [vol. 11:455 and letters. i sat at the other end, so i could face everyone. each woman told me about her battle with the family policing authorities to get her children back. operation moses struggled to offer mutual support to its members as each one fought an uphill battle against a seemingly immoveable behemoth. in the two decades since, parent-led organizations sprang up across the country and began networking with each other. coupled with the rise of parent groups was the development of family defense—lawyers dedicated to representing parents in family policing proceedings.39 today, parents and youth who were involved in the family policing system are calling for transformative change across the nation.40 i think family policing abolitionists also have lessons to share with prison abolitionists. we help to show how carceral logics extend beyond prison walls and police stations—even to systems that ostensibly exist to serve people’s needs, but actually exist to regulate poor, black, brown, and indigenous people who rely on them. we also show how those systems resort to a variety of punitive measures to enforce compliance. like the police and prison systems, family policing is designed to serve white supremacy and maintain racial capitalism by punishing families in place of meeting human 39 see, e.g., kara finck & marcia hopkins, families matter: constructing an anti-racist system from the perspective of youth advocates and interdisciplinary collaboration, 12 colum. j. race & l. (forthcoming 2021); carla laroche, when the new jim crow and jane crow intersect: analyzing right to counsel limitations in the dependency system for mothers who are incarcerated, 12 colum. j. race & l. (forthcoming 2021). 40 see generally dhs/dcfs: give us back our children, every mother network, http://www.everymothernetwork.net/philly/ [https://perma.cc/7q6n-pcwa] (last visited june 10, 2021); jmacforfamilies, https://www.jmacforfamilies.com/ [https://perma.cc/5zk5-q244] (last visited june 10, 2021); rise mag., https://www.risemagazine.org/ [https://perma.cc/anf7-smmy] (last visited june 10, 2021); welfare warriors, http://www.welfarewarriors.org/ [https://perma.cc/k56z-extm] (last visited june 10, 2021); meet tymber hudson: antiracist activist, tymber hudson (sept. 6, 2020), https://tymberhudson.com/2020/09/06/meet-tymberhudson-antiracist-activist/ [https://perma.cc/exl4-6mp5]. see also ashley albert et al., ending the family death penalty; building a world we deserve, 11 colum. j. race & l. 861 (2021); bianca shaw & nora mccarthy, centering parent leadership, 12 colum. j. race & l. (forthcoming 2021). http://www.everymothernetwork.net/philly/ https://www.jmacforfamilies.com/ https://www.risemagazine.org/ http://www.welfarewarriors.org/ 2021] spring symposium keynote 467 needs, and it is entangled with police, criminal courts, juvenile detention, and prisons, forming a coherent carceral machine. warrantless home investigations, intensive monitoring of families by state agents and civilians deputized to report on parents, forcible seizure of children followed by placing them in foster care, and permanent severing of family ties for failing to comply with agency dictates—these tactics all reflect a carceral logic with parallels in the criminal punishment system.41 state cps authorities increasingly use modern surveillance technologies and coordinate with law enforcement agencies to manage regulated populations more efficiently.42 family policing is not just similar to the parts of the carceral regime abolitionists are working to tear down. family policing is part of the carceral regime. the most prominent demand emerging from the summer 2020 protests was to defund the police and reallocate the money to provide health care, education, jobs with living wages, and affordable housing, as part of the broader struggle to abolish the prison industrial complex. as i witnessed the protests, i became increasingly concerned that family policing was absent from most calls to defund the police. some activists even recommended transferring money, resources and authority from police departments to health and human services agencies that handle child protection. these proposals ignored how the family policing system surveils and represses black and other marginalized communities in ways similar to, and coordinated with, the law enforcement systems condemned by the protesters. diverting money and power to child protection agencies would result in even more brutal state intrusion in black communities. linking 911 to the child abuse hotline would increase disruptive child maltreatment allegations and 41 see matt fraidin & shanta trivedi, comment, the state is an unfit parent, 12 colum. j. race & l.f. (forthcoming 2021); tarek z. ismail, the consent of the compelled: child protective agents as law enforcement officers (july 7, 2021) (unpublished manuscript) (on file with author). 42 virginia eubanks, automating inequality 127–73 (2017) (describing how modern screening and assessment tools dramatically affect outcomes for children and families); j. khadijah abdurahman, comment, calculating the souls of black folk: predictive analytics in the new york city administration for children’s services (acs), 11 colum. j. race & l.f. 91 (2021). 468 colum. j. race & l. [vol. 11:455 investigations. even well-meaning recommendations to deploy social workers to conduct “wellness checks” in homes would likely result in increased reporting to cps, expanding the state’s monitoring and separation of families.43 residents of black neighborhoods live in fear of cps agents entering their homes, interrogating them, and taking their children as much as they fear police stopping them in the streets, harassing them, and taking them to jail. rather than divesting from one oppressive system to invest in another, we should work toward abolishing all carceral institutions and creating radically different ways of meeting families’ needs. prison abolitionists should support defunding the family policing system and be careful not to enrich it more with funds divested from the police. we need a coherent political analysis of carceral systems and logics that integrates our understanding of criminal law enforcement and prisons with the state’s surveillance, reassembling, and destruction of families. we need a common mission to bring down all these extensions of the carceral state and a common vision for meeting human needs, preventing violence, and caring for children, families, and communities.44 rather than feel dejected by the lack of real change since shattered bonds was published, i am inspired by the confluence of these three developments that point to the need to integrate 43 mack, supra note 32. 44 see e.g., burton & montauban, supra note 32; lauren van schilfgaarde & brett lee shelton, using peacemaking circles to indigenize tribal child welfare, 11 colum. j. race & l. 681 (2021); victoria copeland, comment, “it’s the only system we’ve got”: exploring emergency response decision-making in child welfare, 11 colum. j. race & l.f. 59 (2021); andy barclay et al., the end of foster care: how new orleans became the first major city to eliminate foster care, 12 colum. j. race & l. (forthcoming 2021); caitlyn garcia & cynthia godsoe, divest, invest, and mutual aid, 12 colum. j. race & l. (forthcoming 2021); kele stewart, re-envisioning child well-being: dismantling the inequitable intersections among child welfare, juvenile justice, and education, 12 colum. j. race & l. (forthcoming 2021); michael wald, beyond cps: building a system to protect and promote the safety and development of children in families facing multiple adversities, 12 colum. j. race & l. (forthcoming 2021); melody webb, taking a multifaceted, empowerment-centered approach to entanglement in the foster care system that focuses on building power to tackle african-american family poverty, 12 colum. j. race & l. (forthcoming 2021); anna arons, comment, an unintended abolition: family regulation during the covid-19 crisis, 12 colum. j. race & l.f. (forthcoming 2021). 2021] spring symposium keynote 469 movements for abolition of all arms of the racist carceral state. we can work collectively to end family policing, re-imagine the very meaning of child welfare and safety, and build a truly caring world. 470 colum. j. race & l. [vol. 11:455 the supreme court’s last 30 years of federal indian law: looking for equilibrium or supremacy? by alexander tallchief skibine* for 187 years, indian nations status in the united states has not been fully developed or consistently approached within the law. they are viewed as domestic dependent nations located within the geographical boundaries of the united states. although chief justice john marshall acknowledged that indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained illdefined. this article examines what has been the role of the supreme court in integrating indian nations as the third sovereign within our federalist system. the article accomplishes this task by examining the court’s indian law record in the last 30 years. the comprehensive survey of indian law decisions indicates that while the tribal win-loss record at the supreme court is improving, the court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. after categorizing the cases between victories and losses, the article divides the cases into categories for analytical purposes. the second half of the article focuses on the interaction between the court and congress concerning the incorporation of tribes as the third sovereign within the federalist system, and ends by arguing that through its * alexander tallchief skibine is the s.j. quinney professor of law, university of utah s.j. quinney college of law. b.a. tufts university; j.d. northwestern university school of law. the author would like to thank professor kirsten carlson for providing critical comments and suggestions on a previous draft of this article. this research was made possible, in part, through generous support from the albert & elaine borchard fund for faculty excellence. 278 columbia journal of race and law [vol. 8:2 disproportionate use of federal common law in its indian law decisions, the court has not attempted to reach a consensus with congress about the place of indian nations within our federalism. i. introduction ................................................................... 280 ii. the court’s record in the last thirty years. ............ 285 a. the record when cases are divided according to subject matter. ................................................................. 286 1. sovereign/political rights: 38.5 cases. .................. 287 2. economic/property rights: 14.5 cases. .................. 289 3. rights derived from the federal-trust relationship: 8 cases. ........................................................................... 291 4. cultural/religious rights: 3 cases. ....................... 292 b. the record based on the type of law used to decide the cases. .......................................................................... 293 1. federal common law decisions: 28.5 cases. ......... 294 2. statutory interpretation cases: 21.5 cases. .......... 297 3. constitutional law: 11 cases. ............................... 299 4. administrative/civil procedure law: 5 cases. ..... 302 c. the record when the cases are considered along time lines. ................................................................................. 303 iii. looking for equilibrium or judicial supremacy? .... 305 a. evaluating congressional response to the court’s decisions. .......................................................................... 305 1. indian gaming. ...................................................... 307 2. tribal criminal jurisdiction over non-indians and non-member indians. .................................................... 308 3. indian land consolidation act: ............................. 309 4. overturning patchak: ............................................ 310 no. 2:277] last 30 years of fed. indian law 279 5. overturning employment division v. smith. ...... 310 6. responding to lyng v. northwest indian cemetery. ................................................................................ 311 b. evaluating the court’s reaction to federal legislation. .................................................................................... 313 1. interpreting the indian gaming regulatory act (igra). ........................................................................... 313 2. interpreting the alaska native claims settlement act (ancsa). ................................................................ 314 3. interpreting indian child welfare act (icwa). .. 315 4. interpreting section 5 of the indian reorganization act (ira). ....................................................................... 315 5. indian land consolidation act. ............................ 316 6. interpreting the indian self determination act. . 317 c. the road not taken ................................................. 318 1. tribal civil jurisdiction over non-members: ......... 318 2. pre-empting state tax jurisdiction in indian country. ................................................................................ 320 3. enacting a seminole fix. ........................................ 321 4. recognizing native hawaiians. ............................ 322 5. overturning carcieri v. salazar. .......................... 322 6. repealing section 5 of the indian reorganization act (ira) or declaring it unconstitutional. ......................... 323 7. abrogating tribal sovereign immunity ................ 323 8. amending the indian child welfare act (icwa) or declaring it unconstitutional. ....................................... 325 d. looking for a different kind of equilibrium through the use of federal common law. ................................... 326 iv. conclusion ................................................................. 333 v. appendix a .................................................................... 335 280 columbia journal of race and law [vol. 8:2 i. introduction since 1831, indian nations have been viewed as domestic dependent nations located within the geographical boundaries of the united states. 1 chief justice marshall attributed that status to the fact that indian tribes had signed treaties in which they acknowledged themselves to be under the protection of the united states, 2 the fact that indian nations were understood to be within the geographical boundaries of the united states, 3 and the description of indian nations as “tribes” and not “foreign nations” within the structure of the constitution. 4 although chief justice marshall acknowledged that indian nations had a certain amount of sovereignty,5 the exact extent of such sovereignty, as well as the place of tribes within the federal system, has remained ill-defined. although the constitution arguably acknowledged the sovereign status of indian nations, 6 the 1 cherokee nation v. georgia, 30 u.s. 1, 17 (1831). although this article will use the terms “indian nations” and “indian tribes” interchangeably, the united states constitution refers only to indian “tribes.” the use of the term “tribes” in the constitution played a key role in cherokee nation v. georgia where the court held that indian tribes were neither states of the union nor foreign nations for the purpose of invoking the original jurisdiction of the supreme court under the constitution. 2 see alex t. skibine, redefining the status of indian tribes within “our federalism”: beyond the dependency paradigm, 38 conn. l. rev. 667, 695 (2006), and alex t. skibine, united states v. lara, indian tribes, and the dialectic of incorporation, 40 tulsa l. rev. 47, 70 (2004). 3 relying on the doctrine of discovery as enunciated in johnson v. m’intosh, 21 u.s. 543, 605 (1823). 4 see u.s. const. art. i., § 8, cl. 3 (the commerce clause): “congress shall have the power the power to regulate commerce among the states, with the foreign nations, and with the indian tribes”. 5 worcester v. georgia, 31 u.s. 515, 557 (1832) (stating that indian nations had “territorial boundaries within which their authority is exclusive.”). for an in-depth analysis of justice marshall’s opinion, see philip p. frickey, marshalling past and present: colonialism, constitutionalism, and interpretation in federal indian law, 107 harv. l. rev 381, 440 (1993). 6 as stated by one scholar “[a]s a textual matter the constitution does recognize tribal sovereignty in the commerce clause and the treaty clause.” ann e. tweedy, connecting the dots between the constitution, the no. 2:277] last 30 years of fed. indian law 281 exact nature of that sovereignty is neither described nor protected in the constitution.7 initially, the supreme court deferred questions concerning the status of indian tribes within the political system of the united states to congress, 8 whose policy towards tribes changed with the times. 9 at first, indian nations were viewed as political entities existing outside of the u.s. political system, and most of the relations between the united states and the tribes were governed through treaties.10 things began to change after 1871, when a law was enacted to prohibit the execution of any additional treaties with indian nations. 11 soon after, the united states embarked on a policy aimed at assimilating individual indians into the mainstream american society. 12 there was no attempt to integrate indian nations into the u.s. political system as sovereign governments, and the expectation was that indian tribes, as political entities, would soon disappear.13 however, in the 1930s congress changed course and made the decision to integrate tribes into the u.s. political system as quasi-sovereign entities.14 the current policy of the united states is to promote tribal self-determination and recognize tribes as self-governing entities with enough marshall’s trilogy, and tribal sovereignty, 42 u. mich. j. l. reform 651, 655–64 (2009). 7 united states v. lara, 541 u.s. 193, 219 (2004) (thomas, j., concurring) (“the tribes, by contrast, are not part of this constitutional order, and their sovereignty is not guaranteed by it.”). 8 see, e.g., united states v. kagama, 118 u.s. 375, 385 (1886); lone wolf v. hitchcock, 187 u.s. 553, 568 (1903) (holding that congressional decisions in the management of tribal property was a political question). 9 see felix cohen, handbook of federal indian law 23–108 (2012 ed.). 10 see vine deloria jr., reserving to themselves: treaties and the powers of indian tribes, 38 ariz. l. rev. 963, 979 (1996). 11 act of march 3, 1871, 16 stat. 466 (1871) (codified as amended at 25 u.s.c. 71 (2000) (“no indian nation of tribe within the territory of the united states shall be acknowledged or recognized as an independent nation, tribe, or power with whom the united states may contract by treaty.”) 12 see cohen, supra note 9, at 71–79. 13 see kathryn e fort, the vanishing indian returns: tribes, popular originalism, and the supreme court, 57 st. louis u. l. j. 297 (2013). 14 see cohen, supra note 9, at 79–84. 282 columbia journal of race and law [vol. 8:2 sovereignty to have a government-to-government relationship with the united states.15 this article examines the role of the supreme court in integrating indian nations as the third sovereign within the u.s. federalist system.16 although the author has written about similar topics in the past, 17 this article looks at the role of the court by surveying and examining the court’s indian law record in the last thirty years. the supreme court’s record of decided cases in the last thirty years indicates that the court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. in an influential article, david getches documented that during the first fifteen terms of the rehnquist court, indian tribal interests only won approximately twenty-three percent of federal indian law cases at the supreme court from 1986 until 2001.18 as the title of his article indicated, getches believed that the dismal tribal record was influenced by the court’s agenda to promote states’ rights, a color-blind agenda, and mainstream values. getches’s findings were later supplemented by matthew fletcher who analyzed the cert process at the supreme court and found that while very few tribal petitions were granted, a disproportionately large number of petitions filed by non-tribal interests aimed at overturning decisions favorable to these tribal interests were granted.19 in a more recent article, bethany berger updated the numbers found by getches by looking at cases decided between 1990 and 2016.20 15 see matthew l.m. fletcher, the supreme court and federal indian policy, 85 neb. l. rev. 121, 135–36 (2006). 16 describing indian nations as “the third sovereign” may have originated with justice o’connor. see justice sandra day o’connor, lessons from the third sovereign: indian tribal courts, 33 tulsa l.j. 1, 6 (1997). 17 see skibine, supra note 2 18 david h. getches, beyond indian law: the rehnquist court’s pursuit of states’ rights, color-blind justice and mainstream values, 86 minn. l. rev. 267, 280–81 (2001). 19 matthew l.m. fletcher, factbound and splitless: the certiorari process as barrier to justice for indian tribes, 51 ariz. l. rev. 933, 981 (2009). 20 bethany berger, hope for indian tribes in the u.s. supreme court, menominee, nebraska v. parker, bryant, dollar general, 2017 u. ill. l. rev. 1901, 1943 (2017) (hereinafter “hope for indian tribes”). no. 2:277] last 30 years of fed. indian law 283 while confirming that the percentage of tribal wins from 1990 until 2015 had not improved since getches’s 2001 article, she saw an improvement in the 2015–2016 term that perhaps indicated that tribal interests could find some light at the end of this anti-tribal judicial tunnel. this article begins with an in-depth examination of the last thirty years of indian law decisions. 21 starting where berger left off, after first categorizing the cases between victories and losses during this time, part ii divides the cases into four general areas within the field of federal indian law: political/sovereign rights, economic rights (treaty/property rights), rights derived from the indian trust doctrine, and cultural/religious rights. the cases are then further divided into four categories: federal common law, statutory interpretation, constitutional law, and procedural law. appendix a lists all the cases in chronological order and also identifies the areas of law and the type of law used to decide each case. part ii ends by assessing the trends in the evolution of the cases and concludes by formulating general principles that can be derived from the tribal win/loss record in these different classifications. part iii focuses on the dialectic between the court and congress concerning the incorporation of tribes as third sovereigns within the federalist system. first, it evaluates congress’s response to supreme court cases. second, it examines at the court’s response to congressional legislation. in a noted article, philip frickey and william eskridge argued that when deciding cases, the court evaluates what congress and the executive branch think about the broader issues involved in such cases and responds accordingly, in effect trying to reach a legal “equilibrium” amongst the three branches of government. as stated by the authors: positive political theory claims that lawmaking institutions are rational, self-interested, 21 my survey starts with the 1987–1988 term and ends with the 2016–2017 term. for another survey, see lawrence r. baca, 40 years of u.s. supreme court indian law cases, 62 apr fed. law 18, 30 (2015) (listing all the cases from 1976 until 2014, classifying them as tribal victories or not, and commenting on the justices who wrote some of the cases). 284 columbia journal of race and law [vol. 8:2 interdependent, and affected by the sequence of institutional interaction. when viewed through this lens, law is . . . an equilibrium, a state of balance among competing forces or institutions. congress, the executive, and the courts engage in purposive behavior. each branch seeks to promote its vision of the public interest… to achieve its goals, each branch also acts strategically, calibrating its actions in anticipation of how other institutions would respond.22 yet when it comes to federal indian law, one has to wonder if the supreme court does not have another agenda. one that does not try to reach an equilibrium with the other two branches of the government about incorporating tribes as the third sovereign within our federalism, but instead aims to impose the court’s own terms for how indian tribes should be integrated into the system. as asserted by judith resnick, when issues become important enough to the government, it will remind “the dominated group of its dependence upon the larger collective and works to bring the smaller group into compliance with federal norms.”23 federal courts will impose federal rules of decisions on either state or tribal courts. 24 although most tribes used to be isolated geographically and lacked the financial resources to have much of an impact on the nonindian world, their access has evolved in the last thirty years. tribes are now meaningful actors, both economically and politically. this could explain the court’s new aggression in taking on indian cases and, some may argue, judicial activism in modifying foundational principles that were established when tribes were not much of a factor in the economic and 22 see william n. eskridge & philip p. frickey, law as equilibrium, 108 harv. l. rev. 26, 28–29 (1994). 23 judith resnick, dependent sovereigns: indian tribes and the federal courts, 56 u. chi. l. rev. 671, 756 (1989). 24 id. at 754 (stating that federal courts have allowed tribes unrestricted authority on certain intra tribal issues such as tribal membership dispute because these “are not decisions of national importance.”) no. 2:277] last 30 years of fed. indian law 285 political life of the united states.25 this may be the reason for what frickey’s observation the court was in the process of “flattening” federal indian law into the broader american public law by importing general constitutional and subconstitutional value into the field.26 some scholars contend that congress has relinquished its leading role in formulating federal indian policy.27 others argue that congress is in fact much more active in enacting laws affecting or concerning indian nations than previously thought. 28 part iii concludes by evaluating the role of the court’s use of federal common law, arguing that the court is not trying to reach an equilibrium with congress but is looking for a different kind of equilibrium. in other words, the court is not attempting to achieve a balance between congress and itself, but is aiming to establish what the court perceives should be the proper equilibrium between tribal interests and the non-indian/state interests. ii. the court’s record in the last thirty years. as reflected in appendix a, the survey takes into account sixty-six cases. 29 the survey shows that of these 25 on foundational principles of federal indian law and how the court is changing them, see david h. getches, conquering the cultural frontier: the new subjectivism of the supreme court in indian law, 84 cal l. rev. 1573, 1655 (1996). 26 philip p. frickey, a common law for our age of colonialism: the judicial divestiture of indian tribal authority over non-members, 109 yale l.j. 1, 73–77 (1999). 27 see fletcher, federal indian policy, supra note 15. 28 see kirsten matoy carlson, congress and indians, 86 u. colo. l. rev. 77 (2015). 29 not included in the total number of cases is south florida water management district v. miccosukee tribe of indians, 541 u.s. 95 (2004). the case involved an indian tribe and a number of environmental organizations bringing a case against a florida water management district for violation of the clean water act. the case was remanded for more factual findings. i do not regard this case as a federal indian law case. it is an environmental law case where one of the plaintiffs happened to be an indian tribe. i have also not included department of the interior v. south dakota, 117 s. ct. 286 (1996). the case involved a challenge to the interior 286 columbia journal of race and law [vol. 8:2 sixty-six cases, tribal interests lost forty-seven and a half cases and won eighteen and a half cases.30 this represents a tribal win/loss ratio of only 28%. however, that percentage is higher than the number reported by getches in his 2001 study (23%),31 and slightly higher than the percentage reported by berger in her more recent study.32 after much debate, i decided to include dollar general v. mississippi choctaw 33 as a tribal win although, perhaps, the case is better described as not-a-loss rather than an outright win: the supreme court split 4–4 thereby affirming the decision below that was in favor of tribal civil jurisdiction over a non-member. however, judicial experts seem to agree that if justice scalia had still been alive, his previous record and questioning during the oral argument indicate that, in all likelihood, he would have voted against the tribal interests.34 a. the record when cases are divided according to subject matter. in this section, the cases are classified according to four subject matter areas that affect tribal rights: sovereign/political rights, economic/property rights, rights derived from the trust relationship, and cultural/religious secretary’s decision to take land in trust for a tribe. without issuing a substantive opinion, the court just issued a gvr. this meant the court granted cert, vacated the decision below, and ordered the case remanded to the secretary (gvr) so that a new decision could be made using newly issued departmental regulations. 30 the half point comes from the fact that in brendale v. confederated tribes, 492 u.s. 408 (1990), the tribe won half the case (tribal jurisdiction over non-member property in the “closed” part of the reservation), but lost the other half of the case (no tribal jurisdiction over non-member property in the “open” section). 31 see getches, beyond indian law, supra note 18. 32 see berger, hope for indian tribes, supra note 20. berger’s percentage of tribal wins from 1990 until 2016 is 27.3%. the minor difference can be explained by the slightly different scope of the years covered in the two surveys. her count is based on years, 1990–2016, while mine is based on supreme court terms, from the 1987–88 term until the 2016–17 term. the difference in the times covered results in a difference in the number of cases considered: fifty-three in her study, sixty-six for this study. 33 dollar general v. mississippi band of choctaw, 136 s. ct. 2159 (2016). 34 see berger, hope for indian tribes, supra note 20, at 1936. no. 2:277] last 30 years of fed. indian law 287 rights. sixty-four35 of the sixty-six total cases identified were considered for categorization based on subject matter. 1. sovereign/political rights: 38.5 cases. this category concerns cases involving the sovereign rights of indians tribes, either to assume jurisdiction over nonmembers, or claim sovereign immunity when being sued in state or federal court. most of the cases decided by the court concerning tribal interests involve, in some manner or another, the political or sovereign rights of the tribes, thus this category contains thirty-eight and a half out of sixty-six cases, making it the largest category. 36 the category also concerns the sovereign rights of states to assume jurisdiction in indian country, or claim sovereign immunity when being sued by tribes, and a few cases involving the application of the indian child welfare act. because this article deems one case as being half a loss and half a win for the tribes,37 the record indicates that tribal interests suffered twenty-six and a half losses while winning twelve cases (31.1%). of the twelve cases won by the tribes, nine reinforced the sovereign rights of indian tribes, while three negatively impacted state power by denying state taxing authority inside indian country. 38 of the nine cases that reinforced tribal sovereign rights were the following: two upheld tribal sovereign immunity from suits,39 one and a half upheld tribal 35 for the purposes of this section, the article does not include lincoln v. vigil, 508 u.s. 192 (2011) or oklahoma tax comm’n v. graham, 489 u.s. 838 (1989). both cases did not easily fit in any of the four categories named above. see discussion, supra notes 142–143. 36 california v. cabazon band of mission indians, 480 u.s. 202 (1987), is being counted here as half a political rights case and half an economic rights case since it denied the states the jurisdiction to regulate gaming in indian country. 37 brendale v. confederated tribes, 492 u.s. 408 (1990). 38 okla. tax comm’n v. citizen band of potawatomi, 498 u.s. 505 (1991); okla. tax comm’n v. sac & fox nation, 508 u.s. 114 (1993); okla. tax comm’n, v. chickasaw nation, 515 u.s. 450 (1995). for the definition of indian country see supra note 47. 39 michigan v. bay mills indian cmty., 124 u.s. 2024 (2014); kiowa tribe v. mfg. techs., 523 u.s. 751 (1998). 288 columbia journal of race and law [vol. 8:2 civil jurisdiction over non-members, 40 one upheld tribal jurisdiction under the indian child welfare act, 41 and one mandated exhaustion of tribal court remedies before a law suit challenging tribal jurisdiction could be filed in federal court.42 two of the more important wins were california v. cabazon band of mission indians, where the court rejected state jurisdiction over indian gaming,43 and united states v. lara, where the court held that supreme court decisions divesting indian tribes of jurisdiction over non-members were decisions based on federal common law and as such could be overturned by congress.44 more recently, one case allowed tribal convictions to be counted for the purpose of federal sentencing; 45 another case held that an indian reservation had not been disestablished.46 the twenty-six and a half losses can be divided between cases extending or recognizing state power over indian country 47 or indian affairs and cases that reduced tribal power. thirteen and a half cases negatively impact tribal sovereignty: seven and a half cases denied tribal civil or criminal jurisdiction over non-members, 48 five cases either 40 dollar gen. v. miss. choctaw, 136 s. ct. 2159 (2016); and half of brendale v. confederated tribes, 492 u.s. 408 (1990). 41 miss. band of choctaw v. holyfield, 490 u.s. 30 (1989). 42 iowa mutual insurance co. v. laplante, 480 u.s. 9 (1987). 43 california v. cabazon band of mission indians, 480 u.s. 202 (1987). 44 united states v. lara, 541 u.s. 193 (2004). 45 united states v. bryant, 136 s. ct. 1954 (2016). 46 nebraska v. parker, 136 s. ct. 1072 (2016). 47 “indian country” is a term of art defined in 18 u.s.c. 1151. it includes all lands within indian reservations as well as land held in trust or restricted fee by the united states for the benefit of indians, and land set aside by the united states for dependent indian communities. 48 duro v. reina, 495 u.s. 676 (1990); south dakota v. bourland, 508 u.s. 679 (1993); strate v. a-1 contractors, 520 u.s. 438 (1997); atkinson trading v. shirley, 532 u.s. 645 (2001); nevada v. hicks, 533 u.s. 353 (2001); plains commerce bank v. long family land & cattle co., 554 u.s. 316 (2008); brendale v. confederated tribes, 492 u.s. 408 (1980); el paso natural gas v. neztsosie, 526 u.s. 473 (1999). no. 2:277] last 30 years of fed. indian law 289 prevented ribes from suing states49 or refused to extend tribal sovereign immunity,50 and one case refused to limit election to the state commission on native hawaiian affairs to native hawaiians.51 thirteen cases can be described as allowing state jurisdiction. while eight of these cases dealt with the authority of states to tax, 52 one extended state criminal jurisdiction in kansas, 53 and three others diminished the extent of indian country, thereby extending state general authority over these areas.54 finally, one case narrowed the application of the indian child welfare act (icwa), implicitly extending state authority over such cases.55 2. economic/property rights: 14.5 cases. this section concerns tribal rights, more easily described as property rights or economic rights. not included in this category are cases where the court was deciding the continued existence of indian country.56 while those cases, 49 seminole tribe v. florida, 517 u.s. 44 (1996); blatchford v. native vill. of noatak, 501 u.s. 775 (1991); and inyo cty. v. paiute shoshone indians, 538 u.s. 701 (2003). 50 lewis v. clarke, 137 s. ct. 1285 (2017) (refusing to extend tribal sovereign immunity to tribal employees committing torts off the reservation but within the scope of their employment); c&l enter. v. citizens band of potawatomi, 532 u.s. 422 (2001) (finding an explicit waiver of tribal sovereign immunity). 51 rice v. cayetano, 528 u.s. 495 (1990). 52 cotton petroleum v. new mexico, 490 u.s. 163 (1989); dep’t of taxation v. milhelm, 512 u.s. 679 (1994); montana v. crow tribe, 523 u.s. 696 (1998); ariz. dep’t of revenue v. blaze constr., 526 u.s. 32 (1999); city of sherrill v. oneida indian nation, 544 u.s. 197 (2005); wagnon v. prairie band potawatomi nation, 546 u.s. 95 (2005); cty. of yakima v. confederated tribes, 502 u.s. 251 (1992); and cass cty. v. leech lake band, 524 u.s. 103 (1998). 53 negonsott v. samuels, 507 u.s. 99 (1993). 54 alaska v. vill. of venetie, 522 u.s. 520 (1998); south dakota v. yankton sioux tribe, 522 u.s. 329 (1988); and hagen v. utah, 510 u.s. 399 (1994). 55 adoptive couple v. baby girl, 133 s. ct. 2552 (2013) (holding that a biological father who never had “custody” of his child is not eligible to take advantage of the act to challenge an adoption proceeding). 56 nebraska v. parker, 136 s. ct. 1072 (2016); alaska v. vill. of venetie, 522 u.s. 520 (1998); south dakota v. yankton sioux tribe, 522 u.s. 329 (1988); and hagen v. utah, 510 u.s. 399 (1994). 290 columbia journal of race and law [vol. 8:2 such as the ones involving the disestablishment of indian reservations have certainly have some economic or property aspect to them, they are primarily about which body may assume jurisdiction over certain issues – the tribes, the states, or the federal government. therefore, they are more correctly categorized as political rights cases. of these fourteen and a half cases, tribal interests won five and a half cases and lost nine, which amounts to a 37.9% tribal win rate. this is the highest tribal win rate of the four categories. the most meaningful tribal victory was california v. cabazon band of mission indians, 57 which continued to interpret p.l. 280 as not allowing state civil regulatory jurisdiction in indian country.58 besides cabazon, the tribal wins include two tribal contract disputes under the indian self-determination act, 59 two cases interpreting treaties or agreements with indian nations, 60 and one indian water rights case, arizona v. california. 61 the tribal losses are eclectic and, therefore, not easily categorized. they range from an early case dealing with the subsistence rights of native alaskans, 62 to a case allowing federal taxation of indian gaming. 63 another three cases dealt with tribal attempts to confirm property rights in minerals,64 or submerged land.65 two other cases disallowed minimal individual interests in land to escheat to tribes, 66 while another applied the statute of limitations to a contract dispute between a tribe and the united states. 67 finally, 57 california v. cabazon band of mission indians, 480 u.s. 202 (1987). 58 the case is included in this section as counting for half a case since it is also included for half a case in the sovereign/political rights section. 59 salazar v. ramah navajo, 132 s. ct. 2181 (2012); cherokee nation v. leavitt, 543 u.s. 631 (2005). 60 minnesota v. mille lacs band of chippewa, 526 u.s. 172 (1999); idaho v. united states, 533 u.s. 262 (2001). 61 arizona v. california, 530 u.s. 392 (2000). 62 amoco prod. v. gambell, 480 u.s. 531 (1987). 63 chickasaw nation v. united states, 534 u.s. 84 (2001). 64 amoco prod. v. southern ute tribe, 526 u.s. 865 (1999). 65 idaho v. coeur d’alene 521 u.s. 261 (1997); united states v. cherokee nation, 480 u.s. 700 (1987). 66 hodel v. irving, 481 u.s. 704 (1987); babbitt v. youpee, 519 u.s. 234 (1997). 67 menominee v. united states, 136 s. ct. 750 (2016). no. 2:277] last 30 years of fed. indian law 291 another case allowed the state of hawaii to continue the sale of lands that were originally ceded by the kingdom of hawaii.68 3. rights derived from the federal-trust relationship: 8 cases. there were eight cases that, in some form or another, interpreted the trust relationship indian nations have with the united states. since 1831, when chief justice marshall in cherokee nation v. georgia refused to consider indian nations as foreign nations and instead described them as domestic dependent nations whose relationship with the united states resembled that of a ward to its guardian,69 the political relationship between the united states and the tribes has been described as a trust relationship. 70 under that relationship, tribes are the beneficiary of the trust and the united states is the trustee. in these eight indian trust doctrine cases, tribal interests won only one case, a breach of trust claim against the united states, 71 and lost seven (a 12.5% winning rate). the tribal losses included three breachof-trust claims. 72 in two other cases, tribes attempted, without success, to apply the indian trust doctrine to statutes and doctrines of general applicability, meaning statutes or doctrines not specifically directed at indians or indian 68 hawaii v. office of haw. affairs, 556 u.s. 163 (2009). 69 cherokee nation v. georgia, 30 u.s. 1, 17 (1831) (holding that indian tribes, being neither foreign nations nor states of the union, could not invoke the original jurisdiction of the supreme court). 70 for a comprehensive treatment of the trust doctrine, see mary christina wood, indian land and the promise of native sovereignty, the trust doctrine revisited, 1994 utah l. rev. 1471 (1994). 71 united states v. white mountain apache tribe, 537 u.s. 465 (2003). 72 united states v. navajo nation, 537 u.s. 488 (2003) (“navajo i”), and united states v. navajo nation, 556 u.s. 287 (2009) (“navajo ii”) (both cases finding that no statutes allowed the navajo nation to successfully sue the united states for breach of trust). united states v. tohono o’odham, 563 u.s. 307 (2011), is included here although the tribe was not allowed to sue the united states for breach of trust in the federal court of claims only because it had already filed a similar case in federal district court. 292 columbia journal of race and law [vol. 8:2 tribes.73 finally, in patchak, the court allowed non-indian individuals to challenge the united states’ decision to take land into trust for indian tribes, 74 while in carcieri v. salazar 75 it restricted the application of section 5 of the indian reorganization act to tribes under federal jurisdiction as of 1934.76 the low rate of tribal wins in this area indicates that the court is construing trust obligations narrowly. 77 the court also does not want to extend general principles of trust law to interpret the extent of the indian trust doctrine unless specifically mandated to do so by congress.78 4. cultural/religious rights: 3 cases. there are only three cases in this category and, unfortunately, tribal interests lost every one of them. two of the cases, matal v. tam 79 and employment division v. smith, 80 were not concerned per se with any doctrines of federal indian law. matal is a non-indian law case holding that the use of arguably racially offensive words in trademarks is protected by the free speech clause of the first amendment. the holding in matal, however, doomed the efforts of indians to force the national football league to abandon the “redskins” trademark.81 employment division v. smith dealt with whether the use of peyote as a sacrament 73 united states v. jicarilla apache nation, 564 u.s. 162 (2011) (refusing to apply the trust doctrine to allow the tribe to benefit from the “fiduciary exception” to the attorney-client privilege); dep’t of interior v. klamath river water users, 532 u.s. 1 (2001) (refusing to apply the trust doctrine to exceptions contained in the freedom of information act (foia). 74 match-e-b-nash-she-wish band v. patchak, 567 u.s. 209 (2012). 75 carcieri v. salazar, 555 u.s. 379 (2009). 76 section 5, codified at 25 u.s.c. 5108, authorizes the secretary of the interior to take land into trust for the benefit of indians. 77 see navajo i, 537 u.s. at 509–13 (finding that neither the indian mineral leasing act or any other acts of congress imposed a trust duty that was specific enough to give rise to a cause of action for the breach of any duty connected to the secretarial approval of the navajo lease with peabody coal corporation). 78 see u.s. v. jicarilla apache nation, 564 u.s. 162 (2011). 79 matal v. tam, 137 s. ct. 1744 (2017). 80 employment division v. smith, 494 u.s. 872 (1990). 81 see pro-football v. blackhorse, 112 f. supp. 3d 439 (2015). no. 2:277] last 30 years of fed. indian law 293 in native american religious practices was protected under the free exercise clause of the first amendment. the court held that criminal laws of general applicability that only incidentally imposed burdens on the exercise of religion cannot be challenged under the free exercise clause of the first amendment. the constitutional principle devised by the court to decide the case affected all religions. the third case, lyng v. northwest indian cemetery, 82 held that nearly all federal actions negatively impacting native american sacred sites located on federal land could not be challenged under the free exercise clause because such actions did not substantially burden the religious practices of native american practitioners.83 b. the record based on the type of law used to decide the cases. this part divides the cases into four categories: federal common law, statutory/treaty interpretation, constitutional law, and procedural law.84 (the relevant federal indian law cases all fit into one of these four categories. in spite of strong arguments from various scholars that evolving norms of international law, 85 such as the 2007 united nations declaration on the rights of indigenous peoples, 86 should provide the rules of decisions in many indian law cases, the court has, unfortunately, not heeded that recommendation.87) with regard to categorization, whether a case is decided using federal common law or constitutional law is usually readily 82 lyng v. northwest cemetery ass., 485 u.s. 439 (1988). 83 id. for an in-depth analysis of the case, see alex tallchief skibine, towards a balanced approached for the protection of native american sacred sites, 17 mich. j. of race & l. 269, 279–88 (2012). 84 this last category is, in effect, a residual one containing all cases not fitting in the first three categories. 85 see robert a. williams jr., like a loaded weapon: the rehnquist court, indian rights, and the legal history of racism in america (2005); philip p. frickey, domesticating federal indian law, 81 minn. l. rev. 31 (1996). 86 declaration on the rights of indigenous peoples, g.a. res. 61/295, 12, u.n. doc. a/res/61/295 (sept. 12, 2007). 87 see kristen a. carpenter & angela r. riley, indigenous peoples and the jurisgenerative moment in human rights, 102 calif. l. rev. 173 (2014). 294 columbia journal of race and law [vol. 8:2 identifiable, although that issue was the subject of at least one supreme court decision in federal indian law.88 1. federal common law decisions: 28.5 cases. historically, the court has left the role of governing the united states relations with the indian nations to congress, so one would think that most of the cases would be about interpreting statutes defining the relationships between the tribes, the states, and the federal government. perhaps surprisingly, the court uses federal common law more than any other type of law when deciding cases involving tribal interests. the survey indicates that twenty-eight and a half cases, out of a total of sixty-six cases, were decided on federal common law grounds.89 of these federal common law cases, tribal interests won nine and lost nineteen and a half cases (a tribal win/loss ratio of 31.5%). of the wins, one case was the 4–4 decision without an opinion in dollar general, 90 two upheld tribal sovereign immunity,91 one allowed a tribe to sue the united states for breach of trust in the management of trust assets,92 and one was half of brendale v. confederated tribes which allowed tribal jurisdiction over non-members in the “closed” parts of the reservation. 93 two of the more meaningful wins came early on. in california v. cabazon band of mission indians, the tribe was allowed to conduct certain gaming activities free of state regulation, 94 and in iowa mutual insurance co. v. laplante, 95 the court reaffirmed and extended the 88 united states v. lara, 541 u.s. 193 (2004) (holding that cases divesting indian tribes of inherent sovereignty are based on federal common law and not constitutional law). 89 the one half is the result of considering california v. cabazon band, 480 u.s. 202 (1987), as half a statutory interpretation case and half a federal common law case. 90 see discussion, supra notes 33–34. 91 michigan v. bay mills indian cmty., 124 u.s. 2024 (2014); kiowa tribe v. mfg. techs., 523 u.s. 751 (1998). 92 united states v. white mountain apache tribe, 537 u.s. 465 (2003). 93 brendale v. confederated tribes, 492 u.s. 408 (1990). 94 california v. cabazon band of mission indians, 480 u.s. 202 (1987). 95 iowa mut. ins. co. v. laplante, 480 u.s. 9 (1987). no. 2:277] last 30 years of fed. indian law 295 requirement that non-members being sued in tribal court should first have to exhaust their tribal court remedies before challenging tribal jurisdiction in federal court. in addition, the tribal percentage of wins reflects three of tribal wins against the oklahoma tax commission, the outcomes of which may have been the result of an overly aggressive anti– tribal agenda on behalf of that commission.96 the tribal loss category can be divided into four subcategories: 1. tribal jurisdiction over non-members; 2. state taxation inside indian reservations; 3. cases interpreting the trust doctrine; and 4. cases involving tribal or state sovereign immunity. tribal interests lost six and a half cases out of seven and a half cases involving tribal jurisdiction over nonmembers.97 tribal interests also lost six cases involving the states’ attempts to tax activities on indian land or indian reservations. 98 judicial interpretation of the trust doctrine also proved detrimental to tribes as tribal interests lost four cases. two cases involved the navajo nation’s attempts to sue 96 see okla. tax comm’n v. citizen band of potawatomi, 498 u.s. 505 (1991); okla. tax comm’n v. sac & fox nation, 508 u.s. 114 (1993); okla. tax comm’n, v. chickasaw nation, 515 u.s. 450 (1995). it is noteworthy that these are the only three cases indian nations won fighting the states’ attempts to tax activities in indian country using the indian preemption doctrine after 1989, the year the court issued its decision in cotton petroleum v. new mexico, 490 u.s. 163 (1989). the author has argued elsewhere that this 1989 opinion profoundly modified the nature of the indian preemption doctrine. see alex tallchief skibine, formalism and judicial supremacy in federal indian law, 32 am. ind. l. rev. 391, 420– 21 (2007–2008). 97 the six cases are: duro v. reina, 495 u.s. 676 (1990); south dakota v. bourland, 508 u.s. 679 (1993); strate v. a-1 contractors, 520 u.s. 438 (1997); atkinson trading v. shirley, 532 u.s. 645 (2001); nevada v. hicks, 533 u.s. 353 (2001); and plains commerce bank v. long family land & cattle co., 554 u.s. 316 (2008). the tribes also lost half of brendale v. confederated tribes, 492 u.s. 408 (1990). 98 cotton petroleum v. new mexico, 490 u.s. 163 (1989); dep’t of taxation v. milhelm, 512 u.s. 679 (1994); montana v. crow tribe, 523 u.s. 696 (1998); ariz. dep’t of revenue v. blaze constr., 526 u.s. 32 (1999); city of sherrill v. oneida indian nation, 544 u.s. 197 (2005); and wagnon v. prairie band potawatomi nation, 546 u.s. 95 (2005). 296 columbia journal of race and law [vol. 8:2 the united states for breach of trust.99 another one involved a tribal attempt to apply the trust doctrine to the freedom of information act. 100 perhaps the most important case, in a jurisprudential sense, is united states v. jicarilla apache nation, 101 which held that the indian tribe could not benefit from the “fiduciary exception” to the attorney-client privilege when attempting to get documents from its trustee, the united states. the importance of this case stems from language in the opinion indicating that, absent specific statutory language, the general law of trust could not be imported to further define the duties of the united states as trustee for the tribes because its role as trustee was so different than that of a regular trustee. 102 tribal interests also lost three cases dealing with sovereign immunity. two cases involved tribal sovereign immunity, 103 and one the sovereign immunity of the states.104 in conclusion, among the cases decided on federal common law grounds, tribes won in the area of tribal 99 united states v. navajo nation, 537 u.s. 488 (2003) (“navajo i”) and united states v. navajo nation, 556 u.s. 287 (2009) (“navajo ii”) (both cases finding that no statutes allowed the navajo nation the right to sue the united states for breach of trust). while both cases could be classified as involving statutory construction in that the issue was whether statutes could fairly be interpreted as allowing a breach of trust action against the united states for mismanagement of trust assets, i view them as being more about applying the indian trust doctrine to the interpretation of statutes than just cases about statutory interpretation. 100 dep’t of interior v. klamath river water users, 532 u.s. 1 (2000) (trust doctrine does not create a tribal exception to foia). 101 u.s. v. jicarilla apache nation, 564 u.s. 162 (2011). 102 id. at 174–77. 103 c.l. enter. v. citizens band of potawatomi indian tribe, 532 u.s. 422 (2001) (holding that the tribe had waived its immunity) and lewis v. clark, 137 s. ct. 1285 (2017) (refusing to extend the sovereign immunity of the tribe to tribal employees committing torts off the reservation while on tribal assignment). 104 idaho v. coeur d’alene, 521 u.s. 261, 287 (1997) (refusing to extend the ex parte young doctrine to allow the tribe to sue the state, stating “it is apparent, then, that if the tribe were to prevail, idaho's sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its treasury. under these particular and special circumstances, we find the young exception inapplicable.”). no. 2:277] last 30 years of fed. indian law 297 sovereign immunity and preventing assertion of tax jurisdiction by oklahoma in the three cases involving the oklahoma tax commission. otherwise, tribal interests lost all six cases involving assertion of tribal jurisdiction over nonmembers. the tribes also lost six cases involving state taxation of activities in indian country. clearly, the court used federal common law mostly to protect non-members from tribal jurisdiction and to promote state sovereignty (through taxation) inside indian country. 2. statutory interpretation cases: 21.5 cases. among the sixty-six cases, twenty-one and a half involved statutory/treaty interpretation. among those, the tribal interests lost fifteen and won six and a half cases or 30.2% of all the cases in this category. it is interesting to note that beside cabazon (counting for half a case),105 all other six tribal wins involved interpretations of indian specific legislation. two involved interpretation of the indian selfdetermination act. 106 two more involved treaty and quasi treaty interpretations. 107 the oldest case decided in this category involved interpretation of the indian child welfare act,108 and the last decided case, nebraska v. parker, involved federal legislation which was alleged to have disestablished an indian reservation.109 105 california v. cabazon band of mission indians, 480 u.s. 202 (1987) (interpreting p.l. 280 as not allowing state civil regulatory jurisdiction over indian gaming). 106 salazar v. ramah navajo chapter, 132 s. ct. 2181 (2012); cherokee nation v. leavitt, 543 u.s. 631 (2005). interestingly, in the seven years separating these two cases, tribal interests did not win one case at the supreme court. 107 minnesota v. mille lacs band of chippewa, 526 u.s. 172 (1999) and idaho v. united states, 533 u.s. 262 (2001). this is labeled a quasi-treaty case because the court had to interpret an 1891 act that ratified two previous tribal agreements made with the coeur d’alene tribe. the court held that congress intended to reserve all submerged land under lakes and rivers when it legislatively ratified these two previous tribal agreements. 108 miss. band of choctaw indians v. holyfield, 490 u.s. 30 (1989). 109 nebraska v. parker, 136 s. ct. 1072 (2016). 298 columbia journal of race and law [vol. 8:2 among the tribal losses, ten cases involved indian specific legislation, and five involved general type of legislation. the indian specific legislation included an interpretation of the indian child welfare act, 110 a tax provision of the indian gaming regulatory act, 111 an interpretation of the indian reorganization act, 112 and an interpretation of the alaska native claims settlement act (ancsa).113 in addition, two cases interpreted the general allotment act and the burke act, to allow state taxation of indian-owned fee patented lands. 114 two other cases interpreted acts opening up indian reservations for nonindian settlers as terminating reservation status.115 another case interpreted a kansas act as conferring criminal jurisdiction on the state. 116 finally, in hawaii v. office of hawaiian affairs, 117 the court held that when congress enacted the native hawaiian apology resolution, it did not intend to strip the state of hawaii of its sovereign power to alienate lands, which had previously been ceded by the 110 adoptive couple v. baby girl, 133 s. ct. 2552 (2013). 111 chickasaw nation v. united states, 534 u.s. 84 (2001). 112 carcieri v. salazar, 555 u.s. 379, 382 (2009) (“for purposes of § 479, the phrase “now under federal jurisdiction” refers to a tribe that was under federal jurisdiction at the time of the statute's enactment. as a result, § 479 limits the secretary's authority to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the ira was enacted in june 1934.”). 113 alaska v. native vill. of venetie, 522 u.s. 520 (1998) (holding that sections of the law reserving lands for indians in fee simple did not create “indian country” as that term is defined in 18 u.s.c. 1151). 114 cty. of yakima v. confederated tribes, 502 u.s. 251 (1992); cass cty. v. leech lake band, 524 u.s. 103 (1998) (holding that when congress makes indian or tribal land freely alienable, it clearly signifies an intent to allow state taxation of such lands). 115 south dakota v. yankton sioux tribe, 522 u.s. 329 (1998) and hagen v. utah, 510 u.s. 399 (1994). 116 negonsott v. samuels, 507 u.s. 99 (1993). 117 hawaii v. office of haw. affairs, 556 u.s. 163, 172 (2009) (“turning to the merits, we must decide whether the apology resolution ‘strips hawaii of its sovereign authority to sell, exchange, or transfer,’ the lands that the united states held in ‘absolute fee,’ and ‘grant[ed] to the state of hawaii, effective upon its admission into the union,’ we conclude that the apology resolution has no such effect.”). no. 2:277] last 30 years of fed. indian law 299 kingdom of hawaii to the united states and then transferred to the state. among the five losses involving general and not indian specific legislation, one case dealt with interpretation of the administrative procedure act and the quiet title act. 118 another case one held that indian tribes were not “persons” for the purposes of being allowed to sue under section 1983.119 one case held that because claims brought under the priceanderson act required federal court jurisdiction, exhaustion of tribal court remedies could not be mandated.120 another one held that the coal lands acts of 1909 and 1910 conveyed everything to the non-indian surface patentees except the coal, which had been reserved to the united states. 121 therefore, it was these patentees and not the tribe who owned the coal bed methane gas under the land. finally one case dealt with the rights of alaska natives under the alaska national interest lands conservation act (anilca).122 in conclusion, tribal interests were less successful in litigating statutory cases than cases based on federal common law. however, tribes won more than half the cases interpreting indian specific statutes. 3. constitutional law: 11 cases. cases decided on constitutional grounds were even more detrimental to tribal interests than the two previously discussed areas – a total of eleven cases. the tribes only won two cases and lost nine (an 18.1% rate of success). 118 mach-e-b-nash-she-wish band v. patchak, 567 u.s. 209 (2012). 119 inyo cty. v. paiute shoshone indians, 538 u.s. 701 (2003). 42 u.s.c. section 1983 provides that any person deprived of rights guaranteed under the constitution or by federal law can sue any person responsible for such deprivation as long as that person was acting under color of state law. 120 el paso natural gas v. neztsosie, 526 u.s. 473 (1999). the priceanderson act regulates liability for nuclear incident. in this case, navajos brought actions relating to injuries suffered as a result of extraction of uranium. the court held that of the price-anderson act’s preemption provision, 42 u.s.c. 2014(hh), provided for exclusive federal court jurisdiction. 121 amoco prod. v. southern ute tribe, 526 u.s. 865 (1999). 122 amoco prod. v. gambell, 480 u.s. 531 (1987). 300 columbia journal of race and law [vol. 8:2 the major tribal win, and some may say, the most significant win during this period, is united states v. lara.123 there the court held that decisions like duro v. reina (implicitly divesting tribes of criminal jurisdiction over nonmembers), were decisions based on federal common law and not constitutional law. as such, these decisions could be reversed or modified by congress.124 the other tribal win was united states v. bryant, 125 holding that convictions obtained in tribal courts could be counted for the purpose of enhancing sentences in federal courts even if the defendants in tribal courts did not benefit from the assistance of counsel. although the case is a win for recognizing the legitimacy of tribal courts within the federal system, some may argue that it is a loss for those who think that assistance of counsel is crucial to ensure a fair conviction for indians being prosecuted in tribal court.126 of the nine losses, three cases concerned first amendment rights. matal v. tam held that the use of arguably racially offensive words in trademarks is protected by the free speech clause of the first amendment. 127 employment division v. smith involved the use of peyote as a sacrament in native american religious practices, and the court held that criminal laws of general applicability that only incidentally impose burdens on the exercise of religion cannot be challenged under the free exercise clause of the first amendment. 128 lyng v. northwest cemetery held that native americans could not use the free exercise clause to challenge federal actions negatively impacting native 123 united states v. lara, 541 u.s. 193 (2004). 124 for a general discussion of the case, see alex t. skibine, united states v. lara, indian tribes, and the dialectic of incorporation, 40 tulsa l. rev. 47 (2004). 125 united states v. bryant, 136 s. ct. 1954 (2016). 126 for a discussion of the issue, see barbara l. creel, the right to counsel for indians accused of a crime: a tribal and congressional imperative, 18 mich. j. race & l. 317, 358 (2013). 127 matal v. tam, 137 s. ct. 1744 (2017). although not per se an indian case, the holding affected the efforts of native americans to make the washington redskins football team change its name. see pro-football v. blackhorse, 112 f. supp. 3d 439 (2015). 128 employment division v. smith, 494 u.s. 872, 885 (1990). no. 2:277] last 30 years of fed. indian law 301 american sacred sites because such actions did not substantially burden the native americans’ religious practices.129 two cases involved property rights under the fifth amendment. hodel v. irving 130 and babbitt v. youpee 131 struck as unconstitutional the escheat provisions of the indian land consolidation act (ilca).132 in both cases, the court held that the escheat provisions amounted to the taking of property without just compensation. 133 it is debatable whether irving and youpee are, strictly speaking, losses for tribal interests as the court held that congress could not, without adequate compensation, make individual indians’ minimal interest in land escheat to the tribes.134 two cases, blatchford v. native village of noatak 135 and seminole tribe v. florida, 136 prevented indian nations from suing states in federal courts because of the states’ sovereign immunity under the eleventh amendment. 137 while undoubtedly very important to indian interests, seminole tribe involved much more of a federal versus state conflict than a tribal versus state one as it held that congress could not use its commerce clause power to abrogate the states’ eleventh amendment immunity. finally, united states v. cherokee nation138 involved the extent of the united states’ navigational servitude under the commerce clause, and rice v. cayetano dealt with the 129 lyng v. northwest cemetery ass., 485 u.s. 439 (1988). 130 hodel v. irving, 481 u.s. 704 (1987). 131 babbitt v. youpee, 519 u.s. 234 (1997). 132 the current version of ilca was codified at 25 u.s.c. 2201 et. seq. 133 irving invalidated the escheat provision of section 207 found at 96 stat. 2519, youpee invalidated the provision at 98 stat. 3173. the indian land consolidation act was further amended as a result of those two cases. the section that replaced former section 207 containing the escheat provisions found unconstitutional was codified at 25 u.s.c. 2206. 134 see baca, supra note 21, classifying the two cases as wins for indians. 135 blatchford v. native village of noatak, 501 u.s. 775, 788 (1991). 136 seminole tribe v. florida, 517 u.s. 44, 72 (1996). 137 the eleventh amendment provides: “the judicial power of the united states shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the united states by citizens of another state, or by citizens or subjects of any foreign state.” 138 united states v. cherokee nation, 480 u.s. 700 (1987). 302 columbia journal of race and law [vol. 8:2 special status of native hawaiians under federal law. 139 it held that a law restricting voting in a state election to “native hawaiians” was a racial classification and therefore unconstitutional under the fifteenth amendment. 4. administrative/civil procedure law: 5 cases. there are only five cases in this category. although tribal interests only won one of these cases, representing only a 20% win rate, this is by far the least important category since the cases here, while very important to the particular parties involved, do not represent important precedents concerning the status of indian nations within the federal system. the one win was in arizona v. california.140 the case was also the most meaningful among the five cases in this category. the decision held that the claim of the tribes and the united states to more water from the colorado river was not precluded by previous decrees, nor was it barred under res judicata principles. among the four losses, one case involved a tribe losing the right to sue in the federal court of claims because the tribe had already filed a substantially similar case in a federal district court. 141 another one held that the administrative procedure act did not prevent the right of an executive agency to reprogram monies from one indian program to another. 142 in oklahoma tax commission v. graham, 143 the court remanded a case (decided in the tribe’s favor at the lower level) but only because the case had initially been improperly removed to federal court. finally, in menominee v. united states, 144 the court held that the statute of limitation contained in the contract dispute act was 139 rice v. cayetano, 528 u.s. 495 (2000). 140 arizona v. california, 530 u.s. 392 (2000). 141 united states v. tohono o’odham, 563 u.s. 307 (2011). 142 lincoln v. vigil, 508 u.s. 182 (1993). 143 oklahoma tax comm’n v. graham, 489 u.s. 838 (1989). 144 menominee v. united states, 136 s. ct. 750 (2016). no. 2:277] last 30 years of fed. indian law 303 applicable to a contract dispute between a tribe and the united states involving the indian self determination act. c. the record when the cases are considered along time lines. it is important to note that the overall percentage of tribal wins in the last thirty years, while not strong (28%), has increased since getches published his 2001 survey (23%).145 however, if one looks at the percentages of tribal wins when the cases are divided into ten-year increments, the future looks brighter for tribal interests. from the 1987–1988 term to the 1996–1997 term, the court adjudicated twenty-five cases. of these, eighteen and a half were tribal losses, and six and a half were wins,146 amounting to a 26% tribal win rate. from the 1997–1998 term to the 2006–2007 term, the court also heard twenty-five cases. the tribal interests lost eighteen cases, while winning seven.147 this amounts to a 28% tribal 145 see getches, beyond indian law, supra note 18. 146 the two most important wins for the tribes during that decade were california v. cabazon band, 480 u.s. 202 (1987) (no state jurisdiction over tribal gaming) and mississippi choctaw v. holyfield, 490 u.s. 30 (1989) (icwa). meaningful losses include cotton petroleum v. new mexico, 490 u.s. 163 (1989) (state taxation); strate v. a-1 contractors, 520 u.s. 438 (1997) (no tribal civil jurisdiction over non-members); duro v. reina, 495 u.s. 676 (1990) (no tribal criminal jurisdiction over non-member indians); seminole tribe v. florida, 517 u.s. 44 (1996) (state retained sovereign immunity in spite of igra); and lyng v. nw. indian cemetery, 485 u.s. 439 (1988) (no constitutional protection for indian sacred site located on federal land). 147 among the more meaningful tribal wins in this decade are kiowa tribe v. manufacturing technologies, 523 u.s. 751 (1998) (tribal sovereign immunity); minnesota v. mille lacs band, 526 u.s. 172 (1999) (treaty rights); and united states v. lara, 541 u.s. 193 (2004) (congressional power to overturn implicit divestiture cases). important losses include nevada v. hicks, 533 u.s. 353 (2001) (no tribal civil jurisdiction over non-members); alaska v. village of venetie, 522 u.s. 520 (1998) (land owned in fee by indians pursuant to ancsa not indian country); united states v. navajo nation, 537 u.s. 488 (2003) (no u.s. liability for breach of trust in management of tribal natural resources); atkinson trading v. shirley, 532 u.s. 645 (2001) (no tribal civil jurisdiction over non-members); and rice v. cayetano, 528 u.s. 495 (2000) (classification of native hawaiians for the purpose of voting in state elections are racial classifications reviewed under strict scrutiny). 304 columbia journal of race and law [vol. 8:2 win rate. from the 2007–2008 until the 2016–2017 term, there was only sixteen cases. eleven cases were tribal losses, and five tribal wins.148 this represents a 31.2% tribal win rate. although the tribal win rate increased in each successive decade, the pro-tribal trend is even more striking when one compares the first fifteen years (1987–1988 term until the 2000–2001 term) with the last fifteen years (2001–2002 term until the 2016–2017 term.) the tabulation shows that there were forty-three cases decided in the first fifteen years with the tribal interests losing thirty-two and a half cases while only winning ten and a half cases, representing a 24.4% rate of tribal wins. however, in the last fifteen years, there were only twenty-three cases. however, of these twenty-three cases, tribal interests won eight cases while losing fifteen. this represents a 34.7% rate of tribal wins and may indicate that, for the tribes, the worst is behind them and there might indeed be a light at the end of this anti tribal sovereignty tunnel. besides the court being receptive to the idea of including indian tribes as the third sovereign within our federalist system, other factors may have contributed to this rather abrupt drop in the number of cases decided as well as the increase in the percentage of tribal wins. one of these factors could be the creation of the tribal supreme court project, a joint effort by the native american rights fund and the national congress of american indians, to more closely monitor and control the kind of cases appealed to the supreme court by tribal interests.149 * * * 148 meaningful tribal wins in this decade include michigan v. bay mills, 134 s. ct. 2024 (2014) (tribal sovereign immunity) and nebraska v. parker, 136 s. ct. 1072 (2016) which is included as an important case because it may represent a turning point on how the court determines whether indian reservations have been disestablished. important tribal losses include pains commerce bank v. long family land & cattle, 554 u.s. 316 (2008) (no tribal civil jurisdiction over non-members); u.s. v. jicarilla apache tribe, 564 u.s. 162 (2011) (trust doctrine not applicable to interpret foia); adoptive couple v. baby girl, 133 s. ct. 2552 (2013) (applicability of icwa); and carcieri v. salazar, 555 u.s. 379 (2009) (section 5 of ira only applicable to tribes under federal jurisdiction as of 1934). 149 see berger, hope for indian tribes, supra note 20, at 1909–11. no. 2:277] last 30 years of fed. indian law 305 in conclusion, the court invokes federal common law more frequently than any other type of law in deciding federal indian law cases. in addition, cases involving tribal political rights are more numerous than cases in any other category and federal common law is used most often in deciding such political rights cases. although the tribes won 31.2% of cases concerning political rights based on federal common law, the odds of the tribes winning political rights cases based on statutory interpretation in this area was even less: two out of nine (22%). in a somewhat curious twist, the tribes won two out of five (40%) of the cases based on constitutional law affecting tribal political rights.150 however, the tribes’ chance of winning cases based on federal common law, which stands at 28%, is not as good as winning cases based on statutory construction, which have a 31.7% winning rate. within the statutory construction category, tribal interests have the best chance of winning cases dealing with interpretation of indian specific legislation as tribes won six of the sixteen cases in this area (37.5% of the cases). finally, the tribal win-loss ratio has improved in every decade since the 1986–1987 supreme court term. iii. looking for equilibrium or judicial supremacy? a. evaluating congressional response to the court’s decisions. congress is said to have “plenary power” over indian affairs, 151 and through the constitution, mostly through the 150 the tribes won in united states v. lara and united states v. bryant while losing in seminole tribe v. florida, 517 u.s. 44 (1996); rice v. cayetano, 528 u.s. 495 (1990); and blatchford v. native village of noatak, 501 u.s. 775 (1991). the winning percentage here is curious because for all categories, the tribes lost nine of the eleven cases involving constitutional law. see discussion, supra notes 123–139. 151 for instance, in cotton petroleum v. new mexico, 490 u.s. 163, 192 (1989), the court stated, “the central function of the indian commerce clause is to provide congress with plenary power to legislate in the field of indian affairs.” 306 columbia journal of race and law [vol. 8:2 indian commerce clause, it is vested with primacy over indian affairs.152 recently, one scholar has argued that it is normatively right for congress to take the leading role in indian affairs because it has the better institutional capacity to formulate sound policies governing federal relations with indian nations,153 while another scholar demonstrated that congress is still very active in formulating federal indian policy. 154 others have argued, however, that congress has ceded its leading role to the court. 155 consistent with the views expressed in law as equilibrium, 156 it is true that congress and the court, and at times the executive branch, are involved in a kind of ongoing dialogue with each other. as once stated by justice ginsburg: “judges . . . participate in a dialogue with other organs of government.” 157 this section analyzes the interplay between the court and congress in the field of federal indian law to understand the nature of the dialogue and determine if the court has taken control over such dialogue.158 fletcher has persuasively shown that, generally speaking, “modern congressional statements” in federal indian policy support tribal self-government, tribal tax authority and economic development, as well as tribal 152 the commerce clause, article i, section 8, clause 3, of the u.s. constitution provides that “congress shall have the power . . . to regulate commerce . . . with the indian tribes.” for a thorough look at the various sources of congressional power over indian affairs, see gregory ablavsky, beyond the indian commerce clause, 124 yale l.j. 1012 (2015). 153 see michalyn steele, comparative institutional competency and sovereignty in indian affairs, 85 u. colo. l. rev 759 (2014). 154 carlson, congress and indians, supra note 28, at 148–49. 155 see fletcher, federal indian policy, supra note 15. 156 see eskridge & frickey, law as equilibrium, supra note 22. 157 ruth bader ginsburg, speaking in a judicial voice, 67 n.y.u. l. rev. 1185, 1198 (1992). see also lawrence friedman, the constitutional value of dialogue and the new judicial federalism, 28 hasting const. l. q. 93 (2000); maimon schwarzchild, pluralism, conversation, and judicial restraint, 95 nw. u. l. rev. 961 (2001) (discussing when court decisions encourage democratic conversations with the other branches.) 158 for a comprehensive study of the dynamic relationship between the court’s decision and congress on all issues, see william n. eskridge jr., overriding supreme court statutory interpretation decisions, 101 yale l.j. 331 (1991). no. 2:277] last 30 years of fed. indian law 307 sovereign immunity and the development of tribal courts.159 this section focuses only on legislation enacted specifically as a response to a supreme court decision in order to evaluate congressional willingness/effort to retain primacy over indian affairs and affirm its policy of tribal self-determination. although many pieces of tribe-specific legislation, whether it be land claims or water rights settlements, are somewhat related to former supreme court decisions, this section does not analyze all congressional legislation that may have been only partially influenced by supreme court decisions.160 1. indian gaming. perhaps the most interesting case study involving the interaction between the three government branches in the field of indian affairs is in the area of indian gaming. although congress had been working on legislation to regulate indian gaming for some time, it was only after the court issued its 1987 decision in california v. cabazon161 that congress found the political will to enact the indian gaming regulatory act of 1988 (igra).162 eight years after igra was enacted into law, the court had the opportunity to respond to the legislation and declared the part of igra allowing tribes to sue states for failing to negotiate tribal state compacts in 159 see fletcher, federal indian policy, supra note 15, at 140–50. 160 not included, for instance, are the twenty-seven tribal legislative water rights settlements enacted since 1978. for sure, supreme court cases, such as winters v. united states, 207 u.s. 564 (1908), and arizona v. california, 373 u.s. 546 (1963) that defined the extent of tribal water rights, and cases such as arizona v. san carlos apache tribe, 463 u.s. 545 (1983), allowing for state court adjudication of tribal water rights, played an important role in influencing the states and the tribes to settle their water rights dispute through legislation. however, these cases were all decided before 1986 and it would be inaccurate to say that these legislative settlements were a direct response to such cases. for an analysis of such water rights settlements, see robert t. anderson, indian water rights, practical reasoning, and negotiated settlements, 80 cal. l. rev. 1133 (2010). 161 california v. cabazon band of mission indians, 480 u.s. 202 (1987). 162 pub. l. 199-497, 102 stat. 2467 (1988) (codified at 25 u.s.c. 2701bet seq.). for comprehensive analysis, see franklin ducheneaux, the indian gaming regulatory act: background and legislative history, 42 ariz. st. l. j. 99 (2010); robert n. clinton, enactment of the indian gaming regulatory act of 1988: the return of the buffalo to indian country or another federal usurpation of tribal sovereignty, 42 ariz. st. l. j. 17 (2010). 308 columbia journal of race and law [vol. 8:2 good faith to be unconstitutional.163 while that decision did not generate a reaction from congress in the field of indian gaming legislation, the executive branch responded by enacting new regulations allowing tribes to bypass an assertion of state sovereign immunity by allowing them to ask the secretary of the interior to issue class iii gaming procedures.164 so far, the power of the secretary to issue such procedures has been struck down by two circuit courts,165 but the supreme court has not yet decided to take a case challenging the validity of the regulations.166 2. tribal criminal jurisdiction over nonindians and non-member indians. congress reacted to the court’s decisions to divest tribes of criminal jurisdiction over non-member indians and non-indians through legislation. in 1991, congress enacted the so-called duro fix, 167 overturning the court’s 1990 decision in duro v. reina that held that tribal criminal jurisdiction over non-member indians had been implicitly divested.168 later on, congress eventually enacted the 2013 vawa amendments. 169 these amendments partially overturned oliphant v. suquamish indian tribe, 170 the decision that had found tribal criminal jurisdiction over nonindians implicitly divested. the vawa amendments allowed 163 seminole tribe v. florida, 517 u.s. 44 (1996) (holding that congress could not use its indian commerce clause power to abrogate the states’ eleventh amendment sovereign immunity.) 164 the final regulations were issued in 1999. see 64 fed. reg. 17, 535-36, codified at 25 c.f.r. 291. 165 see texas v. united states, 497 f.3d 491 (5th cir. 2007), cert. denied, 129 c. ct. 32 (2008) and new mexico v. dep’t of the interior, 854 f.3d 1207 (10th cir. 2017). 166 for an argument supporting the secretary’s authority to issue such regulations, see alex tallchief skibine, indian gaming and cooperative federalism, 42 ariz. st. l. j. 253, 293–96 (2010) (criticizing the fifth circuit opinion). 167 pub. l. no. 102-137, 105 stat 646 (codified as amended at 25 u.s.c. 1301). 168 duro v. reina, 495 u.s. 676 (1990). 169 codified at 25 u.s.c. 1304. 170 oliphant v. suquamish indian tribe, 435 u.s. 191 (1978). no. 2:277] last 30 years of fed. indian law 309 indian tribes to re-acquire criminal jurisdiction over some non-indians committing acts of domestic violence against indians residing in indian country.171 there was a legal challenge to congress’s power to overturn or modify cases such as duro and oliphant, but the court held in united states v. lara that “the statute seeks to adjust the tribes' status. it relaxes the restrictions, recognized in duro, that the political branches had imposed on the tribes’ exercise of inherent prosecutorial power.” 172 therefore, congress could modify the results in such cases.173 whether non-members can be prosecuted in tribal courts without the full protection of the united state constitution has not yet been decided.174 3. indian land consolidation act:175 the court twice struck as unconstitutional provisions of the indian land consolidation act (ilca), 176 allowing very small interests in land owned by tribal members to escheat to their tribe under certain conditions. each time, congress reacted by enacting a new version of the law. the first ilca was enacted in 1983 and its escheat provision was declared unconstitutional in hodel v. irving.177 an amended version attempting to resolve the constitutional issues was enacted in 171 tribes wishing to re-acquire such jurisdiction would have to meet a number of conditions. for background and implementation of the 2013 vawa amendments, see angela r. riley, crime and governance in indian country, 63 ucla l. rev. 1564 (2016). 172 united states v. lara, 541 u.s. 193, 200 (2004). 173 for in depth analysis of the decision and its background, see bethany r. berger, united states v. lara as a story of native agency, 40 tulsa l. rev. 5 (2004) and alex tallchief skibine, united states v. lara, indian tribes, and the dialectic of incorporation, 40 tulsa l. rev. 48 (2004). 174 see note, tribal criminal jurisdiction after united states v. lara: answering the constitutional challenge to the duro fix, 93 cal. l. rev. 847 (2005). see also samuel e. ennis, reaffirming indian tribal court criminal jurisdiction over non-indians: an argument for a statutory abrogation of oliphant, 57 ucla l. rev. 553 (2009). 175 25 u.s.c. 2201–2219 176 pub. l. 97-459, 96 stat. 2517. 177 hodel v. irving, 481 u.s. 704 (1987). 310 columbia journal of race and law [vol. 8:2 1984 but declared unconstitutional in babbitt v. youpee.178 a third version was enacted in 2000, but was replaced by the 2004 american indian probate reform act before it could be implemented.179 4. overturning patchak: following the court’s decision in mach-e-be-nashshe-wish v. patchak, 180 which had allowed a non-tribal member to challenge a decision by the secretary of the interior to transfer some land to the tribe from fee to trust, congress enacted the 1994 gun lake trust land reaffirmation act.181 that act attempted to overturn or, perhaps, moot the court’s decision in patchak by reaffirming the secretary’s decision to take the land into trust and directing the dismissal of any action (future or pending) challenging such fee to trust transfer. the court recently upheld the constitutionality of this legislation.182 the grant of cert may have seemed unusual as the case only concerned a tribe specific statute. however, the legal principles involved were important as they concerned the power of congress to affect results reached in previous court decisions. 5. overturning employment division v. smith.183 tribal interests were successful in overturning the practical effect of employment division when congress amended the american indian religious freedom act in 1994. 184 the 1994 amendments protected the sacramental 178 babbitt v. youpee, 519 u.s. 234 (1997). 179 pub. l. no. 106-462, 114 stat. 1991. 180 match-e-be-nash-she-wish band of pottawatomi indians v. patchak, 567 u.s. 209 (2012). 181 pub. l. no. 113-179, 128 stat. 1913. 182 see patchak v. zinke, 138 s. ct. 897 (2018). 183 employment division v. smith, 494 u.s. 872 (1990) (holding that the strict scrutiny test of the free exercise clause was not applicable when general criminal laws only incidentally impacted one’s religious practices. here, the use of peyote for sacramental purposes.) see discussion, supra notes 80–81. 184 42 u.s.c. 1996(a)-(b). no. 2:277] last 30 years of fed. indian law 311 use of peyote by practitioners of indian religions by prohibiting any state or federal prosecution for such sacramental use. the congress also responded more generally to employment division by enacting the religious freedom restoration act (rfra) in 1994.185 rfra restored the strict scrutiny/compelling interest test when a law of general applicability substantially burdened one’s free exercise of religion.186 rfra was not a product of tribal efforts but was lobbied for by a coalition of mainstream religious groups.187 6. responding to lyng v. northwest indian cemetery.188 it is noteworthy that rfra was not meant to directly affect the result in lyng v. northwest cemetery. lyng held that indian religious practitioners could not invoke the free exercise clause to challenge federal actions negatively impacting religious sacred sites located on federal land because such federal actions had not “substantially burdened” their religious practices. 189 the actual result in lyng was, however, overturned when congress designated some lands, which included the whole area at issue in lyng, as permanent wilderness under the smith river national recreation act.190 furthermore, in response to lyng, congress amended the national historic preservation act (nhpa) in 1992 to add “properties of traditional and cultural importance to an indian tribe” to properties eligible to be included in the national 185 42 u.s.c. 2000bb-1-2000bb-4. 186 airfa was declared unconstitutional but only as applied to states in city of boerne v. flores, 521 u.s. 507 (1997). 187 for background on this legislation, see douglas laycock & oliver s. thomas, interpreting the religious freedom restoration act, 73 tex. l. rev. 209 (1994). 188 lyng v. northwest cemetery ass., 485 u.s. 439 (1988) 189 id. see laycock & thomas, supra note 187, at 229. see also navajo nation v. united states forest serv., 535 f.3d 1058 (9th cir. 2008) (en banc) (holding that the court was bound by the result in lyng in spite of rfra). for a comprehensive analysis of this ninth circuit decision, see jonathan knapp, making snow in the desert: defining substantial burden under rfra, 36 ecology l. q. 259 (2009). 190 see 16 u.s.c. 460 bbb-3(b)(2)(h) (2000). 312 columbia journal of race and law [vol. 8:2 register of historic places. 191 in addition, indian nations must now also be included in the consultation process provided in the nhpa.192 * * * in a recent article analyzing in depth the actions of congress concerning indians, kirsten carlson found that indian tribes were surprisingly adept at persuading congress to enact legislation favorable to tribal interests. 193 as the patchak legislation shows,194 this is undoubtedly true when it comes to getting congress to enact tribe specific bills or legislation not opposed by states or powerful non-tribal interests such as the interest groups that have prevented legislation preempting state taxation in indian country or amendments to the indian gaming regulatory act. 195 otherwise, the only major pan-tribal successes involving congressional reaction to supreme court decisions in the last thirty years have been the enactment of igra, the duro fix, the 1992 amendments to the national historic preservation act, the 2013 vawa amendments, and the 1994 amendments to the american indian religious freedom act. there have been, of course, many other tribal legislative successes. but such successes, like for instance, the tribal law & order act, 196 or the cobell settlement, 197 have not 191 16 u.s.c. § 470a (d)(6)(a). see also anderson, berger, et al. american indian law, cases and commentary 802–03 (3d ed. 2008). 192 16 u.s.c. § 470a (d)(6)(b). see also sarah palmer, cherie shanteau, barbara osborne, strategies for addressing native traditional cultural properties, 20 nat. resources & env’t 45 (2005). 193 see kirsten matoy carlson, tribes lobbying congress: who wins and why 9-12, draft report presented at the michigan state university’s 13th annual indigenous law conference (2017). 194 see discussion, supra notes 180–182. 195 see discussion, infra notes 223, 230. 196 pub. l. 11-211, 124 stat 2261. 197 pub. l. no. 11-291 (2010). the cobell litigation involved a class action representing the claims of over 300,000 individuals having trust accounts with the united states. no doubt, the parties’ willingness to legislatively settle that litigation was influenced by recent supreme court cases such as united states v. white mountain apache tribe, 557 u.s. 465 (2003), and united states v. navajo nation, 537 u.s. 488 (2003), defining the circumstances under which the united states could be liable for breach of fiduciary duties. the legislative settlement of the cobell litigation, however, no. 2:277] last 30 years of fed. indian law 313 been the result of a direct congressional reaction to a supreme court case. others, like rfra for instance, were not the product of tribal lobbying efforts.198 b. evaluating the court’s reaction to federal legislation. this section evaluates the court’s reaction to congressional legislation to determine if the court is looking for a political equilibrium in reaching results consistent with the positions of congress on indian issues. 1. interpreting the indian gaming regulatory act (igra). as stated earlier, the court struck part of igra as unconstitutional in seminole tribe v. florida.199 the court also interpreted igra as allowing federal taxation of tribal gaming revenues in chickasaw nation v. united states. 200 while seminole tribe obviously upset the carefully crafted balance reached by congress between tribal and state interests in tribal gaming within indian country, the decision was part of a much larger debate among the justices concerning the power of congress to abrogate the states’ eleventh amendment sovereign immunity using the commerce clause. however, the refusal of the court to allow tribes to sue state official using the ex parte young doctrine reflects a profound disagreement with the congressional policies enunciated in igra. 201 as argued elsewhere, that policy revealed a congressional desire to include tribes into a cannot be considered a direct reaction to any supreme court cases defining the trust duties of the united states to specific tribes. see generally, cobell v. norton, 240 f.3d 1081 (d.c. cir. 2001); cobell v. norton, 428 f.3d 1070; and cobell v. kempthorne, 569 f. supp. 2d 223 (f.d.c. 2008). 198 see laycock & thomas, interpreting the religious freedom restoration act, supra note 187. 199 seminole tribe v. florida, 517 u.s. 44 (1996). see discussion, supra notes 167–171. 200 chickasaw nation v. united states, 534 u.s. 84 (2001). 201 for a critique of that aspect of the court’s opinion, see skibine, supra note 166, at 297–300. 314 columbia journal of race and law [vol. 8:2 model of what some have termed cooperative federalism.202 although i also noted that igra was different from the typical cooperative federalism statute in that it directly involved the states in the negotiation of compacts with indian nations,203 i also believed that igra could fit “in the concept of cooperative federalism, a concept which should be based on tri-lateral agreements between the tribes, the federal government, and the states.”204 2. interpreting the alaska native claims settlement act (ancsa). in venetie, 205 the court reacted to enactment of the 1971 alaska native claims settlement act (ancsa) by holding that land set aside for native corporations under the act was not indian country. therefore, the state of alaska could tax activities taking place on those lands. the court achieved this surprising result twenty-seven years after ancsa was enacted into law by insisting that lands set aside by congress for dependent indian communities, such as alaskan native villages, could only qualify as “indian country” for the purpose of section 1151,206 if such lands also remained in control of the federal government. because native alaskan villages held their lands in fee, the federal 202 id. see also, id. at 285–87 (“[f]ederal statutes in the new tribal selfgovernance era… have progressively adopted what could be described as a compact model…. these statutes can be seen as incorporating or integrating indian tribes as sovereign political entities within “our federalism” and creating what could be called a system of federalism between the tribes and the federal government.”). 203 typical statutes embodying a cooperative federalism model include the clean air act, pub. l. 101-459, 104 stat. 2399, the safe drinking water act, pub. l. 99-339, 100 stat 642, and the clean water act, pub. l. 100-4, 101 stat 7. indian tribes are included in the statutes and treated as states for the purpose as being able to assume primacy over the reservations’ air and water resources. 204 skibine, indian gaming and cooperative federalism, supra note 166, at 287. 205 alaska v. vill. of venetie, 522 u.s. 520 (1998). 206 see the language of section 1151, supra note 147. although 18 u.s.c. 1151 defines what lands qualify as indian country for the purpose of criminal jurisdiction, the definition has been applied to civil jurisdictional issues. no. 2:277] last 30 years of fed. indian law 315 government did not have complete control over such lands. therefore, such lands could not qualify as indian country.207 3. interpreting indian child welfare act (icwa). since its enactment in 1978, the court has only interpreted the indian child welfare act twice. from a protribal interpretation in holyfield in 1988,208 the court came up with a very narrow interpretation of the law in adoptive couple v. baby girl in 2013. 209 this new interpretation severely limited the capabilities of biological indian fathers to invoke the protection of icwa when intervening in adoption proceedings. the court held that a biological father challenging the mother’s decision to put the child up for adoption had to have had “custody” of his child in order to invoke the protections of icwa. 4. interpreting section 5 of the indian reorganization act (ira). section 5 allows the secretary of interior to transfer land into trust for the benefit of indian tribes.210 for years, the secretary had construed that section as applying to all indian tribes as long as such tribes were under federal jurisdiction as of the date of each land transfer. at the urging of the states, the court in carcieri gave a very narrow interpretation to the indian reorganization act, restricting application of section 5 to those tribes under federal jurisdiction as of 1934.211 the court was able to reach this 207 for a critical evaluation of the court's reasoning in venetie, see kristen carpenter, interpreting indian country in state of alaska v. native village of venetie, 35 tulsa l.j. 73 (1999). see also david m. burton, canons of construction, stare decisis, and dependent indian communities: a test of judicial integrity, 16 alaska l. rev. 37 (1998). 208 miss. band of choctaw indians v. holyfield, 490 u.s. 20 (1989) (coming up with a national definition of “domicile” that prevented an indian mother from avoiding application of icwa by moving off the reservation to give birth in order to claim that her domicile was no longer on the reservation). 209 adoptive couple v. baby girl, 133 s. ct. 2552 (2013). 210 codified at 25 u.s.c. 5108. 211 carcieri v. salazar, 555 u.s. 379 (2009). 316 columbia journal of race and law [vol. 8:2 result by surprisingly claiming that there was no ambiguity whatsoever in the statute and, therefore, chevron deference was not applicable.212 in doing so, the court set aside a thirtyyear-old formal regulation of the interior department which had interpreted the statute as only requiring that a tribe be under federal jurisdiction at the time the land was transferred into trust.213 5. indian land consolidation act. as noted earlier, the court struck down as unconstitutional parts of the indian land consolidation act twice.214 on november 27, 2017, the court declined to revisit the indian land consolidation (ilca) when it denied cert to a petition challenging a ruling holding that ilca allows the united states to take land into trust for a tribe even though the united states currently does not hold any land in trust for that tribe.215 it is interesting to note that in each of the four examples cited above and this one, the court ruled against the tribal interests. 216 however, of the five statutes, only the indian land consolidation act generated a congressional response. this shows that if tribal interests are not in direct conflict with the interests of states or important non-tribal interests, congress is ready and willing to correct supreme 212 chevron v. n.r.d.c., 467 u.s. 837 (1984). under chevron, courts are supposed to give deference in interpreting an ambiguous statute to the federal agency in charge of implementing such statute as long as such agency was delegated by congress the power to make such interpretations. 213 for critical perspectives on carcieri, see, e.g., william wood, indians, tribes and “federal” jurisdiction, 65 u. kan. l. rev. 415 (2016); sarah washburn, comment, distinguishing carcieri v. salazar: why the supreme court got it wrong and how congress and courts should respond to preserve tribal and federal interests in the ira's trust-land provisions, 85 wash. l. rev. 603 (2010). 214 see discussion, supra notes 176–180. 215 see upstate citizens for equality v. united states, 841 f.3d 556 (2016). 216 some may also question whether the “supreme court decisions in irving and youpee are actually anti-indian. see, e.g., baca, 40 years of u.s. supreme court, supra note 21 (classifying the two decisions as indian victories). no. 2:277] last 30 years of fed. indian law 317 court decisions. the next sub-section makes this point even clearer. 6. interpreting the indian self determination act. in 1988 and 1994, congress amended the indian selfdetermination act of 1975. 217 in cherokee nation v. leavitt, 218 the supreme court unanimously interpreted the 1988 amendments as mandating the funding of “contract support costs” associated with self-determination contracts entered into between the united states and the tribes. contract support costs are “reasonable costs” that a federal agency would not have incurred, but which tribes are incurring in managing such programs. 219 even though the 1988 amendments provided that funding under the act shall be contingent on availability of appropriations and congress had not earmarked enough funds to cover all contract support costs, the court reasoned that congress had still appropriated sufficient unrestricted funds to cover the full amount of those contract support costs. aware of this problem, congress later enacted appropriation bills with language providing that contract support costs available to tribes should be capped at an amount “not to exceed” amounts appropriated by congress for this activity. yet, in salazar v. ramah navajo chapter, 220 the court, this time in a 5–4 decision, held that the united states was obligated to award each tribe the full amount of contract support costs negotiated in the previous contracts. unlike previous statutory interpretation cases where the court interpreted legislation narrowly to restrict tribal rights, in this case the court stood firmly with the tribes in upholding the contractual obligations of the united states. the court was able to achieve this in spite of congress’s attempts to restrict tribal funding through specific language 217 p.l. 93-638, 88 stat. 2203, codified as amended at 25 u.s.c. 450 et. seq. amended by p.l. 100-472, 102 stat. 2285 in 1988 and further amended in 1994 by p.l. 103-413, 108 stat. 4250. 218 cherokee nation v. leavitt, 543 u.s. 631 (2005). 219 see 25 u.s.c. 450j-1(a)(2). 220 salazar v. ramah navajo, 132 s. ct. 2181 (2012). 318 columbia journal of race and law [vol. 8:2 in appropriation bills. in effect, the court put the onus on congress to amend the indian self-determination act one more time or be obligated to fund all tribal contract support costs associated with self-determination contracts. what accounts for the difference from other areas of statutory interpretations where the court was not that partial to tribal interests? in may be attributed to the fact that in these two cases, neither the rights of the states nor the rights of individual non-members were at all impacted by the decisions. the cases only dealt with the tribes’ contractual and financial rights vis-a-vis the federal government. c. the road not taken sometimes, congressional or judicial silence on an issue can speak as much as enacted legislation and judicial decisions. this section enumerates five key issues where tribal interests have failed to enact legislation and concludes by listing three areas where anti-tribal interests have not succeeded in motivating either congress or the court to act. 1. tribal civil jurisdiction over nonmembers: as opposed to cases involving criminal jurisdiction, none of the civil jurisdiction cases preventing tribal jurisdiction over non-members in indian country have been overturned.221 congressional silence and lack of any reaction, either for or against tribal jurisdiction in this area speaks volume about either a lack of concern with such cases, or an inability to address such issues through legislation. although there were bills introduced in congress at various times, for instance s. 578 in 2003, no bill was ever reported out of committee so that it could be considered on the floor of either the senate or the house of representatives. in the case of s. 578, this is due in part to the overly ambitious 221 south dakota v. bourland, 508 u.s. 679 (1993); strate v. a-1 contractors, 520 u.s. 438 (1997); atkinson trading v. shirley, 532 u.s. 645 (2001); nevada v. hicks, 533 u.s. 353 (2001); and plains commerce bank v. long family land & cattle co., 554 u.s. 316 (2008). the tribes also lost half of brendale v. confederated tribes, 492 u.s. 408 (1990). no. 2:277] last 30 years of fed. indian law 319 nature of the bill. it aimed to overturn both oliphant, the case that had divested tribes of criminal jurisdiction over nonmembers, and the united states v. montana line of cases, which divested tribes of some civil jurisdiction over nonmembers. 222 congressional inaction here can also be explained by the fact that the non-tribal interests potentially affected by such legislation have considerable more lobbying power than the non-member indians accused of committing crimes in indian country as was the case during consideration of the duro-fix legislation. 223 another factor that may explain the lack of congressional interest in favor of legislation re-instating tribal civil jurisdiction over non-members is the fact that in many of these tribal civil jurisdiction cases, the tribal court plaintiff can also bring the lawsuit against the non-tribal person in a state or federal court. certainly, that fact was part of the supreme court decision in strate v. a-1 contractors, 224 when it concluded its opinion by stating “gisela fredericks may pursue her case against a–1 contractors and stockert in the state forum open to all who sustain injuries on north dakota’s highway. opening the tribal court for her optional use is not necessary to protect tribal self-government; and requiring a–1 and stockert to defend against this commonplace state highway accident claim in an unfamiliar court is not crucial to “the political integrity, the economic security, or the health or welfare of the tribe.”225 in a recent article, berger proposed three reasons explaining the court’s anti-tribal bias. first, the justices are unfamiliar with how tribal governments operate. secondly, the justices are concerned that non-members are not fully protected by the united states constitution when appearing in tribal courts. finally, the court does not see indian nations as truly sovereign governments in charge of governing their 222 for an examination of how this legislation came about and why it failed, see dewi ioan ball, the erosion of tribal power, the supreme court’s silent revolution, 149–69 (university of oklahoma press 2016). 223 see discussion, supra notes 168–175. 224 strate v. a-1 contractors, 520 u.s. 438, 459 (1997). 225 id. at 459. 320 columbia journal of race and law [vol. 8:2 territories.226 the same concerns generated by unfamiliarity, lack of constitutional protections, and mixed feelings about tribal sovereignty, could also be operating at the congressional level to dim any chances of restoring tribal civil jurisdiction through legislation. however, it should be noted that although not enacted as a direct reaction to any supreme court case, congress did amend some of the major environmental statutes to allow tribes to potentially be treated as states under those statutes. such treatment would allow tribes to regulate the activities of non-members in this area.227 perhaps any future tribal efforts in this area should focus on specific areas of civil jurisdiction instead of painting with a wider brush.228 2. pre-empting state tax jurisdiction in indian country. as stated earlier, 8 cases allowed states to tax activities on indian reservations.229 the court has allowed such taxation by either slightly modifying its indian 226 see berger, hope for indian tribes, supra note 20, at 1914–15. 227 see the indian amendments to the clean air act, 42 u.s.c. 7601(d)(2); the clean water act, 33 u.s.c. 1377 (e); and the safe drinking water act, 42 usc 300j-11(a). see also wisconsin v. epa, 266 f.3d 741 (7th cir. 2001). see arnold w. reitze, jr., the control of air pollution on indian reservations, 46 envtl. l. 893 (2016). 228 on the other hand, congress has allowed some state civil jurisdiction in legislation settling tribal land claims and/or recognizing or restoring some tribes to federal recognition. see, e.g., the wampanoag indian claims settlement act of 1987, pub. l. 100-95, 101 stat. 704. see also the 1988 act establishing a reservation for the confederated tribes of the grand ronde community, pub. l. 100-425, 102 stat. 1594, and the klamath indian tribe restoration act of 1986, pub. l. 99-393, 100 stat. 849. 229 see cotton petroleum v. new mexico, 490 u.s. 163 (1989); dep’t of taxation v. milhelm, 512 u.s. 679 (1994); montana v. crow tribe, 523 u.s. 696 (1998); ariz. dep’t of revenue v. blaze constr., 526 u.s. 32 (1999); city of sherrill v. oneida indian nation, 544 u.s. 197 (2005); wagnon v. prairie band potawatomi nation, 546 u.s. 95 (2005); cty. of yakima v. confederated tribes, 502 u.s. 251 (1992); and cass county v. leech lake band, 524 u.s. 103 (1998). no. 2:277] last 30 years of fed. indian law 321 preemption analysis,230 or finding that the imposition of the tax did not actually occur in indian country.231 in all these cases, the court allowed state taxation by finding that the legal incidence of the tax did not fall on the indian tribes. furthermore, in city of sherrill v. oneida indian nation, 232 the court invoked the doctrine of laches to prevent the tribe from challenging a state tax because a successful challenge would otherwise upset the long held and legitimate expectations of non-indians.233 the lack of legislative activity here indicates that once the supreme court rules in favor of state taxation and against tribal interests in this area, such rulings are irreversible through legislation. 3. enacting a seminole fix. legislation is needed to resolve the problems and imbalance created by seminole tribe v. florida. 234 in seminole tribe, the court struck down a section of igra allowing the tribes to sue states in federal court for failure to negotiate a tribal state gaming compact in good faith as unconstitutional. the court held that congress could not use its commerce clause powers to abrogate the states’ sovereign immunity guaranteed by the eleventh amendment. seminole tribe being a constitutional decision, congress cannot just overturn it. one unresolved question is whether the secretary of the interior can issue class iii gaming procedures upon being petitioned to do so by a tribe whose lawsuit against a state was dismissed on account of sovereign immunity. two circuit courts have ruled that the secretary cannot issue such regulations. 235 in spite of recommendations by many 230 see, e.g., cotton petroleum v. new mexico, 490 u.s. 163 (1988); dep’t of taxation v. milhelm, 512 u.s. 61 (1994). for a critical analysis, see skibine, supra note 96, at 428–30. 231 see wagnon v. prairie band of potawatomi, 546 u.s. 95 (2005). 232 city of sherrill v. oneida indian nation, 544 u.s. 197 (2005). 233 for a critical analysis of the decision, see joseph william singer, ninetenths of the law: title, possession, and sacred obligations, 38 conn. l. rev. 605 (2006). 234 seminole tribe v. florida, 517 u.s. 44 (1996). 235 see new mexico v. dep’t of interior, 854 f.3d 1207 (10th cir. 2017); texas v. united states, 497 f.3d 491 (5th cir. 2007). for a critique of the texas 322 columbia journal of race and law [vol. 8:2 scholars, no amendment to igra on this issue or others seem to be forthcoming. 236 4. recognizing native hawaiians. although so far, native hawaiians lost both supreme court cases affecting their interests, 237 congress tried but was unable to enact any kind of legislation recognizing native hawaiians as an indigenous/tribal governmental entity. 238 however, on september 29, 2015, president obama’s administration, through the department of the interior, announced that it was amending regulations that had prohibited native hawaiians to apply for federal recognition as an indian tribe. the new regulations would allow native hawaiians to petition the government for recognition as an indian tribe.239 this may moot any further legislative activity in this area for some times. 5. overturning carcieri v. salazar.240 so far, tribal efforts to enact a carcieri fix have been unsuccessful. under carcieri, in order to be eligible to receive land into trust under section 5 of the indian reorganization act, a tribe had to be under federal jurisdiction as of 1934.241 decision, see skibine, supra note 166, at 293–96. see also note, a pretty smart answer: justifying the secretary of interior’s seminole fix for the indian gaming regulatory act, 40 am. ind. l. rev. 325 (2015–2016). 236 see, e.g., matthew l.m. fletcher, bringing balance to indian gaming, 44 harv. j. on leg. 39 (2007) (recommending amendments to igra). 237 rice v. cayetano, 528 u.s. 495 (2000); hawaii v. office of haw. affairs, 556 u.s. 163 (2009). 238 for a description of such legislative efforts, see note, the akaka bill: the native hawaiians race for federal recognition, 23 u. hawaii l. rev. 857 (2001). 239 see department of the interior press release, interior proposes reestablishing government to government relationship with native hawaiian community, sept. 29, 2015. 240 carcieri v. salazar, 555 u.s. 379 (2009). 241 for an argument that most if not all indian tribes were under federal jurisdiction as of 1934, see william wood, indians, tribes, and (federal) jurisdiction, 65 u. kansas l. rev. 415 (2016). no. 2:277] last 30 years of fed. indian law 323 it should be noted, however, that indian nations may not be united in the effort to overturn the decision. 242 6. repealing section 5 of the indian reorganization act (ira) or declaring it unconstitutional. on the other hand, in spite of concerted efforts by the states to challenge implementation of section 5 of the ira,243 or declare the section unconstitutional, 244 the court never came close to holding the section unconstitutional. 245 the court did grant cert in department of the interior v. south dakota, 246 but proceeded on remanding the case for reconsideration to the secretary of the interior without writing a substantial opinion. congress on the other hand, did amend the indian reorganization act in 1988 to allow tribes that had initially rejected the act to be able to benefit from section 5.247 7. abrogating tribal sovereign immunity 242 for background on the issues raised by the taking of land into trust for the benefit of indian tribes pursuant to section 5, see note, beyond the carcieri fix: the need for broader reform of the land into trust process of the indian reorganization act of 1934, 96 iowa l. rev. 1377 (2011). 243 for a critique of the implementation of section 5, see note, extreme rubber stamping: the fee to trust process under the indian reorganization act of 1934, 40 pepp. l. rev. 251 (2014). 244 see, e.g., city of roseville v. norton, 348 f.3d 1020 (d.c. cir. 2003). section 5 has been attacked as being unconstitutional as an overbroad delegation of power to the secretary of the interior. it has also been attacked as a violation of the tenth amendment to the u.s. constitution. the tenth amendment provides that all powers not delegated to the congress are reserved to the states. 245 on november 27, 2017, the supreme court denied cert to two petitions asking the supreme court to review the constitutionality of section 5 of the ira, 25 u.s.c. 5108, (formerly cited as 25 u.s.c. 465). see town of vernon v. united states, docket no-17-8, and upstate citizen for equality v. united states, docket no. 16-1320). 246 department of the interior v. south dakota, 117 s. ct. 286 (1996). 247 the amendments to section 5 of the ira, codified at 25 u.s.c. 2202, were contained in title ii of the indian land consolidation act, 96 stat 2517. 324 columbia journal of race and law [vol. 8:2 in kiowa tribe v. manufacturing technologies,248 the court strongly implied that congress should consider restricting the scope of tribal sovereign immunity. 249 yet, after considering the issue in connection with enactment of the indian tribal economic development and contracts encouragement act of 2000, 250 congress opted against any major revisions to the doctrine.251 it has to be noted, however, that the court’s unquestioned support for tribal sovereign immunity has been waning: from a 6–3 majority in kiowa tribe in 1998 to a 5–4 decision in the 2014 bay mills decision. 252 furthermore, the court granted cert in upper skagit indian tribe v. lundgren.253 in that case, the state of washington’s supreme court held that the upper skagit indian tribe could not rely on its sovereign immunity in a case where plaintiffs, relying on adverse possession, had filed an in rem action against the tribe asking a court to determine 248 kiowa tribe v. mfg. techs., 523 u.s. 751, 758 (1998). 249 id. at 758 (“there are reasons to doubt the wisdom of perpetuating the doctrine… in our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal selfgovernance. this is evident when tribes take part in the nation's commerce. tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-indians. in this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims. these considerations might suggest a need to abrogate tribal immunity, at least as an overarching rule . . . we defer to the role congress may wish to exercise in this important judgment.”). for a critical look at statements made in the opinion, see william wood, it was not an accident: the tribal sovereign immunity story, 62 am u. l. rev. 1587 (2013). 250 p.l. 106-179, 114 stat. 46 (2000) (amending 25 u.s.c. 81). see andrea m. seielstad, the recognition and evolution of tribal sovereign immunity under federal law: legal, historical, and normative reflections on a fundamental aspect of american indian sovereignty, 37 tulsa l. rev. 661, 711 (2002) (summarizing congressional considerations in amending the law of tribal immunity). 251 see h.r. rep. no. 106-501 (2000); s. rep no. 106-150 (1999). see also katherine florey, sovereign immunity's penumbras: common law, “accident,” and policy in the development of sovereign immunity doctrine, 43 wake forest l. rev. 765, 826 (2008) (summarizing the arguments for and against the doctrine). 252 michigan v. bay mills indian cmty., 124 u.s. 2024 (2014). 253 doc. no. 17-387, petition granted december 8, 2017. no. 2:277] last 30 years of fed. indian law 325 title to a disputed parcel of land. 254 the united states supreme court could arguably just expand on language in one of its previous federal indian law opinion allegedly indicting that tribes cannot invoke their sovereign immunity in in rem actions.255 it would be somewhat surprising, however, for the court to have granted cert in such a relatively unimportant case just to affirm the state court on this narrow ground. 8. amending the indian child welfare act (icwa) or declaring it unconstitutional. anti-icwa interest groups efforts to amend the indian child welfare act (icwa), 256 have also gone nowhere, legislatively speaking. although bills to amend icwa have been introduced, so far congress has not enacted any new amendments to this legislation.257 on the same subject, even though many have and continue to challenge some sections of icwa as being unconstitutional, 258 the supreme court has never granted cert to any such cases.259 however, it should be noted that in adoptive couple v. baby girl, 260 the court stated that parts of the icwa would raise equal protection issues if 254 lundgren v. upper skagit indian tribe, 389 p.3d 569 (2017). as stated by the supreme court of washington: “the supreme court held that the indian general allotment act allowed yakima county to impose ad valorem taxes on reservation land. the court reached that conclusion by characterizing the county's assertion of jurisdiction over the land as in rem, rather than an assertion of in personam jurisdiction over the yakama nation. in other words, the court had jurisdiction to tax on the basis of alienability of the allotted lands, and not on the basis of jurisdiction over tribal owners.” id. at 573. 255 see yakima v. confederated tribes & bands of yakima indian nation, 502 u.s. 251 (1992). 256 pub. law 95-608, codified at 25 u.s.c. sections 1901-1923 (2000). 257 see barbara ann atwood, flashpoints under the indian child welfare act, toward a new understanding of state court resistance, 51 emory l.j. 587 (2002) (discussing the major controversies regarding icwa). 258 for a summary of current cases, see matthew newman and kathryn fort, legal challenges to icwa: an analysis of current case law, 36 no.1 child l. prac. 13 (2017). 259 on october 30, 2017, the court denied cert to a case raising equal protection and due process issues. see s.s. v. colo. river indian tribes, docket no. 17-95, petition for cert, filed on july 17, 2017. 260 missouri v. mcneely, 569 u.s. 141 (2013). 326 columbia journal of race and law [vol. 8:2 the interpretation of the south carolina supreme court was upheld.261 * * * tribal interests have been more adept at preventing anti-tribal bills from being enacted into law. thus, major pieces of pro-tribal legislation like the ira, igra, and icwa have not been amended in ways adverse to tribal interests. however, the same thing could be said of anti-tribal interests’ capabilities to stymie pro-tribal legislation. it is telling that congress was able to revisit the indian land consolidation act three times and has made numerous amendments to the indian self determination act, yet tribal legislative efforts to fix igra in the wake of seminole tribe, reaffirm tribal civil jurisdiction over non-members, or preempt state taxation in indian country, have all been stalled. the record confirms that it is much easier to kill rather than enact legislation. 262 many have written about congressional gridlock and the court is, of course, aware of this phenomenon.263 the next section of this article argues that this awareness has emboldened the court to use judgemade law to promote its own agenda and policies in indian country without any fears of upsetting any equilibrium that could or should have been reached with congress. d. looking for a different kind of equilibrium through the use of federal common law. as stated earlier, the court uses federal common law more than any other type of law in its indian law jurisprudence. 264 moreover, the court’s most active use of federal common law is to protect non-members from tribal jurisdiction and promote state jurisdiction inside indian 261 id. at 2565. 262 see william n. eskridge, vetogates, chevron, preemption, 83 notre dame l. rev. 1441 (2008). 263 see michael j. teter, congressional gridlock’s threat to separation of power, 2013 wisc. l. rev. 1097 (2013); michael, j. gerhardt, why gridlock matters, 88 notre dame l. rev. 2107 (2013); michael j. teter, gridlock, legislative supremacy, and the problem of arbitrary inaction, 88 notre dame l. rev. 2217 (2013). 264 see discussion, supra notes 89–104. no. 2:277] last 30 years of fed. indian law 327 reservations. this section posits that rather than seeking to achieve equilibrium with congress, the court is using federal common law to impose its own version of what the equilibrium between tribal and non-tribal interests should look like. the court’s inordinate reliance on federal common law for these purposes shows that the court does not believe that congress can be counted on to protect the interests of nonmembers or states in indian country. 265 in a non-federal indian law context, scholars have noted that the court’s desire to protect norms of federalism was based on a belief that congress does not always have the states’ interest foremost in mind when enacting legislation.266 although there is no data supporting the ineffectiveness of congress to look after the interests of states and non-members in indian country, there is legislative gridlock generally speaking. 267 therefore it would not be surprising for the court to conclude that this gridlock may extend to controversial issues in indian country. this perceived inability or unwillingness of congress to protect the interests of states and non-members has pushed the court to reverse certain common law presumptions that used to govern the field of indian affairs. for instance, frickey asserted that the court was undermining tribal sovereignty by abandoning the exceptionalism of john marshall’s foundational indian law cases, 268 and adopting instead a new “federal common law” for what he called, “our age of colonialism.” 269 in the handbook of federal indian law, first published in 1942, felix cohen articulated the generally accepted paradigm defining the powers of indian tribes before 1978.270 there, he wrote: 265 as stated by the late philip frickey: “it seems plain that the trend has been motivated by a judicial sense that congress has failed to step in and fix a myriad of festering local problems by eliminating tribal authority.” philip p. frickey, (native) american exceptionalism in federal public law, 119 harv. l. rev. 433, 460–61. (2005). 266 see ruth colker & james brudney, dissing congress, 100 mich. l. rev. 80 (2001). 267 see discussion, supra note 257. 268 see frickey, native american exceptionalism, supra note 265. 269 frickey, our age of colonialism, supra note 26. 270 cohen, supra note 9. 328 columbia journal of race and law [vol. 8:2 the whole course of judicial decisions on the nature of indian tribal powers is marked by adherence to three fundamental principles: (1) an indian tribe possesses . . . all the powers of any sovereign state. (2) conquest renders the tribe subject to the legislative power of the united states and, in substance, terminates the external powers of sovereignty of the tribe . . . but does not by itself affect the internal sovereignty of the tribe, i.e. its powers of local selfgovernment. (3) these powers are subject to quantification by treaties and by express legislation of congress.271 i have argued elsewhere that during the rehnquist years, the court adopted a “dependency” paradigm for the incorporation of tribes into the federalist system. 272 under that paradigm, tribes were not being incorporated under a third sphere of sovereignty but were “dependent” on congress for all their political rights. in other words, the court’s jurisprudence was evolving towards a position that would require the existence of tribal power to be somehow confirmed in treaties or legislation.273 in addition, the court was moving towards a position requiring congressional intent to preempt state jurisdiction in indian country to be clearly indicated.274 thus, instead of looking for congress to act affirmatively to protect states and non-member interests, the court was putting the burden on congress to confirm tribal power and clearly establish its intent to pre-empt state jurisdiction in indian country. although congress has adopted broad policies favoring tribal self-government, the court’s effort to impose its own agenda through federal common law has been facilitated by the fact that congress has rarely addressed general conflicts involving tribal and state claims to power on indian 271 id. at 132 (internal citation omitted). 272 see skibine, beyond the dependency paradigm, supra note 17. 273 id. at 668. 274 id. no. 2:277] last 30 years of fed. indian law 329 reservations.275 this lack of precise congressional direction on state taxation and tribal civil jurisdiction over non-members has enabled the court, through the use of formalism, to formulate rigid rules from old cases in order to justify its decisions favoring states rights and disallowing tribal jurisdiction over non-members. 276 the typical formalist analysis uses a “rule” derived from authoritative text. functionalism, on the other hand, applies “standards” to resolve a given conflict.277 the use of formalism instead of functionalism has enabled the court to hide its policy choices behind such rigid rules. using a functional approach in federal indian law would at least force the court to explain why its holdings are congruent with current congressional policies.278 the court’s decision in united states v. lara was an important milestone. 279 because it held that the court’s decisions implicitly divesting indian tribes of sovereignty could be legislatively overturned, lara enabled congress to reassert its primary role in governing indian affairs.280 as shown in the previous section, however, the court also knows that the chances of congress reacting to anti-tribal decisions favoring states’ rights or the right of powerful non-tribal interests, are extremely small. therefore, the court must feel it can use federal common law to divest tribes of jurisdiction over non-members and allow state tax jurisdiction in indian country without the fear of being rebuffed by congress. 275 the most notable recent exception is the indian gaming regulatory act of 1988. see discussion, supra notes 160–165. 276 see skibine, formalism and judicial supremacy, supra note 96. 277 see, e.g., william n. eskridge jr., relationship between formalism and functionalism in separation of powers cases, 22 harv. j. l & pub. pol’y 21 (1998). 278 skibine, formalism and judicial supremacy, supra note 96, at 395. 279 united states v. lara, 541 u.s. 193 (2004). 280 as i argued elsewhere, lara also modified the implicit divestiture doctrine enunciated in oliphant and montana when the court stated that indian tribes implicit loss of inherent powers was due to “restrictions… that the political branches had imposed on the tribes' exercise of inherent… power.” 541 u.s. 193, 200 (2004). see alex tallchief skibine. constitutionalism, federal common law, and the inherent powers of indian tribes, 39 am. ind. l . rev. 77, 83–85 (2014–15). 330 columbia journal of race and law [vol. 8:2 this article takes no issue with the right of the court to use federal common law, however the more difficult question is whether the court’s formulation of its common law rules is legitimate. although there are very few limits, if any, on the power of federal courts to devise rules of federal common law,281 the fashioning of rules of decision should be, in one way or another, tied either to congressional policies,282 or to values emanating from the constitution.283 as the court noted, statutes establish policies that: become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law…this appreciation of the broader role played by legislation in the development of the law reflects the practices of common law courts from the most ancient times. as professor landis has said “much of what is ordinarily regarded as ‘common law’ finds its sources in legislative enactment.284 commenting on the court’s use of federal common law, frickey once stated that the “unstated assumption” underlying these federal common law cases was that even though congress has not spoken on the issues being decided, the court is presuming that it is merely following the “wishes 281 see louise weinberg, federal common law, 83 nw. u. l. rev. 805 (1989) (“i take it then that there are no fundamental constraints on the fashioning of federal rules of decision.”) 282 see fletcher, federal indian policy, supra note 15, at 168–82 (advocating a “consistent-with federal-policy” test for deciding some federal common law indian cases such as cases divesting tribes of sovereignty and cases enlarging state jurisdiction in indian country). 283 see, e.g., bradford r. clark, federal common law: a structural reinterpretation, 144 u. pa. l. rev. 124 (1996)(arguing that courts should be able to make rules of federal common law only if they are directly implied from the constitutional structure or if they are necessary to further a basic structure of the constitutional scheme). 284 moragne v. state marine lines, 398 u.s. 375, 390–91, 393 (1970) (quoting james landis, statutes and the sources of law,” harvard legal essays, 213–14 (1934)). no. 2:277] last 30 years of fed. indian law 331 of congress.”285 frickey concluded, however, that there was no evidence supporting such a judicial presumption.286 other scholars have noted that when it comes to federal indian common law, the decisional law is divorced from current congressional policies.287 as stated by frank pommersheim, “[i]n a sense, the court has become the ultimate organ for formulating indian policy in contemporary law. this raises a quintessential separation of powers issue, with the court usurping the constitutional role of congress to make law and formulate policy.”288 some scholars have agreed.289 others have argued that whether indian nations have maintained sovereign powers over non-members should be treated as a political question.290 native americans have been described at various times as the “forgotten americans,” or the “vanishing indians.”291 there was a time when almost all indian tribes were economically powerless and had very little or no impact on the political and economic life of the united states. these times are over: whether it is because of the success of indian casino gaming, 292 or other aspects of tribal economic development, 293 indian issues are no longer on the 285 frickey, our age of colonialism, supra note 26, at 7. 286 id. 287 see fletcher, federal indian policy, supra note 15. 288 frank pommersheim, broken landscape: indians tribes, and the constitution 229 (2009). 289 see lance sorenson, tribal sovereignty and the recognition power (nov. 6, 2017), available at ssrn.com/abstract=3066221. (suggesting that the court’s use of federal common law to find implicit divestiture of tribal sovereignty is unconstitutional as a violation of the separation of power principle.) 290 see michalyn steele, plenary power, political questions, and sovereignty in indian affairs, 63 u.c.l.a. l. rev. 666 (2016). 291 see fort, the vanishing indian returns, supra note 13. 292 see generally, skibine, indian gaming and cooperative federalism, supra note 166. 293 on tribal economic development, see robert j. miller, american indian entrepreneurs: unique challenges. unlimited potential, 40 ariz. sr. l. j. 1297 (2008); w greg guedel & j.d. colbert, capital inequality, and self determination: creating a sovereign financial system for native american nations, 41 am. ind. l. rev. 1 (2016). 332 columbia journal of race and law [vol. 8:2 backburner.294 how indian tribes conduct their politics and handle their business affairs matters to the non-indian world.295 because of this new reality, the court has been in the process of re-adjusting the legal landscape.296 in looking for an equilibrium between tribal and non-tribal interests, the court may be adjusting the rules to ensure that what it (subjectively) considers a level playing field between the tribes and the states, is achieved. controversial decisions in cases such as city of sherrill and plains commerce bank may reflect a knee jerk reaction to the tribes’ newfound political and economic power.297 a good example of the court’s desire to create a new level playing field is its recent decision in lewis v. clarke. 298 in that case, the court refused to extend the tribe’s sovereign immunity to a tribal employee alleged to have committed a tort while driving a tribal vehicle off the reservation but still within the scope of his employment. 299 in coming to its decision, the court took into account whether similar state employees would have enjoyed the state’s sovereign immunity in such situations. after summarizing the rules denying extension of state sovereign immunity in such circumstances, the court stated, “there is no reason to depart from these 294 see matthew l.m. fletcher, indian tribal business & the offreservation market, 12 lewis & clark l. rev. 1047 (2008). 295 see angela r. riley, good (native) governance, 107 colum. l. rev. 1049 (2007) (explaining why it is now more important for tribal governments to adopt good governmental practices and why tribal government should use traditional forms of governance even if those are not similar to american style governance). 296 see judith resnick, dependent sovereigns, supra note 23. 297 see discussion, supra notes 215–227. 298 lewis v. clarke, 137 s. ct. 1285 (2017). 299 id. at 1291 (“it is apparent that these general principles foreclose clarke's sovereign immunity defense in this case. this is a negligence action arising from a tort committed by clarke on an interstate highway within the state of connecticut. the suit is brought against a tribal employee operating a vehicle within the scope of his employment but on state lands, and the judgment will not operate against the tribe. this is not a suit against clarke in his official capacity. it is simply a suit against clarke to recover for his personal actions, which “will not require action by the sovereign or disturb the sovereign's property.”). no. 2:277] last 30 years of fed. indian law 333 general rules in the context of tribal sovereign immunity.”300 that case indicates that from now on, indian nations should be very judicious when invoking sovereign immunity.301 the more powerful the interests being affected by the use of tribal immunity are, the more likely there is to be a response from congress. the recent transfer of patents from allergan to the st. regis mohawk tribe in the hope of shielding such patents from judicial scrutiny provides a good example.302 legislation was promptly introduced in congress purporting to abrogate tribal sovereign immunity in such cases. 303 whether such legislation moves forward remains to be seen.304 but if i am correct about how the court behaves when faced with congressional gridlock or inaction and the issue is important enough to the court, it will intervene and act decisively in a manner that may not be positive for tribal interests.305 iv. conclusion the court’s continued reliance on doctrines of federal common law to divest tribes of sovereignty or allow state jurisdiction in indian country is unfortunate and undermines congressional policies favoring tribal self-government and economic self-sufficiency. however, there are reasons for tribes to be somewhat optimistic. congressional response to 300 id. at 1290–91. 301 see matthew l. m. fletcher, rights without remedies, 11 n.y.u. j. l. & liberties 236, 254–56 (2017) (examining the more controversial use of tribal sovereign immunity and cautioning that more unexpected or innovative use of the doctrine may generate a congressional response.) 302 see mylan pharm. v. st. regis mohawk, decision of the patent trial & appeal board (feb. 23, 2018). 303 see s. 1948, introduced by united states senator claire mccaskill on october 10, 2017. 304 the patent & appeal board refused to recognize the tribal immunity in this case. whether the legislation moves forward will probably depend on whether that decision is overturned on appeal. 305 another controversial issue that may generate a judicial reaction from the court has been the use of tribal sovereign immunity to protect payday lenders from judicial scrutiny. see nathalie martin & joshua schwartz, the alliance between payday lenders and tribes: are both tribal sovereignty and consumer protection at risk?, 69 wash. & lee l. rev. 751, 778–84 (2012). 334 columbia journal of race and law [vol. 8:2 the supreme court’s indian law jurisprudence, while not overly active, has not been detrimental to tribal interests. although enacting pro indian pan-tribal legislation, such as the indian child welfare act or the indian gaming regulatory act, is definitely harder than it used to be, 306 individual tribes have continued to be successful in enacting tribal specific legislation.307 moreover, the overall percentage of tribal wins in the last thirty years while not great (28%), has increased with each decade.308 in conclusion, the overall trend in the cases does indicate that the court is now more willing to accept the position of indian nations as the third sovereign within our federalist system. in a recent supreme court decision discussing the inherent sovereignty of puerto rico, justice kagan, writing for the court, compared such sovereignty to the sovereignty of indian nations and stated originally, this court has noted “the tribes were self-governing sovereign political communities possessing,” (among other capacities) the “inherent power to prescribe laws their members and to punish infractions of those laws.”. . . after the formation of the united states, the tribes became “domestic dependent nations,” subject to the plenary control of congress. . . but unless and until congress withdraws a tribal power—including 306 on suggesting strategies to enact pan-tribal legislation supporting tribal self-determination, see kevin k. washburn, tribal self-determination at the crossroads, 38 conn. l. rev. 777 (2006). 307 see carlson, congress and indians, supra note 28, at 87 (“congress’s enactment rate for indian-related legislation was higher than its enactment rate for legislation more generally during the time period studied. this higher enactment rate has important implications for how we understand congress as a policymaker, its relationship with indians, and the formulation of federal indian law and policy.”). 308 see discussion, supra notes 145–149. no. 2:277] last 30 years of fed. indian law 335 the power to prosecute—the indian community retains that authority in its earliest form.309 this language is in line with the paradigm articulated by felix cohen under which indian nations have retained all their inherent sovereignty except to the extent that such sovereignty has been given up in treaties or specifically taken away by congressional legislation.310 it is also consistent with the implicit divestiture doctrine as arguably re-conceptualized by justice breyer in united states v. lara, where the court took the position that previous court decisions, that had implicitly divested tribes of some inherent powers, only did so because of the “restrictions . . . that the political branches had imposed on the tribes' exercise of inherent . . . power.”311 it is not consistent, however, with the implicit divestiture doctrine as conceptualized in oliphant or montana, where tribes had some of their sovereign powers implicitly divested upon incorporation into the united states because these powers were either inconsistent with the sovereign interests of the united states or subjectively deemed not necessary to tribal self-government.312 v. appendix a key: type of law used (tlu): federal common law = fcl; statutory/treaty interpretation = sti; common law/statutory = cls; constitutional law = con.; common law = com.; statutory = stat.; procedural = proc.; statutory interpretation = si; treaty interpretation = ti substantive rights affected (sra): sovereign rights = sov.; economic rights = econ.; property rights = prop.; 309 puerto rico v. sanchez valle, 136 s. ct. 1863, 1872 (2016) (holding that for the purposes of the double jeopardy clause, puerto rico did not have any inherent sovereignty separate from that of the united states.) although there were two dissenters, only justice thomas objected to the quoted language. id. at 1877. 310 see discussion, supra notes 263–264. 311 united states v. lara, 541 u.s. 193, 200 (2004). see discussion, supra notes 272–273. 312 see discussion, supra notes 272–283. 336 columbia journal of race and law [vol. 8:2 trusts doctrine = tru.; cultural/religious = c/r; sovereign/political = sov./ pol.; win/loss = w/l cases citation w/l tlu sra iowa mutual ins. co. v. laplante 480 u.s. 9 (1987) win fcl sov. amoco production v. gambell 480 u.s. 531 (1987) loss sti econ. hodel v. irving 481 u.s. 704 (1987) loss con. econ. united states v. cherokee nation 480 u.s. 700 (1987) loss con. econ. california v. cabazon band 480 u.s. 202 (1987) win cls sov./ econ. lyng v. northwest cemetery ass. 485 u.s. 439 (1988) loss con. c/r oklahoma tax comm. v. graham 489 u.s. 838 (1989) loss proc. not applicable mississippi band of choctaw v. holyfield 490 u.s. 30 (1989) win sti sov./ pol. cotton petroleum v. new mexico 490 u.s. 163 (1989) loss fcl sov./ pol. duro v. reina 495 u.s. 676 (1990) loss fcl sov./ pol. brendale v. confederated tribes 492 u.s. 408 (1990) win and loss fcl sov./ pol. employment division v. smith 494 u.s. 872 (1990) loss con. c/r no. 2:277] last 30 years of fed. indian law 337 oklahoma tax comm. v. citizen band 498 u.s. 505 (1991) win com. sov./ pol. blatchford v. native village of noatak 501 u.s. 775 (1991) loss con. sov./ pol. county of yakima v. confederated tribes 502 u.s. 251 (1992) loss sti sov./ pol. oklahoma tax comm. v. sac & fox 508 u.s. 114 (1993) win com. sov./ pol. south dakota v. bourland 508 u.s. 679 (1993) loss com. sov./ pol. negonsott v. samuels 507 u.s. 99 (1993) loss sti sov./ pol. lincoln v. vigil 508 u.s. 182 (1993) loss proc. n/a hagen v. utah 510 u.s. 399 (1994) loss sti sov./ pol. dept. of taxation v. milhelm 512 u.s. 679 (1994) loss com. sov./ pol. ok.tax comm. v. chickasaw nation 515 u.s. 450 (1995) win com. sov./ pol. seminole tribe v. florida 517 u.s. 44 (1996) loss con. sov./ pol. strate v. a-1 contractors 520 u.s. 438 (1997) loss com. sov./ pol. babbitt v. youpee 519 u.s. 234 (1997) loss con. econ. idaho v. coeur d'alene 521 u.s. 261 (1997) loss si sov./ pol. alaska v. village of venetie 522 u.s. 520 (1998) loss si sov./ pol. 338 columbia journal of race and law [vol. 8:2 cass county v. leech lake band 524 u.s. 103 (1998) loss si sov./ pol. south dakota v. yankton sioux tribe 522 u.s. 329 (1998) loss si sov./ pol. montana v. crow tribe 523 u.s. 696 (1998) loss com. sov./ pol. kiowa tribe v. manufacturing technologies 523 u.s. 751 (1998) win com. sov./ pol. arizona dept. of revenue v. blaze 526 u.s. 32 (1999) loss com. sov./ pol. minnesota v. mille lacs band of chippewa 526 u.s. 172 (1999) win ti econ./ prop. el paso natural gas v. neztsosie 526 u.s. 473 (1999) loss stat. sov./ pol. amoco production v. southern ute tribe 526 u.s. 865 (1999) loss stat. econ./ prop. dept. of interior v. klamath river users 532 u.s. 1 (2000) loss com. tru. rice v. cayetano 528 u.s. 495 (2000) loss con. pol. arizona v. california 530 u.s. 392 (2000) win proc. prop. chickasaw nation v. united states 534 u.s. 84 (2001) loss stat. econ. nevada v. hicks 533 u.s. 353 (2001) loss com. sov. no. 2:277] last 30 years of fed. indian law 339 c&l enterprise v. citizens band potawatomi 532 u.s. 422 (2001) loss com. sov. atkinson trading v. shirley 532 u.s. 645 (2001) loss com. sov./ pol. idaho v. united states 533 u.s 262 (2001) win stat. prop. inyo county v. paiute shoshone indians 538 u.s. 701 (2003) loss stat. sov. united states v. navajo nation i 537 u.s. 488 (2003) loss com. tru. united states v. white mountain apache 537 u.s. 465 (2003) win com. tru. united states v. lara 541 u.s. 193 (2004) win con. sov./ pol. city of sherrill v. oneida indian nation 544 u.s. 197 (2005) loss com. sov./ pol. wagnon v. prairie band potawatomi 546 u.s. 95 (2005) loss com. sov./ pol. cherokee nation v. leavitt 543 u.s. 631 (2005) win stat. econ./ prop. plains commerce bank v. long family land 554 u.s. 316 (2008) loss com. sov./ pol. hawaii v. office of hawaiian affairs 556 u.s. 163 (2009) loss stat. prop. 340 columbia journal of race and law [vol. 8:2 united states v. navajo nation ii 556 u.s. 287 (2009) loss com. tru. carcieri v. salazar 555 u.s. 379 (2009) loss stat. sov. united states v. jicarilla apache nation 564 u.s. 162 (2011) loss com. tru. united states v. tohono o'odham 563 u.s. 307 (2011) loss proc. tru. salazar v. ramah navajo 132 s. ct. 2181 (2012) win stat. econ./ prop. match-e-benash-shewish v. patchack 567 u.s. 209 (2012) loss stat. tru. adoptive couple v. baby girl 133 s. ct. 2552 (2013) loss stat. sov./ pol. michigan v. bay mills indian community 124 u.s. 2024 (2014) win com. sov./ pol. nebraska v. parker 136 s. ct. 1072 (2016) win stat. sov./ pol. united states v. bryant 136 s. ct. 1954 (2016) win com. sov./ pol. menominee v. united states 136 s. ct. 750 (2016) loss proc. econ./ prop. dollar general v. mississippi band of choctaw 136 s. ct. 2159 (2016) win com. sov./ pol. lewis v. clark 137 s. ct. 1285 (2017) loss com. sov./ pol. matal v. tam 137 s. ct. 1744 (2017) loss con. c/r i. introduction ii. the court’s record in the last thirty years. a. the record when cases are divided according to subject matter. 1. sovereign/political rights: 38.5 cases. 2. economic/property rights: 14.5 cases. 3. rights derived from the federal-trust relationship: 8 cases. 4. cultural/religious rights: 3 cases. b. the record based on the type of law used to decide the cases. 1. federal common law decisions: 28.5 cases. 2. statutory interpretation cases: 21.5 cases. 3. constitutional law: 11 cases. 4. administrative/civil procedure law: 5 cases. c. the record when the cases are considered along time lines. iii. looking for equilibrium or judicial supremacy? a. evaluating congressional response to the court’s decisions. 1. indian gaming. 2. tribal criminal jurisdiction over non-indians and non-member indians. 3. indian land consolidation act:175f175f 4. overturning patchak: 5. overturning employment division v. smith.183f183f 6. responding to lyng v. northwest indian cemetery.188f188f b. evaluating the court’s reaction to federal legislation. 1. interpreting the indian gaming regulatory act (igra). 2. interpreting the alaska native claims settlement act (ancsa). 3. interpreting indian child welfare act (icwa). 4. interpreting section 5 of the indian reorganization act (ira). 5. indian land consolidation act. 6. interpreting the indian self determination act. c. the road not taken 1. tribal civil jurisdiction over non-members: 2. pre-empting state tax jurisdiction in indian country. 3. enacting a seminole fix. 4. recognizing native hawaiians. 5. overturning carcieri v. salazar.240f240f 6. repealing section 5 of the indian reorganization act (ira) or declaring it unconstitutional. 7. abrogating tribal sovereign immunity 8. amending the indian child welfare act (icwa) or declaring it unconstitutional. d. looking for a different kind of equilibrium through the use of federal common law. iv. conclusion v. appendix a microsoft word obanor final.docx 2016 columbia journal of race and law 169 dismantling discrimination in the stairways and halls of nycha using local, state, and national civil rights statutes dorielle e. obanor* this note explores various national and new york civil rights statutes that may be used to combat abusive police tactics in new york city housing authority (“nycha”) buildings. this note begins by providing a backdrop on how nycha buildings are policed in new york city and a description on how vertical patrols are conducted in nycha buildings. additionally, this note will trace the origin of police presence in nycha buildings. in the course of providing an overview of policing in nycha buildings, the note will examine some of the legal challenges that have been made to challenge vertical patrols and aggressive police tactics in new york city. ultimately, this note will propose that in challenging the new york police department’s (“nypd”) vertical patrols and policing in nycha buildings, residents should look to § 3617 of the fair housing act and new york state and city human rights laws. i. introduction ............................................................................................. 170 ii. history of security and police services in nycha housing ........ 172 a. the birth of vertical patrolling in nycha housing .................... 172 b. the negative implications of nypd’s vertical patrol policy ........ 173 iii. reforming and revising the patrol guide ........................................ 175 a. legal tools with limitations ........................................................... 176 1. section 1983 and monell claims .................................................. 177 2. section 3604(b) claims under the fair housing act ........................ 178 b. a preliminary settlement .................................................................. 180 iv. new remedies .............................................................................................. 181 a. section 3617 of the fair housing act .............................................. 181 b. making a § 3617 claim ..................................................................... 183 1. proving that one is a protected class member engaged in the exercise or enjoyment of his or her fair housing rights ........................... 184 2. demonstrating that the nypd has interfered with the rights of black and latino nycha tenants .................................................... 184 170 dismantling discrimination in the stairways and halls of nycha vol. 6:2 3. proving intent to discriminate ...................................................... 185 c. new york state human rights law and new york city human rights law ........................................................................................ 190 1. new york state human rights law ............................................. 190 2. new york city human rights law ............................................... 191 3. aiding and abetting liability ...................................................... 191 v. conclusion ................................................................................................. 192 i. introduction on november 21, 2014, akai gurley was fatally shot on the seventh floor of the louis pink housing projects in brooklyn, new york.1 as gurley and his girlfriend exited their apartment and entered the stairwell, two new york city police officers were conducting a vertical patrol inside the building.2 as the officers entered the dimly lit stairwell, one of the officers, patrolling with his gun drawn, fired his gun and killed gurley.3 gurley’s death is not the first shooting of an unarmed black man in a new york city housing authority (“nycha”) residence. in 2004, nineteen-year-old timothy stansbury, jr. was shot on the roof of a nycha building in the bedford-stuyvesant neighborhood of brooklyn, new york.4 ten years prior to the death of stansbury, thirteen-year-old nicholas heyward was murdered while playing “cops and robbers” with friends in the hallway of the gowanus houses in brooklyn, new york. an officer on a vertical patrol mistook the clicking of heyward’s orange plastic toy cork gun, and fired a shot at heyward, which led to his death that same day.5 in all three of these unfortunate shootings, the police on duty were conducting vertical patrols in nycha residences. during vertical patrols, officers of the new york police department (“nypd”) conduct * j.d. 2016, columbia law school; b.a. 2013, duke university. the author would like to thank professor diane houk for the guidance and insight she provided during the process of writing this note. the author would also like to thank professor olatunde johnson, for teaching the housing discrimination course in conjunction with professor houk that first exposed her to important issues within housing discrimination and the various tools that are being applied to combat them. lastly, the author would like to thank the staff of the columbia journal of race and law for their invaluable editing contributions. 1 christopher mathais, nypd officer shoots and kills unarmed man in brooklyn, huffington post (nov. 21, 2014), http://www.huffingtonpost.com/2014/11/21/akai-gurley-nypd-shooting-dead_n_6199428.html. on february 10, 2015, peter liang, the officer that shot gurley, was indicted by a grand jury on manslaughter, assault, and other criminal charges. chris fuchs, former nypd cop peter liang’s guilty verdict leaves a community divided, nbc news (feb. 13, 2016), http://www.nbcnews.com/news/asian-america/former-nypd-cop-peter-liang-s-guilty-verdict-leaves-communityn518056. 2 id. 3 ray sanchez, police: n.y. officer fatally shoots ‘innocent’ unarmed man, cnn news (dec. 8, 2014), http://www.cnn.com/2014/11/21/us/new-york-police-shooting/. 4 robert d. mcfadden & ian urbina, fatal shooting not justified, the police say, n.y. times, jan. 25, 2004, http://www.nytimes.com/2004/01/25/nyregion/fatal-shooting-not-justified-the-police-say.html. timothy stansbury jr. was one of twenty-five people to attend a birthday party for a teenage neighbor in a fourth-floor flat at 395 lexington avenue. at 1:30 a.m., stansbury, who was the d.j., went next door to his friend’s apartment to obtain more music. after picking up several cds, stansbury, along with several friends, climbed the apartment’s stairs to the roof to return to the party. when stansbury opened the door to the roof, he was shot and killed. id. 5 new york lawyers for the public interest, no place like home: a preliminary report on police interactions with public housing residents in new york city 6 (2008), http://www.nylpi.org/wpcontent/uploads/bsk-pdf-manager/170_2008_copp_report_with_new_cover.pdf (last visited apr. 17, 2016). 2016 columbia journal of race and law 171 a top-down sweep, sometimes with their weapons drawn as they survey and patrol the premises of nycha buildings.6 section 212-59 of the nypd patrol guide, effective july 1, 2013, defines vertical patrolling as: tactically planned patrol[s] of the interior hallways, stairways and rooftops of multiple dwelling buildings [. . .] where officers are to conduct inspections of roof landing, elevator rooms and any other installations [. . .] patrol each floor, staircase and hallway within the building from the top floor to the ground floor [. . .] be alert for persons who may be engaged in criminal activity, including potential trespassers.7 these patrols are aimed at assisting nycha in enforcing its rules, minimizing criminal activity, and providing a safe environment for residents and their guests.8 despite their intended purpose, there have been longstanding concerns about the manner in which police conduct vertical patrols in communities of color9 across new york city, and specifically, nycha buildings. vertical patrols and aggressive policing tactics have become a chronic nuisance for people of color living in nycha housing, where residents complain daily of discourtesy, constant harassment, and inappropriate stops by police officers.10 the presence of the nypd in nycha buildings has not only brought unwelcome interactions and attention from police officers, but it has also brought many cases of frivolous arrests of residents and their guests for trespassing.11 this note argues that in challenging the discriminatory manner in which the nypd utilizes vertical patrols and aggressive policing procedures in nycha buildings, individuals should look to national and local civil rights statutes, namely the fair housing act, and new york state and city human rights laws. bringing claims under these laws has been largely unexplored in the context of vertical patrolling, and in the context of abusive police tactics nationwide. this note seeks to shed light on how these statutes may serve as alternative courses of action in combatting this growing problem facing people of color living in nycha housing. part ii of this note details the history of police presence in nycha housing and provides background on the patterns of vertical patrolling and aggressive police tactics in these buildings. part iii will examine recent litigation on this issue and discuss some of the limitations of the current legal tactics in combatting police misconduct and aggressive policing tactics in minority communities. the analysis in part iii will largely build on davis v. city of new york, a class action lawsuit filed against the city of new york and nycha.12 although a settlement among the parties in davis has been reached, this case raises important legal questions and issues that this note seeks to address. finally, part iv advocates for the use of various civil rights statutes to challenge the discriminatory manner in which vertical patrols are used in nycha housing. this section will focus on § 3617 of the fair housing act13 and new york state and new york city human rights laws. 6 id. at 4–5. 7 see nypd, new york city police department patrol guide §§ 212-59, 212-60 (2013). 8 id. 9 for the purposes of this note, “communities of color” and “people of color” will be used to describe black and latino communities in new york city. 10 see clair macdougall, nypd sued over housing project: vertical patrols, huffington post (july 15, 2010), http://www.huffingtonpost.com/clair-macdougall/nypd-sued-over-housing-pr_b_648259.html. 11 see fagan declaration for plaintiff at 1, davis v. city of new york, 959 f. supp. 2d 324 (s.d.n.y. 2012). 12 davis v. city of new york, 902 f. supp. 2d 405, 408 (s.d.n.y. 2012) [hereinafter fagan declaration]. 13 42 u.s.c. § 3617 (2006). 172 dismantling discrimination in the stairways and halls of nycha vol. 6:2 ii. history of security and police services in nycha housing the first nycha buildings were constructed in 1934.14 just five years later, the state of new york passed the public housing law of 1939, which led to the country’s first subsidized public housing program and the construction of hundreds of housing developments for low-income families.15 today, nycha is the largest public housing authority in north america.16 the residents of nycha are low-income individuals and families, composed primarily, but not exclusively, of people of color.17 the nypd, under an umbrella unit known as the “housing bureau,” currently provides police services to nycha buildings; however, prior to 1994, a special housing police force, known as housing authority police department, patrolled nycha housing.18 in 1994, the housing authority police department merged with the nypd, forming the housing bureau.19 today, the nypd housing bureau is responsible for maintaining safety and providing security and police services to more than 400,000 residents, employees, and public housing guests throughout new york city.20 a. the birth of vertical patrolling in nycha housing in 1989, the united states department of housing and urban development (“hud”) launched the drug elimination program (“dep”) largely to eliminate drug-related crimes in public housing across the nation.21 hud is responsible for administering federal aid to local housing agencies that manage low-income housing.22 in addition, hud assists in the technical and professional planning, developing, and managing of these developments.23 in fulfilling this role, hud implemented dep, and sought to strengthen formal and informal social control mechanisms in public housing developments through an increase in police presence and targeted prosecutions.24 in 1990, nycha sought dep funds from hud and implemented its local dep program known as operation safe home (“osh”).25 as part of the osh policy, vertical patrols were one of the main procedures used in buildings with high-level drug crimes.26 during these patrols, osh teams comprised of five police officers and one sergeant would patrol indoor and outdoor areas of nycha housing, conducting systematic 14 about nycha, the new york city housing authority, http://www.nyc.gov/html/nycha/html/about/nycha70_timeline.shtml (last visited apr. 17, 2016). 15 id. 16 facts about nycha, the new york city housing authority, https://www1.nyc.gov/assets/nycha/downloads/pdf/factsheet.pdf (last visited apr. 17, 2016). 17 new york lawyers for the public interest, supra note 5, at 4. 18 see id. 19 id. the nycha and the nypd entered into a memorandum of understanding, which required nycha to pay the city for nypd police services. following the merger, the new york city police department housing bureau was created to provide the security and delivery of police services to individuals using public housing throughout new york city. id. 20 housing bureau, new york city police department, http://www.nyc.gov/html/nypd/html/housing_bureau/housing.shtml (last visited apr. 17, 2016). 21 jeffrey fagan, garth davies & jan holland, the paradox of the drug elimination program in new york city public housing, 13 geo. j. pov. l. & pol’y 415, 423 (2006). 22 hud’s public housing program, the united states department of housing and urban development, http://portal.hud.gov/hudportal/hud?src=/topics/rental_assistance/phprog (last visited june 2, 2016). 23 id. 24 id. at 423, 425. 25 see id. at 417. 26 id. at 427. 2016 columbia journal of race and law 173 building patrols lasting from several weeks to several months.27 osh officers also encouraged residents to form tenant patrols, providing guidance and training to these resident-led patrols.28 in 1991, the osh program had forty-eight officers overall, with twelve officers assigned to each nycha service area.29 by 1994, following the formation of the housing bureau, osh grew to over 800 officers and nineteen sergeants.30 in 2002, the bush administration withdrew funding from osh; however, police presence and vertical patrol practice in nycha buildings continues today.31 b. the negative implications of nypd’s vertical patrol policy today, during a vertical patrol, nypd officers systematically check and monitor numerous buildings by scanning roof landings, stairwells, and lobbies of various new york city housing projects.32 during the sweeps, officers observe and take note of any maintenance or safety issues, and survey the surroundings for any criminal activity, which includes trespassing.33 this task generally falls to some of the least experienced officers in the housing bureau.34 although the nypd has praised vertical patrol practices as a tactic that helps ensure the safety of nycha buildings,35 many have criticized vertical patrols. critics blame the tactic for the tragic deaths of innocent individuals, as well as the unconstitutional stops, frisks, and arrests of nycha residents.36 on a routine basis, police have improperly detained or arrested individuals for trespass when they had legitimate reasons for being on nycha property. residents also complain of excessive stop-and-frisk detentions during these patrols.37 a survey conducted at the thomas jefferson houses38 revealed that nypd officers routinely stopped the majority of the residents, as well as their invited guests.39 forty-one percent of surveyed residents and their visitors reported being stopped up to five times per year. sixteen percent reported being stopped five to ten times per year. nineteen percent reported being stopped ten to twenty times per year, and twenty-four percent claimed to be stopped more than twenty times per year.40 the majority of the people surveyed reported that they were often stopped and asked for identification when they were merely entering or exiting their residence.41 27 id. 28 hud’s public housing program, supra note 22. 29 id. at 427–28. nycha service areas were administrative units that were very similar to police precincts. see id. 30 id. 31 new york lawyers for the public interest, supra note 5, at 4. after 2002, nycha bore the brunt of payments to new york city for nycha policing. despite this change, police staffing did not diminish. id. 32 frequently asked questions, new york city police department, http://www.nyc.gov/html/nypd/html/faq/faq_police.shtml (last visited apr. 17, 2016). 33 new york city police department, supra note 7, at §§ 212-59, 212-60. 34 see tina susman, fatal new york police shooting stokes new criticism, l.a. times (nov. 22, 2014), http://www.latimes.com/nation/la-na-nyc-shooting-20141123-story.html. twenty-seven-year-old peter liang, the officer responsible for shooting akai gurley, was a new police officer on the force. id. 35 see michael schwirtz, public housing patrols can mean safety or danger, n.y. times (nov. 21, 2014), http://www.nytimes.com/2014/11/22/nyregion/housing-patrols-can-mean-safety-or-peril-to-residents.html?_r=0 (reporting that in a press conference on november 21, 2014, nypd commissioner william bratton contended that vertical patrols have served an important role in the nypd’s ability to police housing projects in new york city). 36 see id. the civilian review board received an increase in police misconduct complaints by a magnitude of sixty-six percent between 2002 and 2006. status report january-june 2007, new york city civilian complaint review bd., june 2007, at 11, http://www.nyc.gov/html/ccrb/downloads/pdf/ccrbsemi_2007_jan_june.pdf. 37 complaint at 2, davis v. city of new york, 902 f. supp. 2d 405 (s.d.n.y. 2012) [hereinafter davis complaint]. 38 the thomas jefferson houses in manhattan have eighteen buildings, with 1,487 apartment units for an estimated 3,729 residents. see nycha housing developments: jefferson houses, new york city housing authority, http://www.nyc.gov/html/nycha/html/developments/manjefferson.shtml (last visited apr. 17, 2016). 39 new york lawyers for the public interest, supra note 5, at 10. 40 id. 41 id. at 11. 174 dismantling discrimination in the stairways and halls of nycha vol. 6:2 respondents reported stops, searches, arrests, and excessive force as frequent occurrences42 in the thomas jefferson houses. surveyors found similar results in a survey conducted with residents living at the walt whitman houses.43 while some may argue that suspicion likely prompted these alleged stops, residents reported being stopped by the same officer on routine vertical patrols, “which indicates that the officers likely recognize[d] them as residents of the building, and would have no reason to believe they were trespassing.”44 aside from the survey, several cases across new york have corroborated these systematic suspicionless stops, where courts have found that police officers detained individuals during vertical patrols when they lacked any objectively credible reason for doing so.45 vertical patrols are also extremely dangerous. unlike street patrols, vertical patrols do not occur in an open view situation.46 as a consequence, officers are not aware of what they may confront when walking up steep flights of steps or turning tight corners in nycha buildings. these patrols often require rookie officers to make split-second decisions that can be life threatening to themselves and others. these dangerous patrols have led to the fatal shootings of countless people of color and police officers alike.47 the manner in which members of the nypd conduct these patrols is not the only aspect of the policy under scrutiny. critics assert that the nypd’s policy overwhelmingly impacts black and latino communities.48 according to an expert report, in 2012, blacks and latinos represented over ninety percent of all persons stopped in nycha buildings.49 the report also found significant racial disparities in the context of trespass stops and arrests, even after controlling for crime conditions, patrol strength, socio-economic conditions, and other policy-relevant factors.50 considering that the vast majority of nycha residents are people of color, these figures are not surprising. however, the expert report also found that citywide, blacks and latinos account for over eighty percent of all persons stopped.51 additionally, there are significantly more total stops and arrests in nycha public housing sites compared to the immediate surrounding areas.52 these disparities are consistent with many findings in the thomas jefferson houses survey. in the survey, seventy-one percent of individuals who 42 id. at 10. 43 new york lawyers for the public interest, supra note 5, at 12. walt whitman houses in brooklyn, ny consists of fifteen buildings, with 1,636 apartment units for about 4,276 people. thomas jefferson houses in manhattan has eighteen buildings, with 1,487 apartment units for an estimated 3,729 residents. nycha housing developments: jefferson houses: whitman, walt houses, new york city housing authority, http://www.nyc.gov/html/nycha/html/developments/bklynwhitmanhouses.shtml (last visited apr. 17, 2016). 44 new york lawyers for the public interest, supra note 5, at 11. 45 see people v. taylor, no. 54639c-2005, 2006 wl 1348745, at *3 (n.y. sup. ct. may 12, 2006) (finding officers had no legal basis to approach and request information from defendant); people v. ventura, 30 misc. 3d 587, 590, 913 n.y.s.2d 543 546 (sup. ct. 2010) (finding officer’s initial questioning, search, and arrest during a vertical patrol based solely on individual’s presence in the lobby unlawful). 46 barry paddock, nypd’s ‘vertical patrols’ of housing project stairwells under criticism after shooting death of unarmed man, new york daily news (nov. 21, 2014), http://www.nydailynews.com/new-york/nyc-crime/nypd-verticalpatrols-housing-projects-controversial-article-1.2019696. 47see supra text accompanying notes 1–5. in 1988, officer anthony mcclean was killed after observing a crack dealer during a vertical patrol. in 2012, nypd officer brian groves was shot at close range, but was saved by his bulletresistant vest, while patrolling a nycha building in the lower east side of manhattan, new york. id. 48 davis complaint, supra note 37, at 3. 49 fagan declaration, supra note 11, at 2. 50 id. 51 id. 52 id. 2016 columbia journal of race and law 175 reported being stopped were african american, and twenty-eight percent were latino.53 members of the nypd have even corroborated the discriminatory nature of the nypd’s policing tactics.54 iii. reforming and revising the patrol guide in 2009, the civilian complaint review board (“ccrb”) noticed an increase in the number of complaints it received from individuals across new york who alleged that they had been improperly stopped in and around nycha buildings.55 after further investigation, the ccrb met with the nypd to discuss the rise in allegations of improper stops in nycha buildings, and proposed a number of recommendations to curb the rising number of complaints.56 in response to the ccrb’s recommendations and data, the nypd made several changes to patrol guide provisions governing vertical patrols in nycha buildings.57 the nypd revised patrol guide 212-60, entitled “interior vertical patrol of housing authority buildings,” in an effort to provide additional guidance to police officers patrolling nycha properties.58 a year later, interim order number 23, a program targeted at “assist[ing] the housing authority in enforcing its rules, limiting criminal activity, providing a safe and secure environment, and ensuring the habitability of its residential buildings for housing authority residents and their guests by performing interior vertical patrols,”59 replaced patrol guide 212-60. along with clearer guidelines, interim order number 23 included a ninety-minute training curriculum that sought to explain: 1) the purpose of interior vertical patrols within nycha buildings; 2) the importance of proper interactions between officers and nycha residents; and 3) a full description of the new changes in the nypd’s policy in conducting interior vertical patrols of housing authority buildings.60 the new order was implemented in 2010, and since its implementation, over ninety percent of the targeted nypd personnel have been trained.61 at the time changes to the nypd’s vertical patrolling policies were contemplated, plaintiffs brought three lawsuits62 in federal court challenging the nypd’s discriminatory stop and frisk policy in nycha housing, private buildings, and various communities of color across new york city. in 2008, a class of minority new york city residents filed a complaint against new york city challenging the nypd’s practice of racial profiling, alleging that the nypd’s stop-and-frisk practices were unconstitutional.63 four years later, a class of minority citizens challenged the nypd’s stop-and frisk practices in thousands of private apartment buildings 53 new york lawyers for the public interest, supra note 5, at 12. 54 see jean shin, officer accuses nypd of racial profiling, cnn news (dec. 31, 2009), http://www.cnn.com/2009/crime/12/31/officer.racial.profiling/. (sergeant mcreynolds alleged he was a victim of racial profiling when police officers stopped him during a vertical sweep in his girlfriend’s apartment building in bronx). see also michelle conlin, off duty, black cops in new york feel threat from fellow police, reuters (dec. 23, 2014), http://www.reuters.com/article/2014/12/23/us-usa-police-nypd-race-insight-iduskbn0k11ev20141223. (“reuters interviewed [twenty-five] african american male officers on the nypd, [fifteen] of whom are retired and [ten] of whom are still serving. all but one said that, when off duty and out of uniform, they had been victims of racial profiling” in various contexts). 55 see press release, civilian complaint review bd., based on ccrb recommendation, nypd retrains officers who patrol nycha buildings (oct. 27, 2010), http://www.nyc.gov/html/ccrb/downloads/pdf/police_retraining_10_27_2010.pdf (last visited apr. 17, 2016). 56 id. (recommending retraining of nypd officers, specifically emphasizing that stops in nycha buildings require reasonable suspicion). 57 id. at 2. 58 davis v. city of new york, 812 f. supp. 2d 333, 335 (s.d.n.y. 2011). 59 id. at 336. 60 id. 61 id. at 336–37. 62 floyd v. city of new york, 959 f. supp. 2d 668 (s.d.n.y. 2013); ligon v. city of new york, 925 f. supp. 2d 478 (s.d.n.y. 2013); davis v. city of new york, 902 f. supp. 2d 405 (s.d.n.y. 2012). 63 floyd, 283 f.r.d. 153. 176 dismantling discrimination in the stairways and halls of nycha vol. 6:2 across new york city.64 lastly, in davis v. city of new york, a group comprised of nycha residents and visitors filed suit against the city of new york and nycha challenging the nypd’s practice of unlawful stops and arrests in nycha buildings.65 in the complaint, the class challenged the nypd’s implementation of the vertical patrol and trespass arrest policy, alleging it resulted in a pattern and practice of illegal stops, seizures, questioning, searches, and false arrests.66 as this note aims to examine the potential remedial tools available to residents of nycha buildings, it will focus exclusively on davis. despite the nypd’s 2009 vertical patrol policy reform, which occurred in the backdrop of davis, judge shira scheindlin of the united states district court for the southern district of new york held in a summary judgment proceeding on july 5, 2011 that the city failed to establish the new police patrol guide, and that the patrol training curriculum had rendered moot the plaintiffs’ §1983 municipal67 liability claim for equitable relief. furthermore, judge scheindlin stated that the efficacy of the new policy guide and training curriculum were both unknown and disputed.68 since judge scheindlin’s opinion, the new york civilian complaint review board has further reviewed and analyzed trespass-related complaints filed by tenants of nycha housing.69 in its second review during a sixteen-month span, the agency found an overall decrease in the number of improper stop and question complaints, from seventy-six complaints in the agency’s 2010 study to fifty-nine in its 2012 study.70 however, despite the decrease in complaints, the ccrb analysis showed a large increase in the substantiation rate of complaints.71 though the ccrb is still investigating data on complaints of police misconduct in nycha buildings, the statistics released in the monthly board meeting demonstrate that the nypd’s patrolling reform hasn’t done enough to stop the practice of improper trespassing stops in nycha buildings. a. legal tools with limitations to better understand the utility of housing laws in challenging vertical patrols and the nypd’s discriminatory policing practices, it is important to discuss davis, a class action suit challenging these practices. on august 30, 2013, judge scheindlin granted class certification in davis.72 the plaintiff class consisted of two subclasses, including the “arrested plaintiffs” and the “resident plaintiffs.”73 the “arrested plaintiffs” consisted of black and latino nycha residents and guests who have been, and who then were, at risk of being stopped, seized, questioned, searched or falsely arrested for trespass without any probable cause in or around nycha buildings.74 the “resident plaintiffs” subclass consisted of black and latino nycha residents who live in buildings subject to the nypd’s vertical patrol policy and trespass arrest practices.75 64 ligon, 925 f. supp. 2d 478. 65 case: davis v. city of new york, naacp legal defense fund, http://www.naacpldf.org/case/davis-vs-citynew-york (last visited apr. 17, 2016). 66 davis complaint, supra note 37, at 408. 67 davis, 812 f. supp. 2d at 333. 68 id. at 339–40. 69 memorandum from bd. members of civilian complaint review bd. to marcos soler & denis mccormick (may 31, 2013), http://home2.nyc.gov/html/ccrb/pdf/patrolled_housing_memo.pdf. 70 id. at 2. 71 id. 72 federal judge grants class certification in case challenging discriminatory use of stop-and-arrests for trespass in new york city’s public housing, naacp legal defense fund, http://www.naacpldf.org/update/federal-judge-grantsclass-certification-case-challenging-discriminatory-use-stops-and-arrest (last visited apr. 17, 2016). 73 davis complaint, supra note 37, at 5. rule 23(c)(5) of the frcp authorizes dividing a class into subclasses that are each treated as a class under rule 23 when appropriate. fed. r. civ. p. 23(c)(5); fed. r. civ. p. 23. 74 davis complaint, supra note 37, at 6. 75 id. 2016 columbia journal of race and law 177 in the davis complaint, residents and visitors charged the city of new york and nycha with violating their constitutional rights under the fourth and fifteenth amendments, the civil rights acts of 1964 and 1968, the fair housing act, the united states housing act, and laws of the state of new york and new york city.76 though the case was not fully litigated,77 this section will discuss the utility and limitations of two of the claims brought in davis: § 3604(b) and § 1983 claims. in most lawsuits challenging police-officer misconduct, plaintiffs allege a violation of their civil rights under 42 u.s.c. § 1983.78 furthermore, § 3604(b) of the fair housing act, a largely unused authority, has been the topic of recent scholarship in the context of challenging aggressive police enforcement tactics nationwide.79 examining challenges under these two provisions will not only provide a useful understanding of how individuals have challenged police misconduct, but also will demonstrate the usefulness of exploring new tactics under various civil rights laws. following a discussion of these two provisions, this note will provide a broad overview of the proposed preliminary settlement terms in davis. 1. section 1983 and monell claims section 1983 allows individuals to bring a private cause of action for violations of their constitutional rights against an actor acting under the color of state law.80 section 1983 is the most frequently used basis for federal police misconduct actions against state or local officers.81 most lawsuits charging a police officer with misconduct will also include the municipality as a co-defendant, and in some cases supervisory personnel as well.82 however, holding municipalities liable for the unconstitutional acts of one of its officials remains difficult in actions for damages under § 1983.83 in davis, the class of residents brought § 1983 claims against nycha and the city of new york.84 in monell v. new york city department of school services,85 the united states supreme court held that under certain circumstances a local government may be considered a person or actor, rendering it subject to suit under § 1983 of title 42 of the united states code.86 under a monell claim, plaintiffs must prove that actions pursuant to official municipal policy caused the alleged constitutional violation.87 one method of establishing municipal 76 id. at 1. 77 the parties reached a preliminary settlement on january 7, 2015. see preliminary settlement reached in federal class action lawsuit challenging police practices in nyc public housing: major nypd reforms to be implemented in court-ordered monitoring process, naacp legal defense fund, http://www.naacpldf.org/update/preliminary-settlement-reachedfederal-class-action-lawsuit-challenging-police-practices-nyc(last visited apr. 17, 2016). see infra pp. 18–20. 78 see jim t. priest & reggie n. whitten, defense of a police misconduct suit, 38 am. jur. trials 493 (2016) (originally published in 1989). 79 see roberto concepción, jr., the untapped potential of the fair housing act in addressing aggressive enforcement of “walking while black or brown”, 17 u. pa. j.l. & soc. change 383, 385–86 (2014). 80 42 u.s.c. § 1983 (1996). 81 lisa d. hawke, municipal liability and respondeat superior: an empirical study and analysis, 38 suffolk u. l. rev. 831, 832 (2005). 82 38 am. jur. trials 493. although a municipality cannot be liable under § 1983 on a theory of respondeat superior, persons can allege that decision of municipal policy maker, or approval from municipal decision maker, resulted in the police conduct in question. see, e.g., pembaur v. city of cincinnati, 475 u.s. 469 (1986); city of st. louis v. praprotnik, 485 u.s. 112 (1988). 83 id. (citing sheldon h. nahmod, civil rights and civil liberties litigation: the law of section 1983 1-4 (4th ed. 2002)). 84 davis complaint, supra note 37, at 2. 85 monell v. new york city dep’t of school services, 436 u.s. 658 (1978). 86 id. at 690 (“our analysis of the legislative history of the civil rights act of 1871 compels the conclusion that congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.”). 87 id. at 691. 178 dismantling discrimination in the stairways and halls of nycha vol. 6:2 liability under monell is showing that there is a deliberate indifference on the part of high-level officials.88 this standard is stringent, and in the second circuit, plaintiffs are required to show that the policymakers’ inaction or indifference was not just the result of mere negligence, but also a conscious choice.89 this burdensome standard severely limits the liability of municipalities for unlawful police conduct. proving conscious choice is extremely difficult for plaintiffs, which often results in fewer victorious claims under § 1983.90 in many cases, municipalities indemnify officers if the alleged misconduct is within the line of duty.91 indemnifying particular municipal officers generally fails to correct policies or patterns of abuse within a police unit, providing no incentive for officers not indemnified in the matter to correct their misconduct.92 even if a plaintiff is able to prove a constitutional violation under § 1983, a defendant officer may still avoid liability by proving that he or she acted with a reasonable and good faith belief that the conduct in question was legal.93 in practice, judges almost always find that an officer acted in good faith.94 notwithstanding these limitations, § 1983 plaintiffs are hampered by evidentiary and procedural difficulties, corroboration problems, the police “code of silence,” and discovery battles to access confidential police documents.95 despite many limitations and criticisms against § 1983 claims, they remain an important tool for challenging police misconduct; however, plaintiffs may find greater utility under the civil rights statutes discussed later in this note. 2. section 3604(b) claims under the fair housing act in davis, the plaintiffs alleged that the city of new york, along with nycha, violated the rights of resident-plaintiffs and members of the class under the fha.96 the plaintiffs alleged that the defendants discriminated on the basis of race or national origin in the terms, conditions, or privileges of rental agreements, or in the provision of services or facilities in connection with the rental of a dwelling in violation of 42 u.s.c. § 3604(b).97 recent scholarship has discussed the utility of using § 3604(b) of the fha as a means of challenging aggressive policing;98 however, plaintiffs may find it particularly difficult to use this tactic to challenge vertical patrols and aggressive policing. one of the potential shortcomings is a lack of clarity regarding how the section applies to conduct occurring after the initial rental or sale of a dwelling when proof of constructive or actual eviction is absent. circuit courts are split in determining whether the provision prohibits only discrimination 88 davis v. city of new york, 959 f. supp. 2d 324, 338 (s.d.n.y. 2013) (“one way to establish the existence of a municipal policy is through a showing of ‘deliberate indifference’ by high-level officials.”). 89 id. 90 see hawke, supra note 81, at 849 (“many of the city attorneys reasoned that the current doctrine makes it difficult for a plaintiff to prove a case against the city, resulting in fewer victorious claims for plaintiffs.”). 91 revisiting who is guarding the guardians, chapter 5: remedies and legal developments, united states comm’n on civil rights, http://www.usccr.gov/pubs/guard/ch5.htm#_ftnref13 (last visited apr. 17, 2016). 92 concepción, supra note79, at 391–92. 93 see street v. cherba, 662 f.2d 1037, 1039 (4th cir. 1981) (“[i]t is well-established that a police officer is entitled to qualified immunity from an assessment of damages against him if he acted with a reasonable and good faith belief that he had acted lawfully.”). see also bivens v. six unknown named agents, 456 f.2d 1339, 1341 (2d cir. 1971) (“[i]t is a valid defense [. . .] to allege and prove that the federal agent or other federal police officer acted in the matter complained of in good faith and with a reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted.”). 94 marshall miller, police brutality, 17 yale l. & pol’y rev. 149, 156 (1998). 95 id. at 155. 96 davis complaint, supra note 37, at 44. 97 davis complaint, supra note 37, at 44. 98 see, e.g., concepción, supra note 79, at 397. 2016 columbia journal of race and law 179 prior to and at the time of the sale or initial rental, or if the provision applies to conduct after acquisition or during the term of the lease.99 section 3604 of the fha act states that: to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.100 the root of this disagreement lies in conflicting statutory interpretation, namely the meaning of “therewith” in the phrase “in connection therewith.”101 one of the competing interpretations of this language is that the word “therewith” solely references the “sale or rental of a dwelling” clause. thus, any discriminatory act, including the provision of police services after an individual has purchased or rented his or her dwelling, would fall outside of the scope of the provision.102 another interpretation is that the language refers to a dwelling generally, whereby a claim challenging police services following an acquisition or rental would fall within the scope of § 3604(b).103 though the latter interpretation of the act would enable a plaintiff challenging vertical patrols to state a cognizable claim under § 3406(b), many courts have adopted the narrower interpretation.104 this narrow reading could prevent plaintiffs from bringing claims challenging discriminatory police services in nycha because the conduct alleged would have occurred “post-acquisition.” in a summary judgment motion in davis, judge scheindlin held that § 3604(b) is best understood to prohibit postand pre-acquisition discrimination in the provision of housing related services.105 while judge scheindlin’s decision provided insight into how the davis court viewed the plaintiffs’ claims, the united states court of appeals for the second circuit has not addressed this issue.106 despite the lack of clarity on this issue, a plaintiff bringing a claim in the rental context may still have a strong claim under § 3604(b). in richards v. bono, the court held that the narrow reading of § 3604(b) did not extend to cases of post-acquisition rental discrimination because unlike a sale, a rental arrangement involved an ongoing relationship between a landlord and tenant, whereby the landlord typically retains obligations such as the duty to make repairs or provide services and facilities.107 though no other courts have adopted this rationale when applying § 3604(b) to post-acquisition claims, richards may serve as persuasive authority for residentplaintiffs in nycha housing, who as tenants have an ongoing relationship with nycha as their landlord. while disagreements regarding § 3604(b)’s applicability to post-acquisition claims may be an issue of concern for future plaintiffs challenging vertical patrolling, most courts have held that this subsection applies to housing-related services generally provided by governmental units, such as police and fire protection or 99 compare cox v. city of dallas, 430 f.3d 734, 745-6 (5th cir. 2005) (holding that the law does not prohibit postacquisition discrimination unless there has been constructive eviction), with committee concerning cmty. improvement v. city of modesto, 583 f.3d 690, 711 (9th cir. 2009). see also bloch v. frischholz, 587 f.3d 771, 779 (7th cir. 2009) (declaring fair housing act can reach post-acquisition-discrimination). 100 42 u.s.c. § 3604(b) (1988). 101 benjamin a. schepis, making the fair housing act more fair: permitting section 3604(b) to provide relief for postoccupancy discrimination in the provision of municipal services—a historical view, 41 u. tol. l. rev. 411, 425 (2010) (citing lopez v. city of dallas, no. 3:03-cv-2223-m, 20004 u.s. dist. lexis 18220, at *21–22 (n.d. tex. sept. 9, 2004)). 102 see id. 103 id. 104 see cox v. city of dallas, 430 f.3d 734, 745 (5th cir. 2005) (holding that the city’s allegedly racially discriminatory failure to prevent illegal dumping in predominantly african american neighborhoods across dallas was not connected to sale or rental of any dwelling, and thus was not a cognizable claim under § 3604(b) of the fha). see also halprin v. prairie single family homes, 388 f.3d 327, 329 (7th cir. 2004). 105 davis v. city of new york, 902 f. supp. 2d 405, 436 (s.d.n.y. 2012). 106 id. at 435. 107 richards v. bono, no. 5:04-cv484-oc-10grj, 2005 wl 1065141, at *3 (m.d. fla. may 2, 2005). 180 dismantling discrimination in the stairways and halls of nycha vol. 6:2 garbage collection.108 additionally, this interpretation has been extended not only to cases where plaintiffs have alleged a refusal to provide police protection,109 but also in instances where plaintiffs have alleged abusive police services.110 despite the circuit split, § 3604(b) remains an important tool to consider in the effort to combat aggressive policing policies in new york city and across the nation. b. a preliminary settlement on january 7, 2015, both parties to the davis litigation announced that they reached a preliminary settlement agreement to resolve the five-year-old federal class-action suit.111 though the parties have not released a detailed settlement agreement, the preliminary summary of the settlement includes a revision of the nypd’s patrol guide 212-60.112 the revisions include an instruction to officers on how to conduct vertical patrols, a requirement that nypd officers must complete “trespass crime fact sheets” after making arrests in or around nycha residences, and greater clarification on procedures an officer must follow when he or she observes criminal and non-criminal violations.113 additionally, the nypd has agreed to comply with the court-ordered monitoring process in the floyd v. city of new york litigation.114 an ineffective settlement reached by parties in daniels v. city of new york115 prompted the floyd litigation.116 floyd was a case which challenged the nypd’s policy and practice of stopping-and-frisking people of color without reasonable suspicion, as required by the fourth amendment. in daniels, the parties reached a settlement in 2003 that required retraining of police and court monitoring; however, updated data revealed that there was a demonstrable increase in stop-and-frisks from 2002 to 2006, including extreme disparities in “stop” rates based on race, ethnicity, or national origin.117 the settlement in daniels led to few changes in the manner in which the nypd conducted stop-and frisks, and as mentioned above, failure to fully comply with the consent decree and the increase in unconstitutional stop-and-frisks ultimately prompted the center for constitutional rights to file floyd, a class action against the nypd just five years after the initial settlement. though the davis settlement is surely a step in the right direction, it is unclear whether this agreement can erase the deeply entrenched legacy of aggressive policing in and around nycha buildings. the daniels settlement demonstrates that extensive court monitoring and police retraining may not remedy improper police tactics that target individuals of color. furthermore, this settlement does not rid nycha of vertical policing, but merely retrains and clarifies permissible and impermissible procedures that may be used during vertical 108 southend neighborhood imp. ass’n v. st. clair cnty., 743 f.2d 1207, 1210 (7th cir. 1984). 109 see the comm. concerning cmty. improvement v. city of modesto, 583 f.3d 690 699 (9th cir. 2009) (plaintiffs brought a claim regarding law enforcement response time). 110 see concepción, supra note 79, at 397. see doe v. county of kankakee, no. 03 c8786, 2004 u.s. dist. lexis 12740, at *14–17 (n.d. ill. july 6, 2004) (plaintiffs alleged that the city and county selectively applied law enforcement tactics to the detriment of the complex’s predominately african american residents). 111 preliminary settlement reached in federal class action lawsuit challenging police practices in nyc public housing; major nypd reforms to be implemented in court-ordered monitoring process, naacp legal defense fund, http://www.naacpldf.org/update/preliminary-settlement-reached-federal-class-action-lawsuit-challenging-policepractices-nyc (last visited apr. 17, 2016). 112 id. 113 see preliminary settlement at 1, davis v. city of new york, docket no. 1:10-cv-00699 (s.d.n.y. jan. 28, 2010). 114 see floyd v. city of new york, 959 f. supp. 2d 668 (s.d.n.y. 2013). see supra text accompanying notes 50– 58. 115 daniels v. city of new york, no. 99-1695 (s.d.n.y. 1999). 116 id. 117 id. (citing report: racial disparity in nypd stop and frisks, center for constitutional rights (feb. 3, 2009), http://ccrjustice.org/home/get-involved/tools-resources/publications/report-racial-disparity-nypd-stop-andfrisks). 2016 columbia journal of race and law 181 patrols, a revision allegedly made in 2010 that had little impact on the substantiation of complaints of police misconduct.118 considering the continued disparities in stop-and-frisk arrests and the dramatic impact this policy, along with vertical patrols, continues to have on black and latino residents in nycha buildings, it is clear that the culture of violence and discriminatory nature of these policies are deeply entrenched and not limited to misconduct of just a few officers. until these policies are removed, or alternative policing models are implemented, the housing rights of individuals in nycha buildings will likely continue to be violated. for this reason, individuals should consider utilizing housing laws to challenge racialized policing. iv. new remedies though both parties have reached a preliminary settlement regarding this issue, the davis settlement does not undermine this note’s proposed remedies or the private right of action they may offer if proposed reforms are not effective. additionally, many of the proposed civil rights and housing law claims may provide a useful means of thinking about remedying aggressive police tactics in communities of color outside new york state. the fair housing act,119 enacted by congress in 1968, the new york state human rights law,120 and the new york city human rights law121 all provide alternative causes of action to nycha residents who encounter discrimination during their tenancy. all three laws are similarly structured and provide both private and administrative mechanisms to investigate and challenge alleged acts of discrimination. despite the similarities, these three statutes vary in coverage and enforcement procedure. this section will provide background information and discuss the practical utility of these three laws in addressing future problems in public housing regarding vertical patrolling both in new york city and across the nation. a. section 3617 of the fair housing act on april 11, 1968, president lyndon b. johnson signed the civil rights act of 1968 into law.122 the civil rights act of 1968 expanded previous protections against discrimination and created a new prohibition against discrimination in the context of housing.123 title viii of the act, also known as the fair housing act, prohibited discrimination concerning the sale, rental, and financing of housing based on race, color, religion, national origin, or sex. congress amended the law in 1988, extending protections to handicap and family status.124 there are a number of fha provisions that seek to remedy discrimination in varying housing contexts; however, for the purposes of this note, this section will discuss the utility of 42 u.s.c. § 3617. section 3617 of the fha states that: it shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person 118 see supra text accompanying notes 60–64. 119 42 u.s.c. §§ 3601 et seq. (1968). 120 n.y. exec. law §§ 290-301 et seq. (mckinney 1974). 121 n.y.c. admin. code 8-101 et seq. (2015). 122 history of fair housing, united states department of housing and urban development, http://portal.hud.gov/hudportal/hud?src=/program_offices/fair_housing_equal_opp/aboutfheo/history (last visited apr. 17, 2016). 123 id. 124 id. 182 dismantling discrimination in the stairways and halls of nycha vol. 6:2 in the exercise or enjoyment of, any right granted or protected by § 3603, 3604, 3605, or 3606 [of the fha].125 under the terms of § 3617, two distinct groups are protected.126 the provision protects members of a protected class from coercion, intimidation, threats, or interference in the exercise or enjoyment of their fair housing act rights.127 additionally, § 3617 protects those who aid or encourage protected class members in the exercise or enjoyment of fair housing rights.128 section 3617 of the fha has been the topic of much debate in scholarship and among courts seeking to discern whether a cause of action under § 3617 can exist independent of a claim under § 3604, § 3605, or § 3606.129 the language of § 3617 may suggest that for a § 3617 claim to be valid, a plaintiff must possess a separate and valid claim under §§ 3603-06 of the statute. for example, an individual who is threatened, intimidated, or harassed in relation to the occupation of his home would presumably only have a cause of action under § 3617 if it is also found that he was denied access to his home because of his race in violation of § 3604(a).130 in stackhouse v. desitter,131 a district court held that an individual may bring a § 3617 claim absent a violation of § 3603, 3604, 3605, or 3606.132 in stackhouse, the plaintiff, a black resident who had moved in to a predominately white neighborhood, alleged that his white neighbor had interfered and intimidated him with respect to his housing rights in violation of § 3617. the plaintiff claimed that after he exercised his right to rent an apartment free of racial discrimination, his neighbor attempted to frighten him by firebombing his vehicle and conducting other acts of violence and property damage against the plaintiff and his family.133 the court permitted a § 3617 claim independent of other fha provisions, explaining that reading a § 3617 claim as dependent on a violation of enumerated sections would render § 3617 superfluous.134 furthermore, the court reasoned that the statute itself indicated that a violation of § 3617 could be brought absent a violation of §§ 3603-3606.135 125 42 u.s.c. § 3617 (2011). 126 frazier v. rominger, 27 f.3d 828, 833 (2d cir. 1994). 127 id. see also stackhouse v. desitter, 620 f. supp. 208, 209-10 (n.d. ill. 1985) (holding claim alleging firebombing black family’s car in an effort to drive them away from an all-white neighborhood fell squarely within the scope of § 3617). for example, individuals who are denied access to a home because of their race would have a remedy under § 3604(a). 128 id. see also smith v. stechel, 510 f.2d 1162, 1164 (9th cir. 1975) (providing employees of apartment complex brought suit charging that employer’s decision to terminate employment on grounds they rented apartments to minorities violated the fha). 129 compare city of hayward, 36 f.3d at 836 (9th cir. 1994), with halprin v. prairie single family homes of dearborn park ass’n, 388 f.3d 327, 330 (7th cir. 2004), frazier v. rominger, 27 f.3d 828, 834 (2d cir. 1994), and sofarelli v. pinellas county, 931 f.2d 718, 722 (11th cir. 1991). 130 see evans v. tubbe, 657 f.2d 661 (5th cir. 1981) (the plaintiff, who was black, purchased land from the defendant. following the purchase, plaintiff alleged that the defendant erected a gate across a road, which served as the only access point to plaintiff’s land, thereby preventing plaintiff from reaching and using his property. additionally, plaintiff alleged that defendant gave a key to the gate to all the white people who owned property along the road, but refused to give plaintiff a key. the plaintiff also alleged that the defendant had threatened, intimidated, and harassed the plaintiff, preventing plaintiff from enjoying her property in violation of § 3617. the court held that plaintiff stated an arguably valid claim under § 3617 because a § 3604 claim was also brought challenging the plaintiff’s access to her land.). 131 620 f. supp. at 210. 132id. 133 id. 134 id. 135 id. (finding that the two circumstances outlined by the § 100.400 (specifically that it should be unlawful to coerce, intimidate, threaten, or interfere with any person: 1) on account of the person’s having exercised or enjoyed such a right; and 2) on account of his having aided or encouraged any other person in the exercise or enjoyment of such a right) would generally occur after the enumerated rights have been exercised, and that in these cases, the enumerated rights 2016 columbia journal of race and law 183 the standard set in stackhouse has been cited with approval by several district courts within the second circuit.136 moreover, the second circuit has recognized that a claim under § 3617 could involve circumstances beyond those contemplated or brought under §§ 3603-3606.137 the second circuit’s recognition of § 3617 claims would permit nycha tenants to bring claims under § 3617 against nycha and the city of new york without alleging a violation of § 3604(b). additionally, this interpretation comports with hud’s implementation of the fair housing amendments act in 1988.138 section 3617’s implementing regulation § 100.400 states that: it shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of that person having exercised or enjoyed, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this part.139 the regulation defines five types of conduct that are impermissible under § 3617.140 though the list is not exhaustive, the regulation states that “threatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the race, color, religion, sex, handicap, familial status or national origin of such persons, or of visitors or associates of such person,” is prohibited under § 3617.141 b. making a § 3617 claim using § 3617 could be an effective means of combatting aggressive tactics used by the nypd during vertical patrolling, as the current manner in which these patrols are conducted arguably interferes with residents’ ability to exercise and enjoy their fair housing rights. in order for a plaintiff to prevail on a § 3617 claim involving police misconduct, a plaintiff must show that: 1) she is a member of a protected class under the fha; 2) she was engaged in the exercise or enjoyment of her fair housing rights as a nycha tenant; 3) plaintiff’s race and national origin motivated the defendant’s decision to implement vertical patrols and aggressive police would not be violated themselves. in explaining this finding, the court alluded to a situation in which an apartment building owner fires, or otherwise retaliates against, a building manager who has rented a unit to a black person (or other minority) against the owner’s wishes. even though, in this example, §§ 3603-3606 rights have not been violated, the court stated that several courts have had no difficulty finding a § 3617 violation.). 136 ohana v. 180 prospect place realty corp., 996 f. supp. 238, 242 (e.d.n.y. 1998). see, e.g., puglisi v. underhill park taxpayer ass’n, 947 f. supp. 673, 696 (s.d.n.y. 1996); new york ex rel abrams v. merlino, 694 f. supp. 1101, 1103-04 (s.d.n.y. 1988); frazier v. rominger, 27 f.3d 828, 833 (2d cir. 1994). 137 id. 138 see implementation of the fair housing amendments act of 1988, 54 fed. reg. 3232-3317 (proposed jan. 23, 1989), available at http://www.fairhousing.com/index.cfm?method=page.display&pagename=regs_52fr3232. 139 24 c.f.r. § 100.400 (2015). 140 id. § 100.400(c) (“conduct made unlawful under this section includes, but is not limited to, the following: (1) [c]oercing a person, either orally, in writing, or by other means, to deny or limit the benefits provided that person in connection with the sale or rental of a dwelling or in connection with a residential real estate-related transaction because of race, color, religion, sex, handicap, familial status, or national origin; (2) [t]hreatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the race, color, religion, sex, handicap, familial status, or national origin of such persons, or of visitors or associates of such persons; (3) [t]hreatening an employee or agent with dismissal or an adverse employment action, or taking such adverse employment action, for any effort to assist a person seeking access to the sale or rental of a dwelling or seeking access to any residential real estate-related transaction, because of the race, color, religion, sex, handicap, familial status, or national origin of that person or of any person associated with that person; (4) [i]ntimidating or threatening any person because that person is engaging in activities designed to make other persons aware of, or encouraging such other persons to exercise, rights granted or protected by this part; or (5) [r]etaliating against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the fair housing act.”). 141 id. § 100.400(c)(2). 184 dismantling discrimination in the stairways and halls of nycha vol. 6:2 tactics in nycha buildings; and 4) when implementing this policy, the defendants coerced, threatened, intimidated, or interfered with the plaintiff’s exercise or enjoyment of fair housing rights.142 1. proving that one is a protected class member engaged in the exercise or enjoyment of his or her fair housing rights black or latino tenants challenging the nypd’s vertical patrol and aggressive policing practices in nycha buildings would have no difficulty in proving that they are members of a protected class. furthermore, tenants in nycha buildings subject to discriminatory policing and vertical patrols may have several claims satisfying the second prong of the test. a plaintiff may claim that the right to entertain guests143 in her apartment constitutes the “exercise or enjoyment” of one of her rights under the fair housing act. although many nycha residents have complained about the nypd’s interference with their right to entertain guests, plaintiffs may also claim that the nypd interferes with their right to quiet enjoyment and use of their apartment.144 2. demonstrating that the nypd has interfered with the rights of black and latino nycha tenants proving the fourth prong—that the nypd’s policies have interfered with the exercise of one’s right to entertain guests or to quiet enjoyment—would not be a difficult threshold to satisfy. the sixth circuit held in michigan protection and advocacy service, inc. v. babin that to establish interference under § 3617, a plaintiff was not required to show a “potent force or duress,” but that interference could be triggered by “less obvious, but equally, illegal, practices,” such as sending threatening notes or exclusionary zoning.145 improperly stopping or arresting residents’ guests would establish an “interference” with the right to entertain guests. in davis, the plaintiffs alleged that the “pattern and practice of police activity in nycha buildings is so aggressive and well known that some people are afraid to visit nycha residents.”146 kelton davis, one of the named plaintiffs in the case, alleged that on repeated occasions police unjustifiably stopped, seized, questioned, searched, or arrested his friends and visitors for trespass, even though they were lawfully present. as a direct result, mr. davis, who is confined to a wheelchair, currently receives few visits from friends and is largely unable to socialize.147 in addition, tenants of nycha buildings could allege they are unable to use and enjoy their homes because patrols are conducted in such a consistently unlawful and discriminatory manner, that they are prevented from coming and going as they wish.148 improper arrests, constant harassment, excessive force, and in some cases deaths resulting from over-policing during nypd vertical patrols would likely satisfy the fourth 142 lachira v. sutton, no. 3:05cv1585pcd, 2007 wl 1346913, at *18 (d. conn. may 7, 2007). 143 federal law requires reasonable accommodation for guests in public housing. hud’s implementing regulation requires that public housing leases “shall” provide for “reasonable accommodation” for tenants’ guests. 24 cfr § 966.4(d)(1)(2016). additionally, “the second circuit has held that this right is constitutional, not merely statutory: the constitution protects public housing residents’ “freedom to have whomever they want[] visit their homes [. . .]” davis v. city of new york, 902 f. supp. 2d 405, 435 (s.d.n.y. 2012). 144 there is an implied covenant of “quiet enjoyment” in every lease. see mack v. patchin 42 n.y. 167, 171 (n.y. 1870) (holding as a general rule in new york state that a covenant for quiet enjoyment is implied in every mutual contract for leasing and devising of land). 145 michigan prot. & advocacy serv., inc. v. babin, 18 f.3d 337, 347 (6th cir. 1994) (citing sofarelli v. pinellas cnty., 931 f.2d 718 (11th cir. 1991)); united states v. city of birmingham, 727 f.2d 560 (6th cir. 1984)). 146 davis complaint, supra note 37, at 4. 147 id. at 13–14. 148 id. at 56. 2016 columbia journal of race and law 185 prong under § 3617 for a claim that the nypd has interfered with the right to quiet enjoyment and use of one’s home. 3. proving intent to discriminate a plaintiff may bring a claim under a disparate treatment theory of liability (also referred to as intentional discrimination) to satisfy the third factor.149 as direct evidence of discriminatory intent is often not available, a plaintiff may provide circumstantial evidence to support a finding of intentional discrimination. in arlington heights v. metropolitan housing development corporation (“arlington heights”), the united states supreme court set forth a number of factors to consider in the absence of direct evidence of intent.150 under what has become known as the “arlington heights factors,” intentional discrimination can be inferred through the following: 1) the impact of the challenged action, whether it bears more heavily on one race than another; 2) the historical background of the decision, particularly if it reveals a series of official actions taken for invidious purposes; 3) the specific sequence of events leading up to the decision; 4) any procedural and substantive departures from the norm; and 5) the legislative or administrative history of the decision, especially where there are contemporary statements made by members of the decision-making body, minutes of its meetings, or reports.151 the court in arlington heights indicated that not every factor must be proven to support a case of intentional discrimination. in fact, courts have routinely upheld intentional discrimination claims where plaintiffs have offered evidence satisfying only a few factors.152 if a court finds that a plaintiff has provided sufficient proof showing that a racially discriminatory purpose, in part, motivated the policy behind vertical patrols and policing more generally, the policy is not automatically invalidated.153 the burden would then shift to the city of new york or nycha to establish that the same decision would have resulted even if race had not been considered.154 as mentioned above, direct proof of discriminatory intent is rarely available. thus evidence showing that the nypd’s practice of vertical patrolling and aggressive police tactics bear more heavily on blacks and latinos may provide an important starting point.155 evidence supporting such a claim typically involves statistical data showing a disproportionate impact.156 for example, in jim sowell constitutional co., inc. v. city of 149 though the united states supreme court has not yet determined whether disparate impact theory applies under the fha, all circuit courts that have addressed this issue have determined that plaintiffs may bring claims under a disparate treatment (intentional discrimination) and disparate impact theory under the fha. see, e.g., huntington branch naacp v. town of huntington, 844 f.2d 926, 937-38 (2d cir. 1998), aff’d, 488 u.s. 15 (1988) (per curiam); metro. hous. dev. corp. v. vill. of arlington heights, 558 f.2d 1283, 1290-91 (7th cir. 1977); hallmark developers, inc. v. fulton cnty., 466 f.3d 1276, 1286 (11th cir. 2006). however, under an independent § 3617 claim, a disparate impact claim would likely be unsuccessful. it is unlikely that a party can innocently and unintentionally “coerce, intimidate, threaten, or interfere with” a person’s rights protected by §§ 3603-3606. thus, for the purposes of proving intent under § 3617, this section will rely on a claim made under a disparate treatment theory. the seventh circuit and eleventh circuit have explicitly held that “a showing of intentional discrimination is an essential element of a § 3617.” east-miller v. lake cty. highway dep’t, 421 f.3d 558, 563 (7th cir. 2005). see, e.g., sofarelli v. pinellas county, 931 f.2d 718, 721-23 (11th cir. 1991); simoes v. wintermere pointe homeowners assoc., inc., no. 6:08-cv-01384-lsc, 2009 wl 2216781, at *6 (m.d. fla. july 22, 2009), aff’d, 375 f. app’x 927 (11th cir. 2010). 150 vill. of arlington heights v. metro. hous. dev. corp., 429 u.s. 252, 266–68 (1977). 151 id. 152 see hidden village, llc v. city of lakewood, ohio, 867 f. supp. 2d 920 (n.d. ohio 2012), aff’d in part, rev’d in part, 734 f.3d 519 (6th cir. 2013) (upholding intentional discrimination claim after plaintiff was able to provide circumstantial evidence showing disparate impact, a deviation from procedural and substantive practices, and racially charged conduct on the part of city officials). 153 see vill. of arlington heights., 429 u.s at 271 n.21. 154 id. 155 id. at 266. 156 mhany mgmt. inc. v. inc. vill. of garden city, 985 f. supp. 2d 390, 414 (e.d.n.y. 2013), aff’d, no. 141634-cv l, 2016 wl 1128424 (2d cir. 2016). 186 dismantling discrimination in the stairways and halls of nycha vol. 6:2 coppell, the court found that expert testimony demonstrating that african american families were much more likely to reside in apartment complexes than caucasian families was sufficient to demonstrate that rezoning tracts of land from multifamily to single family use and decreasing the number of apartment available to new residents, statistically had a greater adverse impact on african american families than on caucasian families.157 black and latino families are more likely to live in nycha buildings than caucasian families. as demonstrated in jim sowell, this evidence is likely to illustrate that vertical patrolling and over-policing in nycha buildings has a statistically greater adverse impact on black and latino families than on caucasian families. furthermore, in davis, the plaintiffs’ expert set forth statistical data establishing that the nypd’s practice more adversely impacted blacks and latinos.158 the data revealed that citywide, blacks and latinos represented over eighty percent of all persons stopped, and over ninety percent of all persons stopped in nycha buildings.159 the expert also found that race and ethnicity played a significant role in the rate of trespass stops and arrests in public housing, even after controlling for other policy-relevant factors, crime conditions, patrol strength, and socio-economic conditions.160 though residents of nycha buildings are primarily people of color, nycha residents are not exclusively minorities. 161 the legacy of racial steering and other discriminatory practices in nycha buildings162 have left many buildings racially segregated, and as a result, white residents tend to be clustered in some of the more desirable buildings.163 in the early 1990s, the united states and a class of plaintiffs brought parallel actions alleging that nycha discriminated in violation of, inter alia, 42 u.s.c. §§ 1981, 1982, and 1983 and the fair housing act, by assigning applicants for public housing to particular housing projects on the basis of race.164 in urging the district court to accept the ultimate settlement, nycha admitted to engaging in a number of policies and practices including racial steering that had effectively discriminated against black and latino applicants.165 years later, in a suit against nycha, latino and black individuals residing in eligible public housing challenged nycha’s implementation of a preference for working-families, which the court ultimately found to significantly perpetuate segregation at various nycha developments.166 nycha was also found to be responsible for promoting racial quotas in the williamsburg area of brooklyn, new york.167 comparative data may show a difference between policing in majority-white nycha buildings and buildings predominately comprised of black and latino residents, which would further strengthen a claim that nypd’s policy more adversely impacts people of color.168 though no current research has been conducted on this question, demographics may indicate that the nypd’s policy is less likely to impact white nycha residents. not only do whites make up a small 157 jim sowell const. co., inc. v. city of coppell, 61 f. supp. 2d 542, 547 (n.d. tex. 1999). 158 fagan declaration, supra note 11, at 2. 159 id. 160 id. 161 in 2008, ninety-one percent of public housing residents were african american or latino, and only 4.3 percent were white. jeffrey fagan, garth davies & adam carlis, race and selective enforcement in public housing, 9 j. empirical legal stud. 697, 702 (2012) (citing new york city housing authority, comprehensive annual financial report for the year ended december 31, 2008 (2009)). 162 davis v. new york city hous. auth., 278 f.3d 64 (2d cir. 2000). 163 fagan, davies & carlis, supra note 161, at 702. 164 see generally davis v. new york city hous. auth., 1992 wl 420923 (s.d.n.y. 1992). 165 id. 166 davis v. new york city hous. auth., 166 f.3d 432 (2d cir. 1999). 167 williamsburg fair hous. comm. v. new york city hous. auth., 439 f. supp. 1225 (s.d.n.y. 1980) (finding that nycha used a rigid quota by renting 75 percent of units to whites, 20 percent to hispanics, and five percent to blacks, and finding that when defendants deviated from the quota, or otherwise cooperated more fully with one group, they did so in favor of whites). 168 see id. 2016 columbia journal of race and law 187 percentage of nycha residents, the white nycha population contains a disproportionately high number of individuals over the age of 62, a population that is generally not targeted during a vertical patrol and less likely to be in common areas of the building where many of the arrests and interactions take place.169 furthermore, because the use of vertical patrols is not implemented uniformly, but largely based on the discretion of the nypd,170 it may be that many white nycha residents are not impacted by the policy.171 additionally, the expert in davis found that racial disparities in trespass and total police enforcement increased with the magnitude of the differences in racial composition between nycha properties and surrounding neighborhoods, after controlling for local crime conditions, policing activity, population size, and socioeconomic and demographic composition of nycha sites and surrounding areas.172 essentially, when predominately minority nycha residences are located in white or gentrifying neighborhoods, the racial disparities in trespass arrest rates increase even further.173 despite being located in the same vicinity as white residents, this data demonstrates that blacks and latinos in nycha buildings are still more adversely impacted by the nypd’s over-policing policies than their white neighbors. the historical background of the nypd’s decision to implement vertical patrolling and over-policing in nycha buildings may serve as another evidentiary source for an arlington heights analysis. this type of evidence would be particularly useful if it can demonstrate or reveal that a series of official actions were taken for invidious purposes.174 for example, any historical background from the period when osh and vertical patrols were first implemented in nycha buildings that indicate that patrols were racially biased may be strong evidence under this factor. additionally, a plaintiff may also point to the legacy of racial segregation and discrimination in nycha buildings as evidentiary support for proving intentional discrimination. in davis v. nycha, class plaintiffs alleged that nycha had engaged in discrimination in violation of a number of statutes, including the fair housing act, by assigning applicants for public housing to particular housing projects on the basis of race.175 nycha ultimately acknowledged its racially discriminatory practices and conceded that it had engaged in racial steering, among other things.176 similarly, in williamsburg fair housing committee v. new york city housing authority, members of the black, puerto rican, and other latino communities living within the williamsburg area of brooklyn, new york brought suit.177 the plaintiffs alleged that nycha had used racial quotas to allocate publicly assisted housing units at various housing projects within the williamsburg area.178 for example, one privately owned housing development, bedford gardens, was rented out under a quota that called for each building to be comprised of seventy-five percent whites, twenty percent latinos, and 169 id. 170 id. in the nypd’s 2005 patrol guide, under § 212-59, the guide grants the commanding officer discretion to determine and maintain lists of potential vertical patrol locations, and to update this list as necessary. no further specifications were listed with regards to the criteria for determining potential vertical patrol locations. see new york city police department patrol guide § 212-59, nypd (2005). the current patrol guide omits this section, but does not specify an individual responsible for determining locations nor any criteria for determining what buildings vertical patrols are conducted in. see new york city police department patrol guide § 212-59, 212-60, nypd (2013). 171 fagan, davies & carlis, supra note 161, at 702. 172 fagan declaration, supra note 11, at 3. 173 davis complaint, supra note 37, at 3. 174 vill. of arlington heights v. metro. hous. dev. corp., 429 u.s. 252, 267 (1977). 175 davis v. new york city hous. auth., 278 f.3d 64 (2nd cir. 2002). 176 id. at 66. 177 439 f. supp. 1225 (s.d.n.y. 1980). 178 id. 188 dismantling discrimination in the stairways and halls of nycha vol. 6:2 five percent blacks.179 nycha leased apartments from bedford gardens under the § 23 leasing program,180 and had a prepared list of nycha apartments in the development, along with the designated ethnicity of each apartment unit.181 the plaintiffs presented evidence that nycha rented according to these designations of ethnicity, and ultimately nycha agreed to a consent decree to end the quotas and adjust the racial and ethnic distribution of its buildings.182 lastly, in floyd, the court found that the nypd had engaged in a policy and practice of stop-and-frisks that was racially discriminatory against minorities living in new york city.183 all three of these cases illustrate various policies implemented to discriminate against minorities both in access to nycha buildings and across new york city. furthermore, these cases illustrate how race has historically played a role in the decision making of nycha, the nypd, and the city of new york. a plaintiff may provide evidence of the third arlington heights factor using specific antecedent events leading up to implementation of the vertical policing policy in nycha. the supreme court has explicitly distinguished between the “historical background” of a decision and the “specific antecedent events” leading up to it, indicating that the latter is a separate factor to examine under the arlington heights analysis.184 in addition, departures from the normal procedural and substantive sequence may also indicate that improper purposes are playing a role in the decision to implement aggressive police tactics in nycha buildings and would satisfy the fourth arlington heights factor.185 atypical meetings conducted to discuss implementation of vertical patrolling in nycha buildings, or a rush to implement the policy in violation of procedures, would be circumstantial evidence supporting a claim of intentional discrimination under this factor.186 for example, in hidden village, llc v. city of lakewood, ohio,187 the plaintiff, an owner of an apartment complex occupied by an independent living program for at-risk youth (and had eighty percent african american clientele), presented evidence that the apartment’s unannounced visits from both police and fire inspectors deviated from the city’s typical procedure of notifying individuals in advance. the district court found this to be compelling evidence of a substantive and procedural deviation that could support the claim that the city had intentionally discriminated against the apartment building residents.188 differences in rates of stops and arrests between minority-occupied nycha buildings located in white neighborhoods, and the white neighborhoods that surround them, may indicate that the nypd is policing communities differently based on race. like the case made in hidden village, a plaintiff may point to this procedural departure as an indication of intentional discrimination. additionally, evidence revealing that predominately white nycha buildings are policed differently may also be admissible under this arlington heights factor. lastly, “the legislative or administrative history may also be highly relevant in proving intentional discrimination, especially where there are contemporary statements made by members of the decision making body, minutes of its meetings, or reports.”189 finding statements, notes, or minutes that demonstrate intent to discriminate could be difficult to obtain. furthermore, obtaining testimony from individual officials may be even more difficult. though legislative members might be individually questioned concerning the intent of 179 id. at 1230. 180 under § 23, “leased housing” refers to dwelling units whose tenants receive the benefit of rental subsidies pursuant to § 103(a) of the housing and urban development act of 1974, 88 stat. 672, as amended, 12 u.s.c. § 1715z-1 (2000). 181 williamsburg, 439 f. supp. at 1232. 182 williamsburg fair hous. comm. v. new york city hous. auth., 450 f. supp. 602, 605 (s.d.n.y. 1978). 183 floyd v. city of new york, 959 f. supp. 2d 668 (s.d.n.y. 2013). see supra text accompanying notes 50–58. 184 mhany mgmt inc. v. inc. vill. of garden city, 985 f. supp. 2d 390, 415 (e.d.n.y. 2013) (citing vill. of arlington heights v. metro. hous. dev. corp., 429 u.s. 252, 318 (1977)). 185 id. 186 id. at 415 (citing reitman v. mulkey, 387 u.s. 369, 373–76 (1967); grosjean v. american press co., 297 u.s. 233, 250 (1936)). 187 867 f. supp. 2d 920, 944 (n.d. ohio 2012). 188 id. 189 vill. of arlington heights, 429 u.s. at 268. 2016 columbia journal of race and law 189 vertical patrols, the supreme court noted in arlington heights, “even then such testimony frequently will be barred by privilege.”190 notwithstanding evidentiary restrictions, a plaintiff may also be limited by legislative immunity,191 the police “code of silence,” and possible clandestine actions by members of the decision making process. recently, former mayor of new york city, michael bloomberg, made a series of comments affirming the dispatch of more police in minority neighborhoods, contending that “[ninety-five] percent of murders” in new york can be attributed to minorities.192 without much more, such statements would likely not be given much weight by a court under an arlington heights analysis. racially charged individual comments or general statements made by individuals involved in the decision making process are generally given little weight when ascertaining intent from the entire legislative body.193 however, courts have found that thinly veiled statements (consistent with many of the comments made by bloomberg) of prejudice made by several city officials can be compelling evidence of discriminatory intent, when viewed as a whole.194 actions or omissions on behalf of decision makers may also be indicative of discriminatory intent. in inclusive communities project v. town of flower mound, texas, a district court found that evidence a town manager who agreed to submit a proposal for affordable housing to the town council failed to do so could be sufficient for a reasonable jury to find that race was a significant factor in the town’s decision not to respond to the plaintiff’s request for affordable housing.195 in proving racial intent, a plaintiff may present evidence of the nypd’s failure to act on the published reports it received from the ny ccrb, which documents the influx of complaints regarding improper stops and arrests. although minor changes were made to the patrol guide following notice, vertical patrolling and aggressive tactics persisted and the ccrb later reported an increase in the substantiation rate of complaints. the mere fact that the problem persisted following notice may be evidence upon which a reasonable fact finder may find that race was an important factor motivating how vertical patrolling and other policing tactics in nycha buildings were conducted. additionally, any complaints that contained specific racial statements made by officers during vertical patrols or policing may also serve as circumstantial evidence of discriminatory intent. during the discovery phase of litigation, a plaintiff may be able to find additional 190 id. 191 see buonauro v. city of berwyn, no. 08 c 6687, 2011 wl 116870, at *10 (n.d. ill. jan. 10, 2011) (finding that plaintiffs were not entitled to inquire into deliberations, thoughts, or motives of the mayor or city council members, and that testimonial privilege protected these persons from responding to deposition questions). 192 see karl herchenroeder, michael bloomberg blocks footage of aspen institute appearance, the aspen times (feb. 13, 2015), http://www.aspentimes.com/news/15037917-113/michael-bloomberg-blocks-footage-of-aspen-instituteappearance. though no footage was officially released, a recording from the event has been posted on several sites. numerous media outlets scrutinized bloomberg for several of his comments. see id. in one part of the discussion, bloomberg suggested that one way to deal with young persons of color engaged in criminal activity was for the nypd to “throw them up against the wall and frisk them.” id. bloomberg’s comments seem to be relevant considering that he implemented the stop-and-frisk policy; however, as mentioned in the paper, comments from one individual of authority will generally not satisfy the last arlington heights factor. 193 see florida v. united states, 885 f. supp. 2d 299, 354 (d.d.c. 2012) (“the purpose of a single legislator is normally too slim a reed upon which to rest a determination regarding the legislator as a whole.”) (citing castanedagonzalez v. ins, 564 f. 2d 417, 424 (d.c.c. 1977)). 194 see, e.g., reg’l econ. cmty. action program v. city of middletown, 294 f.3d 35, 49–51 (2d cir. 2002). 195 inclusive cmtys. project v. town of flower mound, no. 8-cv-433, 2010 wl 2635292 (e.d. tex. june 4, 2010) (plaintiff challenged the town of flower mound’s refusal to participate in their low-incoming housing programs and refusal to identify property where the town would support the location of low income housing tax credit eligible multi-family housing units. the plaintiff contended that the town undertook such conduct as part of a strategy to prevent the development of low-income housing in flower mound for the purpose of excluding racial minorities from residing there.). 190 dismantling discrimination in the stairways and halls of nycha vol. 6:2 evidence of intent by examining nypd and nycha board materials, minutes of meetings, and other public records.196 the foregoing discussion identifies the arlington heights factors and potential subjects of inquiry that may be useful for proving that racial discriminatory intent existed with respect to the implementation of vertical patrols and over-policing in nycha buildings. within this framework, challenging vertical patrolling and the nypd’s stop-and-frisk tactics in nycha under § 3617 has much utility and may be used as an alternative theory to § 3604(b) claims. section 3617 utilizes much broader language than § 3604(b) and may prove to be more effective in circumstances where a court refuses to apply § 3604(b) to a “post-acquisition claim.” additionally, a plaintiff may name the nypd, nycha, or the city of new york as defendants under the fha. c. new york state human rights law and new york city human rights law 1. new york state human rights law a plaintiff may also bring a claim under the new york state human rights law (“nyshrl”), the primary anti-discrimination statute under new york state law.197 new york was the first state in the nation to enact a human rights law that prohibits discrimination in employment, housing, credit, places of public accommodations, or non-sectarian educational institutions based on age, race, national origin, sex, sexual orientation, marital status, disability, military status, and other specified classes.198 under the nyshrl, a black or latino tenant may bring a claim if he or she can prove housing discrimination on the basis of race or national origin “in the furnishing of facilities or services in connection therewith.”199 additionally, the nyshrl has a specific provision which makes it illegal to discriminate on the basis of race in the terms, conditions, or privileges of publicly-assisted housing accommodations, or in the furnishing of facilities or services in connection therewith.200 nycha public housing units fall within the nyshrl’s definition of “publicly-assisted housing accommodation.”201 under § 296 of the nyshrl, “the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed or any agent or employee thereof” is liable for violating the statute.202 consequently, a tenant would only have a legally cognizable claim against nycha as the owner of the tenant’s apartment. since the city of new york does not have apparent authority to lease or manage nycha units, it would not be a proper defendant under this nyshrl provision. a tenant may allege that through nycha’s agreement with the nypd, nycha has discriminated against her in the furnishing of services, namely through over-policing and aggressive police tactics. 196 vill. of arlington heights. v. metro. hous. dev. corp., 429 u.s. 252, 268 (1977). (court permitted to question board members during discovery phase and trial about board materials and other available information at the time of its challenged decision). 197 n.y. unconsol. law §290 et seq. (mckinney 2000). 198 mission statement, new york state division of human rights, http://www.dhr.ny.gov/missionstatement. 199 n.y. unconsol. law §290 et seq. (mckinney 2000). 200 id. 201 n.y. unconsol. law §292(11)(a) (mckinney 2000) (“the term ‘publicly-assisted housing accommodations’ shall include all housing accommodations within the state of new york in (a) public housing.”). 202 n.y. unconsol. law §292(5)(a) (mckinney 2000). 2016 columbia journal of race and law 191 2. new york city human rights law a plaintiff may also bring a claim under the new york city human rights law (“nychrl”). new york city’s human rights law is one of the most comprehensive civil rights laws in the nation.203 the nychrl204 prohibits discrimination in employment, housing and public accommodations based on race, color, creed, age, national origin, alienage or citizenship status, gender sexual orientation, disability, marital status, and partnership status.205 additionally, in the context of housing, the city human rights law affords additional protections based on lawful occupation, family status, and any lawful source of income.206 under the nychrl, violations concerning these provisions may be filed with the human rights commission; however, the nychrl also grants individuals a private right of action.207 also, successful complainants are entitled to an award of attorney fees.208 challenging the nypd’s practice of vertical patrols and aggressive policing in nycha buildings under the nychrl has great utility. in 2005, the new york city council enacted the local civil rights restoration act (the “restoration act”) as a means of expanding the scope of the nychrl, which the council believed “had been construed too narrowly to ensure protection of the civil rights of all persons covered by the law.”209 “the restoration act provides that similarly worded federal and state civil laws are a floor below which the nychrl cannot fall, rather than a ceiling above which the local law cannot rise.”210 the restoration act asserts that the provisions of nychrl “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or new york state civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.”211 3. aiding and abetting liability like the nyshrl, the nychrl limits liability to an owner of a tenant’s apartment. however, both statutes contain provisions specifying that, “it shall be an unlawful discriminatory practice for any person to aid [or] abet […] the doing of any acts forbidden under this chapter, or to attempt to do so.”212 persons may sue the city of new york under the nyshrl and nychrl for aiding and abetting discrimination against nycha tenants in the furnishing of police services.213 since both statutes contain similar language regarding liability, courts apply the same standard when analyzing claims under these two provisions.214 a tenant must first prove a violation of the nyshrl or nychrl against nycha, before he or she can make an aiding or abetting claim against the city of new york.215 to prove a claim against nycha, a 203 patricia l. gatling, discrimination is illegal in new york city, new york city commission on human rights, http://www.lawhelpny.org/files/b23b29bf-0ded-f7b9-2149-1db14e1a7de5/attachments/305eb86a-1fca4619-8787-54bcf44221ca/bluebook_2013_finaleng.pdf. 204 n.y.c. admin. code § 8-101 (2008). 205 id. 206 id. 207 n.y.c. local law no. 39 (june 18, 1991) (codified in n.y.c. admin. code § 8-126 (2008)). 208 id. 209 n.y.c. local law no. 85 (2005). 210 short v. manhattan apartments, inc., 916 f. supp. 2d 375, 395 (s.d.n.y. 2012). 211 n.y.c. 396 admin. code § 8-130. 212 id. (citing code n.y. exec. l. § 296; n.y.c. admin. code § 8-107(6)). 213 see fair hous. justice ctr., inc. v. broadway crescent realty, no. 10 civ. 34, 2011 wl 856095, at *8 (s.d.n.y. mar. 9, 2011). 214 see dunson v. tri-maint. & contractors, 171 f. supp. 2d 103, 113-14 (e.d.n.y.2001). see also mohamed v. marriott int’l, 905 f. supp. 141, 157 (s.d.n.y. 1995). 215 see strauss v. new york state dep’t of educ., 26 a.d.3d 67, 73, (3d dep’t 2005) (denying plaintiff’s aiding or abetting claim because plaintiff had not established a human rights law violation by another party). see also dewitt v. lieberman, 48 f. supp. 2d 280, 294 (s.d.n.y. 1999). 192 dismantling discrimination in the stairways and halls of nycha vol. 6:2 tenant is required to satisfy the same elements necessary to bring a claim under the fha.216 however, tenants may bring either a nyshrl or nychrl claim under a disparate treatment or disparate impact theory of liability.217 the nyshrl and nychrl’s embrace of the disparate impact theory is especially crucial given the united states supreme court’s grant of certiorari.218 after establishing a violation under nycha, a plaintiff must demonstrate that the other defendants in question “actually participated in the conduct giving rise to the discrimination claim.”219 proving that the nypd participated in vertical patrolling and over-policed nycha buildings would not be difficult because the nypd has conducted the actual conduct giving rise to the claim. v. conclusion the fair housing act, new york state human rights law, and new york city human rights law provide useful and powerful legal tools in dismantling housing discrimination at a national, statewide, and local level, but the battle is not over. the legacy of housing segregation and discrimination has permitted the evolution of racialized policing. also, where one lives can often determine how they are policed. the discriminatory and aggressive tactics used in public housing are not unique to new york city. cities and towns across the nation have implemented similar programs in public housing and communities of color. as we continue the fight against housing discrimination, these remedies may serve as a useful way to not only challenge overt and covert forms of housing discrimination, but the racialized policing that often comes along with the racially segregated landscape that housing discrimination has produced. 216 see johnson v. levy, 812 f. supp. 2d 167, 179 (e.d.n.y. 2011) (holding elements necessary to prove discrimination under fha are applicable to claims for housing discrimination under the nyshrl). 217 levin v. yeshiva univ., 96 n.y.2d 484, 489 (n.y. 2001). see also n.y.c. admin. code § 8-107(17)(a)(2) (1996). under a disparate impact analysis, a prima facie case would be established by showing that the vertical patrols and aggressive policing in nycha buildings actually or predictably results in racial discrimination. a tenant would not need to show that the decision to use vertical patrols and other policing tactics was made with discriminatory intent. see naacp v. town of huntington, 844 f.2d 926, 939 (2d cir. 1998). (“once a [tenant] has made a prima facie showing of discriminatory effect, a defendant [nycha, the nypd, or the city of new york], must present bona fide and legitimate justifications for its action with no less discriminatory alternatives available.”). 218 texas dep’t of hous. & cmty. affairs v. inclusive cmtys. project, inc., 135 s. ct. 46 (2014). disparate impact is arguably one of the fha’s most effective provisions for addressing contemporary forms of discrimination. the disparate impact approach has helped plaintiffs identify and confront discrimination that results from hidden, unconscious biases and practices that perpetuate the effects of past intentional discrimination. see from the fair housing act to ferguson: where you live impacts how you’re policed, aclu, https://www.aclu.org/blog/speakeasy/fair-housing-act-ferguson-whereyou-live-impacts-how-youre-policed (last visited apr. 17, 2016). 219 see elmowitz v. executive towers at libo, llc, 571 f. supp. 2d 370, 377 (e.d.n.y. 2008) (citation omitted). see also tomka v. seiler corp. 66 f.3d 1295, 1317 (2d cir. 1995) (holding that defendant who actually participates in the conduct giving rise to discrimination claim may be held personally liable under the hrl). microsoft word gelsey's note final.docx talking black: destigmatizing black english and funding bi-dialectal education programs gelsey g. beaubrun* during colonial and antebellum american history, slaveholding states enacted anti-literacy laws that prohibited teaching enslaved people how to read or write. later iterations of these laws criminalized the education of african americans— enslaved or free—in response to conspiracies and insurrections led by literate enslaved and free african americans. these enactments along with the customs of violence on slave plantations inevitably resulted in a mostly illiterate enslaved population. the legacy of literacy proscription, through segregated schools, continued to impair the quality of education that black children received. because of unresolved opportunity gaps, the low literacy rates of black children and the disparity in academic achievement between black and white children remain pressing issues for school reformers. anti-literacy statutes also prevented enslaved africans from formally learning the rules and grammar of standard american english. consequently, enslaved africans created their own english dialect—african american vernacular english (“aave”). aave is an english language variety whose structure and grammar conflicts with standard english, at times. today, many black children enter school speaking aave. furthermore, linguistic research documents the academic challenges faced by black children who * the author would like to thank professor arlene clahar for introducing her to the reading challenges experienced by black children who speak aave. the author would also like to thank professor maeve glass for exposing her to the scholarship on the legal history of american slavery and for her support while writing this note. the author is grateful to the staff of the columbia journal of race and law and is especially thankful for kayla butler’s thoroughness and guidance during the editing process. the author is appreciative of the many educators throughout her educational experiences who encouraged her writing abilities. lastly, the author dedicates this note to her former students who struggled greatly with reading. their resiliency inspires the author’s commitment to education advocacy. no. 10:2] talking black 197 speak aave. current education law does not explicitly account or provide remedial support for children who speak aave. this note argues that the often overlooked linguistic barriers presented by children who speak aave is the primary driver of low literacy rates among black children. this note recommends allocating federal funding for the implementation of bidialectal programs for aave-speaking children to ensure that black children have access to equal educational opportunities. i. introduction .............................................................. 197 ii. the cause and effects of literacy proscription: from the colonial south to the contemporary era ............................................................................... 202 a. literacy proscription as racial subjugation in the slave-holding south ................................................ 203 b. de facto literacy proscription post-bellum ............ 209 c. traditional explanations for the “achievement gap” minimize the effects of the history of literacy proscription ............................................... 212 iii. legal barriers to literacy, black english, and the current literacy rates of black children .... 216 a. the origins of african american vernacular english .................................................................... 217 b. the relationship between aave & literacy acquisition .............................................................. 219 c. academic challenges that aave speakers face .... 221 iv. bi-dialectal programs as legal remedy and redress for aave-speaking children .................... 227 a. current legal options are inadequate ..................... 229 b. bi-dialectal program for speakers of aave ............. 236 c. concerns about implementation ............................. 237 v. conclusion .................................................................. 241 i. introduction in notes on the state of virginia, in 1781, thomas jefferson “was utterly convinced” that members of the african race were intellectually inferior to whites because of so-called biological or 198 columbia journal of race and law [vol. 10:2 racial characteristics1: “comparing them [blacks] by their faculties of memory, reason, and imagination, it appears to me, that in memory they are equal to the whites; in reason much inferior, as i think one could scarcely be found capable of tracing and comprehending the investigations of euclid; and that in imagination they are dull, tasteless, and anomalous.”2 in 1863, a runaway slave from kentucky named francis frederic challenged jefferson’s earlier articulation that black people were intellectually inferior. frederic questioned the reason why slaveholders prevented enslaved people from learning how to read and thereby “investigate” the teachings of euclid.3 frederic asserted, “[i]t cannot be pretended for one moment, truthfully, that we are not capable of understanding if we were taught. i myself am a living witness against such absurdity; after fifty years of age i have learnt to read and write.”4 it is doubtful that thomas jefferson, a slaveholder, was unaware of the barriers that prevented enslaved black people from learning how to read. mary ella grandberry, a formerly enslaved woman, bore witness to the punishment enslaved people faced if caught reading. she recalled, “[d]e white folks didn’t ‘low us to even look at a book. dey would stol’ an sometimes whup us iffen dey caught us wid our head in a book.”5 both frederic and grandberry used their personal experiences to expose the oppressive laws and customs that prevented enslaved people from learning how to read. learning how to read and write in standard english gave frederic’s narrative legitimacy in mainstream society. whereas grandberry’s narrative did not achieve the same legitimacy. grandberry did not have the ability to write her own words 1 span, infra note 54, at 30. 2 thomas jefferson, notes on the state of virginia 146–47 (frank c. shuffleton ed., penguin books 1999). 3 francis frederic, slave life in virginia and kentucky; or fifty years of slavery in the southern states of america 53 (1863). when a spelling book was found on his person, frederic’s mistress’ sister threatened to whip him with 100 lashes if frederic was found with another book. 4 id. 5 span, infra note 54, at 32–33 (citing george rawick, the american slave: a composite autobiography 160 (1972)). no. 10:2] talking black 199 and she spoke in a dialect of english, which today is referred to as african american vernacular english (“aave”).6 access to learning opportunities distinguishes fredric’s narrative from grandberry’s. denying black people access to literacy ensured that black people remained at the bottom of the american racial caste system.7 maintaining white supremacist ideologies like jefferson’s required preventing enslaved persons of african descent from learning how to read and by extension how to speak standard english.8 other wise, white people would no longer have reasons to claim intellectual superiority over black people.9 today, the “achievement gap” refers to the persistent disparities in the educational outcomes of black and white children.10 the underachievement of black children reflects the laws, policies, and practices that continue to deny black children access to quality educational opportunities since the colonial period in american history.11 6 see infra part iia & b for a detailed discussion on the linguistic origins and features of aave. one feature of aave includes the substitution of [ð] with [d] as can be seen in the quotation by grandberry (i.e. replacing “they” with “dey”). 7 see, e.g., williams, infra note 65, at 460–67. 8 heather andrea williams, self-taught: african american education in slavery and freedom 7 (waldo e. martin jr. & patricia sullivan eds., 2005) (arguing that “[m]maintaining a system of bondage in the age of enlightenment depended on master’s being able to speak for the slave, to deny his or her humanity, and to draw a line between slave consciousness and human will. the presence of literate slaves threatened to give lie to the entire system”). 9 id. 10 the “achievement gap” refers to the disparities between black and white children on reading and mathematics outcomes. according to the 2019 naep report, white students performed 26 points higher than black children in 4th grade reading and 28 points higher in 8th grade reading. dep’t educ., naep report card: 2019 naep reading assessment, https://www.nationsreportcard. gov/ highlights/ reading/2019/ (last visited apr. 02, 2020). 11 beyond assessing black children in relation to the achievement of their white counterpart, many black children are not performing on grade level and are falling behind. thus, some scholars have taken issue with the term “achievement gap” because “such nomenclature tends to obscure the reality 200 columbia journal of race and law [vol. 10:2 this note will argue that the legacy of anti-literacy laws12 is the underlying driver behind the low achievement of black children. state legislatures passed these laws during the antebellum era, which prevented enslaved black people and even free blacks from learning how to read or write in standard english.13 a secondary consequence of anti-literacy laws is that they denied african americans the opportunity to learn the grammar of standard english.14 thus, african americans created their own linguistic tradition whose features and grammar, at times, contradict the grammar of standard english.15 this linguistic tradition continues to pass down to african american children. academic challenges arise because the american school system erroneously expects children to know the foundational grammar of standard american english; instead, schools need to teach black children who speak aave the language system of standard english.16 that these disparities are the predictable manifestations of ‘opportunity gaps’ rooted in our nation’s legacy of slavery, segregation, and racism.” kelley, infra note 57, at 138. 12 in this note, “anti-literacy laws” refers to statutes passed in southern states during the colonial antebellum period that prohibited, penalized, and/or criminalized black people, whether enslaved or free, from learning how to read and write. see infra part i, for further discussion. 13 williams, supra note 8, at 13–16, 27 (describing a series of anti-literacy laws that proscribed teaching enslaved and/or free black people how to reading and/or write in the following states: south carolina, georgia, louisiana, north carolina, virginia, and alabama). 14 see smitherman, infra note 143, at 547 (noting that “there was no concern about the language or education of africans” during the centuries of enslavement in colonial and antebellum america. smitherman further asserts that the relationship between aave and “the education of us slave descendants was not addressed until the black freedom struggle of the midtwentieth century”). 15 see newkirk, infra note 111, at 439 (noting that aave is a “native english dialect primarily spoken by african americans with an indigenous slave history and ancestral ties to sub-saharan africa”). 16 id. at 439 (noting that “the initial three years of the life span are a critical time period during which the foundation of a language is established”). children who speak aave have acquired this language system because they were exposed to it, which suggests more exposure to aave than standard no. 10:2] talking black 201 by analyzing the literacy rates of black children from a historical perspective, we can see that the legacy of anti-literacy laws, which barred black people from learning how to read, write, and speak standard english, is the underlying issue black children confront when learning how to read. this history is often overlooked because of the assumption that african american children do not face linguistic barriers, or because aave is erroneously considered a slang used colloquially by urban youth.17 furthermore, schools implicitly presume that children enter school knowing standard english.18 this presumption does not hold true for many black children.19 this is important because black children may continue to struggle even if structural inequities in our school systems are rectified.20 that is, increased resources or school funding will not completely remedy the achievement gap if linguistic challenges are not also english. however, standard english is the dominant language variety used in classroom instruction and educational materials. students who have been exposed to standard english prior to school entry may experience less difficulty learning standard english. if aave-speaking children are unable to master standard english, they face “well-documented challenges” to academic achievement in reading. see id. at 441; mills & washington, infra note 131, at 568. 17 see baugh, infra note 227, at 668 (arguing that “racism against blacks in america accounts, in part, for some of the lingering linguistic stigma and misconceptions that many uninformed people harbor about aave”). 18 the presumption that children enter school knowing standard english contradicts “long standing evidence that children [including african american children who speak aave] acquire the language system to which they are exposed from a very early age.” see newkirk, infra note 111, at 441. 19 see craig & washington, infra note 130 (estimating that 90% of african american children speak aave upon school entry). 20 increasing funding to underperforming schools does not, by itself, address the linguistic barriers that aave speakers face in school. reform efforts must explicitly prescribe pedagogical programs that target the differences between aave and standard english. see, mills & washington infra note 131, at 576 (noting that structural differences between aave and standard english “may place children at risk for underachievement in reading, decoding in particular”). 202 columbia journal of race and law [vol. 10:2 targeted.21 moreover, because of the concrete injury inflicted by literacy proscription, legal redress may be warranted. part i will trace the history of literacy proscription in the antebellum south and describe how anti-literacy laws became increasingly stringent in response to the threat and actualization of slave insurrections. furthermore, part i will note how the legacy of literacy proscription persisted even after the civil war and the passage of the 14th amendment and denied black children an equitable education. part ii will discuss the origins of aave and the features that distinguish it from standard english. part ii will also analyze how the unique features of aave and the perception of aave pose academic challenges for young black children in schools today. finally, part iii will propose a federal funding to implement bi-dialectal programs22 to ensure that schools offer black children an equal opportunity to learn. ii. the cause and effects of literacy proscription: from the colonial south to the contemporary era anti-literacy statutes passed during the colonial and antebellum era of the american south were implemented as a means of maintaining a racialized social order, with the descendants of african people at the bottom. beginning in the mid-18th century, slaveholding colonies began to pass anti-literacy statues in order to subjugate enslaved black people to an inferior status to the white population.23 more slaveholding states enacted more stringent anti 21 id.; see also smitherman, infra note 143, at 547 (arguing that language intervention for aave-speaking students “has to be holistic, encompassing analysis and teaching of discourse, cultural-communication styles, and rhetorical strategies”). 22 bi-dialectal programs are educational programs that teach children who speak a non-standard dialect to acquire the dominant or mainstream language system used in school and the professional context. that is, the objective of bidialectalism is to teach children how to “code-switch”. the ability to codeswitch is “necessary for academic achievement because of the predominant use of a single code in the written and spoken context of schooling.” id. at 566. 23 may, infra note 41, at 242. no. 10:2] talking black 203 literacy statutes during the 19th century in response to notable slave revolts.24 the letter of the law and the force of violence proved effective in barring enslaved people from accessing literacy—at the start of the civil war, an estimated five to ten percent of enslaved people were literate.25 today, the legacy of literacy proscription continues to negatively impact the literacy rates of black children. the disparity in literacy between black and white children persists; black and hispanic twelfth grade students perform, on average, at the same rate as white eighth grade students in reading.26 black27 children will continue to face barriers to education if the underlying history of literacy proscription is not addressed. a. literacy proscription as racial subjugation in the slave-holding south legislatures of the colonial and antebellum south passed legislation prohibiting slaves from learning how to read or write, in part, as a response to uprisings led by enslaved and free blacks.28 southern state legislatures recognized a relationship between literacy and liberation—literacy could provide enslaved black people with the practical and symbolic tools to agitate and dismantle the institution of american chattel slavery.29 thus, it should be understood that 24 id. at 252–54. 25 kelley, infra note 57, at 157. 26 sonia nieto & patricia bode, affirming diversity: the sociopolitical context of multicultural education 13 (6th ed. 2012). 27 this note will primarily focus on addressing the barriers black children face in schools. this note begins with the history of literacy proscription against black people and attempts to understand how that legacy has impacted black children since the antebellum period. an opportunity gap does exist between white and hispanic children. however, by law, spanish-speaking children should have access to bilingual services. 28 may, infra note 41, at 237. 29 id. (arguing “white southern states regulated slave religion to prevent the potential twin dangers it created: 1) a moral indictment of the institution of slavery; and (2) [sic] a pretense by which slaves could assemble for insurrectionary purposes”). 204 columbia journal of race and law [vol. 10:2 slaveholding states passed anti-literacy statutes in order to subjugate enslaved black people to an inferior status to whites. anti-literacy laws prevented the overwhelming majority of slaves from learning how to read or write.30 however, proscribing literacy was not a uniform interest within the white political establishment in slaveholding states. many church denominations, religious leaders, and some slaveholders advocated for teaching slaves how to read in order to authenticate conversion into the christian faith.31 in contrast, state legislatures and many slaveholders advocated for increased restrictions on the movement and mobility of enslaved people.32 ultimately, slaveholding states enacted a series of anti-literacy laws primarily in response to enslaved individuals taking up arms to claim their liberation.33 the colonial legislature of south carolina enacted the negro act of 1740, a “compulsory illiteracy” act, making south carolina the first state to forbid and criminalize educating enslaved persons.34 the 1740 act only prohibited teaching enslaved individuals how to write.35 the legislators in south carolina believed slaves that enjoyed 30 only five to ten percent of about four million enslaved african americans were literate at the start of the civil war in the american south. span, infra note 53, at 56; see also denise c. morgan, what is left to argue in desegregation law: the right to minimally adequate education, 8 harv. blackletter j. 99, 102 (1991). 31 the church of england promoted the conversion of enslaved africans during the colonial era of american history. the society for the propagation of the gospel in foreign parts sent missionaries and catechists with the instruction to promote the conversion of the black slave population. marcus w. jernegan. slavery and conversion in the american colonies., 21 the am. hist. rev. 504, 509–10 (1916). 32 may, infra note 41, at 245–48, 253–55. 33 williams, supra note 8, at 13–16, 27 (describing anti-literacy laws that proscribed teaching enslaved and/or free black people how to read and/or write in the following states: south carolina, georgia, louisiana, north carolina, virginia, alabama). 34 span, infra note 54, at 27; may, infra note 41, at 242. 35 monaghan, infra note 44, at 316–17. no. 10:2] talking black 205 the ability to write “may be attended with great inconveniences . . .”36 the negro act of 1740 likely responded to the stono rebellion from the previous year.37 on september 9, 1739, twenty slaves in south carolina beheaded white employees of a store in charleston and then journeyed south towards st. augustine, florida.38 white planters suppressed the insurrection before the slaves could cross the south carolina border.39 forty-four blacks and twenty-one whites died during the uprising. 40 thus, the 1740 negro act also prohibited the assembly of more than seven slaves without a white chaperone and granted immunity to white persons that killed “rebellious negroes.”41 the stated legislative objective was to keep slaves “in due subjection and obedience.”42 yet african americans continued to plot insurrections to liberate themselves, and these insurrections increasingly relied on the text of their slaveholder’s religion.43 at the turn of the 19th century, slave-holding states passed more stringent anti-literacy laws that proscribed writing and reading in response to major slave revolts that were led by literate black 36 state of south carolina, the statutes at large of south carolina: acts relating to charleston, courts, slaves, and rivers 413 (david j. mccord ed., vol. 7, 2017) (1840) (citing article xlv of the act for the better ordering and governing negroes and other slaves in the province, which south carolina’s legislature passed in 1740). 37 may, infra note 41, at 240–242. 38 leon higginbotham, in the matter of color 192–94 (1978). 39 may, infra note 41, at 241. 40 joseph c. carroll, slave insurrections in the united states, 1800– 1865, 22–23 (2004). 41 nicholas may, holy rebellion: religious assembly laws in antebellum south carolina and virginia, 49 the am. j. legal hist. 237, 241–42 (2007). 42 may, infra note 41, at 242. 43 free and enslaved black people who plotted insurrections during the 19th century used the bible to legitimize their cause for liberation. the use of the bible to justify their liberation sheds light on african american interpretations of the bible that directly contradicted how slaveholders used the text of the bible to impose a christian duty on enslaved people to submit to their enslavement. id. at 243; see also allen dwight callahan, talking book: african americans and the bible 6–10 (2006). 206 columbia journal of race and law [vol. 10:2 individuals.44 in 1800, an enslaved man named gabriel prosser and an estimated seventy enslaved men were arrested for plotting a slave uprising in henrico county, virginia—twenty-six were executed.45 gabriel was a carpenter and a literate man who used religious gatherings and evening prayer meetings to orchestrate a plan intended to result in the enslaved population controlling the city of richmond.46 more importantly, gabriel and his brother, martin, cited the text of the bible to legitimize the plot and quell concerns of their co-conspirators.47 furthermore, both ben and martin had the mobility needed to plan an insurrection in the city of richmond. indeed, gabriel successfully amassed thousands of enslaved individuals because many co-conspirators were highly-skilled artisans who had the ability to travel between the city and the countryside.48 it is believed that those plotting the insurrection forged passes for themselves in order to travel between the city and the countryside.49 consequently, slave-holding states extended literacy proscription to include its free black population throughout the first 44 for example, south carolina’s negro act of 1740 imposed criminal penalties for anyone who taught or caused an enslaved person to write. whereas, south carolina’s compulsory illiteracy act of 1800 expanded the reach of literacy proscription: prohibiting the assembly of enslaved and free black people for the purpose of “mental instruction,” which could include reading, writing, memorization, arithmetic, etc. georgia’s 1829 act explicitly prohibited any enslaved person, free person, or any white person from teaching black people—whether enslaved or free—from learning how to read or write. e. jennifer monaghan, lecture, reading for the enslaved, writing for the free: reflections on liberty and literacy, am. antiquarian soc’y 309, 316– 17, 333 (2000); williams, supra note 8, at 13. 45 michael l. nicholls, gabriel’s conspiracy (1800), encyclopedia virginia (apr. 21, 20116), https://www.encyclopediavirginia.org/gabriel _s_ conspiracy_1800; midori takagi, rearing wolves to our own destruction: slavery in richmond, virginia, 1782-1865 62–63 (2002). 46 id.; callahan, supra note 43, at 6. 47 may, supra note 41, at 244. 48 takagi, supra note 45, at 62–63; callahan, supra note 43, at 6. 49 antonio t. bly, slave literacy and education in virginia, encyclopedia virginia (july 11, 2017), https://www.encyclopediavirginia.org/slave_ literacy _and_education_in_virginia. no. 10:2] talking black 207 half of the 19th century.50 south carolina’s statute of 1800 banned enslaved and free black people from gathering with the purpose of “mental instructions” even in the presence of a white person—such assembly was deemed “unlawful”.51 the broad language of “mental instructions” could include reading, writing, memorization, arithmetic, and more.52 the 1800 statute imposed a penalty for a maximum of twenty lashes to any person of color caught unlawfully gathering (i.e. gathering for mental instruction).53 the virginia revised code of 1819 also outlawed any enslaved or free black person from attending any gathering or school for instruction in reading or writing.54 the mississippi legislature enacted a statute that banned the education of enslaved and free black people; additionally, the mississippi statute prohibited black people from meeting at night in groups of more than five people.55 between 1829 and 1834, alabama, georgia, louisiana, and north carolina all passed similar legislation that prohibited schools from educating enslaved and free black people in the instructions of reading or writing.56 50 monaghan, supra note 44, 316–17, 333; williams, supra note 8, at 13; callahan, supra note 43, at 10. 51 an act respecting slaves, free negroes, mulattoes, and mestizoes, for enforcing the more punctual performance of patrol duty, and to impose certain reflections on the emancipation of slaves in acts and resolutions of the general assembly, of the state of south-carolina, passed in december, 1800 (printed by daniel & j.j. faust, 1801); williams, supra note 8, at 13. 52 id. 53 id. see also christopher m. span, post-slavery? post-segregation? postracial? a history of the impact of slavery, segregation, and racism on the education of african americans, 114 nat’l soc’y study educ. 56 (2015). 54 kelly, infra note 57, at 156; christopher span, learning in spite of opposition: african american and their history of educational exclusion in antebellum america, 131 pol. curricular change 26, 56 (2005). 55 williams, supra note 8, at 205. 56 in 1829, georgia’s state legislature passed a law outlawing teaching any enslaved or free black person to read and penalized the importation and circulation of “any printed or written pamphlet, paper or circular, for the purposes of exciting to insurrection, conspiracy or resistance among the slaves, negroes, or free persons.” in 1830, louisiana lawmakers criminalized enslaved 208 columbia journal of race and law [vol. 10:2 lastly, nat turner, a literate, enslaved preacher, led the deadliest slave rebellion that resulted in the death of over fifty white people in south hampton county, virginia.57 religious experiences drove him to plan and execute the 1831 rebellion in south hampton county, virginia.58 in his confession, turner attested that a series of divine encounters, beginning in 1825, gave him the impetus to move the rebellion forward.59 on may 12, 1828, turner reported, “i heard a loud noise in the heavens, and the spirit instantly appeared to me and said the serpent was loosened, and christ had laid down the yoke . . . and that i should take it on and fight against the serpent . . . .”60 in the aftermath of turner’s rebellion, virginia and south carolina passed new legislation that punished anyone caught teaching black people—enslaved or free—how to read or write.61 unlike prior statutes, south carolina’s 1834 legislation established criminal penalties for teaching black people how to read or write.62 whether through the law or customs of slave plantations, literacy proscription proved to be an effective deterrent. people from learning to read or write. in 1830, north carolina legislatures enacted a statute prohibiting any free or enslaved person from teaching an enslaved person to read or write, believing that literacy “has a tendency to excite dissatisfaction in [enslaved people’s] minds, and to produce insurrection and rebellion, to the manifest injury of the citizens of the state.” in november 1831, the alabama legislature passed a law forbidding any person to teach any free or enslaved black person how to spell, read, or write id. at 13–15. see also kelly, infra note 57, at 156. 57 may, supra note 41, at 251–52; melvin j. kelley, iv, interpreting equal protect clause jurisprudence under the whiteness-bell curve, 21 j. gender race & justice 135, 156 (2017). 58 thomas gray interviewed nat turner while turner was incarcerated before his scheduled execution. gray, then, transcribed his conversation with turner. thomas r. gray, the confessions of nat turner 10 (1831). 59 id. at 9-10. 60 id. at 11. 61 span, supra note 53, at 56; callahan, supra note 43, at 10. 62 may, supra note 41, at 253–54. no. 10:2] talking black 209 by the start of the civil war, only five to ten percent of enslaved people had learned how to read.63 b. de facto literacy proscription post-bellum despite the passage and ratification of the civil war amendments, former slave-holding states continued to oppress black people by denying access to equitable educational opportunities, and therefore literacy.64 during the first decade after emancipation, free public schools under the freedman’s bureaus were established throughout former confederate states to educate newly freed slaves, as established by congress in 1866.65 on the state level, former confederate states enacted provisions guaranteeing the civil and political rights of all citizens of the state in order to gain congressional readmittances into the union.66 in 1870, virginia amended its constitution to require free public education for all state children, without respect to race.67 furthermore, the 1870 constitution of virginia required the general assembly to “make such laws as shall not permit parents and guardians to allow their children to grow up in ignorance and vagrancy.”68 virginia’s amended constitution recognized extending a free formal education to all children of the 63 kelley, supra note 57, at 157. 64 morgan, infra note 108, at 103–04 (noting that “even into the mid-twentieth century, when compulsory school attendance laws were in force in every state, segregated educational facilities for black students continued to be unequal to those provided for white students”). 65 verna l. williams, reading, writing, and reparations: systemic reform of public schools as a matter of justice, 11 mich. j. race & law 419, 445 (2006) (citing the civil rights act of 1866, 42 u.s.c § 1981). from 1865 to 1870, the freedmen’s bureau opened over 4000 schools, which were attended by over 250,000 black people. the bureau was shut down in 1870. morgan, infra note 108, at 103. 66 id. at 446. 67 id. 68 id. at 447 (citing va. const. of 1870, art. viii, §§ 3, 4 (1870)). 210 columbia journal of race and law [vol. 10:2 state regardless of their race or class as essential to the public good.69 the stark reversal from anti-literacy laws gave formerly enslaved people a newfound hope in obtaining an education. this hope quickly evaporated as northern troops departed from former confederate states, which signaled the end of reconstruction.70 legislators from these states structured their education system to provide a segregated and underfunded schooling for african american children.71 these measures were taken to curb the political and economic progress made by black people after the civil war.72 furthermore, the supreme court’s ruling in plessy v. ferguson recognized the constitutionality of laws mandating the separation of races as authorized by the police power of state legislatures.73 the court explicitly distinguished between laws that interfere with the political equality of black people and laws that require the separation of races in schools.74 only the former constituted a violation of the 14th amendment.75 the supreme court continued to defer to the police power of state legislatures in response to state funding schemes that unequally distributed funds between black and white schools. three years after its decision in plessy, the court unanimously held that the school board of richmond county, virginia did not violate the 14th amendment to the u.s. constitution when it closed the only high school for black students, though the school board continued to support a public high school for white girls.76 in cumming, the court deferred to the discretion of the richmond county school 69 id. (noting that “[t]he framers of the 1870 constitution thus linked education with the overarching goal of assuring all persons meaningful participation in the civic and political life of the state”). 70 kelley, supra note 57, at 161. 71 williams, supra note 65, at 449–51 (citing the virginia constitution of 1901 stating, “[w]hite and colored children shall not be taught in the same school.”). 72 id. 73 plessy v. ferguson, 163 u.s. 537, 544 (1896). 74 id. at 545. 75 id. 76 cumming v. bd. educ. richmond city, 175 u.s. 528, 542–45 (1899). no. 10:2] talking black 211 board. justice harlan stated, “it’s impracticable to distribute taxes equally.”77 thus, the descendants of formerly enslaved black people had no recourse from attending unequal and inadequate schools. 78 moreover, southern state legislatures took advantage of the supreme court’s decisions in plessy and cumming to institutionalize the segregation and inequitable funding of public schools in the jim crow south well through the mid-twentieth century.79 even after the court’s landmark decision in brown, southern congressmen declared their intention to resist desegregation.80 like the civil rights act of 1866, the supreme court’s decision in brown v. board of education marked a significant shift in expanding the elementary and secondary educational opportunities for african american children by overruling the “separate but equal” doctrine in public education.81 in the aftermath of the brown decision, 100 democratic congressmen from southern states drafted a manifesto describing the supreme court’s decision in brown as an abuse of judicial power.82 in 1956, democratic senator walter george from georgia read the “southern manifesto” before the senate floor outlining the intention of the signatories to resist desegregation.83 prince edward’s county, virginia closed the entire school board 77 id. at 542. 78 see, e.g., williams, supra note 65, at 454–56 (noting that “by 1922, the state of virginia spent $12 million to educate whites, compared to $1 million to educate blacks.”); see also neil mcmillen, dark journey: black mississippians in the age of jim crow 40 (1989) (explaining that in the 1949–1950 school year, the state of mississippi expended $32.55 per black child and $122.93 per white child). 79 morgan, infra note 108, at 104–05 (finding that “[i]n 1940 the south was spending more than twice as much to educate each white child, as it spent to educate each black child”); see also mcmillen, supra note 78, at 40 (describing the inequitable funding for the public education of black children in mississippi). 80 see “southern manifesto,” 102 cong. rec. 4459–61 (1956). 81 brown v. bd. of educ., 347 u.s. 483, 495 (1954). 82 bryan l. adamson, a thousand humiliations: what brown could not do, 9 the scholar 187, 197 (2007) (citing southern manifesto, 102 cong. re. 4515–16 (1956)). 83 102 cong. rec. 4459–61 (1956). 212 columbia journal of race and law [vol. 10:2 system from 1959-1964, rather than integrate.84 in 1977, the fifth circuit court of appeals found the school district in lowndes county, mississippi failed to remedy the unconstitutional levels of segregation in its public schools.85 today, the disparity in literacy between black and white children persists; black and hispanic twelfth grade students, on average, perform at the same rate of white eighth grade students in reading.86 the problem is not simply a gap in outcome between students of color and white students—black and hispanic children are falling significantly behind. c. traditional explanations for the “achievement gap” minimize the effects of the history of literacy proscription researchers and scholars have come up with three main conclusions to explain what is referred to as the “achievement gap”87 between white and black students. first, structural inequities have long been held as the principle cause of disparities in outcomes between white and black children. the scholarship within this framework charges that the inequitable distribution of 84 williams, supra note 8, at 436. 85 see united states v. columbus mun. separate sch. dist., 558 f.2d 228, 230– 232 (1977) (citing evidence that “hughes, by far the district’s largest elementary school, was 100% black and gravely overcrowded. coleman, mitchell, and union, the other traditionally black elementary schools, remained predominantly black. two-thirds of the district’s black elementary students attended identifiably black schools. sale and brandon, on the other hand, were identifiably white, having white populations of 99.0 and 93.2%”). 86 nieto & bode, supra note 26. 87 the “achievement gap” occurs when a group of students (e.g. based on race/ethnicity) academically outperforms another group and “the difference in average scores for the two groups is statistically significant.” achievement gaps, nat’l ctr. for educ. statistics (last updated july 5, 2019), https://nces.ed.gov/nationsreportcard/studies/gaps/. the disparities in educational outcomes between white and black students can best be understood as “the predictable manifestations of ‘opportunity gaps’ rooted in our nation’s legacy of slavery, segregation, and racism.” kelley, supra note 57, at 138. no. 10:2] talking black 213 resources results from racist policies that are “designed to concretize failure in poor schools.”88 high-poverty, majority-minority schools receive on average $900 less per student than well-off, predominantly-white schools.89 high-poverty schools are more likely to have underqualified and underexperienced teachers.90 as a consequence, advocates continue to promote integration as a solution to these inequities.91 in 1966, the seminal “coleman report” linked the achievement of children to the racial composition of a school; it concluded that black children would benefit from learning in majority white schools.92 contemporary advocates for integration shift their analysis towards the practical benefits of black children learning alongside white children as the american political economy invests quality resources into the education of white children.93 in fact, a recent report found that predominantly white school districts receive $23 billion more in school funding than districts that primarily serve 88 jeffrey m. duncan-andrade & ernest morrell, the challenge and opportunities of urban education, 285 the art of critical pedagogy 10 (2008). 89 chandra j. foote, the challenge and potential of high-need urban education, 74 j. negro educ. 371, 372 (2005). 90 id. 91 hannah-jones, infra note 93 (describing her positive experience attending integrated school in the 1980’s. hannah-jones cites a 2015 longitudinal study by the economist rucker johnson who found that black adults who had attended desegregated schools were more likely to go to college, reside in integrated neighborhoods, and even live longer in comparison to their counterparts who attended segregated schools.” 92 elizabeth evitts dickinson, coleman report set the standard for the study of public education, johns hopkins magazine (winter 2016), https://hub.jhu.edu/magazine/2016/winter/coleman-report-public-education/. 93 see, e.g., nikole hannah-jones, choosing a school for my daughter in a segregated city, n.y. times magazine (june 9, 2016), https://www.nytimes. com/2016/06/12/magazine/choosing-a-school-for-my-daughter-in-asegregated-city.html (citing a 2010 study by the century foundation which found that when children from public housing in montgomery, maryland enrolled in middle-class schools, the differences between their scores and those of their wealthier classmates decreased by half in math and a third in reading). 214 columbia journal of race and law [vol. 10:2 students of color.94 though a practical solution, in theory, undercurrents of white supremacy problematize the push for integration. school integration efforts implicitly rely on deficit models and suggest that the academic achievement of black children depends on the norms and values of white, middle-class culture. in contrast, the culture of black children, especially those from low-income backgrounds, is perceived as having no value to their learning.95 the movement for multicultural education responds to this critique. led by james banks, the multicultural education movement in the 90s found that issues of pedagogy could best explain the disparate academic outcomes between black and white children.96 black children encounter a curriculum that is homogenous and reflective of middle-class, euro-centric values.97 thus, cultural clashes arise between the home culture of children of color and the culture of schools and teachers.98 as the population of school children diversifies, the multicultural movement advocates for the need to transform the structure of school curriculum so that students may learn from a diversity of perspectives.99 james a. banks established a framework to integrate multiculturalism into class content. in banks’ framework, students engage with a multicultural curriculum that ultimately encourages students to address social 94 clare lombardo, why white school districts have so much more money, npr (feb. 26, 2019, 2:00 pm), https://www.npr.org/2019/02/26/ 696794821/ why-white-school-districts-have-so-much-more-money. 95 see nieto & bode, infra note 26, at 258 (noting that school failure can be explained by “school perception of student’s language, culture, and class, as inadequate and negative”) (emphasis added). 96 orhan agirdag et al., understanding of multicultural education and the correlates of multicultural content integration in flanders, 48(6) edu. & urban soc’y 556, 560-561 (2014) (noting “[james bank’s] approach is the most widely used framework in the field of multicultural education, though it has been criticized by both conservative and radical scholars”). 97 james a. banks, approaches to multicultural curriculum reform, in multicultural education: issues and perspectives 234 (james a. bank & cherry a. mcghee banks eds., 2010). 98 id. 99 id. no. 10:2] talking black 215 issues.100 while engagement is often the critical first step in learning, students still need a pedagogy that targets the reading barriers that black children face. similar to the multicultural movement, advocates for culturally responsive pedagogy (“crp”) viewed pedagogical inefficiencies as the driving factor for the underachievement of black children.101 crp, in contrast to the multicultural movement, transforms the curriculum to reflect the specific culture of students and their communities.102 lastly, other advocates for educational equity point to sociocultural factors that impede the academic success of black children from low-income communities. pedro noguera details the external challenges that specifically affect the outcomes of african american males. according to noguera, high rates of neighborhood violence, drug trafficking, and unemployment are factors that invariably contribute to low academic performance.103 not only must these issues be accounted for, noguera argues that school reform cannot take place without acknowledging the lived experiences of inner-city youth: “schools are inextricably linked to the social and economic environment where they are located, and the factors that influence child development—health, nutrition, safety, emotional support, among others—invariably influence learning and achievement.”104 pushing schools to provide services and resources to account for the sociocultural needs of children is important; however, overemphasizing sociocultural factors leaves room for schools to 100 banks frames integrating multicultural content across four stages: the contributions approach, additive approach, transformation approach, and the social actions approach. id. at 240–46. 101 see nawang phuntsog, the magic of culturally responsive pedagogy: in search of the genie’s lamp in multicultural education, 26 teacher educ. quarterly 97, 97-100 (1999). 102 id. at 100. 103 pedro a. noguera, urban schools and the black male “challenge”, in handbook of urban education 114-16 (h. r. milner & kofi lomotey eds., 2013). 104 id. at 115. 216 columbia journal of race and law [vol. 10:2 shift its responsibility and blame communities or single-parent households for the underperformance of black children.105 structural inequities, pedagogical inefficiencies, and sociocultural factors do inhibit the academic successes of black children. nonetheless, the original sin of literacy proscription must be considered in order to produce sustainable and wide-reaching reforms in education equity. in 2010, authors of a discussion paper with the institute for the study of labor conducted an empirical analysis on the data of racial disparities in education from 1940 to 2000. the researchers concluded that there was a positive correlation between slavery and the current degree of educational inequality.106 the real question, then, is how the political, economic, and social structures that led to the creation of anti-literacy laws continue to undermine the literacy rates of black children. christopher span affirms, “every generation of african americans in the history of this nation has been systematically and intentionally denied the opportunity to learn on an equal basis.”107 iii. legal barriers to literacy, black english, and the current literacy rates of black children the legacy of anti-literacy laws together with the development of aave have inevitably created learning challenges for black children today. the anti-literacy laws of the antebellum south not only barred enslaved black people from learning how to read and write, but also these enactments prevented enslaved people from learning how to speak standard american english.108 with limited 105 nieto and bode explain that the fact that students may not speak standard english or come from single-mother households continues to be used to rationalize disparities in academic performance of students from low socioeconomic status. nieto & bode, supra note 26, at 258. 106 graziella bertocchi & arcangelo dimico, the racial gap in education and the legacy of slavery, 40 j. comp. econ. 581 (2012). 107 span, supra note 54, at 69. 108 vernon valentine palmer, the customs of slavery: the war without arms, 48 am. j. legal hist. 177, 213–14 (2006); denise c. morgan, what is left to no. 10:2] talking black 217 access to formal education, black people were compelled to develop a dialect of english that was rooted in how english sounded to them. therefore, when the formerly enslaved gained access to educational institutions, they had to confront the phonetic and grammatical differences between aave and standard english before they could master reading comprehension. the seminal elementary and secondary education act of 1965 (“esea”) guarantees the right to equal educational opportunities for all children.109 yet, today, black children still confront this same problem of bridging the gap between aave and standard english, which is frequently overlooked by educators and policymakers. instead, speakers of aave are told to speak “proper english” or they are penalized for honest misunderstandings between the student and the teacher.110 ultimately, schools must recognize that many black children enter school as speakers of aave and thus need to be taught how to decode standard english, which is necessary for reading comprehension.111 furthermore, schools must seek ways to uphold the mandate that children obtain an equitable education. a. the origins of african american vernacular english argue in desegregation law: the right to minimally adequate education, 8 harv. blackletter j. 99, 102 (1991); smitherman, infra note 143, at 547. 109 elementary and secondary education act of 1965, 20 u.s.c. § 6301 (2018) (amended by pub. l. no. 115-224 (2015)). 110 delpit, infra note 154, at 288–291. delpit found that black children from working-class families came from homes where their parents used explicit directives when commanding their child to complete a task. whereas, delpit observed that middle-class teachers tend to couch verbal directives as questions (e.g. would you like to sit down now?). “those veiled commands are commands nonetheless . . . if veiled commands are ignored, the child will be labeled a behavioral problem.” id. 111 see brandi l. newkirk-turner, ramonda horton & ida j. stockmakn, language acquisition in the african american child: prior to age four, in oxford handbook of african american language 441 (sonja laneheart ed., 2015) (noting that “american children who acquire [aave] are no exception to the long-standing evidence that children acquire the language system to which they are exposed from a very early age). 218 columbia journal of race and law [vol. 10:2 currently, linguists have two working theories on the origin of aave. first, some linguists believe that aave developed as an english creole or creole-influenced dialect that developed on american slave plantations. that is, enslaved africans created a pidgin (a make-shift language) that resembled the english language but conformed to an african grammar, similar to creolized forms of english spoken in jamaica, other caribbean islands, and the gullah islands of coastal south carolina and georgia.112 earlier creolist suggest that aave started as a creole then underwent a decreolization process in the aftermath of the civil war.113 current creolist, like john rickford, describe aave as creole-influenced, meaning that aave is rooted in english with some features that derive from creole origins.114 rickford draws on sociohistorical conditions and the similarities between aave and other english creoles to substantiate the creole origin hypothesis. rickford observes that conditions in the middle colonies and the south enabled the importation of creole. during the 18th century, the majority of u.s.-bound slaves were imported from caribbean islands where enslaved individuals were more likely to speak an english creole.115 rickford also notes that the absence of the copula and the auxiliary is and are is similar to other english creoles; this feature cannot be attributed to british english or other english dialects.116 in contrast, dialectologists or anglicists theorize that aave derived from earlier english varieties such as irish and scottish dialects spoken by indentured servants.117 the english origin hypothesis argues that aave originally derived many of its features from nonstandard varieties of english, but many of those 112 john r. rickford, creole origins hypothesis, in oxford handbook of african american language 35, 37 (sonja laneheart ed., 2015). 113 gerard van herk, the english origins hypothesis, in oxford handbook of african american language 24 (sonja laneheart ed., 2015). 114 rickford, supra note 112, at 36. 115 id. at 37–38. 116 id. at 41–48. 117 donald winford, the origins of african american vernacular english: beginnings, in oxford handbook of african american language 92–95 (sonja laneheart ed., 2015). no. 10:2] talking black 219 features have been obscured as aave “has undergone its own internally driven change . . . .”118 some features of aave that are similar to other historical or regional varieties of english include consonant cluster reduction; g-droppin’; aint; and the existential it.119 for the purpose of this note, it is not necessary to determine which theory is most credible. linguists agree that the features of aave “are part of a system with a long history.”120 what is clear is that aave is not derived from the standard english spoken during the colonial and antebellum period. the ability to learn a language first requires phonological and phonemic awareness.121 enslaved black people were systematically denied the opportunity to learn the phonology and morphology of standard english—the fundamental elements of learning a language. therefore, enslaved black people created and developed their distinct linguistic tradition given their distance from formal and informal educational spaces. this linguistic tradition has passed down through generations of african american families. b. the relationship between aave & literacy acquisition when entering school, linguistic barriers underlie the obstacles black children face when learning how to read and write in standard english. though aave and standard english share many overlapping features, distinctive features of aave produce challenges for black children since they are evaluated on their ability to read and comprehend standard english. specifically, academic challenges arise because our schools have not accommodated the needs of aave speakers. 118 van herk, supra note 113, at 23. 119 id. to illustrate, specific becomes pacific; running becomes runnin; isn’t becomes aint. “it be like that sometimes” loosely translates to life happens in standard american english. see urban dictionary, https://www.urbandictionary. .com/define.php?term=it%20be%20like%20that%20sometimes, (last visited apr. 11, 2020). 120 van herk, supra note 113, at 29. 121 see elhassan et al., infra note 133. 220 columbia journal of race and law [vol. 10:2 important features of aave impact the ability of black children to learn how to read and comprehend standard english. first, certain phonetic elements of aave contrast with standard english. reading comprehension begins with teaching phonemes and phonological awareness. for this reason, we teach children to “sound out” words. in aave, certain sounds, or phonemes, do not exist and are replaced, and other phonemes are omitted. for example, some features that differentiate aave from standard english include replacing the voiceless dental [q] with [f] (e.g. earth becomes earf);122 replacing the voiced dental [ð] with [v] or [d] (e.g. breathe becomes breave and them becomes dem); reduction of consonant clusters (e.g. passed and past become pass); and gdroppin’.123 second, certain features of aave regarding syntax conflict with the rules of grammar of standard english. aave is marked by negative concord; ain’t in negation; irregular or bare past tense forms (e.g. jump for jumped); preterite/participle variations; the habitual be and steady (e.g. he be at work); and remote perfect been/bin (e.g. she bin had that car).124 additionally, the absence of the copula and auxiliary is and are do not conform with the grammar of standard english.125 such absences can be observed in noun phrases, adjectives, locative phrases, and verb phrases.126 to illustrate, “she at school” or “he eatin’ breakfast” conform with the features of aave. 127 because reading starts with language acquisition, when black children commence their schooling, they may inevitably experience dissonance between the english they speak and the english they read in their classrooms. moreover, both teachers and students may not recognize the conflict in phonics and syntax 122 the author created the examples in this paragraph and the proceeding one to help the reader comprehend the differences between aave and standard english. 123 van herk, supra note 113, at 29; see also mills & washington, infra note 131, at 572. 124 van herk, supra note 113, at 26–27, 29. 125 rickford, supra note 112, at 41–42. 126 id. at 42. 127 id. no. 10:2] talking black 221 between aave and standard english. as a result, black children face many academic challenges in school without any support services that address their linguistic barriers. c. academic challenges that aave speakers face the lack of accommodations and support for aave speakers is the driving factor behind the low literacy rates of black children. black children encounter linguistic barriers that impact their academic achievement in schools, yet schools and policymakers often overlook this barrier. speakers of aave are primarily, though not exclusively, african american from all socioeconomic backgrounds.128 speaking aave largely correlates with residence in an aave speaking community.129 some scholars have estimated that ninety percent of african american children speak aave upon school entry. 130 while that number decreases as more students gain substantive exposure to standard english, children who speak aave face a number of challenges as they learn how to read and write in standard english. 131 first, speakers of aave encounter difficulties with reading and writing due to particular differences in structural features between aave and standard english. second, the perception of aave in schools may lead black children to feel intellectually deficient. lastly, the american education system burdens speakers of aave while simultaneously denying appropriate support. first, several structural differences between aave and standard english complicate the efforts of black children learning to read. on a linguistic level, language acquisition is foundational to reading development: “the initial three years of the life span are a critical time period during which the foundation of a language is 128 mills, infra note 131, at 567–68. 129 id. at 567. 130 mills & washington, infra note 131, at 568. 131 monique t. mills & julie a. washington, managing two varieties: codeswitching in the educational context, in oxford handbook of african american language 567–68 (sonja laneheart ed., 2015). 222 columbia journal of race and law [vol. 10:2 established.”132 reading, then, begins with phonological awareness; additionally, decoding morphemes and reading fluency couple together to encourage reading comprehension.133 because of linguistic barriers, black children often experience difficulties mastering these fundamental elements of reading. for example, the reduction of consonant clusters and word final clusters along with the deletion of [r] alters the syllabi structure of the standard english form of a word, which may impede the ability to master phonological awareness of standard english.134 the reduction of consonant clusters especially becomes an issue when students have to decipher between past and present tense. students will see the phrase “the browns passed by the school” but will read and comprehend “the browns pass by the school,” which contravenes the rules of standard english.135 furthermore, black children do not realize that they are speaking an english language variety. instead, they are taught to believe that they are speaking “improper” english, yet they likely don’t know how to speak “proper” english. therefore, many black children encounter dissonance between the language they speak and the language they engage with in their classrooms.136 this dissonance produces academic challenges.137 researchers have found an inverse relationship between dialect density and reading achievement in african american children in first through fifth grade.138 meaning, greater dependency on aave negatively correlates with reading 132 newkirk-turner, supra note 111, at 439. 133 see zena elhassan et al., the contribution of phonological awareness to reading fluency and its individual sub-skills in readers aged 9to 12-years, 8 frontiers psychol. 533, 1–2, 5–6 (2017). 134 mills & washington, supra note 131, at 572. 135 see, e.g., van herk, supra note 113, at 26 (noting the “[b]are past tense verb forms (as in jump for jumped)”). 136 van hofwegen, infra note 166, at 469 (citing studies that suggest aavespeaking children in the younger grades are “particularly vulnerable in their academic achievement, as their home variety may interfere with their abilities to discern what is being asked of them, irrespective of cognitive ability”). 137 id. 138 mills & washington, supra note 131, at 571. no. 10:2] talking black 223 achievement.139 the effects of dialect density are significant because the primary years in school significantly shape the academic achievement of children throughout their educational careers.140 according to developmental psychologist, erik erickson, children aged five through twelve enter the psychosocial stage of “industry versus inferiority” where academic outcomes can lead children to feel self-confident or inadequate.141 in the stage of “industry versus inferiority,” students who do not experience the correlation between effort and academic achievement risk internalizing sentiments of inferiority, failure, and incompetence.142 therefore, children who speak aave risk internalizing feelings of failure when they extend efforts to learn how to read yet continue to struggle. second, the stigmatization of aave and the use of deficit theories have created environments that are hostile to aave speakers. in the 1960’s, early psychologists known as “linguisticcognitive deficit theorists” described black english as “a non-logical mode of expressive behavior . . . lacking the formal properties necessary for cognitive concepts.”143 this description of black english is rooted in “the long history of scientific racism and social pathology whereby african peoples were deemed biologically [underdeveloped] and intellectually inferior to whites.”144 deficit theories of aave are still present in schools today and shape the relationship between students and school.145 this is problematic 139 id. 140 researchers doris entwisle and karl alexander argue that, “[h]ow well students do in the primary grades matters more for their future success than does their school performance at any other time.” anita woolfolk, educational psychology 89 (12th ed. 2013). 141 id. at 88. 142 id. at 88–89. 143 geneva smitherman, african american language and education: history and controversy in the twentieth century, in oxford handbook of african american language 548–49 (sonja laneheart ed., 2015). 144 id. 145 see, e.g., banks, supra note 97, at 243 (noting that “[m]any students of color are alienated in the school in part because they experience cultural conflict and discontinuities that results from cultural differences between their school and community”). 224 columbia journal of race and law [vol. 10:2 because how schools and teachers perceive a student’s language is an important indicator of student success.146 sonia nieto and patricia bode argue, “it is school perceptions of students language, culture, and class as inadequate and negative . . . that help explain school failure.”147 the idea of self-fulfilling prophecy can help explain why perception of student language can lead to academic failure. ray rist explored how teachers’ low expectation of students from economically and ethnically marginalized backgrounds can lead to a self-fulfilling prophecy of low academic performance.148 rist observed a cohort of students from kindergarten to second grade.149 initially, their kindergarten teachers differentiated the students into table groups that highly correlated with students’ family income.150 what is more, the teacher made permanent seating arrangements without formally testing the students. 151 not only did her interaction with students vary based upon the group she worked with, but also rist witnessed how students seated at the high-status group ridiculed and even belittled their peers sitting at the low-status group.152 when the children moved to the first grade, the initial label given by the kindergarten teacher followed the children.153 the stigmatization of aave also impacts the way black children perceive themselves. black children internalize that negative perceptions of aave based on their interactions with teachers and students. education researcher, lisa delpit, recorded a conversation with a black student and his black teacher on the value of reading a children’s book written in black english: 146 nieto & bode, supra note 26, at 263. 147 id. at 258. 148 see generally ray rist, student social class and teacher expectations: the self-fulfilling prophecy in ghetto education, 70 harv. educ. rev. 257 (her classic reprint 2000) (1970). 149 id. at 271–76. 150 id. 151 id. 152 id. at 279. 153 id. at 283–284. no. 10:2] talking black 225 joey: . . . i think they shouldn’t make books like that. teacher: why? joey: because they are not using the right way to talk and in school they take off for that, and li’l chirren grow up talking like that and reading like that so they might think that’s right, and all the time they getting bad grade in school, talking like that and writing like that.154 the conversation between joey and his teacher reveals the awareness of speakers of aave that usage of their language receives negative consequences in schools. more importantly, joey’s sentiments underscore a negative value judgement of the language that he spoke. observing children penalized for speaking aave likely contributed to joey’s negative association with the dialect. lastly, the american public education system is structured to disadvantage black children in comparison to their counterparts that speak standard english. to begin with, the disparities between black and white children start before kids enter school. researchers betty hart and todd risley conducted a longitudinal study and concluded that a 30-million-word gap exists between three-year-old children from wealthy and poor families.155 this is significant because vocabulary acquisition later predicts reading skills and school success.156 hart and risley found that the rate of vocabulary of a three-year-old child predicted student test performance on language 154 lisa delpit, other people’s children: cultural conflict in the classroom 43 (2006). 155 betty hart & todd r. risley, the early catastrophe: the 30 million word gap by age 3, am. educator 4, 6–8 (2003); but see jill gilkerson et al., mapping the early language environment using all-day recordings and automated analysis, 26 am. j. speech language pathology 248, 261 (2017) (arguing that a four-million-word gap exists by age four between children from the highest and lowest socioeconomic group). 156 hart & risley, supra note 155, at 8; see also holly k. craig & julie a. washington, malik goes to school: examining the language skills of african american students from preschool-5th grade 102 (2006). 226 columbia journal of race and law [vol. 10:2 skills and vocabulary acquisition in the third grade.157 what is more, black children have the added burden of mastering standard english without any direct dialect support programs for aave speakers. we know that schools disadvantage aave speakers because black children that successfully master standard english perform better than their peers that don’t.158 thus, our schools privilege children who start school speaking standard english. as such, black children from low socio-economic status are particularly vulnerable to struggling in school.159 these children tend to live in marginalized communities where schools are under-funded and under-resourced.160 thus, these children have limited opportunities to authentically engage with the vocabulary and grammar of standard english, which they need in order to excel in school.161 reflecting on the findings of his original study thirty years later, rist noted, “[t]he stratification of the american underclass is now more permanent and pervasive than thirty years ago. add to this the isolation from the centers of economic growth of those who are both poor and minority and the picture is not a pretty one.”162 the american public education system has yet to afford black children an equal opportunity to learn. instead, schools are structured to penalize black children because of the language variety that they speak. if the federal government wishes to ensure that all children have the “opportunity to receive a fair, equitable, and high-quality 157 id. 158 mills & washington, supra note 131, at 566, 576 (finding that children who shift toward speaking standard american english in school settings by the end of third grade are likely to be one or more grade levels ahead of their peers in reading by the end of fourth grade). 159 id. at 573 (noting that heavy dialect users tend to come from working class or low socioeconomic status). 160 foote, supra note 89, at 372–73. 161 see mills & washington, supra note 131, at 568 (noting that children who do not make the switch from aave to standard english face “welldocumented challenges to academic achievement in areas such as reading”). 162 ray rist, student social class and teacher expectations: the selffulfilling prophecy in ghetto education, 70 harv. educ. rev. 257, 263 (her classic reprint 2000) (1970). no. 10:2] talking black 227 education,”163 then it must tackle the ways schools unfairly burden the educational outcomes of aave speakers. iv. bi-dialectal programs as legal remedy and redress for aave-speaking children the legal landscape has not equipped american schools to address the linguistic barrier that that majority of black children encounter when they first enter schools.164 instead, schools unfairly burden black children to learn standard english without any support services that target the difference between standard english and aave.165 while many black children make the transition to standard english, many more do not.166 in particular, black children that live in communities isolated from mainstream society are more vulnerable to struggling academically in school.167 the current tools and resources available in schools cannot resolve the underlying issues that leave many black children “graduating” from high school functionally illiterate.168 federal and state laws and policies must 163 20 u.s.c. § 6301. 164 title iii of the every student succeeds act does not account for students who speak non-standard english dialects. see 114 pub. l. no. 95, § 3102. this fact is alarming given that anywhere up to 90% of black children speak aave upon school entry. see mills & washington, supra note 131, at 568. 165 rather, many teachers expect the usage of standard english in their classrooms and even hold “negative language ideologies” about language varieties like aave. mills & washington, supra note 131, at 576. 166 janneke van hofwegen, the development of african american english through childhood and adolescence, in oxford handbook of african american language 456–62 (sonja laneheart ed., 2015) (observing a decrease in the use of aave in early schooling followed by an increase in the use of aave by students in early adolescence). 167 channa m. cook-harvey et al., leveraging educational opportunity through the every student succeeds act 20, (learning policy institute 2016) (noting that “[r]acially segregated, high-poverty schools have a strong negative association with students’ academic achievement”). 168 see generally lauren camera, african-american students lagging far behind, u.s. news (dec. 11, 2015, 5:15 pm), https://www.usnews.com/ news/articles/2015/12/11/african-american-students-lagging-far-behind; see 228 columbia journal of race and law [vol. 10:2 adapt to meet the linguistic challenges that many black children face. all children deserve access to an equitable education. though education is not a fundamental right recognized by the u.s. constitution,169 the supreme court has found that education is a priority of incredible importance for state authorities.170 furthermore, framers of the civil war amendments recognized the necessity of providing educational opportunities for the formerly enslaved population.171 the framers connected education with the national agenda of granting black people the rights of full citizenship in the union. congressmen ignatius donnelly, a radical republican, asserted, “if it is, then, true that we must make the freedmen fully free, and if the right of suffrage is necessary to this freedom, then it is equally necessary that education should accompany freedom.”172 at the same time, white supremacists who were committed to maintaining a racial caste system understood that the lack of educational opportunities could and should be used to disenfranchise the black population from true political participation.173 today, the legal landscape is not doing enough to ensure that black children obtain an equitable education and thereby fully enjoy their constitutional rights and privileges. bi-dialectal programs for aave speakers offer an opportunity to support black children who struggle the most with reading. a federal mandate funding a bidialectal program ought to serve not only as a remedy for academic also national assessment of adult literacy, national center for education statistics, https://nces.ed.gov/naal/kf_demographics.asp#2, (last visited feb. 18, 2019) (finding that 30 million adults are reading on a below basic level). 169 see san antonio indep. sch. dist. v. rodriguez, 411 u.s. 1, 37 (1973) (finding that education is not a fundamental right or liberty). 170 see brown v. bd. of educ., 347 u.s. 483, 493 (1954) (noting that “education is perhaps the most important function of state and local governments”). 171 mark a. garber, the second freedmen’s bureau bill’s constitution, 94 tex. l. rev. 1361, 1387 (2016). 172 id. 173 williams, supra note 65, at 449 (noting that “[i]n response to growing concerns about black political empowerment, lawmakers pursued and received voter approval for a constitutional convention in 1901, the primary purpose of which was the disfranchisement of african americans”). no. 10:2] talking black 229 challenges, but also as a redress for the systemic, intentional, and generational injury of denying black children access to a quality education.174 a. current legal options are inadequate the current state of federal education statutes and common law are ill-equipped to address the linguistic challenges that black children experience when learning how to read. esea guarantees that all children have equal educational opportunities.175 the every student succeeds act of 2015 (“essa”) affirms this mandate to provide an equitable176 education for all children.177 the stated purpose of essa is to “ensure that every child achieves.”178 title i and title iii of essa are most relevant to addressing the unacceptable literacy rates of black children. nonetheless, essa does not create policy reforms or funding opportunities that recognize the challenges that black children experience as learners of standard english. first, title i seeks to improve the academic achievement of the disadvantaged.179 essa gives states and districts the flexibility to control accountability systems.180 title i still establishes expectations that states design standards and assessments that develop and 174 see span, supra note 54, at 69 (asserting that “every generation of african americans in the history of this nation has been systematically and intentionally denied the opportunity to learn on an equal basis”). 175 20 u.s.c. § 6301 (2015). 176 cook-harvey, supra note 167, at 1 (noting that “[a]n equitable system does not treat all students in a standardized way, but differentiates instruction, services, and resources to respond effectively to the diverse needs of students”). 177 every student succeeds act, 114 pub. l. no. 95 (2015) (reauthorizing 20 u.s.c. § 6301). essa is the federal education law that currently controls all public schools. 178 id. 179 id. § 1001. 180 20 u.s.c. § 6311 (2018). 230 columbia journal of race and law [vol. 10:2 evaluate higher-order thinking skills.181 while essa does not articulate specific policy reforms, many states have turned to standards-based curriculum with regards to english language arts. in 2009, state leaders launched an initiative to create uniform standards across core subject matters.182 forty-one states and the district of columbia have adopted common core standards.183 the emphasis on standards-based learning may increase the intellectual rigor of class instruction, but english language arts standards (e.g. theme, characterization, etc.) do not directly target issues with reading comprehension, particularly in secondary english classes.184 language arts and reading instruction are separate subject matters.185 in terms of funding, essa eliminates the school improvement grant program.186 title i, however, requires states to reserve 7% of its title i funding to serve the school improvement and support initiatives of high-need schools.187 targeting the linguistic barriers that most black children initially experience will require more funding than state reserves for school improvement measures.188 providing bi-dialectal 181 cook-harvey, supra note 167, at 2. essa does not define “higher-order thinking skills”; instead, it leaves states to define and develop their own standards. title i requires states to provide assurances that “the state has adopted challenging academic content standards and aligned academic achievement standards.” 20 u.s.c. § 6311. 182 common core state standard initiative: development process, http://www.corestandards.org/about-the-standards/development-process/ (last visited mar. 4, 2019). 183 id. 184 reading focuses on grammar, composition, and the ability to comprehend complex text. whereas, english language art encapsulates reading skills and also includes writing. secondary language arts “require students to analyze, interpret and dissect written material in order to compare, contrast and discuss elements, like theme, characters and plot.” teaching english and language arts, https://teach.com/careers/become-a-teacher/what-can-i-teach/ ela/ (last visited apr. 11, 2020). 185 id. 186 cook-harvey, supra note 167, at 18. 187 id. 188 kelley, supra note 57, at 138. thus far, title i funding for schools serving low-income children has been insufficient to offset disparities due to the complicated title i funding formula. no. 10:2] talking black 231 programs for aave speakers will require funding carved out for this specific purpose.189 the pervasive nature of the reading challenges that black children confront require specifically allocated remedies as repair for the legacy of anti-literacy laws.190 second, title iii of essa is particularly relevant because it addresses language instruction for english learners and immigrant students.191 thus, title iii should provide language instruction that could support aave speakers, as learners of standard english. the stated purpose of title iii is to “to help ensure that english learners, including immigrant children and youth, attain english proficiency and develop high levels of academic achievement in english” and to prepare english learners to enter “all-english” instructional settings.192 therefore, title iii targets children who do not speak the english language; it does not account for children who speak nonstandard dialects of english.193 title iii provides guidelines for states on creating language instruction programs. a non-regulatory guideline from the u.s. department of education states that reading and language arts 189 eloise pasachoff, two cheers for evidence: law, research, and values in education policymaking and beyond, 117 colum. l. rev. 1933, 1941–42 (2017). title i of essa imposes limited requirements for those schools that must develop school improvement plans due to the low achievement of students from disadvantaged subgroups (e.g. economically disadvantaged, racial/ethnic minorities, english language learners). title i provides schools under this circumstance with broad discretion: schools work with community stakeholders to develop an evidence-based intervention. therefore, specific funding allocated for bi-dialectal education programs is needed to ensure that such programs are implemented and standardized. 190 see, e.g., williams, supra note 65, at 466(evaluating the state of virginia’s brown fund act through the principles of reparations theory. williams concludes, under reparations theory, the brown fund act did not fully repair the harm caused by schools closing down rather than integrate in accordance with the supreme court’s decision in brown. williams argues that “the state's actions [closing schools] intentionally bore more heavily on black children. thus, a race-conscious remedy is not only permissible, but also essential”). 191 114 pub. l. no. 95, § 3102 (2015). 192 id. 193 id. 232 columbia journal of race and law [vol. 10:2 standards are not the same as english language proficiency standards.194 black children who speak aave speak the english language; however, they struggle with linguistic barriers when attempting to master reading and language arts standards for standard american english.195 furthermore, states may use title iii funding for technical assistance to implement effective language instruction educational programs.196 title iii allocates funding to states based on the population of students: 80% of funds are determined by the state population of english learners and 20% of funding is determined by the state population of immigrant children.197 therefore, title iii does not explicitly or implicitly factor the linguistic needs of aave speakers. instead, title iii erroneously assumes that non-standard varieties of english do not impact academic achievement, or that aave is not a legitimate dialect. as a result, title iii cannot currently provide remedies needed to improve the literacy rates of black children. finally, judicial remedies have limited capacity to advance wide-ranging and effective remediation. the decision of the u.s. district court of the eastern district of michigan in king v. ann arbor exemplifies the inability of the judiciary to create effective legal remedies that account for the educational challenges that black children encounter as aave speakers. in king v. ann arbor, also known as the “black english” trial, the court found that the ann arbor school district board violated §1703(f) of the equal 194 u.s. dep’t of educ., non-regulatory guidance: english learners and title iii of the elementary and secondary education (esea), as amended by the every student succeeds act (essa) (sept. 23, 2016), at 17. 195 see mills, supra note 131, at 568 (noting that children who do not make the switch from aave to standard english “face well-documented challenges to academic achievement in areas such as reading”). 196 id. at 18. 197 title iii—language instruction for english learners and immigrant students, national association of secondary school principals, https://www.nassp.org/policy-advocacy-center/resources/essa-toolkit/essafact-sheets/title-iii-language-instruction-for-english-learners-and-immigrantstudents/ (last visited mar. 4, 2019). no. 10:2] talking black 233 educational opportunity act of 1974 (“eeoa”) because the school board failed to “take appropriate action” to teach plaintiff children how to read standard english.198 plaintiffs were eleven black children who attended or had attended martin luther king jr. elementary and had all experienced reading difficulties.199 judge joiner asserted, “[a] child who does not learn to read is impeded in equal participation in the educational programs.”200 joiner found it was the teachers’ perception of the children who spoke “black english” that could impede plaintiffs from equally participating in reading instruction.201 joiner concluded, “[t]he instruction in standard english of children who use ‘black english’ at home by insensitive teachers who treat the children’s language system as inferior can cause a barrier to learning to read and use standard english.”202 as a result, the court mandated that the ann arbor school district board submit a plan including steps to help teachers at mlk elementary identify children who spoke “black english” and to use that knowledge to help students learn how to read standard english.203 the district developed a teacher-training project that compensated teachers for participating in twenty hours of instruction on the research of aave.204 the court found the district’s plan met the test of reasonableness and rationality.205 several factors in joiner’s decision should caution advocates from relying on judicial intervention as a means to instill 198 smitherman, supra note 143, at 555–56 (noting that the “‘black english case’ was about the struggles of single african american mothers for quality education for their children”). 199king v. ann arbor, 473 f. supp. 1371, 1373–74 (1979). 200 id. at 1377. 201 id. (finding that “[t]he research evidence supports the theory that the learning of reading can be hurt by teachers who reject students because of the ‘mistakes’ or ‘errors’ made in oral speech by ‘black english’ speaking children who are learning standard english. this comes about because ‘black english’ is commonly thought of as an inferior method of speech and those who use this system may be thought of as ‘dumb’ or ‘inferior’”). 202 id. at 1378. 203 id. at 1383. 204 smitherman, supra note 143, at 557. 205 king, 473 f. supp at 1390. 234 columbia journal of race and law [vol. 10:2 equitable reforms in schools. though a seminal case, judge joiner’s decision does not provide remedies for black children today. to begin with, joiner’s decision is limited in its jurisdictional reach. the intervention mandated by the court only applied to the eleven children, and the teacher training only applied to instructors at mlk elementary.206 additionally, the effectiveness of the teacher training project cannot be evaluated because only five children remained at mlk elementary when the court-mandated remedy was implemented during the 1978–1980 school years.207 even if the teacher-training project had been implemented, it likely would have been ineffective because the professional development project simply conveyed research on “black english.”208 lastly, judge joiner’s decision was flawed because it erroneously assumed that the plaintiff children knew how to speak standard english and simply spoke “black english” at home or in informal environments.209 in reality, it is very likely that children did not speak standard english.210 thus, joiner failed to acknowledge and account for the linguistic challenges at the root of the children’s reading struggles. his decision, incorrectly, focused only on the teacher perception of their student’s language.211 the structure of american schools not only devalues but also penalizes children who speak aave. 206 king, 473 f. supp at 1385. 207 smitherman, supra note 143, at 556. 208 id. at 557. 209 king, 473 f. supp. at 1376. to illustrate, judge joiner reasoned: “‘black english’ is a dialect of a segment of the black population and is used by them only a part of the time,” and that black people “may be quite capable of speaking eloquently in standard english and although they do speak standard english when talking to community outsiders.” 210 see newkirk, supra note 111, at 441 (finding that children acquire the language system to which they are exposed prior to age four. meaning, it is likely that plaintiff children only knew the language system of aave because it was the language they spoke in their households and community). 211 according to the new oxford american dictionary, language is the “method of human communication;” whereas linguistics is the “scientific study of morphology, syntax, phonetics, and semantics.” new oxford american dictionary (3rd ed. 2015). aave is an english language variety. therefore, when analyzing the linguistic challenges aave speakers, we reference the no. 10:2] talking black 235 nonetheless, king v. ann arbor is an important judicial decision because it sets a “socio-linguistic precedent” by recognizing that “black english” falls within the parameters of the statutory language of § 1703(f) of the eeoa.212 consequently, bi-dialectal programs are the best solution to rectifying the lack of equal educational opportunities for children who speak aave. while the eeoa has not yet been applied to compel the creation of bi-dialectal programs, it is the most promising option. the eeoa grew out of a 1974 lawsuit by students of chinese ancestry, who did not speak english.213 the plaintiffs claimed that the san francisco school system failed to provide english language instruction for approximately 1,800 students.214 in lau v. nichols, the supreme court ruled that san francisco violated § 601 of the civil rights act of 1964 by denying chinese-speaking students a “meaningful opportunity to participate in the education program.”215 the equal educational opportunities act of 1974 (“eeoa”) codified the supreme courts holding in lau.216 the eeoa provides, “[n]o state shall deny equal educational opportunities to an individual on account of his or her race, color, sex or national origin.”217 by its terms, the statute can be understood to require federal and state policymakers to address the linguistic challenges that lead aave speakers, who are primarily black, to struggle in school. specifically, it could require education policymakers to challenges black children confront when reading and writing in standard english. title iii of essa does not account for students who speak nonstandard dialects of english. it does provide a framework for developing bidialectal programs. 212 smitherman, supra note 143, at 557–58. 213 roger j. gonzalez, an equal educational opportunity for language minority students: a legal analysis of language education after lau 64–66 (nov. 05, 2002) (unpublished ph.d. dissertation, on file with the university of nevada las vegas). 214 lau v. nichols, 414 u.s. 563, 564 (1974). 215 id. at 568. 216 4 education law § 10d.01 bilingual education and limited english proficiency: educational opportunities and discrimination (2018). 217 id. 236 columbia journal of race and law [vol. 10:2 develop programs that explicitly aid black children in learning how to read, write, and speak standard english. b. bi-dialectal program for speakers of aave218 effective bi-dialectal programs should teach black children that their form of communication is part of a language system created by enslaved people. such a program should both articulate the practical reasons for learning standard english and transition students into reading and writing in standard english. clinical psychologist gary simpkins developed the bridge reading series, which relied on the associative bridge technique.219 simpkins specifically tailored the reading series for adolescents who spoke aave and were several grades behind in reading level.220 simpkins grounded the reading series in the african american rhetorical tradition—he wrote some of the stories while others were taken from the black folk tradition.221 the curriculum began with stories written in aave, then advanced to stories written in standard english. simpkins conducted a natural field test in five locations.222 the pilot study contained 417 students in an experi-mental group and 123 students in a control group, who were taught a standard reading curriculum.223 students taught using the bridge method had an average reading gain of 6.2 months over four months.224 students in 218 this note analyzes the history of anti-literacy laws and its impact on the development of aave. this note attempts to find solution to address the low literacy rates of black children in american public schools. therefore, this note will not evaluate bi-dialectal programs for other non-standard varieties of the english language, such as appalachian english, southern white english. argument for bi-dialectal programs could be made for those varieties. 219 smitherman, supra note 143, at 554. 220 id. 221 id. 222 id. 223 sharroky hollie et al., balancing pedagogy with theory: the infusion of african american language research into everyday pre-k-12 teaching practices, in oxford handbook of african american language 584 (sonja laneheart ed., 2015). 224 id. no. 10:2] talking black 237 the control group showed an average reading gain of 1.6 months.225 the results of this field study not only demonstrate the effectiveness of the bridge program, but also the ineffectiveness of traditional reading curriculum that instructs aave speaking children only in standard english. unfortunately, the publisher delayed and later cancelled the publication of the promising bridge series due to opposition from black school administrators and other members of the black elite class. the success of the kamehameha early education program (“keep”) in hawaii is another example of a successful bi-dialectal program.226 psychologist charlene sato’s advocacy led to federal funding supporting keep.227 keep proved to be a “highly success-ful bi-dialectal program” for native hawaiian children who spoke hawaiian pidgin english.228 c. concerns about implementation while bi-dialectal programs offer resources to directly address the linguistic challenges of aave speakers in school, legitimate concerns exist regarding such programs being used to 225 id. 226 id. researchers have also found that dialect readers in countries like sweden and norway have proven more successful as a pedagogical approach to teach dialect speakers the standard variety in comparison to teaching dialect speakers only in the standard variety. 227 john baugh, beyond bidialectalism, in oxford handbook of african american language 663 (sonja laneheart ed., 2015). 228 id. see also roland g. tharp, the effective instruction of comprehension: results and description of the kamehameha early education program, 17 reading research quarterly 503 (1982) (researchers evaluated the effectiveness of the keep program by conducting three experiments and finding: “(1) a successive-cohorts analysis demonstrated the keep program superior to a phonics-based program; (2) an experimental vs. control design demonstrated superiority of the keep-laboratory school program over matched public school controls; and (3) when installed in public school classrooms, the keep program was superior to control classrooms under conditions of random student assignment”). 238 columbia journal of race and law [vol. 10:2 perpetuate notions of white supremacy. disregarding concerns about the cultural integrity of aave can lead black children to experience language oppression and assimilation. there is a tension that comes with labelling black children learners of standard english, which could erode the legitimacy of aave as an english language variety. first, a question that arises is whether bi-dialectal programs operate as an additional academic burden for black children. such a program inevitably requires additional academic effort from black children. concerns about language assimilation that arose out of the bilingual education movement equally apply in implementing bidialectal programs as a pedagogical approach.229 the emphasis on language acquisition can function as a tool for language assimilation and therefore produce an oppressive learning environment for black children. in her autoethnographic article, lisa westbrook records her oppressive experience navigating the politics of language expression when she attended secondary school in rural michigan in the mid 1970s.230 westbrook felt a deep sense of isolation from her white teachers and peers who often taunted and teased her for speaking “poor english.”231 worn down by the social isolation, westbrook made the transition to standard american english: “i became very careful with every syllable that escaped my mouth.”232 as a result, assimilating to standard american english burdened westbrook by pressuring her to become hyper aware of the way she spoke. furthermore, learning standard american english as a means to escape social isolation in turn isolated westbrook from african americans who equated her manner of communication as “acting” white.233 consequently, implementing bi-dialectal programs will 229 for example, no child left behind (nclb) repealed the bilingual education act of 1968. nclb shifted the focus from bilingual education to solely english language acquisition. the later indicates a disregard for the native language of english language learners. 4 education law § 10d.01. 230 lisa westbrook, skooz be hat’in: my story navigating and negotiating standard american english, 3 pedagogy theatre oppressed j. 1 (2018). 231 id. at 8. 232 id. at 15. 233 id. no. 10:2] talking black 239 require funding to first train educators and school administrators on the history and the rules of grammar of aave. bi-dialectal programs should also acknowledge the cultural significance of aave. such program should not lead to intentional or inadvertent language erasure. second, federal, state, and local governments may be hesitant to implement and fund bi-dialectal programs because of the opposition that could arise with recognizing aave as an english language variety.234 most recently, the oakland “ebonics” controversy sparked backlash from black leadership. in 1996, the oakland unified school district issued a resolution recognizing “ebonics” as a “rule-governed language system” that required the oakland superintendent to implement the instruction of african american children in aave in order to facilitate the mastery of english language skills.235 oakland’s resolution received support from various linguistic and educational organizations.236 the resolution also drew ire from middle-class blacks.237 maya angelou stated that any “idea that african american[s] speak something other than english is very threatening. it could say to our young people that they don’t have to learn to speak properly.”238 furthermore, the secretary of education at the time, richard riley, opined that the bilingual education act (“bea”) would provide no funding for “black english” speakers239 riley believed that funding from the bea should only support non-native speakers of english.240 clearly, conversation about aave hit a sensitive nerve within the african american community in particular. similar to the 234 baugh, supra note 227, at 667–68. 235 smitherman, supra note 143, at 558–59. 236 id. at 559. those organizations included teaching english to speakers of other languages (tesol); american association for applied linguistics (aaal); conference on college composition and communication (cccc); center for applied linguistics (cal); california association for bilingual education (cabe); and the linguistic society of america (lsa). 237 baugh, supra note 227, at 666. it is likely that some of the opposition arose from the description of “ebonics” as “not genetically related to english.” 238 smitherman, supra note 143, at 558. 239 baugh, supra note 227, at 666. 240 id. 240 columbia journal of race and law [vol. 10:2 response of the bridge reading series, many from the black elite perceive aave as an illegitimate urban slang, much in the same way that negro spirituals were looked down upon by the newly freed african american community because of their history in the slave experience.241 in both the case of aave and negro spirituals, black respectability politics242 attempt to suppress the legacy of enslaved people in order to assimilate into euroamerican culture.243 research on educating speakers of nonstandard dialects makes apparent that the traditional approach of teaching aave speakers solely in standard american english will continue to fail black children. if the goal of federal and state education law is to ensure that every student has the opportunity to achieve,244 then respectability politics must be put aside to provide evidence-based pedagogical approaches that target the critical distinctions between aave and standard american english.245 the ability to speak standard english, or “code-switch,” is “necessary for 241 in 1871, the fisk jubilee singers went on tours and sang negro spirituals to raise money for fisk university. their efforts sparked a renewed admiration and preservation of negro spirituals. fisk jubilee singers, http://fiskjubilee singers.org/about-the-singers/our-history/ (last visited mar. 4, 2019). see generally the book of american negro spirituals 11–50 (james w. weldon & j. rosamond johns eds., 1925) (a collection preserving negro spirituals in written form (in aave) with piano accompaniments). 242 black respectability politics refers to a standard of behavior imposed on black people that conforms with the norms of the white, middle-class. enforced by the elite members of the black community, respectability politics admonishes behavior that could potentially prove the “truth” of negative stereotypes about black people. thus, practicing respectability involves “using standard english rather than african-american vernacular english in racially-mixed audience.” upward mobility is the objective of conforming to respectability politics. mikaela pitcan, alice marwick & danah boyd, performing a vanilla self: respectability politics, social class, and the digital world, 23 j. computer-mediated commc’n 163–166 (2018). 243 smitherman, supra note 143, at 552 (noting that opposition to language education programs by the african american middle class and elite leadership exposes “a master narrative of class conflict in the black community”). 244 114 pub. l. no. 95. (2015). 245 smitherman, supra note 143, at 552–53. no. 10:2] talking black 241 academic achievement because of the predominant use of a single code in the written and spoken contexts of schooling.”246 v. conclusion much scholarship has been devoted to understanding the literacy rates of african american children from a structural and institutional level. education scholarship is typically devoted to exploring how a lack of access to educational opportunities impairs the academic achievement of african american children.247 focusing only on access to educational opportunities opens the door for a dangerous insinuation—african american children are inherently intellectually inferior, given their free access to educational institutions today. this note seeks to expand the conversation on what equity ought to look like in the movement for education reform. the scholarship on education reform must first contend with the history of anti-literacy laws and how the ramifications of this history impact the literacy rates of black children today. efforts to reform school funding and the pedagogy that students engage with are also essential. black children need a comprehensive pedagogical approach to overcome the linguistic and academic challenges they encounter in school. the inability to read or even speak standard american english leads to negative implications for black children. the trial of george zimmerman for the murder of trayvon martin is an illustrative example. rachel jeantel was the prosecution’s key witness during the 2013 trial of george zimmerman for the 246 mills & washington, supra note 131, at 566–76 (defining code-switching as “the systematic, alternative use of two or more linguistic codes”). 247 see duncan-andrade & morell, supra note 88, at 7 (arguing for a double investment approach to reforming urban education: her: preparation to confront the conditions of social and economic inequity in their [urban youth[ daily lives and access to the academic literacies (computational and linguistic) that make college attendance a realistic option”); kelley, supra note 57, at 137–38 (citing a 2013-2014 finding from the united states department of education’s office for civil rights that “state and local governments' reliance on property tax revenue for school funding…systemically results in the allocation of less monies to high-poverty schools that have a higher proportion of students of color”). 242 columbia journal of race and law [vol. 10:2 murder of 17-year-old trayvon martin.248 jeantel, 18 at the time, was on the phone with martin just before zimmerman made his fatal shots.249 thus, jeantel could attest to martin’s state of mind as he interacted with zimmerman. however, social commentators vilified jeantel’s character and discredited her testimony because she spoke aave.250 florida state attorney bernie de la rionda exemplified difficulties understanding critical aspects of jeantel’s testimony:251 dee dee: he say he lost him . . . breathin’ har’, you know. and i like, he goin’…so he say he lost him. and then a couple…and then he say he right by his ass…he ru’, he go’ keep ru’ ’til hi’ dad house. bdlr: ok, let me make sure i understand that he’s saying that he’s “right by his ass”…meaning the guy is right by trayvon? dee dee: no, he say he lost the guy… bdlr: ok. stigmatizing aave as urban slang, commentators called jeantel “stupid,” “dumb,” and “hood” because of the way she 248 george zimmerman was charged with second-degree murder for trayvon martin; he was eventually acquitted. see, e.g., john r. rickford & sharese king, language and linguistics on trial: hearing rachel jeantel (and other vernacular speakers) in the courtroom and beyond, 92 linguistic soc’y am. 948 (2016). 249 see, e.g., jelani cobb, rachel jeantel on trial, the new yorker, https://www.newyorker.com/news/news-desk/rachel-jeantel-on-trial (june 27, 2013). 250 rickford, supra note 248, at 950–51. 251 in this transcript, “dee dee” refers to jeantel. johnrickford.com, jeantel transcript, http://johnrickford.com/writings/aave-in-the-news/jeantel-transcript (last visited apr. 11, 2020). no. 10:2] talking black 243 spoke.252 even worse, none of the jurors mentioned jeantel’s critical testimony during jury deliberation.253 jeantel was a native speaker of aave254 and had not learned the ability to “code-switch.”255 more accurately, she had not been taught how to code-switch. jeantel’s inability to speak standard english illustrates an alarming reality that black children from marginalized communities can spend thirteen years of schooling without learning standard english. furthermore, the failure to teach jeantel how to speak standard english, and therefore address her linguistic barriers, inevitably contributed to low academic outcomes. at the time of the trial jeantel was reading on a fourth-grade level, implicating the failure of the american school system to effectively educate black children.256 jeantel was a rising senior at miami norland senior high school. in the 2010–2011 academic school year, when jeantel would have been in tenth grade, only 13% of tenth grade students at miami norland senior high school scored satisfactory or above on the state’s reading assessment.257 252 see, e.g., rickford, supra note 248, at 957; alexander abad-santos, my star witness is black: rachel jeantel’s testimony makes trayvon a show trial, the atlantic (june 27, 2013), https://www.theatlantic.com/national/ archive/2013/06/rachel-jeantel-testimony-trayvon-martin-trial/313792/. 253 in a tv interview, one of the six jurors stated, “[jeantel’s] testimony played no role whatsoever in their decision.” rickford, supra note 248, at 950. 254 id. at 957, 970 (after analyzing sixteen hours of her testimony, rickford concluded that jeantel’s speech “is neither ‘inarticulate’ nor ‘incoherent’, but a systematic exemplification of the grammar of aave, with some resemblances to, if not influences from, cce [caribbean creole] varieties”). 255 mills & washington, supra note 131, at 566–76. 256 krissah thompson & lonnae o’neal parker, for trayvon martin’s friend rachel jeantel, a ‘village’ of mentors trying to keep her on track, wash. post (june 4, 2014), https://www.washingtonpost.com/lifestyle/style/ forrachel-jeantel-travyon-martins-friend-the-journey-continues/2014/06/04/ 0135d5a2-ec11-11e3-93d2-edd4be1f5d9e_story.html?noredirect=on&utm_ term=.ccb71da09223. 257 miami norland’s scores for that year fell well below the district and state average (39% of students within the district and 40% of students in the state received a score of satisfactory or above). florida department of education, miami norland senior high school public accountability report, 244 columbia journal of race and law [vol. 10:2 if language is the house of being,258 then black speakers of aave will inherently struggle to exist in a setting that presupposes acquisition of standard english. more importantly, the hostility and vitriol that rachel jeantel experienced as she testified on behalf of her deceased friend sheds light on how speakers of aave are penalized in judicial and educational settings. http://doeweb-prd.doe.state.fl.us/eds/nclbspar/year1112/nclb1112.cfm? dist_schl=13_7381 (last visited jan. 11, 2019). 258 martin heidegger, letter on humanism, 217 basic writings (david f. krell ed. 1978). columbia journal of race and law vol. 12 july 2022 no. 1 replacing cps: issues in buidling an alternative system michael s. wald i. introduction.......................................................................................713 ii. parenting and child welfare ............................................................716 a. the need for cps: protecting a child’s current physical and mental safety. .....................................................................717 b. protecting and promoting the child’s basic physical, social-emotional, and academic development. ........................718 iii. current efforts to reduce the reach of cps ....................................721 a. differential response .................................................................721 b. voluntary prevention and treatment programs ......................722 iv. towards a new system .....................................................................723 a. families with newborns and young children ..........................723 b. older children ...........................................................................725 v. moving forward ................................................................................727 a. resources ...................................................................................728 b. service coordination ..................................................................729 c. quality control: multiple models v. limited number of evidence-based programs .........................................................730 d. capable personnel .....................................................................731 vi. community control...........................................................................732 vii. conclusion .........................................................................................733  jackson eli reynolds professor of law stanford law school. i wish to thank rhiannon bronstein for her outstanding research assistance. 2022] replacing cps 713 i. introduction in the united states, child rearing has always largely been considered the right and province of parents. given this value preference, government agencies theoretically have a very limited legal role in regulating and monitoring child rearing; there is no formal government oversight of parenting unless a parent’s behavior falls below a standard that is considered abuse or neglect (maltreatment).1 yet, over the past fifty years, the reach of the child protection system (“cps”) has expanded enormously.2 beginning in the late 1960s, prompted by the identification of “battered child syndrome,”3 all states established mandatory child abuse reporting laws, which focused on situations involving physical harm to children.4 in the early 1970s, child protection agencies investigated several hundred thousand reports of maltreatment each year.5 overtime, reporting laws were continually expanded to cover more and more situations, “with the ‘discovery’ of sexual abuse in the late 1970s, the impact of the ‘crack epidemic’ in the late 1980s, . . . a new focus on domestic violence and educational neglect in the 1990s,” and the “opioid crisis” in the 2000s.6 today the level of cps involvement with families has reached staggering proportions. cps agencies investigate more than 2.5 million families with over 3.5 million children each year, over seven percent of all families with children.7 more than one-third of all children have been investigated by cps at least once by age eighteen;8 one in eight have a confirmed case.9 as dorothy roberts was among the first to recognize, the 1 some forms of deference to parents may be constitutionally protected. see frank vandervoort, the law and policy of maltreatment, in handbook of interpersonal violence and abuse across the lifespan, 1, 4–6 (robert geffner et al. eds., 2020). 2 child protection systems are the creation of states and basically subject to state laws. however, there are numerous federal laws that offer funding to states to use for cps activities provided that the states adopt policies enumerated by federal law; thus, federal laws have a significant impact on state policies. the issues discussed herein need to be addressed at both the federal and state levels. see michael s. wald, new directions for foster care reform, 68 juv. & fam. ct. j. 7, 10 fig.1 & n.9 (2017) [hereinafter wald, new directions] (summarizing federal legislation). 3 c. henry kempe et al., the battered child syndrome, 181 j. am. med. assoc. 17 (1962) (defining battered child syndrome, a condition affecting children who have faced serious physical abuse). 4 leonard brown iii & kevin gallagher, mandatory reporting of abuse: a historical perspective on the evolution of states’ current mandatory reporting laws with a review of the laws in the commonwealth of pennsylvania, 59 vill. l. rev. 37, 41–42 (2014). 5 jane waldfogel, the future of child protection 7 (1998). 6 michael s. wald, taking the wrong message: the legacy of the identification of the battered child syndrome, in c. henry kempe: a 50 year legacy to the field of child abuse and neglect 89, 92 (richard krugman & jill korbin eds., 2013) (citations omitted). 7 these numbers are drawn from child. bureau, u.s. dep’t of health & hum. servs., child maltreatment 2018, at xiii ex. s–2 (2020) [hereinafter child maltreatment]. 8 hyunil kim et al., lifetime prevalence of investigating child maltreatment among us children, 107 am. j. pub. health 274, 278 (2017) [hereinafter kim et al., lifetime prevalence]. 9 hyunil kim & brett drake, cumulative prevalence of onset and recurrence of child maltreatment reports, 58 j. am. acad. child & adolescent psychiatry 1175, 1175 (2019) [hereinafter kim & drake, cumulative prevalence]. 714 colum. j. race & l. [vol. 12:712 risks of being reported and investigated are substantially higher for african american children: over half of african american children are reported to cps at some point in their childhood, and one in five have a confirmed maltreatment case at some point before their eighteenth birthday.10 this expansion has occurred despite the fact that the great majority of reports, even when they lead to investigations, do not lead to a substantiated finding of abuse or neglect or to active involvement by cps with the family.11 moreover, there is substantial evidence that cps throughout the country often performs very poorly when intervening with families.12 child development experts recognize that coercive state intervention, especially if it involves removal of a child from their family, is often harmful to the child, as well as the parents.13 over the past fifty years, there have been continuous efforts to improve federal and state policies related to state interventions to protect children and to the performance of cps (including efforts to reduce the scope of cps).14 more than twenty major pieces of federal legislation designed to improve various aspects of child protection systems have been passed.15 yet, there is consensus that cps throughout the country continue to function very poorly in a number of major respects.16 10 kim et al., lifetime prevalence, supra note 8, at 278; see also kim & drake, cumulative prevalence, supra note 9, at 1178; dorothy roberts, shattered bonds: the color of child welfare (2001) [hereinafter roberts, shattered bonds] (describing the overrepresentation of black children and families in the child welfare system). the increase in neglect reports is especially puzzling given the large declines in juvenile delinquency, births to teens, and the large increase in high school graduation rates over the past twenty years, all of which would seem to indicate that parenting has improved, not gotten worse. see charles puzzanchera, the decline in arrests of juveniles continued through 2019, off. of juv. just. & delinq. prevention (2020). 11 child maltreatment, supra note 7, at 6–8. see also elizabeth bartholet, creating a child-friendly child welfare system: effective early intervention to prevent maltreatment and protect victimized children, 60 buff. l. rev. 1321 (2012) (calling for better research on how and why children are screened out or kept at home despite reports of maltreatment). 12 there is a vast literature detailing these failures, many of which are discussed in the articles in this volume. 13 roberts, shattered bonds, supra note 10, at 91; michael s. wald, state intervention on behalf of neglected children: a search for realistic standards, 27 stan. l. rev. 985, 993–99 (1975) [hereinafter wald, state intervention]. 14 see, e.g., inst. of jud. admin. & a.b.a., juvenile justice standards project – standards relating to abuse and neglect – tentative draft (1977) (proposing a significant narrowing of the jurisdiction of cps and juvenile courts). the proposed standards were never adopted by the aba because of opposition from juvenile court judges, who favored broad discretion for intervention. see inst. of jud. admin. & a.b.a., juvenile justice standards project – standards relating to abuse and neglect 2, 9–13 (1981) (describing the desire for discretionary intervention and listing the revisions made to the 1977 tentative draft). 15 see wald, new directions, supra note 2, at 10 fig.1. 16 this consensus includes leaders in every discipline related to child welfare and among practitioners as well as academics. i will not review here the many problems, which are detailed in the introduction and many of the articles in this symposium. see also tom morton, the pernicious failure of child welfare reform, imprint (nov. 21, 2017, 5:00 am), https://imprintnews.org/child-welfare-2/pernicious-failure-child-welfare-reform/28708 [perma.cc/9xm3-z7an] (arguing that “[c]hild welfare agencies as currently designed are predestined to fail”). 2022] replacing cps 715 spurred in part by the writings and activities of dorothy roberts, the united states appears ready for major child welfare reform. calls for change have come from a wide range of commentators, including many current and former child welfare agency leaders.17 many focus on reforming cps , with a particular focus on reducing the use of foster care.18 other commentators, including many in this symposium, believe that cps needs to be abolished entirely and replaced by a system of supportive services designed and controlled by local communities.19 on the other hand, there are some commentators who would expand the reach of cps.20 building on more than fifty years of work on reforming cps, this piece proposes that a new approach should be developed to help parents and protect children in the great majority of situations now referred to cps. while some level of coercive intervention, including placement in foster care, will remain necessary in some situations, the reach of the current system can and should be reduced by fifty to eighty percent immediately without jeopardizing the safety of these children.21 most of these families, however, do need some state outreach and support. reducing the role of cps should not reduce efforts to help parents who are unable to promote for the basic emotional and social development of their children. as dorothy roberts recognizes, abolishing or greatly reducing the reach of cps is not an end in and of itself; the end goals of government policies and programs should be creating conditions that will enable all children to have safe and supportive childhoods and to acquire the skills needed for basic emotional, social, and academic skills.22 this piece proposes an alternative approach for addressing the needs of parents and protecting the safety and development of children in 17 see, e.g., thomas morton & jess mcdonald, america must change its view of poverty and neglect, imprint (feb. 15, 2021, 7:00 pm), https://imprintnews.org/childwelfare-2/america-must-change-its-view-of-poverty-and-neglect/51659 [perma.cc/qb4a85js] (advocating for child welfare reform that distinguishes between poverty and neglect); jerry milner & david kelly, it’s time to stop confusing poverty with neglect, imprint (jan. 17, 2020, 5:12 am), https://imprintnews.org/child-welfare-2/time-for-child-welfare-systemto-stop-confusing-poverty-with-neglect/40222 [perma.cc/dm48-3nuf] (arguing that the child welfare system should distinguish between neglect, which may justify removal, and poverty, which should never alone justify family separation); josh gupta-kagan, towards a public health legal structure for child welfare, 92 neb. l. rev. 897 (2014) (advocating for a public health model to replace the current system). 18 see, e.g., casey family programs, first-of-its-kind national partnership aims to redesign child welfare into childand family well-being systems (sept. 9, 2020), https://www.casey.org/thriving-families-safer-children/ [perma.cc/25bc-nykr] (describing an effort to reform child welfare “by creating the conditions for strong, thriving families where children are free from harm”). 19 this position is supported by dorothy roberts, who has been a leader in arguing for abolition. see ‘abolition is the only answer’: a conversation with dorothy roberts, rise (oct. 20, 2020), https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [perma.cc/mab3-wgdz] (advocating for abolition of the child welfare system). 20 james g. dwyer, liberal child welfare policy and its destruction of black lives (2018) (arguing for a system with greater focus on child well-being and preventing an inter-generational cycle of poverty and trauma). 21 see child maltreatment, supra note 7, at 18–19 ex. 3–b (demonstrating that only 16.8% of children with screened in reports were classified as victims of maltreatment). 22 dorothy roberts, is there justice in children’s rights?: the critique of federal family preservation policy, 2 j. const. l. 112 (1999) (arguing that a reformed child welfare system must be based on a definition of children’s rights that centers social justice). 716 colum. j. race & l. [vol. 12:712 the great majority of situations that are now referred to cps agencies. it must be recognized that building a high-quality system of services is very challenging—just as it has been challenging to reform cps. virtually all past legislative reform efforts focused largely on policy and not enough on creating the elements necessary for successful implementation of a system of services.23 this failure contributed to the limited success of past efforts to reduce the role of cps and to limit out-of-home placement. a focus on the elements necessary for successful implementation needs to be central to any efforts to substantially change or abolish the current system. ii. parenting and child welfare most parents are committed to advancing their children’s wellbeing. still, some parents behave in ways that are harmful to their children and cause serious injuries, either intentionally or through failure to provide the type of care needed to prevent serious physical or mental harm to a child. other parents face substantial challenges in providing the types of care and interaction that are important to facilitating children’s basic emotional, social, and academic development.24 some form of state involvement is needed to protect the safety and/or development of the children in these families.25 however, it is well-established that state attempts to regulate, supervise, or monitor parental behavior can have detrimental effects on the children, as well as parents. in particular, there can be substantial costs to children and parents from investigating parenting and imposing services on families against their will.26 thus, policy makers must determine what types of state actions/programs are best suited to address situations where the safety or development of a child is threatened or compromised by the behavior(s) of a parent. i have long argued that involuntary or coercive intervention through cps should be restricted to situations that pose an immediate threat of serious harm to a child, such as sexual conduct with a child, actions causing severe physical injury, or substantial emotional abuse. such cases may require involuntary monitoring and supervision of the 23 see wald, new directions, supra note 2, at 12. this was especially true regarding the two major federal laws on child protective service systems. see also adoption assistance and child welfare act of 1980, pub. l. no. 96-272, 94 stat. 500; adoption and safe families act of 1997, pub. l. no. 105-89, 111 stat. 2115. i was involved in the drafting of major legislation at the federal and state levels, including the adoption assistance and child welfare act of 1980; the indian child welfare act of 1978, 25 u.s.c. §§ 1901–63; and major legislation in california, and i have studied the implementation of these statutes. 24 by “basic,” i mean a level of emotional, social, and academic development that is generally needed in order to earn an adequate income and engage in meaningful relationships during adulthood. see comm. on supporting parents of young child. et al., parenting matters: supporting parents of children ages 0–8, at 45 (heather breiner et al. eds., 2016) [hereinafter parenting matters] (analyzing parental attitudes and knowledge to better understand what is best for child development). 25 see michael s. wald, beyond maltreatment: developing support for children in multiproblem families, in handbook of child maltreatment 251, 251–52 (jill korbin & richard krugman eds., 2014) [hereinafter wald, beyond maltreatment]. 26 ctr. for improvement of child & fam. servs., reducing the trauma of investigation, removal, & initial out-of-home placement in child abuse cases, portland state univ. 4, 10 (2009). 2022] replacing cps 717 family.27 however, most reports to cps involve parents who, for a variety of reasons, face difficulties in meeting the physical or health needs of their children or in providing minimally consistent and stable parenting. this parenting is problematic in that it can negatively impact the child’s current well-being and future development, but it should be addressed in a very different manner than parental behaviors that require involuntary intervention through cps because of the nature of the behavior and the seriousness of the harm to the child. a. the need for cps: protecting a child’s current physical and mental safety. protecting children from serious physical or mental harm often requires actions against the parent’s will, including reporting the parent’s behavior, investigating the child’s home environment, requiring parental participation in services, and possibly removing the child from the home. these situations require special legal authority and the powers and skills that well-trained cps personnel should have, such as conducting investigations and working with courts. this requires an organization with very different structures, personnel, and resources from those that are likely to be best for working with parents through voluntary services. some proponents of limiting the reach of cps divide the need for cps in terms of abuse versus neglect, proposing that cps be limited to cases of “abuse” and that situations involving “neglect” be handled by another system.28 this is not a sensible distinction. the terms “abuse” and “neglect” have no agreed-upon meaning29 and do not capture the nature of harm to a child—more children die from “neglect” than “abuse.”30 cps jurisdiction should be defined in terms of harms to children caused by parental behaviors, not on labels that are vague or meaningless.31 the types of parental behaviors that cause or threaten serious imminent harm are reasonably clear. they include 1) directly inflicting serious physical injury on the child or behaving in ways that pose a substantial risk of causing such injury; 2) consistently exposing the child to conditions or situations that carry a substantial risk of causing serious physical injury or threaten the child’s mental health (this includes failing to provide medical care to treat or prevent such harm); and 3) committing sexual acts with or on the child or exposing the child to conditions or situations that carry a substantial risk of other adults committing such acts. beyond 27 i would still largely define state jurisdiction in terms of the categories of harms described in wald, state intervention, supra note 13, at 1005–36. 28 see, e.g., morton & mcdonald, supra note 17. 29 sarah font & kathryn maguire-jack, the scope, nature, and causes of child abuse and neglect, 692 annals am. acad. pol. & soc. sci. 26, 27–29 (2020) [hereinafter font & maguire-jack, scope, nature, and causes]; child welfare info. gateway, dep’t of health & hum. servs., definitions of child abuse and neglect (2019) (describing various definitions of child abuse across federal and state law, civil and criminal); rebecca rebbe, what is neglect? state legal definitions in the united states, 23 child maltreatment 303 (2018) (comparing state statutory definitions of neglect). 30 child welfare info. gateway, dep’t of health & hum. servs., child abuse and neglect fatalities 2019: statistics and interventions 5, fig.2 (2021). 31 see wald, state intervention, supra note 13, at 1000–04. 718 colum. j. race & l. [vol. 12:712 causing current harm, experiencing these types of parental conduct also impairs the future development of many children.32 while there may be a continuing need for an agency that has the right to intervene coercively into families, only a small percentage of the situations currently referred to cps involve harms that may require investigation and monitoring and even fewer require on-going agency involvement. at most, between ten and twenty percent of the 3.5 million children whose families are investigated by cps are threatened by parental behaviors that have caused or have a high potential of causing serious physical or emotional injuries.33 the absence of a current and ongoing significant threat to the child’s physical or mental safety in most situations reported to cps is reflected in the fact that cps agencies do not seek to deal directly with, or require involuntary oversight of, the family in between eighty and ninety percent of the cases reported to and screened in by the agencies.34 the great majority of cases are either handled through differential response (“dr”), which offers parents voluntary access to services, or closed completely.35 moreover, in the twenty percent of cases for which cps has made a finding of maltreatment (substantiation), only half result in formal supervision of the family.36 less than five percent of reported children are brought under court supervision, indicating that the agency sees a need for mandated supervision of the family.37 thus, cps agencies determine that no formal cps involvement is needed in more than ninety percent of screened in cases.38 b. protecting and promoting the child’s basic physical, social-emotional, and academic development. is cps involvement needed in the eighty percent of screened in reports that are now diverted or closed? unfortunately, there is limited research describing the nature and scope of the harm in most of these situations. as just discussed, the fact that these cases are closed or referred to some form of alternative response indicates that cps workers do not see these as situations posing the risk of serious, imminent injury.39 these judgements are supported by the findings of several recent studies applying sophisticated risk assessment tools.40 32 see cathy spatz widom, the longterm consequences of child maltreatment, in handbook of child maltreatment 225 (jill korbin & richard krugman eds., 2014) (describing the potential long-term consequences of child maltreatment). 33 precise estimates are not possible since there is no consistency in the way data are collected or reported. 34 child maltreatment, supra note 7, at 18–19 ex.3–b. 35 id. 36 id. at xiii ex.s–2. 37 id. at 19, 71 (finding that of the seventeen percent of children found to be victims of maltreatment, only twenty-nine percent had court actions). 38 in essence, cps agencies now function mostly as screening, investigation, and referral systems, plus overseeing foster care placements. 39 some commentators argue that too many are screened out. see, e.g., bartholet, supra note 11, at 1323–24. cps agencies clearly make mistakes, often tragic mistakes. these cases receive great attention but are very rare. 40 studies in allegheny county, pennsylvania and los angeles, california have found that the vast majority of cases reported to cps in these jurisdictions do not have foster care placement in the two years following the report and most do not have new referrals. alexandra chouldechova et al., a case study of algorithm-assisted decision making in 2022] replacing cps 719 the best available studies indicate that the majority of these situations involve parents challenged, for a variety of reasons, in providing adequate physical or emotional care to one or more of their children.41 most commonly, these are families in which one or both of the parents struggles with substance use and/or where there is a persistent situation of domestic violence (in many states, these may be mandated reporting situations). often, they involve single caretakers struggling with deep poverty, which may lead to erratic caretaking. these parents may be loving and even committed, but they may be unable to provide consistent physical or emotional care. many of these children already evidence developmental delays or are likely to experience academic, emotional, or social problems as they age. these include physical and/or mental health problems, higher rates of disruptive behavior at school, more delinquent behavior, and lower rates of completing high school than children of comparable backgrounds who are not reported to cps.42 while some form of active attention by the state is needed in order to protect and promote these children’s basic well-being, this should not be through cps. there are several compelling reasons why states should reduce the role of cps and develop more and better alternative approaches to help these families. first, cps agencies do not have the resources to deal effectively with situations posing current or imminent severe harm, let alone the millions of referrals that are closed or diverted to alternative services.43 this has been true for the past fifty years. second, cps is not designed to provide the types of services and support needed by most families now being screened out or handled child maltreatment hotline screening decisions, 81 proc. mach. learning rsch. 1, 3 (2018); child. data network et al., california child welfare predictive risk model proof of concept, ctr. for soc. data analytics (june 2018), https://csda.aut.ac.nz/research/ourprojects/2018/california-child-welfare-predictive-risk-model-proof-of-concept [perma.cc/xn5c-wp9r]. 41 despite the extensive literature discussing the factors associated with reported cases of abuse or neglect, it is very hard to get a clear picture of the actual parental behaviors in most cases, even those that have been fully investigated. available data and research provide very little detail. for a general picture of these difficulties, see laura j. proctor & howard dubowitz, child neglect: challenges and controversies, in handbook of child maltreatment 27 (jill korbin & richard krugman eds., 2014). see also font & maguirejack, scope, nature, and causes, supra note 29 (recognizing the various definitions of child maltreatment that cover a range of parental activity); wald, beyond maltreatment, supra note 25 (calling for an outcome-focused framework of maltreatment that distinguishes between specific parenting behaviors). 42 see richard barth et al., inst. for soc. & econ. dev., developmental status and early intervention service needs of maltreated children (2008) (studying the developmental concerns of children receiving child welfare services); cecilia casanueva, theodore p. cross & heather ringeisen, developmental needs and individualized family service plans among infants and toddlers in the child welfare system, 13 child maltreatment 245 (2008) (examining the developmental needs of children investigated by child protective services); sara font & kathryn maguire-jack, it’s not “just poverty”: educational, social, and economic functioning among young adults exposed to childhood neglect, abuse, and poverty, 101 child abuse & neglect 104356 (2020) (noting that developmental outcomes for children with alleged or confirmed neglect cases were worse in all domains than for impoverished children without maltreatment allegations). 43 michael s. wald, preventing maltreatment or promoting positive development— where should a community focus its resources?: a policy perspective, in preventing child maltreatment 182, 186 (kenneth a. dodge & doriane lambelet coleman eds., 2009). 720 colum. j. race & l. [vol. 12:712 through dr. in general, these parents are caring but are struggling to consistently provide adequate physical care to a child (and often self-care) or are having trouble coping positively with a child’s behavioral problems. while a portion are onetime or easily remedied situations, many are more chronic. the majority of these parents have unaddressed or inadequately addressed mental health conditions or substance-abuse problems and/or are experiencing domestic violence (which in many states are grounds, in and of themselves, for reporting and investigation). of equal or greater importance, an estimated eighty-five percent of families investigated by cps have incomes below 200% of the federal poverty line,44 which produces a variety of poverty-related stressors—like unstable housing and employment, violent neighborhoods, and inadequate schools. cps agencies generally do not deliver, or control access to, the treatment resources needed by the parent, and most cannot provide the economic aid or access to housing that many of these families need.45 it is not surprising that the evidence, although limited, indicates that becoming known to cps does not lead to improved parenting in most families or to improved well-being for most children.46 if the u.s. had adequate income support, referrals to cps would undoubtedly decline.47 finally, not enough is known about the relationship of parenting to specific developmental outcomes, or the impact of interventions as a means of achieving these outcomes, to justify coercive interventions unless the situation poses a threat of imminent harm. the fact that over fifty percent of all african american children and over thirty percent of all children are reported to cps at some point during their childhood raises a fundamental question about the way our society uses cps. there is no indication that such a large percentage of children experiences the type of serious physical or emotional harm that the system was designed to address. rather, it appears that the large number of reports is driven by the breadth and vagueness of reporting laws and by mandatory reporters and family members who look to cps as the only 44 leroy h. pelton, the continuing role of material factors in child maltreatment and placement, 41 child abuse & neglect 30, 31–32 (2016). 45 family and child well-being system: economic & concrete supports as a core component, chapin hall at the univ. of chi. (apr. 2021) (analyzing available resources to combat poverty, maltreatment, and abuse of children). in some of these situations, it is the parent who contacts cps as the only way to get services for a child with significant mental health or behavioral problems that the parent is having trouble handling. 46 richard barth et al., outcomes following child welfare services: what are they and do they differ for black children?, 14 j. pub. child welfare 477 (2020) (recognizing that child welfare services might create worse outcomes for children, particularly children of color); abraham b. bergman, child protective services has outlived its usefulness, 164 archives pediatric adolescent med. 978 (2010) (finding that children investigated by child protective services were not perceptively different than non-investigated children in social support, family functioning, poverty, maternal education, or child behavioral problems). 47 several studies have found that relatively small increases in income can reduce maltreatment reports by as much as ten percent. maria cancian, mi-youn yang & kristen shook slack, the effect of additional child support income on the risk of child maltreatment, 87 soc. serv. rev. 417, 429–30 (2013); kerri raissian & lindsey rose bullinger, money matters: does the minimum wage affect child maltreatment rates?, 72 child. & youth servs. rev. 60, 60 (2017) (finding that a one dollar increase in the minimum wage creates a 9.6% decrease in neglect reports). 2022] replacing cps 721 place to get help in situations where a parent is struggling to provide adequate care due to poverty or to personal challenges like depression or substance use.48 moreover, despite years of efforts, most cps departments still struggle to integrate the policing and service roles, which are generally conflicting. the possibility of family separation when cps is involved engenders acute fears among many parents. mandatory referrals to cps by professionals often strain relationships between families and the service providers reporting them, thus resulting in a reduction of needed services.49 as a result, cps does not have the type of community support and confidence needed to effectively work with large numbers of parents in these communities. a new approach is essential. while intervention through cps is inappropriate, and often counter-productive, in the eighty percent of screened in reports that are now diverted or closed, there is a need for some state involvement with these families if the children are to achieve the outcomes identified above. the issue is what should replace cps. iii. current efforts to reduce the reach of cps in the past twenty years, a number of states and local governments have developed policies and programs designed to reduce the role of cps. there are two main approaches. one, differential response (“dr”), tries to engage parents referred to cps in services on a voluntary basis, without formal investigation or court involvement. the second approach, on the other hand, focuses on the development of parenting programs available to all parents, not just those referred to cps. the hope is that providing such services will help parents engage in positive behaviors and reduce harmful behaviors that could lead to cps involvement.50 a. differential response based on assumptions that coercive supervision by a cps worker is not needed in many situations reported to cps, and that a less hostile approach will lead to more family cooperation, at least twenty states have adopted a “quasi” cps approach for dealing with a portion of the families referred to cps.51 under this approach, referred to as differential response or dr, reported cases that involve less risky situations are referred to a disparate group of community agencies that can provide “voluntary” 48 kelley fong, getting eyes in the home: child protective services investigations and state surveillance of family life, 85 am. sociological rev. 610, 611 (2020); guptakagan, supra note 17, at 897 (finding that overly broad definitions of “abuse” and “neglect” expand the scope of mandatory reporting and thereby increase surveillance and intervention). 49 kelley fong, concealment and constraint: child protective services fears and poor mothers’ institutional engagement, 97 soc. forces 1785 (2021) (describing how fear of cps reports motivates poor mothers to avoid mandatory reporters, who are often vital support systems for disadvantaged families). 50 many of these programs are described in parenting matters, supra note 24, at 125 (describing universal, preventive interventions that emphasize providing parents with knowledge and guidance concerning child development and best parenting practices); id. at 229 (describing evidence-based and evidence-informed interventions targeted at specific populations of interest). 51 differential response in child protective services, nat’l conf. of state legislatures (dec. 15, 2019), https://www.ncsl.org/research/human-services/statelegislation-differential-response.aspx [perma.cc/4bjg-s942]. 722 colum. j. race & l. [vol. 12:712 services wanted by the parents. these services vary greatly in availability, quality, and effectiveness.52 while the evidence indicates that dr does not create an increased risk to children’s safety, it is generally minimally helpful to families needing significant support.53 dr programs have limited funding and are not designed to provide intensive, long-term services to families when these are needed.54 in many jurisdictions, little or no service provision occurs because parents do not deem the available services useful or are reluctant to engage in services that they associate with cps. most critically, dr does not create a coordinated system, which would require a dedicated funding stream, clear criteria for who is served, and mandates regarding outcomes.55 it is unrealistic to assume that most cps agencies, which are routinely challenged in providing adequate services to the children under supervision, will have the capacity to effectively organize and monitor an effective set of community services. b. voluntary prevention and treatment programs a second approach works to develop “prevention” services, like home visitors, especially for families with newborns and young children. over the past twenty years, the federal government has funded and evaluated a number of such efforts, especially home visiting programs designed to assist new parents.56 some of these programs have helped participants avoid behaviors that would be subject to a cps report and, more importantly, have improved long-term developmental outcomes for children.57 the evidence is mixed, however, and the programs fail to reach a significant portion of families.58 moreover, these programs are not an alternative when parenting has already become problematic and possibly subject to a cps referral. while many communities have a variety of health and social service programs that are designed to promote positive parent-child interactions and to help parents experiencing difficulties with parenting, most of these programs have little or no outreach; parents must seek them out, and there are indications that the highest risk parents do not seek out these services.59 disparities in access to these programs, often shaped by race and class, mean that a disproportionate number of minority and poor families receive distinctly fewer and often more punitive service options. no state or community provides these types of services in a systemic 52 there is a debate regarding the utility and practice of dr, which has been implemented in highly variable ways in different states. cf. tamara fuller, beyond investigations: differential response in child protective services, in handbook of child maltreatment 443 (jill korbin & richard krugman eds., 2014) (describing dr and its variations and highlighting how dr differs from the traditional approach); bartholet, supra note 11, at 1333–38. 53 bartholet, supra note 11, at 1337–38. 54 id.; caitlyn garcia & cynthia godsoe, divest, invest & mutual aid, 12 colum. j. race & l. __ (2022) (arguing that underfunding sets dr programs up for failure). 55 deborah daro & genevieve benedetti, sustaining progress in preventing child maltreatment: a transformative challenge, in handbook of child maltreatment 281, 295 (jill korbin & richard krugman eds., 2014). 56 see supporting parents et al., universal interventions, supra note 50; supporting parents et al., targeting interventions, supra note 50. 57 supporting parents et al., universal interventions, supra note 50, at 141–55. 58 id. 59 parenting matters, supra note 24, at 326–29. 2022] replacing cps 723 manner that integrates the various approaches, examines community needs, and makes funding priorities based on those needs. iv. towards a new system in order to significantly reduce the reach of cps while protecting the safety and basic development of children, there is a need for an alternative service system that serves a dual role. first, services should help parents avoid behaviors that impair the emotional, social, and academic development of their children. second, services should provide an alternative set of responses in situations where parents engage in problematic behaviors. while such a system should not have the coercive powers of cps, it should include active outreach, screening, and some monitoring of parental conduct, not just provision of services to parents who seek help. it also requires a way to track families’ development, the services they seek and receive, and the results of those services. an effective system requires performance standards, accountability measures, regular monitoring, and consistent data collection and evaluation.60 given the long history of failure in designing and implementing systems that actually deliver the services families need, it is essential that advocates think through what an alternative approach or system should look like and the issues involved in implementation. the following sections outline possible models and then look at a number of implementation issues. the goal is to generate thinking about the possible structures and elements of new approaches that focus on strengthening the role of multiple community organizations, not just government agencies.61 the discussion looks separately at alternatives for families with young children and approaches to helping families with older children, based both on the fact that the needs of parents and children differ depending on the age of the child and the fact that there are many more resources and models in place for helping parents with young children than with school-age children.62 a. families with newborns and young children over the past ten years, a small number of communities have attempted more comprehensive approaches to helping parents of newborns and young children develop the skills and access the support needed to promote the safety and development of the child.63 in a few jurisdictions, these approaches also include efforts to identify situations when the parent may need additional services in order to provide adequate parenting. the most developed approach is family connects (“fc”) in north 60 arthur j. reynolds, developing early childhood programs for children and families at risk: research-based principles to promote long-term effectiveness, 20 child. & youth servs. rev. 503, 511–12 (1998). 61 this idea has roots in the framework offered by the u.s. advisory board on child abuse and neglect in the 1990’s. u.s. advisory bd. on child abuse & neglect, u.s. dep’t of health & hum. servs., creating caring communities: blueprint for an effective federal policy on child abuse and neglect (1991) (noting that effective child welfare requires greater reliance on community efforts). 62 of course, many families have younger and older children. it will be necessary to develop approaches that enable these families to work in a single system. 63 the history of these efforts is discussed in deborah daro, a shift in perspective: a universal approach to child protection, 29 future child. 17 (2019). 724 colum. j. race & l. [vol. 12:712 carolina. fc includes three key elements that are necessary to a system that is both supportive to parents and protective for children.64 first, it includes universal outreach and assessment. fc tries to reach every family giving birth in its coverage area, aiming to identify family-specific risks and needs and then to connect each family with the community resources to meet those needs. the structure starts with home visiting, offered to all new mothers, typically at the birthing hospital. during the home visits, a home visiting nurse seeks to identify family needs or problems in parentchild relations utilizing a four-point standardized screening tool assessing risks. the nurse then connects the family with appropriate community resources, including strong, concrete efforts in higher risk situations to connect the parent with a community resource to resolve challenges to parenting that require professional treatment, such as substance abuse. second, fc includes data and monitoring, utilizing an electronic data system that acts as a family-specific psychosocial and educational record to document nurses’ assessments of mother and infant, as well as connections with community agencies. one month after the nurse terminates involvement with the family, fc staff telephone each family to find out whether they had successfully made a community resource connection. third, fc includes community alignment, an effort to assemble a coordinated system of all community resources available to families at birth, including childcare agencies, mental health providers, government social services, and programs for subgroups of families, such as healthy families, parents as teachers, and early head start.65 how can/should something like fc be implemented nationally, while allowing for local variation and community design? figure 1 shows a possible structure. figure 1. support system flowchart. 64 kenneth a. dodge & w. benjamin goodman, universal reach at birth: family connects, 29 future child. 41 (2019) (describing the three key elements of the family connects program in durham, north carolina). 65 id. at 47–50. as described in the article, fc developers have tried to ensure that the approach is sensitive to the concerns that some parents have over possible stigmatization and monitoring entailed in participation in the hv program. id. at 48–49. 2022] replacing cps 725 the structure is built around the four major national programs supporting parenting: the women, infants, and children program (“wic”), home visiting (“hv”), early head start (“ehs”), and head start (“hs”), supplemented by various evidence-based parenting programs for families needing more intense services. the system would begin during pregnancy. all pregnant women would receive health and economic support as needed and would be screened for significant adversities, such as substance use, within prenatal and obstetric care settings, including wic. following birth, all parents would be connected to a pediatrician, who would provide regular care, screening, and referrals. all mothers would also be offered home visiting.66 the home visitor would provide direct support and advice and conduct further screening to determine any special needs. a number of home visiting models have now been designed to help mothers deal with special needs, including depression, substance abuse, and domestic violence problems. linkages would also be made to the targeted parenting programs of different intensities depending on need. a strong system might also include neighborhood-based family resources centers (“frc”) that would provide on-going support, encourage connections with other families, and house some of the key programs to serve a coordinating role. while any system will be implemented at a local level by thousands of non-profit and government agencies, there are strong reasons for trying to build local systems around a core set of national programs, with oversight and assistance from a federal agency. starting with nationally funded programs provides already established funding streams with strong constituencies that can advocate for expanded funding. these programs also have structures for enhancing quality control, assessment, and technical assistance, and for creating more policy-relevant research than now occurs. a key factor is that all of the programs are run by thousands of local community agencies and thus already engage parents and community members. b. older children while a number of jurisdictions have developed systems focused on prevention and referral to services for young children, much less attention has been paid to developing ways of strengthening parenting and developing alternatives to cps referrals in situations where older children are experiencing problematic parenting or where parents are seeking help in handling an older child’s behaviors. brianna harvey, josh guptakagan, and christopher church explore the potential of using schools as a service system issue in their contribution to this symposium.67 as they 66 id. at 47. other programs have worked on delivery methods that meet the needs of victims of domestic violence. see phyllis w. sharps et al., domestic violence enhanced perinatal home visits: the dove randomized clinical trial, 25 j. women’s health 1129 (2016) (describing the effectiveness of the dove intervention in reducing perinatal intimate partner violence). 67 brianna harvey, josh gupta-kagan & christopher church, reimagining schools’ role outside the family regulation system, 11 colum. j. race & l. 1 (2021) (arguing that public schools should shift from a reporting function to providing services directly to families). see also gupta-kagan, supra note 17, at 954–58 (describing a “schoolto-health” pipeline). 726 colum. j. race & l. [vol. 12:712 discuss, several factors make schools an attractive system for providing preventive or protective services or as serving as the primary replacing cps. first, schools are the one system that has contact with virtually all children. with the great expansion of pre-k schooling, a school-based model has the potential for reaching a large portion of children over three years old. second, schools already do monitoring—teachers are the largest referrer of cases to cps.68 it would be far preferable if schools could work with families directly or through referral to specific community-based service programs. finally, many school systems offer social work services, although these primarily appear to focus on students experiencing schoolrelated problems. school systems also are responsible for providing services to students with special education needs. this requires working with parents to develop individual education plans (“ieps”). while these plans generally focus solely on the needs of the child, the iep process provides schools with experience in working with families. there are several models to build on. one organization, communities in schools (“cis”), works directly in 2,500 schools in twentyfive states and the district of columbia.69 cis school-based staff partner with teachers to identify challenges students face in class or at home and to provide needed services to the student. staff also work with families to help them obtain economic resources, counseling, or emotional support. in north carolina, a joint project of the north carolina department of health and human services and the north carolina department of public instruction provides funding for child and family support teams in a number of schools.70 through these teams, school social workers work with school nurses to screen and identify children who are potentially at risk of academic failure or out-of-home placement due to physical, social, legal, emotional, or developmental factors and connect these students’ families with needed services.71 other approaches include school based health centers72 and wellness centers.73 while these services have focused primarily on meeting the physical and mental health needs of the students, they could be used to address parenting issues. 68 harvey et al., supra note 67, at 1–2. 69 cis is described at cmtys. in schs., https://www.communitiesinschools.org/ [perma.cc/982l-kwzr] (last visited jan. 22, 2022). 70 n.c. dep’t of health & hum. servs., community child protection teams, https://www.ncdhhs.gov/divisions/social-services/child-welfare-services/community-childprotection-teams [perma.cc/73p4-qtnh] (last visited jan. 22, 2022). 71 see id. 72 michael arenson et al., the evidence on school-based health centers: a review, 6 glob. pediatric health 1 (2019) (analyzing the history, health outcomes, costs, and impact on health equity of school-based health centers). 73 carolyn jones, school “wellness centers” could be the answer to soaring mental health needs in california, edsource (dec. 9, 2020), https://edsource.org/2020/schoolwellness-centers-could-be-an-answer-to-soaring-mental-health-needs-in-california/644857 [perma.cc/gq3x-y5nc] (describing a california state commission call for wellness centers in schools amid the pandemic); mental health servs. oversight & accountability comm’n, every young heart and mind: schools as centers of wellness (oct. 2020) (arguing that a school-based wellness approach is vital to protecting children’s mental health). 2022] replacing cps 727 a number of factors will need to be addressed in developing a system of services through schools. establishing strong services requires major commitment from the entire school community. many school systems have started and abandoned social service programs over the years because of pressure to focus on classroom teaching and/or a lack of community commitment to the services among school personnel. school principals and staff may be reluctant to perform an assessment, service, and referral role in the situations now referred to cps. moreover, it appears that schools in the areas where there may be the greatest need for social services often serve as part of the coercive system rather than as a supportive alternative, perhaps in part because there are great disparities in funding of school systems and individual schools.74 a different, or additional approach, to service delivery for families with older children is the use of family resource centers.75 v. moving forward building a new approach requires addressing a number of system design issues and budgeting decisions at the federal, state, and local levels. proponents of abolishing or significantly reducing the reach of cps need to consider the factors that have made it so difficult to make cps effective despite intensive legislative and administrative efforts over the past forty years. most of these factors will be relevant to developing alternative approaches. the persistent failures of other systems serving children and families experiencing difficulties, including k-12 education, juvenile justice, mental health, substance abuse treatment, and domestic violence, is an indication that developing strong service systems is very difficult regardless of intent. reforming cps has been challenging in other countries as well, indicating that the barriers are not specific to u.s. institutions or policies.76 a key challenge is that services must be developed and implemented in thousands of localities; there is no federal service delivery system. each locality must rely, for the most part, on the capacities of local, non-profit service providers. local control is positive because it facilitates community voice and a degree of community control. but local implementation means that the contours and policies of every system are subject to changing personnel, political priorities, and constituencies. 74 nationally, public schools employ more police officers than social workers. see harvey, supra note 67, at 34–35. most advocacy and research in recent years has focused on policies to make schools less punitive; there is much less thinking about how to expand the role of schools as family support systems. 75 see family resources centers, child welfare info. gateway, https://www.childwelfare.gov/topics/preventing/prevention-programs/familyresource/ [perma.cc/2j8j-g3dq] (last visited jan. 22, 2022) (describing the services offered by family resource centers). for other approaches, see parenting matters, supra note 24, at 370–74. 76 see national systems of child protection: understanding the international variability and context for developing policy and practice (lisa merkel-holguin, john d. fluke & richard krugman eds., 2019) (descripting child protection systems in australia, canada, europe, israel, and south korea). 728 colum. j. race & l. [vol. 12:712 there are at least four elements needed for successful implementation of high-quality services: 1) resources; 2) service coordination; 3) quality control; and 4) capable personnel. upon reflection, the failure to address these factors prevented the success of an earlier legislative effort to reduce the scope of cps, the adoption assistance and child welfare act of 1980 (“accwa”).77 accwa envisioned greatly reducing the reach of cps largely along the lines this piece proposes, but the legislation failed to have a vision for and a means of creating an alternative service delivery system. it also did not allocate funds for front-end services to families referred to cps, including services to eliminate the need for intervention or foster placement removal.78 because the allocated resources focused on the backend of the system— permanency and adoption—this is where states focused their efforts.79 these mistakes need to be addressed if a new approach is to have a chance of success. a. resources any approaches to better helping parents challenged in providing adequate parenting will require both a large increase in funding for programs and more flexibility in the ways local governments can utilize the funding. services systems with inadequate staff or funding will function poorly whatever their goals, policies, and delivery structure. child welfare agencies have always been enormously underfunded.80 developing a system that includes a much larger investment in prevention/early intervention will be very expensive. this is especially true with respect to developing high quality services reaching a large number of families who present highly varied and complex needs. while only a portion of all parents may require intensive services in order to enable their children to achieve the desired basic outcomes, helping these families requires far more resources than is currently being invested. getting increased funding for these services will be challenging. targeted programs for higher risk families face difficulties in generating a large enough constituency to influence government funding. proponents must compete with a number of other important priorities that have broad 77 adoption assistance and child welfare act of 1980, pub. l. 96-272, 94 stat. 500 (1980). senators long and moynihan rejected a proposal to provide resources at the frontend and to provide guidance on necessary services, preferring the vague mandate of “reasonable efforts.” there also was little knowledge about what a good service alternative system would look like at that time, as most of the program elements suggested herein did not even exist at that time. 78 front-end services include programs and services to eliminate the need for formal cps involvement, such as the use of differential response and provision of services to prevent removal in substantiated cases. back-end services include foster care, reunification services, and adoption. 79 cong. rsch. serv., child welfare: purposes, federal programs, and funding (2021) (describing state funding for back-end services). see also ron haskins, child welfare financing: what do we fund, how, and what could be improved?, 692 annals am. acad. pol. & soc. sci. 50, 52–56 (nov. 2020) (summarizing spending by child welfare programs, most of which goes to foster care and adoption). 80 see, e.g., child welfare league of am., meeting the challenge of the family first prevention services act (2019) (describing the underfunding of the child abuse prevention and treatment act, particularly for front-end and prevention services). 2022] replacing cps 729 support in low-income communities, such as universal child-care subsidies, universal pre-k, and housing. there will be trade-offs for advocates seeking to enhance the effective individual treatment/services model while also addressing the income and other structural barriers that confront the majority of parents currently referred to cps. in order to obtain more resources, it will be necessary to connect to health care and education funding streams that have broader constituencies.81 one issue related to funding is the balance between universal and targeted parenting support services. universal programs are more expensive but also often generate more public support.82 home visiting should be universal, reflecting the fact that all new parents benefit from parenting support and education. making hv universal is important in generating political support and avoiding stigmatization. family connects controls hv costs by restricting the number and length of time of visits.83 fc provides hv to the entire population for a maximum of seven visits over the first twelve weeks following birth. further services are offered to targeted families. targeting requires having a means of determining which families need more intensive services and what kinds. new thinking is needed about how to assess parents and direct them to a level of service best suited to their needs and capacity to stay enrolled. b. service coordination a second issue is how to build a “coordinated” system. many parents face multiple adversities, including personal challenges (mental health, substance use, domestic violence), and economic issues, including job training.84 no state or community provides these types of services in a systemic manner that enables parents to receive needed support in the easiest way possible. even in localities that have an array of services, organizations providing each of these services largely work independently of each other, have different funding streams, and may serve different target populations. again, overcoming the barriers to creating a coordinated system is very difficult; proponents of more coordination have been trying for many years to change the behavior of federal, state, and local governments, with only limited success. funding at both the federal and state levels is heavily siloed into problem areas (mental health, domestic violence, substance 81 for a description of the broader programs and how these can be used to help, see ajay chaudry et al., cradle to kindergarten: a new plan to combat inequality (2017) (explaining how to overhaul the early care and education system to reduce educational and economic inequalities). see also parenting matters, supra note 24, at 351 (describing what a more successful national framework for child protection and parenting support might look like). 82 daro & benedetti, supra note 55, at 292. 83 dodge & goodman, supra note 64, at 46. another large-scale family support/parenting approach, triple p, contains both universal and targeted elements. ronald j. prinz, a population approach to parenting support and prevention: the triple p system, 29 future child. 123, 125 (2019). 84 coordination of services and service array, child welfare info. gateway, https://www.childwelfare.gov/topics/management/reform/soc/communicate/initiative/ntaec/s octoolkits/coordinationofservices/#phase=pre-planning [perma.cc/s54x-fs2n] (last visited jan. 22, 2022). 730 colum. j. race & l. [vol. 12:712 abuse, etc.), with different agencies overseeing different programs.85 changing systems and building integrated systems of support is a longterm proposition. weaving these systems into a cohesive whole takes time, leadership, and commitment that may take years of groundwork.86 partnerships grounded in a commitment to common principles are essential. ideally, an integrated funding stream would be established at the federal level. while people in federal agencies recognize this, there has been little success in accomplishing this legislatively. given the politics, it may be best to focus on increasing the funding for core programs at the federal and state levels and encouraging local jurisdictions to develop coordinating mechanisms. the program(s) should be primarily embedded in health and education systems because these are the only systems with sufficient financial resources to have a system of high-quality programs. once a system is in place, local jurisdictions can examine the types and quantity of needed services, make funding priorities based on local needs, and work to build the necessary system capacity. there will also be a need to establish a mechanism whereby one person or entity has responsibility for ensuring that services are provided and that parents can navigate dealing with several providers. this role might be assumed by a home visitor, a family resource center, a school social worker, or another agency that is trusted by parents. the critical factor is that a new system will require designating an agency to perform the positive services that are performed by some cps caseworkers. c. quality control: multiple models v. limited number of evidencebased programs throughout the country, most services to families are delivered by non-profit community organizations. this is true even for national programs like wic and head start, which are run by local non-profit agencies under contract with the federal government, not by government agencies. state and local governments will need to rely on existing providers for implementing most programs. the quality of these organizations and their services is highly varied. access to high quality programs is often especially limited in areas of concentrated poverty, the areas where the need is greatest. mechanisms need to be developed to ensure that all providers offer effective services. a key issue is whether to continue to support the use of multiple programs models or to concentrate funding on a small number of “evidencebased” models and establish procedures to continuously improve these programs through evaluation and research. several federal and state statutes now require the use of all local “evidence-based models or 85 haskins, supra note 79, at 52. 86 see, e.g., christina altmayer & barbara andrade dubransky, strengthening home visiting: partnership and innovation in los angeles county, 29 future child. 61 (2019) (explaining how, since 2009, a universal home visiting program has grown to effectively serve more than 59,000 families in los angeles county). 2022] replacing cps 731 practices.”87 there are strong arguments for adopting a very small number of programs. it is very difficult to help families facing multiple problems change parenting practices. it may be easier to improve the quality of available services if there are just a few models in operation, implemented by programs that have a history of willingness to work with very hard-toserve families. in addition, using a small number of programs would facilitate a realistic evaluation and research agenda, rather than trying to evaluate a large number of different approaches, which often involves small-scale evaluations of a number of local programs that produces little or no usable information. despite these considerations, several factors support encouraging and funding some degree of local variation. most communities have a variety of services in place that are not easy to alter. it is often difficult to persuade community agencies, which may have substantial political power at the local level, to adopt program models different from what they are currently doing. allowing each community to select a program that best fits its capacities and integrates with local resources enables more parent voice and may also lead to better implementation. from a practical and cost perspective, using local programs that are required to use some core principles with fidelity, rather than a specific manualized model, may be the most feasible approach. in general, evidence-based programs have a clear theory of how to influence both parent and child development. requiring local programs to employ these principles, building in accountability mechanisms, and engaging organizations in continuous improvement, while trying to customize the programs to meet the need for local variation, may be the best way to create an effective system that can be readily monitored, evaluated, and improved. d. capable personnel effective services require more than good models—staff quality is of critical importance. working with parents and children who often have complex needs requires knowledge, judgement, and sensitivity. however, finding qualified staff is difficult for cps agencies, schools, and most service programs. putting together the types of systems this piece suggests will require training a large number of people with a variety of skills. while employment of people who have been “clients” of cps or other agencies will bring increased numbers and new skills to many programs, it is questionable whether the current educational programs have the capacity to produce the number of trained personnel to staff the wide range of services envisioned. these proposed models also require that many current providers in wic, hv, school-based health and social services, and other programs, adopt what might be difficult role changes, particularly engaging in assessment and monitoring. many of these service providers may be 87 mark f. testa & david kelly, the evolution of federal child welfare policy through the family first prevention services act of 2018: opportunities, barriers, and unintended consequences, 692 annals am. acad. pol. & soc. sci. 68, 83–86 (2020). 732 colum. j. race & l. [vol. 12:712 reluctant to assume any form of regulatory role, so substantial efforts at training and developing assessment mechanisms will be necessary.88 vi. community control a central premise of many proponents of abolition/reform of cps is that parent/community voice must be central in choosing the elements of a service system and, perhaps, in deciding how budgets are allocated. it is argued that the “community” has more expertise regarding what is needed and what is likely to work and that community control is necessary to undo the racialized and subordinating effects of racial segregation on both parent behaviors, communities, and the functioning of cps. the desirability of place-based initiatives with some form of community control has long been assumed by governments (for example, the federally funded promised neighborhoods program) and by many foundation initiatives.89 these usually have focused on creating economic opportunity, but a number of community-based initiatives have focused on supporting and enhancing parenting. yet, implementing community control has generally proven difficult. for example, in three cities, the annie e. casey foundation recently funded community initiatives designed to provide a combination of job training and parenting support with parental voice as a major goal.90 a recent evaluation concluded that “(d)espite discussions, none of the . . . communities succeeded in implementing a formal, empowered community body with shared designauthority throughout the seven years.”91 in proposals to replace cps, the meaning and structure of community control is largely undeveloped. since the safety and development of children is involved, a number of issues must be addressed, including: at what level is “community” defined?92 who represents the community? who speaks for the child? in many places, it is the non-profit organizations that provide services to families, usually using government funds, that end up representing and speaking for the “community.” these organizations may be focused more on their own interests than those of their clients. local jurisdictions now employ a wide range of mechanisms to involve non-governmental members of the community in decision-making processes and oversight of various social service agencies. careful attention must be given to how various forms of community control/input have 88 see altmayer & dubransky, supra note 86, at 67–68, 75–76 (explaining the importance of training employees in implementing and growing los angeles county’s universal home visiting program). 89 see malika igalla et al., what explains the performance of community-based initiatives? testing the impact of leadership, social capital, organizational capacity, and government support, 22 pub. mgmt. rev. 602 (2020) (testing the efficacy of communitybased initiatives in the netherlands). 90 marla mcdaniel et al., developing place-based two-generation partnerships: lessons from three community change initiative partnerships, urb. inst. (2021) (reporting on the lessons from integrated services initiatives in buffalo, new york; columbus, ohio; and san antonio, texas). 91 id. at 10. 92 harvey et al., supra note 67, at 14–15 (noting that cps referrals may be concentrated in just a few blocks within a low-income neighborhood). 2022] replacing cps 733 functioned. the limits of community control also must be considered. for example, budget decisions are made at the federal, state, county, city, and school district levels. local community bodies may have more or less authority to determine how funds are allocated, the nature and mix of services, and the criteria for eligibility depending on the level of government with decision authority. vii. conclusion over the past fifty years, cps policy and practice has been regularly subject to pendulum swings, partly driven by the fact that there are a number of competing and conflicting goals embedded in both legislation and practice.93 while there is widespread agreement that a new approach to helping families and meeting the needs of children is needed, commentators offer very disparate views about both the problems and solutions. differing positions often are greatly influenced by value premises and different interpretations about what is actually occurring. the absence of adequate data, limited research, and the fact that approaches vary so greatly between and within states makes analysis of the likely impact of various alternative proposals difficult to evaluate. but such analysis is essential if the future is to be better than the past. dorothy roberts has laid out the failures of the past and a vision for the future. it is up to the field to focus on the best available knowledge and do the detailed thinking necessary to get there. 93 see jill duerr berrick, the impossible imperative: navigating the competing principles of child protection (2017) (sharing stories of child welfare professionals navigating their work while grappling with often-contradictory fundamental principles of child welfare). i. introduction ii. parenting and child welfare a. the need for cps: protecting a child’s current physical and mental safety. b. protecting and promoting the child’s basic physical, social-emotional, and academic development. iii. current efforts to reduce the reach of cps a. differential response b. voluntary prevention and treatment programs iv. towards a new system a. families with newborns and young children b. older children v. moving forward a. resources b. service coordination c. quality control: multiple models v. limited number of evidence-based programs d. capable personnel vi. community control vii. conclusion columbia journal of race and law denouncing the myth of place-based subsidies as the solution for economically distressed communities: an analysis of opportunity zones as a subsidy for lowincome displacement bre jordan* in an attempt to remedy the uneven balance of investment in distressed, low-income communities, legislators enacted the opportunity zone legislation—a place-based tax subsidy included in the tax cuts and jobs act of 2017. focusing primarily on capital investment, the opportunity zone legislation fails to incentivize community engagement, preserve affordable housing, or mitigate against displacement. the subsidy is likely to benefit wealthy investors and large corporations at the expense of lowincome, minority residents who can no longer afford to live in areas they once called home. this note provides a comparative critique of opportunity zones and similar efforts to revitalize urban areas. by examining how opportunity zones eliminate affordable housing and displace low-income communities, this note offers alternative solutions aimed at helping the low-income communities the subsidy fails to protect. i. introduction .................................................................. 66 ii. part one: legislative history and analysis of opportunity zones ........................................................ 69 a. enterprise zones ......................................................... 70 b. empowerment zones/enterprise communities .......... 72 c. new markets tax credit program .............................. 75 d. analysis of opportunity zone legislation ................. 79 * i appreciate the incredible outpour of support that i received from professor lynnise pantin in developing and writing this note. i owe particular thanks to the staff of columbia’s journal of race and law with special thanks to geanette foster and gelsey beaubrun who provided both careful guidance and friendship. i also want to thank my parents for encouraging me to write, to work hard, and to love learning. 66 columbia journal of race and law [vol. 10:1 1. what is an opportunity zone?.............................. 80 2. opportunity zones and affordable housing ........ 84 iii. part two: intersection between opportunity zones and affordable housing .................................. 85 a. opportunity zone critiques ........................................ 85 b. impact on affordable housing ................................... 88 c. illustrative examples of opportunity zones .............. 92 1. washington, d.c. ................................................. 93 2. storey county, nevada ......................................... 94 3. new york metropolitan area new york ............. 95 4. chicago, illinois.................................................... 99 iv. part three: reconciling opportunity zones with maintaining affordable housing .................. 101 a. defining desired outcomes of opportunity zone legislation and encouraging diversified community approaches ........................................... 102 b. increasing access to community land trust protections ................................................................ 105 c. implementing litigation strategies from gentrification lawsuits ............................................ 107 v. conclusion ................................................................... 112 i. introduction in 2007, the great recession swept over the united states, resulting in widespread housing foreclosures and increased poverty.1 since then, the country’s economic recovery has mostly been in affluent, predominantly white areas, and has bypassed the countries most distressed2 census tracts.3 in an attempt to remedy the uneven 1 jim tankersley, tucked into the tax bill, a plan to help distressed america, n.y. times (jan. 29, 2018), https://www.nytimes.com/2018/01/ 29/business/tax-bill-economic-recovery-opportunity-zones.html 2 “distressed” is used throughout this note to describe low-income areas with high poverty rates as defined in the 26 irc § 1392(a)(2). see infra note 39. 3 dc became predominantly black in the 1950’s; however, the percentage of black residents has slowly declined since the 1970’s. beginning in 2000, a no. 10:1] denouncing the myth of place-based subsidies 67 balance of investment in distressed, low-income communities, legislators enacted the opportunity zone legislation—a place-based tax subsidy intended to incentivize investment in areas without significant access to capital.4 unfortunately, wealthy investors are likely to be the predominant beneficiaries of this legislation, and at the expense of low-income, minority residents.5 due to prior targeted economic recovery initiatives across the united states, some low-income communities have seen a drastic increase in investment.6 although historically black communities such as downton brooklyn, new york, and the shaw neighborhood in washington, d.c., have experienced some economic uplift, the beneficiaries of this recovery have not been long-term, minority residents. instead, white, affluent, new residents have benefited from the stark changes in these formerly distressed areas.7 washington, d.c. and brooklyn, new york have become examples of the risk of gentrification8 and minority displacement when economic development lacks communityoriented approaches. driving capital into low-income communities, alone, is not enough to encourage revitalization because it simply displaces economically disadvantaged residents in exchange for higher income residents. large influx of about 50,000 white residents arrived in washington, d.c., paired with a sharp decline in black households. see peter tatian & serena lei, washington, dc: our changing city, urban institute (feb. 25, 2019, 10:00 am), http://apps.urban.org/features/ourchangingcity/demographics/ #index 4 economic innovation group, hq2 and opportunity zones: the big picture (nov. 16, 2018) https://eig.org/news/hq2-and-opportunity-zones-the-bigpicture. 6 see tatian & lei, supra note 3. 7 id. 8 this note refers to gentrification to encompass the process through which high-income residents or developments displace low-income residents. this note borrows the definition from hannah weinstein, fighting for a place called home: litigation strategies for challenging gentrification, 62 ucla l. rev. 794, 796 (2015). 5 tankersley, supra note 1. 68 columbia journal of race and law [vol. 10:1 similar to investment in brooklyn and d.c., the opportunity zone legislation focuses on capital investment, but fails to incentivize community engagement, preserve affordable housing, and mitigate against displacement.9 opportunity zones may amount to little more than a tax cut for the wealthy that only furthers the economic burden on low-income residents who can no longer afford to live in areas they once called home.10 this note illustrates the similarities between opportunity zones and other unsuccessful placed-based tax incentives, the potential negative impacts of opportunity zone legislation on affordable housing, and solutions to preserve accessible affordable housing. the central thesis of this note is that the opportunity zone legislation, on its own, is an ineffective solution to revitalize economically distressed communities. in order to spur development in a manner that minimizes displacement and preserves affordable housing, legislators should supplement the opportunity zone legislation with integrated community development approaches. part i provides background on the legislative history of opportunity zones, including an analysis of previous similar legislation. part ii outlines the intersection between opportunity zone legislation and affordable housing. in addition, part ii critiques the use of place-based tax incentives, focusing on their effectiveness and impact on affordable housing. specifically, part ii analyzes the selection of opportunity zones in washington d.c., storey county, nevada, and long island city, new york—where truly distressed communities were bypassed for higher-income areas previously targeted for investment. part iii offers both an offensive approach to protecting affordable housing, and a defensive approach that presents examples of successful litigation strategies used in gentrification lawsuits. the offensive strategies center around implementing community-oriented remedies, including 1) incentivizing diverse community development, 2) expanding access to transactional lawyering to increase urban entrepreneurship, and 3) developing 9 tatiana kimbo & richard phillips, how opportunity zones benefit investors and promote displacement, institute on taxation and economic policy: just taxes blog (feb. 25, 2019, 11:30 am), https://itep.org/howopportunity-zones-benefit-investors-and-promote-displacement/. 10 id. no. 10:1] denouncing the myth of place-based subsidies 69 legal structures that support community land trusts to fight displacement. the defensive strategies focus on preventing the use of opportunity zone legislation to further displacement and diminish affordable housing availability, using the fha, zoning laws, and state constitutions. ii. part one: legislative history and analysis of opportunity zones the united states has previously tried to use different tax incentives to encourage investment in low-income, economically distressed areas with the goal of revitalizing those communities. some of this legislation is still active, while other programs have been discontinued entirely. as this note explains below, these pro grams have done little to improve low-income areas or protect affordable housing. in 2017, congress enacted the tax cuts and jobs act, which includes the opportunity zone legislation that purports to address the problem of distressed communities across the united states.11 the opportunity zone legislation bears similarities to prior legislation in the united states that used tax incentives to encourage development in low-income, distressed communities.12 examples of previous place-based tax incentive legislation include: 1) enterprise zones in the 1980s; 2) empowerment zones/enterprise communities13 (“ez/ec”) enacted in 1993; and 3) the new markets tax credit program14 (“nmtc”) enacted in 11 see i.r.c. §1400z-2 (2019). 12 timothy p. r. weaver, elite empowerment, jacobin mag (apr. 21, 2016), https://www.jacobinmag.com/2016/04/hillary-clinton-race-empowerment-zonesurban-policy/; kaitlyn harger. & amanda ross. do capital tax incentives attract new businesses? evidence across industries from the new markets tax credit. 56 j. of reg’l sci., 733-53 (2016). 13 designation and treatment of empowerment zones, enterprise communities, and rural development investment areas, i.r.c. §§1391-1393 (1993). 14 new markets tax credit, i.r.c. §45(d)(c) (2000). 70 columbia journal of race and law [vol. 10:1 2000. the enterprise zones program was one of the first of its kind to be introduced in the u.s.; however, it was never successfully implemented as a federal initiative.15 the empowerment zones/enterprise communities (“ez/ec”) program and the nmtc were both implemented under former president bill clinton, but only the nmtc is still active today.16 this section will explain each of these prior legislative approaches, comparing them to the newly enacted opportunity zone legislation, and addressing their inability to revitalize distressed communities or have measurable positive impacts. a. enterprise zones in may of 1980, congressmen jack kemp and robert garcia introduced the enterprise zone concept in the u.s. as an effort to revive “economically depressed” areas through promoting private investment.17 peter hall, a british geographer and urban planning professor is credited with introducing the enterprise zone theory to the united kingdom, modeling it after the free market cities in hong kong and singapore.18 these free market cities experienced successful economic revitalization through minimizing or eliminating government regulation, taxes, wage 15 jennifer forbes, note, using economic development programs as tools for urban revitalization: a comparison of empowerment zones and new markets tax credits, 2006 u. ill. l. rev. 177, 180 (2006). 16 tami gurley-calvez et al., do tax incentives affect investment? an analysis of the new markets tax credit, 37 pub. fin. rev. 371, 371 (2009); see also paul anderson, new markets tax credit progress report, new markets tax credit coalition (jan. 8, 2019, 8:11 am), http://nmtccoalition.org/progressreport/. 17 gurley-calvez et al., supra note 17 at 371; see also wilton hyman, empowerment zones, enterprise communities, black business, and unemployment, wash. u. j. urb. & contemp. l. 143, 148 (1998). 18 audrey g. mcfarlane, race, space, and place: the geography of economic development, 36 san diego l. rev. 295, 321 (1999). see also hyman, supra note 17, at 147. no. 10:1] denouncing the myth of place-based subsidies 71 and labor regulation, factory safety regulations, and restrictions on imports and land use.19 the enterprise zone theory suggests that geographic areas, designated as “enterprise zones” may be improved through reduction in governmental regulation.20 hall theorized that reducing government oversight would create low-wage jobs as businesses sought inexpensive labor.21 hall further concluded that these jobs would later evolve into higher wage jobs as demand for more sophisticated labor increased with business growth.22 in 1980, the enterprise zone concept was adapted into the british local government planning and land act along with the finance act.23 enterprise zones were adopted as a proposed method for renovating and revitalizing industrial areas in britain.24 the program was aimed at attracting business to abandoned industrial areas through providing property tax exemptions, tax deductions for capital expenditures, and reduced administrative requirements.25 despite the promise of the enterprise zone theory in the united kingdom, the program was widely deemed a failure, resulting in high expenses and limited “trickle down” effects.26 in fact, few jobs were created and designated areas, such as the london docklands, are still heavily income deprived.27 19 see mcfarlane, supra note 18, at 321; see also hyman, supra note 17, at 147. 20 see mcfarlane, supra note 18, at 321. 21 see hyman, supra note 17, at 146. 22 id. 23 see forbes, supra note 15, at 180. 24 see mcfarlane, supra note 18, at 321. 25 see forbes, supra note 15, at 180. 26 see forbes, supra note 15, at 180.; see also kimbo & phillips, supra note 9 (arguing that the program simply moved existing jobs around and was extremely costly). 27 timothy weaver, the problem with opportunity zones, city lab (may 16, 2018), https://www.citylab.com/equity/2018/05/the-problem-withopportunity-zones/560510/ [hereinafter weaver may 2018]. 72 columbia journal of race and law [vol. 10:1 the u.s. model differed from the u.k. model, targeting incentives toward small businesses and aiming to revitalize urban neighborhoods instead of industrial areas.28 despite gaining significant political traction on various forms of enterprise zone legislation, legislators failed to adopt and implement federal enterprise zone legislation in the 1980s.29 subsequently, the enterprise zone program was briefly implemented at the state level, with more than 75% of states adopting some form of the idea.30 each state’s implementation and relative success with the program differed. research varies on the impact of the state-based enterprise zone programs, with researchers expressing the difficulty in measuring the results of enterprise zones due to limited data. 31 some studies show an increase in the number of jobs but fail to provide a link between the program and job creation.32 the concept of enterprise zones did not begin to receive national attention again until the early 1990s.33 b. empowerment zones/enterprise communities in 1993, legislators attempted to address the disparity brought to light by the los angeles riots, transitioning from the original enterprise zone approach to pairing tax incentives with 28 see forbes, supra note 15, at 181. 29 see mcfarlane, supra note 18, at 323; see also forbes, supra note 15, at 180 (discussing legislation that congress passed in 1987 that created federal zones without any tax incentives. however, the legislation was never implemented). see also, hyman, supra note 17, at 148 (title vii of the housing and community development act of 1987 incorporated enterprise zone legislation, but it was never utilized). 30 see mcfarlane, supra note 18, at 324. 31 see hyman, supra note 17, at 153; see also mcfarlane, supra note 18, at 325. 32 see mcfarlane, supra note 18, at 325. 33 see forbes, supra note 15, at 182. no. 10:1] denouncing the myth of place-based subsidies 73 social legislation.34 as a result of the los angeles riots, attention was placed on low-income communities.35 systemic racial disparities were at the forefront of congress’ attention and a great concern of their constituents.36 in august of 1993, president clinton signed into law the omnibus budget reconciliation act of 1993, which featured the empowerment zone/enterprise community program (“ez/ec program”).37 the empowerment zones program was estab-lished as a ten-year program, providing tax incentives to businesses expanding their operations within designated geographic zones of select cities.38 the program aimed to use tax incentives and social service funding to revitalize economically-distressed39 areas through the creation of jobs and business opportunities.40 each state was able to nominate areas for designations as either enterprise communities or empowerment zones between 1993 and 1996.41 a nominated area was required to have a minimum poverty rate of at least 20% and at least 90% of the area had to have a poverty rate of at least 25%.42 qualifying businesses 34 see forbes, supra note 15, at 183; see also jill zuckman, riots resurrect enterprise zones, 50 cong. q. wkly. rep. 1253, 1253 (discussing that a strong proponent of the enterprise zone concepts “would not support zones without accompanying social legislation.” rep. charles b. rangel is quoted saying “no business person so blinded by tax breaks is going to go into an area with ex-cons, ex-addicts, high tensions and inadequate housing.” representative rangel further stated that enterprise zones alone are “not going to do a bit of good.”). 35 see forbes, supra note 15, at 182-83. 36 id. 37 see forbes, supra note 15, at 182; see i.r.c. §1391-§1393 (1993). 38 see mcfarlane, supra note 18, at 296; see also forbes, supra note 15, at 183. 39 i.r.c. §1392(a)(2) (defining “distress” as a nominated area with “pervasive poverty, unemployment and general distress.”). 40 see mcfarlane, supra note 18, at 296. 41 i.r.c. §1391(b)-(c). 42 i.r.c. §1391(g)(3). 74 columbia journal of race and law [vol. 10:1 received larger grants for social services,43 regulatory waivers,44 and wage-tax credits for wages paid to “qualified zone employees.” 45 the u.s. department of housing and development (“hud”) and the united states department of agriculture (“usda”) designated nine empowerment zones (“ezs”) and ninety-five enterprise communities (“ecs”).46 both ezs and ecs received federal assistance, although ezs were eligible for more federal assistance and employee wage tax credits.47 the ez/ec program established four principles to evaluate proposed zones or communities: 1) economic opportunity; 2) community-based partnership; 3) sustainable community development; and 4) strategic vision for change.48 the perception of empowerment zones remains largely mixed, with some concluding that empowerment zones did little to alleviate poverty in urban areas.49 generally, as compared to the target small business population, larger firms were more likely 43 janet thompson jackson, can free enterprise cure urban ills?: lost opportunities for business development in urban, low-income communities through the new markets tax credit program, 37 u. mem. l. rev. 659, 686 (2007). 44 id. 45 see forbes, supra note 15, at 183-84. 46 see forbes, supra note 15, at 183. 47 see u.s. gov’t accountability off., gao/t-rced-98-27, the federal empowerment zone and enterprise community program, 3 n.3 (1997) (the difference between ezs and ecs was not explicitly set out in the statute but designated under rules of the u.s. department of housing and urban development. those rules are rearticulated in a 1997 united states general accounting office report. at the time of this report, the designations and differences were described as follows: “the secretaries designated a total of 104 ezs and ecs—6 urban ezs, 3 rural ezs, 65 urban ecs, and 30 rural ecs. each urban ez was allocated $100 million, each rural ez was allocated $40 million, and each ec was allocated just under $3 million in ez/ec ssbg funds for use over the 10-year life of the program. in addition, businesses located in an ez would be eligible for tax credits on wages paid to employees who live in the ez and increased deductions for depreciation. both ezs and ecs could use tax-exempt state and local bonds.”). 48 see forbes, supra note 15, at 183. 49 weaver, supra note 12. no. 10:1] denouncing the myth of place-based subsidies 75 to take advantage of the empowerment zone programs yet less likely to hire zone residents.50 a 2010 government accountability office (gao) report noted limitations in evaluating tax benefits or the ez/ec program and remaining unclear on how local businesses used the program.51 although the study observed improvements in poverty, unemployment, and economic growth among some designated areas, due to data constraints these results could not be conclusively tied to the program.52 in fact, some of the benefits attributed to the program were also credited to external factors such as an improved national economy and changes in welfare policy.53 overall, the relative impact of ez/ec remains largely unknown. c. new markets tax credit program the new markets tax credit program (nmtc), codified under 26 u.s.c. §45d, was also established during the clinton administration. the nmtc encourages capital investment in lowincome communities by offering tax incentives to investors.54 the program was first enacted in december 2000 and allowed investors to receive tax credits for investing through designated private entities into low-income areas.55 similar to other tax-incentive based programs, the nmtc aimed to use economic incentives to stimulate economic growth, create jobs, and revitalize low-income areas.56 congress established the nmtc to revitalize blighted communities, believing that driving private investment into neighborhoods in need 50 see forbes, supra note 15, at 185. 51 see u.s. gov’t accountability off., gao-10-464r, revitalization programs: empowerment zones, enterprise communities, and renewal communities, 10 (2010) [hereinafter gao 2010]. 52 id. at 11. 53 id. at 22. 54 see forbes, supra note 15, at 188; see also anderson, supra note 16, at 12. 55 see jackson, supra note 43, at 663. 56 see jackson, supra note 43, at 680; see also anderson, supra note 16, at 12. 76 columbia journal of race and law [vol. 10:1 of access to capital would uplift low-income communities.57 the program was initially slated to run for seven years but was subsequently reauthorized, most recently in 2017.58 the nmtc allows taxpayers to make “qualified equity investments”59 into community development entities60 (cdes).61 cdes use this investment to invest in low-income communities.62 cdes, as established under the nmtc, are required to be a domestic corporation with a demonstrated mission of providing capital to low-income communities.63 to apply for qualification, cdes must design a business plan that outlines a plan to finance businesses or 57 matthew freedman, teaching new markets old tricks: the effects of subsidized investments on low-income neighborhoods, j. pub. econ. 1000, 1007 (2012). 58 a permanent authorization of the nmtc has been proposed, but as of march 2018 congress has not moved on this decision. see anderson, supra note 16, at 12. 59 i.r.c. §45(d)(b)(1) ) (2000) (defining “qualified equity investment” as “any equity investment in a qualified community development entity if a) such investment is acquired by the taxpayer at its original issue (directly or through an underwriter) solely in exchange for cash, (b) substantially all of such cash issued by the qualified community development entity to make qualified low-income community investments, and (c) such investment is designated for purposes of this section by the qualified community development entity.” (b)(6) defines equity investment as “any stock (other than nonqualified preferred stock) … in an entity which is a corporation, and any capital interest in an entity which is a partnership.”). 60 i.r.c. §45(d)(c) (defining a community development entity as “any domestic corporation or partnership if a) the primary mission of the entity is serving, or providing investment capital for low-income communities or lowincome persons, b) the entity maintains accountability to residents of lowincome communities through their representation on any governing board of the entity or on any advisory board to the entity, and (c) the entity is certified for purposes of this section as being a qualified community development entity.”) 61 see anderson, supra note 16, at 18. 62 id. 63 id. no. 10:1] denouncing the myth of place-based subsidies 77 revitalization projects in low-income communities.64 the community development financial institutions fund (cdfi fund) administers the nmtc, evaluating applications for tax credit allocations based on the following criteria 1) business strategy, 2) capitalization strategy, 3) management strategy, and 4) community impact.65 the businesses that benefit from the cde investment are labeled “qualified active low income community businesses”66 (qalicbs).67 an investor receives a tax credit of 39% taken over seven years.68 an eligible low-income community must have a poverty rate of at least 20% or a median income at or below 60% of the state or metropolitan area’s median income.69 certain low population tracts that are adjacent to nmtc eligible tracts and that are in empowerment zones are also eligible.70 64 id. 65 see jackson, supra note 43, at 693. 66 i.r.c. §45(d)(d)(2) (2000) (defining a “qualified active low-income community business” as any corporation within a taxable year that has “(i) at least 50% of the total gross income of such entity is derived from the active conduct of a qualified business within any low-income community, (ii) a substantial portion of the use of tangible property of such entity (whether owned or leased) is within any low-income community, (iii) a substantial portion of the services performed for such entity by its employees are performed in any low-income community, (iv) less than 5 percent% of the average of the aggregate unadjusted bases of the property of such entity is attributable to collectibles.. (v) less than 5 percent of the average of the aggregate unadjusted bases of the property of such entity is attributable to nonqualified financial property”). 67 see anderson, supra note 16, at 19. 68 id. 69 see anderson, supra note 16, at 21; see also i.r.c. §45(d)(e) (defining a “low-income community” as a community with a poverty rate of at least 20%, or either i) a tract in a non-metropolitan area with a median family income not exceeding 80% of the statewide median family income or ii) a tract in a metropolitan area with a median family income not exceeding 80% of the statewide median family income or the metropolitan area median family income.). 70 see anderson, supra note 16, at 21. 78 columbia journal of race and law [vol. 10:1 similar to other place-based tax incentives, measuring the impact of the nmtc has proven difficult, specifically when considering the broad geographic scope of the nmtc.71 implementation and eligibility criteria varied across areas, leading to mixed evaluations from researchers.72 some researchers found that the nmtc had positive effects on economic activity and neighborhood conditions. 73 for example, over two-thirds of cde investment has gone to commercial real-estate development.74 the nmtc also shows a positive association between the program and an increase in jobs paying $15,000 per year.75 since the implementation of the nmtc, designated areas have also seen a decline in poverty and unemployment rates.76 despite these results, the program may have had little to no effect on local employment.77 instead, the program seemed to show an insignificant impact on home value and an increased household turnover rate, potentially attributable to changes in neighborhood characteristics and not improved conditions for pre-existing residents.78 in fact, there was no change in corporate investment levels in response to the nmtc but more likely the shifting of corporate funds from high-income communities to low-income communities to take advantage of the tax-break.79 overall, the benefits of the nmtc are modest and vary greatly across communities.80 despite minimal benefits to communities, investors participating in the nmtc program saw 71 see gurley-calvez et al., supra note 16, at 373. 72 see freedman, supra note 57, at 1001. 73 id. 74 id. at 1002. 75 id. at 1012. 76 id. at 1000. 77 id. at 1001. 78 id. at 1000-01. 79 see gurley-calvez et al., supra note 16, at 371. 80 see freedman, supra 57, at 1013. no. 10:1] denouncing the myth of place-based subsidies 79 a 58% increase in wealth, signaling a program that widely benefits investors but does little for distressed communities.81 as explained below, the structure of cde investment is very similar to opportunity zones, where investment is driven through a fund for projects in low-income communities in exchange for a tax credit. unlike opportunity zones, cdes have more restrictions and only certain businesses are eligible under the cdfi fund. for example, golf courses, country clubs, gambling arenas, liquor stores, etc., are not eligible.82 previous programs also suffered from ineffective evaluation parameters. a 2014 government accounting office (gao) study found that the nmtc subsidies, in some cases, were unnecessarily duplicative and had the potential to dilute the positive impacts on low-income communities.83 in line with the solutions posed below, the study calls for adequate controls, more complete and accurate data collection, and improved evaluation of loan-performance. unfortunately, the opportunity zone legislation does not currently incorporate any of the suggested monitoring tools and is at risk to suffer the same lackluster or adverse results as the previous programs. given the overlap in structure and purpose between empowerment zones, the nmtc, and opportunity zones, it is unconvincing that opportunity zones are a new and novel idea that will have wide sweeping positive effects on low-income communities. it is more likely that opportunity zones will suffer a similar fate as previous initiatives. d. analysis of opportunity zone legislation opportunity zones were designed to address the development needs in low-income areas, including affordable housing and economic opportunity. however, opportunity zones have the potential to exacerbate displacement and the affordable housing crisis. alternatively, the program might have little positive impact 81 see gurley-calvez et al., supra note 16, at 388. 82 see anderson, supra note 16, at 19. 83 see u.s. gov’t accountability off., gao-14-500, new markets tax credit: better controls and data are needed to ensure effectiveness (2014) [hereinafter gao 2014]. 80 columbia journal of race and law [vol. 10:1 on the affordable housing crisis it purports to address. this section provides a comprehensive overview of opportunity zones, as well as background on the opportunity zone program, its initiatives, and its current status. this section also provides illustrative examples of opportunity zone census tracts, analyzing their relative level of distress and ability to retain affordable housing. in fact, as the brookings institute notes, place-based subsidies have a null effect on investment in gentrifying areas.84 1. what is an opportunity zone? in 2017, congress established the opportunity zone program as a part of the tax cuts and jobs act.85 the program is aimed at encouraging private investment in certain low-income areas designated as “opportunity zones.”86 the opportunity zone program provides investors with favorable capital gains treatment for investing in qualified opportunity funds.87 although similar to previous legislation, opportunity zones are on a larger scale and focus on capital gains tax subsidies to incentivize investor development with fewer restrictions and requirements than the empowerment zones program or the nmtc.88 opportunity zone legislation was designed, in part, by the economic innovation group (eig), a research and advocacy group.89 84 see hilary gelfond & adam looney, learning from opportunity zones: how to improve place-based policies, brookings inst, oct. 2018, at 1, 6 (ranking all census tracts in each state by median home price appreciation between 2012 and 2016 and defining tracts in the top 25 percent as “gentrifying.”). 85 see i.r.c. §1400z-2 (2019). 86 see marc shultz, an in-depth guide to opportunity zone guidance: part i, law 360 tax authority, oct. 31, 2019, lexis. 87 id. 88 see benjamin w. kennedy, the opportunity zone program, nev. law. sept., 2018 at 19, 21. 89 see the promise of opportunity zones: hearing before the jt. econ. comm., 115th cong. 1 (2018) (statement of john w. lettieri, co-founder no. 10:1] denouncing the myth of place-based subsidies 81 senator tim scott, senator cory booker, representative pat tiberi and representative ron kind co-authored and co-sponsored the bill. the program was implemented in a series of steps.90 each governor was able to designate up to 25% of eligible census tracts as opportunity zones subject to the approval of the u.s. department of treasury (dot).91 an eligible low-income community must have a poverty rate of at least 20% or a median family income that is no greater than 80% of the statewide median.92 up to 5% of the eligible tracts may be substituted for contiguous tracts. contig-uous tracts are areas that do not fall within the criteria for low-income communities but rather border a qualifying tract.93 a contiguous tract must have a median family income that does not exceed 125% of the qualifying tract.94 eligibility for the opportunity zone program was vast, with 57 percent of all neighborhoods in america qualifying, despite not all being truly distressed. 95 once zones were and president, economic innovation group) [hereinafter lettieri]; eig has political investment in the legislation. the idea was proposed in a 2015 white paper written for eig. further, eig helped “design and champion” the proposed act that was the basis for the opportunity zone legislation. eig as a research and advocacy group, has released reports detailing the program and assessing its progress. however, eig sources must be evaluated in light of their interest in the success and implementation of the program. 90 id. 91 rebecca lester et al., opportunity zones: an analysis of the policy’s implications, 90 state tax notes 221, 222 (2018). 92 in cases of low-income communities in metropolitan areas, the median family income must also not exceed 80% of the median family income in the surrounding metropolitan area. this definition of low-income communities, as cited to in i.r.c. §1400z-2, comes from the statute codifying the nmtc, exhibiting the overlap between the two programs. see i.r.c. §45d(e) (2000). 93 i.r.c. §1400z-2. 94 i.r.c. §1400z-2. 95 see kennedy, supra note 88, at 19; see also gelfond & looney, supra note 84, at 1; tankersley, supra note 1. https://www.nytimes.com/2018/01/29/business/tax-bill-economic-recoveryopportunity-zones.html (defining “distressed communities” as communities with a median household income of no greater than 59,000 and a poverty rate above the national average). 82 columbia journal of race and law [vol. 10:1 identified, governors submitted nominations for approval by the u.s. dot. 96 investors planning to take advantage of the tax subsidy are able to take capital gains earned from another asset and invest it into a “qualified opportunity fund” within 180 days from the sale of the asset.97 capital gains include gains from the sale of stock or other forms of property.98 the act defines a qualified opportunity zone fund, in relevant part, as “any investment vehicle which is organized as a corporation or a partnership for the purpose of investing in qualified opportunity zone property (other than another qualified opportunity fund) that holds at least 90 percent of its assets in qualified opportunity zone property.”99 investors may defer and potentially avoid capital gains tax for investing in qualified opportunity zone funds.100 investors may then use a qualified opportunity fund to invest in an “opportunity zone property.”101 the act defines a qualified opportunity zone property as one of the following: 1) qualified zone stock; 2) qualified zone partnership interest; or 3) qualified zone business property.102 investors may not directly invest in property to receive the benefit but must do so through a qualified opportunity fund.103 an investor is able to defer capital gains invested in a qualified opportunity fund from inclusion as taxable income until the earlier of either 1) the fund is sold or exchanged, or 2) december 2026.104 typically, the sale of assets is taxed at a maximum of 20% plus a 3.8% surtax, but under the opportunity zone legislation, asset sales may be rolled into an 96 see lettieri, supra note 89, at 3. 97 see kennedy, supra note 88, at 19. 98 id 99 i.r.c. §1400z-2. 100 see shultz, supra note 86. 101 see kennedy, supra note 88, at 19. 102 i.r.c. §1400z-2. 103 see kennedy, supra note 88, at 19. 104 i.r.c. §1400z-2; see also kennedy, supra note 88, at 19. no. 10:1] denouncing the myth of place-based subsidies 83 opportunity fund and deferred at least temporarily, and sometimes permanently.105 if an investor holds the investment for ten years, then the investor may permanently exclude the gains on the initial investment.106 investments held for less than ten years are excluded on a step-up107 basis.108 as a result, an investor could defer capital gains tax and realize tax-free appreciation of the underlying real estate asset.109 proponents of opportunity zones contend that the program will reduce poverty, decrease unemployment and promote revitalization.110 if successful, the program could direct large investment to distressed areas, with more than $2 trillion in untouched and unrealized capital gains.111 however, state governments had broad discretion over the designation of opportunity zones; the program has few restrictions; and there is no cap on the amount of capital gains tax an investor may avoid.112 apart from some restrictions on “sin” businesses, the only significant restriction is that a real 105 see tankersley, supra note 1. 106 see kennedy, supra note 88, at 21. 107 the step-up provision is outlined in the statute at i.r.c. §1400z. for example, an investor may sell stock and use those gains to invest in a qualified opportunity fund. those funds can be used to invest in a development project, such as a new shopping center. if the investor retains the investment for five years, the investor will pay 90% in capital gains tax on the original investment. if the investor retains the investment for seven years, the investor will pay only 85% of the capital gains tax. if the investor holds the investment for 10 years, the capital gains tax may be permanently avoided. for further discussion of the step-up provision, see tankersley, supra note 1; kennedy, supra note 88, at 21. 108 see kennedy, supra note 88, at 21. 109 id. 110 weaver may 2018, supra note 27. 111 see tankersley, supra note 1. 112 ali foyt, comment, legal obstacles to affordable housing development, 56 hous. l. rev. 506, 524 (2018); however, some states may have localized restrictions on projects despite the lack of a federal mandate. see peter murray, opportunity zones in the wake of amazon hq2, carto (nov. 28, 2018), https://carto.com/blog/opportunity-zones-location-intelligence/. 84 columbia journal of race and law [vol. 10:1 estate project must be “substantially improved.”113 further, the opportunity zone program has few guardrails to ensure investment is directed to deeply impoverished areas, where investment could spur economic growth for long-term residents, instead of high gentrifying-tracts 114 investment in high-gentrifying tracts overshadows the purpose of the program because investment in these tracts would likely occur without the tax-subsidy and longterm residents may be displaced due to rising home prices and lack of protections to maintain affordable housing.115 2. opportunity zones and affordable housing although the opportunity zone program aims to promote investment in distressed communities, the program neglects to outline any parameters for maintaining or creating affordable housing.116 governors of every state faced a conflict between selecting deeply distressed areas that are in need of economic revitalization or alternatively selecting gentrifying areas where investment is likely but would only benefit investors.117 while either tract qualified under the opportunity zone legislation, directing investment to truly distressed communities better achieves the stated aims of the legislation. however, choosing a tract with 113 brett theodos et al., did states maximize their opportunity zone selections?: analysis of opportunity zone designations, urban inst. 2. (may 2018, rev. july 2018), https://www.urban.org/research/publication/did-statesmaximize-their-opportunity-zone-selections [hereinafter theodos july 2018]; see i.r.c. §1400z-2 (2019)(“property shall be treated as substantially improved by the qualified opportunity fund only if, during any 30-month period beginning after the date of acquisition of such property, additions to basis with respect to such property in the hands of the qualified opportunity fund exceed an amount equal to the adjusted basis of such property at the beginning of such 30-month period in the hands of the qualified opportunity fund”). 114 see foyt, supra note 112, at 524. 115 id. at 533. 116 id. at 524. 117 see gelfond & looney, supra note 84, at 1. no. 10:1] denouncing the myth of place-based subsidies 85 appreciating economic values, a sign of gentrification, better benefits investors who hope to maximize their savings. for example, many areas in the washington, d.c. area that are designated as opportunity zones are also receiving high level investments.118 since the value of the tax subsidy is based on rising profits, lower-income individuals may be displaced for high-income residents who yield higher capital gains. while the majority of selections were indeed truly distressed areas, many designated zones were not actually low income and in need of access to capital.119 therefore, opportunity zones may lack any positive effect on affordable housing or low-income economic uplift.120 instead, the legislation could fuel higher real estate prices and displacement.121 as a consequence, opportunity zones may become a vehicle to subsidize gentrification.122 iii. part two: intersection between opportunity zones and affordable housing a. opportunity zone critiques opportunity zones focus on tax subsidies for capital gains and investments, which is not an effective strategy for revitalizing urban areas.123 previous legislation, including nmtc, enterprise zones, and empowerment zones, showed that tax incentives had 118 brady meixell & brett theodos, are opportunity zones in the greater dc area targeted to communities in need of investment, urban inst. (june 20, 2018), https://greaterdc.urban.org/blog/are-opportunity-zones-greater-dcarea-targeted-communities-need-investment. 119 see kimbo & phillips, supra note 9. 120 see weaver may 2018, supra note 27. 121 see kimbo & phillips, supra note 9. 122 adam looney, will opportunity zones help distressed residents or be a tax cut for gentrification, brookings inst. (feb. 26, 2018), https://www. brookings.edu/blog/up-front/2018/02/26/will-opportunity-zones-helpdistressed-residents-or-be-a-tax-cut-for-gentrification/. 123 id. 86 columbia journal of race and law [vol. 10:1 almost no impact on economic growth, were largely ineffective, or had limited scope.124 the nmtc financed several projects, and while widely lauded, its lack of a defined targeted outcome impaired researchers’ ability to analyze the net effect and benefit to local residents.125 the few indications of economic improvement from the program were seemingly due to changes in the neighborhood composition.126 although the nmtc intended to devolve positive benefits onto long-term residents in distressed areas, reduced poverty and unemployment rates were, at least in part, a result of new residents moving into the area and not a reduction in these rates for long-term residents.127 the notion that low-income area development is stunted because of excessive taxation on capital investment is misguided.128 as the empowerment zones legislation showed, tax subsidies alone have no substantive impact on investment.129 comparatively, one of the most successful aspects of empowerment zones was its focus on people and local services, instead of focusing on capital gains and investments, which are featured in the opportunity zone legislation.130 opportunity zone legislation may potentially reduce capital gains tax revenue by $1.6 billion over 10 years without any substantive evidence that these investments will amount to anything more than tax-free gains for investors and developers.131 opportunity zone legislation is arguably a subsidy to wealthy investors based on capital appreciation, which created 124 see weaver may 2018, supra note 27; see also tankersley, supra note 1. 125 see looney, supra note 122. 126 see freedman, supra note 57, at 1000. 127 id. 128 see weaver may 2018, supra note 27; see also tankersley, supra note 1 (speculating that the provision could deliver a windfall to wealthy investors, namely corporations and financiers). 129 see forbes, supra note 15, at 183. 130 see looney, supra note 122. 131 see tankersley, supra note 1. no. 10:1] denouncing the myth of place-based subsidies 87 perverse incentives for local legislators to select appreciating tracts. in some cases, instead of targeting areas with stagnant or diminishing housing prices, many states with opportunity zones chose “high appreciation” tracts.132 the larger the increase in value of the area, the more investors will accrue in capital gains tax and, thus, will save money as a result of the tax subsidy. investing in high appreciating areas is incentivized by the opportunity zone legislation. the subsidy is not based on empowerment of local communities, local services, protections for retaining local residents, or affordable housing development.133 in fact, the value of the subsidy is largely dependent on rising property values, appreciating rents, and increasing business profits.134 opportunity zones are most beneficial to investors when property values rapidly increase.135 therefore, opportunity zones could serve as a tax subsidy for displacement, benefitting high income profits at the expense of local residents who are priced out of their neighborhoods.136 moreover, most individuals cannot take advantage of this subsidy; thus, the benefit of the tax subsidy primarily goes to high income investors.137 alarmingly, opportunity zone legislation relies on providing an indirect benefit, in the form of tax cuts, to wealthy investors in a longshot effort to encourage trickle-down benefits to low-income areas.138 more likely, the program will result in lost tax revenue that would be better spent on programs that promote longterm community development and prevent displacement.139 132 see gelfond & looney, supra note 84, at 3. although high appreciation tracts may be defined in different ways, i use this term to indicate tracts with appreciating investment levels or tracts that were slated for investment prior to or concurrent with the legislation. 133 see looney, supra note 122. 134 id. 135 see gelfond & looney, supra note 84, at 3. 136 id. 137 see gelfond & looney, supra note 84, at 1. 138 see kimbo, supra note 9. 139 id. 88 columbia journal of race and law [vol. 10:1 several states selected tracts in areas that are quickly gentrifying, instead of the most distressed areas in need of directed funding.140 offering tax incentives for investments projects that would have occurred without tax breaks will likely result in subsidized displacement of long-term residents.141 this fear is exacerbated in cities like the new york city metropolitan area, where numerous contiguous tracts were selected and housing affordability is rapidly declining.142 the opportunity zone legislation may further pressure an already weakened affordable housing industry. b. impact on affordable housing the u.s. currently suffers from a severe housing shortage, especially in terms of affordable housing.143 the u.s. is facing one of its worst housing crisis due to the combined impact of a sharp rise in rental prices and stagnant incomes.144 in many markets, rental prices are soaring 10-15%.145 although in some of the most expensive u.s. cities, such as washington, d.c. and new york, rental prices have seen a slight drop in median asking price, many of these cities are still well above the national median asking price of $1209 for a one-bedroom.146 all of this is despite an increase in production of housing units across the states, thus 140 although overall, designated census tracts were not high appreciating tracts, several designated at least some high gentrifying tracts. see gelfond & looney, supra note 84, at 13. 141 see weaver may 2018, supra note 27. 142 economic innovation group, supra note 4. 143 see foyt, supra note 112, at 507. 144 patrick sisson, community land trusts take aim at rising rents, curbed (apr. 17, 2018), https://www.curbed.com/2018/4/17/17244956/rentaffordable-housing-community-land-trust-collective 145 wolf richter, rental prices are soaring around the us, business insider (july 2, 2018), https://www.businessinsider.com/rental-prices-are-soaringaround-the-us-2018-7. 146 id. no. 10:1] denouncing the myth of place-based subsidies 89 leading to a crisis of housing affordability and not only housing availability.147 the rise of home prices has resulted in the decrease of affordable housing production and availability.148 as living in urban cities becomes increasingly more expensive across the united states, many long-term local residents are being forced to move outside of the city.149 opportunity zone legislation is intended to address distressed cities across the united states, however, its legislation may further diminish the affordability of housing, forcing-out local residents in favor of investors and commercial developments. in general, place-based tax incentives similar to opportunity zones risk pricing out local or long-term residents.150 since opportunity zone legislation does not directly address affordable housing, it does not include any specific affordable housing protection or requirements.151 while not protecting affordable housing, the legislation also fails to adequately restrict investors. the legislation lacks a cap on the amount of capital gains taxes that investors are able to avoid under the act and the act has few limits on use of the subsidy.152 additionally, the scope of the tax bill may have ultimately lowered the value of the low income housing tax credit (lihtc), which helps to promote affordable housing production.153 without adequate protections to minimize displacement, wealthy investors will gain at the expense of low-income residents. some opponents, noting the lack of 147 id. 148 see sisson, supra note 144. 149 see sisson, supra note 144; richter, supra note 145. 150 see gelfond & looney, supra note 84, at 3. 151 opportunity zone legislation was enacted as a part of the 2017 tax cuts and jobs act. the entire bill reduced affordable housing productions and may have ultimately lowered the value of the low-income housing tax credit (lihtc), which helps to promote affordable housing production. the act may reduce the supply of the lihtc rental homes by 235,000 and jobs over the next 10 years by 262,000. see foyt, supra note 112, at 523. 152 see gelfond & looney, supra note 84, at 1. 153 see foyt, supra note 112, at 507, 538 90 columbia journal of race and law [vol. 10:1 restrictions on investors and affordable housing reduction, characterized the opportunity zone legislation as simply “a limitless tax giveaway.”154 proponents of the policy suggest that it will improve the community and rarely results in displacement. if used to its maximum benefit, opportunity zone legislation could improve low-income neighborhoods drastically.155 in fact, more than $2 trillion of unrealized capital gains tax could be directed to truly low-income areas.156 opportunity zone legislation has been lauded as flexible and scalable, serving to increase the ability for participation, variance across states, and scope of impact.157 eig, a key proponent of the legislation, argues that few tracts were designated in “gentrifying areas.”158 further, in his testimony before the economic committee of the united states congress, eig representative john w. lettieri argues that the economic characteristics of selected tracts does not appear to indicate a probability of gentrification or displacement.159 in aggregate, it is possible that most of the selected census tracts do not show a likelihood of gentrification. in a subsequent study published through median, eig notes that less than 4% of zones experienced high levels of socioeconomic change, an indicator of gentrifying pressures.160 while this statistic seems encouraging, when evaluated at the state level, the potential for concentrated areas of displacement is apparent.161 as exhibited below, some census tracts and states were so zealous in their selections that 154 see foyt, supra note 112, at 523-524 155 michael novogradac et al., tax reform and its consequences for affordable rental housing, 27 j. affordable housing 107, 126 (2018). 156 id. 157 see lettieri, supra note 89, at 2. 158 economic innovation group, supra note 4. 159 see lettieri, supra note 89, at 5. 160 economic innovation group, opportunity zones: the map comes into focus, medium (june 15, 2018), https://eig.org/news/opportunity-zones-mapcomes-focus. 161 see theodos july 2018, supra note 113, at 6. no. 10:1] denouncing the myth of place-based subsidies 91 their efforts seem to support and subsidize gentrification in historically minority populated areas across the u.s.162 some communities experienced little targeting with regard to their relative need or ability to access capital.163 further, a measure of notable socioeconomic changes does not capture the future possibility of gentrification resulting from the legislation.164 seemingly, the joint testimony shifts the burden of success to local governments, and anchors any potential problems on the local governments’ ability to work within the community. proponents admit that one of the biggest risks of opportunity zones is improper local management.165 in order to ensure accessibility and empowerment of local communities, local legislators must mitigate the downsides of opportunity zones and properly influence its upsides.166 focusing specifically on raising and directing capital to distressed areas is “not a strategy,” instead it repeats the errors of unsuccessful place-based tax subsidies. 167according to joint testimony before congress, eig worked closely with state and local policymakers, community organizations, and philanthropies.168 local governments should work with workforce development programs, ease restrictive land use regulations, and increase local entrepreneurship, in order to 162 see theodos july 2018, supra note 113, at 8 (noting that the designated tracts had higher percentages of hispanic and black residents than nondesignated tracts). 163 brady meixell & brett theodos, how chicago and cook county can leverage opportunity zones for community benefit. urban inst. (jan. 2018), https://www.urban.org/research/publication/how-chicago-and-cook county-can-leverage-opportunity-zones-community-benefit [hereinafter meixell jan. 2018]. 164 tanvi misra, how to make opportunity zones work in chicago. city lab. (jan. 10, 2018), https://www.citylab.com/solutions/2019/01/opportunity zones-tax-benefits-economic-development/579868/. 165 economic innovation group, supra note 4. 166 id. 167 id. 168 see lettieri, supra note 89, at 1. 92 columbia journal of race and law [vol. 10:1 maximize the success and benefit of opportunity zone legislation.169 c. illustrative examples of opportunity zones this section presents examples of opportunity zones across the united states. while states generally tended to select relatively disadvantaged areas, 24% of selections had low poverty rates.170 some legislators appeared to designate tracts with the lowest levels of pre-existing investment, such as montana, washington, d.c., arkansas, and georgia.171 however, some legislators designated large percentages of tracts with prevalent socioeconomic changes, i.e., new york state (13%) and, more specifically, new york city (21%), and washington d.c. (32%).172 despite some evidence that truly distressed areas were targeted, others were likely investment targets, as most significantly exemplified in storey county, nevada, which was originally unqualified to be an opportunity zone.173 given that areas such as new york city, washington, d.c., and storey county, nv, exhibit the potential for opportunity zones to subsidize gentrification, this section, will examine these areas as illustrative examples of the adverse impacts of opportunity zone legislation.174 while most of this section focuses on areas ripe for gentrification and displacement, this note also presents cook county, illinois as an example of an area with potential for economic uplift in truly distressed communities. 169 see lettieri, supra note 89, at 7. 170 see gelfond & looney, supra note 84, at 7. 171 see theodos july 2018, supra note 113, at 4. 172 see theodos july 2018, supra note 113, at 6. 173 see gelfond & looney, supra note 84, at 7. 174 see looney, supra note 122. no. 10:1] denouncing the myth of place-based subsidies 93 1. washington, d.c. washington, d.c. legislators articulated four desired outcomes of opportunity zone investment in dc: 1)deliver new amenities, such as community-serving retail and fresh food grocers; 2) increase affordable and workforce housing; 3) capitalize dc small businesses; and 4) create jobs for dc residents and pathways to the middle class.175 many areas in washington, d.c. that are designated as opportunity zones already have access to high level investments without the incentive of the legislation.176 in washington, d.c. qualified opportunity zones also include high appreciating areas such as buzzard point, near d.c. united’s new stadium, noma, shaw, le droit park, and brookland, all of which show great promise for rising home prices in previously distressed comm-unities.177 affordable housing in washington d.c., however, is rapidly declining and many low-income residents are being priced out of the nation’s capital. 178 washington, d.c. has a population of 47.1% black or african americans and 11% hispanic or latinx.179 some of its most densely populated minority areas are facing the potential to become widely unaffordable. not only does this impact lowincome communities, but it also disproportionately targets communities of color to the direct benefit of wealthy investors. washington, d.c. exhibits the potential for this legislation to have an adverse impact on communities of color that have been present in these communities for decades. 175 opportunity zones in washington, d.c., office of the deputy mayor for planning and economic development https://dmped.dc.gov/page/ opportunity-zones-washington-dc (last visited nov. 4, 2019). 176 see meixell & theodos, supra note 118. 177 see looney, supra note 122. 178 see foyt, supra note 112, at 518. 179 u.s. census bureau, quick facts: district of columbia, https://www.census.gov/quickfacts/dc (last visited nov. 27, 2019). https://www.census.gov/quickfacts/dc 94 columbia journal of race and law [vol. 10:1 2. storey county, nevada nevada originally elected not to nominate storey county, nevada because the county did not qualify under the legislation as detailed under the tax cuts and jobs act—the poverty rate was above 20% and the median income was above the statutory limit.180 however, nevada government and two nevada representatives lobbied with the treasury department to get storey county approved as an opportunity zone.181 in order to designate storey county, the governor had to withdraw the designation of dayton as an opportunity zone even though dayton has a higher poverty rate than storey county.182 in dayton, the median income is $49,007 whereas in storey county, the median income is $65,508 and the poverty rate was only 2.6%. 183 storey county is also home to the tahoe-reno industrial center, where tesla, google, blockchains, switch and walmart have a large presence.184 in fact, the tesla gigafactory is located in the industrial center.185 while not necessarily an example of minority displacement, storey county demonstrates the perverse incentives legislators had to designate zones that benefitted investors as opposed to zones that were truly in need. more distressed areas were not only passed over, but also dropped from designation to accommodate tracts with more profitable outlooks. in the case of storey county, access to capital was previously prevalent, but investors now have the opportunity to receive tax benefits for their pre-planned projects. 180 damian paletta, after nevada gop push, treasury changed lucrative policy benefiting one county, wash. post. (june 22, 2018), https://www.washingtonpost.com/business/economy/after-nevada-gop-pushtreasury-quietly-changed-policy-benefiting-one-county/2018/06/22/d142acfc74c5-11e8-b4b7-308400242c2e_story.html?utm_term=.c6404c2329ab. 181 id; see also gelfond & looney, supra note 84, at 7. 182 see paletta, supra note 180. 183 see paletta, supra note 180; gelfond & looney, supra note 84, at 7. 184 see paletta, supra note 180. 185 see gelfond & looney, supra note 84, at 7. no. 10:1] denouncing the myth of place-based subsidies 95 3. new york metropolitan area new york new york city exemplifies the risks highlighted in washington, d.c. and storey county, illustrating both the potential for minority displacement and the subsidization of projects that were already in the pipeline. the following example focuses on amazon’s second headquarters (hq2), which will no longer be placed in new york, but raises critical issues with opportunity zone legislation. in november 2018, amazon announced that it would build its hq2 in both long island city, ny and arlington, va. however, in february of 2019, amazon subsequently withdrew the deal in long island city, citing major public backlash.186 amazon, as of march 2019, plans to continue its development in arlington, va, a city just outside of washington, d.c., in northern virginia.187 the amazon deal in new york, featured approximately $3 billion in tax subsidies for a company with $232 billion in new sales, and 11.2 billion in u.s. profits.188 at the time of the proposed deal, it appeared that only the long island city, new york location would fall within a designated opportunity zone. it is unclear whether the arlington, va tract will also receive benefits from being in the opportunity zone. while amazon faced large public criticism for a variety of reasons, many critics cited the tax subsidies available to amazon and the impact hq2 would have on affordable housing in long island city.189 due to the opportunity zone legislation, amazon would 186 update on plans for new york city headquarters, amazon: the amazon blog (feb. 14, 2019), https://blog.aboutamazon.com/company-news/updateon-plans-for-new-york-city-headquarters. 187 id. 188 amazon.com announces fourth quarter sales up 20% to $72.4 billion, amazon: press center (jan. 31, 2019, 4:01 pm), https:/ /press.aboutamazon.com/ news-releases/news-release-details/amazoncom-announces-fourth-quartersales-20-724-billion. 189 see anthony noto, here’s what amazon stands to gain in nyc incentives, n.y. bus. j. (june 22, 2018), https://www.bizjournals.com/ 96 columbia journal of race and law [vol. 10:1 have been eligible for additional tax breaks because the proposed tract falls within an approved opportunity zone.190 although the public will not know the impact amazon would have had on long island city, amazon’s selection of an opportunity zone census tract, embodies the critiques of the legislation’s proponents— opportunity zone legislation could subsidize and accelerate both gentrification and displacement.191 despite pulling out of the deal, amazon’s proposed headquarters provides a great example of a corporation’s ability to exploit the opportunity zone program at the risk of widespread displacement and decreased affordable housing. amazon’s eligibility is even more alarming because the proposed tract fell within a zone whose poverty level is lower than the required minimum of 20% but was likely eligible because it was a “contiguous tract.”192 contiguous tracts are eligible because of their proximity to a census tract with a high eligible poverty rate.193 contiguous tract authority was used sparingly by other states, but in new york, which is already experiencing displacement of longterm residents, the governor used his contiguous tract authority more than any of its peer states.194 therefore, any funding that may have been redirected from the amazon deal, would have been directed to an area that was not truly distressed. pairing the lack of distress and the potential for displacement, amazon hq2’s location exhibits the ability for opportunity zone legislation to become a subsidy of displacement. according to a 2018 census estimate, queens county has a median household income of approximately $62,000 and a 20.5% black/african-american population and 28% hispanic or newyork/news/2018/11/13/heres-what-amazon-stands-to-gain-in-nycincentives.html; economic innovation group, supra note 4. 190 murray, supra note 112. 191 id. 192 id. 193 id. 194 economic innovation group, supra note 4. no. 10:1] denouncing the myth of place-based subsidies 97 latinx.195 between 2005 and 2017, queens lost 22,700 black homeowners.196 the loss of black homeowners is attributed to rapidly increasing housing prices and a “tight” lending market, exhibiting the disparities in homeownership and shifts in neighborhood composition occurring in the area.197 one of the core issues with the amazon hq2 in new york is the particular census tract selection. eig notes that one of the most extreme outliers is tract 36081000100 in long island city, the proposed home of amazon hq2.198 prior to amazon’s selection of this tract, there was already ease in attracting private capital.199 hq2 may have caused property value to increase, along with the competition for new york homes from employees whose median incomes more than doubled the median income of $62,000.200 as home prices increased, renters may have been unable to afford their units, or owners unable to afford their property taxes. even if rising home prices did not directly displace black homeowners, the rising cost of living—such as the price of food and gas— leads to indirect displacement of residents who can no longer afford day-to-day activities in the area that they call home.201 another concern in long island city is the disproportionate impact rising home prices have had on black homeowners, who have seen the second lowest homeownership 195 u.s. census bureau, quick facts: queens county (queens borough), new york, https://www.census.gov/quickfacts/queenscountyqueensborough newyork (last visited nov. 27, 2019). 196 john baker et al, aftermath: affordable homeownership in new york city 12 (2018), https://s28299.pcdn.co/wp-content/uploads/2018/10/cny002 -ahsummit-report_v7_final_online.pdf. 197 id. at 12. 198 economic innovation group, supra note 4. 199 id. 200 see kori hale, housing consequences for amazon’s hq2, forbes (nov. 20, 2018) https://www.forbes.com/sites/korihale/2018/11/20/housing-consequencesfor-amazons-hq2/#5ebc95af3847. 201 id. 98 columbia journal of race and law [vol. 10:1 rate in this area and a decline in homeownership.202 these impacts include: high foreclosure rates, scarcity of home repair lending, and low rates of refinance lending for new york city black homeowners. 203 in fact, only 40% of black applicants were approved for refinance loans in 2017.204 these factors combined often result in loss of homeownership.205 another concerning aspect of the placement of amazon hq2 in this tract was the potential for amazon to take advantage of the tax subsidy to increase its property ownership. amazon could have deferred tax payments on capital gains for up-to-ten years by investing these gains into an "opportunity fund" that they could subsequently use to buy more property in the opportunity zone, which becomes eligible for the tax subsidy if it is invested in public infrastructure. amazon would have been eligible if it invested in public infrastructure, which according to its hq2 announcement, was a part of its plan.206 per amazon’s statement (emphasis added): the community will benefit from new york city providing funding through a payment in lieu of tax (pilot) program based on amazon's property taxes on a portion of the development site to fund community infrastructure improvements developed through input from residents during the planning process. amazon has agreed to donate space on its campus for a tech startup incubator and for use by artists and industrial businesses, and amazon will donate a site for a new primary or intermediary public school. the company will also invest in infrastructure improvements and new green spaces.207 202 id. 203 id. 204 id. 205 id. 206 noto, supra note, 189. 207 id. no. 10:1] denouncing the myth of place-based subsidies 99 as long island city, and previous legislation exhibit, local leadership and community engagement are imperative to the overall success and fulfillment of the program’s articulated goals. although amazon withdrew its plans to build in new york, the same concerns remain for the arlington, va location, and other wealthy developers in census tract 36081000100 in long island city. amazon exhibits the potential for the opportunity zone program to be used for the direct benefit of wealthy investors, corporations, or financiers at the expense of low-income, longterm, minority residents. amazon may have been able to directly subsidize the displacement of people of color for its own corporate benefit. what remains to be seen, and a central concern of the legislation, is how other companies may also take advantage of this program to defer their tax obligations while negatively impacting affordable housing. stakeholders should take these lessons and also monitor proposed corporate investments in storey county, nevada, and work to avoid re-segregative displacement that may be brewing in washington, d.c. 4. chicago, illinois chicago, illinois exemplifies the importance of legislators using the opportunity zone legislation as a remedy for race-based inequities in economic investment. in particular, the chicago area exhibits the impact the legislation could have if used improperly because the area already “has particularly stark economic disparities by race.”208 in cook county, illinois,209 legislators typically designated opportunity zones that had a population with an african-american majority. cook county designated tracts that averaged a high poverty rate of 41% and an 208 jason keller, et al., opportunity zones: understanding the background and potential impact in northeastern illinois, 1 profitwise news and views 1, 13 (2019). 209 cook county encompasses chicago and surrounding areas. 100 columbia journal of race and law [vol. 10:1 unemployment rate of 27%.210 the median home value is $140,000, and the average percentage of black residents is 85%.211 chicago and state leaders not only accounted for the technical requirements of opportunity zone legislation (poverty and unemployment rates), leaders also conducted a general population analysis.212 legislators also considered the existence of previous federal and state incentive programs in each area along with the economic development potential of each tract.213 as a result, the designated zones were concentrated across areas with “low labor force participation rates,” high unemployment rates, high poverty rates, and a high concentration of minorities.214 the designated tracts in cook county are truly distressed with only five tracts out of 181 flagged as experiencing significant socioeconomic change since 2000.215 these zones exhibit an opportunity to create economic growth and development for longterm, minority residents in cook county, illinois.216 legislators can help ensure that long-term minority residents realize the benefits of targeted opportunity zone investment through planning efforts that: improve accessibility to employment centers, increase the availability and access to living wage jobs, pair opportunity zones with workforce training programs, and foster collaboration between local stakeholders and public entities. despite the fact that illinois legislators targeted areas with greater need, the chicago metropolitan area is still at risk for opportunity zone investments to disproportionately favor wealthy investors.217 investment may still flow to areas already attracting the interest of developers because the capital gains 210 see misra, supra note 164; meixell jan. 2018, supra note 163, at 6. 211 see meixell jan. 2018, supra note 163, at 6. 212 keller, et. al, supra note 208, at 4. 213 id. 214 id. at 5. 215 see meixell jan. 2018, supra note 163, at 6. 216 keller, et. al, supra note 208, at 9. 217 keller, et. al, supra note 208, at 13. no. 10:1] denouncing the myth of place-based subsidies 101 incentive is most beneficial to investors if the area rapidly increases in value.218 therefore, it is important for local leaders to pair opportunity zone incentives with other local programs that target inclusive growth in marginalized areas and stimulate local needs.219 local leaders must continue to work with community stakeholders to develop strategies to direct investment projects to areas in need and enhance community benefit.220 although opportunity zones have already been selected and approved, local legislators, lawyers, and community stakeholders can work together to address potential displacement and protect affordable housing in the most vulnerable areas. otherwise, investors may target communities where other investors are present because the risk of loss is lower.221 this may increase gentrification and displacement, while other communities continue to struggle with access to capital.222 iv. part three: reconciling opportunity zones with maintaining affordable housing since tax incentives do not seem to encourage investors to invest in distressed communities, opportunity zone legislation may provide a subsidy to projects that investors would likely have invested in anyway. many of these investments may result in increased housing prices and displacement. to remedy these effects, legislators should reconcile the interests of residents that the legislation may displace with the articulated aims of the opportunity zone legislation.223 legislators do not have to 218 meixell jan. 2018, supra note 163, at 7. 219 keller, et. al, supra note 208, at 13. 220 meixell jan. 2018, supra note 163, at 9. 221 id. at 2-3. 222 id. at 3. 223 opportunity zones frequently asked questions, internal revenue serv. (oct. 22, 2019) https://www.irs.gov/newsroom/opportunity-zonesfrequently-asked-questions. the irs articulated the purpose of opportunity 102 columbia journal of race and law [vol. 10:1 abandon the program altogether but should instead pair the program with integrated, community-focused initiatives, nuanced approaches to each zone, and better reporting mechanisms. although place-based legislation may provide more economic opportunity to some individuals, legislators should consider mitigating harms with a more community-oriented approach. legislatures should try to implement guardrails that provide for “smart gentrification.” smart gentrification entails retaining local residents and increasing low-and middle-income house, which is not currently a feature of opportunity zone legislation. 224 a multi-layered, community-oriented solution would remedy the legislation and protect against community displacement.225 first, both congress and local government agencies should implement legislation, programs and incentives to increase urban entrepreneurship. second, local residents and community organizers should consider the utility of community land trusts in providing a long-term solution to affordable housing presservation. third, local legislators and community leaders should adopt litigation strategies that are often used in gentrification lawsuits to stall the rapid decline in affordable housing. a. defining desired outcomes of opportunity zone legislation and encouraging diversified community approaches opportunity zone legislation lacks a clear policy evaluation metric to monitor the program’s success and avoid the permanent and costly effects of an unevaluated program, extended for a longterm.226 currently, there is no statutory requirement for impact reporting, monitoring, or evaluation.227 congress should properly zones as “an economic development tool—that is, they are designed to spur economic development and job creation in distressed communities.” 224 see looney, supra note 122. 225 id. 226 id. 227 see meixell jan. 2018, supra note 163, at 13. no. 10:1] denouncing the myth of place-based subsidies 103 define what constitutes “success” for the opportunity zone legislation and advance measuring requirements that embody the need to track capital flows, monitor the program, and assess its impact.228 eig, in its joint testimony to congress, calls on states to make available to investors, researchers, and the general public, data related to the progress and results of opportunity zones.229 eig also argues that congress should develop comprehensive strategies and work with entrepreneurs, fund managers, business owners, developers, and community stakeholders to create an opportunity zone investment ecosystem.230 local governments have an important leverage to direct investment to areas in need.231 each zone requires a “tailored strategy.” for example, rapidly gentrifying areas may need efforts to preserve affordable housing: legislators and attorneys should leverage community benefit agreements, clts, and affordable housing requirements.232 alternatively, for areas that are not rapidly gentrifying, legislators may need to increase incentives to spark interest in “less attractive” neighborhoods.233 legislators should amend opportunity zones to take a more inclusive approach to community development. an integrated community development plan could preserve affordable housing and allow for new commercial and residential development. similar approaches exist across major metropolitan areas, including washington, d.c., and new york, ny.234 for example, one research section of the pratt institute’s community development 228 see theodos july 2018, supra note 113. 229 see lettieri, supra note 89 at 8. 230 see economic innovation group, supra note 160. 231 see misra, supra note 164. 232 id. 233 id. 234 downtown brooklyn’s detour: the unanticipated impacts of rezoning and development on residents and businesses. pratt ctr. for community dev. (july 2008), https://prattcenter.net/sites/default/files/prattcenter-downtown _brooklyns_detour.pdf. 104 columbia journal of race and law [vol. 10:1 group recommends legislators in new york to conduct a more accurate displacement risk analysis and develop an antidisplacement policy with the goal of no net loss of affordable housing.235 if not, opportunity zone appreciating tracts, such as the former amazon long island city tract, may result in the displacement of many local residents and small businesses.236 eig, in its joint testimony to congress, acknowledged that the tax subsidy, alone, is insufficient to uplift distressed communities but instead encourages states to supplement the program with workforce development programs and less restrictive land use regulations.237 however, legislators should take a slightly different integrative approach that focuses on entrepren-eurship, small business development, and localized gain across residents. a community-oriented approach mitigates the loss of affordable housing, while revitalizing neighborhoods. a community integrated approach should include supporting both local businesses and local residents to ensure their economic growth and independent sustainability. further, legislators should support clts and affordable housing protections while investing in community development, instead of programs that reinforce burdens on land use that have a negative impact on low-income residents. similarly, weaver argues for urban social citizenship, which empowers people to invest in their communities instead of simply providing tax breaks for high income investors.238 the government could integrate communities through improving entrepreneurial development in distressed communities. one approach to this is to encourage lawmakers to reduce regulatory hurdles, publish materials in languages spoken by immigrant 235 jen becker & elena conte, flawed findings: how nyc’s approach to measuring displacement risk fails communities. pratt ctr. for community dev. (sept. 18, 2019) https://prattcenter.net/research/flawedfindings. 236 downtown brooklyn’s detour, supra note 234. 237 see lettieri, supra note 89, at 7. 238 see weaver may 2018, supra note 27. no. 10:1] denouncing the myth of place-based subsidies 105 groups, and help facilitate entrepreneurial networks.239 transactional lawyers may assist in community uplift through supporting urban entrepreneurship. expanding access to urban enterprise, including transactional lawyering and counseling, may help improve the sustainability of urban entrepreneurship and affordable housing communities.240 as such, law firms have recently increased their transactional pro bono programs to support urban entrepreneurs and upcoming small businesses.241 integrative community planning avoids the risk of detached outside investors that benefit from the tax cut, while promoting displacement. combining the resources of lawyers with small business development in urban communities, both sustains community development and encourages economic revitalization from within the community. b. increasing access to community land trust protections community land trusts (“clts”) institute various legal structures in order to mitigate against displacement of community members, especially those with low incomes. clts provide a more offensive strategy, using property law concepts paired with transactional approaches to hold land in a trust for members of the community. clts are a bifurcated ownership system, which often entails community ownership of the land, typically through a nonprofit structure, paired with local residents that often hold the deed to the home and long-term leases.242 each clt community is set up differently, however, one key aspect includes the clts 239 susan r. jones, comment, supporting urban entrepreneurs, law, policy, and the role of lawyers in small business development, 30 w. new eng. l. rev. 71, 79 (2007). 240 id. 241 id. at 77. 242 see sisson, supra note 144. 106 columbia journal of race and law [vol. 10:1 ability to retain the right to purchase control of the property at an affordable price.243 using the non-profit structure, many clts benefit are able to preserve their existence via various funding sources.244 further, clts allow communities to maintain property at an affordable cost, even throughout the transfer of property across different parties.245 clts are cropping up across the united states and internationally, as a tool to address homelessness and displacement.246 to date, at least fifteen states have enacted at least a partial statutory provision regarding clts.247 one of the major benefits of incentivizing clt formation and establishing initiatives that protect their efforts is the ability for clts to become a long-term solution to affordable housing.248 clts help curb speculation on housing prices and ensure permanent affordable housing.249 clt homeowners significantly outperformed the market during the great recession. in 2017, new york city took a major step in addressing its affordable housing problem by enacting clt enabling 243 see sisson, supra note 144. 244 regional plan association for manhattan community board 11, east harlem affordable housing under threat: strategies for preserving rent regulated units. 1, 3 (aug. 2012) [hereinafter rpa]. 245 this effort is specific to east harlem but is widely applicable to areas where the availability of affordable housing is at risk, especially in new york city. see id. 246 nyc community land initiative, https://nyccli.org/the-problem/ (last visited mar. 4, 2019). 247 these states include california, connecticut, florida, georgia, illinois, iowa, maryland, minnesota, nevada, north carolina, south carolina, south dakota, texas, virginia, wyoming. see andrew decker, community land trusts and state legislation: a model act to enable this affordable housing tool, 26 j. affordable housing 489, 491 (2018). 248 see rpa, supra note 244, at 3-4. 249 deyanira del rio & andy morrison, city views: nyc needs equitable economic development, not the amazon deal. city views. (nov. 28, 2018) https://citylimits.org/2018/11/28/cityviews-nyc-needs-equitable-economicdevelopment-not-the-amazon-deal/. no. 10:1] denouncing the myth of place-based subsidies 107 legislation.250 further, the new york state attorney general’s office also helped direct settlement funds to clt efforts across new york state.251 many of these efforts can and should be replicated across the country, especially in high density areas where affordable housing is sharply declining, such as new york and washington, d.c. the availability of affordable housing can be protected on a long-term basis through redirecting the capital gains funds to initiatives such as clts, and providing legislation that protects, promotes, and endorses clt formation. as the risk of the decline of affordable housing increases with the opportunity zone legislation, lawmakers should be vigilant in their efforts to protect some of the nation’s most vulnerable communities. c. implementing litigation strategies from gentrification lawsuits another way to mitigate the potential for displacement and decreased affordable housing is through defensive strategies that involve commencing litigation against developers, city councils, and other government agencies. while i believe that the best way to protect affordable housing is through offensive strategies as detailed above, i also acknowledge that offensive strategies primarily require legislative buy-in and support. therefore, while lawyers and community members work to ensure affordable housing protections are in place, lawyers may also implement some defensive strategies. these strategies, while promising, are less likely to prevail. numerous litigation strategies have been levied against gentrification, displacement, and affordable housing decline, including the use of zoning laws, the federal housing act (fha), and state constitutions. lawyers should work closely with community organizations to develop theories that minimize the 250 id.; new york city, pub. l. no. 2018/067, (defining clts and allowing for the creation of regulatory agreements with clts.) 251 del rio & morrison, supra note 249. 108 columbia journal of race and law [vol. 10:1 decline of affordable housing as a result of the opportunity zone tax subsidy. for example, in december 2018, zoning laws were cited in a complaint against new york city to challenge the construction of luxury apartments in the lower east side area in manhattan, which is home to many minority and immigrant families.252 the lawsuit challenges the approval of the development as a “minor modification,” claiming that the project violates the zoning law.253 the use of zoning laws as a litigation tool helps preserve and create more affordable housing before displacement begins.254 lawyers could also use inclusionary zoning litigation to challenge displacement of minority residents by white residents.255 alternatively, another powerful tool available to lawyers is the use of the fha. the fha may be used to preserve affordable housing and challenge the building of luxury apartments to avoid displacing local residents.256 the fha was passed in 1968 and bans discrimination in the rental and sale of housing, including in the lending process.257 community leaders could challenge development projects as having a discriminatory impact under §3604258, advancing the claim that 1) the legis-lation results in an adverse impact on racial minorities or 2) the legislation is using 252 jake offenhartz, city council files lawsuit against ‘irrational’ approval of les skyscrapers, gothamist (dec. 7, 2018), http://gothamist.com /2018/ 12/07/two_bridges_towers_lawsuit.php. 253 petition-complaint, the council of new york v. the department of city planning of new york, no. 452302, 2018. 254 see hannah weinstein, fighting for a place called home: litigation strategies for challenging gentrification, 62 ucla l. rev. 794, 794 (2015). 255 see id. at 813; hallmark developers, inc. v. fulton cty., 466 f.3d 1276 (11th cir. 2006). 256 see weinstein, supra note 254, at 794. 257 id. at 823; 42 u.s.c. §3601-31 (2019). 258 see 42 u.s.c. §3604(b), making it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” no. 10:1] denouncing the myth of place-based subsidies 109 the guise of development to re-segregates the area.259 due to the racial impact of the opportunity zones on displacing low-income communities to benefit wealthy, predominantly white investors, challengers could bring an fha challenge to halt new projects in minority-populated distressed areas under either theory. one possible avenue to bring an fha claim is through a re-segregation theory, showing the trend of white residents displacing long-term, minority residents; therefore, having a segregative effect on urban neighborhoods.260 unfortunately, an argument that opportunity zones will have a segregative effect on an entire city will likely fail as an fha claim. however, the segregative effect approach may be useful in cases specifically claiming that certain census tracts are prime for re-segregation, such as the census tract selected in the proposed hq2 long island city deal, or historically black census tracts targeted for redevelopment in washington, d.c.261 litigators could show that in predominantly black areas in washington, d.c. the population of white residents increased by 10% over 10 years.262 the current approach to affordable housing is unsustainable as the opportunity zone tax incentive encourages capital investments into low-income areas, which lead to redevelopment, but lack protections to secure access to affordable housing.263 the expirat-ion of affordable housing provisions highlights this point. a large percentage of 259 see weinstein, supra note 254, at 823; see also hallmark developers, inc. v. fulton cty., 466 f.3d at 1276 (finding that housing became “unavailable” within the meaning of fha as a result of zoning. a showing of a significant discriminatory effect suffices to demonstrate a prima facie violation of the fha). the court in hallmark also found that a plaintiff could demonstrate discriminatory effect through a showing of 1) segregative effect 2) housing more restrictive for members of a protected group than for persons outside of the group. id. at 1286; see also 42 u.s.c. §3601. 260 see weinstein, supra note 254, at 796. 261 brown v. artery, 654 f. supp. 1106, 1108-09 (d.d.c. 1987) (finding unlawful the conversion of low rent housing units to high rent units based on the consequent displacement of black and hispanic tenants). 262 see weinstein, supra note 254, at 807. 263 see kennedy, supra note 88. 110 columbia journal of race and law [vol. 10:1 affordable housing units are located in urban areas and are also targets of redevelopment.264 alternatively, litigators may rely on the adverse impact prohibition, which may be useful if an affordable housing building is subject to removal and likely has an adverse impact on racial groups, given the disproportionate number of minority residents in affordable housing communities.265 the joint testimony reports that the selected opportunity zone tracts are more densely populated with minority residents than the racial demographics reported as a national average. however, this may cut against the argument, since developers claim the need to provide resources to diverse and distressed communities. lawyers could work to permanently secure affordable housing as a u.s. or state constitutional right. although a far stretch at the moment, lawmakers providing large tax subsidiaries for developers in distressed urban areas, must recognize the direct impact this has on low-income, minority residents. due to the disproportionate racial impact of decreased affordable housing, a constitutional challenge may be brought under the equal protection clause.266 however, a supreme court case found that there was no constitutional right to “dwellings of any particular quality.”267 while this does not preclude a finding that afford-able housing is a right guaranteed under the u.s. constitution, this holding seems to narrow the ability to make a compelling case under federal law. therefore, lawyers aiming to make a particular case for affordable housing, should first look to state constitutions. for example, the new jersey mount laurel cases clarified that municipalities have 264 see weinstein, supra note 254, at 798. 265 see brown v. artery, 654 f. supp. at 1106, (the court defined “adverse impact” as a result of a “practice or policy that has a disproportionate effect upon the minorities within the group to which the policy is applied.” the court further discussed that there was support for a claim of discriminatory intent if the negative impact of the development would fall almost entirely on black and hispanic tenants) id. at 1119. 266 see weinstein, supra note 254, at 814. 267 lindsey v. normet, 405 u.s. 56, 74 (1972). no. 10:1] denouncing the myth of place-based subsidies 111 “an affirmative duty to ensure lowand moderate-income housing.”268 further, new york state courts have found that their constitution requires zoning regulations that do not exclude lowincome residents; however, an explicit protection of affordable housing was rejected.269 litigation for protection of affordable housing under the state constitutions or inclusionary zoning laws enforcement are practical strategies for addressing a threat to affordable housing. within the context of litigation under fha and constitutional challenges, litigators should seek to have opportunity zone legislation include and acknowledge affordable housing as a necessary aspect of general welfare. however, this approach is subject to potential “backlash litigation,” which may question the validity of zoning laws under the equal protection clause, due 268 see weinstein, supra note 254, at 814; the court in s. burlington cty. naacp v. mount laurel, concluded that “every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. more specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality's fair share of the present and prospective regional need therefor.” 336 a.2d 713, 724 (1975), (“mt. laurel”). in a subsequent ruling, the court further clarified that “‘affirmative’ in the mount laurel rule, suggests that the municipality is going to do something, and ‘realistic opportunity’ suggests that what it is going to do will make it realistically possible for lower income housing to be built. satisfaction of the mount laurel doctrine cannot depend on the inclination of developers to help the poor. it has to depend on affirmative inducements to make the opportunity real.” s. burlington cty. naacp v. mount laurel, 456 a.2d 390, 442 (1983) (“mount laurel ii”). 269 see weinstein, supra note 254, at 514 n.y.2d 939, 949-50 (app. div. 1987); suffolk hous. servs. v. brookhaven, 70 n.y.2d 122(1987), finding a reduction in affordable housing has a negative impact on residents. however, the court also noted that mt. laurel i and ii are the law of new jersey and not new york, further citing new york’s history of producing lowand moderateincome housing. in suffolk housing services v. brookhaven, the court explicitly noted that “zoning is a legislative task,” declining to interfere in the alleged housing shortage. suffolk hous. servs. v. brookhaven, 70 n.y.2d 122 (1987). 112 columbia journal of race and law [vol. 10:1 process clause, or takings clause, especially without a direct finding of affordable housing as a fundamental right.270 therefore, litigators should be careful before bringing weak claims and risking the protections that currently exist. overall, the best approach to opportunity zone legislation rests with community investment, local legislative oversight, and affordable housing protections. opportunity zones, while having the potential to promote investment, also may lead to a reverse urban sprawl of low-income residents. v. conclusion opportunity zone legislation is a revamped approach to enterprise zones and empowerment zones. if history is any indication, the legislation will have little positive effect on affordable housing or low-income economic uplift. 271 opportunity zone legislation has the potential to achieve a “variety of positive outcomes,” including: revitalizing downtowns, boosting local entrepreneurship, addressing rural development, and commercializing tech around local knowledge centers.272 while the articulated goals are positive, the structure of the legislation risks wide-spread displacement of minority localresidents. congress and local legislators should implement zonespecific strategies, as detailed above, in order to ensure local community engagement and support of local residents. although place-based tax incentives have not achieved wide-spread success, shortcomings of previous legislation should encourage legislators to adopt more community-oriented approaches and specific parameters to measure success. lawyers and community stakeholders are essential to ensuring the success of implementing social entrepreneurship focused legislation, or alternatively protecting existing residents from displacement and affordable housing decline. careful consideration should be taken to 270 id at 815. 271 see weaver may 2018, supra note 27. 272 see lettieri, supra note 89, at 8. no. 10:1] denouncing the myth of place-based subsidies 113 uplift low-income communities, instead of providing a windfall to wealthy investors at the expense of existing residents. i. introduction ii. part one: legislative history and analysis of opportunity zones a. enterprise zones b. empowerment zones/enterprise communities c. new markets tax credit program d. analysis of opportunity zone legislation 1. what is an opportunity zone? 2. opportunity zones and affordable housing iii. part two: intersection between opportunity zones and affordable housing a. opportunity zone critiques b. impact on affordable housing c. illustrative examples of opportunity zones 1. washington, d.c. 2. storey county, nevada 3. new york metropolitan area new york 4. chicago, illinois iv. part three: reconciling opportunity zones with maintaining affordable housing a. defining desired outcomes of opportunity zone legislation and encouraging diversified community approaches b. increasing access to community land trust protections c. implementing litigation strategies from gentrification lawsuits v. conclusion columbia journal of race and law vol. 12 july 2022 no. 1 re-envisioning child well-being: dismantling the inequitable intersections among child welfare, juvenile justice, and education kele m. stewart i. racialized outcomes, poverty and america’s hierarchy .................633 a. racialized youth outcomes .......................................................633 b. the role of poverty ....................................................................635 c. hierarchies .................................................................................636 ii. the child welfare, education, and juvenile justice systems .........637 a. the family regulation system .................................................638 b. the juvenile justice system .....................................................643 c. the education system ...............................................................645 iii. the compounding effect of interaction between the three systems .............................................................................................648 a. pipelines that exacerbate harm ...............................................648 b. trauma is punished rather than treated ...............................651 c. education is disrupted and denied ...........................................652 d. community-level effects ..........................................................653 iv. towards opportunities for children and families to thrive ...........654 a. adopt a holistic approach to helping children and families......................................................................................655 b. keep families together .............................................................658 c. support families within their communities ...........................660 d. invest in schools as a place for learning and healing .............662 v. conclusions .......................................................................................666  professor, university of miami school of law. thank you to research assistants alyssa bardison, chelsea johnson, and estefania lalinde. 2022] re-envisioning child well-being 631 twenty years after shattered bonds,1 dorothy roberts’ indictment that the family regulation system polices, disrupts, and restructures black families and communities remains urgent.2 black families remain overrepresented in foster care with enshrined disparate treatment and outcomes.3 black children are more likely to be removed from their homes, and their longer stays in foster care are characterized by placement instability, overly restrictive placements, the risk of abuse and exploitation, and inadequate mental health and other services.4 black children also have worse educational outcomes than even other children in foster care, are over-referred to the juvenile justice system, and are more likely to age out of foster care to face disturbing future outcomes.5 given this dismal record, if our goal is to maximize the well-being of black children, the last thing we should do is place them in foster care. rather than improving life chances, foster care involvement fuels the cycle of poverty, undereducation, criminal justice involvement, housing instability, and poor health outcomes plaguing low-income black communities. the family regulation system interacts with two other systems marked by stark racial inequity—education and juvenile justice.6 these systems, individually and in concert, adopt approaches that result in and 1 see generally dorothy e. roberts, shattered bonds: the color of child welfare (2002) (describing the adverse effects of the family regulation system on black children and families). 2 as suggested by dorothy roberts, this piece uses the term “family regulation system” when referring to the judicial and administrative network of agencies historically referred to as the “child protection” or “child welfare” system. roberts conceptualized the term to more accurately reflect the surveillance, policing, and social control—rather than protection or welfare—that the system imposes on families. see, e.g., dorothy roberts, abolishing policing also means abolishing family regulation, imprint (june 16, 2020, 5:26 am) [hereinafter roberts, abolishing policing], https://imprintnews.org/child-welfare2/abolishing-policing-also-means-abolishing-family-regulation/44480 [https://perma.cc/k3g4-nqwg]. 3 see, e.g., oronde miller et al., changing course: improving outcomes for african american males involved with child welfare systems 1–3 (ctr. for the study of soc. pol’y ed., 2014) (urging action on behalf of african american young men and boys who are disproportionately affected by contact with the family regulation system); john fluke et al., research synthesis on child welfare disproportionality and disparities, in disparities and disproportionality in child welfare: analysis of the research 1, 5 (ctr. for the study of soc. pol’y ed., 2011) (reviewing literature that addresses racial disparities in the family regulation system). native american children are also overrepresented in foster care, while latinx children are underrepresented nationally but overrepresented in certain states. see child. bureau, u.s. dep’t of health & hum. servs., foster care statistics 2019, at 9–11 (2021). 4 fluke et al., supra note 3, at 23–42 . 5 after aging out of care, they suffer poor outcomes as adults, including low college attainment and job earnings, and high rates of homelessness and incarceration. joseph p. ryan, mark f. testa, & fuhua zhai, african american males in foster care and the risk of delinquency: the value of social bonds and permanence, 87 child welfare 115, 131–32 (2008) (studying the effects of foster parent–foster child attachment, commitment, and permanence on the risk of future delinquency for african american children). 6 gloria ladson-billings & william f. tate iv, toward a critical race theory of education, 97 tchrs. coll. rec. 47 (1995) (explaining educational inequities through a critical race theory lens); donna m. bishop & charles e. frazier, race effects in juvenile justice decision-making: findings of a statewide analysis, 86 j. crim. l. & criminology 392 (1996) (describing racial disparities within the juvenile justice system). 632 colum. j. race & l. [vol. 12:630 compound structural denials of opportunity.7 each system uses seemingly neutral policies and practices that obfuscate the role of race and class and operate in particularly pernicious ways in the same poor communities of color. the mechanisms by which they disadvantage black children share a common pattern. black children are pathologized and labeled as defective and deviant, subjected to harsh and traumatizing treatment, and separated from their families and communities—which taken together destroys relationships, opportunities for healthy development, and educational access. the intersecting operation of these systems contributes to racial subordination by exacerbating trauma and leaving children without the educational and social-emotional skills to break out of the cycle of poverty, and further depletes neighborhoods with concentrated poverty of the human capital to be resilient. it is important to illuminate the mechanisms by which these systems intersect to entrench structural inequality, so that they can be dismantled. this symposium spotlights the burgeoning call for abolition of the family regulation system premised on the idea that the primary function of the system is punitive control of families of color and that meaningful reform is impossible.8 the carceral and family regulation systems are deeply interconnected,9 and roberts and others advocate for abolition of all these systems in favor of “radically different ways of meeting families’ needs.”10 the goals articulated by prison abolitionists coalesce with child welfare abolitionist calls that envision healthy communities where families have the resources to thrive. as we work towards that vision, it is important to get a more holistic understanding of black children in the family regulation system, within the context of their communities and the multiple, inter-connected systems that work together to limit opportunities. this piece unpacks how the family regulation system magnifies harm to black children through its interactions with the juvenile justice and education systems. by exploring the structural mechanisms through which these systems work together to compound disparity and perpetuate inequity, this piece provides further evidence of the family regulation system’s failings and contributes to thinking about how we help children and families in the communities where they live, rather than through punitive practices. 7 david dante troutt, trapped in tragedies: childhood trauma, spatial inequality, and law, 101 marq. l. rev. 601, 605–08 (2018) (analyzing the link between childhood trauma and structural inequality). 8 erin m. cloud, toward the abolition of the foster system, scholar & feminist online (2019), https://sfonline.barnard.edu/unraveling-criminalizing-webs-building-policefree-futures/toward-the-abolition-of-the-foster-system/ [https://perma.cc/hg4e-e7uq] (calling for abolition of the family regulation system because it targets and marginalizes black individuals and families just as the criminal legal system does); dorothy e. roberts, prison, foster care, and the systemic punishment of black mothers, 59 ucla l. rev. 1474, 1474 (2012) [hereinafter roberts, the systemic punishment of black mothers] (arguing that the prison and foster care systems work together to punish black mothers). 9 annette r. appell, protecting children or punishing mothers: gender, race, and class in the child protection system, 48 s.c. l. rev. 577 (1997) (discussing how coercive state intervention, justified through a rhetoric of protection, acts along gender, race, and class bias to punish women and harm children); roberts, the systemic punishment of black mothers, supra note 8, at 1476. 10 roberts, abolishing policing, supra note 2. 2022] re-envisioning child well-being 633 this analysis is consistent with an ecological perspective that situates the child in their full environment, including their family, school, and neighborhood.11 the ecological perspective considers the reciprocal relationship between the child and their environment as well as the interlocking systems that produce the negative outcomes that black children experience. the other theoretical frame emerges from scholarship on the ways state structures and cultural forces create racial hierarchies that endure for generations.12 to contribute to the child welfare abolition discussion, this piece extends analysis beyond the family regulation system to understand how systems created by the state relegate poor children of color to the lowest rung in society, rather than helping children and families. this piece will then offer solutions grounded in a vision of dismantled child welfare and juvenile justice systems, well-resourced educational systems, and strengthened communities with the capacity to foster the healthy development of children. part i will discuss the racialized outcomes in each system and the relevant features of the architecture by which u.s. society is organized around hierarchies. part ii will describe each system’s role in perpetuating disparity, focusing on the common themes of isolation, trauma, and the use of stereotypes and bias to dehumanize children. part iii will explore the harmful intersections among the child welfare, education, and juvenile justice systems underscoring the ways that interaction between these systems compounds harm. part iv offers some community-centered strategies that account for intersecting systems and advance the move towards abolition. i. racialized outcomes, poverty and america’s hierarchy a. racialized youth outcomes there is a system of state control of entire communities that has for decades operated to extinguish life chances for black youth. the family regulation and juvenile justice systems coercively remove children from their families and communities and exacerbate trauma through myriad harmful practices. at the same time, the education system serves as a funnel to both systems and a co-facilitator in the under-education of black children. the harmful force of these systems is concentrated in impoverished black neighborhoods. these three institutions function very differently depending on where a person lives and, in low-income black communities, help to reproduce inequality. as david troutt summarized, “personal opportunities are often mediated by place, . . . because of the 11 this ecological approach considers the social environment in which a health problem exists, not only to identify contributing factors and harmful elements, but also to preserve or strengthen the positive elements of a child’s environment. barbara bennett woodhouse, ecogenerism: an environmentalist approach to protecting endangered children, 12 va. j. soc. pol’y & l. 409, 424–27 (2005); josh gupta-kagan, toward a public health legal structure for child welfare¸ 92 neb. l. rev. 897, 924 (2014). 12 see generally isabel wilkerson, caste: the origins of our discontents (2020) (describing the hidden caste system that structures american society along several axes of hierarchy); nancy e. dowd, reimagining equality: a new deal for children of color (2018) (recognizing the structural inequality that creates hierarchies among children and arguing for a developmental equality model to unravel these hierarchies). 634 colum. j. race & l. [vol. 12:630 differences in rules and resources by which key institutions operate.”13 a host of unequal outcomes results from inequitable application of law and institutional policies, practices, and norms. each system independently produces racialized outcomes. black children are overrepresented in both the child welfare and juvenile justice systems, and disproportionately bear the brunt of the negative outcomes endemic to both systems.14 children who age out of foster care, more than a third of whom are black nationally, suffer negative outcomes as adults, including low college attainment, job earnings, housing instability, and incarceration.15 the story is similar with juvenile justice, where black children are overrepresented at every decision point. black children are more likely to be arrested and charged, to receive more severe sentences, to be placed in secure detention facilities, and to stand trial as adults.16 youth involved with the juvenile justice system have lower high school graduation rates and higher unemployment rates than the general population.17 race is also a salient factor in educational outcomes. black children perform worse than their white peers on a number of achievement measures, including standardized tests, high school graduation rates, and dropout rates.18 these harms collide for black children in foster care. black children in foster care are at higher risk for juvenile justice involvement.19 black children in both the foster care and juvenile justice systems perform below their peers on a range of achievement measures.20 being in the family regulation and juvenile justice systems also increases the risk for continued criminal justice involvement in adulthood. within two years of leaving care, a quarter of foster care alumni have contact with the criminal justice 13 troutt, supra note 7, at 605. 14 wanda j. blanchett, disproportionate representation of african american students in special education: acknowledging the role of white privilege and racism, 35 educ. rscher. 24 (2006) (analyzing the potential causes of and remedies to address the disproportionate representation of african american students in special education); miller et al., supra note 3. 15 child. bureau, u.s. dep’t of health & hum. servs., comparing outcomes reported by young people at ages 17 and 19 in nytd cohort 1, at 3–5 (nat’l youth in transition database, data brief no. 4, 2014). 16 annie e. casey found., reducing youth incarceration in the united states 2 (2013); off. of juv. just. & delinq. prevention, u.s. dep’t of just., 2019 annual report 30 (2019). 17 richard mendel, annie e. casey found., no place for kids: the case for reducing juvenile incarceration, inst. of educ. sciences 12 (2011), https://files.eric.ed.gov/full text/ed527944.pdf [https://perma.cc/v99n-bemc]; diana tate vermeire, natalia merluzzi & laura john ridolfi, balancing the scales of justice: an exploration into how lack of education, employment, and housing opportunities contribute to disparities in the criminal justice system 1 (2010). 18 for the 2018–2019 school year, the national adjusted cohort graduation rate was eighty percent for black children and eighty-two percent for latinx children, compared to eighty-nine percent for white children. nat’l ctr. for educ. stats., u.s. dep’t of educ., public high school graduation rates 2 (2021), https://nces.ed.gov/programs/coe/ indicator/coi [https://perma.cc/4hxe-2x4a] [hereinafter nces, public high school graduation rates]. 19 j.j. cutuli et al., from foster care to juvenile justice: exploring characteristics of youth in three cities, 67 child & youth servs. rev. 84, 85, 90–91 (2016). 20 ryan, testa, & zhai, supra note 5, at 116–17. 2022] re-envisioning child well-being 635 system.21 a recent national survey of the prison population found that eighty percent of incarcerated adults reported being in foster care.22 the three systems interact to create worse outcomes for black children. b. the role of poverty poverty is a significant factor in the inequitable outcomes experienced by black children.23 much of the research on child welfare disproportionality seeks to understand the reasons for disproportionality. this is an oversimplification, but there are essentially two schools of thought—one that views disproportionality as a function of poverty,24 and another that centers racism as the cause.25 the poverty theory suggests that more black children are in the system because more black children are poor and maltreated.26 while it is important to understand the complexities of causality, the framing of the debate has undermined efforts to address disproportionality in child welfare. stakeholders in the family regulation system can lament disproportionality but console themselves that they are saving black children from the conditions in their neighborhood and, moreover, that the family regulation system has no power to address structural problems in black communities. the debate around poverty misses the point that the prevalence of concentrated poverty in black communities is itself the result of structural racism.27 that narrative also negates the role of vague neglect statutes that equate poverty with neglect. sixty percent of child welfare cases are for neglect.28 scholars theorize that the family regulation system looks the way 21 what is the foster care-to-prison pipeline?, juv. l. ctr. (may 26, 2018), https://jlc.org/news/what-foster-care-prison-pipeline [https://perma.cc/56vw-panw]. 22 unacceptable facts and stories, foster care 2.0, http://www.fostercare2.org/ ask-the-pros-2 [https://perma.cc/xue3-hy5r] (last visited feb. 28, 2021). 23 “a number of theories seek to explain crime and delinquency as a function of poverty, all of which have the common theme that the pressures associated with economic deprivation may significantly impair an individual’s ability to conform to social rules and behavioral expectations,” miriam stohs, racism in the juvenile justice system: a critical perspective, 2 whittier j. child & fam. advoc. 97, 112 (2003) (further pointing to interrelated problems of “chronic unemployment, inadequate living conditions, poor schools, a climate of violence, inadequate family structure, and racism”). 24 see alan j. dettlaff & reiko boyd, racial disproportionality and disparities in the child welfare system: why do they exist, and what can be done to address them?, 692 annals am. acad. pol. & soc. sci. 253, 255–56 (2020) (exploring racial disparities in the family regulation system as a function of poverty). 25 see hyunil kim & brett drake, child maltreatment risk as a function of poverty and race/ethnicity in the usa, 47 int’l. j. epidemiology 780, 782–83 (2018) (finding that racial disproportionality in child maltreatment is driven by racial disparities in poverty). 26 compare id. at 782–83, and dettlaff & boyd, supra note 24, at 255–26, with ten common child welfare misconceptions: essential reading for child welfare commentators and policymakers, child welfare monitor (nov. 1, 2021), https://childwelfaremonitor.org/ 2021/11/01/ten-common-child-welfare-misconceptions-essential-reading-for-child-welfarecommentators-and-policymakers/ [https://perma.cc/r537-ajus] (debunking common misconceptions about child abuse, child neglect, and child welfare programs which produce policies that harm children). 27 dowd, supra note 12, at 18. 28 child. bureau, u.s. dep’t of health & hum. servs., child maltreatment 2018, at ii (2018), https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2018.pdf [https://perma.cc/5jec-awj6]. 636 colum. j. race & l. [vol. 12:630 it does due to the moral construction or deficit model of poverty.29 these frames, which drive policy, explain poverty based on individual failure, rather than structural causes. as khiara bridges noted, these individual explanations of poverty—that people are lazy, irresponsible, promiscuous, feel entitled to government benefits—are primarily ascribed to people of color, whereas structural explanations are accepted to explain white poverty in places like the rust belt or coal country.30 situating child welfare disproportionality within a place-based and intersecting regulatory context that accounts for multiple state actors doing harm in the same poor black communities is critical to addressing the root, structural causes that ensnare families in the family regulation system. c. hierarchies nancy dowd theorizes that “hierarchies among children dramatically impact their development.”31 she explains: beginning before birth, and continuing during their progression from birth to age 18, structural and cultural barriers separate and subordinate some children, while they privilege others. the hierarchies replicate patterns of inequality along familiar lines, particularly those of race, gender, and class, and the intersection of those identities. these barriers and co-occurring support of privilege for other children emanate from policies, practices and structures of the state, including health, policing, and juvenile justice.32 dowd proposes developmental equality as a model to identify the structural components of inequality created and sustained by the state and to compel the state to dismantle, reorganize, and reorient those systems.33 in caste, isabel wilkerson illuminates more generally how the united states operates with a hidden caste system, a rigid hierarchy of human rankings for which race is a signal.34 caste is the infrastructure for 29 see khiara m. bridges, the moral construction of poverty, in the poverty of privacy rights 37 (2017) (describing the rhetorical link between poverty and morality); khiara m. bridges, reproducing race: an ethnography of pregnancy as a site of racialization 10 (2011) (analyzing pregnancy as a “racially salient event” that reproduces poverty). 30 khiara m. bridges, peggy cooper davis & dorothy roberts, elie hirschfeld symposium on racial justice in the child welfare system transcript, 44 n.y.u. rev. l. & soc. change 129, 133–34 (2019). scholars have suggested that the “deficit model of poverty”—individual deficiency on the part of undeserving poor people—also explains the punitive nature of public assistance policies that have shrunk the social safety net and imposed strict time limits and work mandates. see, e.g., lynn d. lu, restorative relationships and “radical help”: reimagining welfare-to-work beyond the market-family divide, 50 u. balt. l. rev. 157, 162 (2020); marie failinger, a truly good work: turning to restorative justice for answers to the welfare-to-work dilemma, 15 geo. j. on poverty l. & pol’y 209, 213–15, 229 (2008). 31 nancy e. dowd, children’s equality: the centrality of race, gender, and class, 47 fordham urb. l. j. 231, 231 (2020). 32 id. 33 dowd, supra note 12, at 3. 34 a caste system is defined as “an artificial construction, a fixed and embedded ranking of human value that sets the presumed supremacy of one group against the presumed inferiority of other groups on the basis of ancestry and often immutable traits . . . 2022] re-envisioning child well-being 637 economic, political, and social interactions that “relies on stigmatizing those deemed inferior to justify the dehumanization necessary to keep the lowest-ranked people at the bottom and to rationalize the protocols of enforcement.”35 dehumanization is one of the processes by which marginalized groups are excluded from the “norms of humanity” in order to justify inhumane treatment.36 scholars have applied the theory of otherness— that some humans are alien—to explain why black parents are perceived and treated as the “other” in the criminal justice, child welfare, and public benefits contexts.37 black children also confront strong negative stereotypes that directly damage their development and serve as the basis for implicit bias and the othering process against them.38 this process of dehumanization also serves to normalize the treatment and life outcomes of marginalized groups. state policies and practices that permit the perpetuation of cultural norms infused with bias and discrimination translate into “state complicity in a culture of denigration, fear and subordination.”39 it helps to explain why we have tolerated the inequitable outcomes in our juvenile justice, child welfare, and education systems for such a long time, and have failed to muster the political will to create real change. intergenerational replication of race and class-based subordination also occurs through the many mechanisms that privilege families who are white and from higher socioeconomic means. ii. the child welfare, education, and juvenile justice systems the child welfare, juvenile justice, and education systems deploy mechanisms that function in three similar and significant ways. first, they isolate black children and destroy familial and other relationships, in addition to the experiences that contribute to healthy child development. family separation, placement in the most restrictive settings like locked psychiatric facilities, segregation in self-contained classrooms or alternative schools, and juvenile justice confinement are examples of the practices that disproportionately harm black children. second, these systems pathologize and label black children as defective or disruptive as part of a process that justifies placement instability, restrictive [that] are ascribed life-and-death meaning in a hierarchy favoring the dominant caste whose forebears designed it.” wilkerson, supra note 12, at 17. 35 id. at 17, 19–20. 36 see, e.g., id. at 141–42; w. e. b. du bois, the souls of black folk 5 (1903) (introducing the notion of “double-consciousness,” the awareness that difference not only exists but is held in contempt and created as a tool of domination and subordination). 37 deborah ahrens, not in front of the children: prohibition on child custody as civil branding for criminal activity, 75 n.y.u. l. rev. 737, 738 n.3 (2000) (drawing on foucault and post-modern intellectuals); frantz fanon, black skin, white masks 18 (charles lam markmann trans., 1967) (reflecting on the lived experience of blackness in an anti-black world); kenneth b. nunn, the child as other: race and differential treatment in the juvenile justice system, 51 depaul l. rev. 679, 680–81 (2002) (analyzing racial disparities in the perception and treatment of african american children). 38 nunn, supra note 37, at 704–06; kristin henning, the challenge of race and crime in a free society: the racial divide in fifty years of juvenile justice reform, 86 geo. wash. l. rev. 1604, 1628–29 (2018) [hereinafter henning, the challenge of race and crime]. 39 dowd, supra note 12, at 43. 638 colum. j. race & l. [vol. 12:630 placements, zero tolerance discipline measures, school pushout, and harsh juvenile justice penalties.40 third, despite policies intended to protect children, these systems fail to provide nurturing, developmentally appropriate, or trauma-informed care, and inflict new trauma on children.41 while the policies driving racial disparities in individual systems have been explored elsewhere,42 this part highlights some similarities in the approaches used by all three systems, focusing on individual system mechanisms that are key sites for intersection with other systems. a. the family regulation system almost every policy pillar of the current family regulation system has been theorized to drive disproportionality and the destruction of black families. mandatory reporting laws in every state require professionals and neighbors to report suspected abuse and neglect, subjecting black families to hyper-surveillance.43 vague statutes define neglect based on a parent’s inability to meet their child’s basic needs, such as food, shelter, and access to medical care, allowing intervention for poverty-related reasons and biased decision-making.44 the 1997 passage of the adoption and safe families act (“asfa”) mandates termination of parental rights in short time frames, while simultaneously incentivizing adoptions.45 inequitable 40 jada phelps moultrie, reframing parental involvement of black parents: black parental protectionism 1–7 (may 11, 2016) (ph.d. dissertation, indiana university) (exploring the relationships between education, racism, and parental involvement); subini annamma, deb morrison, & darrell jackson, disproportionality fills in the gaps: connections between achievement, discipline, and special education in the school-to-prison pipeline, 5 berkeley rev. educ. 53, 53–54 (2014) (describing how school systems constrain student achievement through racial disparities in discipline, assignments, and juvenile justice). 41 trauma is the result of acute or chronic exposure to physically or mentally adverse experiences that produces on-going impairment to an individual’s functioning. traumatic experiences include exposure to domestic or community violence, loss of loved ones, family disruptions due to deportation, incarceration or the foster care system, systemic racism and discrimination, and the extreme stress of lacking basic necessities like food or shelter. samhsa’s trauma & just. strategic initiative, samhsa’s concept of trauma and guidance for a trauma-informed approach 8 (2014). 42 see, e.g., roberts, abolishing policing, supra note 2; bridges, the moral construction of poverty, supra note 29, at 37 (exploring the rhetorical link between poverty and immorality); tina lee, catching a case: inequality and fear in new york city’s child welfare system 4–5 (2016) (analyzing the effects of the family regulation system and definitions of child neglect on poor women of color). 43 off. on child abuse & neglect, u.s. dep’t of health & hum. servs., child neglect: a guide for prevention, assessment, and intervention 15–16 (2006); kelley fong, getting eyes in the home: child protective services investigations and state surveillance of family life, 85 am. socio. rev. 610, 611 (2020) (arguing that the mandatory reporting system reinforces inequality by facilitating state surveillance over marginalized families); angela olivia burton & angeline montauban, toward community control of child welfare funding: repeal the child abuse prevention and treatment act and delink child protection from family well-being, 11 colum j. race & l. 641, 678 (2021). 44 off. on child abuse & neglect, supra note 43; patricia turner hogan & saufong siu, minority children and the child welfare system: an historical perspective, 33 soc. work 493, 494 (1988); tanya a. cooper, racial bias in american foster care: the national debate, 97 marq. l. rev. 215, 226–29 (2013). 45 adoption and safe families act of 1997, pub. l. no. 105-89, 111 stat. 2115 (codified as amended in scattered sections of 42 u.s.c.); martin guggenheim, how racial politics led directly to the enactment of the adoption and safe families act of 1997—the worst law affecting families ever enacted by congress, 11 colum. j. race & l. 713, 716– 2022] re-envisioning child well-being 639 funding and services, and heightened licensing requirements, have either excluded relatives as substitute caregivers or subjected their placements to intense state scrutiny.46 despite the goal of protecting children, these and other policies are implemented inequitably so that black families do not get the services and assistance they need. family separation is the most damaging aspect of the family regulation system. children need positive attachments and a sense of belonging for healthy psychological, emotional, and social development. the act of removal is itself an extraordinarily traumatic event that has long-term emotional and psychological consequences.47 ongoing separation from parents, siblings, and extended family, or ultimate termination of parental rights, creates toxic stress, destroys essential attachments, and causes grief and loss. children experience lasting symptoms such as anxiety, emotional distress, behavioral problems, depression, and lifelong health consequences.48 “when a child is expected to be physically a part of a new family while she is still psychologically a part of her biological family, it can cause her distress and lead her to believe she doesn’t belong to any family.”49 children benefit from maintaining family relationships, even flawed or dysfunctional ones, which explains why many children in foster care yearn to go home despite everything.50 the family regulation system uses removal as its default intervention to allegations of abuse creating an institutional culture that minimizes the violence of removal.51 there are a number of state actions that make the trauma of family separation even worse. child protective services (“cps”) separates siblings when it can’t find a placement together, another source of loss and trauma.52 black children from large sibling groups, or families with older, 27 (2021) (describing the racial politics that led to the enactment of the adoption and safe families act); christina white, federally mandated destruction of the black family: the adoption and safe families act, 1 nw. j. l. & soc. pol’y 303, 311–12 (2006). 46 christina a zawisza, protecting the ties that bind: kinship relative care in florida, 23 nova l. rev. 455, 470–77 (1998) (recognizing the benefits of placing children with relative caretakers and critiquing florida’s emphasis on surveillance over caretakers receiving state benefits). 47 shanta trivedi, the harm of child removal, 43 n.y.u. rev. l. & soc. change 523, 531–32 (2019) (advocating for consideration of the trauma of removal in every child welfare decision). 48 id. at 549–50; colleen kraft, aap statement opposing separation of children and parents at the border, am. acad. of pediatrics (may 8, 2018) https://www.aap.org/ en/news-room/news-releases/aap/2018/aap-statement-opposing-separation-of-children-andparents-at-the-border/ [https://perma.cc/45zr-4q5w] (advocating against separation of families at the border because family separation can cause irreparable harm to children); christopher m. layne, ernestine c. briggs & christine a. courtois, introduction to the special section: using the trauma history profile to unpack risk factor caravans and their consequences, 6 psych. trauma: theory, rsch., prac., & pol’y 1, 2–3 (2014) (explaining the adverse, long-term outcomes that result from traumatic childhood experiences). 49 trivedi, supra note 47, at 533. 50 id. at 528. 51 id. at 557–62. 52 see generally armeda stevenson wojciak, lenore m. mcwey & jeffery waid, sibling relationships of youth in foster care: a predictor of resilience, 84 child. & youth servs. rev. 247, 247 (2018). 640 colum. j. race & l. [vol. 12:630 harder-to-place siblings in the group, are especially likely to be separated.53 black parents are more likely to have parental rights terminated, permanently severing legal ties even in situations where there is no prospective adoptive parent or where statistics show adoption is unlikely. this class of legal orphans are among those more likely to age out without the relationships that sustain us through adulthood.54 upon removal, children are also disconnected from their communities and from a network of relationships to childhood friends, churches, neighborhoods, and other supportive adults. removal from their community also impacts a child’s sense of identity and belonging, which are important for child development. problems with identity development may be exacerbated if a child is moved to a family or community of a different race or religion.55 this disconnection from the relationships and community experiences that so many take for granted as essential to a “normal” childhood contributes to feelings of sadness, loss, isolation, and anxiety. rather than finding refuge to heal, children, especially adolescents of color with intersectional identities, are bounced from placement to placement without receiving consistent or effective mental health treatment. the well-documented harms of the foster care experience fall disproportionately on black children.56 children in foster care experience physical and sexual abuse at alarming rates, and are at high risk for commercial sexual exploitation.57 studies document racial disparities in the provision of mental health services.58 black children are also more likely to experience inappropriate placement settings and placement 53 family visits are more likely to occur if the permanency goal is reunification, as parents’ attorneys may seek to enforce legally mandated visits, but these are much less likely to be enforced if the permanency goal changes to adoption. 54 see erin rebecca singer, stephanie cosner berzin & kim hokanson, voices of former foster youth: supportive relationships in the transition to adulthood, 35 child. & youth servs. rev. 2110, 2111 (2013). 55 see mary elizabeth collins & judith c. scott, intersection of race and religion for youth in foster care: examining policy and practice, 98 child. & youth servs. rev. 163, 166 (2019). 56 dettlaff & boyd, supra note 24, at 254–55. 57 mich. dep’t of hum. servs. foster care & adoption program, the child.’s rsch. ctr. & casey fam. programs, improving child safety and well-being in foster and relative placements: findings from a joint study of foster child maltreatment 27–52 (2014) (analyzing maltreatment rates for children in foster care); nat’l coal. for child prot. reform, foster care vs. family preservation: the track record on safety and well-being 1–2 (2021) (describing the increased risk of maltreatment for children removed from their families). 58 ann f. garland, john a. landsverk & anna s. lau, racial/ethnic disparities in mental health service use among children in foster care, 25 child. & youth servs. rev. 491, 493–97 (2003); lionel d. scott jr. & larry e. davis, young, black, and male in foster care: relationship of negative social contextual experiences to factors relevant to mental health service delivery, 29 j. adolescence 721, 725 (2006); julie s. mccrae & richard p. barth, using cumulative risk to screen for mental health problems in child welfare, 18 rsch. on soc. work prac. 144, 144 (2008); bonnie t. zima et al., behavior problems, academic skill delays and school failure among school-aged children in foster care: their relationship to placement characteristics, 9 j. child & fam. stud. 87, 98–101 (2000) (analyzing whether foster children’s behavioral and academic problems are correlated with placement characteristics). 2022] re-envisioning child well-being 641 instability.59 black children are disproportionately likely to be in congregate care or in the most restrictive placement settings, such as locked psychiatric facilities.60 placement instability, which is more likely to occur the longer a child is in foster care, is a significant factor associated with social, behavioral, and academic problems.61 school age children in foster care experience an average of 3.38 placements in different foster homes,62 with a higher average for children of color and lgbtq youth.63 it is wellrecognized even in the law that “[t]hese frequent moves—whereby children are ‘passed from one foster home to another with no constancy of love, trust or discipline’—have tangible negative consequences and results in worse outcomes for children.”64 for some children, this perpetuates a vicious cycle. being moved from a home reinforces the idea that the child is unlovable and worsens a child’s trauma and behaviors, making it even more difficult for the child to connect with other caregivers. children who experience frequent placement changes are more likely to develop emotional and behavioral problems than children in stable foster care settings.65 as discussed further in part iii, infra, living in congregate care and going through placement instability are major predictors of both juvenile justice involvement and academic and disciplinary problems in school. there is an often-masked racialized dynamic to the experience of children with placement instability. a complaint filed in h.g. v. carroll on behalf of approximately 2,000 children in foster care in miami and neighboring monroe county, alleges that, due to an extreme shortage in foster homes, children bounce between different types of placement while their mental health needs go unmet.66 according to this complaint, between 59 reiko boyd, african american disproportionality and disparity in child welfare: toward a comprehensive conceptual framework, 37 child. & youth servs. rev. 15, 23 (2014). 60 see generally lindsey palmer et al., correlates of entry into congregate care among a cohort of california foster youth, 110 child. & youth servs. rev. 1, 4–5 (2020) (finding that older age, black race, and behavioral, emotional, or mental health concerns are more predictive of movement into congregate care placement). 61 see gloria hochman, anndee hochman & jennifer miller, the pew comm’n on child. in foster care, foster care: voices from the inside 3 (2004) (outlining the human costs of the child welfare system and foster care); carolien konijn et al., foster care placement instability: a meta-analytic review, 96 child. & youth servs. rev. 483, 488–89, 494–95 (2019) (examining factors associated with and affecting placement instability); susy villegas et al., educational outcomes for adults formerly in foster care: the role of ethnicity, 36 child. & youth servs. rev. 42, 48 (2014) (finding that placement instability in foster care predicts future low educational outcomes). 62 nat’l working grp. on foster care & educ., education is the lifeline for youth in foster care 1–2 (2011) 63 gerald p. mallon, nina aledort & michael ferrera, there’s no place like home: achieving safety, permanency, and well-being for lesbian and gay adolescents in out-ofhome care settings, 81 child welfare 407, 410 (2002). 64 trivedi, supra note 47, at 545 (quoting santosky v. kramer, 455 u.s. 745, 789 (1982) (rehnquist, j., dissenting)). 65 theodore p. cross et al., why do children experience multiple placement changes in foster care? content analysis on reasons for instability, 7 j. pub. child welfare 39, 54 (2013). 66 complaint at 1–4, h.g. v. carroll, no. 4:18-cv-100-ws-cas, 2018 u.s. dist. lexis 232879 (n.d. fla. feb. 20, 2018). 642 colum. j. race & l. [vol. 12:630 january 2016 and june 2017, over 400 children endured ten or more placements, at least 185 children lived in twenty or more places, over fifty children lived at in at least fifty places, and twenty-seven children were bounced around between eighty and 140 placements during their total time in state care.67 while the complaint did not raise racial disproportionality, the majority of the children with the highest level of placement instability were children of color.68 when children in foster care display behavioral problems, symptoms of trauma, or norm-violating behavior, they are often labeled as troublesome, hostile, or pathological.69 these are children who do not have severe mental health disorders, but for whom the policy response is often punitive and extreme, such as psychotropic medication, placement in a locked psychiatric facility, or juvenile justice involvement.70 in a recent example, the florida legislature considered a proposal to place children who had refused a placement offered by cps into a secure juvenile detention center.71 the head of the local privatized cps agency described the children this way: “they do whatever they want to do; they smoke drugs, they commit petty crimes; they fight with our staff. they break up the building and we just have to stand up and watch them.”72 this narrative blamed the children for their behavior but did not acknowledge the system’s failure to nurture or provide basic stability for these children. the thirty-nine florida children who refused placements in the prior years and were the impetus for the proposal had an average of thirty-six placements before they first refused a placement.73 race was never explicitly discussed during the proposal, but a subsequent study revealed that the children at issue in the proposal were overwhelmingly youth of color.74 the narrative about the out-of-control children were coded, stereotypical narratives. 67 id. at 42. 68 other class action lawsuits have challenged the state’s failure to create stability or provide appropriate mental health treatment for children in foster care. see generally rosie d. v. baker, nos. 19-1262, 19-1767 (1st cir. may 4, 2020); braam v. washington, 81 p. 3d 851 (wash. 2003). 69 see lois a. weithorn, envisioning second-order change in america’s responses to troubled and troublesome youth, 33 hofstra l. rev. 1305, 1314–30 (2005) (challenging the legal system’s conventional, harmful response to troubled and troublesome youth); miller et al., supra note 3, at ii (reporting that young black men in the family regulation system report that “their behavior is often misunderstood and based on negative stereotypes that fail to account for the trauma in their lives”). 70 see lois a. weithorn, mental hospitalization of troublesome youth: an analysis of skyrocketing admission rates, 40 stan. l. rev. 773, 773–75 (1988) (arguing that increases in adolescent admission rates to psychiatric units are a result of increased use of hospitalization for youth who do not suffer from severe mental illnesses). 71 christopher o’donnell, problem foster kids could be locked up in ‘secure’ facility under new plan pushed by tampa bay child welfare agency, tampa bay times (sept. 10, 2019), https://www.tampabay.com/news/hillsborough/2019/09/09/problem-fosterkids-could-be-locked-up-in-secure-facility-under-new-plan-pushed-by-tampa-bay-childwelfare-agency/ [https://perma.cc/f5y3-a9jf]. 72 id. 73 id. 74 robert latham, 54 pages about 49 kids: the children who refused placement in hillsborough county, robertlathamesq.org (jan. 10, 2020), https://robertlathamesq. org/54-pages-about-49-kids-the-children-who-refused-placement-in-hillsborough-county [https://perma.cc/agq6-wfkr]. 2022] re-envisioning child well-being 643 b. the juvenile justice system despite its goal of rehabilitation, the juvenile justice system disproportionately steers youth of color on a path to high school dropout and later criminal justice involvement. since the 1970s, legislative initiatives in many states abandoned the rehabilitative model in favor of one based on accountability, retribution, and deterrence. these reforms included mandatory transfer to adult court, mandatory minimums, and determinate sentencing. during the 1990s, states moved to make the juvenile justice system even tougher by allowing juvenile courts to impose more punitive sanctions and transferring more youth to adult courts.75 this “get tough on juvenile crime” approach was driven by a public perception and political rhetoric that juvenile crime posed a widespread threat to public safety. indeed, “[c]entral to the development of the myth of the juvenile justice system in crisis was the concurrent development of the racialized myth of the ‘superpredator.’”76 this “superpredator,” presented as a new kind of juvenile delinquent who was immoral, remorseless, and extremely violent, relied on explicitly racist imagery and stereotypes so that it became code for young black males. in 1988, congress amended the juvenile justice and delinquency prevention act (“jjdpa”) to, among other things, require states to address issues of disproportionate minority confinement.77 subsequent amendments made it a core requirement of the jjdpa and expanded funding and the scope of mandated data collection.78 while this mandate has improved data collection and spurred state-level initiatives, the juvenile justice system remains highly racialized today.79 for youth of color, there are reduced opportunities for diversion, high rates of detention, disparities in use of out-of-home placement, and a lack of permanency planning. disproportionality begins with increased policing at schools and in communities.80 most youth arrests are for status offenses like truancy, ungovernability, running away, alcohol possession, or other offenses that would not be crimes for adults.81 the other major category of youth offenses are low-level property offenses, drug possession, probation violations, and public order offenses.82 generally, the violent 75 ellen marrus & nadia n. seeratan, what’s race got to do with it? just about everything: challenging implicit bias to reduce minority youth incarceration in america, 8 j. marshall l. j. 437, 448–74 (2015) (demonstrating the racial disparities in increased punitive measures for children in the juvenile justice system). 76 nunn, supra note 37, at 711. 77 juvenile justice and delinquency protection act of 1974, pub. l. no. 93-415, 88 stat. 1109 (amended by anti-drug abuse act of 1988, pub. l. no. 100-690, 102 stat. 4181). 78 heidi m. hsia, george s. bridges & rosalie mchale, off. of juv. just. & delinq. prevention, u.s. dep’t of just., ncj no. 201240, disproportionate minority confinement: 2002 update 9 (2002); 21st century department of justice appropriations act, pub. l. no. 107-273, 116 stat. 1758 (2002). 79 kristin henning, the rage of innocence: how america criminalizes black youth 6–13 (2021) [hereinafter henning, the rage of innocence] (examining how black youths’ behavior results from constant racial policing, discrimination, and trauma). 80 marrus & seeratan, supra note 75, at 479–80. 81 joseph b. tulman & douglas m. weck, shutting off the school-to-prison pipeline for status offenders with education-related disabilities, 54 n.y. l. sch. l. rev. 875, 879– 85 (2009) (describing how meeting special education needs may help reduce status offense charges for minors). 82 marrus & seeratan, supra note 75, at 456. 644 colum. j. race & l. [vol. 12:630 crime arrest rate and the general arrest rate have fallen dramatically over the past few decades, but the overrepresentation of black children has remained constant.83 white youth are more likely to be diverted out of the formal juvenile process, through a referral to a community organization for services, participation in a diversion service, or an informal citation instead of prosecution, whereas black children are more likely to be formally charged and pushed deeper into the system.84 juvenile court judges are more likely to confine black youth in secure detention facilities both preand post-adjudication, than to offer less restrictive alternatives like home detention or probation.85 black youth are also held in confinement for longer periods.86 youth in the delinquency system also experience multiple placement changes as they may be transferred among pre-trial detention centers and multiple postdisposition facilities. in confinement, youth experience poor conditions including systemic violence, abuse, excessive use of isolation and/or restraints, and inadequate health care or educational opportunities.87 black children are also overrepresented among those transferred to adult criminal court where they are more likely to be confined for longer periods without receiving treatment and rehabilitation, thereby increasing their chances of recidivism.88 many children in the juvenile justice system have disabilities or a history of adverse childhood experiences; not only are these psychological and emotional needs not met, but these experiences also make matters worse. implicit racial bias and stereotypes explain why black children receive harsher treatment in the juvenile justice system.89 studies have found evidence of implicit racial bias among juvenile justice decisionmakers including police officers, probation officers, judges, prosecutors and defense attorneys.90 these stakeholders, who wield broad discretion in the juvenile justice system, showed across several studies negative views of black youth, including views that they appear more adult-like, more 83 id. at 464. 84 id. at 460–61; see also nat’l ctr. for juv. just. & off. of juv. just. & delinq. prevention, u.s. dep’t of justice, juvenile offenders and victims: 2014 national report 175–81 (2014); off. of juv. just. & delinq. prevention, u.s. dep’t of just., how ojjdp is working for youth justice and safety 21 (2012) (outlining the office of juvenile justice and delinquency prevention’s (“ojjdp”) work in addressing racial disparities in the juvenile justice system). 85 christopher hartney & linh vuong, nat’l council on crime & delinq., created equal: racial and ethnic disparities in the us criminal justice system 3 (2009); black children five times more likely than white youth to be incarcerated, equal just. initiative (sept. 14, 2017), https://eji.org/news/black-children-five-times-more-likelythan-whites-to-be-incarcerated/ [https://perma.cc/5dkq-a3e9]. in 2019, “forty-one percent of youths in placement were black, even though black americans comprise only 15% of all youth across the united states.” sent’g project, black disparities in youth incarceration 1 (2021), https://www.sentencingproject.org/publications/black-disparitiesyouth-incarceration/ [https://perma.cc/8d7c-mch2]. 86 hartney & vuong, supra note 85, at 12. 87 mendel, supra note 17, at 5–6, 22–25. 88 marrus & seeratan, supra note 75, at 469–70. 89 see id. at 482–83; nunn, supra note 37, at 688; bishop & frazier, supra note 6, at 407–08. 90 henning, the challenge of race and crime, supra note 38, at 1628–29. 2022] re-envisioning child well-being 645 culpable, and more deserving of punishment.91 kevin nunn theorized that the “othering” of black children, particularly black males, accounts for the disparities we see in the juvenile justice system.92 black children, viewed as coming from dysfunctional families headed by single mothers, have been the subject of centuries of racial stereotypes.93 these stereotypes and the systemic dehumanization of black children allow delinquency courts to justify the enrollment of children in restrictive settings. c. the education system in today’s global economy, a quality education positively impacts all aspects of adult life,94 and the academic achievement gap drives economic inequality.95 race and socio-economic status are among the most significant indicators of test scores, graduation rates, and other educational measures.96 with a public education system funded largely by local community wealth and enduring residential segregation, black children are more likely to attend schools with fewer resources.97 the educational system systematically alienates, punishes, and ultimately pushes out students based on intersections of race, class, gender, sexual orientation, and disability.98 federal and state education funding policies 91 id. at 1630–31. in studies which administered implicit association tests to different stakeholders in the justice system, police officers, juvenile probation officers, judges, and defense attorneys all showed that they had negative perceptions of black youth and associated them with criminality. studies have also linked prosecutorial decisionmaking with racial and ethnic disparities in case outcomes. marrus & seeratan, supra note 75, at 492–95. 92 nunn, supra note 37, at 682. 93 roberts, the systematic punishment of black mothers, supra note 8, at 1493. 94 higher educational levels are linked to higher incomes, lower unemployment, fewer chronic health problems, longer life expectancy, and even increased likelihood of marriage. anna zajacova & elizabeth m. lawrence, the relationship between education and health: reducing disparities through a contextual approach, 39 ann. rev. pub. health 273, at 3–5 (2018) (assessing the relationship between education and health). 95 emma garcia & elaine weiss, econ. pol’y inst., education inequalities at the school starting gate 1 (2017) (finding that social class is one of the most significant predictors of low educational success). 96 nces, public high school graduation rates, supra note 17; ladsonbillings & tate, supra note 6, at 59–60. 97 ellen marrus, education in black america: is it the new jim crow?, 68 ark. l. rev. 27, 27–29 (2015) (describing how and why black children face diminished access to quality education). 98 amy j. petersen, exploring intersectionality in education: the intersection of gender, race, disability, and class 170–215 (dec. 2006) (ph.d. dissertation, university of northern iowa) (studying the educational experiences of black women labeled with a disability and from a disadvantaged social class). the term “push out” refers to school system practices that lead to students leaving school without graduating. these include unwelcoming school climates, harsh discipline policies, and referral to alternative schools and ged programs with inadequate educational resources. advancement project, test, punish, and push out: how zero tolerance and high-stakes testing funnel youth into the school-to-prison pipeline 4–5 (2010). in addition to the zero-tolerance movement, there are two policy trends that incentivize schools to push out problem or lowachieving students. first, accountability laws require schools to do high stakes achievement tasks and impose consequences for failing to meet specified criteria. second, supreme court jurisprudence weakening students’ constitutional rights has resulted in minimal or illusory procedural protections for school suspensions and made it easier for schools to provide prosecutors with evidence that would otherwise be inadmissible. jason p. nance, dismantling the school-to-prison pipeline: tools for change, 48 ariz. st. l. j. 313, 328–31 (2016). 646 colum. j. race & l. [vol. 12:630 do not provide adequate resources to serve students with acute needs.99 with race as a central factor, special education and school discipline are among the structural mechanisms that contribute to disparate treatment and poor academic outcomes for black children. students in special education and students with school discipline records, who overlap substantially, perform poorly in school and are less likely to graduate and matriculate to higher education. the school system labels students as disabled, disruptive, or troublesome as one step in a process likely to lead to academic delays, disengagement, dropout, and juvenile justice involvement.100 as explained in part iii, schools are more likely to label students in foster care with one or more of these categories, subjecting them to the mechanisms that contribute to the most severe outcomes. the federal individuals with disabilities education act (“idea”) guarantees students with disabilities a free and appropriate public education in the least restrictive setting.101 the impetus for the idea’s precursor was brown v. board of education’s ideal that access to education is of central importance.102 while idea provides beneficial individualized services and procedural protections to children with disabilities, the benefits of special education have not been equitably distributed on the basis of race and social class.103 youth with individual education plans (“iep”) are more likely to be from low-income backgrounds.104 a disproportionate number of black students are referred for special education services and isolated in separate classrooms, rather than integrated into mainstream classes.105 students of color are also more likely to be labeled with emotional behavior disorder (“ebd”), a category that creates stigma with long-term effects on higher education and employment prospects.106 this is also the most common disability category 99 nance, dismantling the school-to-prison pipeline, supra note 98, at 317. 100 annamma, morrison, & jackson, supra note 40, at 58; thurston domina, andrew penner & emily penner, categorical inequality: schools as sorting machines, 43 ann. rev. socio. 311, 319–20 (2017). 101 individuals with disabilities education act, 20 u.s.c. § 1400. 102 in 1975, congress passed the initial federal special education law, education for all handicapped children, pub. l. no. 94-142, 89 stat. 773, in the wake of two groundbreaking cases alleging that children with education-related disabilities received no educational services from the school system. pa. ass’n for retarded child. v. pennsylvania, 343 f. supp. 279 (e.d. pa. 1972) (challenging pennsylvania legislation that restricted the education available to students with disabilities); mills v. bd. of educ., 348 f. supp. 866 (d.d.c. 1972) (relying on brown v. bd. of educ., 347 u.s. 483 (1954), to rule that the exclusion of children with disabilities violated equal protection). 103 blanchett, supra note 14, at 25. 104 nat’l ctr. for educ. evaluation & reg’l assistance, preparing for life after high school: the characteristics and experiences of youth in special education 10 (2018). an iep is a written plan to document the goals, needs, and services for children determined eligible for services under idea. assistance to states for the education of children with disabilities, 34 c.f.r. § 300.22 (2004). 105 alfredo j. artiles, sherman dorn & aydin bal, objects of protection, enduring nodes of difference: disability intersections with “other” differences, 1916 to 2016, 40 rev. rsch. educ. 777, 783–806 (2016) (analyzing the history of disability practices and recognizing disproportionality along racial lines). 106 james m. patton, the disproportionate representation of african americans in special education: looking behind the curtain for understanding the solutions, 32 j. special educ. 25, 26 (1998); david s. mandell et al., ethnic disparities in special education labeling among children with attention-deficit/hyperactivity disorder, 16 j. emotional & behav. disorders 42, 43, 45 (2008). 2022] re-envisioning child well-being 647 for children in foster care. children with an ebd label often do not get the mental health or classroom accommodations they need, are at greater risk for dropping out of school, and have alarming overlaps with the juvenile delinquency system. hence, it is not the label itself, but rather the failure to appropriately implement special education laws, especially in schools with large minority populations, that contributes to inequitable educational outcomes.107 school discipline policies are also applied inequitably and contribute to poor academic outcomes.108 black students are more likely than their white peers to be targeted with school disciplinary actions, even for similar behaviors.109 students in special education and foster care— groups with racial disparities—are more likely to be referred for disciplinary actions and more likely to be suspended or expelled than their peers.110 these disciplinary measures are linked to poor academic achievement.111 they also fuel the school-to-prison pipeline—the conceptual interplay among education and criminal justice policies that pushes students out of school and into the criminal justice system.112 schools adopt zero-tolerance policies that impose harsh consequences such as suspensions, expulsions, referrals to law enforcement, and school-based 107 tulman & weck, supra note 81, at 877–78. 108 laurence parker & david o. stovall, actions following words: critical race theory connects to critical pedagogy, 36 educ. phil. & theory 167, 168–69 (2004) (recognizing the importance of critical race theory in education, including in racial disparities in school discipline); edward w. morris & brea l. perry, the punishment gap: school suspension and racial disparities in achievement, 63 soc. probs. 68, 68–69, 70–71 (2016) (arguing that racial disparities in punishment are a critical factor in explaining racial achievement gaps). 109 sarah d. sparks & alyson klein, discipline disparities grow for students of color, new federal data show, educationweek (apr. 24, 2018), https://www.edweek.org/leadership/discipline-disparities-grow-for-students-of-color-newfederal-data-show/2018/04 [https://perma.cc/7j5k-2qlh]; na’ilah suad nasir et al., dirt on my record: rethinking disciplinary practices in an all-black, all-male alternative class, 83 harv. educ. rev. 489, 499–507 (2013) (using the setting of an all-black, all-male classroom to reframe the nature of discipline in schools); dalun zhang et al., minority representation in special education: 5-year trends, 23 j. child & fam. studs. 118, 118–20 (2014) (investigating racial disparities in special education); annamma, morrison, & jackson, supra note 40, at 58–59. black children are sixteen percent of the student population, but represent thirty-two percent of in-school suspensions, thirty-three percent of out-of-school suspensions, thirty-four percent of expulsions, thirty-one percent of school-based arrests, and twentyseven percent of referrals to law enforcement. civ. rts. data collection, u.s. dep’t of educ., data snapshot: school discipline 2, 6 (2014). 110 sid cooley, suspension/expulsion of regular and special education students in kansas: a report to the kansas state board of education 4 (1995); russell j. skiba, reece l. peterson, & tara williams, office referrals and suspension: disciplinary intervention in middle schools, 20 educ. & treatment child. 295, 295 (1997) (finding a pattern of disproportionality in the administration of school discipline based on race, gender, low academic performance, and disability). 111 skiba, peterson, & williams, supra note 110. 112 sarah e. redfield & jason p. nance, school-to-prison pipeline task force, the american bar association joint task force on reversing the schoolto-prison pipeline preliminary report 7–9 (2016) (investigating potential remedies for the school-to-prison pipeline); see generally johanna m. wald & daniel j. losen, deconstructing the school-to-prison pipeline (2003) (analyzing how and why the school-to-prison pipeline operates). 648 colum. j. race & l. [vol. 12:630 arrests for violation of school rules.113 derived from the war on drugs, zerotolerance policies in schools were initially intended for the most serious offenses but have evolved to ensnare students on a path to law enforcement involvement even for typical adolescent behavior.114 these policies, when implemented in a context with low expectations and engagement, low achievement, poor or lacking school relationships, and over-classification in special education, results in students being funneled into the juvenile justice system.115 black students and students with disabilities are overrepresented in the school-to-prison pipeline. they are more likely to be referred to law enforcement or to face other harsh penalties (suspension, expulsion) that increase the likelihood of juvenile justice intervention. as explained below, children in foster care are disproportionately likely to encounter the complex mechanisms of the school-to-prison-pipeline. iii. the compounding effect of interaction between the three systems each system independently contributes to racial inequality. for children who experience the family regulation system, the interaction among the three systems leaves them worse off and helps to reproduce hierarchy. here i focus on three ways the systems interact to exacerbate harm for children, especially black children. a. pipelines that exacerbate harm foster care involvement increases the likelihood children will be funneled into the juvenile justice system, either directly from a foster care setting or via the school system. the midwest evaluation of adult functioning of former foster youth found that more than half of children aging out were incarcerated by their mid-twenties.116 the harms of the foster care experience, as discussed in part ii.a, increase the likelihood that children in foster care become entangled in the school-to-prison pipeline. students of color, with disabilities, and in foster care are disproportionately targeted for school disciplinary actions. the negatives experienced by each group individually are compounded where a student is in more than one group, e.g., students of color who are also students with disabilities who are also students in foster care. one study, for example, found that youth in foster care with disabilities had lower 113 sebastian castrechini, educational outcomes for court-dependent youth in san mateo county, john w. gardner ctr. youth & their cmtys. 3 (2009); jason p. nance, over-disciplining students, racial bias, and the school-to-prison pipeline, 50 u. rich. l. rev. 1063, 1065 (2016) [hereinafter nance, over-disciplining students] (analyzing increases in extreme disciplinary measures which are imposed disproportionately along racial lines); andrea g. zetlin, lois a. weinberg, & nancy m. shea, seeing the whole picture: views from diverse participants on barriers to educating foster youths, 28 child. & schs. 165, 167–71 (2006) (discussing the academic challenges that foster youths face). in one study, almost one-third of youth in foster care for more than two years had experienced a suspension and 4.1% had been expelled. nat’l working grp. on foster care & educ., supra note 62, at 11. 114 nance, over-disciplining students, supra note 113, at 1064; the gun free schools act of 1994, 20 u.s.c. 7961, for example, was originally adopted to promote school safety by declaring zero tolerance for weapons in school. 115 redfield & nance, supra note 112, at 7. 116 mark e. courtney et al., midwest evaluation of the adult functioning of former foster youth: outcomes at age 26, at 90–93 (2011). 2022] re-envisioning child well-being 649 academic performance than youth in foster care or youth with disabilities alone.117 educators’ expectations are critical for student learning, the quality of instruction, and the approach to punishment.118 if educators have low expectations, it becomes a self-fulfilling prophecy, and students underperform. “where labeling of young people is virtually omnipresent— limited english proficiency, emotionally disturbed, intellectually disabled, troubled, trouble-maker, noncompliant, insubordinate, delinquent, from a bad family—decisions and actions flow from these labels and expectations engender among both educators and students.”119 children in foster care, especially black children, are likely to be assigned these kinds of negative labels and consequences.120 implicit bias imbues a host of daily discretionary decisions about how students get categorized and how to respond to a violation of school rules. for example, a decision to call a parent or send a student to the office, rather than refer to law enforcement, makes a big difference. children in foster care may not have a parental figure who comes to the school when called. relationships with school officials are also critical. due to school instability, children in foster care are less likely to have the relationships that might make a difference.121 low school performance, common among children in foster care, also leads to acting out in the classroom, which leads to discipline, which in turn leads to underachievement. special education is also a site where the school-toprison pipeline occurs. although the idea limits school suspensions or charges for behavior that was caused by or is related to the students’ disability, students in special education are far more likely to be suspended from school and expelled than other students.122 the largest racial disparities occur among students with disabilities who are suspended.123 foster care is also a pathway to the juvenile justice system, recently termed the foster-care-to-prison pipeline.124 children in foster care are overrepresented within the juvenile justice system, and children in both systems are disproportionately black.125 a 2014 massachusetts study of dual-system youth found that youth in cps custody made up thirty-nine percent of the detention population and thirty-seven percent of the delinquency committed caseload. compared to the overall dcf population, multi-system youth were disproportionately black or latino (sixty percent compared to thirty-nine percent).126 while factors that bring children into the family regulation system increase the risk for juvenile justice 117 sarah geenen & laurie e. powers, are we ignoring youths with disabilities in foster care? an examination of their school performance, 51 soc. work 233, 238 (2013) (finding that involvement with foster care and special education multiplied the risk of academic difficulties). 118 redfield & nance, supra note 112, at 18–19. 119 id. at 19. 120 kayla mclaughlin, kaley greenman & cindy greenman, a fractured system: is it time for new programming within the child protection services?, 4 j. advances soc. sci. & hums. 487, 491–92 (2018). 121 castrechini, supra note 113 (analyzing the educational difficulties that dependent youth face); zetlin, weinberg, & shea, supra note 113, at 170. 122 redfield & nance, supra note 112, at 37. 123 id. 124 what is the foster care-to-prison pipeline?, supra note 21. 125 citizens for juv. just., missed opportunities: preventing youth in the child welfare system from entering the juvenile justice system, at ii (2015). 126 id. 650 colum. j. race & l. [vol. 12:630 involvement, conditions in the family regulation system itself leads to contact with law enforcement. complex trauma caused by family separation and the foster care experience, and all of the ways it impairs a child’s ability to self-regulate, increases the likelihood of juvenile justice involvement.127 children in foster care are often arrested for experiencing a mental health crisis or exhibiting symptoms of trauma.128 the horrific high-profile police killing of sixteen-year old ma’khia bryant, a foster youth who was brandishing a knife when police arrived on the scene, exemplifies the worst that can happen when traumatized children with impaired abilities to self-regulate encounter the police. there are other systemic factors. children in foster care are often subjected to status offenses. for example, the responses to teenage behavior that would ordinarily be handled within a family, like running away or taking a car without permission, are more likely to be referred to law enforcement. children in congregate settings, where black adolescents disproportionately live, are particularly likely to be referred to law enforcement for minor infractions like fights, petty theft, property damage, or smoking marijuana.129 youth in group homes are 2.5 times more likely to enter the juvenile justice system.130 placement instability also increases the likelihood that a foster child will enter the juvenile justice system.131 other systemic reasons children in foster care are funneled into the juvenile justice system include lack of positive attachments with adults and lack of opportunities to participate in positive youth development activities like sports, extracurricular activities, and mentoring programs. there are negative consequences to this push into the criminal justice system. there is some evidence to suggest that youth in foster care experience worse outcomes in their delinquency cases. they are more likely than other youth to be adjudicated delinquent and to be detained rather than receive probation.132 “incarceration produces long-term detrimental effects on youth, including reinforcement of violent attitudes and behaviors; more limited educational, employment, military, and housing opportunities; an increased likelihood of not graduating from high school; mental health concerns; and increased future involvement in the criminal justice system.”133 in a vicious cycle, these pipelines run in the other direction and both juvenile justice and schools can be a gateway to child welfare. school officials are the largest professional category of mandatory reporters to call the hotline, yet their reports are less likely to allege abuse and neglect, more likely to be referred for alternative response, and less likely to be 127 sydney l. goetz, from removal to incarceration: how the modern child welfare system and its unintended consequences catalyzed the foster care-to-prison pipeline, 20 u. md. l. j. race, religion, gender & class 289, 289–90 (2020). 128 henning, the rage of innocence, supra note 79; dorothy otnow lewis et al., race bias in the diagnosis and disposition of violent adolescents, 137 am. j. psychiatry 1211, 1215–16 (1980) (finding that black youth were more often placed in correctional facilities while white youth were more often placed in psychiatric facilities). 129 cutuli et al., supra note 19, at 89, 91–92. 130 what is the foster care-to-prison pipeline?, supra note 21. 131 citizens for juv. just., supra note 125, at 4. 132 goetz, supra note 127, at 296–97. 133 nance, dismantling the school-to-prison pipeline, supra note 98, at 319–20. 2022] re-envisioning child well-being 651 substantiated.134 because these reports must all be investigated, they play a significant role in the surveillance of black families, while undermining the trust between families and schools.135 when it is time for discharge from juvenile justice, it may not be possible for a child to return home, or a parent may feel that they do not have the capacity to handle the child’s behaviors. it is also possible that the child’s home circumstances, which come to light during the juvenile justice or probation process, trigger a referral to child welfare. once families have become involved with either the juvenile justice or family regulation system, hyper-vigilance increases the likelihood of later contact with these systems. b. trauma is punished rather than treated despite the level of trauma among children in the foster care, juvenile justice, and some school systems, these systems fail to adequately address the impact of trauma and interact to create additional trauma.136 in peter p. v. compton unified school district, a class of students and three teachers sued the school district for its failure to provide trauma-informed service to address the way trauma from multiple sources interfered with students’ ability to learn.137 as a result of the behavioral symptoms of their exposure to multiple traumatic experiences—complex traumas that included mass shootings, molestations, stabbings, racism, and removals to foster care—all of the child plaintiffs had been severely disciplined by school authorities.138 peter p. exemplified the foster care experience. in early childhood, peter. p’s mother abused drugs, and he was abused by her boyfriends. cps removed him from his mother at age five, separated him from most of his siblings, and shuttled him through multiple foster care placements and short-term reunification, until he was ultimately adopted. he has witnessed stabbings and shootings at school and in his community. he was homeless for a period of time at age fifteen. he was repeatedly suspended and expelled from multiple schools.139 his story highlights the way multiple systems not only fail to help, but also inflict additional trauma on the children they are supposed to nurture and protect. for children impacted by multiple systems, instability—and the resulting emotional and psychological consequences—are magnified. children are cycled through different foster care placements, juvenile justice settings, and schools. they are caught in a vicious cycle. once a child enters the juvenile justice system, it becomes more difficult to find home placements as foster parents do not want a “bad” child in their home. this rejection, in turn, increases the likelihood a child will exhibit behaviors or be placed in situations that lead to more juvenile justice 134 brianna harvey, josh gupta-kagan, & christopher church, reimagining schools’ role outside the family regulation system, 11 colum. j. race & l. 575, 585–87 (2021). 135 id. at 588. 136 karen m. abram et al., posttraumatic stress disorder and trauma in youth in juvenile detention, 61 archives gen. psychiatry 403, 407–08 (2004) (finding higher rates of trauma and ptsd among juvenile detainees); cathy widom & michael g. maxfield, an update on the cycle of violence, nat’l inst. of just., u.s. dep’t of just. 7 (2001). 137 see p.p. v. compton unified sch. dist., 135 f. supp. 3d 1126, 1131–33 (c.d. cal. 2015). 138 id. at 1132. 139 id. at 1130–31. 652 colum. j. race & l. [vol. 12:630 involvement. it also increases the likelihood that a child will be shuffled through different schools. this instability often means that a child never receives needed treatment and behavioral health services. from an ecological perspective, the interaction of these systems fails to appreciate the importance of the child’s immediate context in positively influencing their well-being. all of the child’s most important contexts—home, school, community—are stressful and causing harm. children are isolated into the most restrictive settings in all three systems under the guise of providing services when in fact they do not get appropriate treatment and are retraumatized. children are not able to build relationships with family, teachers, peers, or other supportive adults that can be a source of resilience. children not only lack a consistent caregiver, but are also unable to establish stable relationships with teachers and peers. the child welfare and juvenile justice systems disrupt the usual mechanisms that might serve as protective factors for children growing up in the same communities. c. education is disrupted and denied children are undereducated through the interplay between all three systems—children in child welfare and juvenile justice are worse off academically than children from the same communities.140 youth in juvenile justice and child welfare have more frequent school disruption, more suspension, lower high school graduation rates, and lower college matriculation.141 while in the criminal justice system, children are supposed to participate in school, but educational opportunities at detention facilities are inadequate.142 when children are released, credits may not transfer, and their regular school may be averse to their return. they are then pushed into alternative schools from which they are more likely to drop out. due to multiple placement changes, children in foster care are likely to have multiple school changes. in a colorado study, black students in foster care were more likely to experience school changes, and more likely to experience more than one school change in the same school year, than their white peers in foster care.143 each change results in academic delays, and children in care are unable to develop relationships with peers and teachers or participate in in-school and extracurricular activities, all of which are critical to healthy development. without these networks, children in foster care are unable to accumulate the social capital that acts as a protective factor and helps in a host of everyday, practical ways, like helping students remain engaged in school, having adults at school who 140 antonis katsiyannis et al., juvenile delinquency and recidivism: the impact of academic achievement, 24 reading & writing q. 177, 180–82 (2008); wendy wiegmann et al., the invisible achievement gap: how the foster care experiences of california public school students are associated with their education outcomes part two 43–45 (2014) (exploring the achievement gap for students in foster care). 141 wiegmann et al., supra note 140, at 22–42. 142 donna macomber et al., education in juvenile detention facilities in the state of connecticut: a glance at the system, 61 j. corr. educ. 223, 224 (2010). 143 elysia v. clemens, trent l. lalonde & alison phillips sheesley, the relationship between school mobility and students in foster care earning a high school credential, child. & youth servs. rev. 68, 193, 196 (2016). 2022] re-envisioning child well-being 653 know and can advocate for a child, and aiding the college application process.144 youth who had even one less placement change per year were almost twice as likely to graduate from high school before leaving foster care.145 children in foster care are over-represented in special education and specifically in the category of ebd.146 one study noted that children in foster care with disabilities had poorer academic outcomes than children in general education or in foster care only, and that they were in more restrictive settings than non-foster care children in special education.147 this suggests that the impact of being in both foster care and special education has a negative multiplier effect. researchers conducted a systematic review across a twenty-six-year period on factors associated with educational outcomes for children in foster and kinship care. they concluded that male gender, ethnic minority status, and special education status consistently predicted poor educational outcomes.148 d. community-level effects across the country, the family regulation, juvenile justice, and education systems operate in the very same places. in miami, for example, where black children are nineteen percent of the child population, black children are sixty percent of the out-of-home care population and fifty-one percent of the juvenile justice population.149 two of the three zip codes with the highest child welfare removal rates are also the two zip codes with the highest juvenile justice involvement.150 these patterns, which occur across the country, are what social scientist robert sampson refers to as 144 michelle levy et al., the educational experience of youth in foster care, 18 j. at-risk issues 11, 16 (2014); jim casey youth opportunities initiative, social capital: building quality networks for young people in foster care 1–7 (2012) (explaining the importance of social capital and relationships particularly for older youth in foster care). 145 peter j. pecora et al., assessing the educational achievements of adults who were formerly placed in family foster care, 11 child & fam. soc. work 220, 225 tbl.3 (2006). 146 andrea zetlin, elaine macleod & christina kimm, beginning teacher challenges instructing students who are in foster care, 33 remedial & special educ. 4, 5 (2012); nat’l ctr. for educ. stats., u.s. dep’t of educ., the condition of education 2012, at 15–118 (2012) (providing statistics on students, teachers, and schools in 2012); nat’l ctr. for educ. stats., u.s. dep’t of educ., digest of education statistics 2019, at 11–508 (2021) (providing statistics on students, teachers, and schools in 2019); john emerson & thomas lovitt, the educational plight of foster children in schools and what can be done about it, 24 remedial & special educ. 199, 201 (2003); zetlin, weinberg, & shea, supra note 113, at 169. 147 geenen & powers, supra note 117, at 233. 148 aoife o’higgins, judy sebba, & frances gardner, what are the factors associated with educational achievement for children in kinship or foster care: a systematic review, 79 child. & youth servs. rev. 198, 206–07 (2017) (finding that male gender, ethnic minority, and special education needs predicted poor educational outcomes). 149 fla. dep’t of juv. just., disproportionate minority contact/racial ethnic disparity benchmark fy 2019–20 (2020), https://web.archive.org/web/20220214 090853/https://www.djj.state.fl.us/research/reports-and-data/interactive-data-reports/ disproportionate-minority-contact-reports/dmc-red-profile-fy2019-20 (last visited feb. 14, 2022) (filtered for miami-dade county). 150 miami dade cnty. juv. servs. dep’t, 2020 year end report (2020), https://www.miamidade.gov/juvenileservices/library/2020-end-of-year-report.pdf https://perma.cc/a796-jjvq]. 654 colum. j. race & l. [vol. 12:630 “ecological concentration of disparate aspects of well-being” or “geographic ‘hot spots’ of compromised health.”151 the amplifying effects of these intersecting systems cause harm not only to individuals and families, but also to the communities in which these situations are concentrated. dorothy roberts has explained the significant community impacts of the family regulation system. families are not only essential for transmitting values to the next generation, but they form the base through which processes like social capital—the intangible good from relationships among people—operate.152 as roberts explained, “families form the base of support from which neighbors can join together to accomplish communal networks.”153 roberts argues that placing large numbers of children in state custody “depletes a community’s social capital, weakening the group’s ability to form productive connections among its members and with people and communities outside of the community.”154 it also erodes a means of fighting injustice and the “family and community networks that prepare children to participate in future political life.”155 finally, child removal negatively impacts neighbors’ sense of control over their lives and collective ability to get things done.156 all of these effects also reinforce stereotypes about people in the neighborhood and the reality of the neighborhood’s inequality. “we react to neighborhood difference, and these reactions constitute social mechanisms and practices that in turn shape perceptions, relationships, and behaviors that reverberate both within and beyond transitional neighborhood borders, and which taken together further define the social structure of the city.”157 iv. towards opportunities for children and families to thrive the family regulation system’s interaction with the juvenile justice and education systems magnifies harm and oppression to black families and communities. these systems are in a perpetual state of failure and reform, yet there is no meaningful improvement, and their replication of hierarchy is used to justify continued need for the systems to operate the way they do. this vicious cycle supports the growing sense that reform within existing paradigms is fundamentally unjust and abolition is necessary.158 a group of symposium contributors who are directly impacted— mothers, community organizations, and allied advocates from across the country—note that “[a]bolition teaches us to unroot oppressive structures, disrupt and dismantle them while simultaneously supporting a 151 robert j. sampson, great american city: chicago and the enduring neighborhood effect 13 (2012). 152 roberts, shattered bonds, supra note 1, at 237. 153 id. 154 id. at 239. 155 id. at 243. 156 id. at 241. 157 sampson, supra note 151, at 21. 158 dorothy roberts, how i became a family policing abolitionist, 11 colum. j. race & l. 455, 460 (2021) (noting that efforts to address disproportionality have not made a meaningful difference); ashley albert et al., ending the family death penalty and building a world we deserve, 11 colum. j. race & l. 861, 866–68 (2021). 2022] re-envisioning child well-being 655 praxis of imagination, healing, and building.”159 having explored the mechanisms among the family regulation, education and juvenile justice systems that intensify harms, this part offers some steps along the long road to abolition that dismantle the punitive pillars of the current systems and build alternative ways to create the environments necessary for black children and their families to thrive. this part contributes to the collective project by highlighting some approaches that account for these interlocking systems. transformative approaches to child and family well-being cannot occur within the existing punitive policy framework for these systems, and instead must be centered around the families and in the communities most harmed by these systems. we need holistic approaches that physically and conceptually leave children within their families and communities and create the conditions that foster individual and community well-being. as a society we need to keep families together, provide them the material resources and services they need to care for their children, and address the structural conditions that make it difficult to parent, like poverty and the lack of quality affordable housing or childcare. we also need to help people heal from trauma using culturally appropriate approaches. these core concepts, if taken seriously, can help achieve the purported goals of all three child-serving systems: family regulation (safety, permanency, wellbeing), juvenile justice (rehabilitation) and education. we need to radically shrink the reach and scope of the family regulation and juvenile justice systems. schools, on the other hand, need increased investments to offer a quality education regardless of a child’s zip code and transform into places that cultivate well-being and achievement. while a comprehensive analysis of these themes is beyond the scope of this piece, this part offers some ideas that advance these goals in light of the intertwined operation of the three systems. a. adopt a holistic approach to helping children and families we demand a world where systems do not dictate the futures of families, nor are the complexities of human pain, love, and need, reduced to checklists and algorithms; where there are numerous community-based alternatives to provide the rites of passage for healing. . . . in this world, we govern our own communities, and have participatory policy making. . . . all top-down systems are eradicated. instead, grassroots efforts anchor us and lead the fight for the health and well-being of families.160 we need a holistic approach to helping families that accounts for dysfunctional, interlocking systems and addresses the root structural problems that ensnare families in the family regulation and juvenile justice systems.161 families policed by the family regulation and juvenile justice systems, and who lack access to quality schools, confront the same adverse community conditions. poverty, neighborhood violence, racism, inadequate housing, and lack of economic opportunity and social capital are the same 159 albert et al., supra note 158, at 863. 160 id. at 871. 161 dowd, supra note 12, at 142–46. 656 colum. j. race & l. [vol. 12:630 overlapping community-level factors that research indicates heighten risk for cps intervention, juvenile justice involvement, and thwarted educational opportunities.162 these conditions result from over a century of policies like jim crow codes, highway infrastructure that destroyed black neighborhoods, redlining, the war on drugs, mass incarceration, welfare reform, school funding, and other policy choices.163 as this piece documents, rather than addressing these community-level root causes leading to system involvement, the family regulation, juvenile justice, and education systems intertwine punitive approaches that pathologize black families, separate children from their families and communities, and inflict trauma rather than helping children to heal.164 as we move to dismantle these systems, we should develop a more holistic view of families, address the root structural issues driving disproportionality in all of these systems, and work across sectors to build what families and communities indicate would be most helpful. despite the overlapping community-level risk factors, policymaking, reform efforts, and practice all inefficiently and ineffectively operate through a siloed system-oriented lens that coercively seeks to fix broken families. the dominant intervention of these systems has been on individual or family factors prefaced on deficit models of fixing parents and their children. the dominant approach used by the family regulation system is to fix parents’ alleged deficits using family separation as the primary means to exercise control and punishment.165 the juvenile justice system focuses on rehabilitation after children are already involved in the system. although juvenile arrests and incarceration rates have generally gone down, the overrepresentation and disparately harsh treatment of black children has remained constant, largely for behavior that is typical of adolescents or manifestations of trauma.166 federal policy and funding structures funnel billions of dollars in resources intended to help families through these individual carceral systems. system-centered reform efforts 162 wendy r. ellis & william h. dietz, a new framework for addressing adverse childhood and community experiences: the building community resilience model, 17 acad. pediatrics 86, 87 (2017). the community-level risk factors for delinquency include poverty (e.g., high public assistance and unemployment rates), neighborhood violence and crime, community instability (e.g., housing mobility and low home ownership), social and physical disorganization (e.g., poor external housing conditions, vandalism, and nonenforcement of building codes). dev. servs. grp., inc., off. of juv. just. & delinq. prevention, literature review: risk factors for delinquency 8–10 (2015). the community-level risk factors for abuse and neglect are poverty, limited educational and economic opportunities, neighborhood violence and crime, low community involvement among residents, unstable housing and high residential mobility, high levels of food insecurity, and few community activities for young people. risk and protective factors, ctr. for disease control & prevention, https://www.cdc.gov/violenceprevention/childabuse andneglect/riskprotectivefactors.html [https://perma.cc/nue3-6a6d] (last updated mar. 15, 2021). 163 ellis & dietz, supra note 162, at 86 (proposing a model for building resilience in communities affected by toxic stress and childhood adversity). 164 see supra parts ii and iii. 165 miriam mack, the white supremacy hydra: how the family first prevention services act reifies pathology, control, and punishment in the family regulation system, 11 colum. j. race & l. 767, 781 (2021). 166 henning, supra note 79, at xv–xviii. 2022] re-envisioning child well-being 657 have not achieved improved outcomes or led to the kind of change we need.167 that our policy frameworks remain so committed to these approaches is all the more striking in light of evidence that addressing structural problems and material resources reduces the maltreatment that brings children into the current system. studies show that minimum wage, earned income tax credits, and stable housing are linked to lower reported rates of neglect.168 as another example, lack of stable, affordable, and safe housing is a significant factor in removals (and juvenile justice).169 studies have shown that lack of safe housing negatively impacts a child’s health, development, education, and emotional well-being.170 a holistic approach would directly address these kinds of structural issues and redirect the resources currently used to fund failing carceral systems. adopting a holistic approach means families deciding what they need to thrive and local communities leading efforts to decide how to best provide it.171 this should be done with authentic leadership by people who live and work within the communities most impacted by existing carceral systems. it should include broad collaborations among the many sectors that can form community-based support networks needed for children to thrive including schools, health centers, churches, grassroots and civic organizations, early childhood providers, and local businesses. this kind of collaboration allows community organizations to work collectively to coordinate family support efforts and resources in order to benefit the entire community. these networks are needed to advocate for and develop the range of possible strategies including structural investments in neighborhoods, economic policies to address poverty (affordable housing, living wage, child tax credits, child care) and the many other ideas explored at this symposium. these networks are also needed to educate elected officials, legislators, policymakers, practitioners, philanthropic organizations, and others to view the issues impacting children and families in a more holistic way. such an effort cannot originate within the contours of the current family regulation or juvenile justice systems because the current policy framework and coercive power dynamics do not allow for the kind of community-wide change that is needed. the building community resilience (“bcr”) framework is one example that provides a “continuum of cross-sector cooperation and services to build the ‘social scaffolding’ that will support children and families and contribute to community resilience.”172 bcr pushes beyond traditional models of multi-agency collaborations by explicitly integrating a racial equity lens and 167 jerry milner & david kelly, the need for justice in child welfare, 99 child welfare j. (dec. 2021), https://www.cwla.org/the-need-for-justice-in-child-welfare/ [https://perma.cc/ar5d-uyvh] (arguing that, despite wide agreement that the family regulation system needs transformative change, theories of change centered around developing better interventions to “fix” parents have proved largely unsuccessful). 168 mack, supra note 165, at 790 (citing studies showing that increases in the minimum wage and earned income tax credits corresponded with lower reports of neglect). 169 id. 170 id. at 795. 171 milner & kelly, supra note 167. 172 ellis & dietz, supra note 162, at 87. 658 colum. j. race & l. [vol. 12:630 understanding of the policy reasons for the adverse community environments that put children at risk for adverse childhood experiences.173 it seeks to create stronger linkages across health systems, community-based agencies, community members, and government agencies to strategically address the root causes of toxic stress.174 by suggesting this type of cross sector coordination, this piece does not mean to say that the current carceral systems should better collaborate and coordinate with each other. collaboration and coordination can be a useful ameliorative approach in the current carceral context to address the intersections among the family regulation systems and education and juvenile justice. but it has not, and is unlikely to, bring about the kind of transformative change this symposium challenges us to imagine. it also creates the potential to push people deeper into carceral systems.175 instead, what this piece suggests is the kind of coalitions that are authentically centered in the communities where people most impacted live and work. a holistic approach also means we must act now to end the criminalization of youth in foster care and disrupt the pipelines that funnel children from school or foster care placements into the juvenile justice system. as discussed in part ii, due to the trauma of family separation, experiences in foster care including placement instability and placement in congregate or restrictive settings, children in foster care may engage in behaviors that reflect their trauma and the harm they have experienced. this begins with preventing children from entering the family regulation and juvenile justice systems in the first place, thereby reducing the number of children who can cross over to other systems.176 it requires disrupting the school-to-prison pipeline. once children are already in the family regulation system, they should not be referred to the delinquency system for behaviors that are either typical adolescent behavior or manifestations of trauma. when they are, the case should be diverted quickly out of the delinquency system. more generally, children should be directed to school and community-based services that address trauma and provide opportunities known to promote resilience.177 simultaneously, action must be taken at every stage of the juvenile justice system to stop criminalizing black youth.178 b. keep families together we demand a world where family integrity of all families is valued and family integrity held sacred. in this world, families are supported and 173 another example is the mobilizing action for resilient communities. jennifer jones et al., translating brain science research into community-level change, 17 acad. pediatrics 24, 24–25 (2016). 174 ellis & dietz, supra note 162, at 87. 175 wendy bach, the hyperregulatory state: women, race, poverty, and support, 25 yale j. l. & feminism 317, 378–79 (2014) (recommending caution in collaboration contexts where agencies share data that could potentially be used for punitive purposes). 176 alexandra miller & lisa pilnik, never too early: moving upstream to prevent juvenile justice, child welfare, and dual system involvement 13 (2021). 177 eduardo r. ferrer, transformation through accommodation: reforming juvenile justice by recognizing and responding to trauma, 53 am. crim. l. rev. 549, 584 (2016). 178 henning, supra note 79, at 326–41. 2022] re-envisioning child well-being 659 given the resources they need to thrive, and the family death penalty, or termination of parental rights, no longer exists.179 keeping families together is essential to children’s well-being. this would be a truism if we were talking about any family other than poor families of color. strong family relationships are critical for children to develop and be resilient. children need at least one adult who loves them unconditionally and, better yet, a network of caring adults. parents and caring adults improve adolescent resilience by nurturing personal attributes like positive self-esteem and teaching good problem-solving skills to help youth resolve conflicts with others. parents also help youth develop a strong racial identity and support racial socialization, which is also important for healthy adolescent development. the poor outcomes documented in part ii of this piece demonstrated that the state is a poor substitute parent. as demonstrated above, the family regulation system cannot provide the love, care, nurturing, and host of benefits that stem from growing up within a family. and the juvenile justice system’s disproportionate confinement of black youth also disrupts family ties and the family’s role. it does more harm than good. as others at this conference have asked us to do, imagine the possibilities if we marshaled the same level of resources currently devoted to separating and confining children and terminating parental rights, to keeping families together and helping families care for children.180 we cannot seek to help black children if we do not also care about the parents.181 keeping families together requires dismantling the features of the current systems that destroy relationships with the parents who are so essential to their healthy development and long-term well-being. in the family regulation system, this means ending removals as the dominant means of addressing neglect. asfa should be repealed for all of the reasons more extensively documented elsewhere by parents, advocates and scholars.182 asfa implemented a fifteen-month time limit for filing termination of parental rights rather than continued reunification services, waived the state’s obligation to attempt reunification if aggravated circumstances exist, and incentivized adoptions over other permanency options that would leave parental rights intact.183 among its many problems, this approach does not account for inequitable access to services, the timeline and process for addiction recovery, racism, and the relationship between addiction and trauma.184 more pervasively, asfa’s funding structure funnels billions of dollars to states annually to support foster care and adoption services. until recently, “the key to all of these title iv-e funding programs was the requirement that the children for whom the funds were allocated be removed from their homes to the foster 179 albert et al., supra note 158, at 869. 180 mack, supra note 165, at 776–82; burton & montauban, supra note 43, at 678. 181 henning, supra note 79, at 304. 182 albert et al., supra note 158, at 875–78; milner & kelly, supra note 167; mack, supra note 165, at 776–82. 183 adoption and safe families act, supra note 45. 184 milner & kelly, supra note 167. 660 colum. j. race & l. [vol. 12:630 system.”185 in the juvenile justice system, we should end the use of confinement as a response to situations that are symptoms of trauma.186 c. support families within their communities keeping families together also means parents must have the resources they need to help them care for their children. parents must have resources to meet their needs and address the root causes that push families into the current family regulation and juvenile justice systems. angeline montauban, a symposium contributor and parent with lived experience with the family regulation system, writes: the best way to protect children is to have resources readily available to families in the community. . . . the resources needed to support families are already available and so it is time to redirect those federal, state, local, and private funds to developing and maintaining creative and innovative ways to help people who need it . . . . rather, we need to invest in community-based organizations and resources to eliminate housing insecurity and food insecurity, and to provide whatever is necessary to help children and families thrive— whether it be clothing, educational support, domestic violence support, or child care and workforce development.187 these approaches must be community-driven and must strengthen and align formal and informal forms of help for families through neighborhood-level strategies that build the social fabric of the community. solutions must focus on primary prevention and building power and relational capacity in the communities most harmed by these systems. families would be supported in their natural social contexts—“embedded in the settings where families live, work, study, worship, and play.”188 the current family regulation system’s role as an arbiter of services would shrink, and resources would be redirected to strengthen a connected network of community-based institutions. help is available in the community when families need services and supports such as prenatal care, mental health services for parents and children, employment, housing, child care, early childhood education, parenting coaching, drug treatment, domestic violence support. we should also explore other neighborhood-level interventions that improve the social processes that have been linked with improved child and community well-being. studies have shown that neighborhoods with high collective efficacy189 (social cohesion and social control) and social networks 185 mack, supra note 165, at 778. 186 ferrer, supra note 177, at 584–85. 187 burton & montauban, supra note 43, at 678. 188 robin j. kimbrough-melton & gary b. elton, “someone will notice, and someone will care”: how to build strong communities for children, 41 child abuse & neglect 67, 67 (2015). 189 collective efficacy is a group’s shared belief in their capability to succeed at given tasks. it measures social control—neighbor’s capacity to regulate behavior of other residents—and social cohesion—mutual trust and solidarity among neighbors. beth e. molnar et al., neighborhood-level social processes and substantiated cases of child maltreatment, 51 child abuse & neglect 41, 42–43 (2016). 2022] re-envisioning child well-being 661 (physical proximity of close friends and families) have lower rates of substantiated abuse and neglect and substance exposed infants.190 intergenerational closure (the extent to which parents know the neighborhood’s children and the parents of their children’s friends) has been linked to academic achievement and lower rates of substantiated abuse and neglect.191 robert sampson, a leading researcher in the field, found that residential stability and organizational density are key explanations for collective efficacy and social altruism.192 sampson notes that “collective efficacy is primarily about informally activated social control and shared expectations rooted in trust.”193 the density of nonprofit organizations (e.g., neighborhood watches, block groups, tenant associations, and after-school programs) predicted collective efficacy and collective civic action.194 these types of organizations must be provided the organizational resources and capacity to “generate a web of mundane routine activities that can lubricate collective life.”195 this enhances the community, but also forms an integral part of the network through which families can find support. these should then be integrated into other types of community-based organizations that can provide more intensive services for things like substance abuse and mental health treatment. “it is the totality of the institutional infrastructure that seems to matter in promoting civic health and extending to unexpected economic vitality.”196 sampson’s research makes the case for community-level interventions as well as holistic policy interventions that recognize the important interconnected social fabric of neighborhoods in american cities. they would include a range of strategies including public safety, opportunities to enhance citizen participation and mobilization, community economic development, and mixed-income housing.197 to be effective, however, these approaches must be developed simultaneously with the dismantling of key pillars of the family regulation system that lead to the level of surveillance and coercion that cannot continue if we want to better serve families. mandatory reporting laws— requiring professionals to report and child protection agencies to investigate all instances of suspected neglect—prevent professionals in a range of helping professions (e.g. social workers, doctors, community organizations) from making more effective interventions for millions of children. under the current framework, a parent who seeks help within the community for situations like domestic violence, substance use disorder, or mental illness face significant risk that they will be reported to cps, making it less likely people will seek services and undermining the relationship when they do.198 state laws’ overly broad and vague definitions of “neglect” expand mandatory reporting and investigation to a 190 id. at 41. 191 id. at 43. 192 sampson, supra note 151, at 402–03. 193 id. at 370. 194 id. at 370–72. 195 id. at 371. 196 id. at 372. 197 william julius wilson, foreword to robert j. sampson, great american city: chicago and the enduring neighborhood effect, at xii–xiii (2012). 198 burton & montauban, supra note 43, at 668. 662 colum. j. race & l. [vol. 12:630 range of poverty-related situations, making coercive interventions the dominant means of responding to the needs of poor families. “once entrapped in the cps system, as a condition of maintaining or regaining custody of their children, parents are subjected to oppressive oversight by cps caseworkers under the rubric of child abuse services and treatment— so-called ‘preventive services’ and foster care or reunification programming.”199 cps forces parents to participate in the type of services cps dictates with the provider cps selects, rather than services families choose, want, or need.200 these are often standardized services that do not address families’ actual needs or the root causes of the situation that triggered the mandatory report; that are not offered in culturallycompetent or relevant ways; and that are so driven by the judicial process that even potentially helpful services are hijacked as evidence to help cps agencies prove parents’ dangerousness to justify removal or termination of parental rights.201 the network of public and private agencies that provide these services, through their contracts with the cps agency, form part of this coercive web. d. invest in schools as a place for learning and healing in this world, those of us who live with addiction, or trauma are afforded the space, time and support necessary to heal, and our children are allowed to be participants in that healing. in this world, our children learn that adversity can be overcome, that mistakes can be forgiven, and that the experience of suffering does not make permanent outcasts of us . . . . we would be living in a world where practicing the skills to end harm, mediate conflict is an imperative.202 schools play such an important role in children’s development that they are important sites for transformation. we need high quality schools in every neighborhood and a special education system that lives up to its promise. symposium contributors brianna harvey, josh gupta-kagan & christopher church offer schools as a potential place to provide supports and services from which families reported to the family regulation system might benefit such as public benefits, legal services referrals, health care, social workers and peer support.203 for schools to become places that foster achievement, well-being and family support, they must abandon the punitive approaches emblematized by the school-to-prison pipeline in favor of a culture that values trust, respect and learning. restorative justice offers one approach that offers promise along the way. grounded in “indigenous traditions that emphasize interconnectedness and relationality to promote well-being of all of its community members”,204 199 id. at 670. 200 id. at 655. 201 id. at 657–61 (noting that mental health evaluations contracted by the family regulation system are used as a prosecutorial tactic to establish abuse and neglect and justify cps intervention, rather than to meaningfully diagnose and treat issues, and are often poor quality that does not comply with general standards of the profession). 202 albert et al., supra note 158, at 870–71. 203 harvey, gupta-kagan, & church, supra note 134, at 599–610. 204 thalia gonzález, heather sattler, & annalise j. buth, new directions in wholeschool restorative justice implementation, 36 conflict resol. q. 207, 208 (2018); see also 2022] re-envisioning child well-being 663 restorative justice is a theory and diverse set of practices that seek to “hold individuals accountable for their behavior, while also providing community support to manage the external forces that can influence individual decisions or motivations.”205 restorative justice “shifts the focus away from individual retribution and stigmatization and towards restoring and strengthening bonds of trust and mutual reliance for the future.”206 used most often in the criminal and juvenile justice systems, scholars have argued to extend its applicability to the family regulation, public assistance, and other human services contexts.207 dorothy roberts argues that the “restorative justice paradigm is better suited than the retributive paradigm for addressing black mothers’ involvement in the prison and foster care systems because it focuses on needs rather than punishment and extends beyond individuals to include the community.”208 roberts, however, argues that current dominant conceptions of restorative justice must go beyond repairing harm among individual perpetrators and victims, so that the state make amends for its role in the systematic harm to individuals.209 she also joins other feminist scholars in suggesting that restorative practices that are entangled in carceral justice systems are likely to be coopted and corrupted.210 restorative strategies should be explored to address a range of private harms that typically trigger punitive intervention by family and youth systems. these efforts would “rely on the strengths and accountability of community members rather than on punitive state intervention.”211 this piece explores its applicability in the school context. schools are increasingly using restorative-justice practices.212 the broad goal in the school context is for “educational policy and practice to be more responsive and restorative to the needs and concerns of the school community.”213 while there are various models for integrating restorative practices at schools, studies have found that the whole-school approach is most effective for improving student outcomes.214 consistent with public health and ecological frameworks, whole-school models seek to improve relationships among all teachers, students and staff and strengthen the climate of the entire school, rather than using restorative practices solely lauren van schilfgaarde & brett lee shelton, using peacemaking circles to indigenize tribal child welfare, 11 colum. j. race & l. 681, 705–08 (2021). 205 lu, supra note 30, at 174. 206 sampson, supra note 151, at 305. 207 lu, supra note 30, at 177 (arguing that “[i]n the welfare context, restorative justice can focus on better processes and more humane interactions over faceless and remote government bureaucracy on the one hand, and abandonment to and dependence on unaccountable, unsupportive, and even potentially abusive private relationships on the other.”) 208 dorothy roberts, black mothers, prison, and foster care: rethinking restorative justice, in restorative and responsive human services 116, 121 (gale burford, john braithwaite & valerie braithwaite eds., 2019). 209 id. 210 id. at 122–23. 211 id. at 123. 212 gonzález, sattler, & buth, supra note 204, at 207. 213 id. at 208. 214 id. at 209. 664 colum. j. race & l. [vol. 12:630 to address specific disciplinary incidents.215 whole-school approaches promote school connectedness, the development of health and trusting relationships within the school, which is a protective factor for youth who might otherwise be targeted by punitive systems. it also supports positive school culture, equitable climate, improved academic outcomes, and opportunities to develop improved social-emotional capacities, and listening and conflict resolution skills.216 while approaches can be aimed narrowly at reducing reliance on punitive discipline practices in schools,217 restorative justice has the potential to transform the overall culture of a school. restorative justice has been linked to improved school climate and safety. this includes increased school connectedness, relationship building, conflict resolution skills development, academic performance, and social emotional learning. one study concluded that in addition to addressing school safety, circles are an “important school-level resilience-building strategy for both educators and students. as their analysis revealed, restorative approaches aimed to build resilience to counter the negative impacts of zero tolerance policies by building supportive relationships and to create spaces for students to productively express their thoughts and emotions.”218 as with well-intentioned ideas, this can be coopted as another tool for marginalization and oppression. in the school context, this could happen in the dominant model where adults exclusively monopolize facilitation and decision-making. thalia gonzalez, heather sattler, and annalise buth studied one very successful model that offers a critical guardrail against this coopting. the school democratized the approach, integrating restorative practices at all levels of the school, so there was no central leader of restorative justice, rather teachers, staff and students were empowered as circle keepers.219 student leadership was central to the success of the model studied, and in addition to leading circles within the school, the students also served as practitioners outside of their school at conferences, other schools, and community settings.220 these types of models should be further explored for its potential to disrupt the school’s role in co-facilitating the harms of the family regulation and juvenile justice systems. power u center for social change (“power u”) is an example of a grassroots organization that integrates restorative strategies in its organizing around multiple issues.221 power u is a grassroots membership organization whose mission is “organizing and developing the leadership of black and brown youth and black women in south florida so that they 215 whole school approaches integrate a multi-level system of primary (relationship building skills for all community members), secondary (restorative processes to repair harm among specific individuals) and tertiary interventions (more intensive processes for those with chronic behavioral problems). id. 216 id. at 211. 217 id. at 208 (citing studies finding that restorative practices reduce disciplinary referrals and incidents and serve as a protective factor for students of color in particular). 218 id. at 209. 219 id. at 216, 218. 220 id. at 212, 216. 221 about, power u, https://www.poweru.org/about/ [https://perma.cc/eec9-qexx] (last visited mar. 11, 2022). 2022] re-envisioning child well-being 665 may help lead the struggle to liberate all oppressed people.”222 they organize around a range of issues including environmental justice, affordable quality housing, and the school-to-prison pipeline. they use restorative strategies in various spaces within the community, and a central focus right now is organizing young people to fight for safe and supportive schools including a successful campaign to bring restorative practices to schools.223 restorative practices are one approach to whole-school trauma sensitive practices and another promising way to effectively address the needs of children affected by childhood trauma. children impacted by trauma need an “educational environment that places relationship, trust and emotional and physical safety at the center of teaching.”224 they cannot effectively learn when they are in a fight, freeze, or flight mode. a traumaresponsive education avoids using punitive and exclusionary disciplinary measures and instead builds accountability through relationships to people who are attuned to the child’s emotional needs and communicate care, acceptance, and empathy. this approach also strengthens self-regulation and other executive functioning skills. for these reasons, advocates and scholars have begun advocating for trauma-responsive schools in those communities where a significant portion of the school population has experiences trauma.225 studies have showed that shifting to a whole-school trauma responsive model improves student educational progress, behavior, and relationships with educators.226 in a massachusetts study of four schools that implemented a trauma-based approach, schools reported that they felt calmer and safer with a decrease in the number of crises, a decrease in daily detentions and disciplinary incidents, and improved relationships.227 there is a critique that trauma-sensitive practices are ameliorative and do not address the structural issues that created the trauma. we also need structural change. in the meantime, trauma 222 id. 223 smashing the school-to-prison pipeline, power u, https://www.poweru.org/ smashing-the-school-to-prison-pipeline/ [https://perma.cc/3jk3-g8jk] (last visited feb. 21, 2022). 224 nicole tuchinda, the imperative for trauma-responsive special education, 95 n.y.u. l. rev. 766, 823 (2020). 225 see compton unified sch. dist., 135 f. supp. 3d 1126 (denying a motion to dismiss for an action claiming that exposure to a traumatic event is a disability under the rehabilitation act or the ada); see also stephen c. v. bureau of indian educ., no. 17-08004, 2019 u.s. dist. lexis 216436 (d. ariz. dec. 16, 2019) (rejecting plaintiffs claim on summary judgment that defendant schools failed to provide plaintiff students with a system to help those impacted by trauma). 226 wehman jones & david osher, trauma and learning policy initiative (tlpi): trauma-sensitive schools descriptive study, am. insts. for rsch. 19–58 (2018) (observing how an inquiry-based process can create the conditions for a traumasensitive school environment); sheryl kataoka et al., effect on school outcomes in lowincome minority youth: preliminary findings from a community-partnered study of a school trauma intervention, 21 ethnicity & disease 1, 6–8 (2011) (finding a positive correlation between academic success and early intervention for students who have been exposed to community violence); regents of the univ. of cal., ucsf hearts: healthy environments and response to trauma in schools, https://hearts.ucsf.edu/ [https://perma.cc/gcp2-j5e3] (last visited jan. 11, 2022); christina d. bethell et al., adverse childhood experiences: assessing the impact on health and school engagement and the mitigating role of resilience, 33 health affs. 2106, 2111 (2014). 227 jones & osher, supra note 226, at 45. 666 colum. j. race & l. [vol. 12:630 sensitive practices can help children to heal and transform schools into what they should be to realize the abolitionist vision of safe and healthy communities. v. conclusions efforts to dismantle the carceral state should account for the ways that the family regulation system’s interactions with the juvenile justice and education systems significantly intensify harm and oppression of black families and communities. the family regulation system itself rips families apart largely for reasons stemming from poverty and structural inequality and also inflicts a host of other harms endemic to the failed system. that alone would be reason enough to sound the alarm. making things worse, it funnels children into the juvenile justice system, which independently produces negative outcomes for children of color, and creates conditions that intersect with educational inequity to limit educational opportunity. all three systems, permeated by “demonizing stereotypes that cause others to fear and devalue” black children and their families228, operate through mechanisms that pathologize and label children as defective or dangerous, separate children from their families and communities, and subject them to multiple traumatic experiences. rather than continuing systemsoriented reforms that tinker at the edges without meaningful change, we should adopt a holistic approach that directly centers families and the communities where they live. we need to keep families together, provide them the material resources and services they need to care for their children, and address the structural conditions that make it difficult to parent like poverty and the lack of quality affordable housing. we need high quality schools in every neighborhood and explore the potential for schools to be important sites for transformation, helping children to heal and fostering their well-being. 228 henning, supra note 79, at 303. i. racialized outcomes, poverty and america’s hierarchy a. racialized youth outcomes b. the role of poverty c. hierarchies ii. the child welfare, education, and juvenile justice systems a. the family regulation system b. the juvenile justice system c. the education system iii. the compounding effect of interaction between the three systems a. pipelines that exacerbate harm b. trauma is punished rather than treated c. education is disrupted and denied d. community-level effects iv. towards opportunities for children and families to thrive a. adopt a holistic approach to helping children and families b. keep families together c. support families within their communities d. invest in schools as a place for learning and healing v. conclusions columbia journal of race and law vol. 11 january 2021 no. 1 note environmental justice and pennsylvania’s environmental rights amendment: applying the duty of impartiality to discriminatory siting jacob elkin! since the 1970s, there has been a growing awareness that environmental hazards are disproportionately sited in low-income communities and communities of color. under the label of the environmental justice movement, community groups have pursued various means to fight against the discriminatory concentration of environmental burdens in their neighborhoods. yet in its civil rights act and equal protection clause jurisprudence, the supreme court has largely shut the door on federal environmental justice litigation by requiring plaintiffs to prove that the government acted with discriminatory intent in its siting and permitting decisions. this note argues that pennsylvania’s environmental rights amendment provides an avenue for disparate impact environmental justice litigation at the state level. in its 2013 robinson township v. commonwealth decision, the pennsylvania supreme court interpreted the state’s environmental rights amendment as imposing significant public trust obligations on the state legislature and other governmental ! managing online & symposium editor, columbia journal of race and law, volume 11. j.d. candidate, columbia law school, 2021. the author would like to thank professor olatunde johnson for her thoughtful guidance throughout all stages of the writing process, along with professors peter strauss and michael gerrard for their ideas and insight. the author would additionally like to thank the columbia journal of race and law staff, especially tessa baizer, ariana bushweller, nicolás galván, seojin park, and vinay patel for their input during various stages of the writing and editing process. 196 colum. j. race & l. [vol. 11:195 actors. while previous scholarship has analyzed robinson township’s impact on environmental constitutionalism generally, this note focuses on the decision’s environmental justice implications. in particular, this note argues that one public trust duty imposed by the pennsylvania supreme court—the duty of impartiality—should prohibit state actors from continuing to site environmental hazards in communities that already bear disproportionate environmental burdens. i. introduction ................................................................... 197 ii. environmental justice in pennsylvania and the united states........................................................... 199 a. the distribution of environmental burdens in the united states and pennsylvania................. 200 b. federal environmental justice litigation under the equal protection clause and civil rights act ...................................................... 206 c. pennsylvania’s environmental rights amendment............................................................ 210 iii. robinson township and the duty of impartiality ....... 214 a. the robinson township and pedf decisions ...... 214 b. environmental justice under the revamped environmental rights amendment....................... 218 iv. understanding the duty of impartiality in pennsylvania law ......................................................... 222 a. differing conceptions of environmental equity... 223 b. the duty of impartiality in pennsylvania private trust law.................................................. 225 c. shaping an environmental justice claim under the duty of impartiality ............................. 229 1. claims under the declaratory judgments act ................................................ 229 2. padep permit appeals.................................. 231 3. challenges to municipalities or local agencies ................................................ 232 v. the possibility for environmental justice litigation under the duty of impartiality in other states.......... 234 vi. conclusion..................................................................... 238 2021] environmental rights amendment 197 i. introduction advocates have long attempted to hold governments accountable for the disproportionate siting of environmental hazards such as landfills and power plants in communities of color and low-income communities. under the label of the environmental justice movement, community groups have pursued various means to fight against the concentration of environmental burdens in their neighborhoods. 1 while the movement has had a number of legal successes, including president clinton’s signing of executive order 12898 (“federal actions to address environmental justice in minority populations and low-income populations”),2 federal litigation strategies focused on combating environmental racism and injustice have largely stalled.3 several doctrinal roadblocks currently stand in the way of federal environmental justice litigation. under modern equal protection clause jurisprudence, governmental actions with racially disproportionate impacts are unconstitutional only when the government acted with an intent to discriminate.4 similarly, title vi of the civil rights act does not provide a private right of action to combat discrimination unless the plaintiff can prove the governmental agent in question acted with discriminatory intent.5 it is incredibly hard—if not impossible—for litigants to 1 for a timeline of the environmental justice movement, including key milestones, see robert d. bullard et al., environmental justice milestones and accomplishments: 1964–2014 (2014), https://www.racialequitytools.org/resourcefiles/enviromental_justice.pdf [https://perma.cc/88dp-awsw]. 2 eo 12898 directed that “each federal agency . . . shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the united states and its territories and possessions, the district of columbia, the commonwealth of puerto rico, and the commonwealth of the mariana islands.” exec. order no. 12,898, 59 fed. reg. 7,629, 7,629 (feb. 16, 1994). the order also mandated the creation of an interagency working group on environmental justice. id. 3 see carlton waterhouse, abandon all hope ye that enter? equal protection, title vi, and the divine comedy of environmental justice, 20 fordham env’t l. rev. 51, 63–77 (2009). 4 washington v. davis, 426 u.s. 229, 239 (1976). 5 see alexander v. choate, 469 u.s. 287, 293 (1985); alexander v. sandoval, 532 u.s. 275, 293 (1998). while the civil rights act provides the environmental protection agency (epa) the power to administratively remedy disparate impact discrimination, the agency has largely failed to exercise that power to protect citizens from environmental injustice. as of 2016, the epa’s office of civil rights had never found a violation of title vi of the civil rights act and was dismissing nine out of every ten complaints alleging environmental 198 colum. j. race & l. [vol. 11:195 establish that state actors intended to discriminate when making siting and permitting decisions.6 as a result, federal challenges to pollution permits and waste facility siting decisions under the equal protection clause and the civil rights act have uniformly failed.7 while federal environmental justice litigation remains largely thwarted, legal inroads at the state level can still be made. 8 optimistically, state-specific environmental justice litigation could serve as a laboratory for nation-wide innovation, and pragmatically, state courts may be the only viable forum left for environmental justice litigation. 9 building off this stateoriented approach, this note argues that recent developments under pennsylvania’s environmental rights amendment (amendment), a 1971 amendment to the pennsylvania constitution, present fertile ground for state litigation targeting the continued siting and permitting of environmental burdens in low-income communities and communities of color. starting with robinson township v. commonwealth, the pennsylvania supreme court has held that the environmental rights amendment imposes a “duty of impartiality” on the state, requiring state actors to balance the interests of all residents when making decisions that affect public natural resources such as ambient air and water quality.10 while the scope of this duty remains undefined, this note argues that it could serve as the foundation for litigation challenging discriminatory siting and permitting decisions. part ii of this note presents background information regarding patterns of environmental injustice in pennsylvania and the united states, attempts to litigate environmental discrimination under the equal protection clause and civil discrimination. talia buford & kristen lombardi, report slams epa civil rights compliance, ctr. for pub. integrity (sept. 23, 2016), https://publicintegrity.org/environment/report-slams-epa-civil-rightscompliance/ [https://perma.cc/ab8s-abql]. 6 see maria ramirez fisher, on the road from environmental racism to environmental justice, 5 vill. env’t l.j. 449, 469 n.116 (1994) (“critics attack the imposition of the burden of establishing discriminatory intent on the wrong party; discriminatory intent is easy to hide. furthermore, since state action is based on multiple motives, the government always can identify a nondiscriminatory motive for its action.”) (citation omitted). 7 waterhouse, supra note 3, at 53. 8 robert j. klee, what’s good for school finance should be good for environmental justice: addressing disparate environmental impacts using state courts and constitutions, 30 colum. j. env’t l. 135, 136 (2005). 9 id. at 158–60. 10 robinson twp. v. commonwealth, 83 a.3d 901, 957 (pa. 2013). 2021] environmental rights amendment 199 rights act, and the early history of pennsylvania’s environmental rights amendment. part iii explores robinson township’s effect on jurisprudence under the environmental rights amendment, focusing on the “duty of impartiality” as it is framed in the opinion and subsequent case law. part iv argues that the duty imposes substantive obligations on state actors to cease siting environmental burdens in communities that are already disproportionately affected, as well as procedural obligations to consider the cumulative impact of environmental decision-making on affected communities when making siting and permitting decisions. then, part v analyzes whether other state constitutions provide the framework for similar developments. ii. environmental justice in pennsylvania and the united states numerous studies show that the distribution of environmental burdens in the united states is concentrated in communities of color and low-income communities. 11 this unfortunate fact is replicated within pennsylvania.12 litigants both in pennsylvania and around the country have attempted to use the equal protection clause of the fourteenth amendment and title vi of the civil rights act to hold government actors accountable for concentration of environmental hazards in their communities, but supreme court jurisprudence has effectively foreclosed the potential for such litigation by requiring private litigants to prove discriminatory intent.13 part ii.a presents the substantial evidence of environmental inequality throughout the united states and pennsylvania, and part ii.b summarizes the federal constitutional and statutory challenges to such inequality. part ii.c introduces pennsylvania’s environmental rights amendment, a provision that could serve as the basis for future environmental justice litigation. 11 for an extensive review of such studies, see luke w. cole & sheila r. foster, from the ground up: environmental racism and the environmental justice movement app. at 167–83 (2001). 12 see food & water watch, pernicious placement of pennsylvania power plants: natural gas-fired power plant boom reinforces environmental injustice (2018), https://www.foodandwaterwatch.org/sites/default/files/rpt_1806_pagasplants_w eb3.pdf [https://perma.cc/rr74-4nrd]. 13 see, e.g., washington v. davis, 426 u.s. 229, 239 (1976); alexander v. choate, 469 u.s. 287, 293 (1985); alexander v. sandoval, 532 u.s. 275, 293 (2001). 200 colum. j. race & l. [vol. 11:195 a. the distribution of environmental burdens in the united states and pennsylvania the first information about distributional environmental inequities was published in 1971 in an annual report of the white house’s council on environmental quality.14 roughly a decade later, studies published in the 1980s enhanced the public understanding that environmental burdens were inequitably distributed along race and class lines. in a 1983 study, the u.s. government accountability office found a correlation between the location of hazardous waste landfills and the racial and economic status of the surrounding communities in eight southeastern states.15 several years later, the united church of christ’s commission for racial justice conducted a nationwide study, titled toxic waste and race in the united states, that concluded that race was an important variable associated with the siting of commercial hazardous waste facilities. 16 this research set the framework for numerous other studies into the inequitable distribution of environmental hazards.17 in their 2001 book from the ground up: environmental racism and the rise of the environmental justice movement, luke w. cole18 and sheila r. foster19 surveyed the numerous 14 paul mohai & bunyan bryant, race, poverty & the distribution of environmental hazards: reviewing the evidence, race, poverty & env’t, fall 1991–winter 1992, at 24. 15 u.s. gen. acct. off., gao/rced-83-168, siting of hazardous wastes landfills and their correlation with racial and economic status of surrounding communities (1983). the study focused on epa region 4 (southeast), id., which includes alabama, florida, georgia, kentucky, mississippi, north carolina, south carolina, and tennessee. about epa region 4 (southeast), u.s. env’t prot. agency, https://www.epa.gov/aboutepa/aboutepa-region-4-southeast [https://perma.cc/jx7l-fgtu] (last visited aug. 23, 2020). 16 united church christ comm’n for racial just., toxic wastes and race in the united states: a national report on the racial and socio-economic characteristics of communities with hazardous waste sites 9 (1987). 17 see e.g., cole & foster, supra note 11, at app. at 167–83. 18 luke cole was the co-founder and director of the center on race, poverty, and the environment, a national environmental justice organization that provides legal, organizing, and technical assistance to grassroots groups in low-income communities and communities of color. luke’s legacy, ctr. on race poverty & env’t, https://crpe-ej.org/donate-main/lukes-legacy/ [https://perma.cc/d3sn-7uqm] (last visited mar. 22, 2020). he has been widely recognized as an early leader in the environmental justice movement. dennis hevesi, luke cole, court advocate for minorities, dies at 46, n.y. times (june 10, 2009), https://www.nytimes.com/2009/06/11/us/11cole.html [https://perma.cc/9ag3-8jch]. 19 sheila foster is a professor of law and public policy at georgetown university. she co-edited the law of environmental justice: theories and 2021] environmental rights amendment 201 studies and articles that analyzed the distribution of environmental hazards such as “garbage dumps, air pollution, lead poisoning, toxic waste production and disposal, pesticide poisoning, noise pollution, occupational hazards, and rat bites.”20 these studies “overwhelming[ly]” concluded that “environmental hazards are inequitably distributed by income or race.” 21 furthermore, studies comparing the distribution of hazards by income and race found that race was the more consistent predictor of exposure to environmental dangers.22 contemporary studies continue to show a substantial correlation between the location of environmental hazards and the predominant race of surrounding communities. 23 a 2018 study by environmental protection agency (epa) scientists found that “non-whites and those living in poverty face a disproportionate burden from [particulate matter]-emitting facilities.”24 the study also found that black people “in particular are likely to live in high-emission areas.”25 the third circuit court of appeals recently recognized this issue, noting that “recent studies have shown that environmental pollution, including from landfills, has a disparate impact on racial-ethnic minorities and low-income communities.”26 furthermore, since low-income communities and communities of color are home to a disproportionate number of polluting sites, they are particularly affected by the trump administration’s weakening of environmental protections.27 procedures to address disproportionate risks with michael b. gerrard. sheila foster, geo. l. https://www.law.georgetown.edu/faculty/sheila-foster/ [https://perma.cc/m7pf-v8rm] (last visited mar. 22, 2020). 20 cole & foster, supra note 11, at 54. 21 id. at 54–55. 22 id. at 55. 23 ihab mikati et al., disparities in distribution of particulate matter emission sources by race and poverty status, 108 am. j. pub. health 480 (2018). 24 id. 25 id. 26 baptiste v. bethlehem landfill co., 965 f.3d 214, 226 (3d cir. 2020) (citing christopher w. tessum et al., inequity in consumption of goods and services adds to racial-ethnic disparities in air pollution exposure, 116 proc. nat’l acad. sci. 6001, 6001 (2019); kathy seward northern, battery and beyond: a tort law response to environmental racism, 21 wm. & mary env’t l. & pol’y rev. 485, 498–505 (1997)). 27 rebecca beitsch, critics warn trump’s latest environmental rollback could hit minorities, poor hardest, hill (jan. 12, 2020, 8:00 am), https://thehill.com/policy/energy-environment/477798-critics-warn-trumpslatest-environmental-rollback-could-hit [https://perma.cc/gj9c-6z62]. 202 colum. j. race & l. [vol. 11:195 the concentration of environmental hazards in lowincome communities and communities of color, and the cumulative exposure to multiple environmental health stressors, severely impairs public health in those communities. 28 the effects of industrial development accumulate; while one single source of environmental harm may seem insignificant, the addition of many small impacts greatly increases the cause for concern.29 in the environmental justice context, the cumulative impact of exposure to disproportionate numbers of polluting facilities correlates with asthma hospitalization rates.30 in line with the national data, environmental hazards in pennsylvania are concentrated in low-income black and latinx 28 see ej 2020 glossary, u.s. env’t prot. agency, https://epa.gov/environmentaljustice/ej-2020-glossary [https://perma.cc/mjv4np2h] (last visited aug. 24, 2020) (“overburdened community—minority, lowincome, tribal, or indigenous populations or geographic locations in the united states that potentially experience disproportionate environmental harms and risks. this disproportionality can be as a result of greater vulnerability to environmental hazards, lack of opportunity for public participation, or other factors. increased vulnerability may be attributable to an accumulation of negative or lack of positive environmental, health, economic, or social conditions within these populations or places. the term describes situations where multiple factors, including both environmental and socio-economic stressors, may act cumulatively to affect health and the environment and contribute to persistent environmental health disparities.”). see also rachel morello-frosch et al., understanding the cumulative impacts of inequalities in environmental health: implications for policy, 30 health affs. 879, 881 (2011) (“numerous studies have documented the disproportionate location of hazardous waste sites, industrial facilities, sewage treatment plants, and other locally undesirable and potentially polluting land uses in communities of racial or ethnic minorities and in socially disadvantaged neighborhoods. residents living near such facilities can be exposed to more pollutants than people who live in more affluent neighborhoods located farther from these sources of pollution. the residents of communities near industrial and hazardous waste sites experience an increased risk of adverse perinatal outcomes, respiratory and heart diseases, psychosocial stress, and mental health impacts.”). 29 see indian & n. affs. can., a citizen’s guide to cumulative effects 2 (2007), https://www.aadnc-aandc.gc.ca/dam/dam-internwt/staging/texte-text/ntr_pubs_ceg_1330635861338_eng.pdf [https://perma.cc/4gm2-zg8z]. epa’s council on environmental quality (ceq) defines cumulative impact as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or nonfederal) or person undertakes such other actions.” 40 c.f.r. § 1508.7 (2020). ceq further notes that “[c]umulative impacts can result from minor but collectively significant actions taking place over a period of time.” id. 30 see emanuel alcala et al., cumulative impact of environmental pollution and population vulnerability on pediatric asthma hospitalizations: a multilevel analysis of calenviroscreen, 16 int’l j. env’t rsch. & pub. health 2683 (2019). 2021] environmental rights amendment 203 communities. 31 in fact, pennsylvania has the second largest racial “pollution gap” among all of the states.32 furthermore, a 2018 study found that pennsylvania’s 136 existing, new, and proposed fuel-fired power plants are disproportionately located near disadvantaged communities, defined as “areas with lower incomes, higher economic stress, lower educational levels and/or communities of color.”33 this distributional inequity manifests in the health of these communities, with pennsylvania’s black and latinx populations considerably more likely to experience negative health effects from pollution than its white population.34 for example, the pennsylvania department of environmental protection (padep or dep) found that the 2011 asthma hospitalization rate was five times higher for black residents of pennsylvania than for white residents.35 padep has responded to this inequity by creating an office of environmental justice, which serves “as a point of contact for pennsylvania residents in low income areas and areas with a higher number of minorities,” and has a “primary goal” of “increas[ing] communities’ environmental awareness and involvement in the dep permitting process.”36 the office has publicized a map of environmental justice areas in pennsylvania, defined as “any census tract where 20 percent or more individuals live in poverty, and/or 30 percent or more of the population is minority.”37 the office’s environmental justice 31 see food & water watch, supra note 12. 32 sydney brownstone, the 10 most polluted states for people of color, fast co. (apr. 16, 2014), https://www.fastcompany.com/3029160/the-10-mostpolluted-states-for-people-of-color [https://perma.cc/4u6f-fv87]. 33 see food & water watch, supra note 12, at 2. 34 id. at 6–7. while not correlated with race, the recent boom in unconventional gas production, referred to as “hydraulic fracturing” or “fracking,” has been concentrated in low-income, rural areas, leading to numerous negative health effects and dangers for those communities. see food & water watch, supra note 12, at 7; elena pacheco, it’s a fracking conundrum: environmental justice and the battle to regulate hydraulic fracturing, 42 ecology l.q. 373, 380 (2015). 35 pennsylvania asthma surveillance system, pa. dep’t health, https://www.health.pa.gov/topics/programs/asthma/pages/surveillancereports.aspx [https://perma.cc/4gev-ctpt] (last visited mar. 22, 2020). in its study, padep did not attribute the differing asthma hospitalization rate to any particular cause. 36 office of environmental justice, pa. dep’t env’t prot., https://www.dep.pa.gov/publicparticipation/officeofenvironmentaljustice/page s/default.aspx [https://perma.cc/3mpv-tyrt] (last visited aug. 24, 2020). 37 pa. environmental justice areas, pa. dep’t env’t prot. https://www.dep.pa.gov/publicparticipation/officeofenvironmentaljustice/page s/pa-environmental-justice-areas.aspx [https://perma.cc/62hg-k8hr] (last visited aug. 24, 2020). 204 colum. j. race & l. [vol. 11:195 advisory work group also helped create padep’s 2004 enhanced public participation policy, which triggers community outreach, public participation, and public meeting requirements when certain types of permits are proposed in environmental justice areas.38 the enhanced public participation policy grew out of a 2001 report from pennsylvania’s then-formed environmental justice work group, 39 which detailed pennsylvania’s environmental justice history and recommended ways to “level[] the playing field” by devoting attention, energy, and resources to “the environmental health and safety of minority and low-income communities.”40 along with its suggestion for enhanced public participation in the permitting process, the report recommended that padep examine the feasibility of mitigating the cumulative and/or disparate impacts of environmental permitting decisions and determine whether the benefits of the proposed activity outweigh the harm to the community. 41 these mitigation measures have not been implemented in state policy, and pennsylvania’s low-income communities and communities of color continue to be disproportionately affected by the state’s permitting of environmental hazards.42 of course, in pennsylvania and nationally, the correlation between race, socioeconomic status, and the distribution of environmental burdens does not establish causation. the siting of environmental hazards in communities of color can be explained—at least in part—by ostensibly race-neutral siting criteria and market factors including cheap land values and appropriate zoning. 43 yet, those “race-neutral” siting factors must be contextualized within the country’s history of discriminatory land use policies that include explicitly racial 38 pa. dep’t env’t prot. pol’y off., 012-0501-002, environmental justice public participation policy (apr. 24, 2004), http://www.depgreenport.state.pa.us/elibrary/getdocument?docid=7918&docn ame=environmental%20justice%20public%20participation%20 policy.pdf [https://perma.cc/r2sj-5p8v]. this process applies to npdes (water) permits, air permits, waste permits, mining permits, land application of biosolids permits, and cafo (concentrated animal feeding operation) permits. id. at 8. 39 id. at 3. 40 env’t just. work grp, report to the pennsylvania department of environmental protection 13 (june 2001), http://files.dep.state.pa.us/publicparticipation/office%20of%20environmental %20advocacy/lib/environadvocate/ejreportfinal.pdf [https://perma.cc/32bmgu9e] 41 id. at 16–18. 42 see supra notes 31–35 and accompanying text. 43 see cole & foster, supra note 12, at 70–74. 2021] environmental rights amendment 205 zoning,44 racially restrictive covenants,45 and redlining.46 these historical practices continue to drive segregation: as examples, detroit, chicago, st. louis, and philadelphia all extensively utilized racially restrictive covenants, and those cities ranked first, eighth, tenth, and twelfth respectively in african american residential segregation as of 1990.47 furthermore, zoning bodies have historically “down-zoned” black communities to industrial status while zoning similarly situated white neighborhoods as “residential.” 48 down-zoning then creates a cycle where new industrial development lowers land values, thereby attracting more industry, thereby lowering land values further. 49 put generally, present-day siting criteria overlay a history of land use decision-making that is all but race-neutral, and those criteria continue to concentrate polluting facilities in low-income communities of color.50 the question then becomes: what role can and should the law play in remedying that inequity? 44 see jon c. dubin, from junkyards to gentrification: explicating a right to protective zoning in low-income communities of color, 77 minn. l. rev. 739, 744–45 (1993) (“shortly after the turn of the century, when legally enforced segregation approached its zenith, several southern and border cities enacted strict racial zoning ordinances designating separate residential districts for whites and blacks. such ordinances were a response to the mass migration of southern rural blacks to the cities and to white residents’ fears of racial amalgamation. baltimore passed the first such ordinance in 1910 and within six years more than a dozen cities followed suit.”). 45 see id. at 751. (“the use of racially restrictive covenants mushroomed during the 1930s and 1940s, particularly in the northern, western, and midwestern regions of the country.”). 46 see id. at 752 (“the [federal housing administration] also encouraged the use of racial covenants and denied mortgage insurance to entire ‘redlined’ black and integrated neighborhoods based on the belief that black residents caused a devaluation of property.”). redlining “denotes the practice of denying mortgage financing on property located within certain geographic areas of a city.” id. at 752 n.57 (quoting marcia duncan et al., redlining practices, racial resegregation, and urban decay: neighborhood housing services as a viable alternative, 7 urb. l. 510, 513 (1975)). 47 see dubin, supra note 44, at 751 n. 54 (citation omitted). 48 see cole & foster, supra note 12, at 73. 49 id. at 72. 50 other ostensibly race-neutral siting criteria have similar effects. see id. at 73–74 (“proximity to major transportation routes may also skew the siting process toward communities of color, as freeways appear to be disproportionately sited in such communities. similarly, locational criteria—prohibitions against the siting of waste facilities near neighborhood amenities like hospitals and schools—skew the process toward underdeveloped communities of color, since such communities are less likely to have hospitals and schools. hence, siting criteria that prohibit the siting of waste facilities close to such facilities perpetuate the historical lack of such amenities in those communities.”). 206 colum. j. race & l. [vol. 11:195 b. federal environmental justice litigation under the equal protection clause and civil rights act in response to the overwhelming concentration of environmental hazards in low-income communities and communities of color outlined above, community groups and public interest legal organizations nationwide have brought numerous suits under the fourteenth amendment’s equal protection clause and title vi of the civil rights act of 1964 challenging the practice of discriminatory siting. this litigation has been unsuccessful in holding governmental actors accountable for siting and permitting practices that disproportionately harm black and latinx communities, primarily because the supreme court has proven reluctant to impose liability on governmental actors without proof that the action arose from an intent to discriminate.51 the text of the fourteenth amendment, which prohibits states from “deny[ing] to any person within [their] jurisdiction the equal protection of the laws,”52 would appear to prohibit the enforcement of siting and permitting schemes that sacrifice the health of low-income communities and communities of color for the benefit of wealthier, whiter communities. as such, numerous plaintiffs have brought suits alleging that the siting of landfills in their predominantly black communities violated their rights under the equal protection clause. 53 yet, these claims have failed because the plaintiffs could prove only that the landfill siting produced disproportionate racial impacts, rather than prove that the government acted with discriminatory intent.54 following the 1976 case washington v. davis, “a law or other official act . . . is [not] unconstitutional [s]olely because it has a racially disproportionate impact.” 55 furthermore, even when plaintiffs can prove that governmental action was “motivated in part by a racially discriminatory purpose,” the government may still escape liability if it can prove that “the same decision would have resulted even had the impermissible 51 see washington v. davis, 426 u.s. 229, 239 (1976) (“[a] law or other official act . . . is [not] unconstitutional solely [sic] because it has a racially disproportionate impact.”). 52 u.s. const. amend. xiv § 1. 53 see, e.g., r.i.s.e. v. kay, 977 f.2d 573 (4th cir. 1992); east-bibb twiggs neighborhood ass’n v. macon bibb plan. & zoning comm’n, 896 f.2d 1264 (11th cir. 1989). 54 r.i.s.e., 977 f.2d at 2; east-bibb twiggs neighborhood ass’n, 896 f.2d at 1267. 55 washington, 426 u.s. at 239. 2021] environmental rights amendment 207 purpose not been considered.”56 while the court in village of arlington heights v. metropolitan housing development corporation stated that the discriminatory impact of official action could serve as evidence of discriminatory intent,57 it has since ignored this aspect of its opinion. 58 as a result, environmental justice plaintiffs must look elsewhere for proof that governmental actors intended to discriminate when siting environmental hazards, but discriminatory intent is easy to hide, and siting decisions are often based on multiple criteria that are facially non-discriminatory.59 similar roadblocks have stalled environmental litigation brought under title vi of the civil rights act. title vi is the most far-reaching part of the civil rights act, since it requires compliance by all recipients of federal funds. 60 section 601 mandates that “[n]o person in the united states shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” 61 section 602 authorizes and directs federal agencies, including the epa, to promulgate antidiscrimination regulations that give force to section 601.62 as title vi targets discrimination generally, it has been the statutory basis for significant environmental justice litigation.63 this litigation has also proven unsuccessful. as with the equal protection clause, the supreme court has held that challengers to government action under section 601 of the civil 56 vill. of arlington heights v. metro. hous. dev. corp., 429 u.s. 252, 270 n.21 (1977). 57 id. at 266. 58 robert nelson, to infer or not to infer a discriminatory purpose: rethinking equal protection doctrine, 61 n.y.u. l. rev. 334, 341 (1986) (citing hunter v. underwood, 471 u.s. 222 (1985); wayte v. united states, 470 u.s. 598 (1985); mobile v. bolden, 446 u.s. 55, 67–68 (1980); personnel adm'r of mass. v. feeney, 442 u.s. 256, 272 (1979)). 59 see fisher, supra note 6, at 469 n.116 (“critics attack the imposition of the burden of establishing discriminatory intent on the wrong party; discriminatory intent is easy to hide. furthermore, since state action is based on multiple motives, the government always can identify a non-discriminatory motive for its action.”). 60 see tony lopresti, realizing the promise of environmental civil rights: the renewed effort to enforce title vi of the civil rights act of 1964, 65 admin. l. rev. 757, 763 (2013). 61 42 u.s.c. § 2000d (2018). 62 42 u.s.c. § 2000d-1 (2018). see also 40 c.f.r. §§ 7.10–7.135 (the epa’s nondiscrimination regulations promulgated pursuant to section 602). 63 see, e.g., chester residents concerned for quality living v. seif, 132 f.3d 925 (3d cir. 1997), vacated, 524 u.s. 974 (1998); s. camden citizens action v. n.j. dep’t env’t prot., 274 f.3d 771 (3d cir. 2001). 208 colum. j. race & l. [vol. 11:195 rights act must prove that the government acted with a discriminatory intent; proving that a particular government action had a disparate impact on certain groups is insufficient to establish a civil rights violation. 64 for the reasons outlined above, plaintiffs face near-insurmountable burdens in establishing that officials intended to discriminate when making siting decisions. accordingly, most cases of environmental discrimination cannot be litigated under section 601. while litigants must prove that violations of section 601 of the civil rights act arose from discriminatory intent in order to obtain restitution, agencies can still prohibit disparate impact discrimination through regulation.65 as a result, private litigants have attempted to use section 602 regulations to challenge discriminatory siting of environmental hazards, and one such lawsuit—chester residents concerned for quality living v. seif—directly challenged siting practices in pennsylvania.66 the town of chester is located in delaware county, pennsylvania. as of 2002, delaware county, excluding chester, was 6.2% african american, while chester itself was 65% african american.67 additionally, chester’s median family income was 45% lower than the rest of delaware county’s and its poverty rate was more than three times higher.68 in an emblematic case of environmental racism, five of the seven commercial waste facilities that padep permitted in delaware county between 1986 and 1996 were located in chester. 69 furthermore, the county processed all of its municipal waste and sewage in chester, and over 60% of the county’s waste-processing industries were located in the township.70 chester residents organized to challenge the continued siting of waste facilities in their community. in chester residents 64 see alexander v. choate, 469 u.s. 287, 293 (1985) (“title vi [of the civil rights act of 1964] itself directly reached only instances of intentional discrimination.”). 65 see id. (“[a]ctions having an unjustifiable disparate impact on minorities could be redressed through agency regulations designed to implement the purposes of title vi.”); but see alexander v. sandoval, 532 u.s. 275, 281–82 (2001) (assuming for the purposes of deciding the case that “regulations promulgated under § 602 of title vi may validly proscribe activities that have a disparate impact on racial groups” but noting that such regulations are in “considerable tension with the rule of bakke and guardians that § 601 forbids only intentional discrimination”). 66 chester residents concerned for quality living, 132 f.3d. at 927. 67 cole & foster, supra note 11, at 34. 68 id. 69 id. at 34–35. 70 id. at 35. 2021] environmental rights amendment 209 concerned for quality living v. seif, chester residents concerned for quality living (crcql), a local grassroots environmental justice organization, 71 argued that padep’s issuance of a permit to soil remediation services to operate a waste processing facility in chester violated section 601 of the civil rights act, the epa’s civil rights regulations promulgated pursuant to section 602, and padep’s assurance that it would not violate those regulations.72 the third circuit considered the section 602 claim on appeal, and held that chester residents had a private right of action under regulations passed pursuant to section 602 to sue padep for siting practices that had racially disparate impacts. 73 however, that potentially-landmark decision was vacated after padep’s denial of an operations permit to soil reclamation services rendered the case moot.74 soon after chester, the supreme court shut the door on similar litigation, holding that no private right of action existed under title vi to enforce section 602 regulations.75 in alexander v. sandoval, a driver’s license applicant claimed that the department of justice violated an anti-discrimination regulation promulgated pursuant to section 602 by administering state driver's license examinations only in english, which had the effect of subjecting non-english speakers to discrimination based on their national origin.76 justice scalia wrote for the majority: “neither as originally enacted nor as later amended does title vi display an intent to create a freestanding private right of action to enforce regulations promulgated under section 602. we therefore hold that no such right of action exists.”77 as a result, one more avenue for environmental justice was closed to potential litigants. after sandoval prevented litigants from enforcing section 602 regulations directly, environmental justice activists attempted to enforce those regulations through 42 u.s.c. § 1983, 71 chester environmental justice, ejnet, http://www.ejnet.org/chester/ [https://perma.cc/ml2n-8v7s] (last visited mar. 23, 2020). 72 chester residents concerned for quality living v. seif, 132 f.3d 925, 927–28 (3d cir. 1997). 73 id. at 937. 74 seif v. chester residents concerned for quality living, 524 u.s. 974 (1998); rick kearns, chester lawsuit declared moot by u.s. supreme court: environmental justice still doable through courts despite recent supreme court decision, ejnet (oct. 6, 1998), https://www.ejnet.org/chester/moot.html [https://perma.cc/8jpc-6znu]. 75 alexander v. sandoval, 532 u.s. 275, 293 (2001). 76 id. at 278–79. 77 id. at 293. 210 colum. j. race & l. [vol. 11:195 a provision of the civil rights act of 1871, which provides a remedy for deprivation under color of state law of “any rights . . . secured by the constitution and laws.” 78 in south camden citizens in action v. new jersey department of environmental protection, a community organization sued the new jersey department of environmental protection (njdep), claiming that its decision to issue an air pollution permit to a cement processing facility would produce a racially discriminatory impact.79 prior to the sandoval decision, the new jersey district court held that plaintiffs could sue njdep under section 602.80 immediately following sandoval and its preclusion of such a section 602 claim, the district court allowed the plaintiffs to amend their complaint and add a claim to enforce section 602 through § 1983.81 however, on appeal, the third circuit held that disparate impact regulations promulgated pursuant to section 602 cannot create private rights enforceable under § 1983, since only congress, and not administrative agencies or courts, can create such rights.82 after much litigation, environmental justice advocates were once again unable to hold governmental actors accountable for siting and permitting decisions that disproportionately harmed low-income communities and communities of color. federal law in general had failed to provide private causes of action to combat environmental discrimination, rendering state law the only viable avenue for such actions.83 c. pennsylvania’s environmental rights amendment in may 1971, pennsylvania formally adopted its environmental rights amendment under article 1, section 27 of its constitution.84 the environmental rights amendment arose from the pennsylvania legislature’s general effort, beginning in 1965, to reverse the history of widespread environmental destruction in the state. 85 representative franklin l. kury 78 42 u.s.c. § 1983 (2018). 79 s. camden citizens action v. n.j. dep’t env’t prot., 274 f.3d 771, 775–76 (3d cir. 2001). 80 id. at 776. 81 id. 82 id. at 790. 83 klee, supra note 8, at 160. 84 pa. const. art. i, § 27. 85 pennsylvania’s environmental rights amendment, conservation advoc., https://conservationadvocate.org/pennsylvanias-environmental-rightsamendment/ [https://perma.cc/w8jx-8lyt] (last visited mar. 22, 2020); robinson twp. v. commonwealth, 83 a.3d 901, 976 (pa. 2013) (“as we have explained, pennsylvania has a notable history of what appears retrospectively to have been a shortsighted exploitation of its bounteous environment, affecting its minerals, its water, its air, its flora and fauna, and its people. the lessons 2021] environmental rights amendment 211 drafted the amendment and introduced the associated house bill, citing the need for an “over-all governmental framework in which to carry on the fight for conservation . . . that is clearly stated and beyond question . . . [and] will firmly guide the legislature, the executive and the courts alike.” 86 as pennsylvania law requires,87 the general assembly approved the amendment in two successive legislative sessions—first in 1969– 70 and then in 1971–72—before a majority of voters approved it in a public referendum on may 18, 1971.88 as enacted, the amendment reads as follows: the people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. as trustee of these resources, the commonwealth shall conserve and maintain them for the benefit of all the people.89 at the time of its proposal, commentators hoped that the amendment would be more than a “statement of policy,” and would instead give “citizens a weapon which may be used in the courts, in litigation, to protect and enhance the quality of [their] environment.”90 representative kury claimed that he drafted the amendment to “strengthen substantially the legal weapons available to protect our environment from further destruction.”91 despite the legislature’s clear intention for the amendment to serve as a substantive legal tool in the hands of pennsylvania’s citizens, the pennsylvania judiciary soon undermined the amendment’s force. in payne v. kassab, responding to an action to enjoin a street-widening project that would result in the taking of part of a river, the commonwealth learned from that history led directly to the environmental rights amendment, a measure which received overwhelming support from legislators and the voters alike.”). 86 john c. dernbach & edmund j. sonnenberg, a legislative history of article i, section 27 of the constitution of the commonwealth of pennsylvania, 24 widener l.j. 181, 189–90 (2015). 87 see pa. const. art. xi, § 1. 88 dernbach & sonnenberg, supra note 86, at 184. 89 pa. const. art. i, § 27. 90 robert broughton, analysis of hb 958, the proposed pennsylvania environmental declaration of rights, 41 pa. bar ass’n q. 421 (1969–70), reprinted in dernbach & sonnenberg, supra note 86, at 220. 91 dernbach & sonnenberg, supra note 86, at 271. 212 colum. j. race & l. [vol. 11:195 court92 established a three-part test for determining whether a state actor violated its public trust duties under the environmental rights amendment: the court’s role must be to test the decision under review by a threefold standard: (1) was there compliance with all applicable statutes and regulations relevant to the protection of the commonwealth’s public natural resources? (2) does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum? (3) does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?93 the court claimed that this test established a “realistic” rather than “legalistic” standard for judicial review,94 and the payne test quickly replaced the text of the environmental rights amendment as the “all-purpose test for applying article i, section 27 when there is a claim that the amendment itself has been violated.”95 on its face, payne established an almost insurmountable bar for challengers to state action. as long as the state actor in question complied with applicable statutes and regulations, the courts would largely defer to the state’s decision-making process.96 accordingly, during the roughly four decades in which payne was good law, only one of twenty-four court cases decided under the payne test found that the state had violated the 92 the commonwealth court is one of pennsylvania’s two statewide intermediate appellate courts. it is primarily responsible for matters involving state and local governments and regulatory agencies, and it acts as a trial court in suits filed by or against the commonwealth. learn, unified jud. sys. pa., http://www.pacourts.us/learn/ [https://perma.cc/v7cm-vhj5] (nov. 2016). 93 payne v. kassab, 312 a.2d 86, 94 (pa. commw. ct. 1973), aff’d, 323 a.2d 407 (pa. commw. ct. 1974), aff’d, 361 a.2d 263 (pa. 1976). 94 id. 95 john c. dernbach et al., recognition of environmental rights for pennsylvania citizens: pennsylvania environmental defense foundation v. commonwealth of pennsylvania, 70 rutgers u. l. rev. 803, 812–13 (2018) [hereinafter dernbach et al., recognition of environmental rights] (quoting pa. env’t def. found. v. commonwealth, no. 228 m.d. 2012, 2013 wl 3942086, at *8 (pa. commw. ct. jan. 22, 2013)). 96 see payne, 361 a.2d at 273 (“having determined that act 120 was complied with, we have no hesitation in deciding that the appellee commonwealth of pennsylvania has not failed in its duties as trustee under the constitutional article.”). 2021] environmental rights amendment 213 environmental rights amendment, and only eight of fifty-five cases heard by the environmental hearing board—which hears appeals of padep decisions97—found the same.98 after four decades of undermining the environmental rights amendment under the payne test, the pennsylvania supreme court did a significant about-face in its 2013 plurality opinion in robinson township v. commonwealth. 99 in a landmark opinion, the supreme court dismissed payne as incompatible with the environmental rights amendment’s text and interpreted the amendment to provide a number of significant protections to citizens.100 while the section of the opinion that interprets and applies the environmental rights amendment was joined by a mere plurality of the justices, making it non-precedential, much of that section’s content was reiterated in the subsequent majority opinion of pennsylvania environmental defense foundation v. commonwealth (pedf).101 the pedf opinion likewise dismissed the payne test and interpreted the text of the amendment as granting environmental protections that largely overlap with those granted by the plurality in robinson township.102 part iii of this note further discusses the degree to which the pedf decision codified—or failed to codify—key aspects of the robinson township opinion. the robinson township decision overhauled pennsylvania’s jurisprudence under the environmental rights amendment and serves as the current bedrock for environmental 97 welcome, pa. env’t hearing bd., http://ehb.courtapps.com/public/index.php [https://perma.cc/bw2r-grqq] (last visited mar. 22, 2020). 98 john c. dernbach & marc prokopchak, recognition of environmental rights for pennsylvania citizens: a tribute to chief justice castille, 53 duq. l. rev. 335, 344–48 (2015). 99 robinson twp. v. commonwealth, 83 a.3d 901, 967 (pa. 2013). robinson township again reached the pennsylvania supreme court in 2016, although that opinion does not concern the environmental rights amendment and is therefore not discussed in this note. robinson twp. v. commonwealth, 147 a.3d 536 (pa. 2016). 100 id. 101 see frederick v. allegheny twp. zoning hearing bd., 196 a.3d 677, 713 n.2 (pa. commw. ct. 2018) (ceisler, j., dissenting) (“our court has, in the past, expressed a clear desire to limit the robinson township plurality’s persuasive power as much as possible. . . . however, given the supreme court’s pedf ii opinion, in which the majority liberally quotes and repeatedly cites robinson township, i believe we must now recognize that authority of former chief justice castille’s plurality opinion has been greatly enhanced.”) (citation omitted). 102 pa. env’t def. found. v. commonwealth, 161 a.3d 911, 916 (pa. 2017). 214 colum. j. race & l. [vol. 11:195 constitutionalism in the state.103 it also presents a new inroad for environmental justice litigation. part iii summarizes this decision and subsequent case-law in this context. iii. robinson township and the duty of impartiality the robinson township court finally established the environmental rights amendment as a legitimate and practical tool for environmental advocates in pennsylvania. part iii.a provides an overview of the robinson township opinion and describes its relationship to the pennsylvania supreme court’s later pedf decision.104 part iii.b narrows in on these decisions’ still-unsettled environmental justice implications and outlines two alternate understandings of pennsylvania’s obligations under the environmental rights amendment. under the robinson township approach, state actors are bound by a substantive duty to avoid environmental decision-making that disproportionately harms certain communities; 105 under the pedf approach, they must merely consider those disproportionate impacts in their decision-making process.106 as part iii.b illustrates, neither of these two understandings has firmly settled in pennsylvania environmental law, leaving room for environmental justice advocates to shape the law through future litigation. a. the robinson township and pedf decisions in robinson township, seven municipalities, an environmental organization, two individuals, and a physician collectively challenged several provisions of act 13 of 2012, a set of amendments to pennsylvania’s oil and gas act designed to foster unconventional gas production (hydraulic fracturing or fracking).107 among a number of other claims, the challengers 103 john c. dernbach et al., robinson township v. commonwealth of pennsylvania: examination and implications, 67 rutgers u. l. rev. 1169, 1195 (2015) [hereinafter dernbach et al., examination and implications] (“the plurality’s opinion in robinson township, however, opens the door to fresh interpretations of constitutionally-embedded environmental rights provisions, especially those found to be ‘on par’ with other constitutional rights.”). 104 pa. env’t def. found., 161 a.3d at 916. 105 see robinson twp. v. commonwealth, 83 a.3d 901, 980 (pa. 2013) (“this disparate effect is irreconcilable with the express command that the trustee will manage the corpus of the trust for the benefit of ‘all the people.’ a trustee must treat all beneficiaries equitably in light of the purposes of the trust.”) (quoting pa. const. art. i, § 27). 106 see pa. env’t def. found., 161 a.3d at 933 (“the duty of impartiality requires the trustee to manage the trust so as to give all of the beneficiaries due regard for their respective interests in light of the purposes of the trust.”). 107 dernbach & prokopchak, supra note 98, at 352. 2021] environmental rights amendment 215 argued that several of the act’s provisions violated the environmental rights amendment. 108 the court ruled unconstitutional sections of the act that asserted that the act preempted and superseded all local regulation of oil and gas operations;109 that mandated state-wide uniformity among local ordinances to allow for “the reasonable development of oil and gas resources”;110 that required localities to permit industrial uses as a matter of right in every type of pre-existing zoning district; 111 and that mandated the padep to waive setback requirements for gas development as long as a permit applicant submitted a plan to protect commonwealth waters. 112 of particular relevance in the environmental justice context, the court based its ruling in part on the fact that the blanket provisions of the ordinance ignored the reality that industrial uses would “carry much heavier environmental and habitability burdens [in some communities] than others.” 113 the court reasoned that the commonwealth could not fulfill its mandate to “manage the corpus of the trust for the benefit of ‘all the people’” if it could not consider the disparate effects of industrial uses in its siting decisions.114 in its ruling, the court dismissed the payne test as incompatible with the text and purpose of the amendment.115 the court identified three primary infirmities in the payne test: that it described the commonwealth’s obligations in far narrower terms than the amendment itself; that it assumed that judicial relief was contingent upon legislative action; and that it minimized the constitutional duties of executive agencies and the judicial branch.116 as a result of these infirmities, the robinson township court turned to the text of the amendment and identified three clauses therein.117 the court found that the amendment’s first clause establishes a private right “of citizens to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment”; it also “affirms a limitation 108 robinson twp., 83 a.3d at 913. 109 58 pa. cons. stat. § 3303 (2012) (“the commonwealth by this section, preempts and supersedes the local regulation of oil and gas operations regulated by the environmental acts, as provided in this chapter.”). 110 id. § 3304 (b). 111 id. § 3304 (b)(3). 112 robinson twp., 83 a.3d at 971–1000. 113 id. at 980. 114 id. 115 id. at 967. 116 id. 117 id. at 950. 216 colum. j. race & l. [vol. 11:195 on the state’s power to act contrary to this right.” 118 the amendment’s second and third clauses establish pennsylvania’s public natural resources as part of a public trust under the common ownership of all people and impose fiduciary duties on the commonwealth to conserve and maintain those resources.119 the court interpreted the scope of “public natural resources” broadly and as encompassing “not only state-owned lands, waterways, and mineral reserves, but also resources that implicate the public interest, such as ambient air, surface and ground water, wild flora, and fauna (including fish) that are outside the scope of purely private property.”120 the court also recognized that, in enacting the environmental rights amendment, the pennsylvania legislature intended the definition of “public natural resources” to “change over time to conform, for example, with the development of related legal and societal concerns.”121 rather than merely affirming that the state holds public natural resources in trust, the robinson township court described at length the specific fiduciary duties imposed upon the state. 122 the court held that state actors have duties “both negative (i.e., prohibitory) and affirmative (i.e., implicating enactment of legislation and regulations)” over the public natural resources encompassed by the amendment. 123 furthermore, drawing on private trust law, the robinson township court identified three primary fiduciary duties—prudence, loyalty, and impartiality—under which the commonwealth is bound in its 118 id. at 951. 119 id. at 954–56. these public trust duties expand upon the traditional american notion of the public trust doctrine, which historically centers on “[t]he principle that navigable waters are preserved for the public use, and that the state is responsible for protecting the public’s right to the use.” public-trust doctrine, black’s law dictionary (11th ed. 2019). see also ill. cent. r.r. co. v. illinois, 146 u.s. 387, 459 (1892) (“the soil under navigable waters being held by the people of the state in trust for the common use and as a portion of their inherent sovereignty, any act of legislation concerning their use affects the public welfare.”). 120 robinson twp., 83 a.3d at 955. legislative history also suggests that “public natural resources” has a broad scope, with representative kury citing air pollution from vehicles on roads and highways as one of the environmental harms the amendment was meant to remediate. dernbach & sonnenberg, supra note 86, at 189. 121 robinson twp., 83 a.3d at 975. the court noted that act 13 and fracking affect the public natural resources of surface and ground water, ambient air, and aspects of the natural environment in which the public has an interest. id. at 975. 122 id. at 954–59. 123 id. at 955–56. 2021] environmental rights amendment 217 role as trustee of pennsylvania’s public natural resources.124 the first of these duties requires trustees “to exercise ordinary skill, prudence, and caution in managing the corpus of the trust”;125 the second requires them to “administer [the] trust solely in [the] beneficiary’s interest.”126 it is the third of these duties—the duty of impartiality—that directly relates to the equitable distribution of environmental hazards. in describing the duty of impartiality, the court stated that “dealing impartially with all beneficiaries means that the trustee must treat all equitably in light of the purposes of the trust.”127 applying this duty, provisions of act 13 were found unconstitutional when the legislature’s failure “to account for local conditions cause[d] a disparate impact upon beneficiaries of the trust.”128 furthermore, the court found that the act violated the duty of impartiality because “the department of environmental protection [was] not required, but [was] merely permitted, to account for local concerns in its permit decisions . . . [which] fail[ed] to ensure that any disparate effects [were] attenuated.”129 the court likewise took issue with the fact that the act “marginalize[d] participation by residents, business owners, and their elected representatives with environmental and habitability concerns.”130 the court enjoined the application and enforcement of the sections of the act that violated these trustee duties.131 because it was a plurality opinion, robinson township itself is merely persuasive on future courts. 132 however, the pennsylvania supreme court’s majority opinion in pedf made much of its analysis in robinson township binding law. 133 importantly, that opinion—like robinson township—relied on private trust law to determine that the state was bound by a duty of impartiality in managing its public trust assets.134 124 id. at 957. 125 id. 126 id. 127 id. at 959. 128 id. at 984. 129 id. 130 id. 131 id. at 1000. 132 dernbach et al., recognition of environmental rights, supra note 95, at 813. 133 see pa. env’t def. found. v. commonwealth, 161 a.3d 911 (pa. 2017). 134 id. at 930–33. 218 colum. j. race & l. [vol. 11:195 in pedf, an environmental organization challenged the commonwealth’s decision to utilize proceeds from oil and gas leases for non-conservation purposes as violating the state’s trustee duties.135 the pennsylvania supreme court held that state entities could use proceeds generated from public trust assets only for conservation and maintenance purposes.136 in doing so, the court solidified robinson township’s rejection of the payne test and declared that the text of the amendment “contains an express statement of the rights of the people and the obligations of the commonwealth with respect to the conservation and maintenance of our public natural resources.” 137 the court also quoted robinson township’s imposition of the duties of prudence, loyalty, and impartiality, and stated that “[t]he duty of impartiality requires the trustee to manage the trust so as to give all of the beneficiaries due regard for their respective interests in light of the purposes of the trust.”138 the court did not explicate on the duty further, nor reiterate the robinson township plurality’s claim that the duty requires state actors to attenuate disparate impacts arising from their environmental decision-making. as a result, the aspects of the robinson township opinion that most directly relate to the environmental justice concerns discussed in part ii of this note remain merely persuasive on pennsylvania courts. part iii.b discusses the ramifications of this fact and examines the still uncertain role of the duty of impartiality after pedf. b. environmental justice under the revamped environmental rights amendment in its robinson township opinion, the court never connects its concerns about disparate environmental impacts to racial or socioeconomic discrimination. yet, the court’s central concern—the permitting of industrial uses without regard to the preexisting character of the affected community—parallels environmental justice advocates’ concerns about siting additional environmental hazards in communities that already bear disproportionate burdens. as the court recognized, permitting industrial uses in certain communities creates a greater harm than permitting them elsewhere.139 that is especially true when those communities are already encumbered by other industrial facilities.140 if the duty of impartiality requires state actors to 135 id. at 925. 136 id. at 935. 137 id. at 916. 138 id. at 932–33. 139 robinson twp. v. commonwealth, 83 a.3d 901, 980 (pa. 2013). 140 see supra notes 28–30 and accompanying text. 2021] environmental rights amendment 219 consider local factors that cause certain communities to be disproportionately impacted by siting decisions, there is no reason why those factors could not encompass the cumulative environmental risks already facing overburdened communities. in this regard, robinson township can be understood to have set the stage for environmental justice litigation challenging the continued siting of environmental hazards in low-income communities and communities of color that already bear a disproportionate number of polluting facilities. yet following robinson township and pedf, pennsylvania courts have not further explicated the state’s exact obligations under the duty of impartiality, and the robinson township and pedf opinions in fact point to different understandings of those obligations. this section accordingly analyzes different ways this duty might be understood under current law, specifically as it relates to the siting and permitting of environmental burdens in overburdened communities. pedf, unlike robinson township, was a binding majority opinion. the pedf court described the duty of impartiality as “requir[ing] the trustee to manage the trust so as to give all of the beneficiaries due regard for their respective interests in light of the purposes of the trust.”141 taken alone, this paragraph may be read as imposing on the state only procedural requirements to consider the interests of all trust beneficiaries—in this case, the communities affected by environmental decision-making—before making a decision that may or may not align with those interests. such an understanding would roughly follow the model imposed by statutes such as the national environmental policy act (nepa), under which the judiciary analyzes whether a federal agency adequately considered and disclosed its impact on the environment as a matter of procedure, rather than considering the substance or merits of an agency action.142 in contrast, the plurality opinion in robinson township points to the duty of impartiality as a substantive duty that requires agencies to avoid environmental decisions that produce disparate impacts on certain communities. as discussed above, the robinson township court found that the duty of impartiality had been violated when the legislature’s failure “to account for local conditions cause[d] a disparate impact upon beneficiaries of 141 pa. env’t def. found., 161 a.3d at 933. 142 philip michael ferester, revitalizing the national environmental policy act: substantive law adaptations from nepa’s progeny, 16 harv. env’t l. rev. 207, 208 (1992). 220 colum. j. race & l. [vol. 11:195 the trust,” and when the legislature “fail[ed] to ensure that any disparate effects [were] attenuated.”143 while the first failure aligns with the sort of procedural considerations that the pedf court would adopt, the second failure suggests that the legislature would violate its fiduciary duty of impartiality if it produced disparate impacts without attenuating those impacts, thereby imposing a more substantive obligation on the state. this substantive obligation is reflected elsewhere in the opinion, such as in the court’s insistence that “the disparate impact on some citizens sanctioned by section 3304 of act 13 [is] incompatible with the express command of the environmental rights amendment.”144 in delaware riverkeeper network v. commonwealth, which was adjudicated after robinson township and pedf, the environmental hearing board had the opportunity to further examine the relationship between the duty of impartiality and state siting and permitting decisions.145 in a consolidated appeal, environmental organizations and private residents challenged padep’s decision to issue and reissue permits for fracking wells.146 the appellants claimed that the department “breached its duty of impartiality by treating the geyer well site as if it were no different than any other wellsite, despite the presence of a large, health-sensitive population nearby—children and by approving an unknown amount of further degradation to local air quality in a community that they assert is already suffering from degraded air.”147 in analyzing this claim, the board repeated pedf’s characterization of the duty of impartiality, noting that it “requires the trustee to manage the trust so as to give all of the beneficiaries due regard for their respective interests in light of the purposes of the trust.”148 ultimately, the board concluded that the department had not “failed to give due regard to the interests of the various beneficiaries of the public natural resources in the vicinity of the geyer well site.”149 however, its reasoning rested primarily on issues of evidence and failed to reveal much about the board’s understanding of padep’s obligations under the duty of impartiality. the board found that the appellant’s expert report 143 robinson twp., 83 a.3d at 984. 144 id. at 981. 145 del. riverkeeper network v. commonwealth, no. 2014-142-b, 2015157-b, 2018 wl 2294492 (pa. env’t hearing bd. may 11, 2018). 146 id. 147 id. at *32 (citations omitted). 148 id. at *25. 149 id. at *33. 2021] environmental rights amendment 221 “was [not] sufficiently related to the particular circumstances at the geyer well site to require the department to have given it additional consideration beyond the review it conducted and the requirements outlined in the geyer well permits,” and decided that the appellants had “not proven that there will be unreasonable degradation of the local air quality as a result of the department’s permitting action.”150 the board did not specify what the department’s obligations would have been had appellants established that the greyer well site would have unreasonably degraded the local air quality. as a result, the board’s opinion failed to further solidify an understanding of the duty of impartiality in pennsylvania environmental law. following pedf, padep has seemed to adopt a procedural understanding of the duty of impartiality. in 2018, padep’s policy office proposed an amendment to its environmental justice public participation policy that provides non-binding procedures for community input when a company applies for an environmental permit to operate in an environmental justice community. in its proposed amendment, padep suggests that these procedures for community input satisfy the department’s obligations to low-income communities and communities of color under the environmental rights amendment.151 the proposed public participation policy reflects a procedural understanding of the duty of impartiality, which is satisfied by consideration of a decision’s impact on affected communities. however, a deeper analysis of the duty of impartiality in pennsylvania law reveals that padep and the pennsylvania courts should also adopt the robinson township decision’s substantive requirements. part iv accordingly argues 150 id. 151 pa. dep’t env’t prot. pol’y off., 012-0501-002, draft: environmental justice public participation policy 3 (june 13, 2018), http://files.dep.state.pa.us/publicparticipation/office%20of%20environmental %20advocacy/envadvocacyportalfiles/2018/0610/draft%20ej%20public%20participation%20policy.pdf [https://perma.cc/44a9-sebe] (“the equal rights amendment (era) can be used as a tool available to the community to address equal justice in low income and minority communities, and may help the most vulnerable communities while improving a sustainable pennsylvania.”). while the quotation mentions the “equal rights amendment” rather than the “environmental rights amendment,” context indicates that padep in fact meant the latter. the constitutional provision commonly referred to as pennsylvania’s equal rights amendment does not relate to either environmental justice or low-income and minority communities more generally, but instead mandates that “[e]quality of rights under the law shall not be denied or abridged in the commonwealth of pennsylvania because of the sex of the individual.” pa. const. art. i, § 28. 222 colum. j. race & l. [vol. 11:195 that the pennsylvania judiciary should understand the duty of impartiality as prohibiting the additional siting of environmental hazards in communities that already bear disproportionate burdens. iv. understanding the duty of impartiality in pennsylvania law since pedf, pennsylvania courts have not defined the exact scope of the duty of impartiality. the robinson township court’s mandate that state actors must “treat all [beneficiaries] equitably in light of the purposes of the trust” does not resolve the issue, as differing conceptions of environmental equity would result in differing state obligations. 152 in light of this uncertainty, future pennsylvania courts should take seriously the pedf court’s statement that “the proper standard of judicial review [for the environmental rights amendment] lies in the text of article i, section 27 itself as well as the underlying principles of pennsylvania trust law in effect at the time of its enactment.”153 since the text of the amendment does not detail the state’s trustee duties, pennsylvania trust law provides the basis for my analysis of the state’s obligations.154 in order to analyze the duty of impartiality in the context of environmental equity, part iv.a first summarizes how different conceptions of equitable treatment correlate with different siting schemes. part iv.b next analyzes how the duty of 152 robinson twp. v. commonwealth, 83 a.3d 901, 959 (pa. 2013). 153 pa. env’t def. found. v. commonwealth, 161 a.3d 911, 930 (pa. 2017). 154 the legislative history associated with the amendment provides little help in determining what conception of environmental equity the amendment embodies. broadly speaking, the legislative history frames the amendment as a response to the depletion and degradation of humanity’s physical environment. see dernbach & sonnenberg, supra note 86, at 188–90. it does not consider the array of distributional concerns broadly encompassed under the term “environmental justice.” the closest that the legislative history gets to addressing matters of environmental inequality can be found in broad statements about maintaining the environment for the benefit of everyone, rather than a select few. in a question and answer accompanying the amendment’s adoption, representative kury, the amendment’s chief legislative sponsor, clarified that the amendment “establishes that the public natural resources of the commonwealth belong to all the people, including future generations, and that the commonwealth is to serve as trustee of our natural resources for future generations.” id. at 270. he further stated that “[t]he resolution would benefit all of the people, and would go a long way toward tempering any individual, company, or governmental body which may have an adverse impact on our natural or historic assets.” id. while these statements may emphasize the amendment’s broad applicability, they do not explain how the government should manage its public trust resources nor clarify whether the amendment could or should serve as a baseline for progressive siting. 2021] environmental rights amendment 223 impartiality functions in pennsylvania trust law and argues that it imposes substantive requirements on trustees to avoid actions that would harm one trust beneficiary for the benefit of another, along with procedural requirements to consider the interests of all beneficiaries in the first place. finally, part iv.c argues that pennsylvania courts, in maintaining fidelity to pennsylvania trust law, should enforce a scheme of substantive environmental equity, in which state actors are prohibited from the continued siting and permitting of environmental hazards in communities that already bear disproportionate environmental burdens. a. differing conceptions of environmental equity as the duty of impartiality requires state actors to “treat all [beneficiaries] equitably in light of the purposes of the trust,” 155 future courts deciding the limits of the duty of impartiality must provide a definition for “equitable” treatment. the definition is not self-evident, as new york university law professor vicki been makes clear in her 1993 article what’s fairness got to do with it? environmental justice and the siting of locally undesirable land uses.156 in her article, professor been “explores what various conceptions of equality would look like if translated into concrete siting programs.”157 the article considers the siting of locally undesirable land uses (lulus) generally, a category which includes environmental hazards such as waste sites alongside other land uses including homeless shelters and low-income housing. her study originates from a recognition that “different theories of fairness should lead to radically different siting programs, so that one cannot adequately evaluate a fair siting proposal without first identifying its underlying conception of fairness.”158 as the duty of impartiality centers on treating all beneficiaries equitably, different understandings of equity or fairness should generate different understandings of the obligation of the state and the courts in upholding the duty. professor been begins her study by outlining seven conceptions of fairness and grouping them into three categories: those that focus on the pattern of distribution of lulus, those that focus on the efficiency of the distribution, and those that 155 robinson twp., 83 a.3d at 959. 156 vicki been, what’s fairness got to do with it? environmental justice and the siting of locally undesirable land uses, 78 cornell l. rev. 1001 (1993). 157 id. at 1006. 158 id. at 1009. 224 colum. j. race & l. [vol. 11:195 focus on the procedure by which the distribution was effected.159 the first category includes conceptions of fairness as requiring equal division between the burdens of lulus, in terms of either pure geographic distribution or compensation for unequal distribution of burdens; as requiring progressive siting of lulus in advantaged neighborhoods; and as requiring an equal initial split of lulus and competitive bidding for and against lulus after the initial split. 160 the second category encompasses a notion of fairness as cost-internalization, in which those that benefit from lulus internalize the costs through physical distribution or compensation schemes. 161 finally, the third category encompasses fairness as requiring the treatment of individuals and communities as equals, leading to siting processes that are equally attentive to the interests of all communities regardless of race or class.162 this final, procedural conception of fairness drives the “impact statement” approach of environmental justice, in which “agencies must consider the concentration of uses in choosing or approving sites.”163 the impact statement approach underlays president clinton’s executive order 12898 (“federal actions to address environmental justice in minority populations and low-income populations”), which focuses on “identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of [agency] programs, policies, and activities on minority populations and low-income populations,” 164 without requiring that environmental justice factors “play a determining factor in siting, rulemaking, and permitting decisions.”165 in contrast, the first category of fairness underpins legislation that requires dispersion and deconcentration of lulus by prohibiting their siting in communities once those communities reach a certain threshold concentration, along with legislation that requires all communities bear a “fair share” of lulus.166 such legislation imposes substantive obligations on 159 id. at 1028. 160 id. at 1028–55. 161 id. at 1055–60. 162 id. at 160–68. 163 id. at 172. 164 exec. order no. 12,898, 59 fed. reg. 7,629, 7,629 (feb. 16, 1994). 165 albert huang, the 20th anniversary of president clinton’s executive order 12898 on environmental justice, nat. res. def. council (feb. 10, 2014), https://www.nrdc.org/experts/albert-huang/20th-anniversary-presidentclintons-executive-order-12898-environmental-justice [https://perma.cc/8qeym6x2]. 166 been, supra note 156, at 1068–72, 1074–76. 2021] environmental rights amendment 225 the state, prohibiting siting and permitting decisions when those decisions have discriminatory effects. of course, in order to fulfill these substantive obligations, the state must first consider the impact of potential decisions on affected groups. in other words, procedural requirements for the identification of disproportionate impacts are necessary preconditions for the implementation of a dispersive or progressive siting scheme. as part iv.b demonstrates, this mixture of substantive and procedural obligations, rather than the merely procedural requirements of the “impact statement” approach, most readily parallels the obligations imposed on trustees by the duty of impartiality in pennsylvania trust law. b. the duty of impartiality in pennsylvania private trust law a survey of how the duty of impartiality functions in pennsylvania trust law reveals that it imposes both substantive and procedural obligations on trustees. in surveying pennsylvania trust law, this section begins by analyzing the five sources cited by the robinson township and pedf courts, which together provide a substantial but non-exhaustive account of the duty of impartiality at the time of the enactment of the environmental rights amendment. the robinson township court provided three citations for the duty of impartiality in pennsylvania trust law: 20 pa. cons. stat. section 7773, restatement (second) of trusts section 232 (impartiality between successive beneficiaries), and the 1980 pennsylvania supreme court opinion from in re hamill’s estate.167 the pedf court additionally cited restatement (second) of trusts section 183 and the 1979 pennsylvania supreme court opinion in estate of sewell.168 of these sources, neither 20 pa. cons. stat. section 7773, which implements in pennsylvania law section 803 of the uniform trust code, nor the restatement (second) of trusts clarifies the extent to which the duty of impartiality imposes substantive obligations on trustees. however, both in re hamill’s estate and estate of sewell indicate that the courts understood the duty as imposing substantive obligations,169 a view which is supported by the more recent restatement (third) of trusts.170 167 robinson twp. v. commonwealth, 83 a.3d 901, 959 (pa. 2013). 168 pa. env’t def. found. v. commonwealth, 161 a.3d 911, 933 (pa. 2017). 169 estate of sewell, 409 a.2d 401, 402 (pa. 1979); in re hamill’s estate, 410 a.2d 770, 773 (pa. 1980). 170 restatement (third) of trusts § 79 cmt. c (am. l. inst. 2007). 226 colum. j. race & l. [vol. 11:195 20 pa. cons. stat. section 7773 reads as follows: if a trust has two or more beneficiaries, the trustee shall act impartially in investing, managing and distributing the trust property, giving due regard to the beneficiaries’ respective interests in light of the purposes of the trust. the duty to act impartially does not mean that the trustee must treat the beneficiaries equally. rather, the trustee must treat the beneficiaries equitably in light of the purposes of the trust.171 under this statute, the trustee must give “due regard” to the beneficiaries’ interests; in other words, the trustee must consider those interests when investing, managing, and distributing the trust property.172 beyond that requirement, the trustee must “act impartially” and “treat the beneficiaries equitably.”173 however, as discussed above, demands for “equitable” treatment do not necessarily correlate with demands for substantive equity and could, in theory, be satisfied by mere consideration of the beneficiaries’ interests. the uniform law comment associated with the statute does not resolve the ambiguity. it states that, “[i]n fulfilling the duty to act impartially, the trustee should be particularly sensitive to allocation of receipts and disbursements between income and principal and should consider, in an appropriate case, a reallocation of income to the principal account and vice versa, if allowable under local law.” 174 while this comment suggests that decisions as to future allocation of trust assets can be based on past inequities, it does not mandate that trustees act in a certain way. restatement (second) of trusts sections 183 and 232 also fail to provide significant clarity. section 183 states in part: “when there are two or more beneficiaries of a trust, the trustee is under a duty to deal impartially with them.”175 section 232 does little more than expand the general rule contained in section 183 to successive beneficiaries, reading: “if a trust is created for beneficiaries in succession, the trustee is under a duty to the successive beneficiaries to act with due regard to their respective interests.” 176 neither of these sections explain what specific actions trustees must take to satisfy their obligations under the 171 20 pa. cons. stat. § 7773 (2020). 172 id. 173 id. 174 20 pa. stat. and cons. stat.§ 7773 uniform law cmt. (west 2020). 175 restatement (second) of trusts § 183 (am. l. inst. 1959). 176 restatement (second) of trusts § 232 (am. l. inst. 1959). 2021] environmental rights amendment 227 duty. however, the editors’ comments to the sections are of more help; in particular, comments under section 232 clearly indicate that the duty imposes substantive obligations on the trustee.177 comment b of section 232 provides the clearest explication of the substantive obligations imposed under the duty of impartiality. it outlines the trustee’s duties to successive beneficiaries, including the duty “not to sacrifice income for the purpose of increasing the value of the principal,” and the “duty to a life beneficiary not to purchase or retain unproductive property.” 178 while these particular substantive obligations specifically apply in the context of subsequent beneficiaries, case law indicates that substantive obligations also apply in the context of simultaneous beneficiaries.179 the private trust law cases that the pennsylvania supreme court cited in robinson township and pedf both indicate that the duty of impartiality imposes substantive obligations on trustees. in in re hamill’s estate, the court cited section 232 comment b to support the rule that a trustee has an obligation to maintain the trust for the benefit of present and future beneficiaries and should not sacrifice the interest of one for the other.180 in estate of sewell, the pennsylvania supreme court found that a trustee violated the duty when the trustee (1) failed to “confirm appellant’s status as a beneficiary” and (2) “continu[ed] to make payments of trust income to” a single beneficiary. 181 the duty here is twofold and encompasses obligations both procedural—the duty to consider the status of 177 restatement (second) of trusts § 232 cmt. b. (am. l. inst. 1959). 178 id. comments under section 183 indicate that a trustee may be empowered to favor one beneficiary over the other if the trust or will at issue clearly indicates an intent for such favoritism. restatement (second) of trusts § 183 cmt. a (am. l. inst. 1959) (“by the terms of the trust the trustee may have discretion to favor one beneficiary over another. the court will not control the exercise of such discretion, except to prevent the trustee from abusing it”). in estate of pew, a private trust case, the pennsylvania superior court analyzed this comment and stated that “[w]hether or not the testator has empowered his trustees here to favor the named income beneficiaries over the charitable remainderman, or vice versa, is a question of intent.” 655 a.2d 521, 542 (pa. super. ct. 1994). the court further clarified that such “intent must be derived from an examination of the entire will, viewed in the light of the circumstances of the testator.” id. 179 see estate of sewell, 409 a.2d 401, 402 (pa. 1979) (holding that a trustee whose status is not open to dispute is entitled to trust income along with other trustees). 180 in re hamill’s estate 410 a.2d 770, 773 (pa. 1980). 181 estate of sewell, 409 a.2d at 402. 228 colum. j. race & l. [vol. 11:195 all beneficiaries—and substantive—allocating payments in an equitable fashion. more recently, in snyder v. commonwealth, the pennsylvania supreme court held: [in the case of] a trust with two life beneficiaries, neither of whom’s needs were to be considered dominant, the trustee was required to carefully consider how his actions toward one beneficiary would affect the other; and he could not justifiably act to benefit one when to do so would irreparably damage the interest of the other.182 in this framing, the question of whether the trustee intended to benefit one beneficiary over the other is not determinative; the key issue is whether the trustee did in fact create disparate effects by benefitting one beneficiary while hurting the other. these cases, two of which were cited in the robinson township and pedf opinions, together indicate that the duty of impartiality is both procedural and substantive. the restatement (third) of trusts section 79 (duty of impartiality; income productivity) has upheld that understanding of the duty. a comment under section 79 identifies “‘substantive’ aspects of impartiality.” 183 these substantive aspects require trustees to “avoid injecting their personal favoritism into their decision[-]making and conduct in trust administration and . . . make diligent and good-faith efforts to identify, respect, and balance the various beneficial interests when carrying out the trustees’ fiduciary responsibilities in managing, protecting, and distributing the trust estate, and in other administrative functions.”184 this comment clarifies that the trustee must both “identify” and “balance” the beneficiaries’ interests: obligations that are procedural and substantive. 185 furthermore, in requiring trustees to balance the beneficiaries’ interests, the restatement imposes a duty to avoid inequitable trust allocation even when that allocation does not derive from an intentional decision to favor one beneficiary at the expense of another. 182 snyder v. commonwealth, 598 a.2d 1283, 1287 (pa. 1991). other pennsylvania cases touch on the duty of impartiality without adding substantive analysis. see, e.g., in re neafie’s estate, 191 a. 56 (pa. 1937); in re tr. under agreement of kaiser, 572 a.2d 734 (pa. 1990); in re weiss’s estate, 309 a.2d 793 (pa. 1973); in re longbotham’s estate, 29 a.2d 481 (pa. 1943). 183 restatement (third) of trusts § 79 cmt. c (am. l. inst.. 2007). 184 id. 185 id. 2021] environmental rights amendment 229 this study of pennsylvania trust law reveals that the duty of impartiality imposes both procedural and substantive requirements on the state. following the robinson township and pedf courts’ usage of pennsylvania private trust law as the basis for its understanding of the state’s public trust duties,186 pennsylvania courts should require the state to not only consider whether siting and permitting decisions would have a disparate impact on certain communities, but also to actually avoid those impacts. as such, the duty of impartiality should allow litigants a cause of action against the sort of disparate impact environmental discrimination litigated under the civil rights act prior to sandoval. c. shaping an environmental justice claim under the duty of impartiality causes of action under the duty of impartiality could take several forms. following in the footsteps of the robinson township and pedf petitioners, litigants may file a complaint for declaratory judgment pursuant to pennsylvania’s declaratory judgments act, seeking the commonwealth court to declare pennsylvania’s current permitting scheme unconstitutional. litigants could alternatively appeal the issuance of specific permits that disproportionately impact overburdened communities. litigants may also have claims against municipalities or local land use boards that have used their zoning powers to concentrate environmental hazards in communities of color, although such a claim follows less directly from robinson township’s discussion of disparate impacts arising from the permitting process. 1. claims under the declaratory judgments act pennsylvania’s declaratory judgments act provides that “[c]ourts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations,” and that such “declaration[s] may be either affirmative or negative in form and effect . . . [and] shall have the force and effect of a final judgement or decree.”187 the robinson township petitioners challenged act 13 under the declaratory judgments act, 188 and the pedf petitioners used this act to seek the commonwealth court’s declaration as to whether pennsylvania’s 186 robinson twp. v. commonwealth, 83 a.3d 901, 954–59 (pa. 2013); pa. env’t def. found. v. commonwealth, 161 a.3d 911, 930 (pa. 2017). 187 42 pa. cons. stat. § 7532 (2020). 188 robinson twp., 83 a.3d at 990. 230 colum. j. race & l. [vol. 11:195 fiscal code and the general assembly’s fiscal appropriations violated the environmental rights amendment.189 litigants could likewise use the declaratory judgments act to seek the court’s declaration as to whether the commonwealth’s environmental permitting legislation and padep’s implementing regulations violate the environmental rights amendment by failing to include a mechanism for preventing the continued siting of environmental hazards in overburdened communities. of course, the regulatory scheme governing the permitting of environmental hazards differs depending on the facility being permitted—for example, waste facilities as opposed to hydraulic fracturing wells—and litigants would have to separately challenge the permitting of different sorts of environmental hazards. given the robinson township and pedf petitioners’ success in using the declaratory judgments act to challenge state action under the environmental rights amendment, this procedure stands out as the most feasible method to challenge pennsylvania’s siting scheme. in a successful declaratory judgments act petition, the court’s order would declare the applicable statutes or regulations unconstitutional, and the general assembly and/or padep would then be tasked with remedying that unconstitutionality. in doing so, the federal environmental equal rights act of 1993 could provide one model for how to incorporate distributive criteria into permitting decisions to remedy any constitutional violation. the environmental equal rights act was an unsuccessful attempt to amend the solid waste disposal act to incorporate racial criteria into evaluations of siting approvals.190 under the act, affected citizens could have challenged the siting of a waste facility if the proposed location was within two miles of another waste facility, superfund site, or facility that releases toxic contaminants; the proposed location was within a community with a higher than average percentage of low-income people or people of color; and the proposed facility would have adversely affected the human health, air, soil, or other environmental asset of the community or a portion of the community.191 the challenge would fail if the defendant could prove that no alternative location existed within the state that posed fewer risks to human health and the environment and that the proposed facility would not release contaminants or was 189 pa. env’t def. found., 161 a.3d at 925. 190 h.r. 1924, 103d cong. (1993). 191 id. 2021] environmental rights amendment 231 unlikely to increase the cumulative impact of contaminants on any residents of the community.192 while these exact protocols are merely one example of standards by which to incorporate environmental equity concerns into permitting decisions, they could serve as a template for legislation and regulation seeking to incorporate the duty of impartiality. 2. padep permit appeals in addition to challenging the statutory and regulatory schemes for the permitting of environmental hazards under the declaratory judgments act, affected citizens and community groups can also directly challenge the issuance of environmental permits for facilities to be operated in disproportionately burdened communities. the specific mechanisms for such a challenge would vary based on the type of facility being permitted. for example, 25 pa. code section 271.201 provides permit criteria for the approval of municipal waste facilities. that regulation mandates that a “permit application will not be approved unless the applicant affirmatively demonstrates that . . . [t]he requirements of pa. const. art. 1, § 27 have been complied with.”193 community groups could use this regulation to sue padep for violating the duty of impartiality by issuing a municipal waste permit in a community that already bears a disproportionate burden. the municipal waste planning, recycling and waste reduction act requires padep to “[a]dminister the municipal waste planning, recycling and waste reduction program pursuant to the provisions of this act and the regulations promulgated pursuant thereto,”194 and provides that “any aggrieved person may commence a civil action on his own behalf against any person who is alleged to be in violation of this act.” 195 the environmental hearing board has original jurisdiction over citizen suit actions brought against padep under the aforementioned provision,196 and the commonwealth court in turn has exclusive appellate jurisdiction over any environmental hearing board final order. 197 litigants could accordingly use 25 pa. code section 271.201 to challenge padep’s failure to comply with the duty of impartiality by permitting a waste facility in an already disproportionately burdened community. 192 id. 193 25 pa. code § 271.201. 194 53 pa. cons. stat. § 4000.301(a) (2020). 195 53 pa. cons. stat. § 4000.1711(a) (2020). 196 53 pa. cons. stat. § 4000.1711(b) (2020). 197 42 pa. cons. stat. § 763(a)(2) (2020). 232 colum. j. race & l. [vol. 11:195 since “the public trust provisions of section 27 are selfexecuting,”198 affected individuals could challenge facilities even if the governing regulations for permitting of those facilities do not explicitly incorporate the environmental rights amendment. pennsylvania administrative law provides that “[a]ny person aggrieved by an adjudication of a commonwealth agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals.”199 parties can use such an appeal to “question[] the validity of the statute” which governed the agency action.200 as a result, permit appeals could be a forum for challenging permitting schemes that fail to adequately fulfill the commonwealth’s duty of impartiality by attenuating the disparate impacts of permitting decisions. 3. challenges to municipalities or local agencies while the most obvious defendant for a duty of impartiality claim would be padep or the commonwealth as a whole, suits could also proceed against local governments and land use agencies that concentrate environmental hazards in overburdened communities via zoning or other land use decisions. the robinson township court implied that municipalities are bound by the same trust obligations as the state, noting in dicta that “[t]he aggrievement alleged by the political subdivisions is not limited to vindication of individual citizens’ rights but extends to allegations that the challenged statute interferes with the subdivisions’ constitutional duties respecting the environment and, therefore, its interests and functions as a governing entity.”201 in asserting that subdivisions have constitutional duties to respect the environment, the court opened the door for litigation directly challenging municipalities’ abuse of discretion in exercising those duties. 202 198 pa. env’t def. found. v. commonwealth, 161 a.3d 911, 937 (pa. 2017). 199 2 pa. cons. stat. § 702 (2020). a party’s interest must also be substantial. see mec pa. racing v. pa. state horse racing comm’n, 827 a.2d 580, 588 (pa. commw. ct. 2003), as amended (july 15, 2003). a “direct” interest arises when the adjudication causes harm to the appellant’s interest, and a “substantial” interest arises when there is a discernible adverse effect to an interest other than the abstract interest of all citizens in having others comply with the law. see id. (citing pa. auto. ass’n v. state bd. of vehicle mfr., dealers & salespersons, 550 a.2d 1041, 1043 (pa. commw. ct. 1988); william penn parking garage inc. v. city of pittsburgh, 346 a.2d 269 (pa. 1975)). 200 2 pa. cons. stat. § 703 (2020). 201 robinson twp. v. commonwealth, 83 a.3d 901, 920 (pa. 2013). 202 dernbach et al., examination and implications, supra note 103, at 1185. 2021] environmental rights amendment 233 more recently, the pennsylvania commonwealth court addressed the extent to which the environmental rights amendment binds local governments.203 the court noted that, “[w]hen a municipality enacts a zoning ordinance, it is bound by the environmental rights amendment and by all the rights protected in article i of the pennsylvania constitution.” 204 however, the court also found that robinson township “did not give municipalities the power to act beyond the bounds of their enabling legislation,” meaning that “[m]unicipalities lack the power to replicate the environmental oversight that the general assembly has conferred upon dep and other state agencies.”205 finally, the court noted that, in the context of oil and gas development, “a municipality may use its zoning powers only to regulate where mineral extraction takes place . . . [and] does not regulate how the gas drilling will be done.”206 while this decision limited municipalities’ environmental obligations, it did not rule out potential actions against them for violating the duty of impartiality since environmental justice in this context is precisely a matter of where the permitted activity takes place. accordingly, causes of action can arise at the level of local land use decision-making, rather than being confined to permitting decisions by padep and other state-wide actors. litigants could use the declaratory judgments act to seek a declaration that the actions of municipalities or local land use agencies violated the duty of impartiality. alternatively, they could appeal the decision of a local land use agency pursuant to 2 pa. cons. stat. section 752, which provides that “[a]ny person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals.” 207 these local actions would allow individuals the opportunity to challenge the zoning decisions that underlay the inequitable permitting of environmental hazards,208 rather than only challenging the permitting schemes themselves. 203 frederick v. allegheny twp. zoning hearing bd., 196 a.3d 677, 695 (pa. commw. ct. 2018), appeal denied, 208 a.3d 462 (pa. 2019). 204 id. 205 id. at 697. 206 id. 207 2 pa. cons. stat. § 752 (2020). 208 see supra notes 43–50 and accompanying text. 234 colum. j. race & l. [vol. 11:195 v. the possibility for environmental justice litigation under the duty of impartiality in other states the pedf court found pennsylvania’s obligations under the environmental rights amendment to be relatively unique, claiming that “pennsylvania deliberately chose a course different from virtually all of its sister states,” and arguing that this was a reflection of “the commonwealth’s experience of having the benefit of vast natural resources whose virtually unrestrained exploitation, while initially a boon to investors, industry, and citizens, led to destructive and lasting consequences not only for the environment but also for the citizens’ quality of life.” 209 despite these claims, pennsylvania is not wholly unique in incorporating the public trust doctrine into its constitution. this section accordingly analyzes other states’ constitutions to identify where jurisprudential developments similar to those associated with robinson township may be possible. this survey merely identifies which states are the likeliest candidates for such developments and should not be understood to categorically rule out the possibility of similar developments elsewhere. of course, the most direct way for the duty to be incorporated in other states or federally is through direct adoption of new constitutional amendments that codify the government’s duty. as a result of robinson township and the revamped environmental rights amendment jurisprudence, a “green amendment movement” has advocated for “constitutional-level protections for the inalienable right for a healthy environment in every constitution, in every state across the nation, and eventually at the federal level.” 210 robinson township co-plaintiff and delaware riverkeeper maya van rossum has specifically advocated for the nation-wide adoption of constitutional amendments that would impose duties of impartiality on state actors under the theory that such amendments would serve environmental justice goals by preventing said actors from “target[ing] or sacrific[ing] a single community with repeated environmental harm in order to better protect the environment, health, goals, and rights of another 209 pa. env’t def. found. v. commonwealth, 161 a.3d 911, 918–19 (pa. 2017). 210 natasha geiling, the radical movement to make environmental protections a constitutional right, thinkprogress (dec. 22, 2017, 1:18 pm), https://archive.thinkprogress.org/green-amendment-movement-45a19f7c1ce7/ [https://perma.cc/6j8h-aeaf]. 2021] environmental rights amendment 235 community.” 211 at the federal level, the adoption of an environmental amendment that directly imposes responsibilities on the federal government has long been a focus of advocates,212 but the ratification of such an amendment does not seem likely in the near future. since the possibility of passing state or federal amendments largely comes down to political will, and the federal judiciary has casted doubt on the existence of a federal public trust doctrine,213 this note instead analyzes which states already have the constitutional framework for the judicial application of fiduciary duties including the duty of impartiality. because the duty arises as a public trust obligation, it could serve to invigorate environmental justice advocacy in states with expansive constitutional public trust doctrines, particularly in those states that foreground the duty of impartiality in their private trust law. if a state has both, then it is a good candidate for the imposition of the duty in the public trust context. while the constitutions of forty-two states mention the environment or natural resource conservation, 214 only three states—virginia,215 pennsylvania,216 and hawaii217—explicitly use public trust language in their environmental provisions. and while virginia’s constitution establishes that the commonwealth has a policy “to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the commonwealth,” the only resources explicitly held in trust are “[t]he natural oyster beds, rocks, and shoals in the waters of the commonwealth.”218 in contrast to the limited public trust assets defined in virginia’s constitution, hawaii provides a broad framework for a 211 maya k. van rossum, letter in support of maryland house bill 472, green amends. for generations (feb. 20, 2019), https://forthegenerations.org/wp-content/uploads/2019/02/sd-md-20190220mkvr-testimony-and-attachments.pdf [https://perma.cc/wnl5-ys8u]. 212 see lynton k. caldwell, the case for an amendment to the constitution of the united states for protection of the environment: affirming responsibilities rather than declaring rights may be the most promising route to the objective, 1 duke env’t l. & pol’y f. 1 (1991). 213 see alec l. ex rel. loorz v. mccarthy, 561 f. app'x 7, 8 (d.c. cir. 2014) (citing ppl mont., llc v. montana, 565 u.s. 576, 603 (2012)). 214 klee, supra note 8, at 167. 215 va. const. art. xi, § 3. 216 pa. const. art. i, § 27. 217 haw. const. art. xi, § 1. 218 va. const. art. xi, § 3. 236 colum. j. race & l. [vol. 11:195 constitutional public trust that could incorporate the duty of impartiality as a limit on environmental decision-making.219 like pennsylvania, hawaii’s constitution explicitly incorporates the language of environmental rights220 and the public trust. its public trust provision reads: for the benefit of present and future generations, the state and its political subdivisions shall conserve and protect hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the state. all public natural resources are held in trust by the state for the benefit of the people.221 by its terms, this provision should establish the same sort of public trust obligation as pennsylvania’s environmental rights amendment. furthermore, hawaii’s constitutional provisions regarding the environment, like pennsylvania’s environmental rights amendment, are self-executing. 222 as of now, the hawaiian courts have limited the “public natural resources” governed by encompassed by article 11, section 1 to “natural resources which are or have been in the possession of the state.”223 this differs from the robinson township court’s claim that the state holds in trust all natural resources that implicate the public interest. 224 even still, the public trust assets encompassed by this provision are far broader than those encompassed by the common law public trust doctrine in most states. 225 219 haw. const. art. xi, § 1. 220 article 11, section 9 of hawaii’s constitution, which establishes environmental rights, reads as follows: “each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.” haw. const. art. xi, § 9. 221 haw. const. art. xi, § 1. 222 kent d. morihara, hawai’i constitution, article xi, section 1: the conservation, protection, and use of natural resources, 19 u. haw. l. rev. 177, 214 (1997). 223 id. at 198. 224 robinson twp. v. commonwealth, 83 a.3d 901, 955 (pa. 2013). 225 see alexandra b. klass, the public trust doctrine in the shadow of state environmental rights laws: a case study, 45 env’t l. 431, 439 (2015) 2021] environmental rights amendment 237 hawaii trust law cites the restatement (third) of trusts section 79 when discussing the duty of impartiality. 226 as discussed above, section 79 imposes substantive obligations on trustees. 227 as such, hawaii is likely the state where the judiciary could most readily establish that fiduciary duties including the duty of impartiality apply in the public trust context, thereby creating a constitutional mandate for equity in environmental decision-making. of course, similar developments may prove possible elsewhere. yet, pending constitutional amendment, more barriers currently exist to applying the duty of impartiality in the public trust context in other states. for one, certain state constitutions such as montana’s impose trust-like obligations on the state and even private parties without explicitly stating that the state holds environmental resources in “trust.” 228 as the robinson township and pedf courts’ use of the duty of impartiality arose from an analogy to private trust law, the absence of trust language in constitutions such as montana’s will likely stand in the way of similar jurisprudential developments. furthermore, for states in which the public trust doctrine remains a matter of common law, public trust assets are generally limited to navigable waters and submerged lands and do not encompass other natural resources, such as the air, which are most frequently impacted by permitting decisions.229 while some states including new york and new jersey have somewhat expanded the scope of public trust assets through the common law,230 they have failed to approach the scope of public trust (“this writing illustrates how litigants have now used the public trust doctrine for over four decades in efforts to protect traditional water-based resources as well as, in some states, public lands, parks, shoreland and beaches, the atmosphere, animals, and plant species. however, it is important to keep in mind that in the majority of states, the public trust doctrine remains limited to navigable waters and submerged lands and has not been extended beyond access to and use of those resources.”). 226 awakuni v. awana, 165 p.3d 1027, 1036 (haw. 2007). 227 restatement (third) of trusts § 79 cmt. c (am. l. inst. 2007). 228 see mont. const. art. ix, § 1 (“the state and each person shall maintain and improve a clean and healthful environment in montana for present and future generations.”). 229 see klass, supra note 225, at 439. 230see alexandra b. klass, modern public trust principles: recognizing rights and integrating standards, 82 notre dame l. rev. 699, 707–08 (2006) (“in certain states, courts have expanded the doctrine from its historic domain of ensuring public access to navigable waters to protecting use, access to, and preservation of all waters usable for recreational purposes, the dry sand area of beaches for public recreation purposes, parklands, wildlife and wildlife habitat connected to navigable waters, drinking water resources, and inland wetlands. courts have also used the doctrine to resolve water appropriation issues and 238 colum. j. race & l. [vol. 11:195 assets contained in pennsylvania’s and hawaii’s constitutions. as a result, the framework does not currently exist in those states for the sort of jurisprudential developments exemplified by robinson township and pedf. advocates in those states should therefore continue to push for a constitutional amendment that incorporates the public trust doctrine and requires state actors to manage environmental resources in a sustainable and equitable fashion. vi. conclusion while largely untested, pennsylvania’s environmental rights amendment’s imposition of the duty of impartiality on state actors should provide a significant tool for litigation targeting environmental racism and discrimination. in light of the recent robinson township and pedf decisions, pennsylvania agencies must consider the cumulative impact of previous environmental decision-making when making siting and permitting decisions and cease siting and permitting environmental hazards in communities that already bear a disproportionate burden. furthermore, as the public trust doctrine and environmental constitutionalism continue to evolve in other states, the duty could help ensure that states are protecting all residents’ environments equally. of course, that result is far from guaranteed, but given the many roadblocks facing federal environmental justice litigation, such a stateoriented approach is one worth pursuing. have held that even preexisting water rights may be curtailed if necessary to prevent reduction of water in inland streams or lakes that provide aesthetic values or habitats for animal and plant species or other natural resources.”). columbia journal of race and law vol. 12 july 2022 no. 1 divest, invest, & mutual aid caitlyn garcia & cynthia godsoe† “[we must develop a] freedom constitutionalism . . . seek[ing] to abolish historical forms of oppression beyond slavery . . . , [and] to dismantle systems beyond police and prisons, including foster care, regulation of pregnancy, and poverty.” – dorothy roberts1 “we keep each other safe: mutual aid for survival and solidarity.” – dean spade, mariame kaba, & ejeris dixon2 i. family policing is harmful, racist, and punishes poverty .............602 a. family policing is harmful to children and their families .....604 b. family policing is racist ...........................................................605 c. family policing punishes poverty .............................................606 d. child safety requires material investment in marginalized families ...............................................................607 ii. mutual aid provides a model that has been historically empowering and helpful to marginalized communities .................609 a. what is mutual aid? ..................................................................609 b. historical use of mutual aid by marginalized communities ...611 c. recent resurgence of mutual aid efforts .................................614 iii. divest from family policing and invest in community-led mutual aid ........................................................................................615 a. divest .........................................................................................616 b. avoid reformist reforms of prevention & differential response ....................................................................................617 1. prevention ..........................................................................618 2. differential response .........................................................618 3. the fundamental shortcomings of reformist reforms ....622 c. invest in community-led mutual aid ......................................623 d. the challenges of the mutual aid model ..................................626 iv. conclusion .........................................................................................628  staff attorney, brooklyn defender services, family defense practice † professor of law, brooklyn law school. thank you to the symposium organizers, nancy polikoff and jane spinak, for the opportunity to contribute and participate, as well as to our co-panelists and moderator, kele stewart, bianca shaw, halimah washington, imani worthy, and tricia stephens. we are also grateful to vivek sankaran and michael wald for helpful comments, danika gallup for excellent research assistance, and the editors for thoughtful edits. 1 dorothy e. roberts, abolition constitutionalism, 133 harv. l. rev. 1, 120 (2019). 2 dean spade, mariame kaba, & ejeris dixon, we keep each other safe: mutual aid for survival and solidarity, barnard ctr. for rsch. on women (nov. 12, 2020), https://bcrw.barnard.edu/event/we-keep-each-other-safe/ [https://perma.cc/r6r5-nnuw]. 602 colum. j. race & l. [vol. 12:601 we are honored to be part of this symposium issue envisioning the transformation of family support and honoring the work of dorothy roberts. the symposium is both essential and timely. it is essential because abolition of the family policing system is needed, and needed now; it is timely because the inequality exposed by the pandemic and the overdue reckoning with state violence, particularly against people of color, have mobilized communities bringing new energy and hope.3 we look to mutual aid as a solution to the harms wrought by the family policing system.4 the vast majority of parents enter the system because of the government’s failure to support them, particularly through its divestment from and punishment of families in low-income communities of color.5 what families need is concrete material aid—housing, food, childcare—rather than state surveillance and punishment. as the abolitionist group critical resistance puts it: “the best way to reduce harm is by building safe, healthy communities where people have their basic needs met.”6 moreover, listening and giving agency to these families constitute an essential component of true transformation of the way our society protects all children and supports all families. mutual aid is both a practice and a theory. it consists of “people get[ting] together to meet each other’s basic survival needs with a shared understanding that the systems we live under are not going to meet our needs and we can do it together . . . .”7 mutual aid couples material resources with empowerment and community-building of those impacted by the system, in order to secure real harm reduction for children and families and transformative change across communities.8 at the same time that we propose a community-based and empowering mutual aid model, we also advocate for divestment from punitive state interaction and for investment in supports for children and families, funding of communities, and grassroots interventions, all undergirded by a social safety net. this essay proceeds in three parts. we begin by critiquing the family policing system as one that consolidates white supremacy, punishes 3 as stated by dorothy roberts, “[p]olicing captures what this system does. it polices families with the threat of taking children away. even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. it is a form of punishment, harm and oppression.” ‘abolition is the only answer’: a conversation with dorothy roberts, rise (oct. 20, 2020), https://www.risemagazine.org/2020/10/conversationwith-dorothy-roberts/ [https://perma.cc/v3ly-betb]. 4 see generally what is mutual aid?, big door brigade, https://bigdoorbrigade. com/what-is-mutual-aid/ [perma.cc/r6r5-nnuw] [hereinafter what is mutual aid?] (defining mutual aid). 5 for a seminal discussion of the racist socioeconomic context underlying families’ involvement in the so-called “child welfare” system, see generally dorothy roberts, shattered bonds: the color of child welfare (2002) [hereinafter roberts, shattered bonds]; see also cynthia godsoe, an abolitionist horizon for child welfare, l. & pol. econ. blog (aug. 6, 2020) [hereinafter godsoe, abolitionist horizon for child welfare], https://lpeproject.org/blog/an-abolitionist-horizon-for-child-welfare/ [https://perma. cc/42qw-bwjd] (laying the groundwork for a longer work-in progress situating the child welfare system in the punitive carceral state). 6 critical resistance, what is abolition? (june 2012), http://criticalresistance. org/wp-content/uploads/2012/06/what-is-abolition.pdf [https://perma.cc/bc2l-rf58]. 7 what is mutual aid?, supra note 4. 8 see discussion infra section iii. 2022] divest, invest, & mutual aid 603 poverty, and brings significant fiscal and human costs, including family separation, with no benefit. in part ii, we describe mutual aid, and its long history of use by marginalized communities to help each other and fight back against the oppressive state. mapping the recent resurgence of mutual aid efforts, we flag parent organizing as an essential force to abolish the family policing system. part iii elaborates on our argument to divest from the current punitive system and invest in a mutual aid model. an abolitionist horizon guides our thinking, both as “a practical organizing tool and a long-term goal.”9 we warn against the pitfalls of “reformist reforms”10 that grow and entrench the system, and conclude that only financial investment in, and power-shifting to, communities can truly keep all children and families safe and healthy. i. family policing is harmful, racist, and punishes poverty like the criminal legal system, the family policing system is a state apparatus of racialized social control, ineffective at preventing or redressing harm on its own terms, while imposing very high fiscal and human costs.11 players within the system—mandated reporters, police officers, “child protective specialists,” and judges—perpetuate an intergenerational cycle that punishes and separates low-income and marginalized families. the current system and america’s family courts are not trauma-informed but rather trauma-inducing and continually retraumatizing for impacted families each and every day. every year, millions of families are investigated by state actors, surveilled through court-ordered supervision, and required to participate in intrusive services such as parenting classes, drug-testing, and therapy, all on tenuous allegations of harm or risk of harm to their children.12 armed 9 what is the pic? what is abolition? critical resistance, http://criticalresistance.org/about/not-so-common-language/ [https://perma.cc/3bbqwqwu] (“an abolitionist vision means that we must build models today that can represent how we want to live in the future. it means developing practical strategies for taking small steps that move us toward making our dreams real and that lead us all to believe that things really could be different. it means living this vision in our daily lives.”). 10 ruth wilson gilmore, golden gulag: prisons, surplus, & opposition in globalizing california 242 (2007). we discuss reformist reforms further infra section iii.b.3. 11 see roberts, shattered bonds, supra note 5, at 274–76 (summarizing criticism of the coercive state enforcement of the child welfare system’s “punitive function”); see also elisa minoff, entangled roots: the role of race in policies that separate families 4 (2018), https://cssp.org/wp-content/uploads/2018/11/cssp-entangled-roots.pdf [https://perma.cc/g44r-6t7w] (connecting the family separation in the immigration, criminal, and family regulation systems, and arguing that “racism has always played a central role in the publicly funded systems that separate families”). 12 see michael s. wald, beyond cps: building a system to protect the safety and basic development of children experiencing problematic parenting, in handbook of child maltreatment 2 (forthcoming 2022) (“[s]tudies estimate that over one-third (37.4%) of all children have been investigated by cps at least once by age 18[.]”). only a small percentage of these cases are for sexual (4%) or physical abuse (13%); the vast majority of children are taken from their homes and put in foster care for allegations of parental neglect, “caretaker inability to cope,” housing, “child behavioral issue,” or similarly ill-defined and poverty-based allegations. admin. for child. & families, u.s. dep’t of health & hum. servs., afcars report no. 27, preliminary fy 2019 estimates 2 (2020) [hereinafter afcars report] (reporting on data from the adoption and foster care analysis and reporting system, which compiles case information from state and tribal child welfare agencies). 604 colum. j. race & l. [vol. 12:601 police play a role in this, interrogating children at school and accompanying case workers to remove children from their homes, sometimes arresting parents in front of their children.13 faced with the state’s loosened standards of proof, insufficient provisions of due process, and use of children as bargaining chips, parents deemed neglectful or abusive hardly have any legal protections against the threat of dire employment consequences and tremendous societal stigma.14 a. family policing is harmful to children and their families over 430,000 children annually (a number that has risen for the last five years) are forcibly separated from their parents, and often their siblings, and put in foster care.15 this practice persists despite the fact that government agencies themselves have documented high rates of sexual and physical abuse in care and recognized effects of trauma to separated children.16 experts estimate that 1 in 7 children (14%) will be subjects of two or more child protective reports by age twelve, and approximately 6% of all children in the united states (10% of african american children and 15% of native american children) are removed from their homes at least once before age eighteen.17 annually, thousands of parents have their rights and all ties to their children permanently terminated.18 tens of thousands of these children are never adopted and never enter into any kind of permanent relationship with another adult, bouncing among many foster homes and institutions, and entering adulthood as “legal orphans” 13 the connection between law enforcement and family regulation workers is also demonstrated by the law enforcement training many workers receive. see, e.g., thomas tracy, administration of children’s services staffers now being sent to nypd investigator course, n.y. daily news (sept. 24, 2017), https://web.archive.org/web/20200808001909/ https://www.nydailynews.com/new-york/acs-staffers-nypd-investigator-article-1.3518025. 14 see godsoe, abolitionist horizon for child welfare, supra note 5 (outlining the “lack of process [that] make[s] findings of neglect or abuse almost a foregone conclusion” throughout the investigation and adjudication of mistreatment reports). 15 afcars report, supra note 12, at 1; admin. for child. & families, u.s. dep’t of health & hum. servs., trends in foster care and adoption: fy 2009–fy 2018, http://centerforchildwelfare.fmhi.usf.edu/kb/natres/trends_fostercare_adoption_09thru18.p df [https://perma.cc/7lfh-dlss]. 16 see admin. for child. & families, u.s. dep’t of health & hum. servs., child welfare outcomes 2018: report to congress 16, 19–24 (2018) (reporting performance outcomes for reduction of “incidence of child abuse and/or neglect in foster care,” including incidence of maltreatment by foster parents or facility staff, and noting its association with increase in trauma symptoms); see also richard wexler, abuse in foster care: research vs. the child welfare system’s alternative facts, youth today (sept. 20, 2017), https://youthtoday.org/2017/09/abuse-in-foster-care-research-vs-the-child-welfare-systemsalternative-facts/ [https://perma.cc/w48q-xlx5] (examining examples of child abuse by “parents” in foster and adoptive settings); nat’l coal. for child prot. reform, foster care vs. family preservation: the track record on safety and well-being (2019) (gathering research comparing child abuse rates in foster care and in the general population); laura gypen et al., outcomes of children who grew up in foster care: systematic-review, 76 child. & youth servs. rev. 74, 77–80 (2017) (reviewing over thirty studies and finding that children in foster care have lower rates of high school and college completion, lower employment rates and earnings, and higher rates of substance abuse, mental health issues, and involvement in the criminal system, than the rest of the population). 17 see wald, supra note 12, at 2 (regarding reports or investigations conducted by child protective specialists). 18 in 2019, the most recent year for which we have data, 71,335 parents had their rights permanently terminated. afcars report, supra note 12, at 1. 2022] divest, invest, & mutual aid 605 with a catastrophically high likelihood of experiencing homelessness, imprisonment, and mental health trauma.19 b. family policing is racist the family policing system is also racist. the numbers are stark; “[b]lack children are twice as likely as white children to wind up in foster care and face its devastating effects.”20 this system is harmful, not helpful, as reflected in its long history of racialized social control—a history stemming back to the orphan trains carrying young immigrants;21 the forcible removal of native american children;22 and the immigration policies separating asian-american families in the nineteenth and early twentieth centuries.23 this historical pathway continues today, as evidenced by the child welfare “savior” mentality;24 the criminalization of health needs that is enforced through mandated reporting and the drug testing of black mothers and their newborns;25 the unacknowledged 19 godsoe, abolitionist horizon for child welfare, supra note 5 (reporting 71,000 legal orphans in 2018 alone). 20 sherry lachman, opinion, the opioid plague’s youngest victims: children in foster care, n. y. times (dec. 28, 2017), https://www.nytimes.com/2017/12/28/opinion/ opioid-crisis-children-foster-care.html [https://perma.cc/e8eg-hggg]; see also kathleen b. simon, note, catalyzing the separation of black families: a critique of foster care placements without prior judicial review, 51 colum. j. l. & soc. probs. 347, 350 (2018) (recommending more stringent emergency removal laws to reduce the number of black children in foster care). 21 see generally stephen o’connor, orphan trains (2004) (presenting a history and legacy of supposedly welfare-enhancing orphan trains of the mid-to late nineteenth century, which transported children from urban parts of the nation and placed them in rural parts, mostly for labor). on the dynamics between immigration, class, and “juvenile criminal[ity]” in urban areas during the time leading up to the operation of orphan trains, see id. at 115–16. 22 christie renick, the nation’s first family separation policy, imprint (oct. 9, 2018), https://imprintnews.org/child-welfare-2/nations-first-family-separation-policy-indianchild-welfare-act/32431 [https://perma.cc/g4uc-35fx]; see also anya zoledziowski, the residential school system didn’t end—it just became foster care, vice (june 9, 2021), https://www.vice.com/en/article/7kvkb9/the-residential-school-system-didnt-endit-justbecame-foster-care [https://perma.cc/5wgx-hfq6] (describing the same history in canada). 23 minoff, supra note 11, at 7. 24 child welfare or protection workers have seen themselves as “saviors” since their first incarnation during the progressive era. see, e.g., anthony m. platt, the child savers: the invention of delinquency 139 (40th ed. 2009); see also michael willrich, city of courts: socializing justice in progressive era chicago, at xxviii (2003) (asserting that juvenile court “aimed not merely to punish offenders but to assist and discipline entire urban populations”). the current “child-welfare industrial complex doubles down on the idea that it is ‘saving’ children.” chris gottlieb, black families are outraged about family separation within the u.s. it’s time to listen to them, time (mar. 17, 2021), /https://time.com/5946929/child-welfare-black-families/ [https://perma.cc/umc4-hhn5] (further explaining the “racist imagery” and implicit bias that inform the “savior” mentality). 25 on january 14, 2021, the shriver center on poverty law highlighted the concerns of criminalizing health needs and punishing mental illness, as the system used black bodies for medical testing, drug tested newborns and new mothers to then remove babies, and created a healthcare professional’s purpose to work with the judiciary (specially referring to child abuse pediatricians). webinar: your family or its health: intersections between the healthcare and foster systems, shriver ctr. on poverty law (jan. 14, 2021), https://www.povertylaw.org/article/webinar-your-family-or-its-health/ [https://perma.cc/fu v9-4qz3]. 606 colum. j. race & l. [vol. 12:601 trauma of family separation;26 and the fact that the outcomes for most children placed in foster care are terrible on every axis.27 c. family policing punishes poverty the family policing system maintains america’s caste system, a system that “holds everyone in a fixed place.”28 it maintains the status quo by holding parents of color and low-income parents within the lowest ranks of society’s hierarchies. to paraphrase paul butler’s point on policing and punishment, when harms are inflicted on the lowest ranks, the system is working like it is supposed to.29 put another way, the harms are a feature, not a bug. despite the rhetoric of “parental abuse” in the system, the vast majority of children are removed from their parents for allegations of “neglect.”30 this is a vague legal category that centers on a parent’s “failure” to provide food, medical care, housing, and child care. or, it could mean that the parent failed to get proper (i.e. private-pay) treatment for mental health or substance abuse. the relationship between neglect and poverty is in the very statutory language. a typical state statute, like oklahoma’s, defines neglect as “the failure . . . to provide . . . adequate nurturance and affection, food, clothing, shelter, sanitation, hygiene, or 26 analogous to the separation of families at the border, “highly stressful experiences, like family separation, can cause irreparable harm, disrupting a child’s brain architecture and affecting his or her shortand long-term health. this type of prolonged exposure to serious stress—known as toxic stress—can carry lifelong consequences for children.” colleen kraft, am. acad. of pediatrics, aap statement opposing separation of children from parents at the border (may 8, 2018), https://docs.house.gov/meetings/ if/if14/20180719/108572/hhrg-115-if14-20180719-sd004.pdf [https://perma.cc/p9h3wlcz]. this trauma is particularly unacknowledged for marginalized families, such as native american families. see this land, the heart of it, crooked media (2021), https://crooked.com/podcast/this-land-season-2-coming-august-23rd/ (podcast season 2, episode 8) (conversing about the trauma from the removal of native children from reservations, in the context of federal litigation on the adoption industry’s harm to tribal sovereignty). 27 the evidence is in: foster care vs. keeping families together: the definitive studies, nat’l coal. for child prot. reform (nov. 29, 2021), https://nccpr.org/theevidence-is-in-foster-care-vs-keeping-families-together-the-definitive-studies/ [https://perma.cc/x3h4-6lgn] (collecting studies comparing outcomes for children placed in foster care with outcomes for children remaining with their own families). 28 isabel wilkerson, caste, the origins of our discontents 73 (2020); see also id. at 70–71 (“caste is the granting or withholding of respect, status, honor, attention, privileges, resources, benefit of the doubt, and human kindness to someone on the basis of their perceived rank or standing in the hierarchy.”). 29 paul butler, the system is working the way it is supposed to: the limits of criminal justice reform, 104 geo. l. j. 1419, 1425–27 (2016) (persuasively setting up the argument that police violence against black men is a systemic, structural problem that requires radical, abolitionist change). 30 in 2019 (the latest available data), 61% of children reported were alleged to have been neglected, 10.3% were physically abused, and 7.2% were sexually abused. children’s bureau, u.s. dep’t of health & hum. servs., child maltreatment 2019, at ii (2019), https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2019.pdf [https://perma.cc/42fg -kchr] [hereinafter child maltreatment 2019]. beyond its obvious application to poverty-related neglect cases, a mutual aid model that provides true community support would likely reduce even the number of cases of physical abuse, because without mandated reporting, parents will be more willing to seek out and accept help. they will have a safe way to address the stressors of poverty. 2022] divest, invest, & mutual aid 607 appropriate education.”31 the government itself recognizes the deep connection to poverty: virtually all of the federal health and human services risk factors for neglect turn on a lack of resources such as “inadequate housing”32 and “financial problems.”33 experts at the centers for disease control and prevention also recognize that virtually all of the protective factors turn on material resources, such as “nurturing and safe childcare,” “access to medical care and mental health services,” and “steady employment.”34 d. child safety requires material investment in marginalized families instead of providing families with child care, health care, and housing, the nation’s policy has been to stigmatize aid and condemn children to poverty and inequality.35 the united states has virtually no social safety net, as compared to so many other nations. massive cuts in (already meager) welfare over the last twenty-five years, have produced childhood poverty rates that are at an all-time high, particularly among kids of color.36 to cite just one statistic, nearly eleven million children lack enough food to eat—an unacceptable fact in one of the richest countries in the world.37 since welfare “reform” in 1996, federal spending on cash aid to families has fallen 82%. the benefits are now so meager that many families are still left below the poverty line and usually unable to afford basic 31 okla. stat. tit. 10a, § 1-1-105 (2021); see also godsoe, abolitionist horizon for child welfare, supra note 5 (further discussing the class and cultural biases underlying the definition). 32 child maltreatment 2019, supra note 30, at 23 (listing risk factors including “inadequate housing: a risk factor related to substandard, overcrowded, or unsafe housing conditions, including homelessness; public assistance. . .”). one of the co-authors recently worked on a case that illustrates the punitive dynamic of family policing in the context of housing insecurity. ms. w.’s eight children were removed from her care for allegations of child neglect, after she complained to the building management about the lack of repairs completed in her apartment. ms. w. was only trying to ensure that her home was providing safe and healthy accommodations for her children. instead of supporting her in this process, the state intervened to seize ms. w.’s children and ensnare the family in costly and traumatizing legal proceedings. 33 id. at 23 (listing risk factors including “financial problem: a risk factor related to the family’s inability to provide sufficient financial resources to meet minimum needs”); risk and protective factors, ctrs. for disease control & prevention, https:// www.cdc.gov/violenceprevention/childabuseandneglect/riskprotectivefactors.html [https:// perma.cc/c5au-vj6c] [hereinafter risk and protective factors] (listing cdc risk factors including “food insecurity,” “economic stress,” and “concentrated neighborhood disadvantage”). 34 risk and protective factors, supra note 33. 35 see maxine eichner, what is the “free market family” and how can we end it?, l. & pol. econ. blog (may 24, 2021), https://lpeproject.org/blog/what-is-the-freemarket-family-and-how-can-we-end-it/ [https://perma.cc/8ky5-46aw] (noting that “the u.s. has long been an outlier . . . expect[ing] families to provide the conditions, cash, and services their members need to thrive”). see generally linda gordon, pitied but not entitled: single mothers and the history of welfare, 1890–1935 (1994) (presenting a history of stigmatization of public aid for poor single mothers and their families); khiara m. bridges, the poverty of privacy rights (2017) (describing the state’s invasions of poor mothers’ privacy rights in family and reproduction). 36 areeba haider, the basic facts about children in poverty, ctr. for am. progress (jan. 12, 2021), https://www.americanprogress.org/issues/poverty/reports/2021/ 01/12/494506/basic-facts-children-poverty/ [https://perma.cc/492q-j7dt]. 37 id. 608 colum. j. race & l. [vol. 12:601 housing.38 meanwhile, higher-income families are supported in numerous ways, such as with mortgage and college tuition tax credits, despite claiming not to take “handouts” from the state. accordingly, inequality continues to grow. what most families need is material help with housing, food, and other basic necessities. in 2021, a new york-based parents’ advocacy group, rise, published a report based on a participatory action research project with the legal group takeroot justice.39 as part of the project, they held “community conversations” and collected surveys asking parents themselves, particularly those who had been involved with the city’s family policing system, what they and their families needed most. the responses reflected the first-order need for information about and access to resources, without surveillance or punishment.40 more broadly, research shows a direct connection between removing families from welfare (particularly, the temporary assistance for needy families (tanf) program), and increased neglect cases (23%), as well as entries into foster care (13–16%).41 accordingly, increased income supports—such as the earned income tax credit, a higher minimum wage, expanded medicaid access, and supportive housing—would lead to lower rates of “neglect” and, in turn, lower rates of child removal.42 yet, rather than supporting these families on the front end, we spend billions of dollars to harm them via family policing and removal.43 despite recent legislation that moderately increases support for preventative measures, the system continues to vastly prioritize out-of-home placement over support to 38 diana azevedo-mccaffrey & ali safawi, to promote equity, states should invest more tanf dollars in basic assistance, ctr. on budget and pol’y priorities (jan. 12, 2022), https://www.cbpp.org/research/family-income-support/to-promote-equity-statesshould-invest-more-tanf-dollars-in-basic [https://perma.cc/26bx-xlyn]. 39 naashia b. et al., rise participatory action rsch. project & takeroot just., an unavoidable system: the harms of family policing and parents’ vision for investing in community care, rise 9 (2021) [hereinafter rise & takeroot just., an unavoidable system], https://www.risemagazine.org/wp-content/uploads/2021/09/ anunavoidablesystem.pdf [https://perma.cc/luz4-phq2]. 40 id. at 12–16. parents called for “well-resourced communities, including childcare, jobs, housing, community centers and supports such as therapy . . . financial investment in families, access to information about the rights, non-judgmental and compassionate care, and care from people with similar experiences and backgrounds.” id. at 6. 41 chapin hall, univ. of chicago, family and child well-being system: economic & concrete supports as a core component 24–27 (apr. 2021), https://www.in.gov/dcs/files/economic-supports-deck.pdf [https://perma.cc/vj4u-dhlz]. 42 id.; see also cara baldari & rricha mathur, increasing the minimum wage is good for child well-being, first focus on child. (aug. 21, 2017), https://firstfocus. org/blog/increasing-the-minimum-wage-is-good-for-child-well-being [https://perma.cc/7zrb99qs] (summarizing a new study on the minimum wage as well as prior research). 43 some states even divert most of the tanf money intended to support families of origin, to family policing and removal. eli hager, a mother needed welfare. instead, the state used welfare funds to take her son, propublica (dec. 23, 2021), https://www. propublica.org/article/a-mother-needed-welfare-instead-the-state-used-welfare-funds-totake-her-son [https://perma.cc/9dmt-kw3n]. 2022] divest, invest, & mutual aid 609 existing families.44 in 2018, eight out of nine billion dollars of congressional funding for child welfare went to foster care.45 indeed, experts have documented not only the fact that federal funding incentives are skewed towards removal, but also that it is the deliberate “revenue strategy” of many states to “mine” foster children for federal social security and other funds.46 to meet their fiscal needs, states use children who become wards of the state.47 more specifically, the higher the state’s percentage of children removed from low-income families and eligible for iv-e funding, and the longer they stay in foster care, the more federal dollars can be used for the state’s administrative costs,48 agency training-related costs,49 disability payments (if children are deemed eligible for social security disability benefits),50 and more. as succinctly explained by daniel hatcher, “[i]f the state receives more federal money, less state spending is required.”51 this skewed funding scheme is a major factor perpetuating family policing and separation. ii. mutual aid provides a model that has been historically empowering and helpful to marginalized communities in this part, we outline mutual aid as both a practical intervention and a political movement, and document its historical use in marginalized communities. we also flag state authorities’ consistent attempts to thwart these community-led efforts. this tension underlies our nuanced proposal that for families and communities truly to flourish, grassroots mutual aid programs should be community-run, but accompanied by a robust social safety net. a. what is mutual aid? mutual aid has been described as “community support” that “lift[s] up the least equal among us.”52 in addition to providing people with material goods such as food and clothing, mutual aid also constitutes an empowering governance model, “a form of political participation in which people take responsibility for caring for one another and changing political conditions, not just through symbolic acts or putting pressure on their representatives in government, but by actually building new social relations that are more survivable.”53 it is different from “charity” in the key sense that it is not a delivery from the rich to the poor, based on the 44 see family first prevention services act, pub. l. no. 115–123, 132 stat. 64 (codified as amended at 42 u.s.c. § 671) (providing for increased federal funding of prevention of foster care placements through various services); see also infra section iii.b.3 (critiquing the act). 45 emilie stoltzfus, cong. rsch. serv., r45270, child welfare funding in fy2018, at 1, 4–5 (july 30, 2018). 46 daniel l. hatcher, the poverty industry: the exploitation of america’s most vulnerable citizens 65 (2016). 47 id. at 66. 48 id. at 71. 49 id. at 72. 50 id. at 73. 51 id. at 69. 52 what is mutual aid?, supra note 4. 53 id. 610 colum. j. race & l. [vol. 12:601 giver’s funding priorities, with many strings attached, and creating a shame in dependency. in contrast, mutual aid is designed to be communally led through a relationship among equals. the aid is not based on means-testing and carries no stigma or threats. mutual aid builds solidarity. as dean spade describes, it is a “radical act of caring for each other while working to change the world.”54 it collectively ensures that marginalized and oppressed people get their basic needs met, while also developing group awareness and organizing together against the root causes of this oppression55—here, the failure of the state to support families. spade notes three “key elements” of mutual aid programs, including (1) meeting survival needs and building awareness of why people do not have what they need; (2) mobilizing people and expanding movements for change; and (3) “solving problems through collective action rather than waiting for saviors.”56 as an abolitionist movement, mutual aid is visionary. to quote dorothy roberts, abolitionism is both “destructive and . . . creative,” dismantling harmful and racist systems while rebuilding safer and more equal ones.57 similarly, as w.e.b. du bois conceived of it, “abolition democracy” is not only a destructive project of dismantling unjust institutions, but also a positive one of imagining and building a more just society—what post-civil war reconstruction should have been.58 du bois noted that slavery was only ended in a narrow, hyper-legal sense, and that the criminal system was one of the primary tools that the state powers used as a method of keeping black people at work and intimidating them.59 change would not come just from dismantling the criminal system or related unjust labor and property practices such as share-cropping; it would have to be accompanied by equal access to education, employment, and voting.60 in contemporary times, mutual aid continues to create new ways of relating to each other and building a more robust societal infrastructure.61 54 mutual aid: building solidarity during this crisis (and the next), dean spade, http://www.deanspade.net/mutual-aid-building-solidarity-during-this-crisis-and-the-next/ [https://perma.cc/ep4d-tsa5] (book abstract); dean spade, mutual aid: building solidarity during this crisis (and the next) 12, 82 (2020) [hereinafter spade, mutual aid: building solidarity]. 55 id. at 66. 56 id. at 13–34; dean spade, mutual aid is essential to our survival regardless of who is in the white house, truthout (oct. 27, 2020), https://www.truthout.org/ articles/mutual-aid-is-essential-to-our-survival-regardless-of-who-is-in-the-white-house/ [https://perma.cc/7bmn-5hda]. 57 roberts, abolition constitutionalism, supra note 11, at 43–44. 58 id. 59 see generally w.e.b. du bois, black reconstruction in america (1935) (studying the “retreat” into subjugation of black people and resistance against real abolition democracy in the period after emancipation); see also roberts, abolition constitutionalism, supra note 11, at 44 (discussing du boisian abolition democracy). 60 see angela y. davis, abolition democracy 95–97, 118 (2005) (noting that “[s]lavery could not be truly abolished until people were provided with the economic means for their subsistence,” as well as “access to educational institutions and . . . voting and other political rights”). 61 in times of natural disasters such as the california wildfires, puerto rico earthquake, and numerous hurricanes, “people default back to mutual aid . . . people spontaneously come together and care for each out in times of crisis.” miguel petrosky, what 2022] divest, invest, & mutual aid 611 this model is also inherently localized and anti-authoritarian, building grassroots community power rather than relying on the state or the “non-profit industrial complex.”62 creating spaces where oppressed groups can come together to both get their needs met and organize against the causes of their oppression helps to overcome the stigma and shame, which the government and society have consistently imposed on lowincome people throughout history.63 mutual aid marks a departure not only from government stigma surrounding state assistance, but also from nonprofits’ sometimes skewed funding priorities, hierarchical structures, and the one-way direction of charity. mutual aid eliminates stigma through a few deliberate aspects. unlike government assistance and charity, it is not uni-directional (although, as noted earlier, government assistance to more affluent families goes unrecognized as such). instead, mutual aid is, for lack of a better word, mutual—both the giver and the recipient benefit from each other’s experience, insight, and contributions; their roles may be reversed at any time.64 mutual aid also seeks to be proactive, rather than reactive, in recognition of the structural causes of poverty and other social harms: “mutual aid organizations strengthen community bonds to prevent problems from occurring in the first place.”65 mutual aid is also characterized by a lack of “strings attached.” there are no prerequisites (such as highly scrutinized proof of income) and no enforcement measures for compliance (such as “man in the house” inspections for men living with single mothers receiving public assistance).66 in this manner, mutual aid models avoid becoming the “degradation ceremonies” that so often accompany both government and private non-profit aid.67 b. historical use of mutual aid by marginalized communities in the past, marginalized communities have turned to self-help in the form of mutual aid to serve children’s welfare in the face of a punitive can mutual aid do in a disaster?, sojourners (oct. 5, 2021), https://sojo.net/articles/whatcan-mutual-aid-do-disaster [https://perma.cc/nxa2-e3ew] (quoting jimmy dunson, an organizer with mutual aid disaster relief). this includes distributing supplies, food, clothing, money, and necessities to others. id. 62 the role of the state in our model is a key aspect differentiating our model from some abolitionist models. many abolitionists (there is of course no monolithic definition) envision transforming the state, while mutual aid organizations exist largely outside of the state. 63 see, e.g., gordon, supra note 35, at 4–36 (presenting a history intersecting the welfare system’s structure with stigma against single-mother families); bridges, supra note 35, at 37–55 (examining various “construction[s]” of the stigma against poor black mothers, including in welfare reform and in the law). 64 mutual aid is similar to concepts of community self-defense, as outlined further infra section iii.c. 65 see sophie roppe, progress without profit: make room for mutual aid organizations, daily trojan (apr. 5, 2021), https://dailytrojan.com/2021/04/05/progresswithout-profit-make-room-for-mutual-aid-organizations/ [https://perma.cc/yhl9-usvc]. 66 see ife floyd et al., ctr. on budget & pol’y priorities, tanf policies reflect racist legacy of cash assistance 14 (aug. 4, 2021), https://www.cbpp.org/ sites/default/files/8-4-21tanf.pdf [https://perma.cc/8lyh-hplc] (explaining “man in the house” laws and their enforcement). 67 kaarin gustafson, degradation ceremonies and the criminalization of lowincome women, 3 u.c. irvine l. rev. 297, 301–302 (2013) (presenting finger imaging of public benefits recipients as an example of degradation and pointing to involvement with the criminal justice system as “[w]hat makes the degradation of the poor in the united states ceremonious,” ). 612 colum. j. race & l. [vol. 12:601 state that deprives those communities of material resources. black, asian, latinx, and other excluded groups rightfully skeptical of state aid, have long created and led mutual aid efforts.68 these usually began out of necessity, as a result of exclusion from societal and legal systems of employment, financial support such as banking, or even definitions of personhood. for instance, nyamagaga gondwe connects the “precarious constitution of black families in the slave economy” to ongoing expansive kinship networks and community support systems.69 other scholars have demonstrated that fraternal societies in the late nineteenth century into the early years of the great depression enabled women, immigrant, and other marginalized groups to access social-welfare services such as medical care and insurance, as well as social support, otherwise unavailable to them.70 indeed, dean spade argues that every “large, powerful” social movement has engaged in mutual aid.71 during the 1960s and 1970s, the black panther party made clear that overcoming white supremacy entailed not just political change and abolition of the policing and criminal systems, but also concrete supports to families such as child care, nutritious meals, and free medical clinics.72 at the same time, they aimed to teach the children (and adults) a “rigorous liberation curriculum.”73 the black panthers created over sixty survival programs including “acts of washing pots, distributing shoes, transporting elders to the grocery store, testing for sickle cell, and offering culturally relevant schooling[.]”74 the party’s efforts were based on the community’s 68 see the radical past and present of mutual aid, found. beyond belief (may 7, 2020), https://foundationbeyondbelief.org/the-radical-past-and-present-of-mutual-aid/ [https://perma.cc/lru3-gqks] [hereinafter the radical past and present of mutual aid] (presenting historical examples of mutual aid in order to articulate it as a “mainstay in communities that have often been abandoned or marginalized by government institutions”). 69 nyamagaga gondwe, the black tax, 74 tax l. rev. (forthcoming 2022) (on file with author) (also noting the presence of mutual aid and collective caregiving responsibilities among enslaved peoples). 70 david t. beito, from mutual aid to the welfare state: fraternal societies and social services 1890–1967 (2000) (noting that these societies were phased out of existence in large part by the welfare state, which never sufficiently supported lowincome people, including children, and has always come with stigma and surveillance). 71 spade, mutual aid: building solidarity, supra note 54, at 1. 72 id. at 13; erin blakemore, how the black panthers’ breakfast program both inspired and threatened the government, history (feb. 6, 2018), https://www.history.com/ news/free-school-breakfast-black-panther-party [https://perma.cc/5vf3-ryv8]. 73 spade, mutual aid: building solidarity, supra note 54, at 13–14. 74 mutual aid—today and tomorrow, people’s kitchen collective, http:// peopleskitchencollective.com/panthers-mutual-aid [https://perma.cc/3wcy-jtgz] (drawing inspiration from the black panther party’s programs and gathering information on mutual aid efforts in california’s bay area); see also survival programs, it’s about time: black panther party legacy & alumni, http://www.itsabouttimebpp.com/survival_programs/ survival_programs.html [https://perma.cc/8kyv-wk2l] (listing programs that the black panther party “instituted or envisioned starting” in order to “help african americans and other oppressed peoples meet their basic necessities”); dorothy hastings, ‘abandoned by everyone else,’ neighbors are banding together during the pandemic, pbs (apr. 5, 2021), https://www.pbs.org/newshour/nation/how-mutual-aid-networks-came-together-in-a-yearof-crisis [https://perma.cc/2k4q-el2s] (relating traditions of mutual aid, a “centuries-old practice,” to responses to recent crises such as the pandemic and natural disasters). for a historically rooted analysis of the survival programs, see generally mary potorti, “feeding the revolution”: the black panther party, hunger, and community survival, 21 j. afr. am. stud. 85 (2017). 2022] divest, invest, & mutual aid 613 values and started within the community, addressing nutrition and education needs as well as economic empowerment and resource-sharing.75 not only did these programs meet the basic needs of the black community, but they allowed black doctors, scientists, educators, and community members to work within their communities.76 the black panthers’ “serve the people” programs were so successful and powerful that j. edgar hoover, the fbi director at the time, described the breakfast for children program as “the best and most influential activity [for the black panther party] and, as such . . . potentially the greatest threat to efforts by authorities to neutralize the bpp and destroy what it stands for.”77 the night before the chicago program was to open, police broke into the church housing it and urinated on all the food.78 this disturbing incident illustrates both the power of these programs, and the extent the government will go to destroy or co-opt them. the latter is another reason, in addition to community self-determination, why we do not recommend a government mutual aid program. another prominent example is the transformation of the young lords from a largely puerto rican chicago-based “street gang” to a mutual aid group that organized free breakfasts and community tuberculosis and lead testing, ultimately occupying new york city’s lincoln hospital to provide free health care in 1970.79 they brought people into the puerto rican liberation movement by “starting with the everyday needs of puerto ricans in impoverished communities.”80 the young lords specifically sought to help poor and working class families, often meeting at the armitage avenue methodist church for sit-ins.81 further, the young lords “protested police brutality against black and brown men.”82 protests demonstrating such solidarity continue today, surging nationwide after the police murder of george floyd.83 in the family policing context, mutual aid could be a particularly promising intervention but has hardly ever been used until very recently. dorothy roberts has traced elements of mutual aid to the progressive era, 75 potorti, supra note 74, at 89–97, 107–108. 76 see the radical past and present of mutual aid, supra note 68 (referring to black mutual aid societies’ “self-sufficiency” and “employment network”); blakemore, supra note 72. 77 spade, mutual aid: building solidarity, supra note 54, at 14 (quoting hoover’s memo to fbi local offices). 78 id. 79 id.; the radical past and present of mutual aid, supra note 68. it is important to note that the term “gang” is often used to vilify community groups. see, e.g., babe howell, gang policing: the post stop-and-frisk justification for profile-based policing, 5 denver crim. l. rev. 1, 5 (2015) (“[t]he conflation of gangs and gang membership with violent crimes creates the misimpression that gang membership alone is a proxy for violent criminality.”). 80 spade, mutual aid: building solidarity, supra note 54, at 14. 81 sarah coffman, the young lords and the black panther party, digital chicago, https://digitalchicagohistory.org/exhibits/show/young-lords/young-lords-and-black -panthers [https://perma.cc/sck3-lmrb]. 82 id. 83 see larry buchanan et. al., black lives matter may be the largest movement in u.s. history, n.y. times (july 3, 2020), https://www.nytimes.com/interactive/2020/ 07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/4z55-uu79]. 614 colum. j. race & l. [vol. 12:601 when black women who were excluded from state institutions purporting to help children initiated their own programs within the black community.84 akin to mutual aid, these programs focused on children’s wellbeing embedded within their families and communities, and provided tangible assistance such as child care free of state strings.85 a mutual aid framework, however, has not influenced state “child welfare” policy; instead, the government, and many children’s advocates, have preferred to double down on family surveillance and separation. c. recent resurgence of mutual aid efforts more recently, many movements follow the mutual aid model. for one, child care collectives for parents involved in social movements are helping those parents more fully engage in activism while avoiding the punitive family policing system, by ensuring that children are not left home alone or unattended.86 we are also seeing a resurgence of mutual aid throughout the united states in the face of state failure during the covid19 pandemic and natural disasters.87 with groups such as the texas student mutual aid group trinity mutual aid providing groceries to community pantries and black queer groceries raising funds for contactless deliveries to black, queer, and trans people, the explosion of mutual aid highlights the potential for such assistance in dismantling the family policing system.88 in new york alone, nearly sixty mutual aid networks were operating during the pandemic. one group in brooklyn’s flatbush neighborhood focused on food distribution.89 east brooklyn mutual aid and the astoria mutual aid network also provided food to families so that many did not have to choose between paying rent and buying groceries.90 by providing families with necessities and resources faster than the government does, mutual aid reduces the risk that the administration for children’s services (“acs”—child “protective” services in new york—will be called for a lack of food or resources in the home. similarly, in houston, 84 dorothy e. roberts, black club women and child welfare: lessons for modern reform, 32 fla. st. u. l. rev. 957, 957–58 (2005) (introducing the overlooked history of black women’s “child service movement . . . which tied child welfare to racial advancement and justice” through organizing within women’s clubs and church groups). 85 see id. at 958–71. 86 free access to movements childcare collective, mutual aid disaster relief, https://mutualaiddisasterrelief.org/co-conspirators/free-access-to-movements-childcarecollective/ [https://perma.cc/7hsn-pwyv] (“fam [free access to movements] offers childcare at community events and grassroots political organizing meetings. . . .”). 87 mutual aid resources, movement for black lives, https://m4bl.org/mutualaid/ [https://perma.cc/b8w8-y2zp]. 88 see elizabeth merritt, mutual aid in time of crisis, am. alliance of museums: ctr. for the future of museums blog (aug. 12, 2020), https://www.aamus.org/2020/08/12/mutual-aid-in-a-time-of-crisis/ [https://perma.cc/z7c6-dls8]; madison semro, through the storms and beyond, trinity univ.: trinity mag. (apr. 12, 2021), https://www.trinity.edu/trinity-magazine/spring-2021/through-storms-and-beyond [https://perma.cc/a2b3-4jxm] (describing trinity mutual aid’s efforts for the san antonio community during winter storm shutdowns). 89 anna arons, an unintended abolition: family regulation during the covid-19 crisis, 12 colum. j. race & l. f. (2022). 90 keyna franklin, ‘our first priority is making sure people are ok’, rise (may 20, 2021), https://www.risemagazine.org/2021/05/east-brooklyn-mutual-aid/ [https://perma.cc/ tq7b-scd7]. 2022] divest, invest, & mutual aid 615 texas, the black women-led mutual aid organization, blmhtx, stepped up to check in on neighbors during the pandemic.91 it is this peer-to-peer assistance that gives mutual aid groups power—the power of spreading justice and supporting the collective wellbeing. this equal power dynamic from community member to community member moves away from the hierarchical structure of charities and nonprofits.92 similarly, parent movements like the one at rise have brought parents to the front and center of change while “working to build a peer and community care network to support families and give them information about resources, so that when families have challenging situations they can address them early on . . . without system involvement.”93 iii. divest from family policing and invest in community-led mutual aid delivering services or treatment through a punitive framework does not work.94 instead, keeping children and families safe and healthy requires divesting from the family policing system and investing in care. public funding currently spent on surveillance and removal/foster care should go to societal supports such as housing, mental health, substance abuse treatment, and child care. moreover, divesting and investing, taken together as a model, does not just entail better allocation of societal resources, but also a shift in power from state “experts” to the community— both components of mutual aid.95 this transformation requires questioning existing perceptions of child and societal protection. the divest/invest model that this part will outline changes the sticky narrative that children’s well-being comes from state surveillance and family separation, offering the alternative one that “basic necessities such as food, shelter, and freedom are what really make our communities secure.”96 this recognition compels a shift from a fear-based to a care-based framework for true community safety, and challenges the false binary between child 91 see hastings, supra note 74. 92 id. (citing proponents of mutual aid). 93 keyna franklin, how rise is working to support faster family reunification – and shrink the foster system, rise (june 16, 2021), https://www.risemagazine.org /2021/06/how-rise-supports-faster-reunification/ [https://perma.cc/a25r-78p5]. through interviews with parents themselves, rise has found that acs is virtually unavoidable in black and brown communities, acs fails to help parents, acs intervention inflicts trauma, acs involvement damages relationships, and parents suffer long-lasting consequences from acs involvement. see rise & takeroot just., an unavoidable system, supra note 39, at 6. 94 wald, supra note 12, at 21. 95 one co-author has looked to the participatory defense movement in criminal defense to illustrate this power-shifting. cynthia godsoe, participatory defense: humanizing the accused and ceding control to the client, 69 mercer l. rev. 715, 716 (2018) [hereinafter godsoe, participatory defense] (examining the participatory defense movement, which seeks to “transform the landscape of power in the court system”). parent-led movements in the family policing space are adopting similar models to “humanize the defendant . . . and increase visible family presence” in individual cases, as well as to address the system as a whole. see, e.g., family reunification, equity & empowerment (free) project, starting over, inc. https://www.startingoverinc.org/free [https://perma.cc/953d-rzaa]. 96 about, critical resistance, https://web.archive.org/web/20220310180902/ http://criticalresistance.org/about/. 616 colum. j. race & l. [vol. 12:601 protection and family health and integrity.97 on a broad scale, greater racial and class equality and more funding for families hold the potential to reduce harm and help better serve all children. a. divest a truly pro-family system entails both the divestment of state funding from family separation and punitive expertise and the concomitant investment in state support for families of origin, as well as a shift in power to community and parent expertise. as part i has shown, foster care has terrible outcomes for children, whereas material support for families (not what we currently call “prevention”) has proven to achieve successful outcomes for children and families.98 despite this substantial evidence, state funding is still very skewed to out-of-home care and to preventive “services” like drug testing and parenting classes, which harm rather than help families. indeed, every dollar spent on family separation and foster care takes away from potential spending on things families need.99 to cite just one recent example, experts estimate that the government will spend nine hundred and seventy-two million dollars ($972,000,000) on foster care, a cost of eighteen-thousand dollars ($18,000) per child, this year just for children who are removed due to their family’s lack of secure housing.100 helping their families of origin with rent and in-home services would cost only one fourth as much, two hundred and seventy-six million dollars ($276,000,000).101 the government should reallocate those dollars away from family policing, and begin giving families the material support they need to thrive. currently, most families can only access services via punishment.102 in many cases, only once family courts order services do parents actually receive assistance (still often not tailored to their needs), and even then, 97 see zach norris, defund fear: safety without policing, prisons, and punishment (2020) (proposing a continuum of societal supports in place of criminalization and punishment, and citing successful community programs). 98 for foster care, see supra notes 15, 25 and accompanying text; for efficacy of material support, see supra notes 37–39, 81–85, 142–147 and accompanying text. 99 analogously, see david scott, against imprisonment: an anthology of abolitionist essays 195 (2018) (“building a new prison is not just about putting money into the pain infliction industryit is also about shifting focus away from welfare support.”). 100 letter from ruth white, exec. dir., nat’l ctr. for hous. and child welfare, to jooyeun chang, principal deputy assistant sec’y and acting assistant sec’y, admin. of child. and fams., u.s. dep’t of health & hum. servs. 2 (mar. 2 2021), https://static1.squarespace.com/static/5a7dcc2a0100277e36127414/t/6044f78ec81e850732f6 44d5/1615132558695/stafford+act+request+to+acf+for+families+2021+revised.pdf [https://perma.cc/7hqh-pkf6] (referencing a 2021 cost analysis by the national center for housing and child welfare, comparing funding for the cost of foster care with funding for housing subsidization and related services). 101 id.; cf. nat’l ctr. for hous. and child welfare, nchcw housing–child welfare cost study 2015, https://static1.squarespace.com/static/5a7dcc2a0100277e36127 414/t/5c1286abc2241b1194b3569e/1544717995727/nchcw+housing+cost+savings+study +2015.pdf [https://perma.cc/9tl8-q3am] (concluding that the study “shows considerable savings to states when title iv-e [child welfare] funding is used to subsidize housing and supportive services”). 102 see rise & takeroot just., an unavoidable system, supra note 39, at 7 (“[m]ost parents are mandated to preventive services after being reported and experiencing an investigation.”); wendy a. bach, flourishing rights, 113 mich. l. rev. 1061, 1064–65, 1067–70 (2015) (reviewing clare huntington, failure to flourish: how law undermines family relationships (2014)). 2022] divest, invest, & mutual aid 617 under punitive terms; if parents do not comply with service plans, judges can punish parents for not complying with their orders.103 conversely, many existing public services, such as educational and healthcare systems, function as the point of entry for state surveillance into intimate spaces and family relations.104 this lack of community-based supports— particularly disproportionate in communities of color—also underlies many mandatory reports on families. 105 for instance, many parents become ensnared in the family regulation system because they are forced to call the police and other state actors for help with intimate partner violence and housing, due to the scarcity of resources in their communities.106 true community support entails funding for services that free individuals from the broad net of punitive surveillance and control, in exchange for services that provide true “dignity, care, and justice.”107 it also requires divestment from social work, legal, and other professionals tasked with family surveillance and separation.108 instead, we must learn from parents and community organizers—they know best how to care for their children.109 b. avoid reformist reforms of prevention & differential response here we consider two options within the system other than the current investigate/prosecute model: (1) preventive services, and (2) differential response. although these options are both better than the current prosecutorial model, they also risk net-widening. most importantly, they are never going to be implemented in a way that fully supports families, due to the stigmatizing politics and social worker surveillance that are endemic to the entire family regulation system. in other words, the current system cannot be repaired. it is doing what it was designed to do: surveil and control marginalized families. as a result, any reforms to the existing system risk becoming “reformist reforms,” which are sometimes worse than no reform at all.110 103 bach, supra note 102, at 1073. 104 kelley fong, getting eyes in the home: child protective services investigations and state surveillance of family life, 85 am. soc. rev. 610, 610–38 (2020). 105 see id. at 1795–97 (discussing the connection between mothers’ material hardship and mandatory reporting). about two-thirds of reports to the state central registry in new york are made by mandated reporters, who are required to report suspected abuse and neglect. mandatory reporters are usually state employees tasked with helping families, such as teachers, doctors, and shelter workers. rise & takeroot just., an unavoidable system, supra note 39, at 22. 106 see generally kelley fong, concealment and constraint: child protective services fears and poor mothers’ institutional engagement, 97 soc. forces 1785 (2019) (examining ways that communities “strategize to evade” state contact, such as concealment of domestic violence, particularly in relation to child welfare entanglement). 107 the people’s plan nyc, https://peoplesplan.nyc/ [https://perma.cc/qj9savd4] (presenting the “collective vision” of the plan, developed by hundreds of organizers across new york city). 108 see, e.g., leah a. jacobs et al., defund the police: moving towards an anticarceral social work, 32 j. progressive hum. serv. 37, 54 (2021); see also cynthia godsoe, the place of the prosecutor in abolitionist praxis, 69 ucla l. rev. (forthcoming 2022) [hereinafter godsoe, place of the prosecutor] (describing the need for lawyers to examine their role in supporting the carceral state). 109 see discussion infra section iii.c (on community defense). 110 see gilmore, supra note 10, at 242 (cautioning against reforms that “get caught in the logic of the system itself” to solve the system’s own problems); see also discussion infra 618 colum. j. race & l. [vol. 12:601 1. prevention investing in prevention is better than investing in foster care, but it is still very problematic. again, useless services, surveillance, and, worst of all, net-widening, enmesh families further in the punitive system. first, efforts to invest in prevention provide very limited direct support. one effort in particular, the family first prevention services act of 2018 (“ffpsa”), was enacted to use federal funding to provide mental health services, substance misuse treatment, and in-home parenting skillbased programs to families at risk of entering the family policing system.111 yet, this funding allocation is limited in scope and reach. when the numbers were broken down on a national level between 2018 and 2022, the ffpsa would only provide approximately four hundred and eighty dollars ($480) per child or family.112 substance misuse treatment lasts only twelve months, failing to account for relapses and the high recidivism rates among those who misuse opioids and other drugs.113 in-home services also failed to meet the needs of families experiencing homelessness and housing insecurity.114 second, prevention efforts like the ffpsa lead to more surveillance of black and brown families and their children. with mental health counselors providing updates and reports to family court, substance misuse treatment programs continually drug testing mothers, and parenting skills training actually taking place within the home, families become more entrenched in the family policing system without being provided a way out. analogous to efforts to decarcerate without an abolitionist horizon, these preventive efforts have the harmful effect of netwidening, thus expanding the surveillance, control, and punishment of marginalized communities.115 2. differential response differential response (“dr”) is the most promising model in the existing family policing system, but the “pathological politics” of the system section iii.b.3. for instance, preventive services can net-widen and increase funding for the family policing system. see discussion infra section iii.b.1. 111 the family first prevention services act enacted in 2018 allocates federal child welfare funding streams, title iv-b and title iv-e of the social security act, to be used to assist families at risk of entering the child welfare system, specifically by reimbursing states for families’ mental health services, substance abuse treatment, and in-home parenting skills training. family first prevention services act, pub. l. no. 115–123, 132 stat. 64 (codified as amended at 42 u.s.c. § 671). for in-depth explanations of the act, see family first prevention services act, nat‘l conf. of state leg. (apr. 1, 2020), http://www.ncsl.org/ research/human-services/family-first-prevention-services-act-ffpsa.aspx [https://perma.cc/h72r-u5jr]; family first prevention services act section by section, first focus campaign for child. (mar. 2018), https://campaignforchildren.org/wpcontent/uploads/sites/2/2016/06/ffcc-section-by-section-ffpsa.pdf [https://perma.cc/zr5e-vslq]. 112 caitlyn garcia, replacing foster care with family care: the family first prevention services act of 2018, 52 fam. l. q. 27, 35–36 (2019). 113 id. at 37–39. 114 id. at 39–41; cf. charlotte baughman. tehra coles, jennifer feinberg, & hope newton, the surveillance tentacles of the child welfare system, 11 colum. j. race & l. 501, 530 (2021) (critiquing the act’s focus on funding for formal services rather than material resources). 115 godsoe, place of the prosecutor, supra note 108. 2022] divest, invest, & mutual aid 619 nonetheless mean that differential response programs are under-utilized and set up for failure.116 differential response posits multiple pathways as a response to reports of child maltreatment, including alternative pathways from the “regular track” of cps investigation, prosecution, and foster care placement.117 under a dr model, families are subject to different response pathways based on factors reflecting risk of maltreatment.118 over half the states have implemented dr to some degree in the last fifteen to twenty years.119 these states’ rationales include: reducing the very high number of families that are in the system for poverty-related reasons; increasing services available to at-risk families; reducing the stigma of child protective services (“cps”) involvement; improving caseworker satisfaction; and addressing racial disproportionality.120 states’ dr programs are also considerably more costeffective than the regular track.121 towards these myriad ends, differential response departs significantly from traditional family policing. two key components of dr are: (1) a focus on meeting the material needs of struggling families, such as diapers and groceries; and (2) a service approach for caseworkers, rather than an “investigate and prosecute” model.122 guidance urges caseworkers to prepare to be “respectful and cooperative from the very first contact with the family,” noting that “[f]amily engagement and respect are core values.”123 accordingly, workers make appointments with families rather than the midnight knocks on the door typical of many family policing agencies.124 the contrast to the regular family policing system is stark, as 116 bill stuntz famously summarized the legislative one-way ratchet to increased criminalization and punitiveness. william j. stuntz, the pathological politics of criminal law, 100 mich. l. rev. 505, 509 (2001). we argue that the family policing system is very similar to, and closely intertwined with, the criminal system, and that many of the criminal system’s “pathological politics”––such as recognition of only one-sided risks and skewed media coverage—apply here. 117 children’s bureau, u.s. dep’t of health & hum. servs., differential response: a primer for child welfare professionals 1–2 (oct. 2020), https://www. childwelfare.gov/pubpdfs/differential_response.pdf [https://perma.cc/qe8a-meer]. 118 differential response in child protective services: analysis of state legislative provisions, nat‘l conf. of state leg. (dec. 15, 2019), https://www.ncsl.org/research/ human-services/state-legislation-differential-response.aspx [https://perma.cc/pp9g-z6ud]. 119 id. 120 see cynthia godsoe, symposium, just intervention: differential response in child protection, 21 j. l. & pol’y 73, 75–77 (2012) [hereinafter godsoe, just intervention]. 121 id. at 82. 122 most reports on families lead to no assistance. for instance, in california, ninety-two percent of reports of maltreatment were closed after initial contact by cps staff, with no services provided to the families, yet many of these families were re-reported shortly afterwards. sofya bagdasaryan et al., implementation of california’s differential response model in small counties, 23 protecting child., 40, 41 (2008). 123 n.y. state child protective services manual ch. 5, § d-1 (n.y. off. of child. & fam. servs. 2022) [hereinafter nys cps manual] (providing guidance on the conduct of family assessments). 124 id. the recent case of ms. m., whose newborn was removed by numerous police officers and child protective specialists at 3:00am, highlights the use of police to weaponize the family policing system. although the administration for children’s services’ own guidelines state, “defensive and angry behaviors towards child welfare workers or others can be a normal reaction to a stressful situation,” ms. m.’s reaction to the removal of her infant in the middle of the night unfairly became characterized as “imminent risk of harm.” 620 colum. j. race & l. [vol. 12:601 reflected in parents’ reactions. as one put it: “my caseworker was awesome. she saw that i wasn’t a bad mother. i just needed a little help to get back on the right track. and i love her for that.”125 workers recognize the change too: “families don’t believe you are actually going to help them. and when you do, they are flabbergasted.”126 in theory, dr programs focus on the family’s strengths and on “solutions to the family’s needs” rather than on whether there was maltreatment and who is responsible.127 instead of an approach where the caseworker mandates services—or goes to court to have them ordered—the agency and parents develop solutions together. states vary widely in their criteria, although none include physical or sexual abuse cases in their differential responses. the most common types of cases on dr’s alternative track are educational neglect, lack of supervision, and other more minor neglect cases.128 even where the law allows for a wide range of cases to go through dr, localities or individual workers usually underutilize it.129 virtually all the research on existing programs shows that dr systems are very effective, both in increasing family satisfaction and in improving safety rates for children; there are also far fewer traumatic interventions such as child removals and family separation.130 researchers noted two key points: more material resources provided to families, and greater respect accorded to parents.131 studies have overwhelmingly found that families in the dr track felt more listened to, helped, and generally positive about their experience with the agency.132 the research on the key issue of re-report rates also favors dr, although one or two local studies n.y.c. admin. for child. servs., principles to inform child welfare decisionmaking regarding mental health issues 1–2 (2013). 125 godsoe, just intervention, supra note 120, at 85 (quoting an ohio parent). 126 id. at 86 (quoting a caseworker who was interviewed in a nevada study, gary l. siegel et al., inst. of applied rsch., differential response in nevada: final evaluation report (2010)). 127 see, e.g., nys cps manual ch. 5, supra note 123, at a-2. guidance also specifies that “solutions are different than services and more than referrals.” id. at d-6. 128 godsoe, just intervention, supra note 120, at 79. 129 for instance, new york state allows this track for all neglect cases, other than severe neglect, but most localities use it only for a narrow category of the least serious cases, such as educational neglect. see nys cps manual ch. 5, supra note 123, at b-1–b-3 (setting forth restrictions on the eligibility for differential response). 130 the most comprehensive study found dr to be successful on all fronts. john d. fluke et al., off. of the assistant sec’y for plan. & evaluation, u.s. dep’t of health & hum. servs., differential response and the safety of children reported to child protective services: a tale of six states (2016), https://aspe. hhs.gov/system/files/pdf/204981/differentialresponse.pdf [https://perma.cc/l28e-swqs] [hereinafter differential response report] (using data from the national child abuse and neglect data system (ncands) for six states using dr from 2004 to 2013). see also godsoe, just intervention, supra note 120, at 82 (also reporting increased caseworker satisfaction in dr programs). 131 see, e.g., l. anthony loman & gary l. siegel, effects of approach and services under differential response on long term child safety and welfare, 39 child abuse & neglect 86, 91–96 (2015) (discussing empirical findings on the “shift[ ] toward material services to more families” and “changes in approach” in services, from a study on the implementation of dr program reforms in ten ohio counties). 132 see godsoe, just intervention, supra note 120, at 82, 85–87 (findings from numerous state-level studies). 2022] divest, invest, & mutual aid 621 indicate slightly higher re-referral rates for dr families.133 like the use of arrests to measure recidivism rates, the metric of re-reporting itself is flawed in measuring risk of maltreatment.134 more significantly, opposition to dr is usually driven not by data but by political opposition to change. given their empirical success and cost-effectiveness, one would think that dr programs would be expanding. this is unfortunately not the case. the pathological politics of the family policing system have instead led to doubling-down on the ineffective and harmful status quo. indeed, states are using dr less frequently than they were even a few years ago. to cite just two examples, minnesota, the state that had most widely and effectively used dr, rolled back its program considerably, and a new york county discontinued its program altogether.135 as in other locations, these programs were shrunk or stopped altogether after high-profile and very unusual child fatalities, with tenuous if any connection to dr, as well as political pressure to reserve all the funding for the traditional family policing system.136 in criminal law, this focus on extreme outlier examples is termed the “willie horton” effect, because an entire successful furlough program was upended (and likely a presidential election lost) because one of the thousands of participants committed a violent crime post-release. government officials used that tragic event to overlook the evidence that the hundreds of other participants in the program were very successful.137 family policing agencies are likely even more publicity-shy and skewed towards the risk of wrongful separation.138 revealing their vested interest in keeping the machine of family policing running, some researchers and agencies switched the baseline to argue that differential response had to be proven much more effective than the current system in order to justify 133 see differential response report, supra note 130, at 5–8 (presenting data on re-report rates across dr utilization in six states, and finding no association with increased risk of re-reporting). 134 see id. at 5 (explaining that child safety is “difficult to capture” and cautioning that “interpretation of re-reporting is confounded by many systemic factors”); cf. anna roberts, arrests as guilt, 70 ala. l. rev. 987, 1000–07 (2019) (problematizing the use of “rearrest as a proxy for recidivism” and the underlying use of arrest as “equivalent to guilt”). 135 mark hudson, minnesota’s experience with differential response, 28 apsac advisor 15, 15–16 (2016); david thompson, putting differential response into perspective, the imprint (nov. 2, 2014, 7:43 pm), https://imprintnews.org/child-welfare-2/puttingdifferential-response-into-perspective/8453 [https://perma.cc/3mfj-upq9]; monroe county ends use of alternative child protective services program, wham (june 21, 2018), https://13wham.com/news/local/monroe-county-ends-use-of-child-protective-servicesprogram [https://perma.cc/52e7-vmsz]. 136 monroe county ends use of alternative child protective services program, supra note 135; see also elizabeth bartholet, differential response: a dangerous experiment in child welfare, 42 fla. state u. l. rev. 573, 598 (2015) (critiquing dr for taking funding from regular track and listing nine states that recently limited or eliminated dr on the basis of funding tradeoffs or in response to a high-profile child fatality only tangentially linked to dr). 137 john pfaff, the never-ending ‘willie horton effect’ is keeping prisons too full for america’s good, l.a. times (may 14, 2017), https://web.archive.org/web/20220601 173015/https://www.latimes.com/opinion/op-ed/la-oe-pfaff-why-prison-reform-isnt-working20170514-story.html (discussing the “willie horton” effect). https://web.archive.org/web/20220601173015/https://www.latimes.com/opinion/op-ed/la-oepfaff-why-prison-reform-isnt-working-20170514-story.html 138 godsoe, abolitionist horizon for child welfare, supra note 5. 622 colum. j. race & l. [vol. 12:601 using it even for some small number of cases.139 this argument, however ignores the elephant in the room: there is no evidence that the current system keeps kids safe. in fact, the trauma of family investigation and separation, and the terrible outcomes from foster care, show that the system is harming children, families, and entire communities.140 when dr is used, it is inevitably set up for failure, since it is severely underfunded and implemented as an arm of the punitive family regulation system, rather than an independent path for families. first, the entry point is almost always a report of maltreatment.141 second, participation is usually not fully voluntary, but rather court-mandated and/or overseen by family policing system personnel.142 this can be netwidening, particularly in states where families who do not qualify for general system involvement are included in dr. third, many states provide no services, only referrals, or limit services to a very short-term period of two to three months, although the challenges and poverty facing these families are not solvable in sixty days.143 finally, the history and culture of family policing agencies do not seem to allow for a truly alternative track. the dual-mission agency problem is well-documented in administrative law literature.144 differential response can only succeed if it is administered through community-based organizations, separate from the family policing system. no state has done this.145 3. the fundamental shortcomings of reformist reforms in abolitionist theory, all reforms must be assessed against the horizon of dismantling the carceral state (transformative or abolitionist reforms), rather than inadvertently empowering it (reformist reforms). as mariame kaba explains in the context of policing, “[t]he only way that we will address oppressive policing is to abolish the police. therefore, all of the ‘reforms’ that focus on strengthening the police or ‘morphing’ policing into 139 see, e.g., bartholet, supra note 136, at 628 (comparing re-report rates to denounce alternative response); thompson, supra note 135, at 22 (comparing re-report rates to conclude that dr implementation “did not result in better child safety outcomes”); ronald c. hughes et al., issues in differential response, 23 rsch. on soc. work prac. 493, 502 (2013) (critiquing multiple studies on dr, and arguing that even “lower observed recurrence rates in [alternative response] families may not be a meaningful measure of the effectiveness of the ar program in ensuring children’s safety”). 140 critics also pointed out methodological characteristics of the dr research that are essentially true of all social work research. see alberta j. ellett, timely and needed perspectives on differential response in child protective services, 23 rsch. on soc. work prac. 521, 522 (2013) (making this point against dr critics). 141 godsoe, just intervention, supra note 120, at 88. 142 see, e.g., hudson, supra note 135, at 16 (noting that both tracks—alternative and traditional—are involuntary child protection responses); nys cps manual ch. 5, supra note 123, at g-1 (advising caseworkers faced with “uncooperative” families after just one week, with no full assessment, to make a new report of maltreatment on the traditional track). 143 see, e.g., nys cps manual ch. 5, supra note 123, at d-7 (advising workers who believe the family has ongoing needs at the end of the case to give the family “information regarding available services in their community”); see also bartholet, supra note 136 (describing the financial stipends provided by dr programs as “pathetically limited”); hudson, supra note 135, at 16 (noting that most children and families in the minnesota dr track were offered no services). 144 godsoe, just intervention, supra note 120, at 88–92. 145 id. 2022] divest, invest, & mutual aid 623 something more invisible but still as deadly should be opposed.”146 these include measures to increase police budgets to monitor police malfeasance and develop diversion programs that are ultimately controlled by law enforcement. in contrast, abolitionist steps reduce the funding and scope of policing by, for instance, capping overtime pay, refusing to re-hire police involved in excessive force, and, most of all, using police funding for other social goods such as housing and education.147 reformist reforms, as ruth wilson gilmore famously termed them, can be worse than no change because they entrench and further legitimate the existing system under new cover.148 by obscuring the true nature of fundamentally unjust and flawed institutions—be it the police, the family policing system, or the neo-liberal capitalist state—reformist reforms help to reinvent and perpetuate these institutions and the concomitant hierarchies of race and class.149 in contrast to reformist reforms, truly transformative changes modify power relations and yield greater selfdetermination for marginalized communities.150 thus, they are developed bottom-up, rather than formulated by elites, and they directly involve struggle—just like mutual aid. both preventive services and differential response, in their current iterations, are reformist reforms that further entrench the system as the primary state intervention to “protect” children. they likely net-widen to include more families. more broadly, they legitimate the system by dividing families into “worthy” and “unworthy” ones, obscuring the structural causes of family poverty and other struggles, and further perpetuating the false narrative of individual wrongdoing. drawing on concerns about police reforms, we conclude that slight improvements to the family policing system may similarly “smooth out the wheels of injustice” and render less visible the inherent brute force of the institution, thus prolonging its existence.151 c. invest in community-led mutual aid a mutual aid model has great potential to successfully support families. although research on the model in a family policing system is limited, the research there is supports this view. one study, out of canada, found that the parents in a mutual aid group “showed positive gains over 146 mariame kaba, police “reforms” you should always oppose, truthout (dec. 7, 2014), https://truthout.org/articles/police-reforms-you-should-always-oppose/ [https://perma. cc/jn2b-hprl]. 147 reformist reforms vs. abolitionist steps in policing, critical resistance, https://criticalresistance.org/wp-content/uploads/2018/06/cr_nocops_abolitionistreforms. pdf [https://perma.cc/q8yp-cevh]. 148 gilmore, supra note 10, at 23, 242. 149 rachel herzing, let’s reduce, not reform, policing in america, open soc’y found. (oct. 6, 2016), https://www.opensocietyfoundations.org/voices/let-s-reduce-notreform-policing-america [https://perma.cc/srm8-u9t8] (describing the hierarchical relations enforced through policing). 150 see amna a. akbar, demands for a democratic political economy, 134 harv. l. rev. f. 90, 97–98 (2020) (introducing “non-reformist reform” as a heuristic for grassroots social movements’ “bottom-up project” of democratic transformation and self-determination). 151 raj jayadev & pilar weiss, organizing towards a new vision of community justice, l. & pol. econ. blog (may 9, 2019), https://lpeproject.org/blog/organizing-towardsa-new-vision-of-community-justice/ [https://perma.cc/63vv-j3rx]. 624 colum. j. race & l. [vol. 12:601 the evaluation time period that were not apparent for the comparison group members receiving regular child welfare services.”152 the evidence from dr, as well as research on violence prevention and community health more broadly, further support the conclusion that unstigmatized universal support, particularly economic support, for communities would increase child wellbeing and family stability far more than the current system does.153 on this point, sociologist patrick sharkey’s research demonstrates that building up community resources and social infrastructure, such as local non-profits, can address even violent crime “at least as effective[ly] as the police” and with far fewer costs.154 accordingly, he calls for “investments in a different set of institutions [than law enforcement and the criminal system] driven by residents and local organizations that can play a central role in creating safe streets and strong communities.”155 relatedly, vivek sankaran, who represents parents in michigan, describes the false narrative “that cps has the tools to support families in crisis” and calls for agencies to “reimagine” how they serve families by providing, for instance, rental aid and food.156 given the strong correlation between family struggles and a lack of resources, a mutual aid model that increases community infrastructure without stigma or surveillance would likely bring very beneficial results. beyond the research, we know from families themselves that material aid and resources are what they most need, and that they and their communities know best how to safely care for their children.157 it not only provides essential material services, but also brings about destigmatized, bottom-up change that gives agency to the families most impacted by the system. mutual aid does this by “practic[ing] nonhierarchy, positioning recipients as members of the project––with a goal of 152 gary cameron & shelly birnie-lefcovitch, parent mutual aid organizations in child welfare demonstration project: a report of outcomes, 22 child. & youth servs. rev. 421, 421–22 (2000). 153 see, e.g., godsoe, place of the prosecutor, supra note 108 (summarizing research on violence prevention). 154 see roge karma, how cities can tackle violent crime without relying on police, vox (aug. 7, 2020), https://www.vox.com/21351442/patrick-sharkey-uneasy-peaceabolish-defund-the-police-violence-cities [https://perma.cc/6lf7-y8jv] (in conversation with sharkey, who references violence reduction outcomes gleaned from his own study on the expansion of the nonprofit sector, and from other studies on programs focused on transitional employment and public space). 155 id. 156 vivek sankaran, redesigning child welfare agencies to address the concrete needs of families, rethinking foster care (sept. 23, 2020), http://rethinkingfostercare. blogspot.com/2020/09/redesigning-child-welfare-agencies-to.html [https://perma.cc/fky93kcr]. sankaran has also observed, for example, that a michigan state program that provided civil legal services to families to prevent cps involvement was very successful until defunded. e-mail from vivek s. sankaran, clinical professor of law, univ. of mich. law sch., to co-author (feb. 12, 2021) (on file with authors). 157 see supra notes 39–40, 93, 102, 105 and accompanying text; rise & takeroot just., an unavoidable system, supra note 39, at 6. see also ashley albert et al., ending the family death penalty and building a world we deserve, 11 colum. j. race & l. 861, 869 (2021) (“we demand a world where the integrity of all families is valued and family ancestry is held sacred. in this world, families are supported and given the resources they need to thrive, and the family death penalty, or termination of parental rights, no longer exists.”); wald, supra note 12, at 16 (noting that agencies do not provide the treatment programs, housing, or economic aid “needed by most families”). 2022] divest, invest, & mutual aid 625 self-determination.”158 in the context of abolishing the family policing system, mutual aid reduces forced reliance on punitive state institutions by providing families and communities with autonomy. as the upend and parent-led movements tell us, “safety and protection of children [rest] with families and communities first.”159 instead of stigma, surveillance, and removal, parents should be lifted up; we should recognize their expertise and engage together in work as “community guardians.”160 the egalitarian and grassroots mutual aid framework decenters professionals, such as social workers and lawyers. rather, it builds on the collective expertise and reciprocal aid of people in our communities.161 one local program illustrates the promising potential of building on community expertise and local harm prevention infrastructure. the bay area transformative justice collective addresses more serious physical and sexual abuse, rather than the much more widespread and povertyrelated neglect.162 the organizing model centers on families’ chosen “pods” of support, correctly positing that many survivors, particularly in marginalized communities, “turn to their intimate networks before . . . state or social services.”163 empowering these pods to build prevention infrastructures aids both in individual cases and systemic change. 158 tammy gan, mutual aid: non-hierarchy in practice, bad activist collective, https://www.badactivistcollective.com/the-bad-book/mutual-aid-non-hierarchy [https://perma.cc/m6x2-tlnf]. 159 the upend movement seeks to end the “child welfare system” and reimagine a new, anti-racist means of helping children, families, and communities thrive by redirecting resources to the communities themselves. alan j. dettlaff et. al., it is not a broken system, it is a system that needs to be broken: the upend movement to abolish the child welfare system, 14 j. pub. child welfare 500, 508–11 (2020). 160 see norris, supra note 97, at 95 (positing community involvement in public safety as a remedy to the current “too narrow view of how community members can engage . . . and too broad a view of the role [state punitive authorities] should play”). 161 the participatory defense movement provides an analogous example of recognizing on-the-ground community expertise instead of relying on professionals. see godsoe, participatory defense, supra note 95, at 719–20 (introducing participatory defense as a “grass-roots movement”); jocelyn simonson, essay, the place of “the people” in criminal procedure, 119 colum. l. rev. 249, 266–70 (2019) (explicating participatory defense, whereby “community groups join together with families, friends, neighbors, and allies of defendants” to build a defendant’s criminal case, as an example of “bottom-up agonistic participation” that decenters legal expertise). broader community self-defense movements do so as well, by embodying the concept that “we keep us safe,” i.e. that true public safety comes from support systems for families and communities, who can also work together against violence and other harms through restorative justice and investments in resources like healthcare and housing, education and living-wage jobs, rather than top-down carceral interventions. mariame kaba, free us all: participatory defense campaigns as abolitionist organizing, new inquiry (may 8, 2017), https://thenewinquiry.com/free-us-all/ [https://perma.cc/263a-s63w] (describing local and mass self-defense campaigns in relation to abolition). 162 see jacobs et al., supra note 108, at 48–49 (detailing the bay area transformative justice collective’s commitment to “restorative justice interventions to child sexual abuse and other related forms of interpersonal violence”). 163 id. at 48. pods, or localized support groups, are a key mutual aid component. see mutual aid disaster relief, mutual aid 101: #wegotourblock, https:// mutualaiddisasterrelief.org/wp-content/uploads/2020/04/no-logos-mutual-aid-101_toolkit.pdf [https://perma.cc/h4mf-mdbu] [hereinafter mutual aid toolkit] (presenting a toolkit that includes steps for building a neighborhood pod). 626 colum. j. race & l. [vol. 12:601 d. the challenges of the mutual aid model there are several challenges to implementing a mutual aid framework in the family regulation context, both practical and political. one challenge lies in scaling up existing mutual aid models and, in particular, working in (arms-length?) collaboration with state programs. the mutual aid model is inherently local, but community-based mutual aid needs funding to expand.164 to remain local and to not be overwhelmed, it should be accompanied by a government social safety net that is truly “child protective.” both an adequately-funded social safety net and a robust community-led mutual aid network are key components of family health and safety. in the united states, however, the social safety net has always been underfunded. the extent to which to collaborate with governments at any stage is a difficult question for all abolitionist organizing. this is especially so for a mutual aid model of organizing which has been theorized as outside or even anti-government. tellingly, even those politicians advocating for mutual aid, such as progressive u.s. representative alexandria ocasiocortez, discuss a fully volunteer program, necessitated by ongoing government failure.165 there have, however, been some initiatives that could be broadly conceptualized as mutual aid with government support, both in the further and more recent past. for instance, working-class black women in the south collaborated with the federal government agency child development group of mississippi (cdgm) to found the child care and parental support program that became head start in the 1960s.166 rather than letting it be stigmatized as a state “handout,” the women were actively engaged in mobilizing their community around this new program.167 some were also employed as child care workers and teachers, harnessing their community expertise and increasing their financial stability.168 however, these programs are rare, in part because they are at constant risk of being defunded or co-opted. head start was defunded due to backlash by state and local segregationists.169 co-optation is perhaps a 164 spade, mutual aid: building solidarity, supra note 54, at 32–34 (discussing the meaning of “scaling up” mutual aid). analogously, as michael wald points out, scaling up successful family-support programs is always a challenge due to their contextual and intensive character. wald, supra note 12, at 23. 165 mutual aid toolkit, supra note 163, at 1 (referring to a public discussion between representative alexandria ocasio-cortez and organizer mariame kaba, calling for “community building and resource sharing” in a mutual aid response to the covid pandemic); see also jia tolentino, what mutual aid can do during a pandemic, new yorker (may 11, 2020), https://www.newyorker.com/magazine/2020/05/18/what-mutualaid-can-do-during-a-pandemic [https://perma.cc/rl59-6xbq] (quoting representative alexandria ocasio-cortez in stating that mutual aid would not wait for “congress to pass a bill, or the president to do something”). 166 see crystal r. sanders, a chance for change: head start and mississippi’s black freedom struggle 3–10 (waldo e. martin jr. & patricia sullivan, eds., 2016) (introducing the dynamics of local working class black mississippian women ’s involvement in “the cdgm ‘communigarten’ program”). 167 id. 168 id. 169 id. at 152–62 (delineating the segregationist opposition, defunding, and replacement of head start); remembering head start history: mississippi, 1966, nat’l head start ass’n (feb. 8, 2021), https://natlheadstart.medium.com/remembering-headstart-history-mississippi-1966-e71dc62b552e [https://perma.cc/sfx2-83ey] (noting that 2022] divest, invest, & mutual aid 627 more significant risk. this is what happened to the black panther’s breakfast clubs. they were co-opted by the department of agriculture through its school breakfast program, which continues today.170 this is not a wholly negative development, as more children are fed,171 but the government program comes with significant strings attached. it is usually administered in schools, includes the participation of mandated reporters, and carries stigma as a handout.172 moreover, it does not come with the organizing and solidarity that are key to a mutual aid framework.173 the government has made sure to thwart any efforts at community building and mobilization from the inception of the government-run version of the program.174 the big question is: will there ever be government-provided material support for families without punitive surveillance and stigma? political history says no. nevertheless, we are now at an extraordinary inflection moment. the pandemic has brought unprecedented recognitions of racist state violence and social inequality. this has increased public backing of state support for families, including—for the first time ever in american history—a universal child allowance.175 although mutual aid has helped those whom the state leaves out or punishes, it should not be on communities alone to support their children. accordingly, we propose divesting state funds from the family regulationto-foster care apparatus, and investing instead in marginalized communities’ infrastructure and health. as the #defundpolice movement puts it: “fully invest in care, not cops [including] allocat[ing] city funding toward healthcare . . . neighborhood-based trauma centers, non-coercive head start “challenged the status quo, disrupted the white power structures that were in place, and the political pressure to defund it mounted”). 170 blakemore, supra note 72; potorti, supra note 74, at 90, 108. 171 blakemore, supra note 72; see also spade, mutual aid: building solidarity, supra note 54, at 13–14, 29–31 (suggesting that the department of agriculture’s free breakfast program, as a co-optation and expansion of the black panther party program, could also be seen as a “concession [that] might also provide support to many more people than mutual aid groups can reach”). 172 see, e.g., bettina elias siegel, shaming children so parents will pay the school lunch bill, n.y. times (apr. 30, 2017), https://www.nytimes.com/2017/04/30/well/family/ lunch-shaming-children-parents-school-bills.html [https://perma.cc/8bd5-k92x] (citing the department of agriculture’s finding that almost half of all school districts withheld food from children, shaming them and their families over “unpaid bill[s]”); potorti, supra note 74, at 90–91 (detailing problems with the various federal food aid programs administered by the government in the 1960s). 173 spade, mutual aid: building solidarity, supra note 54, at 31–34 (contrasting locally run mutual aid frameworks with governmental initiatives that “centraliz[e] and standardiz[e]”). 174 see, e.g., potorti, supra note 74, at 90–91, 98–99 (examining the federal government’s endeavors to suppress the black panthers’ breakfast program, at the same time that the department of agriculture was piloting its own limited food programs). 175 steve dean & cynthia godsoe, it’s time for an antiracist welfare policy, imprint (mar. 15, 2021), https://imprintnews.org/child-welfare-2/time-for-an-antiracistwelfare-policy-america/52691 [https://perma.cc/xt2f-fczg]. at the same time, it was not renewed for a second year, in the one-step forward, two-steps back, or two-steps forward, one-step back, path to change that is so central to the american approach to societal problems. deepa shivaram, families are in distress after the first month without the expanded child tax credit’t, npr (jan. 21, 2022), https://www.npr.org/2022/01/21/10744 13273/end-expanded-child-tax-credit-families-effects [https://perma.cc/7lmx-6rmg]. 628 colum. j. race & l. [vol. 12:601 drug and alcohol treatment . . . teachers and counselors, universal childcare[.]”176 similarly, diverting billions of dollars from foster care and family court into food, housing, and cash grants would do far more to keep children safe and healthy, while saving families from the trauma of the current system. investments should be made in a social safety net and, most importantly, grassroots community-based organizations. the structural investment that states can provide is as important as the mutual aid that people build, in enhancing community dignity and self-governance. this combination is essential so that “those most impacted [can] control . . . the laws, the institutions, and policies that are meant to serve [the people].”177 iv. conclusion we strive to use this time, of both heightened awareness of and creative struggle against the over-policing of families of color, to propose a mutual aid model that truly empowers and supports families within a reimagined system of state interaction. as abolitionist leader mariame kaba points out, such a “change in society won’t happen immediately, but the protests show that many people are ready to embrace a different vision of safety and justice.”178 america must radically reimagine child welfare under this vision of safety and justice for families. working towards abolition, the proposed mutual aid model moves away from the current system’s appetite for stigmatization and extreme social control of families of color. this model divests from family policing and foster care and invests in community-led mutual aid. it calls for providing public funds directly to families for basic necessities and asking families what they truly need, rather than surveilling families through costly and harmful means. the history of mutual aid and the recent resurgence of mutual aid efforts in times of crisis, including the global health pandemic, demonstrate the power of providing such support to families without the stigma. collaborating with the government for funding and assistance presents challenges and concerns for abolitionists, but this paper seeks to show the promise of such efforts until abolition. while we strive to eventually abolish the system, it is crucial to remember that it is a process. some work with state agencies may be a short-term step, but we accept that work while always keeping an abolitionist horizon in view. most importantly, “abolition is not about simply ending the family policing system, nor is it about ignoring child safety; it is about creating the conditions in society 176 8 to abolition, abolitionist policy changes to demand from your city officials 4 (2021), https://static1.squarespace.com/static/5edbf321b6026b073fef97d4/t/5ee0 817c955eaa484011b8fe/1591771519433/8toabolition_v2.pdf [https://perma.cc/6ewhxwp5]. 177 community control, movement for black lives (feb. 21, 2021), https://m4bl.org/policy-platforms/community-control/ [https://perma.cc/aw89-5qxy]. 178 mariame kaba, yes, we mean literally abolish the police: because reform won’t happen, n.y. times (june 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/ floyd-abolish-defund-police.html [https://perma.cc/zf6a-wtqs]. 2022] divest, invest, & mutual aid 629 where the need for family policing is obsolete.”179 it is this radical cultural shift that government-supported mutual aid efforts will help encourage.180 179 alan dettlaff et al., how we endup a future without family policing 5 (2021), http://upendmovement.org/wp-content/uploads/2021/06/how-we-endup-6.18.21. pdf [https://perma.cc/e4nq-hcpz]. 180 id. i. family policing is harmful, racist, and punishes poverty a. family policing is harmful to children and their families b. family policing is racist c. family policing punishes poverty d. child safety requires material investment in marginalized families ii. mutual aid provides a model that has been historically empowering and helpful to marginalized communities a. what is mutual aid? b. historical use of mutual aid by marginalized communities c. recent resurgence of mutual aid efforts iii. divest from family policing and invest in community-led mutual aid a. divest b. avoid reformist reforms of prevention & differential response 1. prevention 2. differential response 3. the fundamental shortcomings of reformist reforms c. invest in community-led mutual aid d. the challenges of the mutual aid model iv. conclusion microsoft word cjrl johnson s17 final.docx from status to agency: abolishing the “very spirit of slavery” herman n. johnson jr.* in response to challenges that the disparate impact doctrine violates the fourteenth amendment’s equal protection clause, the thirteenth amendment provides a constitutional foundation that deflects the equal protection argument. early interpreters of the thirteenth amendment envisioned the provision as a means to abolish chattel as well as civil slavery, which was the condition of subordinate status shared by all black persons. resurrecting this interpretation of the thirteenth amendment reveals that early efforts to transform the status of black persons failed as they unduly focused upon freedom of contract, rather than measures to achieve effective, individual agency. interpreting the thirteenth amendment as a means of transitioning free black persons from status to agency demonstrates that the societal barriers prohibiting the transformation warranted programs and policies beyond the right to contract. based upon the dimensions of status suffered by black persons—perceived as stigma, station, and stratification—the disparate impact doctrine is an appropriate thirteenth amendment vehicle to aid in transforming the subordinate status of black persons. i. introduction ............................................................ 247 ii. resurrecting the definition of “slavery” as status ........................................................................ 256 * associate professor of law, cumberland school of law, samford university; juris doctor and master of international affairs, columbia university school of law and school of international & public affairs, 1999; bachelor of arts, economics, duke university, 1991. i wish to thank brannon denning, lajuana davis, and wendy green for their comments and suggestions. this work would not have been possible without the generous research stipend provided by my employer, cumberland, and so i thank the school for its support of my endeavor. last, but not least, i again thank my spouse and best friend, tamarra, for her patience, indulgence, edits, and insights as i drafted this article. 246 columbia journal of race and law [vol. 7:2 a. the thirteenth amendment’s inconclusive legislative and ratification history ................. 257 1. divergent interpretations by lawmakers and the citizenry ................................................. 257 2. the meaning attributed by former enslaved persons .......................................................... 261 b. the supreme court’s prevailing interpretation of the thirteenth amendment evaded the “very spirit of slavery” ................................................ 262 1. background ..................................................... 263 2. the civil rights cases ................................... 264 3. justice harlan’s dissent ................................ 265 4. canonizing justice harlan’s civil rights cases dissent .......................................................... 274 iii. status: stigma, station, and stratification ..... 275 a. stigma against black persons .......................... 276 b. station of enslaved persons .............................. 283 c. stratification of black persons’ labor .............. 288 1. background ..................................................... 288 2. stratification in the early united states slave system ........................................................... 294 3. stratification in the plantation slave system ........................................................... 296 4. the effect of cotton on stratification ........... 300 5. stratification after the civil war .................. 305 iv. transforming status into agency ...................... 309 a. the right to contract as the hallmark of free labor ................................................................... 310 b. transforming the status of dependence to the freedom of contract ........................................... 317 c. from status dependence to effective agency .. 325 d. unconscious bias and hidden discrimination as structural factors .............................................. 328 e. disparate impact liability as a measure to combat structural discrimination ................... 330 v. the thirteenth amendment’s prohibition of status serves a common purpose with the fourteenth amendment’s concern with racial classifications ........................................................ 332 vi. conclusion ............................................................... 339 no. 1:245] from status to agency 247 i. introduction observers praise griggs v. duke power co.,1 which established the disparate impact claim as a viable doctrine,2 as one of the supreme court’s most important civil rights decisions.3 but the dispute regarding the doctrine’s constitutionality lingers after the supreme court’s decision in ricci v. destefano.4 in ricci, justice scalia argued in his concurring opinion that the disparate impact claim may violate the equal protection clause because it requires an employer to engage in race-based, remedial conduct when its selection practices demonstrate a disproportionate impact upon a particular set of applicants; scalia suggested that disparate impact laws are tantamount to congress compelling employers to discriminate on the basis of race.5 1 griggs v. duke power co., 401 u.s. 424 (1971). 2 griggs interpreted provisions of title vii of the civil rights act of 1964, 42 u.s.c. § 2000e–2(a), (k), to establish the disparate impact doctrine. 401 u.s. at 430, 432. the disparate impact doctrine permits claims of discrimination without a showing that prejudice is a motivating factor for the discriminatory effects. 42 u.s.c. § 2000e–2(k) (2012). 3 see, e.g., robert samuel smith, race, labor, and civil rights: griggs versus duke power and the struggle for equal employment opportunity 1 (2008) (“judge damon keith of the sixth circuit, at the 75th annual convention of the naacp, remarked that griggs, “in [his] opinion even more than brown, has proved most significant in combating racial discrimination. . . . legal theorists have hailed the case as doing for employment what brown did for education: breaking down the massive barriers to african americans’ full and equal participation. in fact, keith accurately notes that griggs is an even more seminal decision due to the case’s role in delivering blacks and other marginalized groups economic justice.”); michael selmi, was the disparate impact theory a mistake?, 53 ucla l. rev. 701, 703 (2006) (“the griggs decision has been universally hailed as the most important development in employment discrimination law.”); robert belton, title vii at forty: a brief look at the birth, death, and resurrection of the disparate impact theory of discrimination, 22 hofstra lab. & emp. l.j. 431, 433 (2005) (“aside from brown v. board of education, the single most influential civil rights case during the past forty years that has profoundly shaped, and continues to shape, civil rights jurisprudence and the discourse on equality is griggs...”). 4 ricci v. destefano, 557 u.s. 557 (2009). 5 id. at 594–96. 248 columbia journal of race and law [vol. 7:2 in texas department of housing & community affairs v. inclusive communities project, inc.,6 the supreme court unexpectedly provided a justification for the disparate impact doctrine that assails justice scalia’s argument: disparate impact claims counteract hidden discrimination and implicit bias. in upholding the viability of the fair housing act’s disparate impact claim, the court proclaimed that disparate impact liability serves to attack practices born of “unconscious prejudices and disguised animus.”7 therefore, disparate impact liability does not compel employers to racially discriminate on behalf of some employees; it actually ensures that selection practices do not inappropriately exclude protected groups from an institution’s benefits based upon a criterion that is difficult to discern via disparate treatment standards.8 however, a question arises upon formulating the response to justice scalia’s ricci concurrence: what constitutional power underlies the rationale posited in texas department of housing?9 this article submits that the 6 tex. dep’t of hous. & cmty. affairs v. inclusive cmtys. project, inc., 135 s. ct. 2507, 2522 (2015). 7 id. 8 id. 9 the commerce clause has traditionally underpinned the civil rights act of 1964 in the past. u.s. const. art. i, § 8, cl. 3; heart of atlanta motel, inc. v. u.s., 379 u.s. 241, 250 (1964); katzenbach v. mcclung, 379 u.s. 274, 298 (1964). this path proceeds on a shaky foundation, however, as the court has curtailed the reach of the commerce clause in the years since congress relied upon the provision to buttress civil rights legislation. see nat’l fed’n of indep. bus. v. sebelius, 132 s. ct. 2566 (2012) (holding that the commerce clause could not sustain the patient protection and affordable care act’s individual mandate to purchase health insurance); united states v. morrison, 529 u.s. 598 (2000) (holding that the commerce clause could not sustain the civil remedy provision of the violence against women act); united states v. lopez, 514 u.s. 549 (1995) (holding that the gun–free school zones act exceeded congress’ commerce clause power); but see gonzales v. raich, 545 u.s. 1 (2005) (holding that congress may use the commerce clause power to apply controlled substances act proscriptions against intrastate users of marijuana). therefore, congress’ commerce clause regulatory power may not fare well against the no. 1:245] from status to agency 249 thirteenth amendment to the constitution—section two of which gives congress the power to enforce section one’s prohibition against slavery and involuntary servitude10— undergirds the court’s ‘unconscious prejudices and disguised animus’ rationale for the disparate impact claim. “unconscious prejudices and disguised animus” reveal the presence of diminished status, denoting the low esteem society accords to members of a particular group. properly conceived, the thirteenth amendment exists to remedy the diminished status of individual members of the aggrieved group. indeed, long-ignored interpreters of the thirteenth amendment provide that slavery in the united states encompassed a diminished status suffered by the enslaved population and free black persons. as perceived by those interpreters, the thirteenth amendment exists to aggrieve the diminished status suffered by persons under the various forms of slavery prevalent in the united states during the antebellum era; those forms are principally characterized as chattel slavery, defined as the ownership of individuals as property, and civil slavery, the state of one group being subordinate to other groups in society.11 specifically, defining slavery pursuant to nineteenth century conventions casts the thirteenth amendment as a vehicle to transition enslaved persons from the subordinated status of servitude to the liberated status of agency, which constitution’s requirement that congress afford equal protection under the laws. 10 the thirteenth amendment provides as follows: section 1. neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the united states, or any place subject to their jurisdiction. section 2. congress shall have power to enforce this article by appropriate legislation. u.s. const. amend. xiii. 11 linda przybyszewski, the republic according to john marshall harlan 91 (1999). 250 columbia journal of race and law [vol. 7:2 represents personal autonomy over individual actions and aspirations.12 however, the nineteenth century efforts to transform status proved insufficient as they failed to account for the structural impediments in society that impeded former slaves from transitioning to individual agency. the court’s insight in texas department of housing demonstrates that congress may proscribe these structural features that inhibit individual agency—particularly via the disparate impact doctrine—and congress’ endeavor is sanctioned by the thirteenth amendment’s aim to transition subjugated persons from status to effective agency.13 the ensuing parts of this article will explore the meaning of slavery as status and the thirteenth amendment’s focus to transition enslaved persons from status to agency. in part i, after reviewing the inconclusive legislative history of the thirteenth amendment and the meaning of freedom attributed to it by freed black persons, the article will assess the dichotomy in interpretation among supreme court justices. the assessment will reveal that some supreme court justices adopted the sociological view that the status of free black persons did not differ significantly from black persons who suffered under chattel slavery. most notable among these voices is justice john marshall harlan’s dissent in the civil rights cases.14 12 see mustafa emirbayer & ann mische, what is agency?, 103 am. j. soc. 962 (1998) (describing the interplay of the different dimensions of agency and defining agency as informed by the past but also oriented to the future and the present). 13 other articles discussing the thirteenth amendment as the constitutional foundation for disparate impact claims have not noted this linkage. see darrell a.h. miller, the thirteenth amendment, disparate impact, and empathy deficits, 39 seattle u. l. rev. 847 (2016) (arguing that “modern systemic empathetic failures towards minorities, and those of african descent in particular, are legacies” of slavery that may be remedied by the disparate impact claim as a thirteenth amendment instrument); marcia mccormack, disparate impact and equal protection after ricci v. destefano, 27 wis. j.l. gender & soc’y 100 (2012) (suggesting that the thirteenth amendment’s anti–subordination goal may support the disparate impact claim). 14 the civil rights cases, 109 u.s. 3 (1883). no. 1:245] from status to agency 251 harlan’s civil rights cases dissent deserves as much praise and allegiance as his plessy v. ferguson15 dissent, which is viewed as a forerunner to brown v. board of education.16 his dissent classifies slavery as involving not just formal chattel slavery, but also the civil slavery encompassing free black persons, a condition propagated explicitly by the dred scott case.17 other cases decided during the period also describe this phenomenon of civil slavery.18 these opinions depict the status of black persons as the “very spirit of slavery,” and support the conclusion that justice harlan’s civil rights cases dissent should be installed as a judicial canon evoking the proper interpretation of the thirteenth amendment. part ii examines the three dimensions of status underlying harlan’s conception of slavery—stigma, station, and stratification—so as to fully understand slavery and the concomitant scope of the thirteenth amendment. this analysis will depict stigma as the understanding that slaves were dehumanized and treated as animalized, inferior beings. station refers to the doctrine used to justify slavery against the moral arguments of abolitionists. slave owners and apologists developed an ideology of familial station; that is, slaves represented the lowest station in the families of slave owners—below spouses, children, and other servants—and slave owners assumed patriarchal control over the development of all these stations of individuals under their influence. the phenomenon of stratification portrays that slaves in the united states occupied the lowest rungs in the labor force and were relegated to performing menial work, unlike slaves in other slave systems. in part iii, the article establishes the thirteenth amendment as a measure to transition former enslaved persons from status to agency, from subordination to relatively liberated individuals. two nineteenth century 15 plessy v. ferguson, 163 u.s. 537 (1896). 16 brown v. bd. of educ., 347 u.s. 483 (1954). 17 dred scott v. sandford, 60 u.s. 393 (1857). 18 see, e.g., bryan v. walton, 33 ga. supp. 11 (ga. 1864). 252 columbia journal of race and law [vol. 7:2 sociological developments converge to shape the interpretation of the thirteenth amendment vis-à-vis the three aforementioned dimensions of slavery. free labor ideology posited the belief that freeing all forms of labor to pursue their self-interest in advancement, principally through the right to contract, would transform the labor force into artisans and independent owners of production. just as important, sir henry thomas maine declared in his seminal work ancient law that advanced societies evolved from establishing legal relationships on the basis of status to a legal order based upon individual contract.19 sociologist amy stanley elaborated upon this evolution, writing that the abolition of slavery represented a movement from the status of bondage to the freedom of contract.20 as part iii will reveal, nineteenth century interpreters of the thirteenth amendment failed to appreciate that the transition from the status of bondage could not rely merely upon the endeavor to give freed persons the right to contract. rather, the right to contract symbolized the more foundational concept of agency, which denotes the freedom of individuals to determine the course of their lives and take action to effect that course. as later sociologists understood, the province of agency runs head-on into structural features of society that impede the best efforts of individuals to achieve effective action. with this understanding, part iii crystallizes a primary impetus for the thirteenth amendment. the amendment exists to transition freed persons and their descendants from the status of slavery—conceived as chattel, civil, and social subordination—to the state of individual agency, and this transition sanctions the use of legal tools to effect the evolution. one such legal tool has been the provision 19 henry sumner maine, ancient law: its connection with the early history of society, and its relation to modern ideas 165 (1864). the afore–cited edition refers to the first united states cited edition. 20 amy dru stanley, from bondage to contract: wage labor, marriage, and the market in the age of slave emancipation 2 (1998). no. 1:245] from status to agency 253 of the right to contract and other rights (to acquire and sell property, etc.) free of discrimination, yet the thirteenth amendment also buttresses the use of the disparate impact doctrine as a tool to remove barriers to individual agency. as the court stated in texas department of housing, hidden discrimination and implicit bias exist in society as impediments to the exercise of rights.21 the disparate impact doctrine serves to address such bias. the disparate impact claims also serve to end racial stigma and stratification, which represent different variations of implicit bias. therefore, the disparate impact claim represents a proper exercise of congress' enforcement power under the thirteenth amendment because it serves to address discriminatory barriers constituting badges and incidents of slavery. finally, part iv provides that the disparate impact doctrine withstands any perceived violations of the fourteenth amendment’s equal protection clause because the thirteenth amendment compellingly justifies the doctrine’s proscription of discriminatory status. more critically, nineteenth century supreme court authority reveals that the thirteenth and fourteenth amendments work together to ensure that no class of persons should occupy a subordinate status to other groups. with this structural interpretation, a claim relying upon the thirteenth amendment for its constitutional foundation forestalls an argument that it violates the consonant provisions under the fourteenth amendment. this article examines the thirteenth amendment’s meaning sociologically because other methods of interpretation have not captured this dynamic in the amendment’s origin. reviewing the historical record underlying the passage and ratification of the amendment provides contested findings. the members of congress who passed the amendment appeared to have divergent understandings of the provision. some thought it would only eradicate actual slavery and involuntary servitude, whereas 21 135 s. ct. at 2522. 254 columbia journal of race and law [vol. 7:2 some believed it would also curtail discrimination in other facets of life. the states who ratified the amendment had their own interpretation as well, which traversed the gamut from mere prohibition of slavery to a broadly-defined conception of freedom. in addition, abolitionists had their own thoughts as to its meaning. all of these interpretations occurred against a backdrop where pervasive racial discrimination subjugated free black people in the antebellum north and south, and such discrimination persisted after the civil war. supreme court case law also leaves questions in its wake. notably, the 1883 majority decision in the civil rights cases held that congress may enact legislation to ameliorate the badges and incidents of slavery, which were perceived then as post-emancipation laws enacted by recalcitrant southerners that re-imposed the legal restrictions concomitant with slavery.22 the court’s interpretations of the amendment contracted and expanded for nearly a century until the court decided jones v. a.h. mayer co., where it held that congress possesses the authority to rationally specify the badges and incidents of slavery, and to pass legislation to address such problems.23 jones’ formulation of the thirteenth amendment standard has spawned numerous articles about its meaning. some commenters limit the thirteenth amendment’s enforcement clause to only prohibiting actual slavery and involuntary servitude.24 other scholars argue that the clause should be limited to addressing discriminatory violations that resemble chattel slavery or relegate people back to such 22 109 u.s. 3, 20 (1883). 23 jones v. a.h. mayer co., 392 u.s. 409 (1968). 24 see, e.g., herman belz, the civil war amendments to the constitution: the relevance of original intent, 5 const. comment. 115, 139–40 (1988) (arguing that the thirteenth amendment “was not intended as comprehensive grant of civil rights,” but chiefly to prohibit chattel slavery); harold m. hyman, a more perfect union: the impact of the civil war and reconstruction on the constitution 290 (1973). no. 1:245] from status to agency 255 slavery.25 still other scholars provide a broader interpretation of the amendment, positing that interpreters should heed the ideals of freedom embodied in the declaration of independence and trumpeted by some people before and during the civil war. this conception provides an expansive interpretation of the amendment, ostensibly calling for the protection of autonomy and liberty for all people.26 many of the articles interpreting the scope of the thirteenth amendment reach conclusions comparable to those of the aforementioned scholars.27 25 for example, jennifer mason mcaward argues that § 2 gives congress broad discretion to pass legislation that prevents the de facto reemergence of slavery, i.e., the badges and incidents of slavery. defining the badges and incidents of slavery, 14 u. penn. j. const. law 561, 624 (2012). badges and incidents of slavery refer “to public or widespread private action, based on race, or the previous condition of servitude, that mimics the law of slavery and that has significant potential to lead to the de facto re-enslavement or legal subjugation of the targeted group.” id. at 630. similarly, william m. carter, jr. argues that the badges and incidents of slavery should “be evaluated with reference to whether the identity of the victim and the nature of the injury demonstrate a concrete link to the system of chattel slavery.” william m. carter, jr., race, rights, and the thirteenth amendment: defining the badges and incidents of slavery, 40 u.c. davis l. rev. 1311, 1320 (2007). 26 the foremost expositor of this approach is alexander tsesis, who asserts that in a constitutional republic “each person has the right to pursue and fulfill his or her unobtrusive vision of the good life.” alexander tsesis, the thirteenth amendment and american freedom 5 (2004). “emancipation is only meaningful where persons are left free to fulfill their potential, unfettered by the ‘idiosyncratic judgments’ of others.” id. at 5. “the thirteenth amendment grants the united states government power to secure the autonomy of emancipated, equal citizens.” id.; see also lea s. vandervelde, the labor vision of the thirteenth amendment, 138 u. pa. l. rev. 437, 438 (1989) (“many members of congress envisioned the thirteenth amendment as a charter for labor freedom ... for these members, free labor was not just the absence of slavery and its vestiges; it was the guarantee of an affirmative state of labor autonomy.”). 27 see, e.g., george a. rutherglen, the badges and incidents of slavery and the power of congress to enforce the thirteenth amendment, in the promises of liberty: the history and contemporary relevance of the thirteenth amendment 171 (alexander tsesis, ed., 2010) (congress has the power to remedy a broad array of incidents of servitude); aviam soifer, protecting full and equal rights, in the promises of liberty (extolling the broad purposes of the civil rights act of 1866 under the thirteenth amendment); jack m. balkin & sanford levinson, the 256 columbia journal of race and law [vol. 7:2 although the approaches by those scholars are laudable, a comprehensive interpretation of the thirteenth amendment requires an analysis beyond an exegesis on the meaning of freedom. it also demands a long-due examination of the meaning of the word “slavery” in the thirteenth amendment. in defining slavery, sociological, and in certain respects, legal sociological insights and developments present a different lens for interpreting the thirteenth amendment and its enforcement clause. specifically, such studies define the particular meaning of slavery in the united states context, as well as the meaning of freedom attendant upon this understanding of slavery. this article will examine these sociological insights to develop the principle claim set forth previously: the thirteenth amendment provides a constitutional foundation for laws that combat implicit bias and hidden discrimination because it serves to transform persons from a status of bondage to the relative freedom of individual agency. ii. resurrecting the definition of “slavery” as status constitutional interpretation should begin with the text of the thirteenth amendment, yet that approach leaves us with the appraisal that slavery and involuntary servitude are not permitted in the united states. the question ensues whether the framers of the thirteenth amendment intended to limit the reach of the provision solely to the eradication of slavery and like conditions, or whether they envisioned some deeper purpose. the historical record underlying the passage and ratification of the thirteenth amendment does not dangerous thirteenth amendment, 112 colum. l. rev. 1447, 1497 (2012) (arguing that slavery had a broader, anti-republican meaning that supports a more expansive interpretation of the amendment); rebecca e. zietlow, james ashley’s thirteenth amendment, 112 colum. l. rev. 1695 (2012) (describing an interpretation of the thirteenth amendment that provides for the protection of fundamental human rights); jamal greene, thirteenth amendment optimism, 112 colum. l. rev. 1733 (2012) (the thirteenth amendment may be invoked to protect affirmative constitutional rights). no. 1:245] from status to agency 257 provide any clear answer to this question. however, certain supreme court jurists argued that slavery should be assessed in all its aspects, which encompasses chattel slavery as well as civil slavery, the subordinate status that linked free black persons to the enslaved denizens of the united states. a. the thirteenth amendment’s inconclusive legislative and ratification history 1. divergent interpretations by lawmakers and the citizenry one of the definitive accounts of the ratification history is michael vorenberg’s study in final freedom,28 which reviews the debates and considerations expressed by the framers of the thirteenth amendment. notwithstanding the senate judiciary committee’s efforts to avoid language similar to that in the french declaration of rights, senator charles sumner of massachusetts, a member of the radical republicans section of the republican party, submitted a major proposal phrasing the thirteenth amendment as affording “legal equality between the races.”29 thus, sumner’s initial draft language for the amendment guaranteed all persons the same civil rights.30 nevertheless, heeding pennsylvania republican senator edward cowan’s argument that the amendment should only prohibit enslavement and not radically alter the laws of the states,31 the senate judiciary committee rejected the more egalitarian language of sumner for that of the northwest ordinance.32 28 michael vorenberg, final freedom: the civil war, the abolition of slavery, and the thirteenth amendment (2001). 29 id. at 57. sumner’s language declared “all people equal before the law.” id. at 51. 30 id. at 55. 31 id. at 55–56; see also howard devon hamilton, the legislative and judicial history of the thirteenth amendment 56 (1996) (describing the views of some senators that the amendment freed people from slavery but did not give them citizenship). 32 hamilton, supra note 31, at 55. the northwest ordinance governed the territories acquired by the united states north and west of the 258 columbia journal of race and law [vol. 7:2 unmistakably, a few members of the senate judiciary committee believed that the rejection of sumner’s language indicated merely a difference in style, not substance, and thus the proposed amendment ostensibly guaranteed freedoms broader than manumission.33 this view by some senators failed to acknowledge that the senate judiciary committee rejected sumner’s proposal because of the association of such language with sumner’s radical republican views.34 the senate judiciary committee also considered the views and votes of the northern democrats, who would reject any amendment connected to sumner or that similarly mentioned equality.35 the rejection of sumner’s language maintained antislavery democrats’ commitment to a moderate amendment.36 the language actually approved by the senate judiciary committee, and ultimately by congress and ratified as the amendment, did not suit sumner. he believed that much more was needed beyond the adopted iteration of the amendment to secure freedom and equality.37 ohio river, which presently comprise the states of indiana, illinois, michigan, ohio, wisconsin, and part of the state of minnesota. the law provided that “[t]here shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted.” id. at art. vi. 33 vorenberg, supra note 28, at 56; but cf. george h. hoemann, what god hath wrought: the embodiment of freedom in the thirteenth amendment 159 (1987) (“freedom was the plenitude of rights, and slavery the negation of rights. but freedom held precedence, so that it was incorrect to reverse the order and make liberty the mere negation of slavery. this was a lesson of the war abolitionists and radical [sic] proposed and fought for, and a key to understanding the scope of the thirteenth amendment.”). 34 vorenburg, supra note 28, at 58. 35 id. at 58–59. 36 id. at 59. 37 id. at 60. vorenberg estimates that this “[t]his short–term strategy for securing the amendment’s adoption had an unanticipated, powerful long–term effect on civil rights law.” id. at 59. although some senators may have believed the language of the thirteenth amendment accomplished sumner’s intent, their rejection of sumner’s original language “unwittingly placed an effective cudgel in the hands of later jurists and legislators who beat down any attempt to broaden the amendment into an extension of civil equality for african americans.” id. no. 1:245] from status to agency 259 the ratification history of the amendment by the states reflects the same contested meaning, as there was no unity among politicians for the proposition that the amendment protected civil, political, and social rights.38 president andrew johnson and secretary of state william henry seward sought ratification in the confederate states by assuring southern lawmakers of the amendment’s limited scope, including an interpretation restricting the amendment’s enforcement clause.39 furthermore, congressional republicans and northern state-level republicans differed on the rights accorded by the amendment. although they agreed that the amendment would afford civil rights such as the right to contract, rent or own property, marry, sue in court, etc., some state-level republicans believed the amendment affected black persons in seceded states only, not loyal states.40 after the amendment’s ratification, some senators asserted interpretations that were not voiced before ratification, such as the proposition that the amendment gave all persons the same civil rights.41 contrastingly, kentucky republicans attempted to attach legal disabilities to black persons, and indiana republicans rejected the contention of their democratic counterparts that the amendment would make black persons first-class citizens.42 as concluded by vorenberg, “[t]he quest to determine which interpretation of the thirteenth amendment is most credible or most authoritative is endless and, to a certain extent, pointless, for the measure never had a single, fixed meaning.”43 the framers of the thirteenth amendment diverged in their 38 vorenberg, supra note 28, at 220. 39 id. at 229. 40 id. at 221. 41 id. at 236. 42 id. at 220, 221. the black codes were laws passed by southern states in the immediate postwar period that were designed to control freed black persons and force them to work against their will on former plantations. the laws included vagrancy prohibitions, draconian apprenticeship provisions, and broad police powers. id. at 230. 43 vorenberg, supra note 28, at 237. 260 columbia journal of race and law [vol. 7:2 definitions of freedom and intentions for emancipation, some of which remained amorphous or obscure for political advantage.44 vorenberg’s analysis is shared by other historians,45 including the assessment by preeminent reconstruction historian eric foner in his article reviewing the meaning of freedom. after discussing the varied descriptions of freedom since the inception of the republic, foner found that abolitionists believed emancipation would ensure a measure of civil rights for freed persons.46 black abolitionists proceeded further and advocated for all civil, social, and political rights enjoyed by white citizens.47 white southerners believed that emancipation did not vanquish a state of dependency befitting freed persons,48 whereas northern republicans initially could agree on nothing more than contractual and property rights for freed persons.49 although northern republicans eventually included political 44 id.; see also id. at 237–38 (“and even before the amendment had been approved by congress and ratified by the states, congressmen, like all americans, had begun to reevaluate the measure in new social, political, and legal contexts…conservative republicans preferred that the states rather than the federal government uphold civil rights. and republicans as a whole ignored the amendment’s potential impact on african americans’ legal status in the north.”); eric foner, remarks at the conference on the second founding november 14, 2008, 11 u. pa. j. const. l. 1289, 1291 (2009) (“i do not think any historian would attribute a single, universally accepted original meaning to the thirteenth amendment.”); but see hamilton, supra note 31, at 59 (the amendment was designed to address more than what a private individual could accomplish with manumission.). 45 many different voices had conceptions about emancipation and the thirteenth amendment, from abolitionists (protection of rights), to congressional representatives (“repealing the effects and concomitant attributes of slavery rather than positively secure rights for [b]lacks”), to unionists (“equal rights before the law”), and for yale professor george p. fisher, natural rights, including “justice, liberty, the fruit of labor, family, and education, among others.” hoemann, supra note 33, at 28, 42, 46, 49, 52, 112. 46 eric foner, the meaning of freedom in the age of emancipation, 81 j. am. hist. 435, 451 (1994). 47 id. at 452. 48 id. at 454–55. 49 id. at 455. no. 1:245] from status to agency 261 rights within the meaning of freedom, their meaning of civil freedom did not extend beyond the right to own property and form contractual relations.50 thus, the passage of the thirteenth amendment starkly raised the vexing issue of the meaning of freedom, whether it involved solely emancipation or more aspects of freedom, such as equality, citizenship, and protection of fundamental rights.51 all manner of groups contested the meaning of freedom, and its interpretation changed considerably during the postbellum era.52 2. the meaning attributed by former enslaved persons as this recitation of the thirteenth amendment’s ratification history demonstrates, the voices of the former enslaved persons were largely absent from those debates. however, other sources portray that they attached broader aspirations to the thirteenth amendment and the meaning of freedom both before and after its ratification. frederick douglass campaigned for the attendant benefits of emancipation, including eradication of discrimination, equality before the law, and suffrage.53 when general sherman queried black charleston leaders about the meaning of slavery, garrison frazier responded that it essentially means forced labor, and he thus defined freedom as the liberty to reap the rewards of labor, preferably by owning and tilling land.54 former slaves defined freedom as family cohesion, bodily integrity, and educational opportunity; and one minister stated that it represented the enjoyment of rights shared by all human beings.55 thus, the broader objectives of emancipation depicted the desire for 50 id. at 457. 51 eric foner, reconstruction: america’s unfinished revolution, 1863–1877 66–68 (1988). 52 id. at 77. 53 id. at 27. 54 id. at 70–71. 55 id. at 78. 262 columbia journal of race and law [vol. 7:2 independence and autonomy on behalf of freed persons and their communities.56 freed black people considered slavery to be barbarous and oppressive, lamenting such practices as whippings, family separation, and other acts enforcing subjugation that permeated their experiences as slaves.57 thus, maintaining a stable family was a badge of freedom which contrasted the dehumanizing disruption of enslaved families.58 moreover, freed black persons valued education as a central tenet of freedom, and this value reflected the desire for autonomy and self-improvement they believed to be so indicative of freedom.59 freedom of labor entailed receiving wages for work, controlling the conditions of work, and gaining autonomy from white control.60 b. the supreme court’s prevailing interpretation of the thirteenth amendment evaded the “very spirit of slavery” as the voices in larger society and among politicians contrasted on the meaning of freedom under the thirteenth amendment, members of the supreme court eventually engaged in a rhetorical contest on the amendment’s interpretation until one perspective ultimately prevailed.61 however, the supreme court’s members diverged from viewing the rhetorical contest as a debate on the meaning of freedom. rather, the court’s members endeavored to define the meaning of slavery conceptualized in the amendment. in this arena of debate, the northern democratic perspective prevailed in the supreme court’s legal contest on the meaning of slavery.62 56 id. 57 foner, supra note 51, 78–79. 58 id. at 88. 59 id. at 96. 60 id. at 103. 61 pamela brandwein, reconstructing reconstruction: the supreme court and the production of historical truth 1 (1999). 62 id. at 41. no. 1:245] from status to agency 263 1. background although there were some significant differences in their ideologies, both moderate and radical republicans believed that emancipation compelled the protection of liberty against popular majorities, which resulted in an insistence upon the protection of certain civil rights.63 in the main, republicans believed that the post-civil war era—that is, the postbellum era—still presented slavery’s challenges,64 and accordingly, they sought some civil rights for freed persons in an attempt to forestall efforts to legally maintain a racial caste system in the south.65 the northern democrats viewed the civil war primarily as a dispute over the right to secede from the union based upon the issue of slavery. after the war, they determined that ensuring freed persons self-ownership resolved all issues.66 the supreme court increasingly adopted the northern democrats’ viewpoint over other perspectives in the debate, resulting in the stance that liberty ensued primarily in the protection of popular majorities against the government.67 prominent voices viewed the oppression of individuals by popular majorities as another threat to liberty. this perspective recognized that abolishing slavery compelled the protection of former slaves from unsympathetic majorities in the former confederacy.68 eventually, the northern democrat’s perspective prevailed as northern legislators retreated from civil rights enforcement during reconstruction and reached a truce to permit entrenchment of jim crow laws in the south.69 63 id. at 30, 48. 64 id at 47. 65 id. at 54. 66 id. at 61–65. 67 brandwein, supra note 61, 89–91. 68 id. at 89–91. 69 id. at 82–85. 264 columbia journal of race and law [vol. 7:2 2. the civil rights cases as stated previously, supreme court justices engaged in this rhetorical contest over the definition of slavery and the resultant interpretation of the thirteenth amendment. the preeminent case inciting this contest was the civil rights cases. although justice john marshall harlan’s dissent in plessy v. ferguson is more widely acclaimed today, his dissent in the civil rights cases was more widely celebrated at the time of the decision.70 his dissent established a vision of the thirteenth amendment and the definition of slavery that should be viewed as the proper interpretation of the amendment. in the civil rights cases, the court had to review the constitutionality of the civil rights act of 1875, which prohibited discrimination in the provision of public accommodations.71 in his majority opinion, justice joseph p. bradley ruled that congress may enforce the thirteenth amendment by addressing the badges and incidents of slavery,72 but he declared that such instances were limited to forced labor; restrictions upon movement; suppression of rights to acquire property, make contracts, and pursue court actions; and other similar burdens.73 justice bradley also remarked that the thirteenth amendment did not give congress the authority to “adjust” the social rights of the races occasioned by private conduct.74 as such, he resolved that the amendment regulates distinctions based upon slavery, not race, color, or class.75 bradley concluded, 70 many people praised harlan for his dissent in the civil rights cases. plessy did not attract much attention because most white citizens believed the issue of segregation—whether by private rules or public law— had been settled by the time plessy was decided. przybyszewski, supra note 11, at 95. 71 civil rights cases, 109 u.s. at 4 (1883). 72 id. at 20. 73 id. at 22. 74 id. 75 id. at 24. no. 1:245] from status to agency 265 there were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty, and property the same as [w]hite citizens; yet no one, at that time, thought that it was any invasion of their personal status as freemen because they were not admitted to all the privileges enjoyed by [w]hite citizens, or because they were subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement. mere discriminations on account of race or color were not regarded as badges of slavery.76 bradley conceived chattel slavery as separate and apart from racial discrimination, and found antebellum free black persons did not suffer the badges and incidents of slavery when they occupied a subordinate status and suffered discriminatory prohibitions.77 3. justice harlan’s dissent in his dissent, justice harlan presented a contrasting voice on the definition of slavery, although his early stance on the institution would not have encouraged such a conclusion. as the kentucky attorney general, harlan sought to circumvent the legal prescriptions of the thirteenth 76 id. at 25. 77 justice bradley signaled in an opinion before the civil rights cases that he may have countenanced a broader interpretation of the thirteenth amendment, but his majority opinion in the instant case belies that finding. see blyew v. united states, 80 u.s. 581 (1872) (bradley, j., dissenting) (stating the framers designed section two of the thirteenth amendment to address the incidents and consequences of slavery, and instill civil liberty and equality for the freed persons); cited in, hamilton, supra note 31, at 61; see also brandwein, supra note 61 at 69–71. bradley’s conversion may have resulted from a desire for “national reconciliation” and stability during the late reconstruction period. id. at 71, 233. 266 columbia journal of race and law [vol. 7:2 amendment and reconstruction statutes.78 as late as 1871, harlan railed against social equality between the races, specifically by condemning a federal lawsuit that integrated streetcars in louisville, harlan’s hometown.79 as a politician in 1875, he believed that blacks could be afforded civil rights without social equality; that is, white individuals could maintain their social prejudice against black persons.80 indeed, harlan definitely evolved in his thoughts about black people, as at one point in 1864 he recounted a story to an audience about “’ze little [b]lack [n*****].’”81 in 1871, he identified black delegates to a convention as “three of the [b]lackest and ugliest darkies in the commonwealth.”82 as a candidate for office, he actually opposed the civil rights act of 1875, the statute that he later championed in his civil rights cases dissent.83 as one biographer proclaims, harlan’s change in beliefs may have resulted from a sense of paternalism.84 he and his family owned slaves, and while owning them apparently felt an obligation for their well-being, even though he believed the races were fundamentally different.85 justice harlan accepted the changes wrought by the civil war amendments because of this racial paternalism.86 harlan chose between unlimited white power—which resulted in white supremacy and brutality—or his conception of paternalism, which placed boundaries on the conduct that white people could exhibit towards black people.87 by 78 przybyszewski, supra note 11, at 38. apparently, the racial violence during the post–civil war period pushed harlan to become a republican. id. at 39 79 id. at 83. 80 id. at 87. 81 tinsley e. yarbrough, judicial enigma: the first justice harlan 139 (1995). 82 id. 83 id. at 84. 84 przybyszewski, supra note 11, at 34. 85 id. at 18, 42. his spouse, malvina harlan, claimed that “good slaveholders” “cherished” slaves as household members. id. at 26. 86 id. at 34. 87 id. at 40. no. 1:245] from status to agency 267 choosing the latter, he adopted radical prescriptions for change.88 harlan designated his task as affording christian redemption for black persons, and this endeavor reflected his paternalistic and prejudiced notions that white individuals possessed a duty to protect the rights of other people and secure economic advancement for them.89 in his dissenting opinion in the civil rights cases, justice harlan directly linked the “status” of free black persons before the civil war to those who were enslaved. because harlan was exhibiting writer’s block in drafting the dissent, his spouse, malvina harlan, placed the inkstand of former chief justice roger b. taney [who authored dred scott] on his desk. upon discovering it after church one sunday morning, harlan penned his dissent in short order, spurred by taney’s role in dred scott.90 indeed, dred scott played a pivotal role in harlan’s analysis. whereas bradley defined slavery merely by the burdens and disabilities of chattel slavery, harlan included the evils of both chattel and civil slavery in his conception.91 civil slavery comprised the experiences of “second-class citizenship,” and many african american thinkers, including frederick douglass, lobbied against this form of slavery as much as chattel slavery.92 douglass stated that many free 88 id.; see also id. at 64–65 (harlan deemed the declaration of independence to be the united states’s “political bible,” and it reflected the framers’ values of freedom more than the constitution. the civil war represented efforts to instill the values of the declaration.). 89 id. at 86, 116. as evidence of his evolved egalitarianism, one biographer notes that harlan associated with frederick douglass, even meeting him at his home on occasion, and harlan attended douglass’ funeral. yarbrough, supra note 81, at 142. 90 see loren p. beth, john marshall harlan, the last whig justice 229 (1992); przybyszewski, supra note 11, at 93–94. 91 harlan biographer linda przybyszewski expressly characterizes harlan’s arguments as an objection to “civil slavery.” przybyszewski, supra note 11, at 92–94, 114. 92 id. at 92–94; see also w.e.b. du bois, black reconstruction in america 136 (1962): 268 columbia journal of race and law [vol. 7:2 black persons during the antebellum period were “aliens” in the united states and essentially “slaves of the community.”93 harlan invoked these ideas in the interpretation of dred scott in his civil rights cases dissent. dred scott held that black persons in the united states—whether slaves or free persons—were not citizens of the united states. rather, they were a “subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.”94 harlan argued that the thirteenth amendment operated to change this condition—this status, as coined by justice bradley—shared by all black persons, whether enslaved or the emancipation of the slaves is submitted to only in so far ‘chattel slavery in the old form could not be kept up. but although the freedman is no longer considered the property of the individual master, he is considered the slave of society, and all independent state legislation will share the tendency to make him such. the ordinances abolishing slavery passed by the conventions under the pressure of circumstances will not be looked upon as barring the establishment of a new form of servitude. 93 id.; see also id. at 136: before the abolition of slavery, and before the war, it was the policy of slaveholders to make a free negro as despicable a creature and as uncomfortable as possible. they did not want a free negro about at all. they considered it an injury to the slave, as it undoubtedly was, creating discontent among the slaves. the consequences were that there was always an intense prejudice against the free negro. now, very suddenly, all have become free negroes; and that was not calculated to allay that prejudice. 94 dred scott, 60 u.s. at 404–05 (emphasis added), cited in, civil rights cases, 109 u.s. at 32 (harlan, j. dissent). no. 1:245] from status to agency 269 free.95 the nation had categorized free black persons as civil slaves—as described in dred scott—and the thirteenth amendment served to eradicate both chattel and civil slavery, and the badges and incidents thereof.96 as a result, harlan declared that congress possessed authority under the thirteenth amendment to prohibit discrimination in public accommodations.97 harlan’s dissent in the civil rights cases attracted praise from many quarters, including black leaders, notable republicans, and newspaper editors.98 numerous newspapers actually recommended him for the united states 95 id. at 33. to be sure, justice harlan did not limit the thirteenth amendment to the protection of solely black persons, but extended its purview to all races and ethnicities. id. 96 see id. (“these are the circumstances under which the thirteenth amendment was proposed for adoption. they are now recalled only that we may better understand what was in the minds of the people when that amendment was being considered, and what were the mischiefs to be remedied, and the grievances to be redressed.”). 97 id. at 36. harlan evolved on this question of civil rights, however, based upon the categorization of rights during that period. nineteenth century thinkers divided rights into civil, political, and social. przybyszewski, supra note 11, at 81–82. civil rights represented “at a minimum personal liberty and the right to hold property, make contracts, and testify in court.” id. political rights included voting rights, and rights to jury service and public office. id. social rights included the disabilities of prohibiting the mixing of races in school, marriage, social settings, etc. id.; c.f. du bois, supra note 92, at 190 (“the negro must have civil rights as a citizen; he must eventually have political rights like every other citizen of the united states. and while social rights could not be a matter of legislation, they, on the other hand, must not be denied through legislation, but remain a matter of free individual choice.”). by the time of his dissent in the civil rights cases, harlan expanded the category of civil rights to include integration in public accommodations. przybyszewski, supra note 11, at 84. according to this analysis, the personal liberty of black and white persons to mix together on public accommodations was a matter of civil rights, not social rights. id. at 97. yet, this conception of rights also constrained harlan. harlan decided against school integration, thus reflecting a belief that interracial public education did not implicate civil rights, but social rights and equality. id. at 99. in addition, harlan agreed in pace v. alabama, 106 u.s. 583 (1883), that states may prohibit interracial, extramarital sex. przybyszewski, supra note 11, at 110. 98 yarbrough, supra note 81, at 147–48. 270 columbia journal of race and law [vol. 7:2 presidency based upon the dissent.99 however, justice harlan was not the only jurist to depict this dual system of chattel and civil slavery. in united states v. rhodes,100 supreme court justice noah swayne, riding circuit on the occasion, ruled that the civil rights act of 1866 was constitutional under the thirteenth amendment. in describing the “state of things” and “mischiefs” the thirteenth amendment was designed to remedy, justice swayne linked chattel slavery with civil slavery.101 in particular, he depicted that slaves and free black persons were treated similarly during the antebellum period: in georgia, by an act of 1829, no person is permitted to teach a slave, a negro, or a free person of color to read or write. so in virginia, by a statute of 1830, meetings of free negroes to learn reading or writing are unlawful, and subject them to corporal punishment; and it is unlawful for [w]hite persons to assemble with free negroes or slaves to teach them to read or write. the prohibitory act of the legislature of alabama, passed at the session 1831-2, relative to the instruction to be given to the slaves or free colored population, or exhortation, or preaching to them, or any mischievous influence attempted to be exerted over them, is sufficiently penal. laws of similar import are presumed to exist in other slaveholding states…102 swayne declared that the “shadow” of slavery fell upon free black persons as they suffered many of the same degradations as slaves, and their capacity for free existence was as hopeless 99 id. 100 27 f. cas. 785 (c.c.d. ky (1867)) (no. 16,151). 101 id. at 794. 102 id. no. 1:245] from status to agency 271 as the slaves’ because of the “status” the slave states had affixed upon them.103 likewise, an antebellum jurist approvingly depicted this system of civil slavery. in bryan v. walton, the court reviewed whether a free black person had the legal capacity to convey property.104 the court ruled that slaves who had been manumitted in georgia did not have such rights as well as other basic freedoms.105 the reasoning of the court, excerpted at length, demonstrates the depth of civil slavery in the united states and the status of free black persons: the [b]lack man in this state, may have the power of volition. he may go and come, without a domestic master to control his movements; but to be civilly and politically free, to be the peer and equal of the [w]hite man—to enjoy the offices, trusts and privileges our institutions confer on the [w]hite man, is not now, never has been, and never will be, the condition of this degraded race. the [b]lacks were introduced into [the state], as a race of pagan slaves. the prejudice, if it can be called so, of caste, is unconquerable. it was so at the beginning. it has come down to our day. the suspicion of taint even, sinks the subject of it below the common level…. [an african] is not and cannot become a citizen under our constitution and laws. he resides among us, and yet is a stranger. a native even, and yet not a citizen. though not a slave, yet is he not free. protected by the law, yet enjoying none of the immunities of freedom. though not a condition of chattelhood, yet constantly exposed to it. 103 id. (emphasis added). 104 bryan v. walton, 14 ga. 185 (ga. 1853). 105 id. at 188–90, 205. 272 columbia journal of race and law [vol. 7:2 he is associated with the slave in this state, in some of the humiliating incidents of his degradation… the fallacy of it is, its assumption that the manumission of the negro, which signifies nothing but exemption from involuntary service . . . imparts ipso facto, all the rights, privileges and immunities which are incident to freedom, among the free [w]hite inhabitants of this country. and in this distinction i find myself fully sustained by the roman law. their freemen were subdivided into freeborn . . . and freedmen … so of the ancient villains among the saxons. the lord might acquit his own title; but no man could be made free, in a civil sense, without the act and consent of the whole body.106 given this belief about the status of freed and enslaved persons in the antebellum united states, it is not surprising that harlan’s interpretation of the thirteenth amendment frames the provision not only as a shield against forced labor, but also as a sword against subordinated status. postbellum republicans characterized the distinction between chattel and civil slavery as one between the “body of slavery” and the “spirit of slavery.”107 abolishing chattel slavery did not eradicate the spirit of slavery, the “problem” republicans identified as the sentiment that black persons belonged in a servitude status.108 106 id. at 202–04; c.f. orlando patterson, slavery and social death: a comparative study 296 (1982) (“enslavement, slavery, and manumission are not merely related events; they are one and the same process in different phases”). racial attitudes could serve to infuse all aspects of this process. id. 107 brandwein, supra note 61, at 43–45. 108 id. at 43–45. no. 1:245] from status to agency 273 black abolitionist theodore wright echoed the republicans’ linkage of chattel and civil slavery by similarly coining this shared status as the “very spirit of slavery”: the prejudice which exists against the colored man, the freeman, is like the atmosphere everywhere felt by him.” though it was true, wright acknowledged, that the ‘free’ colored men of the north were not whipped nor “liable to have their wives and infants torn from them[,] ... [s]ir, still we are slaves—everywhere we feel the chain galling us . . . . this spirit [of prejudice] is withering all our hopes, and oft times causes the colored parent as he looks upon his child, to wish he had never been born.” . . . “[t]his influence cuts us off from every thing; it follows us up from childhood to manhood; it excludes us from all stations of profit, usefulness and honor; takes away from us all motive for pressing forward in enterprises, useful and important to the world and to ourselves.109 notwithstanding these antebellum and postbellum voices calling for an interpretation of the thirteenth amendment that would abolish civil as well as chattel slavery, bradley’s opinion in the civil rights cases denied recognition of them in supreme court doctrine. furthermore, the court missed a prime opportunity to resurrect these voices in the 1968 jones v. a.h. mayer case,110 as the court did not invoke the badges and incidents of civil slavery as described by harlan in his civil rights cases dissent. unlike the court’s adoption of justice holmes’ lochner111 dissent and justice harlan’s plessy dissent, the court failed to adequately restore the vision that the thirteenth amendment serves to abolish civil slavery and its very animating spirit. 109 david brion davis, inhuman bondage: the rise and fall of slavery in the new world 48–49 (2006). 110 jones v. a.h. mayer, 392 u.s. 409 (1968). 111 lochner v. new york, 198 u.s. 45 (1905) (holmes, j. dissenting). 274 columbia journal of race and law [vol. 7:2 4. canonizing justice harlan’s civil rights cases dissent it is beyond cavil that the present-day court may resurrect harlan’s interpretation of the thirteenth amendment. as the court has stated, past cases may be overruled when facts in society are seen so differently that a prior rule no longer merits justification.112 this analysis is particularly appropriate when prior decisions failed to perceive circumstances that would impose obligations on society to rectify wrongs, especially wrongs that rise to the level of national controversies.113 clearly, justice bradley’s majority opinion in the civil rights cases constituted a decision that inaccurately perceived the facts upon which its foundation was laid. contrary to bradley’s findings, free black persons did not enjoy “all the essential rights of life, liberty, and property the same as [w]hite citizens,” and their “personal status” suffered invasion because of those abridgments.114 likewise, systemic race and color discrimination constituted badges of slavery115 because civil slavery and chattel slavery—the debasement of black persons—caused the inferior status occupied by black persons. moreover, the conditions warranting the launch of a dissent into the judicial canon coalesce to support such an enshrinement for harlan’s civil rights cases dissent, as they did for the lochner and plessy dissents.116 although not completely agreed upon, those conditions warranting enshrinement include the esteem of the dissenting justice; the extent to which the judicial philosophy underlying the dissent 112 planned parenthood of southeastern pennsylvania v. casey, 505 u.s. 833, 855 (1992). 113 id. at 861–64. 114 civil rights cases, 109 u.s. at 25. 115 id. 116 id. no. 1:245] from status to agency 275 matches that of the successor generation; and the issue that the dissent contests, particularly when the issue pits a justice against society or a subjugated group against dominant forces.117 observers champion justice harlan as one of the supreme court’s preeminent jurists. although his civil rights cases dissent was widely acclaimed when it was rendered, his judicial philosophy reflects a late-twentieth century conception of racism and the horrors of slavery due to his description of the spirit of slavery and the linkage between chattel and civil slavery. finally, harlan’s dissent definitively pitted him against a large swath of society, especially when reconstruction ended and jim crow became the norm for society. his dissent also reflected the plight of free black persons against societal forces that desired—and succeeded— in maintaining subordination. therefore, harlan’s observations that all black persons suffered civil and chattel slavery warrants the interpretation that the thirteenth amendment should be construed to ameliorate this subordinate status. it is important to portray the different manifestations of this status as it existed in antebellum and postbellum sociological and historical analysis. such a portrayal will lay a foundation for identifying the types of measures that could alter the subordinate status inherited from chattel and civil slavery. iii. status: stigma, station, and stratification as justice harlan described, black persons in the united states before and after the civil war, whether enslaved or “free,” occupied an inferior status in society that may be transformed by reliance upon the thirteenth amendment.118 understanding the different facets of this status is important for comprehending the “slavery” and 117 richard primus, canon, anti–canon, and judicial dissent, 48 duke l. j. 243, 270–75 (1998). 118 civil rights cases, 109 u.s. at 32–33. 276 columbia journal of race and law [vol. 7:2 “involuntary servitude” that the amendment chiefly sought to remedy and transform. although one may posit several dimensions of the inferior status occupied by black persons in the antebellum and postbellum periods, three notable dimensions predominate in well-considered studies of slavery and civil subordination during those periods. as this part will demonstrate, the inferior status of black persons in the nineteenth century manifested predominantly through the stigma against black persons, the station of black persons (within a paternalistic unit, rather than the general station in society at large), and the labor stratification forced upon enslaved and free black persons. sociological and historical studies provide ample evidence of these three dimensions underpinning the inferior status of black persons in the nineteenth century. a. stigma against black persons stigma is characterized as “a set of negative and often unfair beliefs that a society or group of people have about something.”119 in nineteenth century united states society, the stigma attached to black persons may be fairly comprehended as beliefs that they were animals and subhumans. this dehumanization did not embody an exclusion of slaves from human identity; rather, it comprised the debasement of slaves such that society did not extend respect and dignity to black persons.120 the stigma against slaves traverses world history.121 slaves were dishonored, which manifested in part as a psychological condition because they were subject to the complete power of their owners and did not have an 119 stigma definition, merriam–webster, http://www.merriam– webster.com/dictionary/stigma [https://perma.cc/4nnl-5zeg]. 120 david brion davis, the problem of slavery in the age of emancipation 17 (2014). 121 see patterson, supra note 106. no. 1:245] from status to agency 277 independent social existence.122 indeed, some owners acquired slaves not for purposes of service or commodity production, such as slaves in the ancient islamic world.123 this phenomenon indicates the extent to which slavery exists to psychologically instill honor on slaveholders and dishonor on slaves.124 in these respects, the united states southern slave society was in a class by itself because even freedom did not remove african american from the bottom social class.125 they were essentially slaves without masters.126 although aristotle likened slaves to domestic animals and beasts, theorizing that slaves were inherently born to perform base labor for free persons,127 there existed a spectrum of slave systems in world history. some afforded slaves myriad forms of protections and rights, but those in the southern united states “were victims of one of the most oppressive slave systems ever known in terms of the rate of manumission, racial discrimination, and psychological oppression.”128 united states racial slavery widely distinguished black slaves and their descendants as a depressed caste distinct from non-slave groups.129 after 1815, united states slavery closed off pathways to manumission, further degrading and dehumanizing slaves and free black persons.130 by the nineteenth century, many southerners believed that the slaves were descendants of ham, who was 122 id. at 10. 123 id. at 11. 124 id. 125 id. at 257–58. 126 id. historian ira berlin popularly coined this phrase in his work detailing the subjugation of free black persons in the south. see ira berlin, slaves without masters: the free negro in the antebellum south (1974). 127 davis, supra note 109, at 32–34. 128 id. at 36; see also eugene d. genovese, the world the slaveholders made: two essays in interpretation 6–7 (1988) (all systems of oppression produce psychological effects of inferiority in members of the lower caste.). 129 davis, supra note 109, at 3. 130 id. 278 columbia journal of race and law [vol. 7:2 condemned in the bible to foster generations of “slaves of the slaves,” that is, the lowest of slaves.131 the process of dehumanizing black persons resulted from a systematic endeavor to animalize slaves.132 former slaves expressed how they were treated as brutes and domesticated animals such as horses and dogs, and interviews with former slaves consistently depicted the assessment that slave masters identified them as “four-legged chattel.”133 a study of slavery in 1829 likewise found that slaveholders did not regard slaves as humans but as “working animals,” where the terms used for cattle, such as “stock,” “breeders,” and other like characterizations, revealed their similar treatment.134 freed black persons testified that these animalistic characterizations continued into the jim crow era.135 importantly, the historical evidence generally finds that anti-black racism emerged from the system of slavery, rather than preceding the institution.136 these concepts of animalization and dehumanization are chronicled in various ways. in one conception, the choice of designating black persons rather than indentured white servants for entrenched, permanent slavery rested upon several factors, including the attitude that africans were “innately inferior.”137 general society considered slaves to be indolent so as to lower their regard and preserve their labor for others who reaped the benefits.138 during the civil war, 131 id. at 64–68; see also id. at 62 (although medieval arabs and persians enslaved white persons, they associated “the most degrading forms of labor with [b]lack slaves,” especially those slaves from lower sub– saharan africa.). 132 id.; davis, supra note 120, at 9. 133 id. at 9, 10 (citations omitted). 134 id. at 7–8 (citations omitted). 135 id. at 12. 136 id. at 28–35. some historical figures expressed racial prejudice before the advent of the transatlantic slave system, but praise for black persons existed in equal, if not greater, measure. id. at 29–30. 137 mark m. smith, debating slavery: economy and society in the antebellum american south 3 (1998). 138 id. at 45. no. 1:245] from status to agency 279 it was common for union soldiers to write home about their feelings of repulsion towards black persons, variously referring to them as “vermin,” “animals,” and individuals who will never amount “to be anybody.”139 as described previously, this stigma extended to free black persons. societal forces compelled educated, middleclass black persons in the north to stay within their caste position.140 in the nineteenth century, less wealthy white citizens viewed any labor performed by slaves or black persons as work not fit for white people.141 south carolina politician john c. calhoun admitted to john quincy adams: “[o]ne of the major benefits of racial slavery was its effect on lower-class whites, who could now take pride in their skin color and feel equal to the wealthiest and most powerful [w]hites.”142 thus, in calhoun’s eyes, slavery defused class conflict among white citizens because it was such an extreme instance of inequality, helping to make other relationships seem relatively equal.143 of course, those who believed in the inferiority of black persons did not hesitate to express their beliefs in writing. one nineteenth century author believed that black persons, whether free or enslaved, were barbarians.144 as already 139 leon f. litwack, been in the storm so long 128–32 (1979). black soldiers did not escape the civil slavery lodged upon other black persons. during the civil war, black soldiers did not obtain the same pay and benefits as white soldiers. id. at 79–83. free black soldiers were subject to “badges of inferiority” and “civic subordination” that they had experienced in the antebellum united states, such as segregation, questionable combat status, denial of officer commissions, and lower pay than white soldiers. steven hahn, a nation under our feet: black political struggles in the rural south from slavery to the great migration 94–95 (2003). 140 davis, supra note 109, at 49. 141 id. at 177. 142 id. 143 id. 144 thomas r. r. cobb, an historical sketch of slavery (1858), reprinted in the law of freedom and bondage: a casebook 3 (paul finkelman, 1986). he continued his diatribe, stating that civilization requires a “laboring class,” who farm and tend to other “menial” duties at 280 columbia journal of race and law [vol. 7:2 reviewed, the jurist in bryan v. walton believed that the act of manumission did not afford any rights for the freed slave.145 the freedman occupied the same caste as the slave, and the freedman could not enjoy the freedom, rights, and privileges accorded to free white persons in the polity, as the nation’s free persons were divided between “freeborn” and “freedmen.”146 the scope of slavery’s stigmatizing effects is portrayed by the differing generations of black slaves that assumed servitude in the united states. based upon the treatment of the second generation of slaves brought to the united states, the social distance between them and white servants grew.147 notwithstanding the low status of white servants, these servants could aspire to the status of hired labor, unlike black slaves.148 furthermore, the emergence of the white overseer class led to diminishing rights for free black persons because their very existence contrasted with the racist ideology underlying slavery.149 the state lawmakers systematically branded free black persons as inferior and excluded them from the privileges enjoyed by free white individuals.150 due to the advent of the cotton economy in the south, slavery was institutionalized to the extent that children of slaves remained enslaved, unlike other societies in which children of slaves had the opportunity to attain native-hood and other the behest of the “wiser” class. the laboring class typically were slaves. id. at 2. 145 bryan, 14 ga. at 188–90. 146 id. see also hoemann, supra note 33, at 90. (“blacks might be free, but they were not yet part of america, the special status of ‘freedmen’ marking a subtle yet profound difference from average ‘freemen.’ to have meaning, freedom had to exist within a context, in connection with a place, society, and culture.”). 147 ira berlin, generations of captivity: a history of african– american slaves 58–59 (2003). 148 id. 149 id. at 66. 150 id. no. 1:245] from status to agency 281 forms of favored dependency in their former masters’ households.151 this paradigm of inferiority saddled upon black persons was unassailably entrenched during this period of united states history. black abolitionist charles l. reason predicted that emancipation would not erase the “brand” of slavery from black persons, and frederick douglass stated that black persons suffered a stigma of inferiority in the united states.152 both northern and southern societies deemed black persons to be inferior and subordinate, and the “free” northern states relegated them to menial labor, segregated transportation, and segregated schools.153 some politicians equated free black persons with slaves, and deemed all black people lazy and inferior to white people.154 others believed the natural place of black persons was servitude, to be “‘hewers of wood and drawers of water.’”155 because of their skin color and association with slavery, free black workers were stigmatized and limited in their employment opportunities.156 indeed, although it was expected that southern slave society attached a stigma to labor and toil (thus affecting white laborers as well as slaves),157 most republicans in the civil war era presumed that african americans could not advance as free laborers due to the belief that they were “lazy, unenterprising, and lacking in the middle-class, puritan 151 joseph c. miller, slaving as historical process: examples from the ancient mediterranean and the modern atlantic, in slave systems: ancient and modern 96–97 (enrico dal lago & constantina katsari eds., 2008). 152 foner, supra note 51, at 75. 153 eric foner, politics and ideology in the age of civil war 77 (1980). 154 id. at 82–83, 90–91. 155 id. at 105. 156 jacqueline jones, american work: four centuries of black and white labor 142 (1998). 157 eric foner, free soil, free labor, free men: the ideology of the republican party before the civil war 58–59 (1970). 282 columbia journal of race and law [vol. 7:2 qualities of character so essential for economic success.”158 although most black leaders adopted the belief that economic dependence degraded workers, and hence economic independence upon manumission would begat respect,159 other supporters of freedom ultimately believed that african americans would always be socially inferior and poor as a race.160 black north carolinian a.d. lewis dramatically recorded the postbellum aspects of this stigma when he reported an incident to the state’s governor in 1869: please allow me to call your kine attention to a transaction which occured to day between me and dr. a. h. jones…i was in my field at my own work and this jones came by me and drove up to a man’s gate that live close by . . . and ordered my child to come there and open that gate for him ... while there was children in the yard at the same time not more than twenty yards from him and jest because they were [w]hite and mine [b]lack he wood not call them to open the gate .... i spoke gently to him that [the white children] would open the gate .... he got out of his buggy ... and walked nearly hundred yards rite into my field where i was at my own work and double his fist and strick me in the face three times and ... cursed me [as] a dum old radical. ... now governor i wants you to please rite to me how to bring this man to jestus.161 lewis’ letter reflects fortitude, courage, and dignity in demanding that his children be treated the same as white children,162 yet it also reflects the regard in which freed black 158 id. at 297. 159 id. at 299. 160 id. at 299–300. 161 foner, supra note 51, at 122–23. 162 id. at 123. no. 1:245] from status to agency 283 persons were held by former slave owners and other white persons in society at that time. the stigma of dehumanization, animalization, and inferiority led those in the “superior” position to believe that even freed black persons were still subject to their personal control and violent reprobation. b. station of enslaved persons although the foregoing evidence demonstrates the extent of black slaves and free persons stigmatization and dehumanization, some slavery apologists desired to rebut the abolitionist argument that black persons were treated in an inhumane and degrading manner. in part, slave owners and their apologists rebutted abolitionists by acknowledging the humanity of slaves and black persons, but holding nonetheless that they occupied a subordinate station within paternalistic slave owner households. thus, slave owners argued that slaves’ station merited their subjugation and enslavement—that is, in a grand effort to parry the arguments of abolitionists, slaveholders invoked the doctrine of paternalism, whereby they considered slaves as members of their extended family and as overage juveniles.163 under this doctrine, slave masters systematically intervened into all aspects of the slaves’ existence, not just labor performance.164 slaveholders believed in their role of paternalistically mastering enslaved black persons.165 163 berlin, supra note 147, at 204–05; see also przybyszewski, supra note 11, at 18 (noting that some southern legal codes grouped master and slaves under domestic relations law, where spousal and parent child law were located.). 164 berlin, supra note 147, at 204–05. 165 davis, supra note 109, at 106–07; see also jones, supra note 156, at 83 (southern slaveholders viewed themselves as patriarchs over households of dependents, including blacks and whites, of all ages and sexes.); enrico dal lago & constantian katsari, the study of ancient and modern slave systems: setting an agenda for comparison, in slave systems, supra note 151, at 24 (slaveholders justified slavery on the grounds of patriarchal paternalism.). 284 columbia journal of race and law [vol. 7:2 to be sure, southern slaveholder paternalism existed alongside a cruel and disdainful system that maintained the productivity of slaves and rationalized the system to critics.166 nevertheless, in the face of increasing criticism from abolitionists, slaveholders deployed the paternalism ideology to argue that slaves were humans in need of guidance and compulsion for their own benefit and salvation.167 to facilitate this “guidance,” slaveholders considered slaves to be members of their family.168 this paternalistic and patriarchal ethos thrived in the southern plantation system, whose culture dictated that plantation masters rule over extended “households” that relegated slaves to the lower rungs.169 thus, slaveholders conceived the southern slave household as a paternalistic family with participants bound by responsibilities, including the slave “members” of the family.170 this ideology assisted in rendering slaves natally alienated, and thus socially dead.171 they could not claim any formal or cultural relationship with their parents, forebearers, ancestors, lineage, etc.172 elaborating upon this framework, southern planters viewed slavery as a god-ordained hierarchy of unequals, in which society benefitted from the white control of black persons.173 the slaveholders’ ideological system maintained that individuals must temper their instincts and passions for the greater good of society, and thus they believed certain 166 eugene d. genovese, roll, jordan, roll: the world the slaveholders made 4–5 (1976). 167 id. at 73. 168 id. 169 id. at 96, 100–01, 199. 170 jeffrey robert young, domesticating slavery: the master class in georgia and south carolina, 1670–1837 6 (1999). although scholars contrasted such arrangements with the nuclear family purportedly prevailing in the north, other scholars reject this characterization by depicting the presence of a bourgeois domesticity in the south. id. 171 patterson, supra note 106, at 5. 172 id. at 5. in africa and other pre–modern societies, the contrast of being a slave was membership in an ethnic group or familial clan, not freedom. davis, supra note 109, at 28. 173 young, supra note 170, at 2–3. no. 1:245] from status to agency 285 categories of individuals (slaves) succumbed more naturally to ignorance, lust, and passion.174 therefore, slaveholders subordinated slaves due to a concern for the slaves’ “personal welfare and potential for moral growth.”175 the “baptist luminary richard furman, for example, insisted that ‘a master may, in an important sense, be the guardian and even the father of his slaves.’”176 therefore, slaveholders viewed their paternalistic role as critical for the individual development of slaves, and they believed this devaluing of individual freedom was critical to society and more appropriate than the abolitionists’ radical egalitarianism.177 as revealed, the slaveholders desired to plant their paternalistic ideology firmly in the bourgeois individualist and domesticity ethics of that historical period.178 sociologist amy dru stanley situated this ideology in john locke, who wrote that the “‘master of a family’ . . . was a man ‘with all these subordinate relations of wife, children, servants and slaves’ gathered under his domestic rule.”179 pre-modern wage and marriage contracts gave the patriarch of a household dominion over its inhabitants, and the common law subsequently classified the wage contract as a domestic relation.180 united states southerners domesticated slavery by equating master/slave relations to other household relations.181 174 id. at 10. 175 id. 176 id. at 8. 177 id. at 9. 178 id. at 10. 179 stanley, supra note 20, at 8 (citing john locke, second treatise of government 46 (1980)). 180 id. at 10. 181 id. at 24. it is important to stress that “tracing the evolution of a southern proslavery culture and that culture’s influence on sectional relations in the antebellum united states” does not suggest “that the benevolent self–image held by owners led to improved conditions on their plantations. to the contrary, the slaveowners’ world view acted to blind white southerners to the hideous circumstances of plantation slavery.” young, supra note 170, at 15. 286 columbia journal of race and law [vol. 7:2 to be sure, not all observers characterize united states slavery as evincing a paternalistic slave owner ideology. among slave historians, there developed two paradigms about slaveholder interests.182 some historians harp on the slaveholder ideology of paternalism, the notion that slaveholders incorporated slavery to protect black persons from their supposed instincts and habits.183 initially, historians argued that slave owners were pre-capitalist, and thus slavery was economically inefficient.184 as an elaboration upon the slave owner paternalism ideology, early historians maintained that slave owners engaged in slavery because of the cultural badge of honor they received.185 other historians argued that slaveholders operated primarily as capitalists, maximizing the profits from their investments in slaves.186 therefore, they maintain that slavery was highly profitable and economically efficient.187 by demonstrating that slavery was profitable, they undermined other historians’ argument that slavery was predominantly about slaveholders’ commitment to paternalism and patriarchy.188 this debate resulted in a convergence in recent scholarship. southern slave ideology coalesced around the argument that slaveholder households contained the same predilections as northern households, and a concern for the individual growth of slaves in the southern “family” reflects the contribution of paternalism to this ideology.189 nevertheless, paternalism does not contradict a profit-making ethos, as some forms of paternalism are profitable and result 182 id. at 4–5. 183 id. at 4–5. 184 smith, supra note 137, at 16–17. 185 id. at 16–17. 186 young, supra note 170, at 4–5. 187 smith, supra note 137, at 24–25. 188 robert william fogel & stanley l. engerman, time on the cross: the economics of american negro slavery 71 (1974). 189 young, supra note 170 at 8. no. 1:245] from status to agency 287 in good business.190 indeed, while slaveholders practiced profit-maximization techniques in controlling their plantations, the dual, southern legal system—in which laws existed on the books but states gave the slaveholders control of their plantations and slaves—may account for the paternalistic/pre-bourgeois ethos of the plantation that existed alongside the capitalist features of the system.191 thus, the slave owners’ paternalistic ideology did not bar profit maximization, and it actually reflected the slave owners’ appreciation of “efficiency and productivity.”192 therefore, slavery supporters created this ideology of paternalism, treating slaves as inferior members of their households so as to excuse their subjection of black persons to slavery. this paternalistic ideology afforded this lower station to black persons within plantation households, but it did not obviate the parallel phenomenon of stigmatizing black persons as subhuman and animals. that other inferior members of the slave owner paternalistic household (spouses and children) were not dehumanized and animalized reveals the insincerity of the paternalistic ideology. the conceptions of stigma and paternalistic station existed side-by-side, and their juxtaposition demonstrates the extent to which the paternalistic ideology was a farce. however, the third dimension of societal status regarding slaves and black persons—labor stratification—was all pervading, supported by all sides, and had far-reaching effects before, during, and after slavery. 190 fogel & engerman, supra note 188, at 73. 191 id. at 128–29. 192 smith, supra note 137, at 24–25; see also davis, supra note 109, at 6 (slavery was economically efficient in its organization and structure, basically resembling “factories in the field.”); id. at 180–81 (the united states southern slave system was economically efficient and productive, even to the extent that some freed slaves developed businesses and employed large numbers of slaves.). 288 columbia journal of race and law [vol. 7:2 c. stratification of black persons’ labor 1. background as discussed in previous sections, chattel and civil slavery generated sentiments of scorn that reflected the regard in which black persons were held. this dimension of status worked with other factors to stratify black persons in the lowest rungs of the labor hierarchy.193 this stratification served to distinctly mark black people as inferior to other races and ethnicities.194 as several observers have concluded: jobs are never just jobs; they are social markers of great real and symbolic value. the abolitionist frederick douglass recognized that work matters when he warned his fellow free people of color in 1853: ‘men are not valued in this country, or in any country, for what they are; they are valued for what they can do.’ . . . at stake was not work alone—slaves for example never lacked for jobs—but the legal and social status of workers. the work that people did, and the terms and conditions under 193 c.f., berlin, supra note 147, at 3 (“plantation slavery did not have its origins in a conspiracy to dishonor, shame, brutalize, or otherwise reduce [b]lack people’s standing on some perverse scale of humanity— although it did all of those at one time or another. slavery’s moral stench cannot mask the design of american captivity: to commandeer the labor of the many to make a few rich and powerful.”). therefore, slavery incites class as much as it did race, the effort of a few to exploit the labor of others through violence so as to obtain a hierarchical position. id. 194 see also david f. schwartz, the thirteenth amendment as a basis for judicial protection of individual rights 203 (march 25, 1975) (unpublished ph.d. dissertation, pennsylvania state university) (on file with davis library, samford university) (gainful work represents a fundamental factor in the development of human potential such that any deprivation of work renders a person a second–class citizen.) no. 1:245] from status to agency 289 which they did it, revealed both their place and their possibilities within american society.195 labor systems define united states civic life by reserving certain jobs for certain races and ethnicities.196 as jones notes, “[a]s a society; we are what we do at work, and we remain the sum of our radically divergent workplaces.”197 slave work was more arduous in some sectors and form of cultivation versus others.198 for example, mining was more burdensome than farming, farming more than manufacturing, manufacturing more than domestic service, cultivating sugar crops more than coffee and rice crops, coffee and rice more than cotton, etc.199 significant differences existed between urban and rural slaves, field and artisan slaves, domestic and agricultural slaves.200 as slave societies developed into a crucial component of the atlantic commercial 195 jones, supra note 156, at 13; see also davis, supra note 109, at 37 (although all slave systems displayed the rights of masters to dispose of their slaves at whim—whether by selling, physically abusing, or killing— “the central quality of a given kind of slavery was usually defined by the nature of the work required…”); ira berlin & phillip d. morgan, labor and the shaping of slave life in the americas, in cultivation & culture: labor and the shaping of slave life in the americas 1–3 (ira berlin & philip d. morgan eds., 1993) (historical scholarship has taken it for granted, but slavery was centrally about work, as it occupied most of the slaves’ time… “the conflict between master and slave took many forms, involving the organization of labor, the pace of work, the division of labor, and the composition of the labor force…the legacy of slavery cannot be understood without a full appreciation of the way in which slaves worked.”); foner, supra note 51, at 50 (slavery was first and foremost a system of labor.); c.f., genovese, supra note 166, at 6 (“as the brazilian sociologist and historian of slavery fernando henrique cardoso observes: ‘freedom in slave society is defined by slavery. therefore, everyone aspired to have slaves, and having them, not to work.’ . . . this [aristocratic] ideal affected every other class in society, including the slaves.’”). 196 jones, supra note 156, at 20. 197 id. 198 berlin & morgan, supra note 195, at 4. 199 id. at 4. 200 davis, supra note 109, at 6–7. 290 columbia journal of race and law [vol. 7:2 trading system, slaveholders increasingly separated themselves from slaves by burgeoning levels of supervision.201 as an initial matter, the united states’ labor stratification system did not inexorably derive from slavery alone, as slave systems or societies throughout history afforded slaves positions of privilege and esteem in their hierarchical labor regime.202 in this regard, united states slavery remains remarkably distinguished from other slave systems in history.203 201 berlin & morgan, supra note 195, at 4. 202 see paul e. lovejoy, transformations in slavery: a history of slavery in africa 8 (2012): [t]he american system of slavery was unique in two respects: the manipulation of race as a means of controlling the slave population, and the extent of the system’s economic rationalization. in the americas, the primary purpose of slave labor was the production of staple commodities – sugar, coffee, tobacco, rice, cotton, gold, and silver – for sale on world markets. furthermore, many features that were common in other slave systems were absent or relatively unimportant in the americas. these included the use of slaves in government, the existence of eunuchs, and the sacrifice of slaves at funerals and other occasions (but not the use of slaves and the descendants of slaves in the military). the similarities and differences are identified to counteract a tendency to perceive slavery as a peculiarly american institution. individual slave systems had their own characteristics. 203 slave systems denote geographic regions that relied upon a pervasive mode of economic production and labor centered on slavery. slave systems encompassed regions that were slave societies, that is, where the dominant form of economic and social life was based upon slavery, which is distinguished from societies with slaves. dal lago, supra note 165, at 4–5. in societies with slaves, slaves were marginal to the dominant process of production. berlin, supra note 147, at 8. in slave societies, slaves were central to the production of a good or commodity, and the growth in international trade of particular goods or commodities transformed regions periodically into slave societies. id. no. 1:245] from status to agency 291 recent historical scholarship has focused upon the slave societies of the atlantic ocean as one integrated whole.204 whereas the atlantic slave system employed slaves in the “entirely novel context” of commercialized activity for the purpose of producing agricultural commodities, most ancient slave systems incorporated slaves into hierarchical households to aggrandize owner status within certain locales.205 most slaves in the atlantic slave system were bonded to a mercantilist, capitalist, transnational economy.206 increasingly, atlantic slavery shifted from domestic artisanry to field hand labor.207 furthermore, in many early historical settings, slaves were often females, employed in domestic servitude, or both.208 as time passed, greek and roman slave systems portray slave owners using slaves in many sectors.209 in ancient greece, owners employed slaves in skilled jobs due to the shortage of free persons willing to do the work.210 204 dal lago, supra note 165, at 6; see also davis, supra note 109, at 141 (united states slavery was part of a larger atlantic slave system.). 205 miller, supra note 151, at 14, 74–79, 81–82, 85–87, 99. caribbean and south/central american slave societies focused on the markets for sugar, molasses, syrup, and rum, and the extent of those operations entailed 95 percent of african slaves transported during the transatlantic slave trade ending up in those regions. davis, supra note 109, at 103–04. slaves employed in sugar cultivation and production, particularly those outside of the united states, developed into highly– skilled and semi–skilled labor. id. at 108. 206 davis, supra note 109, at 3. 207 dal lago, supra note 165, at 6. this phenomenon did not hold for all parts of the atlantic slave system. “the absence of competitors, [w]hite or [b]lack, allowed slaves in the caribbean opportunities that hardly existed on the mainland. in antigua, some slaves served as physicians to [w]hite and [b]lack alike.” berlin & morgan, supra note 195, at 19. 208 walter scheidel, the comparative economics of slavery in the greco-roman world, in slave systems, supra note 151, at 106–07. 209 id. at 106–07. however, note that the data on the use of slaves in agriculture is controversial. id. at 106–07. 210 tracy rihll, slavery and technology in pre–industrial contexts, in slave systems, supra note 151, at 130–31, 133; see also davis, supra note 109, at 51 (in world history, elites have always distinguished 292 columbia journal of race and law [vol. 7:2 furthermore, slaves in the greek empire worked in agriculture because free citizens disdained manual labor.211 in addition, greek slaves worked as nurses, prostitutes, urban artisans, domestic servants, and miners.212 as a result, slaves employed in this work had homes that were indistinguishable from those of free persons, typically worked in manufacturing rather than agriculture, lived separately from their masters, were paid in cash, had to accumulate their own food, and had to pay for their own housing.213 in his seminal work on slavery, sociologist orlando patterson detailed these patterns in slave systems around the world. slaves in the near east, greco-roman economies, islamic societies, and medieval europe engaged in all manner of economic activity, and sometimes economically outperformed free persons.214 slaves earned fortunes as bankers and agents, and were skilled artisans.215 slaves exercised authority in military, administrative, executive and themselves from the darkened field workers, and the upper classes in western society deemed physical labor “as a chore best left to slaves.”). 211 davis, supra note 109, at 41–42. this resulted from the ancient greeks’ general outlook on manual labor: [i]n the classical greek tradition, the slavish person would be ideally suited to perform all the menial, unpleasant, and degrading labor that made the civilized state possible, providing ‘citizens’ with the freedom and leisure needed for the so–called good life…the bible also repeatedly links the lowliest forms of labor with the ‘curse’ of slavery. davis, supra note 109, at 56. 212 id. at 41–42. 213 rihll, supra note 210, at 130–31, 133. both the mediterranean and the united states southern slave systems exhibited a paternalistic type of slave management, which was tied to the slave owners’ structure of their families. dal lago, supra note 165, at 23. however, the south tied paternalism to the maximization of production and the racial exploitation of their slaves, unlike their mediterranean counterparts. id. at 23. 214 patterson, supra note 106, at 184. 215 id. indeed, some slaves owned other slaves amassed through their fortune. no. 1:245] from status to agency 293 even political roles in several empires throughout history.216 for example, in certain islamic empires, slaves exerted tremendous cultural influence and were important in the realms of administration, religion, artwork, music, poetry, grammar, and education.217 this phenomenon existed in other slave systems. madanu-bel-usur, a babylonian slave over 2,500 years ago, was a privileged slave who owned real and personal property, conducted lending operations, and won a lawsuit against an insolvent debtor.218 other privileged slaves exist in history, such as the egyptian mamluk elite military slaves, and the chinese and byzantine chief eunuchs.219 there were also prince-like slaves in roman emperor households and palatine eunuch slaves in china as well.220 although mesopotamian civilizations employed slaves in heavy manual labor and new kingdom egyptians used slaves in heavy labor work, slaves in the babylonian period worked as artisans, agents, tenant farmers, merchants, bankers, and domestic servants.221 brazilian slaves worked in many skilled occupations, assumed the status of their owners, either wealthy or poor, and some even owned their own slaves and property.222 216 id. at 299. 217 id. at 180. lest one argues otherwise, slavery also existed in africa. in the early stages of slavery in africa, it was primarily a social institution designed to enhance the status of slaveholders. lovejoy, supra note 202, at 12–13. when people were enslaved during muslim invasions, slaveholders predominantly used slaves for domestic, government, and military purposes, although some were used in production. id. at 16–17, 20. based upon the atlantic slave trade with europeans and americans, slavery in africa transformed into an agricultural based system. id. at 20–21. indeed, africans enslaved africans of other ethnic groups to sell to transatlantic slave traders for hard work and toil in the new world. davis, supra note 109, at 12–13. 218 id. at 27. 219 id. at 29. 220 patterson, supra note 106, at 51. 221 id. at 38–40. 222 id. at 118–19. unlike other slave societies, the nineteenth century united states south did not permit slaves to marry, own property, or testify in court. id. at 194. 294 columbia journal of race and law [vol. 7:2 2. stratification in the early united states slave system slavery in the united states focused upon employing slaves in agricultural labor, with minimal deployment in manufacturing.223 in the americas, patterson discerned that owners used slaves primarily as agricultural labor.224 in mining and plantation slave systems, which comprised most of the slave societies in the americas, slaves were primarily units of production. 225 in the united states southern slave society, the most low-paying, semi-skilled work was known as “n***** work,” and white workers occupied higher-skilled work.226 owners employed most slaves as field hands in this system, and this affected the status of all black persons.227 223 scheidel, supra note 208, at 106–07. one does not mean to suggest that slaves in the greco–roman world were employed in a variety of occupations whereas slaves in the atlantic system were employed only in forced, agricultural labor. scores of slaves were employed in agriculture in both systems, and slaves in the atlantic were employed in some industrial occupations. dal lago, supra note 165, at 15–16. nevertheless, because ancient free persons disdained manual labor, the mediterranean slave system extensively used slaves in manufacturing labor, and slaves lived in a semi–free status. this condition existed in few antebellum industries in the united states south. rihll, supra note 210, at 18, 130–31. 224 patterson, supra note 106, at 159. 225 id. at 198–99. to be sure, owners put slaves to many uses, whether for “prestige, political, administrative, ritual, sexual, marital, or economic reasons.” id. at 173. nevertheless, the condition of slaves on plantations, which contained the vast majority of slaves, differed from those of slaves who labored as tenant farmers or with small family farmers. id. at 174. in some american slave societies, slaves used as tenant farmers achieved a significant degree of social and economic independence. id. at 199. nevertheless, although slaves manufactured goods for their own use, the marketing of such goods to other slaves and persons was more limited in north america than the caribbean. berlin & morgan, supra note 195, at 32–33. in north america, non–slave persons controlled the markets for such goods. id. 226 patterson, supra note 106, at 257–59, 260. 227 id. although slaveholders created reward structures that permitted slaves to rise in the hierarchy of slave life, slave societies constrained them from attaining the highest opportunities, such as leaders of great businesses, or faculty in universities. fogel & engerman, supra note 188, at 148–49, 152–53. no. 1:245] from status to agency 295 unlike other slave societies, slavery in the americas thrived in a closed system—where the rates of manumission were low and freed slaves remained a separate group even after manumission—and thus, the conditions for effortintensive/pain-incentivized slavery existed, that is, slavery in agricultural labor rather than more care-intensive work.228 indeed, forced labor was not typically used in highlyskilled/high-care work due to the risk of substantial loss from sabotage.229 initially, there was no racial division of work in the colonies as black and white workers worked side-by-side in the hard toil of forming new colonies.230 eventually, however, white english colonists determined that the toil of new world manual work was degrading and thus unsuitable for englishman.231 therefore, the colonists invoked the institution of black slavery as a humanitarian cause to free englishman from the toil of manual labor.232 as the colonies developed, the british agricultural economies in the united states became labor-intensive systems, and white workers in the colonies hoped to “outgrow” this manual labor.233 the harshness of cultivating land in the early colonies led the more prominent planters to employ and exploit workers for this 228 scheidel, supra note 208, at 107–15. due to the advent of the cotton economy in the south, slavery was institutionalized to the extent that children of slaves remained slaves, unlike other societies in which children of slaves had the opportunity to attain native–hood and other forms of dependency in their masters’ households. miller, supra note 151, at 96–97. when we discard the idea that slaves have to be bought or sold, then we realize that the thetes within the ancient greek system, who were landless, low–class inhabitants, and african–americans during the jim crow era, were also slaves, particularly “semi–manumitted slaves, no longer always under the direct control of a master but very much at the mercy of most genuinely free persons in the society.” orlando patterson, slavery, gender, and work in the pre–modern world and early greece: a cross–cultural analysis, in slave systems, supra note 151, at 63–64. 229 rihll, supra note 210, at 128. 230 jones, supra note 156, at 68–71, 76–77. 231 id. at 78. becoming an englishman was a status to which all white colonists could attain. 232 id. at 78. 233 id. at 24–25. 296 columbia journal of race and law [vol. 7:2 labor.234 the distinction of escaping from such toil transformed into a status for those settlers who enjoyed that position.235 therefore, black workers occupied a vulnerable status in the seventeenth century; by that time, they could not even oversee white indentured servants.236 the other colonists viewed them as strangers in the new world, and whereas other bonded labor could hope to escape that status and become “english,” black workers, because of their skin color, could not achieve that distinction.237 white, indentured servants in virginia and maryland eventually compelled planters to refrain from assigning them tasks in the field.238 white servants could eventually enjoy the status of “englishness”—a status associated with “[w]hite skin and a european lineage”—but black workers long-retained their “strangeness.”239 3. stratification in the plantation slave system as the second generation of slaves were brought to the united states, which corresponded with the advent of plantation agriculture,240 slaveholders assigned them the most burdensome tasks and largely denied them experience in more skilled work.241 this second generation of slaves trafficked from africa derived from the interior of the 234 id. at 30–31. 235 id. at 30–31. 236 jones, supra note 156, at 38–39. 237 id. at 38–39. 238 id. at 42–43. 239 id. at 53. 240 the prototype for american plantations slavery was the southern italian and sicilian latifundia, who were slaves that worked in large–scale agriculture at the height of the roman empire. davis, supra note 109, at 44. nevertheless, “[n]othing in the roman works was really like the racial slavery that came to pervade[] the western hemisphere. romans imported . . . highly educated and professional slaves from greece and northern africa.” id. at 46. 241 berlin, supra note 147, at 58. no. 1:245] from status to agency 297 continent.242 they were not as skilled and diverse as the coastal africans who were conversant with the atlantic economy, as the second generation were primarily farmers.243 furthermore, this second generation of plantation slaves did not benefit from the decline in white servants.244 plantation labor systems operated under a more complex hierarchical regime, where the owners relied upon overseers and supervisors to manage the slave force.245 the managerial hierarchies permitted some slaves to occupy lowlevel supervisory positions, such as drivers and foremen, and artisan positions.246 primarily, however, the slaves worked longer hours, for more days of the week and months of the year, under closer supervision by overseers, and with less food and rations than english workers and white servants.247 slaveholders developed their paternalistic ideology during this period in the eighteenth century with the rise of plantation economies, and the combination of this ideology with the plantation economy resulted in more work for the slaves and a greater distance between the owners and slaves as they hired overseers and stewards to manage the slave force.248 this dichotomy increasingly manifested in the southern slave societies, as the presence of a black slave force elevated all white owners, supervisors, and laborers.249 this dichotomy between black and white labor had completely taken hold by the late eighteenth century: by the time of the revolution, [w]hite elites— and especially the great planters of virginia— had developed a theory of [b]lack inferiority that 242 id. at 60. 243 id. at 60. 244 id. at 61–62. 245 berlin & morgan, supra note 195, at 16–17. 246 id. at 16–17. 247 berlin, supra note 147, at 61–62. 248 id. at 63. 249 jones, supra note 156, at 79. 298 columbia journal of race and law [vol. 7:2 sought to justify the relegation of africans and their descendants to lifelong menial toil. in large measure this theory grew out of the fact that slaves were forced to perform amounts and kinds of labor from which [w]hite men and women were increasingly exempt. because slaves were forced to work at a grueling pace, often under dangerous conditions, [w]hites concluded that, in the words of one virginia planter, [b]lack people in general ‘are by nature cut out for hard labour and fatigue….’ in the parlance of slaveowners, [b]lack men and women resembled animals (“poor creatures”); they were devoid of “reason,” vulnerable to the arbitrary whims and wish of their masters, and condemned (along with their children) to perpetual bondage.250 at this point, the wholesale division of labor between black and white labor increasingly crystallized. white people developed a social ideology that certain types of tasks were suitable for black slaves, such as tapping pine trees for pitch and tar, irrigating rice fields, and planting and harvesting rice, cotton, and indigo.251 although southern planters did not limit field cultivation to slaves, white laborers did not perform certain tasks associated with what was termed “n***** crops,” and they had the ability to escape the cultivation of such crops altogether.252 to be sure, while plantation slaves worked as field hands, domestic servants, and artisans, some urban slaves occupied positions in manufacturing and other skilled 250 id. at 82–83. james henry hammond, the governor of south carolina in 1858, stated in his infamous “cotton is king” speech that black slaves were created to serve as menial laborers for the higher white caste, who were created to lead societal progress. davis, supra note 109, at 189. 251 jones, supra note 156, at 89. the rice cultivation and indigo production performed by slaves from north carolina to florida was tedious, backbreaking work that one commenter remarked was “‘only fit for slaves.’” berlin, supra note 147, at 70–71. nevertheless, due to the absence of owners from the large rice and indigo plantations in the carolinas, georgia, and florida, some slaves rose to influential driver or foremen positions on the plantations. id. at 76–77. 252 jones, supra note 156, at 208. no. 1:245] from status to agency 299 jobs.253 the latter phenomenon undermined the racial ideology that black individuals were inferior in intelligence and skills, but eventually pressures resulted in increasing relegation of skilled jobs to poor white workers.254 this division of labor was not limited to the southern united states or to slaves. in the north, slave labor initially competed with free laborers for artisan positions in urban areas.255 northern states never became complete slave societies. until their acts of manumission, they were societies with slaves.256 thus, they never developed the large plantation system of slave labor prominent in the south, and slave labor in the north never achieved centrality in the production system as it had in the south.257 nevertheless, because of their skin color and association with slavery, free black workers were stigmatized and limited in their employment opportunities.258 in addition, the fear of civil disorder from black workers committed northern and southern whites to keeping black workers in menial jobs.259 253 id. at 218. in eighteenth century louisiana, slaves enjoyed a measure of independence, including the ability to possess property and produce goods and commodities. berlin, supra note 147, at 42–43. indeed, before the antebellum period, creole slaves could marry, acquire property, eventually own slaves themselves, and possess some independence. id. at 33, 41. 254 jones, supra note 156, at 218. of course, economic conditions would prevent such relegation from occurring entirely to the detriment of black workers. “[w]ithin the realm of manual and skilled work, there was no single southern notion of ‘[b]lack man’s work’ or ‘[b]lack woman’s work,’ but rather a fluid definition of the appropriate work for certain groups, depending on the relative supply of [b]lack and [w]hite, slave and free, skilled and unskilled workers in any particular time and place.” id. at 212; see also berlin & morgan, supra note 195, at 3 (slave labor manifested in many forms, depending upon the type of crops farmed, the crafts needed by the owner, the locale of the plantation, the free workforce in the locale, etc.). 255 berlin, supra note 147, at 82. 256 id. at 87–88. for the distinction between slave societies and societies with slaves, see lovejoy, supra note 202. 257 berlin, supra note 147, at 87–88. 258 jones, supra note 156, at 142. 259 id. at 140. 300 columbia journal of race and law [vol. 7:2 for example, free black workers in shipyards did not have labor mobility and thus occupied lower-paying positions.260 4. the effect of cotton on stratification the stratification of labor sharpened during the cotton era in the southern united states.261 plantation slavery expanded exponentially in the united states southern interior during the antebellum period due to the atlantic economy’s thirst for the commodity.262 the second middle passage denotes the epoch when large numbers of slaves were transferred to the interior, lower south to work on cotton plantations or produce sugar on louisiana plantations.263 yet, it was the dominance of cotton production in the lower south that transformed the region into a slave society.264 due to the explosive increase in the cotton economy, more than 835,000 slaves shifted from the northeastern parts of the south to the central and southwestern states from 1790 to 1860.265 the 260 id. at 167. 261 the united states slave system in the nineteenth century rested largely upon the global economic system of cotton, which spurred cultivation in the south and manufacture and sale in the rest of the world. davis, supra note 109, at 184. 262 berlin, supra note 147, at 17. 263 id. at 17, 162. united states slavery was divided into four distinct societies: the north; the chesapeake bay and virginia piedmont; the carolina and georgia lowcountry; and spanish florida and french louisiana. davis, supra note 109, at 125–26. 264 berlin, supra note 147, at 166. sugar cultivation in the louisiana slave society generated a complex mix of labor skills among the slaves due to the complexity of producing the staple. id. at 184–85. eventually, the destruction of the staple crop economy in louisiana transformed it from a slave society into a society with slaves, with slaves gaining increasing autonomy to produce goods and commodities for their own exploitation and migrating into more skilled trades such as blacksmithing, masonry, coopery, roofing, etc. id. at 88–90, 95. as a result, new orleans produced middle and upper class black persons. du bois, supra note 92, at 154–55. nevertheless, the sugar industry was a minor crop in the united states, utilizing no more than ten percent of the united states slave force. therefore, it did not have a large effect on the development of united states slavery, unlike other colonies and nations in the western hemisphere. fogel & engerman, supra note 188, at 20–21. 265 patterson, supra note 106, at 165. no. 1:245] from status to agency 301 explosive increase of staple-producing plantations transformed the lower south into slave societies, the seaboard south into societies with slaves, and the north into free societies.266 the “overall percentage of slaves engaged in skilled labor declined during the period 1790 to 1860, a development that reflected the expansion of cotton cultivation.”267 the states in the lower south attracted slave labor from the upper south, where skill levels were high, and placed the slaves in field tasks on cotton plantations.268 cotton farming engendered extremely hard, tedious work for slaves on the lower south plantations, as owners drove slaves hard year round to cultivate cotton.269 cotton plantations utilized few skilled abilities because it involved simple processing operations.270 cotton plantations employed the slaves in gang labor managed by white overseers rather than black drivers or foreman, which increased the brutality exercised upon slaves.271 this arrangement also pushed black persons further down the labor hierarchy: 266 berlin, supra note 147, at 17. initially, the north was a society with slaves rather than a slave society, as its economy never depended upon slave labor. davis, supra note 109, at 128–29. as a result, slaves were more integrated in northern society and frequently worked alongside their owners, unlike the planter/owner slave societies in the united states south. id. at 128–29. virginia maintained a slave hierarchy, with more privileged native–born slaves employed in skilled work. id. at 133. slaves in urban charleston mastered many skills and trades, exercised de facto independence in some instances, and even served as soldiers early in the history of the colony. id. at 136–37. 267 jones, supra note 156, at 195–96. although certain rice estates in the south carolina and georgia low country employed specialized tasks for slaves, this was the exception. 268 id. at 195–96. 269 berlin, supra note 147, at 176–78. 270 berlin & morgan, supra note 195, at 18. indeed, freedmen in south carolina did not want to cultivate the “slave crop,” cotton. foner, supra note 51, at 51. 271 berlin, supra note 147, at 176–78. slave owners generally arranged their plantations by the task system, where slaves accomplished 302 columbia journal of race and law [vol. 7:2 the removal of [b]lack men—and occasionally women—from the managerial ranks in the cotton south reduced opportunities for slaves to rise within the plantation hierarchy. the occupational ladder was further truncated with the elimination of many of the skills that slaves had once practiced on the tobacco and rice plantations of the seaboard, for cotton cultivation demanded little artisanal labor. field work required equipment no more sophisticated than a hoe or a simple plow. once ginned and baled, cotton had only to be covered with a tarpaulin to protect it from the weather. unlike tobacco, it required no barrels, hence no coopers; no barns and storage sheds, hence no carpenters and sawyers; no drays or wagons, hence no wagoners and carriage makers. unlike rice, cotton required none of the complex hydraulic systems, fans, or mills, hence no engineers, machinists, and millers. the spread of cotton culture devastated the ranks of the slave artisanry, reducing many tradesmen and women to field hands and depriving them of the opportunity to pass their skills on to their children. for slave artisans, whose identity was in their work, the march south was doubly destructive.272 certain tasks, or the gang system, where slaves worked in defined groups under close supervision by overseers. berlin & morgan, supra, note 195, at 14–15. the gang system occasioned little room for individual initiatives by the slaves, as it demanded labor during all working hours. id. at 14–15. the type of commodity produced by slaves generally determined the type of organization—gang or task—employed by the slave owner. id. however, even slaveholders who deployed the task system in the carolinas extended the task to encompass day–long work that prevented slaves from producing their own goods or commodities. berlin, supra note 147, at 311. 272 berlin, supra note 147 at 178; but see davis, supra note 109, at 139 (because of the task system employed on the lowcountry rice and indigo plantations in south carolina and georgia, slaves were able to complete their slave work early in a day and tend to growing their own gardens or no. 1:245] from status to agency 303 increasingly, domestic labor on cotton plantations decreased, as slaveholders deployed more male slaves to the field to maximize cultivation of the staple crop.273 the trend towards non-specialization and deterioration of skill levels resulted in ninety-five to ninety-seven percent engagement of slaves in field cultivation by 1860.274 the hierarchies occasioned by cotton work influenced all levels of work throughout united states society. although southern manufacturers were initially receptive to exploiting black labor in the antebellum period,275 from the outset northern manufacturers during this period did not employ black laborers.276 in the antebellum period, northern societies excluded black workers from vocational education and jobtraining and limited them to service and manual labor jobs.277 northern public officials enacted policies that restricted other projects. this freedom enabled slaves to accumulate property, although it was untitled). 273 berlin, supra note 147, at 6, 179. as the lower south slave society matured, some slaves assumed domestic positions in plantation houses. id. at 200. these positions became hereditary, as did the field positions, and thus there existed a division of labor with the southern slave society. id. nonetheless, the slave on the average nineteenth century plantation worked in field labor. davis, supra note 109, at 198–99. 274 jones, supra note 156, at 195–96. in certain respects, larger plantations occasioned the use of slaves in more skilled activities. berlin & morgan, supra, note 195, at 19. 275 although southern slaves occupied some skilled and lower managerial positions during the antebellum era, the vast majority were deployed in low level, laboring positions as compared to free white laborers. fogel & engerman, supra note 188, at 38–39. more than seventy percent of slaves worked as laborers on plantations or in other settings, while less than ten percent of any given workforce worked in managerial, artisan, or semiskilled positions. id. at 38–39. 276 jones, supra note 156, at 224; see also davis, supra note 109, at 153–54 (in the antebellum north, states barred free black persons from most occupations and professions, and northern rural slaves lacked the skills to work in but the most menial labor.). 277 jones, supra note 156, at 258–59; see also foner, supra note 153, at 77 (both northern and southern societies deemed black persons to be inferior and subordinate, and the “free” northern states relegated them to menial labor, segregated transportation, and segregated schools.). 304 columbia journal of race and law [vol. 7:2 factory machine operative jobs to white laborers.278 even free, affluent black families saw the erosion of job opportunities during the antebellum period.279 by the civil war, black persons represented only two percent of the northern population.280 during the antebellum period, the northern white elite constituted wealthy merchants, speculators, physicians, lawyers, and manufacturers.281 contrastingly, the northern black elite constituted “barbers, preachers, skilled tradesmen, petty proprietors, teachers, and waiters.”282 because the cotton boom increasingly engaged all slave labor to the exclusion of non-agricultural work, southern manufacturers eventually mirrored their northern counterparts and trended toward all-white factories.283 white manufacturers saw a political advantage in hiring white workers over slaves or free black workers, even to their economic detriment.284 that is, the prospects of idle white citizens, and skilled, knowledgeable black slaves or workers, resulted in the relegation of black individuals to lower-skilled work.285 in the antebellum north and south, politicians prevented black workers from occupying artisan and trade positions in response to their white laborer constituents’ demands.286 the stance of the white population resulted from a belief that black workers should not have particular types of jobs, rather than the belief that black workers were mentally incapable of performing them.287 in addition, due to 278 jones, supra note 156, at 258–59. 279 id. at 213. 280 id. at 248. 281 id. at 257. 282 id. 283 id. at 232. 284 jones, supra note 156, at 220–21. 285 id. 286 id. at 271–72. 287 id. at 272; cf. bryan, 14 ga. at 189–203 (the freed black person cannot testify against a white person, cannot vote, cannot possess firearms, cannot preach without a special license, cannot be employed as a compounder of drugs, cannot teach other black persons to read or write, and no. 1:245] from status to agency 305 the fear of an increasingly free black population, upper south societies in the nineteenth century treated free black persons as “slaves without masters,” basically by limiting their work opportunities and subjecting them to other dehumanizing conditions.288 5. stratification after the civil war the postbellum period did not see any drastic improvement in labor stratification.289 upon emancipation, freed persons held high aspirations for themselves and their families, and possessed new conceptions about working and living as independent persons.290 however, most southern whites remained beholden to an ideology of black inferiority and racial solidarity, summed up by the cincinnati enquirer’s claim that “‘[s]lavery is dead, the negro is not, there is the misfortune.’”291 southerners adopted a strategy implemented by northerners seventy-five years prior: disavow any notion that black workers possess artisanal skill so as to eliminate freed black workers as competitors with white artisans and factory workers, and relegate black workers to agricultural and domestic work.292 this new ideology and mythology emerged as the jim crow stance that black workers could not mentally handle skilled jobs.293 cannot work to set a printing press or in “any other labor requiring a knowledge of reading or writing.”). 288 davis, supra note 109, at 204; see also fogel & engerman, supra note 188, at 36–37 (whereas the northern united states and other colonies engaged in gradual emancipation that prevented the most deleterious consequences of abolition, the united states south hardened during the antebellum years. southern states placed limits on voluntary manumission and prevented freedmen from possessing firearms, traveling freely, owning land, and publicly assembling.). 289 during the war, most military officials believed that emancipated slaves should remain in agricultural labor, and they enacted policies to ensure this development. foner, supra note 51, at 58–59. 290 litwack, supra note 139, at 222–23. 291 id. 292 jones, supra note 156, at 221–22. 293 id. at 222. 306 columbia journal of race and law [vol. 7:2 thus, southern planter paternalism during the postbellum period manifested in the sentiment that freed persons could never hold esteemed positions such as legislators, judges, or teachers, and should thus be confined to work as farmers, handymen, or domestic servants for their own “protection.”294 to accomplish this objective, southerners instituted the laws and regulations known as the black codes, which defined freed persons as agricultural laborers, criminalized their failure to work in a job, and prohibited them from working in any alternative occupation.295 these codes had a most pernicious effect: rather than expedite the slave’s transition to freedom or help him to realize his aspirations, the black codes embodied in law the widely held assumption that he existed largely for the purpose of raising crops for a [w]hite employer. although the ex-slave ceased to be the property of a master, he could not aspire to become his own master. no law stated the proposition quite that bluntly but the provisions breathed that spirit in ways that could hardly be misunderstood. if a freedman decided that agricultural labor was not his special calling, the law often left him with no practical alternative. to discourage those who aspired to be artisans, mechanics, or shopkeepers, or who already held such positions, the south carolina code, for example, prohibited a [b]lack person from entering any employment except agricultural labor or domestic service unless he obtained a special license and a certification from a local judge of his ‘skill and fitness’ and ‘good moral character.’ this provision, of course, threatened to undermine the 294 litwack, supra note 139, at 366; see also du bois, supra note 92, at 166–67 (after the civil war, southern white citizens largely believe that the natural condition of black persons was slavery, and the south sought to enforce this doctrine by establishing the black codes.). 295 litwack, supra note 139, at 366. no. 1:245] from status to agency 307 position of the old free negro class which had once nearly dominated the skilled trades in places like charleston. with unconcealed intent, the mississippi law simply required special licenses of any [b]lack wishing to engage in ‘irregular or job work.’ . . . by adopting harsh vagrancy laws and restricting non-agricultural employment, the [w]hite south clearly intended to stem the much-feared drift of freedmen toward the cities and to underscore their status as landless agricultural laborers.296 although the civil rights act of 1866 and other federal laws proscribed the black codes, southern states enforced the codes where freedmen’s bureau officials declined to enforce their authority.297 in any event, the promulgation of the black codes revealed that the southern ruling class desired to keep lack workers in agricultural and domestic work, and it largely achieved this end through economic coercion and contract enforcement.298 the union army and, eventually, the freedmen’s bureau adopted the belief that freed persons were best used as agricultural laborers, and these officials 296 id. at 367–68; see also du bois, supra note 92, at 167–68 (the black codes severely limited the efforts of black persons to work, as evidenced by the south carolina law requiring black persons to pay for a special license to work in an occupation other than agriculture and domestic service.); hamilton, supra note 31, at 53–54 (the postbellum black codes in the south were used to keep freed african–americans in agricultural labor, and required them to obtain licenses for non–farm occupations.). 297 litwack, supra note 139, at 370–71. 298 id. a florida legislature committee reported in 1865 that the emancipated slave occupied no higher strata than free black persons before the war. du bois, supra note 92, at 139. therefore, the legislature could discriminate against the emancipated freedmen in the same manner as that afforded previously–free black persons. id. 308 columbia journal of race and law [vol. 7:2 endeavored to keep freed slaves on their former plantations as contract laborers.299 while slaveholders employed some black workers in a diversity of occupations before the civil war, the systematic efforts to maintain labor stratification resulted in freed slaves and their descendants occupying “largely menial agricultural” work after the war.300 “urban skilled [b]lacks (descended from antebellum free men of color) gradually disappeared from southern cities.”301 “during the last decade of the nineteenth century, in the cotton south fewer than fifteen out of every hundred [b]lack persons worked at something other than farming (most of them were sharecroppers), unskilled labor, or domestic service.”302 these three dimensions of the status occasioned by civil slavery—stigma, station, and stratification—exhibit the extent to which civil slavery differed little from chattel slavery. all black persons merited protection under the thirteenth amendment, and this understanding should have indicated the policies and programs that would be necessary to abolish the spirit of slavery. indeed, congress undertook some early efforts pursuant to the thirteenth amendment’s enforcement clause to address the status of black persons, but those policies and programs proved ineffective against entrenched societal forces. the failure of these programs reveals that decision makers misunderstood the nature of the status burdening black persons. 299 litwack, supra note 139, at 376–77, 379–81, 386; cf. du bois, supra note 92, at 188 (the thirteenth amendment did not abolish slavery because most of the freed black persons worked on the same plantations doing the same work after ratification.). 300 jones, supra note 156, at 242; cf. foner, supra note 157, at 299 (frederick douglass “deplored [the former slaves’] tendency to remain in menial occupations.”). 301 jones, supra note 156, at 242. 302 id. no. 1:245] from status to agency 309 iv. transforming status into agency the focus upon entrenched dimensions of status reveals the challenges that postbellum lawmakers, lawyers, and other stakeholders faced. supreme court doctrine eventually rejected a thirteenth amendment interpretation that would have encompassed civil as well as chattel slavery, and by extension the three dimensions of status suffered by black persons. nevertheless, early postbellum decision makers attempted to address the legacy of civil slavery by promulgating measures to alter the status of black persons. as reflected in justice bradley’s majority opinion in the civil rights cases,303 the device most decision makers championed as the tool to transform the status of freed persons pursuant to § 2 of the thirteenth amendment was the right to contract. reliance upon the right to contract to transform the status of black persons emanated from two sociological concepts that were prevalent during that historical period: free labor ideology and the legal sociological theory that modern society represented a movement from status to contract. proponents of these concepts considered the right to contract as a sufficient means to alter the status of freed persons. later developments demonstrate that contract rights served as a mere component of agency, and a proper focus on agency would have revealed the shortcomings in relying only upon the right to contract as the measure to achieve transformation under the thirteenth amendment. with this proper focus, decisionmakers could have discerned the barriers preventing the transformation, including the institutional discrimination factors that can be remedied by the disparate impact claim. 303 109 u.s. 3 (1883). 310 columbia journal of race and law [vol. 7:2 a. the right to contract as the hallmark of free labor in the antebellum period, progenitors of the republican party and eventually members of the party itself championed free labor ideology as the primary challenge to the south’s slave economy. free labor ideology permeated all factions of the republican party before the civil war, and it encapsulated the idea that laborers, artisans, and farmers could progressively work their way up to entrepreneurship and economic independence.304 the republican free labor ideology celebrated the dignity of work and its capacity to provide for advancement of the working individual.305 this concept of free labor extended to all manner of workers, including businessmen, craftsmen, mechanics, etc.306 the goal animating free labor ideology was economic independence, or the state of moving from the wage-earning ranks to independent autonomy.307 the ideology conceived that lifelong dependence on wage labor rendered an individual “as unfree as the southern slave.”308 free labor ideology enjoyed a “strong cultural authenticity” in the north, as its citizens believed that committed individuals could economically advance to become business owners.309 the ideology’s proponents believed that the failure to advance out of the wage-earning ranks or to 304 foner, supra note 153, at 100–01, 104; see also randall m. miller, the freedmen’s bureau and reconstruction: an overview, in the freedmen’s bureau and reconstruction: reconsiderations xix (paul a. cimbala & randall m. miller, eds. 1999) (“republicans generally subscribed to a free–labor ideology rooted in the belief that economic mobility ensured social and republican order. by their reckoning, personal habits of industry, frugality, integrity, and self–discipline would lead to independence and prosperity for both individuals and society. the key was unfettered access to opportunity, which in an agricultural and artisanal world meant land and tools.”). 305 foner, supra note 157, at 12–14. 306 id. at 15. 307 id. at 16–17. 308 id. at 17. 309 id. at 33. no. 1:245] from status to agency 311 escape poverty reflected a moral failing in the individual caught in those conditions.310 under free labor ideology, “the interests of labor and capital were identical, because equality of opportunity in american society generated a social mobility which assured that today’s laborer would be tomorrow’s capitalist.”311 although free labor ideology increasingly justified the privileges of the business class in the late nineteenth century, antebellum republicans championed it as the proper framework to achieve economic advancement for laborers.312 critically, free labor ideology buttressed the republican party’s primary argument against the south’s slave system. the republicans contrasted free labor with slave labor, as free labor provided the opportunity for laborers to rise to entrepreneurship and artisanship, and slavery represented stagnation.313 because of their adherence to free labor ideology, northern republicans viewed the south’s slave society as “alien” due to its lack of prospects for economic advancement.314 the republicans despised the labor situation in the south, as it was characterized by unmotivated slaves and poor, degraded, socially immobile white laborers.315 as a result, the north deemed the south economically and ethically deficient,316 as the “moral qualities 310 foner, supra note 157, at 23–24. some republicans believed that social factors marred the advancement of some individuals, but they heeded free labor ideology. id. at 25–26. 311 id. at 20. 312 id. at 38; cf. john c. rodrigue, the freedmen’s bureau and wage labor in the louisiana sugar region, in freedmen’s bureau, supra note 304, at 199 (“the triumph of wage labor both coincided with and reflected the transformation of northern free–labor ideology—from a doctrine that championed the ownership of productive property as the bedrock of economic independence to one that celebrated the freedom of the laborer to sell his or her labor for the best possible terms on a free and open market.”). 313 foner, supra note 51, at 28–29. 314 foner, supra note 157, at 40. 315 id. at 50; see also davis, supra note 109, at 131 (northern white workers believed that slavery degraded most forms of labor.). 316 foner, supra note 157, at 50. 312 columbia journal of race and law [vol. 7:2 of free labor, hard work, frugality, and interest in economic advancement seemed absent in the south.”317 as expected, the north’s victory in the civil war sustained the advance of free labor ideology in the postbellum era, especially as it pertained to formerly enslaved persons. according to one commentator, slavery depressed inclinations for individual initiative and degraded labor, resulting in immoral habits and unwarranted wealth disparities.318 in the immediate postbellum era, free labor proponents endeavored to transform the south into a free-labor economy.319 free labor adherents argued that free black individuals had the right to compete in society and deserved protection of rights attendant to such competition, such as the right to own property and the right to access the courts.320 essentially, free labor proponents desired economic advancement for black persons.321 the desired policies reflected a goal to establish free labor ideology as the economic and social standard in the south, and to give freed persons the same opportunities to 317 id.; see also davis, supra note 109, at 56 (“[i]t was not until writers in the enlightenment and early nineteenth century began to ennoble free labor . . . that it became possible to launch a popular attack on slavery as a backward and inhuman institution that stigmatized and dishonored the very essence of labor. it was precisely such free labor, as the nineteenth and twentieth centuries progressed, that became the idealized and supposedly voluntary route—as an alternative to aristocratic birth—to both individual success and respected identity”). 318 miller, supra note 304, at xix. 319 id. 320 foner, supra note 157, at 296; see also du bois, supra note 92, at 189 (“the abolition of slavery meant not simply abolition of legal ownership of the slave; it meant the uplift of slaves and their eventual incorporation into the body civil, politic, and social, of the united states.”). 321 foner, supra note 157, at 296; cf. berlin & morgan, supra note 195, at 45 (“with emancipation, freed people throughout the americas made it clear that they wanted, above all, access to land and other material resources that they could work in family and communal groups. they wanted no part in gang labor or in any system that limited their control over what they could grow, what they could rear, and what they could sell. they understood these rights—the rights to work on their own and to control their own resources—as coincident with their independence. in short, they desired most to build upon the independent economic activity in which they had engaged as slaves.”). no. 1:245] from status to agency 313 progress and obtain equality with those in the higher classes of society.322 even some moderate republicans supported civil equality for freed persons due to the violation of the free labor ideology in the south.323 in any event, free labor ideology suffused societal imagination as the proper paradigm for economic advancement. justice john marshall harlan, whose importance to the interpretation of the thirteenth amendment was discussed previously, was a staunch adherent to free labor ideology and applied its precepts to black persons, arguing that the thirteenth amendment frees every person to work freely for themselves and their race.324 as a member of the presbyterian church in the u.s.a.’s standing committee on freedmen, harlan issued a report preaching free labor principles for the freed black citizens: “educate him, not for a civil slave, but to give him an equal chance with every other man—laborer with laborer, artisan with artisan, doctor with doctor, teacher with teacher, preacher with preacher, and leader with leader.”325 as the historical record provides, the primary tool used to advance free labor for freed persons was the right to contract. notwithstanding the contested aspects of the amendment reflected in the congressional record before its ratification, after ratification congress passed the civil rights act of 1866 and the freedmen’s bureau act to demonstrate that the amendment protected the civil rights of african americans.326 the civil rights act of 1866 constituted congress’ first attempt to give meaning to the thirteenth amendment.327 radical republicans had an expansive view of the fundamental rights promised by the amendment and encompassed in the bill, and moderate 322 foner, supra note 51, at 234–35. 323 id. at 242. 324 przybyszewski, supra note 11, at 68–70. 325 id. at 103 (emphasis added). notably, however, harlan’s report supported the social separation of the races. 326 vorenberg, supra note 28, at 233–34. 327 foner, supra note 51, at 244. 314 columbia journal of race and law [vol. 7:2 republicans at least believed that fundamental rights included the right to contract and own property.328 therefore, the debates leading to the passage of the civil rights act of 1866—which relied on the thirteenth amendment for authority—enumerated the right to contract as a fundamental freedom that directly contrasted with slavery.329 as discerned, the civil rights act of 1866 constituted an attempt to enshrine free labor principles by establishing labor contract freedom as a tool engendering a rise into the yeoman/artisan class. the evidence that free labor ideology morphed into freedom of contract is even more pronounced when examining the policies of the freedmen’s bureau after the civil war. during the war itself, the union army established a new order in the south that linked freedom to the right to contract.330 as time progressed after the war, freedmen’s bureau agents abandoned the idea of free labor as land ownership by freed african americans and imparted the policy of contract rights as the embodiment of free labor and the “foundation of civilization,” which was reflected in the establishment of labor contracts between freed persons and their former slave owners.331 as a result, the freedmen’s bureau officers equated freedom with contract, instilling in freed persons the mutual duties and freedom inherent in contractual relations.332 free labor ideology underpinned the freedmen’s bureau’s activities as its agents attempted to balance freed persons’ aspirations with the needs of plantation farmers.333 328 id. 329 stanley, supra note 20, at 55–56. 330 id. at 35. 331 foner, supra note 51, at 164. 332 stanley, supra note 20, at 36. 333 james d. schmidt, “a full–fledged government of men”: freedmen’s bureau labor policy in south carolina, 1865–1868, in freedmen’s bureau, supra note 304, at 219. as many ideologies go, however, its meaning was not clear: no. 1:245] from status to agency 315 the agents were stark proponents of the ideology as a reflection of the “natural order,” and viewed a consensus of interests between black workers and former slave owners as something that would inure to their mutual benefit.334 however, as a foreshadowing of the shortcomings underlying sole reliance upon the free labor and freedom of contract ideology, the bureau encountered substantial problems with implementing freedom of contract principles.335 the bureau’s agents immediately realized that slavery’s legacy cast a pall over relations between black workers and former slave owners.336 freedmen and planters were mired in by the time of the civil war . . . those assumptions had come to mean many things for many different groups of people. for some, free labor implied the ownership of productive property, either in the form of land or in the form of a small shop or other petty proprietorship. for others, it meant simple self–ownership, which implied freedom from the will of another and the ability to sell one’s labor power freely in the marketplace. for still others, as historians of labor law have uncovered in recent years, free labor implied a set of legal relationships that regulated both the marketplace and the shop floor. id. 334 rodrigue, supra note 312, at 200. the lead bureau official in virginia viewed transforming freedmen into free laborers as his most important duty, and this transformation revolved around establishing free contracts between freed persons and former slave owners. see mary j. farmer, because they are women”: gender and the virginia freedmen’s bureau’s “war on dependency”, in freedmen’s bureau, supra note 304, at 164–65. 335 the slave codes initiated the backlash by eradicating slaves’ self–ownership, whereby they could not consent to form a contract. stanley, supra note 20, at 18. 336 rodrigue, supra note 312, at 200; see also stanley, supra note 20, at 39–41 (some freed people equated emancipation with the right to contract and sell their labor for wages. however, freedmen’s bureau officials also discovered that some freed persons loathed returning to work for their former masters; they desired the economic independence of owning their own land to employ their labor.). 316 columbia journal of race and law [vol. 7:2 conflict over the everyday meaning of free labor ideology, revealing “that both former slaveholders and freedmen possessed a more realistic understanding of the challenges they faced: namely, that quickly surmounting slavery’s legacy was a hopeless task and that little common interest existed between former slaves and former slaveholders.”337 ultimately, free labor’s commitment to social advancement 337 rodrigue, supra note 312, at 200. one example presented the free persons’ conception in the context of louisiana sugar cultivation: freedmen offered a contrasting vision of free labor and of the freedmen's bureau. familiar with the dictates of sugar cultivation, they admitted the need for centralized plantation routine but envisioned a free–labor system that ensured them a degree of autonomy within the realm of sugar production. freedmen willingly submitted to the discipline that sugar production required as long as they were paid for their labor, enjoyed access to the plantation’s economic resources, and were not driven as slaves. although freedmen had to continue working in gangs under [w]hite overseers, they demanded a voice in such matters as the conditions of labor and insisted that overseers accord them the respect due free people. in reinterpreting northern free–labor ideology to fit their own experiences and in building on the communitarian ethos that had provided them psychological and spiritual sustenance under slavery, freedmen did not see free labor and sugar production as incompatible. the two could, and must, coexist. nor did freedmen view wage labor as a repressive form of social relations or as ‘wage slavery.’ rather, they included it within their larger definition of freedom. in trying to realize their visions of free labor and of freedom itself, freedmen would continually look to the freedmen's bureau as an indispensable ally. thus, a sort of quasi–free–labor system had existed in southern louisiana for more than two years by the time the civil war ended in the spring of 1865. id. at 198. no. 1:245] from status to agency 317 under civil equality did not prove sufficient to counter the history of slavery and subordinated status, thus negating equality of opportunity for black persons.338 b. transforming the status of dependence to the freedom of contract the idea that freedom of contract represented the apotheosis of transforming status to freedom was central not only to free labor ideology, but also to another societal creed that commanded allegiance when the thirteenth amendment, the civil rights act of 1866, and the freedmen’s bureau act were first construed by the supreme court. this societal framework arose in a seminal work first published in the united states in 1864 by legal sociologist sir henry sumner maine.339 maine set out to trace the sociological history of law from the ancient period to his contemporary context. in doing so, maine argued that pre-modern legal rules were established on the basis of one’s status in a family controlled by a patriarchal head.340 as described by maine, the eldest male figure exercised supreme control over a household’s inhabitants, including spouses, offspring, younger siblings’ families, and even slaves; maine posited that this patriarchal theory of control existed in all pre-modern societies.341 furthermore, because of this arrangement the units of legal authority and regulation were not individuals but rather families, and the supreme male authority in the household held ultimate legal power and responsibility for a family’s members.342 as legal rules developed in different areas (such as contracts, property, and testamentary succession), maine 338 foner, supra note 157, at 299–300. 339 maine, supra note 19. 340 id. at 118–33. 341 id. at 119, 158. 342 id. at 121–22, 129–30. 318 columbia journal of race and law [vol. 7:2 declared that the primary situs of legal regulation evolved from family dependency to individual obligation.343 hence, pre-modern law affixed rights and duties upon a person based on that person’s status in a family, but “progressive societies” latched legal abilities upon the agreements individuals undertook to form relationships and assume obligations.344 therefore, maine concluded in an oft-quoted phrase for which he is well-known, “the movement of the progressive societies has hitherto been a movement from status to contract.”345 notably, several observers have detailed maine’s influence among united states lawmakers and legal scholars during the nineteenth century.346 modern day sociologist amy dru stanley elaborated upon this same concept and expressly applied it to slavery in the united states.347 citing sociologist william graham sumner (a contemporary of maine’s), stanley argues that a 343 id. at 162–63. 344 id. at 163. 345 maine, supra note 19, at 165. 346 for example, scholar david m. rabban remarked that united states legal scholars henry adams, william gardiner hammond, melville bigelow, and james thayer expressly used maine’s work as the foundation for their scholarship, and other scholars recognized that maine’s thematic organization and foundation in ancient law framed oliver wendell holmes jr.’s work. see david m. rabban, american legal thought in transatlantic context, 1870–1914, clio themis, no. 9, 2015, 8, 9, http://www.cliothemis.com/american–legal–thought–in [https://perma.cc/j2qn-mm7s]. roscoe pound argued that maine’s work increasingly influenced united states legal minds after 1870, when his historical method of legal sociology gained provenance among law students. see lewis a. grossman, ‘from savigny through sir henry maine’: roscoe pound’s flawed portrait of james coolidge carter’s historical jurisprudence 22–3, american university, wcl research paper no. 2009– 21, http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1001& context=fac_works_papers [https://perma.cc/x9wa-vkuu]. another scholar remarked that maine had a transforming influence on nineteenth century intellectual life and ancient law was one of two works that had the most influence on english jurisprudence during that period. alan diamond, introduction, the victorian achievement of sir henry maine: a centennial appraisal 10 (alan diamond, ed., 2006). 347 stanley, supra note 20. no. 1:245] from status to agency 319 social structure based upon contractual relations conceivably eradicates dominion over individuals and dependence “based on status, law, or custom.”348 based upon this understanding, societies naturally progressed from the status of bondage to a state of freedom embodied in contract.349 as already discussed, in postbellum society the idea of contract symbolized individual rights and freedom.350 therefore, the right to contract married individual liberty and obligation, and “marked the difference between freedom and coercion.”351 observers in the nineteenth century possessed a detailed understanding of the supposed connection between freedom and contract. according to john locke’s formulation, the right to contract represented the freedom to consent, a bedrock value that contrasts with the strictures of enslavement.352 the right to contract rests upon the value of self-ownership: only individuals with the freedom to transact possessed free will.353 thus, contracts embody the concepts of consent and self-ownership, and free laborers consented to an employer having a right to the employees’ labor.354 contrarily, the lack of consent and contract demarcated the slave system.355 legal scholars held that the freedom to contract set the “boundary between slavery and freedom.”356 abolitionist sentiments long held that slavery violated the tenets of contract rights and autonomy.357 in an 348 id. at 1. 349 id. at 2. 350 id. 351 id. 352 id. at 6. 353 stanley, supra note 20, at 3. 354 id. at 8–9. 355 id. at 9. 356 id. at 17. educators even portrayed the link between freedom and contract via the crafting of stories emphasizing those themes. id. at 38 (describing john freeman and his family, a story illustrating a man’s “transition from bondage to freedom” via “three scenes of contract”). 357 id. at 18; cf. foner, supra note 153, at 64–65 (the abolitionists equated freedom with self–ownership, which was an individualistic definition of freedom that avoided the dictates of class relations that the 320 columbia journal of race and law [vol. 7:2 effort to distinguish free laborers from slaves, abolitionists separated wage labor from dominion and deemed it the essence of freedom due to its connection to self-ownership.358 furthermore, although southerners domesticated slavery by equating master-slave relations to other household relations, abolitionists maintained that contract and free consent underlie true households of integrity.359 indeed, late nineteenth century legal and economic treatises described the wage contract in antislavery language.360 a notable treatise stated that “‘liberty of contract’ was the ‘badge of a freeman,’” and other treatises equated emancipation with freedom of contract.361 labor movement employed in its definition). in countering abolitionist claims that slavery entailed domination over a slave’s soul, slaveholders agreed with the sentiment that slavery merely manifested the absence of a contract. stanley, supra note 20, at 19. yet, slave owners could not parry the abolitionists’ argument that slavery represented total dominion over soul and body: the bodily images reflect how seriously abolitionists took the corporeal dimension of the formal right of self proprietorship, which they regarded as the only secure guarantee of personal autonomy. the obverse of the slave whose person was dismembered, through punishment and as a commodity, was the autonomous individual whose body was inviolate. freedom, as douglass curtly defined it, was ‘appropriating my own body to my use.’ . . . [b]y representing free individuals (in contrast to slaves) as unmistakably embodied bearers of rights, abolitionists rendered self ownership concrete while suggesting a new moral and ideological framework for thinking about the vicissitudes of human bodies. by their lights, soul and body were inseverable; spirit could not be emancipated where flesh was bound. stanley, supra note 20, at 22–23. 358 id. at 20–21. 359 id. at 24. 360 id. at 74. 361 id. no. 1:245] from status to agency 321 therefore, emancipation launched the nation’s transition from a system of status reflecting dependence and dominion, in particular slave bondage, to a system of freedom based upon contract.362 emancipation resulted in the disavowal of the slaveholders’ paternalistic ideology, replacing the dominion inherent in the paternalistic household that incorporated slavery with a market system in which contract and consent regarding the commodity of labor governed relations.363 labor relations no longer fell within a description of the domestic sphere.364 362 id. at 4. as forcefully argued by stanley: the overarching theme of the labor history written in this era was the transition from bondage to free contract. the ascendance of contract allegedly had transformed labor from a relation of personal dominion and dependence to a commodity exchange in which buyers and sellers were formally equal and free, yet also mutually dependent on one other. no longer was the laborer human property, a commodity possessed by a slave master; rather, the self– owning hireling brought labor—something abstracted from self—into the free market to sell as a commodity in exchange for a wage. by the late nineteenth century, the abolitionist view of wage labor, which constituted the official ideological framework of emancipation, had become a conceptual foundation for the social sciences as well as for the law. id. at 75. 363 stanley, supra note 20, at 76–77. 364 id. unfortunately, stanley convincingly illustrates that this freedom from dominion and dependence in the household hierarchy did not extend to women in general, and freed women in particular. in an effort to forestall this development, freed women sought autonomy over their body and their labor, contrary to the southern ethos that equated slavery with marriage relations. id. at 52–54. sojourner truth trumpeted her desire that freed women obtain their freedom from black men as they had from slaveholders, and francis ellen watkins harper engaged in the same advocacy. id. furthermore, a minority of abolitionists, particularly black women such as watkins harper and harriet jacobs, portrayed abolition as the freeing of enslaved women’s bodies and the right of free women to personal sovereignty and self–ownership over their bodies. id. at 29–34. 322 columbia journal of race and law [vol. 7:2 however, as sociologists, historians, and other expert observers have discerned, freedom of contract avowal failed to engender the hoped-for eradication of domination and dependence. although labor rights supporters acknowledged that antebellum notions considered slaves and laborers as members of a domestic household, the postbellum period’s freedom of contract regime revealed the antagonisms between labor and owners of capital, and the resultant view of labor as a mere commodity input.365 in the decades after the civil war, the prospects for economic independence dimmed as industrialization advanced and the capacities of wage earners to become independent producers retreated.366 free labor principles ideally were well suited for small-scale capitalists, farmers, artisans, and small entrepreneurs.367 the advent of large-scale industrialization and its tampering of economic advancement for the laboring classes eviscerated free labor therefore, “the theory of female self ownership was a vital aspect of abolitionism,” and this recessive strain of abolitionism displayed a firmer commitment to contract freedom. id. at 33–35, 54–55. notwithstanding those efforts, abolitionists largely maintained that abolition would transfer dominion over enslaved women from the slaveholder to her husband. id. at 29. “[u]nlike any other contract, the marriage contract ordained male proprietorship and absolute female dispossession, establishing self ownership as the fundamental right of men alone.” id. at 11. although emancipation occasioned some revisions of the freed persons’ marriage contracts and household relations, which engendered a freedom as important to the freed persons as wage contracts, freed men believed that emancipation gave them the right to exercise sovereignty over their wives, even violently. id. at 44, 48. “the claim of slaveholders was that southern domestic relations were inseparable from slavery, and this legacy endured in the marriages of former slaves.” id. in addition, in an effort to reconcile the conflict between fundamental contract freedom and states’ rights to control domestic relations, congressional members excised marriage rights from the civil rights act of 1866 and only proscribed the incidents of slavery on the basis of race. id. at 57–59. 365 id. at 78–80; see also foner, supra note 51, at 164 (illustrating that transformation of the free labor concept into free contract ideology hid the economic power disparity between freed persons and their former owners). 366 foner, supra note 157, at 33. 367 id. at 316. no. 1:245] from status to agency 323 ideology.368 thus, the foundations for free labor ideology eroded as the economic system industrialized and created the permanent, wage labor paradigm.369 justice harlan recognized these developments during his tenure on the bench. revisionist legal historians, demonstrating that the vilified liberty of contract principles originate in antebellum free labor ideology, acknowledge that harlan’s espousal of free labor appeared in several of his opinions and underlie his understanding of liberty of contract.370 however, harlan blamed corporate figures for the failure of free labor ideology, not the ideology itself.371 he never abandoned free labor ideology in the face of corporate power, which he likened to a new form of slavery.372 368 see id. these circumstances were not foreordained with respect to freed persons, because the linkage between free labor and freedom of contract was contested: if viewed from the perspectives of both free–labor ideology and free–labor law at least three positions emerged. a sizable group of ‘conservatives’ often supported coercive labor law with few restrictions and with little commitment to elements of free–labor ideology that promoted social mobility. additionally, this group more consistently supported state action on the part of employers rather than workers. a small minority of ‘liberals,’ clinging to some version of the free– labor ethic, usually desired a labor system ultimately disciplined by market forces instead of the state. often antagonistic to or unaware of free labor’s legal system, these men more often supported state action on the part of workers than of employers. the ‘moderate’ majority tried to combine the two and saw state control of the labor market as one of the best ways to achieve the ultimate result of social mobility. schmidt, supra note 333, at 221–22. 369 foner, supra note 51, at 28–29. 370 przybyszewski, supra note 11, at 167–70. 371 id. at 175, 182, 184. 372 id.; see also beth, supra note 90, at 194 (highlighting harlan’s “warning against ‘the slavery that would result from aggregations of capital 324 columbia journal of race and law [vol. 7:2 therefore, free labor and free contract principles transformed into the phenomenon of dependent, commodity production, which was not the social advancement path to independence envisioned by free labor ideology.373 late nineteenth century labor law recognized that the forum of labor transformed from a regime incorporated into a dominated domestic sphere into a regime incorporating wage contracts, which, while permitting the freedom to contract one’s labor, evinced domination and control by management over labor.374 the postbellum era failed to forestall an ambiguous emancipation pulled between self-ownership and control by impersonal forces.375 as a result, freedom of contract did not reflect free labor ideology’s union of labor and capital interests.376 in the hands of a few individuals and corporations controlling for their own profit and advantage exclusively, the entire business of the country, including the production and sale of the necessities of life.”). 373 stanley, supra note 20, at 86. 374 id. at 83–84. although social theory and empirical studies in the late nineteenth century demonstrated a contrast between free labor and free contract principles, postbellum scholarship equated wage labor with free contract paradigms. id. at 73. 375 id. at 84. 376 id. at 97. stanley reached a more pointedly devastating conclusion: the wage slave thus stood for the illusions of contract freedom. labor spokesmen agreed with the axiom that the exchange between capitalists and workers was not paternalistic, but purely commercial. but, to their way of thinking, market relations and dependence were not mutually exclusive—if labor was for sale. they emphasized the difference between the domestic dependencies of slavery and subjugation under the wage system. in the households of the old south ‘the proprietor had absolute right over . . . his wife, his children, his slaves,’ but in northern factories the master was the property owner who possessed authority over ‘work, wages, and everything else’ and ‘at whose nod or beck the poor unrequited slave who labors must bow the head and bend the knee in humble suppliance.’ no. 1:245] from status to agency 325 c. from status dependence to effective agency that freedom of contract failed as the predominant measure advanced under the thirteenth amendment to afford self-ownership to freed persons does not disavow the objective of altering the regime of status relations. as explained previously, a legal regime based upon status— whether stigma, station, or stratification—constrains the freedom that persons in the lower strata have to advance in society. nineteenth century legal subjects, however, failed to steer the movement from status into the proper conception of emancipation. rather than construct the movement on the right to contract, building it on what freedom of contract supposedly embodied—the freedom of self-ownership, or rather, agency—provides the proper conception to accomplish the thirteenth amendment’s command to transform status into freedom. importantly, this conception provides space for responding to any barriers to individual agency. the sociological concept of agency refers to the capacity of individuals to act pursuant to their will to shape the social interactions and environment in which they exist.377 attached to such philosophical luminaries as john locke, adam smith, jeremy bentham, and john stuart mill, agency essentially represents a conception of action focused upon individual initiative that frames accounts of personal liberty and advancement.378 although it takes many guises—such as rational choice theory in the economics sphere379 —agency as the point was that there could be no such thing as a pure and simple bargain, a free contract, involving labor. id. at 87. 377 emirbayer & mische, supra note 12, at 965. see also william h. sewell, jr. a theory of structure: duality, agency, and transformation, 98 am. j. soc. 1, 18 (1992). 378 emirbayer & mische, supra note 12, at 965. 379 vincent colapietro, a revised portrait of human agency: a critical engagement with hans joas’ creative appropriation of the 326 columbia journal of race and law [vol. 7:2 a distinct concept and theory in sociology and other social sciences encompasses considerations of individual free choice and autonomy in the pursuit of human action. as conceived, agency seamlessly corresponds to the aspirations underlying the freedom of contract regime espoused by free labor proponents and expositors of the status-to-contract theory. the individualist conception underlying nineteenth century free labor theory and statusto-contract orientation posits capacity to contract as the epitome of autonomy and free will, the necessary condition for individuals to form legal relationships and seek advancement in society. as understood, lack of the capacity to contract constituted a barrier to individual choice and action, and a subjugation of individual initiative to the status one occupied in society. therefore, properly conceived, postbellum nineteenth century proponents of the thirteenth amendment sought to ensure that freed persons possessed the capacity to choose and shape their interactions in society so as to achieve better circumstances. however, the vehicle the proponents chose to encapsulate this free will and autonomy—the freedom to contract—proved to be insufficient for the objective, as explained in the previous section. that the right to contract did not measure up to the task is understandable given another central sociological concept underlying the theory of human action in society. the concept of structure refers to complex social factors or parameters that influence and circumscribe individual human action.380 the prominent sociologist emile durkheim posited one of the early conceptions of structure, when he pragmatic approach, 1 eur. j. pragmatism & am. philo. 1, 6 (2009), http://lnx.journalofpragmatism.eu/wp– content/uploads/2009/12/definitivo2.pdf [https://perma.cc/3naj-neb3] (describing a critique of rational choice theory). 380 jonathan h. turner, a new approach for theoretically integrating micro and macro analysis, in the sage handbook of sociology 406 (craig calhoun et al. eds., 2005). no. 1:245] from status to agency 327 proposed that social facts exert an external coercion over individual action.381 modern theorists describe structure “as the constraining and enabling conditions of action,”382 and such structures may exist as patterns of social relationships, inequalities of social stratification, and internalized values and beliefs.383 not surprisingly, theorists engaged in a social scientific debate whether agency or structure provided the prime account of human action, yet more recent theorists have tended to merge the approaches. scholars situate human action in a contextual realm where structure influences and enables agency, and agency correspondingly transforms structure.384 the primary observation provides that human actors may influence and transform a particular structural factor such that agency is enhanced by the transformation.385 therefore, the endeavor to construe the thirteenth amendment as providing the right to contract was incomplete. freedom of contract was a necessary but insufficient tool to accomplish the objective symbolized by the right to contract in the nineteenth century, which is to give individuals appropriate agency to pursue their interests and advance in society. conceiving the proper goal as the efforts to achieve agency reveals that the objective cannot be accomplished without addressing the structural factors that serve to inhibit individual agency. in the context of freed persons and their descendants, those structural factors emanate from the dimensions of the disadvantaged status borne by black 381 emile durkheim, the rules of sociological method 45 (george e. g. catlin ed., sara a. solovay & john h. mueller trans., free press 8th ed. 1964) (1938). 382 emirbayer & mische, supra note 12, at 1003. 383 jane d. mcleod & kathryn j. lively, social structure and personality, in handbook of social psychology 77, 77–78, 81 (john delamater ed., 2003). 384 emirbayer & mische, supra note 12, at 1004; sewell, supra note 377, at 4. 385 see mcleod & lively, supra note 383, at 86 (“social actors are constrained by the structures in which they are embedded, but they also reproduce those structures through their actions”). 328 columbia journal of race and law [vol. 7:2 persons in chattel and civil slavery, the stigma, station, and stratification suffered by the black populace in the united states. in fair measure, those structural factors exist in the form of hidden discrimination, unconscious bias, and other aspects of institutional discrimination. d. unconscious bias and hidden discrimination as structural factors unconscious bias represents a “set of often unconscious beliefs and associations” that members of one group may have about members of another group.386 this type of prejudice results from the history of discrimination against certain groups, and manifests as attitudes and behaviors that result in disadvantage for the historically marginalized groups.387 even if persons possess commendable, antiracist intentions, unconscious bias produces “racially biased cognitive categories and associations” that “shape people’s cognitive, affective, and behavioral responses.”388 these overt behaviors resulting from unconscious bias may take the form of indirect prejudice, where individuals blame members of the disadvantaged group for their predicament; automatic prejudice, where individuals make unconscious, split-second decisions based upon stereotypes, fear, anxiety, etc.; ambiguous prejudice, which research indicates is the main effect of unconscious bias and represents an individual’s subtle favoring of a privileged group rather than a disfavoring of a disadvantaged group; and ambivalent prejudice, where individuals from disadvantaged groups may be “disrespected 386 rebecca m. blank et al., nat’l res. council, measuring racial discrimination 58–59 (2004). 387 id. at 58–60. see devah pager & hana shepherd, the sociology of discrimination: racial discrimination in employment, housing, credit, and consumer markets, 34 ann. rev. soc. 181, 192–93 (2008) (describing “strong negative racial associations” towards african americans revealed in experiments testing for unconscious bias, “even among those who consciously repudiate prejudicial beliefs.”). 388 blank et al., supra note 386, at 59. no. 1:245] from status to agency 329 but liked in a condescending manner,” or “respected but disliked.”389 hidden discrimination may manifest as prejudice or antipathy that is masked in some fashion, yet it also includes other facets. one such form is durable inequality in organizational contexts, in which organizations maintain group boundaries by distinguishing people categorically in an effort to facilitate varied organizational goals such as solidarity, resource-access, etc.390 although such boundary maintenance may not be intentionally sustained to create inequality, it does nonetheless.391 other studies of organizational context reveal that personnel practices are the cause of most discriminatory outcomes in organizations because they fail to constrain unconscious bias.392 other forms of institutional processes manifest as hidden, structural discrimination in society. for example, in the housing context, the process by which housing advertising and selection are made (i.e., subtle steering and mortgage lending) perpetuate racial segregation even though the participants in such practices may not intend to continue illegal housing discrimination.393 likewise, another form of hidden discrimination is statistical discrimination. in this form, decisionmakers discriminate based upon “beliefs that reflect the actual distributions of characteristics of different groups,” yet this discrimination is harmful because it reflects that decisions about an individual member of the group rest upon the characteristics of the group.394 although such decisions may be economically rational when decision makers possess scant information about individuals,395 they violate the rights of individuals to receive individualized consideration for selections. 389 id. at 59–60. 390 pager & shepherd, supra note 387, at 193–94. 391 id. (citation omitted). 392 id. at 194 (citation omitted) (internal alteration omitted) 393 blank et al., supra note 386, at 63–64. 394 id. at 61–62. 395 id. at 62. 330 columbia journal of race and law [vol. 7:2 as described, unconscious bias and hidden discrimination are features of structural discrimination in society that operate to constrain the individual agency of people of color. furthermore, these structural discrimination factors emanate from the history of systemic discrimination and exclusion practiced against subordinated groups, including the salient status dimensions underlying chattel and civil slavery, stigma, station, and stratification. therefore, the thirteenth amendment may be used to abolish these structural discrimination factors that inhibit the individual agency of black persons. postbellum lawmakers and freedmen’s bureau officials erroneously deemed freedom of contract as a sufficient measure under the thirteenth amendment to transform freed persons from a status of bondage to contract freedom. present day lawmakers and law interpreters may use the thirteenth amendment to fashion and recognize additional measures to afford the freedom of agency for descendants of freed persons still suffering from status designations related to chattel and civil slavery (the badges and incidents of slavery). e. disparate impact liability as a measure to combat structural discrimination as argued previously, the disparate impact claim is designed to combat various forms of structural discrimination. in the employment sector, the disparate impact claim preserves a baseline conception of the modern workplace, primarily that the workplace should be organized to provide equal and fair treatment, and efficiently allocate awards and promotions. any workplace practice or measure that distorts governance norms violates the baseline conception and should be exorcised from a particular site. importantly, any practice that adversely impacts a racial category of individuals or other group, but does not efficiently measure the qualifications for a job, violates this baseline conception of procedural efficiency. no. 1:245] from status to agency 331 in particular, certain forms of procedural violations, such as stigmatizing processes, inferior status expectations, and statistical discrimination, countermand the workplace fairness governance norms. stigmatizing processes refer to the phenomena of categorizing individuals pursuant to certain characteristics and ascribing stereotypes to those characteristics.396 selection practices that engender disparate impact against black candidates reinforce stereotypes and further stigmatize the group in light of its historically disadvantaged status. the thirteenth amendment decries such enhancement of a disadvantaged status, and thus the disparate impact claim may be used to combat such stigmatization in the absence of a necessity for the selection practice at issue. status expectations theory and its sub-theory, status characteristics theory, posit that actors in a particular site (a workplace, housing transaction, etc.) imbue traditionally disadvantaged groups with inferior performance status characteristics, particularly the trait of competence, based upon stereotypes, stigmatization, or other experiences with the group.397 the results of selection practices tend to confirm or deny the status characteristics lodged upon a traditionally disadvantaged group in a site, and thus a selection practice that causes an adverse impact against the group confirms the inferior status characteristic about the group, notwithstanding the possibility that the selection practice may not accurately measure ability.398 the disparate impact claim exists to counteract such improper status expectations, and the thirteenth amendment also proscribes such status expectations that harm traditionally disadvantaged groups suffering inferior status based upon a history of subjugation. 396 pager & shepherd, supra note 387, at 193. 397 shelley j. correll & cecilia l. ridgeway, expectation states theory, in the handbook of social psychology 29, 31–34 (john delamater ed., 2003); cecilia ridgeway, the social construction of status value: gender and other nominal characteristics, 70 soc. forces. 367, 368–69 (1991). 398 joseph berger et al., status organizing processes, 6 ann. rev. soc. 479, 480–81 (1980); correll & ridgeway, supra note 397, at 38. 332 columbia journal of race and law [vol. 7:2 as described previously, statistical discrimination refers to those processes in which a decision maker in a setting generalizes about members of a particular group in the absence of individualized information.399 of course, the generalizations about a particular group may result from statistical observations underlying the group, but even such observations may be based upon inappropriate stigmatizing, stereotypes, and status expectations.400 these causes of statistical discrimination violate the thirteenth amendment’s aim to transition individuals from status to agency, and thus the disparate impact claim’s efficacy in combating statistical discrimination by requiring valid selection practices aids in the thirteenth amendment’s goal. therefore, based upon the foregoing analysis it is evident that the thirteenth amendment may serve as the constitutional foundation for the disparate impact claim. both legal doctrines address the same aim: to ameliorate the inferior status of individuals who are members of historically disadvantaged groups, in particular groups who suffered the injustice of chattel and civil slavery. for any future challenge to the constitutionality of the disparate impact claim, the thirteenth amendment should be one of the provisions advanced to maintain its viability and appeal. v. the thirteenth amendment’s prohibition of status serves a common purpose with the fourteenth amendment’s concern with racial classifications finally, the remaining issue is whether this conception of the disparate impact claim protects it from justice scalia’s equal protection clause attack. to recap, justice scalia maintained in his ricci concurrence that disparate impact liability violates the equal protection clause because it 399 see blank et al., supra note 386, at 61–62. 400 id. no. 1:245] from status to agency 333 compels entities to classify their employees (or other actors) according to race and make decisions based upon the classification (if a particular selection practice has a disproportionate impact upon one of the classified races). as this section of the article demonstrates, not only is the disparate impact claim justified under the equal protection clause’s strict scrutiny rationale, its existence as a thirteenth amendment remedy reveals that it works in concert with the fourteenth amendment to achieve the common purpose of eradicating subordinate status. in the first rejoinder to justice scalia’s arguments, the equal protection clause permits racial classifications if the appropriate justification is satisfied. supreme court jurisprudence maintains that “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.”401 the strict scrutiny standard governs racial classifications in equal protection jurisprudence, and it requires that such classifications be “narrowly tailored measures that further compelling governmental interests.”402 the disparate impact doctrine readily satisfies the strict scrutiny standard as the supreme court has ruled that the elimination of racial discrimination constitutes a compelling governmental interest. in one notable case addressing this issue, bob jones university v. united states, the internal revenue service denied the university taxexempt status because of its racially discriminatory admissions policy.403 the university retaliated by seeking a refund of federal unemployment tax payments it had made, and the irs counterclaimed for unpaid taxes.404 after upholding the irs’s interpretations of pertinent statutes that justified its denial of tax-exempt status for 401 adarand constructors, inc. v. peña, 515 u.s. 200, 227 (1995). 402 id. 403 bob jones univ. v. united states, 461 u.s. 574, 579–81 (1983). 404 id. at 582. 334 columbia journal of race and law [vol. 7:2 discriminatory institutions, the court addressed the university’s argument that the irs abridged its right to the free exercise of religion under the first amendment.405 although the first amendment’s free exercise clause mounts a formidable barrier protecting religious freedom, the court established that religious liberty may be abridged when a governmental limitation satisfied an “overriding governmental interest,”406 which is essentially the same framework for racial classification justifications under the equal protection clause. in bob jones, the court unequivocally held that “eradicating racial discrimination” is a compelling and “fundamental, overriding interest” that substantially outweighs the burdens placed on religious beliefs.407 in like manner, the court’s decision in runyon v. mccrary408 reached a similar result. in runyon, parents sought to enroll their black children in two private schools that maintained policies against admitting black students.409 upon denial, they filed claims pursuant to 42 u.s.c. § 1981, the provision of the civil rights act of 1866 that enforces the right to contract free of race and color bias. at the supreme court, a majority upheld the parents’ rights under section 1981 to enroll their children at the schools, and the court maintained that this right was valid under the thirteenth amendment.410 the schools maintained that the court could not apply section 1981—and, by extension, the thirteenth amendment—because they had a first amendment right to freedom of association and recognized rights to privacy, parenting, and familial autonomy under the constitution.411 the court held that although the schools may continue to preach their doctrine of racial segregation, they could not 405 id. at 602–03. 406 id. at 603. 407 id. at 604. 408 runyon v. mccrary, 427 u.s. 160, 176 (1976). 409 id. at 163–65. 410 id. at 172, 179. 411 id. at 175–78. no. 1:245] from status to agency 335 maintain a policy of racial exclusion. as the court declared, the “constitution places no value on discrimination, and while invidious private discrimination may be characterized as a form of exercising freedom of association protected by the first amendment it has never been accorded affirmative constitutional protections.”412 therefore, the court dismissed the challenges by the schools. based upon the court’s decisions in bob jones and runyon, the disparate impact claim should satisfy the equal protection clause’s strict scrutiny justification. although the equal protection clause may not serve as the constitutional basis for disparate impact claims,413 it does not permit individuals and entities to ignore practices that cause adverse impact. the disparate impact claim’s efforts to eradicate discrimination and transition historically disadvantaged individuals from diminished status to effective agency countermands any equal protection clause argument that companies should be permitted to sustain discriminatory practices. the disparate impact claim does not coerce employers to make discriminatory decisions. it requires employers to properly account for selection practices that slow the progression of persons from status to agency, i.e., practices that sustain discrimination. left unfettered, ignoring the discriminatory effects a selection practice has upon a traditionally disadvantaged group violates the thirteenth amendment’s goal to transform individuals from a status of subordination to effective agency for the pursuit of personal advancement. in this manner, the disparate impact claim serves the compelling governmental interest of eradicating discriminatory status burdens and thus does not violate the equal protection clause. 412 id. at 176 (citations and internal alterations omitted). 413 see washington v. davis, 426 u.s. 229, 247–48 (1976) (holding that the equal protection clause prohibits intentional discrimination, but not policies or practices merely having a discriminatory effect in the absence of a prejudicial motivation). 336 columbia journal of race and law [vol. 7:2 notwithstanding this argument that the disparate impact claim does not contravene the equal protection clause, more circumspect analysis reveals that there should be no conflict between a doctrine resting upon the thirteenth amendment and a provision of the fourteenth amendment.414 pursuant to the structural method of constitutional interpretation, observers should construe the constitution’s provisions holistically, with certain clauses clarifying and modifying other text within the document.415 indeed, we may return to justice harlan’s civil rights cases dissent to determine that the reconstruction amendments—in particular the thirteenth and fourteenth amendments— should be read consonant with each other rather than in conflict. 414 although congress, as an arm of the federal government, is subject to the fifth amendment’s equal protection clause rather than that of the fourteenth amendment, they are interpreted to provide virtually the same protections. see adarand, 515 u.s. at 217 (1995). 415 see charles l. black, jr., structure and relationship in constitutional law 7 (1969) (arguing that the court may interpret the constitution by a “method of inference from the structures and relationships created by the constitution in all its parts or in some principal part.”); james e. ryan, laying claim to the constitution: the promise of new textualism, 97 va. l. rev. 1523, 1526 (2011) (“legal academics from the right and the left are looking increasingly to textual clues, the structure of the constitution, historical context, and enactment history to provide as concrete a meaning as possible to these relatively abstract constitutional provisions”). scholar michael dorf posits that black’s method of structural interpretation should be construed as a “method of constitutional interpretation in which the reader draws inferences from the relationship among the structures of government.” michael c. dorf, interpretive holism and the structural method, or how charles black might have thought about campaign finance reform and congressional timidity, 92 geo. l. j. 833, 833 (2004). nevertheless, he acknowledges that an impressive array of scholars maintain that black’s structural method “principally address[es] . . . the structure of the constitution and the relationship among its various provisions,” id. at 835 n.10, including justice scalia. id. at 835 n.6 (citing antonin scalia, a matter of interpretation: federal courts and the law 37 (1997) (“in textual interpretation, context is everything, and the context of the constitution tells us not to expect nit– picking detail . . . .”)). no. 1:245] from status to agency 337 after addressing his interpretation of the thirteenth amendment in his dissent, justice harlan proceeded to demonstrate the propriety of the civil rights legislation under the fourteenth amendment. in doing so, he recounted several prior supreme court cases that elucidated a common purpose for the thirteenth and fourteenth amendments. thus, justice harlan reminded observers that in the slaughterhouse cases,416 the court “declared that the one pervading purpose found in [the reconstruction amendments], lying at the foundation of each, and without which none of them would have been suggested—was ‘the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him.’”417 later in his dissent, he trumpeted the court’s “emphatic language” in ex parte virginia418 that “one great purpose of [the reconstruction amendments] was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the states.”419 likewise, the court stated in strauder v. west virginia420 that the reconstruction amendments have “a common purpose, namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy.”421 finally, justice harlan provided his own structural interpretation of the amendments, declaring that: if the constitutional amendments be enforced, according to the intent with which, as i conceive, they were adopted, there cannot be, in 416 slaughterhouse cases, 83 u.s. (16 wall) 36, 72 (1872). 417 civil rights cases, 109 u.s. at 44 (1883) (citation omitted). 418 ex parte virginia, 100 u.s. 339, 344–45 (1879). 419 civil rights cases, 109 u.s. at 49 (citing ex parte virginia at 344–45). 420 strauder v. west virginia, 100 u.s. 303, 306 (1880). 421 civil rights cases, 109 u.s. at 49 (citing strauder, 100 u.s. at 306). 338 columbia journal of race and law [vol. 7:2 this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. the supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude.422 the foregoing structural interpretation of the reconstruction amendments—in particular the thirteenth and fourteenth amendments—demonstrates that remedial legislation buttressed by one of the amendments cannot supervene another one of the amendments. the thirteenth and fourteenth amendments exist to eradicate an underclass status borne by the institution of chattel and civil slavery. as described in this article, the disparate impact doctrine serves this common purpose underlying both of the amendments as it aids in abolishing the status animating slavery. correspondingly, a remedial vehicle that exists to eradicate racially subordinate status does not violate the equal protection clause; indeed, it works in concert with the equal protection clause to achieve the common purpose of eliminating any class of human beings from being in practical subjugation to another. therefore, the disparate impact doctrine, properly conceived as resting upon the thirteenth amendment, does not violate the equal protection clause. with this understanding of the thirteenth amendment, the disparate impact doctrine returns to its origins of eradicating structural discrimination. before congress amended title vii with the civil rights act of 1991 and explicitly codified the disparate impact claim,423 the doctrine rested upon the 1964 provisions of the act prohibiting “artificial, arbitrary, and unnecessary barriers” that 422 id. at 62. 423 42 u.s.c. § 2000e–2(k). no. 1:245] from status to agency 339 “limit…or classify” aggrieved individuals “in any way which would deprive or tend to deprive any individual of employment opportunities.”424 of course, unconscious discrimination and hidden bias comprise particular forms of “artificial, arbitrary, and unnecessary barriers” that “limit” and “classify” members of historically disadvantaged groups that occupied a lower status in united states society. that the disparate impact doctrine serves as a remedial vehicle to circumvent these barriers makes it a preeminent means to advance the thirteenth amendment’s legacy as our nation’s best hope for finally transforming the vestiges of subordinated status into effective forms of agency. vi. conclusion notwithstanding the passage of 150 years since the ratification of the thirteenth amendment, the need still exists to focus the thirteenth amendment upon transforming members of aggrieved groups from a diminished status to effective, individual agency. advancement in the protection of civil and human rights ensures that groups no longer suffer the ignobility of civil slavery, but the badges of the “very spirit of slavery”—the consequences of four centuries of diminished status—have not entirely abated. as established in the social scientific data reviewed in prior sections, it is still too common for descendants of freed persons to fall prey to conscious or 424 id. § 2000e–2(a)(2); see also tex. dep’t of hous. & cmty. affairs v. inclusive communities project, inc., 135 s. ct. 2507, 2517–18 (2015) (citing griggs v. duke power co., 401 u.s. at 426 n.1 (1971)); smith v. city of jackson, 544 u.s. 228, 235 (2005) (noting that the disparate impact claims of title vii and the age discrimination in employment act (29 u.s.c. § 623(a)) rest upon the provisions of the respective statutes that proscribe practices that limit, segregate, or classify employees); connecticut v. teal, 457 u.s. 440, 448 (1982) (citing 42 u.s.c. § 2000–e(a)(2)) (the disparate impact claim reflects that part of title vii prohibiting “discriminatory ‘artificial, arbitrary, and unnecessary barriers to employment,’ . . . that ‘limit . . . or classify . . . applicants for employment . . . in any way which would deprive or tend to deprive any individual of employment opportunities.’”). 340 columbia journal of race and law [vol. 7:2 unconscious notions of inferior competence and devalued expectations. indeed, the prominence of the black lives matter movement demonstrates that black persons still suffer lower assessments of their relative worth. the badges of inferior status still exist, signaling the continued need for the thirteenth amendment and its programs for transformation, including a properly-conceived disparate impact doctrine. although the conception of agency incorporates a measure of autonomy, it is past time to proceed beyond the notion of freedom and invoke the concept of dignity as an integral component of the thirteenth amendment. dignity is a prominent human rights value in modern legal orders, and it is beyond debate that slavery is a violation of human dignity. in the same manner, diminished status—as manifested via stigma, station, and stratification— transgresses human dignity, as it denies individuals the inherent worth and integrity accorded to all of humanity. infusing the thirteenth amendment with the value of human dignity bolsters the charge that the amendment serves to eradicate diminished status and transform persons to a state of agency. the rationales for both the thirteenth amendment and the disparate impact doctrine both reflect a concern for individual self-worth and human dignity, and this realization should parry any attack upon the doctrine’s constitutionality. cjrl calvo f17-corrected.pdf professional licensing and teacher certification for non-citizens: federalism, equal protection and a state’s socioeconomic interests janet m. calvo1 some states have recently addressed the integration of their non-citizen populations and their socioeconomic needs by expanding the eligibility of professional licensing to noncitizens. changes made in 2016 in the two states with the largest immigrant populations, california and new york, were extensive and comprehensive. california removed immigration status requirements for licensing through legislation that covered all occupations regulated by the california department of consumer affairs. the new york board of regents and commissioner of education expanded the categories of non-citizens eligible for professional licensing and teaching certification through administrative regulations, including all non-citizens permanently residing in the state under color of law. the changes in these two states required consideration of state sovereignty and equal protection. california treated all state applicants equally by removing any citizenship or immigration status requirements. new york determined that its state sovereignty allowed the state-designated agency to set licensing criteria for noncitizens despite a federal statute that purported only to allow 1 janet m. calvo is a professor of law at cuny school of law. some of this article reflects collaboration with the center on latino and latina rights and equality (clore), professor natalie gomez-velez of cuny school of law, jose perez of latinojustice prldef, annie wang of aaldef, and steven choi of the new york immigration coalition, with whom the author worked to advocate for a change in the new york regulations. this article was written with the research assistance of cuny school of law students bianca granados, cheryl walker, lourdes cajamarca, lauren dimartino, marcella marucci, nathalie varela, and nealraj bhushan, and with the assistance of maggie ruperto of the cuny school of law staff. professors natalie gomez-velez, ruthann robson, rick rossein, and stephen loffredo provided helpful insights. 34 columbia journal of race and law [vol. 8:1 such licensing through state legislation. both states concluded that an expansion of the eligibility of non-citizens for licensed professions allowed them to maximize the benefits of their in-state tuition policies and provided economic and social advantages for their communities. i. introduction ................................................................ 35 ii. california’s legislative approach .......................... 39 a. the california legislation ...................................... 39 b. the california system of professional licensing and teacher certification ......................................................... 40 c. professions covered by the legislation .................. 44 d. history of the legislation and positions in favor and opposed ....................................................................... 45 iii. new york’s regulatory approach ........................ 48 a. the new york regulations ..................................... 48 b. the new york system of professional licensing and teacher certification ......................................................... 49 c. professions covered by the regulations ................. 50 d. regulatory history .................................................. 53 e. the non-citizen categories eligible for licensing and certification ................................................................ 55 1. deferred action for childhood arrivals (“daca”) 56 2. permanently residing under color of law (“prucol”) .................................................................... 61 3. non-citizen categories designated under federal law 64 iv. federalism and equal protection ....................... 64 a. federalism ............................................................... 65 b. equal protection ...................................................... 74 no. 2:33] professional licensing and teacher certification 35 v. comments from the new york regulatory process 83 a. comments in support .............................................. 84 b. comments in opposition ......................................... 88 c. comments urging no state restrictions based in non-citizen category......................................................... 90 vi. insights from california’s and new york’s approaches ........................................................................... 93 vii. conclusion ................................................................ 98 viii. appendix 1–california licensing and teacher certification ............................................. 100 ix. appendix 2–n.y. educ. law and department of education applications for professional licenses for non-citizens ...................................... 115 i. introduction recently, some states have allowed non-citizens in various categories to obtain professional licensing.2 most of the states’ recent changes affect particular professions or particular categories of non-citizens, but the 2016 changes in new york and california were extensive and comprehensive. this is significant because they are the two states with the 2 professional licenses for immigrants, nat’l conf. st. legislatures (jan. 17, 2017), http://www.ncsl.org/research/immigration/professional-and-occupationallicenses-for-immigrants.aspx (reporting changes in new york, california, florida, illinois, minnesota, michigan, nebraska, nevada, south dakota, utah, west virginia and wyoming). 36 columbia journal of race and law [vol. 8:1 largest immigrant populations. 3 california addressed the issue through legislation that covered all occupations regulated by the california department of consumer affairs.4 the new york board of regents and commissioner of education addressed the issue through administrative regulations that apply to the professions and teacher certifications regulated by the new york department of education.5 the changes in these two states involved confrontation with the legal issues of state sovereignty and equal protection, and an assessment of the value of the economic and social contributions of their non-citizen populations. this article describes the issues resolved by these two states as useful information to address the most effective ways to recognize and integrate non-citizen populations and to meet states’ economic and social needs for qualified professionals. while affecting all states, the issue of non-citizens’ licensing is of particular import in the states that afford in-state tuition to non-citizens for higher education,6 since these states have a particular interest in gaining the benefits of that state-supported education.7 3 u.s. immigrant population by state and county, migration pol’y inst., http://www.migrationpolicy.org/programs/data-hub/charts/usimmigrant-population-state-and-county (last visited oct. 21, 2017). the migration policy institute indicates california as the state with the largest immigrant population with new york as second and texas as third. id. the pew research center states that texas is tied with new york as the state with the second largest immigrant population. renee stepler, texas immigrant population now rivals new york’s in size, pew res. ctr. (apr. 21, 2016), http://www.pewresearch.org/fact-tank/2016/04/21/texasimmigrant-population-now-rivals-new-yorks-in-size/. however, new york’s immigrant population is more diverse than either the california or texas populations. id. 4 cal. bus. & prof. code § 135.5(b) (west, westlaw through ch. 467 of 2017 reg.sess.). 5 n.y. comp. codes r. & regs. tit. 8 § 59.4 (2017); n.y. comp. codes r. & regs. tit. 8 § 80-1.3 (2017). 6 see generally table: laws & policies improving access to higher education for immigrants, nat’l immigr. l. ctr., https://www.nilc.org/wpcontent/uploads/2017/04/table-access-to-ed-toolkit-2017-04.pdf (last no. 2:33] professional licensing and teacher certification 37 professor michael olivas’ forthcoming article points to a need for thoughtful consideration of these issues. after presenting and analyzing national research on business and occupational licensing for non-citizens, particularly the undocumented and those with deferred action for childhood arrivals (“daca”), he concludes that the developments in this area are complex, confusing, ineffective, and in great need of improvement.8 the relevant legal issues need to be sufficiently considered.9 the socio-economic considerations are also important as they affect states’ and localities’ integration of their non-citizen populations and non-citizens’ participation in their communities’ economic and social progress. updated apr. 2017) (listing laws and policies of states allowing students who meet certain criteria, regardless of immigration status, to pay in-state tuition); undocumented student tuition: overview, nat’l conf. st. legislatures (oct. 29, 2015), http://www.ncsl.org/research/education/undocumented-student-tuitionoverview.aspx (providing background on states with in-state tuition rates for undocumented students). 7 for discussions of issues underlying in-state tuition and higher education aid for non-citizens, see generally stephen l. nelson et al., administrative dream acts and piecemeal policymaking: examining state higher education governing board policies regarding instate tuition for undocumented immigrant students, 28 geo. immigr. l.j. 555 (2014); michael a. olivas, dreams deferred: deferred action, prosecutorial discretion, and the vexing case(s) of dream act students, 21 wm. & mary bill rts. j. 463 (2012); michael a. olivas, iirira, the dream act, and undocumented college student residency, 30 j.c. & u.l. 435 (2004). 8 see michael a. olivas, within you without you: undocumented lawyers, daca, and occupational licensing, 52 val. l. rev. (forthcoming 2017) (manuscript at 3, 48), https://ssrn.com/abstract=2997713. 9 the legal issues discussed below focus on state sovereignty and equal protection. see jennesa calvo-friedman, the uncertain terrain of state occupational licensing laws for noncitizens: a preemption analysis, 102 geo. l.j. 1597 (2014), for an analysis that demonstrates how preemption bars states from limiting the licensing of non-citizens with federal employment authorization. 38 columbia journal of race and law [vol. 8:1 the object of this article is to examine how these underlying issues were addressed in the two states that took a comprehensive approach. california’s broad legislation and new york’s administrative regulations based in state sovereignty under the tenth amendment and equal protection for its non-citizen population provide alternative pathways that recognize the value of non-citizen participation in a state’s regulated professions and teaching. part i describes the california legislation, and its stated purpose and reasoning. it relates the reported comments made about the legislation, including its social and economic effects. california decided that it was in its best economic and social interest to focus on competency qualifications for professionals, regardless of immigration status.10 the article describes the occupations to which the legislation applies and the california administrative process that regulates and issues licenses and teacher certifications. appendix 1 details these occupations and their statutory and regulatory basis. part ii describes the regulatory changes made in new york. appendix 2 details the covered professions and their state statutory basis. it explains the new york regulatory system, new york’s final regulations, the professions to which they apply, and the non-citizen categories that are now eligible for licensing and teacher certification. new york chose to allow licensing to a broad category of noncitizens not unlawfully present, including those permanently residing in the state under color of law (“prucol”), and those with daca.11 10 cal. bus. & prof. code § 135.5(a) (west, westlaw through ch. 467 of 2017 reg.sess.). 11 memorandum from douglas e. lentivech & john l. d’agati to bd. of regents prof’l practice comm., higher educ. comm. (may 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. no. 2:33] professional licensing and teacher certification 39 part iii details the federalism and equal protection issues involved in the state regulation of licensing. the new york board of regents confronted both of these issues in the consideration of regulatory change.12 part iv reviews and responds to the issues raised by the comments made in new york’s regulatory process. these issues include the socioeconomic advantages of the regulations to the state and its residents, the question of whether the regulations should have removed any restrictions based on immigration status, as did the california statute, and whether the regulations benefited or disadvantaged members of military families. part v discusses the insights for other states and their residents from the new york and california experience. the article concludes that a comprehensive approach to the inclusion of non-citizens in a state’s professions and teaching provides economic and social advantage for a state and its communities, and that state sovereignty allows states to regulate the eligibility of non-citizens. ii. california’s legislative approach a. the california legislation the california legislation addressed the issue of professional licensing for non-citizens for numerous professions.13 the legislation was signed by governor brown in 2014 and made effective as of january 2016. 14 the california business and professions code clearly stated its purpose. the statute states, the legislature finds and declares that it is in the best interests of the state of california to provide persons who are not lawfully present 12 id. 13 see infra appendix 1. 14 vote smart, sb 1159 authorizes undocumented immigrants to receive professional licenses key vote, vote smart, https://votesmart.org/bill/19373/50908/69557/jerry-brown-signed-sb-1159authorizes-undocumented-immigrants-to-receive-professionallicenses#50908 (last visited oct. 22, 2017). 40 columbia journal of race and law [vol. 8:1 in the united states with the state benefits provided by all licensing acts of entities within the department . . . .15 the law provides that no entity within the california department of consumer affairs (“dca”) “shall deny licensure to an applicant based on his or her citizenship status or immigration status.” 16 it also removes the citizenship and immigration status requirements for a physician and surgeon’s certificate. 17 the law further requires that individuals applying for licenses have to provide either a federal tax identification number or a social security number, predominately for the purpose of identifying persons affected by state tax laws.18 the change from prior law now affords the option of using a federal tax identification number instead.19 b. the california system of professional licensing and teacher certification the california statute applies to the professions regulated by the dca. 20 the dca issues licenses, certificates, registrations and permits in over 250 business and professional categories.21 there are several profession15 cal. bus. & prof. code § 135.5(a) (west, westlaw through ch. 467 of 2017 reg.sess). 16 cal. bus. & prof. code § 135.5(b) (west, westlaw through ch. 467 of 2017 reg.sess.). 17 see cal. bus. & prof. code § 2050 (west, westlaw through ch. 467 of 2017 reg.sess.). 18 s. 1159, 2013-2014 (cal. 2014), https://leginfo.legislature.ca.gov/faces/billnavclient.xhtml?bill_id=2013201 40sb1159. 19 see id. 20 cal. bus. & prof. code § 135.5(b) (west, westlaw through ch. 467 of 2017 reg.sess.). 21 see dca boards/bureaus, cal. dep’t consumer aff., http://www.dca.ca.gov/about_dca/entities.shtml (last visited oct. 22, 2017). no. 2:33] professional licensing and teacher certification 41 specific regulatory boards under its supervision. 22 these regulatory boards license, register, and certify individuals and businesses in particular occupations, and discipline license holders who violate practice requirements.23 boards are semiautonomous. 24 the governor, the senate rules committee, or the speaker of the assembly appoints members.25 state law sets the number of board members and who they represent.26 members of a board include people representing the profession and people representing the public.27 the boards, with the assistance of their staffs, set the standards for licensing and renewal of licenses including education, experience, examination, and continuing education requirements.28 they receive, review and issue licenses.29 22 cal. bus. & prof. code § 101 (west, westlaw through ch. 467 of 2017 reg.sess.). 23 cal. dep’t of consumer affairs, 2016 annual report 9 (2016), http://www.dca.ca.gov/publications/2016_annrpt.pdf. 24 id. 25 id. 26 id. 27 id. 28 see cal. dep’t of consumer affairs, who we are & what we do 14 (2015), http://www.dca.ca.gov/publications/dca_booklet.pdf; cal. bus. & prof. code § 101.6 (west, westlaw through ch. 467 of 2017 reg.sess.) stating that the boards: establish minimum qualifications and levels of competency and license persons desiring to engage in the occupations they regulate upon determining that such persons possess the requisite skills and qualifications necessary to provide safe and effective services to the public, or register or otherwise certify persons in order to identify practitioners and ensure performance according to set and accepted professional standards. they provide a means for redress of grievances by investigating allegations of unprofessional conduct, incompetence, fraudulent action, or unlawful activity brought to their attention by members of the public and institute disciplinary action against persons licensed or registered under the provisions of this code when such action is warranted. in addition, they conduct periodic checks of licensees, registrants, or otherwise certified persons in 42 columbia journal of race and law [vol. 8:1 they review complaints and engage in disciplinary actions.30 they implement the legislation and regulations relevant to the supervised occupations.31 the dca’s division of investigation is the law enforcement branch that addresses misconduct by licensees or unlicensed activity.32 it works closely with the boards that supervise particular professions. dca’s office of professional examination services ensures that licensing examinations are valid and occupation related.33 the department’s responsibility is to protect and serve california’s consumers.34 it provides access to ethical and competent service providers by assuring that a person who holds a license has met california’s competency order to ensure compliance with the relevant sections of this code. 29 id. 30 id. 31 see cal. dep’t of consumer affairs, 2016 annual report 9 (2016), http://www.dca.ca.gov/publications/2016_annrpt.pdf, which includes legislation and regulations relevant to each supervised occupation; see also cal. dep’t of consumer affairs, 2017-2020 strategic plan 3 (2017), http://www.dca.ca.gov/publications/strategicplan.pdf. 32 california department of consumer affairs, supra note 22 at 4. 33 see california department of consumer affairs, supra note 25 at 4–5. 34 see cal. dep’t of consumer affairs, 2017-2020 strategic plan 2 (2017), http://www.dca.ca.gov/publications/strategicplan.pdf. the dca was created in 1876 to protect consumers. see cal. dep’t of consumer affairs, who we are & what we do 14 (2015), http://www.dca.ca.gov/publications/dca_booklet.pdf. the statutory purpose of the dca is as follows: [b]oards, bureaus, and commissions in the department are established for the purpose of ensuring that those . . . deemed to engage in activities which have potential impact upon the public health, safety, and welfare are adequately regulated in order to protect the people of california. cal. bus. & prof. code § 101.6 (west, westlaw through ch. 467 of 2017 reg.sess.). no. 2:33] professional licensing and teacher certification 43 qualifications such as education, experience and examination requirements.35 it further protects the health, safety and welfare of californians by ensuring its boards and bureaus prevent harmful conduct by licensed professionals and eliminate unlicensed activity. 36 the change in the law removing restrictions based on immigration status allows the sole focus of the department of consumer affairs and the boards to be on applicants’ expertise, the competency criteria for licensed professions, and the requirements and process to assure consumer protection through enforcement of competency and licensing requirements. lawyers and teachers are regulated by other california state entities. a statute in 2013 provided for bar membership by the california supreme court without regard to immigration status.37 teaching certification is regulated by the california commission on teacher credentialing, which “serve[s] as a state standards board for educator preparation for the public schools of california, the licensing and credentialing of professional educators in the state, the 35 see cal. dep’t of consumer affairs, 2017-2020 strategic plan 2 (2017), http://www.dca.ca.gov/publications/strategicplan.pdf. 36 id. at 6. 37 cal. bus. & prof. code § 6064(b) (west); cal. bus. & prof. code § 6064(b) (west); cal. bus. & prof. code § 6064(b) (west, westlaw through ch. 467 of 2017 reg.sess) (providing that the california supreme court may admit an applicant who is not lawfully present in the united states as an attorney at law if the applicant has fulfilled the requirements for admission to practice law) (amended 2013); accord in re garcia, 315 p.3d 117 (cal. 2014) (holding that state law and state public policy do not preclude admitting undocumented immigrants to the state bar); accord matter of vargas, 10 n.y.s.3d 579 (app. div. 2015) (holding that an undocumented non-citizen may be afforded bar membership in new york). for discussions of bar membership, see generally frances dávila et al., bickel & brewer latino inst. for human rights at n.y. univ. sch. of law & latinojustice prldef, lifting the bar: undocumented law graduates & access to law licenses (2014), http://latinojustice.org/briefing_room/resources/report_lifting_the_bar_ undocumented_law_graduates_access_to_law_licenses_feb_2014.pdf; janet m. calvo et al., footnote forum, daca and ny bar eligibility, 17 cuny l. rev. 47 (2013), http://www.cunylawreview.org/wpcontent/uploads/2013/11/14-calvo-lung-newman.pdf; olivas, supra note 8. 44 columbia journal of race and law [vol. 8:1 enforcement of professional practices of educators, and the discipline of credential holders in the state of california.”38 the california teaching license application requires applicants to provide either a social security number or tax identification number.39 c. professions covered by the legislation the statute that precludes immigration category as a criterion for licensing covers numerous health-related professions.40 these include: acupuncturists, clinical social workers, educational psychologists, marriage and family therapists, chiropractors, dentists, dental hygienists, doctors, research psychoanalysts, midwives, naturopathic doctors, occupational therapists, optometrists, dispensing opticians, osteopathic physicians and surgeons, pharmacists, physical therapists, physical therapist assistants, physician assistants, podiatric doctors, nurses, nurse midwives, nurse practitioners, audiologists, speech-language pathologists, veterinarians, and psychologists.41 other occupations licensed by the dca include a long list of professional and business-related occupations.42 some of the professions included are accountants, architects, certified shorthand court reporters, engineers, land surveyors, geologists, geophysicists, landscape architects, professional fiduciaries, real estate brokers, and security and investigative services professionals. appendix 1 includes a 38 about the commission, cal. comm’n on teacher credentialing, https://www.ctc.ca.gov/commission/default (last updated may 9, 2017). 39 application for credential authorizing public school service, cal. comm’n on teacher credentialing, https://www.ctc.ca.gov/docs/defaultsource/leaflets/414.pdf?sfvrsn=24453907_2 (last modified apr. 2017). 40 cal. bus. & prof. code § 135.5 (west, westlaw through ch. 467 of 2017 reg.sess.). 41 see infra appendix 1 for a full list and for the relevant state statutes. 42 id. no. 2:33] professional licensing and teacher certification 45 full list of the occupations licensed by the california dca.43 d. history of the legislation and positions in favor and opposed california state senator ricardo lara championed the california legislation that removed immigration category as a criterion for licensing.44 he stated that the law creates new economic opportunities for california’s immigrant workforce and also stimulates the california economy.45 he noted that highly skilled immigrants would be able to contribute both their talents and their tax dollars. 46 he further pointed out that immigrants in california are entrepreneurial, thereby contributing to california’s economic output, and that undocumented immigrants alone contributed about 130 billon of california’s gross domestic product.47 a california senate floor bill analysis stated the positions in support of the licensing legislation.48 the los angeles area chamber of commerce noted that many noncitizens come to california as children and are educated in elementary and secondary schools in the state. many continue onto higher education, availing themselves of state laws that offer access to in-state tuition. they overcome many obstacles to succeed, but without access to professional licenses, they are limited in their ability to contribute to the 43 id. 44 see ricardo lara, realizing the dream: expanding access to professional licenses for california’s undocumented immigrants, 27 harv. j. hisp. pol’y 26 (2014). 45 id. at 27. 46 id. 47 id. 48 senate floor analyses, bill analysis for sb-1159 professions and vocations: license applicants: individual tax identification number, cal. legis. info. (aug. 29, 2014) at 7–8 http://leginfo.legislature.ca.gov/faces/billanalysisclient.xhtml?bill_id=2013 20140sb1159. 46 columbia journal of race and law [vol. 8:1 state.49 the california immigrant policy center similarly stated that without access to professional licenses, individuals would be limited in their economic contributions to the state, because they would be restricted in their ability to participate in the workforce or start a business.50 the national association of social workers stated that it was in the best interest of the state to support efforts to educate its workforce and enable all residents to improve their economic mobility and self-sufficiency.51 several other groups also supported the legislation including educators for fair consideration, pre-health dreamers, the american civil liberties union of california, the coalition for humane immigrant rights of los angeles, and the mexican american legal defense and educational fund. 52 these organizations asserted that allowing professional licensure improves access to economic opportunities to immigrants in california. 53 further, enabling more californians to work as licensed professionals will increase immigrants’ contributions to the state’s economy. 54 they pointed out that california is currently home to more than 10 million immigrants, 1.85 million who are undocumented workers. these immigrant workers contributed an estimated $2.7 billion in state taxes in 2010.55 they also noted that by expanding eligibility for professional licenses regardless of immigration status, california was recognizing immigrant contributions and continuing immigrant integration efforts.56 49 id. at 7. 50 id. at 8. 51 id. 52 advocates applaud signing of professional licensing bill for immigrants, aclu northern cal. (sept. 28, 2014), https://www.aclunc.org/news/advocates-applaud-signing-professionallicensing-bill-immigrants. 53 id. 54 id. 55 id. 56 id. no. 2:33] professional licensing and teacher certification 47 the federation of american immigration reform opposed the bill arguing that california should not obliterate the distinction between people legally present and those who are in violation of federal law.57 the legislative record does not include a response to this objection. however, the california supreme court responded to a similar argument in the context of bar admission in the case in re garcia.58 the california state legislature passed a law allowing the bar admission of applicants “not lawfully present in the united states.”59 the california court examined whether there were any reasons under state law that undocumented immigrants, as a class or group, should not be admitted to the state bar, and whether mr. garcia as an individual possessed the requisite character and fitness for bar admission.60 the court concluded there was no state law or state public policy that would justify precluding undocumented immigrants, as a class, from obtaining a law license in california and that mr. garcia “met his burden of demonstrating that he possesse[d] the requisite good moral character to qualify for a law license.” 61 mr. garcia was admitted to the california bar in january 2014.62 the court responded to objections to the bar membership of undocumented non-citizens raised by amicus. 63 the amicus argued that an undocumented immigrant could not properly take the oath of office required of an attorney because an undocumented immigrant is in violation of federal immigration law simply by being present 57 legislative update: 5/21/2014, fed’n for am. immigr. reform (may 21, 2014), http://www.fairus.org/legislative-updates/legislativeupdate-5-21-2014. 58 in re garcia, 315 p.3d 117 (cal. 2014). 59 cal. bus. & prof. code § 6064(b) (west 2017). 60 in re garcia, 315 p.3d at 129–30. 61 id. at 134. 62 undocumented immigrant granted law license by calif. supreme court, cbs news (jan. 2, 2014, 6:34 pm), https://www.cbsnews.com/news/sergio-garcia-undocumented-immigrantgranted-law-license-by-california-supreme-court/. 63 in re garcia, 315 p.3d at 129–30. 48 columbia journal of race and law [vol. 8:1 in the country without authorization.64 the court looked at the issue of conduct related to the oath broadly, and stated that the fact that a bar applicant’s past or present conduct may violate some law does not invariably render the applicant unqualified to be admitted to the bar or to take the required oath.65 the court concluded that the fact that an undocumented immigrant is present in the united states without lawful authorization does not involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the state bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the constitution and laws of the united states and california. 66 in doing so, the court noted that an undocumented immigrant’s presence in this country can result in a variety of civil sanctions, but is not a crime, and that federal law grants federal immigration officials broad discretion in determining under what circumstances to seek to impose civil sanctions upon an undocumented immigrant and in determining what sanctions to pursue.67 the court concluded that the fact that an undocumented immigrant’s presence in this country violates federal statutes is not a sufficient or persuasive basis for denying undocumented immigrants admission to the state bar as a class.68 iii.new york’s regulatory approach a. the new york regulations on may 17, 2016, the new york state board of regents permanently adopted the commissioner of education’s regulations to provide expanded categories of non-citizens’ eligibility for professional licenses.69 the new 64 id. 65 id. at 130. 66 id. 67 id. 68 id. at 131. 69 board of regents permanently adopts regulations to allow daca recipients to apply for teacher certification and professional no. 2:33] professional licensing and teacher certification 49 york board of regents also addressed teacher certifications required for public school teachers. 70 the regulations provide that no otherwise qualified individual shall be denied a professional license or teacher certification “if the individual is not unlawfully present in the united states, including but not limited to individuals granted daca relief or similar relief from deportation.”71 the memorandum that responded to comments clarified that those with similar relief include non-citizens who are prucol.72 b. the new york system of professional licensing and teacher certification the new york state board of regents has special authority over a combination of state education policy, educational institutions, and professional licensing. 73 the regents provide guidance for and supervision of the new york state department of education and the university of licenses, n.y. st. educ. dep’t (may 17, 2016), http://www.nysed.gov/news/2016/board-regents-permanently-adoptsregulations-allow-daca-recipients-apply-teacher. 70 id. 71 n.y. comp. codes r. & regs. tit. 8 § 59.4 (2017); n.y. comp. codes r. & regs. tit. 8 § 80-1.3 (2017) 72 memorandum from douglas e. lentivech to professional practices committee & higher education committee (may 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 73 n.y. educ. law § 201 (mckinney 2009), n.y. educ. law § 207 (mckinney 2009), n.y. educ. law § 6506 (mckinney 2016). this article does not address all the occupations licensed or certified in new york state. according to the new york department of labor 130 occupations are licensed or certified by new york state’s different agencies. new york state department of labor, occupations licensed or certified by new york state, https://www.labor.ny.gov/stats/lstrain.shtm. they have different criteria for non-citizens. for example, the new york state department of state licenses numerous occupations. its application forms do not generally inquire into citizenship or immigration category. see for examples, barber, https://www.dos.ny.gov/licensing/barber/barbering_faq.html#; https://www. dos.ny.gov/licensing/lawbooks/barber.pdf, real estate appraiser, http://www.dos.ny.gov/forms/licensing/en/1432-f-a.pdf, and athlete agent, http://www.dos.ny.gov/forms/licensing/1640-a.pdf. 50 columbia journal of race and law [vol. 8:1 the state of new york. 74 this includes the education department’s office of the professions and the office of teaching initiatives. the board of regents is a unique governmental entity established by the new york state constitution.75 the new york state legislature elects the seventeen members of the board of regents, one from each of the state’s thirteen judicial districts and four at large members.76 the new york education law authorizes the board of regents to supervise the admission to and regulation of the practices of the professions.77 the new york department of education’s office of professional licensing is assisted by state boards78 and determines license eligibility for over fifty professions. 79 specific qualifications are set for each profession and may require particular education and courses, examination scores, and experiential or clinical education.80 c. professions covered by the regulations new york's system of professional regulation encompasses nearly 900,000 practitioners and over 30,000 professional practice business entities. 81 many of the licensed professions are health related, including medicine 74 about the university of the state of new york (usny), http://www.nysed.gov/about/about-usny. 75 n.y. const. art. xi, § 2 (mckinney 2006). 76 n.y. educ. law § 201 (mckinney 2009); see also new york state education department, about the board of regents, http://www.regents.nysed.gov/about. 77 n.y. educ. law § 6504 (mckinney 2016). 78 new york state department of education, state boards for the professions http://www.op.nysed.gov/boards/; new york state department of education, state boards for the professions statutory composition & current membership, http://www.op.nysed.gov/boards/bdcomp.htm 79 new york state department of education, the licensed professions in new york state, http://www.op.nysed.gov/prof/. 80 see, e.g., n.y. comp. codes r. & regs. tit. 8, part 60 (2015). 81 new york state department of education, office of the professions, http://www.op.nysed.gov/. no. 2:33] professional licensing and teacher certification 51 (physicians and physician assistants), nursing, dentistry, midwifery, pharmacy, occupational and physical therapy, acupuncture, behavior analysis, audiology, chiropractic, dietetics, laboratory technology, massage therapy, medical physics, mental health practitioners, optometry, perfusion, podiatry, psychology, athletic training, respiratory, speech and language therapy, and veterinary medicine. other professions include social work, architecture, engineering, public accountancy, geology, land surveying, landscape architecture, interior design and shorthand reporters. 82 appendix 2 lists these professions, the applicable state statutes and links to the application forms. the new york education law does not restrict licensure based on one’s immigration category for a broad number of professions. twenty-nine professions do not have any statutory requirements regarding citizenship, legal permanent residency, or any immigration category. additionally, for nine occupations, the new york education law does not have any immigration category requirements and further specifically states that an individual does not need to meet any requirement of united states citizenship.83 for thirteen professional licenses, the education law required legal permanent residence. 84 however, in dandamudi v. tisch, 85 the second circuit struck down as unconstitutional requirements in new york education law that a license applicant had to be a citizen or a legal permanent resident.86 this decision applied to the statute regarding pharmacists and other new york statutes that similarly restricted licenses for twelve additional 82 new york state department of education, the licensed professions in new york state, http://www.op.nysed.gov/prof/. 83 see appendix 2. 84 id. 85 686 f.3d 66 (2d cir. 2012). 86 n.y. educ. law § 6805(1)(6) (mckinney 2016). 52 columbia journal of race and law [vol. 8:1 professions. 87 the dandamudi decision resulted in the removal of all immigration category restrictions for professional licenses from these provisions of the education law, as they are all unconstitutional on the same reasoning.88 after dandamudi, the new york legislature did not impose any further restrictions on professional licensing for noncitizens.89 the new york education law establishes certification by the state education department as a qualification to teach in the public schools of new york state.90 the office of teaching initiatives is responsible for teacher certification. 91 new york state teachers, administrators, and pupil personnel service providers are required to hold a new york state certificate in order to be employed in the state’s public schools.92 the office certifies that an individual has met required degree, coursework, assessment, and experience requirements. certificates are issued in a number of titles in three major categories: classroom teaching, administrative and supervisory, and pupil personnel service (e.g., school counselor, psychologist, 87 new york state education department, u.s. court of appeals decision on litigation involving 13 professions that require u.s. citizenship or permanent lawful residence for licensure, http://www.op.nysed.gov/news/advisory-notices.html#appeals. 88 as the second circuit noted, similar provisions of the new york education law required non-citizens to be legal permanent residents to be licensed as physicians, chiropractors, dentists, dental hygienists, veterinarians, veterinary technicians, midwives, engineers, land surveyors landscape architects, certified shorthand reporters and massage therapists. dandamudi, 686 f.3d at 75–76. 89 proposed legislation would afford licensing to those who are new york state residents, who have requested a state identification number as citizens of the state. new york senate bill no. 776a, https://www.nysenate.gov/legislation/bills/2015/s776. 90 n.y. educ. law § 3001(2) (mckinney 2015). 91 new york state education department, office of teaching initiatives, certification from start to finish (2017), http://www.highered.nysed.gov/tcert/certificate/certprocess.html. 92 id. no. 2:33] professional licensing and teacher certification 53 social worker). 93 the new york education law states a citizenship requirement as a qualification for teaching in the public schools of new york state. however, under the statute, the commissioner of education’s regulations can authorize aliens to teach in the public schools.94 d. regulatory history the regulations regarding non-citizen eligibility for professional licenses and teacher certification became effective on june 1, 2016, after a final vote by the new york state board of regents on may 17, 2016.95 at its february 2016 meeting the board of regents higher education committee and professional practice committee discussed amending regulations relating to noncitizen’s eligibility for professional licenses and teacher certification. 96 the proposed regulations were published in the new york state register on march 9, 2016 designating a forty-five-day comment period.97 the board of regents higher education committee and professional practice committee 93 id. 94 n.y. educ. law § 3001(3) (mckinney 2015). 95 new york state education department, board of regents permanently adopts regulations to allow daca recipients to apply for teacher certification and professional licenses (may 17, 2016), http://www.nysed.gov/news/2016/board-regents-permanently-adoptsregulations-allow-daca-recipients-apply-teacher. 96 memorandum from douglas e. lentivech & john l. d’agati to board of regents professional practice committee, higher education committee (february 16, 2016), https://www.regents.nysed.gov/common/regents/files/216heppcd1.pdf; new york state education department, report of regents higher education/professional practice joint meeting committee to the board of regents (2016), https://www.regents.nysed.gov/report/feb-2016/highereducation-professional-practice. 97 memorandum from douglas e. lentivech & john l. d’agati to board of regents professional practice committee, higher education committee (may 9, 2016), https://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 54 columbia journal of race and law [vol. 8:1 recommended the amendment of the regulations98 after the presentation of a review of the proposed amendments and the comments received. the final vote of the board of regents approved amendments to two regulations. the first regulation applies to eligibility for the professional licenses supervised by the department of education’s office of professional licensing.99 the second regulation applies to eligibility for teacher certification and registration.100 98 new york state education department, report of regents higher education/professional practice joint meeting committee to the board of regents (may 2016), https://www.regents.nysed.gov/report/may-2016/higher-educationprofessional-practice. 99 n.y. comp. codes r. & regs. tit. 8, § 59.4 (2017) “notwithstanding any other provision of this title to the contrary, no otherwise qualified applicant shall be denied a license, certificate, limited permit or registration pursuant to this title by reason of his or her citizenship or immigration status, unless such applicant is otherwise ineligible for a professional license under 8 usc section 1621 or any other applicable federal law. provided, however that pursuant to 8 usc section 1621(d), no otherwise qualified applicant alien shall be precluded from obtaining a professional license under this title if an individual is not unlawfully present in the united states, including but not limited to individuals granted deferred action for childhood arrivals relief or similar relief from deportation.” 100 n.y. comp. codes r. & regs. tit. 8, § 80-1.3 (2017) “notwithstanding any other provision this part to the contrary, no otherwise qualified applicant shall be denied a certificate under this part, or registration pursuant to this title by reason of his or her citizenship or immigration status, unless such applicant is otherwise ineligible for a professional license under 8 usc section 1621 or any other applicable federal law. provided, however that pursuant to 8 usc section 1621(d), no otherwise qualified alien shall be precluded from obtaining a professional license under this title if an individual is not unlawfully present in the united states, including but not limited to applicants granted deferred action for childhood arrivals relief or similar relief from deportation.” it also states that: (b) the requirements of subdivision (a) of this section shall not preclude a candidate who is not a citizen of the united states from qualifying for a permit or other authorization to teach in the public schools of new york state, in accordance with specific provisions of the education no. 2:33] professional licensing and teacher certification 55 e. the non-citizen categories eligible for licensing and certification the regulations provide that no otherwise qualified alien shall be precluded if the individual is not unlawfully present in the united states, including but not limited to applicants afforded daca, or similar relief from deportation.101 a response to a comment clarified that those with similar relief include non-citizens who are prucol.102 the regulations also provide that non-citizens designated as “qualified aliens,” 103 nonimmigrants 104 , and non-citizens paroled for less than one year 105 under federal law are eligible for licensing. 106 new york thereby considers all these categories of non-citizens as lawfully present in the state.107 law that authorize such teaching service by a candidate who is not a citizen of the united states, such as section 3005 of the education law. section 3005 of the education law allows non-citizens from other states or countries in an exchange program with new york state teachers to be certified or registered in new york. 101 see also new york state education department, office of teaching initiatives, citizenship/immigration status, http://www.highered.nysed.gov/tcert/certificate/citizenshipreq.html. 102 memorandum from douglas e. lentivech to professional practices committee & higher education committee (may 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 103 8 u.s.c. § 1641 (2012). 104 8 u.s.c. § 1101(a)(15) (2012). 105 8 u.s.c. § 1182(d)(5) (2012). 106 8 u.s.c. § 1621 (2012). 107 new york also considers dacas as lawfully present for purposes of in-state tuition and eligible as residents of the state. see the city university of new york, university tuition &fee manual, iv residency, part 1, qualifying immigration statuses, 6 http://www2.cuny.edu/about/administration/offices/legal-affairs/universitytuition-fee-manual/iv-residency/ new york, like a number of other states, has statutes that make persons who have graduated from high school in new york eligible for in-state tuition even if they are not lawfully present in the state. n.y. educ. law §§ 355(2)(h)(8); 6206(7)(a), (a-1); 6301(5). these statutes are a reaction to a federal statute that requires states to afford in-state tuition to any citizen if it provides in-state tuition to an 56 columbia journal of race and law [vol. 8:1 1. deferred action for childhood arrivals (“daca”) the department of homeland security afforded daca for some non-citizens who entered the country when children through a 2012 memorandum by the secretary of homeland security.108 daca is a form of deferred action; deferred action has been available to non-citizens for many alien who is not lawfully present on the basis of state residency. 8 u.s.c. § 1623(a) (2012). however, as dacas are lawfully present this restriction does not apply to them and they can be afforded in-state tuition as state residents. but, not all states have agreed and there have been court challenges on the issue. see, e.g., adhiti bandlamudi, daca students argue for in-state tuition to ga. court of appeals, wabe 90.1, jun 16, 2017, http://news.wabe.org/post/daca-students-argue-state-tuition-gacourt-appeals; see also institute for higher education law and governance, univ. hous. l. c., immigration litigation in higher education and challenges to daca program (2004-2015) immigrationrelated challenges to financial aid/residency, including daca, http://www.law.uh.edu/ihelg/daca/immigration-litigation.asp there has also been some controversy regarding daca eligibility for drivers’ licenses as persons who are lawfully present. see national immigration law center, access to driver’s licenses for immigrant youth granted daca, https://www.nilc.org/issues/drivers-licenses/daca-anddrivers-licenses/ and arizona dream act coalition v. brewer, 855 f.3d 957 (9th cir. 2017). 108 memorandum from the janet napolitano, sec’y of homeland security, exercising prosecutorial discretions with respect to individuals who came to the united states as children (jun. 15, 2012). http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf; consideration of deferred action for childhood arrivals process, dep’t of homeland sec., u.s. citizenship and immigration servs., http://www.uscis.gov/humanitarian/consideration-deferred-actionchildhood-arrivals-daca#guidelines; frequently asked questions, dep’t of homeland sec., u.s. citizenship and immigration servs. (jan. 18, 2013), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6 a7543f6d1a/?vgnextoid=3a4dbc4b04499310vgnvcm100000082ca60arcr d&vgnextchannel=3a4dbc4b04499310vgnvcm100000082ca60arcrd (last visited july 11, 2013). for an analysis and critique of daca, see michael a. olivas, dreams deferred: deferred action, prosecutorial discretion, and the vexing case(s) of dream act students (june 11, 2012). william & mary bill of rights journal, vol. 21, 2012. no. 2:33] professional licensing and teacher certification 57 years.109 any period of time in deferred action qualifies as a period of stay authorized by the secretary of homeland security. further, there is a long-standing federal regulation that allows employment authorization to those with deferred action. 110 the uscis reported that as of september 4, 2017 there were 689,800 active dacas in the united states, 197,900 in california, and 32,900 in new york.111 the department of homeland security through united states citizenship and immigration services (“uscis”), issued guidelines for daca applicants. 112 applicants had to have been under the age of 31 as of june 15, 2012, have come to the united states before age 16, lived in the united states continuously since june 15, 2007, and have graduated from or be currently enrolled in school, received a general education development (ged) certificate, or have been honorably discharged from the military. daca applicants cannot have been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, or otherwise pose a threat to national security or public safety. additionally, all applicants had to provide biometrics 109 see charles gordon, stanley mailman, stephen yaleloehr, and ronald y. wada, immigration law and procedure (matthew bender, rev. ed.). see also shoba sivaprasad wadhia, beyond deportation: the role of prosecutorial discretion in immigration cases (2015). 110 8 c.f.r. § 274a.12(c) (14). 111 approximate active daca recipients: state of residence as of september 4, 2017, uscis.gov, https://www.uscis.gov/sites/default/files/uscis/resources/reports%20and %20studies/immigration%20forms%20data/all%20form%20types/daca /daca_population_data.pdf. 112 dep’t of homeland sec., consideration of deferred action for childhood arrivals process, u.s. citizenship and immigration servs., (jan. 18, 2013), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6 a7543f6d1a/?vgnextoid=f2ef2f19470f7310vgnvcm100000082ca60arcrd &vgnextchannel=f2ef2f19470f7310vgnvcm100000082ca60arcrd#guidel ines. 58 columbia journal of race and law [vol. 8:1 and undergo background checks.113 daca was granted for two years and could be renewed. during this time those granted daca are not removable from the united states based on immigration status.114 they are eligible for authorization to work115 and can receive an “employment authorization document.” 116 they are then issued social security numbers.117 in september of 2017, the secretary of homeland security rescinded the 2012 daca memorandum, 118 following the trump administration announcement that it is 113 dep’t of homeland sec., u.s. citizenship and immigration servs., instructions for consideration of deferred action for childhood arrivals, uscis form i-821d, available at http://www.uscis.gov/files/form/i-821dinstr.pdf. 114 memorandum from the janet napolitano, sec’y of homeland security, exercising prosecutorial discretions with respect to individuals who came to the united states as children (jun. 15, 2012). http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf. 115 the employment provisions of the immigration law target employers for sanction, rather than employees. the provisions prohibit an employer from hiring an individual as an employee to work in the u.s. if the employer knows or has reason to know that the individual is unauthorized to work in the u.s. 8 u.s.c. § 1324(a)(1) (2012). 116 “q2: what is deferred action for childhood arrivals (daca)? a2: on june 15, 2012, the secretary of homeland security announced that certain people who came to the united states as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.” frequently asked questions, dep’t of homeland sec., u.s. citizenship and immigration servs. (jan. 18, 2013), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6 a7543f6d1a/?vgnextoid=3a4dbc4b04499310vgnvcm100000082ca60arcr d&vgnextchannel=3a4dbc4b04499310vgnvcm100000082ca60arcrd. 117 soc. security admin, social security number—deferred action for childhood arrivals, available at http://www.socialsecurity.gov/pubs/deferred_action.pdf. 118 memorandum from elaine c. duke, acting dhs secretary, memorandum on rescission of deferred action for childhood arrivals (daca), dhs.gov, https://www.dhs.gov/news/2017/09/05/memorandumrescission-daca (september 5, 2017). no. 2:33] professional licensing and teacher certification 59 phasing out daca. 119 daca will continue for approved individuals until their current daca permission expires. those whose daca permission will expire before march 5, 2018 can apply for an extension by making an application before october 5, 2017. pending applications for daca continued to be considered, but no new applications were processed.120 however, president trump’s official statement affirmed, “i have advised the department of homeland security that daca recipients are not enforcement priorities unless they are criminals, are involved in criminal activity, or are members of a gang.”121 furthermore, uscis has a policy that it will not refer information obtained from daca applications to immigration enforcement agencies except to address national security, public safety, serious criminal activity, or fraud.122 119 deferred action for childhood arrivals 2017 announcement, uscis, https://www.uscis.gov/daca2017 (last updated sept. 5, 2017). 120 frequently asked questions: rescission of deferred action for childhood arrivals (daca), https://www.dhs.gov/news/2017/09/05/frequently-asked-questionsrescission-deferred-action-childhood-arrivals-daca (last published sept. 5, 2017). 121 the white house, statement from president donald j. trump, sept. 5, 2017 https://www.whitehouse.gov/the-pressoffice/2017/09/05/statement-president-donald-j-trump 122frequently asked questions: rescission of deferred action for childhood arrivals (daca), https://www.dhs.gov/news/2017/09/05/frequently-asked-questionsrescission-deferred-action-childhood-arrivals-daca (last published sept. 5, 2017) “ q7: once an individual’s daca expires, will their case be referred to ice for enforcement purposes? a7: information provided to uscis in daca requests will not be proactively provided to ice and cbp for the purpose of immigration enforcement proceedings, unless the requestor meets the criteria for the issuance of a notice to appear or a referral to ice under the criteria set forth in uscis’ notice to appear guidance (www.uscis.gov/nta). “ uscis, policy memorandum, revised guidance for the referral of cases and issuance of notices to appear (ntas) in cases involving inadmissible and removable aliens, november 7, 2011, https://www.uscis.gov/sites/default/files/uscis/laws/memoranda/static_f iles_memoranda/nta%20pm%20%28approved%20as%20final%2011-711%29.pdf. 60 columbia journal of race and law [vol. 8:1 there is some potential for the continuation of daca or an alternative that provides immigration status for those who came to the united states as children. several cases have challenged the rescission of daca, 123 including lawsuits brought by the attorneys general of new york124 and california. 125 they assert that the rescission is unconstitutional and violates the administrative procedure act, among other claims. also, legislation has been proposed that would afford those who came to the united states as 123 there are two cases in new york: compl. for declaratory and injunctive relief, new york v. donald trump, no. 17-cv-5228 (e.d.n.y. sept. 6, 2017) https://ag.ny.gov/sites/default/files/new_york_et_al._v._trump_et_al__17cv5228.pdf; letter from michael j. wishnie to judge nicholas g. garaufis re: batalla vidal et al. v. baran et al., no. 1:16-cv-04756 dated sept. 5, 2017 https://t.co/tdscovtf6u?amp=1; there are four cases in california: compl. for declaratory and injunctive relief, the regents of the university of california v. u.s. dep’t of homeland security, no. 3:17-cv-05211 (n.d. cal. sept. 8, 2017) https://t.co/rtxwjaugeb?amp=1; compl. for declaratory and injunctive relief, california v. u.s. dep’t of homeland security (n.d. cal. sept. 11, 2017) https://t.co/7qua5nykbg?amp=1; compl. for violation of fifth amendment equal protection and violation of 5 u.s.c. §§ 553 & 706(2)(d), city of san jose v. u.s., no. 5:17-cv-05329 (n.d. cal. san jose div., sept. 14, 2017); compl. for declaratory and injunctive relief, dulce garcia v. u.s., 3:17-cv-05380 (n.d. cal. san fran. div., sept. 18, 2017) https://www.scribd.com/document/359320225/dulce-garcia-et-al-vunited-states-et-al 123 sixteen state attorney generals joined together in a lawsuit filed in the u.s. district court for the eastern district of new york. https://ag.ny.gov/press-release/ag-schneiderman-files-lawsuit-protectdreamers-and-preserve-daca; https://ag.ny.gov/sites/default/files/new_york_et_al._v._trump_et_al__17cv5228.pdf. 124 sixteen state attorney generals joined together in a lawsuit filed in the u.s. district court for the eastern district of new york. https://ag.ny.gov/press-release/ag-schneiderman-files-lawsuit-protectdreamers-and-preserve-daca; https://ag.ny.gov/sites/default/files/new_york_et_al._v._trump_et_al__17cv5228.pdf 125 compl. for declaratory and injunctive relief, california v. u.s. dep’t of homeland security (n.d. cal. sept. 11, 2017) https://t.co/7qua5nykbg?amp=1. no. 2:33] professional licensing and teacher certification 61 children a pathway to a regular immigration status. 126 president trump has tweeted that if congress does not legalize daca in six months, he will revisit the issue.127 2. permanently residing under color of law (“prucol”) the new york memorandum responding to comments on proposed regulations clarified that non-citizens who are prucol, are eligible for licensing and teacher certification. 128 prucol is a term in new york court decisions, 129 regulations 130 and administrative 126 dream act of 2017, s. 1615, 115th cong. (2017-2018), https://www.congress.gov/bill/115th-congress/senate-bill/1615/text; dream act of 2017, h.r. 3440, 115th cong. (2017), https://www.congress.gov/bill/115th-congress/house-bill/3440/text; american hope act of 2017, h.r. 3591, 115th cong. (2017-2018), https://www.congress.gov/bill/115th-congress/house-bill/3591/text?r=1. 127 donald j. trump (@realdonaldtrump), twitter (sept. 5, 2017, 5:38 pm), https://twitter.com/realdonaldtrump/status/905228667336499200. glenn thrush and maggie haberman, to allies’ chagrin, trump swerves left, n.y. times: politics news analysis, https://www.nytimes.com/2017/09/06/us/politics/trump-democratsdeal.html (sept. 6, 2017); donald j. trump (@realdonaldtrump), twitter (sept. 14, 2017, 3:28 am) https://twitter.com/realdonaldtrump/status/908276308265795585; peter jacobs and bryan logan, 'if we don't have the wall, we're doing nothing': trump pushes back on intense criticism over dealing with democrats on immigration, sep. 14, 2017 http://www.businessinsider.com/trump-tweetsno-deal-on-daca-2017-9. 128 memorandum from douglas e. lentivech & john l. d’agati to board of regents professional practice committee, higher education committee (may 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 129 see, e.g., holley v. lavine, 553 f.2d 845 (2d cir. 1977) cert. denied sub nom., shang v. holley, 435 u.s. 947 (1978); aliessa v. novello, 96 n.y.2d 418 (2001); papadopoulos v. shang, 67 a.d.2d 84 (1st dep’t 1979); brunswick hosp. center, inc. v. daines, , 26 misc.3d 1225(a) (2010); tonashka v. weinberg, 178 misc.2d 280 (n.y. sup. ct. 1998); see also janet m. calvo, alien status restrictions on eligibility for federally funded assistance programs, 16 n.y.u. rev. l & soc. change 395 (1988). 62 columbia journal of race and law [vol. 8:1 memorandums. 131 according to the new york court of appeals, the prucol designation is used to classify aliens of whom immigration authorities are aware, but are not deporting.132 new york regulation and directives state that the term includes those who are residing in the united states with the knowledge and acquiescence or permission of federal immigration authorities whose departure the federal agency does not contemplate enforcing.133 a non-citizen is considered an individual whose departure the uscis does not contemplate enforcing if, based on all the facts and circumstances of the particular case, it appears that the uscis is otherwise permitting the immigrant to reside in the united states indefinitely, or it is the policy or practice of the uscis not to enforce the departure of non-citizens in a particular category.134 prucol includes non-citizens who have requested or been granted deferred action, have been paroled into the united states for a period of less than one year, are under an order of supervision, have been granted an indefinite stay of 130 n.y. comp. codes r. & regs. tit. 18, § 360-3.2(j)(ii) (explaining that a person is prucol if such a person is “residing in the united states with the knowledge and permission or acquiescence of the federal immigration agency and whose departure from the u.s. such agency does not contemplate enforcing”). 131 e.g. office of health insurance programs., n.y. state dep’t of health gis 08 ma/009, documentation guide to citizenship and immigrant eligibility for health coverage in new york state http://onlineresources.wnylc.net/pb/docs/08ma009.pdf. 132 aliessa v. novello, 96 n.y.2d 418 at n.2 (2001). 133 n.y. comp. codes r. & regs. tit. 18 § 360-3.2(j)(ii); office of medicaid mgmt., n.y. state dep’t of health, 04 omm/adm-7, citizenship & alien status requirements for the medicaid program 21 (2004; https://www.health.ny.gov/health_care/medicaid/publications/docs/adm/04a dm-7.pdf. 134 office of medicaid mgmt., n.y. state dep’t of health, 04 omm/adm-7, citizenship & alien status requirements for the medicaid program 19 (2004); https://www.health.ny.gov/health_care/medicaid/publications/docs/adm/04a dm-7.pdf. no. 2:33] professional licensing and teacher certification 63 deportation, have been granted indefinite voluntary departure, have an approved immediate relative petition and family members covered by the petition, have properly filed an application for adjustment of status to lawful permanent resident, have been granted deferred enforced departure, entered and continuously resided in the united states before january 1, 1972 (registry eligible), or or have been granted suspension of deportation. it also includes individuals applying for adjustment of status, asylum, or suspension of deportation or cancellation of removal, citizens of the federated states of micronesia and the marshall islands, individuals granted temporary protected status (tps) and those applying for tps, individuals with a k, v, s or u visa or applying for such a visa. it includes any other non-citizen living in the united states with the knowledge and permission or acquiescence of the federal immigration agency and whose departure the agency does not contemplate enforcing.135 new yorkers who have requested deferred action are considered prucol since federal immigration officials have knowledge of and have acquiesced in their presence; those granted daca are prucol because of the immigration authorities’ knowledge of and permission for their presence in the country. 136 even in the event that daca expires and new legislation is not enacted, those with expired daca should continue as prucol; they are new yorkers within the knowledge and acquiescence of immigration officials unless in removal proceedings and 135 office of health insurance programs., n.y. state dep’t of health gis 08 ma/009, documentation guide to citizenship and immigrant eligibility for health coverage in new york state 10 http://onlineresources.wnylc.net/pb/docs/08ma009.pdf; the city of new york, human resources administration/department of social services, guide to health insurance and health care services for immigrants in new york city 7–8 (2016), https://www1.nyc.gov/assets/ochia/downloads/pdf/guide-to-healthinsurance-for-immigrants.pdf; http://www1.nyc.gov/site/immigrants/help/city-services/insurance.page. 136 id. 64 columbia journal of race and law [vol. 8:1 without relief applications pending. 137 immigration authorities have extensive knowledge about each person with expired daca from their applications and acquiesce to their presence through the policy of generally not referring expired dacas for removal or the actual practice of not initiating removal proceedings against an individual who had daca. 3. non-citizen categories designated under federal law the new york regulations include as eligible for licensing the categories of non-citizens listed as federally eligible for licensing. 138 this statute lists non-citizens designated as “qualified aliens,” 139 nonimmigrants, 140 and non-citizens paroled for less than one year. 141 “qualified aliens” include legal permanent residents, non-citizens granted asylum, refugees, parolees for a year or more, noncitizens for whom deportation has been withheld, conditional entrants, cuban haitian entrants, certain “battered” aliens and applicants or recipients of t visas.142 iv. federalism and equal protection the regulation of occupational licensing is a traditional state function as part of a state’s control over the health, safety and welfare of its residents.143 as such, the 137 id. 138 8 u.s.c. § 1621(a) (2012). 139 8 u.s.c. § 1641 (2012). 140 8 u.s.c. § 1101 (a)(15) (2012). 141 8 u.s.c. § 1182(d)(5) (2012). 142 8 u.s.c. § 1641 (2002). 143 north carolina state board of dental examiners v. federal trade commission, 135 s.ct. 1101, 1110 (2015); douglas v. noble, 261 u.s. 165, 167 (1923); graves v. minnesota, 272 u.s. 425, 427 (1926); jacobson v. massachusetts, 197 u.s. 11, 24–25 (1905); “since colonial times, the regulation of professions has been seen as a state activity in the united states.” milton heumann, et al., prescribing justice: the law and no. 2:33] professional licensing and teacher certification 65 state’s sovereignty is protected by the principles of federalism under the tenth amendment of the united states constitution.144 but in making any distinctions, a state is also subject to the equal protection provisions of the federal constitution and the constitution of the state.145 both california and new york had to confront a federalism issue because of a federal statute that purported to limit state authority in determining the eligibility of noncitizens for professional licensing. 146 california passed a state law the complied with the federal statute’s limits. new york asserted its authority to regulate occupations according to its state constitutional, legislative, and administrative structure. new york’s regulations also had to satisfy equal protection as they made distinctions among categories of noncitizens. since california’s statute afforded eligibility for professional licensing without regard to immigration category, an equal protection issue was not raised. a. federalism both california and new york confronted a federal statute, 8 u.s.c. § 1621, which purported to restrict the ability of states to afford professional licensing to noncitizens. section 1621 is part of the personal responsibility and work opportunity reconciliation act (“prwora”). congress enacted prwora in 1996. prwora was a reform initiative designed to change means-tested government welfare. 147 title iv of prwora, which includes section 1621, addresses welfare benefits for aliens.148 the goals of politics of discipline for physician felony offenders, 17 b.u. pub. int. l.j. 1, 5 (2007). 144 see new york v. united states, 505 u.s. 144 (1992); north carolina state board of dental examiners v. federal trade commission, 135 s.ct. 1101 (2015). 145 see, e.g., aliessa v. novello, 96 n.y.2d 418, 424–25 (2001). 146 8 u.s.c. § 1621 (2012). 147 aliessa v. novello, 96 n.y.2d 418, 424–25 (2001). 148 8 u.s.c. § 1611 (2012). 66 columbia journal of race and law [vol. 8:1 this title, as stated in the statute, were to promote selfsufficiency of aliens, and to discourage aliens from immigrating to the united states to receive welfare.149 the statute was focused on limiting means-tested welfare benefits and promoting economic self-sufficiency, 150 not on preventing access to work and licenses. 151 none of the related congressional reports mention professional licensing.152 yet, buried within the statute’s definition of a state public benefit is reference to a professional license “provided by an agency of a state or local government or by appropriated funds of a state or local government.”153 the legislative reports do not explain why state professional licenses, which would promote self-sufficiency, are included. section 1621 attempts to impose federal limitations on state-only, fully state-financed, benefits, 154 thus raising issues of state sovereignty over areas that are within a state’s province. section (a) provides that a non-citizen is not eligible for state professional licensing unless the non-citizen is a “qualified alien,” a nonimmigrant, or an alien who is paroled into the united states for less than one year. 155 149 8 u.s.c. § 1601 (2012). 150 “self-sufficiency has been a basic principle of united states immigration law since this country’s earliest immigration statutes . . . it continues to be the immigration policy of the united states that . . . aliens within the nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities . . . .” 8 u.s.c. § 1601(1) (2012). 151 110 stat. 2105–2355; see in re garcia, 315 p.3d 117, 125–26 (cal. 2014). 152 see h.r. rep. no. 104-651, at 6 (1996), reprinted in 1996 u.s.c.c.a.n. 2183, 2187; h.r. rep. 104–651, at 1445 (1996), reprinted in 1996 u.s.c.c.a.n. 2183, 2504. 153 8 usc § 1621(c) (2012); subsection (c) defines, in relevant part, state or local benefits as, “any grant, contract, loan, professional license, or commercial license provided by an agency of a state or local government or by appropriated funds of a state or local government.” 154 aliessa v. novello, 96 n.y.2d at 426. 155 8 u.s.c. § 1621(a) (2012). no. 2:33] professional licensing and teacher certification 67 thus, section (a) purports to allow states to afford professional licensing to some non-citizens who only have limited short term federal permission to be in the country, such as those on visitors’ visas, and those with parole for less than a year, and to some nonimmigrants, such as visitors, who have no authorization to work. section 1621 (d), however, conveys recognition of state authority. section (d) is entitled, “state authority to provide for eligibility of illegal aliens for state and local public benefits.” it states: a state may provide that an alien who is not lawfully present in the united states is eligible for any state or local public benefit for which such alien would otherwise be ineligible under subsection (a) only through the enactment of a state law after august 22, 1996 which affirmatively provides for such eligibility.156 this section demonstrates that while congress suggested limiting professional licensing access for some aliens, it recognized that each state had the authority to make its own decisions about the inclusion of non-citizens, even those designated as “illegal.” however, the statute appears to erroneously assume that all non-citizens residing in the country under federal permission or acquiescence are mentioned in section (a). but, section (a) does not include all non-citizens who are employment authorized pursuant to federal statute and regulation or whose presence in the country has either have federal permission or acquiescence. there are several categories of non-citizens that are not included in section (a) who have permission or acquiescence to be in the country through statute, regulation or administrative directives or 156 8 u.s.c. § 1621(d) (2012). 68 columbia journal of race and law [vol. 8:1 practice.157 further, there are numerous categories of noncitizens that are not included in section (a) who are afforded employment authorization through regulation.158 section (d) therefore has to be interpreted to recognize state authority to afford licensing to categories of non-citizens in the country pursuant to federal permission or acquiescence that are not included in section (a) in addition to those designated as “illegal” or “not lawfully present.” otherwise, congress would be purporting to give states authority to allow professional licenses to “illegal” aliens, but not to all those non-citizens who reside in the state through federal permission or acquiescence. section 1621(d) therefore appears to be the operative provision that indicates the congressional objective of allowing state professional licensing to non-citizens who both have and do not have federal authorization to reside in a state, despite the limits of section (a). however, section (d) significantly constrains and coerces states by requiring that they regulate professional licensing, an area of traditional state authority, only through legislation, and only by legislation that is passed after a certain date, and that has particular language.159 california responded to this federal statute and exercised its state authority. but it did so by enacting a state statute that complied with (d). the california statute specifically states that it is enacted pursuant to subsection (d) of section 1621 of title 8 of the united states code.160 the new york board of regents and department of education responded to section 1621 by maintaining the authority over licensing established under state law. they 157 supra, part ii. e. 2. prucol, permanently residing under color of law. 158 8 c.f.r. § 274a.12(c). 159 8 usc § 1621(d) (2012). 160 cal. bus. & prof. code § 135.5(a). no. 2:33] professional licensing and teacher certification 69 asserted new york’s sovereignty over licensing as a traditional area left to the states. they implemented the new york legislative authority and administrative process over licensing and teacher certification. through the regents and the department of education, new york state authorized licensing through regulation. in doing so, the regents and the department asserted state sanctioned administrative authority. the department asserted the board’s statutory authority to adopt regulations regarding licensure and teacher certification under state law.161 under new york state law the board of regents has been granted broad authority to supervise admission to the professions.162 the commissioner of education has broad statutory authority to administer admission to the professions 163 and to adopt relevant regulations subject to board of regents approval.164 further, the commissioner of education has explicit state statutory authority to adopt regulations regarding teacher certification for non-citizens.165 the department also pointed to the reasoning of a new york court decision regarding bar membership.166 in the vargas case, the second department found that a reading of 1621 (d) that required state legislation as the sole mechanism to opt out of the restrictions imposed by 1621 (a) unconstitutionally infringed on new york’s sovereign authority under the tenth amendment to the united states constitution.167 the court held that the processes through 161 n.y. educ. law §§ 3001, 3003, (mckinney 2015) 6501, 6506 (mckinney 2016). 162 n.y. educ. law §§ law 207, (mckinney 2009) 6506 (mckinney 2016). 163 n.y. educ. law § 6507 (mckinney 2016). 164 n.y. educ. law § 207 (mckinney 2009). 165 n.y. educ. law § 3001(3) (mckinney 2015). 166 matter of vargas, 131 a.d. 3d 4 (app. div. 2nd 2015). 167 memorandum to board of regents professional practice committee, higher education committee, may 9, 2016, http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 70 columbia journal of race and law [vol. 8:1 which a state choose to exercise the authority granted by federal legislation is not a legitimate concern of the federal government.168 the vargas court relied on united states supreme court decisions to establish the ability of states to structure their governmental decision-making processes as they see fit. it stated, “[t]he constitution has never been understood to confer upon congress the ability to require the states to govern according to congress’ instructions.”169 further, the court noted that the supreme court has affirmed that congress may not “simply commandee[r] the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.”170 the vargas court found that the new york judicial branch of government had authority over bar membership and determined that mr. vargas, a daca recipient, was eligible for admission to practice law in new york. although in a different context, the sovereign control of states over professional licensing is additionally supported by the reasoning in the supreme court’s decision in north carolina state board of dental examiners v. federal trade commission.171 in that case, the supreme court reaffirmed the long-standing sovereign authority of states over the regulation of professional licensing and practice, 172 stating 168 matter of vargas, 131 a.d. 3d 4, 24 (app. div. 2nd 2015). 169 nat’l fed’n of indep. bus. v. sebelius, 132 s.ct 2566, 2602 (2012), citing new york v. united states, 505 u.s. 144, 162 (1992). 170 new york v. united states, 505 u.s. 144, 161 (1992). 171 north carolina state board of dental examiners v. federal trade commission, 135 s.ct. 1101, 1110 (2015). 172 see douglas v. noble, 261 u.s. 165, 167 (1923); graves v. minnesota, 272 u.s. 425, 427 (1926); jacobson v. massachusetts, 197 u.s. 11, 24–25 (1905); milton heumann, et al., prescribing justice: the law and politics of discipline for physician felony offenders, 17 b.u. pub. int. l.j. 1, 5 (2007). no. 2:33] professional licensing and teacher certification 71 that professional licensing is “an undoubted exercise of state sovereign authority.”173 the federal law involved was the sherman antitrust act. as the court explained, the antitrust law has been interpreted to honor state sovereignty and exempt state professional licensing requirements when the requirements were the result of a clear state policy accompanied by active state supervision. the court recognized the import of state sovereignty in this area by noting that even a federal law with essential national economic objectives could not burden the states’ power to regulate.174 despite the national import of the federal antitrust laws, the supreme court stated that the federal laws could not be interpreted to trump state-imposed anticompetitive standards and conduct regarding licensing, as that would undermine the federalism principle of the united states constitution.175 according to the court, state agency action in professional licensing is an exercise of state sovereign power when a state has articulated a clear policy and provides active supervision.176 the court recognized that a state is entitled to its sovereign decisions regarding professional licensing despite federal law when a state supervisor who is not an active market participant reviews 173 north carolina state board of dental examiners v. federal trade commission, 135 s.ct. at 1110. 174 the court stated “federal antitrust law is a central safeguard for the nation’s free market structures. in this regard, it is ‘as important to the preservation of economic freedom and our free-enterprise system as the bill of rights is to the protection of our fundamental personal freedoms.’” 135 s.ct. at 1109. 175 id. at 1110. 176 id. in north carolina state board of dental examiners, the court upheld the ftc’s antitrust challenge because active market participants, i.e., licensed dentists, whose actions were not subject to state supervision, dominated this dental board. the board had declared teeth whitening to be the practice of dentistry and had issued cease and desist letters to non-dentist teeth whiteners without any state agent’s review, rule or regulation. 72 columbia journal of race and law [vol. 8:1 the substance of decisions and has the power to veto or modify the decision to ensure they accord with state law and policy.177 both the new york and california systems have multiple layers of active state supervision. in california, the department of consumers affairs and its boards provide extensive and active state supervision. in new york, active state supervision is through the board of regents and the department of education and its boards. california did not have to confront the state sovereignty issue because its legislation complied with the federal statute. new york confronted the issue because it chose an administrative rather than legislative path. new york’s sovereign authority allowed it to do so. the new york state board of regents is a governmental entity established by the new york state constitution.178 the new york state legislature designates members of the board of regents.179 the regents have special authority over a combination of state education policy, educational institutions and professional licensing.180 new york actively supervises professional licensing. under the guidance of the new york state board of regents, the education department administers and regulates the professions through its office of the professions,181 which is assisted by a state board 182 for each profession. 183 applicants are examined for educational qualifications, 177 id. at 1115–17. 178 new york state constitution, article xi, § 2. (mckinney 2006) 179 n.y. educ. law § 202 (mckinney 2009); see also new york state education department, about the board of regents, http://www.regents.nysed.gov/about. 180 n.y. educ. law §§ 201, 207 (mckinney 2009), 6506 (mckinney 2016). 181 id. 182 new york education department, state boards for the professions, http://www.op.nysed.gov/boards/. 183 n.y. educ. law, title viii (mckinney 2016). no. 2:33] professional licensing and teacher certification 73 required testing and character and fitness according to the regulations set by the rules of the board of regents and the regulations of the commissioner of education.184 further, the board of regents has enacted rules, policies and disciplinary procedures for professional misconduct.185 therefore, in new york, state agency action in professional licensing is an exercise of the state’s sovereign power. the structure of the new york’s governing systems involves state supervisors who are not active market participants, who review the substance of decisions, and who have the power to veto or modify decisions to ensure they accord with state law and policy. new york state has chosen through its constitution and legislature to establish government entities with authority over an interrelated combination of education, educational institutions and professional licensing. under the principles of federalism, the federal government cannot undermine the state’s decision-making process by coercing or commandeering the board of regents and department of education structure and authority by imposing federal licensing criteria. there is more reason not to impose federal restrictions based on 8 u.s.c. § 1621 than to not impose antitrust restrictions. unlike the sherman act’s strong national antitrust policy, section 1621 does not set forth a uniform national policy. in aliessa v. novello,186 the new 184 id.; see also new york state education department, regulations of the commissioner of education, http://www.op.nysed.gov/title8/opregs.htm; new york state education department, rules of the board of regents, http://www.op.nysed.gov/title8/oprules.htm. 185 id. at parts 29 and 31; n.y. educ. law §§ 6507, 6508, 6509 (mckinney 2016); new york state education department, new york’s professional misconduct enforcement system, http://www.op.nysed.gov/opd/. 186 aliessa v. novello, 96 n.y.2d 418 (2001). 74 columbia journal of race and law [vol. 8:1 york court of appeals found that section 1621 and other sections of the prwora did not reflect a uniform policy, but, rather, “potentially wide variation based on localized or idiosyncratic concepts . . . .”187 the court in vargas similarly found that in light of the opt-out provision of 1621(d), the federal statute does not constitute a comprehensive ban on state action.188 new york’s assertion of its state sovereign control over the state’s established process for professional licensing opens the door for other states to consider the licensing of non-citizens pursuant to their particular state’s structure. this approach frees a state from a federal attempt to control the process and timing of state criteria for professional licensing. b. equal protection in promulgating its new rules, the new york department of education and the regents considered that restrictions on licensing non-citizens could violate equal protection.189 california did not address this issue because it passed legislation that treated all applying for licensing equally regardless of citizenship or immigration status.190 both the new york court of appeals 191 and the second circuit192 found that new york state’s discrimination among categories of non-citizens violates equal protection 187 id. at 435. 188 matter of vargas, 131 a.d. 3d at 23. 189 memorandum to board of regents professional practice committee, higher education committee, may 9, 2016, http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 190 cal. bus. & prof. code § 135.5 (west 2012). 191 aliessa v. novello, 96 n.y.2d 418 (2001). 192 dandamudi v. tisch, 686 f.3d 66 (2012) (citing graham v. richardson, 403 u.s. 365, 372 (1971)) (holding that aliens are considered a suspect class and applying strict scrutiny to find a new york state statute that prohibited employment authorized aliens from working as pharmacists unconstitutional). no. 2:33] professional licensing and teacher certification 75 unless justified by a compelling state interest with regard to medicaid and professional licensing.193 a compelling state interest was not found in either case for distinctions among categories of non-citizens. however, with regard to public school teachers, the united states supreme court found that a state requirement of citizenship could be justified only by a reasonable relationship to a legitimate government purpose because teaching was a governmental function.194 the new york court of appeals found that strict scrutiny applies to state laws affecting non-citizens of whom federal immigration officials are aware but are not deporting.195 in aliessa v. novello196 the new york court of appeals concluded that a new york statute that afforded medicaid to certain categories of non-citizens in the united states with the knowledge of federal immigration authorities, but not to others, violated the equal protection clauses of the united states and new york state constitutions. the court of appeals analyzed the equal protection claim by applying strict scrutiny, thereby requiring that the statute further a compelling state interest by the least restrictive means.197 in aliessa, new york state argued that the state statute was constitutional in that it did only what the federal statute authorized it to do with regard to federal immigration policy. the court rejected this assertion and 193 in this conclusion, both the court of appeals and the second circuit significantly relied on the supreme court’s decision and analysis in graham v. richardson, 403 u.s. 365, 382 (1971). for a discussion of other cases rejecting or upholding restrictions on access to occupations based on immigration status, see generally jennesa calvo-friedman, the uncertain terrain of state occupational licensing laws for noncitizens: a preemption analysis, 102 geo. l.j. 1597 (2014). 194 ambach v. norwick, 441 u.s. 68 (1979). 195 aliessa, 96 n.y.2d at 430. the non-citizens included those in various categories that met the criteria for prucol, permanently residing under color of law. id at 422 n.2. 196 id. at 418. 197 id. 76 columbia journal of race and law [vol. 8:1 stated, “given our system of separation of powers, a lawmaking body may not legislatively declare that a statute meets constitutional criteria.” 198 the court held that a federal statute cannot constitutionally authorize new york to determine the extent to which it will discriminate against non-citizens. quoting graham v. richardson,199 the court stated, “congress does not have the power to authorize the individual states to violate the equal protection clause.”200 the new york court of appeals found that the federal law upon which the state relied did not constitute a uniform federal policy to distinguish among aliens. 201 the court stated, “[i]n the name of national immigration policy, [title iv of prwora including section 1621] impermissibly authorizes each state to decide whether to disqualify many otherwise eligible aliens from state medicaid.” 202 in the court’s decision, categories of non-citizens that are not listed under section 1621(a) were included among those unconstitutionally denied state benefits.203 in dandamudi v. tisch, 204 the second circuit held unconstitutional a new york statute that restricted professional licenses to only citizens or legal permanent residents. the second circuit determined that discriminating among categories of employment-authorized aliens was not supported by any compelling state interest and therefore violated equal protection. 205 the statute’s restrictions were challenged by non-citizens in temporary 198 id. at 432, n.14. 199 graham v. richardson, 403 u.s. 365, 382 (1971). 200 aliessa, 96 n.y.2d at 434. some courts in other states agreed with aliessa’s analysis; some did not. see stephen loffredo & helen hershkoff, tough times and weak review: the 2008 economic meltdown and enforcement of socio-economic rights in us state courts 234 (aoife nolan, ed., cambridge univ. press, 2014). 201 aliessa, 96 n.y.2d at 426, 435, citing 8 usc § 1621(d). 202 id. at 436. 203 id. at 422 n.2. 204 dandamudi, 686 f.3d at 66. 205 id. at 70. no. 2:33] professional licensing and teacher certification 77 immigration categories including h–1b206 and tn canadians who sought pharmacist licenses.207 non-citizens in the h category are classified under the provision of the immigration law that defines nonimmigrants.208 however, those non-citizens in the tn category are not included in this definition.209 the tn category is established pursuant to the north american free trade agreement (“nafta”).210 the second circuit applied an equal protection analysis under the fourteenth amendment to the united states constitution. the court stated, “(t)here is no question that the fourteenth amendment applies to all aliens.”211 it determined that discrimination against non-citizens who were allowed to reside and work in the united states temporarily was subject to strict scrutiny and that the new york statute was not narrowly tailored to further a compelling government interest.212 in doing so, the second circuit disagreed with a decision of the fifth circuit that 206 8 u.s.c. § 1101(a)(15)(h)(i)(b) (2017) (stating that h–1b visas may be given to aliens who come “[t]emporarily to the united states to perform services . . . in a specialty occupation.”). 207 dandamudi, 686 f.3d at 71 n.6 (noting that “similar provisions of the n.y. educ. law preclude non-legal permanent resident aliens from other professions.”). 208 8 u.s.c. § 1101(a)(15)(h)(i)(b) (2017). 209 8 u.s.c. § 1101(a)(15) (2017). 210 dandamudi, 686 f.3d at 70 (citing 8 c.f.r. § 214.6(a)). 211 id. at 72 (citing plyler v. doe, 457 u.s. 202, 215 (1982)); see also yick wo v. hopkins, 118 u.s. 356, 369 (1886). 212 dandamudi, 686 f.3d at 80. the court also held that the new york state law was preempted by federal immigration law and unconstitutional under the supremacy clause. the state statute stood as an obstacle to the accomplishment and execution of the full purposes and objectives of congress (i.e. providing work capacity to non-citizens) by imposing an additional burden not sanctioned by congress; see also dingemans v. bd. of bar examiners, 568 a.2d 354 (vt. 1989) (bar practice rule that denied law license based on alienage was preempted because it imposed additional burdens not contemplated by the federal immigration regulatory scheme). see jennesa calvo-friedman, the uncertain terrain of state occupational licensing laws for noncitizens: a preemption analysis, 102 geo. l. j. 1597 (2014) (discussing preemption in professional licensing for non-citizens). 78 columbia journal of race and law [vol. 8:1 had applied a rational relationship test to distinctions among categories of non-citizens and upheld louisiana’s requirement that an individual had to be a citizen or legal permanent resident for admission to its bar.213 the second circuit responded to new york state’s asserted interest in protecting against the transience of noncitizens who were not permanent residents. the court stated that citizenship and permanent resident status does not guarantee that a professional will remain in the state or the country or have the necessary skill for the profession or have available funds in case of malpractice.214 in the court’s view, there are other ways to limit a danger to the public of transient professionals, such as requiring malpractice insurance.215 further, the second circuit rejected the argument that federal law contemplates allowing states to deny eligibility for licenses based on non-citizen category. the court stated that the federal law just recognizes that states have a legitimate interest in ensuring that a professional license applicant has the necessary educational and experiential qualifications for that profession. however, the state’s acceptable police power over licensing cannot “morph under the supremacy clause into a determination that a certain subclass of immigrants is not qualified for licensure merely because of their immigration status.”216 the second circuit did not mention 8 u.s.c. § 1621 in its analysis. the court did not need to do so because, as stated by the supreme court, “congress does not have the power to authorize the individual states to violate the equal 213 leclerc v. webb, 419 f.3d 405, 415 (5th cir. 2005), reh’g en banc denied, 444 f.3d 428 (2006), cert. denied, 551 u.s. 1158 (2007). 214 dandamudi, 686 f.3d at 79. 215 id. (citing flores de otero, 426 u.s. 572, 606 (1976)). 216 dandamudi, 686 f.3d at 80 (citing adusumelli v. steiner, 740 f.supp.2d 582, 600 (s.d.n.y. 2010)). no. 2:33] professional licensing and teacher certification 79 protection clause.”217 under the reasoning in dandamudi, the limitations in § 1621 violate equal protection as to discrimination among employment-authorized non-citizens. the immigration and nationality act (“ina”) gives the executive the authority to authorize employment in the united states of non-citizens who are specifically authorized to be employed by the ina, and, additionally, to other noncitizens.218 employment authorization affords non-citizens authority to work in the united states for employers in the united states. the federal regulation affords employment authorization to a number of classifications of non-citizens, some within a status designation in the ina, and some otherwise authorized.219 specifically, the second circuit held that denying licenses to non-citizens in the tn category violated equal protection.220 the tn category is established pursuant to nafta 221 and affords work authorization. 222 the tn category is not included in § 1621(a) because tn is not included in 8 u.s.c. § 1101(a)(15), the section that defines nonimmigrants.223 thus, the holding in dandamudi applies to non-citizens with employment authorization who would be barred from professional licensing by 1621. the reasoning of both the second circuit and the new york court of appeals support the conclusion that new york state cannot discriminate against categories non-citizens by asserting that some federal law requires it. discrimination against these non-citizens by new york state is subject to strict scrutiny analysis and violates the equal protection clauses of the new york and the united states constitution unless justified by a compelling state interest. 217 graham, 403 u.s. at 382. see also aliessa, 96 n.y.2d at 434. 218 8 u.s.c. § 1324a(h)(3)(b) (2012). 219 8 c.f.r. § 274a.12. 220 dandamudi, 686 f.3d at 66. 221 dandamudi, 686 f.3d at 70 (citing 8 c.f.r. § 214.6(a)). 222 united states citizenship and immigration services, tn nafta professionals, https://www.uscis.gov/working-unitedstates/temporary-workers/tn-nafta-professionals. 223 8 u.s.c. § 1101(a)(15) (2017). 80 columbia journal of race and law [vol. 8:1 however, even under the more minimal criteria, the rational relationship test, discrimination against noncitizens residing in the country pursuant to administrative discretion would violate equal protection. in arizona dream act coalition v. brewer, 224 a panel of the ninth circuit determined that a preliminary injunction could be granted against arizona’s policy of discrimination among non-citizens by denying drivers’ licenses to daca holders who had employment authorization documents while affording them to other non-citizens with employment authorization documents. the court stated the distinction was “likely to fail even rational basis review” and further, “[w]e discern no rational relationship between defendants’ policy and a legitimate state interest.”225 the district court then entered a permanent injunction on preemption grounds,226 which was upheld by the ninth circuit.227 after the denial of a petition for a re-hearing en banc, that ninth circuit opinion was amended. 228 in the amended decision the ninth circuit stated, “arizona’s disparate treatment of daca recipients may well violate the equal protection clause,” and that the defendants attempted to distinguish among categories of non-citizens with employment authorization documents “in a way that does not amount to any relevant difference.” yet the court decided to affirm the district court’s decision on grounds of preemption, not equal protection.229 equal protection concerns were relevant in new york, because prior to the new regulations, the new york 224 757 f.3d 1053 (9th cir. 2014). 225 id. at 1065. 226 arizona dream act coalition v. brewer, 81 f.supp.3d 795 (d. ariz. 2015). 227 arizona dream act coalition v. brewer, 818 f.3d 901 (9th cir. 2016). 228 arizona dream act coalition v. brewer, 855 f.3d 957 (9th cir. 2017). 229 id. a petition for writ of certiorari was filed, brewer v. arizona dream act coalition, 2017 wl 1192142. no. 2:33] professional licensing and teacher certification 81 department of education had administratively imposed limitations on professional licensing for non-citizens based on the category distinctions made by 8 u.s.c. § 1621(a), 230 thereby including non-citizens in some categories while excluding other non-citizens in similarly situated categories. these distinctions were not supported by a compelling state interest and were irrational. the distinctions allowed professional licensing to certain non-immigrants with shortterm permission to be in the united states and no employment authorization, while denying licenses to those with employment authorization and long-term presence in the state. for example, licensing was afforded to certain non-immigrants such as those with h or e visas231 but not to other non-citizens in comparable immigration categories that also allow non-citizens’ presence and authorized employment in the united states. these additional categories include the tn category, temporary protected status (tps),232 daca, and non-citizens under the convention against torture.233 these are all categories that provide temporary permission to work and be in the united states. further, the distinctions irrationally allowed licensing to short-term nonimmigrants such as those with visitors’ visas 234 while excluding non-citizens with years-long presence from eligibility for licenses, such as non-citizens in categories that are designated as prucol. the new new york professional licensing criteria reflects the equal protection decisions in the new york court of appeals and the second circuit to the extent that 230 see memorandum to bd. of regents prof’l practice ,comm., higher educ. comm. (may 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 231 8 u.s.c. § 1101(a)(15)(e) (2012). those with e visas are in the country pursuant to various treaties. 232 8 u.s.c. § 1254a (2012); see also u.s. customs and immigration services (october 17, 2017), http://www.uscis.gov/humanitarian/temporary-protected-status-deferredenforced-departure/temporary-protected-status. 233 112 stat. 2681–822 (1998). 234 8 u.s.c. § 1101(a)(15)(b) (2012). 82 columbia journal of race and law [vol. 8:1 licensing is now available to those non-citizens who are not unlawfully present, including those with daca and those who meet prucol criteria. however, the department did not accept that non-citizens should be afforded the opportunity to be licensed if they attended public higher education in new york with in-state tuition.235 there does not appear to be even a rational basis for denying professional licensing to those whose education the state supports through its in-state tuition at public universities. new york state provides for in-state tuition for higher education for its high school graduate non-citizens236 without regard to immigration category, including education for the professions the state licenses. no reason was presented for preventing those non-citizens educated with in-state tuition from professional licensing. the state provides resources to educate non-citizens for professions, but then does not allow them to be licensed in new york for those very same professions, thus depriving the state of the economic and social benefits of their educations. the department also rejected the assertion that the regulations should not impose any restrictions based in immigration status.237 even with regard to non-citizens who do not have a sanctioned presence, there must be, at least, a legitimate rationale for the discrimination.238 the new york state legislature has specifically not imposed any non-citizen category restrictions on licensing for thirty-nine 235 see memorandum to bd. of regents prof’l practice comm., higher educ. comm. (may 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 236 n.y.educ.law §§ 355(2)(h)(8); 6206(7)(a), (a-1); 6301(5). see lauren a. dimartino, the “free college” illusion: how state tuition support programs are widening the opportunity gap, 25 geo. j. on poverty l. & pol’y (forthcoming jan. 2018), for a discussion and critique of financial aid provided for students for higher education including noncitizens. 237 see memorandum to bd. of regents prof’l practice comm., higher educ. comm. (may 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 238 plyler v. doe, 457 u.s. 202 (1982). no. 2:33] professional licensing and teacher certification 83 professions. 239 no state rationale for administratively imposing restrictions on licensing was presented. it is presumed from the language of the regulation affording licensing eligibility to those “not unlawfully present” that the regulations were drawing a distinction between non-citizens with federal acquiescence in their presence in the country and those non-citizens with none. but even for totally undocumented non-citizens, equal protection requires at least a rational relationship to a legitimate articulated state purpose.240 v. comments from the new york regulatory process comments made in the new york regulatory process give insight into the issues underlying licensing of noncitizens.241 a number of the comments addressed the socioeconomic impact of allowing licensing to non-citizen populations, as did positions presented in support of the california legislation.242 individuals, educators, university programs, new york city agencies and the fiscal policy institute made comments in support of new york’s proposed regulations.243 not for profit organizations such as latino justice, the asian american legal defense fund and the new york immigration coalition commented.244 some of the comments in support of the proposed regulations addressed 239 see appendix 2. 240 plyler, 457 u.s. 202. 241 for a review of the comments made and the department of education’s response, see douglas e. lentivech & john l. d’agati, assessment of public comment attachment b, the state education department (may 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 242 id. 243 the summary of the comments in this article is based on a review of the comments that were obtained pursuant to the new york freedom of information law, new york public officers law, article 6, n.y. pub.off. §87 (mckinney 2015). they are on file with the author. the author submitted a comment in support of the proposed regulations. 244 id. 84 columbia journal of race and law [vol. 8:1 the legal issues discussed above.245 many other comments made in support of the new york regulations addressed the social and economic benefits of allowing non-citizens to be licensed and certified as teachers.246 the comments made in opposition predominately focused on a concern about licensing for the members of military families and some general opposition to non-citizens characterized as “illegal.”247 other comments urged that the state would be best served if state licensing and certification requirements focused only on competency qualifications that protected the public health, safety and welfare and did not impose any restrictions based on non-citizen status.248 a. comments in support a number of comments focused on the benefits to new york communities of allowing otherwise eligible non-citizens to be licensed. comments noted that new york state has a significant foreign-born population.249 as of 2014, 22.6 % of the new york population was foreign born, with a diverse population from all regions of the world. non-citizens comprised 45.9% of the foreign-born new york population, over two million people. 250 for example, a comment by several new york city offices,251 (new york city comment) 245 id. for example, the new york civil liberties union, latino justice prldef, and the asian american legal defense and education fund made comments on legal issues. see also lentivech & john l. d’agati, supra note 248 at 19–25. 246 the summary of the comments in this article is based on a review of the comments that were obtained pursuant to the new york freedom of information law, new york public officers law, article 6 and are on file with the author. 247 id. 248 id. 249 id. 250 migration policy institute, state immigration date profiles, new york, http://www.migrationpolicy.org/data/stateprofiles/state/demographics/ny (last visited oct. 22, 2017). 251 nisha agarwal, carmen fariña, mary t. bassett, christopher neale, & w. cyrus garrett, new york city mayor’s office of immigrant affairs, department of education, department of health, office of no. 2:33] professional licensing and teacher certification 85 supported the regulations because they would assist the economic vitality of the city and state, increase economic opportunity for new york residents, and increase the number and diversity of people engaged in vital professions such as education and health care. individuals and other entities made similar comments.252 several comments focused on the regulations’ promotion of the state’s economic interests.253 it was noted that the state has a fiscal interest in assuring that its residents’ skills and talents be put to their best use and that potential economic capacity should not be wasted. licensed professionals have higher incomes and contribute to the state’s economy through tax revenues and general economic spending.254 further, as new york allows in-state college tuition for its high school graduates without regard to immigration status, allowing non-citizens to enter the occupations for which they are educated effectively uses those educational resources to the benefit of the state. 255 moreover, the comments stated that the amendments would increase economic opportunity for new york’s immigrant populations, which would allow them to better support themselves and their families.256 assuring that new york’s non-citizen population can contribute to new york’s economy and be integrated into new york communities are important objectives for the state.257 workforce development and young men’s initiative, http://www1.nyc.gov/assets/immigrants/downloads/pdf/comment_bdofregen tslicensing_final.pdf (last visited oct. 23, 2017). 252 the summary of the comments in this article is based on a review of the comments that were obtained pursuant to the new york freedom of information law, new york public officers law, article 6 and are on file with the author. 253 id. 254 id. 255 id. 256 id. 257 id. the position on economic contribution and integration is supported by the state’s office of new americans. office for new americans, http://www.newamericans.ny.gov/about/about.html (last 86 columbia journal of race and law [vol. 8:1 a number of comments from organizations and individuals addressed the state’s growing need for health service professionals and stated that allowing qualified noncitizens to enter those fields will help fulfill that need.258 as examples, the new york city comment stated that state labor projections indicated increasing demand for many licensed professions, especially those in medical fields.259 a comment from the icahn school of medicine at mount sinai pointed to projections of physician shortages. 260 an individual comment cited reports of shortages of nurses, social workers and primary care physicians.261 an analysis by the fiscal policy institute demonstrated how immigrants matter in the licensed professions across the state as they are disproportionately represented in a number of these occupations including those in the health fields.262 visited nov. 20, 2017); office for new americans, http://www.newamericans.ny.gov/about/governor.html (last visited nov. 20, 2017). 258 id. this is additionally supported by information that reveals that daca recipients are increasingly applying to and being accepted in medical school. over fifty medical schools consider applicants who are daca recipients. in 2016, 113 dacas applied through the american medical college application service. sixty-five daca recipients who applied for admission from 2014 to 2016 matriculated at md-granting medical schools. nakae sunny et al, considerations for residency programs regarding accepting undocumented students who are daca recipients, acad. med. 1 (2017) available at http://journals.lww.com/academicmedicine/abstract/publishahead/conside rations_for_residency programs_regarding.98199.aspx. 259 the summary of the comments in this article is based on a review of the comments that were obtained pursuant to the new york freedom of information law and are on file with the author. 260 id. 261 id. 262 id. additionally, one study reported a growing need for health care professionals in the united states and the significant role that the foreign-born play in meeting this need. see szilvia altorjai & jeanne batalova, immigrant health-care workers in the united states, migration policy institute (june 28, 2017), available at http://www.migrationpolicy.org/article/immigrant-health-care-workersunited-states. no. 2:33] professional licensing and teacher certification 87 many comments focused on new york’s current need for bilingual and culturally responsive teachers and health professionals.263 because of new york’s significant foreignborn population, commentators stated it was important that more individuals in the teaching and medical professions in new york have cultural and language capacities that reflect the diverse communities in the state.264 some pointed to the shortage of qualified bilingual teachers and professionals. for example, advocates for children of new york stated that the shortage of bilingual psychologists, social workers, and speech, physical and occupational therapists made it difficult for children with disabilities to receive an appropriate education.265 others pointed to the need for professionals who could provide culturally responsive services. 266 furthermore, the comments stated that enhancing diversity is also advantageous to members of the teaching and other professions by providing for engagement with multiple perspectives. 267 allowing non-citizens to be licensed as professionals and certified as teachers helps achieve these needs and goals. a number of commentators focused on the positive effect of the amendments on non-citizen student populations 263 the summary of the comments in this article is based on a review of the comments that were obtained pursuant to the new york freedom of information law, new york public officers law, article 6 and are on file with the author. 264 id. 265 e-mail from abja midha, project director, advocates for children of new york, to peg rivers, director of operations, new york state education department (apr. 13, 2016), available at http://www.advocatesforchildren.org/sites/default/files/on_page/comments_ licensing_citizenship_reqs_41316.pdf?pt=1. 266 the summary of the comments in this article is based on a review of the comments that were obtained pursuant to the new york freedom of information law, new york public officers law, article 6 and are on file with the author. 267 id. 88 columbia journal of race and law [vol. 8:1 in new york.268 they noted that inclusive measures have brought hope to non-citizen youth and encouraged them to stay in school and pursue higher education and professions. the inability to obtain licenses for the professions for which they work hard to be educated has been a barrier for them.269 it has discouraged them from pursuing the professions for which they have capacity and ambition.270 the amendments provide young non-citizens with hope and encouragement to stay in school, meet their potential and maximize their achievements. individual non-citizens who would benefit from the amendments also chose to comment, illustrating their reasons for support. a number were in school or about to enter school to study to be doctors, nurses or therapists.271 they had come to new york as children, graduated from high school in new york, succeeded in public universities in new york, and volunteered in community based programs.272 their comments stated that they viewed their professional choice as a means of contributing to the communities and state in which they were raised.273 b. comments in opposition many of the comments in opposition to the proposed regulations in new york focused on a concern about 268 id. 269 id. 270 these comments are supported by the findings in national undacamented research project. roberto g. gonzales et al., daca at year three: challenges and opportunities in assessing higher education and employment, national undacamented research project (2016), available at http://immigrationpolicy.org/sites/default/files/docs/daca_at_year_three.pdf. 271 the summary of the comments in this article is based on a review of the comments that were obtained pursuant to the new york freedom of information law, new york public officers law, article 6 and are on file with the author. 272 id. 273 id. no. 2:33] professional licensing and teacher certification 89 difficulties faced by military spouses in obtaining new york licenses when they relocated to new york.274 the argument made was that the state should not afford licensing to noncitizens when there were barriers for military spouses. 275 however, the issue involved for military spouses was different in kind from the issue faced by non-citizens. noncitizens were excluded from applying for licenses despite their relevant education and other qualifications that met new york standards. military spouses who were licensed in other states were not prevented from applying for new york licenses, but they had to demonstrate that they met new york’s education and other qualifications. for some, this was a time-consuming process. this issue was resolved by a state statute, effective in 2017,276 that provided for expedited initial applications, reduction in application fees, and temporary practice permits for military spouses who had licenses in other states with standards substantially equivalent to new york state standards.277 these adverse comments failed to recognize that the proposed, and now final, regulations assist some military families by allowing their non-citizen members to be licensed for the professions for which they were otherwise qualified under new york’s requirements. significant numbers of non-citizens serve in the united states military and there 274 lentivech & john l. d’agati, supra note 10 at 26. 275 the proposed regulations were criticized because at the time the board of regents had not changed competency requirements for military spouses or automatically accepted their licenses in other states as a basis for new york licenses. press release, terrence murphy, murphy tells regents to put military personnel, families, before illegal immigrants (mar. 12, 2016) available at https://www.nysenate.gov/newsroom/press-releases/terrencemurphy/murphy-tells-regents-put-military-personnel-families-illegal. 276 n.y. educ. law § 6501(2) (mckinney 2016). 277 new york office of the professions, military spouses relocated to new york state-expedited licensing services, http://www.op.nysed.gov/prof/militaryspouse.htm (last visited oct. 23, 2017). 90 columbia journal of race and law [vol. 8:1 are non-citizen members of military families. 278 in recognition of their service, special policies apply to the citizenship and immigration categories of members of the military and military families. military family members may be eligible for parole in place or deferred action granted by the uscis, united states citizenship and immigration services.279 this affords renewable permission to be in the united states and eligibility for work authorization. 280 therefore, this is a non-citizen category analogous to daca that would be recognized under the new york regulations as eligible for licensing or certification. these military spouses, like any other citizens or non-citizens, would have to meet new york’s qualifications for licensing. the other comments against the regulations complained that “illegal” aliens should not be allowed to be teachers or be licensed in new york. however, the regulations required that non-citizens had to be “not unlawfully present” to be licensed or certified, thereby excluding those who were “illegal.”281 c. comments urging no state restrictions based in non-citizen category some comments urged that new york, like california, should focus only on requirements related to the competency qualifications for licensing or certification. the comments 278 jeanne batalova, immigrants in the u.s. armed forces, migration policy institute, (may 15, 2008) http://www.migrationpolicy.org/article/immigrants-us-armed-forces/. 279 u.s. citizenship and immigration services, discretionary options for military members, enlistees and their families, https://www.uscis.gov/military/discretionary-options-military-membersenlistees-and-their-families (last visited oct. 23, 2017); u.s. citizenship and immigration services, adjudicator's field manual, chapter 21 family-based petitions and applications, 21.1(c) https://www.uscis.gov/ilink/docview/afm/html/afm/0-0-0-1/0-0-03481/0-0-0-3501.html#0-0-0-385 (last visited oct. 23, 2017). 280 id. 281 lentivech & john l. d’agati, supra note 248 at 28–29. no. 2:33] professional licensing and teacher certification 91 stated the reasons summarized as follows. the state has the police power authority to protect the health, safety and welfare of the state’s residence and the expertise in the requirements for professional licensing to best achieve that goal. congress affords states the choice of not having to make determinations based on immigration status by providing the state the option to choose to allow even totally unauthorized aliens to be licensed.282 the comments noted this option allows a state to focus on what is within the state’s expertise and authority, the competency requirements for licensing. it leaves to the federal immigration authorities their expertise in implementing and enforcing the immigration law. by doing so the state does not put any imprimatur on the legality under immigration law of a person’s presence in the state. it merely recognizes that such a judgment and determination is in the control of the federal government.283 further, the comments argued congress made the judgment not to impose penalties on non-citizens who work without authorization, but only on the employers who hire non-citizens who do not have authorization to work.284 it is unlawful for an employer to hire an alien without employment authorization for employment in the united states.285 employers who violate this pay a civil penalty,286 and may be subject to criminal penalties if there is “a pattern or practice” of such violation. 287 however, as the u.s. supreme court recognized, there are no criminal penalties for employees who engage in unauthorized work. 288 in 282 8 u.s.c. § 1621(d) (2012). 283 the summary of the comments in this article is based on a review of the comments that were obtained pursuant to the new york freedom of information law, new york public officers law, article 6 and are on file with the author. 284 id. 285 id. see also 8 u.s.c. § 1324a(a)(1)(a) (2012). 286 id. see also 8 u.s.c. § 1324a(e)(4) (2012). 287 id. see also 8 u.s.c. § 1324a(f)(1) (2012). 288 id. 92 columbia journal of race and law [vol. 8:1 arizona v. united states, the court struck down as unconstitutional an arizona statute that made it a state misdemeanor for an unauthorized alien to knowingly apply for, solicit, or perform work as an employee. 289 because congress had made a deliberate choice to not penalize work without authorization, a state could not criminalize it. 290 additionally, those non-citizens who engage in sole proprietorships, partnerships or corporate structures are not engaging in employment.291 a person holding a professional license, who establishes a business entity or performs services as an independent contractor, is not engaged in “employment” as he does not have an employer.292 if a state does not impose restrictions based in immigration status, state interests are protected by an existing new york law, which requires the provision of a social security number293 or federal taxpayer identification294 289 132 s. ct. 2492, 2503 (2012); in doing so, the court stated: “the legislative background of irca underscores the fact that congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. a commission established by congress to study immigration policy and to make recommendations concluded these penalties would be “unnecessary and unworkable,” (citing u.s. immigration policy and the national interest: the final report and recommendations of the select commission on immigration and refugee policy with supplemental views by commissioners 65–66 (1981). 290 id. 291 patel v. ins, 811 f.2d 377 (7th cir. 1987), see also bhakta v. ins, 667 f.2d 771 (9th cir. 1981) (holding that the ins cannot deem a non-citizen’s management of his business enterprise to be “unauthorized employment” when considering his application for an adjustment of status). 292 8 c.f.r. § 274a.1(g); lozano v. city of hazleton, 724 f.3d 297 (3d cir. 2013); 8 c.f.r. § 274a.1(f), (h), (j); geoffrey heeren, the immigrant right to work, 31 geo. immigr. l.j. 243 (2017). 293 applicants for employment related social security numbers must provide indicia of employment authorization. social security administration, social security numbers for noncitizens, (july 2017),” http://www.ssa.gov/pubs/en-05-10096.pdf. 294 new york state tax law requires license applicants to provide a social security number or federal employer identification number (or the no. 2:33] professional licensing and teacher certification 93 by license applicants. individuals with professional licenses through the new york department of education may be employees, or practice their professions as sole proprietors, in partnerships or certain corporate structures.295 they also may apply for an alternative taxpayer identification number.296 therefore, the state’s interest in tax payments, and identification of those it licenses is protected. additionally, the comments asserted that removing any immigration related criteria from licensing would allow the state to better reap the benefit of its in-state tuition policy.297 new york state provides in-state tuition to its noncitizen new york high school graduates without regard to any immigration category.298 it benefits the state to allow those educated with in-state tuition to practice the professions for which they have been educated. in response to these comments, new york again reiterated that it made the choice to provide licensing opportunities to a broad category of those not unlawfully present.299 vi. insights from california’s and new york’s approaches reason the person does not have the numbers.) n.y. tax § 5(2) (mckinney 2014). 295 the new york state department of education allows professionals with the licenses/certificates at issue to set up these corporate entities. new york state department of education, corporate entities for professional practice, (oct. 12, 2016) http://www.op.nysed.gov/corp/. 296 internal revenue service, employer identification number: understanding your ein, (2014), available at https://www.irs.gov/pub/irspdf/p1635.pdf. 297 the summary of the comments in this article is based on a review of the comments that were obtained pursuant to the new york freedom of information law, new york public officers law, article 6 and are on file with the author. 298 n.y.educ.law §§ 355(2)(h)(8) (mckinney 2009); 6206(7)(a), (a-1); 6301(5) (mckinney 2016). 299 lentivech & john l. d’agati, supra note 248. 94 columbia journal of race and law [vol. 8:1 the insights from the california and new york approaches are useful for other states, members of the public and organizations, even though the specific process of setting licensing criteria in each state differs. as matter of law, regulation and policy, california and new york removed restrictions on non-citizens from professional licensing, broadening the ability of their non-citizen populations to gain professional licensing and thereby contribute to the state. while what might be most appropriate in one state may differ from another, the california and new york experiences provide information about the benefits and detriments of various choices. california chose a legislative approach, while new york addressed the issue through administrative regulation. both states faced a federal statute that purported to limit state control over a traditional area of state authority. california chose legislation designed to specifically comport with the requisites of the federal statute that required state legislation passed at a particular time and with particular language. 300 it therefore did not have to assert its state sovereignty under the tenth amendment over state licensing as did new york. 301 new york’s regulatory approach required that new york insist on its state sovereignty to control licensing criteria through the process set by the state constitution, the state legislature and the relevant administrative entities. 302 new york’s approach allowed decision-making by the administrative and state authorities with expertise in the area and responsibility for implementation.303 both california and new york allowed for some public input into the decision about eligibility for licenses. 300 supra part i, a, the california legislation. 301 supra part iii, a. federalism. 302 id. 303 supra part ii. b. the new york system of professional licensing and teacher certification. no. 2:33] professional licensing and teacher certification 95 organizations in california had a voice in support or opposition to the legislation.304 but, new york’s notice and comment regulatory process gave opportunity for comments by a wide range of individuals, experts, organizations, educational institutions, and local governments. 305 moreover, this process required that the governmental entities making the decision had to consider and respond to the comments from various members of the public about the proposal. 306 in new york, this resulted in multiple perspectives on the role of non-citizens in the state’s economy and professional and community endeavors, as well as the legality of the proposal.307 california and new york both made comprehensive choices about the professions affected within the context of their state’s system for regulating professions and teachers. california’s law affected a broader number of occupations because the california department of consumer affairs had authority over a large number of occupations.308 the new york system divides occupational licensing among different agencies.309 only the professions and teachers are regulated by the board of regents and education department, which also have authority over higher education institutions.310 304 supra part i. d. history of the legislation and positions in favor and opposed. 305 supra part iv. comments from the new york regulatory process. 306 the new york board of regents and department of education had to review and respond to comments under the state’s administrative procedure act, n.y. a.p.a. § 202 5(b) (mckinney 2017). see douglas e. lentivech & john l. d’agati, assessment of public comment attachment b, the state education department (may 9, 2016), http://www.regents.nysed.gov/common/regents/files/516heppca1.pdf. 307 supra part iv, comments from the new york regulatory process. 308 supra, part 1. the california system of professional licensing and teacher certification. 309 supra part ii, b. the new york system of professional licensing and teacher certification. 310 id. 96 columbia journal of race and law [vol. 8:1 both california and new york significantly broadened the categories of non-citizens eligible for professional licensing and teacher certification. but california removed all non-citizen category restrictions. 311 california’s choice to remove restrictions based in non-citizen status left determinations about immigration law enforcement to the federal government. this approach freed the relevant state administrative agency to focus only on the competency requirements the state deems necessary to protect the health and safety of its population. california also thereby avoided the intricacies of and changes in immigration law, policy, and practice. new york allowed licensing and teacher certification to those who can demonstrate that their presence had federal knowledge and acquiescence or permission. 312 new york focused on the integration of the non-citizen population residing in the state through federal action or inaction. the new york position requires an interpretation of immigration categories through the state standard of prucol.313 new york also avoided the criticism that it was affording licensing to those who are completely undocumented. but california was not deterred by that critique, and its supreme court, in the context of bar membership, clarified that lack of an immigration status alone does not make a person unqualified for an occupation regulated by the state.314 both states viewed the expansion of non-citizens’ eligibility for professions and teaching as a significant economic gain for the state. the recorded positions on the california legislation supported this, 315 as did the wide 311 cal. bus. & prof. code § 135.5 (west, westlaw through ch. 467 of 2017 reg.sess). 312 supra, part ii, e. the non-citizen categories eligible for licensing and certification. 313 supra, part ii, e., 2. prucol, permanently residing under color of law. 314 in re garcia, 315 p.3d at 130. 315 supra notes 51–55. no. 2:33] professional licensing and teacher certification 97 variety comments in new york.316 the positive effects on a state’s economy of allowing licensing for daca recipients was also behind nebraska state legislation that allowed daca recipients to apply for occupational licenses passed over the state governor’s veto.317 legislators and chambers of commerce saw the bill as assisting in building the state’s needed workforce.318 these positions are generally supported by studies on the economic impact of immigration.319 there has been some disagreement about the economic impact of immigration in the united states. however, most of the disagreement is about whether lower skilled migrants contribute sufficiently to the tax base or adversely impact opportunities for united states citizens with limited educations. 320 the economic advantages of more highly educated and skilled non-citizens are generally acknowledged as they increase the tax base and add to the development of the economy by contributing their skills and expending their resources.321 316 supra part iv. a. comments in support. 317 don walton & zach pluhacek, senators override ricketts’ veto on young immigrant licensure bill, lincoln journal star, apr. 20, 2016 available at http://journalstar.com/legislature/senators-override-rickettsveto-on-young-immigrant-licensure-bill/article_a2d6d276-cde0-5d26-a893dd472c55dc44.html. 318 id. 319 francine d. blau & christopher mackie, the economic and fiscal consequences of immigration (2017) available at https://www.nap.edu/read/23550/chapter/1#xx; james p. smith & barry edmonston, the new americans: economics, demographic, and fiscal effects of immigration (1997) available at https://www.nap.edu/read/5779/chapter/2#3. 320 francine d. blau & christopher mackie, the economic and fiscal consequences of immigration (2017) available at https://www.nap.edu/read/23550/chapter/1#xx. 321 ike brannon & logan albright, the economic and fiscal impact of repealing daca, cato institute, january 18, 2017, https://www.cato.org/blog/economic-fiscal-impact-repealing-daca; american immigration council, value added: immigrants create jobs and businesses, boost wages of native-born workers, (jan. 1, 2012) https://www.americanimmigrationcouncil.org/research/value-addedimmigrants-create-jobs-and-businesses-boost-wages-native-born-workers. 98 columbia journal of race and law [vol. 8:1 both states enhanced the value of the education of their non-citizen residents and gained economic and social benefits from non-citizens who use their educations in the employment for which they are qualified. the benefits especially apply to the growing need for health professionals, and specialized need for teachers and other helping professionals who have language and cultural competency.322 however, california is in a better position to gain the benefits from its provision of in-state tuition to non-citizens since it allows licensing without regard to immigration status for its non-citizen graduates. both states also seriously considered the contributions, needs and integration of their non-citizen populations in providing for greater diversity in their licensed professionals and teachers. 323 this consideration comports with the public service and protection justification for the state function of professional licensing.324 vii. conclusion the issues confronted by the choices made by california and new york provide important information to other states, their organizations and residents in considering how to best promote the public health and safety goals of state regulation of professions and how to effectively allow members of their non-citizen populations to contribute to their communities and states. both california and new york demonstrated the advantages of expanding non-citizen eligibility for professional licensing and teacher certification in a comprehensive manner. they decided that the comprehensive inclusion of non-citizens in a state’s professions and teaching provides the state and its communities and residents with significant socio-economic 322 supra part iv. a. comments in support. 323 id. 324 supra notes 178–179. no. 2:33] professional licensing and teacher certification 99 advantage. further, the new york approach establishes that state sovereignty precludes federal control of a state’s process or choice of state governmental entity responsible for licensing criteria. therefore, a state need not comply with the federal statutory requirement that licensing for categories of non-citizens has to be set only by a state statue enacted after august 22, 1996. a state may set the eligibility of non-citizens for licenses by the state’s established process, including administrative regulation or a state statute enacted before august 22, 1996. 100 columbia journal of race and law [vol. 8:1 viii. appendix 1–california licensing and teacher certification california department of consumer affairs325 1. accountancy326 business and professions code §§ 5000 – 5158 327 title 16, division 1, california code of regulations §§ 1 – 99.1 328 reciprocity (bpc §§ 5096 – 5096.21) 329 2. acupuncture 330 sections 4925 to 4979 of the california business and professions code331 title 16, sections 1399.400 to 1399.489.2 of the california code of regulations332 3. arbitration certification 333 sections 472 to 472.5 of the california business and professions code334 325 see generally cal. dep’t of consumer affairs, 2016 annual report (2016), http://www.dca.ca.gov/publications/2016_annrpt.pdf (providing background on the function of the california department of consumer affairs). dca issues licenses, certificates, registrations and permits in over 250 business and professional categories through 39 regulatory entities comprised of boards, bureaus, committees, a program, and a commission (boards and bureaus). these 39 entities set and enforce minimum qualifications for the professions and vocations they regulate, which include nearly all of california’s healthcare fields. california department of consumer affairs, supra note 26, at 3. 326 the california board of accountancy handles licensing, regulatory, and disciplinary functions of accountants. 327 cal. bus. & prof. code §§ 5000–5158 (west 2017). 328 cal. code regs. tit. 16, §§ 1–99.1 (2017). 329 cal. bus. & prof. code §§ 5096–5096.21 (west 2017). 330 acupuncture board issues license to practice acupuncture. 331 cal. bus. & prof. code §§ 4925–4979 (west 2017). 332 cal. code regs. tit. 16, §§ 1399.400–1399.489.2 (2017). 333 an arbiter is a “person or persons within an arbitration program who actually decide disputes.” cal. code regs. tit. 16, § 3396.1(d). 334 cal. bus. & prof. code §§ 472–472.5 (west 2017). no. 2:33] professional licensing and teacher certification 101 sections 2101 to 2801 of the california commercial code335 sections 43204 to 43205.5 of the california health and safety code336 sections 1790 to 1795.8 of the song-beverly consumer warranty act (lemon law)337 sections 11700 to 11909 of the california vehicle code338 title 16, sections 3396.1 to 3399.6 of the california code of regulations339 4. architects 340 sections 5500 to 5683 of the california business and professions code341 title 16, sections 100 to 160 of the california code of regulations342 title 16, sections 2602 to 2680 of the california code of regulations343 title 16, section 121 of the california code of regulations (reciprocity)344) 5. athletic commission 345 335 cal. com. code §§ 2101-2801 (west 2017). 336 cal. health & safety code §§ 43204–43205.5 (west 2017). 337 song-beverly consumer warranty act (lemon law), cal. civ. code §§ 1790–1795.8 (west 2017). 338 cal. veh. code §§ 11700-11909 (west 2017). 339 cal. code regs. tit. 16, §§ 3396.1–3399.6 (2017). 340 just for architects. “an architect licensed by the california state board of architectural examiners may practice the profession of landscape architecture as defined in the business & professions code when such work is one phase of a larger contract or as an entire project.” cal. bus. & prof. code § 5500.1 (west 2017). 341 cal. bus. & prof. code §§ 5500–5683 (west 2017). 342 cal. code regs. tit. 16, §§ 100–160 (2017). 343 cal. code regs. tit. 16, §§ 2602–2680 (2017). 344 cal. code regs. tit. 16, § 121 (west 2017). 345 the commission controls: professional and amateur boxing, professional and amateur kickboxing, all forms and combinations of forms of full contact martial arts contests, including mixed martial arts, and matches or exhibitions conducted, held, or given within this state. 102 columbia journal of race and law [vol. 8:1 sections 18600 to 18887 of the california business and professions code346 title 4, sections 201 to 829 of the california code of regulations347 6. automotive repair 348 sections 9880 to 9889.68 of the california business and professions code349 sections 44000 to 44126 of the california health and safety code350 title 16, sections 3300 to 3395.5 of the california code of regulations351 7. barber / cosmetology 352 sections 7301 to 7426.5 of the california business and professions code353 title 16, sections 901 to 999 of the california code of regulations354 section 7331 of the california business and professions code (reciprocity)355) no event shall take place without the prior approval of the commission. no person shall engage in the promotion of, or participate in, a boxing or martial arts contest, match, or exhibition without a license, and except in accordance with this chapter and the rules adopted hereunder. cal. bus. & prof. code § 18640 (west). 346 cal. bus. & prof. code §§ 18600–18887 (west 2017). 347 cal. code regs. tit. 16, §§ 201–829 (2017). 348 specifies automotive repair dealers. cal. bus. & prof. code § 9880 (west 2017). 349 cal. bus. & prof. code §§ 9880–9889.68 (west 2017). 350 cal. health & safety code § 44000–44126 (west 2017). 351 cal. code regs. tit. 16, §§ 3300–3395.5 (2017). 352 covers “hair, skin, nail care, and electrolysis” cal. bus. & prof. code § 7301 (west 2017). also specifies “barbering, cosmetology, or electrolysis.” cal. bus. & prof. code § 7317 (west 2017). 353 cal. bus. & prof. code §§ 7301–7426.5 (west 2017). 354 cal. code regs. tit. 16, §§ 901–999 (2017). 355 cal. bus. & prof. code § 7331 (west 2017). no. 2:33] professional licensing and teacher certification 103 8. behavioral sciences 356 sections 4980 to 4999.129 of the california business and professions code357 title 16, sections 1800 to 1889.3 of the california code of regulations358 9. cemetery / funeral 359 sections 7600 to 7746 of the california business and professions code360 title 16, sections 1200 to 1291 of the california code of regulations361 title 16, division 23, california code of regulations §§ 2300 – 2390 362 health and safety codes §§ 7000 – 9677 363 health and safety codes §§ 102100 – 103800 364 government code §§ 27460 – 27530 365 356 applies to marriage and family therapy marriage as defined by section 4980.02. includes educational psychology. cal. bus. & prof. code § 4989.14 (west). the department of consumer affairs determines the “licensure of marriage and family therapists, clinical social workers, professional clinical counselors, and educational psychologists.” cal. bus. & prof. code § 4990.18 (west). applies to clinical social workers. cal. bus. & prof. code § 4991.1 (west). applies to health care professionals providing telephone medical advice services. cal. bus. & prof. code § 4999 (west). 357 cal. bus. & prof. code §§ 4980 – 4999.129 (west 2017). 358 cal. code regs. tit. 16, §§ 1800–1889.3 (2017). 359 applies to cemetery brokers (cal. bus. & prof. code § 7651 (west 2017)); cemetery salespeople (cal. bus. & prof. code § 7651.3 (west 2017)); cemetery brokerage licenses to a cemetery brokerage corporation (cal. bus. & prof. code § 7652 (west 2017)); cemetery managers (cal. bus. & prof. code § 7653.6 (west 2017)); cremated remains disposers (cal. bus. & prof. code § 7672.1 (west 2017)). 360 cal. bus. & prof. code §§ 7600–7746 (west 2017). 361 cal. code regs. tit. 16, §§ 1200–1291 (2017). 362 cal. code regs. tit. 16, §§ 2300 – 2390 (west 2017). 363 cal. health & safety code § 7000 – 9677 (west 2017). 364 cal. health & safety code § 102100 – 103800 (west 2017). 365 cal. gov’t code §§ 27460 – 27530 (west 2017). 104 columbia journal of race and law [vol. 8:1 welfare and institutions code §§ 11150 – 11160, §§ 12150 – 12156, §§ 17400 – 17410 366 10. chiropractic examiners 367 business and professions code §§ 1000 – 1058 (chiropractic initiative act) 368 title 16, division 4, california code of regulations §§ 301 – 390.6 369 reciprocity (16 ccr § 323 370) 11. contractors 371 business and professions code §§ 7000 – 7199.7 372 title 16, division 8, california code of regulations §§ 810 – 890 373 license requirements (§§ 7065 – 7077, 374 16 ccr § 825 375) reciprocity (bpc § 7065.4 376) 12. court reporters 377 business and professions code §§ 8000 – 8047 378 title 16, division 24, california code of regulations §§ 2400 – 2481 379 13. dentistry 380 366 cal. welf. & inst. code §§ 11150 – 11160, 12150 – 12156, 17400 – 17410 (west 2017). 367 just authorizes chiropractic examiners. 368 cal. bus. & prof. code §§ 1000 – 1058 (west 2017). 369 cal. code regs. tit. 16, §§ 301 – 390.6 (west 2017). 370 cal. code regs. tit. 16, § 323 (west 2017) 371 just authorizes contractors. 372 cal. bus. & prof. code §§ 7000 – 7199.7 (west 2017). 373 cal. code regs. tit. 16, §§ 810 – 890 (west 2017). 374 cal. bus. & prof. code § 7065 – 7077 (west 2017). 375 cal. code regs. tit. 16, § 825 (west 2017). 376 cal. bus. & prof. code § 7065.4 (west 2017). 377 authorizes certified shorthand reporter. cal. bus. & prof. code § 8020 (west). 378 cal. bus. & prof. code §§ 8000 – 8047 (west 2017). 379 cal. code regs. tit. 16, §§ 2400 – 2481 (west 2017). no. 2:33] professional licensing and teacher certification 105 business and professions code §§ 1600 – 1808, §§ 19701976 381 title 16, division 10, california code of regulations §§ 1000 – 1087 382 14. dental hygiene business and professions code §§ 1900 – 1976.4 383 title 16, division 10, california code of regulations §§ 1000 – 1023.8, §§ 1067 – 1090.1, § 1107, §§ 1131 – 1132, §§ 1138 – 1144, §§ 1149 – 1153 384 15. bearhfti (electronic and appliance repair businesses – sale and administration of service contracts; manufacture and sale of upholstered furniture and bedding, supply dealers, custom upholsterers, bedding sanitizers, manufacture of thermal insulation products and tests for flammability and sanitation) business and professions code §§ bear: 9800 – 9874 385 hfti: §§ 19000 – 19221 386 title 16, division 27, california code of regulations §§ 2701 – 2775 387 title 4, division 3, california code of regulations §§ 1101 – 1383.6 388 16. guide dogs 389 380 includes dentists. also includes specific license to perform various surgeries or use specific types of anesthesia. also includes dental hygienist. cal. bus. & prof. code § 1902.2 (west). 381 cal. bus. & prof. code §§ 160 – 1808, 1970-1976 (west 2017). 382 cal. code regs. tit. 16, §§ 1000 – 1087 (west 2017). 383 cal. bus. & prof. code §§ 1900 – 1976.4 (west 2017). 384 cal. code regs. tit. 16, §§ 1000 – 1023.8, 1067 – 1090.1, 1107, 1131–1132, 1138–1144, 1149–1153 (west 2017). 385 cal. bus. & prof. code §§ 9800 – 9874 (west 2017). 386 cal. bus. & prof. code §§ 19000 – 19221 (west 2017). 387 cal. code regs. tit. 16, §§ 2701 – 2775 (west 2017). 388 cal. code regs. tit. 16, §§ 1101 – 1383.6 (west 2017). 389 “the board shall have exclusive authority in this state to issue licenses for the instruction of persons who are blind or visually impaired in 106 columbia journal of race and law [vol. 8:1 business and professions code §§ 7200 – 7217390 california civil code §§ 54 – 55.32391 california penal code §§ 346 – 367g, § 600.2, and § 600.5392 california vehicle code § 21963393 california food and agriculture code §§ 30850 – 30854 394 and §§ 31601 – 31609 395 americans with disabilities act title iii – public accommodations (42 u.s.c. 12181) 396 title 16, division 22, california code of regulations §§ 2250 – 2295.3 397 17. landscape architects 398 business and professions code §§ bear: 5500 – 5683 399 title 16, division 27, california code of regulations §§ 100 – 160 400 title 4, division 3, california code of regulations §§ 2602 – 2680 401 reciprocity (16 ccr 2615 402) 18. medical board 403 the use of guide dogs and for the training of guide dogs for use by persons who are blind or visually impaired. it shall also have exclusive authority in this state to issue licenses to operate schools for the training of guide dogs and the instruction of persons who are blind or visually impaired in the use of guide dogs.” cal. bus. & prof. code § 7200.5 (west). also applies to owners of assistance dogs. cal. food & agric. code §§ 30850 – 30854 (west). 390 cal. bus. & prof. code §§ 7200 – 7217 (west 2017). 391 cal. civ. code §§ 54 – 55.32 (west 2017). 392 cal. penal code §§ 346 – 367g, 600.2, 600.5 (west 2017). 393 cal. veh. code § 21963 (west 2017). 394 cal. food & agric. code §§ 30850 – 30854 (west 2017). 395 cal. food & agric. code §§ 31601 – 31609 (west 2017). 396 42 u.s.c. § 12181 (2017). 397 cal. code regs. tit. 16, §§ 2250 – 2295.3 (west 2017). 398 just applies to landscape architects. 399 cal. bus. & prof. code §§ 5500 – 5683 (west 2017). 400 cal. code regs. tit. 16, §§ 100 – 160 (west 2017). 401 cal. code regs. tit. 16, §§ 2602 – 2680 (west 2017). 402 cal. code regs. tit. 16, § 2615 (west 2017). no. 2:33] professional licensing and teacher certification 107 business and professions code §§ 2000 – 2448, §§ 2505 – 2529.5, §§ 2540 – 2569 404 title 16, division 13, california code of regulations §§ 1300 – 1379.78, §§ 1399.200 – 1399.279 405 reciprocity (bpc §§ 2135, 2135.5 and 2135.7 406) 19. occupational therapy 407 business and professions code §§2570 – 2571 408 title 16, division 13, california code of regulations §§ 1300 – 1379.78, §§ 1399.200 – 1399.279 409 20. optometry 410 business and professions code §§ 2540 – 2545, §§ 2546 – 2546.10, §§ 2550 – 2569, §§ 3000 – 3167 411 title 16, division 15, california code of regulations §§ 1500 – 1581 412 403 applies to “physician's and surgeon's certificate,” (cal. bus. & prof. code § 2050 (west)); medical assistant, physician assistant, nurse practitioner or certified nurse-midwife (cal. bus. & prof. code § 2069 (west). includes osteopathic physician’s and surgeon’s certificate. cal. bus. & prof. code § 2099.5 (west). also includes doctor of podiatric medicine. cal. bus. & prof. code § 2472 (west). also includes midwives and midwife assistants. cal. bus. & prof. code § 2507, 2516.5 (west). 404 cal. bus. & prof. code §§ 2000 – 2448, 2505 – 2529.5, 2540 – 2569 (west 2017). 405 cal. code regs. tit. 16, §§ 1300 – 1379.78, 1399.200 – 1399.279 (west 2017). 406 cal. bus. & prof. code §§ 2135, 2135.5, 2135.7 (west 2017). 407 applies to ot and otas. 408 cal. bus. & prof. code §§ 2000 – 2448, 2505 – 2529.5, 2540 – 2569 (west 2017). 409 cal. code regs. tit. 16, §§ 1300 – 1379.78, 1399.200 – 1399.279 (west 2017). 410 applies to optometrists and related additional certifications related to optometry. 411 cal. bus. & prof. code §§ 2540 – 2545, 2546 – 2546.10, 2550 – 2569, 3000 – 3167 (west 2017). 412 cal. code regs. tit. 16, §§ 1500 – 1581 (west 2017). 108 columbia journal of race and law [vol. 8:1 title 16, division 13.5, california code of regulations § 1399 413 reciprocity (bpc §§ 3057 414) 21. osteopathic 415 business and professions code §§ 2000 – 2459.7 416 title 16, division 16, california code of regulations §§ 1600 – 1697 417 reciprocity (bpc § 2153.5 418) 22. pharmacy 419 business and professions code §§ 4000 – 4426 420 title 16, division 17, california code of regulations §§ 1702 – 1793.8 421 23. physical therapy 422 business and professions code §§ 2600 – 2696 423 title 16, division 13.2, california code of regulations §§ 1398 – 1399.99.4 424 reciprocity (bpc 2636.5 425) graduate practice – physical therapist and physical therapist assistance “license applicant” statute (§ 2639) 426 413 cal. code regs. tit. 16, § 1399 (west 2017). 414 cal. bus. & prof. code § 3057 (west 2017). 415 applies to osteopathic physician or surgeon. 416 cal. bus. & prof. code §§ 2000 – 2459.7 (west 2017). 417 cal. code regs. tit. 16, §§ 1600 – 1697 (west 2017). 418 cal. bus. & prof. code § 2153.5 (west 2017). 419 applies to pharmacists (cal. bus. & prof. code § 4200 (west)), pharmacy technicians (cal. bus. & prof. code § 4202 (west)), and intern pharmacists (cal. bus. & prof. code §§ 4208 – 4209 (west)). 420 cal. bus. & prof. code §§ 4000 – 4426 (west 2017). 421 cal. code regs. tit. 16, §§ 1702 – 1793.8 (west 2017). 422 applies to physical therapists and physical therapist assistants. cal. bus. & prof. code § 2636 (west). 423 cal. bus. & prof. code §§ 2600 – 2696 (west 2017). 424 cal. code regs. tit. 16, §§ 1398 – 1399.99.4 (west 2017). 425 cal. bus. & prof. code § 2636.5 (west 2017). 426 cal. code regs. tit. 21, § 2639 (west 2017). no. 2:33] professional licensing and teacher certification 109 24. physician assistants 427 business and professions code §§ 3500 – 3546 428 title 16, division 13.8, california code of regulations §§ 1399 – 1399.99.4 429 25. podiatric doctors 430 business and professions code §§ 2460 – 2499.8 431 title 16, division 13.9, california code of regulations §§ 1399.650 – 1399.725 432 reciprocity (bpc § 2488 433) 26. private postsecondary education 434 california education code §§ 94800 – 94950 435 title 5, division 7.5, california code of regulations §§ 70000 – 76240 436 27. bpelsg (engineers, land surveyors, geologists, geophysicists) business and professions code §§ 6700 – 6799 (engineers) §§ 7800 – 7887 (geologists and geophysicists) and §§ 8700 – 8805 437 (land surveyors) title 16, division 5, california code of regulations §§ 400 – 476 438 (engineers / surveyors) 427 applies to physician assistants only. 428 cal. bus. & prof. code §§ 3500 – 3546 (west 2017). 429 cal. code regs. tit. 16, §§ 1399 – 1399.99.4 (west 2017). 430 applies only to podiatric doctors and surgeons. 431 cal. bus. & prof. code §§ 2460 – 2499.8 (west 2017). 432 cal. code regs. tit. 16, §§ 1399.650 – 1399.725 (west 2017). 433 cal. bus. & prof. code § 2488 (west 2017). 434 applies to institutions offering educational programs designed to lead to positions requiring licensure. cal. educ. code §§ 94904 – 94905, 94929.5(2) (west). 435 cal. educ. code §§ 94800 – 94950 (west 2017). 436 cal. code regs. tit. 16, §§ 70000 – 76240 (west 2017). 437 cal. bus. & prof. code §§ 6700 – 6799, 7800 – 7887, 8700 – 8805 (west 2017). 438 cal. code regs. tit. 16, §§ 400 – 476 (west 2017). 110 columbia journal of race and law [vol. 8:1 title 16, division 29, california code of regulations §§ 3000 – 3067 439 (geologists) reciprocity (bpc § 6759, § 7847, and § 8748 440) 28. fiduciaries 441 business and professions code §§ 6500 – 6592 442 title 16, division 41, california code of regulations §§ 4400 – 4622 443 29. psychology 444 business and professions code §§ 2900 – 2999 445 title 16, division 13.6, california code of regulations §§ 1380 – 1397.71 446 reciprocity temporary practice by out of state licenses; waiver of examination requirement (bpc § 2946 447) temporary practice by licensees of other state or foreign country (bpc § 2912 448) 30. real estate 449 business and professions code §§ 10000 – 11288 450 title 10, division 6, california code of regulations §§ 2705 – 3109 451 31. real estate appraisers 452 439 cal. code regs. tit. 16, §§ 3000 – 3067 (west 2017). 440 cal. bus. & prof. code §§ 6759, 7847, 8748 (west 2017). 441 applies to licensed professional fiduciaries. 442 cal. bus. & prof. code §§ 6500 – 6592 (west 2017). 443 cal. code regs. tit. 16, §§ 4400 – 4622 (west 2017). 444 applies to psychologists and those who practice psychotherapy. 445 cal. bus. & prof. code §§ 2900 – 2999 (west 2017). 446 cal. code regs. tit. 16, §§ 1380 – 1397.71 (west 2017). 447 cal. bus. & prof. code § 2946 (west 2017). 448 cal. bus. & prof. code § 2912 (west 2017). 449 applies to real estate broker licensees. cal. bus. & prof. code §§ 10150 (west). also applies to real estate salespeople. cal. bus. & prof. code §§ 10151 (west). 450 cal. bus. & prof. code §§ 10000 – 11288 (west 2017). 451 cal. code regs. tit. 16, §§ 2705 – 3109 (west 2017). no. 2:33] professional licensing and teacher certification 111 business and professions code §§ 11300 – 11423 453 title 10, division 6.5, california code of regulations §§ 3500 – 3780 federal: title 11, united states code §§ 1101 – 1126 454 title 15, united states code §§ 1639e 455 title 12, united states code §§ 225.61 – 225.67 456 title 12, united states code §§ 1222.20 – 1222.26 457 reciprocity (10 ccr 3569 458) 32. registered nursing 459 business and professions code §§ 2700 – 2838.4 460 title 16, division 14, california code of regulations §§ 1402 – 1495.4 461 reciprocity: business and professions code § 2732.1(b) 462 33. respiratory care 463 business and professions code §§ 3700 – 3779 464 title 16, division 13.6, california code of regulations §§ 1399.300 – 1399.395 465 reciprocity (bpc § 3735 466) 452 applies to real estate appraisers only. 453 cal. bus. & prof. code §§ 11300 – 11423 (west 2017). 454 11 u.s.c. §§ 1101 – 1126 (2017). 455 15 u.s.c. § 1639e (2017). 456 15 u.s.c. § 225.61 – 225.67 (2017). 457 15 u.s.c. § 1222.20 – 1222.26 (2017). 458 cal. code regs. tit. 15, § 3569 (west 2017). 459 includes midwives (cal. bus. & prof. code § 2746 (west)), nurse anesthetists (cal. bus. & prof. code §§ 2825 – 2833.6 (west)), nurse practitioners (cal. bus. & prof. code § 2834 – 2837 (west)), and clinical nurse specialists (cal. bus. & prof. code § 2838 – 2838.4 (west)). 460 cal. bus. & prof. code §§ 2700 – 2838.4 (west 2017). 461 cal. code regs. tit. 16, §§ 1402 – 1495.4 (west 2017). 462 cal. bus. & prof. code § 2732.1(b) (west 2017). 463 applies to respiratory care practitioners only. 464 cal. bus. & prof. code §§ 3700 – 3779 (west 2017). 465 cal. code regs. tit. 16, §§ 1399.300 – 1399.395 (west 2017). 466 cal. bus. & prof. code § 3735 (west 2017). 112 columbia journal of race and law [vol. 8:1 34. security and investigative 467 business and professions code §§ 6980 – 6980.84, §§ 7500 – 7599.75 468 title 16, division 7, california code of regulations §§ 600 – 645 469 35. speech and hearing 470 business and professions code §§ 2530 – 2539.14 471 title 16, division 13.3, california code of regulations §§ 1399.100 – 1399.144 472 title 16, division 13.4, california code of regulations §§ 1399.150 – 1399.199.14473 36. structural pest 474 business and professions code §§ 8500 – 8698.6 475 title 16, division 19, california code of regulations §§ 1900 – 1999.5 476 37. veterinary medicine 477 business and professions code §§ 4800 – 4917 478 467 applies to proprietary security officers (cal. bus. & prof. code §§ 7574 – 7478 (west)), private patrol officer (cal. bus. & prof. code §§ 7580 – 7588 (west)), alarm company operators (cal. bus. & prof. code §§ 7590 – 7599.80 (west)), private investigators (cal. bus. & prof. code §§ 7512 – 7573.5 (west)), repossessors (cal. bus. & prof. code §§ 7500 – 7511.5 (west)), and locksmiths (cal. bus. & prof. code §§ 6980 – 6981 (west)). 468 cal. bus. & prof. code §§ 6980 – 6980.84, 7500 – 7599.75 (west 2017). 469 cal. code regs. tit. 16, §§ 600 – 645 (west 2017). 470 applies to speech-language pathologists and audiologists. 471 cal. bus. & prof. code §§ 2530 – 2539.14 (west 2017). 472 cal. code regs. tit. 16, §§ 1399.100 – 1399.144 (west 2017). 473 cal. code regs. tit. 16, §§ 1399.150 – 1399.199.14 (west 2017). 474 applies to pest control operators, field representatives, and applicators. cal. bus. & prof. code § 8560 (west). 475 cal. bus. & prof. code §§ 8500 – 8698.6 (west 2017). 476 cal. code regs. tit. 16, §§ 1900 – 1999.5 (west 2017). 477 applies to veterinarians and individuals practicing veterinary medicine. cal. bus. & prof. code § 4828 (west). 478 cal. bus. & prof. code §§ 4800 – 4917 (west 2017). no. 2:33] professional licensing and teacher certification 113 title 16, division 20, california code of regulations §§ 2000 – 2086.9 479 civil code §§ 3051, 3052, §§ 3080 – 3080.03, §§ 1834.5 – 1834.6 480 health and safety code §§ 122125 – 122220 481 38. vn & pt (vocational nurses [lvns] and psychiatric technicians [pts]) 482 business and professions code §§ 2840 – 2895.5 and §§ 4500 – 4548 483 title 16, division 25, california code of regulations §§ 2500 – 2557.3 and §§ 2560 – 2595.3 484 39. naturopathic doctors and assistants business and professions code §§ 3610 – 3686 485 title 16, division 25, california code of regulations §§ 4200 – 4268 486 title 16, division 13.7, california code of regulations § 1399.434487 california commission on teaching credentialing 488 479 cal. code regs. tit. 16, §§ 2000 – 2086.9 (west 2017). 480 cal. civ. code §§ 3051, § 3052, 3080 – 3080.03, 1834.5 – 1834.6 (west 2017). 481 cal. health & safety code §§ 122125 – 122220 (west 2017). 482 applies only to vocational nurses and psychiatric technicians. 483 cal. bus. & prof. code §§ 2840 – 2895.5, 4500 – 4548 (west 2017). 484 cal. code regs. tit. 16, §§ 2500 – 2557.3, 2560 – 2595.3 (west 2017). 485 cal. bus. & prof. code §§ 3610 – 3686 (west 2017). 486 cal. code regs. tit. 16, §§ 4200-4268, 1399.434 (west 2017). 487 cal. code regs. tit. 16, § 1399.434 (west 2017). 488 california commission on teacher credentialing, about the commission, https://www.ctc.ca.gov/commission/default (last visited jul. 15, 2017) (citing the california commission on teacher credentialing serves “as a state standards board for educator preparation for the public schools of california, the licensing and credentialing of professional educators in the state, the enforcement of professional practices of 114 columbia journal of race and law [vol. 8:1 title 2, division 3, california education code §§ 489 title 5, division 8, california code of regulations §§ 80000 – 80694 490 first time application form 491 educators, and the discipline of credential holders in the state of california.”). 489 cal. educ. code §§ 44200 – 44409 (west 2017). 490 cal. code regs. tit. 5, § 80000 – 80694 (west 2017). 491 cal. comm’n on teacher credentialing, how to submit a paper application, https://www.ctc.ca.gov/credentials/submit-paper (last visited jul. 15, 2017). no. 2:33] professional licensing and teacher certification 115 ix. appendix 2–n.y. educ. law and department of education applications for professional licenses for non-citizens no statutory limitations based on immigration category for 29 professions 1. acupuncturist492 application form http://www.op.nysed.gov/prof/acu/acu1.pdf 2. athletic trainer.493 application form http://www.op.nysed.gov/prof/at/at1.pdf 3. audiologist 494 application form http://www.op.nysed.gov/prof/slpa/sla1.pdf 4. clinical laboratory technologist495 application form http://www.op.nysed.gov/prof/clt/clt1.pdf 5. cytotechnologist496 application form http://www.op.nysed.gov/prof/clt/clt1.pdf 6. clinical laboratory/ histological technician497 application form http://www.op.nysed.gov/prof/clt/cyt1.pdf 7. dental assistant 498 application form http://www.op.nysed.gov/prof/dent/dent-rdfl1.pdf 8. dietitian/nutritionist 499 application form http://www.op.nysed.gov/prof/diet/diet1.pdf 492 n.y.educ.law § 8214 (mckinney 2016). 377 n.y.educ.law § 8355 (mckinney 2016). 378 n.y.educ.law § 8206 (mckinney 2016). 379 n.y.educ.law § 8605 (mckinney 2016). 380 n.y.educ.law § 8605 (mckinney 2016). 381 n.y.educ.law §§ 8606, 8606-a (mckinney 2016). 382 n.y.educ.law § 6608-b (mckinney 2016). 383 n.y.educ.law § 8004 (mckinney 2016). 116 columbia journal of race and law [vol. 8:1 9. medical physicist 500 application form http://www.op.nysed.gov/prof/medphys/mp1.pdf 10. physician assistant 501 application form http://www.op.nysed.gov/prof/med/pa1.pdf 11. specialist assistant 502 application form http://www.op.nysed.gov/prof/med/sa1.pdf 12. mental health practitioner503 application form http://www.op.nysed.gov/prof/mhp/mft1.pdf 13. family therapist504 application form http://www.op.nysed.gov/prof/mhp/mft1.pdf 14. creative arts therapist505 application form http://www.op.nysed.gov/prof/mhp/cat1.pdf 15. psychoanalyst506 application form http://www.op.nysed.gov/prof/mhp/psyanl1.pdf 16. registered nurse507 application form http://www.op.nysed.gov/prof/nurse/nurse1.pdf 17. licensed practical nurse508 application form http://www.op.nysed.gov/prof/nurse/nurse1.pdf 500 n.y.educ.law § 8705 (mckinney 2016). 501 n.y.educ.law § 6541 (mckinney 2016). 502 n.y.educ.law § 6541 (mckinney 2016). 503 n.y. educ. law § 8403 (mckinney 2016). 504 n.y. educ. law § 8403 (mckinney 2016). 505 n.y. educ. law § 8404 (mckinney 2016). 506 n.y. educ. law § 8405 (mckinney 2016). 507 n.y. educ. law § 6905 (mckinney 2016). 508 n.y. educ. law § 6905 (mckinney 2016). no. 2:33] professional licensing and teacher certification 117 18. certification for nurse practitioners and clinical nurse specialists509 application forms http://www.op.nysed.gov/prof/nurse/np1.pdf; http://www.op.nysed.gov/prof/nurse/cns1.pdf 19. perfusionist permit 510 application form http://www.op.nysed.gov/prof/perfusion/perf5.pdf 20. physical therapist 511 application form http://www.op.nysed.gov/prof/pt/pt1.pdf 21. physical therapist assistant 512 application form http://www.op.nysed.gov/prof/pt/pt1.pdf 22. polysomnographic technologist (authorization) 513 application form http://www.op.nysed.gov/prof/polysom/polysom1.pdf 23. respiratory therapist 514 application form http://www.op.nysed.gov/prof/rt/rt1.pdf 24. respiratory technician515 application form http://www.op.n.gov/prof/rt/rt1.pdf 25. social worker master 516 application form http://www.op.nysed.gov/prof/sw/lmsw1.pdf 26. clinical social worker517 application form http://www.op.nysed.gov/prof/sw/lcsw1.pdf 509 n.y. educ. law §§ 6910, 6911 (mckinney 2016). 510 n.y. educ. law § 8609(9) (mckinney 2016). 511 n.y. educ. law § 6734 (mckinney 2016). 512 n.y. educ. law § 6734 (mckinney 2016). 513 n.y. educ. law § 8505 (mckinney 2016). 514 n.y. educ. law § 8504 (mckinney 2016). 515 n.y. educ. law § 8504 (mckinney 2016). 516 n.y. educ. law § 7704 (mckinney 2016). 118 columbia journal of race and law [vol. 8:1 27. speech pathologist/audiologist 518 application form http://www.op.nysed.gov/prof/slpa/sla1.pdf 28. licensed behavior analyst519 application form http://www.op.nysed.gov/prof/aba/aba1.pdf 29. certified behavior analyst assistant 520 application form http://www.op.nysed.gov/prof/aba/aba1.pdf specific language that citizenship is not a requirement and no immigration related criteria for 9 professions the statutes regarding the following professions specifically state that an individual does not need to meet any requirements as to u.s. citizenship and do not include an immigration category requirement. 1. interior design521 application form http://www.op.nysed.gov/prof/id/intdesform1.pdf 2. architect522 application form http://www.op.nysed.gov/prof/arch/arch1.pdf 3. occupational therapist523 application form http://www.op.nysed.gov/prof/ot/ot1.pdf 517 n.y. educ. law § 7704 (mckinney 2016). 518 n.y. educ. law § 8206 (mckinney 2016). 519 n.y. educ. law § 8804(2) (mckinney 2016). 520 n.y. educ. law § 8804(1) (mckinney 2016). 521 n.y. educ. law § 8305 (mckinney 2016). 522 n.y. educ. law § 7304 (mckinney 2016). 523 n.y. educ. law § 7904 (mckinney 2016). no. 2:33] professional licensing and teacher certification 119 4. occupational therapist assistant524 application form http://www.op.nysed.gov/prof/ot/ot1.pdf 5. ophthalmic dispensing525 application form http://www.op.nysed.gov/prof/od/od1.pdf 6. optometrist526 application form http://www.op.nysed.gov/prof/optom/opt1.pdf 7. podiatrist527 application form http://www.op.nysed.gov/prof/pod/pod1.pdf 8. psychologist528 application form http://www.op.nysed.gov/prof/psych/psych1.pdf 9. certified public accountant529 application form http://www.op.nysed.gov/prof/cpa/cpa1.pdf statutes limiting licenses for 13 professions declared unconstitutional the statutory limits on non-citizen eligibility for thirteen professions was declared unconstitutional in dandamudi v. tisch530 1. chiropractor.531 application form http://www.op.nysed.gov/prof/chiro/chiro1.pdf 2. certified shorthand reporter532 application form http://www.op.nysed.gov/prof/csr/csr1.pdf 524 n.y. educ. law § 7904 (mckinney 2016). 525 n.y. educ. law § 7124 (mckinney 2016). 526 n.y. educ. law § 7104 (mckinney 2016). 527 n.y. educ. law § 7004 (mckinney 2016). 528 n.y. educ. law § 7603 (mckinney 2016). 529 n.y. educ. law § 7404 (mckinney 2016). 530 686 f. 3d 66 (2012). 531 n.y. educ. law § 6554 (mckinney 2016). 120 columbia journal of race and law [vol. 8:1 3. dentist533 application form http://www.op.nysed.gov/prof/dent/dent1.pdf 4. dental hygienist534 application form http://www.op.nysed.gov/prof/dent/dh1.pdf 5. engineer535 application form http://www.op.nysed.gov/prof/pels/pe1.pdf 6. land surveyor536 application form http://www.op.nysed.gov/prof/pels/lsurv1.pdf 7. landscape architect537 application form http://www.op.nysed.gov/prof/larch/landarch1.pdf 8. massage therapist538 application form http://www.op.nysed.gov/prof/mt/mt1.pdf 9. physician539 application form http://www.op.nysed.gov/prof/med/med1.pdf 10. midwife540 application form http://www.op.nysed.gov/prof/midwife/mid1.pdf 11. pharmacist 541 application form http://www.op.nysed.gov/prof/pharm/pharm1.pdf 532 n.y. educ. law § 7504 (mckinney 2016). 533 n.y. educ. law § 6604 (mckinney 2016). 534 n.y. educ. law § 6609 (mckinney 2016). 535 n.y. educ. law § 7206 (mckinney 2016). 536 n.y. educ. law § 7206-a (mckinney 2016). 537 n.y. educ. law § 7324 (mckinney 2016). 538 n.y. educ. law § 7804 (mckinney 2016). 539 n.y. educ. law § 6524 (mckinney 2016). 540 n.y. educ. law § 6955 (mckinney 2016). 541 n.y. educ. law § 6805 (mckinney 2016). no. 2:33] professional licensing and teacher certification 121 12. veterinarian542 application form http://www.op.nysed.gov/prof/vetmed/vet1.pdf 13. veterinary technician 543 application form http://www.op.nysed.gov/prof/vetmed/vt1.pdf 542 n.y. educ. law §§ 6704, 6711 (mckinney 2016). 543 n.y. educ. law § 6711 (mckinney 2016). columbia journal of race and law vol. 11 january 2021 no. 1 note adopting the cumulative harm framework to address secondgeneration discrimination nicolás quaid galván! analytical frameworks of constitutional review vary. one framework is the “cumulative harm framework.” this method examines the entirety of harm experienced by an individual to determine whether the harms rise to the level of a constitutional violation. for example, in the context of one’s right to a fair trial, a reviewing court will aggregate the harm from each error committed at trial. here, a reviewing court may find that the total harm resulting from the accumulation of all errors may have deprived the defendant’s right to a fair trial—even if each error in isolation would not. another analytical framework is the “sequential approach.” this framework reviews each harm experienced by the individual in isolation to determine whether each harm independently violated an individual’s rights. for example, if the sequential approach was applied to the scenario above, a reviewing court would examine an error at trial and assess whether that specific error deprived the defendant’s right to a fair trial. if this specific harm is insufficient for a ! editor-in-chief, columbia journal of race and law, volume 11. j.d. candidate, columbia law school, 2021. i would like to thank professor jamal greene for his insight and guidance in writing this note. i would also like thank the entire staff of the columbia journal of race and law, especially joella jones, jessica lim, vinay patel, and amira perryman for all of their work and editorial contributions. this note is for my abuelos, all of whom walked across the border from méxico. it is also for my parents. your work has led me to become the first in our family to attend law school. finally, i am grateful for my partner, serengeti. your confidence in my work, patience, and love has made this note possible. 148 colum. j. race & l. [vol. 11:147 constitutional violation, a reviewing court would then examine the subsequent error at trial and conduct the same analysis. under the sequential approach, even if the trial was saturated with minor errors—each of which were insufficiently egregious to result in an unfair trial—a defendant would not be entitled to a new trial. a reviewing court’s analytical framework, therefore, can alter the outcome of a case. this note analyzes different applications of the cumulative harm framework and the sequential approach. it then evaluates the advantages and disadvantages of the cumulative harm framework. this note concludes by arguing for broader adoption of the cumulative harm framework, particularly as an effective tool in addressing second-generation discrimination faced by minorities and people of color. i. introduction...................................................................... 150 ii. the judiciary’s current adoption and limitation of the cumulative harm framework........................... 153 a. the fourteenth amendment’s guarantee of a fair trial............................................................... 154 b. ineffective assistance of counsel.......................... 157 c. prosecutorial misconduct claims.......................... 158 d. “cruel and unusual” prison conditions ............... 159 e. the cumulative harm framework within asylum law .......................................................... 162 iii. the judiciary’s applications of the “sequential approach” ...................................................................... 165 a. the “sequential approach” of the fourth amendment........................................................... 165 b. determining an “undue burden”: application of both the cumulative harm framework and the sequential approach............................................. 167 c. an explicit rejection of the cumulative harm framework............................................................ 169 iv. evaluating the cumulative harm framework ............ 170 a. advantages of the cumulative harm framework............................................................ 171 2021] cumulative harm framework 149 1. the cumulative harm framework evaluates the harm from the perspective of the right-holder ......................................... 171 2. courts have the institutional capacity for a broader adoption of the cumulative harm framework...................................................... 173 3. the cumulative harm framework more effectively addresses second-generation harms than the sequential approach .......... 175 b. disadvantages of the cumulative harm framework............................................................ 183 1. difficulty in administration: where to draw the cumulative line? ........................... 184 2. potential for unrestrained judicial discretion........................................................ 187 3. prospective vs. retroactive litigation............ 190 c. the judiciary should adopt the cumulative harm framework ................................................. 193 v. conclusion....................................................................... 194 150 colum. j. race & l. [vol. 11:147 i. introduction many constitutional claims are analyzed as discrete, isolated occurrences. examining a woman’s right to receive an abortion is an instructive vehicle to demonstrate the power of different analytical frameworks.1 imagine a pregnant person2 has chosen to exercise their “fundamental right to abortion.”3 imagine that the government has passed four laws that impede on this person’s ability to exercise this right. one law requires, after the initial visit to the doctor, that this person wait an additional twenty-four hours to consider the “nature of the procedure,” the health risks, and the probable age of the “unborn child.”4 this first law also requires this person to produce a written statement that they have taken these factors into consideration.5 if this person is married, the second law is triggered. the second law requires the person to produce a signed statement from their spouse that they are about to undergo an abortion.6 a third law requires physicians who perform abortions to have “admitting privileges” at a local hospital, and this hospital has the discretion whether to grant the physician this privilege.7 a fourth law mandates that private insurance can only be used for an abortion when the person’s life would be threatened if the pregnancy is carried to term.8 each law, in some 1 roe v. wade, 410 u.s. 113, 153 (1973) (“th[e] right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”). 2 of course, reproductive rights belong to women, non-binary and intersex individuals, transgender men, and anyone with a uterus. this note alternates between the terms “woman” and “pregnant person” to respect many individuals who do not identify as woman and have potential to become pregnant. see joella jones, note, the failure to protect pregnant pretrial detainees: the possibility of constitutional relief in the second circuit under a fourteenth amendment analysis, 10 colum. j. race & l. 139, 141 n.1 (2020); see also jessica clarke, pregnant people?, 119 colum. l. rev. f. 173, 177 (2019). further, when referencing a “pregnant person,” this note employs the singular “they” to honor those who do not identify with the gender binary. 3 harris v. mcrae, 448 u.s. 297, 313 (1980). 4 planned parenthood of se. pa. v. casey, 505 u.s. 833, 881 (1992). 5 id. 6 id. at 887. 7 see an overview of abortion law, guttmacher inst., www.guttmacher.org/state-policy/explore/overview-abortion-laws [https://perma.cc/r3hb-79wh] (sept. 1, 2020). see, e.g., june med. servs. l.l.c. v. russo, 140 s. ct. 2103 (2020) (describing active admitting privileges to mean that a doctor must be a member in good standing of the hospital’s medical staff with the ability to admit a patient and to provide diagnostic and surgical services to such patient) (citations omitted). 8 russo, 410 s. ct. at 2103. 2021] cumulative harm framework 151 way, imposes a different burden upon this person in obtaining an abortion. this pregnant person now challenges these laws, arguing that they collectively present an “undue burden.”9 in this scenario, this person has not experienced a direct ban—a firstgeneration barrier—on their reproductive rights.10 rather, this person faces second-generation barriers in attempting to exercise their rights—barriers which are more concealed, complex, and, arguably, more dangerous than their explicit predecessors.11 a reviewing court, in considering the constitutionality of these regulations, will begin by analyzing whether the first law presents an undue burden, and then conduct the same analysis on the second, third, and fourth law.12 under this method of constitutional review, the overall harm experienced by this person is not considered.13 rather, the harm from each law is isolated and then analyzed.14 commentators have called this analytical method the “sequential approach.”15 9 casey, 505 u.s. at 874. 10 see, e.g., shelby cnty., ala. v. holder, 570 u.s. 529 (2013) (ginsburg, j., dissenting) (discussing first-generation discrimination as explicit denial of rights). 11 see, e.g., susan sturm, second generation employment discrimination: a structural approach, 101 colum. l. rev. 458, 476 (2001) (“[n]ormative theories [of second-generation discrimination] are plural, subtle, and, not surprisingly, more complex. one such theory would apply to decisions or conditions that violate a norm of functional, as opposed to formal, equality of treatment. this theory defines discrimination to include differences in treatment based on group membership, whether consciously motivated or not, that produce unequal outcome.”). 12 see casey, 505 u.s. at 879. (“we now consider the separate statutory sections at issue.”). the first two laws are not a hypothetical, but are the laws challenged in planned parenthood of southeastern pennsylvania v. casey. in this case, the supreme court upheld the statute requiring a 24-hour waiting period. id. at 887. the supreme court invalidated the statute requiring a married woman to obtain informed consent from her spouse. id. at 898. 13 see id. 14 see kate l. fetrow, taking abortion rights seriously: toward a holistic undue burden jurisprudence, 70 stan. l. rev. 319, 328 (2018) (“indeed, both the parties and the court [in casey] considered the admitting privileges requirement and the surgical center requirement separately-not looking at whether the two challenged laws together might impose a greater burden on women than either of the two acting alone.”). see also, whole woman’s health v. hellerstedt, 136 s. ct. 2292, 2310 (2016) (evaluating two different requirements of a statute, but only focusing on the “relevant statute here”); see also, planned parenthood of southeastern pennsylvania v. casey, 505 u.s. 833, 879 (1992) (“we now consider the separate statutory sections at issue.”). 15 see casey, 505 u.s. at 879 (1992) (“we now consider the separate statutory sections at issue.”); orin s. kerr, the mosaic theory of the fourth amendment, 111 mich. l. rev. 311, 314 (2012) (defining the “sequential 152 colum. j. race & l. [vol. 11:147 a different analytical method would not analyze each harm in isolation. rather, what i call the “cumulative harm framework” reviews the entirety of this person’s harm—the impact from the four laws above—to determine whether this pregnant person has experienced an “undue burden” in attempting to receive an abortion.16 stated differently, the four laws would be analyzed for their cumulative impact under this methodology.17 under the hypothetical above, perhaps the mandatory twenty-four-hour waiting period is insufficient to trigger a constitutional violation. but, maybe the twenty-fourhour waiting period combined with the spousal consent requirement, the admitting privileges requirement, and the limitations on private health insurance, presents an undue burden. this note explores these two analytical frameworks of judicial review. part ii discusses different substantive areas of law in which a reviewing court adopts the cumulative harm framework. part iii explores the different substantive areas of law in which a reviewing court adopts the sequential approach. part iv evaluates the cumulative harm framework. this section begins by arguing that the framework more appropriately assesses constitutional harms from the perspective of the rightholder and that courts have the institutional capacity to adopt the framework more broadly. it asserts this framework is approach” of fourth amendment analysis as taking “snapshot of each discrete step and assess[ing] whether that discrete step at that discrete time constitutes a search”). 16 commentators have described this analytical framework as “aggregate harm.” kerry abrams & brandon l. garrett, cumulative constitutional rights, 97 b.u. l. rev. 1309, 1316 (2017). others have called it the “cumulative harm model.” scott rempell, defining persecution, 2013 utah l. rev. 283, 288. i use the term “cumulative harm framework” because it suggests that there are multiple frameworks of constitutional review and that this analytical framework is not limited to one substantive area of law. i also use this term because “aggregate harm” is sometimes used to describe the collective harm experienced by groups of people. see, e.g., heather k. gerken, understanding the right to an undiluted vote, 114 harv. l. rev. 1663, 1667 (2001) (discussing how vote dilution cases are understood as “aggregate rights” and a group’s deprivation of the right to meaningfully participate in the voting process as an “aggregate harm”). in contrast, the cumulative harm framework focuses on the total harm experienced by an individual. 17 see abrams & garrett, supra note 16, at 1318 (“under strickland, courts ask not whether each individual act or decision by a defendant's counsel was deficient, but instead whether all of the lawyer’s errors, taken together, amounted to a constitutionally deficient performance.”). see also, strickland v. washington, 466 u.s. 668, 695 (1984) (“in making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”). 2021] cumulative harm framework 153 necessary to addressing second-generation discrimination experienced by black people,18 latinxs,19 and other minorities and communities of color. part iv also critiques the framework. it argues that the cumulative harm framework is difficult to administer because there is no clear limit on which facts should be cumulated. it also argues that the framework permits unrestrained judicial review. further, it argues that the cumulative harm framework may not be suited for evaluating prospective harm and facial challenges of law. this note concludes by arguing for broader adoption of the cumulative harm framework because of its ability to prevent secondgeneration discrimination. ii. the judiciary’s current adoption and limitation of the cumulative harm framework this section provides an overview of the judiciary’s adoption of the cumulative harm framework. it examines six different substantive areas to explain different applications of the cumulative harm framework. 18 i use the terms “black” and “african american” interchangeably by adhering to professor kimberlé crenshaw’s formulation of these terms: when using ‘black,’ i shall use an upper-case ‘b’ to reflect my view that blacks, like asians, latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun. . . . ‘black’ should not be regarded ‘as merely a color of skin pigmentation, but as a heritage, an experience, a cultural and personal identity, the meaning of which becomes specifically stigmatic and/or glorious and/or ordinary under specific social conditions.’ kimberlé williams crenshaw, race, reform, and retrenchment: transformation and legitimation in antidiscrimination law, 101 harv. l. rev. 1331, 1332 n.2 (1988) (quoting catherine a. mackinnon, feminism, marxism, method, and the state: an agenda for theory, 7 signs: j. women culture & soc’y 515, 516 (1982)). 19 i use the term “latinx” to reject the gender binary that is inherent linguistically in “latino/as.” see, e.g., luz e. herrera & pilar margarita hernández escontrías, the network for justice: pursuing a latinx civil rights agenda, 21 harv. latinx l. rev. 165, 165 n.1 (2018) (using the term “latinx” throughout the article as a gender-neutral replacement for latino/as and latin@s). i also use this term to reject “hispanic” because it exclusively honors those of spanish origin. jyoti nanda, the construction and criminalization of disability in school incarceration, 9 colum. j. race & l. 265, 265 n.2 (2019). 154 colum. j. race & l. [vol. 11:147 a. the fourteenth amendment’s guarantee of a fair trial a defendant enjoys the right to a fair trial.20 in taylor v. kentucky, the supreme court adopted the cumulative harm framework as the test to determine whether a defendant had been deprived of their right to a fair trial.21 commentators22 and courts23 have called this test the cumulative error doctrine. as the eleventh circuit described, the cumulative error doctrine “provides that an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield a denial of the constitutional right to a fair trial, which calls for reversal.”24 such errors are analyzed for their cumulative effect because, as the tenth circuit held, “[t]he cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.”25 20 estelle v. williams, 425 u.s. 501, 503 (2006) (“the right to a fair trial is a fundamental liberty secured by the fourteenth amendment.”); u.s. const. amend. xiv, § 1. 21 taylor v. kentucky, 436 u.s. 478, 487 n.15 (1978). (“because of our conclusion that the cumulative effect of the potentially damaging circumstances of this case violated the due process guarantee of fundamental fairness in the absence of an instruction as to the presumption of innocence, we do not reach petitioner’s further claim that the refusal to instruct that an indictment is not evidence independently constituted reversible error.”). 22 ruth a. moyer, to err is human; to cumulate, judicious: the need for u.s. supreme court guidance on whether federal habeas courts reviewing state convictions may cumulatively assess strickland errors, 61 drake l. rev. 447, 450 (2013) (“[t]he cumulative-error doctrine instructs that ‘an aggregation of non-reversible errors [such as harmless errors] can yield a denial of the constitutional right to a fair trial, which calls for reversal.’”) (quoting united states v. munoz, 150 f.3d 401, 418 (5th cir. 1998)). see also, abrams & garrett, supra note 16, at 1317. 23 united states. v. azmat, 805 f.3d 1018, 1045 (11th cir. 2015) (“under the cumulative-error doctrine, we will reverse a conviction if the cumulative effect of the errors is prejudicial, even if the prejudice caused by each individual error was harmless.”). see also, munoz, 150 f.3d at 418 (“[t]he cumulative error doctrine . . . provides that an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors)”); united states v. sepulveda, 15 f.3d 1161, 1196 (1st cir. 1993) (“of necessity, claims under the cumulative error doctrine are sui generis. a reviewing tribunal must consider each such claim against the background of the case as a whole, paying particular weight to factors such as the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the district court dealt with the errors as they arose (including the efficacy—or lack of efficacy—of any remedial efforts); and the strength of the government's case.”). 24 munoz, 150 f.3d at 418. 25 united states v. rivera, 900 f.2d 1462, 1469 (10th cir. 1990). see also, chambers v. mississippi, 410 u.s. 284, 290 n.3 (1973) (“petitioner’s contention . . . is that he was denied ‘fundamental fairness guaranteed by the fourteenth amendment’ as a result of several evidentiary rulings. his claim, the 2021] cumulative harm framework 155 in taylor, the supreme court aggregated the harm resulting from four actions independently caused by two actors.26 the first two harms were caused by the trial judge’s rejection of the defense’s following two requests: an instruction to the jury that law presumes a defendant to be innocent of a crime27 and that the defendant’s indictment should not be considered as evidence to determine the defendant’s guilt.28 the supreme court also aggregated the harms caused by the prosecution after the trial judge had rejected the defendant’s request. during closing argument, the prosecution stated “like every other defendant who’s ever been tried who’s in the penitentiary or in the reformatory today, has this presumption of innocence until proven guilty beyond a reasonable doubt”;29 and that “[o]ne of the first things defendants do after they rip someone off, they get rid of the evidence as fast and as quickly as they can.”30 the taylor court found that the four harms alone were “not necessarily improper, but the combination” resulted in an unfair trial.31 even though errors resulted from different actors, the supreme court permitted the aggregation of harm caused by the trial judge’s refusal to grant specified jury instructions paired with the prosecution’s statements.32 thus, the analytical method adopted by the supreme court for determining whether a defendant experienced a fair trial is the cumulative harm framework. some circuit courts33 have tailored their implementation of taylor’s cumulative harm framework within a federal review substance of which we accept in this opinion, rests on the cumulative effect of those rulings in frustrating his efforts to develop an exculpatory defense. although he objected to each ruling individually, petitioner’s constitutional claim—based as it is on the cumulative impact of the rulings—could not have been raised and ruled upon prior to the conclusion of chambers’ evidentiary presentation.”). 26 taylor, 436 u.s. at 480–81, 486–87. 27 id. at 480. 28 id. at 480–81. 29 id. at 486. 30 id. at 487. 31 id. 32 id. at 487–88 (“the prosecutor’s description of those events was not necessarily improper, but the combination of the skeletal instructions, the possible harmful inferences from the references to the indictment, and the repeated suggestions that petitioner’s status as a defendant tended to establish his guilt created a genuine danger that the jury would convict petitioner on the basis of those extraneous considerations, rather than on the evidence introduced at trial.”). 33 see, e.g., derden v. mcneel, 978 f.2d 1453, 1458–59 (5th cir. 1992) (“first, any cumulative error theory must refer only to errors committed in the state trial court. a habeas petitioner may not just complain of unfavorable 156 colum. j. race & l. [vol. 11:147 of state convictions.34 the fifth circuit, for example, imposed four limitations on the cumulative error-doctrine: (1) the “court should only consider actual ‘errors’ committed at the trial court”; (2) the “error complained of must not be procedurally barred, and, regardless of procedural bar, the defendant must have objected to the error at trial”; (3) “state law errors are not cognizable, unless they individually amount to a due process violation”; and (4) “the court must review the trial record as a whole and ask ‘whether the errors more likely than not caused a suspect verdict.’”35 the fifth circuit also includes actions from the trial judge in the cumulative harm framework “only if the judge so favors the prosecution that he appears to predispose the jury toward a finding of guilt or to take over the prosecutorial role.”36 the tenth circuit also limits actions that are eligible to be aggregated to “error[s],”37 rather than the aggregation of “nonerrors.”38 however, the tenth circuit goes further and requires a defendant to “demonstrate that the ruling was an error” to subject the error to the cumulative harm calculus.39 the fifth circuit limits the scope of the cumulative harm framework because of the potential dangers of adopting a vague legal standard.40 adopting an unfettered cumulative harm rulings or events in the effort to cumulate errors. . . . second, the error complained of must not have been procedurally barred from habeas corpus review. . . . third, errors of state law, including evidentiary errors, are not cognizable in habeas corpus as such. . . . [further] [t]he conduct of a trial judge can violate due process only if the judge so favors the prosecution that he appears to predispose the jury toward a finding of guilt or to take over the prosecutorial role.”). see also, united states v. rivera, 900 f.2d 1462, 1470 (10th cir. 1990) (“impact alone, not traceable to error, cannot form the basis for reversal. the same principles apply to a cumulative-error analysis, and we therefore hold that a cumulative-error analysis should evaluate only the effect of matters determined to be error, not the cumulative effect of non-errors.”). 34 see moyer, supra note 22, at 455–58. 35 pursell v. horn, 187 f.supp.2d 260, 375 (w.d.p.a. 2002) (quoting derden, 978 f.2d at 1457). 36 derden, 978 f.2d at 1459. 37 rivera, 900 f.2d at 1470 n.7 (defining “errors” to “refer to any violation of an objective legal rule. . . . [such as] some violation of constitutional, statutory, or common law, or a violation of an administrative regulation or an established rule of court”). 38 id. at 1471. see also, united states v. hopkins, 608 f. app’x 637, 648 (10th cir. 2015) (“errors are only those violations ‘of an established legal standard defining a particular error,’ not just incidents a reviewing court considers troubling.”) (quoting rivera, 900 f.2d at 1471). 39 rivera, 900 f.2d at 1470 40 see derden, 978 f.2d at 1458. (“[a] free-floating fundamental fairness rule subverts the uniformity of results that is the basic goal of an organized legal system: one defendant may persuade the court that his five nonconstitutional errors denied fundamental fairness, while another, less 2021] cumulative harm framework 157 framework, the fifth circuit reasoned, would lead to an “infinitely expandable concept that, allowed to run amok, could easily swallow the jurisprudence construing the specific guarantees of the bill of rights and determining minimum standards of procedural due process.”41 the fifth circuit limits which actions may be aggregated under the cumulative error doctrine to encourage uniformity in its application.42 an unrestricted cumulative harm framework, the fifth circuit held, results in a “free-floating fundamental fairness rule [which] subverts the uniformity of results that is the basic goal of an organized legal system.”43 the fifth circuit continued and explained that “one defendant may persuade the court that his five non-constitutional errors denied fundamental fairness, while another, less imaginative, may be denied relief simply because he cited only four of the same errors out of the record.”44 although courts have adopted limitations, the cumulative harm framework is the analytical method to determine when a defendant was deprived of their right to a fair trial.45 b. ineffective assistance of counsel the sixth amendment grants a criminal defendant the right to reasonably effective assistance of counsel.46 the supreme court, in strickland v. washington, held that a defendant is deprived of this right when (1) “counsel’s representation fell below an objective standard of reasonableness,”47 and (2) that imaginative, may be denied relief simply because he cited only four of the same errors out of the record.”). 41 id. at 1457. 42 id. at 1458 (“to avert such a conflict . . . we can at least eliminate certain types of complaints that should generally not be considered in cumulative error review. by this process of elimination, minimum standards at least normally applicable to a cumulative error claim of constitutional dimension may be expressed.”). 43 id. at 1458. 44 id. 45 taylor v. kentucky, 436 u.s. 478, 487 n.15 (1978) (“because of our conclusion that the cumulative effect of the potentially damaging circumstances of this case violated the due process guarantee of fundamental fairness in the absence of an instruction as to the presumption of innocence, we do not reach petitioner’s further claim that the refusal to instruct that an indictment is not evidence independently constituted reversible error.”). 46 u.s. const. amend. vi (“in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.”); mcmann v. richardson, 397 u.s. 759, 771 n.14 (1970) (“it has long been recognized that the right to counsel is the right to the effective assistance of counsel.”); strickland v. washington, 466 u.s. 668, 687 (1984) (“as all the federal courts of appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance.”). 47 strickland, 466 u.s. at 687–88. 158 colum. j. race & l. [vol. 11:147 such deficient performance “prejudiced the defense.”48 using this test, the strickland court specified that a reviewing court “hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”49 the errors of counsel, under a strickland analysis, are not analyzed in isolation, but are analyzed for their aggregate effect.50 therefore, a court reviewing an ineffective assistance of counsel claim adopts the cumulative harm framework as its analytical methodology.51 the cumulative harm framework under strickland is also temporally expansive.52 its review includes the various stages of a criminal case, including “the course of investigation[s], plea negotiations, trial, or appeal.”53 for example, the strickland court held that “[i]f counsel does not conduct a substantial investigation into each of several plausible lines of defense, assistance may nonetheless be effective.”54 the strickland court also held that, “[f]or purposes of describing counsel’s duties, therefore, [the] proceeding need not be distinguished from an ordinary trial.”55 c. prosecutorial misconduct claims the cumulative harm framework is the analytical method adopted by courts reviewing a prosecutorial misconduct claim.56 48 id. at 687. 49 id. at 695 (emphasis added). 50 id. (“[t]he question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. in making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”). 51 see porter v. mccollum, 558 u.s. 30, 41 (2009) (“to assess that probability [of whether the defendant’s counsel was ineffective], we consider ‘the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding’—and ‘reweig[h] it against the evidence in aggravation.’”) (quoting williams v. taylor, 529 u.s. 362, 397–398 (2000)). see also berghuis v. thompkins, 560 u.s. 370, 389 (2010) (“in assessing prejudice, courts ‘must consider the totality of the evidence before the judge or jury.’”) (quoting strickland, 466 u.s. at 695). 52 strickland, 466 u.s. at 698 (“the facts as described above . . . make clear that the conduct of respondent’s counsel at and before respondent's sentencing proceeding cannot be found unreasonable.”). 53 abrams & garrett, supra note 16, at 1318. see missouri v. frye, 566 u.s. 134, 140 (2012) (“it is well settled that the right to the effective assistance of counsel applies to certain steps before trial. . . . critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea.”). 54 strickland, 466 u.s. at 681. 55 id. at 687. 56 kyles v. whitley, 514 u.s. 419, 421 (1995) (“[w]e follow the established rule that the state’s obligation under brady v. maryland . . . to 2021] cumulative harm framework 159 in brady v. maryland,57 the supreme court held that it is unconstitutional for the prosecution to suppress evidence favorable to a defendant upon request where the evidence is “material either to guilt or to punishment.”58 material evidence has included, “for example, statements of witnesses or physical evidence that conflicts with the prosecution’s witnesses, and evidence that could allow the defense to impeach a witness’ credibility.”59 under brady, a reviewing court does not ask “whether each piece of evidence suppressed led to an unfair trial.”60 rather, a brady claim “turns on the cumulative effect of all such evidence suppressed by the government,”61 because a reviewing court is required to assess the “net effect of the evidence withheld by the state.”62 thus, a reviewing court adopts the cumulative harm framework when evaluating a brady claim.63 d. “cruel and unusual” prison conditions in rhodes v. chapman, the supreme court adopted the cumulative harm framework to determine whether the disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the government.”) (citations omitted). see also, wearry v. cain, 136 s.ct. 1002, 1007 (2016) (“[t]he state postconviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively.”). 57 brady v. maryland, 373 u.s. 83 (1963). in this case, the defendant admitted that he was involved in a murder, but denied that he conducted the killing by arguing that his co-defendant committed the killing. the defendant’s counsel requested that the prosecution allow him to examine the co-defendant’s extrajudicial statements. the prosecution gave the defense counsel some statements, but suppressed one statement of the co-defendant in which the codefendant admitted the homicide. this particular statement was withheld by the prosecution and was not uncovered by defense counsel until after the defendant had been tried, convicted, and sentenced, and after the defendant’s conviction had been affirmed. see id. at 84. 58 id. at 87. 59 cadene a. russell, comment, when justice is done: expanding a defendant’s right to the disclosure of exculpatory evidence on the 51st anniversary of brady v. maryland, 58 how. l.j. 237, 242–43 (2014) (footnote omitted). 60 abrams & garrett, supra note 16, at 1319. 61 kyles, 514 u.s. at 420. 62 id. 63 see, e.g., turner v. united states, 137 s.ct. 1885, 1895 (2017) (“we conclude only that in the context of this trial, with respect to these witnesses, the cumulative effect of the withheld evidence is insufficient to ‘undermine confidence’ in the jury’s verdict . . . .”) (quoting kyles, 514 u.s. at 434). see also, cone v. bell, 556 u.s. 449, 476 (2009) (“although we conclude that the suppressed evidence was not material to cone’s conviction for first-degree murder, the lower courts erred in failing to assess the cumulative effect of the suppressed evidence with respect to cone’s capital sentence.”). 160 colum. j. race & l. [vol. 11:147 government’s incarceration practices constituted cruel and unusual punishment.64 the rhodes court held that prison “conditions . . . alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities.”65 in effect, as noted by justice brennan’s concurrence in rhodes, the rhodes majority adopted “totality-of-the-circumstances test” by evaluating the cumulative effect of individual conditions of confinement to determine whether such conditions were cruel or unusual.66 thus, the accumulation of individual harms could rise to a cognizable constitutional violation, even if the harms resulting from each condition of confinement, in isolation, would not rise to a constitutional violation.67 the supreme court, in wilson v. seiter, however, tailored the use of the cumulative harm framework.68 pearly l. wilson and another inmate argued that their overall prison conditions were cruel and unusual.69 wilson advanced his claim by aggregating the harm from the following conditions: wilson was forced sleep in a double bunk with another inmate; wilson’s clothing provided by the prison was inadequate in keeping inmates warm; wilson’s cell insulation was inadequate in keeping cell temperature warm during the winter; the summer temperatures were excessively high, resulting in heat-related rashes for some inmates and created respiratory problems for others; the food services were a threat to the inmate’s health because of inadequate sanitation, ventilation, and sewage; and the restrooms were dirty, slippery, and malodorous.70 relying on rhodes, wilson argued that these conditions “in combination” resulted in overall cruel and unusual prison conditions.71 wilson further argued that these conditions were dependent upon each 64 rhodes v. chapman, 452 u.s. 337 (1981); u.s. const. amend. viii, (“excessive bail shall not be required . . . nor cruel and unusual punishments inflicted.”). 65 rhodes, 452 u.s. at 347 (emphasis added). 66 id. at 363 (brennan, j., concurring). 67 id. at 347. see also, hutto v. finney, 437 u.s. 678, 687 (1978) (“we find no error in the court's conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment.”). 68 wilson v. seiter, 501 u.s. 294 (1991). 69 brief for petitioner, wilson v. seiter, 501 u.s. 294 (1991) (no. 182937), 1990 wl 505735, at *37 n.32 [hereinafter brief for wilson] (“while the overcrowding might not be unconstitutional in itself, because the effect of overcrowding cannot be separated from the overall conditions of the unit, the trial court on remand should not arbitrarily exclude evidence of the impact of overcrowding on the overall conditions in the dormitory.”). 70 id. at *3. 71 id. at *36 (quoting rhodes, 452 u.s. at 347). 2021] cumulative harm framework 161 other, as “the adequacy of the ventilation is directly related to the degree of crowding in the facility. the reasonableness of using two fans to supply ventilation for a dormitory turns on the number of bodies in the dormitory.”72 the supreme court rejected wilson’s claim.73 the supreme court explained that “[s]ome conditions of confinement may establish an eighth amendment violation ‘in combination’ when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.”74 the wilson court thus clarified that the cumulative harm framework can only be used to combine the effects of facts relating to a single condition of confinement, such as aggregating the effects of “low cell temperature at night combined with a failure to issue blankets” to demonstrate insufficient warmth.75 therefore, under wilson, the supreme court does not permit a claim based on what this note calls cross-categorical cumulation.76 for example, cross-categorical cumulation would attempt to prove that overall conditions of confinement would amount to an eighth amendment violation by aggregating the harm from (1) cold nighttime cell conditions, (2) the deprivation of exercise because inmates were confined to their cells for twenty hours per day, and (3) inadequate sustenance because inmates were only provided with one meal a day. in this hypothetical, each fact points to three distinct categories: (1) insufficient heat, (2) lack of exercise, (3) and insufficient food. each fact does not reinforce either of the three claims—a lack of exercise due to required confinement does not support the proposition that there was insufficient heat, and vice versa. wilson attempted to persuade the supreme court that cross-categorical cumulation was the appropriate analytical method for his claim by arguing that adequate ventilation depends on the amount of persons within a particular cell.77 the 72 id. 73 wilson, 501 u.s. at 305 (“nothing so amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when so specific deprivation of a single human need exists.”) 74 id. at 304 (quoting rhodes, 452 u.s. at 347). 75 id. 76 this note uses the term “cross-categorical cumulation” to refer to the cumulation of nonmutual enforcing facts or actions. 77 see brief for wilson, supra note 69, at *36–37 (“certainly the adequacy of the ventilation is directly related to the degree of crowding in the facility. the reasonableness of using two fans to supply ventilation for a dormitory turns on the number of bodies in the dormitory. minimally adequate 162 colum. j. race & l. [vol. 11:147 wilson court rejected the cross-categorical cumulation claim.78 the wilson court reasoned that even if “some prison conditions may interact in this [cumulative] fashion [it] is a far cry from saying that all prison conditions” aggregate together like a “seamless web” to find an eighth amendment violation.79 the wilson court further explained that there cannot be a finding of “cruel and unusual punishment when no specific deprivation of a single human need exists.”80 stated differently, in applying the cumulative harm framework, the seventh circuit’s reasoned, that rhodes does not “allow a number of otherwise unquestionably constitutional conditions to become unconstitutional by their aggregation.”81 many courts, in determining whether conditions of confinement violate the eighth amendment, both employ and restrict the use of the cumulative harm framework.82 e. the cumulative harm framework within asylum law the united states, under the 1951 united nations convention relating to the status of refugees,83 the 1967 united ventilation for 143 prisoners is different from the ventilation necessary for the smaller number of prisoners that could be accommodated were the dormitory not double-bunked.”). 78 see wilson, 501 u.s. at 305 (“[o]ur statement in rhodes was not meant to establish the broad proposition that petitioner asserts. some conditions of confinement may establish an eighth amendment violation ‘in combination’ when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise—for example, a low cell temperature at night combined with a failure to issue blankets.”) (quoting rhodes, 452 u.s. at 347). 79 id. 80 id. 81 madyun v. thompson, 657 f.2d 868, 874 n.10 (7th cir.1981). 82 see, e.g., mammana v. federal bureau of prisons, 934 f.3d 368, 374 (3d cir. 2019) (aggregating the harm “denied bedding, and exposed to low cell temperatures and constant bright lighting for four days” to find a “denial of ‘the minimal civilized measure of life’s necessities,’ in particular, warmth and sufficient sleep”) (quoting rhodes, 452 u.s. at 347); counts v. newhart, 951 f.supp. 579, 582, 586–87 (e.d.v.a. 1996), aff’d, 116 f.3d 1473 (4th cir. 1997) (refusing to accept that overall prison condition were cruel and unusual by aggregating the harm resulting from (1) three inmates sharing and sleeping in a cell designed for two inmates, (2) the messiness resulting from overcrowding, (3) the presence of insects and vermin, arguably caused by the overcrowding, (4) inadequate staff for security, (5) inadequate allocation of recreation time, (6) an inadequate law library and, (7) the inability to properly practice one religion); tokar v. armontrout, 97 f.3d 1078, 1082 (8th cir. 1996) (rejecting an eighth amendment claim based on the aggregation broken window and a leaky roof because the plaintiff did not have a window in his cubicle and because the plaintiff was provided blankets). 83 convention relating to the status of refugees, july 28, 1951, 19 u.s.t. 6259, 189 u.n.t.s. 137. 2021] cumulative harm framework 163 nations protocol relating to status of refugees,84 and the united states refugee act of 1980,85 is obligated to provide relief to persons fleeing from persecution in the form of refugee status or asylum.86 although the term “persecution”87 is not clearly defined by statute, 88 “courts have interpreted the phrase to require a showing of something more than mere discrimination or harassment.”89 when determining whether an asylum applicant has faced persecution, many circuit courts adopt the cumulative 84 protocol relating to the status of refugees, jan. 31, 1967, 19 u.s.t. 6223, 606 u.n.t.s. 267. 85 refugee act of 1980, pub. l. no. 96-212 § 201, 94 stat. 102 (1980). 86 see e.g., marisa s. cianciarulo, refugees in our midst: applying international human rights law to the bullying of lgbtq youth in the united states, 47 colum. hum. rts. l. rev. 55, 72–78 (2015); anjum gupta, dead silent: heuristics, silent motives, and asylum, 48 colum. hum. rts. l. rev. 1, 4–15 (2016); rachel d. settlage, affirmatively denied: the detrimental effects of a reduced grant rate for affirmative asylum seekers, 27 b.u. int'l l.j. 61, 63–65 (2009) (discussing the united states’ obligations under international and domestic law to provide asylum for those who have experienced sufficient harm to rise to the level of persecution). 87 8 u.s.c. § 1101(a)(42) (defining a “refugee” as any person unable or unwilling to return to their home country “because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”). 88 see shai v. gonzales, 416 f.3d 587, 588 (stating that the court could not find “a case in which the bia [the board of immigration appeals] has defined ‘persecution’”); see generally, rempell, supra note 16, at 317–18 (“persecution is the ‘fundamental concept at the core of the refugee definition,’ yet its meaning remains largely undefined.”) (quoting in re t-z-, 24 i. & n. dec. 163, 167 (b.i.a. 2007)). 89 gupta, supra note 86, at 5–6. 164 colum. j. race & l. [vol. 11:147 harm framework, 90 including the second,91 third,92 seventh,93 ninth,94 and tenth,95 circuit courts. for example, in bejko v. gonzales, the seventh circuit held that an asylum applicant’s harms are “not [viewed] in isolation from the other allegations; it is axiomatic that the evidence of persecution must be considered as a whole, rather than piecemeal.”96 similarly, the second circuit, in edimodoualla v. gonzales, also adopted the cumulative harm framework to evaluate the applicant’s claim.97 the second circuit’s approach in this case was temporally expansive.98 the edimo-doualla court analyzed the cumulative harm from multiple incidents over the span of ten years—occurring in 1991, 1996, 1997, and 2001.99 the edimo90 see rempell, supra note 16, at 317 (“[t]he cumulative harm model recognizes as germane to a persecution assessment both the number of incidents an applicant experiences and the severity of each harm. the model’s persecution inquiry is grounded in the foundational premise that instances of harm should not be viewed in isolation.”). 91 poradisova v. gonzales, 420 f.3d 70, 80 (2d cir. 2005) (“taking isolated incidents out of context may be misleading. the cumulative effect of the applicant's experience must be taken into account.”) (citations omitted). 92 fei mei cheng v. att’y gen., 623 f.3d 175, 192 (3d cir. 2010) (“moreover, in determining whether actual or threatened mistreatment amounts to persecution, ‘[t]he cumulative effect of the applicant’s experience must be taken into account’ because ‘[t]aking isolated incidents out of context may be misleading.’”) (quoting manzur v. u.s. dep’t homeland sec.,494 f.3d 281, 290 (2d cir. 2007)). 93 chen v. holder, 604 f.3d 324, 333–35 (7th cir. 2010) (reversing a ruling of the board of immigration appeals for failing to analyze the cumulative impact of the multiple hardships faced by the asylum applicant). 94 krotova v. gonzales, 416 f.3d 1080, 1084 (9th cir. 2005) (“even when a single incident does not rise to the level of persecution, ‘the cumulative effect of several incidents may constitute persecution.’”) (quoting surita v. immigr. & naturalization serv., 95 f.3d 814, 819 (9th cir. 1996)). 95 ritonga v. holder, 633 f.3d 971, 975 (10th cir. 2011) (adopting the cumulative harm framework by stating, “[w]e do not look at each incident in isolation, but instead consider them collectively, because the cumulative effects of multiple incidents may constitute persecution”). 96 bejko v. gonzales, 468 f.3d 482, 486 (7th cir. 2006) (quoting cecai v. gonzales, 440 f.3d 897, 899 (7th cir. 2006)). 97 edimo-doualla v. gonzales, 464 f.3d 276, 283 (2d cir. 2006) (“incidents alleged to constitute persecution, however, must be considered cumulatively. . . . a series of incidents of mistreatment may together rise to the level of persecution even if each incident taken alone does not.”). 98 id. (“there was an additional fundamental error in the ij’s analysis. in assessing the question of whether edimo-doualla's mistreatment amounted to persecution, the ij considered the 1991 and 1996 incidents separately from the 1997 and 2000 incidents. incidents alleged to constitute persecution, however, must be considered cumulatively.”). 99 id. (“[f]our beatings during a 1991 arrest; a two-day arrest in 1996; multiple beatings and other forms of abuse during a three-to-five-day arrest in 2021] cumulative harm framework 165 doualla court held that the “incidents alleged to constitute persecution . . . must be considered cumulatively.”100 thus, the second circuit’s application of the cumulative harm framework allows for a “series of incidents of mistreatment [to] rise to the level of persecution even if each incident taken alone does not.” 101 iii. the judiciary’s applications of the “sequential approach” this section explores the “sequential approach.”102 this framework analyzes each occurrence of harm experienced by an individual in isolation.103 under this approach, unlike the cumulative harm framework, aggregation of harm is not permitted.104 in certain cases, this framework analyzes statutes in isolation. a. the “sequential approach” of the fourth amendment the fourth amendment protects individuals against unreasonable government searches and seizures.105 in determining whether a “search”106 has occurred, a claimant must show (1) “that a person [has] exhibited an actual (subjective) expectation of privacy,” and (2) “that the expectation [is] one that society is prepared to recognize as ‘reasonable.”’107 courts108 and 1997; a brief detention at the airport in 2000 during which he was forced to sign an arrest warrant without being allowed to read it; a break-in in which his property was seized; multiple beatings in 2000 during each of six days that edimo-doualla was held at a police station.”). 100 id. at 283. 101 id. 102 kerr, supra note 15, at 314. (defining the “sequential approach” of fourth amendment analysis as taking “snapshot of each discrete step and assess[ing] whether that discrete step at that discrete time constitutes a search”). 103 id. 104 see id. 105 u.s. const. amend. iv (“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 106 id. 107 katz v. united states, 389 u.s. 347, 361 (1967) (harlan, j., concurring). 108 see, e.g., id. at 360 (harlan, j., concurring) (“[a] person has a constitutionally protected reasonable expectation of privacy . . . .”). see also, united states v. knotts, 460 u.s. 276, 281 (1983) (“a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”). 166 colum. j. race & l. [vol. 11:147 commentators109 have called this the reasonable expectation of privacy test. the reasonable expectation of privacy test does not adopt the cumulative harm framework, but rather adopts what commentators have called the “sequential approach.”110 this analytical method isolates each government action and then independently reviews the constitutionality of each discrete act.111 terry v. ohio provides an informative example.112 in this case, a police officer stopped terry and subsequently patted the outside of his clothing to determine whether terry had a weapon.113 in applying the sequential approach, the supreme court first analyzed whether the officer’s seizing of terry violated the fourth amendment, and then analyzed whether the officer’s pat-down was unconstitutional.114 because the officer’s initial seizing of terry was lawful, the supreme court then reviewed the constitutionality of the officer’s patting down the outside of terry’s clothing.115 the supreme court did not evaluate whether terry had suffered a fourth amendment violation by aggregating harm from both the stop and the 109 kerr, supra note 15, at 316–17; see stephen p. jones, reasonable expectations of privacy: searches, seizures, and the concept of fourth amendment standing, 27 u. mem. l. rev. 907, 912–25 (1997) (describing how a court may analyze a “reasonable expectation of privacy” to evaluate fourth amendment claims). see, e.g., joseph g. cook, 1 constitutional rights of the accused 3d § 4:2 (2019); timothy t. takahashi, drones and privacy, 14 colum. sci. & tech. l. rev. 72 (2013). 110 kerr, supra note 15, at 315 (“fourth amendment analysis traditionally has followed what i call the sequential approach: to analyze whether government action constitutes a fourth amendment search or seizure, courts take a snapshot of the act and assess it in isolation.”). see, e.g, united states v. moses, 540 f.3d 263, 272 (4th cir. 2008) (examining whether the act of inserting a key into the door was unlawful before analyzing the opening of the door); united states v. jones, 565 u.s. 400, 410–12 (2012) (holding that placing a global-positioning-system device (gps) on an individual’s car “encroached on a protected area,” and thereby foregoing an analysis of whether the totality of the data produced by the gps was unlawful). 111 see moses, 540 f.3d at 272; jones, 565 u.s. at 410–12. 112 terry v. ohio, 392 u.s. 1 (1968). 113 id. at 7. 114 id. at 19 (“in this case there can be no question, then, that officer mcfadden ‘seized’ petitioner and subjected him to a ‘search’ when he took hold of him and patted down the outer surfaces of his clothing. we must decide whether at that point it was reasonable for officer mcfadden to have interfered with petitioner's personal security as he did.”). 115 id. at 23 (“the crux of this case, however, is not the propriety of officer mcfadden’s taking steps to investigate petitioner’s suspicious behavior, but rather, whether there was justification for mcfadden’s invasion of terry’s personal security by searching him for weapons in the course of that investigation.”). 2021] cumulative harm framework 167 subsequent frisk.116 thus, in applying the reasonable expectation of privacy test, a reviewing court takes a snapshot of each government action and evaluates each action isolation.117 as the first circuit noted, this “step-by-step analysis is inherent” in the fourth amendment and demonstrates the absence of aggregation within the sequential approach. 118 b. determining an “undue burden”: application of both the cumulative harm framework and the sequential approach as discussed in the part i, the government may not create an “undue burden” for a pregnant person seeking an abortion.119 a single jurisdiction typically has multiple laws which prevent a woman from receiving an abortion, such as gestational limits, state-mandated counseling, mandatory waiting periods, limitations in funding, limitations of private insurance’s coverage of abortion, which results in a general reduction of doctors and medical facilities due to increased regulations.120 yet, in analyzing the undue burden from these laws, courts use both the sequential approach and the cumulative harm framework. a recent abortion case, whole woman’s health v. hellerstedt,121 demonstrates the application of both frameworks.122 in whole woman’s health, the supreme court considered the constitutionality of two provisions of a texas law known as hb 2.123 in analyzing each statutory provision in isolation—first, the provision regarding admitting privileges, and second, the provision regarding the surgical requirements—the court applied the sequential approach.124 the court, in its application of this approach, did not address the impact of previously passed abortion restrictions, even though they were mentioned.125 116 see id. 117 kerr, supra note 15, at 315. 118 united states v. beaudoin, 362 f.3d 60, 70–71 (1st cir. 2004). 119 planned parenthood of se. pa. v. casey, 505 u.s. 833, 874 (1992). 120 see guttmacher inst., supra note 7. 121 whole woman’s health v. hellerstedt, 136 s. ct. 2292 (2016). 122 see fetrow, supra note 14, at 328 (“indeed, both the parties and the court [in whole woman’s health] considered the admitting privileges requirement and the surgical center requirement separately—not looking at whether the two challenged laws together might impose a greater burden on women than either of the two acting alone.”) (internal citations omitted). 123 whole woman’s health, 136 s. ct. at 2300. 124 see id. at 2310. (“[w]e first consider the admitting-privileges requirement.”); id. at 2314 (“the second challenged provision of texas' new law sets forth the surgical-center requirement.”). 125 id. (“prior to enactment of the new requirement, texas law required abortion facilities to meet a host of health and safety requirements. under those 168 colum. j. race & l. [vol. 11:147 yet, in limiting the parameters of their analysis, supreme court evaluated the cumulative harm caused “admitting privileges” by reviewing the cumulative harm resulting from this single provision.126 for example, the court found that admitting privileges caused the closing of about half of the abortion clinics in the state, from about forty to twenty clinics.127 these closures resulted in “fewer doctors, longer waiting times, and increased crowding,” and also meant that women now had to travel longer distances to find a provider.128 the supreme court specified that while longer distances alone were sometimes insufficient to result in a constitutional violation, these impacts “when taken together” could result in an undue burden.129 here, the supreme court permitted some aggregation of harm, but limited its overall analytical framework to the cumulative effects of a single statutory provision.130 the supreme court continued its application of the sequential approach by then analyzing the second challenged law—specifically the requirement that abortion facilities meet the standard of “ambulatory surgical centers.”131 this provision required a specific number of staff at a clinic in case of an emergency and included requirements of the physical building, specifically within the surgical suite.132 the court found that the surgical requirements would reduce the “number of abortion facilities available to seven or eight facilities.”133 as a result, “the number of abortions that the clinics would have to provide would rise from 14,000 abortions annually to 60,000 to 70,000—an increase by a factor of about five.”134 thus, although the supreme court cumulated the harm resulting from the total impacts resulting each statutory provision, the supreme court still pre-existing laws, facilities were subject to annual reporting and recordkeeping requirements . . . .”). 126 see id at 2313 (“but here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the district court’s ‘undue burden’ conclusion.”) (internal citations omitted). 127 id. at 2312. 128 id. at 2313. 129 id. 130 see id. at 2310–13. 131 id. at 2314. 132 id. 2314–15 (for example, hb 2 required “including specific corridor widths,” specific “advanced heating, ventilation, and air conditioning system[s],” and a specified “piping system and plumbing requirement”). 133 id. at 2316. 134 id. 2021] cumulative harm framework 169 declined to evaluate the cumulative impact of the abortion regulations.135 c. an explicit rejection of the cumulative harm framework as noted above, a criminal defendant enjoys the right to reasonable effective assistance of counsel.136 the supreme court, in strickland v. washington, held that a defendant is deprived of this right when (1) “that counsel’s representation fell below an objective standard of reasonableness,”137 and (2) that such deficient performance “prejudiced the defense.”138 circuit courts disagree on whether the cumulative harm framework can be applied to strickland’s second prong—whether counsel’s deficient performance prejudiced the defendant.139 the first,140 second,141 third,142 fifth,143 seventh,144 and ninth145 circuits 135 see fetrow, supra note 14, at 328 (“indeed, both the parties and the court considered the admitting privileges requirement and the surgical center requirement separately—not looking at whether the two challenged laws together might impose a greater burden on women than either of the two acting alone.”). 136 u.s. const. amend. vi (“in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.”); mcmann v. richardson, 397 u.s. 759, 771 n.14 (1970) (“it has long been recognized that the right to counsel is the right to the effective assistance of counsel.”); strickland v. washington, 446 u.s. 668, 687 (1984) (“as all the federal courts of appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance.”). 137 strickland, 446 u.s. at 687–88. 138 id. at 687. 139 see moyer, supra note 22, at 466–74. 140 dugas v. copland, 428 f.3d 317, 335 (1st cir. 2005) (“strickland clearly allows the court to consider the cumulative effects of counsel’s errors in determining whether a defendant was prejudiced.”) (quoting kubat v. thieret, 867 f.2d 351, 370 (7th cir. 1989)). 141 lindstadt v. keane, 239 f.3d 191, 203–04 (2d cir. 2001) (“taken together, ineffectiveness permeated all the evidence. . . . we assess the impact of these errors in the aggregate.”). 142 see breakiron v. horn, 642 f.3d 126 (3d cir. 2011) (“we conclude that [the defendant’s] claim[] of ineffective assistance of counsel, whether considered alone or cumulatively, require relief from his robbery conviction.”). 143 richards v. quarterman, 566 f.3d 553, 571–72 (5th cir. 2009) (basing its decision on “review of the record and consider[ation of] the cumulative effect of [counsel’s] inadequate performance”). 144 sussman v. jenkins, 636 f.3d 329, 360–61 (7th cir. 2011) (“here, however, we are not faced with a single error by counsel and, therefore, must consider the cumulative impact of this error when combined with counsel’s [other errors].”); goodman v. bertrand, 467 f.3d 1022, 1023 (7th cir. 2006) (“[t]he cumulative effect of counsel’s errors constituted ineffective assistance of counsel.”). 145 ewing v. williams, 596 f.2d 391, 395–96 (9th cir. 1979) (“and even where, as here, several specific errors are found, it is the duty of the court to make a finding as to prejudice, although this finding may either be “cumulative” or focus on one discrete blunder in itself prejudicial.”). 170 colum. j. race & l. [vol. 11:147 adopt the cumulative harm framework in determining whether a defendant was prejudiced by counsel’s deficient performance. in contrast, the eight circuit rejects the cumulative harm framework in determining whether a defendant was prejudiced by counsel’s ineffectiveness.146 pryor v. norris is an instructive case.147 pryor alleged that her trial counsel was ineffective for (1) failing to timely object to questions regarding possession of cocaine; (2) failing to request a mistrial immediately following improper testimony from a prosecution witness; (3) opening the door to the prosecutor’s prejudicial remarks during summation concerning her potential sentence; and (4) “not challenging the introduction of a transcript, rather than the original tapes,” of audio-recorded drug transactions.148 the pryor court rejected this argument, reasoning that “‘cumulative error does not call for habeas relief, as each habeas claim must stand or fall on its own.’”149 pryor did not further explain its rejection of the cumulative harm framework. however, as reasoned by the eight circuit in wainwright v. lockhart, “[e]rrors that are not unconstitutional individually cannot be added together to create a constitutional violation. neither [the] cumulative effect of trial errors nor [the] cumulative effect of attorney errors are grounds for habeas relief.”150 iv. evaluating the cumulative harm framework this section analyzes the advantages and disadvantages of the cumulative harm framework. it argues that the cumulative harm framework more appropriately analyzes harms from the perspective of the right-holder. this perspective is necessary because “[t]he constitution protects individuals,” and rights should be viewed through the lens of the right-holder.151 this section then argues that the judiciary has the capacity to more broadly adopt the framework because of its similarity between a “totality of the circumstances” analysis.152 finally, and most 146 hall v. luebbers, 296 f.3d 685, 692 (8th cir. 2002) (“[p]etitioner cannot build a showing of prejudice on a series of errors, none of which would by itself meet the prejudice test.”). 147 pryor v. norris, 103 f.3d 710 (8th cir. 1997). 148 id. at 711–12. 149 id. at 714 n.6 (citations omitted) (quoting girtman v. lockhart, 942 f.2d 468, 475 (8th cir. 1991)). 150 wainwright v. lockhart, 80 f.3d 1226, 1233 (8th cir. 1996). 151 planned parenthood of se. pa. v. casey, 505 u.s. 833, 896 (1992). 152 see, e.g., united states v. arvizu, 534 u.s. 266, 273 (2002) (“when discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of 2021] cumulative harm framework 171 importantly, this section argues that the cumulative harm framework is a necessary tool to combat second-generation forms of discrimination. this section also critiques the cumulative harm framework. it argues that the framework is difficult to administer because there is no clear limit on which facts should be cumulated. it also argues that the framework permits unrestrained judicial review. further, the cumulative harm framework would present issues in facial challenges of law and in evaluating prospective harm. this section concludes by arguing for a greater adoption of the cumulative harm framework. a. advantages of the cumulative harm framework 1. the cumulative harm framework evaluates the harm from the perspective of the right-holder the cumulative harm framework more appropriately reflects one’s lived experience as compared to the “sequential approach.”153 take, for example, a pregnant person’s right to abort a fetus.154 a pregnant person does not experience each regulation limiting access to an abortion, such as gestational limits, state-mandated counseling, mandatory waiting periods, limitations in funding, and general reduction of doctors and medical facilities due to increased regulations, in isolation.155 rather, in attempt to receive this medical treatment, that person experiences every regulation before they can receive an abortion.156 a law review article provides an instructive hypothetical of one’s experience: imagine you are a woman living in lubbock, texas (the eleventh most populous city in texas with around a quarter-of-a-million people)[,] and you want to have an abortion. as a result of texas’ the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing. . . . this process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’”) (emphasis added) (citations omitted) (quoting united states v. cortez, 449 u.s. 411, 417– 18 (1981)). 153 see fetrow, supra note 14, at 332–33. 154 roe v. wade, 410 u.s. 113, 152–53 (1973). 155 guttmacher inst., supra note 7. 156 see fetrow, supra note 14, at 332–33. see also, marlow svatek, seeing the forest for the trees: why courts should consider cumulative effects in the undue burden analysis, 41 n.y.u. rev. l. & soc. change 121, 133–34 (2017). 172 colum. j. race & l. [vol. 11:147 trap [targeted regulation of abortion providers] laws, including the admittingprivileges requirement and ambulatory-surgicalcenter requirement . . . there were only ten abortion providers in texas as of june 2015, a state that spans over 260,000 square miles. the only cities that had clinics were austin, san antonio, dallas, fort worth, houston, and mcallen, which were all on the other side of the state. therefore, you would have had to drive fourand-a-half hours to get to the nearest clinic in fort worth. once you got to fort worth, you would have had to undergo state-directed counseling and then waited another twenty-four hours before you could actually have the abortion procedure. this means that you would have to either spend at least one night in fort worth or make the 600mile round trip twice.157 as demonstrated above, a woman cannot experience specific regulations on abortion in isolation—she experiences the entirety of the regulatory regime.158 the entirety of a pregnant person’s experience, however, is not the perspective adopted by the supreme court in evaluating this right.159 rather, as noted above, the supreme court adopts the sequential approach by evaluating “regulation[s] in isolation and [by asking] whether the specific law imposed health risks on women, not whether women actually experienced an undue burden.”160 thus, the regulations that have limited abortions clinics to eight cities in the state of texas, the mandatory waiting period, and other regulations, cannot be 157 svatek, supra note 156, at 133–34 (internal citations omitted). as of 2019, there are also abortion providers in el paso and waco. texas abortion clinic map, fund tex. choice, https://fundtexaschoice.org/index.php/ftc-needhelp/texas-abortion-clinic-map (oct. 2019). 158 see id. (“[f]rom a practical perspective, women who are seeking abortions do not experience individual restrictions in isolation. rather, they experience the collective pressure of various limitations on their reproductive freedom and autonomy.”). 159 see gonzales v. carhart, 550 u.s. 124, 161 (2007). see also planned parenthood of se. pa. v. casey, 505 u.s. 833, 879–80 (1992) (o’connor, kennedy, & souter, jj.) (plurality opinion) (medical emergency provision); id. at 881–87 (o’connor, kennedy, & souter, jj.) (plurality opinion) (informed consent); id. at 887–98 (o’connor, kennedy, & souter, jj.) (majority opinion) (spousal notice requirement); id. at 899–900 (o’connor, kennedy, & souter, jj.) (plurality opinion) (parental consent); id. at 900–01 (o’connor, kennedy, & souter, jj.) (plurality opinion) (recordkeeping and reporting requirements). 160 fetrow, supra note 14, at 326. 2021] cumulative harm framework 173 challenged together.161 in contrast, the cumulative harm framework, by evaluating harms from the perspective of the right-holder, analyzes the total burden faced by a woman seeking an abortion.162 only through the aggregation of harm can a reviewing court realize the true lived experience of plaintiffs. 2. courts have the institutional capacity for a broader adoption of the cumulative harm framework reviewing courts are well-equipped to more broadly apply the cumulative harm framework. the “totality of the circumstances” analytical framework, mirrors the logic of the cumulative harm framework.163 this framework evaluates the “cumulative information available.”164 as noted by the supreme court, “[t]he ‘totality of the circumstances’ requires courts to consider ‘the whole picture.’ . . . [p]recedents recognize that the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation.”165 courts apply the totality of the circumstances analytical framework in a variety of substantive areas, such as determining whether law enforcement has sufficient “reasonable-suspicion” to detain an individual,166 whether a police officer has used excessive force,167 whether the voting rights act has been 161 fund tex. choice, supra note 157. 162 fetrow, supra note 14, at 332–33; svatek, supra note 156, at 133– 34. 163 see, e.g., united states v. arvizu, 534 u.s. 266, 273 (2002) (“when discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing. . . this process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.”) (emphasis added) (citations omitted) (quoting united states v. cortez, 449 u.s. 411, 417– 18 (1981)). 164 id. 165 district of columbia v. wesby, 138 s. ct. 577, 588 (2018) (quoting cortez, 449 u.s. at 417). 166 id.; see thomas k. clancy, the fourth amendment’s concept of reasonableness, 2004 utah l. rev. 977 (“[i]n defining the contours of the right to be free from unreasonable searches and seizures, the specific content and incidents of this right must be shaped by the context in which it is asserted. accordingly, the court has often said that it must examine the totality of the circumstances of the case—which is no more precise than the total atmosphere of the case—to assess the reasonableness of a search or a seizure.”) (citations omitted). 167 see, e.g., cara mcclellan, dismantling the trap: untangling the chain of events in excessive force claims, 8 colum. j. race & l. 1 (2017) (describing the “totality of the circumstances” as the framework for determining 174 colum. j. race & l. [vol. 11:147 violated,168 whether an employee has waived their right to bring a claim under the civil rights act of 1964,169 and whether a police officer has “probable cause” to perform an arrest.170 in effect, by analyzing the “totality of the circumstances,” a reviewing court adopts a flavor of the cumulative harm framework by assessing the entirety of an individual’s harm and recognizing that the “whole is often greater than the sum of its parts—especially when the parts are viewed in isolation.”171 what differentiates the totality of the circumstances analysis from the cumulative harm framework is that some applications of the totality of the circumstances analysis have constrained judicial discretion by requiring guiding considerations.172 for example, in determining whether a police officer had used excessive force, a reviewing court must analyze the totality of the circumstances from the perspective of an officer “at the moment force was used.”173 further, this application of the totality of the circumstances analysis requires a reviewing court to give “allowance [to the] fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”174 within this whether police officers have used excessive force); michael avery, unreasonable seizures of unreasonable people: defining the totality of circumstances relevant to assessing the police use of force against emotionally disturbed people, 34 colum. hum. rts. l. rev. 261, 267–70. 168 see, e.g., thornburg v. gingles, 478 u.s. 30 (1986) (requiring a reviewing court to consider the “totality of the circumstances” whether plaints have experienced “unequal access to the electoral process through § 2 of the voting rights act of 1965, pub. l. no. 89-110). 169 daniel p. o’gorman, a state of disarray: the “knowing and voluntary” standard for releasing claims under title vii of the civil rights act of 1964, 8 u. pa. j. lab. & emp. l. 73, 75 (2005) (describing how a majority of circuit courts apply the “totality of the circumstances” in determining whether an employee has waived their right to a title vii of the civil rights act of 1964 claim). 170 wesby, 138 s.ct. at 586 (“to determine whether an officer had probable cause for an arrest, we examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. . . . depends on the totality of the circumstances.”) (citations omitted). 171 see id. at 588 (“the ‘totality of the circumstances’ requires courts to consider ‘the whole picture.’”) (quoting united states v. cortez, 449 u.s. 411, 417 (1981)). 172 see mcclellan, supra note 167, at 7–9 (describing the guiding considerations that must be used in a totality of the circumstances analysis of whether a police officer used excessive force). 173 id. at 8. 174 graham v. connor, 490 u.s. 386, 397 (1989). see also mcclellan, supra note 167, at 7–9. 2021] cumulative harm framework 175 analysis, circuit courts disagree on whether a police officer’s preceding events may be included with this “totality of the circumstances” analysis, or whether this analysis is limited to the totality of the circumstances “at the moment” of an officer’s use of lethal force.175 the cumulative harm framework and the totality of the circumstances analytical framework have many similarities. both frameworks require courts to “hear evidence of multiple acts because many instances of constitutional harm occur in this manner—the harm comes in the form of ‘death by a thousand cuts’ rather than a single blow.”176 both frameworks recognized that the “whole is often greater than the sum of its parts— especially when the parts are viewed in isolation.”177 although there are minor differences in the two analytical frameworks, courts are well-equipped to aggregate the harm an individual faces.178 courts are also well-prepared to aggregate harm and even apply conditional requirements, or give preference to specific considerations to guide judicial discretion.179 3. the cumulative harm framework more effectively addresses second-generation harms than the sequential approach first-generation discrimination, such as explicit denial of one’s right to vote on account of gender or race,180 the denial of 175 see ryan hartzell c. balisacan, incorporating police provocation into the fourth amendment “reasonableness” calculus: a proposed post-mendez agenda, 54 harv. c.r.-c.l. l. rev. 327, 330–31 (2019) (finding that the first, third, seventh, tenth, and eleventh circuit all analyze the entirety of law enforcement actions during an encounter—including antecedent, provocative acts of the police—within a “totality of the circumstances” evaluation, while the second, fourth, fifth, sixth, and eighth circuits only examine the “totality of the circumstances” at the moment of the officer’s use of force). 176 abrams & garrett, supra note 16, at 1314. 177 district of columbia v. wesby, 138 s. ct. 577, 588 (2018). 178 see id.; mcclellan, supra note 167, at 7–9. 179 graham, 490 u.s. at 396; see mcclellan, supra note 167, at 7–9. 180 see u.s. const. amend. xix (“the right of citizens of the united states to vote shall not be denied or abridged by the united states or by any state on account of sex.”); harper v. w. va. state bd. of elections, 383 u.s. 663, 670 (“[w]here fundamental rights and liberties are asserted under the equal protection clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. . . . for to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.”) (citations omitted). see generally, christopher watts, note, road to the poll: how the wisconsin voter id law of 2011 is disenfranchising its poor, minority, and elderly citizens, 3 colum. j. race & l. 119, 126–27 (2013) (describing the end of explicit racial discrimination in exercising the right to vote as a result of twenty-fourth amendment, the civil rights act of 1964, and the voting rights act of 1965). 176 colum. j. race & l. [vol. 11:147 employment on the account of gender,181 or explicit denial of rights on the account of gender identity,182 although largely addressed, has not disappeared.183 for example, members of the united states women’s national soccer team, who had recently won the 2019 fifa world cup,184 recently filed a gender discrimination lawsuit alleging that a top-tier, twenty-game winning women’s national team player “would earn only 38% of the compensation of a similarly situated” men’s national team player.185 181 see, e.g., dothard v. rawlison, 433 u.s. 321 (1971) (invalidating a law that placed height and weight requirements for correctional counselors disproportionately excluded women). 182 see sandhya somashekhar et al., trump administration rolls back protections for transgender students, wash. post (feb. 22, 2017), https://www.washingtonpost.com/local/education/trump-administration-rollsback-protections-for-transgender-students/2017/02/22/550a83b4-f913-11e6bf01-d47f8cf9b643_story.html [https://perma.cc/26md-tdmm] (revoking “federal guidelines specifying that transgender students have the right to use public school restrooms that match their gender identity”). 183 see, e.g., civil minutes, morgan v. u.s. soccer fed’n (c.d. cal. 2019) (no. 2:19-cv-01717-rgk-agr), 2019 wl 5867441 (finding an injury-in-fact that the women’s national soccer team was compensated less on a per-game basis than the men’s national soccer team, despite the fact that the women’s team “performance has been superior to that of the” men’s team); floyd v. city of new york, 959 f.supp.2d 540 (s.d.n.y. 2013) (invalidating the new york city police department’s stop and frisk policy because it unconstitutionally racially profiled african-americans and latinos). see generally susan sturm, second generation employment discrimination: a structural approach, 101 colum. l. rev. 458, 468 (2001) (“first generation discrimination has not disappeared, and indeed has played a significant role in recent litigation against companies such as texaco and mitsubishi.”). 184 andrew keh, u.s. wins world cup and becomes a champion for its time, n.y. times (july 9, 2019), https://www.nytimes.com/2019/07/07/sports/soccer/world-cup-final-uswnt.html. 185 complaint ¶ 58, morgan v. united states soccer federation (c.d. cal. 2019) (no. 2:19-cv-01717), 2019 wl 1199270. see, e.g., andrew das, u.s. women’s soccer team sues u.s. soccer for gender discrimination, n.y. times (mar. 8, 2019), https://www.nytimes.com/2019/03/08/sports/womens-soccerteam-lawsuit-gender-discrimination.html [https://perma.cc/9mdh-ruxp]. 2021] cumulative harm framework 177 second-generation discrimination,186 however, is just as pervasive.187 this type of discrimination is not explicit; it is much more subtle. it is frequently the product of facially neutral laws that disparately impacts disadvantaged groups.188 for instance, second-generation harms, in the context of voting, are “[e]fforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot.”189 second-generation harms are “often more sophisticated than the facially discriminatory mechanisms that preceded them.”190 subtle forms of discrimination include requiring an identification (id) card at the polls, which often impact minority voters more harshly than 186 although first-generation discrimination must be addressed, it is not the focus of this note. second-generation discrimination is subtler and is frequently the product of a facially neutral law that disparately impacts minorities. see sturm, supra note 183, at 468–69 (“second generation claims frequently involve patterns of interaction among groups within the workplace that, over time, exclude nondominant groups. this exclusion is difficult to trace directly to intentional, discrete actions of particular actors. for example, a nowcommon type of harassment claim targets interactions among co-workers who have the power to exclude or marginalize their colleagues, but who may lack the formal power to hire, discipline, or reassign. this form of harassment may consist of undermining women’s perceived competence, freezing them out of crucial social interactions, or sanctioning behavior that departs from stereotypes about gender or sexual orientation. it is particularly intractable, because the participants in the conduct may perceive the same conduct quite differently. moreover, behavior that appears gender neutral, when considered in isolation, may actually produce gender bias when connected to broader exclusionary patterns.”) 187 see sturm, supra note 183 (describing second-generation discrimination in employment). see, e.g., shelby cnty., ala. v. holder, 570 u.s. 529, 566 (2013) (ginsburg, j., dissenting) (describing congressional findings that “second generation barriers constructed to prevent minority voters from fully participating in the electoral process continued to exist”) (citations omitted); angelia dickens, revisiting brown v. board of education: how tracking has resegregated america’s public schools, 29 colum. j.l. & soc. probs. 469, 470, 479–82 (1996) (arguing that a race neutral policy of tracking students into specific curriculums based on their academic achievement resulted in racial discrimination); joseph o. oluwole & preston c. green iii, riding the plessy train: reviving brown for a new civil rights era for microdesegregation, 36 chicana/o-latina/o l. rev. 1, 10–12 (2019) (providing empirical data on how black people, latinxs, and native americans were placed in low-track english and math courses at higher rates than their white peers). 188 see sturm, supra note 183, at 468–69 (describing second-generation discrimination as subtle and part of patterns of interactions that exclude nondominant groups). 189 shelby cnty., 570 u.s. at 563. 190 jenigh j. garrett, the continued need for the voting rights act: examining second-generation discrimination, 30 st. louis u. pub. l. rev. 77, 80 (2010). 178 colum. j. race & l. [vol. 11:147 white voters.191 specifically, six states have “strict”192 requirements for voters to present a photo id, twelve states have “non-strict”193 photo id requirements, three states have “strict” non-photo id requirements, and fourteen states have “nonstrict,” non-photo id requirements.194 the remaining fifteen states, and the district of columbia, do not require a form of identification to vote.195 other second-generation discrimination includes the total loss of 1,200 polling places in the southern united states since 2013, 196 which has resulted in thousands of voters waiting for six hours to vote;197 the purging of 16,000,000 voters from voting rosters between 2014 and 2016;198 the insufficient training of poll workers, resulting in the turning away of eligible voters;199 the loss of the ability to take time off work to go vote without loss 191 see voter identification requirement: voter id laws, nat’l conf. state legislatures, https://www.ncsl.org/research/elections-andcampaigns/voter-id [https://perma.cc/wx2s-hvzx] (aug. 25, 2020). 192 id. (defining “strict” laws as “[v]oters without acceptable identification must vote on a provisional ballot and also take additional steps after election day for it to be counted”) 193 id. (defining “non-strict” laws as “[a]t least some voters without acceptable identification have an option to cast a ballot that will be counted without further action on the part of the voter. for instance, a voter may sign an affidavit of identity, or poll workers may be permitted to vouch for the voter. in some of the ‘non-strict’ states . . . voters who do not show required identification may vote on a provisional ballot”). 194 id. 195 id; see also, shayanne gal & ellen cranley, most states, including texas and florida, now require showing id to vote. here’s the full state-bystate breakdown, bus. insider (nov. 6, 2018), https://www.businessinsider.com/voter-id-requirements-in-every-statemidterm-elections-2018-11 [https://perma.cc/un7q-zjc7]. 196 andy sullivan, southern u.s. states have closed 1,200 polling places in recent years: rights group, reuters (sept. 10, 2019), https://www.reuters.com/article/us-usa-election-locations/southern-us-stateshave-closed-1200-polling-places-in-recent-years-rights-group-iduskcn1vv09j [perma.cc/f57k-vw83]. 197 todd j. gillman et al., ‘no one should wait six hours to vote,’ but in texas, thousands did on super tuesday, dall. morning news (mar. 4, 2020), https://www.dallasnews.com/news/politics/2020/03/05/no-one-shouldwait-six-hours-to-vote-but-in-texas-thousands-did-on-super-tuesday [https://perma.cc/x5ry-gwkl]. 198 li zhou, voter purges are on the rise in states with a history of racial discrimination, vox (jul. 20, 2018), https://www.vox.com/2018/7/20/17595024/voter-purge-report-supreme-courtvoting-rights-act [perma.cc/8x4k-t7l3]. 199 see vann r. newkirk ii, voter suppression is warping democracy, atlantic (july 17, 2018), https://www.theatlantic.com/politics/archive/2018/07/poll-prrivoter-suppression/565355 [https://perma.cc/jz65-mq9a]. 2021] cumulative harm framework 179 of pay;200 and requiring voters to vote on different days for state and federal primaries.201 these requirements result in more difficulties in registering to vote, or staying registered, as well as other barriers to early voting or absentee voting.202 none of these laws explicitly prohibit an individual from exercising their right to vote. the laws, in theory, present an equal barrier to everybody. however, that is far from the truth— these “second generation, indirect structural barrier[s]” to vote have factually resulted in disparate impact for black and latinx individuals as well as other people of color.203 one study found that “[r]elative to entirely-white neighborhoods, residents of entirely-[b]lack neighborhoods waited 29% longer to vote and were 74% more likely to spend more than 30 minutes at their polling place.”204 another study found that individuals in neighborhoods that consisted of a 75% latinx population waited, on average, 46% longer than individuals voting in neighbors that consisted of a 75% white population.205 minorities communities in the 2020 democratic primary also experienced longer waiting times than their white peers.206 other commentators have discussed how the closing of polling places has occurred in jurisdictions with the largest black 200 rachel gillett & grace panetta, in new york, california, texas, and 27 other states you can take time off from work to vote—here’s the full list, bus. insider (nov. 6, 2018), https://www.businessinsider.com/can-i-leave-workearly-to-vote-2016-11 [https://perma.cc/3cmm-gfvc]. 201 vivian wang, why deep blue new york is ‘voter suppression land’, n.y. times (dec. 19, 2018), https://www.nytimes.com/2018/12/19/nyregion/early-votingreform-laws-ny.html [https://perma.cc/76vw-k64q]. 202 see new voting restrictions in america, brennan ctr. for just. (nov. 18, 2019), https://www.brennancenter.org/sites/default/files/201911/new%20voting%20restrictions.pdf [https://perma.cc/3fz9-j9pk]. 203 lani guinier, the triumph of tokenism: the voting rights act and the theory of black electoral success, 89 mich. l. rev. 1077, 1093 (1991). 204 m. keith chen et al., racial disparities in voting wait times: evidence from smartphone data 2 (nat’l bureau econ. rsch., working paper no. 2648, 2019) https://www.nber.org/papers/w26487.pdf [https://perma.cc/mze4-en8r]. 205 christopher famighetti, brennan ctr. for just., long voting lines: explained, 5 (nov. 4, 2016), https://www.brennancenter.org/sites/default/files/analysis/long_voting_lines_ explained.pdf [https://perma.cc/mj2n-h46y]. 206 see nicole narea, black and latino voters were hit hardest by long lines in the texas democratic primary, vox (mar. 3, 2020), https://www.vox.com/2020/3/3/21164014/long-lines-wait-texas-primarydemocratic-harris [https://perma.cc/8wcm-flmb]. 180 colum. j. race & l. [vol. 11:147 and latinx population growth.207 even the frequency of changing polling locations,208 the inability to get paid leave for going to vote,209 and conforming to new voter id laws210 all disparately impact racial minorities.211 finally, the government accountability office has found that requiring voters to demonstrate an id disproportionately impacts racial minorities.212 taken in isolation, each restriction to vote may seem reasonable and may serve a legitimate government interest in its application, such as “detecting voter fraud,” or “safeguarding voter confidence” in elections.213 however, as found by congress214 and as discussed in judicial opinions,215 these 207 richard salame, texas closes hundreds of polling sites, making it harder for minorities to vote, guardian (mar. 2, 2020), https://www.theguardian.com/us-news/2020/mar/02/texas-polling-sitesclosures-voting [https://perma.cc/78rn-bzbl](“the analysis finds that the 50 counties that gained the most black and latinx residents between 2012 and 2018 closed 542 polling sites, compared to just 34 closures in the 50 counties that have gained the fewest black and latinx residents.”). 208 zachary roth, study: north carolina polling site changes hurt blacks, nbc news (nov. 23, 2015), https://www.nbcnews.com/news/nbcblk/study-north-carolina-polling-sitechanges-hurt-blacks-n468251 [https://perma.cc/8572-xrse](“in total, black voters will now have to travel almost 350,000 extra miles to get to their nearest early voting site, compared to 21,000 extra miles for white voters.”). 209 newkirk, supra note 199. 210 sari horwitz, getting a photo id so you can vote is easy. unless you’re poor, black, latino or elderly, wash. post (may 23, 2016), https://www.washingtonpost.com/politics/courts_law/getting-a-photo-id-so-youcan-vote-is-easy-unless-youre-poor-black-latino-or-elderly/2016/05/23 [https://perma.cc/fu92-f4zy]. 211 see crawford v. marion cnty. election bd., 472 f.3d 949, 954 (7th cir. 2007) (evans, j., dissenting) (“let’s not beat around the bush . . . voter photo id law[s] [are] a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew democratic.”), aff’d, 553 u.s. 181 (2008). 212 rebecca gambler & nancy r. kingsbury, u.s. gov’t accountability off., gao-14-634, elections: issues related to state voter identifications laws (2014) (“in both kansas and tennessee[,] we found that turnout was reduced by larger amounts among african-american registrants, as compared with asian-american, hispanic, and white registrants.”). 213 crawford v. marion cnty. election bd., 553 u.s. 181, 191 (2008) (upholding a law requiring voters to present an id card prior to voting). 214 shelby cnty., ala. v. holder, 570 u.s. 529, 592 (2013) (ginsburg, j., dissenting) (“as the record for the 2006 reauthorization [of the voting rights act] makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions.”). 215 see crawford v. marion cnty. election bd., 472 f.3d 949, 954 (7th cir. 2007) (evans, j., dissenting) (2008) (“let’s not beat around the bush. . . voter 2021] cumulative harm framework 181 restrictions are a continuation of first-generation discrimination—explicit deprivations of a right. at an abstract level, these second-generation barriers and forms of discrimination result in continually incremental encroachment upon rights. in the context of reproductive rights, barriers to obtain an abortion work together to ultimately deprive a person’s of their right to choose.216 an article by kate fetrow provides an illuminating hypothetical explaining the dangers of incremental regulation: in year 0, a state has a regulatory regime under which abortion is regulated no differently than other medical procedures. under that regime, women in the state face no undue burden. then in year 1, the state imposes a new, relatively minor restriction on abortion. women in the state now face a slight barrier—say a 10% increase in the barriers they face. in year 2, the state passes another, equally minor restriction—but now women face a barrier 20% greater than they did in year 0. in years 3, 4, and 5, the state continues to pass small, incremental regulations. finally, when the burden increases to 50% relative to year 0, a clinic or woman objects to the year 5 regulation, claiming that it imposes an undue burden. under the undue burden standard as it is currently articulated, the court would ask whether the year 5 law imposes a burden compared to the previous status quo, comparing the regulation of year 5 to the status quo of year 4—not to the neutral state of affairs in year 0. because the regulation is incremental, that there photo id law[s] [are] a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew democratic.”), aff’d, 553 u.s. 181; crawford, 553 u.s. at 221 n.25 (souter, j., dissenting) (“studies in other states suggest that the burdens of an id requirement may also fall disproportionately upon racial minorities.”); shelby cnty., 570 u.s. at 592 (ginsburg, j., dissenting) (“as the record for the 2006 reauthorization [of the voting rights act] makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the firstgeneration barriers that originally triggered preclearance in those jurisdictions.”). 216 see reva b. siegel, dignity and the politics of protection: abortion restrictions under casey/carhart, 117 yale l.j. 1694, 1706 (2008) (describing how the sequential approach in evaluating reproductive rights “uphold[s] incrementalist regulation enacted for fetal-protective purposes and subsequently defended on woman-protective grounds.”). 182 colum. j. race & l. [vol. 11:147 is some additional burden imposed by the year 5 regulation is not sufficient to declare the regulation unconstitutional. and even were the plaintiff to challenge the year 4 regulation, too, it would be analyzed independently of the other restrictions. the court never compares any provision to the neutral year 0; nor does it consider whether the combination of small restrictions in years 1 through 5 might, in total, impose enough of a burden that the burden becomes undue even though each restriction, individually, does not. as a result, the state can continue to pass piecemeal restrictions on abortions, creating downward incremental pressure on abortion access, because none of the restrictions, standing alone, imposes an undue burden.217 of course, it is difficult to quantify the exact harm a person may face when seeking an abortion. regardless of this lack of precision, this hypothetical demonstrates the inability of the sequential approach to address second-generation discrimination.218 there are, of course, many policy proposals219 and legal theories220 that may increase access to voting using tools outside of the courts that are beyond the scope of this note. at the judicial level, courts should adopt the cumulative harm framework in 217 fetrow, supra note 14, at 330. 218 see also siegel, supra note 216, at 1706. 219 see brennan ctr. for just., an election agenda for candidates, activists, and legislators, 6–13 (2018), https://www.brennancenter.org/sites/default/files/201908/report_democracy%20agenda%202018.pdf [https://perma.cc/9q4j-vsv8]; german lopez, 9 ways to make voting better, vox (nov. 7, 2016, 8:30 am), https://www.vox.com/policy-and-politics/2016/11/7/13533990/votingimprovements-election-2016. see, e.g., danielle root & liz kennedy, increasing vote participation in america: policies to drive participation and make voting more convenient, ctr. for am. progress (july 11, 2018), https://www.americanprogress.org/issues/democracy/reports/2018/07/11/453319 /increasing-voter-participation-america [https://perma.cc/p4bg-6ajz]. 220 see shane grannum, a path forward for our representative democracy: state independent preclearance commissions and the future of the voting rights act after shelby county v. holder, 10 geo. j.l. & mod. critical race persp. 95, 128–39 (2018); see, e.g., andres a. gonzalez, creating a more perfect union: how congress can rebuild the voting rights act, 27 berkeley la raza l.j. 65, 86–91 (2017); edward k. olds, more than “rarely used”: a post-shelby judicial standard for section 3 preclearance, 117 colum. l. rev. 2185 (2017). 2021] cumulative harm framework 183 addressing these harms. due to its ability to examine the totality of the circumstances and aggregate harm from multiple sources, the cumulative harm framework is a more useful analytical tool to address second-generation harms than the sequential approach.221 the sequential approach, of course, has been an effective analytical framework to promulgate bright-line rules that combat explicit racism.222 but, newer, subtler forms of second-generation discriminations “constitute barriers to racial justice that are in many ways more difficult to overcome.”223 the sequential approach would analyze the constitutionality of each law that results in the closing polling places, longer waiting times, new voter id requirements, and the insufficient training of polling workers that turns eligible voters away from voting, in isolation. the cumulative harm framework, in contrast, asks whether “multiple election [laws] work together to fence out minority voters and effectively eliminate opportunities to cast a ballot.”224 this analytical framework realizes that life is complex and the “panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting” the right to vote.225 by aggregating harm, this analytical framework assesses the totality of harm, as opposed to allowing continuous incremental burdens placed upon the right to vote.226 b. disadvantages of the cumulative harm framework this section evaluates the disadvantages of the cumulative harm framework. the section discusses how this 221 see julissa reynoso, perspectives on intersections of race, ethnicity, gender, and other grounds: latinas at the margins, 7 harv. latino l. rev. 63, 72 (2004) (describing how “rigid legal prescriptions” of “anti-discriminatory laws” have been effective in fighting first-generation harms, “they have not been as effective in combating more subtle and contemporary forms of discrimination—what is often referred to as ‘second-generation discrimination’—including discrimination arising from intersectional oppression); sturm, supra note 183, at 469. 222 see reynoso, supra note 221, at 72. 223 pedro a. noguera, educational rights and latinos: tracking as a form of second generation discrimination, 8 la raza l.j. 25, 25 (1995). 224 hayden johnson, vote denial and defense: a strategic enforcement proposal for section 2 of the voting rights act, 108 geo. l.j. 449, 472 (2019). 225 clingman v. beaver, 544 u.s. 581, 607–08 (2005) (o’connor, j., concurring). 226 see siegel, supra note 216, at 1706 (arguing the sequential approach permits increased “incrementalist regulation” in the context of abortion rights). the same logic, however, can be applied to the voting context. if minor impediments to the right to vote are continually upheld, incrementally harmful impediments to vote will continue. 184 colum. j. race & l. [vol. 11:147 analytical framework is difficult to administer because the framework does not have clear boundaries in its application. it also discusses how the framework grants judges substantial discretion and the implications of increased judicial discretion. further, it describes the difficulty in adopting the framework in facial challenges of law and in cases of prospective harm. 1. difficulty in administration: where to draw the cumulative line? the cumulative harm framework would be difficult to administer.227 one immediate question is temporal: how far back in time may a reviewing court be permitted in considering an individual’s cumulative harm? in some cases, this question is answered by the inherent scope of the constitutional violation. in determining whether one’s right to a fair trial was violated, for example, the analysis is limited to the scope of the trial. similarly, in determining prosecutorial misconduct claims under brady, the inquiry naturally is limited to the scope of the government investigation. other constitutional challenges do not have this natural time-frame. asylum law is particularly instructive. as noted above, a reviewing court is required to assess the cumulative harm of the asylum seeker.228 but, how expansive is a review court’s analysis? in one asylum case, the second circuit reviewed harms over the span of twelve years.229 another case, also from the second circuit, evaluated four discrete harms during a nineyear period.230 there is no clear answer to whether a reviewing court should, or should not, have an expansive review. however, if courts do create a bright-line rule regarding the temporal scope of this analysis, such rigidity could negatively impact claimants. 227 see kerr, supra note 15, at 333. 228 see, e.g., fei mei cheng v. att’y gen., 623 f.3d 175, 192 (3d cir. 2010) (“moreover, in determining whether actual or threatened mistreatment amounts to persecution, ‘[t]he cumulative effect of the applicant’s experience must be taken into account’ because ‘[t]aking isolated incidents out of context may be misleading.’”) (quoting manzur v. u.s. dep’t homeland sec., 494 f.3d 281, 290 (2d cir.2007)). 229 manzur, 494 f.3d a 290–91 (2d cir. 2007) (“the petitioners’ claim of past persecution in this case is primarily predicated on the alleged pattern of harms to which the petitioners were subjected over approximately a twelve-year period in bangladesh.”). 230 edimo-doualla v. gonzales, 464 f.3d 276, 283 (2d cir. 2006) (“there was an additional fundamental error in the ij’s analysis. in assessing the question of whether edimo-doualla’s mistreatment amounted to persecution, the ij considered the 1991 and 1996 incidents separately from the 1997 and 2000 incidents. incidents alleged to constitute persecution, however, must be considered cumulatively.”). 2021] cumulative harm framework 185 for example, if such a strict timeframe exists, such as five years, it would be unjust to ignore relevant harm a claimant has experienced two days before this five-year cut off. the only solution to this hypothetical is to allow judges to decide these questions on a case-by-case basis.231 another pressing question is how much cumulative harm is sufficient to justify a constitutional violation? jones v. united states232 illustrates the difficulties of this question. in this case, the government placed a battery-powered gps device on jones’s car for twenty-eight days233. the device tracked the location of jones’s car every seven seconds, resulting in over 2,000 pages of data throughout the four weeks of surveillance.234 the government obtained a warrant to install the gps within ten days of the warrant’s issuance, but the government installed the gps on the eleventh day.235 regardless, the d.c. circuit adopted the cumulative harm framework, reasoning that the data resulting from the gps constituted a search under the fourth amendment because the totality of the search revealed “an intimate picture of the subject’s life that he expects no one to have—short perhaps of his spouse.”236 because the supreme court’s majority held that “attaching the device to [jones’s] jeep” unlawfully encroached on a protected area, the majority did not reach the question of whether the cumulative harm from the entire data collection constitutes an unlawful search. 237 the concurring opinions, however, followed the approach of the d.c. circuit by alluding to the cumulative harm framework.238 231 see abraham d. sofaer, judicial control of informal discretionary adjudication and enforcement, 72 colum. l. rev. 1293, 1296 (1972) (explaining how judicial discretion “allows for the operation of expertise and human sensitivity where standards or stringent review might stifle such expression.”). 232 united states v. jones, 565 u.s. 400 (2012). 233 id. at 403. 234 id.; kerr, supra note 15, at 323. 235 jones, 565 u.s. at 403. 236 united states v. maynard, 615 f.3d 544, 563 (d.c. cir. 2010), aff’d in part sub nom. united states v. jones, 565 u.s. 400 (2012). 237 jones, 565 u.s. at 410–12 (2012). 238 see jones, 565 u.s. at 430 (alito, j., concurring) (“[the] relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. . . . but the use of longer term gps monitoring in investigations of most offenses impinges on expectations of privacy.”); see id. at 416 (sotomayor, j., concurring) (“i would take these attributes of gps monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one's public movements.”) (emphasis added). 186 colum. j. race & l. [vol. 11:147 justice alito’s concurrence adopted a version of the cumulative harm framework.239 in contrast to the majority, justice alito frames the question by “asking whether respondent's reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”240 justice alito reasoned that for most offenses “society’s expectation has been that law enforcement . . . would not . . . secretly monitor and catalogue every single movement of an individual’s car for a very long period.”241 on the one hand, the aggregate surveillance presents the constitutional violation and outweighs the government interest in investigating typical crimes.242 on the other hand, prolonged investigation resulting in an accumulation of information may be justified “in the context of investigations involving extraordinary offenses.”243 embedded in this analysis is the question of how much surveillance is sufficient to violate the fourth amendment. justice alito declined to answer this question: “[w]e need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4–week mark. other cases may present more difficult questions.”244 in context, however, should courts be drawing the constitutional line at three days, three weeks, or some other threshold?245 even if, arguendo, the supreme court creates a bright-line rule that a week of gps surveillance violates the fourth amendment, what if law enforcement conducted five days of gps monitoring, and then re-opens the investigation a year later and conducts five more days of surveillance? the cumulative harm framework does not provide an answer to this difficulty.246 the third question relates to cross-categorical cumulation.247 for instance, to continue with the facts presented by jones, suppose a week of gps surveillance is sufficient for a 239 see id. at 430 (alito, j., concurring) (describing the cumulative impact of surveilling the vehicle for a long period and not needing to “identify with precision the point at which the tracking of this vehicle became a search”). 240 id. at 419. 241 id. at 430. 242 id. 243 id. at 431. 244 id. at 430. 245 see kerr, supra note 15, at 333 (discussing the difficulty of determining the duration of time necessary to create the relevant mosaic). 246 see id. (discussing the various problems posed by delays and differences in the type of information gathered about different suspects). 247 see supra part ii.d (introducing the idea of cross-categorical cumulation). 2021] cumulative harm framework 187 fourth amendment violation. should a reviewing court be permitted to aggregate the surveillance of a suspect that results from five days of gps monitoring, three days of public camera surveillance, and ten minutes of audio monitoring from a microphone the size of a ballpoint pen?248 if so, even though five days of gps monitoring may be insufficient for a constitutional violation, does the five days of gps monitoring combined with other surveillance become unlawful? what about the cumulation of surveillance of the suspect’s movements in the real world through undercover law enforcement combined with publicly available information online—like information held on social media—249 and a suspects’ information owned by third parties— such as internet search history, call information, cell phone location data, text messages, and emails?250 even if the supreme court creates a bright-line rule to determine how much surveillance is sufficient to constitute a fourth amendment violation, a reviewing court would face serious challenges attempting to appropriately cumulate the surveillance from drastically different types of surveillance. each of these considerations suggest that the cumulative harm framework is not perfect. because the variety of questions presented through the framework’s application cannot be easily answered, or uniformly applied, the framework would be difficult to administer.251 the framework presents “so many novel and difficult questions that courts would struggle to provide reasonably coherent answers,” that some commentators argue against its adoption.252 2. potential for unrestrained judicial discretion as discussed above, the cumulative harm framework presents many challenging questions.253 if adopted, the 248 see kerr, supra note 15, at 334–35. 249 kashmire hill, the secretive company that might end privacy as we know it, n.y. times (jan. 18, 2020), https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facialrecognition.html [ ]. 250 see josephine wolff, losing our fourth amendment data protection, n.y. times (apr. 28, 2019), https://www.nytimes.com/2019/04/28/opinion/fourth-amendment-privacy.html [ ]. see also, jennifer valentino-devries, et al., your apps know where you were last night, and they’re not keeping it secret, n.y. times (dec. 10, 2018) https://www.nytimes.com/interactive/2018/12/10/business/location-dataprivacy-apps.html [ ] (describing the numerous sources of information available to law enforcement in the digital age). 251 see kerr, supra note 15, at 346–47. 252 id. at 353. 253 see id. at 328–29. 188 colum. j. race & l. [vol. 11:147 cumulative harm framework would require judges to answer these questions, thereby granting judges wide judicial discretion.254 if unchecked, “discretion is a dangerous form of power” that could theoretically lead to partiality in administering the law.255 scholarship regarding excessive judicial discretion and advocating for its limitation is extensive.256 in fact, restraining judicial direction is the primary thrust of textualism.257 this note attempts to summarize the predominant arguments. 254 see id. at 346 (describing administrability of a cumulative harm framework as the “legal equivalent of pandora’s box”). 255 william a. fletcher, the discretionary constitution: institutional remedies and judicial legitimacy, 91 yale l.j. 635, 648 (1982). 256 see, e.g., id. at 647–48 (discussing how discretion “is a far from perfect tool”); anastasoff v. united states, 223 f.3d 898, 901 (8th cir. 2000) (judicial discretion “is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion.”) (quoting matthew hale, the history of the common law of england 44–45 (univ. chi. press 1971)); victor j. gold, limiting judicial discretion to exclude prejudicial evidence, 18 u.c. davis l. rev. 59, 63 (1984) (“propos[ing] limits on judicial discretion to exclude prejudicial evidence under [federal] rule [of evidence] 403 by suggesting standards for interpretation and application.”); daniel a. chatham, playing with post-booker fire: the dangers of increased judicial discretion in federal white collar sentencing, 32 j. corp. l. 619, 620 (2007) (arguing for the limiting of judicial discretion in sentencing of non-extraordinary white collar crimes); kenneth anthony laretto, precedent, judicial power, and the constitutionality of “no-citation” rules in the federal courts of appeals, 54 stan. l. rev. 1037, 1055 (2002) (arguing for the limitation of judicial discretion in using nonpublished opinions); linda d. jellum, “which is to be master,” the judiciary or the legislature? when statutory directives violate separation of powers, 56 ucla l. rev. 837, 847 (2009) (discussing how legislatures have attempted to limit judicial discretion by creating “statutory directives . . . that tell the judiciary how to interpret a statute or statutes”). but see, erwin chemerinsky, seeing the emperor’s clothes: recognizing the reality of constitutional decision making, 86 b.u. l. rev. 1069, 1069, 1080 (2006) (discussing how “[j]udges always have discretion” and that “judges make law constantly”). 257 peter j. smith, textualism and jurisdiction, 108 colum. l. rev. 1883, 1899 (2008) (“textualism . . . is an approach to statutory interpretation that accords dispositive weight to the meaning of the statutory text. it maintains that in interpreting statutes, courts must seek and abide by the public meaning of the enacted text, understood in context. the approach is thus closely identified with oliver wendell holmes’s famous claim that ‘[w]e do not inquire what the legislature meant; we ask only what the statute means.’”) (quoting john f. manning, textualism and legislative intent, 91 va. l. rev. 419, 420 (2005)) (quoting oliver wendell holmes, the theory of legal interpretation, 12 harv. l. rev. 417, 419 (1899)). see also antonin scalia, common-law courts in a civil-law system: the role of the united states federal courts in interpreting the constitution and laws, at 93 (mar. 8–9, 1995) [hereinafter scalia, commonlaw] https://tannerlectures.utah.edu/_documents/a-to-z/s/scalia97.pdf [perma.cc/xnk2-3tqf] (discussing how discretion allows judges to “pursue 2021] cumulative harm framework 189 the primary argument is that, armed with unfettered discretion, judges will overstep their institutional role by creating new laws or invalidating democratically promulgated laws, thereby violating the separation of powers doctrine. 258 the constitution vests powers in the congress to legislate, the president to execute the laws, and the judiciary to adjudicate.259 the separation of powers principle provides that, first, these major branches of governments should be kept in some fundamental senses separate;260 and second, this separateness should allow each branch to guard its own institutional prerogatives and serve as a check to other branches’ selfinterested behavior.261 an overstepping of one branch’s role upon another’s—e.g., if congress sought to make a final determination of whether its own law was constitutional—would violate this principle. some, even as early as james madison, take this argument a step further by positing that a state cannot have the rule of law without separation of powers.262 therefore, empowering judges with wide discretion in assessing the aggregate harm faced by individuals through an entire regulatory framework would permit judges to “pursue their own objectives and desires, extending their lawmaking proclivities from the common law to the statutory field.”263 taking this argument to the extreme, some commentators argue that their own objectives and desires, extending their lawmaking proclivities from the common law to the statutory field”). 258 see kilbourn v. thompson, 103 u.s. 168, 190–91 (1880) (“[a]ll the powers intrusted [sic] to government . . . are divided into the three grand departments . . . . [t]he functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. . . . [t]he successful working of this system that the persons intrusted [sic] with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others.”). 259 u.s const. art. i, § 1 (“all legislative powers herein granted shall be vested in a congress of the united states . . . .”); u.s const. art. ii, § 1 (“the executive power shall be vested in a president of the united states of america.”); u.s const. art. iii, § 1 (“the judicial power of the united states, shall be vested in one supreme court . . . .”). 260 thomas o. sargentich, the contemporary debate about legislativeexecutive separation of powers, 72 cornell l. rev. 430, 435 (1987). 261 id. at 450. 262 see the federalist no. 47 (james madison) (discussing montesquieu’s conception of separation of powers in terms of protection of liberty under law, and in particular of preventing “the same monarch or senate” that enacts laws from being able “to execute them in a tyrannical manner”). 263 scalia, common-law, supra note 257, at 93. 190 colum. j. race & l. [vol. 11:147 excessive judicial discretion threatens the legitimacy of the judiciary.264 another argument is that with increased discretion, the most important factor in determining an outcome of a trial, could be the presiding judge.265 for instance, in the most abstract sense and without clear guidelines, a judge can consider that the cumulative harm resulting from five laws that prevent a woman from receiving an abortion are not sufficient for a constitutional violation. another judge, evaluating the same circumstances, can reach the opposite outcome. the cumulative harm framework also does not provide clear remedies. to continue from the example above, even if two judges agree that the cumulative effect of five laws results in a constitutional deprivation of a right, how would a judge determine which of the five laws to strike down? all of these questions must ultimately be decided, and may be decided differently by the presiding judge of each case. 3. prospective vs. retroactive litigation many of the previous examples focused on litigating harm that has already occurred. however, not all cases are retroactive. facial challenges of statutes focus on prospective harm.266 these challenges allege that a statute is invalid in all of its applications.267 in these instances, the judicial discretion granted under the cumulative harm framework is exacerbated because the litigation is based on prospective harm. cases of prospective harm often result from quick legal response to new laws. and often, these lawsuits are facial challenges. a recent reproductive rights case268 and a voter id 264 see william a. fletcher, the discretionary constitution: institutional remedies and judicial legitimacy, 91 yale l.j. 635, 641–49 (1982) (arguing that excessive judicial discretion at remedial stage threatens judicial legitimacy). 265 see derden v. mcneel, 978 f.2d 1453, 1458 (5th cir. 1992). (“[a] free-floating fundamental fairness rule subverts the uniformity of results that is the basic goal of an organized legal system: one defendant may persuade the court that his five non-constitutional errors denied fundamental fairness, while another, less imaginative, may be denied relief simply because he cited only four of the same errors out of the record.”). 266 a successful facial challenge means that a statute is unlawful in all of its potential applications. gillian e. metzger, facial challenges and federalism, 105 colum. l. rev. 873, 880–81 (2005). 267 nihal s. patel, weighty considerations: facial challenges and the right to vote, 104 nw. u. l. rev. 741, 742 (2010). 268 complaint, south wind women’s center v. stitt, 808 f. app’x 677 (10th cir. 2020) [hereinafter oklahoma complaint] (no. civ-20-277-g), 2020 2021] cumulative harm framework 191 case269 demonstrate the speed of which litigation arises and variation in evaluating prospective harm. on march 24, 2020, in response to the covid-19 global pandemic, the governor stitt of oklahoma issued an executive order postponing all elective surgeries and minor medical procedures.270 three days later, on march 27, the governor declared that the order prohibited all abortions which were not a “medical emergency” or “otherwise necessary to prevent serious health risks” to the woman carrying the fetus.271 another three days later, on march 30, the south wind women’s center and planned parenthood filed a lawsuit challenging the government’s order.272 although the plaintiffs were abortion providers, much of the litigation focused on the harm caused to patients who wished to seek an abortion.273 further, even though the prospective harm in this litigation was prospective, it was predictable.274 the prospective harm was at its fullest: a total ban on abortion, with the exception of medical emergency. however, in other cases, aggregating prospective harm is more difficult. take, for example, crawford v. marion county state board of elections.275 on april 27, 2005, the governor of indiana signed senate enrolled act 483 (sea 483).276 the bill required a person to present a photo id when casting an in-person ballot at both primary and general elections.277 a voter who is unable to present photo identification may file a provisional ballot that will wl 1521890 (showing how a complaint was filed three days after a governor clarified that an executive order banned all non-emergency abortions). 269 crawford v. marion cnty. election bd., 553 u.s. 181 (2008). 270 off. governor, j. kevin stitt, fourth amended executive order 2020-07, (mar. 24, 2020), https://www.sos.ok.gov/documents/executive/1919.pdf [https://perma.cc/syq5xkrw]. 271 oklahoma governor stitt, press release: governor stitt clarifies elective surgeries and procedures suspended under executive order (mar. 27, 2020), https://www.governor.ok.gov/articles/press_releases/governor-stitt-clarifieselective-surgeries [https://perma.cc/29ls-rvsk]. 272 oklahoma complaint, supra note 268, ¶ 1. 273 id. ¶¶ 4–5. 274 id. ¶ 5 (“plaintiffs will be forced to continue turning away patients, resulting in immediate and irreparable harm for which no adequate remedy at law exists.”) (emphasis added). 275 crawford v. marion cnty. election bd., 553 u.s. 181 (2008). 276 complaint at ¶ 4, crawford v. marion cnty. election bd., 553 u.s. 181 (2008) (1:05-cv-0634-seb-vss), 2005 wl 3708052 [hereinafter, crawford complaint]. 277 id. 192 colum. j. race & l. [vol. 11:147 be counted if they bring their photo id to the circuit court clerk’s office within ten days.278 the democratic party filed their complaint five days later, arguing that “requiring registered and otherwise qualified voters who do not presently possess” photo identification at the time of voting was unlawful.279 the crawford plaintiffs argued that sea 438 was especially burdensome to impoverished people, elderly people, people experiencing homelessness, and people of color.280 the supreme court discussed the difficulty in evaluating prospective harm in the context of a facial challenge. justice stevens, writing for the court’s majority, agreed that through the indiana law, “a somewhat heavier burden may be placed on a limited number of persons.”281 yet, the court found that “on the basis of the evidence in the record it [was] not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them.”282 the record did not show “any concrete evidence of the burden imposed on voters who currently lack photo identification,” nor were some of the witnesses able to indicate “how difficult it would be for them to obtain” the necessary documentation for a state-issued photo id card.283 some witnesses even testified that they were able to pay for the necessary documents to receive a photo identification card.284 overall, the crawford court concluded that they “do not know the magnitude of the impact sea 483 will have on indigent voters.”285 the court was especially reluctant to accept the plaintiff’s facial challenge to sea 483 because plaintiffs bear a heavy burden of persuasion in these types of challenges.286 justice steven advances a reasonable concern. it is often difficult to quantify the magnitude of harm or estimate the scope of individuals that will be harmed by a potential law.287 when harm is retroactive, at least judges can point to separate 278 ind. code ann. § 3-11.7-5-2.5(b) (west 2006); crawford, 553 u.s. at 186. 279 crawford complaint, supra note 276, at ¶ 17. 280 brief for petitioners at 39–45, crawford v. marion county election bd., 553 u.s. 181 (2008) (no. 07-21), 2007 wl 3276506. 281 crawford, 553 u.s. at 199. 282 id. at 200. 283 id. at 201. 284 id. 285 id. 286 see id. at 202–03 (deciding that the plaintiff did not show that the “statute imposes ‘excessively burdensome requirements’ on any class of voters”). 287 see id. at 200 (describing the high burden of persuasion imposed by a broad attack on the constitutionality of sea 483 and questioning the accuracy of the evidence in the record to determine the magnitude of the burden). 2021] cumulative harm framework 193 occurrences to justify the use of the cumulative harm framework. when harm is prospective, judges cannot. a prediction of prospective harm may be reasonable, yet the calculus of evaluating the cumulative impact of prospective harm grants judges with more discretion. at one extreme, such as a total ban, prospective harm is clear. at the other, judges may not be able to adequately evaluate the type, severity, or expansiveness of potential harm. c. the judiciary should adopt the cumulative harm framework the cumulative harm framework has advantages and disadvantages. the judiciary, despite such drawbacks, should adopt the cumulative harm framework more broadly. courts are well-equipped to implement this framework because the framework is used throughout constitutional law.288 the cumulative harm framework evaluates potential constitutional violations from the perspective of right-holders.289 this perspective is reasonable because the “constitution protects individuals.”290 without this perspective, and without this framework, the judiciary cannot adequately address continued incremental burdens.291 the cumulative harm framework also is better equipped to evaluate and address second-generation discrimination than other analytical methods.292 because secondgeneration discrimination and harms are no longer explicit deprivations of rights, courts should expand analysis to cumulative harm experienced by individuals—including harm experienced from a collection of statutes. although the framework provides judges with more discretion, discretion is a natural element of the judicial process.293 judicial discretion “allows for the operation of expertise and human sensitivity where standards or stringent review might stifle such expression.”294 limiting a judge’s discretion through an adoption of the sequential approach will be under-inclusive because a rigid rule does not have the flexibility 288 see discussion supra part iii and part iv.a.2. 289 see discussion supra part iv.a.1. 290 planned parenthood of se. pa. v. casey, 505 u.s. 833, 896 (1992). 291 see siegel, supra note 216, at 1706 (describing one strategy of the antiabortion movement as emphasizing incremental opposition to roe and abortion legislation to change public opinion). 292 see discussion supra part iv.a.3. 293 see erwin chemerinsky, supra note 256, at 1069, 1080 (discussing how “[j]udges always have discretion” and that “judges make law constantly”). 294 abraham d. sofaer, judicial control of informal discretionary adjudication and enforcement, 72 colum. l. rev. 1293, 1296 (1972). 194 colum. j. race & l. [vol. 11:147 to account for the complexity of life.295 the more complex cases become, the more “individualized justice [is needed], that is, justice which to the appropriate extent is tailored to the needs of the individual case. only through discretion can the goal of individualized justice be attained.”296 this flexibility allows the judiciary to respond to novel questions that arise in contemporary society in innovative ways.297 thus, “there can be no justice without discretion.”298 v. conclusion this note has shown the power of different analytical methods of constitutional review. the supreme court employs the cumulative harm framework in multiple areas of law.299 in contrast, the supreme court also adopts the sequential approach in other areas of law.300 this note evaluates the advantages and disadvantages of the cumulative harm framework.301 by doing so, this note demonstrates that constitutional questions can turn on the analytical framework adopted by a reviewing court. because the “constitution protects individuals . . . from unjustified state interference,” the judiciary should more broadly apply the cumulative harm framework.302 this framework is the best analytical method to combat new forms of discrimination and help the judiciary truly bring equal justice under law. 295 see david p. leonard, power and responsibility in evidence law, 63 s. cal. l. rev. 937, 999–1000 (1990). 296 kenneth culp davis, discretionary justice: a preliminary inquiry 19 (1969). 297 see leonard, supra note 295, at 1002. (“[judicial] [d]iscretion . . . permits innovation and creativity in law. one of the strengths of the common law is that it was composed in large part of broad principles rather than detailed rules, thus facilitating creativity and innovation that help the law to mature in more enlightened ways.”). see also, carl e. schneider, discretion, rules and law: child custody and the umda’s best-interest standard, 89 mich. l. rev. 2215, 2217 (1991) (“in a modern society, the law regulates the complex behavior of millions of people. to do this efficiently [the judiciary] must use broadly applicable rules. yet such rules are bound . . . to fail in some cases . . . . some of these failures can be ameliorated by according discretion to . . . judges.”). 298 harold e. pepinsky, better living through police discretion, 47 law & contemp. problems 249, 253 (1984). 299 see discussion supra part ii. 300 see discussion supra part iii. 301 see discussion supra part iv. 302 planned parenthood of se. pa. v. casey, 505 u.s. 833, 896 (1992). columbia journal of race and law forum vol. 12 june 2022 no. 1 an unintended abolition: family regulation during the covid-19 crisis anna arons in a typical year, new york city’s vast family regulation system, fueled by an army of mandated reporters, investigates tens of thousands of reports of child neglect and abuse, policing almost exclusively poor black and latinx families even as the government provides those families extremely limited support. when the city shut down in the wake of the covid-19 pandemic, this system shrunk in almost every conceivable way as mandated reporters retreated, caseworkers adopted less intrusive investigatory tactics, and family courts constrained their operations. the number of reports fell, the number of cases filed in court fell, and the number of children separated from their parents fell. at the same time, families found support elsewhere, through suddenly burgeoning mutual aid networks and infusions of new government entitlements. this large-scale reconfiguration of the family regulation system represents a short-term experiment in abolition: in this period, new yorkers moved away from a system that oppressed poor black and latinx people and not only envisioned but built a more democratic and humane model to protect families. as this piece demonstrates, under this new model, families remained just as safe. data from the courts and from the city’s administration for children’s services reveal that there was no rise in child neglect or abuse during the shutdown period. furthermore, once the city began to reopen, there was no perceivable “rebound effect,” that is, no delayed, compensatory rise in reports. this piece positions the covid-19 shutdown period as a successful case study, demonstrating one possible future absent the massive, oppressive apparatus of the family regulation system.  acting assistant professor, new york university school of law. many thanks to the organizers and participants in the columbia journal of race and law’s 2021 symposium, strengthened bonds: abolishing the child welfare system and re-envisioning child wellbeing. thank you to the many parents, activists, and practitioners with whom i spoke for sharing their thoughtful reflections with me. finally, thank you to nina nevarez for excellent research assistance. 2 colum. j. race & l. f. [vol. 12:1 i. introduction.......................................................................................... 3 ii. putting the family regulation system on pause ................................ 5 a. new limits on the family regulation system ............................. 7 1. the closure of schools .......................................................... 7 2. guidance to child protective specialists .............................. 8 3. guidance to contracted agencies ......................................... 9 4. limitations on the reach of family court ......................... 10 b. effect of march directives .......................................................... 13 1. decrease in reports and investigations ............................. 13 2. decrease in family separations ......................................... 15 c. sustained safety ......................................................................... 18 1. fall in child abuse ............................................................. 18 2. absence of a rebound effect ............................................... 20 iii. supporting families without regulating families........................... 21 a. mobilization of mutual aid ......................................................... 22 b. government support without government control .................. 25 iv. conclusion .......................................................................................... 27 2022] an unintended abolition 3 i. introduction abolition of the family regulation system is too often dismissed as a fantasy, an impracticable ideal that cannot be tested in reality. yet the covid-19 crisis provided exactly such a test: for several months, in much of the country, the family regulation system ceased to function as usual and was reduced to its bare bones. new york city, the initial epicenter of the crisis, shut down in mid-march 2020 and remained under near-total lock-down until mid-june. during that time, mandated reporters and agency caseworkers were sidelined and courts limited their operations. the number of reports of child neglect and abuse fell, the number of cases filed in family court fell, and the number of families separated by the government fell. meanwhile, in the absence of government assistance—and government intrusion—communities developed robust mutual aid projects to meet their needs for food, provisions, childcare, and therapeutic services. as the first wave of the covid-19 crisis receded in new york city, family regulation system operations began to normalize. but while the predominant media narrative predicted that the pandemic and accompanying social isolation would increase child neglect and abuse, the numbers did not bear that out: during new york’s shutdown, child fatalities fell, as did reports of child neglect and abuse. taken in isolation, a drop in reporting during an immediate period of crisis might mean little. but moving into fall 2020, there was no surge in reports even as mandated reporters began to re-enter the field, nor was there any increase in the rate at which investigations found reports of neglect or abuse to be valid. the drop in reporting did not obscure a “boom” in child neglect and abuse. rather, with fewer government-sanctioned separations of families, children stayed just as safe. abolition, writ large, is a decentralized, collectivist project. this grounding gives abolitionist movements strength, vitality, and flexibility, but can also make the meaning of “abolition” feel opaque or ephemeral.1 yet over the last several decades, activists, organizers, and scholars have set forth a robust abolitionist philosophy.2 reviewing this body of 1 compare andrew ferguson, what does defund the police really mean?, atlantic (june 14, 2020), https://www.theatlantic.com/ideas/archive/2020/06/what-does-defund-police -really-mean/612904/ [https://perma.cc/5xxy-aknp], with mariame kaba, yes, we mean literally abolish the police, n.y. times (june 12, 2020), https://www.nytimes.com/2020/ 06/12/opinion/sunday/floyd-abolish-defund-police.html [https://perma.cc/kd4g-juwg]. 2 see, e.g., abolition collective, abolishing carceral society 4 (2018); dan berger, mariame kaba & david stein, what abolitionists do, jacobin (june 24, 2017), https://www.jacobinmag.com/2017/08/prison-abolition-reform-mass-incarceration [https://perma.cc/ds8c-l3mj]; see generally ruth wilson gilmore, golden gulag: prisons, surplus, crisis, and opposition in globalizing california (2007); angela y. davis, are prisons obsolete? 15–21 (2003); who we are, movement for black lives, https://m4bl.org/about-us/#:~:text=the%20movement%20for%20black%20lives,policy%2c %20cultural%20and%20political%20wins%2c [https://perma.cc/s56e-4g7s]; who we are, upend movement, https://upendmovement.org/about/ [https://perma.cc/9dvd-nr8p]; lisa sangoi, co-founder & co-director, movement for family power, keynote address at upending the child welfare system: the road to abolition conference (oct. 29, 2020), https://upendmovement.org/2020/10/29/keynote-address-upend-convening/ [https://perma. cc/224p-kds9]; see also micah herskind, prison abolition resource guide, https://micah herskind.com/abolition-resource-guide/ [https://perma.cc/8ng3-sbcp] (collecting articles and books on abolitionist history, theory and movements). 4 colum. j. race & l. f. [vol. 12:1 abolitionist philosophy, professor dorothy roberts identified three core tenets.3 while roberts explored these tenets in the context of carceral abolition, they are reflected in the abolitionist movements that are working to dismantle a wide range of interconnected systems of oppression, from the wage system, to environmental exploitation, to the military industrial complex, to the family regulation system.4 first, abolition demands that we acknowledge the history of the system in question and grapple with its roots in racial capitalism5—the economic structure endemic to this country under which capital accumulation and the exploitation of labor are facilitated by racial hierarchy and the deep inequalities produced by that hierarchy.6 second, and closely related, abolition requires that we follow that history forward to the present to consider how the expansion and maintenance of the system “functions to oppress black people and other politically marginalized groups in order to maintain a racial capitalist regime.”7 finally, roberts highlights a third tenet, so often forgotten or deliberately ignored by those who dismiss abolition. she positions abolition as a hopeful and generative project, one that asks that we “imagine and build a more humane, free, and democratic society” that no longer relies on systematic violence to meet human need and solve social problems.8 accordingly, while abolitionists may accept that systems of oppression cannot be dismantled overnight, they emphasize chipping away at oppressive institutions and shrinking the state’s capacity for violence rather than legitimizing or entrenching existing systems.9 this piece examines the covid-19-induced period of temporary abolition of the family regulation system in new york city. part i describes the dramatic limitations placed on new york city’s family regulation system—a system that targets, almost exclusively, poor black and latinx 3 dorothy e. roberts, abolition constitutionalism, 133 harv. l. rev. 1, 7 (2019) [hereinafter roberts, abolition constitutionalism]. 4 see roberts, abolition constitutionalism, supra note 3, at 7 (recognizing that “all of these oppressive systems and the movements for their eradication are interconnected”); dorothy e. roberts, how i became a family policing abolitionist, 11 colum. j. race & l. 455, 457 (2021) [hereinafter roberts, how i became a family policing abolitionist]. 5 see roberts, abolition constitutionalism, supra note 3, at 7. 6 see roberts, abolition constitutionalism, supra note 3, at 14 n.60 (citing cedric j. robinson, black marxism: the making of the black radical tradition 2 (2000)). 7 roberts, abolition constitutionalism, supra note 3, at 7–8. 8 roberts, abolition constitutionalism, supra note 3, at 7–8. 9 miriam mack, the white supremacy hydra: how the family first prevention services act reifies pathology, control, and punishment in the family regulation system, 11 colum. j. race & l. 767, 807 (2021) [hereinafter mack, the white supremacy hydra] (“[t]he family regulation system was neither erected in a day, nor will it be dismantled in a day. while progress toward abolition may at times be incremental, abolitionist steps are about gaining ground in the constant effort to radically transform society and chipping away at oppressive institutions rather than helping them live longer.”) (quoting critical resistance, abolitionist steps, in the abolitionist toolkit 48, 48 (2004), http://critical resistance.org/wp-content/uploads/2012/06/ab-toolkit-part-6.pdf [https://perma.cc/tgb6kuts]). abolitionists often frame this practice as pursuing “non-reformist reforms,” as opposed to reformist reforms. id.; see also roberts, how i became a family policing abolitionist, supra note 4, at 465 (citing dan berger, mariame kaba & david stein, what abolitionists do, jacobin (june 24, 2017), https://www.jacobinmag.com/2017/08/prisonabolition-reform-mass-incarceration [https://perma.cc/c55s-5gel]). 2022] an unintended abolition 5 families—during the covid-19 shutdown. this part concludes, based on data from new york city’s administration for children’s services (“acs”) and family courts, that the shrinking of the family regulation system had no adverse effect on the safety of children. part ii then describes the mutual aid groups that grew as the family regulation system shrank. together with increased government cash aid, these mutual aid groups’ work met families’ vital needs through a model of collective action and selfdetermination, rather than policing and state violence. though unintentional, this brief experiment shows that the outsized and reactionary family regulation system that new york built up prior to the pandemic is not necessary to protect children. that system purported to address the problem of child maltreatment, but “child maltreatment” often means nothing more than child poverty.10 thus, it should not be surprising that the system’s draconian tools of surveillance and separation were ill-fit to that problem. indeed, the data from the shutdown period makes this clear: with less surveillance and fewer separations, children stayed just as safe, demonstrating that in “normal” times, we needlessly separate children from their families even when children would have been as safe at home. instead of reverting to an oppressive system of family policing, we can address child poverty by insisting on a radically reduced and re-envisioned system that relies on principles of mutual aid rather than government-led oppression. abolition need not be a fantasy; new york city already made it, for a moment, a reality. ii. putting the family regulation system on pause through early 2020, new york city operated a vast family regulation system, surveilling and policing thousands of families annually. this system did not focus evenly on all of new york’s families; rather, it focused on poor black and latinx families almost exclusively. over the last five years, one in five new york city children—but one in three black and latinx children—had contact with the system.11 at every stage of the family regulation system, black and latinx children are overrepresented: while only sixty percent of the city’s children are black or latinx, ninety percent of children named in investigations, ninety percent of children placed in foster care, and ninety percent of children in open preventive service cases are black or latinx.12 while poverty drives reports of neglect generally, the system especially targets poor black and latinx families. neighborhoods with the highest rates of child poverty had rates of investigation four times higher than neighborhoods with the lowest rates of child poverty, but even among neighborhoods with similar poverty rates, 10 see infra part ii. 11 lisa sangoi, “whatever they do, i’m her comfort, i’m her protector.” how the foster system has become ground zero for the u.s. drug war, movement for fam. power, https://drugpolicy.org/resource/mfpreport [https://perma.cc/zjk5-lr2c]. 12 hearing before the comm. on the general welfare, n.y. city council 9 (oct. 31, 2019) (written testimony of david hansell, comm’r of the admin. for child. servs.), https://legistar.council.nyc.gov/view.ashx?m=f&id=7848724&guid=1fcb59bf-36094090-8adc-17fa992bb742 [https://perma.cc/zay5-ys86]; see also infra part ii.a.3, (describing preventive service model). 6 colum. j. race & l. f. [vol. 12:1 those with higher concentrations of black and latinx residents had higher rates of investigation.13 this disproportionality is neither a coincidence nor a recent phenomenon. the project of policing poor black and native families and immigrant families is older than the country itself. black enslaved families were forcibly separated, in a pattern of state-sanctioned violence that tore apart families and pathologized and punished black parents.14 the government enacted the same sort of violence on native families, removing native children from their families to forcefully assimilate them.15 in urban areas, white middle class reformers, aided explicitly and implicitly by the state, cast poor immigrant mothers as “degraded, immoral, and sexually promiscuous,” and sought to take their children, too.16 even as the language of family regulation became more refined and its tactics more subtle, its underlying purpose of controlling and pathologizing marginalized families persisted. indeed, it was only when black children began receiving welfare benefits in large numbers that family regulation agencies “pivoted sharply from providing services to children in their homes to taking children from their parents,” a pivot that marked the birth of the modern family regulation system.17 the very meaning of “child maltreatment” contributes to the overrepresentation of poor children in the family regulation system. in new york, fewer than fifteen percent of reports received allege physical or sexual abuse, whereas sixty-five percent allege “neglect,” a category capturing everything from malnutrition to inadequate clothing or shelter, to lack of appropriate supervision.18 not only may conditions of poverty— a lack of material resources and a lack of access to childcare, healthcare, mental health services, and substance use treatment—be conflated with child neglect, but residential segregation along racial and class lines, together with poorer families’ increased reliance on government services, 13 angela butel, data brief: child welfare investigations and new york city neighborhoods, the new sch. ctr. for n.y.c. affs. (2019), http://www.centernyc.org/ data-brief-child-welfare-investigations [https://perma.cc/93un-dy9r] (comparing investigations among new york city’s 59 community districts). 14 dorothy e. roberts, shattered bonds 233–236, 248–250 (2003) [hereinafter roberts, shattered bonds]; see also miriam mack, the white supremacy hydra, supra note 9 at 781 (citing peggy c. davis & richard g. dudley, jr., the black family in modern slavery, 4 harv. blackletter j. 9 (1987)). 15 theresa rocha beardall & frank edwards, abolition, settler colonialism, and the persistent threat of indian child welfare, 11 colum. j. race & l. 533, 538 (2021). 16 amy mulzer & tara urs, however kindly intentioned: structural racism and volunteer casa programs, 20 cuny l. rev. 23, 55, 57 (2016) (describing the role of reformers in the regulation of immigrant families and noting that reformers served as “virtually a judge’s private advisor” and “judges usually accepted the [private] agency’s advice”). 17 roberts, how i became a family policing abolitionist, supra note 4, at 464. 18 compare n.y.c. admin. for child. servs., flash monthly indicator report: july 2020, at 29 (2020), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flash reports/2020/07.pdf [https://perma.cc/m4gv-ls3h] [hereinafter july 2020 flash report], with n.y.c. admin. for child. servs., flash monthly indicator report: july 2019, at 27 (2019) [hereinafter july 2019 flash report]. 2022] an unintended abolition 7 places marginalized families under heavier surveillance by mandated reporters.19 the family regulation system, then, has long played a key role in maintaining racial and class hierarchies by policing poor black, native, and immigrant families.20 this project has long been entrenched in new york, as the government, aided by an army of mandated reporters, investigated and punished poor black and latinx families for conditions of poverty, coerced families into ongoing services, and broke apart families. in march 2020, this machinery met an obstacle it could not churn through: the emergence of covid-19 in new york city. as city and state officials ordered shutdowns and limited every aspect of new yorkers’ lives, the family regulation system shrunk too: schools closed for in-person learning, caseworkers limited home visits, and family courts restricted the kinds of cases they would hear. this part describes these key changes to the operations of the family regulation system during the “covid-19 pause” and the effect of those changes on the families and communities usually surveilled by acs. a. new limits on the family regulation system 1. the closure of schools on march 11, 2020, mayor bill de blasio told new yorkers, “if you’re not sick, you should be going about your life.”21 just four days later, on march 15, 2020, he announced the closure of new york city’s public schools.22 this closure, affecting 1.1 million schoolchildren, signaled a new phase in the city’s covid-19 response, presaging the broader new york state on pause executive order that closed all non-essential businesses and banned all non-essential gatherings a week later.23 for the family regulation system, the closure of public schools meant the loss of its primary source of surveillance. in the period leading up to the pause, school personnel were responsible for more than a quarter of all calls to the state central register (“scr”), new york’s child protection hotline.24 this was not unique to new york: nationwide, education personnel make more child maltreatment allegations than any 19 see generally martin guggenheim, what’s wrong with children’s rights 192–193 (2005) (citing duncan lindsey, the welfare of children 65–66 (1994)) (describing poverty as the number one predictor of reports of neglect); tina lee, catching a case: inequality and fear in new york city’s child welfare system (2016) (describing family regulation system as a punitive system that punishes parents for poverty and removes children from their parents’ care, rather than providing parents the necessary financial support). 20 see generally roberts, shattered bonds, supra note 14. 21 serena dai, mayor says that healthy people should still be dining out, eater (mar. 11, 2020), https://ny.eater.com/2020/3/11/21175497/coronavirus-nyc-restaurants-safedine-out [https://perma.cc/am93-rav3]. 22 eliza shapiro, new york schools to close to slow the spread of coronavirus, n.y. times (mar. 15, 2020), https://www.nytimes.com/2020/03/15/nyregion/nyc-schools-closed. html [https://perma.cc/hul5-ut7v]. 23 new york state on pause: 10 point plan, n.y. state (mar. 22, 2020), https://web. archive.org/web/20200401234802/https://coronavirus.health.ny.gov/new-york-state-pause. 24 n.y.c. admin. for child. servs., flash monthly indicator report: march 2020, at 28 (2020), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flashreports/2020/ 03.pdf [https://perma.cc/3dm6-qchv] [hereinafter mar. 2020 flash report]. 8 colum. j. race & l. f. [vol. 12:1 other group, though decades of data show that these same reports are the least likely to be substantiated by an investigation.25 decades of research show, too, that reporters are more likely to suspect and report neglect or abuse of poor black and latinx children than of white higher-income children.26 often, rather than ensuring the safety of students, educators’ reporting habits create distrust between parents and schools, and contribute to the regulation and penalization of the city’s black and latinx families.27 by moving schools to remote operations, the city began to close this spigot. 2. guidance to child protective specialists just as surveillance of children at school decreased, so, too, did surveillance of families in their homes. on march 15, 2020, the state office of children and family services (“ocfs”) issued a guidance to family regulation workers regarding safety measures for investigations (the “investigation guidance”).28 it encouraged caseworkers, “when appropriate, to remotely assess the safety and risk posed to a child,” and to conduct a health screening of families before arriving at their homes.29 this marked a stark departure from usual investigatory protocol. acs typically commences its investigations by going to a family’s home unannounced for an initial visit where workers enter every room, open cabinets and refrigerators, question parents and children separately, and demand to perform “body checks” examining children’s near-nude bodies.30 these intrusive investigations can spiral quickly, especially because 25 dana weiner et al., chapin hall at the univ. of chicago, covid-19 and child welfare: using data to understand trends in maltreatment and response 2 (2020), https://www.chapinhall.org/wp-content/uploads/covid-and-child-welfare-brief.pdf [https://perma.cc/tw5n-q4gr]; brianna harvey, josh gupta-kagan & christopher church, reimagining schools’ role outside the family regulation system, 11 colum. j. race & law 575, 585 (2021) (describing schools as largest source of reports and noting that “[a]t every stage of the process, allegations from schools are less likely to protect children” than reports from other sources). 26 jessica dixon weaver, the african-american child welfare act: a legal redress for african-american disproportionality in child protection cases, 10 berkeley j. afr.-am l. & pol’y 109, 117 (2008); jina lee et al., implicit bias in the child welfare, education, and mental health systems, nat’l ctr. for youth law 3 (2015), https://youthlaw.org/wpcontent/uploads/2015/07/implicit-bias-in-child-welfare-education-and-mental-healthsystems-literature-review_061915.pdf [https://perma.cc/6cq7-k8sr]. 27 rebecca klein & caroline preston, when schools use child protective services as a weapon against parents, hechinger rep. (nov. 17, 2018), https://hechingerreport.org /when-schools-use-child-protective-services-as-a-weapon-against-parents/ [https://perma.cc /lpa3-kylx]; see also harvey, gupta-kagan & church, supra note 25, at 14. 28 lisa ghartey, deputy comm’r, n.y. off. of child. & fam. servs. div. of child welfare & cmty. servs., novel coronavirus of 2019 disease (covid-19) guidance for children protective services staff (mar. 15, 2020) [hereinafter ocfs investigation guidance for cps staff], https://ocfs.ny.gov/main/news/2020/covid-2020mar15-guidance-forcps.pdf [https://perma.cc/k4c9-36qc]. 29 ocfs guidance for cps staff, supra note 28. 30 a parent’s guide to a child abuse investigation, n.y.c. admin. for child. servs., https://www1.nyc.gov/site/acs/child-welfare/parents-guide-child-abuse-investigation .page [https://perma.cc/vt3q-la7e]; the child welfare organizing project et al., the survival guide to the nyc child welfare system: a workbook for parents by parents 24 (2007), http://www.brooklynacslawyer.com/acssurvivalguide.pdf [https://perma. cc/hgh8-mlby]; michelle burrell, what can the child welfare system learn in the wake of the floyd decision?: a comparison of stop-and-frisk policing and child welfare investigations, 22 cuny l. rev. 124, 131 (2019). 2022] an unintended abolition 9 parents are rarely, if ever, informed that they have a right to counsel, and instead are encouraged to be “forthcoming,” without receiving warning that their statements may be used against them.31 thus, an investigation into a child’s lateness to school might, once a worker enters a home and interviews a parent, become an investigation into the family’s “dirty home” or into the parent’s marijuana use, if revealed to a worker who presented themself as a helper. the investigation guidance limited the sprawling and invasive nature of investigations, requiring that families receive advance notice and encouraging acs workers to stay out of families’ homes if possible. 3. guidance to contracted agencies beyond the surveillance typically carried out by its own employees, acs contracts with private agencies, which place and monitor children in foster homes and administer “preventive services.”32 as part of an investigation, acs may refer a family to in-home preventive services— which might include ongoing home visits from a caseworker, accompanied by referrals for services like therapy or substance use treatment—and to limited material provisions, like diapers, furniture, and clothing for children.33 acs touts preventive services as voluntary.34 but families often feel that they have no real choice; if parents do not accept the referral, acs may file a case against them and even try to remove their children from their care.35 preventive in-home services are cast as a more progressive alternative to foster care, allowing families to stay safely together while providing them needed assistance.36 but preventive services are not a panacea, nor should they be treated as a gentler version of family regulation. they are unequally offered, with black families least likely to 31 burrell, supra note 30, at 144–145; eileen grench, city, union push back on informing parents of rights in child-welfare probes, the city (oct. 19, 2021), https://www. thecity.nyc/2021/10/19/22735575/nyc-child-welfare-probes-parents-not-told-their-rights [https://perma.cc/gv2g-7kew]. 32 about acs, n.y.c. admin. for child. servs., https://www1.nyc.gov/site/acs/ about/about.page [https://perma.cc/57tj-l9zz]. 33 a parent’s guide to a child abuse investigation, supra note 30; prevention services, n.y.c. admin. for child. servs., https://www1.nyc.gov/site/acs/child-welfare/ prevention-services.page [https://perma.cc/kf4c-yag2]. 34 a parent’s guide to a child abuse investigation, supra note 30. 35 see, e.g., kathryn joyce, the crime of parenting while poor, new republic (feb. 25, 2019), https://newrepublic.com/article/153062/crime-parenting-poor-new-york-city-childwelfare-agency-reform [https://perma.cc/9ylq-264j] (quoting a social worker who describes preventive service model as, “supposedly voluntary, but there’s a lot of undertone that, ‘if you don’t, we’ll be watching’”); see also soledad a. mcgrath, differential response in child protection services: perpetuating the illusion of voluntariness, 42 u. mem. l. rev. 629, 671 (2012). 36 see, e.g., jim purcell, opinion, prevention services can help nyc avoid a feared foster-care surge, city limits (june 10, 2020), https://citylimits.org/2020/06/10/opinionprevention-services-can-help-nyc-avoid-a-feared-foster-care-surge/ [https://perma.cc/6zxv5r74]; fernando clara et al., nat’l implementation rsch. network & casey fam. programs, implementing evidence-based child welfare: the new york city experience, casey fam. programs 10 (2017), https://caseyfamilypro-wpengine.netdna-ssl.com/media/evidencebased-child-welfare-nyc.pdf [https://perma.cc/xlq9-r5v6]. 10 colum. j. race & l. f. [vol. 12:1 receive a referral.37 if they are offered at all, they serve as another means of surveillance, as preventive service caseworkers, who are mandated reporters, must see families approximately twice each month.38 the threat of a new report hangs heavy, diminishing trust between families and caseworkers, and leading to family separations for concerns that likely never would have risen to the level of an scr report.39 in spite of families’ reservations, acs’s preventive program has ballooned over the last two decades. as of march 2020, there were 21,200 children and 9,100 families enrolled in preventive services.40 but on march 20, 2020, ocfs issued a guidance (the “preventive guidance”) urging the private agencies with which it contracts to reduce in-person contact.41 it encouraged preventive agencies to carry out “casework contacts” remotely when possible and to pre-screen families for covid-19 before any home visits.42 thus, ocfs reduced the surveillance of families engaged in “voluntary” services just as it reduced the surveillance of families by acs staff during investigations. 4. limitations on the reach of family court the family regulation system’s surveillance and investigation apparatus feeds into the city’s family court system. in order to obtain final orders removing children from their parents’ care or requiring that parents participate in certain services, the government must file a petition in court and ultimately prove that a child was abused or neglected. the constitution demands as much, as the integrity of the family unit is protected under the due process clause of the fourteenth amendment, and the government may only impinge upon it after proving a parent’s 37 child. bureau, dep’t of health and human servs., children of color in the child welfare system: perspectives from the child welfare community 7 (2003), https://www.childwelfare.gov/pubpdfs/children.pdf [https://perma.cc/h632-vwrl]. 38 n.y. off. of child. & fam. servs., preventive services practice guidance manual ch. 4, at 4-7 (2015), https://ocfs.ny.gov/main/publications/preventive%20services %20guide%202015.pdf [https://perma.cc/ghr6-xkk2] [hereinafter ocfs preventive services guidance manual] (“caseworkers are mandated reporters under state law, and may be prosecuted or fined if they fail to report.”); id. app. c-1 (requiring minimum of twelve casework contacts every six months). 39 ocfs preventive services guidance manual, supra note 38, ch. 6, at 6-6 (instructing caseworkers to pay special attention to matters like the family’s “hygiene and cleanliness” and the family’s level of enthusiasm for preventive services); see also joyce, supra note 35 (“acs’s successes have been tempered by the fact that, because many poor parents view acs as inherently dangerous, they routinely walk away from the programs that are designed to support them, rather than invite child welfare into their lives.”); interview with attorney a, parent defense attorney, n.y.c. public defender office (july 15, 2020) (on file with author) [hereinafter interview with parent att’y a] (recounting case in which caseworker reported a family because a young child had a “patch of dirt” on her skin, there was “very little food” in the home, and the mother regularly contacted the preventive service agency requesting assistance buying food), 40 n.y.c. admin. for child. servs., quarterly report on prevention services utilization, january–march 2020 (2020), https://www1.nyc.gov/assets/acs/pdf/ data-analysis/2020/ll11preventionservicesq12020.pdf [https://perma.cc/22vk-e9s9]. 41 lisa ghartey ogundimu, deputy commir’s, n.y. off. of child. & fam. servs. div. of child welfare & cmty. servs., novel coronavirus of 2019 disease (covid-19) guidance for foster care and preventive staff (mar. 20, 2020), https://ocfs.ny.gov/main/news/ 2020/covid-2020mar20-guidance-for-foster-care-and-preventive-staff.pdf [https://perma.cc/n9cu-f793] [hereinafter ocfs guidance for preventive staff]. 42 ocfs guidance for preventive staff, supra note 41, at 3–4. 2022] an unintended abolition 11 unfitness.43 in theory, then, parents’ participation in services and cooperation with agency supervision prior to the entry of a finding of neglect or abuse is strictly voluntary. but in reality, parents often have no choice but to accede to “service plans” before a finding is made against them, as acs may ask a judge to condition a child’s release home to their parents on the parents’ “cooperation” with services and ongoing home supervision.44 if a parent does not agree to these orders, acs may instead seek orders removing a child from their home.45 on march 23, 2020, hon. jeanette ruiz, the administrative judge of the new york city family court, issued the new york city family court coronavirus plan, effective march 26, 2020 (the “court plan”).46 under that directive, the family courts in the city’s five boroughs shifted to virtual operations and limited the types of cases they would hear.47 on existing cases, all non-emergency matters—including trials, status conferences, and pending visitation applications—were adjourned.48 as for new cases, courts accepted only those involving applications for remands,49 the telling term carried over from the carceral state to refer to the city’s applications to remove children from their parents’ care. for those families already deeply embroiled in the family regulation system, this order had tragic and traumatic consequences. parents awaiting trial were left in legal limbo and parents seeking to expand their visitation with their children in foster care had to prevail upon the discretion of acs and foster care agencies, without the ability to challenge those agencies’ decisions in court.50 beyond this immediate 43 stanley v. illinois, 405 u.s. 645 (1972) (holding that the due process clause constitutionally requires the state to accord parents with a hearing on their fitness and to provide unfitness in fact, before separating children); see also n.y. fam. ct. act §§ 1011; 1012; 1027. 44 see amy sinden, “why won’t mom cooperate?”: a critique of informality in child welfare proceedings, 11 yale j. l. & feminism 339, 354–55 (1999) [hereinafter sinden, “why won’t mom cooperate?”] (situating the pressure on mothers to “cooperate” within the “social work discourse” that is often used to frame the family regulation system); see also n.y. fam. ct. act § 1015-a (empowering family courts to order services); id. §§ 1027, 1028 (directing family court judges to consider whether the provision of services to a child or child’s family could prevent or eliminate the need to remove the child from the home). 45 see sinden, why won’t mom cooperate?”, supra note 44, at 345–50 (describing various situations involving children being removed from their homes). 46 hon. jeanette ruiz, administrative judge, n.y.c. fam. ct., updated family court coronavirus plan (mar. 23, 2020) [hereinafter mar. 23, 2020 family court coronavirus plan]. 47 id. at 2. 48 id. at 1. courts continued to hear emergency orders to show cause in these cases; these “emergencies” typically involved requests to change the placement of a child. interview with attorney b, parent defense attorney, n.y.c. public defender office (may 4, 2020) (on file with author) [hereinafter interview with parent att’y b]; interview with attorney c, parent defense attorney, n.y.c. public defender office (may 27, 2020) (on file with author) [hereinafter interview with parent att’y c]. 49 mar. 23, 2020 family court coronavirus plan, supra note 46., at 1 50 ese olumhense, parents seeking return of children must forge connections on screens, the city (may 21, 2020), https://www.thecity.nyc/government/2020/5/21/21270820/ parents-seeking-return-of-children-first-must-forge-connections-on-screens [https://perma. cc/8vl6-vykk]. 12 colum. j. race & l. f. [vol. 12:1 trauma, the pause imperiled parents’ ability to meet statutory timelines to maintain their parental rights to their children.51 but for hundreds of other parents, the court plan effectively prevented acs from hauling them into court at all, as it limited acs’s ability to file new cases to only those that sought to separate children from their parents.52 in 2019, sixty-six percent of the 12,300 children named in proceedings in the city’s family courts were released under court-ordered supervision on the date of filing.53 while some court-ordered supervision cases resulted from judges’ denials of acs’s applications to separate families, far more reflected acs’s own initial applications for court-ordered supervision54—applications that at times reflected concerns for children’s safety but at times arose instead out of frustration with parents’ lack of “cooperation.”55 under the march 23, 2020 directive, no matter how frustrated a caseworker might be, acs could not bring parents to court unless it was prepared to show that their children would be at imminent risk of physical or emotional harm if the children stayed home. as discussed in part i.b, with this heightened barrier to filing, the number of families brought to court dropped precipitously, and so too did the court-ordered separation and surveillance of families. 51 see, e.g., julia lurie, “mommy, how come i only see you on the phone?”, mother jones (mar. 22, 2021), motherjones.com/crime-justice/2021/03/mommy-how-comei-only-see-you-on-the-phone/ [https://perma.cc/g879-ulaz] (describing families’ prolonged separations and limited visits, as well as concerns from officials at the children’s bureau of the u.s. department of health and human services that the clock toward termination of parental rights has “kept ticking in some places”) 52 mar. 23, 2020 family court coronavirus plan, supra note 46, at 1. 53 n.y.c. admin. for child. servs., flash monthly indicator report: january 2020, at 9 (2020), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flashreports/ 2020/01.pdf [https://perma.cc/fp3d-kwms]. 54 because acs does not release data reflecting how often parents challenged their children’s removal, it is difficult to discern the number of cases in which acs initially sought court-ordered supervision, as opposed to the number of cases where acs initially sought, and was denied, an order for a child’s removal, thus converting the case into a court-ordered supervision case. n.y.c admin. for child. servs., response to author’s freedom of information law request (aug. 6, 2020) (on file with author) (request made under the freedom of information law, n.y.pub. off. law § 84 et seq.). however, in those cases where acs conducted emergency removals, then filed for approval in court ex post facto, twenty to twenty-five percent of children were immediately returned home by judges, thus converting those cases into court-ordered supervision cases. michael fitzgerald, new york city council confronts child welfare agency over parent-child separations, imprint (nov. 29, 2018), https://imprintnews.org/news-2/new-york-city-levin-lancman-hansell/32921 [https://perma.cc/ky4v-rp4y]. emergency removals should reflect the direst of circumstances—those cases where acs assessed a child to be in such immediate danger that acs could not seek a court order prior to removal—and thus should reflect, among the cases acs files in court, the strongest cases for removal. we may assume conservatively, then, that judges approve ex ante in-court applications for removal at the same rate they approve ex post applications to approve an out-of-court emergency removal: that is, in seventy-five to eighty percent of cases. under that assumption, in 2019, acs sought court-ordered supervision in about sixty percent of cases. 55 see burrell, supra note 30, at 144 (“in many cases, the caseworker may mark the case as indicated but not pursue formal charges in court if the parents are cooperative with services.”); see also sinden, “why won’t mom cooperate?”, supra note 44, at 345. 2022] an unintended abolition 13 b. effect of march directives the combined effect of these directives—school closures, decreased in-home surveillance, and limits on court operations—was immediate and dramatic. the numbers of reports, investigations, and new family court petitions plummeted. at the same time, on the cases they did hear, family court judges evinced an increased reluctance to separate families amid an unprecedented crisis. though media outlets predicted increases in child abuse, with children “trapped” at home with parents under increased stress and away from the watchful eyes of mandated reporters, acs’s own data show that there was a drop in child abuse in the initial covid-19 shutdown and that rates of child neglect, at worst, remained unchanged. 1. decrease in reports and investigations comparing the three full months following the implementation of the shutdown directives with the same period the prior year, the number of reports to the state central register regarding children in new york city fell by more than 40%, to 9,848 from 17,347.56 reports from families and community members fell by 21% but reports from mandated reporters plummeted by 53%.57 before the shutdown, mandated reporters made two-thirds of all reports but that rate fell to just 55%.58 as might be expected given the parameters of the shutdown, this drop-off was not distributed evenly among mandated reporter groups. while reports by school personnel fell by 83%, reports by medical providers and social service personnel dropped by around 40%, and reports by law enforcement fell by only 33%.59 it should not be surprising that non-educators continued to make reports at relatively high rates; even with schools closed, poor families could not escape all surveillance, as they continued to live in heavily policed neighborhoods and to rely on social service programs that also monitor families.60 despite a spate of articles arguing that parents, under increased financial and emotional stress, might abuse their children at higher rates,61 the content of the reports received did not vary from the year prior. 56 july 2020 flash report, supra note 18; n.y.c. admin. for child. servs., flash monthly indicator report: june 2020, at 3 (2020), https://www1.nyc.gov/assets/ acs/pdf/data-analysis/flashreports/2020/06.pdf [https://perma.cc/fe24-ncxp]; n.y.c. admin. for child. servs., flash monthly indicator report: may 2020, at 3 (2020), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flashreports/2020/05.pdf [https://perma.cc/ce2u-dndr]. these figures refer to reports received by the state central register and include reports that were screened out, i.e. reports that did not trigger an investigation. id. 57 july 2020 flash report, supra note 18, at 28. 58 id. 59 id. 60 mulzer & urs, supra note 16, at 28 nor did teachers curb all of their reporting. as children moved to remote schooling, some teachers began to report children for failing to log on for class. see eileen grench, parents expecting ipad deliveries got knock on door from child welfare workers, the city (apr. 22, 2020), https://www.thecity.nyc/ education/2020/4/28/21247059/parents-expecting-ipad-deliveries-got-knock-on-door-fromchild-welfare-workers [https://perma.cc/8tef-b5nc]. 61 see, e.g., nina agrawal, the coronavirus could cause a child abuse epidemic, n.y. times (apr. 7, 2020), https://www.nytimes.com/2020/04/07/opinion/coronavirus-childabuse.html [https://perma.cc/8fwm-hu8h]; angela uhfeil, calls to colorado’s child abuse 14 colum. j. race & l. f. [vol. 12:1 in spring 2020, in the three months following the shutdown, only 13% of reports concerned physical, sexual, or psychological abuse, a dip from 15% in the same period in 2019. meanwhile, reports coded as neglect, together with reports regarding maltreatment concerns such as parental substance use, school absences, and lack of medical attention, made up approximately 85% of reports in both years.62 likewise, the shutdown did not change the rate at which reports were substantiated. in new york, a report is considered “substantiated” if, after investigation, acs determines that it is supported by “some credible evidence.”63 this is a low burden, satisfied by any “evidence that is worthy and capable of being believed.”64 illustrating the prevalence of overreporting, less than 40% of investigations uncovered evidence that met even this low standard: among reports that resulted in investigations, in spring 2019, the rate of substantiation hovered between 35% and 38%.65 as the number of investigations shrunk, this rate remained steady, staying between 37% and 39% in spring 2020.66 this steady rate of substantiation is particularly noteworthy precisely because it came at a time when fewer reports were received. past studies have shown that when family regulation agencies receive fewer reports, their investigations for each report tend to be more thorough and more accurate, as workers are less bogged down with frivolous reports.67 if anything, then, the rate of substantiation would be expected to rise as the number of reports dropped. instead, it remained unchanged. the decrease in reports and investigations brought with it a decrease in in-home preventive services. compared with the same period in 2019, the number of referrals to preventive services fell by 27% and the number of new cases opened fell even more dramatically, by 45%.68 of all of the services administered by acs, preventive services—which can provide childcare vouchers, access to food pantries, and clothing and diapers for children—might seem the most likely to swell during a recession. but preventive services are tightly linked to acs’s policing arm. in spring 2019, 80% of referrals to these so-called voluntary services hotline have dropped—and that’s not a good thing, 5280 mag. (may 18, 2020), https://www.5280.com/2020/05/calls-to-colorados-child-abuse-hotline-have-dropped-andthats-not-a-good-thing/ [https://perma.cc/a29x-z953]. 62 compare july 2020 flash report, supra note 18, at 29, with july 2019 flash report, supra note 18, at 27. 63 n.y. soc. serv. law § 412(7). effective january 1, 2022, this standard will be raised to a “fair preponderance of the evidence.” id. 64 n.y. comp. codes r. & regs. tit. 18, § 432.1(g). 65 n.y.c. admin. for child. servs., flash monthly indicator report: september 2020, at 6 (2020), https://www1.nyc.gov/assets/acs/pdf/data-analysis/ flashreports/2020/09.pdf [https://perma.cc/u8jv-c6he] (comparing june 2019 and june 2020); n.y.c. admin. for child. servs., flash monthly indicator report: august 2020, at 6 (2020), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flashreports/2020/ 08.pdf [https://perma.cc/3xzr-jt4t] (comparing may 2019 and may 2020); july 2020 flash report, supra note 18, at 6 (comparing april 2019 and april 2020). 66 july 2020 flash report, supra note 18, at 6. 67 see, e.g., mical raz, unintended consequences of expanded mandatory reporting laws, 139 pediatrics persps. 1 (2017); jane spinak, child welfare and covid-19: an unexpected opportunity for systemic change, in law in the time of covid-19 74 (katherina pistor ed., 2020). 68 july 2020 flash report, supra note 18, at 32–33. 2022] an unintended abolition 15 stemmed from acs investigations, while less than 4% stemmed from selfreferrals.69 families, who have never been accustomed to turning to acs for truly voluntary services (as the self-referral numbers indicate),70 continued to find support elsewhere, as discussed in part iii. 2. decrease in family separations as the stream of reports and investigations slowed, so too did the number of new filings in family court and the number of families separated by the government. in the first three full months following the city’s shutdown, the number of new neglect and abuse cases filed by acs in court fell by more than fifty percent, to 1,482, from 3,205.71 this decrease flowed from the decrease in investigations and from the court directive that limited acs to filing new cases only where it sought to separate families.72 it is not surprising that acs filed fewer cases overall. after all, the court directive forbade acs from filing any cases where it sought only court-ordered supervision over intact families, a type of case that previously made up more than half of all filings.73 more surprising is the equally dramatic drop in the number of children placed in foster care. conceivably, the number of children placed in foster care could have stayed nearly steady, if acs had ceased filing court-ordered supervision cases and continued to exercise its power to request removals in the same manner that it had pre-pandemic. instead, compared with the same period the year prior, only half as many children were placed in foster care as a result of acs’s applications for a removal at the time of filing: 375 children in spring 2020, down from 700 in that period in 2019.74 this dramatic drop suggests that during the shutdown, two institutional actors—acs itself and family court judges—began paying greater heed to new york’s legal standard for removal of children from their parents. under that standard, articulated by the new york court of appeals in nicholson v. scoppetta,75 acs must show that a child would be placed at imminent risk of physical or emotional harm if they stayed in their parents’ care and that no orders short of removal could mitigate that harm.76 moreover, in recognition of the trauma that even a brief family separation exacts on any child, acs must show that the risk associated 69 july 2020 flash report, supra note 18, at 33. 70 see a parent’s guide to a child abuse investigation, supra note 30 (discussing lack of parental trust in acs). 71 compare july 2019 flash report, supra note 18, at 8 (reporting new filings for april, may, and june 2020), with july 2020 flash report, supra note 18, at 9 (reporting new filings for same months in 2019). 72 see mar. 23, 2020 family court coronavirus plan, supra note 46. note that acs classifies cases as “court ordered supervision”; “remand” (kinship or non-kinship foster placement); or “other/unspecified.” see, e.g., july 2019 flash report, supra note 18, at 8. the “court ordered supervision” category includes: 1) cases where children stay home with their parents under court-ordered acs monitoring; 2) cases where children are released home to one parent under court-ordered acs monitoring but the other parent is excluded from the home; and 3) cases where children are released to a non-parent friend or relative as an alternative to formal foster care. 73 see supra notes 53–54 and accompanying text. 74 compare july 2019 flash report, supra note 18, at 9, with july 2020 flash report, supra note 18, at 9. this refers only to “remand” applications. see supra note 72. 75 820 n.e.2d 840 (n.y. 2004). 76 nicholson, 820 n.e. 2d at 850–52. 16 colum. j. race & l. f. [vol. 12:1 with the child remaining in their parents’ care outweighs the harm to them caused by a removal from their care.77 with the court directive forbidding the filing of monitoring-only cases, acs should have filed only those cases that it determined met the nicholson standard for removal. indeed, the steep decrease in the number of children placed in foster care demonstrates that acs did in fact request far fewer family separations during the shutdown.78 in a time where families were under increasing pressure, acs requested remands in approximately half as many cases.79 this decrease outpaced the decrease in reports received,80 showing that the drop in requests for remands cannot be attributed solely to a “pipeline problem” from a lack of reports. instead, in addition to holding off on filing monitoring-only cases, acs seems to have begun assessing rigorously the cases in which it might seek a removal and declining to file some cases where it typically would have sought a removal.81 this gives credence to an argument long made by parents and their advocates: that in normal times, acs does not limit itself to seeking removals only in cases that meet the nicholson standard and that it instead seeks removals even where there is no imminent risk or where alternate services could be put in place, out of a sense of frustration with “uncooperative” parents or in an attempt to punish them.82 during the shutdown, even among the smaller set of cases where acs did seek a removal in court, judges, too, appeared to apply nicholson 77 id.; see also, e.g., william wan, what separation from parents does to children: ‘the effect is catastrophic’, wash. post (june 18, 2018), https://www.washingtonpost.com /national/health-science/what-separation-from-parents-does-to-children-the-effect-iscatastrophic/2018/06/18/c00c30ec-732c-11e8-805c-4b67019fcfe4_story.html [https://perma.cc /yjw4-ew3u] (summarizing research showing that separations stunt the neurological development of young children); vivek sankaran, easy come, easy go: the plight of children who spend less than 30 days in foster care, 19 u. pa. j. l. & soc. change 207, 207–37 (2016) (reviewing studies showing that even short-term removals harm children emotionally, developmentally, and socially). 78 the number of children placed in foster care serves as a proxy for the number of family separations requested by acs, as family court judges grant the vast majority of acs’s applications for removal. see supra note 54 and accompanying text (concluding that courts approve seventy-five to eighty percent of removal applications). 79 compare supra note 56 and accompanying text (describing drop in reports) with supra note 71 and accompanying text (describing drop in foster care placements). 80 compare supra note 56 and accompanying text (describing drop in reports) with supra note 71 and accompanying text (describing drop in foster care placements). 81 acs’s decision to exercise its discretion more judiciously in this arena is of a piece with its actions in other arenas during the shutdown. for instance, during the shutdown, acs and foster care providers began to “proactively review[] the cases of 4,000 children and work[] with parents’ and children’s attorneys to determine if cases could move forward with increased and/or unsupervised visiting, pre-disposition release, trial discharge or final discharge” and “found these proactive reviews to be beneficial in expediting the reunification process.” the child welfare system during covid-19: oversight hearing before the comm. on the general welfare, n.y. city council 14 (june 14, 2021) (written testimony of david hansell, comm’r of the admin. for child. servs.), https://www1.nyc.gov/ assets/acs/pdf/testimony/2021/childwelfaresystem.pdf [https://perma.cc/k47h-tg5x]. acs had always had the power to conduct such “proactive” reviews and speed families’ reunifications; it just had not exercised it. 82 see supra note 55 and accompanying text; see also stephanie clifford & jessica silver-greenberg, foster care as punishment: the new reality of ‘jane crow’, n.y. times (july 21, 2017), https://www.nytimes.com/2017/07/21/nyregion/foster-care-nyc-jane-crow. html [https://perma.cc/4tca-zjls]. 2022] an unintended abolition 17 more rigorously, paying special attention to the harm of a removal. whereas judges previously denied twenty to twenty-five percent of acs requests to separate families, in the two weeks immediately following the transition to virtual court, judges denied approximately thirty percent.83 in those cases where parents immediately challenged their children’s removal, judges determined that children should remain with their families in slightly more than fifty percent of cases.84 tasked with determining whether to separate families in the middle of an unprecedented global public health crisis, judges displayed more skepticism of acs’s applications. public defenders who litigated hearings contesting removals during the initial shutdown reported that judges increasingly fixated on the harm of removal to the child, as the pandemic disrupted families’ visits.85 whereas judges typically expect that children in foster care will have at least two visits each week with their parents, that expectation was suddenly disrupted.86 a remand order might now mean that a child would not see their parents in person for months. per observers in court, this uncertainty caused some judges, at least, to weigh the harm of removal more heavily in their analysis and thus grant fewer applications for removals. 87 judges’ increased reluctance to separate families is especially striking considering the context of the applications they were hearing. with acs itself appearing to exercise greater discretion and screening cases more rigorously before requesting separations, the cases that were in fact filed should have represented the direst situations—cases where acs was confident that a court would agree that the children would be at risk at home, where services could not mitigate the risk, and where the harm of removal, even compounded by the lack of meaningful family visitation, did not outweigh the risk of the child staying home. it would follow that judges would grant a higher rate of applications in this context, given acs’s own intensified screening. but instead, judges disagreed with acs with greater frequency, leaving more families together. for more than a decade, acs officials have pointed to the city’s falling foster care population and insisted that they view the removal of children from their families as a “last resort,” a path taken only when 83 compare abigail kramer, child welfare limbo: covid-19 puts family reunifications on ‘indefinite’ hold, the new sch. ctr. for n.y.c. affs. (mar. 30, 2020), http://www.centernyc.org/reports-briefs/2020/3/30/child-welfare-limbo-covid-19-puts-familyreunifications-on-indefinite-hold [https://perma.cc/b32l-hm4q] (discussing outcomes of applications for removals in 2020), with supra note 54 and accompanying text (discussing same for 2019). 84 kramer, supra note 83; fitzgerald, supra note 54. 85 olumhense, supra note 50; interview with parent att’y b, supra note 48; interview with parent att’y c, supra note 48. even when judges did enter orders removing children from their parents’ care, parent defense attorneys reported that judges were more inclined to grant liberal visitation to parents, allowing visits outside the offices of acs or foster care agencies, in order to ensure visits could actually take place in this period. interview with attorney d, parent defense attorney, n.y.c. public defender office (feb. 24, 2021) (on file with author). 86 olumhense, supra note 50; interview with parent att’y b, supra note 48; interview with parent att’y c, supra note 48. 87 interview with parent att’y b, supra note 48; interview with parent att’y c, supra note 48. 18 colum. j. race & l. f. [vol. 12:1 absolutely necessary to protect children from serious harm.88 if this were the case, the extreme reduction in removals during the shutdown would mean that by placing only half as many children in foster care, acs and family court judges left hundreds of new york city children to suffer grave harm at home with unsafe caregivers. but as part i.c shows, the children who stayed home in this period remained safe with their families and within their communities. this precipitous drop in removals, and the absence of any negative consequences for child safety, suggests that in normal times, acs needlessly requests—and courts needlessly approve— hundreds of foster care placements where families never needed that intervention after all. c. sustained safety the pandemic brought a torrent of sensationalist news articles, positing that children were at increased risk from their families during stay-at-home orders.89 these articles, backed by horrifying anecdotes rather than data, were wrong. through the initial pause period, severe child abuse in new york city fell, and there was no compensatory increase in reports as the city began re-opening and as mandated reporters and caseworkers resumed their surveillance. per acs’s own data, even as only half as many children were taken from their families, children stayed just as safe. 1. fall in child abuse measured by reports of child fatalities and physical or sexual abuse, child abuse dropped during the shutdown. while such reports always make up a tiny sliver of child maltreatment concerns, they offer a valuable and much-cited measure.90 all mandated reporters are affected by implicit biases, but child injuries and fatalities serve as a more objective measure than nebulous suspicions of neglect.91 further, concerns that rise to the level of injury or death to a child are more likely to result in medical 88 see, e.g., racial disparities in the child welfare system: oversight hearing before the comm. on the general welfare, n.y. city council 16 (oct. 31, 2019) (written testimony of david hansell, comm’r of the admin. for child. servs.), https://www1.nyc.gov/assets/acs/ pdf/testimony/2020/gwcommitteehearing.pdf [https://perma.cc/9vjf-8wbc] (describing foster care as a “necessary but last resort”); n.y.c. admin. for child. servs., foster care strategic blueprint: three-year progress report 7 (2020), https://www1.nyc.gov/ assets/acs/pdf/data-analysis/2020/fostercareblueprintfy2020.pdf [https://perma.cc/m3eltbkh] (highlighting the drop in the number of children in foster care). 89 see, e.g., nikita stewart, child abuse cases drop 51 percent. the authorities are very worried., n.y. times (aug. 7, 2020), https://www.nytimes.com/2020/06/09/nyregion/ coronavirus-nyc-child-abuse.html [https://perma.cc/l4d3-36rs]; candy woodall, as hospitals see more severe child abuse injuries during coronavirus, ‘the worst is yet to come’, usa today (may 13, 2020), https://www.usatoday.com/story/news/nation/2020/05/ 13/hospitals-seeing-more-severe-child-abuse-injuries-during-coronavirus/3116395001/ [https://perma.cc/y87u-8c4l]. 90 cf. martin guggenheim, the history and influence of the national association of counsel for children – an alternate perspective, 39 child. legal rts. j. 12, 14 (2020) (describing the emergence of “battered child syndrome”—findings by medical professionals that explained injuries to children as consequences of child abuse—as driving the creation of the modern family regulation system); lois a. weithorn, protecting children from exposure to domestic violence: the use and abuse of child maltreatment statutes, 53 hastings l. j. 1, 55–60 (2001) (tracing same history). 91 see supra notes 18–19 (discussing coding of poverty as neglect); see also supra note 26 (discussing bias among mandated reporters). 2022] an unintended abolition 19 attention and less likely to evade the purview of a mandated reporter, even during a shutdown.92 in spring 2019, the scr received nearly 5,000 reports of physical abuse, a category including “burn, fatality, fracture, choking, twisting, shaking, excessive corporal punishment, internal injuries, lacerations, bruises, welts, poisoning, noxious substances.”93 in that period, 70% of reports alleging any form of abuse were unfounded, i.e. not supported by any credible evidence.94 in the same months of 2020, during the pause, the scr received approximately 2,000 reports of physical abuse, a decrease of 60%.95 just over 75% of reports alleging any form of abuse were unfounded.96 this dramatic decrease in reports may reflect that some incidents of physical injuries to children went unnoticed and unreported once children were confined to their homes. however, the number of investigations related to child fatalities—the type of tragedy least likely to avoid public review, irrespective of stay-at-home orders—also dropped by 25% between february 2019 and june 2019 and the same period in 2020.97 further, the commissioner of acs reported that there had not been any significant changes in emergency room usage, one possible indicator of unreported incidents of child abuse.98 more broadly, he testified that there had not been any indicators of “a larger bolus of undetected charges” of child abuse.99 taken together, this data indicates that child abuse did not increase during the covid-19 pause. fewer reports were received, and among the reports that were received, fewer were substantiated, even as workers had more time to devote to each individual investigation. 92 reports by medical professionals and law enforcement—the mandatory reporters often best positioned to report physical abuse—fell by only 40%, compared to the 77% drop in educators’ reports. july 2020 flash report, supra note 18, at 28. 93 july 2019 flash report, supra note 18, at 27; july 2020 flash report, supra note 18, at 29. 94 n.y.c. admin. for child. servs., child welfare indicators quarterly report 2nd quarter 2019 (apr–jun 2019) 5–6 (2019), https://www1.nyc.gov/assets/acs/ pdf/dataanalysis/2020/cwindicatorscitycouncilreportq22019.pdf [https://perma.cc/5wt4cjky]. 95 july 2020 flash report, supra note 18, at 29. 96 n.y.c. admin. for child. servs., child welfare indicators quarterly report 2nd quarter 2020 (apr–jun 2020) 6–7 (2020), https://www1.nyc.gov/assets/acs/ pdf/dataanalysis/2020/childwelfareindicatorsreportq2.pdf [https://perma.cc/4mvl-r5d7]. 97 n.y.c admin. for child. servs., response to author’s freedom of information law request (aug. 20, 2020) (on file with author) (reporting that from february 2019 to june 2019, there were sixty-three “[c]hildren with fatality scr allegations (unique children),” including “children with roles in initial and subsequent investigation stages,” compared to forty-seven children in the same period in 2020; these numbers reflect the total number of reports received regarding child fatalities and include fatalities later determined not to be the result of parental neglect or abuse). 98 the child welfare system during covid-19: oversight hearing before the comm. on the general welfare, n.y. city council 51:00 (june 14, 2021) (testimony of david hansell, comm’r of the admin. for child. servs.), https://legistar.council.nyc.gov/ view.ashx?m=f&id=9578156&guid=ab24ebfd-8c7d-4a08-9186-923c749cd85b [https://perma.cc/b4lv-tlry] [hereinafter hansell testimony]. 99 id. 20 colum. j. race & l. f. [vol. 12:1 measured by incidences of physical abuse, the shutdown coincided with decreased child maltreatment. 2. absence of a rebound effect in fall 2020, in a respite between waves of covid-19, new york city crawled back toward normalcy: children began returning to schools, workers began returning to the field, and family court operations began normalizing.100 while the number of reports and investigations began to rise again, there was not any rebound effect, i.e. any increase in reports or investigations to compensate for a sustained period of underreporting, by any of three measures. first, even as mandated reporters returned to the field, the total number of reports remained lower than the previous year. in the final three months of 2020, the scr received 17% fewer reports than it had received in the year prior.101 by the time the city’s schools completed their staged re-opening for in-person education on september 30, 2020, a quarter of the city’s schoolchildren were attending class in person.102 following school reopenings, scr reports did creep upward but at a rate in line with the typical increase in a non-pandemic fall, rather than a more dramatic leap.103 far from showing a rebound effect from schools calling in a backlog of reports, school personnel still made 35% fewer reports than they had during the same period the previous year.104 second, the types of concerns reported did not shift from the year prior. in both 2019 and 2020, approximately 75% of reports received in the 100 n.y.c. fam. ct., covid-19 phase 4 operations summary (july 31, 2020) (on file with author); eliza shapiro & mihir zaveri, new york city becomes first big city in u.s. to reopen all its schools, n.y. times (nov. 18, 2020), https://www.nytimes.com/2020/ 10/01/nyregion/nyc-coronavirus-schools-reopen.html [https://perma.cc/8qxd-kqur]. 101 n.y.c. admin. for child. servs., flash monthly indicator report: january 2021, at 28 (2021), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flash reports/2021/01.pdf [https://perma.cc/4u9c-m6uq]. 102 eliza shapiro, only 26% of n.y.c. students attend in-person classes, far from goal, n.y. times (oct. 26, 2020), https://www.nytimes.com/2020/10/26/nyregion/nyc-schoolsattendance.html [https://perma.cc/q3rn-69m4]. 103 compare a 20% increase in reports between september 2020 and december 2020, n.y.c. admin. for child. servs., flash monthly indicator report: october 2020, at 3 (2020), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flashreports/ 2020/10.pdf [https://perma.cc/fa3a-f4f3]; n.y.c. admin. for child. servs., flash monthly indicator report: december 2020, at 3 (2020), https://www1.nyc.gov/assets/ acs/pdf/data-analysis/flashreports/2020/12.pdf [https://perma.cc/mt82-ynle] [hereinafter dec. 2020 flash report], with a 15% increase in reports between september 2019 and november 2019, n.y.c. admin. for child. servs., flash monthly indicator report: october 2019, at 3 (2019), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flash reports/2019/10.pdf [https://perma.cc/2ete-f3sd]; n.y.c. admin. for child. servs., flash monthly indicator report: december 2019, at 3 (2019), https://www1.nyc.gov/ assets/acs/pdf/data-analysis/flashreports/2019/12.pdf [https://perma.cc/mb7v-kyar], and a 27% increase in reports between september 2018 and december 2018. n.y.c. admin. for child. servs., flash monthly indicator report: october 2018, at 3 (2018), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flashreports/2018/10.pdf [https://perma. cc/mu4p-yqzj]; n.y.c. admin. for child. servs., flash monthly indicator report: december 2018, at 3 (2018), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flash reports/2018/12.pdf [https://perma.cc/rw7m-vh9e]. 104 dec. 2020 flash report, supra note 103, at 28. 2022] an unintended abolition 21 city solely relayed concerns of neglect.105 while reflective of the ongoing issue of families being reported for poverty, this is consistent with prior patterns. the pause did not, as doomsayers predicted, lead to an increase in physical abuse of children by overstressed parents. finally, the rate of substantiation of reports also remained steady through the fall. through 2019 and 2020, the rate of substantiation hovered between 35% and 37%.106 had mandated reporters returned to their surveillance positions and reported an influx of valid concerns from a backlog that had previously gone unreported, the rate of substantiation would have been higher. but that was not the case. this is in line with prior findings. every summer, when schools go on break, the number of reports to family regulation hotlines drops, but “teacher reports that do result in substantiation remain steady.”107 put differently, the reports that teachers do not make over summer months but that they might make during the school year are unlikely to constitute child maltreatment even if investigated.108 indeed, the commissioner of acs cited the steady rate of substantiation as yet another sign that cases of child neglect or abuse had not gone underreported during the shutdown.109 acs’s data from the fall reveals that children stayed as safe with less surveillance, less government intrusion, and less family separation. they stayed safe not because of the family regulation system’s presence but, rather, in its absence. this can be attributed in part to the radical re-imagining of society that was taking place at the same time, described in part ii. iii. supporting families without regulating families abolition requires that we look back and reckon with the racist history of systems like the family regulation system and that we acknowledge the ongoing purposes of such systems in the present. but by the same token, it demands that we look forward to imagine and build a more humane and democratic society, one no longer reliant on those systems to meet human needs and solve social problems.110 in the initial shutdown period, thousands of new yorkers engaged in just such a transformative project. even before the pandemic, the government failed to meet new yorkers’ material needs, and the sudden shuttering of schools, workplaces, and government offices only amplified 105 compare n.y.c. admin. for child. servs., child welfare indicators annual report 2020, at 9 (2020), https://www1.nyc.gov/assets/acs/pdf/data-analysis/2020/ citycouncilreportcy2020.pdf [https://perma.cc/5aqm-2tgs], with n.y.c. admin. for child. servs., child welfare indicators annual report 2019, at 9 (2019), https://www1.nyc.gov/assets/acs/pdf/child_welfare/2020/cwindicatorsannualcitycouncilre portcy2019.pdf [https://perma.cc/88wl-hy9h]. 106 mar. 2020 flash report, supra, note 24, at 6; n.y.c. admin. for child. servs., flash monthly indicator report: march 2021, at 6 (2021), https://www1.nyc.gov/assets/acs/pdf/data-analysis/flashreports/2021/03.pdf [https://perma.cc/s5lp-m74j]. 107 weiner, supra note 25, at 2. 108 id. 109 hansell testimony, supra note 98, at 51:00. 110 see roberts, abolition constitutionalism, supra note 3, at 7–8. 22 colum. j. race & l. f. [vol. 12:1 problems ranging from food insecurity, to housing instability, to lack of access to childcare and physical and mental health care.111 against this backdrop, mutual aid networks—built on models of solidarity, collective action, and transformative change, rather than charity, saviorism, and control—grew in every borough. meanwhile, more new yorkers received financial assistance from the government, with fewer strings attached, itself a re-envisioning of the role of government. this part describes the massive growth and work of mutual aid groups during the pause, including the tensions raised by these projects, and then concludes by briefly describing the role of government entitlements. a. mobilization of mutual aid dean spade, an organizer and legal scholar, describes mutual aid as “collective coordination to meet each other’s needs,” growing out of “an awareness that the systems we have in place are not going to meet them.”112 in fact, spade writes, those very systems “have often created the crisis or are making things worse.”113 mutual aid projects meet people’s immediate survival needs. beyond that, they build a shared understanding of the structural causes of deprivation and mobilize movements to dismantle the systems causing the harm.114 these projects stand in stark contrast to charity and government social services, programs that position rich people in and out of government as morally superior to poor people and empower the former to judge the moral worth of charity recipients and attach conditions to aid accordingly.115 rather than aiming to root out the violence of the capitalist system, charity and social services legitimize that very system, providing political cover to elites while controlling and surveilling recipients and affording minimal assistance.116 when, in the face of the covid-19 pandemic, existing charity and government systems failed to meet the basic needs of new yorkers, mutual aid projects stepped into the breach, just as they have in the face of countless past disasters worldwide.117 during the shutdown, new yorkers’ needs swelled; by mid-april 2020, one in four new yorkers was food insecure, and nearly forty percent of parents reported skipping or cutting meals for themselves to ensure they 111 michael karpman, dulce gonzalez & genevieve m. kenney, parents are struggling to provide for their families during the pandemic, urban inst., https://www.urban.org/sites/default/files/publication/102254/parents-are-struggling-toprovide-for-their-families-during-the-pandemic_1.pdf [https://perma.cc/vpm4-4kln]. 112 dean spade, mutual aid: building solidarity during this crisis (and the next) 9, 12 (2020). 113 id. 114 id. at 9, 13. 115 id. at 22. 116 id. at 24. 117 see, e.g., lucas blaise burdick, after the flood: lessons from occupy sandy, world at 1°c (sept. 13, 2017), https://worldat1c.org/after-the-flood-lessons-from-occupysandy-904c81a21c2f [https://perma.cc/tku2-yrcy]; isa rodríguez soto, mutual aid and survival as resistance in puerto rico, 52 nacla rep. americas 303 (2020); spade, supra note 113, at 3–5 (describing mutual aid projects efforts in hong kong). 2022] an unintended abolition 23 had food for their children.118 parents could not work, not only because their workplaces were closed but because in the absence of schools, they lacked childcare.119 as stressors piled up, families were even less likely to have access to mental health services.120 the family regulation system, like so many arms of the government, failed to meet new yorkers’ needs. indeed, though preventive services had been touted as a way to help poor families in need of support, the pandemic laid bare the entrenchment of these services within the larger model of family policing. as the number of reports and investigations plummeted, so too did the provision of preventive services, even as families’ needs for material support grew.121 with the government failing them, new yorkers themselves undertook the project of ensuring that all community members’ needs were met. by the end of july, there were nearly sixty mutual aid networks operating throughout the city.122 some of these groups organized through social media after the city shut down.123 but others grew out of pre-existing projects; for instance, a group in brooklyn’s flatbush neighborhood that previously fought for police accountability and against gentrification turned its attention to food distribution.124 regardless of their histories, projects espoused principles of solidarity, collective care, accountability, and racial justice.125 mutual aid projects mobilized to provide an extraordinary array of services to community members who requested aid. nearly every group organized grocery deliveries and provision of essential items like diapers, but some focused on more specialized services, like childcare for workers or mental health care and support groups.126 rather than recreating the 118 sharon lerner, “we need protein”—coronavirus pandemic deepens new york’s hunger crisis, intercept (june 16, 2020), https://theintercept.com/2020/06/16/coronavirushunger-crisis-nyc/ [https://perma.cc/p46z-8twz]. 119 see, e.g., eliza shapiro & patrick mcgeehan, big new obstacle for economic recovery: child care crisis, n.y. times (july 10, 2020), https://www.nytimes.com/2020/ 07/10/nyregion/nyc-school-daycare-reopening.html [https://perma.cc/nkm5-zj9c]. 120 azza altiraifi & nicole rapfogel, mental health care was severely inequitable, then came the coronavirus crisis, ctr. am. progress (sept. 10, 2020), https://www.americanprogress.org/article/mental-health-care-severely-inequitable-camecoronavirus-crisis/ [https://perma.cc/n895-axm7]. 121 see supra part i.b. 122 elizabeth lawrence, ‘love and solidarity’: amid coronavirus, mutual aid groups resurge in new york city, npr (july 26, 2020), https://www.npr.org/sections/healthshots/2020/07/26/895115149/love-and-solidarity-amid-coronavirus-mutual-aid-groupsresurge-in-new-york-city [https://perma.cc/5rtc-d4c2]. 123 see, e.g., overview, bed-stuy strong’s mutual aid community fund, https://ioby.org/project/bed-stuy-strong%e2%80%99s-mutual-aid-community-fund [https://perma.cc/jq64-fwq7] (describing group’s mid-march founding through slack, a messaging program). 124 #brooklynshowslove mutual aid project, equality for flatbush, https://web.archive.org/web/20211125183319/http://www.equalityforflatbush.org/%20brookl yn-shows-love-mutual-aid-project/ [https://perma.cc/c892-z7sz]. 125 see, e.g., id.; mission and guiding principles, crown heights mutual aid, https://crownheightsmutualaid.com/mission-and-guiding-principles/ [https://perma.cc/w3 fl-tjgt]; lakshmi gandi, south asian american activism must go beyond viral stories, advocates say, nbc news (june 12, 2020), https://www.nbcnews.com/news/asian-america/ south-asian-american-activism-must-go-beyond-viral-stories-advocates-n1230596 [https:// perma.cc/psj2-ycyj] (quoting founder of bronx mutual aid network). 126 workers need childcare, https://web.archive.org/web/20200524070452/ https://www.workersneedchildcare.org/; about the network, nyc covid care network, 24 colum. j. race & l. f. [vol. 12:1 exacting intake procedures required by charities and government social services, groups kept their barriers for entry low, requiring only that community members complete online request forms or call intake lines, and removing eligibility requirements that judged moral worthiness.127 while mutual aid was by no means a novel concept in the city, the rapid expansion of mutual aid projects was breathtaking. bed stuy strong, for instance, began in brooklyn in march 2020, and had built a network of 2,700 volunteers by the end of its first month. 128 in neighboring crown heights, crown heights mutual aid made 1,300 grocery deliveries between march 2020 and may 2020 alone.129 across the city, mutual aid groups pooled and redistributed hundreds of thousands of dollars through the work of thousands of volunteers.130 this rapid growth brought with it some stumbles, particularly for newly formed groups. while groups like #brooklynshowlove in flatbush built on decades of community organizing, newer groups—many populated by the same white, affluent people who are displacing poorer black and brown new yorkers from their homes through gentrification—at times displayed the same attitudes of saviorism and the same hierarchical, exclusionary decision-making that plague charity and government services.131 for instance, controversy erupted in the crown heights mutual aid group, when it unveiled a community fridge at an apartment building on the very day that building tenants were memorializing a neighbor who had recently been gunned down.132 residents had not been consulted about the placement of the fridge. and they were not comforted by organizers’ assurances that the building’s landlord approved of the fridge because residents had been engaged in a years-long dispute with that same landlord over deplorable housing conditions.133 this tension reflected a common reality: mutual aid projects can easily “slip into some of the wellworn grooves” of the charity model if organizers do not deeply examine their principles.134 https://nyccovidcare.org/about [https://perma.cc/gy6x-h8b2]; rachel holliday smith & claudia irizarry aponte, evolving in covid crisis, nyc mutual aid groups head into 2021 with tablets, toys — and diapers, the city (jan. 4, 2021), https://www.thecity.nyc/ life/2021/1/4/22202979/nyc-mutual-aid-groups-covid-head-into-2021-with-expanded-mission [https://perma.cc/d4dw-n2ad]. 127 see, e.g., request a delivery, invisible hands, https://invisiblehandsdeliver.org/ request [https://perma.cc/dj7m-pxzy]. 128 jessica mckenzie, bed-stuy strong: scaling mutual aid during covid-19, civic hall (apr. 16, 2020), https://web.archive.org/web/20210710190031/https://civic hall.org/civicist/bed-stuy-strong-mutual-aid/. 129 cmha updates: may 21, 2020, crown heights mutual aid, https://us18. campaign-archive.com/?u=4fe6ce4b9bcc1bbfbe2904356&id=551556dda7 [https://perma.cc/ 75j5-42xm]. 130 see, e.g., smith & aponte, supra note 126; bed-stuy strong’s mutual aid community fund, ioby, https://ioby.org/project/bed-stuy-strong%e2%80%99s-mutual-aidcommunity-fund [https://perma.cc/d4kc-pvlc]. 131 spade, supra note 112, at 45. 132 crown heights mutual aid, facebook (may 12, 2020) (relevant posts on file with author). 133 id. 134 spade, supra note 112, at 45. 2022] an unintended abolition 25 these missteps should not be ignored. but nor should they distract from the radical project under way. mutual aid networks undertook the project of creating a more democratic and humane society. they rejected the dominant model, under which families must “earn” support by proving their worthiness and face the loss of their children if they do not adhere to outsiders’ visions of what they “should” be doing. instead, under the mutual aid model, community members mobilized to provide support for families— food, diapers, mental health services, and childcare—premised on the basic understanding that all humans deserve support. b. government support without government control together with the increase in mutual aid came a rare influx of government aid with few strings attached. the cares act, passed in early april 2020, provided a one-time stimulus payment of $1,200 per adult for individuals earning less than $75,000 annually, with an additional $500 payment for each child under the age of seventeen, and an extra $600 per week in unemployment benefits, through the end of july 2020.135 together, these measures were projected to transfer $500 billion from the government to the people in 2020, more than the total amount of all income transfers outside retirement programs in 2019.136 in some ways, the cares act precisely exemplified the aid model against which mutual aid stands. it established a hierarchy of deservingness, excluding undocumented immigrants and their family members; it required that anyone who had not filed taxes the previous year jump through additional hoops to claim their stimulus checks; and it served to prop up the legitimacy and stability of the capitalist system, by providing minimal payments designed to “stimulate” the economy rather than enacting broader, longer-lasting changes that would have allowed people to meet their needs on an ongoing basis and stay safe for the duration of the pandemic.137 but in other ways, these new entitlements showed the possibility of a world in which the government acts to meet people’s survival needs without requiring that recipients prove their worthiness, complete programs or undergo drug tests, endure stigmatization, or use funds only on limited, approved expenses. empowered to spend their funds as they saw fit, people receiving stimulus funds increased their spending on food, 135 coronavirus aid, relief, and economic security (cares) act, pub. l. no. 116– 136, 134 stat. 281 (2020). 136 zachary parolin, megan a. curran & christopher wimer, the cares act and poverty in the covid-19 crisis, ctr. on poverty & social pol’y (june 21, 2020), https://static1.squarespace.com/static/5743308460b5e922a25a6dc7/t/5eefa3463153d0544b7f 08b4/1592763209062/forecasting-poverty-estimates-covid19-cares-act-cpsp-2020.pdf [https://perma.cc/7h79-bmv6]. 137 see, e.g., cyierra roldan, 1.2 million new yorkers excluded from the cares act, fiscal policy inst. (may 19, 2020), https://fiscalpolicy.org/1-2-million-new-yorkersexcluded-from-the-cares-act [https://perma.cc/5zwp-s3bt]; stephen roll & michal grinstein-weiss, did cares act benefits reach vulnerable americans? evidence from a national survey, brookings inst. (aug. 25, 2020), https://www.brookings.edu/research/didcares-act-benefits-reach-vulnerable-americans-evidence-from-a-national-survey/ [https://perma.cc/mrt8-32cj] (finding that black and hispanic households, part-time workers, those without bank accounts, and those with very low income were more likely to experience delays in receiving stimulus payments). 26 colum. j. race & l. f. [vol. 12:1 household items, and bill payments, including rent—that is, survival needs.138 with the first stimulus payment, 87% of adults in households with incomes of $25,000 or less reported that they used their stimulus funds to meet their expenses.139 among adults who spent their stimulus payments, 80% used at least a portion on food, 78% used it on rent, mortgage, and/or utilities, and 58% spent it on household supplies and personal care products.140 meanwhile, a much smaller share, 8%, reported spending on tvs, electronics, furniture, appliances, or recreational items.141 this usage defies the decades-long narrative that elites need to direct the spending of poor people, to protect them, and society, from irresponsible, frivolous spending. as people began receiving checks, mutual aid projects mobilized, encouraging those who could afford it to turn their stimulus checks over to more vulnerable community members, and thousands answered the call.142 meanwhile, the higher unemployment payments did not discourage people from re-entering the labor market and instead allowed workers to find jobs that suited their expertise and skills.143 overall, rates of poverty fell in the three months following the passage of the cares act.144 like the deconstruction of the family regulation system, this largescale government entitlement program proved temporary and inadequate.145 but it also proved the possibility of a version of government 138 scott r. baker et al., here’s how americans are spending their stimulus checks, kellogg insight (may 5, 2020) https://insight.kellogg.northwestern.edu/article/ stimulus-checks-spending-data-2020-coronavirus-covid [https://perma.cc/542t-8v9x]. 139 daniel perez lopez & charles adam bee, how are americans using their stimulus payments?, u.s. census bureau (june 24, 2020), https://www.census.gov/library/ stories/2020/06/how-are-americans-using-their-stimulus-payments.html [https://perma.cc/apf7-l8uf]. 140 id. 141 id. 142 christine chung, community groups ask new yorkers to pledge fed stimulus checks to vulnerable, the city (apr. 14, 2020), https://www.thecity.nyc/economy/2020/ 4/14/21247102/community-groups-ask-new-yorkers-to-pledge-fed-stimulus-checks-tovulnerable [https://perma.cc/48rs-dgbx]; see also #sharemycheck, resource generation, https://web.archive.org/web/20210118014427/https://www.sharemycheck.org/#page. 143 see generally lucas finamor & dana scott, labor market trends and unemployment insurance generosity during the pandemic, 199 econ. letters 5 (2021). 144 jeehoon han, bruce d. meyer & james x. sullivan, income and poverty in the covid-19 pandemic 10–11 (nat’l bureau of econ. rsch., working paper no. 27729, 2020), https://www.nber.org/system/files/working_papers/w27729/w27729.pdf [https://perm a.cc/ygh7-drtq]. 145 by september 2021, increased federal unemployment benefits had expired, as had the national moratorium on evictions. matthew haag & nicole hong, 800,000 new yorkers just lost federal unemployment benefits, n.y. times (sept. 7, 2021), https://www.nytimes.com/2021/09/07/nyregion/nyc-federal-unemployment-benefits.html [https://perma.cc/5q49-aasf]; rachel siegal, eviction moratorium expires as renters face rising covid cases and lack of aid, wash. post (july 31, 2021), https://www.washington post.com/business/2021/07/31/eviction-moratorium-expire-cdc/ [https://perma.cc/t8fqbttk]. further, half a year had elapsed since the government began issuing the last round of stimulus payments. third economic impact payment, irs, https://www.irs.gov/corona virus/third-economic-impact-payment [https://perma.cc/x2vy-9rzs]. even as these benefits expired, the pandemic raged on; indeed, the expiration of these benefits coincided with the surge of the delta variant of covid. apoorva mandavilli, benjamin mueller & shalini venugopal bhagat, when will the delta surge end?, n.y. times (oct. 1, 2021), 2022] an unintended abolition 27 too often dismissed as fantasy. society is accustomed, spade writes, to a binary choice between a government that “denies the disaster’s significance and abandons people to its devastation,” or a government that “responds with inadequate aid that comes with enhanced policing, surveillance, militarization, and wealth transfers to the top.”146 so inured are we to this binary that it can feel impossible to imagine any choices beyond it.147 but during the shutdown, as woefully inadequate systems that provide aid at the cost of human dignity receded, new yorkers envisioned and enacted a radical new society, in which government funds represented freedom rather than further oppression and community members collectively coordinated to meet their own survival needs and to mobilize for change. iv. conclusion as the covid-19 pandemic has stretched on, it can feel impossible to find signs of hope within it. it has killed, as of this writing, nearly 800,000 americans, with black, native, and latinx communities disproportionately bearing the brunt of those tragic and needless deaths even as they are disproportionately called to the frontlines as “essential workers.” it has spurred the largest economic crisis since the great depression, leaving millions of families without sufficient food and on the brink of homelessness; and it has kept thousands of children nationwide from seeing their parents as they wait out the pandemic in foster care. were that not enough, police have continued to murder black americans with impunity, those protesting murders by police have themselves been beaten and prosecuted, and the former president cheered on police while denying the validity of a democratic election and inciting an insurrection. but this death and destruction—the rupturing of the interlocking systems of oppression that power this country—have, too, created a window into a different world, one in which people are not controlled, regulated, and destroyed by the government in the service of the capitalist system, but instead in which people collectively aid each other to ensure not just that community members have what they need to survive but to survive safely and to thrive. new york’s shutdown forced a temporary but radical reduction of the family regulation system, nearly halving the number of reports, investigations, and family separations, reducing surveillance of families in their schools and in their homes, and removing not only the intrusion but also the limited support of voluntary preventive services. rather than endangering children, this shutdown protected them: rates of substantiated abuse dipped, rates of substantiated neglect remained unchanged, and children stayed sheltered with their families and in their communities rather than enduring the trauma of a separation, much less a separation with no family visitation. these families stayed safely together not because of the family regulation system but because of its absence. in the midst of the nonstop trauma of 2020, community members worked for and with each other, providing their neighbors food, diapers, https://www.nytimes.com/2021/09/01/health/covid-delta-us-britain.html [https://perma.cc/ et8j-kuap]. 146 spade, supra note 112, at 39. 147 id. 28 colum. j. race & l. f. [vol. 12:1 childcare, and mental health services, and redistributing government wealth. under the drudgery and daily struggle of the capitalist system, it can be difficult to find the space or the energy to imagine, let alone build, a more humane and democratic society. the covid-19 crisis, though, made that easier. we need not imagine, from whole cloth, how we might keep children safe in the absence of the family regulation system. nor need we continue to speculate as to how we might address the child poverty that drives neglect reports without resorting to the violence of family separations. we have the answers. we can envision a world in which we address child poverty and child safety by providing families the monetary support they need, without strings attached, and by building robust community support networks, governed by principles of solidarity and collective caretaking rather than punishment and moral judgment. we can envision this world because, for a short time in 2020, we lived it. i. introduction ii. putting the family regulation system on pause a. new limits on the family regulation system 1. the closure of schools 2. guidance to child protective specialists 3. guidance to contracted agencies 4. limitations on the reach of family court b. effect of march directives 1. decrease in reports and investigations 2. decrease in family separations c. sustained safety 1. fall in child abuse 2. absence of a rebound effect iii. supporting families without regulating families a. mobilization of mutual aid b. government support without government control iv. conclusion columbia journal of race and law vol. 11 july 2021 no. 3 editor’s note growth in unprecedented times nicolás quaid galván our journal has published in unprecedented times. this year, we have gone to the streets to declare what should be a universal truth: black lives matter. we have chanted the names of unarmed black persons who have been killed by the state. this time, our demands for justice were not lost. in fact, a form of justice was delivered by a jury in minnesota. this jury found derek chauvin guilty for the murder of george floyd. this year, we’ve seen the united states capitol sacked. we’ve seen the impact of propaganda, created and spread by those nefariously continuing to believe that the presidential election has been stolen. we have seen public officials—those sworn to protect the constitution against both foreign and domestic threats—flirt with, fail to condemn, and endorse white supremacy, authoritarianism, xenophobia, and hate. all of this hidden under the guise of “states’ rights,” “liberty,” “small government,” and “freedom.” we’ve also experienced the new reality of living in a global pandemic. it completely changed how we interacted with each other. for example, while chanting in the streets, we wore something novel to many: a face mask. some of us became caretakers during the pandemic. and over 650,000 american  editor-in-chief, columbia journal of race and law, volume 11. j.d. columbia law school, 2021. b.f.a. and b.a., the new school, 2016. i wholeheartedly thank the entire board and staff of our journal. your drive and commitment to our journal gives me strength. you are essential. i am also thankful for our symposium co-chairs, professor jane m. spinak and professor nancy polikoff. your vision, support, and work has resulted in a successful three-day symposium, and this fifteen-piece issue you have in your hands—the largest issue in the journal’s history. you have been integral to our journal’s success. i am especially grateful for the managing editors, vinay patel, jennifer romero, and jacob bryce elkin. thank you for accompanying me on this journey. leading the journal with you has been the honor of my time at columbia law school. finally, i am grateful for my partner, serengeti. i could not have made it through this year, and law school, without your unyielding support and love. 422 colum. j. race & l. [vol. 11:421 families lost a loved one. i lost my tío george antonio silva,1 a pillar of our family. two managing editors and several other members of our board also lost a family member this year. as vaccinations rates rise, many sense a return to normalcy. yet, for others, going back to “normal” can never truly mean a return to our pre-pandemic lives. the pandemic also placed a microscope on existing inequalities. in line with less access to health care and lower quality of care, black and latinx people have died at disproportionate rates from covid-19 compared to any other group.2 in our own new york city, black and latinx folks experienced death rates twice as high as white communities.3 we’ve also seen a resurgence of hate crimes, particularly against the asian and pacific islander community. inequalities exposed by the pandemic are also intersectional. at the peak of the pandemic, we’ve seen how the majority of “essential,” front-line workers were persons of color.4 our society and institutions depend on the labor of the essential: our health care workers; our grocery, convenience, and drug store workers; our crop-pickers, agricultural, trucking, and logistical workers; our postal and delivery workers; our public transit workers; our janitors and building staff; our child and social services workers; and many of those in the “gig” economy. we depend on these workers. and when lawmakers delineated different types of workers, they designated their work as “essential.” despite this classification, many of these workers were paid less than a living-wage. even now, after not receiving a fair base compensation to begin with, many have not received 1 may his soul rest in peace. thank you for all you’ve taught me, and so many others. 2 carla k. johnson et al., as us covid-19 death toll nears 600,000, racial gaps persist, ap news, https://apnews.com/article/baltimore-californiacoronavirus-pandemic-race-and-ethnicity-health-341950a902affc651dc268dba 6d83264 [https://perma.cc/q54t-wr6s] (june 14, 2021). 3 jeffery c. mays & andy newman, virus is twice as deadly for black and latino people than whites in n.y.c., n.y. times (june 26, 2020), https:// www.nytimes.com/2020/04/08/nyregion/coronavirus-race-deaths.html [https:// perma.cc/3q2m-jrjw]. 4 catherine powell, color of covid and gender of covid: essential workers, not disposable people, 33 yale j.l. & feminism 1, 10–19 (2021). 2021] editor's note 423 hazard pay for their increased, and necessary, exposure to the deadly virus.5 the columbia journal of race and law experienced this precarious reality in the context of a virtual reality. we could not ignore the world around us. columbia law school became a matrix of zoom calls instead of our new york city campus; a grid of faces and superimposed backgrounds instead of the favorite chair in our professor’s office; an empty room in a different city instead of a lecture hall. studying, networking, outlining, internships, teaching assistantships, and sustaining our journal all became an isolated series of events. working from home blurred the distinction between relaxation and productivity. for many of us, the dining room replaced the law school library. and for some of us, we could not find silence while at home. our relationship with columbia law school and our journal changed. reading cases seemed irrelevant as we saw the death toll rise at home and abroad. month after month in front of our screens and tvs, being separated by much more than sixfeet became demoralizing, even paralyzing. for some of us, caretaker responsibilities took precedence over our coursework, and even our journal responsibilities. all i wanted to do was to spend time with my family as we wrestled with the sudden loss of tío george. the demands of the legal profession did not change in these unprecedented times. our law school exams were not postponed. our legal externships and employers expected a work product. even our journal was complicit in these continued demands as we continued to publish. these demands tested our abilities. it tested our capacities. at one point, i even feared our ability to publish. i feared for the future of our journal. yet, against these odds, we persisted. like those who came before us—our parents and grandparents who have worked their entire lives so we could attend an ivy-league legal institution—we persisted. and we succeeded. 5 molly kinder et al., the covid-19 hazard continues, but the hazard pay does not: why america’s essential workers need a raise, brookings inst. (oct. 29, 2020), https://www.brookings.edu/research/the-covid-19-hazardcontinues-but-the-hazard-pay-does-not-why-americas-frontline-workers-needa-raise [https://perma.cc/rz88-w882]. 424 colum. j. race & l. [vol. 11:421 this year, we have published more than any other volume of the columbia journal of race and lawx. this year, we published twenty-six pieces, resulting in over 1,000 pages of original scholarship. this was only possible due to the commitment of our editorial board and staff. our masthead was also the largest in the journal’s history, comprising over fifty students, and spanning over three graduating classes of students. among our achievements this year is a mention in time magazine.6 we have also created an entirely new publication: the columbia journal of race and law forum—our exclusively online companion to our traditional, printed pieces. the forum, unlike our traditional print issues, is dedicated to shorter, more timely pieces, and isn’t constrained by the same financial and logistical demands of print scholarship. our first issue proceeded with four pieces. first, professor john a. powell and eloy toppin jr., examines the “othering” that fuels the global rise of authoritarianism and proposes a “society of belonging” to combat racism.7 second, professor michelle foster and timnah rachel baker provide the first analysis of article 1(3) of the international convention on the elimination of all forms of racial discrimination and its consistency with the jus cogens prohibition on racial discrimination.8 then, in my note, i analyze the supreme court’s doctrinal methodologies of evaluating constitutional harm, and argue that what i call the “cumulative harm framework” is necessary to combat second-generation discrimination.9 and, jacob elkin, our managing online and symposium editor, argues that a public trust duty imposed by the pennsylvania supreme court should prohibit state actors from continuing to 6 chris gottlieb, black families are outraged about family separation within the u.s. it's time to listen to them, time (mar. 17, 2021), https://time.com/5946929/child-welfare-black-families [https://perma.cc/dfd566st]. 7 john a. powell & eloy toppin, jr., uprooting authoritarianism: deconstructing the stories behind narrow identities and building a society of belonging, 11 colum. j. race & l. 1 (2021). 8 michelle foster & timnah rachel baker, racial discrimination in nationality laws: a doctrinal blind spot of international law?, 11 colum. j. race & l. 83 (2021). 9 nicolás quaid galván, note, adopting the cumulative harm framework to address second-generation discrimination, 11 colum. j. race l. 147 (2021). 2021] editor's note 425 place environmental hazards in communities that already bear disproportionate environmental burdens.10 our second issue contained three pieces. it included the longest individual piece in our journal’s history. in 103 pages, david h. gans provides an in-depth historical and legislative account of the formation of the 14th amendment, arguing that current supreme court doctrine falls egregiously short of the original intent of the amendment.11 next, avanthi cole, in her note, demonstrates how the uniform partition of heirs property act, was designed to assist the “wealthy and legally savvy” in resolving issues with “heirs property,” but does not provide the tools to help black and low-income communities.12 finally, alyson merlin, our symposium editor, argues that unenforced but unabrogated treaty rights between native americans and the federal government may serve as a mechanism for native nations to assert a greater role in the decision-making process regarding massive energy projects, such as oil pipelines.13 our newly created forum was also home to multiple pieces. there, vinay patel, our managing articles editor, demonstrates that the fbi’s new, facially neutral classification of “racially motivated violent extremism” is a façade to surveille black lives matter protestors, and should not survive a challenge under the fourteen amendment.14 we also used the forum to memorialize our keynote and closing remarks of volume 10’s symposium, entitled how the law underdeveloped racial minorities in the united states, which was postponed due to the pandemic and hosted by volume 11. 10 jacob elkin, note, environmental justice and pennsylvania’s environmental rights amendment: applying the duty of impartiality to discriminatory siting, 11 colum. j. race & l. 195 (2021). 11 david h. gans, “we do not want to be hunted”: the right to be secure and our constitutional story of race and policing, 11 colum. j. race & l. 239 (2021). 12 avanthi cole, note, for the “wealthy and legally savvy”: the weaknesses of the uniform partition of heirs property act as applied to lowincome black heirs property owners, 11 colum. j. race & l. 342 (2021). 13 alyson merlin, note, unenforced promises: treaty rights as a mechanism to address the impact of energy projects near tribal lands, 11 colum. j. race & l. 373 (2021). 14 vinay patel, comment, racially motivated spying pretext: challenging the fbi’s new regime of racialized surveillance, 11 colum. j. race & l.f. 1 (2021). 426 colum. j. race & l. [vol. 11:421 this issue is unique. in this first of two symposium issues, we celebrate the 20th anniversary of professor dorothy roberts’ shattered bonds: the color of child welfare.15 professor roberts gave our keynote, which is also memorialized here.16 in this issue and at our actual symposium,17 we call for the abolition of the child welfare system, more appropriately called the family regulation system,18 and asked our participants and authors to reimagine child wellbeing. the issue’s foreword provides a thorough summary of the thirteen subsequent pieces within this issue and two pieces published online in the forum.19 this issue and our symposium was only possible through the devotion of professors jane m. spinak and nancy polikoff, our symposium co-chairs. our journal is grateful for your commitment, time, and energy. we cannot thank you enough. our journal inhabits a unique space at columbia law school. we are exclusively devoted to combating racial inequalities, the only legal journal to do so at columbia. because of purpose, we cannot, and will not, be oblivious to the world outside morningside heights. we will continue to ask the difficult questions, and advance our cause. i, and the editorial board and staff of the columbia journal of race and law, thank you for joining us. we thank you for engaging with the ideas of our authors. we hope this discourse helps, and that soon enough, these words ring true: “equal justice under law.” with gratitude, y en solidaridad, nicolás quaid galván editor-in-chief volume 11 15 dorothy roberts, shattered bonds: the color of child welfare (2001). 16 dorothy roberts, keynote, how i became a family-policing abolitionist, 11 colum. j. race & l. 455 (2021). 17 columbia journal of race and law, strengthened bonds symposium introductions, keynote, and responses, youtube, (july 13, 2021), https://www. youtube.com/watch?v=nmzffrse-b8 [https://perma.cc/c6xw-lg84]. 18 nancy d. polikoff & jane m. spinak, foreword: strengthened bonds: abolishing the child welfare system and re-envisioning child well-being, 11 colum. j. race & l. 427 (2021). 19 id. microsoft word cjrl gonzález berdecía f16 eic v3.docx puerto rico before the supreme court of the united states: constitutional colonialism in action andrés gonzález berdecía* —“is it essential to your case that we recognize puerto rico as a sovereign?” —“it is not essential that you recognize puerto rico as a sovereign with a capital ‘s’.”1 the united states supreme court’s october 2015 term will go down in history as the most significant one for puerto rico-united states relations in more than a century. by opting to address the issues presented in puerto rico v. sánchez valle, a constitutional case arising from the commonwealth courts, and puerto rico v. franklin california tax-free trust, a statutory case arising from the united states district court for the district of puerto rico, the answer to which directly related to one’s understanding of the nature of the political status between puerto rico and the united states, the united states supreme court set in motion a series of unprecedented actions by the commonwealth government, the president, congress, commonwealth and federal judges, and * associate, sepulvado & maldonado, psc.; b.a., university of puerto rico, 2008; j.d., university of puerto rico, 2011; ll.m., columbia law school, 2014; united states supreme court fellow, naag center for supreme court advocacy, spring 2016. the views and opinions expressed herein do not necessarily state or reflect those of the author’s employer. the author would like to extend his gratitude to the editorial staff of the columbia journal of race and law for their helpful editing contributions. the author would also like to thank attorney alejandro suárez vincenty for his valuable input, professor ernesto l. chiesa aponte for his mentorship over the years, and attorney aura colón solá, the author’s wife, for her support throughout this and many other endeavors. 1 transcript of oral argument at 6, puerto rico v. sánchez valle, 136 s. ct. 1863 (2016) (no. 15-108). no. 2:80] puerto rico before the u.s. supreme court 81 civil society in general—both in san juan and washington, d.c.—that illustrate, now more clearly than ever, why puerto rico legally remains a 21st century colony of the united states. part ii of this article will discuss puerto rico v. sánchez valle, setting forth the underlying facts of the case, the legal issues presented, what puerto rico courts held, and what the united states supreme court ultimately decided. part iii will focus on puerto rico v. franklin california tax free trust, following the same basic structure. part iv will illustrate how both cases reveal unequivocally that the united states’ legal treatment of puerto rico amounts to pure colonialism. finally, part v will conclude by analyzing whether the supreme court of the united states can, or should, take action to fix this reality. i. introduction .............................................................. 82 ii. puerto rico v. sánchez valle: the commonwealth’s plea for [s]overeignty ............. 85 a. life before sánchez valle ..................................... 85 b. the case in puerto rico ........................................ 94 1. the court of first instance ............................. 94 2. the court of appeals ........................................ 97 3. the supreme court of puerto rico .................. 99 c. the case before the united states supreme court ..................................................................... 108 iii. puerto rico v. franklin california tax-free trust: the commonwealth’s plea to go bankrupt ................................................................... 113 a. the commonwealth’s economic struggle .......... 113 b. the case in federal court .................................. 117 1. the district court .......................................... 117 2. the first circuit ............................................. 119 c. the case before the united states supreme court ..................................................................... 124 iv. solidifying constitutional colonialism: the interplay between legal fiction and social reality ....................................................................... 128 82 columbia journal of race and law [vol. 7:1 v. breaking the chain: the role of the united states supreme court ............................................ 141 vi. conclusion ............................................................... 148 i. introduction “this is the most important case on the constitutional relationship between puerto rico and the united states since the establishment of the commonwealth in 1952.”2 so began the petition for writ of certiorari that the commonwealth of puerto rico filed before the supreme court of the united states in july 2015 in commonwealth of puerto rico v. luis m. sánchez valle to decide whether the commonwealth of puerto rico and the federal government are separate sovereigns for purposes of the double jeopardy clause of the united states constitution. just one month later, puerto rico asked the court to review a second case, commonwealth of puerto rico v. franklin california tax-free trust, to decide whether chapter 9 of the federal bankruptcy code preempts a puerto rico statute creating a mechanism for the commonwealth’s public utilities to restructure their debts, this time stating that “[t]his case involves puerto rico’s ability to respond to the most acute fiscal crisis in its history.”3 indeed, if sánchez valle is the most important case on the constitutional relationship between puerto rico and the united states, then franklin california tax-free trust may very well be the most important case on the statutory relationship between them. uncharacteristically, the court granted both petitions, projecting the october 2015 term as the most significant one for puerto rico in more than a century.4 2 petition for writ of certiorari at 1, puerto rico v. sánchez valle, 136 s. ct. 1863 (2016) (no. 15-108). 3 petition for writ of certiorari at 1, puerto rico v. franklin cal. tax-free trust, 136 s. ct. 1938 (2016) (no. 15-233). 4 in march 2016, the court granted certiorari in a third case arising from puerto rico, this time a federal criminal prosecution. in bravofernández v. united states, 136 s. ct. 1491 (2016) (no. 15-537), a unanimous court held that the the collateral estoppel prong of the double no. 2:80] puerto rico before the u.s. supreme court 83 since the commonwealth’s creation in 1952, puerto ricans have been deeply divided as to what the nature of the relationship between puerto rico and the united states actually is and what it should be. for more than six decades, independence and statehood supporters have argued that the commonwealth and its constitution did not alter puerto rico’s constitutional status as an unincorporated territory of the united states subject to congress’s plenary powers, which, everyone agrees, is nothing more than a colonial relationship. commonwealth supporters have fervently opposed such criticism, instead contending that puerto rico “decolonized” itself in 1952 through the enactment of the constitution, when it became the sui generis entity that the world knows as the estado libre asociado, supposedly created with the free consent of the sovereign people of puerto rico as a compact of association with the united states. because of this issue’s obvious significance to the very political and legal structure of the island’s government, puerto ricans have organized themselves electorally mostly around each particular group’s preferred position on the status question. the same two parties always alternate power: those who favor the annexation of puerto rico as a full state of the union vote mostly for the new progressive party (npp), while those who favor the commonwealth vote mostly for the popular democratic party (pdp). and most people who favor independence vote—always losing—for the puerto rican independence party (pip).5 though other parties have sprung up throughout the years attempting to break this jeopardy clause does not bar the government from retrying defendants acquitted on some counts but inconsistently convicted on other counts that were later vacated based on instructional error. 5 brief history of elections in puerto rico, puerto rico encyclopedia, http://www.enciclopediapr.org/ing/article.cfm?ref=09012602 [http://perma.cc/5k2g-zbsn]. for many historically complex reasons, it is fair to say that fewer independence supporters vote “as a bloc” for the puerto rican independence party (pip) than do commonwealth supporters for the pdp or statehood supporters for the npp. 84 columbia journal of race and law [vol. 7:1 mold, none have succeeded electorally or lasted for a significant period of time.6 for better or worse, each party’s members’ ideological differences with regard to economic and social policies take a backseat to their common perspective on the status question. this divide extends far beyond the political electoral arena; it permeates puerto rican society in general and arouses almost religious-like fervor. only if one is aware of this social dynamic can one understand the fervor with which the puerto rican judges involved in both cases expressed their particular views or why some of them referred to puerto rico as their nation while others referred to the united states as theirs. only then can one understand why these are the most important puerto rico cases that the united states supreme court has decided since the creation of the commonwealth, and probably since the island became a united states territory in 1898. the court has finally ended the six-decade old political debate. the commonwealth lost. much will be said about these cases in the upcoming years, especially about whether the court got them right. that, however, is not the purpose of this article. though i will discuss them thoroughly, this article’s true intention is to illustrate how these two cases dispelled any lingering doubts as to the colonial nature of the relationship between puerto rico and the united states. part ii of this article will discuss puerto rico v. sánchez valle, setting forth the underlying facts of the case, the legal issues presented, what puerto rico courts held, and what the supreme court ultimately decided. part iii will focus on puerto rico v. franklin california tax free trust. part iv will illustrate how both cases reveal unequivocally that the united states’ legal treatment of puerto rico amounts to pure colonialism. part v will conclude by 6 id. no. 2:80] puerto rico before the u.s. supreme court 85 analyzing whether the supreme court of the united states can, or should, fix this reality. ii. puerto rico v. sánchez valle: the commonwealth’s plea for [s]overeignty a. life before sánchez valle almost one hundred years ago, a man named vito lanza was charged in federal court with possessing, manufacturing, and transporting intoxicating liquor7 in violation of the national prohibition act, commonly known as the volstead act.8 because he had already been convicted in washington state court of possessing, manufacturing, and transporting the same liquor, lanza argued in federal court that two punishments for the same act, one under the federal law and one under state law, violated the double jeopardy clause of the fifth amendment.9 the district court agreed. but the supreme court overruled. speaking for a unanimous court in united states v. lanza, chief justice taft concluded that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of 7 united states v. lanza, 260 u.s. 377, 378 (1922). 8 national prohibition act of 1919, pub. l. no. 66-66, 41 stat. 305 (repealed 1933). 9 lanza, 260 u.s. at 379. the fifth amendment provides that [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. u.s. const. amend. v (emphasis added). 86 columbia journal of race and law [vol. 7:1 both and may be punished by each.”10 therefore, the court held, lanza “committed two different offenses by the same act, and a conviction by a court of washington of the offense against that state is not a conviction of the different offense against the united states, and so is not double jeopardy.”11 thus, the “dual sovereignty” doctrine was born.12 though the court settled the double jeopardy issue with regard to federal-state relations, the question as to its application in puerto rico after the adoption of the constitution of the commonwealth in 1952 remained unaddressed. that changed in 1987 when two former police officers were convicted in the united states district court for the district of puerto rico of civil rights violations for assaulting and beating three men, after having been previously convicted in commonwealth courts for the same acts. in united states v. lópez andino,13 the court of appeals for the first circuit rejected appellants’ claim that puerto rico and the united states were “the same sovereign” for double jeopardy purposes. the first circuit straightforwardly applied lanza to puerto rico, concluding that “[a]lthough the legal relationship between puerto rico and the united states is far from clear and fraught with controversy, it is established that puerto rico is to be treated as a state for purposes of the [d]ouble [j]eopardy [c]lause.”14 10 lanza, 260 u.s. at 382 (emphasis added). 11 id. 12 even though lanza predated the world of selective incorporation of the bill of rights through the due process clause of the fourteenth amendment (“the fifth amendment, like all other guaranties in the first eight amendments, applies only to proceedings by the federal government,” id.), its holding, that the double jeopardy clause applied to the states, remained intact after the supreme court decided benton v. maryland, 395 u.s. 784 (1969) (overruling palko v. connecticut, 302 u.s. 319 (1937)). see also heath v. alabama, 474 u.s. 82 (1985). 13 united states v. lópez andino, 831 f.2d 1164, 1168 (1st cir. 1987). 14 id. no. 2:80] puerto rico before the u.s. supreme court 87 puerto rican circuit judge juan r. torruella concurred. he agreed with the rest of the panel that the federal prosecution there was not barred by the double jeopardy clause. however, judge torruella believed that the majority’s discussion regarding puerto rico’s sovereignty for purposes of double jeopardy was both unnecessary to decide the case and erroneous as a matter of law because “puerto rico is constitutionally a territory, thus lacking that separate sovereignty which would allow consecutive puerto rico/federal prosecutions for what would otherwise be the same offenses.”15 the supreme court of puerto rico took on this question just one year later in puerto rico v. castro garcía.16 unsurprisingly, the court sided with the first circuit majority in lópez andino, concluding that since 1952 the island’s political power derived from the consent and will of the people of puerto rico. the majority rejected the claim that the court was bound by puerto rico v. shell co.,17 where the united states supreme court stated that, given the territorial condition of puerto rico, its statutes stemmed from one sovereign power, i.e., the federal power. instead, the majority concluded that “the pronouncements contained in dictum at that time, 1937, are currently devoid of any legal basis and should be left to rest in peace.”18 the supreme court of puerto rico also relied on united states v. wheeler,19 where the united states supreme court held that the navajo tribe, although under the control of congress, is a sovereign independent of the federal government for purposes of the dual sovereignty doctrine because its power to prosecute the members of the tribe emanates from its “primeval sovereignty.”20 15 id. at 1172. 16 puerto rico v. castro garcía, 20 p.r. offic. trans. 775, 823 (1988). 17 puerto rico v. shell co., 302 u.s. 253 (1937). 18 castro garcía, 20 p.r. offic. trans. at 799. 19 id. at 800. 20 united states v. wheeler, 435 u.s. 313, 325 (1978). 88 columbia journal of race and law [vol. 7:1 justice negrón garcía issued a short concurring opinion,21 stating that: it is an historical fact that after the approval of the commonwealth constitution on july 25, 1952, puerto rico’s juridico-political relations with the united states may be characterized as peculiar, distinct and unique within the constitutional framework of the north american federal system. the issue has sparked, and still generates, intense debates in the different sectors of public opinion. there are in the legal sphere areas of honest differences of opinion not as yet defined by the federal supreme court in its function as ultimate interpreter of the united states constitution.22 the concurring justice approvingly claimed that the majority abstained from drawing the court into “the politico-partisan debate that these differences generate,” stating that their decision was based on “a strictly legal standpoint” and that constitutionally speaking, the pertinent historical and political precedents constitute solid grounds on which to recognize that the people of puerto rico enjoy sufficient sovereign attributes, although not of a classic mold, to conclude and adjudicate—by way of analogy to the legal approach prevailing in relation to the states of the union—that successive criminal prosecutions in our courts and in the federal courts for the same offense do not impinge on 21 in puerto rico, lower court judges and supreme court judges are referred to equally as “juez” or “jueza”—the spanish word for “judge.” however, for purposes of this article, judges of the supreme court of puerto rico are referred to as “justices,” the term most commonly used in the united states to designate judges from a state’s highest court. 22 castro garcía, 20 p.r. offic. trans. at 820. no. 2:80] puerto rico before the u.s. supreme court 89 the [d]ouble [j]eopardy [c]lause contained in art. ii, section 11 of our bill of rights or in the fifth amendment to the federal constitution.23 the lone dissenter was justice francisco rebollo lópez.24 contrary to the concurrence, the dissent started by accusing the majority of playing politics, stating that: although in our personal capacity we have the absolute constitutional right to believe and think in accordance with our particular view of life and the world we live in, we, as members of this court, cannot afford the luxury of acting and deciding the issues brought to our consideration in accordance with those personal beliefs or wishes, in total abstraction from the legal reality in which we are immersed.25 rebollo lópez concluded that, although: public law no. 600 of the eighty-first united states congress passed on july 3, 1950, authorizing the people of puerto rico to organize a local government under its own constitution, it is very important that we always keep in mind that being said public law 600 ‘an act’ of said congress, it is not binding upon future congresses and it can be unilaterally amended by any future congress.26 23 id. at 820–21 (internal citations omitted). 24 for an analysis on justice rebollo lópez’s judicial philosophy, see andrés gonzález berdecía & alejandro suárez vincenty, análisis y perfil adjudicativo de los jueces y de las juezas del tribunal supremo de puerto rico: francisco rebollo lópez, 80 rev. jur. u.p.r. 107 (2011). 25 castro garcía, 20 p.r. offic. trans. at 822 (rebollo lópez, j., dissenting). 26 id. at 828 (internal citations omitted). 90 columbia journal of race and law [vol. 7:1 the dissent quoted several statements made by american and puerto rican sponsors of the bill at the time of its enactment, including then-governor luis muñoz marín27 and thenresident commissioner antonio fernós isern, who respectively stated that congress could unilaterally change the statute in the future, and that the act would not alter the powers of sovereignty acquired by the united states over puerto rico under the terms of the treaty of paris. the dissenting justice also relied on the fact that congress has continued to treat puerto rico differently from states of the union for statutory purposes, a practice the united states supreme court has upheld,28 pursuant to congress’s powers under the territorial clause of the united states constitution.29 the dissent found unpersuasive the majority’s reliance on wheeler since “puerto rico has never enjoyed a 27 luis muñoz marín (1898-1980) was the first democraticallyelected governor of puerto rico (1948-1964). in 1938, he founded the pdp as a center-to-left, pro-independence institution, which later abandoned both its leftist leanings and its independence stance in favor of the commonwealth option. he is unquestionably one of the most important political figures in puerto rican history and will forever be associated with the creation of the commonwealth. to get an idea of what he represents to pro-commonwealth puerto ricans, an american would probably have to merge george washington and franklin delano roosevelt into one person. to most pro-independence puerto ricans, however, he may fairly be characterized as puerto rico’s benedict arnold, with the title of most important political figure of the 20th century falling instead on proindependence nationalist party leader dr. pedro albizu campos (18911965). although statehood supporters did not have a similar “mythical” figure at that time, if they did, it would have to be luis a. ferré aguayo (1904-2003), founder of the new progressive party (npp) and the first prostatehood governor of puerto rico (1968-1972). thus, as shall be seen throughout this article, the reliance on muñoz marín’s statements by prostatehood judges in order to demonstrate the commonwealth’s lack of sovereignty is by no means a coincidence. 28 see, e.g., harris v. rosario, 446 u.s. 651 (1980); torres v. puerto rico, 442 u.s. 465 (1979); califano v. torres, 435 u.s. 1 (1978). 29 “the congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states; and nothing in this constitution shall be so construed as to prejudice any claims of the united states, or of any particular state.” u.s. const. art. iv, § 3, cl. 2 (emphasis added). no. 2:80] puerto rico before the u.s. supreme court 91 primeval sovereignty because . . . it was ceded by spain to the united states and it is on that original condition that its relationship with the united states is based.”30 in order to understand why a question settled almost three decades ago by both the supreme court of puerto rico and the first circuit reached the united states supreme court during the october 2015 term, historical background is necessary.31 in november 2004, anibal acevedo vilá won the governorship of puerto rico for the pro-commonwealth pdp while the pro-statehood npp obtained control of both houses of the legislature. during this four-year term, the supreme court of puerto rico went from having seven justices to only four.32 almost a decade before senate republicans contemplated the idea of not having public hearings on a presidential nominee for the united states supreme court, their puerto rican npp counterparts had already “successfully” employed the strategy in the commonwealth with regard to not one, but three supreme court vacancies, with opposition senator jorge de castro font expressly stating, repeatedly and unapologetically, that no one who did not support statehood would be confirmed.33 unlike president 30 castro garcía, 20 p.r. offic. trans. at 832 (emphasis added). 31 for further discussion regarding the changes to the composition of the court during this period and their impact on its case law, see luis j. torres asencio, las elecciones y el tribunal supremo, 80 grados (november 9, 2012, 1:10 am), http://www.80grados.net/las-elecciones-y-el-tribunalsupremo/ [https://perma.cc/3cvr-lew2] (in spanish). 32 the commonwealth constitution states, “the legislative assembly shall establish a retirement system for judges. retirement shall be compulsory at the age of seventy.” p.r. const. art. v, § 10. justice baltasar corrada del río retired in 2005 after turning seventy years old, pursuant to the commonwealth’s constitutional requirement; so did justice francisco rebollo lópez in 2008. justice jaime b. fuster berlingeri died from cardiac arrest in 2007. 33 in a phrase now well-known in puerto rican popular culture, de castro font stated that the npp would have a “banquete total” (literally translated as “total banquet,” but more appropriately as “the whole meal”), meaning that the npp would win the next elections and obtain control of the executive, legislature, and the supreme court. they did. de castro font, however, would not reap the benefits. in october 2008, he was 92 columbia journal of race and law [vol. 7:1 obama, however, governor acevedo vilá did not nominate a candidate. he lost the november 2008 election by a landslide34 and luis g. fortuño burset became governor. as promised, the pro-statehood npp quickly filled all three vacancies.35 in addition, the only npp-appointed justice left on the “original” court retired in 2010,36 giving fortuño the chance to appoint his fourth justice in less than two years.37 thus, for the first time ever, the supreme court of puerto rico was not “controlled” by justices appointed by the procommonwealth pdp. but simple majority was not enough. in compliance with the commonwealth’s constitutional requirement that any increase in the number of seats to the supreme court be officially requested by the court itself, the “new majority” did just that, and in 2011 governor fortuño nominated, and the senate happily confirmed, his fifth and sixth justices.38 thus, in just four years, the supreme court of puerto rico shifted from a moderate-to-conservative procommonwealth institution to a very-conservative prostatehood one.39 the effects were felt immediately, with the arrested and indicted on thirty-two federal charges including fraud, extortion, bribery and money laundering, for which he was later convicted and sentenced to five years in prison and three years on probation. 34 in march 2008, acevedo vilá was indicted on nineteen counts of campaign finance violations. five more counts were added later. one month after the general elections, judge paul barbadoro dismissed fifteen of the charges and in march 2009 a jury acquitted acevedo vilá of all remaining charges. 35 rafael l. martínez torres, mildred g. pabón charneco, and erick v. kolthoff caraballo took office in march 2009. 36 justice efraín rivera pérez resigned effective july 31, 2010. he died in a motorcycle accident in september 2013. 37 edgardo rivera garcía took office in august 2010. 38 roberto feliberti cintrón and luis f. estrella martínez took office in may 2011. 39 in november 2012, alejandro garcía padilla won the governorship for the pdp, which also regained control of both branches of the legislature. since that time, chief justice federico hernández denton retired due to age in 2014 and was succeeded as chief justice by associate justice liana fiol matta, who herself retired after turning seventy in early no. 2:80] puerto rico before the u.s. supreme court 93 “new court” upholding the validity of every economic and social conservative policy adopted by the npp administration, almost always over the dissent of the three suddenly-moreliberal pro-commonwealth justices.40 it should have come as no surprise that issues relating to the nature of the political status between puerto rico and the united states would be looked upon differently by the court, and that dissenting opinions like those espoused by pro-statehood judges torruella and rebollo lópez could become the law in puerto rico. luis m. sánchez valle’s attorneys were well aware of it.41 2016. maite oronoz rodríguez was confirmed as associate justice in 2014 and later nominated and summarily confirmed (without public hearings) as chief justice in 2016. ángel colón pérez succeeded her as associate justice in june 2016. associate justice anabelle rodríguez rodríguez is now the only justice on the court appointed prior to 2009. because both hernández denton and fiol matta were appointed by pdp administrations, and have been succeeded by pdp appointees, the “balance of power” has remained the same. 40 see, e.g., rivera schatz v. estado libre asociado de puerto rico, 2014 t.s.p.r. 122 (2014) (overruling col. de abogados de p.r. v. schneider, 112 p.r. dec. 540 (1982)); e.l.a. v. nw. selecta, 185 p.r. dec. 40 (2012) (overruling r.c.a. v. gobierno de la capital, 91 p.r. dec. 416 (1964)); roselló puig v. rodríguez cruz, 183 p.r. dec. 81 (2011) (partially overruling toppel v. toppel, 114 p.r. dec. 775 (1983)); e.l.a. v. crespo torres, 180 p.r. dec. 776 (2011) (overruling among others, sepúlveda v. depto. de salud, 145 p.r. dec. 560 (1998); aulet v. depto. servicios sociales, 129 p.r. dec. 1 (1991); a.c.a.a. v. bird piñero, 115 p.r. dec. 463 (1984); cartagena v. e.l.a., 116 p.r. dec. 254 (1985); american r.r. co. of p.r. v. wolkers, 22 p.r. dec. 283 (1915); arandes v. báez, 20 p.r. dec. 388 (1914)). 41 after the case ended in the united states supreme court, sánchez valle’s attorneys from the legal aid society (“sociedad para la asistencia legal”) stated publicly that they initially saw the case as one of civil rights only, and were “unaware” of its political ramifications until the puerto rico solicitor general office appeared before the court of appeals. that statement, however, should hardly be taken seriously. see josé a. delgado and cynthia lópez cabán, habita en suelo federal la soberanía de puerto rico, el nuevo día (june 10, 2016, 12:00 am), http://www.elnuevodia.com/noticias/politica/nota/habitaensuelofederallaso beraniadepuertorico-2208796/ [https://perma.cc/s4zr-zjap] (in spanish). 94 columbia journal of race and law [vol. 7:1 b. the case in puerto rico 1. the court of first instance in september 2008, several complaints were filed against sánchez valle in commonwealth courts for violations of the puerto rico weapons act, alleging that he illegally sold and transferred a weapon and ammunition.42 in june 2010, sánchez valle asked the court of first instance to dismiss the charges against him because he had already been sentenced to prison, house arrest, and supervised release in federal court for the same acts for which he was being prosecuted in puerto rico. like lópez andino and castro garcía before him, sánchez valle argued that his second prosecution constituted double jeopardy because the commonwealth and the federal government were the same sovereign for double jeopardy purposes.43 while acknowledging in a single paragraph that castro garcía held exactly the opposite,44 the court of first instance nonetheless held that: [d]ue to historical reasons and reasons of political, social, judicial and constitutional reality, the doctrine of ‘dual judicial sovereignty’ does not apply to the controversy at hand. we believe that sovereignty or the source of power of puerto rico to prosecute its 42 judicial proceedings in puerto rico are conducted in spanish. all quotations to judgments of the court of first instance and the court of appeals, as well as opinions of the supreme court, refer to the certified translations of such decisions included in the parties’ joint appendix to the united states supreme court in puerto rico v. sánchez valle. joint appendix, puerto rico v. sánchez valle, 136 s. ct. 1863 (no. 15-108) [hereinafter svja]. 43 id. at 308a–09a. 44 id. at 319a–20a. no. 2:80] puerto rico before the u.s. supreme court 95 citizens resides and emanates from the federal government through congress.45 in closing, the court added that: [i]t cannot be concluded in any way that with the mere approval of an insular constitution (at the mercy of legislative action by congress), puerto rico (which never had any degree of sovereignty throughout its historical trajectory), acquired a sovereignty similar to that of the states of the union, which is the basis of their judicial sovereignty vis-à-vis the judicial sovereignty of the central federal government. this is the current political, legal and constitutional reality between puerto rico and the united states of america. regardless of what legal fiction may be formulated to state otherwise, no matter how many times it is enunciated or how well it may be disguised in jurisprudence, it will never cease to exist in its chimerical setting and become a reality.46 these strong words came from a judge who was openly contradicting clear binding precedent from the highest court of his jurisdiction. the court felt no need to distinguish the case from castro garcía or explain why that case was no longer good law. instead, it mostly cited approvingly the understanding of sovereignty espoused in a law review article47 and misleadingly suggested that one of the leading criminal law and criminal procedure scholars in puerto rico, professor ernesto l. chiesa aponte, supported the court’s venture into a question settled long ago in puerto 45 id. at 321a. 46 id. at 324a–325a (emphasis added). 47 id. at 333a. see also fermín arraiza navas, soberanía v. soberanía dual, 25 rev. jur. u.i.p.r. 645 (1991). 96 columbia journal of race and law [vol. 7:1 rico.48 the reason why the court was not worried about stare decisis should be apparent by now: there was a new supreme 48 professor chiesa merely stated the following: [t]he particular status of the commonwealth raises passionate controversies regarding the applicability of the doctrine of dual sovereignty for purposes of the protection against double jeopardy, in the federal-insular context. of course, when faced with a prosecution by another state, followed or preceded by a federal prosecution, the doctrine of dual sovereignty is applied. but when faced with a criminal prosecution under the laws of the commonwealth, followed or preceded by a federal prosecution, the applicability of the doctrine of dual sovereignty will depend on the answer to the following question: [do] the criminal laws of the commonwealth emanate from an independent sovereignty or, ultimately, from the federal government? this question has not been addressed—and will probably not be addressed— by the [united states] supreme court. . . . . castro is not the last word regarding the applicability of the doctrine of dual judicial sovereignty to puerto rico; under the fifth amendment, the federal courts can rule otherwise, that is, as stated in the dissenting opinion. additionally, it is also not clear whether castro has the scope to interpret the commonwealth’s constitutional clause against double jeopardy and the barring of multiple prosecutions in article 63 of the penal code, to deny protection in cases involving interjurisdictional (federal-state) prosecutions. on one hand, it can be said that what the supreme court had before it was a constitutional matter involving double jeopardy, basis of the appealed decision, and not a statutory matter under article 63 of the penal code. on the other hand, it can be said that what is being appealed is the sentence and not its grounds, for which reason article 63 no. 2:80] puerto rico before the u.s. supreme court 97 court in san juan. before getting there, however, puerto rico’s intermediate appellate court would weigh in on the matter. 2. the court of appeals the court of appeals unanimously reversed, although every member of the three-judge panel seemed to rely on somewhat different grounds. through judge carlos cabrera, the court held that puerto rico was a sovereign for double jeopardy purposes.49 the appellate court extensively discussed lanza and its progeny, as well as lópez andino, but did not reopen the question or respond to any of the lower court’s assertions, instead reciting what the supreme court of puerto rico held in castro garcía, and applying it as binding precedent. unlike the lower court’s judgment, which referred to puerto rico as “the island” and consciously talked about the “local” and “insular” constitution, the appellate court referred to puerto rico as “[o]ur country.”50 judge teresa medina monteserín issued a short concurring opinion in which she acknowledged that castro garcía controlled, but expressly asked the puerto rico supreme court to overrule the opinion and adopt judge rebollo lópez’s dissenting position because, in her view, puerto rico remained “an unincorporated territory of the united states of america.”51 was implicitly rejected as basis to confirm the appealed decision. ernesto l. chiesa aponte, derecho procesal penal de puerto rico y estados unidos 429–30 (tercer mundo limitada ed. 1991). 49 svja, supra note 42, at 280a–81a (emphasis added) (internal citations omitted). 50 in explaining the defendants’ arguments, the court stated that they claimed that “[o]ur country continues to be an unincorporated territory of the united states of america.” id. at 279a. the practical political, and thus legal, relevance of referring to puerto rico as a nation or country will be addressed in part iv infra. 51 id. at 284a. 98 columbia journal of race and law [vol. 7:1 judge troadio gonzález vargas filed an important “particular vote” that sets forth the pro-commonwealth view. the judge humbly recognized at the outset that “the present legal controversy, though legitimate, is inevitably impacted or influenced by the omnipresent debate about the subject of the political status of puerto rico,”52 adding that “the legal analysis of this controversy is inevitably intertwined with, and influenced by, the ideological debate surrounding the subject of the status, for which reason we cannot realistically separate both matters.”53 after his disclaimer, the judge argued in detail that, through the enactment of the federal relations act in 1950 and the subsequent adoption of the constitution of the commonwealth in 1952, puerto rico ceased to be an unincorporated territory of the united states subject to congress’ plenary powers under the territorial clause, as previously decided by the united states supreme court; instead, with the consent of the people of puerto rico, puerto rico became a commonwealth, meaning a distinct political entity, “sovereign” over matters not delegated to the united states through “a compact” of association. in plain terms, the judge claimed that puerto ricans exercised their right to self-determination as a nation under international law, and thus the source of the commonwealth’s criminal laws emanates from the people of puerto rico. therefore, the judge concluded that: it is legally unacceptable and contrary to the dignity of every puerto rican to argue that even the adoption of their criminal laws and the indictment for the violation of same are merely the result of gifts or graces by the people of the united states, as if we found ourselves in the times of the crudest colonial regime. we find it to be equally offensive to the dignity of the people of the united states to be accused of 52 id. at 286a. 53 id. at 287a–88a. no. 2:80] puerto rico before the u.s. supreme court 99 such colonial brutality in the dawn of the [21st] century, and of being and acting as an international felon in front of the community of nations, in which they care to be regarded as a leader of international morality.54 the judge referred to puerto rico as “our country” and “a nation” on numerous occasions.55 3. the supreme court of puerto rico as expected, the supreme court of puerto rico expressly overruled garcía castro. through justice martínez torres, the pro-statehood majority concluded that “the commonwealth of puerto rico is not a sovereign entity inasmuch as, being a territory, its ultimate source of power to prosecute offenses is derived from the united states congress.”56 thus, the court held that “a person who was prosecuted in federal court cannot be prosecuted for the same offense in the puerto rico courts because that would constitute a violation of the constitutional protection against double jeopardy, as provided in the fifth amendment [of the united states constitution].”57 the court explained that under grafton v. united states,58 a case decided almost one hundred years earlier, a territory of the united states is not sovereign for double jeopardy purposes. instead, “a territory owes its existence wholly to the federal government, and its tribunals exert all their powers by authority of the united states.”59 54 svja, supra note 42, at 304a–05a. 55 id. at 286a–305a. 56 id. at 66a (emphasis omitted). 57 id. at 67a. 58 grafton v. united states, 206 u.s. 333 (1907). 59 svja, supra note 42, at 23a (quoting grafton, 206 u.s. at 354). 100 columbia journal of race and law [vol. 7:1 the majority also found support in wheeler, where the united states supreme court reiterated that “city and state, or territory and nation, are not two separate sovereigns.”60 unlike their predecessors in castro garcía, who believed that the statements contained in puerto rico v. shell co.61 were dicta “devoid of any legal basis and should be left to rest in peace,”62 the new majority found them “[o]f particular importance” to the case before them. although the new puerto rico supreme court did not refute the claim that this statement was dictum, the court nonetheless relied heavily on it, perhaps finding it too crucial to be ignored. the majority also pointed out that other federal courts of appeals had refused to apply the dual sovereignty doctrine to united states territories.63 in what it considered “an exercise of intellectual honesty,”64 the court explained that in united states v. sánchez65 the eleventh circuit correctly applied shell co. as binding precedent when it held that puerto rico remained a territory of the united states for double jeopardy purposes, and thus not a separate sovereign, notwithstanding the fact that it directly conflicted with the first circuit’s holding in lópez andino. the court then got to the crux of its argument: the insular cases66 declared puerto rico to be an unincorporated 60 id. at 24a (quoting wheeler, 435 u.s. at 321) (emphasis added). 61 puerto rico v. shell co., 302 u.s. 253 (1937). 62 castro garcía, 20 p.r. offic. trans. at 799. 63 gov’t of virgin islands v. dowling, 633 f.2d 660, 669 (3rd cir. 1980), cert. denied, 449 u.s. 960 (1980) (asserting that the territory of the united states virgin islands and the united states government constitute a single sovereignty for purposes of the clause against double jeopardy). 64 svja, supra note 42, at 30a. 65 united states v. sánchez, 992 f.2d 1143 (11th cir. 1993), cert. denied, 510 u.s. 1110 (1994). 66 for a comprehensive sociological and legal analysis of the insular cases and the history of the relationship between puerto rico and the u.s. by a pro-independence commentator, see efrén rivera ramos, american colonialism in puerto rico: the judicial and social legacy (markus wiener publishers ed., 2009). for further discussion of the insular cases no. 2:80] puerto rico before the u.s. supreme court 101 territory, and neither the enactment of the puerto rico federal relations act in 1950 nor the constitution adopted pursuant to it in 1952 altered that constitutional reality. 67 decided by the united states supreme court in the early part of the 20th century, the insular cases deal with the “acquisition” of new lands by the united states following the spanish-american war.68 although each case addressed a particular issue, commentators characterized the underlying question that needed to be settled by the court as “whether the constitution followed the flag.” the answer was an and puerto rican constitutional law, see generally josé j. álvarez gonzález, derecho constitucional de puerto rico y relaciones constitucionales con los estados unidos (2009). for pro-commonwealth commentators, see salvador e. casellas, commonwealth status and the federal courts, 80 rev. jur. u.p.r. 946, 954 (2011); josé trías monge, historia constitucional de puerto rico (1980); but see josé trías monge, puerto rico: the trials of the oldest colony in the world (1997). for pro-statehood commentators, see juan r. torruella, the supreme court and puerto rico: the doctrine of separate & unequal (1985); see also gustavo a. gelpí, los casos insulares: un studio histórico comparativo de puerto rico, hawái y las islas filipinas, 45 rev. jur. u.i.p.r. 215 (2011); carlos saavedra gutiérrez, incorporación de jure o incorporación de facto: dos propuestas para erradicar fantasmas constitucionales, 80 rev. jur. u.p.r. 967 (2011); christina duffy burnett & a.i. cepeda derieux, los casos insulares: doctrina desanexionista, 78 rev. jur. u.p.r. 661 (2009). for a collection of essays on the insular cases from commentators of different ideological persuasions, see gerald l. neuman & tomik brownnagin, reconsidering the insular cases: the past and future of the american empire (2015). 67 svja, supra note 42, at 33a–62a. 68 see the diamond rings, 183 u.s. 176 (1901); huus v. n.y. & porto rico s.s. co., 182 u.s. 392 (1901); downes v. bidwell, 182 u.s. 244 (1901); armstrong v. united states, 182 u.s. 243 (1901); dooley v. united states, 182 u.s. 221 (1901); goetze v. united states, 182 u.s. 221 (1901); de lima v. bidwell, 182 u.s. 1 (1901). see also ocampo v. united states, 234 u.s. 91 (1914); ochoa v. hernández, 230 u.s. 139 (1913); dowdell v. united states, 221 u.s. 325 (1911); kopel v. bingham, 211 u.s. 468 (1909); kent v. people of porto rico, 207 u.s. 113 (1907); trono v. united states, 199 u.s. 521 (1905); rasmussen v. united states, 197 u.s. 516 (1905); dorr v. united states, 195 u.s. 158 (1904); kepner v. united states, 195 u.s. 100 (1904); gonzález v. williams, 192 u.s. 1 (1904); hawaii v. mankichi, 190 u.s. 197 (1903). 102 columbia journal of race and law [vol. 7:1 unequivocal “not necessarily.” in downes v. bidwell,69 the united states supreme court held that puerto rico had become a “territory” of the united states after the signing of the treaty of paris between the united states and spain in 1898, coining a phrase forever ingrained in puerto rican legal culture: puerto rico belonged to, but was not a part of, the united states.70 as such, congress had “plenary power” over puerto rico, subject only to some basic principles “which are the basis of all free government.”71 justice white’s concurring opinion in downes established what would later become the basic holding of the insular cases.72 under his view, there were two types of territories: those that congress intended to “incorporate” as part of the union, in which the constitution applied ex proprio vigore, and those that remained “unincorporated,” in which the constitution did not apply except for those provisions deemed basic or fundamental. puerto rico fell into the latter group. this situation did not change after congress enacted a new organic charter known as the jones act in 1917,73 by virtue of which puerto ricans became united states citizens.74 69 downes v. bidwell, 182 u.s. 244 (1901). 70 id. at 287 (“we are therefore of opinion that the island of porto rico [sic] is a territory appurtenant and belonging to the united states, but not a part of the united states. . .”) (emphasis added). 71 id. at 290–91. 72 id. (white, j., concurring). see also balzac v. porto rico, 258 u.s. 298 (1922). 73 jones act, ch. 190, 39 stat. 951 (1917) (codified at 48 u.s.c. § 731 (1987). for more on the effects of american citizenship in puerto rico, see efrén rivera ramos, american colonialism in puerto rico, supra note 66, at 145–89. see also josé cabranes, citizenship and the american empire, 127 u. pa. l. rev. 391 (1978); josé trías monge, 1 historia constitucional de puerto rico 70–110 (1981) (in spanish); raúl serrano geyls, derecho constitucional de estados unidos y puerto ricodocumentos-jurisprudencia-anotaciones-preguntas 467–70 (1986) (in spanish). 74 balzac, 258 u.s. at 306 (“had congress intended to take the important step of changing the treaty status of porto rico by incorporating it into the union, it is reasonable to suppose that it would have done so by the plain declaration, and would not have left it to mere inference.”). no. 2:80] puerto rico before the u.s. supreme court 103 after relying on boumediene v. bush75 for the proposition that “[d]espite the criticism of its disdainful and contemptuous tone towards the inhabitants of the territories, and of the obsolescence of much of the holdings of the insular cases, the core part of the doctrine has continued to be used,”76 the puerto rico supreme court in sánchez valle turned to congressional history to show why the adoption of the commonwealth constitution did not change the territorial status of puerto rico.77 the court extensively quoted then-governor luis muñoz marín’s statements that congress could unilaterally amend the puerto rican federal relations act “if the people of puerto rico should go crazy,”78 as well as then-resident commissioner antonio fernós isern’s assertions that the act “would not alter the powers of sovereignty acquired by the united states over puerto rico under the terms of the treaty of paris.”79 the majority also pointed out that the united states supreme court has continued to treat puerto rico as a territory after the creation of the commonwealth,80 in addition to the executive branch of the united states government.81 thus, the court concluded that there was unanimity among the three federal branches regarding this matter. at no point in its sixty-nine page opinion did the majority refer to puerto rico as a nation or a country. 75 boumediene v. bush, 553 u.s. 723, 759 (2008) (“[t]he court devised in the insular cases a doctrine that allowed it to use its power sparingly and where it would be most needed. this century-old doctrine informs our analysis in the present matter”). 76 svja, supra note 42, at 40a. 77 id. at 41a–46a. 78 id. at 41a. 79 id. at 42a. 80 id. at 46a–59a. 81 id. at 59a–62a (citing the presidential task force on the status of puerto rico, http://www.whitehouse.gov/sites/default/files/uploads/puerto_rico_report_ espanol.pdf [https://perma.cc/lq2j-7cze] (in spanish). 104 columbia journal of race and law [vol. 7:1 then-chief justice fiol matta issued a lengthy concurring opinion,82 which was joined by then-associate justice oronoz rodríguez. perhaps the most consistentlyliberal justice to ever sit on the supreme court of puerto rico, fiol matta83 concluded that double jeopardy applied “not because puerto rico lacks sovereignty to prosecute the petitioners,84 but because under the circumstances of this case, doing so would violate the protection against double jeopardy that our [puerto rican] constitution85 guarantees them.”86 the chief justice adopted a view that no party or prior judge had advanced—and that the majority consciously avoided—by interpreting the commonwealth’s double jeopardy clause more broadly than its federal counterpart in order to reject the application of the dual sovereignty doctrine.87 this was a position that, if accepted by the majority, would have made the court’s ruling unreviewable by the united states supreme court.88 according to then-chief 82 the certified translation of chief justice fiol matta’s concurring opinion contains one hundred and twenty pages. see svja, supra note 42, at 71a–190a. although fiol matta was well-known for issuing long opinions, her concurrence in sánchez valle was the longest one in her twelve years on the court. 83 for an analysis on justice fiol matta’s judicial philosophy, see ricardo ortiz morales & michelle r. robles torres, figuras jurídicas en contexto: añálisis del discurso de la jueza fiol matta en la adjudicaciòn de controversias ante el tribunal supremo de puerto rico, 80 rev. jur. u.p.r. 11 (2011) (in spanish). 84 in parts iv & iv of the opinion, the chief justice discusses in detail why she believes that it is well settled in both federal and commonwealth courts that in 1952 puerto rico ceased to be a territory of the united states subject to the plenary powers of congress. id. at 116a– 164a. because her position regarding this matter does not relevantly differ from that espoused by justice rodríguez rodríguez in her dissenting opinion, i will focus on the latter. 85 p.r. const. art. ii, § 11. 86 svja, supra note 42, at 73a. 87 the chief justice clarified that her view was not based only on the “so-called ‘broader scope’ of the commonwealth constitution,” but on “an imperative resulting from the inviolability of the dignity of the human being” consecrated in the puerto rican bill of rights. id. at 186a–87a. 88 as stated in the opinion, several states have enacted statutes similar to rule 1.10 of the model penal code, which limits the authority of no. 2:80] puerto rico before the u.s. supreme court 105 justice fiol matta, “[i]n its haste to undermine the spirit of our [puerto rican] constitution and our efforts to affirm ourselves as a nation, the majority has ignored the actual controversy involved in this case: the fundamental inconsistency between the possibility of prosecuting an individual twice for the same criminal acts and the crucial guiding principle of puerto rico’s constitution, the inviolability of human dignity.”89 the lone dissenter this time was justice anabelle rodríguez rodríguez.90 like she has done repeatedly since 2008, justice rodríguez rodríguez issued a scathing dissent, stating at the outset that “[o]nce again, a majority of this [c]ourt hastens to overrule, on questionable grounds, firmlyestablished precedents of our legal system.”91 also, just like the majority relied mostly on pro-statehood legal scholars, justice rodríguez rodríguez relied heavily on procommonwealth ones.92 she claimed that the court’s decision a jurisdiction to prosecute a person for conduct for which he or she has already been prosecuted in another jurisdiction. see comm. v. mills, 286 a.2d 638, 643–644 (1971). other states afford the same protection expressly in their constitution, see mont. const. art. ii, § 25, or their highest court has recognized it as a state constitutional mandate. see state v. hogg, 118 n.h. 262, 267 (1978). 89 svja, supra note 42, at 73a (emphasis added). 90 the author clerked for justice rodríguez rodríguez during the october 2011 term. 91 svja, supra note 42, at 192a. 92 in footnote 3, justice rodríguez rodríguez states that “[t]here is no doubt that mr. josé trías monge, who presided this court from april 19, 1974, to september 30, 1985, has been our most distinguished jurist.” svja, supra note 42, at 193a. in footnote 24, the justice refers to him as “the most eminent puerto rican jurist.” id. at 217a. trías monge’s contributions as a judge and as a scholar are widely recognized and appreciated by the puerto rican legal community, and deservedly so. his contributions, like those of other commentators mentioned here, should not be diminished because of his known position on the status question; however, they should be contextualized. though the conclusion that trías monge is “our most distinguished” or “most eminent jurist” is more-easily drawn by pro-commonwealth scholars, it is fair to say that many other legal minds would also consider him the puerto rican john marshall. and even trías monge himself referred to the commonwealth as “the oldest colony in 106 columbia journal of race and law [vol. 7:1 was based “more on ideology than on law”93 and expressly asked the united states supreme court to reverse it.94 the dissent accused the majority of engaging in “disconcerting historical revisionism,”95stating as follows: [t]here can be no doubt that the court majority’s objective is to advance its ideology on the status of puerto rico and has used, and will continue to use, legal opinions to do so. this, despite the fact that ideological campaigns are incumbent on the political process, not court decisions. with such an objective, the majority disregards the provisions of our constitution, our laws, what the social wellbeing of our country demands and even the provisions of the u.s. constitution and the precedents of the u.s. supreme court. in short, nothing persuades, nothing matters to this majority, when arguments are inconvenient to certain ideological posture. it appears that the only thing that matters to them is achieving through [c]ourts what has not been achieved and should be done through the political process. that is, they are using the court’s function as another mechanism to exercise political pressure to pursue their political ideologies, which conveniently translates into simplistic and outof-context legal interpretations. in the process, all of our prior opinions regarding puerto rico constitutional framework are dismantled. to use this higher court for such purposes is profoundly anti-democratic and, therefore, the world” after leaving the court. see trías monge, puerto rico: the trials of the oldest colony in the world, supra, note 66. 93 svja, supra note 42, at 194a. 94 id. at 196a. 95 id. at 241a. no. 2:80] puerto rico before the u.s. supreme court 107 notably and ironically anti-american. it contravenes fundamental notions of how politics should be done and, in the process, tarnishes the legitimacy of this court. as i have stated before: what a shame!96 justice rodríguez rodríguez followed the traditional procommonwealth vision relied upon by the supreme court of puerto rico in castro garcía and the first circuit in lópez andino. in essence, she rejected that shell co. controlled, claiming that the statements contained therein were dicta97 that could not apply to puerto rico after 1952 because it had ceased to be a territory belonging to the united states and instead had become a sui generis, “atypical” “sovereign entity,”98 “at least, with regard to its internal affairs.”99 the dissent criticized the majority for adopting an “anachronistic” view of sovereignty100 and questioned the validity of the “socalled insular cases,”101 arguing that, with the consent of the puerto rican people, congress “relinquished its plenary powers regarding puerto rico in what pertains to its internal affairs.”102 in what constitutes classic pro-commonwealth legal parlance, justice rodríguez rodríguez concluded that “the constitution of the commonwealth is not just another organic act of the congress. we find no reason to impute to the congress the perpetration of such a monumental hoax. public law 600 offered to the people of puerto rico a ‘compact’ under which, if the people accepted it, as they did, they were authorized to ‘organize a government pursuant to a constitution of their own adoption.’”103 96 id. at 241a–42a (emphasis added). 97 id. at 209a. 98 on “atypicality,” see id. at 215a, n.23. 99 svja, supra note 42, at 239a. 100 on “sovereignty”, see infra part iv; svja, supra note 42, at 219a–225a. 101 id. at 208a, n.16. 102 id. at 230a. 103 id. at 226a–27a, n.33 (quoting figueroa v. people of puerto rico, 232 f.2d 615, 620 (1st cir. 1956). 108 columbia journal of race and law [vol. 7:1 unlike the majority, justice rodríguez rodríguez referred to puerto rico as “our country” on several occasions throughout her opinion; unlike fiol matta, she did not use the term “nation.”104 c. the case before the united states supreme court the commonwealth filed its petition for writ of certiorari in the united states supreme court on july 15, 2015, which the court granted on october 1, 2015. at that point, it was unclear what position the obama administration would assume in the case, if any. though the federal government had occasionally stated in different contexts throughout the years that puerto rico remained a territory, as explained in the lower courts’ decisions, not once since the creation of the commonwealth had the department of justice unambiguously assumed that position before the supreme court, much less validated the insular cases. in fact, in lópez andino the federal government took the opposite view when it asked the first circuit to hold that puerto rico was a separate sovereign for double jeopardy purposes.105 that being the case, the people who believed that the federal government would adopt a similar position in sánchez valle should hardly be faulted for their view. on december 23, 2015, the united states filed an amicus brief in support of respondents. acknowledging that it was changing its prior position, the united states asserted that “[t]hose briefs do not 104 in part ii, the dissent briefly dismissed chief justice fiol matta’s argument that, although the puerto rico possessed sovereignty for double jeopardy purposes, the commonwealth constitution’s double jeopardy clause nonetheless barred the second prosecutions in the case. justice rodríguez rodríguez concluded that “‘[t]here is no basis to hold that the clause was given or should be given greater content’ in the puerto rican constitutional order.’” id. at 202a (quoting ernesto l. chiesa aponte, doble exposición, 59 rev. jur. u. p.r. 479, 480 (1990)). 105 see united states v. lópez andino, 831 f.2d at 1167–68 (1st cir. 1987). no. 2:80] puerto rico before the u.s. supreme court 109 reflect the considered view of the executive branch.”106 instead, the united states now argued that “[a]lthough puerto rico exercises significant local authority, with great benefit to its people and to the united states, puerto rico remains a territory under our constitutional system. puerto rico does not possess sovereignty independent of the united states, and its prosecutions cannot invoke the dual sovereignty doctrine under the double jeopardy clause.”107 by a six to two vote, the court agreed.108 in an opinion by justice kagan, the court held that puerto rico and the federal government are the same sovereign for double jeopardy purposes “because the oldest roots of puerto rico’s power to prosecute lie in federal soil.”109 the majority began by analyzing congress’s historical treatment of puerto rico. as most courts usually do, the court focused on the various “organic acts” that congress has enacted to rule over the island.110 the story goes as follows: puerto rico became a united states territory following the spanish-american war through the treaty of paris of 1898, when spain “ceded” the island to the united states, “and tasked congress with determining ‘[t]he civil rights and political status’ of its inhabitants.’”111 congress then “established” a “civil government” in 1900 through what is commonly referred to as the foraker act.112 puerto ricans became united states citizens in 1917 when congress passed the jones act, which also “granted” additional autonomy.113 106 brief for the united states as amicus curiae supporting respondents at 32, n.6, puerto rico v. sánchez valle, 136 s. ct. 1863 (2016) (no. 15-108) [hereinafter usab]. 107 id. at 34. 108 puerto rico v. sánchez valle, 136 s. ct. 1863 (2016). 109 id. at 1868. 110 id. at 1884. 111 id. at 1868. 112 id. 113 id. 110 columbia journal of race and law [vol. 7:1 in 1947, congress “empowered the puerto rican people to elect their own governor, a right never before accorded in a [united states] territory.”114 then, through public law 600, in 1950 congress “enabled puerto rico to embark on the project of constitutional self-governance,” which ultimately led to the adoption of a constitution drafted by the puerto rican people, and was later approved by both congress and puerto rico.115 that constitution “created a new political entity, the commonwealth of puerto rico—or, in spanish, estado libre asociado de puerto rico,” which proclaims that the commonwealth’s power “emanates from the people and shall be exercised in accordance with their will, within the terms of the compact agreed upon between the people of puerto rico and the united states.”116 it took the court three pages to explain more than 115 years of puerto rico-united states relations, after which it claimed to “leave the lofty sphere of constitutionalism for the grittier precincts of criminal law.”117 the majority explained that “[t]o determine whether two prosecuting authorities are different sovereigns for double jeopardy purposes,”118 the court asks a “narrow, historically focused question”: “whether the prosecutorial powers of the two jurisdictions have independent origins—or, said conversely, whether those powers derive from the same 114 sánchez valle, 136 s. ct. at 1868. 115 id. 116 id. at 1868–69 (emphasis added). 117 id. at 1869. 118 in the first footnote of the opinion, the court stated that it had “no occasion to consider” whether the double jeopardy clause “applies to puerto rico” “[b]ecause the parties in this case agree” that it does. id. at 1885, n.1. as fascinating as that may sound, the court seemed to forget that in 1976 it ruled that “that the protections accorded by either the due process clause of the fifth amendment or the due process and equal protection clauses of the fourteenth amendment apply to residents of puerto rico,” hence inventing yet another “peculiar” doctrine applied to puerto rico, the “either-or doctrine.” examining bd. of eng’rs v. flores de otero, 426 u.s. 572, 600 (1976). no. 2:80] puerto rico before the u.s. supreme court 111 ‘ultimate source.’”119 the court then held that while both states and indian tribes possess an independent source of sovereignty from the united states, the commonwealth does not. in a sentence that will probably be added to the those insular cases phrases forever ingrained in puerto rican legal culture, the court bluntly enunciated that “[t]he island’s constitution, significant though it is, does not break the chain,”120 thus finally officially debunking one of the most commonly-held myths in puerto rico. justice kagan then concluded her opinion as follows: puerto rico boasts ‘a relationship to the united states that has no parallel in our history.’ and since the events of the early 1950’s, an integral aspect of that association has been the commonwealth’s wide-ranging self-rule, exercised under its own constitution. as a result of that charter, puerto rico today can avail itself of a wide variety of futures. but for purposes of the double jeopardy clause, the future is not what matters—and there is no getting away from the past. because the ultimate source of puerto rico’s prosecutorial power is the federal government—because when we trace that authority all the way back, we arrive at the doorstep of the u. s. capitol— the commonwealth and the united states are not separate sovereigns. that means the two governments cannot ‘twice put’ respondents sánchez valle and gómez vázquez ‘in jeopardy’ for the ‘same offence.’ we accordingly affirm the judgment of the supreme court of puerto rico.121 119 sánchez valle, 136 s. ct. at 1867. 120 id. at 1876 (emphasis added). 121 id. 1876–77 (internal citations omitted). 112 columbia journal of race and law [vol. 7:1 the majority went as far as to call “deeply disturbing” the dissent’s argument that “it is difficult to . . . conclude that the tribes do possess this authority but puerto rico does not,” rebutting that it has been settled for nearly two centuries that the tribes have “inherent authority.”122 yet denying the same treatment to puerto rico, a community constituted politically decades before any of the original states had even been founded, did not disturb the court.123 the court never referred to puerto rico as a nation. the word colony was nowhere to be found in the opinion, except when the court once referred to puerto rico as a spanish colony that was “ceded” by spain to the united states in 1898, fifty-four years before it supposedly evolved “into a constitutional democracy exercising local self-rule.”124 conspicuously omitted, too, was the term “unincorporated territory” or any mention whatsoever of the insular cases, the very doctrine which the court necessarily relied upon in order to so easily validate congress’s constitutional authority over puerto rico. justice ruth bader ginsburg issued a concurring opinion, joined by justice clarence thomas. though she agreed with the majority in full, it appears that she would overrule the dual sovereignty doctrine recognized in lanza “in a future case in which a defendant faces successive prosecutions by parts of the whole usa.”125 justice thomas filed a separate opinion concurring in part and concurring in judgment. he disagreed with the court’s “portions of the opinion concerning the application of the double jeopardy 122 id. at 1873, n.5. 123 perhaps taíno descendants in puerto rico now have a better shot at sovereignty under american constitutional law than do puerto ricans themselves. according to traditional historical accounts, the taínos were the native group that predominated in puerto rico (borikén, as they called it) before and during the first centuries of spanish conquest over the island. 124 sánchez valle, 136 st. ct. at 1868. 125 id. at 1877 (ginsburg, j., concurring) (emphasis added). no. 2:80] puerto rico before the u.s. supreme court 113 clause to successive prosecutions involving indian tribes.”126 thus, it appears that he would at least overrule wheeler and its recognition of indian tribe sovereignty for double jeopardy purposes. justice stephen breyer sided with the commonwealth in a dissenting opinion, which was joined by justice sotomayor. he disagreed with the majority’s conclusion that a historical inquiry would “reveal” congress as the ultimate source of power in puerto rico, responding that the court does not mean literally what it says because it does not trace the island’s “source of power back to spain or rome or justinian,” just like it does not trace “the federal government’s source of power back to the english parliament or to william the conqueror or to king arthur.”127 instead, justice breyer posits, several “historical considerations” suggest that, by virtue of public law 600 and the creation of the commonwealth constitution in 1952, congress “determined that the ‘political status’ of puerto rico would for double jeopardy purposes subsequently encompass the sovereign authority to enact and enforce—pursuant to its own powers— its own criminal laws.”128 iii. puerto rico v. franklin california tax-free trust: the commonwealth’s plea to go bankrupt a. the commonwealth’s economic struggle for many decades, the commonwealth was sold by its supporters as “the best of both worlds,” a sort of caribbean paradise with a healthy united states economy. usually characterized as the “vitrina del caribe” (loosely translated as “the caribbean’s window [to latin america]”), the island served as a laboratory for american economic policies in the 126 id. (thomas, j., concurring). 127 id. at 1878 (breyer, j., dissenting). 128 id. 114 columbia journal of race and law [vol. 7:1 region decades before the chicago boys attempted the “chilean miracle” in the seventies.129 by the early 1940s, the combination of the last presidentially-imposed american governor in puerto rico, liberal rexford tugwell, and the rise of the washington-friendly luis muñoz marín as leader of the newly-created pdp led to a series of new deal policies in puerto rico known as the chardón plan.130 through the creation of many of the public corporations that remain in place today, the puerto rican government became the driving force behind the island’s economy by providing both the necessary infrastructure and the actual jobs for a big part of the population. although the chardón plan succeeded in providing better conditions for the puerto rican people, it was superseded in the 1950s by a different economic plan known as “operación manos a la obra” (operation bootstrap).131 this new strategy focused on incentivizing american private investment in puerto rico by providing tax exemptions like never before, so that companies would relocate to the island and create jobs. combined with the creation of the commonwealth and the massive wave of governmentpromoted emigration to the united states, mostly to new 129 the chilean miracle refers primarily to the reorientation of the chilean economy during dictator augusto pinochet’s military regime based on economic liberalization and privatization of state-owned corporations, designed by a group of chilean economists trained by milton friedman at the university of chicago known as “the chicago boys.” since then, many economists continually describe it as the model to follow for economic growth in latin america and elsewhere. see bryce breslin, chile: democracy and the chilean miracle, berkeley rev. of latin am. stud., fall 2007, http://clas.berkeley.edu/research/chile-democracy-and-chileanmiracle [https://perma.cc/ck9h-v8tv]. 130 carlos e. chardón palacios was an influential puerto rican politician that held several important public positions during the period. he served as administrator of puerto rico reconstruction administration, chancellor of the university of puerto rico, and executive director of the lands authority, among others. 131 the english name is said to have arisen from luis muñoz marín’s statements to congress in 1949 that “[we] are trying to lift ourselves by our own bootstraps.” see puerto rico constitution: hearings h.r. 7674 and s. 3336 before the h. comm. on public lands, 81st cong. 1–32 (1950) (statement of luis muñoz-marín, governor of puerto rico). no. 2:80] puerto rico before the u.s. supreme court 115 york,132 the economy and the atmosphere of prosperity certainly grew during the fifties, and did so quickly.133 nothing exemplified the new economic mindset better than § 936 of the internal revenue code.134 congress enacted § 936 in 1976 to give american companies an exemption from federal taxes on income, whether from operations or interests on local bank deposits, earned in puerto rico. section 936’s effects were felt immediately. many important american chemical, electrical, and pharmaceutical companies moved to puerto rico to take advantage of the tax incentives and the low wages that they could pay to a skilled, college-educated workforce. the commonwealth government could then use a local “tollgate tax” on the profits that these companies repatriated to the united states, thus strengthening its fisc. indeed, for most of the second half of the 20th century, puerto rico enjoyed a standard of living relatively higher than many, if not most, caribbean and south american countries. by the 1990s, § 936 had become increasingly unpopular in washington, with many suggesting that it was simply a way for big corporations to avoid paying taxes.135 almost all sectors in puerto rico recognized that § 936’s repeal would have deleterious consequences on the island’s economy and hence strongly opposed its elimination; but some favored 132 hence the term “nuyorican” to refer to those puerto ricans born and raised in new york since then. though the term may have been used pejoratively at some point, i do not believe that to be the case today, if ever. 133 scott greenberg & gavin ekins, tax policy helped create puerto rico’s fiscal crisis (june 30, 2015), http://taxfoundation.org/blog/tax-policy-helped-create-puerto-rico-s-fiscalcrisis [https://perma.cc/a5vd-ruhf]. 134 puerto rico and possession tax credit, pub. l. no. 94-455, title x, § 1051(b), 90 stat. 1643 (codified as amended at 26 u.s.c. § 936 (2014)). 135 see larry rohter, puerto rico fighting to keep its tax breaks for businesses, n.y. times (may 10, 1993), http://www.nytimes.com/1993/05/10/business/puerto-rico-fighting-to-keepits-tax-breaks-for-businesses.html?pagewanted=all [https://perma.cc/bn7k-samy]. 116 columbia journal of race and law [vol. 7:1 it anyway.136 even more prevalant than the criticism of § 936 as corporate welfare, was the call from pro-statehood puerto ricans to eliminate § 936 simply because it treated puerto rico differently than states. in 1996, president clinton signed the small business job creation act, which phased out § 936 over a period of ten years.137 puerto rican subsidiaries of united states businesses became subject to the same federal corporate income tax as any other subsidiary in 2006.138 since the phase out of § 936 and the signing of several important free-trade agreements between the united states and other nations, puerto rico’s economy has fallen into a deep recession. the dominance of big american corporations in most industries suppressed any possibility of an autochthonous economy to fill the void after § 936’s repeal. while the tax base became smaller, the commonwealth government continued to issue debt in order to function. in 1917, congress determined that commonwealth municipal bonds could not be taxed by either federal, state, or territorial governments,139 and investors kept buying them regardless of the island’s financial downturn. according to official numbers, the commonwealth’s deficit for the 2013–14 fiscal year reached $650 million.140 the combined deficit of the three main public utilities in fiscal year 2012–13 was approximately $800 million, and their overall combined debt reached $20 billion.141 in order to address this reality, in june 2014, the puerto rican legislature enacted the puerto rico public 136 id. 137 small business job creation act of 1996, pub. l. no. 104-188, 110 stat. 1755. 138 id. 139 act of mar. 2, 1917, ch. 145, § 3, 39 stat. 953 (codified as amended at 48 u.s.c. § 745 (1917)). 140 brief for the commonwealth at 5–6, franklin cal. tax-free trust v. puerto rico, 805 f.3d 322 (2015) (no. 15-233). 141 id. no. 2:80] puerto rico before the u.s. supreme court 117 corporations debt enforcement and recovery act,142 which established a mechanism that would allow its public utilities to restructure their debt.143 creditors were not happy, and they challenged the statute in federal court the very day it was signed into law.144 b. the case in federal court 1. the district court two groups of investors holding nearly two billion dollars in bonds issued by the puerto rico electrical power authority (“prepa”) filed separate suits against the commonwealth, the puerto rico government development bank (“gdb”), and several commonwealth officials, seeking declaratory judgment that the recovery act was unconstitutional.145 they argued, primarily, that § 903(1) of chapter 9 of the bankruptcy code preempted the recovery act.146 the main issue can be simplified as follows: congress enacted the bankruptcy code,147 pursuant to its bankruptcy 142 2014 p.r. laws act no. 71 [hereinafter “recovery act”]. 143 harvard law review, puerto rico public corporation debt enforcement and recovery act, 2014 p.r. laws act no. 71, 128 harv. l. rev. 1320, 1320 (2015). 144 franklin cal. tax-free trust v. puerto rico, 805 f.3d 322 (2015). 145 id. 146 id. at 324–25. collectively, they also brought contract clause and takings clause claims, as well as challenges to the recovery act’s provisions that allow stays of federal court proceedings when a public corporation files for debt relief under the act. although the district court reached the merits of these other claims, ruling mostly against the commonwealth, the first circuit did not address them in view of its holding on the preemption question. because they were not part of the case before the united states supreme court, they are irrelevant for purposes of this article. id. 147 bankruptcy reform act of 1978, pub. l. no. 95-598, 92 stat. 2549 (codified as amended at 11 u.s.c. (2010)). 118 columbia journal of race and law [vol. 7:1 power under the constitution.148 the code prohibits states from filing for bankruptcy.149 chapter 9 of the code, however, allows states to authorize their “municipalities,” i.e., political subdivisions, public agencies, or instrumentalities of a state, to restructure their debt under that chapter. since the bankruptcy code was amended in 1984, the code’s general definition of ‘‘state’’ expressly includes puerto rico, “except for the purpose of defining who may be a debtor under chapter 9.”150 thus, it is undisputed that puerto rico’s municipalities, including prepa, are excluded from filing for bankruptcy under chapter 9. the question is whether puerto rico’s exclusion from chapter 9 in 1984 means that congress intended the commonwealth to be able to “fill the gap” by creating its own debt-restructuring mechanism for its municipalities—as the commonwealth argued—or whether congress intended to prohibit puerto rico from authorizing chapter 9 relief or any other debt-restructuring mechanism— as the plaintiffs argued. the district court held that the recovery act in its entirety was void pursuant to the supremacy clause of the united states constitution.151 judge francisco a. besosa concluded that, by enacting § 903(1), congress expressly preempted state laws that prescribe a method of composition of municipal indebtedness that binds nonconsenting creditors.152 because § 101(52) of the code provides that the term “state” includes puerto rico, and the recovery act would prescribe a method of composition of commonwealth municipal indebtedness that would bind nonconsenting 148 “the congress shall have power . . . [t]o establish . . . uniform laws on the subject of bankruptcies throughout the united states.” u.s. const. art. i, § 8, cl. 4. 149 11 u.s.c. § 903(1) (2010). 150 bankruptcy amendments and federal judgeship act of 1984, pub. l. no. 98-353, § 421(j)(6) (codified as amended at 11 u.s.c. § 101(52) (2016). 151 franklin cal. tax-free trust v. puerto rico, 85 f. supp. 3d 577, 583 (d.p.r. 2015). 152 id. at 596. no. 2:80] puerto rico before the u.s. supreme court 119 creditors, the court mechanically concluded that the statute could not survive.153 according to the court, the case was not a close one.154 2. the first circuit the first circuit unanimously affirmed the lower court’s conclusion that § 903(1) of the bankruptcy code preempted the recovery act.155 through judge sandra l. lynch, the majority explained that whether § 903(1) preempts the recovery act turns on whether the definition of “state” in the federal bankruptcy code—as amended in 1984—renders § 903(1)’s preemptive effect inapplicable to puerto rico.156 the court held that it did not.157 the court rejected what it deemed the commonwealth’s “structural argument” that § 903(1) could not itself preempt puerto rico laws because it is a proviso to a provision within a chapter that does not apply to puerto rico.158 in the court’s view, however, “[t]he terms of § 101(52) do not exclude puerto rico municipalities from federal relief; rather, they deny to puerto rico the authority to decide when they might access it.”159 but the appellate court did not stop there, also holding that conflict preemption principles would invalidate the recovery act regardless of whether § 903(1) expressly did so.160 the court continually emphasized puerto rico’s constitutional status as a territory of the united states subject to congress’s plenary powers, something that it had 153 id. at 601. 154 id. 155 franklin cal. tax-free trust v. puerto rico, 805 f.3d 322 (1st cir. 2015). 156 id. at 325. 157 id. at 337. 158 id. at 338. 159 id. at 343. 160 id. at 343–34. 120 columbia journal of race and law [vol. 7:1 been extremely reluctant to do since the creation of the commonwealth. for example, it rejected the commonwealth’s claim that the canon of constitutional avoidance weighed against preemption in this case because that interpretation would raise a constitutional question under the tenth amendment, easily concluding that “the limits of the tenth amendment do not apply to puerto rico, which is ‘constitutionally a territory,’ because puerto rico’s powers are not ‘[those] reserved to the states’ but those specifically granted to it by congress under its constitution.”161 thus, with unambiguous language supported by a subtle citation to torruella’s concurrence, the first circuit seemed to signal that it, too, would have disregarded its holding in lópez andino and held that the commonwealth lacked sovereignty for double jeopardy purposes if the issue had reached the court again. the court admitted that the legislative history was “silent as to the reason for the exception set forth in the 1984 amendment,”162 yet had no trouble suggesting that the silence cut against the commonwealth, speculating that: one apparent possibility concerns the different constitutional status of puerto rico. because of this different status, the limitations on congress’s ability to address municipal insolvency in the states discussed above are not directly applicable to puerto rico. accordingly, congress may wish to adopt other—and possibly better—options to address the insolvency of puerto rico municipalities that are not available to it when addressing similar problems in the states.163 161 franklin cal. tax-free trust, 805 f.3d at 344–45 (citing united states v. lópez andino, 831 f.2d at 1172 (1st cir. 1987) (torruella, j., concurring)). 162 id. at 337. 163 id. (internal citations omitted). no. 2:80] puerto rico before the u.s. supreme court 121 and to make matters clearer, the court added that their statutory construction: is consistent with a congressional choice to exercise such other options ‘pursuant to the plenary powers conferred by the territorial clause.’ if puerto rico could determine the availability of chapter 9 for puerto rico municipalities, that might undermine congress’s ability to do so. similarly, congress’s ability to exercise such other options would also be undermined if puerto rico could fashion its own municipal bankruptcy relief. the 1984 amendment ensures that these options remain open to congress by denying puerto rico the power to do either.164 judge torruella again issued an important concurring opinion for purposes of this article. he agreed that the recovery act contravened § 903(1) of the bankruptcy code and thus could not survive.165 however, the concurring judge went much further, holding that the 1984 amendment, by which puerto rico was included as a “state” but excluded from chapter 9 relief, was also unconstitutional—an argument that the commonwealth did not have reason to advance because it was seeking to uphold the validity of its own statute and its municipalities never filed for chapter 9 relief.166 thus, the pro-statehood judge would have applied federal law as it existed prior to the 1984 amendments to grant puerto rico the opportunity to allow its municipalities to participate in chapter 9 proceedings. like chief justice fiol matta in sánchez valle, the case was too significant for torruella to simply agree with one side while leaving other important questions unanswered, even if it meant invalidating a federal 164 id. (internal citations omitted). 165 id. (torruella, j., concurring). 166 id. 122 columbia journal of race and law [vol. 7:1 provision whose constitutionality no party directly challenged. in the last part of his opinion, entitled “the ‘businessas-usual’ colonial treatment continues,” judge torruella accused the united states of engaging in blatant colonialism: the majority’s disregard for the arbitrary and unreasonable nature of the legislation enacted in the 1984 amendments showcases again this court’s approval of a relationship under which puerto rico lacks any national political representation in both houses of congress and is wanting of electoral rights for the offices of president and vice-president. that discriminatory relationship allows legislation—such as the 1984 amendments—to be enacted and applied to the millions of [united states] citizens residing in puerto rico without their participation in the democratic process. this is clearly a colonial relationship, one which violates our constitution and the law of the land as established in ratified treaties. given the vulnerability of these citizens before the political branches of government, it is a special duty of the courts of the united states to be watchful in their defense. as the supreme court pronounced in united states v. carolene products co., “prejudice against . . . insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”167 i am sorry to say this special duty to perform a ‘more searching inquiry’ has been 167 304 u.s. 144, 152 n.4 (1938). no. 2:80] puerto rico before the u.s. supreme court 123 woefully and consistently shirked by this court when it comes to puerto rico, with the majority opinion just being the latest in a series of such examples. when the economic crisis arose, after considering congress’s cryptic revocation of puerto rico’s powers to manage its own internal affairs through the 1984 amendments, puerto rico looked elsewhere for a solution. it developed the recovery act enacted pursuant to the police powers this very court had sustained, to fill the black hole left by the 1984 amendments introducing of the definition now codified in § 101(52). and while i agree with the majority that puerto rico could not take this step because [c]hapter 9 applies to puerto rico in its entirety, i commend the commonwealth for seeking ways to resolve its predicament. even if one ignores the uncertain outcome of any proposed legislation, questions still remain: why would congress intentionally take away a remedy from puerto rico that it had before 1984 and leave it at the sole mercy of its creditors? what legitimate purpose can such an action serve, other than putting puerto rico’s creditors in a position that no other creditors enjoy in the united states? while favoring particular economic interests—i.e., puerto rico creditors—to the detriment of three-and-half million [united states] citizens, is perhaps ‘business as usual’ in some political circles, one would think it hardly qualifies as a 124 columbia journal of race and law [vol. 7:1 rational constitutional basis for such discriminatory legislation.168 though strongly denouncing colonialism, torruella never referred to puerto rico as a nation, instead continually stressing the importance of safeguarding the rights of the “three-and-a-half million [united states] citizens residing therein.” c. the case before the united states supreme court the commonwealth filed its petition for writ of certiorari in the united states supreme court on august 25, 2015, which the court granted on december 4, 2015. even after the federal government filed its brief in sánchez valle, it was unclear which position the obama administration would assume in this second case. as it turned out, the obama administration did not take a position. the department of justice did not appear before the court as an intervenor or an amicus in favor of either party. instead, while the case was briefed, argued, and submitted, the third branch of the federal government showed up. in april 2016, the committee on natural resources of the house of representatives169 introduced “a bill to establish an oversight board to assist the government of puerto rico, including its instrumentalities, in managing its public finances, and for other purposes,” called the puerto rico oversight, management, and economic stability act 168 franklin cal. tax-free trust, 805 f.3d at 355–56 (emphasis added) (internal citations omitted). 169 in yet another “peculiar” aspect of the relationship between puerto rico and the united states, the house committee on natural resources is in charge of handling matters regarding the island. see staff of h. comm. on natural resources, rule x of the rules of the u.s. house of representatives, 114th cong., http://naturalresources.house.gov/about/jurisdiction.htm [https://perma.cc/d5kp-4cxa]. no. 2:80] puerto rico before the u.s. supreme court 125 (“promesa,” quite insultingly).170 after the junta-imposing promesa was introduced,171 many believed that the court would delay issuing an opinion because the bill could moot the case if congress passed any chapter 9-like process. in a strange “coincidence,” the same day in which the court decided sánchez valle to disperse any lingering doubts as to the commonwealth’s lack of sovereignty as a united states territory,172 the house of representatives passed promesa expressly relying on congress’s plenary powers under the territorial clause.173 the court decided puerto rico v. franklin california tax-free trust on the following scheduled opinion day, affirming judgment by a five to two vote.174 in an opinion by justice clarence thomas, the court found that “[t]he plain text of the bankruptcy code begins and 170 puerto rico oversight, management, and economic stability act of 2016 (promesa), h.r. 4900, 114th cong. (2016). 171 although it does much more than that, promesa imposes a fiscal control board (“junta de control fiscal”), whose members, unelected by puerto ricans, would have authority to rule over the island unrestricted by the commonwealth constitution. it is the first time that congress has attempted to directly govern puerto rico’s “internal affairs” since the creation of the commonwealth. id. 172 on june 9, 2016, the author had the “privilege” of being present when the court reiterated that puerto rico remained a territory subject to congress’s plenary powers during the morning and when the house used that plenary power to impose a junta over “its property” during the afternoon. 173 the senate passed promesa on june 29, 2016. see promesa, s. 2328, 114th cong. (2d sess. 2016). president obama signed it into law the following day. see promesa, pub. l. no. 114-187. on august 31, 2016, the president announced the members of promesa’s junta and thus single-handedly appointed puerto rico’s new government: andrew g. biggs; josé b. carrión iii; carlos m. garcía; arthur j. gonzález; josé r. gonzález; ana j. matosantos; and david a. skeel, jr. the junta became effective the next day. it met for the first time on september 30, 2016, in wall street, and elected josé b. carrión iii as its president. 174 puerto rico v. franklin cal. tax-free trust, 136 s. ct. 1938 (2016). 126 columbia journal of race and law [vol. 7:1 ends” the analysis.175 because the code’s definition of “state” includes puerto rico176 and the recovery act is a statute prescribing a method of composition of indebtedness that may bind nonconsenting creditors, the court concluded that the recovery act could not survive. “by excluding puerto rico ‘for purposes of defining who may be a debtor under chapter 9,’” the majority explained, “the code prevents puerto rico from authorizing its municipalities to seek chapter 9 relief,” “[b]ut puerto rico remains a ‘state’ for other purposes of chapter 9, including that chapter’s pre-emption provision.”177 “had congress intended to alter this fundamental detail of municipal bankruptcy,” the court asserted, “we would expect the text of the amended definition to say so. congress, does not, one might say, hide elephants in mouseholes.”178 the court was not persuaded by the commonwealth’s structural argument that it would be “nonsensical” to hold that a provision contained in a chapter of the code that “does not apply” to puerto rico nonetheless preempts one of its statutes. the court replied saying that the argument “rests on the faulty assumption that puerto rico is, ‘by definition,’ excluded from chapter 9” when “it is not.”179 the court never referred to puerto rico as a nation. instead, it reiterated for the second time in five days what it had been reluctant to express clearly for decades: puerto rico remained a territory of the united states uninterruptedly since 1898.180 the term “colony” was also absent from the opinion. judge torruella’s accusations of colonialism were 175 id. at 1946. 176 11 u.s.c. § 101 (2016). 177 franklin cal. tax-free trust, 136 s. ct. at 1942. 178 id. at 1947 (brackets and internal citations omitted). 179 id. at 1941. 180 id. at 1945 (“the third provision of the bankruptcy code at issue is the definition of ‘state,’ which has included puerto rico since it became a territory of the united states in 1898”). no. 2:80] puerto rico before the u.s. supreme court 127 simply ignored, just like his call to invalidate the 1984 simultaneous inclusion-exclusion of puerto rico for chapter 9 purposes.181 justice sotomayor issued a dissenting opinion, which justice ginsburg joined. in their view, “[t]he structure of the code and the language and purpose of § 903 demonstrate that puerto rico’s municipal debt restructuring law should not be read to be prohibited by chapter 9.”182 read “in context,” sotomayor found, “section 903 by its terms presupposes that chapter 9 applies only to states who have the power to authorize their municipalities to invoke is protection” and “[b]ecause puerto rico’s municipalities cannot pass through the § 109(c) gateway to chapter 9, nothing in the operation of a chapter 9 case affects puerto rico’s control over its municipalities.”183 responding to the majority’s assertion that “congress ‘does not, one might say, hide elephants in mouseholes,’” sotomayor accused the court of ignoring “that congress already altered the fundamental details of municipal bankruptcy when it amended the definition of ‘state’ to exclude puerto rico from authorizing its municipalities to take advantage of chapter 9” without even explaining why it did so.184 in her view, then, it is undisputed that congress did hide an elephant in a mousehole; the question is what it intended by doing so. “finding pre-emption here,” she concluded, “means that a government is left powerless and with no legal process to help its 3.5 million citizens.”185 the dissent did not use the words “nation” or “colony” either, nor did it refer to those 3.5 million citizens as an insular minority of united states citizens who just so happen 181 franklin cal. tax-free trust v. puerto rico, 805 f.3d 322, 346 (1st cir. 2015) (torruella, j., concurring) 182 id. at 1949. (sotomayor, j., dissenting). 183 id. at 1952, 184 franklin cal. tax-free trust, 136 s. ct. at 1953. 185 id. at 1954 (emphasis added). 128 columbia journal of race and law [vol. 7:1 to inhabit an unincorporated territory belonging to the united states congress. in fact, the term “territory” did not make it into justice sotomayor’s opinion. iv. solidifying constitutional colonialism: the interplay between legal fiction and social reality the combination of these two decisions illustrates perfectly why puerto rico remains a 21st century colony of the united states. because of the unique test used in sánchez valle to determine whether a jurisdiction is worthy of recognition as a sovereign under the dual sovereignty doctrine, i.e., whether that jurisdiction derives its powers from the same ultimate source, the court could not—or did not want to—adopt the “puerto-rico-is-kind-of-like-a-state” rationale that many courts usually employ to avoid the status issue. instead, the court directly addressed the great historical question and rejected the commonwealth supporters’ claim, stating as clearly as it ever has that “[t]he island’s constitution, significant though it is, d[id] not break the chain.”186 and because this is so, it was not difficult to predict that the court would reject the commonwealth’s “congress-could-not-possibly-have-intended-this” claim in franklin california tax-free trust. the court’s response was straightforward: congress could and it did because puerto rico is a territory and as such is subject to its plenary powers. and that, through a bill that supersedes the commonwealth’s non-sovereign constitution, congress was already taking action to handle puerto rico’s municipal debts. if one adopts a more cynical (perhaps a “realist approach” would be more fair) view of the court’s way of deciding controversies, it is not difficult to understand the outcome of these cases. by telling commonwealth supporters that they indeed fell for a “monumental hoax”187 in 1952 in 186 sánchez valle, 136 s. ct. at 1867. 187 figueroa, 232 f.2d at 620. no. 2:80] puerto rico before the u.s. supreme court 129 sánchez valle, conservative justices solidified congress’s power to do with the territories whatever it wants, while liberals expanded a constitutional protection for criminal defendants in puerto rico. especially considering the position of the united states, a “government liberal” like justice kagan was not likely to vote differently; neither was a more “activist liberal” like justice ginsburg. this view is buttressed by the concurrences: justice thomas would deny recognition as a sovereign to indian tribes, as well, while justice ginsburg would overrule the whole dual-sovereignty doctrine altogether. since oral argument, it was clear that justice sotomayor was sympathetic to the commonwealth’s argument. though she could be characterized as much an “activist liberal” as justice ginsburg, she could not ignore the significance of the court’s reasoning over the puerto rican people’s right to organize themselves as a political entity. thus, criminal defendants’ rights would have to suffer this time, even if one would expect her to join justice ginsburg if the court ever revisited the dual-sovereignty doctrine. and justice breyer, perhaps the court’s quintessential “government liberal,” also voted as one would have expected in the first case. as a first circuit judge from 1980 to 1994,188 no other justice has dealt with more cases arising from puerto rico. during that period, thenchief judge breyer certainly subscribed to what torruella called the first circuit’s “long-lasting commonwealthendorsing caselaw.”189 once the collective right of the people of puerto rico versus the individual rights of criminal defendants dichotomy is taken out of the picture in franklin california tax-free trust, the justices’ votes are even easier to predict, notwithstanding justice scalia’s departure and justice alito’s 188 then-chief judge breyer was succeeded by judge torruella. 189 franklin cal. tax-free trust, 805 f.3d at 346. 130 columbia journal of race and law [vol. 7:1 recusal from the case.190 conservatives voted to protect bondholders—the overwhelming majority of which are americans—based on the statute’s clear text; “government liberals” joined them because the law was simply too clear to ignore, even though the fiscal and economic consequences on the puerto rican people would be disastrous, thus implicitly siding with the conspicuously missing united states; and the more “activist liberals” dissented based on the statute’s structure, context, and consequences over the people of puerto rico and in favor of creditors. analyzed together, sánchez valle and franklin california tax-free trust are two sides of the same ugly coin; two nails in the commonwealth’s coffin. only because of the former’s holding can the latter’s holding be so easily reached. in other words, because the court continues to view puerto rico as a mere possession of congress subject to its plenary powers (cause), the fact that a federal statute expressly denied the commonwealth the opportunity to do what any sovereign country or any state of the union can, is legally irrelevant (effect). to be sure, the court did include seemingly commonwealth-endorsing language in sánchez valle. for example, the court stressed that “for double jeopardy purposes,” it “asks a narrow, historically focused question” and that “[t]he inquiry does not turn, as the term ‘sovereignty’ sometimes suggests, on the degree to which the second entity is autonomous from the first or set its own political course.”191 it also stated that “[t]ruth be told . . . ‘sovereignty’ in this context does not bear its ordinary meaning”192 and that “the 190 it is widely believed that justice alito held puerto rico bonds and thus decided to recuse himself to avoid a conflict of interest. see greg stohr & michelle kaske, scalia, alito court absences shape puerto rico debt-relief bid, bloomberg politics (march 21, 2016), http://www.bloomberg.com/politics/articles/2016-03-21/scalia-alito-courtabsences-shape-puerto-rico-debt-relief-bid [https://perma.cc/uk6x-rdpx]. 191sánchez valle, 136 s. ct. at 1867. 192 id. at 1870. no. 2:80] puerto rico before the u.s. supreme court 131 inquiry [despite its label] does not probe whether a government possesses the usual attributes, or acts in the common manner, of a sovereign entity”193 and that “puerto rico today has a distinctive, indeed exceptional, status as a self-governing commonwealth,”194 even going as far as saying that “the united states and puerto rico have forged a unique political relationship, built on the island’s evolution into a constitutional democracy.”195 i do not doubt that some people will hang on to these remarks for the proposition that the commonwealth is not yet dead, or that the court could use them to resuscitate it by resorting to the usual “puerto-rico-is-sort-of-like-a-state” argument, should it be necessary in a future case. but the court’s and the united states government’s actions speak louder than its words, and, in these cases, some words speak much louder than others. what other questions need be answered before one can conclude that puerto rico is a colony of the united states, if one accepts, as the court correctly concluded, that puerto rico’s constitution “[did] not break the chain”196 or that its ultimate source of power “[lies] in federal soil”?197 in what world can a jurisdiction be both a constitutional democracy and an unincorporated possession subject to the plenary powers of a legislative assembly in which that jurisdiction’s members are not represented? only in the fictional world of the insular cases. professor efrén rivera ramos brilliantly explained that, through the insular cases, the united states supreme court created a new “discursive universe” in order to legitimize united states expansionism at the turn of the 20th 193 id. 194 id. at 1874 (emphasis added). 195 id. at 1868. 196 id. at 1876. 197 sánchez valle, 136 s. ct. at 1868. 132 columbia journal of race and law [vol. 7:1 century.198 the same ideas of american superiority and white supremacy that gave us dred scott v. sandford199 and plessy v. ferguson200201 led the court to construct a “legal identity” for “porto rico” and “its inhabitants” that never coincided with the island’s social reality or that of its people. in keeping with this legal fiction, the united states reports would never reflect that the united states invaded puerto rico on july 25, 1898 to take military control of the island, after spain allegedly bombed the u.s.s. maine. instead, they would state that, on december 10, 1898, spain “ceded” its colonies—puerto rico, guam, and the philippines—to the united states in exchange for $20 million.202 as justice kagan stated in puerto rico v. sánchez valle, the treaty that secured this deal also “tasked congress with determining ‘[t]he civil rights and political status’ of 198 see rivera ramos, supra note 66, at 127. 199 dred scott v. sandford, 60 u.s. 393 (1857) (holding that black persons were not, and could never be, u.s. citizens because the framers never considered them part of “the people of the united states,” and that the federal government had no power to regulate slavery in the federal territories acquired after the creation of the united states) superseded by constitutional amendment, u.s. const. amend. xiii-xiv. 200 plessy v. ferguson, 163 u.s. 537 (1896) (upholding the constitutionality of state laws requiring racial segregation in public facilities under the “separate but equal” doctrine), overruled by brown v. bd. of educ., 347 u.s. 483 (1954). 201 several commentators have noted the correlation between plessy and the insular cases. see, e.g., torruella, supra note 66. much less has been written, however, about the correlation between the insular cases and dred scott, which i believe is more enlightening. the latter not only spoke extensively about the territories, but its treatment of black people as property is more similar to the treatment of puerto rico as a mere possession, than is plessy’s separate-but-equal fiasco, on which prostatehood commentators who conceive themselves as americans like to rely. see, e.g., the enduring legacy of plessy v. ferguson in puerto rico, puerto rico report (feb. 7, 2013), http://www.puertoricoreport.com/the-enduringlegacy-of-plessy-v-ferguson-in-puerto-rico/ [https://perma.cc/9f4f-h7rl]. 202 sánchez valle, 136 s. ct. at 1868. no. 2:80] puerto rico before the u.s. supreme court 133 [puerto rico’s] inhabitants.”203 the fact that puerto ricans took no part in this real estate transaction did not matter.204 but because the united states could not have colonies, of course, what was a european colony one day magically turned into an “unincorporated territory” overnight. its people would never be referred to as a latin american nation, but as mere “inhabitants.” through the “territorial clause,” which grants congress power to “dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states,”205 the court would constitutionally legitimize the “acquisition” (by conquest and purchase) of “distant possessions”206 and the political and legal subordination of the “alien races”;207 “alien and hostile people”;208 and “distant ocean communities of a different origin and language from those of our continental people”209 that inhabited them.210 203 id. (quoting treaty of peace between the united states and spain, spain-united states, art. 9, dec. 10, 1898, 30 stat. 1759 (1898)). 204 ironically, in order to assuage the cuban independence movement, which was in the middle of its second independence war against spain, in 1897 the european power had “granted” the carta autonómica to both islands, under which puerto ricans had more representation in the spanish legislative body than we have ever had in congress. see josé trías monge, puerto rico: the trials of the oldest colony in the world (1997). 205 u.s. const. art. iv, § 3, cl. 2 (emphasis added). 206 downes, 182 u.s. at 282. 207 id. at 287. 208 id. at 308. 209 balzac, 258 u.s. at 311. 210 perhaps no one has explained the court’s treatment of puerto rico and puerto ricans in the insular cases more eloquently than the attorney general of the united states in downes: we must not forget that “territory belonging to the united states” is the common property of the united states and is to be administered at the common expense and for the common benefit of the states united, who jointly, as a governing entity, own it. 134 columbia journal of race and law [vol. 7:1 not one justice questioned the legitimacy of the exercise of united states sovereignty over puerto rico, even though they themselves recognized that puerto ricans had never consented to it. instead, the original divide was between those justices who would have “annexed” the acquired property completely, thus granting (never “imposing”) the new “dependent peoples” all the protections of the constitution, and those justices who strongly feared the consequences of such action. ultimately, the latter group won and the “unincorporated territory”—nowhere found in the constitution—was invented. justice brown explained the court’s rationale as follows in downes: it is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production, which may require porto rico [sic] and the philippines were not won by arms and taken over by treaty through the effort or influence or at the expense of its inhabitants, but through the might of the united states, upon their demand and upon their contribution of $20,000,000 to spain, and upon the assumption by treaty of solemn national obligations which the united states, not the islands or their inhabitants, are bound to observe and keep. the inhabitants of the islands are not joint partners with the states in their transaction. the islands are “territory belonging to the united states,” not a part of the united states. the islands were the things acquired by the treaty; the united states were the party who acquired them, and to whom they belong. the owner and the thing owned are not the same. see rivera ramos, supra note 66, at 114 (quoting de lima, 182 u.s. at 102 (emphasis added)). no. 2:80] puerto rico before the u.s. supreme court 135 action on the part of congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native indians. . . . . a false step at this time might be fatal to the development of what chief justice marshall called the american empire. choice in some cases, the natural gravitation of small bodies toward large ones in others, the result of a successful war in still others, may bring about conditions, which would render the annexation of distant possessions desirable. if those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought, the administration of government and justice, according to anglo-saxon principles, may for a time be impossible, and the question at once arises whether large concessions ought not be made for a time that ultimately our theories may be carried out, and the blessings of a free government under the constitution extended to them.211 unfortunately, this legal fiction’s “constitutive effect”212 has not only gotten stronger over the years, but is also now the very “objective” source from which the executive, legislative, and judicial branches continue to justify the exercise of american sovereignty over puerto rico.213 indeed, though the 211 rivera ramos, supra note 66, at 112 (quoting downes, 182 u.s. at 282, 286–87). 212 id. at 121–42. 213 professor rivera ramos referred to the court’s methodological approach throughout the insular cases as “instrumental eclecticism”: 136 columbia journal of race and law [vol. 7:1 court did not mention them, these are the shameful precedents that sánchez valle and franklin california taxfree trust implicitly, but necessarily, validate. even without express racial and imperialist statements, the court’s interpretation of congress’s treatment towards puerto rico in sánchez valle is patronizing and disrespectful to puerto ricans. like their predecessors, the majority validated congress’s plenary power to do with puerto rico as congress wishes, based on an international treaty in which puerto ricans took no part. puerto rico is still not a nation in the united states reports. the court was very careful when referring to the island and its members. it is still safer, both politically and legally, to resort to phrases like “people of puerto rico” or the “citizens residing therein” because the limbo that is the territorial commonwealth does not clearly allow the unambiguous use of the terms “americans” (although “american citizens” is accepted as a legal reality) or “puerto ricans” (as a distinct national community under international law as opposed to merely persons residing on the island) when referring to the inhabitants of this particular land.214 the alternation from a predominantly instrumentalist and contextualized interpretative technique in the 1901 decisions to a largely formalist approach in the second group of cases and back to instrumentalism and contextualism in balzac provides a picture of a strategy of interpretation that is, ultimately, profoundly instrumentalist. in effect, this strategy of contextual selection of interpretative techniques—evident in those shifts as well as in the intermingling of approaches within some of the opinions themselves—can best be described as instrumental eclecticism. id. at 108 (internal citation omitted). 214 after all these years, it appears that the court still treats puerto rico as “foreign in the domestic sense.” christina duffy burnett & burke marshall, foreign in a domestic sense: puerto rico, american expansion, and the constitution 1 (2001). no. 2:80] puerto rico before the u.s. supreme court 137 absent from the court’s historical account in sánchez valle was that the island was under direct united states military rule from 1898 to 1900.215 the foraker act of 1900 would later “establish” (not “impose”) a civil government in which the united states president appointed the governor, the whole supreme court, and the upper house of the legislature.216 as the court correctly pointed out, “[f]ederal statutes generally applied in puerto rico.”217 the fact that puerto ricans never consented to such colonial subordination is still irrelevant to the court a century later. then came the jones act of 1917, by which “congress granted puerto rico additional autonomy” and “gave” (not “imposed” onto) “the island’s inhabitants united states citizenship” (without acknowledging any sort of puerto rican internationally-recognized citizenship) and “replaced the upper house of the legislature with a popularly elected senate.”218 puerto ricans took no part in this process either. and puerto rico would have to wait until 1947 to elect its own governor, when congress magnanimously “empowered the puerto rican people to elect their own governor, a right never before accorded in a [united states] territory.”219 finally, the court reached public law 600 of 1950 and the creation of the commonwealth of puerto rico through the adoption of its constitution on july 25, 1952, exactly fifty-four years after the united states navy invaded puerto rico in 215 to put things in perspective, the official military occupation of iraq after operation iraqi freedom in 2003 was followed by the establishment of the iraq interim governing council in 2004; less time than it took the u.s. military to establish a “civil” government in puerto rico in 1900. see kenneth katzman, cong. research serv., rl31339, iraq: u.s. regime change efforts and post-saddam governance (2004); library of congress, chronology of puerto rico in the spanish-american war, https://www.loc.gov/rr/hispanic/1898/chronpr.html [https://perma.cc/5d53kaus]. 216 sánchez valle, 136 s. ct. at 1868. 217 id. (emphasis added). 218 id. 219 id. 138 columbia journal of race and law [vol. 7:1 1898.220 amazingly, the majority in sánchez valle somewhat endorsed the traditional commonwealth-supporting discourse according to which puerto ricans supposedly consented, while rejecting its most basic premise: that it was an act of sovereignty through which the puerto rican nation engaged in a process of self-determination. indeed, the court had its cake and ate it too. the truth is that many puerto ricans did not participate in what they recognized as a hoax that would not alter the island’s legal subordination to congress.221 it is also true that the majority of puerto ricans who participated undoubtedly voted in favor of the constitution, and thus the creation of the estado libre asociado. 222 but what exactly did 220 july 25 is a very significant date in puerto rican history: united states forces invaded puerto rico on july 25, 1898; the commonwealth was created on july 25, 1952; and the cerro maravilla massacre occurred on july 25, 1978. the cerro maravilla massacre is the name given by the puerto rican public and media to the events that transpired that day at cerro maravilla, a mountain in puerto rico, wherein two young proindependence activists were murdered in a police ambush. the event sparked a series of political controversies where, in the end, the police officers were found guilty of murder and several high-ranking local government officials were accused of planning and/or covering up the incident. see laura rivera melendez, romero: mistake to call police “heroes” in cerro maravilla, http://www.puertoricoherald.org/issues/2003/vol7n38/romeromistake-en.html [https://perma.cc/ce5l-7jdm]. 221 according to report 82-1832 of the united states house of representatives, 41.61% of registered voters did not participate in the march 3, 1952 plebiscite to adopt or reject the commonwealth constitution. h.r. rep. no. 82-1832, at 1896 (1952). 222 the pdp and the statehood parties then in existence called for their supporters to vote in favor of the adoption of the constitution; the pip called for a vote to reject it. of those who participated, 81.88% voted in favor. pedro albizu campos and the nationalist party called on their followers to abstain and had even organized an armed insurrection less than two years earlier in order to denounce what they already perceived as another colonial organic charter. as one would expect the united states government to do in those circumstances, the rebellion was quickly suppressed and its followers both prosecuted and persecuted. thus, while the constitutional convention was taking place, not only did independence supporters boycott it, but many of their leaders were actually incarcerated. no. 2:80] puerto rico before the u.s. supreme court 139 they consent to? they consented to what the commonwealth argued in sánchez valle, which the court rejected. they consented to what they mistakenly believed was a [s]overeign creature unbound by congress’s plenary power to handle its internal affairs, not one that lacks sovereignty even to criminally prosecute its people; one that congress can mistreat statutorily by denying its municipalities the ability to restructure their debts; or one over which congress can impose promesa’s undemocratic junta notwithstanding its constitution’s text. and they consented under the impression that something different was going on. it was precisely that generalized mistaken understanding that moved the united nations to remove puerto rico from the list of nations that had not exercised their right to self-determination under international law in 1953 at the behest of the united states and commonwealth supporters.223 puerto ricans never freely consented to the commonwealth as described by the court. and even if that were not the case, it is undisputed that neither independence nor statehood was ever “offered” to the puerto rican people. thus, to use the approval of the constitution as an excuse to legitimize the exercise of american sovereignty over the 223 josé a. delgado, puerto rico’s case before the un, el nuevo día, http://www.elnuevodia.com/english/english/nota/puertoricoscasebeforetheu n-2212546/ [https://perma.cc/q5pk-nnef]. since 1953, independence supporters (and those who advocate for a sovereign commonwealth) have continually asked the decolonization committee of the united nations to intervene on the matter and to put puerto rico back on the “colonies list.” so have a few statehood supporters, albeit they prefer to look to congress for a solution. meanwhile, the united states has done nothing. in what is truly unprecedented, as soon as the united states filed its brief in sánchez valle, and again after the court issued its decision, governor alejandro garcía padilla, an avid commonwealth supporter of the most orthodox wing of the pdp, turned to the u.n. to denounce what he believed was a historical change of position by the united states in favor of pure colonialism. see also andre lee muñiz, puerto rico’s colonial case in the united nations, la respuesta (aug. 17, 2014), http://larespuestamedia.com/puerto-ricoscolonial-case-in-the-united-nations/ [https://perma.cc/qz7t-3fax]. 140 columbia journal of race and law [vol. 7:1 island is quite fantastic, considering that the commonwealth was nothing more than a take-it-or-leave-it offer that did not change congress’s authority over the island. under those circumstances, should commonwealth supporters—and puerto ricans in general—be faulted for preferring the enactment of a bill of rights and a constitution that would fictitiously grant them a greater level of autonomy and stronger individual rights over the more-direct colonial regime of the jones act of 1917? one would hardly think so. more importantly, even if those puerto ricans had happily consented to a non-sovereign, unincorporated territorial commonwealth (i.e., a colony), it is truly mindboggling how said “compact”—and, again, the court finally admitted that it was not—has been able to survive for more than six decades either under american constitutional law or under the most basic principles of human rights under international law. puerto rico is a colony not merely because puerto ricans, whether “foreign nationals” or “real americans,” have never in 118 years procedurally consented to such a degrading treatment in a congressionally-binding legal process,224 but also because puerto rico, and puerto 224 since 1952, congress has not taken any action with regard to the status of puerto rico. during the same period, there have been four referendums on the island. the (mistakenly-believed [s]overeign) commonwealth option won in 1967 and 1993. npp governor pedro rosselló gonzález attempted his second referendum in 1998, this time leaving out the commonwealth option that he believed colonial in nature. commonwealth supporters sued and the puerto rico supreme court, still “controlled” by pdp-appointed justices, ordered that a “none of the above” fifth column be added to the options. commonwealth supporters voted for that option, which was understood to be the (still-mistakenly-believed [s]overeign) commonwealth, and won the referendum. in 2012, npp governor luis fortuño passed yet another referendum, this time consisting of a two-part process: the first question asked whether one wished to maintain the island’s territorial status (in which the “no” won) and the second question asked one to choose between statehood, independence, and a sovereign nation in free association with the united states (in which “statehood” received the most votes). as usual, commonwealth supporters criticized the referendum as biased and did not acknowledge its results. after sánchez valle was decided, there has been no. 2:80] puerto rico before the u.s. supreme court 141 ricans, are substantively subordinated to the united states. federal regulations apply in puerto rico exactly as if it were a state of the union, but puerto ricans do not vote for the president or the vice president. the district court for the district of puerto rico interprets and applies federal law over puerto ricans (except when they “do not apply”) even though an executive that they do not elect appoints their judges. federal law applies today because congress said so a century ago, notwithstanding the fact that puerto ricans do not elect senators or representatives; instead, we elect one “resident commissioner” who sits on the house of representatives, but does not vote.225 no court in 2016 should continue to constitutionally validate such a degrading colonial relationship under the guise that it was consented to by some. v. breaking the chain: the role of the united states supreme court it is clear that the real problem underlying sánchez valle and franklin california tax-free trust is not merely puerto rico’s lack of [s]overeignty to criminally prosecute or congress’s different statutory treatment towards the island under the bankruptcy code, but the degrading colonial relationship between puerto rico and the united states that allows such constitutional and statutory discrimination. the solution is just as easily identifiable: the chain must be broken. and puerto ricans must break it under international law, not congress unilaterally or the court under american constitutional law. discussion within the pdp to propose still another internal referendum, this time to ask puerto ricans whether they want statehood, anticipating that a majority would answer no to that question. none of these plebiscites mean anything because none have ever been sanctioned by either congress or international bodies, and neither the npp nor the pdp have taken political action based on their results. 225 the resident commissioner can vote in house committees, but not for the approval of the final legislation. rules of the house of representatives, 114th cong., rule iii, § 675 (2015). 142 columbia journal of race and law [vol. 7:1 since i too hold some truths to be self-evident, no extensive discussion is warranted here to explain why puerto rico is sociologically a nation.226 it is “a nation without its own sovereign state,”227 but a nation nonetheless. “more to the point, it may be described as a nation in a relationship of political subordination to a metropolitan state.”228 in other words, puerto rico is cuba, not guantánamo bay naval base. the time has come for the court to acknowledge this sociological reality so that the correct legal conclusions can finally follow logically from the annals of the united states reports.229 226 on this topic, i must again defer to professor rivera ramos, who addressed it as follows: nations do not have essences, in the sense of immutable constitutive traits. nation is rather a sociocultural construct used to refer to certain collective phenomena, which usually consist of groups or communities of people with perceptible common characteristics and a sense among its members of belonging to the collectivity. beyond that basic notion, there may be great disagreement over the nature of the common elements necessary for a nation to be said to exist. there may also be discrepancies regarding the weight that should be accorded to so-called objective and subjective criteria. the debate may be of an academic nature. but, as the case of puerto rico shows, it is also a political polemic in which participants take positions influenced by their preferred visions of the community’s future. rivera ramos, supra note 66, at 11 (internal citations omitted). 227 id. at 13. 228 id. 229 on august 13, 2016, puerto rican tennis player mónica puig gave the island its first-ever olympic gold medal. each victory she obtained in río was followed closely and celebrated in puerto rico as a national holiday in and of itself. immediately after winning her championship match, puig stated as follows: “i think i united a nation.” puerto ricans of all walks of life rejoiced that night. later, thousands of puerto ricans filled the streets to welcome her at the airport upon her arrival and many more thousands skipped their jobs on a tuesday to attend the official celebration prepared by the government. such a reaction to puerto rican athletic no. 2:80] puerto rico before the u.s. supreme court 143 because this is so, the people of puerto rico must freely exercise their right to self-determination under the united nations’ declaration on the granting of independence to colonial countries and peoples of 1960 (resolution 1514(xv)).230 puerto ricans must do what spain and the united states have never legally allowed us to do and what performances, a cultural phenomenon that is not new in puerto rico, is best understood as a consequence of our collective need to affirm ourselves as a nation. see sandra lilley, “this is for them”: monica puig wins puerto rico’s 1st olympic gold, nbc news (aug. 12, 2016, 7:58 pm), http://www.nbcnews.com/news/latino/them-monica-puig-wins-puerto-ricos-1st-olympic-gold-n630156 [https://perma.cc/gm2z-5lnn]; lee moran, puerto rico loses it as monica puig wins island’s first-ever olympic gold, the huffington post (aug. 14, 2016, 4:36 am), http://www.huffingtonpost.com/entry/monica-puig-puerto-ricopicapower_us_57b01d95e4b007c36e4f09d2 [https://perma.cc/62de-6xfc]. it is fair to say that puerto ricans’ response had to do more with sociology and politics than sports, especially because of remarks made during the olympics by a former tennis player born and raised in puerto rico, beatriz “gigi” fernández, about the island’s choice of flag-bearer, a black man born in the dominican republic. fernández drew attention to herself by suggesting that those who criticized her decision to represent the united states in barcelona 1992 and atlanta 1996 instead of puerto rico were hypocrites if they supported puerto rico’s flag bearer. fernández won olympic gold for the united states in women’s doubles twice alongside mary joe fernández, herself born in the dominican republic. she was heavily criticized for her decision not to represent puerto rico. regardless of what one thinks about this issue, its relevance for purposes of this article is that it illustrates how the status question affects almost all aspects of puerto rican society and supports the notion that most puerto ricans, including those who favor statehood, conceive themselves, both consciously and subconsciously, as something other than americans. 230 eighty-nine nations voted in favor of resolution 1514(xv) on december 14, 1960, none voted against, and nine abstained: australia, belgium, dominican republic, france, portugal, spain, union of south africa, united kingdom, and united states. except for the dominican republic, then under the right-wing dictatorship of rafael leónidas trujillo molina, the rest of those countries that abstained were major colonial powers, including the united states. united nations, yearbook of the untied nations, 1960, 49–50 (1961). see also letter from president eisenhower to prime minister macmillan (dec. 10, 1960), in foreign relations of the united states, 1958-1960, western europe, vol. 8, pt. 2, document 384 (1993), https://history.state.gov/historicaldocuments/frus1958-60v07p2/d384 [https://perma.cc7enu-r37t]. 144 columbia journal of race and law [vol. 7:1 commonwealth supporters incorrectly believed that happened in 1952: freely decide our future as a political community based on the [s]overeignty that we do possess as a nation but which has been legally denied for centuries. congress’s role, then, should be limited to determining whether it will really accept puerto ricans’ will if we vote in favor of becoming a state of the union or instead immediately recognize the puerto rican people’s national sovereignty under international law. whether that sovereignty is then employed to remain an independent country, as that term is ordinarily understood, or to reach a truly sovereign economic or political agreement between two nations, through an internationally-recognized treaty binding on both parties, is a matter for puerto ricans to decide later and for the united states to ponder if the latter is preferred. but what can the court do in the meantime, if anything? as stated above, it should attempt to move the law closer to sociological reality. it must recognize that puerto rico is a nation and that puerto ricans must decide their future, not congress alone; that it was the executive that unilaterally took control of the island; that it was congress that unilaterally made puerto ricans american citizens; that it was the court itself that invented the “unincorporated territory” in order to justify congress’s plenary (colonial) powers over “porto rico” and “its inhabitants”; and that puerto ricans have never consented to such ridiculous treatment. thus, the court must finally revisit the insular cases. a harder question is what the court should replace the insular cases with. here, perhaps like on the national element, i part ways with statehood supporters like district judge gelpí and circuit judge torruella, to whom the answer is simple: treat puerto ricans “equally” to americans by fully applying the constitution. they have advocated for this “solution” in several ways, one of which is overruling the insular cases or at least modifying them to declare puerto rico an “incorporated” territory, something that many no. 2:80] puerto rico before the u.s. supreme court 145 commentators see as nothing more than a judiciallysanctioned path to statehood, in part because there has never been an incorporated territory that has not become a state.231 in franklin california tax free-trust, torruella also suggested that different treatment towards puerto rico should be subjected to some form of heightened scrutiny.232 though i share their sentiment that the full application of the american constitution in puerto rico is preferable to the who-knows-what-applies situation currently in place, under which the united states government both exercises its proclaimed sovereignty while it denies people who it determined were american citizens the full rights of the federal constitution, i believe the court should decline such invitations. their approach fails to acknowledge that many puerto ricans do not see themselves as americans, nor do they want to. thus, judicial “incorporation” in order to bring “equality” (again, with americans) conveniently ignores that many puerto ricans want, just as fervently, “equality” (with the rest of the nations of the world, including the united states itself). thus, the reasoning is as problematic as that of many liberals in congress who see promesa as a way to help puerto rico, ignoring the fact that no political party on the island supported that measure because the creation of a small, undemocratic junta over the puerto rican people is an insult. like all the justices in the insular cases, these proponents do not really take issue with the validation of the exercise of american sovereignty over puerto rico through a treaty in which puerto ricans never participated; they simply 231 see consejo de salud playa de ponce v. rullan, 586 f. supp. 2d 22 (d. p.r. 2008) (holding that, in view of the historical relationship between the united states and puerto rico, the latter has become an incorporated territory); but see igartúa-de la rosa v. united states, 417 f.3d 145 (1st cir. 2005) (en banc) (rejecting such a view over torruella’s dissent). see also saavedra gutiérrez, supra note 66 (advocating for the same). 232 franklin cal. tax-free trust, 805 f.3d at 354 (torruella, j., concurring). 146 columbia journal of race and law [vol. 7:1 would have sided with the initial minority that would have applied the constitution in its entirety. why such an approach would be less colonial in nature is beyond me. differentiation is not discrimination. the problem with the insular cases is the legal subordination of puerto rico, not its recognition as something other than the united states; 500 years of history show that it is. to suggest that equality within the union is the only way to treat puerto ricans with dignity under the law, and that courts should decide so, is disrespectful to the collective right of the puerto rican people to determine their future as a political community. even puerto ricans who see themselves as americans and would like the island to be the fifty-first state should not favor the imposition of a law to which puerto ricans never consented. just like independence advocates should not try to infuse the non-sovereign commonwealth with attributes of sovereignty that it clearly never had just to play republic, neither should statehood advocates just to feel they are in a state of the union. regardless, after the october 2015 term, attempts to constitutionally equate puerto rico with states, either because of the passage of time or otherwise, seem less likely to succeed than ever before. as justice kagan eloquently stated for the court, “there is no getting away from the past.”233 instead of moving the court to judicially “incorporate” puerto rico more and more, i would instead suggest a much more modest approach if it ever revisits the insular cases. besides dropping the euphemistic historical account unfortunately reiterated by the court in sánchez valle, the court should acknowledge that most of what was said in the insular cases is not really constitutionally-mandated, but invented at a time when the court’s members could not see beyond their bigoted ideas of american superiority and white supremacy. no deference should be given to those holdings. whether an avowed originalist or a critic, no justice should 233 sánchez valle, 136 s. ct. at 1876. no. 2:80] puerto rico before the u.s. supreme court 147 feel compelled to follow that doctrine, just like none would rely on dred scott’s or plessy’s rationale or statements. the court should use its newly-found flexibility in order to address responsibly the complexity of trying to apply american law, both constitutional and statutory, to a jurisdiction whose members, whether americans or not, have never consented to it; and especially consider whether it should have power to do impose it at all. it should not. unfortunately, fashioning a judicial remedy to this court-created conundrum is difficult. the puerto rican in me would ask the court to invalidate everything pursuant to international law or american constitutional principles (pub. law 600 and the territorial commonwealth; the jones act of 1917; the foraker act of 1900; and the treaty of paris of 1898 itself), under the basic principle that the united states cannot acquire nations without their consent and treat their people as second-class citizens for over one hundred years. on the other hand, the lawyer in me cannot find a more nonjusticiable political question than the one considered in this article. there may be alternatives for the short term, but not very good ones. the court could, for instance, expressly adopt some chevron-like deference with regard to cases coming from commonwealth courts.234 at least commonwealth judges are appointed and confirmed by persons elected by puerto ricans. in fact, the court had granted so few cases from puerto rico over the last sixty years that one wonders whether it had already internally adopted such an approach. but what to do with to the united states district court for the district of puerto rico, whose judges are appointed by a president, and confirmed by senators, the puerto rican 234 see chevron v. nat. res. def. council, inc., 467 u.s. 837 (1984) (holding that courts must defer to an agency’s reasonable interpretation of an ambiguous statute). 148 columbia journal of race and law [vol. 7:1 people do not vote for? and even if their decisions were not reviewable, should commonwealth judges have to apply federal law, either constitutional or statutory, even though puerto ricans do not participate in the federal (“national,” from an american perspective) political process? there is simply no way around it. unless the court rules that the united states government cannot exercise its unilaterally proclaimed sovereignty over puerto rico anymore, the solution must be political in nature. the court should at least assure that the decision not be taken for the puerto rican people through a court of law, whether federal or territorial. as a result of the island’s territorial status and its validation through the insular cases, questions of the utmost importance will continue to be addressed and answered by courts, and then undemocratically applied to puerto rico without its people’s consent or participation in the political arena. the most contentious questions in the united states, such as those dealing with abortion, gay marriage, campaign finance regulations, gun control, among many others, have already been answered for puerto ricans. whatever federalism concerns are usually involved in those cases, they are minimal compared to the problems that their imposition creates in puerto rico, regardless of whether one likes the particular outcome or not. in puerto rico, they are not recognitions of individual rights, but acts of pure colonialism. vi. conclusion the october 2015 term will go down in history as the most significant one for puerto rico-united states relations in more than a century. the united states supreme court opted to address the issues presented in a constitutional case arising from the commonwealth courts and a statutory case arising from the united states district court for the district of puerto rico, the answer to which directly related to one’s understanding of the nature of the political status between both nations. in doing so, the court set in motion a series of unprecedented actions that illustrate, now more clearly than no. 2:80] puerto rico before the u.s. supreme court 149 ever, why puerto rico legally remains a 21st century colony of the united states. unless puerto rico exercises its right to selfdetermination under international law through a process that legally forces the united states government to either allow puerto ricans to decide whether they wish to become a state of the union or recognize puerto rico’s full national sovereignty—completely removing the island from congress’s plenary powers under the territorial clause of the constitution—both commonwealth and federal courts will struggle to define how to apply american constitutional principles to a jurisdiction whose members have not even decided whether they are americans at all. until that day comes, attempts to reconcile puerto rico’s sociological reality with american federalism principles will continue to erode both american constitutionalism and the puerto rican people’s right to decide their political destiny on their own, solidifying america’s century-old constitutional colonialism over puerto rico. because it was the united states supreme court that invented the doctrine that unabashedly justified the legal discriminatory treatment of puerto rico while granting unlimited political power to congress without questioning the legitimacy of american rule over the island in the insular cases, the court should revisit this doctrine sometime in the future. when it does, however, it will have to deal with the repercussions of trying to decide legal questions that will produce obvious political repercussions over the puerto rican people. whatever decision the court ultimately makes to overturn one of the most shameful doctrines it has ever developed, it should be mindful that every single constitutional and statutory interpretation that it reaches based on american law will unavoidably constitute yet another act of colonialism when applied to a nation whose members have been denied participation and representation in the federation’s and in the international community’s political bodies. columbia journal of race and law forum vol. 11 june 2021 no. 2 closing remarks 10th annual symposium: how the law underdeveloped racial minorities in the united states alexis hoag on november 20–21, 2020, the columbia journal of race and law hosted a virtual two-day symposium entitled how the law underdeveloped racial minorities in the united states. broadly, the theory of underdevelopment looks at the standard of life in a nation as a measure of that country’s economic conditions. the application of this theory in the context of the law and as a measure of the quality of life of racial minorities stems from professor manning marable’s work on capitalism and the economic and social conditions of black americans. in her closing remarks, professor alexis hoag provided context for the contemporary application of professor marable’s theory in light of current events, exploring the coronavirus pandemic, the black lives matter movement, and the 2020 presidential election. she then introduced carceral abolition as a theoretical and practical framework to understand the law’s underdevelopment of black people and to help address the criminal legal system’s disparate impact on racial minorities.  alexis hoag, j.d., n.y.u. school of law, b.a., yale university. lecturer, columbia law school, practitioner-in-residence, eric h. holder jr. initiative for civil and political rights, columbia university. assistant professor of law, brooklyn law school, beginning july 2021. 34 colum. j. race & l. [vol. 11:33 i wanted to start by thanking the columbia journal for race and law for inviting me to deliver closing remarks at what is now the 10th annual symposium. i’m honored and humbled, particularly relative to the fantastic scholars and thinkers who participated last night and today. i especially want to recognize this year’s symposium organizers, jacob elkin, nicolas galvan, and last year’s, ibrahim diallo and amanda mcnally. ibrahim and amanda first approached me with their thoughts on manning marable’s powerful body of work1 in january 2020. they initially planned for a convening in early april of this year. however, it’s fitting that the symposium is occurring now, as the nation braces for the second wave of the coronavirus pandemic and in the wake of the presidential election. georgia, recently reconfirmed that yes, indeed, biden and harris won the electoral votes in that state.2 both events exposed longstanding structural damage to the nation’s foundation. damage that the law’s underdevelopment of segments of the population cemented. we continue to witness the lethal impact that covid-19 has had on under-resourced communities of color. due to generations of unequal access to health care, black people experience higher rates of the very illnesses that make them most susceptible to the coronavirus—diabetes, hypertension, and sickle cell disease. after the u.s. supreme court gutted the voting rights act of 2013, we continue to witness states like arizona, georgia, and texas close early polling locations most utilized by black and brown people. by almost every measure— health outcomes, education, access to wealth, and contact with the criminal legal system—the condition of racial minorities in the u.s., and black people in particular, is in a state of underdevelopment relative to white people. each of the speakers at this symposium has explored and interrogated the intertwined 1 dr. manning marable was a prominent political activist and scholar at columbia university, where he served as a professor of public affairs, political science, history and african-american studies. dr. marable was the founding director of the institute for research in african-american studies at columbia university. under dr. marable’s leadership, the institute became one of the nation’s most prestigious centers of scholarship on the black american experience. his posthumously published biography, malcolm x: a life of reinvention (2011), was awarded the 2012 pulitzer prize for history. 2 richard fausset, hand tally of georgia ballots reaffirms biden’s win, n.y. times, nov. 19, 2020, a16 (reporting on georgia’s statewide hand recount after president donald trump’s campaign challenged the initial results showing president-elect joseph biden won the election). 2021] closing remarks 35 relationship between the law and the underdevelopment of racial minorities. this is a powerful framework from which to hold these discussions. it both acknowledges the law’s central role in maintaining white supremacy and urges us to question the legal standards and norms that the law presents to us as neutral. over the next 15 or so minutes, i’d like to discuss three areas. first, i want to tie together some of the concepts raised throughout this symposium. secondly, i want to examine the law’s unfulfilled promise to deliver redress to black victims of state violence. and lastly, i’d like to end with an exploration of abolition as a theoretical framework to dismantle the law’s chokehold on black people and other racial minorities. i’d like to begin by picking up where this last panel ended. so, first, yesterday: professor kendall thomas3 in conversation with katharina pistor,4 recognized the role of the law in designing and maintaining an architecture of underdevelopment with respect to capital. we were introduced to professor pistor’s book, the code of capital,5 where she refers to the law as the cloth from which capital is cut. and if i may extend that metaphor, despite the labor of enslaved people to turn the cloth into goods, the law denied black people from reaping the benefit of those goods. professor thomas then explained that the law prevented people of color from availing themselves of the power and protections that the state offered. next, we heard from professor maeve glass,6 who examined underdevelopment in the context of property and contract law. professor conrad johnson7 and bruce ornstein8 shared personal accounts of how underdevelopment impacted 3 nash professor of law at columbia law school, focused on comparative constitutional law and human rights whose teaching and research focus on critical race theory, legal philosophy, feminist legal theory, and law and sexuality. 4 edwin b. parker professor of comparative law at columbia law school, focusing on corporate governance, money and finance, property rights, and comparative law and legal institutions. 5 katharina pistor, the code of capital: how the law creates wealth and inequality (2019). 6 associate professor of law at columbia law school, teaching and writing on the history of slavery in america, property, and constitutional law. 7 clinical professor at columbia law school, founder and director of the lawyering in the digital age clinic. 8 artist in residence at the samuel dubois cook center on social equity at duke university. 36 colum. j. race & l. [vol. 11:33 their families—one black, one white—access to educational opportunity, capital, and the accumulation of generational wealth. professor etienne toussaint9 explained that contract law served as a tool to legitimate the underdevelopment of black people. following emancipation, the government extended the “freedom” to contract to black people, many of whom—with no other options—bonded themselves into sharecropping contracts.10 today, we heard from sean ossei-owusu,11 who led a conversation on the criminal legal system’s underdevelopment of black people with professor bennett capers,12 rukia lumumba,13 and naima gregory.14 they reminded us that we cannot discuss inequality within the criminal legal system today, without first acknowledging the history of slavery, black codes, and jim crow. professor capers encouraged us to denaturalize the conduct that we consider criminal. rukia naima called upon us to reimagine public safety without propping up and legitimizing existing criminal law. next, i’d like to discuss the laws unfulfilled promise to black people as it relates to state violence. before emancipation the law generally did not recognize harmful acts committed against enslaved black people as crimes.15 property law provided one of the only available means of redress, enabling an enslaved person’s owner to collect compensation for damaged or lost 9 associate professor of law at the university of the district of columbia david a. clarke school of law, teaching and writing about community economic development, environmental justice, business law, legal ethics, and professional responsibility. 10 derrick bell, race, racism, and american law 48-52 (6th ed. 2008). 11 presidential assistant professor of law at the university of pennsylvania carey law school, focusing on legal history, criminal law and procedure, civil rights, and the legal profession. 12 professor of law and director of center on race, law & justice, at fordham law school, with a focus on race, gender, technology, and criminal justice. 13 transformative justice strategist, human rights activist, and the founder of the people’s advocacy institute in jackson, mississippi. 14 supervising attorney at the neighborhood defender service of harlem in new york, new york. 15 alexis hoag, valuing black lives: a case for ending the death penalty, 51 colum. hum. rts. l. rev. 983, 996-99 (2020) 2021] closing remarks 37 property (in the event of an enslaved person’s death).16 the law treated black victims as a legal invisibility.17 the same is not true for black perpetrators of violence. for even relatively minor infractions, and where the victim was white, the law punished black people with death.18 in this way, black lives did not matter in the eyes of the law. reconstruction, what columbia historian eric foner refers to as the nation’s “second founding,”19 had the power to change this. it recognized black people as citizens, and codified laws to prohibit the denial of their rights.20 yet, anti-black racism, derived from slavery, runs in the very dna of this country.21 the underdevelopment of racial minorities and white supremacy are what this nation was founded and expanded upon.22 notably, our constitution frames civil rights in the negative, rather than as a positive.23 the reconstruction amendments did not bestow new rights upon black people, rather they removed race—and the status as a formerly enslaved person—as a barrier to citizenship.24 and then prohibited others from preventing citizens from exercising their civil rights.25 but once citizenship included black people, the law permitted discretion and the development of jurisprudence to exclude black people from protection. reflecting on reconstruction, frederick douglass observed: “the arm of the federal government is long, but it is far too short to protect the 16 kenneth m. stampp, the peculiar institution: slavery in the ante-bellum south 96 (vintage books 1989) (1956). 17 see stephen carter, when victims happen to be black, 97 yale l.j. 420 (1988). 18 dorothy roberts, abolition constitutionalism, 133 harv. l. rev. 1, 38-40 (2019). 19 eric foner, the second founding: how the civil war and reconstruction remade the constitution (2019). 20 id. at 1-20. 21 nikole hannah-jones, our democracy’s founding ideals were false when they were written. black americans have fought to make them true., n.y. times mag. (aug. 14, 2019), https://www.nytimes.com/interactive/2019/08/14/magazine/black-historyamerican-democracy.html [https:// perma.cc/4grf-lvay]. 22 alexis hoag, abolition as the solution: redress for victims of excessive police force, 48 fordham urb. l. j. 721, 728 (2021). 23 erwin chemerinsky, lessons from gideon, 122 yale l.j. 2676, 2678 (2013). 24 hoag, supra note 23, at 729. 25 id. 38 colum. j. race & l. [vol. 11:33 rights of individuals in the interior of distant states.”26 the first supreme court case to test the reach of the civil rights act of 1866 and its federal authority was blyew v. united states.27 in 1866, two white men approached a cabin in kentucky. three generations of a black family lived there, including a 97year-old grandmother who was blind.28 when the family refused the men, they came back and slaughtered the family with an axe. the only witnesses to the crime were the survivors, all black.29 because kentucky law prohibited black people from testifying in court, the local us attorney—armed with the new federal civil rights act—removed the case from state court and tried it in federal court, securing convictions, and death sentences against those two white men.30 on appeal, the u.s. supreme court reversed, holding that the surviving witnesses were “not persons affected” under the law, and therefore, the lower court lacked jurisdiction to indict the defendants.31 since the “affected persons” were no longer alive, the federal court could not uphold their rights. the court’s early evisceration of the civil rights act of 1866 prevented it from being a viable tool to provide redress to black victims of state violence.32 notably, parts of the act today serve as the foundation for 18 u.s.c § 242, which is the criminal equivalent to section 1983. these two contemporary federal statutes are intended to provide redress when state actors violate the rights of black people. beginning with the court’s 1871 holding in blyew, and continuing today, the law has failed to fulfill this promise to black people. lastly, i teach a class on abolition,33 and i want to suggest carceral abolition as a tool to dismantle the law’s chokehold on black people. my comments on abolition are in 26 frederick douglass, reconstruction, atl. monthly, dec. 1866, at 50. 27 blyew v. united states, 80 u.s. 581 (1871). 28 id. at 589. 29 id. at 583. 30 robert d. goldstein, blyew: variations on a jurisdictional theme, 41 stan. l. rev. 469, 483-89 (1989). 31 blyew, 80 u.s. at 593. 32 hoag, supra note 23, at 730. 33 abolition: a social justice practicum, columbia law school, fall 2020, available at https://www.law.columbia.edu/academics/courses/26989 [https://perma.cc/9kdy-3e5j]. 2021] closing remarks 39 direct response to rukia and naima’s call to reimagine public safety. abolition is a theoretical framework that invites us to examine how this nation’s history of slavery, and the racial hierarchy that followed, helped shape today’s racialized carceral state.34 and it invites us to look to the future to imagine a society without a carceral focus on punishment. in a criminal law course, we would learn about abolition, right alongside other theories of punishment—retribution, rehabilitation, and incapacitation.35 abolition moves us away from prisons policing and prosecution, and invites us to think critically and dynamically, about the conditions that cause crime and inequality. abolition focuses on finding new restorative ways of addressing wrongdoing and insuring safety. this is not a new concept. the modern prison abolition movement coalesced 20 years ago with the formation of critical resistance36 and angela davis’s 2003 publication, are prisons obsolete?37 however these ideas have spread as lawmakers, scholars, organizers, and even lawyers, begin to question mass incarceration. and these ideas have spread to other disciplines outside of criminal law. as ruth wilson gilmore38 explains: “abolition is deliberately everythingist. it’s about the entirety of human environmental relations.”39 gilmore, a geographer by training, recognizes that prison abolition would force this country to address environmental toxins, employment and educational opportunities, childhood trauma, housing, and mental health resources.40 our reliance on prisons, jails, and detention centers is not a sustainable form of social organization. 34 hoag, supra note 23, at 735-38. 35 amna akbar & jocelyn simonson, rethinking criminal law, law & pol. econ. project, oct. 24, 2018, https://lpeproject.org/blog/rethinkingcriminal-law/ [https://perma.cc/lk7w-ur24] (last visited apr. 9, 2021). 36 see history, critical resistance, http://criticalresistance.org/about/history [https://perma.cc/5q5m-brpg] (last visited apr. 9, 2021). 37 angela davis, are prisons obsolete? (2003). 38 dr. ruth wilson gilmore is a professor of earth & environmental sciences, and american studies, and the director of the center for place, culture, and politics at the city university of new york (cuny). 39 rachel kushner, is prison necessary? ruth wilson gilmore might change your mind, n.y. times (apr. 17, 2019), https://www.nytimes.com/2019/04/17/magazine/prison-abolition-ruth-wilsongilmore.html [https://perma.cc/z88s-xt62]. 40 id. 40 colum. j. race & l. [vol. 11:33 these concepts gained greater urgency this year—and in this school—in the wake of george floyd and breonna taylor’s murders, and from the murders of countless other black people at the hands of law enforcement.41 this country’s mass demonstrations for black lives matter encouraged all of us to think critically about combating structural racism in all sectors of society. i’d like us to now consider abolition as a remedy to harm. an abolitionist framework allows us to look beyond existing law toward models that enable repair and prevention of future harm.42 abolition enables us to craft tailored remedies that fit the harm experienced. the remedy sought may differ depending on the nature and extent of the harm, and the desires of the persons or the communities who experienced the harm. examples of these models already exists in communities that have experienced state violence and i’ll highlight two briefly. in response to decades of police torturing black people in chicago, activists and lawyers demanded and then received reparations from the city.43 they used the term reparations to harken back to this history of enslavement and racial hierarchy. in addition to monetary compensation, they secured psychological counseling for the torture survivors, an official apology, tuition-free education at a local college for torture survivors and their families, a requirement that chicago public schools teach students about the torture cases, and the construction of a public monument recognizing the torture victims.44 chicago’s reparations resolution can serve as a model for other communities. in los angeles, l.a for youth activists are engaged in a campaign to redirect monetary resources away from policing and into prevention and intervention strategies, including employment opportunities for young people to provide them skills to enter the workforce. this is an example of “justice reinvestment,” a term that allegra mcleod uses.45 this is what 41 larry buchanan, quoctrung bui, & jugal k. patel, black lives matter may be the largest movement in u.s. history, n.y. times, july 3, 2020. 42 hoag, supra note 23, at 738-39. 43 id. at 739-41. 44 id. at 741-42. 45 allegra mcleod, prison abolition and grounded justice, 62 ucla l. rev. 1156, 1225-26 (2015). 2021] closing remarks 41 we mean when we say “defund the police.” it is disinvestment, followed by thoughtful reinvestment with an eye toward preventing and mitigating future harm. beyond reparations and divest/invest, abolition allows for reckoning and reconciliation as remedies for past harm, and to prevent the cyclical reoccurrence of future harm. police violence against black people is a symptom of a larger illness. and that illness is the presumption of criminality and dangerousness that society assigns to black people. this presumption emerged from slavery and the racial hierarchy that followed; it’s what isabel wilkerson explains in her recent book caste.46 bryan stevenson, the founder and director of equal justice initiative, is deeply engaged in a campaign to acknowledge racial terrorism, and to provide pathways toward reconciliation.47 my former boss sherrilyn iffil, president and director counsel of the naacp legal defense and educational fund, has called for racial reckoning to enable reconciliation of longstanding harms that whole communities of black people experienced as a result of state sanctioned violence in the name of white supremacy.48 the adversarial criminal legal system—where assuming responsibility for harm is disfavored—is ill-equipped to enable reckoning and reconciliation. as rukia lumumba explained, we must look to alternative models that focus on accountability rather than punishment. to meaningfully address harm, to protect and advance the rights of racial minorities, and to prevent harm from reoccurring, we must look outside of existing laws. i offer abolition as a pathway toward justice. thank you. and i’m happy to take questions if we have any time. 46 isabel wilkerson, caste: the origins of our discontents (2020). 47 see national memorial for peace and justice, equal. just. initiative, https://museumandmemorial.eji.org/memorial [https://perma.cc/w3dm-h5xr] (last visited apr. 9, 2021). 48 sherrilyn a. ifill, on the courthouse lawn: confronting the legacy of lynching in the twenty-first center (2018). 42 colum. j. race & l. [vol. 11:33 columbia journal of race and law vol. 11 april 2021 no. 2 note unenforced promises: treaty rights as a mechanism to address the impact of energy projects near tribal lands alyson merlin! treaties between the united states and native nations are binding until abrogated by the clear and plain intent of congress. many treaties signed in the 18th and 19th centuries remain unabrogated, but are also unenforced by the courts of the united states. the dewey burdock project is a proposed uranium mining operation which would sit adjacent to the pine ridge indian reservation, where many members of the oglala sioux reside. the 1851 and 1868 fort laramie treaties impliedly grant the sioux access to safe drinking water and explicitly reserve for them offreservation buffalo hunting rights. this note posits that unenforced but unabrogated treaty rights may serve as a mechanism for the oglala sioux to assert a greater role in decision-making regarding the dewey burdock project. this note also discusses the failure of the nuclear regulatory commission to consider the project!s effect on protected treaty rights, which may be a basis for injunctive relief. it lastly conceptualizes the project!s interference with treaty rights as a property loss deserving of monetary compensation, both in the context of a government taking by the agency and as private interference by the mining company. ! symposium editor, columbia journal of race and law, volume 11. j.d. candidate, columbia law school, 2021. my sincere thanks to the columbia journal of race and law staff for their help in editing this piece, to elliot spector for the same, and to steven mcsloy for his endless assistance, both substantively and in moral support, during the authoring of this note. 374 colum. j. race & l. [vol. 2:373 i. introduction .........................................................................375 ii. background ..........................................................................379 a. history of treaty interpretation.................................379 b. historical implicit and express off-reservation indian rights................................................................383 1. fishing servitudes ...............................................383 2. implied water rights ..........................................387 3. off-reservation hunting rights .........................389 iii. treaties at issue: fort laramie..........................................391 a. the 1851 and 1868 fort laramie treaties ................391 b. effect of sioux nation and subsequent land confiscation on fort laramie treaty rights .............393 iv. applications of treaty rights principles to the dewey burdock project....................................................................398 a. judicial review and procedural posture of the dbp.....................................................................399 b. implied water rights ..................................................401 c. off-reservation hunting rights .................................404 1. “in such numbers as to justify the chase”.......406 2. the term “buffalo” ..............................................409 d. dbp as a property loss deserving of monetary compensation...............................................................412 1. dbp as a fifth amendment taking ...................413 2. private financial liability ..................................415 v. conclusion............................................................................419 2021] unenforced promises 375 i.introduction we are very connected to the sacred water . . . . it!s up to us to defend that water. when you make your decision, feel that heartbeat. help us. help us to survive. "dennis yellow thunder1 the dewey burdock project (dbp) is a proposed mining operation under the authority of the nuclear regulatory commission (nrc)2 which seeks to excavate uranium through groundwater pumps in south dakota.3 the proposed project area spans 10,000 acres and is located on land historically promised to the great sioux nation through the 1851 and 1868 fort laramie treaties with the united states federal government.4 the dbp is both adjacent to the pine ridge indian reservation and upstream of the cheyenne river tributaries that run through it.5 the oglala sioux, a band of the sioux nation who live on the pine ridge indian reservation, heavily oppose the project.6 this note applies the canons of indian treaty interpretation to the 1851 and 1868 fort laramie treaties to assess the legal rights of the sioux and the dbp!s potential impact on those rights. this note uses the term “indian” to describe the indigenous peoples from the area which now makes up the united states. this choice was made in consideration of the term 1 dennis yellow thunder, a member of the oglala sioux, spoke to the atomic safety and licensing board in august 2014 about the dbp. talli nauman, native sun news: release of secret uranium mining data ordered, indianz (sept. 1, 2014), https://www.indianz.com/news/2014/014928.asp [https://perma.cc/e5x2-wdsa]. when delivering his speech, he asked them to “place their hands on their hearts to feel them beating” like the “the water coursing under the earth.” id. 2 see application documents for dewey-burdock, u.s. nuclear regulatory comm!n, https://www.nrc.gov/infofinder/materials/uranium/licensed-facilities/dewey-burdock/dewey-burdockapp-docs.html [https://perma.cc/3nt4-hgm9] (apr. 1, 2016). 3 public comments regarding the epa region 8 proposed deweyburdock in-situ uranium recovery project permitting actions, env!t prot. agency (2017), https://www.epa.gov/sites/production/files/201709/documents/epadewey-burdockcommentsreceivedfromnamedentities.pdf [https://perma.cc/9j8q-rrgj] [hereinafter epa public comments] 4 talli nauman, oglala sioux tribe keeps up fight against uranium mine, native sun news today (feb. 8, 2019), https://www.indianz.com/news/2019/02/08/native-sun-news-today-oglala-siouxtribe-22.asp [https://perma.cc/7bnb-8wka]. 5 id. 6 id. 376 colum. j. race & l. [vol. 2:373 as the technical legal descriptor7 for the peoples being discussed, as well as in light of critiques of the phrase “native american.” critics of the phrase have viewed the shift as an attempt by the united states to distance itself from the promises it has made to and the marginalization it has maintained of the indians.8 where possible, tribes are discussed by name instead of by any single overarching term. part ii of this note describes the canons of treaty interpretation and details the leading caselaw governing judicial interpretation of off-reservation treaty rights. the canons of treaty interpretation require ambiguities in treaty language to be interpreted to the benefit of the signatory indians.9 they also call for defining treaty terms as they would have been understood by tribes at the time of signing.10 finally, these canons hold that acts by the united states that do not demonstrate “clear and plain”11 intent of congress to abrogate treaties cannot be held to have done so. the united states government has previously violated federal treaty obligations. this leaves the current state of indian rights and interests unclear, as treaties may be unabrogated, but also unenforced. modern resource development has led to the increase of energy infrastructure and natural resource mining projects in the western united states near 7 see american indian law, legal info. inst., https://www.law.cornell.edu/wex/american_indian_law [https://perma.cc/fmb6h46b](describing the legal definition of the term “indian”). 8 for an extended critique of the term “native american” as a manner by which to refer to native peoples, see michael yellow bird, what we want to be called, 23 am. indian q. 3 n.2 (1999); see also charles c. mann, 1491: new revelations of the americas before columbus 335"356 (2nd ed. 2006) (“in conversation, every [n]ative person i have ever met (i think without exception) has used #indian! rather than #native american! . . . [w]e were enslaved as american indians, we were colonized as american indians and we will gain our freedom as american indians and then we will call ourselves any damn thing we choose.”) (quoting russell means). 9 see, e.g., mcclanahan v. state tax comm!n, 411 u.s. 164, 174 (1973) (“[c]ircumstances such as these which have led this court in interpreting indian treaties to adopt the general rule that #(d)oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.!” (quoting carpenter v. shaw, 280 u.s. 363, 367 (1930))); winters v. united states, 207 u.s. 564, 576"77 (1908) (describing and applying this canon). 10 see, e.g., choctaw nation v. oklahoma, 397 u.s. 620, 631 (1970) (“rather, treaties were imposed upon them and they had no choice but to consent. as a consequence, this court has often held that treaties with the indians must be interpreted as they would have understood them.”); united states v. shoshone tribe, 304 u.s. 111, 116 (1938) (describing treaty terms with indian tribes to be construed “in the sense in which naturally the indians would understand them”). 11 united states v. dion, 476 u.s. 734, 739"40 (1986). 2021] unenforced promises 377 current and former reservation lands.12 a clear definition of unabrogated treaty rights is now crucial to assessing indians! legal ability to protect their interests from projects affecting their lands. these determinations are especially important in the dakotas, where the united states government has a particularly complex relationship with outstanding treaty obligations and where some of the most controversial indian rights cases in recent history are currently unfolding.13 part iii of this note describes relevant provisions of the 1851 and 1868 fort laramie treaties which still bind the united states and the sioux. it also discusses the effect of a prominent supreme court case on these treaties. at the end of the 19th century, the united states government violated the 1851 and 1868 fort laramie treaties between the united states and the great sioux nation. 14 among other territories described in the documents, which span the modern-day dakotas, the fort laramie treaties protected the black hills$a site known to be of sacred religious importance to the sioux.15 the united states government withheld food rations from the sioux until they eventually yielded and surrendered the black hills to the united states.16 these measures have been remembered as especially heinous. as justice blackmun recounted in united states v. sioux nation of indians, “[a] more ripe and rank case of dishonest dealings may never be found in our history.”17 despite the severity of these actions, the united states! unilateral taking of the black hills did not fully abrogate the fort laramie treaties, 12 clayton thomas-muller, energy exploitation on sacred native lands, race, poverty & env!t (2005), https://reimaginerpe.org/node/307 [https://perma.cc/6289-yez8]. 13 julie carrie wong & sam levin, standing rock protesters hold out against extraordinary police violence, guardian (nov. 29, 2016, 3:26 pm), https://www.theguardian.com/us-news/2016/nov/29/standing-rock-protestnorth-dakota-shutdown-evacuation [https://perma.cc/u9g4-6hy8] (describing use of excessive police force on pipeline protestors); talli nauman, clash mounts over proposed black hills uranium mining, native sun news (feb. 19, 2013), https://www.indianz.com/news/2013/008582.asp [https://perma.cc/4dsk-p43r]. 14 see david h. getches et al., cases and materials on federal indian law 403 (7th ed. 2017) (describing the united states government!s interference with the sioux!s treaty-protected rights in the late 1800s). 15 timothy williams, sioux racing to find millions to buy sacred land in black hills, n.y. times (oct. 3, 2012), https://www.nytimes.com/2012/10/04/us/sioux-race-to-find-millions-to-buysacred-land-in-black-hills.html [https://perma.cc/6np6-4lme]. 16 united states v. sioux nation of indians, 448 u.s. 371 (1980). see infra part iii.b for a longer discussion of sioux nation. 17 sioux nation, 448 u.s. at 388 (quoting united states v. sioux nation of indians, 518 f.2d 1298 (ct. cl. 1975)). 378 colum. j. race & l. [vol. 2:373 and the dbp may impact the rights that still exist within these treaties. finally, part iv of this note discusses the legal obligations owed to the oglala sioux in the context of the dbp, as well as the potential remedies available to the tribe should the project proceed. the oglala sioux$through the fort laramie treaties, which bind the united states and the entire great sioux nation$have express and implied rights to water, hunting, and land ownership both onand off-reservation. therefore, the nrc must give full consideration to the tribe!s material interests as environmentally destructive projects like the dbp affect their reservation lands. the winters doctrine guarantees viable water sources to the oglala sioux on the pine ridge indian reservation, and the tribe contends that the dbp jeopardizes that right.18 additionally, the national environmental policy act (nepa)19 obligates the nrc to fully consider the sioux!s off-reservation hunting rights, which were not mentioned in the dbp permit analysis.20 for these reasons, the project should not be permitted to proceed in its current form. should the dbp continue, either the federal government or azarga uranium, the full owner of the dbp and its potential uranium harvest,21 must award monetary compensation to affected oglala sioux for the value of their treaty rights$either by conceptualizing their lost land and interests as a taking or as damages caused by the construction and administration of the dbp. 18 epa public comments, supra note 3. 19 see national environmental policy act at the nrc, u.s. nuclear regulatory comm!n, https://www.nrc.gov/aboutnrc/regulatory/licensing/nepa.html [https://perma.cc/fmq8-4ljn] (dec. 15, 2020) (“the nrc must assess the effects of any proposed action (#undertaking!) on historic properties under section 106 of the national historic preservation act of 1966, as amended. . . . the nrc conducts the section 106 process as part of its nepa review.”). 20 see u.s. nuclear regulatory comm!n, nureg-1910, supp. 4. vol. 1, environmental impact statement for the dewey-burdock project in custer and fall river counties, south dakota (2014) [hereinafter dewey-burdock eis] (describing the project as not intruding on sioux hunting but with little mention specifically of treaty-protected hunting rights). 21 azarga uranium, formerly powertech uranium corp., owns 100% of dbp uranium and is the licensee for all dbp permits issued by the nrc. dewey burdock uranium project, azarga uranium, http://azargauranium.com/projects/usa/dewey-burdock/ [https://perma.cc/c3sybgvm] (last visited feb. 11, 2021). 2021] unenforced promises 379 ii. background a. history of treaty interpretation longstanding power imbalances between indian nations and the united states federal government, along with prominent, inadequately-managed language barriers, characterized indian treaty negotiations and bargaining. these inequities led to present-day doctrine regarding the interpretation of language in treaties between the united states government and indian tribes. currently, the supreme court employs three main canons of treaty interpretation when determining the rights and privileges that the documents in question vest and confer to tribal signatories. first, all treaties must be understood in light of how the indians who signed them would have understood their terms.22 next, ambiguities in the treaties! terms must be resolved in favor of indians.23 finally, congress will not be seen as abrogating treaties and the rights therein where such abrogation is ambiguous, and abrogation will not be read into general statutes.24 as far back as 1832,25 the supreme court has actively recognized (at least in part) the bargaining imbalances that existed between the federal government and tribal negotiators during treatymaking. justice gray discussed this inequity and how the interpretation of indian treaties must be framed when writing for the court in jones v. meehan: [it must] be borne in mined [sic] that the negotiations for the treaty are conducted, on the part of the united states, . . . by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language.26 22 choctaw nation v. oklahoma, 397 u.s. 620, 631 (1970). 23 mcclanahan v. state tax comm!n, 411 u.s. 164, 174 (1973). 24 u.s. v. dion, 476 u.s. 734, 739"40 (1986). 25 see worcester v. georgia, 31 u.s. 515 (1832) (implementing the canons of treaty interpretation for the first time). 26 jones v. meehan, 175 u.s. 1, 11 (1899). meehan refers to the united states as “enlightened” and also to the indians as a “weak and dependent” people. this was common in supreme court decisions of the era, and the racism entrenched in these opinions taints all of modern federal indian law. id. 380 colum. j. race & l. [vol. 2:373 justice gray accurately described the unfairness of the bargaining situation at the time, which was exacerbated by the rampant racial and cultural biases of courts. tribes were expected to conform to a new set of unfamiliar laws that used unshared western concepts of property ownership. tribes were also expected to understand technical legal jargon that united states government officials drafted in order to advance the interests of the new nation at the indians! expense. further, government-funded interpreters! translations of these treaties were often inaccurate, skewing negotiated terms in favor of the united states. examples of treaty negotiations without proper translation, and therefore without meaningful consent of indian tribes, abound. for example, in united states v. state of washington,27 judge boldt was tasked with interpreting the various treaties (the stevens treaties) that isaac stevens, governor of the state in the mid-1850s, had negotiated in the washington territory. boldt was tasked with defining the extent of existing off-reservation fishing rights held by several western washington tribes.28 in discussing one of the tribes in question, judge boldt began the analysis by recalling that “[t]he makah could neither read, write nor speak english.”29 in judge boldt!s retelling, governor stevens attempted to combat these linguistic barriers by using interpreters from entirely different tribes. specifically, stevens hired a member of one of the clallam tribes who was said to partially speak the makah language, despite the stark differences between the two tribes! languages and cultures.30 in another documented instance, stevens negotiated with the makah by speaking in english and having treaty terms translated into the entirely distinct language of chinook.31 chinook jargon is a trade language borne out of the combination of several indian languages, english, and french.32 not only was chinook jargon not universally known among the negotiating parties, the language also consists of fewer than 500 words in total, with vocabulary tailored to the purposes of trade and 27 united states. v. state of wash., 384 f. supp. 312 (w.d. wash. 1974), aff!d and remanded, 520 f.2d 676 (9th cir. 1975). 28 id. 29 id. at 364. 30 id. 31 id. at 330. 32 george gibbs, dictionary of the chinook jargon, or, trade language of oregon [abridged] (1863), https://www.washington.edu/uwired/outreach/cspn/website/classroom%20mat erials/curriculum%20packets/treaties%20&%20reservations/documents/chin ook_dictionary_abridged.pdf [https://perma.cc/svn9-76f9]. 2021] unenforced promises 381 conveying practical and concrete concepts.33 boldt!s opinion underscored the fact that the united states did not take care to ensure that treaty negotiations were fair, or even comprehensible, to the tribes involved. modern doctrine works to at least partially mitigate the impact of these linguistic and cultural barriers.34 the final canon of interpretation protects the strength and longevity of binding treaties by requiring that congress!s intent to abrogate treaty documents be “clear and plain” in order for the court to find abrogation.35 the seminal case illustrating this canon is united states v. dion, a 1986 supreme court decision that explored how the endangered species act (esa) interacts with existing treaty hunting rights. dwight dion, a member of the yankton sioux, was prosecuted under the esa for shooting four bald eagles.36 in his defense, he pointed to the hunting rights preserved in the yankton sioux!s 1858 treaty with the united states.37 when the yankton sioux ceded all but 400,000 acres of tribal land to the united states, that remaining land became an official reservation on which the yankton sioux were entitled to “quiet and undisturbed possession of their reserved land.”38 the fact that the indians were to have exclusive 33 id. 34 united states v. dion, 476 u.s. 734, 739"40 (1986). 35 thomas-muller, supra note 12. the use of inference based on legislative history in dion as a means to satisfy the “clear and plain” intent requirement is a departure from, and loosening of, the demonstration of congressional intent to abrogate described in washington v. washington state commercial passenger fishing vessel ass!n, 443 u.s. 658 (1979). there, the court heavily preferences explicit statutory language regarding abrogation. id. at 690 (“absent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights . . . .”). the dion court denied that its actions constituted a departure, stating that the court has not strictly “interpreted that preference, however, as a per se rule; where the evidence of congressional intent to abrogate is sufficiently compelling, #the weight of authority indicates that such an intent can also be found by a reviewing court from clear and reliable evidence in the legislative history of a statute.!” dion, 476 u.s. at 739 (quoting felix cohen, handbook of federal indian law 223 (1982)). 36 dion, 476 u.s. at 734. 37 id. 38 id. at 737. the supreme court held in united states v. winans that state licenses preferencing non-indian fishing techniques could not be used as a vehicle to exclude yakima fishermen from fishing in off-reservation waters on which the yakima retained treaty fishing rights. 198 u.s. 371 (1905). in 1942, the court further clarified the interaction between off-reservation fishing rights and license restrictions, stating that the states have the power to regulate fishing generally but do not have authority to impose license fees on tribal fisherman exercising reserved treaty rights. tulee v. washington, 315 u.s. 681 (1942). more modern analysis has held that this general right of states to 382 colum. j. race & l. [vol. 2:373 hunting and fishing rights on that reserved land was not disputed in dion; instead, the parties disagreed as to whether those rights superseded the species-specific hunting restrictions in the esa.39 in considering whether the yankton sioux!s right to hunt bald eagles remained intact for purposes of esa analysis, the court first examined the intersection between the tribe!s hunting rights and the bald eagle protection act (bepa).40 although the original bepa made no reference to indian hunting, a 1962 amendment, which added protection for a new species of eagle, carved out an explicit exception for certain indian religious ceremonies.41 the court took this as an implication that silent provisions of the bepa did not afford the same exception; the court also gave great weight to house reports that cited “demand for eagle feathers for indian religious ceremonies” as one of the threats that motivated bepa!s passage.42 though not explicit in the language of bepa, the court held that the weight of the evidence justified an inference that the statute was intended to abrogate the yankton sioux!s treaty hunting rights as applied to golden and bald eagles.43 to satisfy the “clear and plain”44 intent requirement, the court only required “clear evidence that congress actually considered the conflict between its intended action on the one hand and indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.”45 the court then found dion liable under the esa because, although the esa did not have legislative history supporting an intention to abrogate the yankton sioux!s treaty, dion could not be protected by rights which the bepa had already nullified.46 even with the dion court!s liberal interpretation of the bepa to locate congressional intent to abrogate, the presumption still stands in favor of upholding existing treaties. as justice regulate off-reservation fishing can, in some cases, regulate the manner in which fish are caught so long as fishing generally is permitted to continue. puyallup tribe v. wash. dep!t of game, 391 u.s. 392 (1968). see infra part iii for a deeper analysis of off-reservation fishing and hunting rights. 39 dion, 476 u.s. at 734. 40 id. at 736. 41 id.; 16 u.s.c. §§ 668"668d. 42 dion, 476 u.s. at 743. 43 id. at 745. 44 id. at 738. 45 id. at 740 (emphasis added). 46 id. at 740, 745. 2021] unenforced promises 383 marshall put it in dion, “indian treaty rights are too fundamental to be easily cast aside.”47 in addition to the three main canons of interpretation, courts also view treaties in light of chief justice marshall!s majority opinion in worcester v. georgia. in worcester, marshall describes tribal sovereignty and tribal rights as predating the united states and the former colonies, and therefore, as retaining all rights and privileges not directly forfeited by treaty provisions.48 to chief justice marshall, treaties represent a series of negotiations which sought to exchange existing indian rights with the united states for certain provisions or to avoid violence.49 at their core, such treaties are “not a grant of rights to the indians, but a grant of right from them, a reservation of those not granted.”50 treaties should thus be construed broadly in favor of the indians that signed them, both through the canons of interpretation and also when viewed as limited agreements representing a narrow forfeiture of existing indian rights. b. historical implicit and express off-reservation indian rights among the clearest examples of indian retention of rights in treaty negotiation are the reserved tribal rights that persist on former native lands now ceded to the united states government. in addition to fishing and hunting rights, often explicitly enumerated in these reserved off-reservation rights, some treaty language has also been interpreted to impose obligations, owed to indians, onto the non-indians occupying that land. 1. fishing servitudes as fishing was a crucial source of food for many tribes, especially those in the modern pacific northwest, many treaties explicitly protected the fishing rights of tribes, even in lands that were vested to the united states. the court has held that these provisions confer upon indians a right to fish outside of the waters within their territory, even where state law contradicts 47 id. at 739. 48 see worcester v. georgia, 31 u.s. 515, 542"45 (1832) (“it is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the preexisting rights of its ancient possessors.”). 49 id. at 551. 50 united states v. winans, 198 u.s. 371, 381 (1905). 384 colum. j. race & l. [vol. 2:373 these terms.51 some treaty provisions even impliedly grant upstream protection of fish to ensure eventual entrance into tribal waters.52 off-reservation fishing rights are among the most heavily-litigated treaty benefits tribes maintain on ceded lands and are important in defining the potential scope of off-reservation rights more generally. in 1905, the supreme court decided united states. v. winans, a seminal case on the breadth of off-reservation fishing rights. the case interpreted provisions of one of the stevens treaties, the 1859 treaty between the yakima and the united states that promised the yakima people the “exclusive right of taking fish” on their reservation as well as a right to fish “at all usual and accustomed places, in common with citizens of the territory”53 on lands ceded to the united states.54 the yakima contended that the state of washington inhibited their ability to exercise their fishing rights and the united states brought suit against the state on the yakima!s behalf.55 in the years leading up to this litigation, the state of washington issued fishing licenses to non-indian fishers outside of the yakima reservation, allowing the use of fishing wheels56 that caught the vast majority of harvestable fish and deprived the yakima of meaningful fishing access to those bodies of water.57 interpreting the 1859 treaty as the yakima would have understood it, the court reasoned that the yakima would never have agreed to cede lands to the united states if that would have resulted in a loss of fishing ability.58 the court emphatically underscored that the “right to resort to the fishing places in controversy was a part of 51 id. 52 washington v. wash. state com. passenger fishing vessel ass!n, 443 u.s. 658 (1979). 53 treaty with the yakima art. 3, mar. 8, 1859, 12 stat. 951. 54 winans, 198 u.s. at 380. 55 id. at 379. the united states sued on behalf of the yakima in its role as trustee for the tribe. the federal government maintains a trust relationship over all federally recognized tribes, and under certain circumstances has a duty to act in the tribe!s benefit. nell jessup newton, federal power over indians: its sources, scope, and limitations, 132 u. pa. l. rev. 195 (1984). as such, the united states had an obligation to initiate this suit against the state of washington to protect the yakima!s protected treaty rights to fish in the specified locations. 56 a fishing wheel, also known as a salmon wheel, is “a trap for catching salmon, consisting of a revolving wheel with attached nets set in a river so that it is turned by the current to capture the passing fish.” fishing wheel, dictionary.com, https://www.dictionary.com/browse/salmon-wheel [https://perma.cc/32wx-3z8g] (last visited oct. 29, 2020). 57 winans, 198 u.s. at 380. 58 id. at 381. 2021] unenforced promises 385 larger rights possessed by the indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the indians than the atmosphere they breathed.”59 the court found that the state of washington!s authority to issue or revoke fishing licenses as the governing authority in the location where those waters ran was limited by the yakima!s treaty fishing rights.60 further, the court noted that since the yakima were owners of the historical right to fish, the treaty represented a limited grant of fishing rights from the yakima to the united states for new settlers to share.61 the yakima had always maintained the right to fish on the rivers in question, and this right persisted despite the tribe ceding physical possession of the land and notwithstanding its grant of shared access to the fish to the general population.62 many treaty rights endure in this same way across the united states, preserving tribal access to fishing and hunting despite the united states! physical ownership of formerly indian lands. washington v. washington state commercial passenger fishing vessel association (the boldt decision) was a consolidated opinion interpreting the stevens treaties between the united states and indian nations. the united states brought the suit on behalf63 of seven tribes located in the northwest, asking the court to clarify how to interpret the rights preserved in a series of treaties using common phrases.64 the boldt decision interpreted language almost identical to the language discussed above in winans, granting the united states certain ceded lands but retaining indians! right to fish in rivers that the tribes had historically used.65 the court held that the retained fishing rights not only permitted indian fishing on off-reservation lands, but also that treaty-bound indians were “entitled to a 45% to 50% share of the harvestable fish passing through their recognized tribal fishing grounds in the case area, to be calculated on a river-by-river, run-by-run basis, subject to certain adjustments.”66 this decision bound both the state of 59 id. 60 id. at 381"84. 61 id. at 381. 62 id. 63 see newton supra, note 55 (explaining general federal trust obligations). 64 washington v. wash. state com. passenger fishing vessel ass!n, 443 u.s. 658, 658, 665"67 (1979). 65 id. at 674. 66 id. at 658. 386 colum. j. race & l. [vol. 2:373 washington and its non-indian citizens to limit their fish harvest off-reservation in order to afford an equitable percentage of catch to tribal fishers.67 decades later, the state of washington attempted to circumvent the boldt decision in united states v. washington, better known as “the culverts case.”68 on appeal, the state sought to escape an injunction imposed by the lower courts, which found that the state violated protected treaty rights by building and sustaining culverts.69 these culverts prevented salmon from travelling for food and to spawn, reducing the salmon population entering indian reservations.70 according to the state, though the tribes were entitled to 50% of the actual catch, the treaties did not guarantee a minimum harvestable fish population.71 the ninth circuit flatly rejected the state!s reading of the stevens treaties, concluding that “in building and maintaining barrier culverts within the case area, washington has violated, and is continuing to violate, its obligation to the tribes under the treaties.”72 although the treaties outright promised73 a quantity of fish to the tribes, the court reiterated that such a promise would have been inferred regardless, as treaties afford an implied promise to the number of fish “sufficient to provide a #moderate living!74 to the tribes.”75 the boldt decision and the culverts case demonstrate the scope of the judiciary!s existing 67 id. 68 united states v. washington, 853 f.3d 946 (9th cir. 2017), aff!d by an equally divided court washington v. united states, 138 s.ct. 1832 (2018) (mem.). 69 a culvert is a “a drain or channel crossing under a road,” which in this case posed a physical barrier for underground water channels to regenerate nearby streams. culvert, dictionary.com, https://www.dictionary.com/browse/culvert [https://perma.cc/kd2n-kwcv] (last visited jan. 7, 2021). 70 united states v. washington, 853 f.3d at 954. 71 the state of washington asserted at oral arguments that the stevens treaties would not prohibit the state from blocking every single salmon from entering tribal waters. id. at 962. 72 id. at 966. 73 governor stevens said, “#i want that you shall not have simply food and drink now but that you may have them forever.! during negotiations for the point-no-point treaty, stevens said, #this paper is such as a man would give to his children and i will tell you why. this paper gives you a home. does not a father give his children a home? . . . this paper secures your fish. does not a father give food to his children?!” united states v. washington, 853 f.3d at 964 (quoting washington v. wash. state com. passenger fishing vessel ass!n, 443 u.s. 658, 667 n.11 (1979) (ellipsis in original)). 74 wash. state com. passenger fishing vessel ass!n, 443 u.s. at 686. 75 united states v. washington, 853 f.3d at 965. 2021] unenforced promises 387 treatment of off-reservation rights and the far-reaching breadth of legal protection potentially available to tribes with unextinguished treaty rights. 2. implied water rights in addition to granting indians broad latitude in asserting that fishing rights and a quantity of fish are reserved, courts have interpreted treaties to confer the much more intangible right to water to indians. this right has been read into treaties in a variety of contexts, including for the continuation of fishing and hunting rights on reservations76 and for the sustenance of life on the reservation in general.77 the reserved and implied water rights doctrine originates in the 1908 supreme court case winters v. united states. in winters, the court adjudicated a dispute between residents of the fort belknap indian reservation78 and winters, a non-indian defendant who settled near the reservation.79 non-indian use of the river outside of the reservation$through dams, reservoirs, and canals$had re-routed the water in a manner that precluded any meaningful indian use of water on the reservation.80 no specific treaty language guaranteed the indians continued flow of the rivers and streams that had always run through the territory in question. nevertheless, the court still found this to be an implicit and inseverable part of the 1888 treaty establishing the fort belknap reservation.81 the court reasoned that the indians$whose dry and arid reservation would have made agriculture impossible without the ability to divert water from the river in question$would not have agreed to a treaty that would render its purpose of increasing agricultural capacity for the indians impossible to achieve.82 in resolving the ambiguities of the treaty in favor of the indians, the court held that a right to water must be implied where the right is necessary 76 see united states v. adair, 723 f.2d 1394, 1414 (9th cir. 1983) (recognizing a “continued water right to support [the tribe!s] hunting and fishing lifestyle”). 77 see winters v. united states, 207 u.s. 564, 576 (1908) (recognizing the tribe!s right to irrigated water since the lands “without irrigation, were practically valueless”). 78 the united states acting in its tribal trust obligation represented the residents of the fort belknap indian reservation in the dispute. see united states v. winans, 198 u.s. 371, 380 (1905) (explaining “trust relationship”). 79 winters v. united states, 207 u.s. 564 (1908). 80 id. at 567. 81 id. at 577. 82 id. at 576. 388 colum. j. race & l. [vol. 2:373 to afford the full use of reservation lands.83 the court did not find it material that winters and other landowners would have frustrated purpose and meaningless property without the same rights to divert the river.84 the implied right to water also applies in the context of protecting reserved fishing and hunting rights. in united states v. adair, the united states brought suit asking the oregon courts to clarify the extent of existing water rights between the klamath and oregonian private landowners.85 though the klamath had “hunted, fished, and foraged in the area . . . for over a thousand years,”86 they ceded much of their land to the united states in 1864, reserving for themselves the land that eventually became the klamath reservation. they retained the exclusive right to hunt and fish on the reservation under the treaty.87 at issue in the case was whether deprivation of water to the reservation through consumptive, non-indian upstream use violated the klamath!s treaty right to hunt and fish on reservation marshlands, which could not sustain meaningful fish and game populations without adequate water flow.88 the right to water itself was not explicit in the treaty; however, the ninth circuit held that the tribe was entitled to the amount of water necessary to maintain fish and wildlife populations and the continuation of indian hunting and fishing.89 the consumptive, non-indian water use that was depriving the marshland of necessary moisture had to be enjoined to a level that allowed the indians to continue to use their land in the manner they negotiated in their treaty with the united states.90 the court held that the indians were entitled to sufficient water so as not to frustrate the original purpose of the reservation lands.91 as the right to hunt and fish was one of the primary purposes for establishing the klamath reservation, the water needed to exercise those rights was also guaranteed under the treaty.92 in describing the right of the klamath to indirectly impose restrictions on the water use of government and individual non-indians off-reservation, the court defined the indian entitlement as “the right to prevent other 83 id. 84 id. at 574. 85 united states v. adair, 723 f.2d 1394, 1397 (9th cir. 1983). 86 id. 87 id. at 1398"99. 88 id. at 1399"1400. 89 id. at 1410. 90 id. at 1411. 91 id. at 1410. 92 id. 2021] unenforced promises 389 appropriators from depleting the stream waters below a protected level in any area where the non-consumptive right applies.”93 the klamath!s treaty with the united states afforded them the distinct off-reservation privilege to enjoin certain non-indian activities. the winters doctrine of reserved water rights affords the indians vital protections of a resource necessary for all facets of everyday life. as demonstrated by the adair case, courts are willing to enforce this right, even at the expense of non-indian water appropriators. 3. off-reservation hunting rights many treaties between the united states government and indian tribes also included provisions which guaranteed indians the right to hunt outside of the borders of their reservations. as with fishing servitudes, these provisions are often read broadly in favor of continuing tribal use. treaty provisions to hunt outside of reservation lands have been interpreted to withstand political reorganization, such as the incorporation of statehood,94 and to apply in national forests.95 the treaty right to hunt outside of reservation lands has even been applied to indian tribes who were not signatories to any treaty document.96 as recently as 2019, the supreme court reaffirmed that off-reservation hunting rights survive the united states government!s structural reorganization of tribal lands and interests, including after the establishment of statehood, absent a clear congressional intent to abrogate those interests. in herrera v. wyoming,97 the court interpreted treaty language stating that the crow indians would “have the right to hunt on the unoccupied lands of the united states so long as game may be found thereon . . . and peace subsists . . . on the borders of the hunting districts.”98 at issue in the case was clayvin herrera!s elk hunt, which took place within bighorn national forest. herrera did not have a state hunting license at the time; however, he was a member of the crow tribe and argued that the crow!s off-reservation right to hunt afforded him the ability to 93 id. at 1411. 94 minnesota v. mille lacs band of chippewa indians, 526 u.s. 172, 205 (1999). 95 herrera v. wyoming, 139 s.ct. 1686, 1691 (2019). 96 state v. coffee, 556 p.2d 1185, 1193 (idaho 1976). 97 herrera, 139 s.ct. at 1691. 98 id. at 1691 (citations omitted) (quotations omitted). 390 colum. j. race & l. [vol. 2:373 hunt irrespective of state licenses and prescribed hunting seasons.99 the state court had prevented him from asserting a treaty defense, holding that wyoming!s 1890 entrance into the union abrogated the crow!s treaty.100 in herrera, the court reaffirmed its precedent in minnesota v. mille lacs band of chippewa indians that the establishment of statehood alone does not abrogate indian treaty rights to hunt and fish, and held that herrera should have been permitted to put forth his treaty-based defense.101 the court went even further to protect off-reservation hunting rights by establishing a broad interpretation of the crow treaty!s use of the phrase “unoccupied lands of the united states.”102 although bighorn national forest is a federally protected forest subject to united states forest service management, government maintenance of the forest does not meet the definition of occupation as the signatory crow would have understood it. applying a canon of interpretation to read treaty terms as the indians would have understood them, the court determined that the crow would have conflated the ideas of occupation and settlement, and would have seen bighorn national forest as “unoccupied.”103 protected treaty rights to hunt outside of reservation boundaries have even been applied to indians who do not have treaties with the united states. in state v. coffee,104 the supreme court of idaho considered dianne coffee!s criminal convictions for hunting deer off-season and using certain technologies prohibited by state statute.105 coffee!s defense was her membership in the idaho kootenai indian tribe$one of the five tribes that makes up the greater kootenai tribe, and one that is federally recognized, but also has neither a treaty with the united states nor an established reservation.106 the court held that because the 1855 hellgate treaty ceded kootenai land to the united states, along with other indian lands negotiated by other 99 id. at 1693. 100 id. 101 minnesota v. mille lacs band of chippewa indians, 526 u.s. 172, 205 (1999); herrera, 139 s.ct. at 1694. 102 herrera, 139 s.ct. at 1691. 103 id. at 1702. 104 state v. coffee, 556 p.2d 1185, 1185 (idaho 1976). 105 id. at 1186. 106 id. 2021] unenforced promises 391 tribes, the treaty applied to the kootenai.107 after this treaty, the united states subsequently treated those lands as ceded to american control and monetarily compensated the idaho kootenai accordingly; therefore, the rights exchanged ought to be applied to the idaho kootenai.108 since the hellgate treaty did not surrender hunting rights on the ceded lands, neither had the kootenai.109 the cession of hunting rights would not be implied either: “where established by historical use, aboriginal title includes the right to hunt and fish and where those rights have not been passed to the united states, by treaty or otherwise, the rights continue to adhere to the current members of the tribe which held them aboriginally.”110 iii. treaties at issue: fort laramie the dewey burdock project seeks to mine uranium from aquifers in south dakota on lands that the sioux retained as part of the 1851 and 1868 fort laramie treaties. as these treaties were originally negotiated between the united states and the great sioux nation, the word “sioux” in this context also applies to each of the seven bands of the great sioux nation that the original treaty binds, including the oglala sioux.111 a. the 1851 and 1868 fort laramie treaties the 1851 fort laramie treaty defined the geographic boundaries of the great sioux nation to allow for non-indian settlement of areas not under sioux control. however, the treaty did not establish an official reservation for the sioux. article v of the treaty clarifies that the sioux$by recognizing the existing boundaries outlined in the 1851 document$“do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.”112 however, the united states soon violated the terms of the 1851 treaty. post-civil war settlement of white people within great sioux nation!s defined territory, as 107 id. at 1187. the court also discussed the “kootenay” signatories to the hellgate treaty as a potential transcription error and as further evidence that the kootenai were contemplated at signing. id. 108 id. at 1188. 109 id. at 1193. 110 id. at 1189. 111 d.l. birchfield, sioux, countries & their cultures, https://www.everyculture.com/multi/pa-sp/sioux.html [https://perma.cc/m8qjmml6] (last visited jan. 7, 2021). 112 charles j. kappler, indian affairs laws and treaties 1066 (1927). 392 colum. j. race & l. [vol. 2:373 well as establishment of united states military posts on sioux land, caused conflict between the united states and the sioux.113 largely in order to avoid violence, and without a real choice in the matter, the sioux agreed to renegotiate their treaty to form the fort laramie treaty of 1868.114 in the 1868 treaty, the sioux ceded large swaths of land in return for the great sioux reservation, which contained the black hills, a site extremely sacred to the sioux, as well as the promise of food and clothing provisions.115 the great sioux reservation encompassed the lands now subject to discussions of development of the dbp. in addition to delineating the new boundaries of the sioux territory, the treaty promised the indians the right to exclude most unwanted visitors and settlers from their land: the united states now solemnly agrees that no persons, except those herein designated and authorized so to do, and except such officers, agents, and employees of the government as may be authorized[,] . . . shall ever be permitted to pass over, settle upon, or reside in the territory described in this article, or in such territory as may be added to this reservation for the use of said indians, and henceforth they will and do hereby relinquish all claims or right in and to any portion of the united states or territories, except such as is embraced within the limits aforesaid, and except as hereinafter provided.116 the treaty also preserved the sioux!s right to hunt on both reservation and certain described off-reservation lands “so long as the buffalo may range thereon in such numbers as to justify the chase.”117 other aspects of the 1868 fort laramie treaty were specifically focused on the tensions that arose between the settlers and the sioux after the signing of the 1851 treaty. for 113 the treaties of fort laramie, 1851 & 1868, n.d. stud., https://www.ndstudies.gov/gr8/content/unit-iii-waves-development-18611920/lesson-4-alliances-and-conflicts/topic-2-sitting-bulls-people/section-3treaties-fort-laramie-1851-1868 [https://perma.cc/flr7-slwr] (last visited jan. 7, 2021). 114 id. 115 id. 116 treaty of fort laramie art. ii, apr. 29"nov. 6, 1868, 15 stat. 635. 117 the reserved hunting right applied to lands “north of north platte[] and on the republican fork of the smoky hill river.” id. art. xi. 2021] unenforced promises 393 example, the second provision of article xi of the 1868 treaty describes a promise by the indians that “they will permit the peaceful construction of any railroad not passing over their reservation as herein defined.”118 finally, the treaty described the conditions under which the terms of the document could be renegotiated or altered, stating in plain language that no further land cession “shall be of any validity or force as against the said indians unless executed and signed by at least three-fourths of all the adult male indians occupying or interested in the same.”119 b. effect of sioux nation and subsequent land confiscation on fort laramie treaty rights although the dbp is technically on lands protected by the 1868 treaty, determining ownership of the area is not so simple. almost immediately after the united states signed the treaty, white settlers found gold in the black hills and began to force the sioux out of their sacred site.120 in june of 1876, tensions eventually erupted into the now-infamous battle of little bighorn, where the sioux defeated the american forces led by general custer.121 although the sioux won the battle, the united states won the war. the americans took all of the sioux!s weapons and horses, leaving them unable to hunt and entirely dependent on rations of food and clothing that the united states government provided.122 in august of 1876, congress enacted an appropriations bill that halted the annual provision of annuities to the sioux unless they ceded the black hills and gave up their right to hunt on the unceded territory north of the reservation.123 the united states then sent a presidentially-appointed commission to negotiate the annexation of the black hills.124 out of food and out of options, a few sioux leaders eventually conceded to the terms: the sioux would allow the united states to take legal and physical control of the sacred black hills in exchange for subsistence rations.125 although article xii of the 1868 fort laramie treaty requires at least three-fourths of adult sioux males to assent to treaty 118 id. 119 id. art. xii. 120 id. 121 getches et al., supra note 14, at 403. 122 id. 123 id. at 404. these lands north of the great sioux reservation do not intersect with the project area of the dbp. 124 id. 125 id. 394 colum. j. race & l. [vol. 2:373 negotiations, less than ten percent of adult male sioux agreed to the terms.126 the united states government ignored this crucial provision of the 1868 fort laramie treaty and codified the forced agreement into a formal document in 1877 (the 1877 act). the sioux attempted to regain their sacred site through the courts, a journey which began as a claim for land title in claims court in 1923 and eventually rose to the supreme court, under the theory that the sioux were owed just compensation in response to the government!s unlawful fifth amendment taking of the black hills.127 in 1980, justice blackmun acknowledged the unjust and illegal taking of the black hills in his strongly-worded opinion in united states. v. sioux nation of indians,128 reiterating that “[a] more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history.”129 writing for the majority, justice blackmun determined that the government!s unilateral annexation of the black hills clearly violated the 1868 treaty and was a taking within the definition of the fifth amendment, and affirmed the lower court!s grant of a substantial financial award to the sioux.130 although valid critiques of the sioux nation decision persist, including by the sioux,131 applying the case as written 126 id. at 403. 127 united states v. sioux nation of indians, 448 u.s. 371, 384 (1980). 128 id. 129 id. at 371. 130 id. at 424. 131 although sioux nation was formally decided in 1980, many tribal members and advocates consider the issue to be ongoing. at the time the sioux nation!s claims were in their final stages, “attorney contracts with tribes representing a majority of the sioux had expired and the attorneys and the court were aware that many sioux opposed the settlement.” getches et al., supra note 14, at 311. despite this, the settlement was signed on behalf of all of the tribes, and the court of claims submitted judgement. id. some bands of the sioux, including the oglala sioux, refused to re-sign attorney contracts because the lawyers were only advocating for monetary compensation, not for restitution of the black hills land title. linda greenhouse, sioux lose fight for land in dakota, n.y. times (jan. 19, 1982), https://www.nytimes.com/1982/01/19/us/sioux-lose-fight-for-land-indakota.html [https://perma.cc/jy7a-hh9k]. overall, the great sioux nation has been vocal in demanding the return of the physical land title to the black hills; the seven bands of the tribe refused the settlement money awarded in sioux nation, which sits in a federal bank account accumulating interest and is now valued at $1.3 billion. why the sioux are refusing $1.3 billion, pbs news hour (aug. 24, 2011, 3:57 pm), https://www.pbs.org/newshour/arts/north_america-july-dec11-blackhills_0823#:~:text=the%20refusal%20of%20the%20money,region%20of%20western%2 0south%20dakota [https://perma.cc/27yk-q5c7]. 2021] unenforced promises 395 does not inhibit the oglala sioux!s ability to pursue judicial recognition of their treaty rights. based on sioux nation, title to the lands outside the pine ridge indian reservation and below the dbp remain under the legal ownership of the united states government, private individuals, and corporations who have purchased them. however, the forced exchange of sioux lands through the fifth amendment takings clause does not abrogate the entire 1868 fort laramie treaty$specifically, those provisions that do not depend on physical ownership of the land. nor would the land confiscation which took place after the 1877 act serve to abrogate the fort laramie treaties. although the united states continued to take land from the great sioux nation without adhering to the 1868 fort laramie treaty!s article xii ratification procedures, the federal government never explicitly adopted an intention to abrogate the treaty!s usufructuary rights. in 1889, the united states vastly reduced the total size of the great sioux reservation and divided it into six smaller reservations, including the modern-day pine ridge indian reservation.132 the so-called negotiations behind the 1889 act took place during a time of armed conflict between the sioux and the white settlers. the events of 1889 are described similarly to the loss of the black hills in 1877: “[g]iven this situation, tribal representatives acceded to demands for land cession under some duress if not a threat of attack during intermittent war.”133 sioux displeasure about the 1889 act is not just implied by the historical context of the dealings. a delegation of sioux leaders travelled to washington, d.c. the year before the 1889 document took effect to discuss their desire to keep the great sioux reservation intact. leader john grass, a member of the blackfoot sioux, protested so publicly that his complaints were documented in the october 11, 1888 edition of the new york times.134 132 herbert t. hoover, s.d. state hist. soc!y, the sioux agreement of 1889 and its aftermath (1989), https://www.sdhspress.com/journal/south-dakota-history-19-1/the-siouxagreement-of-1889-and-its-aftermath/vol-19-no-1-the-sioux-agreement-of-1889and-its-aftermath.pdf [https://perma.cc/7ps2-s4ph] at 68. 133 id. at 59. 134 indian chief john grass; the sioux treaty from his standpoint. sixty-four chiefs on their way to visit the great father"sitting bull among them, n.y. times, oct. 1, 1888, at 3, https://www.nytimes.com/1888/10/11/archives/indian-chief-john-grass-thesioux-treaty-from-his-standpoint.html [https://perma.cc/92m4-2cx2]. 396 colum. j. race & l. [vol. 2:373 despite the federal government!s clear disregard for the preferences of the great sioux nation, none of these acts articulated clear and plain congressional intent to abrogate the outstanding rights promised to the great sioux nation in the fort laramie treaties. the canons of treaty interpretation hold that a statute or act cannot abrogate a treaty without clear and plain congressional intent.135 the rights and privileges of the indians cannot be abolished by implication, especially with regards to uses such as hunting, fishing, and other activities “established by historical use.”136 therefore, the 1868 fort laramie treaty between the united states and the sioux remains intact, absent the provisions the 1877 and 1889 acts specifically abrogated. neither the plain language of the acts nor the legislative history surrounding the documents support a reading that abolishes the totality of the 1868 treaty. the terms of the 1877 act are precise. the act identifies the exact swath of land the sioux agreed to cede to the united states and outlines the geographic area where the sioux were to forfeit their hunting rights.137 these lands and interests relate to the annexation of the black hills and other lands adjacent to the great sioux reservation, and do not intersect with the rights and interests the oglala sioux may have in relation to the dbp.138 importantly, despite the attention to detail in the 1877 act, the document made no mention of the potential abrogation of any other rights and privileges not expressly stated.139 courts have historically declined to find abrogation of treaty rights by implication, even with regards to treaties whose language more heavily implies the forfeiture of privileges and interests than does the 1877 act. for example, in minnesota v. mille lacs band of chippewa indians,140 the supreme court interpreted treaty language outlining broad renunciation of rights as insufficient to abrogate chippewa usufructuary rights guaranteed in earlier negotiations. although the terms of the treaty explicitly stated that the “indians do further fully and entirely relinquish and convey to the united states, any and all right, title, and interest, 135 united states v. dion, 476 u.s. 734 (1986). 136 state v. coffee, 556 p.2d 1185, 1189 (idaho 1976). 137 act of 1877, ch. 69, 72, 44th cong. (1877), https://www.loc.gov/law/help/statutes-at-large/44th-congress/session2/c44s2ch72.pdf [https://perma.cc/np3r-b67a]. 138 id. 139 id. 140 minnesota v. mille lacs band of chippewa indians, 526 u.s. 172 (1999). 2021] unenforced promises 397 of whatsoever nature . . . to any other lands,”141 the court found that the chippewa!s rights to hunt, fish, and gather remained intact. the treaty language, although broad enough to cover such usufructuary rights, “does not mention hunting, fishing, and gathering rights.”142 and in fact, the treaty as a whole “is devoid of any language expressly mentioning$much less abrogating$ usufructuary rights . . . [or] providing money for the abrogation of previously held rights.”143 the 1877 act is similarly devoid of express mention of the lands and interests relevant to the modern oglala sioux!s objection to the dbp, nor does it contain broad provisions relinquishing unspecified rights.144 instead, the 1877 act is a detailed document that leaves out the majority of usufructuary rights promised to the great sioux nation in 1851 and 1868.145 absent clear language in the statute or act directing abolishment of treaty provisions, courts can still find that congress abrogated a treaty document if it is clear that the legislators contemplated such abrogation and decided to draft accordingly.146 however, the legislative history surrounding the 1877 act provides no rationale for abrogation of the 1868 fort laramie treaty. the explicit purpose of the 1877 act was to “secure to the citizens of the united states the right to mine the black hills for gold.”147 this purpose was underscored by the previous settlement patterns of miners who flooded the area despite the 1868 treaty protections, and the united states military shared this goal.148 in a letter dated november 9, 1875, general sheridan describes meeting with president grant and other cabinet personnel and deciding to officially withdraw military forces and allow miners to flood the black hills.149 the president then authorized a commission to draft the 1877 act with specific instructions to annex the black hills.150 nowhere in the history of the 1877 act is there explicit legislative intent to fully abrogate the 1868 fort laramie treaty nor the treaty rights to hunt outside of the black hills. 141 id. at 195. 142 id. 143 id. 144 act of 1877, supra note 137. 145 id. 146 united states v. dion, 476 u.s. 734 (1986). 147 united states v. sioux nation of indians, 448 u.s. 371, 378 (1980). 148 id. 149 id. 150 getches et al., supra note , at 404. 398 colum. j. race & l. [vol. 2:373 the terms of the 1889 act are even more narrow. the document only addresses the restructuring of the great sioux reservation and is entitled “[a]n act to divide a portion of the reservation of the sioux nation of indians . . . .”151 there is sparse legislative history surrounding the document, but from its plain text it is clear that, as was true for the 1877 act, there was not clear and plain congressional intent to abrogate any fort laramie treaty provisions other than those directly relating to the formation of the great sioux reservation. therefore, despite the historical and practical significance of the 1877 and 1889 documents, they do not affect the off-reservation hunting rights of the oglala sioux in the context of the dbp. iv. applications of treaty rights principles to the dewey burdock project the dewey burdock project is a proposed mining operation that would use in-situ leach mining152 for uranium removal.153 the dbp site will cover 10,000 acres and is located on “1868 fort laramie treaty land in custer and fall river counties adjacent to the pine ridge indian reservation and upstream on cheyenne river tributaries.”154 the oglala sioux$ the band of the sioux that lives on the pine ridge indian reservation$oppose the project.155 the environmental protection agency (epa), at the time of this writing, is considering renewal of dbp mining licenses.156 the oglala sioux 151 act of 1889, ch. 405, 406, 50th cong. (1889), https://www.loc.gov/law/help/statutes-at-large/50th-congress/session2/c50s2ch405.pdf [https://perma.cc/fzv9-ue72]. 152 in-situ leach mining is a method of uranium extraction wherein a chemical solution is pumped into the uranium ore, and the metal is extracted through the groundwater to avoid surface-level land disturbance. in situ leach mining of uranium, world nuclear ass!n, https://www.worldnuclear.org/information-library/nuclear-fuel-cycle/mining-of-uranium/in-situleach-mining-of-uranium.aspx [https://perma.cc/9cfb-knek] (sept. 2020). 153 epa public comments, supra note 3. 154 nauman, supra note 4. see infra figure 1 (providing a visual representation of the dbp project area). 155 id. 156 the public comment period on epa renewal of two permits associated with the dbp closed on december 11, 2019. the epa is now considering those comments, as well as others from 2017, to make a decision about the project!s status. public notice: epa dewey-burdock class iii and class v injection well draft area permits, 2019, env!t prot. agency (aug 26, 2019), https://www.epa.gov/uic/epa-dewey-burdock-class-iii-and-class-vinjection-well-draft-area-permits-2019 [https://perma.cc/uv3c-rxf4]. 2021] unenforced promises 399 have an opportunity to contest the dbp as a violation of their protected treaty rights under the 1868 fort laramie treaty because it potentially defies the implied reservation of water rights, found in winters, by jeopardizing the water supply of the reservation. it may also disrupt treaty protected oglala sioux hunting rights not considered in the nrc!s permit analysis. figure 1: map of the dewey burdock project and surrounding area157 a. judicial review and procedural posture of the dbp the nrc!s mission is to “license[] and regulate[] the nation!s civilian use of radioactive materials to provide reasonable assurance of adequate protection of public health and safety, and to promote the common defense and security, and to protect the environment.”158 certain privately-owned and operated projects that relate to nuclear materials, such as the 157 map of the dewey burdock project area (illustration), in seth tupper, oglala sioux tribe appeal seeks survey of uranium mine site, s.d. pub. broadcasting radio (jan. 23, 2020), https://listen.sdpb.org/post/oglalasioux-tribe-appeal-seeks-survey-uranium-mine-site [https://perma.cc/7r8nf45w] (crediting the nuclear regulatory commission for the map). 158 u.s. nuclear regulatory comm!n, 2018"2019 information digest, nrc at a glance, https://www.nrc.gov/docs/ml1822/ml18226a117.pdf [https://perma.cc/nk25gs36] (last visited jan. 7, 2021). 400 colum. j. race & l. [vol. 2:373 dbp, are approved and overseen by the nrc.159 like other agencies which oversee public and private developments, the nrc is bound to consider certain federal statutes when reviewing project proposals, such as nepa and the national historic preservation act (nhpa).160 in accordance with the administrative procedure act (apa), federal agencies must open certain decisions, such as the approval of certain licenses or the promulgation of rules, for public comment.161 the oglala sioux were among the many parties that submitted comments during the public comment period of the dbp!s license approval process.162 the tribe eventually challenged the license in court, contending that the nrc had not adequately addressed the dbp!s impact on the 1868 fort laramie treaty protections.163 in their public comment, the oglala sioux challenged the scientific analysis of the nrc regarding the dbp and raised concerns about the cumulative effects of uranium from the dbp in the watershed encompassing the reservation.164 however, federal courts only have jurisdiction to review final agency actions.165 therefore, the ongoing issue of the potential water quality impacts of the dbp was not ripe for review when the oglala sioux brought suit in d.c. circuit court in 2018. instead, the tribe challenged whether the nrc!s decision to keep the project license for the dbp active while the nrc investigated water quality, and other potential project impacts on tribal welfare, violated nepa!s requirement that agencies take a “hard look”166 at the environmental and cultural impacts 159 id. 160 section 102 of the national environmental policy act directs federal agencies to prepare detailed statement on environmental impacts of projects, including the consideration of alternatives to project construction. 42 u.s.c. § 4332(2)(c). similarly, section 106 of the national historic preservation act mandates that federal agencies to “take into account” the effects of projects on historic, including native, property prior to expending federal funds or issuing license approvals. 54 u.s.c. § 306108. 161 5 u.s.c. §§ 551"559 (2011). 162 epa public comments, supra note 3. 163 oglala sioux tribe v. u.s. nuclear regul. comm!n, 896 f.3d 520 (d.c. cir. 2018). 164 epa public comments, supra note 3, at 164. 165 see 28 u.s.c. § 2342(4) (“[a]ll final orders of the atomic energy commission made reviewable by section 2239 of title 42.”). 166 see robertson v. methow valley citizens council, 490 u.s. 332, 350 (1989) (“the sweeping policy goals announced in § 101 of nepa are thus realized through a set of #action-forcing! procedures that require that agencies take a #hard look! at environmental consequences.” (internal citations omitted)). 2021] unenforced promises 401 of agency actions.167 in oglala sioux tribe v. u.s. nuclear regulatory commission,168 judge garland found that these actions violated nepa and remanded the decision to keep the license active back to the nrc.169 judge garland noted that the court did “not have jurisdiction over the bulk of the rulings challenged by the oglala sioux tribe” due to the lack of finality in the nrc!s 2016 determinations on the dbp.170 the oglala sioux petition challenging both the accuracy and the depth171 of the nrc!s review of groundwater impacts was still in internal nrc review and thus was procedurally barred from consideration by the d.c. court of appeals. only the nrc and the atomic safety and licensing board have deemed the agency!s groundwater impacts analysis of the dbp sufficient. no federal court has reviewed this decision.172 now that the nrc!s rulings on the dbp are final, the oglala sioux are procedurally situated to challenge the nrc!s decision based on the winters implied water protections. b. implied water rights the winters doctrine of reserved water rights holds that tribes are entitled to sufficient water to support the original purpose for creating their federal reservations.173 under the 1868 treaty of fort laramie, the oglala sioux have a right to sufficient water to support the great sioux reservation, and thus, to support the present-day pine ridge indian reservation. the oglala sioux claim that the dbp will directly affect the cheyenne river$which is interconnected with the madison and minnelusa aquifers$the groundwater, and cheyenne headwaters.174 the oglala sioux contend that these bodies of water have the potential to impact baseline tribal water 167 oglala sioux tribe v. u.s. nuclear regul. comm!n, 896 f.3d 520, 530"31 (d.c. cir. 2018). 168 id. 169 id. at 539. 170 id. at 538. 171 public comments on the proposed project focused not only on the perceived strength of the groundwater analysis, but also on the nrc!s failure to consider the existing threats to the cheyenne river when predicting the effects of dbp. the oglala sioux assert a risk of cumulative impacts to the cheyenne watershed, both upstream of and adjacent to the pine ridge indian reservation, due to a history of agricultural pollution and existing upstream uranium mining waste. epa public comments, supra note 3. 172 powertech (usa), inc.; establishment of atomic safety and licensing board, 75 fed. reg. 13141 (mar. 18, 2010) (notice). 173 winters v. united states, 207 u.s. 564 (1908). 174 epa public comments, supra note 3, at 283. 402 colum. j. race & l. [vol. 2:373 quality.175 as explained above, winters prohibits deprivation of water on tribal land if doing so is contrary to the purpose of the treaty which established the reservation in question.176 now that the oglala sioux are procedurally situated to bring a case about the dbp and other uranium mining projects! potential impacts on their reservation waters, they are entitled to relief, so long as their experts can prove this harm. polluting the ground and surface water that residents of the pine ridge indian reservation use for drinking, agriculture, and bathing contravenes the purpose of the reservation, which was created with the intent to provide a home for members of the great sioux nation. article xv of the 1868 fort laramie treaty acknowledges the intended longevity of that goal, saying that the sioux “will regard said reservation their permanent home.”177 the purpose of providing a permanent residence for the oglala sioux is fundamentally at odds with the virtual elimination of clean and safe water sources on the reservation. the winters right to water, as later courts have held, includes the right to water free from contamination or degradation, not just the right to have water itself flow through the land.178 the dbp cannot be permitted to infringe upon these winters rights by polluting reservation waters with uranium. although the court in oglala sioux did not yet have the jurisdiction to review the oglala sioux!s claims regarding the nrc!s inadequate consideration of baseline water quality impacts, the tribe put forth the testimony of hydrologist dr. robert e. moran179 in their briefing. dr. moran had over forty years of professional experience related to water quality, hydrogeology, and geochemical work at the time of filing.180 he earned his ph.d. from the university of texas at austin in geological sciences, and his thesis work explored trace contamination of metals in colorado streams.181 in his capacity 175 id. 176 winters, 207 u.s. at 577. 177 treaty of fort laramie, supra note 116, art. xv. 178 united states v. gila valley irrigation dist., 920 f. supp. 1444, 1454"55 (d. ariz. 1996) (issuing an injunction to prevent upstream activities which harm water quality in an effort to “restore to the apache tribe water of sufficient quality to sustain commercial production” of crops). 179 final opening brief of petitioner oglala sioux tribe at 31, oglala sioux tribe v. u.s. nuclear regul. comm!n, 896 f.3d 520 (d.c. cir. july 20, 2018) (no. 17-1059). 180 dr. robert moran, michael-moran assocs., llc, https://remwater.org/#experience [https://perma.cc/jz24-zabs] (last visited jan. 7, 2021). 181 id. 2021] unenforced promises 403 as a consultant, he has worked with public and private organizations, citizens, tribes, and government agencies.182 in his original report to the nrc, dr. moran asserted that the dbp!s environmental impact statement (eis)183 did not sufficiently consider the effects of past mining operations and other contamination to the watershed; therefore, it could not have accurately analyzed the baseline groundwater quality of the aquifers which the dbp could affect.184 the winters doctrine compels the enjoining of the project if such impacts are proven, even if they do not rise to the level of danger which might implicate other common law rights. indians, like most other classes of plaintiffs, can pursue legal relief for groundwater contamination without pre-existing treaty rights. for example, plaintiffs can bring tort claims such as negligence and nuisance185 against parties responsible for groundwater contamination.186 however, these common law claims must meet sometimes stringent standards of harm for injured parties to find relief. in south dakota, an injured party bringing a nuisance claim must show that the defendant!s alleged groundwater pollution is pervasive enough to substantially and unreasonably interfere with the use of their land.187 further, the supreme court of south dakota has been clear that the defendant!s pollution discharge must be both intentional and unreasonable, or they must be both unintentional and negligent in order to be held liable.188 in south dakota, to bring a claim for nuisance based on an unintentional action, or to bring a standalone claim for negligence, a plaintiff must prove not only 182 id. 183 an environmental impact statement is a document prepared as part of an application for an nrc license, detailing all expected impacts of the project on the “human environment.” national environmental policy act at the nrc, supra note 19. it is required by nepa for any “major federal action,” including in this case a uranium mining project. id. 184 opening written testimony of dr. robert e. moran, in the matter of powertech (usa), inc. (june, 20, 2014) (no. 40-975-mla, aslbp no. 10-89802-mla-bd01), https://www.nrc.gov/docs/ml1417/ml14171a785.pdf [https://perma.cc/uuh9-3rn6]. 185 illinois v. city of milwaukee, wis., 406 u.s. 91, 107 (1972) (“[f]ederal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution.”). 186 see allan kanner et al., new opportunities for native american tribes to pursue environmental and natural resource claims, 14 duke envtl. l. & pol!y f. 155 (2003) (discussing indian tort claims in the context of environmental degradation). 187 greer v. city of lennox, 107 n.w.2d 337, 339 (s.d. 1961). 188 kuper v. lincoln-union elec. co., 557 n.w.2d 748, 761 (s.d. 1996) (quoting restatement (second) of torts § 822 (am. l. inst. 1979)). 404 colum. j. race & l. [vol. 2:373 the injury suffered, but also that such an injury was a foreseeable result of the original action.189 these common law claims require a higher standard for assigning liability than the guaranteed right to water protected in winters. under winters, courts need not determine whether an action is unreasonable, nor whether the harm at issue was foreseeable by the actors being accused. instead, courts look at whether the deprivation190 or contamination191 of water frustrates the original purpose of the indian reservation. therefore, the implied treaty protection to water under winters entitles the oglala sioux to a more favorable, consequence-based standard than does tort law. it is not uncommon for tribal rights and interests to be treated differently than those of the average american citizen under the law. for example, although project applicants seeking approval under nepa can meet federal standards through mitigation$or by generating environmental benefits outside of a project area to offset harms$impacts to tribal fishing rights cannot be mitigated, and instead must be avoided.192 here, if the dbp impacts nearby water quality, courts need not determine whether the project actions were reasonable, nor whether the harms were foreseeable. if the oglala sioux were to raise their claim about the potential adverse impacts of the dbp on water quality, the d.c. circuit must only decide whether those impacts frustrate the original purpose of the pine ridge indian reservation. c. off-reservation hunting rights the oglala sioux may also have a simpler remedy to address the dbp by focusing on off-reservation hunting rights rather than water rights. the oglala sioux have argued that the nrc did not adequately consider their implied water rights, but a court determining whether that is true would have to rely on scientific and expert analysis on the dbp!s water quality impacts. in contrast, the oglala sioux can simply point out that the hunting rights preserved in the 1868 fort laramie treaty have been outright ignored. the oglala sioux!s treaty-protected 189 rikansrud v. city of canton, 116 n.w.2d 234, 239 (s.d. 1962). 190 winters, 207 u.s. at 577. 191 united states v. gila valley irrigation dist., 920 f.supp. 1444, 1454-55 (d. ariz. 1996). 192 bart j. freedman & benjamin a. mayer, considering the difference: treaty rights and nepa review, law360 (aug. 29, 2016), https://www.law360.com/articles/833840/considering-the-difference-treatyrights-and-nepa-review [https://perma.cc/7pxd-54mq]. 2021] unenforced promises 405 hunting rights are not mentioned a single time in the 614-page eis discussing the human and ecological impacts of the dbp.193 in addition to the dbp!s obligation to consider the oglala sioux!s hunting rights, the dbp is required to consider all project impacts relating to indian treaty rights, culture, and religion. nepa calls for assessment of risks to interests which are “aesthetic, historic, cultural, economic, [or] social . . . whether direct, indirect, or cumulative,”194 including historic treaty rights.195 further, the nrc!s own provisions require “an analysis of significant problems and objections raised by . . . any affected indian tribes.”196 although the court in oglala sioux did not reach the issue of hunting rights because it was absent from both the eis and the complaint, it did consider the dbp!s obligation to assess the religious and historic value of the black hills under this provision of nepa.197 the court found that both nepa and the nhpa obliged the nrc to withhold project approval since the dbp had not completed cultural and religious interest surveys about the sacred site.198 further, the court held that the nrc acted in a manner that was “arbitrary and capricious” when it permitted the dbp license to remain active despite failing to meet nepa standards. as a result, it remanded the dbp!s license to the nrc for reconsideration of the status of the license while the dbp worked to cure the nepa deficiency.199 the arbitrary and capricious standard is the bar at which an agency action can be overturned by the courts; when an action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”200 courts have the authority to set aside or outlaw the agency decision. an agency acts in an arbitrary and capricious manner when it inadequately considers federal requirements, as the nrc did with the nepa requirements to assess the religious and cultural impacts of the dbp. however, an agency action can also be considered arbitrary and capricious where it “entirely failed to consider an important aspect of the 193 dewey-burdock eis, supra note 20. 194 40 c.f.r. § 1508.8 (2019). 195 tribal treaty rights in the section 106 process, advisory council on historic pres. (feb. 2020), https://www.achp.gov/nativeamerican/information-papers/tribal-treaty-rights [https://perma.cc/bgs4zref]. 196 10 c.f.r. § 51.71(b) (2020). 197 oglala sioux tribe v. u.s. nuclear regul. comm!n, 896 f.3d 520, 530"31 (d.c. cir. 2018). 198 id. 199 id. 200 5 u.s.c. § 706(2)(a). 406 colum. j. race & l. [vol. 2:373 problem.”201 here, the nrc has entirely failed to consider the hunting rights of the oglala sioux, which may be cause for a reconsideration of the dbp license. 1. “in such numbers as to justify the chase” article xi of the 1868 fort laramie treaty lays out for the sioux terms which “reserve the right to hunt . . . so long as the buffalo may range thereon in such numbers as to justify the chase.”202 in applying the canons of treaty interpretation, these terms must be read in the manner that the sioux signing the treaty would have understood them,203 and ambiguities in the treaty language must be understood broadly and favorably to the sioux.204 interpreting these treaty terms in the manner in which the sioux would have understood them, the treaty allows buffalo hunting on the specified off-reservation lands, so long as the sioux can justify the effort to chase the herd. courts have consistently interpreted off-reservation hunting and fishing servitudes to guarantee indian use of resources, despite local government205 and settler206 inconvenience. for example, the court in united states v. winans interpreted treaty language protecting yakima fishing rights as impliedly prohibiting the state of washington from regulating fisheries in a way that impinged upon indian use.207 the court, using the canons of interpretations, found that the tribe never would have agreed to a document that gave the united states control over the indians! main food source.208 a similar logic applies to the oglala sioux because the 1868 treaty of fort laramie discussed retained 201 motor vehicle mfrs. ass!n u.s., inc. v. state farm mut. auto. ins. co., 463 u.s. 29, 43 (1983). 202 treaty of fort laramie, supra note 116, art. xi. 203 see, e.g., choctaw nation v. oklahoma, 397 u.s. 620, 631 (1970); united states v. shoshone tribe, 304 u.s. 111, 116 (1938); starr v. long jim, 227 u.s. 613, 622"23 (1913); worcester v. georgia, 31 u.s. (6 pet.) 515, 582 (1832) (cases applying this canon of interpretation to find that terms should be read as the indians would have understood them). 204 see, e.g., mcclanahan v. state tax comm!n, 411 u.s. 164, 174 (1973); carpenter v. shaw, 280 u.s. 363, 367 (1930); winters v. united states, 207 u.s. 564, 576"77 (1908) (cases applying this canon and reading ambiguities generally in favor of the sioux). 205 see, e.g., united states v. winans, 198 u.s. 371 (1905). 206 see, e.g., washington v. wash. state com. passenger fishing vessel ass!n, 443 u.s. 658 (1979). 207 winans, 198 u.s. at 381"82. 208 id. 2021] unenforced promises 407 hunting rights to buffalo, which was the main source of sioux food at the time of signing.209 even if the hunting rights provision of the 1868 fort laramie treaty is seen as ambiguous, that ambiguity must be resolved in favor of the sioux signatories.210 if the plain language of a treaty document allows two potential inferences about treaty language$one “which would support the purpose of the agreement and the other impair or defeat it”211$courts must favor the first interpretation.212 one potential ambiguity may exist in interpreting which party, the indians or the united states, is empowered to decide the size of a buffalo herd which can “justify”213 chase. one of the purposes of the 1868 fort laramie treaty was to bring peace between the indians and the white settlers who were encroaching on sioux land and inhibiting their traditional way of life.214 treaty language granting the united states the authority to terminate hunting rights crucial to the cultural heritage and subsistence215 of the sioux people likely would not promote peace. further, resolving this ambiguity in the 1868 treaty in favor of the indians supports a reading that grants autonomy to the sioux to decide whether a buffalo hunt is worthwhile. a seventh circuit case applies similar logic. at issue in lac courte oreilles band of lake superior chippewa indians v. voigt was the meaning of an ambiguous phrase.216 a treaty between the chippewa and the united states provided that the treaty would remain in effect “during the pleasure of the president of the united states.”217 one way to construe this language is to allow the treaty to be terminated at the will of the 209 see generally richard b. williams, history of the relationship of the buffalo and the indian, tanka, http://www.tankabar.com/cgibin/nanf/public/viewstory.cvw?sessionid=<<sessionid>>&sectionname=buffalo nation&storyid=61954&commentbox= [https://perma.cc/7szj-jdu7] (arguing that the survival of tribal societies is dependent on buffalo). 210 see, e.g., mcclanahan v. state tax comm!n, 411 u.s. 164, 174 (1973); carpenter v. shaw, 280 u.s. 363, 367 (1930); winters v. united states, 207 u.s. 564, 576"77 (1908). 211 winters, 207 u.s. at 577. 212 id. 213 treaty of fort laramie, supra note 116, art. xi. 214 linda darus clark, sioux treaty of 1868, nat!l archives (sept. 23, 2016), https://www.archives.gov/education/lessons/sioux-treaty [https://perma.cc/4qqx-q4r6]. 215 see generally williams, supra note 209 (discussing the relationship between the sioux and wild buffalo). 216 lac courte oreilles band of lake superior chippewa indians v. voigt, 700 f.2d 341 (7th cir. 1983). 217 id. at 356. 408 colum. j. race & l. [vol. 2:373 president. the other interpretation is that the treaty remains active so long as the tribes do not disobey a treaty provision, which would cause the president displeasure. the court took the latter interpretation to resolve this ambiguity in favor of the chippewa and to apply the treaty terms as the indians would have understood them.218 the potential ambiguity in the 1868 fort laramie treaty$in the phrase “reserve the right to hunt . . . so long as the buffalo may range thereon in such numbers as to justify the chase”219$can more easily be resolved than the “pleasure of the president.”220 it is plausible both that a nation would enter into a treaty defined in length by the whims of its leader, and also that it would expire upon the disobedience of one of the signatories. it is less plausible that the federal government would make rights contingent on their ability to judge which hunts are justified without experience in nomadic buffalo hunting. it is even less plausible that, taking the terms of the treaty as the indians would have understood them, the sioux would have signed a treaty which makes the right to hunt their primary food source contingent on the caprices of an american definition of what would “justify the hunt.”221 moreover, the other canon, which resolves ambiguities broadly in favor of tribal signatories, supports a definition of “justify”222 that gives the oglala sioux the authority to determine what number of buffalo justifies their own hunt. only once has a court suggested that an executive of the united states federal government had the authority to define for the oglala sioux what “justifies”223 a hunt. a 1942 court of claims case, sioux tribe of indians v. u.s., incidentally addressed the issue in response to a claim by several bands of the sioux against the united states for compensation for wrongfully seized territory.224 the court quoted the then-secretary of the interior, who had convinced representatives of the sioux to sign away the tribe!s off-reservation hunting rights in nebraska by stating that by the time of their conversation in 1875, “buffalo [wa]s not found on the smoky hill fork of the republican, so as 218 id. 219 treaty of fort laramie, supra note 116, art. xi. 220 lac courte oreilles band, 700 f.2d at 356. 221 treaty of fort laramie, supra note 116, art. xi. 222 id. 223 id. 224 sioux tribe of indians v. united states, 97 ct. cl. 613, 629"30 (1942). 2021] unenforced promises 409 to make it worth while [sic] to hunt them.”225 more importantly, the secretary of the interior admitted that with regards to these nebraska lands, the federal government “cannot stop the white people from going out there” and seizing the land from the indians.226 without an agreement binding the sioux to cede their hunting rights in nebraska, the court would not have been able to accept the secretary of the interior!s opinion without violating the canons of treaty interpretation. no other court has attempted to do so, nor has any case spoken directly to the off-reservation hunting rights that the sioux maintain in south dakota. 2. the term “buffalo” although the nrc acknowledged the presence of big game hunting of elk and deer on dbp lands in the project!s eis,227 this acknowledgement is unlikely to implicate the oglala sioux!s treaty rights to off-reservation hunting. though ambiguities are resolved in favor of the indians, this canon does not permit “reliance on ambiguities that do not exist.”228 the treaty specifies that the sioux who signed it are permitted to hunt “buffalo” on the original boundaries of their land as defined in 1868. as described above,229 the sioux retained off-reservation hunting rights, despite ceding physical occupation of the land. taking terms as the sioux would have understood them, it is unlikely that “the buffalo” would have stood as a placeholder for all wild game because the animal holds a distinct importance in sioux culture.230 full understanding of historical context of treaty terms may at times require exploration of the “cultural context”231 of the signatory indians. the lakota are one of three subgroups of regionally and linguistically distinct tribal communities which make up the seven bands of the great sioux nation.232 the oglala sioux are one of the bands of the sioux within the lakota 225 id. at 629. 226 id. at 630. 227 dewey-burdock eis, supra note 20. 228 south carolina v. catawba indian tribe, inc., 476 u.s. 498, 506 (1986). 229 see supra part ii.b (explaining that the rights and privileges of indians will respect to hunting are not abolished by implication and that the 1868 fort laramie treaty between the united states and the sioux remains intact, absent the provisions the 1877 act specifically abrogated). 230 williams, supra note 209. 231 menominee indian tribe of wis. v. thompson, 922 f.supp. 184, 199 (w.d. wis. 1996). 232 birchfield, supra note 111. 410 colum. j. race & l. [vol. 2:373 subgroup.233 buffalo have always occupied a special place in lakota culture: buffalo heads feature prominently in many religious lakota ceremonies, including the sun dance, and buffalo symbolism is consistent across lakota culture.234 buffalo meat has historically been the predominant food source of the lakota, and the relationship between the two populations is beyond the western conceptualization of predator and prey.235 oglala writer richard williams wrote of this connection: “[t]he adage #you are what you eat! was never more applicable than in the symbiotic relationship between the buffalo and the plains indian. the plains indian culture was intrinsic with the buffalo culture. the two cultures could not be separated without mutual devastation.”236 moreover, the lakota word for buffalo, t!at!á!ka (or its english transliteration tatanka), is distinct from the lakota words for other game such as elk (he!áka or hexaka) and deer (t!á!!a or tahca).237 the deep cultural ties and linguistic distinctions between the lakota sioux and the buffalo make it unlikely that the sioux signing the 1868 fort laramie treaty would have understood buffalo to be synonymous with any other presence of wild game. however, even if other game is not protected by treaty terms preserving the oglala sioux!s buffalo hunting rights, the nrc!s failure to consider this treaty right in the context of the dbp remains unjustified. although many refer to wild buffalo as part of the distant history of the plains, there are still herds of buffalo in and around the pine ridge indian reservation.238 these herds graze on the pine ridge indian reservation as well as in badlands national park,239 and the approval process for the 233 oglala sioux tribe, travel s.d., https://www.travelsouthdakota.com/trip-ideas/article/oglala-sioux-tribe [https://perma.cc/76j2-s5fp] (last visited jan. 7, 2021). 234 oglala sioux tribe, oglala sioux tribe, https://www.lakotamall.com/importance-of-buffalo [https://perma.cc/4bea9a9z] (last visited nov. 22, 2020). 235 williams, supra note 209. 236 id. 237 sunshine carlow & nacole walker, intensive l/dakota for beginners, standing rock sioux tribal dep!t educ., http://wotakuye.weebly.com/uploads/2/3/7/4/23749479/ldl121_packet.pdf [https://perma.cc/2ra6-cdkl] (last visited nov. 22, 2020). 238 sharon pieczenik, bison hunting on the pine ridge indian reservation, nat!l geographic (aug. 11, 2016), https://blog.nationalgeographic.org/2016/08/11/bison-hunting-on-the-pine-ridgeindian-reservation/ [https://perma.cc/6ed6-yjnd]. 239 katherine rivard, conservation of the badlands bison, nat!l park found. blog, https://www.nationalparks.org/connect/blog/conservationbadlands-bison [https://perma.cc/mzu4-tmag] (last visited nov. 22, 2020). 2021] unenforced promises 411 dbp did not address the potential impact of the project on these animals. though bison numbers have dwindled, tribal and environmental support of remaining herds has been consistent, and buffalo hunting by the oglala sioux still continues.240 at one point in 2013, the buffalo population on the pine ridge indian reservation was estimated to be as low as 900.241 even at 2013 levels, the oglala sioux deemed this number satisfactory to justify a hunt.242 since 2013, conservation efforts by tribal and environmental organizations have focused on increasing herd size and expanding herd range,243 which would also increase the potential for buffalo hunting. the oglala sioux have continuously exercised their treaty right to hunt buffalo on and off of the pine ridge indian reservation. in recent years, public interest in the oglala sioux!s buffalo hunt has permeated mainstream american media.244 with that trend has come substantial documentation of the oglala sioux exercising their treaty right to hunt buffalo.245 in 2016, a national geographic employee documented his experience hunting buffalo with the oglala sioux,246 and a separate video documentary detailing a hunt with members of the tribe was released on amazon video in june 2019.247 moreover, buffalo are still part of the economic livelihood of some oglala sioux. tanka is a food company run by “oglala lakotas on the pine ridge reservation, sd, with a deep commitment to helping the people, the buffalo and mother earth.”248 the site features nutritional bars based on traditional recipes and made from “high-protein, prairie-fed buffalo and tart-sweet cranberries.”249 these bars, which exploded into success in 2018, were featured in grocery stores like whole foods 240 russell contreras, #the buffalo hunt! seeks to show tribe in a new light, assoc. press (june 7, 2019), https://apnews.com/24e9dea429774b75bd1804b89ee2ad25 [https://perma.cc/z67r-hzlh]. 241 katie gustafson, bringing the bison home, world wildlife fund (june 13, 2013), https://www.worldwildlife.org/stories/bringing-the-bison-home [https://perma.cc/gp6f-cykr]. 242 id. 243 id. 244 see, e.g., pieczenik, supra note 238; contreras, supra note 240 (focusing on, and romanticizing, the oglala sioux!s buffalo hunting technique). 245 pieczenik, supra note 238. 246 id. 247 contreras, supra note 240. 248 ancient nutrition for today!s healthy lifestyle, tanka, http://www.tankabar.com/cgi-bin/nanf/public/main.cvw [https://perma.cc/lqp4fzmy] (last visited nov. 22, 2020). 249 id. 412 colum. j. race & l. [vol. 2:373 for a brief period, and are now predominantly available online.250 although the brand has scaled back, it represents a well-known business that generates revenue for members of the oglala sioux tribe based around buffalo products.251 the full range of the buffalo herd or herds on and near the pine ridge indian reservation is unclear, as is whether the lands beneath the dbp overlap with their grazing areas. it is also unknown whether, or to what extent, changes in water composition and construction noise associated with the project might impact the well-being of the animals or the oglala sioux buffalo hunt. this information is unknown because the nrc did not conduct any studies nor issue any analyses on the impact of the project on the oglala sioux!s treaty right to hunt buffalo on the land covered in the 1868 fort laramie treaty. to produce a comprehensive eis, as nepa requires, an analysis of the project!s impact on treaty-protected hunting rights was necessary because the dbp will be built on land over which the oglala sioux have retained hunting rights and as well as on land adjacent to the pine ridge indian reservation. the failure of the nrc!s permitting analysis regarding dbp to address the sioux!s hunting rights is arbitrary and capricious within the meaning of the apa, and the project should not proceed without this crucial evaluation. d. dbp as a property loss deserving of monetary compensation although ensuring continued fulfillment of oglala sioux treaty rights by analyzing and limiting the impacts of the dbp is most appropriate here, at minimum, the oglala sioux are entitled to monetary compensation for the value of their lost treaty rights, should the project continue. this is because the dbp, if constructed, would constitute a loss of oglala sioux treaty interests conceivable as either a fifth amendment taking by the united states, or as property damage resulting from the actions of agarza uranium. 250 marilyn noble, one year after native-owned tanka bar had lost nearly everything, the buffalo are on their way back, counter (jan. 24, 2020), https://thecounter.org/tanka-bar-niman-ranch-bison-grassfed/ [https://perma.cc/egs4-yakx]. 251 id. 2021] unenforced promises 413 1. dbp as a fifth amendment taking as the supreme court found in sioux nation,252 it is possible to acknowledge and resolve a breach of treaty terms by awarding the harmed tribe financial compensation for their lost resources or land. there is no dispute that the united states government has the ability to breach or abrogate treaty terms to which it once agreed.253 however, it is also well-established that the government has a duty to act within the bounds of its trustee obligation in caring for the needs of the tribes.254 there is an inherent conflict of interest when the united states acts both as trustee of indian assets and as a governing body exercising its eminent domain power in acquiring land. this conflict is discussed in shoshone tribe v. united states255 and relied upon in the sioux nation decision. when the united states government acquires land from a tribe, the exchange is a taking unless congress makes a “good faith effort to give the indians the full value of the land.”256 the united states is not permitted “to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation . . . for that would not be an exercise of guardianship, but an act of confiscation.”257 the court, in sioux nation, found that the 1877 act did not represent a good-faith effort to negotiate a fair deal, and thus annexing the black hills constituted a taking.258 the further reduction of these lands in 1889 would likely fare no better under an analysis of fair dealings. sioux nation was based upon the united states! failure to adequately financially compensate the sioux for their land, and also on the united states! outright disregard for the 1868 fort laramie treaty!s tribal voting procedures for treaty ratification$both characteristics of american dealings were also true of the federal government!s actions in 1889.259 252 united states v. sioux nation of indians, 448 u.s. 371, 373 (1980). 253 lone wolf v. hitchcock, 187 u.s. 553, 566 (1903). 254 see supra text accompanying note 55 (explaining the trust relationship). 255 shoshone tribe v. united states, 299 u.s. 476 (1937). 256 three tribes of fort berthold reservation v. united states, 390 f.2d 686, 691 (ct. cl. 1968). 257 united states v. creek nation, 295 u.s. 103, 110 (1935) (internal citations omitted). 258 united states v. sioux nation of indians, 448 u.s. 371, 409 (1980). 259 hoover, supra note 132; see also the discussion of the 1889 act in part iii.b. 414 colum. j. race & l. [vol. 2:373 the united states continued to redefine sioux lands after the 1877 act, but it never adhered to the 1868 fort laramie treaty requirements that three-fourths of the adult male sioux must assent to changes.260 the continued, unilateral, and, often, forced land exchanges between the united states and the seven bands of the sioux have not escaped domestic and international attention. although sioux nation aimed to settle the issue of the federal taking of the black hills, subsequent lawsuits,261 congressional bills,262 presidential policy stances,263 and united nations investigations264 have all attempted to address the 260 treaty of fort laramie, supra note 116, art. xii. 261 see greenhouse, supra note 131 (the oglala sioux independently sued after sioux nation, seeking “the [black hills] land plus $10 billion in compensation for the removal of nonrenewable resources and $1 billion additional in damages for #hunger, malnutrition, disease and death.!” the supreme court denied certiorari.). in 2011, the district of south dakota, southern division, dismissed another claim for physical control of the black hills. different horse v. salazar, 2011 wl 3422842 (d.s.d. aug. 4, 2011). 262 senator bill bradley from new jersey proposed in 1985 “a bill to reaffirm the boundaries of the great sioux reservation to convey federally held lands in the black hills to the sioux nation.” sioux nation black hills act, s. 1453, 99th cong. (1985). bradley sent the bill to committee, where it died, after spending time on the pine ridge indian reservation. wayne king, bradley offers bill to return land to sioux, n.y. times (mar. 11, 1987), https://www.nytimes.com/1987/03/11/us/bradley-offers-bill-to-return-land-tosioux.html [https://perma.cc/f7rv-4fh7]. 263 during his presidential campaign, the lakota county times published a statement by barack obama in support of the lakota!s quest for black hills land restoration, and for tribal sovereignty generally. loretta afraid of bear-cook, pine ridge indian reservation community & district hearings to appoint representatives of the oglala sioux tribe to meet with president barack obama on black hill!s land claim issues and re-affirm that the black hills are not for sale, following an historic gathering of oglala lakota nation, lakota times (sept. 1, 2009), https://www.lakotatimes.com/articles/monday-august24th-2009-for-immediate-press-release/ [https://perma.cc/nsz8-cjz8]. oglala sioux tribal president john yellowbird steele wrote a public letter to obama in response to the press release, stating that the “oglala sioux tribe feels that there are innovative solutions that can fulfill our sacred obligation to protect our aboriginal homelands . . . and still enter into a mutually agreeable accord with the federal government to resolve all the issues involved in the black hills land claim.” brandon ecoffey, lakota country times: oglala sioux tribe eyes land claim talks, indianz (july 11 2016), https://www.indianz.com/news/2016/07/11/lakota-country-times-oglala-siouxtribe-2.asp [https://perma.cc/7eys-v5z8]. 264 in 2012 james anaya, a united nations special rapporteur on the rights of indigenous people, took a 12-day tour of the united states to speak with tribal leaders across the nation. at the end of it, he publicly endorsed land restoration of the black hills. un official calls for us return of native land, bbc news (may 5, 2012), https://www.bbc.com/news/world-us-canada-17966113 [https://perma.cc/7vg3-eb3x]. these findings were officially published in a u.n. general assembly report. see james amaya (special rapporteur on the 2021] unenforced promises 415 inadequacy of financial compensation for the loss of the black hills, and have endeavored to at least partially restore sioux land ownership of the area. as the united states, through unfair dealings, did take the sioux land in the black hills that now sits underneath the dbp construction site, this too could be conceptualized as a fifth amendment taking deserving of compensation. such a finding would entitle the oglala sioux to further financial award than was granted in sioux nation. it may also entitle the tribe to seek restoration of the former sioux lands underneath the project site by allowing federal courts to reconsider the taking of the black hills. such a court would be able to take into account the persistent, ongoing265 efforts of the oglala sioux post-sioux nation to seek restoration of title. 2. private financial liability another remedy available to the oglala sioux would be to seek private damages directly against agarza uranium. though written in the context of a government taking, the supreme court has implied that tribes may be due financial reimbursement for the loss of their off-reservation fishing and hunting rights. in menominee tribe of indians v. united states266$while deciding that the termination act was not meant to fully abrogate usufructuary rights in the treaties it discussed$the court stated: “[w]e find it difficult to believe that congress, without explicit statement, would subject the united states to a claim for compensation.”267 this indicates a potential willingness by the courts to conceptualize usufructuary rights as interests due monetary compensation, which could translate to private financial liability in the context of damages. here, the oglala sioux could levy a common law damages claim for the monetary value of the cultural and nutritional benefits of buffalo hunting lost due to dbp impacts. a quantification of these off-reservation rights would not be entirely novel. the boldt decision marks an example of an explicit determination of the amount of fish owed to the tribes of the pacific northwest by their treaty rights to fish in rights of indigenous peoples), rep. on the situation of indigenous peoples in the u.s., u.n. doc. a/hrc/21/47/add.1 (aug. 30, 2012). 265 see supra text accompanying note 131 (summarizing the oglala sioux!s efforts to restore tribal land title to the black hills). 266 menominee tribe of indians v. united states, 391 u.s. 404 (1968). 267 id. at 413. 416 colum. j. race & l. [vol. 2:373 off-reservation rivers.268 in that case, the tribes were owed between forty-five and fifty percent of all harvestable fish passing through the runs where they had fishing interests.269 the boldt decision demonstrates that a numeric value of an off-reservation right can be determined and utilized to calculate money damages for lost catch. courts regularly valuate abstract concepts, such as potential lost wages of injured workers, in order to adjudicate common law damages claims associated with negligence. in those instances, the monetary reward is estimated as “#the difference . . . between the value of the plaintiff!s services as they will be in view of the harm and as they would have been had there been no harm.!”270 using this formula, federal courts could assess the value of the damage to the oglala sioux!s buffalo hunting from the construction and operation of the dbp. nez perce tribe v. idaho power co.271 details a similar claim for compensation by the nez perce indians. the tribe sought financial reimbursement for the reduction of fish in the snake river, an off-reservation site where they retained a treaty fishing right.272 three dams constructed and operated by idaho power company significantly reduced the fish catch in the snake river.273 although the court declined to find any federal cause of action that would allow collection of monetary damages from idaho power for this harm,274 the details of the nez perce case are distinct from the oglala sioux!s potential claim. the federal power act (fpa) coordinates the development of the united states! hydroelectric projects, and it empowers the federal energy regulatory commission to oversee the licensing and operation of federal dams.275 the fpa also governs the nez perce indians! claim for monetary compensation relating to the snake river dam projects.276 the court in nez perce failed to see a state action at common law which would not be preempted by the fpa!s general damages provisions, which did not provide for compensation for lost usufructuary rights.277 268 united states v. washington, 384 f.supp. 312 (w.d. wash. 1974). 269 id. at 343. 270 metropolitan stevedore co. v. rambo, 521 u.s. 121, 132 (1997) (quoting restatement (second) of torts § 924 (am. l. inst. 1979)). 271 nez perce tribe v. idaho power co., 847 f. supp. 791 (d. idaho 1994). 272 id. at 794. 273 id. 274 id. at 812. 275 id. 276 id. 277 id. 2021] unenforced promises 417 the court further declined to read the tribe!s novel cause of action into fpa section 803(c), which details the liability of potential licensees for damages that their projects cause.278 in determining whether a litigant has a private right of action under a federal statute, the supreme court has held that the “ultimate issue is whether congress intended to create a private cause of action.”279 applying that standard, the idaho court determined that it was inconsistent with the legislative history of the fpa to find a common law cause of action to recover damages for impacts to treaty fishing rights.280 the nrc operates under an entirely different liability scheme, largely due to the high-risk nature of nuclear projects.281 section 170 of the atomic energy act of 1954 provides that the nrc must require certain licensees to obtain liability insurance “to cover public liability claims.”282 the statute defines public liability as “any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a state, or political subdivision of a state, in the course of responding to a nuclear incident or precautionary evacuation),” not including claims related to workers! compensation or war.283 the nrc language regarding project liability is broader than that of the fpa, but this language has not yet been interpreted to allow damages claims relating to indian usufructuary rights. finally, the nez perce court declined to create a cause of action under federal common law, although the court acknowledged that it could have done so.284 in making this decision, the nez perce court stressed that the right to have an 278 16 u.s.c. § 803(c). 279 karahalios v. nat!l fed!n fed. emps., local 1263, 489 u.s. 527, 532 (1989) (quoting california v. sierra club, 451 u.s. 287, 293 (1981)). 280 nez perce tribe, 847 f.supp. at 812. as courts have a long history of denying private rights of action to recover damages under nepa, it is unlikely that the oglala sioux would fare any better than the nez perce in trying to recover under the statutory and regulatory scheme which governs energy development. see mark c. rutzick, a long and winding road: how the national environmental policy act has become the most expensive and least effective environmental law in the history of the united states, and how to fix it, regul. transparency project (oct. 16, 2018), https://regproject.org/paper/national-environmental-policy-act/ [https://perma.cc/3dd3-jn3x]. 281 u.s. gov!t accountability off., gao-04-654, nuclear regulation: nrc!s liability insurance requirements for nuclear power plants owned by limited liability corporations (may 2004). 282 42 u.s.c. § 2210. 283 10 c.f.r. § 140.92, app. b. 284 nez perce tribe, 847 f.supp. at 811. 418 colum. j. race & l. [vol. 2:373 opportunity to catch fish was not equivalent to a vested property interest in a catch of fish; therefore, there was no claim to lost property which they could compensate.285 however, the nez perce court fails to acknowledge that the boldt decision$written fifteen years before the district of idaho heard the nez perce indians! claim$provides support for the exact opposite conclusion.286 as discussed in part i, treaty fishing rights cannot be circumvented or nullified by otherwise legal actions of non-indians.287 further, the boldt decision explicitly held that treaty fishing rights afford indians more than the opportunity to fish, and conferred several tribes of the pacific northwest a specific entitlement of forty-five to fifty percent of all fish passing through the rivers on which the indians have fishing servitudes.288 although the nez perce court would not have been legally bound by the boldt decision, it may have been persuaded by the case. the boldt decision remains a highly influential and well-cited decision, and the ninth circuit has been home to several decades-long cases about interpreting treaty language preserving usufructuary rights.289 there are also normative rationales for granting damages to tribes whose treaty rights have been trampled by private projects. courts might provide a mechanism for indians to demand corporate prioritization of tribal consultation by recognizing federal common law damages claims against private parties that violate treaty interests. if tribes are able to recover the monetary value of their lost treaty rights as a result of environmentally damaging energy infrastructure projects, the corporations behind them would be forced to take that financial burden into consideration when assessing a project!s economic viability. corporations may find extended conversation with tribes about existing treaty interests to be less costly than legal fees and property damage payouts. federal statutes currently require corporations to engage in some consultation with tribes,290 but this system does not mandate a sufficient level of discussion, and is inadequate to address the current onslaught of planned infrastructure projects on and near tribal lands. in the context of the dbp, treaty protections may offer the oglala sioux a mechanism by which they can influence agarza and the federal 285 id. 286 united states v. washington, 384 f.supp. 312 (w.d. wash. 1974). 287 see generally united states v. winans, 198 u.s. 371 (1905). 288 united states v. washington, 384 f.supp. 312 (w.d. wash. 1974). 289 see, e.g., united states v. washington, 520 f.2d 676 (9th cir. 1975). 290 see discussion in part iv a and c of the nepa and nhpa obligations corporations applying for federal agency permits must comport with. 2021] unenforced promises 419 agencies involved in project approval to more meaningfully consult with tribal needs and interests. the current system incentivizes utility companies to carry out bare minimum impact analysis and tribal consultation before developing large swaths of land that may directly impact federally protected indian rights and interests. broadening our understanding of common law damages to hold companies financially accountable for the economic value of the tribal interests these developments destroy would encourage robust analysis of tribal interests before construction to avoid future financial liability. this new system is also a practical one; it would ensure that indians have an opportunity to seek proper compensation for diminished or extinguished treaty rights. the oglala sioux have a treaty-protected right to hunt buffalo in perpetuity, so long as sufficient numbers of the herd exist. therefore, if the dbp is proven to impact the health or size of surrounding herds, or should the construction or operation of the uranium mining impact indians! ability to hunt these animals, the oglala sioux should at minimum be permitted to seek federal compensation at common law. v. conclusion the 1851 and 1868 fort laramie treaties guarantee the oglala sioux access to clean water on the pine ridge indian reservation and to off-reservation buffalo hunting. the winters doctrine of reserved water rights mandates that the quantity and quality of indian water sources be maintained, and the dbp cannot threaten to degrade these tribal waterways. reevaluation of the dbp!s safety with regards to groundwater quality is ripe for judicial review, should the oglala sioux wish to pursue a claim in federal court. additionally, the oglala sioux have a protected right to hunt buffalo on lands in and around the dbp site. this right was ignored by the dbp!s eis, and the nrc has an obligation to consider the oglala sioux!s hunting rights before issuing further permission to develop the dbp. the oglala sioux have legal rights created to maintain their quality of life on the pine ridge indian reservation, and federal agencies such as the nrc should not approve projects which disregard the treaties of the united states, to which we are all still bound. should the project proceed despite these objections, and if the water quality of the pine ridge indian reservation declines, or if hunting by the oglala sioux is impacted, the tribe is due monetary compensation either as a taking of their land and interests, or as private damages for the value of their losses. 420 colum. j. race & l. [vol. 2:373 columbia journal of race and law vol. 11 july 2021 no. 3 article how racial politics led directly to the enactment of the adoption and safe families act of 1997—the worst law affecting families ever enacted by congress martin guggenheim this article is part of a celebration of the magnificent work of dorothy roberts who, more than any other scholar, has brilliantly demonstrated both the highly destructive qualities of the united states’ family regulation system and its relationship to the country’s legacy of slavery. the most vicious feature of the current family regulation system is the almost routine destruction of families resulting from an overly zealous enforcement of the adoption and safe families act of 1997, through which the federal government pays states to permanently banish parents from their children and legally sever the parent-child relationship when children have remained in foster care for fifteen months. this article tells some of the racialized history that led to the enactment of the adoption and safe families act.  fiorello laguardia professor of clinical law, new york university school of law. i am grateful to kate murchison, a member of n.y.u. class of 2021 for outstanding research assistance in the writing of this article. i also gratefully acknowledge support from the filomen d’agnostino research fund. 712 colum. j. race & l. [vol. 11:711 i. introduction ............................................................................. 713 ii. anti-poverty efforts from the johnson administration to the end of the 1970s .......................................................... 716 iii. the reagan years ................................................................ 719 iv. behind all of this is america’s legacy of slavery ............ 721 a. the 1990s and the enactment of the adoption and safe families act of 1997 .................................... 721 v. a question remains: what is the most effective argument for dismantling the family regulation system? ............................................................... 728 vi. conclusion ............................................................................. 732 2021] racial politics of asfa 713 i. introduction i am pleased to participate in this symposium commemorating the publication of dorothy roberts’s ever-moreimportant shattered bonds. this symposium is being held at a propitious time in american history when so many white americans have shown a keen interest in reexamining the history of the united states through the lens of race and are discovering how different our institutions would be if we were not forever living in the recurrent consequences of the legacies of slavery. since this apparent awakening by many white americans, it has become commonplace to point out the many ways racism infects american society. it is unsurprising that most of these recent voices are not black. that’s because, of course, black americans have always understood the extent to which american society is impacted by racism. accordingly, it should also be no surprise that the most prominent voices focused on the impact of racism in this country have, for most of american history, been black voices. dorothy roberts has been writing about this her entire career.1 i am sure that professor roberts would not object if i enlarge the group of vital voices deserving of high praise as part of this celebration. in addition to professor roberts, two of my personal heroes—peggy cooper davis and khiara bridges—are exemplars of brilliant black scholars of american law who have focused with a bead eye on the extent to which racism has gravely damaged america’s “child welfare” system.2 any student of this 1 here are but a sample of her writings: dorothy e. roberts, shattered bonds: the color of child welfare (2002) [hereinafter roberts, shattered bonds]; dorothy e. roberts, killing the black body: race, reproduction, and the meaning of liberty (1997); dorothy e. roberts, digitizing the carceral state, 132 harv. l. rev. 1695 (2019) (reviewing virginia eubanks, automating inequality: how high-tech tools profile, police, and punish the poor (2018)); dorothy e. roberts, child protection as surveillance of african american families, 36 j. soc. welfare & fam. l. 426 (2014); dorothy e. roberts, prison, foster care, and the systemic punishment of black mothers, 59 ucla l. rev. 1474 (2012); dorothy e. roberts, the racial geography of child welfare: toward a new research paradigm, 87 child welfare 125 (2008); dorothy e. roberts, punishing drug addicts who have babies: women of color, equality, and the right of privacy, 104 harv. l. rev. 1419 (1991); dorothy e. roberts, unshackling black motherhood, 95 mich. l. rev. 938 (1997). 2 two years ago, n.y.u. law school’s family defense clinic convened a symposium featuring all three of these scholars. see elie hirschfeld 714 colum. j. race & l. [vol. 11:711 system, which in the rest of this article will be called the “family regulation system,”3 is well-advised to know these writers’ work.4 taken together, more than any other scholars in the field, their work connects the embedded relationship of the current family regulation system and america’s original sin of slavery. symposium on racial justice in the child welfare system transcript, 44 n.y.u. rev. l. & soc. change 129 (2019). 3 after calling this system the “child welfare system” throughout my career, i am now convinced that this language is not neutral. it is not, and never has been, a “child welfare system.” quite the contrary, child welfare is not even within the portfolio of any so-called “child welfare commissioner” anywhere in the united states. a “child welfare commissioner” would surely have in their portfolio the authority to investigate all situations in which children’s welfare are placed at risk. but no commissioner has the authority, for example, to address lead paint poisoning in public housing, or the rigging of lead levels in the public schools, whether in newark, new jersey; new york city; or flint, michigan. harms inflicted in children by environmental racism are not things these commissioners may investigate or put an end to. instead, they have authority only to investigate alleged harms committed on children by their families. thus, renaming these systems “family regulation” is appropriate not only because it feels as if it is a family regulation system. it literally is a family regulation system, exclusively. words matter. permitting this system to continue to be called a child welfare system does a grave disservice to the poor families that get caught up in it. i apologize for taking so long to have gotten here. henceforth, i will only be speaking about the family regulation system in the united states. 4 here is an incomplete list of articles and books written by professors davis and bridges. peggy cooper davis, neglected stories: the constitution and family values (1997); peggy cooper davis, loving v. virginia and white supremacy, 92 n.y.u. l. rev. online 52 (2017); peggy cooper davis & valeria vegh weis, the obama presidency and the confederate narrative, 60 how. l.j. 707 (2017); peggy cooper davis et al., the persistence of the confederate narrative, 84 tenn. l. rev. 301 (2017); peggy cooper davis, “so tall within”—the legacy of sojourner truth, 18 cardozo l. rev. 451 (1996); peggy c. davis, use and abuse of the power to sever family bonds, 12 n.y.u. rev. l. & soc. change 557 (1983). khiara m. bridges, racial disparities in maternal mortality, 95 n.y.u. l. rev. 1229 (2020); khiara m. bridges, race, pregnancy, and the opioid epidemic: white privilege and the criminalization of opioid use during pregnancy, 133 harv. l. rev. 770 (2020); khiara m. bridges, white privilege and white disadvantage, 105 va. l. rev. 449 (2019); khiara m. bridges, excavating race-based disadvantage among class-privileged people of color, 53 harv. c.r.-c.l. l. rev. 65 (2018); khiara m. bridges, the deserving poor, the undeserving poor, and class-based affirmative action, 66 emory l.j. 1049 (2017); khiara m. bridges, when pregnancy is an injury: rape, law, and culture, 65 stan. l. rev. 457 (2013); khiara m. bridges, poor women and the protective state, 63 hastings l.j. 1619 (2012); khiara m. bridges, privacy rights and public families, 34 harv. j.l. & gender 113 (2011); khiara m. bridges, reproducing race: an ethnography of pregnancy as a site of racialization (2011). 2021] racial politics of asfa 715 in shattered bonds, professor roberts examines how racism shaped and formed the current family regulation system. my contribution to this symposium will be to expand on the story (already well told by professor roberts) of how it came to pass that congress enacted the adoption and safe families act in 19975 (asfa)—the most family destructive law ever enacted since slavery was abolished. asfa encourages states to sever all legal relationships between children and their parents whenever the children have been in foster care for fifteen months, without any requirement of a showing that the parents have harmed their children or that maintaining the relationship would be harmful to them. the law even goes so far as to pay a bonus for each additional child whose familial relationships with their family of origin were permanently destroyed and who were subsequently adopted by a new set of parents year over year. asfa represents the denouement of a calculated retrenchment in federal laws and policies to support families living in poverty that began in earnest in the 1970s. in this article, i tell the background story of afsa’s passage by linking the actions of the 105th congress to federal efforts to support families living in poverty. i do so primarily by exploring the important work of michael katz’s the underserving poor, published in 1989, a definitive text detailing american policy shifts as it relates to supporting families living in poverty in the united states.6 these efforts began in the great depression and were driven to high hopes in the 1960s and 1970s. however, they were largely gutted by an increasingly hostile federal government through the 1970s and 1980s. by the time newt gingrich and tom delay came to power in the mid-1990s, the clinton administration proved too willing to support asfa.7 as we shall see, it is impossible to explain this history— the history of the united states’ unique refusal to enact 5 adoption and safe families act of 1997, pub. l. no. 105-89, 111 stat. 2115 (1997) (codified as amended in scattered sections of 42 u.s.c.). 6 michael b. katz, the undeserving poor (2d ed. 2013) [hereinafter katz, 2d ed.] 7 asfa encourages states to terminate the parental rights of children who have been in foster care for at least fifteen months, regardless of the reason the children were placed in foster care and even when their parents never abused or harmed them. 716 colum. j. race & l. [vol. 11:711 legislation genuinely friendly to families living in poverty and designed to ensure that children born into poverty could nonetheless thrive—without understanding this country’s racial history. it is the principal explanation for the kind of family regulation system currently used in the united states.8 at the end of this article, i raise what i recognize is a controversial question: what is the most effective strategy for taking down the family regulation system? ii. anti-poverty efforts from the johnson administration to the end of the 1970s asfa’s enactment was built on the ruins of the failed efforts since the 1960s to enact federal legislation calculated to ensure that children living in poverty could thrive. the story of that failure begins with the johnson administration’s war on poverty. despite the high-aspiration language of johnson’s antipoverty programs, his administration deliberately avoided the straightest route to attacking poverty: redistributing wealth. instead, johnson’s centerpiece of the war on poverty—the economic opportunity act of 19649—created the community action program, job corps and volunteers in service to america (vista). he was also successful in having congress enact the food stamp act,10 the elementary and secondary education act,11 and the social security act of 1965,12 which created medicare and medicaid. it’s important to appreciate that major economists at the time, including conservatives from the chicago school such as milton friedman, understood that the “the most straightforward way to reduce poverty” was a negative income tax.13 the question then becomes why the johnson administration avoided the more 8 this is a different claim than one that claims the family regulation system currently employed disproportionately impacts black and brown families. that is also true. but, in this article, i will focus on race to explain why we have the current system. 9 economic opportunity act of 1964, pub. l. no. 88-452, 78 stat. 508. 10 food stamp act of 1964, pub. l. no. 88-525, 78 stat. 703. 11 elementary and secondary education act of 1965, pub. l. no. 89-10, 79 stat. 27. 12 social security amendments of 1965, pub. l. no. 89-97, 79 stat. 286. 13 id. 2021] racial politics of asfa 717 straightforward path and chose one calculated in advance to come up short. the answer, unsurprisingly, is race. in a commencement address at howard university in june 1965, johnson told the audience the “great majority of [black americans] . . . are another nation . . . [black] poverty is not white poverty . . . there are differences—deep, corrosive, obstinate differences—radiating painful roots into the community, and into the family, and the nature of the individual.”14 johnson was riffing off of daniel moynihan’s report which included ideas such as, the “racist virus in the american blood stream” is causing “the [black] family in the urban ghettos [to crumble].”15 moynihan’s report called for “the establishment of a stable [black] family structure.”16 instead of giving money to families regarded by the federal government as pathological, the johnson administration went in other directions. even though the johnson administration is well known for waging its war on poverty, it was in the nixon administration that the hope for a guaranteed income in the united states reached its apogee. unfortunately, the early years of nixon’s administration would prove to be the last great hope for progressive poverty legislation to this day. in those early years, congress undertook “the first major attempt to overhaul the social welfare structure erected in the 1930s”17 by proposing the family assistance plan, which included, at its center, guaranteed income for all americans.18 as michael katz explained, the family assistance plan “differed sharply from the service-based strategy of the war on poverty.”19 in its most generous version, it would have guaranteed $3,000 for a family of four without any requirement that a parent seek employment when raising children under the age of six.20 in addition, it would have substantially expanded the food stamp program and 14 lyndon b. johnson, president of the united states, commencement address at howard university (june 4, 1965). 15 id. 16 id. 17 katz, 2d ed., supra note 6, at 136. 18 s. rep. no. 91-1431, at 416 (1970); h.r. rep. no. 92-231 (1971). 19 katz, 2d ed., supra note 6, at 136. 20 the family-assistance plan—a chronology, 46 soc. serv. rev. 603, 605 (1972). 718 colum. j. race & l. [vol. 11:711 automatically linked raises in the guaranteed minimum wage and social security benefits to the rate of inflation.21 the effort founded on the shoals of racial politics, as the racial composition of americans receiving afdc benefits became more diverse. in 1960, 745,000 families received afdc at a cost below $1 billion; by 1972, it was 3 million families at a cost exceeding $6 billion.22 even before the term “welfare queen” was added to our national discourse by then-candidate ronald reagan in 1976,23 federal legislators took note of the darkening complexion of the family members receiving afdc funds over the course of the decade. as michael katz explained, an ever-increasing percentage of afdc recipients through the 1960s were black women who had never married which led to “southern states tack[ing] on punitive regulations, and a welfare backlash sweep[ing] northern cities.”24 even more, katz captured political ideology in the early 1970s, explaining that “afdc clients fused gender, sexuality, and welfare dependence into a powerful image that touched deep, often irrational fears embedded in american culture.”25 the expansion of the welfare rolls—itself a reflection of the diaspora of black families from the south—made the cost of public assistance programs a political hot potato. as the perception became that too many black families were the recipients of welfare, “poor unmarried women with children now became the undeserving poor.”26 we are living with the failure of this legislation to this day. the extent to which the united states fell behind in federal investment for poverty reduction was staggering. consider how different the country would look if congress had committed itself to indexing public assistance benefits to the same extent it concluded that indexing social security benefits was sensible economic policy. in 1970, social security payments exceeded afdc payments by about ten times ($30 billion compared with about $3 billion). but because social security was indexed to keep up with inflation and afdc payments were not, by 1984, social 21 katz, 2d ed., supra note 6, at 136. 22 id. at 140. 23 see ann cammett, deadbeat dads & welfare queens: how metaphor shapes poverty law, 34 b.c. j.l. & soc. just. 233, 244 (2014). 24 michael b. katz, the undeserving poor 68 (1st ed. 1989) [hereinafter katz, 1st ed.]. 25 id. 26 id. at 69. 2021] racial politics of asfa 719 security payments exceeded $181 billion, while afdc payments rose only to $8.3 billion.27 iii. the reagan years as a direct consequence of racial politics, american laws ensured that children being raised by single mothers living in poverty would be unable both to take regular care of them and secure an income. they could do one or the other; but not both. very bad things for families living in poverty followed. according to marion wright edelman, “[c]hildren were slightly worse off in 1979 than in 1969. but from 1979 to 1983 the bottom fell out.”28 by 1982 “the rate of child poverty soared to its highest level since the early 1960s.”29 it was during the reagan administration that a number of theorists, including charles murray, emerged on the scene to enflame racial animus to a new level.30 murray resuscitated the ancient distinction of deserving and undeserving poor, arguing that giving money to the poor only increases poverty.31 by now, efforts to reduce poverty were more explicitly about race. in the 1980s, it became acceptable for reagan officials to nefariously argue that “[w]elfare, it appeared, encouraged young [b]lack women to have children out of wedlock; discouraged them from marrying; and, along with generous unemployment and disability insurance, fostered indolence and a reluctance to work.”32 this invited a more direct way of talking about poor people, as “the underclass.”33 in michael katz’s words, during this decade: the mixture of alarm and hostility that tinged the emotional response of more affluent americans to the poverty of [b]lacks increasingly clustered and isolated in postindustrial cities. what bothered observers most was not their suffering; rather, it was their sexuality, expressed in teenage pregnancy; family patterns, represented by 27 id. at 112–13. 28 id. at 88. 29 id. 30 charles a. murray, losing ground: american social policy, 1950–1980 (1984). 31 katz, 2d ed., supra note 6, at 177 (citing murray, supra note 30). 32 id. at 167. 33 id. at 205. 720 colum. j. race & l. [vol. 11:711 female-headed households; alleged reluctance to work for low wages; welfare dependence, incorrectly believed to be a major drain on national resources; and propensity for drug use and violent crime, which had eroded the safety of the streets and the subways.34 the reagan administration’s practices and policies directly implicated family regulation policy a decade later. reagan was keenly aware of the political value of racializing welfare.35 conservative welfare policy during the 1980s called for a requirement that women receiving public assistance participate in the remunerative work force.36 according to katz, “more than any other goal, conservative welfare reform stresse[d] ‘workfare,’ which usually means forcing women with young children into the workforce.”37 most recipients of public assistance in this period, who in the minds of politicians were black and brown, were “modern paupers,”38 identical to what the connecticut supreme court said about 100 years earlier: next to intemperance, and generally accompanying it, a habit of idleness helps to fill our alms houses with paupers and our jails with criminals. by means of these two causes the burden is imposed on the public of maintaining a worthless class of humanity as well as the great expense of our criminal courts.39 all of this meant that by the end of the 1980s, “children ha[d] become the most impoverished age group in america. since 1974, their situation has worsened at an alarming rate. between 1974 and 1986, the heart of the reagan years, child poverty increased by 40 percent. more than four of every ten [b]lack children were living in poverty.”40 34 katz, 1st ed., supra note 24, at 185. 35 see supra p. 718 and note 23. 36 katz, 2d ed., supra note 6, at 194. 37 katz, 1st ed., supra note 24, at 73. 38 katz, 2d ed., supra note 6, at 89. 39 reynolds v. howe, 51 conn. 472, 477 (1883). 40 katz, 1st ed., supra note 24, at 126. 2021] racial politics of asfa 721 iv. behind all of this is america’s legacy of slavery as isabelle wilkerson explains, the poverty america’s children are forced to endure, “is the price we pay for our caste system. in places with a different history and hierarchy, it is not necessarily seen as taking away from one’s own prosperity if the system looks out for the needs of everyone.”41 quoting jonathan chait, wilkerson makes clear that: few industrialized economies provide as stingy aid to the poor as the united states. in none of them is the principal of universal health insurance even contested by a major conservative party. conservatives have long celebrated america’s unique strand of anti-statism as the product of our religiosity, or the tradition of english-liberty, or the searing experience of the tea tax. but the factor that stands above all the rest is slavery.42 a. the 1990s and the enactment of the adoption and safe families act of 1997 this history set the stage for the 1990s, when the clinton administration cooperated with the house and senate leadership of newt gingrich and tom delay to make life even more difficult for families living in poverty. two laws, above all, stand out. first, they replaced welfare as we knew it by enacting the personal responsibility and work opportunity act of 1996.43 this law ended the afdc program that had its roots in legislation enacted in the 1930s. it was the law which caused peter edelman and mary jo bane, two high-level officials in the health and human administration to resign in protest because, as edelman put it, “i have devoted the last 30-plus years to doing whatever i could to help in reducing poverty in america. i believe the recently enacted welfare bill goes in the opposite direction.”44 41 isabelle wilkerson, caste: the origins of our discontents 353 (2020) [hereinafter wilkerson, caste]. 42 id. at 354. 43 personal responsibility and work opportunity reconciliation act of 1996, pub. l. no. 104-193, 110 stat. 2105. 44 barbara vobejda & judith havemann, 2 hhs officials quit over welfare changes, wash. post, sept. 12, 1996, at a01. 722 colum. j. race & l. [vol. 11:711 the next year, in 1997 when the foster care population neared an all-time high,45 congress enacted the adoption and safe families act.46 it would be difficult to overstate how radical asfa is, a law that no other nation in the world has come close to embracing. asfa encourages states to permanently banish parents from the lives of their children, even when the parents never abused their children or harmed them in any way. it authorizes the destruction of familial relationships for no better reason than a parent, regardless of circumstances, being incapable of securing custody of her child from foster care within a fifteen-month period.47 a parent could lose custody simply for being hospitalized; imprisonment, even for nonviolent offenses, is also a very common reason. the law is responsible for the unnecessary destruction of hundreds of thousands of families in this century. more than two million children’s parents’ rights have been terminated by american courts since asfa was enacted.48 the law was widely embraced by a bipartisan congress, even celebrated by many as a prominent civil rights victory! according to robert gordon, “[a] few newspaper columnists . . . herald[ed] a children’s ‘revolution’ that would be ‘to the abused and neglected children in our nation’s foster-care system what 45 between 1985 and 1997, the foster care population rose by nearly 50% from 276,000 to about 500,000 children. shannon derouselle, welfare reform and the administration for children’s services: subjecting children and families to poverty and then punishing them for it, 25 n.y.u. rev. l. & soc. change 403, 420 (1999). see also richard wexler, take the child and run: tales from the age of asfa, 36 new eng. l. rev. 129, 135 (2001) (citing leroy pelton, for reasons of poverty: a critical analysis of the public welfare system in the united states 6 (1989)). 46 adoption and safe families act of 1997, pub. l. no. 105-89, 111 stat. 2115. 47 42 u.s.c. § 675(5)(e). 48 it is not easy to obtain figures for the number of terminations ordered each year in the united states. the most recent data indicates that more than 71,000 children are in foster care awaiting adoption after their parental rights were terminated. the number of children awaiting adoption throughout the twentieth century has been well above 50,000 each year. that number is considerably smaller than the number of terminations ordered over that time because the total number would include children who were adopted. using the figure 2 million terminations in this century is a very low estimate. see u.s. dep’t of health & human servs., children’s bureau, the afcars report (2018), http://s3.amazonaws.com/ccai-website/afcars_26.pdf [https://perma.cc/jmy9-acqs]. 2021] racial politics of asfa 723 the voting rights act was to [b]lack americans in 1965.’”49 when he signed the bill into law, president clinton promised that asfa would “fundamentally . . . improve the well being of hundreds of thousands of our most vulnerable children.”50 asfa garnered bipartisan support built upon two different claims which buttressed each other in important ways. both reveal a vital truth about how racism impacts beliefs and a community’s capacity to accept certain claims. the driving force behind both was congress’s understanding that most of the children in foster care were non-white. the first claim, advanced by richard gelles, was that the family regulation system was flawed because its ultimate purpose at the time was to preserve families, forcing children to remain in the custody of dangerous parents.51 because of the degree to which the family regulation system had become so deeply racialized, members of congress were highly persuadable that the parents who lost their children to foster care are dangerous child abusers52—even though the overwhelming percentage of children who are separated from their parents and placed into foster care were never abused by their parents.53 facts no longer mattered. the falsehood that almost all of the children who enter foster care were removed from their homes 49 robert m. gordon, drifting through byzantium: the promise and failure of the adoption and safe families act of 1997, 83 minn. l. rev. 637, 638 (1999) (citing jeff katz, finally the law puts these kids’ interests first, milwaukee j. sentinel, dec. 28, 1997, at 1). 50 remarks on signing the adoption and safe families act of 1997, 33 weekly comp. pres. doc. 1863, 1864 (nov. 19, 1997). 51 see richard j. gelles, the book of david: how preserving families can cost children’s lives 152 (1996) (noting “[t]he basic flaw in the child welfare system is that it has two contradictory goals: protecting children and preserving families”). 52 scholars agree that gelles’s inflammatory book, the book of david, supra note 51, which told the story of a child who was suffocated to death by his mother after having been allowed to remain with his parents after a child welfare investigation, played an outsized role in gaining congressional support to enact asfa. see kathleen s. bean, aggravated circumstances, reasonable efforts, and asfa, 9 b.c. third world l.j. 223, 244 (2009). see also john e.b. myers, a short history of child protection in america, 42 fam. l.q. 449, 460 (2008). 53 u.s. dep’t of health & hum. servs., child.’s bureau, the afcars report 2 (2017). see also u.s. dep’t of health & hum. servs., child.’s bureau, the afcars report (2018). 724 colum. j. race & l. [vol. 11:711 because their parents inflicted serious abuse on their children was simply more powerful than the truth. the second claim that captured the support of federal legislators is that children deserve a “permanent home” even more than they deserve to remain part of their family of origin. the theoretical underpinning of this claim was a highly disputed social science theory advanced by celebrated theorists—joseph goldstein, anna freud, and albert solnit.54 their “psychological parenting” theory posited that children are harmed when the law recognizes more than one parent figure in their lives, except when the parent figures are collaboratively engaged in raising the children. as sarah katz describes it, “[t]he concept is that children form their primary attachment with a ‘psychological parent’—the person that provides day-to-day care for the child, whether or not that person is the biological parent—and their psychological and emotional well-being requires a continuous and positive relationship with that person.”55 the theory was meant to apply to all court cases involving children—both the public child welfare system and the private family law field of divorce, custody, and visitation. in the private realm, it would have meant that when parents separate after jointly raising a child together, the law should assign full parental rights to only one of the parents and comfortably permit the other parent to be removed from the child’s life. unsurprisingly, the private family law professionals categorically rejected the idea and no trace of it remains in that field. as sarah katz explains, “[t]his is because private custody law recognizes not only the value of a legal connection to both parents, but also recognizes that the child’s best interests may justify changes in the custodial relationship at different points in the child’s life.”56 in the divorce and private custody field, 54 joseph goldstein et al., beyond the best interests of the child (1973) (asserting that continuity in children’s relationships with a caregiver is essential to normal psychological development and arguing that children separated from their parents who bond with “psychological parents” will suffer serious emotional harm if returned to their parents). peggy davis brilliantly critiqued their work in an influential article published in 1987. see peggy c. davis, ‘there is a book out . . .’: an analysis of judicial absorption of legislative facts, 100 harv. l. rev. 1539 (1987). 55 sarah katz, the value of permanency: state implementation of legal guardianship under the adoption and safe families act of 1997, 2013 mich. st. l. rev. 1079, 1094 (2013). 56 id. 2021] racial politics of asfa 725 everyone continues to operate on the simple principle that children and their parents deserve to remain in each other’s lives, even when one of the parents does not have physical custody of the child. that field, of course, is the one that more privileged people inhabit. as applied to the families whose children get snapped up by the foster care system, however, very different rules apply. federal law encourages states to permanently sever the legal ties between children and their parents, without regard to the strength of their relationship for no better reason than that the children have been in foster care for fifteen months. everything we know about afsa’s implementation, including the voices of countless children who have been impacted by asfa, is that this law has wreaked havoc on poor communities, resulting in the needless deracination of children from the parents who love them. every year, tens of thousands of loving parents who would never harm their children are deprived of maintaining any kind of relationship. this harsh law would not be tolerated if it were to be applied to privileged communities. the law was enacted even though congress knew that these highly restrictive timelines meant it would be impossible for many parents to retain their parental rights when, for example, the parent was sentenced to a term of imprisonment longer than fifteen months. it also did not matter to congress that it is often impossible to complete a drug rehabilitation program in fifteen months either because of the program’s length or because of the lack of programs. far too many communities lack treatment services capable of helping parents reach a place where they can regain their children’s custody within fifteen months. because federal law does not require that such services exist, it allows local officials to take advantage of their absence. as jerry milner, former associate commissioner at the children’s bureau, and his special assistant, david kelly, explain, some child welfare officials “weaponize our systemic shortcomings and use them against parents.”57 57 jerry milner & david kelly, top federal child welfare officials: family is a compelling reason, imprint (apr. 6, 2020, 9:06 pm), https://imprintnews.org/child-welfare-2/family-is-a-compelling-reason/42119 [https://perma.cc/h78r-xntf]. 726 colum. j. race & l. [vol. 11:711 how could it be that the fields of private and public family law went in such opposite directions?58 dorothy roberts explains it simply enough: this could never have happened without racism.59 this brutal law would not be tolerated if it were to be applied to privileged communities. countries that are not contaminated by the legacy of slavery, in michael katz’s words, are more likely to find “moral outrage at the persistence of hunger, homelessness, inadequate health care, and other forms of deprivation, than exists in the united states.”60 enacting asfa on the heels of welfare reform “corresponded with the growing disparagement of mothers receiving public assistance and welfare reform’s retraction of the federal safety net for poor children. in the public’s mind, these undeserving mothers—just like the unfit mothers in the child welfare system—are black.”61 similar to arguments that suggested that poverty in the black community was in part due to a reliance on welfare, the high number of children in foster care was painted as an inherent failure of family preservation programs, that could only be solved by pushing for quicker adoption of foster children. these were not the only contemporary examples of the federal government rewriting laws with black people as an unmentioned targeted audience. in 1986, congress enacted the anti-drug abuse act of 1986, which punished users of crack 58 see eliza patten, the subordination of subsidized guardianship in child welfare proceedings, 29 n.y.u. rev. l. & soc. change 237, 244–45 (2004) (smartly revealing how goldstein, freud and solnit’s theories were selectively incorporated into the family regulation system in remarkable ways. as she expresses it: “[w]hile the psychologists advocated for an intervention strategy that reserved out-of-home placement for only the most high-risk cases, in practice, poor families are often disrupted without adequate attention to the harms of family separation . . . . only once children have been removed from their natural families have the recommendations of goldstein, freud and solnit been faithfully implemented in the child welfare context.”). 59 roberts, shattered bonds, supra note 1, at 276 (“why would americans prefer a punitive system that needlessly separates thousands of children from their parents and consigns millions more to social exclusion and economic deprivation? racism is at the heart of this tragic choice. only by coming to terms with child welfare’s racial injustice can we turn from the costly path of family destruction.”). robert’s statement echoes isabelle wilkerson’s straightforward explanation: “the factor that stands above all the rest is slavery.” see wilkerson, caste, supra note 41, at 354. 60 katz, 2d ed., supra note 6, at 238–39. 61 id. at 173. 2021] racial politics of asfa 727 cocaine 100 times more harshly than users of powder cocaine. although the bill did not mention race, it was well-known that black people disproportionately used crack and white people disproportionately used powder.62 this was the same decade when mass incarceration legislation also secured bipartisan support, without the need to mention race. john dilulio’s dangerous and false “the coming of the superpredators,”63 published in 1995, dehumanized children of color and contributed to a legacy of mass incarceration.64 it is unsurprising that during a decade when “experts” were telling legislators that black and brown children were too dangerous to be allowed to live freely, legislators would be inclined to regard these children’s parents as inadequate caregivers. the racist stereotypes that fueled other social policies of the 1990s also fueled the idea that the state needed to intervene in black families in order to save their children. the clear message that federal legislators embraced was the understanding that it was better for children who entered the foster care system to be adopted than return to live with their families of origin. professor roberts goes further in shattered bonds, showing how, in the asfa congressional hearings, adoptive families and biological families were pitted against each other, with adoptive families repeatedly portrayed as the safe, stable, and supportive choice for foster children while birth families were virtually always painted in a negative light.65 she tells the 62 anti-drug abuse act of 1986, pub. l. no. 99-570, 100 stat. 3207. 63 john dilulio, the coming of the super-predators, wash. examiner, (nov. 27, 1995), https://www.washingtonexaminer.com/weekly-standard/thecoming-of-the-super-predators [https://perma.cc/9mmx-pl8q]. 64 see david garland, the road to ending mass incarceration goes through the da’s office, am. prospect (apr. 8, 2019), https://prospect.org/ justice/road-ending-mass-incarceration-goes-da-s-office/ [https://perma.cc/ d5r3-x35g] (“mass incarceration came into existence when the nation abandoned the war on poverty and chose to treat social problems and wayward lives as problems for police, prosecutors, and prisons. it is hard to see how it can be ended without a transformation of america’s urban policy, its welfare state, and the political economy that underlies them.”). 65 roberts, shattered bonds, supra note 1, at 114. see also id. at 119 (“yet in supporting the federal adoption law, speaker after speaker referred to adoptive families as real and biological families as false. representative pryce urged her colleagues to support the legislation ‘in the interest of thousands of children who need a true family to love and protect them.’ representative shaw of florida predicted that the law ‘is going to bring about the joy of adoption and 728 colum. j. race & l. [vol. 11:711 story of a spokesperson for the federation of protestant welfare agencies comfortably telling federal legislators that “there is a fundamental problem with the [b]lack family . . . there are many people who believe that to save these children, they have to take them from their families. it is a sense that [b]lack families are already broken, and you’re saving these kids from broken [b]lack families.”66 v. a question remains: what is the most effective argument for dismantling the family regulation system? i began this article by emphasizing the importance of the scholarship of dorothy roberts, peggy cooper davis, and khiara bridges, celebrating them for contributing to our understanding of the ubiquity of race and its influence on all things. white americans can never, i believe, absorb enough of this history or the lessons these scholars, and others, including isabelle wilkerson, continue to teach people of all races. two of the most important books i’ve read in the past several years include isabella wilkerson’s warmth of other suns and caste: the origins of our discontents.67 i believe every american should read these books and that they should be part of a required high school curriculum in every public school in the united states. as a white man who grew up in a largely segregated community in queens, new york, i am ashamed of thoughts and feelings i’ve had in my lifetime and am genuinely grateful to have been made aware of the extent to which i was ignorant of fundamental truths about american history. the bonding of a real family to so many kids.’ senator mike dewine, on the other hand, referred to the homes of abused children as ‘households that look like families but are not.”); id. at 120 (“senator grassley defended the new measure on the grounds that foster and pre-adoptive parents ‘are the ones in the best position to . . . represent the children’s concerns. it is an important change to make as we seek to better represent the children’s best interests.”); id. at 114– 15 (“president george w. bush declared that ‘foster care ought to be a bridge to adoption.’ surrounded by black children in a detroit center, he announced a plan to promote adoptions . . . .”). 66 id. at 61. 67 isabelle wilkerson, the warmth of other suns: the epic story of america’s great migration (2010); wilkerson, caste, supra note 41. 2021] racial politics of asfa 729 poverty, and the maldistribution of wealth in the united states, are not random features of american life; nor are the politics of poverty an accident. they are inextricably bound up with race and racial politics. poverty is what the family regulation system is really all about. poverty and race, and family regulation and race, are intertwined at every level. this is true even when the family regulation laws enacted by congress are applied in states with very tiny populations of african americans. the racial politics of the united states harms all americans, including white americans. that said, i end this article raising what, for me, is an important question concerning advocacy going forward: how can we use this racial history to overcome injustice and eliminate it from our midst? on one hand, professor roberts has provided us with definitive proof that our family regulation system would not resemble its current version were the united states not impaired by the legacy of slavery. at the same time, there is virtually no institution in the country about which the same thing cannot be said. as wilkerson clarifies, it’s not just the family regulation system that is pervaded by racism, quite the opposite. family regulation is simply yet another instantiation of the problem. wilkerson lists mass shootings; gun ownership; our incarceration rate; our maternal mortality rate, which is nearly three times higher than sweden; our life expectancy rate, which is lowest among the eleven highest income countries; our infant mortality rate, which is highest among the richest nations; and our anemic student score rate in math and reading as some examples among many that are directly traceable to slavery and its legacy.68 it is impossible to isolate american choices about how to finance public education, tax wage earners, or a myriad of other things our laws and practices allow, from our history of racism. we are infused with that history. it infects us all. to that extent, professor roberts’s great work is less a revelation of something unique about the family regulation field than a brilliant exposé of its application to yet another institution that has been gravely damaged by our racist past and present. my efforts as a critic of the family regulation system are to radically alter it. a question, at least for me, is whether that 68 wilkerson, caste, supra note 41, at 355. 730 colum. j. race & l. [vol. 11:711 goal is more easily reached by clarifying the extent to which our world-outlying practices are the consequence of america’s racist present and history. i am unsure what the answer to that question is. in my long career, i have given many speeches highly critical of child welfare practices. my emphasis has always been on revealing how destructive our system is; how harmful it is to children and families; how unnecessary it is to be this way; how different we are from the rest of the world; and how un-child friendly it actually is. i emphasize how few of the children seized from their families have ever been abused; how easy our laws make it to forbid those children from ever living with their families again; how out of step we are from the rest of the world; and, most importantly, how it doesn’t have to be this way. i have given this speech in maine, idaho, montana, utah and west virginia, to name some recent examples. very few people in the room when i’ve given those speeches were black. in percentage terms, very few of the families impacted by the child welfare systems in those states are black. the families destroyed in those states are overwhelmingly white and native american. there is no question that those states’ laws and practices are shaped by the racism revealed by dorothy roberts. their laws and practices are just as harsh and constitute just as much a violation of fundamental human rights as the laws and practices in chicago, detroit, new york, and philadelphia. but were i to tell west virginians or people living in idaho that their child welfare system is the product of america’s racism, not only would the message be difficult for that audience to hear—it would be rejected. let me be clear: the message is spot on. there is, as i say, no public aspect of american life that is not deeply infected by racism. thus, as applied to child welfare the message is not unique; more importantly, it would not rouse the inhabitants of those states. moreover, the families harmed by those systems in those states would be equally unimpressed to learn they are being so poorly treated because of our racist sins, both past and present. so, for me at least, dorothy roberts’s brilliant work is important for many to know and absorb. but i am unsure whether it is a platform upon which to build the abolition movement. that movement, instead, could be built on a thick description of what we are currently doing wrong and what we could do to right it. there are countless things to talk about when 2021] racial politics of asfa 731 that becomes our focus. i have some concern that some recently awakened progressive advocates committed to radical reform will fail in their efforts to achieve a radical overhaul of the family regulation system by having to carry the extra weight of persuading white people whose own system of child welfare impacts almost no black americans that it is a racist system that must be abolished. the argument is almost correct. but to the degree it is imperfectly right, i question whether it is wise to employ it. a good deal of what makes this question so challenging for me to resolve is my awareness that avoiding any discussion of race finds company with far too many claims made elsewhere that race-based problems can be solved with race-neutral means, whether the subject is affirmative action or many other fields. i am unsure whether a special case can be made for the family regulation field that would allow me to ignore its racist connections when advocating for, say, afsa’s repeal. one thing is undeniable: tens of thousands of white families have been destroyed by asfa and an even greater number of white families have had their lives gravely harmed by the family regulation system that would not exist without our legacy of racism in this country. am i permitted to ignore why we have this system when striving to get rid of it when i conclude that the audience would be less receptive to a conversation about race? or must i make clear to everyone just how deeply rooted racism is in the family regulation system employed in the united states? whatever the answer, we should appreciate that roberts has so successfully and powerfully demonstrated how racism affects family regulation law and policy. as she asks in shattered bonds: can anyone honestly doubt that the modern acceptance of child removal as the system’s chief function depends on the disproportionate demolition of black families? if the rate of white children entering the foster care system began to approach the present rate of blacks, we would certainly see more moral outrage over the level of state interference in families.69 69 roberts, shattered bonds, supra note 1, at 92. 732 colum. j. race & l. [vol. 11:711 vi. conclusion whatever proves to be the most effective message to achieve radical change in america’s family regulation system, there’s nothing more important than that we succeed in dismantling it. the day cannot come too soon when we repeal afsa and end this system which needlessly separates children from their families. we must recognize that people living in poverty who become parents have the fundamental human right to raise their children and that their children have the reciprocal right to be raised by their families. columbia journal of race and law vol. 12 july 2022 no. 1 different year, different jurisdiction, but the same findings: reforming isn’t enough kristin weber & bill bettencourt for the last fifteen years, the center for the study of social policy (“cssp”) partnered with local agencies to use an institutional analysis (“ia”), a method that identifies how local child welfare institutions are not working for families. we have particularly focused on the experiences of black families. through a comprehensive and varied qualitative data analyses, each ia strives to make the invisible and detrimental workings of systems more visible, that is, each ia reveals specific institutional features that contribute to poor outcomes for black families. findings from ias have identified problematic policies, practices, protocols, resource distribution, and other features at the local, regional, state, and federal levels. from the twenty ias conducted to date, we have substantial evidence of the insidious, pervasive, and mutating structural and institutional racism ingrained in child welfare systems. while the ias have unique findings in each jurisdiction, there are also common findings, including: lack of meaningful and reasonable efforts to keep families together; policies that undermine existing networks of black families; lack of due process and poor advocacy for black families; inaccessible, inappropriate, and ineffective resources offered to families; coercive and punitive interventions; hyper surveillance of black families; workforce fear of black families, particularly black fathers; and ineffective mechanisms of accountability that result in blaming families for the failures of workers, providers, and larger societal ills (lack of housing, lack of livable wages, etc.). this piece presents evidence compiled over the years which leads us to conclude that reforms within the current system will only go so far and that radical investment in community supports and anti-poverty efforts are necessary.  kristen weber wrote this piece while a senior fellow at the center for the study of social policy; she is now a senior director of child welfare at the national center for youth law. bill bettencourt is a senior advisor to the upend movement housed at the university of houston graduate college of social work. we thank dr. ellen pence with whom we adapted the ia to examine the child welfare system and conducted many ias. although she died in 2012, her work and thinking continues to influence us. we also thank sarah morrison, a close colleague and thought partner on the ia and the use of more equitable research methodologies. sarah provided a thorough review and insightful comments on this piece. this piece represents the viewpoint of the authors and does not reflect the view point of any institutional entity. 2022] reforming isn’t enough 689 i. introduction ......................................................................................690 ii. finding, adapting, and using the ia ...............................................692 a. searching for the right methodology. .......................................692 b. the methodology ........................................................................693 c. using the ia in different jurisdictions .....................................694 iii. common themes across different jurisdictions from 2005–2020 .........................................................................................695 a. racism exists and shapes the child welfare system. .............695 b. fundamentally, families are not getting the support they need from the child welfare system. .............................698 1. communities act on an assumption that child welfare agencies can get families help. ...........................................699 2. family relationships are undermined rather than supported. ...........................................................................700 3. “reasonable efforts” to keep families together/quickly reunify families is a legal construct that is not consistently used or meaningfully defined. ........................701 4. consistent, quality legal representation is not available to parents. ...........................................................702 5. parents experience interventions as coercive and feel a lack of clarity about when their case will be closed.........703 c. the child welfare system is designed in ways that cannot adequately and consistently help families, particularly black families. ......................................................704 1. child welfare caseloads are persistently much higher than experts in the field recommend. .................................704 2. child welfare is a compliance-based system. .....................704 3. the child welfare system has inadequate mechanisms of accountability to families and communities. ..................705 4. broader laws and policies do not facilitate workers in engaging families for extended periods of time and in supportive ways. .................................................................705 iv. reform is not enough ......................................................................706 v. conclusion .........................................................................................710 appendix: institutional analyses referenced .........................................711 690 colum. j. race & l. [vol. 12:688 i. introduction black parents described a fragmented and unsupportive child welfare system response. they described a response that didn’t recognize their bonds to their children nor attend to their trauma, grief, and loss of being separated from their children. parents missed major milestones in their children’s lives as they described missing their child’s first solid feeding, first christmas, first time their child crawled, first day of school, and first tooth being lost. black parents described frustrations with minimal visits with their children and that their very young children did not recognize them or feel comfortable with them at visits or after reunification. parents described a lack of meaningful resources like childcare and housing and demands that were onerous such as prolonged drug testing or finding a job with a livable wage and “appropriate” working hours. further, many of the supports available to parents when they have their child with them are lost when children enter placement, such as medicaid, housing, and childcare. finally, there are different concepts of what is a service and what is a helpful service. for example, child welfare workers and court personnel described urine analyses (uas) as a “service” or “treatment,” but it is neither.1 child welfare leaders, foundations, advocates and others have frequently asked us to examine different child welfare systems for problematic policies and practices. 2 this type of request assumes that if those two features are corrected and the child welfare workforce retrained, racial inequities can be eliminated. we are also frequently asked for “best” or “promising” or “evidence-based” practices that will eliminate racial disparities. the underlying and unstated assumption in this type of request is that it is possible to correct for racial disparities if only these public systems had the correct tools or policies or trainings. that is, the assumption is the child welfare system can be reformed within their current structures without the big shifts required to remedy the underlying 1 institutional analysis report, 2020. this institutional analysis was conducted in a county in a midwest state and examined low and slow reunification rates for black families. the analysis has yet to be publicly released as workgroups are using findings to develop new interventions and determine how to report all efforts publicly. throughout this piece, we identify the region or state of each jurisdiction and the year of the institutional analysis, but not all have been published. the full list of reports is listed in the attached appendix. throughout this piece we work to keep the anonymity of the specific county, while relaying the diversity of places at the end; see app. at a; see also institutional analysis: unearthing institutional racism and other biases, ctr. for the study of soc. pol’y, https://cssp.org/ our-work/project/institutional-analysis/#featured-resources [perma.cc/m5k2-ygt4] (last visited feb. 3, 2022) [hereinafter ia: unearthing institutional racism], for the ia reports that are publicly available. 2 for the purposes of this piece, we use the term “child welfare system,” as that was the term used in the course of the institutional analyses we conducted. this term includes the child protection agency, courts, and community providers. however, the term “child welfare system” is deeply problematic in that it misrepresents the actual experience of children and families involved in these systems. because of the experiences of surveillance, monitoring, punishment, and removal, we assert a more accurate term is the family policing system. 2022] reforming isn’t enough 691 impact of systemic racism on these institutions and families themselves. ultimately, from our many years of examining different child welfare systems, we conclude that reforming is not enough. despite earnest efforts, we observe modest improvements at best, and fleeting reforms, or retrenchment at worst. at the center for the study of social policy (“cssp”), we use an institutional analysis (“ia”) to understand the everyday experiences of a group of people and how the child welfare system is designed (or not designed) to meet their needs and support them in healing and thriving. findings from ias have been used to spur communities and child welfare leaders to corrective actions for stronger policies and practices. this methodology helps jurisdictions gain an in-depth knowledge of systemic causes of inequities and identifies improvements. the ia review team collaborates with older youth, parents and caregivers, and community members to advise the process and interpret findings. we primarily have used ias to understand the experiences of black children, youth, and families and more recently latinx youth and youth who identify as lgbtq+. findings from past ias have documented policies, practices, and other ways in which the child welfare system undermined healing and sustaining connections to family for children and youth; created incredible hurdles to learning and building social connections to peers and caring adults; infantilized youth in some circumstances and placed incredible adult responsibilities on youth in others; and harshly punished youth when they make mistakes typical of their age (e.g., broken curfew, experimentation with drugs or alcohol, physical altercations with other youth). other findings point to larger community inequities—such as unsafe housing options; inadequate transportation infrastructure; intense levels of surveillance of black and latinx youth and treating them prematurely as adults; lack of coordination among or complete absence of accessible services and supports focused on youth, particularly black and latinx youth and lgbtq+ youth. 3 this piece describes our common findings to date, with a specific focus on experiences of black families. years of qualitative research show that family experiences have not changed substantially despite efforts at innovation. we continue to see the same media reporting of extreme instances of neglect, abuse, and child deaths both in cases known and unknown to the state. we have yet to find a jurisdiction that has been able to sustain meaningful improvements in quality of life and outcomes for children, youth, and families. we have reached the conclusion from these findings that reform efforts do not address the core reasons for inequities and perpetuates a system that is harming black children and youth, families, and communities. we must embrace a vision of abolition where we imagine new and meaningful ways of support for children and families, so that children are safer, and families receive support and healing. 3 the ia is conducted at the invitation of or with the consent of a jurisdiction. to date, we have not conducted the ia in indian country nor with an explicit focus on native youth. however, we know that native youth experience the highest rates of disproportionality in the child welfare system and experience disparate, if not worse, outcomes in permanency and well-being. 692 colum. j. race & l. [vol. 12:688 ii. finding, adapting, and using the ia a. searching for the right methodology. in the early 2000s, child welfare systems did not regularly or methodically collect data by race and ethnicity (with many jurisdictions even to this day unable to report accurately the race and ethnicity of a child).4 in response to the growing anecdotal awareness of the disproportionate numbers of black children and families impacted by child welfare intervention and inequities in their experiences and outcomes, cssp sought ways to make a difference. as part of the alliance for racial equity in child welfare, cssp provided technical assistance to child welfare systems across the country and worked with many jurisdictions to collect quantitative data—to get a baseline count of black children and families impacted by child welfare involvement and determine rates of disproportionality.5 cssp also wanted to understand qualitative data—to understand how black children, youth, and families experienced the placements and services of the child welfare system and what might be the causes of the inequities they experienced. in looking for a suitable qualitative methodology, cssp staff encountered dr. ellen pence of praxis international, inc. dr. pence studied institutional ethnography under dr. dorothy smith of the university of toronto and applied dr. smith’s theoretical work in the field of domestic violence producing what dr. pence called the safety and accountability audit, a tool that documented the experiences of survivors of domestic violence and analyzed how institutions directed workers to support survivors and hold those using violence accountable.6 under dr. pence, cssp staff learned the audit’s methodology, and later worked with dr. pence to adapt the safety and accountability audit to examine and document the experiences of black families involved with the child welfare system and how the child welfare system directed workers to intervene and support black families. child welfare system leaders and partners balked at the use of the term “audit” and, with cssp and dr. pence, identified a more palatable and banal descriptor, the institutional analysis. now, some fifteen years later, cssp has conducted twenty institutional analyses of both child welfare and juvenile justice systems across the united states and produced both public and client-only reports.7 4 see ali jawetz et al., our identities, ourselves: an anti-racist review on collecting accurate data on race and ethnicity 10-11 (2021) (calling for child protection systems to prioritize self-identification and self-reporting). 5 see dennette derezotes et al., evaluating multisystemic efforts to impact disproportionality through key decision points, 87 child welfare 241, 248–53 (2008) (working in four communities, cssp developed a racial equity scorecard for measuring disproportionality at key decision points in the child welfare system). 6 see ellen pence & martha mcmahon, working from inside and outside institutions: how safety audits can help courts’ decision making around domestic violence and child maltreatment, 54 juv. & fam. ct. j. 133 (2003) (provides a detailed overview of the safety and accountability audit, describes how it has been used in the field, and discusses how the courts can incorporate safety audit findings into decision-making around domestic violence and child maltreatment) 7 see ia: unearthing institutional racism, supra note 1. because much of the data we rely on is based on client-specific reports, we do not specify the name and county of the report but rather list all studies relied on in the appendix. 2022] reforming isn’t enough 693 b. the methodology the ia is designed to understand how features of institutions shape the help that families receive from workers and organizations. this methodology makes the invisible ways that systems operate visible and identifies practical strategies that can be employed to improve how systems function to help families. the methodology moves beyond a focus on individual staff performance and rejects the notion that solutions lie solely on improved policies or training to improve practice. rather, the ia identifies systemic changes—big and small—that the child welfare system and its partners can make. the ia examines specific organizational features such as mission statements; job descriptions; mechanisms of accountability; hiring and promotion practices; ways that information is gathered about people and how that information is used and shared among system actors; concepts and theories that underlie policies and practices; forms and tools used; resources and supports for workers; and professional development opportunities for the workforce.8 we ground the ia in the viewpoint of family members—children, parents, and other primary caregivers. the data collection and analysis used in the ia reveals the experience of individuals as they encounter institutions and provides an understanding of how the institutions are currently organizing the workforce to act in certain ways. the ia identifies how the child welfare system contributes to or exacerbates positive or negative outcomes for family members. the focus of the ia is on the policies and practices implemented by institutions and the consequences for families, not on the behaviors of individuals such as judges, police, or social workers. with this focus, the ia process can also reveal how efforts at reform impact experiences of children, youth, and families and identify reasons why well-meaning changes result in little, if any, positive change in the actual experiences of families. the ia identifies the organizational and systemic challenges impacting this lack of change and produces recommendations for improvement. the ia is not about confirming preexisting theories but relies on ethnographic methods to understand how the child welfare system functions and shapes the thinking and actions of frontline workers. reviewers interview key child welfare leaders and community partners early in an ia to describe the larger context in which the child welfare system functions. ia reviewers map the decision points in a case and the policies and practices that govern each decision point. this map helps determine whom to interview, what processes to observe, what case files to review, and what forms to analyze. the ia reviewers interview frontline workers and other informants and assume a learning role, asking structured, open-ended questions that inform the reviewer as if they would have to do their job tomorrow. reviewers with no child welfare knowledge are highly valued in this type of data collection as they frequently are 8 see generally kristen weber & sarah morrison, the institutional analysis: a tool for diagnosing structural contributors to racial disproportionality and disparity in child welfare, 11 child maltreatment: contemp. issues in rsch. & pol’y 375 (2021) (provides an overview and an in-depth description of the ia framework, methodology, general findings and application). 694 colum. j. race & l. [vol. 12:688 better at asking for clarifications and do not make assumptions about case processes. review teams collectively debrief emerging themes from the variety of data collected, code data, verify information with child welfare leadership and community members, and rely on multiple data sources to determine a finding.9 the ia ultimately provides insight and findings based on the combination of interviews, focus groups, observations, policy and protocol reviews, and case record reviews. like other qualitative methodologies, the ia has limitations. for instance, the ia does not examine the entire operations of the child welfare system, focuses a select number of cases and families, and may not have the opportunity to observe more recent reform efforts that have not had time to take hold in a child welfare system. c. using the ia in different jurisdictions we have led ias that examine various aspects of child welfare practice. we have looked at both state and county administered child welfare systems. we have examined large counties, like los angeles, and smaller counties, like cedar rapids, iowa. we have looked at systems that have significant funding support, such as santa clara county, california and others that receive the minimal county dollars required as a match for federal funds, such as fresno county, california. we have also examined jurisdictions identified as “model” child welfare systems, such as allegheny county, pennsylvania. in some jurisdictions, cssp and trained partners conducted the data collection, analysis, and reporting. in other jurisdictions, we trained local community and child welfare stakeholder teams on the ia methodology, and they assisted with data collection. all the systems in which we have worked were grappling with varying rates of racial and ethnic disproportionality and disparities, regardless if that was the focus of inquiry. we frame our focus of inquiry by asking how something comes about to better focus on systemic explanations. we work with community members, as well as system leaders, to determine the focus of inquiry with questions that are meaningful and accessible to communities. examples of past inquires include:10 • how does it come about that, after substantiation of child neglect, black children are more likely to be removed from their homes? • how does it come about that black families experience slow and low reunification rates? (the most frequent ia inquiry) • how are black children who are separated from their families supported in their need for stability and nurturance? • in cases of domestic violence, how is the (survivor) parent and child bond supported by intervening systems? how is the person using violence held accountable and the survivors helped to be safer? 9 id. at 387–388. 10 see ia: unearthing institutional racism, supra note 1. 2022] reforming isn’t enough 695 • how does it come about that black youth spend longer periods of time in out-of-home care than their white peers? how is their wellbeing supported while in care? • how are lgbtq+ and gender expansive youth supported and affirmed by child welfare interventions? • how are undocumented latinx families supported by child welfare interventions? despite the variety of questions examined, the different child welfare jurisdictions from which data were collected, and the different configurations of the ia review teams, we documented overwhelmingly consistent experiences of families involved with child welfare systems and consistent challenges in the system’s response to families. while there are indeed examples of children, youth, and families who do describe getting help, on a systemic level, we overwhelmingly documented families reporting stressful and defeating experiences shaped by oppression, coercion, lack of meaningful help, lack of empathy, and lack of support for trauma and healing. iii. the common themes across different jurisdictions from 2005–2020 ias identify unique findings in each jurisdiction. these unique findings usually are about the array of contracted services available and accessible for a community; the role and functionality of private agencies; state or local interpretations of policy; the presence and priority of local initiatives; local practices around removals (using the police or not); and local language used to talk about children, youth, and families. while we have noted some local variation, we find consistency in family experiences and in system capacity across jurisdictions and across time. these findings point to the larger structural flaws of how the child welfare systems have evolved over time with a variety of legislative efforts, mandates, and funding changes. these change efforts and modifications are building on a system rooted in our problematic racist history and so our public systems’ limitations continue today. we discuss these unwavering findings below. a. racism exists and shapes the child welfare system. it is well documented that racial disproportionality and racial disparities exist in child welfare systems across the country. nationally, black, and native children are overrepresented in the child welfare system. most recent federal data show that of the 423,997 in foster care in 2019, 2% of these children and youth were american indian/alaska native and 23% were black as compared to one percent and 14%, respectively, of the general population.11 in addition, there are racial disparities in experiences and outcomes.12 we work with child welfare leaders and communities to 11 child. bureau, u.s. dep’t of health & hum. servs., afcars report 1 (2020), https://www.acf.hhs.gov/sites/default/files/documents/cb/afcarsreport27.pdf [perma.cc/43pl-ztvf]. 12 see alan j. dettlaff & reiko boyd, racial disproportionality and disparities in the child welfare system: why do they exist and what can be done to address them?, 696 colum. j. race & l. [vol. 12:688 understand the problematic history of child welfare intervention and the societal contributors to these data.13 the majority of ias we led focused on black families, but even in the ias that have not exclusively focused on black families, we consistently documented implicit and explicit bias, discrimination, and the detrimental impact of “race-neutral” policies and practices on black families. we consistently found that pervasive and troubling concepts of black families existed among the child welfare workforce and other service providers and that these concepts shaped interactions with families, placement decisions, and case plans. we documented examples of how unchecked, negative stereotypes of black families impacted policy and practices. for example, multiple ias found through case files reviews and interviews that workers described black fathers as uninterested in their children, not to be trusted, angry, and unable to parent—or black fathers were completely invisible to workers and in their documentation. yet evidence in case records reviews and interviews with black fathers revealed their efforts to locate their children, to adapt their voices and physical presence to appear nonthreatening to case workers, and to participate in case plans even though the services offered were not helpful. below are examples of what we repeatedly found and while, in many cases, they are from an individual worker, they ultimately indict the system as a whole. specifically, the lack of meaningful and robust accountability mechanisms allows for workers to act in idiosyncratic ways that harm black families. ● in two different ias, black fathers were told the only way they could prove they were earnestly interested in reunification, and not seeking reunification to benefit financially from their child’s public assistance, was by using their own money to purchase a car seat for their children.14 in one of these cases, the foster parent was instructed not to provide the father with her extra car seat.15 ● a probation officer did not work to connect black fathers to parenting classes because he felt they are not interested in raising their kids—“it’s cultural.”16 a caseworker, whose job was to support reunification with the whole family, expressed hesitation in engaging fathers stating “[the] number one thing about african american fathers—fathers are not around.”17 ● case files lack details about black fathers. the contact information and names are consistently not listed on facesheets [facesheets in this jurisdiction listed all relevant parties to the child welfare case annals american acad. of pol. and soc. sci. 253, 254 (2021), for a summary of research on racial disproportionality and disparities in the child welfare system. 13 the current child welfare system is built on a long history of separating children from their parents, with deep roots in anti-blackness, anti-indigeneity, and forced assimilation. the forced separation of children from parents has roots in slavery, indian boarding schools, and orphan trains and that ideology of separation as an acceptable form of intervention continues today in the design of child welfare systems. 14 see app. at b; app. at c. 15 see app. at b; app. at c. 16 see app. at d. 17 see app. at a. 2022] reforming isn’t enough 697 including mother, father, relatives, attorneys, caseworkers, judges]. a father interviewed states “you guys did not come looking for me.”18 ● extra bailiffs were routinely called into court hearings when black fathers were present.19 ● one administrator noted that “dads who are black and coming out of prison, my workers weren’t sure about visiting them. i am not sure what the reluctance is about, maybe not having knowledge or experience to work with dads, or their own bias.”20 the ias also found other dangerous and pervasive concepts of black families included viewing mothers as pathological and black children and youth as not attached to their parents or siblings, as “psychotic,” and in need of better opportunities away from their families and communities. labels of “hostile,” “aggressive,” and “noncompliant” were attached to black parents with insufficient or no evidence. moreover, as one ia found, “the system’s policies and practices do not direct workers to contextualize parental behavior, specifically their expressions of anger at the removal of their children.”21 we also found in each jurisdiction, a number of frontline workers, child welfare administrators, and community providers act on an unchecked belief that black families and communities were not capable of caring for their children. while these concepts and beliefs are troubling, they could be minimized with stronger mechanisms of accountability to families and communities, yet we found minimal to no existence of such mechanisms. in nearly all jurisdictions we examined, workers received training related to cultural bias and/or cultural humility. we found that training alone is not enough as some workers still lacked awareness of racial inequities in their institutions or did not view racial inequities as problematic. some workers proudly proclaimed, “i don’t see race” or “i am color blind.” implications of this colorblindness meant that workers could not appreciate the strengths of black families, understand family connections, and how black families care for one another. this colorblindness also pushed workers to value foster parents with resources over black families of origin with limited or no resources: child welfare workers and legal professionals expressed that the removal of african american children from their families and their placement with white and more affluent suburban families was “an understandable bias” because of the increased opportunities provided for arts, sports, and access to higher quality educational experiences. this colorblindness resulted in workers negatively interpreting the interaction of black parents spending time during supervised visits doing their children’s hair, rather than 18 id. 19 see app. at d. 20 see app. at e. 21 see app. at c. 698 colum. j. race & l. [vol. 12:688 viewing this as a time of bonding and also efforts of a parent to keep their child safe and accepted at school.22 while workers recognized the hardships of poverty on families, most workers could not talk about the intersection of poverty and systemic racism that impacted families’ ability to have jobs, affordable and healthy housing, and quality schools. yet in nearly every jurisdiction, black families or the communities where they live have code names like “the west side”, “the crescent”, or “urban immigrants” to name a few.23 and in some instances, families from these communities “are assumed to all experience problems associated with poverty and drug addiction”.24 this phenomenon was observed in a california ia: many families living in [california neighborhood] face significant challenges as a result of larger disinvestment in their community—many struggle to find adequate housing and jobs, healthy and affordable food, safe and academically challenging schools, and clean, secure parks and neighborhoods. in addition to the larger infrastructure issues faced by many in [the neighborhood], interviewees reported that [this neighborhood] has poor services, particularly prevention services. the overwhelming needs in [this neighborhood] and, in particular the community served by the [local] office, leaves advocates to regularly ask, “[w]hy wouldn’t you want to put [the] best services and highest level of resources in the poorest community?”25 although we saw a range of efforts at training with the purpose of remedying these different forms of racism, no system was in place to assess if the training resulted in improved skill, and the minimal follow up coaching to apply what was taught was insufficient. in addition, we observed weak systems of accountability, resistance among the workforce, and resistance among national researchers and practitioners. weak accountability and limited work with communities to understand both the history of race and racism and how communities function allows racism to bleed throughout the system, impacting all other identities of children and parents who are stigmatized and marginalized by policies, practices, and those in power. the result is that many black families fear the child welfare system because the system is known for “white people taking black children.”26 b. fundamentally, families are not getting the support they need from the child welfare system. families who come to the attention of the child welfare system largely receive similar case plans with mandated timelines to meet requirements. when children are removed from their families, these plans 22 see app. at b. 23 see app. at f; app. at b; app. at c. 24 see app. at b. 25 ctr. for the study of soc. pol’y, child welfare practice: creating a successful climate for change 7 (2012), https://cssp.org/wp-content/uploads/2021/02/child-welfarepractice_creating-a-successful-climate-for-change.pdf [perma.cc/n9rs-bvcz]. 26 see app. at e. 2022] reforming isn’t enough 699 are legally required. jurisdictions create plans in several different ways, sometimes involving family members through a family group conferencing model and sometimes through an individual discussion with a worker. case plans largely result in the same sets of “services”: supervised visitation, drug testing and treatment, individual therapy for parents and children, family therapy with older children, anger management, and parenting classes. parents are also usually required to obtain on their own a legal job, safe and appropriate housing, and childcare. yet, affordable, healthy housing options and affordable, high-quality childcare are difficult to find. many parents also struggle to obtain legal work that pays a livable wage. parents who are employed struggle to keep their jobs because of the “services” that they are required to complete conflict with work hours. as one father noted: “they [child welfare system] don’t care about if you have a job.”27 in the ias, we documented parents asking for concrete help— money, housing, food. parents also talked about needing help, not necessarily from the child welfare system, but from more informal support sources, like church connections, new/different friends, or by making amends to their extended family. unfortunately, the help they are asking for is not what child welfare system is set up to deliver. the child welfare system fundamentally is not designed by policy and practice to ensure families have what they need to survive and heal. accountability for how the child welfare system functions and the outcomes it produces focus on ensuring timelines are met, case plans are made, and other more processbased requirements, not on guaranteeing families quickly have stable, healthy, and safe housing, access to quality childcare, or receive meaningful, affordable, and culturally appropriate support. 1. communities act on an assumption that child welfare agencies can get families help. for example, in multiple jurisdictions, parents needed help managing their child’s mental health and aggressive and dangerous behaviors. in many instances, black parents were not aware of, nor connected to, prevention or early intervention services. black parents felt their best option was to call the police for help in managing their child. the police in turn either removed the child themselves or called the child protection agency to remove and place the child. unfortunately, rather than be helpful, we found that such removals compounded issues, making the road to reunification much more complicated. in some cases, children and youth with complex mental or behavioral health needs spent long periods of time in highly specialized and expensive congregate care settings. these settings were far away from family and visits with family were predicated on the “good” behavior of the youth. in other cases reviewed, there was evidence that the parents and youth were connected and cared for one another but needed support to stay together and work through issues related to sexual orientation or gender identity and expression.28 however, these families did not receive adequate support, and most did not stay intact. 27 id. 28 see app. at g. 700 colum. j. race & l. [vol. 12:688 hospital and school social workers, who are mandated reporters but also trained to provide support to families, state that they make reports to the child welfare system to “just check on children” or because they believe the child welfare system has the services and support that families need, like help with buying a bed or a washing machine.29 yet case record reviews and interviews with parents show that while some families do get this concrete help, others do not. the consequence is that “help” comes with fear of children being removed, and excessive case plan requirements add a burden that negatively impacts parents’ ability to function day to day. 2. family relationships are undermined rather than supported. when child welfare investigators determine a child must be removed from their home, they replace one or two parents for another one or two caregivers. this way of viewing families undermines any communal support that many black families rely upon. for example, in a 2010 california county ia, a black mother with significant mental health challenges lived near multiple family members. these family members had a system of intervening and helping the mother get mental health support, like ensuring she worked with providers to adjust her medication when needed. different relatives provided different forms of support including helping the children get to various activities, providing after school childcare, and providing extended respite when the mother needed it. this was their practice for many years. however, in one incident where the mother’s mental health caused her behaviors to become erratic, the police intervened before the family could. the police contacted child welfare and the responding caseworker removed the children. the child protection system dictated to the worker through policies and protocols to place the children with one of the relatives and required background checks and permission for overnights at all other relatives’ homes. this unduly burdened the relative caregiver and undermined a working family system as not all relatives could pass the criminal background check.30 many youths are a part of extended families where members have criminal histories. these convictions can range from misdemeanor property crimes to violent offenses and may be recent or from the distant past. the review found little guidance to workers on how to assess these histories in the context of a child’s need for safety and relationship. most youth were interested in having relationships with these family members, but these policies act to control contact rather than assist in developing safe, caring relationships. the ias found that requiring criminal background checks and clearing family members were blanket requirements, with no nuance to assess for the age of the child, the bond of their relationship with the relative, or circumstances such as being able to attend family gatherings, funerals, or graduations. the ias documented many examples of youth leaving their foster home placements without permission to visit their family members. finally, parent-child visits do not happen frequently enough. when a child is removed, the default position is to have supervised visitation. in 29 see app. at a. 30 see app. at f. 2022] reforming isn’t enough 701 many jurisdictions, visitation happens in a center office of the department during business hours, impacting work and school schedules. visits are time-limited, slots are hard to secure, and visits are canceled if a parent is late. in one jurisdiction, parents had to enter and exit the visitation center through designated door at the back of the building.31 guidance from different national experts pushes for frequent, extended, homelike visits, especially for parents with young children. yet we saw infrequent examples of following that guidance. parents expressed grief at missing milestones in their children’s lives, including a child’s first tooth, first step, first day of school, christmas holidays, and family reunions. further, for youth that were able to be placed with kin, the system impacted family relationships by placing relative caregivers in a surveillance role and directing them to limit and monitor visits, and report back on how the children interact with parents and fare during and after visits. progressing from supervised to unsupervised visits largely depends on the individual worker assessment of how the parent is doing in meeting their case plan goals and the court’s approval but appears inconsistent across the system. for example, in one case a mother was still under a supervised visit order, receiving two one-hour supervised visits per week, but plans were in place to return her child home imminently.32 by comparison, another mother whose infant suffered life threatening abuse was allowed to see her infant daily with oversight provided by a relative. in this case, there were no plans to return the infant home in the near future.33 3. “reasonable efforts” to keep families together/quickly reunify families is a legal construct that is not consistently used or meaningfully defined. in accordance with federal law, child welfare agencies are required to make “reasonable efforts” to prevent the removal of children from their home and if they are removed, to provide services to reunify them with their families. ias found the “reasonable efforts” standard to be questionably implemented, with black families frequently left to fend for themselves to get their children back. parents described receiving a resource packet of approved services but then struggling to access and pay for these services.34 as one social worker described, “it is a waiting game for parents”—as the affordable 31 see app. at b (“in the new visitation center, the entrance for the custodial family (foster parents and/or residential agency staff) and children has a comfortable waiting room with artwork, books, toys, a computer terminal and a fireplace, while the birth parents are asked to enter through an unwelcoming and sterile entrance on the opposite side of the building. the waiting room for the birth parents has a tv monitor hanging from the ceiling and rows of chairs for waiting. parents are escorted upstairs by a visitation center staff member, where they prepare for their supervised visit with their children. this reportedly occurs because of the location of a pediatric clinic in the same building, and concerns about having all of the various parents and caregivers entering through the same space. the rationale for this policy and practice, however, is not fully understood, and appears to have a negative impact on the experiences of birth parents involved with the department, as well as professionals familiar with the practice”). 32 id. 33 id. 34 ctr. for the study of soc. pol’y, supra note 25, at 6. 702 colum. j. race & l. [vol. 12:688 services often have a waitlist.35 the role of [the social worker] in helping families connect to services and follow up with services is unclear. in some instances, [social workers] advocated for parents to access particular substance abuse or housing programs. in other instances, no one supported the parent in finding accessible and appropriate services. a court officer expressed that “[m]any social workers think their responsibility is just to give the referrals to the family, that this is a reasonable effort. social workers are responsible for the follow-up too. a lot of social workers don’t think this is part of their job”.36 the failure of a parent to access services is viewed as the parent’s individual failure rather than a larger failure of the child welfare system and its partners to ensure that services are available, accessible, and affordable. in a great lakes ia from 2009, a similar phenomenon was observed: some judicial officers assume that holding the tdm [team decision making] meeting is evidence that reasonable efforts were made to prevent the removal of children. judicial officers described reading the tdm meeting reports to ensure that efforts were made. however, tdm meetings in and of themselves do not necessarily constitute reasonable efforts. this is a misinterpretation of policy and practice. in fact, many parents chose not to attend tdm meetings because they were uncertain of the purpose of the meeting and intentions of the cps workers . . . .37 while many courts used checklists to determine whether reasonable efforts were made, judicial officers frequently reported that they worried the child welfare system could be financially penalized by the federal government if they made a finding of no reasonable efforts.38 4. consistent, quality legal representation is not available to parents. each ia found that attorneys who represent parents or children have very high caseloads, and in some jurisdictions, as high as 300 cases per attorney. parents and youth consistently reported quick interactions with their attorneys, and many reported not knowing the name of their attorneys. ● parents are routinely told to plead and accept case plans as the quickest way to get children back home and end system involvement. “lawyers who represent children have extraordinarily high caseloads and frankly admit that they must triage cases. cases where youth had behavioral problems and were not faring well in school got more attention than youth who seemed to be doing well in their current living situation.”39 35 see app. at h. 36 id. 37 see app. at i. 38 see app. at e; app. at i. 39 see app. at f. 2022] reforming isn’t enough 703 ● families and children are represented in family court by organizations that willingly serve indigent clients. however, these organizations are often staffed by the most inexperienced attorneys and have frequent turnover as attorneys move on to different opportunities after gaining experience in family court. too often, it appears that attorneys for children and parents are perceived to be interchangeable, and consistent and skilled representation is not valued.40 ● “in speaking with judges, it was clear that they are aware of the limited interactions attorneys have with their clients, but they feel that due to limited resources (i.e., attorneys are paid so poorly and had high case loads), that there is little if anything they can do to hold attorneys accountable to quality representation of parents and youth coming into the system. a focus group with youth . . . (some of whom had a history of child welfare involvement) revealed that most did not know the name or contact information of their guardians ad litem.”41 5. parents experience interventions as coercive and feel a lack of clarity about when their case will be closed. each ia spends considerable time interviewing parents. the ia reviews then examine how policies and practices shape the interactions of workers with parents and the overall experience of parents. while many workers described wanting to help families, they also recognized the constraints of the system and the punitive nature of the interventions offered. for example, it was the practice in one jurisdiction to file termination of parental rights (“tpr”) petitions to “motivate” parents even though workers were still planning family reunification.42 other interventions, which were originally designed to engage families in planning and/or decisions about their lives, were implemented in ways that did not honor family networks and perpetuated the system’s control and power over the family. specifically, we found family group conferencing or team decision making meetings to be more like pre-trial conferences, with the focus of the meetings on fact-finding and negotiation of placement, rather than engaging families, identifying strengths and needs, and collaborating on case planning decisions.43 finally, the end of a case is not clear to parents. according to providers, caseworkers and other records, a black mother’s children were safely in her care for an entire year, yet service providers continued to conduct unannounced safety checks three to four times a week. as the mother’s attorney indicated, it is nearly impossible for clients to “prove they are not doing something”.44 as we have detailed, there are many reasons that families are not getting the help they need. we listed the prominent ones above, but there 40 see app. at b. 41 see app. at i. 42 see app. at j. 43 see app. at c; app. at a. 44 see app. at b. 704 colum. j. race & l. [vol. 12:688 are more. ultimately, this simple statement from a 2009 ia in a michigan county remains true: “this review found little evidence of monitoring for the quality and the cultural relevance of the services provided”.45 c. the child welfare system is designed in ways that cannot adequately and consistently help families, particularly black families. 1. child welfare caseloads are persistently much higher than experts in the field recommend. the child welfare field recommends that caseloads are manageable for workers in order to ensure ethical and best practices and reduce worker burnout and turnover (although there is not uniform agreement on caseloads or workloads for workers).46 special units and other targeted efforts periodically and temporarily reduce caseloads and workloads, but these efforts are usually time limited interventions only. most recently, in the 2020 midwest county ia, one worker said she had thirty-five cases, “which is just insane . . . there were supposed to be at 20. . . . like you just can’t. and so, i think things slipped through the cracks because-i mean, that’s a lot to put on one person.”47 another worker stated “like right now, i have 65 cases, 65 families, and so it’s difficult to contact all of them once a month. and i think it’s difficult for [parents] to kind of know who i am too.”48 high caseloads impede workers ability to investigate cases, work thoughtfully and collaborate with the family. further, workers report stress from the workload of child welfare. the workload involves managing the data collected from families and providers, keeping up with client visits, completing case plans and assessments, and writing court reports. of these tasks, workers consistently noted concerns with documentation in computer systems. in almost every ia, they reported needing to record information several times and in multiple places and completing multiple assessments as part of opening and closing cases. many of these tools are supposed to help workers in making decisions, like structured decision making tools, yet workers reported limited utility of these assessments in informing their decision making. in other words, workers viewed the tools as busy-work, but not helpful in guiding their decision making. 2. child welfare is a compliance-based system. caseworkers, providers, parents, and youths are judged by their compliance with tasks and case plans. for workers, compliance with processes and practices comes out of a fear of liability, with the question “what if something bad happens to a child” running through their mind. workers report no time and no reward for good clinical work with families, let alone meeting the minimal compliance requirements. in order to assess 45 see app. at i. 46 see generally caseload & workload, child welfare league of am., https://www.cwla.org/our-work/practice-excellence-center/workforce-2/caseload-workload/ [perma.cc/e4eq-chuk] (last visited june 30, 2022); see also nat’l ass’n of social work, nasw standards for social work practice in child welfare (2013), https://www.socialworkers.org/linkclick.aspx?fileticket=_fiu_udceac%3d&portalid=0 [perma.cc/7hj3-fvx9]. 47 see app. at a. 48 id. 2022] reforming isn’t enough 705 for compliance, families must constantly produce documentation and report in on their progress towards case goals with visits. 3. the child welfare system has inadequate mechanisms of accountability to families and communities. as noted earlier, the child welfare system has weak mechanisms of accountability to the people the system is supposed to serve and the communities where they live.49 the types of accountability we did find were to governmental processes, like filling out case plans and filing court reports. families reported they did not get the help they need, or the services offered were inadequate or a mismatch. families and community advocates did not have available to them clear and consistent ways to hold child welfare agencies and contracted providers accountable for quality the interventions and services received. additional examples include: ● “poor oversight of intake practices, problematic use of their risk assessment tool, and misuse of [tdm] meetings are institutional features that result in african american children being more likely to be removed from their homes. further, the widespread misapplication and misinterpretation of legislation/policy and the lack of a clearly articulated and functional case practice model compound negative outcomes for african american families.”50 ● “there are few mechanisms for obtaining and using family/youth feedback on the timeliness, relevance or quality of services. challenges in enrolling in services or false starts as parents search for programs that best suit their needs can delay reunification with their children . . . many times these services are difficult to access or have a long waiting list. [social workers] discussed feeling blamed for this, but ultimately the responsibility falls on the parents to enroll in the service and no other party is formally accountable for barriers encountered by families. court reports and other documentation does not consistently describe these types of barriers.”51 “focus group participants report that judges review the identified educational supports that are supposed to be provided to children and youth, but that the judges and leadership do not hold the department or providers accountable to ensure that these educational supports are received.”52 4. broader laws and policies do not facilitate workers in engaging families for extended periods of time and in supportive ways. workers’ actions are influenced by a fear of liability, perceived financial cost, and a focus on rescuing children instead of supporting the healing and integrity of families. just two of the many examples are: ● timelines are unrealistic in terms of human needs—e.g., the adoptions and safe families act limits how long reunification 49 see supra part iii.a. 50 see app. at b. 51 ctr. for the study of soc. pol’y, supra note 25, at 19–20. 52 see app. at h. 706 colum. j. race & l. [vol. 12:688 services can be supported by the state and the timelines pressure workers and families to move faster than what may be appropriate to support adequate mental health or substance use interventions.53 ● funding streams incentivize removal and adoption over supporting children in their home or facilitating a longer reunification process. it is important to note however that these ias occurred before the implementation of the family first prevention services act of 2018 (“ffpsa”), which shifts some of the financial incentives.54 iv. reform is not enough the racist history of separating black children from parents still shapes today’s child welfare system.55 the ias documented the systemic racism that allows for separations to occur and the harm to black children and parents. the ias also documented how black families experience immense environmental and economic stressors that persist because of how structural racism shapes policy and funding choices. child welfare system interventions do not account for nor alleviate these stressors. after 15 years of this work, we doubt that it is even possible to reform the child welfare system and join in calls for the abolition of the child welfare system.56 by abolition, we mean both dismantling the current child welfare system and, importantly, imagining and creating new, deep investments in families and communities and community support that promotes healing and thriving. the ias have shown that the child welfare system is not able to consistently help and ensure good outcomes for all families despite years of 53 adoption and safe families act of 1997, pub. l. no. 105-89, 111 stat. 2115 (codified as amended in scattered sections of 42 u.s.c.). 54 family first prevention services act of 2018, pub. l. no. 115—123. in 2018, the ffpsa was signed into law as part of the bipartisan budget act (h.r.1892). ffpsa supports keeping children in their homes when safe and possible by allowing states to claim federal title iv-e reimbursement for prevention programs and services. ffpsa is an effort at child welfare financing reform. ffpsa supports services and program including mental health and substance abuse prevention and treatment services and in -home parenting skill based programs that include parenting skills training, education, and counseling. keeping families together: family first prevention services act (ffpsa) aligns financing with child wellbeing, ctr. for the study of soc. pol’y, https://cssp.org/about-us/connect/pressroom/keeping-families-together-family-first-prevention-services-act-ffpsa-aligns-financingwith-child-wellbeing/ [perma.cc/vfz3-qz9k] (last visited feb. 28, 2022). 55 see elisa minoff, entangled roots: the role of race in policies that separate families, ctr. for the study of soc. pol’y 3–4 (2018), https://cssp.org/wpcontent/uploads/2018/11/cssp-entangled-roots.pdf [perma.cc/u4t7-ku7q] (stating that “[r]acism has always played a central role in the publicly funded systems that separate families”); dettlaff & boyd, supra note 12, at 255 (explaining that the overrepresentation of black children in the child welfare system is concerning because “the act of forced separation of children from their parents is a source of significant and lifelong trauma, regardless of how long the separation lasts”). 56 many parent activists and scholars are applying an abolitionist lens to their work, calling for an end to all carceral systems, including the child welfare system, and are demanding community approaches to promoting child and family well-being. these individuals and organizations include joyce mcmillian of jmacforfamilies, we be imagining, black lives matter-los angeles, reimagine child safety, #repealasfa campaign, upend movement, professor dorothy roberts, derecka purnell, the juvenile law center to name a few. 2022] reforming isn’t enough 707 efforts and significant financial investment. the child welfare system has improved individual experiences and provided some opportunities for youth and families—like assisting with access to health and mental health care, supporting college and job opportunities, providing mentorship to youth, helping with time-limited affordable housing, training workers to be more engaging and welcoming and affirming of the diversity of families involved in these systems. yet our ias show that writ large even “model” child welfare systems continue to separate children from their families, place children in congregate care settings, grapple with child maltreatment in foster care, and fail to ensure permanency for all children.57 the child welfare system remains subjected to political whims. child welfare leadership often changes with each election cycle, critical incident, or class action lawsuit. we observed in ias how leadership change can shift priorities, destabilize community partnerships, and prevent follow through on strategic plans and new initiatives. the child welfare workforce continues to be unstable, in large part because of high caseloads and workloads. child welfare budgets are dependent on state and local government negotiations and experience the unpredictability of economic downturns, budget cuts, and hiring freezes. politicians and conservative advocates have used the child welfare system as a testing ground for policies that that discriminate against lgbtq+ youth and families. political decisions have supported larger agencies in receiving government contracts and disadvantaged smaller grassroots, community-based helpers. political decisions have also allowed for expensive institutional care settings to operate long past when research demonstrated its harmful effects on children.58 reform efforts navigate this larger political context, sometimes proving to be successful in changing harmful practices and policies and sometimes not. overall, we do not see reform efforts sustaining, even in instances where class action litigation ensured new investments, additional staff, and substantial training and technical assistance.59 57 see app. at g; app. at f. 58 see what are the outcomes for youth placed in congregate care settings?, casey fam. programs (feb. 5, 2018), https://www.casey.org/group-placement-impacts/ [perma.cc/u7xu-ae8e], for an explanation of research from the past decade showing the use of congregate care as more expensive and producing poorer outcomes. see also residential treatment: what the research tells us, nat. coal. child prot. reform (apr. 18, 2011), https://drive.google.com/file/d/0b291mw_hlajssunaowr1dtk2sfu/view? resourcekey=0-xy1pxx40yi8ju3ictbcmua [perma.cc/z27t-j8xh] (summarizing the harm of residential treatment and suggesting better alternatives). 59 see angela r. v. clinton, 999 f.2d 320, 326 (8th cir. 1993) (upholding the agreement between parties that arkansas’ enaction of a bill diverting more funds to its child welfare systems as a “suitable basis for settling this action”); but see, e.g., paul kelly, ark. advocs. for child. and fams., the arkansas child welfare system: more than a decade of change yet many things remain the same 2–3 (2005), https://www.aradvocates.org/wpcontent/uploads/kc-aacf-archildwelfaresystem-2005-web.pdf [perma.cc/fd3m-5trb] (highlighting that in 2005, the department of children and family services reported mixed progress “[a]t best” in arkansas’ child welfare systems); see generally john kelly, little rock, in a child welfare crisis, becomes first test for family integrity & justice works, imprint (nov. 23, 2021), https://imprintnews.org/youth-services-insider/littlerock-child-welfarecrisis-first-test-milner-kelly/60606 [perma.cc/t7fp-kz3t] (reporting that in 2021 the entire frontline workforce turned over in little rock, arkansas). 708 colum. j. race & l. [vol. 12:688 fundamentally, there are problematic, dominant ideologies that underlie the child welfare system. these ideologies promote ideas that separating children from their families is acceptable and relatively harmless, that children are better off with families with more resources and in “better” communities, and that parents bear the shame of intervention and the burden to change. by focusing so intensely on individual family dynamics, the child welfare system masks the larger historically racist societal failures. this problematic ideology is pervasive, and reforms have failed to counter this ideology. rather, reforms have largely focused on improving programmatic interventions (parenting classes, anger management, therapy, intensive case management, substance use treatment, etc.) but have not provide families with money and other concrete help they need to alleviate the incredible stressors of poverty. reforms do not account for the “weathering”60 families experience. reform efforts to date only allow for limited family and youth “voice” and only as it relates to programs, not to shifting resources into the hands of families and communities. robust prevention services and basic concrete supports are still not consistently available to families. as we noted earlier, the child welfare system is not accountable to communities or families for the removal of children, their safety, or the type and quality of help families receive. federal, state, and local governments provide funding to child welfare and as part of that funding have different reporting or oversight requirements that focus on complying with policies and practices, not with outcomes for families. the child welfare system is not broken, but rather needs to be broken.61 child welfare reform has not and cannot end child maltreatment. the data and experiences from past ias, combined with other experiences with child welfare reforms, demonstrate that anti-blackness pervades the child welfare system. child welfare structures including policies, protocols, financing, training, and research have reinforced anti-blackness and negatively impacted families. the child welfare system cannot solve the core reasons why children, families and communities experience mental health, substance abuse, and other challenges. the system only intervenes in a limited way, uses coercive interventions, and provides limited resources. thus, we conclude that reforming child welfare will not be enough. ultimately, families will be safer and thrive when we fundamentally imagine the ways in which society supports children, families, and 60 ana sandoiu, ‘weathering’: what are the health effects of stress and discrimination?, med. news today (feb. 26, 2021), https://www.medicalnewstoday.com/ articles/weathering-what-are-the-health-effects-of-stress-and-discrimination#how-theweathering-concept-came-about [perma.cc/dj4m-ktdu] (defining weathering as “[r]epeated exposure to socioeconomic adversity, political marginalization, racism, and perpetual discrimination”); see also gene demby, the code switch podcast: making the case that discrimination is bad for your health, npr (jan. 14, 2018, 7:00 am), https://www. npr.org/sections/codeswitch/2018/01/14/577664626/making-the-case-that-discrimination-isbad-for-your-health [perma.cc/4xtq-lhsu] (interviewing arline geronimus, who originally coined the term “weathering” and discussing the myriad health effects). 61 see alan j. dettlaff et al., it is not a broken system; it is a system that needs to be broken: the upend movement to abolish the child welfare system, 14 j. pub. child welfare 500 (2020). 2022] reforming isn’t enough 709 communities. in june 2020, the university of houston graduate college of social work and the center for the study of social policy launched the upend movement, a collaborative network aimed at creating a society in which the forcible separation of children from their families is no longer an acceptable solution. this involves simultaneously dismantling the racist policies and structures that produce harm and replacing these with resources and supports designed by families and communities that promote the safety and well-being of children in their homes. it is not about simply ending the child welfare system; it is about creating the conditions in society where the need for the child welfare system is obsolete. this movement builds on work done by parent leaders and advocates and is grounded in abolition theory. we advocate for human-centered, anticarceral responses to mental health, substance use, and domestic violence through supportive services that strengthen families and maintain children with their parents. abolition theory and practice is new in the child welfare space and the field is learning about what this means, managing fears that children will be left unsafe and unprotected, and struggling to imagine new practices and social relationships. although abolition is new to child welfare, it is not a new theory or practice. in his 1935 study black reconstruction in america, w. e. b. du bois called for “abolition democracy” meaning that a racially just society will require the creation of new institutions, practices, and social relationships.62 his vision was not realized, and racial injustices continued including in the child welfare system. in our paper, how we endup, we detail ideas of what supporting families and communities can look like.63 abolition is a vision of hope and optimism. abolitionists envision a world where children are safer and live in homes and communities where they will thrive: abolition seeks solutions for issues for which the state has no solutions, because the current system maintains and upholds ideologies and constructs that ensure harm will continue. we seek to build a society where children, families, and communities self-determine what well-being and safety mean for them and are supported with the resources to do so because they are no longer oppressed by a system that destroys their ties to families and communities.64 anti-racist, anti-carceral responses to ensuring children are safe and families can thrive will require the creation of new practices and social relationships, similar to what du bois calls for. 62see columbia center for contemporary critical thought, abolition democracy, youtube (oct. 15, 2020), https://www.youtube.com/watch?v=l42cuzhys-4&t=10s [perma.cc/hut3-7tjn], for an analysis of w. e. b. du bois’ “abolition democracy”. 63 see generally alan dettlaff et al., how we endup: a future without family policing, upend (2021), https://upendmovement.org/wp-content/uploads/2021/06/how-weendup-6.18.21.pdf [perma.cc/9gm9-gp3v]. 64 id. at 5. 710 colum. j. race & l. [vol. 12:688 v. conclusion racial inequities in child welfare and the harms that result have been documented for nearly sixty years. despite decades of reform efforts, these inequities persist. we see headlines weekly about incidents and problems in county and state systems. lawsuits continue to be filed to address harms that have been done by the system. reunification rates remain low. poor outcomes for youth including homelessness, early pregnancy, criminal justice involvement, and being sexually exploited or trafficked continue. too many young people still exit the system with no permanency. we intend to continue using the ia to uncover and document the structures of the child welfare system, the language used to describe families, and the impact on families. we also will use the ia to explore how communities are able to care for their children and families. however, the ia findings and recommendations should be used for reforms that work toward the abolition of child welfare, not its expansion given what we know about the harm of the system. upend is just one of many abolition efforts that ask us to shift how we think about solving the challenges that families face. the work of organizers, advocates, and parents to render the need for the child welfare system obsolete and keep families safer must be explored and supported. we seek to end the surveillance and separation of black, native, lgbtq+ and increasingly latinx children from their families. we believe that collectively we can build healing communities where residents intervene and provide support. massive investment in communities which have historically been disinvested in will facilitate both power and resources for black families and communities to imagine and establish a community system of care where children, youth, and families seek and receive the care they need. 2022] reforming isn’t enough 711 appendix: institutional analyses referenced (in order of appearance) our overall point in this piece is to emphasize that it is less important where the data comes from, and more important what the data says. by including this information at the end, we are trying to show how universal the findings are without indicting any single jurisdiction. the child welfare system is an institution that affects the lives of children nationwide. akristen weber & sarah morrison, wyandotte county institutional analysis (feb. 5, 2021) (unpublished report) (on file with the center for the study of social policy and kristen weber). boronde a. miller et. al., monroe county, new york: institutional analysis report draft (apr. 24, 2012) (unpublished report) (on file with the center for the study of social policy). cmartha raimon et. al., linn county, iowa: institutional analysis report (aug. 19, 2011) (unpublished report) (on file with the center for the study of social policy and kristen weber) dpraxis int’l, st. louis county greenbook institutional analysis (undated) (unpublished report). ekristen weber, understanding families’ experiences of domestic violence and child welfare services: the waukegan institutional analysis report for the quality improvement center for domestic violence in child welfare (oct. 23, 2018) (unpublished report) (on file with the center for the study of social policy and author). fkristen weber et. al., positive outcomes for all: using an institutional analysis to identify and address african american children’s low reunification rates and long-term stays in fresno county’s foster care system (2010), https://praxisinternational.org/wp-content/uploads/2015/10/fresno countyinstitutionalanalysis.pdf [perma.cc/9l6x-3u6g]. gkristen weber & bill bettencourt, allegheny county institutional analysis: report of findings (july 2014) (unpublished report) (on file with center for the study of social policy and kristen weber). hctr. for the study of soc. pol’y & the u. of houston graduate coll. of soc. work, getreal: final report to the walter s. johnson foundation (undated) (unpublished report) (on file with the center for the study of social policy). ipraxis int’l & ctr. for the study of soc. pol’y, race equity review: findings from a qualitative analysis of racial disproportionality and disparity for african american children and families in michigan’s child welfare system 38 (2009), https://praxisinternational.org/wp-content/uploads/2015/12/ michiganreportjan09.pdf [perma.cc/x85a-eqfh]. jpraxis int’l, institutional analysis in the quad city region of iowa and illinois (undated) (unpublished). i. introduction ii. finding, adapting, and using the ia a. searching for the right methodology. b. the methodology c. using the ia in different jurisdictions iii. the common themes across different jurisdictions from 2005–2020 a. racism exists and shapes the child welfare system. b. fundamentally, families are not getting the support they need from the child welfare system. 1. communities act on an assumption that child welfare agencies can get families help. 2. family relationships are undermined rather than supported. 3. “reasonable efforts” to keep families together/quickly reunify families is a legal construct that is not consistently used or meaningfully defined. 4. consistent, quality legal representation is not available to parents. 5. parents experience interventions as coercive and feel a lack of clarity about when their case will be closed. c. the child welfare system is designed in ways that cannot adequately and consistently help families, particularly black families. 1. child welfare caseloads are persistently much higher than experts in the field recommend. 2. child welfare is a compliance-based system. 3. the child welfare system has inadequate mechanisms of accountability to families and communities. 4. broader laws and policies do not facilitate workers in engaging families for extended periods of time and in supportive ways. iv. reform is not enough v. conclusion appendix: institutional analyses referenced microsoft word cjrl_nanda_final.docx the construction and criminalization of disability in school incarceration jyoti nanda0f * this article explores how race functions to ascribe and criminalize disability. it posits that for white students in wealthy schools, disabilities or perceived disabilities are often viewed as medical conditions and treated with care and resources. for students of color, however, the construction of disability (if it exists) may be a criminalized condition that is treated as warranting punishment and segregated classrooms, possibly leading to juvenile justice system involvement. providing a review of the k-12 disability legal regimes, this article maps how the process of identifying a student with a disability happens in a hypercriminalized school setting. the article argues that the school itself contributes to the construction and criminalization of disability and that the attribution of disability is a product of the subjectivity built into the law, heavily surveilled school environments, and biases held by teachers and administrators. for students of color, instead of a designation that attracts more resources, disability is one of the mechanisms through which they are criminalized. this article culminates with a call for scholars and practitioners to understand the web that exists in the construction and criminalization of disabilities for black and latinx children and the role that schools and school actors play in this process. * binder clinical teaching fellow and youth and justice clinic faculty founder, ucla school of law. an early draft of this article benefitted from helpful comments at the nyu school of law clinical teaching workshop and the criminal justice workshop at ucla school of law. for comments on or conversations about this article, the author thanks cheryl harris, devon carbado, kimberlé crenshaw, scott cummings, beth colgan, harit trivedi, tendayi achuime, asli bâli, bob dinerstein, noah zatz, beth ribet, devon rios, vivian wong, dawn yuster, suma peesapati, katherine perez, neelum arya, and the students in professor carbado’s advanced critical race studies class at ucla school of law. special thanks to sunney poyner for invaluable research and editorial suggestions as well as alma d. gonzalez, editor-inchief of the columbia journal of race and law, and the journal’s editorial staff for their edits. this article is dedicated to the author’s clients, and their families, in the ucla school of law youth and justice clinic (2014–2019). 266 columbia journal of race and law [vol. 9:2 i. introduction ............................................................. 267 ii. historical roots of the inequities in the individuals with disabilities act (idea) .............. 277 a. defining disability and the idea ......................... 277 b. inequalities in the history of the idea ................ 283 iii. hyper-surveillance in schools creates conducive environment for criminalizing disabilities ................................................................ 288 a. surveillance in today’s under-resourced schools ................................................................... 288 b. impact of surveillance on black and latinx students and disability ......................................... 291 iv. attribution of disability to student pre-idea identification ........................................................... 296 v. racial disparities as racial stratification of children with disabilities ..................................... 307 a. the role of subjectivity in the law in categorizing black and latinx students with a disability ................................................................ 307 b. criminalization and racial stratification of disability ................................................................ 314 vi. conclusion ................................................................ 320 no. 2:265] disability in school incarceration 267 i. introduction though the overrepresentation of black1 and latinx2 youth with disabilities3 in the juvenile justice system has been often noted,4 disability scholarship in this area has focused on the limits of special education laws and the overrepresentation or underrepresentation of children of color in certain cognizable 1 in this article, i use the terms african american and black interchangeably, following the example of kimberlé crenshaw, who states: “i shall use ‘african-american’ and ‘black’ interchangeably. when using ‘black,’ i shall use an upper-case ‘b’ to reflect my view that blacks, like asians, latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.” kimberlé williams crenshaw, race, reform and retrenchment: transformation and legitimation in antidiscrimination law, 101 harv. l. rev. 1331, 1332 n.2 (1988). however, because the term african american “is both culturally more specific and historically more expansive than the traditional terms that narrowly categorize us as america’s ‘other,’” both are used in this article. id. 2 following the example of the network for justice and to “reject the gender binary that is inherent linguistically in both ‘latino/as’ and its newest form latin@s,” i use the term “latinx” in this article. luz e. herrera & pilar margarita hernández escontrías, the network for justice: pursuing a latinx civil rights agenda, 21 harv. latinx l. rev. 165, 165 n.1 (2018). in doing so, however, i recognize the fraught history of the limits of the terms latino/latina, latinx, and hispanic. for a fuller account of this history, see how the united states racializes latinos: white hegemony and its consequences 9 (josé a. cobas et al. eds., 2009) (“racialization often entails minimizing historical, cultural, and linguistic differences among peoples from the same region—including, for example, those in various latin american countries. such labels as ‘hispanic’ typically collapse diverse peoples into a single overarching group . . . .”). 3 for this analysis, i rely on a broad definition of disability. rachel adams et al., disability, in keywords for disability studies 5, 5 (rachel adams et al. eds., 2015) (“disability encompasses a broad range of bodily, cognitive, and sensory differences and capacities. it is more fluid than most other forms of identity in that it can potentially happen to anyone at any time . . . .”). 4 the overrepresentation of black and latinx children in special education has been wildly documented in federal and state policies. but see paul l. morgan & george farkas, evidence and implications of racial and ethnic disparities in emotional and behavioral disorders identification and treatment, 41 behav. disorders 122, 122 (2016) (arguing that when “controlling for individual-level academic achievement and behavior, which are known to strongly predict children’s likelihood of receiving special education services,” it is white children who are overrepresented in special education); jacob hibel et al., who is placed into special education?, 83 soc. educ. 312 (2010) (arguing the same); paul l. morgan & george farkas, are we helping all the children that we are supposed to be helping?, 45 educ. researcher 226 (2016) (arguing the same and responding to criticism). 268 columbia journal of race and law [vol. 9:2 disability categories under the individuals with disabilities education act (idea).5 scholars have given some attention to the role played by school atmosphere and racial and cultural bias on the part of teachers6 and administrators in the process of identifying a student with a disability.7 however, given that disability attribution is discretionary, it is oftentimes difficult to study or even pinpoint when the process of attributing a disability to a student first occurs. meanwhile, a robust body of 5 see, e.g., 20 u.s.c. § 1401 (2016); racial inequity in special education (daniel j. losen & gary orfield eds., 2002); special education advocacy (ruth colker & julie k. waterstone eds., 2011); samuel r. bagenstos, educational equality for children with disabilities: the 2016 term cases, 2017 acs sup. ct. rev. 17. the categories that idea sets out are autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment (including blindness). racial disparities exist throughout the identification process for special education services. see press release, u.s. dep’t of educ., fact sheet: equity in idea (dec. 12, 2016), https://www.ed.gov/news/ press-releases/fact-sheet-equity-idea [https://perma.cc/y468-yuvt]. however, black children are especially disproportionately represented in the emotional disturbance and intellectual disability categories. memorandum from alexa posny, dir., office of special educ. programs to the state directors of special educ. (apr. 24, 2007) (on file with the columbia journal of race and law). 6 see, e.g., sigmund tobias et al., teacher-student ethnicity and recommendations for special education referrals, 74 j. educ. psychol. 72 (1982); cf. lorenzo adrian woodson, teacher and student variables affecting special education evaluation and referral (nov. 2017) (unpublished ph.d. dissertation, walden university) (on file with the walden dissertations and doctoral studies collection, walden university). 7 see, e.g., beth a. ferri et al., critical conversations across race and ability, in discrit: disability studies and critical race theory in education 213 (david c. connor et al. eds., 2015); david s. mandell et al., racial/ethnic disparities in the identification of children with autism spectrum disorders, 99 am. j. pub. health 493 (2009). literature in this area around disabilities in preschool children is largely relegated to how it impacts discipline. christina novoa & rasheet malik, suspensions are not support: the disciplining of preschoolers with disabilities, ctr. for am. progress (jan. 17, 2018), https://www.americanprogress.org/issues/earlychildhood/reports/2018/01/17/445041/suspensions-not-support/ [https:// perma.cc/4tym-es47]; john kelly, disability, race, and reasons: what we know, and don’t know, about disparity in school discipline, chron. soc. change (apr. 18, 2018), https://chronicleofsocialchange.org/youth-servicesinsider/disability-race-reasons-know-dont-know-disparity-school-discipline [https://perma.cc/2bam-qt5v]. no. 2:265] disability in school incarceration 269 literature on zero-tolerance policies in schools8—addressing part of what has been dubbed the “school-to-prison pipeline”—has failed to squarely address how the atmosphere created by these policies negatively impacts students with disabilities directly and indirectly.9 specifically, fully unpacking how and why children of color with disabilities are overrepresented in the juvenile justice system is many times relegated to a footnote, largely because the issue is unduly complicated.10 this article seeks to bridge this gap by examining how, for students of color, 8 zero tolerance policies require school officials to apply specific, consistent, and harsh punishment—usually suspension or expulsion—when students break certain rules. under zero tolerance policies, harsh punishment applies regardless of the circumstances. for a fuller account, see derek w. black, ending zero tolerance: the crisis of absolute school discipline (2016); see also david m. ramey, the social structure of criminalized and medicalized school discipline, 88 soc. educ. 181 (2015) (discussing zero tolerance policies in schools as a form of criminalization of students); christopher boccanfuso & megan kuhfeld, child trends, multiple responses: evidence-based nonpunitive alternatives to zero tolerance (2011), http://www.nea.org/assets/docs/alternatives-tozero-tolerance.pdf [https://perma.cc/ldd8-4rdl] (discussing the development of zero tolerance policies and possible solutions). 9 the pipeline is a metaphor, developed by community activists in the 1990’s as an organizing model, to capture the linear nature of this phenomenon, starting with unjustly punitive and zero tolerance school discipline policies leading to suspension, expulsion, and ultimately referral to the justice system. the pipeline has been rightfully criticized for its limited use as a metaphor. see, e.g., damien m. sojoyner, first strike: educational enclosures in black los angeles xvi (2016) (“although community activists developed the stpp [school-to-prison pipeline] as an organizing model during the 1990s, the model has been wholly subsumed into the state via policy initiatives, positivist research agendas, and official government mandates. manipulated in this manner, the framing of the stpp is no longer a viable option to understand the complex relationship of the enclosure processes that have brought us to the current moment.”); see also lizbet simmons, the prison school: educational inequality and school discipline in the age of mass incarceration 29–30 (2016) (arguing that circumstances facing many underserved children are less a pipeline and more of a continuum between school and prison, operating on a “correctional spectrum” where one feeds the other). 10 see andrea kalvesmaki & joseph b. tulman, a systems theory analysis for ending the school-to-prison pipeline: using disability rights laws to keep children in schools and out of courts, jails, and prisons, in the school to prison pipeline: the role of culture and discipline in school 181 (nathen s. okilwa et al. eds., 4th ed. 2017) (discussing the school-to-prison pipeline in the context of systems theory and its intersection with idea but no structural analysis on how or why disability disproportionately exists). 270 columbia journal of race and law [vol. 9:2 the construction of disability (if it exists) may be a criminalized condition “remedied” with punishment and segregated classrooms, eventually leading to the juvenile justice system, in which children with disabilities are grossly overrepresented.11 simultaneously, for white students in wealthy schools, disabilities or perceived disabilities are viewed as medical conditions and treated with care and resources.12 this article maps how the process of identifying a student with a disability happens in hyper-criminalized school settings, both within the confines of the idea and outside of it. first, it describes the impact of the heavily surveilled school environment, including the presence of school resource officers, and how the school site creates tensions that cause misperceptions of student behavior as nonnormative, which is often indicative of a disability. this article argues that the school site itself contributes to the construction and criminalization of 11 kathleen r. skowyra & joseph j. cocozza, nat’l ctr. for mental health & juvenile justice, blueprint for change: a comprehensive model for the identification and treatment of youth with mental health needs in contact with the juvenile justice system 58 (2007), https://www.ncmhjj.com/wp-content/uploads/2013/07/ 2007_blueprint-for-change-full-report.pdf [https://perma.cc/jv9u-fphp] (“there is strong empirical evidence that suggests that large numbers of youth in juvenile correctional placement have significant mental health needs. data obtained from the current ojjdp [office of juvenile justice and delinquency prevention] study suggest that 76.4 percent of youth (72.4% of males and 87.2% of females) in secure correctional facilities have at least one mental health diagnosis.”). 12 see jim epstein, in new york, rich disabled kids get the city to send them to private school. poor disabled kids get screwed., reason (jan. 25, 2018), https://reason.com/reasontv/2018/01/25/voucher-specialneeds-reimbursement-nyc [https://perma.cc/8hfu-2uz9]; alison leigh cowan, amid influence, a struggle over special education, n.y. times (apr. 24, 2005), https://www.nytimes.com/2005/04/24/education/amidaffluence-a-struggle-over-special-education.html [https://perma.cc/ev9lw7rz] (“the battle [for funding] is particularly intense in the suburbs, where wealthy, educated parents no longer see special education as a stigma or trap. they are pressing hard for services and accommodations to address their children’s learning needs, from extra time on tests to tuition for private schools.”). the author suspects that how disabilities are perceived and/or treated in wealthier schools may still mirror the argument in this article that race rather than economics is the primary factor causing a disparity. this inquiry is the topic of a future project. under the current presidential administration, scholars have raised questions about the disproportionality of children of color in special education writ large. see, e.g., paul l. morgan et al., replicated evidence of racial and ethnic disparities in disability identification in u.s. schools, 46 educ. researcher 305 (2017). no. 2:265] disability in school incarceration 271 disability. second, this article illustrates how the attribution of disability is a product of the subjectivity built into the idea, hyper-disciplined school environments, and racial and cultural biases of teachers and administrators regarding the way black and latinx students should act and perform. it suggests that the combination of these factors causes the over, under, and misdiagnosis of black and latinx children with a disability. this is particularly manifested in the assignment of disproportionate numbers of black and latinx students to one of the most stigmatized disability categories under the idea: “emotional disturbance.”13 the result is black and latinx students receiving an education in segregated classrooms with heavy discipline ostensibly in response to deviant behavior associated with the diagnosis. this gives rise to a form of racial stratification and ultimately, criminalization of students labelled as emotionally disturbed. this article describes the nature of that web and explains how it leads to the criminalization of some children, largely black and latinx, through the construct of disability. the starting point is the premise that both disability and race produce marginal identities and thus a student of color with a disability is at a higher risk of discrimination and negative 13 children found to have emotional disturbance (ed) can be placed in segregated special education classrooms if their individualized education program, developed primarily by school staff, states that this is appropriate. approximately eighteen percent of children labeled ed spend forty percent or less of their day inside of a regular classroom. percentage distribution of students 6 to 21 years old served under individuals with disabilities education act (idea), part b, by educational environment and type of disability: selected years, fall 1989 through fall 2017, nat’l ctr. for educ. stat. [hereinafter students served under idea], https://nces.ed.gov/ programs/digest/d18/tables/dt18_204.60.asp [https://perma.cc/d37c-hs4p]. additionally, black boys are two times as likely as their white peers to be put into the ed category for reasons worth scrutiny. u.s. dep’t of educ., 38th annual report to congress on the implementation of the individuals with disabilities education act xxvi (2016) (“black or african american students ages 6 through 21 were 2.08 and 2.22 times more likely to be served under idea, part b, for emotional disturbance and intellectual disabilities, respectively, than were the students ages 6 through 21 in all other racial/ethnic groups combined.”); nat’l ctr. for educ. statistics, children and youth with disabilities 2–3 (2017) (finding that black students and students identifying with more than one race were diagnosed with emotional disturbance at a rate of seven percent compared to the rate at which children served under idea overall were diagnosed— five percent). for fuller discussion of this issue, see part v. 272 columbia journal of race and law [vol. 9:2 outcomes due to the intersectional nature of these two identities.14 an important line of the argument is the claim that, for students of color, disability is one of the mechanisms through which they are criminalized.15 this helps explain why students of color with disabilities are overrepresented in the juvenile justice system. part of the contribution this article hopes to make is to broaden the concept of the school-to-prison pipeline (the pipeline), and to rethink the metaphor of the pipeline altogether. 14 it is tempting, in this context, to strenuously and wholeheartedly reject the relationship between disability and race out of recognition that the label “disability” is a discursive weapon used to frame children of color as alternately less competent, intelligent, stable, likeable, reasonable, and worthy of meaningful educational access. this occurs because of the historical devaluation of people with disabilities, which has and continues to encourage those without disabilities to look down upon those with them. we see evidence of this in the appropriation of the word “retarded,” which at one time was a medical diagnosis and which grew to be commonly used by people without disabilities to imply that others are unintelligent or otherwise less than themselves. mark peters, the r-word and the challenging history of words for dummies, bos. globe (mar. 6, 2017), https://www.bostonglobe.com/ ideas/2017/03/06/the-word-and-challenging-history-words-for-dummies/ 6hegdgekmrauw4mpyvf6yn/story.html [https://perma.cc/9v9e-qwww]. both disability and race are inextricable social constructs intended to maintain the subordination of a subset of vulnerable populations. while in some instances the label of disability is purely a stigmatized imposition meant to mischaracterize racial characteristics as a medical problem, many children and youth of color have impairments, illnesses, and injuries that function and are experienced as disabilities. see beth ribet, naming prison rape as disablement: a critical analysis of the prison litigation reform act, the americans with disabilities act, and the imperatives of survivor-oriented advocacy, 17 va. j. soc. pol’y & l. 281, 281 (2010) (calling this experience “disablement—that is an institutional and systemic process which has as its consequence the infliction of physical and psychiatric conditions which are or become disabling”). 15 at this point, it is helpful to more specifically define the term “criminalized.” “criminalized” means the process by which disability is “rendered deviant and [is] treated with shame, exclusion, punishment, and incarceration.” victor rios, punished: policing the lives of black and latino boys xiv (2011). as rios examined in his book, in this case, criminalization occurs “beyond the law” and travels into the disability arena with a classification. id. this is not to say that disability is an identity that is naturally, easily, or rightfully criminalized. instead, this article argues that the racial subordination present throughout the history of the united states and analyzed through a critical race theory lens works through the legal structures that govern whether people with disabilities have access to appropriate accommodations such that people of color with disabilities become criminalized, often through the school-to-prison pipeline. ultimately, if we created a universally accessible society, the carceral state would not be able to co-opt the disability identity in this way. no. 2:265] disability in school incarceration 273 scholars have examined in depth the racial16 and gendered17 dimensions of the pipeline, the negative impacts of heavy surveillance,18 and the effect of the discretionary discipline policies the pipeline engenders.19 they have, however, paid insufficient attention to the role of schools in the attribution of disability outside of a focus on high rates of discipline and failure to implement the rights and protections in disability law.20 moreover, scholars who address disability laws affecting youth have carefully unpacked the ways in which disability laws do not effectively protect children of color with disabilities—a failure 16 see generally rios, supra note 15; jesselyn mccurdy, targets for arrest, in from education to incarceration: dismantling the schoolto-prison pipeline 86 (anthony j. nocella ii et al. eds., 2014); jason p. nance, over-disciplining students, racial bias, and the school-to-prison pipeline, 50 u. rich. l. rev. 1063 (2016). 17 see generally karen nicole wallace, the intersection of race, gender and the school to prison pipeline: a case study on the impact of exclusionary discipline on african american girls (nov. 2017) (unpublished ph.d. dissertation, walden university) (on file with walden dissertations and doctoral studies, walden university); monique w. morris, african am. policy forum, race, gender, and the school-to-prison pipeline: expanding our discussion to include black girls (2012); shannon d. snapp et al., messy, butch, and queer lgbtq youth and the school-toprison pipeline, 20 j. adolescent res. 57 (2014). 18 see rachel anspach, disabled youth are more at risk of being incarcerated, teen vogue (oct. 9, 2017), https://www.teenvogue.com/ story/why-disabled-youth-are-more-at-risk-of-being-incarcerated [https:// perma.cc/bmt7-daqd] (discussing why it is necessary to consider an intersectional lens that includes both disability and race when attempting to fix the pipeline). see generally simmons, supra note 9; black, supra note 8. 19 see generally simmons, supra note 9; mariella i. arredondo & natasha t. williams, more than a metaphor: the contribution of exclusionary discipline to a school-to-prison pipeline, 47 equity & excellence educ. 546 (2014). 20 see, e.g., catherine y. kim et al., the school-to-prison pipeline: structuring legal reform 61–64 (2010). my attempt here is not to just layer a disability lens onto the pipeline literature. rather, i invoke critical race theorist alfredo artiles, who has carefully documented how race and disability identities are connected in complicated ways within the american education system. see, e.g., alfredo j. artiles, untangling the racialization of disabilities: an intersectionality critique across disability models, 10 du bois rev. 329 (2013) (arguing that structural dynamics within the education sphere render young students of color with disabilities most vulnerable and least likely to effectively access academic achievement); alfredo artiles, toward an interdisciplinary understanding of education equity and difference—the case of the racialization of ability, 40 educ. researcher 431 (2011); see also anspach, supra note 18. 274 columbia journal of race and law [vol. 9:2 often due to the way children are diagnosed.21 in this disability literature, however, criminal justice implications are given minimal treatment. the literature also does not adequately delve into the role that racial bias and language bias22 may play in constructing disability for different communities.23 attorneys have become attune to the role that poverty may play in creating trauma that may rise to the level of a cognizable disability,24 but these analyses do not sufficiently explore the school’s role in 21 rebecca vallas, the disproportionality problem: the overrepresentation of black students in special education and recommendations for reform, 17 va. j. soc. pol’y & l. 181 (2009); daniel losen & kevin g. welner, disabling discrimination in our public schools: comprehensive legal challenges to inappropriate and inadequate special education services for minority children, 36 harv. c.r.-c.l.l. rev. 407 (2001). 22 while not the focus of this article, disability concerns for english language learners (ell) are largely paralleled with much of this article’s discussion on attribution of disability to students based on possible teacher misperceptions or bias. in these cases, teachers or assessors may incorrectly assume that a child is having difficulty in class because of a disability when they would benefit more from language support. for a more comprehensive analysis, see peggy mccardle et al., learning disabilities in english language learners: identifying the issues, 10 learning disabilities res. & prac. 1 (2005). 23 it is worth noting here that similar to the absence of a conversation about the role racial bias may play in disability diagnostic, there is also a limited understanding and examination in the relevant literature of the ways in which bias against lesbian, gay, bisexual, and transgender (lgbt) people with disabilities may affect categorization and the accommodations provided. though this article does not address this issue directly, it is important to acknowledge the historic mistreatment and stigmatization through diagnosis by the medical community. see thomas scott duke, lesbian, gay, bisexual, and transgender youth with disabilities: a meta-synthesis, 8 j. lgbt youth 1, 45 (2011) (“lgbt individuals have long had an uneasy relationship with the medical and mental health establishments, which have tended to view queer expressions of gender and sexuality as pathological deviations from normal sexual development (i.e., as mental illnesses).”). 24 for an example of this that race and disability scholars have viewed as problematic due to its overgeneralizations regarding the city of compton and those who live there, see complaint, peter p. v. compton unified sch. dist., no. 2:15-cv-03726-mwf-pla (may 18, 2015); see also avi asher-schapiro, should growing up in compton be considered a disability?, vice news (oct. 20, 2015), https://news.vice.com/article/shouldgrowing-up-in-compton-be-considered-a-disability [https://perma.cc/92rn23xk] (suggesting that a motivation for the lawsuit and a reason for the “trauma-informed services for the entire school district” remedy was to avoid the district’s practice of calling police to address behavioral issues that may be the result of trauma). no. 2:265] disability in school incarceration 275 constructing disability or in contributing to the criminalization of disability, as this article suggests they should.25 this article thus intervenes into both the disability rights literature and the juvenile justice literature, subjecting both to an intersectional analysis. part ii provides a brief overview of the disability legal regime that covers k-12 students. special education laws were enacted in the 1970’s to curb discretion and ensure inclusion of all students as part of an equal and fair education;26 sadly, the laws’ purposes have not yet been fully realized. inequality and discretionary problems within the law persist today and contribute to the disability criminalization problem this article seeks to expose. part iii describes a frequently overlooked factor in the construction and criminalization of disabilities: the prisonlike environment in some schools and how this environment itself contributes to the racialized construction of disabilities. in parts iv and v, this article articulates with some specificity how law, extralegal factors, and bias facilitate racialized constructions of disability. central to this analysis is the claim that the construction of disability is not simply a function of individual teachers making individual choices about individual students—it is a structural problem. this overarching analysis begins in part iv by examining the nuanced process through which teachers and administrators mark students as having a cognizable disability—the attribution process itself. the discussion reveals the various extralegal mechanisms at play. specifically, it argues that teachers utilize subjectivity to first identify a student by relying on their racial and cultural understandings of the student. accordingly, these assessments 25 the author’s hope is that this intersectional analysis will demonstrate how “disability and race do more than intersect in order to reinforce or intensify ideological stereotypes. . . . literally physical or psychological disablement (as well as social and political subordination) can also be a process that results in disability imposed through power relations.” beth ribet, surfacing disability through a critical race theoretical paradigm, 2 geo. j. l. & mod. critical race persp. 209, 217 (2010). though this article offers a robust critique of the application of current disability laws in the school context, the author recognizes the current application’s utility for many students given the absence of an alternative model to access services and benefits. 26 nicole buonocore porter, relieving (most of) the tension: a review essay of samuel r. bagenstos, law and the contradictions of the disability rights movement, 20 cornell j.l. & pol’y 761 (2011). 276 columbia journal of race and law [vol. 9:2 are created through implicit and explicit racialized biases that are collectively expressed and legitimated. part v interrogates the disproportionately high number of black and latinx students in certain cognizable disability categories (e.g., emotional disturbance) and disproportionately low numbers in other categories (e.g., autism). it suggests that these differing distributions reflect a double bias: first, a bias toward certain disability categories that are more stigmatized and ranked as more problematic and second, a bias against children of color. part v explicates how the over, under, and misdiagnosis of a child’s disability results in both racial disparity and a form of racial stratification—an actual ranking of race intertwined with disabilities. racial stratification manifests in many forms. for black and latinx students disproportionately placed in certain disability categories and in an environment with heavy police surveillance and zero-tolerance discipline policies, the outcomes can be dire: incarceration and ultimately criminalization of their (possible) disability.27 ultimately, this article returns to the initial insight regarding how race functions to ascribe and criminalize disability by demonstrating that for white students and students in high-performing schools, disability is often considered a medical condition that is treated and provided with resources, whereas for black and latinx students in hyper-surveilled schools, a disability may be a criminalized condition remedied with punishment and in the worst case, a more obvious and likely target for law enforcement and juvenile incarceration. in order to effectively address the disproportionate numbers of children with disabilities who are incarcerated, this article concludes with the notion that we must fully understand the web that exists in the construction and criminalization of disabilities for black and latinx children and the role that schools and school actors play in this process. 27 this criminalization is formalized when a child enters the juvenile justice system, setting them on a path to long-term incarceration. mit economist joseph doyle and associate professor of economics at latinx university anna aizer found that “those who were incarcerated as juveniles are 23 percentage points more likely to end up in jail as an adult when compared with juvenile offenders who, by the grace of a lenient judge, avoided incarceration. put another way: 40 percent of kids who went into juvenile detention ended up in prison by the age of 25.” chris sweeney, juvenile detention drives up adult incarceration rates, mit study finds, bos. mag. (june 11, 2015), https://www.bostonmagazine.com/news/2015/06/11/juveniledetention-mit-study/ [https://perma.cc/vj4w-cdql]. no. 2:265] disability in school incarceration 277 ii. historical roots of the inequities in the individuals with disabilities act (idea) a. defining disability and the idea this section provides a diagnostic examination of how disability is constructed for students with cognizable disabilities under the categories established by federal law. thus, a brief examination of these laws and their historic roots is an important backdrop. in particular, examining the legislative and political history reveals that the subjective pitfalls of the law’s structure that are at issue today were anticipated by educators and yet remain salient and unresolved today. to start, the scope of this analysis is confined to the estimated seventy-five to eighty percent of children who are involved with the juvenile justice and criminal justice systems and live with “disability,” although these numbers lose their impact and meaning without clarifying the broad category for whom conditions legally constitute a disability.28 disability is the sweeping term that triggers legal protection for children under the individuals with disabilities education act (the idea)29 and the americans with disability act (the ada).30 disabilities covered by the law range from physical, to specific learning, to social-emotional, to mental health, to developmental delay, and to a combination of multiple disabilities in various categories.31 “disability” is used here in the broadest sense while acknowledging that youth with disabilities are illserved by the breadth of the term because tailoring remedies to address specific needs is challenging.32 moreover, the ramifications for children with non-apparent or invisible disabilities can be dire in the context of subjective assessments and criminalized environments. thus, the majority of this analysis centers around a subset of youth with disabilities who are 28 see, e.g., skowyra & cocozza, supra note 11, at 129. 29 see 20 u.s.c. §§ 1400–01 (2018). 30 42 u.s.c. § 12102 (2018). 31 see 20 u.s.c. § 1401(3). 32 adams et al., supra note 3 (“disability encompasses a broad range of bodily, cognitive, and sensory differences and capacities. it is more fluid than most other forms of identity in that it can potentially happen to anyone at any time . . . .”). 278 columbia journal of race and law [vol. 9:2 especially vulnerable because they have been identified with a “non-apparent” disability33 (sometimes called “invisible disabilities”), defined as someone with a “physical, mental or neurological condition that limits a person’s movements, senses, or activities that is invisible to the onlooker.”34 as a recent report found: due to the “invisible” nature of disabilities like autism, crohn’s disease, chronic fatigue syndrome, dyslexia, or any number of mental illnesses, some behaviors that are a direct result of these disabilities are often seen in school contexts as laziness, inattention, disrespect or defiance. instead of receiving legally due accommodations for their disabilities, students with non-apparent disabilities are disproportionately labelled problem students. in combination with zero tolerance policies at schools, these students are suspended at disproportionately high rates and ultimately criminalized.35 33 samantha calero et al., ruderman family found., the ruderman white paper on the problematization and criminalization of children and young adults with non-apparent disabilities 3 (2017), https://rudermanfoundation.org/white_papers/criminalization-of-childrenwith-non-apparent-disabilities/ [https://perma.cc/pz4r-lda4]. 34 id. at 5. 35 id. at 1. the decision to suspend a child starts with a classroom teacher, but an administrator at the school ultimately makes the decision. states vary on their school discipline laws and regulations. the national center on safe supportive learning environments tracks state discipline laws. school discipline laws & regulations by state & category, nat’l ctr. on safe supportive learning environments, https://safesupportivelearning. ed.gov/discipline-compendium/choose-type/all/all [https://perma.cc/39w3qgsp]. the discretion that comes with these laws leads to disproportionality in who is suspended, putting them at risk of further discipline and stigma. black students, boys, and students with disabilities were disproportionately disciplined (e.g., suspensions and expulsions) in k-12 public schools, according to gao’s analysis of department of education national civil rights data for school year 2013–14, the most recent available. these disparities were widespread and persisted regardless of the type of disciplinary action, level of school poverty, or type of public school attended. for example, black students accounted for 15.5 percent of all public school students but represented about 39 percent of students suspended from school—an overrepresentation of about 23 percentage points. u.s. gov’t accountability office, gao-18-258, k-12 education discipline disparities for black students, boys, and students with disabilities 1 (2018). no. 2:265] disability in school incarceration 279 three main federal laws exist to protect children with disabilities: section 504 of the rehabilitation act of 1973,36 a 2008 amendment to the ada,37 and the idea.38 all state that children with disabilities have the same right to a “free appropriate public education” as any other child.39 because the idea contains the most common disability protections invoked on behalf of students in k-12 education—and includes several critical nodes of discretion that particularly impact students in under-resourced and highly criminalized schools— its impact is worthy of scrutiny.40 prior to 1975 under the idea’s predecessor, the education for all handicapped children act (eahca),41 many states (although not all)42 routinely denied over eight million children with disabilities an appropriate public education.43 the 36 29 u.s.c. § 701 (2018). 37 42 u.s.c. § 12101 (2018). 38 20 u.s.c. § 1400 (2018). 39 20 u.s.c. § 1401(9) (2018). notably, many students in poor schools do not receive an “appropriate” education, regardless of whether they have a disability. see jonathan kozol, savage inequalities: children in america’s schools (1992). 40 the most recent supreme court case to examine the idea was endrew f. ex rel. joseph f. v. douglas cty. sch. dist. re–1, 137 s. ct. 988 (2017). there, in a unanimous decision of eight justices, the court ruled that a higher standard of education for children with disabilities should exist than was previously utilized. see id. at 1001. nevertheless, the decision still left discretion to schools in implementing this standard. see id. for further discussion of the latest developments in the supreme court’s treatment of special education law, see bagenstos, supra note 5. 41 20 u.s.c. §§ 1400–1485 (supp. iv 1986). 42 ruth colker, disabled education 17 (2013) (explaining that as early as 1911, some states, especially those in the northeast, had laws on the books requiring schools to educate children with disabilities, although enforcement of those laws “was generally ineffective”). in addition, disability advocates thomas gallaudet and samuel howe created schools for the deaf and blind as well as for some intellectually disabled children. id. at 18. those schools did not cater to all children with disabilities. id. 43 in fact, students with certain disabilities were denied any education at all in some cases. see id. at 18 (discussing wisconsin’s exclusion of merritt beattie from its public schools). prior to section 504 of the 1973 rehabilitation act, in many states, neither federal, state, nor local law protected people with disabilities from discrimination. in language that mirrors the civil rights act of 1964 and title ix of 1972, section 504 protects people with disabilities from discrimination by state agencies receiving federal funds, including public schools. 29 u.s.c. § 794 (2018). 280 columbia journal of race and law [vol. 9:2 federal government merely provided a patchwork of small grants to states for educating some children with disabilities, primarily those deemed deaf or “mentally retarded.”44 congress’s intention in 1975 in enacting the idea was to ensure that children with disabilities have their educational rights safeguarded with a dense thicket of procedural protections.45 the procedures and legal schematic were intended to ensure that parents of students with disabilities have enforceable opportunities to participate in all aspects of educational decision-making for their child.46 in fact, the core of the schematic is the “due process hearing” used to resolve special education disputes.47 the hearing was deliberately created to curtail the previously unfettered discretion of school administrators in educating (or failing to educate) students with disabilities.48 the idea requires public schools to make available to all eligible children with disabilities a free, appropriate public education in the least restrictive environment available to the child’s educational needs.49 under the law, state and local departments of education are provided with federal financial assistance intended to guarantee special education and related services to eligible children ages three to twenty-one with disabilities.50 the requirement that public school systems must develop appropriate “individualized education programs” (ieps) for each eligible child is at the idea’s core. the specific 44 see colker, supra note 42, at 23. the use of the word “retarded” is no longer generally accepted as the proper way to describe a mental disability by the disability community. however, because it was a medical term for a very long time, some legal and medical sources still employ this language. 45 id. at 27. 46 dean hill rivkin, decriminalizing students with disabilities, 54 n.y.l. sch. l. rev. 909, 912, 952 (2010) (describing the history and intentions of the idea, the cases that have shaped its interpretation, its part in the pipeline, and suggesting the case of chris l. as a “beacon of reform”). 47 id. at 912. 48 see id. at 912 n.17. as noted, case law had allowed for unbridled discretion by school officials. see, e.g., pennhurst state sch. & hosp. v. halderman, 451 u.s. 1 (1981) (limiting the substantive rights of the disabled under the bill of rights of the developmentally disabled and bill of rights act); mills v. bd. of educ., 348 f. supp. 866 (d.d.c. 1972) (ruling in favor of disabled children who the defendants had excluded from the public schools of washington, d.c.). 49 20 u.s.c. § 1412 (2018). 50 id. no. 2:265] disability in school incarceration 281 special education and related services outlined in each iep are intended to reflect the individualized needs of students with disabilities.51 despite the idea’s attempt to install procedural protections for students with disabilities, critics have demonstrated how the idea’s regime of rights is inefficient and impedes collaborative decision-making between schools and parents.52 those critics suggest that contradictory goals are embedded within the idea, given that enforcement often requires litigation on behalf of students already facing challenges due to their disabilities.53 academics also point out the limits of due process for parents who have little agency.54 additionally, scholars have criticized the courts for their failure to serve as sufficient judicial checks in instances where the idea was unjustly invoked.55 furthermore, in public discourse, the iep has been labeled a “charade” and “one of the 51 id. § (a)(4). the idea also establishes procedures that must be followed in the development of the iep. importantly, for example, the idea requires the participation of various interested parties, mandating that each student’s iep be developed by a team of knowledgeable persons that includes the child’s teacher(s) and parents (or educational guardian), subject to certain limited exceptions. 20 u.s.c. § 1414(d)(1)(b) (2018). this review should, ideally, be held annually by the same team as was present at the original meeting. see id. § (1)(a)(iv). subject to review, exceptions include the child, if determined appropriate; an education agency representative who is qualified to provide or supervise the provision of special education; and other individuals at the parents’ or agency’s discretion. see nat’l ctr. for learning disabilities, idea parent guide 36 (2006). 52 the idea gives parents considerable due process rights and significant responsibilities beyond the initial development of their child’s iep. if parents disagree with the proposed iep, they can request a due process hearing and, if available, a review from the state educational agency. parents can also appeal the state agency’s decision to state or federal court. hill rivkin, supra note 46, at 913 (citing david neal & david l. kirp, the allure of legalization reconsidered: the case of special education, 48 law & contemp. probs. 63, 79 (1985)). 53 see hill rivkin, supra note 46, at 913 (citing martha minow, making all the difference: inclusion, exclusion, and american law 35–39, 350–72 (2d prtg. 1991)). note that “[i]n special education, parents often focus on relationships rather than rights.” id. at 913 n.21 (citing david m. engel, essay: law, culture, and children with disabilities: educational rights and the construction of difference, 1991 duke l.j. 166, 199 (1991)). 54 see, e.g., joel handler, the conditions of discretion: autonomy, community, bureaucracy 79 (1986); see also latoya baldwin clark, beyond bias: cultural capital in anti-discrimination law, 53 harv. c.r.c.l. l. rev. 381, 423–31 (2018). 55 see, e.g., hill rivkin, supra note 46. 282 columbia journal of race and law [vol. 9:2 greatest pitfalls of the country’s school system,” although it is a central component of the idea.56 lurking behind these objections is the sense that the idea is an incomplete law laced with discretion that has the potential for more harm than usefulness, as will be examined further.57 the precise problem that the idea sought to correct was the wholesale exclusion of millions of children with disabilities from receiving a public education, as well as the failure of school districts to provide an adequate education to four million more children with disabilities.58 the idea generally has been successful in correcting the above miseducation—a significant achievement in improving access to education. traditional explanations for racial disparities in education—in particular, black overrepresentation in the most stigmatized categories—focus on racial bias.59 this article builds on prior scholarship by seeking to uncover the structures behind the mask of a disability category. 56 traci thompson, the special-education charade, atlantic (jan. 3, 2016), https://www.theatlantic.com/education/archive/2016/01/thecharade-of-special-education-programs/421578/ [https://perma.cc/95qe-t5jh]. 57 see, e.g., yael cannon et al., a solution hiding in plain sight: special education and better outcomes for students with social, emotional, and behavioral challenges, 41 fordham urb. l.j. 403, 409–10 (2013) (“a substantial body of literature attempts to grapple with the challenges facing students with disabilities and advances various critiques of the idea, such as confusion surrounding determinations of eligibility for special education, disappointment with changes made in the 2004 reauthorization, [and] difficulties with enforcement . . . .” (footnotes omitted)). 58 see 20 u.s.c. § 1400 (2018). 59 yet, the problem of black disproportionality in the most stigmatizing categories of disability for the purposes of exclusion began long before the idea, starting with the advent of compulsory education in the early 1900’s. see colker, supra note 42, at 20. aptitude tests used today to identify intellectual competence emerged in the 1930’s and 1940’s to justify intellectual and moral deficit stereotypes of newly arrived eastern european immigrants and black people moving from the south to northern cities. see steven selden, inheriting shame: the story of eugenics and racism in america (1999); daria roithmayr, deconstructing the distinction between bias and merit, 85 calif. l. rev. 1449, 1488–91 (1997). these tests, normed on the experiences of white, native-born men, purported to show how the “inferior” black people and eastern european immigrants led to imbecility and feeble-mindedness. id. no. 2:265] disability in school incarceration 283 b. inequalities in the history of the idea in many ways, the current disproportionate use of certain disability categories for black and latinx students and the bias in the process of evaluating children for a disability are not surprising. the exact phenomenon was predicted at the inception of the idea.60 a brief look at the origins of the law reveals a fraught history, albeit one that still produced a law that was well-intentioned to address an aggrieved history in which people with disabilities were largely excluded from society. early disability activists in the 1920’s paved the way for special day schools for children who were deaf, blind, or intellectually impaired during a time when there was significant public skepticism about whether these children deserved any education at all.61 yet, these schools were not for all categories of children with disabilities; they excluded children in wheelchairs, those considered uneducable, and those with mental impairments who were then relegated to residential facilities that were later deemed deplorable and ineffective.62 simultaneous to this development, antipathy toward immigrants was rampant and an interest in intelligence testing was growing.63 intelligence testing has deep roots in reproducing racial hierarchy. as america absorbed millions of immigrants from europe, dr. carl brigham, the psychologist who invented the sat, held beliefs that as a white protestant, he was most refined and threatened by “infiltration” from others. brigham wrote that at the top of his racial hierarchy were nordics like himself and his peers, with “the negro” at the low end of the spectrum, and “the alpine and mediterranean races 60 colker, supra note 42, at 18. 61 id. 62 id. residential facilities are still in existence and many of them also continue to be ineffective; in california, the closure of many of these facilities has resulted in children sent out of state, which raises additional problems. see joaquin sapien, out of options, california ships hundreds of troubled children out of state, propublica (dec. 31, 2015), https://www. propublica.org/article/california-ships-hundreds-of-troubled-children-out-of -state [https://perma.cc/3rvm-3b4n]. 63 see colker, supra note 42, at 18–19. 284 columbia journal of race and law [vol. 9:2 [being] intellectually inferior to the representatives of the nordic race,” with jews particularly flawed and threatening.64 these views continued to become pervasive as schools began to engage in educational tracking (based on student performance) within the school system by using these assessments.65 ironically, this system was considered a progressive move to “‘best serve each child’s needs and talents’ rather than a racially based move to limit the educational and career opportunities for those considered best suited for the lowest track.”66 unfortunately, tracking became (and persists as) a structural mechanism to deprive students with disabilities, immigrants, and racial minorities from obtaining an adequate education.67 similarly, in the movement for compulsory education, scholars have posited that while the initial impetus for compulsory education was progressive, it was never about education equity. the public school system accommodated the “laggard” (sluggish) students by adapting a classification scheme and quality of education based upon the “long practices by juvenile reformatories,” specifically created for boys.68 while 64 id. at 19 (citing david b. tyack, the one best system: a history of american urban education 205 (1974)). 65 id. 66 id. (citing paula s. fass, outside in: minorities and the transformation of american education 53 (1989)). 67 see press release, u.s. dep’t of educ., u.s. department of education announces resolution of south orange-maplewood, n.j., school district civil rights investigation (oct. 28, 2014), https://www.ed.gov/ news/press-releases/us-department-education-announces-resolution-southorange-maplewood-nj-school-di [https://perma.cc/b7pt-txce] (citing tracking as a reason for racial disproportionality in academic programs). 68 colker, supra note 42, at 20. scholars, including ruth colker, have argued (somewhat controversially) that segregating students with disabilities from others in education is not always negative if students are white, whereas for immigrant students and students of color (and i would add, poor students), the outcomes are negative. ruth colker, the disability integration presumption: thirty years later, 154 u. pa. l. rev. 789, 811 n.86 (2006) (introducing the idea’s integration presumption rule). to be sure, professor colker says that she does not believe the idea’s integration presumption should be abandoned entirely, but she would reframe the presumption so that it merely requires that school districts provide an array of different settings for students with disabilities generally. see id. at 801 (“if a school district is offering a range of educational options to children with disabilities in learning, then an integration presumption is not warranted.” (footnote omitted)); see also samuel r. bagenstos, abolish the integration presumption? not yet, 156 u. pa. l. rev. online 789 (2007); daniel j. losen & kevin g. welner, disabling discrimination in our public schools: no. 2:265] disability in school incarceration 285 this classification system predates the school desegregation movement, it has deep roots in racial hierarchy, all of which are essential to the backdrop of the idea’s use of categories to define disabilities. when the topic of racial categories arose during the debates over crafting the idea (now fifty years ago), specific acknowledgement was given to the structures in place that were reproducing special education inequities for the poor and children of color with disabilities.69 for the poor, advocates raised issues of parent engagement and cost for services, and witnesses expressly acknowledged race in various testimonies.70 those comments are eerily similar to those comments made today about our current education system: “[t]he evaluation and screening process discriminates against [b]lack, puerto rican, minority and poor children . . . .”71 relevant to this analysis, witnesses also described their concerns with the labels placed upon students; they expressed concern that children would be misidentified as disabled, that ineffective teaching would occur in these spaces, and that a specific indication of the ineffectiveness or inaccuracy of these categories suggests that black children and other minorities were being placed in special education programs because “they deviate[d] from established norms.”72 others voiced concern over the overrepresentation of minority students in classes for the “mentally retarded.”73 perhaps the most astute observations about the potential of racializing disabilities came from professor oliver hurley, a special education faculty member at the university of georgia, who argued that special education has served to create a racialized underclass: comprehensive legal challenges to inappropriate and inadequate special education services for minority children, 36 harv. c.r.-c.l. l. rev. 407, 425 (2001) (discussing the states’ responsibilities regarding segregation of minority students with disabilities). 69 for a robust description of the hearings, see colker, supra note 42, at 26–29. 70 id. 71 education for all handicapped children, 1973–74: hearing on s. 6 before the subcomm. on the handicapped of the s. comm. on labor and public welfare, 93d cong. 44 (1973) (statement of carolyn heft, director, law reform unit, new york legal services, inc.). 72 see id. at 579. 73 see id. at 44. 286 columbia journal of race and law [vol. 9:2 [s]pecial education has become the tool of society’s efforts to maintain a surplus population. its labels are glib; they are neat; they are made to order for the purpose of institutionalizing racial, class, and economic prejudices. . . . . the labeling/placement process used in special education, i submit, is an institutionalized extension of society’s discriminatory responses to an outgroup, the black and brown minorities and the poor. . . . [labeling and placement has become] a smokescreen behind which our prejudices and biases could remain unchallenged, even unrecognized.74 surprisingly, the senate reports submitted in support of the idea expressed concerns with both race and class disparities and with the classification system itself, including the “misuse of identification procedures or methods which results in erroneous classification of a child as having a handicapping condition.”75 the reports then expressly recognize the “erroneous classification of poor, minority, and bilingual children.”76 nevertheless, while the senate heard significant testimony about the potential pitfalls and inadequacies of special education, especially for poor and minority children, it chose no mechanism to directly address the identified problem. the idea passed with its strengths and flaws, the latter of which is specific to the actual disability categories utilized.77 74 id. at 672, 676, 684. 75 s. rep. no. 94-168, at 26–27 (1975). 76 id. at 28. note that the senate reports made three suggestions. these mirror some of the same suggestions made under the obama administration regarding guidelines for states’ reporting under the idea. the current presidential administration has since gutted these guidelines. see moriah balingit, devos rescinds 72 guidance documents outlining rights for disabled students, wash. post (oct. 21, 2017), https://www. washingtonpost.com/news/education/wp/2017/10/21/devos-rescinds-72guidance-documents-outlining-rights-for-disabled-students/ [https://perma. cc/9vtn-5mdn]. 77 it is worth noting that in the wake of latinx v. board of education, some states, particularly southern states, also used special education classifications as a way to give the illusion of compliance with the law. racial inequity in special education, supra note 5. by slapping black children with special no. 2:265] disability in school incarceration 287 today, 6.4 million students in the u.s. are classified as needing special education.78 they make up thirteen percent of the nation’s k-12 enrollment.79 for many children with disabilities, classification as an idea-eligible student opens up access to extra services and support that can make the difference between graduating and dropping out.80 because of strict idea funding streams, acquiring a special education label also becomes the vehicle for students and educators to get help for challenging classroom situations—help that is cumbersome to obtain81 and may, ironically, stigmatize those challenges for the students who feel isolated.82 moreover, the education designations, schools could move them to classrooms separate from their white, general education classmates and still technically be running integrated schools. roslyn mickelson, a professor of sociology at the university of north carolina at charlotte, has called this kind of academic tracking “second-generation segregation.” roslyn arlin mickenslon, the academic consequences of desegregation and segregation: evidence from the charlottemecklenburg schools (aug. 15, 2002) (unpublished manuscript), https://civil rightsproject.ucla.edu/research/k-12-education/integration-and-diversity/theacademic-consequences-of-desegregation-and-segregation-evidence-from-thecharlotte-mecklenburg-schools/mickelson-academic-consequences-deseg regation.pdf [https://perma.cc/4jvg-g5h4]. 78 see fast facts: students with disabilities, nat’l ctr. for educ. stat., https://nces.ed.gov/fastfacts/display.asp?id=64 [https://perma.cc/j6 xf-vc3c]. 79 id. 80 for a thoughtful discussion of how resources can contribute to graduation, see sarah butrymowicz & jackie made, almost all students with disabilities are capable of graduating. here’s why they don’t., huffington post (nov. 4, 2017), https://www.huffpost.com/entry/specialeducation-series_n_59fb588ae4b0415a420a55a6 [https://perma.cc/j4fj-hv 8t]. 81 funds are allocated among states in accordance with a variety of factors, as outlined in the funding formula under section 611(d) of the idea. see programs: special education—grants to states, u.s. dep’t educ., https://www2.ed.gov/programs/osepgts/index.html [https://perma.cc/h6e6d6kz]; see also alessandra perna, note, breaking the cycle of burdensome and inefficient special education costs facing local school districts, 49 new eng. l. rev. 541, 544 (2015) (arguing that most, if not all, issues in special education law come down to “excessive, overly burdensome, and inefficient costs and a lack of funding” and generally describing the inefficiencies of the idea’s funding system). 82 in addition, while special education offers a gateway to services, the label of having a disability can be stigmatizing, particularly for culturally and linguistically diverse students. see beth harry & janette klinger, why are so many minority students in special education?: understanding race and disability in schools (2014) (documenting authors’ 288 columbia journal of race and law [vol. 9:2 idea enactors could have never rightfully anticipated the change in school security measures such as they exist today, where some schools are metaphorically “prison-like,”83 and the impact that this atmosphere has on the attribution and classification of disability. iii. hyper-surveillance in schools creates conducive environment for criminalizing disabilities a. surveillance in today’s under-resourced schools in many schools today, children face barbed wire, metal detectors, armed police, and now in the wake of recent school massacres, teachers with weapons in the classroom.84 schools are increasingly militarized. officials justify these measures on the grounds of protecting children from external threats as well as protecting staff and some favored groups of students from others.85 in this context, increasingly intense levels of surveillance are authorized. for both abled and disabled students, the practice of heavy surveillance creates a “culture of fear,”86 with an emphasis on maximizing security objectives four-year ethnographic research and firsthand accounts of experiences of children and their families navigating special education). 83 simmons, supra note 9. 84 see maryam ahranjani, the prisonization of america’s public schools, 45 hofstra l. rev. 1097 (2017). after a horrific school incident in south carolina in 2015, where a sheriff’s deputy slammed a young student to the ground, brittan packnett, a leader in the black lives matter movement who was also the executive director of the st. louis teach for america, said profoundly: “the first time a lot of [b]lack and [b]rown children experience police violence is in a school building. the first place that our children learn to fear police, learn they’re controlled instead of empowered, is in a school building . . . .” emma latinx, police in schools: keeping kids safe, or arresting them for no good reason?, wash. post (nov. 8, 2015), https://www.washingtonpost.com/local/education/police-in-schools-keepingkids-safe-or-arresting-them-for-no-good-reason/2015/11/08/937ddfd0-816c11e5-9afb-0c971f713d0c_story.html?utm_term=.db148afbac49 [https:// perma.cc/cj43-ak2y]. 85 for a thoughtful discussion, see jason nance, rethinking law enforcement officers in schools, 84 geo. wash. l. rev. arguendo 151 (2016). 86 at the intersection of this issue in a criminalized school is the role of media’s representation of youth crime, school discipline policies, and moral formation among adolescents. see sarah farmer, criminality of black youth in inner-city schools: “moral panic,” moral imagination, and moral no. 2:265] disability in school incarceration 289 and sidelining educational goals. when a child acts out or breaks a school rule, instead of being reprimanded by a teacher, the child is subject to detention and interrogation by armed police.87 most importantly, instead of being “disciplined” by an adult who is presumably trained at managing conflict among juveniles, the child is disciplined by school police.88 a growing body of literature draws attention to this phenomenon,89 putting into sharp relief the expanding nature of the surveillance and control of students in primary school settings by a variety of institutional actors.90 scholars have formation, 13 race ethnicity & educ. 367, 373, 374 (2010) (“the practice of surveillance and use of metal detectors make students an object of suspicion. a mentality of fear spread throughout the school, where teachers and students mistrust and act suspicious of students and peers.”). 87 see tierney sneed, school resource officers: safety priority or part of the problem?, u.s. news (jan. 30, 2015), https://www.usnews.com /news/articles/2015/01/30/are-school-resource-officers-part-of-the-school-toprison-pipeline-problem [https://perma.cc/dsd9-repc] (“[s]chool resource officers have become more involved in the basic discipline of children, stepping in where teachers previously would have handled low-level misbehavior.”); richard pérez-peña et al., rough student arrest puts spotlight on school police, n.y. times (oct. 28, 2015), https://www.nytimes.com/2015/10/29/us/ police-officers-in-schools.html [https://perma.cc/482n-ude2] (“experts on school safety say the line between security, the officers’ prime responsibility, and discipline, which administrators and teachers traditionally manage, has been blurred.”); vincent crivelli, mother of 10-year-old special needs child arrested says school not equipped for care, cbs12.com (apr. 13, 2017), http://cbs12.com/news/local/mother-of-10-year-old-special-needschild-arrested-calls-says-school-not-equipped-for-care [https://perma.cc/7ft6ansq] (documenting the experience of a mother who was forced to watch a school resource officer arrest her ten-year-old son). 88 lisa h. thurau & johanna wald, controlling partners: when law enforcement meets discipline in public schools, 54 n.y.l. sch. l. rev. 977, 979–80 (2010). 89 in this literature, surveillance and control are generally described as the misguided school resource officer, aggressive police officer, or heavyhanded school administrator utilizing coercive power to the detriment of student well-being. under this regime of extreme surveillance, normal student behavior does not lead to an in-school consequence; rather, the student is suspended, expelled, or sent to the juvenile justice or criminal justice systems. as previously mentioned, this phenomenon is often referred to in the literature as the “school-to-prison pipeline” (the pipeline). the pipeline is a metaphor education scholars and reformers rely on to describe unfairly funneling children out of classrooms and into the justice systems. johanna wald & daniel losen, defining and redirecting a school-to-prison pipeline, 99 new directions for youth dev. 9, 10 (2003). 90 see, e.g., aaron kupchik, homeroom security (2010); jason p. nance, students, police, and the school-to-prison pipeline, 93 wash. u. l. 290 columbia journal of race and law [vol. 9:2 examined the impact of more obvious forms of surveillance, such as the use of metal detectors and video surveillance.91 increasing attention is now being paid to the role of school resource officers, police who are specifically and permanently assigned to work inside the school.92 still others have questioned the accompanying shift toward criminally penalizing behaviors that, prior to this heightened sense of surveillance, were controlled by teachers and school administrators. in many instances, conduct like wearing perfume, doodling in class, or throwing candy at a student has subjected students to policeissued sanctions.93 as the literature demonstrates, the most rev. 919 (2016); see also kevin p. brady et al., school–police partnership effectiveness in urban schools: an analysis of new york city’s impact schools initiative, 39 educ. & urb. soc’y 455, 456 (2007); henry a. giroux, racial injustice and disposable youth in the age of zero tolerance, 16 int’l j. qualitative stud. educ. 553, 561 (2003) (highlighting the “litany of absurdities” that resulted out of school officials embracing strict enforcement of “zero-tolerance policies” in the 1990’s); paul j. hirschfield, preparing for prison? the criminalization of school discipline in the usa, 12 theoretical criminology 79, 82 (2008) (recognizing how, following the gun-free schools act of 1994, “a large majority of school districts . . . adopted ‘zero tolerance’ policies for alcohol, tobacco, drugs[,] and violence”). 91 see, e.g., abigail hankin et al., impacts of metal detector use in schools: insights from 15 years of research, 81 j. sch. health 100, 105 (2011) (analyzing the impact of school metal detectors on student and staff perceptions of school safety and concluding that “the use of metal detectors in schools is associated with lower levels of students’ perceptions of security in school and higher levels of school disorder”); bryan warnick, surveillance cameras in schools: an ethical analysis, 77 harv. educ. rev. 317 (2007) (examining the ethical issues and power dynamics raised by use of video surveillance compared with in-person surveillance). 92 one study has documented that a police officer’s regular presence at a school increases the predictive odds that school officials refer students to law enforcement for committing various offenses, including low-level offenses. see nance, supra note 90; see also nikole hannah-jones, taking freedom: yes, black america fears the police. here’s why., pac. standard (apr. 10, 2018), https://psmag.com/social-justice/why-black-america-fearsthe-police [https://perma.cc/z2lp-ejyu] (examining the way in which black communities react to police given the “historic role of policing in reinforcing racial inequality”). 93 hirschfield, supra note 90, at 80; see also therese edmiston, classroom to courtroom: how texas’s unique school-based ticketing practice turns students into criminals, burdens courts, and violates the eighth amendment, 17 tex. j. on c.l. & c.r. 181 (2012) (examining schools’ use of misdemeanor tickets to regulate student behavior issues in texas and colorado and the negative and disproportionate impact of such regulation on students of color); donna st. george, judge steve teske seeks to keep kids with minor problems out of court, wash. post (oct. 17, 2011), https://www.washington no. 2:265] disability in school incarceration 291 harmful effects are felt by the most marginalized students, including those with disabilities.94 building on this foundation, the next section considers the relationship between hypersurveillance, the diagnosis of disability, and criminalization. b. impact of surveillance on black and latinx students and disability the critique prevalent in the literature points out that the lack of educational resources, increasingly harsh discipline, and overreliance on suspension and expulsion has produced a school-to-prison pipeline. while this metaphor has been useful in drawing attention to the role of certain educational policies in contributing to incarceration, this article suggests replacing the pipeline metaphor with one that captures how multiple practices interact to label black and latinx children as socially dangerous and as a group that requires greater and more severe intervention.95 instead, this article post.com/lifestyle/style/judge-steve-teske-seeks-to-keep-kids-with-minorproblems-out-of-court/2011/09/21/giqa1y8zsl_story.html?utm_term=.dc27 d4fcd0d6 [https://perma.cc/d3lr-mtns] (“i thought, ‘this is ridiculous,’ he says. ‘they weren’t delinquent kids.’ teske brought together educators, police and social service and mental health counselors, parents and students. after nine months, leaders settled on a new protocol for four misdemeanors: fights, disorderly conduct, disruption and failure to follow police instructions. now, instead of making arrests, police issue warnings for first offenders. repeat trouble means workshops or mediation. only then may a student land in court. for chronic offenders, a system of care is in place to help resolve underlying problems. school referrals to juvenile court fell more than 70 percent from 2003 to 2010.”). 94 on a broad level, education scholars daniel losen & gary orfield have connected students’ disabilities to disparate disciplinary outcomes and larger systemic issues such as poverty and racism. racial inequity in special education, supra note 5. more narrowly, mark weber examined issues related to the use of specific disability laws in the school context and their limited utility. it is widely documented that students with disabilities and in special education are grossly impacted by the highly punitive school discipline measures that lead to students’ formal suspensions and/or expulsions, particularly in poor or under-resourced schools. mark weber, the idea eligibility mess, 57 buff. l. rev. 83, 149–50 (2009). this is largely due to the criminalization of mere adolescent behavior, which may ensnarl children with disabilities at a high rate. 95 see rios, supra note 15, at 158 (2011) (“as i observed and interviewed them, i uncovered a youth control complex made up of punitive interactions between young people and authority figures, where punishment threaded itself into the fabric of everyday social life in an array of institutions; marginalized young men’s behaviors and styles were criminalized and 292 columbia journal of race and law [vol. 9:2 suggests that the formal and informal forms of surveillance function as a sticky web, rather than a pipeline, in which black and latinx children and their families are more likely to be watched, have their actions documented, and be categorized as deviant. surveillance includes formal measures (infrastructure, security personnel, and technology) as well as legal and bureaucratic practices (reporting requirements under the law that require frequent formal observation and assessment of children and their families).96 informal policing occurs through interactions between staff and students and some parents that reinforce and legitimize racialized perceptions. the result is a system that ensnares black and latinx students.97 thus, the school subjected them to shame, exclusion, punishment, and incarceration. this hypercriminalization [sic] of young people was composed of exclusion, punishment, racialization, gendered violence, harassment, surveillance, and detention by police, probation officers, teachers, community program workers, and even parents. this system shaped the ways in which young men developed worldviews about themselves and their social ecology.”). 96 this bureaucratic practice of surveillance includes the tenants under the idea that are examined in section v.a. however, this implicates larger issues like over-policing vulnerable communities. 97 the aclu published an extensive report on this issue in april 2017 and found: when adolescent behaviors are criminalized, students in policed schools may find themselves at greater risk of entanglement with the criminal justice system merely by virtue of attending school. for example, the san bernardino city unified school district, in california, makes more juvenile arrests than do municipal police in some of california’s largest cities, and 91 percent of these arrests are for misdemeanors like disorderly conduct. in the jefferson parish public school system, the largest in louisiana, the southern poverty law center found that the most common cause of student arrests was ‘interference with an educational facility.’ these findings are consistent with american bar association assessments of the juvenile justice systems in many states; the assessments found that school-based referrals and arrests had increased dramatically by the mid-2000s, with schools using the juvenile justice system as a ‘“dumping ground” for youth with special needs.’ in one north carolina county, a full ‘two-thirds of delinquency case complaints came from the public school system,’ and across the state, ‘[c]hildren as young as six and seven are referred to court for issues that seem clearly to relate to special education status.’ similarly, reviewers in maryland found that ‘in interviews, many law enforcement officials across several no. 2:265] disability in school incarceration 293 itself becomes a site where attribution of disability is disproportionately assigned to black and latinx children because they are subject to more frequent and harsher surveillance, and more surveillance is undertaken once they are categorized as disabled.98 children that are disabled are further negatively impacted in two ways. first, notwithstanding heightened surveillance, the needs of black and latinx children are often not accurately assessed. second, the web of surveillance practices produces negative psychological effects and increases disruptive behavior or disengagement by students already potentially marginalized due to their marginalized status (race, class, gender, gender identity, sexual orientation, language access skills, and/or immigration status). the web ensnarls many, resulting in students with disabilities suspended, expelled, and arrested at higher rates than their nondisabled peers99 counties reported a spike in juvenile arrests during the school year due to the presence of school resource officers.’ megan french-marcelin & sarah hinger, aclu, bullies in blue: the origins and consequences of school policing 17 (2017). 98 there have been numerous media reports of the dangers children in schools have faced. see david m. perry, a texas principal and the casual criminalization of race and disability in schools, pac. standard (may 8, 2018), https://psmag.com/education/principals-shouldnt-joke-about-violence against-their-students [https://perma.cc/5rxz-vptw] (“[a] houston-area principal at ponderosa elementary school was talking with three of her employees about a [black student with disabilities] who reportedly sometimes tries to leave the campus grounds. principal shanna swearingen (who is [w]hite) reportedly told the other staff that, next time, ‘we won’t chase him. we will call the police and tell them he has a gun so they can come faster.’”). 99 in a report based on 2013–14 statistics, the aclu found: u.s. department of education office for civil rights’ 2013–14 statistics show that, in california, the average arrest rate in schools where more than 80% of students are low-income is seven times higher than the average arrest rate in schools where fewer than 20% of students are lowincome. department of education statistics also show that although students with disabilities made up only 12% of student enrollment nationwide, they comprised 23% of police referrals, 23% of arrests, and 67% of students placed in physical restraint, seclusion, and confinement.” linnea nelson et al., the right to remain a student—how california school policies fail to protect and serve, aclu (aug. 24, 2017), https://www.aclunc 294 columbia journal of race and law [vol. 9:2 not because these students are more deserving of punishment, but because they may exhibit behaviors caused by disability that are criminalized in such an environment. for children with disabilities, who are more susceptible to abuse, school police surveillance and heavy metal apparatuses can have a more layered and long-lasting impact.100 these same students may already be isolated due to the stigma of their disability and put on edge by the need to deal with discrimination based on disabilities and possibly other marginalized identities. for students with one or more marginal identities, facing constant police surveillance and contact with school resource officers is likely to exacerbate their vulnerabilities and produce trauma symptoms.101 students with disabilities are about two times102 more likely than their nondisabled peers to be disciplined for various reasons, including a perception of criminality103 or sheer .org/publications/right-remain-student-how-ca-school-policies-fail-protect-andserve [https://perma.cc/ug68-y39f]. 100 the impact of police is likely to have particularly detrimental effects on students who have non-apparent disabilities. calero et al., supra note 33, at 10 (“students with non-apparent disabilities are particularly susceptible to being targeted by the school-to-prison pipeline—for many, the effects are compounding and result in enormous harm.”). in extreme cases, interactions between police and people with disabilities can result in serious injury or even death. a 2016 report found that up to half of all police killings were of those with a disability. rhonda fanning, half of people killed by police in the united states may have a disability, tex. standard (oct. 9, 2017), http://www.texasstandard.org/stories/half-ofpeople-killed-by-police-in-the-us-may-have-a-disability/ [https://perma. cc/q47t-8t8t]. 101 see matthew t. theriot, school resource officers and the criminalization of student behavior, 37 j. crim. just. 280, 286–87 (“as police and school security become more and more omnipresent at schools, school resource officers, teachers, principals, and all school staff need to be mindful of the negative consequences associated with punitive disciplinary strategies and criminal arrests. for most youth, especially those from lower socioeconomic neighborhoods, education is an invaluable resource to insure a brighter future. to deny them an education because of a minor classroom disturbance or hallway disruption is unacceptable, unfair, and may permanently limit their prospects for a better life.”); see also nelson et al., supra note 99. 102 courtney perkes, report: students with disabilities disciplined twice as often as peers, disability scoop (feb. 28, 2018), https://www. disabilityscoop.com/2018/02/28/report-disciplined-twice/24783/ [https:// perma.cc/7ghy-kak8]. 103 part v will examine this concept at length, but it is worth noting that behaviors of black and latinx children may be the result of a heightened, no. 2:265] disability in school incarceration 295 lack of police training104 on how to appropriately respond to behaviors resulting from a disability. the perception of black and latinx children as “criminal” by virtue of teacher or administrator bias is documented.105 this has psychological and physical consequences for children—particularly those with disabilities. while difficult to mark with great precision, the actual process of marking a black or latinx student with a disability happens well before the first formal legal step in the legal process. the next section examines the inaccurate attribution of disability to black and latinx youth based on perceptions of the tense environment of hyper-surveillance or “stereotype threat” that, in turn, likely impacts adolescent behavior in the school space. farmer, supra note 86, at 374. stereotype threat is “the threat of being viewed through the lens of a negative stereotype or the fear of doing something that would inadvertently confirm that stereotype.” id. (citing claude steel, stereotype threat and african-american student achievement, in young, gifted, and black: promoting high achievement among african-american students 109, 111 (2003)). 104 “according to a 2013 state-by-state survey of police officer training standards, police academies in the u.s. spend only one percent of training hours, on average, on youth issues. most of that time is spent on helping police recruits understand juvenile law, not on practical skills for working with kids.” jonah newman, trauma of witnessing police violence is not lost on children, chi. rep. (aug. 22, 2016) (citing strategies for youth, if not now, when?: a survey of juvenile justice training in america’s police academies (johanna wald ed., 2013)), https://www.chicagoreporter. com/trauma-of-witnessing-police-violence-is-not-lost-on-children [https:// perma.cc/zj3d-kugn]. lisa thurau, the executive director of strategies for youth, which conducted the survey, stated the following: “we don’t prepare our officers very well for positive interactions with youth . . . . many of the practices that police use, which involve intimidation or threat of force, actually increase (future) juvenile offending.” id. 105 see, e.g., bill hathaway, implicit bias may help explain high preschool expulsion rates for black children, yalenews (sept. 27, 2016), https://news.yale.edu/2016/09/27/implicit-bias-may-explain-high-preschoolexpulsion-rates-black-children [https://perma.cc/c4lk-eg78] (“findings suggested that when the preschool teacher and child were of the same race, knowing about family stressors led to increased teacher empathy for the preschooler and decreased how severe the behaviors appeared to the teacher. but, when the teacher and child were of a different race, the same family information seemed to overwhelm the teachers and the behaviors were perceived as being more severe.”); see also kris henning, criminalizing normal adolescent behavior, 98 cornell l. rev. 383, 460 (2013) (drawing from contemporary research on implicit bias, contends that contemporary narratives portraying youth of color as dangerous, irredeemable, and older fuels pervasive fear of the youth that impacts prosecutors’ rejection of developmental immaturity as a mitigating factors). 296 columbia journal of race and law [vol. 9:2 students’ behavior by a school teacher, administrator, or counselor. such a process is necessarily the playground for implicit biases, as is discussed below. iv. attribution of disability to student pre-idea identification for black and latinx students, the attribution of criminality—not yet disability—may have happened earlier and by virtue of their very existence. in the new jim crow, michelle alexander suggests that for black youth, their attribution of criminality has already happened in collective society.106 while alexander references the practices of policing on the streets, the system of policing black children in schools is equally prevalent and equally infected by social and racial biases. scholars have documented how black boys,107 latinx boys,108 and black 106 alexander writes: [w]hat it means to be a criminal in our collective consciousness has become conflated with what it means to be [b]lack . . . . . . . . for [b]lack youth, the experience of being ‘made [b]lack’ often begins with the first police stop, interrogation, search, or arrest. the experience carries social meaning—this is what it means to be [b]lack. . . . . . . . for the [racial caste] system to succeed . . . [b]lack [youth] must be labeled criminals before they are formally subject to control. . . . this process of being made a criminal is, to a large extent, the process of ‘becoming’ [b]lack.” michelle alexander, the new jim crow: mass incarceration in the age of colorblindness 198–200 (rev. ed. 2012). 107 see phillip atiba goff et al., the essence of innocence: consequence of dehumanizing black children, 106 j. personality & soc. psychol. 526, 526 (2014) (finding “converging evidence that black boys are seen as older and less innocent and that they prompt a less essential conception of childhood than do their white same-age peers. . . . [and] demonstrat[ing] that the black/ape association predicted actual racial disparities in police violence toward children.”); see also farmer, supra note 86, at 374. 108 see rios, supra note 15 (examining the manifestation and consequences of hyper-criminalization of black and latinx boys and finding that the interplay of social forces that constructed their sense of selves and reality pushed them into a criminalized state). no. 2:265] disability in school incarceration 297 girls109 are perceived by the general population as older than their actual age, less innocent, less childlike and, therefore, more culpable. this perception may contribute to more punitive exercises of discretion,110 greater uses of force, and harsher penalties for black children imposed by those in authority.111 though fewer studies have examined the way latinx children and those with linguistic differences are perceived, there have been a few that document bias against latinx girls in the system that demonstrate they are equally stereotyped.112 thus, black and latinx children marked with a disability in school have an added vulnerability layered on top of a misperception that they are deviant or, at worst, criminal. 109 we know females of color are more likely to be criminalized as was first examined by dorothy e. roberts, unshackling black motherhood, 95 mich. l. rev. 938, 948 (1997) (“despite similar rates of substance abuse, however, black women were ten times more likely than [w]hites to be reported to government authorities [in the 1990’s]. both public health facilities and private doctors were more inclined to turn in black women than [w]hite women for using drugs while pregnant. just as important as this structural bias against black women is the ideological bias against them. prosecutors and judges are predisposed to punish black crack addicts because of a popular image promoted by the media during the late 1980s and early 1990s.” (footnotes omitted)). see also kimberlé crenshaw et al., african am. policy forum, black girls matter: pushed out, overpoliced, and underprotected 29 (2016) (finding that society’s deeply entrenched expectations of black girls—influenced by racism and patriarchy—has led to a ritual whereby these young women are often mischaracterized and mislabeled because of how they look, dress, speak, and act; black girls are devalued based on how others perceive them). 110 see jyoti nanda, blind discretion: girls of color and delinquency in the juvenile justice system, 59 ucla l. rev. 1502, 1531 (2012). 111 see rebecca epstein et al., georgetown univ. law ctr.— ctr. on poverty & inequality, girlhood interrupted: the erasure of black girls’ childhood 8 (2017) (“across all age ranges, participants viewed black girls collectively as more adult than [w]hite girls. responses revealed, in particular, that participants perceived black girls as needing less protection and nurturing than [w]hite girls . . . .”). 112 see jody miller, an examination of disposition decision-making for delinquent girls, in race, gender, and class in criminology: the intersections 219, 239 (martin d. schwartz & dragan milovanovic eds., 1999) (reporting that a study of 244 los angeles county probation reports revealed that there was a more “paternalistic” discursive framework when describing the behavior of white and latinx girls and that, in contrast, more punitive constructs described african american girls); see also anthony a. peguero & zahra shekarkhar, latino/a student misbehavior and school punishment, 33 hispanic j. behav. sci. 54, 65 (2011) (finding that latinx youth face a number of educational hurdles, such as disproportionate school punishment). 298 columbia journal of race and law [vol. 9:2 these children must now navigate through a landscape that reinforces multidimensional stereotypes and debilitating narratives that negatively influence how their race, culture, linguistic difference, gender, and disability are understood. implicit racial and gender biases may also inform how we read the behaviors and actions of black and latinx children. all of this comes together to guide their disability identification and subsequent treatment. nirmala erevelles suggests that this is part of a larger process when she writes that “the simultaneous process of ‘becoming black’ and ‘becoming disabled’ described uncritically as ‘natural’ deviance foregrounds a complex intersectional politics of race, class, and disability . . . .”113 the idea also operates here in ways that allow for racialized attribution given its inherently subjective nodes that, when combined with bias, can result in an incorrect diagnosis. identifying students with a disability is largely a highly subjective process from start to finish, with discretion built into each step. this discretion allows for bias to influence each step of the multilayered process as disability is constructed in ways that are both obvious and unassuming. the idea is first triggered when a teacher or administrator makes a subjective determination to seek a special education evaluation; after this referral, a psychologist conducts a formal evaluation. under the idea, schools have an affirmative obligation, called “child find,” to identify, locate, and evaluate all children with disabilities who require special education in the state.114 this is not limited to instances in which a parent or guardian has informed the school of a possible disability and need for services, but instead encompasses instances in which school teachers and administrators perform this task by 113 nirmala erevelles, crippin’ jim crow: disability, dis-location, and the school-to-prison pipeline, in disability incarcerated: imprisonment and disability in the united states and canada 81, 88 (liat ben-moshe et al. eds., 2014). 114 see 20 u.s.c. § 1412(a)(3)(a) (2018) (“all children with disabilities residing in the state, including children with disabilities who are homeless children or are wards of the state and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.”). for further discussion, see cannon et al., supra note 57, at 426–47. see generally perry a. zirkel, child find, 2015 principal 50 (discussing legal issues related to child find). no. 2:265] disability in school incarceration 299 observing a student’s behaviors and performance.115 therefore, subjective determinations about whether a student’s behavior or performance is out of the ordinary is a determination made by a teacher or administrator. however, research on disproportionality is limited given that data does not exist on whether the underlying disability is properly identified.116 for students of color, the attribution process may happen too quickly—a teacher’s rash determination. alternatively, it may happen too slowly—a teacher ignores or misreads a possible behavioral or learning impairment as what is to be expected from black and latinx children. though there are a multitude of outcomes, it is likely that attribution of a disability for a black or latinx student happens or fails to happen during one or more of these scenarios: 1. student repeatedly misbehaves in class à via lens of typically deviant à no attribution, possible disability undiagnosed. 2. student repeatedly misbehaves in class à via lens of likely troubled à attribution, suspected disability, although may be inaccurate. 3. student continuously performs well below standard à via a lens of normal expectations 115 see cannon et al., supra note 57, at 427; see also zirkel, supra note 114, at 2. 116 amanda l. sullivan, wading through quicksand: making sense of minority disproportionality in identification of emotional disturbance, 43 behav. disorders 244, 246 (2017) (“[m]any scholars are concerned that special education services may not be beneficial for many cld [culturally or linguistically diverse] students, particularly those identified with disabilities for which validity and accuracy of identification is questioned. these assumptions are especially relevant because little of the disproportionality research allows for determination of the appropriateness of the identification studied. as a consequence, scholars often extrapolate from research in related fields of education and the broader social sciences, but the varied findings throughout contribute to contradictory inferences regarding special education needs and identification.” (citations omitted)). analogizing here to the theories posited around causes for racial disparities in school discipline is one alternative explanation. educators have argued that poverty, low achievement, and rates of misconduct among students of color are not sufficient to explain the discipline disparities along racial lines and that the “school and teacher contributors” should be further examined. anne gregory et al., the achievement gap and the discipline gap: two sides of the same coin?, 39 educ. researcher 59, 59 (2010); see also kimberlé crenshaw et al., supra note 109; nanda, supra note 110. 300 columbia journal of race and law [vol. 9:2 à attribution, suspected disability, although may be inaccurate. 4. student continuously performs well below standards à via a lens of low expectations à no attribution, possible disability undiagnosed. thus, at this first stage, no formal assessment has been made and the outcome for students with or without disabilities is still preliminary.117 situated in hyper-surveilled schools and coming from overpoliced neighborhoods, the children encounter a primary node of the attribution process—teachers. teachers in these same schools (often with minority-majority populations) are not themselves racially or ethnically reflective of the students they teach and thus are impacted by and react to prevailing social stereotypes about black children. implicit bias, we know from numerous studies, impacts the way teachers generally interact with students, even as young as preschool, and may contribute to the racial disparity in discipline.118 in a wellrespected study conducted by the yale child study center, researchers used sophisticated eye-tracking technology and found that preschool teachers “show a tendency to more closely observe [b]lack students, and especially boys, when challenging behaviors are expected.”119 at the same time, the study found that black teachers hold black students to a higher standard of behavior than their white counterparts and speculated that it may be based on a tough love view that because a tough world awaits them, they deserve harsh assessment. 117 it is important to acknowledge the setting in which the process of attributing a child with a disability occurs: under-resourced schools with a student population that is largely black, latinx, and poor and that is heavily policed both formally (heavy security apparatus, presence of armed police officers) and informally (zero tolerance policies, strict behavior guidelines) in ways that are often inconsistent with their white peers. moreover, these students are more likely to have challenging experiences and exposure to traumatic events that are often symptomatic of growing up in poor, urban neighborhoods with heavy policing, an absence of services, and poverty. 118 see hathaway, supra note 105 (“‘the tendency to base classroom observation on the gender and race of the child may explain in part why those children are more frequently identified as misbehaving and hence why there is a racial disparity in discipline,’ added walter s. gilliam, director of the edward zigler center in child development and social policy and associate professor of child psychiatry and psychology at the yale child study center.”). 119 id. no. 2:265] disability in school incarceration 301 the researchers suspected that white educators, by contrast, may be acting on stereotypes that black preschoolers are more likely to misbehave in the first place, and so they judge them against a different standard than that which they are applying to white children.120 remarkably, the same study also found that “when the preschool teacher and child were of the same race, knowing about family stressors led to increased teacher empathy for the preschooler and decreased how severe the behaviors appeared to the teacher. but, when the teacher and child were of a different race, the same family information seemed to overwhelm the teachers and the behaviors were perceived as being more severe.”121 such “severe” behaviors are likely to either end in a referral to discipline or disability assessment. thus, teacher bias, teacher expectation of the student, teacher race, and student race and gender are all part of the extralegal determination that happens when student behavior is read or misread and attributed as a disability. one process of attribution that occurs when a teacher views the behavior(s) of a black or latinx child as deviant, possibly lacking impulse control and therefore likely to have a disability, is troubling. this process—being labeled disabled for normal adolescent behavior—is a variation of police profiling of black and latinx communities in that normal behavior (a young black boy mowing a lawn, for example) is perceived by white neighbors as a child who does not belong and is thereby acting criminally.122 a second process is when a teacher may find the misbehavior or outburst of a child as unremarkable given their 120 rebecca klein, teachers expect less from black and latino students, huffington post (oct. 7, 2014), https://www.huffingtonpost.com/ 2014/10/07/pygmalion-effect-study_n_5942666.html [https://perma.cc/49fa rpr2] (“researchers found that students whose teachers expected them to graduate from college were significantly more likely to do so. but teachers had lower expectations for disadvantaged students and students of color, the researchers found. teachers thought a college degree was 47 percent less likely for african-american students than for [w]hite peers, and 53 percent less likely for low-income students than for students from more affluent families. teachers thought [latinx] students were 42 percent less likely than [w]hite students to graduate from college, the study found.”). 121 hathaway, supra note 105. 122 kristin n. henning, the reasonable black child: race, adolescence, and reasonable articulable suspicion, 67 am. u. l. rev. 1513 (2018). 302 columbia journal of race and law [vol. 9:2 bias for the ways in which black and latinx children act combined with a sense of low expectations.123 that is, they may ignore impulsive behavior or write it off as typical of black or latinx children while not viewing their poor or struggling behavior in school as suspicious or worthy of further examination. this is the deficit-model way of examining behavior; the student’s behavior and poor performance do not trigger a full evaluation by the teacher because the teacher does not expect much from the student. these lower expectations may directly correlate to the fact that studies have repeatedly found that “[a]mong children displaying the same clinical needs, [w]hite children are more likely to receive special education services than racial or ethnic minority children.”124 disability lawyers are all too familiar with how this attribution process happens in ways that are harmful to black and latinx children but unable to be addressed by law. the subsequent scenarios are all based on real cases: 1. student has a short attention span and, as a result, disrupts the classroom. julie, the teacher, has heard from her colleagues and others that black children lack impulse control. due to this perception, julie assumes that student is “acting out” and lacks the ability to control themselves. accordingly, julie invokes the discipline policies such that student is suspended from school.125 2. student has a short attention span and, as a result, disrupts the classroom. the school undertakes its own evaluation and disregards 123 evie blad, teachers’ lower expectations for black students may become ‘self fulfilling prophecies,’ study finds, educationnext (aug. 10, 2016), http://blogs.edweek.org/edweek/rulesforengagement/2017/10/ teachers_lower_expectations_for_black_students_may_become_self-fulfilling_ prophecies_researchers_say.html [https://perma.cc/2avg-cfh4]. 124 paul l. morgan & george farkas, the wrong and right ways to ensure equity in idea, educationnext (aug. 10, 2016), https://www. educationnext.org/the-wrong-and-right-ways-ensure-equity-idea/ [https:// perma.cc/8qdv-sbz4] (“in addition to being repeatedly replicated, our findings also are consistent with those reported by public health researchers. these researchers also find that [w]hite children are more likely than otherwise similar minority children to receive treatment for disabilities.”). 125 arlene b. mayerson, ending the school-to-prison-pipeline, disability rts. educ. & def. fund, https://dredf.org/news/publications/ ending-school-prison-pipeline/ [https://perma.cc/2ydv-mcfh]. no. 2:265] disability in school incarceration 303 mother’s evaluation that student has multiple learning disabilities—both adhd and sld. despite student’s poor academic progress (failing all subjects except for physical education) and impulse behaviors, the school disregards the adhd and sld diagnosis and concludes that student was merely being defiant and oppositional.126 once a child is identified, they must receive an evaluation to determine whether they have a disability and what accommodations are appropriate for ensuring that they receive a “free appropriate public education,” or “fape.”127 an evaluation must occur for every suspected area of disability.128 these evaluations must be done at public expense, and, further, if a parent or guardian disagrees with the outcome of the school’s evaluation, they are entitled to another outside evaluation at public expense.129 if a student is identified as having a disability, they are entitled to a comprehensive evaluation at least every three years to ensure that diagnoses continue to be accurate and accommodations continue to be appropriate.130 what is 126 the attorney in this case attributed the failure to identify the disabilities here to implicit bias against black boys in that there were low expectations of the child. due to a learning disability and adhd, the student did not understand teacher instructions; this, coupled with his attention span of a few minutes, resulted in displays of lack of impulse control. as a result, the student was suspended multiple times and was recommended for expulsion until a special education advocate stepped in to assert the child’s federal special education rights. see complaint, east count naacp v. antioch unified sch. dist., no. c16-01297 (july 6, 2016). 127 the idea defines fape as “special education and related services that (a) have been provided at public expense, under public supervision and direction, and without charge; (b) meet the standards of the state educational agency; (c) include an appropriate preschool, elementary school, or secondary school education in the state involved; and (d) are provided in conformity with the individualized education program required under section 1414(d) of this title.” 20 u.s.c. § 1401(9) (2018). 128 see 20 u.s.c. § 1414(b)(3)(b) (2018); see also kalvesmaki & tulman, supra note 10, at 181 (discussing the rights of students’ parents in the evaluation process). 129 34 c.f.r. § 300.502(b) (2018); see also baldwin clark, supra note 54 (discussing the role of social capital and its interplay with parents’ ability to navigate the idea process). for a thorough discussion of this requirement, see cannon et al., supra note 57, at 428; and kalvesmaki & tulman, supra note 10, at 181. 130 20 u.s.c. § 1414(a)(2)(b)(ii) (2018). 304 columbia journal of race and law [vol. 9:2 also relevant but outside the scope of this article is the role of the psychologist in the evaluation itself131 and the variance of a student having multiple disabilities.132 after performing the evaluation, the school must make a determination of whether the student is eligible for services under the idea.133 there is a two-pronged test for determining eligibility: (1) the student must experience at least one of the thirteen disabilities listed in the idea,134 and (2) the student must, as a result of that or those disability(ies), need special education in order to make progress in school.135 a team of qualified professionals must consult with the student’s family to determine whether the child is eligible under the idea, and factors to be considered include relevant functional, developmental, and academic information and any additional infor 131 diagnosis itself is a subjective act performed by people in authority who have their own implicit biases and should, in another setting, be analyzed for its role in perpetuating the burdens placed upon the shoulders of children of color with and without disabilities. see daniel a. albert et al., reasoning in medicine: an introduction to clinical inference 181–83 (1988) (“[d]iagnosis is the name for the process the clinician goes through to arrive at a conclusion about the state of health of a patient. diagnosis, in this sense, is something the clinician does. it is an activity or action (making a diagnosis, or diagnosing). as such, it can be done well or poorly, hastily or carefully. . . . diagnosis in the second sense refers to the outcome of the diagnostic process. the clinician typically declares that the patient ‘has’ such and such disease or diseases—that the features displayed by the patient can be fit into one or more of the diagnostic categories. such a declaration is often qualified by an accompanying estimate of how likely it is that the category identified is the correct one. . . . diagnosis in the second sense involves a labeling of the patient. . . . [a]t first view, it may seem that the diagnostic label alone is simultaneously a classification, an explanation, and a prognosis. in fact, the diagnostic label is no more than the tip of the diagnostic iceberg. floating beneath the surface is the body of information and theory that give the label its meaning and significance.”). 132 below, this article focuses on the extralegal or subjective determinations made by teachers that end up both over-, under-, and/or misidentifying black and latinx students with a disability in a school environment that is hyper-surveilled. 133 nat’l ctr. for learning disabilities, supra note 51, at 32. 134 these categories are: specific learning disability, other health impairment, autism spectrum disorder, emotional disturbance, speech or language impairment, visual impairment (including blindness), deafness, hearing impairment, deaf-blindness, orthopedic impairment, intellectual disability, traumatic brain injury, and multiple disabilities. 135 nat’l ctr. for learning disabilities, supra note 51, at 32. no. 2:265] disability in school incarceration 305 mation provided by the family.136 more than one measure or assessment must be considered when making this determination.137 here too, as professor latoya baldwin clark points out, the process of evaluating students or attributing a disability is influenced not only by race and class, but also by the parent’s social capital or agency in the process.138 once a child is determined to be eligible for services under the idea, the school and family work together to create an “individualized education program” (iep).139 this document must outline both the services that the school is obligated to provide and the outcomes that are expected of the student.140 further, the idea requires ieps to include a robust list of specific sections, including a statement of the child’s current performance and functioning; measurable annual goals; a statement of how progress towards these goals will be measured; a statement of services the student is to receive from the school; a statement of where and how these services will be delivered in the least restrictive environment possible; and, beginning at age sixteen, measurable postsecondary goals and a plan for meeting them.141 the iep is the foundation of the special education services that the child then receives to ensure that they receive a fape; therefore, its accuracy is extremely important to the child’s eventual success. formally, it is the final step in this idea evaluation but one that is ongoing and also subject to the same teacher biases and further surveillance. currently, the surveillance142 monitors the role 136 20 u.s.c. § 1414(d)(1)(b)(i) (2018); see also nat’l ctr. for learning disabilities, supra note 51, at 32. 137 nat’l ctr. for learning disabilities, supra note 51, at 32. 138 baldwin clark, supra note 54, at 381. 139 20 u.s.c. § 1414(b)(2)(a); see also cannon et al., supra note 57, at 448 (“the idea requires that an iep be developed for every student with a disability who is identified as eligible to receive services.”). 140 see generally 20 u.s.c. § 1414(d). 141 see generally id. for further discussion, see cannon et al., supra note 57, at 449. 142 in a future article, the author plans to examine how the lives of children and parents are scrutinized and subject to a form of informal policing as part of the process by which iep plans are determined. beautifully described by a parent journalist, iep meetings are a “cross between a legal deposition and a committee meeting.” thompson, supra note 56. the questioning of family life (poverty, class) are also forms of intrusion that are not necessary. alternative ways of thinking about the special education identification process are beyond the scope of this article. for a discussion about 306 columbia journal of race and law [vol. 9:2 of parents, guardians, and family. parents and guardians are considered an important part of the ieps. cooperation from parents is critical and may require parents and guardians to share details of their personal lives to a team of school officials. this process is often frustrating for even the most involved parents, and ieps have been referred to as the “special-education charade” given the cumbersome, lengthy, and arguably ineffective process.143 the criminalization of disabilities, thus, can occur before or at the referral process and is further reinforced by the disparate ways in which “similarly situated students of different races are treated differently.”144 part v lays out how the attribution process—entangled with extralegal influences (e.g., teacher bias, nebulous disability categories) in a school site with a web of surveillance—influences the manner in which some students are placed in certain cognizable disability categories. as a result, significant racial disproportionality emerges. this article argues that what is seen as racial disparity is actually a form of racial stratification that leads to the criminalization of black and latinx students. one such alternative, see lynn fuchs & douglas fuchs, treatment validity: a unifying concept for reconceptualizing the identification of learning disabilities, 13 learning disabilities res. & prac. 204 (1998) (proposing a four-phase eligibility assessment process). 143 for a firsthand account from a parent involved in this process, see thompson, supra note 56 (discussing thompson’s perspective as the parent of a child who is deemed twice-exceptional, a term which refers to children who are both gifted and have a learning disability); see also emily williams king, addressing the social and emotional needs of twiceexceptional children, 38 teaching exceptional children 16, 17 (2005). 144 office for civil rights, u.s. dep’t of educ., dear colleague letter: preventing racial discrimination in special education 11 (2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201612racedisc-special-education.pdf [https://perma.cc/b5ya-vz97]. the office of civil rights has reported: for example, district staff may refer only latin[x] and [b]lack students for evaluation, while not referring [w]hite students in the same class with similar behavior and academic records. alternatively, district staff may fail to refer latin[x] or [b]lack students who are experiencing behavioral and academic difficulties that might be related to disability while referring [w]hite students with similar behavior and academic records in the same class. id. no. 2:265] disability in school incarceration 307 v. racial disparities as racial stratification of children with disabilities a. the role of subjectivity in the law in categorizing black and latinx students with a disability the overrepresentation145 and underrepresentation146 of minority students in certain special education categories has received a great deal of attention over the past thirty years.147 145 see, e.g., christina a. samuels & alex harwin, racial disparities in special ed.: how widespread is the problem?, educ. wk. (jan. 24, 2018), https://www.edweek.org/ew/articles/2018/01/24/racial-disparities-in-special-edhow-widespread.html [https://perma.cc/7azq-pv8g] (highlighting recent data suggesting that minority students are being placed in special education and isolated classrooms and punished at higher rates than their overall numbers); becky pérez et al., ctr. for evaluation & educ. pol’y, latino students and disproportionality in special education 2 (2008) (“what do patterns of disproportionality for latino students look like in specific disability categories? nccrest’s [national center for culturally responsive educational systems’s] analyses of specific disability categories combine emotional disturbance (ed), specific learning disability (ld), and mental retardation (mr) into a category termed high incidence. in the high incidence category, evidence of disproportionality was found in 14 u.s. states . . . .”). but see nora gordon, race, poverty, and interpreting overrepresentation in special education, brookings inst. (sept. 20, 2017), https://www.brookings .edu/research/race-poverty-and-interpreting-overrepresentation-in-specialeducation/ [https://perma.cc/abh4-gvkx] (highlighting a new study finding that “when you take other student characteristics—notably family income and achievement—into account, racial and ethnic minority students are less likely to be identified for special education than [w]hite students”). 146 see, e.g., jason travers & michael krezmien, racial disparities in autism identification in the united states during 2014, 84 exceptional children 403 (2018) (performing analyses of the number of students diagnosed with autism in each state and finding that minorities are significantly underrepresented in this idea category); morgan et al., racial and ethnic disparities in adhd diagnosis from kindergarten to eighth grade, 132 pediatrics 85, 85 (2013) (“racial/ethnic disparities in adhd diagnosis occur by kindergarten and continue until at least the end of eighth grade.”). but see avi salzman, special education and minorities, n.y. times (nov. 20, 2005), https://www.nytimes.com/2005/11/20/nyregion/nyregionspecial2/ special-education-and-minorities.html [https://perma.cc/7n5b-d56c] (describing the overrepresentation of black and latinx students in special education in connecticut). 147 see generally artiles et. al., justifying and explaining disproportionality, 1968–2008: a critique of underlying views of culture, 76 exceptional children 279 (2010); alfredo artiles & stanley c. trent, 308 columbia journal of race and law [vol. 9:2 the issue has largely been understood as one of racial disparity, where black and latinx students are overrepresented or underrepresented in certain disability categories.148 this framing, however, fails to recognize the most significant consequence of this disparity: racial stratification, a hierarchical sorting of races that relegates black and latinx children with constructed disabilities to segregated classrooms with a substandard education, a decreased graduation rate, and an increased likelihood of ending up in the criminal justice system. this process occurs with the attribution of disability pre-idea and the labeling of a disability in the iep process and results in disproportionate numbers of black and latinx students in certain categories.149 as a window into how disability is constructed through the idea, this section traces the process by which black children are identified as “emotionally disturbed” (ed)—a cognizable disability category under the idea. it then examines the increased likelihood that students with these designations, against a backdrop of segregation for special education students, fewer resources, and an overall substandard education, will be propelled into to the criminal justice system. the channeling effect of the ed designation ultimately reveals a few theoretical and practical consequences that the final part of this article addresses, including ideas to address its impact and how overrepresentation of minority students in special education: a continuing debate, 27 j. special educ. 410 (1994). 148 however, there is current debate about whether the issue policymakers should be focusing on is overdiagnosis or underdiagnosis. see christina samuels, special education bias rule put on hold for two years by devos team, educ. wk. (june 29, 2018, 6:00 pm), http://blogs.edweek.org/edweek/ speced/2018/06/special_education_bias_rule_postponed.html [https://perma .cc/4agy-fch6]; lauren camera, new study questions links between race, disability in students, u.s. news (aug. 31, 2017), https://www.us news.com/news/education-news/articles/2017-08-31/new-study-questionslinks-between-race-disability-in-students [https://perma.cc/emd9-y2ge]. 149 one study found that “(a) the disproportionate identification of african american and [latinx] students with learning disabilities is accounted for by the lower average ses of these racial/ethnic subgroups, (b) identification with a learning disability is associated with a student’s sex, sociodemographic (noncognitive) characteristics, and academic history, and (c) aspects of being a language minority appear to play a role in a student’s likelihood of identification with a learning disability.” dara shifrer et al., disproportionality and learning disabilities: parsing apart race, socioeconomic status, and language, 44 j. learning disabilities 246, 254 (2011) (describing the many factors, including socioeconomic status, race, gender, and language proficiency, that are often taken into account when diagnosing specific learning disability). no. 2:265] disability in school incarceration 309 it touches on larger problems of subjectivity in disability assessment in the broader context of hyper-surveilled, segregated, and grossly unequal schools. this article confines its discussion to examining ed because it is reflective of the ill-defined way in which disability is constructed, both under the law and otherwise.150 a 2008 report in philadelphia attempted to unpack the startling statistic that african american boys made up fifty-nine percent of the “emotional support” programs (due to the ed classification) when they comprised less than a third of the student population.151 black boys are twice as likely as their white male peers to be put into this category.152 they are also six times more likely to be labeled “emotionally disturbed” than white girls.153 150 similar idea categories ripe for discretionary abuse include the umbrella categories of “other health impairment” and “special learning disabilities.” “other health impairment” covers conditions that limit a child’s strength, energy, or alertness. one example is an attention issue like adhd. see andrew m.i. lee, the 13 conditions covered under idea, understood, https://www.understood.org/en/school-learning/special-services/ special-education-basics/conditions-covered-under-idea [https://perma.cc/ 2les-dzrm]. “special learning disabilities,” or “sld,” covers a specific group of learning issues. the conditions in this group affect a child’s ability to read, write, listen, speak, reason, or do math. see id. (describing the personal struggle of the author as she tries to gain inclusive education for her child). 151 a national trend: black and latino boys predominate in emotional support classes, thenotebook (nov. 26, 2008) [hereinafter a national trend], http://thenotebook.org/latest0/2008/11/26/a-nationaltrend-black-and-latino-boys-predominate-in-emotional-support-classes [https://perma.cc/d8f9-wbtm]. 152 office of special educ. & rehab. servs., u.s. dep’t of educ., 38th annual report to congress on the implementation of the individuals with disabilities education act xxvi (2016) (“black or african american students ages 6 through 21 were 2.08 and 2.22 times more likely to be served under idea, part b, for emotional disturbance and intellectual disabilities, respectively, than were the students ages 6 through 21 in all other racial/ethnic groups combined. the risk ratio for black or african american students ages 6 through 21 was larger than the risk ratio for the students ages 6 through 21 in all other racial/ethnic groups combined for every disability category except autism (0.99), deaf-blindness (0.76), and orthopedic impairments (0.86).”); see also nat’l ctr. for educ. statistics, children and youth with disabilities (2017) (finding that black students and students identifying with more than one race were diagnosed with emotional disturbance at a rate of seven percent compared to the rate at which students served under idea overall were diagnosed—five percent). 153 the same study also noted that white girls were four times more likely than black boys to be identified as mentally gifted. ironically, labeling 310 columbia journal of race and law [vol. 9:2 educators nationwide have recognized the label’s detrimental effects.154 shortly after this report’s release, philadelphia superintendent arlene ackerman addressed this issue: “the research clearly shows us that for young men of color, particularly african american and latino . . . a special education label, especially ‘emotionally disturbed,’ becomes a life sentence, causing many . . . to drop out of school early and enter the criminal justice system.”155 the ed category—defined as an “inability to learn that cannot be explained by intellectual, sensory, or health factors”— is often considered the catchall category used when no other label fits.156 because the designation turns largely on the students as “gifted” is also not a colorblind process. see anya kamenetz, to be young, “gifted” and black, it helps to have a black teacher, npr (jan. 20, 2016), https://www.npr.org/sections/ed/2016/01/20/463190789/to-be-younggifted-and-black-it-helps-to-have-a-black-teacher [https://perma.cc/9jg7ys3x] (“a new, national study finds that [b]lack students are about half as likely as [w]hite students to be put on a ‘gifted’ track—even when they have comparable test scores. only one factor erased this disparity between students: the race of their teachers. nonblack teachers identify [b]lack students as gifted in reading 2.1 percent of the time. black teachers are three times more likely to identify [b]lack students as gifted in reading: 6.2 percent of the time.”). 154 the nebulous nature of the ed category is particularly detrimental for black, latinx, and poor students in schools with a web of surveillance and few therapeutic resources. black and latinx children are “pushed out” of schools, end up in segregated classrooms or separate schools, and receive a subpar education, increasing the likelihood they will not graduate and end up in the juvenile justice system. the result is racial stratification, as will be discussed. children with special education labels are often segregated from general education classrooms. today, approximately 13.3 percent of children with disabilities spend forty percent or less of their day inside a regular classroom. students served under idea, supra note 13. for criticism of the segregation of children with disabilities in schools, see liza long, don’t segregate my special needs child, time (sept. 2, 2014), http://time.com /3257982/special-needs-children-education/ [https://perma.cc/bgu6-ay37]. 155 a national trend, supra note 151. 156 the idea defines emotional disturbance as follows: a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance: (a) an inability to learn that cannot be explained by intellectual, sensory, or health factors. no. 2:265] disability in school incarceration 311 subjective assessment of teachers and administrators, it is particularly prone to abuse. additional factors that are deemed warning signs heighten the risk of over-designation in this expansive category. antisocial behavior, the inability to build positive relationships with teachers and students, inappropriate behavior, or even a “general pervasive mood of unhappiness or depression” are all indicators that are social, contextual, and subject to highly subjective interpretations.157 experts, parents, and advocates have been sounding the alarm about racial disproportionality in these highly subjective classifications for decades.158 diagnosing a child with ed requires a subjective assessment and interpretation of key elements such as “long period of time,” “marked degree,” “satisfactory,” “inappropriate,” and “unhappiness.”159 these so-called “soft disabilities” have thus become catchalls for broad classes of learning challenges and antisocial behaviors that are often applied to black and latinx children given the bias that may seep in during the attribution process. the very category of ed is indistinct, or what some have called an “unintelligible” category, given the “ambiguity of language and frailty of logic.”160 notably, this same ambiguity was recognized when ed was codified into law. the federal (b) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers. (c) inappropriate types of behavior or feelings under normal circumstances. (d) a general pervasive mood of unhappiness or depression. (e) a tendency to develop physical symptoms or fears associated with personal or school problems. 34 c.f.r. § 300.8(c)(4)(i) (2018) (emphasis added). 157 see id. 158 see julianne hing, race, disability and the school-to-prison pipeline, colorlines (may 13, 2014), https://www.colorlines.com/articles/ race-disability-and-school-prison-pipeline [https://perma.cc/7s84-rkm9] (“what is clear, says ucla’s civil rights project director dan losen, is that disproportionality in special education highlights the many places where ‘bias can seep in.’”). 159 see 34 c.f.r. § 300.8(c)(4)(i). 160 sullivan, supra note 116, at 246. 312 columbia journal of race and law [vol. 9:2 definition was largely based on e.m. bower’s research despite the fact that bower defined ed by social maladjustment, which drew harsh criticism: “to use a definition that operationally and conceptually defines emotional disturbance by their social maladjustments, then disqualifies them on the same basis, fits tweedledee’s logic, ‘if it were so, it might be; and if it were so, it would be; but as it isn’t, it ain’t.’”161 thus, from its codification, the definition of ed has lacked specificity and seemingly relied on circular reasoning, failings that remain unresolved. moreover, case law reveals that the range of actors involved in making decisions about the meaning of ed—educators, related service providers, families, and judges—maintain contradictory interpretations of the category and its applicability to individuals.162 as a result, the underlying issues (disability-related and other issues such as trauma or fear of separation) that may exist have the potential to be easily swept into a neat—but largely unhelpful— category.163 the jarring racial disproportionality in this category can be explained by an ill-defined category and the myriad of 161 id. at 246 (citing eli m. bower, defining emotional disturbance: public policy and research, 19 psychol. schools 55, 58 (1982)). 162 see sullivan, supra note 116, at 246 (“more fundamentally, this case law reveals varying, and at times wildly inappropriate (e.g. irrational and unempirical), conceptualizations of psychopathology, volition, culpability, the purpose of special education, and students’ rights to treatment versus penalty that parallel divergent scholarly perspectives.”); shanna sadeh & amanda l. sullivan, ethical and legal landmines: causal inference in special education decisions, 54 psychol. schools 1134 (2017). 163 the porous nature of ed has the potential for expansion and allows for it to be used as a catchall category and subject to changes in interpretation, as evidenced by a recent novel legal challenge. in peter p. v. compton unified school district, a group of students allege that the trauma they have experienced impacts their ability to learn and may cause ptsd— a category absent from the cognizable idea categories. complaint, peter p. v. compton unified sch. dist., no. 2:15-cv-03726-mwf-plax (may 18, 2015). one way experts have managed the absence of a ptsd category in the idea is by labeling students such as the plaintiffs in peter p. as emotional and behaviorally disturbed. see kaitlyn ahlers et al., traumainformed schools: issues and possible benefits from a recent california lawsuit, 44 communique 23, 24 (2016). in fact, the national association of school psychologists has anticipated that, in light of peter p., one of the possible changes will be “adjusting ed [emotionally disturbed] symptom criteria” such that the “ed category more clearly identified symptoms that are connected to trauma-related conditions.” id. at 25. adjusting the category will ensure that legal protections are triggered. no. 2:265] disability in school incarceration 313 factors previously examined that reflect teacher bias.164 however, if we link the disproportionality to a broader constellation of opportunity gaps, it is clear that ed is often, at least in part, related to context and shaped by educational experiences. improved teacher practices (student to teacher ratio, smaller class sizes, race of teacher matching student165) not only enhance student achievement, but also mitigate the more critical aspects of ed (e.g., peer interactions, engagement).166 consequently, it is valuable to examine the ways in which school environments may contribute to the ed label—and by extension, all disability identification—for children who are in particularly fraught school environments with heavy surveil 164 sullivan, supra note 116, at 248 (“although not yet well substantiated in special education, behavioral differences between children from dominant and nondominant cultural backgrounds may be related to general tendencies for white observers to interpret behavior differently based on the race and gender of the actor. research has frequently demonstrated racial bias in numerous decision-making contexts related to capability, culpability, and treatment—all of which are certainly interwoven in notions of ed— across a variety of fields including social psychology, criminal justice, economics, and various helping professions. it is unlikely educators and related service providers involved in special education disability identification are immune to such biases when the decisions rendered parallel those in other contexts where there is robust evidence of bias. furthermore, educational research indicates teachers’ tendencies to perceive and respond differently to students’ behavior in ways that disadvantage students from some racial minority backgrounds and may contribute to problematic behaviors . . . .” (citations omitted)). 165 ted gregory, possible key to black boy’s academic success: hire black men as elementary school teachers, chi. trib. (july 25, 2018), http:// www.chicagotribune.com/news/ct-met-recruiting-male-black-elementary teachers-20180724-story.html [https://perma.cc/k32y-e2hj] (“research by an economist at university of california at santa barbara, for example, showed that [b]lack students with [b]lack teachers were suspended less often than [b]lack students with [w]hite or hispanic teachers. a 2016 study by the american educational research association concluded that, test scores and other factors being equal, [b]lack students were three times more likely to be assigned to gifted programs when taught by a [b]lack teacher than a non-[b]lack teacher.”). 166 see anne gregory et al., the relationship of school structure and support to suspension rates for black and white high school students, 48 am. educ. res. j. 904, 929 (2011) (“schools in which the students experience neither a strong sense of support by teachers nor high expectations of academic achievement appear to be most vulnerable [to disproportionate suspension of black students].”). 314 columbia journal of race and law [vol. 9:2 lance, both formal and informal.167 for example, the presence of police creates an atmosphere of stress that has a direct impact on how black and latinx students respond. they may try to cope with the stress and respond with fear that authority figures incorrectly perceive as “acting out.”168 these acting-out behaviors, in turn, may then result in the misidentification of a diagnosis as well as disciplinary proceedings, as there is no requirement for schools to be more lenient with students with a diagnosed disability, even if it will almost necessarily mean that they will engage in disruptive behavior. police presence combined with zero-tolerance discipline policies creates a school atmosphere where children are under a magnifying lens, and this magnifying lens only increases the number of students who are labeled as having a disability, whether this is appropriate or not. the channeling effect of the ed designation ultimately reveals a few theoretical and practical consequences that are worth noting. these include how this reveals larger problems of subjectivity in disability assessment in the broader context of hyper-surveilled, segregated, and grossly unequal schools. to address these consequences, solutions outside the law may be needed.169 b. criminalization and racial stratification of disability this article concludes where it begins by suggesting that for white students and students in high-performing and 167 sociologist victor rios distinguishes between the ways black and latinx boys are policed by dividing this category as “material” versus “symbolic” criminalization. rios, supra note 15. 168 see hannah-jones, supra note 92 (arguing that black communities fear police given the “historic role of policing in reinforcing racial inequality”); see also james foreman, locking up our own: crime and punishment in black america (2017) (providing a comprehensive analysis of the historic role of policing in black communities). 169 see hing, supra note 158 (documenting how a principal relied on outside funding to do a trauma evaluation of child, preventing the child from obtaining a disability designation and resulting in an accurate assessment and services). some districts, like oakland unified school district in california, are piloting innovative programs with a holistic, communitywide approach to dealing with the trauma kids confront outside of school. for example, the seneca center program “all-in” is a compelling program and a way to reimagine a school community while being fiscally efficient. id. no. 2:265] disability in school incarceration 315 well-funded schools, disability is often considered a medical condition that is provided treatment and resources, whereas for black and latinx students in hyper-surveilled schools, a disability such as ed (if it exists) may be a criminalized condition remedied with punishment and, in the worst case, a more obvious and likely target for law enforcement and juvenile incarceration. as a result, this article suggests this is a form of racial stratification, a differentiation based on race with its very essence consisting of an unequal distribution of rights and privileges.170 given the limited data on treatment of students categorized by disability, it is difficult to confine this analysis to the channeling effect of students solely with ed. however, generally, students with disabilities in underresourced districts are provided fewer special education resources, more likely to be taught in segregated classrooms separate from their peers who are not disabled, more highly surveilled and thereby disciplined, more likely to end up in a continuation school, and thus more likely to be suspended, expelled, and criminalized. this is in sharp contrast to students in well-funded school districts where, despite limited funding, resources are more plentiful; there is a higher likelihood of teaching special education students in mainstream classes (inclusion), less surveillance, more college counselors, more access to special education resources, including attorneys, and students are thereby less likely to be suspended, expelled, and criminalized.171 first, the heavy police presence emblematic of hypersurveillance at schools has a significant impact on children with disabilities.172 specifically, the presence of police officers 170 for a thoughtful analysis on this issue, see kimberlé crenshaw et al., critical race theory: the key writings that formed the movement (1995). 171 see ramey, supra note 8, at 83 (finding, based on an empirical review of 600,000 students with disabilities, that schools and districts with relatively large black and latinx populations organize their student disciplinary policies around the principles of the criminal justice system rather than the mental health system). 172 “students with disabilities represented about 12 percent of the total student population but accounted for a quarter of those arrested and referred to law enforcement, 75 percent of those who were physically restrained at school and 58 percent of those placed in seclusion or involuntary confinement.” radley balko, putting more cops in schools won’t make schools safer, and it will likely inflict a lot of harm, wash. post (feb. 22, 2018), https://www.washingtonpost.com/news/the-watch/wp/2018/02/22/ 316 columbia journal of race and law [vol. 9:2 who lack training on how to interact with children with disabilities173 can lead to destructive outcomes. an example is a 2011 documented story in california where “school officials in stockton asked an officer to meet with a five year-old student with disabilities to ‘scare him straight’. when the child had a tantrum, the officer zip-tied the child’s hands and feet and took him to a mental health facility.”174 moreover, the wide discretion given to school staff about when to call the police to campus or how to interact with the police exacerbates issues for all children, rendering those with disabilities particularly more vulnerable175 and revealing the complexities of the web that both constructs and criminalizes some children with disabilities.176 the growing number of police on campus also raises larger policy issues of whether police presence is putting-more-cops-in-schools-wont-make-schools-safer-and-it-will-likely -inflict-a-lot-of-harm/ [https://perma.cc/vpt5-mxa4]. racial disparities also exist in the way police respond to mental health interventions for children. press release, advocates for children of n.y., children in crisis: police respond to students in emotional distress (nov. 2, 2017), http://www.ad vocatesforchildren.org/node/1183 [https://perma.cc/up2u-uc9r] (“black students accounted for 61.8% of students handcuffed during this type of [emotional distress call] intervention. students of color [black or latinx students] accounted for 100% of students handcuffed at ages 12 and under.”). 173 “special-needs students are disproportionately referred to police in schools, and officers themselves say they need better training.” see kriston capps, why disabled students suffer at the hands of classroom cops, city lab (oct. 28, 2015), https://www.citylab.com/equity/2015/ 10/why-disabled-students-suffer-at-the-hands-of-classroom-cops/412723/ [https://perma.cc/469g-xmhn]; see also valerie strauss, why are we criminalizing behavior of children with disabilities?, wash. post (apr. 25, 2017), https://www.washingtonpost.com/news/answer-sheet/wp/2017/04/25/ why-are-we-criminalizing-behavior-of-children-with-disabilities/?utm_term= .c977068bdcaf [https://perma.cc/rv3e-tfhy]; mark keierleber, why so few school cops are trained to work with kids, atlantic (nov. 5, 2015), https://www.theatlantic.com/education/archive/2015/11/why-do-most-school cops-have-no-student-training-requirements/414286/ [https://perma.cc/x5w4 6tu5]. 174 nelson et al., supra note 99. 175 “most school districts give staff complete discretion to call police to address student misbehaviors that should be handled by school staff such as administrators or counselors, including: general school rule violations (62% of districts give staff discretion), bullying and harassment (60.7% of districts give staff discretion), school disruption (57.4% of districts give staff discretion), and vandalism (66.7% of districts give staff discretion or even require reporting to police).” id. 176 for an account of how this occurs in practice, see hing, supra note 158. no. 2:265] disability in school incarceration 317 actually helpful for students’ safety and, particularly for students with disabilities, whether the use of funds for police should instead be spent on an increase in the number of counselors and social workers.177 second, alongside heavy presence of school resource officers and police in many underresourced districts, there is a heavy emphasis on zero-tolerance discipline policies resulting in disproportionately high numbers of children with disabilities expelled or suspended.178 the underlying pressure for these under-resourced schools is a lack of funding that manifests into a lack of resources.179 as a result, there are not enough options to educate children with disabilities, especially in places that are less segregated and restrictive.180 as schools continuously face 177 strauss, supra note 173 (“in chicago, new york and houston, for example, there are more school security guards and sros in schools than there are counselors and social workers. yet it is counselors and social workers who are needed to address the root causes of the problems causing students, particularly those with disabilities, to act out in schools in the first place.”). 178 see supra part iii; see also u.s. gov’t accountability office, supra note 35 (students with disabilities were disproportionately disciplined (e.g., suspensions and expulsions) in k-12 public schools, even when controlling for type of disciplinary action, level of school poverty, or type of public school attended). 179 since the enactment of the idea, the law has included a commitment to pay forty percent of the average student cost per student for every special education student. the current average per student cost is $7,552 and the average cost per special education student is an additional $9,369 per student, or $16,921. background of special education and the individuals with disabilities education act (idea), nat’l educ. ass’n, http://www.nea.org/home/19029.htm [https://perma.cc/6f7m-u5da]; see also maya srikrishnan, when it comes to special education in california schools, “funding is very unequal,” voice san diego (aug. 10, 2017), https://www.voiceofsandiego.org/topics/education/comes-special-educationcalifornia-schools-funding-unequal/ [https://perma.cc/qs3f-yww6] (finding that funding in california is very unequal, with districts with higher needs sometimes receiving less money per student than districts with lower needs). this issue was supposed to be addressed by an effort in 2015 when the california department of education began working to create a unified system to elevate the academic success of students with disabilities and lowincome students via the “local control funding formula,” which directs additional funds to serve “high needs” students. the goal is to bring special education students into every school district initiative to improve achievement. local control funding formula guide, edsource, https://edsource.org/2016/ local-control-funding-formula-guide-lcff/89272 [https://perma.cc/qbs4-sk2e]. 180 by law, students with disabilities under the idea should be taught in the least segregated and least restricted environment to ensure 318 columbia journal of race and law [vol. 9:2 accountability pressures (test scores, rankings), students with disabilities are also sometimes relegated to “alternative schools” where the education options are limited and the graduation rates are much lower.181 students in these schools often report that they “listen to music the whole time” or cannot “get enough help from teachers when the material [is] confusing.”182 in some of these schools, they are not allowed to participate in after-school activities—no sports, no drama, and no clubs. as a result, students with ed, much like students with other disabilities, are either put in segregated classrooms183 at their respective schools or transferred from their neighborhood schools into segregated classrooms in substandard buildings where they get minimal therapeutic support and second-rate educational instruction. in these schools, the expectations are low, the dropout rates are high, and the risk that they will end up in jail is even higher given that dropout rates lead to a higher likelihood of entering the juvenile delinquency system.184 for students with disabilities, ideal learning outcomes. see 20 u.s.c. § 1412(a)(5)(a) (2018); 34 c.f.r. § 300.114 (2018). the debate on segregated learning for students with special education versus inclusion education is beyond the scope of this article but a worthy and hotly debated issue in education. see generally arlene kanter & beth ferri, right educational wrongs: disability studies in law and education (2013). 181 a recent investigative article on alternative schools shined a light on this issue, which is increasingly becoming a dumping ground for children with disabilities. see heather vogell & hanna fresques, “alternative” education: using charter schools to hide dropouts and game the system, propublica (feb. 21, 2017), https://www.propublica.org/article/alternativeeducation-using-charter-schools-hide-dropouts-and-game-system [https:// perma.cc/m9ab-xy49] (“[a]lternative schools at times become warehouses where regular schools stow poor performers to avoid being held accountable. traditional high schools in many states are free to use alternative programs to ride themselves of weak students whose test scores, truancy and risk of dropping out threaten their standing, a propublica survey of state policies found.”). 182 id. 183 simultaneously, the labeling of these same students is too freely used by schools to mark them as deficient, segregating them from regular classrooms. see generally floyd weatherspoon, racial justice and equity for african american males, 29 n.c. cent. l.j. 29 (2006). 184 dropping out of high school has been correlated with an increase in entering the juvenile justice system, although there are a myriad of factors that are at play. see andrew sum et. al., the consequences of dropping out of high school: joblessness and jailing for high school dropouts and the high cost for taxpayers (oct. 2009) (unpublished manuscript), https://repo sitory.library.northeastern.edu/downloads/neu:376324?datastream_id=content no. 2:265] disability in school incarceration 319 the phenomenon of poor quality and segregated schools is so outrageous and damaging in some places that it has prompted lawsuits and inquiry from the department of justice.185 in these schools, there are minimal resources and therapeutic support. thus, criminalization for black and latinx children happens with untrained police officers in hyper-surveilled schools with heavy handed discipline policies that may lead to suspension, expulsions, and dropout. it also happens in segregated classrooms with a lack of resources or when they end up in an alternative school and drop out. as a result, students who have been surveilled their entire lives, either because of or despite their disability and/or race, enter the juvenile justice system, thereby reaching the end of the pipeline.186 meanwhile, for students in well-functioning school systems, it is not always ideal,187 but local schools can usually (finding that male high school dropouts were forty-seven times more likely to be incarcerated than their similar-aged peers who held a college degree and that relative odds were especially high among black males compared to white and asian males). during a 2006 conference on the high school dropout problem in illinois, then state senate president emil jones noted that “[d]ropping out of high school was an apprenticeship for prison.” id. at 11. 185 see complaint, united states v. georgia, no. 1:16-cv-03088-elr (aug. 23, 2016), https://www.justice.gov/crt/file/887356/download [https:// perma.cc/83a9-eq88]. in this case, the justice department sued the state of georgia alleging that many of the 4600 children who are enrolled in the state-run program for students with disabilities are taught via computer programs and that many go to school in poor-quality facilities once used as schools for black children during the days of jim crow. the lawsuit seeks to force the state to provide students with the services they need in integrated, general-education settings, where they can interact with—and have the same educational opportunities as—their nondisabled peers. 186 sociologist victor rios profoundly captures the import of this moment when he describes one such student, jose, who had been in a highly punitive school environment and policed heavily from a young age and is now in the juvenile justice system. rios writes, “criminalization and punishment had accomplished themselves: stigmatizing jose at a young age, excluding him from productive activities as he matured, brewing a resentment and resistance in him that would lead him deeper into criminalization, marking him with negative credentials, preparing him for prison, and ultimately ingesting him into its punitive carceral abyss.” rios, supra note 15, at 159. 187 in new york, a growing number of affluent families have successfully sued the city on the grounds that the public schools are so bad for their learning-disabled children that taxpayers should pay to send their children to elite private schools. what exists now—where wealthy parents can send their children to a private schools—is described as a “defector private 320 columbia journal of race and law [vol. 9:2 provide appropriate services for most special-needs children or recognize their inability to do so and refer the student to an appropriate private provider.188 central to the success of special education services in all schools is the use of transition plans and services post-high school; with solid plans, students who benefit from special education graduate, pursue higher education, and gain meaningful employment instead of living at home and working low-paying jobs.189 in turn, students in special education classrooms in high-performing schools with well-funded special education programs, correct and regularly accessed diagnostics, proper services updated as needed, and healthy school environments that reward behavior and do not rely on punitive discipline can be successful. vi. conclusion the discrepancy between well-funded and grossly underfunded schools raises larger policy questions that are outside the scope of this article but are worth raising; the main red flag this article raises is the way disabilities are subjectively determined in grossly unequal schools and its impact on black voucher system that is largely inaccessible to poor families.” epstein, supra note 12. wealthy parents admit that some schools are mere “warehouses” and “places where they no longer send kids on an academic track . . . . [a]nd they’re no longer on a therapeutic track.” id. this unfair system has caused new york thousands of dollars and mayor bloomberg pushed back. elissa gootman, in special education cases, city is fighting harder before paying for private school, n.y. times (dec. 12, 2007), https://www.nytimes .com/2007/12/12/nyregion/12consultants.html?pagewapage=print&_r=0 [https://perma.cc/9rgv-4nsk]. 188 see megan mcardle, our special-ed system favors the rich (and romney has a plan to fix it), atlantic (june 1, 2012), https://www. theatlantic.com/business/archive/2012/06/our-special-ed-system-favors-therich-and-romney-has-a-plan-to-fix-it/257949/ [https://perma.cc/3yhk-e8tp]; see also ramey, supra note 8, at 197 (“criminalized and medicalized disciplinary policies represent updated approaches to the reproduction of racial and economic social structures in schools.”). 189 see sarah butrymowicz & jackie mader, the “forgotten” part of special education that could lead to better outcomes for students, hechinger rep. (dec. 16, 2017), https://hechingerreport.org/forgotten-partspecial-education-lead-better-outcomes-students/ [https://perma.cc/85qey3sd] (finding that post-high school transition plans were determinative of the outcome of students in special education; moreover, “[e]mployment rates varied considerably by disability” and “[n]early 80 percent of students with learning disabilities had jobs, compared to 45 percent of those with autism and 55 percent of those with an emotional disturbance”). no. 2:265] disability in school incarceration 321 and latinx communities. we must fully understand this web that exists in the construction and criminalization of disabilities for black and latinx children and the role that schools play in this process in order to effectively address (via laws, policies, and practices) and ultimately end the disproportionate number of children with disabilities who are incarcerated.190 in doing so, we would move closer to a human-rights-based model of justice where the child’s individual needs are front and center.191 190 the complexity of this web is gaining increased recognition. christina a. samuels, schools’ racial makeup can sway disability diagnoses, educ. wk. (june 11, 2019), https://www.edweek.org/ew/articles/2019/06/12/ segregation-sways-disability-diagnoses.html [https://perma.cc/3se3-6kb6] (“[a] handful of new studies, all published in may, suggest that identifying a child with a disability is linked to a complex set of factors. they include the racial makeup of the school that child attends, the resources available to that school, and even the perception of certain disabilities being more desirable than others.”). understanding the complexity is particularly important given that students with disabilities who end up with juvenile delinquency records are particularly vulnerable to becoming recidivists. see dalu zhang et. al., adolescents with disabilities in the juvenile justice system: patterns of recidivism, 77 couns. for exceptional child. 283 (2011) (suggesting that more research is needed on why students with disabilities have high rights of recidivism; one promising suggestion to curb the tide is implementation of wraparound and family empowerment services). 191 see generally franklin e. zimring et al., juvenile justice in a global perspective (david s. tenanhaus ed., 2015); thomas hammarberg, a juvenile justice approach built on human rights principals, 8 youth just. 193 (2008); see also bernardine dorhn, something’s happening here: children and human rights jurisprudence in two international courts, 6 nev. l.j. 749 (2006). 322 columbia journal of race and law [vol. 9:2 columbia journal of race and law vol. 12 july 2022 no. 1 lived experience and disability justice in the family regualtion system l. frunel & sarah h. lorr “acs labeled me dirty as if cleaning me up. i am not dirty, i am not a disease, i am not a body, i didn’t come in here empty-handed.” – l. frunel i. introduction.......................................................................................478 ii. coming under the family regulation system .................................481 iii. ableist and prejudicial conceptions of disability in a carceral system ...............................................................................................484 a. biased and superficial understandings of disability ...............484 b. reliance on the medical model of disability .............................487 c. the system’s failure to center parents ...................................488 iv. a vision for fundamental change and reforms to shrink the system ...............................................................................................489 a. pretrial representation .............................................................491 b. family miranda .........................................................................493 c. independent review board ........................................................494 v. conclusion .........................................................................................495  l. frunel is a parent and activist who is currently fighting for her family in the child welfare system. ultimately, because of fear of jeopardizing her legal case, she has chosen to publish this piece under an assumed name. sarah h. lorr is an assistant professor and co-director of the disability and civil rights clinic at brooklyn law school. she gratefully acknowledges the network of advocates who supported her in this project: joyce mcmillan, prianka nair, tarek ismail, julia hernandez, and amy mulzer. 478 colum. j. race & l. [vol. 12:477 i. introduction the public family regulation system is predicated upon laws and policies which are purported to value family reunification as the primary goal.1 these laws and policies are in turn built on the premise of equitable treatment of the parents and families who become involved in the system.2 and yet, the system fails to live up to these standards. parents who may need, and in turn seek, legitimate support from the state are seen as frail, incapable, and broken. parents who do not seek to remedy supposed “flaws” in their approach to parenting are viewed as resistant, noncompliant, and unworthy of parenthood. parents identified as having a disability face additional challenges. system stakeholders—from case planners to lawyers to judges—readily pathologize parents with disabilities, largely ignoring their voices and experiences, despite their intimate knowledge of their own and their children’s needs. disability or diagnosis itself can be seen as synonymous with the inability to parent. given the pervasive bias against parents with disabilities, the family regulation system’s supposed goal of equitable treatment remains an unrealized promise; parents with disabilities face much higher rates of separation and lower odds of reunification than parents without disabilities.3 in the family regulation system, the label of disability specifically impacts how parents are treated, including whether they are offered meaningful support and an equal opportunity to be reunited with their children. indeed, the label of disability is used to strip parents of rights and credibility. caseworkers, judges, and attorneys often fail to understand the nature of disability while simultaneously espousing and adopting harmful stereotypes of disability to conclude that disabled parents cannot parent. 1 see matter of lacee l. (stephanie l.), 32 n.y.3d 219, 223 (2018) (“the primary goal of new york’s child welfare scheme is safe family reunification.”); adoption assistance and child welfare act of 1980, 42 u.s.c. § 622 (2018) (requiring states to make reasonable efforts to prevent removal and, once children are placed into foster care, to make reasonable efforts towards family reunification); n.y. soc. serv. law §§ 384-b (1)(a)(ii), (iii) (demonstrating it has long been the public policy to keep biological families together and to require foster care agencies to exercise diligent efforts to reunite abused and neglected children with their birth parents, once rehabilitated; see also child. bureau, dep’t of health & hum. servs., reasonable efforts to preserve or reunify families and achieve permanency for children: state statutes 1–2 (2016), https://www.childwelfare.gov/pubpdfs/reunify.pdf [https://perma.cc/wnj5-v8c9]. 2 shortly after parents and advocates filed a class-action lawsuit against new york city for violating the rights of parents who have intellectual disabilities, commissioner of the administration of children’s services david hansell issued a statement in which he asserts that “[t]reating all parents equitably is vital in our work.” nikita stewart, disabled parents sue new york city over child removals, n.y. times (oct. 9, 2017), https://www.nytimes. com/2017/10/09/nyregion/parents-with-intellectual-disabilities-sue-new-york-city.html [https://perma.cc/645y-54ls]. 3 parents with an intellectual disability are more than three times as likely to have their parental rights terminated than parents without a disability, and their children are removed at rates as much as eighty percent higher than are children of non-disabled parents. nat’l council on disability, rocking the cradle: ensuring the rights of parents with disabilities and their children 16 (2015) [hereinafter rocking the cradle], https://www.ncd.gov/sites/default/files/documents/ncd_parenting_508_0.pdf [https://perma.cc/dsb6-kvuy]. parents with psychiatric disability face child removal rates that are seventy to eighty percent higher than parents without a disability. id. 2022] lived experience & disability justice 479 parents who resist diagnosis with a disability are likely to be denigrated as unable to understand themselves and their children by reason of disability. those who embrace or acknowledge their disabilities can be penalized for exhibiting behaviors relating to their disabilities or even for seeking help. this piece explores how ableism operates in the family regulation system to create the ongoing pathology of parents with disabilities and of parents who have been labeled as disabled by the system.4 specifically, we share one co-author’s inequitable experiences of being pathologized. by presenting the lived experience of one parent in the family regulation system who initially sought help from the system and was later labeled as having a psychiatric disability, we expose how‚—regardless of a parent’s disability status—their experience in family court is irrevocably marred once they are saddled with a disability label. our approach is guided by the disability justice framework. disability justice recognizes that “all bodies are unique and essential” and simultaneously that “all bodies are confined by ability, race, gender, sexuality, class, nation state, religion, and more, and we cannot separate them.”5 a disability justice lens demands an inherently intersectional analysis recognizing that “we are many things, and they all impact us.”6 accordingly, it demands not only that we “gratefully embrace the nuance . . . [of] our lived experiences,” but that we understand the way these intersectional identities shape both how we perceive and how we are perceived.7 the disability justice framework guides us to a potential way forward in the family regulation context. just as disability justice as a movement calls for “leadership of the most impacted,” the authors of this piece believe that impacted communities have the capacity to strengthen themselves and the families that exist within them, and that parents and families themselves know what it is they most need.8 any system truly 4 we adopt the definition of ableism offered by liat ben-moshe: “ableism is oppression faced due to disability/impairment (perceived or lived), which not only signals disability as a form of difference but constructs it as inferior.” liat ben-moshe, decarcerating disability: deinstitutionalization and prison abolition 16 (2020) [hereinafter ben-moshe, decarcerating disability]. we also draw on ben-moshe’s offered definition of sanism as “oppression faced due to the imperative to be sane, rational, and non-mad/crazy/mentally ill/psychiatrically disabled.” id. at 16–17 (citing michael l. perlin, on sanism, 46 s.m.u. l. rev. 373 (1993)). 5 sins invalid, skin, tooth, and bone: the basis of movement is our people: a disability justice primer 19 (2d. ed. 2019) [hereinafter disability justice primer]. 6 id. at 23. 7 id. this is connected to lennard j. davis’s idea of the “dismodern” body, which begins from the premise that we are all disabled and need assistance and interdependence in order to survive—ranging from legislation to technology. lennard j. davis, bending over backwards: disability, dismodernism and other difficult positions 30 (2002). under this premise, it is not unnecessary or unusual to require assistance or support from the state, and notions like independence are exposed as being artificial. id. 8 “when we talk about ableism, racism, sexism & transmisogyny, colonization, police violence, etc., we are not looking to academics and experts to tell us what’s what—we are lifting up, listening to, reading, following, and highlighting the perspectives of those who are most impacted by the systems we fight against.” disability justice primer, supra note 5, at 23. ben-moshe, like many other scholars and activists in this field, also acknowledges the value of centering the experience of the most disabled in shaping law and policy. see 480 colum. j. race & l. [vol. 12:477 concerned with the welfare of children must recognize the inherent wholeness of all families—and the people who make them up—and allow families and parents themselves to design and seek the supports that they require. this is in stark contrast to the system as it currently functions, where caseworkers, lawyers, judges and others outside of the family unit— who also systemically operate from outside of the family’s community or culture—dictate what supports or services are supposedly necessary or beneficial for the parent and family.9 in practice, the “services” are likely to be selected from a menu of pre-existing programs offered by providers with whom the state or city has a contract. in essence, parents are forced to participate in time-consuming programs meant to “support” them and improve their parenting skills, based on the vision of caseworkers or judges who do not know or understand the material needs of the parent and family. parents who accept the offered services often have their true needs go entirely unaddressed. parents who do not engage in the required services are pathologized for rejecting them, even if they are unnecessary or inappropriate. this double bind, along with the coercion and bias embedded in the system, leads us to conclude that the current system is untenable. in part i, l. frunel, a mother whose children are currently in foster care, shares her experience of having her children removed and then placed out-of-state after she was labeled with a disability, despite her completion of each “service” the new york administration for children’s services (“acs”) has asked her to undertake.10 the state removed her children nearly two years ago. as of this writing, ms. frunel still has not had a trial and she continues to fight for her family to be reunified. due in part to the ongoing covid-19 pandemic and the placement of her children in another state, she has not had an in-person visit with them in more than one year. what began as a case of alleged corporal punishment morphed into the ongoing surveillance and pathology of ms. frunel, intensified in part by a merely suspected mental health diagnosis. she uses the first-person singular as she presents her narrative in part i and as she elaborates on her experience throughout the piece.11 generally ben-moshe, supra note 4 (consistently “center[ing] activist movements anchored by those most affected” throughout analyses of carceral policies and institutions). 9 in the current system, so-called services and supports can consist of required participation in anything from parenting or anger management classes, to therapy, to domestic violence counseling, and other programs. see parent’s guide to foster care, nyc admin. for child. servs., https:// www1.nyc.gov/site/acs/child-welfare/parents-guide-to-foster-care.page [https://perma.cc/ st7u-ut89] (“[t]he agency case planner will work with you and your family to develop a comprehensive assessment and a service plan which will include . . . services such as counseling and medical evaluations depending on the . . . circumstances of your case.”). 10 the authors seek to emphasize that the story of ms. frunel’s experience is neither representative of the experiences of all system-involved parents, nor is it meant to essentialize experiences of parents labeled as having a disability. instead, it is our hope that the experiences relayed here will shed light on some of the experiences of others in the system and impart valuable learnings about the family regulation system. 11 in addition to using the first person singular, we use italics to delineate sections that derive solely from ms. frunel’s experiences. 2022] lived experience & disability justice 481 in part ii, we discuss how ableism operates as a force within the system, using examples from ms. frunel’s experience to illustrate related systemic problems. specifically, we explore how ms. frunel’s experiences expose the system’s biased and superficial ableist understandings, the system’s reliance on a medical model of disability, and the system’s failure to listen to and trust parents. part iii calls for a reimagining of the family regulation system, naming specific avenues of “non-reformist” reform. we urge the adoption of a conception of “child welfare” anchored in the disability justice movement, which recognizes that “all bodies have strengths and needs that must be met.”12 based on ms. frunel’s experience with the overlapping family regulation and criminal justice systems, we seek a model that is non-adversarial and support-based. after briefly describing our hopes for the development of an alternative approach to supporting families, the authors put forth specific suggestions aimed at improving experiences and outcomes for families. these reforms, though far from the full reimagining we ultimately seek, are offered in recognition that the current adversarial and punitive system continues to actively harm families. we present these reforms as a path to minimize the ongoing damage caused by the system and, ultimately, as a means of shrinking the system itself. ii. coming under the family regulation system in late 2018, i learned i was the subject of an anonymous complaint about child abuse when a caseworker came to my apartment door. i was in my forties; i had never had any interaction with foster care or the court system. both my children were honor roll students, and both were involved in a number of activities: swimming, basketball, the choir at church, and the children’s ministry. my son is on the autism spectrum. he has attentiondeficient/hyperactivity disorder (“adhd”) and sensory processing challenges. he has an individualized education program (“iep”),13 and i have devoted significant parts of my professional life to making sure he is learning and being given real support. i took a five-year professional sabbatical because he was detected to have reading challenges. during that time, i would stay with him after school and teach him. i first had to teach myself the phonetic instructions and then teach him. this is the family that acs met in 2018. without knowing anything about acs, i welcomed the caseworker into my home. she wanted to speak to me and my children, and i let her; i was naïve and blindsided. she asked questions, looked for food, and looked 12 disability justice primer, supra note 5, at 19. 13 federal law, particularly the individuals with disabilities education act (“idea”), provides for students with disabilities to receive free and public education services through individualized education programs formulated by parents and school officials to meet the students’ needs. 20 u.s.c. § 1412(a)(1); endrew f. v. douglas cnty. sch. dist. re1, 137 s. ct. 988 (2017) (interpreting the substantive obligations of the “individualized education program” under idea). cf. cynthia godsoe, caught between two systems: how exceptional children in out-of-home care are denied equality in education, 19 yale l. & pol’y rev. 81, 91–94 (2000) (detailing the iep, in the context of an examination of child welfare at the intersection of the family regulation system and exceptional children’s educational access). 482 colum. j. race & l. [vol. 12:477 at my children’s bodies. she said she didn’t see any indication of abuse or neglect. at the time, i was going through a bitter divorce, so i asked for services. i explained that my husband had moved out of state, that i was the primary parent, and that there had been domestic violence. i explained that my son was on the autism spectrum. i was managing all of this on my own and i wanted help. she said no and explained that the report would close in sixty days. a few months later, in early 2019, i received a call from acs saying that they were going directly to my son’s school. my children were seven and nine years old. my mom—who used to help me watch the kids while i worked—went to the school while acs was there. they all went to the police station, where my son was interviewed by a police officer. the officer told my mother she could not go inside; my son was alone. when i arrived at the station, the police officer told me that their mom used to hit them too. the officer asked me what happened. i had never been arrested before, but i knew i had a right to a lawyer; i didn’t answer any questions. i was then arrested and accused of hitting my son with a broom, a mop, a dustpan, and a toy sword. in criminal court, i was charged with three different counts based only on my son’s statements. i was assigned an attorney and told i would be facing a class f felony. i was released on my own recognizance—meaning that i was allowed to leave without bail. i was in my forties and had no criminal history. with assistance from my family, i secured a private attorney, and the criminal charge was adjourned in contemplation of dismissal and eventually dismissed. once released, i was told to meet acs at family court for a meeting. again, i had never had any experience with family court; i had no idea this would be a court case or that i could be accused of doing something else wrong when i already had a criminal case that was dismissed. i arrived at the meeting and told them i didn’t want to participate without an attorney. i had just left my attorney in criminal court. my attorney was clear that i shouldn’t talk about the case. the caseworker from acs told me, “you don’t need an attorney, you are here just to do a family-based assessment.” i didn’t know what that meant or the risk that i was taking by speaking to them. during this meeting, acs asked about my mental health. the caseworker asked specifically if i was bipolar. i didn’t see a negative stigma with having bipolar disorder. to me, it is better to identify if you have a health condition, to seek treatment and go to the doctor—get the proper medical attention for it. in my family, mental health conditions may be considered a taboo, but i had learned to empower myself when it comes to mental health and any mental health concerns. so, when they said the word “bipolar,” i said that i didn’t know—“i could or i couldn’t be. i don’t have any symptoms of it, but i need to be aware of these things so that i can teach my children these signs, so that they are conscious of their stress and their environments and what could take them to overload.” i felt at the time like i was in a safe place where i could be vulnerable. i used that as a moment to talk about recognizing bipolar disorder in a good way, not knowing that it would be used as a weapon against me. 2022] lived experience & disability justice 483 the next day, acs raised my mental health in court. they told the judge what i had said—specifically, that i did not deny having bipolar disorder. from there, acs subjected me to a series of health evaluations, trying to prove that i have bipolar disorder while assuming that i do. when acs labeled me as bipolar, they also assumed i was violent, incompetent, unstable, and unable to take care of my children without the help of someone else. to them, the word “bipolar” meant that i, as the one with that label, was a violent individual so my children were not safe around me. after the family court case was filed, i felt personally ambushed and attacked. because i was charged with excessive corporate discipline, any mark on my child’s body was considered an abuse from me. it couldn’t simply be because he fell. and if i got angry, i was told that those emotions were not healthy. they would ask, “how can you be around your children?” acs thinks, “i don’t like your behavior, the way you speak to me. i don’t like the way you parent.” i am an educated, working-class professional. this meant that acs was intimidated by my ability to read, write, and converse at a higher level of articulation than the stereotype of most parents whom they interact with. so, they considered my questions and my responses to emails to be defiant behavior. as a mother, i thought it was disrespectful that the judge would trust people around my children without providing copies of their qualifications or copies of their roles and responsibilities. i am a global project manager and i come with training and a professional skill set, so if i identify a goal, i am trained to follow up in communication with emails and to ask what we are trying to accomplish. i asked the judge, “if i hire a nanny, i have the ability to interview them, get their qualifications. why is it that you are putting state workers with me and i don’t have access to any of their information?” yet, they felt that i was being disrespectful. there was a lot of intellectual questioning and unfair treatment. the judge said, “she is very articulate.” when i asked to represent myself, the judge asked me if i could read legal books. while the judge allowed acs to dominate the courthouse, the judge silenced me. acs created fights or, really, confrontation, to then profile me as a violent person. but that doesn’t hold up. if i was violent, i would be doing time in criminal court. also, i am being tried twice for the same allegations. one system (the criminal system) dropped it, the other system (family court) picked it up and magnified it using their wild imagination. i was discredited, my character was slandered. they’re committing human abortions. taking someone’s family away is an abortion. and it is also my body, my choice. this is about reproductive rights. being on medication doesn’t mean that you are fine, being off medication doesn’t mean you are fine. if i had a disability, i would have had all of these other accommodations in the past thirty years of my life. i haven’t had that. but, after my brief encounter, i now have all these supposed ailments because cps said so, yet no accordant care or support. unverified by doctors and, still, cps has kept pushing these pathologies until we go to trial. it shouldn’t have to go this far, to the point that they are literally trying to break me down to say, “oh we got you.” but if i am crazy—you made me this way. 484 colum. j. race & l. [vol. 12:477 acs is trying to control my thoughts, actions, behavior, my walk— everything about me. they are really wanting to reinvent me to be a criminal, discreetly, so that they can take away my kids. and the more i rise and resist the status quo, the less i see my kids. now i have no visits at all, and it feels they are secretly moving towards a termination of parental rights. the mind games, the mental hazing, the gaslighting, the emotional and verbal abuse . . . i had never experienced this before. my mom and dad would never speak to me this way. why is it acceptable from this agency and nothing is done about it? at this time in 2021, my children have been moved to another state where they are living with their father. i have not seen them in person—sat with them, played with them, done schoolwork with them—in more than a year. i have also not had a trial, and instead have been presumed guilty and separated from my children based on the words of acs. acs labeled me dirty as if cleaning me up. i am not dirty, i am not a disease, i am not a body, i didn’t come in here empty-handed. you can’t break a person who is already built. because i came with a strong foundation. iii. ableist and prejudicial conceptions of disability in a carceral system ms. frunel’s case illustrates multiple problems with the family regulation system as it relates to parents with disabilities and to parents labelled as having disabilities. first, ms. frunel’s case exemplifies the extent to which system stakeholders maintain a biased and superficial understanding of disability that affirmatively harms parents and their families. second, her case demonstrates various ways that the medical model of disability is entrenched in the system. under the medical model, a hyper-focus on diagnosis can mean zeroing in on disability-related concerns and leaving other, more basic, concerns unaddressed. third, ms. frunel’s experience reveals that when caseworkers and other stakeholders fail to center parents and their needs, they can perpetuate a deep lack of trust. the failure to listen to parents can mean that courts and caseworkers disregard requests for specific services to the detriment of children and families. a. biased and superficial understandings of disability caseworkers, lawyers, judges, and other actors within the family regulation system frequently have only a limited understanding of the needs of parents with disabilities and penalize parents who identify as having a disability.14 as a result, parents seeking assistance or bearing a disability label often find themselves in an impossible situation. on one hand, if a child welfare investigator—typically someone who is not a doctor or mental health professional and who therefore lacks the qualifications to make a diagnosis of disability—imposes a label of disability based on their “concerns” or “observations,” and a parent resists services, that parent may 14 see robyn m. powell & sasha m. albert, barriers and facilitators to compliance with the americans with disabilities act by the child welfare system: insights from interviews with disabled parents, child welfare workers, and attorneys, 32 stan. l. & pol’y rev. 119, 147–155 (2020); traci laliberte, are we prepared? child welfare work with parents with intellectual and/or developmental disabilities, 7 j. pub. child welfare 633, 636–37 (2013); rocking the cradle, supra note 3, at 100. 2022] lived experience & disability justice 485 be penalized and denied a voice in the parenting of their child. indeed, parents who are identified as “flawed”—perhaps due to a prior diagnosis, an emotional reaction during the removal of a child, or the judgment of an unqualified caseworker—and do not seek to remedy or “fix” themselves, are labeled resistant, noncompliant, unstable, and/or uncooperative. alternatively, when parents are diagnosed with a disability, they are not provided with adequate supports or services, and they may even be penalized for exhibiting behaviors relating to that disability. for example, when a parent with an intellectual or learning disability fails to learn from the cookie cutter services offered to all parents, such as a parenting class that has not been adapted for a parent with a disability, the parent is not provided with an appropriately tailored service but far more often identified as “unteachable” or unable to learn and, ultimately, as unworthy of parenthood. like ms. frunel, they are frequently penalized for seeking services. moreover, they are commonly not permitted to rely on the natural supports in their lives. parents who may seek or need legitimate support— for example, those who rely on support staff to assist with grocery shopping or a family member for assistance with caretaking—are seen as frail, incapable, and broken. these parents, like sara gordon, a parent with an intellectual disability in massachusetts whose discriminatory treatment was the subject of an investigation by the u.s. department of justice (“doj”), are often assumed to be incapable of parenting by virtue of their diagnosis alone. in sara gordon’s case, she was denied the opportunity to rely on her family and service providers and, instead, forced to parent independently.15 after ms. gordon filed a complaint with the office of civil rights at the doj, the doj determined that the massachusetts family regulation investigators wrongfully assumed that ms. gordon was unable to learn how to safely care for her daughter because of her disability.16 she was also inappropriately denied the opportunity to receive meaningful assistance from her mother and other service providers during visits.17 in the case of ms. frunel, her caseworker’s suspicion that she might have a mental health diagnosis fundamentally altered the nature of her case. indeed, once her caseworker asked about a specific diagnosis and ms. frunel did not immediately deny it, the case morphed from the specific allegation that she had improperly disciplined her child, to a broader pathologizing condemnation of her mental health and general fitness to parent. when i first met with acs and they asked about my mental health, i did not know that when you are stigmatized and manufactured as having a mental health disability, you are facing a civil death penalty because they are essentially trying to slowly remove your children indefinitely, whether 15 letter from vanita gupta, acting ass’t att’y gen., u.s. dep’t of just. civil rights div., jocelyn samuels, dir., u.s. dep’t of health & hum. servs. off. for civil rights. et al., to erin deveney, interim comm’r, mass. dep’t of child. & fams. 2–3 (jan. 29, 2015), https://www.ada.gov/ma_docf_lof.pdf [https://perma.cc/8shr-gn5m] (reporting the doj’s conclusions from its investigation). 16 id. 17 id. 486 colum. j. race & l. [vol. 12:477 you are on medication or not on medication. it is the most painful and awful treatment because there is no statute of limitations or due process, and they are not factoring in criminal case outcomes. though i was charged with using excessive corporate discipline in the criminal case that was dismissed, i was labeled as having a mental illness when we got to family court. nothing about my mental health was in the petition, but acs was arguing that because i was bipolar and not being treated, i had abused my child. my choice to be honest—to admit that i didn’t know whether i would or would not have a mental health diagnosis—turned into a series of mental health evaluations. seven different evaluations so far. they said to go get a mental health evaluation but didn’t make a referral or tell me where i should go. so, first, i went to a therapist. she did not say that i had bipolar disorder; she said it was stress and anxiety. then acs said it had to be a medical doctor. i went to the doctor and shared the result, but then acs said they wanted to be included in the evaluation. my doctor said they don’t need to be included, and explained that evaluations are done directly with individuals, by themselves, and not with acs involved. that doctor had seen me in the past, for postpartum depression. acs specifically asked her if she thought i was bipolar. at first, she said she didn’t know, but acs wanted to know: is she bipolar or not? so, she changed her letter to acs to say that i “may or may not be” bipolar. i learned from the medical receptionist that acs was trying to commit the doctor to the diagnosis so much that eventually she stopped taking calls from acs. acs even tampered with my evaluation. one of the social workers at acs said, “according to the medical records, you need medication.” i said, “it doesn’t say that in any of my evaluations—where do you see that?” she said, “why do you think you are here, then?” that’s when attacks became about punishing me, not helping me. the social worker was punishing me for allegations of neglect. my third evaluation was from a black therapist. i was doing talk therapy with her. i wanted to see a culturally sensitive and culturally appropriate therapist who i connected with. i liked this therapist. my lawyer at the time told me i should see a white therapist. she said acs would like that more. i said, “absolutely not.” yet my lawyer continued to insist that it was what acs would like to see. at this point, the judge threw out the mental health evaluation from the medical doctor because acs was trying to coerce a diagnosis. so, i had to do another one. my fourth evaluation was at a hospital that another lawyer referred me to. they told me that i don’t need inpatient treatment or medication, but also said that “if you do need medication, we have someone who can help you with a medication plan.” i paid for these services on my own and was not reimbursed or otherwise compensated by the system. i had done all of these evaluations and completed my service plan within four months: parenting, anger management, and individual therapy all done in four months. i had done everything except take medication. i wanted to know, “when are we going to move from supervised visits to unsupervised?” acs said it would be indefinite. because i was not taking medication, i had an unlimited period of only supervised visits. 2022] lived experience & disability justice 487 b. reliance on the medical model of disability ms. frunel’s experience makes vivid the focus on diagnosis and medication that governs the lives of people labeled as having a disability in the family regulation system. indeed, the medical model of disability—long understood by advocates to erode personhood—is pervasive in the family regulation system. the medical model understands and explains disability according to whether a person carries a specific diagnosis or an “individual medical problem.”18 in contrast, the social model recognizes that disability is a social construction which exists within—and often because of—norms defined by broader society.19 importantly, “[i]n addition to pointing to the tangible environmental and structural changes that could be made to be more inclusive for people of differing body types, the social model of disability focuses attention on the attitudinal obstacles faced by people with non-standard bodies.”20 in applying the social model beyond the physical body, jamelia morgan has observed that the “social model locates the meaning and import of . . . differences, and perceived limitations, in societal barriers, attitudes, and responses to disability, and not solely in the individual’s biological attributes.”21 the medicalization of disability fits neatly with the view that disability is an individual pathology and encourages focus on personal failures rather than examination of conditions created by broader society. in ms. frunel’s case, the emphasis on her theoretical disability prompted acs to begin a long hunt for a diagnosis with a heavy emphasis on medication. this focus came at the expense of other aspects of her life and her relationship to her children. acs, her lawyers, and the court have entirely overlooked the realities of her life that were likely causes of distress or overwhelm, and that they ostensibly could have assisted with, such as: her ongoing divorce; her transition to single parenthood as a working mother; her history of domestic violence at the hands of her former partner; her extensive efforts to find her son appropriate educational services; and, perhaps most chillingly, her encounter with the system itself. in ms. frunel’s words: after four months in the system, i felt beaten into submission. i have talked with other parents who became suicidal and depressed, and who wanted to fight. i met these parents at a program for mothers. the program was still part of the system but allegedly there to help parents. when i think about that program, i think it is unfortunate that it was a service that was only provided after allegations were made, rather than one that was available to me before acs came into my life. services should have been provided to the community and at the schools beforehand, and acs should 18 elizabeth f. emens, framing disability, 2012 u. ill. l. rev. 1383, 1401 (2013); see also jamelia morgan, policing under disability law, 73 stan. l. rev. 1401, 1406 (2021) (offering a clear definition of the medical model and citing various other definitions). 19 morgan, supra note 18, at 1402. 20 sara goering, rethinking disability: the social model of disability and chronic disease, 8 current. revs. musculoskeletal med. 134, 135 (2015). 21 morgan, supra note 18, at 1407–08 (“treating disability as a social construction helps to emphasize its relational, contingent, fluid, and subjective nature.”) (citing miranda oshige mcgowan, reconsidering the americans with disabilities act, 35 ga. l. rev. 27, 90– 91 (2000)). 488 colum. j. race & l. [vol. 12:477 be held accountable for not providing them in december when they first came to my home. prior to coming into this case, i was spirited to conquer the world. now, i feel broken. i have anxiety attacks, post-traumatic stress disorder, nightmares, and things of that nature. what i didn’t have before, i am starting to feel now. it makes me second guess whether or not i should discuss my mental health with someone, particularly whether or not it can be weaponized against me. it makes me afraid to talk about it. when you go to a doctor, they are quick to put you on medication. and once you get labeled with bipolar disorder, it never goes away. the label remains the same, no matter what changes. what i find interesting is that “bipolar” is a quick umbrella term that both relies on stigma and is commonly used to advance stigma, particularly the stigma of an angry black woman who needs to be on medication because of two extreme personalities or mood swings. i don’t have depression, i don’t have anxiety, i am well aware of my environment, i eat well, and i have a great support team. because i speak another language, and also in another dialect, i may speak a lot more rapidly and switch up my tone if i am angry, but that is not an indication that i should be labelled as “bipolar.” c. the system’s failure to center parents the system’s general refusal to listen to and trust parents to be active participants in their own lives contributes to the lack of trust that many parents feel about their caseworkers and the broader system.22 it is also a missed opportunity to learn from parents about what it is they need. for parents with disabilities, the system’s failure to seek insights from parents themselves compounds the problems of bias and the lack of disability-related expertise that pervade the system more generally.23 ms. frunel’s case exemplifies the extent to which caseworkers fail to meaningfully engage with the very parents that the system professes to assist. her caseworkers did not recognize ms. frunel’s expertise related to the circumstances of her own life or to the kinds of support she might actually need. in her very first interaction with acs, ms. frunel requested assistance and was denied. instead, this initial investigation was closed.24 when acs returned to her life and accused her of engaging in corporal punishment, she once again sought assistance. this time, certain services 22 this dynamic may be due in part to the adversarial framework in which the system operates. mandatory reporting, for example, “establishes an adversarial relationship between the state and the parent at the outset of the relationship.” vivek sankaran, innovation held hostage: has federal intervention stifled efforts to reform the child welfare system?, 41 u. mich. j. l. reform 281, 285, 295 (2007). for further discussion of mistrust between parents and the state, see erin miles cloud, toward the abolition of the foster system, barnard ctr. for rsch. on women: scholar and feminist online (2019), http://sfonline.barnard.edu/unraveling-criminalizing-webs-building-police-freefutures/toward-the-abolition-of-the-foster-system/#identifier_48_4262 [https://perma.cc/ 9vhd-wjcm]. 23 for a discussion on the lack of training and expertise among family regulation investigators and case workers, see robyn powell et al., terminating the parental rights of mothers with disabilities: an empirical legal analysis, 85 mo. l. rev. 1069 (2020). 24 see infra part i (describing this initial investigation). 2022] lived experience & disability justice 489 were offered but only after acs sought the removal of her children in court and, again, without regard for ms. frunel’s perspective on what kinds of support she needed. when i met with my caseworker in 2019—at the meeting where she told me i didn’t need a lawyer—the caseworker told me, “we need to talk to you about strengths and weaknesses of services we could provide you.” and, of course, i was in need of services. i was so relieved when she talked about helping us. i thought, “okay, great, finally i can get some help.” i was estranged from my husband, who had been violent with me. of course, the divorce and the domestic violence had impacted not only me but also my children. at the same time, i had been trying to get department of education services for my son and counseling for all of us. i had been running around to different doctors and not getting any services, all as a newly single mother. the caseworker led me to believe that parenting classes would help with special needs parenting and single parenting. she also said that whether or not i did anything wrong, they wanted to make sure that i was aware of different disciplinary tools. for this reason, they asked me to take anger management classes. the meeting ended with her telling me that, just to make sure that there is no further tension, acs was asking that the children stay with my parents. i was comfortable with this, especially since they already stayed there when i went to work. she told me that i just needed to do these services and then i could get my children back. the next day, the caseworker told me to go to court. she took the very same paperwork that we filled out together and made it into a petition under article ten of the new york family court act.25 i told them i was sincerely in need of help, and this was interpreted as, “you are guilty, these are the services you need, and something is wrong with you if you can’t see that.” i had told the caseworker about the help i needed when she first came to my home, in 2018, and yet she didn’t offer me any services. why were these services not offered when i asked the first time around? why wasn’t i given preventative services when i asked for them? now, after a second call, after you have removed my children, you want to give me your services. i never knew that they were secretly interrogating me. iv. a vision for fundamental change and reforms to shrink the system as ms. frunel’s experience demonstrates, there are multiple ways in which the system is currently failing to support parents labeled as having a disability. it is in this context that we seek an alternative model for family well-being. we seek a model that is non-adversarial and supportbased. this call for a supportive rather than punitive system borrows both from the disability justice movement and the movement for black lives. according to the disability justice primer skin, tooth, and bone: the basis of movement is our people, “we work to meet each other’s needs as we build 25 n.y. fam. ct. act § 1101 (setting forth the procedures for “child protective” intervention and proceedings, including the petition). 490 colum. j. race & l. [vol. 12:477 toward liberation, without always reaching for state solutions which inevitably extend state control further into our lives.”26 likewise, the movement for black lives demands “investments in the education, health and safety of black people, instead of investments in the criminalizing, caging, and harming of black people.”27 inspired by these movements, our vision for a system that truly supports families involves direct investment in communities of color and those with disabilities. a system based in support would also make use of principles well understood in the disability community. supported decision-making,28 for example, draws on the idea that all people, regardless of disability status, require and are entitled to support, and that meaningful support of those who might not otherwise be deemed capable of making their own decisions will make real concepts of legal capacity.29 the central idea in these frameworks is meaningful interdependence that does not penalize the individual for seeking support or supplant individual autonomy to decide on the specific sources of support that they need and desire. the authors urge the adoption of a system that genuinely supports existing family units. the use of familyor community-based supports is rooted in trust that families themselves know what they need. even as we call for a radically different system, we recognize that there is much standing between a true re-envisioning of the system and the current adversarial system that exists within the carceral state. what follows here, then, are proposals for reform. in making these suggestions, we are mindful of the long-standing call for “non-reformist reforms” and have endeavored to offer such reforms.30 the following proposals are offered with knowledge and conviction that reduction of violence to communities of color requires shrinking, not merely reforming, the carceral state. nonetheless, as so many parents remain caught in the system, we believe these reforms are vital. these reforms connect to ms. frunel’s 26 disability justice primer, supra note 5, at 25. 27 invest-divest, movement for black lives, https://m4bl.org/policy-platforms/ invest-divest/ [https://perma.cc/8n94-g3gs] (advancing the policy platform of “investments in black communities, determined by black communities, and divestment from exploitative forces”) (emphasis added); see also dorothy roberts, abolishing policing also means abolishing family regulation, imprint, https://imprintnews.org/child-welfare-2/abolishingpolicing-also-means-abolishing-family-regulation/44480 [https://perma.cc/8z7j -fmmc] (“rather than divesting one oppressive system to invest in another, we should work toward abolishing all carceral institutions and creating radically different ways of meeting families’ needs.”). 28 supported decision-making is an emerging practice by which persons with intellectual, developmental, cognitive, and psychosocial disabilities can make their own decisions with the support of trusted persons in their lives. kristin booth glen, supported decision-making from theory to practice: further reflections on an intentional pilot project, 13 alb. gov’t l. rev. 94, 98 (2020). 29 see, e.g., robert dinerstein, implementing legal capacity under article 12 of the un convention on the rights of persons with disabilities: the difficult road from guardianship to supported decision-making, 19 hum. rts. brief 8, 9 (2012). 30 we understand the much-discussed concept of “non-reformist reform” as “reform focused on reducing the scale, power, tools, and legitimacy of the carceral state.” amna a. akbar, demands for a democratic political economy, 134 harv. l. rev. f. 90, 101 (2020) (citing various examples highlighting “decades of campaigns against carceral infrastructure”). at the same time, we are mindful that “reform projects are contradictory gambits if the aim is transformation: they always have the possibility of reifying the status quo.” id. at 103. 2022] lived experience & disability justice 491 experience and to our collective observations of the harms perpetuated by the current family regulation system. a. pretrial representation the first of the three reforms that we suggest today would mandate that all parents be provided with pretrial representation. parents deserve and need legal representation from the moment that acs appears at their doorstep, makes a phone call to their child’s school, or otherwise begins an investigation of abuse or neglect. as ms. frunel’s experience demonstrates, without representation in these early stages, parents can both misapprehend the stakes of the investigation and proceed under the false impression that there are no possible punitive outcomes associated with the investigation. just as likely, parents may not be aware that they have the right to exclude a caseworker from their home, to speak to a lawyer before consulting with a caseworker, to refuse an interview of their child, or any number of other possibilities.31 access to pre-petition representation is especially important for parents with disabilities. parents with disabilities, at least as much as any others, need to understand that they are not at the whim of child protective services (“cps”). moreover, as ms. frunel’s case reveals, decisions on whether or how to discuss concerns about mental health or other disabilities are complicated, nuanced ones that should be made with the consultation of an attorney who is well-versed in the relevant law and has experience navigating the ableism of the system. notice of their rights at the outset is integral for all parents, but especially parents with disabilities. at present, the vast majority of jurisdictions that provide legal representation for parents accused of abuse or neglect do not make this representation available for parents until after a petition is filed in court and the parent appears before a judge.32 this puts parents at a grave disadvantage, often leading them to make statements under the mistaken impression that the child protective investigator is there to help or support them, not to build a legal case that may well be used to remove a child from their care or otherwise intervene into their family life. moreover, it often 31 courts have held that caseworkers’ entry into families’ homes, and even caseworkers’ investigations involving children outside of their homes, is subject to the fourth amendment right against unreasonable searches and seizures. see, e.g., gates v. tex. dep’t of protective & regulatory servs., 537 f.3d 404 (5th cir. 2008) (caseworkers’ warrantless entry into homes to investigate child abuse); calabretta v. floyd, 189 f.3d 808 (9th cir. 1999) (same); schulkers v. kammer, 955 f.3d 520, 533–38 (6th cir. 2020) (social workers’ warrantless in-school interviews of children). see also doriane lambelet coleman, storming the castle to save the children: the ironic costs of a child welfare exception to the fourth amendment, 47 wm. & mary l. rev. 413, 471 (observing that the federal circuit courts “agree that maltreatment investigations constitute fourth amendment ‘searches’ and ‘seizures’”). but see id. at 430–31 (observing and problematizing the fact that over ninety percent of investigations are conducted with the parents’ apparent consent, contending that most families do not know that they have the right not to talk to investigators). 32 see, e.g., n.y. fam. ct. act § 262 (2019) (requiring parents to appear in court to have an attorney assigned). 492 colum. j. race & l. [vol. 12:477 means that parents lack representation for the “days, weeks, or sometimes months after having their children taken into state custody.”33 access to pre-petition legal services would also allow parents the opportunity to begin to solve legal problems in ways that might prevent the need for the involvement of the family regulation system in the first place, for example by securing public benefits or access to shelter. as the 2021 call to action from the nonprofit organization children’s rights recently articulated, representation for parents at the outset of an investigation could not only “significantly reduce and protect against the unnecessary involvement of black families in the child welfare system,” it would “also ensure that black parents’ voices are heard during an investigation.”34 though some states have taken a more expansive view of a parent’s right to counsel, providing for example that a parent has a right to consult a lawyer from the very outset of a case,35 parents do not typically learn of their right to a lawyer until after appearing in court. fortunately, there are signs that more jurisdictions will begin to offer pre-petition representation. in june 2020, the trump white house issued an executive order requiring federal guidance to states “regarding flexibility in the use of federal funds to support and encourage high-quality legal representation for parents and children, including pre-petition representation.”36 the executive order highlights that this measure would not only work to prevent removals and work towards reunification but also “ensure that [parent] voices are heard and their rights are protected.”37 likewise, the new york state office of indigent legal services (“ils”) has identified representation during cps investigations as a best practice.38 a recent 33 funding announcement, n.y. state off. of indigent legal servs., second upstate model family representation office grant: request for proposals 10 (apr. 6, 2021) [hereinafter request for proposals], https://www.ils.ny.gov/files/rfp-second%20 upstate%20model%20family%20representation%20office%20grant%20040621.pdf [https://perma.cc/by7w-jda8] (citing mary b. goodhue, jules kerness & constance r. warden, u.s. dep’t of health & hum. servs., no. 126665, child protection and the family court: a study of the processes, procedures, and outcomes under article ten of the new york family court act 131–32 (1989)) (presenting context for the importance of family representation offices providing “timely” legal representation to parents in child protective proceedings). 34 fighting institutional racism at the front end of the child welfare systems: a call to action to end the unjust, unnecessary, and disproportionate removal of black children from their families, children’s rts. 18 (2021), https://www.childrensrights. org/fighting-institutional-racism-at-the-front-end-of-child-welfare-systems/ [https://perma. cc/mkg5-r4jb]; see also id. at 29 (“these services should be independent from the child welfare agency, should not rely on referrals from the agency for locating families in need of services, and should not result in any additional monitoring of the family by the agency.”). 35 see id. at 20 (presenting an overview of certain states’ constitutional law more expansively guaranteeing the right to counsel for parents). 36 exec. order no. 13,930, 85 fed. reg. 38,741 (june 24, 2020); see also admin. for child. & fams., u.s. dep’t of health & hum. servs., acyf-cb-im-21-06, utilizing title iv–e funding to support high quality legal representation for children and youth who are in foster care, candidates for foster care and their parents and to promote child and family well-being 7, 10–11 (jan. 20, 2021), https://www.acf.hhs.gov/sites/default/files/ documents/cb/im2106.pdf [https://perma.cc/4gnm-fqm4]. 37 exec. order no. 13,930, 85 fed. reg. 38,741 (june 24, 2020). 38 n.y. state off. of indigent legal servs., standards for parental representation in state intervention matters 7–8 (2015), https://www.ils.ny.gov/ 2022] lived experience & disability justice 493 funding announcement from ils to create the second of two model family representation offices requires the model office to provide representation to parents during investigations.39 b. family miranda hand-in-hand with parents’ right to timely representation is parents’ right to be warned, at the outset of the investigation, of the stakes and consequences of the investigation, as well as their rights to decline to participate and to speak with a lawyer. legislation establishing a so-called family miranda warning would require state agents and case workers to communicate to parents their rights at the start of a cps investigation, including their right to an attorney.40 like pre-petition representation, a family miranda warning at the outset of an investigation would empower parents to meaningfully exercise their rights and to take on active, confident roles in their representation. a warning would give them greater knowledge of their rights and a stronger voice in child protective proceedings. a family miranda warning would be specifically impactful for parents with disabilities who, because of the lengthy history of discrimination in our country, may have been given fewer opportunities to act as autonomous individuals who make their own decisions.41 significantly, there is no financial cost to requiring that parents be informed of their rights, and any such legislation would not lead to the creation of new rights. instead, a family miranda warning would allow parents to know and understand the contours of their interaction with the state and would prevent against affirmative or tacit misrepresentations by case investigators. any movement for requiring a family miranda warning in child protective investigations will likely need to be legislative in nature because courts have been less than receptive to recognizing it as a constitutional requirement.42 during the 2020–2021 new york state legislative session, the parent legislative action network advocated for legislation that would require a family miranda warning to be provided orally and in writing to parents and caretakers who are the subject of a cps investigation. the bill files/parental%20representation%20standards%20final%20110615.pdf [https://perma.cc/ e43e-kllr]. 39 request for proposals, supra note 33, at 11. 40 as referenced in the subheading to this section, the concept is based on similar rights in criminal cases established by the u.s. supreme court in miranda v. arizona, 382 u.s. 436 (1966); see also urban matters, why a child welfare ‘miranda rights’ law is essential: a q&a with advocate and organizer joyce mcmillan, new sch. ctr. for nyc affs. (june 2, 2021), https://www.centernyc.org/urban-matters-2/2021/6/2/why-a-childwelfare-miranda-rights-law-is-essential-a-qampa-with-advocate-and-organizer-joycemcmillan [https://perma.cc/wc4q-htcf]. 41 see, e.g., kristin booth glen, supra note 28, at 120 (“education for young people with [intellectual and development disabilities (“i/dd”)] seldom includes explicit instruction on making decisions; rather, to the extent that a stated goal is self-determination, the emphasis is on “goals,” often with professionals and/or family members making the decisions thought necessary for the person with i/dd to reach those goals.”) 42 see, e.g., in re m.h., 163 ohio st.3d 93, 2020-ohio-5485, 168 n.e.3d 439 (finding that questioning by child abuse investigator did not violate suspect’s miranda or federal due process rights, because investigator was neither a law enforcement officer nor acting under direction or control of police, and confession obtained was not causally related to any conduct of police). 494 colum. j. race & l. [vol. 12:477 was introduced in both the state senate and assembly, but did not pass this session.43 c. independent review board we advocate for the creation of a unit, housed outside of the family regulation system, to receive complaints about caseworkers and failures of the system. at present, complaints made about a specific caseworker, foster care agency, or other actor in the system are funneled through other employees and staff of the very same agencies about which the complaint is focused. for example, in new york city, acs advises parents who do not believe their rights are being respected to first “talk to your acs caseworker, your foster care caseworker or social worker.”44 other options are to “contact the acs office of advocacy and make a complaint” or to speak to one’s own lawyer.45 in tennessee, the department of children’s services (“dcs”) advises parents to raise complaints with “respect to infringement of . . . rights” to the dcs customer relations unit.46 these internal avenues for complaints leave open the real possibility of bias in the review and handling of complaints. parents may also have concerns about the potential for retributive or punitive responses by particular caseworkers if and when a complaint is made. moreover, there is little transparency in how these complaints are handled. our vision for an independent review board in the family regulation system is inspired by the new york city civilian complaint review board (“ccrb”), an independent agency “empowered to receive, investigate, mediate, hear, make findings, and recommend action on complaints against new york city police officers.”47 among the primary goals of the ccrb is to conduct investigations impartially.48 to that end, the ccrb is composed entirely of civilian employees. it endeavors to investigate all allegations of misconduct and recommend “fair and appropriate” disciplinary actions whenever misconduct is found.49 recent criticism of the ccrb has noted a “fatal flaw” in the oversight process: though the agency is entirely made up of civilians, the nyc police commission has total authority to disregard the ccrb’s disciplinary recommendations.50 we believe that an effective independent 43 s.5484-a, 2021–2022 s. reg. sess. (n.y. 2021); a.6792, 2021–2022 assemb. reg. sess. (n.y. 2021). 44 know your rights, nyc admin. for child. servs., https://www1. nyc.gov/site/acs/youth/know-your-rights.page [https://perma.cc/3wj3-fduk]. 45 id. 46 tenn. dep’t of child. servs., client’s rights handbook 4 (2016), https://janespeaksup.com/wp-content/uploads/2019/03/tn-dcs-client-rights-current.pdf [https://perma.cc/2hq7-q2me]; customer relations, tenn. dep’t of child. servs., https://www.tn.gov/dcs/contact-us/customer-relations.html [https://perma.cc/ext5-m4my]. 47 about ccrb, nyc civilian complaint rev. bd., https://www1.nyc.gov/ site/ccrb/about/about.page [https://perma.cc/5gdy-4685]. 48 id. 49 id. 50 e.g., carlton brown et al., putting ‘civilian’ back in the civilian complaint review board, city limits (dec. 18, 2020), https://citylimits.org/2020/12/18/opinion-puttingcivilian-back-in-the-civilian-complaint-review-board/ [https://perma.cc/da8q-pjfa] (noting that over the past two decades, the nypd has “reduced or rejected the ccrb’s recommendations for serious discipline in about 71 percent of 6,900 serious misconduct charges that have been brought against officers”). 2022] lived experience & disability justice 495 review board charged with oversight of the child protective investigators and foster care agencies would not only need to be fully independent in its staffing but also have the power to mete out appropriate, fair discipline in the event of misconduct. the creation of such an independent board would allow parents with and without disability to confidently report concerns about violations of their rights or about other inappropriate behavior, without fear of bias or retribution. for parents with a disability, or those labeled as having a disability, an independent board would be a safe and secure place to report concerns of discrimination, inappropriate medicalization of disability, or wrongful denial of accommodations. to ensure that the board itself would not perpetuate ableist standards, it would be necessary to carefully train board members and to ensure that persons with disabilities are well represented on the board. an independent review board charged with overseeing the behavior of foster care agency staff and caseworkers could transparently handle complaints and create greater accountability among these actors. v. conclusion we imagine a system where parents labeled as having a disability who seek support or assistance are not punished for their differences and their needs, but are instead supported. we seek not just the inclusion of parent voices but the centering of parent experiences, and respect for their intimate knowledge of their own and their children’s needs in the creation of social supports. the reforms we briefly outline here are only the beginnings of larger change and are far from the total reimagination that we believe is necessary to realize a radically different system of support. a true reimagining of the family regulation system for parents with disabilities or those labeled as having a disability will require reckoning with ableism inherent in the system and embracing the disability justice framework. we envision a system of support that is organized around “leadership of those most impacted” and a recognition that “access needs aren’t shameful.”51 indeed, meaningful, non-punitive support for parents, especially parents with a disability label, will mean that “we can ask that our needs be met without compromising our integrity, we can balance autonomy while being in community, we can be unafraid of our vulnerabilities, knowing our strengths are respected.”52 51 disability justice primer, supra note 5, at 23, 26. 52 id. at 26. i. introduction ii. coming under the family regulation system iii. ableist and prejudicial conceptions of disability in a carceral system a. biased and superficial understandings of disability b. reliance on the medical model of disability c. the system’s failure to center parents iv. a vision for fundamental change and reforms to shrink the system a. pretrial representation b. family miranda c. independent review board v. conclusion columbia journal of race and law vol. 11 july 2021 no. 3 article twentieth century black and native activism against the child taking system: lessons for the present laura briggs* this article argues that the historical record supports activism that takes the abolition of the child welfare system as its starting point, rather than its reform. it explores the birth of the modern child welfare system in the 1950s as part of the white supremacist effort to punish black communities that sought desegregation of schools and other public accommodations; and native communities that fought tribal termination and the taking of indigenous land. beginning with the “segregation package” of laws passed by the louisiana state legislature in 1960, the article shows how cutting so-called “illegitimate” children off the welfare program, called aid to dependent children, (adc) and placing those whom their mothers could no longer support in foster care was an explicit response to school desegregation. while the national urban league initially mounted a formidable national and international mutual aid effort, “operation feed the babies,” its ultimate response—appealing to the federal government to reform the welfare and child welfare systems— backfired in disastrous ways. the eisenhower administration responded by providing federal funds for a program it called adc-foster care, giving states resources to dramatically expand the foster care system, resulting in hundreds of * laura briggs is professor of women, gender, sexuality studies at the university of massachusetts. she received her ph.d. in american studies from brown university. this article is for all parents who have lost their children, and all children separated from parents. 612 colum. j. race & l. [vol. 11:611 thousands of black children in foster homes within a year. native tribal nations, in contrast, fought throughout the late 1960s and 70s to get states out of indian child welfare. after a decade of activism, in 1978, they succeeded in passing the indian child welfare act, which put american indian kids under the jurisdiction of tribal courts instead of the states’. over the next decades, the number of native children in foster care shrank dramatically. while history rarely offers clear guidance for the present, these two stories strongly suggest the limits of reform for state child welfare systems, and the wisdom of contemporary activists who call for abolition. 2021] black and native activism 613 i. introduction ............................................................................. 614 ii. black freedom, welfare, and illegitimacy .......................... 618 iii. taking children ................................................................... 621 iv. the indian child welfare act ............................................. 627 v. history’s lessons ................................................................... 636 614 colum. j. race & l. [vol. 11:611 i. introduction in her keynote for this conference,1 dorothy roberts walks us through the arguments against reforming the foster care system, which are in many ways akin to those against continuing to reform the police. in doing so, she joins many scholars and activists voicing similar frustrations with what seems to be an entrenched, unmovable child welfare system that engages in racialized harm to families by disproportionately separating black, indigenous, latinx, and impoverished white children from their parents, kin, and caregivers.2 roberts identifies the ways that efforts to rethink how we support and care for families mirrors activism for prison abolition and defunding the police. when we allow ourselves to be led by the inspiration of the radical, creative imagination of these movements, and how they have caught fire in recent years, we can dream bigger and imagine caring for children without the involvement of a racist state that has demonized impoverished families for generations. it is important, roberts argues, to listen to the growing radicalism of the analysis of parents and activists involved with the system. they are not calling for reform, she argues; they are calling for an end to the system as we know it. as we consider the current abuses of the child welfare system, it may be useful to know that black racial justice and native sovereignty activists have confronted the foster care system before in ways that offer powerful lessons for the present. 1 dorothy roberts, how i became a family policing abolitionist, 11 colum. j. race & l. 455 (2021). 2 e.g., the movement for black lives vision statement in 2020 includes a call to “[e]liminate the foster system’s power to permanently and irreversibly destroy black families through termination of parental rights,” a political demand not present in the 2016 statement. end the war on black people: end the war against black women, movement for black lives, https://m4bl.org/policy-platforms/end-the-war-black-women, (last visited jan 8, 2021); erin cloud, rebecca oyama, & lauren teichner, family defense in the age of black lives matter, 20 cuny l. rev. f. 68 (2017), http://www.cunylawreview.org/family-defenseblack-lives-matter/ [https://perma .cc/be2m-79ex]; michael fitzgerald, rising voices for ‘family power’ seek to abolish child welfare system, imprint (2020), https://imprintnews.org/childwelfare-2/family-power-seeks-abolish-cps-child-welfare/45141 [https://perma.cc /n5p5-krgu]. see also the center for social policy statement on its commitment to work “to create a society in which the forcible separation of children from their families is no longer an acceptable solution for families in need.” ctr. for study social pol’y, https://cssp.org/our-work/project/upend (last visited june 1, 2021). 2021] black and native activism 615 this article tells two stories. in the 1950s and 60s, the national urban league confronted a child welfare system that was used as part of the white south’s “massive resistance” to school desegregation, taking black children away from their parents to terrorize communities fighting for civil rights.3 while the urban league’s mass mobilization was extraordinary, its activists ultimately compromised with the system, and agreed to reform it instead of abolishing it. in doing so, the urban league became complicit in supporting a federally funded, state-sanctioned child welfare system. within a year, it was clear that this approach had been disastrous. the child welfare system grew in size and scope, resulting in a massive increase in the number of black children entering foster care.4 reform, then, brought new money into the system, allowing states to take more children, particularly from impoverished black single mothers. in contrast, activists for native sovereignty largely refused reform, insisting that state child welfare workers get off reservations and out of native families.5 for at least a decade, the number of native children in out-of-home care shrank. history confirms the intuition and experience of 21st century activists: working to end the child welfare system can accomplish a great deal, while every compromise with the child welfare system makes it stronger, and such reform leads it to break up more families. 3 see, taryn lindhorst & leslie leighninger, “ending welfare as we know it” in 1960: louisiana’s suitable home law, 77 soc. serv. rev. 564–84 (2003). 4 claudia lawrence-webb, african american children in the modern child welfare system: a legacy of the flemming rule, in serving african american children: child welfare perspectives 9–30 (sondra jackson & sheryl brissett-chapman eds., 1998). we are in a position to understand this acquiescence as never before, as it echoes the frustration and fury of current “defund the police” activists in the aftermath of the obama-era police reforms in minneapolis: never agree to anything that ends with more money for a system designed to uphold white supremacy. e.g., philip v. mcharris & thenjiwe mcharris, opinion, no more money for the police, n.y. times (may 30, 2020), https://www.nytimes.com/2020/05/30/opinion/george-floyd-police-funding.html [perma.cc/39kv-s8gm]; mariame kaba, yes, we mean literally abolish the police, opinion, n.y. times (june 12, 2020), https://www.nytimes.com/2020 /06/12/opinion/sunday/floyd-abolish-defund-police.html [https://perma.cc/8h5chqk4]. 5 the destruction of american indian families (steven unger ed., 1977). 616 colum. j. race & l. [vol. 11:611 while the child welfare system in the 1950s and 60s was dramatically smaller than the present one,6 it was a commonplace site of political concern in native and black newspapers, and a subject of forceful political campaigns. the passage of the indian child welfare act in 1978 and the national association of black social workers 1972 “preserving families of african ancestry” statement have been (mis)remembered for their impact on adoption and demonized by the political right— as well as liberals like harvard law professor elizabeth bartholet. but viewed in their actual context, these actions were part of long campaigns against the operation of foster care systems.7 this article will focus on that earlier generation’s fights, particularly their insistence that child “welfare” was a political project of white supremacy and disruption of native sovereignty. this piece begins with an unorthodox history of the civil rights era, focused on black single mothers and their children. in the 1940s and 50s, as now, single mothers were particularly vulnerable to poverty, and black and native mothers exceptionally so. indeed, the middle of the 20th century was worse than the current moment for single mothers, as post-war defense plant layoffs explicitly targeted women to make room for men coming home from war, and the black women who had followed the economic expansion of world war ii to get out of the apartheid south—with its lynching and other racial violence— were suddenly unemployed and unemployable in a racist job market.8 new deal and post-war government programs to raise up a middle class—such as housing loans, gi bill grants for a 6 the child welfare system doubled in size in the late 1980s and 90s with the racially targeted invention of the “crack baby.” see my account of this history in laura briggs, orphaning the children of welfare: “crack babies,” race, and adoption reform, in outsiders within: writing on transracial adoption 75-88 (jane jeong trenka et al., 2006); laura briggs, somebody’s children: the politics of transracial and transnational adoption 97–105 (2012); laura briggs, taking children: a history of american terror 106–12 (2020). 7 see, e.g., ensuring equal protection for native american children, goldwater inst., (mar. 15, 2021) https://goldwaterinstitute.org/indian-childwelfare-act [perma.cc/6gym-8ekl]; laura briggs, somebody’s children, 11 j.l. & fam. stud. 373 (2008). see also elizabeth bartholet, where do black children belong? the politics of race matching in adoption, 139 u. pa. l. rev. 1163–256 (1991). 8 many historians have told this story. for a particularly clear and wellresearched version, see annelise orleck, storming caesar’s palace: how black mothers fought their own war on poverty (2005). 2021] black and native activism 617 college education, the building of the suburbs—by design excluded african-american men and nearly all women of any racial group. women were supposed to be dependent on a male breadwinner, black folks were supposed to work in the fields picking crops or cleaning white folks’ homes, and indians were supposed to vanish.9 in this same period, federal recognition of many tribal nations was terminated, and native people were relocated in nuclear family groups to cities as a result of the federal government’s abandonment of its treaty obligations. poverty in native communities, federal policy-makers insisted, was not caused by centuries of settler colonialism and indian wars, but rather that native people lived far from meaningful employment opportunities in urban centers.10 so while the post-war period saw unprecedented economic growth and prosperity for predominately white families as a result of government programs, the federal government’s institutionalization of nuclear families and female dependency on male breadwinners, the rising tide of inequality left black and indigenous people under water. the growth of welfare programs to support widowed, divorced, and unmarried mothers with children initially excluded largely numbers of people of color. once they were included, the political right attacked these programs viciously, arguing that the policies promoted laziness.11 arizona and nevada refused to participate in the federal aid to dependent children (adc) program in order to evade paying benefits to native mothers. state leaders justified refusing federal money by insisting native people had no right to those dollars by insisting that those living on reservations were not 9 a compact account of the whiteness of the post-world war ii programs can be found in george lipsitz, the possessive investment in whiteness: racialized social democracy and the “white” problem in american studies, 47 am. q. 369–387 (1995). on the gendered dimensions of postwar federal policy, see, e.g., melissa e. murray, whatever happened to g.i. jane: citizenship, gender, and social policy in the postwar era, 9 mich. j. gender & l. 91 (2002). on the persistence and long durée of the vanishing indian trope, see jean o’brien, firsting and lasting: writing indians out of existence in new england (2015). 10 ted jojola & timothy imeokparia, fitting a square peg in a round hole: the history of tribal land-use planning in the united states, in the world of indigenous north america (robert warrior ed., 2014). 11 winifred bell, aid to dependent children (1965). 618 colum. j. race & l. [vol. 11:611 u.s. citizens and didn’t even speak english.12 conservatives also sought to shrink, and even eliminate federal and state programs that supported single mothers and children of color, saying that they were unworthy of community support, that mothers were immoral, and the children were, in the derogatory word of the period, “bastards”—fatherless.13 ii. black freedom, welfare, and illegitimacy the context of the right-wing attacks on welfare and “outof-wedlock” babies was brown v. board of education.14 the naacp brought this case to the supreme court to end segregation in all public accommodations by focusing narrowly on black children and schools. seeking to overturn plessy v. ferguson,15 lawyers for the group avoided using a black man like homer plessy as plaintiff—always already damned in racist discourse as a would-be rapist—focusing instead on adorable children like elementary student linda brown. white supremacists responded by doubling down on their demonization of black children as “bastards,” the product of illicit sex. while much church-based civil rights activism cultivated the appearance of demonstrators in their “sunday best” and a politics of respectability, white segregationists sought to draw attention to the most marginalized and least defended. u.s. representative robert byrd, who coined the term “massive resistance” to refer to the white south’s response to school desegregation, also gave us the phrase “welfare abuse” to refer to black women supposedly grifting off the system. he claimed before congress that 60% of welfare cases were fraudulent, offering evidence that women on welfare were working—as domestics, child minders, and sex workers—and that they had men (“paramours”) in their homes and beds who should be 12 wilbur j. cohen, public assistance provisions for navajo and hopi indians: public law 474, soc. sec. bull. 8–10 (1950); deanna m. lyter, domination, regulation, and resistance: the impact of aid to dependent children and tribal law on white mountain apache women, 1934–60 (dec. 6, 2002) (ph.d. dissertation, american university) (on file with author). 13 regina g. kunzel, fallen women, problem girls: unmarried mothers and the professionalization of social work, 1890–1945 (1993); rickie solinger, wake up little susie: single pregnancy and race before roe v. wade (1992); jill quadagno, the color of welfare: how racism undermined the war on poverty (2nd ed. 1996). 14 347 u.s. 483 (1954). 15 163 u.s. 537 (1896). 2021] black and native activism 619 supporting them and their “illegitimate” children.16 the more african-americans fought for civil rights, the more officials cut welfare for impoverished black women and children. white supremacists used poverty and the desperate struggles of black single mothers to keep children housed, clothed, and fed to try to break the community’s revolt. according to one black leader, “the white landlords are being overheard to say now more and more when negroes ask for assistance, ‘let the naacp support you this winter.’”17 in 1954, within days of brown v. board of education ordering the desegregation of schools, the state legislature of mississippi attached a rider to an appropriations bill cutting children off welfare if their mothers failed to keep a “suitable home,” decrying common law marriage—poor people’s marriage—as “an illicit relationship or promiscuity” and a threat to “civilization.”18 according to the clarion ledger-jackson daily news, mississippi used this law to deny 8,392 children welfare between 1954 and 1960.19 a state legislator in mississippi, backing a related, but failed legislation to sterilize mothers who had borne three illegitimate— explained that, “when the cutting starts, they [black people] will head to chicago.”20 the state legislature believed they could drive black families out of mississippi to northern cities to prevent “bastard” children and their siblings from attending school. those who could not gather resources to move, legislators hoped, would nevertheless be forced to keep their children home—without resources to afford shoes or school clothes. a study conducted by several colleges in mississippi in 1957 found that the legislation had the intended racially differentiated effect: of the 323 families contacted, only three white families had been cut off for reasons of illegitimacy. the study also found that being denied welfare (alongside the larger context of black poverty, poor health care, and substandard housing in mississippi) had left mothers and 16 gwendolyn mink & rickie solinger, welfare: a documentary history of politics and policy 217–222 (2003). 17 lindhorst & leighninger, supra note 3, at 15. 18 bell, supra note 11, at 96–100. 19 mink & solinger supra note 16; solinger, supra note 13. 20 student nonviolent coordinating committee, genocide in mississippi, reprinted in print culture of the civil rights movement, 1950–1980, tul. u. digit. libr. (mar. 15, 2021), https://digitallibrary.tulane.edu/islandora/object/tulane%3a21196/datastream /pdf/view [https://perma.cc/u3v9-b56b]. 620 colum. j. race & l. [vol. 11:611 children in appalling situations. it also underscored the sexual violence that gave rise to “illegitimacy.” as one of the authors of the mississippi report noted in a case report on a mother who had been cut off from welfare: [one] former recipient of adc [aid to dependent children] is in very severe circumstances . . . her house is located in the middle of a cotton patch, and as is typical of such houses, it is old, crudely constructed, and rotting away. seven of her children are known to be illegitimate. the oldest child, one of the two legitimate ones, was raped at school and now has an illegitimate child of her own.21 it bears noting how hard the community worked to keep mothers and children fed, although everybody around them was impoverished, too. while this mother and her ex-husband were separated, he, a sharecropper, planted and worked a crop for her and the children. the caseworker also noted the mutual aid enabled them to keep body and soul together, “when [another] mother was in the hospital, some of her colored neighbors sent her an occasional fifty cents . . . she was not so worried about clothing [because her sister sent her hand-me-downs], but when the children cry for food, that does bother her.”22 within a few years, five other states–georgia, florida, virginia, arkansas, and texas–followed mississippi’s lead. in arkansas in 1957, at the height of the school desegregation crisis at central high school in little rock, governor orville faubus enacted a “suitable home” regulation to remove black children from the welfare rolls. he argued that adc “rewarded sin.”23 looking back at his administration in 1960, he proudly asserted that “8,000 illegitimate children were taken off the welfare rolls during my term of office” as a result of the suitable home rule.24 in alabama, in the midst of black birmingham’s rebellion, between 1957 and 1967, the city of birmingham decreased its total expenditures on welfare from $31,000 to $12,000 a year.25 21 see bell, supra note 11, at 107. 22 bell, supra note 11, at 103. 23 briggs, taking children, supra note 6, at 37. 24 id. at 107. 25 robin d. g. kelley, race rebels: culture, politics, and the black working class 95 (1996). 2021] black and native activism 621 iii. taking children some “suitable home” rules went further—not just leaving impoverished black families to starve, but actively enabling courts and welfare workers to take children. in 1959 in tennessee and 1960 in florida, state legislatures enacted new “suitable home” statutes. in florida, common law marriages previously recognized by the state became “illicit relationships,” and children were retroactively made “illegitimate.” both statutes required welfare case workers to pressure mothers to “voluntarily” relinquish their children to a relative if they were denied adc. if mothers refused, their cases were referred to juvenile court for child neglect.26 florida social workers conducted a study in 1960 on the effects of the law. from it, we learn that state welfare workers challenged the “suitability” of 13,000 families, of which only 9% were white, even though white families made up 39% of the total caseload.27 in the first year of the policy, 2,908 families were asked to place their children with relatives, while a similar number were given trial periods to reform the “moral environment” of their homes. to the surprise of welfare workers— reared on an old, self-justifying belief from slavery times that black women had little maternal feeling, and that it was customary among african-americans to circulate children among relatives—only 186 families being starved by the welfare system voluntarily relinquished their children. of the 24 who had at the time of the study already been referred to juvenile court, only three lost their children,28 suggesting that the children were not being abused or neglected, despite state efforts to punish mothers receiving state welfare checks.. another 3,000 families “voluntarily” withdrew from the welfare program rather than lose their children.29 while we have fewer records of what happened in tennessee, the “voluntary relinquishment” program worked the same way—mothers could keep their children by withdrawing 26 bell, supra note 11, at 124–36. 27 id., at 124–33 (citation omitted). 28 this is certainly an undercount, since the pace of court hearings was glacial, and the report covered less than the first full year after the enactment of the suitable home rule. 29 id., at 124–33 (citation omitted). 622 colum. j. race & l. [vol. 11:611 their applications for adc.30 while the situation in the first seven31 states that enacted “suitable home” rules in response to brown was dire for the families involved, the policies barely made the news. this is familiar; u.s. publics largely ignored the consequences of the termination of afdc in 1996, despite studies that have shown increased rates of death, mothers scrounging in dumpsters to feed their children, and women pushed back into violent relationships with partners without the afdc transitional safety net.32 in the 1950s, too, stories of impoverished black mothers pushed off welfare were of little interest, except to the case workers who pressured them to relinquish, or refer their families to juvenile court as neglectful, and the judges who took their children. all of that changed, however, in louisiana. the use of welfare restrictions in louisiana to punish black communities fighting to desegregate schools and public accommodations not only made the news, but also became an issue of national and even international concern. when confronted with a court order to desegregate schools in new orleans in 1960, the governor of louisiana, jimmie davis, and the state legislature, went into extraordinary session and announced a “segregation package” of new laws designed to stop the order, create chaos, and terrorize black communities. nearly all the bills were immediately struck down by a federal judge, including bills that aimed to: freeze school transfers; abolish the school board; deny accreditation to integrated schools; strip all teachers in integrated schools of their certification; eliminate the requirement that children attend school; grant state police special powers; and deny that the state of louisiana was subject to federal law. yet the “suitable home” rule designed to cut 23,000 “illegitimate” black children from the 30 id., at 124–25. 31 georgia, florida, virginia, arkansas, texas, mississippi and tennessee. 32 jason deparle, welfare limits left poor adrift as recession hit, n.y. times (apr. 8, 2012), https://www.nytimes.com/2012/04/08/us/welfare-limitsleft-poor-adrift-as-recession-hit.html [https://perma.cc/uuv4-g8th]; dána-ain davis, battered black women and welfare reform: between a rock and a hard place (2006); jonathan leonard & alexandre mas, welfare reform, time limits, and infant health, 27 j. health econ. 1551 (2008); richard m. tolman & jody raphael, a review of research on welfare and domestic violence, 56 j. soc. issues 655 (2000); elizabeth t. wilde et al., impact of welfare reform on mortality: an evaluation of the connecticut jobs first program, a randomized controlled trial, 104 am. j. pub. health 53 (2013). 2021] black and native activism 623 welfare rolls was, alone, allowed to stand.33 the “suitable home” rule cut nearly a third of the state’s welfare caseload, and as in other southern states, the overwhelming majority of those targeted were black. only 5% of those affected were white.34 among louisiana’s black residents, the suitable home rule was clearly understood as punishment for school desegregation, designed to push those who could to migrate. a black child welfare worker described the legislature’s mood as “vindictive,” and they were clearly intent on hurting black residents in retaliation for school desegregation.35 it was, she said, a “tit for tat.”36 if black children were to be the civil rights warriors who desegregated public accommodations, and if their mothers wanted to refuse second class status in exchange for inadequate charity from state officials, white supremacists sought to make them pay. even though the louisiana law did not require welfare workers to take the children of those who lost their aid, as the florida and tennessee laws did, that was the outcome. as one black child welfare worker remembered forty years later: we would get referrals [to take children into foster care] after public assistance cut them off, and they weren’t able to feed their kids. i remember several families who were referred—the women had to give up their kids if they couldn’t care for them. i never removed kids from their families because of poverty—but i know other workers who did. i remember one woman who loved her kids. she 33 the text of the federal court ruling invalidating louisiana integration curbs, n.y. times, (dec. 1, 1960), http://timesmachine.nytimes.com /timesmachine/1960/12/01/99898337.html. 34 louisiana drops 23,000 children on relief rolls as illegitimates, n.y. times, (aug. 28, 1960), http://timesmachine.nytimes.com/timesmachine /1960/08/28/99951830.html; louisiana explains relief cuts to u.s., n. y. times, (sept. 14, 1960), http://timesmachine.nytimes.com/timesmachine/1960/09/15 /99802841.html; u.s. to study curbs in louisiana relief, n. y. times, (oct. 3, 1960), http://timesmachine.nytimes.com/timesmachine/1960/10/04/99958155 .html. 35 lindhorst & leighninger, supra note 3, at 568 (interviewing gale durham and millie charles). 36 id., at 564–84. see also mink & solinger, supra note 16, at 195; lisa levenstein, from innocent children to unwanted migrants and unwed moms: two chapters in the public discourse on welfare in the united states, 1960-1961, 11 j. of women’s hist. 10 (2000); bell, supra note 10, at 137–51. 624 colum. j. race & l. [vol. 11:611 didn’t want to give them up, but ended up having to. families didn’t understand why this was happening. i am haunted by a woman who had to give her child up. the resolution for many families was that they gave their children away.37 the effect of suitable home laws, by design, was to allow welfare case workers to visit recipients, stop their checks, and refer families to the child welfare system once they had no means of support. the goal was to take children, coercively if necessary, and put them in foster care. through the work of activists, cutting “illegitimate” children off welfare in louisiana became a national and international scandal in a way previous states’ efforts did not. it became widely known simply as the “louisiana incident.” while governor jimmie davis was slandering welfare mothers as “prostitutes” and “promiscuous women,” new orleans urban league president j. harvey kerns mobilized national and international networks to feed their children so they could keep their families together.38 he travelled to new york and asked the national urban league convention for help, and it launched operation feed the babies. calls for support for the children “cry[ing] for food in new orleans” circulated through black newspapers around the country as the newest front in the school desegregation battle.39 food, clothing, and cash flowed to destitute families in louisiana, and welfare workers in illinois alone donated almost $4,000. in new orleans, the urban league coordinated dozens of groups to mobilize to feed people, including community groups, local black businesses, labor organizations, and black churches, especially the baptist emergency relief committee. at its height, operation feed the babies was helping 300 people a day and distributing thousands of pounds of food. local activists brought groceries and clothing to single mothers, cooked food, and gave rent money to those who had lost their welfare assistance. the urban league called on the federal government to address the widespread hunger and threatened to approach the united nations if federal funds did not materialize. in a move that was particularly designed to embarrass the 37 lindhorst & leighninger, supra note 3, at 572 (internal quotations omitted). 38 id. at 572. 39 kids “cry for food” in new orleans, chicago def., 1 (sep. 3 1960). 2021] black and native activism 625 eisenhower administration—which framed welfare as a “states’ rights” issue—those as far away as england airlifted food, money, and clothing to the “starving babies” of new orleans. in louisiana, the urban league, social welfare activists, black churches, and community groups pressured the state legislature to reinstate the “innocent children” to the welfare rolls.40 this campaign may have been the high-water mark of concern and activism for impoverished black single mothers and children, and their ability to get welfare. unfortunately, the national urban league pivoted from this radical call to support black families through mutual aid to push reform through the social security administration. this was more than a strategic mistake. its results were devastating, inviting not just state governments, but the federal government to intervene in the lives of african-american children and mothers, and it created the modern foster care system. the national urban league filed a complaint with the social security administration, which administered the federal portion of welfare benefits. social security responded with a hearing to consider whether the state’s suitable home provision was allowable under federal rules. the urban league was joined by the american civil liberties union, the child welfare league and even the american legion, all of which filed amicus briefs.41 unfortunately, they lost. the department of health, education, and welfare, having allowed virtually every other southern state, and michigan, to pass suitable home rules, could not find a reason to stop louisiana’s. however, the federal government was resistant to these shenanigans by states, at least when state policy was enacted in open defiance of federal initiatives, and when the federal government recognized the policies for what they were: punishment aimed at africanamericans, attempting to splinter the black freedom movement. in a move subsequently made into law, arthur flemming, the 40 reading the local black press, especially the louisiana weekly and talking to community people in 2000 did important work in holding up these local efforts by the urban league and new orleans activists and community organizations, rather than just the attention-grabbing international stunt of british women sending aid that other historians of the louisiana incident have noted. lindhorst & leighninger, supra note 3. international attention did not happen without tremendous local groundwork. 41 lawrence-webb, supra note 4. 626 colum. j. race & l. [vol. 11:611 secretary of health, education, and welfare—which then administered social security—issued a rule saying that states could not cut benefits to children in “unsuitable” homes, unless they were removed and placed elsewhere.42 louisiana’s policy ending welfare to families turned into a policy of taking children. isaac abramson, in his testimony for the state of louisiana, described the position that ultimately became the agreement between state and federal governments: “we just take the position that not every house is a home. a home means a respectable home in which a child may be brought up to become a respectable citizen. a child must be in that kind of a home to get federal-state money.”43 thus, in trying to stop southern states from evading their responsibility to provide eligible black children with welfare, the urban league’s reform effort provided a vehicle for a bait and switch that poured federal money into state foster care systems, giving them license to engage in wholesale terrorizing of never married, divorced, and widowed black mothers. as secretary flemming stated, whenever there is a question of the suitability of the home for the child’s upbringing, steps should be taken to correct the situation or, in the alternative, to arrange for other appropriate care of the child. it is completely inconsistent, however, to declare a home unsuitable for a child to receive assistance and at the same time permit him to remain in the same home exposed to the same environment.44 the following year, this rule, the flemming rule, was made into law, and congress authorized funding for the program known as adc-foster care, which provided federal matching funds to states to place children in out-of-home care. 150,000 black children were placed in out-of-home care in 1961 alone. in subsequent years, the flemming rule (enacted as p.l. 87-31 and the 1962 42 see cynthia p. honoré-collins, the impact of african american incarceration on african american children in the child welfare system, 12 race, gender & class 107 (2005); mink & solinger, supra note 16. 43 bess furman, u.s. to continue louisiana relief as state alters child home law, n. y. times, dec. 16, 1960, at 16, http://timesmachine.nytimes.com /timesmachine/1960/12/16/99979358.html. 44 bell, supra note 11, at 147 (citations omitted). 2021] black and native activism 627 public service amendments) transformed adc and foster care from a system that ignored black children to one that acted vigorously to take them. tens of thousands of mothers lost their children to foster care, and the federal government largely funded it. 45 these policies were not limited to the south, either. outside new york city, the city of newburgh sought to displace black residents and reduce their welfare costs by taking children, issuing rules that “prior to certifying or continuing any aid to dependent children cases[,] a determination shall be made as to the home environment. if [the home] is not satisfactory[,] the city shall take such children and place them in foster homes in place of welfare aid to family adults.”46 so many black children entered the child welfare system in the next decade that “some observers began to describe this decade as the ‘browning’ of child welfare in america.”47 while federal officials decried “the recurrent suggestion of asking the courts to take all illegitimate children away from their mothers and place them in foster care homes,” in 1962, once congress authorized federal funding, they could not stop local officials from doing just that.48 in the course of a few years, as dorothy roberts argued in shattered bonds: the color of child welfare, foster care went from being a system that ignored the needs of black children, to one that seemed primarily designed to harm them and break up black families.49 iv. the indian child welfare act as in the black community in the south, native people in the 1950s and 60s also fought state welfare workers who tried to 45 see howard altstein & ruth g. mcroy, does family preservation serve a child’s best interests? (2000); patricia a. schene, past, present, and future roles of child protective services, 8 future child. 23–38 (1998); lawrence-webb, supra note 4. this pattern was not limited to the south; in new york city, for example, the percentage of black and puerto rican children (versus white children) also soared after 1960. see l. trevor grant, the politicization of foster care in new york city (1996). 46 tom blair, the newburgh story, in welfare: a documentary history of politics and policy, supra note 16, at 206; grant, supra note 45, at 31. 47 lawrence-webb, supra note 4, 49. 48 bureau of public assistance, illegitimacy and its impact on the aid to dependent children program, in welfare: a documentary history of politics and policy, supra note 16, at 188. 49 dorothy e. roberts, shattered bonds: the color of child welfare (2002). 628 colum. j. race & l. [vol. 11:611 take their children. the federal government’s goal was tribal “termination” (the administrative term for reversing federal recognition of tribal status), and ongoing depredations of native land, livelihoods, and people. especially in the west, the federal government and states sought to “get out of the indian business”—that is, they sought to evade their treaty obligations to support indigenous nations, including those who had voluntarily in negotiations, or involuntarily in the context of indian wars, exchanged indigenous land for promises of food, health care, and housing to supports generations in perpetuity.50 as the early 20th century saw the federal renunciation of these commitments, native nations that demanded reparations and insisted on their right to state support through the public welfare system instead saw state social workers come and take their children. in contrast to the urban league, the association of american indian affairs (aaia) and native nations did not seek reform of the child welfare system in the 1960s and 70s, but freedom from it. activists and attorneys confronted state welfare workers and insisted they had no authority on reservations or over native people. when state welfare workers denigrated native families and caregiving structures—insisting grandmothers were too old to care for children, and that leaving babies and young people with relatives evidenced a mothers’ neglect—lawyers and members of tribal councils said they lacked understanding of native kinship, culture, and community. when state officials criticized the absence of indoor plumbing, overcrowding, and poor housing as child neglect, native activists argued that state social workers were trying to make life on the reservation itself a crime. finally, tribal leadership and activists called for child welfare matters to be under the jurisdiction of tribal nations, rather than reforming state systems that had taken one-fourth to one-third of native kids from their homes in many states. while this approach did not solve all the problems of the child welfare system’s treatment of native children, it reduced the presence of children in state child welfare systems; and at the very least, did not make things worse, as the urban 50 stephen wall, the state of indigenous america series: federalism, indian policy, and the patterns of history, 25 wicazo sa rev. 5–16 (2010). 2021] black and native activism 629 league’s compromise with the federal government had for black communities.51 among the places where tribal nations were most resistant to termination included the dakotas. there, state and federal officials displaced 150,000 people living on tribal land through the pick-sloan flood control plan that safeguarded anglo communities at the expense of native communities by building dams and putting reservation households under the missouri river. although fights over american indian land in the dakotas in the 1940s and 50s and “termination” policy in general did not attract the national attention that school desegregation did in the south, they were no less bitter.52 as joseph w. thompson, former chairman of the lower brule tribal council testified to a u.s. senate subcommittee in 1959, the flooded bottom lands were “our heart lands. no similar lands are for sale. we depend on our land for our livelihood, it furnishes our income. to take our land is to take our homes and income, and a part of our history and heritage.”53 he demanded reparations, just as generations of lakota people have fought for federal accountability for so many injustices, including the plains indian wars; the taking of the black hills; the wounded knee massacre; the ghost dance “crisis” in the 19th century; the demand to end corrupt tribal leadership allied with the fbi and u.s. marshal service in the 1972–73 standoff at wounded knee in the 20th century; and, most recently, the “water is life” protests against the dakota access pipeline.54 child-taking was the front line in the termination era. it repeated a deep history of separating native children from their kin as a key tactic for the detribalization, thus extinguishing land 51 steven unger, the destruction of american indian families (1977). 52 see nick estes, our history is the future: standing rock versus the dakota access pipeline, and the long tradition of indigenous resistance (2019). 53 hoopa valley reservation boundary adjustment act and the lower brule sioux infrastructure development act: hearing on h.r. 79 and s. 156 before the s. comm. on indian affairs, 105th cong. 34 (1998) (statement of joseph w. thompson, chairman, lower brule sioux tribe). 54 see estes, supra note 52; elizabeth cook-lynn, the politics of hallowed ground: wounded knee and the struggle for indian sovereignty (1999); peter matthiessen, in the spirit of crazy horse (1992); edward lazarus, black hills white justice: the sioux nation versus the united states, 1775 to the present (1999). 630 colum. j. race & l. [vol. 11:611 claims. this practice began with the military boarding school policy that ended the indian wars in the 1880s by essentially taking children as hostages and attempting to destroy the passing on of indigenous languages and ways of life.55 without a next generation, land claims would be extinguished in a handful of years. there was also a centuries-long conflict over the settler colonial demand that native people adopt anglo gender and family forms.56 in the 1960s, as protests by the aaia revealed, children were being taken if found in the care of a grandmother rather than a nuclear family, especially if the grandmother or an unmarried mother was receiving state welfare payments. as in the south, western states, like north dakota, passed a suitable home law that demanded the presence of a legally related father. if mothers did not pass this suitable home requirement, they were labeled as immoral, regardless of the actual harm this label and practice did to community kinship norms.57 55 see david wallace adams, education for extinction: american indians and the boarding school experience, 1875–1928 (1995); margaret archuleta et al., away from home: american indian boarding school experiences, 1879–2000 (2000); morton beiser, a hazard to mental health: indian boarding schools, 131 am. j. psychiatry 305–306 (1973); john bloom, to show what an indian can do: sports at native american boarding schools (2000); brenda j. child, boarding school seasons: american indian families, 1900–1940 (1998); ward churchill, kill the indian, save the man: the genocidal impact of american indian residential schools (2004); esther burnett horne & sally mcbeth, essie’s story: the life and legacy of a shoshone teacher (1999); k. tsianina lomawaima, they called it prairie light: the story of chilocco indian school (third printing ed., 1995); richard henry pratt & david wallace adams, battlefield and classroom: four decades with the american indian, 1867–1904 (robert m. utley ed., 2004). the lived experience of a century of boarding schools was more complicated, as they became also a place of native survival. however, as pratt’s autobiography and some of the more critical histories like adams and churchill make clear, their intention was the extermination of children’s “indianness.” 56 see, e.g., kim tallbear, making love and relations beyond settler sex and family, in making kin not population: reconceiving generations 145, 145–166 (adele clarke & donna haraway eds., 2018); scott lauria morgensen, settler homonationalism: theorizing settler colonialism within queer modernities, 16 glq: a j. of lesbian & gay stud. 105–131 (2010); mark rifkin, when did indians become straight?: kinship, the history of sexuality, and native sovereignty (2010). 57 see the destruction of american indian families, supra note 4; pauline turner strong, to forget their tongue, their name, and their whole relation: captivity, extra-tribal adoption, and the indian child welfare act, in 2021] black and native activism 631 indigenous communities used different tools to fight the use of the child welfare system than the urban league. rather than appeal to federal and state governments to treat their families fairly, they asserted a legal right to be left alone by demanding recognition of tribal sovereignty, and autonomous control of child welfare matters through tribal councils. control over children became a fundamental issue in fighting the tribal termination policy. in the 1950s, tribal nations used existing laws to demand that states cease policing their families, and by the late 1970s, began to petition congress for a new law, the indian child welfare act (icwa), that would relocate all native child welfare matters to tribal courts, not state courts. it was a demand for autonomy from and self-determination in relation to a racist, anti-native child welfare system. icwa was finally passed by congress in 1978 after years of hearings and lobbying. since then, it has been the subject of unrelenting hostility by conservative groups like the goldwater foundation, which took a case to the supreme court as recently as 2013 that weakened icwa, and a texas attorney general who won a judgement in 2018 that the whole act was unconstitutional. while the fifth circuit ultimately reversed this holding, it is worth noting how fundamentally the effort of tribal nations to stand up to the states’ child welfare systems continues to irritate conservatives and even many liberals.58 relative values: reconfiguring kinship studies 468–93 (sarah franklin & s. mckinnon eds., 2001); pauline turner strong, what is an indian family? the indian child welfare act and the renascence of tribal sovereignty, 46 am. stud. 205–31 (2005). see also, indian family defense: a bulletin of the association on american indian affairs, inc, issues 1–11, (1974), which detailed case after case. 58 emma platoff, 5th circuit upholds indian child welfare act as constitutional, reversing lower court, tex. trib. (aug. 10, 2019), https://www.texastribune.org/2019/08/10/5th-circuit-upholds-indian-childwelfare-act-constitutional-texas [https://perma.cc/34cq-q3cg]. for a liberal critic, see randall kennedy, who writes: icwa’s architects stressed the disparity between the numbers of non-indian versus indian children who were removed from the care of their biological parents . . . they did not negate the counterhypothesis that much of the purportedly ‘racial’ disparity was actually attributable not to individual discrimination but to some other cause—perhaps 632 colum. j. race & l. [vol. 11:611 of all the native nations that fought child removal, one of the earliest and most persistent was the devil’s lake sioux, known presently as the spirit lake dakota. that nation took the state child welfare system to court repeatedly in the 1950s and 60s to resist losing their children to the foster care system in north dakota.59 they won an order from the state supreme court in 1963 that child welfare was to be adjudicated by tribal courts. nevertheless, in 1968 state police came onto the reservation and arrested a grandmother, mrs. elsa greywind, who stood in the doorway of her home to prevent a state welfare worker from taking her grandchildren and putting them in a white foster home. another grandmother, mrs. fournier took her boy in her arms and refused to let go, even as the social worker grabbed him and tried to pull him away. welfare workers took a child named ivan brown and placed him with a white foster family because they said that, at the age of 63, his grandmother was too old to be caring for a child. when social workers drove onto the reservation in their conspicuously new cars, children were hidden under beds, in the woods, or sent fleeing with their parents through the reservation’s back roads.60 despite the courage and toughness of women like these, and the high value native peoples placed on cultural survival, including especially through the rearing of children, tribal nations continued to lose children to state welfare agents. welfare workers disparaged the f of reservations, and shamed mothers, especially grandmothers, who cared for children. to the disproportionate impact of disease, unemployment, violence and family dysfunction on native americans randall kennedy, interracial intimacies: sex, marriage, identity, and adoption 498 (2003). in this, kennedy is wrong. the many volumes of testimony for icwa showed again and again that it was the particularities, not of “race,” but of native patterns of kinship and the conditions of reservation life themselves that were cited by case workers as they took children. also, icwa’s architects did not rely on numbers in the 1974 or 1976 hearings on indian child welfare; it was the failure of strategies of storytelling that pushed them toward relying on numbers in 1977. 59 aaia and devils lake sioux protest child welfare abuses, indian affairs, aug. 1968. 60 devil’s lake sioux resistance, indian family defense, winter, 1974; margaret d. jacobs, a generation removed: the fostering and adoption of indigenous children in the postwar world 100 (2014); the destruction of indian families, indian family defense, winter, 1974, at 1. 2021] black and native activism 633 spirit lake tribal chairman louis goodhouse went to the association of american indian affairs, with whom the nation was working on another matter. they sent bertram hirsch, a young lawyer, to get ivan brown back to his grandmother. over the months of filing motions and trying to extract ivan from the white foster family, hirsch went house to house and found that a quarter of the children born to families on the reservation were either in white foster or adoptive homes, or at off-reservation boarding schools. he continued gathering data until the mid1970s, eventually producing the well-known statistic that 25 to 35% of native children were in out-of-home care. he talked about the importance of understanding that this was a problem that was affecting a lot of people. when he began collecting statistics, he said: native people thought, ‘this is my problem. they didn’t know that the family a mile down the road . . . or over the next butte . . . was experiencing the same thing. everybody was feeling shame about it and was not talking about it. they thought it was their own personal circumstance . . . so people kind of kept it to themselves and they did not seek out assistance from their own tribes.61 investigating further, he found that while native people constituted less than 2% of north dakota’s population, their children were 50% of the state’s foster population.62 in 1968, a defiant devil’s lake tribal council passed a resolution prohibiting county officials from removing children from the reservation under any circumstances.63 the county responded by halting all welfare payments to the tribe, despite a 90% unemployment rate, regardless of the fact that the money came, not from the state government, but from the bureau of 61 jacobs, supra note 60, at 103–04 (quoting bertram hirsch, interview by author, sept. 30, 2011). 62 see bertram hirsch, keynote address, in the indian child welfare act the next ten years: indian homes for indian children 18– 26 (troy r. johnson ed., 1990); aaia and devils lake sioux, supra note 59; devil’s lake sioux resistance, supra note 60; native american training institute, “30 years of icwa; native american training institute,” conference poster, north dakota (2008); william byler, sam p. deloria & a. gurwitt, another chapter in the destruction of american indian familes, yale reports [radio program] (1973). 63 devil’s lake sioux resistance, supra note 60. 634 colum. j. race & l. [vol. 11:611 indian affairs.64 over the next few years, another north dakota group, the three affiliated tribes (or mandan, hidatsa and arikara nation) of the fort berthold reservation, and three lakota tribal nations in south dakota—the sisseton-wahpeton sioux, the standing rock sioux, and the oglala sioux—joined the organized resistance to state foster care. all five nations passed tribal council resolutions denouncing the manner and the rate at which native children were being placed into offreservation foster homes.65 the aaia, unable to find justice in north dakota or in washington, d.c., through the bureau of indian affairs, sought to halt the taking of native children by jumping scales: they took it to the foreign press at the height of the cold war.66 greywind, fournier, and three other women who had become activists for the nation’s children at spirit lake—alvina alberts, annie jane demarce leftbear, and genevieve hunt longie goodhouse— were at the press conference.67 although we don’t remember their names alongside the icons of the red power movement like russell means (oglala lakota) or dennis banks, nevertheless, the movement for the defense of native children that these women launched was critical not only to the futures of native kids, but also to the defense of sovereignty of tribal nations, their ability to conduct their own affairs and control their land without interference from state governments. while the fight for legal respect for tribes as sovereign entities with rights enshrined in treaties and the unceded sovereignty of autonomous nations to govern their own people was—and is—an ongoing struggle, a minimal requirement of self-government was surely what most white households expect as a baseline: the freedom to raise their own children.68 where north dakota sought to punish the devil’s 64 1961 u.s. census bureau, statistical abstract u.s., https://www.census.gov/library/publications/1961/compendia/statab/82ed.html (last visited aug 12, 2019). 65 tribes act to halt abuses, indian family defense, winter, 1974, at 7. 66 the concept of jumping scales from the local to the national and transnational is maylei blackwell’s; see maylei blackwell, scales of resistance: the practice of indigenous autonomy in the age of neoliberalism (forthcoming). 67 aaia and devil’s lake sioux, supra note 59. 68 the best-known statement of this un-seceded sovereignty is felix s. cohen, handbook of federal indian law: with reference tables and index (1942). 2021] black and native activism 635 lake sioux for their obstinate insistence on the right of the tribal nation to control the placement of their own children, these activists launched a political movement. icwa finally passed in 1978, after three sets of senate hearings and the mobilization of native communities, activists, and communication networks for a decade. although it did not retroactively undo any adoptions that were already finalized, it contained procedural requirements that enshrined the notion of tribal sovereignty. indian69 child welfare cases were to be considered in tribal courts when children resided on the reservation. even when children do not reside on the reservation state courts can, with good reason, exercise jurisdiction. there is a preference in the law for keeping indian children with first, their own extended family, second, other members of their tribal nation, and third, other native people. the act sets the evidentiary standards higher than for non-native children in dependency hearings or termination of parental rights. there is a requirement that the family be offered crisis intervention services before a child can be taken.70 throughout the 1970s and early 80s, the number of native children in out-of-home care declined. the aaia and tribal nations successfully fought back the incursions of state child welfare agencies. since then, however, it has not always been clear that tribal child welfare agencies have been overwhelmingly better than state ones, any more than that the 1970s dream that putting more black cops on the streets would end racist policing. religious-right forces within tribal nations can be as harsh to single mothers coping with alcoholism or children dealing with sexual violence as state-run child welfare agencies ever were, and several decades later, it was not clear that even the numbers of native children in out-of-home care 69 this article employs the term “indian” or “american indian” for the purposes of accuracy. these are legal terms in u.s. government policy. icwa protects those defined as “american indians,” but excludes many indigenous children (including those from mexico, canada, or hawaii, or those from tribal nations recognized by states but not the federal government, or those from terminated tribes.) 70 indian child welfare act, 25 u.s.c. §§ 1901–63. 636 colum. j. race & l. [vol. 11:611 have declined.71 by leaving in place what was still essentially a new framework—the permanent and legal alienation of parents from their children—the drafters of icwa unintentionally handed tribal social services a vicious tool that continued its existence, ready to be activated. this reactivation occurred in the late 1980s, when an unfounded argument that fetal alcohol syndrome was blighting the futures of as many as a third of native children created a moral panic about maternal drinking and harm to children.72 its call for social services to support families in crisis was bureaucratic, and also unfunded, making it more of a remote promise than a realistic solution. v. history’s lessons mid-20th century activists made a number of significant interventions that are worth thinking with. the national urban league and religious and community groups in louisiana articulated the principle of mutual aid to care for single mothers and children. children and caregivers need rent money, food, and clothing that is not dependent on its donors’ approval of family morality. activists in native and black communities both 71 on conservative takes on mothers within native communities, see, e.g., elizabeth cook-lynn, the big pipe case, in reading native american women: critical/creative representations (inés hernández-avila ed., 2005), about an alcoholic, parenting teen who lost her child and was referred by tribal agencies to the fbi for “felony child abuse” after breastfeeding while drunk and did time at leavenworth; and the documentary, kind hearted woman, (pbs & frontline, 2013), about spirit lake authorities who placed two children with a father who sexually abused one of them, seemingly because he came from a high-status family (the bia subsequently put the child welfare agency in receivership). the number of native children in out-of-home care declined from 1974 until 1988, then rose to rates higher than before. see margaret plantz, indian child welfare: a status report: final report of the survey of indian child welfare and implementation of the indian child welfare act and section 428 of the adoption assistance and child welfare act of 1980 (1988). 72 a book about native children and fetal alcohol syndrome, michael dorris, the broken cord (1989), a novelistic account that begins with the adoption of his son adam, put it on the map as a national crisis. he is responsible for the claim that it affected one in three native children, while other public health commentators put the figure one hundred times lower. see elizabeth m. armstrong, conceiving risk, bearing responsibility: fetal alcohol syndrome and the diagnosis of moral disorder (2003); janet golden, message in a bottle: the making of fetal alcohol syndrome (2005). see also elizabeth cook-lynn, review of the broken cord, 5 wicazo sa rev. 42–45 (1989), for a sharp response to dorris’s claims about the pathologies of lakota peoples. 2021] black and native activism 637 rejected the centrality of the nuclear family as a keystone of a “suitable” family. lest this sound like an archaic problem, it bears noticing that when these questions were relitigated in the context of welfare reform in 1996, the preamble to that law centered on cutting off welfare to single mothers, starting with the words “[m]arriage is the foundation of a successful society,” and continuing with the supposed benefits of nuclear families to children (a principle reiterated in gay marriage cases, too). it also made it much easier for those who applied for welfare to lose their children.73 the argument by advocates of icwa that tribal communities have a right to be left alone by social workers who neither understand nor respect the forms that caregiving and kinship take was powerful. the rejection of compromise or reform was, for a decade, much more successful than the urban league’s agreement with the federal government to reform what some have called, not a child welfare system but a “family regulation system.”74 icwa’s demand for freedom from this family regulation system represents one model of what it could mean to abolish the child welfare system, allowing communities to articulate varieties of forms of care for children. icwa also extended to impoverished communities the form of child welfare enjoyed by white middle-class families when parents are in crisis—children go to extended family members or someone known to the parents, not to a stranger, or at the very least, someone culturally similar to the parents. tribal nations also demanded that foster care and adoption not be used in place of decent wages or other support for 73 pub. l. no. 104-193 (1996). the most striking gay marriage case claiming the supposed benefits of marriage to children is the windsor case— striking because it was a tax case involving a childless couple, so justice kennedy, writing for the majority, had to work hard to get to an argument that the absence of federal recognition of gay marriage “humiliates children.” united states v. windsor, 570 u.s. 744 (2013). 74 erin miles cloud, toward the abolition of the foster system, 15 s&f online (2019), https://sfonline.barnard.edu/unraveling-criminalizing-websbuilding-police-free-futures/toward-the-abolition-of-the-foster-system [https://perma.cc/4l9f-wfkh] (last visited feb 17, 2021); michael fitzgerald, rising voices for ‘family power’ seek to abolish child welfare system, imprint, (july 8, 2020) https://imprintnews.org/child-welfare-2/family-power-seeksabolish-cps-child-welfare/45141 [https://perma.cc/r2qa-q372]; dorothy roberts, abolishing policing also means abolishing family regulation, imprint (june 16, 2020) https://imprintnews.org/child-welfare-2/abolishing-policingalso-means-abolishing-family-regulation/44480 [https://perma.cc/7f24-37tq]. 638 colum. j. race & l. [vol. 11:611 poverty alleviation, as many case workers in the 1960s seemed to believe. louisiana’s activists enacted the principle of temporary supports for families in crisis, choosing rent parties (a social event where attendees contribute to help pay another’s rent) and community kitchens for households with children facing houselessness or other adversity, such as grave illness, substance use disorders, sexual and domestic violence, rather than incarceration, or child taking. if these mid-century movements missed anything, we might say it was feminism and a reproductive justice politics that articulated an analysis of the feminization of poverty and violence to say why so many unmarried mothers lacked the resources they needed to safely raise their children. still, they got a lot right. and that is worth paying attention to in this crucial moment. columbia journal of race and law vol. 11 july 2021 no. 3 article mutual deference between hospitals and courts: how mandated reporting from medical providers harms families clara presler this article explores the phenomenon of “mutual deference” between the medical and legal systems to show that placing mandated reporting responsibilities on clinicians results in lasting harm for families. on the medical side, clinicians are obligated to defer any “reasonable suspicion” that a child may be at risk to the legal system; their concern may be mild or severe, medical or nonmedical in nature. but the legal system, comprised of lay-people in the field of medicine, is illequipped to evaluate a medical concern, and so defers back to the clinician’s report when making critical decisions around family integrity. this deference often functions to elevate a clinician’s “reasonable suspicion” to a finding of “imminent risk,” justifying needless and prolonged separation of families. more systemically, mutual deference creates and reinforces medical and legal associations between low-income communities of color and notions of child maltreatment. mutual deference insulates the medical reporter and the  supervising attorney, family defense practice, the bronx defenders; j.d., the university of michigan law school, 2012; b.a., carleton college, 2004. i thank emma ketteringham for providing critical comments on a previous draft of this article, and also for establishing links to local hospitals that have become an ongoing avenue for advocacy on behalf of parents affected by the family regulation system. i thank miriam mack and mara fleder for providing important edits; hymavati kavuri, m.d., and edith presler, n.p., for insights from a medical perspective; rebecca suldan and ester johannsonlebron for contributing legal research; and the editorial staff of cjrl for their support in the publication process. finally, i honor and thank the parents who agreed to have their story included in this article. 734 colum. j. race & l. [vol. 11:733 legal system from liability while imposing tremendous harm on the families caught in the middle. that mandated reporting laws discourage clinicians from considering this harm when deciding whether to report a family reflects the extent to which the family regulation system has prioritized prosecution over supporting families. efforts to re-envision how society’s support for and protection of families can move away from statesanctioned violence and towards strengthening families within their communities must begin with removing mandated reporter responsibilities from medical providers. 2021] mutual deference 735 i. introduction ............................................................................. 736 ii. mutual deference: why the theory of mandated reporting fails in medical cases ..................................... 740 a. mandated reporting laws require and incentivize reporters to defer their suspicions to the system, promising a process of checks and balances ....................................................................... 741 b. the system is unable or unwilling to provide a check on a medical “reasonable suspicion” and instead defers to the clinician’s concern ................. 745 iii. lack of systemic guidance around “reasonable suspicion” means a clinician’s concern may reflect non-medical factors, including race and class biases .................................................................................. 749 a. a clinician’s “reasonable suspicion” is an undescriptive metric ................................................... 749 b. hospitals’ use of social risk factors and screening tools to detect maltreatment embed race and class disparities into medical opinions ... 751 iv. how mutual deference harms families in practice ......... 755 a. a clinician may refer a family to the family regulation system for supportive intentions; the court interprets the report as imminent risk pending a hearing ....................................................... 757 b. an injury is severe, but the doctor’s true concern is non-medical .............................................. 759 c. doctors can make mistakes, and critical legal decisions are based on those mistakes; litigation to resolve them results in prolonged separation of families .................................................................... 761 v. concluding remarks: resisting mutual deference ........ 764 736 colum. j. race & l. [vol. 11:733 i. introduction race disparities pervade the foster system: families forcibly separated by the state are primarily families of color; black and brown children spend more time in the foster system than white children.1 interrogation of the system that enforces this separation—historically referred to generally as “child protective services” and more recently as the “family regulation system”2—requires that we examine the mechanisms by which families come to the attention of the system in the first place. the hospital setting is one critical juncture,3 and families’ experiences there diverge along race and class lines. many parents of color must weigh a child’s need for medical attention against the real possibility that their decision to seek care will trigger an investigation and that they will leave the hospital without their child. a parent brings a child to the hospital for medical care or advice. something about the child’s condition, the clinical history, or the parent’s demeanor sparks a clinician’s concern about the child’s safety. a child may have a physical injury and 1 see tanya a. cooper, racial bias in american foster care: the national debate, 97 marq. l. rev. 215, 258 (2013) (“studies repeatedly show that ‘children of color are overrepresented at all decision points of the child welfare system: reporting, investigation, substantiation, placement, and exit from [foster] care.’”) (citing alliance for racial equity in child welfare, policy actions to reduce racial disproportionality and disparities in child welfare: a scan of eleven states (2009), http://www.antiracistalliance.com/policyactionstoreduceracialdisproportional ityanddisparitiesinchildwelfare.pdf [https://perma.cc/8dj4-345l]). for a robust review of literature citing data on race disparities, see tina lee, processes of racialization in new york city’s child welfare system, 28 city & soc. 276 (2016). 2 dorothy roberts, abolishing policing also means abolishing family regulation, imprint (june 16, 2020, 5:26 am), https://imprintnews.org/childwelfare-2/abolishing-policing-also-means-abolishing-family-regulation/44480 [https://perma.cc/n7f8-xu6m]. 3 2018 data show that reports of suspected child maltreatment from medical personnel comprised 10.5% of those that were screened in for investigation. u.s. dep’t health & hum. servs., child.’s bureau, child maltreatment 2018, at 9 exhibit 2-d (2020), https://www.acf.hhs.gov/sites/ default/files/cb/cm2018.pdf [https://perma.cc/4ef4-jstb]. physician reports of suspected maltreatment of children have been shown to be the most likely to be supported be subsequent child welfare investigation. see, e.g., jody e. warner & david j. hansen, the identification and reporting of physical abuse by physicians: a review and implications for research, 18 child abuse & neglect 11 (1994). 2021] mutual deference 737 a parent does not know how it was caused or the hospital does not believe the explanation;4 a child may have a medical condition and the parent has missed doctor’s visits;5 a newborn or their parent may test positive for an illegal substance at birth;6 or a parent may disagree with the hospital’s course of treatment for their child’s medical condition.7 the treating clinician may be concerned about the risks caused by the myriad challenges that financial and housing instability pose for a family.8 the concern may be mild or severe, medical or non-medical in nature. to be on the safe side, or because the clinician is a mandated reporter of suspected child maltreatment, or because the clinician assumes that a child protective team will connect the family to supportive programs, the clinician reports this concern to the state. what happens next is unimaginable for parents who have experienced hospitals primarily as safe and reassuring places: a caseworker, and possibly the police, interview the family at the hospital. these officials defer to the doctor’s intuition and 4 see, e.g., jacqueline kuruppu et al., tipping the scales: factors influencing the decision to report child maltreatment in primary care, 21 trauma, violence, & abuse 427 (2020). see also jessica horan-block, a child bumps her head. what happens next depends on race., n.y. times (aug. 24, 2019), https://www.nytimes.com/2019/08/24/opinion/sunday/child-injuriesrace.html [https://perma.cc/m44d-j49j]. 5 see, e.g., kristine fortin, when child neglect is an emergency, 21 clinical pediatric emergency med. 100784 (2020). 6 see, for example, comprehensive addiction and recovery act (cara), pub. l. no. 114-198, 130 stat 695 (codified as amended in scattered sections of 42 u.s.c.), child abuse prevention and treatment act (capta), 42 u.s.c. §§ 5101–5116i, and 42 u.s.c. § 5106, requiring states to implement policies to “notify” child welfare agencies of babies who fall into one of the three categories: being “affected by substance abuse,” affected by “withdrawal symptoms resulting from prenatal drug exposure,” or having fetal alcohol spectrum disorder, which has led to hospitals implementing testing policies for birthing women. see also emma s. ketteringham et al., healthy mothers, healthy babies: a reproductive justice response to the “womb-to-foster-care pipeline”, 20 cuny l. rev. 77 (2016). 7 see, e.g., maxine eichner, bad medicine: parents, the state, and the charge of “medical child abuse”, 50 u.c. davis l. rev. 205 (2016). 8 effrosyni d. kokaliari et al., african american perspectives on racial disparities in child removals, 90 child abuse & neglect 139, 140 (2019) (“a corollary to the disproportionately high poverty rate among african american children, is the greater likelihood poor parents will face charges of neglect and possible child removal based on conditions related to their precarious financial standing such as poor food quality or lack of medical supervision—factors with which affluent parents are not confronted.”). 738 colum. j. race & l. [vol. 11:733 medical knowledge. relying on the clinician’s report, the caseworker files a case in family court alleging the child is neglected or abused. the judge, needing to make an emergency decision, reluctant to weigh in on a medical condition, and trusting the word of a doctor over the parents, removes the child from the care of their parent. unless the parent contests the removal, the clinician may never be consulted and may never know the effect of their call. contesting the removal requires navigating hospital bureaucracies, competing schedules of clinicians, and over-clogged court systems. this can take weeks or months. during this time, the child is separated from their parents. this common scenario represents a phenomenon that this article names and will refer to as “mutual deference.” current mandated reporting laws require that certain professionals, including medical professionals,9 defer any “reasonable suspicion” to the family regulation system. this low burden reflects the aspiration that a system of checks and balances will follow. but a clinician’s concern cannot be effectively investigated and evaluated on an emergency basis because it is—or is perceived to be—based on specialized medical knowledge. instead, the family regulation system and the court system (collectively, the “legal system”)—comprised of lay people in the field of medicine—overly defers to the clinician’s concern, making critical decisions affecting family integrity without a full medical context. while mutual deference insulates each part of the system from liability, it devastates the families in the middle. mutual deference is particularly harmful for black and brown families given studies showing the disproportional reports and investigations of children from low-income families of color from hospitals.10 and there is an ominous circularity to it: individual 9 in new york, the original mandated reporting statute of 1964 required only physician and surgeons to report an incident of suspected abuse to a specified agency because they were considered to be reluctant to interfere with family affairs. iris ann albstein, note, child abuse and maltreatment: the development of new york’s child protection laws, 5 fordham urb. l.j. 533, 536 (1977). notably, it was enacted as part of new york penal law, but is now contained in new york social services law. id. see also n.y. soc. serv. law § 491 (mckinney 2021). 10 see generally kathryn s. krase, differences in racially disproportionate reporting of child maltreatment across report sources, 7 j. 2021] mutual deference 739 and collective biases influence mandated reporting and these biases are reinforced by the legal system. data around which families are caught in the family regulation system then influence how medical institutions screen for potentially at-risk children.11 this article argues that mandated reporting for medical providers, instead of protecting children, perpetuates the disregard for the bonds of black and brown families that characterizes the family regulation system as a whole. parts ii and iii examine mutual deference on a systemic level. part ii traces the origins of “mutual deference” to statute and case law, revealing tensions between reporters’ obligations on the one hand and the deference to medical concerns by the legal system on the other. part iii explains why mutual deference is particularly harmful for low-income families of color. non-medical factors, including clinicians’ individual biases and perceived social risk factors, have been shown to influence clinicians’ reports, yet receive the deference of a medical diagnosis. part iv illustrates how mutual deference harms families in practice. it describes the experience of three parents in the bronx who were separated from their children after seeking medical care at a hospital. concluding remarks propose that removing mandated reporting responsibilities from clinicians is a critical step towards re-envisioning support for families away from the family regulation system entirely. further, eliminating mandated reporting would restore the primacy of the physician-patient relationship and permit a critical analysis of how child maltreatment has been diagnosed and adjudicated. i offer this article into the discourse about fundamental challenges to the family regulation system in my personal capacity. but, the experiences that give rise to this article are rooted entirely in my role as a family defense attorney in the bronx. in that capacity, i represent parents charged with abuse and neglect of their children in family court. i have also delivered trainings at new york city hospitals on mandated reporting and have spent hours speaking with hospital staff— pub. child welfare 351 (2013); daniel hirschman & emily adlin bosk, standardizing biases: selection devices and the quantification of race, 6 socio. race & ethnicity 348 (2020). 11 see infra part iii.b (discussing studies showing racial disparities in reporting patterns among clinicians with more specificity). 740 colum. j. race & l. [vol. 11:733 residents, doctors, social workers—about the harmful effects of mandated reporting on families. this article describes what i have seen. ii. mutual deference: why the theory of mandated reporting fails in medical cases the theory of mandated reporting depends on a balance of power between the reporter, the investigatory branch of the government, and the court system.12 statutes and case law13 instruct mandated reporters to defer investigation to the system under a theory of checks and balances. the system promises that caseworkers will investigate the concern and, where necessary, seek judicial review. critics of mandated reporting have cited its ineffectiveness and unintended consequences.14 this section 12 for a robust history of the emergence and development of mandated reporting, see, for example, albstein, supra note 9; monrad paulsen et al., child abuse reporting laws—some legislative history, 34 geo. wash. l. rev. 482 (1965); leonard g. brown iii & kevin gallagher, mandatory reporting of abuse: a historical perspective on the evolution of states’ current mandatory reporting laws with a review of the laws in the commonwealth of pennsylvania, 59 vill. l. rev. tolle lege 37 (2013). 13 this article examines primarily new york law around mandated reporting, but the concepts are transferrable to other states as well. although by 1974, all states had some sort of mandatory reporting law, passage of the federal capta fueled the expansion of state-wide systems. capta aimed to systematize and strengthen existing programs by “provid[ing] financial assistance for a demonstration program for the prevention, identification, and treatment of child abuse and neglect” to establish a national center on child abuse and neglect, “and for other purposes.” see, child abuse prevention act of 1973: hearings before the subcomm. on children and youth of the comm. on labor and public welfare, 93d cong. 137 (1973) [hereinafter capta hearings] (statement of sen. walter mondale, chairman, subcomm. on child. & youth). 14 for critiques of mandated reporting, see, for example, richard wexler, mandatory child abuse reporting belongs in dustbin, new research shows, youth today (feb. 28, 2020), https://youthtoday.org/2020/02/ mandatory-child-abuse-reporting-belongs-in-dustbin-new-research-makesclear/ [https://perma.cc/k53g-cg5h]; richard wexler, increasing mandated reporting of alleged child abuse and neglect will hurt children, nat’l coal. for child prot. reform, https://nccpr.org/the-nccpr-evidence-base-briefanalyses-and-commentaries/ [https://perma.cc/npb9-9lbg]; mical raz, unintended consequences of expanded mandatory reporting laws, pediatrics apr. 2017, at 1; jill r. mctavish et al., mandated reporters’ experiences with reporting child maltreatment: a meta-synthesis of qualitative studies, bmj open, july 2017, at 1; mical raz, more mandatory reporting won’t keep children safe from predators, wash. post (may 1, 2018, 7:00 pm), 2021] mutual deference 741 shows how mutual deference in medical cases makes mandated reporting particularly problematic: when the issue is or appears to be medical, the court system does not function as the objective check the system envisioned it to be. instead, the courts defer to the report absent a countering medical opinion—for practical reasons, such an opinion is unavailable at the time a call is made and often still unavailable when a child is removed from their parent. deference obscures opportunities for the court to issue orders designed to keep children in their parents’ care,15 rendering the legal system both impotent and complicit in the resulting harm. a. mandated reporting laws require and incentivize reporters to defer their suspicions to the system, promising a process of checks and balances the resounding message to new york’s mandated reporters is to defer any suspicion a child may be at risk to the family regulation system. passed in 1973, new york’s child protective services act addressed the concern that child abuse was going undetected and acted on a legislative intent to increase reporting of suspected child maltreatment to the state.16 the act https://www.washingtonpost.com/news/made-by-history/wp/2018/05/01/moremandatory-reporting-wont-keep-children-safe-from-predators/ [https://perma.cc/3jq9-3w5j]. 15 pursuant to new york’s family court act section 1028, prior to removing a child from a parent, a judge must consider whether any orders would mitigate the risk of harm. n.y. fam. ct. act § 1028 (mckinney 2021) see also nicholson v. scoppetta, 3 n.y.3d 357, 378 (2004) (“the court must do more than identify the existence of a risk of serious harm. rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal.”). 16 n.y. soc. serv. law § 411 (new york’s child protective services act was designed “to encourage more complete reporting of suspected child abuse and maltreatment”). see also diana g-d ex rel. ann d. v. bedford cent. sch. dist., 33 misc. 3d 970, 982 (n.y. sup. ct. 2011), aff’d, 104 a.d.3d 805 (n.y. app. div. 2013) (reviews the legislative history of n.y. soc. serv. law § 413 and states that “[a]ccording to a june 4, 1973 memorandum from the department of social services in support of assembly bill 6514a, which includes enactment of social services law § 413, the department of social services believed that the law is intended to address the issue of the difficulty in obtaining an accurate measure of the [child abuse] problem. it believed there were more instances of child abuse than reported. the objective of the new legislation was to accurately report such abuse.” (internal quotation removed)). see also satler v. larsen, 131 a.d.2d 125, 129 (n.y. app. div. 1987) (“the importance of rapidly detecting and addressing instances of an evil as pernicious as child abuse cannot be overstated.”). 742 colum. j. race & l. [vol. 11:733 instructs medical professionals, teachers, counselors, social service workers, and many others to “report or cause a report to be made” whenever they “have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or mistreated child.”17 the system promises to investigate any concern and address a family’s needs in a way that prioritizes keeping families together.18 “reasonable suspicion” is a low standard, emphasizing that reporters are not meant to investigate or achieve a particular quantum of evidence before making a report. instead, statutory and case law endorse reporting if a “reasonable person” could be concerned and even when maltreatment is just one of many possible explanations.19 nor should the reporter delay their reporting: the statute specifies that reports of suspected child abuse or maltreatment under the statute must be made “immediately.”20 the regulations under the statute reassure reporters that their suspicion will be investigated: “there may be times when you have very little information on which to base your suspicion of abuse or maltreatment, but this should not prevent you from calling the scr. a trained specialist at the scr will help to determine if the information you are providing can be registered as a report.”21 17 n.y. soc. serv. law § 413(1)(a). 18 see, e.g., off. child. & fam. servs., child protective services manual, ch. 6, § h (2020) [hereinafter off. child. & fam. servs., manual], https://ocfs.ny.gov/programs/cps/manual/2020/2020-cps-manual.pdf [https://perma.cc/b594-rgha] (“when a child has been assessed to be in imminent danger (i.e. unsafe), cps should also consider a broad range of safety oriented responses other than removal.”). see also n.y. comp. codes r. & regs. tit. 18, § 423.3; n.y. comp. codes r. & regs. tit. 18, § 430.9 (2021); and n.y. soc. serv. law § 409-a (2019) (mandating that core preventative services must be made available to a child and the family when there is a danger that the child may be separated from the family and services may prevent such removal or separation). 19 isabelle v. city of new york, 541 n.y.s.2d 809 (app. div. 1989) (finding that required reporters were immune from civil liability for reporting a suspicion of child sexual abuse if there is no willful misconduct or gross negligence, even though the tests for venereal disease came back negative two days later, and commenting, “[m]andated reporters need not await conclusive evidence of abuse or maltreatment but must act on their reasonable suspicions and the law allows them a degree of latitude to err on the side of protecting children who may be suffering from abuse”). 20 n.y. soc. serv. law § 415. 21 off. child. & fam. servs., summary guide for mandated reporters in new york state (2019) (emphasis added), 2021] mutual deference 743 that the role of investigating the report is meant for the state officials and not the reporter is evident in the relatively sparse information a reporter is asked to provide in the report. the regulations request basic identifying information and the basis for concern.22 notably absent is any instruction that the source include alternative possible causes or mitigating factors for the investigating specialist to consider—for example, information about a child’s special needs or a family’s strengths that would encourage prioritization of family unity despite the reporter’s concerns. also absent from this list is information that would distinguish poverty or other financial instability from neglect.23 this implies that such information—much of which is required information once a case comes to family court24—is within the realm of investigation, while the report is intended to provide the agency only the most basic information needed to begin an investigation. new york incentivizes the reporting of any reasonable suspicion, no matter how minor, by attaching legal and financial penalties to a mandated reporter’s failure to report25 and https://ocfs.ny.gov/publications/pub1159/ocfs-pub1159.pdf [https://perma.cc/ms3s-yey8]. 22 off. child. & fam. servs., manual, supra note 18, at ch. 2, § a-3. 23 section 1012(f)(i)(a) of the family court act distinguishes poverty from neglect by defining a neglected child as one whose “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent . . . to exercise a minimum degree of care in supplying the child with adequate food, clothing, shelter or education . . . , or medical, dental, optometrical or surgical care, though financially able to do so.” n.y. fam. ct. act § 1012(f)(i)(a) (emphasis added). 24 off. child. & fam. servs., manual, supra note 18, at ch. 6, § h (obligating caseworkers to consider in-home safety measures before executing a removal of a child); see also n.y. fam. ct. act § 1028 (requiring the court to consider any orders that could ensure the safety of a child in order to avoid a removal). 25 see n.y. soc. serv. law § 420; n.y. comp. codes r. & regs. tit. 18, § 432.8. most states identify a failure to report as a misdemeanor; some states have raised the penalties to a felony in certain circumstances, for example for a second failure or if the alleged offense is a criminal act. in new york, a mandated reporter’s willful failure to report is considered a class a misdemeanor, punishable by up to a year in jail or a fine of up to $1,000. for an extended discussion of penalties attached to failure of mandated reporters to report suspicions, see brown & gallagher, supra note 12, at 37, 63, 79 (providing state by state list of penalties for a mandated reporter’s failure to report). see generally child.’s bureau, child welfare info. gateway, penalties for failure to report and false reporting of child abuse and neglect 744 colum. j. race & l. [vol. 11:733 immunity for reporters who are later sued.26 reporters are presumed to be acting in good faith and any future liability for reports that turn out to be unfounded are predicated on a showing of actual malice.27 indeed, as long as they are acting on a reasonable cause to suspect maltreatment and in good faith, immunity attaches.28 in the face of statutory instructions to report immediately, civil and criminal penalties for failure to do so, and immunity for reports that turn out to be unfounded, “objectivity” emerges as the main check on “reasonable suspicion.” in considering what reasonable suspicion means substantively, courts have commented that, “[w]hether reasonable cause exists to suspect child abuse is an objective question that must be answered in light of the information available to the reporter at the time of her report.”29 invoking the “reasonable cause” standard in criminal law, courts have looked to what the “ordinarily prudent and cautious [person] under the (2018), https://www.childwelfare.gov/topics/systemwide/lawspolicies/statutes/report/ [https://perma.cc/ha5y-lvss]. 26 for example, in order to bring a libel case for a false report, a plaintiff has to show that the report was motivated by malice. see, e.g., dunajewski v. bellmore-merrick cent. high sch. dist., 526 n.y.s.2d 139 (app. div. 1988). in order to bring a negligence suit, the plaintiff has to show willful misconduct or gross negligence. see, e.g., ervin v. bronx lebanon hosp. ctr., 794 n.y.s.2d 41, 41 (app. div. 2005); estiverne v. esernio-jenssen, 581 f. supp. 2d 335 (e.d.n.y. 2008). see generally child.’s bureau, child welfare info. gateway, immunity for reporters of child abuse and neglect (2018) https://www.childwelfare.gov/topics/systemwide/lawspolicies/statutes/immunity/ [https://perma.cc/8gpw-deuv]. 27 n.y. soc. serv. law § 419 (2019). in a libel suit, the plaintiff bears the burden of proving that the statement was motivated by malice. a plaintiff bringing a negligence suit must overcome qualified immunity and show that the reporter engaged in willful misconduct or were grossly negligent in making the disputed report in order to overcome qualified immunity. finally, due process claims are contingent on whether the plaintiff can show that the mandated reporter was acting as a state actor. caselaw has indicated that a hospital complying with the social services law and communicating with child protective services is not sufficient to prove that the reporter acted under the color of state law. see thomas v. beth israel hospital, inc., 710 f. supp. 935, 940 (s.d.n.y.1989); estiverne v. esernio-jenssen, 581 f. supp. 2d 335, 345 (e.d.n.y. 2008). 28 thomsen v. kefalas, no. 15-cv-2668 (bcm), 2018 wl 1508735, at *17 (s.d.n.y. mar. 26, 2018) (“[e]vidence that the report was unfounded . . . does not–standing alone–undercut the existence of ‘reasonable cause,’ nor rebut the presumption of good faith.” (quoting jc v. mark country day sch., no. 03-cv1414 (dli) (wdw), 2007 wl 201163, at *7 (e.d.n.y. jan. 23, 2007))). 29 thomsen, 2018 wl 1508735, at *15. 2021] mutual deference 745 circumstances” would consider suspicious.30 to establish objectivity, the reviewing court must parse “mere ‘hunch’ or ‘gut reaction’” from objective knowledge that has “at least some demonstrable roots.”31 therefore, in order for the system of checks and balances to work, the system—here, the investigating agency and the court system—needs the ability and the information necessary to act as an “objective” observer. b. the system is unable or unwilling to provide a check on a medical “reasonable suspicion” and instead defers to the clinician’s concern when a reporter is a medical professional, the family regulation system fails to be the objective check on the low threshold of “reasonable suspicion.” this is evident when comparing medical cases with cases coming from schools, another significant source of reports. the clinician’s report carries the weight of a medical opinion rooted in specialized information; as such, courts’ opinions are comparatively cursory, presuming the reporter’s medical training provides the basis for concern. to analyze “reasonable suspicion,” courts ask whether a reporter acted in good faith when reporting a “reasonable suspicion.”32 in school cases, the facts are easily accessible—a child reports feeling uncomfortable at home or has excessive absences—so courts are able to engage with the information known at the time and consider what the reasonable person would have done.33 for example, in vacchio v. st. paul’s united 30 vacchio v. st. paul’s united methodist nursery sch., no. 001332/95, 1995 wl 17959412, at *5–6 (n.y. sup. ct. aug. 18, 1995) (the term “reasonable cause” is defined, as follows: “‘reasonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it reasonably likely that such offense was committed and that such person committed it.” (citing n.y. crim. proc. § 70.10)). 31 people v. sobotker, 43 n.y.2d 559, 564 (1978). 32 these cases are primarily liability or negligence cases against a reporter by a family. while this is not the posture that affects the removal of a child from their parent, the analysis in these cases illustrates courts’ limitation in medical cases. because decisions to remove a child from their parent are often emergency decisions made in summary or oral decisions, there is not a body of family court case law documenting judges’ rationale. 33 what is useful about this comparison is not the ultimate decision reached—the presumption that the reporter acts in good faith means that courts act largely as a rubber stamp in all cases—but the degree to which the court engages in a fact-specific analysis. 746 colum. j. race & l. [vol. 11:733 methodist nursery school, the court considered whether it was reasonable for a school to suspect a student had been abused when the child appeared with a black eye.34 the court denied the school summary judgment, holding that the decision to report a black eye without conducting a preliminary inquiry might support a finding of gross negligence.35 in doing so, the court weighed the presentation of the child with the paucity of other information available to the teacher at the time.36 even when the court ultimately dismisses the plaintiff’s case, courts do so after considering the underlying facts of the case. in cox v. warwick valley cent. sch. dist., the court considered whether the behavior of a student was sufficiently concerning for the school to make a report of suspected neglect. in affirming summary judgment for the school district, the second circuit examined the information available to the school at the time of the report, detailing that the child’s journal entries, misbehavior, and expressions of suicidal thoughts were— objectively—cause for concern and the school was not acting with actual malice.37 reports by medical professionals receive far more deference and less analysis. courts presume reports made by medical professionals are grounded in their professional 34 vacchio, 1995 wl 17959412, at *7 (“[d]oes the presentation of a child with a blackened eye, without more, give rise to a reasonable suspicion of child abuse, or may such conclusion more appropriately be characterized as within the ambit of the term “hunch”?”) 35 id. at *8–9. 36 id. see also thomsen 2018 wl 1508735, at *14, where the court considered whether a teacher had reasonable suspicion to think a child may have been sexually abused by another teacher. in denying summary judgment to the teacher, the court considered facts that undermined the likelihood the abuse took place, such as presence of other adults on the day in question, as well as the defendant’s history of making reports and possible motivations for making a false report. 37 cox v. warwick valley cent. sch. dist., 654 f.3d 267, 276 (2d cir. 2011) (finding that where the court affirms a reporter’s decision not to report, the inquiry is similarly fact-specific). see diana g-d ex rel. ann d. v. bedford cent. sch. dist., 33 misc. 3d 970 (n.y. sup. ct. 2011), aff’d, 104 a.d.3d 805 (n.y. app. div. 2013), where the court dismissed a negligence claim against a school that did not report sexual abuse allegations concerning a student. the court examined the actions the school took when it became aware of the possibility of abuse and the information that was available to the teachers and administrators. the court considered the child’s behavior, the answers she gave the teachers when she was questioned, and the content of a proximate parentteacher conference. 2021] mutual deference 747 expertise and therefore reasonable. they do not review the medical basis for the concern as they did in the school cases cited above; rather a professional’s concern is the medical basis. this circular reasoning is apparent in storck v. suffolk county department of social services, where the court, in granting “good faith immunity” to doctors who had suspected a parent of neglect, commented, “clearly, when the doctors reported their suspicions of abuse, they were acting ‘in the discharge of their duties and within the scope of their employment.’”38 in bowes v. noone, the appellate division even implied in dicta that the court should have no role in evaluating whether a doctor was acting within their professional judgment: to determine whether the act of a medical professional deviates from accepted medical standards, it must first be determined whether the act involves the exercise of professional judgment . . . . here, the medical experts . . . testified that the issue whether a medical professional should report suspected child abuse to the central register involves the exercise of professional judgment.39 this deference leads to cursory reviews of a clinician’s concern. for example, in kempster v. child protective services, the court found that a report by a hospital based on a baby’s swollen nose was reasonable, citing broadly the “medical data and other available information.” the court deferred to the hospital’s assertion that the injuries were concerning and the mother’s explanation did not explain them.40 in miriam p., the court presumed the hospital acted in good faith when it reported that a child had a fractured leg the mother was unable to explain. this common theory—that a parent’s inability to adequately explain the cause of an injury is a reasonable basis to suspect 38 storck v. suffolk cnty. dep’t of soc. servs., 62 f. supp. 2d 927, 946 (e.d.n.y. 1999). 39 bowes v. noone, 748 n.y.s.2d 440 (app. div. 2002). 40 kempster v. child protective servs. of dep’t of soc. servs. of suffolk cty., 130 a.d.2d 623, 625 (n.y. app. div. 1987). see also isabelle v. v. city of new york, 541 n.y.s.2d 809 (app. div. 1989) (the court examined a hospital’s report of suspected sexual abuse based on the vaginal discharge of two children, despite their denial that any abuse had taken place, then when the cultures came back negative for any venereal disease, and the parents later sued the hospital, the court deferred to the hospital’s concern about the symptoms.). 748 colum. j. race & l. [vol. 11:733 abuse—itself reflects deference to the medical profession’s opinion about which explanations are adequate and which are suspicious.41 similar to courts’ deference to the professional judgment of clinicians is their instruction that caseworkers should rely on and defer to medical professionals’ suspicions. in v.s. v. muhammad, when plaintiffs argued that the caseworkers’ reliance on a pediatrician known to give unreliable diagnoses in the field of child abuse was sufficiently unreasonable to remove qualified immunity, the second circuit disagreed. it commented, “to impose on an [administration for children’s services (acs)]42 caseworker the obligation in such circumstances of assessing the reliability of a qualified doctor’s past and present diagnosis would impose a wholly unreasonable burden of the very kind qualified immunity is designed to remove.”43 this is perhaps the most explicit acknowledgement of the family regulation system’s inability to provide a check on what counts as “reasonable suspicion” when the reporter is a medical professional.44 41 miriam v. city of new york, 163 a.d.2d 39, 43–44, 558 n.y.s.2d 506, 509 (1990). see also jessica horan-block & elizabeth tuttle newman, accidents happen: exposing fallacies in child protection abuse cases and reuniting families through aggressive litigation, 22 cuny l. rev. 382, 418 (2019) (discussing how a parent’s lack of explanation for a child’s condition is often erroneously transformed into a basis for an abuse charge). 42 in new york city, the child protective agency is called the administration for children’s services (acs). 43 v.s. v. muhammad, 595 f.3d 426 (2d cir. 2010). see also estate of keenan v. hoffman-rosenfeld, no. 16-cv-0149 (sfj) (ays), 2019 wl 3416374, at *21 (e.d.n.y. july 29, 2019), aff’d, no. 19-2730-cv, 2020 wl 6494881 (2d cir. nov. 5, 2020). 44 notably, when a lawsuit against a medical professional or hospital survives a motion to dismiss based on immunity, it tends to be for reasons other than the court looking at the basis for the clinician’s reasonable suspicion. for example, in ying li v. city of new york, the court allowed discovery to proceed in a civil rights suit based on the fact that the doctor may have gone beyond reporting and instead taken an active role in the investigation and prosecution of the plaintiff. ying li v. city of new york, 246 f.supp.3d 578 (2d cir. 2017). in estiverne v. esernio-jenssen, the plaintiffs survived a motion to dismiss a civil rights case when they pled information beyond the basis for the individual clinician’s concern, including that the doctor knew the diagnosis to be false and that the clinician disregarded the contrary diagnosis of a colleague. estiverne v. esernio-jenssen, 833 f. supp. 2d 356 (e.d.n.y. 2011). in other words, it was only when the court was presented with information that undermined the court’s ability to defer to the professional judgment of the clinician that it found a triable issue as to a presumption of good faith. see id. 2021] mutual deference 749 iii. lack of systemic guidance around “reasonable suspicion” means a clinician’s concern may reflect non-medical factors, including race and class biases certainly, the legal system cannot make decisions around medical issues without medical evidence. but the extent to which the legal system defers to the initial report from a clinician presumes that a clinician’s “reasonable suspicion” is probative of imminent risk. in fact, studies show that it is largely an undescriptive metric. clinicians report for a host of reasons that may provide little guidance to a court. the severity of a clinician’s concern may be mild or severe. the possibility of maltreatment may be the leading diagnosis, or one of many possibilities. further, studies show that a clinician’s reasonable suspicion may be influenced by a range of non-medical factors, including race and class biases, that are invisible to—or shared by—the system that investigates and adjudicates. these biases gain the status of medical opinions and therefore define the course of a family’s experience in the legal system.45 a. a clinician’s “reasonable suspicion” is an undescriptive metric a report of reasonable suspicion provides little description about the clinician’s level of concern. one study found that a report may represent that the reporter perceives abuse to be “very likely” or simply “likely.”46 additionally, when a clinician 45 see, e.g., cooper, supra note 1, at 252. cooper refers to “critical junctures” in the foster care system, “where incentives reinforce interconnections or dynamics between players.” id. at 251. the many critical junctures described by cooper, id. at 257–58, are consolidated into reporting of abuse, investigation, substantiation, placement, and exit from foster care. a medical professional’s concern, therefore, dominates four of those critical junctures: the clinician is incentivized to defer any suspicion to the family regulation system, without examination of whether that suspicion is rooted in race or class-based assumptions. a court is incentivized to defer to the medical professional’s suspicion, particularly in the absence of contrary information. the willingness to defer, which often means presuming a child is at risk in their parent’s care, can be traced to the judicial system’s own associations between maltreatment, race, and class. mutual deference, therefore, is one reason why “children of color are overrepresented at all decision points of the child welfare system.” id. at 258 (citations omitted). 46 benjamin h. levi & georgia brown, reasonable suspicion: a study of pennsylvania pediatricians regarding child abuse, 116 pediatrics e5 (2005) 750 colum. j. race & l. [vol. 11:733 makes a list of differential diagnoses—the list of possible causes of a condition—a report of suspected abuse may indicate that it is thought to be the leading cause, or it may rank as low as tenth on a list of differential diagnoses.47 in terms of the probability of abuse, the study found that twice as many clinicians thought that a report would represent a ten to thirty-five percent probability of abuse than a seventy-five percent probability.48 further, studies show that a clinician’s decision to report a reasonable suspicion can be influenced by non-medical factors. for example, “familiarity with the patient or family, including any previous involvement of the family with cps[;] . . . reference to elements of the case history[;] . . . use of available resources; and . . . clinicians’ perceptions of anticipated outcomes of cps intervention” were significant factors in one study.49 the study also found that clinicians were less likely to report when they had a significant relationship with the family,50 and a clinician’s (indicating that the responding clinicians reported seventy-three percent of the children they considered likely or very likely to be abused; and twenty-four percent of the children they considered possibly abused). the influence of probabilistic language such as this in child abuse diagnoses is problematized by another scholar. see steven c. gabaeff, recognizing the misuse of probabilistic language and false certainty in false accusations of child abuse, j. rsch. phil. & hist., dec. 2020, at 1. 47 levi & brown, supra note 46, at e7 (finding that twelve percent of clinicians responded that abuse would have to rank first or second on the list of differential diagnoses before it would be considered reportable; forty-one percent indicated a rank of third or fourth; forty-seven percent reported a rank from fifth to tenth on the list of differential diagnoses). 48 id. (thirty-five percent of pediatricians responded that, to report a suspicion, the probability of abuse would need to be ten to thirty-five percent; by contrast, fifteen percent required a probability of more than seventy-five percent. further, any one individual pediatrician was not necessarily internally consistent in the level of certainty they required: the average pediatrician required fifty to sixty percent probability that abuse occurred, but responded that child abuse could rank as low as fourth or fifth on the differential diagnosis list and still merit a report.). see also kuruppu et al., supra note 4, at 430 (finding that “each clinician seem[s] to have their own personal threshold of suspicion that would activate their reporting duty”). 49 risé jones et al., clinicians’ description of factors influencing their reporting of suspected child abuse: report of the child abuse reporting experience study research group, 122 pediatrics 259, 261 (2008). see also kuruppu et al., supra note 4, at 430 (citing “personal threshold of suspicion, knowing the family, having little faith in the system, and education” and training as significant non-medical factors influencing primary care physicians’ decisions to report). 50 this in itself can lead to disparate reports for low-income and black families who are less likely to have a primary care provider and more likely to 2021] mutual deference 751 decision not to report was influenced by doubt that it would benefit the family.51 further, past experiences of the clinician with the family regulation system lowered the likelihood that a suspicion resulted in a report.52 b. hospitals’ use of social risk factors and screening tools to detect maltreatment embed race and class disparities into medical opinions the low standard of “reasonable suspicion” is vulnerable to personal biases influencing a clinician’s decision to report. this leads to race and class disparities in reporting and has ripple effects on systemic views of child maltreatment. in turn, data about which children are reported by clinicians to be “neglected” or “abused”—whether or not they have been adjudicated legally as such—inform how clinicians are trained to look for signs of maltreatment, which in turn influence subsequent decisions to report. tracking of the use of skeletal surveys, full body x-rays that are often conducted when an injury is deemed suspicious of abuse, offers a clear example of racial disparities in medical investigations. studies have shown that non-white children presenting with head injuries are more likely to receive skeletal surveys,53 as are those who are uninsured or on public resort to an emergency room for medical care. rick hong et al., the emergency department for routine healthcare: race/ethnicity, socioeconomic status, and perceptual factors, 32 j. emergency med. 149, 155 (2006) (finding that black and hispanic patients were approximately twice as likely as white patients to be routine ed users, probably because of coinciding socioeconomic factors, primarily lack of insurance). 51 jones et al., supra note 49, at 264. 52 id. see also vernoica l. gunn et al., factors affecting pediatricians’ reporting of suspected child maltreatment, 5 ambulatory pediatrics 96 (2005) (finding that a decision not to report was independently linked to the following factors: men who have been in practice longer, have been deposed or testified in a related matter, or had been threatened with a lawsuit); mctavish et al., supra note 14 (providing qualitative feedback from mandated reporters, including clinicians, who cite negative experiences from reporting). 53 kent p. hymel et al., racial and ethnic disparities and bias in the evaluation and reporting of abusive head trauma, 198 j. pediatrics 137, 138 (2018) (finding skeletal surveys to be twice as likely to be ordered for non-white patients under three years old who presented with head injuries as white/non-hispanic patients; here, “evaluated” referred to radiologic skeletal survey and/or retinal examination by an ophthalmologist). see also wendy g. lane, racial differences in the evaluation of pediatric fractures for physical 752 colum. j. race & l. [vol. 11:733 insurance.54 even though socioeconomic status is a significant factor,55 the disparity in skeletal surveys between public and privately insured white patients has been shown to be greater than for black and latinx patients, who were more likely to receive skeletal surveys across the board.56 this disparity did not correlate with a positive diagnosis for abuse.57 one way that clinicians have attempted to structure the diagnosis of child neglect or abuse is evaluation of so-called “risk factors.” risk factors refer to conditions that are considered to be correlated with abuse or neglect. the factors span medical and non-medical concerns: poverty; past history of social services involvement, housing instability, unemployment, and drug use; maternal smoking; and being born to an unwed mother, to name a few.58 but because race is associated “to a shameful degree” abuse, 288 j. am. med. ass’n 1603 (2002) (finding that the effect of race on ordering of skeletal surveys and reporting to cps remains significant). 54 christine w. paine & joanne n. wood, skeletal surveys in young, injured children: a systematic review, 76 child abuse & neglect 237, 242 (2018). 55 antoinette l. laskey et al., influence of race and socioeconomic status on the diagnosis of child abuse: a randomized study, 160 j. pediatrics 1003, 1003 (2012) (finding greater likelihood that physician would label a fracture as abuse in patients with low socio-economic status (ses) and remain unsure about the etiology in patients with high ses, but not finding an independent effect for race). see also emalee g. flaherty et al., from suspicion of physical child abuse to reporting: primary care clinician decision-making, 122 pediatrics 611 (2008) (reviewing studies finding no racial differences in reporting when families did not have private insurance but finding also that having private insurance can protect white children from being reported). 56 joanne n. wood et al., disparities in the evaluation and diagnosis of abuse among infants with traumatic brain injury, 126 pediatrics 408, 408 (2010) (the difference in skeletal survey performance for infants with public or no insurance versus private insurance was greater among white (82% vs. 53%) infants than among black (85% vs. 75%) or hispanic (72% vs. 55%) infants.). 57 see id. (the probability that the survey would lead to a diagnosis of abuse among white infants was higher (61%) than among black (51%) or hispanic (53%) infants.); paine & wood, supra note 54, at 246 (noting that, although black children and children with public or no insurance were evaluated with skeletal surveys more often than white infants and infants with private insurance, black infants had similar likelihood of having a positive skeletal survey compared to white infants). 58 risk factors that contribute to child abuse and neglect, child welfare info. gateway, child.’s bureau, https://www.childwelfare.gov/ topics/can/factors [https://perma.cc/s882-l74b] (last visited may 22, 2021). see also caitlin a. farrell, community poverty and child abuse fatalities in the united states, 139 pediatrics (2017); hillary w. petska & lynn k. sheets, sentinel injuries: subtle findings of physical abuse, 61 pediatric clinic n. 2021] mutual deference 753 with clinicians’ perceptions of social risk factors, this leads to over-reporting and over-investigation of black and brown communities.59 reporting families exhibiting these risk factors at a higher rate perpetuates stereotypes around risk,60 without providing an accurate assessment of risk. moreover, one’s approach to risk factors is itself subjective; broad use of risk factors to diagnose maltreatment can lead to significantly varying results.61 to reduce the role of personal bias and alleviate race disparities in reporting, some medical institutions use screening tools, or questionnaires, that aim to standardize identification of am. 923 (2014) (citing young parental age, mental health disorders, exposure to domestic violence as risk factors for child physical abuse); cindy w. christian, the evaluation of suspected child physical abuse, 135 pediatrics 1337, 1339 (2015) (citing literature claiming that “[r]isk factors for infant abuse include maternal smoking, the presence of more than 2 siblings, low infant birth weight, and being born to an unmarried mother. children with disabilities are at high risk for physical, sexual, and emotional abuse. young, abused children who live in households with unrelated adults are at exceptionally high risk of fatal abuse, and children previously reported to cps are at significantly higher risk of both abusive and preventable accidental death compared with peers with similar sociodemographic characteristics.” (citations omitted)) 59 daniel m. lindberg, bias and objectivity when evaluating social risk factors for physical abuse: of babies and bathwater, 198 j. pediatrics 13, 13 (2018). 60 id. (arguing that clinicians are “ill-equipped” to apply social risk factors and instead “use their intuition to estimate social risk”). 61 heather t. keenan et al., social intuition and social information in physical child abuse evaluation and diagnosis, pediatrics, november 2017, at 1. this study bears mentioning for illustrating how use of risk factors and personal intuition lead to varying results in diagnoses. keenan et al. used three scenarios to demonstrate how the diagnoses of child abuse pediatricians (caps) vary depending on the type of information that is available about a family. first, caps received all the information a clinician would get from meeting the family; the study labeled this the “gut reaction”: social intuition, social information, risk indicators, and social cues, as well as a full medical report. second, the cap received the social information and the medical history, but none of the perceptions from meeting the family or information about race. third, the cap received only the medical history. the study found that the more information the cap had about the family, the more diagnostic certainty caps reported. but agreement among caps dropped when social information was present. in one out of five diagnoses, knowledge of social information reversed the diagnosis when all other information held constant. further, caps who met the family performed a less complete evaluation than the other two categories, suggesting that “meeting the family encourages an intuitive thinking pathway (‘gut feeling’).” id. at 5–6. as the article points out, if a cap’s intuition is based on social risk factors that are correlated with but not causative of child abuse, it leads to over-reporting for certain groups. 754 colum. j. race & l. [vol. 11:733 risk factors.62 but, similar to risk factor evaluations, these tools can easily perpetuate the precise racial and class biases that they are designed to dampen.63 for example, one study found that a screening tool used before administering drug tests to birthing parents inadvertently reinforced “the process of identifying more black than white women.”64 the protocol mandated that women would be ordered to test based on factors that were more common among black parents, “including no prenatal care, an earlier positive toxicology test during the pregnancy, current intoxication or signs of placental abruption[,] . . . limited/late prenatal care, having children out of care, past drug or alcohol problems, and previous negative birth outcomes.65 these 62 see, e.g., lindberg, supra note 59; mauricio a. escobar et al., development of a systematic protocol to identify victims of non-accidental trauma, 32 pediatric surgical int. 377 (2016); eveline c.f.m. louwers et al., effects of systematic screening and detection of child abuse in emergency departments, 130 pediatrics 457 (2012). 63 hirschman & bosk, supra note 10, at 352 (“because racial inequalities are best diagnosed as reflecting structural racism not (just) individual bias, efforts to reduce racial inequality through standardizing gatekeeping decision making may have little effect.”); flaherty et al., supra note 55, at 612, 617 (discussing “injury encounter cards” that clinicians would fill out when they diagnosed an injury). among questions about the type of injury and its seriousness, are questions around social factors and questions that ask for a practitioner’s individual opinion: parents appear to “have little social support,” parents have a “history of drug or alcohol use,” parents are a “victim of [child/spousal] abuse,” parent/child interactions cause concern, prior involvement with cps. id. see also louwers et al., supra note 62, at 458 (evaluating the effectiveness of a checklist, the list—labeled the “escape form” to be used in emergency departments—included questions that rely on the practitioner’s intuition: “is the behavior of the child/the carers and the interaction appropriate?” and “are there any other signals that make you doubt the safety of the child or other family members?”). 64 s. c. m. roberts et al., does adopting a prenatal substance abuse use protocol reduce racial disparities in cps reporting related to maternal drug use? a california case study, 35 j. perinatology 146, 149 (2015). see also maternal mortality and morbidity in new york city: hearing before the n.y. city council’s comms. on hospitals, health, and women & gender equity, dec. 7, 2020 (joint written testimony of ancient song doula services, the bronx defenders, movement for family power, national advocates for pregnant women, and the new york civil liberties union) (providing additional background on the issue of testing of pregnant women leading to disproportionate outcomes). 65 roberts et al., supra note 64, at 147. even with universal screening, black women have been shown to be four times more likely to be reported for suspected maltreatment than white women, despite the fact that all women were screened. sarah c.m. roberts & amani nuru-jeter, universal screening for 2021] mutual deference 755 indicators are more common among black parents, the last being a salient example of how measures like screening tools can perpetuate the cycle of the foster system.66 the law asks clinicians to make reports of suspected child maltreatment to a system that is unable—or unwilling—to decipher a clinician’s reasonable suspicion at the pace necessary to avoid catastrophic harm to a family. the obligation to report and the instruction to defer all investigation to the system obscures critical information, such as the gravity of the concern; whether it is a medical diagnosis or a personal concern; the role of screening tools or hospital policies that triggered the report rather than an acute safety concern. instead, all these issues receive the deference given to a medical opinion. the report may appear to the system as a medical diagnosis, but any diagnostic error that results from this report is not examined.67 instead, the process of reporting enhances the heuristic associations between abuse, neglect, race, and class. iv. how mutual deference harms families in practice formally, parents’ due process rights are strongest when facing the possible removal of their child from their care:68 in new york, the state must prove that the child would be at “imminent risk” of harm in their parents’ care, and the parent has a right to an emergency hearing to contest a removal.69 whether to a remove a child is first examined at the alcohol and drug use and racial disparities in child protective services reporting, 39 j. behav. health serv. & rsch. 3, 3 (2012). 66 see ketteringham et al., supra note 6. 67 see nat’l acads. of sciences, engineering, & med., improving diagnosis in health care 56 (2015) (“prolonged learning in a regular and predictable environment increases the successfulness of heuristics, whereas uncertain and unpredictable environments are a chief cause of heuristic failure. there are many heuristics and biases that affect clinical reasoning and decision making.” (citations omitted)). see also ruth gilbert et al., recognizing and responding to child maltreatment, 373 lancet 167 (2009) (commenting on the difficulty of understanding the meaning of a “substantiated” report, in that it can be a reflection of an agency’s determination of risk of future harm rather than confirmation of the reporter’s concern). 68 see, e.g., stanley v. illinois, 405 u.s. 645 (1972) (outlining parents’ fundamental right to make decisions regarding the care and custody of their children). 69 n.y. fam. ct. act § 1028 (establishing the state’s burden and the right of a parent facing possible removal of a child to an emergency hearing to contest a removal or request the return of their child from foster care). 756 colum. j. race & l. [vol. 11:733 arraignment—the initial appearance in court when a judge makes a determination about a child’s placement by considering the reporter’s narrative, the caseworker’s investigation, the parent’s counter-narrative, and possibly the child’s position. if a child is removed and a parent contests it, an emergency hearing commences in which the question of imminent risk is reviewed in more detail.70 but when faced with a report from a medical setting, judges routinely remove a child based on a clinician’s “reasonable suspicion” alone. the investigation by the caseworker likely reiterates the clinician’s report; the parent’s defense alone is unlikely to nullify any medical concern. there are no medical records available yet and certainly no live testimony from the doctor to provide context to the report. in these cases, the removal effectively transforms the provider’s “reasonable suspicion” into a finding of “imminent risk.”71 this section illustrates mutual deference in practice, using three case examples from bronx family court. in each case, the clinician’s decision to report, concededly, falls squarely within the purview of “reasonable suspicion” contemplated by the statute. but in each case, the system interpreted the clinician’s report in the most severe light possible, presuming the worst of the parents, all of whom are parents of color. the need, or perceived need, for countering medical information obscured the legal system’s ability, or justified its unwillingness, to issue orders that would keep the family intact. instead, these families were separated based on the initial report alone. 70 see nicholson v. scoppetta, 3 n.y.3d 357, 378 (2004) (“the court must do more than identify the existence of a risk of serious harm. rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. it must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests.” (emphasis added)). 71 even in cases where the parent’s attorney does have additional medical information at the arraignment, the judge must hear that evidence in the context of a formal hearing. that hearing will be scheduled on a different day and may take days, weeks, or months to complete, depending upon the congestion of the particular courthouse. where medical concerns are at stake, these hearings are more prolonged than other hearings because of the delay of obtaining expert medical opinions. 2021] mutual deference 757 a. a clinician may refer a family to the family regulation system for supportive intentions; the court interprets the report as imminent risk pending a hearing anthony,72 a seven-year-old child with sickle-cell anemia, missed seven appointments for his condition in two months. the hospital made a report of suspected neglect, stating that anthony needed to be monitored closely because, if he developed a fever, he would need immediate medical attention. the report stated that anthony had a fever the previous week, and his mother, ms. oros, did not bring him to the doctor. based on this report, acs removed anthony from his mother on an emergency basis and filed a neglect petition against her in family court. the petition alleged medical neglect for the missed appointments and stated that ms. oros “admitted” to missing the appointments and that she found them “overwhelming.” the petition alleged that, although ms. oros knew she should bring her son to the hospital immediately if he developed a fever, she did not do so for a week. at the arraignment, acs asked the judge to continue the removal. the judge deliberated: “this is a difficult case because . . . it really depends on how . . . this child is doing medically.” she further commented, “[h]ere’s the problem i have. i don’t have enough medical information.”73 the judge continued the removal of anthony from his mother, and ms. oros requested a hearing. in the meantime, anthony lived with his maternal grandmother while the court awaited further medical information. this arrangement remained in effect for almost two months. two months after the filing of the petition and over twenty court appearances later, anthony’s 72 the parent gave permission for these facts to be shared, but names have been changed to protect privacy. 73 transcript of arraignment, matter of a. (bronx cnty. fam. ct. july 6, 2017) (docket number withheld to protect client confidentiality). 758 colum. j. race & l. [vol. 11:733 treating physician testified in family court about her concerns when making the report.74 the testimony revealed that, although the hospital contacted acs out of a concern that anthony had a high fever, his doctor did not intend for the child to be taken from his mother’s care. instead, the doctor testified that one motivation for calling acs was the hope they could help with “case management”: assistance to the mother with the appointments and having in-home services put in place to help with medication management. the same day that the judge heard from the doctor, she found that there was no imminent risk to anthony in his mother’s care. he was sent home with an order that the child be taken immediately to the hospital if his temperature exceeded 101 degrees. notably, these were the same orders the attorneys for anthony‘s mother had requested at the arraignment. *** anthony’s two-month separation from his mother, which was contrary to any medical advice, is a direct effect of mutual deference. that the clinician’s concern resulted in a call of suspected child maltreatment in the first place is a response to the incentives on and guidance to mandated reporters to defer quickly to the state. that the court system received incomplete information from the treating physician reflects the failure of the family regulation system to adequately investigate medical concerns. the court’s paralysis when faced with a medical report reflects the knee-jerk deference of the legal system to the clinical opinion. finally, that ms. oros is a single black mother cannot be overlooked when understanding the legal system’s prioritization of prosecution over supportive interventions in this case.75 74 given the challenge of coordinating schedules between the court and the physicians, and the delay of obtaining medical records for all parties to review before a physician testifies, this amount of delay is typical. 75 one month into this hearing, acs revealed that it had yet to make a single referral to a supportive service to ms. oros, and did so only upon order of the court. that referral was for in-home medical preventive services, which had a significant waitlist. 2021] mutual deference 759 embedded in mutual deference is a willingness to disrupt the parent-child relationship pending investigation and the presumption that the state could address anthony’s condition better than his mother, a presumption that applies to parents of color at a far greater rate than white families.76 b. an injury is severe, but the doctor’s true concern is non-medical rysheen summers77 brought his four-month-old daughter to the hospital with severe burns on her legs. five days earlier, mr. summers had left the bathroom briefly while his daughter was in the bathtub with the water running and drain unplugged. the water temperature in his homeless shelter spiked and she was badly burned. scared to go to the hospital for fear of losing their children, he and his girlfriend treated the burns themselves. when they did seek medical treatment, the hospital notified the police and acs. the parents were arrested and charged with felonies; their baby and older child were removed from their care. the parents were charged with abuse— intentionally burning their baby—in family court. with no other information than the report from a hospital of the burn and acs’s allegations of abuse, the judge continued the removals and placed the children in kinship foster care. while the family remained separated, the attorneys for acs maintained that they would call an expert witness at trial to prove abuse.78 76 see cooper, supra note 1 at 258. 77 mr. summers gave permission for these facts to be shared, and requested that his name be included. 78 discovery was not expedited because mr. summers did not exercise his right to an emergency hearing to request the return of his children, as is his right pursuant to n.y. fam. ct. act § 1028. this is because he faced felony charges in criminal court; any hearing in family court would necessarily require him to testify; defendants are often advised not to testify in open court right after serious criminal charges are filed. as a result, acs was not immediately required to produce the medical records in discovery. mr. summers, through his counsel, obtained them, but for bureaucratic reasons this took 760 colum. j. race & l. [vol. 11:733 but the medical records later revealed that the child abuse pediatrician (cap) who examined the baby at the hospital and who made the initial report believed the burns were accidental, as the parents had described. instead, the basis of the call was her concern about the parent’s judgment in leaving the baby unattended in the bathtub and declining to seek medical care earlier. based on these medical records, acs ultimately agreed to settle the case with a neglect finding based on parental judgment, withdrawing the allegation that the injury was intentionally inflicted. once the court posture reflected the reality of the medical concern, the parents were able to move forward in their case, expanding their time with their children towards reunification. *** here, the family regulation system assumed that mr. summers, a black man in his twenties, had intentionally burned his baby. the system rushed to remove the children and file abuse allegations without speaking to the source of the report about the true basis of her concern. the court took severe measures under the assumption that a doctor would testify to abuse. ultimately, the basis for the report was parental judgment—leaving a baby unattended in a bathtub, particularly with unpredictable temperatures, and delaying medical care. these are not medical issues. at worst, they reflect lack of foresight about potential dangers that come with leaving a baby unattended, even if the drain was unplugged, which it was. more accurately, they reflect inequity in housing safety and acute familiarity with the power of the state to remove children which discourages many from seeking prompt medical attention. while arguably these issues did not have to be prosecuted at all, once in front of a judge, orders could have addressed these issues. the conditions allowing for the children to be returned to their parents could have been issued from the start, including taking several months. this is another harm of over-inflation of charges in these cases: parents must navigate multiple court cases with conflicting incentives. 2021] mutual deference 761 a first aid class, an order to seek timely and regular medical attention for future concerns, and a parenting class in the form of parent-child therapy. here, the clinician’s report was not only elevated to imminent risk, but also inflated to abuse, and this resulted in prolonged separation.79 c. doctors can make mistakes, and critical legal decisions are based on those mistakes; litigation to resolve them results in prolonged separation of families ms. tolbert80 received a call from her partner that their four-month-old daughter, beatrice, had rolled off their bed when he stepped away to take a work call. beatrice had a bad bruise on her eye, and the parents rushed her to the hospital. at the hospital, ms. tolbert was asked to agree to a ct scan and then a full skeletal survey of her baby; she agreed, assuming it was for medical purposes. subsequently, she learned beatrice was being held for “investigation.” when ms. tolbert learned from the cap that beatrice had a healing skull fracture and two healing rib fractures, she realized the hospital did not believe her daughter had fallen. they thought she had been abused—repeatedly. once beatrice was ready for discharge, acs filed an abuse petition in family court requesting that she be removed from her parents’ care and put in foster care.81 79 this case illustrates the ongoing harm of hospitals’ close relationship with the police and the family regulation system. first, families that are familiar with the family regulation system avoid seeking medical care out of fear that they will lose their children. second, the disproportionate legal response stifles adjudication. faced with felony charges in criminal court, it was not advised for mr. summers to request an immediate hearing in family court, in which he would have to testify, before discovery had taken place in either forum. this resulted in unfortunate delay in obtaining the medical records that ultimately brought the true concern to light. 80 ms. tolbert gave permission for these facts to be shared, but names have been changed to protect privacy. 81 the application of acs was for beatrice to be in stranger foster care. but because ms. tolbert’s mother was able to move to the bronx from out of state, beatrice was able to stay with her grandmother with her mother in the home. however, pending litigation, ms. tolbert was not allowed to be alone with 762 colum. j. race & l. [vol. 11:733 ms. tolbert’s lawyers provided the records and radiology to a neurosurgeon and a radiologist from different hospitals, who confirmed that the pediatrician’s diagnosis was incorrect and in fact, the skull fracture did not exist. the radiologist also confirmed that the location and nature and appearance of the two healing rib fractures suggested that they had been caused accidentally, and that it was likely that they had been asymptomatic. based on this alternative medical opinion, ms. tolbert and her partner asked for an emergency hearing for the return of their baby. they were ultimately successful in that hearing, but more than two months passed from the date of filing to the time they were reunified with their child.82 *** ms. tolbert’s case illustrates three aspects of mutual deference. first, the system is unequipped to investigate a physician’s reasonable suspicion. here, acs relied on the opinion of one cap83 who suspected that this child had been abused based on erroneous interpretations of radiology. even though the court ultimately deemed the cap’s opinion a “rush to judgment,” 84 her suspicion functioned as the basis of “imminent risk” for two and a half months while the case was litigated.85 beatrice, and beatrice’s father was not allowed to be in the home at all, except for during scheduled visits. 82 because this hearing happened during the early stages of the covid-19 pandemic and all doctors were able to testify virtually, two months was likely less time than the litigation would have taken in person. 83 child abuse pediatrics is a sub-specialty of pediatrics that emerged in 2009; in new york city, caps lead child advocacy centers, which are institutes within hospitals that collaborate with law enforcement in child abuse investigations. child advocacy centers were established by law in 2006 under new york social services law sections 423 and 423-a. 84 matter of b.d. (bronx cnty. fam. ct. aug. 7, 2020) (passidomo, j.) (docket number withheld to protect client confidentiality). 85 although not the precise focus of this article, this highlights the role of child abuse pediatricians and the harm that flows from the deference that they receive. the ethical concerns flowing from caps are myriad. for a comprehensive review of the ethical concerns relating to the role of child abuse pediatricians, see george j. barry & diane l. redleaf, medical ethics concerns in physical child abuse investigations: a critical 2021] mutual deference 763 second, the distrust with which ms. tolbert, a black mother, was treated at the hospital led to tangible medical harm.86 because the hospital considered the story of her baby rolling off the bed unlikely, beatrice was subjected to unnecessary radiation exposure and two nights in the hospital at the height of the covid-19 pandemic. these tests revealed findings that reinforced the hospital’s suspicion and exacerbated the legal intervention, even though the findings turned out to be benign. third, ms. tolbert’s only tool to challenge one doctor’s suspicion was litigation. even if a parent is assigned an attorney with the resources to retain experts, the cost of litigation is delay.87 the over-clogged court system and doctors’ demanding schedules result in significant scheduling challenges. delay in these cases means children remain separated from their parents, resulting in lasting harm.88 *** unjustified elevation of a clinician’s concern to evidence of imminent risk is the harm of mutual deference. at best, mutual deference fails to ensure that the players in the system— clinicians, caseworkers, lawyers, judges—have the information necessary to perform their job and make informed decisions at each stage of the case. at worst, mutual deference provides perspective (2014). what is most relevant and representative in ms. tolbert’s case is that caps are afforded deference even when rendering opinions outside their training that can only be made reliably by radiologists, neurologists, orthopedists, and other medical specialists because “[t]he idea that the child abuse pediatrician’s has greater expertise than other subspecialists has been more broadly accepted than is justified, especially if the child abuse pediatrician fails to fully consult with subspecialists in forming her abuse conclusions.” id. at 4. see also rachel blustain, doctors say they shook their baby. they didn’t, daily beast (apr. 13, 2017, 2:37 pm), https://www.thedailybeast.com/doctorssaid-they-shook-their-baby-to-death-they-didnt. 86 in public testimony delivered by ms. tolbert in an out-of-court setting referring to her experience at the hospital with beatrice, she commented, “i have never felt more black[].” 87 see, e.g., horan-block & newman, supra note 41, at 410 (2019) (showing that even where early and aggressive litigation of suspected physical abuse results in reunification of parents and children, the delay is considerable). in 2019, litigation of cases of serious abuse shortened the length of separation from an average of 595 days without a hearing to 226 days with a hearing. id. 88 vivek s. sankaran & christopher church, easy come, easy go: the plight of children who spend less than thirty days in foster care, 19 u. pa. j.l. & soc. change 207, 210–13 (2016). 764 colum. j. race & l. [vol. 11:733 insulation to the players in the system who decline to examine the biases that inform their role in a traumatic intervention: why an investigation was triggered, why a removal was conducted, and why it was legally sanctioned by the courts.89 v. concluding remarks: resisting mutual deference the relationship between the family regulation system and medical providers is historical; in fact, when mandated reporting was first established in law, many states labeled physicians as the only mandated reporters.90 since its inception, therefore, the family regulation system has depended on medical professionals to provide a pool of families to investigate and surveil. but if society values the therapeutic relationship, why would it delegate surveillance efforts to clinicians when that surveillance disrupts the patient-doctor relationship so fundamentally?91 a report of suspected child maltreatment carries immediate side effects and grave risks for the family and greater community. there is the medical harm—possible radiation, testing, and stress; the loss of trust from the family, the loss of confidentiality, and the loss of the patient’s continuity of care. there is long-term harm, too—the lasting trauma of removal for 89 see, e.g., annette r. appell & bruce a. boyer, parental rights vs. best interests of the child: a false dichotomy in the context of adoption, 2 duke j. gender l. & pol’y 63, 66 (1995) (“judges must be careful to distinguish cultural or value based differences in child-rearing practices from parental conduct that falls beneath minimally acceptable parenting standards and raises a legitimate concern about the health, safety, or welfare of the child.”). 90 monrad g. paulsen, child abuse reporting laws: the shape of the legislation, 67 colum. l. rev. 1, 3 (1967) (citing the reasons the children’s bureau placed the primary duty to report on physicians for three reasons: physicians were in a unique position of having access to information about abuse when a caretaker would seek medical attention for a child; the special skill and training of the physician to detect instances of child abuse; reluctance of physicians to report for fear of “meddling” or violating “professional confidence”). 91 the american college of obstetrics and gynecology comments: “legally mandated testing and reporting puts the therapeutic relationship between the obstetrician-gynecologist and the patient at risk, potentially placing the physician in an adversarial relationship with the patient.” substance abuse reporting and pregnancy: the role of the obstetrician-gynecologist, committee opinion no. 473, comm. on health care for underserved women (january 2011) https://www.acog.org/clinical/clinical-guidance/committee-opinion/ articles/2011/01/substance-abuse-reporting-and-pregnancy-the-role-of-theobstetrician-gynecologist [https://perma.cc/sz3a-g24n]. 2021] mutual deference 765 the child no matter how short the separation; as well as housing, medical, and educational disruption. more broadly, the fear of legal intervention at hospitals undermines the public policy interest in encouraging prompt medical attention for children. the systemic harm of mutual deference is the reinforcement of links between medical and legal terms that divert black and brown families into the family regulation system at disproportionately high rates. with mandated reporting, these considerations are irrelevant to the instruction to report a suspicion. a clinician, tasked with the obligation to “do no harm,” is forbidden from considering the potential harms of initiating this course of action. in this way, the clinician’s obligation to the state supersedes its obligation to the patient. this tension can only be resolved by presuming that making the report does protect the patient, but there is no mechanism to ensure that the balance of harms weighs in favor of the patient. mutual deference shows it often does not. it is only through removing clinicians’ reporting obligations to the state that clinicians can be empowered to reconceptualize a report to the family regulation system as an invasive treatment—one with risks and harmful side effects that often dissuade clinicians from choosing a particular course of treatment. once seen as a dangerous intervention, mandated reporting can receive the critical examination that other diagnoses—and diagnostic errors—receive. removing liability around reporting creates space for interrogation of the classand race-based associations that medical and legal institutions have made between neglect, abuse, and the challenges endemic to lowincome communities of color. more broadly, it can trigger—or even require—diversion of resources to therapeutic rather than prosecutorial methods of addressing the root causes of perceived and real challenges.92 this strengthens community programs, rather than state agencies, towards the dissolution of the family regulation system entirely. efforts to re-envision how support for and protection of families can move away from state-sanctioned violence and 92 see cooper, supra note 1,at 251 (“[c]hanging the players or elements has the least effect on the system, but changing dynamics between elements and especially the ultimate purpose of the system has the greatest effect.”). 766 colum. j. race & l. [vol. 11:733 towards strengthening families within their communities93 must critically examine the role of hospitals in establishing the current system. hospitals hold tremendous potential to support families by redirecting their resources and expertise back into the community and away from state surveillance. this begins with removing mandated reporting responsibilities. 93 dorothy roberts & lisa sangol, black families matter: how the child welfare system punishes poor families of color, appeal (mar. 26, 2018), https://theappeal.org/black-families-matter-how-the-child-welfare-systempunishes-poor-families-of-color-33ad20e2882e/ [https://perma.cc/wlr4-eg29]; erin miles cloud, toward the abolition of the foster system, s&f online, http://sfonline.barnard.edu/unraveling-criminalizing-webs-building-police-freefutures/toward-the-abolition-of-the-foster-system/ [https://perma.cc/ngy6vy7j]. microsoft word thompson final v.2.docx 2016 columbia journal of race and law 27 midwives and pregnant women of color: why we need to understand intersectional changes in midwifery to reclaim home birth danielle thompson* the vast majority of births occur in hospitals attended by physicians. however, this has not always been the case. prior to the turn of the twentieth century, home births held the majority and were primarily attended by midwives, the majority of whom were women of color and immigrant women. the move toward hospital birth is rarely discussed today and midwifery and home birth, though now both experiencing a small comeback, are often viewed with skepticism and fear. this note discusses the raced and gendered history of this change in american birth norms and argues that the racist and sexist motivations and phenomena that prompted the move into hospitals and away from midwives is relevant to understanding current birth trends and statistics. the note begins with an overview and discussion of the raced and gendered history of american midwifery. next, the note explains the history of the medicalization of pregnancy and birth–here, exerting excessive medical rhetoric into and oversight over reproduction, and especially women of color’s reproduction, in order to control it. finally the note considers current home birth and midwifery trends and statistics and their connection to the race and gender discrimination of twentieth century birth and midwifery. the note concludes that the racist and sexist underpinnings of the change from home to hospital birth still operate in our current birthing systems to keep women of color in hospitals and out of the midwifery profession. i. introduction ............................................................................................... 28 ii. history of midwifery and midwifery regulation ............................. 29 a. turn of the century midwives and their feminist benefits ............. 29 b. turn of the century physicians and anti-midwife sentiment ........... 30 c. explicit restrictions on midwifery practice ....................................... 32 1. massachusetts's midwifery ban .......................................................................... 32 2. alabama regulation .......................................................................................... 34 3. california regulation ......................................................................................... 34 d. midwifery education and its exclusion of women of color ............. 35 1. federal actions: the sheppard–towner act ...................................................... 35 2. other subtle yet detrimental state regulatory endeavors ................................. 36 3. schools of midwifery ........................................................................................... 36 28 midwives and pregnant women of color vol. 6.1 iii. the medicalization of women of color’s reproduction ................ 36 a. the perceived degeneracy of women of color ................................. 37 1. the history of medicalization ............................................................................ 38 2. sterilization, birth control, and the denial of autonomy .................................. 40 b. medicalization today ......................................................................... 42 iv. the new home birth movement and midwives today ...................... 43 a. white home birth movement ............................................................ 43 v. conclusion ................................................................................................... 45 i. introduction on january 26, 2012, national public radio (npr) published an article stating that, according to a new government study, home births have been rapidly increasing in popularity in the united states.1 the article mentioned several doctors, midwifery advocates, and scientists who affirmed that midwife-assisted home birth is a safe alternative to hospital birth for low-risk pregnancies. it also discussed the personal story of a washington d.c. based yoga instructor, kate miller, who had a perfectly safe and very positive home birth experience.2 overall, the article was supportive of the new trend. however, it omitted an explanation of one odd fact—the increase in home births is not occurring among all women. instead, “the trend appears to be driven primarily by older white women…”3 npr could have included the fact that white women are actually four times more likely to have a midwife-assisted home birth than are women of color, and that less than five percent of midwives identify as black or hispanic.4 although this has not been the case historically, npr did not question why the new trend is so racially stratified. this note will focus on answering this question. the united states has seen a dramatic shift in midwifery practice and prominence in the past century. before the turn of the twentieth century, lay midwives5—most of whom were women of color and/or * j.d. 2016, columbia law school; b.a. 2012, university of california santa barbara. the author would like to thank professor jessica bulman-pozen for her invaluable guidance and editing contributions. the author would also like to thank the staff of the columbia journal of race and law and rebecca ramaswamy for their editing contributions and steadfast encouragement. 1 rob stein, home births grow more popular in u.s., npr.org (jan. 26, 2012), http://www.npr.org/blogs/health/2012/01/26/145880448/home-births-grow-more-popular-in-u-s. 2 id. 3 id. 4 joyce a. martin et al., nat'l vital statistics rep., ctr. for disease control and prevention, births: final data for 2010, 53 table 20, (aug. 28, 2012), available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_01.pdf; kerri durnell schuiling et al., findings from the american college of nurse-midwives’ membership surveys: 2000-2003, 50 j. midwifery and women’s health 1, 8-15 (2005). 5 an american lay midwife was historically and commonly considered one who had learned to practice midwifery through passed-down knowledge, and first-hand experience, and apprenticeship. gertrude jacinta fraser, african american midwifery in the south: dialogues of birth, race and memory 26 (1998). today, lay midwives, often licensed as certified professional midwives (cpms) or direct-entry midwives, are trained midwives without a nursing degree. a nurse-midwife is a certified nurse practitioner with supplementary training in midwifery. 2016 columbia journal of race and law 29 immigrants—delivered the majority of babies in the country.6 shortly thereafter, a strong anti-midwifery campaign, coupled with racism, gained traction, quickly pushing midwives of color out of the profession and into virtual extinction.7 the united states is now experiencing a renewed movement towards natural and non-hospital birth that has begun to bring the midwife out of the shadows of history. 8 despite the resurgence, modern midwives are very rarely women of color, and they no longer predominantly serve women of color.9 the profession has changed drastically, yet very few people seem to be asking why. this note argues that these demographic changes are not only symptoms of the white-centeredness of feminist and pregnancy discourse today, but also that this historical shift is intimately connected to the excessive regulation and medicalization of pregnant bodies of color that began alongside the anti-midwifery campaign. both have led not only to the vastly disproportionate and discriminatory treatment of black and hispanic pregnant women and midwives, but also to the perceived disconnection of the predominantly white resurgence of midwife-assisted home birth to the oppressive structures which systematically pushed women and midwives of color into an overregulated birthing scheme. in part ii, this note will discuss the social and regulatory history of american midwives. in part iii, this note will discuss the medicalization of pregnancy, labor, and delivery as women of color have experienced them. in part iv, this note will discuss the new trends toward home and non-hospital birth and the more current demographics of the midwifery profession. this note will then conclude by arguing that women and midwives of color have been largely absent from the recent birthing trends because of a history of legal and social oppression and their disenfranchisement within the birthing system. in short, midwifery regulation was—and is—part of a bigger endeavor to overregulate and medicalize women of color. this note will ultimately advocate for greater inclusion of women and midwives of color in the home birth movement through an intersectional re-centering of the relevant discourses. but it will also argue that neither the medicalization of pregnant women of color, nor the regulation of midwives of color, can be fully understood unless understood together. finally, the current home birthing trends cannot be fully understood or made more racially inclusive without first understanding why they are racially divided. ii. history of midwifery and midwifery regulation a. turn of the century midwives and their feminist benefits in colonial united states, midwives attended most births.10 it was common for towns in the north and plantations in the south to have a town or resident midwife.11 on southern plantations, the midwife was often an enslaved woman.12 even as recent as 1900, midwives attended at least half of american births.13 in black and immigrant communities, these numbers were far greater: in 1918, for example, almost ninety percent of southern black women’s births were attended by midwives, and in 1908, about ninety percent of laboring italian-immigrant women in chicago used midwives.14 there were, of course, some white midwives what is a midwife? midwives alliance north america, http://mana.org/about-midwives/what-is-a-midwife. for the purposes of this paper, the term “midwife” will most often refer to lay midwives in section one unless otherwise specified. 6 judy b. litoff, american midwives: 1860 to the present 27 (1978). 7 see id. (arguing that the racism and sexism of the era fueled the anti-midwifery campaign). 8 see supra note 1. 9 martin, supra note 4; schuiling, supra note 4. 10 supra note 6 at 4. 11 id. 12 id. 13 id. at 27. 14 id.; see also, sharon .a. robinson, a historical development of midwifery in the black community: 1600-1940, 29 j. nursemidwifery 247, 250 (1984) (affirming that midwives attended the vast majority of black women’s births before and 30 midwives and pregnant women of color vol. 6.1 at the turn of the 20th century; however, the majority of midwives in northeastern states were immigrant women, and the majority in southern states were older black women, often called “granny" midwives.15 black midwives were typically trained through apprenticeships with older, more experienced female family members or peers.16 at the turn of the century, the average cost of a midwife's services—including labor, delivery, postnatal care, housekeeping, and mother's help—was between two and ten dollars.17 by comparison, the delivery services of a physician cost between ten and twenty five dollars, with extra costs for preand post-natal care.18 not only did low-income women of color prefer midwives for their lower cost, but also, as a 1924 survey out of texas noted, women preferred to have the hired service of midwives because they were "really worth more" than physicians.19 american women thought the comfort of having another woman or group of women present during birth, as opposed to a male doctor, was as important a factor as cost. judith leavitt explains that women benefited from the psychological support and practical help from other women, friends, neighbors, and relatives until they began delivering their babies in hospitals.20 laboring women also received unique comfort from midwives and other female birth attendants, as "only a woman can know what a woman has suffered and is suffering."21 pre-hospital birthing was thus something of a feminist endeavor in which women wanted and needed only each other, because they knew that their specific female experience made them more equipped than any male physician to aid a woman in a non-complicated labor and delivery. b. turn of the century physicians and anti-midwife sentiment the once prominent and empowering feminist understanding of the birthing process changed after the turn of the twentieth century. as hospital births grew in prominence and male physicians began to attend more births, the “presence of this male authority figure changed the power structure in the [birthing] room.”22 this anti-feminist power shift denied women—who were already seen as socially inferior and less capable than men—authority over their own bodies and births. for black and immigrant women, who in the nineteenth and early twentieth century heavily relied on midwives, this anti-feminist power shift—which was specifically anti-black feminist, since almost all physicians at the time were white men—was more severely felt. in the nineteenth and early twentieth centuries, physicians were rarely trained specifically in childbirth and had less experience in labor and delivery than midwives. although physicians appeared in the birthing room as early as the mid-eighteenth century, the first record of any medical student viewing a live birth during training was not until 1850, about a century later.23 indeed, it was not until around 1820 that physicians were given substantive, formal medical training before practicing medicine or delivering babies.24 despite their lack of training or experience in obstetrics,25 by the turn of the century, physicians attended almost fifty percent of american deliveries.26 a 1910 study showed that the majority of schools offered such poor training to the directly after the turn of the twentieth century). 15 id. at 29, 31. 16 fraser, supra note 5, at 6 17 litoff, supra note 6, at 28 18 id. 19 id. at 29; see also, stacy a. tovino, american midwifery litigation and state legislative preferences for physician-controlled childbirth, 11 cardozo women’s l. j. 61, 74 (2004). 20 judith walzer leavitt, brought to bed: childbearing in america, 1750-1950 87 (1986). 21 id. at 97, 99. 22 id. at 87, 107. 23 litoff, supra note 6, at 20. 24 robinson, supra note 14. 25 obstetrics is a medical specialization in pregnancy and childbirth. 26 litoff, supra note 6, at 27, 58. 2016 columbia journal of race and law 31 students that physicians were just as responsible as midwives for the high u.s. maternal mortality rates.27 tellingly, a 1911 survey noted "the majority of [medical schools] professors believed that they had never trained a person whom they felt was competent to become a professor of obstetrics.”28 therefore, physicians and medical school professors themselves accepted that they had far less experience or expertise in childbirth than did midwives. however, the lack of proper training and lack of statistics proving that physician births were safer did not stop doctors from opposing midwife-assisted birth. this opposition partially originated from the popular fear of overcrowding in the field of medicine and obstetrics specifically: doctors viewed lay midwives as competitors and feared that they were diminishing their professional status and potential profits in the area of childbirth.29 perhaps because obstetrics had never been a common or popular medical field, precisely because the midwife effectively filled that social need, the worry was particularly high for obstetricians and professionals hoping to attract new doctors and medical students to that field. as litoff puts it, "if obstetrics were to receive its due recognition, the midwife had to be eliminated."30 this fear coincided with the start of the bureau of census' annual collection and publication of death and birth statistics in 1900 and 1915 respectively and several advances in medical hygiene and infection prevention.31 previously, no one knew the raw percentages of infant and maternal births and deaths. once the numbers were revealed to be quite high, anti-midwife physicians had the ammunition they needed to begin their midwifery elimination campaign. the perceived expertise that accompanied physicians, however, did little to decrease infant mortality. 32 when mortality rates decreased in the subsequent years, it was primarily due to simple yet new measures, like routine hand-washing and antiseptic and anti-bacterial regimens, which all could have easily been taught to midwives.33 the midwifery elimination campaign was not just a back-and-forth debate of death statistics, status, and medical hygiene; rather, it was a pointed, racial and gendered attack by white male professionals on the entire class of lay midwives of color. evidence of this trend can be seen in an array of public and private documents dating back to the turn of the century. a 1906 new york midwife study by the public health committee of the association of neighborhood workers, for example, stated that the “the majority of [the] so-called midwives are foreigners of a low grade—ignorant, untrained women.”34 at a 1924 meeting of the southern medical association, a physician stated that they must not attempt to make competent obstetricians out of the great army of ignorant women now practicing midwifery in this country.35 a 1928 virginia midwife study stated that doctors in the south did not want to "deal with the ignorant and superstitious negro [midwife]."36 in the 1920s, the director of the mississippi bureau of child hygiene, a white male, asked, "what could be a more pitiable picture than that of a prospective mother… and [midwife], filthy and ignorant, and not far removed from the jungles of africa, laden with its atmosphere of weird superstition and voodooism?"37 these racist and xenophobic sentiments originally espoused by doctors and medical professionals soon gained traction with popular women's and housekeeping magazines that began publishing articles and 27 robinson, supra note 14 at 249. 28 litoff, supra note 6. at 65. 29 id. at 48; see also, fraser, supra note 5, 59-60 (stating that, "for many physicians, therefore, the midwife problem would be solved only with the rapid abolition of these practitioners and the ascendancy of obstetrical science."). 30 litoff, supra note 6, at 50. 31 id. at 50-51. 32 robinson, supra note 14 at 249. 33 id. at 19-20. 34 id. at 51. 35 fraser, supra note 5, at 59. 36 litoff, supra note 6, at 75. 37 id. at 78. 32 midwives and pregnant women of color vol. 6.1 propaganda warning expecting mothers of these "ignorant" and "dirty" midwives. the magazines also directly and indirectly supported physician-assisted birth by advocating for new methods of pain relief and for hospital hygiene. a harper’s article from 1930, for example, quoted midwives in colloquial southern english, which made the midwives sound ignorant and thus unqualified when placed among the well-formed sentences of the author. a black midwife quoted in the article, aunt elizabeth, said she could get “near about six dollars fo’ ketchin’ one bebby,” and the article’s author quickly concludes, “the first step toward controlling the midwives, good, bad, and indifferent, is to round them all up in class and then briskly winnow them out,” adding that the midwife has no place in twentieth century healthcare.38 a good housekeeping article from 1914 indirectly opposed midwives by praising doctors’ use of a new pain relief drug on laboring women. it advertised that “[the laboring woman] can be kept in a half-waking, half dreaming, but nearly painless state” and, in the case of cesarean section, “can be put to sleep entirely, and wake up to find it all over and see the light shining on her baby’s face.”39 it noted that these methods, available only in hospitals and only when administered by doctors and nurses, make birth far safer than the natural (midwife) route.40 and still others simply came out in support of highly regulating midwifery by pointing to physicians and hygiene professionals who praised new practices as means to saving lives.41 c. explicit restrictions on midwifery practice by 1930, lay midwife-attended births had dropped from fifty percent around the turn of the century to fifteen percent.42 by 1950, eighty-eight percent of births occurred in the hospital, and by 1973, that number grew to over ninety-nine percent, where it has stayed until recent years.43 the main culprit in the precipitous drop in lay midwifery was licensing laws and birthing regulations that quickly replaced the black and immigrant midwives with white nurse-midwives and physicians.44 by 1930, the same year that lay midwifery birth attendance dropped to fifteen percent, thirty-eight of the forty-eight states had registration or licensing laws regulating midwives; the federal government had passed maternity hygiene, birth reporting, and medical regulation laws restricting midwives as well as their patients; and, between 1908 and 1924, every state in the nation had created a bureau of child hygiene or an equivalent thereof.45 additionally, federal immigration restriction laws passed in the early 1920s effectively stopped the influx of immigrant midwives from outside of developed western europe, contributing to fewer immigrant women and, tangentially, fewer midwives.46 this note will demonstrate the legal difficulties that midwives faced and how state and federal governments aided in their decreased numbers by focusing on three of those states, each with welldocumented histories of midwifery regulation: massachusetts, alabama, and california. 1. massachusetts's midwifery ban 38 carolyn conant van blarcom, rat pie: among the black midwives of the south, harper’s magazine, feb. 1930, at 325, 326, 332, available at http://harpers.org/archive/1930/02/rat-pie/. 39 wood hutchinson, when the stork arrives, good housekeeping, july 1914, at 103; see leavitt, supra note 20, at 129 (noting that this once popular pain relief method was often called twilight sleep and did not actually relieve pain so much as it erased the memory of pain. in fact, the endeavor was quite painful. women would often writhe on the bed in so much pain that they would be forcefully strapped down throughout their entire laboring and birthing process for “safety.”) 40 hutchinson, supra note 39. 41 anna steese richardson, safeguarding american mothers, mcclure’s, july 1915, at 35, available at http://babel.hathitrust.org/cgi/pt?id=coo.31924065818472;view=1up;seq=247 (stating that “strict supervision by the body issuing certificates allowing persons to practise medicine and midwifery is needed, in the endeavor to eliminate all persons who are incompetent . . . ”). 42 litoff, supra note 6, at 114. 43 id. 44 litoff, supra note 6, at 122-124. 45 id. at 51, 99. 46 id. at 113, 141. 2016 columbia journal of race and law 33 massachusetts was one of the earliest states to highly regulate midwives when it passed the medical practice act in 1894 and a birth registration act in 1897.47 the medical practice act noted that no person other than a licensed physician would be allowed to practice obstetrics anywhere in the state without facing criminal fines and/or imprisonment.48 though this statute did not explicitly outlaw midwifery, massachusetts considered midwifery to be within the practice of obstetrics. as a result, any midwife who was not also a licensed physician (essentially all midwives at the time) would be committing a criminal offense if she continued practicing. the birth registration act, on the other hand, noted specifically that "physicians and midwives shall on or before the fifth day of each month report to the clerk of each city or town a correct list of all children born therein during the month next preceding, at whose birth they were present,” including the births of stillborn babies.49 the penalty for not doing so was a fine between ten and fifty dollars, a significant amount at a time when midwives rarely charged over ten dollars for their services.50 together, these two statutes created a glaring paradox for midwives: a midwife who did not register the births she attended would be in violation of one statute, but if she registered those births willingly, she would be found in violation of the other and would be subject to criminal charges. the most famous opposition to these statutes arose from the trials of a finnish immigrant named hanna porn; within a four-year period, ten trials were held, and she lost all but one.51 ms. porn received a lay midwifery license from the chicago midwife institute, one of the few midwifery schools in the united states in 1896, and practiced as a lay midwife in gardner, massachusetts.52 she served almost exclusively immigrant women in her surrounding communities, and achieved neonatal mortality rates that were less than half of those achieved by the average physician in her town.53 statistically, babies delivered by physicians in gardner, massachusetts, were more than twice as likely to die at or soon after birth than those babies ms. porn delivered. perhaps due to her popularity and reliability, every case brought against her was brought not by aggrieved former clients, but by medical professionals claiming her illegal competition hurt business.54 it was through one of the cases against ms. porn that the court formally clarified the previously ambiguous bar against midwives present in the 1894 statutes. in the 1907 case, commonwealth v. porn, the court ruled that midwifery was a practice of obstetrics and was thus outlawed by the 1894 statute, making ms. porn guilty of practicing medicine without a proper license.55 although ms. porn argued that prohibition of midwives as a class was unconstitutional disparate treatment, the court chose not to rule on the federal constitutionality of the statute, and, to add insult to injury, fined ms. porn heavily for each case she lost.56 despite her trial losses, court orders prohibiting her from assisting deliveries, and several months served in prison in 1908, ms. porn continued her practice until her death in 1913.57 by 1913, forty percent of all births in massachusetts were attended by midwives.58 these numbers fell quite rapidly as authorities began arresting more practicing midwives as well as physicians who were 47 tovino, supra note 19, at 82. 48 acts and resolves passed by the general court of massachusetts, ch. 458, 530-33 (1894), available at https://archive.org/details/actsresolvespass1894mass. 49 acts and resolves passed by the general court of massachusetts, ch. 444, 420-24 (1897), available at https://archive.org/details/actsresolvespass1897mass (emphasis added). 50 id.; litoff, supra note 6, at 28. 51 eugene r. declercq, the trials of hanna porn: the campaign to abolish midwifery in massachusetts, 84 am. j. pub. health 1022, 1022, 1027 (june 1994). 52 id. at 1022. 53 id. at 1023-24. 54 id.; tovino, supra note 19, at 85. 55 commonwealth v. porn, 82 n.e. 31, 31 (mass. 1907). 56 tovino, supra note 19 at 84-85. 57 id. at 85. 58 declercq, supra note 51 at 1026. 34 midwives and pregnant women of color vol. 6.1 found to have helped midwives or who falsely registered midwife births under their names.59 it was not until 1975 with the passage of legislation permitting licensed nurse-midwives to practice only when under the supervision of a physician that any sort of midwife was again allowed to practice in the state of massachusetts (though lay midwives are still prohibited there). 60 2. alabama regulation beginning in 1918, alabama required all midwives to pass an examination and to register for a license to practice.61 by 1976, however, the state criminally outlawed new lay midwives while only temporarily exempting existing lay midwives and allowed nurse-midwives to practice only in hospitals or hospitalsponsored birth centers. 62 additionally, the state (seemingly arbitrarily) began enforcing an old rule disallowing midwives over the age of sixty-five from practicing.63 consequentially, over 150 senior midwives in alabama were told that they would have to immediately stop practicing despite the fact that younger lay midwives would remain legally allowed to practice under the law’s temporary exemption until their current licenses expired or the county board revoked them.64all of these 150 senior midwives were black women.65 in state v. kimpel, the defendant, toni kimpel, a lay midwife charged with practicing nurse-midwifery without a license, argued that roe v. wade should be interpreted to include a woman's right to privacy in choosing how and by whom her baby is delivered, and, channeling hanna porn, that such a ban was a constitutional equal protection violation.66 the court found both of these arguments without merit.67 the court denied the possibility of race or gender or both being the basis for a suspect class by neglecting to discuss the racial or gender make-up of alabama lay midwives. following precedent in several other states, the court also ruled that the right to privacy did not cover choice in childbirth methods because a fetus is viable at the time of birth and, once a fetus a viable, “the mother’s privacy rights are subjugated to the governmental interest in protecting both her and the child’s safety.”68 3. california regulation in 1976 and again in 1987, in bowland v. municipal court and northup v. superior court respectively, california courts stated that lay midwives were not legally allowed to practice medicine without licenses despite the fact that the california medical practice act of 1976 did not expressly prohibit lay midwifery.69 the restrictions in the state were later relaxed and made more explicit in the licensed midwifery practice act of 1993, after a department of consumer affairs report confirmed that midwifery practice was much safer than previously thought.70 this was essentially an affirmation that many of the highly unnecessary midwifery regulations of the twentieth century lacked merit. however, the new law had the adverse effect of vastly limiting midwifery by requiring midwives to work under the supervision of a licensed physician.71 as a result, 59 id. 60 id. 61 tovino, supra note 19, at 76. 62 id. at 76, 77. 63 id. at 77; see also, margaret charles smith & linda janet holmes, listen to me good: the life story of an alabama midwife 143 (1996). 64 tovino, supra note 19, at 76, 77. 65 id. 66 state v. kimpel, 665 so.2d. 990, 994 (ala. crim. app. 1995). 67 id. 68 id. 69 bowland v. municipal court, 556 p.2d 1081, 1084 (cal. 1976); northup v. superior court, 237 cal. rptr. 255 (cal. dist. ct. app. 1987) (the court specified that those, like defendants, claiming religious exemption, may be permitted to practice without licenses in certain circumstances); cal. bus. & prof. code § 2052, §2053 (west). 70 tovino, supra note 19, at 94. 71 id. at 95 2016 columbia journal of race and law 35 insurance companies either refused to provide malpractice coverage or drastically increased doctors’ insurance premiums when they supervised midwives.72 under economic and legal liability pressure, doctors began refusing supervisory requests and, by 2001, only one midwife in the entire state of california was able to obtain a physician supervisor.73 this legislation, therefore, effectively eliminated legal midwifery practice in the state, despite being based on a study confirming the safety of midwife-assisted births. after several court cases contested the law's detrimental effects, the california legislature amended it so that midwives would no longer have to disclose the name of their physician supervisors, making it more difficult for insurance companies to refuse to provide malpractice coverage. although the amendment partially remedied the problem,74 the fact remains that even in one of the most progressive states, midwifery is still seen, at least by insurance companies and courts, as something in need of strict regulation and direct medical oversight. this is unsurprising given the effectiveness of the original, racist anti-midwifery campaign of the early twentieth century. d. midwifery education and its exclusion of women of color 1. federal actions: the sheppard–towner act explicit midwifery regulation over the past century has indeed been rampant, but it has not been the most destructive means of midwifery extinction. though massachusetts has historically been the strictest state in its midwifery regulation, other state regulations as well as federal statutes, though seemingly less restrictive, have done a great deal to aid in midwifery elimination. the sheppard–towner act of 1921 was a federal statute created primarily to support and fund advances in maternal and infant health and mortality.75 specifically, it provided funding for registered nurses and physicians to travel to more rural areas—where midwives were still a practical necessity—and conduct educational sessions where they could educate midwives on new and life-saving hygiene regulations and methodologies.76 though this endeavor sounds supportive of midwifery in theory, in practice it became yet another vehicle for midwifery restriction. the statute only provided funds to those states that agreed to certain regulatory schemes pertaining to midwifery practice. it established a hierarchical model in which public health nurses, overseen by higherlevel health care professionals and children's bureau administrators, were given the power to choose which midwives they felt were trainable or competent enough to benefit from such classes and which should be restricted or eliminated from midwifery practice.77 this was particularly problematic since the individuals making the decisions were white, and the midwives were predominantly black.78 this meant that, in one of the most racially charged eras in american history, the livelihoods of many women of color were placed directly in the hands of white actors already negatively disposed toward them for both social and competitive reasons. furthermore, these classes and seminars sometimes lasted several days, if not longer, and although federally funded, were not free for midwives, as travel and lodging costs were not included.79 the costs, therefore, acted as a barrier to poorer midwives of color who, without such training, would likely be eliminated from, or regulated out of, the profession. some southern states, such as georgia, alabama, and louisiana, did not take advantage of the federal funds at all, possibly out of a lack of interest in providing any kind of support to the black midwives they wanted to eliminate. 80 in essence, the racially hierarchical 72 id. 73 id. 74 id. at 98. 75 sheppard-towner maternity and infancy act, ch. 135, 42 stat. 224 (1921) (repealed by act of jan. 22, 1927, ch. 53, §2, 4 stat. 1024 (1927)). 76 id. 77 fraser, supra note 5, at 34. 78 id. 79 id. at 37. 80 id. at 31. 36 midwives and pregnant women of color vol. 6.1 structure created by the sheppard-towner act allowed for white professionals to directly and indirectly oversee, regulate, and control black and immigrant midwives under the guise of educational and health advancement. 2. other subtle yet detrimental state regulatory endeavors many states that did not explicitly or heavily outlaw or restrict midwifery nonetheless adopted educational and training requirements that acted as bars to legally practicing midwifery. for example, south carolina created a summer institute for midwifery using state and federal funds in the 1920s.81 by the 1930s, the state had made yearly attendance at the institute a mandatory prerequisite for renewal of one’s midwifery license or permit.82 since the permits themselves had also become mandatory and required a separate fee, many midwives of color, especially those who lacked the means to take time off or travel, simply could not by themselves afford to continue their work legally.83 similarly, florida required that all midwives shadow fifteen physician-attended births to be eligible for a mandatory midwifery license and that each midwife have an active partnership with a physician in order to stay licensed.84 this proved particularly difficult, as many of florida's black midwives lived in towns with few licensed physicians and did not have the means to routinely travel to those physicians. and, as noted above, many physicians did not support the continued practice of midwifery due to raceand gender-motivated fears of over-crowding, competition, and loss of status.85 3. schools of midwifery the first schools and courses for midwifery cost over $100, lasted anywhere from several months to over one year, and often required one to pass a literacy test.86 these requirements posed difficulties for women of color, especially black women who were generally still unor under-educated post-abolition, and for many immigrants who did not speak english as a first language.87 in the 1930s, when nurse-midwifery became a possible solution to the “midwife problem,” only the literate, more affluent few—those capable of paying for and allotting sufficient time to graduating from a school for nurse-midwifery—could hope to legally and effectively join the profession.88 evidenced by the rapid decline in midwife-attended births in the same time period,89 nurse-midwifery did not help save the midwife of color but instead worked as a racial and class barrier to the profession. in fact, as litoff argues, it is partially because of the wildly successful smear campaigns against midwives of color that even white nurse-midwives, both then and now, are looked upon with skepticism and negativity.90 however, the fact remains that nurse-midwives are today legally allowed to attend births and deliver babies in every state, but those midwives are not usually women of color, as they once predominantly were. iii. the medicalization of women of color’s reproduction 81 id. at 36. 82 id. 83 id. at 37. 84 debra anne susie, in the way of our grandmothers: a cultural view of twentieth century midwifery in florida, 34 (2009). 85 id. at 50. 86 litoff, supra note 6, at 35-37. 87 id. 88 id. at 126 89 id. at 114. 90 id. at 129. 2016 columbia journal of race and law 37 it is true that the development and implementation of hygiene and educational regulations and requirements in the early decades of the twentieth century decreased infant and maternal mortality rates.91 this note also agrees that registering midwives and midwife births undoubtedly aided the data collection process for census statistics. this note advocates both for natural, midwife-assisted birth, and for those births to be clean, sterile, and done by experienced midwives who take necessary precautions to ensure the safety of mother and baby. the problem with these requirements is not, therefore, the regulation of hygiene or requirements of having sufficient knowledge per se, but rather their socio-economically and racially disproportionate application and effect on black and immigrant midwives and women. this racially disproportionate application connects midwifery regulation to another race-specific and even more pervasive regulatory scheme: medicalization. although the raced and gendered regulation and virtual elimination of lay midwives has been routinely happening since the turn of the twentieth century, it is not only the midwife of color who has felt the effects of regulation. midwifery regulation is intimately connected to, and has important bearings on another regulatory phenomenon: the medicalization of pregnant women of color. this section will explain what medicalization is and why medicalization and midwifery regulation must be understood together in order to fully understand either and move forward. medicalization can be defined broadly as the identifying or viewing of a condition or behavior as being in need of medical intervention, treatment, or control.92 in the context of a certain raced and gendered group’s condition or behaviors—in this case the reproduction of women of color—medicalization takes on a deeper, more complex meaning. here, medicalization is the direct or indirect systemic treatment and perception of women of color’s reproduction as something degenerate, unruly, and in need of medical intervention and control.93 this perception also bolsters the idea that pregnant or reproductive-age women of color need to be socially controlled through a medical framework.94 at the turn of the twentieth century, and during the formative period of midwifery regulation, the medicalization of women of color’s reproduction was much more directly and obviously racist and sexist.95 as the civil rights era moved the united states into a post-racial, neoliberal mindset, medicalization and midwifery regulation became much more indirect and systemic. the root problem, however, has persisted, and its historical and current stronghold on society will be discussed in the following sections. a. the perceived degeneracy of women of color negative notions associated with women of color’s sexuality and reproduction have persisted throughout history: enslaved women were the objects of white male sexual desire and abusive domination; for having to work while raising children, black women post-slavery were perceived as lesser mothers and women; in the later twentieth century, we’ve seen stereotypes of the lazy “welfare queen” knowingly overproducing children at the expense of the lawful, white tax-payer, as well as the negligent drug-addicted mother who irresponsibly and cruelly reproduces “crack babies.”96 this sentiment is nothing new. what is relatively new is the scholarship and data that show us that these stereotypes have had startling, statistically significant, and systematic effects on pregnant women and mothers of color. 91 id. at 54. 92 peter conrad, medicalization and social control, 18 ann. rev. sociology 209, 210-11 (1992), available at http://www.jstor.org/stable/pdf/2083452.pdf?accepttc=true. 93 dorothy roberts, killing the black body: race, reproduction, and the meaning of liberty, 9 (1997). 94 conrad, supra note 92, at 215-16 (arguing that childbirth is the primary example social control via medicalization as medical surveillance since it is seen as a deviant condition or behavior that can be checked by overbearing medical monitoring in all areas of obstetrics including pre and post natal care.). 95 see part i. 96 roberts, supra note 93 at 9, 18. 38 midwives and pregnant women of color vol. 6.1 in her book, killing the black body: race, reproduction, and the meaning of liberty, dorothy roberts notes that “white childbearing is generally thought to be a beneficial activity…black reproduction, on the other hand is treated as a form of degeneracy.”97 “the denial of black reproductive autonomy,” she adds, “serves the interests of white supremacy.” 98 khiara bridges makes a similar argument noting that poor, pregnant women—who are disproportionately women of color—are perceived as “unruly bodies” and “the consequence [of that perception] is a medicalization of poverty, with the poor being treated as biological dangers within the body politic.” 99 just like midwives of color, pregnant women of color were and are treated as degenerate, dangerous, and in need of control. not only are pregnant women of color seen as things in need of regulation, but also they are seen that way because it subconsciously allows for the perpetuation of race, gender, and class hierarchies and structures. as recent statistics show, this continues today. women of color experience medicalized childbirth significantly differently than white women. in 2010, amnesty international, an international human rights activism organization, published an extensive report detailing the particular disproportionalities and injustices women of color face in the american birthing system.100 titled deadly delivery: the maternal health care crisis in america (hereinafter referred to as the "ai report"), its most shocking statistics include the following: women of color are at least twice as likely to be impoverished than white women;101 black women are four times more likely to die in childbirth than white women;102 while forty-six percent of those deaths are preventable for black women, only thirty-three percent are for white women103; and even though women of color represent thirty-two percent of women in america, they comprised fifty-one percent of all uninsured women in america as of 2010.104 despite these numbers, over ninety-five percent of women give birth in hospitals at a cost of between $8,300 to $18,900 depending on whether one has a vaginal or cesarean section birth and what procedures are performed.105 thus, a disproportionate number of women of color are both dying from childbirth and paying out of pocket for in-hospital birth. statistics like these are but numerical indicators that the historical medicalization of women of color’s reproduction has not ended, but merely, changed forms. these changes, and their structural connections to midwifery regulation, are best understood through their common histories. 1. the history of medicalization 97 id. at 9. 98 id. at 5. 99 khiara m. bridges, reproducing race: an ethnography of pregnancy as a site of racialization, 16 (2011). 100 amnesty international, deadly delivery: the maternal health care crisis in america (2010), available at http://www.amnestyusa.org/sites/default/files/pdfs/deadlydelivery.pdf. 101 id. at 25 102 id. at 1. 103 id. at 20. meaning that white women’s lives are saved in childbirth more often than are black women’s. 104 id. at 4. note that these numbers were calculated prior to the implementation of the affordable care act. in 2010, roughly sixteen percent of u.s. adults were uninsured. this number has decreased to 11.4 percent as of mid-2015. obamacare facts, http://obamacarefacts.com/sign-ups/obamacare-enrollment-numbers/ (last visited mar. 14, 2016). though the affordable care act provides medical insurance, including maternity coverage, to a percentage of those previously uninsured, the act is unclear as to whether and to what extent it requires coverage of midwifery care, free-standing birth centers, or home birth as it has not been in existence long enough for all requirements to be fully understood or implemented and because coverage still varies by state, by insurance provider. nancy metcalf, will obamacare cover midwives and birthing centers, consumer reports still varies (july 3, 2013, 10:08 am), http://www.consumerreports.org/cro/news/2013/07/will-obamacare-cover-midwives-and-birthing-centers/index.htm 105 id. at 36. 2016 columbia journal of race and law 39 the medicalization of pregnant women of color began in earnest during the first decades of the twentieth century–around the same time that the racist endeavor of midwifery regulation began. it began as a similarly racist endeavor—one into eugenics. eugenics, the study and practice of population control through promoting the reproduction of “good stock” while discouraging or prohibiting the reproduction of “bad stock,” originated in england in the 1880s.106 it was not until the turn of the century, however, that eugenics gained traction in the united states. 107 in 1911, charles davenport, a university of chicago biologist, published the popular book heredity in relation to eugenics, which reported pseudo-scientific research findings on the linkages between negative behavioral traits, disease, and race.108 davenport proposed to regulate “bad stock” through selective marriage, immigration, and sterilization policies. 109 american eugenicists and eugenists110 bolstered these arguments in favor of regulating black and certain immigrant populations by claiming that their low iq test scores were indicative of their inherent intellectual and mental inferiority to whites.111 this argument, however, ignored the possibility that, at the time, low iq tests scores among black americans and certain immigrants instead resulted from their systematic denial of access to education. the eugenics movement was so effective that, by 1913, twenty-four states and washington d.c. had banned so-called “genetically defective” marriages;112 by 1935, thirty-three states had laws allowing eugenicsbased forced sterilizations;113 and by 1940, thirty states had codified interracial marriage bans.114 these antimiscegenation laws worked hand in hand with the reporting laws, mentioned in part i, which, by requiring birth attendants (midwives and physicians) to register all birth information, including the race of the child and parents, put midwives in a catch-22.115 furthermore, similar findings on the inferiority of southern and eastern european immigrants (groups to which the majority of immigrant midwives belonged) helped pass the national origins act of 1924 (also mentioned in part i), legislation that heavily regulated immigration from these areas.116 increased control of pregnant and reproductive-age women of color paralleled and directly intersected with midwifery regulation by using seemingly scientifically and socially necessary measures such as eugenics-based anti-miscegenation laws as well as birth reporting laws. the census and mortality statistics that proliferated of the anti-midwife campaign were also important to the eugenics movement. gertrude jacinta fraser notes the foucauldian idea that a great deal of the power of a bureaucratic state is contingent on its ability to “administer rather than take lives.”117 in the context of a racially hierarchical society like our own, this means that the state can use population statistics on births, deaths, life expectancy, race, age, etc., to exert control and implement structurally racist and sexist agendas, such as eugenics, on its citizenry. 106 roberts, supra note 93 at 59-60; see also, francis galton, inquiries into human faculty and its development, 24-25, 307 (macmillan and co., ed. 1883) (in which galton, an english scientist, first used the term “eugenic”). 107 roberts, supra note 93 at 60 108 id. at 62. 109 id.; charles davenport, heredity in relation to eugenics, 219 (1911) (stating that “the population of the united states will, on account of the great influx of blood from south-eastern europe, rapidly become darker in pigmentation, smaller in stature…more given to crimes of larceny, kidnapping, assault, murder, rape and seximmorality…since of the insane in hospitals there are relatively more foreign-born than native it seems probable that, under present conditions, the ratio of insanity in the population will rapidly increase.”). 110 a eugenicist is an advocate of eugenics. a eugenist is one who studies eugenics. 111 roberts, supra note 93 at 63. 112 id. at 65. 113 nicole rousseau, black woman’s burden: commodifying black reproduction, 106 (2009). 114 id. at 71. 115 fraser, supra note 5 at 7. 116 roberts, supra note 93 at 65. 117 fraser, supra note 5, at 51. 40 midwives and pregnant women of color vol. 6.1 in the context of midwifery regulation and medicalization, this was done primarily through the seemingly least invasive regulations: reporting birth statistics. each state’s anti-miscegenation laws were made more easily enforceable by the laws making it a crime for midwives and physicians to misrepresent or misreport information on birth certificates.118 thus, when midwives became required by law to submit birth certificates, which included a report of the baby’s and parents' races, they were put in a terrible position. they could either incriminate their predominately black and immigrant patients or incriminate themselves. if a patient birthed a mixed-race baby, her midwife could either report it truthfully, accusing her patient of criminal miscegenation or she could falsify her report, putting herself at risk of legal sanctions. the consequences were quite severe; in virginia, for example, misrepresentation of race on such a document was a felony.119 this bureaucratic route to the implementation of eugenics laws is exemplified by a correspondence between the virginia registrar of vital statistics, walter plecker, and the eugenicist harry laughlin in the 1930s. in an attempt to bolster support for more thorough census data collection, plecker assured laughlin that such statistics would better allow authorities to monitor interracial procreation and ancestry. “i would feel somewhat easier,” he said, “about the [effectiveness of anti-miscegenation laws] if i thought that these near-whites would not produce children with negroid characteristics."120 whether we view it as a midwifery regulation used to promote a eugenics agenda or as a eugenics agenda that furthered the anti-midwifery campaign, the effects were the same: increased control of both midwives of color and of their patients of color. therefore, a system of data collection that, on the one hand, was benefiting society by monitoring mortality and census data, was, on the other hand, also exerting a great deal of indirectly racist reproductive control over its black and immigrant populations. 2. sterilization, birth control, and the denial of autonomy when the great depression hit, the fear that poor children and families of color would exhaust public funds sparked a severe and explicitly race-targeted attempt at reproductive control in the form of forced sterilization and disproportionate distribution of birth control to women of color.121 margaret sanger’s birth control crusade had begun to gain traction at just the time when racist whites and eugenicists were advocating race-specific population control. in the late 1930s, sanger and eugenists began to work hand in hand on the negro project, a government funded endeavor to regulate black reproduction.122 the program, on its face, proposed to educate and provide communities of color with access to family planning information and health care options, but in practice, it allowed for the forced sterilization of tens of thousands of people of color.123 sanger, the women’s reproductive rights pioneer, headed the negro project from 1939-1942 and sympathized with the eugenics agenda.124 “birth control,” she once said, “has been accepted by the most clear thinking and far seeing of the eugenists themselves as the most constructive and necessary of the means to racial health.”125 at that time, many, like sanger, perceived women of color’s reproduction as reckless and detrimental to society at large, while, concurrently, state officials, eugenists, and eugenicists were urging white women and families to have more children to offset the perceived overproduction of "bad stock."126 it was not, therefore, that the population at large needed controlling during the troubled times following the great depression; it was that the white population needed to be preserved during those troubled times at the expense of the reproductive freedom of their black neighbors. in the end, just like with midwifery regulation, the purportedly good intentions of this program resulted in the sinister control of women of color. 118 id. at 74. 119 id. 120 roberts, supra note 93, at 72. 121 rousseau, supra note 113 at 94, 97, 110. 122 id. at 110-11. 123 id. 124 id. 125 roberts, supra note 93 at 74-75. 126 id. at 73-74. 2016 columbia journal of race and law 41 the program began with race-reporting regulations similar to those placed on midwives at the time. sanger’s birth control and family planning clinics, founded as the american birth control league in 1921— which later became the planned parenthood foundation—began recording the races of their patients to compile statistics on the fertility rates of different races.127 presumably, this was in order to identify and more effectively control the biggest threats to the health of the white race; but in time, the program grew to be much more invasive. between 1933 and the beginning of the 1960s, the eugenics commission of north carolina sterilized 7,686 people, 5,000 of whom were black.128 in 1955, every single person sterilized in one south carolina hospital was a black woman.129 in some cases of state-sponsored sterilization in north carolina, since victims were considered mentally inferior or incapable, no consent was required before operating on them.130 between 1929 and 1941, over 2,000 eugenics sterilizations were performed per year; the u.s. government only stopped openly supporting eugenics once it became associated with its enemies, the nazis, and their holocaust.131 by the time the forced sterilization laws were completely abolished in the 1970s, doctors had performed over 70,000 non-consensual sterilizations on the “unfit,” most of which were immigrants and people of color.132 although the racist eugenics laws were repealed, disproportionately administered sterilizations on women of color have not stopped.133 just as midwifery regulation did not and has not stopped simply because the overtly racist anti-midwife propaganda of the early twentieth century ended, women of color were and are not free from this kind of reproductive control. since the 1970s, sterilization has been offered and performed as a form of birth control disproportionately more often to women of color than to white women.134 in the 1970s, several hospitals were exposed as having routinely performed sterilizations on black women without proper consent. one such boston hospital was routinely having medical students perform hysterectomies (a complete and irreversible removal of the ovaries and uterus) and tubal ligations (a possibly reversible severing of the fallopian tubes) on black women for “training purposes.” 135 the same was reported in new york where the focus was on poor black and puerto rican women.136 patients were being pressured or forced into signing their consent forms, and in most cases were not properly informed of the risks and alternatives; and the procedures, usually medically unnecessary, were often not being recorded.137 in many cases across the country, the procedures were instead recorded as appendectomies (the removal of the appendix); in southern states, for example, forced or coerced sterilizations were commonly referred to as "mississippi appendectomies.” 138 in puerto rico in the 1960s, sterilization programs succeeded in sterilizing one third of its childbearing-age women, and similar endeavors on native american reservations sterilized one quarter of native american women in the 1970s.139 a 1970 national fertility study reported that twenty percent of all married black women, and almost twenty percent of married hispanic women, had been sterilized; of those women sterilized through federally funded health programs, forty-three percent were black.140 roberts notes 127 id. at 75; rousseau, supra note 113, at 107. 128 rousseau, supra note 113, at 110. 129 roberts, supra note 93, at 89-90. 130 id. at 90. 131 id. at 89; see also, phillip reilly, the surgical solution: a history of involuntary sterilizations in the united states, 2, 101, 111-27 (1991) (discussing critiques of sterilization and eugenics during the first half of the twentieth century). 132 rousseau, supra note 113, at 132. 133 id. at 132-33. 134 id. at 145-47 135 roberts, supra note 93, at 91. 136 id. 137 id. at 90-91. 138 id. at 90 139 id. at 94-95. 140 angela davis, women, race, & class, 219 (1981). 42 midwives and pregnant women of color vol. 6.1 that publicly funded hospitals and doctors were in fact encouraged to irreversibly sterilize their patients.141 in the 1970s, hysterectomies cost $800 while tubal ligations cost only $250. since medicaid reimbursed hospitals and doctors for these procedures, she explains, it was in their financial interest to perform the more dangerous and irreversible procedure on their patients, most of whom were poor women of color.142 b. medicalization today just as feminist agency during childbirth was diminished when hospital and physician-assisted births replaced midwife-assisted and home births, so too has the agency and empowerment of pregnant women been undermined by medicalization and continued disproportionate sterilization. sterilization is still more common among women of color than white women, and women of color still receive more sterilization counseling than white women.143 as of 2002, over half of the women who are sterilized each year are poor black women under twenty-four years old.144 the ai report notes that twenty-five percent of all women (of any race) who received cesarean sections felt pressured into the procedure while eleven percent felt pressured into taking contraction-inducing drugs such as pitocin (which increase the likelihood of an eventual cesarean section).145although some of the ai report statistics are not broken-down by race, they state that white women were four times more likely than black women to be given the choice to refuse a suggested episiotomy (cutting the vaginal opening in order to allow more room for baby’s delivery). 146 this indicates that autonomy is denied to women unequally across races. the ai report statistics reinforce the arguments and theories espoused by the likes of roberts and bridges. for example, the ai report found that, nationwide, bureaucratic procedures within the medicaid system cause significant delays in care for pregnant women—a disproportionate number of whom are women of color.147 this is similar to and reaffirms bridges’ finding that all pregnant women at her hospital of study (one primarily caring for the poor women of color in new york city), were required to see “abortion counselors, patient advocates, geneticists, hiv counselors, nurse/health educators, nutritionists, social workers, and financial officers” at the start of their admission for basic pre-natal care.148 not only are these sorts of bureaucratic policies riddled with negative assumptions about pregnant women of color without insurance or on medicaid, they also force pregnant women of color to jump excessive hurdles before being provided with necessary care. by assuming women of color are more likely to have unwanted pregnancies, sexually transmitted infections, and little to no knowledge of sexual health or how to feed themselves and their families properly, it implies that such women are categorically unfit to be mothers. dorothy roberts writes about the specific yet commonly unnoticed harm that positively perceived systems and institutions can do when they become punitive and primarily target marginalized groups. she notes that the american foster care system, one such positively perceived institution, in fact punishes lowincome, black mothers, especially those currently or previously incarcerated.149 these women, being most likely to require welfare aid and more likely to struggle with domestic abuse and hunger, are also most likely to have their children taken away from them if they reach out for government help.150 the system also makes it disproportionately difficult for those women to regain custody of their children.151 “the analysis of the 141 roberts, supra note 93, at 90. 142 id. 143 rousseau, supra note 113 at 144-45. 144 id. at 145. 145 amnesty international, supra, note 100, at 79. 146 id. 147 id. at 42. 148 bridges, supra note 99, at 41. 149 dorothy roberts, prison, foster care, and the systemic punishment of black mothers. 59 ucla l. rev. 1474, 1484-86 (2012). 150 id. 151 id. at 1496-99. 2016 columbia journal of race and law 43 roles black mothers play in both the prison and foster care systems,” roberts states, “reveals that these systems intersect with each other jointly to perpetuate unjust hierarchies of race, class, and gender...to discipline and control poor and low-income black women by keeping them under intense state supervision . . .”152 she also specifically states that pregnant women in prison—by a vast margin, women of color—are rarely given adequate prenatal care, and are often shackled to beds by their hands, feet, and stomachs during labor and delivery, only to have their children taken away from them immediately after birth.153 these practices mirror the direct control of women of color's bodies through medicalization and indirect control of women of color's bodies through midwifery regulation. both regulate women of color’s reproduction through its primary actors––mothers, midwives, and babies––as well as through a regulatory system that is normalized by its appearance as a societal good. all of these systems specifically control childbirth and motherhood because, as the eugenists argued, perpetuation of racial hierarchies is most effective and efficient when targeted at the reproduction of society. the gathering of birth and poverty statistics coupled with racial stereotypes, were not only effectively used to bolster support for the regulation of midwives, they were also used to sanction eugenics projects, forced sterilization of women of color, and over-medicalization of women of color. these attempts to control populations of color, roberts argues, “serve primarily an ideological function . . . the chief danger of these policies is the legitimation of an oppressive social structure . . . by identifying procreation as the cause of black people’s condition, they divert attention from the political, social, and economic forces that maintain america's racial order.”154 the issue here is not just that structural racism, patriarchy, and classism are apparent in midwifery regulation and medicalization; it is also that these structural inequalities are perpetuated under a guise of safety and progress. it is this guise that makes women and midwives of color specifically prone to state and social control. this point will perhaps become even more apparent in the next and final section. iv. the new home birth movement and midwives today one might think, at this point, that the american birthing system as it was pre-regulation and hospital birth is unlikely to make a comeback, but this would be wrong. home and midwife-assisted births, as previously stated, were steadily below one percent of american births since the 1970s and, in fact, between 1990 and 2004, home births had a small but steady decline from .67 percent to .56 percent of reported births.155 however, since 2004, the united states has seen a rather dramatic incline in home births, increasing by twenty-nine percent between then and 2009.156 since midwives attend home births (both nurse and lay midwives), it seems midwives have not been lost to history after all. however, this is only part of the story. this newest iteration of the natural and non-hospital birth movement is also a story only fully understood through an intersectional lens. a. white home birth movement as the npr article in this note’s introduction stated—and no doubt this fact has been influenced in part by the popularity of television personality ricki lake's 2008 documentary, the business of being born—it is white women who have been primarily responsible for the increased popularity of home and non-hospital births.157 in 2010, the percentage of white women delivering outside of hospitals was 1.75 percent while 152 id. at 1491. 153 id. at 1494. 154 roberts, supra note 93 at 102. 155 marian f. macdorman et al., national center for health statistics, center for disease control and prevention, home births in the united states, 1990-2009, figure 1 (jan. 2012), available at, http://www.cdc.gov/nchs/data/databriefs/db84.pdf. 156 id. 157 the business of being born (directed by abby epstein, 2008). the film tells of the same startling cesarean and induction increases and midwife decreases as this paper though from a largely colorblind perspective, delving only 44 midwives and pregnant women of color vol. 6.1 black and hispanic women were out of hospital at .48 and .41 percent respectively. this means that white women were about four times more likely to birth at home or in a freestanding birth center158 unassisted by physicians.159 the white female rate of non-hospital births increased from 1.09 percent to 1.75 percent just between 2009 and 2010; it’s sobering to note that this difference, at .66 percentage points, is itself well over the entire percentage of black or hispanic women birthing at home in 2010.160 overall, although home-birth rates among women of color have actually decreased since the 1990s (though they are now on a small incline), the home birth rates of white women increased by thirty-six percent between 2004 and 2009 and by a staggering sixty-two percent just between 2009 and 2010.161 although these numbers among white women are small now, they show no signs of declining; in fact, they show every indication of continuing to rapidly increase. thus, white women are and probably will continue to be the primary movers of birth from the hospital back into the home and back into the hands of midwives. but it is not just the laboring women in this new natural birth movement who are white; midwives in the present movement are also white. in 2003, less than four percent of certified midwives (lay midwives with licenses) and nurse-midwives identified as black or african american while less than two percent identified as hispanic (not to mention that less than one percent were male).162 in contrast, as of 2006, the percentage of women of color entering the general nursing field is higher, at over eleven percent for black women and five percent for hispanic women.163 this leads to the assumption that though, to some degree (although still quite disproportionate to white women), women of color are able to cross the financial and licensing barriers into the nursing field, they are either choosing not to, or otherwise encountering further barriers to becoming midwives. what other barriers exist today to prevent home births and the re-emergence of midwives of color? the ai report notes that though states do not legally hinder nurse-midwives from attending births, twentyfour states and washington, d.c. have legal barriers preventing certified lay midwives (cms or cpms) from doing so.164 this is not surprising considering the white female beginnings of nurse-midwifery and the racist and sexist campaign against lay midwifery. furthermore, twenty-seven states do not require private insurance companies to pay for nurse-midwife or midwife-assisted births and most other states only reimburse midwifeassisted births if they occur in hospitals. 165 a wisconsin woman articulated this problem saying, “my daughter chose to have a midwife deliver her baby at home for a cost of under $2,500. in the hospital system it would have cost us $12,000, but because it was at home, insurance wouldn’t pay for it.”166 although the full preand post-natal services of a midwife cost thousands of dollars less than a hospital birth, laboring women on medicaid or who are uninsured are still unlikely to be provided the option of a midwife or home birth as they will either be barred by insurance policies or by inability to pay out-of-pocket fees. since private insurance policies are also not required to reimburse the costs of non-hospital births, the cost barriers to the minimally into the racial history of the anti-midwife campaign and not at all into the racial differences in access to midwives and in reproductive autonomy; martin, supra note 4. 158 freestanding birth centers are midwife-staffed and home-like facilities unaffiliated with any hospital. they are quite rare in the united states. however, some hospitals have hospital-run birth centers which generally staff nurse-midwives and obstetricians but which still generally follow hospital procedures on labor and delivery. more business of being born: explore your options (directed by abby epstein, 2011). for the purposes of this note, home birth will refer to births both at home and in freestanding birth centers. 159 martin, supra note 4. 160id. at 2. 161 martin, supra note 4; macdorman, supra note 155. 162 schuiling, supra note 4. 163 anita ellery-brown et al., african american nurse-midwives: continuing the legacy, minoritynurse.com, march 30, 2013, available at http://minoritynurse.com/?s=african+american+nurse+midwives+continuing+legacy. 164 amnesty international, supra note 100 at 81. 165 id. state medicaid programs now have the option to cover births in freestanding birth centers if such coverage aligns with state law. patient protection and affordable care act, 42 u.s.c. §18001, 124 stat. 119, 292 (2010). 166 id. at 60. 2016 columbia journal of race and law 45 otherwise least costly option might be more broadly prohibitive.167 therefore, if one chooses to have a home birth, she usually does so entirely at her own financial expense, regardless of whether or not she has insurance. this means that only affluent, and often white, women will have access to the non-hospital route. it is no coincidence that midwifery and home birth were once so racially diverse but have reemerged racially stratified. the new home and natural birth movement is white-centered because we have forced out midwives of color and forced women of color in to a more highly regulated birthing system than white women. by doing so, we have curbed their reproductive autonomy more greatly than white women’s. and by overregulating and stigmatizing lay midwifery in the past 100 years, we have incentivized the profession for the more affluent, often white, women who can afford to certify as nurse-midwives. the whiteness of these new trends is thus a symptom of the systematic race-based regulation of midwives and women of color. midwives of color once tended to the natural, non-invasive births of women of all races and nationalities, providing women the support and care necessary to labor and deliver on their own terms. but now, the physician-assisted, hospital birth reigns supreme despite its current and historical over-regulation of bodies of color and revocation of agency along race and class lines. if we ignore either race or class, but especially if we ignore both, and instead look at the story of the midwife and of medicalization through only the single-axis lens of gender (as did npr and, to a large extent, the business of being born), none of the patterns and structures that have so drastically altered american birthing since the turn of the twentieth century will be apparent, or even cognizable. similarly, if we look color-blindly and only at the present make-up of hospital and home births without looking at the history, we do not easily see the racial connections and origins of the current disproportionalities, rather, we see the new surge in home birth as an abrupt and fleeting trend among the modern feminist middle and upper class. this is, primarily, a story of racism and classism against midwives and pregnant women of color. no other framework but an intersectional, black-feminist one will allow us to analyze the interconnectedness of these problems. v. conclusion when we fail to view the midwife and twentieth century birth and medical trends through an intersectional lens, we fail to see the marginalization, professional elimination, and disproportionality of the birthing statistics that negatively affect and oppress women of color. therefore, what we need in order to confront this problem is to center low-income women of color’s experiences and treatment (like the ai report did) throughout the past 100 years in our discussions and analyses. while the white women’s home and natural birth movement is marginally helpful in bringing back midwives and home births, its efforts clearly are not sufficiently advancing midwives of color and its efforts will certainly not help to stop the denials of liberty, agency, and respect to pregnant woman of color that are so deeply set into our current institutions. the racist regulatory schemes that eliminated the midwife are perpetuated by and connected to the regulatory schemes historically used and still being used to regulate pregnant women of color. those structures and schemes still need to be tackled today. insurance and hospital structures, structures that dictate licensing barriers and family planning distribution, and hygiene and safety discourses—all of which have and currently do perpetuate class, race, and gender biases against midwifery, home birth, and reproductive agency among low-income, pregnant women of color—are the structures in need of an intersectional, black feminist-centered shift in analysis. the time has never been riper for an analytic change in these discourses. feminism, though it should be a reality as opposed to a trend, has been gaining media coverage over the past several years with help from celebrity advocates such as emma watson and beyoncé. the recent and ongoing incidents and discussions of police brutality have brought national and international attention to issues of racial injustice. and although they are centered around white women, projects like the business of being born, and shows like bbc’s call the 167 id. at 81. 46 midwives and pregnant women of color vol. 6.1 midwife—which is gaining an american viewership through its current availability on netflix—are bringing midwifery back to our attention. all of this means that the american public, as well as american decisionmaking bodies, are perhaps more suited to tackle and discuss these issue than ever before, and we must take advantage of that. it is a good first step simply to see the connections between the regulation of midwives, the oppression and control of pregnant women of color, and the lack of racial diversity in current home birth trends. but it is only the first step. we must also inform and help others understand that the more pregnant women of color were regulated, the more midwives were regulated and vice-versa. and when doctors and hospital birth replaced midwives, women of color, too, were moved into a highly regulated and bureaucratic hospital system that focused and still focuses much of its attention on limiting the autonomy of pregnant women of color. therefore, we cannot fully understand the current disproportionalities in the natural birth movement and midwifery without first understanding their connection to the origins and history of medicalization and midwifery. we must, i believe, expose and stop these abuses and deconstruct the power structures that normalize and keep birth in the hands of hospitals and predominantly white, male physicians and bureaucrats. to do that, we will need to see this story as a women of color’s story, one of oppression and suppression of the feminism and freedom that once ruled birth. columbia journal of race and law vol. 11 july 2021 no. 3 article the white supremacy hydra: how the family first prevention services act reifies pathology, control, and punishment in the family regulation system miriam mack* fundamentally, the so-called “child welfare system”—more appropriately named, the family regulation system—is a policing system rooted in white supremacist ideologies and techniques. from its earliest iteration, the family regulation system has functioned to pathologize, control, and punish the families entrapped in its web, most especially black families. nevertheless, among many, the myth persists that the family regulation system is one of child protection and family support. this is especially true when discussing the family first prevention services act of 2018, which—for the first time since the establishment of the modern family regulation system—opens up federal funding streams previously reserved for the removal of children to the foster system to provide prevention services for families in which children have not yet been removed to the foster system. while the act is a course change in federal family regulation policy, this article traces how it leaves * miriam mack is policy counsel to the family defense practice at the bronx defenders. this article was prepared in my personal capacity. the opinions expressed are my own and do not reflect the view of the bronx defenders. this article would not be possible without, and humbly builds upon the decades of work, analysis, reflection, and thinking of folks who have been working to resist the family regulation system. i extend my deepest gratitude to those comrades and colleagues who have supported, guided, and shaped my thinking and given incredibly invaluable feedback on this article including erin miles cloud, megan eardley, michele hall, emma s. ketteringham, joyce mcmillan, clara presler, lisa sangoi, and so many more. 768 colum. j. race & l. [vol. 11:767 undisturbed the pathology, control, and punishment central to the policies that preceded it. 2021] the white supremacy hydra 769 i. introduction ............................................................................. 770 ii. pathology, control, and punishment in federal family regulation system policy ..................................... 771 a. early federal family regulation system policy ...... 771 b. modern federal family regulation system policy... 774 1. 1960s & 1970s amendments to the social security act ........................................................... 774 2. the adoption assistance and child welfare act of 1980 ............................................................. 775 3. the adoption and safe families act of 1997 ...... 776 c. regulation through family separation .................... 778 iii. the family first prevention services act of 2018: a shift in federal family regulation system policy ..... 783 a. impetus for the family first act ............................... 785 b. prevention as the solution .......................................... 788 iv. the family first act leaves firmly in place the family regulation system’s investment in pathologizing, controlling, and punishing black mothers .................................................................... 791 a. the family first act: a continued myopic focus on perceived “parental defects” ................................. 791 b. the family first act: a continuation of the family regulation system tradition of expansive control ....................................................... 797 c. the family first act exists in an ecosystem of punishment ........................................... 804 v. recommendations .................................................................. 805 vi. conclusion ............................................................................. 809 770 colum. j. race & l. [vol. 11:767 i. introduction some frame the family regulation system not as a policing system, but rather as a gentler, non-punitive government intervention aimed at protecting children and supporting families. this framing is especially true when discussing the family first prevention services act of 2018. this act has been lauded by some as a reordering of the family regulation system through a more supportive, family-centered approach. though undoubtedly the family first prevention services act is a shift in federal family regulation system policy, the act is a recalibration of the old and familiar family regulation system, not a transformation. the act keeps intact, and indeed reifies, the fundamental pillars of the family regulation system: pathology, control, and punishment, all of which uphold and further white supremacy. it leaves unchallenged the underlying structure of the family regulation system which works to pathologize black parents, mostly mothers, and which allows black communities and homes to be controlled and occupied by family regulation system workers. despite tinkering at the system’s edges, the family first act reinforces the notion that black children remaining in their homes with their parents necessitates the watchful eye of family regulation system agents. this article traces how the family first act leaves firmly in place the white supremacist roots of the family regulation system. part i of this article explains how federal family regulation system policy is rooted in white supremacist ideologies and techniques, namely pathology, control, and punishment of black mothers. part ii of this article analyzes how the family first act changes the family regulation system’s mechanisms of action from removal to the foster system to in-home services, but in no way challenges the fundamental pillars upon which the family regulation system rests. and drawing from the prison abolition movement, part iii of this article humbly suggests some organizing questions and principles that can help guide us in dismantling the family regulation system and investing in selfdetermination, autonomy, care, and support. 2021] the white supremacy hydra 771 ii. pathology, control, and punishment in federal family regulation system policy like the criminal legal system, the family regulation system is largely state-run. as such, no two states’ family regulation systems are identical. that being said, state family regulation systems have certain unifying characteristics driven in part by federal policy, which this article refers to as “federal family regulation system policy.” to understand federal family regulation system policy, we must look to where the federal government allocates federal monies to support state family regulation system services, programs, and costs. virtually all federal spending in support of state family regulation systems derives from the social security act.1 federal dollars allocated to state family regulation system services, programs, and costs come from a variety of different funding streams—including titles iv-b and iv-e of the social security act, temporary assistance for needy families (tanf), social services block grant, medicaid, and other funds.2 a. early federal family regulation system policy in its early iterations, federal family regulation system policy was bound up with federal anti-poverty programs imbedded in social security act of 1935.3 building from states’ “mother’s pension” programs, title iv-b of the social security act of 1935 established the aid to dependent children program (acd), a means-tested entitlement program provided to certain low-income mothers who lacked financial support of the fathers of their children.4 as noted by legal scholar dorothy roberts, an authority on the family regulation system, a guiding principle of federal family regulation system policy during the progressive era was that government funded financial support for single mothers living in poverty would help minimize the need for 1 elizabeth jordan & dana dean connelly, an introduction to child welfare funding, and how states use it, child trends 2 2016), https://www.childtrends.org/wp-content/uploads/2016/01/201601introstatechildwelfarefunding.pdf. 2 id. at 2–3. 3 dorothy roberts, shattered bonds: the color of child welfare 173–200 (2002) [hereinafter roberts, shatters bonds]. 4 jennifer a. reich, fixing families: parents, power, and the child welfare system 35 (2005). 772 colum. j. race & l. [vol. 11:767 children to be removed from their families and placed in orphanages and asylums.5 a second guiding principle, in tension with the first, was the notion that providing financial aid to those in need risked encouraging “dependency, moral degeneracy, and family breakdown.”6 therefore—despite providing federal family assistance for the first time in american history—federal antipoverty programs and child welfare policy were bound up with the moral construction of poverty: “demarcating the ‘undeserving poor’ and perpetuating the myth of racial inferiority.”7 the acd program functioned not just as an anti-poverty program focused on child welfare, but also as a means of social control of the “deserving” poor, a category that was largely restricted to poor, widowed, white women.8 in distributing acd aid, states were given wide discretion to define the criteria used to determine aid eligibility requirements.9 with this discretion, jurisdictions imposed “suitable home” requirements to ensure that the women to whom funds were provided were “conform[ing] 5 roberts, shattered bonds, supra note 3, at 175. 6 id. early federal family regulation system policy was influenced by nineteenth and early twentieth century middle-class reformers, who were deeply concerned with “the behavior of the ‘dangerous classes’ (i.e. urban poor immigrant groups). among these reformers, the urban poor immigrant groups were thought to be criminal, vicious, indolent, and intemperate,” and thus beyond redemption. tina lee, catching a case: inequality and fear in new york city’s child welfare system 19 (2016). many reformers believed that children of the urban poor immigrant groups needed to be saved from their parents and formed private organizations to carry out these forced separations. some states also passed laws allowing children to be removed from their parents to asylums and orphanages. see id. at 20–22. private organization, such as children’s aid society, a foster agency that remains in existence today, was among these middle-class private institutions that coercively removed children from poor parents and sent them to work for white protestant to families in the western united states on “orphan trains.” see id. 7 see movement for family power et al., whatever they do, i’m her comfort, i’m her protector: how the foster system has become ground zero for the u.s drug war 24 (2020), https://static1.squarespace.com/static/5be5ed0fd274cb7c8a5d0cba/t /5eead939ca509d4e36a89277 [https://perma.cc/8btj-48em]. for a comprehensive analysis of the moral construction of poverty, see khiara bridges, the poverty of privacy rights 37–64 (2017). 8 see roberts, shattered bonds, supra note 3, at 175. see also movement for family power et al., supra note 7, at 24. 9 susan w. blank & barbara b. blum, a brief history of work expectations for welfare mothers, future child. 28, 29–30, (1997) [https://perma.cc/4ehg-qthy]. 2021] the white supremacy hydra 773 to ‘american’ family standards.”10 examples of “unsuitable homes” included homes where a child was born to an unwed mother, where a caretaker engaged in “promiscuous conduct,” and where a child was being neglected, among other things.11 with this discretion, many jurisdictions used “suitable home” requirements to preclude black women from accessing the aid almost entirely.12 also excluded from acd aid were indigenous communities, who had long since been subjected to a federal policy of forced family separation and forced assimilation to white society and culture under the indian civilization act.13 the social security act of 1935 authorized a small allotment of funds to states annually to support “child welfare services.”14 the purpose of the allotment was to enable: [t]he united states, through the children’s bureau, to cooperate with state public welfare agencies in establishing, extending, and strengthening, especially in predominantly rural areas, public [child] welfare services . . . for the protection and care of homeless, dependent, and neglected children, and children in danger of becoming delinquent.15 in total, the social security act authorized $1.5 million annually “for use by cooperating state public-welfare agencies on the basis 10 roberts, shattered bonds, supra note 3, at 175. see also blank & blum, supra note 9 at 29–30. 11 see laura meyer & ife floyd, ctr. on budget & pol’y priorities, cash assistance should reach millions more families to lessen hardship: families’ access limited by policies rooted in racism 8–9 (2020), https://www.cbpp.org/sites/default/files/atoms/files/6-16-15tanf.pdf [https://perma.cc/257l-xtqr]; the “suitable-home” requirement, 35 soc. science rev. 203, 203–204 (1961). 12 see meyer & floyd, supra note 11, at 8–9. 13 see heron greenesmith, best interests: how child welfare services as a tool of white supremacy, pol. rsch. assocs. (nov. 26, 2019), https://www.politicalresearch.org/2019/11/26/best-interests-how-child-welfareserves-tool-white-supremacy [https://perma.cc/n4pz-fw8v]. 14 reich, supra note 4, at 35. 15 h. rep., comm. on ways & means, green book, child welfare legislative history, (2012) [hereinafter h. rep. green book leg. hist.], https://greenbook-waysandmeans.house.gov/2012-green-book/chapter-11-childwelfare/legislative-history [https://perma.cc/d944-ljzq]. 774 colum. j. race & l. [vol. 11:767 of plans developed jointly by the state agency and the children’s bureau.”16 b. modern federal family regulation policy while the early iterations of federal family regulation policy largely excluded black families, successes of the sustained resistance of the civil rights movement resulted in greater access to public assistance for black families.17 with these wins came a parallel shift toward the federal government increasingly directing federal dollars to support punitive state interventions, namely the removal to the foster system. as more black families became eligible for federal aid programs, the moral construction of poverty became an even larger part of the narrative of the family regulation system.18 in turn, the commitment to government funded anti-poverty measures, such as acd aid and the maintenance of public goods, diminished.19 so too did federal family regulation policy recalibrate itself by ushering in a string of amendments to the social security act and new laws that allocated more federal dollars toward growing states’ family regulation system infrastructures and the costs and programs associated with maintaining children placed in the foster system. 1. 1960s & 1970s amendments to the social security act the 1960 amendments to the social security act ushered in the modern-day foster system and increased family regulation system funding to $25 million.20 a year later, the 1961 amendments provided that states could seek, on a temporary basis, federal reimbursement for part of the costs associated with placing and maintaining children in the foster system.21 thereafter, in 1974 the child abuse prevention treatment act of 1974 (capta) was enacted to provide financial assistance to states to establish a system for receiving and responding to allegations of child maltreatment, to support states in the 16 social security act, 42 u.s.c. § 521(a) (1935). 17 see greenesmith, supra note 13. see also movement for family power et al., supra note 7, at 24. 18 movement for family power et al., supra note 7, at 27–28. 19 id. 20 id. 21 h. rep. green book leg. hist., supra note 15. 2021] the white supremacy hydra 775 “prevention[,] assessment, investigation, prosecution, and treatment” of child maltreatment.22 2. the adoption assistance and child welfare act of 1980 then, in 1980, the adoption assistance and child welfare act (aacwa) was passed into law and established a federal adoption assistance program as well as “strengthen[ed] the program of foster care assistance for needy and dependent children.”23 aacwa reflects yet another important recalibration of federal family regulation policy to ensure its continued existence. with the number of children being separated from their families and removed to the foster system increasing, beginning in the 1970s,24 congress faced pressure to recognize and address the ways that federal family regulation policy incentivized family separation and the foster system.25 to help disrupt the expansion of the foster system nationwide, aacwa introduced a “reasonable efforts” requirement and mandated additional case 22 child.’ bureau, about capta: a legislative history (2019), https://www.childwelfare.gov/pubpdfs/about.pdf [https://perma.cc/tyv2ta5n]. since 1974, capta has been amended numerous times in the 1990s and the 2000s, building out the federal governments expansive financial support for state family regulation systems investigation and prosecution infrastructures and foster systems. see child.’ bureau, major federal legislation concerned with child protection, child welfare and adoption (2019) [hereinafter child.’ bureau, major legislation], https:/ /www.childwelfare.gov/pubpdfs/majorfedlegis.pdf [https://perma.cc/m9fffhtq]. 23 child.’ bureau, major legislation, supra note 22. 24 this increase in children being removed to the foster system was due in part to dr. c. harry kempe’s theorization of “the battered-child syndrome” in 1962. in response the introduction of this “syndrome,” between 1963 and 1967, all 50 states had passed laws establishing the creation of child abuse “hotlines” and other systems that allowed people to report suspected child maltreatment. see lee, supra note 6 at 28. moreover, roberts points out that the medicalization of child maltreatment served another purpose. failing to gain bipartisan support for family regulation legislation focused on poverty-related harms to children, instead, congress promoted “a medical model of child abuse—’a distinguishable pathological agent attacking the individual or family that could be treated in a prescribed manner and would disappear.’” see roberts, shattered bonds, supra note 3, at 14. 25 see roberts, shattered bonds, supra note 3, at 105. 776 colum. j. race & l. [vol. 11:767 planning requirements.26 yet the aacwa recalibration, like the recalibrations that preceded it, was not a repudiation of family separation or the foster system. rather, it firmly embraced the foster system by establishing “[f]unding for foster care and adoption assistance,” as a “permanent entitlement for assistance to eligible children” under the newly established title iv-e of the social security act.27 and if the direction of federal dollars reflects federal policy priorities, then aacwa made clear the centrality of the foster system as a means to address issues faced by struggling families. for example, between 1981 and 1990, federal spending on family regulation system services went from $0.5 billion to $1.6 billion.28 the vast majority of these dollars were allocated to support the programs and costs associated with children placed in the foster system rather than on family preservation.29 3. the adoption and safe families act of 1997 the next significant change to federal family regulation funding policy came with the adoption and safe families act (asfa) in 1997. enacted on the heels of the so-called “crack epidemic” of the 1980s and 1990s, and faced with massive increase in the number of children removed from their families to state foster systems—40% of which were black children— federal family regulation policy doubled down on its reliance on family separation as the policy solution.30 under asfa, federal 26 see id. the aacwa made the receipt of federal funds contingent on state family regulation system agencies making “reasonable efforts” to prevent a child’s placement in the foster system, except under circumstances where doing so would not be in the child’s best interest. see h. rep. green book leg. hist., supra note 15. neither the aacwa, nor later amendments to title iv-e of the social security act define “reasonable efforts.” according to agency guidance, this was done intentionally, as defining “reasonable efforts” would “be a direct contradiction of the intent of the law,” which calls for a case-by-case determination of whether “reasonable efforts” were made. see u.s. dep’t soc. servs., admin. for child. & fams., child welfare policy manual, 8.3c.4 title iv-e, foster care maintenance payments program, state plan/procedural requirements, reasonable efforts, https:/ /www.acf.hhs.gov/cwpm/public_html/programs/cb/laws_policies/laws/cwpm/poli cy_dsp.jsp?citid=59 [https://perma.cc/kbb2-tx9m] (last visited mar. 17, 2021). 27 see h. rep. green book leg hist., supra note 15. 28 roberts, shattered bonds, supra note 3, at 142. 29 id. at 175. 30 movement for family power et al., supra note 7, at 16, 26. for an extensive discussion how both the news media and lawmakers racialized, 2021] the white supremacy hydra 777 family regulation system spending emphasized permanency for children placed in the foster system by way of adoption over family reunification.31 specifically, asfa required state family regulation system authorities to seek to terminate the rights of parents whose children have been in the foster system for 15 of 22 months.32 in other words, asfa introduced time limits on the reunification services and activities provided to families where children were removed from their home to the foster system to just 15 months.33 asfa also made incentive payments available to states that “increased adoptions from foster care, relative to a baseline number of adoptions.”34 as an incentive to “fast track” children to adoption, states were eligible to receive $4,000 for each child adopted out of the foster system over the established baseline for that state.35 beyond underwriting more expedient terminations of parental rights and adoptions, the federal government also placed limitations on the already vague “reasonable efforts” requirements.36 gendered, and pathologized the use of crack cocaine, and devastating impact that the so called “crack epidemic” and the drug war had on the family regulation system, see also roberts, shattered bonds, supra note 3; nancy d. campbell, regulating “maternal instinct”: governing mentalities of late twentiethcentury u.s. illicit drug policy, 24 signs: j. women in culture and soc’y 895, 895–97 (1999); laura e. gomez, misconceiving mothers: legislators, prosecutors, and the politics of prenatal drug exposure (1997). 31 see erin cloud et al., family defense in the age of black lives matter, 20 cuny l. rev. 68, 84 (2017). 32 see adoption and safe families act of 1997, pub. l. no. 105-89, 111 stat. 2115 (1997) (absent certain exceptions, asfa mandates, “in the case of a child who has been in foster care under the responsibility of the state for 15 of the most recent 22 months . . . the state shall file a petition to terminate the parental rights of the child’s parents . . . and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption). 33 among the services subject to the 15-month time limit was mental health services, inpatient substance abuse treatment programs, domestic violence assistance programs, and family and/or child therapeutic services, and transportation services provided for travel to and from family regulation system services. see child.’ bureau, major legislation, supra note 22. 34 olivia golden & jennifer macomber, the adoption and safe families act (asfa), in intentions and results: a look back at the adoption and safe families act 8, 11 (ctr. for study soc. pol’y & urb. inst. ed., 2009), http://webarchive.urban.org/uploadedpdf/1001351_safe_families_act.pdf [https://perma.cc/ya85-da4e] 35 id. 36 will l. crossley, defining reasonable efforts: demystifying the state’s burden under federal child protection legislation, 12 b.u. pub. int. l.j. 259, 261 (2003). 778 colum. j. race & l. [vol. 11:767 c. regulation through family separation the results of asfa and the federal family regulation policies preceding it are striking. one need only look to title ive of the social security act, the largest federal funding stream for state family regulations systems.37 in state fiscal year 2012,38 the federal government spent nearly $13 billion supporting state family regulation system costs, programs, and services.39 title iv-e spending accounted for nearly $6.5 of the nearly $13 billion.40 of the nearly $6.5 billion, an astounding 51% went to the foster care program, and 35% went to the adoption assistance program.41 the remaining 14% was allocated among the chafee foster care independence program, the guardianship program, and demonstration waivers.42 importantly, key to all of these title iv-e funding programs was the requirement that the children for whom the funds were allocated be removed from their home to the foster system.43 in contrast, title iv-b funding—which funds family support services, family preservation programs, and time limited reunification, among other programs and services—reflected just three percent (a little over $595 million) of federal family regulation system spending.44 not only did the federal government spending on maintaining states’ foster systems and fast tracking adoptions dwarf spending on family preservation, it also dwarfed spending on programs addressing child poverty including the special supplemental nutritional program for women, infants, and children (wic), the children’s health insurance program (chip), and the supplemental nutrition assistance program for children (snap).45 37 jordan & connelly, supra note 1, at 2. 38 generally, “state fiscal year” signifies a 12-month period running from july 1 through june 30 of the following year, and is named for the calendar year in which the state fiscal year ends. all but four states in the united states have fiscal years ending on june 30. see quick reference fiscal table, nat’l conf. state legislatures, https://www.ncsl.org/research/fiscal-policy/basicinformation-about-which-states-have-major-ta.aspx#fyrs [https://perma.cc/wt4f-ebgp] (last visited mar. 17, 2021). 39 jordan & connelly, supra note 1, at 1. 40 id. 41 id. at 5. 42 id. 43 id. 44 id. at 2. 45 see movement for family power, supra note 7, at 26. 2021] the white supremacy hydra 779 the modern family regulation policy pathologization, control, and punishment of black families is borne out by the numbers.46 by the early 2000s, black children were overrepresented in the foster system at a rate of more than twice their population in 36 states, and a rate of more than 3 times their population in 16 states.47 in total, black children were overrepresented in the foster system nationwide at a rate of 2.26 their general child population.48 moreover, data shows that between 2000 and 2011, one out of every nine black children had been removed from their parents, as compared with one in 17 white children.49 black families and children also fare worse at every point within the family regulation system.50 black families are more likely to have maltreatment allegations made against them, more likely to be investigated by state family regulation system authorities, and more likely to have those cases 46 the family regulation system also disproportionately targets indigenous families. while indigenous children represent 2% of the children removed from their homes to the foster system, they represent just 1% of the overall child population in the united states. see u.s. gov’t accountability off., gao-07-816, african american children in foster care: additional h.h.s. assistance needed to help states reduce the proportion in care 73 (2007) [hereinafter goa, african american children in foster care]. moreover, between 2000 and 2011, data show that one out of every seven indigenous children had been removed from their parents. see movement for family power, supra note 7, at 12. as with black families, there is a long history of the u.s. government targeting, pathologizing, controlling and punishing indigenous families and communities. see greenesmith, supra note 13; theresa rocha beardall & frank edwards, abolition, settler colonialism, and the persistent threat of indian child welfare, 11 colum. j. race & l. 533 (2021). this history and the particular way in which it is reproduced and reified today in the modern family regulation system warrants particular attention and further research. given the limitations of this article’s research, this paper focuses on the family regulation system as a cite of pathology, control, and punishment of black families. 47 u.s. gov’t accountability off., supra note 46, at 73. 48 id. 49 see movement for family power, supra note 7, at 12. 50 see dorothy roberts, the racial geography of child welfare: toward a new research paradigm, 87 child welfare j. 127 (2008) [hereinafter roberts, racial geography of child welfare]. see also dorothy roberts & lisa sangoi, black families matter: how the child welfare system punishes poor families of color, appeal (mar. 26, 2018), https://theappeal.org/black-families-matter-how-the-child-welfare-systempunishes-poor-families-of-color-33ad20e2882e [https://perma.cc/6heg-r79g]. 780 colum. j. race & l. [vol. 11:767 substantiated. further, black children are more likely to be removed from their homes to the foster system.51 as black children entered the foster system, many have documented how asfa and the federal family regulation policy increasingly incentivized regulation through family separation.52 roberts points out: [i]t is often forgotten that state agents forcibly remove most of these children and that the mothers are intensely supervised by child welfare authorities as they comply with the agency requirements to be reunified with their children. this state intrusion is typically viewed as necessary to protect maltreated children from parental harm. but the need for this intervention is usually linked to poverty, racial injustice, and the state’s approach to caregiving, which addresses family economic deprivation with child 51 see roberts, racial geography of child welfare, supra note 50, at 127. see also roberts & sangoi, supra note 50. 52 see, e.g., movement for family power, supra note 7; don lash, when the welfare people come 43 (2017); roberts, shattered bonds, supra note 3; rise magazine, “you have to get it together”: asfa’s impact on parents and families, in intentions and results, supra note 34; molly schwartz, do we need to abolish child protective services, mother jones (dec. 10, 2020), https://www.motherjones.com/politics/2020/12/do-we-need-to-abolish-childprotective-services/ [https://perma.cc/2rbn-qfjc] (quoting numerous parents impacted by the family regulation system, activists, and advocates including, joyce mcmillan, angeline montauban, martin guggenheim, emma ketteringham, teyora graves, chris gottlieb, erin miles cloud, and lisa sangoi); erin miles cloud, unraveling criminalizing webs: building police free futures, s&f online, https://sfonline.barnard.edu/unraveling-criminalizingwebs-building-police-free-futures/toward-the-abolition-of-the-foster-system/ [https://perma.cc/p5s6-ql9l] (last visited mar. 14, 2021); martin guggenheim, let’s root out racism in child welfare, too, imprint (june 15, 2020, 2:00 am), https://imprintnews.org/child-welfare-2/lets-root-out-racism-child-welfare-too [https://perma.cc/9nga-vaf8]; elizabeth brico, forced, rapid adoptions are a weapon of the drug war, filter mag. (dec. 21, 2020), https://filtermag.org /forced-adoption-drug-war/ [https://perma.cc/l4q4-zz3e]; chris gottlieb, the lessons of mass incarceration for child welfare, amsterdam news (feb. 1, 2018, 9:28 am), http://amsterdamnews.com/news/2018/feb/01/lessons-massincarceration-child-welfare [https://perma.cc/9dfy-74sw]; emma ketteringham, systems built on good intentions are the most dangerous, frank interviews (aug. 19, 2020), http://www.franknews.us/interviews/429/429 [https://perma.cc/4atc-beyk]; emma s. ketteringham et al., healthy mothers, healthy babies: a reproductive justice response to the “womb-to-foster-care pipeline,” 20 cuny l. rev. 77, 95 (2016); roberts & sangoi, supra note 50. 2021] the white supremacy hydra 781 removal rather than services and financial resources.53 central to federal family regulation policy is the pathologization of black parents, largely black mothers. myopically focusing on alleged “parental defects,” prevents the federal family regulation system from addressing the structural factors that produce marginalized families’ adversities.54 in other words, instead of focusing on structural issues of racism, poverty, housingand food-insecurity, the family regulation system only focuses on the parent. 55 regulation through family separation also enables family regulation agents to exercise expansive control over families caught up in the system. as noted above, parents are subject to intense supervision by family regulation system agents who give parents compulsory “service plans” in order to have their family reunified. often, these service plans consist of a written list of behavior modification services, including parenting classes, anger management classes, drug tests, drug treatment, counseling, psychological evaluations, and visitation with their children.56 but the family regulation system monitoring goes beyond compliance with services. it also regulates with whom parents associate, where they go, and what they do. though family regulation system agencies often frame their interventions as “care” and “support,” regulation through family separation is marked by coercion. for parents who—in the eyes of state family regulation agencies and courts—fail to modify their behavior within asfa timelines, the court may terminate parental rights and fast track the child for adoption. pathologizing black parents, particularly black mothers, and using family separation as a means to control and punish black communities is not new. the roots of these ideologies and techniques reach back to the brutal enslavement of black people 53 dorothy roberts, prison, foster care, and the systemic punishment of black mothers, 59 ucla l. rev. 1474, 1486 (2012). 54 dorothy roberts, the dialectic of privacy and punishment in the gendered regulation of parenting, 5 stan. j.c.r. & c.l. 191, 194 (2009). 55 see lash, supra note 52, at 43. 56 annett r. appell, protecting children or punishing mothers: gender, race, and class in the child protection system, 48 s.c. l. rev. 577, 582–83 (1997); roberts, shattered bonds, supra note 3, at 78–81. see generally lash, supra note 52. 782 colum. j. race & l. [vol. 11:767 in the united states and state-sanctioned white supremacy.57 again, roberts’ analysis is critical here. roberts observes, “black mothers’ bonds with their children have been marked by brutal disruption, beginning with the slave auction where family members were sold to different masters and continuing in the disproportionate state removal of black children to foster care.”58 to this point, david a. love notes: women of color are more likely than [w]hite women to be monitored and supervised by the state, and more likely to experience state control over their bodies and their children. call it a holdover from slavery, when black women have no right to privacy, were violated at will, and could not make decisions regarding themselves, their bodies or their families.59 historically and presently, justification for state-sanctioned family destruction and the devaluating of black motherhood and black children is based on images and narratives of “unfit and dangerous black mothers” cultivated by american culture.60 fundamentally, white supremacy mandates the complete control of black women.61 as with the criminal punishment system, the moment a black woman steps outside of the “controlling narratives developed in service of white colonialism and white supremacy,” she is perceived as a threat justifying a punitive and violent response.62 with this framing, i now examine how the family first prevention services act—the most significant policy shift in federal family regulation system spending policy since asfa—is situated along this continuum. 57 see peggy c. davis & richard g. dudley, jr., the black family in modern slavery, 4 harv. blackletter j. 9 (1987). 58 dorothy roberts, the unrealized power of mother, 5 colum. j. gender. & l. 141, 146 (1995). 59 david a. love, on the criminalization of black motherhood, black commentator (may 8, 2008), https://blackcommentator.com/276/276_col _criminalization_of_black_motherhood_printer_friendly.html [https://perma.cc /5sq9-jdqh]. 60 id. 61 see andrea j. ritchie, invisible no more: police violence against black women and women of color 183 (2017). 62 id. 2021] the white supremacy hydra 783 iii. the family first prevention services act of 2018: a shift in federal family regulation system policy after decades of financially incentivizing the separation of black families, the family first prevention act of 2018 (family first act or the act) reflects a change of course in federal family regulation system.63 for the first time since the establishment of the modern day foster system, the purported goal was to prevent children from entering the foster system. to do so, the family first act opened up iv-e funding for state family regulation system agencies to provide prevention services and programs to families with children who are deemed are “candidates for foster care.”64 unlike prior federal laws, under the family first act, family separation is no longer a prerequisite to states accessing title iv-e funds.65 focusing on the “prevention activities” elements, the family first act allows states to be reimbursed under title iv-e for funds used “to provide enhanced support to children and families and prevent foster care placements through the provision of mental health and substance abuse prevention and treatment services, [and] in-home parent skill-based programs . . . .”66 to do this, the family first act amended the title iv-e program to “authorize new support for services to prevent the need for children to enter foster care.”67 more specifically, under title iv-e, states may seek federal reimbursement for part of the cost associated with providing “foster care prevention services,” 63 while this article focuses exclusively on the family first act’s provisions related to “prevention activities,” the act also ushers in new requirements for congregate/group care foster placements, provides more funding authority to improve processing systems for the interstate placement of children, and provides more financial support for kinship navigator programs and foster independence programs. see bipartisan budget act of 2018, pub. l. no. 115-123, §§ 50701–82, 132 stat. 64 (2018). see also family first prevention services act, nat’l conf. state legislatures (apr. 1, 2020), https://www.ncsl.org/research/human-services/family-first-prevention-servicesact-ffpsa.aspx [https://perma.cc/s6wb-gb78]. 64 bipartisan budget act of 2018. 65 id. 66 id. 67 h. rep., comm. on ways & means, green book, chapter 11: prevention, foster care, and adoption (2018), https://greenbookwaysandmeans.house.gov/2018-green-book/chapter-11-prevention-foster-careand-adoption [https://perma.cc/tl3q-8ey2]. 784 colum. j. race & l. [vol. 11:767 including evidence based “[m]ental health and substance abuse prevention and treatment services provided by a qualified clinician” and “[i]n-home parent skill-based programs.”68 a state, however, may not seek unlimited reimbursement. the act caps reimbursement for title iv-e prevention services and programs at 12 months,69 although funding can be extended on a “case-by-case basis.”70 the act also establishes certain criteria in order to be eligible for title iv-e reimbursement. among other requirements, prevention services must be “provided in accordance with . . . practices” that are “promising,” “supported” or “well-supported.”71 importantly, the act’s reach, in terms of the families to whom states can provide title iv-e prevention services is broad; it covers “children who are candidates for foster care or who are pregnant or parenting foster youth and the parents or kin caregivers of the children.”72 the act defines a child who is “a candidate for foster care” as “a child who is identified in a prevention plan . . . as being at imminent risk of entering foster care . . . but who can remain safely in the . . . home or in a kinship placement”73 with the provision of prevention services or programs.74 though states’ access to title iv-e prevention funds is not without limits, 68 bipartisan budget act of 2018. 69 id. 70 u.s. dep’t health & hum. serv., admin. for child. & fam., chid.’ bureau, state requirements for electing title iv-e prevention and family services and programs 4 (2018) [hereinafter admin. for child. & fam., state requirements], https://www.acf.hhs.gov/sites/default/files /documents/cb/pi1809.pdf [https://perma.cc/29g9-dlnr]. 71 see bipartisan budget act of 2018, pub. l. no. 115-123, 132 stat. 64 (2018). in broad strokes, a “promising practice,” is “[c]reated from an independently reviewed study that uses a control group and shows statistically significant results”. a supported practice “[u]ses a random-controlled trial or rigorous quasi-experimental design” and “[m]ust have sustained success for at least six months after the end of treatment”. a well-supported practice “[s]hows success beyond a year after treatment. nat’l conf. state legislatures, supra note 63. 72 bipartisan budget act of 2018. 73 the family first act defines a “prevention plan” as a written plan that must include certain components, depending on whether the child is “a candidate for foster care” or a “pregnant or parenting foster youth.” bipartisan budget act of 2018. 74 see first focus campaign for children, family first prevention services act: section by section 1 (2018), https://campaignforchildren.org/wp-content/uploads/sites/2/2016/06/ffccsection-by-section-ffpsa.pdf [https://perma.cc/e3wm-8ajt]. 2021] the white supremacy hydra 785 federal agencies interpret the family first act broadly in order to allow states to provide prevention services early and proactively.75 at first glance, the family first act appears to be a repudiation of, and break from, federal family regulation policy that came before it. but, a more discerning look at the family first act suggests otherwise. first, we must consider both the impetus for the family first act, and the prevention paradigm upon which the family first act rests. a. impetus for the family first act though first introduced in 2016 jointly in the u.s. house of representatives and the u.s. senate, advocacy of key provisions in the family first act began as early as 2014.76 but, to fully understand the reasons behind the shift in federal policy, we must start at 2013.77 following a peak of 567,000 of children in the foster system nationwide in 1999, the number of children entering the foster system steadily declined until around 2013— at which point the numbers of children being forcibly separated from their families and entering the foster system began to increase.78 even more troubling to lawmakers and policymakers 75 see generally, admin. for child. & fam., state requirements, supra note 70. see also the opioid crisis: implementation of the family first prevention services act (ffpsa): hearing before the subcomm. on hum. res. of the h. comm. on ways and means, 115th cong. (2018) [hereinafter h. comm. on ways & means, opioid hearing] (testimony of jerry milner, assoc. comm’r of the child.’ bureau & acting comm’r of the admin. on child., youth & families, u.s. dep’t of health & hum. servs.), https://www.govinfo.gov /content/pkg/chrg-115hhrg33873/html/chrg-115hhrg33873.htm [https://perma.cc/3u7c-yk4e]. 76 daniel heimpel, inside game: the key players behind washington’s biggest foster care reform in decades, imprint (mar. 7, 2018, 6:17 am), https://imprintnews.org/featured/inside-game-how-foster-care-changedforever/30118 [https://perma.cc/924n-4a67]. 77 see h. comm. on ways & means, opioid hearing, supra note 75; see also examining the opioid epidemic: challenges and opportunities: hearing before the s. comm. on fin., 114th cong. 35 (2016) [hereinafter s. comm. on fin., opioid hearing] (statement of sen. robert p. casey, jr.), https://www.govinfo.gov/content/pkg/chrg-114shrg23291/pdf/chrg114shrg23291.pdf [https://perma.cc/f9cc-u7se]. 78 s. comm. on fin., opioid hearing, supra note 77, at 8; see also about the law: family first prevention services act, familyfirstact.org, https://www.familyfirstact.org/about-law [https://perma.cc/x4ll-xw3u] (last visited mar. 17, 2021) (noting a steady increase of children interesting the foster system beginning in 2012 after years of decline). 786 colum. j. race & l. [vol. 11:767 alike was that among this group the number of infants entering the foster system were at least double that of children of other ages.79 coinciding with this increase was the national opioid crisis. the crisis resulted in 450,000 opioid overdose related deaths between 1999 and 2018.80 currently, no data exists establishing a specific causal relationship between the opioid crisis and the massive expansion of the nation’s foster system.81 nevertheless, faced with increasing numbers of children entering the foster system and national data showing parental drug abuse as a key factor in child removal,82 lawmakers and policymakers adopted the narrative that the opioid crisis was driving the rapid expansion of the foster system. for example, in a senate finance committee hearing on the opioid epidemic, republican bill sponsor senator orrin g. hatch, warned: the current opioid epidemic is just the latest manifestation of an ongoing problem in child welfare. whether it be the crack cocaine epidemic of the 1980s, the methamphetamine epidemic that has plagued many rural areas, or the current opioid crisis, we have seen time and again that the 79 id. at 67 (prepared statement of nancy k. young, ph.d., director of children and family futures, inc.). 80 opioid overdose: understanding the epidemic, ctrs. for disease control & prevention (mar. 19, 2020), https://www.cdc.gov/drugoverdose /epidemic/index.html [https://perma.cc/qf9d-c3vb]. 81 sarah c. williams & kerry devooght, 5 things to know about the opioid epidemic and its effects on children, child trends (june 2, 2017), https://www.childtrends.org/publications/5-things-to-know-about-the-opioidepidemic-and-its-effect-on-children [https://perma.cc/sp3t-lfae]. 82 between 2016 and 2019, so-called parental drug abuse, a subset of neglect, accounted for between 34% and 36% of child removals to the foster system. see child.’ bureau, the afcars report: preliminary fy 2016 estimates as of oct 20, 2017 no. 24 (2017), https://www.acf.hhs.gov /sites/default/files/documents/cb/afcarsreport24.pdf [https://perma.cc/e5czbg6s]; child.’ bureau, the afcars report: preliminary fy 2017 estimates as of august 10, 2018 no. 25 (2018), https://www.acf.hhs.gov /sites/default/files/documents/cb/afcarsreport25.pdf [https://perma.cc/5sl9daqp]; child.’ bureau, the afcars report: preliminary fy 2018 estimates as of august 22, 2019 no. 26 (2019), https://www.acf.hhs.gov/sites /default/files/documents/cb/afcarsreport26.pdf [https://perma.cc/3xgj-9ll4]; child.’ bureau, the afcars report: preliminary fy 2019 estimates as of june 23, 2020 no. 27 (2020), https://www.acf.hhs.gov/sites /default/files/documents/cb/afcarsreport27.pdf [https://perma.cc/6dr5-5235]. 2021] the white supremacy hydra 787 child welfare system is ill-equipped to deal with families struggling with substance abuse.83 also connecting the crisis in the foster system and the opioid crisis, democratic bill sponsor senator ron. wyden underscored the need for “better prevention, better treatment, and better and tougher enforcement.”84 senator wyden cautioned of “pregnant mothers giving birth to opioid-dependent babies,” warning that “[a] parent’s drug addiction is becoming a growing reason for removing children from their homes and placing them in foster care.”85 similarly, advocates and policymakers framed the opioid crisis as a “child welfare” crisis, noting that the “opioid crisis has drawn national attention to the challenges that substance misuse and addiction pose for children, families, and communities,” and claiming that “opioid epidemic is placing new demands on child welfare caseloads.”86 following the family first act’s enactment, lawmakers reiterated the connection between the opioid crisis and the expansion of the foster system. for example, during one u.s. house of representatives 83 s. comm. on fin., opioid hearing, supra note 77, at 2 (statement of sen. orrin g. hatch). 84 id. at 4 (statement of sen. ron wyden). 85 id. at 5. see also bipartisan senate, house leaders announce proposed child welfare legislation, s. comm. on fin. (june 10, 2016), https://www.finance.senate.gov/chairmans-news/bipartisan-senate-houseleaders-announce-proposed-child-welfare-legislation [https://perma.cc/3hbrzmja]. 86 casey fam. programs, what is the impact of substance abuse on child welfare? 1 (2018), https://caseyfamilypro-wpengine.netdnassl.com/media/sf_substance-abuse-resource-list_fnl.pdf [https://perma.cc/5y2r-yg5e]. see also, opioid use, nat’l ctr. for healthy safe child., https://healthysafechildren.org/opioid-use [https://perma.cc/dl83tulg] (last visited dec. 26, 2020) (noting the increase in children entering the foster system between 2014 and 2015 and concluding that “[t]he opioid epidemic has reached crisis proportions and is having a devastating impact on children and families in rural, urban, and tribal communities across the country.”); stephanie pham, how the opioid epidemic harms youth and families, imprint (june 29, 2017, 3:00 pm), https://imprintnews.org/research-news/opioidepidemic-harms-youth-families/27348 [https://perma.cc/r5xp-xf9p] (noting that “[t]hough federal child welfare data does not specify the type of drugs being abused, many officials have linked this surge [in the foster system nationwide] with the opioid epidemic.”); williams & devooght, supra note 81 (noting that though there is no available data directly linking the opioid epidemic to the expansion of the nationwide foster system, there are “many anecdotal reports linking the opioid epidemic to increases in the number of children in foster care”). 788 colum. j. race & l. [vol. 11:767 committee hearing focusing specifically on the opioid crisis and implementation of the act, representative adrian smith opened the hearing by explaining that “[b]oth the data and the experience of those on the front lines indicate substance abuse, specifically opioid use and overdose, are a contributing factor.”87 as such, the opioid crisis was not viewed just a public health issue, but also a family regulation issue. b. prevention as the solution faced with the opioid crisis and the rapid uptick of children entering the foster system nationwide, lawmakers and family regulation system policymakers called for a shift from a system that incentivized forced family separation and placement in the foster system to a system that incentivized prevention.88 87 h. comm. on ways & means, opioid hearing, supra note 75; (opening remarks of representative adrian smith, chairman of the house ways and means subcomm. on hum. res.). 88 as noted above, the opioid crisis created, at least in part, among lawmakers and policymakers a perceived need for a different, preventionoriented family regulation system response. as meticulously documented by various scholars, during so-called crack epidemic of the late 1980s and 1990s the narrative around use of smokable cocaine was pathologized and demonized, and the typical user was narratively constructed as a black, urban, and poor. see, e.g., gomez, supra note 30; michelle alexander, the new jim crow (2010). on the other hand, many have observed that the narrative constructed around opioid crisis is notable for its whiteness. see, e.g., khiara m. bridges, race, pregnancy, and the opioid epidemic: white privilege and the criminalization of opioid use during pregnancy, 133 harv. l. rev. 771, 789 (2020); julie netherland and helena b. hansen, the war on drugs that wasn’t: wasted whiteness, “dirty doctors,” and race in media coverage for prescription opioid misuse, 40 cult med psychiatry 664 (2016). according to a 2016 national survey on drug use and health, the prevalence of opioid use disorder was highest among white americans (72.29%), with a lower prevalence along black americans and latinx americans (9.23% and 13.82%, respectively). see the white house, the president’s comm’n on combating drug addiction and the opioid crisis (2017), https://www.hsdl.org/?view&did=805384 [https://perma.cc/vbd8-8vjc]. of the 450,000 opioid overdose related deaths between 1999 and 2018, white americans represented the largest proportion each year. see opioid overdose deaths by race/ethnicity, kaiser family foundation (nov. 14, 2020), https://www.kff.org/other/state-indicator/opioidoverdose-deaths-by-raceethnicity/?currenttimeframe=3&sortmodel= %7b%22colid%22:%22location%22,%22sort%22:%22asc%22%7d [https://perma.cc/lq4s-yzz5]. as observed by legal scholar khiara m. bridges, while the opioid crisis did not “disproportionately” affect white people, given that white americans comprise 77% of the united states population, the sheer number of white people that died from opioid overdose led to the construction of the opioid crisis as being “fundamentally about” white people. see bridges, 2021] the white supremacy hydra 789 the family first act does not require states to use any specific prevention model. nevertheless, examining the prevention paradigm is important because prevention is a significant guiding principle of the family first act. prevention is not a new concept within federal family regulation policy.89 in the early 2000s, federal policy increasingly shifted its focus (though not necessarily through funding) to prevention efforts.90 specifically, it embraced prevention programming supporting “protective factors,” deemed by some as “necessary to help families offset parenting stress and make children and families safer.”91 the federal children’s bureau explains, “[a] protective factors approach to the prevention of child maltreatment focuses on positive ways to engage families by emphasizing their strengths and what parents and caregivers are doing well, as well as identifying areas where families have room to grow with support.”92 among the protective factors centered in federal family regulation policy are “[p]arental resilience,” “[n]urturing and attachment,” “[k]nowledge of parenting and child development,” “[c]oncrete supporting times of need,” “[s]ocial connections,” and “[s]ocial-emotional competence of children.”93 fundamentally, the protective factors prevention model focuses squarely on parental behavior modification, with the goal of helping “children, youth, and families build resilience and develop skills, characteristics, knowledge, and relationships that offset risk exposure and contribute to both shortand long-term positive outcomes.”94 with respect to parents, the federal children’s bureau child welfare information gateway explains that supra note 88, at 789. worth further exploration and research is the extent to which the perception of the opioid crisis as a “white crisis” created an imperative among lawmakers and policymakers to financially incentivize preventionoriented family regulation system interventions rather than swift removal to the foster system. 89 child.’ bureau, child maltreatment prevention: past, present, and future 4 (2017) 4, https://www.childwelfare.gov/pubpdfs /cm_prevention.pdf [https://perma.cc/7wln-g4jx]. 90 id. 91 id. 92 child.’ bureau, protective factors approaches in child welfare 2 (2020), https://www.childwelfare.gov/pubpdfs/protective_factors .pdf [https://perma.cc/xgv8-843g]. 93 id. 94 id. 790 colum. j. race & l. [vol. 11:767 protective factors “can serve as safeguards, helping parents who otherwise might be at risk find resources, support, or coping strategies that allow them to parent effectively—even under stress.”95 absent from the prevention model and protective factors approach is any offering of concrete solutions to the structural obstacles facing black and other marginalized people—including lack of access to affordable housing; child care; health care; jobs that pay a living wage; environmental injustice; food insecurity; and mass incarceration.96 this omission is even more striking because many studies find that addressing these exact structural barriers, and lack of material resources, correlate with reductions of what the family regulation system considers “child maltreatment.”97 for instance, one study found that increases in minimum wage corresponded with a reduction in family regulation system involvement, particularly reports of neglect involving young children (aged 0–5) and school-aged children (aged 6–12).98 based on these findings, the researchers suggest that “[i]mmediate access to increases in disposable income may affect family and child well-being by directly affecting a caregiver’s ability to provide a child with basic needs . . . .”99 yet another study examined the relationship between states’ earned income tax credits (eitc) with rates of child maltreatment reports. the study found that availability of the eitc benefit corresponded with lower rates of reported child neglect.100 the 95 id. at 1. 96 see see darrick hamilton, neoliberalism and race, democracy j., https://democracyjournal.org/magazine/53/neoliberalism-and-race/ [https://perma.cc/xwf7-8rxq] (last visited mar. 18, 2021) (discussing the myriad factors that have prevented black americans from achieving economic inclusion in the united states). 97 see movement for family power et al., supra note 7, at 39 (collecting studies). see also kelley fong, “the tool we have”: why child protective services investigates so many families and how even good intentions backfire, council on contemp. fam. (aug. 11, 2020), https://contemporaryfamilies.org/cps-brief-report/ [https://perma.cc/zg3vh9s9] (collecting studies). 98 see kerri m. raissian & lindsey rose bullinger, money matters: does the minimum wage affect child maltreatment rates?, 72 child. & youth servs. rev. 60, 63–66 (2016). 99 id. at 65. 100 nicole l. kovski et al., association of state-level earned income tax credits with rates of reported child maltreatment, 2004–2017, 20 j. child maltreatment 1, 1 (2021). 2021] the white supremacy hydra 791 researchers found that the more generous the states’ etic, the greater the decline in rates of reported child neglect.101 despite these findings, the federal family regulation system approach to prevention focuses not on eradicating poverty and adversities stemming from it, but rather on enhancing parents’, children’s, and families’ capacity to cope with their living conditions and the “risk factors” that they face. iv. the family first act codifies the family regulation system’s investment in pathologizing, controlling, and punishing black mothers having identified a prevention model as the solution to the opioid and foster system crises, the family first act was hailed as a “fundamental re-ordering of foster care.”102 lawmakers proclaimed that the law was enacted to “fundamentally shift child welfare from separating families to strengthening them.”103 indeed, the act’s core aim is to “prevent[] child abuse and neglect primarily through strengthening the resiliency and protective capacity of families.”104 lauded by many for its sweeping changes to federal family regulation system’s spending policy, little attention has been given to how the family first act codifies the family regulation’s system reliance on pathology, control, and punishment. a. the family first act: a continued myopic focus on perceived “parental defects” like the federal family regulation policy that preceded it, and in conformity with the prevention paradigm, the family first act embraces pathology and a behavior modification theory of change. in the three areas of time-limited prevention for which states may seek title iv-e reimbursement, the act focuses on shifting parental behavior, whether it be their mental health, 101 id. 102 heimpel, supra note 76. 103 h. comm. on ways & means, opioid hearing, supra note 75; (opening remarks of representative adrian smith, chairman of the house ways and means subcomm. on hum. res.). 104 jerry milner, trump’s top child welfare official: family first a good first step, but true prevention is key, imprint (feb. 14, 2018), https://imprintnews.org/featured/trumps-top-child-welfare-official-family-firstgood-first-step-true-prevention-key/29901 [https://perma.cc/8948-zsuc]. 792 colum. j. race & l. [vol. 11:767 substance use, or parenting skills. indeed, to be eligible for family first act reimbursement, many programs—including inhome parenting skills, mental health, and substance abuse treatment—must contain a counseling or behavioral therapeutic component.105 to understand the centrality of behavior modification, one need only look at the programs that have been approved thus far by the prevention services clearing house. consider a few of the prevention services that have been rated by prevention services clearing house as “well supported”: • brief strategic family therapy uses “structured family systems approach to treat families with children . . . who display or are at risk for developing problem behaviors including substance abuse, conduct problems, and delinquency.” the “intervention components” are: (1) counselors “establish relationships with family members to better understand and ‘join’ the family system”; (2) counselors observe the ways that family members behave together/interact with each other; and (3) “counselors work in the present, using reframes, assigning tasks and coaching family members to try new ways of relating to one other to promote more effective and adaptive family interactions.”106 • motivational interviewing is a counseling program “designed to promote behavior change and improve physiological, psychological, and lifestyle outcomes.” the motivation interviewing model seeks to “identify ambivalence for change and increase motivation by helping clients progress through five stages of change: pre-contemplation, contemplation, preparation, action, and maintenance.”107 105 sandra jo wilson et al., office of plan., rsch., & evaluation, admin. for child. & fams’, title vi-e prevention services clearinghouse: handbook of standards and procedures, version 1.0 2– 3 (2019), https://preventionservices.abtsites.com/themes/ffc_theme/pdf /psc_handbook_v1_final_508_compliant.pdf [https://perma.cc/937d-vggr]. 106 brief strategic family therapy, title iv-e prevention servs. clearinghouse, https://preventionservices.abtsites.com/programs/251/show [https://perma.cc/5lsx-rhxv] (last updated dec., 2020). 107 motivational interviewing, title iv-e prevention servs. clearinghouse, https://preventionservices.abtsites.com/programs/256/show [https://perma.cc/dx5v-pzmu] (last updated dec., 2020). 2021] the white supremacy hydra 793 • healthy families america is a home visiting program where the goal is to “cultivate and strengthen nurturing parent-child relationships, promote healthy childhood growth and development, and enhance family functioning by reducing risk and building protective factors.”108 • parents as teachers is a home visiting program that “teaches new and expectant parents skills intended to promote positive child development and prevent child maltreatment.” the core components of parents as teachers are: “personal home visits, supportive group connection events, child health and developmental screenings, and community resource networks.”109 • homebuilders – intensive family preservation and reunification services is an “in-home counseling, skill building[,] and support service[] for families,” that uses intervention strategies such as “motivational interviewing, a variety of cognitive and behavioral strategies, and teaching methods intended to teach new skills and facilitate behavior change.”110 absent from all but one (homebuilders) of the programs’ descriptions is any reference to the provision of material resources as an intervention strategy. consistent with the prevention paradigm, all of the programs center, and indeed several explicitly highlight, behavior modification as a core objective. the family fist act’s focus on individual behavior modification suggests that a core ideology, like the federal family regulation policy that preceded it, is the notion that parents’ behaviors and choices are to blame for the circumstances that led to their family’s involvement in the family regulation system. in other words, under the family first act, it is still the choices of 108 healthy families america, title iv-e prevention servs. clearinghouse, https://preventionservices.abtsites.com/programs/253/show [https://perma.cc/pyg5-gwpf] (last updated dec., 2020). 109 parents as teachers, title iv-e prevention servs. clearinghouse, https://preventionservices.abtsites.com/programs/250/show [https://perma.cc/r9z4-dep8] (last updated dec., 2020). 110 homebuilders – intensive family preservation and reunification services, title iv-e prevention servs. clearinghouse, https://preventionservices.abtsites.com/programs/254/show [https://perma.cc/2ta9-lhrd] (last updated dec., 2020). 794 colum. j. race & l. [vol. 11:767 black mothers, and their personal “deficits,” rather than the structures that reinforce and reproduce privilege and disadvantage, that threaten black children most. but to place blame on individual character flaws as the reason for families being involved in the family regulation system is a political choice that has long been used to stymie critique of and challenges to the structures that uphold privilege and disadvantage. many families impacted by the family regulation system, activists, scholars, researchers, and advocates have noted that poverty is an overwhelming and unifying characteristic of the families enmeshed in the family regulation system.111 neither the family first act, nor the prevention paradigm guiding it, contends with, nor reckons with the fact that these disproportionalities become all the starker for black children. neither the act, nor its fundamental paradigm puts federal family regulation system dollars towards addressing the reality that black people are overrepresented in the population of people living in poverty in the united states.112 rather than building out a radical anti-poverty program, the family first act builds out behavior modification program. as a concrete example, “inadequate housing” was identified as a “circumstance associated with a child’s removal” in 10% of children entering the foster system each year between 2016 and 2019.113 research shows that a lack of access to stable 111 appell, supra note 56, at 583; child.’ bureau, u.s. dep’t health & hum. servs., national survey of child and adolescent well-being (nscaw) 8–32 (2005) [hereinafter child.’ bureau, national survey of child and adolescent well-being], https://files.eric.ed.gov/fulltext /ed501301.pdf [https://perma.cc/x8su-u8xs] (noting that of the families involved in the family regulation system, nearly 40% fall below the poverty line). 112 joseph dalaker et al., cong. rsch. serv., r44698, demographic and social characteristics of persons in poverty: 2015 5– 6 (2016), https://greenbook-waysandmeans.house.gov/sites/greenbook .waysandmeans.house.gov/files/r44698%20-%20demographic%20and %20social%20characteristics%20of%20persons%20in%20poverty%20%202015.pdf [https://perma.cc/s6rr-fngn]. 113 see child.’ bureau, the afcars report: preliminary fy 2016 estimates as of oct 20, 2017 no. 24 (2017), supra note 82; children’s bureau, the afcars report: preliminary fy 2017 estimates as of august 10, 2018 no. 25 (2018), supra note 82; children’s bureau, the afcars report: preliminary fy 2018 estimates as of august 22, 2019 no. 26 (2019), supra note 82; children’s bureau, the afcars report: preliminary fy 2019 estimates as of june 23, 2020 no. 27 (2020), supra note 82. 2021] the white supremacy hydra 795 and safe housing can have a range of negative effects on children’s health, development, educational achievement, and emotional wellbeing.114 research also shows that stable housing plays an important role in people’s recovery from substance use disorder, yet people with substance use disorders face myriad barriers to affordable housing.115 housing insecurity is also linked to food insecurity.116 in 2015, nearly 16 million households in the united states were food insecure.117 and just as the family regulation system disproportionately affects marginalized communities, so too does food insecurity. due to historic racialized policies that diminished resources in marginalized communities, food insecurity “disproportionately affects racial and ethnic minorities, low-income families, and households with children . . . .”118 to this point, one study found that nearly one quarter of families enmeshed in the family regulation system had trouble paying for basic necessities.119 given the numerous impacts that housing and food insecurity has on people’s lives, it is not surprising that various international organizations—including the world health organization and the united nations commission for human rights—have recognized the critical importance of adequate housing. specifically, the world health organization advised that “[i]mproved housing conditions can 114 veronica gaitan, how housing affects children’s outcomes, urban institute (jan. 2, 2019) https://housingmatters.urban.org/articles/howhousing-affects-childrens-outcomes [https://perma.cc/w6tq-cn7s]. 115 see ctr. on budget & pol’y priorities, meeting the housing needs of people with substance use disorders 1–2 (2019), https://www.cbpp.org/sites/default/files/atoms/files/5-1-19hous.pdf [https://perma.cc/av26-w6ga]; susan g. pfefferle et al., u.s. dep’t of health & hum. servs., choice matters: housing models that may promote recovery for individuals and families facing opioid use disorder iv (2018), https://aspe.hhs.gov/system/files/pdf/261936/choice.pdf [https://perma.cc/4ssn-kqee] (noting the well-established association between opioid use disorder and homelessness, and finding that lack of stable housing creates barriers to engaging in medication assisted treatment, which is a welldocumented evidence based treatment to treat opioid use disorder). 116 kierra s. barnett, glennon sweeney & mikyung baek, food or shelter? an introduction to understanding the connections between housing and food insecurity, medium (aug. 1, 2017), https://medium.com/the-blockproject/food-or-shelter-156928546a0e [https://perma.cc/zhu9-aunv]. 117 id. 118 id. 119 child.’ bureau, national survey of child and adolescent well-being supra note 111. 796 colum. j. race & l. [vol. 11:767 save lives, prevent disease, increase quality of life, reduce poverty, [and] help mitigate climate change . . . .” among other things.120 recognized as a basic human right by international human rights law, the united nations commission for human rights takes an expansive view of the right to adequate housing and urges that the right be seen as “the right to live somewhere in security, peace and dignity.”121 and although research shows that it is nearly impossible for families to achieve housing stability without access to subsidized housing, the subsidized housing stock decreased at the same time that need for subsidized housing has “skyrocketed.”122 indeed, the united states’ approach to housing insecurity and inequality is a political choice that continues to fuel the racial wealth gap.123 take for instance, housing policies like the mortgage interest tax deduction bestow the greatest benefits on wealthy families, and exclude in its entirety those who do not own a home.124 as household wealth increases, so too do the benefits from the mortgage interest tax deduction.125 the prioritization of wealth over the reduction of poverty is even clearer when comparing the housing subsidies. in 2015, the cost of the mortgage interests and property tax deductions was $90 billion dollars, while the cost for federal rental assistance programs was $51 billion, nearly $40 billion less.126 120 world health organization, who housing and health guidelines: executive summary 4 (2018), https://www.who.int/publications /i/item/9789241550376 [https://perma.cc/6758-xty7]. 121 office of u.n. high comm’r for hum. rts., the right to adequate housing 3 (2009), https://www.ohchr.org/documents/publications/fs21_rev _1_housing_en.pdf [https://perma.cc/7vzb-hl8j]. 122 child homelessness: a growing crisis, u.s. dep’t health & hum serv., substance abuse & mental health servs. admin., https://www.samhsa.gov/homelessness-programs-resources/hpr-resources/childhomelessness-growing-crisis [https://perma.cc/7mf2-b9m2] (last updated july 31, 2019). 123 see generally inst. on assets and soc. pol’y & nat’l low income hous. coal., misdirected investments: how the mortgage interest deduction drives inequality and the racial wealth gap 5 (2017), https://heller.brandeis.edu/iasp/pdfs/racial-wealth-equity/racial-wealthgap/misdirected-investments.pdf [https://perma.cc/kp6h-7be2]. 124 id. 125 see id. 126 ezra levin & david meni, the biggest beneficiaries of housing subsidies? the wealthy., talk poverty (june 30, 2016), https://talkpoverty.org/2016/06/30/biggest-beneficiaries-housing-subsidieswealthy/ [https://perma.cc/f5g5-wbm6]. 2021] the white supremacy hydra 797 federal housing policy, on the one hand, creates protective barriers around wealth and furthers wealth concentration. on the other hand, where the family regulation system reflexively pathologizes parents, housing instability among those within in the system is often attributed to personal “deficits.” in fact, one study found that while families were more likely to identify needing assistance, such as housing, family regulation system case workers more readily identified and prioritized the needs related to perceived parental deficits.127 yet another study found that family regulation system case workers in connecticut “could offer little to address families’ chronic material needs.”128 sociologist kelley fong notes, “[m]aterial hardship creates conditions that make child maltreatment more likely . . . but cps is structured around addressing parents’ abusive and neglectful behaviors, not meeting families’ persistent needs.”129 fong further points out that while for families in new haven “housing needs were paramount,” cps lacked the ability to provide rental assistance or address this need in any sustained way.130 born out of a prevention paradigm—again, which is rooted in pathology—it is unsurprising the family first act is not structured to provide housing or the material resources necessary to secure safe, stable housing. the act instead continues the tradition of behavior modification as the policy solution to the problems faced by system-involved families. b. the family first act: a continuation of the family regulation system tradition of expansive control as noted above, federal family regulation policy of the 1980s and 1990s exercised expansive control over parents caught up in the system. to engender compliance with therapeutic interventions, including intense monitoring and mandatory “services,” federal family regulation policy funded coercive techniques—mainly the removal of children from their families to the foster system. the family first act does not disrupt 127 see generally mark e. courtney et al., housing problems experienced by recipients of child welfare services, 83 child welfare 393 (2004). 128 kelley fong, getting eyes in the home: child protective services investigations and state surveillance of family life, 85 am. socio. rev. 610, 624 (2020). 129 id. 130 id. 798 colum. j. race & l. [vol. 11:767 federal family regulation system’s embrace of expansive control over black families. the family first act merely shifts the fundamental goal of coerced immediate removal of children to the foster system to the threat of removal to the foster system. to exercise expansive control over families subjected to the family regulation system, the family first act relies on a familiar set of tools. as with the federal family regulation policy that preceded it, ongoing monitoring is central to the family first act. for instance, the act requires ongoing, periodic risk assessments during the period in which prevention services are provided. to achieve this, the act necessarily anticipates monitoring of families by family regulation system agency case workers.131 while few things approach the level of violence that is family separation, persistent, unconstrained government monitoring and supervision is not benign. and the threat of family separation to compel acquiescence can be equally traumatic. family regulation system monitoring creates a level of surveillance that is unimaginable for those with racial and class privilege.132 as fong notes, “merged supportive and coercive capacities [of the family regulation system] yield an expansive, stratified, and distressing surveillance, with everyday system interactions—a doctor’s visit, a child going to school—opening families up to the state.”133 those under the family regulation system’s critical and constant gaze are required to open their homes to family regulation system workers whenever those workers appear, answer far-reaching inquiries into their mental health, medical, sexual, and romantic histories. and they must 131 children’s defense fund et al., implementing the family first prevention services act: a technical guide for agencies, policymakers and other stakeholders (2020), https://www.childrensdefense.org/wp-content/uploads/2020/07/ffpsaguide.pdf [https://perma.cc/t76v-9dy6]. 132 see also we be imagining podcast, minisode 4 mother’s day in the trenches: abolishing the child welfare system, am. assemb. (may 10, 2020), https://americanassembly.org/wbi-podcast/minisode-child-welfare-ae7rh84pj52-254c6-kxlej [https://perma.cc/q33x-y6q7] (activist and organizer joyce mcmillan discussing the expansive surveillance of back families in new york city by the administration for children’s services, new york city’s family regulation system agency). 133 fong, supra note 128, at 628. 2021] the white supremacy hydra 799 disclose this otherwise protected and deeply private health information.134 implicit in the family regulation system intervention is the government’s signal to children that their parent is no longer their protector. the government removes parents’ ability to shield their children from the governments’ equally invasive and traumatizing interventions, including far reaching family regulation system agency inquiries about the family’s “functioning” and composition in both the home and at children’s schools, and strip-searches. if parents do not acquiesce, they can be reported as “non-compliant,” defiant, and meriting further suspicion and surveillance.135 nor are parents’ family, friends, community members, or social service providers off limits. rather, case workers seek information about the parent from parents’ extended network, and indeed deputize parents’ communities and social service providers as de facto extensions of the family regulation system monitoring and surveillance apparatus.136 external entities upon which families depend for 134 see id. at 623 (noting that “cps investigations are much more informationally invasive,” involving multiple home visits, far reaching interviews of all household members and criminal background checks of all household members). see also doriane lambelet coleman, storming the castle to save the children: the ironic costs of a child welfare exception to the fourth amendment, 47 wm. & mary l. rev. 413, 518 (2005). 135 see michelle burrell, what can the child welfare system learn in the wake of the floyd decision?: a comparison of stop-and-frisk policing and child welfare investigations, 22 cuny l. rev. 124, 132, 138–139 (2019); emma s. ketteringham et al., supra note 52, at 95. 136 similar forms of commandeering are also apparent in the way that social service agencies operate with respect to black, latinx, indigenous, and low-income families. sociologist kelley fong explains, “child welfare surveillance of families encompasses not only surveillance by child welfare authorities[,] . . . but also a more extensive monitoring by other entities for child welfare authorities,” such as the health care system. kelley fong, concealment and constraint: child protective services fears and poor mothers’ institutional engagement, 97 soc. forces 1785, 1786 (2019). fong’s research reveals that parents identified risks in interactions with social service providers such as health care systems, and “acknowledged their vulnerability to [child welfare] reports because professionals could misconstrue their best efforts to parent their children.” id. at 1792. while in some extreme situations parents avoided social service systems all together, fong found that most often parents engaged in “selective visibility, concealing personal details or behaviors as they interacted with systems.” id. at 1793. 800 colum. j. race & l. [vol. 11:767 vital services “not only broker resources[,] . . . but also broker surveillance.”137 to fully appreciate the family regulation system’s expansive reach, it is imperative to understand the system’s shift from incentivizing and relying on separation of the family unit and removal of the child at the system’s inception, to intensive monitoring and supervising of the family with the threat of family separation. these two mechanisms are a continuum rather than separate, unrelated systems of control. given the family first act’s reliance on intensive monitoring as a mechanism of control, one open question is whether the family first act will reduce the number of families enmeshed in state family regulation systems. because of the family first act’s recent enactment, there is not yet data available to know the outcome of the policy shift. new york, however, made a statelevel policy change prior to the enactment of the family first act, and thus is an interesting frame of reference. if the act’s implementation is anything like new york, the family first act will likely not reduce the number of families with the family regulation system. in the early 2000s, new york state redirected a stream of family regulation system funding toward prevention services.138 following this funding shift, new york city’s foster population decreased from more than 40,000 to just over 8,000.139 coinciding with the decrease in nyc foster population was a massive increase in intensive monitoring and supervision by way of prevention services, which fall under the purview of nyc’s family regulation agency, the administration for children’s services (acs). as of 2019, over 45,000 families were under prevention services, administered by the nyc’s administration for children’s services.140 as such, in new york 137 fong, supra note 128, at 629. 138 new york state office of child. & fam. servs., final report to the legislature child welfare financing: december 2006 2–3 (2006), https://ocfs.ny.gov/main/reports/cwf_12_2006.pdf [https://perma.cc/u6dv4xt3]. see also movement for family power et al., supra note 7, at 50. 139 movement for family power et al., supra note 7, 50–51. it is also important to point out that also during this time period new york became home to the first institutional providers of family defense for parents in new york city. this shift to high quality parent defense very likely was a large contributing factor to the reduction of children in new york city’s foster system. 140 new york city administration for children’s services, children* served by child welfare prevention services by home 2021] the white supremacy hydra 801 state, the family regulation system’s controlling reach over black families remains expansive.141 likewise, the family first act is likely to expand states’ control over black families. further emphasizing this point is the act’s spending flexibility, allowing state family regulation systems to move more “upstream;” or in other words, enable earlier interventions into families’ lives.142 beyond ongoing monitoring, the family first act tethers eligibility for reimbursement for prevention services to the maintenance of a “prevention plan” that identifies “the foster care prevention strategy for the child so that the child may remain safely at home . . . ;” as well as the list of services provided “to ensure the success of that prevention strategy.”143 among the services that will be more available as a result of the act are drug treatment programs and mental health services. if the act’s goals are met, and families within the family regulation system have greater access to drug treatment and mental health programs, those families may avoid state-imposed family separation. to be clear, recognizing a greater availability of services may help some families does not mean that those families necessarily pose a risk of harm to their children. nevertheless, engaging in services (regardless of the actual risk of harm to the child) can, and often borough/cd, cy 2019 (2019), https://www1.nyc.gov/assets/acs/pdf/child_welfare/2020 /childrenreceivingpreventiveservicesbycdcy2019.pdf [https://perma.cc /6x2f-v89t]. 141 warranting further research are the parallels between the expansive reach of the family regulation system by way of monitoring and supervision and the criminal legal system by way of probation and parole. according to the prison policy initiative points out that we must “understand[ ] correctional control beyond incarceration [as that] gives us a more accurate and complete picture of punishment in the united states . . . .” alexi jones, correctional control 2018: incarceration and supervision by state, prison pol’y initiative (dec. 2018), https://www.prisonpolicy.org/reports /correctionalcontrol2018.html [https://perma.cc/l4r5-437p]. she observes, “[t]outed as alternatives to incarceration, these systems often impose conditions that make it difficult for people to succeed, and therefore end up channeling people in prisons and jails.” id. similar arguments can be made about family regulation system services, which in many circumstances function to enmesh families deeper within the family regulation system, rather than allow the family to escape it. moreover, for families subject to non-court-ordered prevention services, failure to comply can lead to family court intervention, and for in-tact families subject to family court monitoring, failure to comply with service plans can lead to family separation. 142 h. comm. on ways & means, opioid hearing, supra note 75. 143 see bipartisan budget act of 2018, pub. l. no. 115-123, § 50711, 132 stat. 64 (2018). 802 colum. j. race & l. [vol. 11:767 does, mean the difference between family unity and family separation. to the extent that the act achieves less forced family separation, this will be an undoubtedly meaningful and important change. we must question, however, whether greater access to substance abuse treatment and mental health services alone connotes that the family regulation system has shifted to a system of true support from a system rooted in expansive control. it does not. instead, the family first act disguises “mandatory measures as compassionate rehabilitation” and “redefin[es] . . . coercion as compassionate pedagogy . . . .”144 sociologist allison mckim has written expansively on mandated addiction treatment. this tool is heavily relied upon by the criminal system and the family regulation system, and carries with it carceral logics and techniques.145 with respect to a mandated drug treatment program, mckim noted that although the program used “practices and therapeutic language” to conceal the program’s coercive power, it compelled compliance by using the threat of incarceration or continued forced separation from one’s child.146 dawn moore, a law and legal studies scholar, has, through the lens of drug treatment courts, challenged the rigid distinctions often drawn between care and control. moore notes that in drug treatment courts “control is eschewed as an explicitly state goal in favor of the ethic of care intended to ‘cure the offender of her addictions.”147 in this space, care and coercion go hand in hand. and though drug treatment court is framed as having “more benevolent goals, the means to achieving those goals do not sit outside a system whose impact . . . is primarily exerted through a power hierarchy that governs those who come before it.”148 similarly, where the family regulation system is the oversight apparatus for parents’ substance abuse treatment and/or mental health services, a lack of progress in treatment and relapses often serve as indictments on one’s ability to parent their child, as basis for court intervention, to remove children, 144 campbell, supra note 30, at 902. 145 see generally allison mckim, addicted to rehab: race, gender, and drugs in the era of mass incarceration (2017). 146 id. at 66. 147 dawn moore, the benevolent watch: therapeutic surveillance in drug treatment court, 15 theoretical criminology 255, 256 (2011). 148 id. at 257. 2021] the white supremacy hydra 803 and, in some cases, to terminate parental rights. those who are tasked with treating parents—e.g., counselors, case workers, therapists—serve as arms of the family regulation system. they report not only on one’s progress, but on every behavior that might assist the family regulation system worker in determining whether the parent is a fit parent. thus, a counselor—in theory the parents’ support—is also an extension of their investigator, prosecutor, and adjudicator. and as angela y. davis, poignantly observes, “[i]ncreased punishment is most often a result of increased surveillance.”149 “insight” and surveillance intrinsically become linked to control and coercion through the act. the investigator, prosecutor, and adjudicator—the case worker in this instance—determine whether a parent benefits from, and complies with, the system’s programs. activists, scholars, and advocates note that the prevention plans are determined with little more than a list of standardized services doled without any consideration of the families’ individual needs, much less their material needs.150 often, parents feel that they have no other choice but to engage in the mandated services in order to protect their familial integrity.151 unquestioning “compliance” with family regulation system monitoring, and prevention plans, is most often the paramount concern. thus, eliminating the parent’s selfdetermination and autonomy within the state’s treatment plan. 149 angela y. davis, abolition democracy: beyond empire, prisons, and torture 29 (2005); see also moore supra note 147, at 263 (observing that in drug treatment court, “the more contact, the more surveillance, the more chances [a person] will be observed making mistakes and thus more opportunities for punishment as part of [their] treatment”). 150 see e.g., roberts, shattered bonds, supra note 3, at 79–81 (observing that child services service plans generally bear little resemblance to a family’s needs, and were often, rather a checklist of requirements parents had to complete in order reunite with their children); burrell, supra note 135, at 138– 139; emma ketteringham, live in a poor neighborhood? better be a perfect parent., n.y. times (aug. 22, 2017), https://www.nytimes.com /2017/08/22/opinion/poor-neighborhoods-black-parents-child-services.html [https://perma.cc/s22v-hw93]; emma s. ketteringham et al., supra note 52, at 95; annett ruth appell, virtual mothers and the meaning of parenthood, 34 u. mich. j. l. reform 683, 775 (2001), https://repository.law.umich.edu /cgi/viewcontent.cgi?article=1458&context=mjlr [https://perma.cc/9fbd-fn35] (noting the routine failure of child service agencies to provide “meaningful and sufficient services to support or reunify the families”); appell, supra note 56, at 597–599; 151 see movement for family power et al., supra note 7, at 30, 95– 97. 804 colum. j. race & l. [vol. 11:767 as roberts observes, “[c]ompliance overshadows the child’s needs or parent’s ability to care for the child or even the truth of the original charges of maltreatment.”152 thus, the family’s fate— how long the family will be in the family regulation system’s gaze, whether the family will be subject to court intervention, whether the family will be forcibly separated, and whether and when they will reunify—rests on whether the parent completed their class, attended treatment sessions, or submitted to evaluations and drug screens.153 the same is likely to be true under the family first act for two reasons. first, the act only authorizes reimbursement for children identified by state family regulation agencies as being “at imminent risk of entering foster care;” yet such children can remain safely at home with forced participation in prevention services.154 and second, nothing in the act eliminates removal to the foster system as a response for resistance to, and non-compliance with, family regulation system control. c. the family first act exists in an ecosystem of punishment finally, as noted above, the family first act, like preceding policy, utilizes coercion to engender compliance. underpinning this coercion is the state’s power to forcibly separate children from their parents. to be clear, the act does not remove this coercive power. as such, whereas asfa and preceding policy relied on the immediate removal of children to the foster system to compel compliance, the family first act forces compliance with the ever present threat of removal to the foster system. asfa, moreover, and its adoption imperative still remain firmly in place. it serves as an implicit reminder that failure to modify behavior and remedy perceived parental “deficits” through the act’s prevention interventions can still lead to removal to the foster system, termination of parental rights, and fast-tracked adoptions. in fact, the family first act reauthorizes the adoption and guardianship incentives program ushered in by the preventing sex trafficking and strengthening families act 152 roberts, shattered bonds, supra note 3, at 80. 153 id.; see also movement for family power et al., supra note 7, at 75 (noting, “[a] single positive drug test after a period of abstinence could topple the progress of a case, resulting in the removal of a child from a home . . . .”). 154 see first focus campaign for children, supra note 74, at 1; bipartisan budget act of 2018, pub. l. no. 115-123, 132 stat. 64 (2018). 2021] the white supremacy hydra 805 of 2014, which created financial incentives for states to increase the adoption and guardianship of children, in particular older children, in the foster system.155 specifically, the act authorizes $43 million for the program.156 the act also designates “[s]upporting and [r]etaining foster families” as a “[f]amily [s]upport [s]ervice,” and makes available to states $8 million in competitive grants “to support . . . the recruitment and retention of high-quality foster families to increase their capacity to place more children in [foster] family settings . . . .”157 clear from the family first act’s provisions, and recent statements from some of the allegedly more liberal children’s bureau leaders, is the firm belief that there will always be a need for a foster system.158 thus, the act does not remove punishment as a pillar on which the family regulation system rests. rather, under the act, punishment by way of removal to the foster system, termination of parental rights, and adoption—all with varying financial incentives—continues to be available to state family regulation agencies. v. recommendations having identified how the family first act maintains the family regulation system’s core pillars—pathology, expansive control, and punishment—the question remains, what do we do 155 children’s defense fund et al., supra note 131. 156 mary boo, the family first prevention services act becomes law, n. am. council on adoptable child., https://www.nacac.org/resource/familyfirst-prevention-services-act-becomes-law/ [https://perma.cc/3my7-s8u6]. (last visited mar. 19, 2021). 157 bipartisan budget act of 2018 § 50751. 158 david kelly & jerry milner, high-quality legal representation is critical to creating a better child welfare system, a.b.a. (july 17, 2019), https://www.americanbar.org/groups/public_interest/child_law/resources/child_ law_practiceonline/january---december-2019/high-quality-legal-representationis-critical-to-creating-a-bett/ [https://perma.cc/dyb3-yrez] (noting the historic and current failing of the family regulation system, yet simultaneously affirming that “there will likely always be a need for child protective services and for foster care . . . .”); daniel heimpel, in era of family separation, a top administration official vows to fight the practice in child welfare, imprint (apr. 17, 2019, 4:01 am), https://imprintnews.org/politics/in-era-of-family-separation-a-topadministration-official-vows-to-fight-the-practice-in-child-welfare/34573 [https://perma.cc/x4ak-cuvv] (quoting david kelly, special assistant to children’s bureau associate commissioner, “[w]e’re not asking you to engage in magical thinking. we know that foster care will likely always be necessary, but we’re absolutely convinced — absolutely convinced — that it can be dramatically lessened.”). 806 colum. j. race & l. [vol. 11:767 with the family regulation system? i humbly, and emphatically, echo the calls of families impacted by the system, activists, agitators, community organizations, advocates, and scholars to abolish the family regulation system. there is no reforming a system that stems from antiblack racism, classism, ableism, and patriarchy. there is no reforming a system that serves as a tool to uphold white supremacy. yet, the family regulation system was neither erected in a day, nor will it be dismantled in a day. while progress toward abolition may at times be incremental, “[a]bolitionist steps are about gaining ground in the constant effort to radically transform society . . . ,” and “chipping away at oppressive institutions rather than helping them live longer.”159 as rachel herzing explains, “[m]aking incremental changes to the systems, institutions and practices that maintain systemic oppression and differentially target marginalized communities is essential to shifting power.”160 guiding our imagination and struggle toward abolition should be the abolitionist principles developed by prison industrial complex (pic) abolitionist movement leaders, organizers, and strategists. adapted to the family regulation system context, i suggest we use the following guiding questions, developed by survived and punished new york: 1. does the reform (as a whole or in part) legitimize or expand the policing system we are trying to dismantle? 2. does the reform benefit parts of the family regulation system, industries that profit from the family regulation system, or elected officials who sustain the family regulation system? 3. do the effects the reform creates already exist in a way we have to organize against? will we, or others, be organizing to undo its effects in five years? 159 critical resistance, abolitionist steps, in the abolitionist toolkit 48, 48 (2004), http://criticalresistance.org/wp-content/uploads/2012/06 /ab-toolkit-part-6.pdf [https://perma.cc/tgb6-kuts]. 160 rachel herzing, big dreams and bold steps toward a police-free future, truthout (sept. 16, 2015), https://truthout.org/articles/big-dreamsand-bold-steps-toward-a-police-free-future [https://perma.cc/58rn-8sqc]. 2021] the white supremacy hydra 807 4. does the reform preserve existing power relations? who makes decisions about how it will be implemented and enforced? 5. does the reform create a division between “deserving” and “undeserving” people? 6. does the reform undermine efforts to organize and mobilize the most affected for ongoing struggle? or does the reform help us build power?161 with this framework, we are more likely to avoid the pitfalls of non-reformist-reforms,162 and steer a clearer course toward abolishing the family regulation system. and, because abolition demands not only dismantling, abolition requires our work to also include imagining and building true systems of community-based and communitydefined support. i do not have the answer—nor do i think any one person should—to the question: what do we build in place of the family regulation system; or rather, the better question: how do we respond to, prevent, and heal harm within communities without causing more harm? my thinking on this question, however, is shaped by prison abolitionist activist, organizer, educator, and curator mariame kaba who explains that it is imperative to “transform the relationships that we have with each other so we can really create new forms of safety and justice 161 these guiding questions, developed by survived and punished ny, are in turn drawn from the thought leadership of abolitionist organizers and strategists including but not limited to, mariame kaba, erica meiners, dean spade, peter gelderloos, movement 4 black lives and law 4 black lives. survived and punished new york, preserving punishment power: a grassroots abolitionist assessment of new york reforms 3 (2020), https://www.survivedandpunishedny.org/wp-content/uploads/2020/04/sppreserving-punishment-power-report.pdf [https://perma.cc/9htl-26g5]. 162 a non-reformist-reform is a term coined by andre gorz and lifted up and expanded upon by ruth wilson gilmore, mean “measures that reduce the power of an oppressive system while illuminating the system’s inability to solve the crises it creates.” dan berger et al., what abolitionists do, jacobin (aug. 24, 2017), https://www.jacobinmag.com/2017/08/prison-abolition-reform-massincarceration [https://perma.cc/6733-8vpc]. see also mariame kaba & john duda, towards the horizon of abolition: a conversation with mariame kaba, next sys. project (nov. 9, 2017), https://thenextsystem.org/learn/stories /towards-horizon-abolition-conversation-mariame-kaba [https://perma.cc/tpl8ftel]. 808 colum. j. race & l. [vol. 11:767 in our communities.”163 radical black abolitionist activists, organizers, groups, and networks have long been doing, and continue to do, this work of visioning, demanding, and building a society without policing systems.164 these visions lift up, and center, the need to transform the conditions that lead to harm— including demanding access to affordable housing, living wage employment, health care, education, and “universal, quality, and accessible childcare.”165 additionally, examining mutual aid work—which has long existed within the abolition movement,166 but which has become more visible during the covid-19 pandemic and economic collapse—has been instructive. legal scholar dean spade explains, mutual aid is “work to meet each other’s survival needs that’s based in a shared understanding that the systems we live under aren’t gonna meet them and are actually causing the crises.”167 mutual aid, meets immediate needs, builds movements and solidarity, and function as spaces “where we practice the world we’re trying to live in.”168 fundamentally, i believe that our rebuilding must be rooted in care and support that rejects rugged individualism and the stigmatization of interdependence, vulnerability, and need. 163 kaba & duda, supra note 162. see also we be imagining podcast, supra note 132. 164 see vision for black lives, m4bl, https://m4bl.org/policy-platforms/ [https://perma.cc/z55m-y5s5] (last visited mar. 18, 2021). see also end the war on black women, m4bl, https://m4bl.org/policy-platforms/end-the-war-blackwomen/ [https://perma.cc/bf27-8s6f] (last visited mar. 18, 2021). 165 end the war on black women, supra note 164; see also end the war on black communities, m4bl, https://m4bl.org/policy-platforms/end-thewar-on-black-communities/ [https://perma.cc/4bem-arw2] (last visited mar. 18, 2021). 166 one of the most famous mutual aid projects in the united states is the black panther party’s survival programs, including its health care clinics in the community and free breakfast program. see darryl robertson, a conversation with prof. alondra nelson on the black panther party’s fight for health care, medium (apr. 22, 2020), https://darrylrobertson3491.medium.com/a-conversation-with-prof-alondranelson-on-the-black-panther-partys-fight-for-health-care-126caedaf894 [perma.cc/57c5-8tq9]. see also dean spade, mutual aid is essential to our survival regardless of who is in the white house, truthout (oct. 27, 2020), https://truthout.org/articles/mutual-aid-is-essential-to-our-survival-regardlessof-who-is-in-the-white-house/ [https://perma.cc/xea4-48g4]. 167 barnard ctr. for rsch. on women, we keep each other safe: mutual aid for survival and solidarity 3 (2020), http://bcrw.barnard.edu/wp-content/uploads/2021/02/we-keep-each-other-safetranscript.pdf [https://perma.cc/kf4w-hh5u]. 168 id. 2021] the white supremacy hydra 809 finally, and most importantly, kaba reminds us that “[t]he work of abolition insists that we foreground the people who are behind the walls—that we listen to them, that we take their ideas seriously.”169 similarly, the work of abolishing the family regulation system must be centered on, and guided by, the families and communities that are caught up in it, resist it, and survive its violence and control. vi. conclusion enacted only in 2018, it is too early to tell precisely the impact the family first act will have on families enmeshed in the family regulation system. what is clear, however, is that the family regulation system is a policing system designed to uphold and further white supremacy. what is also clear is that the act is, at its core, a continuation of prior federal family regulation policy. the ideologies and techniques that drove the modern foster system prior to the act—pathology, expansive control, and punishment—are the very same ideologies and techniques that drive the act. from its myopic focus on parental behavior and “deficits;” to the omission of structural factors that produce inequality; to the continued surveillance of families in the system; and to the state’s power of forcing compliance and exercise expansive control, the family first act reflects yet another federal family regulation policy recalibration undertaken to ensure the system’s survival. given this reality, we must do what the family first act does not. guided by pic abolitionist principles, we must disrupt, dismantle, and ultimately abolish the family regulation system. only then can we and build its place community-based structures that center dignity, self-determination, care, and support. 169 kaba & duda, supra note 162. 810 colum. j. race & l. [vol. 11:767 microsoft word patel racially motivated spying pretext 01.28.2021 (nqg final edit).docx columbia journal of race and law forum vol. 11 february 2021 no. 1 comment racially motivated spying pretext: challenging the fbi’s new regime of racialized surveillance vinay patel* this comment critiques the federal bureau of investigation’s (fbi) surveillance policies against black activism following changes in the fbi’s threat terminology from “black identity extremism” (bie) in 2017 to “racially motivated violent extremism” (rmve) in 2020. rmve is a facially race-neutral category that includes both black activists protesting racist violence and white supremacists who commit it. this change allowed the fbi to escape criticism of the bie designation; however, the fbi’s narrative that black activism is dangerous persists, and its surveillance power over black activists has only increased. to justify this move, the fbi has engaged in the novel practice of “counter-profiling.” this entails grouping white supremacists and black activists, then citing the rising threat of white supremacist violence to justify increased surveillance of all rmves, including black activists—even though there is no reliable evidence of a violent extremist threat from black activism. these fbi practices perpetuate a long history of racialized surveillance violating the fourteenth amendment because they demonstrate a racially discriminatory intent and use a racial classification that cannot survive strict scrutiny. * managing articles editor, columbia journal of race and law, volume 11. j.d. candidate, columbia law school, 2021. the author would like to thank professor kimberlé crenshaw for sharing her extensive knowledge to guide and develop this piece, as well as the columbia journal of race and law staff, especially joella adia jones, michaela bolden, jacob elkin, and nicolás galván, for their support and input throughout the writing and editing process. 2 colum. j. race & l. f. [vol. 11:1 i. introduction .............................................................................. 3 ii. origins and practices of contemporary anti-black surveillance .............................................................................. 5 a. the civil rights movement, cointelpro, and contemporary surveillance ............................................. 6 b. deconstructing racially motivated violent extremism ...................................................................... 11 iii. counter-profiling: a novel surveillance justification ....... 16 iv. fbi surveillance of black activists violates the equal protection clause ................................................................... 21 a. the 2020 guidance demonstrates a racially discriminatory intent .................................................... 21 b. the 2020 guidance invokes a suspect classification and fails strict scrutiny ............................................... 24 1. rmve terminology is a racial classification ..... 25 2. the 2020 guidance is not narrowly tailored to promote national security ................................ 27 3. a consistency requirement to review guidance targeting white supremacy extremism under strict scrutiny is inappropriate ........................... 29 v. conclusion .............................................................................. 30 2021] racially motivated spying pretext 3 i. introduction on october 6, 2017, foreign policy magazine reported on a leaked federal bureau of investigation (fbi) intelligence assessment, issued on august 3, 2017, that said the fbi had begun tracking “black identity extremists” (bies), whom the fbi claimed were a new and deadly threat to law enforcement nationwide.1 the assessment described black identity extremism (bie) as an ideologically-driven movement promoting lethal violence against law enforcement in response to “perceptions of police brutality against african americans.”2 the assessment was widely criticized by civil rights activists and lawmakers who decried it as an attempt to obstruct the current movement for racial justice by disrupting and surveilling black activists under the false pretense of a poorly-defined threat—a reboot of the fbi’s infamous actions during the civil rights movement through the counterintelligence program (cointelpro).3 on july 23, 2019, fbi director christopher wray testified before the senate judiciary committee that the fbi had abandoned the term “black identity extremist” and had reconceptualized its goal as stopping violence from “racially motivated violent extremists” (rmves), rather than investigating ideologies.4 the new rmve category subsumed two of the fbi’s previous threat designations—bies and white supremacy extremists (wses).5 weeks later, online media 1 jana winter & sharon weinberger, the fbi’s new u.s. terrorist threat: ‘black identity extremists’, foreign pol’y (oct. 6, 2017, 11:42 am), https://foreignpolicy.com/2017/10/06/the-fbi-has-identified-a-new-domesticterrorist-threat-and-its-black-identity-extremists/ [https://perma.cc/v8wpkq2l]; counterterrorism div., fed. bureau investigation, intelligence assessment: black identity extremists likely motivated to target law enforcement officers 1 (2017) [hereinafter 2017 assessment], http://assets.documentcloud.org/documents/4067711/bie-redacted.pdf [https://perma.cc/2qdr-e4fu]. 2 2017 assessment, supra note 1, at 2. 3 alice speri, the strange tale of the fbi’s fictional “black identity extremism” movement, intercept (mar. 23, 2019, 8:31 am) [hereinafter, speri, the strange tale], https://theintercept.com/2019/03/23/black-identity-extremistfbi-domestic-terrorism/ [https://perma.cc/dwt9-2m7f]. 4 byron tau, fbi abandons use of term ‘black identity extremism’, wall st. j., https://www.wsj.com/articles/fbi-abandons-use-of-terms-blackidentity-extremism-11563921355 [https://perma.cc/9p8g-kdzr] (july 23, 2019, 10:33 pm). 5 id.; counterterrorism div., fed. bureau investigation, fbi strategy guide fy2018–20 and threat guidance for racial extremists 17 (2018) [hereinafter 2018–20 guidance], https://www.scribd.com/document/421166393/fbi-strategy-guide-fy2018-20and-threat-guidance-for-racial-extremists [https://perma.cc/7yga-4qcf]. 4 colum. j. race & l. f. [vol. 11:1 outlet the young turks released leaked fbi documents including the fbi’s threat guidance for fiscal years 2018–2020 for different forms of racial violence, showing the evolution of the fbi’s threat terminology from bies and wses in 2018 to rmves in 2020.6 however, although the terms change for each year of the 2018–20 guidance, the threat descriptions for each year fully incorporate the 2017 assessment’s definition of bie.7 thus, the term rmve relies on the same racialized understandings of threats used in the 2017 assessment and during the civil rights movement.8 under the guise of race neutrality, the 2020 guidance gives the fbi even more power to aggressively surveil and target black people who are perceived to be active in, or sympathetic to, racial justice movements, and the fbi’s suspicions are often based on race alone.9 this comment critiques the fbi’s use of the “alleged bie threat”10 in the 2017 assessment and 2018–20 guidance. part ii 6 2018–20 guidance, supra note 5, at 4, 8, 12, 17; ken klippenstein, leaked fbi documents reveal bureau’s priorities under trump, young turks (aug. 8, 2019), https://tyt.com/stories/4vzlchuqrye4ukagy0oyma/mnzakmp dtiz7acyld5crr [https://perma.cc/px8v-h9jf]. the documents collectively are referred to as the “2018–20 guidance,” but the documents within the 2018–20 guidance for a specific year are referred to as the “2018 guidance,” “2019 guidance,” or “2020 guidance.” 7 klippenstein, supra note 6; 2017 assessment, supra note 1, at 2 n.b; 2018–20 guidance, supra note 5, at 4, 12, 17. the 2017 assessment states: the fbi defines black identity extremists as individuals who seek, wholly or in part, through unlawful acts of force or violence, in response to perceived racism and injustice in american society and some do so in furtherance of establishing a separate black homeland or autonomous black social institutions, communities, or governing organizations within the united states. this desire for physical or psychological separation is typically based on either a religious or political belief system, which is sometimes formed around or includes a belief in racial superiority or supremacy. 2017 assessment, supra note 1, at 2 n.b. nearly all of this exact language is found throughout the 2018–20 guidance. 2018–20 guidance, supra note 5, at 4, 12, 17. 8 klippenstein, supra note 6. 9 2018–20 guidance, supra note 5, at 20. the population of potential black targets of fbi surveillance will be referred to as “black activists” as shorthand in this comment, but any black person suspected of being active or sympathetic to racial justice movement may be targeted. see andrew cohen, the fbi’s new fantasy: ‘black identity extremists’, brennan ctr. for just. (oct. 11, 2017), https://www.brennancenter.org/our-work/analysis-opinion/fbis-newfantasy-black-identity-extremists [https://perma.cc/sxx3-nvgc]. 10 in this comment, “alleged bie threat” refers to the alleged threat which the fbi named bie, black racially motivated extremism (brme), and rmve (insofar as it covers black targets), and “alleged bies” refers to those accused or treated as being part of this threat; “wse threat” refers to the threat which the fbi named wse, white racially motivated extremism (wrme), and 2021] racially motivated spying pretext 5 provides background on the fbi’s past and present surveillance tactics against civil rights activists and describes the flaws in the fbi’s narrative of the alleged bie threat. part iii identifies a novel justification for surveillance adopted by the 2020 guidance, which this comment calls “counter-profiling,” where one group is more likely to commit a certain crime, but rather than focus on that specific group, law enforcement generalizes the threat as a pretense to target others who do not fit the profile. part iv presents an equal protection clause challenge to current fbi surveillance practices used against black activists, examining both the fbi’s invidious racial intent and its use of suspect classifications.11 in sum, this comment argues that the dedication of resources to the alleged bie threat is irrational, the race-neutrality of the rmve category is a sinister façade, and the fbi is engaged in racialized surveillance which violates the constitution. ii. origins and practices of contemporary anti-black surveillance the history of anti-black surveillance in the united states can be traced back to slavery. overseers, patrols, police enforcing black codes, and white civilians deputized to capture those escaping slavery or challenging the racial order all engaged in surveillance of free and enslaved black people to maintain white supremacy.12 the fbi’s invention of and response to the alleged bie threat reinforces america’s long history of racial control, albeit through new surveillance technologies.13 to rmve (insofar as it covers white targets). this comment rejects the fbi’s assessment that a bie threat exists, so it refers to this threat as only an “alleged” threat; however, this comment agrees that the wse threat is real, so the word “alleged” is not needed here. see discussion infra part ii.b & iv.b.3. 11 u.s. const. amend. xiv. 12 victor e. kappeler, a brief history of slavery and the origins of american policing, e. ky. u. police stud. online (jan. 7, 2014), https://plsonline.eku.edu/insidelook/brief-history-slavery-and-origins-americanpolicing [https://perma.cc/x6zx-t8qf]; stacey patton, trust has never existed between cops and black communities, dame mag. (oct. 4, 2016), https://www.damemagazine.com/2016/10/04/trust-has-never-existed-betweencops-and-black-communities/ [https://perma.cc/e3s7-el32]; claudia garcia-rojas, the surveillance of blackness: from the trans-atlantic slave trade to contemporary surveillance technologies, truthout (mar. 3, 2016), https://truthout.org/articles/the-surveillance-of-blackness-from-the-slave-tradeto-the-police/ [https://perma.cc/57jm-7uh8] (interview with simone browne, professor of african and african diaspora studies, university of texas at austin). 13 mohamed hamaludin, “black identity extremist” label just another excuse to silence activists, s. fla. times (mar. 30, 2018), 6 colum. j. race & l. f. [vol. 11:1 illustrate the danger that this surveillance poses to black activists and the context for a constitutional challenge, this section considers two questions. first, how does the fbi engage in racialized surveillance? second, what is the threat that the fbi claims to address? a. the civil rights movement, cointelpro, and contemporary surveillance the fbi’s cointelpro became the archetype for a modern surveillance state that systematically works against black activists to quell dissent. from 1956 to 1971, cointelpro operated “to expose, disrupt, misdirect, discredit, or otherwise neutralize the activities of” civil rights groups using tactics such as wiretaps, blackmail, spreading disinformation, raiding offices and homes, fabrication of evidence and perjury at trials, vandalism, and both inciting and directly committing violence against its targets.14 prominent targets included dr. martin luther king jr., kwame ture, the black panther party (bpp), the nation of islam, the national association for the advancement of colored people, and many others.15 despite being explicitly non-violent, dr. king was treated as the greatest threat to the country because the fbi viewed him as a potential messianic figure who could unite civil rights groups, and the fbi worried that “[i]n unity there is strength.”16 consequently, the fbi subjected dr. http://www.sfltimes.com/opinion/black-identity-extremist-label-just-anotherexcuse-to-silence-activists [https://perma.cc/vn8q-5l4b] (drawing a line through slavery, segregation, and anti-black violence by police and civilians, to fbi surveillance of alleged bies as “a new way to legally curtail the freedom of african americans,” and “yet another effort at race control.”). 14 joshua d. rothman, the security state, cointelpro, and black lives matter, we’re hist., (aug. 31, 2015), http://werehistory.org/cointelpro/ [https://perma.cc/38hz-z4jw]; final report, s. rep. no. 94-755, vol. ii, intelligence activities and the rights of americans, 10–13 (1976) [hereinafter church committee report vol. ii]; final report, s. rep. no. 94-755, vol. iii, supplementary detailed staff reports on intelligence activities and the rights of americans, 223, 824 (1976) [hereinafter church committee report vol. iii]. 15 see church committee report, vol. ii, supra note 14 (detailing the extensive surveillance against these civil rights leaders and many more individuals and organizations). kwame ture was formerly known as stokely carmichael which is how the church committee report refers to him. karen grigsby bates, stokely carmichael, a philosopher behind the black power movement, nat’l pub. radio (mar. 10, 2014, 10:11 am), https://www.npr.org/sections/codeswitch/2014/03/10/287320160/stokelycarmichael-a-philosopher-behind-the-black-power-movement [https://perma.cc/2xdn-kl2k]. 16 j. edgar hoover, the fbi sets goals for cointelpro, soc. hist. for every classroom, https://herb.ashp.cuny.edu/items/show/814 2021] racially motivated spying pretext 7 king to photographic and physical surveillance,17 bugged his hotel rooms, used the products of its surveillance to try to destroy his marriage, and sent “anonymous letters attempting to ‘blackmail him into suicide.’”18 the fbi also made the bpp a major target, subjecting the group to infiltration by informants and encouraging internal discord, violence, and conflicts with outside groups.19 additionally, the fbi organized and conducted raids on the bpp in partnership with local police departments— in one such raid, the police killed fred hampton in what many argue was a targeted assassination.20 in 1971, the fbi terminated cointelpro after activists broke into an fbi office and leaked incriminating documents to the press, leading to public outcry against the program.21 in 1975, congress formed the church committee, which detailed and condemned the fbi’s pervasive racist and [https://perma.cc/pw2e-whh8] (last visited nov. 10, 2020) (listing as a goal for cointelpro to “[p]revent the rise of a ‘messiah’ who could unify, and electrify, the militant black nationalist movement,” and further noting that dr. king “could be a very real contender for this position should he abandon his supposed ‘obedience’ to ‘white, liberal doctrines’ (nonviolence) and embrace black nationalism.”) 17 see raymond p. siljander & darin d. fredrickson, fundamentals of physical surveillance 3 (3d ed. 2016) (“physical surveillance is the direct visual observation of a person, object, activity, or location while remaining undetected.”). 18 church committee report, vol. ii, supra note 14, at 10–11; dia kayyali, the history of surveillance and the black community, elec. freedom found. (feb. 13, 2014), https://www.eff.org/deeplinks/2014/02/historysurveillance-and-black-community [https://perma.cc/rfj6-pb4l]; gillian brockell, ‘irresponsible’: historians attack david garrow’s mlk allegations, wash. post (may 30, 2019, 12:58 pm), https://www.washingtonpost.com/history/2019/05/30/irresponsible-historiansattack-david-garrows-mlk-allegations/ [https://perma.cc/sf7x-qlds] (the fbi sent a letter disparaging dr. king as a fraud as well as recordings which allegedly proved his infidelity and threatened that he would be exposed if he did not commit suicide). 19 kayyali, supra note 18 (“the fbi also specifically targeted the black panther party with the intention of destroying it. they infiltrated the party with informants . . . . agents sent anonymous letters encouraging violence between street gangs and the panthers in various cities, which resulted in ‘the killings of four bpp members and numerous beatings and shootings,’ as well as letters sowing internal dissension in the panther party.”) (citing church committee report vol. iii, supra note 14, at 188). 20 id.; church committee report vol. iii, supra note 14, at 223; chip gibbons, defending rts. & dissent, still spying on dissent: the enduring problem of fbi first amendment abuse 18 (2019). 21 rothman, supra note 14; mark mazzetti, burglars who took on f.b.i. abandon shadows, n.y. times (jan. 7, 2014), https://www.nytimes.com/2014/01/07/us/burglars-who-took-on-fbi-abandonshadows.html [https://perma.cc/y37k-q3fm]. 8 colum. j. race & l. f. [vol. 11:1 illegal practices.22 former fbi director james comey referred to cointelpro as “shameful” and “a dark chapter in the bureau’s history.”23 director wray claimed it was “something we’ve learned from.”24 however, the current surveillance threat to black activists substantially echoes cointelpro, with added danger from advanced surveillance technology. the fbi’s contemporary surveillance of the alleged bie threat is part of a strategy that the agency refers to in the 2018 guidance as “iron fist.”25 the fbi’s stated goal for this surveillance is to gain information about bie facilitators, recruiters, motivations, tactics, structure, training, and membership to mitigate the perceived threat.26 while the specific details of iron fist are not public, available information suggests that the fbi is engaging in a mix of old and new surveillance practices in response to the alleged bie threat.27 following the church committee’s reports on cointelpro, then-attorney general edward levy issued new guidelines for domestic fbi operations to reduce abuses, but subsequent attorneys general have significantly weakened the guidelines by permitting lower thresholds to open and continue investigations and less justification to use intrusive tactics.28 the 22 rothman, supra note 14; mazzetti, supra note 21. 23 jeanne theoharis, comey says fbi’s surveillance of mlk was “shameful”—but comey’s fbi targeted black activists and muslim communities anyway, intercept (apr. 24, 2018, 4:10 pm), https://theintercept.com/2018/04/24/james-comey-mlk-martin-luther-kingsurveillance-muslims/ [https://perma.cc/3rrg-zgf8]. 24 speri, the strange tale, supra note 3. 25 2018–20 guidance, supra note 5, at 4. the fbi also had a strategy called “supreme rendition” to address the wse threat in 2018. id. at 8. presumably, both iron fist and supreme rendition have been folded into the fbi strategy to address rmves. 26 id. at 4. 27 id.; alice speri, the fbi spends a lot of time spying on black americans, intercept (oct. 29, 2019, 10:07 am) [hereinafter speri, fbi spying], https://theintercept.com/2019/10/29/fbi-surveillance-black-activists/ [https://perma.cc/627g-fhtd]; amna toor, note, “our identity is often what’s triggering surveillance”: how government surveillance of #blacklivesmatter violates the first amendment freedom of association, 44 rutgers comput. & tech. l.j. 286, 299–301 (2018). see nusrat choudhury & malkia cyril, the fbi won’t hand over its surveillance records on ‘black identity extremists,’ so we’re suing, am. civ. liberties union (mar. 21, 2019, 12:45 pm), https://www.aclu.org/blog/racial-justice/race-and-criminal-justice/fbi-wonthand-over-its-surveillance-records-black [https://perma.cc/2nrl-pxrh] (aclu and mediajustice are suing the fbi for freedom of information act (foia) violations over a foia request on surveillance of alleged bies). 28 gibbons, supra note 20, at 23; emily berman, brennan ctr. for just., domestic intelligence: new powers, new risks 13–19 (jan. 18, 2011), https://www.brennancenter.org/sites/default/files/20192021] racially motivated spying pretext 9 fbi continues to use informants to infiltrate black activist groups and coordinates with local police, just as it did during cointelpro.29 the department of homeland security (dhs) has also become involved through joint terrorism task forces and fusion centers, which operate mostly in secrecy and have been known to surveil black lives matter (blm) protests.30 new tools have exacerbated the surveillance problem. in 2008, the fbi gained the power to open “assessments” of individuals to begin intrusive surveillance—assessments do not need to be predicated on any factual basis or evidence of a threat and can be renewed an unlimited number of times.31 the 2018– 20 guidance explicitly demands the use of these assessments, which permit physical surveillance and the use of informants.32 social media analysis has created a new avenue for information collection, and fbi documents explicitly state that fbi agents will proactively search social media and online news.33 while social media has played a major role in promoting blm and black activism nationwide, it has also given the fbi a powerful tool for surveillance, disruption, and harassment of black activists.34 law enforcement’s response to 2020’s racial justice protests has shown the fbi’s surveillance power in action. 08/report_domestic_intelligence_powers_risks.pdf [https://perma.cc/fp4fbqtm]. 29 2018–20 guidance, supra note 5, at 4, 19; speri, fbi spying, supra note 27; chris brooks, after barr ordered fbi to “identify criminal organizers,” activists were intimidated at home and at work, intercept (june 12, 2020, 6:00 am), https://theintercept.com/2020/06/12/fbi-jttf-protests-activistscookeville-tennessee/ [https://perma.cc/dj8q-8s82]. 30 toor, supra note 27, at 300; fusion centers, dept. homeland sec., https://www.dhs.gov/fusion-centers [https://perma.cc/dj7t-cj2j] (sept. 19, 2019); lee fang, why was an fbi joint terrorism task force tracking a black lives matter protest?, intercept (mar. 12, 2015, 7:12 pm), https://theintercept.com/2015/03/12/fbi-appeared-use-informant-track-blacklives-matter-protest/ [https://perma.cc/3rdb-6z4u]. 31 speri, fbi spying, supra note 27; michael german & emily hockett, standards for opening an fbi investigation so low they make the statistic meaningless, just sec. (may 2, 2017), https://www.justsecurity.org/40451/stan dards-opening-fbi-investigation-statistic-meaningless/ [https://perma.cc/23s2zep6]. 32 speri, fbi spying, supra note 27; 2018–20 guidance, supra note 5, at 5, 14, 19. 33 toor, supra note 27, at 299; 2017 assessment, supra note 1, at 3; 2018–20 guidance, supra note 5, at 19. 34 monica anderson et al., activism in the social media age, pew res. ctr. (july 11, 2018), https://www.pewresearch.org/internet/2018/07/11/activis m-in-the-social-media-age/ [perma.cc/6pjl-a2fa] (describing the importance of social media for activism on racial justice by providing a platform for people to express their experiences, raise awareness, and organize actions). 10 colum. j. race & l. f. [vol. 11:1 organizers have faced police intimidation at their homes and workplaces.35 the fbi and local police have used facial recognition, advanced drones, “automated license plate readers[,] and stingrays,” which “collect call, text, browsing and location data from phones.”36 in one case, the fbi saw aerial footage of a protestor, searched for her in videos on instagram and vimeo, found where she bought her shirt on etsy, looked for the linkedin profile of a customer who reviewed the shirt, and identified that it was the same protestor based on a visible tattoo—she was subsequently charged with felony arson and faces up to ten years in prison.37 the surveillance apparatus of the fbi has never been more powerful. ironically, but not unsurprisingly, the capitol insurrection on january 6, led by white supremacists and other far-right extremists, is being used as a justification to ramp up anti-protest laws across several states.38 these laws are poised to be more heavily enforced against black activists protesting racial injustice than wses—who police have been reluctant to restrain, as the country witnessed during the capitol 35 brooks, supra note 29. 36 corinne reichert, house dems demand fbi, others stop spying on black lives matter protests, cnet (june 9, 2020, 4:18 pm), https://www.cnet.com/news/house-dems-ask-fbi-others-to-stop-spying-on-blacklives-matter-protesters/ [https://perma.cc/ma33-wzfg]. see also brooks, supra note 29; katie schoolov, as protests over the killing of george floyd continue, here’s how police use powerful surveillance tech to track them, cnbc, https://www.cnbc.com/2020/06/18/heres-how-police-use-powerful-surveillancetech-to-track-protestors.html [https://perma.cc/275n-a6ed] (june 18, 2020, 8:46 am); peter aldhous, the fbi used its most advanced spy plane to watch black lives matter protests, buzzfeed news (june 20, 2020, 10:35 am), https://www.buzzfeednews.com/article/peteraldhous/fbi-surveillance-planeblack-lives-matter-dc [https://perma.cc/66pg-3hlq]. 37 rudy chinchilla, instagram, etsy sale, tattoo: how fbi found woman accused of torching ppd cars, nbc phila., https://www.nbcphiladelphia.com/news/local/instagram-etsy-sale-tattoo-howfbi-found-woman-accused-of-torching-ppd-cars/2436832/ [https://perma.cc/5vzl-f537] (june 17, 2020, 5:27 pm). 38 alleen brown & akela lacy, state legislatures make “unprecedented” push on anti-protest bills, intercept (jan. 21, 2021, 12:16 pm) [hereinafter brown & lacy, state legislatures], https://theintercept.com/2021/01/21/anti-protest-riot-state-laws/ [https://perma.cc/w52w-xsbl]; alleen brown & akela lacy, in wake of capitol riot, gop legislatures “rebrand” old anti-blm protest laws, intercept (jan. 12, 2021, 4:14 pm) [hereinafter brown & lacy, rebrand], https://theintercept.com/2021/01/12/capitol-riot-anti-protest-blm-laws/ [https://perma.cc/bd9l-xml2]; meg o’connor, republican lawmakers are using the capitol riot to fuel anti-blm backlash, appeal (jan. 19, 2021), https://theappeal.org/capitol-insurrection-anti-black-lives-matter-legislation/ [https://perma.cc/d4py-guab]. 2021] racially motivated spying pretext 11 insurrection itself.39 in fact, many of the bills being pushed now are rebranded versions of bills that were written and promoted in response to the racial justice protests during the summer of 2020.40 several laws already exist to hold those like the capitol insurrectionists accountable, but rather than enforce those laws against wses, states are working to increase the number of tools available to state and federal officers to criminalize black activism.41 b. deconstructing racially motivated violent extremism when questioned by congress, both the fbi and the department of justice have failed to clearly explain what bie actually is, despite their confidence that it is a major threat.42 at best, this failure suggests that the threat is vaguely defined and poorly understood by those directing the fbi surveillance apparatus. at worst, it suggests the threat is intentionally opaque to hide nefarious racialized surveillance and policing practices which criminalize black activism and endanger black lives. the shift to bie terminology demonstrates the fbi’s broadening narrative of a threat from black activism, but it remains consistent with the fbi’s historical practices. during cointelpro, the fbi described a threat using the term “black nationalist,” and as recently as 2009, used the term “black separatists” to classify threats.43 while these categories were 39 brown & lacy, state legislatures, supra note 38; shaila dewan et al., police failures spur resignations and complaints of double standard, n.y. times, https://www.nytimes.com/2021/01/07/us/capitol-cops-police.html [https://perma.cc/jar5-g9ag] (jan. 20, 2021). 40 brown & lacy, rebrand, supra note 38. 41 brown & lacy, state legislatures, supra note 38; brown & lacy, rebrand, supra note 38; o’connor, supra note 38. 42 2017 assessment, supra note 1, at 2; ryan j. reilly, rep. bass, who pressed sessions on black ‘extremist’ label, wants fbi report trashed, huffington post (nov. 15, 2017, 11:31 pm), https://www.huffpost.com/entry/f bi-black-extremists-jeff-sessions_n_5a0b0f8de4b00a6eece47498 [https://perma.cc/hf8x-u8km]; associated press, watch: lawmaker asks sessions why there’s an fbi report about black ‘extremists,’ but not one about those who are white, pub. broadcasting serv. (nov. 14, 2017, 3:56 pm) [hereinafter associated press, sessions], https://www.pbs.org/newshour/politics /watch-lawmaker-asks-sessions-why-theres-an-fbi-report-about-blackextremists-but-not-one-about-those-who-are-white [https://perma.cc/d82cw2tp]; adam goldman & nicholas fandos, lawmakers confront f.b.i. director over report on black extremists, n.y. times (nov. 29, 2017), https://www.nytimes.com/2017/11/29/us/politics/fbi-black-identity-extremistreport.html [https://perma.cc/qsr2-7h56]. 43 cointelpro, fed. bureau investigation [hereinafter cointelpro, fbi], https://vault.fbi.gov/cointel-pro [https://perma.cc/ec2ffc99] (last visited sept. 12, 2020); freedom of information and privacy 12 colum. j. race & l. f. [vol. 11:1 also overly broad and used to target civil rights activism, the terminology still attempts or pretends to focus on specific political ideologies, not general black activism. the 2017 assessment provides the first record of the term bie, which reappears in the 2018 guidance, using it to describe black people who are likely to target law enforcement in retaliation for police brutality.44 the term also encompasses those who support autonomous black social institutions and communities, linking bie to earlier threat designations such as “black separatist” and “black nationalist.”45 the 2019 guidance begins grouping bies and wses under the term “racially motivated extremists” (rmes), but explicitly distinguishes black rmes (brmes) from white rmes (wrmes).46 the 2020 guidance invents the category of rmves, which does not identify a particular racial group in the name.47 the 2018–20 guidance for bies, brmes, and rmves includes nearly identical threat definitions to the 2017 assessment.48 although director wray publicly claims otherwise, the rmve label is not focused only on violence; it repackages a historical fear of black activism which the fbi attempts to justify with fearmongering over black nationalism and separatism.49 acts subject: (cointelpro) black extremist 100-448006 section 1, fed. bureau investigation [hereinafter foipa, fbi], https://vault.fbi.gov/cointelpro/cointel-pro-black-extremists/cointelpro-black-extremists-part-01-of/view [https://perma.cc/rqa5-c2fb] (last visited sept. 12, 2020); michael german, manufacturing a “black separatist” threat and other dubious claims: bias in newly released fbi terrorism training materials, am. civ. liberties union (may 29, 2012, 1:31 pm) [hereinafter german, black separatist], https://www.aclu.org/blog/national-security/discriminatoryprofiling/manufacturing-black-separatist-threat-and-other [https://perma.cc/sc98-4e2m]. 44 2017 assessment, supra note 1, at 4 (“the fbi judges it is very likely bie perceptions of police brutality against african americans have become organizing drivers for the bie movement since 2014, resulting in a spike of bies intentionally targeting law enforcement with violence. in all six targeted attacks since 2014, the fbi assesses it is very likely the bie suspects acted in retaliation for perceived past police brutality incidents.”); timeline of events in shooting of michael brown in ferguson, associated press (aug. 8, 2019), https://apnews.com/9aa32033692547699a3b61da8fd1fc62 [https://perma.cc/df5f-4t8v]. 45 2017 assessment, supra note 1, at 2 n.b; foipa, fbi, supra note 43; german, black separatist, supra note 43. 46 2018–20 guidance, supra note 5, at 4, 12. 47 id. at 17–18. 48 id. see supra text accompanying note 7 (bie threat definition). 49 2018–20 guidance, supra note 5, at 4, 12, 17–18; tau, supra note 4; foipa, fbi, supra note 43; german, black separatist, supra note 43; yohuru williams, the coming war on ‘black nationalists’, nation (july 20, 2016), 2021] racially motivated spying pretext 13 the fbi defends increasing surveillance of black activists—despite having scant evidence that they are domestic terror threats—by falsely equating them with wses who, based on the fbi’s evidence and recent incidents of violence, are real and serious threats.50 in 2018, the fbi assessed the magnitude of the alleged bie threat to be at impact level 2 and authorized a response at mitigation level b.51 after grouping bie and wse together into the rmve category, the fbi upgraded the threat to impact level 1, which is the highest level and on par with isis, and authorized mitigation legal a as a response, which includes a “surge in investigative activity, or development of new operational capabilities.”52 to justify impact level 1, the fbi points only to terrorist acts perpetrated by wses, but the upgraded response allows more surveillance of all rmves, including alleged bies.53 treating the wse threat54 and alleged bie threat as the same issue or as comparable issues is unjustifiable. the 2017 assessment offers the fbi’s most substantial explanation of the alleged bie threat, yet it fails to show that a coherent bie movement or bie ideology exists.55 the assessment gestures vaguely at activity during the 1960s and 1970s, but draws no connection from these half-century-old activities to the present day.56 it does not identify any active bie groups, leaders, or organized activity that demonstrate a legitimate bie threat.57 instead, the 2017 assessment points to six unconnected incidents committed by lone offenders that together killed a total https://www.thenation.com/article/archive/the-coming-war-on-blacknationalists/. 50 2018–20 guidance, supra note 5, at 20. 51 id. at 6. in the 2018–20 guidance, “impact level” refers to the magnitude of a threat, with impact level 1 being the highest, and “mitigation level” refers to the amount of effort and resources the fbi intends to dedicate to reducing that threat, with mitigation level a being the highest. see id. applying impact level 2 and mitigation level b to the alleged bie threat already appears excessive based on the limited available evidence of an alleged bie threat, but that is even more apparent in the 2020 guidance. 52 id. at 6, 20. 53 id. at 20. 54 see supra text accompanying note 10 (explaining this comment’s use of the term “wse threat”) 55 2017 assessment, supra note 1, at 4; speri, the strange tale, supra note 3. 56 2017 assessment, supra note 1, at 6; speri, the strange tale, supra note 3; theoharis, supra note 23. 57 2017 assessment, supra note 1, at 4; speri, the strange tale, supra note 3. 14 colum. j. race & l. f. [vol. 11:1 of eight people.58 four of these offenders had ties to moorish sovereign citizen ideology, previously treated as black separatism; one offender had been visiting websites related to isis, al qaeda, and al shabaab, all of which have their own threat categories; and the last offender had no identified connection to “any international terrorism or domestic extremist groups.”59 following the 2017 assessment, only one person, rakem balogun, has ever been arrested and charged as a bie, and charges were dropped six months later.60 in balogun’s case, the fbi began surveillance after learning from far-right conspiracy theory website infowars that balogun protested against police brutality, continued surveillance because balogun expressed anger toward the police in facebook posts without making specific threats, and arrested balogun for illegal firearm possession based on an incorrect reading of the law.61 based on the fbi’s evidence, concerns over the alleged bie threat are unsupported and exaggerated. compare these alleged bie incidents with the recent instances of wse violence. the 2020 guidance gives four examples of rmve violence to justify impact level 1: the 1995 oklahoma city bombings which killed 168 people; the 2018 pittsburgh synagogue shooting which killed eleven people; the 2019 poway synagogue shooting which killed one person; and the 2019 christchurch mosque shooting in new zealand which killed fifty-one people.62 these acts of violence were all committed by 58 2017 assessment, supra note 1, at 4–6. 59 id. at 4–6; merrit kennedy & tanya ballard brown, what we know about the dallas suspected gunman, nat’l pub. radio (july 8, 2016, 2:42 pm), https://www.npr.org/sections/thetwo-way/2016/07/08/485239295/what-weknow-about-the-dallas-suspected-gunman [https://perma.cc/zga5-998s]; michael schwirtz & william k. rashbaum, attacker with hatchet is said to have grown radical on his own, n.y. times (oct. 24, 2014), https://www.nytimes.com/2014/10/25/nyregion/man-who-attacked-police-withhatchet-ranted-about-us-officials-say.html [https://perma.cc/66du-r8zj]. 60 martin de bourmont, charges dropped in first case against ‘black identity extremist’, daily beast (may 11, 2018, 5:05 am), https://www.thedailybeast.com/charges-dropped-in-first-case-against-blackidentity-extremist [https://perma.cc/7hke-urz3]. balogun’s legal name is christopher daniels. id. 61 sam levin, black activist jailed for his facebook posts speaks out about secret fbi surveillance, guardian (may 11, 2018, 3:01 pm), https://www.theguardian.com/world/2018/may/11/rakem-balogun-interviewblack-identity-extremists-fbi-surveillance [https://perma.cc/6rvg-rs24]. 62 2018–20 guidance, supra note 5, at 20; jamelle bouie, opinion, the march of white supremacy, from oklahoma city to christchurch, n.y. times (mar. 18, 2019), https://www.nytimes.com/2019/03/18/opinion/mcveigh-newzealand-white-supremacy.html [https://perma.cc/2yql-a3wp]; zack beauchamp, poway and pittsburgh: the rise in murderous anti-semitism, 2021] racially motivated spying pretext 15 wses, although the guidance refers to them as rmves.63 additionally, in 2019 (after the 2018–20 guidance was released), a wse shot and killed twenty-two people in el paso.64 these incidents follow other high-profile acts of wse violence in recent years, such as the 2015 charleston shooting of a historically black church, killing nine people, and the 2017 charlottesville white supremacist rally which killed one person.65 the capitol insurrection was also organized, led, and perpetrated by white supremacists.66 many of these offenders cite other wses as inspiration, refer to a common literature base, or recite the same mantras, showing a connected movement.67 the fbi has recently been more vocal about the threat that wses represent, but the agency often uses generic language about extremist threats rather than naming specific white supremacist groups, claiming that it focuses only on violence, not explained, vox (may 1, 2019, 11:40 am), https://www.vox.com/policy-andpolitics/2019/5/1/18524103/poway-synagogue-shooting-anti-semitism [https://perma.cc/hda6-3cdn]. 63 2018–20 guidance, supra note 5, at 20; bouie, supra note 62; beauchamp, supra note 62. 64 elisha fieldstadt & ken dilanian, white nationalism-fueled violence is on the rise, but fbi is slow to call it domestic terrorism, nbc news (aug. 5, 2019, 3:49 pm), https://www.nbcnews.com/news/us-news/whitenationalism-fueled-violence-rise-fbi-slow-call-it-domestic-n1039206 [https://perma.cc/fus7-yfgs]. 65 lois beckett, a history of recent attacks linked to white supremacy, guardian (mar. 15, 2019, 7:22 pm), https://www.theguardian.com/world/2019/mar/16/a-history-of-recent-attackslinked-to-white-supremacism [https://perma.cc/ar2j-mlmv]. the charlottesville rally occurred nine days after the 2017 assessment was issued. id. 66 mallory simon & sara sidner, decoding the extremist symbols and groups at the capitol hill insurrection, cnn, https://www.cnn.com/2021/01/09/us/capitol-hill-insurrection-extremist-flagssoh/index.html [ https://perma.cc/3ccx-esjn] (jan. 11, 2021, 10:07 am). 67 fieldstadt and dilanian, supra note 64 (“[t]he man suspected of gunning down 22 people at an el paso, texas, walmart saturday posted an anti-immigrant screed on an anonymous extremist message board, citing the christchurch, new zealand, mosque shooter . . . as an inspiration. in april, a man suspected of opening fire at a san diego synagogue . . . posted a note online that . . . . named the christchurch shooter and the man accused of fatally shooting 11 people inside a pittsburgh synagogue as inspirations . . . . [a] 19-year-old man, suspected of killing three people at a gilroy, california, food festival before killing himself, left a note on instagram instructing followers to read a 19th-century white nationalist book.”); bouie, supra note 62 (“[t]he accused christchurch shooter made frequent references to ‘white genocide,’ . . . . he recites the ’14 words’—a white supremacist mantra . . . . [t]he term ‘white genocide’ was coined by david lane, a white supremacist responsible for the murder of a jewish radio host in 1984. he, like [oklahoma city bomber timothy] mcveigh, was also inspired by [neo-nazi author] william pierce.”). 16 colum. j. race & l. f. [vol. 11:1 ideology.68 this claim is dubious, not only because the fbi’s threat definitions still reference ideological factors, but also because the fbi continues to target the alleged bie threat despite lacking evidence of extremism or violence while downplaying the wse threat which has shown violent extremist tendencies.69 the wse threat is verified and significant in a way that is incomparable to the alleged bie threat and merits impact level 1 on its own. the rmve threat comes from wses, not black activists. despite this, the fbi artificially groups the alleged bie threat and wse threat together as rmve to justify increasing surveillance of black activists because of the same fears that motivated cointelpro—fears of black unity, black respectability, and black revolution.70 iii. counter-profiling: a novel surveillance justification the creation of the rmve category marks an innovation in the justification for surveillance of black people that this comment calls “counter-profiling.” counter-profiling can be defined as the practice of using a threat emanating from one population to justify increased policing of a different population that does not fit, and is sometimes the opposite of, the profile for that threat. law enforcement’s shift in focus from the threatening population to the targeted population is facilitated by generalizing the threat to create a narrative that anyone could be a threat, then using this narrative as a pretext for increased surveillance of the targeted population. counter-profiling may occur as a result of malice, or it may come from an unconscious bias to view the targeted population as criminal and the threatening population as innocent. regardless, the consequence is an unjust project of increased surveillance, policing, and punishment of the targeted population while the actual threat is not properly addressed. counter-profiling can be illustrated by the following hypothetical scenario. imagine a teacher who has a favorite 68 fbi oversight before the h. comm on the judiciary, 116th cong. 3 (2020) (statement of christopher wray, director of the fbi) (discussing the rmve threat without mentioning white supremacy); marshall cohen, fbi director says white supremacy is a ‘persistent, pervasive threat’ to the us, cnn, https://www.cnn.com/2019/04/04/politics/fbi-director-wray-whitesupremacy/index.html [https://perma.cc/k5tr-qqdp] (apr. 4, 2019, 11:27 am). 69 2018–20 guidance, supra note 5, at 20. 70 see hoover, supra note 16 (declaring the fbi’s goals to be preventing coalitions of civil rights groups because “[i]n unity there is strength,” preventing leaders from gaining respectability among the general public, and avoiding “a true black revolution”). 2021] racially motivated spying pretext 17 student, w, and least favorite student, b. w often causes a ruckus in class and has been bothering b. the teacher notices that w is acting out and b might be upset, so the teacher warns them that they will both be monitored closely. however, the teacher has a history of ignoring w’s misbehavior, while overly scrutinizing and punishing b. although the teacher has evidence that w fits the misbehaving profile and is much more likely than b to cause a future ruckus, the teacher may instead choose to scrutinize b’s behavior. the teacher is grouping w and b together even though they are not collaborating; they are not engaged in similar activities; and b has not caused a problem. by doing so, the teacher has used the actions of w to create a pretext for greater surveillance of b, making b vulnerable to punishment from the teacher (and more harassment from w), while maintaining the outward appearance that they are treating both students equally. the teacher is surveilling students in a manner counter to the profile they have, or reasonably should have, developed for spotting misbehavior so that the disfavored student faces excessive punishment, while the favored student’s misbehavior is ignored. thus, the teacher has engaged in counter-profiling as a new way to justify punishing b.71 grouping wses and bies into the rmve category produces a similar outcome. because the fbi’s mitigation strategy is applied generally to rmves, the independent danger from wses changes the way that the fbi responds to alleged bies.72 recent wse attacks have raised the rmve threat to impact level 1, so the fbi is able to apply mitigation level a and its “surge in investigative activity, or development of new operation capabilities,” to both suspected wses and bies.73 rising wse violence leads the fbi to target black people who are the opposite of the profile for racially motivated violence. in 71 schools are a particularly useful context to illustrate counter-profiling because the increase in policing at schools in response to school shootings follows a similar pattern. the rise in shootings at k–12 schools, most of which are committed by white male students, have led more schools to increase police presence, but police resources are being allocated to schools with greater black and brown student populations because even though those students do not present the threat that schools are trying to address, those students are still seen as more dangerous. david noriega & tess owens, nearly all mass shooters since 1966 have had 4 things in common, vice (nov. 19, 2019, 8:46 am), https://www.vice.com/en_us/article/a35mya/nearly-all-massshooters-since-1966-have-had-four-things-in-common [https://perma.cc/4ectl4wm]; advancement project & all. for educ. just., we came to learn 23, 43 (2018), https://advancementproject.org/wpcontent/uploads/wctlweb/index.html [https://perma.cc/n62s-ys9l]. 72 2018–20 guidance, supra note 5, at 18–20. 73 id. at 20. 18 colum. j. race & l. f. [vol. 11:1 this way, the fbi has weaponized race-neutrality to engage in racialized surveillance. recent reports suggest that the dhs is now modeling this tactic of using race-neutral language to downplay the wse threat and emphasize left-wing threats.74 the bills that have been introduced in various state legislatures to target black activism following the capitol insurrection show that state governments are contributing to this trend as well.75 the fbi has not released documents detailing excessive surveillance of black activists since the 2020 guidance was implemented.76 however, the fbi’s history, including cointelpro and the response to recent protests, provides reason to be very suspicious of what the fbi does with increased surveillance power over racial minorities who act to protect their rights.77 counter-profiling differs from issues of colorblind racism, where structural disadvantages that people of color face due to race are ignored; or racial profiling, where a real but often exaggerated threat is unfairly attributed to an entire race due to the actions of a few individuals of that race. in this counter-profiling situation, there are no structural explanations or pattern of incidents to suggest black communities engage in racially motivated violence because it simply does not happen. any burden of surveillance falling on black activists for rmve is not only disproportionate relative to their risk of engaging in rmve, but it is also unjustified in an absolute sense because the risk of such violence from black activists is practically zero. the burden of surveillance falling on black activists is not only facilitated by structural racial inequities; it is an invention of new racist policies. and, black activists are not being excessively 74 see zachary cohen, whistleblower accuses trump appointees of downplaying russian interference and white supremacist threat, cnn (sept. 9, 2020, 9:02 pm), https://www.cnn.com/2020/09/09/politics/dhs-whistleblowerwhite-supremacist-threat/index.html [https://perma.cc/e23r-rcbu]. an early draft of the dhs homeland threat assessment labels wses as the greatest terror threat, but later drafts replace that term with “domestic violent extremists.” a whistleblower has accused dhs leaders of directing officials to downplay the wse threat and emphasize threats from leftist groups. see also matt stieb, fbi won’t deliver report on white-supremacist terror threat until after election, n.y. mag.: intelligencer (oct. 26, 2020), https://nymag.com/intelligencer/2020/10/fbi-wont-have-doc-on-domestic-terroruntil-after-election.html [https://perma.cc/u23z-9cbb] (describing the trump administration’s plan to delay reports about the wse threat until after the 2020 election to uphold former president trump’s narrative about left-wing violence being a greater threat). 75 brown & lacy, state legislatures, supra note 38; brown & lacy, rebrand, supra note 38; o’connor, supra note 38. 76 speri, fbi spying, supra note 27. 77 speri, the strange tale, supra note 3; reichert, supra note 36. 2021] racially motivated spying pretext 19 targeted because the fbi believes they are “the right people”; they are being targeted even though the fbi knows they are the wrong people.78 law enforcement officers generally appear to suffer from dissonance when faced with evidence of white populations creating problems because white supremacist ideology has long been entrenched in law enforcement agencies.79 there has been several examples in recent years of officers sympathizing with white supremacists rather than treating them as threats, which strongly suggests that law enforcement agencies are not taking the threat seriously and are not tailoring solutions to address problems in white communities.80 in particular, the capitol insurrection highlights that there is not only a difference in how law enforcement conducts itself in response to black activists as compared to white supremacists, but also differences in preparedness—likely because police have difficulties seeing white supremacist rallies as posing a violent threat while black 78 see floyd v. city of new york, 959 f. supp. 2d 540, 602–05 (s.d.n.y. 2013) (criticizing the new york police department for its stop-and-frisk policy which targeted black people under the assumption that they were “the right people” to search for contraband, such as drugs or weapons). 79 michael german, hidden in plain sight: racism, white supremacy, and far-right militancy in law enforcement, brennan ctr. for just. (aug. 27, 2020) [hereinafter german, hidden in plain sight], https://www.brennancenter.org/our-work/research-reports/hidden-plain-sightracism-white-supremacy-and-far-right-militancy-law [https://perma.cc/23q89eq4]. 80 see id. (“portland police and dhs agents appeared inappropriately sympathetic to violent members of the far-right groups, while conducting mass arrests and indiscriminately using less-lethal munitions against antiracist and antifascist counterprotesters. dhs officers were captured on video soliciting the assistance of militia members to arrest antiracist protesters.”); dewan, supra note 39 (“officers . . . cringed and retreated from—or posed for a selfie with—the mostly white pro-trump mob.”); jemima mcevoy, video of police ignoring suspected kenosha shooter sparks calls of injustice, forbes (aug. 26, 2020, 7:17 pm), https://www.forbes.com/sites/jemimamcevoy/2020/08/26/video-ofpolice-ignoring-suspected-kenosha-shooter-sparks-calls-of-injustice [https://perma.cc/s8rb-85gq] (kenosha police told armed white vigilantes at a protest following the shooting of jacob blake that their presence was appreciated, and after white teenager kyle rittenhouse shot three protestors, killing two, police ignored him at the scene); janet reitman, u.s. law enforcement failed to see the threat of white nationalism. now they don’t know how to stop it, n.y. times mag. (nov. 3, 2018), https://www.nytimes.com/2018/11/03/magazine/fbi-charlottesville-whitenationalism-far-right.html [https://perma.cc/g4hk-n82y] (“cops would stand watch at [alt-right] events . . . [t]hey still tolerated them. . . . [c]ops were far less forgiving of . . . black lives matter supporters, whose protests have been met by dozens of cops in riot gear, as well as sometimes members of a paramilitary support unit.”). 20 colum. j. race & l. f. [vol. 11:1 activism is always considered dangerous.81 for law enforcement agencies, it is far more palatable to say that the problem must be more general and that people of any background could be a threat. such generalization gives the agencies cover to reject the profile of rmves as white supremacists and default to familiar biases that treat people of color as a threat, even when they clearly do not fit the rmve profile. additionally, a long history of racism in policing suggests a strong possibility that fbi is actively trying to obscure white supremacist violence to protect white populations and target black populations.82 beyond implicit bias, law enforcement has a serious, neglected problem of harboring white supremacists in its ranks—a problem which was recently on full display with several off-duty police participating in the capitol insurrection.83 if the fbi is engaged in counter-profiling to target black activists, that provides more evidence that its response to the alleged bie threat is irrational, haphazard, and harmful. 81 dewan, supra note 39 (noting the failures of the capitol police); josh margolin & lucien bruggeman, months ahead of capitol riot, dhs threat assessment group was gutted: officials, abc news (jan. 9, 2021, 7:18 pm), https://abcnews.go.com/us/months-ahead-capitol-riot-dhs-threat-assessmentgroup/story?id=75155673 [https://perma.cc/87md-rtpn] (describing how the dhs office of intelligence and analysis, which would have played a role in coordinating intelligence ahead of the capitol insurrection, had its operations and staffing slashed in 2020); leila fadel, ‘now the world gets to see the difference’: blm protestors on the capitol attack, nat’l pub. radio (jan. 9, 2021, 1:53 pm), https://www.npr.org/2021/01/09/955221274/now-the-world-getsto-see-the-difference-blm-protesters-on-the-capitol-attack [https://perma.cc/j4s8-qbqz] (discussing the difference in how the insurrectionists were treated compared to blm protestors); 82 kappeler, supra note 12; german, hidden in plain sight, supra note 79; mcevoy, supra note 80; reitman, supra note 80; radley balko, there’s overwhelming evidence that the criminal-justice system is racist. here’s the proof, wash. post (apr. 10, 2019), https://www.washingtonpost.com/news/opinions/wp/2018/09/18/theresoverwhelming-evidence-that-the-criminal-justice-system-is-racist-heres-theproof/ [https://perma.cc/mp3m-revu]; floyd, 959 f. supp. 2d at 589–624. 83 german, hidden in plain sight, supra note 79 (reporting that law enforcement throughout the country have ties to white supremacist organizations, yet there has been little response at the local, state, or federal level to protect communities of color from explicitly racist law enforcement); tom porter, 31 police officers are under investigation over their suspected involvement in the capitol riot, as departments face pressure to weed out white nationalists, bus. insider (jan. 25, 2021), https://www.businessinsider.com/31police-officers-investigated-suspected-capitol-riot-involvement-report-2021-1 [https://perma.cc/7ntq-cgys] (stating that, as of january 25, 2021, 31 police officers from departments nationwide are under investigation for involvement in the capitol insurrection). 2021] racially motivated spying pretext 21 iv. fbi surveillance of black activists violates the equal protection clause the fbi is violating the fourteenth amendment by abusing its surveillance power to harass black activists on the basis of race. increased surveillance against black activists is dangerous to their safety, to their rights, and to campaigns for racial justice.84 while the fbi’s surveillance of the alleged bie threat has been challenged using tort law and the freedom of information act (foia), a constitutional challenge to bring down this surveillance regime as a whole has, thus far, not been brought.85 this section analyzes the efficacy of such a challenge using the equal protection clause and finds that the fbi’s surveillance of black activists should be ruled unconstitutional. an equal protection clause challenge under the fourteenth amendment to fbi surveillance of the alleged bie threat could take on two forms. the first form would argue that when considering the surrounding circumstances, the fbi’s threat guidance demonstrates an invidious discriminatory purpose and is intended to increase surveillance of black people and violate their civil rights without justification. the second form would argue that the fbi’s threat guidance is a policy of discriminatory surveillance based on a racial classification that is not narrowly tailored to promote national security, and should therefore be rejected. both should succeed. a. the 2020 guidance demonstrates a racially discriminatory intent the fbi’s 2020 guidance should be struck down as a violation of the equal protection clause because it was written with the discriminatory purpose of targeting black activists for unjustified surveillance to undermine their civil rights. the documents that the fbi released in response to the american 84 nusrat choudhury, the government is watching #blacklivesmatter, and it’s not okay, am. civ. liberties union (aug. 4, 2015, 10:30 am), https://www.aclu.org/blog/racial-justice/government-watchingblacklivesmatter-and-its-not-okay [https://perma.cc/u7mw-3wdv]. 85 mediajustice, et al. v. federal bureau of investigation, et al., am. civ. liberties union (mar. 21, 2019), https://www.aclu.org/cases/mediajustice-etal-v-federal-bureau-investigation-et-al [https://perma.cc/y4fg-cen8] (pending lawsuit for foia violations); gallagher v. fbi, no. 3:19-cv-2250-k-bn, 2019 wl 5273238, at *3–4 (n.d. tex. sept. 23, 2019), report and recommendation adopted, no. 3:19-cv-2250-k, 2019 wl 5268517 (n.d. tex. oct. 16, 2019) (dismissing a tort claim for failure to show the fbi had waived sovereign immunity, and in part because gallagher had a personal history as a serial litigator resulting in court sanctions). 22 colum. j. race & l. f. [vol. 11:1 civil liberties union (aclu) and mediajustice’s foia request are heavily redacted, so it is difficult to find explicit evidence of the fbi’s discriminatory purpose.86 however, this is not the only way to prove a discriminatory purpose. in village of arlington heights v. metropolitan housing development corporation, the supreme court defined a multi-factor test for finding invidious intent even in facially race-neutral policies.87 this requires a fact-intensive inquiry into the surrounding circumstances of an action. courts review the policy’s impact, its historical background, the sequence of events leading up to it, departures from normal procedure, substantive departures showing decision-makers took an action that is contrary to what they normally consider important, and legislative or administrative history.88 if a review of these factors demonstrates “a clear pattern, unexplainable on grounds other than race,” then the court can infer an invidious discriminatory purpose motivating the action which violates the equal protection clause.89 for nearly every factor in the arlington heights test, there is evidence of the fbi’s discriminatory intent. the impact of fbi policies from the 2017 assessment to the 2020 guidance is an increase in the surveillance of black activists by broadening the scope of potential targets and dedicating more resources to such surveillance without a corresponding increase in the risk of violent extremism.90 the fbi’s threat definitions also criminalize black people acting to collectivize their experiences to cope with racism.91 part of the definition of rmves includes attempts to further “autonomous black social institutions [or] communities,” which can be interpreted broadly enough to chill nearly any form of black solidarity.92 for example, supporting black-owned businesses may be seen as promoting autonomous black social institutions, and joining racial justice organizations such as blm could be seen as strengthening black communities. non-black people can engage in these activities without fear, but black people do so at the risk of fbi surveillance. 86 choudhury & cyril, supra note 27; speri, fbi spying, supra note 27. 87 vill. of arlington heights v. metro. hous. dev. corp., 429 u.s. 252, 266–68 (1977). 88 id. 89 id. 90 2017 assessment, supra note 1, at 2; 2018–20 guidance, supra note 5, at 17–20. 91 klippenstein, supra note 6; 2017 assessment, supra note 1, at 2 n.b; 2018–20 guidance, supra note 5, at 4, 12, 17. 92 2018–20 guidance, supra note 5, at 18. 2021] racially motivated spying pretext 23 the history and events leading up to the 2020 guidance also shows that race is a significant factor in the fbi’s decision-making. the historical background of current fbi surveillance includes a slew of illegal and unethical racially motivated fbi activity under cointelpro.93 the 2017 assessment coining the bie terminology states that it was written as a response to the ferguson uprising and the rise of blm in 2014.94 the 2018 and 2020 guidance reiterates this motivation even more explicitly.95 additionally, after the 2017 guidance came out, there was a massive uproar over the bie terminology in part for its explicit use of race.96 in response, director wray publicly stated that the fbi had dropped that terminology and was shifting its focus to violence.97 however, he failed to mention that the content of the guidance largely did not change, except to increase, not decrease, the fbi’s surveillance power over the alleged bie threat.98 director wray’s statement was severely misleading, but he achieved his intended goal of subduing public criticism, leading to headlines like “fbi abandons use of term ‘black identity extremism,’” while the surveillance, in fact, became more aggressive.99 from the 2018 to 2020 guidance, the fbi moved incrementally toward racially neutral terminology and increased surveillance power while the threat definitions remained the same and the alleged bie threat remained fictional.100 the ways in which racial classifications are crafted and managed over time to disadvantage and violate the constitutionally guaranteed rights of racial minorities cannot be separated from a discriminatory intent. additionally, the fbi’s counter-profiling of rmve shows a tension between its stated interests and its actions.101 the fbi claims that its goal is to address violent extremism, but it dilutes its resources by chasing after a non-existent alleged bie threat 93 see generally church committee report, vol ii, supra note 14; church committee report, vol iii, supra note 14; gibbons, supra note 20. 94 2017 assessment, supra note 1, at 4. 95 id.; 2018–20 guidance, supra note 5, at 6, 18 (“the fbi first observed this activity following the august 2014 shooting of michael brown in ferguson, missouri, and the subsequent acquittal of police officers involved in that incident.”). 96 speri, the strange tale, supra note 3; associated press, sessions, supra note 42; goldman & fandos, supra note 42. 97 tau, supra note 4. 98 2017 assessment, supra note 1, at 2; 2018–20 guidance, supra note 5, at 4, 12, 18. 99 tau, supra note 4; 2018–20 guidance, supra note 5, at 20. 100 2018–20 guidance, supra note 5, at 4, 6, 8, 10, 12, 14, 17, 20. 101 see supra part ii.b (discussing how wses present the greatest threat, but the fbi chooses to surveil black activists anyway). 24 colum. j. race & l. f. [vol. 11:1 instead of focusing on the wse threat, making it more difficult to address violent extremism. director wray also claimed that the fbi was not interested in policing ideology, but the 2020 guidance continues to maintain ideological factors in its threat definition for rmve.102 these decisions show a departure from the fbi’s stated values of conducting unbiased investigations to prevent violence. while it is unknown whether the fbi departed from its normal procedures for issuing threat guidance, there is more than enough reason from other factors to believe the fbi is acting with discriminatory intent. the circumstances leading up to the 2020 guidance show a “clear pattern, unexplainable on grounds other than race” which empowers courts to strike it down as discriminatory state action.103 b. the 2020 guidance invokes a suspect classification and fails strict scrutiny the fbi uses race as a suspect classification in its 2020 guidance. for this racial classification to be constitutionally permissible, the fbi must be able to show the classification survives strict scrutiny.104 the strict scrutiny test requires that a classification using a protected characteristic, such as race, be narrowly tailored to promote a compelling governmental interest, such as national security.105 however, the fbi’s use of race is not narrowly tailored to serve the national security interests it claims, making it unconstitutional under the equal protection clause. the fbi’s dedication of resources to mitigate the alleged bie threat is state action using a racial classification because the fbi’s suspicion of a person under this threat guidance requires them to consider that person’s race. the fbi would likely claim that the 2020 guidance is racially neutral because of the shift in terminology from bie to rmve, and thus the surveillance policy should only be subject to the less searching rational basis review, which requires that a policy be rationally related to a legitimate state interest.106 however, that claim of neutrality should be rejected. the 2020 guidance on rmves is still a racial classification due to the racial language throughout the 2018–20 guidance.107 as the 102 tau, supra note 4; 2018–20 guidance, supra note 5, at 17. 103 vill. of arlington heights v. metro. hous. dev. corp., 429 u.s. 252, 266 (1977). 104 16b am. jur. 2d constitutional law § 858 (2020). 105 adarand constructors, inc. v. pena, 515 u.s. 200, 227 (1995). 106 williamson v. lee optical of oklahoma inc., 348 u.s. 483, 488 (1955). 107 2018–20 guidance, supra note 5, at 17. 2021] racially motivated spying pretext 25 supreme court held in adarand constructors, inc. v. pena, “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.”108 promoting “national defense and safety” and protecting the us from attacks has been recognized as a compelling government interest since the earliest use of the strict scrutiny test in korematsu v. united states to justify japanese internment in 1944, and as recently as 2018 in trump v. hawaii (which abrogated korematsu) to uphold the travel ban against several muslim-majority countries.109 under rational basis review, surveillance of rmves would likely be upheld as rationally related to the legitimate state interest of national security based on the fbi’s description of a serious rmve threat.110 however, if the rmve threat definition is correctly identified as a racial classification, it would trigger strict scrutiny and be rejected because while national security is a compelling state interest, the 2020 guidance is not narrowly tailored to promote it. 1. rmve terminology is a racial classification despite the general nature of the term rmve, the fbi’s 2020 guidance on the rmve threat is still a racial classification. rmve may appear race-neutral because any person can commit violent acts motivated by race and be classified as an rmve threat, regardless of their own race.111 that would be comparable to washington v. davis, where a federal employer’s qualification exam was not ruled racially discriminatory despite its disproportionately negative impact on black applicants because it was facially neutral, and there was no apparent intent to discriminate.112 however, unlike the exam in davis, the “threat definition” of rmves uses racial language to describe rmves, stating: “some rmves are driven by a belief in the superiority of the white race . . . . other rmves use force or violence . . . in an effort to establish a separate black homeland or autonomous black social institutions.”113 the fbi also has four pairs of codes listed under “fbi requirements” and “case classifications” 108 adarand, 515 u.s. at 227. 109 korematsu v. united states, 323 u.s. 214, 216–18 (1944), abrogated by trump v. hawaii, 138 s. ct. 2392 (2018); trump v. hawaii, 138 s. ct. 2392, 2422 (2018). 110 2018–20 guidance, supra note 5, at 17. 111 id. 112 washington v. davis, 426 u.s. 229, 245–48 (1976). 113 2018–20 guidance, supra note 5, at 17. 26 colum. j. race & l. f. [vol. 11:1 which distinguish rmve cases based on whether the rmve is white or black.114 the absence of discussion of rmve threats from people who are neither black nor white further suggests that the fbi is intentionally focusing on certain racial groups. although the name of the category is facially neutral, the fbi’s rmve policy explicitly identifies and responds to rmves differently based on their race. practically speaking, any investigation of rmves must inevitably include some element of racial suspicion. unless someone is playing a character in a groundbreaking racial comedy sketch show or cartoon, they cannot be a wse without being white and they cannot be a bie without having a black identity.115 the fbi has no way to cognize rmves outside of the framework of wses and bies. to suspect someone of being an rmve requires the fbi to identify them as white or black. race is an integral element of the profile. additionally, rmve terminology is an evolution of prior threat categories that were explicitly race-based, including brme, wrme, bie, wse, black separatist, and black nationalist. the 2017 assessment’s references to activities in the 1960s demonstrate that the fbi believes there is a historical continuity between the civil rights groups who were targeted as threats during cointelpro based on race and the alleged bie threat.116 following the 2017 assessment’s lead, each year of the 2018–20 guidance uses nearly the same definition of the alleged bie threat.117 rmve represents the same racialized threat using a colorblind label. 114 id. at 21 (“fbi requirements[:] usa-terr-ctd-sr-0401-16 (u//fouo) white supremacist extremists[;] usa-terr-ctd-sr-0519-17 (u//fouo) black separatist extremists[.] case classifications[:] 100k (u) terrorism enterprise investigation racially motivated violent extremist (black)[;] 100n (u) terrorism enterprise investigation racially motivated violent extremist (white)[;] 266k (u) racially motivated violent extremist (black)[;] 266n (u) racially motivated violent extremist (white)[;] 336k (u) preliminary terrorism enterprise investigation racially motivated violence extremist (black)[;] 336n (u) preliminary terrorism enterprise investigation racially motivated violence extremist (white)[.]”) (emphasis omitted). 115 see chappelle’s show (pilot boy productions, marobu productions, & comedy central productions jan. 22, 2003) (dave chappelle as “clayton bigsby,” a blind black ku klux klan leader in a sketch entitled “frontline: clayton bigsby”); the boondocks (adelaide productions, rebel base productions & sony pictures television 2005) (gary anthony williams as “uncle ruckus,” a white-identifying black man and white supremacist). 116 2017 assessment, supra note 1, at 6. 117 id. at 2, 2 n.b; 2018–20 guidance, supra note 5, at 4, 12, 18. see supra text accompanying note 7 (bie threat definition). 2021] racially motivated spying pretext 27 2. the 2020 guidance is not narrowly tailored to promote national security neither the rmve category nor mitigation level a, which has been prescribed to address the rmve threat, are narrowly tailored to address the perceived national security risk from the people surveilled. one way to demonstrate that a racial classification is not narrowly tailored is to show that it is overinclusive.118 the rmve category is overinclusive for two reasons. first, it includes both wses and alleged bies, while the fbi’s analysis of the threat shows that wses, not alleged bies, are the reason why the threat is so significant.119 no incidents of alleged bie violence exist that necessitate including a bie movement in the threat guidance.120 every year prior to 2020 during which these threats were maintained as separate categories and there was no significant rise in bie violence shows that it is possible for the fbi to function and address the relevant threats without grouping them together. second, the definition of the alleged bie threat alone is too broad. most of the incidents of violence referenced in the 2017 assessment were committed by moorish sovereign citizen extremists.121 another was influenced by isis, al qaeda, and al shabaab.122 all of them were alleged to have ties to black separatist organizations.123 each of these groups can have a separate threat category because they are each associated with different risks of engaging in violence.124 isis, al qaeda, and al shabaab already have their own threat categories,125 and prior to 2016, the fbi defined “black separatism” as a distinct threat, although this category also could have been narrowed to identify specific threatening groups.126 according to the fbi definition, anyone who has “perceived racism and injustice in american society” is a potential rmve at a time when the entire country has witnessed hundreds of black people being killed by the police each year and a criminal justice system that is structurally 118 ian ayres, narrow tailoring, 43 ucla l. rev. 1781, 1786 (1996) (citing city of richmond v. j.a. croson co., 488 u.s. 469, 506 (1989)). 119 2018–20 guidance, supra note 5, at 17, 20. 120 aleena aspervil, comment, if the feds watching: the f.b.i.’s use of a “black identity extremist” domestic terrorism designation to target black activists & violate equal protection, 62 how. l.j. 907, 942 (2019). see supra part ii.b (detailing the lack of evidence for the alleged bie threat). 121 2017 assessment, supra note 1, at 4–5. 122 schwirtz & rashbaum, supra note 59. 123 2017 assessment, supra note 1, at 4–5. 124 aspervil, supra note 120, at 941. 125 2018–20 guidance, supra note 1, at 1–3. 126 german, black separatist, supra note 43. 28 colum. j. race & l. f. [vol. 11:1 antagonistic toward black life.127 black people are disproportionately vulnerable to fbi surveillance under this guidance. while race may be relevant to detecting some violent threats, like wse, the rmve category goes too far by subjecting black people to fbi suspicion and surveillance because of their race when they are not actually a threat. mitigation level a is also inappropriate for the alleged bie threat based on the fbi’s own guidance. in the 2018 guidance, when bie was listed separately from wse, the alleged bie threat was at impact level 2 and mitigation level b.128 after being grouped with wses in 2020, the threat was moved up to impact level 1 and mitigation level a, but the given justification for that change was recent attacks by wses, not alleged bies.129 if bie was still listed separately, it would likely remain at impact level 2 and mitigation level b or be reduced because there have not been any recent alleged bie incidents even close to comparable to the wse incidents that the fbi referenced. that would make the “surge in investigative activity, or development of new operational capabilities” required under mitigation level a an excessive response to the alleged bie threat.130 additionally, this overpolicing often results in more police brutality that inspires more protests, which the fbi believes to be a threat; therefore, the fbi’s 2020 guidance undermines its own goals.131 the fbi’s 2020 guidance is a racial classification and is not narrowly tailored in its threat definitions or its strategy for combatting the national security threat it identifies, so it should be rejected as a violation of the equal protection clause under strict scrutiny. 127 2018–20 guidance, supra note 1, at 17; balko, supra note 82; gretchen frazee, deadly police shootings keep happening. data could be a missing piece, pub. broadcasting serv. (oct. 16, 2019, 4:08 pm), https://www.pbs.org/newshour/nation/deadly-police-shootings-keep-happeningdata-could-be-a-missing-piece [https://perma.cc/4enj-wwaz]. 128 2018–20 guidance, supra note 5, at 6. 129 id. at 20. 130 id. 131 see, e.g., adam gabbatt, protests about police brutality are met with wave of police brutality across the us, guardian (june 6, 2020, 4:00 am), https://www.theguardian.com/us-news/2020/jun/06/police-violence-protests-usgeorge-floyd [https://perma.cc/pgy9-qv8e] (describing how the excessive response by police to protests against police brutality led to more acts of police brutality). 2021] racially motivated spying pretext 29 3. a consistency requirement to review guidance targeting white supremacy extremism under strict scrutiny is inappropriate to avoid any ambiguity, this argument for the unconstitutionality of the fbi’s surveillance of the alleged bie threat does not apply to the agency’s surveillance of the wse threat. there are two reasons for this: first, strict scrutiny is not the appropriate standard; and second, the latter policies would survive the narrow tailoring requirement. in adarand, the court held that the standard of review for racial classifications should be consistent, regardless of which race a classification burdens.132 the 2020 guidance demonstrates why that is not an appropriate rule for evaluating racial classifications. under the 2020 guidance, wses and alleged bies are both racially classified and appear to be treated the same.133 however, there are significant differences in how the 2020 guidance applies to wses and alleged bies because the fbi measures extremism from different baselines based on a suspect’s race. a consistent application of strict scrutiny obscures those baselines and creates a false equivalence between real wses and alleged bies. the different baselines can be seen throughout the 2018– 20 guidance. one example can be found in the names for the threats in the 2018 guidance—bie and wse. the only nominal prerequisite for a black person to be deemed an extremist is that they have a black identity whereas the prerequisite for a white person is that they advocate white supremacy.134 therefore, all black people are automatically eligible to be labelled a bie whereas white people must take the additional step of advocating white supremacy. additionally, as per the fbi threat definitions, a person would likely believe “in the superiority of the white race and [perceive] that the us government is conspiring with jews and other minority populations to bring about the race’s demise,” to be a wse.135 a bie need only “[perceive] racism and injustice in american society.”136 the grievance that the fbi believes motivates alleged bie violence is the actual killings of innocent black people by unaccountable white police officers, while the grievance motivating wse violence is a fiction of white 132 adarand constructors, inc. v. pena, 515 u.s. 200, 201 (1995). 133 2018–20 guidance, supra note 5, 17–22. see supra part iv.b.1 (the discussion of why rmve terminology would be a racial classification applies to the wse threat as well). 134 2018–20 guidance, supra note 5, at 4, 8. 135 id. at 8. 136 id. at 4. 30 colum. j. race & l. f. [vol. 11:1 genocide.137 there is also no history of bie violence, but centuries of history verifying the wse threat.138 these are only a few reasons why the wse threat and the alleged bie threat are not equivalent. the 2020 guidance grouping them together is not an excuse for courts to evaluate them the same way. to do so would only bolster the false narrative that fighting racism is as bad as being racist.139 even if courts were to apply strict scrutiny to fbi guidance for the wse threat, it would likely survive the narrow tailoring requirement. contrary to the alleged bie threat, the wse threat is well-documented and defined in terms of specific movements and organizations, and the fbi’s justification for its raised impact level and mitigation level is based on a rise in wse violence.140 the arguments against narrow tailoring for the alleged bie threat do not apply to the wse threat.141 it would be irrational and unjust for a court to ignore all of the reasons why the alleged bie threat and the wse threat should be evaluated differently. v. conclusion the fbi works diligently to conduct surveillance of black activists fighting against oppression, both presently and historically. this comment offers a way to understand what the fbi is doing and what makes it unlawful. answering those questions will be crucial to challenging predatory surveillance practices that unjustly and unconstitutionally target black activists. as the biden-harris administration begins to evaluate how it will respond to “domestic violent extremism,” with an explicitly stated interest in challenging white supremacy, 137 id. at 4, 8; bouie, supra note 62. 138 bouie, supra note 62; michael e. miller, ‘the war of races’: how a hateful ideology echoes through american history, wash. post (dec. 27, 2019, 6:55 am), https://www.washingtonpost.com/history/2019/12/27/war-races-howhateful-ideology-echoes-through-american-history/ [https://perma.cc/5um5kj45]. see supra part ii.b (disputing the idea of an alleged bie threat). 139 see, e.g., dan merica, trump says both sides to blame amid charlottesville backlash, cnn, https://www.cnn.com/2017/08/15/politics/trumpcharlottesville-delay/index.html [https://perma.cc/plr6-bl84] (aug. 16, 2017, 1:14 am) (former president trump claimed that “both sides” were to blame when a march of alt-right members, ku klux klan members, and neo-nazis assaulted counter-protestors, killing one). 140 bouie, supra note 62; beckett, supra note 65; 2018–20 guidance, supra note 5, at 20. 141 see supra part iv.b.2 (discussing the arguments against narrow tailoring for the alleged bie threat). 2021] racially motivated spying pretext 31 continued vigilance is necessary.142 old policies must be changed. and new policies must not become retrogressive tools that undermine the very people doing the groundwork to dismantle white supremacy. the federal government should not be allowed to repeat the mistakes and abuses of cointelpro. it should not be able to turn racist violence against black people into a pretext for more surveillance of black people by weaponizing a façade of race neutrality. the fbi’s response to black activism shows a discriminatory intent and cannot withstand strict scrutiny, constituting a violation of the equal protection clause. discussion of an alleged bie threat in any form should be abandoned. 142 julian e. barnes & hailey fuchs, white house orders assessment on violent extremism in u.s., n.y. times (jan. 22, 2021), https://www.nytimes.com/2021/01/22/us/politics/capitol-riot-domesticextremism.html [https://perma.cc/6uc8-t3tt]; chris mcgreal, ‘racism is in the bones of our nation’: will joe biden answer ‘cry’ for racial justice?, guardian (jan. 25, 2021, 3:00 am), https://www.theguardian.com/world/2021/jan/25/joebiden-pledged-racial-justice [https://perma.cc/w2e7-whzb]. columbia journal of race and law vol. 12 july 2022 no. 1 youth and families matter: reconstructing the system one youth at a time from the expertise of youth advocates marcía hopkins,a kara r. finck,b & youth fostering change/justice for juveniles advocates alexis andino,c british christopher,d duane price,e anthony simpson,f & ishale watsong i. introduction.......................................................................................460 ii. the collaboration: juvenile law center’s youth advocacy program projects, youth fostering change and juveniles for justice, and the penn law interdisciplinary child advocacy clinic .................................................................................................461 a. juvenile law center’s youth advocacy program .....................461 b. penn carey law’s interdisciplinary child advocacy clinic ......463 c. the symposium collaboration...................................................464 iii. older youth in foster care: a brief overview of the current state ..................................................................................................466 iv. alienation, racism, and money—the residual sentiments of the foster system as described by youth advocates .......................467 a. “it’s relocation, not removal” ....................................................467 b. “black families don’t matter” ...................................................468 c. “it’s just about the money” .......................................................470 v. a radical reprioritization of values for a family justice system through the inclusion of youth and families with lived experience and expertise .......................................................471 vi. conclusion .........................................................................................475 a marcía hopkins, msw, senior manager, youth advocacy program and policy, juvenile law center. b kara r. finck, practice professor of law and director, interdisciplinary child advocacy clinic, university of pennsylvania carey law school. c alexis andino, youth advocate, juvenile law center and member, pride task force at valley youth house. d british christopher, youth advocate, juvenile law center. e duane price, youth advocate, juvenile law center and youth advocate, national youth advisory board of the national association of counsel for children. f anthony simpson, youth advocacy alumni fellow, juvenile law center and member of the philly homes 4 youth coalition to end youth homelessness in the city of philadelphia and the pride task force at valley youth house. g ishale watson, youth advocate, juvenile law center. 460 colum. j. race & l. [vol. 12:459 i. introduction “i can’t give no good news about the system.”1 with her usual honesty, ms. rivera, a youth advocate who experienced the child welfare system, summarized in only nine words the prevailing sentiments of her colleagues. tasked with the project of meeting and discussing their experiences in the child welfare system as children and their perspectives on reforming the system, the group of youth advocates described a child welfare system that failed them as children, adolescents, and now young adults. despite their poor experience in the child welfare system, each one of them dedicated time, energy, and expertise to this project because of their shared commitment to advocating for transformational reform stating, “we know we aren’t the only ones” impacted negatively by the child welfare system.2 as one youth advocate, mr. watson noted his wish was “that children never come into the system in the first place and that the whole family gets other support, and just get the help that they need.”3 over the course of ten months, the authors, which include six youth advocates with lived experience and expertise as youth advocates in the child welfare system, reflected on the questions posed by the symposium of how to re-envision the child welfare system.4 informed by their experiences in foster care in philadelphia, pennsylvania, and work with the youth fostering change and juveniles for justice programs of the juvenile law center, the youth advocates discussed issues of racism, reform, abolition and child well-being. the themes that emerged over the course of ten months mirrored the concerns first raised by professor dorothy roberts in shattered bonds: the color of child welfare which highlighted the urgent need for the reconstruction of a family-based system of support.5 youth advocates spoke freely about the trauma of being “relocated” to a foster home, feeling commodified during their time in care, experiencing a disjointed and non-participatory judicial system, and a persistent impression that families of color were both targeted and devalued by the system. one youth advocate, ms. andino outlined how the system devalues families of color, and the lack of value and impetus on the system to aid children and youth in continuing to foster these bonds and use these bonds to identify kinship arrangements with family members. she states, “the system doesn’t value our families, they didn’t respect my family enough to consider them for kinshipnot even my grandmother. the system didn’t even value us enough to help me transition to live with or reconnect with her as my grandmother was passing.”6 1 zoom recordings: symposium with the youth advocates, held by the juvenile law center (sept. 2020–june 2021) (on file with author) [hereinafter youth advocate symposium]. 2 id. 3 id. 4 the term “lived experience” is widely used in the literature as a term of art and is defined as “personal knowledge about the world gained through direct, first-hand involvement in everyday events rather than through representations constructed by other people.” see daniel chandler & rod munday, oxford: a dictionary of media and communication 243 (2nd ed. 2011). 5 see dorothy roberts, shattered bonds: the color of child welfare (2002). 6 youth advocate symposium, supra note 1. 2022] youth & families matter 461 our collaborative project was grounded in the belief that families, children and parents are the central participants and primary beneficiaries of the child welfare system in its current iteration, and therefore should guide all reform efforts through meaningful inclusion and participation. imagining a reformed system, youth advocates were uniform in their call for abolition and a radical reprioritization of values. they were clear in their calls for reform led by the meaningful incorporation of parents and youth with lived experiences into the foundation and daily functioning of a newly defined family support system of care that prioritizes support and empowerment instead of surveillance and punishment. by the end of this project, their conclusion was both straightforward, realistic and revolutionary for child welfare: meaningful reform mandates a radical realignment of power to provide full participation, collaboration and shared decision-making authority to families impacted by the child welfare system. ii. the collaboration: juvenile law center’s youth advocacy program projects, youth fostering change and juveniles for justice, and the penn law interdisciplinary child advocacy clinic a. juvenile law center’s youth advocacy program founded in 1975, juvenile law center (“jlc”) is the first nonprofit, public interest law firm for children in the country. the juvenile law center advocates for the rights, dignity, equity and opportunity of youth in the child welfare and justice systems. jlc advances these objectives through litigation, appellate advocacy, and submission of amicus (friend-of-the-court) briefs, policy reform, public education, training, consulting, and strategic communications. widely published and internationally recognized as leaders in the field, juvenile law center has substantially shaped the development of law and policy on behalf of youth.7 in 2008, juvenile center founded their youth advocacy program and developed two projects: juveniles for justice (“j4j”) focused on juvenile justice issues and youth fostering change (“yfc”) focused on youth in the child welfare system. the youth advocacy program provides participating youth the opportunity to develop, propose, and advocate for effective solutions to longstanding systemic problems. through the program, youth advocates develop leadership skills, political knowledge, communication and storytelling skills, and a sense of community. additionally, youth advocates learn valuable skills about how and when to share their experiences for systemic change: how to speak publicly in front of key stakeholders, how to develop a campaign based on an issue they select themselves, and how to work with partners to ensure long-lasting change. by choosing to share their personal experiences to develop and advance reforms, youth advocates help influence juvenile law center’s priorities by working to affect policy change through advocacy, media 7 see about: our mission, juv. law ctr., https://jlc.org/about [perma.cc/2u2x6a5r] (last visited jan. 28, 2022). 462 colum. j. race & l. [vol. 12:459 outreach, and public education. one of the three core values of the youth advocacy program is believing in the power of their participants’ voices because young people are experts in their own lives, and their insights should inform the policies that directly affect them. juvenile law center’s youth advocacy program believes that youth expertise is essential to creating knowledgeable, progressive reform policies. the youth advocacy program team, including the youth advocates themselves, believe youth with experience in the juvenile justice and foster care systems should be at the decision-making table when policies and legislation have the potential to impact their lives and their communities. the program aims to incorporate youth experience and expertise in systemic reform at the local, state, and national levels which can result in targeted policies that effectively respond to the needs of youth.8 the program utilizes the strategic story sharing model created by casey family programs and foster care alumni of america, which focuses on challenging the narratives surrounding the experiences of children and youth in child welfare system and specifically older youth currently or formerly in foster care. at its core, the program trains youth with lived experience how to strategically tell their stories in a way that is meaningful, effective, and safe9. participants have an opportunity to use their strategic story sharing and public speaking skills to participate in the youth speakers bureau. the youth speakers bureau (“ysb”) is a component of the program that “is designed to give youth advocates the skills to use their experience to develop and present thoughtful recommendations to large audiences. program staff work with the youth advocates in the ysb individually to draft their presentations…”10 annually, the advocates in both projects, select an area or issue of particular concern and spend the next year working on a project to propose a reform or implement a new strategy. in the past, yfc’s projects have included youth participation in family court dependency hearings, improved educational outcomes for older youth in foster care and in the justice system, preventing homelessness for youth transitioning out of the foster care system, investigating conditions of confinement for youth in juvenile placements, advocating for an end to youth mass incarceration, engaging older youth in the permanency planning process, and more. projects have culminated in recommendations for improved policies and practice, video collaborations, youth centered planning forms and meetings 8 see generally cathy moffa, building the field of ethical, authentic, & youth-led advocacy: key components of a youth advocacy program (2021), https://jlc.org/sites/default/files/2021-07/keycomponentsfinal_7.2_compressed.pdf [perma.cc/f7cc-e9td] (providing an overview of the juvenile law center and the keys to youth advocacy and youth development). 9 see casey fam. programs & foster care alumni of am., strategic sharing, http://fostercarealumni.org/wp-content/uploads/2014/12/strategicsharing.pdf [perma.cc/fn6l-swh2]. 10 moffa, supra note 8, at 1. /users/f.castle/downloads/casey 2022] youth & families matter 463 with key governmental stakeholders including federal legislative staff and local child welfare agency officials.1112 b. penn carey law’s interdisciplinary child advocacy clinic the interdisciplinary child advocacy clinic (“icac”) at the university of pennsylvania-carey law school focuses on holistic, trauma informed and client centered legal representation and advocacy for youth and families. in the clinic, secondand third-year law students work alongside graduate social work students completing their year-long academic field placement directly representing older youth in foster care through an interdisciplinary, trauma informed and holistic model. the icac seminar focuses on providing students with an interdisciplinary foundation in representing children and families in dependency, custody and other civil legal matters. students learn transferable lawyering skills through an interdisciplinary lens, including strengths-based legal counseling, client-centered interviewing, trauma informed practice and cultural humility. interdisciplinary faculty supervise students on their casework focusing on the legal and social service needs of older youth in care. over the past eight years, the partnership between icac and the youth advocacy program has expanded in several ways based on our shared goal to amplify the voices of youth and families and to propel reforms in the local child welfare system. each semester, the yfc and j4j advocates guest lecture as part of the icac seminar. focusing on client centered practice and youth engagement strategies, the presentation is designed to center and amplify the perspective of youth with lived experience and expertise in the child welfare and juvenile justice system. the presentation is led by the yfc and j4j advocates and covers a range of issues including their perspectives on the court and the attorneys’ representing children, their experiences in foster care and proposals for systemic and legislative reform. the youth advocates provide concrete strategies to the students on engaging and partnering with clients and implementing trauma informed and client centered practice in their lawyering. 11 see generally juvenile law center, youth fostering change: empowering youth in court, youtube (aug. 31, 2017), https://www.youtube.com/watch?v=zcc118ebt-c [perma.cc/t4x7-8bw5]; juvenile law center, a place called home: youth fostering change documentary on foster youth homelessness, youtube (oct. 8, 2015), https://www.youtube. com/watch?v=jkl7vo5v3_8 [perma.cc/fw69-8mb2] (detailing the youth advocates closed door session with staffers from u.s. senator bob casey’s office); juvenile law center, life after foster care: our stories, youtube (sept. 3, 2010), https://www.youtube.com/watch ?v=lqre4erumfa [perma.cc/kza7-bgyk] (showcasing the video project about life after care for youth who aged out of the system which was provided to state legislators and agency officials); juvenile law center, the willy show, episode 1, youtube (feb. 19, 2015), https://www.youtube.com/watch?v=6lzeg_xjhm8&list=pl2nvc5qku4nwoghbs_566jo3lkf tbwy2f [perma.cc/jw5x-yk68] (the willy show created by yfc advocates to discuss how to engage and empower youth in care). 12 see generally transition planning & independent living, juv. l. ctr., https://jlc. org/youth-fostering-change/transition-planning-independent-living [perma.cc/rtu8-wvrc] (last visited jan. 29, 2022); see also juveniles for justice's road map to reform, juv. l. ctr., https://jlc.org/road-map-reform-achieving-individualized-supports-youth-juvenilejustice-system [perma.cc/933f-9c26] (detailing work with the philadelphia district attorney’s office on a roadmap to reform). 464 colum. j. race & l. [vol. 12:459 the class is transformative for students’ understanding of what defines client centered lawyering and social work practice. students hear first-hand the experience of appearing in family court, having a caseworker determine what you can or cannot do as a high school student, and realizing that your family connections are not valued enough to support their continuation or growth. faculty and students have also learned a great deal from members in j4j, about the relationship between youth with dual status or dual system involvement in both the child welfare and justice systems. the advocates challenge the students to confront their assumptions about youth in foster care and to redefine their understanding of client centered lawyering. c. the symposium collaboration all of the youth advocate authors identify as persons of color including african american and latinx with lived experience in the child welfare system. their length of time in foster care ranged from two to eight years. each youth advocate reported that they were in multiple foster homes over the course of their time in care, and one youth advocate reported re-entering care after being discharged when they turned eighteen years old. all the youth advocates were placed in out-of-home care by the philadelphia department of human services and as a result were the subject of dependency cases in philadelphia family court with child advocate attorneys appointed to represent them. some of the advocates had prior interactions with the juvenile justice system and were also involved in the j4j program focusing on reform in the juvenile justice system. each of the advocates contributed substantial time, experience and input into the research process culminating in this piece and a video detailing their research and planning that was released at the symposium. with recent renewed attention to the issues of racial injustice and systemic racism in the child welfare system, the partnership was uniquely positioned to tackle the question of re-envisioning a child welfare system. with six discussion groups, targeted questions about the youth’s experience in the child welfare system and their proposals for reenvisioning the child welfare system directed the conversation. the discussion group questions were drafted by finck and hopkins, and provided to the youth advocates in advance. as the discussion groups continued, some youth identified needing time in advance, outside of the pre-scheduled remote sessions to write their responses . topic areas were divided into three distinct sections: the advocates’ lived experience in the foster care system, their diagnosis of the problems in the system, and how they would re-envision a new system to serve and support youth and families. group discussion questions included general questions about their experience in the system such as “which part or who represented ‘the system’ for you?” as well as the role of systemic racism in their placements and interactions within the system. in preparation for the symposium conference, the authors held multiple individual and group meetings for the youth advocates to brainstorm, edit and refine their presentation which ultimately included a videotaped presentation highlighting their reflections on the child welfare system, national statistics on outcomes for 2022] youth & families matter 465 older youth and a proposal for abolition and reconstruction of the child welfare system. the six young people have known and worked together for some time, and their deep respect for each other significantly benefited the discussion process. each of the youth advocates had previously presented to the interdisciplinary child advocacy clinic seminar on a range of topics including their experience in the system, proposed reforms, and best practices for client-centered child advocate attorneys. furthermore, the youth advocates had spent at least a year and a half together receiving training and support from the juvenile law center’s youth advocacy program leadership, and were working on reform projects and presentations. given the documented mistrust that youth in foster care have for authority figures, the formal and informal relationship building that happened prior to this project provided a strong foundation for the complex, emotional discussions concerning their time in foster care, perspective on the system and ideas for reform.13 as a result of their lived experiences in child welfare, pre-existing relationships and their comprehensive training in advocacy, systems reform, and public speaking through the youth advocacy program, the youth advocates were able to engage with the more aspirational but ultimately complicated question of how to re-envision the child welfare system. most importantly, they previously had multiple occasions to reflect on their time in foster care and determine what they were comfortable with disclosing and discussing throughout the process of collaborating on this piece and the presentation. the focus group process was collaborative at all stages with equal time afforded to each advocate in addition to the opportunity to review the questions in advance of the discussion, provide feedback on the questions, suggest additional questions or topics, and provide their responses to questions orally or in writing depending on the advocate’s preference. additionally, the advocates were provided with the opportunity to determine what they wished to disclose or have attributed to them individually throughout the process. the importance of trusting relationships, choice and transparent processes were critical to the endeavor and the creation of a truly collaborative process. youth advocates were also paid for all the time during this collaborative process. youth advocates received a minimum of fifty dollars, and up to a hundredand fifty-dollar stipend, per session. payments were not contingent on youth needing to complete all sessions, with the expectation that youth could choose to not continue at any time. youth advocates also received an hourly rate between fifteen and eighteen dollars depending on their number of years in the youth advocacy program for any individual work for this paper, this included but is not limited too; answering questions before remote sessions, and preparing with youth advocacy program staff, and professor kara finck, for the symposium presentation. this pay scale and stipend rate is based on the juvenile law center’s youth advocacy program pay scale. juvenile law center values 13 see saralyn ruff & kristi harrison, “ask me what i want”: community-based participatory research to explore transition-age foster youth’s use of support service, 108 child. and youth services rev. 104608 (2020). 466 colum. j. race & l. [vol. 12:459 the expertise of youth and believes that like many professionals, youth advocates must be compensated for their work, stories, and collaboration to reform systems. iii. older youth in foster care: a brief overview of the current state mr. simpson, a youth advocate leader who spent many years in foster care and was serving as the current youth advocacy alumni fellow, described the paradox of the child welfare system: it’s intended to be an intervention system that rescues children from emotionally or physically traumatizing home environments, but due to issues such as racial bias, workers antithetical to the overall mission statement and insufficient funding and/or training, [it] results currently in a system that usually becomes further trauma and hindrances on the child’s life.14 indeed, all the advocates noted that the system charged with protecting their safety, welfare and best interests caused additional trauma, instability and challenges in their life which persist to this day. research into the child welfare system consistently shows poor outcomes, particularly for older youth in foster care who are less likely to be adopted or to be in a family home once placed in foster care, but more likely to be underemployed, unemployed, incarcerated, or homeless upon discharge from foster care.15 even after decades of reform around the delivery of preventive and protective services, commensurate changes in the outcomes for older youth leaving the foster care system have been limited. individual families, programs or jurisdictions might report decreased time in placement or an increase in permanency for children, but nationally outcomes for older youth in care remain dismal. a quarter of the children in the foster care system are between the ages of fourteen and twenty-one, and they average more than three placements during their time in care.16 only twenty percent of older youth in care will attend college compared with sixty percent of their peers who are not in foster care17. 14 youth advocate symposium, supra note 1. 15 see mark e. courtney et al., midwest evaluation of the adult functioning of former foster youth: outcomes at age 23 and 24 (2010), https://www.chapinhall.org/wp-content/uploads/midwest-eval-outcomes-at-age-23-and24.pdf [perma.cc/r84g-uawg] (presenting the statistical analysis of the living characteristics of former foster children at ages twenty-three and twenty-four, including stats on employment status, education history, and familial history). 16 children in foster care by age group in the united states, annie e. casey found. (apr. 2022), https://datacenter.kidscount.org/data/tables/6244-children-in-fostercare-by-age-group [perma.cc/4re5-kqpg]. 17 see mark e. courtney et al., midwest evaluation of the adult functioning of former foster youth: outcomes at age 26 (2011), https://www. chapinhall.org/wp-content/uploads/midwest-eval-outcomes-at-age-26.pdf [perma.cc/73uxbx3s] (presenting the statistical analysis of the living characteristics of former foster children at age twenty-six, including stats on employment status, education history, and familial history); see also fostering success in education: national factsheet on the educational outcomes of children in foster care (jan. 2014), https://cdn.fc2success.org/wpcontent/uploads/2012/05/national-fact-sheet-on-the-educational-outcomes-of-children-infoster-care-jan-2014.pdf [perma.cc/66bp-vdja]. 2022] youth & families matter 467 employment opportunities for former foster youth are also lacking with one study reporting that only half of former foster youth are employed.18 former foster youth also face considerable housing instability with almost two-thirds of the young people who experienced homelessness within the first 30 months after leaving foster care doing so within the first 12 months of discharge from foster care.19 mr. price, a youth advocate who was in extended foster care, summarized the impact of the foster care system on older youth in care noting that “the longer a child has to go through these experiences [the more it] will affect their daily lives in relationship with themselves and others. this includes losing family connections, creating trust and abandonment issues, and leaving youth clueless about functioning in society.”20 iv. alienation, racism, and money—the residual sentiments of the foster system as described by youth advocates a. “it’s relocation, not removal” when discussing their entry into the child welfare system, the youth advocates consciously and routinely referred to their time in foster care not as a “removal,” a term more commonly used in legal and child welfare practice parlance, but as a “relocation.” the advocates purposefully labeled their experience of being taken from their parent’s care as “being relocated” throughout our discussions. the particular word choice, which was adopted and endorsed by all of the youth advocates, is significant and provides insight into the lived experience of a youth entering or remaining in foster care. while removal suggests the abolishment of something, in this case the child’s family and relations, relocation captures the physical act and centrality of the youth’s experience of being taken from their home and relocated to a new location which may or may not become a home, family or sense of stability for the youth. the youth themselves remained deeply attached to their families, speaking at length about their efforts to maintain the connections to family even when those efforts were thwarted by the child welfare agency. ms. andino, a youth advocate, recalled that “the system relocates us but our relationships with our families and community are not removed. they don’t value these relationships or help us foster and build on them. we fight to maintain contact and see and communicate with our families on our own.” rather than feeling protected by the child welfare system, all of the youth advocates reported a profound sense of alienation without feeling the benefits of a system designed to ensure their safety and well-being. as one example, mr. simpson noted that being relocated from his family didn’t improve his life, since “i would have stayed in one school and one home. i would not have moved around so much and would have built connections 18 jennifer l. hook & mark courtney, employment of former foster youth as young adults: evidence from the midwest study 3 (2010). 19 amy dworsky & mark courtney, assessing the impact of extending care beyond age 18 on homelessness: emerging findings from the midwest study 3–4 (2010), https://www.chapinhall.org/wp-content/uploads/midwest_ib2_homelessness.pdf [perma.cc/rl2d-8mfn]. 20 youth advocate symposium, supra note 1. 468 colum. j. race & l. [vol. 12:459 and actually learned something.”21 ms. christopher, a youth advocate, described how her time in the foster care system resulted in feeling “almost like you’re a stranger to everyone depending on home visit privileges, you can even feel alienated from your home and community around you.”22 being relocated significantly impacted youths’ sense of belonging to their family of origin and community. mr. price explained: “[s]ince i entered foster care young, i lost connections with my family and friends. it has not been the same when i exited out of care. some of my family members and friends don’t understand where i’m coming from and who i am, which is very disappointing.”23 ms. christopher noted: when i see them now, i see you as a stranger and know nothing about you. once you grow up, that’s your foundation of life and before everyone was close knit but then you get out and you are isolated from everyone and they don’t know me and don’t know what to say or what to do.”24 ms. andino concluded that “if the system valued youth [and] families with lived experience . . . [m]aybe they would see how important our families, kin, and friends, our community is to us and that we are family. they would see a clear picture that they relocate us: but do not remove us from our families.”25 b. “black families don’t matter” when questioned about the role of systemic racism in the foster care system, the advocates emphasized that it was a daily part of their experience in the system and their lives. as scholars have noted, the child welfare system “is structured by codified practices that support the status quo of racial hierarchies.”26 all of the youth advocates shared the pervasive sense of disrespect and dehumanization that stems from the systemic racism in the child welfare system. indeed, in the group discussions, the question about systemic racism in the child welfare system was regarded as a point so obvious that it did not merit the question of whether it impacted their time in care. ms. christopher noted that “race plays a part every day, so outside the basics of microaggressions and colorism and purposeful pronoun mistakes those things didn’t necessarily impact my experience simply because i’ve become used to them.”27 mr. simpson reflected that “the system is inherently racist. they strip youth of their culture and their community. this ideology bleeds into the experiences of youth in the system, specifically young black men who are often seen as 21 id. 22 id. 23 id. 24 id. 25 id. 26 darcey h. merritt, lived experiences of racism among child welfare-involved parents, 13 race and soc. probs. 63, 64 (2021) (summarizing research on racism within the child welfare system and in the delivery of services to parents and children and noting that “the lived experiences and perceptions of racism, while navigating such systems, are directly related to being among the lower echelons of our society with diminished access to power, knowledge and optimal resources to thrive in our society”). 27 youth advocate symposium, supra note 1. 2022] youth & families matter 469 super-predators and more dangerous than their other peers.”28 mr. price noted that: [t]he system already has a perception of what black families need and who they are; the system lumps all black families and families of color together; it does not respect or value that each family is different. the system thinks they know and can do better than families of color on how to make things better and take care of the family.29 the history of systemic racism and the oppressive nature of social welfare services on black families has been widely documented and studied.30 nationally, youth of color are more likely to be placed in the foster care system than their white counterparts.31 other scholars such as alan j. dettlaff et al. have examined racial disparities in child welfare and found that even when there are less risk factors of maltreatment for black children, they are still more likely to be removed from their homes compared to white children.32 additional data from the children’s defense fund, 2020 found that black and native families have their children removed at much higher rates and have lower rates of reunification with their children than white families. for ms. christopher, that statistic underscored her time in care: “race plays a big part from the beginning, and everyone looks like us in the facilities. every place i moved into, everyone there was of color. that plays a huge part. because we are not the only ones that did something or truancy, but we are the only ones that get punished for it.”33 ms. andino wrote: [race] definitely played a direct role in my initial involvement, through dhs admitted practices of having more reports be from areas often redlined, directly affecting black and brown families at a much higher rate so i know my likelihood of involvement and socioeconomic factors that come with being born black in america had a lot to do with my relationship with the child welfare system.34 the youth advocates proposed formally incorporating individuals with lived experience and expertise in child welfare practice and reform to combat the impact of systemic racism which results in child welfare 28 id. 29 id. 30 see darcey h. merritt, how do families experience and interact with cps?, 692 annals of the am. acad. 203, 204–205 (2020) (summarizing the research on “oppressive and discriminatory oversight across multiple social welfare and human service systems”). 31 see child. bureau, u.s. dep’t of health & hum. services, child maltreatment 2018 39 (2020), https://www.acf.hhs.gov/sites/default/files/documents/cb/ cm2018.pdf [perma.cc/dvq2-ppm9]. 32 see alan j. dettlaff et. al., disentangling substantiation: the influence of race, income, and risk on the substantiation decision in child welfare, 33 child. & youth servs. rev., 1630, 1635 (2011) (“[w]hile controlling for risk and income, race was a significant predictor of the removal decision, with african american children significantly more likely than white children to be removed in lieu of receiving inhome services . . . . african americans were assessed as having lower risk than white families”). 33 youth advocate symposium, supra note 1. 34 id. 470 colum. j. race & l. [vol. 12:459 agencies and stakeholders believing that they know what is best for a family or a community of color. as one model, the youth advocates highlighted their training program which is founded on the importance of targeted storytelling as a way of shifting the monolithic narrative about youth in care, their experiences and their needs which is far too often founded in racist assumptions. c. “it’s just about the money” one of the final themes to emerge during our discussions was the perception that the child welfare system is guided by financial considerations at the expense of the youth and their families. one advocate commented that “[t]hey place youth all over the place and not really do anything. they are treated as numbers and not individuals throughout their time in the system and afterwards.”35 mr. simpson described his view of the current system as “culture is more about bureaucracy then actually doing the work and that just permeates the system and that becomes its downfall.”36 mr. watson, a youth advocate who had recently aged out of the foster care system, reflected that: [e]verything is wrong with it right now. people don’t care about the kids in the system, and they just care about their jobs. it doesn’t really help you and you age out and you are homeless. these things could have been prevented if people in the child welfare system ‘actually’ cared. people don’t care because it’s not their kids.37 while the child welfare system aims to provide supportive services to youth and families, the advocates’ experience of receiving services contrasted sharply with that stated goal of support and empowerment. when remembering the services that were offered to him, mr. price shared his belief that “i felt that my race stopped me from receiving the a+ services that i would have if i was white. it seems like just because i’m a black person, it looks like the system has a perspective that all black youth do not need a+ services.”38 advocates also spoke about how the services were not individualized to their families’ needs or particularly youth and child centered in their delivery. ms. christopher recalled how she felt her caseworker treated her and her family “as if [she] had done this this a thousand times and had no regard for the family and just wanted to get the job done. even annoyed at how long the goodbyes took.”39 the youth advocates emphasized how services were offered to them without consideration of their family’s needs. furthermore, they uniformly spoke about the need for concrete supports and resources which were not provided. research supports the youth advocates’ experience about accessing services in the system with one of the few studies of how transition age youth utilize supportive services concluding that youth “desire a deconstruction of the assumptions that drive these systems, 35 id. 36 id. 37 id. 38 id. 39 id. 2022] youth & families matter 471 including a shift from assumptions about deficits and problems, to assumptions about autonomy and resourcefulness.”40 as the children’s bureau noted in a recent public memorandum discussing the role of youth and parents in the system,“[w]hile some families and youth provide positive reports of their interaction with the child welfare system, more typically, the words they use include, for example, overwhelmed, confused, voiceless, judged, ashamed, angry and sad.”41 in other words, the system’s goals are clearly not being met if you listen to the experiences of youth and families in the system. v. a radical reprioritization of values for a family justice system through the inclusion of youth and families with lived experience and expertise twenty years ago, professor roberts noted in her prologue to shattered bonds “[t]he color of america’s child welfare system is the reason that americans have tolerated its destructiveness. it is also the most powerful reason to finally abolish what we now call child protection and replace it with a system that really promotes children’s welfare.”42 those words are equally applicable today with the continued disproportionate placement of children of color in the child welfare system and documented poor outcomes for children and youth who are placed in the state’s care. historically, nationwide data demonstrates that removal is relied on far too often, and recent studies show that even short stays in foster care are damaging to children’s well-being and long-term functioning. as the children’s bureau noted, “a child welfare system that is designed to respect and strengthen families and communities must do more than respond to incidences of maltreatment. it must also be designed to promote family integrity, self-sufficiency and the personal agency of families and youth.”43 recognizing that a fundamental reconstruction or abolition of the child welfare system may not be a realistic short-term goal, the youth advocates agreed that the immediate step of meaningfully incorporating youth and parents with lived experience in reform and policy efforts was a critical and realistic step towards a more just system for families. this would represent a fundamental shift in power away from child welfare officials and towards children, parents and communities. professor roberts spoke of this realignment decades ago when she expressed “[t]ackling racism requires altering relationships of power. changing the relationship between child welfare agencies and the communities they serve means giving the clients more say in the way the system operates.”44 40 id. 41 child. bureau, u.s. dep’t of health & hum. servs., engaging, empowering, and utilizing family and youth voice in all aspects of child welfare to drive case planning and system improvement (2019), https://www.familyfirstact. org/sites/default/files/acyf-cb-im-19-03_cb%20information%20memorandum_family% 20youth%20voice%20.pdf [perma.cc/d53d-spu4] (encouraging child-welfare agencies to incorporate family and youth voices in program planning and improvement efforts). 42 roberts, supra note 5, at x. 43 child. bureau, supra note 41, at 2. 44 roberts, supra note 5, at 272. 472 colum. j. race & l. [vol. 12:459 indeed the premise underlying the inclusion of lived experiences is that youth and families are the experts in their own lives and that expertise is critical to developing policies and practices that support families and communities. historically, the voices and participation of youth and families in the child welfare system were silenced or ignored by decision makers in the family court and child welfare systems, treating them as passive recipients of services instead of active collaborative partners in the creation, functioning and reform of the system.45 tellingly, the children’s bureau guidance noted that, “[f]amilies and youth are our best sources of information about the strengths and needs of their families and communities, yet, historically, we make decisions and plans in the absence of their input. moreover, where input is sought, it may not receive meaningful consideration.”46 only recently did county and state child welfare agencies start inviting the meaningful participation of youth and parents with lived experience in the system.47 the inclusion of youth and parent organizations was a hard-won battle which originated from the grassroots mobilization efforts of youth and parents in local jurisdictions. in 2019, the children’s bureau issued guidelines for state child welfare agencies encouraging local and state child welfare agencies to actively solicit participation and input from children, youth and parents involved in the system.48 the agency’s public memorandum described the necessity of this reform stating: hiring family members and youth with lived experience into leadership positions at the agency, county, and state level is an important way to ensure a representative voice in every aspect of the child welfare system. if there are not formal processes or structures for families and youth to provide input and feedback at various levels of the child welfare system, creating those forums should be a priority.49 youth voice, engagement and empowerment was defined in the guidance as “giving families and youth the opportunity to be heard and to use their input in making critical decisions that affect their lives. it also 45 see generally astraea augsberger et. al., i didn’t know you were fighting so hard for me: attorneys’ perceptions of youth participation in child dependency proceedings, 54 family court review 578 (2016). 46 child. bureau, supra note 41, at 3. 47 see generally delaware youth advisory council, facebook, https://www. facebook.com/yacdelaware/ [perma.cc/7w3p-ezvw] (last visited may 23, 2022); see also youth leadership councils, minn. dep’t of hum. servs., https://mn.gov/dhs/people-weserve/children-and-families/services/adolescent-services/programs-services/youthleadership-councils.jsp [perma.cc/5hb3-vkl2] (last visited may 23, 2021); see also state youth advisory board, mo. dep’t of social services, https://dss.mo.gov/cd/older-youthprogram/syab.htm [perma.cc/h873-52rm] (last visited may 23, 2022); youth advisory board, n.j. dep’t of child. & fam., , https://www.nj.gov/dcf/adolescent/involved/advocacy/ [perma.cc/k73f-g66b] (last visited may 23, 2022); youth and young adult services, n.y. office of child. & fam., https://ocfs.ny.gov/programs/youth/yab/ [perma.cc/2mqg-4w8u] (last visited may 23, 2022); fla. stat. §409.1451(7) (2012) (detailing the establishment of an independent living services advisory council and requiring the participation of young adults receiving services or funding through the road-to-independence program). 48 child. bureau, supra note 41, at 2. 49 id. at 6 & n.12. 2022] youth & families matter 473 refers to soliciting and using the perceptions, experiences and recommendations of families and youth in child welfare to make systemlevel improvements.”50 the discussion around reform in the child welfare system remains stubbornly and persistently devoid of meaningful discourse from and with the main participants of the child welfare system—youth and families of color. reconstruction of the system requires a commitment to equalizing the participation of youth and families with lived experience in all aspects of reform including research, policy and practice and creating institutional structures to support the emotional, physical and intellectual labor associated with the work of individuals with lived experiences. while the recent focus on inclusion of those with lived experience is important, it falls short in providing a clear structure for engaging with individuals, creating supportive structures for their involvement, and prioritizing their perspective and expertise. this includes not only acknowledging the systemic racism throughout the system but moving beyond inclusion of youth and parents with lived experiences on panels or in working groups to true partnership with youth and families where they have an equal decision-making power with child welfare officials and stakeholders. in most instances, there is insufficient or non-existent institutional and financial support for the work of parent and youth organizations as partners in the child welfare system. the training and support provided by the youth advocacy program model are critical factors to effectively incorporate youth voice. the components of the model avoid further disengagement and alienation of the community and ensure that individuals are compensated and respected for their time and expertise.51 when discussing the role of lived experience in policy making and reform, the youth advocates noted that lived experience could mean a range of interactions and experiences with the child welfare system. the notion that there was a monolithic perspective from youth formerly in care was misplaced. at its core, lived experiences are individualized by their very nature but in aggregate allow policy makers and stakeholders to understand common themes and interactions with a system. for example, each of the youth advocates spent a range of time in out of home placements and entered foster care for different reasons. as a result, their perspective of foster parents, group homes and caseworker practice varied. however, their overall sense that the stakeholders in the system including judges, caseworkers and child advocate attorneys did not value their perspective or experience when they were in foster care was shared by all regardless of the time spent and specifics of the type of placement. furthermore, their overwhelmingly negative conclusions about the system as a whole and their desire for abolition and reconstruction of a family-based justice system provides critical feedback to policy makers interested in meaningful reform. with regards to research, there is a noticeable dearth of legal and social sciences research which incorporates the meaningful participation of youth and parents in the child welfare system with a focus on reform. as 50 id. at 2–3. 51 moffa, supra note 8, at 13–16. 474 colum. j. race & l. [vol. 12:459 one researcher noted the “[r]ecent reviews of action research with children and adolescents indicate that only a small fraction of research actually involves young people as active collaborators in the research process.”52 a review of legal and social work literature discovered only a handful of articles incorporating the perspectives of youth and families in the research or writing.53 this lack of inclusion in research and scholarly works is significant and ultimately contributes to the continuing devaluing of the perspective and expertise of youth and families in the child welfare system on how to support families and ensure safety for children in their communities. this lack of inclusion for youth and parent voices, could also be correlated to why the system has been unable to truly create reforms that are lasting, and effective at dramatically reducing the over representation of black and brown youth in the system. family and youth experience and expertise is not only important to hear, but critical to making effective lasting reforms as they would be designed by those most effected by the system. there are several research methods incorporating individuals with lived experience such as participatory action research, community based participatory research and collaborative partnerships that have successfully been used in healthcare and mental health research. these methods and models could be adapted in the child welfare field to elevate the expertise and perspectives of individuals with lived experience. potential challenges to the research such as overcoming the inherent differential in power and authority between researchers and individuals with lived experience and creating structures that support the individuals with lived experience training and work have also been addressed in those fields. additionally, youth and parents with lived experience in the child welfare system may not trust researchers or policymakers precisely because of their association with the child welfare system. finally, there may not be established avenues for identifying and supporting individuals with lived experience to participate in these endeavors. these challenges are not insurmountable and should not deter current efforts at reform and action-based research from including the perspective of individuals with lived experience. the youth advocates concluded that any reform efforts must include the perspective of children, youth and families currently or formerly impacted by the child welfare system. if the goals of the research and reform initiatives are to improve services and supports to youth and families and to reconstruct a just family support system, then it must incorporate the lived experiences of those same youth and families.54 52 ruff & harrison, supra note 13, at 2. (describing the literature review focused on the involvement of foster youth as collaborators in research and concluding that the “lack of research utilizing youth as participants or co-investigators appears to be particularly pronounced in research concerning foster youth”). 53 miranda j. cunningham & marcelo diversi, aging out: youths’ perspectives on foster care and the transition to independence, 12 qualitative soc. work 587, 588 (2013) (noting that the “literature offers relatively few examples detailing the perspectives of former foster youth”). 54 see merritt, supra note 30, at 204 (highlighting the lack of research involving the perspective of families with lived experience in the child welfare system and the necessity of 2022] youth & families matter 475 researchers, policymakers and academics from all disciplines involved in the child welfare system therefore must prioritize the creation, identification and implementation of research efforts that partner with individuals with lived experience. this reprioritization will not only improve the type of research informing current child welfare policy but also begin to shift the balance of power more equitably towards youth and families. policymakers must commit to a fundamentally new model that is in partnership with individuals with lived experience, creating spaces where those experiences can be shared and supported in a safe way that is not retraumatizing. additionally, the same support that would be provided to any other stakeholder with decision making authority in the child welfare system should be provided to individuals with lived experience. this means providing compensation for the time and expertise of individuals with lived experience for all of their participation in speaking engagements, trainings, and focus groups. furthermore, individuals with lived experience should have training provided to them in a range of issues to support their work and growth including political action, narrative advocacy, trauma, and storytelling. finally, mentors and clear processes for support must be provided to individuals with lived experience since they are being asked to reflect and publicize their own histories of trauma and discrimination. the emotional and psychological labor implicit in this work is significant and must be considered as part of any process to engage and incorporate the work of individuals with lived experience. there are several ways to incorporate this collaboration in a meaningful way that will shift the existing power balance between child welfare stakeholders and youth and families with lived experience. first, youth and family advocates can train attorneys and judges as part of their initial onboarding, supplementing their legal education. the training by youth and family advocates can serve as a prerequisite to certification by the court or to a bench appointment. this can be accomplished through the presence of parent or youth advocates as staff members or by partnering with local youth and parent organizations to conduct frequent trainings. the youth advocates model presentation to icac law and social work students could be expanded to include sessions on engaging with youth and families as client partners, advocating for services, and empowering youth and families in court. second, child welfare agencies should invest in having individuals with lived experience embedded in the agency and any contract organizations, including foster care agencies, to help guide policies and practices and most importantly reform efforts. finally, organizations dedicated to reform or reconstruction of the child welfare system can fund and incorporate programs for individuals with lived expertise to train as advocates utilizing youth and family empowerment models.55 vi. conclusion ultimately, any system designed to support and empower families should not only be informed by the lived experience of such families but understanding “their experiences with this system and the ways in which they view it as helpful or harmful”). 55 see moffa, supra note 8. 476 colum. j. race & l. [vol. 12:459 should further seek to promote partnership and shared decision making with youth, parents and communities. our systemic failure to elevate and respect the voices of youth and families perpetuates a racist and deficitbased narrative about the communities impacted by the child welfare system. the engagement of youth and families in the child welfare system on its own, however, is insufficient unless it is matched by participation and commensurate power for those same individuals. reorientation requires child welfare leadership at the federal, state and local level to acknowledge and address the system’s historical failures to provide just processes and outcomes for children and families and to actively shift decision making authority. as mr. price concluded to the symposium audience, “to the social workers and leaders in the child welfare system: if it was your family, would you all do the exact same thing, with the same rules and regulations, and stipulations to your family that you did to ours? if you had the opportunity to take what we received, would you accept it without any hesitation?”56 until that question can be answered in the affirmative, justice for youth and families will be shattered instead of strengthened. youth and their families deserve a better response from society. they deserve a response that affirms their experiences, values them and their families, and where we (society) work intentionally to reconstruct a new and better structure alongside them, designed to preserve and protect their families. 56 youth advocate symposium, supra note 1. i. introduction ii. the collaboration: juvenile law center’s youth advocacy program projects, youth fostering change and juveniles for justice, and the penn law interdisciplinary child advocacy clinic a. juvenile law center’s youth advocacy program b. penn carey law’s interdisciplinary child advocacy clinic c. the symposium collaboration iii. older youth in foster care: a brief overview of the current state iv. alienation, racism, and money—the residual sentiments of the foster system as described by youth advocates a. “it’s relocation, not removal” b. “black families don’t matter” c. “it’s just about the money” v. a radical reprioritization of values for a family justice system through the inclusion of youth and families with lived experience and expertise vi. conclusion overreporting and investigations formatted (al edits 5.12.2025) (2) columbia journal of race and law vol. 15 may 2025 no. 1 article overreporting and investigation in the new york city child welfare system: a child’s perspective daniella rohr* & melissa friedman†1 child welfare agencies are tasked with protecting children, and in so doing, with investigating allegations of abuse and neglect. if done properly, such investigations can promote child safety. but the data suggests that new york city’s administration for children’s services (“acs”) subjects far more children and families to intrusive investigations than is necessary. nearly 100,000 children in new york city are investigated by the acs each year, and acs only seeks entry or body-search warrants in 0.4% of investigations. moreover, the vast majority of these investigations are executed in homes where acs ultimately decides that it is unlikely any abuse or neglect occurred. such investigations come at a high cost to children: they are aggressive, traumatic, and coercive. this piece argues that acs’ investigative apparatus not only harms more children than it protects, but the tactics it employs violate the state and federal constitutional rights of children and their families. using acs’ own statistics, this piece demonstrates that new york unnecessarily investigates far too many, primarily black and brown families; examines the harmful, and often unlawful reporting and investigation process in new york city; and enumerates reforms critical to protect both the safety and privacy rights of new york city’s children and families. * daniella rohr is a staff attorney at the immigration law unit of the legal aid society, and previously worked in the juvenile rights practice. daniella graduated summa cum laude from the university of pennsylvania with a bachelor’s degree in american history. she received her juris doctor from yale law school and began her career at the legal aid society as a skadden fellow. † melissa friedman is the attorney in charge of legal strategy and training at the legal aid society’s juvenile rights practice. melissa attended washington university in st. louis, where she received her undergraduate degree summa cum laude in latin american studies and spanish. she later attended harvard law school and began her work at the legal aid society as a skadden fellow. 1 we would like to thank the enormous team that supported this paper. dawne mitchell, judy stern, riti singh, nora mccarthy, justin horton, anna blondell, lena mcmahon, and fiona donovan. finally, many thanks to the pro bono team that supported our initial research including emily grasso, julia malkina, chase shelton, elias daiute, zacharia hasan, and lydia murray. 2025] overreporting and investigation 1161 introduction .......................................................................................... 1162 i. new york reporting and investigations by the numbers ... 1163 ii. reporting and investigating process in new york ............... 1165 a. the origins of child welfare reporting and investigation practices are racist and inextricably linked to slavery ........ 1165 b. current practices lead to overreporting and over-investigation 1166 c. reporting and investigations in new york city are invasive, punitive, and coercive .............................................................. 1170 iii. acs investigations violate the rights of children and their families ............................................................................................ 1173 a. children have a statutory right to privacy .............................. 1173 b. acs investigations routinely violate children and their families’ rights to privacy ....................................................... 1177 iv. overreporting and investigation cause children significant harm ................................................................................................. 1179 v. recommendations ......................................................................... 1182 a. new york must eliminate mandatory reporting and forego capta funding ........................................................................ 1182 b. new york must strengthen scr screen-out protocols to prevent unnecessary investigations ...................................................... 1184 c. acs must minimize the invasiveness of investigations, including reducing reliance on middle-of-the-night searches, strip searches, and in-school interventions ........................... 1185 d. implementing the above recommendations to reduce the number of investigations also reduces the cost of investigations–savings that should be used to support families ...................................................................................... 1187 e. new york must enact legislation to protect against harmful and unnecessary investigations ............................................... 1188 1. new york must pass the anti-harassment in reporting bill to reduce the number of children unnecessarily subjected to investigations ............................................................................ 1188 2. new york must pass the family miranda bill and add specific reference to children’s rights to curtail extra-judicial intrusion, minimizing trauma ................................................ 1189 3. new york must pass the informed consent act to reduce inappropriate scr reports ...................................................... 1191 conclusion ............................................................................................. 1192 1162 colum. j. of race & l. [vol. 15:1160 introduction imagine you are eight years old. officials from the administration for children’s services (acs)—new york city’s child protective services agency—bang on your door in the middle of the night and demand to enter. these government agents do not meaningfully explain that you and your parent(s) have a right to turn them away. instead, the acs officials tell you that if you refuse to let them into your home, they can take you from your parent(s), call the police, and take your family to court. you and your family feel that you have no choice but to let them in. once inside your home, the acs worker—a stranger—takes you into a room, alone and separated from your parents, to interrogate and strip-search you. and they do all of this without a court order. acs investigates nearly 100,000 children in new york city for abuse and/or neglect each year,2 but it seeks warrants to enter homes or search children’s bodies in only 0.4% of those investigations.3 these searches are aggressive, traumatic, coercive, and violate children’s and families’ federal and state constitutional rights. if done lawfully, abuse and neglect investigations should promote child safety. but the data suggests that acs often conducts intrusive investigations that may harm the families they are meant to protect. only a small fraction (22.5%) of acs investigations annually are substantiated—that is, they conclude that the occurrence of abuse and neglect was more likely than not in only a few investigations each year.4 that means that approximately 77,500 children, who are mostly black and brown, are subjected to investigations of their homes and bodies without substantiation of a maltreatment allegation. this piece argues that acs’ investigative apparatus not only harms more children than it protects, but also employs tactics that violate the state and federal constitutional rights of children and their families. using acs’ own statistics, part i analyzes the numbers to demonstrate that new 2 demographics of children and parents at steps in the child welfare system, fy 2023, n.y.c. admin. for child. servs. (2023), demographics-children-fy-2023.pdf (nyc.gov). 3 eli hager, police need warrants to search homes. child welfare agents almost never get one., propublica (oct. 13, 2022, 8:00 am), https://www.propublica.org/article/child-welfare-search-seizure-without-warrants (cited 0.2%. the most recent statistics for 2023 indicate a 0.4% rate of orders sought under new york family court act §1034 (“1034 orders”)). the most recent acs flash report indicates that in calendar year 2023 there were 42,816 consolidated investigations along with 10,054 cares cases. we include cares cases in investigative numbers because we believe they still represent that intervention in families and the processes are nearly identical to those of investigations, especially in the first 7 days when determining if a case should be fully investigated or diverted to cares. see nyc children flash report monthly indicators, n.y.c. admin. for child. servs., at 5–6 (may 2024), https://www.nyc.gov/assets/acs/pdf/data-analysis/flashreports/2024/05.pdf. in this time period, we know that acs sought 222 1034 orders. child welfare indicators annual report cy 2023, nyc opendata (apr. 29, 2025), https://data.cityofnewyork.us/socialservices/child-welfare-indicators-annual-and-quarterly-repo/3m2q-9maw/about_data. doing the math, the current rate of entry and production orders sought is 0.4%. 4 nyc children flash report monthly indicators, n.y.c. admin. for child. servs., at 9 (june 2024), https://www.nyc.gov/assets/acs/pdf/dataanalysis/flashreports/2024/06.pdf. 2025] overreporting and investigation 1163 york unnecessarily investigates far too many, primarily black and brown, families. part ii details the reporting and investigation process in new york state and city and argues that the reporting and investigation process in new york city is coercive, punitive, and inextricably linked to the vestiges of slavery. part iii outlines the legal framework that applies to child welfare investigations, and argues that acs investigations routinely violate children’s and their families’ fourth amendment and state constitutional freedom from unreasonable searches and seizures. part iv describes the harms that children and families suffer from this violation and from acs’ current practices. part v lays out essential steps for reform. i. new york reporting and investigations by the numbers the statistics on reporting and investigation in new york city make clear that the child welfare system’s culture and practices must change. by the age of eighteen, 44% of black children and 43% of latine children in new york city will be investigated by acs5 as compared to a 19% of white children.6 according to acs itself, only 22.5% of child welfare investigations were substantiated in 2023.7 in 2023, 95,590 children were subject to investigation in nyc.8 that means approximately 74,082 children were investigated without substantiated allegations of neglect or abuse in the last year alone.9 experts also assert that approximately one third of cases that new york investigates should never have been investigated in the first place.10 therefore, 33,545 children a year are subjected to intrusive investigations that never should have begun. the numbers demonstrate an overinclusive child welfare apparatus that needlessly traumatizes and surveils thousands of children and families every year.11 even acs’ own commissioner, jess dannhauser, has acknowledged that certain acs investigations are “unnecessary,” saying 5 see caterina pisciotta & nora mccarthy, hotline calls, nyc fam. pol’y project, https://familypolicynyc.org/data-brief/hotline-calls/ (last visited july 28, 2023). 6 see cat pisciotta & nora mccarthy, racial disparities, nyc fam. pol’y project, https://familypolicynyc.org/data-brief/racial-disparities/ (last visited july 28, 2023). 7 nyc children flash report, supra note 4. 8 demographics of children and parents at steps in the child welfare system, fy 2023, supra note 2, at 1–2. we are including cases diverted to differential response in our investigation numbers for the purposes of these statistics. 9 we do not know if these are all unique children, so we admit this number could include repeat investigations, though the language in the document seems to indicate unique children. 10 see nora mccarthy, no filter, nyc fam. pol’y project (mar. 5, 2024), https://familypolicynyc.org/report/scr/ (conversation with the author of the report revealing that “because the scr is screening out such a low percent of reports (and because acs itself reports that they receive many reports that should not have been screened in), we can surmise that at least one-third of all of these cases should not have been screened in and investigated.”) (notes on file with author dated july 11, 2024). 11 it is important to note that the rates of substantiation have dropped since 2022, which is likely due to the change in the legal standard for indicating a case. n.y. soc. serv. law § 412(7)(ii) (mckinney 2022); see also michael fitzgerald, new york limits access to parents’ names on child abuse and neglect registry, the imprint (apr. 3, 2020), https://imprintnews.org/news-2/new-york-access-names-neglect-registry/42044 (describing 2020 legislation raising the standard for cps indication determinations from “some credible evidence” to a “fair preponderance”). 1164 colum. j. of race & l. [vol. 15:1160 that, “too many families of color in nyc have reports called into the state and are then subject to an unnecessary child protection investigation . . . [and] this large volume of calls distracts us from our effort to protect children truly in danger.”12 even the statistics on substantiated reports paint a picture of an overzealous reporting system. calls by mandated reporters—individuals trained to identify and report abuse or neglect—are substantiated at an average rate of 27%.13 for example, education personnel have a 14% substantiation rate, and medical professionals have a rate of 24%.14 calls made by friends and family are substantiated 8.9% of the time and anonymous reports are only substantiated at 6.7%..15 in zip codes with higher poverty rates, social service workers called in a higher percentage of cases than in communities with lower rates, confirming the correlation between increased allegations of abuse and neglect and poverty.16 as neglect is often confused with poverty, it is unsurprising that well over half of hotline calls solely reference neglect, and nearly all of these calls include at least one neglect allegation.17 the statistics on race, reporting, and investigations in new york city are similarly shocking. race, particularly if you are black, is strongly determinative of family regulation system involvement. as noted above, nearly 45% of black and latine children experience an investigation of their family by age eighteen, whereas only 19% of white nyc children face investigation.18 interestingly, neighborhood-level socioeconomic conditions are not a protective factor against racially-disproportionate acs investigations—in new york city neighborhoods where overall child poverty rates are lower, black children still face investigations at staggeringly high rates.19 in those neighborhoods, which are usually predominantly white, black children are investigated far more often than their white neighbors. these numbers reveal that 15% of black children in predominantly white communities will face an investigation, as compared to a city-wide average of 6%.20 acs’ own analysis confirms this trend: out of a total 95,590 children named in state central register (scr) intakes in 2023, 44,249 (46.3%) were latine, and 35,164 (36.8%) were black.21 12 jess dannhauser, testimony to the new york city council general welfare committee, n.y.c. admin. for child. servs. (mar. 13, 2023), at 2 https://www.nyc.gov/assets/acs/pdf/testimony/2023/prelim-budget-hearing-fy24.pdf. (on file with author.) 13 see hotline calls, supra note 5. 14 id. 15 id. 16 id. 17 id. 18 see racial disparities, supra note 6. 19 id. (stating also “citywide child poverty rates do not correlate with child welfare involvement rates by race” and “black children are extraordinarily vulnerable to investigations no matter how rich or poor the neighborhood they live in”). 20 racial disparities, supra note 6. many of these zip codes have public housing complexes. 21 demographics of children and parents at steps in the child welfare system, fy 2023, supra note 2. citizens’ committee for children (ccc) made similar findings using 2021 data. see children in child abuse and neglect investigations, citizens’ comm. for children of n.y., https://data.cccnewyork.org/data/bar/1/children-in-child-abuse-and 2025] overreporting and investigation 1165 these figures are disproportionate to the latine and black populations of new york city. according to the 2023 u.s. census, 22.7% of the population of new york is black; 28.4% is latine.22 the ratio of children involved in substantiated versus unsubstantiated investigations was higher for black and latine children than for white and asian children as well.23 combined, these statistics demonstrate that the reporting and investigation apparatus is dramatically overreaching, unnecessarily putting far too many children—and particularly children of color—in its crosshairs. ii. reporting and investigating process in new york a. the origins of child welfare reporting and investigation practices are racist and inextricably linked to slavery it is widely understood that the child welfare system is an institution tethered to slavery and rife with racism.24 family separation was a cornerstone of slavery, used to preserve slave-owner dominance, and continued in post-slavery laws that perpetuated separation between black children and their parents25 the government’s exclusion of black people from social support systems post-slavery laid the groundwork for the modern-day child welfare system, and specifically the reporting and investigatory apparatus. for example, in the 1930s, black mothers were excluded from government pensions for widowed women, and when aid to dependent children was enacted, localities could set eligibility criteria, often excluding black parents.26 in the 1950s, during school desegregation, many states passed laws requiring a child’s home to be “suitable” for receipt of public aid— tethering eligibility for aid to biased notions of parental fitness, again excluding black families.27 in the 1960s, state courts overturned suitability laws, but allowed families where children were removed from their homes to be excluded from public aid.28 consequently, when states investigated families to determine if they required aid, they began removing children at neglect-investigations#1383/17,12,10,9,99/1/1633/99 (last visited july 13, 2023) (reporting in 2021, there were 23,003 and 25,242 investigations against black and latine families, respectively, compared with just 4,270 and 2,872 investigations against white and asian families, respectively). 22 see quickfacts: new york city, new york, u.s. census bureau, https://www.census.gov/quickfacts/newyorkcitynewyork (last visited july 13, 2023). 23 demographics of children and parents at steps in the child welfare system, fy 2023, supra note 2, at 1. 24 ernestine gray, aba resolution 606, am. bar ass’n, at 4 (aug. 2022), https://www.americanbar.org/content/dam/aba/administrative/news/2022/08/hodresolutions/606.pdf. see also dorothy roberts, shattered bonds: the color of child welfare (2001). 25 id. at 5. (for example, under vagrancy laws, unemployed people were imprisoned and forced into chain gangs or direct service to former enslavers, separating them from their families.) 26 id. at 5. 27 id. at 6. (statements from legislators at the time showing that, “‘these exclusions were not based on actual fitness determinations, but were instead designed to push black families out of the community to limit their children’s school enrollment.’”) 28 id. at 6–7. 1166 colum. j. of race & l. [vol. 15:1160 rapidly increasing rates.29 instead of providing aid to families to help avoid removals, congress earmarked social security funds to care for children who were placed out of their homes.30 in one year, from 1961–1962, rates of post-investigation child removals skyrocketed 67%.31 critically, the new york family court act was written and published in 1964 amidst this forceful political climate. the federal scheme has not changed meaningfully in the over seventy years since its enactment. newer laws, building on the laws enacted in the 1950s and 60s, continue to perpetuate inequality. in 1974, the child abuse prevention and treatment act (capta) preserved broad definitions of abuse and neglect akin to earlier suitability requirements.32 the law also established and tethered federal reimbursement for states to existence of mandated reporters, individuals required to make reports about suspected abuse or neglect.33 given the direct connection between the child welfare system, slavery, post-slavery anti-black family laws, and modern-day reporting, it is unsurprising that children of color are investigated at much higher rates than white children. disproportionate investigation rates are therefore not an accident, but a reflection of the child welfare system’s history and design. b. current practices lead to overreporting and over-investigation in new york state, a child welfare investigation begins with a call—or “report”—to the new york state central register (scr), which operates under the state’s office of children and family services (ocfs).34 anyone who suspects child abuse or neglect can call in a report, and may even do so anonymously.35 certain individuals, known as “mandated reporters”, must report suspected abuse or neglect. these reporter” include physicians, psychologists, nurses, social workers, hospital personnel, school officials, and other similarly situated professionals.36 during an scr call, which usually lasts approximately twenty to thirty minutes, scr staff determines whether the allegations require an investigation, or whether the call should be “screened out” based on their assessment of new york law’s required elements of abuse or neglect allegations.37 these assessments can be complex, and require scr staff members to make quick determinations based on their interpretations of 29 id. at 7. 30 id. at 7. 31 id. at 7. 32 id. at 8. 33 id. at 9. 34 see generally child protective services, off. of child. & fam. servs., https://ocfs.ny.gov/programs/cps/ (last visited july 18, 2024); see also melissa friedman & daniella rohr, reducing family separations in new york city: the covid-19 experiment and a call for change, 123 colum. l. rev. f. 52, 54 (2023). 35 child protective services, off. of child. & fam. servs., https://ocfs.ny.gov/programs/cps/ (last visited july 18, 2024). 36 n.y. soc. serv. law § 413 (mckinney 2022). 37 no filter, supra note 10. 2025] overreporting and investigation 1167 what constitutes “reasonable suspicion,” “minimum degree of care,” “imminent risk of impairment,” and more.38 under ocfs policy, if the scr accepts a report, which it does in about 75% of cases, the local child protective services agency—in new york city, acs—must begin an investigation, by law, within 24 hours.39 unlike many other law enforcement agencies, once the call is referred by ocfs, acs has no discretion whether to investigate: it must do so.40 in carrying out this mandate, ocfs requires a child protective specialist (“cps”) to make in-person or telephonic contact with the subject or named person in the scr report or another person who can provide information about whether the child may be in imminent danger within 24 hours.41 within seven days of an scr report, ocfs requires the cps to assess the safety of the child, which includes conducting a home search and child interview.42 when carrying out home searches, the cps must examine all rooms, irrespective of allegations, and the casework manual enumerates twentytwo aspects of the home that must be evaluated, including the refrigerator.43 notably, new york law does not require acs to conduct a home search as part of its investigation.44 instead, it requires acs to “evaluate the environment” of the subjects of the report and lays out the steps the agency must take if its workers are denied access.45 ocfs and acs’ home visit requirement is therefore not required by law. in fact, it constitutes a significant expansion of the law, contributing to a culture of intrusive investigations. further, ocfs advises it is “good practice” for cps workers to question children away from the parent, and such interrogations may be done without a parent’s permission.46 acs guidance is similar, recommending interviewing the child at school or a child advocacy center, away from parents.47 as such, acs regularly interviews the child without the permission of a caregiver, and they typically do so in a separate room of the home during an initial visit, at school, or outside of the home. in the latter settings, the caregiver is often unaware that the child is being interviewed at all. during the investigative stage, acs may also carry out 38 id. 39 id.; n.y. soc. serv. law § 424(6)(a) (mckinney 2017). 40 id. 41 n.y. comp. codes r. & regs. tit. 18, § 432.2(b)(3)(i) (2014); see also new york state child protective services manual, off. of child. & fam. servs., at b-1 (oct. 2023), https://ocfs.ny.gov/programs/cps/manual/2023/2023-cps-manual-ch062023oct.pdf. 42 new york state child protective services manual, off. of child. & fam. servs., at b-1 (oct. 2023), https://ocfs.ny.gov/programs/cps/manual/2023/2023-cpsmanual-ch06-2023oct.pdf. 43 n.y.c. admin. for child. servs., division of child protection casework practice requirements manual at 20-21 (5th ed. 2013) (on file with author). 44 n.y. soc. serv. law § 424. 45 id. 46 new york state child protective services manual, supra note 42, at f-5. 47 division of child protection casework practice requirements manual, supra note 44, at 23. 1168 colum. j. of race & l. [vol. 15:1160 strip searches without consent of the parent or the child, a power it construes broadly.48 section 1034 of the new york family court act is the legal mechanism for securing a search warrant in child welfare investigations in new york. in theory, section 1034 serves to protect children’s and families’ fourth amendment and analogous state rights against unreasonable searches and seizures. during an investigation and prior to filing a petition, in the absence of parental consent or the existence of exigent circumstances, acs must obtain a 1034 court order to (1) gain entry into a home (“entry order”) or (2) gain access to a child’s body (“order to produce”).49 prior to issuing an order to produce, the family court must find “reasonable cause to suspect that a child or children’s life or health may be in danger.50 recognizing the privacy interests at stake in a home investigation, before issuing an entry order, the family court must also find “probable cause to believe that an abused or neglected child may be found on the premises.”51 the procedure for granting an entry order is the same as is required for granting a search warrant under new york’s laws of criminal procedure.52 however, in deciding whether to grant such an order, the family court also must consider and weigh numerous factors, including the nature and seriousness of the allegations, the age and vulnerability of the children, the potential harm to the child if an investigation is not completed, the relationship of the source of the report to the family (including the source’s ability to observe what has been alleged), any child protective or criminal history of the family, and “any other relevant information that the investigation has already obtained.”53 finally, the statute requires that the court authorize only the necessary measures that are the “least intrusive to the family,” protecting the particularity requirement of the fourth amendment and state analog.54 acs has up to sixty days to complete the investigation and determine whether the report is “unfounded” or “indicated” 48 new york state child protective services manual, supra note 42, at h-2-3; see also preventing strip searches of children and youth: a guide for advocates new york state supplement, am. bar ass’n (mar. 2022), https://www.americanbar.org/ content/dam/aba/publications/litigation_committees/childrights/strip-search-tool-kit-nyssupplement.pdf. 49 n.y. fam. ct. act § 1034 (mckinney 2009). 50 id. § 1034(2)(a)(i). 51 id. § 1034(2)(b)(i). 52 id. § 1034(2)(c). 53 id. § 1034(d)(i)-(v); matter of l.r., 63 misc. 3d 467, 468 (n.y. fam. ct. 2019) (finding that probable cause existed to grant entry into the home and stressing “[e]ach of these children is of insufficient age to care for himself or herself, and, thus, are reliant on the adults in their lives...as such, they are vulnerable. the potential harm to the child or children if a full investigation is not complete is, as noted above, grave and life altering.”); in re smith child., 26 misc.3d 826, 834 (n.y. fam. ct. 2009) (denying an application for an entry order holding that an anonymous report and a history of prior investigations or reports by cps alone were “insufficient to establish ‘probable cause’ for the issuance of an order of entry in a child protective investigation” absent other corroborating indications of maltreatment or abuse.). 54 n.y. fam. ct. act § 1034(2)(e) (mckinney 2009). 2025] overreporting and investigation 1169 (substantiated).55 the standard for indicating a case is a fair preponderance of the evidence, meaning it is more likely than not that a child was maltreated.56 during the investigation, and before any legal action is taken against a family, acs subjects families to a minimum of bimonthly home visits, allowing for up to a minimum of four additional, usually warrantless, searches following the initial home search.57 nearly one in five child welfare cases in new york city is diverted to a differential response program called cares,58 which allows acs to assess families without deeming a case indicated or unfounded.59 the program purports to support families without putting them through the typical investigative process and without seeking court intervention. instead, they are placed into a distinct track, handled by a separate unit within acs.60 acs removes these cases from its investigative statistics, painting a misleading picture that fails to acknowledge that families referred to cares often undergo significant and traumatic contact with acs. cares cases require “a finding that no child in the home is in immediate or impending danger of serious harm.”61 the cares program is run by acs, and families can opt in or out of the program. 62 after seven days, a final determination is made as to whether the family presents safety concerns that would require shift to a traditional investigation; otherwise it continues as a cares matter.63 the intervening seven days vary from a traditional investigation, but the inquiry into safety retains many of the hallmarks of an investigation including assessment of the home environment, safety of the child, the child’s needs, and interviews with children. in fact, 80% of cares cases in 2022 and 75% of cares cases in 2023 lasted forty-one to sixty days, the length of time of a traditional investigation, while only 6% were closed in under twenty days.64 while proponents of the program tout a shrinking family regulation system, it is, in fact, an expansion.65 as author kelly fong put it, “leaning 55 n.y. soc. serv. law § 424(7) (mckinney 2017). 56 n.y. soc. serv. law § 422 (mckinney 2022). 57 david shalleck-klein et al., gould v. city of n.y., class action complaint and jury demand, classaction.org at 13 (feb. 20, 2024), https://www.classaction.org/media/gould-et-al-v-the-city-of-new-york.pdf (citing n.y.c. admin. for child. servs., warrants, entry orders and orders to produce (on file with gould’s plaintiffs’ counsel)); n.y.c. admin. for child. servs., warrants; entry orders and orders to produce a child (on file with author). 58 demographics of children and parents at steps in the child welfare system, fy 2023, supra note 2, at. 59 the collaborative assessment, response, engagement & support (cares) approach, n.y.c. admin. for child. servs., https://www.nyc.gov/site/acs/childwelfare/cares.page (last visited july 18, 2024). 60 id. 61 n.y. comp. codes r. & regs. tit. 18, § 432.13 (2014). 62 id. 63 id. 64 (on file with author). 65 see miriam mack et al., written testimony of the article 10 family defense organizations in new york city, n.y. advisory comm. to the u.s. comm’n on civ. rts., at 7-8 (aug. 19, 2023), https://cfrny.org/wp-content/uploads/2023/08/joint-defender-civilrights-commission-testimony-final.pdf. family defense organizations in new york city make clear that cares cases are “no less coercive.” in fact, in some ways they are “more invasive” than typical cases because the time of the services can extend longer than a traditional investigation. 1170 colum. j. of race & l. [vol. 15:1160 into cps’ [‘child protective services’] helping role does not negate its coercive power . . . . [s]upport delivered through cps remains inextricably tethered to surveillance; the promise of care is inseparable from the threat of removal . . . . [d]ifferential response often gives families essentially the same thing [as traditional cps intervention] in different wrapping paper.”66 because these families are, in effect, investigated and because they remain in contact via cares services with acs without an indicated case, this paper categorizes cases referred to the cares track as investigations. if acs deems a case indicated, it can opt to address the alleged maltreatment in one of three ways: it can offer services to the family, file a petition in family court alleging abuse or neglect while seeking courtordered services, and in some instances, file a petition and seek the removal of the child from the home.67 while providing services, be it by consent or court-ordered, acs continues to monitor the family via home visits, strip searches, and communication with connected individuals and entities such as family and schools. while those voluntarily engaging in services may opt out, many do not feel able to opt out for fear of losing their children. therefore, acs involvement in a child’s life lasts until acs or the court closes the case, which can be months or even years later.68 given the staggering number of children investigated in nyc annually, the low rates of substantiation, and acs’s wide latitude for intrusion at the investigative stage, it is clear that children in nyc are unnecessarily and aggressively surveilled by the apparatus purportedly designed to protect them. c. investigations in new york city are invasive, punitive, and coercive a simple interrogation into the child welfare system makes it clear why many call it the “family regulation” or “family policing” system.69 to state the obvious: investigations are invasive for children and families. acs workers themselves describe investigations as “[c]aseworkers making unannounced visits [to] strip-search children looking for bruises and peer[ing] into refrigerators and around homes looking for signs of bad 66 kelley fong, investigating families: motherhood in the shadow of child protective services, 202 (2023). 67 see a guide for parents of children in foster care, n.y.c. admin. for child. servs., at 6, 15–16, 49 (2023), https://www.nyc.gov/assets/acs/pdf/parent_handbook.pdf [https://perma.cc/p2f6-6xad]. 68 friedman & rohr supra note 35, at 55. 69 we believe the narrowing the front door working group summed the need for this language up best: “throughout this report and recommendations we refer to the ‘family regulation system’ or ‘family policing system.’ by adopting this language, we follow how directly impacted people describe their lived experience with what has traditionally been called the ‘child welfare system’ or the ’child protection system.’ this terminology reflects their experience with the system’s prioritization of and roots in surveillance, punishment, and control rather than genuine assistance to and support of families living in poverty and families in other marginalized groups, particularly black and brown families.” angela olivia burton et al., narrowing the front door to nyc’s child welfare system report and community recommendations (2022), https:// www.narrowingthefrontdoor.org/_files/ugd/9c5953_86404362d37449fc9d93c19ba2300f7f.pd f; see also roberts, supra note 24. 2025] overreporting and investigation 1171 parenting.” 70 section 424 of new york’s social services law requires acs to undertake “an evaluation of the environment of the child named in [a] report and any other children in the same home.”71 in interpreting this mandate, acs and ocfs have given caseworkers wide latitude to enter homes (often at night), strip search children, pull them from schools, interview a myriad of individuals related to a child’s life, and essentially turn a family’s life inside out and upside down.72 in a discarded study conducted by acs, a cps worker likened an investigation to “being stopped and frisked for 60 days.”73 one worker went so far as to say “black and brown parents are treated at every juncture as if they are not competent parents capable of providing acceptable care to their children.”74 the new york city child welfare system is also punitive—often punishing poverty. acs’ own survey found that symptoms of poverty, such as inadequate housing or childcare, are frequently punished as signs of neglect.75 in fact, experts at the federal children’s bureau and beyond find that confusing poverty for neglect is one of the gravest issues plaguing the child welfare system today.76 rather than meeting the needs of a family, the system is designed to police them. acs promotes an image of its investigative system as focused on “social work skills”77 and on providing therapeutic support for families. however, acs/ocfs training, recruiting, and guidance materials reveal that the investigations are more closely connected to policing than social work.78 for years, acs trained new cps workers at the new york city police department (“nypd”) training academy and these workers attended nypd’s criminal investigator’s course.79 ultimately, acs established its own facility for investigative training to supplement the nypd training, modeled after the nypd “fun house,” which is a “mock multi-room apartment,” in which hired actors play the roles of parents and children being investigated by acs in order to train acs cps officers on how to conduct home searches and investigative interviews.80 for more complex cases, acs employs “investigative consultants,” who must have “five (5) years of satisfactory full-time experience in the field of law enforcement” and “at least three years of this experience must have been obtained while working in special victims, forensics, homicide, domestic violence, missing persons, precinct detective; or a closely related law 70 andy newman, is n.y.’s child welfare system racist? some of its own workers say yes., n.y. times (nov. 22, 2022), https://www.nytimes.com/2022/11/22/nyregion/nyc-acsracism-abuse-neglect.html. 71 n.y. soc. serv. law § 424 (mckinney 2017). 72 see supra section ii.b. 73 newman, supra note 71. 74 id. 75 id. 76 friedman & rohr, supra note 35, at 71. 77 becoming a child protective specialist, n.y.c. admin. for child. servs., https://www.nyc.gov/site/acs/about/becoming-cps.page (last visited july 22, 2024). 78 tarek z. ismail, family policing and the fourth amendment, 111 cal. l. rev. 1485, 1501 (2023). 79 id. 80 id. 1172 colum. j. of race & l. [vol. 15:1160 enforcement work unit or task force” or other law enforcement experience.81 given that much of cps’ training is rooted in law enforcement tactics, it is no surprise that child welfare investigations are unequivocally coercive.82 using tactics similar to those employed by the police, including shows of force, threat of court intervention, and surveillance during their investigations, cps repeatedly searches the home and routinely stripsearches the child. though acs provides parents with a handout describing their rights at the first contact, as described in section iii b below, this advisory is perfunctory.83 in reality, cps often resorts to heavyhanded tactics such as threatening parents with court intervention, removal of their child, and police involvement.84 acs’ own “[c]aseworkers said they felt pressured to push their way into people’s homes without advising parents of their rights. they ‘feel complicit in the harm that a.c.s. [sic] can cause black and brown families’ and powerless to change the system.”85 this is unsurprising, given the breadth of caseworkers’ discretion, which they exercise in a system that expects access to families, children, and homes, without meaningful attention to privacy rights and the laws that protect them. for example, the ocfs guidance states that, “[w]hen a cps receives allegations that a child has injuries on those parts of his or her body normally covered by clothing (usually the torso/trunk and upper thighs), it must consider whether to have the child undress to allow for a visual confirmation of any injuries”,86 despite this, former caseworkers reveal that strip searching children down to their underwear is a “routine” practice, irrespective of the nature of the triggering allegations.87 as discussed below in section iii b, caseworkers very rarely seek judicial approval prior to entering a family’s home or strip searching a child. the structure of the child welfare system, compounded by caseworker training and ocfs guidance on how to implement the laws, create a culture of investigation without court ratification. because there is no mechanism for a court to suppress illegally obtained evidence suppression in family 81 investigative consultant – level 1, off. careers website of the city of n.y., https://cityjobs.nyc.gov/job/investigative-consultant-level-1-in-nyc-all-boros-jid-10139 (last visited july 19, 2024). 82 ismail, supra note 79, at 1492, 1501. 83 see section iii.b; see also, nyc admin. for child protective servs., child protection (2023). 84 ismail, supra note 79, at 1492, 1497–8, 1501; see also shalleck-klein supra note 57, at 16–18 (enumerating six coercive hallmarks of an investigation: threatening to take children away, threatening to call the police, telling parents they have no choice, misrepresenting or abusing acs authority, failure to meaningfully inform parents of their rights, and making a public scene); new york advisory committee, examining the new york child welfare system and its impact on black children and families, u.s. comm. on civ. rts., at 54 (may 2024), https://www.usccr.gov/files/2024-05/ny-child-welfare-system-sacreport_0.pdf (a recent report by the new york advisory committee to the u.s. commission on civil rights, noting “multiple [stakeholders] provided testimony that cps obtains entry to the household through methods of coercion.”). 85 newman, supra note 71. 86 new york state child protective services manual, supra note 42, at h-1 (emphasis added). 87 newman, supra note 71. 2025] overreporting and investigation 1173 regulation proceedings, the issue of when or how searches are carried out is never litigated. rather than going to court, caseworkers circumvent the law and coerce consent for easier access to children. the way investigations are carried out is not the fault of the individual caseworkers—they are acculturated to a broken system far bigger than themselves. instead, it is a result of the laws,88 policies,89 training,90 culture, practice and, ultimately, the design of the entire child welfare system.91 iii. acs investigations violate the rights of children and their families acs investigations are not only invasive—they also circumvent a child’s right to privacy, everyone, including children and parents, has the right to be free from unreasonable searches and seizures. these rights are enshrined in the fourth amendment of the united states constitution, and in article 1 section 12 of the new york state constitution. in the context of child welfare investigations, these rights are reflected in the family court act, which lays out a mechanism for seeking a court order prior to conducting a home investigation or strip search of a child. however, the scope of the current apparatus, and the coercive way it functions, make clear that acs fails to uphold these rights. a. children have a statutory right to privacy the fourth amendment of the united states constitution, which applies to the states via the fourteenth amendment and is enshrined in the new york state constitution, establishes “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”92 this right, the constitution continues, “shall not be violated,” and is protected through a warrant requirement, mandating that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”93 notably, the protections of the fourth amendment are not limited to the criminal context. they extend to all “activities of sovereign authority.”94 it is undisputed that the fourth amendment applies to children.95 as such, a child has the right to be free from unreasonable searches of his 88 josh gupta-kagan, confronting indeterminacy and bias in child protection law, 33 stan. l. & pol’y rev. 217 (2022). 89 new york state child protective services manual, supra note 42. 90 ismail, supra note 79, at 1501. 91 gray, supra note 24. 92 u.s. const. amend. iv; n.y. const. art, i, § 12 (containing identical language). 93 id. 94 new jersey v. t.l.o., 469 u.s. 325, 335 (1985) (internal quotations and citations omitted). 95 see id. at 333 (holding that the fourth amendment’s protections apply to searches of children conducted by public school officials); see also california v. hodari d., 499 u.s. 621, 626–27 (1991) (finding a minor’s fourth amendment rights were not violated, thereby recognizing such rights exist); and kristin henning, the fourth amendment rights of children at home: when parental authority goes too far, 53 wm. & mary l. rev. 55, 61 (2011). 1174 colum. j. of race & l. [vol. 15:1160 person, as well as unwanted governmental intrusion into his home.96 while a child can therefore deny a police officer or a child welfare caseworker entry into their home without a warrant or the presence of exigent circumstances, the reality is that a child’s right to do so is often inextricably linked to that of their parent.97 imagine a circumstance in which a parent and child are home and law enforcement knocks on the door. whether a child welfare worker or police officer, the entrant does not address the critical question—whether they may enter the family’s home—to the child. instead, they focus on the parent. that does not make the child’s rights any less real, but rather, simply overlooked. though few courts have evaluated a child’s right to privacy at home separately from their parents’ involvement or consent, those that have recognize the minor’s independent rights to the fourth amendment’s protections.98 more generally, the supreme court has consistently found that the fourth amendment’s “overriding function” is to “protect personal privacy and dignity against unwarranted intrusion by the state.”99 an individual’s right to personal privacy is perhaps strongest in their home, as “[a]t the amendment's ‘very core’ stands the ‘right of a man to retreat into his own home and there be free from unreasonable government intrusion.’”100 in addition to protecting against unreasonable government intrusion in one’s own home, the fourth amendment also protects one’s right to bodily integrity and privacy of one’s person.101 as a result, courts have held that strip searches of children “implicate fundamental fourth amendment rights,” placing particular emphasis on a child’s unique vulnerability to such a search.102 home and strip searches conducted without a warrant are therefore presumptively unreasonable, unless (1) the party has voluntarily consented to the search, (2) exigent circumstances exist, or (3) there is a “special need . . . beyond the normal need for law enforcement, [that] make 96 u.s. const. amend. iv; n.y. const. art, i, § 12 (containing identical language). 97 as scholar kristin henning has written: while it is largely beyond dispute that children have a legitimate expectation of privacy and security from government intrusion when they are alone, the reality is that most children do not live by themselves and are rarely alone. as a result, a child’s expectation of privacy in his living space can rarely be examined in a vacuum, and children seldom exercise their fourth amendment rights in the home without some involvement or reference to a parent or guardian. henning, supra note 96, at 70. 98 id. at 72 (citing as examples, in re rudy f., 12 cal. rptr. 3d 483, 490 (ct. app. 2004)); commonwealth v. porter, 923 n.e.2d 36, 45 (mass. 2010)); in re welfare of b.r.k., 658 n.w.2d 565, 574–76 (minn. 2003). 99 schmerber v. california, 384 u.s. 757, 767 (1966); see also camara v. municipal court, 387 u.s, 523, 528 (1967) (stating that the “basic purpose” of the fourth amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”). 100 florida v. jardines, 569 u.s. 1, 6 (2013) (citing silverman v. united states, 365 u.s. 505, 511 (1961)); see also caniglia v. strom, 593 u.s. 194, 198 (2021). 101 in re. shernise c., 934 n.y.s.2d 171, 174 (2d dept. 2011). 102 id. at 175 (citing bell v. wolfish, 441 u.s. 520, 558 (1979)). 2025] overreporting and investigation 1175 the warrant and probable-cause requirement impracticable.”103 the “special needs exception” loosens the warrant requirement where searches advance state interests unrelated or tangential to law enforcement.104 the exception substitutes a balancing test for the warrant requirement in contexts ranging from driving checkpoints to work-related searches of public employees’ offices.105 notably, virtually every federal appellate court has held that the fourth amendment applies to caseworkers conducting child welfare investigations, and that a caseworker’s entry into the home constitutes a search to which the warrant and probable cause requirements apply.106 in so holding, more than half of the federal courts of appeals have rejected a “special needs” exception in child welfare investigations, which would otherwise loosen the warrant requirement.107 notably, courts considering the legality of child welfare investigations in new york have not applied the lesser scrutiny of the special needs exception. the second circuit, which covers new york, is silent on whether the special needs exception applies to home searches and body checks in child welfare investigations. it has left open the possibility that the exception may apply to child welfare seizures (including the removal of children from a parent’s care) but has not held that it applies to searches alone.108 without the loosening of the warrant requirements, the traditional fourth amendment requirements of a warrant or consent absent exigent circumstances therefore apply. for example, in tenenbaum v. williams, the second circuit held that removing a child from her school and taking her to a hospital “where she was required to remain for several hours before being examined and returned to her parents,” constituted a seizure to which the fourth amendment applied.109 though the seizure took place three days after child welfare workers searched the child’s home and inspected her body, the court did not address the legality of the home search.110 instead, the court considered whether the special needs exception could ever apply to a child’s removal. the court, however, “refrain[ed] from deciding categorically,” holding that the result was the same whether the “probable 103 ferguson v. city of charleston, 532 u.s. 67, 74 n.7 (2001) (citations omitted). 104 new jersey v. t.l.o., 469 u.s. 325, 351 (1985) (blackmun, j., concurring); mich. dep’t of state police v. sitz, 496 u.s. 444, 449 (1990); o’connor v. ortega, 480 u.s. 709, 720 (1987). 105 t.l.o., 469 u.s. at 351–52 (blackmun, j., concurring); sitz, 496 u.s. at 448–50; o’connor, 480 u.s. at 721. 106 anna arons, the empty promise of the fourth amendment in the family regulation system, 100 wash. u. l. rev. 1057, 1088 (2023) (citing j.c. v. district of columbia, 199 a.3d 192, 200 (d.c. 2018); andrews v. hickman county, 700 f.3d 845, 859 (6th cir. 2012); gates v. tex. dep’t of protective & regul. servs., 537 f.3d 404, 419–20 (5th cir. 2008); riehm v. engelking, 538 f.3d 952, 965 (8th cir. 2008); roska ex rel. roska v. peterson, 328 f.3d 1230, 1240 (10th cir. 2003); doe v. heck, 327 f.3d 492, 509 (7th cir. 2003), as amended on denial of reh’g (may 15, 2003); calabretta v. floyd, 189 f.3d 808, 813 (9th cir. 1999); tenenbaum v. williams, 193 f.3d 581, 602 n.14 (2d cir. 1999); lenz v. winburn, 51 f.3d 1540, 1547 n.7 (11th cir. 1995); wildauer v. frederick county, 993 f.2d 369, 372 (4th cir. 1993); good v. dauphin cnty. soc. servs. for child. & youth, 891 f.2d 1087, 1092 (3d cir. 1989)). 107 id.; see also ismail, supra note79, at 1520–22. 108 see, e.g., tenenbaum, 193 f.3d at 604; kia p. v. mcintyre, 235 f.3d 749, 762 (2d cir. 2000); southerland v. city of n.y., 680 f.3d 127, 158 (2d cir. 2012). 109 tenenbaum, 193 f.3d at 602. 110 id. 1176 colum. j. of race & l. [vol. 15:1160 cause” or “special needs” “reasonableness” test was applied, thereby avoiding the question of whether the special needs exception ever could apply.111 the court did, however, note “if . . . caseworkers have ‘special needs,’ we do not think that freedom from ever having to obtain a predeprivation court order is among them. caseworkers can effectively protect children without being excused from ‘whenever practicable, obtain[ing] advance judicial approval of searches and seizures.’”112 following suit, in matter of shernise c., new york’s appellate division, second department, clearly declined to apply the special needs exception when reversing the family court’s order for a forensic examination of a child’s body following allegations of sexual abuse.113 notably, the court evaluated the reasonableness of such an order after a petition alleging sexual abuse was filed—a situation where there was presumably far more evidence of alleged abuse than there would be at the outset of an investigation.114 finding that such an order violated the child’s fourth amendment rights, the court held, “[r]egardless of whether the traditional probable cause requirement or some lesser requirement of individualized suspicion applies here under the ‘special needs’ doctrine, reasonableness remains the ultimate touchstone of the fourth amendment.”115 while the second circuit and new york state courts have not definitively ruled out the applicability of the special needs exception to child welfare home and body searches, the courts’ reluctance to apply it and loosen the warrant requirement is notable. in both tenenbaum and shernise, federal and state courts in new york explicitly recognized the important reality that caseworkers can obtain judicial approval for such investigations without undermining their ability to effectively protect children. as described supra, section 424 of new york’s social services law requires acs to evaluate the “environment” of any child named in a report to the scr, as well as of any other children in the same home. notably, the law does not describe when or how acs must make this evaluation. as also described supra, section 1034 of the family court act lays out the procedure for acs to secure a warrant in child welfare investigations. thus, in such investigations, “a family court order is equivalent to a search warrant for fourth amendment purposes.”116 despite the process that section 1034 requires, acs virtually never seeks such orders prior to searching a home and a child. instead, they rely on coercive tactics to carry out unsanctioned home and strip searches. 111 id. at 604–05. 112 id. at 604 (citing terry v. ohio, 392 u.s. 1 (1968)); see also arons, supra note 107, at 1089 n.179. 113 in re. shernise c., 934 n.y.s.2d at 175. 114 id. at 173. 115 id. at 175. 116 southerland, 680 f.3d at 144 n.15. 2025] overreporting and investigation 1177 b. acs investigations routinely violate children and their families’ rights to privacy in conducting its investigations, acs routinely fails to seek court orders setting forth parameters of the investigation. instead, it conducts home and bodily searches without meaningful consent and/or absent exigent circumstances, a plain violation of the fourth amendment and the accompanying protections in new york state law.117 according to family court holdings applying section 1034, “it has long been established, since at least 1968,” that parents “are under no obligation to cooperate with a child protective agency’s investigation of them.”118 however, in reality, despite the family court act’s provision for entry orders, the vast majority of child welfare home and body searches take place without judicial approval. on average, acs obtains entry orders for fewer than 0.4% of home searches.119 while parents are not required to allow cps access to their child or their home during an investigation, the ocfs handbook on investigations does not include any provisions requiring that parents be notified of this right or any other legal rights during the first interview, nor at any other time, except for notification of their rights pursuant to the amendment or expungement of scr reports.120 if a parent denies access, within 24 hours of such denial, the cps, in consultation with a supervisor, must determine whether there is a potential danger to the children that necessitates seeking a court order for entry, and also must inform the adult who denied access that they plan on obtaining such order.121 the cps also may request law enforcement assistance before seeking a court order.122 implicit in this framework is that cps’ initial tactic is to gain access into the home with a mere knock on the door. only if denied entry do the child and family’s legal rights come into play, relegating those rights to little more than an afterthought in the investigative process and putting the onus on a terrified family to enforce their constitutional rights. while new york city does notify parents of some of their rights by providing a handout to families at first contact with cps, that notification is not mandated by new york law, nor is it meaningful.123 the handout 117 see generally ismail, supra note 79 (describing the fourth amendment protections that must apply to cps searches). 118 in re smith children, 891 n.y.s.2d 628, 633 (n.y. fam. ct. 2009). 119 see supra note 3. 120 new york state child protective services manual, supra note 42, at f-3. 121 n.y. fam. ct. act § 1034(2)(d) (mckinney 2009); n.y. comp. codes. r. & regs. tit. 18, § 432.2(b)(3) (2014). see also new york state child protective services manual, supra note 42, at f-13. 122 new york state child protective services manual, supra note 42, at f-11-13. 123 see nyc admin. for child protective servs., child protection (2023). for example, the handout says: we want you to know you have a right to not let acs into your home. if you choose not to let acs into your home, acs is required by law to determine how best to assess the safety of your child(ren). this may include seeking permission from family court to complete the assessment. 1178 colum. j. of race & l. [vol. 15:1160 includes five bullet points which explain that acs received a report, it has a legal obligation to assess the safety of the child(ren), requests permission to enter the home and have a conversation with the parent, acknowledges the parent has a right not to let acs in their home and, if denied, may seek permission from the court to complete the assessment.124 the handout notes the parent can call an attorney and that an additional handout with contact information will be given.125 nowhere in this handout does acs reference or acknowledge that they can or will speak with a child, let alone possibly strip search them. moreover, the process of handing over a pamphlet is perfunctory, in no way ensuring a recipient understands their rights or feels empowered to animate them. therefore, most parents—and certainly most children—do not meaningfully understand their rights to refuse a caseworker’s request to enter the home or to interview and strip search the child. without an understanding of their rights, and with the often-coercive presence of a government agent in their doorway, many families consent for fear of what might happen if they do not. this is particularly true for children, who may either be unaware of their rights or are not able to assert them when faced with an adult authority figure. courts have found interviews of children at school, for example, to constitute seizures under the fourth amendment because children often do not understand that they are free to leave or otherwise refuse to participate.126 notably, acs does not maintain data on how often families consent freely, consent after threat of court intervention, or refuse to consent at all. moreover, acs routinely conducts investigations not only without meaningful consent or court order, but also without evidence of exigent circumstances. as laid out earlier, only 22.5% of child welfare investigations were substantiated in 2023. this paints a clear picture of the large number of non-exigent investigations. acs can, and should, enter a child’s home only in an emergency when that child is in imminent danger of harm. in general, if “an agency has reasonable suspicion that someone inside a home is seriously hurt, likely to be hurt, or in need of medical attention such that getting a warrant in time would be impossible, cps agents—just like the criminal police—are permitted to enter the home.”127 it is only in those circumstances that exigent circumstances exist. however, in nearly 77% of cases, acs enters the home where it ultimately finds insufficient evidence of abuse or neglect—let alone where someone is seriously injured, likely to be injured, or in need of medical attention. though there are, of course, instances where acs is unable to determine acs important information for families handout (on file with author). the language in the handout does not capture what it means to ‘best assess safety’ or ‘seeking permission.’ it does not clarify that a 1034 order could be more limited in scope than a search done under general consent. moreover, handing someone a one-page explanation of legal rights, without immediate access to an attorney, while simultaneously threatening, overtly or by implication, to take someone’s children, is not meaningful notification of someone’s rights. 124 id. 125 id. 126 see, e.g., phillips v. orange, 894 f. supp.2d 345, 362 (sdny 2012) 127 ismail, supra note 79, at 154 (internal citations omitted) 2025] overreporting and investigation 1179 the exigency of the circumstances through the scr call alone, the overall substantiation rate is too low to suggest that exigent circumstances existed in the majority of cases. this makes clear that the investigation itself contravenes children’s fourth amendment rights and the mandates of the family court act and new york state constitution. taken together, the above demonstrates that despite the legal mandate that acs only enter homes or strip search children with meaningful consent, exigent circumstances, or a court order, most investigations in new york city are carried out illegally. couple the illegality of the intrusion with the massive overreach of a system that unnecessarily investigates 77,500 mostly black and latine children annually, it becomes clear that the child welfare investigation system is fundamentally broken. iv. overreporting and investigation cause children significant harm128 overreporting and subsequent over investigation are not only unlawful, but they also are unequivocally harmful to children. as one author points out, “[t]he profound irony of this approach is that, in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help.” 129 children subject to investigation suffer repeated harms through the pendency of investigation, which can take up to 60 days.130 it “should be noncontroversial” that such interventions could cause harm to children.131 while empirical harm-related data is scarce, what does exist shows that the harms caused by this overly intrusive process, some of which are elaborated upon below, range from “temporary discomfort to significant long-term harm.”132 first, strip searches, a common practice in new york,133 are extremely damaging to children—so much so that the aba even issued a resolution recommending the elimination of strip searches in child welfare cases except in extreme circumstances.134 the aba found that strip 128 much of the research in this section was carried out by emily grasso, julia malkina, chase shelton, elias daiute, zacharia hasan, and lydia murray. we are grateful for their research assistance. 129 doriane l. coleman, storming the castle to save the children: the ironic costs of a child welfare exception to the fourth amendment, 47 wm. & mary l. rev., 413, 417 (2006). 130 see supra section ii.b. 131 coleman, supra note 129, at 520, fn 315. 132 id. at 419. 133 newman, supra note 71; see also new york advisory committee supra note 5, at 54. 134 the american bar association’s resolution prohibiting strip searches of children and youth, except in exceptional circumstances states: that the american bar association urges all federal, state, local, territorial, and tribal governments to adopt policies and contractual provisions that prohibit conducting strip searches of children and youth. . . [and r]esearch in adolescent development also 1180 colum. j. of race & l. [vol. 15:1160 searches, even those that do not go beyond the underwear, are “dehumanizing,” “perceived as particularly intrusive by children,” and can “seriously traumatize children,” which can have lasting psychological effects. 135 it further noted “any strip search, no matter the underlying justification, has a debilitating impact that clearly does not account for the child’s best interests.”136 in the context of a child welfare strip search, the issue is heightened. strip searches can “re-traumatize” victims of abuse or neglect.137 in fact, experts recommend that when a body search is required, “a comprehensive and trauma-informed physical by a medical professional, not a strip search, would best meet the goal.”138 second, even absent a strip search, an investigation by the state causes “real emotional and psychological harm.”139 specifically, “family members, including children, might suffer from . . . trauma, anxiety, fear, shame, guilt, stigmatization, powerlessness, self-doubt, depression, and isolation” as a result of child welfare investigations.140 the investigation itself sows fear and anxiety around the possibility of removal.141 even the acs commissioner acknowledged the harm and trauma of the investigations carried out by his own staff: “[w]e understand that the impact of an investigation on a family is significant—investigations are often disruptive, stressful and can be traumatic.”142 former deputy mayor of health and human services anne williams isom recently said, “[c]hild welfare investigations can be traumatic, stressful, and intrusive for families, and they disproportionately impact families of color.”143 third, the infringement on parental authority during an investigation is traumatic to children.144 studies conducted in medical supports the legal conclusion that strip searches impact young people even more severely than adults. resolution prohibiting strip searches of children and youth, except in exceptional circumstances, am. bar ass’n (aug. 2020), 1-5, https://www.americanbar.org/ content/dam/aba/publications/litigation_committees/childrights/111b-annual-2020final.pdf. 135 id. at 20. 136 id. at 5. 137 id. at 6. 138 riya s. shah & jessica feriman, strip searching children is state-imposed trauma, am. bar ass’n (oct. 12, 2021), https://www.americanbar.org/ groups/crsj/publications/human_rights_magazine_home/empowering-youth-at-risk/stripsearching-children-is-state-imposed-trauma/. 139 coleman, supra note 129, at 520. 140 id. 141 id. see also ismail, supra note 79 at 1535–36. 142dannhauser, supra note 12 at 3. 143 administration for children’s services, nyc public schools & new york state office of children and family services announce strategies to address racial disproportionality in the child welfare system, admin. for child. servs. (oct. 19, 2023), https://www.nyc.gov/assets/acs/pdf/pressreleases/2023/address-racialdisproportionality.pdf. 144 ismail, supra note 79, at 1535–36 (citing gupta-kagan, supra note 89) (describing a medical study finding that children react with anxiety to temporary infringements of parental autonomy). see also, e.g., ctr. for improvement of child and fam. servs., reducing the trauma of investigation, removal, & initial out-of-home placement in 2025] overreporting and investigation 1181 settings found children react with anxiety even to temporary infringements on parental autonomy.145 as one set of authors said, “[t]he younger the child and the greater her own helplessness and dependence, the stronger is her need to experience her parents as her law-givers—safe, reliable, allpowerful, and independent.”146 the “invasion of family privacy alters the relationship between family members” and causes children to “react with anxiety even to temporary infringements of parental autonomy.”147 the stress inflicted on a parent during an investigation also affects a child’s wellbeing.148 intuitively, this makes sense. if a caregiver is stressed by an investigation, that negatively affects those around the caregiver. at least one study has found that the “intense level of supervision and intervention” from child welfare intervention impacted parents’ ability to parent effectively by undermining parental authority, sometimes leading to increases in rebellious behavior in the children.149 in new york, overinvestigation has been found to be disruptive, humiliating, and even traumatic for caregivers.150 finally, over reporting and over-investigation also may result in avoidance of reporters. some research suggests that fear of cps oversight leads parents to limit their children’s access to mandatory reporters, resulting in decreased access to medical, welfare, legal, labor market, or educational institutions.151 given the disproportionate minority representation in new york’s child welfare system and across the country, it is logical that people in minority populations would be fearful of “catching an acs case” and might feel that this risk is greater than the need for child abuse cases, port. st. univ. sch. soc. work (july 2009), at 12–13, https://www.pdx.edu/center-child-family/sites/centerchildfamily.web.wdt.pdx.edu/ files/2020-07/cja-project-information-and-discussion-guide.pdf (describing “the potential trauma to children during investigation and removal” as “shock”, “confusion”, “loss of control”, “a sense of being kidnapped”, helplessness”, “betrayal”, “loss of trust”, “a sense that the world is unsafe”, “and a sense of guilt”). 145 id. 146 joseph goldstein, et al., the best interests of the child: the least detrimental alternative 97 (1986). 147 id. 148 michael evangelist et al., child protective services contact and youth outcomes, 136 child abuse & neglect 1, 9 (2023); see also, e.g., darcey h. merritt, how do families experience and interact with cps?, 692 the annals of the am. acad. of pol. & soc. sci. 203, 209 (2020) (hypothesizing that cps oversight “can also transfer distress intergenerationally to children” and strain parent-child relationships). 149 see dorothy e. roberts, the racial geography of child welfare: toward a new research paradigm, 87 child welfare 125, 134 (2008) (“respondents reported that children’s awareness agency’s potential power over parents increased the threat to parental authority. six interviews included stories of children who reported false accusations of maltreatment to dcfs to avoid their parents’ rules or to rebel against parents who disciplined them.”); alan j. dettlaff et al., it is not a broken system, it is a system that needs to be broken: the upend movement to abolish the child welfare system, 14 j. of pub. child welfare 501, 504 (2020) (discussing roberts article). 150 newman, supra note 71 (citing asher lehrer-small, exclusive data: educators’ ‘careless’ child abuse reports devastate thousands of nyc families, the 74 (oct. 6, 2022), https://www.the74million.org/article/exclusive-data-educators-careless-child-abuse-reportsdevastate-thousands-of-nyc-families/). 151 evangelist, supra note 148, at 9.; see also, e.g., merritt, supra note 148, at 209 (citing kelley fong, concealment and constraint: child protective services fears and poor mothers’ institutional engagement, 97 soc. forces 1785 (2019)). 1182 colum. j. of race & l. [vol. 15:1160 otherwise necessary or beneficial services–all the more reason to eliminate mandated reporting, as discussed in section v. v. recommendations new york city's child welfare system unlawfully subjects too many children to investigation without sufficient protection of families' rights. below, we describe seven potential reforms to the investigative process, including changes that would redirect expected cost savings to more productive and less coercive investments in families. a. new york must eliminate mandatory reporting and forego capta funding to stem the tidal wave of children investigated in nyc, new york must eliminate mandatory reporting, which makes up a whopping 68% of all scr calls.152 a mere 22.6% of those cases were substantiated in 2024.153 even if not mandated, many people will still report suspected abuse. what they will not report, however, are fringe cases, which could eliminate a huge number of unnecessary reports. mandatory reporting leads to over-reporting, as discussed in section i. under new york law, there are forty-eight categories of mandated reporters.154 of mandated reporters, the highest percentage of scr calls come from educational personnel (24%, 14% substantiated), followed by social services personnel (19%, 24% substantiated), law enforcement (19%, 47% substantiated), and medical/mental health professionals (9%, 24% substantiated).155 while the substantiation rates for mandated reporters in nyc are somewhat higher than the overall nyc substantiation rate, they are still shockingly low.156 if a mandated reporter has “reasonable cause to suspect child abuse or maltreatment,” they must report, and if they fail to do so, they face criminal and/or civil penalties.157 depending on the individual’s employer and licensure requirements, they could also face disciplinary action or lose their job. mandated reporters err on the side of reporting for fear of legal 152 id. 153 ctr. for n.y.c. affairs, watching the numbers 2025 1 (2025), https://static1.squarespace.com/static/53ee4f0be4b015b9c3690d84/t/680978cecead453d0af1 54bf/1745451214178/wtn2025.pdf. 154 bronx defenders et al., testimony of the article 10 family defense organizations in new york city presented before the new york state assembly standing committee on children & families, center for fam. representation at 6 (sept. 27, 2023), https://www.bronxdefenders.org/wp-content/uploads/2023/10/nys-assembly-hearingmandated-reporting-2023-joint-testimony-final-10.6.23.pdf. 155 nora mccarthy, hotline calls (on file with author). 156 the fact that law enforcement referrals are the most substantiated makes logical sense. law enforcement personnel are emergency responders who make referrals during an acute emergency. particularly in those scenarios, they would continue to report irrespective of the mandate. 157 summary guide for mandated reporters in new york state, off. of child. & fam. servs. at 1, at 4 (feb. 2016), https://otda.ny.gov/policy/directives/2017/adm/17-adm06-attachment-4.pdf. 2025] overreporting and investigation 1183 liability,158 creating a culture of “when in doubt, call the scr.”159 moreover, bias can play a role in who is reported, as evidenced by the racial disproportionality in the system.160 some advocates argue for improved training—not eliminating mandatory reporting but making it better. while training improvements are necessary, efforts historically have proven insufficient. in 2023, acs announced an initiative to reduce over-reporting in the child welfare system by re-training mandated reporters in nyc public schools, public and private hospitals, youth and community development organizations throughout nyc, and entities connected to the mayor’s office to end domestic and gender-based violence.161 the goal of the trainings were to move from mandated reporting to mandated supporting.162 since the beginning of 2023, acs has conducted or co-led more than 180 presentations/training sessions reaching more than 12,000 people.163 while this work is critically important, it is not sufficient. the result of these efforts is only an overall 4% reduction in scr reports city-wide to date.164 mandatory reporting persists, in part, because it is tied to federal funding that state and local governments are eager to receive. the federal child abuse prevention and treatment act (capta) predicates federal reimbursement funding for child welfare on mandatory reporting.165 the funding is minimal, in 2023 totaling approximately $4.7 million,166 which 158 mike hixenbaugh et al., mandatory reporting was supposed to stop severe child abuse. it punishes poor families instead., propublica (oct. 12, 2022, 8:00 am), https://www.propublica.org/article/mandatory-reporting-strains-systems-punishes-poorfamilies (quoting haven evans, director of programs at pennsylvania family support alliance). 159 annie sciacca, new york announces new mandated reporter training to reduce ‘unwarranted’ child maltreatment reports, the imprint (feb. 15, 2023, 5:26 pm), https://imprintnews.org/top-stories/new-york-announces-training-to-reduce-unwarrantedchild-maltreatment-reports/238580. 160 see the child welfare system and the mandatory reporting of child abuse or maltreatment in new york state: hearing before the n.y.c. standing comm. on child. & fam. and the standing comm. on foster care, 2023 leg. sess. (n.y. 2023) (written testimony of the legal aid society’s juvenile rights practice), at 3–4 (citing ta-nehisi coates, the black family in the age of mass incarceration, the atlantic (oct. 2015), https://www.theatlantic.com/magazine/archive/2015/10/the-black-family-in-the-age-ofmass-incarceration/403246/) (on file with author); and bronx defenders et al., supra note 154, at 4 (citing roberts, supra note 24, at 174–80 citing khiara m. bridges, the poverty of privacy rights 51–64 (2017); and alan j. dettlaff, confronting the racist legacy of the american child welfare system: the case for abolition 162-77 (2023)). 161 powerpoint presentation from jill krauss, n.y.c. admin. for child.’s serv.s, the evolving focus of nyc child welfare: addressing over-reporting and promoting familycentered supports: pli presentation (july 26, 2024) (on file with author). 162 id. at 8. 163 id. at 28. 164 id. at 29. 165 42 u.s.c. § 13031(b)(1)-(8) (1990). 166 capta/cara state grant fy2023, off. of child. & fam. servs. at 1 (oct. 27, 2023), https://ocfs.ny.gov/main/policies/external/2023/lcm/23-ocfs-lcm-24.pdf. 1184 colum. j. of race & l. [vol. 15:1160 is a paltry 0.08% of ocfs’ projected fy 2024 budget of $5.8 billion.167 that amount of money is just not worth the cost to children and families. eliminating mandatory reporting is not a bar on reporting altogether. if someone suspects abuse or neglect, they may, and should, still make a call. but a decision to report—that is, a decision to put a child and her family on the radar of a coercive investigative apparatus—should not be driven by a reporter's fear of personal or professional consequences. removing reporting mandates would deter reporters from filing unnecessary reports for self-protection and focus instead on child protection. b. new york must strengthen scr screen-out protocols to prevent unnecessary investigations to address the overbreadth of the child welfare investigative apparatus, acs must reform the way it screens initial calls to the scr. despite acs’ and ocfs’ widespread acknowledgement that it investigates far too many families every year,168 and the dramatic reduction in both the number of child welfare cases filed169 and children removed into foster care,170 not enough has been done to address the very front door of the system—the scr. today, rates of investigation, meaning calls referred from the scr, remain as high as they were in the 1990s.171 new york state screens out—that is, declines to refer certain calls to local child welfare agencies—far fewer scr calls than most other states. from 2018–2022, new york state screened out only 25% of calls, as compared to a national average of 50%, despite a lower call rate.172 while new york city has a lower screen-in rate than new york state, akin to the national average, the majority of black and latine children live in zip codes with double or triple the national/city averages of screen-in.173 as described above in section ii.b, the frontline scr operator must determine whether the allegations require investigation or should be screened out for failure to meet the necessary elements of a call.174 scr staffers are trained for six weeks to receive and screen out calls. 175 if a call is screened in, it must be investigated. despite the complexity of this work, scr workers are not provided a structured decision making tool to assist in screening, nor does ocfs have a regular, ongoing quality assurance 167division of the budget, off. of child. & fam. servs. (2024), https://www.budget.ny.gov/pubs/archive/fy24/ex/agencies/appropdata/childrenandfamilys ervicesofficeof.html#:~:text=budget%20highlights,compared%20to%20fy%202023%20lev els. 168 dannhauser, supra note 12. 169 nyc children flash report monthly indicators supra note 3, at 12. 170 see no filter, supra note 10. 171 id. 172 id. 173 id. 174 id. the required elements to accept a scr report are (1) reasonable cause to suspect, (2) that a minor child has been, (3) impaired or is in, (4) imminent danger of impairment because of the failure of a, (5) parent or person legally responsible to exercise a, (minimum degree of care for the minor child, (6) in new york, and (7) sufficient demographic information is provided. 175 id. 2025] overreporting and investigation 1185 protocol in place.176 additionally, ocfs does not provide any opportunity for secondary review of scr screen-out decisions.177 for example, if the local department of social services (ldss) investigating a case knows the report to be malicious or false, they cannot close the case without some form of investigation.178 evidence shows that screen-out reforms can succeed. early 2023 data reflects reductions in screened-in reports from anonymous reporters which outpaced the system-wide reduction in screen-in rates overall.179 ocfs implemented one critical change: scr staff is now required to ensure anonymous reporters speak with a supervisor. that one change alone dramatically reduced the screen-in rate for calls from anonymous reporters, which are notoriously the lowest-substantiated types of calls at.180 ocfs also implemented a structured decision-making tool during the pandemic to address educational neglect, reducing rates of educational neglect cases screened in.181 there are four critical changes that lawmakers and ocfs must make to the scr screening process. first, ocfs must improve screening protocols including developing structured decision-making tools to assist screening, regularizing quality assurance assessments, and mandating additional levels of screening or scrutiny by supervisors for all calls, particularly those from reporters with lower substantiation rates like anonymous reporters. second, scr staff must receive further and ongoing training on what constitutes a screen-in case. third, ocfs needs to embrace transparency and publish more training, statistical, and protocol information. fourth, new york must enact legislation allowing localities to screen out cases.182 strengthening screen-out protocols is essential for the safety of new york city’s children. not only do stricter screen-out protocols eliminate harmful, unnecessary investigations, they also allow the system to focus its limited resources more effectively and efficiently on those children that are truly in need. c. acs must minimize the invasiveness of investigations, including reducing reliance on middle-of-the-night searches, strip searches, and in-school interventions as laid out in section iv, acs home searches significantly harm children. the paradigmatic acs investigation is a knock on the door in the middle of the night, followed by a warrantless home entry and strip search 176 the statewide central register on child abuse and maltreatment: hearing before the n.y.c. comm. on child. & fam., 2024 leg. sess. (n.y. 2024) (testimony of melissa freedman). 177 id. at 13. 178 id. 179 no filter, supra note 10 180 id. 181 the statewide central register on child abuse and maltreatment: hearing before the n.y.c. comm. on child. & fam., 2024 leg. sess. (n.y. 2024) (testimony of nora mccarthy), https://familypolicynyc.org/wp-content/uploads/2025/01/fpp-scr-testimonywritten-final.pdf. 182 supra note 160. 1186 colum. j. of race & l. [vol. 15:1160 of a child.183 this is undeniably traumatic. acknowledging that the standard protocol is unacceptable, acs released guidance in 2022 and 2023 limiting which cases may be investigated during off-hours by emergency units rather than during business hours by borough offices.184 the impetus for the guidance is the “recog[nition of] the racial inequities and disproportionalities in our child welfare system.”185 this acs protocol is limited in scope. acs may only defer the following types of cases: cases requesting additional information on an existing case already under investigation, duplicate reports, court-ordered investigations, reports made by a borough office cps team, educational neglect, cases with indicators for false or malicious reporting, subsequent reports with active borough office responses, and fatality reports with no surviving siblings.186 while these changes to investigation protocol are necessary, they are not sufficient. any case without an immediate threat to a child’s safety or wellbeing must be deferred to daylight or business hours.187 as we have stressed, strip searches are a common practice in acs investigations, even when physical or sexual abuse is not alleged in the underlying report.188 it is unnecessary to strip search a child as frequently as acs does. acs should only strip search a child when the underlying allegations relate to physical or sexual abuse or the investigation reveals concerns regarding physical or sexual abuse. lastly, acs must curtail school interrogations. schools, essential spaces for children’s growth and development, must not be co-opted to trample children’s and families’ rights to refuse to speak with acs. further, acs should be careful not to compound the trauma of an investigation by adding the embarrassment and discomfort of an in-school interview. as with middle-of-the-night investigations and strip searches, school interviews should be used sparingly, only when necessary. acs must commit to harm reduction in investigations. it must narrowly tailor its investigative protocols to fit the underlying allegations or any other suspected maltreatment discovered during that investigation. most investigations can be carried out during normal business hours, unless there is reason to believe a situation is currently or imminently dangerous. an educational neglect case does not require a strip search of a child, without any other indicators of bodily harm. children and parents need the opportunity to decline to be interviewed or searched, and acs should seek an order pursuant to section 1034 of the family court act when a family declines, rather than using the school as a free-for-all access point for children during investigations. 183 see newman, supra note 71. 184 memorandum from franc cresciullo, re ecs case types for borough off. deferral (apr. 5, 2023) (on file with author). 185 id. 186 id. 187 we acknowledge that those cases deferred to cares are typically investigated during the day, so this statement refers only to traditional investigations. 188 supra note 160, at 16. 2025] overreporting and investigation 1187 d. implementing the above recommendations to reduce the number of investigations also reduces the cost of investigations–savings that should be used to support families acs spends more than $300 million a year on child welfare investigations.189 that is the cost of investigating 55,000 families including nearly 100,000 children per year, with a mere 22.5% substantiation rate.190 if acs cut the investigation rate by half, then half of that funding could ostensibly go to supporting the families that need aid, obviating the need for system involvement. studies show that even minimal cash assistance reduces child maltreatment. from july to december 2021, as part of the pandemicrelated american rescue plan, the federal government expanded the federal child tax credit, amounting to a national child allowance of $250300 per family per month.191 in the first month of the program alone (july 2021), the monthly childhood poverty rate plummeted by 25.6%.192 in the first five months of the program, 800,000 children rose above the childhood poverty line, a change of 27%.193 in new york, studies show that “86% of households with income below $35,000 used their child tax credit for basic needs, including food, clothing, rent, utilities, and education costs.”194 nationwide, the results were similar, at 88%.195 in june 2022, the american academy of pediatrics (aap) confirmed that cash assistance reduces child maltreatment rates.196 the aap analyzed irs data on weekly state tax refunds from earned income tax credit and the expanded child tax credit programs and looked at the rates of maltreatment reports, in those areas, shortly after families received funds.197 the aap found, “a statistically significant reduction in rates of child maltreatment reports associated with higher tax refund amounts during the week of issuance, the week after issuance, and three 189 keyna franklin & nora mccarthy, how nyc’s child welfare system is currently funded and how funding can shift, nyc fam. pol’y project (feb. 11, 2022), https://familypolicynyc.org/2022/02/11/nyc-child-welfare-funding/. 190 id. see also nyc children flash report supra note 4. 191 friedman & rohr, supra note 35, at 73 (citing zachary parolin et al., monthly poverty rates among children after the expansion of the child tax credit, 5 poverty & soc. pol’y brief 1 (2021), https://perma.cc/6tlj-8yj3) (“[the expanded federal child tax credit] pays the benefit out in regular installments: families can now receive monthly installments up to $250 for each older child and up to $300 for each younger child.”). 192 id. 193 id. (citing megan a.curran, research roundup of the expanded child tax credit: the first 6 months, 5 poverty & soc. pol’y rep. 1, 7 (2021), https://perma.cc/s4q9a4ay). 194 id. (citing claire zippel, 9 in 10 families with low incomes are using child tax credits to pay for necessities, education, ctr. on budget & pol’y priorities (oct. 21, 2021), https://www.cbpp.org/blog/9-in-10-families-with-low-incomes-are-using-child-taxcredits-to-pay-for-necessities-education [https://perma.cc/6c62-qbv4].). 195 id. (stating that eighty-eight percent of u.s. households with income below $35,000 used the tax credit for basic needs, including food, clothing, rent, utilities, and mortgages. ninety-one percent of families in the same cohort used the credit for the above basic needs, education costs, or both.) 196 id. (citing nicole l. kovski et al., short-term effects of tax credits on rates of child maltreatment reports in the united states, 150 pediatrics 1, 1, 2, 5 (2022)). 197 id. 1188 colum. j. of race & l. [vol. 15:1160 weeks after issuance.”198 for every $1,000 per-child a family received, the rates of reported maltreatment dropped by approximately 5%.199 earlier studies show the same, namely “evidence for an association between more generous eitcs and reductions in several indicators of child maltreatment, including hospital admissions for pediatric abusive head trauma, selfreported parenting behaviors that approximate neglect, foster care entries, and child protective services involvement.”200 additional funding to create better systemic supports can also play a meaningful role in creating healthier and safer home environments. in 2021, the aap found that state spending on benefit programs such as housing, cash, in-kind assistance, housing infrastructure, childcare assistance, refundable earned income tax credit, and medical assistance programs was strongly associated with reductions in child maltreatment.201 strikingly, the study showed that for every additional $1,000 states spent on benefit programs for people living in poverty, there was a 4.3% reduction in reports of abuse or neglect, 4% reduction in substantiation, 2% reduction in foster care placement, and a 7.7% reduction in child fatalities.202 poverty is a key driver in the child welfare system.203 this rings particularly true in new york city where the value of cash assistance has depreciated significantly, leaving more families unable to meet basic needs.204 rather than spending money on unnecessary, invasive, and harmful investigations, new york should spend those resources up front to better support families. reinvestment in people and communities likely will lower maltreatment report rates even further. e. new york must enact legislation to protect against harmful and unnecessary investigations 1. new york must pass the anti-harassment in reporting bill to reduce the number of children unnecessarily subjected to investigations the anti-harassment in reporting bill (also known as the confidential reporting bill)205 replaces anonymous reporting with confidential reporting, requiring all reporters to identify themselves to the investigator, to deter false and malicious reporting.206 that identification would not be conveyed to the subject of the report. eliminating anonymous 198 id. at 74. 199 id. at 73. 200 kovski, supra note 196, at 2. 201 friedman & rohr, supra note 35, at 72 (citing henry t. puls et al., state spending on public benefit programs and child maltreatment, 148 pediatrics 1, 1 (2021) (“states’ total spending was inversely associated with all maltreatment outcomes.”)). 202 id. at 73. 203 id. at 71–73. 204 annie kucklick & lisa manzer, overlooked & undercounted 3 (alyssa mast et al. eds., 2023), https://selfsufficiencystandard.org/wp-content/ uploads/2023/04/nyc2021_demo.pdf. 205 assemb. a66, 2025-2026 leg., reg. sess. (n.y. 2025); s.b. 550, 2025-2026 leg., reg. sess. (n.y. 2025). 206 id. see child. & l. comm. & council on child., n.y. city bar, support for the anti-harassment in reporting bill (2022), https://perma.cc/rt7l-bl2t. 2025] overreporting and investigation 1189 reporting would reduce unnecessary investigations, harm to children, intrusion on families, and would lessen the strain on child welfare resources without reducing child safety.207 while this bill was introduced in 2021, it remains pending today. as described in section ii.b., anyone can report suspected abuse or neglect to the scr at any time, for any reason, and may do so anonymously.208 anonymous reports are the least likely to be substantiated at a rate of 7%,209 and make up only 7% of all scr calls. 210 though by virtue of their anonymity it is impossible to determine the source of the reports, it stands to reason that a percentage of these reports are designed to harass the subject, particularly given the low substantiation rates. data scientists agree that this legislation “would allow ocfs and acs to more easily identify and screen out false and malicious reports, such as reports by exes or landlords that seek to weaponize the child welfare system.”211 given the extremely low rate of substantiation, coupled with the likelihood for harassment, anonymous reporting must be converted to confidential reporting. 2. new york must pass the family miranda bill and add specific reference to children’s rights to curtail extra-judicial intrusion, minimizing trauma laypeople can hardly imagine an arrest without the statement, “you have the right to remain silent, anything you say can and will be used against you.” in child welfare matters, a similarly pressing constitutional interest is at stake—the right to raise your children free of government intrusion and the concomitant right to be raised by your parents as such.212 yet, no similar formal statement of rights at the outset of a case is legally mandated in new york.213 section iii.b described acs’ unlawful practice of conducting home searching absent meaningful consent. comparatively, 207 see child. & l. comm. & council on child., n.y. city bar, supra note 206; see also rachel stanton & louise feld, new york state should act to prevent false reports of child maltreatment in custody cases, 271 n.y. l.j. 1, 6 (2024). 208 see supra section ii.b.; see also how to make a report, n.y.c. admin. for child. servs., https://www.nyc.gov/site/acs/child-welfare/how-to-makereport.page#:~:text =call%20311%20in%20nyc%20or,(800)%20342%2d3720 (last visited oct. 7, 2022) (stating that “[a]nyone can make a report [to scr] (and may do so anonymously), when they suspect child abuse or neglect.”). 209 see hotline calls, supra note 5. 210 madison hunt, ‘weaponizing’ calls to cps hotline: new york legislation would deter false reports, the imprint (may 19, 2022, 6:51 pm), https://imprintnews.org/childwelfare-2/new-york-bill-false-hotline-reports/65267. 211 hotline calls, supra note 5. 212 friedman & rohr, supra note 35, at 56. 213 as of july 2024, acs is providing all families with written notification of their rights at first contact with acs. however, that notification is not sufficient and often perfunctory. eric robinson, acs expands program to inform parents of rights amidst child welfare investigations, news 12 the bronx (jan. 18, 2024, 7:11 pm), https://bronx.news12.com/acs-expands-program-to-inform-parents-of-rights-amidst-childwelfare-investigations. 1190 colum. j. of race & l. [vol. 15:1160 states like texas provide family miranda warnings.214 the fact that acs can investigate a family without notifying the family of their rights prevents children and families from asserting those rights. the family miranda bill, first introduced in 2019, requires child protective investigators to inform parents and caretakers of their existing legal rights at the outset of an investigation.215 specifically, the bill requires parents to be notified that unless court ordered, they are not required to permit a child protective investigator into their home; they are entitled to be informed of the allegations against them; they are not required to speak to the child protective investigator, and any statements made to the investigator may be used against them; they are not required to permit the investigator to interview their children; and they are entitled to seek advice of an attorney and have that attorney present during an interview with the child protective investigator.216 these rights must be conveyed in the parent’s preferred language.217 in addition to enacting the family miranda bill, the legislature should amend the current iteration of the bill to reflect that these rights extend to the child and require the cps to provide the same notices to children aged-seven and over when they are outside the presence of their parents. cps approach children when they are home alone or unaccompanied out in the community with impunity. children must be made aware that they do not need to speak to a cps, allow a cps to strip search them, or allow cps in their home.218 if a parent or child is aware that they can deny acs entry into their home or access to their body, outside of emergency circumstances, acs will be forced to go to the family court to seek court orders and will have to establish reasonable cause to justify intruding into a family’s home or life. in fact, a prerequisite for a 1034 entry or production order is that the child or family denied acs access.219 if an individual is not aware of their rights, they are not able to assert those rights. families’ lack of awareness fuels the massive overreach of acs into children’s homes and lives, causing unquantifiable harms. presently, acs voluntarily provides parents with a perfunctory leaflet setting out their rights at the first contact, further addressed in section iii b. moreover, without enacting the family miranda bill, acs could discontinue the program at any time. without a meaningful statement of rights, children and families cannot be expected to animate those rights. 214 eli hager, texas, new york diverge on requiring miranda-style warnings in child welfare cases, propublica (july 5, 2023, 3:00 pm), https://www.propublica.org/ article/texas-new-york-diverge-miranda-warning-bill. 215 s.b. 551, 2025–2026 leg., reg. sess. (n.y. 2025); assemb. b. 1234, 2025–2026 leg., reg. sess. (n.y. 2025). 216 id. 217 id. 218 many thanks to theresa moser for the time spent thinking through this recommendation. 219 n.y. fam. ct. act § 1034(2)(b) (mckinney 2009). 2025] overreporting and investigation 1191 3. new york must pass the informed consent act to reduce inappropriate scr reports in new york city, medical providers, especially those in public hospitals, routinely administer non-consensual drug testing to pregnant women and newborns.220 unsurprisingly, studies show that black women are more likely than white women to be drug tested before or immediately after birth, despite equivalent rates of drug use.221 once a positive toxicology is detected, it is usually reported to the scr, irrespective of whether providers identified harm to the child, which is required before making an scr call.222 many call this practice “test and report,” akin to the infamous stop and frisk protocols carried out by the nypd. 223 “test and report,” without consent, is one of many root causes for over-reporting, and eliminating it, would further serve to stem the tide of unnecessary reports to the scr. “test and report” is contrary to the current medical guidance, leads to overreporting, and also negatively affects children.224 research shows that “fears of child welfare involvement have led to women of color delaying prenatal care, sometimes leading to adverse pregnancy outcomes.”225 children suffer when care is delayed or avoided due to fear. the informed consent act, first introduced in 2023, would require medical providers to obtain written and oral consent before drug testing a pregnant person or their newborn, except in the case of medical emergency, which permits a provider to test or verbally screen in the absence of consent.226 in november 2020, new york city health + hospitals required written informed consent prior to toxicology testing during pregnancy in the city’s 11 public hospitals.227 new york city child welfare and healthrelated agencies also issued a joint statement that “positive toxicology tests alone do not warrant reports to child welfare authorities.”228 this policy is 220 see legislative memo: prohibiting drug testing of pregnant people, nyclu (dec. 13, 2021), 1 https://www.nyclu.org/resources/policy/legislations/legislative-memoprohibiting-drug-testing-pregnant-people. 221 michael fitzgerald, new york city moves to limit drug testing of pregnant women, the imprint (nov. 20, 2020, 4:40 pm), https://imprintnews.org/child-welfare-2/newyork-city-limit-drug-testing-women-foster/49557. 222 drug testing new parents, brooklyn defenders, https://bds.org/issues/drugtesting-of-new-parents (last visited july 22, 2024). 223 see id. see also opposition to criminalization of individuals during pregnancy and the postpartum period, am. coll. of obstetricians & gynecologists, https://www.acog.org/clinical-information/policy-and-position-statements/statements-ofpolicy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period (last visited july 22, 2024); and fitzgerald, supra note 220. 224 am. coll. of obstetricians & gynecologists, supra note 223; stephen w. patrick & davida m. schiff, a public health response to opioid use in pregnancy, 139 pediatrics 1 (2017). 225 yasmeen khan, nyc will end practice of drug testing pregnant patients without written consent, gothamist (nov. 17, 2020), https://gothamist.com/news/nyc-willend-practice-drug-testing-pregnant-patients-without-written-consent (further stating even new policies meant to standardize screening procedures have actually further codified racial disparities). 226 assemb. b. a3694, 2025-2026 leg., reg. sess. (n.y. 2025). 227 fitzgerald, supra note 220. 228 id. 1192 colum. j. of race & l. [vol. 15:1160 consistent with new york law, as under family court act §§ 1012 and 1046(a)(iii), substance use alone does not constitute neglect.229 these policies articulated by city agencies, however, do not apply to private hospitals. while nyc agencies are pushing in the right direction, the informed consent act must be enacted into law to ensure these protections are upheld and endure, particularly in private settings. enacting the informed consent act will stem the tide of scr calls from hospital settings. as acs succinctly put it, eliminating “test and report” without consent, and clarifying that a positive test alone does not necessitate a call to the scr, are important steps “to reduce unnecessary and inappropriate child welfare involvement, especially for families of color.” 230 birth-related toxicology reports will not disappear altogether, but they will be reserved for instances where harm is suspected, and consent was either given or not necessary due to emergency circumstances. conclusion each year, nyc investigates nearly 100,000 children based on reports of abuse or neglect. more than three out of four of these cases are not substantiated, subjecting the children involved to traumatic intrusions into their homes and their bodies. in nearly all cases, acs conducts these searches without seeking or obtaining a warrant. given the modest substantiation rate, it is not reasonable to assume (and acs does not argue) that exigent circumstances arise commonly enough to explain acs’s near-routine failure to obtain court orders for its searches and seizures. coupled with the inherent coercion of a home search that makes meaningful consent all but impossible to obtain, acs’s investigative apparatus—justified by protecting children—violates families’ rights to privacy and harms the very children it aims to protect. the act of intruding on a child’s home or body is traumatic. violations of privacy and dignity of this magnitude should be narrowly tailored and used with care and only by necessity. the new york city child welfare system as it operates today fails to meet that standard. we hope to have shed light on the dangers acs’ current investigatory practice poses to children specifically, and call upon acs and new york lawmakers to make meaningful reform. 229 see nassau cnty, dep’t of soc. servs. on behalf of dante m. v. denise j., 87 n.y.2d 73 (1995). 230 fitzgerald, supra note 221. columbia journal of race and law vol. 11 july 2021 no. 3 article toward community control of child welfare funding: repeal the child abuse prevention and treatment act and delink child protection from family well-being angela olivia burton, esq. & angeline montauban* the child abuse prevention and treatment act mandates reporting, investigation, and prosecution of allegedly abusive and neglectful parents. commonly known as child protective services (cps), this family policing system uses the government’s police power to disrupt, surveil, control, and destroy hundreds of thousands of black families based on conditions of poverty framed as neglect. centering a black mother’s five-year long ordeal with new york city’s family policing system, we examine the carceral roots of cps and its destructive impacts on black families. we call for abolishing the cps family policing system; diversion of the billions invested in the foster industry to investment in quality-of-life resources de-linked from so-called “child protection”; and monetary reparations for generations of cps violence against black families. * angela olivia burton, esq., is the director of quality enhancement, parent representation at the new york state office of indigent legal services. this article was prepared in her personal capacity. the opinions expressed are her own and do not reflect the view of the new york state office of indigent legal services. angeline montauban is an educator and a social justice activist. we express our sincere gratitude to jasmine jamila wali for her generous and timely research support, and to miriam mack, nancy polikoff, claire gilligan, lucy mccarthy, and richard wexler for their valuable insight and encouragement. 640 colum. j. race & l. [vol. 11:639 i. introduction ........................................................................ 641 ii. the family experience: stuck in a labyrinth ............... 650 iii. criminalizing poverty: the carceral roots of the child abuse prevention and treatment act of 1974 ...... 662 a. historical background: a pretextual response— conflating poverty with abuse ................................... 663 b. how capta shapes state and local family policing practices and families’ lived experiences . 667 iv. trauma pimping: the foster care industry embedded in black communities .................................... 672 v. a reparations perspective on black child and family well-being ........................................................................... 676 a. abolish cps ................................................................. 676 b. divest from family policing; invest in communities ................................................................ 678 c. reparations: compensation for generational trauma ......................................................................... 678 vi. conclusion .......................................................................... 680 2021] toward community control 641 i. introduction slavery didn’t end in 1865, it just evolved. —bryan stevenson1 amid increasingly vigorous calls to abolish carceral systems like the police and prisons, the equally devastating violence wrought under color of law against black families by the so-called “child welfare” or “child protection” system is being brought into sharper focus. convened to celebrate the twentieth anniversary of professor dorothy roberts’ influential book, shattered bonds: the color of child welfare,2 this symposium, strengthened bonds: abolishing the child welfare system and re-envisioning child well-being, offers a platform to highlight the lived experience of black families terrorized by the family policing system and to propose concrete steps toward its abolition. featuring the personal reflections of co-author angeline montauban on her five-year long battle to rescue her son from new york city’s foster system, this article recognizes the connection between american chattel slavery and the present system of child-taking, and traces the system’s harmful impact on black families directly to the philosophy and design of the “child protective services” system (cps) created by the federal child abuse prevention and treatment act of 1974 (capta).3 this introduction provides important context to orient the reader and set the stage for ms. montauban’s personal reflections. cps is marketed to the public as a system “designed to promote the well-being of children by ensuring safety, achieving 1 emma seslowsky, bryan stevenson says ‘slavery didn’t end in 1865, it just evolved’, cnn: axe files (dec. 7, 2018, 7:45 pm), https://www.cnn.com/2018/12/07/politics/bryan-stevenson-axe-files/index.html [https://perma.cc/q8ld-kdgq]. 2 dorothy e. roberts, shattered bonds: the color of child welfare (2002) [hereinafter roberts, shattered bonds]. 3 42 u.s.c. §§ 5101–5116i. originally enacted in p.l. 93-247, capta has been amended numerous times, most recently on january 7, 2019 by the victims of child abuse act reauthorization act of 2018 (p.l.115-424). child.’s bureau, admin. for child. & fams., u.s. dept. health & hum. servs., about capta: a legislative history (2019), https://www.childwelfare.gov/pubpdfs/about.pdf [https://perma.cc/unb8l6v2]. https://www.cnn.com/2018/12/07/politics/bryan-stevenson-axe-files/index.html 642 colum. j. race & l. [vol. 11:639 permanency, and strengthening families.”4 to the contrary, data from the federal children’s bureau’s periodic review of state child welfare systems’ performance,5 indicates that cps is an utter failure even by its own standards.6 moreover, as discussed below, in addition to its carceral nature as a tool of social control, cps actively and demonstrably makes black children less safe, destabilizes their living situation, creates debilitating physical and mental health challenges, and diminishes their life chances. thus, the article’s central thesis is that abolishing cps must be a top priority within the movement to defund and abolish all carceral institutions. the article will sometimes use the term “family policing system” instead of commonly used terms like the “child welfare system,” “child protective services,” and “foster care.” as professor roberts observes, “this system is not about child or family welfare, protection, or care.”7 for her, “[p]olicing captures what this system does. it polices families with the threat of 4 child welfare info. gateway, how the child welfare system works 2 (2020), https://www.childwelfare.gov/pubpdfs/cpswork.pdf [https://perma.cc/ck3v-48zj]. 5 child.’s bureau, admin. for child. & fams., u.s. dept. health & hum. servs., fact sheet: child and family services reviews, https://www.acf.hhs.gov/sites/default/files/documents/cb/cfsr_general_factsheet. pdf [https://perma.cc/y7fq-8n4l] (last visited june 30, 2021) (describing federal review process of state child welfare systems); 6 see generally child.’s bureau, child and family services reviews aggregate report: round 3: fiscal years 2015–2018 (2020), https://www.acf.hhs.gov/cb/report/child-and-family-services-reviews-aggregatereport-round-3-fiscal-years-2015-2018 [https://perma.cc/y66s-knrb] (describing results of federal examination of the strengths and areas needing improvement in state child welfare systems); child.’s bureau, cfsr round 3 report for legal and judicial communities (2021), https://www.acf.hhs.gov/cb/report/cfsr-legal-judicial-communities-report [https://perma.cc/mn98-zkfw]. 7 abolition is the only answer: a conversation with dorothy roberts, rise mag. (oct. 20, 2020) [hereinafter abolition is the only answer], https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [https://perma.cc/j57z-zex6] (interview with dorothy roberts). others have challenged the conventional terminology of the so-called child welfare system as well. see, e.g., emma williams, ‘family regulation,’ not ‘child welfare’: abolition starts with changing our language, imprint (july 28, 2020, 11:45 pm), https://imprintnews.org/opinion/family-regulation-not-child-welfareabolition-starts-changing-language/45586 [https://perma.cc/j76w-revz]; molly schwartz, do we need to abolish child protective services? inside one parent’s five-year battle with the ‘family destruction system’, mother jones (dec. 10, 2020), https://www.motherjones.com/politics/2020/12/do-we-need-to-abolishchild-protective-services/ [https://perma.cc/h7n2-7bj4]. https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ https://imprintnews.org/opinion/family-regulation-not-child-welfare-abolition-starts-changing-language/45586 https://imprintnews.org/opinion/family-regulation-not-child-welfare-abolition-starts-changing-language/45586 2021] toward community control 643 taking children away. even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. it is a form of punishment, harm and oppression.”8 child-taking and the threat of child-taking is the operative through line from american chattel slavery to the present-day family policing system. 9 in shattered bonds, professor roberts highlights black mothers’ particular vulnerability to entrapment by the family policing system. exposing the system’s racialized and gendered impact, she challenges us to identify “steps that we can take to transform the system toward respecting the integrity of black families,” while providing resources necessary for black children to thrive. 10 today, professor roberts calls for abolishing the system altogether.11 this article joins in that call and seeks to contribute to its success by spotlighting important structural features at the root of the system we seek to dismantle. in 1974, with the enactment of capta, congress created cps, the nationwide “child protective services” program of reporting, investigation, and prosecution of allegedly abusive or neglectful parents.12 in tandem with doctors, teachers, police, providers of essential social service supports (such as domestic 8 abolition is the only answer, supra note 7. see also leroy h. pelton, commentary, how can we better protect children from abuse and neglect, 8 future child. 126, 126–27 (1998) (“the fundamental structure of the public child welfare system is that of a coercive apparatus wrapped in a helping orientation. agencies ostensibly having the mission to help are mandated to ask whether parents can be blamed for their child welfare problems, and these agencies have the power to remove children from their homes.”). 9 for an excellent exposition connecting the current family policing system to chattel slavery and the mass displacement of native american children, see emma peyton williams, dreaming of abolitionist futures, reconceptualizing child welfare: keeping kids safe in the age of abolition, 22– 44 (apr. 27, 2020) (b.a. thesis, oberlin college). see also laura briggs, taking children: a history of american terror (2020). 10 roberts, shattered bonds, supra note 2, at viii. 11 dorothy roberts, how the child welfare system polices black mothers, scholar & feminist online, (2019) [hereinafter roberts, black mothers], https://sfonline.barnard.edu/unraveling-criminalizing-webs-buildingpolice-free-futures/how-the-child-welfare-system-polices-black-mothers/ [https://perma.cc/8n9m-gxrz]. 12 see child.’s bureau, admin. for child. & fams., u.s. dept. health & hum. servs., how the child welfare system works (2020), https://www.childwelfare.gov/pubpdfs/cpswork.pdf [https://perma.cc/72lcfg6e] (describing reporting and investigation processes of cps and potential outcomes for families). https://www.childwelfare.gov/pubpdfs/cpswork.pdf 644 colum. j. race & l. [vol. 11:639 violence, child care, public housing, emergency and temporary shelter, mental health, substance abuse, and other services), and other professionals legally mandated to report suspected maltreatment (“mandated reporters”), cps polices families in accordance with carceral principles of surveillance, social control, and punishment. capta’s foundational requirements of mandated reporting and cross-systems collaboration dictates a “stop-and-frisk” type referral system13 that feeds hundreds of thousands of black families into the parasitic public/private foster industrial complex—a highly lucrative, “self-protecting ecosystem” fueled by “taking other people’s children.”14 when we think of the prison industrial complex, we think of massive spaces that employ some people to keep thousands more in bondage. like the prison industrial complex, the foster industrial complex reflects principles associated with american slavery: it is a large operation and network of systems, organizations, and individuals that depends on a steady recruitment of bodies for its existence—disproportionately the bodies of black children. states take a staggering number of black children into “protective custody” every year. in 2018, over 400,000 children were in the foster system.15 comprising about 14% of the total united states child population, in 2018, black children were 23% (97,520) of the foster system population.16 by age 18, an astounding 53% of black children will have been subjected to a cps investigation as compared to 37% of all united states children.17 13 michelle burrell, what can the child welfare system learn in the wake of the floyd decision?: a comparison of stop-and-frisk policing and child welfare investigations, 22 cuny l. rev. 124 (2019). 14 tedx talks, rethinking foster care: molly mcgrath tierney at tedxbaltimore 2014, youtube, at 4:45–5:15 (feb. 27, 2014), https://www.youtube.com/watch?v=c15hy8dxsps [https://perma.cc/7yuk7rng]. 15 see child.’s bureau, admin. for child. & fams., u.s. dept. health & hum. servs., the afcars report 1 (2020) [hereinafter afcars report], https://www.acf.hhs.gov/sites/default/files/documents/cb/ afcarsreport27.pdf [https://perma.cc/z6t6-ebb2]. 16 black children continue to be disproportionately represented in foster care, kids count data ctr. (april 13, 2020), https://datacenter.kidscount.org/updates/show/264-us-foster-care-populationby-race-and-ethnicity [https://perma.cc/g9yd-66fj]. 17 hyunil kim et al., lifetime prevalence of investigating child maltreatment among us children, 107 am. j. pub. health 274, 278 (2017). https://www.youtube.com/watch?v=c15hy8dxsps https://datacenter.kidscount.org/updates/show/264-us-foster-care-population-by-race-and-ethnicity https://datacenter.kidscount.org/updates/show/264-us-foster-care-population-by-race-and-ethnicity 2021] toward community control 645 the racist slave era ideology, which bryan stevenson calls the “presumption of dangerousness and guilt,” brands black people as inherently inferior, violent, and dangerous.18 in the family policing system, parents are presumed dangerous and guilty from the moment an allegation of abuse or neglect is made against them.19 this presumption of parental dangerousness is a powerful factor in how street-level government agents (cps caseworkers) exercise governmental police power in their interactions with black families.20 despite its carefully-crafted public image of providing “services” to protect children and promote their well-being, many families experience cps as a coercive and punitive intervention that leaves children less safe and families worse off.21 most cps cases involve neglect only—over 60% in 2018.22 “neglect” is a nebulous, inconsistently-defined concept associated with parenting while poor and parenting while black. 23 a 18 isaac chotiner, bryan stevenson on the frustration behind the george floyd protests, new yorker (june 1, 2020), https://www.newyorker.com/ news/q-and-a/bryan-stevenson-on-the-frustration-behind-the-george-floydprotests [https://perma.cc/k7sd-26mg] (interview with bryan stevenson, founder of the equal justice initiative). 19 burrell, supra note 13, at 127 (observing that there is “an automatic stigma that attaches when someone’s ability to parent is called into question, and the presumption that follows is that removals of children from households having child protective intervention are always justifiable and in the best interests of children and families. this belief is fueled by the reality that the media primarily covers stories of child death and serious abuse, which are only a small percentage of what is being investigated” (citations omitted)) 20 see, e.g., chris gottlieb, black families are outraged about family separation within the u.s. it’s time to listen to them, time (march 17, 2021, 9:00 am), https://time.com/5946929/child-welfare-black-families/ [https://perma.cc/5k6e-ys8a] (noting that low-income black and brown parents who are disproportionately targeted by cps explain that “fearmongering about child abuse has empowered child protective authorities to unfairly target their communities and invade their homes with virtual impunity. . . . caseworkers routinely demand entry into homes in the middle of the night without warrants. the interrogations are frightening; the strip searches degrading. far too often, they end with the trauma of children pulled from their parents’ arms”). 21 see, e.g., darcey h. merritt, lived experiences of racism among child welfare-involved parents, 13 race & soc. probs. 63, 69 (2021) [hereinafter merritt, lived experiences]; kelly fong, getting eyes in the home: child protective services investigations and state surveillance of family life, 85 am. socio. rev. 610 (2020); darcey h. merritt, how do families experience and interact with cps?, 692 annals am. acad. pol. & soc. sci. 203 (2020). 22 afcars report, supra note 15, at 1. 23 see, e.g., jerry milner & david kelly, it’s time to stop confusing poverty with neglect, child.’s bureau express (jan. 2020), 646 colum. j. race & l. [vol. 11:639 “coercive apparatus wrapped in a helping orientation,” 24 the system treats poverty-related circumstances of families as criminal wrongdoing, focusing its front-end activities primarily on investigating parents “to see whether they should be blamed for their children’s harmful environment and whether their children should be removed from it.”25 family defense scholar vivek sankaran observes that while a few cases might involve parents “who intentionally withhold” basic necessities such as food, clothing, and shelter from children, “the vast majority will be parents who were simply too poor to provide them. combine such a broad definition of neglect with racial bias, and you get a system full of children of color traumatized by family separation inflicted in the name of ‘saving’ them.” 26 this needlessly accusatorial and punitive system creates an extremely wide front door through which black families are disproportionately funneled into the highly lucrative foster industry for reasons of poverty. foster care agencies and contract service providers are the system’s frontline “family probation” officers, and are generously paid to surveil and manage the daily lives of cps and court-involved families. in 2019, 53% of the roughly 8,000 children in the new york city foster system were black. 27 additionally, in 2018, under the rubric of “prevention services” the families of another 44,542 new york city children were under the surveillance of private agencies contracted by the city’s family policing agency, the administration for children’s https://cbexpress.acf.hhs.gov/index.cfm?event=website.viewarticles&issueid=2 12&sectionid=2&articleid=5474 [https://perma.cc/z4j9-cgvr]; dorothy roberts and lisa sangoi, black families matter: how the child welfare system punishes poor families of color, appeal (march 26, 2018), https://theappeal.org/black-families-matter-how-the-child-welfare-systempunishes-poor-families-of-color-33ad20e2882e/ [https://perma.cc/fk5p-fqc7]. 24 pelton, supra note 8, at 126. 25 see roberts, shattered bonds, supra note 2, at 148. 26 vivek sankaran, with child welfare, racism is hiding in the discretion, imprint (june 12, 2020, 11:00 pm), https://imprintnews.org/childwelfare-2/with-child-welfare-racism-is-hiding-in-the-discretion/44616 [https://perma.cc/up5b-rzys]. see also diana j. english et al., toward a definition of neglect in young children, 10 child maltreatment 190 (2005). 27 n.y. state off. of child. & fam. servs., 2019 monitoring and analysis profiles with selected trend data: 2015–2019, at 7 (2019), https://ocfs.ny.gov/main/reports/maps/counties/new%20york%20city.pdf [https://perma.cc/7a5x-wes4]. https://cbexpress.acf.hhs.gov/index.cfm?event=website.viewarticles&issueid=212&sectionid=2&articleid=5474 https://cbexpress.acf.hhs.gov/index.cfm?event=website.viewarticles&issueid=212&sectionid=2&articleid=5474 https://imprintnews.org/child-welfare-2/with-child-welfare-racism-is-hiding-in-the-discretion/44616 https://imprintnews.org/child-welfare-2/with-child-welfare-racism-is-hiding-in-the-discretion/44616 2021] toward community control 647 services (acs).28 the parents of these children are routinely subjected to oppressive, intrusive, and often disrespectful oversight of their parenting and inspection of the intimate details of their lives by employees of these private agencies.29 the 2021 budget for acs totals $2.69 billion.30 the “children’s services” provided by the 7,424 acs employees consist of investigations, child removal, and “case work,” to the tune of $537.5 million,31 with more than half of the total—$1.53 billion—paid to the 573 private contractors of preventive, foster, and adoption services.32 [these private agencies] are involved in a lucrative business that depends on keeping children in the system. the more children placed in foster care and the longer they are kept there, the more money the agencies make. there is no financial incentive, on the other hand, to reunite children quickly with their parents. . . . “they can’t make money if the children are returned home.”33 abuse of children in state “protective custody” is common, 34 especially in placements managed by private 28 admin. for child.’s servs., children* served by child welfare prevention services by home borough/cd, cy 2018 (2018), https://www1.nyc.gov/assets/acs/pdf/data-analysis/2018/cwchildrenreceiving preventiveservicescy2018.pdf [https://perma.cc/9c5b-5jqf]. 29 merritt, lived experiences, supra note 21, at 69–70. 30 the council of the city of n.y., fin. div., report of the finance division on the fiscal 2021 preliminary financial plan, fiscal 2021 preliminary capital budget, fiscal 2021 preliminary capital commitment plan, and the fiscal 2020 preliminary mayor’s management report for the administration for children’s services 1 (march 23, 2020), https://council.nyc.gov/budget/wp-content/uploads/sites/54/2020/04/068acs.pdf [https://perma.cc/v9rd-8bup]. according to this report, acs spending on “core acs responsibilities like investigating child abuse and placing children into foster care, has increased by approximately $150 million since fiscal 2017, in direct response to a series of tragic child fatalities in 2016.” id. at 3. 31 id. at 1. 32 id. at 4. the top four largest individual acs program areas in child welfare are foster care services($579.5 million); preventive services($335.3 million); protective services($321.4 million); and adoption services($273.5 million). id. at 9. 33 roberts, shattered bonds, supra note 2, at 73 (quoting anita rivkin-carothers). 34 see, e.g., andrew c. brown, using efficiency audits to improve child welfare (2020), https://files.texaspolicy.com/uploads/2020/09/01134412/ brown-efficiency-audits-child-welfare.pdf [https://perma.cc/tg4j-utv5]; https://council.nyc.gov/budget/wp-content/uploads/sites/54/2020/04/068-acs.pdf https://council.nyc.gov/budget/wp-content/uploads/sites/54/2020/04/068-acs.pdf 648 colum. j. race & l. [vol. 11:639 contractors.35 a 2015 report of the senate finance committee of the united states congress found that many children under management by state-contracted private foster system agencies are “abused, neglected, and denied services,” and that private companies “too often failed to provide even the most basic protections, or to take steps to prevent the occurrence of tragedies.”36 also in 2015, federal judge janis jack ruled in a class action lawsuit, m.d. v. abbott,37 that children in the custody of the texas department of family and protective services were put at an unacceptable risk of physical and sexual abuse, and that those children leave the system “damaged, institutionalized, and unable to succeed as adults.”38 after years of abuse, neglect, and inappropriate placements, the judge said, “the state has created a population that cannot contribute to society.”39 in 2019, black children were just 11% of the state’s total child population but accounted for 20% of children in the texas foster system.40 in addition, children in the foster system are particularly vulnerable to sex trafficking,41 putting black children at higher kristen johnson et al., improving child safety and well-being in foster and relative placements: findings from a joint study of foster child maltreatment (2014); richard wexler, nat’l coal. for child prot. reform, foster care vs. family preservation: the track record on safety and well-being (2015). for more reporting and data on mistreatment, see id. at 2 nn.1–17. 35 see, e.g., mandi eatough, foster care privatization: how an increasingly popular public policy leads to increased levels of abuse and neglect, 34 sigma j. pol. & int’l studs. 51 (2017). 36 staff of s. comm. on fin., 115th cong., an examination of foster care in the united states and the use of privatization 2 (comm. print 2017). 37 m.d. v. abbott, 152 f. supp. 3d 684 (2015). 38 id. at 718. 39 id. at 823. 40 kate murphy, racial justice requires improvements to the texas cps system, texans care for child. (sept. 14, 2020), https://txchildren.org/posts/2020/9/14/racial-justice-requires-improvements-tothe-texas-cps-system [https://perma.cc/bv4w-7js8]. 41 see e.g., dawn post, why human traffickers prey on foster-care kids, city limits (jan. 23, 2015), https://citylimits.org/2015/01/23/whytraffickers-prey-on-foster-care-kids/ [https://perma.cc/rvt4-yct4]; preventing and addressing sex trafficking of youth in foster care: hearing before the subcomm. of hum. res. of the h. comm. on ways and means, 113d cong. 38 (2013) (statement of john d. ryan, chief executive officer, national center for missing and exploited children); firas nasr et al., human trafficking search, foster care and human trafficking: a state-by-state evaluation 4 (2017), https://humantraffickingsearch.org/wp-content/uploads/ 2017/09/foster-care-report.pdf [https://perma.cc/d78w-26zw]. https://humantraffickingsearch.org/wp-content/uploads/2017/09/foster-care-report.pdf https://humantraffickingsearch.org/wp-content/uploads/2017/09/foster-care-report.pdf https://humantraffickingsearch.org/wp-content/uploads/2017/09/foster-care-report.pdf 2021] toward community control 649 risk of falling victim to commercial sexual exploitation than their counterparts in the general population.42 equally as tragic, black children are also disproportionately subject to the welldocumented over-prescription and inappropriate use of psychotropic drugs on children in the foster system.43 compounding these shameful system abuses, black children bear the brunt of the poor life outcomes associated with being raised by the state.44 “across a wide range of outcome measures, including postsecondary educational attainment, employment, housing stability, public assistance receipt, and criminal justice system involvement, these former foster youth are faring poorly as a group.”45 the poor outcomes and trauma suffered by government raised black children indicate that they need protection from the system, not from their parents.46 “they 42 kate walker & fiza quraishi, from abused and neglected to abused and exploited: the intersection of the child welfare system with the commercial sexual exploitation of children 9 (2014), https://www.thorn.org/wp-content/uploads/2015/02/csec-child-welfarereport.pdf [https://perma.cc/28pm-rr2l]. 43 see, e.g., psychotropic medications: research and reports, child.’s bureau, admin. for child. & fams., u.s. dept. health & hum. servs, https://www.childwelfare.gov/topics/systemwide/bhw/medications/reports/ [https://perma.cc/k48g-q4lq] (last visited june 30, 2021) (compiling research and reports regarding psychotropic medications, with a focus on children and youth involved with the child welfare system); angela olivia burton, “they use it like candy”: how the prescription of psychotropic drugs to state-involved children violates international law, 35 brook. j. int’l l. 454 (2010). 44 see, e.g., kristin turney & christopher wildeman, mental and physical health of children in foster care, pediatrics, nov. 2016, at 1; study shows foster care is bad for your health, child.’s home soc’y minn. & lutheran soc. serv. minn. (oct. 19, 2016), https://chlss.org/blog/study-showsfoster-care-is-bad-for-your-health/ [https://perma.cc/r3fs-gs3w]; joseph j. doyle, jr., child protection and child outcomes: measuring the effects of foster care, 97 am. econ. rev. 1583 (2007). 45 mark e. courtney et al., midwest evaluation of adult functioning of former foster youth: outcomes at age 26, at 6 (2011). see also laura gypen et al., outcomes of children who grew up in foster care: systematic-review, 76 child. & youth servs. rev. 74 (2017). 46 see, e.g., stephanie ledesma, the vanishing of the african american family: ‘reasonable efforts’ and its connection to the disproportionality of the child welfare system, 9 charleston l. rev. 29, 35 (2014) (citing ruth mcroy, expedited permanency: implications for african-american children and families, 12 va. j. soc. pol’y & l. 475, 487 (2005)) (children removed from their parents by cps referred to their experiences as having been taken because they thought police had targeted them rather than having been rescued from unfit parents); monique b. mitchell & leon kuczynski, does anyone know what’s 650 colum. j. race & l. [vol. 11:639 call themselves child protection services,” says abolitionist joyce mcmillan, “but, to be honest, the only thing i see them protecting children from is success.”47 this article proceeds as follows. in part ii, ms. montauban relates her experience as a black mother who overcame countless injustices and indignities to successfully reunite with her son after a five-year battle with new york city’s foster system. part iii examines the role played by the ideology of parental dangerousness in the design of the family policing system created by the federal child abuse prevention and treatment act of 1974 and draws connections between black parents’ experiences with cps and key provisions of the law. part iv of the article maps what professor roberts calls the “racial geography of child welfare,”48 the insidious presence of cps in virtually every aspect of the lives of black families in new york city’s under-resourced neighborhoods, and shines a spotlight on the parasitic multi-billion-dollar public/private foster industry that commodifies impoverished black families for government revenue and private profit. part v is a call to action to abolish the punitive and oppressive cps system of reporting, investigation, and prosecution of families for alleged child maltreatment, to divest funding from the foster industry and invest in community resources de-linked from the family policing system, and for monetary reparations for damages inflicted by the system on generations of black children and their families. ii. the family experience: stuck in a labyrinth most people have a distorted view of the so-called child welfare system in america; their views are limited to the idea that cps exists to protect orphaned children or children with unfit parents. the general public has not grasped the depth and magnitude of the destructive operations of an industry that has from its inception produced the worst outcomes for children and going on? examining children’s lived experience of the transition into foster care, 32 child. & youth servs. rev. 437, 440 (2010). 47 joyce mcmillan, poverty framed as neglect, franknews (aug. 12, 2020), http://www.franknews.us/interviews/425/poverty-framed-as-neglect [https://perma.cc/6m82-9spb]. 48 dorothy e. roberts, the racial geography of child welfare: toward a new research paradigm, 87 child welfare 126 (2008) [hereinafter roberts, racial geography]. 2021] toward community control 651 their families. “child protective services”—more accurately described as the family police—intersects with virtually every aspect of the daily experience of many black families, especially—but not exclusively—those living in under-resourced communities. the child protection or “child welfare system” feeds black families into the foster industry, a confusing web of interconnected and interdependent government agencies, private foster care organizations, and government-funded and government-controlled community-based service providers. once entrapped in this labyrinth, parents find it hard to get out. i came into contact with the family destruction system in new york city when my son was two years old, at a tender age when children are bonding with their parents. it wasn’t long before i came to realize that it would be extremely hard for me to get out, which is what most parents want after the full realization that their children are trapped in a system that is not designed to meet their needs. i was a victim of domestic violence, and as a result of my outreach to safe horizon, a widely-advertised domestic violence abuse hotline, a cps specialist from acs knocked on my door. once i opened the door, my criminalization began. i had reached out to safe horizon for help, and without my knowledge or permission, safe horizon called in a report against me to cps. i later learned that safe horizon not only received funding from the acs, but that linda fairstein,49 the prosecutor in the central park jogger case, was on its board of directors for years and was only recently forced to resign after the premiere of the film when they see us,50 directed by ava duvernay, in 2019. from the new york county prosecutor’s office to safe horizon, linda fairstein was afforded many opportunities to do harm to black families. when my son was placed into foster care, the first foster care agency involved was edwin gould services for children and families—which in 2018 was acquired by rising ground (formerly known as leakes & watts), in a deal which, according to rising ground’s ceo, was motivated by “the shrinking foster 49 tanasia kenney, ‘she has to pay for her crime’: staffers at nonprofit organization demand linda fairstein be removed from board, atlanta black star (june 4, 2019), https://atlantablackstar.com/2019/06/04/she-has-topay-for-her-crime-staffers-at-nonprofit-organization-demand-linda-fairstein-beremoved-from-board/ [https://perma.cc/58fg-jxhu]. 50 when they see us (harpo films may 31, 2019). 652 colum. j. race & l. [vol. 11:639 care population.”51 during the first six months navigating the foster care system in new york city, the first two case planners assigned to my case resigned. frequent turnover in case planners is common and contributes to delays in children returning home. the first case planner resigned in 2013, two weeks after my son was placed in foster care. the second case planner was assigned to my case in january 2014, three months later. she resigned two months later. this meant that my child’s needs were not met, and my concerns were not addressed. the foster care unit at edwin gould services for children and families was extremely mismanaged. for example, my son, a native english speaker, was placed in a spanish-speaking home with a foster parent who did not speak english. after my numerous complaints about edwin gould’s operations and practices, my case was transferred to children’s village, another foster care agency. children’s village, a colossal complex with a massive plantation-sized campus in dobbs ferry, new york, is where my case remained for the next four years. from the beginning, i wanted my legal rights as a parent to be acknowledged and respected. children’s village decided to go to war with me for exercising my legal rights as a parent. children’s village made it difficult for my son to see a pediatrician of my choice and to attend a school that i selected. my supervised visits were suspended on many occasions without just cause, and the foster care agency was not responsive to my concerns. the most severe retaliation: their refusal to reunify and to return my son to my care. because i raised concerns, filed grievances, and complained to my local elected officials about the abuse of power, mismanagement, and the neglect and abuse of children in foster care that i personally encountered, i experienced various forms of backlash meant mostly to silence me and break me down. it took five years for my son to return to my care. once my case was transferred to children’s village, it became obvious to me that i was a target. my son was placed with a foster parent who was promised that the child would be free for adoption. her desire to adopt my child conjured up many conflicts. i pursued dyadic parent-child therapy at the jewish board of family 51 jonathan lamantia, two human-services nonprofits join forces, crain’s n.y. bus., (aug. 20, 2018, 12:00 am), https://www.crainsnewyork.com/article/20180820/health_care/180829989/ two-human-services-nonprofits-join-forces. 2021] toward community control 653 services to avoid supervised visits at the foster care agency, which became more and more hostile. but that foster mother— whose lies were partly responsible for many suspended visits— made some mishaps that prompted the dyadic therapist to call the nyc central registry on her. and because she was a foster parent, the acs’s office of special investigations conducted an investigation. as a result, my son was placed in another home with a new foster parent. in 2016, children’s village petitioned the court to terminate my parental rights. my son had a new foster father, who was not “evil” like the previous foster mother. he was instrumental in my son coming home. children’s village wanted him to adopt my son, but due to his age and health issues, he was not interested. he testified on my behalf during the termination of parental rights (tpr) hearing and affirmed that my son wanted to be returned to his mother. still, he was pressured to adopt my son, even after his numerous refusals. extending the stay of children in foster care is a common retaliatory tactic used by foster care agencies to torment and control parents. i came to learn that the first year of foster care placement is crucial; if a child stays in foster care for over a year, reunification becomes even more difficult. although in reports submitted to family court, the foster care agency claimed that the permanency goal was reunification, i discovered that the first social worker assigned to my case was titled an “adoption social worker.” at my family court appearances, the foster care agency produced reports that were infested with gross misrepresentations. most of the court reports and permanency hearing reports were infested with lies claiming that the agency was making reasonable efforts while the agency instead was making efforts to terminate my parental rights and deem my son a ward of the state in retaliation for my growing advocacy in exposing the injustices that parents like myself faced. rather than working towards reunification, the agency instead engaged in continued harassment and retaliation that took many forms like suspending my visits, refusal to make reasonable efforts, and dismissing numerous legitimate concerns. once a case ends up in family court, not only does the clock start ticking toward termination of parental rights, but the probability also increases that the judge will order foster care placement, especially if the parent is poor and black. after five years of stepping in and out of the new york county family 654 colum. j. race & l. [vol. 11:639 court, i can safely say that the court system plays a major role in extending the stay of children in foster care and works a great injustice on many families. in new york city, not only do black children enter foster care at an alarming rate, they also stay in foster care longer than children of any other race.52 the obvious explanation is the lack of regard and respect for black people in the united states. black people are dehumanized by all systems they come into contact with, from the public school system, to the juvenile justice system, and to the criminal justice system. i cannot imagine white children unnecessarily lingering in foster care for five to ten years without great efforts being made to reunify them with their families or to ensure they have a better childhood. foster care is a dead-end for children and their families. once a family enters the foster care system, it is extremely hard for them to get out of the system because of the network of the so-called professionals working against the best interest of families. this network of people employed by the foster care agencies are: the senior staff (including dozens of vice presidents and endless executives at the administrative level), then the staff at the local site levels which includes caseworkers, social workers, supervisors, managers, medical professionals, and other professionals. these professionals are at many levels working synergistically to keep children in the system as wards of the state. it is their survival mechanism and business model. this is indeed one of the main reasons that many children remain in foster care for years. the power dynamics between parents and the foster care agency are very important to analyze because they provide a deeper understanding of some of the reasons why black children stay in foster care longer than children of any other race. this antagonistic relationship between parents and the system has many roots, but is due primarily to the amount of disrespect that parents experience. in my case, there were many examples of disrespectful behavior of agency workers toward me: parent-child 52 associated press, many say now is the time to fight racial bias in foster care, u.s. news & world report (april 14, 2021, 12:24 pm), https://www.usnews.com/news/us/articles/2021-04-14/many-say-now-is-thetime-to-fight-racial-bias-in-foster-care (“bias and racism are widespread in the child welfare system. black children are taken into foster care at a disproportionally high rate and languish longer before being adopted, reunited with their parents or aging out of the system.”). 2021] toward community control 655 visits cancelled without notice, constant misinformation, refusal to work with me, and informing the foster parent that my child would soon be available for adoption even though the permanency goal was reunification. additionally, i was prevented from effectively planning for my son’s education and prevented from participating in my son’s doctor’s and school visits. i objected to my son’s seeing the agency’s contracted pediatrician. i was adamant about my son seeing a pediatrician of my choice and fought to exercise my legal rights as a parent. even when i completed the mandated “reunification” services, the caseworker said that i did not gain any insight due to my continued criticism and resistance to the system in place. the foster care agency refused to acknowledge the positive reports and reviews from professionals that provided a second opinion. my experience mirrors professor roberts’ observation that: friction between black mothers and case workers often leads to bad outcomes for black families. caseworkers are instructed to treat the degree of parents’ cooperation as evidence of the child’s risk of harm. when reported families do not cooperate with the investigating agency, their case is more likely to be referred to court. . . . parents are expected to be remorseful and submissive. any disagreement with the agency’s proposed plan is reported as evidence of unwillingness to reform.53 i could not trust the social worker assigned to my case. when i inquired as to why an adoption social worker was assigned to my case when the goal was reunification, the social worker’s title was immediately changed but she remained as my social worker. additionally, she disregarded, invalidated, and undermined the positive reviews and reports that i received from independently certified providers. the bi-annual family team conference was more of a compliance dog-and-pony show rather than a discussion of what kinds of meaningful efforts needed to be made to meet the best interests of my child and making plans towards reunification. the meetings were about producing reports to show that they were making the legally-required 53 roberts, shattered bonds, supra note 2, at 66. 656 colum. j. race & l. [vol. 11:639 “reasonable efforts”54 to reunify me and my son in order to justify their federal subsidy. truly, that is the heart of the problem confronting families: the professionals put in place to support them, to guide them, and to engage them in case-planning cannot be trusted and are part of the larger systemic problem. there are many layers to this problem: case-planning is merely meeting basic mandates and producing reports for court, but the real work of engaging, motivating, and empowering families seldomly gets done. there are no opportunities for restorative relationshipbuilding because of the antagonistic power dynamics: parent against foster care agency or parent against cps. this antagonistic relationship exists because the foster care experience functions like prison for children and their parents; it is forced placement for parents and for children. looking back, it very much mirrors a “behavior modification program.”55 dorothy roberts has “used the term to describe welfare programs because their purpose is to change the behavior of recipients, not to provide them with assistance in caring for their children.” 56 whether in the criminal policing system or the family policing system, there is a clear power structure: the guards have the power, and the prisoners do not. i was constantly reminded of my powerless place in the hierarchy and was expected to behave accordingly. i was expected to obey and comply, to be in agreement, to be silent, and to be agreeable. there are steep consequences for parents who dare to challenge or question the system. as dorothy roberts notes, “[p]erceptions of cooperativeness are greatly influenced by the parent’s race. because of negative stereotyping, black mothers are perceived as hostile and less amenable to rehabilitation.”57 it is not long before parents come to realize that the professionals put in place to support them are instead working to undermine and misguide them to help build a documented case for why their children should remain in foster care. 54 adoption assistance and child welfare act of 1980, 42 u.s.c. § 671(a)(15). 55 see, e.g., edward p. sarafino, behavior modification: principles of behavior change (2d ed. 2004). 56 e-mail from dorothy roberts, george a. weiss univ. professor of l. & socio., raymond pace & sadie tanner mossell alexander professor of c.r., professor of africana studs., univ. of pa., to authors (june 21, 2021, 8:30 am) (on file with authors). 57 roberts, shattered bonds, supra note 2, at 66. 2021] toward community control 657 parents are thrust into an environment where they are afraid to be vulnerable because vulnerability is seen as a disease that needs to be treated. in the family policing system, mental health evaluations are ordered to assess the extent of the alleged disease of “child abuse and neglect” and to justify removals and the need for cps interventions. their use in cps interventions do not derive from a culturally-responsive framework for diagnosing and treating mental health issues. instead, they are used as a prosecutorial tactic against families. critiquing the cps mindset that equates poverty with individual pathology, diane redleaf explains that “[c]hild protective workers typically come to homes armed with psychological assessment questionnaires, when what they should bring are housing vouchers and groceries. we seem to have a pathological need to pathologize families instead of helping them with their obvious needs.”58 when cps intervenes into a family, parents are thrust into an environment where they are afraid to express their needs because their declaration will likely be misconstrued and used as a weapon against them. psychological or mental health evaluations are commonly used to deem parents dangerous or unfit. parents are manipulated, coerced, and forced to participate in myriads of mental health evaluations without just cause. as a parent, i was constantly forced to sign hipaa forms waiving my protected rights to privacy, including by pressure from the family court judge. foster care agencies and judges inappropriately use mental health evaluations as a tool not only to keep children in foster care but also to surveil and monitor families. dorothy roberts reports that “[o]nce under agency control, the mothers were subjected to increased scrutiny that included mandatory parenting classes, supervised visits with their children, and a battery of psychological evaluations.”59 indeed, it is common for agencies to require parents to be evaluated and counseled by state-paid therapists throughout the time their children are in foster care and for therapist’s reports to figure 58 diane redleaf. biden’s child welfare focus should be removing poverty from neglect, imprint (dec. 21, 2020, 4:00 am), https://imprintnews.org/child-welfare-2/biden-child-welfare-focus-removingpoverty-neglect/50041 [https://perma.cc/3pbt-h8al]. 59 roberts, shattered bonds, supra note 2, at 39. 658 colum. j. race & l. [vol. 11:639 prominently in the parents’ file. . . . the psychological evaluation also provides a surreptitious way of keeping custody of children without saying it.60 the role of these psychological evaluations in prolonging children’s stay in foster care play a crucial part in the expansion of the foster care industrial complex. the national council on disability has, for years, sounded the alarm about the inappropriate use of psychological evaluations in child protection cases. the council reports that psychologists are often asked to provide judgments about their patients’ parenting capacity and to testify about parental fitness even though they have only interviewed the parent for a couple of hours, and that even in the absence of formal evaluations, courts often rely on mental health professionals to make life-altering decisions that lead to the separation of children from their parents.61 a particularly pernicious form of state violence against black families is the use of mental health evaluations as a mechanism to deem parents unfit and to justify removals, foster care placement, and termination of parental rights. to “treat” child abuse, one needs to determine the cause or “etiology” of behavior (symptoms) classified as abusive or neglectful. yet, after decades of government and foundation-funded research, “searches for distinctive behavioral syndromes have proven elusive. those factors that have appeared reliably are directly related to ability to cope with poverty.” 62 nevertheless, the system, including judges, rely heavily on mental health evaluations as a tool not only to keep children in foster care, but also to prolong families’ contact with the system. it is also important to note that these mental health evaluations are used as grounds to terminate parental rights, best known as the civil death penalty. canada is far ahead of the united states in recognizing and acknowledging the harms of these psychological evaluations 60 id. at 40. 61 national council on disability, rocking the cradle: ensuring the rights of parents with disabilities and their children 129–30 (2012), https://www.ncd.gov/sites/default/files/documents/ ncd_parenting_508_0.pdf [https://perma.cc/96xs-y64a]. 62 gary b. melton, mandated reporting: a policy without reason, 29 child abuse & neglect 9, 11 (2004) (citations omitted). 2021] toward community control 659 and detrimental effects on marginalized groups. similar to african-americans in the united states, indigenous people in canada are also members of a marginalized group who are disproportionately experiencing family separation.63 in canada, the validity of these mental health evaluations is being challenged. in their response to family separation, the canadian psychological association points out that “[p]sychological assessment has been misused to further the colonial agenda of cultural genocide through culturally-situated definitions of health including mental health and pathology.” 64 despite the long-standing recognition that “[t]here are indeed reasons to believe that clinicians misinterpret problems of minority individuals in making diagnoses and in formulating overall assessments of mental health problems,” 65 the misuse of psychological evaluations in the united states child welfare systems remains unaddressed. while recent statements issued by the american psychological association (apa) 66 and the american psychiatric association67 acknowledge the history and detrimental impact of racism in their fields, neither has issued statements specifically acknowledging the family policing system’s inappropriate use of psychological evaluations in child protective cases. the harms resulting from improper use of psychological evaluations are compounded by their poor quality. any validity 63 sara miller llana, canada’s indigenous seek to break vicious cycle tearing families apart, christian sci. monitor (june 5, 2019), https://www.csmonitor.com/world/americas/2019/0605/canada-s-indigenousseek-to-break-vicious-cycle-tearing-families-apart [https://perma.cc/y2v47ktu]. see also an act respecting first nations, inuit and métis children, youth and families, s.c. 2019, c 24 (can.) (“parliament affirms the need . . . to eliminate the over-representation of indigenous children in child and family services systems . . . .”). 64 canadian psych. assoc. & psych. found. of can., psychology’s response to the truth and reconciliation commission of canada’s report 15 (2018), https://cpa.ca/docs/file/task_forces/trc%20task%20 force%20report_final.pdf [https://perma.cc/lf9u-jzbz]. 65 lonnie r. snowden, bias in mental health assessment and intervention: theory and evidence, 93 am. j. pub. health 239, 241 (2003). 66 sandy shullman & arthur evans, apa’s action plan for addressing inequality, am. psych. assoc. (june 2, 2020), https://www.apa.org/news/ apa/2020/action-addressing-inequality [https://perma.cc/762c-5wkz]. 67 apa’s apology to black, indigenous and people of color for its support of structural racism in psychiatry, am. psychiatric assoc. (jan. 18, 2021), https://www.psychiatry.org/newsroom/apa-apology-for-its-support-ofstructural-racism-in-psychiatry [https://perma.cc/wa5d-tr3c]. 660 colum. j. race & l. [vol. 11:639 that psychological assessments in child welfare cases might have is undermined by problems like case overload, inadequate capacity, and lapses in communication between evaluators, agencies, and courts. a 2017 investigation by propublica on the use of mental health evaluations in the new york city family court system reported that a 2012 “confidential review done at the behest of frustrated lawyers and delivered to the administrative judge of family court in new york city” found that the work of the primary provider of evaluations on behalf of acs “was inadequate in nearly every way.”68 the review found that none of the evaluations matched all of the criteria from the apa and other professional guidelines. “some met as few as five [out of twenty-five]. the psychologists used by montego [medical consulting, a for-profit contractor previously used by acs,] often didn’t actually observe parents interacting with children. they used outdated or inappropriate tools for psychological assessments . . . .”69 yet, even after this damning report, many family court judges, acs, and many foster care agencies continued to use the evaluator until acs terminated their contract in 2015. the results of these defective and faulty mental health evaluations were for years used to keep black and brown new york city children in foster care and as grounds to terminate parental rights. in 2015, children’s village tried to convince me to seek a psychological evaluation at montego consulting even after i paid the cost for independent mental health evaluations that produced positive reviews that were not considered. at the filing of the tpr, i was again pressured to have another mental health evaluation—again, i refused. my refusal was the best decision that i made and would play a major part in my son returning to my care in 2018. the foster care industrial complex thrives on the medical diagnosis and subsequent treatment of the parent. treatment of the “disease” of child abuse and neglect is a key focus of capta. to place children in foster care, the agency must show proof of a problem with the parent. as a result, poverty and given circumstances are treated as an illness and parents are subjected 68 joaquin sapien, dysfunction disorder, propublica (jan. 17, 2017), https://www.propublica.org/article/dysfunction-disorder-nyc-family-courtflawed-mental-health-reports [https://perma.cc/x76u-s972]. 69 id. 2021] toward community control 661 to cheap, low-quality, and faulty evaluations done by for-profit contractors. the system benefits from this arrangement, especially the mental health professionals—psychologists, psychiatrists, licensed social workers, and other mental health workers. however, these evaluations do not have any real value in determining a child’s and family’s needs. the main purpose of forensic psychological evaluation is to provide a diagnosis for clinical purposes. currently, in new york city, forensic psychological evaluations are used by acs mainly for character assassination to demonize and criminalize a parent and to provide justifications for removals and termination of parental rights. in many instances, these forensic psychological evaluations do not meet basic apa guidelines but have lasting detrimental effects such as long-term family separation and termination of parental rights. according to claire gilligan, psy.d., a licensed psychologist who practices in the state of vermont, “a useful evaluation should assess if a parent can meet the child’s basic needs.”70 in particular, dr. gilligan utilizes a multi-method approach to evaluating parenting capacity consistent with forensic training and adhering to the apa guidelines for psychological evaluations in child protection matters.71 dr. gilligan’s approach is modeled after the work of karen budd, ph.d.,72 which promotes the use of the “minimal parenting standard” in assessing a parent’s ability to meet their child’s basic physical, developmental, and emotional needs in the context or risk and protective factors across child, parenting/family, and social/environment domains. claire gilligan explains: unlike traditional clinical evaluations, parenting capacity evaluations employ a functioning 70 e-mail from dr. claire gilligan, psychologist, to authors (mar. 31, 2021, 8:15 am) (on file with authors). dr. claire gilligan is a certified psychologist licensed in vermont and new york who specialize in family matters including parenting capacity and parenting plans. see dr. claire e. gilligan, claire e. gilligan, psyd, https://www.clairegilliganpsyd.com/dr-clairegilligan (last visited june 3, 2021). 71 am. psych. assoc., guidelines for psychological evaluations in child protection matters, 68 am. psych. 20 (2013). 72 karen s. budd, assessing parenting competence in child protection cases: a clinical practice model, 4 clinical child & fam. psych. rev. 1 (2001). 662 colum. j. race & l. [vol. 11:639 approach to assessment that focuses on daily caregiving skills and deficits. the goal of parenting capacity evaluation is to assess the unique fit between a parent’s abilities and deficits and a child’s needs, and most importantly provide recommendations that promote growth in parents for consideration for reunification.73 iii. criminalizing poverty: the carceral roots of the child abuse prevention and treatment act of 1974 like all other carceral institutions, the family policing system centers pathology, criminalization, and punishment. the concept of carcerality captures the ways in which white supremacy shapes and organizes society “through policies and logic of control, surveillance, criminalization, and unfreedom. . . . the carceral state, and its punitive processes of criminalization and control, operate in highly discriminatory ways and have both produced and reinforced massive inequalities along lines of race, class, gender, sexuality, and other identity categories.” 74 ms. montauban’s experience with new york city’s family policing system bears witness to professor roberts’ observation that black mothers are situated “at the epicenter of a multi-institutional apparatus of surveillance, social control, and punitive regulation.”75 the heavy-handed, punitive, and antagonistic dynamics ms. montauban describes are baked into the dna of the family policing system. until the 1970s, “there were no official mechanisms to investigate allegations of child abuse” because 73 e-mail from dr. claire gilligan, supra note 70. 74 gabrielle french et al., what is the carceral state?, univ. of mich. carceral state project (may 2020), https://storymaps.arcgis.com/ stories/7ab5f5c3fbca46c38f0b2496bcaa5ab0 (explaining that “the reach of carcerality extends far beyond formal incarceration itself,” and captures the many ways in which society and culture is organized “through policies and logic of control, surveillance, criminalization, and un-freedom. . . . that revolve around the ‘promise and threat of criminalization’ and the ‘possibility/solution of incarceration.’ the carceral state, operating through these punitive orientations, functions as an obstacle and a substitute for ‘humane solutions to social problems’ such as poverty, racism, citizenship status, and other forms of inequality and discrimination.”) 75 dorothy roberts, digitizing the carceral state, 132 harv. l. rev. 1695, 1706 (2019) (book review) [hereinafter roberts, digitizing]. https://storymaps.arcgis.com/stories/7ab5f5c3fbca46c38f0b2496bcaa5ab0 https://storymaps.arcgis.com/stories/7ab5f5c3fbca46c38f0b2496bcaa5ab0 https://storymaps.arcgis.com/stories/7ab5f5c3fbca46c38f0b2496bcaa5ab0 2021] toward community control 663 lawmakers “did not perceive families as dangerous or harmful to children’s well-being.”76 enacted during a time of retrenchment from federal efforts to “redistribute wealth and ameliorate the effects of poverty,”77 symbolized by president lyndon johnson’s war on poverty, the child abuse prevention and treatment act of 1974 pathologized and criminalized poverty and created an investigative and prosecutorial response that diverted attention and resources from anti-poverty efforts. 78 while neither the federal government nor the states have a legally enforceable obligation to operate child protective services systems, 79 by linking receipt of federal dollars to federal policy requirements “congress has been able to persuade every state to conform its child welfare laws with federal law.” 80 examining capta’s history and provisions through the lens of carcerality allow us to more clearly see its central role in the criminalization of black families for reasons of poverty. a. historical background: a pretextual response—conflating poverty with abuse capta’s central organizing principle is that “the most widespread threats to the safety and well-being of children stem from the misbehaviors of their parents.”81 as experienced by ms. montauban and hundreds of thousands of other parents, the intense, pathological obsession of the family policing system with psychological assessments, behavior modification programming 76 martin guggenheim, what’s wrong with children’s rights 182 (2005). 77 id. at 184. 78 id. at 181–85 (observing that in the late nineteenth century “child protection was a small piece of a larger movement to rectify social ills for children,” but in the latter part of the twentieth century, the purpose “was dramatically narrowed to protecting children from harm inflicted upon them by their parents.”). 79 see jennifer reich, the child welfare system and state intervention in families: from historical patterns to future question, 2 socio. compass 888, 892–93 (2008) (explaining that the united states supreme court’s decisions in deshaney v. winnebago, 489 u.s 189 (1989), and town of castle rock, colorado v. gonzales, 45 u.s. 748 (2005), taken together, “clarify that citizens do not have a right to protection and that state agencies that fail to protect individuals are free from liability. in fact, the less states do to proactively protect individuals, the safer they are from claims of negligence. nonetheless, the child welfare system is predicated on a belief that children should be protected, even as the legal responsibility to do so is vague.”). 80 guggenheim, supra note 76, at 184. 81 pelton, supra note 8, at 128. 664 colum. j. race & l. [vol. 11:639 (“treatment and services”), and quasi-criminal prosecution is rooted in the origins of cps as a system of mandatory reporting by physicians of suspected physical assaults on children by their parents. ostensibly enacted as a reaction to concern over widespread physical and sexual violence against children by their parents, the family policing system’s almost singular focus on reporting, investigation, prosecution, and “casework” (monitoring for compliance) is indelibly linked to dr. c. henry kempe—a principal founder of the international society for the prevention of child abuse and neglect, the kempe center for the prevention and treatment of child abuse and neglect, and child abuse and neglect: the international journal. in 1962, kempe and several colleagues published an article entitled the battered child syndrome, in which they introduced the empirically unsupported idea of parental violence against children as a diagnosable and treatable medical condition or mental illness. kempe described “battered child syndrome” (bcs) as “a clinical condition in young children who have received serious physical abuse, generally from a parent or foster parent.” 82 and, reminiscent of eugenics ideology, 83 kempe further insinuated that bcs was also a serious mental illness almost exclusively afflicting marginalized groups. he speculated that: psychiatric factors are probably of prime importance in the pathogenesis of the disorder . . . . parents who inflict abuse on their children do not necessarily have psychopathic or sociopathic personalities or come from borderline socioeconomic groups, although most published cases have been in these categories. in most cases[,] some defect of character structure is probably present.84 82 c. henry kempe et al., the battered-child syndrome, 181 j. am. med. ass’n. 17, 17 (1962). 83 see roberts, digitizing, supra note 75, at 1712–16 (arguing that “[p]rediction is a defining feature of the carceral state” and linking the modern use of predictive analytics to reinforce the state’s control over marginalized populations to the ways in which american eugenicists catalogued socioeconomic classes and races according to predictions of their social value). 84 kempe, supra note 82, at 24. see also barbara j. nelson, making an issue of child abuse: political agenda setting for social problems 13 (1984). 2021] toward community control 665 kempe pointed to reports by social workers that such parents were “of low intelligence,” and that “[a]lcholism, sexual promiscuity, unstable marriages, and minor criminal activities are reportedly common amongst them,” 85 and that parents afflicted by bcs “are immature, impulsive, self-centered, hypersensitive, and quick to react with poorly controlled aggression.” 86 news reports fueled public outrage about this seemingly ubiquitous horror. claiming that “at least two children a day” were “savagely assaulted by their own parents,” one article listed a litany of parental brutality, including beating, burning with matches, cigarettes, or electric irons, holding the child’s hands, arms or feet over an open flame, and deliberate scalding.87 others, the reporter wrote, “are strangled, thrown, dropped, shot, stabbed, shaken, drowned, suffocated, sexually violated, held under running water, tied upright for long periods of time, stepped on, bitten, given electric shocks, forced to swallow pepper or buried alive.”88 during the four days of congressional hearings on capta in 1973, although some witnesses focused on the need to address alleged child maltreatment by attending to stressors associated with living in poverty, testimony was overwhelmingly about physical and sexual abuse of children by their parents.89 in making an issue of child abuse: political agenda setting for social problems, political scientist barbara j. nelson explains that in the wake of the outcry over kempe’s “discovery” of battered child syndrome, lawmakers and others made addressing brutal abuse of children by their pathologically dangerous parents an urgent national priority. even prior to the enactment of capta—due in large part to kempe’s influence—by 1965, all fifty states had adopted some form of mandated reporting of suspected child abuse for physicians and other health professionals. 90 with the enactment of capta, congress formalized and expanded mandatory reporting of physical abuse into a nationwide system of reporting, investigation, and 85 kempe, supra note 82, at 18. 86 id. 87 nelson, supra note 84, at 60. 88 id. 89 id. at 104–07. 90 see id. at 13–14. 666 colum. j. race & l. [vol. 11:639 prosecution of child maltreatment applicable to both physical abuse and poverty framed as neglect.91 capta’s initial scope was both broad and vague, melding intentional acts and acts of omission into a singular phenomenon—child abuse and neglect. in the original version of capta, “child abuse and neglect” was defined as “the physical or mental injury, sexual abuse, negligent treatment, or maltreatment of any child under the age of eighteen by a person who is responsible for the child’s welfare under circumstances which indicate the child’s health or welfare is harmed or threatened thereby.” 92 just as broad and arguably more nebulous, capta currently defines “child abuse and neglect” as “any recent act or set of acts or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation . . . or an act or failure to act, which presents an imminent risk of serious harm.”93 each state can fashion its own definition in conformity with the federal definition.94 the federal government and states generally define “neglect” in relation to parental omission to provide for a child’s basic needs, while “abuse” covers acts of commission, such as physical assault beyond legally permitted corporal punishment, sexual abuse, or emotional abuse.95 by defining “child abuse and neglect” as a singular phenomenon, lawmakers knowingly created a false equivalence between intentional physical harm to children by their parents and conditions of poverty, effectively transforming child poverty from a social, economic, and racial justice issue into a problem of 91 see id. 92 child abuse prevention and treatment act, p.l. 93-247, § 3 (1974). 93 child abuse prevention and treatment act, p.l. 93-247 (1974), as amended through p.l. 115-424, § 3(2) (2019). 94 see child.’s bureau, admin. for child. & fams., u.s. dept. health & hum. servs., definitions of child abuse and neglect: fact sheet (2019), https://www.childwelfare.gov/pubpdfs/define.pdf [https://perma.cc/dkl3-g4yt] (compiling definitions from all fifty states, the district of columbia, american samoa, guam, the northern mariana islands, puerto rico, and the u.s. virgin islands). 95 id. at 1. see also n.y. fam. ct. act § 1012 (2021) (defining a “neglected child” as “a child less than eighteen years of age” whose “condition has been impaired . . . as a result of the failure of his or her parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, shelter, or education . . . or medical . . . care” or “in providing the child with proper supervision”). 2021] toward community control 667 individual parental pathology and deviant behavior.96 conflating abuse and poverty-framed-as-neglect allowed policymakers to avoid addressing deeply entrenched structural, economic, and racial inequities affecting children’s wellbeing. the family policing system “is inextricably tied to our society’s refusal to see a collective responsibility for children’s welfare. it is a society willing to pay billions of dollars a year on maintaining poor children outside their homes but begrudges spending a fraction of that on supporting families.”97 under the cps regime, “the most serious problems facing children in the united states—all related to poverty”—were pushed aside as “outside of the proper boundaries” of child welfare.98 in the years after capta’s enactment, more federal funds became available to states for family separation, and by 1979, “approximately 75% of child welfare funds were devoted to foster care rather than on services to support or preserve families.”99 with the creation of the cps apparatus of reporting, investigation, and prosecution organized around the principle of parental dangerousness, congress thus criminalized poverty and set in motion a nationwide family policing system focused on proving parental deviance and wrongdoing rather than on addressing children’s needs. b. how capta shapes state and local family policing practices and families’ lived experiences capta governs state and local cps policy and practice,100 and thus directly shapes black families’ experiences of cps. founded on the presumption of parental dangerousness and guided by carceral principles, capta’s requirements and protocols significantly influence how state and local cps agencies and street-level cps agents treat families. the federal administration for children and families defines “[p]rotective 96 see roberts, shattered bonds, supra note 2, at 14–15. see also guggenheim, supra note 76, at 182–84. 97 see roberts, shattered bonds, supra note 2, at 89. 98 guggenheim, supra note 76, at 185. 99 reich, supra note 79, at 896. 100 see child.’s bureau, admin. for child. & fams., u.s. dept. health & hum. servs., major federal legislation concerned with child protection, child welfare, and adoption.: fact sheet (2019) [hereinafter child.’s bureau, federal legislation], https://www.childwelfare.gov/pubpdfs/majorfedlegis.pdf [https://perma.cc/3dtn-v7bk]. https://www.childwelfare.gov/pubpdfs/majorfedlegis.pdf 668 colum. j. race & l. [vol. 11:639 services for children” as “services or activities designed to prevent or remedy abuse, neglect, or exploitation of children,” which may include “immediate investigation and intervention; emergency medical services; emergency shelter; developing case plans; initiation of legal action . . . counseling for the child and the family; assessment/evaluation of family circumstances; arranging alternative living arrangements; preparing for foster placement, if needed; and case management and referral to service providers.”101 under capta, states can apply for discretionary grants to support their “prevention and treatment” activities102 as well as their reporting, assessment, investigation, and prosecution activities.103 funds are available for, among other things, the intake, assessment, screening, and investigation of child abuse or neglect reports; cross-agency protocols to enhance investigations; delivery of “services and treatment” to children and families; case management and ongoing case monitoring; the use of risk and safety assessment tools and protocols; and promoting collaboration between cps and the juvenile justice system, the education system, public health agencies, private community-based programs, and domestic violence services.104 as illustrated by ms. montauban’s experience, these crosssystems collaborations mean that seeking help from a community domestic violence service, for example, can very quickly go very wrong, leading to entrapment in a system focused on “assessment,” “treatment,” and “casework” rather than on helping families in need.105 capta’s discretionary grant requirements defines the basic cps infrastructure. states must submit a state plan 101 ssbg legislation uniform definition of services, admin. for child. & fams., u.s. dep’t of health & hum. servs., (jan. 1, 2009), https://www.acf.hhs.gov/ocs/law-regulation/ssbg-legislation-uniform-definitionservices [https://perma.cc/4nlw-9uxv]. 102 42 u.s.c. § 5106a. 103 42 u.s.c. § 5106a(c) (creating grants to states for programs relating to investigation and prosecution of child abuse and neglect cases). see also kristina rosinsky et al., child welfare financing sfy 2018: a survey of federal, state, and local expenditures 48 (2021), https://www.childtrends.org/publications/child-welfare-financing-surveysfy2018 [https://perma.cc/f8q9-eh52] 104 42 u.s.c. §§ 5106a(a)(1)–(14). 105 see id. https://www.childtrends.org/publications/child-welfare-financing-survey-sfy2018 https://www.childtrends.org/publications/child-welfare-financing-survey-sfy2018 2021] toward community control 669 describing how funds received under the act will be used,106 and must include a certification by the state’s governor that, among other things, “the state has in effect and is enforcing a state law, or has in effect and is operating a statewide program” relating to child abuse and neglect which meets specified requirements.107 the first and most consequential requirement is that the state have “provisions or procedures” permitting “an individual to report known and suspected instances of child abuse and neglect” and “a state law for mandatory reporting by individuals required to report such instances.”108 this requirement of mandated and permissive reporting is the “911” of the family policing system. although the particulars vary among states, typically a report is mandated or permitted when the reporter “suspects or has reason to believe that a child has been abused or neglected.”109 family defender michelle burrell notes that “it is shocking how easy it is for child protective officials to invade someone’s life. it only takes a simple phone call, which can even be placed by an anonymous citizen.” 110 comparing how cps agents “enter the lives of parents to investigate allegations of abuse and neglect” to the discredited “stop-and-frisk” tactics of the criminal policing system, burrell observes that the “low and subjective standards of proof” for government intervention in both “have tremendous impacts on families’ civil liberties and the fundamental rights of parents to raise their children. . . . both practices occur outside the courtroom, out in the community, with little judicial oversight, creating a high likelihood of misuse and trauma.”111 this highly porous reporting system creates the very wide front door through which cps feeds black families into the foster industry. other features of state cps systems mandated by capta include: immunity from prosecution to individuals who report suspected child abuse and neglect or “who otherwise provide information or assistance, including medical evaluations or consultations, in connection with a report, investigation, or legal intervention pursuant to a good faith report of child abuse or 106 42 u.s.c. § 5106a(b)(1)(a). 107 42 u.s.c. § 5106a(b)(2)(b). 108 42 u.s.c. § 5106a(b)(2)(b)(i). 109 child.’s bureau, federal legislation, supra note 100, at 3. 110 burrell, supra note 13, at 130. 111 id. at 132–33. 670 colum. j. race & l. [vol. 11:639 neglect”;112 “procedures for the immediate screening, risk and safety assessment, and prompt investigation” of reports; 113 “triage procedures, including the use of differential response, for the appropriate referral of a child not at risk of imminent harm to a community organization or voluntary preventive service”;114 appointment of a guardian ad litem to represent the interests of a child who is the subject of a judicial child abuse or neglect proceeding; 115 and “the cooperation of state law enforcement officials, court of competent jurisdiction, and appropriate state agencies providing human services in the investigation, assessment, prosecution, and treatment of child abuse and neglect.”116 as a result of capta’s requirements, enormous amounts of human and fiscal resources are spent on activities that “usually result in significant disruption of family life but little if any benefit,” 117 and often deter parents from seeking help because of legitimate fear that, as mandated reporters, helping professionals might report them to cps.118 once entrapped in the cps system, as a condition of maintaining or regaining custody of their children, parents are subjected to oppressive oversight by cps caseworkers under the rubric of child abuse services and treatment—so-called “preventive services” and foster care or reunification programming. mandated parental participation in these programs, which consist primarily of behavior modification activities focused on parental functioning,119 is tantamount to “family probation” in which caseworkers monitor and control parents’ conduct and activities, including their interactions with 112 42 u.s.c. § 5106a(b)(2)(b)(vii). 113 42 u.s.c. § 5106a(b)(2)(b)(iv). 114 42 u.s.c. § 5106a(b)(2)(b)(v). 115 42 u.s.c. § 5106a(b)(2)(b)(xiii). 116 42 u.s.c. § 5106a(b)(2)(b)(xi). see also child.’s bureau, admin. for child. & fams., u.s. dept. health & hum. servs., cross reporting among responders to child abuse and neglect (2016), https://www.childwelfare.gov/topics/systemwide/lawspolicies/statutes/xreporting/ [https://perma.cc/8jdz-g379]. 117 melton, supra note 62, at 14 (2004). 118 see, e.g., fong, supra note 21, at 626; merritt, lived experiences, supra note 21. 119 see rosinsky, supra note 103, at 50–51 (explaining the different types of “preventive” trainings parents receive). 2021] toward community control 671 their children, through the threat of prolonged, temporary, or permanent parent-child separation.120 in 2018, 13% of federal and 15% of state/local child welfare funds were spent on “preventive services,” with the largest share of that funding (85% at the federal level and 77% at the state/local level) going to “parent skill-based” programs and caseworker visits (i.e., information and referral services and family team meetings); only 6% of federal and 7% of state/local preventive services funding went to financial supports for families. 121 with regard to these “services and treatments,” parents face “an impossible dilemma,” either “engage in the services offered, accept responsibility for the allegations to be reunified with their children and receive positive settlements, or they can contest the allegations and face the possibility of being seen as difficult, lacking in insight, and potentially dangerous to their children.”122 requiring professionals like teachers, domestic violence providers, and health care providers to report families to cps “has undermined a greater sense of community responsibility” by encouraging people to rely on an impersonal third party “rather than take an active, integrated role in the well-being of other community members.” 123 as ms. montauban explains below, family contacts with seemingly helpful community resources all too often lead to unwarranted and damaging government intrusion into the parent-child relationship, unnecessary and traumatic taking of children from their families, contrived reasons to prolong children’s status as wards of the state, and in 120 see merritt, how do families experience and interact with cps?, supra note 20, at 209 (explaining that once cps opens a case on a family, a case plan with a “menu of services is then put into place with regular system oversight to assess progress. . . . caseworkers visit families as often as needed according to the case plan (i.e., weekly, monthly). after a designated period of time, families are assessed to determine if there is an ongoing level of risk for harm that warrants continued, or sometimes elevated, involvement in cps services”). 121 rosinsky, supra note 103, at 50–51. 122 burrell, supra note 13, at 140. 123 natalie k. worley & gary b. melton, mandated reporting laws and child maltreatment: the evolution of a flawed policy response, in c. henry kempe: a 50 year legacy to the field of child abuse and neglect 103, 109 (richard d. krugman & jill e. korbin eds., 2013). 672 colum. j. race & l. [vol. 11:639 far too many cases, the civil death penalty—legal destruction of their families (“termination of parental rights”).124 iv. trauma pimping: the foster care industry embedded in black communities children and their parents do not benefit from family separation, but the foster care industry benefits greatly. molly mcgrath tierney, who spent ten years running the baltimore city department of social services, describes the foster care industrial complex as a “self-protecting ecosystem” fueled by the “taking of other people’s children.” 125 as a self-protecting ecosystem, the foster industry sustains itself through the forceful and aggressive act of separating children—disproportionately black children—from their families and placing them into foster care as wards of the state. in new york city today, child protection cases are concentrated in sections with large concentration of poverty: harlem in manhattan, the south bronx, the jamaica area in queens, and the east new york area in brooklyn. all of the zip code areas mentioned have a fully operational acs office with a large staff ready to be dispatched to conduct investigations and to monitor families. cps serves as the gateway for black families into the foster industry through what professor roberts calls the “racial geography” of child welfare.126 an acs supervisor at a rally in harlem explained, middle-class parents have doormen, so acs has more difficulty knocking on their doors, but poor families live in apartment buildings where the entrances are unlocked.127 124 see, e.g., in re q.l.r., 54 p.3d 56, 58 (nev. 2002) (“the bond between parent and child is a fundamental societal relationship. termination of the parent-child relationship implicates fundamental liberty interests that are protected by the united states constitution . . . . as this court has previously explained, termination of a parent’s rights to his child is tantamount to imposition of a civil death penalty.” (internal quotations omitted)).  125 tedx talks, supra note 14, at 4:45–5:15. 126 roberts, racial geography, supra note 48. 127 supervisor, admin. for child.’s servs., black children matter march in harlem organized by plan (parent legislative action network) (july 18, 2020). see also black families matter: parents protest acs and family separation, rise mag. (july 23, 2020), https://www.risemagazine.org/2020/07/parents-rally/ [https://perma.cc/wyq9nf8l]. 2021] toward community control 673 this easy access to intervene into the lives of black families is facilitated by the interconnection between cps and much needed community-based resources. for example, the well-regarded head start is a program funded by the united states department of health and human services that provides early childhood education and services to low-income families. the head start program is an excellent pre-school educational program for low-income students. up until july 2019, acs administered the head start program in new york city.128 go to any impoverished community in new york city, within a mile exists a foster care agency. these agencies are hotspots in some communities, and they provide all types of services—from preventive services, foster care services, and residential services, to in-school and after-school programs. as more communitybased organizations struggle and go out of business, they are replaced with programs offered and funded by the local child welfare agencies. they have names like children’s village, children’s aid society, new york foundling, graham windham, mercyfirst, and cardinal mccloskey. unbeknownst to families, these foster care agencies are an extension of cps. rarely do parents foresee the danger, but foster care agencies’ larger-thanlife presence in marginalized communities is government surveillance in poor communities. the employees of these agencies are all mandated reporters. our communities are always under surveillance, whether from the new york police department or from acs, better known as the family police. foster care agencies also operate after-school programs in many new york city housing authority (nycha) public housing developments. these social service programs only exist in low-income communities and in low-income housing developments where low-income families are the targeted clientele. black children in new york city are always under the watchful eyes of mandated reporters. for example, children’s village receives funding to operate multiple programs in new york city schools and in nycha housing projects. at the drew hamilton housing project in harlem, children’s village runs after-school and summer camp programs at the drew hamilton 128 early learn transition from acs to doe: family child care, n.y.c. dep’t of educ., https://infohub.nyced.org/docs/default-source/defaultdocument-library/transition-one-pager-for-fcc-english.pdf [https://perma.cc/m4fu-qklb] (last visited june 4, 2021). 674 colum. j. race & l. [vol. 11:639 community center. 129 the children’s village website boasts, “[t]he center is operated in conjunction with the nyc department of youth and community development (dycd) and the [nycha].” additionally, acs plays a major role in the operation of the family enrichment centers in the five boroughs of new york city. most of these centers were in full operation during the closing of schools due to the covid-19 pandemic and were a main source of childcare resources to essential workers. essential workers who work low-pay jobs in hospitals and other industries presumably rely on these services for childcare. this is a classic example of the foster care industrial complex—massive, influential, and intertwined in every aspect of the low-income black experience in new york city. state and local government entities, along with private for-profit and not-for-profit organizations and service providers, comprise the foster care industrial complex, which operates as a modern-day slave system for black families.130 the system includes “public and private child protection and child welfare workers, public and private social services workers, state and local judges, prosecutors, and law enforcement personnel,”131 all working to maintain an infrastructure that operates primarily to separate children from their families. in his brilliant expose, the poverty industry, daniel hatcher 132 succinctly explains how state governments and their private industry partners steal billions in federal aid and other funds from poor families and children in foster care: even before a child is taken into foster care, revenue goals and funding streams incentivize child welfare agency decisions about whether to provide assistance to keep a struggling family intact, or whether the child should be removed. then, once a child becomes a ward of the state, numerous additional and overlapping revenue 129 drew hamilton community center, children’s village, http://childrensvillage.org/our-programs/community-programs/drewhamilton/ [https://perma.cc/54gs-hr6p] (last visited june 3, 2021). 130 see peggy c. davis & richard g. dudley, jr., the black family in modern day slavery, 4 harv. blackletter j. 9, 10 (1987). 131 cong. rsch. serv., r43458, child welfare: an overview of federal programs and their current funding 1 (2018). 132 daniel hatcher, the poverty industry: the exploitation of america’s most vulnerable children 66 (2016). 2021] toward community control 675 strategies come to life. the child is engulfed by revenue maximization efforts that all too often are not aimed at determining how to best meet the child’s needs, but rather at how to best use the child to meet the fiscal needs of the agency and the state. these revenue strategies play a major role in understanding why children are held hostage in foster care for years while their parents desperately attempt to bring them home. on many levels, i (ms. montauban) can relate to the feelings of being trapped in a system that i did not want to be part of and sensing that the professionals around me were working to keep my son in foster care for institutional incentives and self-interest. without a doubt, federal funding is the root of the problem as cities and states look for ways to maximize their profit. separating children from their families and making them wards of the state is far more profitable for governments and their private industry partners than reunification with the children’s families. the commodification of black children generates a steady stream of open-ended funding from federal taxpayers’ dollars to state and local governments and agencies that are rewarded for removing children from their families, prolonging their stay in state custody, and terminating parental rights. in just under fifty years since the enactment of capta in 1974 with an authorization of $86 million to be spent over three years,133 the child abuse and neglect industry has grown into a multi-billion-dollar conglomerate. when shattered bonds was published in 2002, federal and state governments were spending more than $10 billion a year on the child welfare system.134 in 2018, that amount was about $33 billion.135 about 56% of the total came from state and local funds; the rest was supplied by federal funding authorized in title iv-e and title iv-b of the social security act and capta (26%), and from other federal programs not solely child welfarefocused (the social services block grant and temporary assistance for needy families) (18%).136 in fiscal year 2021, the 133 nelson, supra note 84, at 2. 134 roberts, shattered bonds, supra note 2, at 269. 135 emilie stoltzfus, cong. rsch. serv., if10590, child welfare: purposes, federal programs, and funding 1 (2021). 136 id. 676 colum. j. race & l. [vol. 11:639 federal government’s contribution for federal programs wholly dedicated to child welfare totals about $12.5 billion.137 the vast majority of these federal funds are for foster care ($5.796 billion) and adoption ($4.073 billion), while the remainder is for child and family services ($1.252 billion); services to older and former foster youth programs ($586 million); and competitive grants, research, technical assistance, and incentives ($253 million).138 v. a reparations perspective on black child and family well-being capta created a nationwide family policing system which, in the words of professor roberts “devastates hundreds of thousands of families and . . . . targets black mothers by focusing on outcomes produced by unjust structural forces, in ways that are supported and amplified by political decision-making; harmful child welfare ideology; and intersecting race, gender, and class bias on the part of government agents.” 139 having exposed the carceral roots of cps and its destructive impacts on black families, we offer the following recommendations in response to this symposium’s call for ideas “in support of abolishing the child welfare system and creating a radically new approach to child well-being.”140 a. abolish cps a primary goal of the defund and abolish movement should be to repeal capta and end the system of reporting, investigation, and prosecution of parents accused of child maltreatment. in their call to “stop confusing poverty with neglect,” top federal children’s bureau officials recently urged child welfare professionals to “rally around families that are vulnerable and struggling with poverty, rather than judging them, labeling that vulnerability as neglect, and pathologizing them.”141 they argued that “[i]f we truly care about children and 137 id. 138 id. 139 roberts, black mothers, supra note 11. 140 call for papers: volume 11 symposium issue, strengthened bonds: abolishing the child welfare system and re-envisioning child well-being, colum. j. race & l. (may 7, 2020), https://journals.library.columbia.edu/ index.php/cjrl/announcement/view/317 [https://perma.cc/v27w-eubl]. 141 jerry milner and david kelly, it’s time to stop confusing poverty with neglect, imprint (jan. 17, 2020), https://imprintnews.org/child-welfare2/time-for-child-welfare-system-to-stop-confusing-poverty-with-neglect/40222 [https://perma.cc/ar7w-v4t9]. 2021] toward community control 677 families, it’s time to stop confusing poverty with neglect and devote ourselves to doing something about it.”142 doing something about it means abolishing the cps system. professor roberts says, “[a]bolition means completely dismantling this system of family policing—not reforming it or replacing the current system with a new and improved system. it means ending its philosophy, design, practices and policies and building a different way of caring for families.”143 acting in concert, and under color of law, government and private entities have used their power, influence, and considerable resources to perpetuate “unnecessarily sweeping, disrespectful, and debilitating” government intervention that is “often destructive to viable family systems.”144 abolition means advocacy by government officials and philanthropic organizations who say, “black lives matter,” for repeal of capta’s destructive system of reporting, investigation, and prosecution. the myth of parental dangerousness as applied to black families is a relic of the “dogma that supported four centuries of chattel slavery” which “has proven to be a continuing presence that affects major facets of life for many african-americans.”145 abolition means government officials and private for-profit and not-for-profit organizations that have participated and continue to participate in the monetization of black children must renounce the myth of black parental dangerousness and the criminalization of black families and make amends for the harms they have caused by their substantial investments in perpetuating the family policing system. abolition means a true reckoning with the shameful legacy of slavery manifested in commodifying black bodies through the forcible taking and threat of taking black children. 142 id. 143 abolition is the only answer, supra note 7. 144 davis & dudley, supra note 130, at 10 (explaining that the paper “addresses the darker side of social responses to troubled and impoverished families: the risks that governmental interventions will be unnecessarily sweeping, disrespectful, and debilitating rather than supportive”). 145 jessica dixon-weaver, the african-american child welfare act: a legal redress for african-american disproportionality in child protection cases, 10 berkeley j. afr. am. l. & pol’y 109, 111 (2008). 678 colum. j. race & l. [vol. 11:639 b. divest from family policing; invest in communities speaking from the perspective of a parent with lived experience in the system, i (ms. montauban) maintain that cps comes into the lives of children after alleged abuse or neglect has occurred, so it has never been in a position to prevent abuse or to protect children. the best way to protect children is to have resources readily available to families in the community. children do not exist independent from their families; they are just as impacted by social inequalities as their parents. the resources needed to support families are already available and so it is time to redirect those federal, state, local, and private funds to developing and maintaining creative and innovative ways to help people who need it. families should not have to be subjected to surveillance and policing because they sought help. rather, we need to invest in community-based organizations and resources to eliminate housing insecurity and food insecurity, and to provide whatever is necessary to help children and families thrive—whether it be clothing, educational support, domestic violence support, or child care and workforce development. many of these community-based organizations are hard for struggling families to find. we need to raise the minimum wage to at least twenty dollars an hour and provide people with the opportunity to train for twenty-first century jobs with good benefits. we need to invest in providing rental assistance and home-buying grants for working-class families. this is the way to help families and to protect children. the result of seeking help should not be investigation and prosecution. c. reparations: compensation for generational trauma reparations for the historical harms inflicted on black families by the family policing system should be at the forefront of the abolitionist agenda. those who say they are concerned with the well-being of black children and black families should renounce the family policing system as a part of the carceral regime and “child protection” as an incarnation of the racist ideology of black parental dangerousness. with regard to black families, as malcolm x famously charged, the family policing system is “[n]othing but legal, modern slavery—however kindly intentioned.” 146 child welfare abolitionist latagia copeland 146 alex haley & malcolm x, the autobiography of malcolm x 21 (1965). 2021] toward community control 679 tyronce says that the family policing system is “a system that is also rife with white supremacy and structural/institutional racism,” and: [r]eparations are a way for governments to right past and present wrongs to an aggrieved group and as such the american child welfare system must be included both in the debate and in any monetary decisions and/or outcomes—it has been an oppressive system for that long and has caused that much harm. 147 monetary reparations are appropriate for the cumulative impact of the family policing system on black families over multiple generations. an example of reparations for governmentsponsored wrongful child taking is canada’s indian residential schools settlement agreement (irssa), announced in 2006.148 by the end of 2019, a total of $1.6 billion had been paid to victims through a common experience payment under irssa and an additional $3.233 billion had been paid through an independent assessment process to compensate for harms inflicted on generations of indigenous children whom the government and churches ripped from their families and placed in residential, government-funded, church-administered “schools.” 149 emphasizing the deep wounds government and churches inflicted on their child victims, the compensation committee recounts that indigenous children “were separated from siblings, stripped of their belongings and given unfamiliar clothes and haircuts. often children were given new names and a number. living in an unfamiliar environment, they were forced to speak 147 latagia copeland-tyronce, child welfare is the one white supremacist institution that is left out of the reparations conversation and it shouldn’t be!, medium: tagi’s world (nov. 4, 2019), https://medium.com/latagia-copeland-tyronces-tagi-s-world/child-welfare-is-theone-white-supremacist-institution-that-is-left-out-of-the-reparations7bc66761d75e [https://perma.cc/n8en-vfz5]. 148 all documents relating to the indian residential schools settlement agreement can be found here: settlement agreement, residential schs. settlement, http://www.residentialschoolsettlement.ca/settlement.html [https://perma.cc/mb76-79tq] (last visited june 9, 2021). 149 indep. assessment process oversight comm., independent assessment process final report, 8, 22 (2021), http://www.iappei.ca/media/information/publication/pdf/finalreport/iap-fr-2021-03-11eng.pdf [https://perma.cc/de52-rqv4]. 680 colum. j. race & l. [vol. 11:639 in a new language and to adopt a new religion.”150 in operation from 1883 until the final federal residential school closed in 1997, canada’s indian residential school system “was profoundly negative and had a lasting impact on the children, on their families, and on their culture.”151 irssa is the culmination not only of litigation, but also of the collective and sustained efforts by survivor groups, other interested organizations, and individuals calling attention to the “legal, moral, and spiritual wrongs” inflicted on generations of indigenous children. 152 irssa is seen by some as a continuation of measures “on a protracted and ongoing path toward recognizing and healing the past.”153 similar efforts should be made toward calling attention to the need for redress for the damages inflicted by the american cps system on generations of black children and their families. vi. conclusion former new york city family court judge and constitutional scholar peggy cooper davis, writing with dr. richard g. dudley jr., a professor of psychiatry and law, states that “[t]here is a line beyond which government cannot go without violating liberty interests that distinguish between the slave and the citizen.”154 she reminds us that the fourteenth amendment to the united states constitution was “forged in the process of abolishing slavery.”155 indeed, some drafters explicitly acknowledged the destruction of black families as an “incident” of slavery.156 it is time for america to reckon with “the massive crime of slavery, and all that it has wrought.”157 dismantling the family policing system must be at the forefront of that reckoning. black children matter. black parents matter. black families matter. 150 id. at 10. 151 id. at 7. 152 id. 153 id. 154 davis & dudley, supra note 130, at 14. 155 id. 156 id. at 15 (noting senator harlan’s statement that another “incident [of slavery] is the abolition practically of the parental relation, robbing the offspring of the care and attention of his parents, severing a relation which is universally cited as the emblem of the relation sustained by the creator to the human family”). 157 roberts, shattered bonds, supra note 2, at 271. columbia journal of race and law forum vol. 11 july 2021 no. 3 comment “it’s the only system we’ve got”: exploring emergency response decision-making in child welfare victoria a. copeland* front-line public “child welfare” caseworkers, also known as emergency response or investigative caseworkers, play a significant role in the “child welfare” system. placed in an intermediary role within the system, investigative caseworkers are tasked with making critical decisions while attempting to advocate for families and uphold the system’s policies. to understand the caseworker decision-making processes more in-depth, a qualitative study was conducted with eighteen investigative caseworkers in four different counties. the guiding research question of the current study was: “what impacts the decisionmaking processes in which child protective service workers investigate and substantiate referred cases of child maltreatment?” findings revealed several nuances and extensive complexities in how workers navigated often contradictory roles within the system. important emerging themes include caseworkers’ use of surveillance during investigation and multi-institution partnership in decision-making processes. this comment discusses the ways in which caseworkers react to and navigate ambiguity and parental resistance during investigations, lending an often-overlooked exploration into various nuances within the decision-making apparatus. understanding nuances in the complex web of decision-making * m.s.w., ph.d. candidate, university of california los angeles, luskin school of public affairs. the author would like to thank dorothy roberts and stop lapd spying coalition for their research and organizing work around both the “child welfare” system and surveillance. 44 colum. j. race & l. f. [vol. 11:43 and information-gathering may lead to novel ways of thinking about how the “child welfare” system addresses child protection. 2021] only system we’ve got 45 i. introduction ............................................................................... 46 ii. methods .................................................................................... 49 a. methodology ................................................................... 49 b. data collection and analysis ....................................... 49 iii. caseworkers use of surveillance in decision-making processes ............................................................................... 50 a. departmental surveillance of uncooperative parents ........................................................................... 50 b. utilizing preventative surveillance in ambiguous cases ............................................................................... 52 1. tensions in utilizing surveillance for prevention ................................................................ 54 iv. multi-institution partnerships in decision-making ............ 56 a. the courts, warrants, and “voluntary” services ....... 58 1. voluntary services .................................................. 60 b. the criminal (in)justice system ................................. 61 1. types of “law enforcement” partnerships ........... 62 2. criminal justice data ............................................. 65 c. bypassing parents through hospitals and schools..................................................................... 67 1. evading consent through schools ........................ 69 v. conclusion ................................................................................ 70 vi. limitations .............................................................................. 74 46 colum. j. race & l. f. [vol. 11:43 i. introduction the public “child welfare” system in the united states is comprised of a network of organizations and institutions that have collaboratively and historically exercised power over numerous families and communities in the name of “child safety and protection.”1 the “child welfare” system in the united states primarily functions through state and county departments such as the department of child & family services (dcfs) in los angeles. these county and state agencies are responsible for assessing, investigating, and substantiating reported cases of child abuse and neglect. to fulfill this responsibility, “front-line” emergency response or investigative caseworkers (csw) within the department are tasked with investigating suspected cases of maltreatment that have been filtered through the reporting hotline, collecting and utilizing several forms of data and “evidence” to inform critical decisions such as removing children from their homes. these frontline departmental caseworkers are often placed in intermediary roles, functioning as both advocates for family and enforcers of department policy. dorothy roberts describes this intermediary role as the “caseworkers as investigators and helpers” paradox, which explains the ways in which some caseworkers use coercion and threats during their intrusive investigations, while simultaneously being responsible for providing supportive services to families.2 caseworkers are not only expected to navigate this paradoxical role as helper and investigator; they must also navigate multi-system partnerships between departments and agencies within the larger “child welfare” system that have historically ignored family autonomy. these systems include punitive institutions like the courts and police departments. in recent years, departments like dcfs have increased their uses of multi-institution partnerships and collaborations, relying more on various institutions within the broader “child 1 quotes are utilized when mentioning the “child welfare” system as it has recently been termed the “family policing” system by families impacted by the system. see ava cilia, the family regulation system: why those committed to racial justice must interrogate it, harv. c.r.-c.l. l. rev. (feb. 17, 2021), https://harvardcrcl.org/the-family-regulation-system-why-those-committed-toracial-justice-must-interrogate-it/ [https://perma.cc/9xg7-smsy]. 2 see dorothy e. roberts, child welfare’s paradox, 49 wm. & mary l. rev. 881, 886–88 (2007) [hereinafter roberts, paradox]. 2021] only system we’ve got 47 welfare” system. this includes contractual relationships and information-sharing partnerships with the education system, the medical and health industry, and the criminal injustice system. roberts refers to this as a “multi-institutional apparatus of surveillance, social control, and punitive regulation.”3 the increase and strengthening of these partnerships can be observed in processes that are now required and embedded within the “child welfare” system including: forensic interviews with specialized healthcare providers and clinics, shared reporting infrastructures with the police, interagency databases, and mandated reporting laws. multi-system partnerships and collaborations shift various policies and regulations, consequently impacting the ways that caseworkers make lifealtering decisions when investigating cases of child maltreatment. these multi-institution partnerships often negatively impact families, making them more susceptible to monitoring and surveillance by the state. as defined by david lyon, surveillance is “any collection and processing of personal data, whether identifiable or not, for the purposes of influencing or managing those whose data has been garnered.”4 a closer investigation into both frontline caseworker decision-making and their utility and implications of multiagency collaborations is needed. some researchers believe that increasing data and surveillance within the department generally will move “child welfare” towards a twenty-first century transformation that is better aimed at prevention.5 further, some researchers believe that increasing the department’s collaborative nature will assist this efficacy in preventing child maltreatment.6 other researchers have suggested that surveillance harms communities that already 3 see dorothy e. roberts, digitizing the carceral state, 132 harv. l. rev. 1695, 1706 (2019) (book review) [hereinafter roberts, digitizing]. 4 see david lyon, surveillance society: monitoring everyday life 2 (2001). 5 see 21st century child well-being system, casey fam. programs (mar. 16, 2021), https://www.casey.org/tag/21st-century-child-well-beingsystem/ [https://perma.cc/3jul-c7yf]. 6 see sarah font, am. enter. inst., what lessons can the child welfare system take from the covid-19 pandemic? 1–12 (2021); see also emily putnam-hornstein et al., a public health approach to child maltreatment surveillance: evidence from a data linkage project in the united states, 20 child abuse rev. 256 (2011). 48 colum. j. race & l. f. [vol. 11:43 have been historically impacted by various systems.7 moreover, some researchers believe that widespread dispersal of power may be a function of the neoliberal state.8 systems and structures of power that work in conjunction with departments like dcfs or acs might reciprocally impact its priorities and practices, resulting in the over-surveillance and dehumanization of families. as kimberlé crenshaw explains, systems and structures have the embedded power to enable and perpetuate systemic oppression.9 it is no surprise that agencies like dcfs and acs disproportionately harm families with low income, families of color, black families, and indigenous families. the presence of the police state and the widespread targeting of already over-surveilled communities show that the tentacles of the carceral state might reach deep into the “child welfare” system. as such, it is critical to understand how investigative front-line caseworkers make decisions to remove children from their homes, including the ways that they use multi-system collaboration and partnerships. to understand this critical relationship and decisionmaking processes more in-depth, i conducted a qualitative study with front-line “child welfare” caseworkers, also known as emergency response (er) or investigative caseworkers within dcfs. investigative caseworkers have a unique position in the system in which they are tasked with being first responders for threats to child safety and consequently determining if children will become wards of the court. the guiding research question of the current study was: “what impacts the decision-making processes in which child protective service workers investigate and substantiate referred cases of child maltreatment?” findings from the study showed that major complexities exist within caseworker decision-making processes including the use of 7 see stop lapd spying coal., a report on understanding harm, surveillance, & information sharing in the department of children and family services in los angeles county (2020). see also lynne wrennall, surveillance and child protection: de-mystifying the trojan horse, 7 surveillance & soc’y 304 (2010); jessica lovaas, policing through ‘paperwork’: foster youth files and archival surveillance in the 21st century, 6 glob. stud. childhood 442 (2016). 8 see marilyn brown & barbara e. bloom, colonialism and carceral motherhood: native hawaiian families under corrections and child welfare control, 4 fem. crim. 151 (2009). 9 kimberlé crenshaw, mapping the margins: intersectionality, identity politics, and violence against women of color, 43 stan. l. rev. 1241 (1991). 2021] only system we’ve got 49 surveillance and monitoring, both internally and through other agencies. as such, two themes are discussed within the study: caseworker use of surveillance during investigation and multiinstitution partnerships in decision-making processes. these themes indicate that larger structures of power fuel and are reciprocally fueled by the “child welfare” system, leaving lasting impacts not only on families who come into the system but also department caseworkers. ii. methods a. methodology the current study utilizes constructivist grounded theory (cgt) as a way to explore how individual “child welfare” workers make meaning while engaging in decision-making processes.10 grounded theory, created by barney glaser and anselm strauss, is an inductive and iterative qualitative methodology with noted origins in pragmatism.11 cgt claims that “subjectivity is inseparable from social existence,” acknowledging the researcher as an active actor and co-constructor of knowledge.12 thus, cgt is highly compatible with pragmatism. similar to the tenets of pragmatism, cgt focuses on situated knowledge, recognizing an individual’s partialities and variances.13 b. data collection and analysis institutional review board (irb) approval was obtained from the irb of university of california, los angeles, prior to beginning the study. a semi-structured interview guide was created and included questions regarding general decisionmaking processes. participants were recruited via convenience sampling. participants were required to have experience in substantiating or investigating a case of child maltreatment as an emergency response worker in a county or state department of “child welfare”. coding was influenced by charmaz’s 10 see kathy charmaz, constructing grounded theory: a practical guide through qualitative research (2d ed. 2014) 11 see juliet corbin & anselm strauss, basics of qualitative research: techniques & procedures for developing grounded theory 9 (4th ed. 2015). 12 charmaz, supra note 10, at 14. 13 id. 50 colum. j. race & l. f. [vol. 11:43 “constructing grounded theory”14 and included initial process codes followed by focused coding. focused codes revealed some gaps in the data that were addressed in subsequent interviews until the point where limited novel data was being added. cgt acknowledges that the researcher is an active participant in the entire research process, including data collection and data analysis. for this reason, memos were frequently written.15 memos were both written and recorded before and immediately after the interviews were conducted, addressing initial thoughts and ethical considerations. memos were also written after coding, during coding, and while comparing data. reflexive memos additionally added space to explore and address biases and personal assumptions, as well as to prevent theoretical leaps. furthermore, to look closely at the context of the interviews, situational maps were utilized.16 iii. caseworkers use of surveillance in decision-making processes eighteen frontline investigative caseworkers from four different urban counties in the united states were interviewed for this study. interviews ranged from forty-five to ninety minutes and were conducted in-person, through phone call, or over zoom. caseworkers in this study were asked to share their processes for investigating and substantiating cases of child abuse and neglect. responses from caseworkers largely showed that uses of surveillance were prevalent throughout the decisionmaking process. use of surveillance came in the form of data use as well as in physical forms such as monitoring families. moreover, it occurred within the department by caseworkers directly, and also expanded through collaborations with other institutions. though often being a critical tool in the decisionmaking process, use of surveillance was a point of immense tension and reflection for caseworkers, impacting the ways in which they interacted with families and other agencies. a. departmental surveillance of uncooperative parents a large amount of surveillance that was used in decisionmaking processes by caseworkers during their investigations was 14 see generally id. 15 id. at 14. 16 see adele clarke, et al., situational analysis: grounded theory after the interpretive turn 127 (2d ed. 2017). 2021] only system we’ve got 51 in reaction to parental resistance and “uncooperative” parents. seven caseworkers shared that suspected cases are often escalated due to reasons beyond the actual suspected abuse or neglect claim.17 caseworker aida recalls one salient experience in which a family was pushed deeper into the system’s surveillance due to a father’s inability or unwillingness to answer dcfs calls.18 because of the father’s failure to communicate with the department, the voluntary services department refused to work with him, forcing aida to move the family into a more formal relationship with the court.19 like aida’s case, derek recounted experiences where the department enacted surveillance as a consequence of parental resistance. in derek’s story, a young mother who barely spoke english was confused about caseworkers showing up to her house.20 after the initial visit from derek and his supervisor, he explained that the mother subsequently “wouldn’t let us in, and she was hard to contact.”21 this became an issue and “pissed off the department,” resulting in added attempts to observe the family, labeling them as more non-cooperative every time she refused. this resulted in the children being taken from the mother’s home, something derek shared could have been prevented with more understanding and patience from the department. derek empathized with the mother stating: i just imagined myself, you know my mom being fed up like y’all crazy. we fine. i don’t need to talk to y’all. door slam. then next thing i know we got the government eyes on us . . . and it’s just like we uncooperative, when it was really just confusing, you know?22 derek was not the only caseworker who referred to departmental monitoring as eyes or “government eyes.” other caseworkers, including monica and alexis, also mentioned this in 17 to ensure anonymity, pseudonyms were used for all participants names as well as for formal names of places or locations mentioned during the interviews. 18 interview with aida, caseworker, dep’t of child & fam. servs. (nov. 9, 2019). 19 id. 20 interview with derek, caseworker, dep’t of child & fam. servs. (feb. 2, 2020). 21 id. 22 id. 52 colum. j. race & l. f. [vol. 11:43 their recollections. alexis shared, “when you refuse or say you’re fine, next thing you know you got government eyes on you 24/7.”23 additionally, monica stated, “once we put eyes on them ugh . . . and we take that child from her parents, it’s the worst thing you could do for her.”24 finally, aida shared how mandatory reporters’ fears might lead to unnecessary department eyes or surveillance. she stated, “the you’re-liable-if-something-happens kind of thing scares so many people into reporting whatever. once you report something there’s eyes.”25 paralleling derek’s story, these statements from other caseworkers show how much power the department has in subjecting families to unnecessary surveillance. this power is fueled by subjective assumptions made about parents, labeling parental refusal as being “uncooperative” or non-compliant. aida’s experience shows how the department has an ability to enact surveillance on its own terms, even in the early stages of a referral. the implications of this are dire. caseworkers expressed that they fear putting eyes on the family because it consistently pushes families deeper into the system, leading to more risk of family separation. b. utilizing preventative surveillance in ambiguous cases similar to caseworkers use of surveillance on “uncooperative” parents, surveillance also occurred when there was increased ambiguity in a case. ambiguity in cases often resulted from circumstances where abuse or neglect was not immediately obvious or severe enough to warrant immediate removal of the child from the home. this ambiguity was exacerbated by the lack of available data caseworkers could use to prove that maltreatment occurred. it was also a result of tools, like the frequently mentioned structure-decision making tool (sdm), lacking the ability to capture the entirety of a family’s circumstance. in navigating these gray areas, some caseworkers expressed the need to increase departmental monitoring so that they did not miss anything. the fear of missing something was extremely prominent when there were instances of child death within the department. because of this, caseworkers often 23 interview with alexis, caseworker, dep’t of child &fam. servs. (may 8, 2020). 24 telephone interview with monica, caseworker, dep’t of child & fam. servs. (dec. 8, 2019). 25 interview with aida, supra note 18. 2021] only system we’ve got 53 decided to take preventative action “just in case.” this was expressed by julia who stated: so a lot of the times when we are using the tools, everything seems like it’s good, we can return the child. but then . . . there’s something that you know, that we feel that isn’t right yet or that we see may be not being fully evaluated in the tool.26 in response to this “gut” feeling, julia decided to increase monitoring of the family until they could confirm or deny their suspicions, even though there was no evidence “on paper.”27 another caseworker, corey, recounted a similar feeling, sharing that: “the gut feeling you get, even though the paper said there is no evidence of abuse . . . you can see from the child’s eyes whether there is intimidation.”28 in this case, corey suspected more harm was happening when he looked at the child, even though there was no proof from the data and assessments. this provoked him to ask the judge to change the mother’s overnight visits to monitored visits. these stories highlight an extremely important point. many researchers have stated that caseworkers do not rely on risk assessment tools alone, but instead utilize their judgment and perceptions to prevent categorizing families as “high” or “low” risk erroneously.29 as exemplified in corey’s and julia’s cases, the inadequacies of tools led caseworkers to increase their surveillance in hopes of finding something that would confirm their gut feelings. even in the absence of tangible evidence and supporting data, some caseworkers continue to work against families based primarily on their own inner assumptions. several caseworkers also shared their experiences with utilizing other tools in attempts to fill in the missing gaps that existed within ambiguous cases, as highlighted in julia’s and 26 telephone interview with julia, caseworker, dep’t of child & fam. servs. (feb. 7, 2020). 27 id. 28 telephone interview with corey, caseworker, dep’t of child & fam. servs. (dec. 7, 2019). 29 see peter j. pecora et al., safety and risk assessment frameworks: overview and implications for child maltreatment fatalities, 90 child welfare 154 (2013). see also putnam‐hornstein et al., supra note 6; jeri l. damman et al., factors associated with the decision to investigate child protective service referrals: a systematic review, 25 child & fam. soc. work 785 (2020); cheryl regehr et al., confidence and professional judgement in assessing children’s risk of abuse, 20 rsch. on soc. work prac. 621 (2010). 54 colum. j. race & l. f. [vol. 11:43 corey’s stories. this included the use of discretionary drug testing. derek shared that drug tests were used as precautions and often were rationalized by an individual’s past history with the criminal justice system or dcfs.30 lonie similarly highlighted this point, stating: i told him to go [get] drug tests, and they were just scared. i was just trying to get them more ready. i said i know y’all smoked before. it’s fine. we just want to make sure just because of your history.31 another caseworker, cindy, adds that the provision of these tests was often discretionary, varying from random caseworker requests to test or requests for on-demand tests. this left parents fearful of testing.32 at times, this made parents evade drug testing, leading to increased monitoring and mistrust from the department. in utilizing caseworker discretion, monica recalls a scenario in which a mother was asked to do numerous “voluntary” drug tests to ensure child safety.33 this was based on suspicion that the mother was smoking marijuana in front of her child. the mother took one test which resulted in negative results. the mother refused subsequent testing requests. after multiple refusals, those working on the case recognized that they legally could not act. instead, they decided to increase unannounced visits “just to see what was going on.”34 this form of surveillance was due to suspicions of drug use around the child compounded by the mother’s refusal to disprove these suspicions. 1. tensions in utilizing surveillance for prevention the department’s insistence on preventing future risk of maltreatment through surveillance was an immense point of tension for caseworkers, as they often reflected on how it was a way to ensure child safety regardless of it feeling intrusive. danielle clearly exemplified this when rationalizing the need to be invasive, regardless of her difficulty with it: 30 interview with derek, supra note 20. 31 telephone interview with lonie, caseworker, dep’t of child & fam. servs. (feb. 12, 2020). 32 telephone interview with cindy, caseworker, dep’t of child & fam. servs. (may 6, 2020). 33 telephone interview with monica, supra note 24. 34 id. 2021] only system we’ve got 55 the department is so invasive. i struggled with that in the beginning. but i think we’re invasive for a reason. we have to do our job to make sure the child is okay. we have to make preventative measures for the future.35 danielle was echoed by dana who similarly rationalized the use of preventative surveillance to ensure that child maltreatment does not come under the department’s attention again: if we’re not invasive, and we’re very lenient, and we don’t catch these little bitty tiny details, that detail might make a huge impact in a year, something that we should have caught when we were on you for a couple of months.36 this point was further shared by mj who admitted to the intrusiveness of caseworker monitoring, rationalizing its purpose for “bettering” a child’s life. in her analysis, she acknowledged that the department makes it difficult on clients even if they are not directly separating the family: we can go down the route to where we don’t detain, but we are going to pull all of these efforts to make it really hard for the client, in order to better that child’s life. like hard. including requiring like 36 weeks of [domestic violence] classes, 6 months of sober living. we are really on top of you for the next couple of months.37 in these cases, shared by dcfs workers, there is a common theme of fear around future occurrences of child maltreatment that might have been prevented by the caseworker. this sense of responsibility for a child’s life is persistent throughout caseworker narratives. there is an internalized and consistent feeling that caseworkers must be the ones to ensure that a child is “safe” and risk-free in both the present and the future. the department is given a major 35 telephone interview with daniella, caseworker, dep’t of child & fam. servs. (july 2, 2020). 36 telephone interview with dana, caseworker, dep’t of child & fam. servs. (july 12, 2020). 37 telephone interview with mj, caseworker, dep’t of child & fam. servs. (june 26, 2020). 56 colum. j. race & l. f. [vol. 11:43 responsibility. if caseworkers fail to meet it, they may be blamed for injury or death to a child, and risk losing their job or incarceration. caseworkers mentioned how decisions to use surveillance and monitoring were significantly impacted by these pressures and expectations of the department and broader “child welfare” system. use of drug tests for example, was a point of tension for seven caseworkers who expressed feeling pressured to use them by their supervisors and other agencies. they explained that utilizing drug tests was often required to ensure that a home was safe for the child to stay, and that the parents had the capacity to fulfill their parental duties. yet, frequently these caseworkers had to drug test in instances where there were no prominent or concerning signs of safety risk. in adhering to preventative tactics, the department creates avenues for unnecessary and increased surveillance on families. cara shared her doubts in the department’s aim to take on a more preventative role stating: i’ve heard that there are things in the works about being more proactive like preventative care. but i don’t believe in that with the department. because if you start preventative programs that just means you have eyes on people and you’re just gonna take more kids. i think any government eyes on people like . . . that’s why certain communities are more policed. there are more eyes on people.38 cara’s reservations about departmental prevention efforts highlight many important implications for families. departmental shifts to enact more prevention works in conjunction with surveillance, potentially increasing family separation. further, it adds to the surveillance of individuals who are already constantly monitored by other systems, resulting in a culmination of policing tactics. iv. multi-institution partnerships in decision-making though caseworkers enacted surveillance themselves and through the internal work of the department, they also shared the ways in which their work was directly entangled with 38 telephone interview with cara, caseworker, dep’t of child & fam. servs. (feb. 1, 2020). 2021] only system we’ve got 57 various systems like hospitals, police departments, and courts. these working partnerships occurred both in-person and through data and technology including forms of mandatory reporting, training, partnered investigations, and special access privileges. working intimately with other agencies often increased monitoring and surveillance of families and impacted caseworkers’ trajectories of decision-making. this sort of monitoring and surveillance has been mentioned previously in the literature.39 in several circumstances, partnerships were revealed in less obvious ways, such as in caseworkers’ ability to access data from other agencies. several caseworkers utilized these forms of data from other agencies to decide whether child abuse or neglect actually happened. one caseworker, melissa, highlighted that specific data such as police reports and medical records, are key forms of evidence that help prove that abuse or neglect occurred.40 in the county that dana and a few other caseworkers worked in, parents were asked to sign a disclosure which would allow the caseworkers to access these forms of data from other agencies. dana explains that this disclosure allowed caseworkers to gain overarching access to data, including the ability to request medical records and school records of youth.41 in addition to these uses of data, other more blatant instances of multi-system surveillance occurred through collaborative training or partnered investigations.42 important to highlight from these caseworker narratives are the complexities around having access to a multitude of agencies. caseworkers use of “evidence gathering” across different agencies and their use of surveillance during the decision-making process was often deemed necessary, assisting them in determining both the presence of maltreatment and the 39 majid a. aleissa et al., a commentary on national child maltreatment surveillance systems: examples of progress, 33 child abuse & negl. 809 (2009); see kelley fong, getting eyes in the home: child protective services investigations and state surveillance of family life, 85 am. soc. rev. 610 (2020). see also jennifer reich, fixing families: parents, power, and the child welfare system (2005); dorothy roberts, child protection as surveillance of african american families, 36 j. soc. welfare & fam. l. 426 (2014); meghan e. shanahan et al., child maltreatment surveillance improvement opportunities, 79 n.c. med. j. 88 (2018). 40 telephone interview with melissa, caseworker, dep’t of child & fam. servs. (dec. 22, 2019). 41 telephone interview with dana, supra note 36. 42 id. 58 colum. j. race & l. f. [vol. 11:43 safety risk of leaving the child with their family. the following sections explore the various ways in which multiple systems are implicated within the front-line caseworker decision-making and how “evidence gathering” and surveillance are both utilized and subsequent byproducts of these processes. a. the courts, warrants, and “voluntary” services cases of child abuse and neglect are housed within dependency court and in some severe cases are also seen in criminal courts. because of this inextricable tethering to the courts, collaborative infrastructures have been created to ensure that caseworkers can gain more expedited access to both court warrants and drug testing during their decision-making processes. in this study, many caseworkers shared that they are expected to use the courts for warrants to complete their investigations and assist in their decision-making. the department’s relationship with the courts have allowed for the creation of several internal partnered processes, as well as creation of voluntary services or voluntary family maintenance as a way to monitor, track, and mitigate family risk. the use of any formal court procedure or process, whether warrant or voluntary services, increased tensions felt by caseworkers in their paradoxical roles as both investigators and advocates of families. as suggested by several caseworkers, the threat of warrants and voluntary services can be used to get parents to cooperate during the investigation. in one example, dana shares that you can get an investigative warrant if parents do not want kids to talk to the caseworker privately: some people will tell me you can’t talk to my kid without me, and i’m like i will need to talk to your kid like that’s not even a question, and if you don’t want to allow that . . . and it’s fucked up because this is intimidation to me. but i feel like i need to be transparent, if you don’t want me to talk to your kid, i’m gonna get an investigative warrant, and they’re going to approve it. if someone’s not cooperating, you go and get an investigative warrant. so, it’s kind of like you don’t really have a right to say no.43 43 id. 2021] only system we’ve got 59 in this example, dana highlights the inability for parents to truly consent under what feels like intimidation tactics. although the department technically states that they allow for family autonomy, if families create barriers to an investigation, they will face serious consequences. families are, in reality, unable to reject or refuse the department’s surveillance. similar to dana, carrie agrees that tensions exist in using warrants when families do not complete their court-orders on time: i don’t know if this is the policy or not, but i have been advised to do it by my supervisor after 12 months. it’s like an automatic warrant, so automatically you have to do a warrant if they [parents] don’t complete what they’re supposed to do in 12 months. the decision is to open a warrant, so it’s like you either decide to fight for the client and try to beg the court to give them six month[s], or you just follow the policy and seek the warrant even though they didn’t necessarily do anything, and it’s not an immediate safety [issue,] or there’s no danger.44 carrie’s story highlights an important power dynamic within the department and the caseworker decision-making processes. families who have already endured a year of surveillance and monitoring by the department can become placed in the crossfires between caseworkers and the courts. the fate of a family is situated between a caseworker’s willingness to advocate for them by begging the courts for more time, and a caseworker’s strict adherence to policy by serving an automatic warrant. in this scenario, the courts are at the top of the hierarchy, determining the trajectory of the family by either declining or allowing the caseworker and family more time to complete court-orders for family reunification. this power is held within the courts regardless of the caseworker not observing any immediate safety or danger risk. in this circumstance, families must endure either continued surveillance by the department, or family separation and additional cumulative surveillance by the courts because they did not satisfy court-orders. 44 telephone interview with carrie, caseworker, dep’t of child & fam. servs. (june 30, 2020). 60 colum. j. race & l. f. [vol. 11:43 1. voluntary services caseworkers continued to discuss the use of warrants when sharing stories about voluntary services. many times, when warrants were sought out, it was due to parents’ attempts to evade the system. in echoing dana’s point about intimidation through warrants, paul describes how warrants might be used as a threat when offering “voluntary” services: when we say voluntary services, we say it in a way where it’s not voluntary. but they didn’t feel safe leaving the kid in the home. this is all noted in the system. if you decline the services, then we will take measures to ensure that we keep the minors safe. so basically, read between the lines. if you don’t get this . . . if you don’t accept to have these services, we may potentially write up a warrant to take your children.45 not only are parents’ refusal of voluntary services tracked in the system, caseworkers who are already operating within a power hierarchy “offer” services to families under the threat of caseworkers acquiring warrants to remove children from the home. melissa reiterates this point, stating that voluntary services require court presence, even if families have not been substantiated for abuse or neglect. she adds that these services are posed as voluntary, but really are coercive: for the voluntary, it’s kinda like a volun-told. like we’re going to do a voluntary case so we’re going to take you to court. i didn’t even want to do a voluntary, if we do a voluntary, we are going to set this family up to fail. like we are going to take their kid just because we have eyes on them. because they don’t wake up early, and they don’t answer their phone. this is so wrong. voluntary services set up famil[ies] to fail.46 melissa’s opinions about both parental autonomy in decision-making, and effectiveness of court voluntary services is striking. in describing voluntary services, melissa emphasizes again, that families are under constant threat of being taken into 45 telephone interview with paul, caseworker, dep’t of child & fam. servs. (july 1, 2020). 46 telephone interview with melissa, supra note 40. 2021] only system we’ve got 61 court under more surveillance and risk of family separation. she further states that by adding voluntary services, you are adding more eyes on the family, leading to a likely family separation due to irrational reasons like failure to communicate.47 b. the criminal (in)justice system in addition to partnerships with the courts, collaborations between dcfs and police departments were the most frequently mentioned relationships throughout interviews with caseworkers. similar to this inextricable tie with the courts, dcfs’ relationship with the police department has also become embedded through the creation of collaborative policies and training between both agencies. as such, working with the criminal justice system, though sometimes discretionary, was not always optional for caseworkers. ten caseworkers in this study described the ways in which police departments and the courts have an immense amount of power and discretion over aspects of the caseworker decision-making process. dcfs caseworker miranda states that working with law enforcement changes the way she investigates, depending on how they “level with” her.48 similarly, she adds that this collaboration can change the dynamic between caseworker and families: with them responding with us, it kind of gives you a different first-hand experience with the family. rather than when you respond as dcfs only. i feel that it changes the report, and it changes the relationship that dcfs builds with family. you know, more likely than not families fear the police, especially given the areas that we can serve, such as predominantly undocumented families and people who have a history with law enforcement and don’t really trust it.49 the influence of the criminal justice system can impact caseworkers’ investigations and assessments indirectly or directly. moreover, it can exacerbate the monitoring and policing of families who already have past experience in the criminal justice system. the implications of this relationship also seep 47 id. 48 telephone interview with miranda, caseworker, dep’t of child & fam. servs. (july 14, 2020). 49 id. 62 colum. j. race & l. f. [vol. 11:43 directly into the dynamic between caseworker and family during investigation, altering the ways in which families perceive the department. aida states: when people see law enforcement, they tend to be more cooperative. because of fear. but i think that more often, families are more fearful of our department than we are of what they can do.50 1. types of “law enforcement” partnerships caseworkers in this study highlighted the different ways in which law enforcement or police and dcfs work together, sometimes in ways that are often not discussed in the larger body of research. in five interviews, caseworkers stated that this relationship was established from their very first days of working within the department. in these five cases, caseworkers attended a training that included collaborative simulation sessions taught by police and training caseworkers. these simulations were examples of situations that might happen in person, and allowed caseworkers to identify potential points of bias during their investigations and assessments before entering direct work with families. cara recounted her experience with simulations and the use of police officers stating: okay first i was like, i’m not a fan of cops, but it’s just these are cops that are either retired or in the process of retiring in the last few years. they’ve been in the force for a long time. and these are cops that have worked and have had so many experiences with dcfs. in terms of like, hey, we’re detaining, and parents might not be happy, and we need support.51 cara highlights the use of cops with extensive experience with dcfs, bringing to the forefront the historical intermingling of both of the systems. she states that police are a form of support, a way to mitigate parents’ unhappiness especially in cases of child removal.52 michael adds his gratitude for having police do collaborative training. he explains that police offer a sense of protection and teach specific lessons such as the differences between strangulation and choking, when to leave a 50 interview with aida, supra note 18. 51 telephone interview with cara, supra note 38. 52 id. 2021] only system we’ve got 63 house, and what protocols to follow when in danger.53 these foundational relationships between the criminal justice system and “child welfare” during new worker training already set a tone for expectations within the department, and necessitate a specific knowledge that is assumed to be only gained through a collaboration between both agencies. in moving beyond new worker training and discussing actual fieldwork during child maltreatment investigations, caseworkers revealed that their relationship with police continued. this relationship between law enforcement was discretionary, as there were no generalized standards of how to work with law enforcement across interviews. although their caseworkers mentioned policy that required law enforcement presence, implementations of the policies varied per caseworker. caseworkers presented different circumstances that they felt required law enforcement presence. these circumstances included: investigations of severe abuse, investigations of parents who are known to be aggressive or combative, investigations of families with prior dcfs history, or when needing supplemental information or evidence. katie, who worked in the department for two years, stated that working with law enforcement is rather common: we do a lot of collaboration with law enforcement. so, for example, if i got a referral that was in regard to domestic violence, it’s usually called in by law enforcement. they are really hard to get in contact with, but we have access to their emails and phones. some of them are really good, and some were just not. so, you’re trying to get into contact with law enforcement, especially because sometimes there’s criminal cases . . . and this also goes for sexual abuse and severe child abuse and stuff like that.54 katie’s explanation shows how deep and normalized ties with law enforcement are. they serve as both reporting parties and partners in investigations. they hold critical information needed for investigation, and also play a significant role in cases 53 telephone interview with michael, caseworker, dep’t of child & fam. servs. (june 2, 2020). 54 telephone interview with katie, caseworker, dep’t of child & fam. servs. (june 6, 2020). 64 colum. j. race & l. f. [vol. 11:43 that are deemed criminal by law. she adds that in domestic violence cases, caseworkers often pull call logs from law enforcement that show how many times they have been called and have come to the house: i would request call logs to the person’s house . . . which is like—i hate saying that out loud because it sounds so, like, intrusive—but i would do, like, call logs. if i put the specific person’s name, house, and apartment number, then it would come out, like, how many times law enforcement’s going out to the house.55 this form of evidence gathering adds to the already established surveillance that occurs when becoming involved with law enforcement. cody, another caseworker within dcfs, additionally explained that law enforcement is required when investigating physical abuse allegations where the caseworker’s gender does not “match” that of the child presumptively being maltreated: [w]hen i got the referral . . . it was a very detailed report stating that the child reported having marks and bruises, and she was female. i drove to law enforcement. local law enforcement. and i asked that i get a female officer, at least one backup officer, because of our policy. if it’s physical abuse, and there are possibilities of marks and bruises, then we have to go with law enforcement in case we have to place the child in protective custody.56 in this case, having a female law enforcement officer allowed cody to be able to investigate the child’s marks and bruises.57 this dcfs policy drastically altered the nature of his investigation as he would not have been able to conduct his investigation and make a subsequent decision without the use of law enforcement. this form of collaboration forces children and families to have unnecessary encounters with law enforcement, 55 id. 56 telephone interview with cody, caseworker, dep’t of child & fam. servs. (dec. 8, 2020). 57 id. 2021] only system we’ve got 65 and is embedded within policy. due to this, some caseworkers are forced into doing partnered investigations. 2. criminal justice data the ties with the criminal justice system seep also into generational data that is shared and collected between both systems. caseworkers acknowledged that some forms of data have been used for years, with databases showing generational cases of abuse, neglect, and incarceration. melissa shared, “i can see that americans have shared trauma, history of us taking them as kids. immigrants don’t know us yet, but they will.”58 the use of historical data and shared documents were claimed to be a necessity, though sometimes they proved to be beneficial and other times acted as a barrier. caseworkers discussed that these forms of data sometimes provided pivotal information to help them substantiate claims of maltreatment. they also shared that their ability to view historical data enabled them to question evidence and pursue hunches. in one salient instance, corey found out that a foster mother’s boyfriend had a criminal history and was given access to the home, leading corey to believe that there might be sexual abuse occurring: [s]o now as a social worker, i’m triggered now to look if this child has been a victim of sexual abuse as well . . . because if she’s [the foster mom] given this you know . . . felon access to the home, there’s a possibility that this child might have been subjected to sexual abuse and told not to mention it to anybody.59 corey’s labeling of the mother’s boyfriend as a “felon” and subsequently questioning sexual abuse made him seek out continued forms of monitoring to ensure that the child was not being harmed. in being able to see various data, including prior histories within the criminal justice system, caseworkers are able to come to their own conclusions about family risk and child safety. these forms of data can cause barriers for families, exposing them to more surveillance and potentially impacting future outcomes for their children. a story shared by melissa 58 telephone interview with melissa, supra note 40. 59 telephone interview with corey, supra note 28. 66 colum. j. race & l. f. [vol. 11:43 showed that even charges as a youth can impact caseworker and departmental decision-making: i do the background checks on them so we could have officially a safety plan in place for the department, and sure enough he had a ticket for consumption of alcohol when he was like eighteen years old. so, the department was like, this is still something on his record. they had no one else who could be a protective parent, and i was like this man has stability, and we are giving him crap even though it was nothing violent or offensive or anything.60 in this case shared by melissa, a child was removed from her home due to child abuse. melissa identified a family member of the child, but was unable to place the child with him based on his previous record with the police department. this resulted in having the child placed in foster care due to having no other options. this recollection shows that these forms of data tracking follow families throughout years and impact the trajectory of future cases that might come into the department. similarly, this data informs risk assessments and other predictive algorithms that are used by the department. caseworkers dana and corey mention how these forms of data impact risk assessments, stating that these prior histories can lead to erroneously inflated scores. there was a perceived unfairness to this, corey shares, “sometimes [the scores are] high, and it’s just like well, it’s just because of their history and that to me is very unfair.”61 many forms of criminal justice and dcfs data intertwine and follow people throughout their lives. five interviews indicated that reports to their state departments of justice (doj) were required for both victims and perpetrators of certain forms of maltreatment. cody stated that it becomes part of a parent’s criminal record.62 to be removed from this database, individuals have to go through a grievance hearing. one of cody’s cases ended with a mother attempting to get parental rights back through this grievance process. the mother wanted to expunge her record so that she could regain reunification possibilities with 60 telephone interview with melissa, supra note 40. 61 telephone interview with corey, supra note 28. 62 telephone interview with cody, supra note 56. 2021] only system we’ve got 67 her daughter. during this grievance hearing, several forms of data were used—including the doj data, data obtained by police, and reports from the caseworker. these several forms of data did not favorably assist the mother as explained by cody: the first grievance hearing fell apart. the grievance commissioner told her that there were enough reasons for the charges to be made, because the police report and the harm in the initial report and statements from the child’s mouth for the investigation reveal that she inflicted harm to the child.63 this case was a clear example of how several agencies can be implicated in significant departmental decision-making processes, fueling the continuation and need for data partnerships. dana and carrie explain that these databases are used to further punish and criminalize those who have been substantiated for abuse.64 carrie adds that this information is even used further down the road when approving houses for foster families.65 these forms of data are not just impacting families as they currently are present within the system, but last throughout generations, impacting future decision-making and imprinting on records permanently. c. bypassing parents through hospitals and schools in addition to collaborations with courts and the police described above, caseworkers also shared their experiences with both the medical system and education system. this included using hospitals and schools as sites of special access, additional sources of surveillance, and pipelines into becoming more entrenched within the “child welfare” system. examples of this in the medical field are shown through caseworkers’ use of healthcare forms, medical exams, and hospital holds in this study. dcfs worker michael explained that he was able to use hospital visitation logs to track when and why certain family members were coming to visit a mother who was under the purview of the department for using drugs while pregnant.66 by utilizing hospital logs, he was able to see patterns and match 63 id. 64 telephone interview with carrie, supra note 44. 65 id. 66 telephone interview with michael, supra note 53. 68 colum. j. race & l. f. [vol. 11:43 them with his own investigatory case notes. this led to a revelation that the mother and father were actually engaging in an incestual relationship, playing a factor in the eventual removal of the child from mother’s custody. as explained by michael, the hospital logs were key in his investigation and further monitoring of the unborn baby.67 alongside caseworkers’ usage of hospital forms, caseworkers also utilized the hospital as a site to substantiate maltreatment and detain youth from their parents. cody shares his experience after finding out with a police officer, that a young girl was abused by her mother: i am the primary caseworker, but in terms of determining whether this is criminal, whether this is abuse, law enforcement and i, we work jointly with the hospital. what they usually would do in that circumstance, we call it into the nearby hospital, a specific child abuse scan clinic. we transferred the child there. so, the forensic staff measures the lacerations on her body. so, at that point, it was determined that the child endured cruelty and physical abuse. she did have to be hospitalized, so i put a hospital hold, and then call in to after-hours detention control.68 in this case, it was necessary for cody to use both the police and the specific hospital to finish his investigation and substantiation of abuse. it reveals that processes within the department have become so tied to and reliant on outside agencies that it is virtually impossible for caseworkers to do their job without it. due to this, caseworkers are able to exercise power more diffusely, extending their arms into various spaces into homes and hospital rooms, and making surveillance more inescapable for families. in another case shared by susan, the decision to use a hospital hold was made after accessing parents’ criminal and mental health records. she shares: my supervisor said we needed to detain, and these were newborn baby twins, but i guess that on the criminal record, the mom had child endangerment and a lot of mental health problems. and i don’t 67 id. 68 telephone interview with cody, supra note 56. 2021] only system we’ve got 69 know, her sister wanted to take the kid[s] but because the sister was kinda like giving slight misinformation or whatever so we ended up being like you’re not reliable. so, when we were detaining, i had to go tell her like you’re gonna leave the hospital, but your kids aren’t going with you. my mentor was like how do you feel right now? i was like i feel like shit. like i hate this.69 the culmination of access to multi-institutional data and the use of subjectivity and assumptions led to a decision that susan did not agree with but was expected to enforce.70 hospitals were not only an accessible space to force family separation, they were an embedded part of how caseworkers could exercise monitoring and control in the decision-making process. detaining children in the hospitals was done in conjunction with law enforcement in some form, and was often a direct consequence of caseworkers mistrusting family members. 1. evading consent through schools besides hospitals, schools were also implicated within the caseworker decision-making process. although schools are often noted as sites of mandatory reporting, cara shared that they are also spaces to bypass parental consent for specific cases of child maltreatment: generally, i want to talk to the kids first, which is tricky, but you can talk to them if they’re in school, and you don’t need consent from their parents. and i don’t know that i agree with that but . . . so you can go to school without parents’ consent if it’s an investigation only. so, people on the back end cannot do this without consent.71 when discussing this ability to bypass, she also mentions the tensions that arise from using this option: it’s just like you’re talking about the rights of the parents and children’s rights, because kids are not going to, a little kid . . . most of my referrals are 69 telephone interview with susan, caseworker, dep’t of child & fam. servs. (may 8, 2020). 70 id. 71 telephone interview with cara, supra note 38. 70 colum. j. race & l. f. [vol. 11:43 younger kids. so you’re going and talking to a first grade[r] without their parents’ consent, they don’t really know how to consent, so it’s a really sticky situation, because it’s like rights versus getting a thorough investigation. it’s like law enforcement can’t even do that. they can’t just go to a school and just talk to a kid.72 this significant example, though only mentioned explicitly by one caseworker, shows explicit forms of power used by the department. cara’s ability and preference to speak with kids first brings into question the civil liberties and rights of not only children, but families as well. further, it calls into question schools’ complicity in allowing for workers to access privileges that are otherwise prohibited. these forms of access and shared monitoring are not always acknowledged, though they are deeply embedded within the system. powerful privileges given to caseworkers, even in the name of child safety and prevention, produced tensions for cara who posed rights and “a thorough investigation” as dichotomous.73 in other words, a situation in which family rights were prioritized to the same level as the acquisition of needed evidence seemed an unlikely possibility. these difficult and complex situations that arose in different caseworkers’ cases lead many of them to reflect on their positions and roles within the department. v. conclusion the current study aimed to explore decision-making processes of frontline investigate caseworkers at dcfs, and revealed immense amounts of complexities throughout the department including a reliance on and need for surveillance. these complexities included tensions felt by caseworkers, especially in their uses of surveillance tactics internally and across multiple institutions. this led to some caseworkers questioning the system, doubting its efficiency in securing child safety as it intends. lonie expressed at the conclusion of her interview, that the “child welfare” system is the normalized solution to addressing harm caused to children, no matter how traumatic it is. she states, “even when parents do bad things does it mean that you should take the children away? unfortunately, 72 id. 73 id. 2021] only system we’ve got 71 we traumatize these kids even more. it’s the only system we’ve got.”74 lonie’s sentiments lend a proposition to interrogate the primary ways in which the united states has addressed harm to children. her statement “it’s the only system we’ve got,” allows for a critical questioning into the role of the system and into the possibilities of alternate modes of care that do not result in the traumatic havoc that the current department often causes. as exemplified by the stories shared by caseworkers in this study, the system of protection that we currently rely on is riddled with power hierarchies that often capture families in a web of generational surveillance and tracking. throughout the interviews, it was made clear that caseworkers, as investigators and helpers, both exercised and experienced power dynamics throughout their work. during several investigations, caseworkers found themselves utilizing intimidation and coercive tactics, often increasing surveillance and monitoring of families for the sake of “child protection.” surveillance of families required both the collection of historical data and physical monitoring of families. these surveillance tactics were projected onto families without their ability to consent or refuse without repercussion. when parents refused surveillance or were not cooperative with departmental demands, they faced consequences in the form of additional monitoring and sometimes subsequent family separation. due to the serious implications of using these tactics on families, caseworkers often felt tensions knowing that they had little room to deviate from department policy. in this way, caseworkers both exercised power and experienced power dynamics from their supervisors, departmental policies, and outside actors like the courts. these findings add to previous literature on caseworkers’ experiences with powerlessness, role tensions, and role conflicts in decision-making.75 these complexities that are exacerbated by feelings of role tensions create a diffuse matrix of power that families became entrenched in. the department and broader “child welfare” systems aim to protect children by embedding many forms of surveillance 74 telephone interview with lonie, supra note 31. 75 kimberly bundy-fazioli et al., a qualitative examination of power between child welfare workers and parents, 39 brit. j. soc. work 1447 (2009). see also martha l. jones, role conflict: cause of burnout or energizer?, 38 soc. work 136 (1993). 72 colum. j. race & l. f. [vol. 11:43 and tracking within the department and collaborating with courts, police, hospitals, and schools. the stories shared by caseworkers exposed sites of surveillance and power that are often overlooked by the research including hospitals and schools. further, findings also highlighted the inextricable connections between more widely known partner institutions like the courts and the criminal justice system. through uses of shared data, partnered investigation processes, collaborative training caseworkers, and special access privileges, caseworkers in this study frequently blurred the already thin line between family’s rights and the need for a thorough investigation. in ambiguous cases where data was missing or inadequate, caseworkers relied on their own judgments and inclinations, additional departmental surveillance, and other agencies to accumulate the information or evidence they needed to find the occurrence or absence of maltreatment. when explaining how to fill these evidence gaps, some caseworkers discussed that tools like the sdm were not always adequate at evaluating risk, frequently missing important points or erroneously inflating or deflating risk scores. as such, some caseworkers reiterated the importance of relying on their gut feelings or other institutions to guide their next steps. the discretionary and cumulative uses of technological tools and caseworker judgment creates a cycle of subjectivity that greatly impacts families. although literature has acknowledged deep flaws in the departments’ use of historical data, they also pose that human or caseworker “checks” are a way to regulate use of algorithmic decision-making.76 however, i pose that caseworker professional judgments or inclinations as a form of regulation is not enough to shift potential and actual harm caused by these technologies, as both the data that feeds the technology and the caseworker themselves are serious vehicles for subjectivity that cannot be rectified through reformation. more ideological undertakings are at stake within these topics. as stated by roberts, predictive approaches, in general, support “punitive governance” and are embedded within the carceral state.77 76 see emnet almedom, nandita sampath, & joanne ma, algorithms and child welfare: the disparate impact of surveillance in risk assessment technologies, berkeley pub. pol’y j., fall 2020, at 14. 77 roberts, digitizing, supra note 3, at 1712–24. 2021] only system we’ve got 73 the use of surveillance in decision-making processes within “child welfare” is still an under-researched topic. in the literature, it is broadly discussed in oppositional ways. a body of literature explores surveillance as an intrusive extension of the state.78 as fong argues, child maltreatment investigations are often a site of invasive surveillance of families through home visits, assessments, background checks, and information sharing with various systems.79 conversely, another body of literature discusses the utility of surveillance through large databases which aim at more accurately and efficiently preventing and assessing safety risks.80 this body of literature emphasizes the need to extend surveillance through potentially applying a public health approach, increasing information-sharing linkages with other systems, and adding more descriptive measures and variables of cases to databases. the tracking of families through multi-system data and information-hubs is often touted as preventative or otherwise necessary in assisting youth labeled as “at-risk” or “vulnerable.”81 given the proliferation of the use of predictive analytics and artificial intelligence in “child welfare”, continued analysis of the use of surveillance and data within the “child welfare” system is essential. because “child welfare” has more recently been engaged in using technology and predictive analytics to assist in decision-making points in child-welfare, it is important to continue to address the nuances of decision-making and critically analyze if there are alternative ways of supporting child safety without the surveillance and policing tactics. in this age of technology and the push for inter-agency collaboration, it is important to ask the questions of what “evidence” is being gathered and for what purpose, who it serves and why, and what 78 see fong, supra note 39; venezia michalsen, abolitionist feminism as prisons close: fighting the racist and misogynist surveillance child welfare system, 99 prison j. 504 (2019). see also roberts, paradox, supra note 2. 79 fong, supra note 39. 80 see rebecca t. leeb & john d. fluke, child maltreatment surveillance: enumeration, monitoring, evaluation, and insight, 35 health promotion & chronic disease prevention in can.: rsch., pol’y & prac. 138 (2015); see also nigel parton, the ‘change for children’ programme in england: towards the ‘preventive-surveillance state’, 35 j.l. & soc’y 166 (2008); putnam‐hornstein et al., supra note 6. 81 see paul m. garrett, the electronic eye: emerging surveillant practices in social work with children and families, 7 eur. j. soc. work 57 (2004). 74 colum. j. race & l. f. [vol. 11:43 are the implications. given caseworkers’ concern with not having enough options, we must also consider what providing services for youth and families will look like without the current system. understanding the department’s inability to work independently from other punitive systems like the criminal injustice system, allows us to question the role of the “child welfare” system within a larger carceral ecosystem that upholds the carceral state. the “child welfare” system’s tactics of policing often create an inescapable and intergenerational trap for families. it becomes a point of reflection then, to consider that the “child welfare” system acts as a punitive law enforcement agency or a family policing system as opposed to one akin to a social service agency. considering these points, future research may dive deeper into alternate modes of addressing harm caused to children that do not rely on the current system. vi. limitations due to the qualitative nature of the study, the findings presented in this paper represent situated knowledge that is context-specific and do not claim to be generalizable. rather, the findings of the study can be used to expand our knowledge of decision-making processes, acknowledge nuances within the “child welfare” system, and provide foundational inquiry for future research. limitations of the current study include possible biases that occur during coding, analysis, and manuscript writing. as cgt suggests, researchers are a critical and active part of the research process who are constantly interpreting the text.82 any meaning ascribed to the text is intended to stay close to the perspective of the participant, though subjective interpretations were undoubtedly made.83 82 charmaz, supra note 10. 83 id. columbia journal of race and law vol. 11 july 2021 no. 3 article assimilation, removal, discipline, and confinement: native girls and government intervention addie c. rolnick* a full understanding of the roots of child separation must begin with native children. this article demonstrates how modern child welfare, delinquency, and education systems are rooted in the social control of indigenous children. it examines the experiences of native girls in federal and state systems from the late 1800s to the mid1900s to show that, despite their ostensibly benevolent and separate purposes, these institutions were indistinguishable and interchangeable. they were simply differently styled mechanisms of forced assimilation, removal, discipline, and confinement. as the repeating nature of government intervention into the lives of native children makes clear, renaming a system does not change its effect. the historical roots of these systems must be acknowledged, and the current systems must be abolished and replaced. to answer the question of what a nonpunitive, non-assimilative system would look like, this article looks to tribal courts and indigenous justice systems. it points to specific examples of how native communities have reshaped ideas * san manuel band of mission indians professor of law, william s. boyd school of law, university of nevada, las vegas. the author thanks neelum arya, theresa rocha beardall, sarah deer, kim pearson, lauren van schilfgaarde, pat sekaquaptewa, and david tanenhaus for helping to articulate a framework of social control over native children; victoria tokar for locating and analyzing historical documents; nancy polikoff and jane spinak for organizing this volume; the editorial board for its ceaseless and principled work; and dorothy roberts for illustrating so clearly why abolition is as necessary for child welfare as it is for police and prisons. 812 colum. j. race & l. [vol. 11:811 about caring for and disciplining children, including traditional adoption, kinship care, wellness courts, family group conferencing, and a “best interests” standard that emphasizes the link between individual and collective well-being. 2021] assimilation, removal, discipline 813 i. prologue: ghost buildings ...................................................... 814 ii. introduction ........................................................................... 820 iii. assimilation, removal, discipline, and confinement: boarding schools, courts, reformatories, and foster parents................................................................................ 824 a. solving “the indian problem”: erasure through assimilation ................................................................. 826 b. severing ties between children, families, and nations: removal as the mechanism for assimilation ................................................................. 835 c. punishing resistance: controlling children through discipline and confinement ........................ 840 iv. re-envisioning justice for children ................................... 848 a. customary adoption and kinship care ..................... 850 b. wellness courts and family group conferencing .... 853 c. best interests ............................................................... 855 v. conclusion .............................................................................. 859 814 colum. j. race & l. [vol. 11:811 i. prologue: ghost buildings in the late 1800s, fort marion in florida and fort sill in oklahoma housed native1 prisoners of war, including kiowa, comanche, and apache prisoners.2 in 1886, a group of apache prisoners were sent from fort sill to florida; the men went to fort pickens and the women and children to fort marion.3 colonel richard pratt visited fort marion that year; he returned with a group of apache children and an order that all children from the florida prisons should be sent to his new school for indian children in carlisle, pennsylvania.4 pratt, the architect of 1 this article employs the word “native” interchangeably with the word “indigenous” to describe the peoples indigenous to the territories that make up the present-day united states. indigeneity is a political status and a racialized category. the “indian” racial category (for example, on the census) includes people who are not legally considered indians. the “indian” legal category includes many people of mixed racial backgrounds. neither is coextensive with the indigenous category, which may encompass anyone affiliated with colonized peoples. see generally addie c. rolnick, the promise of mancari: indian civil rights as racial remedy, 86 n.y.u. l. rev. 958, 967 (2011) (examining the relationship between the indian legal and racial categories). where this article refers to specifically to the legal category of indian (federally recognized indian tribes and their members, a subset of indigenous people), it uses the terms “indian” and “tribe.” 2 see generally alicia delgadillo & miriam a. perrett, from fort sill to fort marion, a documentary history of the chiracahua apache prisoners of war, 1886–1913 (2013) (history of apache internment at forts). see also manu vimalassery, antecedents of imperial incarceration: fort marion to guantanamo, in the sun never sets: south asian migrants in an age of u.s. power 350–367 (vivek bald et al. eds. 2103) (describing military imprisonment and torture at fort marion). 3 delgadillo & perrett, supra note 2; heather shannon & jeff haozous, the youngest prisoners: general nelson a. miles’s photographs of apache children, national museum of the american indian blog (apr. 17, 2013), https://blog.nmai.si.edu/main/2013/04/the-youngest-prisoners-general-nelson-amiless-photographs-of-apache-children.html [https://perma.cc/vn4j-d6lt] (describing separation of apache men, women, and children and eventual removal of children to carlisle school); jaime g. vela, returning geronimo to his homeland: the application of nagpra and broken treaties to the case of geronimo’s repatriation, 1 am. j. indigenous stud, si78, si86 (2017) (describing imprisonment of apache prisoners of war). 4 letter from r.h. pratt to comm’r of indian affs., nov. 9, 1886 (on file with author) (avaliable at https://carlisleindian.dickinson.edu) (documenting 1886 transfer of apache children, including eight girls, from fort marion and noting instructions from interior and war departments that all children between 12 and 22 should be transferred from fort marion to carlisle); letter from r.b. ayres to asst. adjutant general, may. 3, 1887 (on file with author) 2021] assimilation, removal, discipline 815 the federal government’s indian boarding school program, had previously worked at fort marion, overseeing prisoners and creating and refining a program of assimilation that would later form the blueprint for the carlisle school.5 carlisle was styled as an alternative to the strategy of killing native people in order to solve “the indian problem.”6 pratt proposed instead to “kill the indian in him and save the man.”7 carlisle was the first federal indian boarding school. pratt refined his assimilationist curriculum and disciplinary techniques on the apache children and later generations of native children. he employed methods developed during his time working as a prison guard at fort marion.8 carlisle’s first generation of apache children had been prisoners and then students, but the same approaches were used in the prison and the school and, indeed, the same person imposed them. pratt’s carlisle experiment would spawn a national network of boarding schools for native children. the chemawa indian school is one of the many federally run boarding schools opened in carlisle’s image. opened in 1880 in oregon and then moved to a new building in 1885, chemawa is the oldest (avaliable at https://carlisleindian.dickinson.edu) (documenting 1887 transfer of 62 prisoners, including 32 children to carlisle); special order no. 92, may. 10, 1888 (on file with author) (avaliable at https://carlisleindian.dickinson.edu) (order from assistant adjutant general whipple directing transfer of children from fort barrancas to carlisle). 5 sarah kathryn pitcher hayes, the experiment at fort marion: richard henry pratt’s recreation of penitential regimes at the old fort and its influence on american indian education, 1 j. florida studies 1, 2 (2018) (describing pratt’s work at for marion and its influence on his education plan, and noting that his prison career is deemphasized by historians in favor of a focus on his work at carlisle). 6 for an explanation of the “problem” presented by the continuing presence of indigenous peoples on land sought by white settlers, see nelson a. miles, the indian problem, 128 n. am. rev. 304 (1879). 7 richard h. pratt, the advantages of mingling indians with whites, 19 soc. welfare f. 1, 45 (1892). see also patrick wolfe, settler colonialism and the elimination of the native, 8 j. genocide res. 387, 397 (2006) (describing pratt’s assimilationist philosophy). 8 see hayes, supra note 5, at 3–4 (discussing the prison’s influence on pratt’s methods and his belief in the rehabilitative possibilities of a prison setting, including its architecture). 816 colum. j. race & l. [vol. 11:811 continuously operating boarding school in the united states.9 eight puyallup boys who would become students at the school built it under the supervision of lieutenant melville wilkinson, a friend of pratt’s; the school was initially called forest grove and served students from the puyallup and nisqually reservations in washington.10 students were trained in genderspecific industries: blacksmithing, shoe making, carpentering, and wagon making for boys, and sewing and cleaning for girls.11 the assimilationist philosophy of boarding schools has long since been rejected, and the bureau of indian education since the 1970s has pursued a goal of supporting selfdetermination and sovereignty.12 but many of the children who attended chemawa are still buried in unmarked graves around the building.13 in 2003, a student named cindy gilbert sohappy 9 chemawa history, chemawa indian school (aug. 8, 2017), https://chemawa.bie.edu/history.html [https://perma.cc/m4my-jenb]; charles e. larsen, history of chemawa indian school, willamette u. archives, 1–3, https://libmedia.willamette.edu/cview/archives.html#!doc:page:manuscripts /5408 (last visited june 1, 2021) (reporting on initial construction). 10 larsen, supra note 9, at 9 (reporting on 1880 construction). 11 larsen, supra note 9, at 3–4. 12 health and safety risks of native children at bureau of indian education boarding schools: hearing before the s. comm. for indigenous peoples of the united states, 116th cong. (2019) (statement of mark cruz, deputy assistant sec’y, pol’y & econ. dev. indian aff., u.s. of the dep’t interior), https://www.doi.gov/ocl/indian-boarding-schools [https://perma.cc /fp2z-82uz] (testifying about chemawa student deaths and that chemawa is one of four off-reservation schools directly operated by the bureau today and describing that the schools’ mission as “to provide indian children with a highquality, culturally-relevant education and, to build within our students the knowledge, skills, and character needed to address and overcome the challenges of adulthood, while giving them the educational foundation to pursue their dreams”). see natalie pate, student deaths, lack of accountability at chemawa bring heat from congress, stateman j. (may 20, 2019), https://www.statesmanjournal.com/story/news/education/2019/05/20/salemoregon-chemawa-indian-school-health/3686698002 [https://perma.cc/xlv84t6n] (describing hearing). see also press release, u.s. dep’t interior, bureau of indian affairs, chemawa indian school old spirits and a fresh beginning (dec. 23 ,1976), https://www.bia.gov/as-ia/opa/online-press-release/chemawaindian-school-old-spirits-and-fresh-beginning [https://perma.cc/z8btsbp](press release describing chemawa as “adolescent” in 1976). 13 marsha small’s research has revealed “multiple unmarked graves,” many from the late 1800s. telephone interview with marsha small, ph.d. candidate, montana state university in bozeman (apr. 24, 2021) (on file with author). see also marc dadigan, unmarked graves discovered at chemawa 2021] assimilation, removal, discipline 817 was found dead at chemawa.14 she died in a locked room that was one of four small cells used by the school as drunk tanks.15 a subsequent inspector general investigation blamed her death on poor supervision by school officials.16 cindy attended a school with a mission of supporting tribal self-determination, but her death amid by the unmarked graves on the campus reveals the carceral roots of the system—indeed, the building—in which she was being educated. around the same time the federal government opened chemawa, the state of south dakota opened the dakota reform indian school, al jazeera, (jan. 3, 2016), https://www.aljazeera.com/ features/2016/1/3/unmarked-graves-discovered-at-chemawa-indian-school [https://perma.cc/lw8d-at5p] (describing marsha small’s unpublished thesis, “a voice for the children of chemawa cemetery”); erin deitrich, graduating grandmother’s research examines painful native american boarding school history, bozeman daily chronicle (may 9, 2015) (describing small’s work mapping the grave sites). small explained that when she began mapping the cemetery, “it was unkempt. it was overgrown.” interview with marsha small, supra. she described the mapping project as “really heavy work” driven by a “responsibility to these children and families.” id. her work links chemawa’s history to present policies; she notes that the removal of children to boarding schools “opens that door that you can just take our kids.” id. 14 suzan shown harjo, a native child left behind, indian country today (jul. 2, 2004), http://www.senaa.org/doi/achildleftbehind.htm [https://perma.cc/j466-5qxu]; warm springs: a place where children die, oregonian (2004). 15 although chemawa is nominally a school, it appeared on the bureau’s inventory of juvenile detention facilities because it, in effect, had its own on-site jail. u.s. dep’t interior, office inspector general, assessment no. x-ev-bia-0114-2003, interim report on indian country detention facilities 2 (apr. 2004) (explaining that the school appeared on the bureau’s detention inventory because of the cells “used to temporarily detain unruly or intoxicated students”). 16 federal officials determined that staff failed to check on cindy every fifteen minutes as required. see memorandum from earl e. devaney, inspector general, u.s. dep’t interior, to secretary dep’t interior (nov. 1, 2005), https://www.doioig.gov/sites/doioig.gov/files/chemawa081406.pdf [https://perma .cc/sap6-mnx5]. the fbi also investigated, but declined to file involuntary manslaughter charges against staff members. christopher lee, report cites bia in death of teenager, wash. post (july 26, 2006), https://www.washingtonpost.com/archive/politics/2006/07/26/report-cites-bia-indeath-of-teenager/194ef5ec-4af9-4ed8-ba6d-96ec5244925a [https://perma. cc/nf4k-kmdz]. the u.s. later paid cindy’s family $1.8 million to settle their civil suit. associated press, oregon: family settles lawsuit after death at indian school, n.y. times (sept. 16, 2006), https://www.nytimes.com/2006/09 /16/us/16brfs-001.html [https://perma.cc/h8f4-rrl4]. 818 colum. j. race & l. [vol. 11:811 school, later known as the south dakota state training school.17 the building, located in plankinton, s.d., served as a juvenile prison during the 1990s tough-on-crime era of juvenile justice18 and then housed a juvenile boot camp for girls in 1998 and later a program for serious female juvenile offenders.19 in south dakota, native children make up a large portion of the young people in state juvenile facilities20—a legacy of colonization, federal underinvestment in reservations, and federal efforts to relocate indian people to cities.21 naturally, the training school housed many native girls. in 1999, a resident named gina score died of heat exhaustion after being forced to run almost three miles in the sun as part of the school’s program of harsh rehabilitative discipline.22 videos produced during a subsequent consent decree show staff with shields, handcuffs, and batons in combative encounters with native girls, sometimes tying them down to beds to control them.23 juvenile facilities are ostensibly rehabilitative, but the use of shields and restraints against native girls at the facility was a visual reminder of how the state and federal governments have long treated native children as a problem to be contained and controlled, violently if necessary. fort sill, where the apache prisoners were first sent, was repurposed in the 1940s as an internment facility for japanese americans and then again as a military prison until it closed in 17 opened in 1886 as the dakota reform school, the plankinton site became the state training school in 1905. addie c. rolnick, native youth & juvenile injustice in south dakota, 62 s.d. l. rev. 705, 722 n.102 (2017) [hereinafter, rolnick, native youth & juvenile injustice]. 18 addie c. rolnick, untangling the web: native youth and juvenile justice, 19 n.y.u. j. l. & pub. pol’y 49, 74–75 (2016) [hereinafter rolnick, untangling the web] (describing 1990s era of juvenile justice). 19 rolnick, native youth & juvenile injustice, supra note 17, at 722 n.102. 20 id. at 720–22. 21 see infra notes 66–71 and accompanying text (describing termination era policies); kevin abourezk, native sun news today: tribal takeover of troubled hospital questioned, indianz (nov. 30, 2018), https://www.indianz.com/news/2018/11/30/native-sun-news-today-tribaltakeover-of.asp [https://perma.cc/xn84-4dq4] (describing the influence of relocation policy on rapid city’s native population, even though the city was not an official target of federal relocation). 22 see bruce selcraig, camp fear, mother jones (dec. 2000), https:/ /www.motherjones.com/politics/2000/11/camp-fear [https://perma.cc/5v6f-8886] (detailing score’s death and describing conditions at plankinton). 23 see rolnick, native youth & juvenile injustice, supra note 17, at 722 n.103. 2021] assimilation, removal, discipline 819 2010.24 most recently, it was used briefly by the trump administration as a holding facility for migrant children.25 the cell where cindy gilbert sohappy died was removed from chemawa after the inspector general investigation that followed her death.26 the larger question of why a boarding school had a jail inside it was not addressed in the reports. the school continues to house several hundred native students a year. after multiple iterations, the former south dakota state training school is now aurora plains academy, a privately run residential treatment facility.27 despite its name change, reinvention as a residential treatment facility, and private owners, it is still a place for confining delinquent children, many of them native, and it is still plagued by allegations of abuse.28 the persistence of physical structures of confinement are a reminder that child welfare, education, and juvenile justice were created as systems of racial and gendered social control. each wave of reform seems intended to leave behind the problems created by these systems, but the buildings tell a different story. the jail cell at chemawa was a physical reminder of the roots of indian education as a tool of assimilation achieved through removal, discipline, and confinement. the imposing jail building at plankinton is a reminder that mental health treatment is being offered to young people only after they have entered a system where punishment hangs over their heads. the use of fort sill as a detention facility for migrant children was a reminder that the federal government removes and contains its problem populations, and that the country is dotted with 24 gillian brockell, geronimo and the japanese were imprisoned there. now fort sill will hold migrant children again, sparking protests., wash. post (june 23, 2019), https://www.washingtonpost.com/history/2019/06/12 /geronimo-japanese-were-imprisoned-there-now-fort-sill-will-hold-migrantchildren-again [https://perma.cc/5h9j-uwmp]. 25 id. 26 harjo, supra note 14. 27 rolnick, native youth & juvenile injustice, supra note 17, at 722 n.102. 28 bart pfankuch, aurora plains academy: unsafe place to live, difficult place to work, s.d. news watch (june 5, 2019), https://www.sdnewswatch.org/stories/aurora-plains-academy-unsafe-place-tolive-difficult-place-to-work [https://perma.cc/2jzf-fjb4]; bart pfankuch, investigation: residents suffer physical, mental and sexual abuse at aurora plains mitchell rep. (june 8, 2019), https://www.mitchellrepublic.com/ news/4623167-investigation-residents-suffer-physical-mental-and-sexualabuse-aurora [https://perma.cc/n8de-6rwk]. 820 colum. j. race & l. [vol. 11:811 buildings designed to serve that purpose, whatever they are called. a person observing the buildings over time might understandably have difficulty distinguishing between the prison, the school, and the treatment center. ii. introduction american law, historically, has been a tool of social control specifically directed at fixing, confining, and punishing communities of color. for native girls, at least three separate institutions have functioned this way: education, child welfare, and juvenile delinquency. all these institutions had ostensibly benevolent purposes: to educate, protect, or rehabilitate children, respectively. but all have simultaneously functioned as sites of forced assimilation, removal, discipline, and confinement. this interplay is important in understanding the role of schools, courts, foster care, and secure confinement in addressing the needs of native girls today. the history of native girls and state intervention is also an origin story of the child removal practices that characterize modern child welfare and juvenile delinquency systems and affect all children. this article looks backward in order to look forward. its ultimate conclusion is that modern education, child welfare, and delinquency systems cannot help native girls unless they are fundamentally remade. looking backward, it focuses on the historical period between the late 1800s and mid-1900s—a period in which indian boarding schools, federal and state jurisdiction, juvenile courts, and state child welfare systems were created or expanded. it foregrounds the gendered nature of state interventions29 in these areas and reveals how governmental power over children has been used to enforce gendered and racial hierarchies. 29 child welfare, in particular, has been a site of gendered control over mothers. see e.g., laura briggs, taking children: a history of american terror (2020) (arguing that child-taking has been used to punish women of color for resistance); dorothy e. roberts, shattered bonds: the color of child welfare (2002) (documenting the over-representation of black children in the child welfare system and arguing that this reflects a political choice to address poverty by punishing, rather than aiding, black mothers). in contrast to these texts, i focus here on how it has also functioned to control daughters. 2021] assimilation, removal, discipline 821 this article discusses the experiences of native children, focusing specifically on girls whenever possible.30 centering the analysis on girls reveals the interrelationship between race and gender hierarchies in state and federal approaches to children. this dynamic is not unique to native girls, but focusing on their experiences most clearly reveals the way the systems work. the article takes an intersectional approach in order to highlight intersecting systems of oppression, “conceptualizing native gender oppression as inextricably linked to settler colonialism and western imperialism.”31 as kimberlé crenshaw has written, if we begin by “addressing the needs and problems of those who are most disadvantaged and with restructuring and remaking the world where necessary, then others who are singularly disadvantaged would also benefit.”32 accounts of delinquency, in particular, typically follow an additive approach that begins with white boys, then engages in endless tweaks to theory and policy to account for the continued inequality of anyone whose experience differs. instead, this article employs an intersectional approach by centering multiply marginalized people (here, native girls) when examining a system (here, child welfare and delinquency) to identify insights, criticisms, and proposals that benefit everyone.33 intersectionality theory is also important for understanding how the experiences of native girls (and native children more generally) should be understood within the larger 30 information on native children’s experiences is limited, and much of the existing research does not differentiate among genders. 31 sarah deer, (en)gendering indian law: indigenous feminist legal theory in the united states, 31 yale j. l. & feminism 1, 6 (2019). 32 kimberlé crenshaw, demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics, 1989 u. chi. l. f. 139, 167. 33 see angela harris & zeus leonardo, intersectionality, race-gender subordination, and education, 42 rev. res. in ed. 1 (2018). a similar approach was advocated by mari matsuda in her article looking to the bottom, which suggests assessing law and policy by attending to the voices of those at “the bottom” who are most impacted by it. mari matsuda, looking to the bottom: critical legal studies and reparations, 22 harv. c.r.-c.l. l. rev. 323 (1987). while i do not wish to suggest there is one “bottom” of youth policy, native girls have certainly borne its weight disproportionately. 822 colum. j. race & l. [vol. 11:811 conversation about child welfare and juvenile justice.34 by providing a detailed picture of exactly how those themes were enacted upon native girls, and how native nations have responded, this piece underscores at least two important distinctions between native girls’ experience and that of other children. first, assimilation was an explicit goal of these systems for native girls. second, native nations were, and continue to be, uniquely positioned to reimagine child welfare and juvenile justice because they operate independent justice systems recognized by federal and state courts. by identifying shared experiences, as well as specificities, intersectional analyses of subordination can facilitate coalitions between groups and strengthen those coalitions by highlighting differences between them.35 using the experiences of native girls, this article uncovers themes of state control that will resonate for many other children of color, including the method of separating children of color from their communities as a way to control them and the way that control includes gender-specific indoctrination. the history of native girls’ involvement with federal and state government interventions clearly shows how the various systems that affect children are interchangeable. despite the distinct histories and different purposes of the education, child welfare, and juvenile systems, these institutions were simply differently styled mechanisms of assimilation, removal, discipline, and confinement for native youth. overlap between these separate systems is sometimes framed as a new problem, as in discussions about the school-to-prison pipeline,36 the 34 the historical portion of this essay discusses education because of the centrality of the school model as the original vehicle for state intervention into the lives of native youth. for native youth, schools are the precursors to modern delinquency and child welfare courts as much as they are the precursors to modern schools. because it is primary intended as a critique of the modern child welfare and delinquency systems, this essay does not focus on contemporary education policy; undoubtedly, a similar essay could be written about the present-day education system. 35 devon w. carbado et al., intersectionality: mapping the movements of a theory, 10 dubois rev. 303, 305–06 (2012); dorothy e. roberts & sudatha jesudeson, movement intersectionality: the case of race, gender, disability, and genetic technologies, 10 dubois review 313, 315–16 (2012). 36 see, e.g., monique w. morris, race, gender, and the school-toprison pipeline: expanding our discussion to include black girls, african american policy forum 2 (2012). 2021] assimilation, removal, discipline 823 punitive turn in child welfare,37 or the criminalization of welfare.38 for native children, there has never been a noticeable difference between the systems. government interventions have been remade and renamed several times, but the central purpose—to assimilate native children—has changed little. this consistency of purpose is evident in the physical buildings themselves, some of which have been recycled from prisons to schools to prisons, and back to schools again. the fact that these structures remain, even as governments have formally rejected their origins, speaks to a failure of memory and a failure of imagination. this article directly counteracts the failure of memory by demonstrating that what we imagine today as benevolent, helpful systems originated as ways to control, eradicate, or confine disfavored populations. looking forward, this article addresses the failure of imagination. most people have come to expect, without question, that government intervention is necessary to educate, protect, and rehabilitate children. even when the focus of these systems shifts nominally to helping parents and children and reunifying families, it is assumed that punitive threats of child removal and/or confinement will be necessary to force some parents and children to comply. these assumptions are obviously problematic when applied to native girls today. academics and policymakers have highlighted the role of personal and intergenerational trauma in creating the conditions that disrupt education and call for child welfare and juvenile delinquency intervention.39 yet, proposals for addressing this trauma are still linked to the existing punitive systems. why, if the core issue is trauma caused by past violent policies, should we fix it by sending girls back into the systems that created (and recreate) that violence? there is no one answer to the question of exactly how to re-envision (or even replace) these systems. to raise the possibility of transformation, this 37 see, e.g., dorothy e. roberts, prison, foster care, and the systemic punishment of black mothers, 59 ucla l. rev. 1474, 1478 (2012). 38 see, e.g., kaaryn s. gustafson, cheating welfare: public assistance and the criminalization of poverty (2011) (documenting how modern welfare rules subject poor people to surveillance and regulation, treats them as presumptive criminals, and leads to entanglement in the criminal justice system). 39 see addie c. rolnick, resilience and native girls: a critique, 2018 byu l. rev. 1407, 1415–16. 824 colum. j. race & l. [vol. 11:811 article briefly considers how some tribal courts have structured their child welfare and delinquency systems using traditional ideas about child-rearing, discipline, and communal responsibility. iii. assimilation, removal, discipline, and confinement: boarding schools, courts, reformatories, and foster parents modern child welfare and juvenile courts were established during the late 1800s and early 1900s—the same period that assimilationist boarding schools were a centerpiece of indian policy. these systems began as ways for white upper-class reformers to protect and retrain poor and minority children, first through private organizations, and eventually through state government systems. while assimilation was not the formal goal, this goal was assimilative in nature, and the key mechanisms used were removal and confinement. early houses of refuge and training schools for children were subject to minimal judicial oversight, allowing caretakers to experiment with discipline, physical punishment, isolation, manual labor, and even resettlement of children in other communities.40 for native youth, it is significant that the dominant policy approaches to both misbehaving children and native people in late 1800s and early 1900s favored removing children from home, sending them far away, and subjecting them to programming intended to mold them into raceand gender-specific roles. child welfare and delinquency systems underwent significant formalization in the mid-1900s. also in the 1950s, congress again embarked on a campaign to dismantle tribal sovereignty and to end the separate political status of native nations and the special tribal-federal relationship. one of the primary tools of the termination era was the delegation of civil and criminal jurisdiction on reservations to a handful of states, 40 by separating juvenile courts from adult criminal courts, juvenile delinquency professionals gained very broad authority about which children they could sweep into the system and how to treat them once there, including: the type of programming, whether to lock children up, whether and when to employ physical punishment, how long to keep them in the system, and whether and when to use delinquent children as labor. see rolnick, untangling the web, supra note 18, at 72 (describing experimentation and lack of oversight in early juvenile institutions). 2021] assimilation, removal, discipline 825 effectively handing over federal responsibility for law enforcement to those states. while there is no evidence that increased state power in indian country improved reservation public safety, it opened state courts, jails, and prisons to a new population of indian country offenders, including juveniles. during the same period, native children were also being removed from their communities via state child welfare workers, foster care, and adoption. child welfare removal—the heir to federal boarding school policy—was premised on the same assumption that native families and communities were dysfunctional. by this logic of dysfunction, leaving children in the custody of their parents, or even their extended families and communities, would cause harm so severe that child welfare intervention was needed. as more and more native children came under state jurisdiction through dependency or delinquency courts, they experienced removal and confinement at extraordinarily high rates. drawing from government documents and youth narratives, this part highlights the themes of assimilation, removal, discipline, and confinement across multiple institutions. the goal of these institutions, described in section a, was to assimilate. federally run boarding schools were the centerpiece of the u.s. government’s efforts to forcibly assimilate native people.41 boarding schools were an entry portal for native children into government systems, but the schools interacted with criminal courts, juvenile courts, and child welfare institutions—institutions that had assimilative tendencies of their own. over time, these institutions continued the work of assimilating native children even after the formal policy of assimilation was rejected. the primary means through which government actors accomplished the goal of assimilation was through removal, discussed in section b. because the goal of assimilation was to eliminate native peoples by changing native individuals,42 the first step in changing children was to remove them from their families and communities. this removal usually happened under circumstances that scared children and parents; it is frequently described as kidnapping. finally, as described in 41 see generally andrew woolford, this benevolent experiment: indigenous boarding schools, genocide, and redress in canada and the united states (2016) (comparative examination of u.s. and canadian boarding schools that situates them as the primary means by which governments carried out assimilation policies). 42 wolfe, supra note 7, at 397. 826 colum. j. race & l. [vol. 11:811 section c, assimilation policy relied on discipline and physical and architectural confinement in order to counter children’s resistance. once children were in these institutions, the formal curriculum was supplemented by rigid discipline, including everyday practices and egregious abuse. locks, transfers, and recapture were used to confine the children when they tried to escape. a. solving “the indian problem”: erasure through assimilation the boarding school heyday spanned from the late 19th century to the mid-20th century. congress ended the policy of making treaties with indian tribes in 1871, putting new emphasis on legislation geared toward civilization and assimilation. the goal of the policy included detribalization through the division of communally held tribal land43 and indoctrination into a western, capitalist way of life through individualized property ownership.44 the federal government established a policy that native children should be removed from their homes and placed in church or government-run boarding schools. thousands of children were institutionalized in government-run schools, often far from their families.45 boarding schools introduced the american educational, child welfare, and 43 the indian general allotment act of 1887, ch. 119, 24 stat. 388 (1887) (codified as amended in scattered sections of 25 u.s.c.), authorized a policy of allotting tribal lands. 44 tribal land holdings were broken up into individual allotments, which allowed for “surplus” lands to be made available for sale to white settlers and facilitated a transition for native people to the american system of individual property ownership and agricultural land use. the allotment and assimilation era lasted from approximately 1871 until 1934. christine bolt, american indian policy and american reform: case studies of the campaign to assimilate the american indians 95–97 (1987) (discussing government policies and programs to assimilate indians). see generally robert n. clinton et al., american indian law: native nations and the federal system 30–36 (2005); cohen’s handbook of federal indian law § 1.04 (giving 1928 as end of allotment and assimilation era); addie c. rolnick, the promise of mancari: indian political rights as racial remedy, 86 n.y.u. l. rev. 959, 980 n.96 (2011) (describing assimilation policy). 45 margaret d. jacobs, remembering the “forgotten child”: the american indian child welfare crisis of the 1960s and 1970s, 37 am. indian q. 136, 139 (2013) [hereinafter jacobs, remembering]. 2021] assimilation, removal, discipline 827 juvenile justice systems to native children as brutal instruments of acculturation designed to produce subservient americans.46 the goal was to “civilize” native children by forcing them to adopt the norms of christian anglo-american culture.47 children were often sent hundreds or thousands of miles away from their homes in order to separate them from the traditional practices of their people. once they arrived, children were punished for speaking their languages and engaging in nonchristian spiritual practices. native children were forced to cut their hair and were punished for speaking native languages.48 the assimilation program was gendered. margaret jacobs describes the entire endeavor as “steeped in victorian gender ideals” and explains that assimilation policy “imagined the assimilated indian mother and the reconstituted indian family” as essential for civilization.49 thus, while assimilation was encouraged generally, girls at the schools were encouraged to accept a subservient role. katrina paxton describes a separate curriculum for girls at the sherman institute.50 although some american women at the time pursued professional lives, native girls were trained to accept a specific version of womanhood. they were taught domestic labor skills and discouraged from 46 see margaret d. jacobs, a generation removed: the fostering and adoption of indigenous children in the postwar world xxxi (2014) (referring to the use of “military force to wrest children away” from their parents and “military-style regimens” and “manual labor” as instruments of acculturation within the schools). 47 see generally helen m. bannan, the idea of civilization and american indian policy reformers in the 1880s, 1 j. am. culture 787 (2004) (discussing 1880s policy reformers’ focus on “civilizing” indians). 48 see generally bolt, supra note 44; k. tsianina lomawaima, they called it prairie light: the story of chilocco indian school (1994) (relating indian experience of assimilation through boarding school program); margaret connell szasz, education and the american indian: the road to self-determination since 1928 (1999) (discussing educational programs as a vehicle for assimilation of indians). see also patrick gerald eagle staff, settler colonial curriculum in carlisle boarding school: a historical and personal qualitative research study 117–18 (ph.d. dissertation, portland state university) (2020) (proquest) (describing the role of haircutting in the assimilation curriculum). 49 jacobs, remembering, supra note 45, at 139. 50 katrina a. paxton, learning gender: female students at the sherman institute, 1907–1925, in boarding school blues: revisiting american indian educational experiences 174–86 (trafzer et al., eds., 2006) (discussing gendered nature of the training and indoctrination experienced by native youth). 828 colum. j. race & l. [vol. 11:811 other pursuits, leading to more limited opportunities than were available to boys.51 this gendered vision of assimilation had racial and religious overtones: pratt believed that black people and native people were best suited to a second-class version of americanness52 and boarding schools impressed a protestant vision of womanhood upon girls who attended the schools.53 native people were not u.s. citizens until 1924, but individuals were granted u.s. citizenship, usually in exchange for accepting allotments and agreeing to adopt an agricultural lifestyle. in these instances, u.s. officials administered an oath of citizenship that was different for men and women. whereas men were told to exchange their bows and arrows for plows, women were handed a purse and told, “this means you have chosen the life of the white woman—and the white woman loves her home. the family and the home are the foundation of our civilization. upon the character and the industry of the mother and homemaker largely depends the future of our nation.”54 one of the federal government’s other major tools of assimilation and control over native people during this period was criminal law. the federal government used criminal jurisdiction to reeducate and control native people and to remake indigenous ideas about justice. in 1885, the major crimes act extended—for the first time—federal court jurisdiction over certain crimes committed by indians against other indians on reservations.55 the push for federal jurisdiction came primarily from federal indian agents, who argued that traditional justice 51 id. 52 hayes, supra note 5, at 2. 53 paxton, supra note 50. 54 see nicole montclair donaghy, the new assimilated american, lrinspire (apr. 28, 2016) https://lrinspire.com/2016/04/28/the-new-assimilatedamerican-by-nicole-montclair-donaghy [https://perma.cc/nx6m-b32s] (reproducing ritual on admission of indians to full american citizenship); jared farmer, last arrow ceremony, jared farmer blog https://jaredfarmer.net/curios/last-arrow-ceremony [https://perma.cc/n4sszja2] (describing citizenship ceremony). see also gloria valencia-weber, racial equality: old and new strains and american indians, 80 notre dame l. rev. 333, 334 (2004) (describing men’s and women’s naturalization ceremonies). 55 18 u.s.c. § 1153 (2006). see sidney l. haring, the distorted history that gave rise to the “so called” plenary power doctrine: the story of kagama v. united states, in indian law stories 149, 150 (carole goldberg et al. eds., 2011). https://lrinspire.com/2016/04/28/the-new-assimilated-american-by-nicole-montclair-donaghy https://lrinspire.com/2016/04/28/the-new-assimilated-american-by-nicole-montclair-donaghy 2021] assimilation, removal, discipline 829 systems were incapable of handling serious crimes in a manner that settlers would recognize as real justice.56 for example, in the case immediately preceding enactment of the law, the brule lakota council addressed a murder by ordering restitution, an outcome indian agents and settlers viewed as insufficiently punitive.57 the federal government also supplanted traditional justice systems by addressing less serious crime in local administrative courts. called cfr courts, these courts implemented a federal code of indian offenses that prohibited cultural and religious activities as well as basic lifestyle choices.58 when a woman arrested for adultery and convicted in a cfr court argued that department of the interior lacked authority to define offenses or try and punish offenders, a federal court upheld the constitutionality of cfr courts on the theory that criminal punishment was merely being used as a teaching tool, further blurring the line between punishment and education in federal indian policy. the court described them as “mere disciplinary and educational instrumentalities” and pointed out that the reservation itself “is in the nature of a school” that gathers indians “under the charge of an agent, for the purpose of acquiring the habits, ideas, and aspirations which distinguish the civilized from the uncivilized man.”59 while rehabilitation is 56 see generally sidney l. harring, crow dog’s case: american indian sovereignty, tribal law, and united states law in the nineteenth century (1994). the supreme court had already signaled that they did not regard native nations’ justice systems as real criminal systems when it held that a white cherokee citizen could be prosecuted in federal court under federal enclave laws that exempted crimes between indians. the court viewed federal jurisdiction as necessary to “preserve the peace” and shield indians from “mischievous and dangerous” settlers, never mind that the cherokee authorities had arrested the defendant and expected to try him for his crime. bethany berger, power over this unfortunate race: race, politics and indian law in united states v. rogers, 45 wm. & mary l. rev. 1957, 1969, 1984–85 (2004). 57 see ex parte crow dog, 109 u.s. 556 (1883). on the other hand, the supreme court had also reviewed a cherokee sentence of death for murder. see talton v. mayes, 163 u.s. 376 (1896). 58 see luana ross, inventing the savage: the social construction of native american criminality 18, 41–45 (1998) (describing how the codes criminalized religious activities, plural marriage, and the practices of medicine people as well as the use of more typical criminal laws to punish acts of resistance by native people against settlers). 59 see united states v. clapox, 35 f. 575, 577 (d.c. ore. 1888) (holding that these “cfr courts” did not violate article i of the u.s. constitution). 830 colum. j. race & l. [vol. 11:811 one of several justifications for criminal punishment in american law, it is arguably the most important reason for criminal punishment of native people in the united states. the version of rehabilitation experienced by native people bears more resemblance to the quaker idea of moral reeducation than it does to more modern concepts of counseling and job skills. like the cfr courts, boarding schools focused on changing individual native people by remaking their cultural, religious, linguistic, and familial identities until they resembled white americans. boarding schools, though, were the favored instrument of assimilation because they worked their experiment on children, who were seen as more malleable. the boarding school philosophy linked the idea of rehabilitation with the practices of removal, education, and punishment. boarding schools flourished during the same period that states were exploring methods to contain, control and reform poor children in cities through houses of refuge60 and later juvenile courts.61 the dominant policy approaches to both misbehaving children and native people in late 1800s favored removing children from home, sending them far away, and subjecting them to a curriculum of reprogramming.62 although they were denominated schools, boarding schools were in this sense not much different from the nascent juvenile delinquency system.63 the “child savers,” who viewed crime as a result of incomplete moral and social development, shared a goal of 60 ex parte crouse, 4 whart. 9, 11 (pa. 1839) (describing houses of refuge as “schools” but upholding their use as prisons for “juvenile convicts”). 61 see generally david s. tanenhaus, juvenile justice in the making 4 (2004) (tracing the movement to create separate juvenile courts to the 1888 efforts of lucy flowers); david l. parry, essential readings in juvenile justice 41–42 (2005). 62 michael grossberg, changing conceptions of child welfare in the united states, 1820–1935, in a century of juvenile justice 3–4, 17 (michael rosenheim et al. eds., 2002). 63 while children in cities were sent to training schools because they were deemed dependent or delinquent, native children sent to boarding schools were deemed deficient solely on the basis of their indianness. the doctrine of parens patriae was not necessary to intervene in the lives of native children because the legal status of american indians is premised in part on the wardguardian relationship, in which the federal government functions as a guardian vis-a-vis its indian wards. although narrowly interpreted in its earliest iterations, and more limited today, this doctrine was broadly construed in the late 19th and early 10th century to justify massive intrusions into the lives of native people, most in the name of assimilation. 2021] assimilation, removal, discipline 831 rescuing and rehabilitating poor and minority children.64 each institution touted a rehabilitative goal in which the exercise of control over children was employed as a method of controlling a disfavored population. this theme of solving the problem posed by the existence of an entire group of people by controlling and remaking their children also spurred the high rates of adoption and foster care placement experienced by native children from the 1950s through the 1970s and beyond.65 again, the high point for child removal coincided with the dominance of a policy approach focused on eradicating separate native communities by encouraging the physical, cultural, and political transformation of reservation-based native nations into individual americans.66 congress again embarked on a campaign to dismantle tribal sovereignty and to end the separate political status of tribes and the special tribal-federal relationship, but this time it used state power, rather than federal power. this federal-to-state shift occurred in two areas significant to state control over children: child welfare and criminal/juvenile jurisdiction. congress passed laws that effectively handed over federal responsibility for law enforcement to some states.67 congress formally terminated its government 64 see generally anthony platt, the child savers: the invention of delinquency 15–100 (2009). platt’s study emphasized the paternalistic roots of the child saving movement, noting that it “was essentially a middle-class movement, launched by the ‘leisure class’ on behalf of those less fortunately placed in the social order.” id. at 77. during this same period, federal indian policy focused explicitly on “saving” indian people, and a central tool of this was a network of federally sponsored boarding schools for native children. 65 in her forthcoming memoir, wenona singel describes two distinct waves of adoption. wenona singel, five generations removed: a memoir of indian child removal in michigan (forthcoming). 66 this period, called the termination era, lasted from approximately 1940 until 1962. see generally carole goldberg et al., american indian law: native natives and the federal system 33–35 (7th ed. 2015); cohen’s handbook of federal indian law, § 1.06 (discussing termination era from 1943 to 1961). 67 pub. l. no. 83-280, 67 stat. 588 (1953) (codified at 25 u.s.c. §§ 1162, 1360, 1321 (2006)). public law 280 automatically transferred indian country jurisdiction to six states and permitted other states voluntarily to assume jurisdiction over indian country within the state. the mandatory states were alaska, california, minnesota (except the red lake reservation), nebraska, oregon (except the warm springs reservation), and wisconsin. see carole 832 colum. j. race & l. [vol. 11:811 to-government relationship with specific native nations, leaving the citizens of those nations subject to state power on the same terms as any other people.68 a corollary federal relocation program was also established to move indian people from reservations to urban areas.69 the justifications for state control were not as transparently assimilationist as were the justifications for federal power during the late nineteenth century. instead, state power was viewed as necessary to protect and control reservation populations.70 finally, the bureau of indian affairs (bia) worked with private groups and state child welfare agencies to facilitate the removal and adoption of native children.71 this was, in some sense, just a different approach to financing the same goal of assimilation. as jacobs explains, “the b.i.a. longed to terminate the responsibilities it had taken over for the care of indian children by privatizing its earlier child removal policies.”72 indian boarding schools still existed, but the federal government had come to see them as a financial burden better passed on to the goldberg-ambrose, planting tail feathers: tribal survival and public law 280 (1997) (discussing shifts in state and federal jurisdiction over tribal lands under public law 280). states voluntarily accepting jurisdiction over some or all reservations pursuant to § 1321 were arizona, florida, idaho, iowa, montana, nevada, north dakota, south dakota, utah, and washington. in the voluntary states, the exact scope of state jurisdiction is defined by state statute, but delinquency and child welfare were popular areas for state jurisdiction. see, e.g., rev. code of wash. 37.12.010 (accepting jurisdiction over delinquency, dependency and adoption matters). 68 h.r. con. res. 108, 83rd cong. (1953) (urging termination of federal relationship with certain tribes “at the earliest possible time”); charles f. wilkinson & eric r. biggs, the evolution of termination policy, 5 am. indian l. rev. 139, 151 (1977) (listing individual acts). 69 the relocation program began in 1931 as a voluntary program to move returning veterans to cities, but by the 1950s, relocation of reservation residents to urban areas had become the bureau of indian affairs’ highest priority, resulting in a withdrawal of funding from other priorities. participants received limited federal assistance—usually a one-way ticket and a subsistence allowance until they received their first paycheck. once relocated, they were cut off from the federal services that had been available on reservations. the transition was financially and personally difficult, and many people eventually returned to reservations. see generally donald f. fixico, termination and relocation: federal indian policy, 1945–1960 (1986) (examining motives for enactment and effects of relocation program on native people). 70 see h.r. rep. no. 848, 83rd cong., 1st sess. 5–6 (1963). 71 terry l. cross, child welfare in indian country: a story of painful removals, 33 health affairs 2256 (2014). 72 jacobs, remembering, supra note 45, at 153. 2021] assimilation, removal, discipline 833 states, like federal criminal law enforcement on reservations. private and religious organizations advocated in favor of adoption as a benefit for native children, but their advocacy was connected to the longstanding idea of how to solve the “indian problem”—now recast as the burden native communities placed on federal resources. arnold lyslo, a former bureau employee who went on to head the indian adoption project, framed the project as a financial benefit: it has been apparent for some time, from the reports of the area and agency welfare state of the b.i.a., that many children who might have been firmly established in secure homes at an early age through adoption, have been passed from family to family on a reservation or have spent years at public expense in federal boarding schools or in foster care.73 state child welfare systems negotiated with federal officials about the terms upon which they would incorporate native children into their foster care systems. for example, minnesota reported to federal officials on the likely cost of caring for native children, asking for more federal money and comparing foster care costs to the costs the federal government would save by closing a boarding school.74 state officials explained the high proportion of native children in need of foster care by noting that “[many] social, economic, and other factors contribute to the high incidence of hopeless family breakdown among indians in minnesota today.”75 as to why specific children had been placed in foster care, the report cited “three major problems . . . born out of wedlock, neglected or improperly supervised, or home situation otherwise unsatisfactory.”76 proponents of the foster care solution were thus able to cite vague factors like “neglect” and “family breakdown” to explain the influx of native children while obscuring the role of federal policy 73 id. 74 minnesota legislative interim committee on indian affairs, statement prepared for senate committee on organization for dep’t of the interior, mar. 1957, at 3–4. 75 minnesota dep’t of public welfare, foster care of indian children, mar. 15, 1957, at 1. 76 id., at 6. 834 colum. j. race & l. [vol. 11:811 in instigating that breakdown and the way the foster care influx also benefitted the private adoption industry. by the 1950s, child removal was no longer animated by an express intent to annihilate indigenous cultures and undermine group social and political cohesion. however, it was still premised on the assumption that native families and communities were dysfunctional.77 the rhetoric of child protection also camouflaged a governmental investment in white families as superior and the use of child placement as a tool of assimilation.78 the role of assimilation in foster care policy is 77 laura briggs, somebody’s children: the politics of transracial and transnational adoption 7–8 (2012) (“american indian children, like african american children, became targets for child welfare removals after they began receiving state-financed welfare assistance in large numbers.”). see also jacobs, remembering, supra note 45, at 148 (describing representations of indian families as chronically dysfunctional and recounting the story of a visitor who took children and alleged that the mother was alcoholic); bethany berger, in the name of the child: race, gender & economics, as reprinted in adoptive couple v. baby girl, 67 fla. l. rev. 295, 343–45; brian d. gallagher, indian child welfare act of 1978: the congressional foray into the adoption process, 15 n. ill. u. l. rev. 81, 85 (1994) (“congress was especially critical of the general standards employed by the child welfare system in determining the necessity of intervention. one survey cited found that ninetynine percent of the cases involving the removal of indian children from their families were predicated ‘on such vague grounds as ‘neglect’ or ‘social deprivation’ and on allegations of the emotional damage the children were subjected to by living with their parents.’ congress was altogether dismayed at the lack of understanding non-indian child welfare workers had of indian family society.”). systematic removal of indian children is not only a relic of the past; south dakota child welfare officials were recently found to have adopted procedures facilitating easy removal of indian children from their homes, violating the indian child welfare act and denying indian parents their rights to due process prior to removal. see oglala sioux tribe v. van hunnik, 100 f. supp. 3d 749, 754, 773 (d.s.d. 2015) (granting partial summary judgment), judgment vacated by oglala sioux tribe v. fleming, 904 f.3d 603 (8th cir. 2018) (holding that district court should have exercised younger abstention and dismissed). 78 cross, supra note 71; gallagher, supra note 77, at 85 n.27 (quoting h.r. rep. no. 95-1386, 10 (1978)) (“indian communities are often shocked to learn that parents they regard as excellent caregivers have been judged unfit by non-indian social workers . . . . for example, the dynamics of indian extended families are largely misunderstood. an indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. many social workers, untutored in the ways of indian family life or assuming them to be socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect and thus as grounds for 2021] assimilation, removal, discipline 835 revealed in anecdotes: for example, one veteran of the maine foster care system described being encouraged by foster parents to pass as white.79 b. severing ties between children, families, and nations: removal as the mechanism for assimilation narratives of kidnapping and loss are central to the history of indian boarding schools: parents were sometimes forced or coerced into giving up their children, who were sent to far away schools and not permitted to return home for long periods of time.80 boarding school narratives in history and literature often begin with allusions to kidnapping or stories of government raids. while some parents voluntarily sent their children to boarding school, many resisted, and their children were taken by force. the people of old oraibi, a hopi village, split into two factions when one group refused to cooperate with assimilation plans, including mandatory schooling. the non-cooperative group, called the hostiles, were ejected from the village. the superintendent tried to convince the hostile families to send their children to school, but the fathers refused, and seventy-five men were arrested and sentenced to ninety days hard labor. helen sekaquaptewa, a hopi woman, describes the day the children were rounded up. terminating parental rights. because in some communities the social workers have, in a sense, become a part of the extended family, parents will sometimes turn to the welfare department for temporary care of their children, failing to realize that their action is perceived quite differently by non-indians.”). see also margaret howard, transracial adoption: analysis of the best interests standard, 59 notre dame l. rev. 503, 520 (1984) (describing the role of biases and misunderstandings in facilitating removal of indian children). 79 me. wabanaki-state child welfare truth & reconciliation commission, beyond the mandate: continuing the conversation 22–23 (2015), https://d3n8a8pro7vhmx.cloudfront.net/mainewabanakireach/pages/17/ attachments/original/1468974047/trc-report-expanded_july2015.pdf [https://perma.cc/zj8e-29xn]. 80 see kenneth lincoln, native american renaissance (1985) (referring to stories of kidnapping); ann murray haag, the indian boarding school era and its continuing impact on tribal families and the provision of government services, 43 tulsa l. rev. 149, 150–55 (2007) (detailing a history of government boarding schools for indian children); maureen smith, forever changed: boarding school narratives of american indian identity in the u.s. and canada, 2 indigenous nations stud. j. 57 (2001) (analyzing boarding school narratives). 836 colum. j. race & l. [vol. 11:811 very early one morning toward the end of october, 1906, we awoke to find our camp surrounded by troops who had came during the night from keams canyon. superintendent lemmon called the men together, ordering the women and children to remain in their separate family groups. he told the men it was a mistake to follow yokeoma blindly; that the government had reached the limit of its patience; that the children would have to go to school. yokeoma angrily defied them and refused to yield. he was taken to a house and put under guard. all the children of school age were lined up and registered to be taken to school . . . we were taken to the schoolhouse in new oraibi, with military escort.81 hostile children were not allowed to leave the school in the summer because their families would not agree to send them back in the fall.82 helen saw her mother only twice during her four-year tenure at the keams canyon school. the conflict between the hostiles and the superintendent was an especially dramatic example, but the idea of captured children is common among native peoples. kootenay parents hid their children from government agents.83 navajo elders told of a time when agents would “come through and steal the children.” they told of children being kidnapped from their hogans or captured while they were out herding sheep. navajo leaders had signed a treaty with an education clause, never imagining the form such education would take. boarding school recruitment was so much like theft that one navajo father shot an agent for trying to steal his son.84 in leslie marmon silko’s story lullaby, a navajo mother fled with her children as soon as she realized the agents meant to take them: “ayah ran with the baby toward danny; she screamed for him to run and then she grabbed him 81 helen sekaquaptewa me and mine: the life story of helen sekaquaptewa, as told to louise udall 91–92 (1969). 82 id. at 98–99. 83 janet campbell hale, the only good indian, in reinventing the enemy’s language 123, 141 (joy harjo & gloria bird et al. eds., 1997). 84 berenice levchuk, leaving home for carlisle indian school, in reinventing the enemy’s language, supra note 83, at 176, 179. 2021] assimilation, removal, discipline 837 around his chest and carried him too. she ran south to the foothills of juniper trees and black lava rock.”85 later generations of boarding school students were not literally “taken” by the government, but many schools retained their reputations as dreaded places where bad children were sent. in his memoir, basil johnston describes a 1940s-era boarding school: “the word or the name ‘spanish’ might seem to be no more filled with menace than any other word, but it inspired dread from the very first time we indian boys heard it.”86 mary brave bird (formerly known as mary crow dog), a lakota woman, is even more explicit in her description of children being taken to school. [i]n the traditional sioux families, especially in those where there is no drinking, the child is never left alone. it is always surrounded by relatives, carried around, enveloped in warmth. it is treated with the respect to due any human being, even a small one. it is seldom forced to do anything against its will, seldom screamed at, and never beaten . . . and then suddenly a bus or car arrives, full of strangers, usually white strangers, who yank the child out of the arms of those who love it, taking it screaming to the boarding school. the only word i can think of for what is done to these children is kidnapping.87 capture or kidnapping as the introduction to boarding school highlights the unwillingness of parents and children to succumb to the schools’ mission to eradicate or change their cultures. government and school officials pathologized tribal cultures and traditions, and boarding schools were seen as a tool to solve the “indian problem.” in the end, many children learned both academic and vocational skills at school, but any benefits remained tainted by the fact that schooling was forced upon them. long after these students had been educated and perhaps returned to their communities, the omnipresent references to kidnapping are a constant reminder of the forced nature of their education. 85 leslie marmon silko, lullaby, in storyteller 43, 45 (1981). 86 basil johnston, indian school days 6 (1995). 87 mary crow dog & richard erdoes, lakota woman 29 (1990). 838 colum. j. race & l. [vol. 11:811 boarding school stories focus not only on the physical experience of being taken, but also on the emotional trauma of forced separation. in lullaby, ayah saw her children only twice after they were taken from her. the first time, her son hid shyly and her daughter did not even recognize her. she hugged them, but the visit did not last long. they visited again that summer, when her daughter looked at her with fear “like she was a spider crawling slowly across the room,” and her son did not remember enough navajo to answer her questions.88 in ayah’s case, the separation was permanent. her children had effectively become strangers, and they never came home again. in the story, the loss of the children estranged ayah from her husband and distanced them both from social supports, ending with the parents freezing to death in a ditch. boarding school not only cut the roots of one generation, it also distanced their parents from family and community ties. mary crow dog views boarding schools as a last-ditch effort before complete extermination of native people. cultural annihilation was used as a substitute for murder, and this annihilation was accomplished by severing ties between children and their parents and communities. children were “taken away from the villages and pueblos, in their blankets and moccasins.” they were kept completely isolated from their families, with no contact allowed for years. when the children returned, some after as long as ten years, they were “caricatures of white people.”89 even their clothing was constricting and unnatural: “their short hair slick with pomade, their necks raw from stiff, high collars, their thick jackets always short in the sleeves and pinching under the arms, their tight patent leather shoes giving them corns, the girls in starched white blouses and clumsy, high-buttoned boots . . . .”90 crow dog tells of a different ending than silko, though. in her story, the children returned to the reservation only to discover that they were in limbo between two worlds. native cultures and white culture had been completely juxtaposed against one another, so that the children were strangers in both worlds. 88 silko, supra note 85, at 48–49. 89 crow dog & erdoes, supra note 87, at 30. 90 id. 2021] assimilation, removal, discipline 839 references to kidnapping and forced separation are more common in stories from the early boarding school era. the underlying sadness of separation, however, is still present in the stories of later generations, whose enrollment in boarding school seemed voluntary on the surface. emma larocque, a cree/metis woman, writes about the wrenching sadness she felt every time the train took her away from her parents after a visit home. “i was leaving a culture, a familiar way of life, for a world that was, initially, foreign, frightening, and, at times, excruciatingly lonely.”91 berenice levchuk, a navajo writer, also remembers “how devastated, frightened, broken-hearted, and lonely i felt when i arrived as a little girl in ft. defiance, arizona.” after nine months working and attending classes, three months at home was too short.92 state foster care systems had a similar disruptive effect, severing the ties between native children and their communities.93 the damaging effect of removal on children was separate from harm caused by abusive practices in foster and adoptive homes, and it was present even in homes that were not abusive. in a brief filed in adoptive couple v. baby girl, the supreme court’s second indian child welfare act case, adults who were adopted before the act’s passage described their “shared sense of alienation and dislocation occasioned by being indian children raised in families and communities apart from their tribes,” an effect “common to those with happy and unhappy adoptive situations alike.”94 the themes of removal and disappearance also surface in literary accounts of foster care. vickie sears’ piece dancer tells the story of a girl who appeared as a foster child. she came from out of nowhere; “they said her tribe was assiniboin, but they weren’t for certain.”95 the girl arrived “all full up with anger and 91 emma larocque, tides, towns, and trains, in reinventing the enemy’s language, supra note 83, at 361, 364 92 levchuk, supra note 84, at 177. 93 see brief for amicus curiae adult pre-icwa indian adoptees supporting birth father and the cherokee nation at 14–20, adoptive couple v. baby girl, 570 u.s. 637 (2013) (no. 12-399). 94 id. at 14 (noting that “[e]ven loving and attentive adoptive parents may sincerely believe thathat they must, in the words of one adoptive parent, ‘kill the indian to save the man.’”). 95 vickie sears, dancer, in talking leaves: contemporary native american short stories 250 (craig lesley & katheryn stavrakis eds., 1991). 840 colum. j. race & l. [vol. 11:811 scaredness” and carried the baggage of her past in the form of vivid, screaming nightmares.96 inez peterson, a quinault woman, writes about how her own family was chopped up by adoption and foster care. eleven siblings were spread out in different homes, beginning with the accidental adoption of one of her brothers. a church couple offered to care for him while her mother was in hospital delivering another baby. “she said yes, signed some papers, and the church people moved out of taholah, off the reservation, out of our lives.”97 her unknown brother was only the first step in the family’s separation. later, she rode in the back seat of a dodge dart, her arms around her little sisters, watching as the social worker dropped off brother after brother at different houses, waiting for her turn to be left behind. similarly, legal scholar wenona singel describes the loss of multiple generations of girls in her family to foster care and adoption.98 boarding school severed an entire generation of native children from their families and communities. when mary brave bird writes about the elders uniting with the younger generation during the genesis of the american indian movement, she notes a conspicuous absence. “not the middle aged adults. they were of a lost generation which had given up all hope, necktie-wearers waiting for the great white father to do for them.”99 beyond their effect on individual children, boarding schools disrupted family structures and intergenerational learning. as jacobs explains, it “normalized indian child removal and undermined the customary socialization of indian children; several generations grew up without learning how to raise children within their own cultural contexts.”100 c. punishing resistance: controlling children through discipline and confinement to supplement the assimilative educational curriculum, boarding school officials used violence, confinement, and outsourcing to control native children once they arrived at the 96 id. 97 inez peterson, missing you, in reinventing the enemy’s language, supra note 83, at 104, 106. 98 singel, supra note 65. 99 mary brave bird, we aim not to please, in reinventing the enemy’s language, supra note 83, at 337, 342. 100 jacobs, remembering, supra note 45, at 149. 2021] assimilation, removal, discipline 841 schools. children experienced sanctioned violence through formal punishment and military-style discipline, and unsanctioned violence through physical and sexual abuse. federal policymakers highlighted this violent discipline as a reason to abandon the assimilationist schools. the 1928 meriam report found that “[t]he discipline in the boarding schools is restrictive rather than developmental. routine institutionalism is almost the invariable characteristic of the indian boarding school.”101 a 1969 report described the school environment as “sterile, impersonal and rigid, with a major emphasis on discipline and punishment, which is deeply resented by the students.”102 this emphasis on discipline is not surprising if one recalls that pratt, who created the boarding school policy, developed his approach after experimenting on apache prisoners of war when he was superintendent of a florida prison.103 children who attended boarding schools have told stories of being physically and mentally abused.104 former students have described harsh disciplinary practices that ranged from the everyday to the grotesque, often far more severe than the way physical discipline was employed at other schools during the same period.105 edith young describes routine assimilationist discipline: “we were yelled at and slapped. in the third grade, i 101 meriam lewis et al., u.s dep’t of health, educ. & welfare, the problem of indian administration 13–14 (1928). 102 comm. on labor & pub. welfare, indian education: a national tragedy—a national challenge, s. rep. no. 91-501, at 64 (1969). 103 hayes, supra note 5, at 2–4; r.l. brunhouse, apprenticeship for civilization: the outing system at the carlisle school, educational outlook, may 1939, at 30, 31 (account of carlisle outing system describing how pratt drew on his experiences at the prison) (account of carlisle outing system describing how pratt drew on his experiences at the prison). see supra notes 5–8. 104 see lincoln, supra note 80, at 21, (referring to stories of kidnapping); haag, supra note 80, at 153–54 (detailing a history of government boarding schools for indian children); maureen smith, supra note 80, at 65–67 (2001) (describing incidents of abuse); gretchen millich, survivors of indian boarding schools tell their stories, wkar news, http://wkar.org/post/ survivors-indian-boarding-schools-tell-their-stories [https://perma.cc/45vwuc3u] (recounting stories of abuse from various schools) (last visited dec. 20, 2017). 105 see native americans file lawsuit against boarding school abuses, voice am. news (oct. 30, 2009) https://www.voanews.com/archive/nativeamericans-file-lawsuit-against-boarding-school-abuses-2003-08-10 [https:// perma.cc/8uqu-awhd] (describing litigants’ claims of physical abuse and neglect in lawsuit against government-sponsored, church-run boarding schools); millich, supra note 104. 842 colum. j. race & l. [vol. 11:811 asked the teacher why she was teaching that columbus discovered america when indians were here first. she came over and slapped me across my face. to be humiliated in front of the class, i’ll never forget that.”106 while not official policy, sexual abuse occurred at boarding schools as well.107 boarding school residents have described how abusive physical discipline (often severe violence in the form of “beatings” and humiliation) was central to the schools’ pedagogical approach and aimed at breaking children’s spirits.108 children resisted forced schooling and harsh discipline, often by running away. school officials responded by confining them in the system, using a creative combination of retrieval, transfer, and outsourcing. children who resisted were labeled incorrigible or difficult. for example, pratt’s letters describe a group of osage boys who were transferred by the carlisle to martinsburg after being labeled incorrigible by the visiting martinsburg superintendent. at martinsburg, they were made to work for farmers. according to news reports, they threatened the superintendent with guns, then ran away after they were disarmed by school officials. pratt, however, disputed the “incorrigible” characterization and characterized the transferred students as “among the best” at carlisle.109 girls were labeled 106 indian school: stories of survival (films media group 2011). 107 see ewa skal, civilization and sexual abuse: selected indian captivity narratives and the indian boarding school experience, 27 crossroads 77, 84–85 (2019) (summarizing stories of sexual assault from boarding school narratives); mending the sacred hoop technical assistance project introductory manual, tracing the path of violence: the boarding school experience 5 (2003), https://www .peerta.acf.hhs.gov/sites/default/files/public/uploaded_files/tracing%20the %20path%20of%20violence.pdf [https://perma.cc/chy4-gx6w] (recounting stories of sexual abuse by boarding school survivors). 108 see patrick gerard eagle staff, settler colonial curriculum in carlisle boarding school: a historical and personal qualitative research study, 121–23 (june 4, 2020) (ed.d. dissertation, portland state university) https://pdxscholar.library.pdx.edu/cgi/viewcontent.cgi?article=6521&context=op en_access_etds [https://perma.cc/d6ab-g9nh] (recounting interviews with boarding school survivors who described physical abuse as “a learning tool”). 109 see letter from r.h. pratt to comm’r of indian affs. (nov. 3, 1885) (on file with author) (avaliable at https://carlisleindian.dickinson.edu). see also letter from superintendent perkins, rice station school, to comm’r of indian affs. (may 5, 1915) (on file with author) (avaliable at https://carlisleindian.dickinson.edu) (listing fifteen boys who “are obedient while 2021] assimilation, removal, discipline 843 troublemakers for behavior that involved resistance or sexuality. for example, ernie newton, superintendent of the phoenix indian school, described what he saw as a need for separate reform schools for boys and girls: two girls, retained as witnesses in a case against a white man, are now in the hospital, one being treated for gonorrhea, the other for gonorrhea and syphilis. another girl, only fifteen, was held on a larceny charge. upon examination, she was found to be mentally defective. a test for gonorrhea, also, showed positive. the grave question now is, what is to be the future of these girls? many of our so-called incorrigibles are really defective, requiring special treatment and training.110 the officials’ descriptions of students reveal the complicated construction of misbehavior and delinquency. the extensive rules and forced separation created the conditions for them to break rules by leaving. for girls, the “troublemaker” label was constructed by viewing individual behaviors through the lens of promiscuity, disease, and “mental defectiveness,” transforming one incident into a permanent status. officials debated what to do with those students deemed incorrigible. initially, they were disciplined in the schools.111 because native children were not allowed to leave the school facilities, the boarding schools essentially operated as detention facilities.112 in some instances, indian schools partnered directly at school, but run away whenever they feel like it and stay until returned by the police. their home surroundings are not calculated to be elevating, as they live in dirt and squalor, under the influence of medicine men and idle members of the tribe. a few will work while away and when they tired of work they quit.”); letter from r.h. pratt to comm’r of indian affs. (mar. 16, 1894) (on file with author) [hereinafter 1894 pratt letter] (avaliable at https://carlisleindian.dickinson.edu) (describing sibbald smith as a discipline problem for running away and persuading others to accompany him). 110 letter from ernie newton to cato sells, comm’r of indian affs. (mar. 15, 1915) (on file with author) (avaliable at https://carlisleindian.dickinson.edu). 111 1894 pratt letter, supra note 109 (recommending that sibbald smith be “continued under carlisle restraint” against the wishes of his mother that he return home). 112 see generally haag, supra note 80. 844 colum. j. race & l. [vol. 11:811 with state-run juvenile reformatories.113 in others, students considered disruptive were sent to specific off-reservation schools.114 some officials suggested designating one or more offreservation boarding schools as reform schools, while others argued that it would be best to send these children to state reform schools.115 to boarding school officials, native families and communities were the biggest obstacles in the assimilation campaign; boarding schools were criticized as unsuccessful because educated children “returned to the blanket.”116 the schools therefore attempted to keep children away from their parents for as long as possible. at carlisle, for example, children came under a “contract,” a promise that they would not return home for three or five years.117 boarding schools, reformatories, and refuge houses—the nineteenth century precursors of schools, juvenile detention facilities, and child welfare—also employed a practice called “outings.” pratt wrote, [t]he outing principle, practised at the reformatory, is by far one of the most hopeful 113 see letter from r.h. pratt to comm’r of indian affs. (jan. 4, 1892) (on file with author) [hereinafter 1892 pratt letter] (avaliable at https://carlisleindian.dickinson.edu) (confirming the process for “getting incorrigible indian youth from the schools into the reformatories of the state”). 114 see letter from r.h. pratt to comm’r of indian affs. (nov. 3, 1885) (on file with author) (avaliable at https://carlisleindian.dickinson.edu) (describing and expressing regret over transfer of students from carlisle to martinsburg). see also letter from o.h. lipps to cato sells, comm’r of indian affs. (mar. 11, 1915) (on file with author) (avaliable at https://carlisleindian.dickinson.edu) (describing carlisle as “a dumping ground for incorrigibles”). 115 letter from o.h. lipps to cato sells, comm’r of indian affs. (feb. 17, 1915) (on file with author) (avaliable at https://carlisleindian.dickinson.edu) (advocating for conversion of one federal boarding school into a reform school); letter from cato sells, comm’r of indian affs., to o.h. lipps (mar. 1915) (on file with author) (avaliable at https://carlisleindian.dickinson.edu) (describing practical difficulty of creating an indian reform school and suggesting sending children who violate state law could to state reform schools and handling others “beyond out easy control” through “a very high order of discipline” within the school or by sending them home); letter from r.h. pratt to mr. francis (mar. 20, 1915) (on file with author) (avaliable at https://carlisleindian.dickinson.edu) (advocating for use of state reform schools). 116 szasz, supra note 48, at 10. 117 levchuk, supra note 84, at 182. https://carlisleindian.dickinson.edu/ https://carlisleindian.dickinson.edu/ https://carlisleindian.dickinson.edu/ 2021] assimilation, removal, discipline 845 features. i may also add that recently there has sprung up in the state the system of taking children from alms-houses and placing them in country homes, and this promises to be a most advantageous method of decreasing pauperism. both alms-house outing and the reformatory outing have sprung since we have made such success.118 this practice of loaning children out to live and work in the homes of rural families was part of the reform practices of early juvenile delinquency institutions.119 the philosophies of all these institutions linked the idea of rehabilitation with the practices of removal, education, and punishment.120 boys were placed on farms or in places where could “learn trades,” while girls were “placed in homes where they could learn the duties of the household.”121 although conceived by pratt as a reward, the outing system at carlisle also served the school’s overall assimilation goals and can thus be understood to serve a disciplinary function, as it did at the reformatories pratt modeled it after.122 by placing children in private homes as a way to assimilate them, the outing system practiced by the boarding schools was also a direct progenitor of foster homes as tools of assimilation. native adults who spent time in state foster care systems during the 1950s–1970s describe experiences of punishment and abuse that differ little from early boarding school accounts. the maine wabanaki-state child welfare truth and reconciliation commission highlighted accounts of mistreatment of native youth in the maine child welfare system. one person described punishment ranging from being locked in 118 1892 pratt letter, supra note 113 (describing agreement to send carlisle students to pennsylvania reformatory for “violation of the laws of the state of pennsylvania”). 119 parry, supra note 61, at 42; grossberg, supra note 62, at 201–21 (describing the practice of sending east coast offenders to live with families in the midwest). 120 brunhouse, supra note 103, at 1 (explaining pratt’s belief that “indian boys and girls should have an opportunity to live in private homes for a period of time in order to gain practical experience in self-support and to learn the ways of civilized living”). 121 id. at 4. 122 id. at 4–6. 846 colum. j. race & l. [vol. 11:811 an attic to being submerged in a tub of icy water.123 another described a foster parent washing their mouth out with soap for speaking their native language.124 congress has explicitly rejected its goal of indian assimilation and has acted to reverse its legacy when it comes to tribal criminal justice systems, child welfare, and education. since 1968, congress has affirmed and expanded tribal courts’ inherent criminal jurisdiction.125 congress has also reiterated the federal government’s commitment to protecting tribal sovereignty, recognized the importance of tribal courts to sovereignty, and directed significant fiscal and administrative resources toward supporting the very tribal justice systems that the federal government had previously and actively sought to dismantle.126 perhaps the most direct rejection of assimilation 123 me. wabanaki-state child welfare truth & reconciliation comm’n, supra note 79, at 22. 124 id. 125 see indian civil rights act of 1968, pub. l. no. 90-284, tit. ii, § 201, 82 stat. 77 (1968) (codified at 25 u.s.c. §§ 1301–02) (affirming tribal “powers of self-government” and imposing certain due process requirements on tribal criminal courts). section § 1301(2) was amended in 1990 to clarify that “powers of self-government” includes “the inherent power of indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all indians.” department of defense appropriations act of 1991, pub. l. no. 101-511, tit. viii, § 8077(b), 104 stat. 1856 (1990); act of oct. 28, 1991, pub. l. no. 102-137, 105 stat. 646 (1991) (removing sunset date to make prior amendment permanent). the tribal law and order act, act of jul. 29, 2010, pub. l. no. 111-211, tit. ii, 124 stat. 2261 (codified in scattered sections of 25 u.s.c.), amended the indian civil rights act (icra) to increase the length of sentences and the size of fines that tribal criminal courts may impose. the violence against women act (vawa), pub. l. no. 103-322, tit. iv, §§ 40001–40730, 108 stat. 1796 (1994) (codified in part at 42 u.s.c. §§ 13701–14040), restored tribes’ power to prosecute and imprison certain non-indian domestic violence offenders. 126 the indian tribal justice act, pub. l. 103-176, § 2, 107 stat. 2004 (codified at 25 u.s.c. §§ 3601–3631 (2006)), recognized that that tribal justice systems “are an essential part of tribal governments,” established a federal office of tribal justice support, and authorized the secretary of interior to enter into self-determination contracts “for the development, enhancement, and continuing operation of tribal justice systems and traditional tribal judicial practices by indian tribal governments.” the indian tribal justice and technical and legal assistance act of 2000, pub. l. no. 106-559, 114 stat. 2778 (codified at 25 u.s.c. §§ 3651–3682 (2006)), recognized that “enhancing tribal court systems and improving access to those systems serves the dual federal goals of tribal political self-determination and economic self-sufficiency” created the department of justice’s office of tribal justice; and, authorized grants to 2021] assimilation, removal, discipline 847 policy was the indian child welfare act of 1978 (icwa), which recognized and reaffirmed native nations’ primary authority over child welfare matters.127 this affirmation of jurisdiction did not occur in a vacuum: congress specifically acknowledged the role of federal128 and state129 governments in breaking up native families and harming native children. icwa affirms the existence of tribal jurisdiction even outside indian country,130 and it recognizes that tribal authority over children within indian country is exclusive.131 although icwa applies only to dependency matters, its philosophical underpinnings regarding the importance of tribal control over children apply to juvenile delinquency as well.132 tribes and non-profit organizations to improve tribal courts and provide legal services to civil and criminal litigants in tribal courts. notably, the act specifically provided that it should not be construed to “encroach upon or diminish in any way the inherent sovereign authority of each tribal government to determine the role of the tribal justice system within the tribal government or to enact and enforce tribal laws,” to “impair the rights of each tribal government to determine the nature of its own legal system or the appointment of authority within the tribal government,” or “alter in any way any tribal traditional dispute resolution fora.” id. § 105. the tribal law and order act and the violence against women act also likewise increased funding to support tribal criminal justice systems. 127 indian child welfare act of 1978, pub. l. no. 95-608, 92 stat. 3069 (1978) (codified at 25 u.s.c. §§§ 1901–63). 128 reestablishing standards for the placement of indian children in foster or adoptive homes, to prevent the breakup of indian families, and for other purposes, h.r. rep. no. 95-1386, at 9 (1978) (“the federal boarding school and dormitory programs also contribute to the destruction of indian family and community life . . . . in addition to the trauma of separation from their families, most indian children in placement or in institutions have to cope with the problems of adjusting to a social or cultural environment much different than their own.”). 129 25 u.s.c. § 1901 (4)–(5). 130 25 u.s.c. § 1911 (a)–(b). 131 25 u.s.c. § 1911(a). 132 see stacie s. polashuk, following the lead of the indian child welfare act: expanding tribal court jurisdiction over native american juvenile delinquents, 69 s. cal. l. rev. 1191, 1209–15 (1996). as polashuk explains, the specific injuries and interests cited by congress to support passage of the indian civil rights act, including the importance of self-determination in general and the particular significance of retaining control over children, also apply in the context of delinquency proceedings. id. at 1210 (“because child-rearing includes punishment, the same reasons apply equally to children being separated for juvenile proceedings as for custody.”). 848 colum. j. race & l. [vol. 11:811 iv. re-envisioning justice for children the history of native girls under state control reveals that the conception of education, child welfare, and juvenile justice as three separate institutions with three separate purposes is a false one. for native children, the choice to name a particular institution a school, a reformatory, or a treatment center means little because the goal (assimilation) and the means (removal, discipline, and confinement) have always been the same. this history simply demonstrates that federal and state actors have been endlessly creative in reforming and renaming their systems of social control, but the underlying truth of the system remains unchanged. this framework is also helpful in understanding government treatment of other children. as just one example, the trump administration’s plan to house migrant children, allegedly for their own protection, and based on the insinuation that their parents were lawbreakers, was abandoned after commentators drew on the fort’s history as a place used to confine disruptive populations, beginning with native prisoners and children.133 this history also makes clear that any effort to fix child welfare, education, or delinquency systems will require abolition of the old, intractable systems, and a new vision of the relationship between children and the government. in this regard, native children—at least those affiliated with federally recognized tribes—are uniquely situated because federal law recognizes that tribes are separate governments with jurisdiction over child welfare and delinquency. this means that native communities can remove them from the federal and state systems that have been so harmful and recreate new systems.134 133 ken miller, plan halted to house migrant kids at oklahoma’s fort sill, army times (july 28, 2019), https://www.armytimes.com/news/yourarmy/2019/07/28/plan-halted-to-house-migrant-kids-at-oklahomas-fort-sill/ [https://perma.cc/4px9-hceb]. 134 25 u.s.c. § 1911(a) (recognizing tribes’ exclusive jurisdiction over child welfare matters in indian country). icwa codified the supreme court’s holding in fisher v. district court, 424 u.s. 382, 387–89 (1976), which affirmed inherent tribal jurisdiction over child welfare and adoption, exclusive of state jurisdiction for matters involving indians in indian country. because tribes have jurisdiction based on both membership and territory, their jurisdiction over child welfare matters also extends beyond indian country. see john v. baker, 982 p.2d 2021] assimilation, removal, discipline 849 as sovereign governments, native nations have a unique power to reshape their child welfare and delinquency systems. of course, this recognition of jurisdiction is only the first step towards abolition and recreation. disentangling tribal systems from the federal and state models that surround them is a difficult undertaking, especially because non-tribal courts must be willing to recognize and enforce tribal laws and decisions. as i have described in the context of tribal juvenile justice systems, the influence of federal policy and funding decisions can push tribes toward mimicking the very systems from which they seek to remove children.135 while tribal systems sometimes resemble state systems in key ways, they also depart from state systems to a significant degree. in these departures, seeds of a reimagined system can be found. this part outlines three areas in which indigenous approaches to justice for children have led to fundamental changes in the relationship between government systems, families, and children. the approaches described here have the potential to serve native girls in a way the systems described in part iii cannot. their specific impact on girls cannot be fully captured because of the general absence of data on indigenous justice approaches and the failure of most research on youth to center girls as subjects. their benefits are not specific to native girls, however, and they are described here in general terms of how they reshape children’s relationship to the legal system. the purpose of this part is to identify concrete ways that the experiences of native children described in part iii have motivated specific interventions into contemporary child welfare and juvenile justice systems that reimagine central components of the systems. as an intervention into the conversation on child welfare and abolition, it aims to show how native communities have been leaders in reimagining child welfare and juvenile justice. the approaches described below, however, are typically adopted in a context that largely resembles existing systems. in this sense, this part does not describe abolitionist practices. 738, 755–59 (alaska 1999). see also rolnick, untangling the web, supra note 18, at 87–99 (describing tribes’ inherent territorial and member-based jurisdiction over juvenile delinquency). 135 addie c. rolnick, locked up: fear, racism, prison economics and the incarceration of native youth, 40 am. indian culture & res. j. 55, 73–74 (2016) [hereinafter rolnick, locked up]. 850 colum. j. race & l. [vol. 11:811 moreover, like the buildings described in the opening of this essay, these interventions are sometimes at risk of being coopted in service of the same disciplinary, assimilationist systems that they are intended to replace.136 each of them, though, somehow redefines the relationships between children, families, communities, and governments. it is this kind of shift—not cultural competency trainings, targeted programs, or rebranding of juvenile justice—that is necessary to abolish the old systems and replace them with systems that actually help children heal. a. customary adoption and kinship care at their worst, state child welfare systems pit struggling parents against their children’s foster families. at their best, these systems offer help to parents, but continue do so under the threat of child removal should the parent slip up. helping children is linked with removing them because state law recognizes a maximum of two parents. if a child needs additional care, the system provides that care through a substitute parent. a foster parent who desires a long-term relationship and legal decision-making rights must usually displace a parent in order to have those rights recognized. many indigenous legal systems recognize some form of customary adoption.137 in this arrangement, a child gains additional parents, but does not lose any parents. in many communities, this practice of sharing children was common. this practice recognized that child care is a collective responsibility and allowed children to be redistributed among community members in a way that ensured families had the resources to care for them, and invoked the support of extended families and the community. by incorporating customary adoption into modern child welfare laws, native nations are reimagining adoption as child-sharing instead of child-taking, fundamentally disrupting a central aspect of child welfare law. the child-taking model of 136 see paura moyle & juan marcellus torri, māori, family group conferencing and the mystifications of restorative justice, 11 victims & offenders 87, 94–99 (2015) (drawing on māori experiences to contest the “myth” that family group conferencing employs indigenous justice principles). 137 see, e.g., white earth band of ojibwe jud. code, tit. iv, §§ 1.05(32) and 11.12 (2017) (defining and authorizing customary adoption); native village of barrow iñupiat traditional government tribal children’s code, § 4-4-12 (2020) (defining a form of customary adoption called iñuguq). 2021] assimilation, removal, discipline 851 termination and adoption also means that, even with early interventions aimed at reunifying families, the punitive threat of losing one’s children looms over every step of the child welfare process. by adopting a non-taking model, customary adoption potentially removes the punitive threat, allowing government intervention to be premised on collaboratively helping children. while tribal laws commonly recognize customary adoptions as a permanency option, it is a separate question whether state and federal authorities will treat it that way. this is significant because only a permanent placement will stop the timeline set in motion by the adoption and safe families act— which requires termination of parental rights as a step towards permanency in most proceedings once a child has been in foster care for a certain period of time. some state laws now recognize customary adoption as a permanent placement. for example, california incorporated a customary adoption provision into its state court practice for native children.138 along with helping to redefine adoption, native children’s courts have also helped to redefine foster care. as it is practiced in most u.s. jurisdictions, foster care often means care by strangers. children are removed from their homes and then disappear into a mysterious network of foster care placements. they may move around to the homes of different foster parents, and may lose contact with parents, siblings, and extended family as they enter the worlds of their foster families. in native communities, foster care is more likely to mean placement with a relative. vivien olsen, a tribal attorney for prairie band potawatomi nation, describes tribal communities as “an extended family network;” and notes that “to place a child away from their relations, frequently prevents them from interacting with tribal elders including their own grandparents. tribes traditionally generally provide deference and respect for their tribal elders. grandparents and elders have the obligation to 138 see jud. council of cal. admin. off. of cts., ctr. for fams., child. & the cts., judicial branch report to the legislature: tribal customary adoption 4–5 (2013), http://www.nrc4tribes.org/files/lr-tribalcustomary-adoption-report_123112.pdf [https://perma.cc/9wgw-6969] (describing customary adoption legislation and defining customary adoption as a tribal adoption that does not require termination of the birth parents’ rights). 852 colum. j. race & l. [vol. 11:811 instruct tribal youth in the ways and customs of the tribe.”139 in describing how tribal courts are better suited than state courts for maintaining the connection between children and their relatives, olsen points to specific provisions in the prairie band potawatomi code, including placement preferences that specifically include tribal relatives-by-blood, tribal relatives-bymarriage, tribal non-blood relatives,140 and a grandparents rights provision that includes “a duty to provide instruction and training regarding tribal customs and traditions.”141 initially, the role of relatives as foster placements was not supported by federal laws that require permanency, nor by the laws of many states. a child in the care of a relative was therefore treated as one who needed a placement, not one who had a stable home.142 relatives who cared for children could encounter difficulties obtaining federal foster care payments if they were not separately licensed as foster parents, and some states required relatives to pass stringent licensing and background requirements. federal law began to recognize relatives as caregivers with the indian child welfare act, and later amendments the adoptions and safe families act clarified that kinship care could count as a permanent placement and relatives caring for children could qualify for federal foster care payments.143 states have increasingly eased requirements for relatives to take advantage of foster care benefits.144 in this manner, native nations have helped reimagine foster care as family caregiving instead of sending children into strangers’ homes. viewed against the history of assimilative removal practices, this change is especially significant. for many 139 vivien olsen, after adoptive couple: icwa from a tribal government perspective (2014) (unpublished manuscript) (on file with the university of kentucky). 140 prairie band potawatomi l. & ord. code § 6-4-7. 141 prairie band potawatomi l. & ord. code § 6-5-10. 142 this approach recalls the height of state child welfare removals, where children being cared for in multigenerational homes or by relatives was treated as an indicator of parental neglect and cause for removal. 143 u.s. dept. of health & hum. servs., report to the congress on kinship foster care (2000) (describing a growing practice of licensing relatives as foster parents and provisions of the adoption and safe families act that permit states to exempt children in foster care with a relative from its termination timelines). 144 id. 2021] assimilation, removal, discipline 853 adoption advocates, assistance to native children has been synonymous with replacing their families with new white families. kinship foster care changes that. instead of condemning a child’s parents and entire family as dysfunctional, relative placements position the child’s family as a solution, separating help for children from efforts to undermine native families. b. wellness courts and family group conferencing native nations have taken a front seat in reimagining child welfare, supported by federal laws that recognize tribal control over child welfare and funding intended to help build stronger tribal systems. while the same support for tribal control over delinquency is lacking, native nations and indigenous peoples have also helped to reimagine juvenile delinquency systems. one specific form of this reimagining has taken place via healing to wellness courts. the wellness court model was developed by native communities to serve indigenous people and to address drug and alcohol use in a non-punitive setting. wellness courts were loosely based on the non-native drug court model and were federally supported beginning in 1997. a coalition of tribal courts and native organizations developed and refined an approach, now called a healing to wellness court, based on indigenous justice principles like community accountability and reconciliation.145 these courts “utilize a nonadversarial approach, integrating traditional concepts of 145 patricia riggs, tribal healing to wellness court: program development guide 5 (tribal l. & pol. inst., draft publ’n no. 5, 2002) (defining wellness courts as those that “administer justice in a manner that draws on tribal cultural components and strengths tribal traditions, spiritual healing practices, traditional dispute systems, and tribal fundamental beliefs and values”); joseph thomas flies-away & carrie e. garrow, healing to wellness courts; therapeutic jurisprudence, 2013 mich. st. l. rev. 403, 427–36 (2013) (setting forth detailed conceptual framework for wellness courts and therapeutic jurisprudence); caroline s. cooper et al., tribal healing to wellness courts: treatment guidelines for adults and juveniles 19–20 (tribal l. & pol. inst., draft publ’n no. 3, 2002) (underscoring the importance of indigenous healing practices and a holistic approach). tribal l. & pol. inst., tribal healing to wellness courts: the key components 1–2 (2003) (identifying community resources and indigenous justice approaches as core aspects of wellness courts). 854 colum. j. race & l. [vol. 11:811 healing and community involvement toward healing, rather than punishing, their addicted tribal members.”146 healing to wellness courts have been a cornerstone of native nations’ efforts to reduce juvenile detention and incarceration.147 this is especially important because roughly one third of youth in tribal or bia detention facilities came into contact with the juvenile system because of an alcohol or drugrelated offense.148 in a similar vein, family group conferencing is another model used increasingly in u.s. jurisdictions to reshape juvenile justice. this model originated in new zealand courts, where it was developed to reflect māori understandings of children as belonging to an entire community. the family group conferencing model brings a child’s extended family together to address the problems and make decisions.149 one goal is to reduce government intervention into children’s lives by directing state power toward assisting in family decision-making,150 not replacing it, or wielding a threat of removal. it positions children’s families as part of the solution rather than understanding families as part of the problem, and thereby defining separation from families as necessary to protect or rehabilitate children.151 there is some evidence, however, that 146 joseph thomas flies-away et al., tribal l. & pol. inst., overview of healing to wellness courts 10 (2d ed. 2014). 147 id. at 13 n.26 (describing three juvenile healing to wellness courts). 148 rolnick, locked up, supra note 135, at 65–66 (citing 2013 data from the jails in indian country report indicating that 33% of youth in detention at mid-year were there for drug and alcohol offenses, including 27% percent who had been charged with public intoxication). 149 neelum arya, family-driven justice, 56 ariz. l. rev. 623, 687–89 (2014) (describing family group decision-making model). 150 f.w.m. mcelrea, the new zealand model of family group conferences 2 (mar. 1998) (unpublished conference paper), http:// restorativejustice.org/am-site/media/the-new-zealand-model-of-family-groupconferences.pdf [https://perma.cc/vw6j-f6gf] (listing the transfer of power from the state to the community as one of the distinctive elements of the model). 151 see, e.g., mary mitchell, reimagining child welfare outcomes: learning from family group conferencing, 25 child & fam. soc. work 211, 212 (2020) (“in child welfare, a child’s right to participate is often at odds with his/her right to protection, and those parents with whom partnership is required are also those identified as being in need of support, direction, and correction. families with care and protection needs are often caught in conflicting policy and practice expectations: parents are expected to take on responsibilities for 2021] assimilation, removal, discipline 855 girls respond less positively than boys to family group conferencing. researchers in new zealand found statistically significant differences between girls and boys concerning whether they felt like others in the conference treated them with respect and whether they felt like they could say what they wanted.152 c. best interests indigenous communities have also helped redefine what it means to act in a child’s best interest. the “best interest of the child” standard, central to most judicial proceedings involving children, is usually set forth in individual terms.153 while state courts may also consider the rights of parents, extended family members, and even tribes, each of these are understood as separate entities with separate interests. stated in individual terms, children’s interests can easily seem to be in tension with the interests of their parents or their communities. for example, opponents of icwa sometimes characterize protection of tribal interests as dangerous to the safety and well-being of native children.154 a different formulation of children’s best interests would acknowledge the link between individual and collective wellbeing.155 rather than pitting children’s interests against tribal interests, such a standard would acknowledge that tribal care, while being positioned as failing. this dichotomous positioning can often be at odds with child welfare outcomes discourse, impacting on the way work with children and families is approached.”) (citations omitted). 152 gabrielle maxwell & venezia kingi, differences in how girls and boys respond to family group conference: preliminary research results, 17 soc. pol’y j. of n.z. 171 (2001). 153 see child welfare info. gateway, determining the best interests of the child 2–3 (2020) (collecting state and territorial statutes and listing factors used in determining best interests, including health, safety, resources for children, and child’s relationship to parents). 154 see, e.g., timothy sandefeur, treat children as individuals, not as resources, cato unbound (aug. 1, 2016), https://www.cato-unbound.org/2016 /08/01/timothy-sandefur/treat-children-individuals-not-resources [https://perma .cc/cf5l-u766] (characterizing icwa as “making it harder to rescue [indian children] from abusive families” by “[giving] tribal governments extraordinary powers” and “overrid[ing] the best interests standard”). 155 see addie c. rolnick, indigenous children, in oxford handbook on children’s rights law (jonathan todres & shani m. king, eds., 2020). see also lorie m. graham, reconciling collective and individual rights: indigenous education and international human rights law, 15 ucla j. int’l l. & foreign affs. 83 (2010). 856 colum. j. race & l. [vol. 11:811 continuity and connection to culture and community is part of children’s best interests, along with physical safety, education, and food. measured against such a standard, removal of children from their families and communities is presumptively not in their best interests. “[f]orcible removal of indigenous children for education and for reasons of child protection are acts that undermine the ability of indigenous peoples to pass on indigenous knowledge, as well as violate the right of indigenous children to an identity.”156 a reconceptualized best interests standard is a critical step in reshaping the relationship of state power to native children because native children’s interests have so often been defined in opposition to their families and their communities. in the context of foster care and adoption, the exercise of state power to remove and assimilate children has been defended as necessary to protect the individual best interests of native children.157 as peter j. herne, former chief judge of the st. regis mohawk court, explains—contrasting the state law standard in new york with a standard crafted for native children—one aspect of native children’s interests is a belonging, or the idea “that the best interests of an indian child can only be realized when an ‘indian child’ can establish, develop, and maintain political, cultural, and social relationships with their indian family, community, and nation.”158 while herne points to tribal justice systems as the source of this standard, he notes that the indian child welfare act adopts this approach in that its “best interests” standard for children “is intertwined with the interests of indian parents and tribal nations.”159 the laws of some native nations incorporate a detailed best interests standard that recognizes that children’s interests are intertwined with the 156 allyson stevenson, child welfare, indigenous children and children’s rights in canada, 10 revista direito e práxis 1239, 1247 (2019). 157 see id. at 1242 (describing how an individualized best interests standard made possible the “sixties scoop” of indigenous children by canada’s adoption and child welfare system and noting that by doing so “indigenous child removal logic operated against meaningfully addressing the economic and political conditions that made families vulnerable, and caused communities struggle to provide the necessary elements for healthy children and families.”) 158 peter j. herne, best interests of an indian child, n.y. state bar ass’n j. 22, 23 (2014), https://www.srmt-nsn.gov/_uploads/site_files/herne-marapr2014.pdf [https://perma.cc/rd47-7zh5]. 159 id. 2021] assimilation, removal, discipline 857 interests of their families and communities.160 similar expressions can be found in the best interests standards developed by aboriginal and torres islander communities in australia, another settler colonial country161 that engaged in wholesale indigenous child removal as a tool of assimilation.162 indigenous understandings of children’s best interests have already reshaped international law on children’s rights. prompted by emphasis on collective rights and selfdetermination in the u.n. declaration on the rights of indigenous peoples, the committee on the rights of the child issued a clarification to its “best interests” standard, explaining that “the best interests of the child is conceived both as a collective and an individual right, and . . . the application of this right to indigenous children as a group requires consideration of how the right relates to collective cultural rights.”163 the committee still anticipated possible conflict between individual and collective rights, and privileged individual rights over collective, but cautioned that “considering the collective cultural rights of the child is part of determining the child’s best 160 see, e.g., yurok constitution & tribal code § 13.25.010 (“a determination of the best interests of the child should include consideration of the rights of the child as a yurok and the interest of the yurok community and tribe in retaining its children in its society; political membership in the tribe and the attendant benefits such as hunting and fishing rights; the child’s cultural heritage; and the opportunity to participate in the ongoing customary life of the tribe and maintain the connection that each yurok has with the yurok territory and their extended family.”); white earth band of ojibwe jud. code, tit. iv, §1.05(14)(a) (2017) (defining the best interests of the child to include consideration of “the ability of the tribe and reservation community to provide for the care of the child”). 161 wolfe, supra note 7, at 397. 162 maureen long & rene sephton, rethinking the “best interests” of the child: voices from aboriginal child and family welfare practitioners, 64 australian soc. work 96, 100 (2011) (study of aboriginal views of the best interests standard that identifies tensions between individualist standards and the importance of collective responsibility for children). see also cindy blackstock et al., indigenous ontology, international law and the application of the convention to the over-representation of indigenous children in out of home care in canada and australia, child abuse & neglect, june 2020, at 1. 163 u.n. comm. on the rts. of the child, general comment no. 11: indigenous children and their rights under the convention, ¶ 30, u.n. doc. crc/c/gc/11 (feb. 12, 2009). 858 colum. j. race & l. [vol. 11:811 interests.”164 the u.s. supreme recognized the connection between children’s interests and tribal interests in its first case involving icwa, mississippi band of choctaw indians v. holyfield,165 although its most recent icwa case, adoptive couple v. baby girl, fails to acknowledge the link.166 some indigenous approaches to juvenile justice similarly recognize this alignment between children’s interests and tribal interests. judge abby abinanti, chief judge of the yurok tribe, described the yurok tribe’s integration of cultural approaches to juvenile justice: we survived a horrendous/debilitating invasion that created many hardships heretofore unknown to the people, some of those hardships continue or new ones arise. however, the people have a core strength and a worldview that focuses on our responsibility to and for ourselves, our lands, all the beings in our world and our neighbors who also are struggling in a time of concern for all. we do not intend to walk away from any of those cultural responsibilities. we are stronger every year as we increase our cultural participation and return to our responsibilities in dance/language and stewardship.167 164 id. ¶ 32. see also u.n. comm. on the rts. of the child, day of general discussion on the rights of indigenous children (oct. 3, 2003), https://www.ohchr.org/documents/hrbodies/crc/discussions/recommendatio ns/recommendations2003.pdf [https://perma.cc/722z-s6tf]. 165 490 u.s. 30, 49 (1989). see addie c. rolnick & kim hai pearson, racial anxieties in adoption: reflections on adoptive couple, white parenthood, and constitutional challenges to the icwa, 2017 mich. state l. rev. 727, 744, 744 n. 65 (describing the holyfield formulation of the connection between the child and the tribe). 166 570 u.s. 637, 656 (describing indian father as “play[ing] his icwa trump card at the eleventh hour to override . . . the child’s best interests”). but see id. at 689 (sotomayor, j., dissenting) (“as we observed in holyfield, icwa protects not only indian parents’ interests but also those of indian tribes.”). 167 hearing regarding justice for native youth: the gao report on “native american youth involvement in justice systems and information on grants to help address juvenile delinquency” before the s. comm. on indian. affs., 115th cong. 1, 8 (2018) (statement of hon. abby abinanti, c.j., yurok tribal court), https://www.indian.senate.gov/sites/default/files/abby%20 abinanti%20yurok%20tribe%20testimony%20juvenile%20justice%209_18.do cx.pdf [https://perma.cc/z97r-at3d]. 2021] assimilation, removal, discipline 859 in this formulation, what is best for children is not a separate question from what is best for their communities. the indian child welfare act recognizes that tribal communities need children to survive,168 but indigenous conceptualizations of children’s best interests make this link bidirectional by emphasizing that children also need their communities to survive.169 the purpose of this part has been to highlight the transformative efforts of indigenous communities when it comes to the government’s role in caring for and raising children. each of the innovations described above involves a fundamental reconceptualization of a core aspect of child welfare or juvenile justice, a reimagining of the relationship between child, parent, family, and government. a sustained examination of these specific interventions is beyond the scope of this article, and my purpose here is not to suggest that any of these models work perfectly, or that native nations have fully succeeded in restructuring child welfare and juvenile justice. they have, however, developed innovative models. unfortunately, these models are most often discussed in national child welfare and juvenile justice circles as creative intervention programs—a framing that fails to acknowledge the way each intervention potentially alters the foundations of an entire system. just as the history of native girls under state control reveals themes that will echo for other children, the innovations tribes have created may also be useful models for other communities interested in abolition and reinvention. v. conclusion changing policies is important, but it does not relieve policymakers of the duty to understand the historical context in which today’s institutional responses echo. for native girls, abuse, neglect, and delinquency are in a very real sense a result of the policing of native identity and the criminalization of 168 25 u.s.c. § 1901(3). 169 brief for amici curiae adult pre-icwa indian adoptees, supra note 93, at 16, 18, 20 (describing the the process of reconnecting with their communities as “becoming more complete” and the lack of a connection with their tribes as “a permanent hole in my soul” and explaining the significance of not having anyone “to show me who i was”). 860 colum. j. race & l. [vol. 11:811 trauma.170 native girls come into contact with the child welfare and juvenile justice systems not merely because of the intersection of gender and race, but also the historical trauma that underlies the contemporary native experience. medical research has confirmed what native women have been saying all along: inherited trauma can have physical and psychological effects for generations.171 a system designed without awareness of this context will often respond in ways that retraumatize children. for example, when native girls who get into trouble are sent far from their communities and placed in military or prisonstyle facilities, these practices materially and theoretically echo the boarding school era. a close examination reveals that government intervention under any name—school, foster home, adoptive family, reformatory, boot camp, prison, treatment center—is just a continuation of the pattern of assimilation via removal, discipline, and confinement. while tearing apart the system is essential, abolition and deconstruction is practically difficult. nevertheless, indigenous communities, especially those exercising child welfare and delinquency jurisdiction directly, have taken significant steps to reimagine these systems. 170 see luana ross, inventing the savage: the social construction of native american criminality 18, 41–45 (1998) (describing how native women’s criminality was manufactured by laws that criminalized behaviors associated with native lifestyles or deemed inconsistent with victorian morals); rolnick, locked up, supra note 135, at 72. 171 am. acad. of pediatrics, adverse childhood experiences and the lifelong consequences of trauma 2 (2014), https://www.aap.org/en-us /documents/ttb_aces_consequences.pdf [https://perma.cc/527u-ql7p]; kathleen brown rice, examining the theory of historical trauma among native americans, 3 prof. counseling 117, 117–18 (2013). see also maria yellow horse brave heart & lemyra m. debruyn, the american indian holocaust: healing historical unresolved grief, 8 am. indian & alaskan native mental health rsch. 56 (1998) (defining the concept of historical trauma); dolores subia bigfoot et al., honoring children: treating trauma and adverse childhood experiences in american indian and alaska native communities, am. psych. ass’n (nov. 2018), https://www.apa.org/pi/families/resources /newsletter/2018/11/native-american-trauma [https://perma.cc/265j-nww9] (noting that “[h]istorical trauma impacts populations who have experienced long term-term widespread trauma over the span of generations”); amanda lechner et al., addressing trauma in american indian and alaska native youth (2016), https://aspe.hhs.gov/sites/default/files/private/pdf/207941 /aianyouthtic.pdf [https://perma.cc/p2w9-scu6] (describing historical trauma in connection with boarding schools). columbia journal of race and law vol. 12 july 2022 no. 1 foreword response to the symposium: strengthened bonds: abolishing the child welfare system and re-envisioning child well-being tina lee i. introduction.......................................................................................422 ii. five themes that, together, provide a comprehensive analysis ....423 a. theme one: narratives of irreparable family dysfunction .....424 b. theme two: child welfare harms ............................................426 c. theme three: support and punishment are intertwined .........426 d. theme four: child welfare is not separate from other punishment systems .................................................................427 e. theme five: abolition, not reform, is the way forward ..........428 f. missing pieces: whiteness and rural areas outside indian country ......................................................................................428 iii. roadmap for non-reformist reforms ...............................................430 a. narrative change ......................................................................430 b. non-reformist reforms .............................................................431 c. building alternatives.................................................................433 d. steps to begin healing ..............................................................434 iv. conclusion .........................................................................................434  professor of anthropology, university of wisconsin-stout. 422 colum. j. race & l. [vol. 12:421 i. introduction it is an honor to be asked to respond to the columbia journal of race and the law’s symposium, “strengthened bonds: abolishing the child welfare system and re-envisioning child well-being” and to introduce the symposium contributions through this foreword. the symposium was full of clear and thoughtful analyses of the “child welfare” system, its harms, and the myriad ways it is embedded within and intersects with policing, incarceration, social welfare, education, and colonialism—systems bolstered by racism, homophobia, transphobia, and classism.1 most exciting was how each panel engaged in detailed, constructive thinking about a future where the system of family regulation and policing is abolished, to be replaced by systems of support that truly keep all children healthy and safe while supporting all parents and respecting their autonomy. the camaraderie, energy, and hope were palpable throughout our three days together, and it was truly inspiring to hear not only from academics but from parents and youth who have been affected, attorneys fighting for their clients, and activists who are on the front lines working for “nonreformist reform”2—all with the goal of eventually abolishing the system.3 i don’t think it is hyperbole to say that the symposium felt like an historic moment where the presenters put together the pieces of a comprehensive understanding of the status quo and in turn worked towards a clearer roadmap for change. this collective work and discussion helped build bridges between those of us who are working on this issue from different angles and positions, and i hope it will continue to grow a movement for abolition. kudos to the co-chairs, jane spinak and nancy polikoff, for bringing together a diverse set of people and intentionally working to ensure that those affected by the system were given a space to share their experiences. thank you, also, to the editors, nicolás quaid galván, jacob elkin, xyzlo r. lee, and chabely altagracia jorge, and to michelle ellis for organizing the logistics of the symposium. this symposium was organized in honor of the twentieth anniversary of dorothy roberts’ groundbreaking book, shattered bonds: the color of child welfare. i first read the book as a graduate student in 1 for a discussion of how policing and incarceration intersect with child welfare to leave women vulnerable to losing parental rights, see generally carla laroche, the new jim and jane crow intersect: defending the parental rights of mothers during incarceration, 12 colum. j. race & l. __ (2022). for an analysis of the intersections between child welfare, juvenile justice, and education, see generally kele stewart, re-envisioning child well-being: dismantling the inequitable intersections among child welfare, juvenile justice and education, 12 colum. j. race & l. __ (2022). 2 ruth wilson gilmore, golden gulag: prisons, surplus, crisis, and opposition in globalizing california 242 (2007). 3 drawing on data from twenty institutional analysis conducted over the last fifteen years, bill bettencourt and kristen weber demonstrate that attempts at reform have not changed the negative outcomes for families caught up in child welfare. this points to the need to abolish current systems and reimagine ways to support children and families. see generally bill bettencourt & kristen weber, different year, different jurisdiction, but the same findings: reforming isn’t enough, 12 colum. j. race & l. __ (2022). for a discussion of the need to center the experiences of those who have been directly affected by child welfare in abolitionist work, see generally bianca shaw et al., centering parent leadership in the movement to abolish family policing, 12 colum. j. race & l. __ (2022). 2022] foreword 423 anthropology at the graduate center of the city university of new york a few years after its publication. the book provided me with an analysis and body of data that became a touchstone as i started to investigate child welfare by observing the day-to-day practices that make up this profoundly unjust system. at the time i conducted my research, anthropologists were writing about incarceration, policing, and the welfare system (i.e., workfare and “welfare reform”), but nothing had been written in anthropology about how the child welfare system was part of this larger picture. my research looked at the history of child welfare in new york city and how it emerged as a way to police “dangerous” populations in the midnineteenth century (i.e. irish, eastern and southern europeans who were, at the time, considered racially inferior), how the system punished families of color for poverty through child removal, how the courts were or were not a forum for checking the power of the child welfare agency, and how a focus on “compliance” recreated poverty, leaving families more vulnerable. my book, catching a case: inequality and fear in new york city’s child welfare system, ended with a call to address the roots of family issues by addressing poverty and the lack of supportive services (including health care, mental health care, and drug treatment services), rather than continuing to punish families with child removal. since then, i have become more engaged with thinking around police and prison abolition, and i have become convinced that the “child removal system” must be a part of the conversation about how to abolish coercive systems to create a more just society. i’m heartened to know that so many others are coming to the same conclusion and taking steps to make it happen. in what follows, i draw out connections among the panels at the symposium,4 and the resulting pieces in this issue, and the themes that emerged. these make up, in my mind, a comprehensive analysis of this system and its ties to other systems which deal with the social problems stemming from structural inequalities through punishment. along the way, i point to what i see as next steps in expanding this analysis and filling the few gaps that remain. i end by summarizing the concrete steps towards abolition that were identified by participants, steps which are already being taken in the work of activists, attorneys, and scholars. ii. five themes that, together, provide a comprehensive analysis professor roberts’ keynote address,5 the comments made in the panel afterwards, and the panels across the following two days drew many connections across time, across groups who have been affected by “child welfare,” and across state systems which follow carceral and punishment logics (such as criminal “justice,” education, and welfare). in many of the panels, the most powerful moments were those when the parents and youth 4 video recordings of all of the panel presentations can be found on the columbia journal of race and law’s youtube page. see colum. j. race & l., playlist, vol. 11 symposium (“strengthened bonds: abolishing the child welfare system and re-envisioning child well-being”), youtube (july 13, 2021), https://www.youtube.com/playlist?list= plqqqx5i6usk6b9rje_qhkjzdw9sdz6ypb. 5 dorothy roberts, how i became a family policing abolitionist, 11 colum. j. race & l. 455 (2021) [hereinafter roberts, family policing abolitionist]. 424 colum. j. race & l. [vol. 12:421 affected by these systems spoke about their experiences. in their words, they were working to turn “pain into power for change”6 or “pain into purpose into policy.”7 throughout the symposium, the participants discussed five themes, collectively making up a comprehensive analysis. a. theme one: narratives of irreparable family dysfunction the narrative of irreparably broken families and parents, and the need to “save” their children, has been a driving force throughout american history and across the many systems that have intervened in the lives of poor, black, and native groups. the narrative is fundamentally grounded in racism and white supremacy, power structures and systems of belief that, when intertwined with sexism, homophobia, transphobia, and ableism, are integral to the capitalist system.8 throughout u.s. history, white supremacist culture has seen little value in poor or black and brown families. it has sought to punish or assimilate those who don’t fit into white and middle-class norms of “proper” child rearing, often through child removals.9 the political choice to deal with the effects of inequality through child removal is tied to the central place of race in u.s. society and how it has fundamentally shaped policy choices throughout history. this point is brought home powerfully by gwendoline alphonso who has illuminated the way that—as a historical matter–supportive state policies and practices are reserved for white families seen on affectionate terms as fundamentally needing protection and privacy, as opposed to black families who are seen in terms of their labor and potential to be exploited for profit.10 similarly, native american families were also not seen as worthy of support, but were instead deliberately ripped apart to destroy the transmission of their culture.11 a desire to control or assimilate non-white and poor families continues today in the modern foster care system, as leyda garcia 6 ashley albert & amy mulzer, adoption cannot be reformed, panel presentation at columbia journal of race and law symposium: strengthened bonds: abolishing the child welfare system and re-envisioning child well-being (june 18, 2021). 7 kara finck et al., looking through client lenses: youth of color, lgbt parents and youth, disabled parents, panel presentation at columbia journal of race and law symposium: strengthened bonds (june 18, 2021). 8 catherine sakimura and courtney g. joslin, for example, discuss how biases grounded in racism, sexism, and homophobia combine to make lgbtq families of color particularly vulnerable to child welfare intervention and child removals. see generally catherine sakimura & courtney g. joslin, fractured families: lgbtq families of color and the child welfare system (unpublished manuscript) (on file with the columbia journal of race and law); see also ashley albert et al., ending the family death penalty and building a world we deserve, 11 colum, j. race & l. 860, 872–78 (2021). 9 see laura briggs, taking children: a history of american terror 11–13 (2020). 10 gwendoline m. alphonso, political-economic roots of coercion: slavery, neoliberalism, and the racial family policy logic of child and social welfare, 11 colum. j. race & l. 471, 476, 480–83 (2021). 11 see generally theresa rocha beardall & frank edwards, abolition, settler colonialism, and the persistent threat of indian child welfare, 11 colum. j. race & l. 533, 533–74 (2021). 2022] foreword 425 greenawalt12 and the foster youth who spoke during the panel “looking through client lenses”13 described. these beliefs in individual pathology, which are applied to families who cannot be helped but must be separated, are fundamentally tied to racial capitalist logics. although racial capitalism bookended the symposium, mentioned by both professor roberts in her remarks14 and by bill bettencourt in his during the last panel,15 the role of racial capitalism is worth more discussion. as don lash wrote in his 2017 book about the system, “child welfare” serves an important ideological function under capitalism: real or perceived dysfunction in working-class families reduces the supply of labor power and raises the threat of a disruptive class . . . . [t]he marxist notion of social reproduction . . . is essential to understanding why capitalism needs to regulate poor and working-class families, and therefore why it needs an ideological framework to justify that . . . . [t]he child welfare system helps to make the impoverishment and societal neglect of children tolerable to the larger population by promoting the idea that children are valued and protected. perhaps of even greater importance, the system situates blame for the danger and harm imposed on children on their families rather than on the material conditions of their existence.16 in other words, regulating some families is necessary, and child welfare narratives provide an ideological justification for doing so. however, it is also important to note that capitalism in the united states is fundamentally a racialized system. as charles hale and leith mullings put it: “since its inception capitalism has both profited from and actively reproduced racial difference.”17 racial capitalism, then, relegates some populations, marked by supposed “racial” differences, to the worst forms of exploitation, leaving them vulnerable to coercive state intervention.18 direct ties between racial capitalism and child removals abound in u.s. history. slave owners destroyed african american families to terrorize 12 leyda m. garcia-greenawalt, guilty: how immigrating to the united states became a life sentence to child welfare, panel presentation at columbia journal of race and law symposium: strengthened bonds (june 16, 2021) (describing being told to turn off music sung in spanish by a white foster parent). 13 finck et al., symposium panel, supra note 7 (foster youth describing losing some part of their cultural and ethnic identities as they struggle to fit into foster families). 14 roberts, family policing abolitionist, supra note 5, at 460–61. 15 bill bettencourt & kristen weber, different year, different jurisdiction, but the same findings: reforming isn’t enough, panel at columbia journal of race and law symposium: strengthened bonds (june 18, 2021) (mentioning the need to end racial capitalism during the question and answer session). 16 don lash, when the welfare people come: race and class in the us child protection system 8–9 (2017). 17 charles hale & leith mullings, a time to recalibrate: analyzing and resisting the americas-wide project of racial retrenchment, in black and indigenous resistance in the americas: from multiculturalism to racist backlash 29 (2020). 18 for a discussion of the effects of racialized poverty and the efforts to better support families, see generally melody r. webb, building a guaranteed income to end the child welfare system, 12 colum. j. race & l. __ (2022). 426 colum. j. race & l. [vol. 12:421 them, making them more compliant and their labor more exploitable.19 social workers in the 1960s separated black children from their mothers who were kicked off welfare rolls when black labor was needed.20 boarding schools tried to wipe out native american cultures so that their land could be used more “productively” by white settlers.21 black and native children in reform and boarding schools were loaned to white families as laborers to help offset costs. in the nineteenth century, representatives of societies for the prevention of cruelty to children would frequently turn a blind eye to family violence if parents were otherwise hardworking.22 these links continue today, making an analysis of racial capitalism essential. b. theme two: child welfare harms the second major theme is that, despite the narrative of “saving” children, the system is fundamentally harmful. as discussed by many of the pieces, “child welfare” does not create safety but reproduces the need for intervention, often across generations. it creates intergenerational trauma, as multiple generations of families are torn apart, while it recreates the very harms it purports to address (poverty, trauma, addiction, mental health issues).23 by continually intervening in only some families while supporting and protecting the privacy of others, the state paints entire communities as unworthy of support and continually recreates conditions that are then used to justify continued interventions and harms.24 these systems can only offer punishment or “services” that aim to “fix” individuals (such as counseling and parenting classes), refusing to address the profound social inequalities that lie at the roots of unsafe conditions for children, and instead blaming individuals and families. these profound harms were powerfully articulated by the parents and youth who shared their stories throughout the symposium. in short, child removal terrorizes families, and it has always been a way to assimilate and control. c. theme three: support and punishment are intertwined the third major theme (closely related to the second) is an analysis of how, for poor families and families of color, access to the supportive services that do exist has always been tied to punishment or the threat of 19 briggs, supra note 9, at 19 . 20 claudia lawrence-webb, african american children in the modern child welfare system: a legacy of the flemming rule, 76 child welfare 9, 9–31 (1997); taryn lindhorst & leslie leighninger, “ending welfare as we know it” in 1960: louisiana’s suitable home law, 77 soc. serv. rev. 564, 564–84 (2003); frances fox piven & richard a. cloward, regulating the poor: the functions of public welfare 135–39 (1993). 21 beardall & edwards, supra note 11, at 541–42. 22 elizabeth pleck, domestic tyranny: the making of american social policy against family violence from colonial times to the present 81–84 (1987). 23 webb, supra note 18, at __. shanta trivedi and mathew fraidin also discuss how income supports for families would be a truly meaningful “reasonable effort” to prevent foster care placement. see generally shanta trivedi & matthew fraidin, a role for communities in reasonable efforts to prevent removal, 12 colum. j. race & l. f. 29 (2022). 24 michael wald points out that coercive child welfare interventions are often harmful to children and their families. see generally michael wald, replacing cps: issues in building an alternative system, 12 colum. j. race & l. __ (2022). for a discussion of the harms of adoption and especially how it denies people the opportunity to pass down culture, see generally ashley albert & amy mulzer, adoption cannot be reformed, 12 colum. j. race & l. __ (2022). 2022] foreword 427 punishment. removals and threat of removals terrorize and attempt to control black, brown, poor, and lgbtq folks as well as individuals with disabilities25—particularly when those groups start to assert their rights.26 mandated reporting laws create the links between systems; for example, when teachers, who are mandated reporters, call child protective services, they link schooling to family regulation. these laws require helping professionals (doctors, social workers, school officials) to report children they suspect are being maltreated, bringing them into a policing, rather than a helping, relationship with marginalized families. this point was powerfully made in several panels, but especially in the piece on schools by brianna harvey, josh gupta-kagan, and christopher church27 and the piece on hospitals by clara presler.28 d. theme four: child welfare is not separate from other punishment systems the fourth major theme that came out of the symposium is that family policing is part of, and intertwined with, other state efforts to uphold the status quo, including white supremacy and racial capitalism: policing, mass incarceration, “welfare,” immigration, juvenile “justice,” education, and so on.29 as roberts put it in her keynote, there is a “coherent carceral machine,” which originates in slavery, settler colonialism, and genocide of native americans; its function is to oppress politically marginalized people in order to maintain racial capitalism and white supremacy.30 carceral logics are found in policing as well as in ostensibly “helping” systems like child welfare. as addie rolnick points out, although educational, criminal, and child welfare systems have been formally separate and at different times focused on different groups (such as in the late nineteenth and early twentieth centuries, when boarding schools housed native american children, reform schools tied to criminal justice housed black children, and private foster homes or group homes housed the children of the urban immigrant poor), their boundaries are porous, and systems have shifted focus over time.31 despite these historical changes, there are clear continuities across time as these state systems have dealt with poor and non-white children through punishment and child removal.32 25 see generally l. frunel & sarah lorr, lived experience and disability justice in the family regulation system, 12 colum. j. race & l. __ (2022). 26 see briggs, supra note 9, at 37. 27 brianna harvey, josh gupta-kagan, & christopher church, reimagining schools’ role outside the family regulation system, 11 colum. j. race & l. 575, 575–610 (2021). 28 clara presler, mutual deference between hospitals and courts: how mandated reporting from medical providers harm families, 11 colum. j. race & l. 733, 733–66 (2021). 29 see, e.g., stewart, supra note 1, at __; laroche, supra note 1, at __. 30 roberts, family policing abolitionist, supra note 5 at 467. 31 addie c. rolnick, assimilation, removal, discipline, and confinement: native girls and government intervention, 11 colum. j. race & l. 811, 811–60 (2021). 32 another ostensibly “helping” system which was not much discussed during the symposium, but was implicit in the panel looking through client lenses, is that associated with historical practices of institutionalizing individuals with disabilities and mental illnesses. on this point, see molly ladd-taylor, fixing the poor: eugenic sterilization and child welfare in the twentieth century (2017). 428 colum. j. race & l. [vol. 12:421 e. theme five: abolition, not reform, is the way forward finally, across the entire symposium, it was made clear again and again that the child welfare system (and the systems closely aligned to it) cannot be reformed. the speakers reminded all of us that these repressive and negative outcomes are part of the design of these systems and are not a flaw that can be fixed. in the end, “child welfare” and other ostensibly helping systems that use carceral and punishment logics work as they are supposed to. for decades, those who see the family regulation system’s harms (including many who presented at and attended the symposium) have worked to reform the system, but very little has changed.33 instead, reforms have merely strengthened the system. the family first prevention act, as miriam mack identifies, is a case in point.34 in contrast, some of the most promising changes have come from native american groups who have been able, to an extent, to build systems to protect children outside of state-run and federally funded child protective systems. as theresa rocha beardall and frank edwards note, even these efforts, since they are often funded through states and are not separate from larger systems that focus on parental “unfitness” and child removal, have been less transformative than hoped.35 f. missing pieces: whiteness and rural areas outside indian country the analyses made across the symposium are comprehensive, providing us with a deep understanding of family regulations systems, their origins, and their harms. however, i did see two small gaps where more analysis is needed. to be clear, these gaps speak more to where most of the important work on child welfare is currently and rightfully centered, rather than an oversight or blind spot in the symposium. first, there was little discussion of how the boundaries of whiteness have shifted over time and how child removals have also been used to punish non-black and nonnative groups. for example, child removals were used to punish recent eastern and southern european immigrants who were seen, due to cultural differences and especially their poverty, as inferior races of european or not-quite-white in the mid-nineteenth to early twentieth centuries.36 although we must center our analysis on the disproportionate harms done to black and native communities, adding an analysis of whiteness—particularly how its boundaries shift and are policed along lines of class—is also needed and will help us to better understand how child welfare works throughout the united states.37 33 see generally bettencourt & weber, supra note 3; wald, supra note 24; shaw et al., supra note 3. 34 miriam mack, the white supremacy hydra: how the family first prevention services act reifies pathology, control, and punishment in the family regulation system, 11 colum. j. race & l. 767, 767–810 (2021). 35 beardall & edwards, supra note 11, at 559–65. 36 tina lee, catching a case: inequality and fear in new york city’s child welfare system 19 (2016). 37 martin guggenheim makes a similar point in his article, noting that the adoption and safe families act was driven by racial politics and the idea that families of color were mostly affected, making it easy for many to believe that these parents were “unfit” and dangerous. once the law was in place, it would be harmful to all families caught up in child welfare. martin guggenheim, how racial politics led directly to the enactment of the adoption and safe families act of 1997, 11 colum. j. race & l. 711, 729 (2021). 2022] foreword 429 this brings me to the second area that was less discussed in the symposium: an analysis of rural areas outside of indian country. my current work (in its very early stages) examines how the child welfare system operates in a rural, poor, and largely white community in the midwest, a type of child welfare system that is very understudied. i am finding both differences and continuities in the ways that poor, white families are treated as compared to black and native families. for example, caseworkers are, in some ways, more sympathetic to the white parents they investigate as compared to the caseworkers i studied in new york. patterns of trauma are acknowledged; the agency can be slightly more flexible in what assistance it offers to parents (e.g., they occasionally might be able to help with housing); and caseworkers will acknowledge that timelines set out in the adoption and safe families act (“asfa”) are unfair for parents battling addiction. alongside this sympathy, however, caseworkers also blame parents for their own poverty and deeply stigmatize them. use of and addiction to methamphetamine (the most common issue faced by these families) is discussed by caseworkers in ways that are very similar to how crack cocaine was discussed by caseworkers in new york. both drugs are described through the language of “epidemics,” and mothers in both cases (fathers are rarely discussed) are described as monsters, women whose addiction completely overrides any maternal instinct and leads them to do anything just to get the drug. as with other drug scares, the meth “epidemic” is tied to racial anxieties. meth is presented as endangering entire rural communities and becomes emblematic of perceived declines in white status and privilege.38 through conversations with caseworkers, it has become apparent that intergenerational poverty and meth use combined are seen as creating, almost automatically, unfit parents whose children must be removed from their care. to an extent, the issues faced by many of the families in contact with child welfare in this rural community override the benefit of the doubt these parents get from their whiteness. although the term is not used, families are described in ways that echo descriptions of “white trash” in other contexts. “white trash” is a term that serves to draw boundaries, along lines of class, around who is fully white; it has historically been linked to a sense of the innate, biological inferiority of poor whites.39 families here are stigmatized in ways that mark them as unlikely to change and in almost automatic need of intervention since they are fundamentally unable to raise children. the assumptions made about these white families living in poverty sweep them into a system that works much like it does in urban areas: needed services are scarce, and help to escape poverty is practically nonexistent. caseworkers strictly follow asfa timelines, leading to many 38 naomi murakawa, toothless: the methamphetamine “epidemic,” “meth mouth,” and the racial construction of drug scares, 8 du bois rev. 219, 223 (2011); william garriott, methamphetamine in rural america: notes on its emergence, 5 anthropology now 27, 27–35 (2013); travis linnemann & tyler wall, ‘this is your face on meth’: the punitive spectacle of ‘white trash’ in the rural war on drugs, 17 theor. criminol. 315, 315–34 (2013). 39 see generally matt wray, not quite white: white trash and the boundaries of whiteness (2006) (elaborating on this argument and tracing the cultural history supporting it). 430 colum. j. race & l. [vol. 12:421 terminations of parental rights. caseworkers also told me that they have been actively working to strengthen the cooperative relationship between the child protective services department and the local police, mirroring practices in other locations. however, legal protections for these rural families are less robust than those that exist for families of color in some large urban areas. parents do not have attorneys assigned to them so most of them go through the process of attempting to reunify with their children with only the guidance of caseworkers who are often “concurrent planning” for termination as well as reunification. because terminations of parental rights require a jury trial in this state (which is not the case in most others), and caseworkers perceive juries as improperly “pro-parent,” caseworkers work very hard to avoid a trial and push parents to relinquish their rights voluntarily. again, we see the idea that some parents are so pathological that removal is the only safe option being reinforced by policy and used to police and further traumatize. including poor white families in our analysis, while still centering black and native families, can allow us to more precisely understand how race and class intersect. this system creates harms for everyone involved in it, and expanding our lens to see all of it might help us build a larger movement for change. iii. roadmap for non-reformist reforms throughout the panels, analysis was tied to concrete actions and policy proposals that ultimately aim to dismantle rather than reform the system. in listening to these ideas, it seems clear there is a platform of “nonreformist reforms” for change and, most importantly, there are many organizations and people around the country already doing this important work. the pain of family separation is already being turned into power, into organizing, into activism, and into policy change. again and again, we heard about how communities affected by child welfare are working to change it, and it is clear that those who have been affected must lead. their experiences and knowledge must drive the movement, and their leadership should be supported by the work of collaborators and professionals (attorneys, social workers, teachers, and scholars) who can refuse to go along with the status quo. in summarizing and outlining what emerged for me as a platform, i will group specific actions into four categories: narrative change, non-reformist reforms, ways to build alternatives, and ways to begin healing. a. narrative change first, work to change the public narrative around child welfare must continue. during the symposium, there was practically universal agreement that we must stop using the terms “child welfare” or “child protective services” since these terms act as propaganda to shore up support for the system and continue the false narrative that the system serves to improve the lives of children. many different names were used (e.g., the family regulation system, the family policing system, the child removal system, the foster care system), however, and i think shared terminology would make this message stronger. in addition, the work, already being done by activists and scholars, of providing a true narrative about this system and its harms, which concretely links it to other punitive systems that have gotten more attention (mass incarceration and policing), 2022] foreword 431 should also continue.40 the headlines—monstrous parents and heartwarming tales of adoption—must change. we must continue to demonstrate that inequality, not pathological parents, harms children. we must share all the reasons that children are removed, including for choices routinely made by middle-class and white families. this work of publicizing and educating also needs to extend to professionals and those entering these professions—especially attorneys, social workers, and mandated reporters. they must better understand the harms that are likely to follow a report. as one participant asked: what would it mean to train professionals to engage in mass refusal? efforts to train reporters to not call in a case “just to be safe” but to instead help connect families to resources should continue. we should work to make sure mandated reporters know what is available and who, outside of child protective services, can help. perhaps a website like “dontcallthepolice.com” can be created to provide a list of such resources. educators can also work to motivate social workers who truly want to help children to find careers outside child welfare; to emphasize macro causes of child harms; to root out racist, classist, sexist, homophobic, and transphobic content and beliefs from their curriculum; and to diligently challenge these beliefs when they come up in their classrooms. b. non-reformist reforms the second set of recommendations revolves around support for families currently caught up in the system and steps to shrink and dismantle the system. first, all parents, starting at the investigation stage, should have high-quality legal defense by practitioners who know the harms of the system and who bring an anti-racist and abolitionist lens to their work. second, as ismail advocated during the “family surveillance” panel, if caseworkers are already policing, they should be treated as police legally.41 they should have to inform parents of their rights, should be held to stricter standards in their investigations (evidence collected without parents knowing their rights or without probable cause should be thrown out), and should not be able to remove children without court orders in the vast majority of cases.42 anthropologist jessica lopez-espino’s work43 shines a bright light on the problems with the standards of evidence used in family court. these rules might also be changed to better protect parents and reduce removals. although it could be seen as a “reformist reform,” even efforts to apply existing law can have benefits for families, as seen in the way the judge ernestine gray was able to dramatically shrink the foster care population in new orleans.44 these actions, taken on a broader 40 see generally shaw et al., supra note 3; weber & bettencourt, supra note 3; albert et al., supra note 8; albert & mulzer, supra note 24. 41 tarek ismail, the consent of the compelled: child protective agents as law enforcement officers, panel presentation at columbia journal of race and law symposium: strengthened bonds (june 17, 2021). 42 frunel & lorr, supra note 25, at . 43 jessica lópez-espino, “minimally fit” parenting is not “good” parenting: challenging beliefs about parental care in child welfare cases, presentation at columbia journal of race and law symposium: strengthened bonds (june 18, 2021). 44 see generally melissa carter, christopher church, & vivek sankaran, a quiet revolution: how judicial discipline essentially eliminated foster care and nearly went unnoticed, 12 colum. j. race & l. __ (2022). 432 colum. j. race & l. [vol. 12:421 scale, might help limit the numbers of children who are removed and begin to shrink the system, provided, and this is key, that attorneys are trained and practicing with “nonreformist reform” in mind. in addition to these legal changes, funding streams that incentivize removals must be changed. rather than funding foster care and preventive services, resources should be shifted to communities and to service providers that are outside this surveillance system so that families can get support without the threat of child removal. this money must be under the control of communities who can decide how and where to spend it. in addition, as webb discusses in her article,45 temporary assistance for needy families (“tanf”) and child support payments should not be diverted to foster families. it cuts parents off from much needed material support at exactly the time that they need these resources to prove they are a fit parent. along with these policy changes, lawyers should begin to demand income help for families more regularly and to contest “services” that provide little help while continuing to surveil. attorneys should start arguing that the only “reasonable efforts” to prevent removals are those that address the root cause of poverty and lack of resources, as fraidin and trivedi argue.46 in addition to changes in funding, the practice of terminating parental rights should end. instead, other options to ensure that children retain ties with families and communities (kinship care, guardianship) should be used.47 this is another place where native american tribes provide models of how to care for children without the legal fiction of ending a parents’ rights—an extremely traumatic process for parents, children, families, and communities. child abuse registries must also be tackled for the harms they create. state registries are frequently used to deny parents jobs, cutting off potential sources of income. these practices recreate poverty and intergenerational harm by making it difficult for parents to escape surveillance and the threat of removal. a campaign like the “ban the box” campaigns mounted by activists for criminal justice reform could be used to help end the practice of automatically denying parents jobs because of past child protective services (“cps”) involvement.48 changing laws to limit the types of cases that end up on registries is also important. for example, activists in new york successfully lobbied to make it more difficult for parents to end up on the registry (essentially requiring some evidence before parents are listed), limited the time they would be listed, and made it easier for parents to petition to remove their name.49 these efforts should continue in other locations. 45 webb, supra note 18, at __; see also caitlyn garcia & cynthia godsoe, divest, invest, and mutual aid, 12 colum. j. race & l. __ (2022). 46 trivedi & fraidin, supra note 23, at 38–43. 47 see albert et al., supra note 8, at 883–86. 48 ban the box campaign, https://bantheboxcampaign.org/ [https://perma.cc/ hvb3-2p7y]. 49 keyna franklin & sara werner, new law reforming ny state central registry will provide justice and relief to families, rise (apr. 16, 2020), https://www.rise magazine.org/2020/04/scr-reforms/ [https://perma.cc/7est-fhme]. 2022] foreword 433 a campaign to end predictive analytics in child welfare is also needed, as abdurahman argues.50 systems that use “big data” to assign risk scores and predict who might need intervention from the state (in child welfare, welfare, and criminal justice) build biases into the decisionmaking process51 since these computerized assessments are “based on data taken from a social context that has already been shaped by hierarchies of race, class, and gender.”52 these systems then work together to become a “digitized carceral state”53 or “a coherent carceral form of governance that extends far beyond prisons to deal with problems caused by structural inequalities by punishing the very people suffering from them most.”54 these efforts to use “big data” to police and control must be resisted. finally, policy and law changes should be made so that cases of neglect are not reported to cps but instead referred to services provided by communities, a change that could dramatically decrease the number of cases.55 as michael wald reminds us, the current system frames child harm as stemming from the actions of individual parents, ignoring that most cases labeled “neglect” have their roots in larger social inequalities. reporting to community-based services rather than child welfare could dramatically shift child welfare responses towards addressing underlying causes rather than punishing parents while providing needed resources to community-based agencies. this would be a step towards ending the mandatory reporting system all together and disentangling support and policing. in addition to changing mandatory reporting, asfa, which according to martin guggenheim is “the worst law affecting families ever enacted by congress,”56 should be repealed since it incentivizes removals and adoption while embodying the idea that certain families should not be entitled to support. c. building alternatives the third set of recommendations revolves around how we can start to build a world where all families are supported without needing to go through the harmful family regulation/policing system.57 we must build alternatives that support families outside of the state and work towards mutual aid and other ways to provide “solidarity, not charity.” for example, schools could be removed from the web of carceral control through eliminating “school resource officers” who turn disciplinary matters into criminal justice matters and ending the practice of reporting children to child welfare “just to be safe.” instead, schools should be a conduit to link 50 j. khadijah abdurahman, calculating the souls of black folk: predictive analytics in the new york city administration for children’s services, 11 colum. j. race & l. 75, 75–110 (2021). 51 see generally virginia eubanks, automating inequality: how high-tech tools profile, police, and punish the poor (2017). 52 dorothy e. roberts, digitizing the carceral state, 132 harv. l. rev. 1695, 1708 (2019). 53 id. at 1699. 54 id. at 1698. 55 wald, supra note 24. 56 guggenheim, supra note 37, at 711. 57 see generally anna arons, an unintended abolition: family regulation during the covid-19 crisis, 12 colum. j. race & l. f. 1 (2022); garcia & godsoe, supra note 45; trivedi & fraidin, supra note 23. 434 colum. j. race & l. [vol. 12:421 families to supportive services (food pantries, drug treatment, mental health treatment, etc.) in their communities.58 similar steps to disentangle hospitals and healthcare from family surveillance are also needed.59 as lauren van schilfgaarde and brett lee shelton suggest,60 rather than asking who is at fault if a child is harmed, we can shift our thinking, as many native american groups already do, and ask: what does this child need to be a full-fledged member of the community? who can help? communities should adopt practices that involve everyone who can contribute to a resolution in a discussion of how to repair the damage and move forward outside of repressive state systems. we should also find ways to make the supports that white, middle-class families already have— childcare, stable income, health care and mental healthcare, education— universal. these resources either shield privileged families from some of the worst family issues or help them through the same crises that poor, black and brown families face (mental health, addiction, violence, etc.) without the threat of child removal. the resources families need to be stable and thrive must become universal and not tied to employment, and this would remove the stigma attached to “public” versus “private” services. universal basic income, universal health care, and education fully funded and available to all must be our goal. here, again, an analysis of racial capitalism and how to change it must be part of the conversation. as has already been discussed, our society has not had a universal safety net but has instead made the political choice again and again to reserve supportive services for white folks or, more recently, to tie support firmly to middle-class employment. in contrast, public services are stingy, bring stigma, and are tied to punishment. to change this, we must build multi-racial and cross-class coalitions to build universal support systems and end poverty. racial capitalism will, in the end, need to be dismantled to allow a society where everyone can flourish to grow. d. steps to begin healing finally, ways to start to heal the harms already perpetuated by child removals must be pursued. peacemaking and talking circles, restorative justice, and truth and reconciliation commissions are all models we can look to as we find ways to tell the truth about what has happened and begin healing. reparations are also needed to help repair the damage. iv. conclusion although all of this seems daunting, i am hopeful that these changes can be accomplished, and i see them as more doable than it might seem at first glance. a few of the presentations and pieces provide glimpses of what another way can look like. for example, anna arons in her piece, alongside caitlyn garcia and cynthia godsoe in theirs, discusses how the covid-19 pandemic brought about a dramatic decrease in reports, the 58 harvey, gupta-kagan, & church, supra note 27, at 604–605. 59 see generally presler, supra note 28, for an analysis of how these two institutions are intertwined. 60 lauren van schilfgaarde & brett lee shelton, using peacemaking circles to indigenize tribal child welfare, 11 colum. j. race & l. 681, 702–708 (2021). 2022] foreword 435 expansion of mutual aid groups, and a redistribution of resources to families (i.e., stimulus checks and expanded unemployment benefits), all of which were decoupled from punitive systems.61 judge ernestine gray’s work is a similar example of dramatic change. by forcing the child welfare agency in new orleans to explain and prove why children would face irreparable harm if not removed, and by keeping the harm caused by removal and foster care in mind when making decisions, she was able to shrink the foster care population to twenty children at one point and to dramatically shorten the time that children spent in care.62 the work of activists around the country also provides many examples of concrete changes that have already happened. to be sure, this work will be challenging and will face resistance from entrenched interests who benefit from the status quo. as guggenheim pointed out in his presentation, the “progressive establishment” largely supports much of child welfare.63 service providers and social workers who rely on this system for employment will resist; racism and classism will continue to allow many in our society to refuse to sympathize with parents caught up in the system; and the very wealthy and the politicians they currently lobby will vehemently resist universal support systems. although it will take time, this symposium was an important step in creating a basis for change and helping those who have been affected by the system to take on even more prominent leadership roles. we must all continue to look to these activists who are already doing the work and find ways to amplify and support their work. 61 arons, supra note 57, at 13–18; garcia & godsoe, supra note 45, at __. despite dramatic claims that an epidemic of abuse would occur during lockdowns and fears that abuse would be missed as mandated reporters weren’t watching families, these things didn’t (unsurprisingly) come to pass. even new york city’s child welfare agency, the administration for children’s services, has recently admitted that children stayed safe. the child welfare system during covid-19: oversight hearing before the comm. on the general welfare, n.y. city council (june 14, 2021) (written testimony of david hansell, comm’r, admin. for child. servs.). 62 carter, church, & sankaran, supra note 44, at __. 63 martin guggenheim, how racial politics led directly to the enactment of the adoption and safe families act of 1997 – the worst law affecting families ever enacted by congress, panel presentation at columbia journal of race and law symposium: strengthened bonds (june 17, 2021). i. introduction ii. five themes that, together, provide a comprehensive analysis a. theme one: narratives of irreparable family dysfunction b. theme two: child welfare harms c. theme three: support and punishment are intertwined d. theme four: child welfare is not separate from other punishment systems e. theme five: abolition, not reform, is the way forward f. missing pieces: whiteness and rural areas outside indian country iii. roadmap for non-reformist reforms a. narrative change b. non-reformist reforms c. building alternatives d. steps to begin healing iv. conclusion columbia journal of race and law vol. 12 july 2022 no. 1 the new jim and jane crow intersect: challenges to defending the parental rights of mothers during incarceration carla laroche i. introduction ................................................................................... 518 ii. the new jim crow & the new jane crow: background... 523 a. the new jim crow & gender ............................................ 524 b. the new jane crow’s framework .................................... 527 iii. tattered access to effective parents’ counsel ...................... 532 a. defense counsel’s potential bias, time, & caseload constraints ............................................................................. 533 b. defense strategy ................................................................... 535 c. case preparation & communication with mother ....... 540 d. challenges after mothers’ release from incarceration 543 e. the carceral state’s damage ............................................ 547 iv. legal representation enhancement ....................................... 548 a. prison & jail law libraries ............................................... 549 b. multidisciplinary legal representation .......................... 550 c. stop criminalizing mothers in poverty ........................... 551 v. conclusion ..................................................................................... 555 editor’s note: the previously published version of this piece included editorial changes that did not sufficiently pass through the author’s review and thus did not accurately reflect the author’s work. the piece has been updated with the author’s corrections. this is the updated version. the editors convey deepest apologies to the author and readers.  carla laroche, associate clinical professor and director, civil rights and racial justice clinic, washington and lee university school of law; j.d., columbia law school; m.p.p., harvard kennedy school; b.a., princeton university. this piece benefitted from comments received at the association of american law schools conference on clinical legal education (2021) and the american bar association criminal justice section academic committee-american academy for justice at the arizona state university sandra day o’connor college of law academic roundtable (2021). i would like to thank maryam ahranjani, kathryn banks, valena beety, aliza boom, carliss chatman, philip genty, shalay jackson, jd king, alex klein, christina miller, zaneta robinson, i. india thusi, s. lisa washington, and brian wilson for their suggestions and comments on prior drafts; katie miller and rashad simon for their preliminary research assistance; cassandra lamzik for her critical research assistance; and the strengthened bonds: abolishing the child welfare system and re-envisioning child well-being symposium co-organizers jane spinak and nancy polikoff for their guidance. i would also like to thank my parents for their support. i am indebted to the people who participated in the workshops my clinic students conducted in the prison and jail facilities and the law clerks who help so many people in need of legal support while incarcerated. i am grateful to all the columbia journal of race and law editors for their editorial aid, especially madhuri belkale. 518 colum. j. race & l. [vol. 12:1 i. introduction ms. jones,1 a mother incarcerated at a state prison in florida, sought information about the state’s family regulation system2 from the florida state university college of law gender and family justice clinic (“clinic”).3 she had been convicted of burglary, grand theft, and trafficking in stolen property, and she had over three months left of her one-and-ahalf-year sentence.4 the florida department of children and families (“dcf”) had taken custody of ms. jones’ child, or children, during her incarceration,5 and she was interested in learning more about her rights and responsibilities within the system. the clinic students sent ms. jones a one-page handout and a powerpoint presentation they had developed that included definitions of key legal terms, explained the different stages in the family regulation system, and the rights and responsibilities of parents, the dcf case worker, and the court, during these proceedings.6 a month after sending the package, ms. jones sent the clinic a note of gratitude. in the handwritten letter, she praised the clinic’s work, exclaiming: i must start this with a big thank you for the information packet you sent to me about dependency cases an the steps of it. with that information i was able to get 1 ms. jones authorized me to share her experience in this piece, and i am using only her last name to protect her identity. permission to use volunteer/client/attendee story from ms. jones, workshop attendee, to author (aug. 5, 2020) (on file with author); letter from ms. jones, workshop attendee, to author (aug. 5, 2020) (on file with author). 2 i use “family regulation system” when discussing the legal system that allows a state agency to insert itself into the parenting of children, remove children from their homes, and seek the termination of parental rights. people commonly refer to this system as the foster care, dependency, child welfare, and/or child protective services systems. see dorothy roberts, abolishing policing also means abolishing family regulation, imprint (june 16, 2020), https://imprintnews.org/child-welfare-2/abolishing-policing-also-means-abolishingfamily-regulation/44480 [https://perma.cc/yc6t-6cvm] (critiquing the mislabeling of the “child welfare” system and correcting it to the “family regulation” system to capture governmental agencies’ monitoring of children and of the way people parent their children); dorothy roberts, shattered bonds: the color of child welfare, at vi–x (2002) [hereinafter roberts, shattered bonds] (interrogating “what we now call child protection”); nancy d. polikoff & jane m. spinak, symposium, foreword: strengthened bonds: abolishing the child welfare system and re-envisioning child well being, 11 colum. j. race & l. 427, 431–33 (describing the evolving terminology activists, practitioners, and scholars have used to refer to the system that the state uses to surveil families, intervene to remove children from their homes, and terminate parental rights). 3 from 2019 to 2021, i developed and directed the gender and family justice clinic at florida state university college of law. the clinic addressed the intersection between mass incarceration on families by offering legal outreach and direct legal representation to people who were incarcerated and those who were returning from incarceration. students in the clinic presented monthly educational workshops in florida jails and prisons. i founded and directed the clinic based off the work of professor philip genty at columbia law school. 4 corrections offender network, fla. dep’t. of corrs., http://www.dc.state.fl.us/ offendersearch [https://perma.cc/d5r7-vwwu]. 5 in this piece, i use incarceration and detention interchangeably to describe confinement in local, state, federal, native american, and/or military jail or prison facilities. 6 because of the 2019 novel coronavirus (covid-19) pandemic, students were not able to offer their legal workshops in-person. instead, they mailed their presentation material to women in a local prison who had indicated interest in a particular family topic. in this situation, ms. jones, the recipient of the workshop material the students mailed, had noted she was interested in attending the dependency workshop. 2022] new jim & jane crow intersect 519 the correct forms filed in just the nic of time. without that information they may have tried to rail road me, because i did not know what was truly happening.7 ms. jones was able to apply the legal information the students sent her to advocate for herself and her parental rights. her letter confirmed a success for the clinic: the students had drafted documents that nonlawyers could digest and use. unfortunately, ms. jones’ letter confirmed a systemic failure: the disconnect between mothers who are incarcerated8 and their lawyers in the family regulation system. parents in florida have an absolute right to counsel in all stages of the family regulation process.9 florida courts must appoint a lawyer to any parent who cannot afford to retain counsel,10 and ms. jones would not have earned enough income while incarcerated to be ineligible for appointed counsel. the court should and would have appointed counsel to represent her. yet, ms. jones did not know what was going on in her family regulation case and she felt she needed general information law students drafted to protect her parental rights. ms. jones’ feeling of helplessness exemplifies the difficulties mothers face in attempting to navigate the family regulation system. when mothers are incarcerated and their children are in the family regulation system, the new jim crow and new jane crow intersect to separate and destroy families.11 in the seminal book, the new jim crow, legal scholar and law professor michelle alexander explains how the mass incarceration of black people in the united states, especially through the drug war, is another form of systemic racism and state-sponsored violence, borne out of the history of slavery and jim crow.12 professor alexander uses the term “the new jim crow” to explain the criminal legal system’s racist history and existence.13 7 letter from ms. jones, workshop attendee, to author (may 14, 2020) (on file with author). 8 in recognition of the importance in using less stigmatizing language, throughout this piece, i will use people first language when referring to people who are incarcerated and who have criminal records. as such, i will refer to “mothers who are incarcerated,” instead of “incarcerated mothers” or “inmates, convicts, prisoners and felons.” eddie ellis, ctr. for nuleadership on urb. sols., an open letter to our friends on the question of language 3 (2007), https://static1.squarespace.com/static/58eb0522e6f2e1dfce591dee/t/596 e13f48419c2e5a0e95d30/1500386295291/cnus-language-letter-2016.pdf [https://perma.cc/ jq67-ukhz] (open letter calling on allies to use people first language and to “refer to us as people”); preferred terms for select population groups & communities, ctrs. for disease control & prevention (oct. 6, 2021), https://www.cdc.gov/health communication/preferred_terms.html [https://perma.cc/8ee4-d3tj] (offering nonstigmatizing terms that more closely “reflect and speak to the needs of people in the audience of focus”). 9 fla. stat. § 39.013(1) (2017); fla. r. juv. p. 8.320(a)(1). 10 fla. stat. § 39.013(1) (2017); fla. r. juv. p. 8.320(a)(2). 11 neil bernstein, all alone in the world: children of the incarcerated 4 (2005) (noting “[t]he dissolution of families, the harm to children—and the resultant perpetuation of the cycle of crime and incarceration from one generation to the next—may be the most profound and damaging effect of our current penal structure.”). 12 michelle alexander, the new jim crow: mass incarceration in the age of colorblindness (2010) [hereinafter alexander, the new jim crow]. 13 see id. at 248–49 (applying the analogy of mass incarceration to jim crow as, at the core, “race-making” systems of control). 520 colum. j. race & l. [vol. 12:1 like mass incarceration, the family regulation system separates families and destroys parent-child relationships.14 although legal scholar, civil rights activist, and reverend pauli murray coined the term “jane crow” to identify the intersectional sexism and gender discrimination she endured in the united states in the 1940s,15 the new jane crow describes the way the government punishes women of color, particularly black women, for their poverty and parenting by trapping them in the family regulation system and terminating their parental rights.16 facing these dual racist and discriminatory systems creates additional and unnecessary anxiety, causes confusion, and destroys families. for example, substantial evidence shows that family visits “can reduce recidivism rates, maintain family bonds, foster reintegration into the community, break the intergenerational cycle of incarceration, and help children overcome the challenges of parental separation.”17 yet, rather than nurture the critical mother-child bond, which is beneficial both for the affected families and for society at large, the current systems undermine and break these bonds.18 mothers who are incarcerated must navigate these legal systems to protect their own liberty and parental rights. undoubtedly, all parents face obstacles while navigating the family regulation system and incarceration. one in every twelve child in the united states, which amounts to more than 5.7 million children, has experienced parental incarceration at some point during their childhood.19 including children with parents who have been arrested, that number 14 see dorothy roberts, prison, foster care, and the systemic punishment of black mothers, 59 ucla l. rev. 1474, 1476 (2012) [hereinafter roberts, systemic punishment] (“the simultaneous buildup and operation of the prison and foster care systems rely on the punishment of black mothers, who suffer greatly from the systems’ intersection. . . . the intersection of prison and foster care is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color.”). 15 see pauli murray & mary o. eastwood, jane crow and the law: sex discrimination and title vii, 34 geo. wash. l. rev. 232 (1965); jane crow & the story of pauli murray, smithsonian nat’l museum of afr. am. hist. & culture, https:// nmaahc.si.edu/blog-post/jane-crow-story-pauli-murray [https://perma.cc/m4j5-r6kw]. 16 see, e.g., stephanie clifford & jessica silver-greenberg, foster care as punishment: the new reality of ‘jane crow’, n.y. times (july 21, 2017), https://www. nytimes.com/2017/07/21/nyregion/foster-care-nyc-jane-crow.html [https://perma.cc/le92fukn] (citing lawyers who use “jane crow” to name the criminalization of the parenting of black women in poverty). 17 carla laroche et al., double sentence: the consequences incarcerated mothers face and the impact on their children, in the state of criminal justice 207 (mark e. wojcik ed., 2016) (citations omitted). 18 erin cloud et al., family defense in the age of black lives matter, 20 cuny l. rev. f. 68, 85–87 (2017). 19 kara gotsch, families and mass incarceration, sentencing project (apr. 24, 2018), https://www.sentencingproject.org/publications/6148 [https://perma.cc/ml54-7579] (citing the child & adolescent health measurement initiative based out of the john hopkins bloomberg school of public health). about half of parents in prison lived with their children before their arrest or incarceration, and similar proportions of parents served as the primary source of financial support for their children. id. (citing the children’s bureau of the department of health and human services). for related data on the consequences of parental incarceration, see annie e. casey found., policy report, a shared sentence 1 (2016) [hereinafter a shared sentence], http://www.aecf.org/m/resourcedoc/aecfasharedsentence-2016.pdf [https://perma.cc/gtj3-wtdn]; dan levin, as more mothers fill prisons, children suffer ‘a primal wound’, n.y. times (dec. 28, 2019), https://www. nytimes.com/2019/12/28/us/prison-mothers-children.html [https://perma.cc/q5h3-pzdr]. 2022] new jim & jane crow intersect 521 jumps to ten million children.20 over 14,000 children entered the family regulation system because of a parent’s incarceration in 2009, though the u.s. department of health and human services, which collected this data, admitted that this number is an undercount.21 this piece focuses on mothers specifically because of their higher rates of ensnarement in the family regulation system.22 while mothers who are incarcerated reflect only 8% of parents who are imprisoned in federal and state prisons, the rate of imprisonment of mothers has increased at a faster rate than that of fathers, 122% versus 76%, respectively.23 over 217,270 women are currently incarcerated,24 and almost one million women are under post-release supervision.25 nearly 80% of women in jails,26 and almost 60% of women in state prisons,27 are mothers of minor children. as of 2004, of the over 1.4 million children with parents who are incarcerated in state prisons, at least 11% of them with mothers in state prison are placed in the family regulation system, compared to 2% of children with fathers in state prison.28 black and indigenous and native american women are overrepresented in detention facilities, and their children endure the consequences of these racist and sexist systems.29 while black women 20 eric martin, hidden consequences: the impact of incarceration on dependent children, in 278 nat’l inst. of just. j. 11, 12 (ncj no. 250342, 2017), https://nij.ojp.gov/topics/articles/hidden-consequences-impact-incarceration-dependentchildren [https://perma.cc/6bzy-anev]. 21 u.s. gov’t accountability off., gao-11-863, child welfare: more information and collaboration could promote ties between foster care children and their incarcerated parents 11 (2011), https://www.gao.gov/products/gao11-863 [https://perma.cc/a2k9-f3nc]. 22 cf. id. at 7 (observing that mothers who are incarcerated are more likely than fathers who are incarcerated to be children’s primary caretakers before incarceration); id. at 16–17 (pointing to evidence that a higher percentage of mothers than fathers have at least one child in foster care); child. bureau, u.s. dep’t of health and hum. servs., child welfare practice with families affected by parental incarceration 3 (2021) [hereinafter affected by parental incarceration], https://www.childwelfare.gov/ pubpdfs/parental_incarceration.pdf [https://perma.cc/r3gc-99py] (noting that living arrangements for children of mothers who are incarcerated were more likely to include placements within the family regulation system or with nonparental family members). 23 affected by parental incarceration, supra note 22, at 3. 24 aleks kajstura, women’s mass incarceration: the whole pie 2019, prison pol’y initiative (oct. 29, 2019), https://www.prisonpolicy.org/reports/pie2019women.html [https://perma.cc/k86g-vq4t]. the report noted that the united states has 231,000 women and girls currently incarcerated. of that total, 217,270 are adult women held in local jails (101,000), state prisons (99,000), federal prisons and jails (16,000), territorial prisons (500), indian country jails (700), and military prison (30). 25 sentencing project, incarcerated women and girls 1 (2020), https://www. sentencingproject.org/publications/incarcerated-women-and-girls [https://perma.cc/6a4d9apu] [hereinafter sentencing project, incarcerated women and girls] (analyzing data from the u.s. department of justice’s bureau of justice statistics). 26 elizabeth swavola et al., vera inst. of just., overlooked: women and jails in an era of reform 7 (2016), http://www.safetyandjusticechallenge.org/wp-content/ uploads/2016/08/overlooked-women-in-jails-report-web.pdf [https://perma.cc/6pvx-wa9r]. 27 sentencing project, incarcerated women and girls, supra note 25, at 1; a shared sentence, supra note 19, at 2. 28 lauren e. glaze & laura m. maruschak, bureau of just. stats., u.s. dep’t of just., ncj no. 111984, parents in prison and their minor children 5 (2010), https://bjs.ojp.gov/content/pub/pdf/pptmc.pdf [https://perma.cc/t3tk-6cl7]. 29 see kajstura, supra note 24 (showing sharp disparity in incarceration rates). 522 colum. j. race & l. [vol. 12:1 make up 12.9% of women in the united states, and indigenous and native american women make up 0.7% of women,30 black women and indigenous and native american women make up 29% and 2.5% of women who are incarcerated, respectively.31 additionally, research has shown that black and latinx children are affected disproportionately by the incarceration of their parent; one study found that black children were 7.5 times more likely than white children to have a parent who was incarcerated and latinx children were 2.3 times more likely to have a parent who was incarcerated than white children.32 understanding the legal path from a mother’s incarceration to the termination of a mother’s rights requires an investigation of the challenges their legal counsel face. mothers in detention should be able to refer to their appointed lawyer for guidance and case strategy. family defense lawyers are supposed to offer information, advocacy, and support to mothers navigating the child welfare system;33 mothers in detention, however, may not have access to those benefits. in the criminal legal system, courts must appoint lawyers to people accused of a felony who cannot afford private counsel.34 in the family regulation system, the u.s. supreme court has held that no federal constitutional right to counsel exists.35 family law scholars and advocates have expressed the importance of providing counsel to parents in the family regulation system, especially parents who are incarcerated, because of the system’s complexities.36 this piece establishes, however, that when 30 women of color in the united states (quick take), catalyst (jan. 31, 2022), https://www.catalyst.org/research/women-of-color-in-the-united-states [https://perma.cc/ 2jn6-9fkk]. the researchers cite “american indian and alaskan native” people in their data. as legal scholar marissa jackson sow has explained, “i define indigenous peoples as those nations and communities of people who were the earliest inhabitants of the americas. indigenous american peoples are not a race, but rather nations of people who have been racialized. . . . recognize that a person may be black, latinx, and indigenous all at once, and that mixed european ancestry is also a part of the black and indigenous experience. such is the nature of race and race-ing.” marissa jackson sow, whiteness as contract, 78 wash. & lee l. rev. 1803, 1812 (2022). 31 kajstura, supra note 24. the data cites “american indian and alaskan native.” 32 martin, supra note 20, at 2 (describing the studies that demonstrate the racial disparity within the family regulation system). 33 martin guggenheim, the role of counsel in representing parents, 35 a.b.a. child. l. prac. 17, 23 (2016) (noting the importance of parents in the family regulation system having a strong legal advocate who values the parents’ opinions). 34 gideon v. wainwright, 372 u.s. 335 (1963). the realities of the right to counsel in criminal cases have received increased critique. see, e.g., karen houppert, chasing gideon: the elusive quest for poor people’s justice (2015) (discussing structural deficiencies in representation provided to people under the right to counsel guarantee in criminal cases); 6ac & our work, sixth amendment ctr., https://sixthamendment.org/ [https://perma.cc/65td-tk7f] (summarizing the center’s work of measuring the “time, ability and resources” of public defense people against “established standards of justice”). 35 lassiter v. dep’t of soc. servs., 452 u.s. 18 (1981) (holding no due process violation when a state does not appoint counsel when a person’s physical liberty is not at stake). 36 philip m. genty, procedural due process rights of incarcerated parents in termination of parental rights proceedings: a fifty state analysis, 30 j. fam. l. 757, 781 (1991); julie kowitz margolies & tamar kraft-stolar, women in prison project, correctional ass’n of n.y., when “free” means losing your mother: the collision of child welfare and the incarceration of women in new york state 10–14 (2006), https://repositories.lib.utexas.edu/handle/2152/15159 [https://perma.cc/vm4r-rcsu]. 2022] new jim & jane crow intersect 523 mothers must navigate both systems, the protections appointed parents’ counsel are supposed to provide are weakened, especially for mothers of color within the carceral state. appointed lawyers cannot properly defend the due process rights of mothers who are incarcerated because of the added challenges both mothers and their lawyers face. as a result, families are destined to experience trauma, and are likely to end with the termination of parental rights. part i of this piece discusses the rise in the rate of women who are incarcerated in the united states, summarizes the family regulation system’s legal structure, and explains the harms that the criminal legal system and family regulation system have on mothers. part ii explains the challenges inherent in parents’ counsel’s representation of mothers who are both incarcerated and ensnared in the family regulation system, and examines the negative outcomes mothers who are incarcerated endure because their counsel must navigate numerous challenges. part iii offers recommendations to address these critical issues and demands a reduction in the number of mothers who are incarcerated and in the family regulation system. ultimately, this piece concludes by stressing the need to consider the obstacles that exist when addressing access to counsel for mothers in the family regulation system. the challenges parents’ counsel face, and their need for better resources, are not new ideas. this piece adds to the existing literature by showing how the new jim crow and new jane crow impose too many obstacles for parents’ lawyers to fulfill their promise, particularly when representing black mothers. serving the legal interests of parents in the family regulation system is demanding and critical work. this piece neither advocates for the elimination of that access nor attacks parents’ counsel but, rather, shines a new light on the latent defects in the state’s provision of access to appointed counsel, acutely when their clients are mothers who are incarcerated. the carceral state’s control does not enable parents’ counsel to defend the parental rights of mothers who are incarcerated effectively. ii. the new jim crow & the new jane crow: background while the discussion of mass incarceration in the united states has focused on men, over the past forty years, the rate of incarceration of women has increased by over 700%.37 comparatively, this rate is at least 50% higher than the rate of increased incarceration of men during that same period.38 as activists have focused on the high number of men 37 kajstura, supra note 24; nazish dholakia, women’s incarceration rates are skyrocketing. these advocates are trying to change that, vera inst. of just. (may 17, 2021), https://www.vera.org/news/womens-voices/womens-incarceration-rates-areskyrocketing [https://perma.cc/d7pt-m8ry] (citing the sentencing project’s finding that between 1980 and 2019, the number of women who are incarcerated increased from 26,378 to 222,455); bonnie sultan & mark myrent, women and girls in corrections, just. rsch. & stat. assoc. (nov. 2020), https://www.jrsa.org/pubs/factsheets/jrsa-factsheet-women-girlsin-corrections.pdf [https://perma.cc/rzb6-hgx6] (same). 38 united states still has highest incarceration rate in the world, equal just. initiative (apr. 26, 2019), https://eji.org/news/united-states-still-has-highest-incarcerationrate-world/ [https://perma.cc/f4mq-9z6b ] (citing analysis by the sentencing project of data released by the bureau of justice statistics); wendy sawyer & peter wagner, mass 524 colum. j. race & l. [vol. 12:1 ensnared in the criminal legal system,39 principally of black men, they have largely ignored the increasing population of women in the system. scholars and activists alike have ignored the gendered nature of the new jim crow. although professor michelle alexander has received acclaim for the new jim crow, she has admitted that she ignored gender in her analysis of the criminal legal system as an inherently oppressive institution. in 2016, for example, professor alexander explained: in my book, i stated explicitly in the introduction that i had no intention of exploring in any depth the unique experience of women. . . . i have become increasingly alarmed in recent years about the many ways in which women and girls are routinely marginalized and rendered invisible in public debates about criminal justice reform and mass incarceration—and i have been painfully aware of my own complicity.40 this part discusses the ways the criminal legal system ensnares women in the system, the statutory framework mothers who are incarcerated must navigate when the state places their children into the family regulation system during their detention, and the resulting effect these interconnected legal systems have on controlling mothers, predominantly mothers of color. a. the new jim crow & gender over 217,000 women are currently incarcerated in federal and state prisons and jails around the country.41 as professor michele goodwin has theorized, “if pauli murray were alive today, she too might call this the new jane crow — a modern adaptation of the intersectionality to which she referred to in the 1940s to describe the unyielding, state-sanctioned incarceration: the whole pie 2020, prison pol’y initiative (mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.cc/vx7f-3fp4]. analyses have shown that the rate of incarceration of women has been up to two times the rate of incarceration of men, particularly in state prisons and local jails. wendy sawyer, the gender divide: tracking women’s state prison growth, prison pol’y initiative [hereinafter sawyer, the gender divide] (jan. 9, 2018), https://www.prisonpolicy.org/reports/ women_overtime.html [https://perma.cc/7ywh-uln7]; u.s. comm’n civil rts., women in prison: seeking justice behind bars 9–14, 10 n.18 (feb. 2020), https://www.usccr.gov/ files/pubs/2020/02-26-women-in-prison.pdf [https://perma.cc/e62j-36nx] (agency’s briefing report on the civil rights of women who are incarcerated); wendy sawyer & peter wagner, mass incarceration: the whole pie 2022, prison pol’y initiative (mar. 14, 2022), https://www.prisonpolicy.org/reports/pie2022.html [https://perma.cc/5h9d-bg7g] (noting the gender disparity in rate of incarceration and stressing that policymakers not further the disparity when implementing criminal legal system reforms). 39 men make up ninety-two percent of people in jails and prisons in the united states. e. ann carson, bureau of just. stats., u.s. dep’t of just., ncj no. 111984, prisoners in 2019, at 3 (2020), https://bjs.ojp.gov/content/pub/pdf/p19.pdf [https://perma.cc/ bs7u-cjw9]. 40 kristi dilallo, understanding the needs of women in the justice system, vera inst. of just. (dec. 9, 2016), https://www.vera.org/blog/understanding-the-needs-of-womenin-the-justice-system [https://perma.cc/bdp5-bhnu] (quoting incarcerated woman: the experience of women and girls in the era of mass incarceration, union theological seminary (oct. 18, 2016), https://utsnyc.edu/invisible-woman-the-experience-of-womenand-girls-in-the-era-of-mass-incarceration/ [https://perma.cc/2xaa-xkn3]. 41 kajstura, supra note 24. 2022] new jim & jane crow intersect 525 violence against black women.”42 a review of the racial data proves that women of color represent a higher proportion of women who are incarcerated than their total population representation.43 in 2019, for example, black women’s rate of imprisonment in state and federal facilities was 1.7 times the rate of imprisonment for white women, and latina/hispanic women’s rate of imprisonment was 1.3 times the rate of imprisonment for white women.44 in comparing the types of offenses men and women are tried for and convicted of, the data indicates that women are incarcerated at a higher rate for drug and property crimes than men.45 scholars consider many of these convictions a result of crimes of necessity or survival crimes.46 over half of the women currently incarcerated are held in jails, and 54% of those women are awaiting trial.47 many women who are detained are less likely to be able to afford to pay money bail, a problem resulting from and perpetuated by numerous systemic issues.48 importantly, women of color are affected more by lack of income than other groups; the median pre-incarceration income for latina/hispanic women ($11,820) and black women ($12,735) in state prison is considerably less than that of white 42 michele goodwin, the new jane crow: women’s mass incarceration, just security (july 20, 2020), https://www.justsecurity.org/71509/the-new-jane-crow-womensmass-incarceration [https://perma.cc/98e7-fqpb]. see generally valena beety, manifesting justice: wrongly convicted women reclaim their rights (2022) (describing how people in different roles in law enforcement and the criminal legal system subjugate black women and girls, especially members of the lgbtq+ community). 43 see supra notes 29–31 and accompanying text; cf. women of color in the u.s. (quick take), supra note 30; william y. chin, racial cumulative disadvantage: the cumulative effects of racial bias at multiple decision points in the criminal justice system, 6 wake forest j. l. & pol’y 441, 446 (2016) (“a study of race and gender in sentencing indicated that favoritism toward white women helped explain their lower sentences, whereas bias against black men helped explain their higher sentences. in the federal criminal justice system, the prison sentences of black offenders are five months longer than similarly situated white offenders.”) (citations omitted). 44 carson, supra note 39, at 16. 45 sentencing project, incarcerated women and girls, supra note 25, at 4 (“twenty-six percent of women in prison have been convicted of a drug offense, compared to 13% of men in prison; 24% of incarcerated women have been convicted of a property crime, compared to 16% among incarcerated men.”). 46 see, e.g., beth e. richie, the social impact of mass incarceration on women, in invisible punishment: the collateral consequences of mass imprisonment 138–39 (marc mauer & meda chesney-lind eds., 2002) (positing that the incarceration of women for “nonviolent, economically motivated drug-related offenses” is “decidedly gendered . . . ‘survival crimes’” committed to protect themselves against “brutal social conditions”); deseriee a. kennedy, children, parents & the state: the construction of a new family ideology, 26 berkeley j. gender, l. & just. 78, 89 (2011) [hereinafter kennedy, children, parents, & the state] (presenting research showing that women commit “‘survival crimes’— acts made necessary by poverty . . . . related to their status as a single mother[] and their efforts to provide for their families,” such as non-violent drug offenses or “financial misdeeds”); yvette butler, survival labor (jan. 2022) (unpublished manuscript) (on file with author) (defining survival crimes and examining the reasons people engage in survival labor). 47 kajstura, supra note 24; sawyer, the gender divide, supra note 38 (sidebar on “the role of local jails”). 48 sawyer, the gender divide, supra note 38 (sidebar on “the role of local jails”); bernadette rabuy & daniel kopf, detaining the poor: how money bail perpetuates an endless cycle of poverty and jail time, prison pol’y initiative (may 10, 2016), https://www.prisonpolicy.org/reports/incomejails.html [https://perma.cc/6jhr-u8ec]. 526 colum. j. race & l. [vol. 12:1 women ($15,480) and black men ($17,625), hispanic/latino men ($19,740), and white men ($21,975) in state prison.49 as one report describing texas’ increased rate of the incarceration of women explains, “the combined result of this wealth disparity and texas’ money based bail system is that women like sandra bland — women with needs that should be addressed in other settings — are sitting in texas jails, not because they are a threat to public safety, but because they simply cannot afford to post bail.”50 without the funds to return to their communities while their case is pending, they sit in jail “[a]nd their incentives to take [a ‘time-served’ or probation plea] deal are overwhelming.”51 along with less wealth, women who are incarcerated have lower levels of educational attainment than women in the general public. women who are incarcerated are more likely to have general educational development (“ged”) certification rather than high school diplomas, particularly as their highest level of education.52 thirty-seven percent of women in prison do not have a high school diploma compared to only 14% of women in the general population.53 analyzing the data by gender and race, 42% of black women, 52% of hispanic women, and 29% of white women who are incarcerated did not graduate from high school, compared to 17% of black women, 35% of hispanic women, and 9% of white women in the general public.54 further, women who are incarcerated reported a high rate of experiencing trauma both in childhood and after the age of eighteen.55 one study found, “[a] large number of [respondents] reported having been 49 wendy sawyer & peter wagner, mass incarceration: the whole pie 2020, prison pol’y initiative (mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.cc/vx7f-3fp4]. 50 lindsey linder, a growing population: the surge of women into texas’ criminal justice system, tex. crim. just. coal. 7 (2018), https://s3.documentcloud.org/documents/ 4446721/tcjc-womens-report-part-i.pdf [https://perma.cc/7kq6-5ucj]. sandra bland, a twenty-eight-year-old black woman, was found dead in her cell after a traffic stop and subsequent arrest for allegedly assaulting an officer in 2015. after an autopsy, the medical examiner ruled her death a suicide. david montgomery & michael wines, autopsy of sandra bland finds injuries consistent with suicide, prosecutor says, n.y. times (july 23, 2015), https://www.nytimes.com/2015/07/24/us/autopsy-of-sandra-bland-finds-injuries-consistentwith-suicide-prosecutor-says.html [https://perma.cc/5ust-zyg9]. 51 paul heaton et al., the downstream consequences of misdemeanor pretrial detention, 69 stan. l. rev. 711, 715–16 (2017). cf. anjelica hendricks, exposing police misconduct in pre-trial criminal proceedings, 24 n.y.u. j. legis. & pub. pol’y 177 (2021) (discussing the need to consider police misconduct in pre-trial, pre-plea motions and proceedings, such as bail hearings). 52 stephanie ewert & tara wildhagen, educational characteristics of prisoners: data from the acs 17–19 (u.s. census bureau, working paper no. sehsd-wp2011-08, 2011). 53 id. at 17. 54 id. at app. tbl. 6. 55 zina t. mcgee et al., from the inside: patterns of coping and adjustment among women in prison, in it’s a crime: women & justice 507, 515 (roslyn muraskin ed., 4th ed. 2007); see also aclu et al., caught in the net: the impact of drug policies on women and families 18 (2005) [hereinafter caught in the net] (stating that approximately 79% of women reported physical abuse and over 60% reported experiencing sexual abuse prior to their incarceration in federal and state prisons). 2022] new jim & jane crow intersect 527 physically or sexually abused before their incarceration (70%).”56 in addition, the rate of sexual and domestic violence as a child is higher for women than men in detention.57 moreover, black58 and native american59 women experience higher rates of sexual and physical assaults than white women. b. the new jane crow’s framework while dealing with these traumas, women who are incarcerated face numerous other challenges, including the risk of the state terminating their parental rights.60 as former u.s. attorney general loretta e. lynch once remarked, “we know that when we incarcerate a woman we often are truly incarcerating a family, in terms of the far reaching effect on her children, her community and her entire family network.”61 although some children are cared for through private custody arrangements during their mothers’ imprisonment, many children enter the family regulation system.62 researchers have estimated that forty percent of children who experience out-of-home care within the family regulation system also have a history of parental incarceration.63 56 mcgee et al., supra note 55, at 515. 57 id.; see also caught in the net, supra note 55, at 18 (citing data from the bureau of justice statistics). 58 see, e.g., nat’l ctr. on violence against women in the black cmty., black women and sexual assault 1 (oct. 2018) https://ujimacommunity.org/wp-content/ uploads/2018/12/ujima-womens-violence-stats-v7.4-1.pdf [https://perma.cc/89q9-rzru] (noting u.s. department of justice research indicating that one in five black women are survivors of rape). cf. asha dumonthier et al., inst. for women’s pol’y rsch., the status of black women in the united states 120 (july 13, 2017), https://iwpr.org/wpcontent/uploads/2020/08/the-status-of-black-women-6.26.17.pdf [https://perma.cc/pv52hebg] (confirming that black women endure “substantially higher rates of psychological aggression than women overall”). the report also explains that black lgbtq individuals, especially when they are survivors of violence, face “heightened discrimination from law enforcement.” id. at 126. 59 see, e.g., andré b. rosay, violence against american indian and alaska native women and men, in 277 nat’l inst. just. j. 38, 39 (ncj no. 249822, 2016) (reporting study findings that over 84% of american indian and alaska native women have experienced sexual violence, physical violence by an intimate partner, stalking, and/or psychological aggression by an intimate partner in their lifetime). cf. dumonthier et al., supra note 58, at 98 (finding that native american women have reported the highest rate of poor mental health days and the highest suicide mortality rate among women). notably, data show that non-native people are responsible for 96% of sexual violence that american indian and alaska native women have endured. nat’l cong. am. indians, research policy update: violence against american indian and alaska native women 2 (feb. 2018), https://www.ncai.org/policy-research-center/research-data/prc-publications/vawa_data_ brief__final_2_1_2018.pdf [https://perma.cc/2365-uk5h]. 60 margolies & kraft-stolar, supra note 36, at 3, 15–18. 61 attorney general loretta e. lynch delivers remarks at the white house women and the criminal justice system convening, u.s. dep’t of just. (mar. 30, 2016), https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarkswhite-house-women-and-criminal-justice [https://perma.cc/t7na-wxqb]. 62 see christopher j. mumola, bureau of just. stats., u.s. dep’t of just., ncj no. 182335, incarcerated parents and their children 3–4 (2000), http://bjs.ojp.usdoj.gov/content/pub/pdf/iptc.pdf [https://perma.cc/trk9-eqdl] (presenting data showing that mothers in both federal and state prisons were more likely than fathers to report that their children were in the family regulation system); kennedy, children, parents, & the state, supra note 46, at 81 (highlighting how parents and children face the trauma of family separation and the risk of parental termination by the state). 63 affected by parental incarceration, supra note 22, at 4. 528 colum. j. race & l. [vol. 12:1 mothers in the criminal legal system are more likely to have been their family’s primary parental support, and as likely to have been their children’s primary financial support, prior to their incarceration.64 when fathers are incarcerated, their children continue to live with, or go to live with, their mothers.65 when mothers are incarcerated, however, their children are significantly more likely to live with another relative or friend or enter the family regulation system.66 these mothers are not able to activate the same sort of support from their children’s other parent or other family and family friends as fathers are, which reduces their ability to ensure their children remain in private care.67 even when a nonparent relative takes care of their children, they may need additional services and financial support from the state.68 these relatives may want to keep the mothers’ children together and with them, but may be hesitant to request additional involvement from the state to do so.69 instead of a private custody arrangement that does not involve the state, a child may be in the family regulation system, but within a nonparent relative’s care, which is known as a kinship placement.70 a child with a mother who is incarcerated may be exposed to the family regulation system in one of four ways: [1.] a parental arrest coincides with child welfare system involvement, with either the arrest exposing maltreatment (more likely) or a maltreatment investigation resulting in a parental arrest (less likely). [2.] the criminal record of the parent has been found to compromise the child’s safety. [3.] relatives who are considered as placement possibilities are found to have criminal records. 64 see glaze & maruschak, supra note 28, at 5 (reporting survey results on mothers and fathers incarcerated in state prisons). 65 mumola, supra note 62, at 4 (observing that nearly all—over ninety percent—of fathers in both federal and state prisons reported that at least one of their children was in the care of the child’s mother). 66 id.; see also ronnie halperin & jennifer l. harris, parental rights of incarcerated mothers with children in foster care: a policy vacuum, 30 feminist stud. 339, 340 (2004) (remarking on the high number of mothers who are incarcerated who had children in nonrelative foster care places). 67 see roberts, systemic punishment, supra note 14, at 1480–83 (explaining the many reasons why black mothers’ incarceration leads to higher involvement in the family regulation system than black fathers’ incarceration). 68 see affected by parental incarceration, supra note 22, at 6, 15 (reporting that kinship caregivers have indicated the need for an array of financial, legal, and medical services, but may find it risky or difficult to obtain them through the family regulation system); see also generally josh gupta-kaga, america’s hidden foster care system, 72 stan. l. rev. 841, (2020) (arguing that informal custody arrangements that involve the state, but do not require state oversight, raise constitutional and policy concerns). 69 affected by parental incarceration, supra note 22, at 15. 70 see child. bureau, u.s. dep’t of health & hum. servs., placement of children with relatives 1–2 (2018), https://www.childwelfare.gov/pubpdfs/ placement.pdf [https://perma.cc/zj76-2dwb] (describing the roles and responsibilities of state agencies and family members under kinship placements). 2022] new jim & jane crow intersect 529 [4.] a child whose parent or parents are already incarcerated no longer has a safe living arrangement (e.g., a temporary caregiver has decided he or she is no longer willing or able to care for a child).71 only three percent of children referred to the state for investigation occurs because of criminal allegations related to a parent’s or other individual’s parental child abuse or neglect of a child.72 when children are in the family regulation system, the state becomes the source of custody and oversight, taking over the mothers’ fundamental right to parent their children.73 congress enacted the adoption and safe families act (“asfa”)74 in 1997 to provide more permanency for children in the family regulation system and regulate care of children in the system. instead, the law has led to a marked increase in the termination of parental rights.75 with some exceptions, asfa requires states to seek the termination of parents’ rights if children have spent fifteen out of the last twenty-two months in state custody.76 states have enacted laws implementing asfa’s edict.77 some states have established shorter timeframes than those prescribed in asfa.78 when children are under the state’s oversight, asfa requires the state to develop a case plan for each child and to make reasonable efforts to reunify the family.79 the term “reasonable efforts” is broad and generally means providing “accessible, available, and culturally appropriate services that are designed to improve the capacity of families to provide safe and stable homes for their children.”80 mothers who are incarcerated must comply with these services as listed in court-imposed case plans that the 71 affected by parental incarceration, supra note 22, at 4. 72 id. at 4. even allegations of neglect relate to a family’s economic hardship, rather than “willful withholding of a child’s needs.” steve volk, the fight to keep families together in child welfare, next city (nov. 15, 2021), https://nextcity.org/features/view/the-fight-tokeep-families-together-in-child-welfare [https://perma.cc/6nsc-uk64]. 73 see meyer v. nebraska, 262 u.s. 390 (1923); pierce v. society of sisters, 268 u.s. 510 (1925); prince v. massachusetts, 321 u.s. 158 (1944). 74 adoption and safe families act of 1997, pub. l. no. 105-89, 111 stat. 2115 (codified as amended in scattered sections of 42 u.s.c.). 75 deseriee a. kennedy, “the good mother”: mothering, feminism, and incarceration, 18 wm. & mary j. women & l. 161, 174–76 (2012) [hereinafter kennedy, the good mother]. 76 adoption and safe families act, supra note 74, at §§ 675(5)(e)(i)-(iii). 77 see child. bureau, u.s. dep’t of health & hum. servs., grounds for involuntary termination of parental rights 3 (2017) [hereinafter grounds for involuntary termination], https://www.childwelfare.gov/pubpdfs/groundtermin.pdf [https://perma.cc/u6ca-6ldj]. 78 id. at 3. on the opposite end, several states, including colorado, nebraska, new mexico, new york, oklahoma, vermont, and washington, allow courts to delay the termination of parental rights when a child is in the family regulation system. laroche et al., supra note 17; julie poehlmann et al., children’s contact with their incarcerated parents research findings and recommendations, 65 am. psych. 575 (2010). 79 stephanie sherry, note, when jail fails: amending the asfa to reduce its negative impact on children of incarcerated parents, 48 fam. ct. rev. 380, 383 (2010). 80 child. bureau, u.s. dep’t. of health & hum. servs. reasonable efforts to preserve or reunify families and achieve permanency for children, 2 (2020), https://www.childwelfare.gov/pubpdfs/reunify.pdf [https://perma.cc/68gh-mbba]. 530 colum. j. race & l. [vol. 12:1 court reviews regularly. state caseworkers should ensure mothers can access these mandated services, though only a handful of states require caseworkers to make a proactive effort.81 under asfa, if the state has proved reasonable efforts and believes reunification is not possible, the state may seek to terminate the parents’ parental rights. applying a clear and convincing standard of proof,82 courts will balance several factors when determining whether to terminate parental rights, and will consider the best interests of the child.83 like reasonable efforts, “best interests” does not have a unified definition, but it includes “factors related to the child’s circumstances and the parent or caregiver’s circumstances and capacity to parent, with the child’s ultimate safety and well-being the paramount concern.”84 courts may authorize the termination of mothers’ parental rights because they “consider [it] in a child’s best interests not to wait for his or her mother’s release to have a stable family life.”85 along with citing child abuse and neglect as grounds for termination, over half the states authorize the termination of rights when the parent must serve a long sentence and the child is placed in the state’s care.86 according to the national conference of state legislatures, the average sentence for parents who are incarcerated is between 80 and 100 months.87 a 1997 report by the bureau of justice statistics, within the u.s. department of justice, calculated that the average maximum sentence length for women in state prison is 94 months.88 in federal prison, it is 83 months.89 over 72% of women in state prison and 69% of women in federal prison are serving a sentence of 36 months or more.90 because of these long sentences, which researchers have “attributed in part to lengthy 81 arkansas, for example, includes involving parents who are incarcerated in case planning, in their reasonable efforts requirements. ark. ann. code § 9-27-303. see also reasonable efforts requirements for new york, soc. serv. law § 384-b(7)(f); and florida, § 39.6021. 82 stantosky v. kramer, 455 u.s. 745, 756 (1982) (“this court has mandated an intermediate standard of proof, clear and convincing evidence, when the individual interests at stake in a state proceeding are both particularly important and more substantial than mere loss of money. [t]he court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with a significant deprivation of liberty or stigma.”). 83 child. bureau, u.s. dep’t of health & hum. servs. determining the best interest of the child 2–4 (2020) [hereinafter determining best interest], https://www.childwelfare.gov/pubpdfs/best_interest.pdf [https://perma.cc/68nt-7ezt]; stantosky, 455 u.s. at 759–60 (describing the factors the court should consider and process the court should undertake when making its determination). 84 determining best interest, supra note 83, at 2. 85 roberts, systemic punishment, supra note 14, at 1497 (summarizing cases where courts questioned the mothers’ ability to reunify with their children if released and then terminated their parental rights). 86 grounds for involuntary termination, supra note 77. twenty-seven states allow the termination of rights when a parent has a long-term sentence and the child must enter state custody. 87 steve christian, children of incarcerated parents, nat’l conf. of st. legs. 5 (2009), https://www.ncsl.org/documents/cyf/childrenofincarceratedparents.pdf [https:// perma.cc/umk3-2hrj]. 88 mumola, supra note 62, at tbl. 8. 89 id. 90 id. 2022] new jim & jane crow intersect 531 mandatory minimum sentences for common, nonviolent offenses,” mothers who are imprisoned have a hard time disputing the fifteen-out-of-twentytwo-month reunification requirement under asfa.91 when considering the offenses that lead to confinement, parents who are incarcerated for reasons unrelated to their parenting are more likely to lose their parental rights than parents accused of physically or sexually assaulting their children.92 unfortunately, “one out of every eight incarcerated parents loses their parental rights, regardless of the seriousness of the offenses.”93 further, courts terminate the parental rights of mothers who are incarcerated at a higher rate than those of fathers in detention.94 to terminate a mother’s parental rights means the mother-child relationship no longer exists, at least on paper.95 to the court and according to the law, that mother is no longer the child’s parent.96 because of its finality and destruction of the mother-child relationship, courts, advocates, practitioners, and scholars have come to label the termination of parental rights as “the civil death penalty.”97 this legal fiction, created by asfa and the family regulation system, has decimated families of color.98 in new york city in march 2021, for example, of the approximately 7,900 children the administration for children’s services (“acs”)99 separated from their parents, eight-seven 91 affected by parental incarceration, supra note 22, at 6; ann farmer, mothers in prison losing all parental rights, women’s enews (june 21, 2002) https://womensenews.org/2002/06/mothers-prison-losing-all-parental-rights [https://perma. cc/w7uc-c3el] (noting that mothers face sentences higher than the asfa timeline and describing one mother’s loss of her child because of that timeline). 92 id.; eli hager & anna flagg, how incarcerated parents are losing their children forever, marshall project (dec. 2, 2018), https://www.themarshallproject.org/ 2018/12/03/how-incarcerated-parents-are-losing-their-children-forever [https://perma.cc/ 9d8n-nmj6]. 93 affected by parental incarceration, supra note 22, at 6. 94 hager & flagg, supra note 92. 95 lisa sangoi, “whatever they do, i’m her comfort, i’m her protector.” how the foster system has become ground zero for the u.s. drug war, movement for fam. power 10 (2020), https://drugpolicy.org/resource/mfpreport [https://perma.cc/j8tm-d7xb] (“the foster system holds perhaps the greatest power a state can exercise over its people: the power to forcibly take children away from parents and permanently sever parent-child relationships.”). 96 volk, supra note 72. 97 cloud et al., supra note 18, at 85 n.63 (quoting court opinions that mention “civil death penalty” as another name for the termination of parental rights); the problem, movement for fam. power, https://www.movementforfamilypower.org/new-page-2 [https://perma.cc/lmd3-b9sn] (noting that parents and families know parental termination as the civil death penalty) (last visited july 6, 2022). 98 recently the american bar association passed a policy resolution urging legal professionals to learn about and work against the “anti-black systemic racism within the child welfare system, stemming from the history of slavery in the united states and perpetuated by over-surveillance of and under-investment in black families in america, which is pervasive, ongoing, and a root cause of the disproportionate involvement of black parents and children within the system.” a.b.a., resolution 606 (aug. 2022), https://www.americanbar.org/content/dam/aba/administrative/news/2022/08/hodresolutions/606.pdf [https://perma.cc/r85t-hujg]. 99 acs is the new york city agency responsible for overseeing the programming and services for parents, children, and families related to the family regulation system. 532 colum. j. race & l. [vol. 12:1 percent were black or latino.100 “black children in foster care are significantly less likely than their white counterparts to be adopted once they are ‘freed.’ these children have lost their parents (and often their siblings as well) without achieving the ‘permanency’ at which asfa was purportedly aimed.”101 the new jane crow, just like the new jim crow, causes lasting trauma for families of color. iii. tattered access to effective parents’ counsel although the u.s. supreme court held in gideon v. wainwright102 that people have a right to counsel in criminal cases through the u.s. constitution, the court declined to extend such a blanket right to parents in family regulation system cases.103 in lassiter v. department of social services, a mother who was incarcerated, abby gail lassiter, argued that the trial court erred in not appointing any counsel for her during the hearing to terminate her parental rights and that the trial court violated the due process clause of the fourteenth amendment of the u.s. constitution.104 the u.s. supreme court ruled against ms. lassiter, holding that parents did not have a right to counsel in family regulation cases.105 even though the supreme court has yet to require stateappointment of counsel, some states have authorized the appointment of parents’ counsel in some or all family regulation cases through legislation and case law. eligibility and timing vary by state.106 for example, in florida, parents who cannot afford to hire private counsel have an absolute right to appointed counsel in all stages of the family regulation proceedings.107 by contrast, in oklahoma, access to state-appointed counsel is more complicated. a court may appoint counsel if the parent is indigent in an abuse and neglect case, but it must appoint counsel if the state seeks to terminate parental rights.108 in nevada, access to counsel is at the 100 michael fitzgerald, no evidence of pandemic child abuse surge in new york city, but some see other crises for child welfare system, imprint (june 15, 2021), https://imprintnews.org/top-stories/no-evidence-of-pandemic-child-abuse-surge-in-newyork-city-but-some-see-other-crises-for-child-welfare-system/55991 [https://perma.cc/dnp3nsuy]. 101 cloud et al., supra note 18, at 86–87 (internal citations omitted); affected by parental incarceration, supra note 22, at 6 (explaining that children with parents who are incarcerated have a higher probability of becoming “legal orphans” than other children in the family regulation system). 102 gideon v. wainwright, 372 u.s. 335 (1963). 103 lassiter v. dep’t of soc. servs., 452 u.s. 18 (1981). 104 id. 105 id. 106 see status map, nat’l coal. for a civ. right to couns., http://www.civilrighttocounsel.org/map [https://perma.cc/nct6-v4ar] (providing a stateby-state overview of state constitutional and statutory right to counsel in termination of parent rights proceedings and abuse and neglect cases). 107 fla. stat. § 39.013(1) (2017); fla. r. juv. p. rule 8.320(a). 108 okla. stat. tit. 10a, § 1-4-306(a)(1)(a). 2022] new jim & jane crow intersect 533 discretion of the court; this choice exists even when the state’s goal is to terminate a parent’s rights.109 like criminal defense offices,110 the organizational structure of parents’ counsel offices differs across the nation.111 there may be a centralized office that oversees all the offices in that state or each jurisdiction may have a list of attorneys who a judge may appoint to represent a parent.112 the low pre-arrest income of women would make them more likely to be indigent and less likely to be able to afford to retain private criminal defense counsel and private family regulation defense counsel.113 they would need court-appointed counsel to defend their parental interests on the outside, if offered by their states at all. these lawyers must navigate unique pressures while representing these mothers. whether the challenges are specific people, institutions, or societal narratives, they make the role of parents’ counsel even more difficult than the obstacles they already face as defense lawyers in the family regulation system.114 this part examines the realities parents’ counsel for mothers who are incarcerated face and the outcome these challenges have for their clients’ parental rights, beginning with the counsels’ own biases about their clients, through the larger institutional barriers that inhibit mothers’ ability to reunite with their children in facilities and upon release. while this part does not include all the challenges parents’ counsel face, it identifies many critical limitations to the attorney-client relationship and the inability to defend the parental rights of mothers who are incarcerated.115 a. defense counsel’s potential bias, time, & caseload constraints because of their detention, mothers who are incarcerated need their counsel to offer legal strategy and support on their family cases and situations116 as they endure the legal, physical, mental, and emotional 109 nev. stat. § 128.100(2). whether or not judges in nevada have an established policy of appointing counsel automatically to eligible parents does not eliminate that they do so under their discretion. 110 sarah breitenbach, right to an attorney? not always in some states, pew charitable tr. (apr. 11, 2016), https://www.pewtrusts.org/en/research-and-analysis/blogs/ stateline/2016/04/11/right-to-an-attorney-not-always-in-some-states [https://perma.cc/ en2w-4xr6]. 111 mimi laver & cathy krebs, the case for a centralized office for legal representation in child welfare cases, a.b.a child l. prac. today (2020), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practice online/january---december-2020/the-case-for-a-centralized-office-for-legal-representationin-ch [https://perma.cc/a8ye-rzt7]. 112 id. 113 see sawyer, supra note 48, at n.27 (explaining that, “[b]efore incarceration, women in prison earned 29% less than incarcerated men, and 42% less than non-incarcerated women”). 114 margolies & kraft-stolar, supra note 36 at 3, 15–18. 115 this section includes information developed through my legal practice experience representing parents in family law matters and conversations with family regulation and criminal law defense lawyers. 116 a.b.a, standards of practice for attorneys representing parents in abuse and neglect cases, 11–19 (2006), https://www.americanbar.org/ 534 colum. j. race & l. [vol. 12:1 challenges to incarceration.117 they rely on their attorneys to provide case updates and explain the law in an accessible manner.118 the attorneyclient relationship is crucial to building a strategy to defeat asfa’s restrictions and the many barriers mothers are up against. this part delves into the challenges lawyers face because of their own bias and employment structure within the family regulation system. parents’ counsel may have negative views of mothers with criminal records and children in the family regulation system that taint their interactions with their clients; these lawyers are not immune to metaphors and narratives that permeate u.s. laws and social norms.119 even though their job is to advocate on behalf of their clients, lawyers may dismiss the mothers’ requests and desires out of racism, sexism, and other bias assumptions about their clients’ knowledge.120 their clients’ situations may lead these lawyers to ignore the mothers’ suggestions and regard them as frivolous or unhelpful.121 the mothers’ limited access to up-to-date information about witnesses or sources of information cause parents’ counsel to assume that generating ideas from their clients would be a waste of time. the marginalization of mothers who are incarcerated negates the attorney-client relationship. mothers may view their attorneys as another part of the system seeking to destroy their families, making it harder for attorneys to build trust with their clients.122 asfa imposes strict timelines, so time management and prioritization are critical aspects to parents’ counsel.123 for mothers who are incarcerated, their appointed counsel work under intense pressure, are content/dam/aba/administrative/child_law/aba-parent-rep-stds.pdf [https://perma.cc/tke25r53] [hereinafter a.b.a. standards]. 117 id. at 17–18. 118 id. 119 for a discussion on how “longstanding bias about race, class, gender, and entitlement” influence policies, see ann cammett, deadbeat dads & welfare queens: how metaphor shapes poverty law, 34 b.c.j.l. & soc. just. 233, 240–243 (2014). for further discussion of the narrative, see infra part iii.b. 120 although scholars have exposed the racism and misogyny inherent within the family regulation system, they have focused less attention on the bias within the lawyers who represent parents in these proceedings. see supra part ii.b; roberts, systemic punishment, supra note 14, at 1486–88; s. lisa washington, survived & coerced: epistemic injustice in the family regulation system, 122 colum. l. rev. 1097 (2022). criminal law scholars and practitioners, however, have made similar critiques of defense lawyers in the criminal system. see jeff adachi, public defenders can be biased, too, and it hurts their non-white clients, wash. post (june 7, 2016), https://www.washingtonpost.com/post everything/wp/2016/06/07/public-defenders-can-be-biased-too-and-it-hurts-their-non-whiteclients [https://perma.cc/z65p-hqgn]; l. song richardson & phillip atiba goff, implicit racial bias in public defender triage, 122 yale l. j. 2626 (2013); vanessa a. edkins, defense attorney plea recommendations and client race: does zealous representation apply equally to all?, 35 l. hum. behav. 413 (2011). 121 cynthia godsoe, participatory defense: humanizing the accused and ceding control to the client, 69 mercer l. rev. 715, 729 (2018) (summarizing work by scholars that critique public interest lawyers’ privilege and elitism); e. tammy kim, lawyers as resource allies in workers’ struggles for social change, 13 n.y. city l. rev. 213, 219 n.20 (2009) (“social justice lawyers must be vigilant against the creep of privilege (whether based on education, class, race, gender, sexuality, or language) and the temptation to dominate the client.”). 122 see margolies & kraft-stolar, supra note 36, at 30 (detailing the personal experiences of mothers who were incarcerated with their appointed counsel). 123 a.b.a. standards, supra note 116, at 19–20. 2022] new jim & jane crow intersect 535 underpaid, and are overworked.124 unfortunately, mothers’ right to counsel may be restricted because states that offer appointed counsel often limit the hourly rate and the amount of lawyer’s fees appointed lawyers receive.125 even though the american bar association recommended caseloads of no more than 50–100 cases per lawyer,126 parents’ counsel have reported to having 1,000 cases in some jurisdictions.127 because of their low pay, defense counsel must “take on high caseloads to compensate for the poor compensation.”128 such an excessive caseload does not allow them to offer their clients the individualized attention they need.129 further, their caseload demands do not consider the time and challenges parents’ counsel must navigate when their clients are in jails and prisons. b. defense strategy because society does not acknowledge women who are incarcerated, especially black women, as mothers, let alone good mothers, defense counsel must work against a family regulation system that is unforgiving of their clients’ actions. lawyers must disprove the myth that the women in detention facilities are bad mothers because (1) the state took away their children and (2) they are incarcerated.130 the myths of black women as inherently “criminal” and of black mothers as “bad mothers” converge.131 as professor roberts has explained: a popular mythology promoted over centuries portrays [b]lack women as unfit to bear and raise children. . . . stereotypes of maternal irresponsibility created and enforced by the child welfare system’s disproportionate supervision of [b]lack children help to sustain mass 124 myrna s. raeder, special issue: making a better world for children of incarcerated parents, 50 fam. ct. rev. 23, 30 (2012) (explaining that states differ in whether and when parents who qualify as indigent receive court-appointed counsel in family regulation cases); margolies & kraft-stolar, supra note 36, at 30 (quoting a mother who was incarcerating as stating, “the lawyers are just overworked or they don’t give a damn.”). 125 id. 126 a.b.a. standards, supra note 116, at 32–33. 127 karen k. peters, interim report to chief judge difiore, n.y. state unified ct. system comm’n on parental legal representation 35 (2019), http://ww2.nycourts.gov/ sites/default/files/document/files/2019-02/plr_commission-report.pdf [https://perma.cc/ dhh8-jegm]. one mother who was incarcerated explained, “my attorney. . . has like 500 cases and half the time he doesn’t even remember. when he comes i have to really refresh his memory until he says, ‘oh, that case.’ we go in there and we’re not even prepared.” margolies & kraft-stolar, supra note 36, at 30. 128 volk, supra note 72 (expressing that “working harder for an individual client won’t yield any more money” because of the flat fees). 129 id. at 35; a.b.a. standards, supra note 116, at 17–18. 130 although the state has the burden of proof in family regulation system proceedings, the narrative regarding parents caught in the system puts the ultimate burden on the parents and their lawyers to prove their parenting abilities. see washington, supra note 120. 131 cammett, supra note 119, at 237 (“[t]he social construction of poor black single mothers deemed them the agents of their own misfortune due to their unmarried status— assumed to indicate loose morals, hypersexuality, and presumed laziness—framed as reliance on public assistance rather than work.”). 536 colum. j. race & l. [vol. 12:1 incarceration, and stereotypes of [b]lack female criminality help to sustain foster care.132 aside from the inability to accept black women as good mothers, some states expressly authorize parental rights termination because of a parents’ incarceration and length of sentence.133 states can use that as a basis to consider mothers undeserving of their parental rights. even in states that do not have a per se policy on parental incarceration, parents’ counsel must address the societal image of mothers who are incarcerated as “criminals.” mothers within the new jim and jane crow may have counsel appointed in both their criminal and family law cases. ideally, criminal defense lawyers and parents’ counsel would view their clients holistically and realize the intertwined nature of their interests and goals.134 for example, they would understand how certain plea offers from the state may negatively affect their clients’ arguments in the family regulation system and vice versa. mothers who are incarcerated expect their defense lawyers to communicate information and case updates with them and with their other counsel.135 the information gathered from each counsel would help them develop strong strategies and defenses against the state’s allegations in both cases.136 logically, their collaboration would avoid duplicative meetings and requiring mothers who are incarcerated from resuscitating traumatic events. frequently, however, criminal defense lawyers and parents’ defense counsel neither communicate with each other nor consider how their shared client’s decisions in one system may influence the consequences in the other system.137 a mother may receive a plea offer in her criminal case that may cause her to serve several years in prison. her criminal defense lawyer may advise her whether the offer is good and the consequences to her physical freedom; if they are aware of the deal at all, her parents’ counsel may advise her on what that deal may mean for her family law case strategy and the consequences for her right to parent her child. because of the focus on the risk of the mothers losing their physical liberty, the criminal defense lawyer may view the criminal case as more important and ignore or minimize the family regulation case. as such, the parents’ counsel must try 132 roberts, systemic punishment, supra note 14, at 1492; michael b. mitchell & jaya b. davis, formerly incarcerated black mothers matter too: resisting social constructions of motherhood, 99 prison j. 420, 424 (2019) (“while black motherhood has never been fully recognized, mothers with incarceration histories are shadowed in relative invisibility.”). 133 grounds for involuntary termination, supra note 77, at 2. 134 underlying causes, still she rises tulsa (2019), https://www.stillshe rises.org/the-issue [https://perma.cc/8eg6-zhn7]. 135 a.b.a. standards, supra note 116. 136 id. 137 allison durkin et al., incarcerated parents & termination of parental rights in connecticut: recommendations for reform, yale l. sch. 23 (2021), https://ctvoices.org/wpcontent/uploads/2021/03/report-incarcerated-parents-and-termination-of-parentalrights-in-connecticut.pdf [https://perma.cc/x5ry-2alh]. 2022] new jim & jane crow intersect 537 to get on the criminal defense attorney’s radar to receive information about the mothers’ criminal case. even when parents’ counsel wants to communicate with their client’s criminal defense lawyers about relevant information and documents they receive, court orders and/or ethical obligations may limit their ability to do so. courts may impose protective orders that ban lawyers from sharing information in reports and documents with third parties.138 plus, even if no court order restricts disclosing the information, lawyers may avoid informing their clients of information that may cause harm to their clients, according to applicable ethical responsibilities.139 because states allow courts to end parents’ rights when they have a long sentence,140 a plea offer that may look like an excellent choice in the criminal case may be detrimental for mothers in the family regulation case. further, in the family regulation case, the state and the court may expect mothers to take responsibility for their alleged criminal actions and admit their conduct, in compliance with state’s case plans. in the criminal case, however, mothers have a right to remain silent and not incriminate themselves. to protect a mother’s fifth amendment right to selfincrimination, the family court judge may continue the mother’s case pending resolution of the criminal case. doing so, however, increases delays in addressing the family’s needs and, thereby, increases the mother’s risk of parental termination.141 while both the criminal defense lawyers and family defense lawyers have a responsibility to represent their clients’ interests, their roles may be difficult to align.142 this dilemma means that mothers in detention may face conflicting and hard choices between their physical liberty and their parental rights, of which her defense counsel may not be aware.143 while attempting to navigate the crucial dual cases that their mother-clients face, family defense counsel may have a harder time proving the relationship between their clients and their children who are under the state’s control. courts will likely seek evidence of the “quality of the parentchild relationship” when considering whether to impose the civil death penalty.144 when defending the parental rights of mothers in facilities, defense counsel’s evidence of the mother-child relationship become more difficult to prove; mothers who are incarcerated are not able to travel freely, schedule in-person visits with their children easily, or facilitate regular communication with their children that their lawyers could document for the court. 138 model code of pro. conduct r. 1.4 cmt. 7 (a.b.a. 2020). 139 id. at r. 1.4 (“in some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication.”). 140 grounds for involuntary termination, supra note 77, at 3. 141 philip genty, damage to family relationships as a collateral consequence of parental incarceration, 30 fordham urb. l. j. 1671, 1681 (2003). 142 kennedy, the good mother, supra note 75, at 198. 143 margolies & kraft-stolar, supra note 36, at 13. 144 affected by parental incarceration, supra note 22, at 6. 538 colum. j. race & l. [vol. 12:1 facilities may not allow children to visit their mothers.145 in fact, some jails have eliminated in-person visits for all individuals, opting for video calls instead.146 and, even if they do offer in-person family visits, courts may not require the state to bring children to the facility. facilitating visits may fall on state-authorized guardians and case workers; these individuals would handle making the trip, often hours long, to take the children to the jails or prisons.147 both the mothers and children must go through multiple metal detectors and body checks conducted by the facility staff.148 facilities may require family members to speak through glass partitions, never allowing parents and their children to touch. because of these difficulties and to protect children from the trauma that occurs upon seeing their mothers in detention, some mothers may ask that children not visit them.149 these complications lead to fewer in-person visits and less evidence of direct contact.150 mothers in detention may have limited financial resources to call and send letters and emails to their children.151 women who are incarcerated have limited financial resources and are likely to remain in jail while awaiting trial.152 as such, their ability to make regular calls and mail consistent correspondence to their children becomes more restricted.153 145 kennedy, children, parents, & the state, supra note 46, at 82–83 (discussing the inability to support relationships between mothers and children). 146 mindy fetterman, face-to-face family visits return to some jail, pew charitable tr. (feb. 15, 2017), https://www.pewtrusts.org/en/research-and-analysis/blogs/ stateline/2017/02/15/face-to-face-family-visits-return-to-some-jails [https://perma.cc/zd3vwzkh] (describing a 2015 report that found that 74% of jails with video conference communications stopped in-person visits altogether and noting that the companies that run the video communications included a contract provision requiring the jails to eliminate the in-person visits). 147 roberts, shattered bonds, supra note 2, at 208. 148 safia fasah, pat-downs but no hugs: why prison visitation protocol should be changed to help keep familiar structures intact, 56 fam. ct. rev. 135, 136 (2018); carla laroche, public comment, public hearing on women in prison: seeking justice behind bars, u.s. comm’n on c.r. 4–6 (mar. 25, 2019), https://securisync.intermedia.net/us2/s/folder? public_share=6frehzcq5xsfvp261vt1zt0011ef58&id=lw%3d%3d (recounting the process the author and her children went through to see each other in person while she was incarcerated and the resulting emotions associated with the visits). 149 margolies & kraft-stolar, supra note 36, at 28 (describing a comment by one mother that “she did not see her children because she did not want them to see her in prison”). 150 laroche et al., supra note 17. 151 even when their children send letters, their mothers do not receive the tangible document. instead, jails and prisons have entered contracts with private companies to scan the letters and send mothers electronic versions only. kajstura, supra note 24; victoria law, captive audience: how companies make millions charging prisoners to send an email, wired (aug. 3, 2018), https://www.wired.com/story/jpay-securus-prison-email-chargingmillions [https://perma.cc/g7hk-jhjr] (explaining how challenging it is for people in detention and their families to communicate because of the high fees companies charge). 152 bernadette rabuy & daniel kopf, prisons of poverty: uncovering the preincarceration incomes of the imprisoned, prison pol’y initiative (july 9, 2015), https://www.prisonpolicy.org/reports/income.html [https://perma.cc/cmf9-aq4m]. 153 nazish dholakia, bans on holiday cards and $30 phone calls-the isolation of prison, vera inst. of just. (dec. 21, 2021), https://www.vera.org/blog/bans-on-holidaycards-and-30-phone-calls-the-isolation-of-prison [https://perma.cc/kn48-vje9] (detailing prohibitions jail and prison facilities impose on communications between family members and their loved ones in the facilities). 2022] new jim & jane crow intersect 539 further, navigating the criminal legal system, the family regulation system, confinement, and separation from their children are traumatic experiences that may lead mothers to avoid discussing or interacting with their children and their lawyers.154 what may seem like lack of interest in offering emotional support to their children and their case may be a coping mechanism for mothers who are incarcerated. courts may assume that mothers in detention have given up on their children when learning of these mothers’ actions, mothers continue to parent their children even with these financial, mental, and physical restrictions.155 mothers use untraditional methods, including communications through other women who had been incarcerated with them, to help parent their children.156 as one mother explained, “you have to parent from behind the wall when you’re incarcerated. . . . it doesn’t really matter who takes care of your children, no one is going to love your kids like you do.”157 counsel must find ways to confirm their clients’ dedication to their children and to explain the strength of their clients’ bonds to their children to the courts despite these major challenges. mothers who are incarcerated have little to no access to the services and treatments that the court mandates through the family case plans,158 making it difficult for their lawyers to supply the court with evidence of their clients’ participation in the programming and their immediate improvements.159 jails and prisons may exist in service deserts. providers approved to conduct programming for the state may not be eligible or want to work in detention facilities. states may require the mothers to pay for the services, which they cannot afford, especially while incarcerated. for programs that courts impose on mothers often and have limited space to enroll participants, mothers who are incarcerated may have to spend time on a waitlist in the hopes of fulfilling this requirement.160 parents’ counsel may think services in their clients’ plans are irrelevant to the issues the state identified as risks to the children in the first place.161 lawyers must then move to have the court remove them from 154 margolies & kraft-stolar, supra note 36, at 28. 155 kennedy, the good mother, supra note 75, at 193. 156 anna rawls, when mom is in prison — and when she comes home, marshall project (oct. 7, 2021, 6:00 am), https://www.themarshallproject.org/2021/10/07/whenmom-is-in-prison-and-when-she-comes-home [https://perma.cc/5y27-z7hx]. 157 lindsey van ness, covid froze prison visits, spotlighting high cost of phone calls, pew charitable tr. (aug. 4, 2021), https://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2021/08/04/covid-froze-prison-visits-spotlighting-high-cost-ofphone-calls [https://perma.cc/pj84-ahuc] (noting that leslie credle, a mother held in federal prison, and her family spent $200 a month on calls to her children). 158 sherry, supra note 79, at 385 (“incarceration makes it difficult to complete the case plan created to help families reunify since they cannot participate in many of the services required.”). 159 a.b.a. standards, supra note 116. 160 affected by parental incarceration, supra note 22, at 10 (confirming the dearth of services for parents in prisons). 161 shanta trivedi, my family belongs to me: a child’s constitutional right to family integrity, 56 harv. c.r.-c.l. l. rev. 267, 288 (2021) (noting scholarship describing instances where the case plan services are irrelevant to parents’ needs). cloud et al., supra note 18, at 83 (internal citations omitted) (“[t]here services are representative of the child welfare system’s implicit bias that black people are incapable of governing themselves, and 540 colum. j. race & l. [vol. 12:1 the plan or accept that those services are not available and would delay reunification upon a mother’s release.162 c. case preparation & communication with mother knowing the varied challenges their mother-clients are up against requires parents’ counsel to develop strong attorney-client relationships with their mother-clients and spend adequate and ample time communicating and strategizing with them;163 for lawyers with mothers who are incarcerated as clients, however, that is profoundly difficult. their clients’ location and reasons for incarceration hamper their ability to put on a strong defense.164 mothers and their counsel cannot work efficiently together to activate their support systems, develop witness lists and prep witnesses, obtain and review evidence through the discovery process, and develop strategies to cross-examine adverse witnesses and bolster weaknesses in the case. communicating with a mother in a jail or prison through regular forms of communication, including in person, over the phone, and through mail correspondence, requires more money and time than communicating with someone who is not incarcerated.165 the process for scheduling and conducting a legal visit between a lawyer and their client involves advanced planning. facilities may not allow lawyers to meet with clients unless they receive more than one to two days’ notice.166 for varied reasons, the facility may deny a lawyer’s request for an in-person legal visit.167 if counsel has set a date and time successfully, they must drive to the facility. because states have fewer women’s prisons,168 counsel may have to drive for hours to meet with their clients.169 once they arrive, they must go through security checks and wait to be escorted to a room or unit are a mechanism for the court and child protective workers to impose these misguided values of the black family.”). 162 one guide advised parents’ counsel to “advise [their] client to cooperate and accept services immediately.” diana boyd rauber & lisa a. grank, representing parents in child welfare cases: a basic introduction for attorneys, a.b.a. 5 (2000) [https://perma.cc/cv9p-e6ua]. 163 a.b.a. standards, supra note 116. 164 shattered bonds, supra note 2, at 208. 165 peter wagner & alexi jones, state of phone justice: local jails, state prisons and private phone providers, prison pol’y initiative (feb. 2019), https://www.prison policy.org/phones/state_of_phone_justice.html.2019 [https://perma.cc/f7bb-rdnx]. 166 28 c.f.r. § 543.13 (2021). 167 nat’l ass’n of crim. def. law. & samuelson law, tech. & pub. pol’y clinic, preserving incarcerated persons’ attorney-client privilege in the 21st century: why the federal bureau of prisons must stop monitoring confidential legal emails, nat’l ass’n of crim. def. law. 19–20 (2020), https://www.law.berkeley.edu/wp-content/uploads/2020/ 12/20201210-nacdl-samuelsonclinic-privilegedemailreport.pdf [https://perma.cc/z3st2bgu] [hereinafter preserving attorney-client privilege]; johanna kalb, protecting the right to counsel: lessons from new orleans, brennan ctr. for just. (june 14, 2018), https://www.brennancenter.org/our-work/analysis-opinion/protecting-right-counsel-lessonsnew-orleans [https://perma.cc/j86k-w8zt]; how criminal justice systems are responding to covid-19, crime & just. inst. (2021), https://www.cjinstitute.org/corona [https://perma.cc/rm6m-fmnb] (noting that the covid-19 pandemic restricted lawyers from meeting with clients). 168 kennedy, children, parents, & the state, supra note 46, at 4. 169 bernadette rabuy & daniel kopf, separation by bars and miles: visitation in state prisons, prison pol’y initiative (oct. 20, 2015), https://www.prisonpolicy.org/ reports/prisonvisits.html [https://perma.cc/v865-vvp9]. 2022] new jim & jane crow intersect 541 to speak with their clients. further, the meeting may be interrupted, canceled, or stopped for reasons beyond the lawyer’s and mother’s control.170 after the meeting, the lawyer must go through metal detectors, or other security checks, before making the long drive back to their office. the legal visit may take a full day. legal calls, however, may not be any better. in some jurisdictions, clients must pay for their calls to their lawyer. phone calls from mothers in facilities cost much more than calls between people outside of detention facilities.171 mothers who are incarcerated often cannot afford to call neither their counsel nor their children and other family members.172 like legal visits, lawyers must follow facility protocol to reach their client by phone. the staff will need advanced notice and they may not afford the mother enough time for the family defense counsel to obtain and relay pertinent information to their client. further, lawyers and their clients may be concerned that the communications company may be recording the legal calls, which the state may be able to access.173 counsel may also send their clients’ case documents and written correspondence by mail.174 the mail may take a long time to reach the mother in the facility and she may not have access to stamps to send return correspondence. lawyers must be aware of and concerned for their client’s confidentiality when sending emails, as well as with the other forms of communication. under facility protocols, the mothers’ email correspondence is likely not protected from staff review. in addition, depending on the facilities’ layouts, staff may be able to overhear conversations describing the mother’s situation and plan during legal visits and calls,175 and, just like with legal calls, staff may share the information with opposing parties.176 170 preserving attorney-client privilege, supra note 167. 171 see matt reynolds, fcc approves plan to make some phone calls cheaper for inmates and their families, a.b.a. j. (may 21, 2021 10:16 a.m.), https://www.abajournal.com/news/article/fcc-curbs-out-of-state-call-rates-in-prisons [https:// perma.cc/xuc7-jlux]; see also eric zorn, column: phone calls should be free for prison inmates, chicago trib. (apr. 15, 2021 4:13 p.m.), https://web.archive.org/ web/20220111223846/https://www.chicagotribune.com/columns/eric-zorn/ct-column-inmatephone-calls-charges-bobby-rush-zorn-20210415-ylqihy54tre53mx6npkzfx6tfq-story.html. “jail phone calls are three times as expensive as calls from prison, and other forms of communication are more restricted.” wagner & jones, supra note 165; kajstura, supra note 24. 172 “high call rates push incarcerated people and their families into debt, according to politico.” sylvia a. harvey, making a phone call from behind bars shouldn’t send your family into debt, politico (sept. 29, 2020 4:30 a.m.), https://www.politico.com/news/ agenda/2020/09/29/prison-telecom-costs-422774 [https://perma.cc/w83u-qj3l]; reynolds, supra note 171. 173 ella fassler, prison phone companies are recording attorney-client calls across the us, motherboard (dec. 13, 2021), https://www.vice.com/en/article/7kbbey/ prison-phone-companies-are-recording-attorney-client-calls-across-the-us [https://perma.cc/ c63m-g87u] (noting that a phone company recorded over 1,500 protected jail calls between legal teams and their clients in new york city). 174 preserving attorney-client privilege, supra note 167, at 17–18. 175 id. at 19–21. 176 fassler, supra note 173 (explaining that prosecutors obtained legal call recordings between clients who were incarcerated and their legal teams). 542 colum. j. race & l. [vol. 12:1 even if counsel sets up communication with their client, they will have to ensure they are trauma-informed and address any trauma-related events that may arise during the legal representation.177 as described earlier, women who are incarcerated have a higher rate of childhood domestic and sexual trauma than men who are incarcerated.178 further, “[w]omen in jails are also more likely to suffer from mental health problems and experience serious psychological distress than either women in prisons or men in either correctional setting.”179 a mother’s ability to help with legal strategy and preparation will be restricted by her location in a facility, but, also, by the status of her health. with facilities providing unacceptable medical and mental health services,180 mothers will often not receive the treatment and support they need. because of these health impairments, they will be less likely to provide their attorneys with the information necessary to address their legal needs. mothers who are incarcerated do not have freedom of movement and their lawyers will have problems when attempting to confer with them at the courthouse, ahead of and immediately after hearings.181 to attend a hearing in person, counsel must seek court approval to require the detention facility to transport their client to court.182 the jail or prison may be distant or logistical transportation barriers may exist; therefore, courts may deny their motion.183 instead, courts may waive a mother’s attendance at the hearing altogether or require her to attend remotely, whether through the phone or video.184 those options limit counsel’s ability to confer with their client in real time.185 further, counsel may not be able to explain the proceeding, before and after, because of the restrictions on access to their clients who are incarcerated.186 defense lawyers must navigate these hearings while 177 the state of prison & jail communication systems, nat’l ass’n of crim. def. law. (mar. 11, 2021), https://www.nacdl.org/map/state-of-prison-jail-call-communicationsystems [https://perma.cc/jpg4-cyhr] (“many respondents mentioned the continuous presence of jail staff around the visiting room. sometimes the visiting rooms were placed immediately beside the staff’s booth.”). 178 supra part ii.a.; black women and sexual assault, supra note 58; where we stand: racism and rape, nat’l alliance to end sexual violence, https://endsexual violence.org/where_we_stand/racism-and-rape/ [https://perma.cc/5p5a-jrtp] (last visited july 6, 2022). 179 kajstura, supra note 24. 180 kamala mallik-kane & christy a. visher, health and prisoner reentry: how physical, mental and substance abuse conditions shape the process of reintegration, urb. inst. just. pol’y ctr. (feb. 2008), https://www.urban.org/sites/default/files/publication/ 31491/411617-health-and-prisoner-reentry.pdf [https://perma.cc/zs8v-f4ay]. 181 margolies & kraft-stolar, supra note 36, at 12–14 (describing the process mothers who are incarcerated must undergo to appear in court in-person). 182 id. at 12–13. 183 id. at 12. 184 id. at 12–13. 185 alicia bannon & janna adelstein, the impact of video proceedings on fairness and access to justice in court, brennan ctr. for just. (sept. 10, 2020), https://www. brennancenter.org/our-work/research-reports/impact-video-proceedings-fairness-andaccess-justice-court [https://perma.cc/4dh9-kpt2] (collecting research that indicates that remote video technology in courtrooms caused problems for attorney-client communications). 186 margolies & kraft-stolar, supra note 36, at 13. 2022] new jim & jane crow intersect 543 their clients miss these critical proceedings and information about their family regulation case. if mothers are able to attend remote video proceedings, lawyers will be able to call their clients to testify before the court about their parentchild relationship, but this technology may not benefit mothers who are incarcerated, as expected.187 a 2020 report by the brennan center described one study that reviewed immigration proceedings conducted remotely and learned that litigants found “it difficult to understand what was happening during video proceedings, and that many perceived a video appearance as unfair and not a real “day in court.”188 further, immigration judges viewed people less credible when they testified in a video hearing versus in-person.189 therefore, their mother-clients’ appearance through remote technology may increase the negative views and narratives courts already have of their clients as bad mothers.190 the ability to interact with their clients is exceptionally difficult when family defense lawyers represent mothers who are incarcerated. their inability to meet and correspond with their counsel limits mothers who are motivated to work with their lawyers to develop their case, suggest witnesses, and supply evidence. it also makes it difficult for client-attorney relationships to develop under these circumstances. d. challenges after mothers’ release from incarceration asfa expects parents to reunite with their children within twentytwo months or face the termination of their parental rights. with mothers likely being unable to afford bail and/or sentenced to lengthy terms in prison, courts may delay the return of the children to their custody until after their release. an estimated 1.8 million women and girls exit jails and at least 81,000 women reenter society from state prisons every year.191 almost 1 million women are under probation or parole.192 barriers to accessing their legal counsel do not end upon release. 187 bannon & adelstein, supra note 185. because of the covid-19 pandemic, courts have employed telephonic and video technology in court proceedings out of necessity and people have sought to make these measures permanent. id. while using this technology in the courts may increase access to proceedings for some people, the report recommended caution out of concern for the negative unintended consequences associated with the technology. 188 id. 189 id. the brennan center report also noted that people with limited or no english proficiency had additional challenges that courts and legal advocates had to consider. id. the use of translators intensified the miscommunication, confusions, and problems already inherent in the use of video technology services. id. further, because people in custody experience a disability at higher rates than the general public, remote technology may not allow mother-clients to obtain the benefit of their appearance in the court proceeding. see preserving attorney-client privilege, supra note 167, at 23. 190 see supra part iii.b. (discussing the image the state and courts may have of the mothers as “bad mothers” and “criminals,” without the nuanced understanding of the mothers’ experiences and parenting). 191 wendy sawyer, who’s helping the 1.9 million women released from prisons and jails each year?, prison pol’y initiative (july 19, 2019), https://www.prisonpolicy.org/ blog/2019/07/19/reentry [https://perma.cc/ts2z-juwj]. this data does not include federal releases. 192 sentencing project, supra note 25. 544 colum. j. race & l. [vol. 12:1 the requirements mothers returning from incarceration must follow set them up for failure.193 mothers may have to follow their probation or parole officers’ supervision conditions; begin paying any outstanding court fines, fees, or restitution; find stable housing; seek employment or enroll in schooling; and attend substance use disorder treatment programs, among other expectations.194 in theory, abiding by all these obligations would make it easier for their counsel to show the court that their clients are on a stable path and pose no risk to their children’s safety, but the policies and laws in the united states set mothers up for failure.195 this part describes how the conditions imposed by both the criminal and family regulation systems that the mothers must follow once released delay parent-child reunification further and make their lawyers’ advocacy harder. mothers may have trouble accessing reentry services the judges in both of their cases demanded.196 their criminal records make it harder for them to secure full-time consistent employment197 and safe housing,198 both of which are important to reuniting with their children. women with convictions face many challenges, including “substance abuse issues, problems securing childcare, and gender stereotypes,” when seeking employment.199 women of color endure a 193 sawyer & wagner, supra note 38 (“the long supervision terms, numerous and burdensome requirements, and constant surveillance (especially with electronic monitoring) result in frequent ‘failures,’ often for minor infractions like breaking curfew or failing to pay unaffordable supervision fees.”); words from prison did you know...?, am. c.l. union, https://www.aclu.org/other/words-prison-did-you-know [https://perma.cc/234c-jpq8] (detailing the many gendered collateral consequences of convictions). 194 id.; margaret colgate love et al., collateral consequences of criminal conviction: law, policy and practice (3d ed. 2018); michael pinard, collateral consequences of criminal convictions: confronting issues of race and dignity, 85 n.y.u. l. rev. 457 (2010); alexandra natapoff, misdemeanors, 85 s. cal. l. rev. 1313, 1316–17 (2012). 195 reuben jonathan mille, how thousands of american laws keep people “imprisoned” long after they’re released, politico (dec. 30, 2020), https://www.politico. com/news/magazine/2020/12/30/post-prison-laws-reentry-451445 [https://perma.cc/v4x4tx6w]. 196 kajstura, supra note 24 (explaining that nearly two million women and girls reenter society after incarceration, but do not have access to post-release services); patricia allard, life sentences: denying welfare benefits to women convicted of drug offenses, sentencing project (2002), https://www.opensocietyfoundations.org/publications/lifesentences-denying-welfare-benefits-women-convicted-drug-offenses [https://perma.cc/73agpq2w] (explaining that only 25% of people in prisons and 17% of people on probation receive treatment services for substance use disorder, even though almost 75% of criminal-lawinvolved women used drugs pre-arrest). 197 lucius couloute & daniel kopf, out of prison & out of work: unemployment among formerly incarcerated people, prison pol’y initiative (july 2018), https://www.prisonpolicy.org/reports/outofwork.html [https://perma.cc/5l3u-5vt4]. 198 “it is perhaps then no surprise that formerly incarcerated women are also more likely to be homeless than formerly incarcerated men, making reentry and compliance with probation or parole even more difficult.” lucius couloute, nowhere to go: homelessness among formerly incarcerated people, prison pol’y initiative (aug. 2018), https://www.prisonpolicy.org/reports/housing.html#raceandgender [https://perma.cc/u2mnd95e]; kajstura, supra note 24. 199 holly otterbein, why female ex-convicts may have a harder time finding work than their male counterparts, whyy (sept. 12, 2014), https://whyy.org/articles/whyfemale-ex-convicts-may-have-a-harder-time-finding-work-than-their-male-counterparts [https://perma.cc/ksr8-7mb7]; sarah callahan et al., reducing economic disparities for 2022] new jim & jane crow intersect 545 tougher job landscape than people in other demographics. in july 2018, the nonprofit research organization prison policy initiative issued a report showing the average rate of unemployment for people who were formerly incarcerated was 27%; that unemployment rate, however, jumped to nearly 44% for black women. 200 and while 87% of white men obtained full-time employment upon release, black women ranked the lowest among racial identities—black, hispanic, and white—and genders—women and men— with only 67% getting full-time jobs.201 the education exclusion of mothers who were incarcerated makes their employment opportunities even worse and, yet again, race plays a role in this barrier. according to a 2018 report, 33% of black women who are formerly incarcerated202 and over “40% of formerly incarcerated hispanic women after the age of 25 must navigate their communities with neither a high school diploma nor ged, but with the stigma of a criminal record instead.”203 this educational barrier further exacerbates the unemployment rates for women of color.204 because women released from imprisonment “return to their original community upon release, and these communities are usually low income and high crime, with a lack of employment opportunities,” their housing situations dictate their ability to reenter society effectively.205 black and hispanic women returning from incarceration face homelessness at a higher rate than white women.206 in fact, black women are at greater risk of homelessness or living in a shelter than black, hispanic, and white men, and white women.207 more specifically, black women are almost “four times more likely than white men to be living in a homeless shelter.”208 without stable housing, women may feel the pressure and necessity to “return to abusive partners or family situations” and risk recidivism.209 scholars have documented these barriers to reentry well and yet the state and the court may only see noncompliance and no effort by female offenders: the oxford house model, 34 alcoholism treatment q. 292 (2016) (citation omitted) (noting that “individuals coming out of prison lack skills and work experience, and a depreciation of social capital, making potential employers more difficult to reach through social networks.”). 200 couloute & kopf, supra note 197. 201 id. one study found that women released from federal prison made $800–$1,800 less per quarter than men and that black, american indian, and alaska native individuals made less per quarter than any other community. e. ann carson et al., employment of persons released from federal prison in 2010, u.s. dep’t just., off. just. programs 16 (2021), https://bjs.ojp.gov/content/pub/pdf/eprfp10.pdf [https://perma.cc/acv5-d9f7]. 202 lucius couloute, getting back on course: educational exclusion and attainment among formerly incarcerated people, at app. tbl. 5 prison pol’y initiative (oct. 2018), https://www.prisonpolicy.org/reports/education.html [https://perma.cc/a3fmzbr3]. 203 id. 204 id. at app. tbl. 4. 205 callahan et al., supra note 199. 206 couloute, supra note 202. 207 id. the researcher did not have enough data to include hispanic/latina women in their study regarding sheltered homelessness. 208 id. 209 sawyer, supra note 191. 546 colum. j. race & l. [vol. 12:1 mothers.210 the inaccessibility of housing and employment for women with detention histories, especially black women, make already difficult defense strategies even more difficult. along with these court-imposed demands, mothers must rebuild and reconnect their relationships with their children and loved ones.211 while attempting to reengage in their children’s lives, mothers may not be able to attend their children’s school and extracurricular events and volunteer during their events; schools and programs may impose a bar on allowing individuals, including parents, from participating if they have a felony conviction.212 lawyers must attempt to explain to the state and the court their clients’ unemployment, housing instability, potential return to unsafe environments, parent-child relationship issues, and other reentry challenges mothers may face. nonetheless, mothers may fear that defense counsel will report to the state or the court any difficulties they may have navigating these processes and relationships and, therefore, may not share their reentry obstacles with their lawyers. and, even if mothers and their lawyers seek to establish trust and strengthen their lawyer-client relationship through in-person meetings, access to transportation may make that desire difficult, if not unattainable.213 the consequences of the new jim crow and new jane crow defeat the attorney-client relationships once again. as these mothers get shut out of opportunities and lawyers navigate limited legal strategies, the asfa clock ticks toward parental termination.214 unfortunately, the lack of support for mothers who are incarcerated because of the challenges their counsel face results in a family regulation system that tramples on mothers’ constitutional right to parent their children and ignores the best interests of the children.215 family defense lawyers’ have difficulty proving to the court that the children’s best interests are best served by placing the children back in their mothers’ care.216 yet again, even when released, the new jim crow and the new 210 roberts, systemic punishment, supra note 14, at 1499 (highlighting that the exclusion from social safety nets and support because of their convictions means mothers face the family regulation system’s “ultimate punishment,” the termination of their parental rights.). 211 affected by parental incarceration, supra note 22, at 16; rawls, supra note 156 (describing a child’s feeling of pain and resentment upon her mother’s return from incarceration). 212 tim pratt, policy keeps some parents out of schools, off field trips, cap. gazette (nov. 11, 2012), https://web.archive.org/web/20220112005614/https://www.capital gazette.com/cg2-arc-3514fbff-fd51-58c6-9895-f544a38ba175-20121111-story.html. 213 anne nordberg et al., transportation barriers to successful reentry among returning citizens: a qualitative interpretive meta-synthesis, 101 prison j. 488, 490 (2021); miriam northcutt et al., cumulative disadvantage and the role of transportation in community supervision, 64 crim. & delinquency 1033, 1034–35 (2017) (citing merry morash, women on probation and parole, northeastern u. press (2010)). 214 affected by parental incarceration, supra note 22, at 16. 215 id. 216 cloud et al., supra note 18, at 86–87 (internal citations omitted); kara gotsch, families and mass incarceration, sentencing project (apr. 2018), https://www. sentencingproject.org/publications/6148 [https://perma.cc/7qrw-fzn2] (“studies report numerous negative outcomes for children as a consequence of parental incarceration, ranging from depression and anxiety to aggression and delinquency depending on circumstances such as the child’s age and the length of a parent’s incarceration.”); martin, 2022] new jim & jane crow intersect 547 jane crow intersect to limit mothers and their counsel from contesting the civil death penalty. e. the carceral state’s damage the new jim crow and the new jane crow reflect convenient terms i use to identify the different systems mothers must navigate, but i also recognize both systems are part of an all-encompassing carceral system and state. the carceral state: [c]enters pathology, criminalization, and punishment. the concept of carcerality captures the ways in which white supremacy shapes and organizes society “through policies and logic of control, surveillance, criminalization, and unfreedom. . . . the carceral state, and its punitive processes of criminalization and control, operate in highly discriminatory ways and have both produced and reinforced massive inequalities along lines of race, class, gender, sexuality, and other identity categories.”217 the gendered terms should not take away from the impact both mass incarceration and family regulation have on mothers. as described throughout this piece, in both systems, and in the carceral state more generally, black mothers are “at the epicenter of a multi-institutional apparatus of surveillance, social control, and punitive regulation.”218 professor s. lisa washington has argued that society should view these different systems as one overarching system of surveillance.219 as such, the carceral state’s continuous oversight of mothers makes it difficult for them to navigate and to live freely within the united states.220 the system’s imposition on mothers who are incarcerated and returning from incarceration includes policies and norms that restrict movement; require participation in mandatory pre-trial and case plan services and programming, and drug tests; and mandate check-ins with caseworkers and officers, among other demands.221 institutions and supra note 20 (stressing the overwhelming findings that parental incarceration has adverse effect on children’s wellbeing. in one study, researchers reported that “children of incarcerated mothers had much higher rates of incarceration — and even earlier and more frequent arrests — than children of incarcerated fathers.”). 217 angela olivia burton & angeline montauban, toward community control of child welfare funding: repeal the child abuse prevention and treatment act and delink child protection from family well-being, 11 colum. j. race & l. 639, 662 (2021) (quoting gabrielle french et al., what is the carceral state?, univ. of mich. carceral st. project (may 2020), https://storymaps.arcgis.com/stories/7ab5f5c3fbca46c38f0b2496bcaa5ab0 [https://perma.cc/3bcl-gq8a]). 218 id. at 662 (quoting dorothy roberts, digitizing the carceral state, 132 harv. l. rev. 1695, 1706 (2019) (book review)). 219 s. lisa washington, carceral intersections of family regulation (nov. 2021) (unpublished manuscript) (on file with author). 220 andrea l. dennis, criminal law as family law, 33 ga. st. u. l. rev. 285, 289 (2017) (“agents monitor whether or not supervisees are complying with obligations unrelated to their offense, such as familial and child support. to surveil and control individuals, officials gather personal family information collateral to the offense and rely on family members to report misbehavior.”). 221 id. at 336–51 (emphasizing the many ways community surveillance interferes with family norms). 548 colum. j. race & l. [vol. 12:1 individuals with power within the carceral state limit who mothers may communicate with and under what conditions they may see their children.222 even if a black woman successfully exits one of these systems— release from prison, for example—no guarantee exists that that system will leave her alone—because of state supervision or re-arrest—or that she will conquer the other systems that plague her, including attempts to regain custody of her child in the family regulation system.223 the carceral state’s interconnected nature means that it pushes her child into both systems as well; these systems create a cycle of intergenerational trauma and separation.224 the enormity of the carceral state requires mothers who are incarcerated to depend on potential guidance and advocacy from appointed counsel, when available, to defend their rights and families.225 the carceral state, however, also makes that guidance and advocacy restricted, if not meaningless. iv. legal representation enhancement addressing the challenges defense counsel face when their clients are mothers who are incarcerated requires a multifaceted approach because of the level of barriers the carceral state imposes. reflecting on the support ms. jones, the mother discussed in this piece’s introduction, and mothers like her across the country need, i propose three recommendations to make their counsel’s defense work more effective and meaningful: (1) equip law librarians within prisons and jails with robust resources that mothers may access to work with their legal counsel to defend their parental rights; (2) increase the use of multidisciplinary legal teams to represent mothers who are incarcerated; and (3) abolish the use of the carceral state to regulate women in poverty and their families. combined, these solutions would empower individual mothers and their counsel and decrease the mothers’ entanglement within the criminal legal and family regulation systems altogether, keep families together, and avoid the trauma associated with parental termination. these suggested enhancements would aid family defense lawyers in reaching their goal of providing zealous representation to mothers who are incarcerated and ensuring the best interests of children prevail.226 222 id. at 289. 223 id. at 289–90 (explaining the power others have to reincarcerate and separate parents from their families if they do not comply with court conditions). 224 durkin et al., supra note 137, at 36 n.125 (“children of parents who experienced foster care placement or parental incarceration as children are more likely to experience the foster care placement and incarceration. . . . additionally, our discussions with family defenders and sociologists revealed that various parents who face tpr[, or termination of parental rights,] lack kin due to their experience of tpr as a child.). 225 see genty, supra note 36 (explaining the myriad challenges parents who are incarcerated have when trying to use procedural rights and confirming that “[f]ar more than other parents, an incarcerated parent must depend almost completely on others for logistical assistance.”). see also pamela lewis, behind the glass wall: barriers that incarcerated parents face regarding the care, custody and control of their children, 19 j. am. acad. matrim. l. 97, 98 (2004); margolies & kraft-stolar, supra note 36. 226 a.b.a. standards, supra note 116. 2022] new jim & jane crow intersect 549 a. prison & jail law libraries as ms. jones, the mother who wrote to the gender and family justice clinic, indicates, mothers who are incarcerated seek more understanding of the law and guidance.227 while mothers should expect defense counsel to represent them in their family regulation case, they may also seek to learn more about the process by accessing legal resources, statutes, and caselaw through the jail or prison law library. according to bounds v. smith, facilities must allow people who are incarcerated with access to legal assistance or law libraries.228 advocates like jhody polk, founder of the jailhouse lawyer’s initiative (“jli”) and a 2018 soros justice advocacy fellow,229 have worked to bolster the training of and support to law clerks who work in prisons across the nation.230 as jli contends, “nearly every person who goes to a jail or a prison comes into contact with a jailhouse lawyer or law clerk.”231 yet, the law clerks in the prisons and jails have limited resources and support.232 for mothers like ms. jones, genuine access to law librarians and legal guidance within prisons and jails would make the law more accessible and allow them to be more proactive in their family regulation cases. as joyce mcmillan, executive director of jmacforfamilies,233 noted, “it’s really all about knowing your rights.”234 ms. jones benefitted from the clinic students’ material; it was digestible and defined her rights. whether or not mothers have appointed attorneys, they should have the right to know the law and receive ample support to prepare for their cases adequately. further, meaningful access to the law and legal resources would allow mothers who are incarcerated to hold their appointed counsel 227 letter from ms. jones, supra note 1 (“im sure that you all could do worlds of good to the many parents out there, that just don’t know what step to take next. i was truly blessed when i received your letter offering information. an it helped me in a major way.”). 228 bounds v. smith, 430 u.s. 817, 828 (1977) (“we hold, therefore, that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.”). 229 jhody polk, open soc’y founds., https://www.opensocietyfoundations.org/ fellows/jhody-polk [https://perma.cc/ja7l-ux3u]. jli is a project under the legal empowerment advocacy hub (“leah”) with support from the bernstein institute for human rights. the jailhouse lawyer initiative, bernstein inst. for hum. rts., https://www.law.nyu.edu/centers/bernstein-institute/legal_empowerment/jailhouse_lawyers [https://perma.cc/pn4s-fmyg]. 230 jhody d. polk, beyond bars: the jailhouse lawyer initiative, guild notes, https://www.nlg.org/guild-notes/article/beyond-bars-the-jailhouse-lawyer-initiative [https://perma.cc/kq4y-qukl]. 231 the jailhouse lawyer initiative, supra note 229. 232 ashley krenelka chase, exploiting prisoners: precedent, technology, and the promise of access to justice, 12 wake forest j. l. and pol’y 103 (2022). 233 jmacforfamilies is an organization that “works to abolish the current punitive and harmful child welfare system, and create a system that truly supports families and communities.” jmacforfamilies, https://jmacforfamilies.org [https://perma.cc/6qch739y] (last visited july 6, 2022). 234 joyce mcmillan, exec. dir., jmacforfamilies, joyce mcmillan testifies re: the need for family miranda rights 2:28 (oct. 21, 2021), https://youtu.be/ubn1lkav6lc?t=148 [https://perma.cc/s4ey-6baz]. 550 colum. j. race & l. [vol. 12:1 accountable. they would be more alert to any strategies that may conflict within their family regulation case and between that case and their criminal case. mothers would be able to research and have ready to share with their lawyers what they have done to show to the court their relationship with their children and their efforts to parent while incarcerated. in addition, mothers would be more aware of the state’s obligations and would try to hold the state more accountable in including them in the case planning and reentry services process. increasing access to the resources at law libraries would allow mothers more support as they contest the state’s allegations against them and protect their parental rights. b. multidisciplinary legal representation mothers who are incarcerated have limitations, as described throughout this piece, that make their legal counsel critical even if the mothers have meaningful access to legal resources and the law library. as mothers who are incarcerated are empowering themselves with an understanding of their rights and responsibilities under the family regulation system, parents’ counsel would be in better positions to offer a trauma-informed, anti-racist, and culturally humble attorney-client relationship multidisciplinary legal representation.235 all states should appoint lawyers to parents in family regulation cases at the first involvement of the state and the representation should be a multidisciplinary team.236 lawyers research, understand, and apply the law, while their clients supply the facts and personal knowledge that form the basis for their counsel’s efforts. because of their clients’ restrictions in facilities and in navigating reentry, legal teams that include social workers, peer-parent advocates, and other supportive parties would strengthen their cases.237 some members of the mothers’ teams would navigate the barriers to communication with their clients—whether during legal visits in the facilities, by mail, or by phone—while other members move other aspects of the mothers’ cases forward. the teams would be able to work on increasing communication and visits between their mother-clients and their children. multidisciplinary teams would allow counsel to address the bad mother myth more holistically. the legal team would be able learn their clients’ history, relationship with their children, and desired needs and outcomes in the family regulation case and the criminal case. they could 235 lucas a. gerber et al., effects of an interdisciplinary approach to parental representation in child welfare, 102 child. & youth servs. rev. 42, 52–53 (2019); attributes of high-quality legal representation for children and parents in child welfare proceedings, fam. just. initiative 3–4 (2018). 236 keyna franklin, how holistic legal representation supports reunification, rise mag. (june 2, 2020), https://www.risemagazine.org/2020/06/how-holistic-legalrepresentation-supports-reunification [https://perma.cc/ur7r-2u4v] (describing the benefits of an interdisciplinary team that “includes a lawyer, parent advocate and social worker” in family regulation cases). 237 volk, supra note 72; fam. just. initiative, supra note 235, at 5; laver & krebs, supra note 111. 2022] new jim & jane crow intersect 551 spend time developing and presenting a more complex and caring image of these mothers. they could mitigate the harshness the mothers’ criminal histories create and offer a more humane image of their clients’ parenting.238 still she rises is “the first holistic defense office in the country dedicated exclusively to the representation of mothers in both the criminal and civil legal systems” in tulsa, oklahoma.239 several other legal service offices, including neighborhood defender service,240 bronx defenders,241 defender association of philadelphia,242 maryland office of the public defender,243 and brooklyn defender services,244 follow this multidisciplinary model. interdisciplinary legal teams would help enact the right to counsel’s role as a “fundamental safeguard to level the playing field for [individuals] and to engender a reliability in the results.”245 engaged multidisciplinary teams have led to successful outcomes for children and parents.246 c. stop criminalizing mothers in poverty to enact these recommendations would follow professor dorothy roberts’ call for non-reformist reforms, which are “measures that reduce the power of an oppressive system while illuminating the system’s inability to solve the crises it creates.”247 by enacting these reforms, parents’ counsel would be able to challenge more effectively the state’s claims against mothers who are incarcerated, thereby protecting these mothers’ 238 kara r. finck, a robust defense: the critical components for a reimagined family defense practice, 20 cuny l. rev. f. 96 (2017), http://www.cunylawreview.org/ reimagined-family-defense-finck [https://perma.cc/b4evua5g]. 239 still she rises, tulsa inc., https://www.stillsherises.org [https://perma.cc/ 7jnp-fucf] (last visited july 6, 2022). 240 services, neighborhood defender serv., https://neighborhooddefender.org/ services [https://perma.cc/95ez-zkr6] (last visited july 6, 2022). 241 about us, bronx defenders, https://www.bronxdefenders.org/who-we-are [https://perma.cc/6gyr-mwxu] (last visited july 6, 2022). 242 approach, defender ass’n. of phil., https://phillydefenders.org/approach [https://perma.cc/x8mr-ghlm] (last visited july 6, 2022). 243 about us, md. off. of the pub. defender, https://www.opd.state.md.us/aboutus [https://perma.cc/dgc3-edvn] (last visited july 6, 2022). 244 family defense, brooklyn defender servs., https://bds.org/our-work/familydefense [https://perma.cc/e2k5-cxn7] (last visited july 6, 2022). 245 kari hong, gideon: public law safeguard, not a criminal procedural right, 51 u. pac. l. rev. 741, 743 (2020) (discussing the right to counsel in criminal cases under the federal sixth amendment right to counsel). 246 affected by parental incarceration, supra note 22, at 8 (recommending that state caseworkers support multidisciplinary teams in family regulation cases and that caseworkers attempt to add parts of these teams into their cases); margolies & kraft-stolar, supra note 36, at 41–42 (“to avoid putting incarcerated parent defendants at an unfair disadvantage—and to decrease the possibility of unnecessary terminations—representations should be institutionalized to ensure that attorneys for parents have sufficient resources to conduct investigations, employ social workers, maintain legal support staff, and incorporate an interdisciplinary approach to their defense efforts.”). 247 dorothy e. roberts, how i became a family policing abolitionist, 11 colum. j. race & l. 455, 807 (quoting dan berger et al., what abolitionists do, jacobin (aug. 24, 2017), https://www.jacobinmag.com/2017/08/prison-abolitionreform-mass-incarceration [https://perma.cc/c55s-5gel]). 552 colum. j. race & l. [vol. 12:1 constitutional rights.248 their access to legal resources and to an interdisciplinary legal team would help “shrink rather than strengthen ‘the state’s capacity for violence’ and facilitate the goal of building a society without” the family regulation systems.249 as legal scholar and professor michelle alexander explained, the criminal legal system “permanently locks a huge percentage of the african american community out of the mainstream society and economy.”250 the family regulation system, in turn, locks mothers out of parenting their children, especially black children.251 because of the interlocked nature of the carceral state, the reforms proposed above address the symptoms of the problem, but they do not treat the disease itself.252 access to law libraries and legal resources in jails and prisons and the appointment of interdisciplinary teams do not address the number of mothers trapped within both systems overall. while mothers would have more legal support, their attorneys’ caseloads and pay may remain the same. legal teams will continue to contend with institutional barriers because of their clients’ incarceration. for example, the state will still be able to monitor legal visits, phone calls, and mails, and emails. defense lawyers’ difficulties in being able to have their mother-clients appear at court proceedings in person and to meet with them before and after would still exist. further, the nonreformist reforms will not eliminate the longstanding social narratives premised on racist and sexist troupes hurled upon mothers who are incarcerated.253 as one report noted, “if incarcerated women share one salient, seemingly inescapable characteristic, regardless of race, class, age or other factors, it is their invisibility. they are, quite literally, locked away—isolated, unseen, and in minimal contact with the world outside.”254 lawyers and their clients must defend against and address this stigma and so much more that mothers who are incarcerated face, while seeking to protect these mothers’ parental rights. these reforms do not free mothers from the carceral state. 248 roberts, systemic punishment, supra note 14, at 1498 (“the solution to the problem of maternal incarceration should be enforcement of the state’s obligation to facilitate reunification, not permanent disruption of children’s bonds with their mothers.”). 249 id. at 465 (citing dan berger et al., what abolitionists do, jacobin (aug. 24, 2017), https://www.jacobinmag.com/2017/08/prison-abolitionreform-mass-incarceration [https://perma.cc/c55s-5gel]). 250 the new jim crow, supra note 12 at 13. 251 alan j. dettlaff et al., racial bias, poverty, and the notion of evidence, 99 child welfare 61, 83 (2021) (evaluating the overwhelming evidence that documents the “racial disproportionality and disparities” for black children in the family regulation system). 252 cloud et al., supra note 18, at 72 (“[t]he injustices of these systems are intertwined and the solutions must be as well.”). 253 washington, supra note 120 (noting the need for counter-narratives, but also that attorneys’ counter-narratives are based on the states’ narratives). 254 margolies & kraft-stolar, supra note 36, at 4–6; dilallo, supra note 40 (quoting michelle alexander’s statement that recognizes how much society has ignored women and girls caught in the criminal legal system); mitchell & davis, supra note 132, at 424 (affirming that society has not recognized black motherhood and has rendered mothers with criminal involvement invisible). 2022] new jim & jane crow intersect 553 while other nonreformist reforms, like litigation and legislative modifications may exist, the best way to eliminate these legal obstacles is to stop investigating and separating people, chiefly black mothers, in both the family regulation and criminal systems. instead of throwing financial, time, and human resources into systems that have proven ineffective, racist, sexist, and biased and allow the repeated destruction of black families, the state should focus on fostering stronger safety nets to end family separation altogether. “if [mothers] had health care, housing and access to good jobs and education and community, there would be less crime and less need” for the state to regulate and police them and their families.255 the covid-19 pandemic proved how the family regulation system and the criminal legal system depend on trapping and punishing people in poverty, rather than supporting children.256 at the start of the pandemic in march 2020, government officials warned of the increase in child abuse cases as schools shut down.257 they feared that children would no longer be in the sight of the myriad of people required to report suspected child abuse, resulting in countless children allegedly suffering their abuse unprotected.258 the district attorney in bronx, new york, forewarned, “there are kids behind closed doors that may be trapped with their abusers and there’s no way for them to get help.”259 these unfounded fears never came to fruition. in fact, a year after schools and social services halted, family regulation system heads like david hansell, the commissioner of acs in new york city, admitted, “[i]t was just as likely that the pandemic was ‘a very positive thing’ for children, who were able to spend more time at home with their parents.”260 as professor anna arons notes, during the shutdown, “[f]amilies stayed safely together not because of the family regulation system but because of its absence . . . . [c]ommunity members worked for and with each other, providing their neighbors food, diapers, childcare, mental health services, and redistributing government wealth.”261 at the same time, as covid-19 raged through jails and prisons, some administrators and policymakers realized the importance of reducing the number of people entering and incarcerated in these facilities.262 for 255 ben kesslen, calls to reform, defund, dismantle and abolish the police, explained, nbc news (june 8, 2020) https://www.nbcnews.com/news/us-news/calls-reformdefund-dismantle-abolish-police-explained-n1227676 [https://perma.cc/wv69-js5v]. 256 kendra hurley, how the pandemic became an unplanned experiment in abolishing the child welfare system, the new republic (aug. 18, 2021), https:// newrepublic.com/article/163281/pandemic-became-unplanned-experiment-abolishing-childwelfare-system [https://perma.cc/zt29-6w24]. see also anna arons, an unintended abolition: family regulation during the covid-19 crisis, 12 colum. j. race & l. f. 1 (2022) (describing how the covid-19 pandemic resulted in less children entering the family regulation system and more families receiving support in ways that kept children safe in new york city). 257 hurley, supra note 256. 258 id.; fitzgerald, supra note 100. 259 hurley, supra note 256. 260 fitzgerald, supra note 100. 261 arons, supra note 256. 262 the most significant criminal justice policy changes from the covid-19 pandemic, prison pol’y initiative (nov. 24, 2021), https://www.prisonpolicy.org/ 554 colum. j. race & l. [vol. 12:1 example, then-attorney general william barr advised the federal bureau of prisons (“bop”) to reduce the prison population because of the devasting health risks covid-19 posed.263 the data showed that law enforcement has the ability decrease the jail and prison population by not charging people with low-level offenses264 and technical violations.265 these actions make communities safer.266 further, as the unemployment rate increased during the covid19 pandemic and fearing economic collapse, federal and state governments provided financial support to families.267 these measures included enlarged unemployment insurance funds,268 stimulus payments,269 and the child tax credit increased monthly payments.270 these safety net funds allowed some families to support their children and reduced the fear of unstable housing and food insecurity.271 one study found that black and virus/virusresponse.html [https://perma.cc/22v9-sd3z] (summarizing the different methods sheriffs, jail and prison administrators, state and local officials, governors, parole boards, prosecutors, probation officers, and courts employed to reduce the number of people arrested and in jails and prisons across the nation). 263 william barr, memorandum for director of bureau of prisons: increasing use of home confinement at institutions most affected by covid-19, off. of the att’y gen. 1, 1 (apr. 3, 2020), https://www.justice.gov/file/1266661/download [https://perma.cc/7uhge32v] (ordering bop “to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions”). 264 id. (explaining that prosecutors in brooklyn, new york and philadelphia, pennsylvania, decided not to charge people with low-level, nonviolent offenses and sought the release of people charged with non-violent offenses in march 2020). 265 id. (noting that colorado stopped arresting people for technical parole violations temporarily in march 2020 because of the pandemic). technical violations include “a missed appointment or unpaid fines or fees, rather than committing new offenses,” but they may result in re-arrest and time in jail or prison. swavola et al., supra note 26, at 32. 266 jasmine heiss et al., the scale of the covid-19-related jail population decline, vera inst. of just. 4 (2020), https://www.vera.org/downloads/publications/the-scale-ofcovid-19-jail-population-decline.pdf [https://perma.cc/ux8q-klj4] (“maintaining recent reductions and further reducing jail populations will make communities safer in the coming months and years by reducing the likelihood and severity of future outbreaks of covid-19 and enabling reinvestment of state and local dollars into community-based services and resources that support public health and public safety.”). 267 zachary parolin et al., monthly poverty rates among children after the expansion of the child tax credit, 5 poverty & soc. pol’y brief 1, 7 (2021) https://static1.squarespace.com/static/5743308460b5e922a25a6dc7/t/612014f2e6deed08adb 03e18/1629492468260/monthly-poverty-with-ctc-july-cpsp-2021.pdf [https://perma.cc/ r2mq-74sj]. 268 frances chen & em shrider, expanded unemployment insurance benefits during pandemic lowered poverty rates across all racial groups, u.s. census bureau (sept. 14, 2021), https://www.census.gov/library/stories/2021/09/did-unemploymentinsurance-lower-official-poverty-rates-in-2020.html [https://perma.cc/f7j9-qzpp]. 269 jason deparle, vast federal aid has capped rise in poverty, studies find, n.y. times (sept. 14, 2020), https://www.nytimes.com/2020/06/21/us/politics/coronaviruspoverty.html [https://perma.cc/ru69-ul3m] (describing the benefits families received and highlighting how government policies excluded certain families from receiving these benefits). 270 parolin et al., supra note 267, at 7. 271 deparle, supra note 269; stephen roll et al., state by state: how are families in the u.s. using their child tax credit payments?, soc. pol’y institute res. 4 (2021), https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1054&context=spi_research [https://perma.cc/z45n-uqf6] (finding that 51% of families used the child tax credit on food for their families, 36% paid essential bills, and 30% covered “clothing and other essentials for their children”); rachel louise ensign, monthly child-tax-credit payments cease, ending cushion for family budgets, wall st. j. (jan. 3, 2022), https://www.wsj.com/ 2022] new jim & jane crow intersect 555 latino children would have the “greatest gains” if all eligible families received these funds.272 these no strings attached payments kept an estimated six million children from poverty in july 2021.273 providing nostrings attached financial support helped address financial distress.274 yet again, the government’s response to the pandemic emphasized how effective less surveillance and more support would protect children and families from harm. with fewer mothers in the criminal legal system and family regulation system, defense counsel would be less overburdened with cases, they would not have to contend with the bad mother narrative that now engulfs their mother-clients, case strategy and communications would be more efficient, and mothers would be home with their children. the carceral state would have less control. however, the fear of allowing mothers, expressly black mothers, to parent overpowers the needs and best interests of the children the state claims to be protecting. racism, sexism, and bias increase the impact of these discriminatory systems on black mothers, in particular, and thereby, obstruct the ability of their lawyers to defend these mothers’ parental rights. v. conclusion the myth that lawyers succeed in serving parental interests effectively ignores the reality of mothers who are incarcerated. access to legal resources and multi-disciplinary teams within family regulation system cases will help address some of the challenges identified in this piece. that said, as activists and scholars critique the racism and discrimination inherent in both the criminal legal and family regulation systems, they must not ignore the processes that are destroying black families, mainly, across the nation. while states claim to be protecting children from “bad” or “dangerous” mothers, they are really reinforcing biased and harmful systems. dorothy roberts has reasoned, “black mothers are useful to the neoliberal agenda because state regulation of their bodies, already devalued by a long history of reproductive regulation and derogatory stereotypes of maternal irresponsibility, makes excessive policing by foster care and prison seem necessary to protect children and the public from harm.”275 the termination of parental rights, also known as the civil death penalty, is the ultimate outcome of too many families ensnared the criminal and family regulation systems, unnecessarily.276 we must recognize that articles/monthly-child-tax-credit-payments-cease-ending-cushion-for-family-budgets-11641 205801 [https://perma.cc/8zm8-bxd8] (describing the savings and benefits families received because of the child tax credit). 272 parolin et al., supra note 267 at 7. 273 id. 274 deparle, supra note 269; melody webb, building a guaranteed income to end the "child welfare" system, 12 colum. j. race & l. _ (2022) (emphasizing the financial discrimination used against black families within the family regulation system). 275 roberts, systemic punishment, supra note 14, at 1500. 276 id. at 1498 (noting that “the lengthy absence of parents for military duty, missions, career, or private substance abuse treatment” do not automatically warrant the civil death penalty”). 556 colum. j. race & l. [vol. 12:1 the united states incarcerates too many people and takes away children from too many parents, principally black mothers who live in poverty, and increases the likelihood that these children will be trapped in the criminal and family regulation systems.277 to have any chance of facing the countless layers within the carceral state, women who are incarcerated and their counsel in the family regulation system must have powerful tools available. with the nonreformist reforms, mothers who are incarcerated will be equipped to protect their parental rights better, but these reforms are only the start. with the ultimate goal of abolishing the racist and sexist criminal and family regulation systems, mothers ensnared in both systems, their legal teams, and advocates across the nation will continue to work to abolish the racist and sexist criminal and family regulation systems and dismantle the carceral state. 277 durkin et al., supra note 137, at 36 n.125. i. introduction ii. the new jim crow & the new jane crow: background a. the new jim crow & gender b. the new jane crow’s framework iii. tattered access to effective parents’ counsel a. defense counsel’s potential bias, time, & caseload constraints b. defense strategy c. case preparation & communication with mother d. challenges after mothers’ release from incarceration e. the carceral state’s damage iv. legal representation enhancement a. prison & jail law libraries b. multidisciplinary legal representation c. stop criminalizing mothers in poverty v. conclusion columbia journal of race and law vol. 15 may 2025 no. 1 note municipium, absens parens: rectifying monell and parens patriae for institutional liability mahak kumari1 abstract the impact of the carceral system and policing on youth led to the development of a separate juvenile system recognizing the special needs of young people. however, policing-based harm remains at the forefront of legal scholarship not just for its continued prevalence in the country as a whole, but also because of the disproportionate impact on black and brown people. this impact is compounded when the targets of police violence are youth, who are subjected to extreme force by police at higher rates in comparison to adults and their white youth counterparts. legal protections that purport to protect citizens’ rights inhibit victims from obtaining any meaningful recourse or compensation after experiencing the most heinous forms of police misconduct or violence. individual police officers are protected by qualified immunity, and institutional liability is an illusory concept due to the flawed and extremely high bars created by the monell framework. states have obligations to protect children under the parens patriae doctrine but are shielded from liability both because policing falls under municipal control and because the eleventh amendment provides states with sovereign immunity. municipalities responsible for police conduct and discipline lack a similar common law obligation to their vulnerable citizens. this note explores how the existing monell and parens patriae doctrines can be reformed and adapted to ensure that institutions not only have a duty to protect youth from policing-based harm, but also that this duty is enforced with mechanisms for finding liability. only with a meaningful pathway to liability for harm caused to youth at the hands of police can any real police accountability or long-term reform in policing be expected and racial disparities in this harm be addressed. 1 j.d. candidate 2026, columbia law school. the author would like to thank professor jeffrey fagan for his guidance and the staff of the columbia journal of race and law for their meaningful editorial assistance. 2025] municipium, absens parens 1291 introduction ......................................................................................................................... 1292 i. liability, duty, and standing to sue: municipalities and states in litigation ............ 1295 a. understanding the monell framework for municipal liability 1295 1. 1983 claims and the law before monell 1295 2. monroe overruled: a limited means of holding municipalities liable in § 1983 claims for police misconduct 1297 3. the monell framework and its four routes for liability 1301 b. states in loco parentis 1303 1. parens patriae protections and powers 1303 2. the vulnerability of youth and how parens patriae claims to protect juveniles 1307 ii. current frameworks fail to provide adequate avenues for relief, affording institutions with boundless powers and little to no duties. ......................................................... 1309 a. cities and municipalities escape liability under monell’s exceptionally high standard 1309 1. monell’s rejection of respondeat superior is based on a flawed understanding of the sherman amendment 1309 2. monell’s four approaches to liability are an unusually high standard 1313 3. police officers have unfettered immunity and face no consequences for the most egregious constitutional violations; youth of color bear the cost 1317 b. parens patriae provides a mechanism for enforcing rights through standing to sue, but fails to enforce duties by creating standing to be sued 1321 1. parens patriae’s sovereignty requirement allows municipalities to avoid responsibility for their most vulnerable citizens 1322 2. parens patriae provides a mechanism for enforcing rights through standing to sue, but fails to enforce duties by creating standing to be sued 1323 iii. modern-day misconduct warrants a modern-day understanding and expansion of institutional liability frameworks .............................................................................. 1326 a. modernizing monell for minors 1327 1. respondeat superior for minors’ major monell claims 1327 2. nonenforcement of mandatory reporting and disciplinary policies for policing constitute tolerance of ignorance of state law 1329 b. the municipal parent: a twofold approach to a local analog for parens patriae 1331 conclusion .......................................................................................................................... 1335 1292 colum. j. race & l. [vol. 15:1290 introduction during the summer of 2013, 17-year-old yunek moore was celebrating her graduation with a bonfire at her friend’s home. sitting in the backyard, she was suddenly face-to-face with a bright light shining directly in her eyes as she heard someone asking for her id. confused and unaware that police officers had been called to the scene, yunek did not immediately comply. within moments, she was violently grabbed by three officers, dragged to the front yard, slammed into a brick wall, handcuffed and thrown against the police car, unlawfully searched, and forced into the back of the car and taken to the county jail. the only words spoken to her during this ordeal were “shut the hell up.”2 yunek required “three surgeries, steroid injections, and physical therapy” as she recovered from the injuries inflicted upon her by these officers.3 for years, she fought to hold someone accountable for the harms she suffered, including bringing a § 1983 claim, a state battery claim, and a respondeat superior claim against the city, but to no avail.4 from trayvon martin to george floyd, the abuse of power that police forces engage in is well-documented, as is the lack of repercussions that follow the most egregious instances of police misconduct and violence. section 1983 is a federal law designed as a remedy for constitutional violations against individuals.5 but generally, and especially when it comes to policing, the various limitations to § 1983 claims have made relief difficult, if not impossible. yunek’s case, therefore, is the norm, rather than the exception. 2 moore v. dotson, 2017 wl 376149, case no. 1:14–cv–01220–jes–jeh (2017); yunek moore, being black is not a crime: yunek's story of police brutality, american civil liberties union, https://www.aclu.org/news/criminal-law-reform/being-black-not-crime-yuneks-story-police [perma] [hereinafter being black is not a crime]. 3 moore, being black is not a crime, supra note 1. 4 moore v. dotson, 2017 wl 376149, case no. 1:14–cv–01220–jes–jeh (2017). 5 city of monterey v. del monte dunes at monterey, ltd., 526 u.s. 687, 727 (1999) (scalia, j., concurring) ("[section 1983] is designed to provide compensation for injuries arising from the violation of legal duties, and thereby, of course, to deter future violations." (citation omitted)). 2025] municipium, absens parens 1293 qualified immunity creates a “good faith” defense for police officers even when they violate individuals’ constitutional rights, making it difficult to succeed on a § 1983 claim against an individual officer.6 the monell framework provides pathways for municipal liability but makes proving this liability a near-impossible feat.7 and while the common law doctrine of parens patriae imposes an obligation on states to act in protection of vulnerable populations like children, this doctrine does not apply to municipalities;8 police departments’ status as municipal organizations under local governments coupled with state sovereign immunity under the eleventh amendment protect municipalities and states, respectively, from being subject to any kind of litigation under parens patriae when it comes to police misconduct.9 this lack of institutional liability for wrongs at the hands of police results in little to no consequences for police officers or departments and fails to deter future misconduct, hampering essential police reform.10 these costs are exacerbated in the juvenile context, where youth are at a greater risk of 6 piersen v. ray, 386 u.s. 547, 555–57 (1967) (“the legislative record gives no clear indication that congress meant to abolish wholesale all common-law immunities.”); id. at 554 (“we hold that the defense of good faith and probable cause, which the court of appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.”). this immunity started out based on the subjective intentions of the officer in question, later being changed to require a violation of “clearly established” law to overcome qualified immunity, and defining “clearly established” as “when a prior supreme court or circuit court opinion has held unconstitutional virtually identical behavior.” accordingly, officers are, far more often than not, afforded qualified immunity for constitutional violations. see nancy leong, municipal failures, 108 cornell l. rev. 345, 356–57 (2023) (“the supreme court has described the doctrine as a robust defense that shields ‘all but the plainly incompetent or those who knowingly violate the law.’” (citing malley v. briggs, 475 u.s. 335, 341 (1986))); alexander reinert, joanna c. schwartz & james e. pfander, new federalism and civil rights enforcement, 116 nw. u. l. rev. 737, 753 (2021). 7 see infra part ii a; see also, joanna c. schwartz, municipal immunity, 109 va. l. rev. 1181, 1199–1200 (2023) [hereinafter municipal immunity]; reinert, schwartz & pfander, supra note 5, at 753 (“qualified immunity doctrine often operates in tandem with limits on municipal liability to frustrate the goals of government accountability.”). 8 infra note 133. 9 see infra part ii b.2. 10 see infra part ii a.3; see also, joanna c. schwartz, police indemnification, 89 n.y.u. l. rev. 885 (2014) [hereinafter police indemnification] (“officers across the country engage in tens of millions of civilian interactions— and use force against civilians hundreds of thousands of times—each year. yet even people who believe the police have mistreated them rarely take legal action. and even when officers are sued, the suits have limited—if any— negative ramifications for officers' employment.”); joanna c. schwartz, what police learn from lawsuits, 33 cardozo. l. rev. 841, 863–64 (2012) [hereinafter what police learn] (noting that only 1% of people who believe they have suffered police mistreatment file suit, as reported by the bureau of justice). 1294 colum. j. race & l. [vol. 15:1290 trauma and can face long-term impacts from any encounter with police, let alone encounters that involve misconduct and violence.11 police forces regularly engage in “excessive displays of force” with youth overall in comparison to adults, and especially with youth of color.12 in fact, the disproportionate impact on youth of color further highlights concerns regarding the absence of consequences and liability available when young people experience police misconduct and violations of their constitutional rights, making reform in this area increasingly necessary. while extensive research has investigated the impact of policing, violence, and misconduct, and, separately, the role of states as guardians of children in the context of the foster care system, this note explores the relationship juveniles have with the city and state through policing and the duties governments have to protect children from such harm. additionally, this note examines current frameworks for relief after instances of police violence and misconduct, highlighting how such systems not only provide boundless immunity to individual police officers, but also structurally prevent institutional liability, leaving victims with little to no recourse. part i discusses the role of various levels of government in litigation, from a municipality’s potential liability for harm caused by public officials to a state’s responsibility to its citizens—particularly children—manifested in its standing to sue as parens patriae. part ii identifies the illusory solutions that the municipal liability frameworks provide and details how the powers that states hold lack complementary duties and consequences when those same entities fail in their roles. finally, part iii posits potential solutions that can be undertaken to ensure child victims of police violence can actually qualify for relief and how institutions, rather 11 practices in modern policing: police-youth engagement, int’l assoc. of chiefs of police 1 (nov. 30, 2018), https://www.theiacp.org/resources/document/practices-in-modern-policing-police-youthengagement [https://perma.cc/9849-elpk]; see also, infra part ii b.2. 12 lisa h. thurau, rethinking how we police youth: incorporating knowledge of adolescence into policing teens, 29 child. legal rts. j. 30, 31 (2009). 2025] municipium, absens parens 1295 than individuals, can be made to take on the responsibility for the constitutional violations that occur at the hands of police, both to provide adequate compensation for victims and to ensure deterrence and long-term police reform. i. liability, duty, and standing to sue: municipalities and states in litigation a. understanding the monell framework for municipal liability 1. 1983 claims and the law before monell section 1983, titled “civil action for deprivation of rights,” provides that, [e]very person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the united states or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws is liable to that individual.13 the provision was created with the purpose of providing a “remedy where state law was inadequate” or where a state remedy was “not available in practice.”14 the supreme court had found in 1879 that the equal protection clause can be enforced against public officials—such as police officers—acting in their official capacities (whether acting appropriately or misusing their powers) when they violate an individual’s constitutional rights.15 in 1961, the court addressed whether § 1983, specifically, was intended to provide a remedy to these individuals deprived of their constitutional rights by such a public official. in monroe v. pape, the court held that congress did, in fact, intend for § 1983 to provide a remedy for constitutional violations by public officials but that the official could only be held 13 42 u.s.c.a. § 1983. 14 monroe v. pape, 365 u.s. 167, 173–74 (1961). 15 ex parte virginia, 100 u.s. 339, 346 (1879) (“the prohibitions of the fourteenth amendment are directed to the states, and they are to a degree restrictions of state power. it is these which congress is empowered to enforce, and to enforce against state action, however put forth, whether that action be executive, legislative, or judicial.”). 1296 colum. j. race & l. [vol. 15:1290 individually liable for those actions.16 in other words, a municipality could never be held liable for the public official’s actions as the municipality would not constitute a person within the meaning of the statute.17 the basis of the decision in monroe was congress’s rejection of the sherman amendment, which had been a proposed addition to the civil rights act of 1871 (the predecessor to § 1983).18 the amendment suggested holding cities liable when acts of violence in the city resulted in injury or harm to a person.19 though it was adopted by the senate, the amendment was expressly rejected by the house of representatives.20 instead, § 1983 was adopted with no mention of municipal liability.21 in examining this legislative history, the court concluded in 16 365 u.s. 167, 191 (1961) (overruled by monell v. dep’t of soc. servs. of city of new york, 436 u.s. 658 (1978)) (“the response of the congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the act of april 20, 1871, was so antagonistic that we cannot believe that the word ‘person’ was used in this particular act to include them.”). a municipality is defined as a political unit that is incorporated for local self-governance, and it encompasses entities such as cities, towns, and villages. see webster’s ii new college dictionary 210 (3d ed.2005) (“[a city is] an incorporated [] municipality with definite boundaries and legal powers set forth in a charter granted by the state. . . . [a municipality is a] political unit, as a city, town, or village, incorporated for local self-government.”). municipalities are typically responsible for functions like parks and recreation, housing, emergency medical services, fire departments, and, most relevant to this note, police departments. see state and local government, white house, https://obamawhitehouse.archives.gov/1600/state-and-local-government [https://perma.cc/682u-vn4f] (last accessed apr. 14, 2025) (“local governments generally include two tiers: counties. . . and municipalities, or cities/towns.”). 17 supra note 15. 18 achtenberg, infra note 79, at 2186 n.10 (2005) (“section 1983 is derived from section 1 of the civil rights act of 1871 (also known as the "ku klux act"). act of apr. 20, 1871, ch. 22, 1, 17 stat. 13. the ku klux act was enacted by the forty-second congress.”); john t. ryan, jr., malicious prosecution claims under section 1983: do citizens have federal recourse?, 64 geo. wash. l. rev. 776, 781–82 (1996) (“because the federal government was having trouble enforcing the provisions of the fourteenth amendment following the end of the civil war, congress enacted the civil rights act of 1871. the first section of the civil rights act was the precursor to § 1983.”); monell v. dep’t of soc. servs. of city of new york, 436 u.s. 658, 664 (1978) (“the sole basis for [the decision in monroe v. pape] was an inference drawn from congress’ rejection of the ‘sherman amendment to the bill which became the civil rights act of 1871, 17 stat. 13, the precursor of § 1983.”). 19 monroe, 365 u.s., at 188 (“when the bill that became the act of april 20, 1871, was being debated in the senate, senator sherman of ohio proposed an amendment which would have made ‘the inhabitants of the county, city, or parish’ in which certain acts of violence occurred liable ‘to pay full compensation’ to the person damaged or his widow or legal representative.”); cong., globe, 42d cong., 1st sess., p. 663. 20 monroe, 365 u.s., at 190 (“the objection to the sherman amendment stated by mr. poland was that ‘the house had solemnly decided that in their judgment congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law.’”). 21 42 u.s.c.a. § 1986 (“every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do . . . shall be liable . . .”). 2025] municipium, absens parens 1297 monroe that “congress did not undertake to bring municipal corporations within the ambit of [§ 1983].”22 more specifically, the court’s decision meant that governments were “wholly immune from suit under § 1983.”23 2. monroe overruled: a limited means of holding municipalities liable in § 1983 claims for police misconduct just under two decades after monroe v. pape, the supreme court reversed its decision. in 1978, female employees at the department of social services and the board of education of the city of new york brought a class action against both the department and board (and their commissioner and chancellor) as well as against the city of new york and its mayor, claiming that the policies of the board and department forced pregnant employees to take unpaid leaves of absence in violation of their constitutional rights.24 according to the district court, the ruling from monroe v. pape did not allow for backpay from the entities named in the suit—the department, the board, and the city of new york.25 upon grant of certiorari, the supreme court addressed a question it had left unanswered the previous year26—whether local government 22 monroe, 365 u.s., at 187–88 (“in a second conference the sherman amendment was dropped and in its place § 6 of the act of april 20, 1871, was substituted. this new section, which is now r.s. § 1981, 42 u.s.c. § 1986, 42 u.s.c.a. § 1986, dropped out all provision for municipal liability. . . .”); susanah m. mead, 42 u.s.c. § 1983 municipal liability: the monell sketch becomes a distorted picture, 65 n.c. l. rev. 517, 525 (1987) (“from the negative reactions to municipal liability expressed in [the congressional debates accompanying consideration of the civil rights act of 1871], the court inferred that congress could not have intended the word ‘person’ in section 1983 to include municipalities.”). 23 monell v. dep’t of soc. servs. of city of new york, 436 u.s. 658, 663 (1978). 24 monell, 436 u.s. at 660–61 (“the gravamen of the complaint was that the board and the department had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons.”). 25 id. (“[p]laintiffs' prayers for backpay were denied because any such damages would come ultimately from the city of new york and, therefore, to hold otherwise would be to ‘circumven[t]” the immunity conferred on municipalities by [monroe v. pape].’”). 26 mt. healthy city bd. of educ. v. doyle, 429 u.s. 274, 279 (1977) (“the related question of whether a school district is a person for purposes of § 1983 is likewise not before us. we leave those questions for another day, and assume, without deciding, that the respondent could sue under § 1331 without regard to the limitations imposed by 42 u.s.c. § 1983.”). 1298 colum. j. race & l. [vol. 15:1290 officials and local independent school boards are considered “persons” under § 1983. in so doing, the court overruled monroe.27 the sherman amendment, which formed the basis of the monroe decision, did not seek to alter any part of § 1983 but rather another section of the civil rights act.28 yet, the court in 1961 had reached the conclusion that the house’s rejection of the amendment meant congress had no power to ever impose liability on a local government or municipality under § 1983.29 the court’s original analysis of the legislative history and congress’s reaction to the sherman amendment was flawed.30 first, the objection to the sherman amendment did not preclude the creation of any municipal liability. senator sherman had introduced the amendment as a direct response to ongoing ku klux klan (kkk) attacks so that those with property in a city or municipality could support the enforcement of civil rights laws when kkk violence ensued because their property would be “responsible” for damages.31 however, unlike most state riot statutes, the sherman amendment lacked any statute of limitations and “imposed liability on the government defendant whether or not it had notice of the impending riot, whether or not the municipality was authorized to exercise a police power, whether or not it exerted all reasonable efforts to stop the riot, and whether or not the rioters were caught and punished.”32 in other 27 monell, 436 u.s. at 663 (“[w]e now overrule monroe v. pape, supra, insofar as it holds that local governments are wholly immune from suit under § 1983.”). 28 monell, 436 u.s. at 664 (“although the sherman amendment did not seek to amend § 1 of the act, which is now § 1983, and although the nature of the obligation created by that amendment was vastly different from that created by § 1, the court nonetheless concluded in monroe that congress must have meant to exclude municipal corporations from the coverage of § 1.”); id. at 665 (discussing the proposal of h.r. 320, the bill that eventually became the civil rights act of 1871, and noting that section 1 of h.r. 20 is now codified as 42 u.s.c. § 1983 and “was the subject of only limited debate and was passed without amendment” while sections 2 through 4 . . . were the subject of almost all congressional debate and each of these sections was amended”). 29 supra note 19 and accompanying text. 30 supra note 24. 31 monell, 436 u.s. at 667 (“senator sherman explained that the purpose of his amendment was to enlist the aid of persons of property in the enforcement of the civil rights laws by making their property “responsible” for ku klux klan damage.”); achtenberg, supra note 80, at 2196 (2005) (describing the sherman amendment as “a proposal to make cities liable for injuries resulting from the depredations of the ku klux klan or from similar mob violence”). 32 monell, 436 u.s. at 668. 2025] municipium, absens parens 1299 words, the problem with the sherman amendment—and the reason for the house’s rejection of it—was not a resistance to all municipality liability under § 1983, but rather the unbounded liability that the amendment seemed to propose.33 second, proponents and opponents of the sherman amendment disagreed largely on the issue of state sovereignty and federal authority. proponents relied on prigg v. pennsylvania, in which the court held that slaveowners had a federal right under article iv to the possession of their slaves and, since state remedies for recovering a runaway slave could be inadequate, congress possessed the power under the necessary and proper clause to also ensure a remedy associated with this federal right.34 consequently, the fourteenth amendment also provided a federal constitutional right, making “a remedy against municipalities and counties . . . an appropriate—and hence constitutional—method for ensuring the protection[s]” guaranteed by the equal protection clause.35 on the other hand, opponents of the amendment agreed that the fourteenth amendment created a federal right but argued that the federal government still did not have the authority to require municipalities to create police forces to enforce this right, whether they did it directly by command or indirectly by allowing for municipality liability for failure to “keep[] the peace.”36 so, why did the monell court overrule monroe despite these issues of state sovereignty? the court reasoned that imposing civil liability for damages under § 1983 did not create an 33 in fact, “the same congress that passed the civil rights act also had recently defined the word ‘person’ so that it could include ‘bodies politic and corporate,’ tending toward a conclusion that this congress intended municipalities to be liable under section 1983.” see mead, supra note 21, at 526 (1987). 34 see prigg v. pennsylvania, 41 u.s. 539 (1842). 35 monell, 436 u.s. at 672. 36 monell, 436 u.s. at 673–79 (“[t]here was ample support for blair's view that the sherman amendment, by putting municipalities to the hobson's choice of keeping the peace or paying civil damages, attempted to impose obligations on municipalities by indirection that could not be imposed directly, thereby threatening to ‘destroy the government of the states.’” (quoting cong. globe, 42d cong., 1st sess., 795 (1871))). 1300 colum. j. race & l. [vol. 15:1290 obligation upon municipalities.37 instead, municipalities that would already have an obligation under state law to “keep the peace” would be held liable for failing to do so as their failure would constitute a violation of the fourteenth amendment.38 in so abandoning the monroe court’s misplaced reliance on the legislative debate behind the sherman amendment,39 the monell court reexamined the question of whether municipalities can constitute “persons” under the statute, finding that congressional intent supported an answer in the affirmative.40 while allowing for municipal liability under § 1983, the monell court simultaneously limited the scope of this liability, noting that a governmental entity can only be held liable under § 1983 if the constitutional violation in question is a result of a policy adopted by that entity.41 accordingly, the court rejected the theory of respondeat superior as a basis for its decision when it added that “a municipality cannot be held liable solely because it employs a tortfeasor.”42 using the language of § 1983, the court found that the statute requires proof of causation, 37 monell, 436 u.s. at 679 (“first, opponents expressly distinguished between imposing an obligation to keep the peace and merely imposing civil liability for damages on a municipality that was obligated by state law to keep the peace, but which had not in violation of the fourteenth amendment.”). 38 id. (“‘but the enforcing a liability, existing by their own contract, or by a state law, in the courts, is a very widely different thing from devolving a new duty or liability upon them by the national government, which has no power either to create or destroy them, and no power or control over them whatever.’” (quoting cong. globe, 42d cong., 1st sess., 794 (statement of rep. poland))). 39 monell, 436 u.s., at 683 (“[i]t is readily apparent that nothing said in debate on the sherman amendment would have prevented holding a municipality liable under § 1 of the civil rights act for its own violations of the fourteenth amendment.” 40 monell, 436 u.s. at 690 (“our analysis of the legislative history of the civil rights act of 1871 compels the conclusion that congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.”). at the time of passage of the civil rights act of 1871, corporations had been recognized as persons in both constitutional and statutory analysis. see lousville r. co. v. letson, 2 how. 497, 558 (1844) (“[a] corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an artificial person, . . . capable of being treated as a citizen of that state, as much as a natural person.”). this letson principle was then extended to include municipal corporations. see cowles v. mercer county, 7 wall. 118, 121 (1869); see also, act of feb. 25, 1871, § 2, 16 stat. 431 (“[i]n all acts hereafter passed . . . the word ‘person’ may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense.”). 41 monell, 436 u.s. at 690 (“local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.”). 42 monell, 436 u.s. at 691. 2025] municipium, absens parens 1301 precluding a vicarious imposition of liability on a municipality for the actions of its employees.43 under this approach, therefore, if an employee misapplies an otherwise constitutional city policy in an unconstitutional way, the municipality would not automatically be liable as that would require relying on the respondeat superior theory that monell expressly rejected.44 what constitutes an official policy or custom has been a developing question since the monell decision. in a series of cases since, the monell doctrine has been further interpreted to include four distinct routes to getting municipal liability under § 1983, all of which uphold the case’s original rejection of the theory of respondeat superior by requiring a deliberate choice made by the municipality as well as a causal relationship between that choice and the constitutional violation.45 3. the monell framework and its four routes for liability the first two avenues for monell liability come from the monell decision itself. the first way a municipality can be held liable for a constitutional violation by an individual employee is if that violation implements an official policy that the municipality’s lawmakers have adopted.46 the second involves custom-based liability, under which a municipality is held liable if the 43 see monell, 436 u.s. at 692–93 (“indeed, the fact that congress did specifically provide that a’s tort became b’s liability if b ‘caused’ a to subject another to a tort suggests that congress did not intend § 1983 liability to attach where such causation was absent.”); see also, 42 u.s.c.a. § 1983 (“[a]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any state, shall subject, or cause to be subjected, any person . . . ” (emphasis added)). 44 city of canton, ohio v. harris, 489 u.s. 378, 387 (1989). 45 see pembaur v. cincinnati, 475 u.s. 469, 483–84 (1986) (plurality) (“municipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the officials or officials responsible for establishing final policy with respect to the subject matter in question.”); see also, board of county com’rs of bryan county, okl. v. brown, 520 u.s. 397, 397 (1997) (requiring that “a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights”). 46 see monell, supra note 40. 1302 colum. j. race & l. [vol. 15:1290 employee engaging in the constitutional violation was acting pursuant to a governmental custom, even if that custom is not officially written into law.47 the third route to municipal liability under the monell doctrine is based on inadequate training or supervision. referring back to the example of an employee misapplying an otherwise constitutional municipal policy, a monell claim would be successful against the municipality in such an instance if it is shown that the employee was not properly trained and that the failure to train resulted in the constitutional violation.48 this route to monell liability expands the doctrine beyond just unconstitutional policies while remaining true to the rejection of respondeat superior by stipulating that failure to train can only be the basis for monell liability when that failure to train “amounts to deliberate indifference to the rights of persons with whom the [employees] come into contact.”49 liability attaches under this route after consideration of questions such as whether the training of employees is inadequate, whether the inadequacy is related to the constitutional violation, whether the training would have prevented the injury, and whether the inadequacy can be said to represent city policy.50 the fourth and final route to monell liability is hiring-based liability; if a municipality’s employee engages in a constitutional violation, the municipality can be held liable under § 1983 for failure to adequately screen the employee before hiring.51 achieving hiring-based liability is a 47 see monell, 436 u.s. at 690 (“[l]ocal governments, like every other § 1983 ‘person, by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body's official decisionmaking channels.”); see also, adickes v. s. h. kress & co., 398 u.s. 144, 167–68 (1970) (“congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . . . . although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”). 48 city of canton, supra note 43. 49 id. at 388. 50 id. at 389–91. 51 board of county com’rs of bryan county, 520 u.s. 397, 411 (1997) (“a plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision.”). 2025] municipium, absens parens 1303 high standard, requiring proof of more than just a generally inadequate inquiry into a potential employee’s background.52 the failure to adequately screen should show “deliberate indifference” to qualify,53 and the basis for a claim under hiring-based liability cannot just be a probability that the employee in question would have engaged in constitutional violations, but rather that the employee was “highly likely to inflict the particular injury suffered by the plaintiff.”54 the issue of municipal liability inevitably raises the question of what duties a government generally owes its citizens. this is all the more important in the case of juveniles. monell examines how to achieve municipal liability when it comes to police misconduct generally, but this framework is not specifically catered to youth and is unrelated to state governments; after all, police departments fall under city jurisdiction. states, in contrast, are governed by entirely different doctrines of rights, liabilities, and duties, some of which invoke the special status and needs of youth as a vulnerable population. b. states in loco parentis 1. parens patriae protections and powers the doctrine of parens patriae sheds light on the responsibilities and rights of states as guardians of their citizens.55 parens patriae, latin for “parent of the country or homeland,” finds its roots in english common law, under which the king had certain powers as the “father of the country.” in england, this power was used on behalf of minors and those who were incapable of 52 id. (“sheriff moore's own testimony indicated that he did not inquire into the underlying conduct or the disposition of any of the misdemeanor charges reflected on burns' record before hiring him. but this showing of an instance of inadequate screening is not enough to establish ‘deliberate indifference.’”). 53 id. (“only where adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute ‘deliberate indifference.’”). 54 id. at 412. 55 see infra part ii b. 1304 colum. j. race & l. [vol. 15:1290 caring for themselves (namely the mentally disabled).56 in the united states, the parens patriae role of states was first recognized in 1900 on the basis of a quasi-sovereign interest in the litigation, defined as “a set of interests that the state has in the well-being of its populace.”57 today, the parens patriae doctrine recognizes the state as a person, places certain individuals under the protection of the state, and allows the state to bring a lawsuit on behalf of those citizens.58 this doctrine has been applied to environmental issues, interstate commerce, antitrust, and more.59 in fact, it has also been used in police misconduct cases, recognizing the sovereign interest that arises for a state in preventing constitutional violations in policing. for instance, the state of pennsylvania brought a § 1983 claim against the borough of millvale over unconstitutional conduct by its police, resulting in a finding of a “longstanding and continuing pattern of police misconduct that violated constitutional rights, threatened individual security, undermined the state’s law enforcement functions, and thus directly affected the health and welfare of the state.”60 56 jack ratliff, parens patriae: an overview, 74 tulane. l. rev. 1847 (2000); see also, parens patriae, cornell legal information institute, https://www.law.cornell.edu/wex/parens_patriae [https://perma.cc/h9g6-uqtt] (last visited apr. 14, 2025). 57 alfred l. snapp & son. inc. v. puerto rico, 458 u.s. 592, 602 (1982) (noting that a state’s quasi-sovereign interest includes “interest in the health and well-being—both physical and economic—of its residents in general” but adding that “more must be alleged than injury to an identifiable group of individual residents,” such as “injury to a sufficiently substantial segment of its population”); see also, louisiana v. texas, 176 u.s. 1, 19 (1900) (recognizing a state would have an interest in litigation as parens patriae when “the matters complained of affect her citizens at large.”); pennsylvania v. new jersey, 426 u.s. 660, 666 (1976) (“[a] state has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.”). 58 black’s law dictionary 1221 (9th ed. 2009) (describing parens patriae as “a doctrine by which a government has standing to prosecute a lawsuit on behalf of a citizen”); black’s law dictionary 1003 (5 th ed. 1979) (noting that parens patriae recognizes the state as having a role as a sovereign and a guardian of those with legal disability). 59 bachynsky v. texas, 747 s.w.2d 868, 869 (tex. 1988) (“[v]arious causes of action may be asserted parens patriae—environmental pollution, public nuisance, trade barriers, antitrust violations, employment discrimination…”). 60 amelia c. waller, state standing in police-misconduct cases: expanding the boundaries of parens patriae, note, 16 ga. l. rev. 865, 883 (1982) (discussing pennsylvania v. porter and the use of parens patriae power for the state to join litigation). 2025] municipium, absens parens 1305 it is the invocation of the parens patriae doctrine, in fact, that justifies the creation of agencies such as child protective services designed with the intention of serving vulnerable populations by assigning the state as a de facto parent with certain duties and rights that enable it to step in and override parental rights.61 however, the quasi-sovereign interest requirement remains, even when it comes to the abuse and neglect of children. for example, while the state is assigned as a protector of children under parens patriae, the state has the right to take action on behalf of a child (such as by intervening and separating a child from his or her family on the basis of alleged abuse) because of the existence of its interests outside of protecting the child in question (separate interests like the maintenance of family autonomy and efficient use of public resources).62 the presence of these interests justify the state’s involvement and intervention on behalf of children. as these interests can sometimes be antithetical to the protection of the child, states make the choice to intervene by balancing these interests against the protection of the child.63 further, parens patriae is not limited to the state’s rights in taking action in protection of children—the doctrine purports to provide “not merely authority but a duty to the vulnerable.”64 under parens patriae, the government has a general duty to ensure the welfare of children and 61 schall v. martin, 467 u.s. 253, 265 (1984) (“children, by definition, are not assumed to have the capacity to take care of themselves. they are assumed to be subject to the control of their parents, and if parental control falters, the state must play its part as parens patriae.”); sable communications of california, inc. v. fcc, 492 u.s. 115, 126 (1989) (“we have recognized that there is a compelling interest in protecting the physical and psychological wellbeing of minors”); late corporation of the church of jesus christ of latter-day saints et al. v. united states, 136 u.s. 1, 57 (1890) (“this prerogative of parens patriae is inherent in the supreme power of every state, whether that power is lodged in a royal person or in the legislature [and] is a most beneficent function . . . often necessary to be exercised in the interests of humanity, and for the prevention of injury to those who cannot protect themselves.”); judith areen, intervention between parent and child: a reappraisal of the state’s role in child neglect and abuse cases, 68 geo. l. j. 893 (1975) (“the state acts as the primary protector of children from abuse or neglect.”). 62 areen, supra note 60, at 893–94 (1975). 63 id.; see also, schall, supra note 60 (“[t]he juvenile’s liberty interest may, in appropriate circumstances, be subordinated to the state’s ‘parens patriae interest in preserving and promoting the welfare of the child.’” (quoting santosky v. kramer, 455 u.s. 745, 766 (1982)). 64 daniel l. hatcher, purpose vs. power: parens patriae and agency self-interest, 42 n. m. l. rev. 159 (2012). 1306 colum. j. race & l. [vol. 15:1290 the obligation to intervene where necessary for the prevention of harm to a child. under the principle of “best interests of the child,” the state has both the right and the duty “to act for the protection of the individual and then only in his or her best interests.”65 perhaps the quintessential example of parens patriae when it comes to children is mandatory reporting laws.66 for example, new jersey’s “report of abuse” statute creates an obligation that any person “having reasonable cause to believe that a child has been subjected to child abuse . . . shall report the same immediately.”67 similarly, parens patriae is evident as a basis for mandatory reporting laws in several states.68 notably, these mandatory reporting laws identify a variety of individuals that are considered mandatory reporters, including law enforcement officials.69 thus, the parens patriae doctrine does not only apply to intervention over parental rights. in fact, it creates a duty to act to protect children from a variety of harms, including the type of harm that can be inflicted by the police.70 parens patriae as applied to children is a particularly 65 in re female s., 111 misc 2d 313, 315 (fam. ct., ny cnty. 1981) (quoting gonzaga law review, brian j. and lesly a. bowers at vol. 13 p. 625, 638); see also, application of norman, 26 misc.2d 700, 703 (sup. ct., nassau cnty 1960) (“[t]he court acts as parens patriae to do what is best for the interest of the child and puts itself in the position of a ‘wise, affectionate and careful parent’ . . . by virtue of the prerogative which belongs to the state as parens patriae.”) 66 state v. bogan, 200 n.j. 61, 75–76 (2009) (“the community caretaking role of the police also extends to protecting the welfare of children. indeed, that community caretaking responsibility is a reflection of the state's general parens patriae duty to safeguard children from harm.”). 67 n.j. st 9:6–8:10. 68 see, e.g., rcw 26.44.030(1)(a) (requiring professionals in various positions, including law enforcement, school and medical personnel, and social service counselors to name a few, to report evidence of abuse or neglect); c.g.s.a. § 17a–101(a) (“the public policy of this state is: to protect children . . . and for these purposes to require the reporting of suspected child abuse or neglect . . .”); n.y. soc. serv. law § 411 (“it is the purpose of this title to encourage more complete reporting of suspected child abuse and maltreatment . . .”); n.y. soc. serv. law § 491(1)(a) (“mandated reporters shall report allegations of reportable incidents to the vulnerable persons' central register. . . .”); grant v. cuomo, 130 a.d.2d 154, 188 (1987) (rosenberger, j. dissenting) (“one aim of social services law article 6, title 6, is to encourage reporting and investigation of suspected child abuse and maltreatment by establishing, in each county, ‘a child protective service capable of investigating such reports swiftly and competently’ (social services law § 411).”). 69 supra note 67; see also, n.y. soc. serv. law § 413. 70 for instance, in cases involving the juvenile courts, it has been found that “the state is parens patriae rather than prosecuting attorney and judge” such that its objective is to rehabilitate and protect the child (and society) but not to fix criminal responsibility. see kent v. u.s., 383 u.s. 541, 554 (1966). 2025] municipium, absens parens 1307 necessary and salient use of the doctrine, both in general and in the context of policing, because adolescents are fundamentally different from, and more vulnerable than, adults. 2. the vulnerability of youth and how parens patriae claims to protect juveniles research shows that the human brain does not fully develop until the midto late 20s, so adolescents are not only prone to impulsivity, risk-taking, and outside influences—traits linked to contacts with the police and justice system—but they are also vulnerable to the harmful impacts of policing, particularly when it is abusive.71 prior to adulthood, juveniles have been described as “vulnerable, malleable, and in need of adult guidance.”72 this reasoning was the basis of the formation of the juvenile court system, recognizing the lowered moral culpability of youth and their need for rehabilitative services, rather than punishment, in line with the goals of parens patriae.73 the justice system and policing heavily impact youth; over four million youth in the 16– 17 age bracket interact face-to-face with law enforcement each year.74 furthermore, according to a 2020 nyc civilian complaint review board (ccrb) report of police misconduct and youth in new york, though youth rarely report police misconduct, examining only a short period of time (complaints received between january 1, 2018, and june 30, 2019, and closed by december 31, 2019) revealed 407 complaints that involved at least one youth.75 the harms that follow police interactions that involve frisks, violence, or misconduct, include anxiety, posttraumatic 71 see int’l assoc. of chiefs of police, supra note 10, at 11; lisa h. thurau, rethinking how we police youth: incorporating knowledge of adolescence into policing teens, 29 child. legal rts. j. 3, 31 (2009). 72 janet e. ainsworth, re-imagining childhood and reconstructing the legal order: the case for abolishing the juvenile court, 69 n.c. l. rev. 1083, 1095 (1991). 73 id. 74 lisa h. thurau, rethinking how we police youth: incorporating knowledge of adolescence into policing teens, 29 child. legal rts. j. 3, 31 (2009). 75 see nyc civilian complaint review board, ccrb report on youth and police 16 (june 2020), https://www.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/issue_based/ccrb_youthreport.pdf [https://perma.cc/hs9m-usax]. 1308 colum. j. race & l. [vol. 15:1290 stress disorder, physical ailments, as well as harm based on “vicarious contact” for those who witness or hear about the interactions.76 in light of the fundamentally different needs of youth and the foundational role the parens patriae doctrine plays in the existence of the juvenile court system, this doctrine both can and should govern the contours of a juvenile’s relationship with the state’s police powers.77 for example, the doctrine has been discussed around juveniles’ “constitutional rights against unreasonable searches under the fourth amendment, rights to a jury under the sixth and fourteenth amendments, and due process and equal protection rights under the fourteenth amendment.”78 this may come up in the context of judges giving juveniles extra time to understand what rights they are waiving in court, expending greater effort in determining juvenile defendants’ competency to stand trial, or even being the decisionmakers (instead of juries) in juvenile delinquency proceedings.79 the applicability of parens patriae to juvenile police misconduct cases is, therefore, a natural outcome of the doctrine’s relationship to juveniles’ interactions with the justice system. 76 amanda geller, youth–police contact: burdens and inequities in an adverse childhood experience, 2014–2017, am. j. public health (2021) (footnotes omitted). 77 see esther k. hong, a reexamination of the parens patriae power, 88 tenn. l. rev. 277, 288–89 (2020) (“in sum, in the first three eras of juvenile law, the parens patriae power infiltrated every aspect of the juvenile legal system from the creation of the juvenile courts to the interpretation of minors' constitutional rights in juvenile and criminal law.”); juvenile justice system structure & process: organization & administration of delinquency services, ojjdp stat. briefing book (mar. 27, 2018), https://www.ojjdp.gov/ojstatbb/structure_process/qa04205.asp?qadate=2016 [https://perma.cc/vxm7-64wz] (noting that the purpose clauses for the statutes creating juvenile courts in a large number of states—alabama, arkansas, california, delaware, florida, illinois, iowa, louisiana, massachusetts, maine, maryland, michigan, mississippi, missouri, new jersey, nevada, oklahoma, pennsylvania, rhode island, south carolina, south dakota, utah, vermont, virginia, washington, and wyoming—employ language reflecting the parens patriae doctrine). moreover, several other states (connecticut, georgia, indiana, montana, nebraska, new hampshire, new mexico, ohio, oregon, tennessee, texas, and west virginia) use parens patriae language related to care and supervision of children. see, e.g., conn. gen. stat. § 46b-121h (2021); ga. code ann. § 15-11-1 (2021); ind. code § 31-10-2-1 (2021); mont. code ann. § 41-5-102 (west 2021); neb. rev. stat. § 43-246 (2021); neb. rev. stat. § 43-402 (2021); n.h. rev. stat. ann. § 169-b:1 (2021); n.m. stat. ann. § 32a-2-2 (2021); ohio rev. code ann. § 2152.01 (west 2021); or. rev. stat. § 419b.090 (2021); tenn. code ann. § 37-1-101 (2021); tex. fam. code ann. § 51.01 (west 2021); w. va. code § 49-1-105 (2021). 78 see esther k. hong, a reexamination of the parens patriae power, 88 tenn. l. rev. 277, 301 (2020). 79 id. at 301–02. 2025] municipium, absens parens 1309 the use of the parens patriae doctrine in these ways aims to cater to the vulnerable status of juveniles, empowering states to act as guardians of children’s rights and safety. at the municipal level, monell aims to provide a pathway for institutional liability for harms against any victim of constitutional wrongs by the police. yet, despite the existence of these frameworks at multiple levels of governance, police misconduct continues to go unchecked and attempts at securing relief for victims of misconduct are still met with countless barriers. part ii analyzes these flawed frameworks to provide insight as to why these barriers to relief exist and how they impact young victims of police misconduct individually and collectively. ii. current frameworks fail to provide adequate avenues for relief, affording institutions with boundless powers and little to no duties. a. cities and municipalities escape liability under monell’s exceptionally high standard in theory, monell would have fundamentally changed the landscape of § 1983 claims by providing a mechanism for municipality liability that was barred by the monroe decision. in reality, however, the possibility of municipal liability under the monell doctrine proves illusory.80 1. monell’s rejection of respondeat superior is based on a flawed understanding of the sherman amendment ordinarily, private employer–employee relationships adhere to the theory of respondeat superior,81 making an employer liable for an employee’s torts. even in the municipal context, this theory prevails for non-constitutional torts.82 and, though respondeat superior explicitly 80 supra note 6. 81 2 dan b. dobbs, the law of torts 905 (2001); david jacks achtenberg, taking history seriously: municipal liability under 42 u.s.c. § 1983 and the debate over respondeat superior, 73 fordham l. rev. 2183, 2191 (2005) (“remarkably, the standard for awarding compensatory damages against cities under 1983 is even higher than the standard for awarding punitive damages against private employers.”). 82 2 dan b. dobbs, the law of torts 905 & n.1 (2001) (identifying federal civil rights claims as the exception to respondeat superior in both the private and public employment context); achtenberg, supra note 80, at 2191 (“monell confines entity liability in a manner that is unique to 1983 and exists in no other area of the law. . . . the 1310 colum. j. race & l. [vol. 15:1290 does not apply to independent contractors, even finding liability for the one who hires an independent contractor is an easier standard than monell.83 respondeat superior’s creation of employer liability for an employee’s wrongs is based on the idea that “the wrong done by the servant is looked upon in law as the wrong of the master himself.”84 this was the understanding of the employer–employee relationship at the time that § 1983 was enacted.85 in fact, courts have often noted that an employer has the power to control his “servants”—or rather, employees—allowing for liability to naturally flow from employee to employer; some courts additionally identify an employer’s ability to select employees as creating liability.86 other justifications have also been posed, including the breach of a warranty of good conduct expected when an employer selects and employs an individual87 and the reciprocal relationship between benefits the employee provides and liabilities the employee creates for the employer.88 interestingly enough, the pathways to liability under monell seem to mimic some of author has been unable to identify a single state that restricts its cities' liability for employees' non-constitutional torts [the way] monell restricts municipal liability for constitutional wrongs.”). 83 compare restatement (second) of torts § 411 (1965) (“an employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor.”), with board of county com’rs of bryan county, okl. v. brown, 520 u.s. 397, 397 (1997) (requiring that “a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights”). 84 1 william blackstone, commentaries 432 (1765). 85 shields v. illinois dept. of corrections, 746 f.3d 782, 791–92 (2014) (“monell failed to grapple with the fact that respondeat superior liability for employers was a settled feature of american law that was familiar to congress in 1871, when § 1983 was enacted. congress therefore enacted § 1983 against the backdrop of respondeat superior liability and presumably assumed that courts would apply it.”). 86 du pratt v. lick, 38 cal. 691, 692 (1870) (noting that an employer’s “power of selection or direction” over its employees creates liability for the employees wrongs); mcguire v. grant, 25 n.j.l. 356, 371 (1856) (“a master is responsible for the tortious acts of his servant which were done in his service. this responsibility grows out of . . . his control over them. if it is his duty to control them in what they do, he is responsible for his neglect.”). some courts have even focused on the power of an employer to select employees as the foundation of liability. kelly v. mayor of city of n.y., 11 n.y. 432, 436 (1854) (“th[e] right of selection lies at the foundation of the responsibility of a master or principal, for the acts of his servant or agent.”); pack v. city of new york, 4 seld. 222, 225 (1853) (“the party employing has the selection of the party employed, and it is reasonable that he who has made choice of an unskillful or careless person to execute his orders, should be responsible for an injury resulting from the want of skill or want of care of the person employed.”). 87 kelly, supra note 85. 88 cardot v. barney, 63 n.y. 281, 287 (1875) (“[h]e who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain it.” (quoting hall v. smith, 2 bing. 156, 160)). 2025] municipium, absens parens 1311 the language of these justifications for respondeat superior,89 yet the court refused to apply the respondeat superior theory to its development of its framework. it is first worth noting that in its rationale for rejecting respondeat superior, the monell court discussed the idea of a community sharing in losses by holding those with property responsible for the damages of civil rights violations such as kkk attacks.90 respondeat superior holds employers liable for their employees’ wrongs; community-sharing of that liability is only relevant to the extent that taxpayer dollars fund municipalities, the employers in question in monell cases.91 the court concluded that community sharing and loss prevention were evidently not legitimate enough reasons to support the passage of the sherman amendment but wrongly extrapolated this rejection by congress as a complete dismissal of respondeat superior as a basis for municipal liability.92 this was mistaken for two key reasons. first, the discussion of employer liability in monell lacked any true review of an employer’s legal control over its employees, the reciprocal relationship between benefits and liabilities, and any other major rationale for respondeat superior.93 yet, despite this circumstantial analysis of the house’s rejection of the sherman amendment, the monell court settled on a framework that would ultimately reflect the ideals of the very approach it was 89 see infra part i a.2. 90 monell, supra note 30. 91 mead, supra note 21, at 540 (“[t]he cost of constitutional injury caused by municipal employees would be spread among the taxpayers who benefit from the services the municipality provides.”); id. at 539–40 (“this approach consciously allocates the risk of loss to the enterprise creating and benefiting from the activity that creates the potential for injury. the risk of loss should fall on the entrepreneur, who is in the best position to prevent the loss and to spread the cost of the loss through either insurance or higher prices.”). 92 achtenberg, supra note 80, at 2205–06 (“congress may have rejected community-wide loss sharing as a justification for the sherman amendment, but community-wide loss sharing is neither the effect of respondeat superior nor the nineteenth-century justification for it. . . . respondeat superior shifts the costs of employee negligence, not to the community as a whole (as monell suggested).”); see also, monell, 436 u.s., at 694 (“this justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable.”). 93 monell, 436 u.s. at 691–95 (1978). 1312 colum. j. race & l. [vol. 15:1290 rejecting while unnecessarily raising the bar created by respondeat superior. for instance, the third form of monell liability—inadequate training—vaguely resembles the rationale for respondeat superior that invokes breach of warranty arguments; the fourth form of monell liability—improper hiring—sounds quite similar to selection of employees as a basis for employer liability.94 the monell doctrine, however, imposes an additional requirement on plaintiffs to show “deliberate indifference” rather than assuming automatic vicarious liability on the basis of these employment relationships. second, the monell court’s aversion to respondeat superior here was likely motivated by the historical context of the time, resulting in the court engaging in circular arguments that both rejected this theory of liability and indirectly adopted it as well.95 the sherman amendment had nothing to do with § 1983 suits to begin with; instead, as previously discussed, it was about adding a section to the ku klux act to respond to the civil rights violations being carried out by the kkk.96 again, the goal of the amendment was to have the community share the losses from racially motivated mob violence as a potential deterrent to this violence. respondeat superior in this context obviously made no sense: the kkk was not employed by the municipality nor a “legal unit” with it, so the municipality could not be taking on either the benefits of the kkk’s actions or the liabilities that flowed from them.97 accordingly, the 42nd congress voted against 94 supra part ii a.3. 95 achtenberg, supra note 80, at 2202–04 (“rejection of municipal liability for the actions of the klan and similar organizations did not suggest that the members of the forty-second congress rejected the principles underlying respondeat superior; it demonstrated their fidelity to those principles.”). 96 see supra notes 27–32 and accompanying text. 97 achtenberg, supra note 80, at 2204 (“the city and the klan were not a ‘single unity’ and the actions of the klan were not, ‘in the contemplation of the law,’ the actions of the city. the city in which the klan committed its depredations did not control the klan's conduct.”); id. (“the city could neither be seen as having held out klan marauders as trustworthy or as having warranted their good conduct. because the city had not sought to benefit from the klan's actions, there was no reciprocity justification for holding the city liable for the klan's misdeeds.”). 2025] municipium, absens parens 1313 the sherman amendment, not against respondeat superior as a doctrine for municipal liability.98 meanwhile, § 1983 claims against public officials appeal to employer-employee relationships that fall squarely within the definition of respondeat superior and are entirely unrelated from the goals of the sherman amendment. thus, even while attempting to correct the monroe court’s improper analysis of the rejection of the sherman amendment, the monell court engaged in its own flawed interpretation of the congressional decision. respondeat superior remains perfectly in line with the purpose and function of § 1983 claims. 2. monell’s four approaches to liability are an unusually high standard the rejection of respondeat superior for municipal liability is not simply a matter of semantics. despite the language of the pathways for liability under monell mimicking some of the rationale behind respondeat superior, by rejecting the foundational theory, the monell court created an impossibly high standard, rendering the idea of institutional liability for wrongs illusory and subverting the entire purpose of the case’s rejection of monroe.99 section 1983 claims already face a high burden when lodged against individual police officers due to qualified immunity protections for public officials.100 success rates are even lower when a monell claim is made against the institution that employs that public official, leaving plaintiffs with no recourse for the constitutional violations they have suffered.101 liability for a 98 id. at 2204 (“[rejection] of the sherman amendment does not imply that congress rejected . . . respondeat superior. instead, belief in those rationales . . . would logically lead nineteenth-century lawyer-legislators to vote against the sherman amendment and in favor of municipal respondeat superior. each of those rationales supported respondeat superior, but not . . . the sherman amendment.”). 99 mead, supra note 21, at 536 (“by rejecting respondeat superior in favor of the policy or custom requirement, however, the court greatly limited, and in some cases completely eliminated, the availability of section 1983 remedies.”). 100 schwartz, municipal immunity, supra note 6, at 1230 (2023) (“indeed, police officers are entitled to absolute immunity for unconstitutional conduct when they appear as a witness. . . . if a government official is protected by qualified or absolute immunity, the only way for the plaintiff to recover under section 1983 is through a monell claim.”). 101 see supra note 98; see also, katelyn elrod, nancy leong, matthew nilsen, pleading failures in monell litigation, 73 emory l. j. 801, 823 (2024) (“[o]ur research shows that plaintiffs usually lose municipal liability 1314 colum. j. race & l. [vol. 15:1290 municipality is somewhat obvious and clearcut when there is a statutorily-evidenced municipal policy behind the constitutional violations that form the basis of the § 1983 claim. however, when there is no written unconstitutional policy establishing an obvious link to the municipality, plaintiffs rarely succeed to courts’ satisfaction in proving governmental custom, inadequate training, or improper hiring.102 without the deliberate indifference requirement, for example, it could be argued that any time a city or municipality employee acts “within the scope of [his] city-vested authority . . . [he is] implementing a city’s policy.”103 instead, courts dismiss monell claims for lacking evidence of “deliberate indifference” that, arguably, does not even exist. for instance, the code of silence amongst police officers (the very phenomenon that shows deliberate indifference for citizens’ constitutional rights) actively prevents the collection of evidence of any pattern or practice of this behavior.104 the code of silence, an “unspoken but inviolable rule that claims. . . . [i]n many well-pled cases with egregious facts, courts have nonetheless ruled for the defendant.”); schwartz, municipal immunity, supra note 6, at 1230 (2023) (“[i]t is more difficult to prevail on monell claims against local governments than on section 1983 claims brought against individual officers. . . . monell claims were far less likely to go to trial than were section 1983 police misconduct cases as a whole.”). 102 see fred smith, local sovereign immunity, 116 colum. l. rev. 409, 416 (2016) (comparing the high bar for proving municipal causation for monell to de facto sovereign immunity despite a municipality’s lack of sovereign standing such that “the municipal causation requirement and the individual immunities that local officers receive render specific classes of governmental defendants insusceptible to suit. . . . that is what immunity is”); katelyn elrod, nancy leong, matthew nilsen, pleading failures in monell litigation, 73 emory l. j. 801, 823 (2024) (“a significant majority of plaintiffs did not satisfy all the elements of all the monell theories they raised. the result is especially notable given that the standard we used for evaluating element satisfaction was more lenient than the iqbal standard that plaintiffs face on a motion to dismiss.”). see, e.g., connick v. thompson, 563 u.s. 51, 62 (2011) (finding that a pattern of brady violations in a police department was not sufficient to meet the monell standard because the pattern was not of the same or similar types of brady violations); city of canton, ohio v. harris, 489 u.s. 378, 390–91 (1989) (“that a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city. . . . neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training.”); waller v. city & cnt. of denver, 932 f.3d 1277, 1290–91 (10th cir. 2019) (rejecting municipal liability claims after a deputy sheriff threw a defendant into a glass wall without any provocation); perkins v. hastings, 915 f.3d 512, 523 (8th cir. 2019) (rejecting municipal liability claims after a police officer with several prior disciplinary records shot and killed a fifteen-year-old). 103 fred smith, local sovereign immunity, 116 colum. l. rev. 409, 433 (2016). 104 in one case involving a young man choked by a police officer in the bronx, several police officers met in a parking lot to “fabricate[] a cover story,” and an officer that did come forward to report the misconduct received no backup from her colleagues. see barry c. scheck, practising law institute: section 1983 civil rights litigation symposium: criminal prosecution and section 1983, 16 touro l. rev. 895, 909–10 (2000) (discussing united states v. livoti and the code of silence that exists amongst police officers). 2025] municipium, absens parens 1315 obligate[s] officers to refrain from snitching on one another”105 is a very real practice of police departments, and cases like that of the 2014 murder of a black teenager at the hands of chicago pd exemplify the horrific ways this code permeates policing. in late 2014, officer jason van dyke of the chicago pd fired sixteen shots (the maximum capacity of his semiautomatic weapon) at laquan macdonald, a 17-year old black child, in 15 seconds. laquan was hit by at least 15 of these shots, with about 9 entering his back. he was pronounced dead within an hour. according to van dyke, he fired at laquan because he was “fearing for his life” after laquan allegedly refused all commands and “continued to approach the officers while still armed with his knife.”106 this story was reiterated, confirmed, and validated by van dyke’s fellow police officers in their tactical response reports (filled with police jargon that glazed over the facts), by the media, and even a spokesman for the city’s police union,107 justifying van dyke’s behavior as a “permissible use of deadly force.”108 no one could disprove these claims as the “city and police officials kept dashcam and bodycam footage of the killing under lock and key” despite public outrage over laquan’s death.109 only when the footage was finally released a year later at the command of a county judge did the public finally have proof that the police officers’ stories were a complete fabrication, from the accusation of ignored verbal commands to laquan’s alleged knife-wielding lunge towards the police—the 105 adam j. smith, police reform through section 1983, 43 n. ill. u. l. rev. 51, 76 (2022). 106 see id. at 76; chi. police dep't, major incident notification detail, incident no. 73204 at 2 (oct. 20, 2014), https://www.documentcloud.org/documents/2642124-laquan-mcdonald-police-report-part-1.html [https://perma.cc/p9ul-sez5]. 107 jamie kalven, sixteen shots, slate (jan. 14, 2025), https://slate.com/news-and-politics/2015/02/laquanmcdonald-shooting-a-recently-obtained-autopsy-report-on-the-dead-teen-complicates-the-chicago-policedepartments-story.html [https://perma.cc/4jwh-ys78] (“pat camden, a longtime chicago police department press spokesman who now performs that function for the police union, later described mcdonald as having had ‘a strange gaze about him … he’s got a 100-yard stare … he’s staring blankly.’”). 108 adam j. smith, police reform through section 1983, 43 n. ill. u. l. rev. 51, 76 (2022). 109 id. 1316 colum. j. race & l. [vol. 15:1290 lunge that formed van dyke’s justification for deadly force.110 this case exemplified the willingness of police officers, departments, and municipal organizations to band together in protection of one of their own, even when horrific constitutional violations are committed. not only does this code of silence violate a whole host of existing police conduct rules and regulations,111 but when it comes into play after misconduct or violence perpetrated on children, it also violates mandatory reporting laws that require police officers to report any instances of child abuse.112 the more cases of misconduct that go unreported or unsubstantiated, the more difficult it becomes to prove any pattern and meet the evidentiary standards for a monell claim.113 ultimately, the aversion to respondeat superior arguably creates a bias in courts against finding liability for fear of invoking this rejected doctrine.114 requiring a link to policymaker action actually protects the municipality from liability based on actions by the very public-facing employees that have the most direct connection with the public and the greatest likelihood of engaging in constitutional violations in a tangible way.115 110 see id. at 77 (“perhaps most importantly, the critical ‘lunge’ toward van dyke, the legally obligatory precursor to a ‘justified’ use of deadly force, never happened. mcdonald was walking away from van dyke when he was shot. in fact, mcdonald took the majority of van dyke's shots while he was already incapacitated and on the ground.”). 111 see, e.g., new york city police department disciplinary system penalty guidelines 20 (january 15, 2021), https://www.nyc.gov/assets/nypd/downloads/pdf/public_information/disciplinary-system-penalty-guidelineseffective-01-15-2021-compete-.pdf [https://perma.cc/7s5u-wsx5] (“failure to intervene in the use of excessive force, report excessive force, or to request and/or ensure timely medical treatment for an individual is serious misconduct that may result in criminal and civil liability and will result in department discipline, up to and including termination.”). 112 supra note 60. 113 see supra note 101 and accompanying text. 114 see mead, supra note 21, at 563 (“the court's focus on the status of the decisionmaker as the determining factor in deciding whether official policy has been made highlights the difficulty of not accepting respondeat superior . . . in a section 1983 municipal liability case. [the] approach implicitly recognized that municipalities can act only through their employees.”) 115 id. at 564 (“the municipality is deemed responsible for the acts of high level decisionmaking employees but not for the acts of low level, frontline employees. . . . it is the low level employee who has the greatest exposure to the public and, therefore, the greatest potential for committing constitutional violations.”). 2025] municipium, absens parens 1317 3. police officers have unfettered immunity and face no consequences for the most egregious constitutional violations; youth of color bear the cost the high burden that the monell standard creates is particularly evident when it comes to policing, leaving victims of police violence with no viable opportunity to obtain justice. in fact, more often than not, police officers evade liability for outrageous violations as they are protected individually by qualified immunity, and their police departments and cities are protected under monell’s incredibly difficult requirements. these protections are not just flawed for the lack of recourse that they provide individual complainants, but also because this level of immunity fails to deter future violations, results in insufficient disciplinary action (if any, at all), and hinders reform in policing.116 for instance, after a monell claim was, despite all odds, successful against new york117 for the nypd’s racial profiling in stop and frisk policies, the court requested an in-depth report of the nypd disciplinary process. while this note does not delve into the investigative procedures employed by the nypd, it is worth highlighting that when misconduct by officers is discovered, it can be met with formal or informal mechanisms for discipline, and this disciplinary decision is left to the discretion of the police commissioner regardless of the 116 amelia c. waller, note, state standing in police-misconduct cases: expanding the boundaries of parens patriae, 16 ga. l. rev. 865, 885 (1982) (“[i]ndividual actions under section 1983 do not significantly deter police misconduct. . . . it is unlikely that individual suits will obtain injunctive relief on the scale necessary to alleviate a problem of systematic police abuse for the benefit of all citizens who might be affected.”). in new york, even when misconduct is exposed, an officer doesn’t necessarily face disciplinary proceedings by the municipality that employs them, especially if the plaintiff of the misconduct litigation does not also file a complaint with the ccrb or iab or equivalent police department investigative agency. while the civilian complaint was a mandatory precursor for ccrb investigation before, the board can now initiate its own investigations in limited circumstances. however, internal investigations are often avoided because a misconduct finding in one of these investigations could bar the use of the qualified immunity defense in ongoing litigation against the officer. see james yates, report to the court on police misconduct and discipline 38, nypd monitor (september 19, 2024), https://www.nypdmonitor.org/wp-content/uploads/2024/09/discipline-report.pdf [https://perma.cc/qt37-3y8w]. 117 this section examines findings of policing violations and lack of discipline specific to new york, extrapolating the concerns these raise to argue for a national change in the handling of police misconduct claims. 1318 colum. j. race & l. [vol. 15:1290 specific recommendations the investigating agency gives for discipline.118 moreover, the standards for the commissioner’s explanations for deviating from recommended disciplinary action are low, at best.119 thus, in new york, for example, command discipline, a form of informal discipline that was instituted for minor violations by police officers, “has become the predominant form of proceeding, invoked for almost every kind of misbehavior.”120 more often than not, various forms of guidance, warnings, and training are provided in response to misconduct (even the stop and frisk misconduct that motivated the floyd monitor report) rather than any true statutorily-defined discipline (e.g. suspension, termination, etc.) per civil service law § 75 and administrative code § 14–115.121 these findings are confirmed by the ccrb report on youth and police from june 2020. in one of the substantiated claims, an eleven-year-old black child was walking on the new york city housing authority (nycha) complex and stopped to greet an acquaintance when he was stopped and frisked by an officer.122 the officer later claimed that his stop was “based upon his observation of a bulge in the victim’s pocket” even though a bulge cannot be used as a basis for 118 yates, supra note 115, at 169 (“the police commissioner may approve or modify the recommended findings and the penalty, if any.” (citing 38 rcny § 15-08(a))); id. (“the police commissioner may approve or modify the recommended findings and the penalty, if any.” (citing n.y.c. admin. code § 14-115; n.y. city charter § 434)); id. at 170 n. 756 (“after implementation of the matrix, the police commissioner posted 184 departure letters where recommendations by ccrb for discipline were reduced or dismissed. as of apr. 7, 2023, of 184 downward departures, dismissed cases included 1 deputy chief, 1 inspector, 3 deputy inspectors, 2 captains, 17 lieutenants, and 22 sergeants. posted letters at https://www.nyc.gov/site/ccrb/complaints/redacted-departure-letter.page.”). 119 id. at 183 (“ccrb has begun to post departure letters it receives from the police commissioner when the commissioner imposes a lesser penalty or level of discipline than that recommended by ccrb when it substantiates a complaint. as of march 2023, there were 181 departures described in cases decided in 2022. although the letters are required to explain in detail the reasons for the police commissioner’s rejection of ccrb’s recommendation, they are brief and opaque.”). 120 id. at 53. 121 id. at 56. the floyd monitor report also finds that regardless of what discipline is imposed, enforcement raises another issue such that supervisors often fail to ensure the disciplinary activity is engaged in. this failure to monitor is also not met with any disciplinary action. 122 nyc civilian complaint review board, supra note 74, at 27. 2025] municipium, absens parens 1319 reasonable suspicion.123 the ccrb found a violation and recommended disciplinary action,124 but the police commissioner ultimately downgraded the discipline level and just imposed training requirements.125 in fact, in nearly all the cases discussed in this report, the police commissioner downgraded the discipline from the ccrb’s recommendation.126 of special note in the ccrb report is the racial divide of these policing issues. of the 407 police misconduct complaints involving youth that the ccrb examined, sixty-four point eight percent involved males of color (black, hispanic, asian, or indian-american) and sixtythree point nine percent specifically involved black victims, despite the fact that “only 24% of new yorkers self-identif[ied] as black according to the 2017–2019 census estimates.”127 according to the bureau of justice statistics survey, between 1998 and 2008, thirty point one percent of all police uses of force involved youth between the ages of 16 and 18, even though this demographic made up a mere seven point six percent of the population.128 this militarization of police forces was found to be higher for youth of color, particularly “impoverished and african-american, latino, and immigrant youth” who are subject to excessive force at disproportionate rates.129 black youth, in particular, experience excessive force in police interactions at such greater rates than their non-black counterparts such that “black adolescents develop a fear of police at a young age, and understand the potential for unnecessarily excessive 123 id. (“a bulge, such as the officer described, absent any additional factors, does not provide sufficient grounds on which to form reasonable suspicion that an individual is armed.”). 124 id. (“the investigation determined by a preponderance of the evidence that the officer lacked sufficient justification to stop and frisk the victim. the board substantiated the abuse of authority allegation and recommended command discipline b.”). 125 id. 126 id. at 27–35. 127 nyc civilian complaint review board, supra note 74, at 16. 128 lisa h. thurau, rethinking how we police youth: incorporating knowledge of adolescence into policing teens, 29 child. legal rts j. 3, 30 (2009) (adding that the police initiated force in 81% of these instances). 129 id. at 31. 1320 colum. j. race & l. [vol. 15:1290 force during interactions with police officers.”130 a study of youth-police contact found that “in urban communities and communities of color, traumatic experiences with police begin early in life, suggesting that they warrant consideration as an [adverse childhood experiences]” and even necessitate public health intervention to overcome the health disparity that inevitably results between white and non-white communities after such interactions.131 this is a perception that is not lost on youth, who report viewing their own race as a determining factor for police interactions, who they see as sources of harm rather than help.132 the roles of race and other intersectional identities are always relevant to conversations about policing; they become increasingly important upon consideration of the high bars in place for relief. in fact, these racial disparities appear not just at the hands of police but also in court. for instance, the office of juvenile justice and delinquency prevention notes that youth of color are more likely to have criminal or arrest records than their white counterparts.133 the floyd monitor report on nypd discipline and the ccrb report of youth and policing together highlights the racialization of stop-and-frisk policies, indicating that officers tend to stop people of color at higher rates, accusing them of actively engaging in crimes or under the pretense of matching descriptions of suspects of already-committed crimes.134 and, if the complaining plaintiff in a monell claim has a previous police record or was alleged to be engaged in criminal activity 130 devan byrd, challenging excessive force: why police officers disproportionately exercise excessive force towards blacks and why this systemic problem must end, 8 ala. c.r. & c.l. l. rev. 93, 107 (2017); yolander g. hurst et. al., the attitudes of juveniles toward the police: a comparison of black and white youth, policing: int’l j. police strategies & mgmt. 37, 37 (1997) (the police expect trouble from black youth, and in turn young black males expect to be disrespected and harmed by the police.”). 131 geller, supra note 75 (“adverse childhood experiences (aces) are potentially traumatic events that occur in childhood or environmental circumstances that can undermine a child’s sense of safety, stability, and bonding. aces may contribute to toxic stress that can harm development. . . . these, in turn, influence adult health and health risk behaviors and may be transmitted intergenerationally.” (footnotes omitted)). 132 id. at 35. 133 racial and ethnic disparity in juvenile justice processing literature review: a product of the model programs guide, office of juvenile justice and delinquency prevention, https://ojjdp.ojp.gov/modelprograms-guide/literature-reviews/racial-and-ethnic-disparity#1-0 [https://perma.cc/g4eb-bltz]. 134 yates, supra note 115; nyc civilian complaint review board, supra note 74, at 27–35. 2025] municipium, absens parens 1321 during or around the constitutional violation leading to the § 1983 claim (as is often the case when it comes to police misconduct claims), obtaining relief becomes even harder.135 at the risk of over-simplification, true disciplinary action is functionally non-existent for police officers that engage in misconduct, disproportionately harming juveniles and, in particular, young people of color. it is disappointing and concerning that obtaining relief and ensuring accountability in the wake of police misconduct against youth is such an elusive goal when victims of this misconduct are, most often, impoverished and/or youth of color. these victims are thus forced to pursue red herring “solutions” both in and out of court: qualified immunity, police department codes of silence, and monell work together to prevent any individual or institution from taking on the responsibility for misconduct in court, and police departments investigating or addressing misconduct further shield officers from any liability or consequences outside of court. b. parens patriae provides a mechanism for enforcing rights through standing to sue, but fails to enforce duties by creating standing to be sued the failures of monell have long been the subject of extensive discussion, indicating that the mechanisms for holding a municipality liable for its own law enforcement officials’ constitutional violations fail to protect the constitutional rights of its citizens. the doctrine of parens patriae is highly relevant to this discussion, despite its inapplicability to municipalities.136 135 amelia c. waller, note, state standing in police-misconduct cases: expanding the boundaries of parens patriae, 16 ga. l. rev. 865, 873 (1982). 136 see supra part i b.1. 1322 colum. j. race & l. [vol. 15:1290 1. parens patriae’s sovereignty requirement allows municipalities to avoid responsibility for their most vulnerable citizens parens patriae is based on the idea of sovereignty; states have sovereignty, but cities and municipalities do not, so they are unable to invoke this doctrine as a basis for bringing suit.137 however, in instances of special statutory authorization, a city or municipality may be able to invoke the parens patriae doctrine. for instance, the delaware court recognized the city of wilmington’s right to sue as parens patriae on the basis of the powers delegated to it by the home rule act.138 the act designated wilmington as a home rule city, granting it some of the powers of a sovereign, such as the right to create its own laws, subject to certain statutory and constitutional limitations.139 the court found that cities typically could not assert the parens patriae doctrine as the constitution only recognizes the federal and state governments as sovereigns, but, pursuant to this statutory authority, wilmington had standing to sue as parens patriae on behalf of its residents, particularly on behalf of residents who were children.140 137 capital view fire dist. v. county of richland, 377 s.e.2d 122, 124 (1989) (“political subdivisions, such as cities and counties, however, lack the element of sovereignty that is a prerequisite to maintaining a suit under the doctrine of parens patriae.”); board of county com’rs of arapahoe county v. denver bd. of water com’rs, 718 p.2d 235, 241 (1986) (“[c]ounties . . . are political subdivisions of the state with only such powers as the state delegates to them. . . . [w]e hold that countries lack the element of sovereignty that is a necessary prerequisite for parens patriae standing.”); eli savit, states empowering plaintiff cities, 52 u. mich. j. l. reform 581, 605 (2019) (“[t]he ninth circuit held that “political subdivisions”–cities, counties and the like–‘cannot sue as parens patriae.’ similarly, the fifth circuit has held that cities, as mere “creature[s] of the state,” cannot exercise the same parens patriae powers as their parent states. multiple district courts have reached the same conclusion.” (quoting in re multidistrict vehicle air pollution m.d.l. no. 31, 481 f.2d 122, 131 (9th cir. 1973)). 138 22 del. c. § 802 (“every municipal corporation in this state containing a population of at least 1,000 persons . . . may . . . have and assume all powers which, under the constitution of this state, it would be competent for the general assembly to grant by specific enumeration and which are not denied by statute.”); in re delaware public schools litigation, 239 a.3d 451, 521 (2020) (“the general assembly chose to grant municipalities the right to assume sovereignty for themselves by declaring themselves to be ‘home rule cities.’”). home rule statutes give “local governments some control over their own political structure; some authority to adopt new laws and initiate new regulations concerning matters of local concern; and, somewhat more uncertainly, a measure of protection from state displacement when state and local measures come into conflict. see richard briffault, home rule for the twenty-first century, 36 urb. law. 253, 257 (2004). 139 id.; schadt v. latchford, 843 a.2d 689, 691 (del. 2004). 140 in re delaware, 239 a.3d, at 524 (“the city can also sue on behalf of its residents who are children. . . . the doctrine of parens patriae applies with special force when a sovereign asserts claims on behalf of children.”) 2025] municipium, absens parens 1323 in new york state, all cities are designated as home rule cities with similar authority,141 though this is not true for every state. for instance, in california, charter cities have home rule authority while general-law cities are subject to state laws.142 despite the existence of this exception, home rule authority does not automatically confer sovereignty.143 the delaware court was the exception as states are resistant to such statutory authorization of municipalities. even if states were to statutorily authorize municipalities as sovereigns in limited contexts, such as when it comes to policing harms and juveniles, parens patriae as it stands now would fail to live up to its own goals. after all, giving a municipality sovereign authority to sue on behalf of a plaintiff in a police violence case is meaningless when the object of the suit is the municipality itself. 2. parens patriae provides a mechanism for enforcing rights through standing to sue, but fails to enforce duties by creating standing to be sued parens patriae by definition creates both powers and duties for the state, but only the state’s powers under this doctrine are enforced, and no enforcement mechanism exists for the duties that come with it. the doctrine creates a right for the state to join litigation to sue on behalf of its citizens, but holding a state liable (being able to sue the state) in litigation is an entirely different endeavor. 141 municipal home rule (mhr) chapter 36-a, article 2; see also, kathy hochul, governor, & water t. mosley, secretary of state, adopting local laws in new york state, james a. coon local government technical series, department of state: local government (1998) (reprinted 2024). 142 georgetown law library, california resources. 143 briffault, home rule for the twenty-first century, supra note 137 and accompanying text; see also, briffault, home rule for the twenty-first century, supra note 137, at 257 (“[h]ome rule does not raise local governments to the level of sovereign entities within our system. . . . even within state systems, home rule does not change the fact that local governments are creatures of state law. home rule is conferred by the states and can be taken back by the states.”). 1324 colum. j. race & l. [vol. 15:1290 generally, the eleventh amendment gives states sovereign immunity, protecting them from suit.144 in the post-monell era, there has been debate on the question of whether a state is a person under § 1983, particularly as the eleventh amendment, which grants states sovereign status, does not apply in state courts.145 this question was finally answered by the supreme court in 1989, when it held that while § 1983 has been found to create a pathway for holding a municipality liable, a state’s sovereign status prevents states from falling within the purview of § 1983 in the same way. in other words, sovereign immunity protects states from liability in a way that cannot be overcome by a § 1983 suit.146 the court reasoned as much based on statutory interpretation from the language of the statute and the purpose of § 1983 as a remedy. specifically, the court noted that § 1983 created a federal remedy for a deprivation of a civil liberty in response to the civil rights violations occurring in southern states at a time where the states were either unable or unwilling to protect those rights or provide remedies or repercussions for the wrongdoings; however, “it does not provide a federal forum for litigants who seek a remedy against a state for alleged deprivations of civil liberties. the eleventh amendment bars such suits unless the state has waived its immunity.”147 one of the rare exceptions to this is the ex parte young doctrine, under which a state official engaging in a constitutional violation is not immune from suit based on 144 u.s. const. amend. xi (“the judicial power of the united states shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the united states by citizens of another state, or by citizens or subjects of any foreign state.”). 145 see will v. michigan dept. of state police, 491 u.s. 58, 62–64 (1989). 146 id. (“[a] state is not a person within the meaning of § 1983.” (citing quern v. jordan, 440 u.s. 332 (1979))). 147 id., at 66 (“congress, in passing § 1983, had no intention to disturb the states’ eleventh amendment immunity and so to alter the federal-state balance in that respect . . .[a] principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims. . . . not . . . for civil rights claims against states. . . .”); doe v. bonath, 705 f.supp.3d, 704 (2023) (“in order for a citizen to sue a state, the state must either waive its sovereign immunity, unequivocally express consent to the suit in federal court, or congress validly abrogated state immunity through statute.”). 2025] municipium, absens parens 1325 eleventh amendment sovereign immunity, allowing for a § 1983 claim, for example, to be brought against such an official so long as the claim is for prospective, rather than retrospective, damages (i.e. it applies only to ongoing violations of federal constitutional or statutory law).148 again, however, this exception creates a pathway to individual liability for the constitutional violator rather than a mechanism for holding the state liable for the wrongs of the public officials it employs. thus, the state’s parens patriae role as protector of its citizens (particularly children) does not mean that citizens can sue the state for constitutional violations by state officials under parens patriae. moreover, because sovereignty and parens patriae do not apply to municipalities,149 neither the duty nor the powers of the doctrine (if it is statutorily expanded to municipalities as discussed above) facilitate the success of a monell claim for the protection of child victims of policing-based harm. even if parens patriae authority is statutorily mandated for a municipality, this authorization would only come with the standing to sue on behalf of a plaintiff rather than imposing any additional means of liability upon the municipality (i.e. allowing the municipality to be sued under the doctrine).150 part iii discusses the ways in which both the monell framework and the doctrine of parens patriae can be adapted to fit the needs of youth that experience police misconduct. 148 ex parte young, 209 u.s. 123 (1908); see also, verizon maryland, inc. v. public service com’n of maryland, 535 u.s. 635, 648 (2002) (“we also conclude that the doctrine of ex parte young permits verizon’s suit to go forward against the state commissioners in their official capacities.”); lee v. state, 874 n.w.2d 631, 638 (iowa 2016) (“invoking ex parte young permits the maintenance of suits alleging ongoing violations of federal constitutional or statutory law against state officials despite state sovereign immunity so long as they seek prospective relief. . . . [t]he ex parte young doctrine serves as a means or mechanism for overcoming state sovereign immunity.” (internal citations omitted)). 149 police departments are municipal agencies that report to the city, and municipalities are not sovereigns, so they have no parens patriae authority to join litigation. 150 see supra note 57. 1326 colum. j. race & l. [vol. 15:1290 iii. modern-day misconduct warrants a modern-day understanding and expansion of institutional liability frameworks in theory there have been a variety of mechanisms created for the protection of citizens’ rights when it comes to police misconduct, from new york’s ccrb and similar investigative agencies across states to § 1983 claims and the monell framework for liability. even parens patriae has been invoked as a protective function in these cases through recommendations for states to join litigation in police misconduct cases on behalf of citizen plaintiffs.151 however, as demonstrated above, all these solutions send victims of police misconduct on a wild goose chase for remedies that are rarely, if ever, afforded to them. this note suggests there has been a failure to apply existing and available legal doctrines to appropriately protect citizens’ rights, particularly in the context of juveniles, who are in greater need of protection and warrant solutions that are different from, or perhaps even unavailable to, their adult counterparts.152 rather than offer a race-based cause of action, such as a fourteenth amendment violation as seen in floyd v. city of new york,153 this note addresses the flaws in the monell and parens patriae frameworks in order to provide a solution that can be used by young people of color that are subjected to increased harm at the hands of police.154 151 amelia c. waller, state standing in police-misconduct cases: expanding the boundaries of parens patriae, note, 16 ga. l. rev. 865 (1982). 152 madison c. jaros, the double-edged sword of parens patriae: status offenders and the punitive reach of the juvenile justice system, 94 notre dame l. rev. 2189, 2192 (2019) (“because the juvenile system was founded on the fundamental idea that adolescents were a distinct class with distinct needs, it was designed to deal with adolescents in a way that was completely different from the way that the justice system at large dealt with adults.”). 153 959 f.supp.2d 540 (2013) (bringing a monell claim by pointing to a pattern or practice of raciallymotivated stop-and-frisk policies in violation of the fourteenth amendment’s equal protection clause). 154 due to the near impossibility of proving a monell claim as well as the increasing difficulty in bringing an equal protection claim based on disparate impact or statistical disparities, this note seeks to address the issue of the lack of accountability for harm to children at the hands of police with solutions that are not based in race but can be used by young people of color when they experience this harm. rather than work within the monell framework as it exists today to develop a cause of action rooted in the racial disparities in police misconduct, this note illuminates the fundamental flaws in monell as well as parens patriae that contribute to this racial disparity and suggests modifications to these doctrines to alleviate some of these gaps. 2025] municipium, absens parens 1327 a. modernizing monell for minors 1. respondeat superior for minors’ major monell claims the flaws in monell are manyfold, but so, too, are the potential areas of reform. one common solution that has been suggested before is the adoption of a vicarious liability framework (i.e. respondeat superior) under monell.155 recognizing the longstanding aversion to such a theory,156 this note recommends a new iteration of this solution as only one of the possible areas in which police misconduct liability can be improved. specifically, this note recommends, at minimum, a partial adoption of the theory of respondeat superior in a limited context: police misconduct cases involving juveniles. recognizing the particularly heinous and traumatic impact that policing and police misconduct can have on youth, § 1983 claims brought by or on behalf of youth require a more robust solution in the form of institutional liability. as part ii a. suggests, monell’s bar for liability is unreasonably high compared to that which is found in any other employer-employee relationship, which not only makes it hard for plaintiffs to get relief for the wrongs they suffer but also fails to deter future violations. respondeat superior as a basis for municipal liability can rectify this.157 additionally, incorporating respondeat superior into the monell framework would expand availability of § 1983 relief to victims of constitutional wrongs even when they cannot name a municipal employee or policy directly implicated in their very real suffering, effectively lowering some of 155 see, e.g., catherine fisk & erwin chemerinsky, civil rights without remedies vicarious liability under title vii, section 1983, and title ix, 7 wm. & mary bill rts. j. 755, 757 (1999) (suggesting the use of vicarious liability in municipal liability cases and citing cases in which such a theory was used). 156 id. at 758, 759–81 (noting the inconsistent application of the vicarious liability theory for some constitutional violations but not others). 157 mead, supra note 21, at 539 (“moreover, forcing municipalities to be responsible for their employees' unconstitutional conduct encourages care in the hiring, training, and supervision of municipal employees. this care, in turn, should reduce the number of constitutional injuries. . . . [m]unicipal liability for acts of employees focuses attention on the problem of the unfit employee and the potential for widespread institutional abuses.”). 1328 colum. j. race & l. [vol. 15:1290 the burden placed on plaintiffs in monell claims.158 under such a theory, municipalities can no longer bank on willful ignorance and must instead place more emphasis on proper hiring, training, and discipline of their employees to prevent constitutional injury.159 many arguments against this approach hinge on a fear of increased litigation160 (isn’t that the point?) under § 1983 or hurting the pocketbooks of municipalities161 (arguably the most direct way of encouraging police reform?).162 a limited application of this approach in the juvenile context alone can assuage some of these longstanding concerns of over-expansion of monell. additional criticisms of this change to monell are based on indemnification, which, according to some, would not make respondeat superior-based liability wrong, per se, but rather ineffectual. for instance, under current police indemnification practice, while governmental liability is difficult to obtain, individual suits against police officers are not actually paid out by the officers themselves. instead, rare is the officer that loses a lawsuit and pays the settlement, attorney’s fees, or any other costs out of pocket.163 if an institution is paying out these lawsuits against 158 see id. (“the victim of constitutional injury who cannot identify the municipal employee responsible for the injury or satisfy a judgment against the actor may go uncompensated unless he or she can recover from the municipality on a respondeat superior theory.”); see also, leong, supra note 5, at 358 (“second, a plaintiff who seeks redress directly from a municipality may recover regardless of whether an individual employee is held liable for a constitutional violation. . . . municipality liability therefore offers an alternative avenue for achieving § 1983’s goal of providing redress for injured plaintiffs even when no individual officer can be held liable.”). 159 id. (“municipalities are aware when hiring personnel that the nature of certain sensitive governmental jobs puts certain employees in positions having direct and special effect on the valued interests of the citizenry. these functions create or increase the risk that the governmental operatives will infringe civil liberties.”). 160 id. at 540. 161 cong. globe, 42d cong., 1st sess. 244 (1871). 162 lisa d. hawke, municipal liability and respondeat superior: an empirical study and analysis, 38 suffolk u. l. rev. 831, 850 (2005) (“section 1983 was enacted by congress to serve those seeking redress for violations of their constitutional rights committed by municipalities. currently, the approach to municipal liability favors those committing the wrong, instead of those seeking redress for violations of their rights. this seems a contradictory result in a judicial system that aims to promote fairness and equitable solutions.”). 163 human rights watch, shielded from justice: police brutality and accountability in the united states: new york: civil lawsuits (1998) ("officers themselves do not have to pay personally in civil lawsuits; the city almost always indemnifies the officer and pays. in the rare case in which the city has not covered the officer, the pba [patrolmen's benevolent association, a police officers' union] has done so."); lant b. davis, john h. small & david j. wohlberg, suing the police in federal court, 88 yale l. j. 781, 810–12 (1979) (examining a sample of 149 case of § 1983 lawsuits in the district of connecticut between 1970 and 1977 and finding that “individual defendants were almost always indemnified” and suffered no personal financial losses after the lawsuits); theodore eisenberg & 2025] municipium, absens parens 1329 police officers anyways, adopting respondeat superior or facilitating municipal liability might seem like a redundant solution, as “de facto respondeat superior liability” might already exist through indemnification.164 while the issue of police indemnification may make adoption of respondeat superior a less comprehensive solution, it does not render it any less important. in fact, the lack of deterrence for police misconduct that continues despite indemnification is evidence enough that the liability that indemnification creates is not nearly serious enough to encourage municipalities to pursue police discipline and/or reform.165 2. nonenforcement of mandatory reporting and disciplinary policies for policing constitute tolerance of ignorance of state law without adopting the theory of respondeat superior, monell’s governmental policy requirement for municipal liability would prevail. but other adjustments to this framework and its application in courts can facilitate municipal liability. it is evident that a variety of police policies exist that require law enforcement officials to protect the constitutional rights of citizens in general and children in particular, including, but not limited to, mandatory reporting of police misconduct by colleagues,166 mandatory reporting of child abuse,167 and employment consequences as recommended by investigative and disciplinary arms of police forces (i.e. ccrb, iab, police commissioners, and their equivalents). these stewart schwab, the reality of constitutional tort litigation, 72 cornell l. rev. 641, 685 (1987) (reviewing civil rights cases in the central district of california in 1980 and 1981 and finding no evidence of officers that have paid out-of-pocket at the conclusion of a lawsuit). 164 schwartz, police indemnification, supra note 9, at 944–46 (2014) (“[g]iven widespread indemnification, there would arguably be a less urgent need to replace monell's municipal liability framework with respondeat superior liability.”). 165 even with police indemnification, qualified immunity standards make § 1983 claims so difficult to bring against individual officers; vicarious liability through respondeat superior overcomes this barrier to recovery in a way that police indemnification does not. see id. at 946 (“even if an officer violated rights that were not clearly established, and therefore could not be held personally liable due to qualified immunity, the municipality would remain vicariously liable to the plaintiff for its employee's wrongs.”). 166 see supra note 110 and accompanying text. 167 see supra note 65–68. 1330 colum. j. race & l. [vol. 15:1290 kinds of policies, which can be interpreted as efforts by the municipality to prevent or avoid constitutional violations, only preclude monell liability under the first form of municipal liability—implementation of an official written policy of the municipality. however, they directly invoke the other three pathways for municipal liability and even offer the opportunity to add a fifth route to liability under the monell doctrine. this note suggests that the monell doctrine can be reformed to allow plaintiffs to invoke nonenforcement as a fifth category or pathway to liability under which failure to act in accordance with written policy gives rise to a monell claim. at the very least, the patterns reflecting police departments’ failure to adhere to policies governing their behavior falls within the existing pathway of custom-based liability. the code of silence is one well-documented pattern or practice constituting governmental custom, as is the failure to report child abuse under mandatory reporting laws. part ii a. detailed the extent to which police officers’ failure to follow the mandatory reporting requirements under both police conduct stipulations and mandatory reporting laws manifest in the “code of silence”; this is arguably exactly what custom-based monell liability was designed to address. the supreme court noted in adickes that “settled practices of state officials may, by imposing sanctions or withholding benefits, transform private predilections into compulsory rules of behavior no less than legislative pronouncements.”168 in fact, justice frankfurter has posited, it would be a narrow conception of jurisprudence to confine the notion of ‘laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. settled state practice can establish what is state law. . . . deeply embedded traditional ways of carrying out state policy . . . are often tougher and truer law than the dead words of the written text.169 168 adickes v. s. h. kress & co., 398 u.s. 144, 167–68 (1970). 169 nashville, c. & st. l.r. co. v. browning, 310 u.s. 362, 369 (1940). 2025] municipium, absens parens 1331 statements made by the chief of police and mayor of new orleans have also been considered by the supreme court to “articulat[e] a custom having the force of law.”170 this understanding places the actions of the police commissioner of new york (i.e. failure to discipline police officers despite ccrb recommendations),171 for instance, squarely under custom-based liability. generally, the lack of discipline by police departments (as demonstrated by the nypd’s report post-stop and frisk) after misconduct would thus constitute a pattern or practice that invokes monell liability,172 as, despite the existence of various mechanisms of discipline, the police commissioner of new york engages in a repeated practice of reduced disciplinary action (if at all) that circumvents disciplinary requirements and reflects a de facto policy of allowing law enforcement officials to dodge consequences for misconduct. outside of the monell doctrine, however, another promising avenue for institutional liability may exist for minors subject to police violence. b. the municipal parent: a twofold approach to a local analog for parens patriae though well-intentioned, parens patriae as it stands today is a flawed doctrine that fails to live up to its promise of protecting children that are unable to protect themselves. all hope is not lost, however. a modern and updated application of this historic doctrine173 can provide a much-needed remedy for the failures of municipal liability frameworks in cases of police misconduct involving youth. this note first calls for a limited application of the parens patriae doctrine to municipalities and local governments when it comes to children so that these 170 see id. at 168 (citing lombard v. louisiana, 373 u.s. 267 (1963)). 171 see supra notes 121–125 and accompanying text. 172 joanna c. schwartz, monell’s untapped potential, 125 colum. l. rev. (2025) (discussing police departments’ failure to investigate complaints or disregard of evidence uncovered related to the complaints as a basis for monell liability). 173 esther k. hong, a reexamination of the parens patriae power, 88 tenn. l. rev. 277, 333 (2020) (describing parens patriae as “a relic of the past”). 1332 colum. j. race & l. [vol. 15:1290 institutions can, like states, be subject to a duty and obligation to protect their citizens. second, this note suggests that the doctrine of parens patriae should be expanded to warrant enforcement mechanisms for the duties it creates—in other words, authority and standing to sue under the doctrine should also create standing to be sued. as discussed in part ii b.1. of this note, municipalities lack the sovereign status required for parens patriae. however, past research and literature have suggested that “[a]lthough these parens patriae cases concern the standing of states rather than cities, their reasoning seems applicable to local governments.”174 municipalities are just as interested in ensuring the safety of their citizens (or at least they should be). on this basis, municipalities can and should be statutorily authorized as parens patriae.175 statutorily authorizing municipalities and local governments as parens patriae in the limited context of policing of minors would do more than just ensure their ability to join § 1983 litigation; more importantly, it would generate an obligation for municipalities to fulfill the goals of the doctrine and intervene in police misconduct cases in a way that ensures the protection of children under their care. this recommendation is, of course, likely to raise concerns of municipalities’ lack of sovereign status since the parens patriae doctrine requires sovereign interests that the governing body has independent of the interests of the affected citizens. particularly in the case of children, municipalities arguably have the same interests in protecting the constitutional rights and 174 david j. barron, why (and when) cities have a stake in enforcing the constitution, 115 yale l. j. 2218, 2243 (2006); see also, laura l. gavioli, who should pay: obstacles to cities in using affirmative litigation as a source of revenue, 78 tul. l. rev. 941, 959 (2004) (“arguably, a city as a governmental entity has an interest in the health and welfare of its citizens. . . .”). 175 22 del. c. § 802 (“every municipal corporation in this state containing a population of at least 1,000 persons . . . may . . . have and assume all powers which, under the constitution of this state, it would be competent for the general assembly to grant by specific enumeration and which are not denied by statute.”); in re delaware public schools litigation, 239 a.3d 451, 521 (2020) (“the general assembly chose to grant municipalities the right to assume sovereignty for themselves by declaring themselves to be ‘home rule cities.’”). 2025] municipium, absens parens 1333 physical and emotional safety of the children under its care that a state does176—this should be enough to justify invoking the doctrine for municipalities in just this limited instance even if the lack of sovereign status precludes a complete expansion of the doctrine to local governments.177 additionally, the idea of local governments joining suit despite not having sovereign status is not unheard of even without invoking an expansion of parens patriae.178 with authorization as parens patriae, however, municipalities would simply no longer have to prove their standing for participation in litigation every time they seek to partake. this is, of course, only step one. as detailed in this note, parens patriae enforces a state’s rights under the doctrine by providing standing to join litigation as a plaintiff; however it fails to enforce these parens patriae duties through any equally legitimate mechanism.179 to be effective in protecting children from harm at the hands of police at any level, the doctrine of parens patriae must not only extend to municipalities but also be expanded to holding the parens liable for its failure to fulfill its protective duties over its patriae. thus, under the second part of this recommendation, parens patriae must come with the standing to be sued. first, this approach aligns with a past reading of monell itself. specifically, in south macomb disposal authority v. washington, the court argued that identifying an entity as a 176 state interests that have been cited to invoke parens patriae authority in police violence cases include, but are not limited to, “the prevention of police lawlessness under official sanciton, and protection of the citizenry from abusive practices.” see people of the state of new york v. the town of wallkill, 01-civ-0364 (cm) (2001). for the invocation of parens patriae to justify state intervention for the protection of children, see supra note 60. 177 moreover, this criticism would be more accurately lodged against the exception that allows for statutory authorization of parens patriae standing for municipalities; the existence of this exception is not in question, so, for all intents and purposes, it can and should be employed in the policing context. 178 courts have found standing for municipalities to participate in litigation under § 1983 in several cases. see, e.g., santiago collazo v. franqui acosta (1989, dc puerto rico) 721 f.supp 385 (holding that a municipality could bring an action under § 1983 to challenge funds allocation under the housing and community development act of 1974); pennsylvania v. brown, 260 f.supp. 323 (1966 ed pa) (finding that the municipality had a stake in the case’s outcome that justified standing to sue); akron bd. of education v. state bd. of education, 490 f.2d. 1285 (1974) (holding that a board of education had standing to bring a § 1983 suit against a state board of education). 179 see supra part ii b. 1334 colum. j. race & l. [vol. 15:1290 “person” is reciprocal when it comes to standing to sue and standing to be sued.180 in other words, if a municipality is a “person” that can be held liable under § 1983, then it is also a “person” that can participate in § 1983 litigation as a plaintiff. this is arguably applicable to parens patriae—if this doctrine gives a state (and municipalities, if the doctrine is statutorily expanded to local governments, as this note recommends) standing to participate in litigation as a plaintiff, it should simultaneously provide (or enforce) standing to partake as a defendant. moreover, this reading of the term “person” in § 1983 can overcome one barrier that arise with giving an entity sovereign status—eleventh amendment immunity. statutorily authorizing a municipality with sovereign status and parens patriae rights and duties in the narrow context of police harm against juveniles, therefore, should create a new path to liability for the municipality rather than an added layer of immunity from suit. of course, one reason this solution may not have been considered in the past is that it seems to rely on circular logic. a municipality with sovereign authority under parens patriae would have the ability to join suit as a plaintiff, but in a monell claim based on police violence, the municipality would be the intended target of the lawsuit (and the chances of the municipality suing itself for these violations is most likely next to none). however, this note suggests two particular ways that the expansion of sovereignty and parens patriae authority to municipalities can be used to facilitate finding liability in cases of policing-based harm. first, an individual plaintiff can bring a claim against a municipality for police violence and invoke a violation of the parens patriae doctrine (namely, the duty that the doctrine creates) as a cause of action. 180 see south macomb, 790 f.2d. at 502–03 (“the term ‘person’ appears twice in the statute, one relating to proper plaintiffs under the statute, the other relating to the proper defendants. . . . we are of the opinion that in light of monell, it would be a strained analysis to hold, as a matter of statutory construction, that a municipal corporation was a “person” within one clause of section 1983, but not a “person” within another clause of the same statute.”). 2025] municipium, absens parens 1335 alternatively, when states invoke their parens patriae authority to sue a municipality on behalf of a citizen plaintiff, the doctrine can also provide a cause of action for that lawsuit as well. next, if paired with the aforementioned recommendation to expand monell to encompass nonenforcement of policies, this use of the parens patriae duty can provide further justification for municipal liability under monell as a pattern or practice of failing to act in protection of youth in violation of parens patriae duties, as evidenced by failure to report, the code of silence, and failure to discipline, would meet the requirements of a monell claim. and finally, when a municipality is statutorily authorized with parens patriae authority for cases of police misconduct involving minors, this expanded form of the doctrine would facilitate a finding of municipal liability outside of either the monell framework or the theory of respondeat superior based on a failure to fulfill a parens patriae duty to the children in its care. conclusion existing frameworks fail to provide adequate pathways to relief for victims of police misconduct or violence. this note identifies a racial disparity in the prevalence and impact of policing-based harm (excessive force, violence, and general misconduct) on youth of color compared to their white counterparts by exploring the failures of existing legal doctrines to provide meaningful paths to liability. with no institution taking true accountability for police misconduct, compensation for victims is unattainable and police reform and deterrence for this conduct are nonexistent.181 children, particularly those of color, are a uniquely vulnerable population in this landscape, suffering at the hands of police with no adequate recourse. while doctrines like 181 john c. jeffries, jr., the liability rule for constitutional torts, 99 va. l. rev. 207, 269–70 (2013) (“and the culture of law enforcement can, i believe, be affected by the award of money damages in appropriate cases. finally, at the very least, a judgment of civil liability serves an admirable function in recognizing that wrong was done and in providing some measure of compensation to victims and their families.”). 1336 colum. j. race & l. [vol. 15:1290 parens patriae purport to require institutions to protect vulnerable populations like children, they cannot be invoked in this context despite the dire need for them. meanwhile, the applicable monell framework fails to consider the particular needs of children suffering police harm. effectively, parens patriae and the monell framework have become tools that create uninhibited powers for state and local governments but do not create parallel mechanisms for accountability. while multiple legal doctrines are currently failing children when they face police misconduct, these same legal doctrines provide opportunities for reform that would reframe existing mechanisms so that they can be invoked for the protection of juveniles and address the racialized impact of policing on young people of color. columbia journal of race and law vol. 15 may 2025 no. 1 note sabotaging scrutiny: sffa’s racialized distortion of suspect classification clay b. morris1 abstract this note explores how the supreme court’s opinion in students for fair admissions (sffa) has changed the functional effect of strict scrutiny in affirmative action challenges and subsequently warped suspect classification under the fourteenth amendment. it argues that the court’s strict scrutiny analysis in sffa, which ignores the dynamic realities of race in america and gives doctrinal credence to meritocracy in higher education, handicaps non-white litigants’ access to the fourteenth amendment’s equal protection clause while widening the availability of the fourteenth amendment suspect for white litigants. by parsing whiteness’ evolution in race related jurisprudence before and after suspect classification became canonical doctrinally, dissecting the sffa opinion’s approach to narrow tailoring and compelling interests, and presenting the lower courts’ utilization of post-sffa strict scrutiny’s edit in employment cases, the note highlights the court’s strategy in reconstructing strict scrutiny and offers the thirteenth amendment as a solution to the foreclosure of the fourteenth amendment for non-white litigants post-sffa. 1 j.d. candidate 2026, columbia law school. the author would like to thank professor ashraf ahmed for his guidance. the author would also like to thank professor olatunde c. johnson, jack ruiz, and the editors of the columbia journal of race and law. 2025] sabotaging scrutiny 1252 introduction ................................................................................................................................ 1253 i. race as the constitution’s suspicious step-child ........................................................... 1254 a. post-reconstruction race jurisprudence ....................................................................... 1254 b. affirmative-action jurisprudence and suspect classification ....................................... 1261 ii. compellingly tailored to fit some but not all .............................................................. 1266 a. sffa’s revision of strict scrutiny’s prongs ................................................................. 1266 1. prong one compelling interests .............................................................................. 1269 2. prong two narrow tailoring ................................................................................... 1271 a. the opinion’s critique of the racial groups used in the programs .................... 1272 b. race as a negative ................................................................................................. 1273 c. race as a stereotype ............................................................................................... 1275 d. defining an “end” .................................................................................................. 1277 b. scrutiny and classification in lower court cases and admissions results post-sffa …………………………………………………………………………………………1278 iii. using old tricks on an old dog – the thirteenth amendment as a solution .......... 1282 conclusion .................................................................................................................................. 1289 1253 colum. j. race & l. [vol. 15:1251 introduction students for fair admissions, inc. v. president and fellows of harvard college (sffa) is infamous for the obvious: ending affirmative action. yes, its wrapping of the diversity rationale for race-conscious admissions in a bow before discarding of it is monumental in and of itself. but to accomplish this disposal, the opinion took an approach to suspect classification and strict scrutiny that has gone unprobed. in sffa, the roberts court took advantage of american jurisprudence’s sinuous development of race’s legal conceptualization and strict scrutiny’s formulaic nature to distort suspect classification. prong by prong, the opinion widened the gap in access to suspect classification for white and non-white people, offering the former group an extended path to “suspicion” and leaving the latter group with a constricted path to “suspicion.” in effect, the opinion has manufactured a dual system of classification that blocks non-white people’s access to the fourteenth amendment’s equal protection clause in the affirmative action context. sffa’s barricading of equality by way of diluting suspect classification is the apotheosis of fourteenth amendment jurisprudence’s increasing insistence on a one-size-fits-all approach in race-related challenges. truly, it is the supreme court’s myopic demand for parity that has allowed a “whites only” sign to be placed on the door to equal protection. accordingly, the dismembering of compelling interests and narrow tailoring in sffa are technical fractures that create a need for a new approach to class-based protection outside of the fourteenth amendment. this note will analyze these fractures to reveal the court’s strategy, present suspect classification’s bifurcation in practice, and present a solution to sffa’s establishment of a racialized gap in access to the fourteenth amendment. part i organizes the background of race and suspect classification’s legal development generally as well as in the specific context of affirmative action leading up to sffa. this section explains the court’s consistent treatment of whiteness as similar to but still different from all other 2025] sabotaging scrutiny 1254 races and how that incoherence foreshadows the court’s maltreatment of suspect classification. part ii traces the results of this context in the sffa opinion and explains how, at both the compelling interest and narrow tailoring stages of strict scrutiny, chief justice john roberts’s analysis concurrently shrinks and expands suspect classification. in this section, the ramifications of this pulsing are examined in recent lower court decisions acting upon sffa’s newly christened classification dichotomy. part iii presents the thirteenth amendment as the soundest solution to the supreme court’s eviction of non-white people from the fourteenth amendment’s protections. this section considers the difficulty of including all minorities under the umbrella of the thirteenth amendment, as well as how mixed admissions results from recent higher education application cycles demonstrate the practical effect of the new suspicion unleashed by sffa. i. race as the constitution’s suspicious step-child understanding sffa’s demolition of suspect classification requires tracing the evolution of how racial identity came to be suspect in constitutional jurisprudence. subsequently, this requires an examination of how quickly suspect classification became diluted after jurisprudence made it the threshold to the adjudication of equal protection claims. beginning with post reconstruction jurisprudence and plessy v. ferguson’s proclamation of “separate but equal” and ending with higher-education affirmative action jurisprudence’s treatment of suspect classification from regents of the university of california v. bakke to sffa, this section details why suspect classification always stood on uncertain footing even before sffa’s sliced its efficacy. a. post-reconstruction race jurisprudence plessy v. ferguson, decided in 1896, is a necessary companion to sffa. in plessy, homer plessy, a man who was one-eighth black, sued a railroad for violation of the fourteenth amendment’s equal protection clause after being arrested pursuant to a louisiana statute that 1255 colum. j. race & l. [vol. 15:1251 allowed for the segregation of train cars under the premise of “separate but equal.”2 in an opinion by justice henry brown, the supreme court denied plessy’s claim by saying, despite the fourteenth amendment being ratified to “enforce the absolute equality of the two races before the law,” it was not “intended to abolish distinctions based upon color.”3 parsing plessy’s claim, the court notably addressed whiteness as a type of property, writing, “the reputation of belonging to the dominant race, in this instance the white race, is property in the same sense that a right of action or of inheritance is property.”4 this concession is significant (despite plessy being overturned by brown v. board of education) because it indicates that even with the reconstruction amendments preventing race from being siloed to property disputes, whiteness was still considered as distinct from race’s function as a category. the court’s opinion makes it clear that there is no property right, reputational or otherwise, for non-white people, despite there being one for white people.5 necessarily, justice brown’s assertions here indicate that whiteness in the post-reconstruction era was more than a racial label while to be black could be nothing but a racial label. this distinction is particularly peculiar when juxtaposed with justice harlan’s famous dissenting opinion in plessy, which is considered the genesis of colorblind constitutionalism.6 harlan’s edict that “[o]ur constitution is colorblind, and neither knows nor tolerates classes among citizens. in respect of civil rights, all citizens are equal before the law,” has been cited for decades as dispositive of the 2 plessy v. ferguson, 163 u.s. 537, 542 (1896). 3 id. at 544. 4 id. at 549 and see cheryl i. harris, whiteness as property, 106 harv. l. rev. 1707 (june 1993) (explaining that in american law whiteness evolved into a form of protected property and that this evolution creates distortions in affirmative action doctrine due to jurists' failure to recognize whiteness’ position as property instead of identity). 5 “if he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called property. upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.” supra note 2. 6 see frederic rodgers, our constitution is color blind: justice john marshall harlan and the plessy v. ferguson dissent, 43 judges j. 15 (spring 2004), cass r. sunstein, the invention of colorblindness, in the supreme court review, 67-83 (2024). 2025] sabotaging scrutiny 1256 purpose of the fourteenth amendment’s equal protection clause.7 but harlan does not explain what qualifies all citizens for equality before the law and does not delve into what makes race a sensitive consideration other than the fact that it is race. still, however, these words have become imperative to sustaining the concept of suspect classification despite providing no elaboration upon what the “suspicions” in question are.8 this hollow proclamation in the dissent and the certainty of whiteness’ inherent difference in the majority indicate that at the time, the supreme court remained incapable of articulating why or whether race required special protections and that the idea of a “suspect” classification was still yet too precise. footnote four of united states v. carolene products company provides the first inching toward suspect classification in the post-reconstruction era. while the core of carolene products centered around congress’ ability to regulate interstate commerce, footnote four suggested that judicial review of statutes and policies should be structured differently depending upon the context bringing review of the policy to the court.9 with respect to race, footnote four prescribes that “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”10 ironically, this footnote arrives at a conclusion more akin to justice brown’s majority in plessy as it establishes that prejudice on the basis of a minority status is a special condition, mirroring brown’s suggestion that whiteness is a distinct condition beyond the formal category of race. both the footnote and brown’s opinion paint a picture of race automatically including a difference in status 7 this passage is directly cited by chief justice roberts in students for fair admissions. students for fair admissions, inc. v. president & fellows of harvard coll., 600 u.s. 181, 230 (2023) quoting plessy v. ferguson, 163 u.s. 537, 559 (harlan, j., dissenting). 8 see lauren sudeall lucas, functionally suspect: reconceptualizing race as a suspect classification, 20 mich. j. race & l. 255 (spring 2015). 9 united states v. carolene prods. co., 304 u.s. 144, 153 n.4 (1938). 10 id. 1257 colum. j. race & l. [vol. 15:1251 depending upon which race is being spoken of or addressed. and although footnote four also fails to spell out “suspect classification” like harlan’s dissent in plessy, it demonstrates that the court’s understanding of race included dissimilarity between minorities and the unsaid majority.11 this understanding of dissimilarity based on majority-minority position in carolene products’ footnote goes further toward the idea that in crafting suspect classification, the court did not originally think race in and of itself was suspect, but instead that race became suspicious as it applied to certain groups—particularly the discrete and insular.12 fortunately (or unfortunately), the court provided clarification on how to approach the constitutionality of racial categorizations six years later in korematsu v. united states. although upholding the internment of japanese americans during world war ii as non-violative of the fourteenth amendment’s equal protection clause, the case addressed the nature of racial classifications as fundamentally “suspect.” in the majority opinion for the court, justice black wrote, “... all legal restrictions that curtail the civil rights of a single racial group are immediately suspect. that is not to say that all such restrictions are unconstitutional. it is to say that courts must subject them to the most rigid scrutiny.”13 noticeably, black’s unveiling of racial classifications (1980). 11 see john hart ely, policing the process of representation, in democracy and distrust 81, 73-104 “the fact that effective majorities can usually be described as clusters of cooperating minorities won’t be much help when the cluster in question has sufficient power and perceived community of interest to advantage itself at the expense of a minority (or group of minorities) it is inclined to regard as different, and in such situations the fact that a number of agencies must concur, and others retain the right to squawk, isn’t going to help much either.” 12 see john hart ely, facilitating the representation of minorities, in democracy and distrust 152-3, 135-80 (1980). “standard renditions of what we think of as the carolene products approach… do not include this element: ‘discrete and insular minorities’ are simply entitled to ‘heightened judicial solicitude.’ justice stone’s original, however, was richer than this, indicating that ‘prejudice against discrete and insular minorities may be a special condition, which tends to curtail the operation of those political processes ordinarily to be relied upon to protect minorities….’ now ‘prejudice’ is a mushword in its own right…”. 13 korematsu v. united states, 323 u.s. 214, 216 (1944). justice black continued, saying, “pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” 2025] sabotaging scrutiny 1258 does not contain the prerequisites of discretion and insularity outlined in carolene products’ footnote four. his words are a colorblind blanket, honoring harlan’s dissent in plessy. however, given how the court distinguished whiteness from other racial groups in race-related jurisprudence during the same decade, particularly in takao ozawa v. united states and united states v. bhagat singh thind, the ethos of carolene products remains a relevant specter over justice black’s words in korematsu.14 ozawa v. united states and united states v. thind, respectively decided five and four years before korematsu, implied that whiteness was certainly not seen as “discrete and insular” by the court. in ozawa, the court held that a japanese man was not entitled to citizenship because he could not be considered white. justice sutherland’s opinion in ozawa reveals that the court relied on the presumption that race is scientific to decide the case. the opinion goes as far as to say that skin color could not be used to determine whiteness, but instead that “the words ‘white person’ were meant to indicate only a person of what is popularly known as the caucasian race.”15 later in thind, however, the court used exclusivity and assimilation to deny an indian man citizenship, saying, it is a matter of familiar observation and knowledge that the physical group characteristics of the hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. the children of english, french, german, italian, scandinavian, and other european parentage quickly merge into the mass of our population and lose the distinctive hallmarks of their european origin. on the other hand, it cannot be doubted that the children born in this country of hindu parents would retain indefinitely the clear evidence of their ancestry. it is very far from our thought to suggest the slightest question of racial superiority or inferiority. what we suggest is merely racial difference, and it is of such character and extent that the great body (1923). 14 takao ozawa v. united states, 260 u.s. 178 (1922); united states v. bhagat singh thind, 261 u.s. 204 15 ozawa v. united states, 260 u.s. at 197. 1259 colum. j. race & l. [vol. 15:1251 of our people instinctively recognize it and reject the thought of assimilation.16 taken together, ozawa and thind communicate that the court readily moved the goalpost for what was required to access whiteness while maintaining the undercurrent that it is predicated on exclusion. so, although both of these cases showcase the development of whiteness in constitutional jurisprudence in the citizenship context, they cannot be removed from tracing the court’s development of suspect classification jurisprudence. and if whiteness is based on exclusion, then returning to justice black’s proposition that racial classifications are suspect for every racial group in korematsu reasonably invites pause. is whiteness exclusive or is it just another racial group? because if access to other racial groups is not based on this property-like distinction, as first articulated by justice brown in plessy, then justice black’s stamping of racial categorization as “immediately suspect” in korematsu must include recognition of varying levels of suspicion when the categorization occurs. if nothing else, the doctrinal line from plessy to korematsu in the early development of suspect classification demands recognition of the court continuously treating whiteness as oscillating between one foot in the realm of “race” and one foot outside of it. this then sets up suspect classification to be wielded as a one-size-fits-all treatment for racial discrimination despite whiteness and non-whiteness steadily being treated differently as strict scrutiny matured. it would be reckless to discuss the evolution of race’s constitutional suspicion without turning towards brown v. board of education. brown v. board, like harlan’s dissent in plessy, is a talisman in many race discrimination cases.17 the opinion’s insistence that separation amongst 16 united states v. thind, 261 u.s. at 215. 17 see gerardo r. lópez and rebecca burciaga, the troublesome legacy of brown v. board of education, 50 educational administration quarterly 796 (2014); mark tushnet and katya lezin, what really happened in brown v. board of education, 91 colum. l. rev. 1867 (1991); donald e. lively, the desegregation legacy: uncertain achievement and doctrinal distress, 47 howard l. j. 679 (spring 2004). 2025] sabotaging scrutiny 1260 races in education “generates a feeling of inferiority… that may affect… hearts and minds in a way unlikely to ever be undone” has a history of being used in fourteenth amendment challenges to indicate that any modicum of different treatment on the basis of race is a pipeline to internalized subordination.18 known for (as well as criticized for) its unanimity and common sense approach to overruling plessy, the opinion’s focus on the “intangible” harms of racial segregation implies that at this point in time the court understood race relations to be a complex aggregation of race’s concrete and abstract realities.19 in underscoring the intangible factors that accompany racial considerations, the court, again, positions racial distinctions as not merely descriptive but instead largely interactive on a sociocultural level. citing higher education cases where separation was deemed constitutionally impermissible, the court wrote that its decision “cannot turn on merely a comparison of these tangible factors in the negro and white schools involved in each of the cases. we must look instead to the effect of segregation itself on public education.”20 such a dynamic consideration of the impact of segregation, again, reveals that the court was not entirely ignorant to the fact that blackness is positioned socially, civically, and politically differently from whiteness.21 and that the only way to begin to address this difference was by, literally, placing the two ends of america’s racial dichotomy in the same rooms. the inferiority concerns buttressing the court’s opinion in brown are not double ended, (meaning they do not acknowledge any effect of segregation on white students), but instead only point to the effects on black primary school students being denied access to “white” schools. the court even admits this in saying that their decision is applicable to the plaintiffs “and others similarly situated.”22 similarly situated 18 brown v. bd. of ed. of topeka, shawnee cnty., kan., 347 u.s. 483, 494 (1954). 19 id. at 493. 20 id. at 492. 21 teresa j. guess, the social construction of whiteness. racism by intent, racism by consequence, 32 critical soc. 649, 650-51 (2006). 22 id. at 495. 1261 colum. j. race & l. [vol. 15:1251 necessitates that there are some who are dissimilarly situated; and in the context of brown, that was undoubtedly white children specifically, but also white people and whiteness generally. the supreme court’s creeping articulation of race within the constitutional frame post reconstruction is slow with a bit of a staccato. yet, there is uniformity in the way the opinions parsed above showcase that, to the court, whiteness, although admittedly a “race,” was a race unlike others. in judicially combing through how to conceptualize blackness outside of slavery, the citizenship rights of asian ethnicities, and desegregation, the court never arrived at any conclusions about the entitlements inherent to whiteness. the aforementioned conceptualizations were only arrived at by positioning other races as operating differently than whiteness in legal and constitutional contexts. and does that not provoke the question of whether racial categorization being “immediately suspect” and that suspicion being evenly applied is fallacious in its generosity?23 b. affirmative-action jurisprudence and suspect classification by the time the first key affirmative action case, regents of the university of california v. bakke, presented itself, the court took on the fallacy of suspect classification being applicable to all races head-on. the court was unabashed in its declaration that the “rights established by the fourteenth amendment are personal rights.”24 in bakke, the university of california argued that the lower courts should not have applied strict scrutiny when reviewing whether their admissions policy was a racial classification because strict scrutiny should be preserved for the “discrete and 23 see susannah w. pollvogt, beyond suspect classifications, 16 u. pa. j. const. l. 739 (february 2014). “but the absence of an affirmative explanation of why it is presumptively invidious to discriminate on the basis of race has left a void of reasoning on the issue, inhibiting the court’s ability to evaluate other claims to suspect classification status. in failing to affirmatively articulate, as a matter of principle, why race is suspect, the court has left the core understanding of suspect classifications under-theorized.”. 24 regents of the university of california v. bakke, 438 u.s. 265, 288 (1978) (quoting shelley v. kraemer, 334 u.s. 1, 22 (1948)). 2025] sabotaging scrutiny 1262 insular” minorities distinguished in carolene products’ footnote four.25 but the court agreed with allen bakke, a white man who had been denied admission to the university of california davis medical school twice, that discretion and insularity were not a prerequisite for fourteenth amendment protections, writing: the special admissions program is undeniably a classification based on race and ethnic background. to the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status. the guarantees of the fourteenth amendment extend to all persons. its language is explicit: "no state shall . . . deny to any person within its jurisdiction the equal protection of the laws." it is settled beyond question that the "rights created by the first section of the fourteenth amendment are, by its terms, guaranteed to the individual. the rights established are personal rights," shelley v. kraemer, supra at 334 u. s. 22. accord, missouri ex rel. gaines v. canada, supra at 305 u. s. 351; mccabe v. atchison, t. & s.f. r. co., 235 u. s. 151, 235 u. s. 161-162 (1914). the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. if both are not accorded the same protection, then it is not equal.26 the court did not entirely erase the significance of carolene products’ footnote four, but they cabined its emphasis on minority status to only “be relevant in deciding whether or not to add new types of classifications to the list of ‘suspect’ categories or whether a particular classification survives close examination.”27 even admitting that the development of fourteenth amendment jurisprudence “arose in response to the continued exclusion of negroes from the mainstream of american society” by the “‘’majority’ white race,” the court contended that strict scrutiny required 25 id. 26 id. at 290. 27 id. at 291. https://supreme.justia.com/cases/federal/us/334/1/#22 https://supreme.justia.com/cases/federal/us/305/337/#351 https://supreme.justia.com/cases/federal/us/235/151/ https://supreme.justia.com/cases/federal/us/235/151/#161 1263 colum. j. race & l. [vol. 15:1251 uniform application.28 the court viewed any deviation from uniformity as amounting to preferential treatment that “may well serve to exacerbate racial and ethnic antagonisms rather than alleviate them.”29 ultimately, the court held that the university of california davis medical school’s admissions policy was unconstitutional and that race could only be used as a “plus” in evaluations of an application and not as a singularly determinative factor.30 this case then confirmed the interstices of justice black’s generality in korematsu and that the court was comfortable with the tautology that suspect classifications are suspect because they are suspect. despite strict scrutiny being a demanding inquiry that literally requires tailoring—no measurements need be taken for access to its precision. 31 in grutter v. bollinger, the second key affirmative action case following bakke, the court repeats much of its grandstanding from bakke regarding the suspicion of racial classification as uniform across all races, but with a new respect for taking “‘relevant differences’” into account.32 however, the court’s opinion makes it clear that its willingness to digest context could not come before conceding whiteness as a suspect classification, but instead only during the process of 28 further, the court explained that white should not be considered a majority. “as observed above, the white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the state and private individuals. not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only ‘majority’ left would be a new minority of white anglo-saxon protestants. there is no principled basis for deciding which groups would merit ‘heightened judicial solicitude’ and which would not.” id. at 296-7. 29 id. at 298. 30 interestingly, the court said that the policy, even if construed to be “benign,” included “a measure of inequity in forcing innocent-persons in respondent’s position to bear the burden of redressing grievances not of their making.” this seems to indicate that, again, the court was willing to recognize a hierarchy between whiteness and all other racial groups — but was unwilling to incorporate the general truths of that hierarchy as an indication of how the 14th amendment should function. id. 31 “sense can be made of the package only if we recognize that it is a package, and understand the unusual fit and weight requirements not as new demands piled on as a sort of penalty for being suspect, but rather as ways of extending the initial inquiry, of determining whether the initial suspicions aroused by the classification are well founded or rather on fuller exploration can be allayed.” ely supra note 11. 32 grutter v. bollinger, 539 u.s. 306, 327 (2003) (citing adarand constructors, inc. v. peña 515 u. s. 200, 228 (1995)). 2025] sabotaging scrutiny 1264 applying strict scrutiny’s two prongs.33 the court does not dive deeply into whether permitting whiteness access to suspect classification was a necessity because bakke completed that legwork. surprisingly, though, the court provided a lifeline to the majority-minority-shaped elephant in the room by holding racial classifications permissible in admissions for the “benefits that flow from a diverse student body.”34 to achieve diversity in the student body, the court granted the university of michigan law school the opportunity to create a “critical mass” of minority students. 35 again, just as the conceptualization of whiteness as property is inconsistent with suspect classification being intrinsically universal, so is the preservation of diversity and the creation of a “critical mass” in grutter. if all racial classifications are the same, and so much so that the application of constitutional protections for race ought to be standardized, then why has the court consistently recognized that whiteness is not the same as any other race? the functionality of suspect classification does not match its outputs—especially in the affirmative action context. per grutter, suspect classification could be described as insisting on offering one size of a jacket to an auditorium full of people but only considering differences in measurements after being able to see that some jackets are too tight while others are too loose. one-size-must-fit-all is closer to the truth of strict scrutiny in practice. 33 “we apply strict scrutiny to all racial classifications to “smoke out” illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.” id. at 326 (citing richmond v. j. a. croson co., 488 u. s. 469, 493 (1989)). 34 id. at 343. 35 id. at 333. the definition of “critical mass” has been repeatedly parsed in legal scholarship for its vagueness. see adeno addis, the concept of critical mass in legal discourse, 29 cardozo l. rev. 97 (october 2007); jessica rose kalbfeld, critical mass for affirmative action: dispersing the critical cloud, 53 law & soc'y rev. 1266 (december 2019); in sffa, chief justice roberts highlighted that unc and harvard both admitted they did not understand the terms meaning. “but neither harvard nor unc claims to be using the critical mass concept—indeed, the universities admit they do not even know what it means. see 1 app. in no. 21–707, at 402 (“[n]o one has directed anybody to achieve a critical mass, and i’m not even sure we would know what it is.” (testimony of unc administrator)); 3 app. in no. 20–1199, at 1137–1138 (similar testimony from harvard administrator).” students for fair admissions v. president & fellows of harvard coll., 600 u.s. 181, 229 (2023). https://supreme.justia.com/cases/federal/us/488/469/ 1265 colum. j. race & l. [vol. 15:1251 the ill-fitting nature of suspect classification has been largely pored over in and outside of the affirmative action context. much of this analysis is centered on whether it’s logical for the court to readily change how strict scrutiny is applied depending on the context of the constitutional claim. perhaps the most obvious example is the difference between strict scrutiny’s application in the redistricting context as opposed to the affirmative action context.36 in the remedial and diversity affirmative action context, “any use of race… triggers an enhanced form of scrutiny,” whereas in the redistricting context, “only the predominant use of race in redistricting triggers an enhanced form of scrutiny.”37 this difference in application indicates that the meaning of race’s “suspicion” shapeshifts in the court’s analysis intentionally, which has broader implications for the test’s outcomes. professors evan gerstmann and christopher shortell explain how suspicion’s mutating ability can change a plaintiff’s burden based on the type of racial classification challenged, writing: for racial redistricting, the court focuses on the burden on whites as a whole, and looks for evidence of group harm. for remedial affirmative action, the court focuses on the burden of the individual plaintiffs. for whites who see themselves as marginalized by other whites as a result of such factors as a lack of seniority or membership in a minority religion, this is a major difference.38 additionally, suspect classification’s ambiguity is further illuminated by how few groups are included in the category. that barrier has also created difficulty for the expansion of quasi suspect classifications.39 most notably, lgbt+ individuals and the mentally disabled are not among the suspect or quasi-suspect despite sexuality and disability largely having legal and social 36 evan gerstmann & christopher shortell, the many faces of strict scrutiny: how the supreme court changes the rules in race cases, 72 u. pitt. l. rev. 1, 24 (fall 2010). 37 id. at 25. 38 supra note 31. 39 see marcy strauss, reevaluating suspect classifications, 35 seattle u. l. rev. 135 (fall 2011). (highlighting that the court’s emphasis on symmetry requires that they “consider not the particular discriminated classes but rather a group’s general classification” which promotes inconsistency in the vindication of equal protection.) 2025] sabotaging scrutiny 1266 histories similar to the category deemed “race.”40 and in the face of strict scrutiny’s consistent inconsistency, professor maxwell l. stearns has argued that the court has exercised a deep commitment to avoiding dimensionality, which in turn has “created anomalies associated with affirmative action, same-sex marriage, and gender-based classifications… .”41 considering these criticisms of suspect classification in conjunction with the court’s lethargic and hypocritical conceptualization of race underscores that strict scrutiny has always been amorphous and ripe for mutilation. recognizing the dissonance of strict scrutiny being one size-fits-all despite the hierarchical nature of race in the sociopolitical order is critical in order to understand how chief justice roberts’s opinion in sffa removes non-white people from suspect classification while reinforcing whiteness’ access to race’s suspicion. ii. compellingly tailored to fit some but not all a. sffa’s revision of strict scrutiny’s prongs to understand sffa’s distortion of race’s suspicion, it is useful to approach strict scrutiny and suspect classification as having the relationship of a threshold and a filter. as a threshold, suspect classification provides access to the demanding inquiry of strict scrutiny, which then filters out classifications using two prongs. these prongs, (1) whether the classification is justified via a compelling interest and (2) whether the classification is narrowly tailored to achieve that compelling interest, are used to determine the necessity of race’s invocation as part of a policy, 40 see generally peter nicolas, gayffirmative action: the constitutionality of sexual orientation-based affirmative action policies, 92 wash. u. l. rev. 733 (2015) (arguing that lgbt+ individuals should have access to heightened scrutiny in equal protection challenges because being a sexual minority can be easily paralleled to racial minority status and that heterosexuals have access to heightened scrutiny that lgbt+ individuals do not ) and city of cleburne, tex. v. cleburne living ctr., 473 u.s. 432, 441 (1985) (holding that mental retardation does not constitute a quasi-suspect classification despite it being an immutable characteristic because it would invite the aging, disabled, mentally ill, and the infirm to also seek heightened protections under the fourteenth amendment’s equal protection clause.) 41 maxwell l. stearns, obergefell, fisher, and the inversion of tiers, 19 u. pa. j. const. l. 1043,1048 (june 2017). https://1.next.westlaw.com/document/ia09ef9579c9a11d993e6d35cc61aab4a/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_441%2cco_pp_sp_708_3255 https://1.next.westlaw.com/document/ia09ef9579c9a11d993e6d35cc61aab4a/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_441%2cco_pp_sp_708_3255 1267 colum. j. race & l. [vol. 15:1251 procedure, or guideline.42 together, they operate to further the proposition that if an interest “could be fulfilled without use of a racial preference, then no racial preference would be allowed” or if only “mild racial preferences” were needed to achieve the interests, “then nothing more than mild preferences” can be “constitutionally countenanced.”43 both components of strict scrutiny have their origins in first amendment jurisprudence. the demand for a compelling interest specifically comes from the case of sweezy v. new hampshire, where in a concurring opinion justice felix frankfurter remarked that “[f]or a citizen to be made to forego even a part of so basic a liberty as his political autonomy, the subordinating interest of the state must be compelling.”44 and the first use of narrow tailoring is understood to come from the case of police dept. of city of chicago v. moseley, where justice thurgood marshall asserted that “[t]he equal protection clause requires that statutes affecting first amendment interests be narrowly tailored to their legitimate objectives.”45 in bakke, the court’s first affirmative action case, both prongs of the test appear, although “precisely tailored” stands in for “narrowly tailored.”46 similar to the inconsistency in the court’s identification of suspect classifications, the straightforwardness of the phrases “compelling interest” and “narrowly tailored” is not replicated in the court’s heightened scrutiny jurisprudence. although the two prongs cannot be separated from one another, the court is considered to have repeatedly prioritized compelling interests over 42 students for fair admissions, 600 u.s. at 207. 43 ian ayres & sydney foster, don't tell, don't ask: narrow tailoring after grutter and gratz, 85 tex. l. rev. 517,519 (february 2007). 44 sweezy v. state of n.h. by wyman, 354 u.s. 234, 265, 77 s. ct. 1203, 1219, 1 l. ed. 2d 1311 (1957) (frankfurter, j., concurring).; see also stephen a. siegel, the origin of the compelling state interest test and strict scrutiny, 48 am. j. legal hist. 355, 364 (2006) (spotlighting frankfurter’s concurrence in sweezy as the basis of “compelling interest” logic in heightened scrutiny cases). 45 police dep’t of city of chicago v. mosley, 408 u.s. 92, 101 (1972). 46 bakke, 438 u.s. at 299. https://1.next.westlaw.com/document/i0a3df83a9bf011d991d0cc6b54f12d4d/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_265%2cco_pp_sp_708_1219 https://1.next.westlaw.com/document/id4c400e39c1d11d991d0cc6b54f12d4d/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_101%2cco_pp_sp_708_2293 2025] sabotaging scrutiny 1268 narrow tailoring in race-related cases.47 most explanations for the court’s focus on compelling interests conclude that it is the portion of the strict scrutiny test that is most directly relevant to the outcome of a case. if there is no compelling interest in the first place, whether or not a racial classification is narrowly tailored is irrelevant. but if there is an identifiable compelling interest, whether the court conceptualizes it as “very narrow and particularized, or a broadly conceived and necessarily collective, interest” changes how much they can push the stringency of narrow tailoring, with the former conceptualization offering elasticity and the latter being restrictive.48 of course, prior to sffa, diversity was the only recognized (and remaining) compelling interest for race-conscious admissions.49 but post-bakke, the cases grutter and gratz v. bollinger50 became understood to mean that when diversity was recognized as a compelling interest, the narrow tailoring of a race-conscious admissions policy required an “individualization inquiry.” this inquiry required “assessing all of the qualities that an individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education” in addition to their race.51 this is significant because in nonracial contexts, while the court is similarly heavy-handed with compelling interest analysis, it has not predicated its recognition of a particular compelling interest on being narrowly drawn as it has in the affirmative action context. not simultaneously balancing these two prongs in non-racial cases calls into question the utility of inspecting compelling interests as the “court is rarely explicit about the justification for its approval [of the 47 david crump, the narrow tailoring issue in the affirmative action cases: reconsidering the supreme court's approval in gratz and grutter of race-based decision-making by individualized discretion, 56 fla. l. rev. 483, 485 (july 2004). 48 r. george wright, the scope of compelling government interests, 98 notre dame l. rev.146,155 (2023). 49 see daniel kees, defanging diversity: sffa v. harvard and its implications for the diversity rationale in higher education admissions, 14 colum. j. race & l. 1023 (2024) (examining the court’s ending of the diversity rationale as a compelling interest for race-conscious admissions policies and how the end of the rationale is likely to affect america and higher education’s understanding of race as identity). 50 539 u.s. 244 (2003). 51 gratz v. bollinger, 539 u.s. 244, 271, (2003). https://1.next.westlaw.com/document/i64f913269c9711d9bc61beebb95be672/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_271%2cco_pp_sp_708_2428 1269 colum. j. race & l. [vol. 15:1251 state’s interest], typically treating the state interest’s weight as purely axiomatic.”52 regardless, this probing is indicative of the threshold and filter relationship of classifications and strict scrutiny in affirmative action cases functioning in a very particular manner prior to sffa. and it is this particularity combined with chief justice roberts’s articulations that allowed for sffa to provide whiteness an increase in suspicion, prong by prong of strict scrutiny. 1. prong one compelling interests to begin, chief justice roberts centered his approach to compelling interests in sffa by labeling the benefits of race-conscious admissions posited by harvard and unc as “standardless.”53 specifically, the opinion says that “preparing engaged and productive citizens and leaders” and “preparing graduates to ‘adapt to an increasingly pluralistic society’” are commendable goals, yet not “sufficiently coherent for purposes of strict scrutiny.”54 what is especially warping about the hand waving here is that it does not consider the consequences of harvard and unc not being able to achieve these goals even if they are lofty. instead, he insists that it is less hypothetical and more tangible for the judiciary to “discern whether a prisoner will be injured” or “whether an employee should receive back pay” than whether diversity will increase the quality of a university’s student body.55 this jolts suspect classification via strict scrutiny’s first prong because roberts unevenly slants judicial manageability as a condition of compelling interests specifically in racial contexts.56 taken literally, roberts’s poking of unc and harvard’s compelling interests signals 52 let the end be legitimate: questioning the value of heightened scrutiny's compelling and important interest inquiries, 129 harv. l. rev. 1406 (march 2016). see stephen e. gottlieb, compelling governmental interests: an essential but unanalyzed term in constitutional adjudication, 68 b.u. l. rev. 917, 923 (1988) (citing carolene products as the origin of heightened scrutiny). 53 students for fair admissions, 600 u.s. at 215. 54 id. at 214. 55 id. at 215. 56 this is precisely the characterization this portion of the opinion has taken. see fellowship of christian athletes v. d.c., no. 24-cv-1332 (dlf), 2024 wl 3400104, at *8 (d.d.c. july 11, 2024) (holding that the district 2025] sabotaging scrutiny 1270 that a lack of diversity, and the preservation of whiteness through the homogeneity accompanying that lack, does not raise the same judicial manageability alarm. thus, when a non-white applicant makes a claim that they’ve been denied admission under the fourteenth amendment—they won’t have the access to the immediate “coherence” that whiteness as a compelling interest does.57 because the court has decided it is impracticable to measure the benefits brought by diversity, it is better to maintain the assumed lack of informed leaders, unproductive citizens, and disengaged students because the status quo does not require the judiciary to engage in any quantification. however, when a white applicant makes a claim that they have been denied admission because of an institution’s commitment to diversity, there is immediately more elasticity to the compelling interests portion of their fight against an alleged classification. with such a stark disparity of access to compelling interests, then, the opinion insulates whiteness's recognition as suspect via strict scrutiny’s first prong and insists that any interest that dilutes whiteness is unpersuasive. compelling interests are supposed to help the court determine whether use of a racial classification is necessary for a satisfactory outcome. consider korematsu, often cited by the court to explain its invocation of strict scrutiny (including in sffa), where the court held that the internment of japanese americans was necessary to satisfy the compelling interest of national security.58 though the opinion is perennially jarring, korematsu’s second paragraph is seminal for absorbing the fickleness of compelling interests in sffa: it should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. that is not to say that all such restrictions are unconstitutional. it is to say that courts must subject them to the most of columbia’s interest in “maintaining an ‘equitable environment free of discrimination’” was as standardless as harvard and unc’s goals in sffa). 57 chief justice roberts wrote that harvard and unc’s goals were “commendable” yet not “sufficiently coherent for purposes of strict scrutiny.” 58 “there was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. we cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified.” korematsu, 323 u.s. 214, 224 (1944). https://1.next.westlaw.com/document/id4c846ac9c1d11d991d0cc6b54f12d4d/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_216%2cco_pp_sp_708_194 1271 colum. j. race & l. [vol. 15:1251 rigid scrutiny. pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.59 objectively, the pressing public necessity protected by exclusion orders no. 34 and 9066 had a racially antagonistic effect.60 but in framing pressing public necessity and racial antagonism as mutually exclusive, the court did not engage with the fact that public necessity was only effectively compelling in korematsu because it was done at the expense of non-white people. of course, it must be conceded that korematsu was overruled by trump v. hawaii (which roberts addresses in a footnote to further his argument in sffa). but that makes the visibility of its throughline in sffa’s compelling interest analysis even worse. the case ought to be out of sight and out of mind. as the korematsu court could not admit that it was deprioritizing the physical well-being of japanese americans because of the “military urgency of the situation,” in sffa roberts does not admit that he is prioritizing racial homogeneity in higher education because the fruits of diversity are allegedly unquantifiable. because this materially invalidates higher education diversity at the compelling interest stage, it leaves non-white applicants with no access to their race within the first prong while overly accommodating white applicants within the same prong. it is the silence of the sffa opinion on how diversity could be made quantifiable in order to be compelling that cauterizes this imbalance. roberts details everything that diversity cannot be, but never what it could be. 2. prong two narrow tailoring the sffa opinion attacks the tailoring of harvard and unc’s admission policies from the limitations introduced in grutter: (1) that race can never be a negative in admissions, (2) race can 59 id. at 216. 60 donna k. ngata, jacqueline h.j. kim, kaidi wu, the japanese american wartime incarceration: examining the scope of racial trauma, 74 american psychologist, 36 (2019) (analyzing how the internment of japanese americans has had a racially traumatizing effect on japanese americans across generations and social contexts). 2025] sabotaging scrutiny 1272 never have a stereotyping effect in admissions, and (3) the use of race in admissions policies must come to an end.61 this analysis is in part iv, sections a-c of the opinion. collectively, these portions of the opinion promote a supersized suspicion for whiteness by assuming that meritocracy is race-neutral and that racial imbalance in higher education is unalarming because it is natural. because these fallacies reserve just a sliver of prong two, they require non-white applicants to seek tailoring arguments that are only effective for groups that can pick and choose when their race is significant. a. the opinion’s critique of the racial groups used in the programs to roberts, the racial categories in harvard and unc’s plans were too “plainly overbroad” and “underinclusive” to effectively tackle underrepresentation in admissions.62 in substantiating this point, roberts says that the racial categories cannot be adequately disaggregated: “...respondents would apparently prefer a class with 15% of students from mexico over a class with 10% of students from several latin american countries, simply because the former contains more hispanic students than the latter.” however, nowhere in this section does roberts address whether whiteness can or needs to be disaggregated into sub-categories such as ethnicity or geographical origin. the opinion’s lack of examples of racial categories that are not opaque is, of course, connected to its exaltation of the colorblind constitutionalism thesis.63 but that is not fair or workable at the narrow tailoring stage for all racial groups. it ignores the reality that certain types of admissions considerations, although facially race-neutral, rely upon the same sort of aggregate and unparticularized racial categorization. for example, consider legacy admissions 61 students for fair admissions, 600 u.s. 181, 212 (2023). 62 id. 63 id. at 217. https://1.next.westlaw.com/document/i5203214d167311ee9093e6f084407295/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_212%2cco_pp_sp_708_2165 1273 colum. j. race & l. [vol. 15:1251 policies and athletic-based admissions.64 if a non-white student brought a challenge to legacy admissions or athletic-based admissions, this portion of the sffa opinion would hamper their ability to argue that the racial statistics of the policies indicate they are not narrowly tailored. b. race as a negative in grutter, the court never actually said that race could not be used as a negative despite roberts’s words in sffa.65 instead, the opinion reads: “narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group.”66 while roberts’s supplanting “unduly harm” with the proposition that “race may never be used as a ‘negative’” provokes a semantic inquiry, what is the most damaging about it is its misunderstanding of how benefits and disadvantages work in a racial context. again, following the opinion’s logic requires disregarding the inverse of roberts’s words and taking no issue with the opinion’s inability to acknowledge that whiteness is “a benefit provided to some applicants but not to others” that “necessarily advantages” a specific group of applicants.67 here, roberts creates a gridlock under prong two because he is tying a lack of tailoring to the overt racialization of non whiteness and tying an assumed lack of racialization to whiteness. per the opinion, any key differences between a white applicant and a non-white applicant cannot be traced back to race on the white applicant’s part—only on the non-white applicant’s part. accepting this logic, if a black applicant argued they were not admitted as the result of an admissions policy preferencing white 64 kees, supra note 44, at 1030. see also t. liam murphy, scrutinizing legacy admissions: applying tiers of scrutiny to legacy preference policies in university admissions, 22 u. pa. j. const. l. 315 (november 2019) (arguing that the preference given to legacy applicants has such a disproportionate effect that courts should apply one of the three standards of heightened scrutiny to legacy-based admissions policies). 65 the second risk is that race would be used not as a plus, but as a negative—to discriminate against those racial groups that were not the beneficiaries of the race-based preference. a university's use of race, accordingly, could not occur in a manner that “unduly harm[ed] nonminority applicants.” students for fair admissions, 600 u.s. 181, 212 (2023) quoting grutter 539 u.s. 306, 341 (2003). 66 grutter v. bollinger, 539 u.s. 306, 341 (2003). 67 students for fair admissions, 600 u.s. at 219. https://1.next.westlaw.com/document/i1d11f0969c9711d993e6d35cc61aab4a/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_341%2cco_pp_sp_708_2345 2025] sabotaging scrutiny 1274 applicants, they would be required to trace the “plus” someone white received to race in their narrow tailoring analysis. but roberts forecloses that avenue because he disconnects whiteness from racialization and buttresses the point with a meritocracy argument. therefore, it would be incredibly difficult for a black applicant to trace white admittees’ “pluses” back to race. this in turn disintegrates non-white people’s access to an effective prong two argument. roberts’s trumpeting that “college admissions are zero-sum” is the launchpad for sffa’s shadowy incorporation of meritocracy in part iv of the opinion. something earned being taken away by race-conscious affirmative action is the core of roberts’s analysis. he says that without non-whiteness being given a “plus,” “members of some racial groups would be admitted in greater numbers” than if race was dismissed from admissions criteria.68 this promotes the protection of whiteness as a suspicious category while demoting non-whiteness because it puts forth the logic that the achievement and credentials required for admission to higher education have absolutely no connection to one’s race and the idea that considering said credentials in a race-cognizant manner is incoherent or, at minimum, undesirable.69 meritocracy’s hall of mirrors being a restriction on affirmative action is not a new argument, but sffa wields its sword in a manner that makes it non-negotiable. race is a negative, per the opinion, because meritocracy is the zone that college admissions live in. meritocracy is not an abstraction or an option; it is the way. just slight further probing reveals that meritocracy is a theory reliant upon whiteness not being an identity 68 id. 69 roberts boils down this very complicated matrix to the idea that any invocation of race is automatically determinative in admissions: “respondents also suggest that race is not a negative factor because it does not impact many admissions decisions. see id., at 49; brief for university respondents in no. 21–707, at 2. yet, at the same time, respondents also maintain that the demographics of their admitted classes would meaningfully change if race-based admissions were abandoned. and they acknowledge that race is determinative for at least some—if not many—of the students they admit. see, e.g., tr. of oral arg. in no. 20–1199, at 67; 567 f.supp.3d at 633.” id. 1275 colum. j. race & l. [vol. 15:1251 and having no bearing upon social, economic, and political outcomes.70 so, in making narrow tailoring incompatible with the fixed advantages of race for some groups and not others, sffa asks non-white applicants to make a merit-based argument that is dead before arrival; while inviting white applicants to waive an indestructible merit flag. c. race as a stereotype remarkably, roberts includes the following in his discussion of race as a stereotype: the entire point of the equal protection clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.71 statistically, there is a continued racial divide within suburbs (and more minorities living in cities than suburbs).72 additionally, there are disparities in the number of minority students that have access to music programs at all levels of pre-college education.73 of course, this does not mean that every minority applicant is from a metropolitan area or that there are no non-white children excelling in primary education music programs, but instead that roberts’s conception of 70 see ronald l. jackson, the violence of white entitlement and the hypocrisy of earned merit, 8 departures in critical qualitative research, 64-68 (2019); diana moreira, santiago pérez, who benefits from meritocracy, (nat’l. bureau of econ. rsch., working paper no. 30113, 2022); see also gregory m. walton, steven j. spencer, sam erman, affirmative meritocracy, 7 social issues and policy review, 1-35 (2013) (explaining that if meritocracy does exist it can only be achieved through racial diversity and not via an assumption that academic performance and workplace performance as a precursor to achievement are not informed by external factors as well as stereotypes).; carlos e. santos, erin b. godfrey, esther burson, for better or worse? system-justifying beliefs in sixth-grade predict trajectories of self-esteem and behavior across early adolescence, 90 child development, 180-95 (2019) (finding that the myth of meritocracy and bootstrapping in america negatively effects minority children at an early age, potentially widening achievement gaps between said children and white children). 71 students for fair admissions, inc. 600 u.s. 181, 220 (2023). 72 see ann owens & peter rich, little boxes all the same? racial-ethnic segregation and educational inequality across the urban-suburban divide, 9 the russel sage foundation journal of the social sciences, 26 (february 2023); see also tracy hadden loh, christopher coes, & becca buthe, separate and unequal: persistent residential segregation is sustaining racial and economic injustice in the u.s., the brookings institution (dec. 16, 2020) https://www.brookings.edu/articles/trend-1-separate-and-unequal-neighborhoods-are-sustaining-racial and-economic-injustice-in-the-us/. 73 b.r. morrison, p. mccormick, l.j. sheperd, & p. cirillo, national arts education status report 2019, (last visited jan. 7, 2024), https://artseddata.org/national_report_2019/. black children have a 6.9% rate of no access to music education, and hispanic children have a 4.3% of no access to music education compared to white children who have a 3.1% no access rate to music education. https://www.brookings.edu/articles/trend-1-separate-and-unequal-neighborhoods-are-sustaining-racialhttps://artseddata.org/national_report_2019/ 2025] sabotaging scrutiny 1276 stereotypes does not bother with probability or concurring variables. the opinion’s recoiling at the idea that there is “an inherent benefit in race qua race” rests upon the idea that the differences between minorities and non-minorities are inherently antagonistic.74 injecting this narrative into the narrow tailoring prong widens suspicion for white applicants because it brings in the fragility of assumption as a reason to turn race into a “don’t ask, don’t tell.” the opinion does not hide its hand here because roberts writes that “when a university admits a student ‘on the basis of race’” it does so based on the belief that minorities “are at the very least alike in the sense of being different from nonminority students.”75 this analysis is actually not that different from the opinion’s approach to race as a negative, as both rely on believing that any active acknowledgment of non-whiteness is an immediate demerit for white applicants. however, the opinion’s usage of the anti-stereotyping theory does not create the same traceability issue for non-white applicants that the opinion’s swatting of race as a plus does. instead, the opinion’s anti-stereotyping preempts arguments for consideration of race by suggesting that race in and of itself is a stereotype. to prevent stereotyping, the opinion suggests that an act of stereotyping must be presumed in admissions considerations when race rears its head. the effect of this tautology on suspect classification is that it allows for the positive stereotypes of whiteness to maintain their beneficial effect, while the genuinely negative, positive, and in between assumptions connected to non-whiteness are thrown out with the bathwater to avoid contamination. so, that it is a “pernicious stereotype that a ‘black student can usually bring something that a white person cannot offer’” cannot be readily and equally inverted. again, this returns to the idea that whiteness is only adjacent to other racial/ethnic identities (as evidenced by the fourteenth amendment’s legal history) and the opinion’s underlying assumption that 74 students for fair admissions, 600 u.s. at 220. 75 id. at 221. 1277 colum. j. race & l. [vol. 15:1251 whiteness is not as identifying as, say, blackness. therefore, in order to provide equal access to the fourteenth amendment, the opinion damns race’s ability to communicate any habits, qualities, or perspectives about someone that is non-white because whiteness, per the opinion, does not have those same communicative abilities. to protect those who “cannot” communicate via race, the opinion insists that those whose race is involuntarily communicative must find a way to silence their identities. d. defining an “end” justice sandra day o’connor’s arbitrary 25-year limit on the diversity rationale in grutter was destined to be used as a vehicle for eroding affirmative action.76 but in addition to being diversity’s death knell, the temporal element being articulated as a narrow tailoring consideration provides an “unreasonableness” argument that puts another feather in whiteness’s suspect classification. sffa clings quite tightly to the singular sentence in grutter that includes the 25 year limit, saying it “made clear that race-based admissions programs had to end—despite whatever periodic review universities conducted.”77 in turn this creates a rigid temporal element that is rigid qua rigidity—not because it is actually useful in excavating any unconstitutionality created by diversity. for white applicants, this allows them to simply point to duration as an affront to their access to equal protection. whereas for non-white applicants, it requires justifying continued remedial action alongside the opinion’s belief in deus ex machina racial reconciliation. the latter is more or less impossible, whereas the former is easily identifiable and arguable. this is not the first time the roberts court has engaged in this duration-based avoidance of race-related 76 “constitutional principles typically do not expire with time; their shelf life is timeless.” wendy parker, the story of grutter v. bollinger: affirmative action wins, in education law stories 102, 83-110 (michael a. olivas, ronna greff schneider ed., 2008). 77 students for fair admissions, 600 u.s. 181 at 225. 2025] sabotaging scrutiny 1278 remedial action, as the majority opinion in shelby county v. holder illustrates.78 in shelby, the court said an incredibly colored history of racist voter discrimination was not enough to justify renewing the voting rights act of 1965’s clearance formula.79 but there the court explicitly relied on the distinction between “past” and “current” anti-discrimination needs to dismiss continued race-related remedial action. in sffa, there is no clarifying distinction, only a demand that universities commit to ending the consideration of race in admissions practices. therefore, even if racial discrimination reaches or surpasses its robustness from “nearly 50 years ago,” the barriers to higher education caused by that discrimination are a non-starter for non-white people looking to vindicate their 14th amendment protections.80 this provides the final instance of the opinion’s bloating of strict scrutiny with a sterilized presumption that there are not historical and contemporary differences in the material realities between white and non-white people. and it is this bloating that furnishes whiteness’s suspect classification with more teeth in the affirmative action context than for any other racial or ethnic group. b. scrutiny and classification in lower court cases and admissions results post-sffa turning to the lower courts showcases sffa’s bifurcation of suspect classification in action and how district courts have already taken advantage of the supreme court’s gnarling of strict scrutiny. the most recent and relevant case law is not precisely situated within the affirmative 78 “the government has a fallback argument—because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the states identified in 1965. but this does not look to “current political conditions,” northwest austin, supra, at 203, 129 s.ct. 2504, instead relying on a comparison between the states in 1965. but history did not end in 1965. in assessing the “current need” for a preclearance system treating states differently from one another today, history since 1965 cannot be ignored.” shelby cnty., ala. v. holder, 570 u.s. 529, 532 (2013). 79 “but a more fundamental problem remains: congress did not use that record to fashion a coverage formula grounded in current conditions. it instead re-enacted a formula based on 40–year–old facts having no logical relation to the present day.” id. 80 supra note 72. https://1.next.westlaw.com/link/document/fulltext?findtype=y&sernum=2019171977&pubnum=708&originatingdoc=i7eb2bb3add9e11e28503bda794601919&reftype=rp&originationcontext=document&transitiontype=documentitem&ppcid=496241f17a954179adb354f289e75ca2&contextdata=(sc.default) https://1.next.westlaw.com/link/document/fulltext?findtype=y&sernum=2019171977&pubnum=708&originatingdoc=i7eb2bb3add9e11e28503bda794601919&reftype=rp&originationcontext=document&transitiontype=documentitem&ppcid=496241f17a954179adb354f289e75ca2&contextdata=(sc.default) https://1.next.westlaw.com/document/i7eb2bb3add9e11e28503bda794601919/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_532%2cco_pp_sp_708_2617 https://1.next.westlaw.com/document/i7eb2bb3add9e11e28503bda794601919/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_532%2cco_pp_sp_708_2617 1279 colum. j. race & l. [vol. 15:1251 action/higher education context. however, this only indicates that the opinion’s misunderstanding of suspect classification is bound to have far-reaching effects, such as in the sphere of employment. ultima servs. corp. v. u.s. dep’t of agric., decided just one month after sffa, involved fifth amendment and 1981 claims brought by a white woman against the small business administration (sba) and united states department of agriculture (usda) for their use of a rebuttable presumption of social and economic disadvantage in awarding federal service contracts.81 in applying strict scrutiny, the eastern district of tennessee readily adapted the court’s logic in sffa. regarding whether the sba and usda provided compelling interests for the rebuttable presumption, the opinion denied remedying past racial discrimination compelling status, saying that goal was not judicially manageable.82 however, the defendants in ultima servs. provided expert evidence that there were disparities in the awarding of federal contracts. defendants produced reports from mr. daniel chow, a senior economist at the united states department of commerce, and dr. jon wainwright, a consulting economist [id., pgs. 4-9]. mr. chow found that “woman-owned, minority-owned, and other veteran owned firms have lower odds than other firms to win a contract, all else being equal.” [id., pg. 6]. his study showed that participation in the 8(a) program coincided with a higher likelihood of winning a federal contract and produced a higher odds ratio for successfully winning a government contract [id., pgs. 6-7]. according to mr. chow, the odds of winning contracts for minority owned businesses not participating in the 8(a) program were 37% lower compared to the odds of winning contracts by firms that were not identified as minority owned [id., pg. 6]. mr. chow's report further stated that minority owned businesses’ odds of winning contracts across 90% of industries examined were lower than other non-minority owned firms. 83 81 ultima servs. corp. v. u.s. dep't of agric., 683 f. supp. 3d 745 (e.d. tenn. 2023). 82 “without stated goals for the 8(a) program or an understanding of whether certain minorities are underrepresented in a particular industry, defendants cannot measure the utility of the rebuttable presumption in remedying the effects of past racial discrimination. in such circumstances, defendants use of the rebuttable presumption ‘cannot be subjected to meaningful judicial review.’” id. at 765 (quoting students for fair admissions, 600 u.s. at 214). 83 id. at 754. 2025] sabotaging scrutiny 1280 the statistical credibility of this evidence in the face of the court saying remedying past discrimination in consulting contracts is standardless is uncomfortable. of course, the supreme court brushed off similar evidence in city of richmond v. j.a. croson when it struck down a similar rebuttable presumption.84 but in croson, the judicial manageability critique was missing. ultima denotes that the layering of croson’s specificity requirement with sffa’s judicial manageability requirement means that only a sliver-sized narrative of discrimination can overcome the compelling interest hurdle in a post-sffa anti-classification challenge to affirmative action brought by a white plaintiff. on september 23, 2024, three months after the court handed down sffa, the eastern district of kentucky preliminarily enjoined the department of transportation’s disadvantaged business enterprise program (dbe) in mid-american milling co., llc v. united states dept’ of transportation.85 mid-american milling provides proof of concept for sffa’s narrow tailoring analysis’s negative effect on suspect classification for non-white people. similar to ultima, mid am milling involved a challenge to a rebuttable presumption as a qualification for the dbe. the opinion decided that the dbe’s presumption was not tailored enough because it carved out “preferences for only some minority groups” despite assessing “past discrimination against minority-owned businesses broadly.”86 the opinion relies on an example similar to justice roberts’s example of an admitted class with a higher percentage of mexican students than students from latin american countries, saying that because a pakistani business owner would receive the dbe’s rebuttable presumption, but an afghani owner would not—there is no connection between 84 city of richmond v. j.a. croson co., 488 u.s. 469 (1989). 85 mid-am. milling co., llc v. united states dep’t of transportation, no. 3:23-cv-00072-gfvt, 2024 wl 4267183 (e.d. ky. sept. 23, 2024), opinion clarified, no. 3:23-cv-00072-gfvt, 2024 wl 4635430 (e.d. ky. oct. 31, 2024). 86 mid-am. milling co., 2024 wl 4267183, at *9 (e.d. ky. sept. 23, 2024). 1281 colum. j. race & l. [vol. 15:1251 the plan’s goals and its methods.87 as in sffa, this example and the ethnicities singled out for the purposes of the point, do not mirror the identities of the plaintiffs who brought the cases. this waving of a non-white flag distracts from the opinion’s further protection of whiteness’ legal suspicion while resting said protection on a manufactured concern of under-inclusivity. this solidifies that sffa’s circularity of using an under-inclusivity argument to defeat the defendant’s attempts to get around claims of over-broadness is being used in pursuit of dampening narrow tailoring avenues that would benefit non-white people. however, it is the opinion’s homing in on sffa’s use of grutter’s temporal element that is the loudest extension of sffa’s demolition of narrow tailoring. mid-am milling provides no more analysis than “enough is enough” to explain that the dbe’s lack of an endpoint disqualifies its tailoring.88 because the dbe has existed since “kenny rogers’s and dolly parton’s ‘islands in the stream’ topped the country music charts for two straight weeks,” the program has no “foreseeable conclusion.”89 this underscores that sffa’s obsession with grutter’s end-point greenlights separating context from time in favor of time alone. so, effective challenges to racial-remedial actions are made using an “enough is enough” argument. of course, this logic is not readily available to all racial and ethnic groups and is inherently disparate in and of itself. on the one hand, the vague expectation of a remedial program having an “end” is enough to sustain a fourteenth amendment challenge. but on the other hand, a mountain of past racial discrimination is not enough to justify a remedial program unless it is specific, yet flexible, and sealed with an expiration date. 87 id. 88 id. at *1. 89 id. at *10. 2025] sabotaging scrutiny 1282 iii. using old tricks on an old dog – the thirteenth amendment as a solution post-sffa, challenges to racial classifications and racial-remedial policies from non-white people require staring down a precedent-sized wall. whether that wall can be successfully mounted has been up for debate in the year following the decision, with many arguing that affirmative action is sealed in its tomb.90 available enrollment data from selective higher education institutions reveal that sffa has had a mixed effect on black and hispanic enrollment so far at the undergraduate level.91 notably, harvard saw a 4% decrease in its enrollment of black students, while unc saw a 2.7% drop in black enrollment and a 0.7% enrollment decrease in latin students. asian american enrollment at harvard remained at 37%, while it rose 1% at unc. results are similarly mixed at the graduate level, specifically for law schools where black enrollment has increased overall by 3% according to the american bar association, despite the jd programs at harvard and unc suffering relatively steep declines for black and hispanic admission.92 asian american enrollment falling at selective universities such as yale, princeton, and duke prompted edward blum, president of students for fair admissions, to announce that the organization may sue 90 see jelani cobb, the end of affirmative action, the new yorker (june 29, 2023). https://www.newyorker.com/magazine/2023/07/10/the-end-of-affirmative-action; uma mayzck jayakumar & ibram x. kendi, ‘race neutral’ is the new ‘separate but equal’, the atlantic, (june 29, 2023) https://www.theatlantic.com/ideas/archive/2023/06/supreme-court-affirmative-action-race-neutral admissions/674565/; zak-cheney rice, affirmative action never had a chance, new york magazine (june 12, 2023) https://nymag.com/intelligencer/2023/06/affirmative-action-never-had-a-chance.html. 91 nicole narea, the impact of the supreme court’s reversal of affirmative action, explained in one chart, vox, (sep. 12, 2024) https://www.vox.com/policy/370854/affirmative-action-black-enrollment-universities diversity-supreme-court; anemona hartocollis & stephanie saul, affirmative action was banned. what happened next was confusing.,the new york times (sep. 13, 2024). https://www.nytimes.com/2024/09/13/us/affirmative action-ban-campus-diversity.html and james murphy, tracking the impact of the sffa decision on college admissions, education reform now (sep. 9 2024) https://edreformnow.org/2024/09/09/tracking-the-impact-of the-sffa-decision-on-college-admissions/. 92 in 2024, only 3.4% of harvard law’s incoming class was black—the lowest that number has been since the 1960s. at u.n.c. law, black enrollment dropped from 13 to 9 students and hispanic enrollment dropped from 21 to 13 between 2023 and 2024. see anemona hartocollis & stephanie saul, black student enrollment at harvard law drops by more than half, the new york times (dec. 13, 2024). https://www.nytimes.com/2024/12/16/us/harvard-law-black-students-enrollment-decline.html. https://www.newyorker.com/magazine/2023/07/10/the-end-of-affirmative-action%3b https://www.theatlantic.com/ideas/archive/2023/06/supreme-court-affirmative-action-race-neutralhttps://nymag.com/intelligencer/2023/06/affirmative-action-never-had-a-chance.html https://www.vox.com/policy/370854/affirmative-action-black-enrollment-universitieshttps://www.nytimes.com/2024/09/13/us/affirmativehttps://edreformnow.org/2024/09/09/tracking-the-impact-ofhttps://www.nytimes.com/2024/12/16/us/harvard-law-black-students-enrollment-decline.html 1283 colum. j. race & l. [vol. 15:1251 additional schools to ensure compliance with the parameters outlined in sffa.93 regardless, the “too soon to call” nature of this data has all minority groups waiting with bated breath to draw conclusions about the case’s impact. this anxiety, coupled with the department of education’s current probing of harvard’s legacy admissions policy, is a brewing storm for litigation that will invoke sffa’s distortion of suspect classification.94 95 while there are no precise answers or strategies widely presented for this potential litigation, the thirteenth amendment’s prohibition against “all badges and incidents of slavery” presents a potential barricade.96 and even though the thirteenth amendment has been historically underutilized in jurisprudence, the unprecedented nature of sffa warrants genuine consideration of the amendment’s redistributive and remedial properties.97 the potential power of the thirteenth amendment in race-related cases due to the ambiguity of section 1 of the amendment is, of course, not a new suggestion or theory.98 further, neither the supreme court nor the lower courts have ever seriously entertained consideration of the amendment’s congressional enforcement power in section 2 or provided a definitive answer on what is and is not a “badge” or “incident” entitled to coverage by section 1. but the uncertainty of sffa’s impact on admissions results coupled with 93 anemona hartocollis, yale, princeton, and duke are questioned over decline in asian students, the new york times (sep. 17, 2024) https://www.nytimes.com/2024/09/17/us/yale-princeton-duke-asian-students affirmative-action.html and edward blum, letter to vice president and general counsel of duke university, students for fair admissions (sep. 17, 2024). https://studentsforfairadmissions.org/wp-content/uploads/2024/09/sffa letters-to-princeton-duke-and-yale.pdf. 94 hartocollis and saul, supra note 84, “the results have confused experts and admissions officials. they have also raised questions about admissions practices and who will get access to the nation’s most elite campuses in the future.” 95 anemona hartocollis & michael d. shear, education dept. opens civil rights inquiry into harvard’s legacy admissions, the new york times, (july 15, 2023) https://www.nytimes.com/2023/07/25/us/politics/harvard-admissions-civil-rights-inquiry.html and stephanie saul, harvard’s admissions is challenged for favoring children of alumni, the new york times (july 3, 2023) https://www.nytimes.com/2023/07/03/us/harvard-alumni-children-affirmative-action.html. 96 civil rights cases, 109 u.s. 3, 21 (1883). 97 “with a few exceptions, such as early twentieth-century cases invalidating state laws establishing peonage, there is still very little thirteenth amendment jurisprudence.” eric foner, epilogue, in a second founding, 169, 169-76 (2020). 98 james gray pope, section 1 of the thirteenth amendment and the badges and incidents of slavery, 65 ucla l. rev. 426 (march 2018). https://www.nytimes.com/2024/09/17/us/yale-princeton-duke-asian-studentshttps://studentsforfairadmissions.org/wp-content/uploads/2024/09/sffahttps://www.nytimes.com/2023/07/25/us/politics/harvard-admissions-civil-rights-inquiry.html https://www.nytimes.com/2023/07/03/us/harvard-alumni-children-affirmative-action.html https://1.next.westlaw.com/document/icde6be339cc211d993e6d35cc61aab4a/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_21%2cco_pp_sp_708_28 2025] sabotaging scrutiny 1284 its disproportionate inflation of equal protection for white people, creates a moment particularly suited for investing in the thirteenth amendment. honoring that the fourteenth amendment was created under the guise of enhancing the thirteenth amendment’s protections for newly freed slaves but ultimately narrowed them is pivotal to accessing this argument.99 sffa is a crescendo of the fourteenth amendment’s recession in the affirmative action context, as its pushing of the amendment’s boundaries makes overinclusion regressive. thus, the thirteenth amendment now offers a more genuine fulfillment of the fourteenth amendment’s promises for black people (and potentially other minorities), as it specifically refers to the institution of slavery, and is therefore the best attempt for litigators to confront sffa’s deterioration of strict scrutiny. accordingly, black and non-white litigants should argue that the thirteenth amendment’s prohibition against the badges and incidents of slavery constitutionally protects race-conscious admissions policies.100 in so stridently avoiding an “indiscriminate imposition of inequalities,” the roberts court has created a discriminant imposition of equality.101 because sffa plugs the legal history of whiteness being separate yet concurrently the same as other races into the equal protection clause, black people and minorities have been shuttled away from suspect classification into a suspended state of, at most, quasi-protection/suspicion. the thirteenth amendment offers an escape route and prevents dilution and artificial overinclusion because it, on its own, constitutes the same protective/class-based insulation the fourteenth amendment previously supported. section 1 of 99 mark a. graber, subtraction by addition: the thirteenth and fourteenth amendments, 112 colum. l. rev. 1506,1501-50 (november 2012). 100 although beyond the direct scope of this paper, this argument could also be used to call into question race neutral admissions policies that have a disparate and/or discriminatory impact. 101 “the contrary position-that the constitution insulates unintentional discrimination against race-conscious remedies-confers upon whites a constitutional right to enjoy the benefits of racial discrimination that is not probably intentional. although individual white job applicants might be entirely innocent of race discrimination themselves, it is difficult to see why that innocence should endow them with a constitutional right to profit from invidious racial discrimination directed against equally innocent black applicants.” shelley v. kraemer, 334 u.s. 1, 22. see also supra note 90, at 476. 1285 colum. j. race & l. [vol. 15:1251 the thirteenth amendment is the most relevant for the purposes of this argument because it provides the basis of the “badges and incidents” doctrine: neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the united states, or any place subject to their jurisdiction.102 jones v. alfred h. mayer co., decided in 1968, is the singular case providing the backbone of badges and incidents doctrine.103 in jones, the court decided that discrimination in the sale of homes ran afoul of the purpose and intention behind the thirteenth amendment’s ratification. writing for a 7-2 majority, justice potter stewart asserted that the freedom protected by the thirteenth amendment necessarily entails one-to-one parity between white and black people.104 legalizing any less, stewart wrote, meant that “the thirteenth amendment made a promise the nation cannot keep.”105 although jones’ conclusion rests upon congress’ ability to enforce the thirteenth amendment via section 2, the case does not erase the thirteenth amendment’s self executing power, and no successive case law has either.106 therefore, jones provides an open door for exploration of the thirteenth amendment as a self-executing path to group-based protection and affirmative remedies for black people.107 102 u.s. const. amend xiii, § 1. 103 since jones, “the court has never gone on to define more broadly the badges and incidents of slavery.” foner, supra note 88, at 170. 104 “negro citizens, north and south, who saw in the thirteenth amendment a promise of freedom—freedom to “go and come at pleasure” and to “buy and sell when they please”—would be left with “a mere paper guarantee” if congress were powerless to assure that a dollar in the hands of a negro will purchase the same thing as a dollar in the hands of a white man. at the very least, the freedom that congress is empowered to secure under the thirteenth amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live.” jones v. alfred h. mayer co., 392 u.s. 409, 443 (1968). 105 id. 106 “neither in jones nor in subsequent cases, however, has the court defined the amendment's self-executing scope. the jones court specifically reserved the question of whether the amendment, in the absence of implementing legislation, reaches the badges and incidents of slavery.” william m. carter jr., race, rights, and the thirteenth amendment: defining the badges and incidents of slavery, 40 u.c. davis l. rev. 1311, 1314 (april 2007). 107 the court’s opinion in palmer v. thompson invites pause, as there it was said that adapting jones’ discussion of the badges and incidents of slavery to provide the court with the power to declare pool segregation laws violative of the thirteenth amendment “would severely stretch its short simple words and do violence to its history.” however, these words in palmer ought to be construed as limited to the court’s concern that allowing the thirteenth https://1.next.westlaw.com/document/i179329e09c1f11d993e6d35cc61aab4a/view/fulltext.html?transitiontype=default&contextdata=(oc.default)&documentsection=co_pp_sp_780_443%2cco_pp_sp_708_2205 2025] sabotaging scrutiny 1286 the knee-jerk response to this argument is that, in constitutional jurisprudence, amendments cannot eclipse one another, which is particularly true of the thirteenth and fourteenth amendment due to their connected origins. this has been precisely addressed in the affirmative action context by legal scholar james gray pope.108 however, pope’s caution, which rested on the court’s faithful adherence to strict scrutiny, arrived before sffa evicted black people from comprehensive suspect classification. with sffa’s corrosion of suspect classification, the thirteenth and fourteenth amendments no longer have to worry about accommodating the same guests for affirmative action challenges. if litigators and judges cling to the textual clarity of the thirteenth amendment and the underdevelopment of its badges and incidents doctrine, it will not be in a bid to compete with the equal protection clause. instead, utilizing the thirteenth amendment will provide access to classification protections that cannot be as easily invaded as the fourteenth amendment and its jurisprudence. the temporal potency of sffa should be considered an indication that fourteenth amendment jurisprudence will not unwind itself from its tapered position under the current court. additionally, sffa signals that the equal protection clause’s applicability to groups that are not discrete and insular could become so proficiently load bearing that it will be repeatedly cinched to the point of no return. the thirteenth amendment’s amendment to be self-executing in municipal matters such as pool closings, is unduly capacious, not that the thirteenth amendment being self-executing at all is unattainable. palmer v. thompson, 403 u.s. 217, 226 (1971). 108 “even if the thirteenth amendment could support affirmative action on behalf of african americans, however, there remains the problem of accommodation with fourteenth amendment jurisprudence, which currently requires strict scrutiny of all race-conscious affirmative action. "neither amendment 'trumps' the other," observes akhil amar; "rather they must be synthesized into a coherent doctrinal whole." if courts were to restore the republican understanding that section 1 of the thirteenth amendment itself bans more than the core incidents of slavery, then that synthesis would proceed from a starting point very different from that of the fourteenth amendment affirmative action cases. it is hard to imagine, for example, that a court imbued with that understanding would arrive at a synthesized principle entitling members of a dominant race, endowed with the historic badge of mastery whiteness-to block government action designed to eliminate the continuing significance of blackness as a badge of subordination and exclusion.” james gray pope, supra note 90, at 477 quoting akhil reed amar, case of the missing amendments: r.a.v. v. city of st. paul, 106 harv. l. rev. 124, 157 n.180 (november 1992). 1287 colum. j. race & l. [vol. 15:1251 explicit emphasis on protecting against slavery insulates black people from the gratuitous approach to suspect classification embraced by existing fourteenth amendment jurisprudence. three additional considerations lie in how to incorporate non-black minorities into the thirteenth amendment’s embrace for the purposes of affirmative action. first, no precedent categorically denies non-black people access to the thirteenth amendment as a way to bring an implied right of action case. instead, courts have often upheld claims for non-black people dependent upon the thirteenth amendment as a mechanism of enforcement for legislation.109 second, america’s particular relationship with race, and how much of it is predicated on a dichotomy of whiteness versus blackness due to slavery, has long placed non-black minorities' access to rights and citizenship in the shadow of slavery.110 together, these details show that non black people could adequately make a case that they are entitled to access the thirteenth amendment/badges and incidents doctrine. however, there is the counterpoint that blackness’s historical inelasticity does not provide it the same proximity to whiteness that other racial groups have. and that inelasticity, coupled with the purpose of the 39th congress in ratifying the thirteenth amendment to destroy black enslavement, means that if the amendment is taken seriously as a new vehicle for class protection, it is only genuinely within reach for black 109 “the supreme court has held that a variety of civil rights statutes passed pursuant to the thirteenth amendment do apply to persons who are not african american. see, e.g., shaare tefila congregation v. cobb, 481 u.s. 615 (1987) (holding that 42 u.s.c. § 1982 applies to discrimination against jewish persons); mcdonald v. santa fe trail transp. co., 427 u.s. 273 (1976) (noting that 42 u.s.c. § 1981 applies to discrimination in making or enforcement of contracts without regard to victim's race).” william m. carter jr, supra note 97, at n. 6. 110 karla mckanders, politics of belonging: anti-black racism, xenophobia, and disinformation, harvard law review, (nov. 18, 2024) https://harvardlawreview.org/blog/2024/11/politics-of-belonging-anti-black-racism xenophobia-and-disinformation/; immigration and citizenship: interview with letti volpp, race: the power of an illusion, (last visited jan. 7, 2024) https://www.racepowerofanillusion.org/videos/immigration-citizenship-interview leti-volpp; kenneth l. karst, foreword: equal citizenship under the fourteenth amendment, 91 harv. l. rev. 1, 50 (november 1977); devon w. carbado, yellow by law, 97 calif. l. rev. 633, 633 (june 2009); natasha howard, black in the non-black imagination: how anti-black ideology shapes non-black racial discourse (2011) (ph. d. dissertation, the university of mexico; jonathan w. warren, and france winddance twine, white americans, the new minority?: non-blacks and the ever-expanding boundaries of whiteness, 28 journal of black studies, 200-18, (1997). https://harvardlawreview.org/blog/2024/11/politics-of-belonging-anti-black-racismhttps://www.racepowerofanillusion.org/videos/immigration-citizenship-interview2025] sabotaging scrutiny 1288 americans.111 additionally, america’s failure to provide reparations to black americans for slavery could be presented as an indication that the thirteenth amendment will remain an unfulfilled promise.112 there is certainly credence owed to the idea that if the thirteenth amendment has not fully protected the very group it was tailored for, litigants may have a hard time extending its objectives to non-black people. third, it is worth considering (1) whether the court would genuinely engage with a thirteenth amendment-based argument, and (2) whether it is worth testing the resilience of the thirteenth amendment in front of the court. although the court has not contemporarily entertained the thirteenth amendment seriously that does not mean the exercise of understanding it as a solution to the fourteenth amendment’s foreclosure is futile. further, no case begins with the supreme court. so even if the thirteenth amendment’s value as the fourteenth’s surrogate could lend itself to unfavorable results, the pathway of that potential will have to make its way from the lower courts first. additionally, the court does not seem to be slowing its inversion of protections, as it seems ready to rule in favor of a straight woman bringing forth sexual orientation discrimination claims in ames v. ohio department of youth services.113 but, regardless, the precision and depth of suspect classification’s coring in sffa has unfortunately primed the thirteenth amendment for vindication. 111 this was precisely the position taken in the slaughterhouse cases: “such power is not forbidden by the thirteenth article of amendment and by the first section of the fourteenth article. an examination of the history of the causes which led to the adoption of those amendments and of the amendments themselves, demonstrates that the main purpose of all the three last amendments was the freedom of the african race, the security and perpetuation of that freedom, and their protection from the oppressions of the white men who had formerly held them in slavery.” slaughterhouse cases 83 u.s. 36, 37 (1872). 112 ta-nehisi coates, the case for reparations, the atlantic, (june 15, 2024) https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/; edieth y. wu, reparations to african-americans: the only remedy for the u.s. government's failure to enforce the 13th, 14th, and 15th amendments, 3 conn. pub. int. l.j. 403 (spring 2004); ta-nehisi coates revisits the case for reparations, the new yorker, (june 10, 2019) https://www.newyorker.com/news/the-new-yorker-interview/ta-nehisi-coates-revisits the-case-for-reparations. 113 adam liptak, supreme court poised to rule for straight woman in discrimination case, the new york times, (feb. 26, 2025) https://www.nytimes.com/2025/02/26/us/politics/supreme-court-reverse-discrimination.html. https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/%3b https://www.newyorker.com/news/the-new-yorker-interview/ta-nehisi-coates-revisitshttps://www.nytimes.com/2025/02/26/us/politics/supreme-court-reverse-discrimination.html 1289 colum. j. race & l. [vol. 15:1251 conclusion perhaps justice roberts’s declaration that “college admissions are zero-sum” is best read as the court communicating that race relations in the united states are zero-sum. the opinion’s dilution of suspect classification has doctrinally placed whiteness in a league of its own. now, complete access to the equal protection clause requires a pin that only some are given at birth: whiteness. the concentric imbalances assembled in sffa are so striking in effect that it is as if the court is encouraging judges and litigants alike to consider the fourteenth amendment a fledgling. luckily, it is easier to redirect an old dog with old tricks than new tricks, and fortunately the thirteenth amendment is no stranger to america and its highest court (even if it is treated as such). and while pressing for what is owed in an era of encroaching entitlement can seem futile, the truth is that nothing beats a failure but a try. in theory, then, invoking the thirteenth amendment could serve as the antidote for sffa’s shriveling of the fourteenth amendment and give the court a chance to recognize its failure(s) and give sincere equality a try. columbia journal of race and law vol. 15. may 2025 no. 1 article lest we forget: covid-19, the defense production act, and executive order 13,917 n. brock enger 1 abstract during his 2024 presidential campaign, donald trump claimed that the ongoing conflicts in ukraine and gaza would not have occurred had he been reelected in 2020. however, during his first presidency, president trump faced another significant adversary—the covid-19 pandemic caused by severe acute respiratory syndrome coronavirus 2 (sars-cov-2)—and many contend that trump’s inadequate response to this viral enemy contributed significantly to his 2020 election loss. central to the pandemic response was the defense production act, a cold war– era statute granting broad emergency powers. this article argues that the trump administration fundamentally misunderstood the defense production act, initially by failing to invoke it promptly to secure critical medical supplies, and later by misapplying it via executive order 13,917 to compel meat-processing operations in a manner that ultimately prioritized corporate profits over worker safety. with the notable exception of operation warp speed and a few less noteworthy instances, the trump administration’s use of the defense production act largely failed to safeguard the nation’s public health and harmed vulnerable workers in the meatpacking industry. compounding these failures, the meatpacking industry, usda, and osha also largely failed to meaningfully protect these workers, many of whom are members of communities suffering the impacts of marginalization. meat-processing workers labored in the shadows of public concern under conditions that paralleled the industry’s treatment of animals—both denied meaningful protection, both ultimately treated as disposable. in either case, the underlying assumption seems clear: some lives matter less than money. 1 attorney at law. copyright © 2025 n. brock enger, jd, mba. thank you to david s. schwartz, steph tai, the editors of the columbia journal of race and law, k. brock, and m. brock. a special thank you to esther c. 2025] lest we forget 1194 this article ultimately serves as a resource for policymakers and attorneys, highlighting how the defense production act, when judiciously deployed, can effectively safeguard public health, protect worker rights, and affirm the nation’s commitment to valuing human life. 1195 colum. j. race & l. [vol. 15:1193 introduction 1196 i. the defense production act: an overview 1201 a. title i—priorities and allocations 1205 b. title iii—expansion of productive capacity and supply 1207 c. title vii—general provisions 1208 ii. the controversial executive order 13,917 1209 a. the context of the crisis 1209 b. the origins of the order 1213 c. the impact of invocation 1216 iii. the usda, osha, and covid-19 in meat-processing facilities 1218 a. the usda’s implementation of executive order 13,917 1218 b. osha’s negligible response 1220 iv. potential bases to challenge executive order 13,917 1224 a. fifth amendment due process clause 1225 1. procedural due process: deprivations of “life, liberty, and property” without notice and an opportunity to be heard 1226 2. substantive due process: the fundamental right to life 1228 b. ultra vires doctrine 1230 conclusion 1233 2025] lest we forget 1196 introduction “if you know the enemy and know yourself, you need not fear the result of a hundred battles.” ––sun tzu, the art of war president donald trump, during his 2024 presidential campaign, asserted that the ongoing conflicts in ukraine and gaza would not have occurred under his leadership. he claimed that, had he been reelected in 2020, vladimir putin would not have invaded ukraine on february 24, 2022, and neither would israel have been attacked by hamas on october 7, 2023.2 while his diplomatic efforts with russia and north korea may support these assertions, they nonetheless overshadow the fact that, during his first term, the united states was engaged in another war—one against a deadly virus: severe acute respiratory syndrome coronavirus 2 (sarscov-2). when faced with a pandemic that demanded imminent, decisive action, many contend that president trump failed to rise to the occasion—and that his administration’s mismanagement of the crisis ultimately cost him the 2020 election.3 if this is so, then one could deduce and proceed to argue that these conflicts might not have occurred had trump’s leadership during the covid-19 pandemic been deemed sufficient by the american public. because collective memory is short, it is crucial to revisit and critically examine how the pandemic response impacted american lives—particularly the decisions that had consequences for some of society’s most vulnerable: workers in american meat-processing facilities. this article argues that the trump administration fundamentally misunderstood the defense production act—failing to invoke it when urgently needed to secure personal protective equipment, and later invoking it to mandate meat-processing plant operations in a way that prioritized corporate profit over worker safety. the defense production act—a cold war–era law granting broad emergency powers—was arguably the most significant statutory vehicle available to the president in confronting the viral 2 see, e.g., tracy wilkinson, trump’s answer to foreign policy woes: never would have happened, la times (june 27, 2024), https://www.latimes.com/politics/story/2024-06-27/debate-trump-foreignpolicy-russia-ukraine-gaza-israel; edith m. lederer, trump says he can end the russia-ukraine war in one day. russia’s un ambassador says he can’t, the associated press (july 2, 2024), https://apnews.com/article/trump-russiaukraine-war-un-election-a78ecb843af452b8dda1d52d137ca893. 3 see, e.g., alex isenstadt, trump pollster’s campaign autopsy paints damning picture of defeat, politico (feb. 01, 2021), https://www.politico.com/news/2021/02/01/trump-campaign-autopsy-paintsdamning-picture-of-defeat-464636. 1197 colum. j. race & l. [vol. 15:1193 enemy, sars-cov-2.4 by learning from both missteps and successes, public officials can ensure that the defense production act is fully utilized and effectively leveraged in future pandemics to protect public health and safeguard worker rights. ultimately, this article serves as a resource for public officials and attorneys—both to understand what went wrong, and to more effectively utilize the defense production act in future public health emergencies. to be sure, the entire nation was unprepared for covid-19. in january 2020, president trump was informed by experts that the worst global pandemic since the 1918 influenza outbreak was about to spread throughout the united states.5 he concededly “play[ed] it down” to avoid widespread panic.6 in march 2020, when governors sought federal assistance in obtaining critical medical supplies, he stated, at one point, to “try getting it yourselves.”7 he also hesitated to fully deploy the defense production act early on to obtain necessary medical supplies, citing that “we’re a country not based on nationalizing our business.”8 at various points during the pandemic, his decisions fueled controversy. hospital medical supplies were seized and redirected,9 protests against state stay-athome orders were encouraged,10 and sars-cov-2 was referred to as the “china virus”—rhetoric widely criticized for inflaming anti 4 see defense production act of 1950, 50 u.s.c. §§ 4501–4568. 5 see, e.g., ed pilkington & martin pengelly, trump was warned in january of covid-19's devastating impact, memos reveal, the guardian (apr. 7, 2020), https://www.theguardian.com/world/2020/apr/07/donald-trump-coronavirusmemos-warning-peter-navarro. 6 see, e.g., dareh gregorian, trump told bob woodward he knew in february that covid-19 was 'deadly stuff' but wanted to 'play it down', nbc news (sept. 9, 2020), https://www.nbcnews.com/politics/donald-trump/trump-told-bobwoodward-he-knew-february-covid-19-was-n1239658. 7 see, e.g., juliette kayyem, trump leaves states to fend for themselves, the atlantic (mar. 17, 2020), https://www.theatlantic.com/ideas/archive/2020/03/ america-has-never-had-50-state-disaster-before/608155/. 8 see, e.g., james doubek, trump compares defense production act to nationalization, npr (mar. 23, 2020), https://www.npr.org/sections/coronaviruslive-updates/2020/03/23/819926854/fact-check-trump-compares-defenseproduction-act-to-nationalization. 9 see, e.g., noam n. levey, hospitals say feds are seizing masks and other coronavirus supplies without a word, la times (apr. 7, 2020), https://www.latimes.com/politics/story/2020-04-07/hospitals-washington-seizecoronavirus-supplies. 10 see, e.g., michael d. shear & sarah mervosh, trump encourages protest against governors who have imposed virus restrictions, n.y. times (apr. 29, 2020), https://www.nytimes.com/2020/04/17/us/politics/trump-coronavirusgovernors.html. 2025] lest we forget 1198 asian sentiment.11 mask-wearing was publicly questioned,12 dr. anthony fauci’s judgment was scrutinized,13 the idea of letting the virus “wash over” the u.s. was considered,14 and efforts to dismantle the affordable care act continued at a time when healthcare access was critical.15 large-scale, in-person campaign rallies were also held, which were linked to increased transmission of the virus.16 such actions, many contend, contributed to unnecessary suffering across the united states. tragically, by the time president trump left office on january 20, 2021, more than 400,000 americans had reportedly died from covid-19—an immeasurable loss that might have been substantially reduced had the defense production act been invoked optimally.17 11 see, e.g., sabrina tavernise & richard a. oppel jr., spit on, yelled at, attacked: chinese-americans fear for their safety, n.y. times (june 2, 2020), https://www.nytimes.com/2020/03/23/us/chinese-coronavirus-racistattacks.html. 12 see, e.g., robert mackey, trump is hospitalized with covid-19, days after mocking biden for wearing a mask, the intercept (oct. 2, 2020), https://theintercept.com/2020/10/02/trump-tests-positive-covid-48-hoursmocking-biden-wearing-mask/. 13 see, e.g., sheryl gay stolberg, maggie haberman, & noah weiland, trump calls fauci ‘a disaster’ and shrugs off virus as infections soar, n.y. times (oct. 19, 2020), https://www.nytimes.com/2020/10/19/us/politics/trump-faucicovid.html. 14 see, e.g., chidanand rajghatta, ‘trump asked why not allow coronavirus to wash over us’ as toll passes 21,000, times of india (apr. 12, 2020), https://timesofindia.indiatimes.com/world/us/trump-asked-why-not-allowcoronavirus-to-wash-over-us-as-toll-passes-21000/articleshow/75111561.cms. 15 see, e.g., aviva aron-dine, trump's renewed effort to dismantle obamacare is particularly cruel during the pandemic, business insider (july 7, 2020), https://www.businessinsider.com/trump-obamacare-affordable-care-act-covid19-healthcare-pandemic-coronavirus-2020-7. 16 see, e.g., gene lyons, trump super-spreader events are immoral and criminal, chicago sun-times (oct. 28, 2020), https://chicago.suntimes.com/columnists /2020/10/28/21539209/trump-maga-rally-super-spreaders-typhoid-mary-genelyons; carol d. leonnig & josh dawsey, more than 130 secret service officers are said to be infected with coronavirus or quarantining in wake of trump’s campaign travel, the washington post (nov. 13, 2020), https://www.washingtonpost.com/politics/secret-service-coronavirusoutbreak/2020/11/13/610eebcc-2539-11eb-8672-c281c7a2c96e_story.html. 17 adam geller & janie har, ‘shameful': us virus deaths top 400k as trump leaves office, the associated press (jan. 19, 2021), https://apnews.com/article/donald-trump-pandemics-public-health-coronaviruspandemic-f6e976f34a6971c889ca8a4c5e1c0068. see also rebecca bratspies, this great catastrophe: bungling pandemics from 1918 to today, 30 mich. st. int'l.l. rev. 189, 219 (2022) (arguing that while “[t]housands of americans would have died because of the covid-19 pandemic, no matter who was in the white house,” “the trump administration’s incompetence and malfeasance ensured that the carnage was many times worse than it might have been”); richard w. parker, why america's response to the covid-19 pandemic failed: lessons from new zealand's success, 73 admin. l. rev. 77, 84 (2021) (concluding that “if the trump administration had done as well as germany or canada,” “over 1199 colum. j. race & l. [vol. 15:1193 legal scholars18 and commentators19 have argued that president trump failed to fully exercise his authority under the defense production act—neglecting to invoke the defense production act when he should have used it,20 and misapplying it when he should not have.21 that is, his reluctance to deploy the defense production act early in the crisis was said to leave states scrambling for critical medical supplies, while his later invocation of the act through executive order 13,917 forced meat-processing facilities to remain operational, allegedly prioritizing industrial output over worker 210,000 americans now dead would still be alive today,” and that matching the performance of australia, new zealand, south korea, or japan “would have saved over 340,000 american lives”); beverly a. cigler, fighting covid-19 in the united states with federalism and other constitutional and statutory authority, 51 publius: j. federalism 673, 689 (2021) (noting the lancet commission’s conclusion that 40 percent of pandemic deaths could have been avoided “had president trump made different choices” and columbia university’s national center for disease preparedness suggestion that stronger national action early in the pandemic might have resulted in 130,000-210,000 fewer deaths). 18 see, e.g., jane chong, defense production act, the atlantic (apr. 6, 2020), https://www.theatlantic.com/ideas/archive/2020/04/how-actually-use-dpa-fightcovid-19/609469/. 19 see, e.g., caleb watney & alec stapp, trump is using the defense production act all wrong, politico (apr. 9, 2020), https://www.politico.com/news/ agenda/2020/04/09/trump-defense-production-act-175920. 20 see, e.g., ayesha rascoe, trump resists using wartime law to get, distribute coronavirus supplies, npr (mar. 25, 2020), https://www.npr.org/2020/03/25/821285204/trump-sends-mixed-messagesabout-invoking-defense-production-act; li zhou, how congress could force trump to use the defense production act, vox (mar. 25, 2020), https://www.vox.com/2020/3/25/21191600/congress-defense-production-acttrump; press release, debbie wasserman schultz, top va appropriators in congress to trump: fully deploy defense production act to protect health workers, veterans (apr. 27, 2020), https://wassermanschultz.house.gov/news/ documentsingle.aspx?documentid=2489; press release, chris van hollen, van hollen, schatz, senators to trump: instead of deflecting blame for failing covid-19 response, fully invoke defense production act (may 15, 2020), https://www.vanhollen.senate.gov/news/press-releases/van-hollen-schatzsenators-to-trump-instead-of-deflecting-blame-for-failing-covid-19-responsefully-invoke-defense-production-act; andrew jacobs, despite claims, trump rarely uses wartime law in battle against covid, n.y. times (sept. 23, 2020), https://www.nytimes.com/2020/09/22/health/covid-trump-defense-productionact.html. 21 see, e.g., john rehm, immunity by executive order probably isn’t constitutional, but beware of federal immunity for covid-19 in workers’ compensation, workers’ compensation watch (may 4, 2020), https://workerscompensationwatch.com/2020/05/04/beware-covid-19-relatedfederalization-of-workers-compensation/; richard trumka, trump’s dangerous decision on meatpacking plants, n.y. times (may 7, 2020), https://www.nytimes.com/2020/05/07/opinion/trump-meat-plantscoronavirus.html. 2025] lest we forget 1200 safety.22 moreover, some observers contend that trump exerted unnecessary influence over key administrative agencies such as the center for disease control and prevention (cdc),23 the united states department of agriculture (usda),24 and the occupational safety and health administration (osha).25 health law experts argue that these agencies, either through willful complicity or bureaucratic inaction, failed to meaningfully protect frontline workers—particularly those in meat-processing plants, where covid-19 outbreaks surged.26 this article explores one dimension of the trump administration’s handling of the pandemic: its misunderstanding of the defense production act. through a legal and policy-based analysis of the defense production act’s implementation, this article examines how the trump administration utilized this powerful federal statute and explores how it could be more effectively leveraged in future pandemics. additionally, this article situates its analysis within the broader discussion of government accountability and the crucial role the plaintiffs’ bar plays in helping enforce it. 22 see, e.g., ariel f. coto, hero and villain: the defense production act in the era of covid-19, 51 sw. l. rev. 156, 169 (2021) (contending that the trump administration’s use of the defense production act was “morally questionable” and that it “ultimately fell short of its character test.” the author contrasts this with the biden administration’s invocation of the act to bolster vaccine production, characterizing it as a “source for good,” while overlooking the trump administration’s use of the same authority for operation warp speed). 23 see, e.g., dan diamond, trump officials interfered with cdc reports on covid19, politico (sept. 12, 2020), https://www.politico.com/news/2020/09/11/ exclusive-trump-officials-interfered-with-cdc-reports-on-covid-19-412809; elisabeth buchwald, u.s. health officials say americans shouldn’t wear face masks to prevent coronavirus — here are 3 other reasons not to wear them, marketwatch (mar. 2, 2020), https://www.marketwatch.com/story/the-cdcsays-americans-dont-have-to-wear-facemasks-because-of-coronavirus-2020-0130. 24 see, e.g., michael grabell & bernice yeung, emails show the meatpacking industry drafted an executive order to keep plants open, propublica (sept. 14, 2020), https://www.propublica.org/article/emails-show-the-meatpackingindustry-drafted-an-executive-order-to-keep-plants-open. 25 see, e.g., christina zhao, 'failure to protect': trump's osha criticized for fining meatpacking plant about $10 per covid-infected worker, newsweek (sept. 10, 2020), https://www.newsweek.com/failure-protect-trumps-oshacriticized-fining-meatpacking-plant-about-10-per-covid-infected-1531150; corrinne hess, osha will oversee opening of meatpacking plants following trump order, wpr (apr. 29, 2020), https://www.wpr.org/osha-will-overseeopening-meatpacking-plants-following-trump-order. 26 see, e.g., rachel treisman, meatpacking companies, osha face investigation over coronavirus in plants, npr (feb. 1, 2021), https://www.npr.org/sections/coronavirus-live-updates/2021/02/01/962877199/ meatpacking-companies-osha-face-investigation-over-coronavirus-in-plants; olivia nevola, people over profits: why a private right of action in the occupational safety and health act is necessary during the covid-19 pandemic, 29 cardozo j. equal rts. & soc. just. 845 (2023). 1201 colum. j. race & l. [vol. 15:1193 given the failures of key federal agencies such as the usda and osha, the plaintiffs’ bar became an essential force in holding both government and corporate actors accountable for worker safety. through a close examination of these issues, this article raises important questions about how the executive branch’s interpretation—and possible misinterpretation—of the defense production act influenced crisis management, as well as the vital importance of education and awareness regarding the immense power of this federal statute. and while many of the trump administration’s actions under the defense production act were criticized as inadequate or misapplied, not all were constrained. on the contrary, one of the trump administration’s most consequential successes was operation warp speed—which proved to be a case study in effectively leveraging the defense production act to accelerate vaccine development and distribution.27 had the administration recognized the potential of this aging statute sooner, its use might have been swifter and more impactful. this article proceeds in four parts. first, part i provides an overview of the defense production act, highlighting the trump administration’s insufficient initial deployment of this powerful federal statute during the early stages of the pandemic. in so doing, it underscores the vast federal powers that should be utilized more quickly to address any future pandemic in the united states. next, part ii examines the context and one potential rationale underlying executive order 13,917, which served to mandate that meatpacking plants remain operational. then, part iii explores how the usda and osha fell short in effectively addressing covid-19 infections in meat-processing facilities—before, during, and after the implementation of executive order 13,917—requiring intervention from the plaintiffs’ bar. finally, part iv considers potential legal grounds upon which executive order 13,917 might have been challenged. i. the defense production act: an overview early on in the american covid-19 pandemic, nurses were so short on medical supplies that they had no choice but to wear 27 for further discussions of operation warp speed, see, e.g., barry sullivan, lessons of the plague years, 54 loy. u. chi. l.j. 15, 30 (2022) (noting that operation warp speed “may have been the trump administration's greatest accomplishment, as well as the one bright spot in its pandemic response.”). 2025] lest we forget 1202 garbage bags for gowns28 and coffee filters for masks.29 at one meat-processing facility in wisconsin, workers were allegedly instructed to use hairnets for masks,30 and in at least one fast-food restaurant, it was reported that food workers were donning dog diapers as face masks.31 had the defense production act been used initially as intended, such concerning reports might possibly have been avoided.32 at one point early on in the covid-19 pandemic, legislators in congress introduced a bill to require president trump to use his authority under the defense production act to produce medical equipment.33 specifically, the bill directed the president to determine, pursuant to 50 u.s.c. § 4511(b), that medical equipment—including not less than 500 million n95 respirators; 200,000 medical ventilators; 20 million face shields; 500 million pairs of medical exam gloves; and 20 million surgical gowns—was “scarce and a critical material essential to the national defense,” and that “the requirements of the national defense for such equipment cannot be met without exercising the authorities provided by the defense production act of 1950.”34 the bill further instructed the president to require emergency production of such personal 28 see, e.g., susan b. glasser, how did the u.s. end up with nurses wearing garbage bags?, the new yorker (apr. 9, 2020), https://www.newyorker.com/news/letter-from-trumps-washington/thecoronavirus-and-how-the-united-states-ended-up-with-nurses-wearing-garbagebags. 29 see, e.g., angie moreschi, pennsylvania nursing home employees resorting to coffee filter face masks during coronavirus outbreak, kiro7 (mar. 24, 2020), https://www.kiro7.com/news/trending/pennsylvania-nursing-home-employeesresorting-coffee-filter-face-masks-during-coronavirus-outbreak/kpqmlbl4cr formzn2l4py3izca; david enrich, rachel abrams, & steven kurutz, a sewing army, making masks for america, n.y. times (mar. 25, 2020), https://www.nytimes.com/2020/03/25/business/coronavirus-masks-sewers.html. 30 see, e.g., maria perez, ‘please do something’: as covid-19 swept through wisconsin food plants, companies, government failed to protect workers, milwaukee journal sentinel (aug. 13, 2020), https://www.jsonline.com/story/news/2020/07/31/wisconsin-food-plants-failedprotect-workers-covid-19-smithfield-birds-eye-diversified-meatscalumet/5334812002/. 31 see, e.g., justine coleman, mcdonald's employees allege managers provided coffee filters, dog diapers as face masks, the hill (may 28, 2020), https://thehill.com/blogs/blog-briefing-room/news/500024-mcdonaldsemployees-allege-managers-provided-coffee-filters-dog. 32 see alejandro e. camacho & robert l. glicksman, structured to fail: lessons from the trump administration’s faulty pandemic planning and response, 10 mich. j. env't & admin. l. 329, 351 (2021) (highlighting that president trump “resisted using his authority under the defense production act” to produce scarce medical supplies) 33 see medical supply chain emergency act of 2020, h.r. 6390, 116th cong. (2020) (“a bill to require the president to use authorities under the defense production act of 1950 to require emergency production of medical equipment to address the covid-19 outbreak. . .”). 34 id. 1203 colum. j. race & l. [vol. 15:1193 protective equipment (ppe), establish a fair and reasonable price for its sale, and coordinate its distribution to states based on need and vulnerability.35 instead of embracing this call to action, critics contend that the administration later interpreted the defense production act in a way that placed additional strain on workers in meat-processing facilities who were already vulnerable—while simultaneously benefiting the wealthy.36 to illustrate how difficult conditions in meat-processing facilities can be, consider the demanding requirements in some facilities where reports have indicated that bathroom breaks are routinely denied on the job, forcing workers to don adult diapers.37 the defense production act was enacted shortly before the american-korean conflict in 1950,38 and granted broad powers to the president similar to those provided by the first and second war powers acts during world war ii.39 authority for the dpa can be found in article 1, section 8; article 2, section 2; and article 4, section 4 of the u.s. constitution.40 originally containing seven titles, the dpa’s titles relating to the settlement of labor disputes, price and wage stabilization, requisition and condemnation, and control of real estate credit were allowed by congress to expire in 35 id. 36 see exec. order no. 13,917, 85 fed. reg. 26,313 (apr. 28, 2020); infra part ii. see also catherine powell, war on covid: warfare and its discontents, 70 ucla l. rev. discourse 2, 17 (2023) (describing executive order no. 13917 as an “act of executive overreach” which forced poultry workers “to risk their lives on the ostensible frontlines”). 37 see, e.g., peggy lowe, tyson foods promises better conditions and safety for meat workers, npr (apr. 26, 2017), https://www.npr.org/sections/thesalt/2017/ 04/26/525736888/tyson-foods-promises-better-conditions-and-safety-for-meatworkers. 38 see, e.g., richard h. field, economic stabilization under the defense production act of 1950, 64 harv. l. rev. 1, 1-2 (1950). 39 see, e.g., alfred l. scanlan, the defense production act of 1950, 5 rutgers l. rev. 518, 521 (1951); alfred long scanlan, defense production act extended and amended, 27 notre dame l. rev. 185, 186 (1952); rutherford day, federal government’s power to requisition under the defense production act of 1950, 41 geo. l. j. 18, 18–21 (1952). 40 see, e.g., james g. jr. hodge & kim weidenaar, public health emergencies as threats to national security, 9 j. nat’l sec. l. & pol’y 81, 84 n.19 (2017); u.s. const. art. 1, § 8 (granting broad power to congress to provide for the common defense and general welfare); u.s. const. art. 2, § 2 (granting power to the president as commander in chief); u.s. const. art. 4, § 4 (protecting states from invasion). for the authority of the defense production act as it relates to the general welfare clause, see, e.g., david s. schwartz, recovering the lost general welfare clause, 63 wm. & mary l. rev. 857, 870 (2022); david s. schwartz & n. brock enger, the dot that nearly destroyed federalism: erroneously parsing punctuation in the constitution (mar. 10, 2025) (unpublished manuscript) (on file with authors). 2025] lest we forget 1204 1953.41 what has remained are its three longstanding titles: title i—priorities and allocations (subchapter i); title iii—expansion of productive capacity and supply (subchapter ii); and title vii— general provisions (subchapter iii).42 having been reauthorized over fifty times since its enactment43 the dpa is used frequently by the federal government,44 and its current version is active until september 30, 2025.45 the requirement that the dpa be frequently reauthorized by congress is a function of the broad power it conveys to the president. historically, presidential power under the dpa has been delegated to federal agencies46 via executive order,47 although the president alone may directly prescribe regulations and issue orders under the act.48 moreover, much of the outer reach of presidential power under the dpa remains to be delineated by federal courts,49 to the extent that the text of the dpa does not require congress’s 41 see, e.g., michael h. cecire et al., cong. rsch., serv. r43767, the defense production act of 1950: history, authorities, and considerations for congress 2 (2020); defense production act of 1950, ch. 932, 64 stat. 798 (1950); infra part iv. 42 50 u.s.c. §§ 4511–4568 (2018). see also defense production act of 1950, pub. l. no. 81-774, 64 stat. 798 (1950). 43 cecire et al., supra note 41, at 1. 44 see, e.g., department of homeland security, 116th cong., rep. on def. prod. act 8 (june 24, 2019); andrew jacobs, despite claims, trump rarely uses wartime law in battle against covid, n.y. times (sept. 22, 2020), https://www.nytimes.com/2020/09/22/health/covid-trump-defense-productionact.html. 45 department of homeland security, 116th cong., rep. on def. prod. act, supra note 44, at 3. 46 see, e.g., 50 u.s.c. § 4511(d) (2018) (establishing the delegation of procedural rule-making power for title i—priorities and allocations); 15 c.f.r. §§ 700700.93 (procedural rules for title i—priorities and allocations); 50 u.s.c. § 4567 (2018) (establishing the defense production act committee “which shall coordinate and plan for on the effective use of the priorities and allocations authorities under this chapter by the departments, agencies, and independent establishments of the federal government to which the president has delegated authority under this chapter.”). 47 compare exec. order no. 13,909, 85 fed. reg. 16,227 (mar. 18, 2020) (delegating power under title i—priorities and allocations to the secretary of health and human services) with exec. order no. 13,603, 77 fed. reg. 16,651 (mar. 16, 2012) (delegating power under title i—priorities and allocations to several federal agencies). see also exec. order no. 10,340, 17 fed. reg. 3,139 (apr. 8, 1952) (“the secretary of commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense. . .”). see also infra part ii. 48 50 u.s.c. § 4554 (2018). 49 see, e.g., united states v. nixon, 418 u.s. 683, 703 (1974) (“[i]t is emphatically the province and duty of the judiciary to say what the law is.” (quoting marbury v. madison, 1 cranch 137, 177 (1803))). 1205 colum. j. race & l. [vol. 15:1193 approval.50 when congress or the president declares a national emergency, such as during the covid-19 pandemic,51 broader presidential powers are activated than would otherwise be the case.52 and counterintuitively, notwithstanding the dpa’s name and focus on “national defense,”53 the dpa can readily be deployed by the president in a national emergency such as covid-19.54 a. title i—priorities and allocations title i of the dpa articulates the priorities and allocations provisions of the act, granting the president the power to require private industry actors to accept contracts on the president’s terms (priorities authority) and to allocate materials, services, and facilities to promote the national defense (allocations authority).55 early on in the covid-19 pandemic, for example, when nurses were wearing garbage-bag gowns and coffee-filter masks, and workers in meatprocessing facilities were wearing hairnet masks,56 title i priorities authority might have been used swiftly to compel private industry actors to produce at least 500 million n95 respirators, 200,000 medical ventilators, 20 million face shields, 500 million pairs of 50 see, e.g., 50 u.s.c. § 4514(a) (2018) (joint resolution of congress required for wage and price controls). 51 see, e.g., proclamation no. 9994, 85 fed. reg. 15,337 (mar. 13, 2020). 52 see, e.g., 50 u.s.c. § 4531(a)(2) (2018); 50 u.s.c. § 4533 (2018)(a)(7)(a). 53 the term, “national defense,” presents sixteen times in the dpa’s congressional declaration of policy alone, and recurs throughout the statute. see 50 u.s.c. §§ 4502–4568 (2018). 54 see, e.g., nikiforos mathews & christopher j. cariello, covid-19 and the defense production act, orrick (mar. 22, 2020), https://www.orrick.com/en/insights/2020/03/covid-19-and-the-defenseproduction-act; andrew geltman, defusing the bug bomb: legal strategies to combat antibiotic resistant infections, 18 j. health care l. & pol’y 115, 136 n.207–21 (2015). this is because the term, “national defense,” as used in the dpa, “includes emergency preparedness activities conducted pursuant to title vi of the robert t. stafford disaster relief and emergency assistance act.” 50 u.s.c. § 4552 (2018). further, “emergency preparedness” activities include measures undertaken in preparation for, during, and following a “hazard upon the civilian population”—with the term “hazard” referring to a “natural disaster” or an accidental or man-caused event. 42 u.s.c. § 5195a (2018). the term, “natural disaster” includes catastrophes in any part of the united states causing “substantial damage or injury to civilian property or persons.” 42 u.s.c. § 5195a(2) (2018). donald trump’s executive order number 13,917, however, was issued, it appears, pursuant to “national defense” covering “critical infrastructure protection and restoration.” see infra parts ii, iv. 55 50 u.s.c. § 4511 (2018). see also eric hargan et al., vaccine law 101, 35 j.l. med. & ethics 72, 73 (2007) (mentioning that the department of health and human services could potentially “use the defense production act to require manufacturers to give priority to vaccine production for the federal government in an emergency.”). 56 see supra notes 29, 30. 2025] lest we forget 1206 medical exam gloves, and 20 million surgical gowns—as congress requested.57 however, instead of focusing on mass producing personal protective equipment (ppe), title i was initially used to ban hoarding and exportation of the little ppe that was then available, and also to mandate that meat-processing facilities stay open.58 to be sure, ensuring the continuity of meat-processing facility operations was important to the national food supply and to worker jobs and financial livelihoods, but it would have been arguably more imperative to keep the meat-processing facilities open while simultaneously ensuring that comprehensive safety protocols were consistently mandated, health measures rigorously enforced, and sufficient ppe reliably provided to fully protect workers from covid-19.59 to invoke the allocations authority under 50 u.s.c. § 4511(b) (2018)—which, prior to the covid-19 pandemic, had not been used since the cold war60—the president must find: (1) that such material is a scarce and critical material essential to the national defense, and (2) that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of 57 see letter from members of congress to president trump (mar. 13, 2020), https://sherrill.house.gov/media/press-releases/sherrill-joins-colleagues-inurgent-letter-to-the-president-to-invoke-defense-production-act-authority-andincrease-availability-of-vital-medical-supplies; michael h. cecire & heidi m. peters, cong. rsch. serv. in11231, the defense production act (dpa) and covid-19: key authorities and policy considerations 2 (2020). 58 see chong, supra note 18; exec. order no. 13,910, 85 fed. reg. 17,001 (mar. 23, 2020); infra part ii. 59 see jocelyn j. herstein et al., characteristics of sars-cov-2 transmission among meat processing workers in nebraska, usa, and effectiveness of risk mitigation measures, 27 emerging infectious diseases 1032, 1036 (2021) (finding “significantly reduced incidence of covid-19 cases in 62% of studied facilities following adoption of universal masking and physical barrier interventions”—measures which were developed and implemented with the support of the university of nebraska medical center and the nebraska department of health and human services); kelly k. dineen, meat processing workers and the covid-19 pandemic: the subrogation of people, public health, and ethics to profits and a path forward, 14 st. louis. u. j. health l. & pol'y 7, 13 (2020) (noting that workers in meat processing facilities were “left with a terrible choice between their health and their livelihood”). cf. n. brock enger, offers you can’t refuse: post-hire noncompete agreement insertions and procedural unconscionability doctrine, 2020 wis. l. rev. 769, 775 (2020) (discussing the procedural unconscionability inherent in “offers you can’t refuse”—take-it-or-leave-it contractual modifications presented by employers to existing employees). 60 cecire et al., supra note 41, at 9. 1207 colum. j. race & l. [vol. 15:1193 such material in the civilian market to such a degree as to create appreciable hardship.61 (in executive order number 13,917, president trump deemed that “meat and poultry” fit this statutory requirement.62) additionally, failure to comply with actions prohibited or required by any rule, regulation, or order issued pursuant to title i—priorities and allocations (subchapter i) of the dpa can result in criminal penalties.63 this provision appeared to have been leveraged as a veiled threat to ensure that meat-processing facilities were reopened and stayed operational.64 b. title iii— expansion of productive capacity and supply title iii—expansion of productive capacity and supply (subchapter ii)—grants the president significant authority to offer generous economic incentives to encourage private industry actors “to develop, maintain, modernize, restore, and expand the productive capacities of domestic sources for critical components, critical technology items, materials, and industrial resources essential for the execution of the national security strategy of the united states.”65 these incentives include loans66 and loan guarantees,67 direct purchases, and purchase commitments.68 under the cares act, congress expressly waived the ordinary appropriations limits on loans and loan guarantees issued pursuant to the defense production act.69 as applied to covid-19, title iii could have been a vehicle whereby manufacturing facilities of ppe were built, or existing facilities were retooled to produce it. deployed early on in the covid-19 pandemic, title iii could have been a particularly powerful tool for ramping up production of personal protective equipment. 61 50 u.s.c. § 4511(b) (2018). see also infra part iv. 62 see infra part iv. 63 50 u.s.c. § 4513 (2018) (“any person who willfully performs any act prohibited, or willfully fails to perform any act required, by the provisions of this subchapter or any rule, regulation, or order thereunder, shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than one year, or both.”). 64 see infra part ii.c. 65 50 u.s.c. § 4517 (2018). 66 see, e.g., 50 u.s.c. § 4532 (2018). 67 see, e.g., 50 u.s.c. § 4531 (2018). 68 see, e.g., 50 u.s.c. § 4533 (2018). 69 see pub. l. no. 116–136, 134 stat. 520 (2020). 2025] lest we forget 1208 c. title vii—general provisions title vii—general provisions (subchapter iii)—provides the president additional strategic authority to establish teams of experts and consultants devoted to effectively addressing emergencies such as covid-19,70 as well as to endorse private agreements among industry executives committed to effectively addressing covid-19, shielding them from antitrust liability.71 a president more inclined to listen to leading experts and foster alliances and cooperation might have been able to more effectively leverage title vii in a nationwide effort to curb covid-19 infections. for example, the trump administration could have convened public health experts, manufacturers, and logistics specialists into federally led supply chain coordination teams to identify ppe shortages early on, rapidly scale domestic production, and ensure equitable distribution.72 however, president trump’s approach to implementing the defense production act at the onset of the pandemic contributed to challenges in securing adequate ppe supplies73 and addressing alarming increases in infections.74 rather than proactively deploying federal authority, the administration initially deferred to market forces, leaving manufacturers uncertain and reluctant to retool without clear demand signals or coordination.75 when the dpa was finally invoked, its use was narrow—focused primarily on ventilator production—while critical shortages of protective equipment and test kits persisted.76 compounding the problem, the federal government left key response functions to the states, undermining the kind of centralized, expert-guided planning envisioned under title vii.77 70 see, e.g., 50 u.s.c. § 4560 (2018); chong supra note 18. 71 see, e.g., 50 u.s.c. § 4558 (2018); watney & stapp, supra note 19. 72 see parker, supra note 17, at 87–98 (describing how new zealand established a national register to coordinate ppe sourcing and completely met demand early in the pandemic by mobilizing manufacturers and logistics networks, contributing to rapid containment and economic reopening). 73 see, e.g., teresa murray & jamie friedman, nursing home safety during covid: ppe shortages (oct. 2, 2020), https://uspirg.org/feature/usp/nursing-home-safety-during-covid-ppe-shortages. 74 worldometer, united states coronavirus cases (dec. 2, 2020), https://www.worldometers.info/coronavirus/country/us/. 75 parker, supra note 17, at 87 (noting that “president trump initially resisted using the considerable powers conferred on him by the defense production act (dpa) to expand production of ppe and test kits—citing a preference for relying on market forces”); id. at 87–88 (noting that manufacturers “reported a reluctance to invest in retooling factories to make ppe in the absence of any assurance of a market after the pandemic receded, so market forces did not yield the hoped-for surge in supplies”). 76 id. at 88–89. the u.s. department of defense’s late spring 2020 contracts for production of n95 masks were a day late and a dollar short. id. at 88. 77 see cigler, supra note 17, at 683, 684. 1209 colum. j. race & l. [vol. 15:1193 ii. the controversial executive order 13,917 a key underlying intent of executive order 13,917 was to mandate the continued operation of meat-processing facilities while also serving to limit their liability for worker illnesses and deaths— actions seemingly designed to protect their profitability during the worst public health crisis in over a century.78 a. the context of the crisis since the united states’ initial outbreak of covid-19, the pandemic had a disproportionate impact on workers in meatprocessing facilities,79 many of whom face socioeconomic challenges and systemic inequalities, including disparities based on ethnicity and skin color.80 as of july 2020, for example, nearly nine out of ten workers in u.s. meat-packing plants infected by covid19 were ethnic minorities, and multiple companies operating these facilities had recently faced allegations of discrimination in lawsuits.81 these disparities have been attributed to “systemic 78 see sherley e. cruz, essentially unprotected, 96 tul. l. rev. 637, 652 (2022) (concluding that “[t]hroughout the pandemic, the meatpacking industry used its power to ensure that profits were protected” despite widespread covid-19 outbreaks at meat processing plants). see also kelly k. dineen, meat processing workers and the covid-19 pandemic: the subrogation of people, public health, and ethics to profits and a path forward, 14 st. louis u. j. health l. & pol'y 7 (2020); chalfant, infra note 117 and accompanying text (“we’re working with tyson . . . we’re going to sign an executive order today i believe, and that will solve any liability problems, and they had certain liability problems. . .”); infra note 106 and accompanying text. 79 see, e.g., meagan flynn, wisconsin chief justice sparks backlash by saying covid-19 outbreak is among meatpacking workers, not ‘the regular folks,’ the washington post (may 7, 2020), https://www.washingtonpost.com/nation /2020/05/07/meatpacking-workers-wisconsin-coronavirus/. 80 see, e.g., matt perez, 87% of meatpacking workers infected with coronavirus have been racial and ethnic minorities, cdc says, forbes (july 7, 2020), https://www.forbes.com/sites/mattperez/2020/07/07/87-of-meatpackingworkers-infected-with-coronavirus-have-been-racial-and-ethnic-minorities-cdcsays/?sh=46a03213634f; laura reiley, as coronavirus ravaged meatpackers, minorities bore the brunt. now worker groups say tyson and jbs violated the civil rights act., the washington post (july 13, 2020), https://www.washingtonpost.com/business/2020/07/13/coronavirus-meat-tysonjbs-racial-discrimination/; beth waldon, lawsuit: meat plants failed to protect workers' health, safety during pandemic, ktvo (july 8, 2020), https://ktvo.com/news/local/lawsuit-meat-plants-failed-to-protect-workershealth-safety-during-pandemic. see also herstein et al., supra note 59, at 1035 (noting that outcomes in nebraska meat processing workers supports “the increasing body of evidence that the covid-19 pandemic has disproportionately affected racial and ethnic minority groups”). 81 see, e.g., david pitt, worker advocates file meat plants discrimination complaint, ap news (july 9, 2020), https://apnews.com/article/41f90b02d3 2025] lest we forget 1210 racism in the government’s pandemic response”82 and exacerbated structural vulnerabilities, which place racial and ethnic minority workers at disproportionately high risk.83 this article points out further that this disparity reflects a troubling moral calculus: some lives are treated as expendable and undeserving of protection. meatprocessing workers labored in the shadows of public concern under conditions that paralleled the industry’s treatment of animals—both denied meaningful protection, both ultimately treated as disposable. in either case, the underlying assumption seems clear: some lives matter less than money.84 moreover, workers in meat-processing facilities are particularly vulnerable to covid-19 due to the nature of the work and the reportedly limited attention that management often gives to health and safety concerns.85 meat-processing employees frequently work in close proximity to maintain high line speeds,86 are denied bathroom breaks,87 and at times receive inadequate protective equipment. during the early stages of the pandemic, for example, reports emerged from a pennsylvania plant and another in wisconsin indicating that workers were instructed not to wear protective equipment.88 one such case involved rafael benjamin, who was eeedfc9035f4748f46ab3c. 82 ruqaiijah yearby & seema mohapatra, systemic racism, the government's pandemic response, and racial inequities in covid-19, 70 emory l.j. 1419, 1429 (2021). 83 michele goodwin & erwin chemerinsky, the trump administration: immigration, racism, and covid-19, 169 u. pa. l. rev. 313, 336–40 (2021). 84 see yearby & mohapatra, supra note 74, at 1444–45 (discussing how one industry leader ramped up pork exports during the height of the pandemic, nearly doubled its fourth-quarter 2020 earnings compared to the prior year, and challenged worker and family requests for compensation and safety protections— all while workers became sick and died from covid-19). see also stuart strother, when making money is more important than saving lives: revisiting the ford pinto case, 5 j. int'l & interdisc. bus. res. 166 (2018) (conducting a study and finding that over half of business students would choose monetary profit even if it means other people will necessarily perish). 85 see, e.g., san twin, covid-19 ravaged meat plants: my refugee mother’s life is worth more than the bottom line, usa today (oct. 1, 2020), https://www.usatoday.com/story/opinion/voices/2020/10/01/meat-packingplants-coronavirus-covid-19-death-column/3586030001/. cf. upton sinclair, the jungle (1906) (detailing the horrific working conditions in early 20thcentury chicago meatpacking plants). 86 see, e.g., gosia wozniacka, poor conditions at meatpacking plants have long put workers at risk. the pandemic makes it much worse., civil eats (apr. 17, 2020), https://civileats.com/2020/04/17/poor-conditions-at-meatpacking-plantshave-long-put-workers-at-risk-the-pandemic-makes-it-much-worse/. 87 see supra note 37. 88 see peter waldman, lydia mulvany & polly mosendz, cold, crowded, deadly: how u.s. meat plants became a virus breeding ground, bloomberg businessweek (may 7, 2020), https://www.bloomberg.com/news/features/202005-07/coronavirus-closes-meat-plants-threatens-food-supply?sref=jtuixqso; supra note 30. 1211 colum. j. race & l. [vol. 15:1193 allegedly told not to wear the mask his daughter had given him, as it might alarm other employees. he later contracted covid-19, spent his work anniversary on a ventilator, and tragically passed away.89 in a waterloo, iowa plant, working conditions purportedly “shook” a local sheriff “to the core”—with workers “crowded elbow to elbow; most without face coverings.”90 in one particularly troubling incident, a plant manager was reported to have organized a cash buy-in, winner-take-all betting pool for supervisors and managers to wager how many employees would test positive for covid-19. at least 1,000 workers at that plant tested positive and five were reported to have passed away.91 beyond concerns associated with the pandemic, working conditions in u.s. meat-processing facilities are widely considered to be among the most hazardous and physically demanding in the nation.92 wages in these plants remain low relative to the physically demanding and high-risk nature of the work.93 these challenges reflect marx’s paradox that “in the same measure in which labour becomes more unsatisfactory, more repulsive, do competition increase and wages decrease.”94 such conditions provide one example of many that fundamentally contradict the assumptions of neoclassical economic theory, which posits that compensation efficiently aligns with occupational risk.95 empirical evidence shows that hazardous and demanding jobs frequently fail to yield adequate compensating wage differentials, demonstrating structural market failures that underscore the empirical validity of keynesian economic theory—namely, that governmental intervention and regulatory oversight are necessary to correct labor-market imbalances and protect vulnerable workers.96 89 see id. 90 first amended complaint & demand for jury trial at 9, fernandez v. tyson foods, inc., no. 6:20-cv-02079-lrr-kem (n.d. iowa nov. 11, 2020). 91 id. 92 see, e.g., supra note 86; study of severe injury data finds poultry and meat workers at high risk, safety+health (may 7, 2017), https://www.safetyandhealthmagazine.com/articles/15617-study-of-severeinjury-data-finds-poultry-and-meat-workers-at-high-risk. see also steph tai, legalizing the meaning of meat, 51 loy. u. chi. l.j. 743, 761 (2020) (american consumers historically distanced themselves from the meat production process while keeping the product itself close to the dinner table). 93 see, e.g., livia gershon, why does meatpacking have such bad working conditions? jstor daily (may 8, 2020), https://daily.jstor.org/why-doesmeatpacking-have-such-bad-working-conditions/. 94 karl marx, wage-labour and capital 45 (1933). 95 see julie graham & don m. shakow, labor market segmentation and jobrelated risk: differences in risk and compensation between primary and secondary labor markets, 49 am. j. econ. & sociol. 307 (1990). 96 see peter dorman & les boden, risk without reward: the myth of wage compensation for hazardous work, econ. pol’y inst. (apr. 19, 2021), 2025] lest we forget 1212 what’s more, prior to the covid-19 pandemic, leaders in the meat-packing industry reportedly received repeated warnings about the industry's potential vulnerability to a pandemic and were advised by experts and government agencies to take appropriate precautions (precautions that, in some cases, may have required significant financial investment).97 notwithstanding such warning, the industry proved unprepared for covid-19. as the first wave of the pandemic swept through the united states in march and april of 2020, infections in meat-packing plants surged—potentially due to factors such as limited personal protective equipment, rapid line speeds, and long hours in confined working conditions.98 by april 27, 2020, some 3,963 workers in american meat-packing plants were reported to have contracted covid-19, and 27 were reported to have died.99 while some plants continued operating in ways that reportedly failed to adequately protect workers, many others, facing potential financial losses tied to legal liability, began shutting down operations—an expensive decision that resulted in steep financial losses.100 one might surmise that the plants that chose to shut down did so only when the projected costs of liability from continued https://www.epi.org/unequalpower/publications/risk-without-reward-the-mythof-wage-compensation-for-hazardous-work/. 97 see, e.g., report: the meatpacking industry ignored years of warnings about what a pandemic would mean, hppr (aug. 20, 2020), https://www.hppr.org/post/report-meatpacking-industry-ignored-years-warningsabout-what-pandemic-would-mean. 98 see, e.g., ryan j. foley, tyson foods idles largest pork plant as virus slams industry, ap news (apr. 22, 2020), https://apnews.com/article/d21fe9a4864971427d40fd2caa61ad34; justine coleman, meatpacking worker told not to wear face mask on job died of coronavirus: report, the hill (may 7, 2020), https://thehill.com/policy/finance/496595-meatpacking-worker-told-not-to-wearface-mask-on-job-died-of-coronavirus; claire kelloway, usda continues to lift meat processing line speed limits during pandemic, threatening frontline workers and consumers, food & power (apr. 9, 2020), https://www.foodandpower.net/latest/2020/04/09/usda-continues-to-lift-meatprocessing-line-speed-limits-during-pandemic-threatening-frontline-workersand-consumers; jim spencer, meatpacking plant workers need greater protection from covid-19, union says, star tribune (apr. 24, 2020), https://www.startribune.com/meat-packing-plant-workers-need-greaterprotection-from-covid-19-union-says/569906762/. see also complaint for declaratory and injunctive relief and designation of place of trial, alma v. noah’s ark processors, llc, no. 4:20-cv-03141 (d. neb. nov. 23, 2020). 99 leah douglas, mapping covid-19 outbreaks in the food system, food & env’t reporting network (apr. 22, 2020), https://thefern.org/2020/04/ mapping-covid-19-in-meat-and-food-processing-plants/. 100 see, e.g., diane gallagher & pamela kirkland, meat processing plants across the us are closing due to the pandemic. will consumers feel the impact? cnn business (apr. 27, 2020), https://www.cnn.com/2020/04/26/business/meatprocessing-plants-coronavirus/index.html; supra note 24. 1213 colum. j. race & l. [vol. 15:1193 operations outweighed the financial losses associated with closing.101 b. the origins of the order facing financial strife from shutting down the meat-packing plants, industry leaders sought president donald trump’s assistance pursuant to title i—priorities and allocations (subchapter i) authority under the defense production act.102 president trump’s authority under 50 u.s.c. § 4511(b) (2018),103 combined with the defense production act’s liability shield104 and purported compliance with cdc and osha guidelines,105 could help keep plants open and profitable by mitigating the industry’s legal exposure, despite risks to workers’ health.106 industry leaders thus sought an executive order that would shield them from liability107 101 see, e.g., erik olin wright, envisioning real utopias 74 (2010). cf. grimshaw v. ford motor co., 119 cal. app. 3d 757, 813, 174 cal. rptr. 348 (ct. app. 1981) (concluding that evidence existed that ford “engag[ed] in a costbenefit analysis balancing human lives and limbs against corporate profits”). 102 see, e.g., sky chadde, kyle bagenstose, & rachel axton, a week before trump's order protecting meat plants, industry sent draft language to feds, usa today (sept. 14, 2020), https://www.usatoday.com/story/news/2020/09/14/ covid-19-meat-plants-sought-feds-protection-local-health-depts/5797051002/. 103 “the powers granted in this section shall not be used to control the general distribution of any material in the civilian market unless the president finds (1) that such material is a scarce and critical material essential to the national defense, and (2) that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship.” see also supra part i. 104 see 50 u.s.c. § 4557 (2018) (“no person shall be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to this chapter, notwithstanding that any such rule, regulation, or order shall thereafter be declared by judicial or other competent authority to be invalid. no person shall discriminate against orders or contracts to which priority is assigned or for which materials or facilities are allocated under subchapter i of this chapter or under any rule, regulation, or order issued thereunder, by charging higher prices or by imposing different terms and conditions for such orders or contracts than for other generally comparable orders or contracts, or in any other manner.”). 105 news release, u.s. dep’t of labor, statement of enforcement policy by solicitor of labor kate o’scannlain and principal deputy assistant secretary for osha loren sweatt regarding meat and poultry processing facilities (apr. 28, 2020), https://www.dol.gov/newsroom/releases/osha/osha20200428-1. 106 see mccauliff, infra note 169, at 227 (noting that “john tyson and his supporting owners wanted to re-open the slaughterhouse plants immediately while many workers were sick, if and only if the president precluded the sick workers from suing the slaughterhouses over working conditions that promote the spread of infectious disease such as covid-19”) (emphasis in original). 107 see supra note 24. see also mccauliff, infra note 169, at 220 (“tyson “shout[ed] out[] for help from the president” and “[t]he president answered tyson (and oversaw careful negotiations with the four largest meat processing plants, the 2025] lest we forget 1214 and launched a public communications effort. on april 26, 2020, for example—just two days before trump’s issuance of executive order 13,917—john h. tyson, the grandson of tyson food’s founder and chairman of the board, stated that “our plants must remain operational” in a blog post and in full-page advertisements published in the washington post and the new york times, warning that tyson’s meat-packing plants were “being forced to close.”108 these ads characterized the situation as a threat to the nation’s food supply and tacitly conceded that meat-processing facilities had become epicenters of a catastrophic and disproportionately deadly public health crisis.109 two days later, on april 28, 2020, president trump issued executive order 13,917, effectively ordering the secretary of agriculture, sonny perdue, to ensure that meat-packing plants stay open during the covid-19 pandemic.110 executive order 13,917 closely aligned with the proposed order provided by industry leaders to trump, with only minor modifications.111 executive order 13,917 invoked the allocations authority of the dpa—which, prior to the covid-19 pandemic, had not been used since the cold war112—in an attempt to ensure that profitable meat-packing plants stayed open.113 the act was additionally intended to limit meat-packing plants’ potential exposure to liability for worker illnesses and deaths.114 before issuing executive order 13,917, trump had used allocations authority under title i of the dpa only once—merely finding that “health and medical resources needed to respond to the descendants of the slaughterhouses) to ask what they wanted done to avert the meat ‘supply crisis’”); first amended complaint & demand for jury trial at 11, fernandez v. tyson foods, inc., no. 6: 20-cv-02079-lrr-kem (n.d. iowa nov. 11, 2020) (“high-level tyson executives began lobbying the white house for covid-19 related liability protections as early as march and continued their lobbying efforts throughout april. tyson officials dined at the white house and participated in several calls with president trump and vice president pence during march and april.”). 108 see tyson foods, inc., a delicate balance: feeding the nation and keeping our employees healthy, the washington post (apr. 26, 2020), at a13, https://context-cdn.washingtonpost.com/notes/prod/default/documents/85d81e35 -f0f2-48bb-bd58-c0a133b0d8c0/note/d104a57a-0aae-4420-aa28-8bb41c99593a. #page=1; john tyson, feeding the nation and keeping our team members healthy, tyson foods: the feed blog (apr. 26, 2020), https://thefeed.blog /2020/04/26/feeding-the-nation-and-keeping-our-employees-healthy/ [https://perma.cc/vm6e-tf53]; schlosser, infra note 109. 109 see, e.g., eric schlosser, the essentials: how we’re killing the people who feed us, the atlantic (may 12, 2020), https://www.theatlantic.com/ideas/ archive/2020/05/essentials-meatpeacking-coronavirus/611437/; supra note 24. 110 see exec. order no. 13,917, 85 fed. reg. 26,313 (apr. 28, 2020). 111 see supra note 24. 112 cecire et al., supra note 41, at 9. 113 see supra note 109. 114 see, e.g., supra notes 21, 104. 1215 colum. j. race & l. [vol. 15:1193 spread of covid-19, including personal protective equipment and ventilators, meet the criteria specified in section 101(b) of the act (50 u.s.c. 4511(b)).”115 however, this initial finding had little practical effect, as it did not immediately trigger significant domestic production of ppe and ventilators. indeed, approximately one month earlier, on february 7, 2020, the u.s. government facilitated the shipment of approximately 17.8 tons of donated medical supplies—including masks, gowns, and respirators—to china.116 when asked by reporters about the proposed order during an oval office meeting with florida’s governor, ron desantis, trump stated: “we’re working with tyson . . . we’re going to sign an executive order today i believe, and that will solve any liability problems, and they had certain liability problems. . .”117 executive order 13,917 was issued with the stated goal of ensuring “a continued supply of protein for americans.”118 the order follows, in pertinent part: it is important that processors of beef, pork, and poultry (‘‘meat and poultry’’) in the food supply chain continue operating and fulfilling orders to ensure a continued supply of protein for americans. however, outbreaks of covid–19 among workers at some processing facilities have led to the reduction in some of those facilities’ production capacity. in addition, recent actions in some states have led to the complete closure of some large processing facilities. such actions may differ from or be inconsistent with interim guidance recently issued by the centers for disease control and prevention (cdc) of the department of health and human services and the occupational safety and health administration (osha) of the department of labor entitled ‘‘meat and poultry processing workers and employers’’ providing for the safe operation of such facilities. . . such closures threaten the continued functioning of the national meat and poultry supply chain, undermining critical infrastructure during the 115 see exec. order no. 13,909, 85 fed. reg. 16,227 (mar. 18, 2020). 116 see parker, supra note 17, at 87. see also bill mccarthy, yes, us shipped donated personal protective equipment to china in february, politifact (apr. 2, 2020), https://www.politifact.com/factchecks/2020/apr/02/facebook-posts/yesus-shipped-donated-personal-protective-equipme/. 117 see, e.g., morgan chalfant, trump to sign order compelling meat plants to stay open during pandemic, the hill (apr. 28, 2020), https://thehill.com/homenews/administration/495055-trump-order-compellingmeat-plants-stay-open-coronavirus-outbreak. 118 see exec. order no. 13,917, 85 fed. reg. 26,313 (apr. 28, 2020). 2025] lest we forget 1216 national emergency. . . accordingly, i find that meat and poultry in the food supply chain meet the criteria specified in section 101(b) of the act (50 u.s.c. 4511(b)). under the delegation of authority provided in this order, the secretary of agriculture shall take all appropriate action under that section to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the cdc and osha. . . .119 c. the impact of invocation president donald trump’s executive order 13,917 had a direct, tangible impact on american meat-packing plant re-openings, which coincided with a significant increase in worker illnesses and deaths from covid-19.120 on may 5, 2020, a week after trump issued executive order 13,917, the secretary of agriculture, sonny perdue, issued letters to state governors and executives of american meat companies directing them, pursuant to the order, to re-open meat-packing plants under guidelines issued by the cdc and osha121—which, according to various reports, were inconsistently enforced.122 perdue also directed that documentation be submitted to the usda only for meat-packing plants not in current operation, and threatened further executive action under the dpa if necessary.123 pertinent sections of sonny perdue’s letter to state governors follow: effective immediately, i have directed meat and poultry processors to utilize the guidance issued on sunday, april 26, 2020, by cdc and osha specific to the meat and poultry processing industry to implement practices and protocols for staying operational or resuming operations while safeguarding the health of the workers and the community. the u.s. department of agriculture (usda) has also directed meat and poultry 119 id. (emphasis added). 120 see supra note 99. 121 see news release, u.s. dep’t of labor, u.s. department of labor's osha and cdc issue interim guidance to protect workers in meatpacking and processing industries (apr. 26, 2020). 122 see infra part iii. 123 letter from secretary perdue to governors (may 5, 2020), https://www.usda.gov/sites/default/files/documents/governor-letters-covid.pdf. see also 50 u.s.c. § 4513 (2018) (violations of the defense production act (dpa), including failure to comply with its orders, may result in criminal penalties of up to a $10,000 fine or one year of imprisonment, or both). 1217 colum. j. race & l. [vol. 15:1193 processing plants currently closed and without a clear timetable for near-term reopening to submit to usda written documentation of their protocol, developed based on the cdc/osha guidance, and resume operations as soon as they are able after implementing the cdc/osha guidance for the protection of workers. . . further action under the executive order and the defense production act is under consideration and will be taken if necessary.124 in his letter to the executives of american meat companies, sonny perdue’s message was substantially the same as his letter to governors—but issued a sterner warning about potential future executive action that might be taken under the dpa: “again, i exhort you to do this; further action under the executive order and the defense production act is under consideration and will be taken if necessary.”125 sonny perdue’s letters worked as intended. on may 8, 2020, three days after sending them out, he announced that fourteen major meat-packing plants across the united states would be reopening— seven of which were owned by tyson foods.126 and on june 9, 2020, he announced, in effect, mission accomplished: american meat-packing plants were operating at levels exceeding 95% of their capacity from the prior year. in this june 9, 2020 announcement, sonny perdue “applauded the safe reopening of critical infrastructure meatpacking facilities across the united states,” “thank[ed] the patriotic and heroic meatpacking facility workers, the companies, and the local authorities for quickly getting their operations back up and running,” and credited president trump for “[taking] decisive action to ensure america’s producers and ranchers will be able to bring their product to market.”127 there was 124 see letter from secretary perdue to governors, supra note 123 (emphasis added). 125 letter from secretary perdue to stakeholders (may 5, 2020), https://www.usda.gov/sites/default/files/documents/stakeholder-letterscovid. pdf (emphasis added). perdue’s exhortation and threat of further legal action appears to be a veiled threat of invocation of section 4513 as a means to ensure that meat-processing facilities were re-opened and stayed open. see 50 u.s.c. § 4513 (2018) (failing to comply with orders made pursuant to the defense production act may result in criminal penalties of up to a $10,000 fine or one year of imprisonment, or both). 126 press release, u.s. dep’t of agric., america’s meatpacking facilities practicing safe reopening to ensure a stable food supply (may 8, 2020), https://www.usda.gov/media/press-releases/2020/05/08/americas-meatpackingfacilities-practicing-safe-reopening-ensure. 127 press release, u.s. dep’t of agric., america’s meatpacking facilities operating more than 95% of capacity compared to 2019 (june 9, 2020), 2025] lest we forget 1218 no mention in his june 9, 2020 announcement that reported cases of covid-19 among workers in american meat-packing plants had by then sky-rocketed to 26,151, with 90 workers reported dead.128 iii. the usda, osha, and covid-19 in meat-processing facilities as of december 11, 2020, there were 50,123 reported covid19 cases among workers in american meat-packing plants, and 255 deaths.129 thus, it should come as no surprise that neither the secretary of agriculture, sonny perdue, nor the secretary of labor, eugene scalia, took all appropriate action “to ensure that meat and poultry processors continue[d] operations consistent with the guidance for their operations jointly issued by the cdc and osha.”130 to be clear, both secretaries took affirmative steps to ensure the continuance of the operation of meat and poultry processors—but any “guidance” was, in large part, just that: guidance.131 in operation, president donald trump’s executive order 13,917 worked to re-open and keep open american meatpacking plants—despite inconsistent adherence to safety protocols—with the involvement of both perdue and scalia. particularly concerning, as will be shown, both department heads took actions following the issuance of executive order 13,917 that effectively weakened existing safety measures, including allowing increased production line speeds and substantially limiting osha inspections. thus, both federal agencies played a role in enabling the trump administration’s use of the dpa in a manner that emphasized keeping meat-packing plants profitable during the worst public health crisis in over 100 years, rather than prioritizing worker safety. the human cost of these decisions was severe. a. the usda’s implementation of executive order 13,917 the usda failed to implement its purported charge under executive order 13,917—specifically, the requirement to ensure https://www.usda.gov/media/press-releases/2020/06/09/americas-meatpackingfacilities-operating-more-95-capacity-compared. 128 leah douglas, mapping covid-19 outbreaks in the food system, food & env’t reporting network (apr. 22, 2020), https://thefern.org/2020/04/mappingcovid-19-in-meat-and-food-processing-plants/. 129 see id. 130 exec. order no. 13,917, 85 fed. reg. 26,313 (apr. 28, 2020). see generally ernesto dal bó, regulatory capture: a review, 22 oxford rev. econ. pol’y 203 (2006). 131 meat and poultry processing workers and employers: interim guidance from cdc and the occupational safety and health administration (osha), cdc (nov. 12, 2020). 1219 colum. j. race & l. [vol. 15:1193 that meat and poultry processors operate under the jointly issued cdc and osha guidance—and affirmatively took steps to contradict it.132 on may 15, 2020, for example—approximately a week after secretary of agriculture sonny perdue announced that fourteen meat-packing plants would be re-opening—democratic senators sent perdue a letter with questions and concerns regarding meat-packing plants re-opening apart from the joint guidance issued by osha and the cdc.133 their letter noted that, in a briefing with the senate agriculture, nutrition, and forestry committee, usda officials were unable to confirm whether the meat-packing plants that had reopened were complying with the joint guidance issued by osha and the cdc, but that they had said “they expected the plants to follow the cdc/osha guidance to the extent they can.”134 in other words, it appears that usda officials had all but given the industry a free pass on safety guidance. moreover, throughout the covid-19 pandemic, the usda’s food safety and inspection service (fsis) pressed for increases in line speeds in poultry plants—profitable alterations that serve to decrease worker protections and increase the likelihood of covid19 infections.135 in april, 2020, for example, during the first wave of the covid-19 pandemic, the fsis granted requests from 15 large poultry plants to increase the maximum line speeds on poultry production lines—some of whom are owned by tyson foods—from 140 to 175 birds per minute via a new waiver program.136 fsis privately promulgated fifteen new waivers “under the cover of darkness, with no notice to the public and no request for public comment.”137 in approximately half of these plants, ongoing covid-19 outbreaks were reported—with several of the plants reporting covid-19 outbreaks when the requests were first granted.138 additionally, while the waiver program itself was subject to ongoing litigation for violations of the administrative procedure act,139 the usda submitted a proposal to the white house office 132 see infra note 141. 133 letters from members of congress to secretary perdue (may 15, 2020), https://www.agriculture.senate.gov/imo/media/doc/20.05.15%20meat%20 processing%20oversight%20letter%20w%2029%20signatures.pdf. 134 id. (emphasis added). 135 shayla thompson & deborah berkowitz, usda allows poultry plants to raise line speeds, exacerbating risk of covid-19 outbreaks and injury, nat’l emp’t law project (june 17, 2020), https://www.nelp.org/publication/usdaallows-poultry-plants-raise-line-speeds-exacerbating-risk-covid-19-outbreaksinjury/. 136 id. 137 id. 138 id. 139 complaint for declaratory and injunctive relief at 2, united food & com. workers union, loc. no. 227 v. united states dep’t of agric., no. 1:20-cv-2045 (d.d.c. july 28, 2020). 2025] lest we forget 1220 of management and budget to permanently increase maximum line speeds to 175 birds per minute.140 the usda’s granting of line speed waivers and its advocacy for permanent increases in line speeds at poultry plants fundamentally upended executive order’s 13,917 purported requirement that the usda “ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the cdc and osha.”141 namely, by serving to decrease social distancing among employees at these plants, it directly contradicted the cdc and osha’s joint guidance that “workers should maintain at least six feet of distance from others at all times, including on breaks” and that “changes in production practices may be necessary in order to maintain appropriate distances among workers.”142 additionally, while the direct correlation between line speed increases and covid-19 infection rates is facially obvious, both the cdc and osha have made explicit statements to this effect.143 and indeed, as a sheer matter of numbers, there have been more covid19 infection outbreaks among the plants that have received the linespeed waivers, than those that have not.144 b. osha’s negligible response osha took a “hands-off” approach to regulating meat-packing plants during the covid-19 pandemic,145 notwithstanding its broad jurisdiction146 and purported mission “to ensure safe and healthful working conditions for working men and women by setting and enforcing standards.”147 on april 13, 2020, osha announced that 140 mike dorning & michael hirtzer, trump makes last push to speed up chicken lines despite pandemic, bloomberg politics (nov. 11, 2020), https://www.bloomberg.com/news/articles/2020-11-11/trump-makes-last-pushto-speed-up-chicken-lines-despite-pandemic. 141 see exec. order no. 13,917, 85 fed. reg. 26,313 (apr. 28, 2020). 142 see letters from members of congress to secretary perdue (may 15, 2020), https://www.agriculture.senate.gov/imo/media/doc/20.05.15%20meat%20 processing%20oversight%20letter%20w%2029%20signatures.pdf. 143 it should be readily apparent that increasing line speeds forces workers closer together, increasing infection risk; the cdc and osha recognized this connection. see, e.g., leah douglas, at poultry plants allowed to run faster processing lines, a greater risk of covid-19, food & env’t reporting network (sept. 10, 2020), https://thefern.org/ag_insider/at-poultry-plants-allowed-to-runfaster-processing-lines-a-greater-risk-of-covid-19/. 144 id. 145 why is osha awol? n.y. times (june 21, 2020), https://www.nytimes.com/2020/06/21/opinion/coronavirus-osha-worksafety.html. 146 see, e.g., 29 u.s.c. § 653(a) (2018). 147 luis corchado, tom devine, thad guyer, & jason zuckerman, whistleblower law 101: facing food industry retaliation, 2 am. u. labor & emp. l.f. 98, 102 n.10 (2011). 1221 colum. j. race & l. [vol. 15:1193 it would largely be limiting inspections for covid-19-related complaints and employer-reported illnesses to facilities “having high and very high exposure risk jobs, such as hospitals, emergency medical centers, and emergency response facilities.”148 osha provided no reasoned explanation for excluding meat-packing plants—facilities with some of the highest covid-19 infection rates in the country—from its inspection prioritization. this arbitrary-as-applied policy,149 combined with osha’s joint-cdc “guidance-only” approach to interim regulation of meat-packing plants,150 largely proved dispositive with respect to the negligible extent of its regulation of meat-packing plants for covid-19related safety breaches.151 for example, osha almost entirely failed to investigate complaints filed by workers for workplace safety violations152 and whistleblower retaliation complaints related to covid-19.153 moreover, fines that were issued for safety infractions were so miniscule as to completely remove their disincentivizing tendency toward wrongful conduct, and—to the extent that they signal precedent—actually incentivized wrongful conduct.154 osha’s obvious inaction with respect to regulation of 148 occupational safety and health admin., interim enforcement response plan for coronavirus disease 2019 (covid-19) (apr. 13, 2020), https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plancoronavirus-disease-2019-covid-19. 149 referring to the policy as arbitrary is arguably generous, especially given that the workforce in meat-packing plants primarily consisted of workers from marginalized communities. viewed in this context, osha’s exclusion of these plants raises legitimate questions as to whether its approach deliberately benefited industry profitability amidst escalating worker illness and death. see first amended complaint & demand for jury trial at 13, fernandez v. tyson foods, inc., no. 6:20-cv-02079-lrr-kem (n.d. iowa nov. 11, 2020) (alleging a 600% increase in tyson’s exports in 2020’s first quarter). 150 see supra note 131. 151 see, e.g., noam scheiber, osha criticized for lax regulation of meatpacking in pandemic, n.y. times (oct. 22, 2020), https://www.nytimes.com/2020/10/22/business/economy/osha-coronavirusmeat.html. 152 see, e.g., bernice yeung & michael grabell, they warned osha they were in “imminent danger” at the meat plant. now they’re suing the agency., propublica (july 23, 2020), https://www.propublica.org/article/they-warnedosha-they-were-in-imminent-danger-at-the-meat-plant-now-theyre-suing-theagency. 153 see, e.g., deborah berkowitz & shayla thompson, osha must protect covid whistleblowers who file retaliation complaints, nat’l emp’t law project (oct. 8, 2020), https://www.nelp.org/publication/osha-failed-protectwhistleblowers-filed-covid-retaliation-complaints/. 154 see, e.g., tom philpott, trump’s paltry meatpacking fine signals that “workers’ lives are worth less than pork shoulders”, mother jones (sept. 11, 2020), https://www.motherjones.com/food/2020/09/trumps-paltry-meatpackingfine-signals-that-workers-lives-are-worth-less-than-pork-shoulders/; patty nieberg, workers protest $15,000 covid-19 fine issued to jbs meat plant in greeley, the denver post (sept. 16, 2020), 2025] lest we forget 1222 the meat-packing plants (and other employers) during the covid19 pandemic increasingly drew scrutiny from media,155 democrats in congress,156 labor unions, and worker advocacy organizations.157 these parties continuously urged the federal agency to enforce its general duty clause, which requires that employers provide a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm,”158 as well as to issue an emergency temporary standard for infectious diseases, which would give mandatory rules for employers to follow rather than mere guidance.159 notwithstanding these pleas for help, osha obstinately refused to perform even the most basic functions of its duty—which increasingly resulted in litigation in federal courts.160 indeed, in the absence of meaningful federal enforcement, the plaintiffs’ bar stepped up and into the regulatory void by filing lawsuits on behalf of affected workers and their families, thereby playing a vital role in promoting accountability, worker safety, and public health.161 federal courts, however, were not receptive to litigation on behalf of employees endangered by the sars-cov-2 virus at their places of employment. the afl-cio, for example, filed an https://www.denverpost.com/2020/09/16/workers-protest-covid-fine-jbsgreeley/; kimberly kindy, more than 200 meat plant workers in the u.s. have died of covid-19. federal regulators just issued two modest fines., the washington post (sept. 13, 2020), https://www.washingtonpost.com/national/osha-covid-meat-plantfines/2020/09/13/1dca3e14-f395-11ea-bc45-e5d48ab44b9f_story.html. 155 see, e.g., noam scheiber, osha is under fire over its regulation of meatpacking plants., n.y. times (oct. 22, 2020), https://www.nytimes.com/2020/10/22/world/osha-is-under-fire-over-itsregulation-of-meatpacking-plants.html. 156 see letter from senators elizabeth warren and cory a. booker to assistant secretary of labor, loren sweatt (sept. 22, 2020), https://www.warren.senate.gov/imo/media/doc/letter%20from%20senators%20 warren,%20booker%20to%20osha%209-22-20.pdf. 157 see, e.g., an open letter calling for swift action towards workers’ and communities’ health and safety, heal food alliance (may 19, 2020), https://healfoodalliance.org/an-open-letter-calling-for-swift-action-towardsworkers-and-communities-health-and-safety/. 158 29 u.s.c. § 654 (2018). 159 see, e.g., urge osha to issue an emergency temporary standard for infectious diseases, afl-cio, https://actionnetwork.org/forms/covid-19-takeaction. 160 see, e.g., complaint and emergency petition for emergency mandamus relief, jane does i, ii, iii v. scalia, no. 3:20-cv-01260-mem (m.d. pa. july 22, 2020). 161 for scholarship exploring how the plaintiffs’ bar enforces accountability and safeguards democracy, see, e.g., alexandra d. lahav, in praise of litigation (2017); sean farhang, the litigation state: public regulation and private lawsuits in the u.s. (2010); carl t. bogus, why lawsuits are good for america: disciplined democracy, big business, and the common law (2001); howard m. erichson, doing good, doing well, 57 vand. l. rev. 2087 (2004). 1223 colum. j. race & l. [vol. 15:1193 emergency petition for a writ of mandamus in the u.s. court of appeals for the d.c. circuit to compel osha to issue an emergency temporary standard, in part on the basis that its refusal to do so “constitutes an abuse of agency discretion so blatant and ‘of such magnitude’ as to amount to a clear ‘abdication of statutory responsibility.’”162 the petition was denied, however, on the basis of “the unprecedented nature of the covid-19 pandemic,” “the regulatory tools that the osha has at its disposal to ensure that employers are maintaining hazard-free work environments,” and because “osha’s decision not to issue an ets is entitled to considerable deference.”163 in another action filed by the rural community workers alliance and three jane does in the u.s. district court for the western district of missouri for declaratory and injunctive relief pursuant to counts arising under state law (namely, public nuisance and breach of duty to provide a safe workplace),164 the western district of missouri elected to dismiss the complaint under the seldom-used primary-jurisdiction doctrine in order “to allow the occupational health and safety administration . . . to consider the issues raised by this case.”165 the usda “applauded” this latter decision, issuing the following statement on the usda’s government website a day after the court handed it down: this ruling affirms that osha is the primary entity that has authority over workers’ safety . . . since president trump issued his executive order last week to keep these critical facilities operating, usda has been working hand in hand with osha and the cdc to ensure meat processing facilities are abiding by federal guidelines. this ruling is directly in line with what the federal government has been calling for companies and communities to do in light of the president’s executive order. if we continue to work together, we can maintain the critical supply of meat and poultry for americans while also protecting worker health and safety.166 162 emergency petition for a writ of mandamus, and request for expedited briefing and disposition, in re afl-cio, no. 20-1158 (d.c. cir. may 18, 2020) (quoting pub. citizen health research grp. v. comm’r, food & drug admin., 740 f.2d 21, 32 (d.c. cir. 1984)). 163 in re afl-cio, no. 20-1158, 2020 wl 3125324. 164 see complaint, rural cmty. workers all. v. smithfield foods, inc., no. 5:20cv-06063-dgk (w.d. mo. apr. 23, 2020). 165 rural cmty. workers all. v. smithfield foods, inc., 459 f. supp. 3d 1228, 1233 (w.d. mo. 2020). 166 press release, u.s. dep’t of agric., usda applauds missouri court ruling on meat processing plants (may 6, 2020), https://www.usda.gov/media/press2025] lest we forget 1224 thus, despite osha’s statutory duty to protect workers, its failure to meaningfully regulate or enforce safety standards effectively rendered the agency complicit in enabling hazardous working conditions in meat-packing plants during the pandemic.167 iv. potential bases to challenge executive order 13,917 through executive order number 13,917, president donald trump appropriated the defense production act as a mechanism to mandate meat-packing plants’ continued operation while simultaneously shielding them from liability for worker illnesses and deaths in order to help keep them profitable during the worst public health crisis in over 100 years.168 in doing so, trump fundamentally subverted and distorted the essence of the defense production act, transforming the statute from its role in advancing the nation’s welfare into a commercial indemnity weapon of mass destruction.169 moreover, executive order 13,917, in addition to helping meat-packing plants deny workers’ compensation claims related to covid-19,170 was appropriated by private companies as a tool to deny wrongful death claims171 and subvert legitimate state public health orders that required meat-packing plants to shut down releases/2020/05/06/usda-applauds-missouri-court-ruling-meat-processingplants. 167 one might reasonably conclude, given the secretary’s record of regulatory enforcement—or lack thereof—that protecting marginalized workers was not among his chief concerns. see, e.g., noam scheiber, osha criticized for lax regulation during pandemic, n.y. times (oct. 22, 2020), https://www.nytimes.com/2020/10/22/business/economy/osha-coronavirusmeat.html. perhaps the apple does not fall far from the tree. see, e.g., hoffmann plastic compounds, inc. v. nlrb, 535 u.s. 137, 151 (2002) (holding that undocumented workers are not entitled to backpay remedies under federal labor law, despite unlawful termination). 168 see supra part ii. 169 id. see also catherine m.a. mccauliff, where’s the meat? lochner and the president’s executive order, 100 neb. l. rev. 210, 213 (2021) (“[t[he radical elimination of the slaughterhouse’s liability for unsafe conditions was unmistakably the point[.]”). 170 see, e.g., jacey fortin, after meat workers die of covid-19, families fight for compensation, n.y. times (oct. 6, 2020), https://www.nytimes.com/2020/10/ 06/business/coronavirus-meatpacking-plants-compensation.html; tom hals & tom polansek, majority of workers' compensation claims of meatpacking workers with covid-19 denied, including in minnesota, star tribune (sept. 29, 2020), https://www.startribune.com/majority-of-workers-compensation-claims-ofmeatpacking-workers-with-covid-19-denied-including-inminnesota/572579272/. 171 see, e.g., first amended complaint & demand for jury trial at 9, fernandez v. tyson foods, inc., no. 6: 20-cv-02079-lrr-kem (n.d. iowa nov. 11, 2020). 1225 colum. j. race & l. [vol. 15:1193 due to covid-19 outbreaks.172 as a matter of legality, morality, and public policy, executive order 13,917 should have been struck down. toward this end, apart from a finding that the usda and osha acted unlawfully in implementing executive order 13,917,173 there appear to be at least two viable bases whereby this might have been achieved in federal court.174 a. fifth amendment due process clause first, executive order 13,917 could have been challenged on the basis that it violates the fifth amendment to the u.s. constitution.175 it effectively requires workers—almost all of whom are ethnic minorities—to choose between either making a living and risking their lives, a dilemma that directly implicates the due process clause. by serving to preempt workers’ compensation, tort, and unemployment claims without notice and an opportunity to be heard, executive order 13,917 contravenes the fifth amendment’s mandate that no person shall “be deprived of life, liberty, or property without due process of law,”176 as well as the equal protection clause as incorporated against the federal government through the fifth amendment.177 a right to life has been recognized as fundamental by the eighth circuit,178 and the equal protection component of the fifth amendment’s due process clause prohibits racial discrimination through official conduct.179 because 172 see verified complaint and application for declaratory judgment and injunctive relief at 17–18, stampede meat, inc. v. grisham, no. 2:20-cv-01160mv-cg (d.n.m. nov. 6, 2020). 173 see, e.g., 5 u.s.c. § 706 (2018). 174 see, e.g., 28 u.s.c. § 2201(a) (2018) (“in a case of actual controversy within its jurisdiction . . . any court of the united states, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.”). 175 see, e.g., united states v. nixon, 418 u.s. 683, 703 (1974) (“[i]t is emphatically the province and duty of the judicial department to say what the law is.”) (quoting marbury v. madison, 1 cranch 137, 177 (1803)); ralls corp. v. comm. on foreign inv. in u.s., 758 f.3d 296, 313 (d.c. cir. 2014) (“[t]he judiciary is the ultimate interpreter of the constitution and, in most instances, claims alleging its violation will rightly be heard by the courts.”). 176 u.s. const. amend. v. 177 see bolling v. sharpe, 347 u.s. 497, 498–500 (1954). 178 landrum v. moats, 576 f.2d 1320, 1325 (8th cir. 1978). see also joshua herman, death denies due process: evaluating due process challenges to the federal death penalty act, 53 depaul l. rev. 1777 (2004); kevin m. barry, the death penalty and the fundamental right to life, 60 b.c. l. rev. 1545 (2019). 179 saget v. trump, 375 f. supp. 3d 280, 365 (e.d.n.y. 2019). see also yick wo v. hopkins, 118 u.s. 356, 373–74 (1886) (“though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public 2025] lest we forget 1226 procedural due process and substantive due process represent the more viable constitutional arguments under current jurisprudence, each will be addressed in turn. 1. procedural due process: deprivations of life, liberty, and property without notice and an opportunity to be heard a procedural due process challenge requires that the plaintiff be deprived of a protected interest in “life, liberty, or property”180 without adequate notice and a meaningful opportunity to be heard.181 in this case, executive order 13,917 implicated all three guarantees protected by the fifth amendment’s due process clause.182 specifically, workers impacted by the executive order had protected interests in continuing to live,183 liberty interests in avoiding unreasonable government-compelled exposure to deadly workplace conditions, and property interests in their workers’ compensation and tort claims.184 procedural due process protections are especially critical when deprivations involve matters of life or death, as they do here.185 recently, procedural due process protections specific to presidential actions under the defense production act (dpa) were clarified by the u.s. court of appeals for the d.c. circuit. in ralls corporation v. committee on foreign investment in the united states, the u.s. court of appeals for the d.c. circuit found that presidential action taken under the dpa requiring an energy holding company, ralls corporation, to divest its windfarm investments deprived it of protected property interests under the due process clause of the fifth amendment.186 specifically, the court held that “due process requires, at the least, that an affected party be informed authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.”). 180 u.s. const. amend. v. 181 singfield v. akron metro. hous. auth., 389 f.3d 555, 565 (6th cir. 2004) (“the fourteenth amendment’s guarantee of procedural due process assures that the deprivation of life, liberty, or property ‘be preceded by notice and opportunity for a hearing appropriate to the nature of the case.’”) (quoting cleveland bd. of educ. v. loudermill, 470 u.s. 532, 538 (1986)). 182 see supra note 180. 183 landrum v. moats, 576 f.2d 1320, 1325 (8th cir. 1978) (“the right to life is fundamental and is protected against unreasonable or unlawful takings by the procedural due process safeguards of the fifth and fourteenth amendments.”). 184 see logan v. zimmerman brush co., 455 u.s. 422, 437 (1982). 185 goldberg v. kelly, 397 u.s. 254, 264 (1970) (describing due process violation where “very means by which to live” are deprived without notice and a hearing). 186 see ralls corp., 758 f.3d at 319. 1227 colum. j. race & l. [vol. 15:1193 of the official action, be given access to the unclassified evidence on which the official actor relied and be afforded an opportunity to rebut that evidence.”187 here, executive order 13,917 deprived workers of their right to life, physical health, and state-law workers’ compensation and tort claims without offering even minimal notice or opportunity to contest the evidentiary grounds upon which the deprivations were based. thus, applying the logic of ralls, it should be just as feasible for a federal court to find that the fifth amendment prohibits an order under the dpa threatening workers’ interests in continuing to live and serving to preempt their state law tort and wage claims, as it does an order under the dpa serving to deprive an energy company of its state law interests in private property.188 that is, of course, assuming a system where the federal judiciary values the lives of workers as much as it does a private corporation’s property.189 moreover, it should be apparent that president trump’s finding that meat and poultry are “scarce and critical material[s] essential to the national defense”190 is insufficient justification for circumventing procedural due process guarantees. presidential discretion—especially in matters implicating national security—is not unlimited and must yield to fundamental procedural protections mandated by the u.s. constitution. the supreme court put it this way in kennedy v. mendoza–martinez: the imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental 187 id. at 319–20. 188 id. 189 the author cannot confidently make such an assertion. for scholarship exploring the judiciary’s tendency to prioritize corporate property interests over those of workers and individuals, see, e.g., elizabeth pollman, the supreme court and the pro-business paradox, 135 harv. l. rev. 220 (2021); joel rogers, divide and conquer: further reflections on the distinctive character of american labor laws, 1990 wis. l. rev. 1 (1990); henry hansmann, when does worker ownership work? esops, law firms, codetermination, and economic democracy, 99 yale l.j. 1749 (1990). 190 see exec. order no. 13,917, 85 fed. reg. 26,313 (apr. 28, 2020) (“i find that meat and poultry in the food supply chain meet the criteria specified in section 101(b) of the act (50 u.s.c. 4511(b)).”); 50 u.s.c. 4511(b) (“the powers granted in this section shall not be used to control the general distribution of any material in the civilian market unless the president finds (1) that such material is a scarce and critical material essential to the national defense, and (2) that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship.”). 2025] lest we forget 1228 constitutional guarantees which, it is feared, will inhibit governmental action.191 or, as stated even more aptly by the court in united states v. robel, “[i]t would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the nation worthwhile.”192 executive order 13,917 patently disregarded these core constitutional mandates; federal courts have both the authority and the constitutional obligation to ensure that procedural protections are upheld when governmental action infringes upon fundamental human rights.193 2. substantive due process: the fundamental right to life the united states constitution enshrines fundamental rights upon which the federal government must not infringe. some are enumerated explicitly, while others are implicit and exist within “penumbras, formed by emanations from those guarantees that help give them life and substance.”194 the right to life is expressly enumerated in the due process clause of the fifth amendment: “no person shall be . . . deprived of life, liberty, or property, without due process of law.”195 the eighth circuit has recognized this as a fundamental right, emphasizing that “[t]he right to life is fundamental and is protected against unreasonable or unlawful takings”196—a position widely affirmed by legal scholars.197 furthermore, the supreme court has emphasized that life itself is a core constitutionally protected interest. in cruzan v. director, missouri department of health, the court noted that “it cannot be 191 372 u.s. 144 at 165 (1963) (emphasis added). see also ex parte milligan, 71 u.s. 2, 120–21 (1866) (“the constitution of the united states is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”). 192 united states v. robel, 389 u.s. 258, 264 (1967). 193 denmark’s king christian x’s symbolic defiance of nazi oppression during world war ii offers a powerful reminder that leaders have moral and civic obligations to protect vulnerable populations during times of national crisis—no matter the cost. the author’s great-great-grandfather served as a guard for that king. see bo lidegaard, countrymen: the untold story of how denmark’s jews escaped the nazis (2013); carmen agra deedy & henri sørenson, the yellow star: the legend of king christian x of denmark (2000). 194 griswold v. connecticut, 381 u.s. 479, 484 (1965). 195 u.s. const. amend. v. 196 landrum v. moats, 576 f.2d 1320, 1325 (8th cir. 1978). 197 see, e.g., joshua herman, death denies due process: evaluating due process challenges to the federal death penalty act, 53 depaul l. rev. 1777 (2004); kevin m. barry, the death penalty and the fundamental right to life, 60 b.c. l. rev. 1545 (2019). 1229 colum. j. race & l. [vol. 15:1193 disputed that the due process clause protects an interest in life.”198 the court went further in tennessee v. garner, expressly recognizing “the suspect’s fundamental interest in his own life,” and yet deferring that the interest is so fundamental it “need not be elaborated upon.”199 while establishing a high bar against governmental conduct that arbitrarily or unjustifiably infringes upon it, the high court has nonetheless come up short of recognizing the right to life as one of those cherished rights subject to strict scrutiny.200 here, executive order 13,917 pigeon-holed meatpacking plant workers into a life-or-death, russian-roulette-style paradigm. workers were compelled to choose between maintaining their livelihoods at the risk of serious illness or death, or losing their jobs entirely. because many of these workers live paycheck-to-paycheck, the federal government effectively presented them with “an offer they couldn’t refuse.”201 the protective provisions within the order—requiring meat processors to operate “consistent with the guidance for their operations jointly issued by the cdc and osha”202—were, in practice, largely illusory.203 personal protective equipment shortages persisted, osha failed to rigorously enforce the mandated joint guidelines, and the usda actively facilitated increased line speeds, effectively reducing social distancing and exacerbating infection risks.204 substantive due process forbids such coercive state action where the government forces individuals into an impossible choice between exercising a fundamental right and economic survival.205 moreover, when evaluating substantive due process claims, courts inquire first into whether the governmental action infringes upon a fundamental right, and second, whether that infringement is narrowly tailored to serve a compelling governmental interest.206 here, assuming arguendo that continued meat production during the 198 497 u.s. 261, 281 (1990). 199 471 u.s. 1, 9 (1985). 200 see griswold, 381 u.s. at 488 (goldberg, j., concurring) (“[t]he framers of the constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.”) (emphasis added). 201 see n. brock enger, supra note 59, at 775–76. 202 see supra note 141. 203 see supra part iii. 204 see id. 205 see united states v. jackson, 390 u.s. 570, 583 (1968) (“congress cannot impose [a] penalty in a manner that needlessly penalizes the assertion of a constitutional right.”); simmons v. united states, 390 u.s. 377, 394 (1968) (“it [is] intolerable that one constitutional right should have to be surrendered in order to assert another”). 206 washington v. glucksberg, 521 u.s. 702, 721 (1997). 2025] lest we forget 1230 pandemic constituted a compelling interest, executive order 13,917—and particularly its implementation—was demonstrably not narrowly tailored to achieve this objective. that is, numerous alternative protein sources—including fish, dairy, legumes, and plant-based products—remained accessible throughout the pandemic. so, too, the stated governmental objective of “ensuring a continued supply of protein” arguably fails to constitute a compelling governmental interest.207 evidence suggests, instead, that this rationale was pretextual, designed primarily to ensure profitability rather than genuinely protect public welfare or national security.208 a pretextual or insincere government interest does not qualify as compelling under constitutional analysis.209 ultimately, by subjecting meatpacking employees to predictably lethal workplace conditions, executive order 13,917 exhibited the sort of deliberate indifference to human life contemplated by the supreme court in county of sacramento v. lewis, which opined that substantive due process is violated when government officials have a practical opportunity to deliberate—as they certainly did here.210 b. ultra vires doctrine under the ultra vires doctrine—literally meaning “beyond the powers”—governmental action may be invalidated if it exceeds statutory or constitutional authority. by issuing executive order 13,917 in order to protect the financial interests of large corporations such as tyson foods211 under the pretext of “ensuring a continued supply of protein for americans,”212 trump acted ultra vires— outside the scope of his authority under the defense production act,213 as well as any authority under article ii of the u.s. 207 see supra part ii.b. 208 see supra note 78 and accompanying text. 209 see shaw v. hunt, 517 u.s. 899, 932 (1996) (strict scrutiny cannot be avoided by “proffering pretextual . . . explanations”); united states v. virginia, 518 u.s. 515, 562 (1996) (the “proffered purpose” must be “the actual purpose”). 210 523 u.s. 833, 851 (1998) (“as the very term ‘deliberate indifference’ implies, the standard is sensibly employed only when actual deliberation is practical.”). 211 see, e.g., first amended complaint & demand for jury trial at 11, fernandez v. tyson foods, inc., no. 6: 20-cv-02079-lrr-kem (n.d. iowa nov. 11, 2020) (“high-level tyson executives began lobbying the white house for covid-19 related liability protections as early as march and continued their lobbying efforts throughout april. tyson officials dined at the white house and participated in several calls with president trump and vice president pence during march and april.”). 212 see id. at 13 (alleging a 600% increase in tyson’s exports in 2020’s first quarter); supra note 78 and accompanying text. 213 see, e.g., nixon v. fitzgerald, 457 u.s. 731, 756 (1982). see also am. fed'n of labor & cong. of indus. organizations v. kahn, 618 f.2d 784, 798–99 (d.c. cir. 1979) (mackinnon, j., dissenting) (“if congress did not intend to delegate [an] authority, or purported to delegate it without constitutionally sufficient standards 1231 colum. j. race & l. [vol. 15:1193 constitution.214 under article ii, presidential authority is limited to powers expressly granted by the constitution or implied from it; the president may not create law, seize private property, or override congress’s legislative determinations absent explicit constitutional or statutory authorization.215 moreover, as an unconstitutional exercise of presidential power, executive order 13,917 could be deemed to encroach on states’ power to regulate public health under the 10th amendment,216 as well as congress’s plenary authority to regulate interstate commerce.217 executive order 13,917 could thus be challenged to the extent that “when an executive acts ultra vires, courts are normally available to reestablish the limits on his authority.”218 indeed, “the supreme court has held on many occasions that officers of the executive branch of the government may be enjoined when their conduct is unauthorized by statute, exceeds the scope of constitutional authority, or is pursuant to unconstitutional enactment.”219 toward this end, executive order 13,917 could be likened to executive order 10,340 in youngstown sheet and tube v. sawyer, where president truman ordered that american steel mills be seized during the american-korean conflict, and the supreme court struck down the order as one of lawmaking, outside the scope of the then the president's action amounts to law-making in violation of article i of the constitution . . . the ambit of a delegated power is controlled by the purposes of the statute which delegates it.”). 214 see, e.g., youngstown sheet & tube co. v. sawyer, 343 u.s. 579, 587 (1952) (“in the framework of our constitution, the president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”). 215 id. at 585 (“the president’s power, if any, to issue the order must stem either from an act of congress or from the constitution itself.”). see also id. at 637, 659. cf. clinton v. city of new york, 524 u.s. 417, 427 (u.s. d.c.,1998) (a president violates article i “when he unilaterally cancel[s] provisions of duly enacted statutes”). 216 see, e.g., jacobson v. commonwealth of massachusetts, 197 u.s. 11, 25 (1905) (“[t]he police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”). an examination of potential tenth amendment claims is reserved for a future article. 217 see, e.g., united states v. darby, 312 u.s. 100, 115 (1941) (“whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on congress by the commerce clause.”). an analysis of claims involving congress’s authority under the dormant commerce clause is likewise reserved for future scholarship. 218 sierra club v. trump, 963 f.3d 874, 891 (9th cir. 2020). 219 youngstown sheet & tube co. v. sawyer, 103 f. supp. 569, 576 (d.d.c.), aff’d, 343 u.s. 579 (1952) (citing larson v. domestic & foreign commerce corp., 337 u.s. 682 (1949); land v. dollar, 330 u.s. 731 (1947); united states v. lee, 106 u.s. 196 (1882)). 2025] lest we forget 1232 president’s authority under article ii of the u.s. constitution.220 similar to the issue in youngstown, president trump ordering that meat-packing plants “continue operating and fulfilling orders to ensure a continued supply of protein for americans,”221 in effect, “requisitioned” the american meat-packing plants, taking “measures incompatible with the expressed or implied will of congress, [where] his power is at its lowest ebb”222—especially since congress allowed requisitions authority under the dpa to expire in 1953.223 furthermore, if a federal court were to strictly construe the textual provisions of the dpa and their statutory definitions relevant to executive order 13,917,224 it might similarly find that trump acted ultra vires. that is, trump’s required findings under 50 u.s.c. § 4511(b) are highly questionable. namely, his findings that meat and poultry were “scarce and critical material[s] essential to the national defense” and that “the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship.”225 trump’s characterization of the national meat and poultry supply chain as “critical infrastructure” is equally unavailing given that “critical infrastructure” refers to “any systems and assets, whether physical or cyber-based, so vital to the united states that the degradation or destruction of such systems and assets would have a debilitating impact on national security, including, but not limited to, national economic security and national public health or safety.”226 at the time executive order 13,917 was issued, there was little genuine evidence of a protein shortage severe enough to justify invoking such an extraordinary mandate; on the contrary—and not unlike the 17.8 tons of masks, gowns, and respirators donated to china227—meat producers substantially increased overseas meat exports during the pre-vaccine pandemic.228 220 youngstown, 343 u.s. at 583, 587. see also sierra club, 963 f.3d at 891 (“that sierra club has a cause of action to enjoin the unconstitutional actions at issue here is best illustrated by youngstown.”). 221 exec. order no. 13,917, 85 fed. reg. 26,313 (apr. 28, 2020). 222 youngstown, 343 u.s. at 637 (jackson, j., concurring). 223 michael h. cecire et al., cong. rsch., serv. r43767, the defense production act of 1950: history, authorities, and considerations for congress 2 (2020). see also supra part i. 224 see, e.g., acorn iron & supply co. v. bethlehem steel co., 96 f. supp. 481, 481 (e.d. pa. 1951) (“since the [dpa] imposes duties on the defendant in derogation of its common law right to sell or refuse to sell to anyone for any or no reason, the act must be strictly construed.”). 225 50 u.s.c. § 4511(b) (2018). 226 50 u.s.c. § 4554(2) (2018). 227 see supra notes 116. 228 see supra notes 84, 149. 1233 colum. j. race & l. [vol. 15:1193 given the foregoing, the federal judiciary would be justified in concluding that executive order 13,917 was an impermissible act of executive lawmaking encroaching on congress’s exclusive legislative powers under article i, thus violating fundamental principles of the separation of powers. as the supreme court duly noted in stark v. wickard, “[t]he responsibility of determining the limits of statutory grants of authority . . . is a judicial function entrusted to the courts by congress by the statutes establishing courts and marking their jurisdiction.”229 conclusion during his 2024 presidential campaign, donald trump asserted that the ongoing conflicts in ukraine and gaza “never would have happened” under his leadership.230 during his first presidency, the united states was at war with a different kind of adversary—a viral enemy, severe acute respiratory syndrome coronavirus 2 (sarscov-2). trump failed to win the 2020 election, in large part, due to his administration’s inadequate response to this viral belligerent.231 had the administration more effectively utilized the defense production act, the outcome may have been different—and applying trump’s own logic, perhaps the conflicts in ukraine and israel could have been prevented. this article provides a focused analysis of the defense production act, demonstrating the powers that could be leveraged during future pandemics in the united states. it illustrates that, with the notable exception of operation warp speed and a few other less noteworthy instances, the trump administration largely failed to fully utilize the defense production act when circumstances demanded it. moreover, with respect to executive order 13,917, the defense production act was invoked in a manner that ultimately harmed vulnerable americans. the purpose of this analysis is not to assign blame; rather, it aims to encourage public officials and attorneys to understand past shortcomings so that similar mistakes will not be repeated. future pandemics are inevitable, making it essential to appreciate both the potential and the risks inherent in the defense production act’s deployment. lest we forget, when invoked judiciously, this powerful legal instrument is uniquely capable of protecting public health, safeguarding worker rights, and affirming the nation’s commitment to valuing human life.232 229 321 u.s. 288, 310 (1944). 230 see supra note 2. 231 see supra note 3. 232 as aptly put by president franklin d. roosevelt, “the test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.” franklin d. roosevelt, second inaugural address (jan. 20, 1937). columbia journal of race and law forum vol. 12 june 2022 no. 1 a role for communiites in reasonable efforts to prevent removal shanta trivedi & matthew fraidin† ostensibly, the “child welfare system” exists to safeguard the well-being of minors. however, child welfare agencies often exercise their authority by removing children in the aftermath of family crises that less disruptive upstream interventions could have mitigated. children from lowincome families are over-represented in the child welfare system; they are removed too frequently from communities that have been systemically marginalized.  shanta trivedi is an assistant professor of law at the university of baltimore school of law and faculty director of the sayra and neil meyerhoff center for families, children & the courts. † matt fraidin is a professor at the university of the district of columbia david a. clarke school of law. 30 colum. j. race & l. f. [vol. 12:29 i. introduction........................................................................................ 31 ii. the failure of the reasonable efforts to prevent removal requirement ....................................................................................... 34 iii. the promise of a prevention-based approach .................................. 36 a. the haddon matrix..................................................................... 36 b. successful prevention campaigns .............................................. 37 c. preventing child removals: primary prevention efforts to build communities’ wealth and social cohesion ...................... 38 iv. conclusion .......................................................................................... 43 2022] a role for communities 31 in july 2014, debra harrell worked the day shift at mcdonald’s. a single mother, ms. harrell worked in a job that did not provide paid family leave and did not pay enough to cover childcare for her nine-year-old during the summer recess. when her daughter asked to play outside instead of sitting in the restaurant all day, ms. harrell gave her a cell phone and a key to their house before dropping her off at a local park.1 another parent, however, alerted police that the girl was there without supervision. several hours later, ms. harrell was arrested, and her daughter was sent to a group home, where she stayed for the next eighteen days.2 in a society that touts “family values” yet fails to provide the supports that families need to thrive, “debra harrell’s village fail[ed] her.”3 i. introduction ostensibly, the “child welfare system” exists to safeguard the wellbeing of minors.4 before a child is taken from the home and placed in state custody, federal law requires public agencies to make “reasonable efforts to prevent or eliminate the need” for removal.5 as the american academy of pediatrics has recognized, separating a child from their family inflicts profound trauma that can negatively impact that child’s mental health— often irreparably.6 indeed, the term “prevention” appears frequently throughout numerous federal child welfare statutes enacted since the 1970’s.7 yet state child protective services (“cps”) rarely take meaningful preventative action before ordering a child’s removal; despite a theoretical commitment to “prevention,” these agencies often exercise their authority by removing a child in the aftermath of a real or perceived family crisis that could have been mitigated by far less disruptive upstream interventions. although state laws tend to limit child removals only to those cases involving imminent danger to the child,8 it is well-established that children from low-income families are dramatically overrepresented in the child 1 chris branch, an important conversation about the mom arrested for leaving her kids at the park, huff. post (july 16, 2014), https://www.huffpost.com/entry/singlemom-jail-child-unattended-park_n_5592799 [https://perma.cc/f2z6-8jln]. 2 anndee hochman, in defense of a ‘bad mother’: debra harrell’s village fails her, whyy (july 28, 2014), https://whyy.org/articles/in-defense-of-a-bad-mother-debra-harrellsvillage-fails-her/ [https://perma.cc/f2z6-8jln]. 3 id. 4 child. bureau, u.s. dep’t of health & hum. servs., how the child welfare system works 2 (oct. 2020), www.childwelfare.gov/pubpdfs/cpswork.pdf [https://perma.cc/ nzl5-33l7]. 5 adoption and safe families act, 42 u.s.c. § 671(a)(15)(b)(i) (1997). 6 press release, colleen kraft, president, am. acad. of pediatrics, aap statement opposing separation of children and parents at the border (may 8, 2018) [hereinafter kraft, aap statement], https://web.archive.org/web/20200108215150/https://www.aap.org/en-us// about-the-aap/aap-pressroom/pages/statementopposingseparationofchildrenand parents.aspx. 7 see generally child. bureau, u.s. dep’t of health & hum. servs., major federal legislation concerned with child protection, child welfare, and adoption (2019), https://www.childwelfare.gov/pubpdfs/majorfedlegis.pdf [https://perma. cc/qc89-4l6t]. 8 see, e.g., n.y. fam. ct. act §§ 1027–1028 (mckinney 2018). 32 colum. j. race & l. f. [vol. 12:29 welfare system.9 neglect-based removals—which accounted for 74.9% of all removals in 2019—illustrate a “catch-all” and vague classification used to take children from the home despite having experienced no harm or risk of harm.10 this data thus highlights the biggest risk for family unity among low-income households: the government’s bias in conflating poverty and neglect.11 many of the conditions cited when state workers remove children from the home could easily have been addressed prior to the emergence of a crisis, through the types of services that the states could and should provide. children from communities that have been systemically marginalized are frequently removed due to homelessness, a lack of heat, food shortage, or in the case of debra harrell’s daughter, inadequate supervision.12 other children are removed because cps conflates a parent’s inability to afford health care with intentional deprivation.13 multiple studies demonstrate that thirty percent of foster children could be reunified with their parents if their parents had stable and affordable housing.14 additionally, black parents are more likely to be investigated by cps,15 and once investigated, are more likely to have their children removed.16 an astounding fifty-three percent of black children in america will have had contact with the child welfare system in their lifetimes.17 thus, the combination of racial bias with the conflation of poverty and neglect by child welfare actors means that when parents are both poor and black, their children are at extremely high risk of removal.18 but given the enormous federal budget allocated to the “child welfare” or family 9 kelley fong, child welfare involvement and contexts of poverty: the role of parental adversities, social networks, and social services, 72 child. & youth servs. rev. 5, 5 (jan. 2017). 10 child. bureau, u.s. dep’t of health & hum. servs., child maltreatment 2019, at 90 (2019), https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2019.pdf [https://perma.cc/u7ab-hz38]. 11 jerry milner & david kelly, it’s time to stop confusing poverty with neglect, imprint (jan. 17, 2010), https://imprintnews.org/child-welfare-2/time-for-child-welfaresystem-to-stop-confusing-poverty-with-neglect/40222 [https://perma.cc/x4tu-g8lf]. 12 id. 13 larissa macfarquhar, when should a child be taken from his parents?, new yorker (aug. 7, 2017), https://www.newyorker.com/magazine/2017/08/07/when-should-achild-be-taken-from-his-parents [https://perma.cc/86pf-krll]. 14 see, e.g., deborah s. harburger & ruth anne white, reunifying families, cutting costs: housing–child welfare partnerships for permanent supportive housing, 83 child welfare 493, 501 (2004); d.c. child & fam. servs. agency, annual public report 2–3 (2008) (stating that thirty-four children were removed in 2008 due to “inadequate housing”); corey s. shdaimah, “cps is not a housing agency”; housing is a cps problem: towards a definition and typology of housing problems in child welfare cases, 31 child. & youth servs. rev. 211, 213 (2009). 15 frank edwards, family surveillance: police and the reporting of child abuse and neglect, 5 rsf j. soc. sciences 50, 51–52 (2019). 16 is racial bias still a problem in child welfare? mst servs. (june 12, 2019), https://info.mstservices.com/blog/racial-bias-problem-child-welfare [perma.cc/7er9-9mpl]. 17 neil schoenherr, 1 in 3 children investigated for abuse/neglect by 18, wash. u. st. louis newsroom (dec. 20, 2016), https://source.wustl.edu/2016/12/one-third-uschildren-reported-investigated-child-abuse-neglect-age-18/ [https://perma.cc/cu2x-j393]. 18 dorothy roberts & lisa sangoi, black families matter: how the child welfare system punishes poor families of color, appeal (mar. 26, 2018), https://theappeal.org/blackfamilies-matter-how-the-child-welfare-system-punishes-poor-families-of-color [https://perma.cc/zv3d-tp8z]. 2022] a role for communities 33 regulation system,19 “the disturbingly large number of poverty-related family separations that black families experience are simply unnecessary.”20 as one long-time attorney for parents in family regulation proceedings put it, “[t]he problem is not that child services fails to remove enough children. it’s that the agency has not been equipped to address the daily manifestations of economic and racial inequality. instead, it is designed to treat structural failings as the personal flaws of low-income parents.”21 notwithstanding the legal requirement that public agencies make “reasonable efforts to prevent or eliminate the need” for removal,22 foster care systems in states across the country are filled with children who did not need to be removed and who suffer greater harm from being removed than they would if they had been allowed to stay at home.23 the “reasonable efforts to prevent removal” requirement has failed to prevent unnecessary removals because current governmental efforts to “prevent” children’s removal from their families are usually last-minute, crisis-driven, unrealistic, and minimal: a mother in crisis is given a list of substance abuse treatment facilities; or is placed on a waiting list for mental health services; or is handed a bag of groceries.24 these measures offer too little, come too late, and are not consistent with decades of experience in other fields in which social ills have been prevented successfully. effective prevention of any social ill requires actions intended to prevent the appearance of the problem. these actions, called “primary prevention,” are taken long before the actualization of the harmful event sought to be avoided, in an effort to minimize or eliminate risk of the event’s occurrence.25 reasonable measures to “prevent or eliminate the need” for child removal would help children and families upstream, when 19 cong. rsch. serv., if10590, child welfare: purposes, federal programs and funding 1 (june 30, 2020). 20 children’s rights, fighting institutional racism at the front end of child welfare systems: a call to action 4 (may 15, 2021), www.childrensrights.org/wpcontent/uploads/2021/05/childrens-rights-2021-call-to-action-report.pdf [https://perma.cc/a2r3-5v3m]. 21 emma s. ketteringham, live in a poor neighborhood? better be a perfect parent, n.y. times (aug. 22, 2017), https://www.nytimes.com/2017/08/22/opinion/poor-neighbor hoods-black-parents-child-services.html [perma.cc/9etc-8r7l]. 22 adoption and safe families act, 42 u.s.c. § 671(a)(15)(b)(i) (1997). 23 see, e.g., vivek s. sankaran & christopher church, easy come, easy go: the plight of children who spend less than thirty days in foster care, 19 u. pa. j.l. & soc. change 207, 216 (2016) (“[d]espite this clear legal framework and the sound research concerning the trauma resulting from removal and placement in foster care, each year, juvenile courts sanction the removals of roughly 25,000 children whose complete foster care episode is thirty days or less.”). 24 cf. colo. rev. stat. § 19-1-103(89); del. code ann. tit. 29, § 9003 (“[family] preservation services will be provided to those families whose children are at imminent risk of out-of-home placement when it is determined that out-of-home placement can be avoided. . . .”) (emphasis added). 25 see generally william m. haddon, jr., the changing approach to the epidemiology, prevention, and amelioration of trauma: the transition to approaches etiologically rather than descriptively based, 58 am. j. pub. health & nation’s health 1431 (1968) [hereinafter haddon, changing approach] (discussing the harm prevention literature’s gradual recognition and preference of long-term mitigative approaches). 34 colum. j. race & l. f. [vol. 12:29 intervention offers a greater return on investment for all stakeholders. remedial efforts undertaken only after problems have emerged are doomed to failure and thus are not reasonably calculated to prevent or eliminate the need for removals. because so many children are removed unnecessarily due to poverty, primary prevention efforts focused on building economic stability and social cohesion should be made in underserved communities. building family and community wealth could undergird the local support networks so crucial to child and family well-being. the failure of states thus far to meaningfully address poverty has resulted in thousands of unnecessary child removals, primarily from low-income and other marginalized families.26 accordingly, states should not be found to have satisfied their legal obligation to act reasonably in trying to prevent the child’s removal unless they have taken certain prophylactic steps. applying this “reasonable efforts” provision correctly will lead to fewer child removals, because communities—especially communities of color—will be stronger. this piece argues that prevention of child removal must include efforts to create and fund anticipatory, rather than reactive, measures by the state that build the wealth and cohesion of communities.27 strong communities prevent social problems—like child removals—because strong communities have layers of social and economic insulation that prevent the need for removal from arising at all. living in a community marked by interpersonal cohesion and a baseline of necessary resources and infrastructure limits the stresses and other tangible consequences of poverty.28 strong communities also prevent removals because if a problem arises in a family, the family has a broad support network to which it may turn, potentially obviating a need for government intervention. wisdom from prevention-based interventions in other contexts, and the requirement that state agencies must draw on community strengths, will empower communities to support families and ultimately lead to fewer removals. ii. the failure of the reasonable efforts to prevent removal requirement under federal law, states are entitled to reimbursement for the costs incurred in keeping a child in foster care, only if the state makes “reasonable efforts . . . to preserve . . . families prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home.”29 first included in the 1980 adoption assistance 26 see generally children’s rights, fighting institutional racism, supra note 20. 27 we are not the first to suggest this approach. see, e.g., child. bureau, u.s. dep’t of health & hum. servs., improving child welfare through primary prevention, children’s bureau express, https://cbexpress.acf.hhs.gov/index.cfm?event=website.view articles&issueid=202&sectionid=1&articleid=5258 [https://perma.cc/s4fj-nvlz] (discussing dr. jerry milner’s suggestions to keep children out of foster care). 28 see, e.g., robin j. kimbrough-melton & gary b. melton, “someone will notice, and someone will care”: how to build strong communities for children, 41 child abuse & neglect 67, 68–70 (2015). 29 adoption and safe families act, 42 u.s.c. § 671(a)(15)(b)(i) (2021). 2022] a role for communities 35 and child welfare act (“aacwa”),30 this requirement was incorporated into the 1997 adoption and safe families act (“asfa”).31 according to the january 25, 2000 federal register setting forth regulations on states’ compliance, asfa “seeks to provide states with the necessary tools and incentives to achieve the original goals of [the aacwa]: safety; permanency; and child and family well-being.”32 accordingly, regulations promulgated in the implementation of asfa require that each state “make reasonable efforts to maintain the family unit and prevent the unnecessary removal of a child from his/her home, as long as the child's safety is assured.”33 there is little legislative, administrative, or judicial guidance at the federal level as to what constitutes “reasonable efforts” to prevent child removal.34 similarly, while every state has promulgated a plan and enacted local statutes requiring that reasonable efforts be made to avoid removal (and placement), there is considerable variance in how such requirements are interpreted.35 as a result, state policies focus on the emergency, crisis-driven needs of children in immediate danger or at imminent risk of removal from their families and placement in foster care. colorado, for example, requires that services be provided to children “at imminent risk of out of home placement”36; unfortunately, these “services” are limited to a boilerplate menu of last-minute parenting classes and drug testing facilities rather than meaningful assistance in addressing a specific family’s underlying challenges.37 moreover, the state’s assistance is only offered once a family is already in crisis, when even robust interventions face long odds. notwithstanding these perfunctory and impersonal family services, courts typically find that the state has made sufficient efforts to prevent a child’s removal.38 judge leonard edwards says of his colleagues, “[s]ome judges understand their responsibility but are unwilling to exercise their power and rule on social service failures.”39 further, many judges are 30 adoption assistance and child welfare act of 1980, 42 u.s.c. § 622(b)(8)(a)(iii)(i) (2018). 31 adoption and safe families act of 1997, pub. l. no. 105-89, 111 stat. 2115, 2116 (1997). 32 title vi-e foster care eligibility reviews and child and family services state plan reviews, 65 fed. reg. 4020, 4020 (jan. 25, 2000) (to be codified at 45 c.f.r. pts. 1355– 57) (emphasis added). 33 45 c.f.r. § 1356.21(b). 34 alice c. shotton, making reasonable efforts in child abuse and neglect cases: ten years later, 26 cal. w.l. rev. 223, 225 (1990). 35 see, e.g., jeanne m. kaiser, victimized twice: the reasonable efforts requirement in child protection cases when parents have a mental illness, 11 whittier j. child & fam. advoc. 3, 15–16 (2011). 36 colo. rev. stat. § 19-1-103(114) (emphasis added). 37 see, e.g., kaiser, supra note 35, at 26 (“[a] stock requirement of service plans for parents involved with c[hild] w[elfare] a[gencie]s is participation in a parenting group.”). 38 see generally j. leonard p. edwards, improving implementation of the federal adoption assistance and child welfare act of 1980, 45 juv. & fam. ct. j. 3 (1994); see also shanta trivedi, the harm of child removal, 43 n.y.u. rev. l & soc. change 523, 577 (2019) (“[one study] showed that over 90 percent of judges rarely or never made a noreasonable-efforts finding and 40 percent had made reasonable efforts findings even when they believed that the agency had not, in fact, made those efforts.”). 39 see edwards, supra note 38, at 4. 36 colum. j. race & l. f. [vol. 12:29 worried about making a finding of no reasonable efforts because they know it will affect federal funding.40 on the other hand, if the court finds that reasonable efforts to prevent removal (“repr”) were made, the state is entitled to some federal reimbursement of the costs of the child’s stay in foster care.41 thus in most states, the consequence of a finding that reprs were not made is the state’s loss of the reimbursement. as a result of the failure of judges to enforce the “reasonable efforts to prevent removal” requirement, thousands of children whose removals could have been prevented were taken from their families. for example, scholars vivek sankaran and christopher church found that in one year, 25,000 children who were removed from their families left foster care in thirty days.42 the average child spent six days in foster care, and seventyfive percent were back home within two weeks.43 moreover, seventy-six percent of these children went back to the very homes from which they were removed.44 thus, prevention of child removals has been ineffective. efforts to prevent other social ills, however, such as automobile accidents and gun violence, offer promise and lessons that can be applied in the field of child welfare. iii. the promise of a prevention-based approach a. the haddon matrix the most widely used framework in the field of prevention is the haddon matrix, developed by william haddon after researching how best to prevent auto accidents and how best to minimize serious injury if an accident could not be prevented.45 the haddon matrix distinguishes between efforts designed to avoid an accident in the first place (primary prevention), those designed to reduce the severity of trauma during an accident (secondary prevention), and those designed to provide treatment for injuries after an accident (tertiary prevention).46 according to haddon, there are three stages to the injury process: a pre-event phase, an event phase, and a post-event phase.47 haddon’s research identified “driver, vehicle, and environmental factors before, during, and after collisions to minimize injuries and their severity.”48 each 40 nat’l council of juv. & fam. ct. judges, nevada court improvement project re-assessment final report 48 (2005). 41 id. 42 sankaran & church, supra note 23, at 218. 43 id. 44 id. 45 see generally william m. haddon, jr., editorial, on the escape of tigers: an ecologic note, 60 am. j. pub. health & nation’s health 2229 (1970) [hereinafter haddon, on the escape of tigers]. 46 daniel j. barnett et al., the application of the haddon matrix to public health readiness and response planning, 113 env’t health persps. 561, 561 (2005); see also larry cohen & susan swift, the spectrum of prevention: developing a comprehensive approach to injury prevention, 5 inj. prevention 203, 203 (1999) (citing haddon, supra note 45, at 2229–34). 47 see haddon, on the escape of tigers, supra note 45, at 2230–33. 48 l.s. robertson, guest editorial, groundless attack on an uncommon man: william haddon, jr, md, 7 inj. prevention 260, 260 (2001). 2022] a role for communities 37 stage requires a different intervention strategy, and a variety of techniques may be necessary to maximize the effect of each stage.49 the emphasis at the pre-event stage is placed on primary prevention, ideally eliminating hazardous conditions and insulating individuals from harmful elements.50 successful secondary prevention, meanwhile, should incorporate safeguards aimed at limiting damage once a harmful event is underway.51 finally, post-event, tertiary preventions focus on providing treatment and rehabilitation to the injured or vulnerable party.52 b. successful prevention campaigns the value of haddon’s concept of pre-event intervention can be seen in non-automobile contexts. one such example is violence intervention programs. in these initiatives, trusted members of the community serve as messengers to intervene in conflict before it leads to violence.53 over twenty years ago, cure violence global (“cvg”) adopted a public health approach to interrupting gun violence by using trusted community members to mediate conflict and promote healthier behaviors among individuals at highest risk.54 this program was replicated all over the world and led to a reduction in violence of up to ninety percent in some cases.55 further, the program had other positive effects on the community such as better education and employment outcomes, improved parenting, and an overall change in community norms surrounding violence.56 in baltimore’s “safe streets” program, the three-pronged publichealth approach identifies those at high risk of engaging in violence, intervenes in conflict with mediation prior to escalation into violence and finally, changes the community narrative surrounding violence and the acceptance thereof.57 safe streets “violence interrupters” recognize the value of being in the community, canvassing daily and building relationships with the most vulnerable. additionally, the organization hosted community events such as basketball tournaments and movie nights, provided essentials such as diapers and shoes to community members, and partnered with other organizations to provide services such 49 see nicole s. bell et al., u.s. army rsch. inst. of env’t med., injury control part ii: strategies for prevention 9 (jan. 1999), https://apps.dtic.mil/ dtic/tr/fulltext/u2/a372985.pdf [https://perma.cc/7jnv-d9ug] (summarizing and analyzing the haddon matrix). 50 id. at 11. 51 id. 52 id. 53 fact sheet, white house, more details on the biden-⁠harris administration’s investments in community violence interventions (apr. 7, 2021) [hereinafter white house fact sheet], https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/07/fact-sheetmore-details-on-the-biden-harris-administrations-investments-in-community-violenceinterventions/ [https://perma.cc/g48r-tcf6]. 54 cure violence global, the evidence of effectiveness 4 (aug. 2021), https://cvg.org/wp-content/uploads/2021/09/cure-violence-evidence-summary.pdf [https://perma.cc/2dyf-lbnv]. 55 id. 56 id. 57 christianna mccausland, don’t take it outside, baltimore mag., https://www.baltimoremagazine.com/section/gamechangers/safe-streets-baltimore-endingcity-violence [https://perma.cc/2cae-urpe]. 38 colum. j. race & l. f. [vol. 12:29 as job training and housing.58 finally, some violence interrupters visited victims of gun violence in the hospital in an effort to reduce retaliatory violence and to increase the likelihood that they will follow up on medical care.59 these combined efforts resulted in community buy-in and a hugely positive response. after safe streets’ implementation, the area it serviced went twenty-three months without a homicide.60 the program was not perfect, as primary prevention cannot completely eliminate the negative results it seeks to avoid.61 overall, however, the program’s eight zones realized significant decreases in shootings and homicides than neighborhoods that did not implement it.62 in recognition of the positive impact of evidence-based, public health approaches to gun violence, the biden administration recently directed significant federal funding towards a series of community violence intervention (“cvi”) programs.63 importantly, the government took a broad-based approach to intervention from jobs programs providing at-risk individuals with skills necessary for employment, to services specifically targeted towards addressing the risk of children’s exposure to violence, to micro-grants for innovative community policing strategies.64 these programs involve substantial efforts in the “pre-event” stage—prior to any occurrence of the phenomenon sought to be prevented. for communities that suffer the disproportionate impact and trauma of gun violence, anything but primary prevention is too late.65 c. preventing child removals: primary prevention efforts to build communities’ wealth and social cohesion currently, the family regulation system concentrates its efforts at the crisis event itself and the post-crisis period. for example, in ms. harrell’s case, the event was the moment that her daughter was alone at a park due to ms. harrell’s inability to afford childcare.66 the child welfare system therefore intervened to remove the child, post-event.67 the promise of haddon’s research has been realized in a limited number of initiatives which have demonstrated that child removals can be prevented by primary prevention efforts. in the context of child welfare, 58 id. 59 id. 60 id. 61 shelly orman, three baltimore safe streets workers killed over past year, fox baltimore (jan. 23, 2022), https://foxbaltimore.com/news/local/three-baltimore-safestreets-workers-killed-over-past-year [https://perma.cc/x4cj-n4rz]. 62 id. 63 white house fact sheet, supra note 53. 64 id. 65 everytown rsch. & pol’y, invisible wounds: gun violence and community trauma among black americans, everytown for gun safety & support fund (may 27, 2021), https://everytownresearch.org/report/invisible-wounds-gun-violence-and-communitytrauma-among-black-americans/#conclusion [https://perma.cc/smf9-sam9]. 66 see supra notes 1–3 and accompanying text; see also jessica grose, parents are now getting arrested for letting their kids go to the park alone, slate (july 15, 2014), https://slate.com/human-interest/2014/07/debra-harrell-arrested-for-letting-her-9-year-olddaughter-go-to-the-park-alone.html [https://perma.cc/tp8b-jl95]. 67 id. 2022] a role for communities 39 these primary prevention efforts have been directed toward building wealth and strengthening communities. for example, universal basic income programs are an example demonstrating how even a small amount of money can lead to a dramatic change in circumstance for many families. in stockton, california, lowincome residents were given $500 a month for two years, no-stringsattached.68 in addition to improving “participants’ job prospects, financial stability and overall well-being,” the program “alleviated financial strain across fragile networks and generated more time for relationships.”69 the recent child tax credit (“ctc”) also demonstrates how unconditional financial support can allow low-income families to thrive. one study showed that the majority of the families who received the ctc used the money to pay their bills, pay their housing costs, and buy food.70 a large percentage also used the money for child-related costs including school supplies and childcare.71 programs such as these that provide poor families with more income to meet basic needs can result in lower levels of contact with child protective services.72 at the most basic level, states who took advantage of the option to expand medicaid coverage in the affordable care act saw a decline in “child neglect” while the states who did not saw an increase.73 another study found that increasing the earned income tax credit by only $1,000 reduced the likelihood of a child protective investigation by seven to ten percent.74 recently, research showed that an 11.3% drop in substantiated cases of child maltreatment was attributed to the introduction of a single additional store that accepts supplemental nutrition assistance program (“snap”) benefits in the most sparsely populated areas of connecticut.75 similar studies found that measures such as increasing the minimum wage and access to medicaid and preventing evictions led to reduced child welfare intervention and to improved child and family well-being.76 ultimately, however, money alone will not prevent children from being taken unnecessarily from their families. resources need to be 68 rachel treisman, california program giving $500 no-strings-attached stipends pays off, study finds, npr (mar. 4, 2021), https://www.npr.org/2021/03/04/973653719/ california-program-giving-500-no-strings-attached-stipends-pays-off-study-finds [https://perma.cc/wcl7-myye]. 69 id. 70 mara ostfeld & jared wadley, child tax credit providing critical help, but not reaching more than 1 in 10 eligible families, u. of mich.: poverty sols. (oct. 6, 2021), https://poverty.umich.edu/2021/10/06/child-tax-credit-providing-critical-help-but-notreaching-more-than-1-in-10-eligible-families/ [https://perma.cc/3dfx-v7t9]. 71 id. 72 id. 73 richard wexler, want to prevent child abuse? behold the transformative power of cash, youth today (aug. 14, 2019), https://youthtoday.org/2019/08/want-to-preventchild-abuse-behold-the-transformative-power-of-cash/ [https://perma.cc/49qh-y325]. 74 id. 75 georgia tech study finds more snap retailers in rural areas lowers rates of child maltreatment, georgia tech. ivan allen coll. of liberal arts (may 19, 2021), https://iac.gatech.edu/news/item/647589/georgia-tech-study-finds-more-snap-retailersrural-areas-lowers-rates-child [https://perma.cc/xf4f-6qu2]. 76 id. 40 colum. j. race & l. f. [vol. 12:29 combined with non-punitive aid to ensure that families will truly be able to thrive. several social support programs have demonstrated success. in south carolina, dr. gary melton developed an initiative called strong communities for children, which eliminated the need for government assistance or intervention. the ultimate goal of this program was to prevent child abuse and neglect by strengthening children’s communities.77 in this initiative “[a]ll are guided by the principle that people shouldn’t have to ask [for help]—that help should be built into community settings in a manner that is ‘natural,’ responsive, and non-stigmatizing” in an effort to create normative change in people’s perceptions and beliefs about other families.78 strong communities used volunteer resources and existing community facilities, like churches, community centers, schools, and libraries to (a) connect systematically with families of very young children, (b) provide activities to help parents build social support networks, and (c) provide or arrange direct support for families in need.79 the kind of services that developed included parents’ nights out; play groups; family activities; extra well-care visits focused on family support; and chats with family advocates. the services were designed to be universally available to families of young children in the community, and both to provide direct assistance and to offer ways for families to make connections with one another in a way that promoted new norms of mutual assistance.80 these are the types of activities that build cohesive and trusting communities, providing a safe space for families to address concerns without fear about becoming system-involved. government intervention never becomes necessary. in strong communities, community outreach workers take a twofold approach: 1) explaining the goal of the initiative to draw in community members and organizations to help families and create opportunities to incorporate the ideals of the initiative into their day-today lives; and 2) using the volunteers that they have mobilized to deliver services informally but reliably within the cornerstones of the community such as churches and parks.81 crucially, the outreach workers are not bound by a “cookbook” of strategies in the way that caseworkers tend to be in our existing system. outreach workers may “use their judgment and knowledge of the community, its culture, and its assets to design effective strategies to mobilize residents and community organizations.”82 creativity is encouraged. the workers are guided by principles taken from research about the factors that most affect children’s well-being.83 77 see melton & melton, supra note 28, at 67. 78 id. 79 id. at 69. 80 id. 81 id. 82 id. at 70. 83 id. 2022] a role for communities 41 further, and crucially, the system cannot rely on the “bankrupt policy” of mandated reporting.84 mandated reporting creates distrust amongst neighbors, thereby undermining the goal of a cohesive community.85 lack of formal reporting requirements, and the ability to represent to clients that they may speak with the promise of absolute confidentiality and without the threat of child welfare intervention, allows outreach workers to build trust with the families they are serving.86 in addition, family activity centers were developed as places for social interaction and community-building so that community members could know—and help—when their neighbors needed assistance.87 this was combined with multi-faceted family resource centers which provided both formal and informal services such as a health center and a club for immigrant latinx families.88 participation in these programs had tremendous impacts on families: parenting stress went down, and parents’ perception of their own parenting went up. neighbors’ perception of others’ parenting went up as well. most relevantly, rates of child abuse and maltreatment went down.89 a similar project in washington state, the king county blended funding project (“the project”), emerged “to meet the needs of children who had experienced years of failure in the mental health, child welfare, education and juvenile justice systems.”90 its goal was to provide a supportive community for parents to take on leadership roles and act as “parent partners” to reach out to engage other families.91 social opportunities existed for all participating families to build community bonds and trust.92 thus, families had people to turn to in times of crisis.93 a key element of the project was the idea of “co-production” which acted as a “critical countervailing force to professional, systematized care.”94 instead of typical reliance on professional services, this approach identified parents’ individual skills to determine how people could help others within the community.95 for example, one woman who had a history of drug use and who had been formerly incarcerated used this experience to support others dealing with those struggles. a grandmother who raised her grandchildren started a support group for those in similar positions.96 84 gary b. melton, mandated reporting: a policy without a reason, 29 child abuse & neglect 9, 15 (2005), https://www.sciencedirect.com/science/article/pii/s0145213 404002789?via%3dihub [https://perma.cc/efh8-hrzp]. 85 id. 86 id. 87 see melton & melton, supra note 28, at 71–73. 88 id. at 74. 89 id. 90 bob jones, creating community-driven wraparound, in the resource guide to wraparound 1 (e. j. bruns & j. s. walker eds. 2008), https://nwi.pdx.edu/nwibook/chapters/section-2.pdf [https://perma.cc/22xs-fzqg]. 91 id. at 2. 92 id. at 6. 93 id. 94 id. 95 id. at 7. 96 id. 42 colum. j. race & l. f. [vol. 12:29 over time, reliance on the project became less formal as connections within the community deepened.97 unlike in strong communities or the project, in our current system, if a family needs help, most of the people they would turn to—teachers, social workers or doctors—are mandated reporters.98 mandated reporters are required by law to report suspected child abuse or neglect or face the loss of their professional licenses or even subjection to criminal penalties.99 once a parent is reported, their cry for help is treated like an admission of wrongdoing.100 in many instances, the assigned caseworker approaches interactions with the family as an evidence-gathering mission, rather than an opportunity to help.101 even with the best of intentions, true reasonable efforts may not be possible because in many communities, the necessary services may not be available.102 this is in part because historically, more money has been allocated towards foster care than to services to prevent removal.103 currently, $5.3 billion is spent on the foster care industrial complex versus $553 million on reunification services.104 we spend ten times as much on adoption as we do on reunification.105 the current financial incentive structure motivates states to remove children, because foster care costs are reimbursed, whereas prevention and preservation are not.106 according to the national coalition for child protection reform, “children often are removed from their families ‘prematurely or unnecessarily’ because federal aid formulas give states ‘a strong financial incentive’ to do so rather than provide services that could help to keep families together.”107 happily, there is a significant amount of funding available to support widespread implementation of the insights in this piece. under the coronavirus aid, relief, and economic security (“cares”) act, $45 million was allocated “to support the child welfare needs of families during this crisis and to help keep families together.”108 further, under the bill, the 97 id. at 8. 98 adrienne jennings lockie, salt in the wounds: why attorneys should not be mandated reporters of child abuse, 36 n.m. l. rev. 125, 131 (2006). 99 child. bureau, u.s. dep’t of health & hum. servs., penalties for failure to report and false reporting of child abuse and neglect 2 (feb. 2019), https://www.childwelfare.gov/pubpdfs/report.pdf [https://perma.cc/g36q-m2wm]. 100 see melton, supra note 84, at 9–18. 101 id. 102 see, e.g., edwards, supra note 38, at 6. 103 will l. crossley, defining reasonable efforts: demystifying the state’s burden under federal child protection legislation, 12 b.u. pub. int. l.j. 259, 276 (2003). 104 state-by-state data, casey fam. programs (aug. 2021), https://www.casey. org/state-data/ [https://perma.cc/7pss-agzg]. 105 elizabeth brico, the government spends 10 times more on foster care and adoption than reuniting families, talk poverty (aug. 23, 2019), https://talkpoverty.org/ 2019/08/23/government-more-foster-adoption-reuniting/ [https://perma.cc/a4h9-j6cr]. 106 robert m. gordon, drifting through byzantium: the promise and failure of the adoption and safe families act of 1997, 83 minn. l. rev. 637, 664–82 (1999). 107 richard wexler, the unreasonable assault on “reasonable efforts,” nat’l coal. for child prot. reform, https://web.archive.org/web/20091024031909/http://www. nccpr.org/newissues/9.html (quoting nat’l comm. on child., beyond rhetoric: a new american agenda for children and families 290 (1991)). 108 press release, admin. for child. & families, the administration for children and families to release funding to support child welfare services, (apr. 24, 2020), 2022] a role for communities 43 administration for children and families of the u,s. department of health and human services also increased the reimbursement rate for prevention services from fifty percent to full reimbursement for the current fiscal year.109 reinvesting in community-based prevention efforts would mean that families have places right in their backyards to go to when they’re struggling, without relying on children’s services. for example, new hampshire’s division for children, youth and families (“dcyf”) collaborated with a community provider to create a “warm line” which families can call to get support or referrals.110 professionals follow up to ensure that families are doing well and that they have been able to access the suggested services.111 the personnel answering the phone do not work for dcyf, as there is an understanding that people are more likely to ask for help from a community-based program than the state due to the fear of family regulation system involvement.112 similar models could be implemented nationwide. iv. conclusion neglect and poverty are intertwined. this recognition therefore requires us to pinpoint our focus on strengthening communities to meet the basic needs of families to increase their capacity to care for their children in safe and loving homes.113 early, community-based intervention can both prevent the circumstances that lead to actual maltreatment and ameliorate many of the conditions that are later mistaken for maltreatment. further, evidence suggests that community interventions such as these are less complex and relatively inexpensive, because the core messages are simple and success is possible with just a few community outreach workers.114 not only would children avoid being unnecessarily removed from their homes, the system could then focus on those children who are actually harmed or at risk of harm, leading to better outcomes for them.115 knowing what we know about prevention and the effectiveness of programs and efforts designed and administered in a manner consistent with haddon, it seems clear that such efforts are mandated by the https://www.acf.hhs.gov/media/press/2020/administration-children-and-families-releasefunding-support-child-welfare [https://perma.cc/258l-8nqh]. 109 id. 110 building communities of hope: creating a better future for children and families in a time of crisis, casey fam. programs (2020), https://www.casey.org/hope/ [https://perma.cc/eb4s-tdnk]. 111 id. 112 id. 113 press release, admin. for child. & families, child abuse, neglect data released (jan. 15, 2020), https://www.acf.hhs.gov/media/press/2020/2020/child-abuseneglect-data-released [https://perma.cc/h8cl-dpp2]. 114 id. 115 american child welfare system has lost its way says rochester historian, univ. of rochester: news ctr. (dec. 11, 2020), https://www.rochester.edu/news center/american-child-welfare-system-has-lost-its-way-says-rochester-historian-464292/ [https://perma.cc/n8mx-7bra] (“[h]aving social workers sort through all of these reported cases is a huge drain on the system: it doesn’t keep families safer, and it doesn’t provide services for families. it actually obscures the problem and makes it harder for social workers to identify the children who are in need of intervention.”). 44 colum. j. race & l. f. [vol. 12:29 “reasonable effort to prevent removals” requirement as written. it is not “reasonable” to seek to prevent a child’s removal simply by last-minute, emergency measures after the state believes a child has already been harmed or is at risk of harm. more than fifty years after william haddon first published his work depicting the necessity of “pre-event” measures for prevention of harm,116 states should not be considered to be in compliance with the “reasonable efforts to prevent removal” requirement if they have not engaged in primary prevention efforts including wealth-building and promotion of social cohesion. 116 see generally haddon, changing approach, supra note 25. i. introduction ii. the failure of the reasonable efforts to prevent removal requirement iii. the promise of a prevention-based approach a. the haddon matrix b. successful prevention campaigns c. preventing child removals: primary prevention efforts to build communities’ wealth and social cohesion iv. conclusion microsoft word aggarwal note publication final.docx columbia journal of race and law vol. 13 august 2023 no. 1 note prison labor and the fair labor standards act: resolving the circuit split on whether incarcerated workers are entitled to the federal minimum wage tanisha mink aggarwal* at any given time, around half the incarcerated population in the united states works full-time. a large majority of incarcerated workers are engaged in “prison housework,” doing laundry, working in the kitchen, or providing janitorial services, etc. a smaller portion of individuals work in prison industries to produce goods and services for both government agencies and private corporations. national estimates for the annual value of prison and jail industrial output come to around $2 billion. despite this, the average wage for incarcerated individuals working in stateowned industries is anywhere between $0.33 to $1.41 per hour. mass incarceration and the prison industry have become seamlessly intertwined with america’s racially stratified economy. wal-mart, victoria’s secret, boeing, microsoft, and starbucks are some of the many major u.s. companies that have partnered with prison industries in the past to profit off of free or underpaid labor. in the absence of clear supreme court ruling or guidance from congress, it remains unclear whether incarcerated workers may be considered “employees” as defined by the fair labor standards act (“flsa”) and therefore subject to the federal minimum wage protections. without any guidance, lower courts have developed a patchwork of conflicting standards and formalistic dichotomies to address the issue of flsa coverage for incarcerated workers. this note analyzes the circuit split on the question of flsa coverage and provides recommendations on how the supreme court should decide the issue. this note goes on to advance a new “but-for” test for courts to adopt when deciding which kinds of incarcerated workers should be covered by the flsa. * j.d. candidate, 2023, columbia law school; b.a., 2020 barnard college of columbia university. i would like to thank abby e. shamray for all of her thoughtful feedback and assistance as my note editor in helping this piece come to fruition. thank you to my supervisor, professor ponsa-kraus for her assistance and support throughout the notewriting process. thank you to my friends and family and loved ones for their constant encouragement. lastly, thank you to the columbia journal of race and law staff and editors, especially natasha almanzar-sanchez and ben mackin. 894 colum. j. race & l. [vol. 13:893 introduction ................................................................................................ 895 i. unpacking the six forms of prison labor in the u.s. ..................... 898 a. non-industry work: state level ................................................ 898 b. non-industry work: work-release programs ........................... 901 c. non-industry work: federal level ............................................. 902 d. industry work: state level ......................................................... 902 e. industry work: federal prison industries (“fpi” or unicor) ...................................................................... 904 f. industry work: prison industry enhancement certification program (piecp) ................................................... 905 ii. the circuit split on prison labor and the fair labor standards act ...................................................................................... 909 a. background on the fair labor standards act ........................... 909 b. introducing the circuit split: the rise of the bonnette factors ......................................................................... 910 c. introducing the circuit split: the fall of the bonnette factors ......................................................................... 913 iii. how the supreme court should interpret congressional intent ................................................................................................... 916 a. congressional intent & the purpose of the flsa .................... 916 1. goal 1: ensure minimum standards of living .................. 916 2. goal 2: eliminating unfair competition ............................ 918 3. a third overlooked goal: the prevention of labor strikes ............................................................................... 921 b. congressional intent & the ashurst-sumners act ................... 923 iv. the supreme court must reject the usage of bright-line rules .................................................................................................... 924 a. bright line rules: voluntary vs. compelled labor .................. 924 b. bright line rules: inside vs. outside of prison walls .............. 926 v. a new “economic reality” test: a “but-for” test ............................ 927 conclusion .................................................................................................. 928 2023] prison labor 895 introduction the california department of corrections and rehabilitation (“cdcr”), in cooperation with the department of forestry and fire protection (“cal fire”), operates thirty-five “conservation camps” where incarcerated inmate firefighters1 earn between $2.90 and $5.12 per day according to the cdcr.2 the official website states the primary mission of the conservation camps is to “support state, local and federal government agencies as they respond to emergencies such as fires, floods, and other natural or manmade disasters.”3 these incarcerated individuals who work as “volunteers,” earn $1 an hour when fighting on an active fire line.4 according to cal fire’s 2018–2019 annual report, incarcerated firefighters made up approximately 27% of the state’s total firefighting personnel.5 according to a report by cal fire, the conservation camps, which date back to world war ii, save california taxpayers around $100 million per annum.6 in new york, at the height of the covid-19 pandemic lockdowns, governor cuomo announced that incarcerated workers would begin producing new york state’s own brand of hand sanitizers.7 the production was overseen by corcraft, a state-owned corporation run by the state department of corrections and community supervision (“doccs”). 1 conservation (fire) camps, cal. dept. of corr. & rehab., https://www.cdcr.ca.gov/facility-locator/conservation-camps [https://perma.cc/l9by-x575] (last visited feb. 11, 2022) (“the primary mission of the conservation camp program is to support state, local and federal government agencies as they respond to emergencies such as fires, floods, and other natural or manmade disasters.”). 2 nicole goodkind, prisoners are fighting california’s wildfires on the front lines, but getting little in return, fortune (nov. 1, 2019, 12:03 pm), https://fortune.com/2019/11/01/california-prisoners-fighting-wildfires/ [https://perma.cc/yh2f-8e63]. 3 cal. dept. of corr. & rehab., supra note 1. 4 christie thompson, formerly incarcerated firefighters are still fighting california’s wildfires, slate (sept. 2, 2020, 6:00 am), https://slate.com/news-andpolitics/2020/09/formerly-incarcerated-firefighters-california-wildfires.html [https://perma.cc/45sk-7yx5] (“before the pandemic, thousands of the state’s wildfire crews came from state prisons—incarcerated people make around $1 an hour containing fires, clearing brush, and doing other dangerous labor.). 5 cal fire at a glance, cal. dept. of forestry and fire prot. (sep. 2018), https://web.archive.org/web/20200329195608/https://www.fire.ca.gov/media/4922/glance.pdf [https://perma.cc/8kd2-h83d]. 6 matt clarke, california’s firefighting prisoners in short supply, prison legal news (jan. 8, 2020) https://www.prisonlegalnews.org/news/2020/jan/8/californiasfirefighting-prisoners-short-supply [https://perma.cc/awf6-86d5] (“this underpaying of thousands of prisoners employed at fire camps – who constitute about a third of the state’s wildfire fighters – saves california an estimated $100 million a year.”); see also jaime lower, what does california owe its incarcerated firefighters?, the atlantic (july 27, 2021), https://www.theatlantic.com/politics/archive/2021/07/california-inmate-firefighters/619567/ [https://perma.cc/mp8c-uxgr] (“alisha tapia . . . was incarcerated in puerta la cruz, an all-female fire camp north of san diego. . . . she’d already worked two fire seasons in collaboration with the california department of forestry and fire protection in the middle of an extreme drought.”). 7 christopher robbins, new york state's new hand sanitizer is made by prisoners paid an average 65 cents an hour, gothamist (mar. 9, 2020), https://gothamist.com/news/new-york-states-new-hand-sanitizer-made-prisoners-paidaverage-65-cents-hour [https://perma.cc/gqz5-dgha] (“corcraft is the brand name for the division of correctional industries, a state-owned company operated by the state department of corrections and community supervision (doccs), which runs new york's prisons. around 2,100 people incarcerated by new york state work for corcraft.”). 896 colum. j. race & l. [vol. 13:893 despite generating between $30–40 million in annual revenues8, inmates working for corcraft earned an average of 0.65 cents per hour and as little as 0.16 cents per hour.9 the united states, despite making up only 5% of the world’s population, accounts for 25% of the world’s prison population.10 in 2014, the u.s. had a total prison population of about 1.6 million11, not including those held in jails or under surveillance while on probation or parole.12 approximately 870,000 of those incarcerated worked full-time.13 a large majority of these workers were engaged in “institutional maintenance,” working, for example, in the kitchen, doing laundry, and providing janitorial services.14 a smaller portion of these inmates, between 75– 80,000, worked in prison industries to produce goods and services for both government agencies and private corporations.15 in other words, incarcerated individuals are made not only to work for and sustain the very institutions that keep them locked up but also for large private corporations for little to no compensation, many of which go on to lobby congress and local officials for harsher and more punitive sentencing laws and policing.16 8 foil disclosure: despite millions in revenue from nys agencies – over $340 million spanning nine fiscal years –corcraft continues to pay incarcerated new yorkers pennies on the dollar, the legal aid society 1 (mar. 12, 2020), https://legalaidnyc.org/wp-content/uploads/2020/03/03-12-20-foil-disclosure-corcraft.pdf [https://perma.cc/v3kk-xun4]. 9 robbins, supra note 7. 10 13th (kandoo films 2016). 11 total correctional population, bureau just. stat. (may 11, 2021), https://bjs.ojp.gov/data/key-statistics [https://perma.cc/m77r-amgu]. 12 in 2019, this number fell slightly to around 1.4 million. see e. ann carson, prisoners in 2019, bureau just. stat. 1 (oct. 2020) https://bjs.ojp.gov/content/pub/pdf/p19.pdf [https://perma.cc/8h67-d675] (listing the 2019 total prison population at 1,430,805). when looking at the entire correctional system, a total of about seven million people were under state surveillance in 2020 (combining people incarcerated in prisons and jails and those on parole and probation). see also wendy sawyer & peter wagner, mass incarceration: the whole pie 2020, prison pol’y initiative (mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.cc/rt8f-w2jq] (“the american criminal justice system holds almost 2.3 million people in 1,833 state prisons, 110 federal prisons, 1,772 juvenile correctional facilities, 3,134 local jails, 218 immigration detention facilities, and 80 indian country jails as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the u.s. territories.”). 13 beth schwartzapfel, the great american chain gang, the american prospect (may 28, 2014) [hereinafter schwartzapfel, chain gang], https://prospect.org/justice/greatamerican-chain-gang/ [https://perma.cc/n98h-e2qa]. 14 id. (“despite decades’ worth of talk about reform-of giving prisoners the skills and resources they need to build a life after prison-the vast majority of these workers, almost 700,000, still do “institutional maintenance” work. . . . they mop cellblock floors, prepare and serve food in the dining hall, mow the lawns, file papers in the warden’s office, and launder millions of tons of uniforms and bed linens.”). 15 eric m. fink, union organizing & collective bargaining for incarcerated workers, 52 idaho l. rev. 953, 953 (2016). 16 a 2021 annual report from corecivic (one of the largest corporations in private prisons) claimed an annual revenue of around $1.8 billion. see corecivic 2021 annual report 2 (2021), https://ir.corecivic.com/static-files/d3f1752e-87b8-4256-99ed-f3803c5817f8 [https://perma.cc/u69w-7m74] (revenue in 2021 was $1,862,616); see also martha c. white, locked-in profits: the u.s. prison industry, by the numbers, nbc news (nov. 2, 2015, 5:28 pm), https://www.nbcnews.com/business/business-news/locked-in-profits-u-s-prisonindustry-numbers-n455976 [https://perma.cc/l45t-zfm7] (corecivic and geo collectively 2023] prison labor 897 mass incarceration and the prison industry have become seamlessly intertwined with america’s racially stratified economy, touching upon every aspect of our lives as consumers. wal-mart, victoria’s secret, boeing, microsoft, and starbucks are some of the many major u.s. corporations that have partnered with prison industries to benefit from the lack of labor protections afforded to incarcerated workers.17 national minimum estimates for the annual value of prison and jail industrial output come to approximately $2 billion.18 despite this, the average wage for prisoners working in state-owned industries is anywhere between $0.33 to $1.41 per hour.19 while these incarcerated workers are full-time workers, they do not receive the same protections and benefits as nonincarcerated workers. in the absence of a clear supreme court ruling or guidance from congress, it remains unclear whether incarcerated workers are covered by the fair labor standards act (“flsa”). the flsa was enacted in 1938 and mandates that employers pay their employees in accordance with the current federal minimum wage standards set by congress.20 both congress and the supreme court have been silent on the question of whether or not incarcerated workers, whether they work for institutions or for private industries, are included within the definition of “employee” under the flsa, leaving the lower courts to develop a patchwork of conflicting standards and formalistic dichotomies to address the issue of flsa coverage for prison laborers. this note argues that incarcerated workers should qualify as “employees” within the meaning of the flsa and thus receive minimum wage protections. part i provides background on prison labor in the u.s. and offers a summary of the six main forms of prison work. the six categories discussed in part i are (1) non-industry work at the state level (2) work release programs (3) non-industry work at the federal level (4) industry work at the state level (5) industry work at the federal level and (6) the prison industry enhancement certification program (piecp). part ii then discusses the fair labor standards act and introduces the circuit split. part iii and iv analyzes the circuit split further and provides spent $8.7 million on lobbying efforts between 2010 and 2015); mathew clarke, study shows private prison companies use influence to increase incarceration, prison legal news (aug. 22, 2016), https://www.prisonlegalnews.org/news/2016/aug/22/study-shows-privateprison-companies-use-influence-increase-incarceration [https://perma.cc/4srk-j83y] (documenting how corrections corporation of america (cca) and geo have helped lobby for “truth-in-sentencing” “three-strikes” and “mandatory minimum” laws). 17 bob sloan, the prison industries enhancement certification program: why everyone should be concerned, prison legal news (mar. 15, 2020), https://www.prisonlegalnews.org/news/2010/mar/15/the-prison-industries-enhancementcertification-program-why-everyone-should-be-concerned [https://perma.cc/988v-9qmc] (“in the beginning, small businesses that had trouble hiring or retaining employees due to low wages or fluctuating work schedules solicited partnerships with prison industries. this changed dramatically by the 1990s . . . .”). 18 peter wagner, the prison index: section iii: the prison economy, prison policy initiative (apr. 2013) (citing joel dyer, perpetual prisoner machine 19 (2000)), https://www.prisonpolicy.org/prisonindex/prisonlabor.html [https://perma.cc/ht6d-b29k]. 19 wendy sawyer, how much do incarcerated people earn in each state?, prison policy initiative (apr. 10, 2017), https://static.prisonpolicy.org/blog/2017/04/10/wages/ [https://perma.cc/3qhz-9w6y]. 20 matthew j. lang, the search for a workable standard for when fair labor standards act coverage should be extended to prisoner workers, 5 u. pa. j. lab. & emp. l. 191, 192 (2002). 898 colum. j. race & l. [vol. 13:893 recommendations on how the supreme court should rule with respect to the sub-issues of congressional intent and certain bright-line rules that the circuits have adopted. finally, part v proposes a new “economic reality” test for the supreme court to adopt. i. unpacking the six forms of prison labor in the u.s. a. non-industry work: state level a common misconception about the prison industry, or what is often referred to as the “prison industrial complex”21 is that there are hundreds of thousands of prisoners across the u.s. working for private corporations. however, 700,000 out of 870,000 incarcerated workers in 2014 performed non-industry “prison housework,” working in the kitchen, doing laundry, cleaning, and performing administrative tasks. 22 non-industrial “housework” performed by prisoners in state facilities constitutes the largest section of prison labor. additionally, the fact that incarcerated workers are not included in official employment statistics feeds into this public misconception.23 data on compensation and employment for inmates by state and federal corrections agencies is not always readily available or even recorded. .as a result, the prison industry tends to be misunderstood. in reality, around 80% of all incarcerated workers held nonindustry prison jobs. the remaining 20% worked in private or governmentowned prison industries or in work release programs–the example of inmate firefighters in california would fall into this latter category. work release programs, discussed in greater detail later on, apply to a relatively small percentage of the working prison population—those who are at the end of their sentence or are deemed low-risk and therefore eligible for workrelease programs. the most comprehensive survey of state wage policies available today is a 2017 survey provided by the prison policy initiative.24 the 2017 survey data has been reproduced in the table below. the data shows that 21 named after the ‘military-industrial complex’ and popularized by scholars such as angela davis, the “prison industrial complex” can be defined as the “overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to economic, social and political problems.” see what is the pic? what is abolition?, critical resistance, http://criticalresistance.org/about/not-so-common-language/ [https://perma.cc/vj82-67ec] (last visited feb. 11, 2022). 22 schwartzapfel, chain gang, supra note 13; see also noah d. zatz, working at the boundaries of markets: prison labor and the economic dimension of employment relationships, 61 vand. l. rev. 857, 870 (2008) (describing “prison housework” as “inmates contribut[ing] directly to prison operations by cooking meals, doing laundry, or cleaning the facilities.”). 23 becky pettit, the invisible population: what the unemployment rate doesn’t show, good worldwide inc. (oct. 18, 2012), https://www.good.is/articles/the-invisiblepopulation-what-the-unemployment-rate-doesn-t-show [https://perma.cc/kkc2-v9bb] (the unemployment rate “doesn’t capture underemployment, other forms of labor inactivity, or unpaid labor. it also doesn’t tell us anything about the employment prospects of some groups of the population most economically at-risk.”). 24 sawyer, supra note 19; see also state and federal prison wage policies and sourcing information, prison pol’y initiative (apr. 10, 2017), https://www.prisonpolicy.org/reports/wage_policies.html [https://perma.cc/z8gw-lc3f] (detailing “pay scales and wage policies that apply to incarcerated people working in state and federal prisons, along with sourcing information available as of april 10, 2017.”). 2023] prison labor 899 national averages for state wages for non-industry work range from $0.14 to $0.63 per hour. in five states–alabama, arkansas, florida, georgia, and texas–non-industry jobs are unpaid. state wages for non-industry work ($00.00) lowest highest lowest highest alabama 0 0 montana 0.16 1.25 alaska 0.3 1.25 nebraska 0.16 1.08 arizona 0.15 0.5 nevada n/a n/a arkansas 0 0 new hampshire 0.25 1.5 california 0.08 0.37 new jersey 0.26 2 colorado 0.13 0.38 new mexico 0.1 1 connecticut 0.13 1 new york 0.1 0.33 delaware n/a n/a north carolina 0.05 0.38 florida 0 0.32 north dakota 0.19 0.88 georgia 0 0 ohio 0.1 0.17 hawaii 0.25 0.25 oklahoma 0.05 0.54 idaho 0.1 0.9 oregon 0.05 0.47 illinois 0.09 0.89 pennsylvania 0.19 1 indiana 0.12 0.25 rhode island 0.29 0.86 iowa 0.27 0.68 south carolina 0 0 kansas 0.09 0.16 south dakota 0.25 0.38 kentucky 0.13 0.33 tennessee 0.17 0.75 louisiana 0.04 1 texas 0 0 maine n/a n/a utah 0.4 n/a maryland 0.15 0.46 vermont 0.25 0.4 900 colum. j. race & l. [vol. 13:893 massachusetts 0.14 1 virginia 0.27 0.45 michigan 0.14 0.56 washington n/a 0.36 minnesota 0.25 2 west virginia 0.04 0.58 mississippi 0 n/a wisconsin 0.09 0.42 missouri 0.05 n/a wyoming 0.35 1 on top of the lack of meaningful compensation, many states retain “hard labor” statutes mandating that prisoners in state correctional facilities work.25 in these states, if an inmate refuses to work, they risk having their sentences lengthened or being placed in solitary confinement.26 for example, in texas—responsible for overseeing the largest state prison population in the u.s.27—inmates who refuse to work are punished and placed in “special cell restriction,” where inmates remain in the cell for twenty-four hours a day.28 even in states where mandatory work requirements are not imposed upon prison populations, inmates are strongly encouraged to work and may receive “earned time” credits for labor performed while incarcerated, allowing them to cut down their sentences.29 when forgoing work means forgoing the opportunity to reduce 25 see n.c. gen. stat. § 148-26(a) (2020) (“it is declared to be the public policy of the state of north carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them. the failure of any inmate to perform such a work assignment may result in disciplinary action.”); see also frequently asked questions, texas dept. of criminal just., https://www.tdcj.texas.gov/faq/cid.html [https://perma.cc/vyt4-ps8u] (last visited jan. 20, 2022) (“inmates who continue to refuse to work lose their privileges and are placed in ‘special cell restriction.’”); wash. rev. code § 72.64.030 (2022) (“every prisoner in a state correctional facility shall be required to work in such manner as may be prescribed by the secretary . . . .”). 26 kanyakrit vongkiatkajornsep, inmates are kicking off a nationwide prison strike today, mother jones (sept. 9, 2016), https://www.motherjones.com/politics/2016/09/ national-prison-strike-inmates/ [https://perma.cc/22gq-v5cy] (“nor can prisoners opt out of working, says paul wright, an editor at prison legal news. ‘typically prisoners are required to work, and if they refuse to work, they can be punished by having their sentences lengthened and being placed in solitary confinement,’ wright says.”). 27 texas 2019, nat’l inst. of corr. (2019), https://nicic.gov/statestatistics/2019/texas-2019 [https://perma.cc/5zuh-qygh] (texas holds the record for the largest state prison population in the u.s., surpassing california with a total of 158,429 people who were incarcerated at the end of 2019.). 28 frequently asked questions, texas dept. of crim. just., https://www.tdcj.texas.gov/faq/cid.html [https://perma.cc/xz4x-8632] (last visited jan. 20, 2022). 29 alison lawrence, cutting corrections costs: earned time policies for state prisoners, national conference of state legislatures 1 (july 2009), https://www.leg.state.nv.us/app/interimcommittee/rel/document/13084 [https://perma.cc/74l3-tmul]; see also earned and good time policies: comparing maximum reductions available, prison fellowship, https://www.prisonfellowship.org/wpcontent/uploads/2021/07/prisonreformredemptionactcampaigncomparisonchart_f.pdf [https://perma.cc/8u6m-fdy7] (last visited feb. 2, 2022) (comparing maximum sentence reductions available across states and in federal prison through earned and good time policies). 2023] prison labor 901 the time one spends in prison, the choice to work is often only a choice on paper. prisoners performing “housework” for state and federal facilities across the u.s. allows the department of corrections to save billions of dollars on annual salaries that would otherwise have to be paid out to hired cooks, janitors, prison law library staff members, and so on. as articulated by the prison policy initiative, “[f]orcing people to work for low or no pay and no benefits allows prisons to shift the costs of incarceration to incarcerated people — hiding the true cost of running prisons from most americans.”30 the ingenuity of the this model of forced and free prison labor is that corrections departments and the federal bureau of prisons can market prison labor to the public as serving a rehabilitative function for the benefit of the inmate and society at large. in this way, forced unpaid labor is re-packaged as a social good. however, the pitch that prison labor serves a rehabilitative function and provides meaningful vocational training for the benefit of inmate is easily exposed as a façade when one looks at the reality of the type of labor performed by prisoners, and who it is performed for. b. non-industry work: work-release programs outside of housework, cheap or free prison labor is routinely relied upon to close budget gaps for state and local municipal governments who find themselves short on funds to provide ordinary municipal services to inhabitants. this work is assigned to prisoners who are deemed low-risk as part of work-release programs. according to the florida department of corrections, inmate worker squads provided 5.8 million hours of labor, and saved the state around $46 million in taxpayer money in the 2011–2012 budget year by performing work that includes road cleaning, ground and building maintenance, construction projects, and cleaning forests.31 in california, the conservation fire camps help save the state around $100 million taxpayer dollars a year.32 in new jersey, prisoners help cushion government budgets by clearing deer carcasses and litter from highways. in georgia, inmates work in municipal graveyards.33 going back to the inmate firefighters in california, when world war ii depleted a large proportion of the labor force that was used by cal fire, the state turned to incarcerated workers and established the conservation camp program.34 by replacing government workers with inmate laborers, the state can save on salaries and still provide these required services. in the face of budget cuts, or economic downturn, inmate laborers have historically become a crutch for local policymakers to fall back on. 30 sawyer & wagner, supra note 12. 31 willie howard, inmates saving money for palm beach county cities, the palm beach post (nov. 30, 2013), https://www.palmbeachpost.com/story/news/crime /2013/12/01/inmates-saving-money-for-palm/7255655007/ [https://perma.cc/j8b4-7rbq]. 32 clarke, supra note 6. 33 robbie brown & kim severson, enlisting prison labor to close budget gaps, n.y. times (feb. 24, 2011), https://www.nytimes.com/2011/02/25/us/25inmates.html [https://perma.cc/c3lu-62a4]. 34 cal. dept. of corr. & rehab., supra note 1. 902 colum. j. race & l. [vol. 13:893 c. non-industry work: federal level at the federal level, inmates are required to work unless they provide a valid medical excuse.35 similar to state prisons, inmates in federal prisons may work either for the institution or for prison industries. assignments to jobs are determined by institutional needs. institution work assignments may include employment in food services, warehouse work, plumping, paint work, or groundskeeping. inmates performing this non-industry “housekeeping” work earn $.12 to $.40 per hour of “satisfactory work performed.” d. industry work: state level every state has its own separate prison industries program which engages state prisoners in a variety of work, ranging from manufacturing license plates to animal husbandry. these goods and services are then sold for profit to city, state, or federal agencies, and other private or public institutions. prison industries are operated by state-owned corporations which function as an arm of the state’s corrections department. in louisiana, inmates work in garment factories under louisiana’s prison enterprises (pe).36 in tennessee, tennessee rehabilitative initiative in correction (tricor) operates a beef cattle farm and a row crop farm in two state prison facilities. in texas, texas correctional industries (tci) oversees the production of graphic products, detergents, furniture, and textile and steel products.37 at tci in texas, one of the largest state prison industries in the country, incarcerated workers produced over $70 million in products in the 2020 fiscal year.38 those workers did not receive any wages from tci for their labor. while tci claims that these jobs provide inmates with marketable job skills, some critics of the industry have argued otherwise.39 35 work programs, fed. bureau of prisons, https://www.bop.gov/inmates/ custody_and_care/work_programs.jsp [https://perma.cc/t7hb-4y8c] (last visited feb. 5, 2022) [hereinafter work programs] (“sentenced inmates are required to work if they are medically able.”). 36 david reutter, prison officials praise industry programs despite downsides, prison legal news (june 6, 2014), https://www.prisonlegalnews.org/news/ 2014/jun/6/prison-officials-praise-industry-programs-despite-downsides/ [https://perma.cc/ 2mxn-a9xw] (“louisiana’s prison enterprises, which operates a garment factory and other programs, reported a $1.27 million net profit in fiscal year 2012 on gross revenue of $17.9 million.”); see also our products, prison enterprises, http://www.prisonenterprises.org/ our-products [https://perma.cc/zf7h-zmhb] (last visited feb. 11, 2022) (listing various products pe makes, including garments). 37 about us, texas corr. indus., https://tci.tdcj.texas.gov/info/about/default.aspx [https://perma.cc/kek2-zwxp] (last visited feb. 11, 2022) (“tci manufactures goods and provides services for sale, on a for-profit basis, to city, county, state and federal agencies, public schools, public and private institutions of higher education, public hospitals and political subdivisions.”). 38 texas dept. of crim. just., annual review fy2020 60 (2020) [hereinafter texas annual review fy 2020], https://www.tdcj.texas.gov/documents/ annual_review_2020.pdf [https://perma.cc/9bc8-ju2j] (“sales for the . . . facilities . . . were $72.3 million for the fiscal year.”). 39 texas correctional industries: providing useful work skills or slave labor?, prison legal news (aug. 7, 2014), https://www.prisonlegalnews.org/news/2014/aug/7/ texas-correctional-industries-providing-useful-work-skills-or-slave-labor [https://perma.cc/ eq5k-3ka5] (“critics claim that many of the job skills learned by prisoners in tci industry programs will be virtually useless after they’re released because they involve outdated 2023] prison labor 903 they point out that the job skills picked up by inmates at tci are not transferable to jobs outside of prison because the work entails the use of outdated techniques or work in industries that are not as prevalent in the outside world.40 as one example, texas only has a small number of detergent plants and license plate factories remaining in the state.41 comprehensive data from the 2017 ppi survey on wages for state prison industries is reproduced below.42 stage wages for state-owned industries ($00.00) lowest highest lowest highest alabama 0.25 0.75 montana n/a n/a alaska 0.65 4.90 nebraska 0.38 1.08 arizona 0.20 0.80 nevada 0.25 5.15 arkansas 0 0 new hampshire 0.50 1.50 california 0.30 0.95 new jersey 0.38 2.00 colorado n/a n/a new mexico 0.30 1.10 connecticut 0.30 1.50 new york average 0.62 delaware 0.25 2.00 north carolina 0.05 0.38 florida 0.20 0.55 north dakota 0.45 1.69 georgia 0 0 ohio 0.21 1.23 hawaii 0.50 2.50 oklahoma 0.00 0.43 idaho n/a n/a oregon 0.05 0.47 illinois 0.30 2.25 pennsylvania 0.19 0.42 indiana n/a n/a rhode island n/a n/a iowa 0.58 0.87 south carolina 0.35 1.80 kansas 0.25 3.00 south dakota 0.25 0.25 techniques or industries that are scarce in texas. for example, there are relatively few soap and detergent plants or flag manufacturers in the state. or license plate factories.”). 40 id. 41 id. 42 prison pol’y initiative, supra note 24. 904 colum. j. race & l. [vol. 13:893 kentucky n/a n/a tennessee n/a n/a louisiana n/a 0.40 texas 0 0 maine 0.58 3.50 utah 0.60 1.75 maryland 0.20 0.82 vermont 0.25 1.25 massachusetts n/a n/a virginia 0.55 0.80 michigan n/a n/a washington 0.70 2.70 minnesota 0.50 2.00 west virginia n/a n/a mississippi 0.20 1.30 wisconsin 0.79 1.41 missouri 0.30 1.25 wyoming 0.50 1.20 the table above shows that on average, incarcerated people working for state-owned businesses earn between $0.33 and $1.41 per hour. this is around double what incarcerated workers performing regular prison housework make. however, merely 6% of incarcerated workers in state prisons earn this higher wage, which itself is a trivial amount compared to the federal minimum wage.43 e. industry work: federal prison industries (“fpi” or unicor) under the federal prison system, prison industries are operated under federal prison industries, inc. (“fpi”). fpi, also known as unicor, is a corporation that is owned by the united states government and was established in 1934.44 the creation of federal prison industries in 1934 launched the modern era of using prison labor for private industry45 at a time when private business did not previously have access to the prisoner workforce.46 unicor’s stated mission is to “protect society, reduce crime, aid in the security of the nation’s prisons and decrease taxpayer burden by assisting inmates with developing vital skills necessary for successful reentry into society” and “reduce undesirable inmate idleness by providing a full-time work program for inmate populations.”47 unicor oversees all 43 id. 44 fink, supra note 15, at 961. 45 lan cao, made in the usa: race, trade, and prison labor, 43 n.y.u. rev. l. & soc. change 1, 14 (2019) (“the modern era of prison labor for private industry began in 1934, with the creation of the federal prison industries (‘fpi’), also known as unicor.”). 46 john dewar gleissner, how to create american manufacturing jobs, 9 tenn. j.l. & pol’y 166, 171 (2013) (“private prison industries came to a screeching halt at the time of the great depression. the hawes-cooper act of 1929, ‘[a]n act to divest goods, wares and merchandise manufactured, produced, or mined by convicts or prisoners of their interstate character in certain cases,’ took away the interstate commerce status of prison-made goods, allowing states to bar them from sale….many states prohibited the sale of those goods.”). 47 fiscal year 2021 annual management report, federal prison indus. 6 (2021), https://www.unicor.gov/publications/reports/fy2021_annualmgmtreport.pdf [https://perma.cc/un6a-uq6e]. 2023] prison labor 905 prison industries for the federal bureau of prisons. unicor’s annual report for fiscal year 2021 states that it “provides employment and training for inmates in the federal prison system while remaining self-sufficient through the sale of its products and services primarily to other federal departments, agencies, and bureaus.”48 in 2021, unicor operated seven business segments: agribusiness, clothing, textiles, electronics, fleet, office furniture, recycling, and services. the company operated at sixty-three factories and two farms located across fifty-one prison facilities. unicor’s top customers include other federal departments and agencies such as the department of defense (dod), the department of homeland security (dhs), and the department of justice (doj).49 total sales for the 2021 fiscal year amounted to $404.1 million. in order to accomplish this, unicor employed a total of 16,315 inmates who were compensated between $0.23 to $1.15 per hour.50 after making a fraction of minimum wage, inmates were then required to contribute half of their earnings towards court-ordered fines, victim restitution, incarceration fees, child support, or any other monetary judgments.51 f. industry work: prison industry enhancement certification program (piecp) the sixth and final category of prison labor involves incarcerated individuals who are employed by private corporations via the prison industry enhancement certification program (piecp)52. piecp is the sole medium through which private companies may receive permission to contract with prisons to access their inmate workforce. though piecp projects account for only a small fraction of the total inmate laborer population (at the end of 2020, piecp projects employed 5,000 inmates), 48 in unicor’s annual report, as well as in the inmate handbook provided by the federal bureau of prisons, inmate workers are consistently referred to as “employees.” despite the use of this terminology in the federal handbook, inmates who work for federal prisons are nonetheless not considered “employees” for the purposes of the fair labor standards act. id. at i-1. 49 unicor primarily sells its products to the federal government, so as to avoid unfair competition with private-sector companies. id. (“federal prison industries, inc. (fpi) provides employment and training for inmates in the federal prison system while remaining self-sufficient through the sale of its products and services primarily to other federal departments, agencies, and bureaus.”); see also beth schwartzapfel, modern-day slavery in america’s prison workforce, prison legal news (sep. 9, 2014) [hereinafter schwartzapfel, modern-day slavery], https://www.prisonlegalnews.org/news/2014/sep/19/modern-dayslavery-americas-prison-workforce [https://perma.cc/pan5-6h3n] (“unicor – sells products exclusively to the federal government, with the aim of minimizing competition with private-sector companies.”). 50 inmate admission & orientation handbook, dept. of just. & fed. bureau of prisons 5 (2014) https://www.bop.gov/locations/institutions/gre/ gre_fpc_aohandbook.pdf [https://perma.cc/cb65-6apl]. 51 unicor program details, fed. bureau of prisons, https://www.bop.gov/ inmates/custody_and_care/unicor_about.jsp [https://perma.cc/3b9u-n5dv] (last visited feb. 10, 2022) [hereinafter unicor program details] (“the inmate financial responsibility program (ifrp) ensures that inmates who have financial obligations contribute 50% of their earnings.”). 52 about piecp, nat’l corr. indus. ass’n, https://www.nationalcia.org/aboutpiecp [https://perma.cc/r2qa-jrv8]. 906 colum. j. race & l. [vol. 13:893 these job arrangements often garner the greatest media attention.53 victoria’s secret, amazon, wholefoods, and other private companies that used prison labor via piecp have all drawn public scrutiny for their business practices.54 as a general rule, the ashurst-sumners act, codified as 18 u.s.c. §1761(a), makes it unlawful to transport in interstate commerce, goods, wares, or merchandise produced by prison labor.55 however, the prison industry enhancement certification program, which was created by congress in 197956 and codified under 18 u.s.c. §1761(c)(1), is an exception to the act.57 §1761(c)(1) provides that the ashurst-sumners act will not apply to goods produced by inmates participating in "prison work pilot projects designated by the director of the bureau of justice assistance.”58 in other words, piecp exempts certified departments of corrections from normal restrictions on the sale of offender-made goods in interstate commerce.59 up to fifty jurisdictions around the country may be certified under piecp. as of december 2020, forty-three states are certified to participate in the program.60 once states are certified, private industries can establish joint ventures with state departments of corrections to produce goods. in order to obtain certification, states have to satisfy certain criteria, including: workers have to be paid the prevailing wage (the department of labor defines prevailing wage as “the average wage paid to similarly employed workers in a specific occupation in the area of intended 53 for a full list of private companies that were contracted through piecp in 2020, see prison industry enhancement certification program certification & costs accounting center listing, nat’l corr. indus. ass’n (2020) [hereinafter piecp end of quarter statistics 2020] https://df1d6e07-2d3a-49dd-bb43-170ddf635f64.usrfiles.com/ ugd/df1d6e_8d3b0797c98b469c831c436f5db359b4.pdf [https://perma.cc/nn6r-fftx]. 54 see emily yahr, yes, prisoners used to sew lingerie for victoria’s secret — just like in ‘orange is the new black’ season 3, washpost (june 17, 2015), https://www.washingtonpost.com/news/arts-and-entertainment/wp/2015/06/17/yesprisoners-used-to-sew-lingerie-for-victorias-secret-just-like-in-orange-is-the-new-blackseason-3 [https://perma.cc/sr65-ba4a] (“in 1995, the national institute of justice released a study that confirmed garment manufacturer third generation contracted sewing work in the early ’90s to a prison through a deal with south carolina correctional industries. victoria’s secret, along with other companies, wound up buying the apparel through third generation — that were actually made by inmates at the leath correctional facility in greenwood.”). 55 ashurst-sumners act, pub. l. no. 74-215, 49 stat. 494 (1935) (codified at 18 u.s.c. §1761(a)) (“whoever knowingly transports in interstate commerce or from any foreign country into the united states any goods, wares, or merchandise manufactured, produced, or mined, wholly or in part by convicts or prisoners, except convicts or prisoners on parole, supervised release, or probation, or in any penal or reformatory institution, shall be fined under this title or imprisoned not more than two years, or both.”). 56 nat’l corr. indus. ass’n, supra note 52. 57 18 u.s.c. §1761(c) (1)(“in addition to the exceptions set forth in subsection (b) of this section, this chapter shall not apply to goods, wares, or merchandise manufactured, produced, or mined by convicts or prisoners wh1) are participating in—one of not more than 50 prison work pilot projects designated by the director of the bureau of justice assistance”). 58 id. 59 nat’l corr. indus. ass’n, supra note 52. 60 piecp end of quarter statistics 2020, supra note 53. 2023] prison labor 907 employment,”61 ” which is often higher than the federal minimum wage), inmate participation should be voluntary, the program should not result in the displacement of civilian workers employed in the community, and the state has to consult with local labor unions and private industry.62 congress created these provisions in order to protect free-world workers and avoid unfair market competition.63 despite these mandatory requirements under piecp, many of these rules have been violated or ignored by prisons and corporations across the country.64 for example, only prisoners employed in production work are entitled to minimum or prevailing wages.65 some companies, driven by profit-motivated incentives, have evaded paying wages by classifying jobs as “service” rather than “production.”66 one such example is the pie program at the south central correctional facility in tennessee.67 prisoners working in the program produced t-shirts for corporate customers such as taco bell. while the prisoners who printed the shirts were classified as production workers and earned the minimum wage, those who packaged the shirts were classified as service workers and received $0.50 per hour.68 in addition to pie minimum wage policies, evasion of other policies is also rampant, such as the requirement to consult with local labor organizations prior to setting up shop.69 private companies have routinely shirked their responsibilities and requirements under piecp undetected. this shirking of piecp requirements is easy to do because compliance with piecp is overseen by the national correctional 61 prevailing wage information and resources, u.s. dept. of lab., https://www.dol.gov/agencies/eta/foreign-labor/wages [https://perma.cc/b3v5-rv2d] (last visited november 23, 2022). 62 for a full list of certification criteria, see program brief: prison industry enhancement certification program, bureau of just. assistance 5 (2018), https://bja.ojp.gov/sites/g/files/xyckuh186/files/publications/piecp-program-brief_2018.pdf [https://perma.cc/8hgp-m7ps]. 63 see sloan, supra note 17 (“the reasoning behind these stipulations, . . . was to allow competition be-tween prison industries and private sector manufacturers. . . . by making the requirements mandatory, congress believed they could ensure that prison industries were competitive with free-world businesses without giving either an unfair advantage.”). 64 id. (“there have been many examples of profiteering at the expense of regulatory compliance – such as with the current meltdown on wall street, the enron and worldcom scandals, and ponzi schemes like that of bernie madoff (which brought down the jeht foundation, a major funder of criminal justice programs).”). 65 id. (“further, prisoners who participate in pie programs are only entitled to receive minimum or prevailing wages if they are engaged in production work.”). 66 id. 67 id. 68 id. 69 id. (“in 2006, texas correctional industries partnered with a private company in a prison industry program that manufactured flatbed trailers at the michael unit in tennessee colony. the private sector piecp partner was direct trailer and equipment company (dtec), owned by a former texas prison employee. the texas private sector prison industries oversight authority had failed to contact local organized labor groups prior to authorizing the operation. they also failed to contact lufkin industries or bright coop – texas-based companies that manufactured the same type of trailers as dtec . . . . texas lawmakers, concerned over the loss of jobs . . . quickly got involved. they discovered that failures by the state’s private sector prison industries oversight authority had led to unfair competition – including prisoners being paid minimum wage with no employee benefits, and dtec being allowed to lease the industry facility at the michael unit for $1.00 a year.”) 908 colum. j. race & l. [vol. 13:893 industries association (ncia).70 this is significant because the ncia is headed by the very same people that run the piecp programs. members of the ncia mainly consist of administrators and employees of state prison industry programs and the corresponding private companies. ncia members therefore have no incentive to hold their own companies and industries accountable.71 due to the lack of meaningful oversight by the ncia, companies move to evade the piecp requirements. moreover, under federal law, up to 80 percent paychecks of pie employees may be deducted for room and board, taxes, family support, and victims' funds.72 ncia found that employees kept only 20% of their wages.73 as put into words by paul wright —founder of prison legal news and formerly incarcerated individual— "so while businesses get rent-free space, prisoners are paying for their 'room and board.’”74 despite these downfalls and even after accounting for deductions, piecp offers some of the highest-paying jobs available to inmates and tend to be highly coveted. yet only a small percentage of incarcerated workers actually benefit: piecp workers form less than 1% of the working prison population.75 an interesting point to note is that pie programs are heavily opposed by labor groups as well, in addition to social justice advocates and carceral abolitionists. unpaid or forced prison labor in general has historically been resisted and disliked by labor unions due to concerns over unfair competition.76 these concerns are not unfounded. piecp programs have indeed caused real-world job losses. one example is that of talon industries in washington state, which specializes in water jet technologies. 77 in 1999, the company was forced to lay off twenty-three employees and went out of business due to competition from microjet–a contractor that 70 id. (the bureau of justice assistance (bja) outsourced the management of piecp programs to the ncia in 1995). 71 id. (“the association’s board of directors is almost exclusively composed of prison industry officials . . . . ncia includes the very piecp participants that it is charged with monitoring; in effect, it is overseeing itself”). 72 18 u.s.c § 1761(c)(2) (“[s]uch wages may be subject to deductions which shall not, in the aggregate, exceed 80 per centum of gross wages, and shall be limited as follows . . .”); see also texas annual review fy 2020, supra note 38 (by way of example, during the 2020 fiscal year in texas correctional facilities, pie participants earned “$730,830 and contributed $79,741 in federal taxes, $73,084 to crime victims’ compensation, $5,515 to restitution, $73,962 for family support, and $358,900 to room and board.”). 73 beth schwartzapfel, your valentine, made in prison, int’l lab. rts. f. (feb. 12, 2009) [hereinafter schwartzapfel, prison valentine], https://laborrights.org/in-thenews/your-valentine-made-prison [https://perma.cc/3e72-h82a] (“the national correctional industries association, the nonprofit organization that certifies pie programs, found that participants kept only about 20 percent of their wages in the past two quarters.”). 74 id. 75 id. (“the waiting list for work at joint venture is up to 200 people long.”). 76 see am. fed’n of lab. and cong. of indus. org., the exploitation of prison labor (may 8, 1997), https://aflcio.org/about/leadership/statements/exploitation-prison-labor [https://perma.cc/3czp-dffe] (announcing the acl-cio’s opposition to “the widespread use of prison labor throughout the public and private sectors in the united states in unfair competition with free labor.”). 77 sloan, supra note 17 (“also in washington state, talon industries, a company that used water jet technology, was forced out of business in 1999 and had to lay off 23 employees due to competition from microjet, a private sector piecp partner at the monroe corrections center.”). 2023] prison labor 909 produced airplane parts for boeing–which operated a piecp program at the monroe corrections center.78 ii. the circuit split on prison labor and the fair labor standards act having reviewed the six main forms of prison labor in the u.s. in part i, part ii will now discuss the fair labor standards act in detail and discuss how the various circuit courts have come out in deciding whether or not incarcerated workers may be entitled to the federal minimum wage. a. background on the fair labor standards act the fair labor standards act establishes minimum wage, maximum hours prior to overtime pay, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in federal, state, and local governments.79 today, the federal minimum wage is set at $7.25, and the maximum hours of work, at regular pay, are capped at forty.80 the flsa also provides that in cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher of the two.81 congress enacted the flsa near the end of the great depression in 1938 with the stated purpose of eliminating “as rapidly as practicable” the existence “in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”82 congress found that these labor conditions burdened the free flow and goods in commerce, resulted in unfair competition, and led to labor disputes and strikes which further obstructed the free flow of goods in commerce. the minimum wage mandate and overtime provisions of the flsa are afforded to those workers who count as “employees” as defined by the statute.83 since its passage, the act has undergone various amendments, where congress has broadened the coverage of the flsa to those employees who were not previously included. the largest expansion of flsa coverage occurred in 1974, when congress expanded the flsa to cover all state and local government employees.84 congress has also passed amendments that exempt certain classes of employees from coverage, such 78 id. 79 see u.s. dep’t of lab., wages and fair labor standards act, https://www.dol.gov/agencies/whd/flsa [https://perma.cc/u7ac-napp] (last visited may 30, 2023). 80 id. 81 id. 82 29 u.s.c. § 202(a) (2000). 83 see 29 u.s.c. § 203(e) (2000) (statutory definition of “employee”); see also 29 u.s.c. § 206 (2000) (minimum wage provision). 84 see fair labor standards amendments of 1974, pub. l. no. 93-259, 88 stat. 55, 59–60 (codified as 29 u.s.c. § 203). the amendment was initially found unconstitutional by the supreme court in ’at’l league of cities v. usery, 426 u.s. 833 (1976) which was later overruled by garcia v. san antonio metro. transit auth., 469 u.s. 528, 545—557 (1985) (ruling that states are not immune from minimum wage and overtime requirements of the fair labor standards act because there was nothing in those requirements that infringed upon state sovereignty or violated any constitutional provision). 910 colum. j. race & l. [vol. 13:893 as school teachers, full-time students, or part-time babysitters.85 prison laborers, however, are not mentioned anywhere in the full text of the flsa. in no subsequent amendment has congress addressed incarcerated workers, either exempting or extending them coverage.86 furthermore, in no other significant employment statute are prisoners explicitly excluded from the definition of “employee.”87 the supreme court has declined the opportunity to rule on the matter, leaving the various circuit courts free to conflict with one another over the legal standards to be used. no court has yet gone as far to rule that prisoners are per se excluded from the category of “employee” within the meaning of the flsa. instead, the circuit courts have applied rather arbitrary dichotomies, varying interpretations of congressional intent, and diverging tests aimed at ascertaining the “economic reality” of the inmate to decide the issue of coverage on a case-by-case basis. the following sections will provide an overview of the existing circuit court decisions and an analysis of the various axes along which the issue of coverage versus non-coverage has been decided. b. introducing the circuit split: the rise of the bonnette factors the flsa defines the term “employee” as “any individual employed by an employer.”88 to “employ” is defined as “to suffer or permit to work.”89 “employer” means “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .”90 unsurprisingly, the circuit court decisions, which will be discussed below, exhibit ambiguity and confusion due to the little interpretive guidance these definitions provide. in goldberg v. whitaker house co-op., inc., the supreme court clarified that the test for employment rests on the “economic reality” of the employment relationship for the purposes of the flsa.91 the court has further stated that this “economic reality” test should be applied, “with the totality of the circumstances of the economic reality in mind.”92 in 1983, the ninth circuit formulated its own “economic reality” test in bonnette v. california health & welfare agency.93 bonnette identified the following factors: “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the 85 see 29 u.s.c. § 213(a) (2002) (exempting school teachers, outdoor salesmen, parttime babysitters); see also 29 u.s.c. § 214(a) (2002) (exempting “learners, apprentices, messengers”). 86 lang, supra note 20, at 194 (“not surprisingly, the generic nature of these definitions has rendered them unhelpful to courts looking for guidance in determining whether prisoner workers are ‘employees’ [under flsa].”). 87 zatz, supra note 22, at 875 (“shifting focus from control to exclusions would accomplish little, however, because neither the flsa nor any other major employment statute specifically excludes prisoners from the ‘employee’ category.”). 88 29 u.s.c. § 203(e)(1) (2000). 89 29 u.s.c. § 203(g) (2000). 90 29 u.s.c. § 203(d) (2000). 91 goldberg v. whitaker house coop., inc., 366 u.s. 28, 33 (1961) (“[t]he ‘economic reality’ rather than ‘technical conce’ts’ is to be the test of employment”) (citations omitted). 92 lang, supra note 20 at 197 (characterizing goldberg, 366 u.s. at 33 and rutherford food corp. v. mccomb, 331 u.s. 722, 722 (1947)). 93 bonnette v. cal. health & welfare agency, 704 f.2d 1465, 1470 (9th cir. 1983). 2023] prison labor 911 rate and method of payment, and (4) maintained employment records.”94 additionally, the determination of whether an employer-employee relationship exists does not depend on “isolated factors but rather upon the circumstances of the whole activity.”95 shortly after bonnette was decided, other circuits adopted these factors as well. in 1983, the second circuit marked a turning point in the history of flsa claims brought by prisoners when it decided carter v. dutchess community college.96 by applying the bonnette factor test, carter became the first federal case to be decided in favor of the inmate worker. louis carter was an incarcerated individual at fishkill correctional facility in new york. while at fcf, he was selected to work for dutchess community college (dcc), which offered college-level courses to inmates at fishkill. dcc hired carter to work as a teaching assistant and conduct twenty classes which were all held within the prison compound. for this work, carter was compensated at $1.20/hour. carter filed suit, complaining that he was not compensated the federal minimum wage (at the time $3.10), in violation of the flsa.97 the district court granted summary judgment to the defendants, finding that no employment relationship existed between the inmate and the dcc (a private entity) because “ultimate control” over the inmates rested with the prison and not dcc. 98 the second circuit court of appeals reversed and remanded the ruling, stating that “the practical effect of the district court's decision is an absolute preclusion of flsa coverage for prisoners.”99 the second circuit rejected the argument that in order to find an employer-employee relationship, the employing entity must have “ultimate control” over the worker, and found this framework to be inconsistent with supreme court precedent.100 instead, the second circuit held that a fact-intensive and case-by-case inquiry into the economic reality was necessary.101 in its application of the bonnette factors, the court stated that dcc may have exercised a sufficient number 94 carter v. dutchess cmty. coll., 735 f.2d 8, 12 (2d cir. 1984) (citing bonnette, 704 f.2d 1465 at 1470). 95 see bonnette, 704 f.2d at 1469 (quoting mccomb, 331 u.s. at 730). 96 see carter, 735 f.2d at 12. 97 id. at 10. 98 id. at 12 (the district court’s distinction between “qualified control” and “ultimate control” followed prior case law); see alexander v. sara, inc., 559 f. supp. 42, 44 (m.d.la. 1983), aff’d, 721 f.2d 149, 149 (5th cir. 1983) (holding that incarcerated individuals are not within the coverage of the fair labor standards act); see also sims v. parke davis & co., 334 f. supp. 774, 786—787 (e.d. mich. 1971) (holding that incarcerated individuals were not employees within the meaning of federal or state minimum wage laws); see also huntley v. gunn furniture co., 79 f. supp. 110, 116 (w.d. mich. 1948) (ruling that incarcerated plaintiffs failed to show that they qualified as employees under the definition of the fair labor standards act). 99 carter, 735 f.2d, at 12. 100 id. at 12—13 (in its opinion, the 2nd circuit found this argument to run “counter to the breadth of the statute and to the congressional intent.” (citing falk v. brennan, 414 u.s. 190 (1973) (finding that a real estate management partnership, for the purposes of the minimum wage mandate of the flsa, was an employer of maintenance workers since it hired and supervised the workers and thus exercised substantial control over the workers, even though these workers were at all times considered employees of the owners of the apartment buildings)). 101 carter, 735 f.2d, at 13. 912 colum. j. race & l. [vol. 13:893 of employer prerogatives over the inmate worker to warrant flsa coverage and overturned the district court’s grant of summary judgment.102 importantly, in its opinion, the second circuit also noted that the category of prisoners is not included in the “extensive” list of workers who are expressly exempted from flsa coverage.103 the court took this as an indication that congress had not intended to automatically exclude prison laborers from coverage. the opinion stated “[i]t would be an encroachment upon the legislative prerogative for a court to hold that a class of unlisted workers is excluded from the act.”104 the court in carter was among the first to promulgate this “workers not exempted” justification for extending coverage to prison laborers. this position was supported by the eleventh circuit in patel v. quality inn south, where the court argued that the framework of the flsa “strongly suggests that congress intended an all-encompassing definition of the term ‘employee’ that would include all workers not specifically excepted.”105 the supreme court also supported this notion in powell v. u.s. cartridge co., where it stated that the specificity of the exemptions laid out in the flsa “strengthens the implication that employees not thus exempted…remain within the act.”106 the fifth circuit also followed carter in its decision in watson v. graves when it held that inmates who were not sentenced to hard labor and were working for a private construction business as part of a work release program were “employees” of that business for the purposes of the flsa and entitled to minimum wage.107 while the second circuit simply remanded the case for further proceedings, the fifth circuit went a step further and rendered a decision on the ultimate issue, becoming the first circuit to extend flsa coverage to prisoners.108 the fifth circuit, while purporting to use the four factor bonnette test, decided the case by considering additional factors like unfair competition and seemed to follow a totality-of-the-circumstances approach.109 in coming to its conclusion, the court noted that the private company had “de facto” power over hiring and firing and controlled the inmate’s work schedules.110 however, the prison technically set the pay 102 id. at 15 (“dcc made the initial proposal to ‘employ’ workers; suggested a wage as to which there was ‘no legal impediment’; developed eligibility criteria…was not required to take any inmate it did not want; decided how many sessions, and for how long, an inmate would be permitted to tutor; and sent the compensation directly to the inmate’s prison account.”). 103 id. at 13 (citing 29 u.s.c. § 213 (1982)). 104 id.; see also id. at 12 (the second circuit added that “[t]he statute is a remedial one, written in the broadest possible terms so that the minimum wage provisions would have the widest possible impact in the national economy.”). 105 patel v. quality inn south, 846 f.2d 700, 702 (c.a.11 (ala.),1988) 106 powell v. u.s. cartridge co., 339 u.s. 497, 517 (1950). 107 watson v. graves, 909 f.2d 1549, 1550 (5th cir. 1990). 108 lang, supra note 20, at 200. 109 see e.g. danneskjold v. hausrath, 82 f.3d 37, 41 (2d cir. 1996) (explaining the 5th circuit’s divergence from the 4 factor test); see also zatz, supra note 22, at 874 (“[watson] emphasized the economic significance of inmate labor to the contractor and the local construction industry by virtue of the la’or’s competitive impact”). 110 see watson, 909 f.2d at 1555. 2023] prison labor 913 rate for inmates, and neither the private company nor the prison maintained any employment records. furthermore, the warden of the prison could technically overrule hiring decisions. the court held that these facts “do not preclude application of the flsa…when we analyze the economic realities of the inmate's employment in light of the policies behind flsa.”111 diverging from the second circuit, the court in watson went beyond the four factor test and held that the inmate workers gave the employer an economic advantage and that by evading minimum wage requirements, the company was unfairly competing with other construction contractors in the area.112 in support of its decision, the court stated, “we must also look to the substantive realities of the relationship, not to mere forms or labels ascribed to the laborer by those who would avoid coverage.”113 additionally, the fifth circuit court has also found persuasive the supporting argument that prisoners are not expressly exempted from coverage under the flsa .114 c. introducing the circuit split: the fall of the bonnette factors after the decisions carter and watson, circuit courts began to roll back their use of the bonnette test in the context of prison laborer flsa claims—perhaps in response to, or in fear of, how favorable the factor test was turning out to be towards inmate workers.115 the first blow came in 1991 when the ninth circuit decided gilbreath v. cutter biological, inc.116 in gilbreath, with facts similar to those of watson, inmate workers brought suit against both arizona correctional enterprises (arcor), a part of arizona department of corrections, and cutter, a private corporation that ran a plasma treatment center on-site at the prison in order to recover minimum wage. the court found that prisoners working within the prison for the private plasma treatment center were not “employees” within the meaning of the flsa. in doing so, gilbreath refused to apply the bonnette factors. instead, the court hinged its decision on the proposition that neither the doc nor cutter, individually or jointly, met the statutory definition of an employer as per the act. gilbreath also focused on the fact that “[t]he inmate assistants were not on a work release program, did not work off premises and were not free not to work,”117 and that there was no evidence that the state defendants had a pecuniary rather than a 111 id. 112 id. (“jarreau incurred no expense for overtime, unemployment insurance, social security, wor’er’s compensation insurance, or other employee benefit plans because he had no ‘employees.’”). 113 id. at 1554. 114 id. (“furthermore, the category of prison inmate is not one of the groups congress expressly excluded from coverage by flsa. for the court to exempt an entire class of workers on the basis of a technical label could upset the desired equilibrium in the work place.”) (internal citation omitted). 115 after carter and watson, the ninth circuit decided hale v. arizona, 967 f.2d 1356 (9th cir. 1992) [hereinafter hale (i)], wherein the circuit court applied the bonnette factors and extended flsa coverage to prisoners who were working for the state to make produce goods in the prison that would be sold outside of the prison. hale v. arizona had the potential to be a landmark ruling however it was later reversed en banc upon a re-hearing. see hale v. state of arizona, 993 f.2d 1387 (9th cir. 1993) [hereinafter hale (ii)]. 116 gilbreath v. cutter biological, inc., 931 f.2d 1320 (9th cir. 1991). 117 id. at 1331; see also ariz. rev. stat. ann § 31-251(a) (2018) (under arizona state law, prisoners are required to “engage in hard labor for not less than forty hours per week.”). 914 colum. j. race & l. [vol. 13:893 penological interest in the inmates’ labor.118 this section of reasoning suggests that the ninth circuit was placing greater weight on whether the labor was performed on or off the prison premises, and whether or not the inmates were subject to mandatory labor requirements. after gilbreath, the seventh circuit decided vanskike v. peters, and held that a prisoner performing prison housework (such as working in the kitchen or as a janitor) was not entitled to minimum wage under the flsa.119 the vanskike opinion greatly undermined efforts to extend flsa protections to incarcerated workers.120 daniel vanskike, an inmate at the stateville correctional center in illinois, filed a pro se complaint alleging that he performed “forced labor,” including kitchen and janitorial work while incarcerated, and the department of corrections failed to compensate him minimum wage. in coming to its conclusion, the seventh circuit declined to apply bonnette’s four-factor standard. in its reasoning the court stated that, if literally applied to vanskike’s situation, all four bonnette factors may be satisfied by the doc.121 however, the “bonnette factors fail to capture the true nature of the relationship for . . . they presuppose a free labor situation.”122 the seventh circuit reasoned that the doc’s “control” over vanskike stemmed from his incarceration itself, rather than any bargained-for exchange of labor for consideration. while the bonnette factors focus on the degree of control the employer exercises over the employed, “the problematic point is that there is too much control to classify the [prison-inmate] relationship as one of employment.”123 rather than using any criteria for employment, or judicially appraisable factors, the seventh circuit in remarkably circular logic focused only on vanskike’s status as an inmate. the court, in its footnotes, went on to reject the argument that workers not specifically exempt come within the scope of the act, because this argument “assumes that prisoners plainly come within the meaning of the term ‘employees.’”124 in doing so, it disagreed with the second and fifth circuit’s prior interpretation of congressional intent. vanskike proved to be a seminal case within the field of prisoner flsa litigation. virtually all decisions afterwards ruled against inmate workers, often relying on the seventh circuit opinion. many of these courts have refused to apply the “economic reality” test or rejected application of the bonnette factors.125 118 gilbreath, 931 f.2d at 1331. 119 vanskike v. peters, 974 f.2d 806, 807 (7th cir. 1992) (“we do not question the conclusions of carter, watson and [hale (i)] ‘that prisoners are not categorically excluded from the f’sa’s coverage simply because they are prisoners. we must nevertheless reject vansk’ke’s contention that he is an ‘employee’ for purposes of the flsa…’”). 120 id. at 806. 121 id. at 809. 122 id. 123 id. at 810. 124 vanskike, 974 f.2 at 807 n.2. 125 see gambetta v. prison rehab. indus. & diversified enter., inc., 112 f.3d 1119, 1224 (11th cir. 1997) (holding that inmates working for state prison industries are not covered by the flsa); see also franks v. okla. state indus., 7 f.3d 971, 973 (10th cir. 1993) (affirming dismissal of prisoner’s flsa claim because “the economic reality test was not 2023] prison labor 915 one such case that was decided post-vanskike was the 1993 case of hale v. state of arizona.126 in a rehearing en banc, the ninth circuit ruled that prisoners who were working for state prison industries (in this case, arcor enterprises, an arm of the arizona department of corrections) and were required to work under state law were not employees of the prison for the purposes of the flsa. the ninth circuit rejected the bonnette factors test, which, the court itself had created. the opinion stated “regardless of how the bonnette factors balance, we join the seventh circuit in holding that they are not a useful framework in the case of prisoners who work for a prison-structured program because they have to.”127 the court held that the bonnette factors assumed a free labor situation which did not apply to the prisoner context, and that the relationship between the prison and prison laborer is penological rather than pecuniary.128 as illustrated above, even within the same circuit, the existing opinions are inconsistent on whether to apply the bonnette “economic reality” test, when to apply it, and how to apply it.129 the result has been an arbitrary patchwork of federal caselaw on an issue that affects civil and constitutional rights of around 1.4 million american citizens currently held in state and federal prisons. in deciding whether or not to apply the bonnette factor test, the cases discussed above have considered a variety of factors and bright-line rules. put into broad categories, the circuit courts have looked at congressional intent by looking to both the stated purpose of the flsa and the ashurst-sumners act, whether the labor was voluntary or compelled, and whether the work was done inside or outside the prison walls. part iii will discuss these cases in further detail and argue that congressional intended to apply to work performed in the prison by a prison inmate.”); mcmaster v. minn., 30 f.3d 976, 980 (8th cir. 1994) (“plaintiffs, who are required to work as part of their sentences and perform labor within a correctional facility as part of a state-run prison industries program are not ‘employees’ of the state or prison within the meaning of the fair labor standards act.”); reimonenq v. foti, 72 f.3d 472, 475 (5th cir. 1996) (“we find that the ‘economic reality’ test, which is cast as a ‘control’ question designed to identify the responsible employer in a free-world work environment, is unserviceable, and consequently inapplicable, in the jailer-inmate context.”); danneskjold, 82 f.3d at 41 (finding that prison labor that produces goods or services for institutional needs of prison is not subject to flsa and rejecting use of the bonnette factors in the prison labor context); harker v. state use indus., 990 f.2d 131, 133 (4th cir. 1993) (ruling that the fair labor standards act does not apply to prison inmates performing work at a prison workshop within the penal facility as part of rehabilitative program); loving v. johnson, 455 f.3d 562, 563 (5th cir. 2006) (in the case of an inmate working in the prison laundry, held a prisoner doing work in or for the prison is not an “employee” under the flsa); bennett v. frank, 395 f.3d 409, 410 (7th cir. 2005) (holding that minimum wage provision of flsa did not apply to inmates of private prison). 126 see generally hale (ii) at 1393 (the question the court approached is “whether inmates working for a prison, in a program structured by the prison pursuant to state law requiring prisoners to work at hard labor, are ‘employees’ of the prison within the meaning of the flsa.”). 127 id. at 1394. 128 id. at 1394—1395. 129 this is in part due to the numerous categories of prison labor which were discussed in part i of this paper. not every circuit court has had the chance to consider all six categories of prison work. 916 colum. j. race & l. [vol. 13:893 intent points in favor of extending coverage to inmate workers. part iii will also argue that distinctions such as voluntary vs. compelled and inside vs. outside constitute arbitrary and formalistic dichotomies that should be abandoned by the supreme court in resolving this split. finally, part iv will propose a new “economic reality” test for the court to adopt in the prison labor context. iii. how the supreme court should interpret congressional intent a. congressional intent & the purpose of the flsa in order to determine congressional intent, the circuit courts have gone back to the stated purpose of the flsa. in particular, courts have interpreted the following two goals to be the main purposes of the act: (1) the “maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers” and (2) eliminating “unfair method[s] of competition in commerce.”130 the following paragraphs will discuss these goals in turn and argue that these two stated purposes of the flsa should lead the supreme court to take a stance on the circuit split in favor of incarcerated workers. this section will then introduce a third goal which has so far been overlooked– that of preventing labor strikes— and argue that this purpose too points in favor of extending flsa coverage to incarcerated workers. 1. goal 1: ensure minimum standards of living with respect to the first goal, the circuit courts that have addressed the argument have all found it inapplicable to the prison worker context. the living standards argument—which the second circuit rejected in carter—contends that the flsa does not apply to prisoners because their living conditions are determined by state policy and thus “have no need for bargaining strength since their right to work in the first place is a matter of legislative grace.”131 for example, the ninth circuit in hale (ii), the opinion stated “we agree with arizona that the problem of substandard living conditions, which is the primary concern of the flsa, does not apply to prisoners, for whom clothing, shelter, and food are provided by the prison.”132 similarly the seventh circuit in vanskike, wrote “the payment of minimum wage for a prisoner's work in prison would not further the policy of ensuring a ‘minimum standard of living” and that “[p]risoners' basic needs are met in prison, irrespective of their ability to pay.”133 the supreme court must recognize that this argument is incomplete because it presumes that incarcerated individuals will not 130 29 u.s.c. § 202(a) (2000). 131 carter, 735 f.2d at 13 (though the court recognized the “surface appeal of this logic,” it explicitly rejected it, finding that it was not dispositive.). 132 hale (ii) at 1396. 133 vanskike, 974 f.2d at 810; see also alexander v. sara, inc., 721 f.2d 149, 150 (5th cir. 1983) (holding that the labor of inmates sentenced to hard labor belongs to the institution, so there is no need to protect “the standard of living and general well-being of the worker in american industry”); miller v. dukakis, 961 f.2d 7, 9 (1st cir. 1992) (holding that “prisoners, are cared for (and their standard of living is determined, within constitutional limits) by the state.”). 2023] prison labor 917 someday reenter the labor force. according to a 2020 report published by the brennan center for justice,134 formerly incarcerated individuals earn approximately $6,700 annually, while their similarly situated peers earn approximately $13,800.135 at the time of the report, there were an estimated 7.7 million formerly incarcerated individuals alive in the u.s. the report calculated that when applying the “average earnings penalty,” formerly incarcerated individuals lose out on around $55.2 billion annually.136 upon release, formerly incarcerated people struggle to achieve “minimum standards of living” due to institutional barriers to employment, housing, and government benefits.137 coupled with the existing data on the positive correlation between poverty and crime,138 incarceration only leads to further impoverishment which significantly reduces the chances of successful reintegration and increasing the chances of ending back up in prison, once again using taxpayer money to incarcerate the same offenders. a second important consideration is that contrary to the seventh circuit’s position in vanskike, the basic needs of inmate workers are often not met in prison and do depend on their ability to pay. wages earned by inmate workers are generally placed in inmate trust funds or go directly to their commissary accounts.139 inmates across states rely on these funds to purchase basic requirements such as food, clothing, medicine, and hygiene products from the commissary that are not otherwise adequately provided by the prison. in a 2018 report on commissaries, the prison policy initiative noted that commissaries “present yet another opportunity for prisons to shift the costs of incarceration to incarcerated people and their families, often enriching private companies in the process.”140 by examining data from commissaries in illinois, washington, and massachusetts, the report 134 terry-ann craigie et al., conviction, imprisonment, and lost earnings: how involvement with the criminal justice system deepens inequality (2020) https://www.brennancenter.org/our-work/research-reports/conviction-imprisonment-andlost-earnings-how-involvement-criminal [https://perma.cc/mz46-pytu]. 135 id. at 14. 136 id. at 15; see also id. at 6 (“these earnings losses worsen economic disparities between black, latino, and white communities. white people who have a prison record see their earn-ings trend upwards, while formerly imprisoned black and latino people experience a relatively flat earnings trajectory. because black and latino people are also overrepresented in the criminal justice system, these economic effects are concentrated in their communities and exacerbate the racial wealth gap.”). 137see id. at 4 (“this report demonstrates that more people than previously believed have been caught up in the system, and it quantifies the enormous financial loss they sustain as a result; those who spend time in prison miss out on more than half the future income they might otherwise have earned.”); see also id. at 13 (“as explored in more detail below, some jobs require occupational licenses, and thousands of rules limit access to licenses for people with a criminal record. . . . according to one 2018 survey, 95 percent of employers conduct some form of background check on job candidates. . . .[a]pplicants with a criminal record are around 50 percent less likely to receive a call-back interview, depriving them of even the chance to explain their history.”). 138 bernadette rabuy & daniel kopf, prisons of poverty: uncovering the preincarceration incomes of the imprisoned, prison pol’y initiative (july 9, 2015) https://www.prisonpolicy.org/reports/income.html [https://perma.cc/a9yh-y7vx] (“[i]n 2014 dollars, incarcerated people had a median annual income of $19,185 prior to their incarceration, which is 41% less than non-incarcerated people of similar ages.”). 139 see stephen raher, the company store: a deeper look at prison commissaries, prison pol’y initiative (may 2018) https://www.prisonpolicy.org/reports/commissary.html [https://perma.cc/wg5q-e8yp]. 140 id. 918 colum. j. race & l. [vol. 13:893 found that food and hygiene products made up the bulk of purchases by inmates.141 lastly, providing or withholding minimum wage from incarcerated workers directly impacts the standards of living of free-world citizens and workers alike. incarcerated workers are not completely cut off from their families and communities. one of the biggest impacts of incarceration on families is the loss of financial support. when more than one in four black men—including fathers—are estimated to be incarcerated at least once over their lifetime142, the effects of incarceration tear through families143, and whole communities. poverty is thus allowed to spread laterally as community members lose the ability to support one another, dampening economic wellbeing overall for societies far beyond the prison walls. 2. goal 2: eliminating unfair competition circuits have been more divided on whether concerns of “unfair competition” as outlined in the flsa are applicable to prisoners. the vanskike court recognized that “it cannot be denied . . . the unfair competition rationale, broadly conceived, triggers some concerns in the context of prison labor.”144 the court noted, perceptively, that the unfair competition rationale would extend beyond the production of goods and to services such as janitorial or kitchen work, “for every prisoner who is assigned to sweep a floor or wash dishes for little or no pay, there is presumably someone in the outside world who could be hired to do the job . . . .”145 the court feared that taken to its logical conclusion, this approach to the flsa’s second purpose would require that all prisoners be paid minimum wages for any work done in prison. this result, it concluded, could not have been contemplated by congress.146 in contrast, in carter, the court determined that minimum wage protections were important to 141 id. (“in fy 2016, people in massachusetts prisons purchased over 245,000 bars of soap, at a total cost of $215,057. that means individuals paid an average of $22 each for soap that year, even though doc policy supposedly entitles them to one free bar of soap per week. or to take a different example: the commissary sold 139 tubes of antifungal cream.”). moreover, prison commissaries often sell goods for far higher prices than they would be sold for in the outside world. see cao, supra note 45, at 20–21 (stating that “[p]rison vendor companies provide exorbitantly priced goods and services to prisons, including basic food items like cereal and canned soup sold for five times its free world retail price.”). 142 see thomas p. bonczar & allen j. beck, lifetime likelihood of going to state or federal prison, bureau of just. stat. 3 (mar. 1997) https://bjs.ojp.gov/content/pub/pdf/llgsfp.pdf [https://perma.cc/g4rg-352x] (“an estimated 28.5% of black men, 16.0% of hispanic men, and 4.4% of white men are expected to serve a state or federal prison sentence. in general, women have lower lifetime chances of incarceration than men; however, black women (3.6%) have nearly the same chance as white men (4.4%) of serving time in prison . . . .”). 143 lauren e. glaze & laura m. maruschak, parents in prison and their minor children, bureau of just. stat. (aug. 1, 2009) https://static.prisonpolicy.org/scans/bjs/pptmc.pdf [https://perma.cc/n8mr-ex3r ] (“parents held in the nation’s prisons—52% of state inmates and 63% of federal inmates—reported having an estimated 1,706,600 minor children, accounting for 2.3% of the u.s. resident population under age 18.”). 144 vanskike, 974 f.2d at 812. 145 id. at 811. 146 see id. (the court argued that this proposition was improper because congress had already passed the ashurst-sumners act for the purposes of regulating unfair competition in the prison context. if this proposition was accepted, it would render the flsa superfluous). 2023] prison labor 919 eliminate unfair competition, among employers as well as workers looking for jobs, “we believe that courts should refrain from exempting a whole class of workers, based on technical labels, from the coverage of the flsa, because such action would have the potential for upsetting the desired equilibrium in the workplace.”147 in the absence of congressional or supreme court guidance, courts are also unclear on what exactly the flsa is preventing unfair competition of; whether it refers to unfair competition in the product market or in the job market, with some courts only considering one over the other.148 yet still, some courts have rejected the “unfair competition” rationale entirely.149 the supreme court should interpret the “unfair competition” rationale in favor of extending coverage to prison workers in a manner similar to the fifth circuit in watson and the second circuit in carter. the holdings in carter and watson, however, were narrowly limited to those inmate workers in certain work-release programs. subsequent circuit court opinions that have denied coverage and rejected the “unfair competition” rationale have done so by distinguishing the situation of the inmate-plaintiff from those in carter and watson.150 however, even where prisoners are working for industries, whether publicly or privately owned, the risk of unfair competition does not disappear. if inmates were not producing license plates for state or federal prison industries, these same public corporations would employ free-world laborers. indeed the seventh circuit recognized this logic, “assuming… that [vanskike] works to manufacture license plates, then the state (as producer) has an advantage over other potential producers of license plates in the economy, because it is able to produce that item at low cost.”151 the seventh circuit went on to acknowledge that this rationale would even extend to prison housework, “[f]or every prisoner who is assigned to sweep a floor or wash dishes for little or no pay, there is presumably someone in the outside world who could be hired to do the job…”152 the result that this rationale extends to all sectors of prison labor is not a slippery slope as the court in vanskike 147 carter, 735 f.2d at 13; see also watson, 909 f.2d at 1555 (emphasis added) (“[c]onstruction contractors in the area could not compete with jarreau’s prices because they had to pay at least minimum wage for even unskilled labor, not to mention all of the above listed overhead costs avoided by jarreau. it takes little imagination to recognize that job opportunities for non-inmate workers in the area was severely distorted by the availability of twenty dollar per day workers from the parish jail . . . .”). 148 hale (ii) at 1396 (“even though ‘unfair competition,’ broadly conceived, encompasses both product and labor markets, the effect in the labor market is what prompted congressional concern with unfair competition in the flsa.”); but see watson, 909 f.2d at 1554 (arguing that “[t]he act was drafted . . . to eliminate unfair competition among employers competing for business in the market and among workers looking for jobs”). 149 miller, 961 f.2d at 9 (“payment of sub-minimum wages . . . presents no threat of unfair competition to other employers, who must pay the minimum wage to their employees, because the treatment center does not operate in the marketplace and has no business competitors.”); cf. gilbreath, 931 f.2d at 1326 (rejecting the unfair competition argument on the grounds that the main purpose of prison labor is vocational training rather than profit). 150 vanskike, 974 f.2d at 8108 (“carter and watson involved situations quite different from the one here. in both cases the prisoners performed work for private, outside employers.”). 151 id. at 811. 152 id. 920 colum. j. race & l. [vol. 13:893 suggests. rather, it’s an accurate reflection of the economic reality faced by outside corporations and workers. it is difficult to deny that prisoners are still part of the national economy when the value of prison industrial output alone is estimated to be at least $2 billion.153 in the past few years, congress members have expressed concerns over the unfair competition posed by unicor.154 small businesses and other privately owned corporations have struggled to compete with unicor for government contracts, and have been forced to close plants or lay off workers.155 while private companies pay minimum wage, provide medical insurance, 401(k) plans, as well vacation days, unicor, as well as state prison industries, do not have to pay out any of these.156 further, while some courts157 have tried to argue that prison labor primarily serves a rehabilitative and vocational purpose rather than a pecuniary one, state and federal prison industries that are shielded from private competition, have no incentives to use state-of-the-art manufacturing or production technologies. as a result, prisoners employed in these programs do not gain modern job training that would allow them to obtain employment upon release.158 as another indicator of congressional intent, in wake of the act’s passage, the house explained in a report, “[n]o employer in any part of the united states in any industry affecting interstate commerce need fear that he will be required by law to observe wages … higher than those applicable to his competitors. no employee . . . need fear that the fair labor standards maintained by his employer will be jeopardized by oppressive labor standards maintained by those with whom his employer competes.”159 after considering this report, judge nelson in his dissent in gilbreath v. 153 wagner, supra note 18 (“minimum estimate of annual value of prison and jail industrial output: $2 billion”). 154 derek gilna, businesses, members of congress not happy with unicor, prison legal news (mar. 15, 2014), https://www.prisonlegalnews.org/ news/2014/mar/15/businesses-members-of-congress-not-happy-with-unicor [https:// perma.cc/lm6d-c9l3] (“unicor has become not only a job training program but a manufacturing behemoth that employs some 12,300 prisoners and made approximately $606 million in gross revenue in fiscal year 2012. . . . indeed, several companies have lost federal contracts due to competition from unicor, resulting in job losses among freeworld workers.”); see also h.r.2098, 113th cong. (2013), https://www.congress.gov/bill/113thcongress/house-bill/2098 [https://perma.cc/bf6z-5rlr] (congress introduced h.r. 2098, federal prison industries competition in contracting act of 2013, which would require unicor’s board of directors to “not later than september 30, 2014, increase the maximum wage rate for inmates performing work for or through federal prison industries to an amount equal to 50 percent of the minimum wage,” and “not later than september 30, 2019, increase such maximum wage rate to an amount equal to such minimum wage.”). 155 gilna, supra note 154 (“american apparel has to compete head-to-head with unicor on almost all of its contracts with the federal government, and the company said unfair competition from low-paid prisoner labor forced it to close a plant in may 2012 and lay off 175 workers.”). 156 id. 157 gilbreath, 931 f.2d at 1332. 158 gilna, supra note 154 (“manufacturing in america has changed over the decades but unicor does not use state-of-the-art manufacturing techniques because it has no need or motivation to do so – even though this means prisoners employed in unicor programs don’t receive modern job training that will help them obtain post-release employment.”). 159 gilbreath, 931 f.2d at 1332 (nelson, j., dissenting) (citing h.r. rep. no. 2182, 75th cong., 3d sess. 6–7 (1938)). 2023] prison labor 921 cutter biological, inc. correctly concluded that “congress intended the flsa to have the widest possible impact in the national economy…[t]his national purpose is subverted when a court permits one company within an industry to avoid the strictures of the act.”160 taking into account the record of real-world factory shutdowns and layoffs due to anti-competitive behavior by prison industries, the existing caselaw, as well as evidence of congress’s intent in passing the act, the supreme court should find that the “unfair competition” rationale of the flsa necessarily applies to the prison labor context, and encompasses both the product and labor market. 3. a third overlooked goal: the prevention of labor strikes the relevant portion of the flsa reads that one of its aims is to eliminate “the existence…of labor conditions detrimental to the maintenance of the minimum standard of living” which lead to “labor disputes burdening and obstructing commerce and the free flow of goods in commerce.”161 no circuit court has yet addressed the congressional concern over “labor disputes,” however, such concerns are equally relevant to prison workers and free-world workers alike. only a few years ago on september 9th, 2016, the u.s. experienced the largest prison strike in history.162 as many as 50,000163 prisoners across twenty-four states staged a coordinated strike and refused to show up for work on the 45th anniversary of the infamous attica uprising in new york.164 demands generally focused on “fair pay for their work, humane living conditions, and better access to education and rehabilitation programs.”165 the national strike included not only workers’ strikes, but 160 id. at 1334. 161 29 u.s.c.a § 202(a)(4) (west). 162 beth schwartzapfel, a primer on the nationwide prisoners’ strike, the marshall project (sep. 27, 2016) [hereinafter schwartzapfel, prisoners’ strike], https://www.themarshallproject.org/2016/09/27/a-primer-on-the-nationwide-prisonersstrike [https://perma.cc/3w4q-9k2l] (“according to strike organizers, more than 24,000 inmates in at least 12 states did not show up for work that day, and protests are ongoing in a handful of places.”); see also 2016 prison strike call to action, incarcerated workers org. comm. (jan. 11, 2017) https://incarceratedworkers.org/resources/2016-prison-strikecall-action [https://perma.cc/3tt2-4wpd] (“on september 9th of 1971 prisoners took over and shut down attica, new york state’s most notorious prison. on september 9th of 2016, we will begin an action to shut down prisons all across this country. we will not only demand the end to prison slavery, we will end it ourselves by ceasing to be slaves.”). 163 max blau & emanuella grinberg, why us inmates launched a nationwide strike, cnn (oct. 31, 2016), https://www.cnn.com/2016/10/30/us/us-prisonerstrike/index.html [https://perma.cc/2329-b7yw]. 164 id.; see also history.com editors, uprising at attica prison begins, history (july 21, 2010), https://www.history.com/this-day-in-history/riot-at-attica-prison [https://perma.cc/w4nm-823e] (the attica prison uprising, also known as the attica prison massacre, refers to the events of september 9, 1971, where around 1,200 prisoners seized control of the maximum-security attica correctional facility near buffalo, new york and held thirty-nine prison guards and employees hostage. when “negotiations stalled, state police and prison officers launched a disastrous raid on september 13, in which 10 hostages and 29 inmates were killed in an indiscriminate hail of gunfire. eighty-nine others were seriously injured.”). 165 schwartzapfel, prisoners’ strike, supra note 162; see also incarcerated workers org. comm., supra note 162. 922 colum. j. race & l. [vol. 13:893 also boycotts of prison commissaries and other paid services, peaceful demonstrations, and hunger strikes.166 two years later, prisoners organized a second nationwide strike. the 2018 prison strike started on august 21st and ended on september 9th and consisted of work stoppages and hunger strikes. the strike was partially in response to prison riot at the lee correctional institution that occurred in april of that year wherein seven inmates were killed.167 the strike was organized by jailhouse lawyers speak and the incarcerated workers organizing committee (iwoc).168 on the official iwoc website, the second demand out of a list of ten calls for “[a]n immediate end to prison slavery,” and states “[a]ll persons imprisoned in any place of detention under united states jurisdiction must be paid the prevailing wage in their state or territory for their labor.”169 as amani sawai, a spokesperson for jailhouse lawyers speak, explained, “the main leverage that an inmate has is their own body…[i]f they choose not to go to work and just sit in in the main area or the eating area, and all the prisoners choose to sit there and not go to the kitchen for lunchtime or dinnertime, if they choose not to clean or do the yardwork, this is the leverage that they have. prisons cannot run without prisoners’ work.”170 nationwide work stoppages, boycotts, and hunger strikes in prison and prison industries are a clear burden and obstruction to the free flow of commerce, bringing these events plainly within the scope of the kinds of labor disputes the flsa was intended to address. thus far, no federal court opinion considering flsa 166 schwartzapfel, prisoners’ strike, supra note 162 (“in one facility in michigan, several hundred inmates staged a peaceful protest march in the yard, but after the march ended and the protesters returned to their units, chaos broke out, with several units being vandalized. in south carolina, some inmates are organizing to stop paying the prison for goods and services like commissary items and phone calls. there were also reports of hunger strikes in several facilities.”); see also alice speri, prisoners in multiple states call for strikes to protest forced labor, the intercept (april 4, 2016), https://theintercept.com/2016/04/04/prisoners-in-multiple-states-call-for-strikes-to-protestforced-labor/ [https://perma.cc/t8jy-dtt7] (“’beginning on april 4, 2016, all inmates around texas will stop all labor in order to get the attention from politicians and texas’s community alike.’”). 167 german lopez, america’s prisoners are going on strike in at least 17 states, vox, aug. 22, 2018, https://www.vox.com/2018/8/17/17664048/national-prison-strike-2018 [https://perma.cc/qp5s-q96t] (“in total, seven inmates were killed and at least 17 were seriously injured, according to the associated press. an inmate told the ap that bodies were ‘literally stacked on top of each other,’ claiming that prison guards did little to stop the violence between inmates.”). 168 id. 169 prison strike 2018, incarcerated workers org. comm., https :// incarceratedworkers.org/campaigns/prison-strike-2018 [https ://perma.cc/7vaa-tzlv]. 170 lopez, supra note 167; see also brooke fryer, us inmates sent to solitary confinement over ‘prison slavery’ strike, nitv, sep. 5, 2018, https://www.sbs.com.au/nitv/nitv-news/article/2018/09/05/us-inmates-sent-solitaryconfinement-over-prison-slavery-strike [https://perma.cc/yqu4-l934] (“inmates across the united states have been sent to solitary confinement for participating in organizing a nationwide prison strike.”); jamiles lartey, us inmates claim retaliation by prison officials as result of multi-state strike, the guardian (aug. 31, 2018), https://www.theguardian.com/us-news/2018/aug/31/us-inmates-prison-strike-retaliation [https://perma.cc/q45c-8gfb] (“it is claimed that inmates – especially those seen as organizers – have been subject to solitary confinement, revocation of communication privileges and long-distance transfers, in attempts to weaken the effects of work stoppages and to chill dissent.”). 2023] prison labor 923 protections for prison laborers has had the benefit of reflecting upon these two massive nationwide strikes which have occurred within a two-year span of each other. any further adjudication on the matter by the federal courts and the supreme court must consider these events and find the third goal of preventing labor disputes on par with the other two primary purposes of the flsa. b. congressional intent & the ashurst-sumners act a seemingly compelling argument that courts have made to reject claims of unfair competition involve readings of the ashurst-sumners act171 in conjunction with the flsa.172 the ashurst-sumners act of 1935 was passed three years prior to the flsa. the ashurst-sumners act made it unlawful to knowingly transport in interstate or foreign commerce goods made by prison labor, subject to limited exceptions for agricultural commodities, parts for the repair of farm machinery, or products manufactured for government use.173 in vanskike, the seventh circuit held that “[t]he second purpose of the flsa coincides with the single purpose of the ashurst–sumners act—preventing unfair competition—and the latter statute, by its exception for goods used by government, belies the notion that any and all uses of prison labor by the government unduly obstruct fair competition.”174 subsequent opinions by the ninth and fourth circuits in hale (ii) and harker v. state use industries (4th cir. 1993) have employed the same reasoning.175 even assuming that this logic is sound, it would only exempt a small subset of prison labor from the flsa––those prisoners working in state and federal prison industries.176 additionally, the existence of a legal carve-out for government use does not mean that the government practice of using prison made goods does in actuality pose the same risks of unfair competitions as private usage of prison labor. as the court in vanskike opined, congress may have allowed this “governmental advantage” as a means of partially recuperating the costs of incarceration to the state.177 in any case, providing minimum wage protections would not eliminate this governmental advantage, as state and federal prison industries would still be ensured a constant source of labor, and would not be held responsible for other benefits such as paid vacation days or 401(k) plans and so on, that would have to be extended to free 171 ashurst-sumners act, pub. l. no. 74-215, 49 stat. 494 (1935) (codified as amended at 18 u.s.c. §§ 1761-1762). 172 lang, supra note 20 at 197. 173 18 u.s.c. § 1761(b) (“this chapter shall not apply to agricultural commodities or parts for the repair of farm machinery, nor to commodities manufactured in a federal, district of columbia, or state institution for use by the federal government, or by the district of columbia, or by any state or political subdivision of a state or not-for-profit organizations.”). 174 vanskike, 974 f.2d at 811. 175 hale (ii) at 1394; harker, 990 f.2d at 134 (“under harker’s interpretation, congress would have passed the flsa knowing that it made ashurst-sumners superfluous. what need would there be to criminalize the transport of prison-made goods if they did not enjoy the unfair economic advantage of being produced by cheap (non-flsa) labor?”). 176 part i.d, i.e., and i.f of this paper provides an in-depth view of prison industry work at the state and federal levels. the act says nothing about prison “housework” which constitutes the majority of prison labor, nor does it address work-release programs. a carveout is made for private prison industries operating under pies on the condition that workers are compensated with prevailing wages. 177 vanskike 974 f.2d at 811–812. 924 colum. j. race & l. [vol. 13:893 world workers. lastly, the temporal context of the ashurst-sumners act is relevant to deciphering congressional intent. at the time of its passage in 1935, the total prison population was around 144,180.178 by 2020, this number has increased by a factor of nine to around 1.2 million.179 in comparison the total american labor force in 1936 was 53.7 million.180 before the start of the covid-19 pandemic, this number had reached a peak of 164.4 million persons in february 2020, representing an increase of three times.181 as the data illustrates, prison laborers today represent a far greater fraction of the total u.s. labor force than they did at the time of the act’s passage. in other words, a significantly greater fraction of working adults today—likely far greater than congress could have contemplated in 1935—are left outside the reaches of the flsa and are subject to otherwise illegal employment conditions and compensation schemes, resulting in widespread consequences for both the product and labor markets. iv. the supreme court must reject the usage of bright-line rules a. bright line rules: voluntary vs. compelled labor in resolving the circuit split, the supreme court must abandon voluntariness as a factor in deciding the issue of flsa coverage to prisoners. the idea that coverage should hinge on whether or not the inmate labor was “voluntary” or “compelled” was influentially articulated by the seventh circuit in vanskike. in its opinion, the court found backing for this distinction in the loophole182 of the 13th amendment, “indeed, the thirteenth amendment's specific exclusion of prisoner labor supports the idea that a prisoner performing required work for the prison is actually engaged in involuntary servitude, not employment.”183 in gilbreath, the ninth circuit similarly ruled “it is highly implausible that congress intended the flsa's minimum wage protection be extended to felons serving time in prison. this is a category of persons . . . whose civil rights are subject to suspension and whose work in prison could be accurately characterized in an economic sense as involuntary servitude.”184 later, in hale (ii), the ninth circuit again reiterated “convicted criminals do not have the right freely to sell their labor and are not protected by the thirteenth amendment against involuntary servitude. because the 178 patrick a. langan et al., historical statistics on prisoners in state and federal institutions yearend 1925–86 6 (may 1998), https://www.ojp.gov/ pdffiles1/digitization/111098ncjrs.pdf [https://perma.cc/m7ay-muhu]. 179 see bureau just. stat., supra note 11. 180 stanley leberg et. al, labor force, employment, and unemployment, 1929–39: estimating methods, u.s. bureau of lab. stat. 51 (july 1948), https://www.bls.gov/opub/mlr/1948/article/pdf/labor-force-employment-and-unemployment1929-39-estimating-methods.pdf [https://perma.cc/6nws-uaat]. 181 civilian labor force level [clf16ov], fred, federal reserve bank of st. louis https://fred.stlouisfed.org/series/clf16ov [https://perma.cc/9ygp-e93p] (last accessed june 10, 2023). 182 u.s. const. amend. xiii, § 1 (section 1 of the thirteenth amendment provides “[n]either slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the united states, or any place subject to their jurisdiction.”). 183 vanskike, 974 f.2d at 809. 184 gilbreath, 931 f.2d at 1324. 2023] prison labor 925 plaintiffs in hale (ii) were compelled to perform hard labor under arizona law, they were not comparable to free-world employees.185 the fourth circuit decided harker v. state use industries based on similar logic, “[b]ecause the inmates are involuntarily incarcerated, the doc wields virtually absolute control over them to a degree simply not found in the free labor situation of true employment.”186 in henthorn v. department of navy, the d.c. circuit court of appeals also signed on to the dichotomy, explaining, “in cases such as watson and carter where the prisoner is voluntarily selling his labor in exchange for a wage paid by an employer other than the prison itself, the fair labor standards act may apply…however, in cases such as hale and vanskike, in which the prisoner is legally compelled to part with his labor as part of a penological work assignment…the prisoner may not state a claim under the flsa, for he is truly an involuntary servant to whom no compensation is actually owed.”187 notably, the flsa does not explicitly require any degree of voluntariness or agency that the worker must possess in order to qualify as an employee. the agency of the worker does not have any bearing on the prevalence of risks for unfair competition or substandard living conditions – in other words, this factor does not hold any consequences for commerce or the economy. following the logic in henthorn would result in disparities in the application of the flsa from state to state, depending on whether states have mandatory hard labor laws. where prisoners are commonly transferred between facilities across state lines, this arbitrary deprivation of employee protections is even more apparent. inmates in different jurisdictions could be performing the same exact labor and working the same hours, however, because in one state a conviction carries an additional sentence of hard labor, one inmate would get minimum wage protections under federal law and the other would not. creating such a distinction thus allows states to evade federal law by implementing their own hard labor statutes. this results in an encroachment on congress’s power and produces clear-cut dilemmas of vertical federalism. for these reasons, the voluntary vs. compelled distinction that many circuit courts have adopted or endorsed must be rejected by the supreme court. 185 hale (ii) at 1394 (internal quotations omitted) (“under arizona law, the state has the authority to require that each able-bodied prisoner . . . engage in hard labor for not less than forty hours per week”). 186 harker, 990 f.2d at 133; see also henthorn v. dep't of navy, 29 f.3d 682, 686 (d.c. cir. 1994) (“we hold that a prerequisite to finding that an inmate has ‘employee’ status under the flsa is that the prisoner has freely contracted with a non-prison employer to sell his labor”); watson, 909 f.2d at 1556 (“by stark contrast, watson and thrash were not required to work as a part of their respective sentences. therefore, their labor did not "belong" to the livingston parish jail and was not legitimately at the disposal of the sheriff or the warden.”); cf. carter, 735 f.2d at 15 (2d cir. 1984) (“while perhaps not the full panoply of an employer's prerogatives, this may be sufficient to warrant flsa coverage. . . . we hold only that carter has demonstrated genuine issues regarding material facts as to whether he is covered by the flsa, and we emphatically hold that the fact that he is a prison inmate does not foreclose his being considered an employee for purposes of the minimum wage provisions of the flsa”). 187 henthorn v. dep't of navy, 29 f.3d 682, 686 (d.c. cir. 1994). 926 colum. j. race & l. [vol. 13:893 b. bright line rules: inside vs. outside of prison walls most circuits have found that whether the labor was performed outside or inside the prison to be a deciding factor in the issue of coverage. the inside vs. outside distinction has two meanings: (1) whether the work was physically located inside or outside the prison walls and (2) whether the work was done for outside or inside employers. in a majority of the cases where prison laborers were found not to be “employees” under the flsa, the prisoners worked for prison authorities within the prison compound.188 where courts have found prison laborers to be covered by the flsa, the workers were employed outside the prison for private employers.189 for example, in carter the second circuits limited its holding to “outside employers.”190 in gilbreath v. cutter biological, inc., the ninth circuit rigidly held that even if inmates were working for a private employer, if the physical location of the work was within the prison, the flsa would not apply.191 the only court to reject the inside vs. outside dichotomy was the d.c. circuit in henthorn v. department of navy. in the opinion, the d.c. circuit noted that either type of inside vs. outside distinction “raises some difficult questions.”192 the court went on to ask rhetorically, [s]hould a prisoner working for a private employer who sets up shop within the prison compound not be paid minimum wage because he does not leave the prison grounds to do his work, while a prisoner performing the same work for the same employer but in a facility outside the prison should receive flsa protection? . . . in the same manner, should a prisoner working in a privately-run bookstore outside the prison be paid the minimum wage, but not an inmate working outside the prison in a public library?193 though the court eventually decided against the inmate-plaintiff, henthorn accurately highlighted the formalistic nature of such a dichotomy. the dichotomy sheds no light on the substance of the employeremployee relationship or the actual work being carried out. the supreme court should find, as in henthorn, that such a distinction provides no 188 id. at 685 (“cases that have held that prisoner-laborers were not ‘employees’ under the flsa have generally involved inmates working for prison authorities or for private employers within the prison compound.”). 189 id. (“[c]ases in which courts have found that the flsa does govern inmate labor have involved prisoners working outside the prison for private employers.”); see also carter, 735 f.2d at 13–14 (prisoner working as a teaching assistant at a community college that paid his wages directly to him could be an ‘employee’ under flsa). 190 carter, 735 f.2d at 14—15. 191 gilbreath, 931 f.2d at 1325–31 (holding that inmates employed at a private plasma center located within the prison were not protected by the flsa); see also danneskjold, 82 f.3d at 39 (the second circuit also modified carter in a subsequent holding and rejected the inside vs. outside as well as voluntary vs. compelled distinction within the context of “services” by holding that “the flsa does not apply to prison inmates in circumstances in which their labor provides services to the prison, whether or not the work is voluntary, whether it is performed inside or outside the prison, and whether or not a private contractor is involved.”). 192 henthorn v. dep't of navy, 29 f.3d 682, 685 (d.c. cir. 1994). 193 id. at 685–686. 2023] prison labor 927 adequate basis for deciding the question of flsa coverage. in lieu of these various dichotomies that the circuit courts have fashioned, the following section will propose a new “economic reality” test for the court to adopt in the prison laborer context. v. a new “economic reality” test: a “but-for” test as established in the preceding sections, the flsa’s stated purposes, preventing unfair competition, ensuring minimum standards of living, and preventing labor strikes apply to all categories of prison labor that were outlined in part i. after establishing as a general principle that incarcerated workers do come within the scope of the flsa, the next step is to determine a method to evaluate which work satisfies the test for employment for the purposes of flsa’s minimum wage provisions. as part iv showed, the bright-line rules that the circuit courts have resorted to thus far have been proven to be formalistic and unhelpful and must be replaced with a new test. based on the premise that the stated goals of the flsa apply with equal force to prison laborers and free-world workers, a straightforward and simple test the supreme court should adopt is whether, in connection with the labor performed, an incarcerated worker would be considered an “employee” under the flsa but for their inmate status. in other words, if a certain kind of employment would be protected by the flsa in the free world, it should also be protected within the prison system. by using this approach that is based on an anti-discrimination framework between incarcerated and non-incarcerated workers, the supreme court need not provide any further rulings on what specific test for “employment” the lower courts are to adopt. circuits that have adopted the bonnette factors may continue using those factors while other circuits that rely on other common law definitions for “employee” may use those. where the flsa does not exempt prisoners as a class nor has congress ever referred to them in subsequent changes to the act, the main goal is to prevent any discriminatory application of the act between inmates and non-inmates. under this test, it may still be validly found that certain inmates do not qualify as employees. for example, in danneskjold v. hausrath (2d cir. 1996),194 danneskjold worked for a college consortium as a clerk-tutor where he assisted and tutored student inmates and assisted professors with academic matters and corrected papers. the second circuit found that danneskjold did not qualify as an “employee.” where in the non-prison context, teachers and graduate teaching assistants are exempt from the flsa,195 under the new but for test, danneskjold may likewise be found to not qualify as an employee under the act. this test provides uniformity and is a simple solution as it incorporates the test for “employee” that courts have already been accustomed to using in the non-prison context. furthermore, it ensures that incarcerated workers are not punished for 194 danneskjold, 82 f.3d at 40. 195 see fact sheet #17s: higher education institutions and overtime pay under the fair labor standards act (flsa), u.s. dep’t of lab. (2019), https://www.dol.gov/ agencies/whd/fact-sheets/17s-overtime-educational-institutions [https://perma.cc/68l3ez8c]. 928 colum. j. race & l. [vol. 13:893 incarceration itself by being further denigrated to the status of involuntary servitudes. conclusion while the u.s. prison system is a government institution that is used to regulate crime, it is also a network of facilities across the country that harbors a hidden and unpaid labor force. it comprises hundreds and thousands of full-time incarcerated workers who, at minimum, produce $2 billion worth of industrial output while receiving anywhere from zero to a few dollars an hour. our prison system relies on incarcerated workers to fund itself by assigning individuals to “prison housework” and by forcing workers to contribute a portion of their earnings to room and board. corporations that are focused on increasing their bottom-line try to save on labor costs by replacing free world workers with incarcerated workers. even city and state governments, especially in the face of labor shortages and budget cuts, have routinely used incarcerated workers to provide municipal services, once again, without the benefit of minimum wage and other employee protections that are otherwise guaranteed to workers by the flsa. historically, incarcerated workers have not been covered by the flsa. since its enactment in 1938, both congress and the supreme court has been silent on whether incarcerated workers are included within the definition of “employee” under the flsa. furthermore, the circuit courts have failed to agree upon any concrete test to determine the flsa coverage for incarcerated workers. instead, they have developed conflicting standards and formalistic distinctions. the result has been the creation of a system that ensures a constant influx of individuals who may be subjected to involuntary servitude. the supreme court must resolve the discrepancies between the circuit courts and rule in favor of extending the flsa’s minimum wage provisions to prison laborers. rather than adopting any distinct factor test for determining employment in the prison context, the supreme court should simply adopt the but-for discussed above in order to minimize discrimination between free-world and prison laborers, thus effectively eliminating the lingering existence today of involuntary servitude for the punishment of a crime. short of amending our constitution and abolishing the thirteenth amendment, finding a way to incorporate prisoners into an existing federal framework for labor protections is the most expedient way to push back against the exploitation of incarcerated workers. entitling incarcerated workers to minimum wage protections under the flsa would make the entire institution of prison labor far less profitable for private or publicly owned corporate entities that profit from the prison industry. corporations form a strong and powerful constituency that has for decades, lobbied for harsher punishment and sentencing schemes that have exacerbated the problem of mass incarceration, over policing, and overcrowding in prisons. offering flsa coverage to incarcerated workers would prevent state governments and the federal government from using prisoners to perform 2023] prison labor 929 “housework” in order to offset the costs of a financially unsustainable penal framework. the significance, therefore, of affording inmates protection under the flsa, is to eliminate several of the financial incentives that exist to continuously funnel and keep individuals–––who disproportionately come from minority communities––– through the criminal legal system. at present, the judiciary is better equipped to resolve this issue than is the legislature.196 one may argue that congress could pass additional legislation to broaden the reach of the flsa to cover incarcerated workers. however, in line with the analysis in this note, there is no need for the flsa to be revised. it has been nearly a century since congress first passed the flsa. to date, in no subsequent amendment has congress explicitly exempted prisoners from coverage, despite many opportunities to do so. furthermore, in no other significant employment statute are prisoners explicitly excluded from the definition of “employee.” the congressional intent behind and language of the flsa are sufficiently clear—they have simply been misinterpreted by the circuit courts. the supreme court must now step in to correct the confusion amongst the lower courts and rule that the language and congressional intent behind the flsa point towards extending coverage to incarcerated workers. 196 see brakkton booker, democrats push 'abolition amendment' to fully erase slavery from u.s. constitution, npr (dec. 3, 2020), https://www.npr.org/ 2020/12/03/942413221/democrats-push-abolition-amendment-to-fully-erase-slavery-from-us-constitution [https://perma.cc/g8v2-mne7]. in 2020, congress made recent efforts to amend the 13th amendment to eliminate the loophole that permits the continued existence of involuntary servitude. a joint resolution, called the “abolition amendment” was introduced by democrats in the house and senate to remove the punishment clause from the 13th amendment. no republican however in either chamber signed on to the measure, and there have been no significant efforts to reintroduce this resolution in subsequent sessions of congress till date. given the political polarization of the current era, congress is unlikely to pass such a resolution in the foreseeable future. any workarounds to the 13th amendment must therefore come from the judiciary. columbia journal of race and law vol. 12 june 2022 no. 1 a quiet revolution: how judicial discipline essentially eliminated foster care and nearly went unnoticed melissa carter, cristopher church, & vivek sankaran “of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. it would be better to live under robber barons than under omnipotent moral busybodies. the robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.” –c. s. lewis1 i. introduction.......................................................................................497 ii. the juvenile court judge: gatekeeper or collaborator ...................499 iii. judge gray’s impact on the orleans parish foster care system ....503 a. an overview of louisiana’s statutory preadjudication scheme .......................................................................................503 b. the disciplined legal process judge gray instituted ..............505 c. the outcomes that followed judge gray’s reorganization of the orleans parish juvenile court process for civil child abuse and neglect proceedings .................................................510 iv. lessons for the field .........................................................................513 v. conclusion .........................................................................................515 1 c.s. lewis, god in the dock: essays on theology and ethics 292 (1970). 2022] a quiet revolution 497 i. introduction this piece proposes a rather unremarkable concept: that juvenile court judges can safely reduce the number of children entering foster care by faithfully and rigorously applying the law. what is remarkable, however, is that judges often fail to perform this core function when a state child welfare agency separates a child from their family. despite evidence that removal decisions are not carefully scrutinized by courts,2 the child welfare community continues to de-emphasize the role of the judge as an impartial gatekeeper—as the law requires—and instead encourages a different sort of jurist: one with distracting leadership responsibilities on and off the bench; one with responsibility to oversee individual cases but also advocate for broad systemic reform; one who is actively involved with families, making clinical decisions regarding their personal affairs. in this piece, we invite judges to explore whether such extraneous responsibilities advance justice for families, or instead create an inviting space for “omnipotent moral busybodies” to emerge.3 this piece argues that the emphasis on that different sort of jurist is misplaced, and that judges must prioritize their role as gatekeeper above all else, particularly during the preadjudication phase of civil child abuse and neglect proceedings.4 the piece makes its argument by focusing on the work of judge ernestine gray, who sat on the orleans parish juvenile court for nearly forty years. judge gray’s disciplined approach to rigorously applying the law during the preadjudication phase transformed new orleans parish’s intervention in families into what such intervention is meant to be: a rare, time-limited event. judge gray’s disciplined approach led new orleans to become the first major city in the united states to essentially eliminate foster care. in 2011, there were over two hundred children in foster care.5 2 see, e.g., cutler inst. for child & fam. pol’y, muskie sch. pub. serv., & ctr. child. & the law, am. bar assoc., michigan court improvement program reassessment 102–103, 105 (2005) (reporting from a state-wide judges’ survey that 85.1% of judges surveyed never or rarely made an affirmative finding that the agency failed to make reasonable efforts to reunify even when they believed the agency did not make such efforts); j. mary tabor, transformation in child welfare: iowa courts’ pilot project on juvenile justice shows reduction in termination of parental rights cases, in 80 iowa law. 10–12 (iowa state bar assoc., 2020) (discussing positive changes from a pilot initiative setting forth four questions for juvenile court judges to ask child welfare agency staff prior to approving an ex parte removal request, for the purpose of preventing the unnecessary removal of children from their parents). for legal scholarship considering courts’ role in family separation, see paul chill, burden of proof begone: the pernicious effect of emergency removal in child protective proceedings, 42 fam. ct. rev. 540 (2004); vivek s. sankaran & christopher e. church, easy come, easy go: the plight of children who spend less than thirty days in foster care, 19 u. pa. j.l. & soc. change 207 (2016); shanta trivedi, the harm of child removal, 43 n.y.u. rev. l. & soc. change 523, 552–62 (2019); vivek sankaran, christopher church & monique mitchell, a cure worse than the disease? the impact of removal on children and their families, 102 marq. l. rev. 1163, 1177–89 (2019). 3 lewis, supra note 1. 4 we use the term “preadjudication phase” to refer to all hearings that precede the formal hearing on the merits when the court finds as a matter of law that a child is an abused, neglected, or dependent child. 5 child. bureau, u.s. dep’t of health & hum. servs., adoption and foster care analysis and reporting system (afcars) foster care files, federal fiscal years 2010– 2020, nat’l data archive on child abuse & neglect [hereinafter afcars dataset], https://www.ndacan.acf.hhs.gov/datasets/datasets-list-afcars-foster-care.cfm [https://perma. cc/jsv7-vs64] (data on file with corresponding author). unless otherwise noted, afcars 498 colum. j. race & l. [vol. 12:1 by march of 2017, just twenty children were in foster care, in a city with more than 75,000 children.6 the significance of this reduction cannot be overstated. with 285 children in foster care, new orleans would have a foster care utilization rate comparable to statewide rates in louisiana.7 with 481 children in care, its foster care utilization rate would be comparable to the national rate.8 instead, on march 31, 2020, the city had just forty-nine children in care, one-tenth of the national rate.9 even more notably, children who do enter foster care in the orleans parish typically spend a matter of weeks separated from family, in contrast to the years-long stays typical for children in care in other jurisdictions.10 what exists today in new orleans is not a foster care system by any familiar standards. thus, this piece offers an opportunity to better understand judge gray’s approach and its impact on children and families in her community. her approach provides lessons for juvenile court judges across the country. the first part highlights the current pressures juvenile court judges face to take on a broader role than their judicial oath or child welfare’s legal framework requires. it assesses how those pressures have resulted in a juvenile court that risks becoming a “tyranny sincerely exercised for the good of its victims.”11 the second part closely examines judge gray’s approach and details its impact on the new orleans foster care system. it includes an overview of administrative data and a discussion of the practices, policies, and values judge gray brought to the bench. it also outlines the argument that these practices led to significantly less reliance on foster care in orleans parish—to the point of its near-elimination— without jeopardizing children’s safety. the piece concludes with a plea for judges to embrace their role as gatekeeper, rigorously and dispassionately enforcing the law to ensure that children enter and remain in foster care only when the state produces evidence that meets the high burden required to justify family separation. datasets utilized in this piece were made available by the national data archive on child abuse and neglect (“ndacan”), cornell university, ithaca, new york. data from the afcars foster care files are originally collected by state child welfare agencies pursuant to federal reporting requirements. authors and collaborators at fostering court improvement have analyzed the data, and analyses are on file with them. neither the collection of the original data, the archive, cornell university, or its agents or employees bear any responsibility for the analyses or interpretations presented here. 6 id. at ffy 2017. 7 id. 8 id. 9 the figure of forty-nine children in care in the orleans parish represents a rate of 4.8 children in care for every 10,000 children in the population, compared to the national rate of 57.6 children in care for every 10,000 in the population. afcars dataset, supra note 5, at ffy 2020. 10 among the eighty-five children discharged in the orleans parish during the most recent twelve months, the median length of stay was 0.4 months, compared to 15.5 months nationally. id. 11 see lewis, supra note 1, at 292. 2022] a quiet revolution 499 ii. the juvenile court judge: gatekeeper or collaborator the role of the judge occupies a place of central concern for lawyers and their clients. a lawyer’s knowledge of the tendencies, preferences, and philosophy of the judge constitutes an essential component of legal strategy and informs the tactical presentation of a case. a casual inquiry into the common wisdom about the role of a judge often elicits metaphors like “umpire” or “referee.”12 generally speaking, the traditional judicial role is understood as one of presiding impartially over a case in order to ensure the integrity of the process, protecting the rights of the parties, interpreting and applying the law, and making individualized legal determinations to resolve a conflict.13 the origins and evolution of the juvenile court have nurtured an alternative model and different expectation for the judicial role. progressive reformers lauded the juvenile court as an innovation, distinguished as the “first attempt to provide diagnosis and training to delinquents.”14 this is the origin story of the juvenile court as a problemsolving court. exercising its parens patriae authority, the court intervened in the lives of wayward youth to provide protective supervision and rehabilitation.15 it advanced these goals as both necessary and socially desirable. as observed by judge julian mack, one of the nation’s first juvenile court judges, “[t]he problem of the delinquent child, though juristically comparatively simple, is, in its social significance, of the greatest importance, for upon its wise solution depends the future of many of the rising generation.”16 from its very beginning, the purpose of the juvenile court was defined as much by an ambition to address a social problem as by the discipline of the law. the court “provided a setting in which the routine practices of child-saving established in the nineteenth century could be continued in a more legitimate form.”17 put directly, the jurisdictional authority of the juvenile court inherently allows it to act as an “omnipotent moral busybody.”18 the juvenile court judge carries out their role guided by a sense of legal and moral obligation to satisfy the dual societal and institutional aims of child protection. the judge’s task is to serve as an arbiter of conflict, but as many practitioners and scholars have observed, that is not the full measure of the juvenile court judge’s role.19 overtime, the juvenile court judge’s role has blossomed into an expansive responsibility, combining the 12 see, e.g., theodore a. mckee, judges as umpires, 35 hofstra l. rev. 1709 (2007). 13 see abram chayes, the role of the judge in public law litigation, 89 harv. l. rev. 1281, 1286 (1976) (discussing the traditional role of the appellate court judge as a passive arbiter of established law). 14 john r. sutton, the juvenile court and social welfare: dynamics of progressive reform, 19 law & soc’y rev. 107, 108 (1985). 15 see esther k. hong, a reexamination of the parens patriae power, 88 tenn. l. rev. 277, 278 (2021). 16 julian w. mack, the juvenile court, 23 harv l. rev. 104, 104 (1909). 17 sutton, supra note 14, at 108. 18 lewis, supra note 1. 19 see, e.g., jane m. spinak, judicial leadership in family court: a cautionary tale, 10 tenn. j.l. & pol’y 47, 49 (2014). 500 colum. j. race & l. [vol. 12:1 traditional judicial roles of process manager, adjudicator, and enforcer of rights, with a responsibility to co-create solutions for families and lead system improvement efforts. juvenile court judges are expected to act as proactive problem-solvers and to fulfill additional administrative, collaborative, and advocacy duties.20 as judge anthony sciolino, a retired family court judge, writes colloquially, “[a]t various times . . . a judge is called upon to act in the role of salesperson, substitute parent, cheerleader, arm twister, evangelist, planner, fundraiser (within the constraints of the canons of judicial ethics) and consensus builder.”21 these multiple roles invite, and perhaps command, the juvenile court judge to depart from the “impartial, restrained and objective judge in the common law tradition and shift judicial responsibility from individualized legal determinations to a broader conception of judicial leadership.”22 rationalized by the therapeutic orientation of the juvenile court, the contemporary conception of judicial leadership in the family separation system has been organized around the principle of “collaboration.” in its influential 2004 recommendations for strengthening court oversight of child welfare cases, the pew commission on children in foster care called for “incentives and requirements for collaboration between courts and child welfare agencies on behalf of children in foster care.”23 the recommendations gained traction with policymakers, resulting in a federal requirement for courts and child welfare agencies to “demonstrat[e] meaningful and ongoing collaboration.”24 guidance expounding on the requirement defines “meaningful, ongoing collaboration” to mean that courts and agencies “identify and work toward shared goals and activities to increase the safety, permanency, and well-being of children in the child welfare system.”25 moreover, the explicit expectation of such collaboration consists of “institutional and infrastructural changes that lead to measurably improved outcomes for the children and families that the state is serving.”26 this dynamic has forged an enduring link between the role of the juvenile court judge and the advancement of individual and systemic outcomes. and collaboration between the judicial and executive branches is the predetermined manner for the fulfillment of this role and achievement of these outcomes. 20 see sophia i. gatowski et al., nat’l council of juv. & fam. ct. judges, enhanced resource guidelines: improving court practice in child abuse and neglect cases 8 (2016) [hereinafter ncjfcj, court practice guidelines]; see also remarks of judge leonard p. edwards at the presentation of the william h. rehnquist award for judicial excellence (nov. 18, 2004), reprinted in 5 j. ctr. fams. child. & the cts. 169 (2004). 21 anthony j. sciolino, the changing role of the family court judge: new ways of stemming the tide, cardozo pub. l. pol’y & ethics j. 395, 403 (2005). 22 spinak, supra note 19, at 49. 23 pew comm’n on child. in foster care, fostering the future: safety, permanence and well-being for children 36 (2004), https://www.pewtrusts.org/-/ media/legacy/uploadedfiles/phg/content_level_pages/reports/0012pdf [https://perma.cc/ s8e6-c47x]. 24 42 u.s.c. § 629h(b)(3). 25 admin. for child. & fams., u.s. dep’t of health & hum. servs., acyf-cbpi-16-05, instructions for state courts applying for court improvement program (cip) funds for fiscal years (fys) 2017–2021, at 6 (oct. 27, 2016). 26 id. at 7. 2022] a quiet revolution 501 an expansive body of practice guidance has developed as a complement to formal policy, exalting collaboration as the hallmark of judicial leadership. the national council of juvenile and family court judges (“ncjfcj”) reinforces the emphasis on collaboration time and again.27 it is revered as a best practice, endorsed as the method by which juvenile court judges hold parties and other stakeholders responsible for achieving individual and systemic outcomes related to child safety, permanency, and well-being.28 the ncjfcj’s enhanced resource guidelines instruct that juvenile court judges, in order to effectively fulfill their roles “as gatekeepers to the foster care system and guardians of the original problem-solving court,” must collaboratively “engage families, professionals, organizations, and communities to effectively support child safety, permanency, and well-being.”29 it is clear that this view of the judge as lead collaborator goes beyond an aspiration: judges, advocates, and stakeholders widely accept collaboration as the gold standard for achieving not only results that are legally mandated for children and families but also those that are desired by the broader child welfare community. though rarely questioned, collaboration may not always prove to be beneficial for the goals to which it is keyed. the success of any collaboration results in part from situational factors, including the timing, the capacity and competence of participants, the frequency and quality of communication, and the shared focus on clear, common goals.30 these factors are neither consistently present nor sufficiently controllable in the context of a child welfare case.31 the incongruency between the features of a successful model of collaboration and the nonlinear, complex nature of a dependency proceeding can cause inconsistent rulings, unnecessary delay, and an erosion of confidence in the juvenile court. all of these consequences threaten the integrity of the process and the quality and timeliness of outcomes for children and families. most significantly, a collaborative model can compromise and distort the aims of the proceedings.32 a perception, by the parties, of the judge as a collaborative partner lends itself to a false presumption that the court can solve the complex social problems that brought the family before it.33 yet, as judge mack recognized from the outset, “[m]ost of the children 27 see ncjfcj, court practice guidelines, supra note 20, at 11 (recommending collaboration “among all aspects of the court and child welfare system”). 28 id. at 17; see also sophia i. gatowski et al., nat’l council of juv. & fam. ct. judges, enhanced resource guidelines: child welfare caseworkers’ companion guide 21 (2020) (“the role of the juvenile and family court judge is a unique one and it combines judicial, administrative, collaborative, and systemic advocacy roles. by taking on these roles, the juvenile and family court judge holds all stakeholders, including the court, responsible to ensure safe, timely permanency and well-being for children.”). 29 ncjfcj, court practice guidelines, supra note 20, at 14. 30 see dorothy norris-tirrell, assessing multiple dimensions of collaboration, 35 j. health & hum. servs. admin. 4, 4–5 , 7 (2012). 31 see generally suparna malempati, the illusion of due process for children in dependency proceedings, 44 cumb. l. rev. 181 (2014) (describing the complexity of dependency proceedings by reference to the realities of being governed by multiple federal and state laws, unfolding through an elaborate procedural scheme with adversarial positions emerging at any time and changing over the course of an extended case time frame, and involving multiple decision points). 32 see spinak, supra note 19, at 70–75. 33 for a fuller discussion of these social problems, see id. 502 colum. j. race & l. [vol. 12:1 who come before the court are, naturally, the children of the poor,”34 and even the modern-day juvenile court lacks the resources and tools to address issues of poverty or to remediate chronic family and community adversity. this results in a misalignment of expectation that is exacerbated by an inherent power imbalance. a collaborative orientation can obscure the court’s coercive authority and deceive the parties and their legal representatives into believing that everyone in the courtroom is a co-equal when, in fact, the judge commands the awesome power to separate and reconfigure the child’s family. the overemphasis on collaboration can also distort the judge’s own sense of responsibility for legal decisions, lessening or even undermining the legal rigor needed to ensure a disciplined adherence to the law and to reach decisions based on properly presented evidence. the traditional judicial role is one characterized by a passive judge, with limited involvement in fact-finding, who decides issues identified by the parties in accordance with formal rules and statutes.35 as commonly conceived, the role of the judge is that of a “neutral umpire, charged with little or no responsibility for the factual aspects of the case or for shaping and organizing the litigation for trial.”36 in contrast, a problem-solving orientation to the role is necessarily outcome-determinative. the belief that the judge can and should play a role in trying to solve the problems reflected on the court docket may habituate decision-making based on therapeutic impulse. humanitarian motives may displace more proper inquiry into whether a clear legal basis for intervention in a family exists or scrutiny as to the sufficiency of the child welfare agency’s efforts to keep families together. in this way, “collaborations blur the adversarial opposition of the parties and complicate the judge’s neutrality.”37 the imbalance increases the risk of greater and unnecessary intrusion into family privacy, unwarranted family separation, and infliction of trauma. these risks are highest at the preadjudication phase when the “friendly interest of the state”38 is incongruous with the constitutional rights of parents and children. during the preadjudication phase, the state has not yet proven a parent to be unfit and bears the burden of doing so. courts cannot presume that such unfitness warranting the need for judicial intervention exists. thus, at this stage, the court’s primary role must be to examine whether the state has met the legal standard justifying such intervention. the next part explores the dramatic outcomes that can occur when a judge—in this case judge gray—brings a disciplined approach to the preadjudication phase that forces the state to meet the evidentiary burden required to justify family separation. judge gray’s 34 mack, supra note 16, at 116. 35 see abram chayes, the role of the judge in public law litigation, 89 harv. l. rev. 1281, 1286 (1976). 36 id. 37 misty johnson grayer, street-level judgments: how the role of judges influences the decision to collaborate in juvenile court 48 (aug. 31, 2019) (ph.d. dissertation, university of kansas), https://kuscholarworks.ku.edu/bitstream/handle/1808/ 31364/grayer_ku_0099d_16767_data_1.pdf?sequence=1&isallowed=y [https://perma.cc/ ldm9-ab7s]. 38 e.g., mack, supra note 16, at 117. 2022] a quiet revolution 503 approach delivers a blueprint for judges across the country to embrace their role as sentinels during the preadjudication phase. iii. judge gray’s impact on the orleans parish foster care system a. an overview of louisiana’s statutory preadjudication scheme this piece uses the term preadjudication phase to refer to all legal proceedings that occur between the initial court order authorizing removal of a child from the custody of their parent(s), up until the adjudication when a court holds a full evidentiary hearing to determine whether the allegations in the petition are true. in louisiana, there are two statutory pathways to remove a child on an emergency basis.39 first, a police officer or probation officer of the court may take a child into custody without a court order when they “have reasonable grounds to believe that the child’s surroundings are such as to endanger his welfare and immediate removal appears to be necessary for his protection.”40 second, the other pathway begins when a police officer, district attorney, or child protective services (“cps”) employee files a complaint with the court that contains facts demonstrating there are “reasonable grounds to believe that the child is in need of care and that emergency removal . . . is necessary to ensure the child’s protection.”41 the court is required to determine whether the cps agency has made reasonable efforts to prevent or eliminate the need for removal.42 if the court determines that the child’s welfare cannot be safeguarded without removal, the court will issue an instanter order directing that child to be placed in the home of a relative or in foster care.43 regardless of which pathway is utilized, the parents must be notified of the time and place of the continued custody hearing.44 the continued custody hearing must be held within three days of the child’s removal.45 during the continued custody hearing, the court is required to undertake a number of inquiries.46 the state has the “burden of proving the existence of a ground for continued custody.”47 the court evaluates grounds for continued custody on a “necessity of care” standard: the state must meet this standard by showing “reasonable grounds to believe that the child is in need of care and that continued custody is necessary for his safety and protection.”48 during this hearing, the child and their parent(s) may “introduce evidence, call witnesses, be heard on their own behalf, and 39 most, if not all, children are removed on an emergency basis. however, a nonemergency removal would involve a hearing with all parties where the child protective serices agency has the burden of producing sufficient evidence to remove the child from the custody of their parent(s). 40 la. child. code ann. art. 621 (2006). 41 id. art. 619 (2014). 42 id. 43 id. 44 id. (removal pursuant to an instanter custody order); id. art. 621 (removal without a court order). 45 id. art. 624 (2018). 46 first, the court must ask each person before it whether they “know or have reason to know that the child is an indian child,” and thus subject to the protections in the federal indian child welfare act. id. art. 624(d). 47 id. art. 624 (2018). 48 id. art. 626 (2014). 504 colum. j. race & l. [vol. 12:1 cross-examine witnesses called by the state.”49 finally, the court is required to advise the parents, and potentially the child, of a number of rights and responsibilities related to the proceedings.50 louisiana law prioritizes placement of the child into the home of a relative over placement in foster care, pending the continued custody hearing.51 relatives who are willing to take custody of a child also seem to have standing to intervene in a continued custody hearing to provide “evidence of a willingness and ability to provide a wholesome and stable environment for the child and to protect the health and safety of the child.”52 this preference for relative placement or custody continues after the continued custody hearing.53 the statutory preference for relatives is not reflected in the placement data. of the sixty-four children removed during 2017 who spent less than a month in foster care in orleans parish,54 seventy percent were placed in non-relative foster care during their brief stays.55 however, orleans parish juvenile court does often award custody to relatives during the preadjudication phase. among the sixty-seven children removed during 2017 who spent less than a month in foster care, fifty-nine percent were returned to their parent(s), while thirty-two percent were discharged to the custody of a relative.56 this is double the statewide rate of discharges to relatives during the same time frame, and well above national rates.57 this statutory scheme provides the framework in which judge gray operated throughout her career. although there are certainly differences across jurisdictions, many of which are significant, louisiana’s statutory scheme generally reflects how children are removed across this nation. some professionals are afforded the power to remove children without a court order, while others are required to seek court approval during an ex parte proceeding.58 once a child is removed, the court will typically hold a hearing with all parties present within a few days of that removal to determine whether removal was warranted and whether continued custody is necessary.59 cps is tasked with notifying relatives that a child has been removed,60 and the court is often tasked with ensuring such notification has taken place. 49 id. art. 624 (2014). 50 id. art. 625 (2015). 51 id. art. 622(b) (2015); see also id. art. 622(a) (2015) (going so far as to allow a relative “or other suitable individual” to seek an ex parte court order to take provisional custody of the child pending the continued custody hearing). 52 id. art. 624(h) (2015). 53 id. art. 627(b)(2014). 54 a petition must be filed within thirty days of the continued custody hearing. id. art. 632(a) (2014). thus, children that are discharged within thirty days of their removal would be discharged during the preadjudication phase. 55 afcars dataset, supra note 5, at ffy 2017. 56 id. 57 id. 58 see sankaran & church, supra note 2, at 214. 59 id. 60 42 u.s.c. § 671(a)(29). 2022] a quiet revolution 505 without any change to this statutory scheme, judge gray transformed the orleans parish foster care system. the next section provides an overview of her approach. b. the disciplined legal process judge gray instituted ernestine gray was first elected to the orleans parish juvenile court in 1984. throughout her thirty-five year tenure with the court, judge gray has enjoyed national recognition by way of numerous awards from, and leadership positions with, prominent child welfare organizations.61 by her own account, however, her first decade on the bench was not worthy of recognition.62 judge gray is quick to reference a 1997 new york times article that levied an unwavering critique of the orleans parish juvenile court, dubbing it the “worst juvenile court system in the country.”63 although embarrassed by it at the time, judge gray now points to this article as one of the early events that triggered her interest in redesigning how the orleans parish juvenile court managed civil child abuse and neglect proceedings.64 her interest was initially focused on the preadjudication phase of such proceedings.65 judge gray’s first step was to establish the child protection division of the court, which began operating in 2011.66 the judges within that division of the orleans parish juvenile court follow a monthly rotation to handle child welfare agency requests for ex parte removals, which as discussed in the previous section, are granted through the issuance of a written or oral instanter order.67 that same judge would then preside over a continued custody hearing within three days of the child’s removal. during the hearing, the state has the burden of proving “reasonable grounds to believe the child was in need of care and that continued custody was necessary for the child’s safety and protection.”68 initially, for the sake of efficiency and expediency, judge gray scheduled what she called a “second shelter” hearing to occur roughly 61 see, e.g., j. richard alan ginkowski, aba criminal justice section honors judge ernestine s. gray’s lifetime of service, am. bar assoc. (jan. 8, 2021), https://www.american bar.org/groups/judicial/publications/judicial_division_record_home/2021/vol24-2/cjs-honorse-gray/ [https://perma.cc/zar4-73c4] (charles english award); the honorable ernestine gray honored with the aba’s charles r. english award, nat’l assoc. women judges (jan. 6, 2021), https://www.nawj.org/blog/newsroom/news/the-honorable-ernestine-grayhonored-with-the-abas-charles-r-english-award [https://perma.cc/2qkc-gbwy] (further noting judge gray’s prior awards such as casey excellence for children leadership award). 62 author notes from interview with judge ernestine gray (apr. 30, 2020) (on file with corresponding author) [hereinafter author’s notes from interview with judge gray]. 63 fox butterfield, few options or safeguards in a city’s juvenile courts, n.y. times (july 22, 1997), https://www.nytimes.com/1997/07/22/us/few-options-or-safeguardsin-a-city-s-juvenile-courts.html [https://perma.cc/j3jy-82tc]. 64 author’s notes from interview with judge gray, supra note 62. 65 although judge gray credits the new york times article as a sort of turning point to her approach in civil child abuse and neglect proceedings, it took over a decade for her to have the seniority and autonomy to institute major changes. 66 author’s notes from interview with judge gray, supra note 62. 67 la. child. code ann. arts. 619–20. an oral instanter order can be issued only in “exceptional circumstances,” and an affidavit confirming the facts presented orally must be filed within twenty-four hours of the ex parte removal order. 68 id. art. 624(a) (time frame for hearing); id. art. 624(e) (burden of proof); id. art. 626 (a) (grounds for continued custody). 506 colum. j. race & l. [vol. 12:1 fourteen days after the continued custody hearing.69 judge gray presided over all second shelter hearings, and every subsequent foster care proceeding, for all children that remained in foster care beyond the continued custody hearing in the orleans parish, regardless of the initial judge assignment on the case.70 as the data discussed below show, very few children remained in foster care after this second shelter hearing. judge gray described the purpose of the hearing much like the purpose of a pretrial conference, with the primary goal of determining whether cps was prepared to file a timely petition. its effect, however, is more aptly described as part of the ongoing vigorous preadjudication gatekeeping function inherent in judge gray’s approach, an approach that commonly resulted in children being returned to their families within weeks of their removal.71 as part of an ongoing casey family programs study,72 a team consisting mostly of lawyers—including this piece’s co-authors—reviewed and coded approximately thirty orleans parish continued custody and second shelter hearings. what emerged from court observations and other evidence was a clear judicial philosophy: judge gray approached every hearing over which she presided with a laser focus on ensuring that children were only placed in foster care when the state proved its burden of the necessity of care. she articulated this in a formal interview with casey family programs: when it comes down to it, i apply the law rigidly and do what i believe the law requires, which means not removing children from their families unless absolutely necessary. sometimes there is tension between what i consider to be the appropriate thing in a case and what someone else might consider appropriate: if the child protection agency can’t offer evidence that a child’s safety is imminently at risk, i send the child home to their family, consistently.73 69 author’s notes from interview with judge gray, supra note 62. 70 id. 71 a carefully calibrated foster care system would not remove children from their parents for a few weeks, only to return them home, particularly in light of the welldocumented harm of removal. see sankaran & church, supra note 2, at 210–213; trivedi, supra note 2, at 527–51; sankaran, church, & mitchell, supra note 2, at 1165–70. the authors suspect that if judge gray had presided over every hearing from the very outset of the case, including the ex parte request for removal, the number of children placed in foster care would have been reduced significantly. 72 in 2020, casey family programs funded a team of researchers to document judge gray’s processes for presiding over civil child abuse and neglect proceedings in the orleans parish, and to determine whether a causal relationship existed between those processes and the significant reduction in the number of days children were separated from their family due to foster care placement. the lead researchers were vivek sankaran, melissa carter, and andrew barclay. josh gupta-kagan and the honorable (ret.) karen baynes also provided research support. christopher church, shemeka sorrells, ann stanley, the honorable (ret.) robin sage, alli schisler, and selena childs served as casey family programs staff support. the study is ongoing as of the time of this publication. 73 how can the judiciary help narrow the front door to child protection? q&a with judge ernestine s. gray, orleans parish, louisiana, casey fam. programs (dec. 4, 2020) [hereinafter q&a with judge gray] (emphasis added), https://www.casey.org/judgegray-interview [https://perma.cc/la37-vrhb]. 2022] a quiet revolution 507 central to her judicial philosophy is the belief that “[e]ach family has the right to care for and protect their children without unreasonable governmental interference.”74 thus, during the preadjudication phase, she considered it to be her paramount—and perhaps only—obligation to enforce constitutional and statutory standards governing family separation, and where separation was necessary, to ensure that children were placed with kin as quickly and safely as possible.75 in her view, “[f]amilies deserve not to be in court if they don’t have to be there.”76 based on the initial set of hearings the team reviewed, some consistent findings emerged. first, judge gray strictly enforced the state’s statutory burdens. a number of exchanges between judge gray and the parties stood out to the reviewers. during one hearing, for example, she chastised the agency for producing stale evidence by relying solely on a family’s prior history with cps to justify family separation.77 she remarked, “you’re not entitled to rely on those,” and told the agency that they “can’t come here unless you’re certain” of the circumstances that exist at the time of the current matter.78 in another hearing, she found that the agency had not made reasonable efforts to prevent a child’s removal because the agency had failed to “rule out” other options.79 judge gray noted on the record: “you don’t go the measure of getting a hold order unless you absolutely have to. and you have to rule out all of those other things in order to get to that point.”80 in a third case in which a caseworker failed to remember details about what a doctor had told him regarding a child’s injuries, the attorney for the agency asked the court to give the agency the benefit of the doubt.81 judge gray responded by forcefully reminding everyone that the agency bore the burden of proof.82 regardless of what she might have believed was best for a child, she saw her primary role as one of a foster care sentinel, standing guard over foster care’s front door. second, judge gray faithfully enforced evidentiary rules. for example, during the same continued custody hearing, the testifying case manager was clearly struggling to remember certain details that the department attorney wanted in the record.83 what immediately followed seemed routine: the case manager opened a binder and began reviewing 74 id. 75 this is, of course, consistent with the louisiana children’s code, which directs the court to place the child in the “provisional custody of a suitable relative” as early as the issuance of the instanter order if the court determines the child’s welfare cannot be safeguarded without removal. la. child. code ann. art. 619(b)(2). 76 author’s notes from interview with judge gray, supra note 62. 77 video recording: 1004-cc, held by orleans parish juvenile court (may 30, 2019) (on file with corresponding author). the casey family programs researchers secured video recordings of hundreds of hearings held in the orleans parish juvenile court between 2011 and 2020. the name of the recording is based on the assignment of a random number to each hearing, followed by -cc for continued custody hearings and -ss for second shelter hearings. 78 id. 79 state ex rel. c.w., 2002-2419, p. 4 (la. app. 4 cir. 05/14/03); 848 so.2d 70, 73. 80 id. 81 video recording: 1000-cc, held by orleans parish juvenile court (feb. 21, 2017) (on file with corresponding author). 82 id. 83 id. 508 colum. j. race & l. [vol. 12:1 his notes, presumably to refresh his memory.84 judge gray immediately interrupted the case manager, both admonishing him and reminding everyone that a witness is not allowed to reference notes or other materials without the court’s express permission.85 in judge gray’s courtroom, the rules of evidence were neither aspirational nor optional; they were strictly enforced. third, judge gray openly shared the value she placed on ensuring that children should only be removed from their parents when the state meets its evidentiary burden justifying family separation. even when the agency was able to meet its burden, she routinely pushed the parties to identify and place children with suitable relatives, consistent with louisiana’s preadjudication statutory scheme.86 for example, during one continued custody hearing, judge gray asked a testifying case manager whether she was able to identify any relatives.87 the case manager testified that she was able to identify a number of relatives, at least one of whom lived in the new orleans area.88 the following exchange is illustrative: judge gray: did you notify the relatives that live in new orleans of this hearing? case manager: yes, i sent them a letter. judge gray: wait, you just removed the child… when did you send them a letter? case manager: when i got back to the office. judge gray: and you thought they would get the letter in time to come to this hearing? case manager: department policy is to notify all– [interrupted] judge gray: i’m not asking you about department policy. i’m asking you whether you thought by mailing a letter to relatives here in new orleans just a few days ago, you thought they would show up to this hearing. [pause] no, you don’t mail them a letter. when they live in new orleans, you drive over and talk to them, tell them about the hearing, check the home out, see if they can care for this child.89 judge gray also incentivized the parties to negotiate agreements outside of court to keep children with their families. on numerous occasions, the parties finalized placements with kin—even kin living out of state—during the time between the continued custody hearing and second shelter hearing. for example, in one continued custody hearing, 84 id. 85 id. 86 see supra text accompanying notes 54–58. 87 video recording: 1000-cc (feb. 21, 2017), supra note 81. 88 id. 89 id. 2022] a quiet revolution 509 judge gray ratified an arrangement on which the parties had reached agreement outside of court, allowing for a child to live with a grandmother in texas.90 in most jurisdictions, this would have taken months, if not years.91 in judge gray’s courtroom, it happened in days. finally, judge gray set high expectations by insisting that parties show up to court prepared and by conducting thorough hearings. the first continued custody hearing that the research team reviewed lasted more than forty-five minutes, with judge gray asking numerous questions of the witnesses,92 demanding that they present admissible evidence to satisfy statutory burdens.93 during one exchange, she challenged the parent attorney on her theory of the case with a curiosity and openness that invited zealous legal advocacy.94 judge gray’s questioning also suggested that she believed that the parent attorney might be trying to do an end-run to overcome an objection of hers that judge gray had previously overruled.95 after a few minutes of back-and-forth with the parent attorney, judge gray smiled and said, “oh, i see where you are going. . . . go ahead and proceed.”96 when attorneys showed up to court unprepared, she paused her hearings and directed them to negotiate immediately in the hallways of the courthouse. her displeasure rarely went unnoticed; during one hearing when the parties had agreed to place a child with a grandmother but failed to work out important details related to parent visitation, judge gray remarked: this is why cases fall apart. i keep telling y’all you can’t plan these cases fifteen minutes before you walk into my courtroom. i keep saying that. i guess nobody believes me.97 in this way, she created an expectation that parties would actively work together outside of court to pursue all options to prevent children from living with strangers. judge gray did not exercise her judicial role in the manner of a collaborative problem-solver, but rather, of the commander of the problem-solving process. 90 video recording: 1000-ss, held by orleans parish juvenile court (mar. 7, 2017) (on file with corresponding author). 91 see afcars dataset, supra note 5, at ffy 2020. the median length of stay among all children discharged to a relative (excluding relative guardianships and relative adoptions) during this timeframe was 5.7 months nationally, compared to 0.2 months in the orleans parish. nine jurisdictions (ri, mi, ct, md, in, ga, mo, ia, nc) had a median length of stay for children discharged to a relative (excluding relative guardianships and relative adoptions) that exceeded a year. 92 video recording: 1000-cc (feb. 21, 2017), supra note 81. the researchers developed a tool to code the hearings, capturing the number of questions the judge and attorneys ask during each hearing. the analyses are on file with the corresponding author. 93 id. 94 video recording: 1000-ss (mar. 7, 2017), supra note 90. 95 id. 96 id. 97 video recording: 1002-cc, held by orleans parish juvenile court (may 28, 2019) (on file with corresponding author). 510 colum. j. race & l. [vol. 12:1 c. the outcomes that followed judge gray’s reorganization of the orleans parish juvenile court process for civil child abuse and neglect proceedings reorganized at judge gray’s direction, the orleans parish juvenile court dramatically reduced the number of children in foster care. importantly, there is no evidence that this transformed approach jeopardized the safety of children.98 as stated in the introduction, there were over two hundred children in care in 2011 when judge gray undertook her efforts to reorganize the court process.99 by march of 2017, just twenty children were in foster care.100 at that time, orleans parish had the lowest rate of children in care in the state,101 with 2.5 children in foster care for every 10,000 in the population (“per 10k”), compared to a statewide rate of 40.6 per 10k.102 during this same period, the national rate of children in foster care was 58.5 per 10k.103 if the orleans parish children in care rate of 2.5 per 10k children were applied across the country as of march 31, 2020, there would be just over 18,000 children in foster care rather than the 415,170 that were actually in care on that date.104 children in new orleans also moved through the system—from removal of custody and placement in foster care, to exit and case closure— at a much faster rate. of the children who entered foster care in orleans parish during the first six months of 2017, 64% were discharged from foster care within thirty days of their removal, compared to 18% of children statewide.105 the dynamics of that reduction, however, are complex. removals to and discharges from foster care in the orleans parish were relatively stable during this time frame, closely mirroring each other.106 this is likely because judge gray’s court processes had a significant impact on children only after the continued custody hearing. under her scheme, the five or so (depending on the time frame) juvenile court judges in the orleans parish handled ex parte requests for removal on a rotating monthly basis. when a particular judge granted an ex parte removal request, that same judge presided over the continued custody hearing. it was only after that hearing that judge gray assumed presiding duties over all the civil child abuse and neglect cases, with her second shelter hearing automatically scheduled for all children in care after the continued custody hearing.107 as discussed above, 64% of children in foster care were discharged from foster care within thirty days of their removal.108 of those 98 see supra section iii.c. 99 afcars dataset, supra note 5, at ffy 2011. 100 id. at ffy 2017. 101 this is excluding cameron parish, the second smallest parish (population-wise) in louisiana, which only has an estimated 1,500 children living in the parish and had none in foster care at that time. 102 afcars dataset, supra note 5, at ffy 2017. 103 id. 104 id. at ffy 2020. applying the orleans parish 2.5 per 10k rate to the estimated national child population of 72,847,400 children living in the united states suggests a total foster care population of 18,211. 105 id. 106 id. 107 id. 108 id. at ffy 2017. 2022] a quiet revolution 511 children, 84% exited within two weeks of their removal, highlighting judge gray’s impact during the preadjudication phase.109 it can be seen that an explanatory metric of judge gray’s impact on the orleans parish dynamics would consist of not only how often, but also how long, children are separated from their family. fostering court improvement’s family separation metric, which is a simple count of the aggregate days all children spend separated from their family due to foster care placement, measures precisely that.110 the number accounts for entries, exits, and length-of-stay. figure 1 highlights the 90% reduction in the aggregate number of days all children were separated from their family for purposes of foster care placement between 2011 and 2017 in orleans parish.111 the scale of this reduction is unprecedented. figure 1: orleans parish family separation metric 109 id. at ffy 2009–2020. 110 the family separation metric represents a sum of all days that children spend separated from their family for purposes of foster care placement during a particular time frame, most commonly a year. days separated from family include all days that children are in foster care except days spent in relative placements, pre-trial home visits, and preadoptive home placements. the non-profit organization and data collaboration effort fostering court improvement reports this both as a single number and as a rate (per 10k children). for state-by-state data and county-by-county data, see state websites, fostering ct. improvement, https://www.fosteringcourtimprovement.org/state_websites.php [https:// perma.cc/6vf2-8rur]. see also, e.g., project from the imprint, data on family separation, who cares: a national count of foster homes and families, https://www.foster carecapacity.com/data/family-separation [https://perma.cc/9upa-ywcz] (annual state-bystate data from 2011 through 2020 on average days that a child spends separated from family per year); melissa carter & andrew barclay, we want kids to grow up in safe families. so let’s measure that., imprint (nov. 6, 2018), https://imprintnews.org/opinion/op-ed-we-wantkids-to-grow-up-in-safe-families-so-lets-measure-that/32667 [https://perma.cc/d2ca-5y7h] (summarizing some state-by-state conclusions from a “person-time metric” measuring the “time kids spend with non-family”). 111 the analysis uses afcars datasets, supra note 5, at ffy 2009–2020. 0 2,000 4,000 6,000 8,000 10,000 12,000 14,000 16,000 2 0 0 8 q 4 2 0 0 9 q 2 2 0 0 9 q 4 2 0 1 0 q 2 2 0 1 0 q 4 2 0 1 1 q 2 2 0 1 1 q 4 2 0 1 2 q 2 2 0 1 2 q 4 2 0 1 3 q 2 2 0 1 3 q 4 2 0 1 4 q 2 2 0 1 4 q 4 2 0 1 5 q 2 2 0 1 4 q 4 2 0 1 6 q 2 2 0 1 6 q 4 2 0 1 7 q 2 2 0 1 7 q 4 2 0 1 8 q 2 2 0 1 8 q 4 2 0 1 9 q 2 2 0 1 9 q 4 orleans parish: family separation metric 2009 to 2020a ffy, courtesy of fostering court improvement 512 colum. j. race & l. [vol. 12:1 moreover, a wealth of administrative data suggests that the reduction in family separation occurred without compromising safety for children. while family separation significantly decreased in the orleans parish between 2011 and 2017, the number of children and families subject to cps investigations did not.112 on march 31, 2011, orleans parish investigated children at a rate of 14.6 per 10k, compared to 23.4 per 10k statewide.113 on march 31, 2017, orleans parish investigated children at a rate of 28.3 per 10k, compared to 26.1 per 10k statewide.114 during the period in which the orleans parish juvenile court was significantly decreasing its foster care footprint, the orleans parish cps agency was increasing its child protection footprint. thus, it is reasonable to assume that if children were more at risk as a result of the unprecedented reduction in family separation by the orleans parish juvenile court, the cps agency would have captured this via subsequent investigated reports of alleged maltreatment, since investigations were not curbed alongside the reduction in family separation. subsequent reports of substantiated maltreatment are commonly referred to as a recurrence of maltreatment, and are typically measured at sixor twelve-month intervals.115 in other words, a recurrence of maltreatment has occurred when a child is the subject of two separate substantiated reports of maltreatment during a six-month period. since the median length of stay for a child in the orleans parish foster care system was so brief during this period of unprecedented reduction, recurrence of maltreatment metrics should capture whether child safety was being compromised by judge gray’s approach. however, recurrence of maltreatment in the orleans parish hovered around six percent during the reduction in family separation, dropping closer to five percent in 2017.116 despite the near elimination of foster care, orleans parish rates of recurrence of maltreatment remained comparable to statewide rates.117 another useful, yet imperfect, assessment of the safety of the reduction in family separation in the orleans parish is the child fatality rate in the jurisdiction. child fatality rates in the orleans parish were comparable to statewide rates between 2011 and 2017, and orleans parish rates declined in all but one year during this time frame. even more notably, orleans parish rates were below child fatality rates in two other 112 child. bureau, u.s. dep’t of health & hum. servs., national child abuse and neglect data system (“ncands”) child file, federal fiscal years 2010–2019, nat’l data archive on child abuse & neglect [hereinafter ncands child file dataset], https:// www.ndacan.acf.hhs.gov/datasets/datasets-list-ncands-child-file.cfm [https://perma.cc/4ltf -b84v] (data on file with corresponding author). 113 id. at ffy 2017. 114 id. 115 see, e.g., child. bureau, u.s. dep’t of health & hum. servs., cfsr round 3 statewide data indicator series 1 (2019) (defining, for the purposes of the children’s bureau’s child and family services review (“cfsr”), the indicator for “recurrence of maltreatment” by reference to “another substantiated or indicated maltreatment report”). 116 id. 117 id. using a lagging twelve-month average, recurrence of maltreatment statewide consistently hovered between five percent and six percent during the referenced period. 2022] a quiet revolution 513 large louisiana jurisdictions that consistently have higher rates of family separation than those of orleans parish.118 in sum, judge gray’s approach did not influence the actions of mandatory reporters, who continued to refer an increasing number of allegations that the cps agency screened in and investigated. judge gray’s approach also did not significantly influence the frequency with which children were removed on an emergency basis.119 rather, judge gray’s influence seemed to impact only the length of time a child was under court supervision, and more critically, separated from their family. so, contrary to what critics of judge gray feared, although significantly fewer children were separated from their families, the cps agency was not flooded with calls of children “being endangered by returning . . . to families in chaos.”120 less social control shook the confidence of some child welfare system stakeholders, but it did not jeopardize child safety. rather, it improved the system’s ability to protect the integrity of families. iv. lessons for the field as suggested at the outset, what is remarkable about judge gray’s approach is how unremarkable it was. during the preadjudication stage, she strictly enforced the constitutional presumptions and legal standards that govern foster care proceedings. she held parties to evidentiary rules to ensure she only considered proper evidence. through her questioning of witnesses and lawyers, she satisfied herself that all of the relevant evidence was presented at the hearings. she maintained high standards for counsel, expecting them to work extensively to resolve matters outside of the courtroom and to be disciplined legal advocates inside the courtroom. these are the core functions of a judge: enforce the law; abide by evidentiary rules; encourage out of court settlements. however, as detailed in part i, the import of these essential core functions to a particular juvenile court judge is not always apparent. calls to collaborate and problem-solve induce judges to defer to the judgment of others and relax procedure at critical decision-making points. yet a disciplined fidelity to those core gatekeeping functions seems to directly serve the outcomes at the intersection of child protection and family preservation. defining judicial leadership in a way that aligns with the value of the traditional judicial role seems to have significantly reduced reliance on family separation without compromising child safety. judge gray’s work in new orleans demonstrates the powerful impact juvenile court judges can have when they embrace their gatekeeper role. that is, judges must consider it their paramount obligation to enforce the state’s 118 nat’l ctr. for health stats., underlying cause of death 1999–2020, ctrs. for disease control & prevention: wonder database, https://wonder.cdc.gov [https:// perma.cc/9n5t-swm3] (analysis of data for children on file with fostering court improvement). 119 as discussed above, removal rates did decrease in the orleans parish, but only slightly. 120 richard a. webster, one judge’s tough approach to foster care: it’s only for the really extreme cases, wash. post (nov. 25, 2019), https://www.washingtonpost.com/ national/one-judges-tough-approach-to-foster-care-its-only-for-the-really-extreme-cases/20 19/11/24/bd2dd322-0a4c-11ea-97ac-a7ccc8dd1ebc_story.html [https://perma.cc/j3jy-82tc]. 514 colum. j. race & l. [vol. 12:1 statutory and constitutional burdens to prove that a child has been harmed or is at imminent risk of harm before placing that child in foster care. implementing this approach might require changes in how courts structure removal hearings, along with changes in how an individual judge handles removal hearings. judges presiding over removal hearings—both ex parte and contested hearings—must be trained in constitutional and statutory removal standards and the corollary for the judicial role. judges must exercise their power and authority in the preadjudication phase not to achieve a particular end result but to ensure that family separation is used only when foster care is the least restrictive intervention. this value must be shared amongst all those handling removal hearings and must be espoused publicly—as it was by judge gray—to influence the broader culture of the court in ways that support meaningful and lasting change. considerations of how to persuade judges to embrace these values, especially in the preadjudication stage, must be a focal point for future conversations in the child welfare community. courts must not only ensure that every judge is properly trained and shares these core values, but also create a structure to ensure that initial removal decisions are reviewed in an expedited manner. key to the success in new orleans was judge gray’s two-week review of initial removal decisions. at these hearings, she assessed whether the initial removal decision was warranted, whether continued removal was warranted, and whether any of the risks that might have existed had since abated. she also used these hearings to ensure that children were placed with kin whenever possible. immediately after the continued custody hearing, the looming second shelter hearing served as an ominous reminder to all parties that they would soon have to answer to judge gray as to why the child was still in care, why the child was not placed with kin, and what efforts were underway to file a timely petition. systemic players knew that excuses for not having answers to any of these questions would be met with judicial hostility. ideally, jurists should evaluate these factors before ever separating a family. but they must also build in processes to revisit the initial removal decision frequently and expeditiously. during the preadjudication phase, judges must rigorously enforce substantive legal standards and evidentiary rules. they must use statutes and court rules as their checklists. they must be willing to hold parties to their burdens, regardless of judicial hunch or personal feelings about the outcome. they must encourage a culture of advocacy, inviting lawyers before them to actively litigate all relevant matters. at a minimum, the advocate’s task involves calling witnesses, questioning them extensively, and making thorough arguments before the judge. when attorneys fail to develop the record, judges must be prepared to ask questions from the bench, as judge gray regularly did. by taking these steps, judges can convey to families and stakeholders the seriousness of the decision to separate families. finally, judges must create an expectation that parties work together outside the courtroom, collaborating to eliminate the need for foster care. this collaboration might include conversations about conditions that would allow children to safely remain with their parents. it 2022] a quiet revolution 515 might entail taking steps to overcome barriers for a kinship placement. regardless of the specific topic of the out-of-court conversation, it requires a shift in the mindset of the parties towards an ethos of continuous effort to get children out of foster care, requiring work and advocacy inside and outside of court. judicial leadership is not about co-creating solutions but rather about setting an expectation and overseeing a process for problems to be solved. these are the essential steps that judge gray took in new orleans that are immediately replicable nationwide without any statutory modifications or influx of resources. however, one outstanding question remains, related to the role that judicial collaboration plays in this approach, especially given its prevalence as an enduring and prominent theme in juvenile court practice and policy. how does collaboration fit into the approach outlined above, which prioritizes the judge’s role as a neutral arbiter of the dispute and enforcer of the law, one who is dispassionate about outcomes? while a judge must perform their role as gatekeeper until a parent has been proven to be unfit, there are opportunities for meaningful collaboration at other stages of a case. for example, judges can, and should, work with community providers and the child welfare agency to ensure that appropriate services are available for families. judges should convene collaborative meetings with stakeholders to identify systemic barriers that might be interfering with how cases are handled. judges can inspire community members to serve as foster parents or respite caregivers. in fact, judge gray played many of these collaborative roles in her community. but none of these collaborative roles can come at the expense of judges’ roles as foster care sentinels. this is the lesson of judge gray’s approach in the orleans parish: strict adherence to the traditional judicial role at the preadjudication stage of a dependency case can drive an unprecedented reduction in family separation and the near-elimination of foster care. v. conclusion in hindsight, jude gray’s impact on the orleans parish juvenile court is nothing short of revolutionary. yet the revolution was quiet. that is not to suggest that judge gray’s leadership was without criticism, although that is a topic by which this piece has refused to be distracted. however, a local casa director’s comments capture how polarizing judge gray can be in the orleans parish: “there are people who absolutely see her as a model for change, somebody who should be held up as an example and followed . . . and you will definitely find people who intensely dislike her and feel very strongly that what she has done is wrong.”121 yet for the unprecedented change she brought about in the orleans parish, there 121 webster, supra note 120 (quoting the executive director of casa new orleans). a casa is a “court appointed special advocate,” a citizen volunteer appointed by judges to advocate for the children’s best interests. casa volunteers are trained and managed by programmatic offices in local jurisdictions. our work, nat’l casa/gal ass’n for child., https://nationalcasagal.org/our-work/ [https://perma.cc/4hul-fnah]. 516 colum. j. race & l. [vol. 12:1 seemed to be little awareness, and virtually no evidence, of efforts to document or disseminate her approach. judge gray’s approach in new orleans is a blueprint for the court’s role in safely reducing the number of children in foster care, a fully attainable goal in our current system. the phenomenon of the orleans parish’s near elimination of foster care is explained in large part by interrogating the role of the juvenile court judge. by amplifying judge gray’s values and disciplined approach to the law during the preadjudication phase, we hope other judges will follow suit. judge gray retired at the end of 2020. while she remains a frequent contributor to national conversations about foster care, few focus on how she safely reduced the number of days that children are separated from their families by ninety percent. the process judge gray created in the orleans parish juvenile court remains in place; all juvenile court judges will continue to handle ex parte removals on a rotating monthly basis, and the juvenile court judge now assigned to judge gray’s former section will continue to preside over all civil child abuse and neglect proceedings following the continued custody hearing. left in judge gray’s wake is the deepest of curiosities we hope to answer upon the conclusion of our study: is it the process, or the processor, that matters? we trust, and perhaps fear, it is the latter. i. introduction ii. the juvenile court judge: gatekeeper or collaborator iii. judge gray’s impact on the orleans parish foster care system a. an overview of louisiana’s statutory preadjudication scheme b. the disciplined legal process judge gray instituted c. the outcomes that followed judge gray’s reorganization of the orleans parish juvenile court process for civil child abuse and neglect proceedings iv. lessons for the field v. conclusion columbia journal of race and law vol. 14 july 2024 no. 1 article the claim and the relief: revealing misconceptions and missteps in the u.s. supreme court’s jurisprudence for §1983 actions and black lives matter simona grossi† this article explores the persistent challenges in addressing police brutality through civil rights litigation, focusing on the limitations imposed by federal jurisdiction and justiciability doctrines post-lyons. it argues that the supreme court's approach, which conflates jurisdictional inquiries with procedural or remedial ones, has significantly hindered access to justice for plaintiffs seeking to vindicate their constitutional rights under §1983. by examining the foundational jurisdictional and procedural principles at stake, the article reveals the court's missteps and suggests ways to disentangle these concepts, aiming to restore §1983's essential role in defending constitutional rights and ensuring that victims of police misconduct can obtain full redress in federal courts. table of contents i. introduction.......................................................................................931 ii. the claim and the relief ..................................................................933 iii. standing ...........................................................................................936 iv. linda r.s. v. richard d. and city of los angeles v. lyons..............943 v. stating a claim, seeking relief, and establishing standing in §1983 actions ...............................................................................................950 vi. the effects of the precedent and how to reverse the trend ...........968 vii. conclusion .........................................................................................974 † simona grossi is professor of law and theodore bruinsma fellow at loyola law school los angeles. 2024] the claim and the relief 931 i. introduction nearly four decades after city of los angeles v. lyons was decided,1 we are still unable to challenge police brutality effectively via injunctive relief, and are instead confined to seeking damages for “past conduct”—for the brutalities and the use of deadly force that may have resulted in deaths—over and over again, all because the plaintiff before, and the one before that, could only bring to court, if they were lucky enough to make it that far, their “past exposure to illegal conduct.” our post-lyons2 history is perhaps the strongest possible signal that the court’s approach to the problem has not proven successful, for the problem persists and dramatic violations of fundamental constitutional rights continue to occur, leading to the creation of movements like black lives matter (blm), a decentralized political and social movement advocating against the racism, discrimination, and inequality experienced by black people. their advocacy has provided a tremendous contribution to social justice and equality, but more needs to be done. namely, federal jurisdiction and justiciability doctrines should be tools that the social justice and equality movements can draw upon, rather than obstacles that they must continually struggle to overcome. presently, the relevant doctrines and their interpretations do not allow federal courts to act within their province and perform their duty to say what the law is, thereby defending the constitution. this article offers some ideas to help courts facilitate that mission and restore to §1983 its essential role in defending our constitutional system. the core problem in current §1983 litigation derives from both a mistaken blurring of the jurisdictional and the remedial or procedural, and from a surgical fragmentation of the claim, in the erroneous belief that the plaintiff has a separate claim for each injury and each form of relief sought. but a “claim” in federal court is not the same as a “cause of action” in state court, and the difference between the two is not merely stylistic. a federal court “claim” is a set of operative facts that give rise to one or more rights of action. thus, it may comprise one or more injuries that are related to the same underlying set of facts. by contrast, a “cause of action,” in state courts like california that have adopted the primary rights approach, is a set of operative facts giving rise to one right of action, with the result that there is a separate cause of action for each right sought to be vindicated. the more rights violated, the more causes of action, even if they all arose from the same transaction or occurrence. the federal “case or controversy” analysis doesn’t apply in state courts since they are not subject to the jurisdictional limitations of article iii, §2. nor, conversely, should state “cause of action” analysis apply in federal courts. however, the result of these two parallel but very different approaches to defining “cause of action” and “claim” is that federal courts have unwittingly blended the two concepts, thereby creating severe obstacles to plaintiffs obtaining complete relief on §1983 claims in federal court. 1 461 u.s. 95 (1983). 2 id. 932 colum. j. race & l. [vol. 14:930 by examining some of the foundational jurisdictional and procedural principles at stake, this article reveals some of the supreme court’s missteps in its constitutional rights jurisprudence and the source of these misunderstandings. in doing so, i hope to provide the federal courts with a means of applying these principles in a way that will allow those whose constitutional rights have been violated to obtain full redress in a forum uniquely qualified to dispense justice in such cases. starting with linda r.s. v. richard d.,3 and city of los angeles v. lyons,4 the supreme court has slowly but steadily imported categories taken from the “injunctive relief” realm into the analysis of standing, conflating the claim and the relief, and thus frontloading the analysis of the merits of the claim, making access to justice increasingly difficult, especially in constitutional rights actions brought under §1983.5 the recurring language in the supreme court’s and lower courts’ decisions – that “past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief…if unaccompanied by any continuing, present adverse effects”,6 or that “plaintiff who alleges past harm lacks standing to seek injunctive relief”,7 or even more troubling, that “plaintiff must demonstrate standing separately for each form of relief sought”8 – reveals the source of the problem. because standing calls for a jurisdictional inquiry, while relief calls for a procedural or remedial one, the standard for satisfying the former cannot be the same as the one applicable to deciding whether relief can be granted, and the consequences of failing to show entitlement to the relief 3 410 u.s. 614 (1973). 4 461 u.s. 95 (1983). 5 42 u.s.c. §1983. 6 lyons, 461 u.s. at 102 (quoting o’shea v. littleton, 414 u.s. 488, 495-496 (1974); see also thompson v. lengerich, 798 fed. appx. 204, 210-211 (10th cir. 2019); abbott v. pastides, 900 f.3d 160, 176 (4th cir. 2018), cert. denied, 139 s. ct. 1292 (2019)) (“as the district court explained, a plaintiff seeking prospective injunctive relief ‘may not rely on prior harm’ to establish article iii standing. ‘past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief…if unaccompanied by any continuing, present adverse effects.’ because the plaintiffs are pursuing prospective injunctive relief in connection with their facial challenge to staf 6.24, they may not rest on the university’s past conduct, but they must instead ‘establish an ongoing or future injury in fact.’”) (internal citations omitted); rezaq v. nalley, 677 f.3d 1001, 1008 (10th cir. 2012) (“when prospective equitable relief is requested, the requesting party must show an ongoing, personal stake in the controversy, a likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law. ‘past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief.’ ‘similarly, in the context of an action for declaratory relief, a plaintiff must be seeking more than a retrospective opinion that he was wrongly harmed by the defendant.’”) (internal citations omitted). 7 see black lives matter d.c. v. trump, 544 f.supp.3d 15 (d.d.c. 2021). 8 see, e.g., perez v. san diego county, 2021 wl 3533322, *2 (s.d. cal. 2021); ward v. city of barstow, 749 fed. appx. 529, 530 (9th cir. 2018); center for bio-ethical reform, inc. v. black, 234 f.supp.3d 423, 431 (w.d.n.y. 2017); wisconsin carry, inc. v. city of milwaukee, 35 f.supp.3d 1031, 1036 (e.d. wis. 2014); cooke v. wood, 2011 wl 1542825, *6 (d. del. 2011); macissac v. town of poughkeepsie, 770 f.supp.2d 587, 593-549 (s.d.n.y. 2011) (“‘[a] plaintiff must demonstrate standing separately for each form of relief sought’… past injury alone does not establish a present case or controversy for injunctive relief. rather, ‘the injury alleged must be capable of being redressed through injunctive relief at the moment.’”) (internal citations omitted); schirmer v. nagode, 621 f.3d 581, 585 (7th 2010); discovery house, inc. v. consolidated city of indianapolis, 319 f.3d 277, 280 (7th cir.), cert. denied, 540 u.s. 879 (2003). 2024] the claim and the relief 933 sought cannot be dismissal of the action on the theory that there is then “no case or controversy.” for, among other things, a federal judge may in fact grant the plaintiff a form of relief more limited than the one sought, or even a relief different from the one requested,9 if the facts and the rights to which those facts give rise have been properly pleaded and proven. thus, this article addresses the improper conflation of the requirements for establishing standing (a jurisdictional question) with the criteria for granting the specific relief sought (a procedural or remedial question), demonstrating the need for clearly distinguishing between these two different types of analysis to ensure proper judicial handling of claims and remedies within the context of jurisdiction, access to justice, and enforcement of individual claims of right. by mistakenly conflating the claim and the relief—the jurisdictional and the remedial or procedural—the court has created high barriers to access to justice and has made it much harder to use tools like §198310 for the vindication of constitutional rights. ii. the claim and the relief the proponents of the primary-rights model viewed the law as a collection of relatively stable, enforceable right-duty relationships, each of which could be discerned as a matter of natural law and distilled into a manageable primary right.11 early twentieth-century reformers, such as roscoe pound, rejected the natural law premise of the primary-rights theorists and viewed law as a morphing, sociological phenomenon that, at its optimum, should reflect a balancing of interests dependent on time and circumstance.12 for pound and others of his generation,13 the law was in a constant state of becoming. such a morphing legal landscape was not reducible to identifiable primary rights; nor could it operate under a rigid procedural framework. indeed, clark, who was heavily influenced by pound’s work, questioned the coherence of the primary-rights approach. to 9 see fed. r. civ. p. 54(c). (“a default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.”) 10 42 u.s.c. §1983. 11 see, e.g., john norton pomeroy, the “civil code” in california 45-48 (1885) (extolling the virtues of permanent and stable law). on the other hand, pomeroy did recognize the value in the “elasticity” of the common law. id. at 52-53. 12 roscoe pound, mechanical jurisprudence, 8 colum. l. rev. 605, 605-606 (1908): law is not scientific for the sake of science. being scientific as a means toward an end, it must be judged by the results it achieves, not by the niceties of its internal structure; it must be valued by the extent to which it meets its end, not by the beauty of its logical processor the strictness with which its rules proceed from the dogmas it takes for its foundation. …law has the practical function of adjusting every-day relations so as to meet current ideas of fair play. it must not become so completely artificial that the public is led to regard it as wholly arbitrary. id. 13 wesley newcomb hohfeld, who also influenced clark’s work, believed that there was no universally ideal system of legal rights and that legal rights were the result of socially contingent policy choices. for hohfeld’s idea of right and legal relations, see wesley newcomb hohfeld, some fundamental legal conceptions as applied in judicial reasoning, 23 yale l. j. 16 (1913). 934 colum. j. race & l. [vol. 14:930 clark and other legal reformers of his era, a system of pleading premised on facts seemed most conducive to the promotion of their preferred sociological jurisprudence.14 consistent with that goal, asc a claim in federal court was understood not as a specified right of action, but rather, as the confluence of the operative facts and the rights of action arising out of them,15 i.e., “a group of operative facts giving rise to one or more rights of action.”16 according to clark, a right of action pertained to a “‘remedial right,’ that is the particular right-duty legal relation which is being enforced in the particular legal action under consideration.”17 a claim, on the other hand, was intended as a nontechnical, fact-driven narrative suggestive of a legal theory that would entitle the pleader to relief. clark thought that this approach to the claim would be most conducive to “the convenient, economic, and efficient conduct of court business, the enforcing of rules of substantive law with as little obtrusion of procedural rules as possible.”18 the claim controls the scope of discovery, provides the focal point for summary judgment, and determines the relevance of evidence to be presented at trial, should there be one. it is the heartbeat of the case. beyond that, a claim presents a demand for justice under the law. as such, the judicial recognition and enforcement of claims are essential components of the rule of law. as famously stated in marbury v. madison, the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. one of the first duties of government is to afford that protection… the government of the united states has been emphatically termed a government of laws, and not of men. it will 14 robert bone suggests the following distinction between the advocates of primary rights and the reform movement that led to the adoption of the federal rules: late nineteenth century jurists believed in a fundamental dichotomy between right and remedy and in the right-remedy-procedure hierarchy that held that procedure was instrumental to granting the ideal remedy, which, in turn, was instrumental to protecting legal rights rooted in natural law beliefs. early twentieth century reformers, on the other hand, rejected the right-remedy dichotomy and the natural law assumptions that supported it. for these reformers, there was no fixed social ideal that gave content to legal rights. instead, legal rights, duties, privileges and a host of other legal institutions were all shaped by the changing facts of social life. robert g. bone, mapping the boundaries of a dispute: conceptions of ideal lawsuit structure from the field code to the federal rules, 89 colum. l. rev. 1, 97 (1989). 15 charles e. clark, handbook of the law of code pleading supra note 12, at 477 (2d ed. 1947). 16 id. at 477; see also id. at 137 (“the cause of action must, therefore, be such an aggregate of operative facts as will give rise to at least one right of action….”). while the quoted materials specifically refer to the code-pleading phrase “cause of action,” clark made it clear that his pragmatic definition of cause of action was embraced by the term “claim” under the federal rules. id. at 146-148. 17 id. at 824 (emphasis in original). 18 charles e. clark, the code cause of action, 33 yale l.j 817, 820 (1924). 2024] the claim and the relief 935 certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.19 the relief is not part of the claim or a part of standing. it is rather the type of remedy that can partially or fully compensate the plaintiff for the injury and the violation of the right suffered, as shown by the relevant set of operative facts. douglas laycock defines the remedy as “anything a court can do for a litigant who has been wronged or is about to be wronged.”20 the two most common remedies are monetary damages and injunctions, i.e., orders requiring defendants to refrain from their wrongful conduct or to undo its consequences.21 “the court decides whether the litigant has been wronged under the substantive law that governs primary rights and duties; it conducts its inquiry in accordance with the procedural law. the law of remedies falls somewhere in between procedure and primary substantive rights. remedies are substantive, but they are distinct from the rest of the substantive law, and sometimes their details blur into procedure.”22 laycock also notes that “[f]or long periods in our past, remedies were casually equated with procedure.”23 and while substantive rules define the standards of conduct applicable to everyday life, procedural rules specify the manner or means through which claims arising under the substantive law may be adjudicated.24 an injunction is an order of the court commanding or preventing an action. more specifically, an injunction is a judicial process or mandate operating in personam by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing. an injunction has also been defined as a writ framed according to the circumstances of the case, commanding an act which the court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience; as a remedial writ which courts issue for the purpose of enforcing their equity jurisdiction; and as a writ issuing by the order and under the seal of a court of equity.25 an injunction can be preliminary (or temporary) or permanent. a preliminary injunction is “issued before or during trial to prevent an irreparable injury from occurring before the court has a chance to decide the case” and it is “issued only after the defendant receives notice and an opportunity to be heard.”26 a permanent injunction, on the other hand, is 19 marbury v. madison, 5 u.s. (1 cranch) 137, 163 (1803). 20 douglas laycock, modern american remedies: cases and materials 1 (4th ed. 2010). 21 id. 22 id. 23 id. 24 allan ides, christopher n. may & simona grossi, civil procedure: cases and problems 466 (5th ed. 2016). 25 howard c. joyce, a treatise on the law relating to injunctions §1, at 23 (1909). 26 black’s law dictionary, “injunction” (11th ed. 2019). 936 colum. j. race & l. [vol. 14:930 granted after a final hearing on the merits.27 in order to get a permanent injunction, a movant is required to show that it has suffered irreparable injury; that the remedies available at law are inadequate to compensate for that injury; that, considering the balance of hardships between the parties, a remedy in equity is warranted; and that the public interest would not be disserved by a permanent injunction.28 to obtain a preliminary injunction, a plaintiff must show that without such relief it will suffer irreparable harm before final resolution of its claims; that traditional legal remedies would be inadequate; and that it has some likelihood of success on the merits.29 thus, it is evident how the law of injunctions would fall, as laycock observed, somewhere in between procedure and substantive rights.30 but the standing doctrine, intended to ensure satisfaction of the “case or controversy” requirement under article iii, §2 of the constitution, is neither substantive law nor remedial or procedural law. rather, it is jurisdictional and constitutional law. iii.standing 31 standing is an aspect of justiciability. the term justiciability refers to a body of judicially created doctrines that define and limit the circumstances under which an article iii federal court may exercise its constitutional authority, including its authority to engage in judicial review. these doctrines are derived in part from an interpretation of article iii’s “case or controversy” requirement, and in part from prudential policy considerations involving perceptions of the proper role of the federal judiciary within the constitutional structure of government. stated very broadly, a matter is deemed justiciable if it’s capable of judicial resolution.32 to that end, the doctrines of standing, ripeness, mootness, and political questions are designed to ensure that article iii courts do not become embroiled in matters of a nonjusticiable nature that would take a federal court beyond the sphere of activity commonly associated with judging. article iii, § 2 provides that the “judicial power shall extend to” certain enumerated categories of “cases” and “controversies.” these words have been interpreted as being not merely descriptive of the business of article iii federal courts, but as imposing a specific constitutional limitation on the circumstances under which an article iii court may exercise its judicial authority. this limitation “helps to ensure that the legal questions presented to the federal courts will not take the form of abstract intellectual problems resolved in the ‘rarified atmosphere of a 27 id. 28 see, e.g., ebay inc. v. mercexchange, llc, 547 u.s. 388, at 391 (2006). 29 see, e.g., courthouse news service v. brown, 908 f.3d 1063, 1068 (7th 2018), cert. denied, 140 s. ct. 384 (2019). 30 laycock, supra note 1. 31 for a more extensive analysis of justiciability and the doctrine of standing see allan ides, christopher n. may, and simona grossi, constitutional law: national powers and federalism (9th ed. 2022); see also simona grossi, allan ides, federal courts: principles, cases & practices, west academic publishing, forthcoming. 32 flast v. cohen, 392 u.s. 83, 94 (1968). 2024] the claim and the relief 937 debating society’ but instead … will be presented ‘in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.’”33 because of the fact-intensive nature of the inquiry, “the precise boundaries of the ‘case or controversy’ requirement are matters of ‘degree…not discernible by any precise test.’ at the same time, the court has developed a subsidiary set of legal rules that help to determine when the constitution’s requirement is met.”34 the essence of this limitation is that an article iii court may only exercise jurisdiction over those matters in which there is an actual dispute involving the legal relations of adverse parties, and for which the judiciary can provide some type of effective relief.35 in other words, “[a] justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot.”36 an important corollary to the case or controversy requirement is that an article iii court may not issue an advisory opinion—i.e., an opinion issued outside the context of a justiciable case or controversy.37 the proscription against advisory opinions, however, does not preclude an article iii court from providing declaratory relief when requested to do so in the context of an actual case or controversy.38 while the case or controversy requirement establishes the constitutional minimum for the exercise of article iii authority, the mere satisfaction of that minimum is not always sufficient to establish justiciability. prudential considerations may also sometimes operate to divest an otherwise constitutional case of its justiciable character. these prudential considerations are premised on a combination of concerns derived from principles of separation of powers, federalism, and sound judicial administration. at the heart of “prudence” is the court’s perception of the federal judiciary’s proper function within the structure of government, and the court’s desire to avoid unnecessary clashes with other government institutions. these are essentially the same principles that inform the court’s interpretation of the case or controversy requirement. the prudential overlay, however, allows the court to expand the application of those principles beyond the established minimum requirements of constitutional justiciability. since prudential limitations are not constitutionally required, the supreme court can (and does) develop exceptions to its prudential rules. for example, an exception to the rule against third-party claims, allows plaintiffs standing to raise such claims if there are substantial obstacles that prevent the absent third party from doing so itself. similarly, congress can mandate exceptions to the court’s prudential rules. 33 clapper v. amnesty international usa, 568 u.s. 398, 423 (2013) (breyer, j., et al., dissenting). 34 id. 35 aetna life ins. co. of hartford, conn. v. haworth, 300 u.s. 227, 240-241 (1937). 36 id. at 240. 37 hayburn’s case, 2 u.s. 409 (1792). 38 aetna life ins., 300 u.s. 227. 938 colum. j. race & l. [vol. 14:930 standing is one of the justiciability doctrines and requires the presence of an injury-in-fact, causation, and redressability. these elements of a case or controversy are intended to ensure the presence of an actual dispute between adverse parties that is capable of judicial resolution. taken together, these elements—injury-in-fact, causation, and redressability—form what the court has described as article iii’s “irreducible constitutional minimum” for standing.”39 the standing doctrine examines that constitutional minimum from the perspective of the individual seeking to invoke the court’s authority, typically a plaintiff in a civil suit, and it asks whether the plaintiff has established, through injury, causation, and redressability, a personal stake in the outcome of a justiciable controversy.40 with respect to each of these elements, the party invoking federal court jurisdiction bears the burden of pleading and proof.41 and when a plaintiff asserts a number of different claims, plaintiff must separately establish standing as to each of those claims.42 if the suit is brought as a class action, plaintiffs must show that each class member individually satisfies the requirements of standing for each form of relief that they seek.43 since the injury, causation, and redressability requirements of standing define what constitutes an article iii “case or controversy,” an objection to standing may be raised at any time, in the trial court or on appeal, by a party or by a judge. “as a jurisdictional requirement, standing to litigate cannot be waived or forfeited. and when standing is questioned by a court or an opposing party, the litigant invoking the court’s jurisdiction must do more than simply allege a nonobvious harm…. [t]he litigant must explain how the elements essential to standing are met.”44 to satisfy the injury-in-fact requirement, a plaintiff must show that he or she has suffered a “concrete and particularized” invasion of a legally protected right.45 an injury is concrete if it is actual—i.e., if it exists in fact.46 it is particularized if it affects the plaintiff in a personal way.47 and 39 mcconnell v. federal election comm’n, 540 u.s. 93, 225 (2003). 40 see horne v. flores, 557 u.s. 433, 445-447 (2009) (party subject to an injunction has “personal stake” in outcome of proceeding seeking relief from the underlying judgment), see also department of commerce v. united states house of representatives, 525 u.s. 316, 329-330 (1999); bennett v. spear, 520 u.s. 154, 162 (1997). 41 transunion llc v. ramirez, 141 s. ct.. 2190, 2207-2208 (2021); lujan v. defenders of wildlife, 504 u.s. 555, 561 (1992); and see daimlerchrysler corp. v. cuno, 547 u.s. 332, 342 & n.3 (2006) (when a case is removed from state to federal court, defendant has the initial burden of showing that the case meets federal justiciability requirements). 42 daimlerchrysler corp., 547 u.s. at 349-353 (rejecting theory of “ancillary standing” and holding that plaintiff must separately satisfy standing as to each claim asserted). 43 transunion llc,141 s. ct. at 2208. 44 virginia house of delegates v. bethune-hill, 139 s. ct. 1945, 1950-1951 (2019) (party who intervened as a defendant in the federal district had suffered no cognizable injury that would have given it standing below or allowed it to appeal to the supreme court). 45 spokeo, inc. v. robins, 136 s. ct. 1540, 1548 (2016). 46 id. 47 id. 2024] the claim and the relief 939 it is legally protected if it is recognized as such by law. the typical individual rights case easily satisfies this standard.48 the injury-in-fact requirement will usually be met if there has been a violation of any of the plaintiff’s rights that are recognized by the constitution, federal or state statute, or by the common law, although this is not invariably true in the case of statutorily conferred rights. the requirement will also be satisfied by any other type of harm to the individual, so long as a federal court does not believe the interest invaded is too abstract or too novel to satisfy article iii’s case or controversy requirement. the injury may be either a present injury or a threatened injury, so long as the threatened future injury is not too speculative or remote. there is no test to determine whether an asserted interest or harm is adequate to satisfy the injury-in-fact requirement. but as harms become more creative, courts become increasingly reluctant to find the article iii injury-in-fact requirement satisfied. for example, in lujan v. defenders of wildlife,49 the court rejected three creative theories of harm (ecosystem nexus, animal nexus, and vocational nexus), explaining that “[s]tanding is not ‘an ingenious academic exercise in the conceivable,’ but as we have said requires…a factual showing of perceptible harm.”50 thus, the lujan court was unwilling to credit as constitutionally sufficient the supposed harm a person interested in an endangered species would experience whenever government action threatened that species’ chances for survival, a so-called animal nexus. the court did concede that it was “plausible…to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing [constitutionally sufficient] harm, since some animals that might have been the subject of his interest will no longer exist.”51 but regardless of that more concrete possibility, the claims of a generalized “animal nexus” were inadequate to satisfy article iii, ingenious though the theory may have been. however, the threatened injury might have sufficed in lujan had plaintiff already purchased her ticket or had made specific arrangements to visit the area where the endangered species lived, at a definite point in the future. in a case where plaintiff seeks damages, the injury or harm in question has already occurred. in other cases, however, where plaintiff seeks prospective injunctive relief, the injury that plaintiff relies upon for standing purposes is some threat of future harm. such allegations require the court to predict the likelihood of that harm occurring. to satisfy the injury-in-fact standard, the prediction must be based on concrete, 48 for example, suppose a public school fires a teacher because of her religious beliefs. the teacher’s first amendment claim against the school would satisfy the injury-infact requirement since her dismissal constitutes an actual abridgment of her personal right to religious freedom as protected by the first amendment. cf. gill v. whitford, 138 s. ct. 1916 (2018) (to establish standing in a vote-dilution challenge to legislative redistricting, a voter must show that his or her voting strength was in fact diluted). 49 504 u.s. 555, 565-567 (1992). 50 id. at 566. 51 id. at 566-567. 940 colum. j. race & l. [vol. 14:930 nonspeculative facts that establish a sufficient “imminence” of that injury occurring to the plaintiff.52 “an allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.”53 if a court deems the chances of such injury ever occurring are too speculative or remote, the injury-in-fact requirement for prospective relief will not be satisfied. in threatened future harm cases, it is harder to satisfy the injuryin-fact test. in clapper v. amnesty international usa,54 plaintiffs sought a declaratory judgment that the foreign intelligence surveillance act (fisa) was unconstitutional. fisa allowed the federal government to obtain secret court approval for the surveillance of electronic communications between persons within the united states and certain persons thought to be in foreign territories. plaintiffs in the case included lawyers who represented persons imprisoned in guantanamo bay, cuba, or who had been subject to c.i.a. rendition, and whose communications with their lawyers might be intercepted under fisa. the suit was filed on the day fisa became law. the district court dismissed it for lack of standing because plaintiffs had not yet suffered any injury. the court of appeals reversed, concluding that plaintiffs had alleged a sufficient threatened injury, i.e., an “objectively reasonable likelihood” their communications with foreign contacts would be intercepted at some point in the future. the supreme court reversed in a 5 to 4 decision, holding that for a “threatened injury” to qualify for standing, it is not enough that there be an “objectively reasonable likelihood” of a harm occurring. instead, plaintiffs must “demonstrate that the threatened injury is certainly impending….”55 here, there was no such certainty that the harms alleged by these particular plaintiffs would ever come to pass. while this “certainly impending” phrase had appeared in earlier opinions, the phrase is not necessarily synonymous with “impending with certainty.” instead, the word “certainly” may simply mean “definitely” or “at least.” or, as the dissent suggested, “certainly” may equate to “reasonable probability,”56 a standard that plaintiffs clearly met in this case. standing also requires that the injured plaintiff establish a causal link between the claimed injury and the conduct of the defendant. as the court has often phrased it, the injury must be “fairly traceable” to defendant’s conduct.57 the causation requirement is essentially identical to the concept of proximate cause in torts. the more direct the link between the plaintiff’s injury and the defendant’s conduct, the more likely it is that a court will find this element satisfied. and as was the case with injury-infact, one can expect the court to be somewhat reluctant to accept what may be characterized as speculative or elongated chains of causation, 52 id. at 562-567. 53 susan b. anthony list v. driehaus, 573 u.s. 149, 158 (2014) (internal citations omitted). 54 568 u.s. 398 (2013). 55 id. at 401 (emphasis added). 56 id. at 431-433 (breyer, j., et al., dissenting). 57 california v. texas, 141 s. ct. 2104, 2113 (2021); department of commerce v. united states house of representatives, 525 u.s. at 329-330; bennett v. spear, 520 u.s. 154, 162 (1997); allen v. wright, 468 u.s. 737, 750-751 (1984). 2024] the claim and the relief 941 particularly so when the actions of absent third parties are a factor in that causal chain.58 the third standing requirement, redressability, focuses on the relationship between the injury and the relief sought. the relief requested must be designed to alleviate the injury caused by defendant’s conduct. in fact, the redressability requirement is quite similar to the causation requirement, and in many cases—particularly those involving injunctions—merely serves as another perspective from which to examine the causal chain. here the question, however, is not whether the defendant caused the plaintiff’s injury, but whether the relief sought from the court will alleviate or otherwise redress that injury. the mere possibility of redress is not enough. rather, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”59 for the redressability requirement to be met, the relief sought need not correct or compensate for all the injury plaintiffs may have suffered. instead, it is enough that the relief sought will alleviate or lessen that injury, even if only to a minimal extent.60 and, as was the case with causation, redressability becomes somewhat more difficult to establish when alleviation of plaintiff’s injury depends upon the action of an absent third party.61 when describing several exceptions to the ordinary tripartite standing inquiry, the court in lujan noted that article iii standing would exist in “the unusual case in which congress has created a concrete private interest in the outcome of a suit against a private party for the government's benefit, by providing a cash bounty for the victorious 58 for example, in warth v. seldin, several low-income individuals filed suit challenging the constitutionality of a town’s zoning ordinance that, according to their allegations, had the purpose and effect of excluding persons of low income from residing within the town. even though the court accepted plaintiffs’ allegation that the zoning ordinance had such an exclusionary effect, the court concluded that plaintiffs had not established causation with respect to their personal injuries. for there were no facts establishing that any builder had specific plans to develop low-cost housing within the town that plaintiffs could afford. according to the court, in the absence of such a showing, the “cause” of plaintiffs’ injuries—the inability to purchase low-cost housing within the town— was not the zoning ordinance, but “the economics of the area housing market….” 422 u.s. 490, 506 (1975). of course, one could certainly argue that “the economics of the area housing market” were, in part, a product of the exclusionary zoning ordinance. but regardless of the merits of this argument, the court’s attitude was clear: causation, like injury-in-fact, cannot be established through conjecture, but must be premised on specific and plausible allegations of fact establishing a tangible causal link between plaintiff’s injury and the defendant’s conduct. 59 arizona christian school tuition organization v. winn, 563 u.s. 125, 134 (2011) (quoting lujan v. defenders of wildlife, 504 u.s. 555, 561 (1992)). and see collins v. yellen, 141 s. ct. 1761, 1779 (2020) (it must be shown that “a decision in the [plaintiffs’] favor could easily lead to the award of at least some of the relief that the [plaintiffs] seek”). 60 uzuegbunam v. preczewski, 141 s. ct. 792, 801 (2021) (“nominal damages” of but “a single dollar often cannot provide full redress, but the ability ‘to effectuate a partial remedy’ satisfies the redressability requirement.”). 61 see simon v. eastern kentucky welfare rights organization, 426 u.s. 26 (1976). but see utah v. evans, 536 u.s. 452 (2002) (finding redressable a state’s claim that it was deprived of a congressional seat by a census miscount when a correction of the count could add a seat to the state’s congressional delegation, but only if the president and house of representatives chose to honor the recount); see also id. at 510-515 (scalia, j., dissenting). 942 colum. j. race & l. [vol. 14:930 plaintiff.”62 the court explicitly reaffirmed this reasoning in vermont agency of natural resources v. u.s. ex rel. stevens,63 holding that an individual who brings suit under a structured “bounty” statute like the false claim act's qui tam provision has article iii standing.64 the stevens court reasoned that the government suffers a cognizable injury when it is defrauded, and that the false claims act's qui tam provision may be construed as a partial assignment of the government's claim to damages.65 thus, the court, through a “representational standing,” found the plaintiffs’ injury sufficient to support standing. but while the presence of a cash bounty may signal the existence of an interest, does it also prove the existence of an injury? in stevens, the court noted: there is no doubt, of course, that as to this portion of the recovery—the bounty he will receive if the suit is successful—a qui tam relator has a “concrete private interest in the outcome of [the] suit.”66 but the same might be said of someone who has placed a wager upon the outcome. an interest unrelated to injury in fact is insufficient to give a plaintiff standing. the interest must consist of obtaining compensation for, or preventing, the violation of a legally protected right. a qui tam relator has suffered no such invasion—indeed, the “right” he seeks to vindicate does not even fully materialize until the litigation is completed and the relator prevails. this is not to suggest that congress cannot define new legal rights, which in turn will confer standing to vindicate an injury caused to the claimant. as we have held in another context, however, an interest that is merely a “byproduct” of the suit itself cannot give rise to a cognizable injury in fact for article iii standing purposes.67 also, in steele co. v. citizens for a better environment,68 the court held that “a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit.”69 thus, it seems logical to conclude that congress (or a state legislature) may not satisfy article iii standing by merely imposing a duty and conferring a cause of action with statutory damages, as it’s only a particularized injury, personal to the 62 504 u.s. at 572-73. 63 529 u.s. 765, 773-774 (2000). 64 id. 65 “we believe, however, that adequate basis for the relator's suit for his bounty is to be found in the doctrine that the assignee of a claim has standing to assert the injury in fact suffered by the assignor. the [false claims act] can reasonably be regarded as effecting a partial assignment of the government's damages claim.... we conclude, therefore, that the united states' injury in fact suffices to confer standing on [the qui tam relator].” 529 u.s. at 773-774.. see also bauer v. marmara, 942 f.supp.2d 31, 35-37. (2013). 66 lujan, supra note 59, at 573. 67 529 u.s. at 772-773 (internal citations omitted). 68 523 u.s. 83 (1998). 69 id. at 107. 2024] the claim and the relief 943 individual, one that distinguishes that individual from the citizens at large, that can confer standing. in vermont agency for natural resources v. u.s. ex rel stevens,70 the court held that congress can “define new legal rights, which in turn will confer standing,”71 but “an interest that is merely a ‘byproduct’ of the suit itself cannot give rise to a cognizable injury in fact for article iii standing purposes.”72 thus, the prospect of a cash bounty cannot be a substitute for the injury. it’s therefore quite interesting that the court may approve of the cash bounty situation as an exception to the traditional tripartite standing test,73 while nevertheless insisting upon a strict “certainly impending” injury standard to find standing in non-cash-bounty cases. isn’t the prospect of the cash-bounty at least as speculative as an “objectively reasonably possible” injury? and isn’t the cash-bounty just remedial or procedural rather than jurisdictional? this inconsistency reveals a disingenuous aspect of the court's stance, suggesting that while the court’s classic standing analysis endorses a stringent standard for “injury in fact,” the court completely ignores this criterion when it allows for cash bounties, where the injury is merely fictional. iv. linda r.s. v. richard d. and city of los angeles v. lyons the relationship between the claim, the remedy, and jurisdiction is a complex and nuanced one. as explained above, the claim is the operative set of facts and the rights to which those facts give rise, while a remedy pertains to the specific relief a court may grant in response. jurisdiction, on the other hand, determines a court's authority to hear a case and adjudicate the matters presented. each of these elements operates under its own set of rules designed to meticulously address their respective nuances. blurring the lines among these foundational legal concepts can significantly impede an individual's capacity to vindicate their rights, potentially obstructing access to justice and infringing upon constitutional guarantees. the cases of linda r.s. v. richard d.74 and city of los angeles v. lyons75 serve as poignant illustrations of the complications that can arise when these critical legal elements are conflated. in linda r.s. v. richard d.76 the plaintiff, alleging that she was the mother of an illegitimate child, brought a class action on behalf of herself, her minor daughter, and all other women and minor children who had sought relief, were seeking, or will in the future seek child support from their father. plaintiffs sought to establish the unconstitutionality of a texas child-support law that had been interpreted as not being enforceable against the fathers of children born out of wedlock. plaintiff sought a declaratory judgment and a court order barring the state from denying 70 529 u.s. 765 (2000). 71 id. at 773. 72 id. 73 lujan, supra note 59, 504 u.s. at 572-573. 74 410 u.s. 614 (1973). 75 461 u.s. 95 (1983) 76 410 u.s. 614 (1973). 944 colum. j. race & l. [vol. 14:930 enforcement of the child support law solely on the basis of the father’s unmarried status. and because her goal was to obtain child support from the father,77 she also sought an order requiring richard d., the putative father, “to pay a reasonable amount of money for the support of his child.”78 the three-judge federal district court dismissed linda r.s.’s action for want of standing. on appeal, the supreme court, focusing on the probability of success on this ultimate “remedy”—the collection of child support— concluded that linda’s claim was not redressable because it was not clear that the father would pay that support, even if the law were enforced against him.79 but had the court attended to the plaintiff’s equal protection claim, it would have realized that the plaintiff had asserted a wellrecognized right of action—the equal enforcement of the laws—that, if meritorious, would entitle her to relief, namely, a wedlock-neutral application of prosecutorial discretion. the court noted, before we can consider the merits of appellant’s claim or the propriety of the relief requested, however, appellant must first demonstrate that she is entitled to invoke the judicial process. she must, in other words, show that the facts alleged present the court with a “case or controversy” in the constitutional sense and that she is a proper plaintiff to raise the issues sought to be litigated. the threshold question which must be answered is whether the appellant has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”80 the court also observed that while it had “greatly expanded the types of ‘personal stakes’ which are capable of conferring standing… ‘broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.'”81 the court went on to note that “[a]lthough the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.”82 77 id. at 620 (white, j., dissenting). 78 id. 79 linda r.s., supra note 3, 410 u.s. at 618 (“the prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative. certainly the ‘direct’ relationship between the alleged injury and the claim sought to be adjudicated, which previous decisions of this court suggest is a prerequisite of standing, is absent in this case.”) id. 80 410 u.s. 614, 616 (1973) (internal citations omitted). 81 id. at 616-617. 82 id. at 617. 2024] the claim and the relief 945 applying the stated law of standing to the facts of the case, the court found that the plaintiff had “failed to allege a sufficient nexus between her injury and the government action which she attacks to justify judicial intervention.”83 in fact, even if she had suffered an injury (the failure of her child’s father to contribute support payments), she had not shown that her failure to secure the payment resulted from the nonenforcement of the discriminatory law. after all, the father could still not pay and there was high likelihood of such occurring.84 “the party who invokes (judicial) power” added the court, “must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury as the result of (a statute’s) enforcement’… and must show ‘a logical nexus between the status asserted and the claim sought to be adjudicated . . . such inquiries into the nexus between the status asserted by the litigant and the claim he presents are essential to assure that he is a proper and appropriate party to invoke federal judicial power.’”85 if the plaintiff were granted the requested relief, i.e. the nondiscriminatory enforcement of the criminal statute, that “would result only in the jailing of the child’s father. the prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative.”86 in other words, “the ‘direct’ relationship between the alleged injury and the claim sought to be adjudicated, which previous decisions of this court suggest is a prerequisite of standing, is absent in this case.”87 noting that the court had confused the right with the relief, justices white and douglas, dissenting, observed that: “obviously, there are serious difficulties with appellant’s complaint insofar as it may be construed as seeking to require the official appellees to prosecute richard d. or others, or to obtain what amounts to a federal child-support order. but those difficulties go to the question of what relief the court may ultimately grant appellant. they do not affect her right to bring this class action.”88 justice white also noted that, while the father, if prosecuted under the state provision, would have had standing to seek to enjoin enforcement of the statute against him for under-inclusiveness, it was hard to see why the plaintiff and her class would not have standing to assert the same claim. “they are not, after all, in the position of members of the public at large who wish merely to force an enlargement of state criminal laws.”89 he pointed out how the plaintiff, her daughter, and the children born out of wedlock whom the plaintiff was attempting to represent had all allegedly been excluded intentionally from the class of persons protected by a particular criminal law, that is, how they did not get the protection of the laws that other women and children get.90 83 id. at 617-618. 84 id. at 618. 85 id. 86 id. 87 id. 88 id., at 620 (white, j., and douglas, j., dissenting) (emphasis added). 89 id. 90 id., at 620-621. 946 colum. j. race & l. [vol. 14:930 justice white then added: the court states that the actual coercive effect of those sanctions on richard d. or others ‘can, at best, be termed only speculative.’ this is a very odd statement. i had always thought our civilization has assumed that the threat of penal sanctions had something more than a ‘speculative’ effect on a person’s conduct. this court has long acted on that assumption in demanding that criminal laws be plainly and explicitly worded so that people will know what they mean and be in a position to conform their conduct to the mandates of law. certainly, texas does not share the court’s surprisingly novel view. it assumes that criminal sanctions are useful in coercing fathers to fulfill their support obligations to their legitimate children.91 it's truly hard to understand how the court could find lack of standing under the circumstances of the case, and why it conflated, as justice white noted, the right and the relief. the only possible explanation one might give for such a reading and outcome is, as the court noted, the case arose “in the unique context of a challenge to a criminal statute….”92 ironically, ten years later, justice white authored another problematic opinion, city of los angeles v. lyons,93 in which he would take a very different and less welcoming view of standing. in lyons, an african american male was stopped for a traffic violation by the los angeles police. he offered no resistance to the officers, and without provocation or justification, they seized him and applied a “chokehold.” lyons filed a §1983 action seeking damages and injunctive relief barring the los angeles police from using chokeholds except in situations where the detained individual reasonably appeared to be threatening the immediate use of deadly force. the trial court granted defendant’s motion to dismiss on standing grounds, the court of appeals reversed, but the supreme court, in agreement with the trial court, found that the plaintiff indeed had no standing. the court reached this result by conflating the claim and the relief. the court began by stating that “[t]he issue here is whether respondent lyons satisfied the prerequisites for seeking injunctive relief in the federal district court.”94 to answer the question, it said: it goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by article iii of the constitution by alleging an actual case or controversy. plaintiffs must demonstrate a “personal stake in the outcome” in order to “assure that concrete adverseness which sharpens the presentation of issues” necessary for the proper resolution of constitutional questions. abstract injury is not enough. the plaintiff must show that he “has sustained or is 91 id. at 621. 92 id., at 617. 93 461 u.s. 95 (1983). 94 id. at 97. 2024] the claim and the relief 947 immediately in danger of sustaining some direct injury” as the result of the challenged official conduct and the injury or threat of injury must be both “real and immediate,” not “conjectural” or “hypothetical.”95 then, after describing o’shea v. littleton96 and rizzo v. goode,97 two equitable injunctive relief cases, the court found that “[n]o extension of o’shea and rizzo is necessary to hold that respondent lyons has failed to demonstrate a case or controversy with the city that would justify the equitable relief sought. lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers.”98 after fragmenting lyons’ claim in two99—a claim for damages and a claim for injunctive relief—the court explained: that lyons may have been illegally choked by the police on october 6, 1976, while presumably affording lyons standing to claim damages against the individual officers and perhaps against the city, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. the additional allegation in the complaint that the police in los angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations that would be necessary to establish a case or controversy between these parties.100 but if a claim is a set of operative facts giving rise to one or more rights of action, why were there two, rather than only one claim? in lyons it’s clear that the nucleus of facts that gave rise to the claim was the traffic stop and the attendant use of a chokehold. this set of facts gave rise to one right of action, the right not to be injured. and there are two injuries at stake here, one (past) to lyons’ larynx, and another (future) that he’s trying to prevent via the injunctive relief request. it is, after all, these very types of cases for which the declaratory and injunctive relief were designed, i.e., to avoid an injury from happening again. sometimes, seeking relief only after the injury would be of no remedy to the petitioner, as we sadly know from all the cases where police brutalities culminated in the death of the victims. as we said earlier, there was only one claim here, for there was but one set of operative facts and all the rights and the injuries related to the same. fragmenting the claim in two, treating the past injury and the 95 id., at 101-102 (internal citations omitted). 96 414 u.s. 488 (1974). 97 423 u.s. 362 (1976). 98 lyons, supra note 6, 461 u.s. at 105. 99 this view was shared by justice marshall, dissenting in lyons. he objected to the majority’s decision to “fragment[ ] a single claim into multiple claims for particular types of relief.” lyons, supra note 6, 461 u.s. at 122 (marshall, j., dissenting). 100 lyons, supra note 6, 461 u.s. at 105. 948 colum. j. race & l. [vol. 14:930 future injury as injuries giving rise to different rights of action would perhaps be appropriate in a system taking a primary right approach. but this is not appropriate in the federal system which has endorsed the transactional approach to the claim. however, by taking the approach that it did, the court was able to dismiss the case on standing grounds, thereby avoiding any need to confront the merits of plaintiff’s constitutional claim. the lyons court also conflated standing with entitlement to the relief sought, speaking of these two interchangeably. thus, in referring to two equitable relief cases, the court noted that “[u]nder o’shea and rizzo, these allegations were an insufficient basis to provide a federal court with jurisdiction to entertain count v of the complaint” seeking injunctive relief.101 in note 8, the court again imported words from the injunctive relief realm into the realm of jurisdiction: lyons alleged that he feared he would be choked in any future encounter with the police. the reasonableness of lyons’ fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct. it is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions. the emotional consequences of a prior act simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant. of course, emotional upset is a relevant consideration in a damages action.102 and to the risk that this could happen again to lyons (or someone else), the court’s response was: of course, it may be that among the countless encounters between the police and the citizens of a great city such as los angeles, there will be certain instances in which strangleholds will be illegally applied and injury and death unconstitutionally inflicted on the victim. as we have said, however, it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse. and it is surely no more than speculation to assert either that lyons himself will again be involved in one of those unfortunate instances, or that he will be arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury.103 according to the court, what should lyons have alleged to have had standing to obtain the desired injunctive relief? the court proclaimed, in order to establish an actual controversy in this case, lyons would have had not only to allege that he would have 101 id. (emphasis added). 102 id. at n. 8 (emphasis in original). 103 id. at 108. 2024] the claim and the relief 949 another encounter with the police but also to make the incredible assertion either, (1) that all police officers in los angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the city ordered or authorized police officers to act in such manner.104 the lyons court made it incredibly difficult to challenge a pattern or practice of police brutality, one that has been responsible for tens of deaths over the past four decades in los angeles. and, no, justice white did not predict this correctly, for the price of the court’s doctrinal choice has translated into more than just “certain instances” 105 and the grievances inflicted afterwards on our community were more than mere “speculation.”106 justice marshall, in dissent, warned that the majority’s approach was going to lead to dangerous results: “[s]ince no one can show that he will be choked in the future, no one—not even a person who, like lyons, has almost been choked to death—has standing to challenge the continuation of the policy. the city is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. i dissent from this unprecedented and unwarranted approach to standing.”107 justice marshall, also pointed out that “by fragmenting a single claim into multiple claims for particular types of relief and requiring a separate showing of standing for each form of relief, the decision today departs from this court’s traditional conception of standing and of the remedial powers of the federal courts.”108 and, marshall continued, [b]ecause lyons has a claim for damages against the city, and because he cannot prevail on that claim unless he demonstrates that the city’s chokehold policy violates the constitution, his personal stake in the outcome of the controversy adequately assures an adversary presentation of his challenge to the constitutionality of the policy. moreover, the resolution of this challenge will be largely dispositive of his requests for declaratory and injunctive relief. no doubt the requests for injunctive relief may raise additional questions. but these questions involve familiar issues relating to the appropriateness of particular forms of relief, and have never been thought to implicate a litigant’s standing to sue. the denial of standing separately to seek injunctive relief therefore cannot be justified by the basic concern underlying the article iii standing requirement.109 according to justice marshall, 104 id. at 105-106 (emphasis in original). 105 id. at 108. 106 id. 107 id. at 113 (marshall, j., dissenting). 108 id. at 122-123 (emphasis added). 109 id. at 126. 950 colum. j. race & l. [vol. 14:930 [b]y fragmenting the standing inquiry and imposing a separate standing hurdle with respect to each form of relief sought, the decision today departs significantly from this court’s traditional conception of the standing requirement and of the remedial powers of the federal courts. we have never required more than that a plaintiff have standing to litigate a claim. whether he will be entitled to obtain particular forms of relief should he prevail has never been understood to be an issue of standing. in determining whether a plaintiff has standing, we have always focused on his personal stake in the outcome of the controversy, not on the issues sought to be litigated, or the “precise nature of the relief sought.”110 thus, justice marshall had understood that the court had reached the result it had reached by distorting the traditional, foundational ideas of jurisdiction, claim, and remedy, perhaps because conflating the three seemed to be the only way to respectfully deal with “the unique context of a challenge to a criminal statute.”111 but was it? would it have been better to achieve the same result by just finding that the plaintiff had failed to meet the “irreparable injury” standard required to get an injunctive relief? the effects on §1983 litigation and the enforcement of fundamental constitutional rights would have not been as harsh as they ended up being, and perhaps today, forty years later, we would not need to have a “black lives matter” movement, as police brutalities would have been stopped already. if the judiciary was willing to uphold the cash-bounty stratagem— that, by artificially creating an injury overcame any article iii hurdle—to make the system work, it’s hard to understand why the court would, in the name of protecting the strictures injury-in-fact requirement, fragment the claim and conflate the remedial and jurisdictional analysis, thus denying §1983 plaintiffs a meaningful and effective chance of litigating their claims and enforcing their fundamental constitutional rights. v. stating a claim, seeking relief, and establishing standing in §1983 actions112 in the realm of §1983 actions, plaintiffs are confronted with the intricate task of delineating their claims, seeking appropriate relief, and establishing the requisite standing to proceed. title 42, united states code §1983, serves as a pivotal tool for individuals to challenge deprivations of their constitutional or federal statutory rights under the color of state law. nevertheless, the effectiveness of this statute is frequently undermined by contemporary judicial interpretations that blur the distinctions between claims, remedies, and standing. this approach complicates the analysis, 110 id. at 127. 111 id., at 618. 112 for a more extensive analysis of §1983 actions, standing, and the eleventh amendment jurisprudence see allan ides, christopher n. may, and simona grossi, constitutional law: national powers and federalism (9th ed. 2022); see also simona grossi, allan ides, federal courts: principles, cases & practices, west academic publishing, forthcoming. 2024] the claim and the relief 951 often hindering the statute's foundational aim to provide a robust avenue for redress against state-level infringements of federal rights. this conflation within the judicial process not only obfuscates legal principles, but also places significant impediments in the path of plaintiffs seeking justice under §1983. title 42 of the united states code §1983,113 provides in relevant part that: every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory of the district of columbia, subjects, or causes to be subjected, any citizen of the united states or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.114 the statute, first enacted in 1871, provides a cause of action for legal or equitable relief against any “person” who, while acting “under color of” state law, violates someone’s federal constitutional or statutory rights. those who may be sued as “persons” under this statute include cities, counties, and other political subdivisions of a state, as well as individual state and local governmental officials. however, the eleventh amendment to the constitution bars suits against a state itself or against a state-level agency. the state is therefore not a “person” who may be sued under § 1983. yet if that amendment were construed as barring all private suits instituted against nonconsenting states, including state officials, it would be virtually impossible to bring a federal or state court action to force a state to honor the constitution and laws of the united states. the court has therefore recognized an exception to the eleventh amendment which allows suit to be brought to enjoin a state official from violating the constitution or laws of the united states. in ex parte young,115 the court explained this exception through the fiction that when a state official acts contrary to federal law, the official is thereby “stripped” of any state garb and transformed into an ordinary private individual. the stripping doctrine rests on the supremacy clause,116 which prohibits a state from violating the constitution or laws of the united states. since the state itself has no authority to violate federal law, it cannot confer such authority on its officials. a state official who acts contrary to federal law is therefore illegally attempting to use the name of the state to engage in conduct that the state is powerless to perform. a suit to enjoin that state official from violating federal law is therefore not a suit against the state for purposes 113 42 u.s.c. §1983. 114 id. 115 209 u.s. 123 (1908). 116 u.s. const., art. vi, cl. 2. 952 colum. j. race & l. [vol. 14:930 of the eleventh amendment, and thus falls within §1983 and is not barred by the constitution. the stripping doctrine is a fiction since in nearly every instance where a state official violates a person’s federal rights, the official has acted within the scope of his or her official duties and pursuant to a custom, policy, or law of the state. whether or not the state in theory could authorize such conduct, the state in fact authorized or permitted the violation to occur, with the result that someone was injured. it is a fiction to pretend that the injury was caused by an ordinary private individual rather than by an official representative of the state. yet if, as the fiction suggests, state officials cease to be representatives of the state the moment they violate federal law, a state could never violate the constitution. the state itself is a legal abstraction that can act only through its officers, agents, and employees. unless the conduct of these individuals is deemed to be that of the state, it would frankly be impossible for a state ever to violate the fourteenth amendment117 or any other constitutional provision that restrains the state’s behavior. the court has therefore held that the stripping doctrine applies only to the eleventh amendment and not to other constitutional provisions. as the court has noted, there is “the ‘wellrecognized irony’ that an official’s unconstitutional conduct constitutes state action under the fourteenth amendment but not the eleventh amendment.”118 while the ex parte young stripping doctrine is an exception to the eleventh amendment’s ban on suits against a state, the doctrine is consistent with hans v. louisiana,119 and its view that the eleventh amendment incorporated the doctrine of sovereign immunity. the ancient doctrine of sovereign immunity rested on the precept that “the king can do no wrong.” the king’s officers, however, were not shielded by sovereign immunity and could be sued when they violated the law. the stripping doctrine recognizes a similar distinction. thus, while the eleventh amendment shields the state from suit in federal or state court, the state’s officers, agents, and employees, as well as the state’s political subdivisions 117 the fourteenth amendment plays a critical role in the analysis of the stripping doctrine by underpinning the principle that state action can infringe upon individual rights, thereby necessitating redress under federal law. this amendment establishes a substantive legal framework that defines and prohibits certain state behaviors, specifically those that violate the rights and liberties guaranteed to individuals. when state officials, acting within their official capacities, contravene federally protected rights, they engage in "state action" as construed under the fourteenth amendment. this concept is pivotal because it enables individuals to seek remedies against state actors who, while ostensibly operating within their lawful prerogatives, infringe upon constitutionally enshrined protections. thus, while the stripping doctrine facilitates actions against state officials by conceptually disassociating their unlawful conduct from state authority under the eleventh amendment, the fourteenth amendment ensures that such conduct remains attributable to the state for the purpose of enforcing constitutional rights. this dichotomy underscores the nuanced interplay between individual rights and state responsibilities, reinforcing the essential checks on state power envisioned by the framers of the fourteenth amendment to safeguard individual liberties against state encroachments. 118 pennhurst state school & hosp. v. halderman, 465 u.s. 89, 105 (1984). 119 134 u.s. 1 (1890). 2024] the claim and the relief 953 such as cities and counties, enjoy no similar immunity and may be sued if they violate the federal constitution or laws. the stripping doctrine sometimes allows a federal court to enforce obligations on state officials that go beyond those specifically imposed by federal law. this may occur in situations where a suit brought against state officials to enforce some provision of federal law results in a settlement that is reduced to a so-called consent decree. under the terms of the decree, state officials may have agreed to provisions that go beyond what the federal statute specifically requires. it might be argued that the stripping doctrine should not allow judicial enforcement of such provisions, on the theory that as to them, the state was not acting contrary to federal law. however, the supreme court has rejected this contention, noting that a consent decree “is a federal court order that springs from a federal dispute and furthers the objectives of federal law.”120 as such, it “reflects a choice among various ways that a state could implement” federal law; therefore, “enforcing the decree vindicates an agreement that the state officials reached to comply with federal law.”121 to invoke the stripping doctrine, plaintiff must sue a named state official rather than the state itself, a state agency, or a state office. this is necessary to preserve the fiction on which the stripping doctrine rests, namely, that the suit is against an individual and not against the state. at the same time, a plaintiff alleging a constitutional violation must also clarify to the court that the conduct complained of was action of the state and not that of a purely private individual, for otherwise the constitution would not apply to the challenged action. to satisfy these seemingly contradictory requirements, plaintiffs must sue the defendant state officials by name, and must indicate that the officials are being sued both in their “individual capacity” and in their “official capacity.” the “individual capacity” designation preserves the fiction on which the eleventh amendment stripping doctrine rests; the “official capacity” designation reveals that the action complained of was that of the state for purposes of establishing a constitutional violation. yet the fact that a plaintiff is careful to sue a state official rather than the state, a state agency, or a state office will not always guarantee that the suit will survive an eleventh amendment challenge. the court has warned that “even though a state is not named a party to the action, the suit may nonetheless be barred by the eleventh amendment.… ‘[w]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.’”122 the prohibition against suits to recover money from the state is also the basis for the court’s having limited the stripping doctrine to claims for prospective relief—i.e., relief directed toward the future behaviour of the 120 frew ex rel. frew v. hawkins, 540 u.s. 431, 438 (2004). 121 id. at 439. 122 edelman v. jordan, 415 u.s. 651, 663 (1974). 954 colum. j. race & l. [vol. 14:930 defendant, such as an injunction to prevent a continuing violation of federal law. the stripping doctrine thus excludes claims for retroactive relief—i.e., relief designed as a remedy for past behaviour, such as damages, compensation, or an injunction directed at undoing a completed transaction. the eleventh amendment bars claims for retroactive relief. even if a suit is nominally against a state official, it is still barred by the eleventh amendment if the retroactive relief will require payment of funds from the state treasury. on the other hand, a federal court may order state officials to pay money that will come from the state’s treasury in connection with the award of prospective relief; this is permitted, for example, when a court awards plaintiff’s attorney’s fees or costs in a suit for injunctive relief, or where a state official is fined for contempt in violating a federal injunction. the relief sought in ex parte young was consistent with these limitations on use of the stripping doctrine. plaintiffs there sued the minnesota attorney general to enjoin continued enforcement of a railroad rate statute that violated the fourteenth amendment. such prospective injunctive relief to bar a state official from violating the constitution in the future did not run afoul of the eleventh amendment. while the defendant official’s compliance with the injunction would cost the state money in the form of fines it could no longer collect from railroads that ignored the rate law, this incidental impact on the state treasury was an inevitable consequence of requiring that state officials comply prospectively with federal law. on the other hand, the plaintiffs in young would have been barred by the eleventh amendment from attempting to recoup any fines they may have paid to the state under the challenged rate statute. even though prospective relief is usually injunctive in nature, ordering governmental officials to take or refrain from taking certain specified action, relief sometimes takes monetary form. for example, if, under the stripping doctrine, a federal court issues an injunction and the state official to whom it is directed then fails in good faith to comply with the order, a federal court may award attorney’s fees to the plaintiff’s lawyers, to be paid from the state treasury. though such an order may have the appearance of a damages award, it is distinguishable in that instead of being based on past behaviour, it is ancillary to and an inseparable part of a federal court’s authority to enforce a prospective injunction.123 despite the eleventh amendment, a plaintiff may be able to obtain retroactive relief against state officials for past violations of federal law if it is clear that the recovery is being sought solely from the official’s own pocket and not from the state treasury. under these circumstances, the fiction on which the stripping doctrine rests—i.e., that the suit is against the individual official personally and not against the state—is preserved and the suit is not barred by the eleventh amendment. this is true even if 123 as the supreme court explained, “in exercising their prospective powers under ex parte young and edelman v. jordan, federal courts are not reduced to issuing injunctions against state officers and hoping for compliance. once issued, an injunction may be enforced.…if a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance. see hutto v. finney, 437 u.s. 678, 690-691 (1978) 2024] the claim and the relief 955 the state has agreed to indemnify the official for any damages the official is ordered to pay. while a damages judgment against the official may ultimately result in money being paid from the state treasury, this is a consequence of the state’s voluntary decision to indemnify its officials. if the mere existence of an indemnity agreement were sufficient to block a damages claim against a state official under the eleventh amendment, every state would make such an agreement since it would cost them nothing. the very fact of such an agreement would prevent the official from ever being found liable and the obligation to indemnify would therefore never arise. although the eleventh amendment will pose no bar to recovering retroactive damages from a state official personally, the official may be shielded by common law immunity. because the supreme court has read this immunity into 42 u.s.c. § 1983, the immunity applies whether the § 1983 action is brought in federal or state court. the purpose of common law immunity is to ensure that government officials will not be unduly inhibited in discharging their duties, out of fear that they could be subject to personal monetary liability.124 the extent of an official’s common law immunity from civil liability will depend on the type of function the official was performing when he or she violated the plaintiff’s rights. if the function was legislative in nature, the official is absolutely immune from civil suit—including both damages claims and claims for declaratory or injunctive relief. if the function was prosecutorial or judicial in nature, the immunity is likewise absolute, but only as to damages claims; as to the latter, however, the immunity attaches no matter how blatant or wilful the violation may have been. the same absolute immunity extends to government officials who appear as witnesses before a grand jury or at trial.125 for other types of governmental functions, such as executive and ministerial actions, the official possesses a qualified immunity but solely with respect to claims for damages. under qualified immunity, a defendant official will not be held liable for damages if a reasonable person in the defendant’s shoes would not have realized that his or her conduct was in violation of federal law. this shields an official from damages liability if, in light of pre-existing law, the legal rule or right in question was not “clearly established” at the time the violation occurred. the test is one of “objective legal reasonableness.”126 in order to be “clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”127 the question must have been “‘beyond debate’ at the time [the official] acted….”128 because the test is an objective rather than a subjective one, the court has suggested that if qualified immunity would otherwise exist, it cannot be defeated by alleging that a government official 124 it is also designed to free them from the burden of having to defend against lawsuits based on insubstantial claims, a burden that could seriously impair government’s ability to function. these common law immunities protect both state and local governmental officials. 125 rehberg v. paulk, 566 u.s. 366 (2012). 126 harlow v. fitzgerald, 457 u.s. 800, 819 (1982). 127 taylor v. barkes, 575 u.s. 822, 825 (2015). 128 lane v. franks, 573 u.s. 228, 246 (2014). 956 colum. j. race & l. [vol. 14:930 acted with an improper motive, for this would defeat the goal of allowing such suits to be dismissed at an early stage.129 private individuals who are temporally retained by the government to help carry out its work likewise enjoy a qualified immunity in suits brought against them under § 1983.130 the supreme court has not resolved the question of what sources of law are sufficient to “clearly establish” a right for purposes of the qualified immunity doctrine. in the case of a federal statutory right, the statute itself may be sufficiently clear to satisfy the requirement. with respect to constitutional rights, or statutory rights that are facially unclear, the rights must be clarified and refined by case law. for this purpose, some federal courts have insisted on a definitive ruling from the u.s. supreme court, while others have suggested it is enough that there is some consensus among the courts of appeals, while some have looked simply at whether the matter had been settled by the court of appeals for that particular circuit. however, the supreme court has recently cast doubt on these latter approaches. thus, it has questioned whether “a ‘robust consensus of cases of persuasive authority’ could itself clearly establish the right” in question.131 the court has also expressed uncertainty about the idea “that a right can be ‘clearly established’ by circuit precedent despite disagreement in the courts of appeals….”132 these decisions suggest that the qualified immunity hurdle may be an increasingly difficult one for plaintiffs to clear when seeking to recover damages for violation of their constitutional rights. in deciding, for qualified immunity purposes, whether a legal right or rule was clearly established at the time defendant acted, the supreme court has “repeatedly told courts…not to define clearly established law at a high level of generality.”133 the test is one of reasonable notice. “[o]fficials can still be on notice that their conduct violates established law even in novel factual circumstances…. although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.”134 in other words, the question is whether “at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing 129 see wood v. moss, 572 u.s. 744, 761-763 (2014) (upholding secret service agents’ qualified immunity despite allegation that they engaged in viewpoint discrimination prohibited by the first amendment). 130 filarsky v. delia, 566 u.s. 377 (2012). 131 city and county of san francisco v. sheehan, 575 u.s. 600, 617 (2015). 132 taylor v. barkes, supra note 127, 575 u.s. at 826. see also city of escondido v. emmons, 139 s. ct. 500, 503-504 (2019) (questioning whether “a court of appeals decision may constitute clearly established law for purposes of qualified immunity,” noting that “a body of relevant case law is usually necessary to clearly establish the answer…” (internal quotation marks omitted); carroll v. carman, 574 u.s. 13, 17 (2014) (questioning whether “a controlling circuit precedent could constitute clearly established federal law”). 133 ashcroft v. al-kidd, 563 u.s. 731, 742 (2011). “[t]he crucial question [is] whether the official acted reasonably in the particular circumstances that he or she faced.” plumhoff v. rickard, 572 u.s. 765, 779 (2014) (emphasis supplied); accord kisela v. hughes, 138 s. ct. 1138, 1152-1153 (2018) (per curiam); white v. pauly, 137 s. ct. 548, 552 (2017) (per curiam) (particularized to the facts of the case); mullenix v. lewis, 577 u.s. 7 (2015) (per curiam) (in light of the specific context of the case). 134 hope v. pelzer, 536 u.s. 730, 741 (2002). 2024] the claim and the relief 957 violates that right.”135 similarly, where there is a substantial and credible difference of opinion among lower courts as to the proper interpretation of a controlling supreme court precedent, the standard emanating from that precedent will not be treated as “clearly established” in cases falling within the bounds of that interpretive disagreement.136 the supreme court has made it clear that in applying the qualified immunity doctrine, all doubts are to be resolved in favour of the defendant. this is a strict standard, one that is designed to give federal and state “officials breathing room to make reasonable but mistaken judgments about open legal questions. when properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’”137 however, there may be rare occasions when a constitutional violation is so blatant and egregious that the right in question will be deemed clearly established, despite the absence of any fact-specific prior precedent.138 the doctrine of sovereign immunity incorporated into the eleventh amendment is broader than the common law doctrine of sovereign immunity. at common law, the king’s officers enjoyed no immunity from suit if they violated people’s rights under the law. by contrast, the eleventh amendment shields state officials from suit for any violations of state law. as noted earlier, the stripping doctrine is a judge-made exception to the eleventh amendment. when it applies, the doctrine has the consequence of allowing claims that arise under federal law to be brought against state officials. congress has the power to narrow the lower federal courts’ subject matter jurisdiction by excluding certain cases, even those that may arise under federal law. consistent with these principles, congress may direct that the stripping doctrine not be employed in selected federal question cases, with the result that these claims against state officials would be barred from federal court. thus, congress can in effect expand the states’ eleventh amendment immunity beyond that established by the supreme court. congress’s intent to limit use of the stripping doctrine may be either express or implied. in seminole tribe of florida v. florida,139 the court found an implied intent to bar use of the stripping doctrine in a case where plaintiffs sought a federal injunction requiring the governor of florida to negotiate with local indian tribes, as required by the federal indian gaming regulatory act. in the court’s view, for a federal judge to issue an injunction that could be enforced through the court’s contempt powers would impose a more drastic mode of enforcement than the “modest set of sanctions” provided for under the “carefully crafted and intricate remedial scheme” created by congress.140 since the stripping doctrine could not be 135 ashcroft v. al-kidd, supra note 133, 563 u.s. at 741. 136 see safford unified school district #1 v. redding, 557 u.s. 364, 377-379 (2009) (so holding). 137 ashcroft v. al-kidd, supra note 133, 563 u.s. at 743 (federal official); and see messerschmidt v. millender, 565 u.s. 535, 546-548 (2012) (state officials). 138 see, e.g., taylor v. riojas, 141 s. ct. 52 (2020). 139 517 u.s. 44 (1996). 140 id. at 73-76. 958 colum. j. race & l. [vol. 14:930 used in this particular setting, plaintiffs’ case against the governor was barred by the eleventh amendment as a suit against the state. in cases involving federal constitutional rights, the court may be less willing to infer a congressional intent to bar use of the stripping doctrine than it was in seminole tribe, where only a statutory right was at stake. before finding that the stripping doctrine cannot be employed in a case involving constitutional rights, the court might insist that congress’s intent be stated expressly and that the alternative remedies available to plaintiff be adequate. where these conditions were met, congress could bar use of the stripping doctrine even in a constitutional case. although the court has not addressed this question in terms of the eleventh amendment, it has allowed congress to selectively deny lower federal courts the power to grant injunctive relief in constitutional cases. in such instances plaintiffs must litigate their constitutional claims in state court, with possible review in the supreme court. the eleventh amendment’s prohibition against bringing a suit against a non-consenting state does not protect “political subdivisions such as counties and municipalities even though such entities exercise a ‘slice of state power.’”141 the reason for this is that the states’ immunity from suit derives from the sovereignty they possessed prior to ratification of the constitution, a sovereignty that was not enjoyed by cities, counties, or other political subdivisions of a state. as a result, under the eleventh amendment, “only states and arms of the state possess immunity from suits authorized by federal law.”142 the eleventh amendment’s narrow definition of “state” stands in sharp contrast to many other constitutional provisions such as the fourteenth amendment, in which the word “state” is deemed to embrace all of a state’s political subdivisions. governmental entities other than cities, counties, and political subdivisions of the state may qualify for eleventh amendment immunity if it is determined that they are in effect acting as arms of the state. however, it may at times be difficult to decide whether a particular governmental entity should be treated as part of the state and therefore shielded by the eleventh amendment, or whether it is instead a political subdivision of the state and hence enjoys no eleventh amendment protection. some cases are easy. the various departments, offices, and bureaus of the state government are part of the state. these could include such entities as the state office of education, the state department of highways, and the attorney general’s office. at the opposite extreme, cities, counties, mosquito abatement districts, community college districts, and metropolitan water districts are political subdivisions of the state. the court has identified several factors that may be helpful in determining an entity’s status for purposes of the eleventh amendment. the most important of these is the source of the entity’s funding. if the entity is funded largely or entirely by the state, so that a judgment against the entity will operate against the state treasury, it is very likely the entity 141 lake country estates, inc. v. tahoe regional planning agency, 440 u.s. 391, 401 (1979). 142 northern insurance company of new york v. chatham county, 547 u.s. 189, 193 (2006). 2024] the claim and the relief 959 will be protected by the eleventh amendment. on the other hand, if the entity receives funding from sources other than the state, or if it has been given the power to generate its own funds, such as through taxation or the issuance of bonds, it is more likely to be treated as an independent nonstate entity. other relevant factors, besides funding, include the extent of state control over the entity; the type of functions the entity performs; and how the state has designated the entity. in lake country estates, inc. v. tahoe regional planning agency, the court applied these factors in concluding that a bi-state agency created by a compact between california and nevada enjoyed no eleventh amendment immunity. the agency was funded by the counties in which it operated, not by the states; the agency’s governing board was controlled by counties and cities rather than by the states; the agency performed land use functions of a type traditionally undertaken by local governments; and the states had identified the agency as being a “separate legal entity” and “a political subdivision.”143 an entity that is normally not protected by the eleventh amendment because it is deemed to be a political subdivision of a state may sometimes be immunized from suit in federal court. if a judgment against the entity would in effect be a judgment against the state treasury, the court will ignore the fact that the suit is nominally against a political subdivision and treat the action as being one against the state or a state officer. whether or not the suit is barred will then depend on whether any of the exceptions to the eleventh amendment apply. the fact that cities, counties, and other political subdivisions of the state are usually not shielded by the eleventh amendment means that federal and state courts can potentially issue money judgments against these entities. thus, it is beneficial for a plaintiff to sue, if possible, a political subdivision of the state rather than the state, a state agency, or a state-level official. however, to sue a political subdivision of the state, the plaintiff must have a cause of action – i.e., the law must afford plaintiff the right to recover for the injury complained of. as we noted earlier, a federal statute, 42 u.s.c. § 1983, gives a cause of action against any “person” who, while acting “under color of state law,” deprives a plaintiff of a federal constitutional or statutory right. section 1983 is the primary vehicle used for asserting claims against state and local officials have violated a plaintiff’s federal rights. the supreme court has held that neither states nor state-level agencies are “persons” within the meaning of § 1983. a plaintiff may therefore only sue the individual state officials or employees who impaired her federal rights; she may not sue the state itself or the state agency or state entity for whom the individual defendant was working. cities, counties, and other political subdivisions of the state, on the other hand, are “persons” within the meaning of § 1983. suits for legal or equitable relief may be brought directly against these entities, but only if plaintiff can prove that the conduct causing her injury was taken pursuant to an official policy or custom of the entity.144 liability may not be imposed 143 440 u.s. at 401. 144 monell v. department of social services, 436 u.s. 658, 694 (1978). 960 colum. j. race & l. [vol. 14:930 on a political subdivision simply on a theory of respondeat superior or vicarious liability.145 absent a proven custom or policy, the entity cannot be held liable for damages or made subject to prospective injunctive relief.146 a subdivision’s policy or custom need not be written in order to trigger § 1983 liability. instead, it may consist of “deliberate indifference” on the entity’s part to a pattern or practice of constitutional violations by its employees, where the entity has taken no steps to prevent such violations through the provision of adequate training.147 if a custom or policy is shown to exist, plaintiff may then seek both damages and prospective relief from the entity and from the individuals who acted on its behalf. moreover, while the entity’s officers or employees may be shielded from damages liability by absolute or qualified common law immunity, the entity itself enjoys no common law immunity. this rule encourages cities and counties to respect the people’s federal rights, even in areas where the precise scope of these rights may be unclear. thus, while a lack of clarity will shield an individual defendant from liability through the doctrine of common law immunity, the entity, because it can be held liable even in cases of doubt, is likely to err on the side of over rather than underprotecting an individual’s federal rights. the “under color of state law” requirement of § 1983 is satisfied in cases brought against political subdivisions of the state as long as the action complained of was within the scope of the officer’s or employee’s official duties or responsibilities, as opposed, for example, to action that was taken after hours or while the employee was on vacation. and if the action was within the scope of the employee’s duties, there is no requirement that a state law also have sanctioned the conduct. the final exception to the eleventh amendment comes into play where congress has passed a law abrogating the states’ immunity from suit. we saw earlier that congress may quite easily expand the states’ eleventh amendment immunity by prohibiting the federal courts from using the stripping doctrine. it is more difficult, however, for congress to narrow the states’ eleventh amendment immunity through abrogation. an attempt by congress to abolish the states’ sovereign immunity from suit will be upheld by the court only if two requirements are met. first, congress must have made its intention to abrogate the immunity “unmistakably clear in the language of the statute.”148 since the intent “must be both unequivocal and textual,” any “recourse to legislative history will be unnecessary.…”149 second, the law abrogating the states’ immunity must not have been enacted under one of congress’s article i powers, such as the commerce clause (art. i, § 8, cl. 3) or the patent clause (art. i, § 8, 145 id. at 691. 146 see lozman v. city of riviera beach, 138 s. ct. 1945, 1951 (2018); los angeles county v. humphries, 562 u.s. 29, 36 (2010). 147 connick v. thompson, 563 u.s. 51, 60-62 (2011). 148 atascadero state hospital v. scanlon, 473 u.s. 234, 242 (1985). 149 dellmuth v. muth, 491 u.s. 223, 230 (1989). 2024] the claim and the relief 961 cl. 8), but must have been adopted pursuant to the fourteenth amendment.150 the first requirement constitutes a “clear statement” rule. it is designed to protect the states by ensuring that they have notice and an opportunity to defend themselves when legislation to abolish their eleventh amendment immunity is being debated in congress. unless it is clear at the time of enactment that the law will subject the states to suit, the states’ members in the u.s. house and the senate have no chance to oppose the measure on this ground. the court relied on the clear statement principle in raygor v. regents of the university of minnesota,151 where it held that the tolling provision of the supplemental jurisdiction statute, 28 u.s.c. § 1367(d), could not be construed to toll the statute of limitations on a federal claim against a state that was first filed in federal court but dismissed on eleventh amendment grounds, and then refiled in a state court after the statute of limitations had run out. as the court noted, the text of § 1367 did not specifically refer to claims filed against a state or to dismissals premised on the eleventh amendment. as such congress had not made its intent to abrogate a state’s sovereign immunity on such claims unmistakably clear.152 the second requirement bars congress from abrogating the states’ eleventh amendment immunity under any of its article i powers. this requirement logically follows from the fact that the eleventh amendment is, in part, a constitutional limitation on the subject matter jurisdiction of the federal courts—i.e., it removes certain cases from the federal judicial power as originally defined by article iii, § 2. the court has long held that congress cannot expand the federal courts’ subject matter jurisdiction beyond the limits defined by the constitution. just as congress may not use its commerce power (art. i, § 8, cl. 3) to give federal courts jurisdiction over tort claims between motorists from the same state, it may not use its article i powers to give the courts jurisdiction over cases that are excluded from the federal judicial power by the eleventh amendment. in seminole tribe of florida v. florida,153 the court, on this basis, struck down a law enacted by congress under the indian commerce clause,154 which had allowed indian tribes to file suit against a state in federal court to enforce the indian gaming regulatory act. seminole tribe overruled pennsylvania v. union gas co.,155 a short-lived decision in which a bare majority of the court ruled that the states’ eleventh amendment immunity may be abrogated by congress under any of its law-making 150 allen v. cooper, 140 s. ct. 994, 1001-1003 (2020) (copyright clause); seminole tribe of florida v. florida, 517 u.s. 44, 57-73 (1996) (indian commerce clause); florida prepaid postsecondary education expense board v. college savings bank, 527 u.s. 627, 635 (1999) (interstate commerce clause and patent clause); alden v. maine, 527 u.s. 706, 755 (1999) (interstate commerce clause). 151 534 u.s. 533 (2002). 152 id. at 544-545. cf. nevada department of human resources v. hibbs, 538 u.s. 721, 724-726 (2003) (statutory provision that allows party to seek money damages against a “state or political subdivision thereof” or “any agency of state” constitutes a clear statement). 153 517 u.s. 44 (1996). 154 u.s. const., art. i, § 8, cl. 3. 155 491 u.s. 1 (1989). 962 colum. j. race & l. [vol. 14:930 powers, including those contained in article i. in alden v. maine,156 the court subsequently held that “the states’ immunity from private suits in their own courts” is likewise “an immunity beyond the congressional power to abrogate by article i legislation.” were the rule otherwise, said the court, “the national government would wield greater power in the state courts than in its own judicial instrumentalities.”157 even though congress may not use its article i powers to lift the states’ eleventh amendment immunity, congress may do so through a law enacted pursuant to the fourteenth amendment. the fourteenth amendment was ratified in 1868, 70 years after the eleventh amendment. section 5 of the fourteenth amendment expressly authorizes congress to enforce the amendment “by appropriate legislation”; this may include legislation that allows suit to be brought against a state. in fitzpatrick v. bitzer,158 the court thus upheld provisions of title vii of the 1964 civil rights act to the extent that they authorized state workers to sue the state for gender discrimination in employment. the court reasoned that the fourteenth amendment, which prohibits the states from denying equal protection of the laws, in effect modified the eleventh amendment by authorizing congress to subject the states to suit in federal or state court, if congress believed this was necessary to enforce the equal protection clause. as the court later explained: fitzpatrick was based upon a rationale wholly inapplicable to the interstate commerce clause, viz., that the fourteenth amendment, adopted well after the adoption of the eleventh amendment and the ratification of the constitution, operated to alter the pre-existing balance between state and federal power achieved by article iii and the eleventh amendment.159 if congress intends to abrogate a state’s sovereign immunity pursuant to § 5 of the fourteenth amendment, the abrogation must be both “congruent” and “proportional” to the actual violation of judicially recognized fourteenth amendment § 1 rights.160 this means that congress must identify a pattern of state violations of a judicially recognized constitutional right, create a statute that is plainly designed to ameliorate the violation of those constitutional rights, and devise a remedy that is tailored to the demonstrated pattern of state-induced constitutional violations. in recent years, the court has applied the congruence and proportionality requirements rather strictly, severely limiting congress’s ability to use its § 5 power to abrogate a state’s sovereign immunity. for example, in board of trustees of the university of alabama v. garrett,161 the court held that the attempted abrogation of state sovereign 156 527 u.s. at 753-754. 157 id. at 752. 158 427 u.s. 445 (1976). 159 seminole tribe of florida, supra note 153, 517 u.s. 44 at 65-66. 160 see allan ides, christopher n. may & simona grossi, constitutional law: individual rights § 1.5.2 (9th ed. 2022). 161 531 u.s. 356 (2000). 2024] the claim and the relief 963 immunity in title i of the americans with disabilities act (ada) was ineffective since the substantive provisions of title i, prohibiting disability discrimination in public employment, were neither congruent with nor proportional to any established pattern of state violation of constitutional rights of the disabled in the public employment setting. because title i in essence sought to create and protect rights that went beyond those guaranteed by § 1 of the fourteenth amendment, it exceeded congress’s § 5 power. four years later, in a case involving access to courthouses and court proceedings, the court upheld title ii of the ada, which prohibits discrimination against the disabled in the provision of public services.162 in contrast to title i, congress in enacting title ii had amassed a large “volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services,” including specifically their access to the courts.163 in addition to there being far more evidence of past discrimination in this title ii setting, the fourteenth amendment § 1 rights at issue in lane were also more fundamental than the title i right involved in garrett, making it far easier to show that the rights had been violated in the past. as the court noted in lane, the title i equal employment right at stake in garrett triggers mere rational basis review under the equal protection clause; by contrast, title ii “seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review”—including the right of access to the courts.164 once the lane court concluded that title ii sought to protect a group whose § 1 fourteenth amendment rights had in fact been violated, it went on to hold that congress, in invoking its § 5 power, may enact remedial, as well as preventative or prophylactic measures, the latter not being limited to state conduct that would itself violate § 1. with adequate findings, congress may thus invoke its § 5 power to prohibit state conduct that might not itself be found unconstitutional, as long as the legislation is congruent and proportional to the past § 1 violations.165 more recently, in allen v. cooper,166 the court rejected congress’s use of § 5 to adopt the copyright remedy clarification act of 1990 (crca). 162 tennessee v. lane, 541 u.s. 509 (2004). 163 id. at 526-528. 164 id. at 522-523. 165 compare nevada department of human resources v. hibbs, 538 u.s. 721 (2003) (family and medical leave act (fmla) provision authorizing state employees to sue their employer for failure to grant spousal or parental leaves, as required by act, was proper exercise of § 5 enforcement powers given history of gender discrimination in public and private employee benefit plans, even though this statutorily prohibited conduct might not itself be unconstitutional), with coleman v. court of appeals of maryland, 566 u.s. 30 (2012) (plurality opinion) (fmla provision authorizing state employees to sue their employer for failure to grant sick leave, as required by the fmla, was invalid exercise of § 5 enforcement power where there was no evidence that states had discriminatory sick-leave policies and where nothing in the congressional record suggested that congress had reason to believe women were being discriminated against in this respect). 166 140 s. ct. 994 (2020). 964 colum. j. race & l. [vol. 14:930 that act amended federal copyright law to expressly allow infringement actions to be brought against the states, thereby remedying the problem of states’ uncompensated takings of private property through copyright infringement. crca met the clear statement rule. moreover, before enacting it, congress received a 158-page report from the register of copyrights which, based on a year-long study, concluded that “copyright owners … will suffer immediate harm if they are unable to sue infringing states in federal court.”167 yet despite this “headline-grabbing conclusion,” said the court, neither the report nor the legislative history suggested that this was a serious problem. the report identified a dozen cases of possible state infringement, only two of which appeared to involve intentional or reckless state conduct that would violate the takings clause. “this is not, to put the matter charitably, the stuff from which section 5 legislation ordinarily arises.”168 moreover, congress’s crca solution—allowing states to be sued in all instances of copyright infringement—failed the congruence and proportionality tests. for it reached all state copyright infringements, including those lacking the requisite intent element, and allowed those suits even if state law afforded other means of redress sufficient to satisfy due process, such as through contract or unjust enrichment lawsuits. even though the court struck down crca, it went out of its way to encourage congress to give it another shot. the justices noted that crca was enacted before seminole tribe made clear that article i would not suffice, and before the court came up with the congruence and proportionality requirements. “but going forward,” said the court, “congress will know those rules. and under them, if it detects violations of due process, then it may enact a proportionate response. that kind of tailored statute can effectively stop states from behaving as copyright pirates. even while respecting constitutional limits, it can bring digital blackbeards to justice.”169 it remains to be seen what if anything congress now does. the court’s rationale in seminole tribe would seemingly allow congress to abrogate the states’ eleventh amendment immunity through legislation enacted under other, later-adopted amendments that expressly restrict conduct on the part of the states—such as the thirteenth and fifteenth amendments. to date, however, the court has limited congress’s power to abrogate to legislation passed pursuant to the fourteenth amendment. the effect of the eleventh amendment may be to make it extremely difficult to hold a state accountable for having violated the constitution or laws of the united states. through the stripping doctrine, state officials can usually be enjoined by a federal or state court from engaging in future illegal conduct. redress for past violations, however, is generally impossible other than through whatever remedies a state may itself have consented to provide. and since congress’s ability to abrogate the states’ eleventh amendment immunity is essentially limited to enforcing the 167 id. at 1006. 168 id. 169 id. at 1007. 2024] the claim and the relief 965 fourteenth amendment, courts can award damages for a state’s violation of federal environmental, welfare, and other federal laws only if the state has waived its sovereign immunity, or if those damages will come from the pocket of an individual state official—a pocket that will often be either empty or protected by common law immunity. thus, as the supreme court noted in a case where a state withheld welfare benefits in violation of federal law, “whether or not the [plaintiffs] will receive retroactive benefits rests entirely with the state, its agencies, courts, and legislature, not with the federal court.”170 to the extent that the eleventh amendment deprives plaintiffs of federal redress for harms they suffer at the state’s hands, the amendment may thus encourage a state to ignore federal law. if a state violates an individual’s federal constitutional or statutory rights, the worst that will ordinarily happen to the state is that one of its officials will be enjoined by a federal court from continuing to violate the law. while such relief may cost the state money in the future, the state will normally not have to compensate for any of the injuries it has already caused. yet in alden v. maine,171 the supreme court rejected the proposition that its broad reading of the eleventh amendment confer[s] upon the state a…right to disregard the constitution or valid federal law.…we are unwilling to assume that states will refuse to honor the constitution or obey the binding laws of the united states. the good faith of the states thus provides an important assurance that “[t]his constitution, and the laws of the united states…shall be the supreme law of the land.”172 the court also noted that states are not necessarily shielded from damages liability, even in situations like alden where congress lacks the power to abrogate the state’s sovereign immunity because the federal law in question (e.g., the fair labor standards act (flsa)) was enacted under article i. in these situations, said the court, congress may authorize a suit to be brought against the state in the name of the united states, thereby invoking one of the recognized exceptions to the eleventh amendment. the flsa, under which the private employees unsuccessfully sued the state of maine in alden, in fact authorizes the united states to sue the states in federal court to recover damages on behalf of aggrieved state workers. yet as justice souter noted in his dissent: [u]nless congress plans a significant expansion of the national government’s litigating forces to provide a lawyer whenever private litigation is barred by today’s decision and seminole tribe, the allusion to enforcement of private rights by the national government is probably not much more than whimsy. facing reality, congress specifically found…”that the enforcement capability of the secretary of labor is not alone sufficient to provide redress in all or even 170 quern v. jordan, 440 u.s. 332, 348 (1979). 171 527 u.s. 706 (1999). 172 id. at 755. 966 colum. j. race & l. [vol. 14:930 a substantial portion of the situations where compliance is not forthcoming voluntarily.”…one hopes that such voluntary compliance will prove more popular than it has in maine, for there is no reason today to suspect that enforcement by the secretary of labor alone would likely prove adequate to assure compliance with this federal law in the multifarious circumstances of some 4.7 million employees of the 50 states of the union.173 while congress might try to deal with this problem by authorizing private parties to bring a so-called qui tam action on behalf of the united states, thereby relieving the u.s. justice department of the litigation burden, the supreme court has cast doubt on whether a qui tam action against a state would qualify as a suit by the united states so as to trigger one of the exceptions to the eleventh amendment.174 the court in alden asserted that “[t]he principle of sovereign immunity as reflected in our jurisprudence strikes the proper balance between the supremacy of federal law and the separate sovereignty of the states.”175 yet the notion that a state is effectively immune from damages—no matter how wilful or flagrant its violation of the constitution or laws of the united states—seems fundamentally at odds with the principle of federal supremacy. this anomaly is a result of the court’s reinterpretation of the eleventh amendment in hans v. louisiana176 and its progeny. had the court instead adhered to the text of the eleventh amendment—which merely bars suits against a state by citizens of another state, or by citizens or subjects of foreign countries—rather than expanding its scope to enshrine a broad doctrine of sovereign immunity, federal and state courts would have been able to entertain damages actions against a state on the basis of the state’s violation of federal law. such actions would not have been affected by the eleventh amendment’s repeal of the citizen-state and alien-state clauses in article iii, for they could have entered federal court as cases “arising under” federal law. in recent years some justices have called for overturning hans’s interpretation of the eleventh amendment,177 but a majority of the court has so far at least declined the invitation. besides the above doctrinal barriers to §1983 actions, framing the proper injury and seeking the right relief seem to have become a particularly challenging task in §1983 actions. more recently, in gill v. whitford,178 democratic voters filed § 1983 action against members of wisconsin elections commission, claiming that the state legislative redistricting plan drafted and enacted by a republican-controlled wisconsin legislature was unconstitutional partisan gerrymander that 173 id. at 810. 174 vermont agency of natural resources v. united states ex rel. stevens, 529 u.s. 765, 786-787 (2000). 175 527 u.s. at 757. 176 134 u.s. 1 (1890). 177 see, e.g., atascadero state hospital v. scanlon, 473 u.s. 234, 247-302 (1985) (brennan, j., marshall, j., blackmun, j., and stevens, j., dissenting). 178 138 s.ct. 1916 (2018). 2024] the claim and the relief 967 systematically diluted voting strength of democratic voters statewide based on their political beliefs. thus, the state legislative redistricting plan violated the equal protection clause and first amendment rights of association and free speech, by two gerrymandering techniques known as “cracking,” or dividing party's supporters among multiple districts so they fell short of majority in each one, and “packing,” or concentrating one party's backers in a few districts that they won by overwhelming margins. a three-judge panel of the issued an injunction for the plaintiffs, but the supreme court reversed, finding that the plaintiffs had no standing: the plaintiffs’ mistaken insistence that the claims in baker and reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. in those malapportionment cases, the only way to vindicate an individual plaintiff’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” here, the plaintiffs’ claims turn on allegations that their votes have been diluted. because that harm arises from the particular composition of the voter’s own district, remedying the harm does not necessarily require restructuring all of the state’s legislative districts. it requires revising only such districts as are necessary to reshape the voter’s district. this fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.”179 however, it is hard to see how the plaintiffs’ injury was limited to the injury that they had suffered as individual voters and did not instead extend to the statewide harm to their interest in their collective representation in the legislature and in influencing the legislature’s overall composition and policymaking, as in fact the plaintiffs described in their brief.180 and it is difficult to understand how the court would downplay this injury and downgrade it to “generalized grievance,”181 to then conclude that the case was not justiciable. the examination of § 1983 actions within this context brings to the forefront the substantial hurdles imposed by the eleventh amendment and the doctrine of sovereign immunity, which collectively form a formidable barrier against claims directed at the state. these constitutional and legal constructs emphasize the deeply rooted principle of state sovereignty, effectively shielding states from being unwilling defendants in federal courts. the nuanced interplay between the eleventh amendment and sovereign immunity not only complicates the pursuit of redress under § 1983 but also delineates the boundaries of legal recourse available against state entities and officials. particularly, the eleventh amendment presents a nuanced barrier that requires plaintiffs to navigate a legal landscape where states are generally immune from suit in federal court, except under specific circumstances where such immunity is abrogated or waived. the 179 id., at 180 id., at 1931. 181 id. 968 colum. j. race & l. [vol. 14:930 doctrine of sovereign immunity further complicates this terrain, reinforcing the state's protection against legal actions that seek redress from the state treasury or challenge state sovereignty directly. these doctrines underscore the meticulous care with which plaintiffs must frame their § 1983 claims, ensuring they target individual state officials in their personal capacity or invoke established exceptions like the ex parte young doctrine for prospective relief. in essence, the eleventh amendment and the doctrine of sovereign immunity serve as critical filters through which § 1983 actions must be processed, underscoring the delicate balance between upholding state sovereignty and ensuring accountability for violations of federal rights. for practitioners and scholars, understanding these hurdles is paramount, as it shapes the strategies employed in litigating § 1983 actions and influences the evolving jurisprudence surrounding state accountability under federal law. the emphasis on these doctrines in this analysis highlights their central role in defining the contours of legal action against state actors, a fundamental aspect for those seeking justice through the federal legal system. vi.the effects of the precedent and how to reverse the trend the § 1983 actions that have been filed since lyons have often encountered insurmountable standing barriers. those seeking injunctive relief based on specific wrongful conduct have typically seen their claims dismissed on standing grounds because, as the court said in atascadero, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief…if unaccompanied by any continuing, present adverse effects.’”182 black lives matter d.c. v. trump183 is one of the many [most recent] lyons repeats. there, among other things, the plaintiffs brought a class action against former president trump, former attorney general william barr, the district of columbia police, and various other federal and local officials. plaintiffs asserted bivens constitutional as well as federal statutory claims arising from law enforcement’s response to plaintiffs’ protests near the white house on june 1, 2020. plaintiffs alleged that peaceful protesters had assembled in lafayette park across from the white house to protest racial injustice after the death of george floyd and other black people at the hands of law enforcement and that, in response to the peaceful protest, officials, wielding batons, sprayed the crowd with tear gas, flash-bang grenades, smoke bombs, and rubber bullets. although the law enforcement officers provided warnings before dispersing the crowd, plaintiffs alleged that those warnings were inadequate because they were given via a megaphone 50 yards away from the closest protestors, and thus were “barely audible. the plaintiffs black lives matter (“blm”) alleged that the purpose of the law enforcement response was to clear the area to permit the president to walk to a photo opportunity at a nearby church. what resulted was unprovoked violence. the crowd fled lafayette 182 abbott v. pastides, 900 f3d 160, 176 (4th cir. 2018), cert. denied, 139 s. ct. 1292 (2019); see also thompson v. lengerich, 798 fed. appx. 204, 210-211 (10th cir. 2019); rezaq v. nalley, 677 f.3d 1001, 1009 (10th cir. 2012). 183 2021 wl 2530722 (d.d.c. june 21, 2021). 2024] the claim and the relief 969 square only to be met by additional district of columbia police officers who fired tear gas at the fleeing crowd.184 the plaintiffs alleged that they suffered injuries, both physical and psychological, as a result of the law enforcement response to the protest, and that they “fear[ed] further retaliation in the future…if they continue to observe, record, or participate in constitutionally protected activity.”185 plaintiffs sought injunctive relief against the defendants under the first, fourth, and fifth amendments, alleging that the practices of “deploying physical force against demonstrators to remove them from places in which they have gathered with others to express their political opinions,” and “deploying physical force without provocation, warning, or legal grounds to do so, against demonstrators to force them to halt or move,”186 violated their constitutional rights. the court, after relying on lujan for the elements of standing, noted that: when plaintiffs seek injunctive relief, as they do here, “past injuries alone are insufficient to establish standing.” instead, “[a]n allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” of note, “allegations of possible future injury are not sufficient.” future injuries—even those with an “objectively reasonable likelihood” of occurring—are not adequate to establish standing.187 even an “objectively reasonable likelihood” is not enough to give access to justice. instead, the future harm must be “certainly impending,” a standard that few future harms will ever be able to meet. the court held that the defendants’ clearing of lafayette square on the day of the protest did not itself establish “either an ongoing injury or an immediate threat of future injury,” for the june 1 assembly was over. plaintiffs therefore lacked standing to seek an injunction requiring defendants to change their practice of using physical force against protestors.188 in an effort to show that their injury was in fact “ongoing,” plaintiffs alleged “ongoing chilling effects resulting from the events of june 1, 1920.”189 but, said the court, “such allegations of a subjective chilling effect resulting from the defendants’ past actions are insufficient to confer standing.190 and the plaintiffs likewise failed to establish standing based on an immediate threat of future harm,191 for even if they alleged that they planned to continue demonstrating in or near lafayette square, and that they feared law enforcement officers might again disperse or attack them again, those fears still rested on the isolated event of the day of the protest, 184 id., at *1-2. 185 id., at *2. 186 id., at *8. 187 id., at *8 (some emphasis added) (internal citations omitted). 188 id. at *8. 189 id. at *9. 190 id. (emphasis added). 191 id. 970 colum. j. race & l. [vol. 14:930 and not on a law or policy as the basis for this claimed risk of future harm.192 “[p]laintiffs do not challenge a large-scale policy—or any policy at all. rather, plaintiffs challenge...the implied threat to take similar actions in the future at the president’s whim.”193 because the plaintiffs “do not claim that a law or policy has ‘ordered or authorized police officer[s] to act in such manner’ as allegedly occurred on june 1, the plaintiffs’ claims of impending future harm are too speculative to confer standing to seek an injunction.”194 thus, as in lyons, in order to prevail against an objection to standing, the plaintiffs would be required to prove that they would again demonstrate in lafayette square; that agencies headed by the officialcapacity defendants would again respond to the demonstration; that federal officers would again use that same law enforcement response as a cover to deliberately target non-violent peaceful demonstrators; and that one or more of the plaintiffs would again be targeted.195 only then would their threatened harm be “certainly impending.” by contrast, their “hypothetical chain of events [was] simply too speculative to confer standing for injunctive relief.”196 similar problems encountered the plaintiff in macissac v. town of poughkeepsie.197 in his complaint, macissac alleged that, when operating his vehicle on a public highway in the poughkeepsie, he was stopped by police officers, who arrested him on suspicion of driving while intoxicated, and that after he was handcuffed, the officers used a taser stun gun on him three times; bent his back, arms, and legs in a manner that caused significant pain; and used excessive force beyond that needed to control him. he did not resist arrest.198 macissac filed a §1983 action against the town and the police officers, seeking compensatory and punitive damages against the officers, compensatory damages and injunctive relief against the town, and attorneys’ fees and costs under §§ 1983 and 1988. under the supreme court’s decision in lyons, the plaintiff here clearly had standing to seeking damages. however, the town moved to dismiss plaintiff’s claim for injunctive relief on standing grounds. in granting the motion, the court focused on the redressability requirement: the third prong of this test—redressability—has been interpreted to mean that a plaintiff’s standing depends on the form of relief requested. see friends of the earth, 528 u.s. at 185 (“[a] plaintiff must demonstrate standing separately for each form of relief sought.”) in seeking prospective relief like an injunction, a plaintiff must show that he can reasonably expect to encounter the same injury again in the future—otherwise there is no remedial benefit that he can derive from such judicial decree. past injury 192 id. 193 id. 194 id. 195 id. 196 id. 197 770 f.supp.2d 587 (s.d.n.y. 2011). 198 id., at 592. 2024] the claim and the relief 971 alone does not establish a present case or controversy for injunctive relief. rather, “the injury alleged must be capable of being redressed through injunctive relief ‘at that moment.’”199 after describing lyons as the case that seemed most on point, the court noted that lyons had long been criticized because “the restriction that [it] places on the availability of injunctive relief in section 1983 cases is significant.”200 the court suggested that little attention had been paid to the fact that lyons requires a more stringent showing by plaintiff for standing to seek equitable relief than monell v. department of social service201 “requires for the same plaintiff to receive that relief.”202 in other words, the factual allegations that, if proven, may entitle a plaintiff to an injunction under monell seems not enough for the same plaintiff to have standing to seek injunctive relief under lyons.203 to put it differently, the court’s decisions seem to allow a plaintiff to receive injunctive relief on a basis that would not afford standing to seek it. the court suggested that this anomaly may have come about for two reasons: first, under lyons and its progeny, “a plaintiff seeking injunctive relief must demonstrate both a likelihood of future harm and the existence of an official policy or its equivalent.” an official policy sanctioning the illegality is required for a plaintiff to have equitable standing, but this by itself is not enough if there exists no reasonable likelihood that the plaintiff, in going about his everyday activities, will be affected by the implementation of that policy in the future. in contrast, an official policy theoretically is sufficient to enjoin the unconstitutional acts of a municipality and its officers under monell.204 “logically then,” said the court, “equitable relief ought to be available in a section 1983 case, if the court deems it appropriate, on the same record on which damages are available.205 moreover, said the court, because a plaintiff must prove an official policy to hold a municipality liable for any and all forms of relief, and because the relief requested has no bearing on what constitutes an official policy, then proof of an official policy ought to entitle the plaintiff to whatever relief the court considers appropriate. so long as the plaintiff has proved municipal liability under monell, it is within the power and discretion of the court to remedy the constitutional deprivation by awarding monetary damages or equitable 199 id. at 593-594 (some internal citations omitted). 200 id., at 594-595. 201 436 u.s. 658 (1978). 202 id., at 595 (emphasis in original). 203 id. 204 id. (internal citations omitted) (emphasis added). 205 id., at 596 (internal citations omitted). 972 colum. j. race & l. [vol. 14:930 relief or both, depending on its assessment of what the particularities of the case require.”206 the court went on to suggest that the supreme court appears to have endorsed this view in los angeles county v. humphries,207 where it held that “monell’s ‘policy or custom’ requirement applies in §1983 cases irrespective of whether the relief sought is monetary or prospective.”208 it follows then, “[l]ogically,” said the macissac court, that “equitable relief ought to be available in a section 1983 case, if the court deems it appropriate, on the same record on which damages are available.”209 ironically, this view—now seemingly endorsed by the supreme court in humphries—was first expressed by the four dissenting justices in lyons. the lyons dissenters flatly rejected the notion that a court could have jurisdiction to adjudicate a request for damages but not for injunctive relief, where both depended on a demonstration that an official policy was unconstitutional. they clamored against the majority’s decision to “fragment a single claim into multiple claims for particular types of relief.” now, twentyseven years later, an [sic] unanimous supreme court similarly has rejected a “relief-based bifurcation” of the logic of monell. while nothing in humphries suggests an intention to retreat from the holding of lyons, which does bifurcate standing to bring a monell claim on the basis of the relief sought, how the two are to be squared remains to be seen.210 the second possible reason for this anomaly—i.e., that it’s easier to obtain relief under monell than it is to have standing under lyons—is that lyons defines its “official policy” requirement in a significantly more limited way than the courts have interpreted this same requirement under monell.211 “both standing under lyons and municipal liability under monell require an official policy sanctioning the unconstitutional conduct at issue. but a policy sufficient to hold a municipality liable may be too ‘unofficial’ to give the plaintiff standing to sue for equitable relief in the first place.”212 this is not so under lyons.213 “in sum,” continues the court, “‘lyons ha[s] effectively rendered injunctive relief against police misconduct virtually unobtainable, even 206 id. 207 131 s. ct. 447 (2010). 208 id. at 453-454. 209 macissac, supra note 8, 770 f.supp.2d at 596. 210 id. 211 id. 212 macissac, at 596-597. as the court points out, under monell, a municipality’s failure to train its officers may constitute a “policy” actionable under §1983 where (1) “the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact,” and (2) there is a causal link between the “identified deficiency in a city’s training program” and the constitutional injury suffered. 213 id. see also part iv. 2024] the claim and the relief 973 where the misconduct involves patterns of abuse or unconstitutional official policies’ that would entitle a plaintiff to relief under monell.”214 and thus, when trying to resolve “the incongruous result of lyons that an equitable claim on which monell liability properly could be found will fail virtually every time for lack of standing suggests to this court that the issue of justiciability ought remain separate from the appropriateness of a particular remedy.”215 this is because lyons, “by requiring that a complaint demonstrate not that some form of judicial relief is capable of redressing the plaintiff’s alleged injury but rather that injunctive relief is the appropriate and necessary redress, effectively denies litigants the opportunity to be heard on the merits and denies federal courts their power to remedy constitutional harms as they see fit.”216 and of course the court notes that injunctive relief should be granted with caution, especially when plaintiffs in §1983 actions are seeking a judicial decree to get a structural reform of a local law enforcement agency.217 “but whether a plaintiff has met the ‘likelihood of irreparable harm standard for injunctive relief should be decided by the court after the parties have developed a factual record,”218 as “[o]nly after the facts have unfolded can a court intelligently weigh the potential threat of harm in light of other factors bearing on whether an injunction is the most effective and appropriate remedy…[o]n a developed record/ the failure to demonstrate a likelihood of irreparable harm, or a “real and immediate threat of injury’ as lyons termed it, should be a remedial barrier, but not a jurisdictional one.”219 applying the law to the facts of the case, though, the court granted the defendant’s motion to dismiss because the case was distinguishable from lyons, as he had failed to allege facts demonstrating with any credibility that he himself would suffer the same injury again. among the reasons for such failure was the fact that he had not been stopped for a minor traffic violation but on suspicion of dwi, an offense to which he later pled guilty.220 and this distinguishes this case from those in which the plaintiffs had standing to sue for injunctive relief in part because their likelihood of suffering the same harm again did not depend on them 214 id., at 596. in cadiz v. kruger, 2007 wl 4293976, at *10 n. 9 (n.d.ill. nov. 29, 2007), the court noted that “[w]e are mindful ... that some plaintiffs may seek not only monetary damages on a monell claim, but also may seek injunctive relief against specific police practices.... however, in the typical excessive force case that would give rise to an accompanying monell claim, a plaintiff would lack standing to seek prospective injunctive relief for a past event that (as to that plaintiff) has no foreseeable likelihood of recurring.” id. 215 id., at 598. 216 id. see also see richard h. fallon, jr., of justiciability, remedies, and public law litigation: notes on the jurisprudence of lyons, 59 n.y.u. l. rev., 1, 7 (1984) (“lyons forecloses a federal court from obtaining pertinent information about the lawfulness of the defendant’s conduct and from balancing the various interests, before deciding whether relief ought to be provided”). 217 id., at 598. 218 id. 219 id. 220 id., at 601. 974 colum. j. race & l. [vol. 14:930 willfully breaking the law.221 and even if macissac faced a realistic threat of being stopped on suspicion of dwi again, nothing in the complaint suggested a reasonable likelihood that, during such a stop and possible arrest, the town’s officers again would use a taser stun gun.222 the court then notes that “[w]hether these allegations, if proven, would give rise to municipal liability under monell is irrelevant because they do not confer standing to sue for injunctive relief under lyons.”223 although the macissac opinion endorses much of our theory of standing and jurisdiction and relief, it falls short of fully embracing such theory, applying it to the facts of the case accordingly and truly giving meaning to §1983 actions and injunctive relief there sought. the judge, in fact, concluded that the plaintiff had no standing because, like in lyons, “[the] likelihood of suffering the same harm again did not depend on them willfully breaking the law.”224 this conclusion again conflates right, injury, jurisdiction, and remedy. whether this likelihood existed or not should be a merits inquiry, not a jurisdictional injury. in other words, an “objectively reasonable likelihood” should be enough to show a “case or controversy” within article iii, § 2 of the constitution, a case capable of judicial resolution. in any event, macissac remains a powerful opinion that could be used to reverse the problematic trend that originated with lyons and that is increasingly making a mockery of injunctive reliefs in §1983 actions. what will be required is a clear identification of the claim and relief, insisting on the idea that the relief is not part of the claim, and that the injunctive relief is remedial or procedural not jurisdictional, and that, as the court in macissac says, “[o]nly after the facts have unfolded can a court intelligently weigh the potential threat of harm in light of other factors bearing on whether an injunction is the most effective and appropriate remedy…[o]n a developed record/ the failure to demonstrate a likelihood of irreparable harm, or a “real and immediate threat of injury’ as lyons termed it, should be a remedial barrier, but not a jurisdictional one.”225 vii. conclusion over forty years after lyons, police brutalities, deaths, and the consequences of those brutalities continue. we have tools to revert the trend, and the above considerations and analysis should help return to §1983 its meaning and force, for the preservation of our constitutional system and through the enforcement and protection of constitutional rights. as martin luther king put it, “[i]njustice anywhere is a threat to justice everywhere. we are caught in an inescapable network of mutuality, tied in a single garment of destiny. whatever affects one directly, affects all indirectly.”226 to effectively reverse the restrictive trend established by the lyons decision regarding access to injunctive relief, it's important to emphasize a 221 id. 222 id. 223 id. 224 id. (emphasis added). 225 id. 226 martin luther king, jr., letter from birmingham jail, april 16, 1963. 2024] the claim and the relief 975 nuanced judicial approach. this approach should recognize the distinction between the claim of a constitutional violation and the type of relief being sought. the emphasis here is on ensuring that individuals who allege a breach of their constitutional rights have a clear pathway to the courts, whether they are seeking damages or an injunction. a more flexible understanding of standing is also essential. rather than narrowly focusing on whether the same individual is likely to suffer the same harm again, the judiciary should consider the broader implications of systemic or policydriven misconduct. this understanding would allow for the acknowledgment of potential impacts on the community or individuals who might encounter similar policies or their effects in the future. additionally, courts should allow for the thorough development of the factual record before making determinations about the appropriateness or feasibility of injunctive relief. this approach would enable more informed decisions that accurately consider potential ongoing harms and the realities of implementing specific remedies. furthermore, acknowledging the systemic implications of certain misconduct is vital. when actions stem from broader policies or widespread practices, understanding these broader contexts can help in preventing future violations and ensuring community-wide protections. lastly, by facilitating access to injunctive relief in cases of constitutional violations, courts can affirm their critical role in safeguarding civil rights and liberties. this not only helps in addressing individual grievances effectively but also plays a crucial part in deterring and rectifying systemic issues, reinforcing the judiciary's role in upholding justice and equity. in my manuscript, i have delved into the complex interplay between the precedent and the ongoing struggle for racial justice, particularly through the lens of §1983 actions. this exploration is deeply relevant to the field of racial justice work for several reasons. first, my analysis addresses the significant challenges related to standing and the obstacles individuals and groups face when pursuing justice for constitutional violations, especially in scenarios involving law enforcement misconduct. by evaluating how decisions like lyons have erected formidable barriers for those seeking injunctive relief, my work underscores the pressing need to dismantle these legal hurdles to better combat systemic racial discrimination and police brutality. furthermore, my focus on reversing the restrictive trends set by precedents like lyons resonates with a broader imperative in racial justice advocacy: the need to challenge and reform institutional practices that uphold racial inequities. in advocating for a more accessible and responsive legal framework, my manuscript is inherently linked to efforts aimed at ensuring that victims of racial injustice have viable pathways to demand accountability and systemic change. moreover, by examining cases such as black lives matter d.c. v. trump, my work situates itself within the vital national discourse on race, protest, and state power. it highlights the role of legal strategies within the larger racial justice movement, illustrating how litigation can serve as a powerful mechanism to redress wrongs, mobilize public awareness, and catalyze institutional reform. 976 colum. j. race & l. [vol. 14:930 my contribution to the field of racial justice work is, therefore, multifaceted. through my analysis, i aim to provide a detailed critique of current legal barriers and propose pathways for reform, thereby offering insights that could inform both legal strategies and broader advocacy initiatives. by situating my work within the context of ongoing racial justice efforts, i am engaging with and contributing to a critical dialogue aimed at reshaping the legal landscape to better reflect the principles of equity and justice. in doing so, my work builds upon and contributes to a rich tradition of racial justice scholarship and activism. it echoes and amplifies the calls for justice articulated by organizations like the naacp legal defense and educational fund, the american civil liberties union, and the movement for black lives and black lives matter, all of which have employed legal advocacy as a tool to confront and dismantle systemic racism. by critically analyzing legal precedents and advocating for change, my manuscript aims to be part of this vital continuum of efforts to secure racial justice and equality. i. introduction ii. the claim and the relief iii. standing iv. linda r.s. v. richard d. and city of los angeles v. lyons v. stating a claim, seeking relief, and establishing standing in §1983 actions vi. the effects of the precedent and how to reverse the trend vii. conclusion columbia journal of race and law vol. 13 may 2023 no. 1 reconstruction’s lessons susan d. carle in the current moment in the legal struggle for racial equality in the united states, the nation seems at risk of repeating its history. the roberts court has failed to fulfill its charge under the reconstruction amendments to vigorously promote and enforce civil rights protections, and the other branches of government have proved ineffectual or unwilling to step into the breach. the racist far right is rising and the national electorate appears unable to organize in favor of racial justice priorities. in recognition of these partial analogies between conditions then and now, this article mines the history of reconstruction and its aftermath for lessons pertinent to the racial justice struggle today. it asks what lessons racial justice activists and legal scholars might glean from that history to help them grow their tally of gains and shrink their tally of losses despite today’s less than ideal legal and political conditions. what the history of reconstruction teaches is that legal prescription and doctrinal manipulation alone will not bring about greater racial equality; having learned that lesson from reconstruction’s history, today’s racial justice activists and scholars should direct their efforts towards exploring what new approaches might be effective despite today’s less than optimal legal and political conditions. i. introduction.......................................................................................736  professor of law, american university washington college of law (wcl). i wrote a first draft of this article while a visiting professor of law at washington and lee university school of law (w&l) and thank w&l for that opportunity and research support resources. i also thank wcl for continuing support as my home base. research assistants catherine blalock (wcl 2024), justin jarrett (w&l 2023), sabrina matlock (w&l 2022), john olorin (wcl 2022), and lillian spell (w&l 2023), provided excellent research assistance, and the students in my history of civil rights lawyering seminar at w&l provided fresh inspiration. this scholarship could not have been carried out without the expert assistance of wcl law library director adeen postar and acting director of the w&l law library franklin runge. i benefited greatly from discussion with john harrison and excellent editing from walter armstrong iii. i also gained much from presenting earlier versions of this article at the duke law school colloquium on civil rights enforcement, including from the many helpful comments and questions by students and professors maggie lemos and darrell miller; the university of minnesota law school’s 40th anniversary symposium of journal of inequality; and the w&l faculty workshop. i especially appreciated the collegiality of w&l professor emeritus samuel calhoun, who read the manuscript with care, pointed out errors and generously plied me with additional sources and discussion. all mistakes remain my own. 2023] reconstruction’s lessons 735 ii. reconstruction between 1863 and 1868: lessons learned ..............742 a. enacting the thirteenth amendment .......................................743 b. land and social welfare ............................................................744 c. law’s inefficacy when not supported by the national political will...............................................................................748 iii. reconstruction after 1868: the fifteenth amendment and the force acts of 1870 and 1871 .............................................................759 a. congress’s changed perception .................................................761 b. the enforcement acts ................................................................767 iv. reconstruction’s demise ...................................................................770 v. epilogue & conclusions ....................................................................778 a. a short epilogue ........................................................................778 b. conclusions ................................................................................781 1. be skeptical about the effect of words on paper alone ....781 2. prosecute violence ..............................................................783 3. promote social welfare rights ...........................................783 4. emphasize the fundamental nature of the right to vote .....................................................................................785 5. further explore the relationship between law and human psychology .............................................................785 vi. conclusion .........................................................................................789 736 colum. j. race & l. [vol. 13:734 i. introduction in the current moment in the legal struggle for racial justice in the united states, the nation appears at risk of repeating its history. the country stands at a time of some hope but more cause for pessimism. the current united states supreme court has exhibited hostility towards key legal priorities of the racial justice movement,1 and all indications point to this trend continuing or getting even worse. leading commentators on race issues have suggested that the united states is headed back to the postreconstruction era, sometimes referred to as “redemption” in reference to southern states’ reassertion of white supremacy in their state governments, along with obliterating civil rights gains, after 1876.2 in that period the court undid much of the legal work of advocates of racial equality during reconstruction.3 public intellectual and new york times opinion columnist jamelle bouie has written, for example: “if the civil rights movement was second reconstruction, then—if we need a name for today’s push against its key measures—you could do worse than the second redemption.”4 the nation’s justice correspondent elie mystal argued: “we have literally been here before, when the supreme court remained inert as the fourteenth and fifteenth amendments were violated with impunity.”5 according to mystal, “the conservatives on this [c]ourt have now aligned themselves with the very worst courts that have propped up white supremacy throughout american history.”6 and the atlantic staff writer adam serwer, after pointing out a number of analogies between the opinions of post-reconstruction courts and the roberts court, forecast: “not since the end of reconstruction has the u.s. government been so firmly committed to a single, coherent program uniting a politics of ethnonationalism with unfettered corporate power. as with redemption, as the end of reconstruction is known, the consequences could last for generations.”7 scholars, too, point out that the roberts court is failing to fulfill its charge under the reconstruction amendments8 to vigorously enforce civil 1 for examples of such cases, see infra note 13 and further discussion in part v.a. 2 see reconstruction vs. redemption, nat’l endowment for the humans. (feb. 11, 2014), https://www.neh.gov/news/reconstruction-vs-redemption [https://perma.cc/pt2gaa2p] (providing basic information about “redemption”). 3 see infra part iv. 4 jamelle bouie, the next assault on civil rights, slate (oct. 9, 2014, 10:53 am), https://slate.com/news-and-politics/2014/10/the-supreme-courts-next-attack-on-civil-rightsthe-justices-will-likely-end-the-fair-housing-acts-disparate-impact-rule.html [https://perma.cc/7r5g-nlc4]. redemption refers to the end of reconstruction, when “southern white militants regained control of state governments across the south with murder and terror, successfully disenfranchising the newly emancipated slaves.” adam serwer, the supreme court is headed back to the 19th century, the atlantic (sept. 4, 2018), https://www.theatlantic.com/ideas/archive/2018/09/redemption-court/566963/ [https://perma.cc/835f-cwp9]. 5 elie mystal, no attack on voting rights is too racist for this supreme court, the nation (feb. 8, 2022), https://www.thenation.com/article/society/supreme-courtalabama-voting/ [https://perma.cc/c9qm-lmwk]. 6 id. 7 serwer, supra note 5. 8 these are the thirteenth, fourteenth, and fifteenth amendments. u.s. const. amends. xiii, xiv, xv. https://www.thenation.com/article/society/supreme-court-alabama-voting/ 2023] reconstruction’s lessons 737 rights protections.9 their work illuminates the problems with the current court’s jurisprudence and offers diverse doctrinal prescriptions for how the court could do better. but their project has not been to ask why the reconstruction amendments did not work as well as racial justice advocates hoped they would. nor have they mined the historical record to determine what lessons from that past might help in a situation in which the court once again appears dead set on rolling back hard-won civil rights protections, thus repeating reconstruction’s history. this article takes that step, extracting lessons from the partial analogies that exist between now and then to help guide racial justice advocates at this historical moment. in his classic book on sorting valid methodologies for historical inquiry from the less so, professor david hackett fischer explains that analogies are useful tools for historical inquiry provided they are not stretched beyond their legitimate applicability in changed historical circumstances.10 building on the observations of the public intellectuals quoted above coupled with hackett’s enthusiasm about exploring partial analogies for better historical understanding, this article asks the following questions: what might today’s racial justice advocates learn from their abolitionist predecessors’ experiences during reconstruction and its aftermath? can studying that history provide lessons that may help avoid some of the mistakes of the past? and finally, if so, what specifics might today’s advocates gain from the lessons of reconstruction? of course, today’s circumstances differ greatly from those of the nineteenth century. as fischer warns, it is important never to fall into the fallacy of the “perfect analogy.”11 nevertheless, some repeating themes emerge among the many obvious differences between now and then. one involves the apparent similarities between the perspectives of the court today and the court in the post-reconstruction era, as the commentators quoted above have pointed out. like the post-reconstruction court, for example, the roberts court has struck down legislation congress enacted under its fourteenth and fifteenth amendment powers and drastically narrowed the interpretation of federal civil rights statutes.12 it has shown little compunction about reversing voting rights gains, including by 9 this literature is too large to cite comprehensively; for several recent, interesting examples, see, e.g., brandon hasbrouk, the antiracist constitution, 102 b.u. l. rev. 87, 108 (2022) (arguing for an “antiracist” interpretation of the reconstruction amendments); alexander tsesis, enforcement of the reconstruction amendments, 78 wash. & lee l. rev. 849, 891–907 (2021) (examining the civil rights records of both the rehnquist and roberts courts); christopher schmidt, thirteenth amendment echoes in fourteenth amendment doctrine, 73 hastings l. j. 723, 725–30 (2021) (discussing the fourteenth amendment as a continuation of the commitments made in the thirteenth amendment, and suggesting how this insight can improve fourteenth amendment interpretation). 10 david hackett fischer, historians’ fallacies: toward a logic of historical thought 243–44 (1970) (explaining that analogies “are very useful explanatory tools” that play an important role in “intellectual creativity” in all sorts of disciplines; for historians, analogies serve “as heuristic instruments for empirical inquiry” and “as explanatory devices”). 11 id. at 247. 12 see infra part iv. 738 colum. j. race & l. [vol. 13:734 invalidating a key provision of the voting rights act of 1965,13 thus creating a path for states to adopt voter suppression legislation all over again, just as redeemer state governments did at the end of reconstruction.14 not only has the roberts court proved no friend to the racial justice cause, the other two coordinate branches of federal government have often failed to provide a countervailing force against a regressive supreme court. today a dysfunctional congress is proving far from a strong ally for racial justice advocates. current federal executive branch leaders—despite the crucial support they received from racial justice advocates at a watershed electoral moment in 202015—have likewise failed to deliver decisive action on the racial justice front, despite the efforts of reformers from within and outside government.16 with the benefit of hindsight, might the current racial justice movement be able to make more progress, despite these current conditions, by learning from reconstruction’s past? for example, why today do racial justice advocates both outside and within academia continue to focus on proposing reforms within civil rights doctrines, given that the current court has no interest in entertaining such reforms? might all of this brilliant legal energy be better directed at reforms related to law, but outside the court’s direct supervision? additional similarities exist in political and social conditions today as compared to the reconstruction era—though it is also extremely important to acknowledge that vast differences exist between these two periods as well. civil rights advocacy during reconstruction and the racial 13 see shelby cnty. v. holder, 570 u.s. 529, 551–57 (2013), discussed further at infra part v.a. for other recent roberts court cases that have rolled back or declined to enforce voting rights protections, see brnovich v. democratic national committee, 141 s. ct. 2321, 2343–46 (2021) (holding that arizona’s bans on out-of-precinct voting and third-party gathering of mail-in and absentee ballots did not violate section 2 of the voting rights act of 1965, 52 u.s.c. § 10301); abbott v. perez, 138 s. ct. 2305, 2326–30 (2018) (upholding electoral maps despite the district court’s finding that the maps were drawn with discriminatory intent); bartlett v. strickland, 556 u.s. 1, 20–23 (2009) (holding that the voting rights act does not require state officials to redraw election district lines to help allow racial minority groups to elect a candidate of their choice); crawford v. marion cnty., 553 u.s. 181, 202–03 (2008) (upholding indiana voter identification law that produced racially disparate outcomes); and league of latin am. citizens v. perry, 548 u.s. 399, 443–47 (2006) (upholding racial gerrymandering that burdened the rights of minority voters in texas). 14 see infra part iv. 15 without the support of black civil rights leader and congressman james e. clyburn of south carolina, for example, current president joseph biden likely would not have won the democratic party nomination. see donna m. owens, jim clyburn changed everything for joe biden’s campaign. he’s been a political force for a long time, wash. post (apr. 1, 2020, 6:00 am), https://www.washingtonpost.com/lifestyle/style/jim-clyburnchanged-everything-for-joe-bidens-campaign-hes-been-a-political-force-for-a-longtime/2020/03/30/7d054e98-6d33-11ea-aa80-c2470c6b2034_story.html [https://perma.cc/zn9y-mqzh]. 16 see, e.g., matt zapotosky et al., merrick garland’s goal is to restore the integrity of the justice department. his legacy will still be defined by trump, wash. post (mar. 14, 2022, 6:00 am), https://www.washingtonpost.com/national-security/2022/03/14/merrickgarland-justice-trump/ [https://perma.cc/n684-y4qm] (noting that while attorney general merrick garland successfully prosecuted two high profile hate crimes cases, activists fault him for being too slow and cautious in pursuing racial justice issues, including police misconduct investigations). 2023] reconstruction’s lessons 739 justice movement today share roots in the same long, complex social movement known as abolitionism.17 indeed, in important respects, today’s racial justice movement is the direct descendent of abolitionism.18 in both time periods, racial justice advocates exhibit gradations in thought, espousing approaches ranging from radical to moderate to conservative.19 today, as then, tensions sometimes manifest themselves between the perspectives of leaders of color, who have most directly experienced racism, and well-meaning white advocates, who have not.20 racial equality movements with these complex features can lay claim to both gains and losses.21 this article will argue for striving to improve the tally of gains by examining what went wrong during reconstruction. to be sure, reconstruction did achieve important gains, some of which lay dormant for a century but then provided the basis for more gains during the 1960s. an important question today is how to lay further groundwork for more gains once political and legal conditions again become ripe for such progress. it also bears noting that before, during, and after reconstruction, the united states was viscerally and violently split on political opinions and fundamental values related to racial equality. the same is true today. indeed, the chasm today between the perspectives of members of the racist far right, on the one hand, and adherents of the racial justice cause, on the other, have direct roots in the conflicts of reconstruction and its bitter aftermath.22 the beliefs and ideologies of those who opposed equal rights for black persons before and after the civil war have been transmitted across generations to provide the basis—and often almost the very same arguments—for the rhetoric of the racist far-right today.23 as this article will argue, a useful path forward in these conditions might call on legal scholars and others to draw from other disciplines such as social neuroscience, which studies the brain-based reasons for racism, to find new approaches to mitigating racism through the design of law-related institutions and practices. as in the past, extreme racism is not a regional phenomenon, but a national problem.24 such extreme racism manifests itself, among other ways, through violence, often state-sponsored or state-supported, against 17 on abolitionism’s long roots, see kate masur, until justice be done: america’s first civil rights movement, from the revolution to reconstruction 8 (2021) (tracing abolitionism’s roots back to the revolutionary period). 18 id. at 355–56 (discussing multiple through-lines between today’s racial justice priorities and abolitionists’ work). 19 id. at 357 (noting that members of past racial justice movements had “blind spots” and differentiating between those “in the radical vanguard and others [who] proceeded with great caution.”) 20 cf. id. at 114 (noting that black abolitionists “consistently pushed their white would-be allies to think more expansively about racism and inequality”). 21 id. at 357 (noting that racial justice agitators sometimes won and sometimes lost, but that “[w]hen they failed, they kept trying”). 22 for one personal account of coming to terms with the transmission of racist ideology in a family across generations, see maud newton, ancestor trouble: a reckoning and a reconciliation xiv, 43, 214–25, 228, 311 (2022). 23 id. at 214–25. 24 on the rise of the racist far right in the traditional north of the united states, see in 2021, we traced 733 hate groups across the u.s., s. poverty l. ctr. (july 22, 2022, 2:26 pm), https://www.splcenter.org/hate-map [https://perma.cc/3s8c-u5rn] (offering a map showing the locations of organizations espousing racial hatred ideologies). 740 colum. j. race & l. [vol. 13:734 persons of color and their allies. of course, violence against persons of color has never stopped in the united states; it was and continues to be a major mechanism of racial suppression. any social movement that seeks to address racial injustice must make prosecuting racial violence a priority issue, as this article will discuss in part v below.25 as this article will show, reconstruction-era advocates learned through hard experience that legal prescription by itself—even through fundamental law inscribed in the constitution through the thirteenth, fourteenth, and fifteenth amendments26—may be insufficient to produce desired change in the face of resistance. those who championed those amendments (hereinafter “reconstruction’s advocates”) discovered they had been naïve in assuming that adding words to the constitution would produce racial justice reform in the face of a lack of support from coordinate branches of government including the executive, the courts, the states, and their citizens. republican congresses during reconstruction would gradually reach this understanding. but they did so only after they witnessed the full force of resistance against reconstruction. that resistance included a hostile federal executive, legal and extra-legal actions of the states, and violent white mobs and organizations. only after living through those experiences would a congressional majority appreciate the importance of enshrining the right to vote in the constitution through the fifteenth amendment. of all the harms the roberts court has done to the cause of racial justice, its undermining of the right to vote is arguably the most dangerous development. 27 voting is a right constitutive of all other rights, as the black abolitionists first and most clearly envisioned. the members of the national convention of colored men gathered in syracuse, new york, in 1864, made this perspective clear in proclaiming that the right to vote was the fundamental political right without which other protections would be meaningless.28 they presciently forecast an insight that congress would only come to share later—namely, that: we may conquer southern armies by the sword; but it is another thing to conquer southern hate. now what is the natural counterpoise against this southern malign hostility? this it is: give the elective franchise to every colored man of the south who is of sane mind, and has arrived at the age of twenty-one years, and you have at once four millions of friends who will guard with their vigilance, and, if need be, defend with their arms, the ark of federal liberty from the reason and pollution of her enemies.29 25 see infra part ii.c. 26 u.s. const. amends. xiii, xiv, xv. 27 see, e.g., cases cited supra note 13. 28 see proceedings of the national convention of colored men held in the city of syracuse, n.y., oct. 4, 5, 6 and 7, 1864; with the bill of wrongs and rights, and the address to the american people 55–61 (1864). 29 id. at 61. although these conventions called themselves “men’s” conventions, women also took an active part. see samantha de vera, ‘we the ladies . . . have been deprived of a voice’: uncovering black women’s lives through the colored conventions archive, 19 interdisciplinary stud. in the long nineteenth century 27, 36 (2018) (reporting that, 2023] reconstruction’s lessons 741 a majority of the reconstruction-era congressmen took much longer to appreciate this insight. in the early years of reconstruction, most members of congress opposed granting black men voting rights by constitutional amendment.30 instead, they sought to protect civil rights by granting congress greater enforcement powers over the states in supervising the protection of fundamental rights already found in the constitution. but they soon discovered that that strategy would be insufficient. they realized they needed to empower black citizens to champion their own rights through the political process, and they set out to do this through the fifteenth amendment. the fifteenth amendment, ratified in 1870, achieved far too little too late. rather than establishing a broad positive right to vote, it simply declared that discrimination in voting on the ground of race alone was illegal. even that limited dictate remained completely unenforced across the south for almost 100 years. the fifteenth amendment did, however, signal a new approach to protecting rights by empowering citizens. its aspirations have not been fully realized, but its potential remains potent, as discussed in part v.b.4 below. the fundamental nature of the right to vote was not the only new understanding congress reached. as this article discusses below, some reconstruction advocates began to understand that social welfare supports were essential to supplement a commitment to civic and political equality. they also learned that federal (and ideally state) prosecution of violence to protect citizens’ rights to life, safety, and bodily integrity was another fundamental piece of any commitment to civil rights equality. this article discusses these lessons in part v.b.3 and 4. the history of reconstruction and its aftermath offered still other lessons as well. a core lesson from reconstruction’s tragic history is that legal words on paper alone, even in the form of constitutional amendments, cannot suffice to bring about change.31 yet the alternatives, or supplements, to legal prescription and court-supervised enforcement to bring about racial justice reform remain insufficiently explored in legal theory today. scholars and activists must continue to bring new theoretical insights into play to understand what approaches might be most effective in bringing about greater racial justice despite existing political and legal conditions. this is the central argument of this article: given current conditions, racial justice advocates focused on law-related strategies need to think beyond traditional approaches. history suggests that making laws and urging the court to robustly enforce them works best when there are strong, effective political majorities in support of them backed by at the 1864 syracuse convention, edmonia highgate was invited to speak and did so, though her address was not recorded in the minutes and only briefly mentioned). on additional and earlier calls of douglass and other black abolitionist leaders and groups for granting black citizens broad voting rights, see xi wang, black suffrage and the redefinition of american freedom, 1860-1870, 17 cardozo l. rev. 2153, 2171–72 (1995). 30 see william gillette, the right to vote 31 (1965) (summarizing evidence in the congressional record establishing that, between 1865 and 1868, most republicans were “completely opposed to negro voting”). 31 see infra part v.b.1. 742 colum. j. race & l. [vol. 13:734 enthusiastic, coordinated support from all branches of government. those conditions do not pertain today. in light of that reality, this time may be best spent developing new theories for understanding racism and how to counter it, and then experimenting with those theories in arenas outside the court’s focus, including through voluntary action, best practices formation, new governance, and other democratic experimentalist methodologies. to develop these themes, this article will proceed in four parts. part ii examines the first part of reconstruction and the hard lessons reconstruction’s advocates learned. part iii traces the latter part of reconstruction, focusing especially on the seemingly rapid movement of a congressional majority from eschewing proposals protecting black men’s right to vote in the constitution toward prioritizing the right to vote at the center of the protections needed for the proper functioning of the american political system. it examines the statutes targeted at resisting statutes that congress passed and their partial success. part iv sketches the demise of reconstruction’s legal goals with the post-reconstruction court’s dismantling of much of what reconstruction congresses had sought to achieve. finally, part v offers a short epilogue and summarizes the lessons racial justice advocates today might extract from the reconstruction experience. ii. reconstruction between 1863 and 1868: lessons learned the first reconstruction32 congress (the 38th), composed of strong republican/unionist majorities in both houses, began its first session in 1863.33 the fact that the secessionist states were not represented there further ensured the pro-reconstruction republicans’ dominance. as civil rights champion charles sumner, republican senator from massachusetts, 32 one of the clearest starting points for “reconstruction” (meaning the process of “reconstructing” the south), is president lincoln’s december 8, 1863, proclamation of amnesty and reconstruction. see john hope franklin, reconstruction after the civil war 17 (1961); eric foner, reconstruction: america’s unfinished revolution, 1863-1877, at 35 (1988) [hereinafter foner, reconstruction]. that proclamation began with the promise of a pardon and return of all property—except in formerly enslaved persons—to all persons who had participated in “the existing rebellion,” provided that these persons take an oath to henceforth support the constitution and all acts of congress and proclamations of the president having reference to slaves. the proclamation of amnesty and reconstruction, freedmen & s. soc’y project (july 27, 2022, 1:01 pm), http://freedmen.umd.edu/procamn.htm [https://perma.cc/b4bk-ksqv]. congress, however, wanted to take a more aggressive stance, see franklin, reconstruction, at 17–19. this article’s focus is on congressional reconstruction. the historiography of reconstruction is vast, and this article cannot begin to do justice to it. because this article’s focus is on congressional reconstruction, it leaves out the vast historiography on lincoln. for the same reason, it largely leaves out the story of the activists whose work outside congress contributed so much to the amendment process, though i try not to ignore it completely. 33 see congress profiles: 38th congress (1863-1865), u.s. house of representatives, https://history.house.gov/congressional-overview/profiles/38th/ [https://perma.cc/l32r-zfnv] (last visited july 29, 2022); see also dates of sessions of the congress, u.s. senate, https://www.senate.gov/legislative/datesofsessionsofcongress.htm [https://perma.cc/z9gx-h9gw] (last visited july 29, 2022); senators of the united states, 1789 present, u.s. senate, https://www.senate.gov/artandhistory/history/resources/pdf/ chronlist.pdf [https://perma.cc/5t65-y73t] (last visited july 29, 2022). 2023] reconstruction’s lessons 743 put it: “our whole system is like molten wax, ready to receive an impression.”34 by the end of that year, congress had begun to consider proposed constitutional amendments to abolish slavery throughout the country.35 a. enacting the thirteenth amendment in january 1864, the senate took up consideration of an abolition amendment, under the leadership of senator lyman trumbull, who sponsored proposals as chair of the senate judiciary committee.36 on april 8, 1864, the senate passed this committee’s proposed language for the thirteenth amendment, on a vote mostly along party lines but with two democrats, reverdy johnson of maryland and james nesmith of oregon, on board as well.37 the house had a harder time obtaining the two-thirds supermajority needed to pass the proposed thirteenth amendment, and failed to do so in a june vote that fell largely along party lines.38 by that point, the 1864 national election campaign was in full swing. in november, abraham lincoln won reelection by wide popular and electoral college margins, in the twenty-five states in the union at that time, based in part on his administration’s recent successes in the civil war, especially victories in atlanta in september 1864.39 lincoln’s opponent, democrat george mcclellan, a former union general, lost on a platform that proved “too extreme in his southern sympathies.”40 with a clear message from the national electorate (consisting only of union voters), lincoln and more reluctant federal legislators took notice; an end to the war could not be won by compromising with the southern states.41 here was a lesson: electoral victories greatly matter to what is possible by way of aspirations for reform. in the elections of 1864, the republicans picked up five additional house seats. the losing democrats faced less public pressure during the waning days of the lame duck session that followed the elections.42 these conditions made passage of the thirteenth amendment more possible. in its vote reported on february 1, 1865, the house passed the senate’s proposed language that would become the thirteenth amendment.43 that 34 david herbert donald, charles sumner and the rights of man 192 (1970) [hereinafter (quoting letter from charles sumner to francis lieber (may 15, 1864)). 35 kurt lash, introduction to part 2a, in 1 the reconstruction amendments: the essential documents 373, 374 (kurt lash ed., 2021) [hereinafter 1 essential docs.] (describing these various proposals). 36 see mark m. krug, lyman trumbull: conservative radical 217 (1965). 37 see alexander tsesis, the thirteenth amendment and american freedom: a legal history 38–39 (2004); debate and passage of abolition amendment, us senate (apr. 8, 1864), reprinted in 1 essential docs., supra note 35, at 434, 442. 38 debates and failed vote on abolition amendment, u.s. house of representatives (june 14–15, 1864), reprinted in 1 essential docs., supra note 35, at 447, 463. 39 noah feldman, the broken constitution 309 (2021). 40 id. 41 id. at 317 (describing lincoln’s realization after his second election that a “new constitution would not be a compromise with injustice, but the embodiment of a higher, moral law”). 42 lash, introduction to part 2a, supra note 35, at 376–77. 43 see debates and passage of abolition amendment, u.s. house of representatives (jan. 28–31, 1865), reprinted in 1 essential docs., supra note 35, at 744 colum. j. race & l. [vol. 13:734 decisive action prompted spontaneous celebrations in the streets and president lincoln’s immediate signature to send the proposed amendment to the states with hopes for quick ratification.44 reconstruction’s advocates thus learned another lesson that applied when operating from a position of political strength: decisive action springing from a strong voter base could produce success.45 (later, they would learn that the converse of this proposition was also true, i.e., waning national voter support spelled serious trouble, as discussed in part iii.a infra). b. land and social welfare the thirty-eighth congress did not stop with the thirteenth amendment’s passage. in march 1865, as one of its last actions, it passed congress’s first freedmen’s bureau act, which lincoln quickly signed.46 that law established the bureau for the relief of freedmen and refugees, to be organized under the war department, for a period to continue through “the present war of rebellion, and for one year thereafter.” 47 this sub-agency would manage matters related to abandoned lands, freed persons, and refugees.48 the act authorized the secretary of war to direct provisions, including clothing, fuel, and temporary shelter to freed persons and refugees; to appoint assistant commissioners for each state in insurrection, who should make reports to congress; and to set apart tracts of up to forty acres of abandoned land within the insurrectionary states for the use of “loyal refuges and freedmen,” which these persons “shall be protected in the use and enjoyment” of for three years.49 although this plan would prove quixotic, the legislators who supported the freedmen’s bureau bill clearly understood that the resource of land was the holy grail—as, indeed, it had been for the nation’s founders who drafted the original constitution, setting out to build a political order with strong protections for property.50 the provision of land 485, 495; notice of house vote and presidential signature, u.s. senate (feb. 1, 1865), reprinted in 1 essential docs., supra note 35, at 496, 496. 44 exciting scene in the house of representatives, frank leslie’s illustrated newspaper 345 (jan. 31, 1865), reprinted in 1 essential docs., supra note 35, at 496, 496. 45 the thirteenth amendment’s outlawing of all slavery and involuntary servitude was a far more radical step than the gradualist proposals that preceded it, including plans to reimburse slave owners for their economic loss, which lincoln had supported. see claudia dale goldin, the economics of emancipation, 33 j. econ. hist. 66, 74 (1973) (calculating that immediate and uncompensated emancipation—the result of the thirteenth amendment—led to an economic loss to slave owners of $2.7 billion, as compared to a gross national product of only $4.2 billion at the time). 46 first freedmen’s bureau act, ch. 90, 13 stat. 507 (1865) (repealed 1868). 47 id. 48 “refugees” referred to whites displaced by the war, whom congress included so as to avoid the impression that it intended to confer preferential treatment to black persons. see foner, reconstruction, supra note 32, at 69. 49 first freedmen’s bureau act, 13 stat. at 507–09. the law further provided for an annual rent not to exceed six percent of the value of the land, after which the occupants would be entitled to purchase the land and receive “such title as the united states can convey.” id. at 508. 50 see jennifer nedelsky, private property and the limits of american constitutionalism 206–10 (1990) (describing the constitutional impact of the federalist concern with protecting private property). 2023] reconstruction’s lessons 745 to freed people was a key aspect of the radical51 republicans’ vision for reconstruction. they believed this step would establish a material basis for granting citizenship and equal rights to freed persons. but the proposal quickly ran into snags, including conservatives’ opposition, which defeated it.52 the lands that might have been transferred to freed persons shrunk as lincoln’s successor, president andrew johnson, issued executive orders pardoning most confederates and returning confiscated land to them.53 other potential avenues for granting freed persons land still existed, such as granting them deeds to government-owned land. that option went nowhere, however, because congress failed to appropriate funds for both the freedmen’s bureau and for grants of high-quality federal lands to freed persons.54 congress’s inaction showed the difficulty of appropriating money to back commitments that were much easier to hold in principle than to achieve in actuality. lack of funding was responsible for an important lost opportunity: material resources were critical but were not forthcoming. in the end, the inability to secure material resources to the freed people in the form of land was one of reconstruction’s most significant failures.55 many of the approximately four million persons emancipated by 51 as used throughout this article, the term radical republican does not refer to congressmen who were necessarily politically radical in a general sense; the term as historians of this period use it refers to “a member of the republican party committed to emancipation of the slaves and later to the equal treatment and enfranchisement of the freed blacks.” radical republican, encyclopedia britannica, https://www.britannica.com/ topic/radical-republican [https://perma.cc/gfk8-8qdc] (last visited feb. 15, 2023). in determining whether to classify the republican members of congress as radicals, moderates, or conservatives under this meaning, i rely on the comprehensive study of voting behaviors in david herbert donald, the politics of reconstruction 1863-1867, at 12, 29, 63, 100–05 (1965). 52 see donald, supra note 34, at 298–99 (describing sumner’s numerous proposals to grant land to the freed persons and the opposition of more conservative republicans to such proposals). 53 see, e.g., andrew johnson, granting full pardon and amnesty to all persons engaged in the late rebellion (dec. 25, 1868) (pardoning “unconditionally, and without reservation,” all people involved in the rebellion, and restoring all “rights, privileges, and immunities”); timeline of land redistribution at the end of the civil war, am. soc. hist. project, https://shec.ashp.cuny.edu/items/show/2032 [https://perma.cc/pcg5-8j23] (last visited feb. 28, 2023) (noting that president johnson’s amnesty plan allowed southerners to reclaim “abandoned lands occupied by freedmen”); see also eric l. mckitrick, andrew johnson and reconstruction 141–42 (1975) (referring to president johnson’s “pardoning policy”). 54 as one of stevens’ biographers, fawn brodie, points out, stevens would have been more effective in his goal of providing real property resources to freed persons if he had focused on obtaining congressional appropriations for land grants rather than pursuing what she proposes was his deep-seated calvinist lust for punishing the wicked by continuing to push for confiscation of white southerners’ property. fawn brodie, thaddeus stevens: scourge of the south 305 (1966). psychobiography has, of course, been much criticized. see, e.g., david james fisher, cultural theory and psychoanalytic tradition 199– 200 (1991) (discussing the limits of, but not completely denouncing, historians’ use of psychoanalytic theory). here, brodie’s observations about the lack of congressional funding to support creating the material pre-conditions from which freedpeople could experience civil equality contributes an important insight into how reconstruction might have been more successful. 55 see, e.g., william s. mcfeely, yankee stepfather: general o.o. howard and the freedmen 297 (1968) (noting that the “original goal of the bureau” to respond to the freed persons’ “passion for the land” was “unsatisfactorily achieved”). most of the public land offered to freed persons was of poor quality and unsuitable for farming, and only a fraction of freed persons received any kind of land grants. see w. e. b. du bois, 746 colum. j. race & l. [vol. 13:734 the thirteenth amendment ended up in highly exploitative laboring relationships with white landowners—a status many scholars have argued was not many steps removed from slavery.56 in this respect alone, reconstruction was destined to fail. the nation’s founders had based the original constitution’s design on an assumption that the united states would be a society full of land-owning citizens.57 emancipation created a new class of citizens who were free on paper but lacked material resources. due to the black codes, they further lacked the ability to engage in free labor in order to secure their material needs. but such basic security was essential if freed persons were to take part in society on terms of civic equality. this catch-22 drove reconstruction’s partial failure. it started with the freedmen’s bureau’s inability to carry out its most important assigned mission of getting substantial resources into the hands of emancipated persons so they would have a stable economic basis from which to build new lives as citizens. the bureau did only somewhat better at securing free labor rights to newly emancipated persons. one of the chief tasks of the bureau’s overworked agents was to supervise the fairness of the labor contracts under which freed persons were to sell their labor to landowners. but, as numerous historians have documented, the bureau’s record on this task was mixed at best.58 at times, agents invalidated contracts that specified unduly low wages for workers, but in many other situations they reduced freed persons’ bargaining ability by instituting, for example, requirements that they must enter year-long contracts.59 such requirements meant that freed persons could not exercise their bargaining power by threatening to withhold labor at key periods such as the harvesting season.60 in the north, industrial laborers used the threat of a strike to exert economic pressure and thus gain bargaining power in relations with employers. by denying freed persons the ability to bargain from a position of any power, the bureau negated the very free labor ideology that was so important to many northern abolitionists. early congressional efforts to use law to bring about reconstruction 601–04 (1931). but see franklin, supra note 32, at 37 (noting that the bureau did have some positive effect—for example, it provided twenty million rations to white refuges and black freed persons, established many hospitals, provided health care, and assisted in the settlement of some thirty thousand displaced by the war). 56 see paul s. pierce, the freedmen’s bureau 68, 131 (1904); see generally douglas a. blackmon, slavery by another name (2008) (describing similarities between slave institutions and post-emancipation racial violence). 57 see nedelsky, supra note 50, at 204–05 (noting the importance that various founders placed on protection of rights to property). 58 for broad assessments of the freedmen’s bureau in various states, see generally randy finley, from slavery to uncertain freedom: the freedmen’s bureau in arkansas, 1865-1869 (1996) (describing the bureau’s activities in arkansas); paul a. cimbala, under the guardianship of the nation: the freedmen’s bureau and the reconstruction of georgia, 1865-1870 (1997) (describing the bureau’s activities in georgia); martin abbott, the freedmen’s bureau in south carolina: 1865-1872 (1967) (describing the bureau’s activities in south carolina); joe m. richardson, the freedmen’s bureau and negro labor in florida, 39 florida hist. q. 167 (1960) (describing the bureau’s activities in florida). 59 see blackmon, supra note 56, at 144. 60 id.; see also abbott, supra note 58, at 71–72 (describing the labor contracting system); richardson, supra note 58, at 169–74 (discussing the many inadequacies in the freedmen’s bureau agents’ handling of labor contracts). 2023] reconstruction’s lessons 747 change failed in this situation due to a lack of coordination between law’s purpose and its implementation on the ground. reconstruction legislation also charged the war department and its sub-agency, the freedmen’s bureau, with a host of other tasks, including prosecuting civil rights violations. unlawful acts targeting black citizens and their allies included assault, murder, and other acts of brutal violence that inflicted terror with impunity on those attempting to exert their civil rights. the bureau compiled reports about such illegal acts, which, while spotty, serve as the basis for much of what historians know about the vast extent of violence and terror during reconstruction in secessionist and border states.61 perhaps most promisingly, the freedmen’s bureau provided emergency basics such as food, fuel, and medical care, and established hospitals and schools for freed persons.62 through these schools, many members of the first generation of freed persons learned basic literacy.63 these schools produced many of the members of the next generation’s black leadership class, including such important figures as ida b. wells, t. thomas fortune, and many more.64 indeed, the freedmen’s bureau represented the first united states experiment in federal government-provided social welfare resources to foster human flourishing.65 its goal was to create the conditions for successful citizenship for a previously disenfranchised group that otherwise would have no shot at participating successfully in a marketbased economic system. the newness of this idea did not escape president johnson’s attention when he argued, in his speech accompanying his february 1866 veto of the second freedmen’s bureau act (which congress then voted to override66): “a system for the support of indigent persons in the united states was never contemplated by the authors of the constitution; nor can any good reason be advanced why, as a permanent establishment, it should be founded for one class or color of our people more 61 for a compilation of statistics drawn from local agents’ reports, see reconstruction in america: racial violence after the civil war, equal just. initiative, https://eji.org/reports/reconstruction-in-america-overview/ [https://perma.cc/3mqs-p9kv] (last visited july 15, 2022). 62 du bois, supra note 55, at 225–26. 63 see id. at 666 (describing how freedmen’s bureau schools led to the first institutions of higher education for black students. 64 for more about this leadership class, often educated in freedmen’s bureau primary schools and then at howard university, see, e.g., susan d. carle, defining the struggle: national organizing for racial justice, 1880-1915, at 15–16, 32–33, 38, 159 (2013) [hereinafter carle, defining the struggle]. 65 see, e.g., abbott, supra note 58, at 133 (portraying the bureau “as an attempt, however limited, at social engineering and an expression, however tentative, at social planning by government,” that was “contrary to both history and tradition”). for an interesting argument that the thirteenth amendment and freedmen’s bureau acts reflect a constitutional commitment to the national government playing a role in protecting minimum economic security and education, see mark graber, the second freedmen’s bureau bill’s constitution, 94 tex. l. rev. 1361, 1363–64 (2016). 66 franklin, supra note 32, at 60 (discussing passage and veto override on the second freedmen’s bill); krug, supra note 36, at 237–39 (discussing passage of the second freedmen’s bill). 748 colum. j. race & l. [vol. 13:734 than another.”67 johnson was correct that the nation’s founders had not contemplated such a social welfare system, but incorrect that such a system would necessarily protect only “one class” of citizens, given that the original freedmen’s bureau act provided resources for white refugees of the war as well as freed people.68 in his opposition, johnson inadvertently put his finger on what the freedmen’s bureau represented: a new united states government experiment in providing certain basic resources needed for human flourishing in order to achieve civil and political equality. this is yet another of reconstruction’s lessons, as i explore in part v.b.3 below. the reconstruction congresses did not come to recognize the need to provide sustenance, education, health care, and protection of bodily security to those lacking in these resources through armchair theorizing. the reconstruction advocates came to this awareness because they faced a dire humanitarian crisis—the challenge of incorporating four million persons who started with no resources into a governmental system that assumed all worthy citizens had acquired at least a baseline of such resources through reasonably endowed families, communities, and opportunities for property ownership. reality drove theory rather than the other way around. interesting possibilities, such as public land transfer, might have provided an alternative, more successful history than what actually happened after reconstruction. those possibilities did not materialize, however. one more act, passed on july 16, 1866, extended the freedmen’s bureau’s life to 1868 and allowed it to continue to provide education until 1870, after which the freedmen’s bureau ended.69 congress had by that time fixed on a different plan based on a recognition of the waning energy for radical reconstruction, as further explored in part iii. c. law’s inefficacy when not supported by the national political will two additional lessons the reconstruction advocates learned involved the relationship between racial justice reform and support from the coordinate branches of government and the nation’s electorate. these lessons hold equally true today: due to the complexity of the constitution’s structural design, major progress on racial justice through law requires coordinated commitments among the federal branches, and such commitments typically only come after rare moments in which the nation’s electorate communicates such support for racial justice goals through overwhelmingly clear voting behavior. the thirty-ninth reconstruction congress learned these lessons in tangling with a hostile executive in the period between 1865 and 1867. 67 krug, supra note 36, at 134 (citations omitted). on the persistent rhetoric of opponents of racial justice about so-called “special” treatment, see darren lenard hutchinson, racial exhaustion, 86 wash. u. l. rev. 917, 926–27 (2009). 68 see first freedmen’s bureau act, ch. 90, 13 stat. 507 (1865) (repealed 1868) (referring to beneficiaries of the act as “refugees and freedmen”). 69 see act of july 16, 1866, pub. l. no. 39-200, 14 stat. 173 (repealed 1868) (extending the bureau’s existence); act of mar. 11, 1868, pub. l. no. 40-25, 15 stat. 41 (discontinuing the bureau for most purposes). on the bureau’s waning activity, see mcfeely, supra note 55, at 300–04; see also id. at 307 (questioning the efficacy of the bureau’s director); id. at 313 (noting the weakening of the bureau in 1868 to “the point of impotence”); id. at 327 (describing phases of the bureau’s termination). 2023] reconstruction’s lessons 749 after general robert e. lee’s formal surrender of his army of northern virginia to union general ulysses s. grant on april 9, 1865, it was clear that the war was in its final stages. but lincoln’s assassination only six days later squelched any mood of elation at the union’s victory. lincoln’s death meant not only the nation’s loss of a brilliant leader and rhetorician, it also meant that vice president andrew johnson became president. a democrat, johnson had established his political bona fides in attacking the large plantation “slave power” in the south and remaining a unionist despite the secession of his home state of tennessee while he was serving as a united states senator.70 lincoln appointed johnson military governor of tennessee, and the republican party nominated him to serve on the party ticket in 1864 as a way of signaling to southerners that unionist sentiments would be rewarded.71 what lincoln and others failed to realize was the extent to which johnson would oppose civil rights initiatives beyond emancipation and use his power to resist congressional reconstruction and favor southern states.72 as one of his first actions, johnson issued an amnesty proclamation that covered many of those who had taken part in the war of rebellion, thus restoring all of their property rights except in persons who had been enslaved.73 the effect was to put back in power the same men who had led their communities prior to the war, and thus to wipe out the fragile efforts of unionists to build new state and local governments committed to the values of the unionist forces.74 this is one example of the reconstruction advocates’ experience of the power of the executive to negate their work. to be effective, they would have to be equally forceful in using the powers granted them under the constitution to push back against the executive. at the same time, the thirty-ninth congress wisely stuck to the constitution’s terms where failing to do so may have backfired. as ratification of the thirteenth amendment gradually gained ground over the summer and fall of 1865, for example, it was unclear whether the eleven secessionist states that still had no voting rights in congress should be counted in determining whether three quarters of the states had voted for ratification as required under the constitution.75 the safer legal course was to count all thirty-six states in existence at the time, including the secessionist states of the confederacy.76 counted this way, the last state needed to achieve ratification, georgia, voted in favor on december 6, 1865, 70 mckitrick, supra note 53, at 90. 71 id. at 90. 72 id. at 134–42 (describing johnson’s policies). 73 du bois, supra note 55, at 254. 74 id. at 256–57 (noting unionists’ concerns that johnson “was moving too fast” by allowing southern states to return to the union “without guarantees”). 75 u.s. const. art. v (providing for ratification of constitutional amendments by all of the “several states”). 76 see john harrison, the lawfulness of the reconstruction amendments, 68 u. chi. l. rev. 375, 414 (2001) (noting that congress thought it wise to require ratification of the reconstruction amendments by three quarters of all states—rather than three quarters of union states only—to avoid doubts about the amendment’s constitutionality). 750 colum. j. race & l. [vol. 13:734 and secretary of state william seward declared the thirteenth amendment to be law.77 abolishing slavery through a federal constitutional amendment did not end slavery-like practices, however. even before the thirteenth amendment went into effect, resisting states had begun to enact the notorious black codes. these laws imposed oppressive new forms of subordination on black persons, prohibiting freedom—in movement, residency, employment, and association—and regulating employment in ways that belied the ideology of free labor rights as discussed above. it pays off to examine some of the specifics of these state laws in order to see how the law operated to perpetuate extreme insubordination, and thus to better understand what congress was trying to undo by exercising its new powers under the reconstruction amendments. mississippi’s black codes,78 enacted in the last part of 1865, contained numerous draconian restrictions. its “vagrancy” provisions authorized fining or imprisoning black persons, whether newly freed or formerly free,79 if they lacked written proof of employment, assembled together or assembled together with white persons, or interacted with white persons “on terms of equality.”80 white persons were prohibited from living in “adultery or fornication” with persons of another race.81 if black persons did not pay fines issued against them, it was “the duty of the sheriff . . . to hire out said freedman, free negro or mulatto, to any person who will, for the shortest period of service, pay said fine.”82 still other provisions restricted where black persons could rent or lease land, provided for the arrest of black persons who quit employment prior to their term of service, and authorized bounty awards and mileage reimbursement for those “carrying back every deserting employee.”83 the codes also prohibited all black persons from carrying firearms of any type, or ammunition, daggers, or bowie knives.84 in short, these codes sought to deprive black persons of basic civil rights in every dimension of life. congress’s extremely difficult task was to enact law that could prevent all of this— especially as states sought to accomplish such goals in the future through discriminatory practices that could be expected to evolve over time. south carolina’s black code, passed the same month as the thirteenth amendment’s ratification, shows another approach. that law 77 eric foner, the second founding: how the civil war and reconstruction remade the constitution 39 (2019) [hereinafter foner, second founding]; encyclopedia of the reconstruction era 833 app. 3 (richard zuczek ed., 2006) [hereinafter reconstruction encyclopedia]. 78 see laws of the state of mississippi, passed at a regular session of the mississippi legislature, held in the city of jackson, october, november, and december 1865, at 82–93, 165–167 (1866) [hereinafter laws of the state of mississippi]. 79 the exact language defined the persons covered as “all freedmen, free negroes, and mulattoes.” mississippi black code, 1865, the am. yawp reader, https://www.americanyawp.com/reader/reconstruction/mississippi-black-code-1865/ [https://perma.cc/7s4z-sw3v] (last visited feb. 20, 2023). 80 laws of the state of mississippi, at 91. 81 id. 82 id. at 92. 83 id. at 82, 84. 84 id. at 165. 2023] reconstruction’s lessons 751 provided that all servants must work from sunrise to sunset, enter longterm employment contracts, and that “no person of color shall pursue or practice the art, trade or business of an artisan, mechanic or shop-keeper, or any other trade, employment or business” unless he had obtained a special license, which would be effective for one year only, after paying a fee of between $10 and $100 annually, depending on the type of trade. such freed persons must also show that they had served an apprenticeship if practicing any mechanical art or trade. south carolina’s statute had vagrancy provisions much like mississippi’s, as well as provisions subjecting black persons to punishment for moving locations without a license or hunting or fishing on land they did not own. other states that passed laws along these lines in the period between 1861 and 1877 included virginia, louisiana, and georgia.85 in short, these black codes gave the lie to any claim that emancipation had led to the realization of “free labor” since they routinely denied black workers the ability to control their labor and punished attempts to better their economic position through work.86 such statutes specifically restricting black persons’ rights to control their labor and advance into skilled employment would continue, usually in a less extreme form but nationwide, well into the twentieth century.87 the rise of black codes did not escape the attention of congress. indeed, one of the first acts of the thirty-ninth congress was an effort in the senate to declare null and void all such laws “wherein any inequality of civil rights and immunities among the inhabitants of said states is recognized,” based on “any distinctions or difference of color, race, or descent, or by reason or in consequence of any previous condition or status of slavery or involuntary servitude.”88 this bill, proposed by republican senator henry wilson of massachusetts, did not become law, but laid the groundwork for laws that congress later enacted.89 like sumner and other radicals, wilson (who would later serve as president ulysses s. grant’s vice president) believed that congress must not only abolish slavery but 85 see generally eric foner, short history of reconstruction (updated) 94– 95 (2015); du bois, supra note 55, at 168–69 (quoting louisiana’s labor laws), 173–74 (quoting vagrancy laws in virginia and georgia); edward mcpherson, the political history of the united states during reconstruction 29–44 (1871) (collecting various states’ black codes). 86 see, e.g., william cohen, negro involuntary servitude in the south, 1865-1940: a preliminary analysis, 42 j. s. hist. 31, 35–37 (documenting the many ways laws deprived freed persons of their free labor rights, including laws that made it a crime to hire away a laborer under contract to another). 87 it bears remembering that, before, during, and long after the civil war, states in the north had less harsh but nevertheless oppressive laws that treated persons of color as subordinate to whites in employment. see, e.g., david e. bernstein, only one place of redress 8–45 (2000) (documenting the employment laws that imposed restrictions and unequal terms on black persons throughout the country). 88 freedmen’s bureau bill, back codes, u.s. senate (dec. 13, 1865), reprinted in 2 the reconstruction amendments: the essential documents 24, 24 (kurt lash ed., 2021) [hereinafter 2 essential docs.]. 89 kurt lash, introduction to part 1a, in 2 essential docs., supra note 88, at 5, 5 (noting that some republicans believed that this bill could not pass without an additional constitutional amendment giving congress the power to nullify discriminatory state legislation). 752 colum. j. race & l. [vol. 13:734 also confer equal civil rights on the freed people.90 the manner in which southern states had acted so quickly to re-impose subordination showed moderate and radical republicans alike that further federal government action would be needed to protect freed persons as well as the members of free black communities who suddenly found themselves denied the rights and status they had formerly enjoyed. by the time the thirteenth amendment took effect, congress had already begun working on the fourteenth amendment to address deprivations of civil rights. congress debated the civil rights act of 1866 and the fourteenth amendment intermittently, resulting in much “cross talk” in which ideas and proposals bled from one project to the other.91 by march 1866, both houses of congress had passed civil rights legislation, which president johnson vetoed.92 by april 7, both houses had voted to override johnson’s veto, and on april 9, the civil rights act of 1866 became law.93 on a tandem track, congress worked to iron out the language for the fourteenth amendment. thaddeus stevens, a radical republican congressman from pennsylvania, served as chair of several powerful congressional committees and used his power to promote many reconstruction-era initiatives. chair of the joint committee on reconstruction, stevens had wanted a much broader proposal that would have prohibited discrimination in both civil and political rights, thus establishing the right of black men to vote.94 known as an excellent strategist who could be pragmatic when necessary, stevens agreed to compromise and introduced the joint committee’s proposed amendment in the house in may 1866.95 that body passed the measure, which included the basics of the provisions that would appear in the final amendment, including national birthright citizenship, the privileges or immunities clause, and the due process and equal protection clauses.96 on june 8, the senate passed its version, and by june 13 the house approved the senate’s slightly revised version, with all votes meeting the required twothirds supermajority, made easier because the representatives of the eleven confederate states remained excluded from both legislative chambers. 90 henry wilson, politician, and abolitionist born, afr. am. registry, https://aaregistry.org/story/henry-wilson-a-political-abolitionist-behind-the-scenes/ [https://perma.cc/gd53-kqd2] (last visited feb. 20, 2023). 91 lash, introduction to part 1a, supra note 89, at 6. 92 see debate, civil rights bill, vote and passage, us house (mar. 13, 1866), reprinted in 2 essential docs., supra note 88, at 142, 142–44; president andrew johnson’s message accompanying veto of the civil rights bill, us senate (mar. 27, 1869), reprinted in 2 essential docs., supra note 88, at 144, 144–46. 93 civil rights act of 1866, pub. l. no. 39-31, 14 stat. 27. the vote in the senate squeaked by with the exact two-thirds margin needed. donald, supra note 34, at 260. 94 on stevens’ earlier proposal and his agreement to pull it back, see gillette, supra note 30, at 25–26. 95 see proposed fourteenth amendment, speech of thaddeus stevens introducing the amendment, debate, us house (may 8, 1866), reprinted in 2 essential docs., supra note 88, at 158, 158–60. 96 proposed fourteenth amendment, debate and passage, us house (may 10, 1866), reprinted in 2 essential docs., supra note 88, at 170, 178 (quoting the language of the eventual fourteenth amendment). 2023] reconstruction’s lessons 753 the proposed amendment did not meet all of the goals of the socalled “radical”97 republicans because it did not explicitly address political rights. stevens urged his colleagues to vote to approve the version anyway as it was the best they were likely to get. as stevens famously explained, . . . i had fondly dreamed that when any fortunate chance could have broken up for a while the foundation of our institutions, and released us from obligations the most tyrannical that ever man imposed in the name of freedom, that the intelligent, pure and just men of this republic, true to their professions and their consciences, would have so remodeled all our institutions as to have freed them from every vestige of human oppression, of inequality of rights, of the recognized degradation of the poor, and the superior caste of the rich. . . . this bright dream has vanished . . . i find that we shall be obliged to be content with patching up the worst portions of the ancient edifice . . . i accept so imperfect a proposition . . . because i live among men and not among angels. . . 98 to stevens, reconstruction presented the opportunity to address the root causes of inequality, based not only on race and former enslavement but also on poverty and “every vestige of human oppression.”99 political reality had killed that dream, but broader visions of using law to defeat “caste” in its many forms would germinate in human rights movements far in the future. as stevens showed, it was sometimes necessary to sacrifice principle for pragmatism, but ideas germinated in one period might take root and grow in different conditions. this is a lesson it behooves contemporary activists to learn too, as discussed further in part v.b below. the debate about the proposed fourteenth amendment switched to the state legislatures considering ratification just as the 1866 national elections were heating up. johnson and the congressional republicans entered into open warfare. in speeches supporting democrats, johnson attacked the amendment, calling into question its legality given that eleven states remained excluded from representation in congress.100 when the republicans won in a landslide, their political power became even stronger. the newly elected congress would have more than a two-thirds republican majority in both houses, paving the way for still more reconstruction legislation.101 thus, another lesson arrived for the 97 the terms radical and moderate as used in describing reconstruction-era legislators do not refer to general political orientation but to views on how quickly and aggressively to move on “reconstructing” the south to bring about civil rights equality. for further explanation, see supra note 51. 98 proposed fourteenth amendment, speech of thaddeus stevens, vote and passage of amended senate version, us house (june 13, 1866), reprinted in 2 essential docs, supra note 88, at 218, 218 (emphasis added). 99 id. 100 see, e.g., proposed fourteenth amendment, president andrew johnson’s message of transmission, us senate (june 22, 1866), reprinted in 2 essential docs., supra note 88, at 223–24. 101 du bois, supra note 55, at 325 (noting republican majorities of 42 versus 11 in the senate and 143 versus 49 in the house). 754 colum. j. race & l. [vol. 13:734 reconstruction advocates that remains of great importance today: the constitution’s complex design makes big change hard without massive support from the american electorate. ratification of the fourteenth amendment proved slow. unlike the thirteenth amendment, which won ratification ten months after congress sent it to the states, ratifying the fourteenth amendment took more than two years.102 three states quickly ratified the fourteenth amendment: connecticut and new hampshire in the north, and the former confederate state of tennessee, which in doing so gained readmission to the union. besides tennessee, however, every secessionist state initially rejected it, as did the border states of delaware and maryland. most northern states were in no rush either.103 by the end of 1867, only twenty-two states of the necessary twenty-eight had ratified, thus again raising the question of whether the secessionist states should be excluded from the final count. again, congress decided not to risk this step, which would have thrown the amendment into permanent legal doubt, but instead sought to increase pressure on the resisting states through the exercise of its legislative powers. to do so, congress passed several reconstruction acts, aiming to bring to bear the full force of its constitutional and situational power104 on the secessionist states. the first reconstruction act put the ten remaining secessionist states under united states military authority until “loyal and republican state governments [could] be legally established.”105 this military authority was to “protect all persons in their rights of person and property,” “suppress insurrection, disorder, and violence,” and punish “all disturbers of the public peace and criminals.”106 the president was to dispatch a chief military officer to each of these states (which johnson in fact did), who would, in turn, set up military or civil tribunals to try offenders who violated the protections provided for in the act. the states could remove themselves from such onerous military rule only by forming “a constitution of government in conformity with the constitution of the united states in all respects,” which must include granting the elective franchise to all adult males.107 thus, in this first reconstruction act of march 2, 1867, congress imposed the suffrage requirement it had not imposed through the fourteenth amendment. in addition, congress used the act to exert the best leverage it had over the secessionist states: to gain readmission into the union and again become entitled to representation in congress, a state must first ratify the fourteenth amendment and create a new government under which black men would have the right to vote.108 102 for exact dates, see reconstruction encyclopedia, supra note 77, at 833 app. 3. 103 id.; franklin, supra note 32, at 67 (noting that “most of the other northern states either dragged their feet or gave no immediate consideration to the [fourteenth] amendment”). 104 see harrison, supra note 76, at 375 (analyzing the lawfulness of congress’s use of the requirements imposed through the reconstruction acts to pressure southern states into ratifying the fourteenth amendment). 105 first reconstruction act, ch. 153, 14 stat. 428 (1867). 106 id. 107 id. at 429. 108 id. at 428–29. 2023] reconstruction’s lessons 755 a second act, known as the second supplementary reconstruction act, passed over johnson’s veto on march 23, 1867. it provided more details on how the process of setting up the new state governments would work, including who would be responsible for overseeing voter registration and conducting the elections and how federal presence in the secessionist states would end.109 it provided the specific process states could use once they had met all of the requirements of the reconstruction acts to petition congress for readmission to the union, and stated that once congress had approved the application and readmitted the states’ congressional representatives, the federal military presence in the state would end.110 then, over yet another presidential veto, congress passed a third reconstruction act on july 19, 1867.111 this act provided further prescriptions as to how federal supervision of resisting states’ government-building process should occur, and sought to diminish president johnson’s powers to remove federal officials involved in reconstruction.112 johnson in turn retaliated by firing secretary of war edwin stanton, who had been secretly involved in drafting the acts.113 stanton’s firing became the basis for congress’s impeachment of johnson in the house and not-quite-successful trial of johnson in the senate, which took up much time and attention.114 a fourth act added still more to congress’s reconstruction scheme by requiring that the votes of all men casting ballots, rather than only previously registered voters, be counted in the process of ratifying new state constitutions.115 the provisions of these reconstruction-era statutes have taken on new significance in light of the roberts’ court’s focus on original public meaning in interpreting the fourteenth amendment.116 for example, the reconstruction-era legislation passed contemporaneously with the debate over and ratification of the fourteenth and fifteenth amendments show that congress did not understand those amendments to impose a “race blind” mandate. congress’s legislation was far from race blind; it was all about focusing on race and preventing harmful consequences to persons that had been subordinated on account of race. the problem was not that congress did not understand the reality of how race was operating in american society and the need to focus specifically on fixing that, but instead that congress’s legislative fixes from washington, d.c. could not reach far enough. not surprisingly, congress’s mandates directed exclusively to the former secessionist states117 met with strong resistance in those covered 109 act of mar. 23, 1867, pub. l. no. 40-6, 15 stat. 2. 110 id. 111 act of july 19, 1867, pub. l. no. 40-30, 15 stat. 14. 112 id. 113 see mckitrick, supra note 53, at 495. 114 for more on the radicals’ impeachment and near conviction of president johnson, see johnson’s impeachment and trial, in reconstruction encyclopedia, supra note 77, at 344, 344–45; mckitrick, supra note 53, at 486–509 (describing johnson’s impeachment). 115 act of mar. 11, 1868, pub. l. no. 40-25, 15 stat. 41. 116 see, e.g., n.y. state rifle & pistol ass’n v. bruen, 142 s. ct. 2111, 2122, 2127– 28 (2022) (analyzing the second and fourteenth amendments by looking to original meaning). 117 note here that congress was showing its understanding that it could choose some but not all states for remedial measures, a fact that belies justice roberts’ ground for 756 colum. j. race & l. [vol. 13:734 states, including further violence and other extralegal as well as law-based means of voter suppression. nevertheless, black men did vote in significant numbers, and in doing so changed for a time the secessionist states’ political landscape.118 historians estimate that 400,000 black men cast ballots and approximately two thousand black men held official political office during reconstruction.119 in south carolina, black men composed a majority of south carolina’s legislature.120 for a brief moment, black legislators and black-supported legislators held significant power. during this period, black male voting and escalating violence occurred simultaneously. resisting states engaged in legal and extralegal practices designed to subordinate black persons and suppress voting, such as imprisoning black persons for petty crimes for no reason at all, and then auctioning them as laborers without pay.121 thus, reconstruction’s advocates learned the lesson that motivating compliance with anti-racism mandates would be extremely difficult; shockingly forceful resistance could be predicted to continue long term. following the enactment of the reconstruction acts, three southern states—north carolina, louisiana, and south carolina—voted to ratify the fourteenth amendment after having initially rejected it. the simple reason for this switch was black voter enfranchisement. as historian eric foner points out, “[w]ithout black suffrage in the south, there would be no fourteenth amendment.”122 with south carolina’s ratification in july 1868, the amendment finally became part of the united states constitution. invalidating key voting rights acts provisions on an “equal state sovereignty” rationale. see shelby cnty. v. holder, 570 u.s. 529, 535 (2013), discussed further at infra part v.a and text accompanying note 262. 118 black women, of course, could not vote but were politically engaged in many ways, both during and after the civil war. see thavolia glymph, the women’s fight: the civil war’s battles for home, freedom, and nation, 88, 90–91, 122–23 (2020) (pointing out such forms of engagement); see generally martha jones, vanguard: how black women broke barriers, won the vote, and insisted on equality for all (2020) (tracing black women’s activism from antebellum times through reconstruction and beyond). 119 see, e.g., franklin, supra note 32, at 133–38 (helping begin this historiography of black reconstruction leaders); eric foner, south carolina’s black elected officials during reconstruction, reprinted in at freedom’s door 166, 167 (james l. underwood & w. lewis burke jr. eds., 2000). a fascinating historiography investigating the lives of some of these reconstruction-era black elected officials is douglas r. egerton, the wars of reconstruction 93–96 (2014) (discussing the life and career of tunis campbell, a georgia activist who served as a state senator and in other roles during reconstruction, suffered incarceration, and eventually fled the state); id. at 245–47 (discussing formerly enslaved senator blanche bruce of mississippi and congressman robert smalls of south carolina). 120 foner, reconstruction, supra note 32, at 354; see also id. at 355–56 (noting that every state had black elected and local officials); egerton, supra note 119, at 267 (describing south carolina’s legislature as “dominated by men of color”); id. at 268 (providing more details on black elected officials in south carolina); id. at 269 (discussing the prevailing coalition of black and progressive white legislators in louisiana); id. at 277–80 (discussing various black legislators who sought federal office in the 1870 elections); id. at 279 (discussing senator hiram revels of mississippi). 121 pierce, supra note 56, at 147–49. 122 foner, second founding, supra note 77, at xxvii. thus, foner further notes, it is strange—and, one might add, arguably illegitimate—that in construing the amendment the court has failed to consider black americans’ interpretation of its meaning. id. 2023] reconstruction’s lessons 757 in june 1868, congress enacted legislation to readmit the secessionist states that had ratified the amendment and allow their representatives to retake their seats in congress.123 by playing hardball, congress had achieved its objective of fourteenth amendment ratification. but there was a catch-22 in this strategy: now that the resisting states had obtained readmission to the union and representation in congress, they could use their political power to oppose congressional reconstruction. congress’s best leverage had been its power to deny rebel states readmission into the union unless they voted for the amendment. once they were readmitted, however, congress lost this leverage and developed a voting bloc against reconstruction to boot. that same year, congress also tried to use its best ammunition against an uncooperative executive. on february 24, 1868, the house voted to impeach president johnson after he fired secretary of war edwin stanton for opposing johnson’s lenient policies toward the secessionist states. but despite the senate prosecutors’ best efforts, the senate failed to convict johnson in a vote that fell one vote shy of the two-thirds majority needed. in sum, the institutional participants—congress, the president, and the secessionist states—had played hardball to the extreme. the reconstruction congress had, it seemed, achieved its objective of adding civil rights protections to the constitution, but had failed to take out the obstructionist head of the federal executive branch. these general strategic questions of which political fights to take on remain a perennial conundrum, hard to evaluate except with 20/20 hindsight. but some lessons are more clearly extractable from this history. one is that hardball politics should not be eschewed in the face of hardball tactics coming from the other side. i discuss that lesson further in part v.b.1 below. another lesson is abundantly clear in hindsight—and would appear to have been evident at the time had all eyes not been on the question of whether the fourteenth amendment would pass at all. that lesson was that passage of the amendment could offer little long-term civil rights protection without vigorous enforcement. both before and after the amendment’s ratification, astounding levels of terrorist violence continued in many resisting areas.124 this violence took many forms, from large-scale public massacres of people attempting to exercise their legal rights, to clandestine acts of terror at the homes of freed persons and on roads and 123 see an act to admit the state of arkansas to representation in congress, ch. 69, 15 stat. 72 (1868); see also an act to admit the states of north carolina, south carolina, louisiana, georgia, alabama, and florida, to representation in congress, ch. 70, 15 stat. 73 (1868). 124 it is important not to sensationalize this violence by exploiting “‘the shocking spectacle’ of an abused black body.” hannah rosen, in the moment of violence: writing the history of post-emancipation terror, in beyond freedom: disrupting the history of emancipation 145, 145 (david w. blight & jim downs, eds., 2017) (quoting saidiya hartman, scenes of subjection: terror, slavery, and self-making in nineteenthcentury america 4 (1997)). it is also important to appreciate freed persons’ agency in sometimes exercising rights to self-defense in the face of such violence. cf. joseph blocher & darrell a.h. miller, the positive second amendment 41 (2018) (describing freed persons’ recognition of their rights under the second amendment). on the history of the second amendment in reconstruction, see robert j. cottrol, introduction, in gun control and the constitution xxi–xxiv (robert j. cottrol ed., 1993). these subjects are beyond the scope of this article but deserve mention as important aspects of the historical literature. 758 colum. j. race & l. [vol. 13:734 byways—often through “night riding,” where domestic terrorists hid themselves both to avoid accountability and inflict maximum fear.125 historians have only partial information about the full extent of this violence.126 this massive resistance undoubtedly contributed to the seemingly rapid change of mind that moderate republicans displayed in 1868 about supporting a constitutional amendment to protect the rights of black men to vote. a key aspect of this switch involved the rhetoric of self-help. advocates argued for giving black men a secure right to vote in the constitution on the ground that this would allow black men to protect the rights of their race rather than having to rely on congress to do so. a fifteenth amendment, they argued, would help ensure that civil rights protections could not be taken away in the future by congresses less committed to civil rights. indeed, this prospect had already materialized as the former secessionist states gained readmission to the union and began to reassert power in congress. if congress could not be counted on to vigorously push for racial justice in the long run, then perhaps the freed people could protect themselves through voting. this is another key lesson pertinent today: law in the books, even in an amendment to the constitution, may be insufficient by itself, especially in the face of 125 for general treatments, see generally paul ortiz, emancipation betrayed 9– 32 (2005) (describing reconstruction era violence in florida and black persons’ resistance); george c. rable, but there was no peace: the role of violence in the politics of reconstruction (2d ed. 2007) (summarizing violence in reconstruction and its political effects). 126 although historians have found it difficult to determine with precision the scope of this violence, a brief sketch can help illustrate the enormous gap between what the fourteenth amendment’s drafters regarded themselves as setting out to do and what was happening on the ground. some incidents are well known, such as the may 1866 massacre in memphis, tennessee, which involved a white mob attack on that city’s black community, resulting in the deaths of approximately four dozen persons, as well as the rape of five black women, severe beatings, robberies, and massive destruction of black owned property. james gilbert ryan, the memphis riots of 1866: terror in a black community during reconstruction, 62 j. negro hist. 243, 243 (1977). the major in charge of the freedmen’s bureau in memphis attributed the cause of the violence to labor conflict; historians also point to the inversion of the usual social hierarchy that came from black soldiers wearing uniforms and carrying firearms before the conflagration. see kevin r. hardwick, “your old father abe lincoln is dead and damned”: black soldiers and the memphis race riot of 1866, 27 j. soc. hist. 109, 109–10 (1993). two months later, on july 30, 1866, an even bigger massacre occurred in new orleans, louisiana, an incident that had its roots in unionists’ attempts to develop a new constitution for that state. see generally “an absolute massacre” – the new orleans slaughter of july 30, 1866, nat’l park serv., https://www.nps.gov/articles/000/ neworleansmassacre.htm [https://perma.cc/2fc7-9867] (last updated july 30, 2020); james g. hollandsworth, jr., an absolute massacre: the new orleans race riot of july 30, 1866 (2001) (discussing the massacre, its causes, and its consequences). if racial conflagration constituted one type of violence, another more hidden, individualistic form of terror also appears in freedmen’s bureau reports. see, e.g., letter to the freedmen’s bureau following the murder of a teacher (1867), oxford afr. am. stud. ctr. (may 31, 2013), https://oxfordaasc.com/display/10.1093/acref/9780195301731.001. 0001/acref-9780195301731-e-34109;jsessionid=7acc3a69c1ea20992835612c6c0b9aff [https://perma.cc/khc4-c6r4] (reporting the shooting of a teacher); report on freedmen murdered in houston county, texas (1866), oxford afr. am. stud. ctr. (may 31, 2014), https://oxfordaasc.com/display/10.1093/acref/9780195301731.001.0001/acref-978019530173 1-e-34157 [https://perma.cc/6q8y-ar2l] (reporting on two dozen attacks by whites on freed persons). https://doi.org/10.1093/acref/9780195301731.013.34109.%20(reporting 2023] reconstruction’s lessons 759 substantial resistance on the ground. the people affected need a means of self-help to give such law reality, and the key means of self-help in the political process is the right to vote and run for office. this is a lesson racial justice advocates would do well to take to heart today as the country witnesses the rise of the racist extreme right. politics matters. all of the doctrinal brilliance of our nation’s top scholars means little if the members of the political branches charged with enforcing law lack sympathy with reformers’ goals. in arriving at this insight, the thirty-ninth reconstruction congress began the process of developing a new political psychology connecting human nature to government functioning that was very different from the political psychology reflected in the original constitution. the reconstruction advocates realized what the black abolitionists had been saying all along: no rights are safe without the ability to exercise political power. the nation’s founders had thought that the political elite could be counted on to best protect everyone’s rights and avoid the influence of factions,127 but the reconstruction advocates saw that local leaders would only protect the rights of their own class. they began, in other words, to arrive at new understandings of the relationship between socio-political psychology and the working of law. put less abstractly, the nation’s founders believed in republican government run by a limited electorate of white, landed men. united states history showed the evil consequences of that assumption. under an electorate that did not include everyone whose interests were affected by government, those who lacked voting privileges were at risk of—and suffered—severe abuse by the groups who were granted political power through the vote. that insight revolutionized key foundational assumptions underlying the united states constitutional system. it became increasingly clear that those affected by law should vote on who should represent them in making law. it was in the fifteenth amendment that this transition began to occur in the articulation of rights in the nation’s foundational law. the transition was, of course, only partial in the fifteenth amendment, since it left in place many voting exclusions based on, for starters, sex—thus continuing to disenfranchise fifty percent of the population128—as well as education, religion, and taxes, as discussed in part iii below. iii. reconstruction after 1868: the fifteenth amendment and the force acts of 1870 and 1871 ratification of the fifteenth amendment and passage of additional reconstruction–era legislation brought new lessons relevant today, including the need for both strong federal civil rights oversight and 127 see susan d. carle, why the u.s. founders’ conceptions of human agency matter today: the example of senate malapportionment, 9 tex. a&m l. rev. 533, 550–54 (2022) (discussing the founders’ views about the political elite’s leadership role). 128 the importance of continued political exclusion on the basis of gender is thus an enormously important topic deserving its own extended treatment. here it will have to suffice to point out that gender is a big part of reconstruction’s story, which a focus on law tends to make invisible given gender exclusion from the making of law. the basic point for purposes of this article is that the fifteenth amendment promoted a discourse that would extend far into the future about the limits of law alone in protecting rights. 760 colum. j. race & l. [vol. 13:734 empowering citizens to protect their own rights through voting and otherwise participating in the political process without impediment. six months after the difficult two-year process of ratifying the fourteenth amendment, congress took up drafting the fifteenth amendment. although some radicals in congress had been arguing for black men’s voting rights starting with the thirteenth amendment,129 as already noted, republican moderates had opposed requiring black men’s suffrage in the constitution.130 these legislators were not convinced that the majority of newly emancipated freedmen were “ready” to exercise the franchise.131 they still viewed voting as a privilege to which only welleducated men should be entitled, rather than a right that should be extended to all citizens affected by the laws that elected officials make or enforce. black activists and white radicals were far ahead of congress on these questions. as mary ann shadd cary told congress, “the colored women of this country though heretofore silent in great measure upon this question of the right to vote . . . have neither been indifferent to their own just claims under the amendments, in common with colored men, nor to the demand for political recognition so justly made every where throughout the land.”132 shadd cary’s view encompassing both women and men in the fundamental right to vote was ahead of its time in comparison to the views of the congressional majority. her vision saw the greater potential for near universal voting that would eventually be realized four decades later with enactment of the nineteenth amendment.133 although the majority of members of congress were unable to appreciate that vision, they started 129 see wang, supra note 29, at 2178; krug, supra note 36, at 222–23 (noting that very few senators favored black suffrage in 1863). even stevens, as several historians note, had been somewhat lukewarm on this idea until about 1867. see, e.g., gillette, supra note 30, at 34 (calling stevens “markedly cool on the subject in 1865”); bruce levine, thaddeus stevens: civil war revolutionary, fighter for racial justice 187 (2021) (noting that stevens “had not stood in the vanguard on the question of black voting”); id. at 189 (surmising what reasons accounted for stevens’ equivocation on black voting, including fears that this issue would jeopardize other goals and that “freedmen, as an uneducated, propertyless, and impoverished class, might become political putty in the hands of their wealthy employers,” and noting that stevens had opposed universal male suffrage earlier in his life out of concern for the dangers of “landless class[es]”). sumner, too, initially favored what he called impartial, rather than universal, suffrage, which would have prohibited racial discrimination but allowed for some literacy qualifications; he changed his mind, according to his biographer, after noticing the high intelligence of many freed persons who could not read or write. donald, supra note 34, at 201. as early as 1864, sumner also saw that without black votes reconstruction was doomed. id. at 201 (quoting sumner stating that “[t]heir votes are as necessary as their musquets [sic]. . . . without them, the old enemy will reappear and under forms of law, take possession of the governments.”). 130 see heather cox richardson, the death of reconstruction 42 (2004) (“unlike radicals, moderate and conservative republicans initially joined democrats in disapproving of black suffrage. . . . [t]he argument for african-american suffrage ran counter to the traditional belief that, to understand his interests, a voter must be educated.”). 131 for a compilation of members of congress’s statements along these lines, see gillette, supra note 30, at 31–32. 132 jones, supra note 118, at 117 (quoting shadd’s congressional testimony). many other key black activists saw the same necessary connection between voting rights for black men and all women. see, e.g., id. at 65, 103 (discussing sojourner truth and frederick douglass’s outspokenness about the need to grant both black men and all women the vote). 133 u.s. const. amend. xix. 2023] reconstruction’s lessons 761 in motion, through their adoption of the fifteenth amendment, a process that would eventually lead there. the first step in that process required congress to consider a new amendment. the change of heart among members of congress on the question of constitutionalizing black men’s voting rights took place in a striking short time. by early 1869, less than a year after the fourteenth amendment’s ratification, the opinions of enough members of congress had taken a 180-degree turn to see a draft of the fifteenth amendment emerge from committee. the reason for this sudden shift lay in a lesson members of congress learned in the battle for the fourteenth amendment’s ratification and the widespread defiance of the principles that amendment embodied: words in the constitution alone would be insufficient to bring about civil rights equality. another important point of note here is that the republicans in congress initially believed they had created sufficient incentives for black men’s enfranchisement in adopting section 2 of the fourteenth amendment, 134 which purported to reduce states’ representation in federal elections in proportion to their disenfranchisement of adult male citizens.135 stevens had put this provision into the fourteenth amendment as an alternative to an outright grant of voting rights, believing it would lead states to stop disenfranchising voters on the basis of race.136 but stevens turned out to be dead wrong on this; the fourteenth amendment’s section 2 has never been enforced.137 here again, a lesson for today emerges: without enforcement, even the clearest laws are only as effective as the will that exists to enforce them. the clear words of section 2 of the fourteenth amendment stand as a legal nullity. a. congress’s changed perception a lot had happened in the short intervening period between congress’s consideration of the fourteenth and fifteenth amendments. resisting states had repudiated the fourteenth amendment until the reconstruction acts compelled them to ratify it to gain reentry into the 134 on activists’ later debates about whether to push for section 2 enforcement, see carle, defining the struggle, supra note 64, at 141–44 (discussing the crumpacker resolution, which would have called for reducing states’ electoral strength according to their disenfranchisement of black male voters). in the end, the decision was against such a campaign because success would simply encode race discrimination in the nation’s electoral system rather than eliminate it. id. 135 section 2 provides: “ . . . when the right to vote at any election for the choice of electors for president and vice-president of the united states, representatives in congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the united states, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.” u.s. const. amend. xiv, § 2. 136 see levine, supra note 129, at 178–80 (discussing stevens’ compromise proposal). 137 see eden bernstein, the worrisome ghost of the fourteenth amendment’s second section, u. chi. l. rev. online (april 12, 2020), https://lawreviewblog. uchicago.edu/2020/04/12/worrisome-ghost-eden-bernstein/ [https://perma.cc/z4v9-dub2] (“section two’s mechanism for punishing states has never been invoked.”). 762 colum. j. race & l. [vol. 13:734 union, and an epidemic of violence continued in resisting states.138 these developments vividly demonstrated that resisting states would not cooperate with the goal of achieving civil rights equality for freed persons based merely on new words added to the constitution.139 the realpolitik of the republican party’s likely future on a national scale mattered too. unlike the 1866 national elections, the 1868 elections saw diminishing votes for the party. to be sure, republican presidential nominee ulysses s. grant prevailed convincingly in electoral votes over his democratic opponent, but the popular vote in many states had been close.140 in a number of the secessionist and border states that grant carried, he needed the votes of the freedmen to win.141 grant also benefited from the fact that virginia, texas, and mississippi still had not ratified the fourteenth amendment and thus were not yet “restored” into the union at the time of the election. at the same time, significant numbers of southern white men remained ineligible to vote because of their prior confederate leadership roles. these circumstances would not exist much longer.142 thus, in a classic example of critical race theorist professor derrick bell’s interest-convergence thesis,143 the republicans became acutely aware that their party’s future depended on maintaining high levels of black voter participation in the south.144 the reconstruction acts and the new state constitutions written to comply with their requirements provided for voting rights for black men, but these forms of law could easily be changed. what was needed, most congressional republicans came to believe, was an amendment protecting black suffrage as a federal constitutional right.145 this change in perception based in experience and political reality also gave rise to a sense of urgency. with its end of session fast approaching 138 foner, reconstruction, supra note 32, at 342–43 (discussing violence and the rise of the ku klux klan). 139 brodie, supra note 54, at 299 (noting the growing republican belief that “the freedmen could never get police protection without suffrage”); donald, supra note 34, at 428 (noting that it was the “recalcitrance of the southern whites” rather than sumner’s persuasiveness that led senators to eventually vote with his radical bloc). 140 see wang, supra note 29, at 2213–15 (describing the importance of southern black men’s votes to grant’s victory in the 1868 election); gillette, supra note 30, at 40 (noting grant’s dependence on black votes). 141 foner, second founding, supra note 77, at 98; egerton, supra note 119, at 241 (observing that the republicans attributed their success in the 1868 presidential election to what they estimated as 400,000 black votes). 142 see generally charles hubert coleman, the election of 1868: the democratic effort to regain control (1933) (describing the resurgence of the democratic party’s popularity in the 1868 election, particularly among southern white men). 143 see derrick a. bell, jr., brown v. board of education and the interestconvergence dilemma, 93 harv. l. rev. 518, 523 (1980) (arguing that the “interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites”). 144 brodie, supra note 54, at 299 (“most republicans were now convinced . . . that the party needed the negro vote”); foner, second founding, supra note 77, at 98 (noting the connection between the statistics regarding grant’s election and broader calls for enfranchising black voters); foner, reconstruction, supra note 32, at 344 (describing a changed mood in congress as the radical generation faded from the scene). 145 see, e.g., foner, second founding, supra note 77, at 101 (noting the rapid change of heart on black enfranchisement by conservative republican senator william m. stewart of nevada). 2023] reconstruction’s lessons 763 on march 4, 1868, the fortieth congress saw that it had little time left.146 the next congress would retain an overwhelming majority of republicans in the senate, but republicans had lost twenty seats to democrats in the house, retaining their majority by a slimmer margin.147 the mood among republicans had also changed. as the radical republicans aged, the idealism with which reconstruction had begun faded as well, replaced by younger republicans’ pragmatic concerns about the future of the party and their political careers.148 stevens’ death in august 1868 personified this shift.149 and because participants sensed that this might be their last chance to secure protections for the country’s formerly enslaved citizens, even many radicals became pragmatic. the great abolitionist anticompromiser wendell phillips expressed this change of heart in his national abolitionist paper, the national anti-slavery standard, when he exclaimed on february 20, 1869: “for the first time in our lives we beseech . . . to be a little more politicians and a little less reformers.” 150 a flurry of activity in both chambers took place as various drafts changed hands and the members debated the content of another constitutional amendment.151 even though the radical republicans had previously argued that voting rights could be secured without an amendment,152 and the moderates had opposed a constitutional amendment, almost all now agreed that the better approach would be to inscribe voting rights in the constitution. 146 kurt lash, introduction to part 2a, in 2 essential docs., supra note 89, at 435, 436. 147 coleman, supra note 142, at 363–64. 148 see brodie, supra note 54, at 301 (describing stevens as “feverishly intent on creating before he died what he called ‘a political paradise,’ and . . . racked with fear that he would not live long enough”). sumner, too, was reaching the end of his life and career, though his uncompromising personality and distaste for compromise led him to have less influence than stevens in congress. see donald, supra note 34, at 238–39 (noting that “stevens was an organization man, who worked through committees and exerted influence through his control of the machinery of the house of representatives,” whereas sumner “announced principles, as from on mount sinai, and deplored the compromises needed to transform ideals into legislative reality”); see also foner, reconstruction, supra note 32, at 229–230 (discussing the very different styles, personalities and roles of stevens and sumner in congress). on “liberal” republicans’ retreat from the goals of reconstruction, see harold m. hyman, a more perfect union: the impact of the civil war and reconstruction on the constitution 530–34 (1973). 149 foner, reconstruction, supra note 32, at 344. 150 wendell phillips, the senate and the proposed amendment, nat’l antislavery standard, feb. 20, 1869, reprinted in 2 essential docs., supra note 88, at 532, 532. 151 kurt lash, introduction to part 2a, supra note 146, at 436. 152 sumner spoke against adopting any amendment at all, laying out three reasons for his position: (1) it was not needed because the constitution already secured the right of all citizens to vote so that, with the abolition of slavery, black men already possessed this right; (2) future congresses need not be checked because black male suffrage “will be a permanent institution as long as the republic endures;” and—perhaps his most salient and strategic concern—(3) proposing a constitutional amendment conceded that this right did not exist without an amendment. see suffrage and office holding amendment, speech of charles sumner, us senate (feb. 5, 1986), reprinted in 2 essential docs., supra note 88, at 498, 500 (quoting sumner that “nobody has yet been able to enumerate the states whose votes can be counted on to assure its ratification”); see also donald, supra note 34, at 352– 53 (adding more details about sumner’s opposition and republicans’ frustration with him for it). 764 colum. j. race & l. [vol. 13:734 a key question congress debated concerned the scope of a voting rights amendment. should it cover discrimination based only on race or also on related factors such as education and property? should the amendment articulate a positive right to vote or merely prohibit discrimination in voting? again, the republicans disagreed on how far to go in modifying traditional principles of federalism that granted the states control over voter qualifications. the original constitution saw voting as a political privilege, which states had the authority to bestow as they saw fit without federal government interference. the democrats invoked these arguments to oppose an amendment.153 some republicans were hesitant to go too far in upsetting traditional federalism as well.154 they felt more comfortable prohibiting states from discriminating on the basis of race in voting but otherwise wanted to allow states to continue to exercise broad authority over setting voter qualifications. many of the same legislators involved in drafting the fourteenth amendment took the lead in drafting the fifteenth as well. one of these was moderate republican john a. bingham of ohio, who had been the fourteenth amendment’s chief drafter. displaying his faith in law to solve racism, bingham argued that, if congress adopted a broad voting rights amendment, “abuses by states will hereafter be impossible.”155 but bingham had also come to understand that how congress wrote the law would be of great importance. showing prescience in forecasting how states would dodge a federal voting rights mandate, bingham warned that states could easily avoid granting voting rights to black men by imposing education and property qualifications. for this reason, bingham argued for language that would require nearly universal adult male suffrage (except for persons who in the future engaged in rebellion or had been convicted of serious crimes).156 the language he proposed would have stated: “the right of citizens of the united states to vote and hold office shall not be denied or abridged by any state on account of race, color, nativity, property, creed, or previous condition of servitude.”157 bingham acknowledged that this approach would prohibit states from enforcing many other popular qualifications for voting, such as education and religious qualifications (as imposed in new hampshire).158 nevertheless, bingham argued, without his proposal, “an aristocracy of property may be established, [or] an aristocracy of intellect. . .”159 153 see, e.g., suffrage amendment, speech of charles a. eldridge (d-wi), debate, us house (jan. 27, 1869), reprinted in 2 essential docs., supra note 88, at 463, 465 (arguing that “[t]he long-conceded right of the states to determine for themselves who of their citizens shall exercise the right of suffrage within their respective jurisdictions is now for the first time to be taken away”). 154 see, e.g., ralph j. roske, his own counsel: the life and times of lyman trumbull 139, 154 (1979) (explaining why moderate republican trumbull was not enthusiastic about the fifteenth amendment as an unconstitutional encroachment on states’ rights to set voter qualifications, though he did in the end vote for it). 155 suffrage amendment, speech of john bingham, debate, us house (jan. 29, 1869), reprinted in 2 essential docs., supra note 88, at 485, 486 [hereinafter bingham speech]. 156 see id. at 486 (quoting the language of bingham’s proposal). 157 suffrage amendment, addition of language protecting the right to hold office, us house (feb. 20, 1869), reprinted in 2 essential docs., supra note 88, at 532–33 [hereinafter feb. 20 house debate]. 158 bingham speech, supra note 155, at 486. 159 id. 2023] reconstruction’s lessons 765 bingham’s language was similar to what senator henry wilson proposed in the senate, which would prohibit “discrimination in the exercise of the elective franchise and right to hold office on account of race, color, nativity, property, education, or creed.”160 but others, including republican congressman george boutwell of massachusetts, demurred,161 and it was their view that prevailed. the version of the fifteenth amendment that congress ultimately approved prohibited discrimination solely on the basis of race and color in the states’ decisions about granting suffrage rights. this language neither defined voting as a fundamental constitutional right nor covered the kinds of closely related qualifications, such as education and property ownership, which former confederate states would soon use to disenfranchise virtually all black citizens for almost a century.162 in retrospect, the fortieth congress’s drafting decisions on the fifteenth amendment stand as yet another example of a missed opportunity to more effectively safeguard civil and political rights.163 but the amendment also represented a start to a process of expanding the franchise that continued far into the future.164 like the thirteenth and fourteenth amendments, the fifteenth amendment placed great faith in the united states supreme court and lower federal courts to energetically enforce legislation congress would promulgate through its specified enforcement powers. even at the time of its drafting, however, there were signs that the court could not be counted on as an ally. staunch abolitionist salmon p. chase was the chief justice of the court, but its record had not been notable for supporting congressional reconstruction.165 after dissenting in the slaughter-house 160 suffrage and office holding amendment, debate, us senate (feb. 8, 1869), reprinted in 2 essential docs., supra note 88, at 500, 511. 161 see, e.g., feb. 20 house debate, supra note 157, at 533 (quoting boutwell noting that similar proposals was already rejected by the house and senate). 162 one consideration the amendment’s drafters thought about was the fact that women lacked voting rights. to this point, some republicans responded that they were all for granting women voting rights too. see, e.g., suffrage and office holding amendment, supra note 160, at 516. others found the proposition that women should vote absurd, id. at 515, demonstrating that reconstruction-era prejudice involved not only race but also gender. 163 of course, the court may have disregarded more robust language in any event, just as it ignored the antidiscrimination mandate in the fifteenth amendment for so many years, as discussed further in part iv infra. 164 these later amendments include the nineteenth amendment granting women the right to vote, the twenty-fourth amendment banning poll taxes as a voter qualification in federal elections, and the twenty-sixth amendment granting the right to vote to citizens eighteen years of age or older. u.s. const. amends. xix, xiv, xxvi. the voting rights act of 1965, as amended, is one example of expansive voting rights legislation. pub. l. no. 89110, 79 stat. 437. 165 in ex parte milligan, 71 u.s. 2, 127 (1866), for example, the court ruled that congress and the federal executive could not establish trials by military commission in any location in which civilian courts were operating—in other words, in any location except actual theaters of war. this ruling thus invalidated the provisions of the 1863 freedmen’s bureau act that established such trial procedures and knocked out one of the tools the federal government had to protect freed persons against violence and other deprivations of their civil rights (though the case is also important in the broader picture in protecting united states civil liberties). after this decision, johnson issued orders dismissing pending military trials of civilians, thus granting impunity to many who had committed atrocities and were awaiting trial or had already been convicted in military courts. see charles 766 colum. j. race & l. [vol. 13:734 cases,166 chase died in 1873, and his successor would preside over the court’s dismantling of many legal aspects of reconstruction, as discussed further in part iv. one virtue of the fifteenth amendment was that congress’s intent was clear. in plain language, the fifteenth amendment declared it unlawful to deny the right to vote based on race, color, or previous condition of servitude. to the extent that this amendment was to be the self-help prong of the reconstruction advocates’ agenda, strong enforcement could have made a real difference. in different political circumstances, the court might have had little problem understanding congress’s unambiguously stated intent, which was very different from the vague and general language used in the fourteenth amendment. in the end, however, that made little difference, as discussed in part iv below. the court was bent on dismantling reconstruction regardless of what the amendments said. on february 25 and 26, 1869, the house and senate, respectively, voted with the requisite margins to pass the stripped-down, narrow version of the fifteenth amendment that became law.167 the states’ ratification of the fifteenth amendment presented the next challenge. ironically, it was not the southern states that posed the most difficulty on this score, because the reconstruction acts had forced them to enfranchise black male voters and establish reconstruction governments that could be expected to support the amendment. the states quickest to ratify were southern states that had recently won readmission to the union. these states had substantial black voting populations in 1868 as well as republican majorities in their state legislatures, composed of a mix of black and white legislators—an image offering a glimpse, during its brief existence, of what a nascent post-reconstruction era political world might have looked like if history had turned out differently. the anti-amendment states were in the north and west, because most of these states did not grant—and were adamantly against granting— equal voting rights on the basis of race. in other words, racism was rife in warren, the supreme court in united states history volume 3, at 164–65 (1926). following ex parte milligan, congress passed legislation over presidential veto to strip the court of its jurisdiction to hear habeas corpus appeals. see act of march 27, 1868, pub. l. no. 40-34, 15 stat. 44. in ex parte mccardle, 74 u.s. 506, 511–12 (1868), the chase court held that it lacked jurisdiction to hear a habeas appeal in a reconstruction act case, thus in effect signaling an implicit truce, for a time, between the court and congress over the constitutionality of reconstruction-era legislation. the chase court did not consider a case raising the constitutionality of reconstruction legislation until the slaughter-house cases, 83 u.s. 36 (1873), as discussed in part iv infra. 166 in the slaughter-house cases, the court majority held, inter alia, that the privileges or immunities clause of the fourteenth amendment granted only a very limited set of national citizenship rights, such as the rights to access seaports and travel to the seat of government. slaughter-house cases, 83 u.s. at 78–80. in response, dissenting justice stephen j. field remarked that, if this is all the fourteenth amendment had been designed to accomplish, congress and the people had worked themselves up about practically nothing. id. at 96 (field, j., dissenting). for further discussion, see part iv infra. 167 suffrage amendment, debate and passage, us senate (feb. 26, 1869), reprinted in 2 essential docs., supra note 88, at 536, 536–38 (showing dates and tallies of the final votes for the fifteenth amendment). 2023] reconstruction’s lessons 767 the “free states” too.168 those states did not direct their racism exclusively at black americans; california, nevada, and oregon rejected the fifteenth amendment because it would enfranchise their substantial chinese populations.169 the border states of delaware, maryland, and kentucky voted it down out of fears that enfranchising black voters would alter their electoral dynamics.170 after democrats won a majority in new york’s state legislature, they voted to rescind the state’s prior ratification (and then rescinded that vote, too).171 georgia’s vote on february 2, 1870, along with iowa’s vote the next day, pushed the state ratification tally over the three-quarters hurdle. president grant, in a special message to congress on march 30, 1870, announced that the fifteenth amendment was law, describing it as “a measure of grander importance than any other one act of the kind from the foundation of our free government to the present day.”172 supporters were of course jubilant about the amendment’s ratification, but the situation in the secessionist and border states presented little to celebrate. by 1870, the klan and like-minded groups had spread across the region, changing moderate republicans’ calculus as to what additional steps would be necessary to protect black citizens’ civil rights.173 alert to the threats such violence posed both to its reconstruction work and future electoral prospects, the still solidly republican congress passed three additional laws to enforce the provisions of the fourteenth and fifteenth amendments, acting under the authority these amendments granted in their enforcement clauses. b. the enforcement acts the first of congress’s new statutes aimed at protecting freed persons’ rights—including the now constitutionally enshrined right of black men to be free from discrimination in voting—was the enforcement act of may 31, 1870.174 that law made it a federal crime to interfere with a person’s right to vote without “distinction of race, color, or previous 168 states outside the south that restricted or denied voting rights on the basis of race included connecticut, pennsylvania, new jersey, new york, illinois, iowa, ohio, michigan, minnesota, oregon, nevada, and california. see wang, supra note 29, at 2162–63 (examining which states restricted or denied suffrage on the basis of race at the time of the fifteenth amendment’s ratification process); see also allan j. lichtman, the embattled vote in america 79 (2018) (“paradoxically, while most northern states denied black people the ballot, in former confederate states many southern blacks voted in the presidential election of 1868”); gillette, supra note 30, at 25–27 (discussing many northern state referenda rejecting black male suffrage by substantial majorities in the reconstruction era). 169 see id. at 153–55 (analyzing western patterns of opposition to the fifteenth amendment). 170 see id. at 80 (noting worries about the political effects of the fifteenth amendment in closely divided northern and border states); see also id. at 105 (providing more demographic statistics showing the political consequences provoking border states’ opposition). 171 ratification of the fifteenth amendment rescinded, ny times, jan. 6, 1870, at 1, reprinted in 2 essential docs., supra note 88, at 585, 585–86. 172 ulysses s. grant, message to congress announcing the ratification of the fifteenth amendment (mar. 30, 1870), reprinted in 2 essential docs., supra note 88, at 595, 596. 173 foner, reconstruction, supra note 32, at 454–56. 174 act of may 31, 1870, pub. l. no. 41-114, 16 stat. 140. 768 colum. j. race & l. [vol. 13:734 condition of servitude”175 and to prevent or intimidate a person from exercising the suffrage right.176 it further prohibited persons to “band or conspire together, or to go in disguise upon the public highways, or upon the premises of another” with the intent to violate citizens’ constitutional rights.177 a second act, which became law on february 28, 1871, decreed that the administration of national elections in specific jurisdictions would fall under the control of the federal government and that federal judges and united states marshals had authority to supervise local polling places.178 a third act, enacted in april 1871, sometimes referred to as the ku klux klan act, authorized the president both to use federal armed forces against persons engaged in conspiracies to deny equal protection of the law and to suspend habeas corpus rights to enforce the acts.179 all three enforcement acts defined conspiracies to deprive persons of their civil and political rights as federal crimes. instead of leaving enforcement to local officials, the enforcement acts assigned prosecutorial power to federal attorneys. to facilitate the united states attorney general’s prosecution of violations of the enforcement acts, congress passed yet another act to establish the department of justice.180 congress thus brought the power of the federal government to bear against state and local officials who interfered with black voting as well as against private parties who used violence to intimidate persons attempting to vote or otherwise exercise their rights. these acts, along with president grant’s support of federal prosecutions of the klan and other white-supremacist terrorists, produced an impressive spate of indictments, totaling somewhere between 1,000 and 2,500 cases in the early 1870s, along with more than 600 convictions.181 according to reconstruction historian eric foner, this effort “crush[ed] the ku klux klan” while it was occurring.182 thus, reconstruction provides a further pertinent lesson: federal prosecution of civil rights violations can help fight racist violence. four years later, the forty-third congress passed a final piece of reconstruction legislation expanding the specific civil rights protected under federal law. on february 4 and 27, 1875, the house and the senate, 175 id. § 2. 176 id. §§ 3, 4, and 5. 177 id. § 6. the act also made it unlawful for anyone to interfere with the civil rights protected in the civil rights act of 1866, pub. l. no. 39-31, 14 stat. 27, including the right to make contracts and enjoy equal protection of the laws. act of may 31, 1870, at § 16. 178 act of feb. 28, 1871, pub. l. no. 41-99, 16 stat. 433. as this act demonstrates, congress clearly selectively targeted its enforcement powers under the fourteenth and fifteenth amendments to some states and not others. compare id. with shelby cnty. v. holder, 570 u.s. 529, 535 (2013) (holding portions of the voting rights act of 1965 unconstitutional for treating various states differently, violating states’ “equal sovereignty”). 179 act of apr. 20, 1871, pub. l. no. 42-22, 17 stat. 13. 180 act of june 22, 1870, pub. l. no. 41-150, 16 stat. 162. 181 see 150 years of the department of justice, the u.s. dep’t of just., justice.gov/history/timeline/150-years-department-justice#event-1195101 [https://perma.cc/v3xh-8pbv] (last updated aug. 17, 2022); robert m. goldman, reconstruction and black suffrage: losing the vote in reese and cruikshank 38 (2001) (discussing case statistics); foner, second founding, supra note 77, at 121 (putting the total number of cases at 2,500). 182 foner, second founding, supra note 77, at 121. 2023] reconstruction’s lessons 769 respectively, approved, on party-line votes,183 the civil rights act of 1875, named in honor of senator sumner, who had recently died after pushing for such legislation for many years.184 the new act reaffirmed the basic rights in the civil rights act of 1866, including protection of the rights to make contracts, use the courts, hold property, and enjoy equal protection of law, but also expanded antidiscrimination protections to the use of public accommodations and transportation.185 it also provided for federal court jurisdiction over all cases brought under the act.186 president grant, at the midpoint of his only term in office, signed the measure into law on march 1, 1875.187 yet even as congress and the executive expanded federal civil rights protections and aggressively pursued enforcement, the end of reconstruction was almost at hand. an economic depression in 1873 caused hardship in many regions of the country; that situation became far more salient in white voters’ minds than protecting civil rights.188 in the 1874 midterm elections, voters delivered landslide victories to democratic candidates at both state and federal levels.189 two years later, in the compromise of 1877 that resolved the disputed presidential election of 1876, republican president-elect rutherford b. hayes ended reconstruction, removing the federal presence and allowing free reign to the so-called redeemer democrats who already controlled a number of southern state governments.190 at this point, the folly of the reconstruction-era leaders’ faith in the national government’s commitment to civil rights equality became clear. as longstanding radical abolitionist and president pro tempore of the fortieth senate benjamin wade expressed, hayes’ conduct left him with “indignation and a bitterness of soul that i never felt before. . . i had been deceived, betrayed, and even humiliated . . . i feel that to have emancipated these people and then to leave them unprotected [is] a crime as infamous as to have reduced them to slavery once they are free.”191 183 see to pass h.r. 796, govtrack, https://www.govtrack.us/congress/votes/432/h380 [https://perma.cc/y8z2-ufgh] (showing the house’s feb. 4, 1875, vote); to pass h.r. 796, govtrack, https://www.govtrack.us/congress/votes/43-2/s379 [https://perma.cc/h8xk9a5q] (showing the senate’s feb. 27, 1875, vote, with no democrats voting yes and four republicans voting no). 184 see donald, supra note 34, at 531–39, 586–87 (explaining this sequence of events). true to form, more moderate republicans such as senator trumbull initially opposed the measure on the ground that it was a “social equality bill.” id. at 545. 185 act of mar. 1, 1875, pub. l. no. 43-114, 18 stat. 335. 186 id. at § 3. 187 landmark legislation: civil rights act of 1875, u.s. senate, https://www.senate.gov/artandhistory/history/common/generic/civilrightsact1875.htm [https://perma.cc/hfk9-he6j] (last visited feb. 25, 2023). 188 foner, reconstruction, supra note 32, at 512–18 (describing the effects of this depression nationwide). 189 for a general discussion of the 1874 election season and representative incidents of violence that occurred, see id. at 549–53. 190 id. at 587–98 (describing the southern redeemer movement); franklin, supra note 32, at 196–97 (noting how quickly redemption occurred after some states’ readmission into the union). 191 letter from benjamin wade to uriah painter, n.y. times (apr. 9, 1877), reprinted in albert gallatin riddle, the life of benjamin wade 363 (1886). 770 colum. j. race & l. [vol. 13:734 almost an entire century would pass until the inception of what is sometimes referred to as the “second reconstruction.”192 this brief period included the eighty-eighth congress’s enactment of the civil rights act of 1964 and the voting rights act of 1965, with president lyndon b. johnson’s enthusiastic backing followed by approval by the warren court. president johnson’s “great society” social welfare legislation played a part too.193 until then, the reconstruction amendments and related legislative initiatives stood as promises made on paper, which the nation had failed to uphold. iv. reconstruction’s demise as reconstruction drew to a close, the supreme court wasted little time in demolishing the near-term potential force of the reconstruction amendments and related civil rights legislation.194 in 1873, the court’s majority made it plain that it had no interest in giving the fourteenth amendment anything but the most crabbed interpretation, opining in the slaughter-house cases that the rights protectable under the fourteenth amendment were so narrow as to be virtually nonexistent.195 as former unionist democrat justice stephen j. field argued in dissent, the majority’s reading rendered the amendment “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited congress and the people on its passage.”196 field pointed out that, on the majority’s reading, “no constitutional provision was required” whereas, if the amendment was in fact intended to protect “the natural and inalienable rights which belong to all citizens,” then the work of the amendment’s drafters “has profound significance and consequence” indeed.197 the slaughter-house cases eviscerated the potential of the privileges or immunities clause in a manner that continues to distort the fourteenth amendment’s interpretation to this day, as a vast body of literature has explored.198 while it is beyond the scope of this article to pursue that line of analysis, a basic point about what the court did in that case does matter to the analysis here. note how quickly the court cut short the fourteenth amendment’s doctrinal development—in just one case with 192 see generally manning marable, race, reform, and rebellion: the second reconstruction and beyond in black america, 1945-2006 (3d ed. 2007). 193 see generally joshua zeitz, building the great society: inside lyndon johnson’s white house (2018) (describing johnson’s great society’s programs); randall b. woods, prisoners of hope: lyndon b. johnson, the great society, and the limits of liberalism (2016) (describing the rise and fall of the great society initiative); julian e. zelizer, the fierce urgency of now: lyndon johnson, congress, and the battle for the great society (2015) (analyzing the factors that made the great society initiative possible). 194 but see pamela brandwein, rethinking the judicial settlement of reconstruction 30 (2011) (arguing that the court’s goal during this period was not to gut the reconstruction amendments and statutes but to preserve a space for these laws to address “state neglect” by remedying “unpunished interference on account of race” in civil and political rights). 195 slaughter-house cases, 83 u.s. 36, 78–80 (1872). 196 id. at 96 (fields, j., dissenting). 197 id. 198 see, e.g., john harrison, reconstructing the privileges or immunities clause, 101 yale l. j. 1385, 1387 (1992) (noting that the slaughter-house cases “virtually read out” the privileges or immunities clause from the fourteenth amendment). 2023] reconstruction’s lessons 771 bad facts (the plaintiffs were contesting legislation related to their business interests, not discrimination against them on the basis of their race) and even worse results. the court had not needed to render an opinion on the privileges or immunities clause’s meaning to decide it did not apply to the plaintiffs’ case, but it took the opportunity to reach that broad question nonetheless, in a way that badly damaged the original public meaning of that amendment. the court, in other words, refused to acknowledge congress and the people’s instructions in amending the constitution to bring the federal government into the protection of civil rights equality. the court was acting politically, just as the roberts court did in eviscerating congress’s constitutionally authorized acts to protect voting rights and other legacy aspects of the reconstruction amendments.199 in the slaughterhouse cases, the court signaled its unwillingness to embrace the change congress and the people called for through the fourteenth amendment. in short order, the court started to invalidate key provisions of the legislation enacted under the enforcement provisions of the fourteenth and fifteenth amendments as well. the court took those steps in cases such as united states v. reese,200 united states v. cruikshank,201 united states v. harris,202 and the civil rights cases of 1883.203 these decisions struck down key provisions of both the enforcement acts of 1870 and 1871 and the civil rights act of 1875. because these cases are not well known today, a short discussion of them is worthwhile here. the underlying facts in reese arose from the denial of the right to vote to black male citizens in citywide elections that took place in january 1873 in lexington, kentucky.204 the court, with brand-new chief justice morrison waite writing the opinion, struck down as overbroad sections 3 and 4 of the enforcement act of 1870, on the ground that the language of the two provisions “does not confine their operation to unlawful discriminations on account of race.”205 therefore, under the court’s archaic logic, even though the prosecution at issue in fact did aver unlawful discrimination on account of race in voting, the statutory provisions were not a lawful exercise of congress‘s enforcement authority 199 see generally, shelby cnty. v. holder, 570 u.s. 529, 551–57 (2013), discussed further the in part v.a infra. 200 united states v. reese, 92 u.s. 214, 220–22 (1876) (striking down portions of the enforcement act of mar. 31, 1870, pub. l. no. 41-114, 16 stat. 140). 201 united states v. cruikshank, 92 u.s. 542, 552–59 (1875) (striking down an indictment under § 6 of the enforcement act of 1870). 202 united states v. harris, 106 u.s. 629, 644 (1883) (finding no “constitutional authority” for § 2 of the enforcement act of apr. 20, 1871, pub. l. no. 42-22, 17 stat. 13). 203 the civil rights cases, 109 u.s. 3, 12–15 (1883) (overturning the first two sections of the civil rights act of 1875, pub. l. no. 43-114, 18 stat. 335). 204 in these elections, black residents outnumbered whites in the city, but a white democrat won the election handily. goldman, supra note 181, at 66. the local press reported that this was due to the suppression of the black vote by operation of a poll or capitation tax the city had enacted a few years before. id. a federal grand jury indicted several election officials, including hiram reese, who refused to accept the poll tax tendered by william garner, a qualified black voter, and then refused to receive and count garner’s vote. see reese, 92 u.s. at 215. the circuit court sustained the defendants’ demurrer to the indictment and certified the case to the supreme court for an opinion on the constitutionality of sections 3 and 4 of the enforcement act of 1870. id. 205 reese, 92 u.s. at 220. 772 colum. j. race & l. [vol. 13:734 under the fifteenth amendment.206 the court’s modern practice would generally call for narrowing the statute to constitutional limits rather than striking it down entirely, especially when its application would be constitutional on the facts in the case under review.207 indeed, as a matter of logic alone, the reese court had this option even in 1874. but it declined to do so, stating, “[w]e are not able to reject a part which is unconstitutional. . . this would to some extent substitute the judicial for the legislative department of the government.”208 that faulty reasoning ignored the fact that, by striking down the provisions in toto, the court was rejecting congress’s intent far more broadly than it would have if it narrowed the statute’s interpretation to cover only acts that clearly deprived black persons of civil rights. again, the weakness of the court’s reasoning suggests its political motivations. it was not doing its best to preserve congress’s work but instead was reaching to knock it down. these were the points the court’s sole dissenter made, noting that the facts alleged in the case did involve the denial of the right to vote on account of race, 209 the statute did recite that the unlawful acts prohibited were denials of voting rights on account of race, and the intention of congress on this subject “is too plain to be discussed.”210 congress had, after all, just passed the fifteenth amendment, the object of which plainly was to “secure to a lately enslaved population protection against violations of their right to vote on account of their color or previous condition.”211 but this logic did not move the court’s majority, predisposed to find ways of curtailing the enforcement acts in light of their broad reach and interference with traditional federalism principles. in cruikshank, the court engaged in an even more transparent dodge of congress’s intent under the enforcement acts, holding that the prosecutors there had failed to allege that the defendants—who were none other than the leaders of the colfax massacre, regarded as the worst instance of mass violence during reconstruction212—had violated any federally protected rights.213 cruikshank involved an indictment filed 206 id. 207 see, e.g., alaska airlines, inc. v. brock, 480 u.s. 678, 686 (1987) (noting that the court generally will presume “that congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision,” unless congress has indicated otherwise). 208 reese, 92 u.s. at 221. 209 id. at 238, 243 (hunt, j., dissenting) (noting that garner’s “race and color” prevented the election officers’ acceptance of his tax). 210 id. at 241. 211 id. 212 foner, reconstruction, supra note 32, at 437. professor carol anderson’s graphic description of this incident puts it thus: . . . there was simply death. buzzards, dogs, and insects feasting on what was left of the black militia. brains splattered all over the ground. faces missing. bullets that had made swiss cheese of men’s backs, especially those who had surrendered. bodies upon bodies upon bodies that had clearly undergone unspeakable torture all on the battleground of democracy. carol anderson, the second: race and guns in a fatally unequal america 97 (2021). 213 in addition, seeming to whipsaw the federal prosecutors who were attempting to pursue civil rights violations under the enforcement acts, the court stated that, in reese, it 2023] reconstruction’s lessons 773 under section 6 of the enforcement act of 1870, which, as already noted, made it unlawful for “two or more persons” to “band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to . . . injure, oppress, threaten, or intimidate any citizen, with the intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the united states.”214 the defendant participants in the colfax massacre had been involved in murdering an estimated one hundred freed persons who had been meeting in a courthouse to discuss political strategy following a contested gubernatorial election in that state.215 a federal attorney had secured an indictment against some of the ringleaders of the massacre, and the federal circuit court certified questions concerning the indictment’s legality to the supreme court. the indictment contained numerous counts, which the cruikshank court divided into two categories. one category involved counts that averred that the defendants’ intent was to prevent the victims in the “exercise and enjoyment of rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the united states, and as citizens of the said state of louisiana . . . for the reason” that they were “persons of african descent and race, and persons of color, and not white citizens.”216 this language was as explicit as it could be about race being the reason for the denial of rights, but the court held that it failed to pass legal muster because in these counts “[t]here is no specification of any particular right.”217 in a second category, the court placed all counts that did aver specific rights—namely, interference with the victims’ rights to peaceably assemble, bear arms, and enjoy security in their persons and property under the due process right to life, liberty, and property. the court held that none of these rights were rights of national citizenship, which were all that the fourteenth amendment protected.218 even the right to peaceably assemble for lawful purposes was not a right of national citizenship, since it “existed long before adoption of the constitution” and was “not, therefore, had just explained that “exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude” was a right of national citizenship (ignoring the fact it had just struck down much of that protection), but “as it does not appear in these counts that the intent of the defendants was to prevent these parties from exercising the right to vote on account of their race, &c., it does not appear that it was their intent to interfere with any right granted or secured by the constitution or laws of the united states.” united states v. cruikshank, 92 u.s. 542, 556 (1875). in an exercise of judicial formalism that blinks reality, as was quite common in the court’s jurisprudence of the period, the court concluded, “we may suspect that race was the cause of the hostility, but it is not so averred.” id. this conclusion can only be called astonishing given that the case involved armed conflict between whites and a hugely outnumbered group of black citizens who had gathered to assert their political rights. 214 cruikshank, 92 u.s. at 548. 215 on the colfax massacre, see generally charles lane, the day freedom died: the colfax massacre, the supreme court, and the betrayal of reconstruction (2008). 216 cruikshank, 92 u.s. at 557. 217 cruikshank, 92 u.s. at 557. 218 cruikshank, 92 u.s. at 553–55. 774 colum. j. race & l. [vol. 13:734 a right granted to the people by the constitution.”219 the court used similar logic to dismiss the other counts alleging specific violations of rights listed in the constitution. legal historians sometimes characterize the reese and cruikshank rulings as signaling the end of the reconstruction era, but, as experts in this period have pointed out, the subsequent history is more complicated.220 federal prosecutors continued to pursue cases under the provisions of the enforcement acts that the court had not struck down, trying to draft their indictments to avoid the pitfalls the prosecutors in the reese and cruikshank cases had encountered. but the court continued to invalidate civil rights prosecutions when opportunities presented themselves, as in united states v. harris, where the court again used the specious logic of reese to invalidate provisions of the ku klux klan act on the grounds that those provisions could, in some other case, potentially be applied to conspiracies against whites.221 the court reached this conclusion despite the facts in the case before it, involving a lynch mob that beat and murdered black men being held in a local jail.222 219 id. at 551. the court acknowledged that the right to peaceably assemble to petition congress for redress of grievances was an attribute of national citizenship, but since the indictment had not stated that this was the specific purpose of the freedmen’s meeting in the courthouse, the court held that it would not sustain these counts on that ground. id. at 552–53. 220 see, e.g., goldman, supra note 181, at 124 (“race relations during the last quarter of the nineteenth century were in fact characterized by their ‘variety and inconsistency.’”) (quoting c. vann woodward, the strange career of jim crow (1955)). 221 united states v. harris, 106 u.s. 629, 641 (1883). 222 id. at 629–32. more specifically, an armed group of white men stormed a tennessee jail and captured four black prisoners, beating them and murdering one. id. prosecutors charged them with violating section 2 of the second force or ku klux klan act, which made it unlawful for two or more persons to “conspire together, or go in disguise upon the public highway or upon the premises of another for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws.” act of apr. 20, 1871, pub. l. no. 42-22, 17 stat. 13, §2. the court held this provision unconstitutional because, first, following the specious logic of reese, the law “covers cases both within and without the provisions of the amendment,” since conspiracies between white men to violate other white men would also be punishable under it. harris, 106 u.s. at 641. second, the court cited its “state action” logic from virginia v. rives, 100 u.s. 313 (1880). harris, 106 u.s. at 639. in a decision that portended the invalidation of the civil rights act of 1875 three years later, see the civil rights cases, 109 u.s. 3, 12–15 (1883), the rives court held that the protections of the fourteenth amendment could only apply to state action and not actions of individuals, even those acting with state authority. rives, 100 u.s. at 318. thus, the black defendants in rives were not entitled to black jury members because, for one, a “mixed jury” was “not essential to the equal protection of the laws,” id. at 323, and, second, the allegation in the case had not been that state law discriminated against black citizens in jury selection, but instead that “the officer to whom was entrusted the selection of person” had “confined his selection to white persons.” id. at 321 (emphasis supplied). the rives court acknowledged that “[i]n one sense, indeed, his act was the act of the state,” but nevertheless concluded that the officer had been engaged in “criminal misuse of the state law” and thus “cannot be said” to have denied rights to the black defendants. id. note how this logic further narrowed the scope of the fourteenth amendment so that denial of rights by state officials, exercising discretion granted them under state law, could not constitute state action where discrimination was not patent on the face of the law. 2023] reconstruction’s lessons 775 as experts point out, reconstruction unwound in locally varied ways and timelines so that blanket generalizations oversimplify.223 but there is no denying that, by the mid-1870s, the key institutions necessary for reconstruction to succeed—the court, the congress, state governments, republican state constitutions, and, after the election of 1877, the federal executive branch—either opposed by every means possible (as in the former secessionist and border states) or failed to continue to press forward the reconstruction agenda. in 1883, in the civil rights cases, the court struck down the civil rights act of 1875, declaring it unconstitutional because it reached private actions.224 in so doing, it rejected the perspectives advanced by dissenting justice john marshall harlan, a former slaveholder who had become a civil rights advocate.225 first, justice harlan argued that the thirteenth amendment, which clearly covered private action, prohibited discrimination that perpetuated the “badges and incidents” of slavery.226 he argued that segregation in places of public accommodations was such a badge or incident of slavery.227 second, justice harlan suggested that, in public transportation and accommodations, where owners of conveyances were clearly providing public goods, discrimination against passengers on the basis of race or color violated the civil rights to free movement and personal agency that all citizens should enjoy.228 the court’s record of blazing defiance of congress’s intent under the reconstruction amendments continued through the nineteenth century. in giles v. harris, cynical civil war veteran and father of legal realism justice oliver wendell holmes229 rejected test case litigation that racial justice advocates filed to challenge the patently racist voter disenfranchisement device of grandfather clauses.230 these clauses provided that only men whose grandfathers had voted before the civil war could vote, thus patently perpetuating racial exclusion in voting.231 justice holmes invoked the political question doctrine to conclude that the injury alleged constituted too great a harm for the judiciary to address. of course, the fifteenth amendment’s purpose was to prevent precisely this type of harm, but holmes’ concern about the court’s institutional capacity to police resisting states took precedence in his view. thus, with only a few victories 223 goldman, supra note 181, at 124, 128; reconstruction encyclopedia, supra note 77, at 833 app. 3 (listing the dates of “redemption” of each of the secessionist states, defined as the date on which white democrats again achieved control over state government). see also id. at 520–22 (defining redemption and its characteristics throughout the south). 224 civil rights cases, 109 u.s. at 11–12. 225 see generally peter s. canellos, the great dissenter: the story of john marshall harlan (2021). canellos suggests that harlan’s close relationship to his black half-brother, robert harlan, contributed to his development of racial equality commitments. see id. at 355. 226 civil rights cases, 109 u.s. at 35 (harlan, j., dissenting). 227 id. at 34–36. 228 id. at 37–43. 229 for more on holmes, see infra notes 241–243 and accompanying text. 230 giles v. harris, 189 u.s. 475, 482, 488 (1903). 231 for a description of the wave of grandfather clauses adopted by southern states in the period between 1890 and 1915, see benno c. schmidt, jr., principle and prejudice: the supreme court and race in the progressive era. part 3: black disfranchisement from the kkk to the grandfather clause, 82 colum. l. rev. 835, 845–47 (1982). 776 colum. j. race & l. [vol. 13:734 along the way in the first half of the twentieth century,232 both the fourteenth and fifteenth amendments would lie dormant—in the words of historian foner, as “sleeping giants”233—for almost 100 years. although most of the framers were doers rather than scholars, they did leave behind some reflections offering their insights into how and why their efforts had failed. former free soil party founder, longtime radical senator, and eighteenth vice president of the united states, henry wilson wrote a three-volume analysis entitled the rise and fall of the slave power in america, in which he observed that, even if all constitutional questions had been correctly resolved, there “remains the far more serious difficulty of constituency” and “man’s ability to govern himself.”234 exhibiting the longstanding ambivalence about universal suffrage even radicals displayed during reconstruction, wilson repeated his worries about illiteracy given full “[m]anhood suffrage”; on the other side of the coin, he observed pessimistically that “[t]he fact, too, that the south . . . still contends that this is a white man’s government, in which the freedmen have no legitimate part, and from which they shall be excluded, even if violence and fraud be needful therefor, may well excite alarm in the most sanguine and hopeful.”235 law, in other words, had not been enough. as wilson put it: the demon of slavery has indeed been exorcised and cast out of the body politic, but other evil spirits remain to torment, if not destroy. the same elements of character in the dominant race . . . still remain to be provided for, guarded against or eliminated, in our efforts to maintain a free form of government. perhaps, indeed, legislation has done its best or utmost, and all that now remains or can be done, is to bring up the popular sentiment and character to its standard. can it be done?236 if the difficulty of changing human hearts and minds through prescriptive law was one of wilson’s insights, another was the need for social welfare to make the ideal of civil rights equality work in actuality. wilson called on “the members of the republican party to take a new departure and incorporate philanthropic and patriotic action with political action; [in] other words, to engage individually and socially, and outside of party organization, in missionary work to prepare those made free to use intelligently and wisely the power their enfranchisement has given them.”237 the policies of reconstruction had been “’[i]nadequate, almost ludicrously so, to the great and manifold exigencies of the situation, except as the beginning and earnest of greater and more systematic efforts.”238 232 see. e.g., guinn v. united states, 238 u.s. 347, 356–68 (1915) (striking down oklahoma’s grandfather clause, though by this time states had moved to using fake education tests to disenfranchise black voters). 233 foner, second founding, supra note 77, at xxviii. 234 henry wilson, 3 history of the rise and fall of the slave power in america 737 (1875). 235 id. 236 id. at 738–39. 237 id. at 739. 238 id. at 740. 2023] reconstruction’s lessons 777 wilson closed his analysis with a call for “human instrumentalities,” as he put it, to do much more.239 as discussed in part v, that “much more,” as seen through the lenses of the present, might include more work in voluntary, collaborative, and civil society arenas that allow for experiments with new approaches to social welfare outside the strictures of law. the demise of reconstruction undoubtedly left its advocates despondent, but the lessons they took from their experiences do not appear to have led them to renounce their beliefs in the potential for greater justice through law. leaders such as james ashley and lyman trumbull, for example, went on to pursue other social reform causes, including northern workers’ labor rights and economic reform legislation to curb the excesses of capitalism.240 to be sure, changes were afoot in late nineteenth century jurisprudence. in 1881, jurist oliver wendell holmes would write his important book rejecting legal formalism’s conception of law as a logical system and emphasizing instead the extra-legal factors—including politics, ideology, and personal prejudice—that influence judges’ decisions.241 young enough to have felt the duty to enlist to fight in the war and develop a deep cynicism based on what he experienced, 242 holmes’ life spanned the nineteenth to the twentieth centuries and his ideas reflected a new generation’s perspective; most of the key advocates of congressional reconstruction, whose lives did not extend beyond the nineteenth century, retained a more humanitarian and idealistic outlook. their ideas, combined with the legal realism holmes introduced, would be passed forward to later generations of racial justice and human rights activists.243 239 id. wilson incorporated religious references as well, referring to “god’s hand in american history” and “the many divine interpositions therein recorded,” while also noting, consistent with his call for people to do more, that “no faith, personal or national, is legitimate or of much avail that is not accompanied by corresponding works.” id. 240 see rebecca e. zietlow, the forgotten emancipator: james mitchell ashley and the ideological origins of reconstruction 157–77 (2018) (detailing ashley’s work on northern labor rights after losing his congressional seat in 1868); krug, supra note 37, at 346–47, 349–50 (discussing trumbull’s work on labor rights, legislation to curb monopolies, defense of eugene debs, and promotion of the populist people’s party following his senate defeat in 1873); roske, supra note 154, at 172–73 (describing trumbull’s work against monopolies and “the money power”). bingham, on the other hand, did not continue to be involved in domestic political reform; instead, he served for twelve years as united states ambassador to japan, where he “took a firm anticolonial stance” but, according to his biographer, “said virtually nothing about constitutional law” after he retired from congress in 1873. gerard n. magliocca, american founding son: john bingham and the invention of the fourteenth amendment 167, 169 (2013). 241 see, e.g., oliver wendell holmes, the common law 1 (1881) (espousing his famous adage that the “life of the law has not been logic: it has been experience. the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”) 242 see, e.g., louis menand, the metaphysical club 59 (2001) (arguing that holmes and other men of his generation come back from the war disdainful of the “individualism, humanitarianism, and moralism that characterized northern intellectual life before the war”). 243 holmes’ cynicism, in contrast, contributed to his rejection of law’s potential use as a moral tool that could be employed to protect the vulnerable. in authoring cases such as giles v. harris, 189 u.s. 475, 482 (1903), which, as discussed, rejected a carefully crafted 778 colum. j. race & l. [vol. 13:734 v. epilogue & conclusions what are we to make of the objectives of the reconstruction advocates, their fifteen-year battle, and its many failures (along with some important successes, including permanently abolishing slavery and involuntary servitude and instituting the concept of birthright citizenship in the united states)? what were the key lessons they learned and what might be their application to the present times? to explore these questions, this section first presents a short epilogue sketching the aftermath of reconstruction in racial justice advocates’ work over the next century, and then assesses what continuing relevance reconstruction’s history may have today. a. a short epilogue the framers passed their ideas on to the next generation of postreconstruction racial justice advocates.244 these advocates developed a multitude of strategies, some based on the reconstruction amendments and others not, to tackle racial injustice during the so-called “nadir” period in national race relations following emancipation, typically dated between 1880 and 1915.245 they did not get very far on the legal front, but a few victories did occur. for example, a handful of states, including new york and minnesota, passed state civil rights statutes modeled on the civil rights act of 1875, and advocates brought a few successful cases under these laws.246 they also won several supreme court civil rights cases, though these cases at first changed little on the ground.247 t. thomas fortune, son of florida reconstruction politician emmanuel fortune and educated in freedmen’s bureau schools, articulated the idea that became the template for a series of organizations intended to provide a national nonpartisan structure for racial justice reform.248 these organizations, which grew directly out of black abolitionists’ meetings in the 1830s and beyond, included the afro american league, the afro american council, and the niagara movement, which then flowed into the founding of the naacp in 1910.249 this biracial group ended up having staying power, led in its first years by oswald garrison villard, grandson of abolitionist william lloyd garrison, and having as its chief litigator moorfield storey, former secretary to charles challenge to alabama voter disenfranchisement law, and buck v. bell, 274 u.s. 200, 205–08 (1927), which upheld sterilization of the “feeble minded” in the interest of eugenics (of which holmes was an enthusiastic advocate), holmes articulated a jurisprudence unsympathetic to the goal of using law to create a more justice social order. holmes’ proto legal realism would pave the way for sociological jurisprudence and then the legal realist movement, and some of the participants of those movements, including charles hamilton houston, would contribute important ideas about to how to use law for social change that blended holmes’ anti-formalism with humanitarian and abolitionist values. on houston’s intellectual influences and civil rights work, see generally genna rae mcneil, groundwork: charles hamilton houston and the struggle for civil rights (1983). 244 see generally carle, defining the struggle, supra note 64 (discussing racial justice advocacy work of the post-reconstruction generation of black leaders). 245 see, e.g., id. at 2–3. 246 id. at 58–62. 247 id. at 133–35. 248 id. at 31–54. 249 id. at 54–121, 174–92, 252–56. 2023] reconstruction’s lessons 779 sumner.250 w. e. b. du bois provided important intellectual vision based on the combination of his sociological, historical, and early critical race theory genius.251 in its early years, the naacp won a few cases, including guinn v. united states, which struck down oklahoma’s grandfather clause as unconstitutional under the fifteenth amendment,252 and buchanan v. warley, which invalidated a louisville, kentucky housing segregation ordinance.253 these wins fueled the organization’s growth, which, in turn, propelled a plethora of experiments with a wide variety of tactics. these included, unsuccessfully, legislative254 and international human rights advocacy255 and, more successfully, court-based approaches on issues including housing, criminal defense, and voting.256 that work culminated, most famously, in the case that stands in the public memory for the end of de jure race classifications, brown v. board of education.257 at the same time, ideas about the relationship between law and socio-political psychology continued to develop. in the 1920s, sociological jurisprudence helped inspire the naacp’s legal director, charles hamilton houston to conceptualize lawyers as social engineers.258 philosophical pragmatism and its offspring, united states legal realism, further advanced thinking about how to use law for social change.259 almost one hundred years after the reconstruction amendments’ passage, american national political institutions lined up in a perfect storm in which the three branches of national government worked in tandem, for a short but significant time, on a so-called “second reconstruction.”260 that period, as already noted, saw passage of the civil rights act of 1964 and the voting rights act of 1965 as well as significant social welfare legislation. the lasting damage done by reconstruction’s demise emerged in the ways the court upheld these laws. to take but one example, the warren court’s decision to uphold the civil rights act under the commerce clause rather than the enforcement clause of the 250 id. at 251–66. 251 id. at 27, 260. 252 united states v. guinn, 238 u.s. 347, 356–68 (1915). 253 buchanan v. warley, 245 u.s. 60, 82 (1917). 254 see, e.g., robert l. zangrando, the naacp crusade against lynching, 1909-1950 at 38–50 (1980) (tracing some of the naacp’s advocacy for federal anti-lynching legislation). 255 see carol anderson, eyes off the prize: the united nations and the african american struggle for human rights 1944-1955 (2003) (describing the naacp’s work at the united nations). 256 see, e.g., loren miller, the petitioners: the story of the supreme court and the negro 258–62 (1966) (introducing an account of this broad-ranging litigation work). 257 brown v. bd. of educ., 347 u.s. 483, 495 (1954). 258 see generally mcneil, supra note 243 (describing houston’s influences, ideology, and practices). 259 see, e.g., susan d. carle, john dewey and the early naacp: developing a progressive discourse on racial injustice, 1909-1921, in dewey’s enduring impact: essays on america’s philosopher 249, 249–50, 255–62 (john r. shook & paul kurtz eds., 2011) [hereinafter carle, john dewey] (describing dewey’s influence on movements for racial justice). 260 see marable, supra note 192, at 38–40 (describing how the supreme court, congress, and president johnson all contributed to the desegregation effort). 780 colum. j. race & l. [vol. 13:734 fourteenth amendment, was due to the negative precedent set by the civil rights cases, discussed in part iv above, which held that the fourteenth amendment did not authorize congress to regulate private conduct.261 like the reconstruction era, this period lasted less than two decades. it came to an end with the burger, rehnquist, and roberts courts, together with the elections of presidents ronald reagan, george h.w. and george w. bush, and donald j. trump. a critical blow to the federal legislative gains of the 1960s occurred when the roberts court, in shelby county v. holder,262 invalidated a key provision of the voting rights act, despite the virtually unanimous bipartisan support of both houses of congress in their votes to renew the act. more specifically, the court invalidated section 4 of the act, which provided that any state that in 1964 had voter participation levels below fifty percent of the voting eligible population must submit proposed changes to their voting procedures to the department of justice pursuant to the provisions of section 5 of the act. this ruling in effect rendered section 5’s preclearance program inoperative. the court’s ruling in shelby county employed specious logic just as post-reconstruction courts did in the decisions discussed in part iv above. chief justice roberts’ opinion for the majority invented a concept he termed “equal state sovereignty”; that principle, he claimed, barred congress from using its fourteenth and fifteenth amendment enforcement powers to impose requirements on some states but not others.263 but this assertion ignored the fact that all of the reconstructionrelated legislation congress passed in the period contemporaneous with its passage of the reconstruction amendments, as detailed in parts ii and iii above, singled out some states—namely, those that had seceded and were continuing to resist civil rights equality—for different, targeted treatment.264 an originalist court should very much care about such contemporaneous evidence of original public meaning,265 but in this case the desired result, not any principled methodology of constitutional interpretation, drove the majority’s analysis. as judge richard a. posner pointed out, “the [c]ourt’s invocation of ‘equal sovereignty’ is an indispensable prop of the decision,” but “there is no doctrine of equal sovereignty.”266 261 see heart of atlanta motel v. united states, 379 u.s. 241, 250–52 (1964) (upholding the civil rights act of 1964 under the commerce clause, rather than the enforcement clause of the fourteenth amendment, which would have required overruling the civil rights cases, 109 u.s. 3 (1883)). 262 shelby cnty. v. holder, 570 u.s. 529, 556–57 (2013). 263 id. at 535, 544–45. 264 see supra note 178. 265 see, e.g., n.y. state rifle & pistol ass’n v. bruen, 142 s. ct. 2111, 2122, 2127– 28 (2022) (looking to historical evidence of original public meaning); dobbs v. jackson women’s health org., no. 15-1392, slip op. at 79–101 app. a (u.s. june 24, 2022) (surveying state laws in existence in 1868 to determine the scope of the right to abortion under the fourteenth amendment). 266 richard a. posner, the supreme court and the voting rights act: striking down the law is all about conservatives’ imagination, slate (june 26, 2013), https://slate.com/news-and-politics/2013/06/the-supreme-court-and-the-voting-rights-actstriking-down-the-law-is-all-about-conservatives-imagination.html [https://perma.cc/g9sd66bm]; see also eric posner, john roberts’ opinion on the voting rights act is really lame, 2023] reconstruction’s lessons 781 in shelby, chief justice roberts reassured that “[o]ur decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2” of the voting rights act.267 that assurance proved hollow when the roberts court then narrowed section 2’s application as well.268 since then, the court has continued to uphold state legislation designed to restrict voting,269 and as of this writing promises to do more such damage in the future. at the same time, the nation has endured a blatantly racist president whose rhetoric invoked the worst of the redeemers’ ideology.270 congress has shown no signs of being able to take up, much less move forward, a racial justice agenda, and future control of the federal executive branch and congress is very much up in the air. nothing close to the perfect alignment of the stars necessary for a “third reconstruction” exists or can realistically be expected to arise in the foreseeable future. b. conclusions in these times, as during reconstruction, the nation lacks the rare alignment of all three federal branches pushing strongly in favor of progress on racial justice issues that characterized the 1960s. given these political conditions, racial justice advocates may wish to draw on some of the hard lessons the reconstruction advocates learned as discussed above, including the following. 1. be skeptical about the effect of words on paper alone as discussed above, reconstruction’s advocates learned through their experiences attempting to enforce civil rights equality through the fourteenth amendment that mere words on paper, even when put into the constitution, cannot be counted on to produce intended effects without the enthusiastic support of the branches of federal and state government charged with interpreting and enforcing the law. this is not to say that words on paper do not matter; they obviously do, and nothing about this article’s argument is intended to downplay the value of the fourteenth amendment. two key lessons emerge from the reconstruction amendments’ partial failures, however. first, at the level of horizontal separation of powers, it is clear that successful achievement of the goals slate (june 25, 2013) https://slate.com/news-and-politics/2013/06/supreme-court-on-thevoting-rights-act-chief-justice-john-roberts-struck-down-part-of-the-law-for-the-lamest-ofreasons.html [http://perma.cc/uh7n-98e4] (“roberts is able to cite only the weakest support for this [equal sovereignty] principle . . . . none of the usual impressive array of founding authorities show up in his analysis”). 267 shelby cnty., 570 u.s. at 557. 268 see brnovich v. democratic nat’l comm., 141 s. ct. 2321, 2336–43 (2021) (rewriting traditional standards for proving section 2 cases to make it harder for plaintiffs to succeed). 269 see, e.g., cases cited supra note 13. 270 see, e.g., katie reilly, here are all the times donald trump insulted mexico, time (aug. 31, 2016, 11:35 am), http://time.com/4473972/donald-trump-mexico-meetinginsult/ [https://perma.cc/m4ug-jldq] (quoting trump saying, inter alia, “[t]hey’re bringing drugs. they’re bringing crime. they’re rapists”); roque planas, donald trump blames crime on blacks, hispanics, huffpost (june 5, 2013, 8:04 pm), https://www.huffpost.com/ entry/donald-trumpblames-crime_n_3392535 [https://perma.cc/9dhw-mjlv] (quoting trump’s comment that black and latino people commit the “overwhelming amount of violent crime in our major cities”). 782 colum. j. race & l. [vol. 13:734 articulated in the fourteenth amendment would have required words on paper backed by strong support from the court, the executive, and congresses far into the future. the twin examples of reconstruction in the 1860s and the second reconstruction of the 1960s teach that advantageous alignments of all three federal branches are rare and, when not present, preclude major change through legislative dictate under the complex structure of united states government. incremental progress may occur and much important ground can be laid in nadir periods to create the conditions to move forward when conditions change.271 the reverse is also true; major backsliding is also expectable when blatant racists control the executive branch, whether they be andrew johnson,272 woodrow wilson,273 or donald trump.274 second, at the level of vertical separation of powers, reconstruction failed due to powerful resistance from states, local governments and private citizens. law does not necessarily change human minds and hearts, as contemporary behavioral theorists are starting to study empirically using sophisticated new data analysis tools.275 in light of these realities, scholars and other public intellectuals whose job it is to generate ideas to advance racial justice goals must refrain from engaging in naive faith in law on the books.276 to be sure, they must fight hard to protect doctrines that appear in great jeopardy today in light of the proclivities of the roberts court.277 smart defensive litigation and doctrine-focused scholarship must continue, if only to minimize the harm the current court may wreak. but today’s racial justice advocates in the academy and beyond sometimes seem insufficiently attentive to the reality that doctrine by itself is necessary but not sufficient. doctrinal tweaking probably will not result in much, if any, positive change given the ideological and political commitments of the current majority on the court. given these current conditions, the now-traditional public impact litigation techniques the naacp first developed,278 and especially affirmative test 271 see carle, defining the struggle, supra note 64, at 297–98 (describing how black activists’ multi-dimensional, ground-laying efforts during the nadir period between 1880 and 1915 at multi-dimensional ground-laying that permitted the later, classically conceived “civil rights” movement to burst forth when political conditions improved). 272 see supra text accompanying notes 53, 70–74. 273 on woodrow wilson’s racism and its legacy, see, e.g., dick lehr, the racist legacy of woodrow wilson, the atlantic (nov. 27, 2015), https://www.theatlantic.com/ politics/archive/2015/11/wilson-legacy-racism/417549/ [https://perma.cc/kyg2-g6pn]. 274 see supra note 270. 275 see generally benjamin van rooij & adam fine, the behavioral code: the hidden ways the law makes us better . . . or worse (2021) (describing studies about when law does—or, more often, does not—work in directing human behavior). 276 the distinction between law on the books and law in action is a longstanding precept of sociological jurisprudence, pioneered by roscoe pound and others. see generally roscoe pound, law in books and law in action, 44 am. l. rev. 12 (1910) (exploring this distinction). 277 see, e.g., matthew b. lawrence, subordination and separation of powers, 131 yale l. j. 78, 78 (2021) (calling for the application of anti-subordination principles to separation-of-powers questions). 278 on the earliest work of the naacp in developing public impact litigation strategies, see susan carle, race class and legal ethics in the early naacp, 20 law & hist. rev. 97, 106–28 (2002). on the predecessor organizations that first experimented with these strategies, see generally carle, defining the struggle, supra note 64. 2023] reconstruction’s lessons 783 case litigation, should be carefully thought through. the risks of harm from bad results often may outweigh the low probability of positive ones.279 put most bluntly, racial justice advocates in and outside the legal academy should wean themselves from the dual habits of looking to the court for significant progress on racial justice issues and teaching students to venerate the court as a key locus of racial justice progress. relatedly, one may wonder whether the framers’ experiences with hardball politics provide a lesson for the present moment as, for example, when commentators debate whether to use congress’s constitutional powers to reform the structure of the court within the constitutionally prescribed bounds of congress’s authority to do so.280 in periods of deeply clashing perspectives between the branches and with the nation’s future on racial justice (and other deeply important constitutional questions) very much at stake, refraining from hardball politics may turn out to be the province of fools. 2. prosecute violence yet another lesson identified in part iii.b above concerns the importance of the government’s vigorous enforcement of the civil rights laws on the books. as discussed above, one of the lasting gains of reconstruction, replete as it was with horrific resistance through violence, was the creation and enforcement of the civil and criminal provisions of the enforcement acts, which, the evidence suggests, had an impact on reducing hate-based violence. successor statutes exist today.281 the current times obviously call for devoting priority attention and resources to prosecuting hate-based violence. law may not change hearts and minds simply because it exists, but enforcement matters. 3. promote social welfare rights as justice harlan pointed out in his plessy v. ferguson dissent, civil rights and access to goods provided through the so-called “social” realm are not easily divisible categories. today a great deal of theoretical work has been done in theorizing the fundamental right to the core resources needed for human flourishing, including rights to basic sustenance, education, adequate health care, and safe housing. the tentative efforts of reconstruction’s advocates in establishing the freedmen’s bureau represented a first step in this complex history of social welfare legislation 279 for a recent example of this conundrum, see the twitter thread started by matthew stiegler (@matthew stiegler), twitter (may 16, 2022, 10:38 am), https://twitter.com/matthewstiegler/status/1526210583145635841?s=20&t=s_2xsograiu4 4-9fdu6kya [https://perma.cc/3uyn-ltaf], debating a university of virginia law clinic’s pursuit of an important case about awards of public interest attorney’s fees before the court, despite a likely result harmful to public interest lawyers. 280 see, e.g., daniel epps & ganesh sitaraman, the future of supreme court reform, 134 harv. l. rev. f. 398, 402–14 (2021) (outlining some of the leading proposals for structural reform of the supreme court). 281 these provisions, some inherited directly from the reconstruction era and some passed in later eras, include 18 u.s.c. §§ 241, 242, 245, 247, 248, 249, 294. see generally what we investigate: federal civil rights statutes, fbi, https://www.fbi.gov/investigate/ civil-rights/federal-civil-rights-statutes [https://perma.cc/wla8-zf23] (last visited july 24, 2022). 784 colum. j. race & l. [vol. 13:734 in the united states.282 then, the “great society” initiatives of the 1960’s and 1970’s enacted in tandem with federal civil rights legislation pursued these connections more explicitly.283 contemporary legal scholars have continued to explore the constitutional dimensions of federal and state governments’ duties to care for the material welfare of the nation’s inhabitants. in a new birth of freedom, charles black riffs on arguments of the abolitionist constitutionalists to argue that the declaration of independence’s reference to the right to the pursuit of happiness, along with the ninth and fourteenth amendments, provide a basis for finding a fundamental right “to be in a situation where that pursuit has some reasonable . . . chance of moving toward its goal.”284 black insists that the government has an affirmative constitutional duty “to devise and prudently to apply the means necessary to ensure . . . a decent livelihood for all.”285 and, as he presciently states in words on point for this new time, this duty on the part of congress is not one the court must approve or enforce286 (though one might hope the court at least would stop undermining it287). in the united states, social welfare rights have developed in complex legislative, as opposed to constitutional, frameworks. from this perspective, it is not substantive rights but the federal constitutional structure that protects the social welfare dimensions of racial justice and equality more generally. federalism continues to play an important part, as in states’ provision of rights to education and other social welfare supports. but reconstruction-era changes to the constitutional structure with respect to the federal government’s responsibility for civil rights, as discussed above, are important as well. that changed structure establishes that congress has an important role to play where states either will not— or, often, cannot, due to problems of coordination—act to provide the underlying social welfare resources that are necessary to promote civil and political equality among a thriving citizenry.288 today, however, the current court improperly downplays the alterations to the federalist structure the reconstruction amendments wrought.289 when the current court has failed to uphold social welfare 282 see graber, supra note 65 at 1363–66. 283 on these great society initiatives, see generally zelizer, supra note 193, at 85– 130 (2015) (describing the civil rights efforts taken as part of the great society initiative of president lyndon johnson’s administration) 284 charles l. black, a new birth of freedom: human rights, named and unnamed 131 (1999). 285 id. at 133. 286 id. at 138. 287 see, e.g., nat’l fed’n of indep. bus. v. sebelius, 567 u.s. 519, 542, 586 (2012) (striking down congress’s attempt through the affordable care act to cover more poor americans under shared state and federal medicaid funding). 288 see laura f. edwards, a legal history of the civil war and reconstruction: a nation of rights 10, 18 (2015) (presenting the thesis that reconstruction transformed “people’s relationship to the federal government” as they began to look “to the federal government, not just state or local governments, to protect, support, and further their interests.”) see also u.s. const. amend. xiii, § 2; u.s. const. amend. xiv, § 5; u.s. const. amend. xv, § 2. 289 see, e.g., sebelius, 567 u.s. at 533–35 (referring to federalist principles as interpreted by chief justice marshall, years before the reconstruction amendments 2023] reconstruction’s lessons 785 protections, it has often invoked federalism. the roberts court did so, for example, in invalidating the important medicaid extension provisions of the affordable care act.290 the lesson learned involves the importance of attending to the structural aspects of the constitution rather than rights per se. racial justice scholars should oppose the ways in which the court has failed to acknowledge that the enforcement provisions of the reconstruction amendments altered the federalist structure in significant (though still limited) respects. 4. emphasize the fundamental nature of the right to vote as discussed in part iii above, one crucial insight the reconstruction advocates achieved in the second half of reconstruction involved the importance of protecting citizens’ right to vote and otherwise participate meaningfully in political processes. while congress in the end protected voting rights only with respect to discrimination on the basis of race, many of the congressional radicals, including ashley, stevens, and sumner, along with key activists, such as douglass and shadd cary, recognized that the arguments supporting black men’s suffrage logically required granting suffrage to women as well.291 in this change of mindset towards universal suffrage rights, the fifteenth amendment heralded an important change. to be sure, the members of congress fell short of creating a robust positive right to political participation when they decided to prohibit discrimination on the basis of race only, rather than covering property and education restrictions as they had considered doing. nevertheless, the idea that voting is a fundamental right—first understood clearly by the black abolitionists, then by the white radicals, and finally by most congressional republicans as reflected in a limited sense in the fifteenth amendment—was new, important, and potentially transformative. it stands today as an important step in defining a fundamental political right with enormous yet unfulfilled potential. 5. further explore the relationship between law and human psychology at bottom, i have argued, the reconstruction advocates in part failed to achieve their goal of creating foundational law that would further racial equality due to their unwarranted faith in the power of words on changed the federalist structure). chief justice roberts also failed to acknowledge that the reconstruction amendments altered the principle of equal state sovereignty on which he based his rationale for striking down important provisions of the voting rights act in shelby county v. holder, 570 u.s. 529, as discussed supra at text accompanying notes 262–269. at the time of the enactment of the amendments and supporting legislation, congress and the people of course appreciated that federal supervision of states’ grant of voting rights to their citizens would have to be greater in some jurisdictions than others, depending on the history of voter suppression in particular jurisdictions. see supra note 178. 290 sebelius, 567 u.s. at 533–35. 291 see, e.g., jones, supra note 118, at 65 (noting douglass’ support of women’s suffrage); id. at 117 (quoting shadd’s congressional testimony calling for suffrage for black men and women); levine, supra note 129, at 101 (describing stevens’ “democratic radicalism” as including “publicly endorsing the right of women to vote and hold public office”); zietlow, supra note 240, at 13 (noting james mitchell ashley’s support for women’s suffrage); david w. blight, frederick douglass: prophet of freedom 488 (2018) (describing douglass as an “old ally” of the women’s suffrage movement); donald, supra note 34, at 251–52, 577–78 (noting sumner’s support for women’s suffrage). 786 colum. j. race & l. [vol. 13:734 paper, without more, to achieve legal reform. but we cannot fault them for this today because they lacked adequate theoretical tools to help them think through how law could be brought to bear effectively, in the face of resistance, to solve the complex and intractable problem of racism. a century of further intellectual inquiry into the nature of law and connected issues of human psychology provides contemporary racial justice theorists with far greater resources to think about these questions. nevertheless, too little of the enormous brainpower being devoted to racial justice questions in the legal academy goes towards thinking about approaches to law and legal change other than traditional doctrinal analysis. we still know far too little about how and when law can work effectively to eradicate racism (as well as oppression and subordination more generally, as stevens wanted to do), and what kinds of law, in what contexts, work best to those ends. reconstruction’s history teaches that these questions falling outside the realm of traditional doctrinal analysis urgently need attention. most basically, as an empirical matter, what kinds of regulatory strategies work best in reducing racism and in what circumstances? what can—and, more importantly, what can’t—law do as a matter of prescription? what promise do the new ideas of today hold, including ideas arising from 20th century sociological jurisprudence, the legal realist movement, and various interdisciplinary law-and-social-science approaches that grew out of these legal movements? these approaches today include the many strands of “new governance” theory,292 related in turn to “democratic experimentalism,” often characterized as derived from john dewey’s classical pragmatist philosophy, which heavily influenced the american legal realists.293 another example, derived from behavioral economics, is cass sunstein and others’ “nudge” theory, which studies the ways in which human decisionmaking is rife with non-rational behavior and suggests that law sometimes works best when it is not prescriptive but instead “suggestatory,” to coin a 292 a classic collection on new governance theory is law and new governance in the eu and us (gráinne de búrca & joanne scott eds., 2006) [hereinafter law and new governance]. these editors define new governance as “a construct which has been developed to explain a range of processes and practices that have a normative dimension but do not operate primarily or at all through the formal mechanism of traditional commandand-control-type legal institutions. the language of governance rather than government signals a shift away from the monopoly of traditional politico-legal institutions, and implies either the involvement of actors other than classically government actors, or indeed the absence of any traditional framework of government . . . a further characteristic often present in new governance processes is the voluntary or non-binding nature of the norms”). id. at 2, 3. 293 dewey argued that action and ideas must relate to each other, and that any evaluation of ideas must take place in relation to action. see generally susan d. carle, theorizing agency, 52 am. u. l. rev. 307, 354–63 (2005). on the connection between democratic experimentalism and john dewey’s pragmatist philosophy, see, e.g., charles sabel, dewey, democracy, and democratic experimentalism, in democratic experimentalism 35, 37–38 (brian e. butler ed., 2012). on dewey’s influence on legal realism, see generally john henry schlegel, american legal realism and empirical social science (1995) (analyzing various realists’ interpretations and responses to dewey’s philosophy). on what john dewey’s philosophy meant for early twentieth century social reform efforts, see generally carle, john dewey, supra note 259, at 249–50, 255–62. 2023] reconstruction’s lessons 787 term.294 a host of related ideas combine hard and soft law, and public and private law, especially in the realm of international law where prescription often is not an option.295 these ideas have proved useful in domestic legal contexts as well, such as in workplace law, environmental law, and more.296 they may similarly provide promising new directions in the racial justice arena, but need to be prioritized to counterbalance the legal academy’s continued exaltation of court-focused, doctrinal analysis of racial justice issues. yet another important approach taps the now highly sophisticated fields of public relations and marketing analysis, which recognize the importance of “framing” ideas in public consciousness to effectively support law reform campaigns. examples include gay rights activists’ use of public relations techniques in their campaign for marriage equality. in a surprisingly short time, reformers were able to turn public opinion in their favor. activists reframed the issues to focus equality, individual autonomy, and freedom from government intrusion, and substantially erase from mainstream public discourse prejudice against same sex marriage rooted in phobias about social “deviance.”297 with this dramatic shift over less than a decade, gay rights activists built the groundwork for a quite striking achievement—namely, persuading the roberts court to protect same-sex marriage as a constitutional right anchored in the fourteenth amendment.298 so too have activists for low-wage workers in los angeles used sophisticated public relations techniques, as documented in professor scott cummings’ study of these activists’ “comprehensive campaign” strategies.299 racial justice advocates should also turn more attention to interdisciplinary fields seeking to understand the causes of racism in the function of the human brain. science today may be poised to help in generating the theory reconstruction advocates lacked. for example, 294 richard thaler & cass sunstein, nudge: the final edition 18–32 (2021). 295 see generally law & new governance, supra note 292. 296 for a case study of “hybrid” new governance and rights-based approaches to race antidiscrimination law in the european union, see gráinne de búrca, eu race discrimination law: a hybrid model?, in law and new governance, supra note 292, at 97, 118–20; for a case study of the injection of new governance ideas into occupational safety and health law in the united states, see orly lobel, governing occupational safety in the united states, in law and new governance, supra note 292, at 269, 275–87. 297 see david l. trowbridge, engaging hearts and minds: how and why legal organizations use public education, 44 law & soc. inquiry 1196, 1201–14 (2019) (discussing how marriage equality activists used public education strategies in their campaigns); see also scott l. cummings & douglas nejaime, lawyering for marriage equality, 57 ucla l. rev. 1235, 1315–18 (2010) (noting how marriage equality advocates used public relations and education techniques to change the national narrative about gay marriage). 298 obergefell v. hodges, 576 u.s. 644, 664–73 (2015). 299 scott cummings, an equal place 460 (2021). and just as social justice advocates have used these techniques to shape public consciousness and bring about change, so too have business interests, such as uber, used similar campaigns to shape the terms of debate about employment fairness in the gig economy. see, e.g., sarah ellison, when foreign markets resisted, uber launched a media charm offensive, wash. post (july 11, 2022, 12:00 pm), https://www.washingtonpost.com/media/2022/07/11/uber-germany-india-mediacampaigns/ [https://perma.cc/3jf7-2e7l] (describing uber’s “aggressive global influence campaign that was the company’s strategy for powering its way into skeptical local markets around the world”). 788 colum. j. race & l. [vol. 13:734 advances in neuroscience are helping legal scholars understand the brain basis for racism. these discoveries may help the same scholars use their particular expertise in fashioning legal institutions (conceived of much more broadly than simply courts and laws) to develop practices to counter racial exclusion. especially promising along these lines are advances in the subfield of social neuroscience.300 social neuroscience refers to an interdisciplinary field that looks to a wide range of empirical, science-based research to better understand the brain-based dimensions of human social behavior.301 among many other topics, social neuroscience investigates what causes bias in human judgment, including racial prejudice; how bias might be countered with effective interventions; and how law might be used to accomplish these goals. it investigates, for example, what techniques work to mitigate bias in decision-making when applied—as research shows most effective—right before the point of decision.302 might more effective judicial remedies be fashioned for racial discrimination on the basis of this research? might the development of best practices help build into institutional design methods of curtailing implicit bias without resort to courts? could policy articulated in state and federal laws push institutions to adopt such practices through incentives and the creation of safe harbor provisions?303 in the same way that the disparate impact analysis now codified in title vii arose from the social science thinking of the leaders of the national urban league in the 1940s,304 might the social neuroscience of the 2020s lead to creative new approaches for the 21st century? interdisciplinary collaboration along all these lines provides promising routes for developing new insights. but those collaborations require that more legal scholars interested in racial justice devote their attention to these topics rather than remaining fixated on neo-formalist doctrinal analysis of the vagaries of the current court’s rulings in an era in which little help can be expected to come from that direction.305 the court gravely disappointed the cause of civil rights in the wake of reconstruction. it is taking a similar direction now. law-based racial justice advocates would do well to learn from that history and avoid making the same mistake of slipping back into legal formalism in looking to 300 see susan d. carle, acting differently: how science on the social brain can inform antidiscrimination law, 73 u. miami l. rev. 655, 661–70 (2019) [hereinafter carle, acting differently] (exploring the relevance of social neuroscience to antidiscrimination law). 301 see john t. cacioppo & jean decety, an introduction to social neuroscience, in the oxford handbook of social neuroscience 3, 6 (jean decety & john t. cacioppo eds., 2015) (defining the field of social neuroscience). 302 carle, acting differently, supra note 300, at 727–29 (discussing research on effective interventions against bias and group think). 303 see susan sturm, second generation employment discrimination: a structural approach, 101 colum. l. rev. 458, 480–83 (2001) (discussing how federal sexual harassment law creates safe harbor incentives that motivate employers to adopt best practices in stopping workplace sexual harassment). 304 see susan d. carle, a social movement history of title vii disparate impact analysis, 63 florida l. rev. 251, 270-80 (2011). 305 on the revival of formalism in law, see tomas c. grey, the new formalism stan. l. sch., pub. l. & legal series 16–27 (1999). 2023] reconstruction’s lessons 789 doctrinal development as a means of persuading a hostile court to take a different tack. vi. conclusion the aim of this article has been to argue that contemporary advocates focused on law-related strategies for racial justice need to think beyond traditional approaches. reconstruction’s history suggests that advocates need to think beyond courts to experiments with voluntary approaches, best practices guidance, rolling rule regimes, institutional design incentives and much more. they should think about public education campaigns to change public narratives, opinion polling, media campaigns and more. this is not, of course, to say that the racial justice movement is not thinking in this way; advocates very much are doing so. but legal academia could be doing so much more in support of these initiatives if racial justice scholars spent more time thinking about topics other than the court. the problem of racial injustice, though identified and addressed by reconstruction’s advocates almost a century and a half ago, has drastically evaded solution. its persistence is due in part to the lack of sufficient theoretical support reconstruction’s advocates faced as they undertook their enormously ambitious task of using law to counter racism. today it is time to pursue better understandings of the relationship between legal theory, human psychology, and both traditional and less traditional uses of law-related strategies to attain that goal.306 306 an example of a leading scholar who is looking to social science for help in theorizing racial injustice is darren hutchinson. see darren hutchinson, “with all the majesty of the law”: systemic racism, punitive sentiment, and equal protection 110 cal. l. rev. 371, 372–79 (2022). i. introduction ii. reconstruction between 1863 and 1868: lessons learned a. enacting the thirteenth amendment b. land and social welfare c. law’s inefficacy when not supported by the national political will iii. reconstruction after 1868: the fifteenth amendment and the force acts of 1870 and 1871 a. congress’s changed perception b. the enforcement acts iv. reconstruction’s demise v. epilogue & conclusions a. a short epilogue b. conclusions 1. be skeptical about the effect of words on paper alone 2. prosecute violence 3. promote social welfare rights 4. emphasize the fundamental nature of the right to vote 5. further explore the relationship between law and human psychology vi. conclusion columbia journal of race and law vol. 11 july 2021 no. 3 article abolition, settler colonialism, and the persistent threat of indian child welfare theresa rocha beardall, j.d., ph.d.* & frank edwards, ph.d.† family separation is a defining feature of the u.s. government’s policy to forcibly assimilate and dismantle american indian and alaska native (aian) tribal nations. the historical record catalogues the violence of this separation in several ways, including the mass displacement of native children into boarding schools throughout the 19th century and the widespread adoption of native children into non-native homes in the 20th century. this legacy eventually prompted the passage of landmark legislation known as the indian child welfare act of 1978 (icwa). icwa introduced federal protections against the unnecessary removal of native children and affirmed the role of the tribe as an important * theresa rocha beardall is an assistant professor of sociology at the university of washington. her scholarship examines how systems of law and agents of the state enact various modes of state violence, specializing in issues of race, policing, and tribal sovereignty. both authors are incredibly grateful to the organizers and journal editors that convened the strengthened bonds: abolishing the child welfare system and re-envisioning child well-being symposium. this symposium honors the 20th anniversary of professor dorothy roberts’ pathbreaking book, shattered bonds: the color of child welfare, a scholar and advocate that continues to inform their empirical and theoretical work. the authors are indebted to the columbia journal of race and law editorial team for their careful and thoughtful reading of this text. they dedicate this project to the countless native families who were unnecessarily torn apart by the state. their experiences demand recognition and accountability. † frank edwards is an assistant professor of criminal justice at rutgers university – newark. he uses statistical methods to explore the causes and consequences of the social distribution of state violence. the authors thank brian clapier, anita fineday, jack trope, and sheri freemont for their generous read of this article and discussions on how we might all serve tribes and families as they reunify and heal from a concerted legacy of family separation. the authors are solely responsible for all content. 534 colum. j. race & l. [vol. 11:533 partner in child welfare proceedings. to what extent has the federal government honored the commitments of icwa and reversed the trajectory of native family separation since 1978? what can be done to reduce the threat of the current child welfare system on the well-being of native families? in this article, we use administrative and historical data to statistically evaluate the magnitude of change in aian family separation since the passage of icwa and locate the institutional pathways that funnel aian families into the child welfare system. we find that, despite long-standing treaty responsibilities to support the health and well-being of tribal nations, aian children remain at incredibly high risk of family separation. in particular, we find that the frequency of aian children’s placement into foster care has remained relatively stable since the passage of icwa and that the post-investigation removal decision by child welfare agencies is a key mechanism of inequality in family separation. we situate these findings within theories about settler colonialism and indigenous dispossession to illustrate that the continuous removal of native children from their homes is not an anomaly. instead, we argue that the very intent of a white supremacist settler-state is to dismantle native communities. based upon these findings, we argue that the child welfare system in its entirety must be abolished in order to stop the routine surveillance and separation of native and nonwhite children from their families by the state. we suggest that icwa has provided, and will continue to provide, a necessary intervention to protect native families so long as this intrusive system remains. we conclude by envisioning an abolitionist approach that immediately redirects social and financial resources into the hands of native families and works cooperatively with tribal nations to promote indigenous communities of care. 2021] indian child welfare 535 i. introduction ............................................................................. 536 ii. settler colonialism drives family separation ................... 538 a. colonialism, settler colonialism, and indigenous dispossession ............................................................... 538 b. the legacy of american indian family separation . 540 1. the civilization fund act of 1819 ....................... 540 2. the indian removal act of 1830 .......................... 541 3. the general allotment act of 1887...................... 542 c. adoption and the indian child welfare act of 1978 .................................................................... 543 iii. an empirical study of indian child welfare ..................... 546 a. quantifying rates of family separation and system contact ............................................................ 547 b. data and methods ....................................................... 547 c. the historical and contemporary scale of native family separation ....................................................... 550 d. the timing and prevalence of interventions ............ 553 e. the contemporary geography of native family separation .................................................................... 555 f. institutional sites of inequality in the child welfare system ............................................................ 556 iv. why does native family separation persist? ................... 559 a. land, sovereignty, and children ............................... 560 b. the native family as a site of settler regulation ... 562 v. native families and the abolition of child welfare ........... 565 a. existing and ongoing reform .................................... 566 b. thinking with liberation and abolition in the context of child welfare ............................................. 567 c. reimagining indigenous communities of care ........ 569 vi. conclusion ............................................................................. 572 536 colum. j. race & l. [vol. 11:533 i. introduction the enduring effects of the settler-state’s targeted control of non-white families cannot be understated. recent data indicate that about 15% of american indian and alaska native (aian) children and 11% of black children can expect to enter foster care at some point before their 18th birthday, rates that are remarkably higher than white children (5%).1 indeed, the family has long functioned as a site of state regulation. in the case of native peoples, two intertwining conduits of settler colonial violence facilitate this regulation: indigenous land dispossession and the destabilization of native families and tribes. the historical record catalogues this violence in several ways, including the mass displacement of native children into boarding schools throughout the 19th century and the widespread adoption of native children into non-native homes in the 20th century. as a result, the child welfare system represents an early yet potent mechanism to reproduce the intentions of a white supremacist settler-state, namely the desire to displace and erase native and non-white families that resist the settler project. throughout this article, we argue that family separation constitutes a defining and continuing feature of the relationship between the u.s. government and american indian tribal nations. we also underscore how separation reveals the state’s long-standing carceral commitments to surveillance, containment, and the coercive control of native lands, families, and resources. this conclusion is evident in the high and longstanding rates of aian family separation that persist despite treaty responsibilities to support the health and well-being of tribal nations. in 1978, the federal government began addressing this separation crisis by passing the indian child welfare act (icwa)2 and acknowledging tribal jurisdiction over the welfare of native children. these actions, however, did not stop the routine separation of native children from their families because the law was left to operate within a much larger child protection system that prioritizes surveillance and separation over welfare 1 christopher wildeman & natalia emanuel, cumulative risks of foster care placement by age 18 for u.s. children, 2000–2011, 9 plos one 1, 5 (2014), https://journals.plos.org/plosone/article?id=10.1371/journal.pone .0092785 [https://perma.cc/3gm2-lwny]. 2 indian child welfare act, pub. l. no. 95-608, 92 stat. 3069 (1978) (codified at 25 u.s.c. §§ 1901–1963). 2021] indian child welfare 537 and support. the state also failed to implement a systematic way to track when and where native families are pushed into the child welfare system. this lack of transparency created an inability to estimate the prevalence and frequency of family separation over time. it also made it more difficult for tribes and advocates to determine which stages of child welfare case processing are most precarious for aian children, which limits opportunities for increased tribal intervention. in this article, we step into this troubling federal gap and provide new empirical evidence about the enduring legacy of native family separation. we do so within an important national moment of reckoning about the efficacy of the child welfare system, its harmful treatment of minority families, and its undeniable origins in federal policy to assimilate and eradicate native peoples. in part i, we begin by introducing theories about settler colonialism and indigenous dispossession to situate the social and historical context of native family separation. we also catalogue key legal moments that illustrate that the continuous removal of native children from their homes is not an anomaly. instead, we argue that the very intent of a white supremacist settler-state is to dismantle native families and tribal nations and that child removal is key to this goal. in part ii, we use administrative and historical data to isolate and illustrate the institutional pathways that lead aian families into the child welfare system and evaluate the magnitude of change in aian family separation since the passage of the icwa. in part iii, we provide an overview of our empirical findings, examine their social and legal implications for contemporary native family separation, and delineate their connection to the settler colonial context we examine in part i. in part iv, we suggest an abolitionist approach to address the state’s ongoing efforts to dispossess native communities of their children and homelands. in this section, we look to the aian family experience and consider why and how the child welfare system (not icwa) must be reimagined and ultimately abolished to cultivate care and responsibility rather than discipline and punishment. an abolitionist approach requires a clear acknowledgment of the harms committed against a community. in the case of native peoples, this requires a moral reckoning of the state’s allegiance to white supremacy and subsequent attempts to assimilate away the livelihood, values, and kin networks of indigenous peoples. from here, this approach would redirect social and financial 538 colum. j. race & l. [vol. 11:533 resources into the hands of native families and work cooperatively with tribal nations to promote indigenous communities of care, as defined by tribal nations. to this end, we urge lawmakers to transfer federal funds, made available through title iv-e of the social security act, directly to native families who can provide for children in ways that align with their cultural practices and vision for intergenerational healing. ii. settler colonialism drives family separation native family separation is an outcome of u.s. colonialism and settlement, made possible by the state’s longstanding carceral commitments to surveillance, containment, and the coercive control of native lands, families, and resources. three key congressional measures illustrate these commitments via forced assimilation and indigenous land dispossession: the civilization fund act of 1819,3 the indian removal act of 1830,4 and the general allotment act of 1887.5 taken together, these laws demonstrate governmental efforts to break up native lands and families and fundamentally limit tribal sovereignty. this congressional legacy provides critical context to current data on native child removal, linking early histories of settler violence with later assimilationist programs including boarding schools and the adoption of native children into non-native homes. we suggest that this history constitutes the origins of the child welfare system generally and specifically led to native resistance against family separation, most significantly through the indian child welfare act of 1978 which sought to end generations of abuse, mistreatment, and the forcible removal of native children from their homes. a. colonialism, settler colonialism, and indigenous dispossession historically, colonialism is generally understood as an invasion by european powers onto foreign lands in an effort to exploit local resources to the detriment of the first peoples living 3 civilization fund act of 1819, pub. l. no. 15–85, 3 stat. 516b. 4 indian removal act of 1830, pub. l. no. 21–148, 4 stat. 411. 5 dawes act, ch. 119, § 5, 24 stat. 389 (1887) (current version at 25 u.s.c. § 348). 2021] indian child welfare 539 and caring for these homelands.6 to this end, colonialism encompasses an intentional set of political actions and policies designed to control, develop, and extract resources for the gain of the colonial nation-state located elsewhere. settler colonialism is differentiated from colonialism. this social process involves settlers not only occupying and seizing resources for profit, but permanently settling in the territory, thereby displacing inhabitants in order to secure land to build their own homes and communities.7 settler colonialism is also differentiated from colonialism by its guiding philosophy, namely the logic of elimination, which seeks to physically and culturally eradicate local inhabitants8 through violence, coercion, and the implementation of laws, policies, and organizations that fulfill its predatory objectives. the u.s. is a settler-colonial state and early americans eagerly removed native peoples from their homelands, often with the use of force and violence, to establish settlements, commerce, and statehood. settler colonialism embodies a series of social processes, expectations, and organizing principles, all of which affect the lives of both settlers and indigenous peoples. one key outcome for settlers is the creation and manifestation of white supremacy, which is both a narrative of dominance and superiority9 and a structuring process that affects race, space, and place—all of which inform how settlers rationalize their presumptions about entitlements to indigenous lands and bodies.10 whiteness and white supremacy are inherent 6 saskia sassen, a savage sorting of winners and losers: contemporary versions of primitive accumulation, 7 globalizations, 23 (2010). 7 evelyn nakano glenn, settler colonialism as structure: a framework for comparative studies of u.s. race and gender formation, 1 socio. race & ethnicity 52, 55 (2015); alyosha goldstein, the jurisprudence of domestic dependence: colonial possession and adoptive couple v. baby girl, darkmatter, (may 16, 2016), http://www.darkmatter101.org/site/2016/05 /16/the-jurisprudence-of-domestic-dependence/ [https://perma.cc/e84l-kwa3]; margaret d. jacobs, seeing like a settler colonial state, 1 mod. am. hist. 257, 259 (2018). 8 glenn, supra note 7, at 57; patrick wolfe, settler colonialism and the elimination of the native, 8 j. genocide rsch. 387, 388 (2006). 9 dwanna l. mckay et. al., theorizing race and settler colonialism within u.s. sociology, 14 socio. compass 1, 3 (2020). 10 anne bonds & joshua inwood, beyond white privilege: geographies of white supremacy and settler colonialism, 40 progress hum. geography 715, 724 (2016). 540 colum. j. race & l. [vol. 11:533 components of settler colonial structures; in the eyes of settlers, the social inclusion and exclusion of native peoples is incumbent upon their assimilation to the standards of the newly established white society.11 b. the legacy of american indian family separation here, we turn to a historical review of three key congressional interventions that undergird the legacy of family separation and continue to threaten tribal sovereignty. the settler drive towards cultural dominance and land ownership has forcibly displaced tribes, separated them from vital resources including food and water, and prohibited the teaching of native languages and worldviews. in recent decades, some settler tactics of cultural domination shifted in response to changing institutional reforms such as icwa, but as the legislation below shows, the ideological origins are longstanding. despite old and new efforts of erasure by the settler state, the continued, unassimilated existence of native peoples and cultures remains vibrant, innovative, and deeply rooted in indigenous ways of knowing. 1. the civilization fund act of 1819 in 1819, congress passed the civilization fund act for the “purpose of providing against the further decline and final extinction of the indian tribes.”12 the act allocated federal funds “to employ capable persons, of good moral character, to instruct [native peoples] in the mode of agriculture suited to their situation; and for teaching their children in reading, writing and arithmetic.”13 the act also formalized congressional support of christian missionaries who were already working and proselytizing among the tribes.14 together, linking church and state explicitly, congress and the christian missionaries sought to assimilate tribal members into european culture by removing 11 see generally maile arvin, possessing polynesians: the science of settler colonial whiteness in hawai`i and oceania (2019); aileen moreton-robinson, the white possessive: property, power, and indigenous sovereignty (2015). 12 civilization fund act of 1819, pub. l. no. 15–85, 3 stat. 516b. 13 see id. 14 kathleen sands, territory, wilderness, property, and reservation: land and religion in native american supreme court cases, 36 am. indian l. rev. 253, 280 (2012). 2021] indian child welfare 541 their tribal identities and worldviews.15 assimilation efforts came in many forms and the imposition of agricultural education was believed to be one way of pacifying tribal members and instilling a patriarchal social order.16 for example, the missionary schools commonly taught boys husbandry, plowing, and planting, while girls learned housekeeping, spinning, and weaving.17 this gendered educational schema, designed around manual labor, demonstrates how the act was used to create a subordinate service class of persons for white families, composed primarily of native children. colonial paternalism of this kind eventually promoted the construction of off-reservation indian boarding schools, where children could be further alienated from their social and cultural teachings.18 while in boarding schools, children were rarely allowed contact with their family. instead, native children were subject to the demands of christian missionaries who attempted to assimilate them into white culture, often using violence and manipulation.19 the indian boarding schools carried out the u.s. mission of assimilating native children until the last school closed in 1973. 2. the indian removal act of 1830 roughly a decade later, and with a strong push from southern supporters, congress signed the indian removal act of 1830. the act provided president andrew jackson with unrestrained authority to seize native lands and relocate tribal nations west of the mississippi river.20 the intent and effect of the act allowed white settlers to acquire desirable native territory with the direct assistance of their government. indeed, 15 alia wong, the schools that tried—but failed—to make native americans obsolete, atlantic (mar. 5, 2019), https://www.theatlantic.com /education/archive/2019/03/failed-assimilation-native-american-boardingschools/584017/ [https://perma.cc/n95e-fngh]. 16 alyosha goldstein, the ground not given: colonial dispositions of land, race, and hunger, 36 soc. text 83, 87 (2018) [hereinafter goldstein, ground not given]. 17 id. at 88. 18 carlisle indian school was he first off-reservation boarding school founded by captain richard henry pratt in 1879. richard h. pratt, the advantages of mingling indians with whites, 19 soc. welfare f. 1, 45 (1892). 19 theresa rocha beardall, adoptive couple v. baby girl: policing authenticity, implicit racial bias, and continued harm to american indian families, 40 am. indian culture & rsch. j. 119, 126 (2016). 20 indian removal act of 1830, pub. l. no. 21–148, 4 stat. 411. 542 colum. j. race & l. [vol. 11:533 “buttressed by the twin pillars of greed and racism,”21 the act’s settler-colonial design secured native lands and resources to establish homes and communities for white people. while congress and the president were intent on forced removal, chief justice john marshall’s majority opinion in worcester v. georgia22 suggested a different relationship with tribal nations was possible, one in which tribes were afforded territorial rights, congressional representation, and nation-to-nation negotiations under the u.s. constitution.23 under marshall, the supreme court concluded that tribes were “distinct political communities, having territorial boundaries, within which their authority is exclusive.” despite justice marshall’s understanding that tribes were being encroached upon by southern states,24 the u.s. began forcing tribes to sign treaties and move west. most famous to many americans is the trail of tears (1831–1877) that removed many southeastern tribes, such as the cherokee, from their homelands to what is now oklahoma. separating native peoples from their lands through the indian removal act mirrors the eventual removal of native peoples from their tribes and families.25 3. the general allotment act of 1887 the general allotment act of 1887, a federal assimilationist tool commonly referred to as the dawes act, was designed to transform tribal lands into private property. the act granted 160 acres of tribal land to each native head of household and deemed all the remaining tribal lands as surplus.26 the federal government allocated surplus lands to non-native homesteaders, ultimately reducing the already limited acreage of native land by two-thirds.27 unsurprisingly, white settlers were 21 n. bruce duthu, american indians and the law 8 (2008). 22 31 u.s. 515 (1832). 23 tim alan garrison, the legal ideology of removal: the southern judiciary and the sovereignty of native american nations 181 (2009). 24 garrison, supra note 23, at 190; philip p. frickey, marshalling past and present: colonialism, constitutionalism, and interpretation in federal indian law, 107 harv. l. rev. 381 (1993). 25 john p. bowes, american indian removal beyond the removal act, 1 native am. & indigenous stud. 65 (2014). 26 dawes act, ch. 119, § 5, 24 stat. 389 (1887) (current version at 25 u.s.c. § 348). 27 cobell v. babbitt, 91 f. supp. 2d 1, 8 (d.d.c. 1999), aff’d, 240 f.3d 1081 (d.c. cir. 2001). 2021] indian child welfare 543 granted the best allotments and native peoples were often forced onto land that was unsuitable to sustain farming or livestock.28 despite the disparate quality of land, native land was held in a trust by the u.s. government; native peoples were stereotyped as incompetent, and thus vulnerable to unscrupulous whites who wished to buy or lease the land for cheap.29 in addition to a desire for land and resources, legal scholars note that the dawes act also sought to assimilate native americans into the western practice of private land ownership and nuclear family households.30 in effect, the dawes act forced native peoples to cease communal living, with each family being given an allotment of land only to be used by the individual to which it was allotted.31 the dual desire for wealth and assimilation explicitly targeted the dissolution of the cultural bonds and kinship networks that are commonly used in child rearing, limiting the intergenerational transfer of language, traditions, cultural practices, histories, and worldviews to native children. one way to frame the implications of this act is that it constituted a critical phase of cultural and physical separation and set the stage for tribal members to be continuously disconnected from their indigenous worldviews. c. adoption and the indian child welfare act of 1978 native peoples endured, and continue to endure, a systematic genocide at the hands of the federal government. from boarding schools to kidnapping and forced sterilization this violence included physical, sexual, and emotional abuse. particular to the issue of family separation is the concerted use of non-native adoption.32 in 1958, the bureau of indian affairs launched the indian adoption project (iap), a program designed to “rescue” native american children from impoverished native parents and tribes and place them in adoptive homes with white 28 armen h. merjian, an unbroken chain of injustice: the dawes act, native american trusts, and cobell v. salazar, 46 gonz. l. rev. 609 (2011). 29 lauren l. fuller, alaska native claims settlement act: analysis of the protective clauses of the act through a comparison with the dawes act of 1887, 4 am. indian l. rev. 269 (1976). 30 id. 31 see 25 u.s.c. § 348. 32 brianna theobald, “the simplest rules of motherhood”: settler colonialism and the regulation of american indian reproduction, 1910–1976 (may 2015) (ph.d. dissertation, arizona state university) [https://perma.cc/yjs9-znf8]. 544 colum. j. race & l. [vol. 11:533 families.33 the iap was considered to be a cost-effective and permanent solution to “the indian problem,” a term that describes the u.s. government’s frustration with the presence of native americans on the land they desired.34 in effect, the iap sought to sever cultural ties between native children and their tribes and families in order to fully assimilate them into white society. in contrast to the indian boarding schools, the iap cost very little to the taxpayers, as the financial burden of assimilation was placed solely on the children’s adoptive families.35 in 1968, the iap was incorporated into the adoption resource exchange of north america (arena) in order to place even more children outside of their homes.36 these adoptive efforts were disastrously successful. a 1976 report from the association on american indian affairs (aaia) provided grim findings: upwards of 25 to 35% of all native children were being placed in out-of-home care and 85% of those children were placed in non-native homes.37 during the indian child welfare crisis of the 1960s and 1970s, the bureau of indian affairs often portrayed native women as impoverished, unwed mothers who lacked the resources to support their families in order to justify placing their children into foster and adoptive homes.38 for this reason, among others, these shocking aaia data may be a serious undercount of the widespread reality of child removal. the indian child welfare act (icwa) was enacted in 1978 to address the aaia’s findings and end generations of abuse, mistreatment, and forcible removal of native children from their homes. the act clearly states its commitment to protect native families and tribes by preventing the unnecessary removal and displacement of american indian children.39 this 33 margaret d. jacobs, a generation removed: the fostering and adoption of indigenous children in the postwar world 18 (2014) [hereinafter, jacobs, generation removed]. 34 id. at 19. 35 id. 36 id. at 20. 37 cheyañna l. jaffke, judicial indifference: why does the “existing indian family” exception to the indian child welfare act continue to endure?, 38 wash. st. u. l. rev. 127, 130 (2011); rocha beardall, supra note 19, at 126. 38 jacobs, generation removed, supra note 33, at 52. 39 jaffke, supra note 37, at 131; jason r. williams et al., measuring compliance with the indian child welfare act, casey family programs 4 (mar. 2015), https://theacademy.sdsu.edu/wp-content/uploads/2015/06 2021] indian child welfare 545 comprehensive legislation was designed to promote the best interests of native peoples and children by creating minimum federal standards for removal. further, icwa stipulated that when possible, american indian children should be placed with extended family or “foster or adoptive homes that reflect the unique values of indian culture” in the event that child removal was unavoidable.40 unfortunately, some social actors may circumvent protective laws such as icwa by exploiting loopholes that can diminish positive intent.41 state and federal courts, for example, were inconsistent in their interpretation and compliance with the law,42 and in some cases courts drew on the “existing indian family” exception in order to avoid applying icwa altogether.43 the “existing indian family” exception provided state courts the ability to circumvent icwa if the child or parents cannot demonstrate the maintenance of a significant political, social, or cultural relationship with their tribe.44 the federal government responded with new regulations in 2016 to address these profound compliance problems. notably, these new regulations include more explicit requirements around active efforts to engage tribes, limitations on good cause to refuse transfer to tribal courts, limitations to deviations from placement preferences, and make clear that the “existing indian family” is not a requirement.45 /measuring-compliance-icwa-brief.pdf [https://perma.cc/w3ll-v2sb]; rocha beardall, supra note 19; lydia killos et al., strategies for successfully recruiting and retaining preferred-placement foster homes for american indian children: maintaining culture and compliance with the indian child welfare act, casey family programs 4 (mar. 2017), https://www.casey.org/media/icwarecruitment-retention.pdf [https://perma.cc/9sff-t5e7]. 40 indian child welfare act, pub. l. no. 95-608, 92 stat. 3069 (1978) (codified at 25 u.s.c. §§ 1901–1963); generation removed, supra note 33, at 3; williams et al., supra note 39. 41 mathew l. m. fletcher & wenona t. singel, indian children and the federal-tribal trust relationship, 95 neb. l. rev. 885, 888 (2016). 42 williams et al., supra note 39, at 6; killos et al., supra note 39, at 4. 43 jaffke, supra note 37, at 129. 44 id. at 136. 45 indian child welfare act proceedings, 81 fed. reg. 38,779, 38,801 (june 14, 2016). 546 colum. j. race & l. [vol. 11:533 iii. an empirical study of indian child welfare despite substantial efforts to address the ongoing crisis of native family separation,46 american indian and alaska native (aian) children in the u.s. are still more likely to be separated from their parents and placed into foster care than children from any other racial or ethnic group.47 with a sense of the social and historical context, and the settler-state’s longstanding carceral commitments to surveillance, containment, and the coercive control of native lands, families, and resources, we turn to our empirical study of native family separation. we use administrative and historical data to isolate and illustrate the institutional pathways that lead aian families into the child welfare system, evaluate the magnitude of change in aian family separation since the passage of the indian child welfare act (1978), and situate the child welfare system in the context of ongoing white-settler colonization. we estimate age-specific and lifetime risks of experiencing a child welfare system event for native and non-native children, drawing attention to the timing and geographic distribution of these risks. our research is motivated by a persistent concern that icwa’s expressed intentions, and desperately needed protections, may in fact be stymied by larger social forces. namely, in contexts of structural inequality and institutional racism,48 we are concerned that white supremacist desires to displace and erase native peoples persist in bureaucratic structures such as the national child welfare system. given the size and influence of this system, and its predatory history among non-white families, the jurisdictional powers and placement preferences of icwa alone are unlikely to eliminate the inequalities that drive native family separation. 46 thomas l. crofoot & marian s. harris, an indian child welfare perspective on disproportionality in child welfare, 34 child. & youth serv. r. 1667 (2012). 47 youngmin yi et al., cumulative prevalence of confirmed maltreatment and foster care placement for us children by race/ethnicity, 2011–2016, 110 am. j. pub. health 704 (2020). 48 alan j. dettlaff & reiko boyd, racial disproportionality and disparities in the child welfare system: why do they exist, and what can be done to address them?, 692 annals am. acad. pol. & soc. sci. 253 (2020). 2021] indian child welfare 547 a. quantifying rates of family separation and system contact we estimate age-specific and lifetime risks of experiencing a series of child welfare system events for native and non-native children, then evaluate how likely cases are to move “up” the chain of more serious outcomes, conditional on experiencing a lower-level outcome. in doing so, we provide evidence that inequalities in child welfare system outcomes for aian children emerge at distinct stages of life and distinct phases of child welfare system case processing. we evaluate the following child welfare system outcomes: (1) investigations, (2) confirmed maltreatment cases, (3) foster care removals, (4) placement with non-kin and non-aian foster caretakers, and (5) termination of parental rights. b. data and methods we use three primary forms of data to chart aian family contact with child welfare systems. first, we rely on data compiled by the association on american indian affairs (aaia) to document the breadth and depth of american indian family separation through a series of surveys in the 1970s.49 these data formed a critical portion of the evidence presented by aaia in support of the passage of icwa and have become the most widely cited set of statistics on the crisis of indian family separation in the years preceding the passage of icwa. second, we use data from the national child abuse and neglect data system50 (ncands) child file for 2014–2018. ncands is collected by the u.s. administration for children and families and documents all children who were the subject of a screened-in child welfare investigation. lastly, we use the adoption and foster care analysis and reporting system51 (afcars), a federal data 49 hearing to establish standards for the placement of indian children in foster or adoptive homes, to prevent the breakup of indian families, and for other purposes: hearing on s. 1214 before the s. select comm. on indian affs., 95th cong. 537–597 (1977) [hereinafter hearing to establish standards]. 50 children’s bureau, administration on children, youth and families, administration for children and families, u. s. department of health and human services. national child abuse and neglect data system (ncands), child file [dataset] national data archive on child abuse and neglect (2019), https://www.ndacan.acf.hhs.gov/datasets/datasets-list-ncandschild-file.cfm. 51 national data archive on child abuse and neglect, u.s. dep’t health & hum. serv., admin. for child. & fam., adoption and foster 548 colum. j. race & l. [vol. 11:533 system that tracks all children in foster care or placed in statesponsored adoption in the u.s., to chart the scale of native family separation between 2014–2019. throughout the 1960s and 1970s, the aaia collected data on the number of native children that had been separated from their families through a variety of state and non-state institutions. in table 1, we provide a summary of the aaia data on the scale of child removal in the foster care and adoption systems in 13 states (in the early to mid 1970s),52 as well as data on contemporary caseloads in those same states (from the 2019 afcars). to compare the scope of aian family separation in the 1970s and today, we compare point-in-time caseloads for the 13 states with complete data and proportional changes in these caseloads. a point-in-time caseload counts all children in a given system on a single date of the year. aaia collected point-in-time caseloads for foster care and adoption for each of the surveyed states in the 1970s. using afcars foster care files, we can identify the numbers of native and non-native children in foster care for each state and year on the final day of the annual reporting period. afcars adoption files only include new adoptions in each year’s submission. to obtain a point-in-time estimate that is comparable to aaia’s count of children in adoptive households 21 years of age or younger, we aggregate data from 2010–2019, count all aian children adopted during this time period, then remove from the count those children who would be over 21 years of age in 2019. typically, we would prefer to compare the incidence of foster care through a comparison of per capita rates. however, changes in the composition of the aian population between 1976 and 2019 make such comparisons impractical. the magnitude of care analysis and reporting system (afcars), foster care file [dataset] (2019), https://www.ndacan.acf.hhs.gov/datasets/datasets-list-afcars-fostercare.cfm [https://perma.cc/lyu5-mecm]. 52 the aaia focused survey efforts on states with large aian populations. these 13 states with complete data on adoption and foster care are alaska, arizona, california, michigan, minnesota, montana, north dakota, oklahoma, oregon, south dakota, utah, washington, and wisconsin. 6 states did not report complete data on adoption, but did report complete data on foster care. these states were idaho, maine, nevada, new mexico, new york, and wyoming. the timing of responses to aaia’s agency surveys varied between 1972 and 1976 in these data, but consistently report foster care caseloads as point-in-time estimates of children in out-of-home foster care. they are comparable to contemporary point-in-time caseload counts from afcars. 2021] indian child welfare 549 change in the aian child population between 1976 and 2019 (243% growth) cannot be explained by population processes alone. shifting practices of self-identification and census data collection dramatically changed the scope of the aian population enumerated in the census in decades following the 1960s.53 in 1980, for example, the census began asking respondents to selfidentify their race, rather than relying on census enumerator classifications. coupled with an increase in american indians and alaska native peoples self-identifying as native, there were dramatic increases in the enumerated native population in the united states between 1970 and today. because the population identified as aian in the 1970 census is qualitatively different from the population identified in later censuses,54 direct population-based comparisons are inappropriate. we summarize the counts of cases and population figures from 1976 and 2019 in table 1. population data are used to compute rates of exposure across groups for the contemporary child welfare system data (2014–2018). we rely on data from the u.s. census population estimates program (pep). we use state-level estimates of all individuals identified as aian alone or aian in combination with any other group by age to measure the size of the aian population.55 using afcars, ncands and census population data, we compute 2014–2018 period life tables to estimate age-specific and lifetime risks (by age 18) of experiencing a range of child welfare system outcomes for aian children.56 this period life table approach simulates a cohort life table by making two key assumptions: (1) the age-specific population distribution observed between 2014–2018 will remain constant, and (2) the age specific rates of first event incidence observed between 2014– 2018 will remain constant. while these assumptions are likely 53 joane nagel, american indian ethnic renewal: politics and the resurgence of identity, 60 am. soc. rev. 947, 950–53 (1995). 54 jeffrey s. passel, the growing american indian population, 19601990: beyond demography, 16 pop. rsch. & pol. rev. 11 (1997). 55 u.s. census bureau, annual county resident population estimates by age, sex, race, and hispanic origin: april 1, 2010 to july 1, 2019 (2019), https://www2.census.gov/programs-surveys/popest/datasets/20102019/counties/asrh/cc-est2019-alldata.csv. 56 samel h. preston, patrick heuveline, & michel guillot, demography: measuring and modeling population processes (2001). 550 colum. j. race & l. [vol. 11:533 not realistic—since demographic, policy, and social changes are likely to change both population distributions and event incidence rates—we proceed in this manner in order to simulate lifetime risk of experiencing key child welfare system outcomes. while they provide valuable insight into contemporary rates of contact, caution should be used in interpreting these results to project future rates of contact. c. the historical and contemporary scale of native family separation icwa initiated a dramatic series of changes in the jurisdiction and administration of u.s. child welfare systems. as discussed, the law was intended to address and ameliorate the crisis of family separation in indian country. despite these efforts, however, native children and families remain at higher risk of separation than any other group in the united states.57 table 1 displays the change in the counts of native children in foster care or adoption as documented by aaia’s mid-1970s surveys and by afcars in 2019. these caseload numbers are point-in-time counts of the number of children in either foster care or adoption. in 1976, aaia found that about 5,687 aian children were in foster care in the 13 states for which they collected or estimated complete data (6,665 in the 19 states where some data were missing). in 2019, there were 17,241 aian children in foster care in these 13 states,58 more than three times higher than the number in foster care in 1976. for comparison, there were about 53,364 non-native children in foster care in these states, compared to about 109,374 in 2019, about double the total number of children. the foster care system has expanded dramatically for all children in the forty years since the passage of icwa, but far more so for native children than for non-native children. in the mid-1970s, aaia estimated that 11,157 native children were in state-involved adoptions, compared to 172,684 non-native children in the 13 states for which they were able to compile complete data. in 2019, we estimate that there were 57 yi et al., supra note 47, at 704. 58 these are point-in-time caseloads. afcars estimates count children in foster care at the end of the annual reporting period, though more children may have entered and/or exited care than these point-in-time estimates describe. 2021] indian child welfare 551 19,221 native children in state-involved adoptions (an increase of 72%) compared to 161,318 non-native children in stateinvolved adoptions (a decline of 7%). while rates of non-native adoption have slightly declined in these states since the 1970s, rates of native adoption have increased substantially.59 additionally, native family separation has a distinctive geography. during advocacy for icwa, aaia researchers identified maine, minnesota, and south dakota as having among the most inequitable foster care systems in the country.60 inequalities in these state systems persist to this day. to evaluate the magnitude of change in state foster care and adoption systems since the passage of icwa, we display the growth in the numbers of native children in foster care or adoption for those states for which we have historical data in figure 1. some states have seen modest declines in aian foster care caseloads over time. idaho has seen the steepest decline. 83% fewer native children were in foster care in 2019 than were in foster care in 1976. maine, new mexico, utah, and wyoming have also seen caseload declines since the passage of icwa. however, most of these states have seen substantial increases in the numbers of native children in foster care. nearly nine times more american indian children were in foster care in oklahoma in 2019 than were in foster care in 1976. california saw more than 400% growth in the native foster care population over this period, and many other states saw caseloads more than double. 59 note that for both foster care and adoption statistics, aaia estimates from 1976 likely understate the true number of aian children affected by these systems. some states records did not record whether a child was native, and it is likely that true numbers of family separation in 1976 for aian families was higher than those reported. as with census population estimates, cultural practices of self-identification as american indian/alaska native make crosstime comparisons difficult. 60 hearing to establish standards, supra note 49, at 538. 552 colum. j. race & l. [vol. 11:533 table 1. children in foster care and u.s. census child population 21 year and under, 19 select states, 1976 and 2018. group period foster care (percent change) adoption (percent change) aian 1970s 5687 11,157 2019 17,241 (+203%) 19,221 (+72%) nonaian 1970s 55364 172,684 2019 109,374 (+98%) 161,318 (–7%) state-involved adoptions of aian children have also increased in most of these states since the passage of icwa. while 5 states saw a reduction in the numbers of aian children in adoption between 1976 and 2019 (wisconsin, michigan, utah, minnesota, and south dakota), 7 saw increases in the number of aian children in state-sponsored adoptions. oklahoma saw the steepest increase, with about 5 times more indian children in state-sponsored adoptions in 2019 than there were in 1976. in the 13 states that had complete adoption and foster care data in the aaia data collection, there were 16,884 aian children in either adoption or foster care, compared to 36,462 aian children in adoption or foster care in 2019. however, these numbers exclude children who were living in off-reservation bureau of indian affairs boarding schools. in the 1970s, there were about 26,000 aian children in bia boarding schools in 1974.61 inclusive of boarding schools, the magnitude of statesponsored native family separation has decreased since the passage of icwa. however, the magnitude of native family separation through the child welfare system has substantially increased since the passage of icwa. 61 id. at 603. 2021] indian child welfare 553 figure 1. children in foster care and adoption, select states 1976 and 2019 d. the timing and prevalence of interventions across all groups, infants are most likely to be subjected to investigation and separation through the child welfare system. figure 2 uses data from the 2014–2018 afcars and ncands to display the age-specific risks of experiencing four child welfare events for the first time in a child’s life: cps investigation; substantiation or confirmation of a cps case; removal into foster care; and termination of parental rights. risks for all outcomes are highest for infants. mothers with prior history of cps contact, and mothers subjected to high levels of surveillance while pregnant and during birth, are routinely subjected to intrusive investigations and family separations.62 62 dorothy roberts, punishing drug addicts who have babies: women of color, equality, and the right of privacy, 104 harv. l. rev. 1419 (1991); kelley fong, getting eyes in the home: child protective services investigations and state surveillance of family life, 85 am. soc. rev. 610 (2020). 554 colum. j. race & l. [vol. 11:533 figure 2. probability of child welfare event incidence for aian children by age 18, 2014–2018 risk levels, us totals over the life course, and at the national level, at risk levels observed between 2014–2018, we find that 26% of aian children are ever investigated by a child welfare agency, 11% ever have an allegation of abuse or neglect confirmed by a child welfare agency, 8% ever are removed from their families and placed into foster care, and about 1.2% ever have their parents’ rights terminated through the child welfare system. for white children, by contrast, about 35% are ever investigated by a child welfare agency, 11% ever have a substantiated case, 5% are ever removed into foster care, and 0.8% ever have their parents’ rights terminated.63 63 note that these lifetime incidence rates for aian children differ from the author’s prior published estimates. this difference is a function of the different population data used for computing risks. this study uses adjusted 2021] indian child welfare 555 at the national level, aian children are 31% less likely than white children to ever be investigated by cps, as likely as white children to ever have an agency-confirmed case of child abuse or neglect, 60% more likely than white children to ever enter foster care, and 46% more likely than white children to ever have their parents’ rights terminated. however, these national averages obscure geographic variation in inequality risk. e. the contemporary geography of native family separation as shown in the lower-left panel of figure 3, there are 20 states where aian children are more likely than white children to enter foster care. in minnesota, for example, aian children are 8.3 times more likely than white children to ever be separated from their families and placed into foster care. we estimate that about 44% of aian children in minnesota will experience this form of family separation before the age of 18. aian children are more than twice as likely as white children to enter foster care in 10 states: minnesota (8.3 rate ratio, 44% lifetime risk); south dakota (7.0 rate ratio, 21% lifetime risk; north dakota (4.3 rate ratio, 25% lifetime risk); alaska (4.1 rate ratio, 23% lifetime risk); wisconsin (3.8 rate ratio, 19% lifetime risk); nebraska (2.8 rate ratio, 19% lifetime risk); montana (2.8 rate ratio, 28% lifetime risk); washington (2.4 rate ratio, 15% lifetime risk); oklahoma (2.4 rate ratio, 17% lifetime risk); and iowa (2.0 rate ratio, 22% lifetime risk). aian alone or in combination data from the census pep, while most prior estimates (see, e.g., yi et al., supra note 47) use data from nih seer bridgedrace population estimates. this approach is described in section ii.b, supra. 556 colum. j. race & l. [vol. 11:533 figure 3. inequality in lifetime risk of experiencing child welfare system events. cumulative risk computed using 2014–2018 period life tables. note missing investigations data in pa and ga. states with high levels of foster care inequality for aian families also tend to have high levels of inequality in rates of investigation of aian families, the substantiation of investigations of aian families, and the termination of aian parents’ rights. this geographic clustering shows the intensity of the involvement of the child welfare system. the mechanisms of inequality and rates of exposure for aian children are complex. f. institutional sites of inequality in the child welfare system the production of a child welfare case begins with the surveillance of families64 by mandated reporters of child maltreatment (primarily police, educators, and medical professionals)65 and by family and community members. if participants in this diffuse surveillance network make an affirmative decision to report a child or family to a state or local child protection agency, that agency then makes a screening 64 fong, supra note 62. 65 frank edwards, family surveillance: police and the reporting of child abuse and neglect, 5 russell sage found. j. soc. sci. 50, 52–53 (2019). 2021] indian child welfare 557 decision about whether to dispatch an investigator to evaluate the child and family. after the worker’s investigation, the agency decides whether allegations of maltreatment could be confirmed or substantiated. at any point after an investigator initiates contact with a family, they can recommend that a child be removed from their family into foster care, subject to the oversight and approval of a family court. if an agency decides that reunification with their family is not in the best interests of the child, or certain timelines specified by federal law66 have passed, the agency will often proceed with efforts to formally sever the legal relationship between a child and their family caretakers. below, we evaluate the likelihood that children transition from an earlier stage of case processing to a later stage of case processing. we ask, for example: among those children investigated by a child welfare agency, how many had at least one confirmed allegation of abuse or neglect? we conduct this analysis separately for white and aian children to reveal the stages in case processing during which inequalities for aian children emerge. we evaluate four decision points that are observable by joining the ncands and afcars data at the child-level: (1) substantiation after investigation; (2) foster care placement after investigation; (3) foster care placement after substantiation; and (4) termination after foster care. note that children can be removed from their families into foster care without an agency substantiating a case of child maltreatment. figure 4 displays these conditional probabilities for both aian and white children. 66 for example, the adoption and safe families act of 1997 specifies that states should proceed with termination of parental rights after a child has been in foster care for 15 of the prior 22 months. adoption and safe families act of 1997, pub. l. no. 105-89. 558 colum. j. race & l. [vol. 11:533 figure 4. age-specific risk of child welfare system event, conditional on prior system event at 2014–2018 levels of risk at nearly all ages, aian children are more likely than white children to have a case substantiated if they are investigated. at all ages, aian children are more likely to enter foster care than white children if they are investigated. around 27% of aian infants who are investigated are placed into foster care nationally, compared to around 15% of white infants. around 55% of aian infants that are the subject of a substantiated maltreatment allegation are removed into foster care, compared to about 37% of white children. nationally, aian children in foster care are less likely than white children in foster care to see their parental rights terminated at nearly all ages. but higher levels of foster care placement do result in higher overall rates of termination of parental rights (tpr) for aian children than white children.67 67 christopher wildeman et al., the cumulative prevalence of termination of parental rights for u.s. children, 2000–2016, 25 child maltreatment 32 (2020). 2021] indian child welfare 559 conditional on contact with the child welfare system, aian children are far more likely than their white peers to be removed from their families and placed into foster care.68 while differential surveillance may explain some variation in removal, the removal decision itself, based on recommendations from child protection social workers and decisions by family court judges, explains a substantial proportion of the inequality in overall exposure to family separation through foster care for aian children. iv. why does native family separation persist? we find that the crisis of native family separation is ongoing. despite the intent and breadth of the indian child welfare act, many jurisdictions have failed to fully implement its provisions and aian children remain far more likely than their non-native peers to be removed from their families by the state.69 with the closing of the boarding schools, there are now fewer total aian children in state custody than there were in the mid1970s. however, there are dramatically more aian children in foster care and adoptive homes in the states for which we have complete data than there were in the 1970s. this transformation in social context, and to some extent a lack of public awareness about this shift, likely shapes how and why the rates of child separation among native families remain disproportionately high. overall, our analyses strongly suggest that postinvestigation decision making by child welfare agencies plays a crucial role in this crisis. agencies are more likely to substantiate maltreatment of native children once investigated, and more likely to separate them from their family conditional on initial contact. as a result, contact with the child welfare system prompts a crisis for native families. even with the necessary protections of icwa, once aian families are the subject of child welfare system investigations, their children are far more likely to be removed from the home than non-native children. to this point—and within the context of deep austerity, expansive surveillance, assaults on tribal sovereignty, and the ongoing 68 id. at 35. 69 note that current federal data systems do not track a child’s tribal affiliation or icwa eligibility. american indian/alaska native is included as a racial category in current versions of afcars. 560 colum. j. race & l. [vol. 11:533 failure to honor treaty obligations—the affirmative protections and active efforts of the indian child welfare act cannot end the crisis of native family separation alone. for example, so long as the state fails to remedy the economic and social inequalities that drive referrals to the child welfare system, and continues to deem family separation an appropriate intervention when families are in need of care and resources, this crisis will persist. in the u.s., child welfare systems are broadly tasked with addressing poverty-related family crises—including eviction and housing precarity, routine contact with law enforcement, and a lack of critically needed medical and mental health resources. in the absence of a meaningful welfare state, family separation has become a central intervention to respond to child poverty, deepening already existing inequalities in the family separation crisis.70 set within this larger context, critically needed icwa protections rightfully fight to keep families together. what these protections cannot do is directly impact the scope of state surveillance over native children and provide resources to uplift and support native children and families absent separation into the foster care system. it is likely the case that so long as state child welfare systems prioritize family regulation over care these inequalities will persist. a. land, sovereignty, and children as previously described, the founding of the u.s. was predicated upon a desire to erase native peoples and their reciprocal relationships to one another and their homelands. to realize these goals, settlers forcibly enacted geographic displacement, separated tribes from vital resources, and prohibited the teaching of native languages and worldviews. given the current and ongoing struggles between tribes and the federal government, including legal battles for jurisdiction over children and land, we suggest that these historical logics of elimination and dispossession persist and must be taken seriously in ongoing research. treaties signed between early americans and native peoples outlined federal responsibilities for native health, safety, and well-being. unfortunately, the continued violations of these binding legal agreements left a trail of broken treaties—and 70 dettlaff & boyd, supra note 48. 2021] indian child welfare 561 subsequently broken families—across the nation.71 as the spatial control of native land solidified, and the material and symbolic function of the westward frontier waned, the fictive notion of the frontier was transferred to the control of the native body. this is not to say that the control of native lands and bodies was not already taking place simultaneously. but rather, we mark here a particular shift that manifested in a variety of ways, namely in assimilationist projects and the removal of native children from their homes. like the concept of terra nullius, or “nobody’s land,” we assert that the nation’s child welfare system demands and creates the continuous “discovery” and claiming/taking of native children as filius nullius or “nobody’s child.”72 more specifically, we suggest that once physical removal was deemed successful, settlers turned toward the surveillance and management of the native family as a site of social and cultural control. this nexus of land and body critically illustrates the coercive power of the state to harm native peoples73 as well as all other communities that reject colonial intrusion into family well-being. the dual and dehumanizing framework of “nobody’s land” and “nobody’s child” involves forced dependence and ultimately diminishes tribal sovereignty as a central goal.74 similar to the idea that a vast, untapped land was in need of stewardship and privatization, the concept of a child without a parent or a child without kin rationalizes settler-logics of discovery. that is, when the settler-state’s reliance on cultural assumptions about the appropriateness of a nuclear family steeped in white, middleclass values is not visible, settler assumptions suggest that children have been abandoned, live without care and intention, and need rescue and stewardship, much like the native lands from which the children were taken. through this lens, native kinship is seen as antithetical to settler family norms. using slippery settler logics as validation, a community that is framed as incapable of appropriately rearing a child is also framed as incapable of producing land and community governance schemas that warrant respect as sovereigns. to undermine tribal sovereignty—which in effect reduces threats against settler 71 fletcher & singel, supra note 41. 72 goldstein, ground not given, supra note 16, at 88. 73 frederick j. turner, the significance of the frontier in american history, annual report of the am. hist. ass’n for the year 1893, 199 (1893). 74 goldstein, ground not given, supra note 16, at 88. 562 colum. j. race & l. [vol. 11:533 claims on lands, resources, and children—there is an incentive for the state to continuously “discover” native children in need of rescue. that is, to diminish the power and futurity of tribal sovereignty, the state manufactures and then rediscovers native family members made vulnerable by the state, continuing the genocidal practices of removal discussed in part i. b. the native family as a site of settler regulation despite systematic efforts to the contrary, native families and communities continue to cultivate their relationships and responsibilities to indigenous lands, waters, and non-human relations. as with any cultural community, the ability to pass on this knowledge to one’s children is paramount to ensure cultural continuity and social cohesion. in native families, children are also the key to ensuring that tribal communities can continue to exist as independent nations capable of exercising their tribal sovereignty. unsurprisingly then, settler efforts to control native lands and bodies highlight the family unit as a key site of settler regulation. legal scholars bethany berger, addie rolnick, and kim pearson each explain that the practice of separating native families—by way of child removal specifically—emerges from settler logics about land as well as racist logics about belonging, worthiness, and the family. rolnick and pearson unravel these racialized logics and suggest that: for, although indians are not identically situated to other racial minority groups, the harm that icwa was designed to counteract was a racial harm in the sense that the work of severing native children from tribal communities was part of an effort to eradicate those communities (defined by law and social practice as racially inferior) by absorbing them via interracial marriage and cultural reprogramming.75 armed with destructive racial logics informed by white supremacy, the settler-state has long regulated native families to assist in its control of native land, water, and resource rights. 75 addie c. rolnick & kim pearson, racial anxieties in adoption: reflections on adoptive couple, white parenthood, and constitutional challenges to icwa, 4 mich. st. l. rev. 727, 732 (2017); bethany r. berger, in the name of the child: race, gender, and economics in adoptive couple v. baby girl, 67 fla. l. rev. 295 (2016). 2021] indian child welfare 563 parallel to attacks against anti-discrimination legislation, the state has also used racist logics to devalue the political import of indigeneity. anti-icwa organizations and supporters, for example, use these racist logics to devalue the political and sociocultural orientation of indigenous peoples and instead attack icwa provisions as race-based and exclusionary. this harmful and inaccurate framing erases the political status of native children and knowingly reduces a tribe’s efforts to protect their community’s children in the short term, and in the long term diminishes the strength and viability of tribal sovereignty. these anti-icwa intentions and outcomes in and of themselves are settler colonial. scholarship on native family regulation resonates with legal scholar dorothy robert’s identification of the racist logics of u.s. child welfare systems. following demands for black inclusion in access to welfare policy systems in the early to mid20th century, public child welfare systems became more intensely focused on surveillance, regulation, stigmatization, and removal76—an approach that disrupts and subordinates families. roberts explains that black motherhood has been systematically devalued and denigrated,77 while black children have been constructed as uniquely threatening and unworthy of the privileges of a nurturing childhood by white policy institutions.78 black mothers have been portrayed by policy makers as irresponsible, presenting imminent harms to both their own children and to the nation.79 for black and native mothers alike, there is an invested interest in presenting them as inherently dangerous and deficient relative to white families. this framing allows child removal to become naturalized as a desirable and logical intervention. taken together, these experiences demonstrate the state’s willingness to intervene into black and native family life. this is the case despite our understanding 76 michaela christy simmons, becoming wards of the state: race, crime, and childhood in the struggle for foster care integration, 1920s to 1960s, 85 am. soc. rev. 199 (2020) 77 dorothy roberts, shattered bonds: the color of child welfare 65 (2002) [hereinafter roberts, shattered bonds] (“modern social pundits have held black mothers responsible for the disintegration of the black family”). 78 simmons, supra note 76, at 216 (“scholars have found that black children are often ‘denied the developmental reality’ of childhood that undergird protective policy and institutions”). 79 roberts, shattered bonds, supra note 77. 564 colum. j. race & l. [vol. 11:533 that, “[i]n a liberal-democratic society that respects individual rights and highly values the family and its autonomy, child removal is one of the gravest and most intrusive actions that government can take.”80 these patterned actions against minority communities must not be taken lightly. the manifestation of settler and racist logics in the surveillance of family life have myriad material implications for the health and safety of native peoples. for example, native families have been marginalized and managed by economic dispossession, control of native women’s bodies and reproduction, and the intrusion of white women and mothers into the socialization of native children. each of these elements of social control sought to collectively address the nation’s continued investment in managing the “indian problem.”81 in some cases, economic troubles placed native parents and families in impossible and impoverished situations where their only access to critical resources would be in the hands of the government.82 seemingly benevolent policies traumatized native families while improving settlers’ likelihood of securing greater control of native lands and resources.83 efforts to secure native lands have also been linked with the regulation of native women’s biological reproduction through the promotion of 80 leroy h. pelton, separating coercion from provision in child welfare: preventive supports should be accessible without conditions attached, 51 child abuse & neglect 427, 427 (2016). 81 the “indian problem” refers to the problem that settlers had with the existence of native peoples on land that settlers wanted to create their own homes and societies. 82 jacobs, generation removed, supra note 33, at 136. 83 margaret d. jacobs, white mother to a dark race: settler colonialism, maternalism, and the removal of indigenous children in the american west and australia, 1880-1940, xxx (2009) [hereinafter jacobs, white mother to a dark race] (“australia’s ‘protection’ policies and the u.s. government’s ‘assimilation’ program, each of which included [i]ndigenous child removal as a key element, have often been characterized as more enlightened approaches, or at least well-intentioned if misguided efforts, that broke with earlier and more brutal methods of colonization. however, these policies shared the same fundamental goal of earlier strategies—that of dispossessing [i]ndigenous people of their land—and aimed to complete the colonization of the american west and australia by breaking the affective bonds that tied [i]ndigenous children to their kin, community, culture, and homelands.”). 2021] indian child welfare 565 hospital births over midwives, gendered policing of venereal disease, birth control, abortion, and sterilization.84 in addition to policy addressing land and bodies, white women played a critical role in securing the native family as a site of settler regulation. white women constructed a comparative and gendered motherhood binary, where native women were portrayed as deficient and ill-equipped to raise their own children based upon harmful, racist stereotypes about native “barbarity.”85 in contrast, white women were situated as ideal caretakers and mother figures for native children, a position that many white women were eager to take on.86 in this way, white mothers and families were framed as liberal, caring, and “beyond race,” willing to sacrifice any negativity they might receive from other white people as a result of welcoming nonwhite children into their home.87 these intentions, and their attachment to a domesticity and mothering framed as unreachable by native mothers, mirror how “the violent displacement of indigenous nations and the calculated expansion of the u.s. imperial nation-state remained likewise perpetually entangled with more intimate forms of possession and extermination.”88 these interdependent connections between the nation and the home suggest a further need to reevaluate the continued reliance on state systems for native child well-being and call into question any presumptions that indigenous genocide is anything but ongoing. v. native families and the abolition of child welfare in this concluding section, we emphasize that routine and persistent intrusions in native families and tribes are rooted in 84 theobald, supra note 32, at 6 (“native women’s reproductive practices had long been a source of fascination for euro-american colonizers, who used their perception of indigenous reproduction to serve a number of purposes”). 85 jacobs, white mother to a dark race, supra note 83, at 42 (“colonial officials’ rhetoric of rescuing and providing opportunity to [i]ndigenous children depended on harshly stigmatizing [i]ndigenous communities and families”). 86 id. at 281–282 (“[t]he state became a legal or fictive guardian to the children, and then subcontracted many of its guardianship responsibilities— providing protection, education, discipline and punishment, affection and emotional support—to white women”). 87 goldstein, ground not given, supra note 16. 88 id. 566 colum. j. race & l. [vol. 11:533 the settler-state’s longstanding investment in white supremacy. settler desires to displace and erase are not gone but have manifested in a variety of institutional practices and policies that affect the health and safety of native children and homes. before transitioning into a summary of how our findings and framing might contribute to the visionary freedom work taking place in abolition collectives around the u.s., we begin with a brief overview of attempts to reform icwa within the context of the settler-state’s persistent attachment to family regulation. most examples of such efforts focus on the need to ensure and increase icwa compliance to provide native families with the protections mandated by the law. next, we examine the contributions of black activists and communities at the forefront of the movement to abolish the child welfare system. we conclude by envisioning an abolitionist approach that redirects social and financial resources into the hands of native families and works cooperatively with tribal nations to promote indigenous communities of care. to this end, we argue that the child welfare system in its entirety must be abolished in order to stop the routine surveillance and separation of native children from their families by the state. in so doing, we affirm that icwa has provided, and will continue to provide, a necessary intervention to protect native families so long as this intrusive system remains. a. existing and ongoing reform tribal communities and native family advocates understand the multi-dimensionality of state-violence against native peoples in the u.s. and fight to protect native families from these harms using a variety of tools. in child welfare matters, native families rely on icwa to mitigate harms and promote cultural and social stability in the lives of native families, even despite considerable compliance and resource obstacles. efforts to enhance the power and reach of icwa have grown in recent decades using education, public outreach, and collaboration-building between tribes and state and federal social services. to monitor and ensure national icwa compliance with various systems and jurisdictions, advocacy groups including casey family programs, recommend that icwa performance measures be developed and integrated into tribal, state, and federal reporting systems such as the federal administration for children and families (acf) and family services reviews. 2021] indian child welfare 567 additional efforts focus on the role of judges and courts and emphasize enhanced training on icwa’s intent. efforts include best practice guidelines and link icwa compliance with courtroom dynamics and actors involved in child welfare cases. intentional training would ensure, for example, that presiding judges ask on the record, if not already established, about a child’s potential aian heritage.89 in many jurisdictions, judges, social workers, and attorneys90 already receive training to improve their understanding of icwa compliance and sanctions, but other legal actors such as guardians ad litem and special advocates would also benefit from intentional, data-driven education.91 related efforts call for increased empirical evaluation of icwa compliance and outline a variety of methods to do so. these methods include court observations within and across child welfare cases, reviewing case records to ensure compliance over time,92 and the use of qualitative methods such as focus groups to envision additional compliance efforts.93 while we do not disagree with the merit and importance of such data collection, our quantitative findings indicate that the ongoing rate of native child removal is persistent and may remain so in the event that the larger infrastructure of a punitive child welfare regime stays intact. it is the confluence of our own findings, the findings of tribes and advocates in decades prior, and the critical moment of institutional reckoning unfolding around us that underscore the need to rethink the end goal of compliance-based research. instead, we suggest that compliance analysis would be greatly enhanced with a reorientation toward liberation and abolition. b. thinking with liberation and abolition in the context of child welfare black activists and communities have long been at the forefront of the movement to promote abolition generally and 89 id. at 4. 90 id. at 13. 91 id. at 6. 92 alicia summers & steve wood, measuring compliance with the indian child welfare act: an assessment toolkit, nat’l council of juv. & fam. ct. judges 8 (2014), https://www.ncjfcj.org/wp-content/uploads /2014/02/icwa_compliance_toolkit_final.pdf [https://perma.cc/h8z4-dh96]; williams et al., supra note 39. 93 summers & wood, supra note 92; williams et al., supra note 39. 568 colum. j. race & l. [vol. 11:533 abolish the child welfare system specifically. a variety of scholars, including the work of critical geographer ruth wilson gilmore, provide guidance on how to ground oneself in the collective learning, sharing, and service for a free and just future for all peoples. this abolitionist approach to social inequality involves a clear acknowledgment of the harms committed against a community, as well as the roots of that harm, visible.94 abolition subsequently dismantles oppressive systems and builds life-affirming institutions95 and spaces that promote healthy communities in ways that resonate with local knowledge. in summary, an abolitionist perspective seeks to address the origins of social insecurity,96 acknowledge structural harm,97 dismantle institutions that are beyond reform, and reimagine possibilities that prioritize social justice. in the context of child welfare, abolitionists argue that the current child welfare system is flawed beyond repair and reform is insufficient.98 advocates call for a new framework that is fundamentally anti-racist and rethinks how and why society supports the well-being of children and families99 above and beyond shifting funds from one social institution to another. critical legal scholar dorothy roberts and others explain that after being largely excluded from the child welfare system prior to the 1960s, black children today are disproportionately represented in the surveillance and policing of family life.100 similar to the experiences of native families, advocates for black children and families note that poverty and single parent family 94 lisa sangoi, co-founder & co-director, movement for family power, keynote address at upending the child welfare system: the road to abolition conference, (oct. 29, 2020), https://upendmovement.org/2020 /10/29/keynote-address-upend-convening [https://perma.cc/kz4f-r9nm]. 95 ruth wilson gilmore, abolition geography and the problem of innocence, in futures of black radicalism, 224 (gaye theresa johnson & alex lubin eds., 2017). 96 theresa rocha beardall, abolish, defund, and the prospects of citizen oversight after george floyd, soc’y for the anthropology of work (dec. 1, 2020); ruth wilson gilmore, keynote conversation at the making and unmaking mass incarceration conference (december 5, 2019), https://mumiconference.com/transcripts [https://perma.cc/9rzy-kv9v]. 97 sangoi, supra note 94. 98 alan j. dettlaff et al., it is not a broken system, it is a system that needs to be broken: the upend movement to abolish the child welfare system, 14 j. pub. child welfare 500, 501 (2020). 99 id. at 502. 100 dettlaff et al., supra note 98, at 2. 2021] indian child welfare 569 structures are predictors of child removal,101 and that even when controlling for poverty and family structure, racial disparities continue to be present.102 also salient to the native experience, black families receive differential treatment by child welfare workers who show a lack of cultural sensitivity, express judgment about black parenting styles, and compare black parenting against white and middle-class parenting perspectives.103 the contemporary child welfare system acts as a racialized system of family regulation that blames black and native mothers for the structural conditions of poverty and inequality in which they live and parent. the system also blames mothers for the failures of an incredibly austere american welfare state. instead of providing support to families in crisis, current systems prioritize the surveillance and punishment of black and native families. abolitionists argue that these separation-oriented state family regulation systems do not, and in their current configurations cannot, advance the best interests of black and native families. c. reimagining indigenous communities of care many advocates agree that the child welfare system is beyond repair because the system’s disruptive and punitive intentions are antithetical to a support system that centers the dignity of family and extended kin networks. as with the issue of racially-biased policing in the u.s., the question of reform versus abolition relies upon measurable harm reduction and presumptions that more or less state intervention will keep families safe. critics counter that social systems that are rooted in racism104 must be abolished. we stand with this position and argue for an abolitionist approach to child welfare that 101 id. at 21. 102 miller, racial disproportionality in washington state’s child welfare system, wash. st. inst. for pub. pol’y, document no. 0806-3901, at 1 (2008), https://www.wsipp.wa.gov/reportfile/1018/wsipp_racialdisproportionality-in-washington-states-child-welfare-system_fullreport.pdf [https://perma.cc/cd32-tzyj]. 103 marian s. harris & wanda hackett, decision points in child welfare: an action research model to address disproportionality, 30 child. & youth serv. rev. 199, 207 (2007). 104 what does it mean to abolish the child welfare system as we know it? ctr. for study soc. pol’y, (june 29, 2020), https://cssp.org/2020/06/whatdoes-it-mean-to-abolish-the-child-welfare-system-as-we-know-it [https://perma .cc/5q3d-sd7k]; dettlaff et al., supra note 98, at 501. 570 colum. j. race & l. [vol. 11:533 reimagines family safety in ways that center the active dismantling of racist policies. we conclude by envisioning an abolitionist approach to child welfare in which researchers can play an important role. first, researchers can and must consider how their scholarly interventions can open up space for the fight for abolition to meaningfully grow. one way this may be possible rather quickly is through study design. for example, we rightfully situate our empirical findings within a theoretical framing of the state as a settler-state, a political and sociohistorical actor invested in white supremacist values that manifest in surveillance and family separation. we do so in order to call to account the structural violence that cannot be divorced from the stories the data tell about the effects of centuries of anti-native subordination. second, this empirical approach positions our findings and implications in service of the visionary freedom work taking place in abolition collectives and in service of tribes and advocates who continuously demand increased protections for their children and families. we affirm that icwa has provided, and will continue to provide, a necessary intervention to protect native families so long as this intrusive and punitive child welfare system remains. third, poverty disproportionately burdens native families and there is a clear relationship between poverty and involvement in the child welfare system.105 we argue in favor of redirecting funding from the foster care system directly to families and communities;106 the expansion of social safety net programs to mitigate mistreatment and neglect caused by financial precarity;107 and a prioritization of increased access to affordable housing,108 healthcare services, community infrastructure, and fresh food and water. we suggest that child welfare funding that further empowers state authorities, which historically have acted to separate native families, must be reallocated into native homes. these homes have often been deemed financially “unfit,” acting as justifiable grounds for child 105 miller, supra note 102, at 21. 106 dettlaff et al., supra note 98, at 508. 107 what does it mean to abolish the child welfare system as we know it? ctr. for study soc. pol’y, (june 29, 2020), https://cssp.org/2020/06/whatdoes-it-mean-to-abolish-the-child-welfare-system-as-we-know-it [https://perma .cc/5q3d-sd7k];; dettlaff et al., supra note 98, at 510. 108 ctr. for study soc. pol’y, supra note 107. 2021] indian child welfare 571 removal for more than a century. these recommendations are attentive to the fact that financial circumstances within urban and tribal communities are complex.109 nonetheless, we suggest that resource allocation for native children and families must be both equitable and reconciliatory as resource constraints remain a grave inequality in native sovereign nations more broadly and in the administration of child welfare specifically. importantly, we wish to highlight here that financial resources alone cannot appropriately remedy the problem of family separation. a recognition of and support for the effects of multigenerational trauma, honoring the care found within extended native kin networks, and movements to revitalize community-centered values to strengthen families are all essential components of a path forward. additionally, we advocate for an abolitionist agenda that reimagines child welfare and supports the building of urban and reservation indigenous communities of care led by and for native peoples and tribes. indigenous care communities would prosper alongside the promotion of tribal sovereignty, adherence to treaty obligations, and a return of homelands, resources, and waterways to native communities. allies interested in supporting indigenous communities of care must recognize that tribal autonomy is paramount, must continue to fight against efforts to prioritize family regulation over community support, and educate others about the historical significance of native land theft and genocide. some examples of how an abolitionist approach to child welfare might positively impact native families include the immediate termination of the use of congregate care facilities such as group homes in favor of investing in native community-based support and greater recognition of informal kinship networks.110 movements can look to existing programs including individualand family-level icwa efforts and the intentional recruitment of icwa-compliant foster families. recruitment requires the recognition and elimination of social and economic barriers for native households to become a foster 109 see generally matthew l.m. fletcher, in pursuit of tribal economic development as a substitute for reservation tax revenue, 80 n.d. l. rev. 759 (2004). 110 ctr. for study soc. pol’y, supra note 107; dettlaff et al., supra note 98, at 510. 572 colum. j. race & l. [vol. 11:533 family111 in ways that speak to the necessity of mutual aid in cultivating safe and affirming homes for all native families. similarly, efforts to radically rethink care outside of formal institutions and agencies need not look far as tribal communities in both urban and rural spaces have participated, and continue to participate, in mutual aid collectives that provide nourishment for one another in the face of institutional neglect. vi. conclusion in 1978, icwa introduced federal protections for native children (enrolled and eligible for membership), families, and tribes against unnecessary removal and affirmed the role of the tribe as an important partner in child welfare proceedings. in this article, we used administrative and historical data to statistically evaluate the magnitude of change in aian family separation since the passage of icwa and locate the institutional pathways that funnel aian families into the child welfare system. we find that the frequency of aian children’s placement into foster care has remained relatively stable since the passage of icwa, that aian children remain at an incredibly high risk of family separation through the child welfare system, and that the post-investigation removal decision by child welfare agencies is a key mechanism of inequality in family separation. based upon these findings, and our framing of family separation as an inherent element of white supremacist settler-state logics, we argue that the child welfare system in its entirety must be abolished in order to stop the routine surveillance and separation of native children from their families by the state. we also suggest that icwa has provided, and will continue to provide, a necessary and desperately needed intervention to protect native families so long as this intrusive system remains. we are hopeful that abolitionist principles can intersect with the work of native child welfare advocates committed to placing social and financial resources into the hands of native families. coupled with the 111 killos et al., supra note 39, at 12; in a recent pilot, casey family programs purposefully sought to recruit and retain native families interested in becoming foster families. they did so by working closely with native families to prepare them for licensure and also by providing financial and material support directly to these families. the goal was to ensure that, in the end, native children would be placed in foster homes that preserve their connection to their culture, traditions, and birth parents. such efforts require meaningful collaborations between states and tribes as well as a centralized state application system for those interested in becoming foster families. 2021] indian child welfare 573 necessity of cultural respect and the centering of human dignity and family rights, these efforts can work cooperatively with urban and reservation communities to promote their vision of indigenous communities of care. the time is now to make right on the nation’s promise to end family separation among native families and tribes. 574 colum. j. race & l. [vol. 11:533 columbia journal of race and law vol. 11 april 2021 no. 2 note for the “wealthy and legally savvy”: the weaknesses of the uniform partition of heirs property act as applied to low-income black heirs property owners avanthi cole! heirs property is a highly unstable form of land ownership resulting from intestacy that grants full ownership rights to all cotenants, regardless of the size of one!s fractional interest. this form of land ownership is particularly vulnerable to partition because any use of the parcel requires consensus among all cotenants, which can be difficult given that many heirs do not live on the land and are frequently unaware of their fractional ownership. the uniform partition of heirs property act (the uphpa) was drafted to address heirs property ownership and the difficulties it presents. the act has been recommended for enactment in all states, and as of february 2021, has been enacted in seventeen states. this note argues that the legislation falls short of protecting the interests of those who are land-rich but cash-poor and whose single greatest asset is their fractional interest in heirs property. this note critiques the act by rooting its shortcomings in the drafters! decision to normalize the property ownership characteristics of those of higher socioeconomic statuses. the uphpa fails to support heirs property owners because it treats the "wealthy and legally savvy# as ! j.d. candidate, columbia law school, 2021. african american studies, a.b., princeton university, 2018. thank you to professor maeve glass and dana neacsu, ph.d. for your guidance, encouragement and continued belief in me and in this project, even when i was unsure of myself. to my family, especially my father and uncle, thank you for teaching me about my family!s history, for instilling in me a profound appreciation and respect for land ownership, and for your unfaltering love and support. i am forever grateful. 344 colum. j. race & l. [vol. 11:343 the norm for property owners in the united states, which is inherently in conflict with the socioeconomic realities of most heirs property owners. this note proposes amendments to the uphpa that reflect the ownership characteristics of the average heirs property owner rather than those of the "wealthy and legally savvy.# 2021] wealthy and legally savvy 345 i. introduction .........................................................................346 ii. an overview of heirs property and the creation of the uphpa ......................................................................348 a. the heirs property problem in black america .........349 1. the consequences of owning heirs property ...350 2. partition actions and their ramifications ........353 b. the uphpa is presented as a solution .....................356 iii. weaknesses in the uphpa as applied to low-income black heirs property owners.............................................358 a. embracing the “wealthy and legally savvy” as the norm ..................................................................358 b. accessibility of the cotenant buyout..........................360 c. availability of judicial discretion ..............................363 d. legal fees associated with partition actions ...........367 iv. modifications to the uphpa to better protect the land-rich and cash-poor ...................................................369 a. fee-shifting provision .................................................369 b. mandate for partition-in-kind....................................371 v. conclusion............................................................................372 i.s 346 colum. j. race & l. [vol. 11:343 introduction in 1897, matthew allen!s great-grandfather, the son of slaves, purchased a twenty-acre parcel of land in what is now known as hilton head, south carolina.1 today, that twenty-acre plot is the largest undeveloped parcel of the now-famous tourist destination.2 due to a lack of clear title, allen and other family members are struggling to maintain ownership of this parcel of land, which has been in his family for over 120 years.3 the property is co-owned by more than 100 known heirs, which makes it particularly vulnerable to division and sale.4 this type of land ownership is known as “heirs property,”5 and is especially prevalent in low-income communities and communities of color.6 some scholars estimate that anywhere between one-third and one-half of the land owned by black people in the united states can be classified in this way.7 heirs property is a form of tenancy in common that results from intestacy, the legal term for dying without a will.8 when a landowner dies without a will, the whole property is distributed to the original landowner!s heirs, who become cotenants, each with equal right to possess and use the entire parcel of land, regardless of the size of one!s fractional interest.9 this form of landownership is precarious because many uses of the land requires consensus among all heirs,10 which can be 1 leah douglas, african americans have lost untold acres of land over the last century, nation (june 26, 2017), https://www.thenation.com/article/african-americans-have-lost-acres/ [https://perma.cc/p49d-7khh]. 2 id. 3 id. 4 id. 5 various scholars use the terms “heirs property,” “heirs! property,” “heir-locked property,” and “heir property” to describe this type of land ownership. because the uniform partition of heirs property act refers to this type of property ownership as “heirs property,” and for the sake of consistency, this note uses the term “heirs property” throughout. 6 joan flocks et al., the disproportionate impact of heirs! property in florida!s low-income communities of color, 92 fla. bar j. 57, 57 (2018). 7 janice f. dyer et al., ownership characteristics of heir property in a black belt county: a quantitative approach, 24 s. rural socio. 192, 193 (2009) [hereinafter dyer, ownership]. 8 thomas w. mitchell, historic partition law reform: a game changer for heirs! property owners, tex. a&m univ. sch. l. fac. scholarship, 2019, at 65, 67 [hereinafter mitchell, game changer], https://scholarship.law.tamu.edu/facscholar/1327 [https://perma.cc/gs8lne7m]. 9 b. james deaton, a review and assessment of the heirs! property issue in the united states, 46 j. econ. issues 615, 618"19 (2012). 10 id. at 619. 2021] wealthy and legally savvy 347 difficult given that many heirs property owners do not live on the land and are, in some instances, entirely unaware of their fractional ownership.11 without agreement among all landowners, the only legal remedy is a partition action, which can be exercised by any of the cotenants.12 partition actions can either result in a partition-in-kind, which is a physical division of the land, or in a partition-by-sale, which forces the sale of the entire property and divides the proceeds, minus legal fees, among all heirs according to respective fractional interest.13 the uniform partition of heirs property act (the uphpa or the act) was written to address the difficulties presented by this form of land ownership.14 this note roots the act!s shortcomings in the drafters! decision to normalize the property ownership characteristics of those of higher socioeconomic statuses. this note argues that the uphpa does not do enough to protect the land ownership interests of those who are land-rich but cash-poor#those whose single greatest asset is their fractional interest in heirs property. many scholars have explored the problem of heirs property, and some have addressed and critiqued the effectiveness of the uphpa.15 some have even gone as far to suggest that the adoption of the uphpa would not be beneficial to heirs property owners given existing state property and partition laws.16 this note does not suggest that the act should be completely disregarded. the act is a critical first step in protecting heirs property ownership in the united states. instead, this note argues that the uphpa fails to truly support heirs property owners because it treats the “wealthy and 11 andrew w. kahrl, the land was ours: how black beaches became white wealth in the coastal south 240 (2016). 12 deaton, supra note 9, at 619. 13 id. 14 unif. partition heirs prop. act intro. note, at 1 (unif. l. comm!n 2010) [hereinafter uphpa]. 15 see generally thomas w. mitchell, from reconstruction to deconstruction: undermining black landownership, political independence, and community through partition sales of tenancies in common, 95 nw. u. l. rev. 505, 508 (2001) [hereinafter mitchell, reconstruction] (discussing the fraught history of heirs property in the united states); jesse j. richardson, the uniform partition of heirs property act: treating the symptoms and not the cause?, 45 real est. l.j. 507, 560 (2017) (exploring the importance of land ownership and concluding that the act only effectively addresses the scenario in which a third party is attempting to force a sale of an entire parcel of heirs property). 16 see generally manuel farach, the uniform partition of heirs property act: a solution in search of a problem, 92 fla. bar j. 56 (analyzing whether the adoption of the uphpa would be effective in florida given existing state property and partition law). 348 colum. j. race & l. [vol. 11:343 legally savvy”17 as the norm for property owners in the united states, which is inherently in conflict with the socioeconomic realities of most heirs property owners. part ii offers a history of heirs property in black america, with an emphasis on wealth among black heirs property owners. this section also discusses the creation of the uphpa and its most important provisions. part iii elaborates on the weaknesses of the uphpa. it argues that the act modeled heirs property on the ownership characteristics of the “wealthy and legally savvy” and therefore fails to address problems faced by low-income cotenants of heirs property.18 it also discusses the three weakest provisions of the uphpa: the cotenant buyout provision, the availability of judicial discretion in resolving partition actions, and the absence of solutions to address the exorbitant legal fees that result from partition actions. part iv presents amendments to the uphpa that could be included by state legislatures interested in adopting the act. the amendments reflect the ownership characteristics of the average heirs property owner rather than the experiences of the “wealthy and legally savvy.” specifically, this note proposes that the attorneys! fees of all cotenants be shifted to the cotenant who initiated the partition action. this may serve as a deterrent to land and real estate developers who are looking to take advantage of heirs property owners, and might indirectly encourage resolutions between family members that do not result in the division or sale of property. further, unless there is agreement among all located cotenants, partition actions must be resolved in kind rather than by sale. this allows land-rich but cash-poor cotenants who live on the land to keep their homes, while also allowing the cotenant(s) no longer interested in their property interest to be relieved of their duties. ii. an overview of heirs property and the creation of the uphpa heirs property is a highly unstable form of land ownership that grants full rights of ownership to all cotenants, regardless of the size of one!s fractional interest and without equally distributing responsibility among the heirs.19 lack of responsibility partnered with full rights of ownership mean that any cotenant can force a sale of the entire property, ending the 17 uphpa intro. note, at 3. 18 id. 19 faith rivers, inequity in equity: the tragedy of tenancy in common for heirs! property owners facing partition in equity, 17 temp. pol. & civ. rts. l. rev. 1, 2, 38 n.348 (2007). 2021] wealthy and legally savvy 349 tenancy-in-common for all cotenants.20 this section describes the prevalence of this volatile form of ownership in black communities and articulates some of the challenges faced by heirs property owners of lower wealth brackets. this section also discusses the creation of the uphpa, which was drafted specifically to address the difficulties faced by lowand middle-income heirs property owners.21 a. the heirs property problem in black america the challenges associated with heirs property can be seen throughout many communities across the united states.22 individuals in lower income brackets and of lower formal education are most likely to own heirs property.23 studies have shown that black landowners are extraordinarily vulnerable to this type of land ownership because of the low rate of will-making in the black community; up to eighty-three percent of black people die intestate.24 when a landowner dies without a will, the parcel generally gets passed down to the decedent!s heirs as an undivided unit with no right of survivorship.25 as each generation dies intestate, the title becomes increasingly clouded 20 mitchell, reconstruction, supra note 15, at 508. 21 uphpa intro. note, at 1. 22 thomas w. mitchell, reforming property law to address devastating land loss, 66 ala. l. rev. 1, 31"33 (2014) [hereinafter mitchell, reforming]. 23 scott pippin et al., u.s. dep!t of agric., identifying potential heirs properties in the southeastern united states: a new gis methodology utilizing mass appraisal data 13 (2017), https://www.srs.fs.usda.gov/pubs/gtr/gtr_srs225.pdf [https://perma.cc/xw3rymey]. 24 todd lewan & dolores barclay, developers and lawyers use a legal maneuver to strip black families of land, authentic voice, https://theauthenticvoice.org/mainstories/tornfromtheland/torn_part5/ [https://perma.cc/4kv2-ze7f] (last visited dec. 24, 2019). one study concluded that sixty-five percent of those whose income falls below $65,000 had not created wills. mitchell, reconstruction, supra note 15, at 507. furthermore, over seventy-percent of those with estates worth less than $130,000 did not have wills, and fifty percent of those with estates worth less than $260,000 had not created any wills. id. one scholar theorizes that low rates of will-making among black people can be attributed to a distrust in the government and the mistaken belief that their children will eventually inherit their land. roy w. copeland, heir property in the african american community: from promised land to problem lands, 2 pro. agric. workers j. 1, 2 (2015). 25 janice dyer, statutory impacts of heir property: an examination of appellate and macon county court cases 2 (dec. 7"9, 2008) (unpublished manuscript) [hereinafter dyer, statutory impacts], http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.569.1533&rep=rep1&t ype=pdf [https://perma.cc/tp5c-xk4h] (paper presented at the 66th annual professional agricultural workers conference, tuskegee university). 350 colum. j. race & l. [vol. 11:343 and the property interests more fractionalized.26 after numerous generations, a situation could arise where, for example, sixty-six heirs own interests in an eighty-acre plot of land, with some heirs owning fractional interests the size of a parking space.27 this is what happened in to a family rankin county, mississippi.28 one family member wanted her share of the land separated from the lot, while three others with shares the size of parking spots opposed the division because their interest would essentially become worthless after a partition.29 as a result, a court decided to partition the land by sale and divide the proceeds according to each heir!s fractional interest.30 more troubling is that each heir has the right to petition for the sale of the entire property.31 thomas mitchell, a professor of law at texas a&m university who specializes in the problem of heirs property and partition actions, described this dilemma as such: “$imagine buying one share of coca-cola, and being able to go to court and demand a sale of the entire company! . . . . $that!s what!s going on here.!”32 1. the consequences of owning heirs property scholars have used the concept of “dead capital” to describe heirs property because this type of land cannot be leveraged for financial gain.33 hernando de soto coined the term “dead capital” to describe property situations in developing countries where lack of “necessary formal structure” prevented certain landowners from leveraging their land to secure loans.34 b. james deaton, a scholar whose work focuses on heirs property, equated the situation described by de soto to the difficulties faced by heirs property owners in the united states; cotenants face similar restraints because they cannot leverage their partial interest in the parcel to secure a loan.35 many heirs property owners are considered “land rich but cash poor” because the majority of their wealth is tied to their fractional interest in the 26 id. at 2. 27 lewan & barclay, supra note 24. 28 id. 29 id. 30 id. 31 mitchell, reforming, supra note 22, at 10. 32 lewan & barclay, supra note 24 (quoting thomas mitchell, professor of law at texas a&m university). 33 conner bailey et al., heirs! property and persistent poverty among african americans in the southeastern united states, in heirs! property and land fractionation: fostering stable land ownership to prevent land loss and abandonment 9, 10 (cassandra johnson gaither et al. eds., 2019). 34 deaton, supra note 9, at 621. 35 id. 2021] wealthy and legally savvy 351 land,36 but they are unable to mobilize this wealth due to the financial limitations associated with this dead capital.37 banks and other lending institutions, for instance, rarely accept a fractional interest in heirs property as sufficient collateral for a loan.38 owners of heirs property are generally ineligible for mortgages or disaster relief through section 502 of the housing act of 194939 or other housing programs such as rural development loans for repairs.40 this became a serious problem for low-income heirs property owners whose property was destroyed during hurricanes katrina and rita.41 according to a study conducted by the u.s. department of agriculture, approximately 20,000 heirs property owners were denied assistance grants from the federal emergency management agency or the u.s. department of housing and urban development because they lacked the requisite clear title; this number increases when including heirs property owners affected by hurricane dolly in texas.42 unrelated to natural disasters, heirs property owners in kentucky and virginia struggle to access grants and loans to upgrade their failing septic systems, which poses a significant health risk not only to the heirs property owners but to others in the community.43 for one heirs property owner to secure a loan or mortgage, or to build, rebuild, or otherwise use the land, all heirs property owners must agree.44 reaching this agreement 36 mitchell, game changer, supra note 8, at 70. 37 deaton, supra note 9, at 621. see also bailey, supra note 33, at 16 (describing the difficulty of using heirs property to its full productive potential). 38 mitchell, game changer, supra note 8, at 78. banks and lending institutions will not accept heirs property as a collateral for a loan unless all living heirs agree to accept the debt. this can be nearly impossible when there are numerous heirs with different ideas of how the land should be used. those who live on the land generally have no recourse but to live in mobile homes because they can be financed through personal loans; a mortgage is not required. cassandra johnson gaither, appalachia!s "big white ghettos#: exploring the role of heirs! property in the reproduction of housing vulnerability in eastern kentucky, in heirs! property and land fractionation: fostering stable land ownership to prevent land loss and abandonment 49, 49 (cassandra johnson gaither et al. eds., 2019). 39 kahrl, supra note 11, at 176. 40 dyer, statutory impacts, supra note 25, at 3. 41 pippin, supra note 23, at 9"10. importantly, a large number of wealthy heirs property owners were able to hire attorneys to help the family and land recover from the ravages caused by hurricane katrina. uphpa intro. note, at 6. 42 pippin, supra note 23, at 10. 43 id. at 10. 44 laura bliss, the gullah-geechee people called carolina!s coast home for centuries. then florence came, mother jones (sept. 18, 2018), https://www.motherjones.com/environment/2018/09/florence-is-destroying-a352 colum. j. race & l. [vol. 11:343 can be a challenge#if not impossible#particularly in situations similar to that of matthew allen whose parcel of land has upwards of 100 co-owners.45 not only do heirs property owners have greatly limited access to services and benefits generally afforded to landowners, they are also extremely susceptible to land loss. in the forty-five years following the end of the civil war, studies estimate that freed black people accumulated about fifteen million acres of land, mostly in the south.46 the land was used primarily for farming, and by the 1920s, there were 925,000 black-owned farms in the united states.47 this land, which some hold to be almost sacred,48 became a source of personal security, independence, satisfaction, pride, and a “will to overcome” for black families.49 but by 1975, there were only 45,000 remaining black-owned farms and as of 2017, only two percent of the farms in the united states were black-owned.50 these quantitative valuations of black land loss stand in stark contrast to the experience of white farmers and farm-owners in similar positions. while the number of black farmers decreased by 99% between 1920 and 1997, the number of white farmers decreased delicate-system-of-land-ownership-going-back-over-100-years/ [https://perma.cc/37zr-2xzk]. cain bryan purchased a parcel of land in south carolina in 1875. in 2019, his descendants decided to sell the heirs property to land developers. this sale was just as complicated as decisions to use or build on the land. a few family members successfully located all 144 living heirs through court proceedings and research, determined the heirs! respective fractional interests in the land, and ensure that all 144 heirs were in agreement to sell the land. david slade, 144 heirs of black homesteader without will overcome odds to sell mount pleasant property, post & courier (sept. 20, 2019), https://www.postandcourier.com/business/real_estate/heirs-of-blackhomesteader-without-will-overcome-odds-to-sell/article_84717e74-ba12-11e9934c-ffa39e62b141.html [https://perma.cc/ug5s-pqrw]. 45 douglas, supra note 1. see also john schelhas et al., the sustainable forestry and african american land retention program, in heirs! property and land fractionation: fostering stable land ownership to prevent land loss and abandonment 20, 21 (cassandra johnson gaither et al. eds., 2019) (describing the difficulty of achieving agreement when heirs are geographically dispersed and diverging interest in the use of the land). 46 douglas, supra note 1. 47 id. 48 phyliss craig-taylor, through a colored looking glass: a view of judicial partition, family land loss, and rule setting, 78 wash. u. l. rev. 737, 773 (2000). see also letter from raymond e. cole to author (dec. 30, 2019) (on file with author) (“land ownership played a huge role [for] southern black americans. . . . leaving land for the family was a southern legacy. . . . it!s a testament to struggles black families endured. . . . land ownership as basically a legacy to be inherited from generation to generation. that!s important to me# very!! not only that, it provides proof that you once existed.”). 49 bailey, supra note 33, at 9. 50 douglas, supra note 1. 2021] wealthy and legally savvy 353 only by 66%.51 moreover, almost all of the land lost by black farmers is now either owned by corporations or white individuals.52 commentators estimate that since 1969, black americans have lost eighty percent of their land, farms or otherwise#half of which has been lost through the division and sale of heirs property.53 due to the vulnerable nature of dead capital as well as landowners! inability to mobilize this land for economic gain, heirs property ownership constrains economic development,54 prevents the accumulation and transfer of intergenerational wealth, and “contributes to persistent poverty in the black belt south.”55 2. partition actions and their ramifications in situations where heirs property owners either cannot agree on how the land should be used, or a co-owner is no longer interested in their fractional interest in the land, the tenancy-in-common can be dissolved through a partition action.56 there are two primary forms of partition actions. first is a partition-in-kind, which results in the parcel of land being divided among the co-owners according to fractional interest.57 the land is then allocated to the tenants-in-common.58 second is a partition-by-sale, where the entire parcel is forcibly sold and the proceeds (minus the legal fees) are distributed among the various cotenants.59 partitions-in-kind present the opportunity for family members to maintain most, if not all, of their land; it also allows cotenants to establish a clear title and better protect their land in the future.60 for this reason, courts are said to prefer partitions-in-kind to partitions-by-sale.61 scholars have noted that despite this statutory preference, courts tend to order a partition-by-sale to resolve these disputes.62 one commentator theorizes: “[s]ale normally is the product of a partition proceeding, either because the parties 51 vann r. newkirk ii, the great land robbery: the shameful story of how 1 million black families have been ripped from their farms, atlantic (sept. 29, 2019), https://www.theatlantic.com/magazine/archive/2019/09/thisland-was-our-land/594742/ [https://perma.cc/6bgk-mxkp]. 52 id. 53 lewan & barclay, supra note 24. 54 deaton, supra note 9, at 621. 55 bailey, supra note 33, at 11. 56 deaton, supra note 9, at 619. 57 mitchell, game changer, supra note 8, at 73. 58 id. at 73. 59 id. at 69. 60 rivers, supra note 19, at 59. 61 id. 62 id. 354 colum. j. race & l. [vol. 11:343 all wish for it or because courts are easily convinced that sale is necessary for the fair treatment of the parties.”63 others have suggested that since real property is increasingly considered a fungible commodity, there is less of an interest in protecting the non-economic value of a parcel of land, something that would be protected through a partition-in-kind.64 this non-economic value is salient in the case of black-owned heirs property#for many black heirs, these parcels of land represent a dramatic shift in status from that of their ancestors, a shift from being considered and treated as property to becoming the owners of real property themselves.65 partitions-by-sale pose an additional problem for many heirs property owners. since the earnings, minus the legal fees, are divided among the cotenants,66 many cotenants are left with very little after a court has sold the land and distributed the proceeds. theresa white, a descendant of gullah freed slaves67 who lives in south carolina, stated, “by the time they finish dividing the money up [in a partition action], it!s not enough. you end up in a public housing complex, or section 8 housing, or in the mobile home park.”68 there are also instances of cotenants facing homelessness after a partition-by-sale.69 63 id. at 50. see also sarah waldeck, rethinking the intersection of inheritance law and the law of tenancy in common, 87 notre dame l. rev. 737, 751 (2011) (“for the typical tenancy in common, undivided land will be worth more than the sum total of its aggregate parts. empirical investigation has further suggested that even when land appears to be a good candidate for partition in kind, physical division often works to the disadvantage of one cotenant, at least in financial terms.”). 64 mitchell, reforming, supra note 22, at 12. 65 mitchell, game changer, supra note 8, at 65. 66 deaton, supra note 9, at 619. 67 the gullah are a group of black americans living on the costal fishing and farming communities of south carolina and georgia. due to geographical isolation and strong community life, they have been able to preserve their african cultural heritage to a larger degree than other groups of black americans. joseph a. opala, the gullah: rice, slavery, and the sierra leone-american connection, yale univ. gilder lehrman ctr. for study slavery, resistance, & abolition https://glc.yale.edu/gullah-rice-slaveryand-sierra-leone-american-connection [https://perma.cc/awg4-kqlt] (last visited feb. 22, 2021). 68 meagan day, freedom gained and lost, jacobin (apr. 12, 2019), https://www.jacobinmag.com/2019/04/gullah-geechee-south-carolina-civil-warslavery [https://perma.cc/6xad-an3b]. 69 craig-taylor, supra note 48, at 757. see also uphpa intro. note, at 2 (recognizing the risk of homelessness faced by individuals who rely on their fractional interest in the land to provide shelter). 2021] wealthy and legally savvy 355 partition actions were intended to resolve disputes between cotenants,70 but opportunistic land and real estate developers frequently take advantage of this legal mechanism to acquire land far below its market value.71 family members no longer interested in the property can “cash out” by selling their interest to a prospective land developer.72 once a developer has acquired an interest in the heirs property, a partition action can be initiated.73 black heirs property owners in coastal zones or in other areas with a high market value are particularly vulnerable to this type of acquisition. 74 in the 1970s, developers began actively searching for heirs property owners who either did not live on the land of interest or had little understanding of the land!s true value; the developers would then offer these landowners small sums of money for their interest.75 in one especially egregious example, a white south carolina real estate trader named audrey moffitt was able to acquire a 335-acre estate that had been owned by the becketts, a black family, since the early 1870s.76 by paying one sick and elderly cotenant $750 for her 1/72 interest (which was actually worth over six times moffitt!s offer), and by buying the interests of six other cotenants, moffitt was eventually able to force a partition action and acquire the entire property.77 through the law of partitions, moffitt received $217,000 for land that she had purchased for only $2,775.78 the distressing history of heirs property in the united states, with its devastating consequences for the black community, has led scholars and commentators to suggest modifications to existing partition law such that heirs property owners can better protect their land. one of the most successful solutions is the uniform partition of heirs property act, which was presented in 2010 to protect heirs property owners, 70 lewan & barclay, supra note 24. 71 kahrl, supra note 11, at 239. 72 mitchell, reconstruction, supra note 15, at 508. 73 kahrl, supra note 11, at 239. 74 id. at 240. see also bailey, supra note 33, at 14 (“such partition sales are most common where heirs! property has a high market value, for example along the $gullah-geechee coast! of south carolina. african-american populations were established there long before beachfront property in places like hilton head became a valuable commodity.”). 75 kahrl, supra note 11, at 240. 76 lewan & barclay, supra note 24. 77 id. 78 id. 356 colum. j. race & l. [vol. 11:343 especially those from low income communities and communities of color.79 b. the uphpa is presented as a solution the uphpa was drafted and proposed for state adoption by the uniform law commission in 2010 as a means of addressing the heirs property problem, especially among lowand middle-income families across the united states.80 the drafters of the uphpa recognize that those who are land-rich but cash-poor are the most vulnerable to land loss through partition actions; therefore, the act has the express purpose of creating and enforcing property preservation and wealth protection mechanisms to the benefit of those with modest means.81 as of february 2021, the uphpa has been enacted in seventeen states and the u.s. virgin islands, and eight of those states fall in the black belt.82 the act has also been introduced in five other states.83 the uphpa has a few important provisions created to benefit minority and low-income families. first is the cotenant buyout provision, which gives cotenants who did not initiate the partition action the opportunity to buy the property interests of those who did initiate the partition action.84 this would, in theory, allow cotenants to preserve the entire parcel of land, while minimizing or completely eliminating legal fees and other costs associated with a partition action.85 the drafters intended for this provision to promote judicial economy and the consolidation of land ownership.86 others have asserted that this 79 uphpa intro. note, at 1. 80 id. 81 id. 82 partition of heirs property act, unif. l. comm!n, https://www.uniformlaws.org/committees/communityhome?communitykey=50724584-e808-4255-bc5d-8ea4e588371d (last visited feb. 19, 2021) (listing alabama, arkansas, connecticut, florida, georgia, hawaii, illinois, iowa, mississippi, missouri, montana, nevada, new mexico, new york, south carolina, texas, and virginia as states where the uphpa has been enacted). the black belt is a group of eleven southern states with a high percentage of black residents. the black belt includes alabama, arkansas, florida, georgia, louisiana, mississippi, north carolina, south carolina, tennessee, texas, and virginia. rosalind harris & heather hyden, geographies of resistance within the black belt south, 57 se. geographer 51, 52"53 (2017). 83 id. (listing california, indiana, kentucky, massachusetts, and new jersey as states where the uphpa has been introduced). 84 uphpa § 7. 85 id. § 7(g). 86 id. § 7 cmt. n.1, at 18 (“this act includes a mechanism for the buyout of interests as the first preferred alternative to partition by sale to promote judicial economy, to encourage consolidation of ownership, and to accomplish the 2021] wealthy and legally savvy 357 buyout provision might serve as a “shark repellant,” which would disincentivize disinterested cotenants with very small fractional interests in the property from initiating a partition action at the expense of those who depend on their fractional interest in the land.87 that being said, the buyout provision might only be a theoretical solution that would be difficult to mobilize in practice. co-owners who live on the land are frequently land-rich but cash-poor and are thus unable to buy out an initiating cotenant!s interests.88 the second notable provision is the preference for partition-in-kind.89 the act requires the order of partition-in-kind unless#after analysis of the factors in section 9 of the act#this order would result in “great manifest prejudice” to the cotenants involved.90 section 9 requires judges to evaluate factors such as sentimental or ancestral attachment to the property, whether the land can be practicably divided among the cotenants, and whether the land is being lawfully used.91 importantly, judges are also permitted to evaluate “any other relevant factor,” which may allow for significant judicial discretion.92 courts have demonstrated that they are persuaded by the comparative ease of dividing money as opposed to land with numerous heirs.93 thus, allowing a judge to consider “any other relevant factor” might sway the balance away from a preference for a partition-in-kind and towards a partition-by-sale. lastly, the act mandates an open-market sale of land that is ordered to be partitioned by sale, unless sealed bids or an auction is economically preferable.94 historically, when land is partitioned by sale, the property is frequently sold in an auction, resulting in sales at fire-sale prices, meaning there is a larger goal of establishing a default, statutory approach to partition of inherited property which mirrors the best practices used for family property owned by those who are wealthy and legally savvy.”). 87 mitchell, game changer, supra note 8, at 73. 88 meghan e.b. pridemore, tides, torrens, and family trees: heirs property preservation challenges, 23 prob. & prop. 24, 26 (2009). 89 uphpa § 8. 90 id. 91 id. § 9(a). 92 id. 93 sara hitchner et al., "a privilege and a challenge#: valuation of heirs! property by african american landowners and implications for forest management in the southeastern u.s., 16 small-scale forestry 395, 398 (2017). 94 uphpa § 10. 358 colum. j. race & l. [vol. 11:343 significant discount from the fair market value of the land.95 this sale procedure speaks to a contradiction at the core of partition actions: courts are supposed to select a wealth-maximizing solution, but resolving partition actions through sale is almost always wealth-depleting.96 an open-market sale ensures that the land is sold at a fair price, maximizing the proceeds received through a partition-by-sale.97 however, open-market sales yield higher transaction costs,98 for which the cotenants who did not force the sale may be responsible.99 although the uphpa presents significant positive changes to the laws of partition, the act falls short of protecting those who are land-rich but cash-poor and for whom the loss of heirs property can constitute the loss of their single greatest asset.100 iii. weaknesses in the uphpa as applied to low-income black heirs property owners there are three main problems with the uphpa as applied to low-income black heirs property owners: the accessibility of the cotenant buyout, the availability of judicial discretion, and the absence of solutions to address the exorbitant legal fees associated with partition actions. these problems all stem from the legislative purpose of the act, elucidated in its prefatory note. this section discusses the premise of the uphpa, and the problems that arise because of the assumptions on which this act is based. a. embracing the “wealthy and legally savvy” as the norm the uphpa was drafted to address the problem of heirs property, seen most frequently in lowto middle-income families across america.101 the drafters state that the instability of heirs property ownership “stands in sharp contrast” to the property rights enjoyed by wealthier families.102 the importance of this act cannot be overstated, as the uphpa is the most comprehensive and far-reaching reform of partition law seen since the 1800s.103 the act, however, is not without fault. the 95 mitchell, reforming, supra note 22, at 20. 96 id. 97 mitchell, game changer, supra note 8, at 74. 98 richardson, supra note 15, at 556. 99 mitchell, reforming, supra note 22, at 25. 100 uphpa intro. note, at 1. 101 id. 102 id. 103 mitchell, game changer, supra note 8, at 72. 2021] wealthy and legally savvy 359 three critical weaknesses of the uphpa, discussed at length in the following sections, all stem from a major assumption that heirs property owners have the financial ability to protect their land using the same mechanisms as property owners of higher wealth brackets. in the prefatory note of the uphpa, the drafters write, “this act imports certain core property preservation and wealth protection mechanisms already commonly used by wealthy and legally sophisticated family real property owners . . . .”104 in a way, the drafters! choice to privilege the ownership norms of the wealthy and legally savvy makes sense#the wealthy have the financial means to better protect their land through making wills and hiring attorneys to help with any disputes surrounding ownership of the land. however, a deeper problem emerges in the drafters! decision to treat the wealthy as the norm. as mentioned in the prefatory note, a large number of heirs property owners cannot afford legal services, thus leaving them vulnerable to the many risks of owning heirs property under the default rules of tenancy-in-common.105 thomas mitchell, the lead drafter of the uphpa, has also discussed how the economic statuses of heirs property owners impede their ability to protect their land. for example, in a 2010 article, mitchell acknowledges that property owners who own land under the default rules governing tenancy-in-common (i.e. heirs property) are lowto middle-income people.106 in a 2014 article, mitchell does the same.107 in 2018, mitchell wrote that the “enhanced instability [of heirs property] arises from the interaction between multi-generational patterns of intestate succession among certain disadvantaged groups, the default partition law, and the low-income/low-wealth status of many heirs! property owners.”108 despite this repeated recognition that heirs property owners frequently do not have access to the finances and economic stability to protect their land, mitchell and the other drafters of the uphpa nonetheless chose to normalize the possession of wealth and used that norm as the 104 uphpa intro. note, at 3. 105 id. 106 thomas mitchell, et al., forced sale risk: class, race, and the "double discount#, 37 fla. state u. l. rev. 589, 620 (2010) [hereinafter mitchell, forced sale risk]. 107 see mitchell, reforming, supra note 22, at 30"31 (“many heirs property owners are $land rich but cash poor,! in that they do not have other substantial liquid assets (or tangible assets for that matter) that they can use, including to secure a loan, to enable them to bid effectively at a partition sale.”). 108 mitchell, game changer, supra note 8, at 69. 360 colum. j. race & l. [vol. 11:343 basis for an act written to support lowto middle-income heirs property owners.109 the subsequent sections argue that the drafters! decision to rely on the property ownership practices and norms of the wealthy and legally savvy is why the uphpa falls short for those who are land-rich but cash-poor. b. accessibility of the cotenant buyout section 7 of the uphpa presents the option for co-owners of a parcel of heirs property to buy out the interest of the cotenant who has initiated a partition action.110 after valuation of the property, any cotenant (other than the one who has initiated the partition action) may buy the whole interest of the cotenant(s) who requested the partition.111 the act covers scenarios in which more than one cotenant elects to buy out the interest, and describes how the cost is divided among electing cotenants.112 section 7 of the uphpa was included as a mechanism to establish a “default, statutory approach to the partition of inherited property which mirrors the best practices used for family property owned by those who are wealthy and legally savvy,” while also promoting judicial economy and consolidating ownership among heirs property owners.113 the legislative comments also clarify that the buyout option is mandatory for those who initiated the partition action because, in requesting this action, they have demonstrated that they are willing to be divested of their interest in the heirs property in exchange for cash.114 on its face, this buyout provision seems like an effective protective mechanism against land loss, as it would prevent a partition-by-sale where family members who live on the land are generally unable to outbid the individual who initiated the partition action in a sale of the entire property.115 furthermore, it presents a unique opportunity for heirs property owners to prevent any fractionation of their parcel of land. despite the potential for these positive outcomes, the buyout provision also demonstrates the dangers of treating the ownership characteristics of the “wealthy and legally savvy” as the norm. 109 uphpa intro. note, at 2. 110 id. § 7. 111 id. 112 id. 113 id. § 7 cmt. n.1, at 18. 114 id. § 7 cmt. n.3, at 19. 115 dyer, statutory impacts, supra note 25, at 3. 2021] wealthy and legally savvy 361 heirs property owners are often economically marginalized,116 and the land in question, even when sold below market value, is frequently too expensive for cotenants.117 many times, partition actions place cotenants who wish to maintain their interest in the land, especially those who live on the parcel, under notable financial distress.118 the buyout provision requires that “a disinterested real estate appraiser . . . determine[s] the fair market value of the property assuming sole ownership of the fee simple estate.”119 the purchase price of the initiating cotenant!s fractional interest in the parcel is the fair market value multiplied by their fractional interest.120 if only one cotenant elects to participate in the buyout provision, the court notifies all located cotenants of this fact,121 and the electing cotenant is responsible for the entire cost. alternatively, if more than one cotenant elects to participate in the buyout, the court apportions the cost of the initiating cotenant!s fractional interest of the parcel among the electing cotenants.122 in the event that no cotenants elect to participate in the buyout provision, or no electing cotenant timely pays their apportioned price, the court will proceed to either a partition-in-kind or partition-by-sale under section 8 of the uphpa.123 if some of the electing cotenants fail to timely pay their apportioned price, the remaining cost of the initiating cotenant!s interest is shifted to those who have already timely paid their apportioned price;124 if the remaining electing cotenants are unable to pay the difference, the court proceeds with the partition action under section 8.125 the accessibility of the buyout provision is fatally premised on the assumption that heirs property owners are similar to their “wealthy and legally savvy” counterparts and have sufficient cash on hand to execute the buyout provision. regardless of whether a state has enacted the uphpa, heirs property sold in a partition-by-sale was frequently subject to 116 tristeen bownes & robert zabawa, the impact of heirs! property at the community level: the case study of the prairie farms resettlement community in macon county, al, in heirs! property and land fractionation: fostering stable land ownership to prevent land loss and abandonment 29, 32 (cassandra johnson gaither et al. eds., 2019). 117 id. 118 mitchell, reconstruction, supra note 15, at 508. 119 uphpa § 6(d). 120 id. § 7(c). 121 id. § 7(d)(1). 122 id. § 7(d)(2). 123 id. § 7(d)(3), (e)(2). 124 id. § 7(e)(3). 125 id. § 7(f)(2). 362 colum. j. race & l. [vol. 11:343 auctions, yielding fire-sale prices.126 individuals who did not have enough cash on hand were unable to participate in the auction, despite the fact that land was sold far below market value.127 as a result, many land-rich but cash-poor heirs property owners could not retain their land in a partition-by-sale, even at these reduced prices.128 even though the cost of a fractional interest of land at market value might be less than the fire-sale price of an entire parcel of land, it is difficult to know whether those whose most valuable asset is their interest in heirs property would have enough cash to mobilize this buyout provision. for example, audrey moffitt, the white real estate trader discussed above, purchased the combined 1/6 interest of two beckett family members for $5,800.129 the land was subsequently appraised at $55,833.130 if the beckett family utilized the buyout provision of the uphpa, cotenants interested in retaining the land would have been responsible for $55,833 to buyout the interest of the two beckett family members who agreed to sell their fractional interest in the land, given that the uphpa!s buyout provision requires that the land be sold at fair market value.131 for those who are land-rich but cash-poor, $55,000 may be an exorbitant price that the cotenants cannot afford, even if cotenants electing to mobilize the buyout provision were to pool their assets. the first right of purchase is thus, many times, not a feasible option for lowand middle-income heirs property owners.132 the buyout provision also assumes that cotenants are able and willing to work together to pool their liquid assets to purchase the fractional interest of the initiating cotenant. if an individual cotenant interested in retaining the land does not have the financial assets required to utilize the buyout provision of the uphpa, multiple cotenants could ostensibly pool their resources and successfully buy out the fractional interest of the initiating cotenant.133 however, there are notable challenges associated with coordinating between multiple cotenants.134 as the number of shares increase and the size of each individual 126 mitchell, forced sale risk, supra note 106, at 612. 127 id. at 605. 128 mitchell, game changer, supra note 8, at 70. 129 thomas mitchell, destabilizing the normalization of rural black land loss: a critical role for legal empiricism, wis. l. rev. 557, 568 n.39. (2006). 130 id. 131 uphpa § 7(c). 132 rivers, supra note 19, at 78. 133 mitchell, game changer, supra note 8, at 73. 134 waldeck, supra note 63, at 750. 2021] wealthy and legally savvy 363 interest decreases, reaching consensus among cotenants can be extremely difficult.135 heirs property is known to be the source of intra-family conflict,136 and coordination among cotenants can be hard to achieve when a number of heirs do not live on the land or have an interest in maintaining it.137 between a lack of cooperation between cotenants138 and heirs property owners! limited liquid assets,139 the buyout provision of the uphpa might be effective in theory, but unviable in practice. c. availability of judicial discretion historically, the law has demonstrated a preference for partition-in-kind as a resolution to partition actions.140 courts have stated that a partition-by-sale is a drastic remedy that should only be exercised under specific and limited circumstances.141 in most jurisdictions, partition statutes only allow for partitions-by-sale if there is evidence to suggest that a partition-in-kind would result in “great prejudice” or “substantial injury” to the cotenants.142 despite a de jure preference for partitions-in-kind, courts have demonstrated a marked de facto preference for partition-by-sale.143 legislation preceding the uphpa relied on an economics-only test144 that did not specify the definition of “great prejudice” or “substantial injury.”145 also, courts generally act on the presumption that a large number of heirs partnered with the limited size of property can make a physical division of a parcel complicated to execute.146 the de facto preference for partition-by-sale produces a “vulnerability concern” for cotenants who want to maintain their ownership interest but are dispossessed against their will through a 135 dyer, ownership, supra note 7, at 195. 136 hitchner, supra note 93, at 410. 137 schelhas, supra note 45, at 21. 138 id. 139 bownes & zabawa, supra note 116, at 32. 140 deaton, supra note 9, at 619. 141 thomas mitchell, restoring hope for heirs property owners: the uniform partition of heirs property act, 40 state & loc. l. news 6, 8 (2016) [hereinafter mitchell, restoring]. 142 id. 143 id. 144 under the economics-only test that courts have historically relied on to resolve partition actions, courts rarely consider the sentimental attachments landowners might have to the heirs property. courts would order a sale “if the hypothetical fair market value of the entire property is significantly more than the aggregated fair market value of separately titled parcels which would arise from a partition in kind.” mitchell, reforming, supra note 22, at 12"13. 145 mitchell, restoring, supra note 141, at 8. 146 deaton, supra note 9, at 619. 364 colum. j. race & l. [vol. 11:343 partition action.147 this concern is especially prevalent when a fractional interest is acquired by a non-family member, like a land developer, whose sole interest is forcing a sale of the entire property.148 given that courts only “pay $lip service!” to historical preference for partition-in-kind, real estate developers and traders are able to use partition law to easily (and legally) gain possession of valuable family land.149 the uphpa includes a series of factors that a court must consider to determine whether a partition-in-kind would result in a “great manifest prejudice to the cotenants as a group,”150 with the intent to demonstrate a strong preference for partition-in-kind.151 when determining whether a partition-in-kind or a partition-by-sale would be the appropriate resolution for a partition action, the uphpa utilizes a “totality of the circumstances” test,152 which requires a court to evaluate: 1. whether the heirs property in question can practicably be divided among cotenants;153 2. whether the market value of the individual parcels resulting from a partition-in-kind would be less than the heirs property as a whole;154 3. evidence of collective duration of ownership by a cotenant and a predecessor who is related to said cotenant;155 4. a cotenant!s sentimental attachment to the property, including any ancestral or other unique value;156 5. whether the land is being lawfully used, and the degree of harm if a cotenant is no longer able to conduct such use;157 147 id. at 622. 148 id. 149 rivers, supra note 19, at 60. 150 uphpa § 9(a). 151 see id. § 8 legislative note (“under this act, there is . . . a strong preference for a partition in kind.”). 152 see id. § 9 cmt. n.1, at 26 (“under this section, a court in a partition action must consider the totality of the circumstances, including a number of economic and noneconomic factors, in deciding whether to order partition in kind or partition by sale.”). 153 id. § 9(a)(1). 154 id. § 9(a)(2). 155 id. § 9(a)(3). this section, in essence, asks a court to consider whether the person requesting a partition action is a part of the family that originally owned the heirs property in question, or whether this individual is a non-relative, such as a land developer or real estate trader who acquired the land by buying one family member!s fractional interest. 156 id. § 9(a)(4). 157 id. § 9(a)(5). 2021] wealthy and legally savvy 365 6. the degree to which each cotenant has paid their share of fees to maintain the property, including property taxes;158 and 7. “any other relevant factor.”159 these considerations are supposed to ensure a de jure and a de facto preference for partition-in-kind by eliminating the economics-only test that states have historically used to justify a partition action by sale.160 instead, courts must equally consider both economic and non-economic considerations,161 with no one factor being dispositive.162 despite these new requirements, though, the uphpa still gives judges substantial discretion to resolve a partition action by sale rather than in kind. in doing so, the act does not do enough to protect the land ownership interests of heirs property owners who are land-rich but cash-poor. first, the act falls short of preventing partitions-by-sale, even though the drafters claim to have promoted a strong preference for partitions-in-kind.163 the first factor asks a court to determine whether a parcel of land can be practicably divided among cotenants, although historically that question has not swayed the balance in favor of a partition-in-kind.164 in many instances, judges have ordered a partition-by-sale, even when a physical division of property is feasible or when the majority of the heirs did not want the land to be divided through sale.165 also, the act!s recommendation that the courts rely on “any other relevant factor” could continue to allow a court to resolve a partition action by sale for ease. this election for a partition-by-sale is due, in large part, to the comparative convenience of dividing money rather than dividing physical property.166 the uphpa introduces two factors by which to determine “manifest prejudice” or injury#a cotenant!s sentimental attachment to the property, including ancestral value,167 and the degree to which a cotenant would be harmed if no longer allowed 158 id. § 9(a)(6). 159 id. § 9(a)(7). 160 mitchell, game changer, supra note 8, at 73. 161 id. 162 uphpa § 9(b). 163 id. § 8 legislative note. 164 mitchell, game changer, supra note 8, at 69. 165 id. 166 hitchner, supra note 93, at 398. 167 uphpa § 9(a)(4). 366 colum. j. race & l. [vol. 11:343 to continue lawful use of the property.168 however, the remaining factors in the “totality of the circumstances” test still lean towards a preference for partition-by-sale, especially for those who are land-rich but cash-poor. the third factor requires evidence of collective duration of ownership by a cotenant and a related predecessor.169 this can be difficult to prove when the “pattern of property transfer” occurs informally without any documentation, especially among low-income individuals.170 further, the land in question frequently cannot be used lawfully, for any purposes, commercial or otherwise, as required by the fifth factor, especially when a cotenant is unable to achieve consensus on how to use the land, assuming they are even able to locate all living tenants.171 heirs property is a classic example of the tragedy of the anti-commons#since any economically viable use of the land requires the consent of all cotenants, heirs property owners are inhibited from applying the property to productive, legal use without consensus.172 no single cotenant can legally use the property without the consent of the other cotenants.173 lastly, the chances that cotenants pay their pro rata share of taxes and other maintenance fees, as required by the sixth factor,174 become more unlikely as the number of heirs increases. it is often too complicated to organize and distribute responsibility for these payments when a number of heirs do not live on the land or have any interest in maintaining it.175 the “totality of the circumstances” test is undoubtedly more comprehensive than the economics-only test that courts relied on prior to the enactment of the uphpa, but these factors still fail to ensure that heirs property is fully protected from partitions-by-sale. these weaknesses stem from the assumption of wealth upon which this act is based. the requirements that heirs property owners provide evidence of their collective duration of ownership176 and that every heir pay their pro rata share of taxes177 assumes that the family has the financial means to access legal services to produce wills and deeds showing 168 id. § 9(a)(5). 169 id. § 9(a)(3). 170 pippin, supra note 23, at 16. 171 uphpa § 9(a)(5). 172 richardson, supra note 15, at 511. 173 id. 174 uphpa § 9(a)(6). 175 hitchner, supra note 93, at 398. 176 uphpa § 9(a)(3). 177 id. § 9(a)(6). 2021] wealthy and legally savvy 367 familial ownership of the land178 and that every heir is able to pay taxes.179 this is more likely the case for the “wealthy and legally savvy” than for the low-income cotenants the drafters claim the act was designed to help.180 the strong possibility for a partition-by-sale under the act!s “totality of the circumstances” test, despite the stated preference for partition-in-kind, demonstrates the dangers of treating the socioeconomic positioning of the “wealthy and legally savvy” as the norm for land-rich but cash-poor heirs property owners. d. legal fees associated with partition actions legal fees are another aspect of a partition action that can be particularly harmful to those who are land-rich but cash-poor. heirs property owners who defend against partition actions can incur thousands of dollars in legal fees,181 which include attorneys! fees, court fees, and the cost of surveying the land.182 the exorbitant nature of these fees can undermine any economic benefit cotenants would theoretically receive through a partition-by-sale.183 in one instance, a parcel of heirs property that had been in the sanders family for eighty-three years was purchased by a timber company for $505,000.184 the attorney involved in the partition action collected roughly 20% of the land!s proceeds in attorneys! fees, which amounted to $104,730.185 this left $389,170186 to be divided among ninety-six heirs ($4,053.85 per heir), who declined to appeal the sale 178 see mitchell, reconstruction, supra note 15, at 517 (discussing the low incidence of will-making and estate planning among poor black landowners). see also christy kane et al., addressing heirs! property in louisiana: lessons learned, post-disaster, in heirs! property and land fractionation: fostering stable land ownership to prevent land loss and abandonment 89, 90 (cassandra johnson gaither et al. eds., 2019) (stating that many heirs are unable to afford the legal services required to secure clear title). 179 see mitchell, reconstruction, supra note 15, at 513 (acknowledging that in many instances, one cotenant will pay more than his pro rata share of taxes). 180 see uphpa intro. note, at 1 (“the uniform partition of heirs property act is an act of limited scope which addresses a widespread, welldocumented problem faced by many low to middle-income families across the country who have been dispossessed of their real property and much of their real property-related wealth over the past several decades as a result of courtordered partition sales of tenancy-in-common properties.”). 181 lewan & barclay, supra note 24. 182 hitchner, supra note 93, at 398. 183 uphpa intro. note, at 8. 184 lewan & barclay, supra note 24. 185 id. 186 id. 368 colum. j. race & l. [vol. 11:343 because they could not afford the legal fees of additional court proceedings.187 individual cotenants who own a small interest in the heirs property can initiate a partition action knowing that they will be able to recover their legal fees from the proceeds of the sale.188 however, cotenants who want to contest the sale of the property in court are responsible for their own legal fees.189 this limits the ability of those who are land-rich but cash-poor to protect their fractional interest in the land, which is frequently their most valuable asset.190 the drafters of the uphpa recognize the challenges posed by the current allocation of legal fees in partition actions, noting that in most states, those who unsuccessfully resist a partition action are subsequently made responsible for the attorneys! fees of the initiating cotenant, on top of their own fees resulting from hiring counsel to resist the partition action.191 currently, partition law only adds insult to injury for those who want to preserve their fractional interest in heirs property;192 cotenants are forced “to pay for the deprivation of their property rights and their resulting loss of wealth.”193 despite the drafters! acknowledgement that the existing distribution of legal fees can be extremely harmful to cotenants, especially those of modest means, the uphpa does not include any provisions to address these concerns. the drafters suggest that state legislatures include the uphpa as part of the state!s existing partition law,194 which would mean that state laws dictating the division and allocation of legal fees will remain unchanged. the uphpa offers no protection for those whose net compensation, which includes deductions for legal fees, does not exceed the perceived financial and sentimental loss.195 the absence of a provision accounting for the exorbitant legal fees speaks again to the consequences of normalizing the wealthy and legally savvy. as the drafters explain in the prefatory note to the uphpa, low-income heirs property owners 187 rivers, supra note 19, at 62 n.575. 188 id. at 61"62. 189 id. at 62. 190 uphpa intro. note, at 1. 191 id. intro. note, at 2. 192 bailey, supra note 33, at 14. 193 uphpa intro. note, at 2. 194 id. § 1 note, at 9. 195 b. james deaton & jamie baxter, towards a better understanding of the experience of heirs on heirs! property, in heirs! property and land fractionation: fostering stable land ownership to prevent land loss and abandonment 44, 45 (cassandra johnson gaither et al. eds., 2019). 2021] wealthy and legally savvy 369 do not know about and/or are unable to afford legal services that could mitigate the risks of owning heirs property.196 also, as described above, cotenants of modest means decide not to pursue appeals when their land is subject to a partition action because they are unable to afford the associated legal fees.197 modelling partition law after the ownership characteristics of the wealthy and legally savvy results in the drafters failing to devise effective solutions that address, or at least recognize, the fundamental problem that prevents heirs property cotenants from protecting their land#a lack of liquid and tangible assets, or in other words, a lack of wealth. iv. modifications to the uphpa to better protect the land-rich and cash-poor this note proposes two modifications to the uphpa to better address the needs of heirs property owners who are land-rich but cash-poor. first is a fee-shifting provision that would make the initiating cotenant responsible for all legal fees associated with a partition action. second is a mandate that all partition actions be resolved through a partition-in-kind, unless there is consensus among all located cotenants that a partition-by-sale is preferred. these proposals tackle the consequences of relying on the “wealthy and legally savvy” as the norm for property ownership. a. fee-shifting provision the uphpa does not include any provisions that address the extreme financial strain cotenants face when seeking to retain their land in a partition action.198 some heirs property owners decline to contest a partition action in court because of these legal fees.199 due to the challenges posed by the legal fees associated with partition actions, this note suggests that the uphpa be amended to include a fee-shifting provision that shifts all legal fees to the individual who initiated the partition action. the payment of attorneys! fees has historically been allocated according to one of two practices. the english rule, used in countries across the world, utilizes a “loser pays” system, in which the prevailing party!s legal fees are paid by the losing 196 uphpa intro. note, at 3. 197 rivers, supra note 19, at 62 n.575. 198 uphpa intro. note, at 2. 199 lewan & barclay, supra note 24. 370 colum. j. race & l. [vol. 11:343 party.200 the united states generally follows the “american rule,” under which each party is only responsible for their own legal fees.201 however, in the case of partition actions, courts seem to follow the english rule, in that the initiating cotenant can recoup their legal fees from the proceeds of a partition sale (to which every heir is entitled), and that contesting heirs must pay for their own legal fees.202 the american rule, importantly, is only common practice; exceptions to this “rule” can be made through statute by legislatures.203 in other words, as long as fee-shifting rules are based in statute, they can be considered exceptions to the american rule.204 as such, the uphpa should be amended to shift the legal fees of all non-initiating cotenants to the cotenant who initiated the partition action. this modification has the potential to minimize the number of partition actions of any type, as well as protect the land ownership interests of all heirs, especially those who are land-rich and cash-poor. if the action is initiated by land developers, this provision might serve as a financial deterrent. real estate traders and other opportunistic individuals like audrey moffitt might be hesitant to buy out an individual interest in heirs property to force a sale of the entire parcel205 because cotenants would be financially empowered to fight the partition action. there would no longer be scenarios of cotenants declining to resist the sale due to exorbitant legal fees for which they would be responsible.206 if the partition action is the result of a family disagreement, the financial burden facing the initiating cotenant might encourage less expensive options, such as mediation. this provision would, at its core, discourage long and arduous legal battles to sell or protect the land in question. it would deter land developers from using partition actions to acquire parcels of land that frequently hold financial and sentimental significance for black families, and it would encourage heirs property owners to search for inexpensive and mutually agreeable solutions. 200 john f. vargo, the american rule on attorney fee allocation: the injured person!s access to justice, 42 am. u. l. rev. 1567, 1569 (1993). 201 id. 202 rivers, supra note 19, at 61"62. 203 vargo, supra note 200, at 1587. 204 id. 205 mitchell, forced sale risk, supra note 106, at 612. 206 rivers, supra note 19, at 62. 2021] wealthy and legally savvy 371 b. mandate for partition-in-kind the “totality of the circumstances” test in section 9 of the uphpa is supposed to demonstrate a strong statutory preference for partition-in-kind,207 but historically, a de jure preference for this resolution has done very little to influence courts.208 this leaves cotenants who want to maintain their fractional interest in the land at risk, especially when the sale of the land is forced by a non-family member, such as a real estate trader or land developer.209 the recommendation for a fee-shifting provision can reduce the chance of a partition-by-sale because those interested in preserving their interest would not have to worry about the legal fees associated with contesting the partition action. that being said, a mandate for partition-in-kind in scenarios where cotenants are unable to reach a consensus on how to treat the land would better preserve the interests of those who depend on their fraction of the land. a mandate for partition-in-kind would create protections for all co-owners of a parcel of heirs property. first, it most obviously would protect the interests of cotenants who live on the land, who want to maintain their fractional interest. a partition-in-kind would ensure that their fractional interest remains undisturbed, and these cotenants can continue to rely on the land to serve as their home. second, this mandate can protect heirs property owners who are no longer interested in their fraction of the parcel. a co-owner selling their interest could still recover fair market price of their fraction of the land, which is required under the buyout provision and section 6 of the uphpa.210 as such, the cotenant who no longer wants their interest in the property would receive fair compensation for their fraction of the parcel, while the cotenants who want to maintain the heirs property, especially those who live on the land, can continue to do so. finally, land developers and real estate traders looking to capitalize on heirs property would have to ensure that all located cotenants agree to relinquish their fractional interests in the property in exchange for the fair market value. without 207 uphpa § 8 note, at 23 (“under this act, there is . . . a strong preference for a partition in kind.”). 208 mitchell, restoring, supra note 141, at 8. 209 deaton, supra note 9, at 622. 210 uphpa § 6 (articulating how a court is to determine the fair market value of a parcel of land). 372 colum. j. race & l. [vol. 11:343 this consensus, a forced sale, similar to what the becketts211 and other families have experienced,212 could not occur. v. conclusion the uphpa is a strong start for providing some solutions to the heirs property problem, but there is room for improving this legislation to better address the issues faced by the socioeconomic groups it was designed to help.213 given that the uphpa is adopted on a state-by-state basis,214 and that the drafters recommend the act be included into existing state partition law,215 state legislatures could modify the act or its existing law to include the reforms prescribed in this note. these amendments will only strengthen the uphpa and ensure the drafters! intent of protecting heirs property in minority and low-income communities. 211 lewan & barclay, supra note 24. 212 mitchell, forced sale risk, supra note 106, at 612. 213 uphpa intro. note, at 1. 214 partition of heirs property act, supra note 82. 215 uphpa intro. note, at 8. columbia journal of race and law vol. 14 august 2024 no. 1 article bailing out the protester alireza nourani-dargiri† the united states cash bail system unconstitutionally hinders protest rights enshrined in the first amendment. protesting on controversial issues, while protected activity, often risks arrests and other interactions with police. unfortunately, studies show that protesters of color are arrested at higher rates than white protesters. cash bail, in turn, increases the cost associated with the arrests related to protests, further disincentivizing protesters from engaging in lawful activity. although the overwhelming majority of these protests and demonstrations are peaceful, and many of the charges in these arrests are eventually dropped, arrested protesters are still required to put up hundreds––sometimes even thousands––of dollars to be released pretrial. if they cannot, they must remain in jail until their trial, until the charges are dropped, or until they are able to raise enough money to be released. this pretrial detention, even if it only lasts a few days, has significant consequences. furthermore, these consequences are not shared evenly: the cash bail system disparately impacts people of color, who are imposed bail at higher rates and at higher amounts, meaning they will also experience negative consequences at a disproportionate rate. because states are criminalizing more conduct, elevating charges from misdemeanors to felonies, and continuing to impose bail amounts on protesters, the intersection between cash bail and protests is unavoidable. in turn, many people could be afraid to protest because they do not have enough money to afford their bail if they are arrested at the protest, and because they cannot afford the negative consequences of awaiting their trial in jail. this article discusses how cash bail dissuades first amendment expression by compounding existing consequences created by government action that also curtails lawful protests. furthermore, the disparate rates at which † judicial clerk, colorado supreme court. b.a. university of texas at dallas; j.d. case western reserve university, school of law. thank you to the faculty at cwru for allowing me to workshop an early version of this piece. thank you in particular to bryan adamson, jonathan adler, eric chaffee, atiba ellis, and jessie hill for your insightful feedback. lastly, my sincerest gratitude to the editors at columbia journal of race and law for their superb editorial assistance. 978 colum. j. race & l. [vol. 14:977 protesters of color are arrested and later imposed bail raises an equal protection concern, deterring people of color from expressing constitutional rights. removing cash bail in limited circumstances associated with otherwise lawful protesting, measured reform may help alleviate some of the disparate risks involved with protected activity. while eliminating bail altogether is the ultimate goal, this measured reform would be an incremental step towards broader change, building public support for holistic reform. table of contents introduction .............................................................................................979 i. part 1 – the bedrock right to protest ..............................................981 a. rich history of protests .............................................................981 b. the protected right to protest ..................................................983 c. overwhelmingly peaceful protests ............................................988 d. recent legislation attempting to curtail lawful protests by raising costs .............................................................................990 ii. part ii – cash bail’s disparate impact on marginalized communities 993 a. what is cash bail and how does it work? ...............................993 1. how and why is bail set? ..................................................993 2. bail for arrested protestors ...............................................996 b. consequences of inability to pay bail pretrial detentions .......997 c. disparate impact of cash bail ................................................ 1002 d. the need for bail reform ........................................................ 1004 iii. part iii – cash bail and government action to criminalize otherwise lawful protests ............................................................. 1006 a. government’s unconstitutional, disparate use of less than lethal force to quell protests ................................................. 1006 b. cash bail is another disincentive to engage in lawful protesting ................................................................................. 1008 c. cash bail prevents free exercise of first amendment freedoms 1011 iv. part iv – attainable avenues for change ...................................... 1013 a. legislative means for reform .................................................. 1014 b. judicial means for reform ....................................................... 1015 c. executive means for reform .................................................... 1017 d. other means for reform .......................................................... 1017 e. responding to oppositions to reform...................................... 1019 conclusion .............................................................................................. 1021 2024] bailing out the protester 979 introduction protests are a fundamental aspect of progressing societies, acting as catalysts for necessary change. the united states, in particular, is a country that has benefited from protests throughout its existence and has since recognized protesting as protected activity under the first amendment. expressing fundamental freedoms, however, should not risk significant consequences if you do not have access to sufficient financial resources. though many protests are lawful and peaceful, protesters often face arrests, and institutional obstacles exacerbate the consequences of those arrests. more specifically, participating in protests can entail significant risks for those who lack sufficient financial resources to pay their bail amount in the event of their arrest. the protests in akron, ohio between april of 2022 and july of 2023, exemplify this issue. thousands of protesters marched in downtown akron after eight officers fatally shot jayland walker.1 during the demonstrations, akron police used chemical agents on, such as tear gas and pepper spray, and arrested non-violent protesters.2 though the federal judge would later issue an injunction prohibiting the unjustified use of these chemicals,3 the court order did not prohibit wrongfully arresting protesters. despite many of their charges were eventually dropped, the set bail amounts forced many of those arrested to remain in jail until they could pay.4 fortunately, activists, bail funds, and companies got them released generously posted bail on protester’s behalf.5 unfortunately, many people are not as lucky and are unable to pay their bail fees, dissuading constitutional expression of their protest rights.6 unable to afford bail, the arrested protester would have to wait in jail pretrial, joining the over half a million people incarcerated in local jails, most of whom 1 see complete coverage of the jayland walker police shooting in akron, ohio, akron beacon j. (apr. 9, 2023), https://www.beaconjournal.com/story/news/local/2023/04/09/what-happened-to-jaylandwalker-read-about-akron-police-shooting/70007086007/. 2 conor morris, akron police, mayor stand by officers’ use of chemical irritants during jayland walker protest, ideastream (april 22, 2023), https://www.ideastream.org/law-justice/2023-04-22/akron-police-mayor-stand-by-officersuse-of-chemical-irritants-during-jayland-walker-protest. 3 see joint temporary stipulated order, akron bail fund v. city of akron, no. 5:23-cv-837 (n.d. ohio april 21, 2023). 4 doug livingston, what we know about 61 people arrested in july during jayland walker protests in akron, akron beacon j. (sept. 23, 2022), https://www.beaconjournal.com/story/news/crime/2022/09/23/jayland-walker-protestarrests-akron-police/69512399007/. 5 abbey marshall, $50,000 raised to bail out activists jailed during jauland walker protests in akron, akron beacon j. (july 13, 2022), https://www.beaconjournal.com/story/news/2022/07/13/50000-raised-bail-activists-jailedakron-jayland-walker-protests-police-shooting-serve-the-people/10016945002/. 6 see, e.g., katelyn smith, judges reduce bail for 9 people arrested after riot in lancaster following fatal police shooting, wgal (sept. 17, 2020), https://www.wgal.com/article/judges-reduce-bail-for-nine-people-arrested-after-riotfollowing-fatal-police-shooting-in-lancaster/34056851#. 980 colum. j. race & l. [vol. 14:977 simply because they are too poor to pay for their pretrial release.7 while cash bail is used as a collateral guarantee to ensure a defendant’s return to future court appearances,8 its use is felt unevenly.9 as reports demonstrate that black people are arrested at as high as five times the rate as white people,10 it does not come as a surprise that 43% of the pretrial population is black.11 these disparate arrest rates continue in the context of protests, with protesters of color arrested, and later imposed bail, at significantly higher rates than white protesters12––some jurisdictions arresting people of color ten times as often as their white counterparts.13 this article discusses how cash bail dissuades first amendment expression by compounding existing consequences created by government action that also curtails lawful protests. protesting is a constitutionally protected right, but protesting on controversial issues often risks arrest and the subsequent consequences involved with that arrest. such as bail. thus, because the cash bail system increases the potential consequences to arrested protesters––such as higher likelihoods of pleading guilty, losing housing, and damaging an individual’s reputation14––it increases, in tandem, the disincentive provided by the risk of arrest. part i discusses the effect protests have on society and its legal protections. this part also addresses the recent rise in legislation that increases punishments for engaging in certain forms of demonstrations, despite consistent data demonstrating the overwhelming majority of protests remain peaceful. part ii then provides an overview of cash bail, discussing how it works, the consequences involved for those unable to post bail, and disparate impacts involved in the system. part iii connects how cash bail exacerbates the consequences of arresting protesters, emphasizing how disincentives to 7 wendy sawyer & peter wagner, mass incarceration: the whole pie 2023, prison pol’y initiative (march 14, 2023), https://www.prisonpolicy.org/reports/pie2023.html [hereinafter mass incarceration report]. since writing this piece, the prison policy initiative has released a new report, adding data from 2023 and 2024. wendy sawyer & peter wagner, mass incarceration: the whole pie 2024, prison pol’y initiative (march 14, 2024), https://www.prisonpolicy.org/reports/pie2024.html. 8 trujillo v. state, 483 s.w.3d 801, 805–06 (ark. 2016) (noting the purpose of bail is to ensure presence of defendant). 9 see infra section ii(c). 10 pierre thomas, john kelly & tonya simpson, abc news analysis of police arrests nationwide reveals stark racial disparity, abc news (june 11, 2020), https://abcnews.go.com/us/abc-news-analysis-police-arrests-nationwide-revealsstark/story?id=71188546. 11 wendy sawyer, how race impacts who is detained pretrial, prison pol’y initiative (oct. 9, 2019), https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race/. 12 e.g., christian davenport, sarah a. soule & david a. armstrong ii, protesting while black? the differential policing of american activisms, 1960 to 1990, 76 am. sociolog. rev. 152 (2011) [hereinafter protesting while black]. 13 e.g., pierre thomas, john kelly & tonya simpson, abc news analysis of police arrests nationwide reveals stark racial disparity, abc news (june 11, 2020), https://abcnews.go.com/us/abc-news-analysis-police-arrests-nationwide-revealsstark/story?id=71188546. 14 see infra section ii(c). 2024] bailing out the protester 981 protest increase due to the effects of cash bail. lastly, part iv discusses avenues for change, providing attainable ways to reform to ensure that a person’s finances do not determine whether they can exercise their constitutional rights.15 though eliminating bail is the ultimate goal, this final section’s limited measures aim to serve as an incremental step to build public support for more comprehensive reform. i. part 1 – the bedrock right to protest historically, protesting has positively impacted societies, often acting as a catalyst for necessary change. recognizing its importance, countries16 and international organizations17 protect this right in an effort to encourage its expression, collectively understanding that in the absence of protests, significant societal change may not occur. while limited restrictions on protest rights have been rationalized and upheld, obstacles that may otherwise hinder or discourage the right to peacefully protest have not. unfortunately, while the vast majority of protests are peaceful, recent legislation heightens the risks associated with engaging in protests, threatening its future expression. a. rich history of protests for centuries, protests have centered and uplifted the voices of marginalized communities to help effectuate change.18 as one commentator put it, “protests are signals.”19 constituents signal to their officials that they are unhappy and refuse to sit silently and put up with the status quo.20 while it may take time to address the plights involved––as protests do not always present solutions––this should not minimize the impact protests can have. in the same respect, protests are a defining aspect of united states history. in 1773, american colonists protested a tax on tea by throwing several thousand pounds of tea into the boston harbor.21 the “boston tea party” is commonly seen as the first significant protest by american colonist against the british, sparking the first continental congress in 1774, the american revolution beginning in 1775, the declaration of 15 this article is limited in its scope to only address the intersection of protesting and bail, but this is not to qualify the system’s use in other contexts. 16 e.g., art. 31 of the 1987 constitution of the republic of haiti (as amended) (“freedom of unarmed assembly and association for political, economic, social, cultural or any other peaceful purposes is guaranteed.”). for a discussion on how various countries and international bodies recognize and protect protest rights, see alireza nourani-dargiri, the universal effort to curtail protests, 62 univ. louisville l. rev. (forthcoming 2024). 17 e.g., global assessment on protest rights 2022, civicus (2022), https://protestrights2022.monitor.civicus.org/. 18 see patrick manning et al, earliest evidence of social protest, h-net list for world hist. (may 1996), http://www.hartford-hwp.com/archives/20/005.html. 19 zeynep tufekci, do protests even work?, the atlantic (june 24, 2020), https://www.theatlantic.com/technology/archive/2020/06/why-protests-work/613420/. 20 id. 21 boston tea party, encyclopaedia britannica (june 8, 2023), https://www.britannica.com/event/boston-tea-party. 982 colum. j. race & l. [vol. 14:977 independence in 1776, and british recognition of independence in 1783.22 thus, the boston tea party was a powerful catalyst in transforming the colonies into the united states. protesting is not limited to independence movements; it has also proven to be effective in advocating for individual rights, such as women’s suffrage. after nearly sixty years of women fighting for suffrage, more than 5,000 people demonstrated during president woodrow wilson’s inauguration to bring attention to the movement.23 the women’s suffrage parade successfully revived attention around women’s voting rights, leading to seven more years of protests, and the adoption of the nineteenth amendment in 1920.24 had the parade not happened, women’s suffrage may have taken much longer to become a reality. importantly, more general protests have also been fruitful in spurring change. in 1963, approximately 250,000 people gathered to voice their outrage against racial inequalities prevalent in the united states.25 while the focus of this protest is less issue-specific than the boston tea party and the women’s suffrage parade, the “march on washington for jobs and freedom” still effectively brought around necessary reform.26 this protest, the largest civil rights gathering of its time, led to civil rights leaders meeting with president john f. kennedy and vice president lyndon b. johnson, ultimately resulted in the enaction of the civil rights act of 1964.27 as some commentators have noted, protesting is at least as important as voting to spur societal change.28 since studies indicate that only the affluent wield significant influence over policymaking, protesting is one of the primary ways less-wealthy citizens can impact policy.29 lobbying, for instance, can undermine constituents’ ability to receive adequate representation, often “allowing lobbyists to advance the priorities of their wealthy and corporate clients at the expense of the public interest.”30 even if influence through voting was equally accessible, 22 see benhamin l. carp, defiance of the patriots: the boston tea party and the making of america (yale univ. press 2010); see also nicole dudenhoefer, 7 influential protests in american history, ucf today (july 2, 2020), https://www.ucf.edu/news/7-influential-protests-in-american-history/. 23 marching for the vote: remembering the women suffrage parade of 1913, libr. of cong. (sept. 6, 2018), https://guides.loc.gov/american-women-essays/marching-for-thevote. 24 id. 25 march on washington for jobs and freedom, nat’l park serv., https://www.nps.gov/articles/march-on-washington.htm 26 id. 27 id.; see also dudenhoefer, supra note 24. 28 andre m. perry & carl romer, protesting is as important as voting, brookings inst. (aug. 28, 2020), https://www.brookings.edu/articles/protesting-is-as-important-asvoting/. 29 e.g., martin gilens & benjamin i. page, testing theories of american politics: elites, interest groups, and average citizens, 12 perspectives on pol. 564 (2014); martin gilens, affluence and influence: economic inequality and political power in america (princeton univ. press 2012). 30 sam hananel, fighting special interest lobbyist power over public policy, ctr. for am. prog. (sept. 27, 2017), https://www.americanprogress.org/wpcontent/uploads/sites/2/2017/09/lobbyingspecialint-factsheet1.pdf. 2024] bailing out the protester 983 protests can influence voting outcomes.31 protests can successfully drive media coverage, inform public opinion, and catalyze congressional action. change may not happen overnight, but a protest can still have other immediate impacts.32 protests force people to listen to the plights of the marginalized and encourage the necessary dialogue.33 furthermore, protesting can make “an apathetic majority sympathetic to the demonstrators’ cause.”34 without protests, societies would stick to the status quo and not appropriately progress to make their communities better. admittedly, while protests can inspire positive change, they can also have a negative impact on public opinion or result in reactionary backlash to protest demands. particularly when a protest is perceived as violent, “people may perceive them as less reasonable[,] . . . lead people to identify with them less, and ultimately become less supportive.”35 largely, however, research seems to refute that stance. coupled with research that demonstrates “news organizations have struggled to accurately and fairly portray protests that challenge the political and societal status quo,”36 studies continue to validate that protests can lead to meaningful change.37 b. the protected right to protest governments also regularly seek to protect the right to protest. internationally, the 1966 international covenant on civil and political rights articles 18 to 22 enumerate how protests are a human right. “everyone shall have the right to freedom of thought,”38 “to hold opinions without interference,”39 and to peacefully assemble in which “[n]o restrictions may be placed on [their] exercise.”40 additionally, the u.n.’s human rights committee has further interpreted this right in its general comment no. 37.41 in addition to providing a comprehensive overview on 31 daniel q. gillion, why protests matter in american democracy, princeton univ. press (june 02, 2020), https://press.princeton.edu/ideas/why-protests-matter-in-americandemocracy. 32 see mae cromwell 7 times that protests changed u.s. history, aspen inst. (dec. 15, 2016), https://www.aspeninstitute.org/blog-posts/7-times-protests-changed-us-history/. 33 keith allen, understanding protests: the importance of meaningful dialogue, 36 aba j. (2021), https://www.americanbar.org/groups/communications_law/publications/communications_la wyer/fall2020/understanding-protests-importance-meaningful-dialogue/. 34 omar wasow, agenda seeding: how 1960s black protests moved elites, public opinion and voting, 114 am. pol. sci. rev. 638 (2020). 35 melissa d. witte, violence by protesters can lead the public to support them less, stanford sociologist says, stan. news (oct. 12, 2018), https://news.stanford.edu/2018/10/12/how-violent-protest-can-backfire/. 36 d.k. brown & s. harlow, protests, media coverage, and a hierarchy of social struggle, 24 int’l j. of press/pol. 508, 509 (2019). 37 see, e.g., belinda archibong, tom moerenhout & evans osabuohien, protest matters: the effects of protests on economic redistribution, brookings glob. working paper (april 2022). 38 international covenant on civil and political rights, dec. 16, 1966, art. 18, 6 i.l.m. 368, 999 u.n.t.s. 171. 39 id. at art. 19. 40 id. at art. 21. 41 human rights committee, general comment no. 37, u.n. doc. ccpr/c/gc/37 (sept. 17, 2020). 984 colum. j. race & l. [vol. 14:977 the importance of the right, the human rights committee discusses state responsibility to codify, promote, and protect the right to protest.42 domestic law must recognize the right of peaceful assembly, clearly set out the duties and responsibilities of all public officials involved, be aligned with the relevant international standards[,] and be publicly accessible. states must ensure public awareness about the law and relevant regulations, including any procedures to be followed by those wishing to exercise the right, who the responsible authorities are, the rules applicable to those officials, and the remedies available for alleged violations of the rights.43 furthermore, in instances of alleged violations, the u.n.’s office of the high commission on human rights has a mandate to “promote and protect the right of peaceful assembly.”44 more regional international bodies have also clearly defined these rights to ensure that protest rights are codified, promoted, and protected in every country in those regions.45 similarly, the united states protects the right to protest in its constitution. while there is no specific mention of “protest,” the u.s. constitution’s first amendment provides “congress shall make no law . . . abridging the freedom of speech . . . or the right of people peaceably to assemble, and to petition the government for a redress of grievances.”46 therefore, the right to protest is found in the manifestation of the rights to speech, assembly, and petition. in fact, the u.s. supreme court recognizes “the right to peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. . . . [o]ne that cannot be denied without violating those fundamental principles which lie at the base of all civil and political institutions.”47 recognizing the importance of protesting, many institutions seek to keep governments accountable for protecting protest rights. outside the u.s., nongovernmental agencies such as human rights watch and amnesty international document and report instances where the right has been abridged in order to put pressure on individual governments.48 domestically, groups like the american civil liberties union will take a similar approach, but will also take further action in providing public 42 id. 43 id. 44 ohchr and the right of peaceful assembly, u.n. hum. rts. off. of the high comm’r, https://www.ohchr.org/en/peaceful-assembly. 45 see, e.g., european convention on human rights, arts. 9–11, sept. 4, 1950, 213 u.n.t.s. 222. 46 u.s. const. amend. i. 47 jonge v. state of oregon, 299 u.s. 353, 364 (1937). 48 e.g., usa: rights expert decries wave of anti-protest laws ‘spreading through the country,’ un news (may 5, 2021), https://news.un.org/en/story/2021/05/1091322; protect the protest, amnesty int’l, https://www.amnesty.org/en/what-we-do/freedom-ofexpression/protest/; the enduring power of protest, hum. rts. watch, https://www.hrw.org/news/2019/12/09/enduring-power-protest. 2024] bailing out the protester 985 information about protest rights, as well as filing lawsuits on behalf of people who have had their rights violated.49 in response to those lawsuits, courts consistently protect this right in the face of violations or unlawful restrictions. specifically, the judicial system found first amendment freedoms to be “delicate and vulnerable, as well as supremely precious in our society.”50 in a case concerning a statute that could abridge first amendment expression, the court held that even the threat of sanction was improper “[b]ecause first amendment freedoms need breathing space to survive.”51 governments, therefore, may only regulate with “narrow specificity.”52 this applies to protests’ speech and conduct. while protests are not unconditionally protected, any restrictions on how its expression must be content-neutral, fairly administered, and be narrowly tailored to achieve a governmental interest. for instance, the first amendment does not protect speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”53 this is different from speech made in the heat of the moment, because it is not a “serious” expression of an intent.54 further, mere advocacy of lawbreaking or violence remains protected speech as long as it is not intended to, and unlikely to provoke, immediate unlawful action.55 similarly, expressive conduct, also referred to as symbolic speech, have similar protections. while different that verbal speech, symbolic speech is sufficiently imbued with elements of communication that qualifies to receive first amendment protection.56 non-expressive conduct, however, does not receive first amendment protection because it is not sufficiently imbued with elements of communication that would convey a message.57 49 know your rights, aclu, https://www.aclu.org/know-your-rights/protestersrights; aclu of hawaii filed federal lawsuit on behalf of peaceful protesters, aclu (aug. 8, 2006), https://www.aclu.org/press-releases/aclu-hawaii-files-federal-lawsuit-behalfpeaceful-protesters. 50 naacp v. button, 371 u.s. 415, 433 (1963). 51 naacp v. button, 371 u.s. 415, 433 (1963). similarly, true threats are also not protected. true threats are “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” virginia v. black, 538 u.s. 343 (2003). the speaker “need not actually intend to carry out the threat.” id. 52 naacp v. button, 371 u.s. 415, 433 (1963), citing cantwell v. connecticut, 310 u.s. 311 (1940). 53 brandenburg v. ohio, 395 u.s. 444, 447 (1969). 54 see watts v. united states, 394 u.s. 705 (1969) (holding that political hyperbole is not a true threat). 55 see brandenburg v. ohio, 395 u.s. 444, 447 (1969). 56 for instance, the u.s. supreme court has found first amendment protection for wearing an armband at school to protest a war as well as upholding the ability to burn the u.s. flag. tinker v. des moines indep. sch. dist., 393 u.s. 503 (1969); texas v. johnson 491 u.s. 397 (1989). interestingly, the supreme court upheld, however, a governmental prohibition against burning draft cards stating it was justified to maintain an efficient and effective military draft system. united states v. o’brien, 391 u.s. 367 (1968). 57 for instance, engaging in property damage, while it could be part of an otherwise justified protest, does not convey a message that can be understood by the listeners. wisconsin v. mitchell, 508 u.s. 476 (1993) (holding physical assault of another person is not expressive 986 colum. j. race & l. [vol. 14:977 governments may, however, place limitations based on the manner in which the speech is made.58 in cox v. new hampshire, the u.s. supreme court upheld the convictions for parading without a permit because permits were a valid time, place, and manner restriction.59 there, the court stressed that the regulations were set to create order and safety for the community, rather than restrict the protest’s content.60 additionally, the regulation had no opportunity to wield undue or arbitrary power, nor was there evidence that the statute had been administered unfairly.61 thus, the court found the regulation’s limited, content-neutral scope did not infringe on constitutional rights. similarly, in heffron v. international society for krishna consciousness, the court upheld a state’s prohibition against selling or distributing written material at a state fair except from designated, fixedlocation booths.62 the society for krishna consciousness challenged the regulations, arguing it violated their first amendment rights because krishna religious doctrines commanded its members to go out into public spaces.63 still, the court upheld the regulation, ruling that since the regulations applied equally, didn’t restrict based on content, and the state had an important interest in protecting the safety of the fair’s patrons, it was a valid time, place, and manner restriction.64 in ward v. rock against racism, the court held that the government does not need to choose the least restrictive alternative65 in imposing time, place, and manner restrictions.66 after receiving highdecibel complaints, new york city mandated the use of city-provided sound systems and technicians for all concerts in central park.67 rock groups challenged this mandate, claiming the inability to use their own sound equipment and technicians in a public forum interfered with their first amendment rights.68 again, the court upheld the mandate, giving broad deference to the government’s interest in protecting citizens from unwelcome and excessive noise.69 as long as “the means chosen are not substantially broader than necessary to achieve the government’s conduct). see also spence v. washington, 418 u.s. 405, 409–11 (1974) (protecting protects expressive conduct so long as that conduct conveys a particularized message and is likely to be understood in the surrounding circumstances). 58 such restrictions come in many forms, such as imposing limits on noise levels, permit requirements, capping the number of protesters who can occupy an area, barring early-morning or late-evening demonstrations, and even restricting the size or placement of signs on government property. kevin francis o’neill, time, place and manner restrictions, first amend. encyclopedia, https://www.mtsu.edu/first-amendment/article/1023/time-placeand-manner-restrictions; see, e.g., ward v. rock against racism, 491 u.s. 781 (1989). 59 cox v. new hampshire, 312 u.s. 569, 576 (1941). 60 id. at 574. 61 id. at 577. 62 heffron v. int’l soc’y for krishna consciousness, 452 u.s. 640 (1981). 63 id. at 645. 64 id. at 649–50. 65 meaning, the option for government response that would restrict the constitutional rights the least. 66 ward v. rock against racism, 491 u.s. 781 (1989). 67 id. at 787. 68 id. at 781. 69 id. at 782–83. 2024] bailing out the protester 987 interest,” the regulation is a valid time, place, and manner restriction.70 the government’s regulation need not be the least-speech-restrictive.71 but again, the restrictions must be content neutral. even when an ordinance limiting speech is on its face neutral, cases have found government action unconstitutional if, as applied, an ordinance led to an unequal freedom of expression.72 in police department of the city of chicago v. mosely, the court unanimously held that carving out exemptions for a picketing prohibition was unconstitutional because it violated the equal protection clause.73 chicago’s ordinance prohibited picketing within 150 feet of a school during school hours, except for peaceful labor picketing.74 mosely, who had been picketing near a high school protesting “black discrimination,” challenged the city’s ordinance on first amendment and equal protection grounds.75 the court agreed with mosely, ruling the regulation exemption limited other speech based on its content.76 furthermore, protesting rights are not checked at the door77 simply because there is a “desire to avoid the discomfort and unpleasantness that accompany an unpopular viewpoint.”78 governments cannot “seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”79 as the court has expressed, in public debate, insulting and even outrageous speech must be tolerated, in order to provide adequate breathing space to the freedoms protected by the first amendment.80 “speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”81 arguably, this principle can go as far as protecting protesters who cause emotional harm to listeners. in snyder v. phelps, the court held that the first amendment shielded protesters who picketed signs––such as “thank god for dead soldiers”––outside a deceased marine’s funeral.82 even though some of the signs appeared to target only the deceased’s family, the “overall thrust and dominant theme” of the speech related to broader public issues making it public speech protected under the first 70 id. at 800. 71 id. at 797; see also williams-yulee v. florida bar, 575 u.s. 433 (2015). 72 police department of the city of chicago v. mosely, 408 u.s. 92, 100 (1972.) 73 id. at 94–95. 74 id. at 94. 75 id. at 93. 76 id. at 98. 77 see tinker v. des moines independent community school district, 393 u.s. 503, 506 (1969) (“it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”) 78 id. at 509 (1969) 79 cohen v. california, 403 u.s. 15, 26 (1971) 80 snyder v. phelps, 562 u.s. 443, 458 (2011) (citing boos v. barry, 485 u.s. 312, 322 (1988)) (“such a risk is unacceptable; ‘in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the first amendment.”) 81 matal v. tam, 582 u.s. 218, 246 (2017), citing united states v. schwimmer, 279 u.s. 644, 655 (1929) (holmes, j., dissenting). 82 snyder v. phelps, 562 u.s. 443, 458 (2011). 988 colum. j. race & l. [vol. 14:977 amendment.83 furthermore, while speech may have been upsetting, the court was unable to find any evidence that it interfered with the funeral.84 thus, even offensive, hurtful speech is protected under the first amendment.85 in sum, protests are largely protected, even if they are controversial. while some limitations exist, government restrictions cannot be used to censor certain messages or make first amendment rights a freedom for a particular demographic or socioeconomic status. c. overwhelmingly peaceful protests when discussing restricting protests, a common argument is that non-peaceful protests are not protected. protests that cease to be peaceful fall outside the bounds of constitutional protection. in those instances, courts have reaffirmed those protests are illegal because they fall out of permissible first amendment protections and could be subject to government action that restrict speech such as arresting people at those protests. still, those instances remain the exception, not the rule.86 traditionally, protest movements avoided liability if the demonstrations were largely peaceful, even if some acts and threats of violence occurred. in naacp v. claiborne hardware, the naacp launched a boycott to promote equality and racial justice by nonviolent picketing, but some acts and threats of violence also occurred.87 merchants sued the naacp for damages to their businesses as a result of the boycott, particularly after some unintended violence occurred.88 the court held that the naacp was not liable for the damages on the grounds that when acts of violence are committed in conjunction with lawful expression, regulations can impose damages only upon those who are guilty of the wrongful conduct.89 this principle, however, may be on its way out. in doe v. mckesson, the fifth circuit recently held that a protest leader can be sued, and therefore be found liable, for violence caused by other people at the protest.90 “mckesson directed the protest at all times, and when demonstrators looted a grocery store for water bottles to throw at the assembled police officers, he did nothing to try to discourage this.”91 therefore, the fifth circuit held that mckesson “knew, or should have known, that violence would likely ensue,” meaning mckesson could be sued 83 id. at 454. 84 id. at 460. 85 id. at 461. 86 see infra note 96. 87 naacp v. claiborne hardware co., 458 u.s. 886, 904–06 (1982). 88 id. at 930 (noting that while some isolated incidents of violence occurred, the record does not support that any naacp member “had actual or apparent authority to commit acts of violence or to threaten violent conduct.”). 89 id. at 924–25. 90 doe v. mckesson, 71 f.4th 278 (5th cir. 2023). 91 id. at 281–82. 2024] bailing out the protester 989 for the actions of an unidentified protester who struck and injured a police officer.92 while media coverage tends to amplify more violent protests and the damage they cause,93 most protests remain peaceful. for example, in a study researching the black lives matter movement, the armed conflict location & event data project found the protests “remained overwhelmingly non-violent.”94 “approximately 94% of all pro-blm demonstrations have been peaceful.”95 of the 6% that involved reports of violence, it “is not clear who instigated the violent or destructive activity.”96 while some of those violent instances involved the demonstrators, other events were a result of escalation from aggressive government action and violent intervention from counter-protesters.97 other research has reached similar conclusions, finding the overwhelming majority of protests are nonviolent.98 this is not to discount the effect that non-peaceful protests have had on society. while the overall ethos of the civil rights movement was peaceful protesting, the catalyst of tangible change was arguably the violence that brought it worldwide attention such as the riots that occurred after the assassination of dr. king.99 because non-peaceful protests often make headlines, they are better able to reach wider audiences that can influence policy and effect change. even though the immediate public reaction to non-peaceful protests may be negative,100 studies demonstrate 92 id. at 281. 93 e.g., capital insurrection updates, npr, https://www.npr.org/sections/insurrection-at-the-capitol; anjuli sastry krbechek & karen grigsby bates, when la erupted in anger: a look back at the rodney king riots, npr (apr. 26, 2017), https://www.npr.org/2017/04/26/524744989/when-la-erupted-in-anger-a-lookback-at-the-rodney-king-riots. 94 a year of racial justice protests: key trends in demonstrations supporting the blm movement, the armed conflict location & event data project 1 (may 2023), https://acleddata.com/acleddatanew/wp-content/uploads/2021/05/acled_report_a-yearof-racial-justice-protests_may2021.pdf [hereinafter acled report]. 95 id. 96 id. 97 id. at 6. 98 see id; global protest tracker, carnegie endowment for int’l peace (aug. 2, 2023), https://carnegieendowment.org/publications/interactive/protest-tracker; catherine caruso & count love, count love project reveals protest patterns, the brink (nov. 15, 2017), https://www.bu.edu/articles/2017/countingamerican-protests/. 99 emily arntsen, are peaceful protests more effective than violent ones?, northeastern glob. news (june 10, 2020), https://news.northeastern.edu/2020/06/10/arepeaceful-protests-more-effective-than-violent-ones/. 100 melissa de witte, violence by protesters can lead the public to support them less, stanford sociologist says, stanford news (oct. 12, 2018), https://news.stanford.edu/2018/10/12/how-violent-protest-can-backfire/. 990 colum. j. race & l. [vol. 14:977 public attitudes to even violent protests look better in hindsight,101 resulting in a net positive effect.102 d. recent legislation attempting to curtail lawful protests by raising costs recent legislation attempts to expand regulation of otherwise lawful, peaceful activity. these regulations dissuade protesters by making protest rights expensive to express. “individuals and groups involved in organizing, participating in, and supporting protest actions, including some of the racial justice and police brutality demonstrations, are subject to a range of civil costs and liabilities.”103 these costs––increasing fines and penalties, expanding definitions of what is considered a “riot,” and expanding liability for protesters while decreasing liability for harm against protesters––largely fly under the radar.104 administratively, permit fees, policing fees, cleanup costs, and liability insurance requirements can easily amount to “[several] thousands of dollars even for mid-size events.”105 some bills create large penalties for protest-related offenses. for instance, a 2020 law enacted in tennessee makes obstructing a sidewalk or street––where most protests occur––an offense punishable by a year in jail.106 others, criminalize attributes that would make a protest difficult to express. for instance, under a new louisiana law, demonstrators who trespass near a pipeline construction site could face five years in prison.107 this law came into effect a mere months after a lawsuit was filed to block louisiana’s bayou bridge pipeline.108 thus, this law would make it 101 going too far: the american public’s attitudes toward protest movements, roper ctr. (oct. 22, 2014), https://ropercenter.cornell.edu/going-too-far-american-publicsattitudes-toward-protest-movements (noting complicated feelings toward protests. for instance, polls suggest that americans are skeptical about protests, but are also quite supportive of protests overseas. furthermore, americans viewed previously unpopular protest movements more favorably as time passed.). 102 see soumyajit mazumder, the persistent effect of u.s. civil rights protests on political attitudes, 62 am. j. of pol. sci. 922, 925 (oct. 2018) (suggesting that violent protests may catalyze institutional change even where they have a negative impact on public opinion); but see bret simpson et al., does violent protest backfire? testing a theory of public reactions to activist violence, 4 socius 1, 12 (2018) (suggesting that violence at protests by white nationalist protesters has a negligible effect on public opinion because the public already views them as violent, while violence by antiracist counter-protesters against white nationalists has a negative effect on public opinion). 103 timothy zick, the costs of dissent: protest and civil liabilities, 89 geo. wash. l. rev. 233, 235–36 (2021). 104 see acled report, supra note 96 at 18. 105 zick, supra note 105 at 236. 106 h.b. 8005, 111th gen. assemb., 2d extraordinary sess. (tenn. 2020). 107 h.b. 727, 2018 leg., reg. sess. (la. 2018) (amending the criminal law relating to offenses against critical infrastructure to explicitly include “pipelines”). 108 mark schleifstein, environmental groups sue corps to block bayou bridge pipeline permit, nola.com (jan. 11, 2018), https://www.nola.com/news/environment/environmental-groups-sue-corps-to-block-bayoubridge-pipeline-permit/article_dbb295f4-afdb-5390-9097-cb627ca3fca3.html. mere months later the law went into effect. la. stat. ann. § 14:61.1. 2024] bailing out the protester 991 impossible to legally engage in first amendment expression if the protest concerns pipelines.109 legislatures have also expanded definitions of what constitutes a “riot” to capture peaceful protesters who do not engage in violence themselves but are simply perceived to “threaten” violence.110 for instance, under florida law, no actual property destruction needs to occur for those in a crowd to be guilty of “rioting.”111 simply, the “imminent danger” of damage is sufficient, giving broad discretion to police and prosecutors to determine what that means.112 in ohio, legislators attempted to further expand the definition of a riot to include “recklessly caus[ing] inconvenience [or] annoyance,” not one that ends in violence.113 while this bill did not ultimately pass, similar bills have also been introduced,114 indicating that legislators are entertaining greater hostility115 towards protesters. other novel claims are currently making their way through the courts that, if accepted, would further curb protest rights. for example, the organizers of the “unite the right” protests in charlottesville, virginia are being sued under a “conspiracy to protest” theory. under this theory, it would be an actionable civil wrong for anyone to organize a lawful protest at which violent activity later occurred.116 many bills are attempting to use this theory, expanding liability for groups and organizers who may not have even attended the protest in question.117 this includes in the bail context. for example, georgia’s senate passed a bill outlawing bail funds for protest groups.118 this bill would require any charitable individual or group to register as, and meet the requirements of, a bail bond company.119 not only does law enforcement have the ability to deny who registers as a bondsman, but the bill also would limit the number of people an individual or group could bail out every year.120 while the bill has not yet become law, 109 perhaps unsurprisingly, this law was a subject of a lawsuit arguing it is an unconstitutional restriction of first amendment rights. see white hat v. landry, no. 6:20cv-00983, 2023 wl 3854717 at *6 (w.d. la. june 5, 2023). 110 e.g., c.s./h.b. 1, 2021 leg. (fla. 2021). 111 id. 112 id. 113 h.b. 784, 133rd gen. assemb., reg. sess. (ohio 2020). this would necessarily include most protests that divert traffic routes, increase noise levels, and dominate news stories. 114 s.b. 33, 133rd gen. assemb., reg. sess. (ohio 2021) (increasing and enhancing penalties for criminal violations commonly connected to protesting). 115 some reports indicate that these laws would encourage people to attend protests armed to harm protesters. see h.b. 784, supra note 115 (allowing people “escaping a riot” to use force, including deadly force). 116 see sines v. kessler, 324 f. supp. 3d 765, 773 (w.d. va. 2018). 117 see u.s. protest law tracker, int’l ctr. for not-for-profit l., https://www.icnl.org/usprotestlawtracker/. 118 s.b. 63, 2023 leg., reg. sess. (ga. 2024). 119 id. 120 id. 992 colum. j. race & l. [vol. 14:977 similar arrests have already occurred in georgia after activists bailed out protesters.121 to be clear, while this article discusses the consequences connected with cash bail, damage awards resulting from civil causes of actions also represent a particularly concerning threat to protests.122 in addition to incurring liability under a variety of torts claims including nuisance, trespass, defamation, and interference with business relations, organizers can also be held liable for harms simply because a particular action is “foreseeable.”123 similar to the tactic in mckesson,124 this “negligent protest” theory would make protest organizers liable for all foreseeable damages that occurred during the protest, including those caused by unplanned or unintended actions as well as unlawful acts of counter-protesters and agitators not associated with the organizer’s protest.125 the consequences of protesting may extend beyond the act of protesting itself. school children may face discipline for off-campus protest activities,126 and university students may face disciplinary measures, including expulsion, for engaging in “disruptive” protests on or off campus.127 public employees may face termination or other adverse consequences for participating in public protests and other protest activities.128 furthermore, these bills have also created protections for individuals who harm protesters. in 2020 alone, there were over one hundred instances of protesters being hit by vehicles.129 these laws, however, shield those the drivers from civil liability if the protester was seen to “unlawfully” block a road during a protest, so long as the driver was exercising “due care.”130 121 kate brumback, bond granted for 3 activists whose fund bailed out people protesting atlanta ‘cop city’ project, ap news (june 2, 2023), https://apnews.com/article/police-training-center-arrests-cop-city1468a138ed4b17ed394e4b1e4fe202fe (“stop cop city” activists were arrested on charges of “charities fraud and money laundering” for leading the bail fund). 122 see generally zick, supra note 105 (outlining the chilling effects on speech associated with civil penalties and fines incurred by protesters). 123 for an in-depth discussion, see zick supra note 105; see also doe v. mckesson, 71 f.4th 278 (5th cir. 2023). 124 see doe v. mckesson, 71 f.4th 278, 284 (5th cir. 2023) (concluding that the first amendment does not prohibit holding protesters liable for organizing protests in a manner that makes violent police response “reasonably foreseeable”). 125 zick, supra note 105 at 237–38. 126 morse v. frederick, 551 u.s. 393 (2007). 127 gregory p. magarian, when audiences object: free speech and campus speaker protests, 90 u. colo. l. rev. 551 (2019). 128 see anne barnard, teachers in new york city barred from attending climate protest, n.y. times (sept. 19, 2019), https://www.nytimes.com/2019/09/19/nyregion/youthclimate-strike-nyc.html. 129 grace hauck, cars have hit demonstrators 104 times since george floyd protests began, usa today (july 9, 2020), https://www.usatoday.com/story/news/nation/2020/07/08/vehicle-ramming-attacks-66-ussince-may-27/5397700002/. 130 e.g., s.f. 342, 89th gen. assemb. (iowa 2021); see also anti-protest laws in the united states, first amend. watch, https://firstamendmentwatch.org/deep-dive/statesrush-to-pass-anti-protestor-laws/. 2024] bailing out the protester 993 scholars have noted that, on their own, increasing “costs and liabilities on first amendment protest rights” amount to a chilling effect on those rights.131 “even if protesters plan to engage in only lawful conduct, they may still fear being caught up in legal action that can be costly to defend against and which could result in uncertain legal outcomes.”132 expanding this body of research, the following sections demonstrate bail is an additional, significant consequence for lawful protesting, serving as yet another disincentive to lawful protesting.133 ii. part ii – cash bail’s disparate impact on marginalized communities generally, cash bail––also known as bond––is the process in which arrested people must pay a certain monetary amount in exchange for pretrial release. unfortunately, while a large percentage of arrested people go through this process, the impact of the cash bail system is not felt evenly and disparately affects poorer communities and people of color. for those unable to pay bail, they must remain in jail until their trial, enduring consequences associated with their employment, housing, and even parental rights. because these consequences can dramatically alter a person’s life, bail is responsible for eliciting guilty pleas from those who otherwise would not plead. unfortunately, despite calls for reform, bail continues to dominate pretrial systems. a. what is cash bail and how does it work? cash bail is a collateral guarantee that a defendant will return for their future hearings and trial.134 the defendant pays a sum of money to be released from jail that is to be returned after they make all necessary court appearances. otherwise, the government will keep their bail amount and incarcerate defendants pretrial.135 in theory, this process should be quick, taking about twenty-four to forty-eight hours between arrest to potential release on bail.136 1. how and why is bail set? bail is set for two reasons: (1) the court is concerned the defendant poses a significant risk to the community; or (2) the court is concerned that the defendant will not appear for their trial. therefore, the primary concerns when setting bail are whether the bail amount will ensure public 131 zick, supra note 105 at 240. 132 nick robinson & elly page, protecting dissent: the freedom of peaceful assembly, civil disobedience, and partial first amendment protections, 107 cornell l. rev. 229, 252 (2022). 133 sample footnote text 134 see, e.g., adureh onyekwere, how cash bail works, brennan ctr. for just. (feb. 24, 2021), https://www.brennancenter.org/our-work/research-reports/how-cash-bailworks. 135 id. 136 see, e.g., n.j. rev. stat. § 2c:25-26 (2023) (“bail shall be set as soon as is feasible, but in all cases within 24 hours of arrest.”); walker v. city of calhoun, 901 f.3d 1245, 1252– 53, 1262, 1266 n.12 (11th cir. 2018) (discussing a standing order that guarantees bail would be set within forty-eight hours); see also protesters: know your rights, aclu, https://www.acluohio.org/en/protesters-know-your-rights#keepinmind (“the whole process, from arrest to release on bail, should take about 24–36 hours.”). 994 colum. j. race & l. [vol. 14:977 safety and is reasonably calculated to ensure the defendant’s appearance at trial.137 allegedly, these justifications relate to two main benefits. first, pretrial detention reduces the likelihood that defendants will fail to make court appearances, thereby preventing wasted judicial resources.138 additionally, pretrial detention reduces the likelihood of new criminal legal system involvement, “prevent[ing] detained individuals from participating in crime while they are detained.”139 accordingly, pretrial detention can act as a preventative measure for high-risk defendants, particularly in terms of flight and recidivism.140 cash-bail-setting practices are not a uniform practice. the amount that a person must pay depends on their situation, but “the bail setting process can often be hard to comprehend.”141 technically, judges have broad discretion to raise, lower, deny, or even waive bail.142 accordingly, that discretion will look at the severity of the crime,143 whether the defendant has employment or personal connections in the area,144 criminal history and past court appearances,145 and the perceived impact the defendant has on public safety.146 conveniently, however, bail is sometimes set using “bail schedules.” these schedules impose a standard bail amount that correlates to a particular offense. for example, ohio’s warren county follows a “uniform bond schedule,” delineating the particular fine that the court imposes for particular crimes.147 under this schedule, an m-1 misdemeanor carries with it a $12,500 bond.148 importantly, while this schedule follows some of the underlying considerations such as more serious crimes receive higher bail amounts, the schedule does not mention the factors to be considered in 137 john-michael seibler, as bail reform progresses, yes, bail is constitutional, federalist soc’y (nov. 22, 2017), https://fedsoc.org/commentary/fedsoc-blog/as-bail-reformprogresses-yes-bail-is-constitutional. 138 sandra susan smith, pretrial detention, pretrial release, & public safety, arnold ventures (july 2022), at 4. 139 id. 140 id. at 5. 141 e.g., how judges calculate and set bail, all city bail bonds, https://www.allcitybailbonds.com/2017/12/judges-calculate-set-bail/. 142 nicholas p. johnson, cash rules everything around the money bail system: the effect of cash-only bail on indigent defendants in america’s money bail system, 36 buff. pub. int. l.j. 29, 31 (2019). 143 minor crimes usually have lower bail amounts compared to severe crimes. id. at 51. 144 id. at 52–53. 145 judges will often raise the amount for those who have prior convictions or missed appearances id. 146 if the court believes the defendant poses a risk to public safety, they are likely to increase or deny bail. id. at 48. 147 warren county court bond schedule, warren county court (april 4, 2023), https://www.co.warren.oh.us/countycourt/forms/bondschedule.pdf. 148 id. 2024] bailing out the protester 995 setting bail, nor that there is the discretion to raise, lower, or waive the bail amount listed on the schedule.149 in practice, judges use both bail schedules and their own discretion in setting bail. the bail schedules would allow defendants to post bail with the police before they go for their first court appearance with the judge.150 then, at the hearing, the judge has the discretion to alter the amount, considering the facts to raise, lower, deny, or waive bail.151 thus, the “bail schedule pertains to release of alleged offenders prior to first appearance, when a judge . . . may increase or decrease/eliminate the amount of bail.”152 modern technology, however, can significantly influence on the way bail is set.153 in some areas of the country, a computer program can quickly determine what an “appropriate” bail amount for a defendant would be, incorporating the defendant’s criminal history, age, type or crime, and assessment of a flight risk.154 unfortunately, research finds these algorithms may have racist implications of their own.155 thus, bail amounts can vary from jurisdiction to jurisdiction, meaning there is no true uniform bail practice. in fact, an individual’s ability to pay their bail amount can mean the difference between getting arrested in a particular county or being assigned to a particular judge.156 a 2018 report on the bail-setting practices in new york city demonstrated this predicament.157 analyzing felony arraignments in 2017 handled by the legal aid society in kings, new york, bronx, queens, and richmond counties, the report described the frequency in which each judge either imposed bail, held without bail, or released without bail.158 the results demonstrated that each county, as well as each judge in each jurisdiction, imposed bail at a different rate, even for the same crime.159 when bail was imposed, the amount also differed.160 finally, the report demonstrated that 149 see id. 150 bail schedules, justia, https://www.justia.com/criminal/bail-bonds/bailschedules/. 151 id. 152 see, e.g., bail schedule – flager, putnam, nt. johns & volusia counties, seventh judicial cir. of florida, https://circuit7.org/administrative%20orders/criminal/bail_schedule.pdf. 153 see generally ric simmons, big data machine judges, and the legitimacy of the criminal justice system, 52 u.c. davis l. rev 1067 (2018) (discussing the increasing use of predictive algorithms to assist in bail hearings); samuel r. wiseman, pretrial detention and the right to be monitored, 123 yale l.j. 1344 (2014) (suggesting electronic monitoring as an alternative to pretrial detention and the bail system). 154 simmons, supra note 154 at 1074. 155 see ember mccoy, the risks of pretrial risk assessment tools: policy considerations for michigan, ford sch. of pub. pol’y (may 2023) (finding “substantial evidence that pretrial risk assessment tools replicate the racial and socioeconomic disparities that bail reform seeks to address.”). 156 anna maria barry-jester, you’ve been arrested. will you get bail? can you pay it? it may all depend on your judge, fivethirtyeight (june 19, 2018), https://fivethirtyeight.com/features/youve-been-arrested-will-you-get-bail-can-you-pay-it-itmay-all-depend-on-your-judge/. 157 id. 158 id. 159 id. 160 id. 996 colum. j. race & l. [vol. 14:977 new york city is not unique, illustrating similar results from judges in buffalo, new york, hinting that the same results could be found around the country.161 while judicial discretion is sometimes necessary, the expansive nature of discretion when setting bail leads to an inequitable practice in what should be a uniform system 2. bail for arrested protesters arrested protesters are not exempt from this system––they are also subject to bail as a condition of pretrial release. protests are uniquely fraught with wrongful arrests and dropped charges, but arrests of protesters largely continue undeterred. while there are many reasons as to why a protester may be arrested, certain charges appear more commonly than others: unlawful assembly, trespassing, obstruction of pedestrian or vehicular traffic, and charges related to rioting.162 largely, protesters do not face felony charges.163 those that do, however, involve protests around race and police brutality.164 while prosecutors often drop or reduce those felony charges,165 protesters were still arrested for serious charges that have excessive bail amounts.166 research shows that protesters of color can expect increased police interactions including being arrested at disparate rates. in a study discussing the demographics of new york city arrestees during the 2020 george floyd protests, black protesters were arrested at a staggeringly “lopsided” rate.167 analyzing demographic data from arrested protesters found “about half of the arrestees were identified as white and the other half as black.”168 considering that the 2020 george floyd protests were racially diverse, and accounting for the fact that “black people do not compose even close to half of the u.s. population,” there is a “lopsided racial 161 id. 162 see, e.g., meryl kornfield et al., swept up by police, wash. post (oct. 23, 2020), https://www.washingtonpost.com/graphics/2020/investigations/george-floyd-protestersarrests/ (reviewing data of over 2,600 people detained in fifteen cities, most of whom were arrested for unlawful conduct such as a curfew violation or resisting police orders). 163 see id. (“the post’s analysis found the overwhelming majority arrested in those 15 cities—2,059 of the 2,652—were accused of nonviolent misdemeanors, most on charges of violating curfew or emergency orders.”). 164 see protesting while black, supra note 14 at 163 (finding protests involving primarily black people are more likely to be policed); see also jacey fortin & allyson waller, 87 face felony charges after protesting breonna taylor’s death, n.y. times (july 17, 2020), https://www.nytimes.com/2020/07/15/us/protesters-arrested-breonna-taylor-kentucky.html. 165 e.g., akela lacy, protesters in multiple states are facing felony charges, including terrorism, the intercept (aug. 27, 2020), https://theintercept.com/2020/08/27/black-lives-matter-protesters-terrorism-felony-charges/. three days after police arrested eighty-seven activists protesting the death of breonna taylor, the district attorney dropped the felony charges, leaving open the possibility of bringing misdemeanor charges in the future. 166 see, e.g., natasha lennard, how the government is turning protesters into felons, esquire (apr. 12, 2017), https://www.esquire.com/news-politics/a54391/how-thegovernment-is-turning-protesters-into-felons/. 167 karen j. pita loor, an argument against unbounded arrest power: the expressive fourth amendment and protesting while black, 120 mich. l. rev. 1581, 1606 (june 2022). 168 id. 2024] bailing out the protester 997 breakdown of arrests.”169 combined with studies that find disparate treatment in policing in general, the study suggest that “protest policing– –like traditional policing––disparately harms black people and that such harms result in black individuals enjoying an unequal (in)ability to express and practice dissent.”170 regrettably, these results mirror studies analyzing protests from earlier decades. in a study analyzing protests from 1960 to 1990, “a greater proportion of african american protest events were met with police presence than were white events.”171 some years included large disparities. for example, in 1967, “70 percent of african american events had police present at them, while only 42 percent of white events did.”172 perhaps unsurprisingly, the study also showed that police were more likely to arrest, use force or violence, and make arrest using force or violence against protesters of color, even after “control[ing] for measures of behavioral threat.”173 the researchers’ statistical analyses concluded that race did, in fact, affect the probability of various policing strategies being employed above and beyond the threats posed by protester behavior.174 furthermore, even if the charges are eventually dropped, 175 protesters who have bail set against them must still pay that amount to obtain pretrial release. after their arrest, the bail amount will depend on the county’s bail practice, the county’s bail schedule, the judge assigned to the case, or any combination of the three.176 therefore, with protesters of color arrested at higher rates than white protesters,177 and bail generally imposed on arrested persons, this means cash bail has a larger impact on people of color.178 b. consequences of inability to pay bail pretrial detentions not everyone who protests can be expected to face the many consequences associated with getting arrested at a protest. admittedly, for 169 id. 170 id. at 1613. 171 protesting while black, supra note 14 at 162. 172 id. 173 id. at 163. 174 id. at 168. 175 see tom perkins, most charges against george floyd protesters dropped, analysis shows, the guardian (apr. 17, 2021), https://www.theguardian.com/usnews/2021/apr/17/george-floyd-protesters-charges-citations-analysis. 176 see infra section ii(a)(i). 177 see protesting while black, supra note 14 at 167–68. while the authors also note that this disparity has not been entirely consistent over time, the data does support the phenomena “that once police arrive at an event with african americans present, they are more likely to make arrests, to use force/violence, and to use force/violence in conjunction with arrests than they are to do nothing, although only the last of these outcomes is significantly more likely.” 178 libby doyle & colette marcellin, how bail reform can protect protestors and address system injustices, urban inst. (june 17, 2020), https://www.urban.org/urbanwire/how-bail-reform-can-protect-protestors-and-address-system-injustices (discussing how bail is “systematically set higher” for people of color over white people with similar charges and criminal histories). 998 colum. j. race & l. [vol. 14:977 some protesters, the point of their protest is to get arrested;179 but, for the majority of protesters, this is not the intended goal. while dr. king and other prominent civil rights leaders were arrested multiple times at various protests, they had access to a support network most people do not.180 famously, when dr. king was arrested in birmingham, alabama for protesting in violation of an injunction (eventually leading to the famous letter from birmingham jail) a millionaire, a.g. gaston, posted his bail.181 arrested protesters face the same challenge to post bail amounts as other pretrial detainees. as the u.s. commission on civil rights reported, “[m]ore than 60% of inmates are detained prior to trial due to an inability to afford posting bail.”182 in other words, most people incarcerated pretrial, including those for protest-related offenses, remain behind bars before their trial simply because they are poor. admittedly, protest-related arrests are different because the large proportion of those arrests never get arraigned or were dismissed, so pretrial detention is often shorter in duration.183 while a few days in jail may not initially seem as a large consequence, pretrial detention “carries enormous consequences for the individual charged and has serious downstream effects throughout the entire justice system.”184 “data shows that pretrial detention can result in numerous irreparable harms and consequences such as a higher likelihood of being convicted, losing one’s job, housing, and parental rights, harsher sentences, higher likelihood of pleading guilty, and increased recidivism.”185 even if the defendant is ultimately found not guilty or have their charges are dropped, their pretrial detention can damage a person’s reputation and relationships in the community.186 mugshots, for instance, can permanently harm an individual’s image and reputation, even if the person was never charged with a crime.187 pretrial detention also impacts the mental, emotional, and physical health of those incarcerated. scholarship indicates that pretrial detention is especially harmful, with individuals held in pretrial detention showing higher levels of anxiety, depression, and other mental conditions than even 179 see, e.g., feb. 6, 1961: “jail, no bail” in rock hill, south carolina sit-ins, zinn educ. proj., https://www.zinnedproject.org/news/tdih/jail-no-bail/ (discussing how some members of the student non-violent coordinating committee used the “jail, no bail” tactic to protest segregation). 180 see clint smith, martin luther king jr. was bailed out by a millionaire, the atlantic (feb. 2018), https://www.theatlantic.com/magazine/archive/2018/02/clint-smithfreedom-aint-free/552506/. 181 id. 182 u.s. comm’n on c.r., the civil rights implications of cash bail, at ii (january 2022) [hereinafter usccr report]. 183 loor, supra note 168 at 1616. 184 the hidden costs of pretrial detention revisited, arnold ventures (march 21, 2022), https://craftmediabucket.s3.amazonaws.com/uploads/hiddencosts.pdf. 185 usccr report, supra note 183 at 45. 186 id. 187 id. at 46–47. 2024] bailing out the protester 999 those held in state prisons.188 people detained pretrial are six times more likely to die by suicide than people who have been convicted and sentenced.189 additionally, because pretrial detention has become the norm, jails are “overcrowded, unhygienic, chaotic, and violent environments.”190 one in thirty people in jail report experiencing sexual assault while incarcerated.191 furthermore, pretrial incarceration also disrupts ongoing health coverage and threatens individuals’ continuity of care, exacerbating existing health issues.192 more, pretrial detainees––who have not been convicted––are at higher risks of contracting diseases such as covid-19, hiv/aids, and hepatitis c because they are subjected to this jailhouse environment.193 specifically, in 2020 and 2021, when covid-19 rates were high, people in jails were at a higher risk of transmission than the general public, placing them at a higher risk of negative consequences associated with getting the coronavirus.194 rikers island may perhaps demonstrate the epitome of the deeprooted problems troubling pretrial detention. as others have noted, the facilities “have rotting floorboards, malfunctioning heating and cooling systems, sewage backups, leaking roofs, broken showers, and flooded bathrooms,” creating a dangerous and inhospitable environment.195 people incarcerated typically have no privacy and little space to receive social services.196 furthermore, people held there “endure physical and mental abuse, a rampant culture of violence, and overly punitive conditions,” including correctional officers’ use of excessive force on people detained. 197 here––what others have called “hellhole” and “torture island”––these poor 188 elisa l. toman, joshua c. cochran & john k. cochran, jailhouse blues? the adverse effects of pretrial detention for prison social order, 45 crim. just. & behavior 316, 319 (2018). 189 samuel johnson, tanisha pruitt & piet van lier, bail reform will make ohioans healthier, pol’y matters ohio (nov. 2021), https://www.policymattersohio.org/files/research/bailreformfinal.pdf. 190 david berry, the socioeconomic impact of pretrial detention, open soc’y foundations (2011), at 20. https://www.justiceinitiative.org/uploads/84baf76d-0764-42db9ddd-0106dbc5c400/socioeconomic-impact-pretrial-detention-02012011.pdf. 191 facts on money bail, c.r. corps, https://civilrightscorps.org/wpcontent/uploads/2021/10/9i2urgpoqjem6ucmg5vz.pdf. 192 natasha camhi, dan mistak & vikki wachino, medicaid’s evolving role in advancing the health of people involved in the justice system, the commonwealth fund (nov. 18, 2020), https://www.commonwealthfund.org/publications/issuebriefs/2020/nov/medicaid-role-health-people-involved-justice-system. (outlining how policies excluding inmates from medicaid coverage disrupt care for system-impacted persons); see also kam-suen et al, effects of continuity of care on health outcomes among patients with diabetes mellitus and/or hypertension: a systematic review, 22 bmc family practice 145, 155 (2021) (finding “strong associations between high continuity of care and reduced healthcare utilization, mortality rate and complication risk” for patients). 193 camhi, mistak & wachino, supra note 193. 194 abigail i. leibowitz et al., association between prison crowding and covid-19 incidence rates in massachusetts prisons, april 2020–january 2021, 181 jama internal medicine 1315, 1320 (2021) (finding both increased transmission and increased mortality rates of covid-19 among carceral populations). 195 michael jacobson et al., beyond the island: changing the culture of new york city jails, 45 fordham urb. l.j. 373, 380 (2018). 196 id. at 381. 197 id. 1000 colum. j. race & l. [vol. 14:977 conditions have been attributed to an unprecedented number of pretrial detainee deaths. further, even when a person can post bail, that burden of doing so is often spread among the larger community network, disrupting economic stability for everyone involved.198 if a person is unable to post bail, any possibility to pay that amount would then fall on family members, friends, and the individual’s community to pool together enough money for pretrial release.199 this often results in family members also being punished for pretrial incarceration, often themselves enduring long-term costs from trying to release their family member pretrial.200 this could endanger communities even more, as research shows that economic instability is known to increase the risk of crime and violence.201 “a pretrial stretch in jail can unravel the lives of vulnerable defendants in significant ways.”202 the long-term damage that bail inflicts is immense and extends well beyond incarceration.203 people miss out on personal and work obligations, lose weeks, if not months or years, of income, and are subjected to physical, mental, and emotional abuse during their incarceration.204 for many who cannot afford their bail, this can also jeopardize housing and separate families.205 if the person unable to post bail is a caretaker, this leaves someone without a caretaker.206 if the person unable to post bail has immigration concerns, pretrial detention would place them, and possibly their family, at greater risk of related consequences such as deportation.207 if the person unable to post bail has custody concerns, pretrial detention would place them at a greater risk of losing familial relationships. faced with the prospect of going to jail because they are unable to afford bail, many defendants accept plea deals, leaving a conviction on their record. across the criminal legal system, bail “acts as a tool of compulsion, forcing people who would not otherwise plead guilty to do so.”208 a 2012 report, based on a decade’s worth of criminal statistics, demonstrated how 198 allie preston, 5 ways cash bail systems undermine community safety, ctr. for am. progress (nov. 3, 2022), https://www.americanprogress.org/article/5-ways-cashbail-systems-undermine-community-safety/. 199 id. 200 see, e.g., alex jornya et al., crimsumerism: combating consumer abuses in the criminal legal system, 54 harv. civil rts.-civil liberties l. rev. 107, 108, 125, 151 (2019). 201 hannah love, want to reduce violence? invest in place, brookings inst. (nov. 16, 2021), https://www.brookings.edu/articles/want-to-reduce-violence-invest-in-place/. 202 nick pinto, the bail trap, n.y. times (aug. 16, 2015), https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html. 203 usccr report, supra note 183 at 39–40, 46–47, 50, 59. 204 id. at 46–48. 205 id. at 46. 206 id. at 53, 72. 207 amairini sanchez et al., punishing immigrants: the consequences of monetary sanctions in the crimmigration system, 8 rsf: the russell sage found. j. of the soc. sci. 76, 90–91 (jan. 2022). 208 pinto, supra note 203. 2024] bailing out the protester 1001 bail is used to leverage pleas.209 in nonfelony cases in which people were not detained pretrial––either because they didn’t get bail set or were able to pay it––only half were eventually convicted.210 on the other hand, when defendants were incarcerated throughout pretrial, conviction rates jumped to 92 percent.211 for felony cases, even when controlling for all other factors, pretrial detention was the single greatest predictor of conviction, suggesting “that detention itself creates enough pressure to increase guilty pleas” that places a conviction on the defendant’s record.212 in turn, prosecutors offer defendants plea deals to spend a fraction of the time in jail and “be done with it.”213 for example, at arraignment for a possession of controlled substances case, the prosecutor may offer a plea for thirty days in jail in exchange for a guilty plea.214 while these plea deals may provide short-term relief, the long-term consequences a person faces if they plead guilty are often not immediately clear. in many cases, there is no telling how long someone might be incarcerated pretrial, as they may remain in jail for years awaiting their trial.215 therefore, despite the litany of negative consequences associated with a guilty plea on someone’s record, thirty days is much less time than the amount they could spend if they went all the way to trial. this means although they would have a conviction on their record, the plea deal makes it appear that in just a short time they could go back to work, go back to their families, and generally get back to their lives. this makes people from a lower socioeconomic status stuck between a rock and a hard place. even if they want to maintain their innocence, some cannot afford the process of proving their innocence. even when a person claims that they are freely and voluntarily pleading guilty, that is not always the case. “they’re making a decision coerced by money. . . . [i]f they had money, they wouldn’t be pleading.”216 unfortunately, when they get out after accepting the plea deal, “they come back to a world that’s more difficult than the already difficult situation that they were in before.”217 the fact that the majority of cases result in plea bargaining218 could suggest that its use is to ensure expediency of the criminal legal system. proponents of plea-bargaining claim that it saves the criminal system time 209 mary t. phillips, a decade of bail research in new york city, new york city crim. just. agency (aug. 2012), at 21, 112, 115–16, https://www.prisonpolicy.org/scans/decadebailresearch12.pdf. 210 id. at 116. 211 id. 212 id. at 116–17. 213 see pinto, supra note 203. 214 this is the plea deal tyron tomlin received. see id. 215 see, e.g., jennifer gonnerman, a boy was accused of taking a backpack. the courts took the next three years of his life, new yorker sept. 29, 2014), https://www.newyorker.com/magazine/2014/10/06/before-thelaw. 216 pinto, supra note 203. 217 see id. 218 lindsey devers, plea and charge bargaining, bureau of just. assistance (jan. 24, 2011). 1002 colum. j. race & l. [vol. 14:977 and expense associated with the lengthy trial process.219 if people did not accept pleas, the criminal courts would be overwhelmed.220 without bail’s ability to elicit quick guilty pleas, courts would be under immense strain to fulfill all the procedural rights afforded to defendants. thus, by encouraging the most vulnerable to plead guilty, bail keeps judges’ dockets smaller and the courts operating. a quicker system, however, does not make it a fair system. c. disparate impact of cash bail regrettably, the inconsistencies with how bail is applied are not simply a matter of certain judges being harsher when setting bail than others. rather, reports consistently indicate the cash bail system is fraught with inequities, disparately impacting poorer communities and people of color.221 rather than use cash bail, “[m]ost other common law countries criminalize the practice of requiring money in exchange for pretrial liberty.”222 in fact, the united states is one of only two nations in the world that use a cash bail system.223 specifically, the for-profit commercial bail bond industry collects billions of dollars in profit every year, meaning there are strong incentives to keep this system to protect their bottom line.224 even though calls for reform have consistently been brought to governments for decades, the u.s. cash bail system has persisted. currently, cash bail is the most common form of pretrial release.225 at any one time, over 400,000 people in the u.s. are detained pretrial, impacting over a million people every year.226 of the sixty percent detained pretrial, over thirty were in jail simply because they are unable to post 219 how courts work, am. bar ass’n (nov. 28, 2021), https://www.americanbar.org/groups/public_education/resources/law_related_education_net work/how_courts_work/pleabargaining/. 220 but see ralph adam fine, plea bargaining: an unnecessary evil, 70 marq. l. rev. 615, 616 (1987) (claiming that the overburdening argument is a myth). additionally, fine argues that the reliance on plea bargaining weakens the ways in which we use criminal law to protect society by failing to reach penological justifications such as deterrence, isolation, and rehabilitation. 221 mass incarceration report, supra note 9; usccr report, supra note 183 at 33– 45; see generally connor concannon and chongmin na, examining racial and ethnic disparity in prosecutor’s bail requests and downstream decision-making, race soc probl. (2023). 222 smart justice – ending cash bail, aclu, https://www.aclupa.org/en/smartjustice-ending-cash-bail [hereinafter smart justice]. 223 see alireza nourani-dargiri, guilty? or just poor? potential international human rights violations in the u.s. bail system, 54 case w. rsrv. j. int’l l. 509, 520 (2022); smart justice supra note 223. 224 allie preston & rachael eisenberg, profit over people: the commercial bail industry fueling america’s cash bail systems, ctr. for am. progress (july 6, 2022), https://www.americanprogress.org/article/profit-over-people/. 225 allie preston & rachael eisenberg, profit over people: primer on u.s. cash bail systems, ctr. for am. progress (july 6, 2022), https://www.americanprogress.org/article/profit-over-people-primer-on-u-s-cash-bailsystems/ (“commercial bail is the most common form of pretrial release, accounting for 49 percent of all felony pretrial releases and nearly 80 percent of releases with monetary conditions in 2009, the last time these data were collected at the federal level.”). 226 mass incarceration report, supra note 9. 2024] bailing out the protester 1003 their bail amount227––the median of which is $10,000 for felonies.228 in 2019, an estimated $15 billion in bail bonds were written, the overwhelming majority of which were written by a commercial bondsman.229 while the exact profit is difficult to calculate, reports estimate these companies collect as much as $2.4 billion in profit each year.230 these profit interests are likely the driving force in maintaining this system as the most common form of pretrial release. this unfair mechanism has also increased rates of incarceration. interestingly, the u.s. government is aware that the cash bail system overly punishes the poor. in 2022, the u.s. commission on civil rights released a report on the u.s. cash bail system, revealing that between 1970 and 2015, there was a “433% increase in the number of individuals who have been detained pretrial.”231 the report highlighted that most pretrial detainees are in jail because they are too poor to post bail, highlighted the negative consequences that occur as a result of pretrial detention,232 and validated research concluding that the cash bail system is the leading cause of the mass incarceration crisis in the united states.233 the u.s. commission on civil rights’s report also revealed stark racial and gender disparities in the cash bail system. specifically, these reports found “black and latinx individuals have higher rates of pretrial detention, are more likely to have financial conditions imposed and set at higher amounts, and lower rates of being released on recognizance bonds or other nonfinancial conditions compared to white defendants.”234 while the report notes that jurisdictions handle bail differently, it acknowledges that “[d]ecades of research regarding pretrial release and bail decisions have shown that people of color are treated more harshly during the pretrial release decision-making process,”235 including bail.236 227 usccr report, supra note 183 at 45. 228 pretrial detention, prison pol’y initiative at 50, https://www.prisonpolicy.org/research/pretrial_detention/. national data only exists for felony defendants. while it is true that protesters are not often charged with felonies, and misdemeanor bail is much less than for felonies, individuals have still demonstrated an inability to pay. for instance, previous research from new york city found that even when bail was set at or below $500, the majority of pretrial detainees could not pay it. phillips, supra note 210 at 50 (noting that with the exception of staten island, the majority of defendants could not make bail at or below $500). 229 allie preston, fact sheet: profit over people: inside the commercial bail bond industry fueling america’s cash bail systems, ctr. for am. progress (july 6, 2022), https://www.americanprogress.org/article/fact-sheet-profit-over-people/. 230 id. 231 usccr report, supra note 183 at ii. 232 id. 233 e.g., mass incarceration report, supra note 9; cash bail, aclu, https://www.aclupa.org/en/issues/criminal-justice-reform/cash-bail ; allie preston & rachael eisenberg, cash bail reform is not a threat to public safety, ctr. for am. progress (sept. 19, 2022), https://www.americanprogress.org/article/cash-bail-reform-is-not-a-threat-topublic-safety/; udi ofer, we can’t end mass incarceration without ending money bail, aclu (dec. 11, 2017), https://www.aclu.org/news/smart-justice/we-cant-end-massincarceration-without-ending-money-bail. 234 usccr report, supra note 183 at 33. 235 id. at 35. 236 id. 1004 colum. j. race & l. [vol. 14:977 d. the need for bail reform the impact of bail does not occur in a vacuum and is not an academic exercise––it has greatly affected many people. spending time in jail awaiting your trial is not simply an unfortunate, administrative occurrence––it has a life-altering, often ruining, impact.237 fortunately, bail reform has received necessary national attention in the recent years, recognizing the need to address the unfair system currently put in place. at any time, several thousand people are wrongfully imprisoned simply because they cannot pay their bail fee and wanted to maintain their innocence, not wishing to accept a plea deals to be convicted for a crime that they did not commit. the disparities are worth repeating. reports show that “there was a 433 percent increase in the number of individuals who have been detained pre-trial between 1970 and 2015, with pretrial detainees representing a larger proportion of the total incarcerated population in that same amount of time.”238 for more than sixty percent of pretrial detainees, approximately half a million people, they are in jail awaiting trial simply because they cannot afford bail.239 further, studies show that the average yearly income for people who cannot afford bail is $16,000 for men and $11,000 for women.240 for context, the 2023 poverty line is $14,580 for an individual.241 to compound more injustice, this population is overwhelmingly black.242 while there are justifications for bail, including efficiency rationalizations to ensure defendants appear for trial243 as well as trying to protect the public, the benefits of the system are greatly outweighed by these costs. while this bail system could create quicker processes, it is plagued with inequities and can induce guilty pleas for innocent defendants. accordingly, courts can find its use to be unconstitutional, due to equal protections concerns because of bail’s disparate impact on poorer people and communities of color. for instance, in post-conviction precedent, courts have held that confinement based on wealth is unconstitutional.244 it would not be a far stretch to expand this ruling to apply to pretrial 237 e.g., gonnerman, supra note 216. 238 usccr report, supra note 183 at ii. 239 id. 240 id. at 74. 241 2023 poverty guidelines: 48 contiguous states (all states except alaska and hawaii), dep’t health & human servs. (2023), https://aspe.hhs.gov/sites/default/files/documents/1c92a9207f3ed5915ca020d58fe77696/deta iled-guidelines-2023.pdf. this assumes, however, that the individual does not have dependents and lives alone. 242 usccr report, supra note 183 at ii. 243 as mentioned later, data does not demonstrate that bail creates an additional incentive to show up for trial. supervised release quarterly scorecard, n.y.c. crim. just. (march 2019), https://criminaljustice.cityofnewyork.us/wpcontent/uploads/2019/06/scorecard-jan-to-mar-2019-tj06072019-2-pgs.pdf; onyekwere, supra note 135. 244 cassidy heiserman, punishing indigency: why cash bail is unconstitutional under the equal protection clause, drexel l. rev. (2020), https://drexel.edu/law/lawreview/blog/overview/2020/september/cash-bail/. 2024] bailing out the protester 1005 confinement. additionally, lawsuits have had some measured success in challenging cash bail practices, finding those systems unconstitutional.245 socially, the bail system’s benefits are also outweighed by its costs. while proponents in favor of the cash bail system argue that this process benefits society and keeps communities safe,246 research has indicated the exact opposite. research has associated cash bail with a six to nine percent increase in recidivism,247 meaning pretrial incarceration increases, rather than decreases, crime.248 after only 23 hours in pretrial incarceration, any additional time in detention has been “associated with a consistent and statistically significant increase in the likelihood of rearrest.”249 as homelessness is inextricably linked to arrest rates, cash bail also perpetuates cycles of homelessness and later incarceration.250 for the individual, studies have found that one year of incarceration can result in “an irreparable lifetime wage depression of nine percent,” because cash bail disrupts their current employment and creates barriers for future employment.251 economically, the system’s costs are also outweighed by its benefit. while a justification for bail is to avoid wasting judicial resources, the system creates more financial burdens than it saves. rather, bail is part of an incredibly expensive system of pretrial detention, which studies estimate costs the united states at least $13.6 billion each year.252 245 odonnell v. harris county, 251 f.supp. 3d 1052 (s.d. tex. 2017); see also excessive bail, justia, https://law.justia.com/constitution/us/amendment-08/01-excessivebail.html. 246 see, e.g., dermot shea, new york’s new bail laws harm public safety, n.y. times (jan. 23, 2020), https://www.nytimes.com/2020/01/23/opinion/shea-nypd-bailreform.html. 247 arpit gupta, christopher hansman & ethan frenchman, the heavy costs of high bail: evidence from judge randomization, 45 j. legal stud. 471 (2016); see also don stemen, the prison paradox: more incarceration will not make us safer, crimi. just. & criminology: fac. publ’ns & other works 2 (jul. 2017). (“at the individual level, there is also some evidence that incarceration itself is criminogenic, meaning that spending time in jail or prison actually increases a person’s risk of engaging in crime in the future. this may be because people learn criminal habits or develop criminal networks while incarcerated, but it may also be because of the collateral consequences that derive from even short periods of incarceration, such as loss of employment, loss of stable housing, or disruption of family ties.”). 248 allie preston & rachael eisenberg, don’t blame bail reform for gun violence, ctr. for am. progress (june 23, 2022), https://www.americanprogress.org/article/dontblame-bail-reform-for-gun-violence/. 249 christopher lowenkamp, the hidden costs of pretrial detention revisited, arnold ventures (march 21, 2022). 250 madeline bailey, erica crew & madz reeve, no access to justice: breaking the cycle of homelessness and jail, vera inst. 7–8 (aug. 2020), https://www.vera.org/downloads/publications/no-access-to-justice.pdf. 251 alan butkovitz, economic impacts of cash bail on the city of philadelphia, city of philadelphia pennsylvania office of the controller 7 (oct. 2017), https://www.prisonpolicy.org/scans/philadelphiacontroller/cashbail.pdf. 252 bernadette rabuy, pretrial detention costs $13,6 billion each year, prison pol’y initiative (feb. 7, 2017), https://www.prisonpolicy.org/blog/2017/02/07/pretrial_cost/. some reports have found this number to be even higher, finding the actual cost being close to $22 billion. pretrial detention, macarthur just. ctr., https://www.macarthurjustice.org/issue/ending-the-punishment-of-poverty/pretrialdetention/. 1006 colum. j. race & l. [vol. 14:977 bail reform can bring meaningful change in these areas. evidence continues to demonstrate that bail reform policies are not linked to rising crime rates.253 instead, studies show that “reducing pretrial detention and eliminating money considerations from decisions about detention have had minimal negative effects on public safety.”254 for example, a 2016 initiative in new york city called the supervised release program demonstrated that releasing defendants pretrial, without imposing bail, “delivered an 88 percent court appearance outcome, comparable to results of a defendant being released on their own recognizance or bail.”255 recent changes across the country demonstrate that the country is willing to shift away from a cash bail system.256 while each state has a varying degree of willingness to reform the bail system, these changes indicate an increasing recognition that cash bail unfairly infringes on constitutional rights. among these infringements, as the next section will elaborate, should also be regarding how bail exacerbates existing disincentives to express protest rights. iii. part iii – cash bail and government action to criminalize otherwise lawful protests cash bail exacerbates the consequences of existing government action that seeks to criminalize otherwise lawful conduct. protesting is protected, but protesting on “controversial” issues, like racial justice, often receives disparate treatment, involving higher risks of arrest or other interactions with police.257 cash bail increases the cost of that arrest, and, in turn, acts as a disincentive to engage in otherwise protected activity. a. government’s unconstitutional, disparate use of less than lethal force to quell protests outside of the recent spate of legislation curtailing the right to protest, governments have increasingly used less than lethal force258 to quell protests.259 while these government actions resulted in settlements 253 preston & eisenberg, supra note 235. 254 don stemen & davis olson, is bail reform causing an increase in crime?, harry frank guggenheim found. 20 (jan. 2023), https://www.hfg.org/wpcontent/uploads/2023/01/bail-reform-and-crime.pdf. 255 supervised release quarterly scorecard, nyc crim. just. (march 2019), https://criminaljustice.cityofnewyork.us/wp-content/uploads/2019/06/scorecard-jan-to-mar2019-tj06072019-2-pgs.pdf; adureh onyekwere, how cash bail works, brennan ctr. for just. (feb. 24, 2021), https://www.brennancenter.org/our-work/research-reports/how-cashbail-works. 256 see sandra susan smith, the current state of bail reform in the united states: results of a landscape analysis of bail reforms across all 50 states, harv. kennedy sch. 2, 19, 28–30 (dec. 2021), https://www.hks.harvard.edu/publications/current-state-bailreform-united-states-results-landscape-analysis-bail-reforms-across; bill raftery, bail reform in 2023? 2022 effects in 3 states may impact the courts, ncsc (jan. 4, 2023), https://www.ncsc.org/information-and-resources/trending-topics/trending-topics-landingpg/bail-reform-in-2023-2022-efforts-in-3-states-may-impact-the-courts. 257 protesting while black, supra note 14 at 153, 162. 258 less than lethal force is forced intended to incapacitate, but not kill. this includes use of batons, chemical sprays, and conducted energy devices. see the use-of-force continuum, nat’l inst. of just. (aug. 3, 2009), https://nij.ojp.gov/topics/articles/use-forcecontinuum. 259 see acled report, supra note 96 at 6–7. 2024] bailing out the protester 1007 and dropped charges due to courts holding the state’s actions as unconstitutional, they have largely gone on undeterred and only addressed after the fact. the actions of the seattle police department against black lives matter protesters in 2020 are an illustrative example. the seattle police department used pepper spray, tear gas, batons, rubber bullets, blast balls, and flash-bang grenades against protesters during four separate protests.260 while a court issued an injunction to prohibit the use of those weapons outside of imminent danger, the seattle police department still indiscriminately used chemical irritants and projectiles against protesters.261 in other words, clear direction by a court to not do unconstitutional acts was not enough to prevent them from happening. governments may still act in a way to curtail protests, without many serious repercussions. this may be because governments often do not distinguish between lawful activity and unlawful activity when policing protests. unfortunately, prior studies show that the frequency of government action is based on the protest’s message or race, some calling this a “protesting while black” phenomenon.262 like other cities across the country, seattle over-policed and over-arrested black protesters, but later dropped the vast majority of charges.263 more recently, studies have also found that police respond differently when the protest is perceived to be “left-wing.” a 2020 study analyzed arrests at 64 demonstrations in the united states in 2017 and 2018, categorizing “left-wing” protests—those favoring gun control, immigration, and civil rights––and “right-wing” protests––those favoring anti-abortion measures, confederate statutes, white supremacy, and president trump.264 the study found that left-wing protesters were arrested ten times the amount as right-wing protesters.265 “because police repress on the basis of their understanding of threat, it means that left 260 complaint at 4, black lives matter v. seattle police department, 2020 wl 3064492 (w.d. wash. dec. 7, 2020) (no. 20-cv-0087-raj). 261 black lives matter seattle-king cnty. v. city of seattle, seattle police dep't, 516 f. supp. 3d 1202, 1205 (w.d. wash. 2021). 262 protesting while black, supra note 14 at 153. 263 michael balsamo et al., ap finds most arrested in protests aren’t leftist radicals, seattle times (oct. 20, 2022), https://www.seattletimes.com/nationworld/nation/protest-arrests-show-regular-americans-not-urban-antifa/ (“of more than 300 arrested [in seattle], there are about 286 defendants, others had charges dropped. some . . . local prosecutors declined to bring some protest-related charges.”). while approximately thirteen percent of the u.s. population is black, this report indicated that “[a]t least a third” of the arrests were black and did not make any exceptions for particular cities. this is consistent with other data that demonstrated an over-policing of people of color during protests. see, e.g., melissa chan, these black lives matter protesters had no idea how one arrest could alter their lives, time (aug. 19, 2020), https://time.com/5880229/arrests-blacklives-matter-protests-impact/ (“[w]hen it came to arrests, the faces were less diverse. while there is no racial breakdown of protest arrests nationwide, some analyses of city and county arrest records the first weekend after floyd’s death show that many who were jailed were black. of the 2,172 people the chicago police department arrested from may 29 to may 31, more than 70% were black and 10% were white, according to an analysis of police department records by the chicago reader. in atlanta, 48 of the 82 people processed through the fulton county jail that same weekend were black, georgia public broadcasting found.”). 264 lesley wood, policing counter-protest, 14 socio. compass 1 (2020). 265 id. at 2. 1008 colum. j. race & l. [vol. 14:977 wing protesters, racialized protesters, protesters who are seen as ideological or irrational, are more likely to be arrested and have militarized tactics used against them.”266 even bail fund organizers have been arrested in an effort to intimidate a left-wing protest movement.267 police are not the only groups who treat protesters of color differently––other government groups must also share the blame.268 for instance, recent studies compared reports from the black lives matter protests and the january 6 insurrection to illustrate the disparate treatment.269 for instance, u.s. customs and border protection’s law enforcement safety and compliance directorate implemented an “all hands on deck” response to racial justice protests, but only provided support “as needed” in a “standby status” ahead of january 6.270 comparably, racial justice protests were 93% peaceful, reporting 155 officers injured over the course of the first week of protests.271 compared to the over 1,000 assaults on officers, 250 injured officers and at least seven deaths, one would expect more arrests have been made on january 6.272 instead, government action resulted in more than five times as many arrests at the height of the black lives matter protests than on the day of the insurrection.273 based on this data, one could conclude that there is a higher likelihood for government intervention simply because you are a person of color and are protesting an issue perceived to be more left-wing.274 not everyone can freely express their protest rights. b. cash bail is another disincentive to engage in lawful protesting responding to protests with criminal prosecution has an explicit purpose: to scare community members into silence, even in the face of grave 266 richard allen greene, police respond differently when it’s a left-wing protest, study finds, cnn (jan. 16, 2021), https://www.cnn.com/2021/01/15/us/protest-disparitystudy-trnd (interviewing lesley wood about her findings). 267 atlanta city council member: arrests of ‘cop city’ bail fund organizers appear to be ‘intimidation tactic’, fox 5 atlanta (june 3, 2023), https://www.fox5atlanta.com/news/cop-city-bail-fund-organizer-arrest-city-councilmemberresponse (reporting that an atlanta city council member called these arrests an intimidation tactic to dissuade people from speaking out about a planned police training center that has been nicknamed “cop city.”). 268 ryan j. reilly, jan. 6 response would have been ‘vastly different’ if rioters were black, house sergeant at arms told investigators, nbc news (dec. 28, 2022), https://www.nbcnews.com/politics/congress/jan-6-response-vastly-different-rioters-blackhouse-sergeant-arms-told-rcna63457. 269 laura iheanachor, docs show: “all hands on deck” for racial justice, “no credible threats” from alt-right groups on january 6, citizens for resp. & ethics (jan. 5, 2022), https://www.citizensforethics.org/reports-investigations/crew-investigations/docsshow-all-hands-on-deck-for-racial-justice-no-credible-threats-from-alt-right-groups-onjanuary-6/. 270 id. 271 lauren white & sara wiatrak, black lives matter faced an extreme police response. the january 6th mob was met with something completely different, citizens for resp. & ethics (march 28, 2023), https://www.citizensforethics.org/news/analysis/black-lives-matter-faced-an-extreme-policeresponse-the-january-6th-mob-was-met-with-something-completely-different/. 272 see id. 273 id. 274 as of 2024, this premise has also applied to protests calling for a ceasefire in gaza. see james c. cobb, a historian’s case for protecting even offensive speech on campus, time (feb. 8, 2024), https://time.com/6555716/campus-free-speech-codes-history/. 2024] bailing out the protester 1009 injustice.”275 as more protest activity faces increasing criminalization, the frequency of arrests also increase, charges faced become more severe, and cash bail becomes unavoidable. some jurisdictions have been rather clear on their intention to quell only certain kinds of protests. following the wake of the 2020 george floyd protests, florida governor ron desantis signed a bill into law that would enforce a zero-tolerance policy for “disorderly” assemblies.276 governor desantis claimed this law would uphold protected first amendment and only focus on “violent” protests. the law expanded the definition of what constitutes a “riot” and would detain arrested protesters until their first court appearance.277 interestingly, governor desantis maintains that january 6 was not an insurrection, but rather a protest that ended up devolving.278 more laws criminalizing otherwise lawful protesting will also increase the use of cash bail on protesters. as previously noted, laws curtailing protest rights are on the rise, often criminalizing otherwise lawful activity using vague and overbroad provisions.279 for instance, bills in alabama requires anyone charged with the expanded definition of a “riot” to either be held without bail for up to twenty-four hours280 or creates 275 tameka greer, tennessee’s attack of first amendment right to protest turns attention away from real issues, com. appeal (apr. 10, 2023), https://www.commercialappeal.com/story/opinion/contributors/2023/04/10/criminalizingright-to-protest-deflects-attention-from-the-real-issue/70099339007/ 276 governor ron desantis signs hallmark anti-rioting legislation taking unapologetic stand for public safety, ron desantis 46th gov. of florida (april 19, 2021), https://www.flgov.com/2021/04/19/what-they-are-saying-governor-ron-desantis-signshallmark-anti-rioting-legislation-taking-unapologetic-stand-for-public-safety/. this statute was eventually blocked by a federal judge. see a judge has blocked the ‘anti-riot’ law passed in florida after george floyd protests, npr (step. 9, 2021), https://www.npr.org/2021/09/09/1035687247/florida-anti-riot-law-ron-desantis-george-floydblack-lives-matter-protests 277 ron desantis signs hallmark anti-rioting legislation supra note 277. 278 michelle l. price, desantis downplays jan. 6, says it wasn’t an insurrection but a ‘protest’ that ‘ended up devolving’, ap news (july 21, 2023), https://apnews.com/article/ron-desantis-jan-6-insurrectioncdadb8e378179939549659cc8b23a643. 279 for a collection of these statutes, see analysis of u.s. anti-protest bills, int’l ctr. for not-for-profit l. (feb. 25, 2023), https://www.icnl.org/post/news/analysis-ofanti-protest-bills?location=&status=&issue=12&date=. 280 h.b. 2, § 13a-11-3.1(d) (alabama 2022) (“if the defendant is arrested for . . . inciting to riot . . . the defendant shall be in custody until brought before the court within 24 hours for consideration of bail.”); s.b. 3 (alabama 2022) (same). 1010 colum. j. race & l. [vol. 14:977 a rebuttable presumption against granting bail.281 similar bills are found in kentucky,282 nebraska,283 texas,284 and utah.285 furthermore, these new laws give discretion to police and prosecutor to arrest otherwise nonviolent protesters,286 increasing the probability of arrest. in many arrests, the protester will be issued bail––for an amount that can vary based on the judge––that many struggle to pay. if they cannot pay their bail, even if eventually found innocent, they will have to remain in jail, facing the consequences associated with pretrial detention. in sum, more laws turn into more arrests, those arrests turn into more people getting imposed bail, and more people are detained pretrial because they are unable to post their bail, resulting in more negatively impacted lives because of their pretrial detention. this is a heavy burden. even if the frequency of arrests and number of people imposed bail remained the same, these new laws could have a deterrent effect on protesters by elevating charges from misdemeanors to felonies. broadly, bail amounts for felonies are much higher than for misdemeanors, the median amounting to approximately $10,000.287 if they cannot pay their–– now higher––bail amount, they must be detained pretrial and face the consequences associated with their incarceration, even if their charges are eventually dropped. for instance, a florida law makes it a felony to engage in “rioting.”288 that law, however, would encompass peaceful protests as well because no actual property destruction needs to occur, there just needs to be “imminent danger” of damage.289 similar laws would increase the number of protesters arrested on felony charges instead of misdemeanors, meaning the bail amount associated will also increase, even if their protest would be considered a “peaceful” protest in a different jurisdiction. while not expressly done to curtail protests, the indirect consequence of cash bail could have the same effect. similar to other forms of government action that arguably curtails expressing constitutional 281 h.b. 445, § 13-11-4(b) (alabama 2021) (“inciting to riot is a class a misdemeanor. the defendant shall serve a minimum term of imprisonment of 30 days without consideration of probation, parole, good time credits, or any other reduction in time.”). 282 s.b. 211, § 3 (kentucky 2021) (creating mandatory fines of $500–$5,000 for participation in a “riot” and “incitement to riot”). 283 l.b. 111 § 29-901(2)(a)(iv) (nebraska 2021) (carving out exceptions for a bailable offense when the “defendant is charged for any crime, including violation of a city or village ordinance, arising out of a riot.”). 284 h.b. 2461, § 17.03(b)(1)(l) (texas 2021) (“only the court before whom the case is pending may release on personal bond a defendant who . . . was participating in a riot.”). 285 s.b. 138 (utah 2021) (“this bill . . . provides that a person may be denied bail if charged with rioting.”). 286 see infra note 295–97. 287 usccr report, supra note 183 at 45. 288 cs/hb 1 (fla. 2021) at 15. 289 see id. at 31. 2024] bailing out the protester 1011 rights––voter id laws, for instance290––cash bail and its attached consequences create enough disincentives to prevent some from exercising their first amendment rights. c. cash bail prevents free exercise of first amendment freedoms cash bail dissuades people from otherwise expressing their constitutional right to protest out of fear that if they are arrested, they may face serious, long-term consequences. consider the following calculus. if you are rich and white, the risk of getting arrested and imposed a bail amount you cannot pay is statistically on your side,291 so you likely are not concerned about negative consequences when you attend a protest. if you are a poor person of color, however, statistics demonstrate that not only are you under a higher chance of an arrest, but you are also at a higher risk to receive a bail amount that you cannot pay.292 further, an arrest––even if the charges are later dropped––would have disastrous consequences for both you and your family.293 logically, when you compare the two scenarios, protesting loses its appeal for one group, largely due to the risks and potential consequences involved. in turn, this means that marginalized groups will struggle to be able to express their viewpoints, ultimately making this constitutional right reserved for white,294 wealthy, 295 and often more conservative individuals. even though there are these great risks involved, law enforcement has not appreciated the negative impact bail can have on protest rights–– they’ve weaponized it. reports have shown these government officials have treated arresting protesters as a game, “high-fiving each other” and congratulating each other for the number of arrests made.296 these tactics, 290 see, e.g., nicole r. gabriel, resurrecting the nineteenth amendment: why stricter voter id laws unconstitutionally discriminate against transgender voters, 56 idaho l. rev. 155, 157 (2021). 291 see karina brown, black people nearly twice as likely as whites to be arrested at portland protests, courthouse news serv. (aug. 21, 2020), https://www.courthousenews.com/black-people-nearly-twice-as-likely-as-whites-to-bearrested-at-portland-protests/; mass incarceration report, supra note 9; usccr report, supra note 183. 292 protesting while black, supra note 14; see also brown, supra note 292, mass incarceration report, supra note 9; usccr report, supra note 183. 293 protesting while black, supra note 14; see also brown, supra note 292; mass incarceration report, supra note 9; usccr report, supra note 183. 294 brown supra note 292; see also neil macfarquhar, why charges against protesters are being dismissed by the thousands, n.y. times (feb. 11, 2021), https://www.nytimes.com/2020/11/19/us/protests-lawsuits-arrests.html; perkins supra note 176; elise schmelzer, whatever happened to the hundreds of people arrested during denver’s 2020 george floyd protests?, denver post (dec. 26, 2021), https://www.denverpost.com/2021/12/26/denver-george-floyd-protest-prosecutions/ 295 after being arrested at protests, many have spoken out about how those arrests have drastically altered their lives. e.g., melissa chan, these black lives matter protesters had no idea how one arrest could alter their lives, time (aug. 19, 2020), https://time.com/5880229/arrests-black-lives-matter-protests-impact/. sometimes, to be “wealthy” is to have the luxury to not face consequences when expressing constitutional rights that could alter your life. 296 ali watkins, they were arrested during the protests. here’s what happened next, n.y. times (aug. 7, 2020), https://www.nytimes.com/2020/08/07/nyregion/ny-protestarrests.html. 1012 colum. j. race & l. [vol. 14:977 although improper,297 are largely swept under the rug and treated as normal with little recourse for wrongfully arresting protesters. cash bail is another weapon in a government’s arsenal to circumvent the right to protest.298 bail being used to dissuade people from protesting is nothing new. in fact, bail fund donation patterns may indicate that society understands the dangers bail poses on expressing constitutional rights. during widespread protests, bail funds will often receive sudden influxes in donations, at least in part due to societal recognition that bail can deter people from otherwise protesting.299 this societal recognition of bail’s impact stretches back to the 1960s, even becoming the basis for the “jail, no bail” protest. there, activists recognized that it was hard to scrape up bail money to free those arrested in other protests, understanding that this fact can deter protesters or otherwise get people involved with the movement.300 therefore, refusing bail became its own protest. by refusing bail after getting arrested, the “jail, no bail” movement sought to render the no-money-for-bail barrier for protesting by purposefully refusing bail and serving time to put financial pressure on local authorities to pay the costs of incarcerating them.301 while this movement is admirable, the goal at most protests is not to be incarcerated. additionally, current efforts to reform bail would not effectively protect first amendment expression, likely because they fail to put bail’s impact in this perspective. all fifty states have some flavor of bail reform, “though there is a large variation across jurisdictions as to what constitutes bail reform and how reforms are applied.”302 as one study discussed, bail is 297 see edison lanza, protest and human rights, office of the special rapporteur for freedom of expression of the inter-american commission on human rights 51 (2019), https://www.oas.org/en/iachr/expression/publications/protesta/protesthumanrights.pdf 298 commentators and studies have documented prior attempts to unjustly restrict the right to protest. e.g., zick, supra note 105; jonathan pedneault, us states take aim at protesters’ rights, human rts watch (feb. 16, 2021), https://www.hrw.org/news/2021/02/16/us-states-take-aim-protesters-rights; protect the protest, amnesty int’l, https://www.amnesty.org/en/what-we-do/freedom-ofexpression/protest/; belinda archibong, can protests lead to meaningful changes in government policy, particularly around economic redistribution?, brookings inst. (apr. 6, 2022), https://www.brookings.edu/articles/can-protests-lead-to-meaningful-changes-ingovernment-policy-particularly-around-economic-redistribution/. 299 jessica brand & jessica pushko, bail reform: explained, the appeal (june 14, 2018), https://theappeal.org/bail-reform-explained-4abb73dd2e8a/; camila domonoske, protest arrests led to surge of bail fund donations: impact could be long lasting, npr (june 23, 2020), https://www.npr.org/2020/06/23/879711694/protest-arrests-led-to-surge-ofbail-fund-donations-impact-could-be-long-lasting; libby doyle & colette marcellin, how bail reform can protect protestors and address system injustices, urban (june 17, 2020), https://www.urban.org/urban-wire/how-bail-reform-can-protect-protestors-and-addresssystem-injustices. 300 feb. 6, 1961: “jail, no bail” in rock hill, south carolina sit-ins, zinn educ. project, https://www.zinnedproject.org/news/tdih/jail-nobail/#:~:text=saying%20%e2%80%9cjail%2c%20no%20bail%2c,when%20financial%20re sources%20were%20limited. 301 id. 302 isabella jorgensen & sandra susan smith, the current bail reform in the united states: results of a landscape analysis of bail reforms across all 50 states, hks faculty research working paper series 2 (dec. 2021), 2024] bailing out the protester 1013 dependent on the local political climate and can be difficult to assess faithful implementation of bail reforms.303 cash bail’s benefits are outweighed by the costs it creates, particularly on protest rights. the bail system is not experienced evenly throughout society, disproportionately impacting poorer communities and people of color, deterring participation. if first amendment expression is to be a “supremely precious” right,304 meaningful change to bail must occur. otherwise, bail will deter the central premise of protests: to have marginalized voices heard. iv. part iv – attainable avenues for change there are many ways that substantial bail reform can occur immediately, including avenues in each branch of government. every state has attempted to reform bail, but none have done so for the specific purpose of protecting first amendment expression.305 bail costs societies a lot and is not needed to keep communities safe.306 therefore, tactical, measured reform can demonstrate the efficacy of a broader overhaul.307 reforming bail to ensure that protesters would not need to pay bail if arrested has been successfully implemented in several jurisdictions.308 the district of columbia, for example, took steps to eliminate bail as early as the 1960s309 without threatening public safety––even during widespread https://dash.harvard.edu/bitstream/handle/1/37370366/rwp21033_smith.pdf?sequence=3&isallowed=y. 303 id. at 8. 304 naacp v. button, 371 u.s. 415, 433 (1963). other scholars have noted that this “supremely precious” right must holistically include freedom of speech. see, e.g., alix h. bruce, augmenting our reality: the (un)official strategy guide to providing first amendment protection for players and designers of location-based augmented reality video games, 92 st. john’s l. rev. 943, 950 (2018) (“the court has noted that freedom of speech must be protected, not only because it is important in society but also because the right itself would be easy to destroy.”). because protests necessarily include speech, this means that by extension, protests are also a supremely precious right. see alix h. bruce, “enough’s enough”: protest law and the tradition of chilling indigenous free speech, 8 am. indian l. j. 53 (discussing the “supremely precious” right of speech in the context of protests). 305 jorgensen & susan smith, supra note 303 (their study did not find that first amendment concerns motivated bail reforms). 306 e.g., allie preston, 5 ways cash bail systems undermine community safety, ctr. for am. progress (nov. 3, 2022), https://www.americanprogress.org/article/5-wayscash-bail-systems-undermine-community-safety. 307 e.g., lea hunter, what you need to know about ending cash bail, ctr. for am. progress (march 16, 2020), https://www.americanprogress.org/article/ending-cashbail/ (“washington, d.c., was an early pioneer in pretrial reform, taking steps to eliminate the use of cash bail as early as the 1960s. the results have been extraordinary: 94 percent of defendants are released pretrial, and 91 percent of them appear in court for their trial. new jersey passed a suite of criminal justice reforms in 2016 that essentially eliminated cash bail and created a new pretrial services program. since implementing these reforms in 2017, new jersey saw a 20 percent reduction in its jail population. in 2017, 95 percent of defendants were released pretrial and 89 percent of them appeared at their trial date. harris county, texas, home to the third-largest jail system in the country, reformed its pretrial system as part of a consent decree to virtually eliminate the use of money bail for misdemeanor charges. prior to these reforms, 40 percent of people arrested on a misdemeanor charge were detained until their case was adjudicated. experts estimate that reforms will result in pretrial release for 90 to 95 percent of misdemeanor defendants.”) 308 id. 309 id. 1014 colum. j. race & l. [vol. 14:977 protests. instead, when people are arrested at protests, financial resources are no longer a mandate for pretrial release. rather, those arrested on misdemeanors are presumed releasable, and those arrested on felonies undergo a risk assessment to determine if they should be detained pretrial.310 the unique nature of protesting warrants specific focus for bail reform. even if performed in its purest sense, protesting still runs the risk of unwarranted arrest and subsequent consequences. therefore, targeted reform to affect bail considerations for the crimes associated with protesting may be more palatable for those concerned with more holistic bail reform, particularly regarding concerns about public safety. admittedly, there may be some who oppose protesting altogether, but prior research suggests that a majority support most forms of protected protests such as handing out fliers, boycotting, marching, and picketing.311 this section proposes some avenues for bail reform, targeting efforts to protect the right to protest. to note, this section is not meant to qualify bail’s use in other contexts; rather, by focusing solely on its impact on protest rights, this method could strategically lead to broader reform in the future. through this limited reform, critics of bail reform would also be able to see that bail is not a necessary for all defendants to keep a community safe. a. legislative means for reform while some states have successfully made steps to abolish their bail systems,312 most states as well as the federal government have been largely unsuccessful. while broad reform has been unsuccessful, voters have signaled considerable support for bail reform such as by electing prosecutors who campaigned on a bail reform platform.313 accordingly, a narrower bail reform could be more palatable option to opponents. incremental reform, starting with reform surrounding protesters, could be the solution. while broad reform may be the ultimate goal, critics would not readily get on board due to public safety concerns. instead, legislation that focuses solely on waiving bail for arrested protesters could remove bail’s disincentives as well as alleviate concerns of critics. to do so, legislatures can reform their laws to waive bail for the charges commonly associated with protests.314 some crimes comprise of the majority of charges when there are protest arrests and largely surround 310 for an example of how this can play out, see eliana block & evan koslof, verify: will protesters arrested in dc need to pay bail?, wusa9 (june 4, 2020), https://www.wusa9.com/article/news/verify/verify-cash-bail-dc-george-floyd-protesters/65a2a8df03-97c2-4c16-a58c-b2e4abc7a59c. 311 yougov survey: causes and protesting, yougov (2023), https://ygo-assetswebsites-editorialemea.yougov.net/documents/causes_and_protesting_poll_results_20231005.pdf. 312 see raftery, supra note 257. 313 see udi ofer, despite backlash voters and lawmakers continue to choose criminal justice reform, aclu (sept. 12, 2022), https://www.aclu.org/news/criminal-lawreform/despite-backlash-voters-and-lawmakers-continue-to-choose-criminal-justice-reform. 314 see analysis of u.s. anti-protest bills, int’l ctr. for not-for-profit l. (feb. 25, 2023), https://www.icnl.org/post/news/analysis-of-anti-protestbills?location=&status=&issue=12&date= 2024] bailing out the protester 1015 rioting, traffic interference, or complying with orders.315 for example, when 61 people were arrested at a protest during the jayland walker protests in akron in 2022, rioting, failure to disperse, disorderly conduct, and misconduct at an emergency comprise 90% of the charges.316 in many states, these charges are misdemeanors and are viewed as relatively minor offenses.317 waiving bail for the misdemeanors most common to occur at protests would also follow a recent push by legislatures to exclude bail considerations for other minor offenses. for example, a recent maine bail reform ended cash bail requirements for most minor charges.318 specifically, the new law eliminates cash bail for disorderly conduct arrests, a common charge against arrested protesters.319 similar to maine, states could poll the most common, minor charges that occur at protests and eliminate cash bail considerations for those arrests. importantly, for states that would elevate the charges to felonies, legislatures should still waive bail for those charges. in some states, traffic interference, rioting, and trespass crimes are elevated to felonies, even if the protests are nonviolent and do not amount to any damage. legislatures can still anticipate those felony charges and waive bail for those arrested during an otherwise lawful protest. these measured legislative changes would likely be introduced during widespread protests, but should remain implemented even after those movements to demonstrate that bail is not a necessary component to protecting public safety. eliminating bail for these minor charges could be an incremental step to demonstrate the efficacy of bail reform. while complete bail reform may be the eventual goal, targeting reform to the specific charges faced in conjunction to a protest could assuage the disincentives bail causes to future protesters. b. judicial means for reform because the courts are largely in charge of imposing bail, they also have the means to alleviate its impact on protest rights. regardless of legislative action, bail is set at a judge’s discretion, meaning that discretion can be used to remove money considerations for every case involving an arrested protester. to be sure, this does not mean that courts should deny bail and incarcerate all arrested protesters pretrial; this means waiving bail, releasing them without paying any bail fee. bail reform in the courts could start in the form of recognition. in other words, court leaders can collect data on how bail is used in their jurisdiction, analyzing its impact on marginalized groups. this is nothing new: several state courts have created task forces to research this topic, discussed disparate impacts, and made recommendations to various 315 see id. 316 livingston, supra note 6. 317 see analysis of u.s. anti-protest bills, supra note 315. 318 an act to amend the bail code, l.d. 1703 (me. 2021). 319 id. at 2 (eliminating cash bail for “class e” crimes, of which disorderly conduct is one). 1016 colum. j. race & l. [vol. 14:977 branches of government as to how to alleviate those concerns.320 some, more outspoken, jurists have taken this a step further to actively call on legislators to reform the state’s bail system.321 reform can follow through the court’s bail schedules. as mentioned previously, these schedules impose predetermined bail amounts for certain crimes, often leaving little judicial discretion to amend those amounts until the first hearing. these schedules, however, are created by the jurisdiction’s courts and are edited regularly, leaving the opportunity to reform the practice to exclude its use on arrested protesters for the commonly charged offenses. in the case that courts do not conform to bail schedules, creating published guidelines restricting bail’s use can demonstrate a uniform practice that avoids otherwise setting bail for arrested protesters. reform can also take place in the court room, indicated by courts striking down bail systems as unconstitutional. for instance, a justice in new york held that the state’s bail system violated a person’s due process and equal protection clauses.322 the arrested person was charged with a misdemeanor, but imposed a $5,000 bail, nearly half his annual income, forcing him to remain in jail for five months until he agreed to a plea deal.323 in holding his pretrial incarceration violated his due process rights, the justice also noted that over sixty percent “have not been convicted of a crime but are awaiting arraignment or trial.”324 because judges are largely at the forefront of setting these bail amounts, their participation is the most crucial to addressing the detrimental effect bail has on constitutional rights. there is little uniformity in how courts and judges impose bail, making pretrial release a luck-of-the-draw for those arrested.325 creating a uniform judicial policy326 to no longer impose bail on the charges attributed to arrested protesters would create the necessary uniformity to alleviating bail’s ability to dissuade lawful protests. 320 see, e.g., cuyahoga county bail task force, report and recommendations (march 16, 2018). 321 see, e.g., jonathan lippman, our cash bail system isn’t working. we can fix it., wash. post (nov. 28, 2017), https://www.washingtonpost.com/opinions/our-cash-bailsystem-isnt-working-we-can-fix-it/2017/11/28/3f0dd2ce-cf9f-11e7-a1a30d1e45a6de3d_story.html. 322 people ex rel. desgranges on behalf of kunkeli v. anderson, 72 n.y.s.3d 328 (n.y. sup. ct. 2018). 323 see alan feuer, judge says new york’s bail law treats poor unfairly, n.y. times (feb. 11, 2018), https://www.nytimes.com/2018/02/11/nyregion/judge-says-new-yorksbail-law-treats-poor-unfairly.html. 324 kunkeli, 72 n.y.s.3d at 330. 325 see, e.g., anna maria barry-jester, supra note 157 (examining the lack of uniformity of bail imposition in new york). 326 because the majority of federal courts do not use bonds, these judicial policies would likely need to be introduced at the state-level. this being said, there are arguments for federal change to create uniformity. j.g. carr, bail bondsmen and the federal courts, 57 fed. prob. 9 (1993) (advocating for a change in the federal bail reform act). 2024] bailing out the protester 1017 c. executive means for reform the executive branch also has the power to protect protest rights. executive officials enjoy broad powers to influence how bail is used. for instance, attorney generals and district attorneys have discretion in how prosecutions operate, including bail amounts. generally, they create the policies that outline how the jurisdiction will prosecute crimes, including considerable discretion in both the charges brought as well as requesting a certain bail amount be set. some prosecutors have demonstrated this ability, previously instituting policies that they would not seek bail for a particular range of charges.327 for example, in 2017 the lead prosecutor for chicago announced that they would no longer seek bail for defendants accused of low-level offenses.328 this means it is possible for prosecutors to create internal directions that request that bail be waived for anyone arrested at a protest in an effort to encourage first amendment expression. top executive officials can also directly protect protest rights, especially during widespread demonstrations, by enacting bail moratoriums. similar to executive actions taken place during the covid19 pandemic impacting eviction cases,329 a moratorium can be put in place to prohibit the use of bail against arrested protesters. during the pandemic, the u.s. president placed a moratorium on evictions, recognizing the numerous negative consequences losing housing during that time would have.330 not only did evictions drop significantly during the moratorium, but also even after the moratorium was lifted, eviction rates were lower than before the moratorium was put in place.331 in a similar vein, moratoriums on bail, particular during times of racial justice protests that receive higher rates of arrest, can demonstrate the government’s commitment to upholding constitutional rights by recognizing the disincentives bail can have. as an added benefit, even after the bail moratorium is lifted, lessons from the eviction moratorium suggest that bail rates would remain lower than before the moratorium is put in place. d. other means for reform while government buy-in is necessary for lasting reform, constituents can help to get the ball rolling. while not a long-term solution, bail funds332 can alleviate the burden bail can have on arrested protesters 327 e.g., justin miller, the new reformer das, am. prospect (jan. 2, 2018), https://prospect.org/health/new-reformer-das/; see also allison siegler & kate m. harris, how did the “worst of the worst” become 3 out of 4?, n.y. times (feb. 24, 2021), https://www.nytimes.com/2021/02/24/opinion/merrick-garland-bail-reform.html. 328 steve schmadeke, foxx agrees to release of inmates unable to post bonds of up to $1,000 cash, chi. trib. (march 1, 2017), https://www.chicagotribune.com/news/breaking/ct-kim-foxx-bond-reform-met-20170301story.html. 329 temporary halt in residential evictions to prevent the further spread of covid-19, 85 fr 55292 (sept. 4, 2020). 330 id. at 55295–96. 331 lindsey smith, effects of the federal eviction moratorium being lifted: the feared wave of evictions that never hit, pepperdine sch. of l. (2023), https://law.pepperdine.edu/surf-report/posts/effects-of-federal-eviction-moratorium-beinglifted-lindsey-smith.htm. 332 e.g., co. freedom fund, https://www.coloradofreedomfund.org/. 1018 colum. j. race & l. [vol. 14:977 in two ways. first, through educating the general public on the availability of these funds and how they work, bail funds can help reduce bail’s deterrence effects on protesting. additionally, these funds work directly with those who cannot afford their bail amounts, meaning the bail funds are able to influence government officials by recounting specific stories of people impacted by bail.333 particularly considering bail system’s lack of uniformity, bail funds can provide important information to governments illuminating its inconsistencies and disparate impacts. rather than criminalize these bail funds as some jurisdictions have sought to do,334 government should look to collaborate with these organizations. litigants can also bring necessary reform. several organizations have attempted litigation campaigns in an effort to create common law precedent to reform the bail system.335 while these campaigns may have measured success, the effects are admittedly not as extensive, and widereaching as they would need to be to create substantial reform. for instance, the aclu announced in 2017 its initiative to end cash bail which included targeted litigation,336 the results have been at best piecemeal rather than the hoped-for overhaul. while the organization is doing important work such as filing class action lawsuits challenging this discriminatory practice, but the states they have brought those lawsuits still use cash bail to this day.337 additionally, litigation campaigns can be costly, both in terms of money and time, requiring several years––if not decades––and large financial investments to make the end-goal a reality.338 pressure campaigns on commercial bail companies could also be the means of creating measured reform. optimistically, past efforts have also had measured success. for example, following a multi-year campaign by the aclu and color of change to pressure private equity firm endeavour capital to exit involvement in the bail system, endeavour divested from 333 for an explanation of how storytelling can influence and encourage reform, see ella saltmarshe, using story to change systems, stan. soc. innovation rev. (2018). 334 jeff amy & kate brumback, atlanta police arrest 3 organizers behind bail fund supporting protests against ‘cop city’, pbs (may 31, 2023), https://www.pbs.org/newshour/politics/atlanta-police-arrest-3-organizers-behind-bail-fundsupporting-protests-against-cop-city 335 see challenging the money bail system, c.r. corps, https://civilrightscorps.org/our-work/. 336 see aclu announces nationwide campaign to support movement to end money bail, aclu (dec. 11, 2017), https://www.aclu.org/press-releases/aclu-announcesnationwide-campaign-support-movement-end-money-bail. 337 aclu files federal class action lawsuit challenging discriminatory cash bail system that punishes poor people in detroit, aclu (april 14, 2019), https://www.aclu.org/press-releases/aclu-files-federal-class-action-lawsuit-challengingdiscriminatory-cash-bail-system. 338 see lawrence m. friedman, claims, disputes, conflicts and the modern welfare state, in access to justice and the welfare state 251, 258 (mauro cappelletti ed., 1981) (“litigation had also become terribly expensive. no one decided, deliberately, to raise the price of law. this simply happened or evolved over the years. the reasons hardly matter. access to the courts for relief against mistakes and injustices of the state became very, very costly. . . . quality, of course, is always expensive. a well-trained, professional body of judges costs money. . . . the legal profession is now highly professional, as well. . . . good lawyers have become extremely expensive.”). 2024] bailing out the protester 1019 the largest for-profit bail bond company in the country.339 these campaigns, while lengthy and limited in effect, can help remove economic reliance on the bail system by damaging bail bond companies’ profits.340 finally, while not every state has this method available, ballot initiatives can also be an avenue for change.341 these initiatives are proposed by constituents by putting the proposals on the ballot for voter considerations.342 in order to get on the ballot, the ballot initiative needs to collect enough signatures to demonstrate substantial societal attention to the particular issue.343 the ballot initiative would then need a certain number of votes to pass in order to come into law.344 while bail reform can occur in this manner, this would require a large, coordinated grassroots movement that requires careful steps to ensure that the initiative can appear on the ballot, and these efforts are limited to states that have these processes in place. e. responding to oppositions to reform even with numerous studies supporting bail reform, that does not mean reform will be met with open arms. understandably, the prospect of releasing arrested persons brings concerns that public safety will be jeopardized. in the protesting context, there may be concerns about violent protests going on without repercussions, allowing unlawful protesters to further damage and endanger the community. however, not only does data demonstrates the overwhelming majority of protests are peaceful,345 but also studies consistently demonstrate releasing people pretrial did not negatively impact public safety.346 commonly, critics of bail reform argue that releasing more people pretrial will endanger society by sending “dangerous” people back into the community.347 while statistics have regularly refuted this fact on a broader scale,348 this argument has been largely successful in stalling necessary change. 339 aclu and color of change statement on endeavour capital’s divestment from predatory, for-profit bail industry, aclu (feb. 21, 2020), https://www.aclu.org/pressreleases/aclu-and-color-change-statement-endeavour-capitals-divestment-predatory-profitbail. 340 id.; smart justice supra note 223. 341 states with initiative or referendum, ballotpedia, https://ballotpedia.org/states_with_initiative_or_referendum. 342 id. 343 id. 344 id. 345 see infra section i(c) 346 sarah staudt, releasing people pretrial doesn’t harm public safety, prison pol’y initiative (july 6, 2023), https://www.prisonpolicy.org/blog/2023/07/06/bail-reform/; see also benjamin s. case, speaking of riots: the complicated reality of violence vs. nonviolence, pol. violence at a glance (feb. 8, 2021), https://politicalviolenceataglance.org/2021/02/08/speaking-of-riots-the-complicated-realityof-violence-vs-nonviolence/. 347 dermot shea, new york’s new bail laws harm public safety, n.y. times (jan. 23, 2020), https://www.nytimes.com/2020/01/23/opinion/shea-nypd-bail-reform.html. 348 e.g., mass incarceration report, supra note 9; cash bail, supra note 234; preston & eisenberg, supra note 234; ofer, supra note 234. 1020 colum. j. race & l. [vol. 14:977 specifically, critics often point to attention-grabbing reports involving individuals who commit subsequent crimes after their initial arrest because they were not imposed bail. for example, a new york post article documented how new york city’s bail reform was not achieving its goal of eliminating bail while keeping communities safe.349 particularly, the article points to nypd data showing the same ten people were arrested nearly a total of 500 times since the bail reform began, as well as data showing an increase in recidivism rates more generally.350 while instances like those in the new york post should be addressed, those instances appear to be the exceptions, not the rule. importantly, recent studies still do not show a clear and obvious pattern in violent crime as a result of bail reform. a 2023 study by the data collaborative for justice examined the impact of new york’s bail reform law on recidivism in new york.351 contrary to the conclusions by the new york post, the report found “[e]liminating bail for most misdemeanor and nonviolent felony charges reduced recidivism.”352 even for violent felony offenses, the study found that “reducing the use of bail through measures such as supervised release . . . did not affect recidivism in either direction.”353 while public safety is a justified concern, data does not support that communities are endangered after eliminating bail for most misdemeanor and nonviolent felony charges. accordingly, bail reform that focuses on the charges most commonly arising from protests largely focus on misdemeanors and nonviolent felonies.354 furthermore, as the data suggests, even for violent crimes, which is often defined to include attributes such as “rioting” that results in property damage,355 bail is not necessary to protect the public because alternatives such as supervised releases “did not affect recidivism.”356 targeting bail reform to waive protest-related, minor charges could be an incremental step to alleviating those concerns. resistance to bail 349 bernadette hoga, tina moore & bruce golding, 10 career criminals racked up nearly 500 arrests since ny bail reform began, n.y. post (aug. 3, 2022), https://nypost.com/2022/08/03/career-criminals-rack-up-nearly-500-arrests-since-ny-bailreform-began/. 350 id. 351 summary, rené ropac & michael rempel, does new york’s bail reform law impact recidivism? a quasi-experimental test in new york city, data collaborative for just. 4 (march 2023), https://datacollaborativeforjustice.org/wpcontent/uploads/2023/04/recidivismreportsummary.pdf 352 main report, rené ropac & michael rempel, does new york’s bail reform law impact recidivism? a quasi-experimental test in new york city, data collaborative for just. 43 (march 2023), https://datacollaborativeforjustice.org/wpcontent/uploads/2023/03/recidivismreport-4.pdf. 353 id. 354 see id. 355 over 300 people facing federal charges for crimes committed during nationwide demonstrations, dep’t of just. off. of pub. aff. (sept. 24, 2020), https://www.justice.gov/opa/pr/over-300-people-facing-federal-charges-crimes-committedduring-nationwide-demonstrations (listing “inciting a riot” in a group of crimes connected to “[v]iolent opportunists.”). 356 see rené ropac & michael rempel, supra note 353. 2024] bailing out the protester 1021 reform comes along with the long history of resistance to other criminal justice reforms.357 these concerns are unlikely to dissipate overnight. because protesters are often charged with crimes such as blocking traffic or disorderly conduct––not extremely violent crimes such as murder that would be of public concern––this limited reform could demonstrate the efficacy of broader reform. for critics worried that releasing “rioters” would endanger the public because they would go out and cause more riots, judges could always impose conditions, such as supervised release, not related to money to reach similar ends.358 finally, a periodic rollout could also demonstrate the reform’s efficacy, especially if data is collected to compare recidivism before and after the reform. conclusion protesting is a fundamental right than cannot be reserved only for those who can afford high bail amounts. the impact that protests have on progressing societies cannot be taken lightly. nearly every significant change in the country has come as a result of some kind of protest. unsurprisingly, countries around the world, like the united states, wish to promote and protect this right, upholding the right in light of government action that threatens to restrict it. cash bail, however, threatens free expression of this constitutional right. cash bail, the process in which a defendant must pay a monetary amount to be released pretrial, is an unjust system that is treated differently between jurisdictions. regrettably, research also indicates that cash bail is not felt evenly across demographics, disparately impacting poorer communities and communities of color. this means that the negative consequences involved, including the effect that bail has on eliciting pleas from those who otherwise would not plea, affects these demographics at a disproportionate rate. unfortunately, the recent rise in laws criminalizing otherwise lawful protests creates large disincentives for future protesters. in addition to increasingly criminalizing protected activity, laws have also elevated crimes from misdemeanors to felonies. arrests, and subsequent charges, however, do not occur evenly, as research shows people of color and “leftwing” protesters arrested at significantly higher rates. in turn, the disparate arrest rates and disparate impact of bail exacerbates the existing disincentives of government action on lawful protests. fortunately, several avenues exist to alleviate the effect bail has caused on the right to protest. in all three branches of government as well as through grassroots initiatives, the bail system can be reformed to at least waive bail for instances of arrested protesters, alleviating disincentives. finally, targeting reform to only waive bail for the charges most commonly attributed to arrested protesters will assuage public safety 357 see backlash on reform due to concerns about crime, marshall project, https://www.themarshallproject.org/records/11987-backlash-on-reform-due-to-concernsabout-crime. 358 to be clear, this has discriminatory practices in its own right and would be the case for a “lesser evil” because many judges waive money considerations as it relates to supervised release. 1022 colum. j. race & l. [vol. 14:977 concerns, and could demonstrate the efficacy of broader reform. so yes, while these reform recommendations focus on arrested protesters, its impact would be a vital incremental step in reaching comprehensive reform to eliminate the practice altogether. introduction i. part 1 – the bedrock right to protest a. rich history of protests b. the protected right to protest c. overwhelmingly peaceful protests d. recent legislation attempting to curtail lawful protests by raising costs ii. part ii – cash bail’s disparate impact on marginalized communities a. what is cash bail and how does it work? 1. how and why is bail set? 2. bail for arrested protesters b. consequences of inability to pay bail pretrial detentions c. disparate impact of cash bail d. the need for bail reform iii. part iii – cash bail and government action to criminalize otherwise lawful protests a. government’s unconstitutional, disparate use of less than lethal force to quell protests b. cash bail is another disincentive to engage in lawful protesting c. cash bail prevents free exercise of first amendment freedoms iv. part iv – attainable avenues for change a. legislative means for reform b. judicial means for reform c. executive means for reform d. other means for reform e. responding to oppositions to reform conclusion columbia journal of race and law vol. 11 july 2021 no. 3 article the surveillance tentacles of the child welfare system charlotte baughman, tehra coles, jennifer feinberg & hope newton* the family regulation system identifies families through the use of widespread, cross-system surveillance for the purported purpose of keeping children safe. but the system does not surveil all families equally, leading to the disproportionate impact of family regulation on black, brown, and native families, and fails to protect while causing more harm to children and communities of color. we examine how institutions and professionals that are meant to provide necessary services to the community—medical providers, social services agencies, the police, and schools—act as tentacles of surveillance, entrapping families in the family regulation system. we argue that engineering service and community providers as surveillance agents perpetuates inequality and leads to unnecessary family separation and trauma, and that genuine support for families can only thrive outside of the family regulation system and its surveillance tentacles. * charlotte baughman is a senior social worker, tehra coles and jennifer feinberg are litigation supervisors, and hope newton is a parent advocate at the center for family representation (cfr). parent advocates are parents who have been impacted by the system and are now working as advocates to support other parents caught in the family regulation system. 502 colum. j. race & l. [vol. 11:501 i. introduction ............................................................................. 503 ii. the surveillance tentacles ................................................... 509 a. surveillance disguised as support in mental health and social services ......................................... 510 b. schools as systems of surveillance ............................ 516 c. law enforcement and the family regulation system: partners in surveillance ............................... 521 d. surveillance masked as protection: the family regulation system ....................................................... 525 iii. looking forward: support, not surveillance .................... 531 2021] surveillance tentacles 503 i. introduction the child welfare system, which we refer to throughout this article as the family regulation system,1 depends upon a system of surveillance to entrap low-income black, brown, and native families within it. mental health and social service providers, educational institutions, law enforcement, and the family regulation system itself, function as the surveillance tentacles of the family regulation system, drawing low-income black and brown families under the watchful eye and control of family regulation workers and courts. these tentacles seek out indications of neglect or abuse, which is often little more than evidence of poverty, and focus on reporting concerns and placing families under even greater levels of surveillance. by utilizing these tactics, the family regulation system causes greater trauma to impacted communities and fails to provide the support necessary to assist families living in poverty. in this article, we explore how the family regulation system uses its surveillance tentacles to control families, without providing the assistance or protection to children it is purportedly designed to deliver. we argue that families need direct material support that is divorced from the threat of surveillance or family separation. mary2 is a 25-year-old black mother who has been running late all week—late to pick the baby up from daycare, then late to get her to the pediatrician’s office. she missed the appointment, for the third time. she was late to pick her son up from her mom’s house and arrived at the shelter after curfew. mary missed her recertification appointment at the public assistance office because her son’s school bus didn’t show up and she had to take him to school on public transportation. the knock on the door from the 1 throughout this article, “child protective services” workers will be referred to as “family regulation” workers and the “child welfare” system will be referred to as the “family regulation” system to recognize that the system “is designed to regulate and punish black and other marginalized people.” dorothy roberts, abolishing policing also means abolishing family regulation, imprint (june 16, 2020, 5:26 am) [hereinafter roberts, abolishing], https://imprintnews.org/child-welfare-2/abolishing-policing-also-meansabolishing-family-regulation/44480 [https://perma.cc/3vaj-h8wp]. 2 this article will include several client stories. these stories are meant to be reflective of our client’s experiences but are not the stories of any one client. https://imprintnews.org/child-welfare-2/abolishing-policing-also-means-abolishing-family-regulation/44480 https://imprintnews.org/child-welfare-2/abolishing-policing-also-means-abolishing-family-regulation/44480 504 colum. j. race & l. [vol. 11:501 family regulation worker was the last straw. a shelter case worker overheard a heated argument between mary and her husband and made a child maltreatment report. a family regulation worker told her that there would be a conference that same day to discuss the agency’s concerns. in addition to the shelter caseworker who made the report, the family regulation worker had also talked to mary’s son’s school and his pediatrician. mary and her husband would have separate conferences because the report mentioned domestic violence. during the conference, mary learned that a domestic violence consultant who had never met mary or her husband had reviewed their case history and felt her children were unsafe. mary sat at a table across from three strangers, looking down at the “service plan” and could not understand how she was going to get it all done without losing her children. the family regulation worker told her that she would have to enforce an order of protection against her husband and that he would have to find another place to live. she would be required to bring the children to the family regulation agency for supervised visits with their father, on top of enrolling in a parenting class, family therapy, domestic violence services, and complying with regular home visits from the family regulation worker. mary could barely stay afloat, and now she was going to have to do everything on her own. she felt like she was being set up to fail, but she agreed to the plan. what other choice did she have? *** there is nothing new about the policing and surveillance of black and brown bodies. parents like mary are routinely assigned “service plans” by family regulation workers as means of addressing what the latter sees as deficiencies in their parenting. these plans are rarely tailored to the needs of the family but are instead cookie cutter solutions that often make matters worse and provide a pathway for the family regulation systems to watch the family more closely and control their 2021] surveillance tentacles 505 behavior. this control determines who is allowed to come in contact with their children, where they can live, what doctor they have to go to, what time they must be home, where and when they can work, and what services they must engage in. black and brown families have been over-policed, over-surveilled, torn apart, and disrespected for hundreds of years. black children were kidnapped and taken across the world to be enslaved. black families were separated, and children were sold away from their parents as a means of control. black women were considered more valuable to slave owners when they were in their “child bearing years.”3 slave owners closely monitored the behavior of black mothers to make sure that they were properly caring for their children.4 in the 1960s, the government sanctioned the forced removal of native children from their families and, in most cases, placed them in white homes far from their families.5 by the 1970s, between “25 and 35 percent of all [native] children had been placed in adoptive homes.”6 for the past several years, brown children have been forcefully separated from their parents and detained at the border in an attempt to discourage immigration.7 today, the young mothers we represent at the center for family representation (cfr), who are usually black or brown, are frequently denied favorable settlement offers because family regulation system prosecutors believe they will have more children in the future and want to retain an easier pathway to more surveillance through subsequent court involvement that often involves micromanaging the care of their children.8 3 emily west & erin shearer, fertility control, shared nurturing, and dual exploitation: the lives of enslaved mothers in the antebellum united states, 27 women’s hist. rev. 1006, 1006–07 (2018). 4 id. 5 christie renick, the nation’s first family separation policy, imprint (oct. 9, 2018, 5:05 am), https://imprintnews.org/child-welfare2/nations-first-family-separation-policy-indian-child-welfare-act/32431 [https://perma.cc/l254-9dlr] (“in its [1978] report to congress, a task force said, ‘the removal of indian children from their natural homes and tribal setting has been and continues to be a national crisis.’”). 6 id. 7 amelia cheatham, u.s. detention of child migrants, council on foreign rels (oct. 29, 2020), https://www.cfr.org/backgrounder/us-detentionchild-migrants [https://perma.cc/a4s5-46zh]. 8 in new york, a court may either enter a finding of neglect or abuse against a parent or order an adjournment in contemplation of dismissal or a suspended judgement, which will allow the petition to be dismissed following a https://www.cfr.org/backgrounder/us-detention-child-migrants https://www.cfr.org/backgrounder/us-detention-child-migrants 506 colum. j. race & l. [vol. 11:501 the family regulation system, as the scholar dorothy roberts aptly describes the american child welfare system, is a continuation of this horrific american tradition.9 this system is perhaps one of the most glaring modern-day attempts to destroy the black family. it is one that identifies children and families believed to be in need of intervention, largely through institutions and professionals trained to detect and mandated to report signs of child maltreatment. but these systems—like law enforcement, social services, shelters, and public schools—are entrenched in low-income communities of color by design. they identify children “at risk” for maltreatment through cross-system surveillance—the “stop and frisk” equivalent to parenting10— that leads to a disproportionate number of black and brown families reported, investigated, and monitored for maltreatment. to many, the violation of privacy and the various forms of surveillance that are forced upon low-income communities and people of color are justified as being in service of safety and support. in reality, surveillance has a negative impact on these communities. in our society, while everyone is susceptible to some level of surveillance, not everyone receives the same amount. the power of surveillance “touches everyone, but its hand is heaviest in communities already disadvantaged by their poverty, race, religion, ethnicity, and immigration status.”11 while privacy rights exist, people who are low-income do not have the same means to exercise them.12 organizations like cfr employ attorneys, social workers, and parent advocates to represent parents when they are targeted by the family regulation system.13 in new york city, period of supervision. n.y. fam. ct. act §§ 1039, 1051–52. n.y. fam. ct. act 1046(a)(i) allows a prior finding of neglect or abuse to be used as evidence of abuse or neglect of any other child. 9 roberts, abolishing, supra note 1. 10 michelle burrell, what can the child welfare system learn in the wake of the floyd decision?: a comparison of stop-and-frisk policing and child welfare investigations, 22 cuny l. rev. 124, 130–38 (2019). 11 barton gellman & sam adler-bell, the disparate impact of surveillance, century found. (dec. 21, 2017), https://tcf.org/content/report/ disparate-impact-surveillance/?session=1&session=1 [https://perma.cc/28h4klph] 12 id. 13 cfr was founded in 2002 to dramatically improve outcomes for children and families and reduce reliance on foster care. cfr’s largest, primary target population is low-income parents who are summoned to family court by 2021] surveillance tentacles 507 where cfr is based, the family regulation system disproportionately impacts black and brown families for both family separation and increased surveillance. most of the allegations our clients face are poverty-related. they are issues that could be solved with money: children left at home because a parent could not afford to pay for childcare, insufficient food in the cabinets, unstable housing, lack of medical insurance to take children to the dentist or for routine checkups, etc. most families that come into contact with the family regulation system cannot afford to hire an attorney or social worker to help them navigate it. many states, like new york, do not require that family regulation workers inform parents of their rights not to speak with investigators or share information. whenever possible, cfr tries to connect with families during the investigation stage, but these resources are not available everywhere. the family regulation system works to prevent those it seeks to surveil and control from having access to legal support. in 2018, monroe county, new york, turned down funds that would have paid for public defense attorneys for parents.14 in new york city, the local family regulation system, called the administration for children’s services (acs), has publicly opposed proposed city and state laws that would require parents to be informed of their rights during an investigation. meanwhile, the family regulation system and its “surveillance tentacles” monitor families in low-income communities and increase their susceptibility to becoming entangled in the system. this rampant surveillance is inextricably linked to mandated reporting. laws in all fifty states enumerate which groups of people in each state are required to report suspected child abuse or maltreatment to each state’s child maltreatment hotline.15 school personnel and teachers, mental health the administration for children’s services (acs) in manhattan or queens, when acs alleges the parents have put their children at risk of maltreatment. cfr provides parents with holistic legal and social work support to enable children to live safely with their families and prevent the devastating consequences of foster care. 14 meaghan m. mcdermott, family advocate, monroe county at odds over rejected grant money, democrat & chron. (jan. 26, 2018, 1:55 pm), https://www.democratandchronicle.com/story/news/2018/01/26/family-advocatemonroe-county-nixing-grant-money-callous-political-expediency/1057855001/ [https://perma.cc/sfj3-lfpm]. 15 while some states require all people to report suspected maltreatment (idaho, new jersey, wyoming), most specify particular 508 colum. j. race & l. [vol. 11:501 professionals, drug treatment counselors, law enforcement personnel, and social workers are considered mandated reporters in most states. when a state’s child maltreatment hotline receives a credible report alleging child maltreatment, the local department of social services must initiate an investigation. as a result of their investigation, a family regulation worker may decide to file maltreatment allegations against a parent in court, which can in turn lead to the removal of a child or courtmandated services, or the family regulation worker may request that a parent voluntarily participate in services to avoid court involvement or a removal. each of these results leads to more surveillance and control over black and brown families’ daily activities. a parent targeted by the family regulation system will be under the scrutiny of various mandated reporters, from the initial reporter of the case, to the family regulation worker investigating the case, to the various service providers, mental health counselors, drug treatment providers, and social services workers the parent must interface with to apply for housing and public benefits. mandated reporters make approximately two-thirds of all child maltreatment reports made in the united states.16 the vast majority of reports to maltreatment hotlines are not substantiated. nationally, 4.1 million cases were called into child maltreatment hotlines in 2019. of the 4.1 million cases, 2.4 million were screened as potentially credible, with fewer than 400,000 (slightly less than 10%) determined to be credible upon further investigation.17 this means that millions of families are subject to an intrusive and traumatic investigation with no benefit to child safety, the purported purpose of mandated reporter laws. professionals required to make reports. see ariane frosh, the elephant circle, mandatory reporting: a guide for practitioners 1 (2020), https://static1.squarespace.com/static/57126eff60b5e92c3a226a53/t/5f84b886d7 a3130e832fa7e7/1602533514502/mandatory+reporter+laws+by+state.pdf [https://perma.cc/w2zz-tncn] (detailing professionals who are required to make reports by state). 16 u.s. dep’t health & hum. servs., child maltreatment 2018: summary of key findings 2 (2020), https://www.childwelfare.gov/ pubpdfs/canstats.pdf [https://perma.cc/6wvc-rwqh]. 17 frosh, supra note 15. 2021] surveillance tentacles 509 black and brown families are disproportionately impacted by family regulation investigations.18 53% of black children living in the united states experience a family regulation investigation during their lifetime.19 the cumulative risk of experiencing an investigation is much higher for children living in low-income and/or non-white neighborhoods. this means that children living in low-income, non-white communities are much more likely than white children to experience multiple family regulation investigations throughout their childhood.20 in new york city, the rate of investigations was about four times higher in the ten districts with the highest rates of child poverty than the ten districts with the lowest child poverty rates.21 in districts with similar child poverty rates, districts with larger black and brown populations had higher rates of investigation.22 ii. the surveillance tentacles families involved in the family regulation system often feel trapped or as though they have been set up for failure. in shattered bonds, dorothy roberts describes how a “family’s fate becomes focused on a list of tasks a caseworker has typed or scribbled on a form” and failure could mean family separation.23 the family regulation system relies on the “tentacles” in other systems to surveil and report families for investigation. families are pulled into the family regulation system through systems that they are told to rely on for support: the public assistance office, substance abuse programs, mental health clinics, their child’s school, the local police department, or a prevention services program. families in need of assistance must accept 18 hyunil kim & brett drake, child maltreatment risk as a function of poverty and race/ethnicity in the usa, 47 int’l j. epidemiology 780, 781 (2018). 19 hyunil kim et al., lifetime prevalence of investigating child maltreatment among us children, 107 am. j. pub. health 274, 277 (2017). 20 kelley fong, neighborhood inequality in the prevalence of reported and substantiated child maltreatment, 90 child abuse & neglect 13, 14 (2019). 21 angela butel, the new sch.: ctr. for n.y.c. affs., child welfare investigations in new york city neighborhoods, 1 (2019), https://static1.squarespace.com/static/53ee4f0be4b015b9c3690d84/t/5d12746c3c daa000017dfc2a/1561490541660/databrief.pdf [https://perma.cc/yk7b-4khb]. 22 id. 23 dorothy roberts, shattered bonds: the color of child welfare 80 (2002) [hereinafter roberts, shattered bonds]. 510 colum. j. race & l. [vol. 11:501 support from these institutions that come with a high level of control, surveillance, and risk of family regulation involvement. the tentacles feed families into the family regulation system, and once entangled, often make it more difficult for them to escape. a. surveillance disguised as support in mental health and social services leslie is a 19-year-old black woman who recently gave birth to her first child. when she was interviewed by a hospital social worker, she disclosed that she was diagnosed with a mental health condition and took psychotropic medication when growing up in the foster care system. she couldn’t recall the specifics, other than that she stopped taking medication when she turned eighteen and voluntarily signed herself out of foster care. the hospital social worker made a report to the family regulation system, reporting a possible risk to the newborn due to leslie’s untreated mental health condition. the family regulation worker who responded to the report was able to review leslie’s records from her time in foster care. she noted that leslie was diagnosed with bipolar ii disorder when she was fourteen and was prescribed depakote. leslie agreed to cooperate with prevention services, who would monitor her engagement in mental health services, over the alternative of her newborn going into foster care. because leslie agreed to engage in services, her case was never filed in court; she did not have access to an attorney to inquire about her options. leslie lost her housing because the family members she was living with were uncomfortable with the prevention services agency making regular home visits and entered a family shelter. leslie had to quit her part-time job as she had no childcare options, and she could not place her child in daycare until he was at least six months old. leslie struggled with enrolling in mental health services for the same reason, prolonging the length of time her family was monitored. leslie started to feel depressed and 2021] surveillance tentacles 511 anxious due to the laundry list of services she was required to engage in, the lack of support she had access to due to living in the shelter, and the constant visits to her unit by social workers. leslie didn’t disclose this to the preventive caseworker, as she knew the disclosure would mean more intervention and monitoring when all she wanted was to be able to make her own decisions for herself and her son. *** mandated reporters surveil families in settings that provide essential resources like hospitals, homeless shelters, and public assistance offices, creating a dangerous conflict for families who need and seek out support, not family monitoring and regulation. medical providers, mental health agencies, public benefits and emergency housing agencies all fall into the category of institutions and services that both surveil and provide essential material support.24 the family regulation system positions staff from these institutions as surveillance agents, who are ready to report any possible sign of maltreatment, undermining any benefit or genuine support to the families they serve. the family regulation system does not surveil all families equally: the system’s reliance on institutions that are designated to help those in need suggests that the family regulation system is only interested in regulating certain types of families and communities, while the private lives of more privileged communities remain out of view of mandated reporters. these surveillance tentacles, which are primary referral sources for the family regulation system, serve low-income families and marginalized communities by design. black and brown communities are disproportionately targeted and reported for child maltreatment as a result of the over-surveillance and bias from mandated reporters. a family’s race and socio-economic level significantly increase the likelihood that they will be reported to the family regulation system when all other factors remain the same. low-income families and families residing in low-income neighborhoods are most likely to 24 frosh, supra note 15 (detailing the medical providers, mental health agencies, and other agencies required to make reports by state). 512 colum. j. race & l. [vol. 11:501 be reported for child maltreatment.25 low-income black and brown families are far more likely to be reported than white families in the same low-income neighborhood.26 bias also appears in how medical professionals identify abuse. studies have found that pediatricians diagnose child abuse at a higher rate among low-income families.27 when socioeconomic cues were reversed, doctors reversed their diagnostic decisions in forty percent of potential child abuse cases.28 another study showed that black, brown, and native children are more likely to be reported for potentially abusive bone fractures.29 low-resourced families can become entangled in the family regulation system when they try to access support or essential services from the surveillance tentacles comprised of mandated reporters. medical personnel are the source of approximately 10% of national child maltreatment reports; mental health professionals make up about 6% of reports; and other social services personnel constitute a little under 11%.30 medical professionals may make a maltreatment report if a parent misses a child’s follow up appointment, has a concern that a parent waited too long to seek treatment for a child, or if the doctor observed a bruise that the parent could not explain. hospital staff also regularly report mothers who test positive for illicit drugs, even when the mother is already engaged in a substance abuse program or the substance is marijuana, which has not been linked to any detrimental effects or risk for the child. mental health professionals may make a child maltreatment report when a parent discloses domestic violence in the home or if there is a concern for a parent’s mental health due to missed appointments. substance abuse treatment providers may report parents who test positive for illicit substances or who are not fully compliant with programs, even when there is no evidence of child endangerment. parents who regularly interact with the surveillance tentacles are subject to 25 fong, supra note 20, at 14. 26 id. 27 stephanie clifford, two families, two fates: when the misdiagnosis is child abuse, marshall project (aug. 20, 2020, 6:00 am), https://www.themarshallproject.org/2020/08/20/two-families-two-fates-whenthe-misdiagnosis-is-child-abuse) [https://perma.cc/u8nw-evas]. 28 id. 29 id. 30 u.s. dep’t health & hum. servs., supra note 16, at 9. 2021] surveillance tentacles 513 constant scrutiny by mandated reporters and are only a phone call away from family regulation system involvement. families experiencing housing instability are at greater risk for being investigated for child maltreatment and becoming entangled in the family regulation system.31 families who have no other option than to live in emergency temporary housing have reason to fear engaging and accessing natural supports which make them more vulnerable to the surveillance associated with the family regulation system.32 while the relationship between housing instability and alleged child maltreatment is complex, a 2004 study posited that one possible explanation is the “fishbowl effect,” due to the surveillance over families in shelters and increased likelihood of family regulation system involvement when a family experiences multiple shelter stays.33 the fishbowl effect occurs when “families, once in the shelter system, are subject to heightened scrutiny from service providers in homeless shelters, and people are more likely to refer them to child welfare professionals.”34 the study also points to a link between the social and community isolation of homeless families on the increased likelihood of becoming involved in the family regulation system. the family regulation system’s vigilant and unrelenting surveillance of low-income black and brown communities disincentivizes parents from seeking supportive services. cfr’s clients regularly express fear of the family regulation system in explaining why they did not seek immediate medical treatment after their child sustained a minor injury. pregnant women who use substances may fail to obtain prenatal treatment due to concerns of surveillance. reports by providers expose families to the added trauma of a punitive family regulation investigation and possible removal of a child. these reports also break down the treatment relationship: one study found that about 31 katherine e. marcal, the impact of housing instability on child maltreatment: a causal investigation, 21 j. fam. soc. work 332, 332–35 (2018); susan m. barrow & terese lawinski, contexts of mother-child separations in homeless families, 9 analyses soc. issues & pub. pol’y 157, 158 (2009). 32 jung min park et al., child welfare involvement among children in homeless families, 83 child welfare 423, 432–33 (2004). 33 id. at 433–34. 34 id. at 433. 514 colum. j. race & l. [vol. 11:501 one-fourth of families receiving mental health treatment will experience a disruption in treatment following a report.35 the covid-19 pandemic, which disproportionately impacts people of color,36 has also highlighted the negative effect of mandated reporting on marginalized communities. as a result of the pandemic, acs publicly increased their reliance on surveillance from the department of homeless services and the public hospital system, in addition to other tentacles that feed into the family regulation system, when reports from schools fell due to the switch to remote learning. acs commented, regarding their 2021 budget, that “[i]n response to decreasing rates of reporting, acs has strengthened collaboration with other mandated reporters, such as the department of homeless services, department of education, and health+hospitals.”37 families who already have little control over basic parenting decisions because they reside in family shelters or engage with public social service agencies should not be subject to unequal scrutiny during a global public health crisis. acs increased their reliance on mandated reporters from surveillance tentacles who continued to engage with low-resourced families during the pandemic, like hospitals and homeless shelters, and appeared to encourage a heightened vigilance beyond the legal requirement for mandated reporters. the family regulation system does not recognize the limitations imposed on homeless families as a result of shelter rules and regulations, and has prioritized surveillance over examining methods for reducing compounding stressors that homeless families face. the family regulation system focused public resources on surveillance, not direct assistance of food or clothing, child care or material support, during an unprecedented public health crisis. this decision reflects the system’s deeply ingrained bias and disparate treatment towards low-income 35 gary b. melton, mandated reporting: a policy without reason, 29 child abuse & neglect 9, 14 (2005). 36 don bambino geno tai et al., the disproportionate impact of covid-19 on racial and ethnic minorities in the united states, 72 clinical infectious diseases 705, 705 (2021). 37 the n.y.c. council, note on the fiscal 2021 executive budget for the administration for children’s services (acs) committee on general welfare and the committee on justice system 1, 4 (2020), https://council.nyc.gov/budget/wp-content/uploads/sites/54/2020/06/acsbudget-note.pdf [https://perma.cc/y8ff-dws9]. 2021] surveillance tentacles 515 communities, primarily black and brown families, by suggesting that child maltreatment can be reduced through surveillance, not support. this prioritization goes against an abundance of research demonstrating that rates of child maltreatment are reduced when public assistance and special supplemental nutrition program for women, infants, and children (wic) payments are increased, or when more child support dollars reach families.38 families who need assistance—whether in the form of resources or clinical services and support—engage with service providers differently when they are aware of the service providers’ obligation to report or their potential bias.39 many parents living in communities targeted by carceral systems understand that engaging with providers and institutions, while sometimes necessary, exposes them to additional risks. some families find themselves in a catch-22 of needing to interact with certain institutions to avoid allegations of maltreatment—like schools and doctor’s offices—despite those institutions increasing their risk of being reported for maltreatment. research shows that parents who are conscious of this predicament change their behaviors and interactions with providers as a result.40 the fear of surveillance can therefore prevent mental health, substance abuse, and medical professionals from connecting families with social services that could actually address the family’s needs. if the families who are most in need of support do not feel comfortable or safe engaging with the institutions designed to service them, the efficacy and utility of these services, and the systems that fuel them, must be examined and fundamentally reimagined. institutions like public hospitals and clinics, family shelters, and public assistance offices are created with the intention to provide essential services to the communities they serve. but, the interplay between the family regulation system and institutions governed by mandated reporter laws prevents families in need from accessing genuine support and punishes communities targeted for family regulation. parents living in 38 maria cancian et al., the effect of additional child support income on the risk of child maltreatment, 87 soc. serv. rev. 417, 429–30 (2013). 39 kelley fong, child welfare involvement and contexts of poverty: the role of parental adversities, social networks, and social services, 72 child. & youth servs. rev. 5, 11–12. 40 id. 516 colum. j. race & l. [vol. 11:501 low-income communities and communities of color are familiar with the risks associated with these institutions—they might avoid or over-access services in an attempt to protect themselves and their children from a report to the family regulation system, or a neglect filing after the system has already become involved. in order for communities to benefit from these services, we must reimagine how these powerful systems support the families they serve. institutions working in communities impacted by raciallyoppressive systems must change their behavior so that symptoms of poverty are not categorized as maltreatment, and the responsibility to link families to resources is not passed on to the family regulation system. this behavior change must be informed by an understanding of the cultural identity of the community being served—not only through research, but through listening and collaborating directly with community members. service provision must be both culturally sensitive and detached from the surveillance associated with the family regulation system in order to prevent further harm to marginalized communities. as a society, we must begin to invest in social programming that reaches all families who need support without the punitive function of the family regulation system. in order for these institutions to effectively connect families to the appropriate support, that support must be able to flourish within communities and outside of carceral systems. b. schools as systems of surveillance paul is a 35-year-old black single father caring for his son jordan, who has special needs. paul was en route to the pediatric emergency room psychiatric unit after receiving a call from his son jordan’s private school. this was not the first or second time he would receive a call at work. it was a pattern. paul was at risk of losing his job but had no choice but to leave work early once again. the school told him they had not only sent his son to the emergency room, but they had called to make another child maltreatment report because paul had missed too many days of school that month. every time a family regulation worker visited their home, jordan would have a meltdown the next day. the bus driver would refuse to allow him on the bus, and jordan would 2021] surveillance tentacles 517 miss more school. even though the school staff were well aware of how jordan’s behavioral challenges were making it difficult for paul to get him to school before going to work, they continued to report the family to the family regulation system and called the police when jordan’s behaviors became difficult to manage. when paul arrived at the emergency room, jordan was already calm. on the way home, jordan quietly asked his father if he was a bad person. shocked, paul asked jordan why he would think that about himself. jordan looked away for a few minutes, then told his father, “because the police always come to get me.” *** educational professionals working in low-income black and brown neighborhoods make up one of the family regulation system’s strongest surveillance tentacles. school personnel account for over 20% of all child maltreatment reports made nationally, the highest report rate of any professional group.41 the family regulation system relies heavily on reports from school staff as they often have the most exposure to children outside of their families, making them uniquely situated to expose possible neglect. the family regulation system often directly partners with schools, encouraging school personnel to closely monitor students for signs of neglect or abuse, outside of excessive school absence or lateness. school staff that suspect a student may be hungry, unkempt, or experiencing mental health issues are mandated to address these types of concerns through a report to the family regulation system, rather than offer genuine assistance or support. but, the belief that schools are best suited to detect child maltreatment is largely unsupported: recent federal data shows that 90% of child maltreatment reports called in by teachers were not substantiated.42 unsubstantiated reports of child maltreatment are not harmless; they can still pull parents into the tentacles of the 41 u.s. dep’t health & hum. servs., supra note 16, at 6. 42 eli hager, is child maltreatment really rising during the pandemic?, marshall project (june 15, 2020, 5:00 am), https://www.themarshallproject.org/2020/06/15/is-child-abuse-really-risingduring-the-pandemic [https://perma.cc/arh5-xscl]. 518 colum. j. race & l. [vol. 11:501 family regulation system. in most states, unfounded reports of child maltreatment are documented and remain accessible to the family regulation system for many years following the report. parents who are the subject of an unsubstantiated report called in by their child’s school are subject to intrusion from family regulation workers during their investigation and may be pressured to participate voluntarily in prevention or other supportive services that place them under additional scrutiny from mandated reporters. a visit from a family regulation worker is often a traumatic experience for parents and children, and it can erode the family’s trust and collaboration with the educational and school community.43 just as the family regulation system depends on schools as surveillance agents, schools depend on surveillance from law enforcement and the family regulation system to surveil and control students and parents. black children, brown children, native children, and children with disabilities often attend schools with fewer resources. instead of providing supportive services to students or connecting families to resources in the community, these schools often turn to systems of surveillance, including the family regulation system, to control students in their classrooms. inadequately trained school and support staff frequently request help from family regulation workers and law enforcement to address behavioral problems and other concerns. parents often report that schools call the family regulation system when their child becomes a “problem” in school. in many districts, police are also embedded into the school system itself. police are trained to detain, handcuff, and arrest. they are not trained to address behavioral problems or to prevent or de-escalate conflicts. similarly, instead of working with struggling parents or attempting to connect them and their children with material support or services to address the needs that often arise for families living in poverty, schools report parents to the family regulation system and wipe their hands of the responsibility to assist. twenty years ago, mass shootings in affluent communities from columbine to sandy hook and parkland created a new market for surveillance to promote school safety 43 melton, supra note 35, at 12. 2021] surveillance tentacles 519 and security in schools across america.44 low-income black and brown students in urban communities that do not have a history of mass shootings experience the impact of greater surveillance quite differently than those in white affluent schools. 45 in low-income black and brown communities, schools turn to school resource or security officers trained and supervised by police to patrol the halls and the family regulation system to control parents. schools use a zero-tolerance policy of punitive, exclusionary discipline that includes suspensions, expulsions, and a dependence on the court system to bring delinquency proceedings against children. in september 2019, a florida police officer arrested and handcuffed a six-year-old black girl for having a tantrum in class.46 in 2014, a seven-year-old black boy was handcuffed by a school resource officer in missouri after yelling about being bullied.47 these practices disconnect children from school and criminalize behavior related to disorderly conduct, which places them at greater risk of educational disengagement.48 this all feeds into the school-to-prison pipeline, a pathway to the prison industrial complex.49 the dependence on surveillance in public schools has wreaked havoc on low-income 44 j. william tucker & amelia vance, school surveillance: the consequences for equity and privacy, 2 educ. leaders rep. 1, 7–8 (2016). 45 see interview by ann bradley with peter langman, clinical director, kidspeace, and katherine newman, professor of sociology, princeton university (apr. 20, 2009), https://edweek.org/leadership/what-we-havelearned-about-school-shooters-10-years-after-columbine [https://perma.cc/gjd7-67jd] (describing these tragedies as “overwhelmingly happen[ing] in places with low levels of violence, and hence no violence prevention programs in place. the residents thing [sic] this sort of thing happens in new york and chicago when, in reality, it never does. all kinds of violence goes down in big cities, but not this kind”). 46 leonard pitts jr., leonard pitts: black officer arrests black 6-yearold. it doesn’t mean racism didn’t make him do it, press herald (sept. 24, 2019), https://www.pressherald.com/2019/09/25/leonard-pitts-black-officerarrests-black-6-year-old-it-doesnt-mean-racism-didnt-make-him-do-it/# [https://perma.cc/hdb2-u6ht]. 47 rebecca klein, family sues after 7-year-old gets handcuffed at school for crying, huffington post (sept. 15, 2016 6:17 pm), https://www.huffpost.com/entry/kaylb-primm_n_57d9b706e4b04a1497b23f1b [https://perma.cc/4upv-67jm]. 48 a look at school discipline: zero tolerance discipline, discrimination, and the school to prison pipeline, n.y. civ. liberties union, https://nyclu.org/en/look-school-discipline#-ft_nref4 [https://perma.cc/p3fsuf9e] (last visited feb. 23, 2021). 49 id. 520 colum. j. race & l. [vol. 11:501 black and brown children, with little apparent benefit to school safety.50 the cross-system surveillance and partnership between schools, law enforcement, and the family regulation system play a significant role in traumatizing black and brown students, parents, and families living in marginalized communities. this trauma can negatively impact educational outcomes for children, along with their employment stability, physical health, and criminal justice involvement later in life. educational institutions must begin to sever ties with law enforcement and create spaces for healing, restoration, and transformation in schools. schools must divest from law enforcement and prosecution and invest in professionals trained to prevent and address trauma and behavioral issues, de-escalate crises, and resolve conflicts. in new york city, only 2,800 full-time guidance counselors work in public schools, compared to 5,511 new york police department school safety agents.51 this call for a shift in resources must also extend to ending surveillance from the family regulation system and prioritizing material support. the healing-centered schools workgroup in the bronx, new york, is an example of how communities can reduce surveillance from the family regulation system and continue to support families.52 the workgroup is a coalition of parents, students, educators, mental health providers, and advocates who believe that when students are given a space to heal, learn, and 50 charlotte pope, child.’s def. fund n.y., “unthinkable”: a history of policing in nyc public schools and the path toward police-free schools (2019), https://www.cdfny.org/wp-content/uploads/sites/ 3/2019/10/cdf-ny-report-history-of-policing-in-nyc-public-schools.pdf?_ ga=2.158663354.1266419985.1608165692-617824654.1608165692 [https://perma.cc/3e3f-25t6] (noting that between 1999–2000, there was a 101% increase of criminal court summons served on students, while 67% of principals reported there had been little change in school safety). 51 urb. youth collaborative & ctr. for popular democracy, the $746 million a year school-to-prison pipeline: the ineffective, discriminatory, and costly process of criminalizing new york city students 2 (2017), https://populardemocracy.org/sites/default/files/ stpp_layout_web_final.pdf [https://perma.cc/7r6c-d97j]. 52 nancy bedard et al., community roadmap to bring healingcentered schools to the bronx: a project of the healing-centered schools working group (katrina feldkamp ed., 2020), https://www.legalservicesnyc.org/storage/pdfs/community%20roadmap%20to %20bring%20healing-centered%20schools%20to%20the%20bronx.pdf [https://perma.cc/a68w-xgw7]. 2021] surveillance tentacles 521 exist in community with one another, they are able to grow their strengths and build a foundation for success.53 healing-centered educational practices can produce positive outcomes for students’ social-emotional well-being, staff wellness, parent/caregiver trust, and school structure.54 the workgroup recognized that social-emotional well-being as a necessary ingredient for learning,55 and ensured that all students, parents/caregivers, and staff feel physically, psychologically, and emotionally safe in their school. students, parents/caregivers, and staff are critical partners in creating a supportive school environment and are central to decision-making and community-building. school resource officers were also removed from the schools, and community members were hired to provide support and de-escalation when necessary.56 c. law enforcement and the family regulation system: partners in surveillance kim is a 30-year-old hispanic mother of two children. kim was recently granted a full stay away order of protection against the father of her children and agreed to regular visits from the domestic violence unit at her local precinct, believing they would help her and her children stay safe. when kim called the domestic violence officer and reported that her former partner had pushed her into a wall in front of their newborn, she never expected to become the subject of an investigation herself. kim was struggling to make it to the wic office that week because her toddler was sick, and she had allowed her former partner back in the home to drop off diapers and formula for the baby. the day after kim called the police, a family regulation worker showed up on her doorstep. she was told to come to their office for a conference. the worker told kim that they were concerned that there had been multiple instances of domestic violence in front of her baby and that she had not taken sufficient steps to protect her 53 id. at 3. 54 id. at 18. 55 id. at 22. 56 bedard, supra note 52, at 84–85. 522 colum. j. race & l. [vol. 11:501 children. kim was told that they would file a neglect petition against her former partner, but she needed to enter a domestic violence shelter, submit to a mental health evaluation, and consent to supervision of her home by the court and the family regulation system in order to avoid becoming a respondent as well. if she refused to agree to these terms, then the family regulation agency would seek to remove her children. *** law enforcement and family regulation officials are two sides of the same racially-oppressive coin and work hand in hand to perpetuate surveillance and control over black and brown communities. in 2015, the police were the source of one-fifth of all family regulation investigations.57 this number is significant given what we know about how black and brown people are disproportionately targeted by the police. black men make up 13% of the total male population but are 35% of those incarcerated.58 targeting by the police feeds the family regulation system through increased surveillance of black and brown communities. black people are more likely to be “stopped by the police, detained pretrial, charged with more serious crimes, and sentenced more harshly than white people.”59 a criminal court judge’s choice to incarcerate a single parent is effectively a choice to place their child in foster care. when parents are incarcerated, their children may stay in care longer, especially if there are no family members to care for the child. once behind bars, it is harder for the parent to plan for the return of the child, stay in communication with them, engage in services they need, and maintain their family bond. many may lose their housing and employment while they wait for their criminal court case to proceed, making reunification even harder. for parents like kim, who are not even accused of a criminal offense, there is still a risk of an interaction with law 57 frank edwards, family surveillance: police and the reporting of child abuse and neglect, 5 crim. just. contact & ineq. 50, 50 (2019). 58 elizabeth hinton et al., vera inst. j., an unjust burden: the disparate treatment of black americans in the criminal justice system (dec. 20, 2020), https://www.vera.org/downloads/publications/for-therecord-unjust-burden-racial-disparities.pdf [https://perma.cc/p7qd-5l2k]. 59 id. https://www.vera.org/downloads/publications/for-the-record-unjust-burden-racial-disparities.pdf https://www.vera.org/downloads/publications/for-the-record-unjust-burden-racial-disparities.pdf 2021] surveillance tentacles 523 enforcement leading to more surveillance by the family regulation system. when families cannot rely on police for protection, they are less safe. as discussed above, families even face exposure to law enforcement in the school system. black parents must be concerned about their, and their children’s, physical safety during interactions with police in the community, at school, and in their homes. they must also be concerned that they will be reported to the family regulation system and risk separation. parents like kim recognize that they cannot rely on law enforcement for protection or the family regulation system for support. they know that there are eyes everywhere and that, unlike other mandated reporters, law enforcement requires an even more heightened level of awareness. black and brown parents may be less likely to call the police because they know it can result in involvement with the family regulation system, even when there may be a genuine concern for their personal safety. in 2019, 32% of cfr clients had criminal court cases concurrent to their family court proceedings, 19% were domestic violence survivors, 19% were accused domestic violence perpetrators, 24% had allegations related to domestic violence, and 10% had allegations related to criminal activity. in many cases the allegations a parent faces in criminal court mirror those being made in family court. however, to the extent that the family regulation system is ill equipped to address the real needs of a family, the criminal court system is even worse. parents in this situation often have to deal with conflicting family court and criminal court orders. the demands put on their time by the criminal court system and family regulation system often make it difficult to fully comply with both. organizations like cfr offer wraparound services so that parents can be represented in multiple systems by one law office, with social worker support. many parents do not have that option. as a result, miscommunications can occur between lawyers, or decisions are made without full access to information about the other case, leading to more delays to reunification. a common refrain of the movement to defund the police is that the significant number of resources given to the police would be better served if they were invested in communities. the call to “defund” does not mean abolish policing. and even some who say abolish, do not necessarily mean to do away with law 524 colum. j. race & l. [vol. 11:501 enforcement altogether.60 rather, they want to see the rotten trees of policing chopped down and fresh roots replanted anew.”61 the role law enforcement plays in worsening the impact of the family regulation system on black and brown families is a part of a rotten system that needs replanting. black parents should not have more to fear from law enforcement involvement than other families. there are concrete steps that can be taken to address the destructive role that law enforcement plays in the family regulation system. divestment from the american policing system by shifting “financing away from surveillance and punishment, and toward fostering equitable, healthy, and safe communities” would go a long way in addressing the problems of the family regulation system, which punishes poverty with family separation and surveillance.62 beyond divestment, parents should be treated with respect during interactions with law enforcement. when completing an arrest, the police must be required to allow a parent to make alternative caretaking plans for their child, without interference from the family regulation system. police must be sensitive to the presence of a child in their interactions with parents and families. the family regulation system should not rely on the assistance of law enforcement when a parent refuses access to a home absent a genuine belief that a child is in imminent risk of harm. family regulation workers must be prohibited from using the fear of police brutality as a means of gaining access to children in their homes. finally, in cases where a parent faces the same allegations in criminal court as they do in family court, the criminal court judge should be prohibited from issuing orders preventing a parent from contacting a child. these orders often tie the hands of the family court judge, who is best positioned to assess the appropriate level of contact. the american system of policing, like the family regulation system, 60 rashawn ray, what does ‘defund the police’ mean and does it have merit?, brookings inst. (june 19, 2020), www.brookings.edu/blog/fixgov/ 2020/06/19/what-does-defund-the-police-mean-and-does-it-have-merit/ [https://perma.cc/u6ng-y9mm]. 61 id. 62 annie lowrey, defund the police: america needs to rethink its priorities for the whole criminal-justice system, atlantic (june 5, 2020), www.theatlantic.com/ideas/archive/2020/06/defund-police/612682/ [https://perma.cc/3he4-4mrl]. 2021] surveillance tentacles 525 has its roots in white supremacy and racism.63 the steps laid out above are by no means presented as a complete solution to the very real and deeply seated problems of both systems. they are steps that could easily be implemented via internal policy changes or passing appropriate legislation. d. surveillance masked as protection: the family regulation system jasmine is a 40-year-old black mother of four children. jasmine is concerned that her oldest daughter, amanda, might belong to a gang and has noticed cuts on her arms. jasmine has tried to encourage amanda to talk to a therapist, but every time she makes an appointment, amanda refuses to go. a friend tells jasmine to call the child maltreatment hotline and ask for help. if she doesn’t, her friend warned, she could risk having a case called in regardless, and the family regulation agency could remove her younger children. jasmine makes the call, and is relieved when the agency offers to help. during the initial home visit, the family regulation worker surveys jasmine’s home. he observes a wine bottle on the kitchen table and writes in his notepad. he asks jasmine if she’ll submit to a drug and alcohol test. the family regulation worker called jasmine later that week and explained that the agency consultant is recommending intensive prevention services. the prevention worker will make three home visits a week and will send jasmine for random toxicology tests. since amanda is turning eighteen in two weeks, it will be amanda’s choice whether to engage in the services. however, because amanda is living in the home with jasmine and the three younger children, jasmine will still be responsible for getting amanda into mental health services and addressing any safety concerns, including enrolling in drug and alcohol 63 paige fernandez, defunding the police will actually make us safer, am. civ. liberties union (june 11, 2020), https://www.aclu.org/news/criminallaw-reform/defunding-the-police-will-actually-make-us-safer/ [https://perma.cc/t5yd-z96p]. 526 colum. j. race & l. [vol. 11:501 treatment if any additional toxicology screens are positive for alcohol. jasmine felt like telling the prevention worker she no longer wanted services but was afraid of what might happen next. *** just as targeted policing leads to the disproportionate representation of black and brown bodies in criminal courts and prisons, the over-surveillance perpetrated by the family regulation system leads to a disproportionate number of black and brown children living under the supervision of the family regulation system, whether through a child maltreatment investigation, voluntary or court ordered services, or in the worst scenario, the placement of a child in foster care. black children make up only 13.8% of the total national child population, but they make up 24.3% of children in foster care.64 a child who is removed from their parent by the family regulation system and placed in foster care can be exposed to significant risk of harm, which can be more detrimental than remaining even with a neglectful or abusive parent. the separation of a child from his parent is a trauma in and of itself that can have dire shortand long-term consequences on a child’s behavioral and mental health.65 family separation can disrupt a child’s brain architecture, harming a child’s development.66 removal of a child from a parent can cause separation anxiety and attachment disorders, which manifest with immediate emotional and physical symptoms and can cause depression and aggression later in life.67 children also experience grief and confusion following the separation from their family, which can also have detrimental effects on the child.68 numerous studies demonstrate that foster care itself is harmful to children and leads to poorer outcomes. adults who were placed in foster care as children have substantially higher 64 child welfare info. gateway, racial disproportionality and disparity in child welfare 3 (2016). 65 shanta trivedi, the harm of child removal, 43 n.y.u. rev. l. & soc. change 523, 527 (2019) 66 julie m. linton et al., detention of immigrant children, pediatrics, apr. 2017, at 6. 67 trivedi, supra note 65, at 528. 68 id. at 532–34. 2021] surveillance tentacles 527 rates of mental illness when compared with other adults.69 even more disturbingly, adults who grew up in foster care are twice as likely to develop post-traumatic stress disorder than war veterans.70 children in foster care, particularly those who have had multiple placements, are significantly more likely to have contact with the delinquency system. by age seventeen, over half of foster youth had been arrested and over one-third had spent a night in a correctional facility.71 the harms of foster care are well documented and have been extensively researched, but communities most impacted by the family regulation system are also at risk of harm from crosssystem surveillance, which can also lead to poor outcomes even when children remain at home with their parents. investigations and services demanded by the family regulation system can be highly disruptive to families without providing the material support that could ameliorate the poverty-related concern that first brought the family in contact with the system. investigations and service requirements can cause loss of housing, employment, and public benefits, which are often exacerbated by court intervention and/or the removal of a child from the household. in some states, including new york, the family regulation agency may ask the court to give it the power to surveil a family, even when they are not seeking to remove a child. in these cases, the court may direct the family to cooperate with the agency, authorize the worker to make home visits, communicate with the family’s therapists and mental health professionals, and report to the court regarding the compliance with any court orders and/or services.72 workers can make surprise home visits, and the family is legally obligated to cooperate. courts often order parents to sign releases to disclose their family’s private medical 69 foster care alumni studs., improving family foster care: findings from the northwest foster care alumni study (2005), https://caseyfamilypro-wpengine.netdna-ssl.com/media/alumnistudies_nw_ report_fr.pdf [https://perma.cc/sm7n-tgj2]. 70 id. 71 mark e. courtney et al., midwest evaluation of the adult functioning of former foster youth: conditions of youth preparing to leave state care (2004), https://www.chapinhall.org/wpcontent/uploads/midwest-study-youth-preparing-to-leave-care-brief.pdf [https://perma.cc/3347-3h5f]. 72 n.y. fam. ct. act §§ 1052, 1057. https://caseyfamilypro-wpengine.netdna-ssl.com/media/alumnistudies_nw_report_fr.pdf https://caseyfamilypro-wpengine.netdna-ssl.com/media/alumnistudies_nw_report_fr.pdf https://caseyfamilypro-wpengine.netdna-ssl.com/media/alumnistudies_nw_report_fr.pdf 528 colum. j. race & l. [vol. 11:501 information to providers working with the family. parents are monitored and required to accept referrals from the same agency responsible for prosecuting the case against them in court. this court-sanctioned monitoring is an attempt to legitimize government surveillance as a necessity for keeping children safe. the family regulation system expects parents like jasmine to benefit from and engage in services with the threat of her children being removed looming over them. family regulation workers threaten to remove children if the parent does not agree to engage in services and cooperate with their demands. the system views a failure to cooperate or reluctance to consent as safety concerns, leading to increased or prolonged surveillance. sometimes the agency attempts to convince a parent to agree to additional services, without a court order, to avoid family separation or court intervention. the formal investigation ends, but the surveillance and monitoring continue through the service providers working with the family. some states have committed to focusing more of their resources on family preservation services as alternatives to removal and investigation, citing the family regulation system’s disproportionate impact on low-income black and brown families. in 2018, there were approximately 1.3 million instances of children receiving “postresponse services” to prevent future instances of child maltreatment or after a child maltreatment investigation.73 the family regulation system claims that the expansion of services that purport to support families rather than separate them will benefit communities targeted for family regulation. however, because these services are offered through the family regulation system, increasing its reach and ability to monitor and surveil, they can also be coercive and harmful to marginalized communities. a number of evidenced-based models have been developed as a result of the increased need for family preservation services.74 the family regulation system uses 73 u.s. dep’t health & hum. servs., supra note 16, at 70. 74 the standard for becoming an “evidence-based” model varies depending on what clearinghouse or assessment criteria is used; however, these models all have some formal research component which “validates” that the model is effective with a given population. see, e.g., casey fam. programs, implementing evidence-based child welfare: the new york city experience (2017), https://fpg.unc.edu/sites/fpg.unc.edu/files/ 2021] surveillance tentacles 529 intensive evidence-based models to deliver clinical services in families’ homes, making them more accessible for families who may otherwise struggle to access services. but, these services, which are contracted and funded by family regulation agencies, are also used as monitoring agents who have frequent access to the family and can report any potential safety concern. prevention agencies are required to document casework contacts in a system accessible by family regulation workers, regardless of whether a family has engaged voluntarily or has engaged pursuant to a court mandate. information like psychotherapy notes, which would normally be restricted under privacy laws, are visible to the family regulation agency. these notes can be accessed after the case is closed if the agency becomes involved with the family in the future, keeping generations of impacted families tangled in the web of the family regulation system while also weakening family support and increasing the likelihood of family separation. the federal government has prioritized increased funding for alternative responses to foster care through the passage of the family first prevention services act.75 this federal legislation allows states to claim funds for prevention services that are supported by research. similarly in new york city, acs recently announced plans to expand the cares program.76 cares is an alternative to investigation offered to families who are open to working with acs and need support. in exchange for cooperating with service referrals, the parent will avoid a substantiated report with the child maltreatment hotline. these offerings are certainly preferable to investigations or removals; however, they fail to address the root causes for the majority of neglect allegations, and instead vastly increase the number of families resources/reports-and-policy-briefs/evidence-based-child-welfare-nyc.pdf [https://perma.cc/l38t-2jqc]. 75 family first legislation, nat’l conf. state legislatures (jan. 15, 2021), https://www.ncsl.org/research/human-services/family-first-updatesand-new-legislation.aspx [https://perma.cc/w4zq-ln8b]. 76 press release, admin. for child.’s servs., administration for children’s services announces citywide expansion & renaming of the ‘family assessment response;’ now known as ‘cares,’ alternative child welfare approach works hand-in-hand with families to provide support without the need for a traditional investigation or court involvement (oct. 19, 2020), https://www1.nyc.gov/assets/acs/pdf/pressreleases/2020/ acscaresexpansion.pdf [https://perma.cc/m3ff-ppqr]. cares stands for collaborative assessment, response, engagement & support. id. at 1. 530 colum. j. race & l. [vol. 11:501 under government surveillance and supervision. impacted families should not have to give up their privacy in exchange for genuine support and aid. as dorothy roberts points out, we cannot expect even the most intensive prevention services to fix the family regulation system—especially when services designated to keep families together operate within the same system that tears them apart.77 the family regulation system may appear less punitive when directing federal funds to programs that allow children to remain home with their parents with services instead of going into foster care. however, we must recognize how prioritizing family preservation in the form of services over financial support and concrete needs perpetuates harm to targeted communities. family first increases funding for formal service provision instead of resources like safe housing, clothing, or food for needy families, contributing to the narrative that families are systeminvolved because they are unfit parents or have poor judgment. in reality, family regulation involvement is more likely explained by limited resources and the over-surveillance of low-income black and brown communities. the beneficial elements of prevention services, like housing subsidies and daycare vouchers, should be accessible to families who need them without a referral from the family regulation system and the surveillance that accompanies it. it is imperative that interventions designed to keep children out of foster care reflect the indisputable relationship between poverty and allegations of child maltreatment. despite numerous studies demonstrating that child maltreatment rates diminish when families receive increased cash assistance78 and access to safe, affordable housing,79 the family regulation system does not focus on reducing poverty or improving the economic conditions of impacted communities. we must make a significant financial investment in addressing child poverty over continued surveillance; prevention services should not only include home visits from social workers, monitoring, and clinical services. 77 roberts, shattered bonds, supra note 23, at 148. 78 kristen shook slack, child protective intervention in the context of welfare reform: the effects of work and welfare on maltreatment reports, 22 j. pol’y analysis & mgmt. 517 (2003). 79 saahoon hong & kristine n. piescher, the role of supportive housing in homeless children’s well-being: an investigation of child welfare and educational outcomes, 34 child. & youth serv. rev. 1440, 1440 (2012). 2021] surveillance tentacles 531 anti-poverty legislation and reform must become part of the family preservation agenda, and prevention services must extend beyond an agency whose purpose is to surveil and prosecute low-income communities. connecting families to public assistance and temporary housing is not sufficient when those services are inaccessible and do not adequately meet families’ needs. iii. looking forward: support, not surveillance we must reimagine the family regulation system to deliver material support to the low-income families it purportedly serves, without surveillance and prosecution. the family regulation system’s dependence on surveillance and mandated reporting as a solution to child maltreatment is a fallacy.80 families must have access to concrete supports and services without interacting with mandated reporters. however, any “hotline” or referral service must not be staffed by anyone connected to the family regulation system. interventions should be informed by parents and take into account the lived experiences of the families they serve, including the impact of ongoing surveillance and systemic racism.81 the damage being done to black and brown families will continue unchecked “within all aspects of the [family regulation system] as long as we remain complicit in upholding the accepted racist conditions experienced by those most disenfranchised in our society.”82 the family regulation system places a close watch on low-income black and brown families through the mobilization of mandated reporters, harming families and failing to produce positive outcomes for children. provision of services and material support for the families who need it should be divorced from the family regulation system. parents are experts on the needs of their families. they must be given the freedom to seek out 80 see melton, supra note 35, at 10 (arguing the assumptions that guided the mandated reporting laws were erroneous). 81 darcey h. merritt, lived experiences of racism among child welfare-involved parents, 13 race & soc. probs. 63, 70 (2021) (“future reforms to cws interventions should be informed by parent’s perceptions about the challenges related to ways in which racism and implicit bias appear in service delivery.”). 82 id. at 8. 532 colum. j. race & l. [vol. 11:501 necessary supportive services without fear of separation or of being subjected to a debilitating level of surveillance and control. until the family regulation system is dismantled, and its tentacles of surveillance amputated, black and brown families, especially those from low-income communities, will continue to be punished for their poverty. columbia journal of race and law vol. 11 april 2021 no. 2 article “we do not want to be hunted”: the right to be secure and our constitutional story of race and policing david h. gans* both supreme court doctrine and the scholarly literature on the constitutional constraints on policing generally begin and end with the fourth amendment, ignoring the fourteenth amendment!s transformative guarantees designed to curtail police abuses and safeguard liberty, personal security, and equality for all, regardless of race. this article corrects this omission by providing a comprehensive account of the text, history, and original meaning of the fourteenth amendment!s limitations on policing. it establishes how the fourteenth amendment revitalized the constitutional guarantee of the right to be secure from unreasonable searches and seizures, struck out at centuries of history that led black people to be subjected to indiscriminate searches and seizures, and sought to prohibit racialized policing practices. in these ways, the fourteenth amendment puts race at the center of our constitutional story of policing. the article demonstrates that addressing police abuse, including indiscriminate searches and seizures, arbitrary arrests, police violence and killing, is at * director of the human rights, civil rights & citizenship program, constitutional accountability center. for helpful comments and suggestions, i thank roy austin, chiraag bains, morgan cloud, josh blecher-cohen, kristen clarke, michael kent curtis, praveen fernandes, eric foner, brian frazelle, barry friedman, brianne gorod, rachel harmon, kristine kippins, tracey maclin, doug pennington, ajmel quereshi, and elizabeth wydra. thanks to rebecca damante and charles miller for cite-checking assistance. thanks to the editors of the columbia journal of race and law for excellent editorial assistance. 240 colum. j. race & l. [vol. 11:239 the core of the fourteenth amendment!s guarantees and history. our understanding of the constitutional law of policing"and the supreme court!s responses to police abuses"will remain inadequate unless we recover this history. 2021] we do not want to be hunted 241 i. introduction.............................................................................243 ii. the text and history of the fourth amendment ...............250 a. british abuses: the king!s unbridled power to search and seize..........................................................251 b. the drafting and ratification of the fourth amendment .....................................................256 c. the original meaning of the fourth amendment......258 iii. the fourteenth amendment, race, and policing..............262 a. the long road to the fourteenth amendment: slavery, search, and seizure......................................262 b. the text and history of the fourteenth amendment..................................................................268 1. the police abuses that led to the fourteenth amendment .......................................270 a. vagrancy laws ..................................................270 b. warrantless home invasions to disarm black americans................................................277 c. police killings and brutality ............................279 d. police failure to protect black people and white unionists from violence .................284 2. the fourteenth amendment!s limits on police abuse of power ......................................................286 iv. maintaining constitutional accountability........................293 v. the document v. the doctrine: the supreme court!s failure to honor our whole constitutional story of race and policing...............................................................296 a. the new police discretion: fourth amendment reasonableness and the rebirth of discretionary police power .................................................................297 1. terry v. ohio and the withering of the right to be secure in the streets ...................................298 2. the rules of the road: how the supreme court sanctioned discretionary and discriminatory policing on the nation!s roadways ......................311 3. special needs, school searches and seizures, and the school-to-prison pipeline ........................316 b. the erasure of equal protection..................................319 c. no remedies, no rights: the gutting of remedies for police abuse ...........................................................326 1. the invention of qualified immunity....................327 242 colum. j. race & l. [vol. 11:239 2. the hollowing out of the exclusionary rule........332 3. the barriers to injunctive relief against the police................................................................335 vi. conclusion & recommendations .........................................336 2021] we do not want to be hunted 243 i. introduction the killing of george floyd, a forty-six-year-old black man who was choked to death by minneapolis police officer derek chauvin on may 25, 2020, serves as a testament to the supreme court!s betrayal of our constitution!s text, history, and values. the constitutional law of policing is in shambles today because the supreme court has concentrated more and more power in the police. it has sanctioned discriminatory policing and racial profiling. it has allowed police violence to fester. it has gutted virtually every remedy available to hold the police accountable. and the problems go even deeper. the supreme court!s jurisprudence is rooted in an incomplete understanding of the relevant constitutional history. when the supreme court talks about the constitutional limits on policing, it begins and ends with the founding era. this erases a key part of our constitutional story of policing. police abuse, including indiscriminate searches and seizures, arbitrary arrests, police violence and killing, lies at the core of the fourteenth amendment!s history, a fact that has long been ignored by both the supreme court and most of the scholarly literature.1 our understanding of the constitutional law of policing"and the supreme court!s responses to police abuses"will remain inadequate unless we recover this history. this article corrects this omission. it details our whole constitutional story of race and policing, focusing on the fourteenth amendment!s transformative guarantees designed to curtail police abuses and safeguard liberty, personal security, and equality for all, regardless of race. it provides a 1 for notable exceptions, see akhil reed amar, the bill of rights: creation and reconstruction 267#68 (1998) [hereinafter amar, bill of rights]; andrew e. taslitz, reconstructing the fourth amendment: a history of search and seizure, 1789#1868, at 242#57 (2006); william j. stuntz, the collapse of american criminal justice 99#128 (2011) [hereinafter stuntz, american criminal justice]. but these authors tell only a part of the fourteenth amendment story. amar primarily focuses on the fourteenth amendment!s incorporation of the bill of rights, and only addresses policing in passing. taslitz tells more of the story, but he never really develops how police abuses shaped the fourteenth amendment!s original meaning. taslitz, supra, at 258 (looking to history “to ask new questions about the fourth amendment!s meaning or to see old questions in a new light”). stuntz focuses only on the constitutional guarantee of equal protection and does not delve into how the fourteenth amendment reshaped the meaning of the fourth amendment. 244 colum. j. race & l. [vol. 11:239 comprehensive account of the text, history, and original meaning of the fourteenth amendment!s limitations on policing. uncovering this history sheds new light on the meaning of the fourth and fourteenth amendments and offers a new perspective on the supreme court!s policing jurisprudence. the fourteenth amendment established new constitutional protections for personal security and equality, while building off what had come before. in order to understand the changes wrought by the fourteenth amendment, this article begins with the fourth amendment"the founding generation!s response to the abusive search and seizure practices they had experienced under british rule. the constitution!s framers included the fourth amendment in the bill of rights, refusing to permit the federal government to search and seize at will. the fourth amendment!s guarantee of “the right to be secure against unreasonable searches and seizures” established personal security as a core constitutional value.2 it introduced the idea that giving law enforcement excessive discretion to search and seize, in the words of james otis, “places the liberty of every man in the hands of every petty officer.”3 broad, discretionary powers to search and seize are at war with the right to be secure promised by the fourth amendment.4 the right to be secure from unreasonable searches and seizures meant that individuals could no longer be “searched and ransacked by the strong hand of 2 u.s. const. amend. iv. 3 the works of john adams app. a, at 524#25 (charles francis adams ed., 1850). 4 see, e.g., tracey maclin, the central meaning of the fourth amendment, 35 wm. & mary l. rev. 197, 201 (1993) [hereinafter maclin, central meaning] (“[t]he central meaning of the fourth amendment is distrust of police power and discretion.”); thomas y. davies, recovering the original fourth amendment, 98 mich. l. rev. 547, 582 (1999) (discussing framers! “deep-rooted distrust and even disdain for the judgment of ordinary officers”); m. blane michael, reading the fourth amendment: guidance from the mischief that gave it birth, 85 n.y.u. l. rev. 905, 921#22 (2010) (“the fourth amendment was . . . adopted for the purpose of checking discretionary police authority.”); laura k. donohue, the original fourth amendment, 83 u. chi. l. rev. 1181, 1194 (2016) (“the founders! primary concern was that the government not be allowed free rein to search for potential evidence of criminal wrongdoing.”). 2021] we do not want to be hunted 245 power” in the “most arbitrary manner, without any evidence or reason.”5 in most judicial and scholarly accounts of our constitutional law of policing, the story ends there. but our constitutional development did not. roughly eighty years after the adoption of our national charter, in the wake of a bloody civil war fought over slavery, the fourteenth amendment demanded that states respect fourth amendment rights,6 and ensure equal protection of the laws for all persons, vindicating the demands of those freed from enslavement that “now we are free[,] we do not want to be hunted,” we want to be “treated like human[] beings.”7 against the backdrop of mass arrests of black people under vagrancy laws, often for pretextual reasons, and police and mob violence directed against them, the fourteenth amendment sought to curb police abuses that were aimed at keeping black americans in a subordinate status. the framers of the fourteenth amendment understood that open-ended police power to search and seize offended not only liberty and personal security, but equality as well. in all these ways, criminal justice abuses lie at the very core of the fourteenth amendment!s protections. yet, this fourteenth amendment history has never been given its due. as a result of this erasure, key fourteenth amendment concerns"such as discriminatory and pretextual searches and seizures and police brutality"are effectively excluded from our constitutional story.8 these should be at the center of the story we tell, not relegated to the margins. and because this part of our constitutional story has long been ignored, the supreme court!s jurisprudence has suffered. 5 3 jonathan elliot, the debates in the several state conventions on the adoption of the federal constitution 588 (jonathan elliot ed., 1836) [hereinafter elliot!s debates]. 6 cong. globe, 39th cong., 1st sess., 2765 (1866) (observing that the fourteenth amendment protected all of “the personal rights guarantied [sic] and secured by the first eight amendments of the constitution”). 7 letter from mississippi freedpeople to the governor of mississippi (dec. 3, 1865), reprinted in freedom: a documentary history of emancipation, 1861#1867, ser. 3, vol. 1: land and labor, 1865, at 857 (steven hahn et al. eds., 2017). 8 cf. william j. stuntz, privacy!s problem and the law of criminal procedure, 93 mich. l. rev. 1016, 1020 (1995) [hereinafter stuntz, privacy!s problem] (arguing that the fourth amendment!s protection of privacy “tends to obscure more serious harms that attend police misconduct, harms that flow not from information disclosure but from the police use of force”). 246 colum. j. race & l. [vol. 11:239 by disregarding the fourteenth amendment and its history, the supreme court has allowed the police to treat people of color as second-class citizens, sanctioning racial targeting, racial profiling, and racial violence by law enforcement.9 as study after study has shown, men and women of color are “over-stopped, over-frisked, over-searched, and over-arrested.”10 they are also more likely to be beaten or killed by the police.11 as the police killings of george floyd, breonna taylor, walter scott, laquan mcdonald, philando castile, eric garner and many others attest, the deadly combination of racial profiling and racial police violence remains endemic.12 the court!s refusal to take the 9 see, e.g., tracey maclin, race and the fourth amendment, 51 vand. l. rev. 333 (1998) [hereinafter maclin, fourth amendment]; david a. sklansky, traffic stops, minority motorists, and the future of the fourth amendment, 1997 sup. ct. rev. 271 [hereinafter sklansky, traffic stops]; devon w. carbado & cheryl i. harris, undocumented criminal procedure, 58 ucla l. rev. 1543 (2011); devon w. carbado, from stop and frisk to shoot and kill: terry v. ohio!s pathway to police violence, 64 ucla l. rev. 1508 (2017) [hereinafter carbado, stop and frisk]; tracey maclin & maria savarese, martin luther king, jr. and pretext stops (and arrests): reflections on how far we have not come fifty years later, 49 u. mem. l. rev. 43 (2018). 10 ian ayres & jonathan borowsky, a study of racially disparate outcomes in the los angeles police department 27 (2008), https://www.aclusocal.org/sites/default/files/wp-content/uploads/2015/09/ 11837125-lapd-racial-profiling-report-aclu.pdf [https://perma.cc/8cprz45b]. see charles r. epp, et al., pulled over: how police stops define race and citizenship 26 (2014) (“police stop and search racial minorities at disproportionately high rates, and these disparities have grown wider in recent years . . . .”); james forman, jr., locking up our own: crime and punishment in black america 212#13 (2017) (observing that when the police “are carrying out investigatory or pretext stops, they are much more likely to stop [b]lack and other minority drivers: [black people] are about two and a half more times likely to be pulled over for pretext stops”); barack obama, the president!s role in advancing criminal justice reform, 130 harv. l. rev. 811, 820 (2017) (“a large body of research finds that, for similar offenses, members of the african american and hispanic communities are more likely to be stopped, searched, arrested, convicted, and sentenced to harsher penalties.”); bernard e. harcourt & tracey l. meares, randomization and the fourth amendment, 78 u. chi. l. rev. 809, 854#59 (2011) (reviewing data and studies from across the country that show that people of color are “overstopped, oversearched, and overfrisked in comparison to whites”). 11 jeffrey fagan & alexis d. campbell, race and reasonableness in police killings, 100 b.u. l. rev. 951, 961 (2020) (finding that “black suspects are more than twice as likely to be killed by police than are suspects from other racial or ethnic groups, including shootings where there are no obvious reasonable circumstances”). 12 devon w. carbado, from stopping black people to killing black people: the fourth amendment pathways to police violence, 105 calif. l. rev. 125, 129 (2017) [hereinafter carbado, from stopping to killing] (“every 2021] we do not want to be hunted 247 fourteenth amendment seriously has produced deeply flawed fourth and fourteenth amendment doctrines. modern fourth amendment doctrine turns a blind eye to race even as it systematically pervades policing. rather than reading the fourth amendment in light of the fourteenth amendment, the supreme court!s fourth amendment doctrine has repeatedly employed open-ended balancing tests to permit racialized policing practices to flourish. decades ago, anthony amsterdam predicted that “[i]f there are no fairly clear rules telling the policeman what he may and may not do, courts are seldom going to say that what he did was unreasonable.”13 that is exactly what has happened. in case after case, the court has insisted that the touchstone of the fourth amendment is reasonableness, not a warrant or probable cause. in this view, all the fourth amendment requires is ad hoc balancing of government and individual interests. this has made the fourth amendment into little more than a rational basis test"the most forgiving test in constitutional law"and has facilitated a massive expansion in discretionary police power to search and seize. in the hands of the modern supreme court, balancing of public and private interests almost always favors the police. the reasonableness test is supposed to consider all circumstances, but it refuses to consider race, a consequence of the erasure of the fourteenth amendment. the supreme court has also given a crabbed reading to fourteenth amendment!s equal protection clause, effectively erasing the equal protection guarantee as a constraint on policing. equal protection, in the policing context, no longer provides the protection it was supposed to. the framers of the fourteenth amendment wrote the equal protection guarantee with policing in mind, seeking to undo discriminatory state laws and policies that subjected newly freed black people to arbitrary arrests and harsh punishments"including re-enslavement" while turning a blind eye to violent offenses against them.14 the supreme court!s earliest equal protection rulings gave the encounter police officers have with african americans is a potential killing field.”). 13 anthony amsterdam, perspectives on the fourth amendment, 58 minn. l. rev. 349, 394 (1974). 14 see infra text accompanying notes 126#141 (discussing black codes passed in the wake of the civil war to deny black people their newly-won freedom). 248 colum. j. race & l. [vol. 11:239 greenlight to klan violence, writing out of the fourteenth amendment the states! constitutional obligation to protect individuals from private violence.15 recent decisions have only made things worse, erecting a stringent requirement of discriminatory purpose that makes it nearly impossible to redress discriminatory policing.16 this has enabled the police to target men and women of color for arbitrary invasions, while ignoring crimes committed against them.17 as rev. william barber has observed, today, as in the aftermath of the civil war, “[t]he [b]lack community gets cuts by both edges of the sword.”18 the court!s failure to take the fourteenth amendment!s text and history seriously has licensed both brutal and neglectful policing in communities of color.19 the turn to race-blind rational-basis style reasonableness review and the erasure of equal protection is only half the story. the supreme court has also been cutting back sharply on remedies for police misconduct across the board. in most cases, there are simply no remedies available to individuals aggrieved by unreasonable searches and seizures. the result, as leah litman has observed, is the “collapse of what is supposed to be an overarching and integrated system of remedies that is adequate to deter constitutional violations.”20 instead of a system of remedies, we have a system of police unaccountability. here, 15 stuntz, american criminal justice, supra note 1, at 101 (arguing that the court “read the equal protection clause in a manner that protected the klan from federal prosecutors rather than its victims from the klan”). 16 see infra text accompanying notes 370#390. 17 jill leovy, ghettoside: a true story of murder in america 7 (2015) (calling the “impunity for the murder of [b]lack men . . . america!s great, though mostly invisible, race problem”); wesley lowery, et al., an unequal justice, wash. post (july 25, 2018), https://www.washingtonpost.com/ graphics/2018/investigations/black-homicides-arrests/ [https://perma.cc/3qqylruy] (reporting that “black victims, who accounted for the majority of homicides, were the least likely . . . to have their killings result in an arrest”). 18 lowery, supra note 17. see also leovy, supra note 17; monica c. bell, police reform and the dismantling of legal estrangement, 126 yale l.j. 2054, 2057 (2017) (arguing that policing jurisprudence “simultaneously leaves large swathes of american society to see themselves as anomic, subject to the brute force of the state while excluded from its protection”). 19 bell, supra note 18, at 2057 (arguing that the “message conveyed in policing jurisprudence is not only one of oppression, but also one of profound estrangement”). 20 leah litman, remedial convergence and collapse, 106 calif. l. rev. 1477, 1528 (2018). 2021] we do not want to be hunted 249 too, the court!s blindness to fourteenth amendment history has produced grossly flawed doctrine. the increasing expansion of qualified immunity, a judgemade doctrine that requires a plaintiff to show that police officers violated clearly established law in order to sue for damages, exemplifies this dynamic. by creating an incredibly high threshold for finding the relevant law clearly established, the supreme court!s qualified immunity jurisprudence has made it practically impossible for individuals victimized by abuse of power to obtain an award of damages. rather than following the text and history of section 1983, the reconstruction-era federal law that provides a federal cause of action against state officers for violating federal constitutional rights, the court has rewritten the law to shield police officers from suit for all but the most egregious constitutional violations.21 this turns the fourteenth amendment on its head. in passing section 1983, congress wanted to vindicate fundamental rights, not immunize lawbreakers bent on stripping black americans of the freedom and personal security the fourteenth amendment promised. a proper understanding of fourteenth amendment history complements the burgeoning literature that demonstrates why the supreme court should eliminate qualified immunity.22 this article proceeds as follows. parts ii through iv lay out our whole constitutional story of policing. part ii examines the text and history of the fourth amendment, showing that the constitution!s framers established a constitutional right to be secure from unreasonable searches and seizures in order to check excessive discretion in law enforcement. part iii examines the constitutional transformation that culminated in the fourteenth amendment, detailing the police abuses at the core of fourteenth amendment!s text and history and explaining the original meaning of the amendment!s limit on abuse of power. turning 21 see ziglar v. abbasi, 137 s. ct. 1843, 1872 (2017) (thomas, j., concurring) (urging reconsideration of the court!s qualified immunity precedents because they “substitute our own policy preferences for the mandates of congress”); baxter v. bracey, 140 s. ct. 1862, 1864 (2020) (thomas, j., dissenting from denial of certiorari) (arguing that there is “likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe”). 22 see, e.g., william baude, is qualified immunity unlawful?, 106 calif.. l. rev. 45 (2018); joanna c. schwartz, the case against qualified immunity, 93 notre dame l. rev. 1797 (2018). 250 colum. j. race & l. [vol. 11:239 from rights to remedies, part iv demonstrates that the framers of the fourth and fourteenth amendments viewed civil remedies as essential to safeguard constitutional rights. part v examines the court!s caselaw regarding the fourth amendment, fourteenth amendment, and corresponding remedies and shows how the court!s erasure of the fourteenth amendment from the constitutional story of policing has led to a host of flawed constitutional doctrinal rules. a short conclusion briefly sketches how the court might revitalize the fourteenth amendment!s transformative guarantees. ii. the text and history of the fourth amendment the fourth amendment provides: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.23 the fourth amendment made three central innovations to check arbitrary invasions by law enforcement. first, it guaranteed to the people a right “to be secure” from unreasonable searches and seizures, language understood to deny the government excessive discretion to search and seize.24 second, it outlawed general warrants"namely"open-ended warrants that did not specify their targets, the reasons for suspicion, or what was to be searched and seized. third, it required specific warrants supported by probable cause in order to prevent the federal government from engaging in indiscriminate searches and seizures. 23 u.s. const. amend iv. 24 barry friedman, unwarranted: policing without permission 23#24 (2017) [hereinafter friedman, unwarranted]; thomas k. clancy, what does the fourth amendment protect: property, privacy, or security?, 33 wake forest l. rev. 307, 344#66(1998); jed rubenfeld, the end of privacy, 61 stan. l. rev. 101, 115#31 (2008); luke m. milligan, the forgotten right to be secure, 65 hastings l.j. 713, 732#50 (2014). 2021] we do not want to be hunted 251 a. british abuses: the king!s unbridled power to search and seize the framers of the fourth amendment knew from experience that giving law enforcement sweeping grants of power to search and seize was incompatible with liberty. in the late seventeenth and eighteenth centuries, british law permitted royal authorities to invade the homes of colonists and seize their property as they saw fit. general warrants and sweeping powers of search and seizure were common features of colonial laws.25 searches and seizures by british customs officers were particularly repugnant to the colonists. the act of frauds of 1662, which was applied to the colonies in 1696, authorized british officers to “enter, and go into any house, shop, cellar, warehouse or room or other place,” and “to break open doors, chests, trunks and other package[s],” in order to seize any “prohibited and uncustomed” goods.26 british law also gave customs officers, in the commissions they received from their superiors, authority to search all houses and other buildings without any warrant.27 the act of frauds also authorized writs of assistance, a particularly pernicious tool that allowed royal authorities to search and seize as they saw fit. such writs gave customs officers an extraordinary power: they could commandeer anyone to assist in searching and seizing.28 once issued, a writ of assistance was 25 william j. cuddihy, the fourth amendment: origins and original meaning 602#1791, at 192#93 (2009); tracey maclin, the complexity of the fourth amendment: a historical review, 77 b.u. l. rev. 925, 939 (1997) (explaining that “[p]rior to 1760, general, promiscuous intrusion by government officials provided the standard method of search and seizure in colonial america”). 26 see act of frauds of 1662, 12 car. 2, cl. 11, § v(2), reprinted in 8 danby pickering, the statutes at large of england and great-britain 78, 81 (1763); act of frauds of 1696, 5 w. & m. c. 22, § vi, reprinted in 9 danby pickering, the statutes at large of england and great-britain 428, 430 (1764). 27 3 thomas hutchinson, the history of the province of massachusetts bay 92 (1828) (“the collectors and inferior officers of the customs, merely by the authority derived from their commissions, had forcibly entered warehouses, and even dwelling houses, upon information that contraband goods were concealed in them.”); m.h. smith, the writs of assistance case 116#18 (1978). 28 donohue, supra note 4, at 1242. 252 colum. j. race & l. [vol. 11:239 a virtual blank check, in effect for the lifetime of the reigning king or queen.29 matters came to a head in the middle of the eighteenth century, when king george ii, facing a war with france, sought to strengthen customs enforcement. throughout the 1750s, customs officers had obtained writs of assistance from colonial courts. in 1760, king george ii died, requiring customs officials to obtain new writs. this set the stage for paxton!s case, in which james otis, who represented a group of boston merchants and citizens, delivered his famous condemnation of writs of assistance. otis!s arguments did not succeed, but they exerted a powerful influence on the framers of the fourth amendment.30 indeed, the core of the fourth amendment"the right to be secure, the need for limits on excessive discretion to search and seize, and the specific warrant as a check on government overreaching"can all be traced to otis. otis railed against the idea that the british could invade the colonists! security as they saw fit. he denounced the writ of assistance as “the worst instrument of arbitrary power,” explaining that sanctioning indiscriminate searches and seizures “places the liberty of every man in the hands of every petty officer.”31 otis charged that “every hous[e]holder in this province, will necessarily become less secure than he was before this writ had any existence among us”32 because british officers could break into houses “when they please,” and “whether they break through malice or revenge, no man, no court, can inquire.”33 otis not only attacked indiscriminate government search and seizure, he also insisted that a search warrant was only permissible on the basis of specific evidence of wrongdoing. searches of the home should be permitted only “in cases of the most urgent necessity and importance; and this necessity and 29 smith, supra note 27, at 130. 30 id. at 7 (arguing that otis!s argument represented the first “articulate expression” of “the american tradition of hostility to general powers of search”). 31 the works of john adams, supra note 3, app. a, at 523, 524 (abstract of otis!s argument written by adams). 32 josiah quincy, junior, reports of cases argued and adjudged in the superior court of judicature of the province of massachusetts bay, between 1761 and 1772, at 489 (1865) (1762 article in boston gazette attributed to otis). 33 the works of john adams, supra note 3, at 494. 2021] we do not want to be hunted 253 importance always is, and always ought to be determin!d by adequate and proper judges.”34 this, otis insisted, required a particularized search warrant, permitting the government to “search certain houses” based on concrete suspicion concerning “those very places he desires to search.”35 while otis did not succeed in preventing new writs of assistance from being issued, english courts vindicated his arguments in a series of famous suits arising out of the king!s use of general warrants to silence john wilkes and other political enemies of king george iii. these cases, which recognized that open-ended warrants threatened fundamental protections for liberty, loomed large for the framers of the fourth amendment.36 these landmark british rulings grew out of the publication of the north briton no. 45, an anonymous pamphlet critical of king george iii published by john wilkes. three days after its publication, lord halifax, the king!s secretary of state, issued a general warrant directing the king!s messengers to search for the author and publisher of the pamphlet, to apprehend them, and seize their papers.37 that same year, in a similar case, lord halifax issued a broadly-worded warrant to search and seize the books and papers of john entick, the publisher of the monitor, another pamphlet that the king considered seditious.38 in a series of landmark opinions, english courts repeatedly denounced these warrants, emphasizing two key points. first, they noted the evil of permitting unchecked discretion to search and seize. the courts declared that general warrants were “illegal and void” because “[i]t is not fit that the receiving and judging should be left to the discretion of the officer. the magistrate ought to judge; and should give certain directions to the officer.”39 the basic idea was that law 34 quincy, supra note 32, app. i, at 490. 35 the works of john adams, supra note 3, app. a, at 524. 36 see, e.g., wilkes v. wood, 19 how. st. tr. 1153 (c.p. 1763); huckle v. money, 95 eng. rep. 768 (k.b. 1763); entick v. carrington, 19 how. st. tr. 1029 (c.p. 1765); leach v. money, 19 how. st. tr. 1001 (k.b. 1765). 37 donohue, supra note 4, at 1201. 38 cuddihy, supra note 25, at 451. 39 leach, 19 how. st. tr. at 1027. 254 colum. j. race & l. [vol. 11:239 enforcement should not have excessive discretion to search or seize. second, the courts stressed that the unchecked power claimed by the king!s officers infringed on basic principles of liberty and personal security in a manner deeply “subversive of all the comforts of society.”40 giving law enforcement a “discretionary power . . . to search wherever their suspicions may chance to fall,” the courts declared, “may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.”41 if such indiscriminate searches and seizures were permissible, every englishman could find that “[h]is house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper.”42 giving the government sweeping powers to search and seize where they wished threatened the individual!s right to be secure in their person, papers, and home. in the colonies, newspaper coverage of these cases was widespread, providing daily reminders that permitting the government indiscriminate powers to search and seize was intolerable.43 but rather than respect the fundamental principles vindicated by wilkes, the british government intensified its efforts to search and seize americans. in 1767, parliament enacted the townshend revenue act, which was designed to make it easier to obtain writs of assistance in the colonies.44 following the passage of the act, colonial judges rebelled against the writs of assistance, refusing to give such open-ended authority to search and seize.45 40 id. at 1066. 41 wilkes, 19 how. st. tr. at 498. 42 entick v. carrington, 19 how. st. tr. 1029, 1064 (c.p. 1765) 43 cuddihy, supra note 25, at 538; davies, supra note 4, at 563. 44 cuddihy, supra note 25, at 503#08. 45 id. at 518 (“in the period 1769#1772, no colonial court beyond new hampshire or massachusetts granted the general writ that the customs authorities wanted, and most included constitutional or legal exegeses in their grounds of refusal.”); o.m. dickerson, writs of assistance as a cause of the revolution, in the era of the american revolution 74 (richard b. morris ed., 1939) (noting that “the judiciary from connecticut to florida . . . stood firm in opposing the legality of the particular form of writ demanded of them and continued in their judicial obstinacy through six years of nearly constant efforts to force them to yield”). 2021] we do not want to be hunted 255 throughout the colonies, courts insisted that they would not grant customs officers the power to engage in indiscriminate searches and seizures. as one court declared, “arming officers of the customs with so extensive a power to be exercised, totally at their own discretion would be of dangerous consequences and was not warranted by law.”46 courts across the country refused “to issue general writs . . . to be lodged in the hands and to be used discretionally (perhaps without proper foundation) at the will of subordinate officers, to the injury of the rights of his majesty!s other loyal subjects.”47 this experience demonstrated that courts could provide a valuable check on indiscriminate searches and seizures. hostility to indiscriminate powers of search and seizure spread like wildfire in the years before the american revolution. americans loudly pronounced their opposition to abusive search and seizure practices that gave the british free reign to search and seize.48 arthur lee, writing as junius americanus, charged that writs of assistance left the colonists “laid open to something worse than a general warrant, namely, to the will and pleasure of every officer and servant in the customs.”49 william drayton stressed that writs of assistance were pernicious invasions on personal security"even “without any crime charged and without any suspicion, a petty officer has power to cause the doors and locks of any man to be broke open, to enter his most private cabinet; and thence to take and carry away, whatever he shall in his pleasure deem uncustomed goods.”50 colonists also objected to the fact that the commissioners of customs were authorized by their commissions to search and 46 dickerson, supra note 45, at 60#61 (quoting letter of customs officers at philadelphia to the custom commissioners (july 3, 1773) (treasury i, bundle 501)). 47 id. at 63, 64 (internal citation omitted). 48 cuddihy, supra note 25, at 541 (discussing opposition to british search and seizure practices from “town meetings, the continental congress, quasi-governmental agencies, pamphleteers, essayists, and the man-on-thestreet”). 49 letter from junius americanus to the people of england (mar. 13, 1770), in arthur lee, the political detection: or the treachery and tyranny of administration, both at home and abroad 99 (1770). 50 william henry drayton, a letter from freeman of south carolina, to the deputies of north america 10 (1774). 256 colum. j. race & l. [vol. 11:239 seize without a warrant. at a 1772 boston town meeting, which was attended by james otis, samuel adams, and others, colonists insisted that “[t]hese officers are by their commissions invested with powers altogether unconstitutional, and entirely destructive to that security which we have a right to enjoy; and to the last degree dangerous, not only to our property, but to our lives.”51 those at the meeting argued that these commissions vested a “power more absolute and arbitrary than ought to be lodged in the hands of any man or body of men whatsoever.”52 as a result, the attendees concluded: our houses, and even our bed-chambers, are exposed to be ransacked, our boxes, trunks and chests broke open, ravaged and plundered by wretches . . . whenever they are pleased to say they suspect there are in the house, wares, [etc.] for which the duties have not been paid . . . . by this we are cut off from that domestic security which renders the lives of the most unhappy in some measure agreeable.53 in 1774, the continental congress included in its list of grievances that “[t]he commissioners of the customs are [e]mpowered to break open and enter houses without the authority of any civil magistrate founded on legal information.”54 the colonists firmly opposed indiscriminate searches and seizures, whether authorized by a warrant or not. b. the drafting and ratification of the fourth amendment many of the revolutionary-era state constitutions limited search and seizure by the government. some banned general warrants; others, like the massachusetts constitution of 1780, were broader, recognizing that “[e]very subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions.”55 the failure of the proposed federal constitution to provide any 51 town of boston, the votes and proceedings of the freeholders and other inhabitants of the town of boston, in town meeting assembled, according to law 15 (1772). 52 id. 53 id. at 16#17. 54 1 journals of the continental congress, 1774#1789, at 96#97 (worthington c. ford et al. eds., 1904). 55 mass. const. art. 14 (1780). 2021] we do not want to be hunted 257 protection for personal security produced a groundswell of criticism. in pennsylvania, samuel bryan, writing as centinel, observed that “[y]our present frame of government, secures to you a right to hold yourselves, houses, papers and possessions free from search and seizure,” and asked “[h]ow long those rights will appertain to you, . . . whether your houses shall continue to be your castles; whether your papers, your persons, and your property, are to be held sacred and free from general warrants.”56 a maryland antifederalist, writing as “a farmer and planter,” objected that “excise-officers have power to enter your houses at all times, by night or day, and if you refuse them entrance, they can, under pretence of searching for exciseable goods, . . . break open your doors, chests, trunks, desks, [and] boxes, and rummage your houses from bottom to top.” 57 he pointedly asked whether “congress excise-officers will be any better.”58 in the virginia ratifying convention, patrick henry warned that, under the constitution, “any man may be seized, any property may be taken, in the most arbitrary manner, without evidence or reason. every thing the most sacred may be searched and ransacked by the strong hand of power.”59 henry feared that “[e]xcisemen . . . may, unless the general government be restrained by a bill of rights, . . . go into your cellars and rooms, and search, ransack and measure, everything you eat, drink, and wear. they ought to be restrained within proper bounds.”60 the virginia convention recommended adding to the constitution a right to be secure from unreasonable searches and seizures.61 the push for a constitutional guarantee of security succeeded. on june 8, 1789, james madison introduced the bill of rights, including a guarantee that “the rights of the people to be secured in their persons” from “all unreasonable searches and 56 letters of centinel (1) (oct. 5, 1787), reprinted in the essential federalist and anti-federalist papers 65#66 (david wootton ed., 2003). see pa. const. of 1776, art. x. 57 essay by a farmer and planter, md. j., apr. 1, 1788, reprinted in 5 the complete anti-federalist 74#75 (herbert j. storing ed., 1981). 58 id. at 76. 59 3 elliot!s debates, supra note 5, at 588. 60 id. at 448#49. 61 id. at 657#58; 2 id. at 551 (proposal made by the maryland ratifying convention for a “constitutional check” on government searches and seizures). 258 colum. j. race & l. [vol. 11:239 seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.”62 madison!s draft recognized a right to be secure from unreasonable searches and seizures, using language similar to the massachusetts constitution of 1780, but only prohibited violations of the right that were caused by general warrants. ultimately, the first congress broadened the amendment!s scope. the framers made the two core concepts in madison!s draft into two independent guarantees: the first safeguarding a right to be secure against unreasonable search and seizures; and the second requiring all warrants to be specific, demanding both probable cause and particularity. unlike madison!s draft, the fourth amendment proscribes all unreasonable searches and seizures. c. the original meaning of the fourth amendment the opening words of the fourth amendment safeguard the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”63 the amendment then provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”64 the original meaning of the text provides three important lessons and clarifies how its two clauses fit together. first, the text guarantees a broad right of personal security. while the driving impetus for inclusion of the amendment was the fear that the federal government might reinstitute general warrants, the amendment sweeps broadly. it constrains all searches or seizures, reflecting that british abuses included not only general warrants and writs of assistance, but also warrantless searches occurring “without the authority of any civil magistrate founded on legal information.”65 indeed, 62 1 annals of cong. 452 (1789) (joseph gale ed., 1834). 63 u.s. const. amend iv. 64 id. 65 1 journals of the continental congress, 1774 to 1789, supra note 54, at 97; amsterdam, supra note 13, at 411 (observing that “even when there is sufficient cause to intrude upon an individual by a search, the framers 2021] we do not want to be hunted 259 antifederalists had insisted that a constitutional check on all government searches and seizures was necessary to protect personal security.66 rather than simply outlaw general warrants, the fourth amendment established a right to be secure from all unreasonable searches and seizures.67 the original meaning of the fourth amendment forbids general searches.68 a statute that allowed the federal government the power to search and seize at will was no more permissible than a general warrant that permitted such arbitrary invasions.69 as george thomas observes, it would have made “little sense to bar searches conducted under general warrants and then to permit general searches to be made without warrants.”70 second, and relatedly, the fourth amendment denies the federal government the power to give law enforcement officials the discretion to search and seize whomever they wish.71 the framers wrote the right to be secure from unreasonable searches and seizures into the fourth amendment precisely because they feared giving the federal government excessive discretion to search and seize. as david gray argues, “eighteenth-century decreed that it was unreasonable and should be unconstitutional to subject his premises or possessions to indiscriminate seizure”). 66 cuddihy, supra note 25, at 690 (“[r]atifying conventions and pamphleteers increasingly spoke in the plural, of unreasonable searches and seizures. general excise searches and search warrants issued groundlessly were condemned almost as much as the general warrant.”). 67 id. at 691 (arguing that the fourth amendment “transcended the mere denunciation of general warrants that their state constitutions provided”). 68 id. at 742 (arguing that the amendment “extinguish[ed] general searches categorically”); donohue, supra note 4, at 1193 (observing that the “proper way to understand the fourth amendment is as a prohibition on general search and seizure authorities” and that the “first clause outlaws promiscuous search and seizure”); george c. thomas iii, time travel, hovercrafts, and the framers: james madison sees the future and rewrites the fourth amendment, 80 notre dame l. rev. 1451, 1467 (2005) (“$[u]nreasonable searches and seizures! included any type of general search, whether by warrant or not.”). 69 amsterdam, supra note 13, at 411; morgan cloud, searching through history; searching for history, 63 u. chi. l. rev. 1707, 1729 (1996) [hereinafter cloud, searching] (reviewing cuddihy, supra note 25, at 376); yale kamisar, does (did) (should) the exclusionary rule rest on a #principled basis$ rather than an #empirical basis$, 16 creighton l. rev. 565, 575 (1983). 70 thomas, supra note 68, at 1466. 71 rubenfeld, supra note 24, at 125 (“[t]he core meaning of the fourth amendment!s right of security is to deny government the power to effect generalized arrests or searches of homes without probable cause.”). 260 colum. j. race & l. [vol. 11:239 readers would have regarded grants of broad and unfettered discretion as hallmarks of unreasonable searches and seizures.”72 such discretionary grants of power permit officials to rummage through an individual!s belongings without good reason and open the door to arbitrary enforcement, allowing the government to target disfavored persons.73 as one early court reasoned, such sweeping authority “would open a door for the gratification of the most malign passions.”74 personal security would be a nullity if the government could, at will, break into homes, arrest residents, and ransack their possessions. the framers thought it “better that the guilty should sometimes escape, than that every individual should be subject to vexation and oppression.”75 third, most searches required specific warrants.76 in contrast to the general warrants the framers abhorred, the fourth amendment required a specific warrant that was based on probable cause to believe a crime had been committed and that recited the place to be searched and the things to be seized. this transformation"which was at the heart of otis!s arguments against the writs of assistance"is fundamental to understanding the fourth amendment.77 specific warrants were 72 david gray, the fourth amendment in an age of surveillance 162 (2017); thomas k. clancy, the role of individualized suspicion in assessing the reasonableness of searches and seizures, 25 u. mem. l. rev. 483, 632#33 (1995) (“[p]articularly described persons, places, or things, based on individualized suspicion were considered inherent characteristics of reasonable searches and seizures by the framers. individualized suspicion was considered an element of reasonableness.”). 73 amsterdam, supra note 13, at 411 (observing that “indiscriminate searches or seizures . . . expose people and their possessions to interferences by government when there is no good reason to do so,” and “are conducted at the discretion of executive officials, who may act despotically and capriciously in the exercise of the power to search and seize”). 74 grummon v. raymond, 1 conn. 40, 44 (1814). 75 conner v. commonwealth, 3 binn. 38, 44 (pa. 1810). 76 while the common law permitted some warrantless arrests, such as arrests pursuant to hue and cry, a common law form of hot pursuit, as well as warrantless searches incident to arrests, warrants were “the salient mode of arrest and search authority.” davies, supra note 4, at 641. see id. at 627#34; thomas, supra note 68, at 1467#72, 77 friedman, unwarranted, supra note 24, at 134#37; cloud, searching, supra note 69, at 1730##31; donohue, supra note 4, at 1193. in a provocative article, akhil amar argues that the fourth amendment does not require warrants or probable cause, but simply requires that searches be reasonable"a question amar would leave to juries. akhil reed amar, fourth amendment first principles, 107 harv. l. rev. 757 (1994) [amar, first principles]. amar!s argument turns the fourth amendment on its head, ignores 2021] we do not want to be hunted 261 constitutionally reasonable. allowing the government broad discretionary powers to search and seize was not. this ensured the judicial check on search and seizure the framers demanded.78 the basic idea behind the fourth amendment!s insistence on a specific warrant as a check on law enforcement abuse of power was spelled out by james madison in his famous 1800 report on the virginia resolutions. madison wrote that “[i]n the administration of preventive justice,” it was a “sacred” rule that “some probable ground of suspicion be exhibited before some judicial authority” and “that it be supported by oath or affirmation.”79 as madison explained, the “ground of suspicion” had to be “judged” by “judicial authority” and could not be left to the “executive magistrate alone.”80 in short, judges had a responsibility to ensure compliance with the fourth amendment in order to rein in abuses. by requiring the government to provide reasons before conducting searches and seizures, the fourth amendment ensures that the judiciary has the opportunity to determine whether the police have probable cause for intruding on an individual!s security before they do so. st. george tucker, a well-known and respected virginia lawyer, drew on madison!s argument in his discussion of the meaning of the fourth amendment in the 1803 edition of blackstone!s commentaries.81 tucker!s lecture notes of the 1790s were clear regarding the meaning of the right to be secure against unreasonable searches and seizures: what shall be deemed unreasonable searches and seizures[?] the same article informs us, by declaring, that no warrant shall issue, but first the judicial check the specific warrant serves, and would reintroduce the kinds of excessive discretion the framers sought to eliminate. for critiques, see, for example, maclin, central meaning, supra note 4; donohue, supra note 4; and cloud, searching, supra note 69. 78 gray, supra note 72, at 162#63 (arguing the “general warrants were regarded as unreasonable . . . because they forgave any obligation to justify a search or seizure before the fact through a process of reason-giving before a neutral arbiter”). 79 4 elliot!s debates, supra note 5, at 555. 80 id. 81 1 st. george tucker, blackstone!s commentaries with notes of reference to the constitution and laws of the federal government of the united states and the commonwealth of virginia, app. at 302 (1803). 262 colum. j. race & l. [vol. 11:239 upon probable cause"which cause secondly, must be supplied by oath or affirmation; thirdly the warrant must particularly describe[] the place to be searched; and fourthly"the persons, or things to be seized. all other searches and seizures, except such as are thus authorized, are therefore unreasonable and unconstitutional.82 while tucker accepted that some arrests did not require a warrant, he viewed warrantless searches as presumptively unreasonable.83 madison and tucker were not alone. in an 1829 treatise, william rawle wrote that “[t]he term unreasonable” in the fourth amendment “is used to indicate that the sanction of a legal warrant is to be obtained, before such searches or seizures are made.”84 iii. the fourteenth amendment, race, and policing the fourth amendment represented the culmination of a long struggle to guarantee personal security and eliminate excessive discretion in law enforcement. but, it did not ensure personal security and true freedom for all without regard to race. the fourteenth amendment, which puts race at the center of our constitutional story of policing, was necessary to make the constitution!s promise of personal security a reality for all. a. the long road to the fourteenth amendment: slavery, search, and seizure the fourth amendment!s promise of the right to be secure from unreasonable searches and seizures proved illusory for black americans in the new nation. whether they were free or enslaved, whether they lived in the north or the south, black people were subjected to indiscriminate searches and seizures. racialized search and seizure practices left black americans without any security. slave patrols that had essentially unfettered power to search and seize"and to terrorize black people"were a basic 82 david t. hardy, the lecture notes of st. george tucker: a framing era view of the bill of rights, 103 nw. u. l. rev. colloquy 272, 280 (2008) (quoting from tucker!s lecture notes dating from approximately 1791#1792). 83 id. 84 william rawle, a view of the constitution 127 (2d ed. 1829). 2021] we do not want to be hunted 263 feature of slavery that predated the constitution and continued long after its ratification.85 as sally hadden describes, “[p]atrols rummaged through slave dwellings,” broke up “slave gatherings of any kind,” and “questioned and detained slaves who were away from their plantation” to examine whether they had a valid pass allowing them to do so.86 armed with guns, whips, and ropes, the patrols often savagely whipped and brutalized enslaved people.87 as one formerly enslaved person remembered, patrollers would “keep close watch” so that we “have no chance to do anything or go anywhere. they $jes like policemen, only worser . . . . if you wasn!t in your proper place when the paddyrollers come they lash you til! you was black and blue.”88 enslaved women were constantly threatened by rape and other forms of sexual abuse.89 slave patrols were not confined to the countryside. patrols operated in cities, where slaveowners insisted on an even “more energetic and scrutinizing system” to keep black people subordinate.90 so did police forces, who regularly arrested black people who did not have their papers, could not prove they were free, or were simply “out of place.”91 laws subjected black americans to arrest simply for being black. throughout the south, state legislatures enacted “negro seamen” laws that provided that any free black person who arrived on board a ship would be detained and imprisoned until the ship departed. if the ship!s captain refused to pay the 85 cuddihy, supra note 25, at 218 (noting that “south carolina created the first slave patrol in 1704, followed by virginia in 1726 and 1738, north carolina in 1753, and georgia in 1757”); maclin, fourth amendment, supra note 9, at 334#36 (detailing colonial enactments). 86 sally e. hadden, slave patrols: law and violence in virginia and the carolinas 106, 108#09 (2001); peter h. wood, black majority: negroes in colonial south carolina from 1670 through the stono rebellion 275 (1974) (discussing a 1734 law that permitted slave patrol to “question or search any travelling negro,” “administer up to twenty lashes to any slave stopped outside his plantation without a ticket,” and “to search the homes of negroes arbitrarily and to confiscate firearms or other weapons and any goods suspected of being stolen”). 87 hadden, supra note 86, at 106, 108, 117. 88 id. at 71. 89 id. at 117. 90 richard c. wade, slavery in the cities, the south 1820#1860, at 80 (1964); hadden, supra note 86, at 51#61. 91 wade, supra note 90, at 104, 219. 264 colum. j. race & l. [vol. 11:239 costs of confinement, the seaman could be sold into slavery.92 these seamen laws led to an infamous incident, the memories of which were still fresh during the drafting of the fourteenth amendment. in 1844, the massachusetts legislature sent two delegates to south carolina to gather information about the detention of black citizens of massachusetts.93 when samuel hoar, one of the delegates, arrived in charleston, the legislature expelled him from the state. hoar barely escaped lynching at the hands of an angry mob.94 this incident provoked outrage in the north and demonstrated the lengths to which slave states would go to violate fundamental rights. it showed that anyone who questioned the authority of slave states to arrest, imprison, and sell black people into slavery would be treated as a pariah.95 in the south, pamphlets and other writings that contained anti-slavery speech, including mainstream northern newspapers, were subject to seizure and even burning.96 for example, an 1836 virginia law required the postmaster to notify the justice of the peace if abolitionist material appeared in the mail and required the justice of the peace to burn any book or other abolitionist writing.97 southern courts issued general warrants permitting sweeping searches of books.98 although the bill of rights did not apply to acts of state governments, laws 92 see randall kennedy, race, crime, and the law 81 (1997); bruce e. boyden, constitutional safety valve: the privileges or immunities clause and status regimes in a federalist system, 62 ala. l. rev. 111, 140#44 (2010). 93 boyden, supra note 92, at 142. 94 amar, bill of rights, supra note 1, at 236 (describing how hoar was “ridden out of town on a rail by an enraged populace after the south carolina legislature passed an act of attainder and banishment”). 95 taslitz, supra note 1, at 246 (arguing that hoar!s expulsion is “best understood as fusing concerns about search and seizure, free speech, and judicial access”). 96 amar, bill of rights, supra note 1, at 235, 267; michael kent curtis, the 1859 crisis over hinton helper!s book, the impending crisis: free speech, slavery, and some light on the meaning of the first section of the fourteenth amendment, 68 chi.-kent l. rev. 1113, 1130#38, 1158#62 (1993) [hereinafter curtis, the 1859 crisis]. bills requiring seizure of abolitionist materials failed to pass congress, but pro-slavery executive interpretation gave the post office leeway to refuse to distribute abolitionist materials that violated state law. see michael kent curtis, free speech, “the people!s darling privilege”: struggles for freedom of expression in american history 155#75 (2000). 97 curtis, the 1859 crisis, supra note 96, at 1133#34. 98 id. at 1162. 2021] we do not want to be hunted 265 such as these produced widespread fears that the “slave power”99 was threatening american democracy and freedom. as michigan congressman henry waldron observed, “postmasters rifle mails and violate the sanctity of private correspondence,” and “[t]he newspaper which refuses to recount the blessings and sing the praises of slavery is committed to the flames.”100 search and seizure was used to squelch dissent, recalling to mind british abuses that sought to silence king george iii!s political opposition. throughout the country, the fugitive slave act exposed black americans to a virulent form of racial profiling and licensed widespread seizures and kidnapping. the act"first passed in 1793 and overhauled in 1850"delegated sweeping powers to white people to stop, question, search, and seize possible fugitives on the basis of open-ended, racial descriptions.101 abolitionists repeatedly attacked the constitutionality of the fugitive slave act on fourth amendment grounds, but to no avail.102 in a series of cases, the supreme court upheld the act and ignored fourth amendment objections to it.103 the court sanctioned indiscriminate seizures, and even 99 garrett epps, interpreting the fourteenth amendment: two don!ts and three dos, 16 wm. & mary bill rts. j. 433, 451 (2007) (explaining that the “slave power was a term” that “referred to a combination of southern ruthlessness and constitutional flaws that had given the slave states effective control of the federal machine, both as an engine of domestic policy and as a dominant influence on matters of diplomacy, war, and peace”). 100 cong. globe, 36th cong., 1st sess. 1872 (1860). 101 morgan cloud, quakers, slaves and the founders: profiling to save the union, 73 miss. l.j. 369, 371, 391#92 (2003) [hereinafter cloud, quakers] (noting that “[a]ll negro men, women and children were potential suspects and potential victims of seizures by slave hunters” and describing “advertisement after advertisement containing descriptions that would permit slave catchers extraordinary discretion in their seizures of alleged runaways”); vanessa holden & edward e. baptist, opinion, policing black americans is a long-standing, and ugly american tradition, wash. post (mar. 6, 2019, 1:21 pm), https://www.washingtonpost.com/opinions/2019/03/06/policing-blackamericans-is-long-standing-ugly-american-tradition/ [https://perma.cc/44s2ejqf] (“law and practice empowered white people to act as the police when it came to [b]lack people, including stopping, questioning and searching possible fugitives, which could mean any [b]lack person who vaguely fit the description.”). 102 taslitz, supra note 1, at 164#68. 103 prigg v. pennsylvania, 41 u.s. (16 pet.) 539 (1842); jones v. van zandt, 46 u.s. (5 how.) 215 (1847). 266 colum. j. race & l. [vol. 11:239 kidnapping, of black people without even addressing the fourth amendment arguments levelled against the act. emboldened by these decisions, southerners pushed through congress a tougher fugitive slave act, which eric foner has called “the most robust expansion of federal authority over the states, and over individual americans, of the antebellum era.”104 the 1850 act permitted seizures without a warrant,105 authorized the use of summary procedures to return people to slavery, including proof by affidavit, and created a financial incentive for federal commissioners to accept claims made by slave owners.106 if the commissioner found the individual in question should be returned to slavery, he was paid ten dollars, but if he determined that the individual should remain free, he only received five dollars"effectively a bribe to induce commissioners to rule on behalf of slaveholders.107 the act commanded individuals to assist in sending people to slavery, dragooning people in a manner reminiscent of the despised writs of assistance of the revolutionary era.108 in all these ways, as historian r.j.m. blackett writes, “the law would give a free hand to kidnappers.”109 black americans in the north"like never before"lived in fear of being seized, kidnapped, and forced into slavery. the act, frederick douglass thundered, made the 104 eric foner, gateway to freedom: the hidden history of the underground railroad 125 (2015). 105 cloud, quakers, supra note 101, at 414 (explaining that “no warrant was necessary in most cases”). 106 r.j.m. blackett, the captive!s quest for freedom: fugitive slaves, the 1850 fugitive slave law, and the politics of slavery 7#13 (2018); james m. mcpherson, battle cry of freedom: the civil war era 80 (1988). 107 see cong. globe, 32d cong., 1st sess. 1107 (1852) (“adding meanness to the violation of the constitution, it bribes the commissioner by a double fee to pronounce against freedom. if he dooms a man to slavery, the reward is $10; but, saving him to freedom, his dole is $5.”); cong. globe, 36th cong., 1st sess. 1839 (1860) (decrying the fugitive slave law of 1850 as “a law which, in direct violation of the constitution, transfers the judicial power . . . to irresponsible commissioners . . . tendering them a bribe of five dollars if . . . he shall adjudge a man brought before him on his warrant a fugitive slave”). 108 cloud, quakers, supra note 101, at 417. 109 blackett, supra note 106, at 8; id. at 293 (noting that “because the law denied accused fugitive slaves the right to a trial by jury, it increased the chances that african americans, who were born free, and so had no need for free papers, would fall victim to kidnappers”); id. at 305 (describing “depredations of kidnapping gangs”). 2021] we do not want to be hunted 267 united states “one vast hunting ground for men.”110 it was designed, as charles langston put it in an 1859 speech, “to crush the colored man” and make him into “an outlaw of the united states,” never free, wherever he was in the country.111 in short, the law put in danger every free black person who at any moment could be stripped of their freedom and forced into enslavement.112 the act provided a dramatic illustration of the abuse of power inherent in a regime of indiscriminate search and seizure. throughout the nation, black americans and their allies resisted the act, using every tool in their arsenal to help their comrades evade capture and secure their freedom, even if it meant starting a new life in canada. opposition took many forms, including hiding fugitive slaves out of sight, helping them escape to the north, and, in some cases, even rescuing them from custody, including by armed resistance.113 black americans repeatedly invoked deeply rooted fourth amendment ideals in their campaign to prevent their communities from being torn asunder. many rallied around the principle of defending one!s home. at an abolitionist meeting in pittsburgh, martin delany insisted: my house is my castle; in that castle are none but my wife and my children, . . . whose liberty is as sacred as the pillars of god. if any man approaches that house in search of a slave . . . if he crosses the threshold of my door, and i do not lay him a lifeless corpse at my feet, i hope the grave may refuse my body a resting place.114 110 david w. blight, frederick douglass: prophet of freedom 176 (2018); id. at 234 (describing how the fugitive slave act transformed “your broad republican domain” into a “hunting ground for men”). 111 blackett, supra note 106, at 260; charles langston, speech at the cuyahoga county courthouse (may 12, 1859) (available at http://www2.oberlin.edu/external/eog/oberlin-wellington_rescue/ c._langston_speech.htm [https://perma.cc/pbu7-enly]). 112 blackett, supra note 106, at 177 (observing that “free [black people]” were “in constant danger of being taken into slavery”); kennedy, supra note 92, at 84 (explaining that the law “profoundly undermined [b]lacks! sense of security . . . by making any african-american an accusation away” from being enslaved). 113 blackett, supra note 106, at xiv (summarizing forms of opposition). 114 id. at 32. 268 colum. j. race & l. [vol. 11:239 others stressed the importance of warrants as a guarantee of personal security. rev. j.w.c. pennington warned black people about warrantless stops by the police. “it is certainly not safe in these times,” he wrote, for “a colored man to be led into a place surrounded by so many grates and bars without the protection of a legal warrant.”115 black communities throughout the north were continually over-policed,116 leading abolitionists to warn black americans that if “you value your liberty,” you should steer clear of police officers who were nothing but “hounds on the track of the most unfortunate of your race.”117 this activism in defense of freedom and personal security succeeded to a considerable extent, as “many more fugitives escaped the clutches of the law than were apprehended and returned.”118 by contesting every effort to enforce the law, black communities and their abolitionist allies highlighted the abuse of power the fugitive slave act posed.119 on the eve of the civil war, americans knew from experience the many ways in which indiscriminate search and seizure could be employed to perpetuate discrimination, subordination, and inequality. in the wake of the war!s bloody conclusion, the american people changed the constitution, ratifying the fourteenth amendment to forbid such discriminatory policing practices. b. the text and history of the fourteenth amendment when the founders wrote the fourth amendment, there was no such thing as the police.120 at the founding, criminal laws were enforced by private citizens, who took turns serving as constables.121 founding-era law enforcement was skeletal and largely ineffective. but more than eighty years later, by the time the fourteenth amendment was added to the constitution, local 115 id. at 390. 116 jonathan daniel wells, the kidnapping club: wall street, slavery and resistance on the eve of the civil war 98 (2020) (describing how new york city!s black community “chafed under constant police surveillance and harassment” and that “[e]very street inhabited by people of color was heavily policed”). 117 kennedy, supra note 92, at 84. 118 blackett, supra note 106, at 459. 119 id. at 460. 120 davies, supra note 4, at 620; thomas, supra note 68, at 1468. 121 carol s. steiker, second thoughts about first principles, 107 harv. l. rev. 820, 830#31 (1994). 2021] we do not want to be hunted 269 police were responsible for law enforcement in communities across the nation, primarily in cities.122 and police abuse lies at the core of the fourteenth amendment!s history. the fourteenth amendment was added to the constitution against the backdrop of a host of systematic violations of fundamental rights by state governments, including by the police. the fourteenth amendment changed the constitutional limits on policing in two major ways. first, it required state and local governments to respect the guarantees contained in the fourth amendment, deepening the founding!s commitment to personal security as a core constitutional value. in the process, it reconstructed what those guarantees were, taking account of new threats to personal security.123 it generated a new set of paradigm cases. at the founding, the fourth amendment was framed against the backdrop of writs of assistance and general warrants that allowed customs officers unlimited power to break into homes. the fourteenth amendment was framed against the backdrop of a host of abusive police practices used to subjugate black americans newly freed from enslavement. this included vagrancy laws that gave white police officers sweeping power to seize and arrest black americans for failing to sign a work contract, refusing to obey an employer!s order, or leaving a plantation; warrantless home invasions to seize weapons belonging to black persons; and police killings and other forms of state-sponsored violence. in applying the fourth amendment to the states, the fourteenth amendment denied police officers the power to indiscriminately search and seize black people. the fourteenth amendment was a response to the fact that 122 edward l. ayers, vengeance and justice: crime and punishment in the 19th-century american south, 82#83 (1984) (“between 1845 and the civil war virtually all of the largest cities in the country established uniformed police forces, and included in this group were southern cities of baltimore, new orleans, charleston, richmond, and savannah.”); lawrence m. friedman, crime and punishment in american history, 67 (1993) (“one of the major social innovations of the first half of the nineteenth century was the creation of police forces: full time, night-and-day agencies whose job was to prevent crime, to keep the peace, and capture criminals.”). 123 amar, bill of rights, supra note 1, at 268 (urging us to “ponder the ways in which the reconstruction experience refracted the founders! words, and perhaps deepened and extended their meaning”); taslitz, supra note 1, at 12 (arguing that the fourteenth amendment “mutated the meaning of the constitutional rules governing search and seizure”). 270 colum. j. race & l. [vol. 11:239 open-ended grants of discretionary police power were a tool of racial oppression. second, the fourteenth amendment added to the constitution the guarantee of equal protection of law, requiring the police to enforce the law in a nondiscriminatory fashion. it embodied the simple, yet radical, notion that “the law which operates upon one man shall operate equally upon all.”124 the fourteenth amendment mandates “one measure of justice” for all regardless of race.125 it forbids discriminatory policing practices that subject marginalized persons to excessive searches and seizures, just as it also forbids practices that turn a blind eye to private wrongs and violence against those persons. it sought to put an end to all forms of discriminatory policing. understanding these profound changes to our constitutional order requires us to examine the abuses that led to the fourteenth amendment and the framers! efforts to eradicate them. 1. the police abuses that led to the fourteenth amendment a. vagrancy laws the fourteenth amendment!s revolutionary mandates were added to the constitution against the backdrop of the black codes, the south!s effort to reimpose slavery, strip black people of their fundamental rights, and keep them in a subordinate status. the black codes sought to deny black people practically every aspect of freedom enjoyed by white people. the centerpiece of the codes were new vaguely-worded vagrancy laws that gave southern police sweeping powers to seize and arrest black people for failing to sign new labor contracts, disobeying an employer!s orders, or otherwise acting in ways white people deemed idle.126 as one southern newspaper 124 cong. globe, 39th cong., 1st sess. 2459 (1866). see dorothy e. roberts, the supreme court 2018 term"foreword: abolition constitutionalism, 133 harv. l. rev. 1, 70#71 (2019) (stressing the “reconstruction amendments! constitutional imperatives to end enslaving systems, provide equal protection against state and private violence, and install full citizenship”). 125 cong. globe, 39th cong., 1st sess. 2766 (1866). 126 see eric foner, reconstruction: america!s unfinished revolution, 1863#1877, at 199#202 (1988) [hereinafter foner, 2021] we do not want to be hunted 271 urged, “[t]he magistrates and municipal officers everywhere should be permitted to hold a rod in terrorem over these wandering, idle, creatures. nothing short of the most efficient police system will prevent strolling, vagrancy, theft, and the utter destruction of or serious injury to our industrial system.”127 by requiring black people to be under contract at all times, these new vagrancy laws enforced a form of “practical slavery”128 and gave police the power to seize and arrest black people as they saw fit. some, such as a vagrancy law enacted by the town of opelousas, louisiana, went even further, “investing every white man with the power and authority of a police officer as against every [b]lack man.”129 through laws like these, southern lawmakers sought to transform slave patrols into postwar police forces armed with sweeping power to “place the freedmen under a sort of permanent martial law.”130 the vagrancy laws contained in the black codes were astounding in their sweep and in the discretion they afforded. for example, mississippi!s vagrancy statute made it a criminal offense for all “freedmen, free negroes, and mulattoes” to be found, on the second monday of january 1866 “without lawful employment or business” or “unlawfully assembling themselves together, either in the day or night time.”131 a separate provision condemned as vagrants “persons who neglect their calling or employment, misspend what they earn,” “do not provide for the support of themselves or their families,” and “all other idle and disorderly persons.”132 these vagrancy laws allowed the police to stop, arrest and harass whomever they pleased. if convicted by the all-white legal system, black americans could be subjected to onerous fines, whipped, forced to work on a chain gang, or sold to white employers to pay off their fines. the “obnoxious features of reconstruction]; leon f. litwack, been in the storm so long: the aftermath of slavery 366#71 (1979); freedom: a documentary history of emancipation, 1861#1867, ser. 3, vol. 2: land and labor, 1866#1867, at 10#12, 500#01 (rené hayden et al. eds. 2013). 127 hadden, supra note 86, at 200. 128 letter from major gen. o.o. howard to sec!y of war e.m. stanton (dec. 21, 1866), reprinted in s. exec. doc. no. 39-6, at 3 (1867). 129 report of maj. gen. carl schurz on conditions of the south, s. exec. doc. no. 39-2, at 24 (1865). 130 id. 131 an act to amend the vagrant laws of the state, § 2 (nov. 24, 1865), reprinted in s. exec. doc. 39-6, at 192 (1867). 132 id. § 1. 272 colum. j. race & l. [vol. 11:239 these singular laws,” o.o. howard, commissioner of the freedmen!s bureau explained, included “[t]he arrest of unemployed persons as vagrants upon information given by any party; his trial by a justice of the peace; the sale of his services at public outcry for payment of the fine and costs, without limit as to time, and whipping and working in chain-gangs.”133 what began with an arrest often ended with re-enslavement. vagrancy laws were a critical part of the black codes! effort to re-institutionalize slavery and force black people into conditions replicating the pre-war plantation system. through vagrancy laws designed to criminalize black freedom, southern state legislatures sought to create a new form of slavery. as one observer put it, “the south is determined to have slavery"the thing, if not the name.”134 the re-establishment of slavery was made possible by the fact that the thirteenth amendment abolished chattel slavery, while sanctioning slavery or involuntary servitude “as a punishment for crime.”135 the thirteenth amendment permitted black people to be held in slavery as part of a criminal punishment. the failure of the thirteenth amendment!s punishment clause to completely eliminate slavery opened the door to the black code!s repressive regime.136 the first black codes, including mississippi!s, were set aside by the freedmen!s bureau and union military commanders 133 letter from major gen. o.o. howard to sec!y of war e.m. stanton, reprinted in s. exec. doc. 39-6, at 3. 134 cong. globe, 39th cong., 1st sess. 94 (1865). 135 u.s. const. amend xiii, § 1. 136 eric foner, the second founding: how the civil war and reconstruction remade the constitution 47#51 (2019) [hereinafter foner, second founding]; michelle goodwin, the thirteenth amendment: modern slavery, capitalism and mass incarceration, 104 cornell l. rev. 899, 933 (2019) (discussing how thirteenth amendment!s punishment clause “functionally preserved slavery as a means of persistent racial subjugation”); roberts, supra note 124, at 67 (arguing that “the punishment clause facilitated the expansion of prisons as a form of state subordination of [b]lack people and forced exploitation of [b]lack labor”); cf. james gray pope, mass incarceration, convict leasing, and the thirteenth amendment: a revisionist account, 94 n.y.u. l. rev. 1465, 1492 (2019) (arguing that amendment!s framers “read the punishment clause narrowly to cover only those features of slavery or involuntary servitude that fell within what they conceived as the $ordinary! or $usual! operation of a penal system”). 2021] we do not want to be hunted 273 as racially discriminatory,137 but were soon replaced by functionally identical, race-neutral measures that, like their predecessors, forced black people to work for white people and gave white police officers nearly unlimited power to arrest those who did not. however they were written, as historian leon litwack observes: enforcement of the vagrancy laws revealed an all too familiar double standard. if a white man was out of work, as many were in 1865, that was simply unemployment, but if a [b]lack man had no job, that was vagrancy. if a planter refused to till the fields himself, that was understandable, but if a former slave declined to work for him, that was idleness if not insolence.138 as a freedmen!s bureau official observed of alabama!s vagrancy law, “[n]o reference to color was expressed in terms, but in practice the distinction is invariable.”139 across the south, white police officers and others seized and arrested black people en masse for vagrancy and other trivial offenses, often for pretextual reasons.140 in some communities, police demanded 137 foner, reconstruction, supra note 126, at 208#09; freedom: a documentary history of emancipation, 1861#1867, ser. 3, vol. 2: land and labor, 1866#1867, at 11. 138 litwack, supra note 126, at 321; foner, reconstruction, supra note 126, at 200 (“[black people] who broke labor contracts could be whipped, placed in the pillory, and sold for up to one!s year!s labor, while whites who violated contracts faced only the threat of civil suits.”); report of the joint committee on reconstruction, h.r. rep. 39-30, pt. ii, at 86 (1866) (“there is nothing said about a white man being a vagrant if he stands around and begs for drinks; but for a [b]lack man there is a great deal of legislation necessary.”). 139 war dep!t, bureau of refugees, freedmen, & abandoned lands, report of asst. comm!rs, ala. (oct. 31, 1866), reprinted in s. exec. doc. 39-6, at 7. 140 war dep!t, bureau of refugees, freedmen, & abandoned lands, report asst. comm!r, tenn. (nov. 1, 1866), reprinted in s. exec. doc. 39-6, at 129 (“about three weeks since the police of [nashville] arrested some forty or fifty young men and boys (colored) on various pretexts, mostly for vagrancy, and they were thrown into the work-house to work out fines of from $10 to $60 each.”); letter from mississippi blacks to commander of the department of the gulf (jan. 20, 1867), reprinted in freedom: a documentary history of emancipation, 1861#1867, ser. 2: the black military experience 821 (ira berlin et al. eds., 1982) (“his de[p]uty is taking people all the time[,] men that is trave[l]ling is stop[p]ed and put in jail or forced to contract”); report of the joint committee on reconstruction, supra note 138, pt. iii, at 8 (observing that “there were a large number of negroes in jail, 274 colum. j. race & l. [vol. 11:239 that black people who were on public streets present a pass from their employer and arrested those who could not present documentation to the satisfaction of the police.141 black americans bitterly protested these injustices, objecting to the renewal of the “mounted patrol, with their sabers drawn, whose business is the hunting of colored people.”142 as a group of black people in mississippi wrote: we are to[o] well acquainted with the yelping of bloodhounds and t[e]aring of our fellow serv[a]nts to pi[e]ces when we were slaves and now we are free we do not want to be hunted by negro-runners and th[e]ir hounds unless we are guilty of a . . . crime . . . . [a]ll we ask is justice and to be treated like human[] beings.143 the singling out black people for arrest for suspected minor offenses drove a black teacher in alabama to complain, “[t]he police of this place make the law to suit themselves.”144 reports of these oppressive measures flooded the halls of the 39th congress. as one member of congress observed, “[e]very mail brings to us the records of injustice and outrage.”145 speaker after speaker denounced the vagrancy laws in the black codes, arguing that these new criminal offenses “are calculated and intended to reduce [black people] to slavery again” and “provide for selling these men into slavery in punishment of crimes of the the most of them for the most trivial of offenses,” including “breaking a plate” and “throwing a stone and a sheep”); litwack, supra note 126, at 284, 287#88, 318#19, 370 (describing mass arrests and arrests for trivial offenses); ayers, supra note 122, at 165 (noting that, in greene county, georgia, “twenty-one [b]lacks came before the county court for vagrancy in 1866; most of them received a whipping of thirty-nine lashes”); vernon lane wharton, the negro in mississippi, 1865#1890, at 91 (1947) (discussing vagrancy roundups in mississippi); freedom: a documentary history of emancipation, 1861# 1867, ser. 3, vol. 2: land and labor, 1866#1867, at 125#27, 153, 527, 530#32, 536#37, 928#29 (detailing vagrancy arrests). 141 litwack, supra note 126, at 319 (describing “mass arrests of [black people] found on the city streets after a certain hour without the permission of their employers”). 142 foner, reconstruction, supra note 126, at 155; hadden, supra note 86, at 193. 143 letter from mississippi freedpeople to the governor of mississippi, supra note 7. 144 litwack, supra note 126, at 288. 145 cong. globe, 39th cong., 1st sess. 1838 (1866). 2021] we do not want to be hunted 275 slightest magnitude.”146 these laws “reduce the negro to vagrancy and then seize and sell him as a vagrant . . . . they are denied a home in which to shelter their families, prohibited from carrying on any independent business, and then arrested and sold as vagrants because they have no homes and no business.”147 this made a mockery of their newly won freedom the thirteenth amendment had promised and led the 39th congress to push for a new constitutional amendment that would make real our constitutional ideals of liberty, equality, and equal citizenship. a crucial part of the new amendment sought to end the racialized policing practices that were being used to reinstitute slavery and to guarantee personal security and equal protection of the laws for all regardless of race. in 1866, congress formed the joint committee on reconstruction to investigate conditions in the south.148 some of the leading figures of the 39th congress, including senator jacob howard and representatives john bingham and thaddeus stevens, served on the 15-person bipartisan committee. the committee took testimony from white southerners, black americans seeking to enjoy freedom for the first time, and union officers working in the south, learning firsthand of the gruesome violence and systemic violation of fundamental rights. the committee drafted the fourteenth amendment, and its findings and the testimony it heard bore directly on the amendment it wrote.149 the joint committee on reconstruction heard extensive evidence of abuses in the south and documented how police officers used vagrancy laws to make baseless arrests of black people in order to re-establish slavery. as one witness described, 146 id. at 1123. see id. at 588 (“the adult negro is compelled to enter into contract with a master, and the district judge, not the laborer, is to fix the value of the labor. if he thinks the compensation is too small and will not work, he is a vagrant, and can be hired out for a term of service at a rate again to be fixed by the judge.”); id. at 589 (“[t]he vagrant negro may be sold to the highest bidder to pay his jail fees.”); id. at 783 (“[t]heir courts have sold the freedmen into slavery the next day under some pretense of punishing him for vagrancy or something else equally absurd.”); id. at 1833 (quoting press report stating that the “barbarous vagrant law recently passed by the rebel state legislature is rigidly enforced” and “freed slaves are rapidly being reenslaved”). 147 id. at 1160. 148 cong. globe, 39th cong., 1st sess. 6, 30 (1865). 149 foner, reconstruction, supra note 126, at 239, 246#47; amar, bill of rights, supra note 1, at 187. 276 colum. j. race & l. [vol. 11:239 “[t]he county police” enforced the vagrancy law “on a person who had employment” and “was earning her own living, who went out to get her own children. she was seized . . . ; her children refused to her, and under the vagrant act she was set to work on the old plantation without pay, simply for her board and clothes, as a slave.”150 thomas conway, who had served as an assistant commissioner of the freedmen!s bureau in louisiana, told the joint committee: [in new orleans,] the police of that city conducted themselves towards the freedmen, in respect to violence and ill usage, in every way equal to the old days of slavery; arresting them on the streets as vagrants . . . simply because they did not have in their pockets certificates of employment from their former owners or other white citizens.151 he described how he had “gone to the jails and released large numbers of them, men who were industrious and who had regular employment; yet because they had not the certificates of white men in their pockets they were locked up in jail to be sent out to plantations.”152 as the debate in congress reflects, the vagrancy laws contained in the black codes were objectionable for two reasons. first, they were part and parcel of the south!s effort to re-institute slavery. the vagrancy laws sought to establish a new labor system as close to slavery as possible and to force black people to work for white people. second, vagrancy laws accomplished this end by giving white police officers nearly unfettered discretion to seize and arrest black americans, using criminal punishment as a lever to strip black people of freedom. vagrancy laws subjected black people to unreasonable seizures at the whim of the police and operated in tandem with a system of criminal justice in which it was “impossible” for the “freedmen . . . to receive anything like justice, protection, [or] equity.”153 150 report of the joint committee on reconstruction, supra note 138, pt. ii, at 177; see id. at 62 (describing “[s]everal instances” in virginia “where officers of the state attempted to enforce the vagrant laws” and “sold colored people for the coming year"sold them to service”). 151 id., pt. iv, at 79. 152 id. 153 cong. globe, 39th cong., 1st sess. 1838 (1866). 2021] we do not want to be hunted 277 b. warrantless home invasions to disarm black americans in the final months of 1865, white southerners were consumed with the baseless fear that black people newly freed from enslavement would mount an armed insurrection. they used this fear as a pretext to break into the homes of black people, take their guns, and steal their property. as one black former union soldier put it, “[t]hey have been accusing the col[o]red pe[o]ple of an ins[ur]rection which is a lie, in order that they might get arms to carr[y] out their wicked designs.”154 police, militia,155 and armed vigilantes ransacked the homes of black people and violated their most basic personal security to steal their arms, rob them, and leave them defenseless.156 sometimes, as historian dan carter explains: [officers presented their] credentials (as militia members or local police officials) and carefully wr[ote] out receipts for the confiscated arms. more often than not, however, the raids degenerated into a mob-like attack in which freedmen were abused and threatened, furniture overturned, and locked chests smashed. on the assumption that [black people] could not have acquired property 154 letter from a mississippi black soldier to the freedmen!s bureau commissioner (dec. 16, 1865), reprinted in freedom: a documentary history of emancipation 1861#1867, ser. 2, the black military experience, at 755; report of the joint committee on reconstruction, supra note 138, pt. iii, at 185 (calling fears of insurrection a “mere subterfuge by which to justify the most foul and bloody murders known to any people, upon a race that is unarmed and unable to defend themselves, much less to assume the offensive”). 155 southern militia, like the police, were charged with the responsibility “to apprehend criminals, suppress crime, and protect the inhabitants.” otis a. singletary, negro militias and reconstruction 5 (1957); foner, reconstruction, supra note 126, at 203 (“whites staffed urban police forces as well as state militias, intended, as a mississippi white put it in 1865, to $keep good order and discipline amongst the negro population.!”). 156 cong. globe, 39th cong., 1st sess. 915 (1866) (“there is one unbroken chain of testimony from all people that are loyal to this country, that the greatest outrages are perpetrated by armed men who go up and down the country searching houses, disarming people, committing outrages of every kind and description.”); id. at 40 (“in mississippi rebel state forces, men who were in the rebel armies, are traversing the state, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country.”). 278 colum. j. race & l. [vol. 11:239 except by thievery, valuables were taken without justification or explanation.157 these home invasions left black people asking “[are] we free[?],” while “holding broken locks and empty pocketbooks in their hand.”158 the joint committee heard evidence that: [in north carolina,] the local police have been guilty of great abuses by pretending to have authority to disarm the colored people. they go in squads and search houses and seize arms . . . . [a] tour of pretended duty is often turned into a spree. houses of colored men have been broken open, beds torn apart and thrown about the floor, and even trunks opened and money taken.159 in alabama, militia companies “were ordered to disarm the freedmen, and undertook to search in their houses for this purpose.”160 in texas, patrols “passed about through the settlements where negroes were living, disarmed them"took everything in the shape of arms from them"and frequently robbed them of money, household furniture, and anything that they could make of any use to themselves.”161 elsewhere, as the freedmen!s bureau documented, “civil law-officers disarm the colored man and hand him over to armed marauders.”162 in 157 dan t. carter, the anatomy of fear: the christmas day insurrection of 1865, 42 j. s. hist. 345, 361 (1976); william mckee evans, ballots and fence rails: reconstruction on the lower cape fear 71#72 (1967) (observing that “the county police began ransacking negro homes in search of weapons” and taking their property on the assumption that “any property the[] [police] found in the possession of a freedman was stolen unless he could prove otherwise in court” or “to the satisfaction of the raiding officers”). 158 letter from freedmen!s bureau subcommissioner at columbus, mississippi to the headquarters of the freedmen!s bureau acting commissioner for the northern district of mississippi (dec. 30, 1865), reprinted in freedom: a documentary history of emancipation, 1861#1867, ser. 3, vol. 1: land and labor, 1865, at 898. 159 report of the joint committee on reconstruction, supra note 138, pt. ii, at 272. 160 id., pt. iii, at 140. 161 id., pt. iv, at 49#50. 162 h.r. exec. doc. 39-70, at 239 (1866); id. at 238 (“the town marshal takes all arms from returned colored soldiers, and is very prompt in shooting [black people] whenever an opportunity occurs.”); id. at 297 (explaining the freedmen!s bureau!s “desire[] to convince the local militia that stealing clothing, 2021] we do not want to be hunted 279 communities across the south, white people, acting “under alleged orders from the colonel of the county militia, went from place to place, broke open negro houses and searched their trunks, boxes, [etc.],” and seized “not only fire-arms, but whatever their fancy or avarice desired.”163 on a daily basis, the freedmen!s bureau was flooded with complaints of “negroes robbed of guns, pistols, and ammunition, of houses broken into and searched at midnight, of negroes tied hand and foot and brutally whipped, of negroes shot at, and driven from their old homes by threats and violence.”164 c. police killings and brutality in the wake of the end of the civil war, police engaged in a campaign of brutal violence against black americans. the joint committee!s report laid out, often in gruesome detail, how white police officers were engaged in a campaign of unending violence against black americans. even these horrific instances were just a fraction of the violence committed against those seeking to enjoy freedom for the first time in their lives. as leon litwack writes, “[h]ow many [b]lack men and women were beaten, flogged, mutilated, and murdered in the first years of emancipation will never be known.”165 witness after witness recounted gratuitous, violent seizures by police officers, who were a “terror to . . . all colored people or loyal men.”166 in north carolina, the joint committee learned, the police “have taken negroes, tied them up by the thumbs, and whipped them unmercifully.”167 a freedman!s bureau officer recounted an incident in which “[a] sergeant of the local police . . . brutally wounded a freedmen when in his custody, and while the man!s arms were tied, by striking him on the head with his gun, coming up behind his back; the freedman having pistols, and money, under guise of $disarming the negroes! or stealing pistols only, is robbery”). 163 id. at 292. 164 letter from former freedmen!s bureau, acting subassistant commissioner, at athens, georgia, to the freedmen!s bureau acting assistant commissioner for georgia, reprinted in freedom: a documentary history of emancipation, 1861#1867, ser. 3, vol. 1: land and labor, 1865, at 906. 165 litwack, supra note 126, at 276#77. 166 report of the joint committee on reconstruction, supra note 138, pt. ii, at 271. 167 id. at 185. 280 colum. j. race & l. [vol. 11:239 committed no offense whatever.”168 this beating was so bad that “[t]his freedman lay in the hospital . . . at the point of death, for several weeks.”169 the same sergeant, after a search of another freedman!s house turned up no evidence of wrongdoing, “whipped him so that from his neck to his hips, his back was one mass of gashes.”170 another witness told the joint committee about how a “policeman felled [a] woman senseless to the ground with his baton” and about another incident in which a “negro man was so beaten by . . . policemen that we had to take him to our hospital for treatment.”171 a freedman!s bureau officer from new orleans recounted: one of the police officers of the city, in front of the same block where my headquarters were, went up and down the street knocking in the head every negro man, woman, and child that he met, tumbling some of them into the gutter, and knocking others upon the sidewalks.172 the joint committee also learned that state militia organizations are “one of the greatest evils existing in the southern states for the freedmen. they give the color of law to their violent, unjust, and sometimes inhuman proceedings.”173 southern white militia, like southern police forces, “hunted, beat, and shot” people of color “so indiscriminately.”174 freedmen!s bureau officials told the joint committee how the 168 id. at 209. 169 id. 170 id. 171 id. at 271. 172 id., pt. iv, at 80. for additional documentation, see freedom: a documentary history of emancipation 1861#1867, ser. 2, the black military experience, at 743 (statement of a tennessee [b]lack sergeant that a policeman “struck me with his club, on the head” and then “another policeman came up and he struck me several times[,] and they thru [sic] me down and stamped me in the back while lying on the ground”); hadden, supra note 86, at 217 (describing “white officers . . . beating [b]lack suspects for no reason”); howard n. rabinowitz, race relations in the urban south 1865#1890, at 55 (1978) (discussing 1866 case of “richmond policeman . . . charged with kicking a negro down the station house steps,” which was dismissed with “the admonition that he be less aggressive in the future”); litwack, supra note 126, at 290 (describing may 1866 incident in which “the chief of police shot and killed a young freedman while arresting him for a misdemeanor”). 173 report of the joint committee on reconstruction, supra note 138, pt. iii, at 46. 174 id. at 185. 2021] we do not want to be hunted 281 militia was “particularly adapted to hunting, flogging, and killing colored people,”175 detailing instances in which black people were “hung and skinned,” “literally cut to pieces,” “inhuman[ly] flogg[ed], ““shamefully beaten” and “shot.”176 police brutality and murder flared up in the spring and summer of 1866 as congress completed its work on the fourteenth amendment and the american people considered whether to ratify the amendment. these tragic events served as a reminder that state governments would not respect the fundamental rights of black americans and that racial violence and discriminatory policing would continue unchecked without new constitutional protections. these bloody events, as harper!s weekly put it, accomplished “more than the abstract argument of a year to impress the country with the conviction that we cannot wisely hope for peace at the south so long as inequality of guarantees of personal and political liberty endure.”177 in memphis, tennessee, on may 1, 1866, clashes between recently discharged black soldiers and white police officers exploded in three days of racial violence.178 the result was a killing spree led by the memphis police force to exterminate black people and destroy the community they had built. the conflict, as a subsequent congressional investigation concluded, “was seized upon as a pretext for an organized and bloody massacre of the colored people of memphis” and was “led on by sworn officers of the law.”179 as the investigation found: the whole evidence discloses the killing of men, women, and children"the innocent, unarmed, and defenceless pleading for their lives and crying for mercy; the wounding, beating, and 175 id. 176 id. at 142, 146, 185. 177 the new orleans report, 10 harper!s wkly. 658 (1866). see kurt t. lash, the origins of the privileges or immunities clause, part iii: andrew johnson and the constitutional referendum of 1866, 101 geo. l.j. 1275, 1307 (2013) (“no single event in 1866 more clearly illustrated the states! continued failure to protect the constitutionally enumerated rights of american citizens than the new orleans riot of july 30, 1866.”). 178 for accounts of the memphis massacre, see foner, reconstruction, supra note 126, at 261#62; george c. rable, but there was no peace: the role of violence in the politics of reconstruction 33#43 (1984); james gilbert ryan, the memphis riots of 1866: terror in a black community during reconstruction, 62 j. negro hist. 243 (1979). 179 memphis riots and massacres, h.r. rep. no. 39-101, at 5 (1866). 282 colum. j. race & l. [vol. 11:239 maltreating of a still greater number; burning, pillaging, and robbing; the consuming of dead bodies in the flames, the burning of dwellings, the attempts to burn up whole families in their houses, and the brutal and revolting ravishings of defenceless and terror-stricken women.180 the congressional investigation highlighted the gruesome attacks perpetrated by the memphis police, an all-white police force that had long abused black people.181 as the house report explained, “[t]he fact that the chosen guardians of the public peace . . . were found the foremost in the work of murder and pillage, gives a character of infamy to the whole proceeding which is almost without a parallel in all the annals of history.”182 it detailed one unspeakable act after another: “policemen firing and shooting every negro they met,” “policemen shooting” at black people and “beating [them] with their pistols and clubs,” high-ranking police officers exhorting the mob that all black people “ought to be all killed,” and policemen “firing into a hospital.”183 under the pretext of effectuating arrests or searching for weapons, police officers brutally raped black women.184 the police ransacked houses, broke open doors and 180 id. at 5; report of colonel charles f. johnson and major f.w. gilbraith on memphis riot (may 22, 1866) (“negroes were hunted down by police, firemen, other white citizens, shot, assaulted, robbed, and in many instances their houses searched under the pretense of hunting for concealed arms, plundered, and then set on fire.”) (available at https://www.freedmensbureau.com/tennessee/outrages/memphisriot.htm) [https://perma.cc/hm37-v3xn]. 181 memphis riots and massacres, h.r. rep. no. 39-101, at 6 (“[w]henever a colored man was arrested for any cause, even the most frivolous, and sometimes with cause, by the police, the arrest was made in a harsh and brutal manner, it being usual to knock down and beat the arrested party.”); id. at 30 (describing a case in which “a negro was most brutally and inhumanly murdered publicly in the streets by a policeman”); id. at 156 (testimony that “[w]hen the police arrested a colored man they were generally very brutal towards him. i have seen one or two arrested for the slightest offence, and instead of taking the man quietly to the lock-up, as officers should, i have seen them beat him senseless and throw him into a cart.”); rable, supra note 178, at 36 (“[t]he predominantly irish police went out of their way to harass [black people]; they often beat and sometimes shot [b]lack prisoners while hauling them off to jail or fired at drunken negroes who fled from them or made even a token resistance to arrest.”). 182 memphis riots and massacres, h.r. rep. no. 39-101, at 34. 183 id. at 8, 9, 10. 184 id. at 13#15. 2021] we do not want to be hunted 283 trunks, robbed people of hard-earned money, and burnt down schoolhouses and churches.185 in all these ways “the memphis massacre had the sanction of official authority; and it is no wonder that the mob, finding itself led by officers of the law, butchered miserably and without resistance every negro it could find.”186 twelve weeks later, in new orleans, local police led another massacre of black americans, this one growing out of an attempt to reconvene the louisiana constitutional convention of 1864 in order to guarantee voting rights to black louisianans and establish a new state government.187 on july 30, 1866, a small cadre of delegates gathered at the mechanics institute, joined by a group of black supporters. under the pretext of quashing what they viewed as an illegal assembly, the police, joined by a white mob, went on a killing spree. maj. gen. phillip h. sheridan called the event “an absolute massacre by the police.”188 by the time federal troops arrived, more than one hundred and fifty black persons and twenty of their white allies had been killed or wounded. a congressional investigation of the massacre found that, on the morning of the convention, “the combined police, headed by officers and firemen, . . . rushed with one will from the different parts of the city toward the institute, and the work of butchery commenced.”189 police officers, who had been armed that morning, were instructed to shoot to kill190 and “the slaughter was permitted until the end was gained.”191 as the report laid out in sickening detail, “for several hours, the police and mob, in mutual and bloody emulation, continued the butchery in the hall and on the street, until nearly two hundred 185 id. at 10, 25. 186 id. at 34. 187 see foner, reconstruction, supra note 126, at 262#63; rable, supra note 178, at 43#58. 188 new orleans riots, h.r. exec. doc. 39-68, at 11 (1867). 189 new orleans riots, h.r. rep. no. 39-16, at 17 (1867). 190 id. at 143 (“[w]e were ordered to march double-quick, and everybody commenced firing at the institute, and at the negroes in the street, no matter whether they were innocent or not; and when a negro ran, they followed him till they killed him.”). 191 id. at 17. 284 colum. j. race & l. [vol. 11:239 people were killed and wounded.”192 the report graphically continued: [m]en who were in the hall, terrified by the merciless attacks of the armed police, sought safety by jumping from the windows, . . . and as they jumped were shot by police or citizens. some, disfigured by wounds, fought their way down stairs to the street, to be shot or beaten to death on the pavement. colored persons, at distant points in the city, peaceably pursuing their lawful business, were attacked by the police, shot and cruelly beaten.”193 the scale of the cruelty and terror inflicted is hard to fathom. “[m]en were shot while waving handkerchiefs in token of surrender and submission; white men and [b]lack, with arms uplifted praying for life, were answered by shot and blow from knife and club.”194 without federal intervention, the report concluded, “the whole body of colored men” would continue to be “hunted like wild beasts, and slaughtered without mercy and with entire impunity from punishment.”195 d. police failure to protect black people and white unionists from violence in addition to these brutal acts, the police turned a blind eye to crimes committed by roving bands of white terrorists. no matter how heinous the offense, the police refused to enforce the criminal laws to protect black americans or white unionists from murder, assault, rape, and other offenses. the report of the joint committee detailed this systematic failure of legal protection, observing that “deep-seated prejudice against color . . . leads to acts of cruelty, oppression, and murder, which the local authorities are at no pains to prevent or punish.”196 without the presence of federal troops, black people “could hardly live in safety” and unionists “would 192 id. at 11. 193 id. at 10. 194 id. 195 id. at 35. 196 report of the joint committee on reconstruction, supra note 138, at xvii. 2021] we do not want to be hunted 285 be obliged to abandon their homes.”197 the committee collected reams of evidence highlighting the police!s failure to enforce criminal laws on a nondiscriminatory basis.198 reports flooded in that “the freedmen are exposed to untold hardships and atrocities” and that “combinations of returned rebel soldiers have been formed for the express purpose of persecuting, beating most cruelly, and in some cases actually murdering the returned colored soldiers of the republic,” yet because of the willful blindness of law enforcement, “the civil law affords no remedy at all.”199 witness after witness told the joint committee of “beatings and woundings, burnings and killings, as well as deprivations of property and earnings and interference with family relations"and the impossibility of redress or protection except through the united states army and freedmen!s bureau.”200 as one freedmen!s bureau agent explained: of the thousand cases of murder, robbery, and maltreatment of freedmen that have come before me, and of the very many cases of similar treatment of union citizens in north carolina, i have never yet known a single case in which the local authorities or police or citizens made any attempt or exhibited any inclination to redress any of these wrongs or to protect such persons.201 across the south, the joint committee heard, “citizens will not take any steps to arrest the murderers of negroes” and “you cannot trust even the police organized under military orders to do that work.”202 in short, “all law that protects the freedman . . . 197 id. 198 jack m. balkin, the reconstruction power, 85 n.y.u. l. rev. 1801, 1847 (2010) (“[t]he joint committee!s report focused particularly on the lack of legal protection for [black people] in the south. the majority of the injustices reported were examples of private violence and the failure of states to protect [black people] and white unionists from this violence.”). 199 cong. globe, 39th cong., 1st sess. 95, 339 (1866). 200 jacobus tenbroek, equal under law 203#04 (1965). 201 report of the joint committee on reconstruction, supra note 138, pt. ii, at 209. 202 id. at 185; id. pt. iii, at 141 (“i have not known, after six months! residence at the capital of the state, a single instance of a white man being convicted and hung or sent to the penitentiary for crime against a negro, while many cases of crime warranting such punishment have been reported to me.”); id. at 143 (“not a single instance of the outrages we investigated was ever 286 colum. j. race & l. [vol. 11:239 has been withheld from them. they are absolutely without law.”203 2. the fourteenth amendment!s limits on police abuse of power to correct these abuses, the fourteenth amendment commanded that no state shall “make or enforce any law which shall abridge the privileges or immunities of citizens of the united states,” “deprive any person of life, liberty, or property, without due process of law,” or “deny to any person within its jurisdiction the equal protection of the laws.”204 this sweeping guarantee of fundamental rights and equality effected a fundamental transformation in the constitutional law governing policing in two respects. first, the fourteenth amendment required states to respect the fourth amendment!s guarantee of personal security. at the founding, the fourth amendment constrained the acts of the federal government but did not apply to the actions of state governments. the fourteenth amendment fundamentally changed the federal-state balance by requiring states to respect the fourth amendment!s right to be secure from unreasonable searches and seizures. the overlapping guarantees contained in section 1 of the fourteenth amendment were written to “forever disable” the states “from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the united states, and to all persons who may happen to be within investigated or prosecuted by the civil authorities.”); id. at 149 (“[w]henever a wrong was done to a freedman it seldom, if ever, occurred that any of the white people would interpose to bring the wrong-doer to justice.”); id. at 184 (“since my arrival more than fifty well-authenticated complaints have been made by the freedmen, . . . all of which have been referred to the civil authority; but, with one single exception, no action has been taken in any instance.”); id. pt. iv, at 48 (testimony that “it was impossible” for state authorities “to arrest anybody or hold anybody accountable for acts committed against the negroes”); id. at 75 (“[i]t is of weekly, if not of daily, occurrence that freedmen are murdered. their bodies are found in different parts of the country, and sometimes it is not known who the perpetrators are; but when that is known no action is taken against them.”); id. at 125 (“[w]here [black people] were killed, no white resident interposed to bring the offender to justice.”); id. at 153 (“[t]he prevailing sentiment is so adverse to the negro that acts of monstrous crime against him are winked at.”). 203 id. pt. iii, at 184. 204 u.s. const., amend. xiv, § 1. 2021] we do not want to be hunted 287 their jurisdiction.”205 “the great object of the first section of th[e] amendment,” senator jacob howard explained, is “to restrain the power of the states and compel them at all times to respect these great fundamental guarantees.”206 the fourteenth amendment reflected that “there are some inherent and inalienable rights, pertaining to every citizen, which cannot be abolished or abridged by state constitutions or laws,” including the “right to live, the right of personal security, personal liberty, and the right to acquire and enjoy property.”207 all governments had to respect the fourth amendment!s guarantee against unreasonable searches and seizures. introducing the fourteenth amendment in the senate, senator howard stressed that the amendment would require states to respect the “personal rights guarantied and secured by the first eight amendments of the constitution,” including “the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit.”208 fourth amendment rights were basic and inherent rights that could no longer be abridged by state and local governments.209 supporters of the amendment demanded “the constitutional rights of the citizen; those rights specified and enumerated in the great charter of american liberty” including those that guarantee “security to life, person 205 cong. globe, 39th cong., 1st sess. 2766 (1866). 206 id. 207 id. at 1832, 1833. 208 id. at 2765; id. at 1629 (arguing that the very definition of republican government required respect for “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”). see also cong. globe, 42nd cong., 1st sess. 475 (1871) (urging legislation “to render the american citizen more safe in the enjoyment of [his] rights, privileges, and immunities” including the protection of “his house, his papers, and his effects . . . against unreasonable seizure”); id. app. at 84 (arguing that “the privileges and immunities of citizens of the united states . . . are chiefly defined in the first eight amendments to the constitution of the united states”). 209 amar, bill of rights, supra note 1, at 267. after the fourteenth amendment!s ratification, even congressional opponents of civil rights recognized that the amendment prohibited states from violating the fourth amendment!s prohibition on unreasonable searches and seizures. 43 cong. rec. 384#85 (1874) (arguing that among the privileges and immunities guaranteed by the fourteenth amendment was “immunity of one!s person, house, and papers against unlawful search or seizure”). 288 colum. j. race & l. [vol. 11:239 and property.”210 they insisted on securing to all “the rights that belong under the federal constitution to persons who are free,” including the right “to be free from unreasonable searches and seizures.”211 the fourteenth amendment sought to make “the security of life, person and property, a reality and not a mere sham, all over the land.”212 this was necessary because of systematic violations of personal security by the states detailed in congressional debates and in the report of the joint committee. during the debates in the 39th congress, members of congress denounced southern abuses that denied black americans personal security and freedom of movement, subjected them to being stopped or arrested by the police, and, all too often, being sold back into slavery. “what kind of freedom,” senator lyman trumbull asked, “is that which the constitution of the united states guaranties to a man that does not protect him from the lash if he is caught away from home without a pass?”213 others described how vagrancy laws gave the police sweeping powers of arrest, licensed unreasonable seizures of black people, and made a mockery of the constitution!s promise of freedom and personal security. senator henry wilson argued that “[t]hese freedmen are as free as i am, to work when they please, to play when they please, to go where they please . . . and to use the product of their labor.”214 they had to be treated with “the conscious dignity of a free man.”215 when black people “are subject to a system of vagrant laws which sells them into slavery or involuntary servitude, which operates upon them as upon no other part of the community, they are not secured in the rights of 210 the southern loyalists convention, trib. tracts no. 2, july 10, 1866, at 25 (letter submitted by the convention of southern unionists to the people of the united states). 211 michael kent curtis, no state shall abridge: the fourteenth amendment and the bill of rights 140 (1986) (quoting remarks of judge noah dawes at republican union state convention held in syracuse, new york on sept. 5, 1866) [hereinafter curtis, no state shall abridge]. 212 lash, supra note 177, at 1322 (quoting secretary browning!s letter, evening post, oct. 24, 1866). 213 cong. globe, 39th cong., 1st sess. 941#42 (1866). 214 id. at 41; id. at 111 (“[w]e must see to it that the man made free by the constitution of the united states . . . is a freeman indeed; that he can go where he pleases; work when and for whom he pleases.”). 215 id. 2021] we do not want to be hunted 289 freedom.”216 many speakers invoked the well-known case of samuel hoar, who was expelled from south carolina in the 1840s when he sought to challenge how the state had “manacled colored seamen on the decks of massachusetts ships” simply because they were black.217 these systematic violations of the right to be secure made it necessary to ensure that all governments" whether federal or state"respected the right to be free from unreasonable searches and seizures. in requiring states to respect the fourth amendment!s right to be secure against unreasonable searches and seizures, the framers of the fourteenth amendment rebelled against the broad, discretionary search and seizure powers that southern governments were using to subject black people to intrusive searches, pretextual arrests, and violent seizures. for example, the framers of the fourteenth amendment abhorred vagrancy laws that subjected black americans to being stopped and seized at the whim of a white police officer. laws such as these sanctioned unreasonable searches and seizures, allowing a police officer to stop and arrest black persons on almost any pretense.218 as at the founding, the framers of the fourteenth amendment viewed indiscriminate searches and seizures as categorically unreasonable. like the founders, the framers of the fourteenth amendment understood that true freedom and personal security could not exist if the police had excessive discretion to search and seize. the fourteenth amendment revitalized the fundamental principle that police may not have open-ended power to search and seize persons and applied it to eliminate southern abuses used to subordinate and subjugate black americans. 216 id. at 1124. see id. at 111 (rejecting “that kind of freedom that turns the emancipated working man out into the highway, then takes him up as a vagrant and makes a slave of him because he cannot get a home”); id. at 1839 (denouncing vagrancy laws “calculated to virtually make serfs of the persons that the constitutional amendment made free”). 217 id. app. at 142; id. at 41 (1865) (describing the “celebrated case of mr. hoar, who went to south carolina” and “was driven out, although he went there to exercise a plain constitutional right”); amar, bill of rights, supra note 1, at 236 (noting that “hoar!s case still burned bright in the memories of members of congress, who repeatedly cited the incident”). 218 amar, bill of rights, supra note 1, at 268 (arguing that the fourteenth amendment “meant to stamp out” provisions of the “black codes that had designated [black people] as special targets for various searches and seizures”). 290 colum. j. race & l. [vol. 11:239 to that end, the framers of the fourteenth amendment viewed the requirement of a valid warrant supported by probable cause as crucial. virtually all of the police abuses that led to the fourteenth amendment involved warrantless searches and seizures, illustrating the dangers of allowing the police to search and seize without any judicial check. as senator jacob howard insisted, states would have to respect the fourth amendment!s “right to be exempt” from “any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit.”219 howard!s formulation was perhaps too broad. some searches"such as searches incident to arrest"did not require a warrant. but, senator howard!s description captured the basic idea that warrants were understood as a critical check on police overreaching and abuse and thus were generally required. in applying the fourth amendment to the states, the framers of the fourteenth amendment generated new insights as well. most significantly, the reconstructed fourth amendment was intimately tied to principles of equality. by requiring states to respect the fourth amendment!s right to be secure from unreasonable searches and seizures, the fourteenth amendment sought to eliminate oppressive practices that subjected black americans to searches and seizures at the whim of the police. the framers of the fourteenth amendment understood that giving the police excessive discretion licensed discrimination and subordination. thus, open-ended police power offended not only liberty and personal security, but also equality. the promise of equal citizenship at the core of the fourteenth amendment demanded limits on police discretion to search and seize. just as important, the fourteenth amendment was centrally concerned, in a way the original fourth amendment was not, with police violence. the fourteenth amendment struck at centuries of history that permitted black bodies to be violated indiscriminately, and instead promised personal security to all. the fourteenth amendment repudiated what reconstruction congressman carl schurz called rule by “the terrorism of the mob,” “the policeman!s club,” and “the knife of the assassin,”220 ensuring a remedy against the police “driving away and 219 cong. globe, 39th cong., 1st sess. 2765 (1866). 220 carl schurz, the logical results of the war, in 4 speeches, correspondence and political papers of carl schurz 377, 413 (frederic bancroft ed., 1913). 2021] we do not want to be hunted 291 murdering like outlaws the most faithful friends of the union of liberty” and “repeating the horrors of fort pillow,” a gruesome civil war massacre of black soldiers, “on the streets of memphis and new orleans.”221 the amendment would prevent individuals from “being beaten, maimed, murdered or driven away for exercising the freedom of speech,” as had occurred in new orleans.222 it would “fetter forever” state sanctioned “cruelty and carnage and murder.”223 the american people ratified the fourteenth amendment against the backdrop of horrific instances of police beatings and murder, recognizing that new constitutional protections were necessary to ensure the right to life, basic dignity, and personal security for all regardless of race. second, the fourteenth amendment added to the constitution the guarantee of the equal protection of the laws. both the constitutional command of equality and duty of protection loomed large to the framers of the fourteenth amendment. during the debates over the fourteenth amendment, members of congress explained that the equal protection guarantee “establishes equality before the law,” and “does away with the injustice of subjecting one caste of persons to a code not applicable to another. it prohibits the hanging of a [b]lack man for a crime for which the white man is not to be hanged.”224 it requires “one measure of justice” for all persons regardless of race.225 it demands that “[w]hatever law punishes a white man for a crime shall punish the [b]lack man precisely in the same way and to the same degree.”226 against the backdrop of a long list of police abuses, the fourteenth amendment!s simple but far-reaching command of equality prohibited all forms of discrimination in the criminal justice system, including all forms of discriminatory policing. the fourteenth amendment!s use of the term “equal protection” was consciously chosen. as eric foner observes, “[i]n the context of the violence sweeping the postwar south, the word 221 id. at 390. 222 curtis, no state shall abdridge, supra note 211, at 144 (citations omitted). 223 john a. bingham, a noble and eloquent plea for the country (sept. 4, 1866), in mr. bingham!s speech, wheeling daily intelligencer, sept. 5, 1866, at 2. 224 cong. globe, 39th cong., 1st sess. 2766 (1866). 225 id. 226 id. at 2459. 292 colum. j. race & l. [vol. 11:239 $protection!; in the fourteenth amendment conjured up not simply unequal laws but personal safety.”227 the framers understood the right to protection as a basic fundamental right,228 and in the text of the equal protection clause, they imposed a constitutional obligation on the states to protect all persons equally. states could not turn a blind eye to criminal acts or private violations of rights committed against people of color or other disfavored groups. the fourteenth amendment “h[e]ld over every american citizen, without regard to color, the protecting shield of law” and gave to “the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.”229 in sum, as framer samuel shellabarger later observed, the fourteenth amendment mandates “equal laws and protection for all.”230 the fourteenth amendment!s guarantee of equal protection meant that southern police could not continue to ignore white terroristic violence aimed at people of color. the government had to enforce its criminal and civil laws to protect black americans and their allies from murder, rape, robbery, and other wrongs.231 227 foner, second founding, supra note 136, at 79. 228 steven j. heyman, the first duty of government: protection, liberty and the fourteenth amendment, 41 duke l.j. 507, 546#61 (1991); balkin, supra note 198, at 1847 (describing “right of protection” as “one of the most basic rights of citizens”). the supreme court has suggested that nothing in the fourteenth amendment “itself requires the state to protect the life, liberty, and property of its citizens against invasion by private actors,” but this reflects a failure to take account of the text and history of the fourteenth amendment, which obligated states to provide the equal protection of the laws in response to the fact that southern government were systematically refusing to enforce the laws to protect black americans and their white allies. deshaney v. winnebago cnty. dep!t soc. servs., 489 u.s. 189, 195 (1989). see heyman, supra, at 509 (critiquing deshaney as inconsistent with “the original understanding of the fourteenth amendment”); evan d. bernick, antisubjugation and the equal protection of the laws, 110 geo. l.j. (forthcoming 2021) (arguing that deshaney cannot be squared with the original meaning of the fourteenth amendment!s equal protection guarantee). 229 cong. globe, 39th cong., 1st sess. at 2462, 2766 (1866). 230 cong. globe, 42nd cong., 1st sess. app. at 71 (1871). 231 see stuntz, american criminal justice, supra note 1, at 291 (“[t]he fourteenth amendment!s guarantee of $equal protection of the laws! meant roughly what it said: all citizens had the same right to the law!s protection. ex-slaves terrorized by klan members were entitled to a government that did its best to stop the terrorism.”); balkin, supra note 198, at 1847 (arguing that “the protection of [black people] and their white allies from private violence” was “a central and immediate purpose of the new amendment”); akhil reed 2021] we do not want to be hunted 293 the efforts of our constitution!s framers to guarantee personal security and check abuse of power by law enforcement is only part of the story. both at the founding and in the wake of the civil war, our constitution!s framers were dedicated to ensuring a system of remedies to individuals harmed by abuse of power. the next section turns to examine that system. iv. maintaining constitutional accountability courts are at the center of our constitution!s system of accountability. the framers designed “the judicial department” to be a “constitutional check,”232 reflecting their understanding that “no other body . . . can afford such a protection” against “infringement on the constitution.”233 they did not trust the other branches to police themselves and they therefore empowered the courts to play the essential role of maintaining constitutional accountability. steeped in the writings of william blackstone, the framers understood that rights and remedies must go hand in hand if courts were to play their role of expounding the law and vindicating individual rights. in other words, “a right implies a remedy.”234 the text of the fourth amendment does not address remedies for violations of the right to be secure from unreasonable searches and seizures. but, the historical record is clear that the framers viewed civil suits against law enforcement officers as a critical check on abusive searches and seizures by the government. this was one of the central lessons of wilkes and other cases of the 1760s, in which juries awarded substantial tort damages to individuals whose homes were invaded or whose papers were searched by the crown.235 these cases highlighted amar, foreword: the document and the doctrine, 114 harv. l. rev. 26, 102 (2000) (explaining that the equal protection guarantee “at its core affirms the rights of victims to be equally protected by government from criminals”); alexis hoag, valuing black lives: a case for ending the death penalty, 51 colum. hum. rts. l rev. 983, 1001 (2020) (“forefront in the framers! minds was to provide redress to black victims of crimes, and to end the legal discrepancies that had long existed in southern states.”). 232 2 elliot!s debates, supra note 5, at 196. 233 3 id. at 554. 234 the federalist no. 43, at 274 (james madison) (clinton rossiter ed., 1961). 235 cuddihy, supra note 25, at 760 (“to americans, one lesson of the wilkes cases was that juries could avert outrageous searches by subjecting those responsible to exemplary, financial damage.”); george c. thomas iii, 294 colum. j. race & l. [vol. 11:239 the role of the jury in awarding damages and limiting abuse of power by the government. they taught the founding generation a powerful lesson: juries could help prevent unreasonable searches and seizures by making officers pay when they abused their authority. the framers did not forget these lessons when they debated adding a search-and-seizure guarantee to the constitution. those urging new protections consistently emphasized the importance of civil damage remedies to curb the unbridled discretion of federal officers. it was common ground among the framing generation that civil damage remedies were necessary to prevent abuse of government power. for example, a maryland anti-federalist essayist, writing under the name of “a farmer,” insisted on the constitutional checking function performed by civil suits. [n]o remedy has been yet found equal to the task of deterring and curbing the insolence of office, but a jury"it has become an invariable maxim of english juries, to give ruinous damages whenever an officer had deviated from the rigid letter of the law, or been guilty of any unnecessary act of insolence or oppression.236 during debates in pennsylvania in 1787, one anti-federalist wrote: [if] a constable, having a warrant to search for stolen goods, pulled down the clothes of a bed in which there was a woman, and searched under her shift . . . a trial by jury would be our safest resource, heavy damages would at once punish the offender, and deter others from committing the same.237 likewise, in massachusetts, the essayist hampden insisted that “without [a jury], in civil actions, no relief can be had against the stumbling toward history: the framers! search and seizure world, 43 tex. tech l. rev. 199, 215 (2010) (“[t]ort law brought the king, his ministers, and his secretary of state to their knees.”). 236 essays by a farmer (i), balt. md. gazette, feb. 15, 1788, reprinted in 5 the complete antifederalist, supra note 57, at 14. 237 essay of a democratic federalist, penn. herald, oct. 17, 1787, reprinted in 3 the complete anti-federalist, supra note 57, at 61. 2021] we do not want to be hunted 295 high officers of state, for abuse of private citizens.”238 in short, the fourth amendment was added against the backdrop of a system that allowed individuals to bring civil suits to redress unlawful searches and seizures by the government. eight decades later, in the wake of the fourteenth amendment!s ratification, the framers of the fourteenth amendment built on this same system of remedies. in 1871, congress enacted 42 u.s.c. § 1983 to enforce the fourteenth amendment. to this day, this remains one of the most important federal statutes ensuring that individuals have their day in court when state actors violate federal rights. against the backdrop of systematic discrimination in the criminal justice system,239 congress provided that an “injured party should have an original action in our federal courts, so that by injunction or by the recovery of damages he could have relief against the party who under color of such law is guilty of infringing his rights.”240 this would “carry into execution the guarantees of the constitution in favor of personal security and personal rights.”241 the reconstruction congress also empowered the federal government to bring criminal charges against officials who violated constitutional rights under color of law,242 but the criminal remedy was not designed to be exclusive. section 1983 explicitly created a federal civil remedy that allowed those victimized by governmental abuse of power to go to court to seek redress. as senator henry wilson observed, “[w]hat legislation could be more appropriate than to give a person injured by another under color of such unconstitutional state laws a remedy by civil action?”243 in enacting section 1983, congress concluded that it was necessary to “throw[] open the doors of the united states courts to those whose rights under the constitution are 238 essays by hampden, mass. centinel, feb. 2, 1788, in 4 the complete anti-federalist, supra note 57, at 200. 239 donald h. ziegler, a reassessment of the younger doctrine in light of the legislative history of reconstruction, 1983 duke l.j. 987, 1013 (1983) (discussing the reconstruction congress!s “repeated familiar complaints concerning the widespread, systemic breakdown in the administration of southern justice”). 240 cong. globe, 42nd cong., 1st sess. 501 (1871). 241 id. at 374. 242 see 18 u.s.c. § 242; screws v. united states, 325 u.s. 91, 98#100 (1945) (describing history of the federal criminal law designed “to enforce the fourteenth amendment”). 243 cong. globe, 42nd cong., 1st sess. 482 (1871). 296 colum. j. race & l. [vol. 11:239 denied or impaired,” and ensure the power of the judiciary to “hear with impartial attention the complaints of those who are denied redress elsewhere.”244 in this respect, section 1983 reflected the framers! vision that “judicial tribunals of the country are the places to which the citizen resorts for protection of his person and his property in every case in a free government.”245 v. the document v. the doctrine: the supreme court!s failure to honor our whole constitutional story of race and policing the text and history of the fourth and fourteenth amendments, laid out in the prior sections, provides a benchmark to assess the supreme court!s policing jurisprudence. as this part demonstrates, the doctrine falls woefully short. the supreme court has repeatedly betrayed the fourth amendment!s promise of personal security for all regardless of race and the fourteenth amendment!s promise of equal protection for all persons. first, rather than reading the fourth amendment in light of the fourteenth amendment, the supreme court!s fourth amendment doctrine has repeatedly employed open-ended balancing tests to erode constitutional rights, sanction racialized policing practices, and concentrate power in the police. the court!s doctrine ignores race, even as race continues to determine systematically who is policed and who is not. second, the court!s fourteenth amendment jurisprudence has effectively eliminated equal protection as a constraint on policing. as a result, when it comes to policing, equal protection no longer protects. third, the court has systematically gutted remedies for police abuse of power, closing the courthouse doors on those seeking to hold the police accountable for violating constitutional rights. in all these ways, the court has crafted constitutional doctrine that disrespects, rather than honors, our constitution!s text, history, and values. the court!s failure to give fourteenth amendment history its due has produced a set of deeply flawed doctrines. 244 id. at 376, 459. 245 id. at 578. 2021] we do not want to be hunted 297 a. the new police discretion: fourth amendment reasonableness and the rebirth of discretionary police power the court!s modern fourth amendment jurisprudence is organized around the idea that “the ultimate measure” of the constitutionality of a government search or seizure is “reasonableness.”246 the court!s governing doctrinal test requires “balancing its intrusion on the individual!s fourth amendment interests against its promotion of legitimate governmental interests.”247 this ad hoc balancing test “eschew[s] the fourth amendment!s foundational principles, instead using social needs, wants, and goals as reasons for decision.”248 and as a result, fundamental constitutional safeguards"such as the need to check excessive discretion and prevent arbitrary and discriminatory policing"often play virtually no role in the 246 see, e.g., vernonia sch. dist. 47j v. acton, 515 u.s. 646, 652 (1995); maryland v. king, 569 u.s. 435, 447 (2013). there is a huge scholarly literature on the development of the court!s fourth amendment reasonableness doctrine, much of it critical. see, e.g., maclin, central meaning, supra note 4, at 201 (questioning the court!s current framework because the “constitutional lodestar for understanding the fourth amendment is not an ad hoc reasonableness standard; rather, the central meaning of the fourth amendment is distrust of police power and discretion”); barry friedman & cynthia benin stein, redefining what!s #reasonable$: the protections for policing, 84 geo. wash. l rev. 281, 297 (2016) (observing that “the court is well on its way to turning the question of what is $reasonable! under the fourth amendment into a generalized and uncabined balancing test” and that this balancing test is “pernicious” because “the court!s idea of $balancing! is illusory"the test is rigged such that the government almost always wins”); thomas k. clancy, the fourth amendment!s concept of reasonableness, 2004 utah l. rev. 977, 1028 (urging that “[a]ny measure of reasonableness must be premised on [constitutional] values; otherwise, reasonableness analysis is subject to deprecation by interpretation favoring governmental needs”); scott e. sundby, a return to fourth amendment basics: undoing the mischief of camara and terry, 72 minn. l. rev. 383, 385 (1988) (arguing that “reasonableness is a slippery concept that, without definitional restraints, can allow the range of acceptable government intrusions to expand and overwhelm the privacy interests at stake”). for a defense of the turn to reasonableness, see amar, first principles, supra note 77, at 804 (arguing that “[o]nly by keeping our eyes fixed on reasonableness as the polestar of the fourth amendment can we steer our way to a world where serious, sustained, and sensible fourth amendment discourse can occur”). 247 see, e.g., delaware v. prouse, 440 u.s. 648, 654 (1979). see also wyoming v. houghton, 526 u.s. 295, 300 (1999). 248 morgan cloud, the fourth amendment during the lochner era: privacy, property, and liberty in constitutional theory, 48 stan. l. rev. 555, 617 (1996). . 298 colum. j. race & l. [vol. 11:239 court!s conception of fourth amendment reasonableness. instead, reasonableness review is simply a matter of comparing costs and benefits. this subjective, easily manipulable balancing test has swelled police power. rather than serving as a check on the police, the supreme court has repeatedly balanced away the fourth amendment!s core safeguard against excessive police discretion to search and seize, often making fourth amendment reasonableness review into a toothless inquiry, akin to the rational basis test.249 by giving the police new discretionary powers, the court has sanctioned discriminatory policing, racial profiling, and police violence. it has turned a blind eye to the fourteenth amendment!s transformative guarantees designed to put a stop to such practices and erased the fourteenth amendment from the constitutional narrative of policing. this section examines how the court has failed to protect our right to be secure in three critical settings: in the streets, on the road, and at school. 1. terry v. ohio and the withering of the right to be secure in the streets the fourteenth amendment promised freedom of movement and personal security in the streets to all without regard to race. the amendment sought to prevent white police officers from enforcing vagrancy laws to stop, seize, and arrest 249 under the supreme court!s equal protection doctrine, “a classification neither involving fundamental rights nor proceeding along suspect lines . . . cannot run afoul of the equal protection clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” heller v. doe, 509 u.s. 312, 319#20 (1993). this test, perhaps the least protective used in constitutional law, is highly deferential and gives the government very wide leeway to enact legislation that favors some persons and disfavors others. as fourth amendment scrutiny has become more deferential to the police, upholding searches and seizures as reasonable if based on a legitimate law enforcement objective, it begins to approximate the rational basis test, as a number of scholars have observed. see steiker, supra note 121, at 855 (“[j]udgments couched in terms of $reasonableness! slide very easily into the familiar constitutional rubric of $rational basis! review"a level of scrutiny that has proven to be effectively no scrutiny at all.”); maclin, central meaning, supra note 4, at 199#200 (arguing that fourth amendment reasonableness review “approximates the rational basis standard” because “[i]f the court can identify any plausible goal or reason that promotes law enforcement interests, the challenged police intrusion is considered reasonable and the constitutional inquiry is over”). 2021] we do not want to be hunted 299 black people en masse. for a very brief moment during reconstruction, newly established southern governments, in which black americans served as enforcers of the law in ways previously unimaginable, respected the promises contained in the fourteenth amendment.250 but, “[w]hen whites after reconstruction moved on every front to solidify their supremacy, nowhere was the reassertion of power over [b]lack lives more evident than in the machinery of the police and the criminal justice system.”251 in the late nineteenth and early twentieth centuries, vagrancy laws were a key piece of the legal apparatus designed to “criminalize black life” and subject black americans to a new form of slavery, in which those convicted of crimes were effectively sold to white persons willing to pay the fees assessed as part of their criminal punishment.252 well into the mid-1960s, police continued to use vagrancy laws to subordinate and subjugate black americans.253 white police officers employed vagrancy charges to arrest anyone who bucked jim crow. vagrancy laws would eventually be declared unconstitutionally vague because of the “unfettered discretion” they gave the police.254 but they would soon be replaced by stop-and-frisk.255 250 see foner, reconstruction, supra note 126, at 362#63 (discussing transformations that occurred during reconstruction when “the machinery of southern law enforcement . . . fell into republican hands”). 251 leon f. litwack, trouble in mind: black southerners in the age of jim crow 247#48 (1998). 252 douglas a. blackmon, slavery by another name: the re-enslavement of black americans from the civil war to world war ii, at 53#54, 99 (2008); roberts, supra note 124, at 34 (“[f]or more than a century, vague vagrancy and antiloitering ordinances have given police officers license to arrest [b]lack people standing in the public streets"with no attention to whether or not their presence caused any harm to anyone.”). for discussion of the use of vagrancy charges to sell black people into slavery, see blackmon, supra, at 1#2, 79#80, 333, 366, 375. 253 risa goluboff, vagrant nation: police power, constitutional change, and the making of the 1960s, at 112#27 (2016). 254 papachristou v. city of jacksonville, 405 u.s. 156, 168 (1972). 255 stop-and-frisk is a form of investigative detention by the police that falls short of a full custodial arrest. see wayne r. lafave, #street enconters$ and the constitution: terry, sibron, peters, and beyond, 67 mich. l. rev. 39, 42 (1968) (describing stop and frisk as a “police procedure for officers to stop suspicious persons for questioning and, occasionally, to search these persons for dangerous weapons”). on the relationship between vagrancy laws and stop-andfrisk, see goluboff, supra note 253, at 198#208; tracey meares, this land is my land?, 130 harv. l. rev. 1877, 1893 (2017) (reviewing goluboff, supra note 253) (observing that “the stories told by usually [b]lack and [b]rown youth being policed programmatically in cities across the country echo the accounts of 300 colum. j. race & l. [vol. 11:239 just as vagrancy laws replaced slave patrols, stop-and-frisk replaced vagrancy laws as a means of controlling black people and enforcing their subordinate status.256 terry v. ohio257 sanctioned stop-and-frisk. terry involved a stop-and-frisk of a black man who, according to the police officer, was walking back and forth and peering into a jewelry store window. thinking that he appeared out of place, the officer approached terry, asked for identification, spun him around, and patted him down, finding a pistol.258 in one of the court!s most important fourth amendment rulings, terry upheld the constitutionality of stop-and-frisk and dispensed entirely with the amendment!s foundational requirements of a warrant and probable cause. this key move contained the seeds for a massive expansion in the power of the police to invade the personal security of people"particularly people of color"in the streets and elsewhere. the linchpin of chief justice earl warren!s opinion was that stop-and-frisk “must be tested by the fourth amendment!s general proscription against unreasonable searches and seizures.”259 the chief justice!s majority opinion recognized that vagrancy policing goluboff offers in her book”); pope, supra note 136, at 1528# 29 (“no sooner had the supreme court at long last struck down traditional vagrancy laws, than they were replaced with a host of new statutory crimes, harsh sentences, and enforcement policies targeted at behaviors, conditions, and locations associated with poverty and racial disadvantage.”). 256 this is a textbook example of the dynamic that reva siegel calls preservation-through-transformation. see reva siegel, why equal protection no longer protects: the evolving forms of status-enforcing state action, 49 stan. l. rev. 1111, 1119 (1997). 257 392 u.s. 1 (1968) (holding that stop-and-frisk policies are constitutional under a “reasonableness” standard even without a warrant or probable cause). 258 id. at 5#7. 259 id. at 20. terry was by no means the first supreme court decision to frame the relevant fourth amendment inquiry in terms of reasonableness. decades earlier, in carroll v. united states, 267 u.s. 132 (1925), the supreme court had stressed that “[t]he fourth amendment does not denounce all searches or seizures, but only such as are unreasonable.” id. at 147. in doing so, the court upheld warrantless searches of automobiles in which the officer possessed “reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.” id. at 154. carroll, which established special rules for automobile searches, helped set the stage for the fundamental changes to fourth amendment doctrine terry introduced. see tracey maclin, cops and cars: how 2021] we do not want to be hunted 301 stop-and-frisk triggered the protection of the fourth amendment, but insisted that the key question was whether the police had acted reasonably. in a sense, this marked an advance in the law. police had long been making street stops, often in ways that targeted black people for arbitrary searches and seizures.260 terry insisted that police did not have carte blanche, but were subject to judicial review.261 but what terry gave with one hand it took away with the other. rather than hewing to the requirement of probable cause, chief justice warren!s majority opinion employed a balancing test that gave sweeping powers to the police with no clear limits. while the court recognized that stop-and-frisk “is a serious intrusion upon the sanctity of the person” and could give rise to “wholesale harassment” of people of color, it upheld the practice under a very forgiving standard.262 a police officer only had to “point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant th[e] intrusion.”263 terry permitted police to frisk suspects for weapons “for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime,” a standard that invited stops based on pernicious racial stereotypes that black people are dangerous.264 by dispensing with probable cause in favor of an the automobile drove fourth amendment law, 99 b.u. l. rev. 2317, 2339#42 (2019) (describing how carroll helped shape terry). 260 simon balto, occupied territory: policing black chicago from red summer to black power 129 (2019) (discussing stops made by the chicago police department in the 1940s in which officers “targeted people they found to be suspicious, routinely subjected them to searches for weapons and other contraband, and generally engaged in newly aggressive forms of racially specific harassment”); terry, 392 u.s at 14 n.11 (“the president!s commission on law enforcement and administration of justice found that $[i]n many communities, field interrogations are a major source of friction between the police and minority groups.”) (quoting president!s commission on law enforcement and administration of justice, task force report: the police 183 (1967)); gregory brazeal, mass seizure and mass search, 22 u. pa. j. const. l. 1001, 1025 (2020) (observing that “the history of programmatic stopand-frisk preceded terry and was not created by it”). 261 terry, 392 u.s. at 13#14 (recognizing that “some police $field interrogation! conduct violates the fourth amendment”). 262 id. at 17, 14. 263 id. at 21. 264 id. at 27; l. song richardson, arrest efficiency and the fourth amendment, 95 minn. l. rev. 2035, 2062#63 (2011) (arguing that “[b]y allowing 302 colum. j. race & l. [vol. 11:239 easily met reasonable suspicion standard, terry sanctioned a wide swathe of police intrusion on freedom of movement on the streets. as justice william o. douglas observed in a prescient dissent, “if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can $seize! and $search! him in their discretion, we enter a new regime.”265 terry employed its balancing approach without any sensitivity to the constitution!s text, history, and values. chief justice warren assumed that the court could balance individual and governmental interests on a clean slate. it gave no consideration at all to the text and history of the fourteenth amendment, including the framers! concerns about vagrancy laws that gave police indiscriminate power to stop and seize black americans. had the court taken the fourteenth amendment!s text and history seriously, it would not have approved stop-and-frisk on the basis of a loose constitutional standard that invites racial discrimination and enables police to act on the basis of racial stereotypes. it would not have accepted a constitutional rule that permits the police to target people of color for arbitrary, degrading, and humiliating intrusions on a regular basis.266 in terry, chief justice warren described the officer!s stop-and-frisk as simply good police practice, insisting that “the record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do.”267 but, the court did not sufficiently consider officers to act on their own interpretation of ambiguous behaviors, the reasonable suspicion test actually permits . . . actions based on racial hunches”); carbado & harris, supra note 9, at 1573 (arguing that because “reasonable suspicion is an easy evidentiary standard to meet, police officers can base their decision to stop and frisk suspects on stereotypes about criminality and dangerousness and offer race-neutral justification after the fact”). 265 terry, 392 u.s. at 39 (douglas, j., dissenting). 266 carbado, stop and frisk, supra note 9, at 1537 (describing how terry “facilitates the $wholesale harassment! of african americans through $prophylactic racial profiling!”); tracey maclin, terry v. ohio!s fourth amendment legacy: black men and police discretion, 72 st. john!s l. rev. 1271, 1278 (1998) (explaining how “terry provided a springboard for modern police methods that target [b]lack men and others for arbitrary and discretionary intrusions”). 267 terry, 392 u.s. at 28 (majority opinion). 2021] we do not want to be hunted 303 the system-wide costs of permitting police stops on a lax, forgiving standard. by jettisoning probable cause, terry made it easy for the police to stop and frisk people with virtually no evidentiary foundation. by permitting such searches on such a lenient standard, the court sanctioned lots of intrusions"mostly on people of color"that are unlikely to lead to evidence of a crime.268 terry gave police a permission slip with extremely broad consequences. over time, in cases decided by the burger and rehnquist courts, terry!s standard, forgiving from the start, became even more so. in a trio of cases decided by then-justice and chief justice william rehnquist, the court moved the law sharply in the direction of increasing police authority. the original justification for stop-and-frisk"protecting officer safety"gave way to a more general interest in crime control.269 rather than constrain terry and treat it as a narrow exception to the requirement of probable cause, the court gave police a wide berth to employ terry broadly, paying short shrift to concerns that an expansive reading of terry would license humiliating, degrading searches and seizures predominantly in communities of color. in 1972, in adams v. williams,270 the court upheld a frisk of a suspect based on an anonymous tip, who had told the police that robert williams had drugs and a gun in his waist. although it was legal to possess a gun, the majority held that the frisk that led to the seizure of the gun was reasonable because “[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known 268 friedman, unwarranted, supra note 24, at 150 (“with probable cause out the window, lots of people get stopped and frisked by the police, and comparatively little evidence or contraband is found . . . . [t]he whole point of probable cause is to indicate when a search for evidence might prove fruitful.”). 269 jeffrey fagan, terry!s original sin, 2016 u. chi. legal f. 43, 56 (describing the “doctrinal shift over time from the original officer safety rationale to permitting reasonable suspicion stops in the interest of crime control”); david a. harris, frisking every suspect: the withering of terry, 28 u.c. davis l. rev. 1, 22#23 (1994) (describing expansion of terry in the lower courts to “allow frisks automatically"categorically"in many situations in which the offense suspected does not require a weapon, and the suspect shows no outward sign he might be armed and dangerous”). 270 407 u.s. 143 (1972). 304 colum. j. race & l. [vol. 11:239 to the officer at the time.”271 in dissent, justice thurgood marshall argued that the majority “betray[ed] the careful balance that terry sought to strike between a citizen!s right to privacy and his government!s responsibility for effective law enforcement” by permitting “innocent citizens” to be “stopped, searched, and arrested at the whim of police officers who have only the slightest suspicion of improper conduct.”272 in 1989, in united states v. sokolow,273 the court approved a terry stop of a suspect in an airport based on a drug courier profile. it did not matter that the evidence on which the officer relied to justify the stop “[wa]s quite consistent with innocent travel.”274 all the officer needed was “reasonable suspicion supported by articulable facts that criminal activity $may be afoot,! even if the officer lacks probable cause.”275 the match with a drug courier profile sufficed, even though, as justice marshall observed in dissent, such profiles could be easily manipulated to allow the police to stop whomever they wanted.276 the majority, justice marshall lamented, failed to recognize that the fourth amendment “protects innocent persons from being subjected to $overbearing or harassing! police conduct carried out solely on the basis of imprecise stereotypes of what criminals look like, or on the basis of irrelevant personal characteristics such as race.”277 and, in 2000, in illinois v. wardlow,278 the court, by a 5-4 vote, approved a stop-and-frisk based on a suspect!s “unprovoked flight” in a high crime area. even if “the conduct justifying the stop was ambiguous and susceptible of an innocent explanation,” police officers could “detain the individuals to resolve the 271 id. at 146. 272 id. at 154, 162 (marshall, j., dissenting). 273 490 u.s. 1 (1989). 274 id. at 9. 275 id. at 7. 276 id. at 13#14 (marshall, j., dissenting) (observing past cases in which stops were justified by the fact that suspect was “first to deplane,” “deplaned from middle,” “last to deplane,” bought “one-way tickets,” “round-trip tickets,” was “travelling alone,” or “travelling with companion,” was “act[ing] nervously” or “too calmly”). see david cole, no equal justice: race and class in the american criminal justice system 47 (1999) (describing the drug courier profile as “a scattershot hodge-podge of traits and characteristics so expansive that it potentially justifies stopping anybody and everybody”). 277 sokolow, 490 u.s. at 12 (marshall, j., dissenting). 278 528 u.s. 119 (2000). 2021] we do not want to be hunted 305 ambiguity.”279 as chief justice rehnquist wrote, “terry accepts the risk that officers may stop innocent people.”280 wardlow!s presence in an “area of heavy narcotics trafficking” together with his “unprovoked flight upon noticing the police” permitted the police to stop and frisk him for weapons.281 wardlow gives the police more power to stop and frisk individuals in a high-crime neighborhood, brushing aside the dissent!s argument that “some citizens, particularly minorities” might flee from the police out of concern that “contact with the police can itself be dangerous.”282 as wardlow illustrates, the toxic role of race in policing plays no role in terry!s construction of fourth amendment reasonableness.283 the court has reviewed stop-and-frisk in the context of individual encounters, but, as tracey meares argues, “in reality stop-and-frisk is typically carried out by a police force en masse as a program” by “proactively policing people that they suspect could be offenders.”284 that is what happened in new york city from 2004#2012, when the new york police department (nypd) conducted more than four million stops and two million frisks, which were almost all on black or brown people, and which turned up, at best, paltry evidence of criminality.285 no weapon 279 id. at 125. 280 id. at 126. 281 id. at 124#25. 282 id. at 132 (stevens, j., concurring in part and dissenting in part). 283 paul butler, the white fourth amendment, 43 tex. tech l. rev. 245, 249 (2010) (describing how the court “pay[s] short shrift to race"even when race seemed an integral element”); anthony c. thompson, stopping the usual suspects: race and the fourth amendment, 74 n.y.u. l. rev. 956, 962 (1999) (criticizing “the court!s conception of a raceless world of fourth amendment jurisprudence”). see also jocelyn simonson, police reform through a power lens, 130 yale l.j. 778, 841 (2020) (observing that “our constitutional rules” often “set up a system that facilitates policing practices that target certain neighborhoods and populations, creating collective racialized harms in the process of everyday policing”). 284 tracey l. meares, programming errors: understanding the constitutionality of stop-and-frisk as a program, not an incident, 82 u. chi. l. rev. 159, 162, 164 (2015) (emphasis omitted). see also friedman, unwarranted, supra note 24, at 154 (“[r]ather than stopping on cause and frisking for protection, over time, the search became the goal and the stop merely a means to that end.”); carbado, stop and frisk, supra note 9, at 1540 (describing use of stop-and-frisk as an “order-maintenance strategy and a prophylactic device to deter [black people] from carrying weapons or otherwise engaging in criminal conduct”). 285 floyd v. city of new york, 959 f. supp. 2d 540, 558#59 (s.d.n.y. 2013). see friedman, unwarranted, supra note 24, at 140#42, 155#56; 306 colum. j. race & l. [vol. 11:239 was found in 98.5% of the frisks; nearly 90% of people stopped were released without further police action.286 the police targeted black and brown people, in the words of nypd commissioner ray kelly, “to instill fear in them, every time they leave their home, they could be stopped by the police.”287 this is what stop-and-frisk has become today as the result of the supreme court!s abandonment of fundamental fourth and fourteenth amendment principles. stop-and-frisk, employed in this manner, bears a startling resemblance to the vagrancy laws that the fourteenth amendment aimed to stop. the supreme court!s stop-and-frisk jurisprudence beginning with terry has sanctioned intrusive searches and seizures that do not amount to a full arrest. the supreme court has also given the police sweeping powers to arrest individuals without a warrant, even for very minor crimes that do not carry any jail time. in 2001, in atwater v. city of lago vista,288 the supreme court held, by a 5-4 vote, that the fourth amendment permitted the police to make warrantless arrests for minor offenses only punishable by a fine. the police arrested gail atwater for driving without her seatbelt fastened, an offense that was punishable by a fine of $25#50 dollars. the court called the arrest a “pointless indignity,” but nevertheless upheld it, concluding that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the fourth amendment, arrest the offender.”289 atwater exemplifies the modern supreme court!s tendency to treat eighteenth-century common law and practice as dispositive of what constitutes a reasonable search or seizure.290 the court emphasized that, “[d]uring the period carbado, stop and frisk, supra note 9, at 1537#51; meares, supra note 284, at 164#65. 286 floyd, 959 f. supp. 2d at 558#59. 287 id. at 606. 288 532 u.s. 318 (2001). 289 id. at 347, 354. 290 the court has even made common law analysis a mandatory part of the test it used to assess fourth amendment reasonableness, asking “whether the action was regarded as an unlawful search or seizure under the common law when the amendment was framed.” wyoming v. houghton, 526 u.s. 295, 299 (1999). see california v. hodari d., 499 u.s. 621, 624#25 (1991); florida v. 2021] we do not want to be hunted 307 leading up to and surrounding the framing of the bill of rights, colonial and state legislatures, like parliament before them, regularly authorized peace officers to make warrantless misdemeanor arrests.”291 based on this practice, the court concluded that “the fourth amendment, as originally understood,” did not forbid “local peace officers [from] arrest[ing] without a warrant for misdemeanors not amounting to or involving breach of the peace.”292 atwater!s account of framing-era history is, at best, questionable. as thomas davies argues, “[i]f one asks whether there were any framing-era sources that supported unlimited discretionary warrantless arrest authority for even the most minor nonbreach offenses . . . the answer is plainly negative. all the framing-era authorities limited arrest authority to something less"a good deal less"than all nonbreach misdemeanors.”293 atwater!s more significant error was making eighteenthcentury practice the touchstone of constitutional meaning.294 by focusing on the practice in 1791, the majority brushed aside the fourth amendment!s dictate to curb excessive law enforcement discretion. in so doing, the court blessed a truly sweeping power to arrest, even for the most minor offenses. it licensed what the majority called “gratuitous humiliations” and “pointless indignity” and, as the dissent observed, “cloak[ed]” them in the “mantle of reasonableness.”295 white, 526 u.s. 559, 563 (1999); atwater, 532 u.s. at 326#27; nieves v. bartlett, 139 s. ct. 1715, 1726 (2019). for critical commentary on the doctrine, see david a. sklansky, the fourth amendment and common law, 100 colum. l. rev. 1739, 1776#93 (2000) [hereinafter sklansky, fourth amendment]; tracey maclin, let sleeping dogs lie: why the supreme court should leave fourth amendment history unabridged, 82 b.u. l. rev. 895, 955#57 (2002) [hereinafter maclin, sleeping dogs]. 291 atwater, 532 u.s. at 337. 292 id. at 340. 293 thomas y. davies, the fictional character of law-and-order originalism: a case study of the distortions and evasions of framing-era arrest doctrine in atwater v. lago vista, 37 wake forest l. rev. 239, 318 (2002) (emphasis added). 294 maclin, sleeping dogs, supra note 290, at 968 (stressing the need to “distinguish between what the framing generation meant when the fourth amendment was adopted and what the expectations of other legal actors regarding the permissibility of different search and seizure practices were at the time”) (emphasis added). 295 atwater, 532 u.s. at 346, 347; id. at 373 (o!connor, j., dissenting). 308 colum. j. race & l. [vol. 11:239 by beginning and ending its analysis in 1791, atwater gave no consideration to the fourteenth amendment. the framers of the fourteenth amendment were concerned that white police officers were arresting black people for a host of trivial crimes.296 this history weighs heavily against giving police the unfettered authority to arrest for very minor offenses. but, none of that history is discussed or accounted for in the atwater ruling, even though the case involved a warrantless arrest made by a municipal police officer. atwater!s holding would permit arrests for a wide range of extremely minor offenses, giving police officers virtually unbridled discretion to use “a relatively minor traffic infraction” to “serve as an excuse for stopping and harassing” people of color.297 indeed, many aspects of eighteenth-century common law and practice are particularly difficult to square with the fourteenth amendment!s text, history, and values. for example, as david sklansky notes, eighteenth-century search-and-seizure rules on both sides of the atlantic “systematically codified class privilege,”298 such as by allowing general searches to enforce vagrancy laws against poor people,299 who were often dismissed as “pests of society.”300 such rules, of course, did not survive the fourteenth amendment, which promised personal security for all against the backdrop of vagrancy laws that were being employed to stop and seize black people on an officer!s whim. the fourteenth amendment guaranteed “the absolute equality of 296 see report of the joint committee on reconstruction, supra note 138, pt. iii at 8; alexandra natapoff, atwater and the misdemeanor carceral state, 133 harv. l. rev. f. 147, 173 (2020) (“the fourteenth amendment became law in 1868, just as post-bellum southern states were beginning to convert their low-level misdemeanor systems into a massive apparatus aimed at effectively enslaving african americans.”). 297 atwater, 532 u.s. at 372 (o!connor, j., dissenting); devon w. carbado, blue-on-black violence: a provisional model of some of the causes, 104 geo. l.j. 1479, 1489 (2016) (observing that, because of “mass criminalization,” police officers have “mostly unbridled” discretion “to target african-africans, particularly young african-americans in public places”); natapoff, supra note 296, at 164 (explaining that “low-level arrests are a powerful engine of racial discrimination and stratification”). 298 sklansky, fourth amendment, supra note 290, at 1773. 299 id. at 1805 (“peers and members of parliament received special protections against search and seizure, while the homes of the poor were freely inspected for vagrants, poached game and morals violations.”); cloud, searching, supra note 69, at 1719 (“warrantless general searches to round up vagrants and other social $undesirables! were a common social control device in england.”). 300 cuddihy, supra note 25, at 482 (citations omitted). 2021] we do not want to be hunted 309 rights of the whole people, high and low, rich and poor, white and [b]lack.”301 the atwater majority justified creating a sweeping warrantless arrest power by insisting that “a responsible fourth amendment balance” requires “readily administrable rules,” putting the thumb on the scales in favor of increased police authority.302 the court elevated the desire for clear rules over the fourth amendment!s fundamental concerns of ensuring personal security for all. atwater rigged the fourth amendment balancing inquiry in favor of the police. the police officer!s need for clear rules trumped the individual!s right to avoid a pointless seizure that resulted in jail time which could not have been imposed on conviction. as alexandra natapoff observes, “[t]he importance of preserving the carceral police power outweighed everything.”303 atwater!s one-sided version of reasonableness vastly overinflated the government!s interest, slighted a serious deprivation of liberty, and enabled racialized policing. every terry stop-and-frisk or arrest creates the potential for a tragic violent encounter between the police and the populace. as devon carbado writes, this “$front-end! police conduct"which fourth amendment law enables"is often the predicate to $back end! police violence"which fourth amendment law should help to prevent.”304 but fourth amendment law has not been preventing it. instead, in the hands of the supreme court, the fourth amendment has done little to check police violence. the court has erased police violence from our whole constitutional story of policing. the court!s cases have never recognized that ending brutal police violence was at the heart of the fourteenth amendment!s limits on abuse of power by the states.305 301 cong. globe, 39th cong. 1st sess. 1159 (1866); id. at 343 (“[t]he poorest man, be he [b]lack or white, that treads the soil of this continent, is as much entitled to the protection of the law as the richest and proudest man in the land[.]”). 302 atwater, 532 u.s. at 347. 303 natapoff, supra note 296, at 159. 304 carbado, from stopping to killing, supra note 12, at 127. 305 the court!s failure to recognize that ending police violence is a critical part of our constitution!s text and history distorts how the court reasons about police violence. consider, for example the supreme court!s recent decision in torres v. madrid, 141 s. ct. 989 (2021), in which a divided court held that a police shooting of an individual triggers fourth amendment 310 colum. j. race & l. [vol. 11:239 police violence should run afoul of the constitution, but it rarely does because the court!s open-ended test is vague and deferential to the police. in 1989, in graham v. connor,306 the supreme court, in an opinion by chief justice rehnquist, held that “all claims that law enforcement officers have used excessive force” must be “analyzed under the fourth amendment and its $reasonableness! standard.”307 this requires “careful balancing” and recognition that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”308 further, according to the court, “[t]he $reasonableness! must be judged from the perspective of a reasonable officer on the scene,” and “must embody allowance for the fact that police officers are often forced to make split-second judgments"in circumstances that are tense, uncertain, and rapidly evolving"about the amount of force that is necessary in a particular situation.”309 so much for the need for clear rules. the law that governs police violence is a vague and indeterminate mess, requiring courts to “slosh [their] way through the fact bound morass of $reasonableness.!”310 in tennessee v. garner, the court!s first scrutiny even if the individual is not subdued by the shots fired. the majority and dissent disagreed vehemently over how to apply the common law of arrest to a police shooting that the framers of the fourth amendment could have scarcely envisioned. id. at 998 (refusing to “carve out this greater intrusion on personal security” simply because “founding-era courts did not confront apprehension by firearm”). in the dissent!s view, there was no fourth amendment seizure unless the shots fired, in fact, subdue the individual. id. at 1015 (gorsuch, j., dissenting). torres would be an easier case had the court considered that ending unjustified police violence lies at the core of the fourteenth amendment!s protections. the court missed the opportunity to make clear that limits on police violence are deeply rooted in the constitution!s text and history and do not depend on what justice gorsuch called “penumbras of $privacy! and $personal security.!” id. at 1016 (gorsuch, j., dissenting). 306 490 u.s. 386 (1989). 307 id. at 395 (emphasis omitted). 308 id. at 396. 309 id. at 396#97. 310 scott v. harris, 550 u.s. 372, 383 (2007). see also rachel a. harmon, when is police violence justified?, 102 nw. u. l. rev. 1119, 1140 (2008) (arguing that supreme court doctrine provides “almost no direction at all about what constitutes reasonable force”); stuntz, privacy!s problem, supra note 8, at 1043 n.93 (lamenting the lack of “any body of case law that gives this standard some content”); seth w. stoughton, how the fourth amendment frustrates the regulation of police violence, 70 emory l.j. 521, 584 (2021) (arguing that current doctrine “provides little to no guidance to officers about whether and how to use force. the framework it establishes for evaluating officer actions is equally 2021] we do not want to be hunted 311 major excessive force case, the supreme court held that a “police officer may not seize an unarmed, nondangerous suspect by shooting him dead.”311 but, since then, the court!s has essentially replaced garner!s rule with open-ended, ad hoc balancing,312 crafting doctrines specifically designed to give police officers more leeway to engage in wanton violence. the lack of clear rules makes it much more difficult to hold police officers accountable when they engage in violent, unjustified acts.313 the court!s doctrine is a colossal failure, opening the door to systemic police violence, much of it directed against people of color. 2. the rules of the road: how the supreme court sanctioned discretionary and discriminatory policing on the nation!s roadways driving on the open road is a potent symbol of freedom, but the very mobility that we celebrate also allows criminals to get away. rather than striking a sensible accommodation between freedom of movement and crime prevention, the supreme court diluted the fourth amendment!s promise of security on the road, making “driving, or even just being in a car” the “most policed aspect of everyday life.”314 the court has given the police extremely broad power over motorists and their passengers, licensing arbitrary stops and systematic racial profiling of people of color. on the road, the individual!s personal security exists at the whim of the police. virtually anytime they want, the police can stop a car,315 order the driver and passengers out of the car,316 and pressure them into consenting to a further vacuous; the well-known graham factors are of limited analytical value, are not well defined, and are woefully incomplete”). 311 tennessee v. garner, 471 u.s. 1, 11 (1985). 312 scott, 550 u.s. at 383 (“whatever garner said about the factors that might have justified shooting the suspect in that case, such $preconditions! have scant applicability to this case, which has vastly different facts.”). 313 harmon, supra note 310, at 1123 (arguing that “the indeterminate nature of the court!s doctrine leads many unconstitutional uses of force to go uncompensated and undeterred”); stoughton, supra note 310, at 584 (arguing that the court!s fourth amendment doctrine offers “a profoundly flawed framework for regulating police violence”). 314 sarah a. seo, policing the open road: how cars transformed american freedom 12 (2019). 315 whren v. united states, 517 u.s. 806 (1996). 316 pennsylvania v. mimms, 434 u.s. 106 (1977); maryland v. wilson, 519 u.s. 408 (1997). 312 colum. j. race & l. [vol. 11:239 search.317 tragically, these encounters all too often end in brutal police violence.318 because traffic laws are so extensive that practically everyone is violating them some of the time, traffic laws give virtually unfettered authority to the police.319 rather than checking police discretion, the supreme court has given the police a blank check to stop anyone who might have violated a traffic law, no matter how insignificant. on the road, as in the streets, terry looms large. the supreme court has held that, under terry, police may stop a car “when a law enforcement officer has $a particularized and objective basis for suspecting the particular person stopped of criminal activity.!”320 in navarette v. california,321 a patrol officer stopped a pick-up truck on the basis of an anonymous 911 caller!s report. the truck matched the description of a vehicle that, according to the caller, had run her off the road. that was enough, the majority held, to create a reasonable suspicion of drunken driving and justify a terry stop.322 it did not matter that, when police tailed the truck for five minutes, they saw no evidence of drunken driving.323 this is an incredibly broad license 317 ohio v. robinette, 519 u.s. 33 (1996); stuntz, privacy!s problem, supra note 8, at 1064 (describing the court!s doctrine as a “kind of jeopardy rule: if the officer puts his command in the form of the question, consent is deemed voluntary”); george c. thomas iii, terrorism, race and a new approach to consent searches, 73 miss. l. j. 525, 540 (2003) (“the consent search doctrine is the handmaiden of racial profiling. on the street, police can approach young men and ask for consent to search solely on the basis of race.”). 318 seo, supra note 314, at 266 (observing that “nearly a third of police shootings in 2015 began with a traffic stop”); maclin & savarese, supra note 9, at 59 (noting a number of “[b]lack motorists stopped for trivial traffic violations and then killed by police”). 319 sklansky, traffic stops, supra note 9, at 298#99 (“because almost everyone violates traffic rules sometimes, this means that the police, if they are patient, can eventually pull over anyone they are interested in questioning.”); barbara c. salken, the general warrant of the twentieth century?: a fourth amendment solution to unchecked discretion to arrest for traffic offenses, 62 temp. l. rev. 221, 222 (1989) (likening traffic laws to general warrants because “police officers in most states may arrest and search virtually every adult almost at whim”). 320 navarette v. california, 572 u.s. 393, 396 (2014) (quoting united states v. cortez, 449 u.s. 411, 417#18 (1981)); kansas v. glover, 140 s. ct. 1183, 1187 (2020); united states v. arvizu, 534 u.s. 266, 273 (2002). 321 572 u.s. 393. 322 id. at 401#03; id. at 409 (scalia, j., dissenting) (arguing that the 911 call “neither asserts that the driver was drunk nor even raises the likelihood that the driver was drunk”). 323 id. at 403#04 (majority opinion). 2021] we do not want to be hunted 313 to stop, that, as justice antonin scalia argued in dissent, could not be squared with “the framers! [concept]” of “a people secure from unreasonable searches and seizures.”324 all a 911 caller “need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.”325 it is worth remembering that the original rationale for terry was to protect officers from violence. navarette shows how far we have come from that initial justification. officer safety"once the linchpin of terry"is irrelevant to the court!s analysis. terry stops are just one part of a broader story. in a number of cases, the court has used terry!s balancing approach to swell police power, sanction racial profiling, and approve additional departures from the bedrock requirement of probable cause. in 1975, in united states v. brignoni-ponce,326 the supreme court held that federal officers may conduct roving patrols near the mexican border to stop vehicles and question their occupants about their citizenship status without a warrant or probable cause. viewing the stop as a “minimal intrusion” and stressing the “importance of the governmental interest” in stemming illegal immigration, the court held that “when an officer!s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion.”327 incredibly, the court expressly approved race as a relevant factor, turning on its head our most basic constitutional rule of equality. it observed that the “likelihood that any given person of mexican ancestry is an alien is high enough to make mexican appearance a relevant factor,” but it refused to permit “stopping all mexican-americans” to ask for their immigration status.328 a court that took account of our whole constitutional story of race and policing would not allow the police to engage in blatant racial profiling. in 1976, in united states v. martinez-fuerte,329 in yet another expansion of terry, the court held that, at fixed 324 id. at 405 (scalia, j., dissenting). 325 id. at 413. 326 422 u.s. 873 (1975). 327 id. at 881. 328 id. at 886#87; carbado & harris, supra note 9, at 1575 (explaining that brignoni-ponce “authorizes the express utilization of race as a basis for suspicion”). 329 428 u.s. 543 (1976). 314 colum. j. race & l. [vol. 11:239 checkpoints more than 50 miles from the u.s.-mexico border, an officer may stop a vehicle “for brief questioning of its occupants even though there is no reason to believe the particular vehicle contains illegal aliens.”330 martinez-fuerte reasoned that a stop even on something as slight as reasonable suspicion “would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car.”331 in the majority!s view, “the fourth amendment imposes no irreducible requirement of such suspicion.”332 explicitly upholding racebased stops once again, the court was untroubled that stops would be “made largely on the basis of apparent mexican ancestry,” insisting that “border patrol officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.”333 under terry!s balancing regime, every fourth and fourteenth amendment protection can be balanced away. this extremely broad discretion results in systematic racial profiling on our nation!s roads. sadly, this is hardly a new phenomenon. since the early 20th century, black motorists have experienced “traffic stops for minor or fabricated charges that left them terrified” in some cases and “falsely arrested, beaten, or shot” in others.334 in the 1940s, thurgood marshall was almost lynched following a pretextual traffic stop.335 a decade later, in the midst of the montgomery bus boycott, police officers arrested dr. martin luther king for a minor traffic violation in order to intimidate him.336 discriminatory traffic stops remain an enduring problem: as study after study has shown, “racial disparities in traffic stops remain rampant.”337 but according to 330 id. at 545. 331 id. at 557. 332 id. at 561. 333 id. at 563#64; carbado & harris, supra note 9, at 1583 (observing that “because no level of suspicion is required to justify checkpoint stops, and because race is relevant to immigration enforcement, border patrol agents can employ apparent mexican ancestry as the basis for suspicion”). 334 seo, supra note 314, at 183. 335 id. 336 maclin & savarese, supra note 9, at 43#45. 337 id. at 66. see also david a. harris, profiles in injustice: why racial profiling cannot work 72 (2002) (“the data on stops are incontrovertible. the information comes from many cities and involves many different police departments and law enforcement contexts. . . . [a]ll of the data points in the same direction: minorities are stopped, questioned, and searched in numbers far out of proportion to their presence in the driving population. and 2021] we do not want to be hunted 315 the supreme court, pretextual traffic stops pose no constitutional problem. in whren v. united states,338 the police were patrolling a high-crime area when a truck with temporary license plates aroused their suspicions. when the truck made a right turn without signaling, the officers stopped the truck and discovered crack cocaine in whren!s hands. although the traffic stop was pretextual and violated the police department!s own policy, the court unanimously held that it was reasonable under the fourth amendment. the court held that the “constitutional reasonableness of traffic stops” depends on “ordinary, probablecause fourth amendment analysis,” not the “actual motivations of the individual officers involved.”339 across the board, “probable cause to believe the law has been broken $outbalances! private interest in avoiding police conduct.”340 far from constraining the police, probable cause in this context, as tracey maclin writes, operates as “a lever to initiate an arbitrary seizure” and “insulate[] the decision from judicial review.”341 justice scalia!s opinion in whren recognized that, in other contexts, searches and seizures were so invasive of fourth amendment interests that probable cause alone did not make them reasonable. but he saw no constitutional problem in giving police close to unfettered power to stop individuals for traffic violations. whren turned a blind eye to the constitutional imperative of checking police discretion. it ignored that such unchecked discretion inevitably breeds arbitrariness and discrimination. whren!s version of fourth amendment reasonableness, which is supposed to consider all circumstances, it is not their driving behavior or vehicles that account for this.”); stephen rushin & griffin edwards, an empirical assessment of pretext stops and racial profiling, 73 stan. l. rev. 637, 697 (2021) (presenting empirical data demonstrating that “rules granting police discretion in traffic stops may lead to more traffic stops of drivers of color, with some likely escalating to more serious encounters”); john eligon, stopped, ticketed, and fined: the perils of driving while black in ferguson, n.y. times (aug. 6, 2019), https://www.nytimes.com/2019/08/06/us/black-drivers-traffic-stops.html [https://perma.cc/78d6-ppzv]; john sides, what data on 20 million traffic stops can tell us about #driving while black$, wash. post (july 17, 2018, 6:30 pm), https://www.washingtonpost.com/news/monkey-cage/wp/2018/07/17/whatdata-on-20-million-traffic-stops-can-tell-us-about-driving-while-black [https://perma.cc/ea5p-j89g ]. 338 517 u.s. 806 (1996). 339 id. at 813. 340 id. at 818. 341 maclin, fourth amendment, supra note 9, at 377. 316 colum. j. race & l. [vol. 11:239 ignored race entirely.342 whren illustrates the court!s continuing blindness to race, even as it systematically determines who gets policed. justice scalia relegated claims of discriminatory policing to the equal protection clause, even as he ignored the virtually insurmountable hurdles to a successful equal protection claim.343 3. special needs, school searches and seizures, and the school-to-prison pipeline in the streets and on the road, the supreme court has swelled police discretion to search and seize, using a vague, openended balancing test to give the police new powers to enforce criminal laws. in another line of cases, the court has expanded the powers of the government to pursue so-called “special needs”"those beyond the normal needs of law enforcement" without respecting the usual fourth amendment requirements of a warrant, probable cause, or even reasonable suspicion.344 the “special needs” doctrine has transformed policing in school, giving school authorities broad powers to search and seize students, sometimes without any suspicion at all. this has fueled the school-to-prison pipeline and subjected students to a host of intrusive searches and seizures in the name of maintaining law and order.345 unsurprisingly, giving school officials sweeping power to search and seize without probable cause leads to racial profiling, racial disparities in discipline, and consequently, racial disparities in educational opportunities.346 342 id. at 370#71, 375; sklansky, traffic stops, supra note 9, at 329. 343 whren, 517 u.s. at 813; sklansky, traffic stops, supra note 9, at 326 (observing that equal protection doctrine “has developed in ways that poorly equip it to address the problems of discriminatory police conduct”). 344 for discussion, see friedman, unwarranted, supra note 24, at 167#84; eve brensike primus, disentangling administrative searches, 111 colum. l. rev. 254 (2011). 345 barry c. feld, t.l.o. and redding!s unanswered (misanswered) fourth amendment questions: few rights and fewer remedies, 80 miss. l.j. 847, 851 (2011); jason p. nance, students, police, and the school-to-prison pipeline, 93 wash. u. l. rev. 919, 937#39 (2016); alexis karteron, arrested development: rethinking fourth amendment standards for seizures and uses of force in school, 18 nev. l.j. 863, 868#69 (2018). 346 see james forman, jr., children, cops, and citizenship: why conservatives should oppose racial profiling, in invisible punishment: the collateral consequences of mass imprisonment 150, 152#55 (marc mauer & meda chesney-lind eds., 2002) (discussing racial profiling of students by police at schools in washington, d.c.); lia epperson, brown!s dream deferred: lessons on democracy and identity from cooper v. aaron to the #school-to-prison pipeline$, 49 wake forest l. rev. 687, 698 (2014) (discussing 2021] we do not want to be hunted 317 new jersey v. t.l.o.347 initiated this transformation. t.l.o. made the same move as terry: it jettisoned basic fourth amendment concepts of a warrant and probable cause and replaced them with a malleable balancing test that allows judges to trade away the individual!s right to be secure. in t.l.o., a high school assistant principal, who was investigating two girls for smoking in the girl!s bathroom, searched a student!s purse"first for cigarettes, and then for drugs. in upholding the search, the t.l.o. court held that the warrant and probable cause requirements were “unsuited to the school environment,” insisting that “[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a fourth amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.”348 as in terry, t.l.o. held that rummaging through a person!s belongings was a search, but that reasonable suspicion would suffice to justify it. school authorities would be spared “the necessity of schooling themselves in the niceties of probable cause” and permitted to search and seize “according to the dictates of reason and common sense.”349 next, the court validated suspicionless searches of wide segments of the student body. in vernonia school district 47j v. acton,350 decided in 1995 and board of education v. earls,351 decided in 2002, the court held that it was constitutionally reasonable to require all student athletes and students engaged in other competitive extracurricular activities to be tested for drugs. dissenting in vernonia, justice o!connor looked to the fourth amendment!s text and history and concluded that “mass, how “the criminalization of today!s students of color” result in “leav[ing] students” in communities of color “powerless and ill prepared to be active members of a democracy”); evie blad & alex harwin, analysis reveals racial disparities in school arrests, pbs newshour (feb. 27, 2017, 4:09 pm), https://www.pbs.org/newshour/education/analysis-reveals-racial-disparitiesschool-arrests [http://perma.cc/6rwt-v2q2]; german lopez, black kids are way more likely to be punished in school than white kids, study finds, vox (apr. 5, 2018, 8:00 am), https://www.vox.com/identities/2018/4/5/17199810/ school-discipline-race-racism-gao [https://perma.cc/7fzp-9p2q]. 347 469 u.s. 325 (1985). 348 id. at 340#41. 349 id. at 343. 350 515 u.s. 646 (1995). 351 536 u.s. 822 (2002). 318 colum. j. race & l. [vol. 11:239 suspicionless searches have been generally considered per se unreasonable within the meaning of the fourth amendment.”352 but narrow majorities, including the court!s conservative originalists, dismissed the relevance of this history. as justice clarence thomas observed in earls, “we have long held that $the fourth amendment imposes no irreducible requirement of [individualized] suspicion.!”353 in reaching this result, the court!s majorities drew explicitly on past rulings that had permitted suspicionless car stops to enforce immigration laws at the border. one fourth amendment evasion bred another. under t.l.o.!s forgiving standard, students have been subjected to all manner of intrusive, humiliating searches and seizures. in one recent case, a federal court of appeals upheld an officer!s handcuffing of a seven-year-old black child for twenty minutes, insisting that the boy!s unruly behavior justified the use of handcuffs.354 in the court!s view, there was nothing constitutionally unreasonable in treating a little boy as a common criminal simply because he had an emotional outburst at school. even strip searches may be permissible if school officials have a colorable basis for believing that students are hiding drugs in their underwear. in 2009, in safford unified school district v. redding,355 the supreme court held that school officials violated the fourth amendment by searching the bra and underpants of a thirteen-year-old girl for ibuprofen pills. the court did not forbid the strip search of a student, but simply held that “the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts,” and, in redding!s case, there was none.356 indeed, even affording a “high degree of deference” to school officials, there was no reason to think that she was “hiding common painkillers in her underwear.”357 and notwithstanding that, seven justices held that redding!s suit had to be dismissed under the doctrine of qualified immunity because it was not clear how t.l.o. applied 352 vernonia, 515 u.s. at 667 (o!connor, j., dissenting). 353 earls, 536 u.s. at 829 (quoting united states v. martinez-fuerte, 428 u.s. 543, 561 (1976)); vernonia, 515 u.s. at 653. 354 k.w.p. v. kansas city pub. schs., 931 f.3d 813, 826#27 (8th cir. 2019). 355 557 u.s. 364 (2009). 356 id. at 376. 357 id. at 376#77. 2021] we do not want to be hunted 319 to strip searches.358 redding invalidated an obvious abuse of power, but left school officials with a troubling degree of authority. school officials should have reasonable authority to maintain a healthy learning environment for students, but the court!s cases have failed to give due weight to the rights secured by our foundational charter. the court has consistently exaggerated the strength of the governmental interests at stake and trivialized the individual!s right to security, rigging the balancing test to favor the government. an unadorned subjective balancing test is a recipe for inflating the power of law enforcement to search and seize. here, as elsewhere, we need rules that actually check official discretion, limit arbitrary and discriminatory searches and seizures, and ensure some real protection for our right to be secure. b. the erasure of equal protection in whren, justice scalia suggested that those objecting to discriminatory policing should look to the fourteenth amendment!s equal protection clause for relief.359 but that suggestion is hard to accept. the supreme court has all but erased equal protection as a constraint on policing. equal protection, when it comes to policing, no longer protects. the first of the fourteenth amendment!s safeguards to go was the root idea of equal protection: the fourteenth amendment!s command that states equally protect all persons from private violence and other wrongs. in the waning days of reconstruction, the supreme court wrote out of the fourteenth amendment the basic idea that police could not turn a blind eye to private violence directed at black people.360 these rulings left black americans in the south without any protection from klan violence and helped white terrorists undo the gains won during reconstruction. in 1873, in colfax, louisiana, in what eric foner calls the “bloodiest single act of carnage in all of reconstruction,”361 a white mob slaughtered scores of black people, seeking to retake political power by murdering their opposition. three years later, 358 id. at 377#79. 359 whren v. united states, 517 u.s. 806, 813 (1996). 360 see supra text accompanying notes 227#231. 361 foner, reconstruction, supra note 126, at 530. 320 colum. j. race & l. [vol. 11:239 in united states v. cruikshank,362 the supreme court overturned federal convictions of three members of the mob and held that the federal government lacked the power to protect black americans from white terrorists. cruikshank gutted one of the key promises of the fourteenth amendment"the states! constitutional obligation to protect individuals from private violence"and gave the klan and other white terror groups the greenlight to use terror and violence to bring down reconstruction. in the wake of cruikshank, thousands of black people were killed#so was the constitutional concept that states had to protect black and white americans equally from private violence.363 cruikshank held that the fourteenth amendment!s guarantee of equal protection “does not . . . add any thing to the rights one citizen has under the constitution against another.”364 because the murderers were private individuals, the federal government could not intervene. the duty of protection, the court said, “was originally assumed by the states; and it still remains there.”365 the court did not even consider the argument that the federal government was enforcing the guarantee of equal protection by bringing charges in the face of the state!s refusal to bring the killers to justice. in an 1883 sequel, united states v. harris,366 the court dismissed federal charges against r.g. harris and nineteen others for lynching four black men in tennessee. cruikshank and harris permitted unchecked terror, squashed black americans! hopes of freedom, equal citizenship, and equal participation in democracy, and turned a blind eye to the text and history of the fourteenth amendment. the court gave police and prosecutors the power to choose to enforce the law in racially biased ways. the post-reconstruction court eliminated the right to protection and prevented congress from intervening when state governments turned a blind eye to terrorism against black people. the modern court has extended these cases in a series of decisions that have left women unprotected against sexual assault and domestic violence.367 today what is “deep[ly]-rooted” 362 92 u.s. 542 (1875). 363 stuntz, american criminal justice, supra note 1, at 106#17. 364 cruikshank, 92 u.s. at 554#55. 365 id. at 555. 366 106 u.s. 629 (1883). 367 united states v. morrison, 529 u.s. 598, 621#22 (2000); town of castle rock v. gonzales, 545 u.s. 748 (2005) (finding no fourteenth amendment 2021] we do not want to be hunted 321 is not the constitutional duty of protection, but “law-enforcement discretion.”368 the police have the power to pick and choose how they enforce the law. the result is a criminal justice system that has “long failed to place [b]lack injuries and the loss of [b]lack lives at the heart of its response when mobilizing the law.”369 the modern supreme court has made things much worse by essentially erasing the equal protection clause as a constraint on policing. even as the supreme court condemns the stigma and indignity inflicted by state-sponsored racial inequality, its doctrine condones policing practices that leave black and brown americans subject to systematic stops, arrests, and brutal violence.370 the basic problem lies in equal protection doctrine!s requirement of a discriminatory animus or purpose"a standard that dooms virtually all challenges to discriminatory policing because it is so difficult to prove.371 in a number of different contexts, the court has set an incredibly high bar, repeatedly turning away constitutional challenges to discretionary decisions made by law enforcement. in 1987, in mccleskey v. kemp,372 the supreme court, by a 5-4 vote, rejected a death row inmate!s argument that georgia!s administration of the death penalty was racially biased. mccleskey!s lawyers relied on a detailed statistical study, which, controlling for hundreds of variables, demonstrated that the race of the defendant and the race of the victim played a substantial role in determining who lived and who died.373 defendants who killed a white person were more likely to receive the death penalty than those who killed a black person. black persons violation in state police!s refusal to enforce restraining order protecting a woman and her family from her abusive husband). 368 castle rock, 545 u.s. at 761. 369 leovy, supra note 17, at 308. 370 aziz z. huq, the consequences of disparate policing: evaluating stop and frisk as a modality of urban policing, 101 minn. l. rev. 2397, 2455 (2017) (“in glossing the equal protection clause, the court has invoked ideas of racial stigma, racial balkanization, and the dignitary interest in being judged on one!s own merits. and then it has been largely silent about policing.”). 371 sklansky, traffic stops, supra note 9, at 326 (“[c]hallenges to discriminatory police practices will fail without proof of conscious racial animus on the part of the police . . . . [t]his amounts to saying that they will almost always fail.”). 372 481 u.s. 279 (1987). 373 hoag, supra note 231, at 991 (stressing that these disparities reflect systematic “undervaluation of black lives” by multiple actors in the criminal justice system). 322 colum. j. race & l. [vol. 11:239 charged with the murder of a white person were most likely to get the ultimate punishment of death. but the majority brushed aside these findings, insisting that mccleskey needed to show that “racial considerations played a part in his sentence.”374 the fact that mccleskey challenged discretionary decisions, the majority said, demanded a particularly high burden of proof. the court noted, “[b]ecause discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused.”375 in the tug of war between discretion and discrimination, discretion won. equal protection gave way to prosecutors! and juries! broad discretion. in 1996, in united states v. armstrong,376 the court set a high bar for proving an equal protection claim once again. armstrong, indicted on crack cocaine drug conspiracy charges, sought discovery to prove selective prosecution, stressing that every crack case filed by federal prosecutors in the district had been against a black defendant. the court held that armstrong was not entitled to discovery. the “demanding” standard required a showing of discriminatory purpose and that “similarly situated individuals of a different race were not prosecuted.”377 armstrong had to have “clear evidence” that similarly-situated white persons could have been prosecuted, but were not.378 failing that, he could not even obtain discovery. in other words, a criminal defendant cannot get the discovery he needs to prove that he has an equal protection claim unless he can make out a compelling equal protection claim without any discovery. this catch-22 makes such claims a losing proposition.379 whren held open the possibility of an equal protection claim, but, as these cases illustrate, equal protection doctrine is a dead-end under these stringent standards. the difficulty of proving either a racial classification, a discriminatory racial 374 id. at 292#93. 375 id. at 297. 376 517 u.s. 456 (1996). 377 id. at 463, 465. 378 id. at 465 (citation omitted). 379 stuntz, american criminal justice, supra note 1, at 120; cole, supra note 276, at 159; pamela s. karlan, race, rights and remedies in criminal adjudication, 96 mich. l. rev. 2001, 2005 (1998) (describing how the court has “strip[ped] the concept of selective prosecution of virtually any realworld effect”). 2021] we do not want to be hunted 323 purpose, or racial animus makes it incredibly difficult to mount any equal protection claim.380 modern equal protection law is blind to the reality that, due to explicit or implicit bias, police stop, search, beat, and kill people of color based on racial fears and stereotypes.381 current equal protection law offers no tools to eliminate such unconstitutional bias.382 it permits policing based on racial profiling and stereotypes to fester.383 contrast mccleskey and armstrong"in which the court!s incredibly high threshold has allowed discrimination to flourish"with what the court has done in its cases limiting 380 maclin, fourth amendment, supra note 9, at 337 n.22 (calling whren!s treatment of equal protection “hollow”); angela j. davis, race, cops, and traffic stops, 51 u. mia. l. rev. 425, 438 (1997) (detailing that it is often impossible, in the context of pretextual traffic stops, to show that similarly situated whites were not stopped since “[p]olice officers do not keep records of instances in which they could have stopped a motorist for a traffic violation, but did not”); kim forde-mazrui, ruling out the rule of law, 60 vand. l. rev. 1497, 1535#36 (2007) (arguing that “a motorist who was discriminated against would have little chance of proving it” because “the permissibility of pretexual stops and the presumption of good faith accorded police officers would almost always lead a court to credit any race-neutral explanation given for the stop”). 381 khalil gibran muhammad, the condemnation of blackness: race, crime, and the making of modern america xiii (2019 ed.) (“for a century and a half, many of the best and brightest minds in america have produced volumes and volumes of research proving that, on average, white people should be suspicious (and downright fearful) of [b]lack people.”); jennifer l. eberhardt et al., seeing black: race, crime, and visual processing, 87 j. pers. & soc. psych. 876, 876 (2004) (“[j]ust as black faces and black bodies can trigger thoughts of crime, thinking of crime can trigger thoughts of black people . . . .”); richardson, supra note 266, at 2039 (explaining that “[a]s a result of implicit biases, an officer might evaluate behaviors engaged in by individuals who appear [b]lack as suspicious even as identical behavior by those who appear white would go unnoticed”); devon w. carbado & l. song richardson, the black police: policing our own, 131 harv. l. rev. 1979, 1993 (2018) (reviewing james forman jr., locking up our own: crime and punishment in black america (2017)) (“[i]mplicit biases are most likely to influence behaviors and judgments in situations where decisionmaking is highly discretionary, information is limited and ambiguous, and individuals are cognitively depleted. these are the conditions under which most police officers . . . operate on the street.”); steiker, supra note 121, at 840 (discussing “widespread use by police of race as a proxy for criminality”). 382 huq, supra note 370, at 2456 (arguing that “equal protection doctrine . . . provides the moral justifications but not the doctrinal tools for dealing with” stop-and-frisk and other sorts of racialized policing). 383 see karlan, supra note 379, at 2025 (observing that there is no “single other area of current equal protection doctrine in which the court is prepared to assume . . . that [black people] and white [people] differ in a legally cognizable way”). 324 colum. j. race & l. [vol. 11:239 racially discriminatory peremptory strikes in jury selection. in the jury context, the court has had at least some measure of success in enforcing the equal protection guarantee and limiting the unfettered discretion of prosecutors.384 beginning with batson v. kentucky, the court devised a burden-shifting framework that allows a criminal defendant to rely on statistical and other evidence to establish a prime facie case of racial discrimination, and gives them the opportunity to show that the reason offered by the prosecutor for using a peremptory strike was a pretext for discrimination. this framework, while not without its problems,385 helps ensure meaningful enforcement of the equal protection command, responding to the “practical difficulty of ferreting out discrimination in [jury] selections discretionary by nature, and choices subject to myriad legitimate influences.”386 but there is no similar burden-shifting framework in the policing context. under current doctrine, the court has erased the equal protection guarantee as a real constraint on policing. the 2000 case of brown v. city of oneonta387 illustrates the sorry state of equal protection doctrine when it comes to policing. in brown, the police attempted to apprehend a suspect by stopping and questioning every young black man in a small new york town following a break-in and attack in the home of an elderly woman. the woman who had been attacked told the police that she believed that her assailant was a young black man and that he had cut his hand as they struggled. based on this information, police contacted the state university to obtain a list of its black students and then, with the list in hand, conducted a sweep of the entire black community of oneonta, stopping and questioning more than two hundred black persons, including at 384 see, e.g., batson v. kentucky, 476 u.s. 79 (1986); miller-el v. dretke, 545 u.s. 231 (2005); foster v. chatman, 136 s. ct. 1737 (2016); flowers v. mississippi, 139 s. ct. 2228 (2019). as david cole observes, “[v]irtually all the attention the court has paid to race discrimination in criminal justice has been focused on the jury.” cole, supra note 276, at 101. 385 see roberts, supra note 124, at 99 (arguing that batson permits “the continued prosecutorial use of race-neutral pretexts for peremptory challenges in order to produce all-white juries”); sheri lynn johnson, comment, unconscious racism and the criminal law, 73 cornell l. rev. 1016, 1022#23 (1988) (arguing that batson is “flawed by the assumption that merely allowing defendants to challenge the racially discriminatory use of peremptory challenges in individual cases will end the illegitimate use of the peremptory challenge”). 386 miller-el, 545 u.s. at 238. 387 221 f.3d 329 (2d cir. 2000). 2021] we do not want to be hunted 325 least one woman, to examine their hands. the second circuit upheld the racial sweep, holding that the sweep was “raceneutral on its face” because it was based on a “physical description given by the victim of a crime.”388 brown allows the police to stop and harass every member of a town!s black community based on a crime victim!s description. it is difficult to imagine a more vivid demonstration of how little purchase equal protection principles have when it comes to policing. black americans can be stopped en masse, as they have since the days of slavery, in a way that white people never have. this community-wide sweep should have been treated as a racial classification: the police elevated race above all else and subjected the town!s black community to intrusive, intimidating stops to examine their hands for a cut.389 it is unfathomable that the police would have done the same if the suspect had been white. as richard banks observes, “[r]esearch has unearthed not one case anywhere in the united states in which law enforcement authorities conducted a search of comparable scope and intensity for a white perpetrator of a crime against a [b]lack victim.”390 such racial sweeps are race-based state action, but under brown, they warrant virtually no constitutional scrutiny. current doctrine has strayed far from the fourteenth amendment!s text and history. as a result of the court!s cases, the police can stop black suspects more often than they stop white ones, enforce criminal laws more harshly in black neighborhoods than in white ones, and punish crimes that victimize white people more harshly than crimes that victimize black people. the court has blessed policies that reflect that 388 id. at 337. see also monroe v. city of charlottesville, 579 f.3d 380, 382, 389 (4th cir. 2009) (holding that the police did not violate equal protection when they stopped 190 [b]lack men and asked them for dna samples because the stops “did not stem from an explicit government classification”). 389 see brown v. city of oneonta, 235 f.3d 769, 781 (2d cir. 2000) (calabresi, j., dissenting from the denial of rehearing en banc) (urging that sweep was a racial classification because “the police created and acted upon a racial classification by setting aside all but the racial elements in the victim!s description” in order to “stop and question all members of that race they can get hold of”); friedman, unwarranted, supra note 24, at 193; albert w. alschuler, racial profiling and the constitution, 2002 u. chi. legal f. 163, 181#83; r. richard banks, race-based suspect selection and colorblind equal protection doctrine and discourse, 48 ucla l. rev. 1075, 1108#15 (2001). 390 banks, supra note 389, at 1113 (emphasis added). 326 colum. j. race & l. [vol. 11:239 black lives do not matter in the same way white lives do. the promises made in the fourteenth amendment, which was written to end discriminatory policing root and branch, have gone radically unfulfilled. c. no remedies, no rights: the gutting of remedies for police abuse for decades, one of the great debates in fourth amendment law was whether the exclusionary rule was a constitutionally necessary remedy to hold the police accountable or a travesty that let the guilty go free.391 today, the debate continues, but has been eclipsed by an even more important development: there are virtually no remedies for all but the most egregious forms of police abuse. the supreme court has cut down every available remedy. the court has created the doctrine of qualified immunity to close the courthouse doors to individuals seeking damages to redress constitutional violations by the police, making the framers! preferred remedy presumptively unavailable. the court has invented so many exceptions to the exclusionary rule that there is little left of it. and the court!s article iii standing doctrine makes it extremely difficult to seek injunctive relief challenging an unconstitutional police policy.392 these trends, which began during the burger court, have accelerated more recently. converging doctrinal rules have led to the collapse of a system of remedies capable of holding the police to account when they violate the constitution.393 while remedies 391 compare steiker, supra note 121, at 851 (defending the exclusionary rule because it “involves the courts in the ongoing project of developing a detailed body of fourth amendment law” and establishes rules that “the political branches of government would otherwise neglect”), and albert w. alschuler, herring v. united states: a minnow or a shark?, 7 ohio st. j. crim. l. 463, 508 (2009) (calling the exclusionary rule “one of the law!s success stories” because it has “permitted the judicial articulation and reiteration of fourth amendment standards”), with amar, first principles, supra note 77, at 785, 799 (calling the exclusionary rule an “awkward and embarrassing remedy” that “renders the fourth amendment contemptible in the eyes of judges and citizens”). 392 see, e.g., richard h. fallon, jr., of justiciability, remedies, and public law litigation: notes on the jurisprudence of lyons, 59 n.y.u. l. rev. 1 (1984); vicki c. jackson, standing and the role of federal courts: triple error decisions in clapper v. amnesty international usa and city of los angeles v. lyons, 23 wm. & mary bill rts. j. 127, 167 (2014). 393 litman, supra note 20, at 1528; orin kerr, fourth amendment remedies and development of the law: a comment on camreta v. greene and davis v. united states, 2011 cato sup. ct. rev. 237, 254 (discussing the trend 2021] we do not want to be hunted 327 still remain for victims of the most flagrant constitutional violations, for essentially everyone else, there is no remedy to which to turn. this is a system that breeds police unaccountability. without a workable system of remedies, police abuse their authority and get away with it. here, too, the court!s blindness to fourteenth amendment history has produced badly flawed doctrine. by eliminating practically every possible remedy against police abuse of power, the court has widened the power of the police to stop, search, and use violence against people of color. this has exacerbated the flaws in the court!s fourth and fourteenth amendment doctrines. 1. the invention of qualified immunity qualified immunity is not a constitutional rule. rather, it is grounded in the supreme court!s interpretation of section 1983, a federal statute enacted during reconstruction to enforce the fourteenth amendment, which provides a federal cause of action against state actors who violate federal constitutional rights. section 1983, in relevant part, provides: every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state . . . subjects, or causes to be subjected, any citizen of the united states or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in any action at law, suit in equity or other proper proceeding for redress . . . in the several district or circuit courts of the united states.394 the statute does not provide state officials any legal immunity from suit. this reflects the judgment of the reconstruction congress that granting governmental officials immunity from suit improperly “places officials above the law.”395 toward “less law development, fewer remedies, or both . . . . [c]oming from all directions simultaneously”). 394 an act to enforce the provisions of the fourteenth amendment to the constitution of the united states, and for other purposes, ch. 22, § 1, 17 stat. 13 (1871) (codified at 42 u.s.c. § 1983). 395 cong. globe, 39th cong., 1st sess. 1758 (1866). 328 colum. j. race & l. [vol. 11:239 rather than heeding the statute!s unambiguous text, the court has rewritten section 1983 to make it easier for courts to dismiss suits brought against the police and other government officials. the resulting doctrine has eroded the enforcement of constitutional rights, undermined the rule of law, and denied justice to those victimized by the police. the supreme court established the defense of qualified immunity based on the idea that the congress that enacted section 1983 gave “no clear indication” that it “meant to abolish wholesale all common-law immunities.”396 but even at its inception the contours of qualified immunity had nothing to do with the common law. and over time, it has only gotten worse. in 1982, in harlow v. fitzgerald,397 the court, by its own admission, “completely reformulated qualified immunity along principles not at all embodied in the common law” in order to protect public officials from being sued for damages.398 qualified immunity, as applied post-harlow, requires a plaintiff to establish that the officer violated “clearly established . . . constitutional rights of which a reasonable person would have known.”399 in practice, this means that a police officer can only be sued for violating an individual!s constitutional rights if there is a prior case closely on point. the court made up this standard to keep suits against the police and other state actors out of court. as william baude has demonstrated, “there was no well-established good-faith defense in suits about constitutional violations when section 1983 was enacted, nor in section 1983 suits early after its enactment.”400 such a defense is unnecessary because police 396 pierson v. ray, 386 u.s. 547, 554 (1967). 397 457 u.s. 800 (1982). 398 anderson v. creighton, 483 u.s. 635, 645 (1987). see also wyatt v. cole, 504 u.s. 158, 170#71 (1992) (kennedy, j., concurring) (describing how qualified immunity “diverge[s] to a substantial degree from historical standards” based on the “special policy concerns arising from public officials! exposure to repeated suits”). 399 harlow, 457 u.s. at 818. 400 baude, supra note 22, at 55. see also david e. engdahl, immunity and accountability for positive governmental wrongs, 44 u. colo. l. rev. 1, 19 (1972) (discussing the “insistence of nineteenth century courts upon [a] strict rule of personal official liability” and noting that the fact that “an officer personally could be separately liable where the wrong was equally a wrong by the state, is what gave the principal of personal official liability its major importance”); alschuler, supra note 391, at 501 (observing that at the time of the 2021] we do not want to be hunted 329 officers are virtually always indemnified in cases in which they are sued.401 in creating qualified immunity, the court simply turned a blind eye to congress!s decision to create a federal cause of action to enable individuals victimized by state officers to obtain redress in the federal courts. the congress that wrote section 1983 sought to enforce the fourteenth amendment by holding state actors, including the police, accountable for legal wrongs"not give them a free pass. it wanted to vindicate fundamental rights, not immunize officers seeking to deny black americans equal citizenship.402 the reconstruction congress was well aware that throughout the south, state officials, often acting in concert with the ku klux klan, were murdering and terrorizing black people and depriving them of their fundamental rights. the klan, michigan congressman austin blair observed, “are powerful enough to defy the state authorities. in many instances they are the state authorities.”403 members of congress described state officials issuing baseless warrants to arrest black citizens,404 as well as framing of the fourth amendment, “officers who conducted illegal searches and seizures were held strictly liable in damages” and “had no immunity from civil lawsuits”); james e. pfander & jonathan l. hunt, public wrongs and private bills: indemnification and government accountability in the early republic, 85 n.y.u. l. rev. 1862, 1924 (2010) (contrasting qualified immunity with the “antebellum system of government accountability” in which “the courts"state and federal"did not take responsibility for adjusting the incentives of officers or for protecting them from the burdens of litigation and personal liability”). 401 schwartz, supra note 22, at 1804; joanna c. schwartz, police indemnification, 89 n.y.u. l. rev. 885, 890 (2014) (presenting empirical data demonstrating that “[p]olice officers are virtually always indemnified”). 402 see david achtenberg, immunity under 42 u.s.c. § 1983: interpretive approach and the search for the legislative will, 86 nw. u. l. rev. 497, 548 (1992) (criticizing harlow!s “subordinating protection of individual rights” as “utterly inconsistent with the value structure of the 42nd congress”). 403 cong. globe, 42nd cong., 1st sess. app. 72 (1871). see also id. app. at 271 (“in many cases the local officers are in sympathy with the marauders, and in others they are themselves members of the organization.”); id. app. at 108 (“the sheriffs in alamance and some other counties are in the order; the judges can do nothing; the juries are in the way; we can make no convictions.”); id. app. at 182 (“state authorities are in complicity with the criminals, aiding and abetting their lawless violence and of course refusing to call for assistance from the general government . . . .”); foner, reconstruction, supra note 126, at 434 (“much klan activity took place in those democratic counties where local officials either belonged to the organization or refused to take action against it.”). 404 cong. globe, 42nd cong., 1st sess. app. 321 (1871) (describing how, following a “meeting of the citizens . . . to protest against the outrages,” 330 colum. j. race & l. [vol. 11:239 wanton violence by white police officers in which “men were shot down like dogs in the very portals of justice without provocation.”405 representative james platt described a gruesome police shooting at a political rally in norfolk, virginia in which “a policeman, or at least a man in the uniform of a policeman, drew a pistol and deliberately put a bullet through the body of a quiet and inoffensive colored man standing near him.”406 a white mob began indiscriminately shooting and the police force joined in. as representative platt recounted, “the police force was in full sympathy with the murderers, and were themselves emptying their revolvers into the terrified and struggling mass of human beings how were frantically striving to get beyond their range.”407 the systematic denial of fundamental rights merited a remedy. congress exercised its express constitutional power to enforce the fourteenth amendment to create a federal cause of action so that individuals could bring suit in federal court to obtain redress when state officials violated their constitutional rights. the sweeping grant of immunity created by the supreme court turns section 1983 on its head, rewrites its text, and guts the congressional objective to make the fourteenth amendment!s guarantees that safeguard the individual from oppression at the hands of state authorities a reality. the clearly established law requirement in qualified immunity doctrine ignores the context in which the statute was passed. in 1871, the fourteenth amendment was only a few years old and the supreme court had not yet interpreted its sweeping guarantees. the idea that victims of abuse of power would be required to show that those acting under color of law violated clearly established legal precedents would have strangled the statute at birth. the court!s invention of qualified immunity was made possible by its studious blindness to the fourteenth amendment and its history. despite these serious flaws, the roberts court has doubled-down on the doctrine, insisting that qualified immunity permits liability only when “existing precedent” is so clear that the “constitutional question” is “beyond debate.”408 consider “warrants were issued [at the klan!s instigation] for the arrest of peaceable and well-disposed negroes upon the charge of $using seditious language!”). 405 id. app. at 185. 406 id. app. at 184. 407 id. app. at 185. 408 ashcroft v. al-kidd, 563 u.s. 731, 741 (2011). 2021] we do not want to be hunted 331 safford, discussed above, where the court held that school officials had violated the fourth amendment by strip searching thirteen-year-old savana redding, believing that she had stashed common painkillers in her underwear. safford did not break new ground but simply held that “the content of the suspicion failed to match the degree of intrusion.”409 still the school officials got off scot-free because the court claimed that there were “doubt[s] that we were sufficiently clear in the prior statement of law.”410 the upshot is that the discretion-laden standards that the court chooses to employ throughout fourth amendment law simultaneously empower the police and guarantee them immunity when they violate an individual!s right to be secure from unreasonable searches and seizures. rulings such as safford send a message that government officials can act with impunity, even when they engage in outrageous behavior, such as searching a girl!s underwear in the hopes of finding ibuprofen. this pattern has repeated itself again and again. almost every qualified immunity ruling from the roberts court ends in the same way: the police get immunity and cannot be sued.411 in rare instances, the court has found that a constitutional violation is so egregious that no reasonable officer would have countenanced the conduct in question.412 but, by and large, the court has simply been unwilling to permit the police to be subject to liability. the last time the supreme court concluded that a police officer violated clearly established law was in 2004, before john roberts became chief justice.413 indeed, in case after case, the roberts court has summarily reversed rulings denying 409 safford unified sch. dist. no.1 v. redding, 557 u.s. 364, 375 (2009). 410 id. at 379. 411 see, e.g., messerschmidt v. millender, 565 u.s. 535, 539 (2012); plumhoff v. rickard, 134 s. ct. 2012, 2017 (2014); city & cnty. of s.f. v. sheehan, 135 s. ct. 1765, 1769 (2015); district of columbia v. wesby, 138 s. ct. 577, 582 (2018); baude, supra note 22, at 82 (“[n]early all the supreme court!s qualified immunity cases come out the same way"by finding immunity for the officials.”). 412 taylor v. riojas, 141 s. ct. 52 (2020); joanna c. schwartz, qualified immunity and federalism all the way down, 109 geo. l.j. 305, 351 (2020) (observing that “taylor sends the signal to lower courts that they can deny qualified immunity without a prior case on point"a very different message than the court has sent in its recent qualified immunity decisions”). 413 groh v. ramirez, 540 u.s. 551, 563#66 (2004). 332 colum. j. race & l. [vol. 11:239 qualified immunity,414 many in the context of police killings and other violence, by reaching out to decide cases that normally would not merit supreme court review.415 these cases do not clarify the law at all, but just send the message that lower courts should grant qualified immunity across the board. as justice sonia sotomayor has correctly recognized, “[s]uch a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers”416 and “renders the protection of the fourth amendment hollow.”417 2. the hollowing out of the exclusionary rule the exclusionary rule provides that evidence seized by the police in the course of an unconstitutional search of seizure, should be excluded from trial.418 the remedy was born out of the principle that the courts were responsible for holding police officers accountable when they violated constitutional rights in gathering evidence. at its inception, the court viewed the exclusionary rule as “an essential part of both the fourth and fourteenth amendments.”419 over the last thirty years, however, the court has discarded this view. instead, the exclusionary rule depends on a balance of costs and benefits. just as the court has balanced away the requirement of a warrant and probable cause, it has balanced away the exclusionary rule, viewing the costs of the rule as unacceptably high. today, the exclusionary rule survives in name only. in a string of recent rulings, the roberts court has insisted that exclusion is a “last resort”420 and should be used “only when the police misconduct is most in need of deterrence" that is, when it is purposeful or flagrant.”421 thus, “[t]o trigger 414 brosseau v. haugen, 543 u.s. 194, 195 (2014); mullenix v. luna, 136 s. ct. 305, 308 (2015); white v. pauly, 137 s. ct. 548, 551 (2017); kisela v. hughes, 138 s. ct. 1148, 1154#55 (2018); city of escondido v. emmons, 139 s. ct. 500 (2019). 415 baude, supra note 22, at 85 (observing that “only a special dispensation from the normal principles of certiorari explains the court!s qualified immunity docket”). 416 kisela, 138 s. ct. at 1162 (sotomayor, j., dissenting). 417 mullenix, 136 s. ct. at 316 (sotomayor, j., dissenting). 418 exclusionary rule, encyc. brittanica (feb. 27, 2020), https://www.britannica.com/topic/exclusionary-rule [https://perma.cc/2xknexmr]. 419 mapp v. ohio, 367 u.s. 643, 657 (1961). 420 hudson v. michigan, 547 u.s. 586, 591 (2006). 421 utah v. strieff, 136 s. ct. 2056, 2063 (2016). 2021] we do not want to be hunted 333 the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”422 there must be a showing that the “police exhibit[ed] $deliberate,! $reckless,! or $grossly negligent! disregard for fourth amendment rights.”423 as these formulations reflect, the contours of qualified immunity and the exclusionary rule are converging. in both contexts, the roberts court is moving to limit remedies to flagrantly unconstitutional police conduct. most people injured by unconstitutional searches and seizures have no remedy under this regime.424 by making any remedy impossible to obtain, the court has given the police an even freer hand to stop and search people. the court has refused to hold the police accountable even when the police have no legal right to make a stop. this makes terry and whren"doctrines that already allow the police to systematically stop people of color"more harmful. this exacerbates the costs of the court!s erasure of the fourteenth amendment and our whole constitutional story of race and policing. it allows the police to violate the security and dignity of black and brown people on a regular basis with impunity. consider the 2016 case of utah v. strieff,425 in which the supreme court refused to exclude evidence obtained during a suspicionless police stop in which, as the dissent observed, “the officer!s sole purpose was to fish for evidence.”426 after the unlawful stop, the officer ran a warrant check, which disclosed an outstanding traffic warrant that led to strieff!s arrest and the discovery of illegal drugs in his possession. in refusing to exclude the evidence, the court!s majority stressed that the officer had 422 herring v. united states, 555 u.s. 135, 144 (2009). 423 davis v. united states, 564 u.s. 229, 238 (2011) (quoting herring, 555 u.s. at 144). 424 see litman, supra note 20, at 1507 (“[i]f exclusion is not warranted because the officers acted reasonably in light of existing law, then damages would not be available either because the standards for the two remedies have converged.”); alschuler, supra note 391, at 510 (explaining that court!s new doctrinal rules “would require most of the people whom the police have searched and arrested unlawfully to lump it”); kerr, supra note 393, at 255 (arguing that the roberts court is moving “toward limiting the exclusionary rule to the rare instances when police conduct is so egregious that qualified immunity does not apply”). 425 136 s. ct. 2056. 426 id. at 2067 (sotomayor, j., dissenting). 334 colum. j. race & l. [vol. 11:239 committed “good-faith mistakes,” which were “at most negligent.”427 but what the majority described as a good-faith mistake was a complete lack of evidence to justify a stop. the stop was plainly unconstitutional even under the forgiving standards that govern police stops under terry. the officer had seen strieff leave a residence that the police were surveilling. but, the officer had no arguable “basis to conclude that strieff was a short-term visitor who may have been consummating a drug transaction.”428 the majority waved off this clear fourth amendment violation, insisting that, to trigger exclusion, “more severe police misconduct is required than the mere absence of proper cause for the seizure.”429 rather than exclude the evidence, the court validated what was plainly an impermissible seizure, giving the police the greenlight to do it again. as justice sotomayor observed in a powerful dissent, “[t]his case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants"even if you are doing nothing wrong.”430 it “tells everyone . . . that an officer can verify your legal status at any time. it says that your body is subject to invasion while courts excuse the violation of your rights.”431 refusing to remedy such unconstitutional stops effectively enables racialized policing. as justice sotomayor argued, while “anyone!s dignity can be violated” by the police" [i]t is no secret that people of color are disproportionate victims of this type of scrutiny. for generations, [b]lack and [b]rown parents have given their children “the talk”"instructing them never to run down the street; always keeping your hands where they can be seen; do not think of talking back to a stranger"all out of fear of how an officer with a gun will react to them.432 refusing to hold the police accountable when they make suspicionless stops, she explained, “risk[s] treating members of our communities as second-class citizens.”433 by closing the 427 id. at 2063. 428 id. 429 id. at 2064. 430 id. at 2064 (sotomayor, j., dissenting). 431 id. at 2070 (sotomayor, j., dissenting). 432 id. (sotomayor, j., dissenting). 433 id. at 2069 (sotomayor, j., dissenting). 2021] we do not want to be hunted 335 courthouse doors on those victimized by police abuse of power, the supreme court has washed its hands of enforcing the fourteenth amendment!s promise that everyone"no matter their race, no matter where they are from"is entitled to live and enjoy real freedom. 3. barriers to injunctive relief against the police the supreme court has cut back on damages and exclusion as remedies, fearing the consequences if the police are required to pay money judgments or face the loss of critical evidence. what about a remedy that simply tells the police to stop violating the constitution?434 that, too, is off the table. the supreme court has shut down forward-looking relief against unconstitutional police policies, rewriting standing rules to keep those cases out of court as well. this means that individuals cannot go to court to challenge policing policies that victimize people of color. in this way, the court frees itself from having to enforce our constitution!s promise of personal security to all persons regardless of race. in 1983, in city of los angeles v. lyons,435 the supreme court held that adolphus lyons, a young black man who had been subjected to a chokehold during a traffic stop, could not sue to enjoin the city!s chokehold policy, which had led to the killing of sixteen people, almost all black men. in a 5-4 opinion, the majority held that, despite the injuries inflicted on him, lyons could not sue for injunctive relief unless he could show a “real and immediate threat that he would again be stopped . . . by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.”436 this effectively immunized the city!s policy from constitutional scrutiny. as justice thurgood marshall argued in his dissenting opinion, the “court!s decision removes an entire class of constitutional violations from the equitable powers of a federal court.”437 “since no one can show that he will be choked in the future, no one"not even a person who, like lyons, has almost been choked to death"has standing to challenge the 434 stuntz, american criminal justice, supra note 1, at 220 (arguing that “institutional injunctions” might be a “better remedy” for police misconduct). 435 461 u.s. 95 (1983). 436 id. at 105. 437 lyons, 461 u.s. at 137 (marshall, j., dissenting). 336 colum. j. race & l. [vol. 11:239 continuation of the policy.”438 lyons dooms most injunctive suits challenging policing policies.439 vi. conclusion & recommendations this article makes the case for engaging with our whole constitutional story of race and policing by taking seriously the text, history, and values of the fourteenth amendment!s transformative guarantees. more than 150 years after its ratification, we have forgotten a critical part of the fourteenth amendment!s legacy"its limitations on the power of the police designed to ensure liberty, personal security, and equality for all regardless of race. in the aftermath of the civil war, the south sought to strip black americans of the promise of freedom for which they had fought. police broke into the homes of black people and stole their guns and personal property. police aggressively enforced vagrancy laws to stop, seize, and arrest black people, making freedom of movement a sham. police beat and killed black people, while turning a blind eye to crimes and violence committed against them. the fourteenth amendment!s substantive guarantees were a response to these abuses of official authority. it sought to answer the demands of black americans, who asserted, “we do not want to be hunted.” in all these ways, history teaches us that the fourteenth amendment is fundamentally concerned with police abuse, including home invasions, indiscriminate arrest power, and police violence. the supreme court!s collective amnesia about the fourteenth amendment!s text, history, and values has produced a deeply flawed constitutional jurisprudence. the court has allowed the police to continue subjecting people of color to more stops, more searches, and more violence, perpetuating one of the most enduring badges of slavery. we cannot hope to begin the immense task of correcting these errors without understanding and engaging with our whole constitutional story of race and policing. as this article argues, this engagement is essential if we are to revitalize the fourteenth amendment!s project of ensuring true freedom and security, repudiating slavery!s legacy, and securing equal citizenship for all regardless of race. what would it mean for the court to honor the fourteenth amendment!s transformative guarantees and craft 438 id. at 113. 439 kerr, supra note 393, at 244#45; litman, supra note 20, at 1512#13. 2021] we do not want to be hunted 337 doctrine that enforces its promises? this section sketches six ways the court could bring its case law in line with the fourteenth amendment and its history. first, fourth amendment reasonableness should be sensitive, not blind, to race. the police should not be permitted to target people of color for arbitrary, degrading, or humiliating intrusions. discretionary searches and seizures that enable racial profiling should be presumptively unreasonable under the fourth and fourteenth amendment. the fourteenth amendment outlawed the discretionary search and seizure powers that southern governments used to single out black people for intrusive searches and seizures. such discretionary powers were a tool of racial oppression. the supreme court!s doctrine should be organized around the text and history of the fourteenth amendment. this would require major changes to the court!s doctrines governing stop-and-frisk and traffic stops, which license systemic racial profiling, particularly of young black men. terry has already been criticized on originalist grounds for dispensing with the constitutional requirement of probable cause and permitting “police to seize and search in situations when magistrates would be forbidden to authorize an interference with liberty.”440 taking seriously the text and history of the fourteenth amendment adds what is perhaps an even more powerful argument. terry and its progeny invite racially discriminatory searches and seizures just as did the vagrancy laws condemned by the fourteenth amendment. terry enables racial profiling and allows people of color to enjoy freedom of movement and personal security only at the whim of the police. whren, which sanctions racially motivated seizures, should likewise be scrapped. police should not be permitted to use the nearly limitless authority provided by the traffic laws to stop people because of the color of their skin. as james forman argues, pretext stops are a “direct, easily remedied source of racial disparities in the criminal justice system,” which are “responsible for most of the racial disparity in traffic stops 440 thomas, supra note 68, at 1496. see also minnesota v. dickerson, 508 u.s. 366, 381 (1993) (scalia, j., concurring) (observing that, in the absence of a “full-blown arrest,” there was “no clear support at common law for physically searching the suspect”). 338 colum. j. race & l. [vol. 11:239 nationwide.”441 under a view of fourth amendment reasonableness that takes seriously our whole constitutional story of race and policing, pretext stops are constitutionally unreasonable because they permit widespread racial profiling by the police. given the virtually unfettered discretion police enjoy under traffic laws, probable cause to believe a person violated traffic laws should not insulate pretext stops from constitutional scrutiny. second, the court should reconsider its use of the reasonable suspicion standard as a basis to uphold search and seizures. nothing invites discriminatory policing so much as the court!s willingness to apply a porous reasonable suspicion test. where the reasonable suspicion test applies, discrimination is endemic. in the nation!s streets, roads, and schools, the reasonable suspicion standard has allowed the police to accost innocent people and engage in racial profiling. for that reason, “probable cause must be the center of the fourth amendment universe.”442 taking seriously the text and history of the fourteenth amendment!s transformative guarantees complements the literature that urges the court to enforce the constitutional requirement of probable cause, rather than employ invented standards, such as reasonable suspicion, that have no basis in the constitution.443 third, a jurisprudence that takes the fourteenth amendment!s text and history seriously would put an end to unjustified police violence. eliminating such brutality must be regarded as one of the critical purposes of the fourteenth amendment. the court!s current approach to police violence enables police brutality. it is not enough to simply insist that police use force in an objectively reasonable manner. the doctrine must insist that police violence be used only when necessary to respond to an imminent threat, and that the use of force must be 441 forman, supra note 10, at 214, 212. 442 scott e. sundby, an ode to probable cause: a brief response to professors amar and slobogin, 72 st. john!s l. rev. 1133, 1138 (1998). 443 friedman, unwarranted, supra note 24, at 156 (“the constitution says how much cause is appropriate. probable cause.”); sundby, supra note 442, at 1138 (arguing that “probable cause should be the fourth amendment norm from which departures must be viewed as narrow exceptions that require independent justification”); thomas, supra note 68, at 1518 (arguing that courts should require “probable cause for all seizures and for all searches for evidence of crime except searches incident to arrest”). 2021] we do not want to be hunted 339 proportional to the threat.444 we need a standard that reins in police violence and vindicates the fourteenth amendment!s promise of personal security for all persons regardless of race, not one that condones and legitimizes more police shootings and beatings of our populace. fourth, the supreme court should revitalize equal protection doctrine to ensure meaningful limits on discriminatory policing. our constitutional law denounces the “racial stereotype” that black people are prone to violence and criminality as a “particularly noxious strain of racial prejudice.”445 we need a doctrine that takes the fourteenth amendment!s text and history seriously and gives courts the tools to root out conscious and unconscious bias in policing. one way to do this would be to build on the burden-shifting approach the court has used in batson and its progeny. when a plaintiff comes forward with statistical and other proof of systematic racial targeting of people of color by the police, such as a drug courier profile that includes race, the court should shift the burden to the government to rebut the showing that race matters in policing and justify its policing practices.446 as barry friedman writes, “courts should require the government to answer the perennial question under the constitution when one is searched or seized: why me?”447 if race is a factor in policing, strict scrutiny should apply. fifth, the supreme court should recognize that the equal protection clause creates a constitutional obligation on states to protect all persons equally from private violence, and that, where a state fails to do so, the federal government has the authority to step in to provide the protection the fourteenth amendment guarantees. this part of the fourteenth amendment has deep roots in the amendment!s text and history but has never been given its due. the department of justice should play a leading role in helping restore this bedrock aspect of equal protection. federal law explicitly authorizes the department of justice to 444 see harmon, supra note 310, at 1166#83 (discussing concepts of imminence, necessity, and proportionality). 445 buck v. davis, 137 s. ct. 759, 776 (2017). 446 david a. sklansky, cocaine, race, and equal protection, 47 stan. l. rev. 1283, 1318#19 (1995) (urging use of a burden-shifting approach to adjudicate challenges to federal sentencing laws with racially disproportionate impacts). 447 friedman, unwarranted, supra note 24, at 188. 340 colum. j. race & l. [vol. 11:239 bring suit to redress a “pattern and practice” of unconstitutional police misconduct, and pattern or practice suits aimed at underpolicing could provide an opportunity to revitalize this critical aspect of the fourteenth amendment!s guarantee of equal protection.448 sixth, we also need a system of meaningful remedies to redress police overreach. our constitutional commitments are only as good as the remedies that enforce them. in the case of policing, remedies hardly exist, even on paper. this is not our constitution!s system of accountability. if we do not have remedies, we do not truly have rights. we cannot hope to rein in police abuse of power if courts give the police a free pass when they violate our rights. at a minimum, the court should scrap qualified immunity doctrine, which guts the remedy the reconstruction congress enacted to enforce the fourteenth amendment. this would ensure government accountability, permit courts to play their historic role of redressing abuse of power, and shift the focus of policing litigation away from the scope of judicially invented immunities to fundamental constitutional questions about the meaning of our constitution!s safeguards of liberty, security, and equality.449 the killing of george floyd450 has laid bare the yawning chasm between our constitution!s promises and the reality of policing in america. for too long, the courts have failed us, inventing doctrines that are badly out of sync with our constitution!s text, history, and values. as our nation continues to reckon with its tragic history of police violence and racial injustice, so too must the courts. it is long past time for the courts to take seriously the fourteenth amendment!s promise to safeguard personal security, guarantee equal citizenship and put an end to state-sponsored white supremacist violence, and 448 34 u.s.c. § 12601(previously codified at 42 u.s.c. § 14141); deborah turkheimer, underenforcement as unequal protection, 57 b.c. l. rev. 1287, 1310#30 (2016) (discussing suits brought by the department of justice under § 14141 during the obama administration to redress unconstitutional underenforcement by local police departments). 449 joanna c. schwartz, after qualified immunity, 120 colum. l. rev. 309 (2020). 450 emily stewart, george floyd!s killing has opened the wounds of centuries of american racism, vox, https://www.vox.com/identities/2020/5/30/ 21275694/george-floyd-protests-minneapolis-atlanta-new-york-brooklyn-cnn [https://perma.cc/6jh2-jxsb] (june 10, 2020). 2021] we do not want to be hunted 341 rethink flawed doctrines that have permitted police brutality and racialized policing practices to run amok. engagement with the history detailed in this article is essential if we are to revitalize the fourteenth amendment!s limits on police abuse of power and repair our system of constitutional accountability. 342 colum. j. race & l. [vol. 11:239 microsoft word cjrl goncalves article final .docx banished and overcriminalized: critical race perspectives of illegal entry and drug courier prosecutions walter i. gonçalves, jr.* scholarship on illegal entry and drug courier prosecutions fails to apply critical race theory (crt). disregard of how these prosecutions contribute to racial stratification in and outside american prisons or how drug couriers experience intersectionality ignores sociological and cultural processes. criminal justice professionals have racialized the system through implicit biases, but a crt approach to criminal defense can ameliorate this problem. as such, scholars cannot refuse to take notice of crt. jennifer chacón and ingrid eagley have written on illegal entry, describing the convergence of immigration and criminal law. mona lynch and caleb mason have conducted studies on drug couriers, focusing on the selection of cases for prosecution and the market for couriers along the united states-mexico border. these scholars failed to consider how post-colonialism or historical oppression (both crt tools) influence legal processes. their analyses also lack practical implications for defense lawyers. this article uses crt to unpack the historical and contemporary reality of these prosecutions. with this new framework, it describes strategies for the defense lawyer with the aim of mitigating implicit bias, the main source of racial disparity in today’s federal criminal courts. in so doing, it is the first crt investigation of two types of border crimes. it is also * assistant federal public defender, district of arizona. for their editorial help and comments, thank you to michael mayer, molly kincaid (assistant federal public defender, eastern tennessee), edie cunningham (assistant federal public defender, arizona), and those who gave feedback at latcrit 2019 and the clinical law review writers’ workshop (nyu law school), september 2019. thank you also to all incredible editors at the columbia journal of race and law. any errors in this article are all my own. for the continued support, thank you jon m. sands (federal public defender, arizona) and assistant federal public defender supervisors in arizona: leticia marquez (supervisor tucson), vicki brambl (trial unit supervisor, tucson), and eric rau (trial unit supervisor, tucson). 2 columbia journal of race and law [vol. 10:2 the first to describe a race-conscious criminal defense practice within the context of crt. i. introduction ................................................................... 3 ii. existing scholarship on illegal entry and drug courier prosecutions ............................................................ 7 a. illegal entry ................................................................... 7 1. fast-track programs .................................................... 8 2. operation streamline (osl)...................................... 10 3. pre-trial violations and sentencing problems ............ 13 4. illegal entry and crimmigration ................................ 15 b. drug couriers ............................................................... 18 1. impact of harsh punishment ..................................... 19 2. proposals to reduce punishment ............................... 21 3. sociological and economic studies of drug couriers along the united states-mexico border ........................... 24 i. the market for couriers ........................................ 24 ii. selection of drug cases for prosecution ................ 26 iii. sentencing rationales ............................................. 27 iii. illegal entry and drug couriers as sites for crt analysis ................................................................................ 29 a. crt perspectives of illegal entry ................................. 30 1. mistreatment of latinxs ............................................ 30 2. revisionist history of illegal entry ........................... 36 3. post-colonialism ....................................................... 41 b. prosecution of drug couriers through a crt lens ...... 47 1. intersectionality ........................................................ 47 2. revisionist history of federal drug laws ................. 50 3. impact of harsh drug courier punishment ................ 57 4. drug courier prosecutions maintain racial stratification .................................................................... 59 iv. a crt-based approach to lawyering can reduce the negative influence of implicit bias for criminal defendants ........................................................................... 62 a. initial appearance ........................................................ 65 no. 10:2] banished and overcriminalized 3 b. detention hearing ........................................................ 66 c. preliminary hearing ..................................................... 68 d. disclosure review ........................................................ 71 e. voir dire ...................................................................... 71 f. opening statement ....................................................... 74 g. closing argument ........................................................ 75 h. sentencing .................................................................... 78 v. conclusion ................................................................. 80 i. introduction illegal entry1 and drug courier2 prosecutions are the most prevalent cases brought in the federal criminal courts.3 although latinxs4 only represent seventeen percent of the united states population,5 they constitute the majority of defendants charged 1 people charged with illegal entry include those recently apprehended by the border patrol shortly after entering the united states from mexico by either crossing the border wall, outside a port-of entry, or illegally present in the united states after deportation. see infra section ia. 2 drug couriers are people charged with possession with intent to distribute, importation, and conspiracy to commit any of these crimes. drug couriers include not only people who transport drugs across the u.s. mexico border in vehicles, but also body carriers and marijuana backpackers who cross through the desert without papers. body carriers enter the united states as passengers in commercial airplanes as well. police also arrest couriers after they have entered the united states, transporting drugs within and across state lines. in this article, analysis focuses on importation of drugs in cars through the u.s.mexico border unless otherwise specified. 3 see american civil liberties union, fact sheet: criminal prosecutions for unauthorized border crossing (2018), https://www.aclu.org/other/operationstreamline-issue-brief. immigrants may also be charged with fraud or misuse of official documents, such as passports or visas under 8 u.s.c § 1546. combined, immigration and drug crimes have become the most federally prosecuted offenses. 4 of, relating to, or marked by latin american heritage—used as a genderneutral alternative to latino or latina. merriam webster’s dictionary (last visited mar. 23, 2020), https://www.merriam-webster.com/dictionary/latinx. 5 latinx account for roughly 17.4% of the general population yet make up 34% of incarcerated individuals. state and county quickfacts, u.s. census 4 columbia journal of race and law [vol. 10:2 under these statutes.6 this sordid reality would be less alarming if latinx defendants did not experience disparate treatment in all phases of the criminal process because of implicit biases among prosecutors, judges, defense lawyers, and probation and pre-trial service officers.7 the criminal justice system has failed to address the biases of these professionals, so most are ignorant of the impact of race on litigation. this lack of knowledge facilitates a colorblind8 approach that permits racial biases to influence how professionals make decisions from bail to sentencing.9 in my experience, public defenders with many clients, unaware of the negative influence of implicit racial and ethnic bias, spend less bureau (dec. 2, 2015), http://quickfacts.census.gov/qfd/states/00000.html [https://perma.cc/s4ca-vz3u]. i acknowledge that the border patrol arrests many latinxs charged with illegal entry as they enter or recently enter the united states from mexico. as such, the u.s. census may not consider them part of the u.s. population for this comparison. 6 see united states sentencing commission, overview of federal criminal cases fiscal year 2016 6 (may 2017) (over half (50.8%) of all drug offenders convicted in federal court were latinx, while black offenders constituted 23.6 percent of all drug offenders, and white offenders were 22.8 percent of all drug offenders). see also u.s. sentencing commission, overview of federal criminal cases fiscal year 2017 10 (june 2018) (although united states citizens committed the majority of all federal crimes (59.3%) in fiscal year 2017, the overwhelming majority (90.4%) of immigration offenses were committed by non-citizens). 7 see jonathan a. rapping, implicitly unjust: how defenders can affect systemic racist assumptions, 16 n.y.u. j. legis. & pub. pol'y 999, 1006-09 (2013) (describing how prosecutors, judges and defense attorneys contribute to a system where the race of the defendant plays an important role in determining case outcomes). 8 see dorothy e. roberts, foreword: abolition constitutionalism, 133 harv. l. rev. 1, 77 (2019) (citing eduardo bonilla-silva, racism without racists: color-blind racism and the persistence of racial inequality in the united states 3 (2003)) (colorblind theory argues that because society has conquered racism and people of color and white people have full equality, social policies should not take account of race.). 9 see jerry kang et al., implicit bias in the courtroom, 59 ucla l. rev. 1124, 1135 (2012) (explaining that implicit biases have an important impact during criminal investigation, arrest, bail, plea bargaining, trial, and sentencing). no. 10:2] banished and overcriminalized 5 time meeting with a latinx or african american client at a detention facility compared with a white client. likewise, trial judges, unaware of implicit racial bias’s pernicious impact on sentencing or bail decisions, speak in harsher tones and use more disparate words to describe latinxs compared to caucasian criminal defendants. to help alleviate this problem, this article analyzes concepts of critical race theory (crt) by applying them to illegal entry and drug courier prosecutions.10 it then proposes strategies to help the lawyer practice in a way that reduces implicit racial and ethnic bias.11 as crt scholars have yet to tackle federal crimes such as illegal entry and drug trafficking, the article contributes to a new body of crt research involving latinxs and border crimes.12 10 this article analyzes illegal drug couriers and illegal entrants together for myriad reasons. first, although illegal entrants and drug couriers are arrested everywhere in the country, most of these prosecutions take place in the southwestern part of the united states (southern california, arizona, new mexico, and south texas). second, most defendants are latinxs. third, based on my anecdotal observations, individuals who commit these crimes share common economic motivations to commit these crimes. illegal entrants enter the united states to seek a better life for themselves and their families by working and remitting money to mexico or central america. drug couriers agree to transport drugs for financial reasons. most are of low socio-economic strata, working factory, blue-collar, or other low-paying jobs. fifth, both share low criminal culpability. most drug couriers are on the lowest rung of a drug organization, fulfilling the task of only driving or transporting drugs from point a to point b. most have no other function and no knowledge of the workings of any drug organization. illegal entrants are not part of any criminal organization. sixth, both form the bulk of caseloads for criminal federal courts along the united states-mexico border. seventh, and perhaps most important for the thesis of this article, defendants from both groups are increasingly imprisoned before being banished from the united states. the exceptions are united states citizen drug couriers, but they are a minority. 11 implicit biases are the most prevalent way racial stereotypes perpetuate inequality. i encourage criminal defense lawyers to become aware of crt perspectives so they can apply a race-conscious approach to law practice. 12 see infra part ii subsections a & b. existing scholarship addresses how illegal entry fits within the broader process of crimmigration through examining the convergence of criminal and immigration law. this scholarship 6 columbia journal of race and law [vol. 10:2 the process of overcriminalization and banishment began in the early part of the twentieth century, when the federal government first created illegal entry and drug laws. it climaxed in the early 2000s with the drug war and in the early twenty-first century with the advent of crimmigration, the merging of criminal and immigration law.13 these historical processes contributed to implicit biases present today.14 the thesis of the article is that the criminal justice and immigration systems overcriminalize and then banish15 illegal entrants and drug couriers from the united states, despite their relatively low level of criminal threat and responsibility. part i highlights points of focus in the existing literature on illegal entrants and couriers pertinent to the article’s investigation. although certain researchers focus on race, it is never a central part of their analyses. part ii articulates new ways of understanding these cases through the lens of crt.16 armed with aims to understand legal problems arising from the advent of fast-track programs. scholars of drug prosecutions address how law enforcement select and thereby racialize drug couriers for prosecution. they have also studied the rationale for drug courier sentencing and the market for couriers along the u.s.-mexico border. finally, existing scholarship proposes amendments to the federal sentencing guidelines and a misdemeanor alternative to reduce excessive punishment. 13 see john schmitt et al., the high budgetary cost of incarceration, ctr. for econ. & pol'y research 7-9 (2010), available at http://www.cepr.net/ index.php/publications/reports/the-high-budgetary-cost-of-incarceration/ 14 one example of how inaccurate information leads to implicit bias is how gross estimation of black and latinx crimes rates led to implicit bias amongst law enforcement and the general public. nazgol ghandnoosh, race and punishment: racial perceptions of crime and support for punitive policies, the sentencing project 13-17 (2014). 15 see padilla v. kentucky, 559 u.s. 356, 373 (2010) (quoting delgadillo v. carmichael, 332 u.s. 388, 391 (1947) (in contemporary criminal jurisprudence, the term deportation is “the equivalent of banishment or exile.”)). 16 the article applies the following crt analytical tools: revisionist history and contemporary racial mistreatment of subjugated groups; legal history and disparate enforcement of laws; the racial impact of imprisonment; postcolonialism; intersectionality; and how imprisonment maintains racial no. 10:2] banished and overcriminalized 7 this theoretical background, part iii proposes new, crt-based ways for defense lawyers to litigate these cases so the system can minimize racial disparities. ii. existing scholarship on illegal entry and drug courier prosecutions in order to enhance understanding of a crt way of thinking about illegal entry and drug couriers, this part describes important areas of existing scholarship in these prosecutions. the defense lawyer, judge, or prosecutor cannot appreciate a crt approach without a general idea of the lay of the land. a. illegal entry illegal entry prosecutions are violations of 8 u.s.c. § 1325. as used in this article, the term “illegal entry” also encompasses illegal re-entry under § 1326 unless otherwise specified. under § 1325, the crime of physical entry without inspection at a port of entry, avoiding examination or inspection, or making false statements while entering or attempting to enter is a misdemeanor punishable by fine, up to six months in prison, or both. under § 1326, unlawfully re-entering or attempting to re-enter the country after having been deported, ordered removed, or denied admission is a felony punishable up to two years in prison. if an entrant has prior convictions, the maximum sentence could be ten or twenty years. physical presence in the united states, unlike illegal entry, is not a criminal offense.17 overstaying a visa is likewise not a crime.18 stratification. i selected these analytical methods because they best fit the topic. it would be difficult to study illegal entry prosecutions from the perspective of interest convergence because there is no convergence of interests between subjugated latinxs and american elites in the adjudication of illegal entry and drug courier cases. other tools within crt, such as how these prosecutions perpetuate microaggressions, are open areas for future research. 17 arizona v. united states, 567 u.s. 387, 407 (2012). 18 see should overstaying a visa be considered a federal crime instead of a civil offense? (oct. 29, 2016), available at https://immigration.procon.org/ questions/should-overstaying-a-visa-be-considered-a-federal-crime-vs-acivil-offense/ 8 columbia journal of race and law [vol. 10:2 most illegal entry defendants face “fast-track” prosecutions as part of the operation streamline (osl) program. “fast-track” creates problems for migrants because of the speed with which the system expects guilty pleas. on the other hand, any illegal entry defendant, fast track or otherwise, may face fourth and fifth amendment violations. the typical defendant also faces hurdles at pre-trial release and sentencing. the scholarly discussion of these topics is part of crimmigration. 1. fast-track programs the development of “fast-track” increased the speed with which courts process defendants and decreased incentives to go to trial.19 the standard deal under a fast-track plea agreement requires that the defendant accept the plea before the deadline for indictment.20 this pre-indictment timeline generally requires the defendant to plead guilty within two weeks or less.21 in exchange for sentencing concessions, defendants must waive their rights to grand jury indictment, jury trial, discovery, a full presentence report, constitutional challenges, and appeal.22 consequently, fast-track cases plead within days, as migrants want the system to release them quickly. this decreases the number of trials.23 the high speed of fast-track forces prosecutors, judges, and defense lawyers to spend less time on cases.24 defense attorneys 19 see michael e. horowitz & april oliver, foreword: the state of federal prosecution, 43 am. crim. l. rev. 1033, 1034-35 (2006). 20 see albert llosas barrueco, fast-tracking united states v. booker: why judges should not fix fast track disparities, 6 conn. pub. int. l.j. 65, 109 (2006) (citing united states sentencing commission public hearing on implementing the requirements of the protect act 1012 (sept. 23, 2003), http:// www.ussc.gov/hearings/9_23_03/9_23_03.htm (statement of marilyn l. huff, j., s.d. cal.)). 21 see ingrid v. eagly, prosecuting immigration, 104 nw. u. l. rev. 1281, 1322 (2010). 22 id. 23 see horowitz & oliver, supra note 19, at 1035. 24 id. no. 10:2] banished and overcriminalized 9 have little time to conduct ethically required case investigations.25 this leads to increasing numbers of innocent clients pleading guilty. for instance, clients may have been born in the united states without knowing it, or be derivative citizens because a father or mother was born in the united states. there may also have been due process violations in their underlying immigration case, which would allow for a collateral attack of the underlying reentry prosecution.26 defense lawyers are unable to investigate this information within the time limits set in a fast-track plea offer.27 fast-track prosecutors are not traditional united states attorneys, but border patrol lawyers who do not extend negotiable plea offers.28 with the exception of osl, border patrol prosecutors prosecute only civil immigration cases for immigration and customs enforcement (ice). they work out of agency offices, do not have the same level of oversight as assistant united states attorneys, and are less willing to engage in the give-and-take of criminal pleabargaining.29 in my experience as a lawyer representing migrants under osl, border patrol prosecutors make plea decisions based solely on the immigration or criminal history of the accused, and seldom take into consideration mitigating factors. the only way to negotiate a better plea, a core defense function, is to convince the 25 see césar cuauhtémoc garcia hernández, creating crimmigration, 2013 byu l. rev. 1457, 1478 (2014) (noting that criminal defense attorneys who advise clients about the best course of action without engaging in thorough investigation of the relevant law and facts would seem to deny these defendants the right to effective assistance of counsel provided by the sixth amendment). 26 8 u.s.c. §1326(d) allows for a collateral attack of an underlying deportation order for the charge of re-entry after deportation. this is a way for courts to dismiss re-entry felony deportation charges under 8 u.s.c. 1326. 27 fast track cases are mostly resolved within 10 days of the initial appearance. see eagly, supra note 21, at 1324. 28 see id. at 1332. this author’s experience in the tucson sector in the district of arizona is that all fast-track plea offers are non-negotiable. 29 id. (citing joanna lydgate, cassembly-line justice: a review of operation streamline, chief justice earl warren inst. 15 (jan. 2010), http://www.law.berkeley.edu/files/ operation_streamline_policy_brief.pdf). 10 columbia journal of race and law [vol. 10:2 prosecutor that an error took place in applying plea bargain policies. worse, these prosecutors do not disclose the content of these policies. 2. operation streamline (osl) (osl) started in 2005.30 today, as it did at its outset, osl tries to adopt a “zero-tolerance” approach to unauthorized border crossing.31 osl clients are mostly mexicans or central americans who attempt to enter the united states for work, reunite with family32, or both.33 if the suspect was previously deported and reenters, the government will charge a felony34 and a misdemeanor.35 the vast majority of osl defendants plead guilty to the misdemeanor count, ranging from thirty to 180 days in custody depending on the number of voluntary departures, removals, deportations, or criminal history. researchers estimate that osl generates approximately eighty prosecutions per day per district.36 30 see fernanda santos, detainees sentenced in seconds in “streamline” justice on border, n.y. times (feb. 11, 2014), https://nyti.ms/1fwyviu [https://perma.cc/e8ln-kwtc]. 31 see u.s.: reject mass migrant prosecutions, hum. rts. watch (july 28, 2015), https://www.hrw.org/news/2015/07/28/us-reject-mass-migrantprosecutions. “although the program was originally touted as a ‘zerotolerance’ program, the border patrol sectors in which operation streamline is currently active have differing policies as to which unauthorized migrants should be criminally charged and which should go through the usual administrative removal process.” id. 32 family in this article includes not only a heterosexual family unit, but also homosexual, bisexual, single-parent, children with parents in prison, and extended families. 33 see joanna jacobbi lydgate, assembly-line justice: a review of operation streamline, 98 calif. l. rev.. 485 (2010) 34 see 8 u.s.c. § 1326. the maximum penalty is two years but can increase to 20 years if the person has a prior aggravated felony or other criminal history. 35 see 8 u.s.c. § 1325. the maximum penalty for this misdemeanor is 6 months. 36 see lydgate, assembly-line justice: a review of operation streamline, supra note 33, at 483 (there are eight border districts participating in the osl no. 10:2] banished and overcriminalized 11 osl radically changed immigration prosecutions.37 before this change, when border patrol agents apprehended a migrant crossing for the first time, dhs either voluntarily returned her to her home country or administratively detained and processed her through the civil immigration system.38 the united states attorney’s office usually saved prosecutions only for migrants with criminal records and for those who made repeated attempts to cross the border.39 osl “removed that prosecutorial discretion, requiring the criminal prosecution of all border crossers, regardless of their prior history.”40 since its creation in 2005, osl prosecutions focus on those arrested trying to cross for the first time.41 despite these efforts, prosecutors are limited to a daily quota of prosecutions per day.42 further, as a matter of policy, program; del rio, texas; yuma, arizona; tucson, arizona; las cruces, new mexico; el paso, texas; laredo, texas; brownsville, texas; and mcallen, texas.). 37 see generally id. (“operation streamline has fundamentally transformed u.s. border enforcement practices. before streamline began, when dhs's border patrol agents apprehended a migrant attempting to cross the border unlawfully for the first time, dhs either voluntarily returned that migrant to her home country or administratively detained her and processed her through the civil immigration system. the u.s. attorney's office (usao) usually saved prosecution for migrants with criminal records and for those who made repeated attempts to cross the border. operation streamline removed that prosecutorial discretion, requiring the criminal prosecution of all border crossers, regardless of their prior history,”) 38 id. 39 id. 40 see id. at 484. 41 see operation streamline, grassroots leadership (last visited mar. 27, 2020), http://grassrootsleadership.org/operationstreamline. (“operation streamline, a policy begun in 2005, mandates that nearly all undocumented immigrants crossing the southern border in certain areas be prosecuted through the federal criminal justice system, a departure from previous practices when most immigration cases were handled exclusively within the civil immigration system.” ) id. 42 see joshua partlow, under operation streamline, fast-track proceedings for illegal immigrants, wash. post (feb. 10, 2014), https://www.washington 12 columbia journal of race and law [vol. 10:2 the border patrol does not refer for the prosecution of juveniles, persons with certain health conditions, and others who require prompt return to their country of origin for humanitarian reasons.43 osl has no deterrent impact on the number of migrant crossings, but the government relies on deterrence principles to continue the program.44 the decrease in apprehensions that started in the year 2000 is more than likely a result of the falling united states economy, not osl.45 alternative explanations for the decrease include the increasing number of human smugglers, technology, and physical barriers by the border patrol46 to prevent both illegal entry and drug smuggling.47 osl negatively affects other areas of the justice system. for example, some believe osl leads immigrants to pay smugglers, a strategy likely to decrease chances of apprehension by the border patrol.48 osl also leads to increases in fraud cases because migrants show up at the border with fake documents or documents belonging to others who sold them on the black market.49 further, osl channels law enforcement resources toward the apprehension and prosecution of low-level offenders, post.com/world/the_americas/under-operation-streamline-fast-trackproceedings-for-illegal-immigrants/2014/02/10/87529d24-919d-11e3-97d3f7da321f6f33_story.html (daily osl prosecutions have a capacity of 70 people in tucson). 43 lydgate, assembly-line justice: a review of operation streamline, supra note 33, at 484 n.14. 44 id. at 517. 45 id. at 516. 46 fact sheet, u.s. dep't of homeland sec., secure border initiative (nov. 2, 2005), http://www.druglibrary.org/ schaffer/govpubs/gao/pdf23.pdf. 47 see border control: revised strategy is showing some positive results, u.s. gen. acct. off. 12-15 (1994), https://www.gao.gov/products/ ggd-95-30. 48 see lydgate, assembly-line justice: a review of operation streamline, supra note 33, at 517. 49 id. no. 10:2] banished and overcriminalized 13 rather than on criminals who create border violence.50 during osl’s first several years, as immigration prosecutions increased nationwide, white collar, weapons, organized crime, public corruption, and drug prosecutions decreased.51 osl also places a burden on state court systems because they handle the overflow of cases that federal prosecutors must decline because of high misdemeanor immigration caseloads.52 3. pre-trial violations and sentencing problems it is common for border patrol agents to question migrants while in custody without first explaining miranda warnings and for judges to permit these admissions during trial.53 as one judge explained, field interrogation “did not amount to a practice the agents should know was reasonably likely to elicit an incriminating response.”54 “in so ruling, the court relied explicitly on the organizing principle of institutional autonomy: administrative immigration agents are ‘merely fact finders’ who have ‘no discretion regarding whether or not the defendant will be prosecuted or subjected to administrative proceedings.’”55 illegal entry prosecutions also lead to fourth amendment violations that judges have refused to suppress for trial.56 district courts have moved the functional border into the homes of 50 see id. at 520. 51 solomon moore, push on immigration crimes is said to shift focus, n.y. times (jan. 12, 2009), http://www.nytimes.com/2009/01/12/us/12prosecute.html? _r=1&hp=&pagewanted=all. 52 see lydgate, assembly-line justice: a review of operation streamline, supra note 33, at 543. 53 see eagly, supra note 21, at 1310 (citing united states v. lugo, 289 f. supp. 2d 790, 791-92 (s.d. tex. 2003)). 54 id. 55 id. at 1310. 56 id. 14 columbia journal of race and law [vol. 10:2 previously deported aliens.57 they have concluded that the law strips defendants in illegal reentry prosecutions of any fourth amendment protections at the time of their previous deportation.58 in an extreme example, a district judge in kansas refused to suppress evidence found in a warrantless search of an undocumented defendant’s private residence, characterizing him as a “trespasser” or “squatter” in his own home.59 bail is another problem for migrants charged with illegal entry.60 although courts detain eighty-one percent of those charged with drug trafficking after arrest and eighty-seven percent of those charged with violent crimes, courts detain a full ninety-five percent of those who have committed immigration crimes (which are largely nonviolent and most often misdemeanors) upon arrest.61 the bail reform act does not permit courts to consider alienage in release decisions.62 on the other hand, if a judge states a reason aside from status for denying pre-trial release, it is impossible to know for sure if the decision had anything to do with immigration.63 undocumented crossers also face problems at sentencing. the formal understanding of the criminal system is that courts 57 id. 58 id. 59 see id. at 1313. 60 see jennifer m. chacón, overcriminalizing immigration, 102 j. crim. l. & criminology 613, 632 (2012) (citing bureau of justice statistics, u.s. dep't of just., fed. just. stat. 1 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/fjs09.pdf). 61 id. 62 united states v. chavez, 536 f. supp. 2d 962, 968 (e.d. wis. 2008) (fact that defendant is illegal alien does not prevent court from considering release); united states v. hernandez, 2012 wl 1034942, at *3 (d. kan. 2012) (fact that ice says it will likely deport defendant if released on bail not dispositive; not for court to reconcile ice and prosecutor’s interests). 63 see eric brickenstein, making bail and melting ice, 19 lewis & clark l. rev. 229, 244 (2015) (“courts’ consistent and seemingly unquestioning willingness to consider immigration status in the flight risk calculus is dubious given the significant statutory arguments against it.”). no. 10:2] banished and overcriminalized 15 must sentence all defendants based on neutral factors.64 however, emerging evidence suggests that courts hold noncitizens to a different standard.65 for example, “[a]ccording to a study released in 2009, noncitizens convicted in the federal system are far less likely to be sentenced to alternative sentences (such as probation) than are citizens.”66 a recent study also found that federal judges have been four times more likely to impose imprisonment for convicted noncitizens than for citizens, even after accounting for sentencing guidelines and criminal histories.67 after sentencing, migrants face problems both when they arrive in prison and when the bureau of prisons releases them to ice for deportation. once the “deportable alien” designation is made, noncitizens are subject to conditions that increase the severity of punishment. the bureau of prisons assigns all deportable aliens to facilities with higher security levels.68 undocumented immigrants are also unable to participate in drug rehabilitation programs like the residential drug abuse program (rdap).69 further, ice houses defendants in immigration custody after the completion of their criminal sentence. the system thus punishes migrants more severely, as courts often do not credit immigration custody time in criminal cases.70 4. illegal entry and crimmigration 64 see ashlin carter quirk, application of federal sentencing guidelines to aliens. united states v. restrepo, 999 f.2d 640 (2d cir. 1993)., 8 geo. immigr. l.j. 129, 129 (1994) (alienage is only considered in few cases at sentencing such as immigration crimes). 65 see michael t. light et al., citizenship and punishment: the salience of national membership in u.s. criminal courts, 79(5) am. soc. rev. 827 (2014) (finding that “citizenship status is a salient predictor of sentencing outcomes[,] more powerful than race or ethnicity” and this citizenship effect has grown over time). 66 see eagly, supra note 21, at 1317. 67 see light, supra note 65, at 837. 68 see eagly, supra note 21, at 1318. 69 id. 70 id. 16 columbia journal of race and law [vol. 10:2 illegal entry prosecutions form part of a larger process called crimmigration, or “the intersection of criminal and immigration law.”71 scholar juliet stumpf coined the term,72 which refers to the criminal prosecution of migrants, a process that began to take place in the united states in 1954 with operation wetback and has continued to today.73 through crimmigration, the united states not only criminalizes undocumented migrants, but also removes them from the country through the civil system.74 crimmigration scholarship is diverse and aims to understand how criminal and immigration law work together. it includes the study of immigration detainers75 by local (non-federal) law enforcement, mass incarceration of undocumented persons because of arrests for misdemeanors,76 the use of the immigration laws by 71 see yolanda vázquez, exclusion: perpetuating the marginalization of latinos: a collateral consequence of the incorporation of immigration law into the criminal justice system, 54 how. l. j. 639, 671 (2011) (listing the many issues that both communities and individuals face in communities against whom crimmigration is practiced). 72 see juliet stumpf, the crimmigration crisis: immigrants, crime, and sovereign power, 56 am. u. l. rev. 367, 376 (2006). 73 see yolanda vázquez, constructing crimmigration: latino subordination in a “post-racial” world, 76 ohio st. l.j. 599, 621-22 (2015) (discussing the repatriation of mexican immigrants and their forcible removal during “operation wetback,” which began in 1954). 74 see generally jacqueline hagan et al., the effects of u.s. deportation policies on immigrant families and communities: cross-border perspectives, 88 n.c. l. rev. 1799 (2010) (noting that deportation undermines family reunification, the cornerstone of stated u.s. immigration policy). 75 see christopher n. lasch, preempting immigration detainer enforcement under arizona v. united states, 3 wake forest j.l. & pol'y 281, 305 (2013) (noting that ice's current guidance authorizes a detainer under many circumstances in which a prisoner is charged with or has been convicted of a misdemeanor). 76 see allegra m. mcleod, the u.s. criminal-immigration convergence and its possible undoing, 49 am. crim. l. rev. 105, 130 (2012) (describing instances in which criminal law becomes “an immigration regulation proxy”). no. 10:2] banished and overcriminalized 17 local police to extend the arm of the federal government,77 osl,78 and other areas.79 crimmigration scholarship examines the ways the two systems interact rather than viewing them as separate institutions with entrenched doctrinal divisions.80 this focus reveals that the civil immigration and criminal justice systems are a single intertwined regulatory bureaucracy that moves between criminal and civil enforcement mechanisms in a manner that blurs and reshapes law enforcement power, prosecutorial incentives, and the aims of criminal law.81 77 see katherine beckett & heather evans, crimmigration at the local level: criminal justice processes in the shadow of deportation, 49 l. & soc'y rev. 241, 245-46 (2015) (discussing how the arrest and detention trends of immigrants in king county, washington mirror the biases against immigrants across the united states); jennifer m. chacón, managing migration through crime, 109 colum. l. rev. 135, 135-36 (2009) (characterizing actions of 1980s and 1990s as evidence that “u.s. government has increasingly handled migration control through the criminal justice system”). 78 see generally doug keller, re-thinking illegal entry and re-entry, 44 loy. u. chi. l.j. 65 (2012); eagly, supra note 21; lydgate, supra note 33; katharine brink, neglecting due process rights of immigrants in the southwest united states: a critique of operation streamline, 89 u. det. mercy l. rev. 315 (2012). 79 see rachel e. rosenbloom, policing sex, policing immigrants: what crimmigration's past can tell us about its present and its future, 104 calif. l. rev. 149, 152 n.6 (2016) (noting that a few key crimmigration works include daniel kanstroom, aftermath: deportation and the new american diaspora (2012); césar cuauhtémoc garcía hernández, creating crimmigration, 2013 byu l. rev. 1457, (2014); stephen h. legomsky, the new path of immigration law: asymmetric incorporation of criminal justice norms, 64 wash. & lee l. rev. 469, 472 (2007); juliet stumpf, the crimmigration crisis: immigrants, crime, and sovereign power, 56 am. u. l. rev. 367, 376 (2006)); see also social control and justice: crimmigration in the age of fear (maria joão guia et al. eds., 2013) (multidisciplinary collection examining the convergence of immigration law and criminal law enforcement in the united states, canada, and europe)). illegal entry scholarship forms only a small part of crimmigration. 80 see eagly, supra note 21, at 1359. 81 id. at 1288. 18 columbia journal of race and law [vol. 10:2 in order to justify crimmigration, the government unfairly portrays migrants as increasingly responsible for crime and terror within our borders.82 the rhetoric used to justify programs like osl painted migrants as the cause of crimes and as threats to the nation and community.83 it is now a commonplace belief that the government removes noncitizens from the united states, especially latinxs, because they are “dangerous criminals” who threaten national security and public safety.84 in reality, most “criminal” aliens deported only have minor records. in 2008, for instance, north carolina placed thousands of noncitizens in removal proceedings because of 287(g) agreements.85 fifty-eight percent of motorists in alabama stopped by a specific police officer based upon 287(g) were latinxs.86 at the time, latinxs made up two percent of the state’s population.87 b. drug couriers scholarship on drug couriers has focused mainly on harsh punishment and its impact on children, family visitation, and loss of visas. several authors have proposed ways to ameliorate this 82 see vázquez, supra note 71, at 661. 83 id. 84 id. 85 287(g) is a program that allows state and local agencies to act as immigration enforcement agents. under 287(g), ice forms an agreement with a state or local agency, most often a county sheriff that runs a local jail. this agreement delegates specific immigration enforcement authority to designated officers within the local agency. see national map of 287(g) agreements, immigrant legal res. ctr. (nov. 27, 2019), https://www.ilrc.org/national-map-287gagreements. section 287(g) became law as part of the illegal immigration reform and immigrant responsibility act of 1996 (iiraira). through the 287(g) program, state and local police officers collaborate with the federal government to enforce federal immigration laws. see the 287(g) program: an overview, am. immigration council (aug. 23, 2019), https://www.americanimmigrationcouncil.org/research/287g-programimmigration. 86 id. 87 id. no. 10:2] banished and overcriminalized 19 punishment. lastly, a body of sociological and economic research described the market for couriers and how their prosecution in arizona differs from other districts in the nation’s interior in case selection and sentencing rationales. 1. impact of harsh punishment low-level drug couriers as a whole are more likely to face imprisonment compared to those higher in the drug pyramid.88 the sentencing guidelines and “tough on crime” laws passed during the 1980s and 1990s populated prisons with couriers and lower-level offenders, not kingpins.89 this increased incarceration has had a discriminatory effect on low-level couriers because they face mandatory punishments that vastly exceed their culpability.90 higher-level drug dealers, on the other hand, are seldom arrested and remain largely untouched.91 as most couriers are not fluent english speakers, incarceration is more difficult for them due to language barriers.92 drug couriers’ prolonged incarceration negatively influences their children. first, compared to children of parents untouched by the criminal justice system, children of incarcerated parents are five times more likely to end up incarcerated themselves.93 as women represent a significant percentage of 88 see adam b. weber, the courier conundrum: the high costs of prosecuting low-level drug couriers and what we can do about them, 87 fordham l. rev. 1749, 1790 (2019). 89 id. 90 id. 91 id. 92 see jessica m. kelder et al., rehabilitation and early release of perpetrators of international crimes: a case study of the icty and ictr, 14 int'l crim. l. rev. 1177, 1190 (2014) ( “[l]anguage barriers cause problems such as difficulties in understanding prison regulations, inability to participate in work or education programmes, or problems in communicating with other prisoners, prison staff or the outside world.”). 93 weber, supra note 88, at 1772 n.195 (citing stephanie bush-baskette, the war on drugs and the incarceration of mothers, 30 j. drug issues 919, 923 20 columbia journal of race and law [vol. 10:2 couriers, an increasing number of children go without their mothers’ personal care.94 the same applies for fathers. in all, the absence of a father or mother due to incarceration is detrimental for any child. visitation, a way to ameliorate some of the negative effects of parental incarceration on children, is difficult for families that live in the united states, but even more so for those that live in other countries.95 federal prisons are often located hundreds of miles from inmates’ families.96 whereas a family has relatively easy access to a prison two or three hours by car from the united states-mexico border, visiting a family member transferred to a non-border state makes visitation incredibly (2000) (“discussing the negative impacts of parental incarceration on children . . . .”). 94 see lynn m. paltrow, the war on drugs and the war on abortion: some initial thoughts on the connections, intersections and the effects, 28 s.u. l. rev. 201, 241-42 (2001) (noting that women in prison leads to the separation of children from their mothers and bodes ill for the next generation). 95 see amy b. cyphert, prisoners of fate: the challenges of creating change for children of incarcerated parents, 77 md. l. rev. 385, 390-91 (2018) (describing the many obstacles children of incarcerated parents face both during and after their parent's period of incarceration). see also joseph murray & david p. farrington, the effects of parental imprisonment on children, 37 crime & just. 133, 135 (2008); dorothy e. roberts, the social and moral cost of mass incarceration in african american communities, 56 stan. l. rev. 1271, 1284 (2004) (children can experience antisocial behavior, future offending, drug abuse, school failure, and unemployment.). 96 see safia fasah, pat-downs but no hugs: why prison visitation protocol should be changed to help keep familial structures intact, 56 fam. ct. rev. 135, 138 (2018) (citing bureau of justice statistics special report, njc 182335, incarcerated parents and their children (2000)) (on average, they are imprisoned over 100 miles away from their homes and families). according to the bureau of prisons website, “the bureau attempts to designate inmates to facilities commensurate with their security and program needs within 500 driving miles of their release residence. if an inmate is placed at an institution that is more than 500 driving miles from his/her release residence, generally, it is due to specific security, programming, or population concerns.” see designations, fed. bureau of prisons (last visited mar. 23, 2020), https://www.bop.gov/inmates/custody_and_care/designations.jsp. no. 10:2] banished and overcriminalized 21 difficult for those with little funds to afford travel. the bureau of prisons determines the facility in which an inmate serves her sentence.97 the bureau of prisons may not provide certain information to the public.98 certain tourist visas also prohibit travel outside a certain mileage from the border.99 in areas outside the border region, non-english speakers may face difficulties communicating with largely non-bilingual prison staff.100 this makes visitation with family members even more difficult. a federal drug conviction has consequences for the entire family. it not only suspends the visa of the drug courier, but also those of her immediate family. this prevents them from entering the country for any purpose. under these circumstances, family visitation for those living abroad becomes impossible. 2. proposals to reduce punishment 97 see designations, fed. bureau of prisons, supra note 96. (“upon sentencing in federal district court, the bureau of prisons has the sole responsibility in determining where an offender will be designated for service of his/her sentence in accordance with program statement 5100.08, inmate security and custody classification manual.”). 98 id. “although general information regarding the designation or transfer process may be provided, specific information about a particular inmate is not public information and may not be released via the telephone or internet. this information may only be obtained by submitting a written request with an original authorization form signed by the inmate. due to security requirements, certain information, such as an inmate's pending designation site and/or transfer date, will not be released to anyone even if an original authorization form is provided.” id. 99 see travel to the usa, new mexico border authority (last visited mar. 23, 2020), http://www.nmborder.com/travel_to_the_usa.aspx. “mexican citizens who already have a visa and are planning to travel to the united states beyond the border area and/or for longer than 30 days, must obtain an i-94 permit at the port-of-entry from a customs and border protection officer. in new mexico, an i-94 is required for travel beyond 55 miles from the border. the fee for an i-94 permit is us$6.” id. 100 see lorena o’neil, the rising need for bilingual corrections officers, ozy (feb. 7, 2014), https://www.ozy.com/acumen/the-rising-need-for-bilingual corrections-officers/5996/. 22 columbia journal of race and law [vol. 10:2 in response to severe punishment, scholars have proposed modifications to the united states sentencing guidelines. the changes proposed by adam weber and kevin lerman go a long way toward improving sentencing for low-level drug couriers.101 to decrease lengthy sentences for low-level couriers, adam weber proposed the creation of a misdemeanor charge.102 a person could qualify for a misdemeanor based on criteria common to low-level drug couriers. the criteria asks whether the defendant 1) received a small, flat fee payment versus a percentage of profits; 2) delivered drugs one way and did not deliver money in return; 3) received a prepackaged bag; 4) delivered the package to a previously unknown individual; 5) negotiated the terms of the sale; and 6) owned or financed the drugs involved.103 kevin lerman104 proposed five amendments to the sentencing guidelines as a potential remedy. they are the following: • the first amendment would add a provision to allow role-based mitigating reductions for couriers, mules, and even streetlevel dealers.105 this amendment would be easier to address on appeal. it would clearly define “courier” and “mule.”106 if facts support a determination that a defendant is a courier, it is 101 see weber, supra note 88, at 1790; kevin lerman, note, couriers, not kingpins: toward a more just federal sentencing regime for defendants who deliver drugs, 7 u.c. irvine l. rev. 679, 682 (2017). 102 weber, supra note 88, at 1749. 103 id. at 1787. 104 lerman, supra note 101, at 694. mr. lerman openly endorses these amendments: “[t]he guidelines should be amended to address the kingpinlength sentences received by many low-level couriers and mules . . . .” id. 105 id. at 682. 106 id. no. 10:2] banished and overcriminalized 23 more likely that a circuit court would reverse a district court’s role-reduction denial.107 • a second amendment is to the role cap, or §2d1.1(a)(5). it would ensure its deployment for all “relatively low level trafficking functions, [who] have little authority in the drug trafficking organization, and have a lower degree of individual culpability (e.g., ‘mules’ or ‘couriers’ ... )”.108 this modification is best accomplished by extending § 2d1.1(a)(5) to all drug-trafficking defendants who do not qualify for an aggravating role.109 • the third amendment is to § 2d1.1(b)(5). under this provision, if a drug-trafficking organization recruits a courier or mule defendant to transport methamphetamine and the court denies a mitigating role adjustment, the offense level increases by two levels.110 the united states sentencing commission should amend this guideline such that defendants who receive an aggravating role adjustment only have an increase of two points if convicted of importation of methamphetamine.111 • lerman’s fourth proposal is to amend the guidelines “to clarify that a lack of aberrancy should not foreclose mitigating role reductions.”112 107 id. at 705. 108 id. 109 id. 110 id. at 708 (citing u.s. sentencing guidelines manual § 2d1.1(b)(5) (u.s. sentencing comm'n 2016) [hereinafter u.s.s.g.]). 111 id. 112 id. at 711. 24 columbia journal of race and law [vol. 10:2 • the final amendment adds unequivocal language to the mitigating role guideline to “[d]isavow [i]ndispensability [d]eterminations.”113 3. sociological and economic studies of drug couriers along the united states mexico border social scientists have studied drug courier prosecutions along the united states-mexico border. caleb mason and david bjerk conducted the first empirical analysis of the economics of border smuggling into the united states.114 mona lynch studied the discretionary process of drug case selection in arizona and contrasted it with non-border districts.115 professor lynch also studied the sentencing rationales of marijuana backpacking cases in arizona.116 i. the market for couriers caleb mason and david bjerk conducted the first large-scale empirical analysis of the economics of border smuggling into the united states.117 they documented every border drug arrest in california ports of entry between 2006 and 2010, noted the type of drug, weight, and how much the courier agreed to be paid (although this was not possible to accurately document in every case).118 113 id. at 712. 114 see david bjerk & caleb mason, the market for mules: risk and compensation of cross-border drug couriers, 39 int'l rev. l. & econ. 58 (2014). 115 see mona lynch, prosecutorial discretion, drug case selection, and inequality in federal court, 35 just. q. 1309, 1318 (2018). 116 see mona lynch, backpacking the border: the intersection of drug and immigration prosecutions in a high-volume court, 57 brit. j. criminology 112, 114 (2015). 117 see bjerk & mason, supra note 114, at 58. 118 id. at 60. no. 10:2] banished and overcriminalized 25 the following are major conclusions of the study: ● annually, federal agents arrest roughly 3,000 “while working as ‘mules’ smuggling drugs through the ports of entry along the united statesmexico border in california, arizona, new mexico, and texas.” for every mule caught, many more get through.119 ● drug organizations pay mules “between one and two thousand dollars for a day’s work—a daily wage in excess of the average wage rates on either side of the border.”120 ● drug mules are “outside of the drug retail operation and not looking to ‘work their way up’ within the organization.”121 ● the illegal and unregulated labor market for drug couriers “behaves in a manner consistent with basic economic theory of competitive markets . . . [w]age differentials appear to arise for otherwise similar work that involves higher risk— in this case longer expected incarceration associated with being caught with the load carried.”122 ● “[t]he likelihood of detection at the border is [supposedly] roughly 7.5%.”123 ● mules are generally knowledgeable about what they carry.124 ● “[c]ompetitive forces lead to a compensating wage premium paid to those carrying higher risk loads.”125 119 id. at 58. 120 id. at 70. 121 id. 122 id. 123 id. 124 id. 125 id. 26 columbia journal of race and law [vol. 10:2 ii. selection of drug cases for prosecution mona lynch studied how drug prosecutions in the district of arizona differ from those in northeastern, southeastern, and midwestern districts.126 arizona has one of the largest criminal caseloads in the nation.127 the majority of cases involve immigration-related violations, but drug defendants constituted thirty-three percent of nearly 6,900 defendants charged in 2012.128 the bulk of these drug cases resulted from border enforcement efforts.129 this differed markedly from other districts, both in number of cases and enforcement efforts.130 in arizona, law enforcement initiates fewer drug investigations.131 most drug cases arise from stops at ports of entry or marijuana backpackers arrested walking across the border.132 in non-border districts, drug cases arise from proactive investigations.133 these differences arise from the fact that most prosecutions in the southwestern divisions result from border immigration enforcement as opposed to preplanned agent investigations.134 prosecutors in the southwest, but in non-border districts, “select drug cases as a combined function of ideologies about crime and violence (including racialized ones) and the 126 see lynch, prosecutorial discretion, drug case selection, and inequality in federal court, supra note 115, at 1309. 127 id. at 1316. 128 id. 129 id. 130 id. at 1318. 131 id. at 1327. 132 id. 133 id. at 1331. border bust cases constitute a load of drugs interdicted at a port of entry between the united states and mexico. see caleb mason & david bjerk, inter-judge sentencing disparity on the federal bench: an examination of drug smuggling cases in southern california, 25 fed. sent. r. 190, 190 (2013). 134 see id. at 1330–31. no. 10:2] banished and overcriminalized 27 incentives that attend producing and prosecuting drug cases . . . .”135 “[i]n southwestern [districts], prosecutors were primarily case processors, with much less room to assert discretion in choosing to prosecute or not.”136 although the racial composition of couriers in arizona is polarized (almost nine out of every ten defendants are latinx), there is less perceived racial bias in prosecutorial selection.137 iii. sentencing rationales in a 2017 journal article about sentencing, lynch found that marijuana backpacker prosecutions in arizona resemble criminal immigration cases.138 this contradicts tenets of crimmigration suggesting the opposite.139 “[t]he prevailing adjudicatory logic” at marijuana backpacker sentencing focuses on “defendants’ status as unauthorized outsiders,” as they are “barely distinguishable from immigration defendants” in how their sentences are calculated and rhetorically justified.140 in arizona, the emphasis on excluding non-citizen marijuana backpackers arose from the process of moving these offenses to “flip-flop” status.141 as flip-flops, defendants plead 135 id. at 1333. 136 id. 137 id. at 1330. 138 see lynch, supra note 116. lynch argues that the logic of immigration enforcement subsumes more traditional federal drug law enforcement— characteristics of drug cases more closely resemble immigration cases. 139 id. at 115-16. crimmigration scholars argue that federal prosecutors and courts overcriminalize immigration practice. the opposite happens in arizona, where the executive and the courts overcriminalize policy so that the immigrant status of drug defendants rather than criminal status drives the adjudicatory logic and practice. 140 id. at 113. 141 id. at 126. flip-flops are cases selected for a rapid-resolution, or a mass processed mode. prosecutors charge defendants charged with illegal entry, fraud, and marijuana with a “mixed complaint” that includes both a felony and a misdemeanor charge. prosecutors offer defendants a misdemeanor conviction and a particular sentencing outcome, totaling less than 360 days of 28 columbia journal of race and law [vol. 10:2 guilty to simple possession of marijuana, not possession for distribution.142 at flip-flop sentencings, judges do not focus on the crime of backpacking marijuana despite the fact that the government charged these individuals with drug crimes.143 instead, judges pay attention to the individual’s immigration history, the number of apprehensions by border patrol, and removals from the united states.144 the sentencing discourse emphasizes remaining in mexico and past illegal entries.145 courts and prosecutors mainly attempt to resolve these cases by finding a way to keep backpackers “out of the country.”146 in contrast, non-border districts punish undocumented drug defendants for dealing drugs as much as for entering the united states with illegal narcotics.147 judges and prosecutors base adjudicatory narratives in most regions on the drug offense as an act, whether it signified “individual weakness or inherent evil,” extreme “poverty, gang and gun involvement or social failures.”148 incarceration in exchange for an immediate guilty plea prior to receiving discovery, a waiver of all rights and a waiver of the full-blown sentencing procedure. the decision as to whether prosecutors route a case to the flip-flop route or regular felony case depends on the drug courier’s criminal history. 142 id. at 141. (“the remaining defendants, all men, were there to plead guilty to marijuana possession in exchange for dismissal of the possession with intent to distribute felony charge.”) 143 id. at 128 (“[t]he flip-flop backpackers merely carried illicit drugs but were otherwise indistinguishable from the other men and women picked up in the same desert.”). 144 id. at 113 (“in both sets of cases, how the case is adjudicated depends largely upon the past, primarily the defendant’s prior documented history in the united states, and considers the future in devising strategies that foremost aim to keep the defendant out of the country.”). 145 id. at 124 (“[s]entencing pronouncement[s] clearly reveal[] how this is not a case about drug dealing, but about illegal immigration.”). 146 id. at 113. 147 id. at 117. 148 id. no. 10:2] banished and overcriminalized 29 iii. illegal entry and drug couriers as sites for crt analysis149 crt is a diverse intellectual movement150 that includes myriad analytical tools.151 it rejects the tenet that race relations 149 crt started in the mid-1970s, when scholars realized that the civil rights struggle of the 1960s had stalled and that government and courts began to roll back many of its gains. see richard delgado & jean stefancic, critical race theory: an annotated bibliography, 79 va. l. rev. 461 (1993). scholars and activists believed that an understanding and coming to grips with the interplay of race, racism, and american law required new tactics and theories. they became frustrated with the liberal response that accepted the premise that race consciousness amounted to racism and that too often argued for race-conscious remediation as temporary, exceptional, and aberrational within an otherwise neutral legal frame. see cheryl i. harris, critical race studies: an introduction, 49 ucla l. rev. 1215, 1220 (2002). 150 see devon carbado, critical what what?, 43 conn. l. rev. 1593, 1607 (2011). 151 see id. (interest convergence); tanya kateri hernandez, “multiracial discourse”: racial classifications in an era of color-blind jurisprudence, 57 md. l. rev. 97, 139 (1998) (critique of colorblindness); delgado & stefancic, supra note 149, at 462 (critique of liberalism and storytelling/counter storytelling); richard delgado & jean stefancic, part iv: structural determinism, in critical race theory: the cutting edge 213 (richard delgado & jean stefancic eds., 2d ed. 2000) (structural determinism); kimberlé crenshaw, demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics, 1989 u. chi. legal f. 139, 140 (intersectionality of race, sex, and class); catharine a. mackinnon, keeping it real: on anti“essentialism,” in crossroads, directions, and a new critical race theory 71, 74 (francisco valdes, jerome mccristal culp & angela p. harris eds., 2002) (essentialism and anti-essentialism); john o. calmore, critical race theory, archie shepp, and fire music: securing an authentic intellectual life in a multicultural world, 65 s. cal. l. rev. 2129, 2228 (1992) (cultural nationalism or separatism); daniel g. solorzano & tara j. yosso, maintaining social justice hopes within academic realities: a freirean approach to critical race/latcrit pedagogy, 78 denv. u. l. rev. 595 (2001) (legal institutions, critical pedagogy, and minorities in the bar (“in this article, we merge the critical pedagogical work of paulo freire with the critical race and latcrit frameworks . . . .”); eden b. king et al., discrimination 30 columbia journal of race and law [vol. 10:2 in the united states have a history of linear uplift and improvement.152 crt provides a counter-narrative to the dominant and ever-popular story about race and law that suggests that the struggle for racial justice, though long and incremental, is nevertheless forward-moving, progressive, and triumphant. instead, it points out the stagnation of racial progress because of the continuity of underlying structures of white supremacist thought, operation, and social arrangements, accomplished through new and changing forces of rationalizations.153 in order to understand illegal entry, subsection a applies the history of subjugated groups, revisionist history of illegal entry laws, and post-colonial theory. to analyze drug couriers, subsection b applies intersectionality, revisionist history of federal drug laws, and the impact of harsh punishment on children. the section ends by arguing that these processes maintain racial stratification within the federal criminal justice system. the application of these crt tools and analyses articulates new ways of understanding illegal entry and drug courier prosecutions. a. crt perspectives of illegal entry 1. mistreatment of latinxs the mid to late nineteenth century saw america expand its rule over land and peoples west of the mississippi river.154 white american expansionists encountered land already owned and occupied by mexico, which had just become independent in the 21st century: are science and the law aligned?, 17 psychol. pub. pol'y & l. 54, 56 (2011) (study of microaggressions). 152 see carbado, supra note 150, at 1607. 153 see athena d. mutua, the rise, development and future directions of critical race theory and related scholarship, 84 denv. u.l. rev. 329, 358– 59 (2006). 154 see generally coy f. cross, go west young man: horace greeley's vision for america (1995). no. 10:2] banished and overcriminalized 31 from spain.155 in 1848, through the treaty of guadalupe hidalgo, the united states gained parts of mexico now known as california, texas, new mexico, arizona, utah, and colorado.156 in the 1890s, it won the war against spain and claimed temporary control of cuba and colonial authority over guam, puerto rico, and the philippine islands.157 in 1898, there was expansion into the caribbean and the pacific ocean.158 these new acquisitions meant america also gained control of many latinx populations.159 during american expansionism through manifest destiny and worldwide colonialism, the “[b]elief in anglo-saxon superiority provided the ‘logical’ conclusion that whites were destined to rule . . . the world.”160 these settler and expansionist perceptions came from rigid european constructions of racial hierarchy that viewed latinxs and native americans in the southwest as animalistic—less than fully human.161 people described mexicans as a “mongrel race.”162 they labeled them “lazy, ignorant, 155 see westward expansion, history (last visited mar. 23, 2020), https://www.history.com/topics/westward-expansion. 156 see otis a. singletary, the mexican war 160-62 (1960); treaty of guadalupe hidalgo, history (oct. 2, 2019), http://www.history.com/topics/ treaty-of-guadalupe-hidalgo. 157 see singletary, supra note 156. 158 id. 159 see tom i. romero, ii, the "tri-ethnic" dilemma: race, equality, and the fourteenth amendment in the american west, 13 temp. pol. & civ. rts. l. rev. 817, 827 (2004). 160 see vázquez, supra note 73, at 611 (citing reginald horsman, race and manifest destiny (1981) (discussing that the belief that whites were superior to all other races was deeply held in the united states by 1800)). 161 see horsman, supra note 160, at 210. “while the anglo-saxons were depicted as the purest of the pure—the finest caucasians—the mexicans who stood in the way of southwestern expansion were depicted as a mongrel race, adulterated by extensive intermarriage with an inferior indian race.” id. 162 id. 32 columbia journal of race and law [vol. 10:2 vicious, and dishonest.”163 latinxs and their “mixed”164 race took on a subordinated status, and society treated those with more indigenous or black characteristics even harsher.165 the discrimination was so ingrained that it persists to the present day in mainstream and even minority cultures.166 after the united states seized control of the west in the nineteenth century, whites lynched latinxs167 because they saw them as a threat to the “american way of life.”168 they lynched mexicans not only in border states like texas, new mexico, arizona, and california, but as far away as colorado, nebraska, oklahoma, oregon, kentucky, louisiana, montana, and 163 see vázquez, supra note 73, at 613 (citing waddy thompson, recollections of mexico 6, 23, 187, 239 (1846)). 164 see cheryl i. harris, whiteness as property, 106 harv. l. rev. 1707, 1710, 1712 (1993) (discussing racial identity and the right to claim “whiteness” through visual perceptions and assumptions by the dominant class, often called “passing”). 165 see ian haney lopez, “a nation of minorities”: race, ethnicity, and reactionary colorblindness, 59 stan. l. rev. 985, 997 (2007) (the “mixing” of races resulted in racial degeneration of whites); ian haney lopez, race on the 2010 census: hispanics & the shrinking white majority, daedalus 42, 43-44 (2005) (discussing white perceptions of latin americans as “mongrels debased by their mixture of spanish and native american (and sometimes african and asian) blood”). 166 see vilma ortiz and edward telles, racial identity and racial treatment of mexican americans, 4 race & soc. problem 41 (2012) (“we found that darker mexican americans, therefore appearing more stereotypically mexican, report more experiences of discrimination. second, darker men report much more discrimination than lighter men do and then women overall. third, more educated mexican americans experience more stereotyping and discrimination than their less-educated counterparts did, which is partly due to their greater contact with whites. lastly, having greater contact with whites leads to experiencing more stereotyping and discrimination.”). 167 see generally rodolfo acuña, occupied america: the chicano's struggle toward liberation (1972). 168 see christy e. lopez, the reasonable latinx: a response to professor henning's the reasonable black child: race, adolescence, and the fourth amendment, 68 am. u.l. rev. f. 55, 80 (2019). no. 10:2] banished and overcriminalized 33 wyoming.169 a conservative estimate of deaths from lynching is at least 597, most dating to the same period when anti-black lynching was rampant during the post-reconstruction and jim crow eras.170 the reasons for lynching included acting “uppity,” “taking away jobs,” making advances towards a white woman, cheating at cards, practicing “witchcraft,” refusing to leave lands that anglos coveted, acting “too mexican,” speaking spanish too loudly, or reminding anglos too defiantly of their “mexicanness.”171 whites lynched mexican women often for sexual offenses, such as resisting an anglo’s advances too forcefully.172 the borderland lynching of ethnic mexicans had similarities and differences to the southern lynching of african americans.173 the comparison is useful to understand some of its motivations and nuances. both types of lynchings were about citizenship, sovereignty, subordination, and control.174 in contrast to african american families, however, a number of mexican victim families had resources to investigate the crimes and thereby place the 169 see william carrigan & clive webb, when americans lynched mexicans, n.y. times (feb. 20, 2015), https://www.nytimes.com/2015/02/20/opinion/ when-americans-lynched-mexicans.html. 170 see richard delgado, the law of the noose: a history of latino lynching, 44 harv. c.r.c.l.l. rev. 297, 299 (2009) (citing william d. carrigan & clive webb, the lynching of persons of mexican origin or descent in the united states, 1848 to 1928, 37 j. soc. hist. 411, 413 (2003) (citing this number and declaring it conservative)). 171 id. (citing carrigan & webb, the lynching of persons of mexican origin or descent in the united states, 1848 to 1928, supra note 170, at 420-23). 172 id. 173 the number of african americans lynched during the period discussed here was higher, around 3,400 to 5000 but the latinx group in the united states was much smaller then. see barbara holden-smith, lynching, federalism, and the intersection of race and gender in the progressive era, 8 yale j.l. & feminism 31 (1996) (reprinted in race and races: cases and resources for a diverse america 155, 155-59 (juan f. perea et al. eds., 2d ed. 2007)). 174 see carter a. wilson, racism: from slavery to advanced capitalism 114 (1996). 34 columbia journal of race and law [vol. 10:2 incidents on an international stage.175 similar to african american lynchings, law enforcement often condoned the murder of mexicans.176 sometimes law enforcement even committed lynchings themselves.177 stephen f. austin, the founder of the texas rangers, wrote in the early nineteenth century that “the anglo-american foundation, the nucleus of republicanism, is to be broken up, and its place supplied by a population of indians, mexicans and renegades, all mixed together, and all the natural enemies of white men and civilization.”178 accounts from the time show that some rangers had “degenerated into common mankillers.”179 there was no penalty for killing, as no jury along the border would ever convict a white man for shooting a mexican.180 historians william carrigan and clive webb estimate that the number of mexicans murdered by members of the texas rangers may run into the thousands.181 police collaboration in attacks against latinxs continued through the twentieth century. historical accounts document law enforcement complicity in the west coast “zoot suit” riots in 175 see nicholas villanueva, jr., lynchings of mexicans in the texas borderlands (2017). some mexicans in the united states were able to alert the mexican government, which in turn made the issue one of international importance. 176 see latinos and criminal justice: an encyclopedia 49 (josé luis morín ed., 2016). 177 id. 178 see alfredo mirande, gringo justice 173-74 (1987). 179 id. at 20. 180 see julia jacobs, border patrol agent who shot mexican teenager is acquitted of involuntary manslaughter, n.y. times (nov. 21, 2018), https://www.nytimes.com/2018/11/21/us/border-patrol-acquitted-involuntarymanslaughter.html (an example of a border patrol acquittal). 181 see william d. carrigan & clive webb, the lynching of persons of mexican origin or descent in the united states, 1848 to 1928, supra note 170, at 417 (noting that the organization's enthusiasm for punishing mexicans ran so high that they even crossed the united states-mexico border to arrest one, who was then returned to the united states where he was “strung up to the cross beams of the gate in the court house yard until he was dead” (quoting el paso times (tex.), apr. 8, 1881)). no. 10:2] banished and overcriminalized 35 1943, when sailors on leave in california attacked young latinx “zoot-suiters,” having been encouraged by local police.182 the riots ended when military authorities declared los angeles offlimits for enlisted personnel and the los angeles city council prohibited “zoot suits,” the clothing favored by many young mexican americans at the time.183 distaste for latinxs in the 1930s is evident in the government’s disassociation of europeans and canadians from the real and imagined category of illegal alien, 184 while mexicans emerged as “iconic illegal aliens.”185 mainstream society easily assimilated europeans and canadians as white american citizens.186 in contrast, “[i]llegal status became constitutive of a racialized mexican identity and of their exclusion from the national community and polity.”187 customs officials treated mexicans less favorably compared to other immigrants at the united states-mexico border.188 beginning in the 1920s, inspection at the border “involved a degrading procedure of bathing, delousing, medical line inspection, and interrogation.”189 officials inspected them while naked, sheared their hair, and fumigated their baggage and clothing.190 “medical line inspection, modeled after the practice at ellis island, required migrants to walk in single file past a medical officer.”191 even though this practice ended in 1924 at ellis 182 see camilo m. ortiz, latinos nowhere in sight: erased by racism, nativism, the black-white binary, and authoritarianism, 13 rutgers race & l. rev. 29, 46 (2012). 183 see lopez, supra note 168, at 81. 184 see mae m. ngai, the strange career of the illegal alien: immigration restriction and deportation policy in the united states, 1921-1965, 21 law & hist. rev. 69, 72 (2003). 185 id. 186 id. 187 id. 188 id. at 80. 189 id. at 85. 190 id. 191 id. 36 columbia journal of race and law [vol. 10:2 island, the government continued to use it at the el paso port of entry for more years.192 customs officers at this port “exempted all europeans and mexicans arriving by first class rail from medical line inspection, the baths, and the literacy test.”193 mexican migrants allowed to commute regularly for work were required to report to the immigration station once a week for bathing.194 mexicans in the southwest continued to see other types of mistreatment, such as border patrol interrogations of mexican laborers on roads and in towns.195 “[i]t was not uncommon for ‘sweeps’ to apprehend several hundred immigrants at a time.”196 by the early 1930s, the service apprehended nearly five times as many suspected illegal aliens in the mexican border region as it did in the canadian border area. the los angeles newspaper la opinión believed the aggressive deportation policy would result in a “de-mexicanization of southern california.”197 2. revisionist history of illegal entry the passport act of 1918 gave the president the power to restrict the comings and goings of foreign citizens during wartime.198 it was one of the first attempts to criminalize entry without inspection.199 up to that point, there were either no limits 192 id. at 86-87. 193 id. at 86. 194 id. at 88. 195 id. 196 id. 197 see id. at 88 (citing clifford perkins, border patrol: with the u.s. immigration service on the mexican boundary, 1910-1954, at 116 (el paso: texas western press, 1978)); la opinion, jan. 29, 1929, 1 (trans. from spanish); commissioner general of immigration to the secretary of labor, annual report, fiscal year ending june 30, 1932, p. 44). 198 see act of may 22, 1918, pub. l. no. 65-154, ch. 81, 40 stat. 559. 199 see jeffrey kahn, the extraordinary mrs. shipley: how the united states controlled international travel before the age of terrorism, 43 conn. l. rev. 819, 833 (2011). no. 10:2] banished and overcriminalized 37 or blanket bans for groups, such as the chinese exclusion act.200 immigrants were free to enter provided they were not “lunatics, polygamists, prostitutes,” or suffered from a “loathsome or a dangerous contagious disease.”201 as a result, millions of immigrants from eastern europe entered the united states between 1901 and 1910.202 the passport act contained criminal provisions imposing a maximum of twenty years in prison for violations of entering the country when the united states was at war.203 prosecutors at the time used this authority to prosecute illegal entrants in an attempt to deter immigration.204 after a federal appeals court ruled the practice of indicting migrants under the passport act unlawful outside of wartime, two lawmakers, james davis and coleman livingston blease, urged congress to pass laws criminalizing entry.205 james davis supported the eugenics movement and believed americans “learned to discern between bad stock and good stock, weak blood and strong blood, sound heredity and sickly human stuff.”206 coleman livingston blease was pro-lynching and against black people receiving education.207 both men spearheaded the effort to create the “undesirable aliens act of 1929,”208 which herbert hoover 200 see the paradoxes of race, class, identity, and "passing": enforcing the chinese exclusion acts, 1882-1910, 25 l. & soc. inquiry 1, 2 (2000) (the chinese exclusion act was the first law to bar the immigration of a particular nationality.). 201 see ngai, supra note 184, at 73. 202 see alan kraut, the huddled masses: the immigrant in american society, 1880-1921, at 20-21 (1982). 203 see keller, supra note 78, at 73. 204 see ian macdougall, behind the criminal immigration law: eugenics and white supremacy, propublica (june 19, 2018), https://www.propublica.org/ article/behind-the-criminal-immigration-law-eugenics-and-white-supremacy. 205 id. 206 see hans p. vought, the bully pulpit and the melting pot: american presidents and the immigrant, 1897-1933, at 176 (2004). 207 see simon, bryant, the appeal of cole blease of south carolina: race, class, and sex in the new south, 62 j. s. hist. 57, 60, 86 (1996). 208 see macdougall, supra note 204. 38 columbia journal of race and law [vol. 10:2 signed into law.209 consequently, between 1929 and 1936, federal, state, and local governments deported between 400,000 and 2,000,0000 mexican immigrants and their united states citizen children.210 people colloquially came to know this as the “mexican repatriation” efforts.211 in 1952, congress enacted 8 u.s.c § 1325, but prosecutions under it were rare for most of the twentieth century.212 although the government created this law to apply to all immigrants, the intent was to restrict immigration from mexico.213 in the first ten years after § 1325 passed, the united states prosecuted approximately 44,000 immigrations, a small number compared to the hundreds of thousands, if not millions, of immigrants rounded up and deported in the great depression’s “repatriation drives.”214 the united states based the drive on the “belief that mexicans were a drain on the economy.”215 “during world war ii, prosecutions under section 1325 decreased as the united states sought more labor for the war effort.”216 the bracero program, which started in 1942 and continued until 1964, brought 209 id. 210 see rose cuison villazor & kevin r. johnson, the trump administration and the war on immigration diversity, 54 wake forest l. rev. 575, 584 (2019). 211 see alex wagner, american’s forgotten history of illegal deportations, the atlantic (mar. 7, 2017) citing, https://www.theatlantic.com/politics/ archive/2017/03/americas-brutal-forgotten-history-of-illegal-deportations/ 517971/ (citing francisco balderrama, a decade of betrayal: mexican repatriation in the 1930s (2006)). 212 see dara ling, why julian castro started a democratic debate fight over repealing “section 1325”, vox (june 26, 2019), https://www.vox.com/ 2019/6/26/18760665/1325-immigration-castro-democratic-debate. 213 see becky little, how border-crossing became a crime in the united states, history (july 1, 2019), https://www.history.com/news/illegal-bordercrossing-usa-mexico-section-1325. 214 id. 215 id. 216 id. no. 10:2] banished and overcriminalized 39 “more than 300,000 mexican guest workers for short-term agricultural projects.”217 the united states did not make prosecuting immigrants a priority.218 presidents generally decided it was not worth it to spend time, money, and resources prosecuting migrants.219 the low number of immigration prosecutions at this time was because of time, money, and resources.220 presidential administrations sought instead to deport millions of mexicans without going through the criminal process.221 things changed during the george w. bush administration.222 in 2005, the bush administration and the department of homeland security (dhs) created osl.223 the program was principally responsible for a 500% increase in illegal entry prosecutions: from 15,392 cases in fiscal year 1997 to 90,067 in 2013.224 between 1997 and 2013, federal courts handled more than a million such cases.225 the total number of people apprehended for illegally crossing the southern united states border has been steadily falling since the year 2000;226 however, sub-groups of people 217 id. 218 id. 219 id. 220 id. 221 id. 222 id. 223 see katharine brink, neglecting due process rights of immigrants in the southwest united states: a critique of operation streamline, 89 u. det. mercy l. rev. 315 (2012). 224 see the immigration prosecution factory, kino border initiative (nov. 14, 2017), https://www.kinoborderinitiative.org/immigrationprosecution-factory/. 225 see criminal immigration prosecutions down 14% in fy 2017, transactional records access clearinghouse, (dec. 6, 2017), https://trac.syr.edu/tracreports/crim/494/. 226 see rebecca hersher, 3 charts that show what’s actually happening along the southern border, npr (june 22, 2018), https://www.npr.org /2018/06/22/622246815/unauthorized-immigration-in-three-graphs. 40 columbia journal of race and law [vol. 10:2 have consistently crossed in greater numbers in recent years.227 the largest groups are central americans seeking asylum because of violence in their home countries.228 mexican migration, much of which relates to family and friendship linkages between the two countries, decreased after the 2008 recession.229 although there has been a decrease in illegal prosecutions since 2013, numbers continue to dwarf pre-2005 levels.230 compared to the obama administration, president trump’s deportations have not been as high in terms of numbers, but there is a sense that united states officials are “looking for everyone.”231 this has “created a society of fear and terror” in immigrant communities.232 this fear resulted in part from former attorney general jeff sessions’ instructions to federal prosecutors to make entry-level prosecutions a high priority nationwide,233 leading to the reenactment of zero tolerance in 2018.234 in the announcement of the policy, jeff sessions said that federal prosecutors will “take on as many of those cases as humanly possible until we get to 100 percent.”235 to carry out the new 227 id. 228 id. 229 see david bier, why unemployment is lower when immigration is higher, cato inst. (july 26, 2016), https://www.cato.org/blog/why-unemploymentlower-when-immigration-higher. 230 see criminal immigration prosecutions down 14% in fy 2017, supra note 225. 231 see lindsey bever & deanna paul, deportations under trump are on the rise but still lower than obama’s, ice report shows, wash. post (dec. 14, 2018), https://www.washingtonpost.com/nation/2018/12/14/deportations-under trump-are-rise-still-lower-than-obamas-ice-report-shows/. 232 id. 233 see renewed commitment to criminal immigration enforcement, u.s. dep’t of just., off. att’y gen. (apr. 11, 2017), https://www.justice.gov/ opa/press-release/file/956841/download. 234 see 2018 95 no. 19 interpreter releases art. 11. 235 see sari horwitz & maria sacchetti, sessions vows to prosecute all illegal border crossers and separate children from their parents, wash. post (may 7, 2018), https://www.washingtonpost.com/world/national-security/sessions no. 10:2] banished and overcriminalized 41 enforcement, jeff sessions sent 35 prosecutors to the southwest and 18 immigration judges to the border to handle asylum claims.236 fifteen of the new ausa positions were allocated to united states attorney’s offices in texas, eight to california, six to arizona, and six to new mexico.237 the administration assigned immigration judges to hear cases in arizona (eloy and florence), california (adelanto, imperial, and otay mesa), new mexico (otero), and texas (el palo, harlingen, pearsall, and port isabel).238 3. post-colonialism the term “post-colonial” refers “to physical settings in which formal colonization has ended or is ending but in which the effects and structures of colonialism remain.”239 post-colonial theory includes writing by mainly asian and african scholars, but now includes some latin americans.240 these writers aim to understand the colonial condition by exploring themes such as resistance, collaboration, and language rights. some address the psychology of the oppressed and the role of intermediaries and says-justice-dept-will-prosecute-every-person-who-crosses-border-unlawfully/ 2018/05/07/e1312b7e-5216-11e8-9c917dab596e8252_story.html. 236 id. 237 see justice department announces additional prosecutors and immigration judges for southwest border crisis, dep’t of just. (may 2, 2018), https://www.justice.gov/opa/pr/justice-department-announces-additional prosecutors-and-immigration-judges-southwest-border. 238 id. 239 see eric k. yamamoto, rethinking alliances: agency, responsibility and interracial justice, 3 asian pac. am. l.j. 33, 56 n.141 (1995). 240 see richard delgado, rodrigo's corridor: race, postcolonial theory, and u.s. civil rights, 60 vand. l. rev. 1691, 1696 (2007) (citing florencia e. mallon, the promise and dilemma of subaltern studies: perspectives from latin american history, 99 am. hist. rev. 1491, 1491-92 (1994) (describing new theoretical constructs among latin american scholars)); latin american subaltern study group, founding statement, 20 boundary 110, 110 (1993) (describing the subaltern studies group of south asian scholars as inspiration for latin american scholars). 42 columbia journal of race and law [vol. 10:2 educated elites who collaborate with overlords. others write about how occupying powers use literature and their invading force as bearers of civilization and light. post-colonial scholarship241 “ha[s] exposed how the identity of the west and the european has been constructed in opposition to another.”242 subaltern studies, “a subset of postcolonial scholarship,”243 examines the exclusion of the other, whether based on gender, sexual status, race, ethnicity, or religion. society constructs exclusions based on what people perceive to be “real differences.”244 the law produces the binaries of “us and them,” “here and there,” and “civilized and uncivilized.” society achieves this by representing the migrant subject as distinct and different.245 these distinctions become key factors for determining who to include and exclude when formulating legal responses to those who cross borders.246 through this analysis, subaltern studies helps unravel the true status of illegal entrants. “illegal aliens” occupy the lowest rung on a community membership ladder that culminates in citizenship.247 “lawful permanent residents and others who 241 examples of postcolonial scholarship includes franz fanon’s the wretched of the earth (1961) (describing mental illnesses in a colonized population and offering independence as a solution) and edward said’s orientalism (1978) (from its position of imperialistic dominance the united states defined an “orient” in a binary way as “the other” in order to solidify itself as superior). 242 see ratna kapur, travel plans: border crossings and the rights of transnational migrants, 18 harv. hum. rts. j. 107, 110 (2005). 243 see delgado, rodrigo’s corridor: race, postcolonial theory, and u.s. civil rights, supra note 240, at 1697 n.17 (citing david ludden, introduction: a brief history of subalternity, in reading subaltern studies: critical history, contested meaning and the globalization of south asia 1, 5-9 (david ludden ed., 2002) (describing history of “subaltern studies,” a subset of postcolonial scholarship)). 244 see kapur, supra note 242, at 110. 245 id. 246 id. 247 see kevin r. johnson, “aliens” and the u.s. immigration laws: the social and legal construction of nonpersons, 28 u. miami inter-am. l. rev. 263, 276-79 (1996-97). no. 10:2] banished and overcriminalized 43 entered through lawful channels are ‘good aliens’ who receive more favorable treatment by the courts than undocumented noncitizens, ‘bad aliens,’ who are ‘uninvited guests, intruders, trespassers, law breakers.’”248 american mainstream culture, discourse, and law subject latinxs to a post-colonial subjugation.249 the prevalence of lynching and vigilante justice by conquering anglos on latinxs in the southwest was a key component of this subjugation.250 a second component is american acceptance of undocumented white european immigrants in spite of the routine banishment of latinxs. beginning in the 1930s, the government legalized many white illegal immigrants from poland, italy, and other european countries through the power of administrative discretion.251 this formal recognition of their inclusion into the nation contributed to a broader reformation of racial identity, a process that reconstructed the “lower races of europe” into white ethnic americans.252 by contrast, mexican entry by illegally crossing the border was an act that could not be undone, a fact that, “combined with the constructions of mexicans as migratory agricultural laborers (both legal and illegal) in the 1940s and 248 id. at 276 (quoting t. alexander aleinikoff, good aliens, bad aliens and the supreme court, in in defense of the alien 46, 47 (lydio f. tomasi ed., 1987)). 249 see generally acuña, supra note 167 (describing the chicano liberation movement); rodolfo acuña, occupied america: a history of chicanos vii-ix (2d ed. 1981) (explaining author's use of the internal-colony analogy); robert blauner, racial oppression in america (1972) (explaining theory of domestic colonialism). historian rodolfo acuña writes that latinxs living in the united states form an internal colony. acuña, occupied america: a history of chicanos, supra note 249, at [insert pincite]. 250 see delgado, the law of the noose: a history of latino lynching, supra note 170, at 312. 251 see ngai, supra note 184, at 108. “[a] rough estimation suggests that between 1925 and 1965 some 200,000 illegal european immigrants, constructed as deserving, successfully legalized their status under the registry act, through pre-examination, or by suspension of deportation.” id. at 107. 252 ngai, supra note 184, at 108. 44 columbia journal of race and law [vol. 10:2 1950s gave powerful sway to the notion that mexicans had no rightful presence on united states territory, no rightful claim of belonging.”253 american engagement with latin american countries embodies neo-colonial and post-colonial dynamics.254 central american nations are as dependent on the united states as they were during most of the twentieth century.255 although the united states never formally colonized these nations or parts of mexico, american economic hegemony depended on extracting resources and labor from these countries.256 this extraction contributed to economic underdevelopment in those regions.257 underdevelopment led immigrants to flee their homelands on a daily basis directly because of unemployment or low wages that resulted from distorted economic relations.258 the united states created satellite relationships with central america and mexico.259 once migrants arrived, the government deported them back to 253 id. 254 see david sheinin, colonial and post-colonial latin america, 7 afr. stud. q. 219, 222 (2003) (noting that scholars such as “andre gunder frank, fernando henrique cardoso, and other ‘“dependentistas’ conceived of a new imperialism that was primarily american and that held up latin american countries as colonies.”). 255 see steven schmidt, latin american dependency theory, global south studies (jan. 21, 2018), https://globalsouthstudies.as.virginia.edu/key-thinkers/ latin-american-dependency-theory. 256 id. 257 id. 258 see julian borger, fleeing a hell the us helped create: why central americans journey north, the guardian (dec. 19, 2018), https://www. theguardian.com/us-news/2018/dec/19/central-america-migrants-us-foreignpolicy. 259 see generally fernando enrique cardoso & enzo faletto, dependency and development in latin america (1979); andre gunder frank, capitalism and underdevelopment in latin america (1967); edward goldsmith, development as colonialism, in the case against the global economy 253 (1996); walter rodney, how europe underdeveloped africa (1981). no. 10:2] banished and overcriminalized 45 their home countries. the story then repeated itself as many tried to return and were at risk of deportation again.260 american action that incites violence in central america is another type of post-colonial oppression.261 for example, nicaragua was an american battlefront in the cold war.262 after the leftleaning sandinistas took control, president reagan, acting through executive order, intervened to attempt to restore president somoza to power.263 this military intervention triggered violence and led to waves of people who fled to enter the united states.264 the united states also funded and trained military regimes battling guerilla groups in el salvador and guatemala.265 this claimed the lives of thousands of people,266 generated a refugee flow of nearly 1,000,000, and contributed to political and economic instability that continues today.267 many of the families that experienced these hardships fled north, where the justice system criminally prosecuted them with illegal entry and deported them. 260 see amy f. kimpel, coordinating community reintegration services for "deportable alien" defendants: a moral and financial imperative, 70 fla. l. rev. 1019 (2018) (noting that recidivism rates for individuals who are convicted of illegal entry and re-entry (u.s.c. §§ 1325 and 1326) are quite high despite post-sentencing deportations). 261 see deirdre salsich, international workers' rights enforced through free trade agreements: dr-cafta and the dol's case against guatemala, 25 n.y. int'l l. rev. 19, 27 (2012). 262 see rebecca sharpless, “immigrants are not criminals”: respectability, immigration reform, and hyperincarceration, 53 hous. l. rev. 691, 757 (2016) (citing james m. scott, interbranch rivalry and the reagan doctrine in nicaragua, 112 pol. sci. q. 237, 243 (1997)). 263 id. 264 id. 265 id. (citing kevin sullivan & mary jordan, in central america, reagan remains a polarizing figure, wash. post (june 10, 2004), http://washingtonpost.com/ wp-dyn/articles/a29546-2004jun9.html). 266 id. 267 id. at 759 (citing susan gzesh, central americans and asylum policy in the reagan era, migration pol’y inst. (apr. 1, 2006), http://migrationpolicy.org/ article/central-americans-and-asylum-policy-reagan-era). 46 columbia journal of race and law [vol. 10:2 american trade agreements with latin american nations have also pressured migrants to come north without papers.268 during the 1990s, mexico and other developing nations began to accept structural adjustment programs that resulted in privatization, subsidies, price controls, trade liberalization, and reduced worker protections.269 one example is the north american free trade agreement (nafta), a devastating economic policy that led to migration more than any other time in recent history.270 the government prosecuted and deported many who came north under § 1325, but they returned.271 ironically, as much as the united states deports latinxs, as a global capitalist giant, it requires poor migrants for a supply of cheap labor to fill jobs americans find “beneath them”272—an issue as true today as it was 100 years ago.273 during the first two decades of the twentieth century, for instance, “[i]mmigration inspectors ignored mexicans coming into the southwestern united states . . . to work in railroad construction, mining, and agriculture.”274 “the immigration bureau did not seriously consider mexican immigration within its purview, but rather as something that was ‘regulated by labor market demands in [the southwestern] border states.’ the bureau also described the 268 see david bacon, illegal people: how globalization creates migration and criminalizes immigrants 60 (2008). 269 id. 270 id. at 51. 271 see kimpel, supra note 260. 272 see isabella bakker & stephen gill, global political economy and social reproduction, in power, production and social reproduction 3, 5 (isabella bakker & stephen gill eds., 2003) (discussing how current global governance facilitates transnational corporations). see also aristide r. zolberg, the next waves: migration theory for a changing world, 23 int'l migration rev. 403, 404-05 (1989) (proposing a migratory theory grounded in the fact of inequality). 273 see ngai, supra note 184, at 83 (“after 1924, when european immigration to the united states declined, american sugar beet growers resorted not to canadian labor but to mexican and, secondarily, to filipino labor.”). 274 id. no. 10:2] banished and overcriminalized 47 southwest as the ‘natural habitat’ of mexicans, acknowledging, albeit strangely, mexicans’ claims of belonging in an area since that had once been part of mexico.”275 b. prosecution of drug couriers through a crt lens 1. intersectionality intersectionality is useful for a discussion in this article because it helps one see the myriad dimensions of a person from his or her point or view based on varied life experiences. intersectionality276 is the belief that individuals and classes often have shared overlapping interests or traits.277 it examines race, sex, class, national origin, and sexual orientation to study how their combination plays out in various settings.278 intersectionality also dictates that socioeconomic lines, each of which generates intersectional individuals, divide many races.279 perspectivism, an aspect of intersectionality, is the insistence on examining how things look from the perspective of individual actors. it helps understand the predicament of intersectional individuals280 and enables us to avoid oversimplifying human experience.281 275 id. at 82. 276 see crenshaw, supra note 151. professor kimberlé crenshaw introduced intersectionality theory as a challenge to the “uncritical and disturbing acceptance of dominant ways of thinking about discrimination.” id. at 150. the oxford online dictionary defines it as “[t]he interconnected nature of social categorizations such as race, class, and gender as they apply to a given individual or group, regarded as creating overlapping and interdependent systems of discrimination or disadvantage.” lexico, (last visited mar. 23, 2020), https://www.lexico.com/en/definition/intersectionality. 277 see richard delgado & jean stefancic, critical race theory: an introduction 165 (2d ed. 2012) (discussing critical race theory as being fundamentally based on antisubordination). 278 id. at 51. 279 id. at 54. 280 id. at 55. 281 id. 48 columbia journal of race and law [vol. 10:2 intersectionality is evident in the experiences of latina drug couriers, whom drug traffickers routinely recruit in order to send drugs into the united states, sometimes by means of threats.282 if law enforcement arrests them, and the united states attorney decides to pursue charges, these couriers experience implicit bias as people of color in the courtroom.283 second, they face bias as undocumented latinxs.284 third, if their defense 282 see tracy huling, women drug couriers: sentencing reform needed for prisoners of war, 9 crim. just. 15, 15 (1995) (“[w]omen drug couriers should be a population of particular concern to policy experts examining the effects of the global war on drugs.”). see also shimica gaskins, women of circumstance—the effects of mandatory minimum sentencing on women minimally involved in drug crimes, 41 am. crim. l. rev. 1533, 1533 (2004) (“these ‘women of circumstance’ find themselves incarcerated and subject to draconian sentences because the men in their lives persuade, force, or trick them into carrying drugs.”); phyllis goldfarb, counting the drug war's female casualties, 6 j. gender race & just. 277, 280 (2002) (women have been caught in the crossfire of the drug war through heterosexual relationships with men engaged in drug activity.”). 283 implicit bias helps “explain not only the continued subordination of historically subordinated groups but also the legal system's complicity in that subordination.” eric k. yamamoto & michele park sonen, reparations law: redress bias?, in implicit bias across the law 2, 6 (justin d. levinson & robert j. smith, eds., 2012) (calling for intersectional race-gender sensitive redress to account for implicit redress bias). for an in-depth treatment of implicit bias in the law, see jerry kang & kristin lane, seeing through colorblindness: implicit bias and the law, 58 ucla l. rev. 465 (2010); justin d. levinson, huajian cai & danielle young, guilt by implicit racial bias: the guilty/not guilty implicit association test, 8 ohio st. j. crim. l. 187 (2010); anthony g. greenwald & linda h. krieger, implicit bias: scientific foundations, 94 calif. l. rev. 945 (2006). 284 courts sentence latinx more harshly than whites. see darrell steffensmeier and stephen demuth, ethnicity and sentencing outcomes in u.s. federal courts: who is punished more harshly?, 65 am. soc. rev. 705 (2000). undocumented immigrants are far more likely to be incarcerated and sentenced for longer periods than are u.s. citizens. light et. al,, supra note 65. the magnitude of the citizenship penalty is over four times stronger than nearly all of the extra-legal variables that factor prominently in prior research. id. if a court sentences the average offender to 78 months in prison, the average noncitizen receives a sentence of just over 81 months. id. no. 10:2] banished and overcriminalized 49 attorney appears mexican or has “hispanic appearance,” they are likely to face even more discrimination.285 patriarchal relationships are another type of intersectional layer that latina couriers face.286 patriarchy, a product of male dominance in cultures, is “a structure that constrains agency and determines behavior.”287 scholars use it to explain the universal devaluation of women in society. the concept asserts that the patriarchal social structure survives because men restrain women from advancing socially.288 thus, male-dominated societies and institutions subject third-world women accused of drug trafficking to this additional weight of oppression through insistence on mandatory minimum punishments and disparities in bail hearings that negatively affect foreigners.289 drug traffickers recruit young third-world women as couriers because they 285 see cynthia willis-esqueda & russ espinoza, defendant and defense attorney characteristics and their effects on juror decision making and prejudice against mexican americans, 14 cultural diversity & ethnic minority psychol., 364-71 (2008). this study found that bias against mexican american defendants occurred most when the mexican american defendant was of low socio-economic status and represented by a mexican american defense attorney. id. in addition, study participants perceived attorneys representing low-ses mexican american defendants as less competent and rated lower on a number of trait measures. id. 286 see generally holly jeanine boux & courtenay w. daum, stuck between a rock and a meth cooking husband: what breaking bad's skyler white teaches us about how the war on drugs and public antipathy constrain women of circumstance's choices, 45 n.m. l. rev. 567, 569, 573 (2015). 287 see jessica a. platt, female circumcision: religious practice v. human rights violation, 3 rutgers j.l. & religion 5 (2001) (citing l. amede obiora, bridges and barricades: rethinking polemics and intransigence in the campaign against female circumcision, 47 case w. res. l. rev. 275 (1997). 288 id. 289 see cheryl b. preston, women in traditional religions: refusing to let patriarchy (or feminism) separate us from the source of our liberation, 22 miss. c.l. rev. 185, 194 (2003) (it is also the case that western feminists fail to see how imperialism subjects third world women to additional layers of oppression.). 50 columbia journal of race and law [vol. 10:2 perceive them as weak, gullible, and less likely to face questioning by customs and border protection officers compared to men.290 traffickers believe they can also more easily threaten and assault them if uncompliant in response to requests to transport drugs.291 2. revisionist history of federal drug laws crt calls for the study of the history of laws and legal practices from the perspective of subjugated groups.292 only by studying history from the bottom up can one understand the interplay of race and contemporary federal drug courier prosecutions. to this end, this section traces the evolution of federal drug laws to highlight how prosecutors have disproportionately targeted latinxs. drugs first surfaced in the united states when opium and cocaine became popular after the american civil war in the 1880s.293 people used coca, the plant from which we derive cocaine, in health drinks and remedies.294 medical providers used morphine, discovered in 1906, for medicinal purposes. during 290 see the rise of femicide and women in drug trafficking, council on hemispheric aff. (oct. 28, 2011), http://www.coha.org/the-rise-of-femicideand-women-in-drug-trafficking/. 291 it is the experience of this author that many female clients are asked to transport drugs within their body cavities. 292 see antony anghie, civilization and commerce: the concept of governance in historical perspective, 45 vill. l. rev. 887, 891 (2000). the study of history is a practical exercise, a means of facilitating and furthering the reconstructive project of critical race theory, lat-crit, or third world approaches to international law. id. it offers one means of understanding why people of color continue to be the most disadvantaged and marginalized. id. 293 see stephen r. kandall, illicit drugs in america: history, impact on women and infants, and treatment strategies for women, 43 hastings l.j. 615, 617, 619 (1992). 294 see john p. morgan & lynn zimmer, the social pharmacology of smokeable cocaine: not all it's cracked up to be, schaffer library of drug policy, (1997) http://www.druglibrary.org/schaffer/cocaine/crack.htm. no. 10:2] banished and overcriminalized 51 this time, people also used heroin to treat respiratory illnesses.295 the turn of the century saw awareness that psychotropic drugs can cause drug addiction as opium and cocaine abuse reached epidemic proportions.296 local governments began prohibiting opium dens and opium importation,297 which prompted the 1914 harrison narcotics act, the first federal drug policy.298 it restricted the manufacture and sale of marijuana, cocaine, heroin, and morphine.299 it limited the discretion of physicians to treat addicts with maintenance doses of narcotics.300 pursuant to the act, the government criminally prosecuted doctors and some pharmacists.301 criminal drug enforcement became part of jim crow in the early twentieth century.302 “[t]he criminalization of drugs such as marijuana started much earlier, around 1920, when policy-makers noticed that mexicans living in the southwest used it recreationally and that its use was catching on with black 295 id. 296 id. 297 id. 298 see harrison narcotics act of 1914, pub. l. no. 63-223, 38 stat. 785, repealed by comprehensive drug abuse prevention and control act of 1970, 21 u.s.c. §§ 801-971 (2006). 299 id. 300 see webb v. united states, 249 u.s. 96, 99-100 (1919); united states v. doremus, 249 u.s. 86, 94 (1919); united states v. jin fuey moy, 241 u.s. 394, 402 (1916). 301 see richard c. boldt, drug policy in context: rhetoric and practice in the united states and the united kingdom, 62 s.c. l. rev. 261, 351 (2010) (citing rufus g. king, the narcotics bureau and the harrison act: jailing the healers and the sick, 62 yale l.j. 736, 737-48 (1953) (discussing “the furious blitzkrieg” involved with enforcing the harrison act and the judiciary's contribution to the campaign)). 302 see gabriel j. chin, race, the war on drugs, and the collateral consequences of criminal conviction, 6 j. gender race & just. 253, 271 (2002). 52 columbia journal of race and law [vol. 10:2 musicians.”303 anti-latinx bias304 in marijuana prohibition prevailed because enforcement took place in regions of the united states most heavily populated by mexican and central american immigrants.305 people perceived that newly arrived mexicans used the drug.306 longstanding stereotypes of mexicans as “criminal and treacherous” made it easy for law-and-order politicians and voters to scapegoat them for the drug trade.307 as early as 1931, a study under president hoover that analyzed arrest and conviction data showed racial bias in the creation and enforcement of drug laws.308 it concluded that mexicans were overrepresented in marijuana arrest and convictions.309 the christian science monitor relied on the study for an article published just before the enactment of the first federal marijuana prohibition, the 1937 marijuana tax act. 310 the monitor’s reliance on the study is an example of how people perceived “mexicans were criminally inclined,’ . . . responsible for using and selling marijuana and engaging in other criminal acts, and influencing whites to do the same.”311 303 see richard delgado & jean stefancic, critical perspectives on police, policing, and mass incarceration, 104 geo. l.j. 1531, 1540 (2016) (citing steven w. bender, joint reform?: the interplay of state, federal, and hemispheric regulation of recreational marijuana and the failed war on drugs, 6 alb. gov't. l. rev. 359, 361-62 (2013)). 304 see carrie rosenbaum, what (and whom) state marijuana reformers forgot: crimmigration law and noncitizens, 9 depaul j. soc. just. 1, 16 (2016). 305 id. (citing carl olsen, the early state marijuana laws, schaffer libr. of drug pol'y (last visited mar. 23, 2020), http://www.druglibrary.org/ olsen/dpf/whitebread05.html. 306 id. 307 id. (citing steven w. bender, run for the border: vice and virtue in u.s.-mexico border crossings 164-65 (ediberto román, ed., 2012)). 308 see rosenbaum, supra note 304, at 16. 309 id. at 17 (citing richard j. bonnie & charles h. whitebread, the marijuana conviction: a history of marijuana prohibition in the united states 76 (1st ed., 1974)). 310 id. (citing bonnie & whitebread, supra note 309, at 76-77). 311 id. no. 10:2] banished and overcriminalized 53 during its history, mainstream american culture did not always attach immorality to narcotic drug use.312 the moral reappraisal of narcotics addiction did not occur until patterns of use shifted from the middle and upper classes to those in the working classes and the poor in the early twentieth century.313 as a substantial number of minorities at the time were poor, they became associated with stigmatized drug use.314 the mid-twentieth century saw increased drug regulation and enforcement, culminating with the war on drugs.315 the 1951 passage of the narcotics drugs and import and export act introduced severe mandatory minimum prison sentences for drug offenders.316 with the ramping-up of federal agencies and bureaucracy devoted to drug control, drug use in the united states became more salient in public consciousness and more closely associated with challenges to established authorities.317 these trends drove president richard nixon to declare the problem of drug use as “public enemy number one.”318 nixon declared a 312 see boldt, supra note 301, at 351 (citing troy duster, the legislation of morality: law, drugs, and moral judgment 19–10, 22–23 (1970)). 313 id. 314 see rex greene, m.d., towards a policy of mercy: addiction in the 1990s, 3 stan. l. & pol'y rev. 227, 230 (1991). 315 the war on drugs comprises a series of actions tending toward prohibition of illegal drug trade, adopted by the u.s. government along with foreign military aid and assistance of participating countries to define and to end the import, manufacture, sale, and use of illegal drugs. see war on drugs law and legal definition, u.s. legal (last visited mar. 23, 2020), https://definitions.uslegal.com/w/war-on-drugs/. the war on drugs was largely responsible for the imprisonment of mostly low-level drug offenders, including couriers. see abbe smith & william montross, the calling of criminal defense, 50 mercer l. rev. 443, 456 (1999) (the war on drugs has contributed to the massive influx of poor non-whites into the criminal justice system.). 316 see boldt, supra note 301, at 285-86. 317 id. at 286 (citing effective drug control: toward a new legal framework, king cnty. bar ass'n, drug pol'y project 25 (2005), http://www.kcba.org /druglaw/pdf/effectivedrugcontrol.pdf). 318 id. 54 columbia journal of race and law [vol. 10:2 “war on drugs,” which matured under president reagan. 319 to justify the war on drugs, the reagan administration portrayed african americans, latinxs, and other people of color as the enemy.320 “reagan’s rhetorical declaration of a [w]ar on [d]rugs had a deliberate political effect.”321 it allowed the president to appear as a strong leader, tough on crime, and concerned about domestic issues. it was strategically advantageous to portray urban minorities as responsible for problems related to the drug war and for resolving such problems.322 supporters of the war on drugs did not see race discrimination because they did not believe drug law enforcement harmed minorities.323 they saw it as protecting communities of color “from addiction, harassment, and violence.”324 “[w]ithout realizing it, they have accepted the same definition of discrimination that the courts use in constitutional equal protection cases— absent ill-intent, there is no discrimination.”325 the war on drugs permitted congress to enact three overly punitive sets of drug laws during the 1980s. the first was the comprehensive crime control act of 1984, which increased federal penalties for cultivation, possession, or transfer of marijuana and allowed the government to seize property associated with drug offenses.326 the second was the anti-drug 319 id. (citing diane e. hoffmann, treating pain v. reducing drug diversion and abuse: recalibrating the balance in our drug control laws and policies, 1 st. louis u. j. health l. & pol'y 231, 263-64 (2008)). 320 see kenneth b. nunn, race, crime and the pool of surplus criminality: or why the "war on drugs” was a "war on blacks", 6 j. gender race & just. 381, 390 (2002). 321 id. 322 id. (citing william n. elwood, rhetoric in the war on drugs: the triumphs and tragedies of public relations 11 (1994)). 323 see jamie fellner, race, drugs, and law enforcement in the united states, 20 stan. l. & pol'y rev. 257 (2009). 324 id. 325 id. 326 comprehensive crime control act of 1984, pub. l. no. 98-473, 98 stat. 1976 (1984). no. 10:2] banished and overcriminalized 55 abuse act of 1986, which contained harsh new penalties, including new mandatory minimum sentences.327 the federal law supporting charges against drug couriers, 21 u.s.c. § 841, was codified as part of this law.328 the third was the anti-drug abuse act of 1988, which set criminal penalties even higher.329 to justify these laws, the “administration embraced a supplyreduction strategy focusing on interdiction, seizure and criminal prosecution, rather than a demand-reduction strategy that focused on public education and drug treatment designed to reduce demand for illegal drugs.”330 these legislative policies led to high numbers of arrests and harsh punishment of latinxs along the border.331 another factor that contributed to more arrests included the shift in drug trafficking from oceanic transportation to land travel.332 in 1994, for example, low-level couriers comprised forty-two percent of federal drug offenders.333 on average, courts sentenced them to 327 see eric e. sterling, the sentencing boomerang: drug prohibition politics and reform, 40 vill. l. rev. 383, 408 (1995). 328 see edward j. tafe, sentencing drug offenders in federal courts: disparity and disharmony, 28 u.s.f. l. rev. 369, 377 (1994). 329 see sheldon whitehouse, foreword, 11 harv. l. & pol'y rev. 359, 362 (2017) (citing anti-drug abuse act of 1988, pub. l. no. 100-690, § 6371, 102 stat 4181, 4370 (repealed by fair sentencing act of 2010)). 330 see nunn, supra note 320, at 388. 331 see e. ann carson & elizabeth anderson, prisoners in 2015, u.s. dep’t of just. (dec. 2016), https://www.bjs.gov/content/pub/pdf/p15.pdf (latinxs make up 18% of the united states population but comprise 38% of people incarcerated in federal prisons for drug offenses.). 332 see shannon k. o'neil, the real war in mexico: how democracy can defeat the drug cartels, foreign aff. (aug. 2009), http://www.foreignaffairs. com/articles/65175/shannon-k-oneil/the-realwarin-mexico (during the 1980s, the united states installed stricter policies pertaining to drug transit through sea, resulting in increases in drug-trafficking across the u.s.-mexico border and increasing drug cartel activity in mexico.). 333 see shimica gaskins, "women of circumstance" the effects of mandatory minimum sentencing on women minimally involved in drug crimes, 41 am. crim. l. rev. 1533, 1543 (2004) (citing analysis of non-violent drug offenders with minimal criminal histories, u.s. dep’t of just. 3 (1994)). 56 columbia journal of race and law [vol. 10:2 thirty-nine months in prison, but considerable numbers served mandatory minimum sentences.334 the problem is not government prosecution of drug couriers, but the amount of time they face because of increasingly harsh policies by the united states attorney general,335 coupled with the focus of federal drug prosecutions mainly on couriers, not kingpins.336 for instance, during the entire history of the mandatory minimum laws (1986 to the present day), there was only a four-year period during the obama administration when couriers did not face mandatory minimum charging.337 on the 334 see russell m. gold et al., civilizing criminal settlements, 97 b.u. l. rev. 1607, 1618 n.32 (2017) (citing 161 cong. rec. s955-02, s963) (describing senator chuck grassley’s statements opposing legislation that would have reduced mandatory minimum sentences, in part because prosecutors were not seeking those penalties in all cases). 335 see weber, supra note 88, at 1759 (for succinct explanation of federal mandatory minimum drug sentences). 336 jacob sullum, federal prosecutors say they never see low-level drug offenders, reason (may 30, 2017), https://reason.com/2017/05/30/federalprosecutors-say-they-never-see-l/. 337 in 2013, u.s. attorney general eric holder issued a memo that required federal prosecutors to avoid mandatory minimum sentences in certain lowlevel, non-violent drug cases, citing the “unduly harsh sentences” and rising prison costs. memorandum from attorney general eric holder to the united states attorneys and assistant attorney general for the criminal division (aug. 12, 2013), http://www.justice.gov/sites/default/files/oip/legacy/2014/ 07/23/ag-memo-department-policypon-charging-mandatory-minimum-sentences -recidivist-enhancements-in-certain-drugcases.pdf (issuing new policy against prosecutorial charging decisions triggering mandatory-minimum sentences if certain criteria are satisfied, such as a nonviolent offense, no serious criminal history, and no major connection with organized crime). u.s. attorney general jeff sessions rescinded the memo on may 12, 2017. mr. sessions directed all federal prosecutors to pursue the most severe penalties possible, including mandatory minimum sentences. sari horwitz, sessions issues sweeping new criminal charging policy, wash. post (may 12, 2017), https://www. washingtonpost.com/world/national-security/sessions-issues-sweeping-newcriminal-charging-policy/2017/05/11/4752bd42-3697-11e7-b373418f6849a004_story.html (“attorney general jeff sessions said friday that he has directed his federal prosecutors to pursue the most severe penalties no. 10:2] banished and overcriminalized 57 other hand, not all couriers are safety valve eligible, which means that there is no way for some couriers to avoid harsh mandatory minimum sentences.338 it has only been recent policies, such as the first step act, that have expanded the safety valve provision for some offenders.339 3. impact of harsh drug courier punishment possible, including mandatory minimum sentences, in his first step toward a return to the war on drugs of the 1980s and 1990s that resulted in long sentences for many minority defendants and packed u.s. prisons.”). 338 drug couriers with a prior conviction that resulted in a prison term of more than one year and one month are not eligible for the safety valve. u.s. sentencing guidelines manual § 4a1.1(a) (u.s. sentencing comm’n 2020). the safety valve is a way for drug couriers facing mandatory minimum of 5 or 10 years punishment to qualify for lesser periods of incarceration. thus, a low-level offender sentenced in any jurisdiction for a minor crime to more than a year and one month is not eligible. the only way for a drug courier in this position to receive less time is to provide “substantial assistance” to the government. u.s. sentencing guidelines manual § 5k1.1 (u.s. sentencing comm’n 2020). most kingpins or higher-level drug workers do not tell couriers details about drug trafficking. see john s. austin, prosecutorial discretion and substantial assistance: the power and authority of judicial review—united states v. wade, 15 campbell l. rev. 263, 274 (1993) (noting that drug couriers have little knowledge of operations). thus, these couriers are unable to supply “substantial assistance” and must serve mandatory minimum sentences if convicted. 339 president trump signed the first step act into law on december 21, 2018. it expanded the safety valve to 4 points, so long as no conviction resulted in 3 points or were for violent crimes. jonathan feniak, the first step act: criminal justice reform at a bipartisan tipping point, 96 denv. l. rev. online 166, 169 (2019) (citing brandon sample, first step act: a comprehensive analysis, dec. 19, 2018, https://sentencing.net/legislation/ first-step-act). 58 columbia journal of race and law [vol. 10:2 despite a 2018 poll340 that showed a majority of latinxs favor rehabilitation over punitive responses to crime,341 couriers face an average of thirty-nine months in prison.342 rehabilitation means providing services outside of the prison or jail context. the criminal justice system continues to use harsh punishment, even though research proves that prolonged periods of incarceration increase the rate of suicidal ideation and suicide attempts among children of prisoners.343 for example, a recent study of latinx in california assessed the association between familial incarceration and suicide behaviors, and examined ethnic identity as a potential factor in reducing suicide attempts.344 the study found that the use of positive racial identity among latinx children and their families mitigates the problem.345 the criminal justice system doubly punishes low-level drug couriers with family in the united states who have obtained green cards or visas. one former client, who pled guilty, will never be able to enter to visit his mother in nogales, arizona because authorities suspended his border-crossing card. another client who pled guilty lost her green card because of the drug conviction. her entire family lives in the united states. the client learned she was pregnant after her arrest and returned to 340 latino decisions, latinx cjr survey (2018), https://docs.google.com/ spreadsheets/u/1/d/e/2pacx-1vqgvvqx16ox5ohpdky62cjynbqq30b dgxkeb-renmzukin6fwneg_up4zeu233aodiy-i1z9sz9ptif/pubhtml. 341 national poll shows latinos are concerned about police violence, feel less safe under trump but insist on increased rehabilitation instead of more funding for prisons or police, latinojustice prldef (jan. 10, 2017), https://www.latinojustice.org/es/news/national-poll-shows-latinos-areconcerned-about-police-violence-feel-less-safe-under-trump. 342 gold et al., supra note 334, at 1618 n.32 (citing 161 cong. rec. s955-02, supra note 334, at s963). 343 myriam forster et al., the role of familial incarceration and ethnic identity in suicidal ideation and suicide attempt: findings from a longitudinal study of latinx young adults in california, 64 am. j. cmty. psychol. 191, 192 (2019). 344 id. at 195–97. 345 id. no. 10:2] banished and overcriminalized 59 mexico as a single mother with no family to help rear the baby after she served her sentence (her mother, father, and siblings reside in the phoenix area). this client planned to move to tijuana, baja california, as one of her aunts lives there. a third client, who possessed a visa had it revoked because of a plea to drug importation. although his common-law wife and children reside in mexico, one of his sisters lives in the united states. after the bureau of prison releases these convicted couriers, all must endure banishment from the united states for the rest of their lives. 4. drug courier prosecutions maintain racial stratification historical processes racially stratify american society, 346 with sharp disparities in criminal justice.347 one in every thirtyone adults in the united states is in prison, on parole, or on probation.348 broken down by race, this constitutes “one in every eleven african americans, one in twenty-seven latinxs, and one in forty-five whites.”349 significantly, “[r]acial differences in the penal context dramatically exceed those in every other social domain: ‘whereas racial disparities in unemployment and infant mortality stand at roughly two to one, and the disparity in unwed childbearing is three to one, the differential with respect to 346 natsu saito jenga, finding our voices, teaching our truth: reflections on legal pedagogy and asian american identity, 3 asian pac. am. l.j. 81, 82 (1995) (“[c]ontemporary american society is in its essence racially stratified; i.e., that racial divisions are a fundamental, structural element of american social and economic institutions, not simply an unfortunate remnant of our past.”). 347 ian f. haney lópez, post-racial racism: racial stratification and mass incarceration in the age of obama, 98 calif. l. rev. 1023, 1025 (2010). 348 id. at 1023, 1028. 349 id. at 1028. 60 columbia journal of race and law [vol. 10:2 imprisonment is eight to one.”350 the federal judicial center reports, “african-americans and latinx were more likely than whites to be sentenced to at least the minimum sentence” in cases with mandatory minimums.351 the federal system perpetuates racial imbalances, even though it incarcerates only twelve percent of prisoners in the united states.352 for instance, in 2007, latinxs constituted forty percent of newly sentenced offenders in federal prisons and accounted for nearly one in three of all federal inmates.353 the federal criminal justice system convicted nearly half of all latinxs sentenced in federal court in 2007 of immigration offenses.354 by 2011, latinxs constituted the majority of people sentenced to prison for federal felonies.355 by imprisoning mainly minority defendants, drug courier prosecutions perpetuate the phenomenon of mass incarceration, the extreme rate of imprisonment of young minority men “living in neighborhoods of concentrated disadvantage.”356 mass incarceration includes the “larger web of laws, rules, policies, and customs that 350 id. (citing douglas s. massey, categorically unequal: the american stratification system 99 (2007); bruce western, punishment and inequality in america 16 (2006)). 351 testimony of charles ogletree: discriminatory impact of mandatory minimum sentences in the united states, 18 fed. sent. r. 273, 275, 2006 wl 2433755 (vera inst. just.). 352 see wendy sawyer and peter wagner, mass incarceration: the whole pie 2020, prison pol’y initiative (mar. 24, 2020), https://www.prisonpolicy.org/ reports/pie2020.html. out of 2,300,000 people incarcerated in the united states, the federal system houses 226,000. id.; id. at slideshow 1. 353 a rising share: hispanics and federal crime, pew res. ctr. (feb. 18, 2009), https://www.pewresearch.org/hispanic/2009/02/18/a-rising-share-hispanics and-federal-crime/. 354 id. 355 hispanics new majority sentenced to federal prison, cbs8 (sept. 6, 2011, 12:28 p.m.), https://www.cbs8.com/article/news/hispanics-new-majoritysentenced-to-us-prisons/509-56287f59-d793-4a1b-b4a0-9b1b2066706a. 356 christopher wildeman, mass incarceration, oxford bibliographies, (last visited aug. 6, 2019), https://www.oxfordbibliographies.com/view/ document/obo-9780195396607/obo-9780195396607-0033.xml. no. 10:2] banished and overcriminalized 61 control those labeled criminals both in and out of prison.”357 former couriers, anglos, latinxs, and african-americans, leave prison each year to “enter a hidden underworld of legalized discrimination and permanent social exclusion.”358 felon disenfranchisement forms part of a large machine of american marginalization that disadvantages latinxs by relegating them, like african americans, to inferior schools, jobs, and even the loss of voting rights.359 consequently, latinxs have “low average family income, school completion rates, and access to health care.”360 an inability to vote, rent, own adequate housing, or find well-paying work results from this system of subjugation.361 mass incarceration succeeds in segregating black people from the american mainstream, while imprisonment and subsequent banishment accomplishes the same result for legal permanent resident and visa-carrying couriers.362 imprisonment and banishment, therefore, determine the fate of two large groups of near-equal size, 357 michelle alexander, the new jim crow: mass incarceration in the age of colorblindness 15 (2010). 358 id. at 13. 359 tomiko brown-nagin, elites, social movements, and the law: the case of affirmative action, 105 colum. l. rev. 1436, 1458–61 (2005). see also lauren handelsman, giving the barking dog a bite: challenging felon disenfranchisement under the voting rights act of 1965, 73 fordham l. rev. 1875, 1879 (2005) (noting that in the united states a felony conviction carries not only criminal repercussions, but also civil ones such as the loss of the right to hold public office, the loss of the right to serve as a juror, and the loss of the right to vote). 360 delgado & stefancic, critical perspectives on police, policing, and mass incarceration, supra note 303, at 1537-38 (citing anna brown & eileen patten, statistical portrait of hispanics in the united states, 2012, pew res. ctr. (apr. 29, 2014), http://www.pewhispanic.org/ 2014/04/29/statistical-portrait-of-hispanics-in-the-united-states-2012 [https://perma.cc/mcn4-57dj]). 361 kelly lyn mitchell, reining in collateral consequences by restoring the effect of judicial discretion in sentencing, 27 hamline j. pub. l. & pol'y 1, 23–26 (2005). 362 this is because legal permanent residents lose their green card because of the criminal drug trafficking conviction. 8 u.s.c. § 1182(a)(2)(c). 62 columbia journal of race and law [vol. 10:2 demonstrating how society uses imprisonment and deportations to impose racial stratification and control.363 racial segregation and mass incarceration both embody racialized systems of control that foster a racial caste system.364 mass incarceration differs from the old jim crow in that it does not rely on overt racial classifications. the overall impact of america's criminal justice system on black and latinx felons bears striking similarities to the impact that segregation had on african americans in the pre-brown south, including disfranchisement, exclusion from juries, racial segregation, and the perpetuation of racial stigma. a racial caste system locks stigmatized racial groups into inferior positions by law and custom, regardless of whether those laws and customs derive from direct racial animus or indifference.365 the increase in incarceration over the last thirty to forty years shows that race and ethnicity are core mechanisms by which we order society. iv. a crt-based approach to lawyering can reduce the negative influence of implicit bias for criminal defendants the historic and contemporary experiences of people charged with illegal entry and drug trafficking described in earlier sections of this article reflect explicit and implicit racial animus. we see explicit animus in the lynching of mexicans in the southwest and the targeting of latinxs for drug prosecution in the early nineteenth century. likewise, mass deportations of mexicans, while excusing the illegal status of undocumented europeans, reflects 363 id. 364 alexander, supra note 357, at 12. 365 id. (“i use the term racial caste in this book the way it is used in common parlance to denote a stigmatized racial group locked into an inferior position by law and custom.”). no. 10:2] banished and overcriminalized 63 explicit racial animus. today, however, implicit biases reign supreme, as explicit racism is socially unacceptable.366 society preserves biases over long periods through generations.367 media plays an important role in teaching children about biases.368 adults also teach children, as the entire cultural system perpetuates lessons and ideas about what is favorable or desirable versus undesirable.369 fortunately, psychologists created the implicit association test (iat) to measure biases on sexuality, race, ethnicity, gender, weight, age, skin-tone, religion, disability, and career.370 these biases are rampant in all phases of the criminal justice process.371 they impact people charged with illegal entry and drug trafficking through interactions with criminal justice professionals.372 366 see elayne e. greenberg, fitting the forum to the pernicious fuss: a dispute system design to address implicit bias and ‘isms in the workplace, 17 cardozo j. conflict resol. 75, 76 (2015) (“implicit biases are actually an unconscious mirror of our ubiquitous societal biases.”) (citing eric mandelbaum, attitude, inference, association: on the propositional structure of implicit bias, 50 nous 629, 629 (2015)). 367 see implicit bias module series, kirwan inst. for the study of race & ethnicity (last visited mar. 21, 2020), http://kirwaninstitute.osu.edu/implicitbias-training/ (explaining the far-reaching societal impact of implicit bias in education, the criminal justice system, and aspects of our everyday lives). 368 id. 369 id. 370 id. 371 see reva b. siegel, race-conscious but race-neutral: the constitutionality of disparate impact in the roberts court, 66 ala. l. rev. 653, 657 n.19 (2015) (“ample evidence suggests that implicit bias is rampant. for instance, [iats], which measure the strength of association between categories such as black/white and good/bad by testing the reaction times of participants, have consistently shown that participants prefer white people and attributes.”). 372 id. trial courts can treat illegal entrants harshly. for example, a district court in arizona sentenced an immigrant to forty-eight months in prison for illegal entry after deportation. a court had previously convicted the defendant, ernesto garcia-barragan, of theft. united states v. garcia-barragan, 19 fed. appx. 527, 528 (9th cir. 2001) (“garcia-barragan appeals his 48-month sentence imposed following a guilty plea to illegal reentry of a previously 64 columbia journal of race and law [vol. 10:2 a practice method sensitive of crt mitigates bias by educating prosecutors, judges, and jurors.373 the following section discusses what a crt practitioner374 should do at initial appearance, bail hearings, preliminary hearings, disclosure review, voir dire, opening statement, and closing argument. the examples provided come from illegal entry and drug courier prosecutions, but defense lawyers can apply them to any charge involving a minority client. it will be difficult for some lawyers to begin to change their viewpoints and perspectives about race as their minds have cemented traditional ways of processing thoughts over decades. it is not easy to change thinking on issues of racism and implicit bias. any lawyer employing these strategies will also encounter judges unwilling to respond, or that may resist some or all of the ideas presented. one the other hand, these are important reasons for lawyers to begin a process of change through awareness, acceptance, and action. without a slow process of alteration, nothing in the system will improve. when a lawyer continues to bring arguments and information to judges and prosecutors about an important topic such as race, the hope is that change will happen, even at a slow pace. part ii has shown that persons charged with illegal entry and drug trafficking have been, in large part, the target of historical oppression and structural racism. the following sections on deported alien, in violation of 8 u.s.c. § 1326”). a district court in georgia sentenced another immigrant to thirty-seven months in prison followed by three years of supervised release. his criminal background included resisting arrest and illegal entry. united states v. castrillon-gonzalez, 77 f.3d 403, 404 (11th cir. 1996). 373 awareness of implicit biases is a first but very important step in mitigating its negative impact. see irene v. blair & mahzarin r. banaji, automatic and controlled processes in stereotype priming, 70 j. personality & soc. psychol. 1142, 1142–43, 1159 (1996) (mitigating the effects of implicit bias on behavior must involve awareness of implicit biases and motivation to behave in a non-prejudiced manner). 374 i also call these lawyers race-conscious lawyers, or critical race practitioners. the terms are interchangeable. no. 10:2] banished and overcriminalized 65 individual bias training and strategies to combat implicit bias in the courtroom, compared to such deep historical processes, may seem a bit small as a solution. one the other hand, this article is not about how to revolutionize society, but how individual defense lawyers begin to make change in the courtroom, client by client. a. initial appearance the lawyer should do everything he or she can to interview the client in order to obtain and verify information before the initial appearance.375 the lawyer should review the complaint and pretrial services report with the client, listen carefully, and take copious notes.376 she should be mindful that sometimes clients change stories based on fear, the mental impact of withdrawal from the influence of drugs or alcohol, or mistrust of the public defender or court-appointed lawyer.377 therefore, it is imperative to try to bond with the new client at the initial appearance so she can more easily gain trust early in the representation.378 during this early stage of the case, the lawyer should note what to follow up on through investigation, because witnesses’ 375 see douglas l. colbert, when the cheering (for gideon) stops: the defense bar and representation at initial bail hearings, 36 champion 10, 12 (2012) (“without access [to clients before the initial appearance], defenders do not stand much of a chance of influencing a judicial officer’s ruling.”). 376 michigan indigent defense commission, initial interview, 1–12 (spring 2017). 377 see gary s. gildin, testing trial advocacy: a law professor's brief life as a public defender, 44 j. legal educ. 199 (1994) (attempting to categorize types of clients the criminal defense lawyer is likely to encounter, including clients who may change stories for no reason or some who are perpetual liars). 378 see marcus t. boccaccini et al., development and effects of client trust in criminal defense attorneys: preliminary examination of the congruence model of trust development, 22 behav. sci. & l. 197 (2004) (underscoring the important ways that communication between people facing charges and their lawyers affects the charged individuals’ level of satisfaction with the relationship and the process, as well as their perceptions of system fairness and legitimacy). 66 columbia journal of race and law [vol. 10:2 memories quickly fade and helpful physical evidence may be lost or destroyed.379 the lawyer should interview witnesses who have insights regarding potential claims involving race, fourth amendment violations, evidence planting, or cross-racial identifications.380 b. detention hearing of all factors in the bail reform act, courts must give the least weight to the evidence against the person.381 courts must pay more attention to community ties, risk of flight, and, in some cases, dangerousness.382 the lawyer should be mindful of these requirements, and obtain details about the client’s living situation, employment, drug and alcohol abuse, and history of appearing for court. when necessary, the lawyer should attempt to determine whether criminal history contacts are minor and explain discrepancies to the court,383 the reasons why the client did not appear for a 379 see ryan walters, worth the toll? the dormant commerce clause's effect on statutory tolling based on a defendant's absence from the state in texas and other states, 62 baylor l. rev. 628, 631 (2010) (“when the discovery process begins early, the evidence obtained tends to be more reliable and easier to obtain because the witnesses’ memories are fresh and physical evidence is less likely to have been misplaced or have lost its evidentiary value.”). 380 see michigan indigent defense commission, supra note 376, at 4–5. 381 united states v. motamedi, 767 f.2d 1403, 1408 (9th cir. 1985) (holding that evidence against the person is the least important factor because court cannot make pretrial determination of guilt). 382 federal bail reform act, 18 u.s.c.a. §§ 3142(g)(1), (3)–(4). 383 see michael tonry, malign neglect—race, crime, and punishment in america 82 (1995) (“on both ethical and policy grounds, because of its implications for black americans, the war on drugs should never have been launched.” because many lower level criminal history contacts and convictions are the result of police attention in poor neighborhoods, this is fertile for investigation. if the judge does not understand that simple drug possession arrests and/or other misdemeanors or lower level felony convictions are the result of police misconduct or selective law enforcement conduct, these contacts will make it more difficult for courts to release clients. see also united states v. leviner, 31 f.supp.2d 23, 32–33 (d.mass. 1998) (holding that criminal history category v over-represented defendant's criminal record no. 10:2] banished and overcriminalized 67 hearing, and difficulties with transportation to court if there is a substance abuse problem that prevented her from attending court or other legitimate reasons. to combat the influence of racial stereotypes, the lawyer should obtain as many details as possible to present a counternarrative.384 judges are not used to this approach because most lawyers do not practice this way.385 the counter-narrative should focus on how the client is a reliable employee, good father, husband, or talented in a particular trade or hobby. this may require interviewing family members and calling witnesses at bail hearings.386 calling witnesses at bail hearings humanizes the client and makes it easier to create a narrative.387 it is not advisable to put the client on the stand at a bail hearing because the lawyer does not know her well at this point and may be unfamiliar with all the facts. putting the client on the stand could result in different statements by the client that the government could use against her at trial and lead to a potential perjury charge.388 the bail reform act states that the court, among other factors, shall consider the defendant’s “length of residence in the community [and] community ties.”389 the lawyer should gather as much information as possible about the social circumstances of because defendant's driving convictions were the result of pre-textual traffic stops or racial profiling). 384 walter i. gonçalves, narrative, culture and individuation: a defender’s race-conscious approach to reduce implicit bias for latinxs, 17 seattle j. for soc. just. (forthcoming 2019) (manuscript at 3–4). 385 russell g. pearce, white lawyering: rethinking race, lawyer identity, and rule of law, 73 fordham l. rev. 2081, 2089 (2005). 386 united states v. torres, 929 f.2d 291 (7th cir. 1991) (holding that courts shall allow witnesses to testify at bail hearings if the defense calls them). 387 see richard delgado, storytelling for oppositionists and others: a plea for narrative, 87 mich. l. rev. 2411, 2412–15 (1989) (maintaining that narratives and counter narratives provide a means for understanding differing pictures of events, especially those concerning disenfranchised minorities). 388 major timothy c. macdonnell, the miranda paradox, and recent developments in the law of self-incrimination, army law 37, 51 (may 2001). 389 federal bail reform act, 18 u.s.c.a. § 3142(g)(3)(a). 68 columbia journal of race and law [vol. 10:2 the neighborhood where the client grew up or lived.390 for example, if the government charges the client with drug trafficking and the client committed the crime because of duress, it may be worthwhile to investigate whether drug cartels recently committed acts of violence in the neighborhood or community where the client lived. lastly, the lawyer should educate judges and prosecutors whenever possible about racial disparities at bail hearings.391 when representing a minority defendant, the lawyer should file a written motion for release and supplement it with studies explaining racial disparities at these proceedings.392 c. preliminary hearing the crt approach asks lawyers to formulate a threedimensional view of the client to understand her from not only a legal perspective, but also a cultural, ethnic, racial, psychological, and socioeconomic viewpoint.393 the lawyer should attempt to uncover these layers during the preliminary hearing.394 the lawyer should 390 four pillars of holistic defense, bronx defenders, (nov. 15, 2010), https://www.bronxdefenders.org/the-four-pillars-of-holistic-defense/. 391 see rapping, supra note 7, at 1023 (“defense lawyers should be vigilant about identifying opportunities during the course of litigation to educate others about irb [implicit racial bias].”). 392 jeffrey j. rachlinski et al., inside the bankruptcy judge's mind, 86 b.u. l. rev. 1227, 1246 (2006). one example of such a study is ian ayres & joel waldfogel, a market test for race discrimination in bail setting, 46 stan. l. rev. 987 (1994). 393 christine zuni cruz, four questions on critical race praxis: lessons from two young lives in indian country, 73 fordham l. rev. 2133, 2143 (2005) (“knowledge of critical race theory brings awareness that in the context of power, race, color, and culture impact the legal situations of clients. there is always more to a client's legal situation than the technical legal matter.”). 394 see rodney j. uphoff, criminal discovery in oklahoma: a call for legislative action, 46 okla. l. rev. 381, 392–93 (“a preliminary hearing gives defense counsel a significant preview of the state's case”) (citing beard v. ramey, 456 p.2d 587, 589 (okla. crim. app. 1969) (recognizing discovery as a legitimate goal of a preliminary hearing and affirming the right of a defendant to discover evidence at the hearing)). no. 10:2] banished and overcriminalized 69 question government witnesses openly at this stage because there is no jury that will decide guilt or innocence.395 certain questions and answers might help the prosecutor and judge gain a better understanding of the client. at the preliminary hearing, the lawyer should pay attention to race issues that could relate to the theory of defense. for example, the defense attorney should observe whether there are any indications from government witnesses that law enforcement focused on the client due to her race, ethnicity, nationality, or neighborhood. the lawyer should also ask whether there are fourth amendment issues that arise for the first time at a preliminary hearing. the preliminary hearing is also a good place to investigate whether any witnesses, including police, were susceptible to cross-racial identifications, weapon focus, or any other factor that could influence a witness’s memory or identity of a suspect of color.396 when cross-examining officers, the lawyer should pay attention to the social history of the specific client.397 it is unlikely that agents will volunteer mitigating information on direct, but the 395 j. jervis wise, preparing a defense: understanding drug crimes and law enforcement, in defense strategies for drug crimes, 2014 wl 5465767, at *9 (aspatore 2015) (“[i]n jurisdictions in which preliminary hearings are conducted at the outset of cases, the questioning of law enforcement officers through more open-ended questions and less adversarial means can be an invaluable method for learning the facts of the case . . . .”). 396 see martinis m. jackson, timely death of the show-up procedure: why the supreme court should adopt a per se exclusionary rule, 56 how. l.j. 329, 348 (2012) (“memory malleability, race-bias, and weapon focus are three of many estimator variables that can affect the reliability of witness identifications; however, a defendant is not entitled to a preliminary hearing addressing these factors without some level of suggestiveness.”) (citing state v. henderson, 208 n.j. 208, 261 (2011), holding modified by state v. chen, 208 n.j. 307 (2011), holding modified by state v. anthony, 237 n.j. 213 (2019)). 397 but see neil p. cohen, law of probation & parole § 26:18 (2d) (stating that at least in the context of probation violations, the preliminary hearing is not traditionally a venue for discovering or presenting mitigating information; however defense counsel may ask questions and, if the court permits it, gain valuable information.) 70 columbia journal of race and law [vol. 10:2 defense lawyer should consider asking the following questions: was there any indication that the client was intoxicated or under the influence of any substance during any encounter? did the client seem unstable? did she say anything that did not make sense? it is also a good idea to ask the client before the preliminary hearing if the lawyer should pursue a specific line of questioning, and if so, to what extent.398 it is also advisable to ask the client if she is comfortable with questions relating to her race to support a defense theory, fourth amendment violations, or cross-racial identifications.399 similar to detention hearings, it is not advisable to put the client on the stand.400 the judge does not have to hear from the client at the hearing and may decline to consider any evidence by the defense if the prosecution meets its burden to prove charges by a preponderance of the evidence.401 398 see robin walker sterling, defense attorney resistance, 99 iowa l. rev. 2245, 2264 (2014) (“it will ‘frequently be the case’ that the client’s individual goals and criminal defense counsel’s systemic goals will be aligned.”) (citing rapping, supra note 7, at 1019). 399 id. 400 margareth etienne, the declining utility of the right to counsel in federal criminal courts: an empirical study on the diminished role of defense attorney advocacy under the sentencing guidelines, 92 calif. l. rev. 425, 459 (2004) (“one lawyer explained that he is reluctant to put his clients on the stand at a bond or preliminary hearing because the client might say something that may later be deemed false or failure to accept responsibility.”). in some jurisdictions, it may be malpractice to put defendants on the stand. united states v. frappier, 615 f. supp. 51, 52 (d. mass. 1985); united states v. ingraham, 832 f.2d 229, 237 (1st cir. 1987) (statements by defendant at detention hearing admissible at trial). see united states v. parker, 848 f.2d 61, 62 (5th cir. 1988) (no fifth amendment problem with the bail reform act). but see united states v. perry, 788 f.2d 100, 116 (3rd cir. 1986) (court should give defendant use immunity to protect fifth amendment right). 401 fed. r. crim. p. 5.1(e). “at the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired. if the magistrate judge finds probable cause to believe an offense has been committed no. 10:2] banished and overcriminalized 71 d. disclosure review the lawyer should review all disclosure with skepticism, keeping in mind officer bias against the accused when writing reports.402 the defense lawyer should translate this skepticism into a presumption of innocence of the client when reviewing disclosure, and follow up with disclosure requests, such as audio or video-recorded interviews, not received but referenced in initial reports, or any missing items of evidence within the government’s control relevant to the defense investigation.403 because all actors within the criminal justice system perceive clients of color differently, believing the case will go to trial during disclosure review assures minorities receive the same level of scrutiny as a wealthy white male criminal defendant.404 e. voir dire voir dire can be the most difficult part of trial because jurors are unpredictable.405 lawyers do not know what jurors will say, so thinking on one’s feet in response to juror answers is common. for this reason, coming up with follow-up questions can be a challenge. and the defendant committed it, the magistrate judge must promptly require the defendant to appear for further proceedings.” id. 402 see joseph citron & lawrence e. wines, medical conditions and diseases that can impact the dui investigation, in understanding dui scientific evidence, 2012 wl 4964557, at 1 (aspatore 2012) (“standard police reports are generally biased, calling for only bad evidence against the accused driver”). 403 for example, when reviewing potential fourth amendment claims, the defense lawyer should consider requesting statistics for traffic stops made by the border patrol if a drug seizure took place along a road at or near the border. the defense lawyer should determine whether someone of a different race made a pre-trial identification, including the law enforcement officer. 404 see kristin henning, race, paternalism, and the right to counsel, 54 am. crim. l. rev. 649, 685 (2017). 405 lori g. cohen, et al., make or break? using voir dire effectively, 58 no. 6 dri for def. 38 (2016). 72 columbia journal of race and law [vol. 10:2 the goal of voir dire for the defense is to learn as much damaging information as possible about jurors’ experiences on issues pertinent to the defense’s theory.406 with this information, the lawyer should decide whether to seek exclusion of particular jurors for cause and exercise peremptory strikes.407 research shows that raising race during voir dire and other phases of trial decreases the negative impact of implicit biases.408 for this reason, the lawyer should make jurors aware of race, even in a run-of-themill case.409 for jurors who have taken the iat, the attorney should say that they do not have to share test results publicly. the lawyer can use peremptory strikes or attempt to excuse for cause individuals not considered reliable, or people believed to carry negative implicit associations about minority groups. the majority of criminal cases charging a minority defendant do not involve a defense where race is at the forefront of the theory. the government occasionally accuses a client of color of victimizing a white person, or in which police officers planted evidence to arrest a person of color, but those are a minority. in these cases, judges have an easier time permitting voir dire on race issues. the more important question is how to prepare voir dire for a typical drug case. the lawyer should seek attorney voir dire and ask permission to inquire jurors about implicit bias.410 in support of 406 id. 407 id. 408 see samuel r. sommers & phoebe c. ellsworth, how much do we really know about race and juries? a review of social science theory and research, 78 chi.-kent l. rev. 997, 1026–27 (2003) (making race salient in jury voir dire can reverse the effects of implicit bias and influence the jurors' perceptions of the trial and their decisions). 409 see chris mooney, across america, whites are biased and they don't even know it, wash. post (dec. 8, 2014), https://www.washingtonpost.com/news/ wonk/wp/2014/12/08/across-america-whites-are-biased-and-they-dont-evenknow-it/ [https://perma.cc/3cqu-eprh] (noting that as of 2014, two million people had taken the iat). 410 see dale larson, a fair and implicitly impartial jury: an argument for administering the implicit association test during voir dire, 3 depaul j. for no. 10:2] banished and overcriminalized 73 a motion for attorney voir dire, the lawyer can cite studies showing that jurors are more willing to share information if the lawyer asks questions.411 she should seek permission to read a definition of implicit bias from an encyclopedia or well-known journal article defining the concept.412 once jurors hear a definition of implicit bias, she can ask whether anyone has heard of implicit bias and taken the iat. if no one has heard of implicit bias, the attorney or the judge should explain the main findings of implicit bias. these findings conclude that clients of color are perceived and judged differently, albeit implicitly. by recognizing this reality and becoming aware of the science, jurors decrease the negative impact of implicit bias in their decision-making as finders of fact.413 the lawyer can do several things to convince the judge to permit voir dire on race.414 she should mention that senior judge soc. just. 139, 166 (2010) (“[t]he american judiciary does not appear ready to listen to arguments that use implicit bias, despite the fact that these arguments are consistent with the stated and revered goals of voir dire.”). 411 see susan e. jones, judge-versus attorney-conducted voir dire: an empirical investigation of juror candor, 11 l. & hum. behav. 131, 145 (1987) (“[j]urors often distort their replies to questions posed during the voir dire.”). subjects in this study “changed their answers almost twice as much when questioned by a judge as when interviewed by an attorney.” id. at 131. the study also found that a “judge’s presence evokes considerable pressure toward conformity to a set of perceived judicial standards among jurors.” id. attorney conducted voir dire minimizes this pressure. id. 412 american bar association, what is implicit or unconscious bias? (apr. 15, 2019), https://www.americanbar.org/groups/litigation/initiatives/task-forceimplicit-bias/what-is-implicit-bias/ (offering two definitions that a court may read). 413 see regina a. schuller et al., the impact of prejudice screening procedures on racial bias in the courtroom, 33 law & hum. behav. 320 (2009) (particular types of reflective voir dire, which required individuals to answer an open-ended question about the possibility of racial bias, appeared successful at removing juror racial bias in assessments of guilt.). 414 denials for voir dire on race may be common. on the other hand, even if unsuccessful, at least the lawyer made the judge and prosecutor aware of 74 columbia journal of race and law [vol. 10:2 mark bennett, a pioneer in the field of courtroom bias, gave a powerpoint presentation on implicit bias to jurors at the outset of the case.415 the lawyer should also mention that the western district of washington spent over $50,000 in a video shown to all jurors in all civil and criminal cases.416 citing social science literature on the impact of race on voir dire in criminal cases is another strategy. the lawyer should bring these facts to the attention of the trial judge in support of voir dire on race, since no case law, outside of the death penalty context, requires courts to permit questions on race.417 f. opening statement defense lawyers should find a way to interweave race during opening, as making it salient during trial reduces jurors’ implicit biases.418 this can be difficult in a drug courier case unless important courtroom issues involving race. secondly, there is now a record for appeal. 415 see mark w. bennett, unraveling the gordian knot of implicit bias in jury selection: the problems of judge-dominated voir dire, the failed promise of batson, and proposed solutions, 4 harv. l. & pol'y rev. 149, 169 (2010) (discussing the use of a slide about implicit bias in a powerpoint presentation shown by the author before voir dire). 416 u.s. dist. ct., w. dist. wash., unconscious bias juror video (2017), http://www.wawd.uscourts.gov/jury/unconscious-bias [https://perma.cc/k365-qzy4]. jeffery robinson, director of the aclu trone center for justice and equality, said during a cle training where i was present that the video cost $56,000.00 to produce. he is one of the lawyers in the video. 417 turner v. murray, 476 u.s. 28, 36–37 (1986) (announcing a due process right to voir dire on race, but only in interracial crime cases, and only where the death penalty is at stake). 418 see donald bucolo, race salience in defense attorney opening and closing statements: the effects of ambiguity and juror attitudes (may 2007) (unpublished m.a. thesis, university of new hampshire). this study showed that emphasizing a defendant’s race during opening statements influences white jurors. in a case where the evidence is strong, when the defense lawyer made race salient, a jury is more likely to find the black defendant not guilty than a white defendant. the research also suggests that when lawyers do not no. 10:2] banished and overcriminalized 75 there is a nexus to race as part of the defense’s theory. in a typical drug case, where there is no nexus, the defense attorney can briefly allude to the nationality and ethnic makeup of the client. the attorney can say that the client is a latinx man, born in mexico, and use race as a way to discuss why a drug cartel targeted the client to transport drugs. the attorney can argue that drug traffickers believe the defendant conforms to profiles of people crossing the border at a particular time. in an illegal entry case,419 the defense lawyer can refer to the foreign nationality, race, or ethnicity of the defendant during opening by indicating where she is from, and emphasize her motivations for entering the united states. this is generally not objectionable unless the defense attorney emphasizes it more than once or makes it into a larger part of the opening.420 in these situations, the prosecutor or the judge will interrupt and object on grounds of relevance or improperly playing to the sympathies and emotions of jurors.421 g. closing argument make race salient more racist jurors will more likely find a black defendant guilty. other studies include samuel r. sommers & phoebe c. ellsworth, race in the courtroom: perceptions of guilt and dispositional attributions, 26 personality & soc. psychol. bull. 1367 (2000); samuel r. sommers & phoebe c. ellsworth, white juror bias: an investigation of racial prejudice against black defendants in the american courtroom, 7 psychol. pub. pol'y & l. 201 (2001). 419 illegal entry or re-entry cases are difficult to defend at trial. common defenses for illegal entry prosecutions include duress or that the government cannot prove the element that the government actually deported or removed the person from the united states. see robert j. mcwhirter & jon m. sands, a primer for defending a criminal immigration case, 8 geo. immigr. l.j. 23, 33–39 (1994). 420 fed. r. evid. 401. 421 id. 76 columbia journal of race and law [vol. 10:2 during closing argument, the lawyer analyzes the facts and law for the jury in a digestible format.422 a crt approach to closing requires the lawyer to incorporate race. the same points about race salience that apply in opening apply to closing.423 the difference is that by closing, jurors have heard all evidence and filtered it with a careful eye. jurors may have also heard the evidence in a more race-conscious way because of voir dire on implicit bias. a defense lawyer can incorporate race into a closing in a drug courier case by first repeating what the lawyer said in opening about the client’s background. this conjures issues discussed during voir dire. the lawyer should emphasize constitutional principles of equality and fairness based on social science research.424 this research concludes that emphasis on principles such as presumption of innocence, the government’s burden of proof, and equality for all reduce implicit bias during deliberations.425 422 walter i. gonçalves jr., tips and strategies for excellent closing arguments, crim. just. 48 (2018). 423 see evelyn m. maeder et al., race salience in canada: testing multiple manipulations and target races, 21 psychol. pub. pol'y & l. 442, 449 (2015) (part of the study included race salience in closing arguments finding that “among those who indicated that racial issues featured prominently in the trial (regardless of experimental manipulation), there were more not guilty verdicts.”). 424 see pamela a. wilkins, confronting the invisible witness: the use of narrative to neutralize capital jurors’ implicit racial biases, 115 w. va. l. rev. 305, 362 (2012) (“there are no simple answers, but, when crafting opening and closing arguments, counsel should carefully consider (1) how to prime themes based on fairness and equality, (2) how to incorporate counterstereotypical exemplars in the narrative, and (3) what kinds of schemas might ‘fit’ a client while supplanting jurors’ unconscious racial schemas.”). 425 see jerry kang, trojan horses of race, 118 harv. l. rev. 1489, 1503 (2005) (“[r]acial schemas are ‘chronically accessible’ and can be triggered by the target’s mere appearance, since we as observers are especially sensitive to visual and physical cues.”). actors can neutralize racial schemas through counter-schemas that are presented during closing arguments. see also nilanjana dasgupta & anthony g. greenwald, on the malleability of automatic attitudes: combating automatic prejudice with images of admired and no. 10:2] banished and overcriminalized 77 the defense attorney’s closing will come after the prosecutor’s argument, but it must stand on its own and not be a response to the prosecutor.426 the defense attorney should not only object if the prosecutor invokes jurors’ biases by mentioning subtle or obvious racial stereotypes, but also respond with a discussion of the dangers of implicit bias in her closing.427 during the defense closing, the lawyer should also let jurors know that the defense only gets one argument, whereas the prosecutor has an opportunity for rebuttal.428 this discussion should include an explanation of what proper and improper rebuttal is. this educates jurors about objections the defense may make. the closing is also an opportunity to go over jury instructions related to race. these instructions may include an implicit bias instruction similar or identical to the one used by senior district court judge mark bennett in northern iowa. the lawyer should also ask for a race-switching instruction.429 the instruction asks jurors to imagine the same scenario as the current case, but with disliked individuals, 81 j. personality & soc. psych. 800, 807 (2001) (implicit attitudes could be changed without conscious effort simply by exposing people to particular types of content). 426 gonçalves, tips and strategies for excellent closing arguments, supra note 422, at 50. 427 see praatika prasad, implicit racial biases in prosecutorial summations: proposing an integrated response, 86 fordham l. rev. 3091, 3094 (2018) (when prosecutors’ summations involve subtle references to race or racial stereotypes because of their own implicit biases, in an attempt to appeal to jurors’ implicit biases, or both, courts rarely detect and often dismiss the potential of prejudice influencing a decision.). 428 gonçalves, tips and strategies for excellent closing arguments, supra note 422. 429 see cynthia kwei yung lee, race and self-defense: toward a normative conception of reasonableness, 81 minn. l. rev. 367, 482 (1996) (the raceswitching instruction involves having the jurors imagine “the same events, the same circumstances, the same people, but switching the races of the parties” of the case.). see also giovanna shay, in the box: voir dire on lgbt issues in changing times, 37 harv. j.l. & gender 407, 443 (2014) (“[r]olereversals could be presented in opening statements and closing arguments, or given as a jury instruction.”). 78 columbia journal of race and law [vol. 10:2 the race or ethnicity of the actors switched, and to self-monitor whether they perceive the situation differently.430 h. sentencing ninety-seven percent of all federal cases result in a guilty plea in lieu of trial.431 the rate is even higher for illegal entry cases, where ninety-nine percent of clients plead guilty.432 this means that most courtroom work in federal criminal cases is in sentencing advocacy.433 the lawyer should develop a client’s biography to include not only mitigating factors, such as sexual abuse, domestic violence, mental health problems, and addictions, but also larger forces that shaped motivations for the person to become involved 430 james mccomas & cynthia strout, combating the effects of racial stereotyping in criminal cases, champion 24 (1999) (judge milton souter, in alaska, agreed to give jurors an instruction on “race-switching” before finalizing a verdict. judge souter noted that he “personally engaged in a raceswitching exercise whenever he was called on to impose a sentence on a member of a minority race to ensure that he was not being influenced by racial stereotypes.”). 431 darryl k. brown, the perverse effects of efficiency in criminal process, 100 va. l. rev. 183, 203 (2014) (“federal court guilty pleas as a portion of all convictions rose from 86% in 1970 to 97% in 2009. in the 1990s, the federal government instituted ‘fast-track’ plea bargaining policies designed to reduce the time required to resolve cases by guilty pleas. for the category of cases in which they did so first and most consistently—immigration-related crimes— plea rates rose to 99.4% by 2010”) (citing mark motivans, federal justice statistics 2009 statistical tables at 18 tbl.4.2, bureau of just. stat. (dec. 2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/fjs09st.pdf (96.7% of convictions resulted from guilty pleas in 2009)). . 432 id. 433 plea acceptance rates are ninety-seven percent and ninety-four percent in federal and state cases, respectively. erica goode, stronger hand for judges in the ‘bazaar’ of plea deals, n.y. times (mar. 22, 2012), http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-afterrulings-on-plea-deals.html. no. 10:2] banished and overcriminalized 79 in crime.434 for instance, in the case of illegal entry, this may include an explanation of specific economic conditions of the area the person lived and recent economic trends. if the person lost a job at a factory, the lawyer should research how american economic policies contributed to the closing of factories. although this research is not always easily accessible, it may be available through public economic reports, newspaper accounts, or interviews with local officials. the defense attorney can also conduct this analysis for drug couriers. most drug couriers agree to commit the crime for financial reasons.435 a critical race practice advises the lawyer to delve into economic, social, and personal factors that influenced her client’s decision-making. in the sentencing memorandum, the lawyer may wish to include a section at the end that explains implicit bias and provides the judge and prosecutor with online resources to learn more. i include this section in all sentencing memoranda involving minority clients. the sentencing presentation should highlight factors that neutralize reasons to impose a harsh sentence, an explanation of mitigating factors and why they justify a reduced sentence, and narratives that provide a counter-schema to mainstream viewpoints of the person. for example, in a drug sentencing involving a latinx person, a common perspective of the judge and prosecutor is that the person is a “latinx drug dealer,” “dangerous,” and “violent.”436 to combat these negative perspectives, the defense 434 see restructuring the plea bargain, 82 yale l.j. 286, 289 (1972) (“individualized sentencing looks for sentencing criteria to the totality of the defendant's circumstances—to the detailed facts of his crime and to his criminal and personal biography.”). 435 weber, supra note 88, at 1773. 436 see l. song richardson & phillip atiba goff, self defense and the suspicion heuristic, 98 iowa l. rev. 293, 310 (2012) (“latinos (or those appearing to be) are stereotyped as drug dealers, gang members, and undocumented immigrants . . . .”); see also ellen pao, reset: my fight for inclusion and lasting change, 86–87 (2017) (describing frequent jokes 80 columbia journal of race and law [vol. 10:2 lawyer should narrate a mitigating story of the client as a worker, father, coach, husband, or any other positive role.437 the defense attorney should accomplish this not only by interviewing the client, but also by obtaining character letters and even photographs showing the positive role of the person in her community.438 this individualizing information will go a long way in reducing negative implicit bias.439 v. conclusion beginning in the early twentieth century, when the federal government first created illegal entry and drug laws, the criminal justice system slowly began to overcriminalize the actions of couriers. at that time, the immigration system treated latinx immigrants differently than newly arrived europeans. overcriminalization of offenses committed by low-level couriers escalated in the 1980s with the war on drugs. banishment climaxed in the early part of the twenty-first century with crimmigration, the merging of the criminal and immigration systems. all of this took place despite couriers’ and illegal entrants’ low level of criminal threat and responsibility. the experience of couriers and illegal entrants, as seen through the lens of crt, shows that american society not only selected them for prosecution, harsh sentencing, and deportation, but also, at an earlier time, lynched them. couriers and migrants also experience multiple levels of prejudice as seen through intersectionality. these historical exploitations have made it easy for mainstream american culture to transmit implicit biases through several past generations to the present day. these processes led to about how all black and latinx people were drug dealers and all indians wore turbans, and comments conflating asian names). 437 wilkins, supra note 424, at 332–33. 438 see mark w. bennett & victoria c. plaut, looking criminal and the presumption of dangerousness: afrocentric facial features, skin tone, and criminal justice, 51 u.c. davis l. rev. 745, 801 (2018) (noting the importance of character letters for reducing racial priming at sentencing). 439 see doug passon, using moving pictures to build the bridge of empathy at sentencing, champion 14 n.2 (2014) (“[i]ncluding still photos in a sentencing memorandum can add layers of emotional depth to a sentencing story.”). no. 10:2] banished and overcriminalized 81 contemporary stereotypes, which criminal justice professionals are unequipped to mitigate. as there are presently no crt studies of illegal entrants and drug couriers, and few sets of tools for defense lawyers to mitigate implicit bias, this article begins a conversation to encourage scholars to pay more attention to biases against latinxs in federal criminal defense as a whole. a crt approach can begin a larger process of change within the criminal courts, starting with criminal defense lawyers, the only voice providing legal representation for migrants and low-level couriers. columbia journal of race and law vol. 11 july 2021 no. 3 article using peacemaking circles to indigenize tribal child welfare lauren van schilfgaarde & brett lee shelton† historical child welfare policies explicitly aimed to exterminate indigenous culture and disrupt tribal cohesion. the remnants of these policies form the foundation for the contemporary child welfare system. these policies view the child as an isolated and interchangeable asset, over which parents enjoy property-like rights, and in which the child welfare system is incentivized to “save” children from perceived economic, cultural, and geographic ills through an adversarial process. extended family, community members,  lauren van schilfgaarde (cochiti pueblo) is the san manuel band of mission indians director for the tribal legal development clinic at the ucla school of law. the clinic serves tribes and tribal organizations on a wide swath of project subject-matters, including family law, cultural resource protection, voting, justice systems, sacred places, and gender-based violence. van schilfgaarde previously served as the tribal law and policy institute’s tribal law specialist, which included facilitating technical assistance to tribal courts, including healing to wellness courts. van schilfgaarde currently serves as co-chair of the american bar association’s native american concerns committee, as a commissioner for the lawyers network commission of the center for reproductive rights, and as a board member of the doris duke charitable foundation child well-being program. she previously served on the board of the national native american bar association and the california indian law association. van schilfgaarde graduated from the ucla school of law in 2012 and from colorado college in 2008. van schilfgaarde was raised in albuquerque, new mexico, and is mother to aurora and jack bear. † brett lee shelton (oglala sioux tribe) is a senior staff attorney at the native american rights fund (narf) and also serves as an appellate court justice for a variety of tribal nations. his work at narf focusses on the indigenous peacemaking initiative, sacred places protection, and other cultural protection and religious liberty issues. brett has extensive experience representing and advising tribal governments, agencies, and enterprises in a wide variety of matters, as well as contributing legal advice and litigation support for various private individuals, businesses, tribal organizations, and development initiatives. he received his law degree from stanford university, and a master of arts from the university of kansas. 682 colum. j. race & l. [vol. 11:681 and cultural connections have minimal voice or value. these underpinnings inform federal policies that influence all child welfare systems, including tribal child welfare systems. the result is that tribal child welfare systems perpetuate the individual, rights-centric, adversarial child welfare system that harms indigenous families. indigenous children have the right to maintain connections to their indigenous family, tribal nation, culture, and cultural education. these rights translate into obligations the community owes to the child to ensure that these connections are robust. tradition-based systems of dispute resolution—frequently called “peacemaking,” among other names, but which we will call “circle processes”—offer a hopeful alternative. circle processes are rooted in an indigenous worldview that perceives an issue, particularly a child welfare issue, as evidence of community imbalance that directly impacts the community, and conversely, imparts an obligation on the community to respond. through the circle, family and community can complete their natural reciprocal relationship. tribal child welfare has the potential to be a transformative system that promotes community, family, and children’s health and the self-determination and sovereignty of tribes. this article outlines the ways in which the modern tribal child welfare system has been structured to compartmentalize families and perpetuate historical federal policies of indian family separation. this article then suggests that circle processes are a framework for re-indigenizing the tribal child welfare system to not just improve outcomes (for which it has the potential to do), but to also honor the interconnected, responsibilityoriented worldview of indigenous communities. ultimately, however, tribes should lead that re-indigenization process, whether through a circle process framework or otherwise. 2021] peacemaking circles 683 i. introduction ........................................................................ 684 ii. the child welfare system is an extension of antiquated and assimilative colonial policies ............... 686 a. historical federal indian child welfare policies ..... 686 b. child welfare as child saving ................................... 688 c. parental rights as property rights ........................... 690 d. the indian child welfare act ..................................... 693 e. pressures on tribal child welfare systems to westernize .................................................................... 696 iii. indigenizing child welfare ............................................... 702 a. a different world view (re)emerging ...................... 702 b. operationalizing duties: the circle .......................... 705 iv. conclusion .......................................................................... 708 684 colum. j. race & l. [vol. 11:681 i. introduction covid-19 has revealed a startling truth: the nuclear family cannot survive without the support of community and systems around it. for many indigenous1 communities, this truth is not so startling—it is obvious. the child’s well-being is dependent on the community, and the community’s well-being is dependent on the child. the connections and relationships between the child-parent nuclear family and the community should no longer be ignored; rather, they should be elevated and leveraged to once again support the family’s survival. indigenous children have the right to maintain connections to their indigenous family, to their tribal nation, and to their culture and education in that culture.2 for indigenous communities, these rights translate into obligations the community owes to the child to ensure these connections are robust. but, the child welfare system as applied to indigenous communities originated with the goal to separate indigenous children from their indigenous parents and culture. the child welfare system today operates as a remnant instrument of colonization, prolonging outdated and misguided efforts to assimilate indigenous children away from their own cultures. moreover, continued utilization of adversarial and individualcentric principles in family matters tends to harm children more than help them, and this is true in both indigenous and non-indigenous settings. the result is additional unnecessary harms to the well-being of children that are already in harm’s way. these harms could be avoided, and child welfare outcomes 1 we use the terms “indigenous” and “indigenous people” to refer to the american indian, alaska native, and native hawaiian original inhabitants of what is now the united states of america. we additionally use terms such “native,” “native american,” and “indian,” particularly as they reference other documents and policies. we use these terms interchangeably, seeking to be inclusive and respectful of the peoples and tribes that represent them. we note, however, that indigeneity is both a political and a racial status, with overlapping and distinct legal meanings. while federal policies frequently impact indigenous children regardless of their political status, the ability of tribal child welfare systems to operate and respond depends on the political sovereignty of tribal nations. 2 g.a. res. 61/295, united nations declaration on the rights of indigenous peoples, ¶ 12, (sept. 13, 2007). see also kristen a. carpenter & lorie m. graham, human rights to culture, family, and self-determination: the case of adoptive couple v. baby girl, in indigenous rights in international law (stefan kirchner & joan policastri eds., forthcoming). 2021] peacemaking circles 685 actually supported and enhanced, if tradition-based systems of dispute resolution—frequently called “peacemaking,” among other names, but which we will call “circle processes”—were employed in the child welfare context. many tribes operate their own child welfare systems, and many are attempting to employ circle processes in child welfare cases within their jurisdictions. generally, circle processes are facilitated family forums in which, because of an issue or incident, the impacted parties and their families gather to discuss the issue(s) and develop a resolution by consensus. the extended family and community are included in the forum to actively participate within the assessment and case planning process, providing substance to the active efforts families are owed in their effort to reunify. circle processes are rooted in an indigenous worldview that perceives an issue, particularly a child welfare issue, as evidence of community imbalance that directly impacts the community, and conversely, imparts an obligation on the community to respond. through the circle, family and community can complete their natural reciprocal relationship. tribal child welfare has the potential to be a transformative system that promotes community, family, and children’s health and the self-determination and sovereignty of tribes. however, rather than centering a circle-like process, or even providing space for its inclusion, the tribal child welfare system is compelled to mirror its non-tribal child welfare system counterparts. the typical modern tribal child welfare system tends to be an outgrowth of colonial systems aimed towards separation and removal, and is thus detached from indigenous child welfare practices and approaches. contemporary federal funding requirements exacerbate this poor fit because they further pressure tribal systems towards a model of adversarial, permanency-oriented processing, similar to non-tribal systems. this article outlines the ways in which the modern tribal child welfare system has been structured to compartmentalize families and perpetuate historical federal policies of indian family separation. this article then suggests that circle processes are a framework for re-indigenizing the tribal child welfare system to not just improve outcomes (which it has the potential to do), but to also honor the interconnected, responsibility-oriented worldview of indigenous communities. ultimately, however, 686 colum. j. race & l. [vol. 11:681 tribes should lead that re-indigenization process, whether through a circle process framework or otherwise. ii. the child welfare system is an extension of antiquated and assimilative colonial policies a. historical federal indian child welfare policies government intrusion into indigenous families is rooted in a long history of federal policies designed to separate indigenous children from their families, communities, and cultures. the federal approach to indigenous children either morphed or simply galvanized into a deep-seated perception that indigenous parenting is problematic and should be liberally disrupted. the impacts of these policies are still being felt by indigenous children today.3 throughout the nineteenth and early twentieth centuries, official u.s. policy towards indigenous communities, and more particularly their children, was forced assimilation,4 save for occasional periods when extermination was the explicit goal.5 as a component of assimilation, the u.s. commission of indian affairs advocated for the forcible removal of indigenous children from their tribes as “the only successful way to deal with the ‘indian problem.”6 subsequently, of course, forcible removal of children from a group has been defined as genocide,7 but it was 3 lorie m. graham, reparations, self-determination, and the seventh generation, 21 harv. hum. rts. j. 47, 48 (2008) (noting we are just one generation removed from the landmark enactment of the indian child welfare act. under haudenosaunee law, “we have six more generations to consider before we can truly understand the full impact of this law”). 4 see native am. rts. fund, trigger points: current state of research on history, impacts, and healing related to the united states’ indian industrial/boarding school policy 5–17 (2019), https://www.narf.org/nill/documents/trigger-points.pdf [https://perma.cc/8kf65rv6] (encapsulating federal assimilation policies towards native american children from 1618 through the 1970s). 5 for an in-depth examination of extermination policies in just one region, see benjamin madley, american genocide: the united states and the california indian catastrophe 1846–1873 (2016). 6 h.r. rep. no. 104–808, at 15 (1996) (citing an 1867 report to congress). see also native am. rts. fund, supra note 4, at 6, 8–9. 7 g.a. res. 260 a (iii), united nations convention on the prevention and punishment of the crime of genocide, art. 2 (dec. 9, 1948); united nations declaration on the rights of indigenous peoples, supra note 2, art. 7.2. 2021] peacemaking circles 687 rationalized as the compassionate alternative to extermination in earlier times. from early colonial missions to federally-sponsored boarding schools, education was the primary means of separating indigenous children from their families and communities.8 the explicit intent was to eradicate indigenous culture, and it was accomplished through prohibitions on speaking indigenous languages, practicing indigenous religions, partaking in cultural practices, and visiting parents and families.9 cultural eradication was enforced through mandatory boarding school as well as through the creation of a separate court system, the court of indian offenses, and the department of interior’s promulgation of civilization regulations outlawing traditional cultural practices in 1884, 1894, and 1904.10 conditions in the schools were frequently less than sanitary or humane, and efforts to disband them gained traction in the latter half of the twentieth century. however, rather than identify assimilation through the separation of families as a failed goal, schools were merely identified as a failed means. assimilation transitioned to the realm of child welfare. the thinking was that indigenous children would be better off in non-indigenous households wherein they would be further exposed to american values, customs, and lifestyles. their assimilation would thus be more successful.11 conversely, missing out on this americanization opportunity by remaining in indigenous communities and their attendant poverty was not just failed assimilation, but neglect. between 1958 and 1967, the children’s bureau, the bureau of indian affairs, and the child welfare league of america facilitated the indian adoption project.12 indigenous children were specifically identified and tagged for adoption, cultivating an adoption market specifically 8 graham, supra note 3, at 51; native am. rts. fund, supra note 4, at 5–13. 9 graham, supra note 3, at 52; native am. rts. fund, supra note 4, at 5–6, 8–9, 12–13. 10 michael mcnally, defend the sacred: native american religious freedom beyond the first amendment 40–61 (2020). 11 david fanshel, far from the reservation 119 (1972). 12 press release, u.s. dep’t of the interior, bureau of indian affs., indian adoption project increases momentum (apr. 18, 1967), https://www.indianaffairs.gov/as-ia/opa/online-press-release/indian-adoptionproject-increases-momentum [https://perma.cc/ed3a-9grz]. 688 colum. j. race & l. [vol. 11:681 for indigenous children.13 during this time, child welfare systems were shockingly successful in removing children from their parents and cultures.14 b. child welfare as child saving indigenous child-rearing is not the only cultural practice to be devalued, perceived as in conflict with the dominant society, and subsequently conflated with child neglect.15 but for indigenous families, the stage has been set for hundreds of years; outside institutions, with both nefarious and altruistic intentions, have scorned, scrutinized, interfered with, and dismantled indigenous families. this systemic invasion is rationalized in part by the system’s perceived obligation to “save” indigenous children through ensuring their exposure to “american values.” the contemporary child welfare system unfortunately is an outgrowth of its assimilation-driven past—structuring a system that is largely operated by community outsiders, with a high tolerance for removals, and a bias against the culture and contexts of these families. as susan brooks and dorothy roberts note, this is because the system at large, and in line with its application to indigenous children, continues to be guided by a hubristic drive for “child saving.”16 the driving force to “save children” presumes a set of conditions from which children must 13 id. (“it was a record year for the project … temporarily, because of increased interest, there are more prospective parents than there are indian children referred to the project for adoption.”). 14 problems that american indian families face in raising their children and how these problems are affected by federal action or inaction: hearings before the subcomm. on indian affairs of the comm. on interior and insular affairs, 93d cong., 2d sess., 4 (1974) the association on american indians affairs submitted their 1969 report showing that in most states with large american indian populations, roughly 25 to 35 percent of indian young people had been separated from their families, and that indian children were much more likely to experience out-of-home placement than non-indian children. id. 15 dorothy roberts & lisa sangoi, black families matter: how the child welfare system punishes poor families of color, appeal (may 26, 2018), https://theappeal.org/black-families-matter-how-the-child-welfare-systempunishes-poor-families-of-color-33ad20e2882e/ [https://perma.cc/wem7-cjh3] (“parenting choices, such as whether to co-sleep with an infant or whether to leave an older child unattended at home, are routinely questioned and held against black mothers in family court.”). 16 susan l. brooks & dorothy e. roberts, social justice and family court reform, 40 fam. ct. rev. 453 (2002). 2021] peacemaking circles 689 be saved. today, those conditions are largely poverty-induced, which is used to justify taking children away from their families and communities, regardless of the extent of maltreatment or the trauma of removal (or the historical contexts that contribute to correlations between poverty, race, and tribal lands). the child welfare system often equates poverty with neglect, resulting in distressingly disproportionate removals.17 while the explicit goal of eradicating tribes might have dimmed by the time of the indian adoption project, the underlying assumptions regarding indigenous inferiority remain ingrained in child welfare to this day. not only are indigenous families most likely to live in poverty,18 their customs and lifeways are also more susceptible to suspicion. studies evaluating child welfare practices as applied to indigenous children in the 1960s and 1970s found that the vast majority of removals were based on vague grounds like “neglect” or “social deprivation.”19 congress noted in its 1978 legislative findings to support the indian child welfare act that non-indian social workers were frequently not just culturally inept, but perceived indigenous deviations from the nuclear family, including western modes of parenting and discipline or even simply living on tribal lands, as grounds for removal.20 today, despite forty years of concentrated federal efforts to combat this bias,21 removal of indigenous children from their homes remains disproportionately and tragically high.22 17 id. 18 american indian and alaska native heritage month: november 2017, u.s. census bureau (oct. 6, 2017), https://www.census.gov/content/dam/ census/newsroom/facts-for-features/2017/cb17-ff20.pdf [https://perma.cc/84j9gwas]. american indians and alaska natives have a poverty rate of 26.2 percent, the highest rate of any racial group. id. 19 morris k. udall, establishing standards for the placement of indian children in foster or adoptive homes, to prevent the breakup of indian families, and for other purposes, h.r. rep. no. 1386 at 10 (1978). 20 id. 21 see indian child welfare act of 1978, 25 u.s.c. § 1901. 22 nat’l indian child welfare assoc., time for reform: a matter of justice for american indian and alaskan native children 1 (2007) (“the over representation of ai/an children can be two to three times the rate of other populations in some states.”). 690 colum. j. race & l. [vol. 11:681 c. parental rights as property rights after identifying a child in need of saving, the system has eased the justification for the extreme remedy of removal by divorcing the family from their community and context and instead viewing them as isolated actors. families are recast essentially into “property owners.” this framework not only dehumanizes children and dilutes our duties owed to them as people, but it also undercuts any potentially meaningful community or extended family support system that might have otherwise been available to parents. in the legal roots of the american system, children were considered to have no rights.23 instead, parents, fathers in particular, were considered to exert full dominion over their children.24 under ancient roman law, fathers had the right to kill their children,25 and in the massachusetts bay colony, children could be put to death for disobeying their parents.26 the legal concept of “family” is rooted in a property construct in which the rights are exclusively held by the parents to provide “care, custody, and control.”27 while contemporary parental rights are no longer expressed in explicit property terms, they are nevertheless still approached within this framework. to remove a child from a parent’s custody is to challenge the parent’s right 23 see e.g., skinner v. oklahoma, 316 u.s. 535 (1942) (holding that the right to marry, establish a home and rear one’s children as one deems fit are among one’s basic civil rights guaranteed by the fourteenth amendment); pierce v. soc’y of sisters, 268 u.s. 510 (1925) (finding that parents’ rights to direct the upbringing and education of children under their control is fundamental); meyer v. nebraska, 262 u.s. 390 (1923) (holding that a parent has a fundamental constitutional right in directing the upbringing and education of their child). 24 samantha godwin, against parental rights, 47 colum hum. rts. l. rev. 1, 31 (2015). 25 id. (citing william blackstone, commentaries on the laws of england 452 (edward christian ed., 15th ed. 1809) (“the antient [sic] roman laws gave the father a power of life and death over his children.”)). 26 id. (citing robert regoli et al., delinquency in society: the essentials 14 (2010)). 27 dara e. purvis, the origin of parental rights: labor, intent, and fathers, 41 fla. state u. l. rev. 645, 649 (2014) (citing troxel v. granville, 530 u.s. 57, 65 (2000) (describing “care, custody, and control” as “perhaps the oldest of the fundamental liberty interests recognized by this court.”)). see also pierce, 268 u.s. at 534–35 (holding that a statute requiring public school enrollment unconstitutionally and “unreasonably interfere[d] with the liberty of parents . . . to direct the upbringing and education of children under their control”); meyer, 262 u.s. at 399–400 (holding that a statute barring foreign language instruction unconstitutionally violated parents’ liberty interests). 2021] peacemaking circles 691 to exert decision-making control over that child. indeed, the child welfare system purports to assume that same decision-making authority in such instances. framing parental rights as property rights creates a number of challenges for child welfare. first, a focus on the child’s well-being quickly transforms into an antagonistic polarity between parents and the system. the adversarial framework pits the parents against the court and service providers. like the criminal justice system, parents are compelled to deny all allegations, frequently delaying the provision of services because parents deny having any problems. worse, for parents to even access some of these programs, including ones they seek and would benefit from, they are often forced to first relinquish custody of their children.28 compounding the adversarial conundrum, social workers troublingly operate as both coercive investigators and the provider of services.29 their ability to offer support is undermined by their intimidating role in initiating removal.30 for indigenous families, the threatening perception of social workers is all too familiar, reinforcing generations of mistrust.31 second, the child welfare system frames parenting as an isolated system, occurring solely within the privacy of the home. western values of individualism and self-efficacy reinforce this notion.32 challenges that parents may experience are seen as compartmentalized and private issues, devoid of any systemic influences, and thus parents are left to attempt to remedy them on their own. child welfare responses are therefore structured as “programs,” “classes,” and “choices” that parents can use to earn back the right to care and control their child again. if parents 28 dorothy e. roberts, child welfare’s paradox, 49 wm. & mary l. rev. 881, 893 (2007). 29 id. at 886. 30 id. at 887. 31 see terry l. cross, child welfare in indian country: a story of painful removals, 33 health affs. 2256 (2014); angela sterritt & paisley woodward, ‘judged and ashamed’: indigenous parents describe scrutiny, mistrust of social workers, cbc news, https://www.cbc.ca/news/canada/ british-columbia/judged-and-ashamed-indigenous-parents-describe-scrutinymistrust-of-social-workers-1.5059294 [https://perma.cc/e4seff23?type=image] (apr. 9, 2019). 32 sheri freemont, gold standard lawyering for child welfare systeminvolved families: anti-racism, compassion, and humility, guardian, winter 2020, at 1. 692 colum. j. race & l. [vol. 11:681 fail, they are perceived to lack commitment or willingness to do what it takes to get their children back, despite the lack of culturally appropriate services.33 removing the child is therefore not just in the child’s “best interest”: it is a punitive response to parents that no longer deserve the right to parent. third, by framing parental rights as property rights, the extended family and community are effectively barred from any role as relevant actors who might help the child. the tragedy of this shift stems from the fact that, in reality, communities impact children’s development, well-being, and life chances.34 numerous indigenous communities have codified the connection between children and the community as an explicit value.35 yet, the community is rarely considered when evaluating a child’s removal or placement, or what responsibility the community has to the child, including ensuring a healthy placement and healthy reunification. instead, social workers are often strangers to the community, and their cultural ignorance can lead to inappropriate removals.36 caseworkers exert extensive decisionmaking authority, with minimal accountability to the community they serve. meanwhile, when children are removed, they tend to not just be removed from the family, but also from the entire community. generations of systemic poverty, violence, and the myriad collateral consequences of these destructive cycles make 33 see, for example, the family first prevention services act of 2018, in which congress seemingly acknowledged the inapplicability of evidence-based practices to indigenous children by permitting tribal child welfare systems to operate “services and programs that are adapted to the culture and context of the tribal communities served.” 42 u.s.c. § 679c(c)(1)(e). 34 dorothy e. roberts, the community dimension of state child protection, 34 hofstra l. rev. 23, 26 (2005) [hereinafter roberts, community dimension] (citing david b. mitchell, building a multidisciplinary, collaborative child protection system: the challenge to law schools, 41 fam. ct. rev. 432, 436 (2003)). 35 see, e.g., tulalip tribes juvenile & fam. code, ch. 4.05.020 (“the tulalip tribes endeavors to protect the best interest of indian children by . . . maintaining the connection of children to their families, the tribes, and tribal community when appropriate); oglala sioux tribe child & fam. code, wakanyeja na tiwahe ta woope § 401.4 (listing expressed purposes of the child and family code, including “to provide services and cultural support to children and families to strengthen and rebuild the oglala lakota nation”). 36 h.r. rep. no. 1386, supra note 19, at 10 (“in judging the fitness of a particular family, many social workers, ignorant of indian cultural values and social norms, make decisions that are wholly inappropriate in the context of indian family life and so they frequently discover neglect or abandonment where none exists.”). 2021] peacemaking circles 693 the availability of background check-proof households sparse in indigenous communities.37 this is exacerbated by the increased number of multi-generational, cohabitational households, further decreasing opportunity for community involvement by shrinking the pool of available foster care and permanent homes. d. the indian child welfare act these child welfare system deficiencies are not a mystery. in fact, congress recognized these failings as they specifically applied to indigenous people and enacted the indian child welfare act (icwa). stirred by the shocking extent to which indigenous children were being removed, recognizing that cultural bias, the lack of a tribal role, and a systemic embrace for removal all converge to exacerbate this loss, and after years of advocacy by leaders from indigenous communities,38 congress formally enacted icwa in 1978.39 icwa was a rare instance of the united states leading international evolution in legislation concerning native affairs. almost three decades later, the united nations’ 2007 declaration on the rights of indigenous peoples (the declaration) called for not just preventing the removal of indigenous children, but recognizing the right of indigenous “families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child.”40 thus, icwa started the united states down a child welfare path that is now better illuminated by international normative guidance. that guidance provides that not only must the systemic removal of indigenous children end, but indigenous peoples must be directly involved in the 37 courtney lewis, pathway to permanency: enact a state statute formally recognizing indian custodianship as an approved path to ending child in need of aid cases, 36 alaska l. rev. 23 (2019). 38 h.r. rep. no. 1386, supra note 19, at 9 (“surveys of states with large indian populations conducted by the association on american indian affairs (aaia) in 1969 and again in 1974 indicate that approximately 25–35 percent of all indian children are separated from their families and placed in foster homes, adoptive homes, or institutions. in some states the problem is getting worse: in minnesota, one in every eight indian children under 18 years of age is living in an adoptive home; and in 1971–72, nearly one in every four indian children under 1 year of age was adopted.”). 39 indian child welfare act, 25 u.s.c. § 1901. 40 united nations declaration on the rights of indigenous peoples, supra note 2, at annex. 694 colum. j. race & l. [vol. 11:681 reunification process. today, icwa is considered the gold standard of child welfare policy.41 through icwa, congress attempted two critical structural changes to state court proceedings: (1) it affirmed the importance of tribal control and decision-making in child welfare;42 and (2) it attempted to slow the high rate of removals by raising the standards to be met before children could be removed and by increasing the amount and quality of services offered to parents. countering the lack of a community role in typical child welfare, icwa provides standing for tribes through exclusive tribal jurisdiction for indian children located on tribal lands43 and the right to intervene44 or have cases transferred to tribal court for children located off tribal lands.45 providing for tribal participation is seemingly nominal—responsive to the child’s dual citizenship and respectful for their legal and cultural ties to the tribal community. but, it is also revolutionary, providing tribes a meaningful opportunity to ensure their children are not lost and to communally care for them—both of which are in line with the calls of the declaration. beyond tribal participation, icwa embraces a groundbreaking philosophical shift for child welfare. for example, icwa requires that before an indian family can be broken up, the court must prove that staying with their family would result in “serious emotional or physical damage” to the child, regardless of any conflicting lesser state standards.46 this combats potential impacts of “feelings” that an indigenous child might be better off in a non-indigenous setting. the court must then use “active efforts” to provide remedial services and rehabilitative programs and prove that they were unsuccessful before terminating any parental rights.47 “active efforts” has been repeatedly held to be a higher standard than the 41 freemont, supra note 32, at 2 (citing brief for casey programs and 30 other organizations working with children, families, and courts to support children’s welfare as amici curiae supporting appellants at 2, 3, 5, brackeen v. haaland, 994 f.3d 249 (5th cir. 2021) (no. 18-11479) (en banc)). 42 lyscha marcynyszyn et al., american indian title iv-e application planning process: tribal progress, challenges, and recommendations (2012). 43 25 u.s.c. § 1911(a). 44 25 u.s.c. § 1911(c). 45 25 u.s.c. § 1911(b). 46 25 u.s.c. §§ 1912(e)–(f). 47 25 u.s.c. § 1912(d). https://sct.narf.org/documents/brackeen_v_bernhardt/lower_courts/5th-banc-merits-amicus-casey.pdf https://sct.narf.org/documents/brackeen_v_bernhardt/lower_courts/5th-banc-merits-amicus-casey.pdf https://sct.narf.org/documents/brackeen_v_bernhardt/lower_courts/5th-banc-merits-amicus-casey.pdf http://www.casey.org/media/americanindiantitleive.pdf http://www.casey.org/media/americanindiantitleive.pdf http://www.casey.org/media/americanindiantitleive.pdf 2021] peacemaking circles 695 “reasonable efforts” required under most state laws for all other child welfare cases,48 countering inclinations that parents bear the burden of proving they have earned back the right to parent. further, should terminating parental rights be unavoidable, icwa provides for adoptive and foster care placement preferences that prioritize maintaining the child’s connection to their extended family, other members of their tribe, or, if those placements are not feasible, other indians.49 icwa explicitly acknowledges and values the relationship between the child and their extended family and community. like the parents, the extended family and community have standing and accompanying obligations baked into the law. even after over forty years, icwa provides a useful, forward-looking, human rights framework for conceptualizing and structuring tribal child welfare. removal should be situated as a dire last resort. systems should shoulder the burden of actively servicing families towards reunification. extended families and communities should be prioritized as the optimal placements. critically, tribes and their communities should have an active role in case-planning and decision-making. in both icwa’s focus on reunification and its space for tribal participation, there are structural opportunities for indigenous innovations, such as a circle process. however, since icwa philosophy does not reflect mainstream child welfare, the implementation of icwa has been met with resistance. icwa compliance has been and continues to be sporadic,50 and state systems continue to poorly serve indigenous communities.51 among numerous calamitous 48 see, e.g., state v. jamyia m. (in re jamyia m.), 791 n.w.2d 343 (neb. ct. app. 2010) (holding that exceptions in the state’s “reasonable efforts” statute did not apply in icwa cases, where the “active efforts” standard governs); state ex rel. c.d., 200 p.3d 194, 205 (utah app. 2008) (noting that “the phrase active efforts connotes a more involved and less passive standard than that of reasonable efforts”). 49 25 u.s.c. § 1915(a)–(b). 50 see david e. simmons, nat’l indian child welfare ass’n, improving the well-being of american indian and alaska native children and families through state-level efforts to improve indian child welfare act compliance 2 (2014); kathryn e. fort, observing change: the indian child welfare act and state courts, n.y. state bar assoc. fam. l. rev., spring 2014, at 1. 51 see, e.g., oglala sioux tribe v. van hunnik, 100 f.supp.3d 749 (s.d. 2015) (holding that pennington county, south dakota, systematically violated http://childwelfaresparc.org/wp-content/uploads/2014/10/improving-the-well-being-of-american-indian-and-alaska-native-children-and-families.pdf http://childwelfaresparc.org/wp-content/uploads/2014/10/improving-the-well-being-of-american-indian-and-alaska-native-children-and-families.pdf http://childwelfaresparc.org/wp-content/uploads/2014/10/improving-the-well-being-of-american-indian-and-alaska-native-children-and-families.pdf http://childwelfaresparc.org/wp-content/uploads/2014/10/improving-the-well-being-of-american-indian-and-alaska-native-children-and-families.pdf 696 colum. j. race & l. [vol. 11:681 consequences, this means notice to tribes and tribal participation are also sporadic. in addition, icwa faces constant and numerous legal attacks, including challenges to its constitutionality.52 almost as if icwa does not exist, the child welfare system continues to disproportionately remove children of color and those in poverty and process their cases with cool neutrality.53 even when states do attempt to implement the act,54 the provisions of icwa and the child welfare policy they embody must compete with other conflicting federal child welfare policies that more closely resemble typical “child saving” tendencies to intervene and remove. these conflicting policies trickle down to tribes, impacting the child welfare systems operated by tribes. e. pressures on tribal child welfare systems to westernize tribal child welfare and court systems are operated by hundreds of tribes, and are continuously growing in quantity, size, and sophistication. tribes have experimented with adjustments to the child welfare model, such as embracing customary adoption, extended family care, and guardianship as culturally appropriate paths to permanency.55 yet, much like indigenous families, tribal systems have been heavily pressured to assimilate to western forms, despite icwa. in effect, because of various modern and historical federal structures designed to the rights of indian parents and tribes in state child custody proceedings). but see oglala sioux tribe v. fleming, 904 f.3d 603 (8th cir. 2018) (dismissing the claims, holding that the district court should have abstained from exercising jurisdiction under principles of federal-state comity). 52 see, e.g., brackeen v. haaland, 994 f.3d 249 (5th cir. 2021) (no. 1811479) (en banc). 53 roberts & sangoi, supra note 15 (“every day . . . [families are subject] to extraordinary scrutiny and vilification. these judges and officials use consequences of poverty . . . as evidence of child neglect. family members who have prior criminal or family court involvement are deemed risks to their children, without any consideration for the well-documented overcriminalization of poor black communities.”). 54 for example, while all states are mandated to comply with icwa, several states have enacted their own versions of icwa into state law. see, e.g., michigan indian family preservation act, mich. comp. laws § 712b.3 (2012); nebraska indian child welfare act, neb. rev. stat. § 43.1503 (2015); minnesota indian family preservation act, minn. stat. ann. § 260.755 (west 2017); washington indian child welfare act, wash. rev. code ann. § 13.38.040 (west 2017). 55 barbara ann atwood, permanency for american indian and alaska native foster children: taking lessons from tribes (ariz. legal studs., discussion paper no. 08-22, 2008). 2021] peacemaking circles 697 maintain control, including funding streams, tribal child welfare systems often look more like federal systems operated by tribes rather than being tribal in nature. tribes have had little to no choice in the matter. tribal governments were initially denied any recognition under u.s. law, the absence of which was used to justify the systemic dispossession of indigenous land and sovereignty.56 the modern advent of tribal courts was through the court of indian offenses, which was originally designed to regulate away indigenous culture.57 after centuries of assault, removal, and diminishment, tribal self-government was finally acknowledged and encouraged under u.s. law in the 1934 indian reorganization act (ira).58 the ira promoted tribal selfgovernance, and often the reemergence of self-governance after centuries of assault. however, through template constitutions and model codes, the ira promoted a particular westernized flavor of tribal self-governance. it was thought that “legitimate” tribal governments should look like non-tribal local, state, and federal governments. congress subsequently continued its pressure to westernize tribal systems through statutes like the indian civil rights act of 1968.59 tribal child welfare systems have similarly been pressured to operate in a palatable, western format. like many state systems, this pressure is most acutely felt when accessing federal funds. the federal government has a responsibility to assist tribes in meeting the service needs of tribal citizens pursuant to its federal trust responsibility.60 the federal 56 see, e.g., johnson v. m’intosh, 21 u.s. 543, 590 (1823) (holding that because indians are “fierce savages” they lack property interests in their land beyond occupancy rights, and that europeans and subsequently americans, by nature of discovery, possess legal title); cherokee nation v. georgia, 30 u.s. 1, 33 (1831) (holding that because tribes “are in a state of pupilage,” their sovereignty is tempered and does not rise to the level of foreign nation to satisfy diversity jurisdiction). 57 vine deloria, jr. & clifford m. lytle, american indians, american justice 113 (1983); mcnally, supra note 10, at 40–61. 58 pub. l. no. 73-383 (1934) (codified at 25 u.s.c. § 461 et seq.) 59 25 u.s.c. §§ 1301–04. 60 the origins of the federal-tribal trust responsibility are indirect, but generally stem from treaty obligations and the “guardian-ward” dynamic articulated in cherokee nation, 30 u.s. at 17, 33 (1831). cohen’s handbook of federal indian law § 5.04(3)(a) (nell jessup newton et. al., eds., 2019). it has subsequently evolved into a federal trust responsibility towards tribes that includes “exacting fiduciary standards.” seminole nation v. united states, 316 698 colum. j. race & l. [vol. 11:681 government provides funding to tribal systems through a variety of different federal departments. in many ways, tribes are disproportionately dependent on federal funding, due in part to a lack of meaningful taxation revenues.61 tribal child welfare systems, predominantly via the tribal courts, have access to some funding through the bureau of indian affairs62 and the department of justice’s coordinated tribal assistance solicitation.63 but, these funds tend to be sporadic, minimal, and reserved for select federally-endorsed programming. beginning in 1975, in response to paternalistic and inefficient federal programs, the federal government altered its funding mechanism to allow for substantially more selfdetermination for tribes within select funding streams. the indian self-determination and education assistance act of 1975 and its progeny authorize the department of interior and the department of health and human services to contract directly with tribes.64 under these contracts, tribes use federal funds to operate the programs that federal agencies otherwise would provide, such as police departments and hospitals. subsequent amendments allowed more flexibility in design of services delivered under the contracts. known as self-governance, this federal framework allows for more localized control, and is considered to be a model for building culturally-responsive, u.s. 286, 297, 297 n.12 (1942) (payment of money to agents known to be dishonest violated private trust law standards). the trust responsibility is a lens through which federal legislation and policy aimed towards tribes should be evaluated, including child welfare. 61 see, e.g., urging the secretary of the treasury to assist in ending dual taxation of economic activity in indian country, nat’l cong. of am. indians res. #abq-19-015 (2019) (noting that current case law creates “an intolerable burden of dual taxation on tribal economic activity”). 62 the bureau of indian affairs provides limited tribal court funding through tribal justice support tribal court assessments. see tribal court assessments, u.s. dep’t of interior, bureau of indian affs., https://www.bia.gov/cfrcourts/assessments [https://perma.cc/l7m2-x6va] (last visited feb. 27, 2021). 63 the u.s. department of justice offers short-term, competitive grants to tribes for a variety of justice-related programs. none of the programs are child welfare-specific, though funds could be used for court services which could include a child welfare docket. see grants/ctas, u.s. dep’t of just., tribal just. & safety, https://www.justice.gov/tribal/grants [https://perma.cc/vxw4hu56] (last visited feb. 27, 2021). 64 25 u.s.c. §§ 5301–423. https://www.bia.gov/cfrcourts/assessments https://www.bia.gov/cfrcourts/assessments https://www.bia.gov/cfrcourts/assessments https://www.justice.gov/tribal/grants https://www.justice.gov/tribal/grants 2021] peacemaking circles 699 efficient, and accountable systems that best serve tribal communities.65 regrettably, though, tribes are not able to access federal funds for tribal child welfare through self-governance.66 instead, the limited funding that is provided in this area is dispersed primarily through title iv of the social security act.67 titles iv-b and iv-e of the social security act68 provide core funding for both state and tribal child welfare systems. title iv-e garners the far larger funding stream69 and supports a behemoth bureaucracy for which tribes were likely an afterthought. as such, tribes did not have an opportunity to directly access funds in this system until 2008.70 even with this direct access, only one tribe has accessed funds and only seventeen tribal plans for access have been approved, leaving the 65 see, e.g., support for tribal self-governance within the department of transportation, nat’l cong. of am. indians res. msp-15-016 (2015) (describing self-governance, in advocating for expanding self-governance to the department of transportation, as allowing “for greater tribal flexibility and effectiveness in the use of federal funds” and that “federal programs are more efficiently implemented and expended than when federal officials exercised oversight rather than direct administration”). 66 see 25 u.s.c. §§ 5381, 5399. self-governance compacts with the department of health and human services (dhhs) are limited to programs administered through the indian health service, and therefore do not include programs within the children’s bureau. dhhs recommended a demonstration project to compact for these programs, but proposed legislation died after passing the senate indian affairs committee. see s. rep. no. 108-412 (2004); hearing on reforming the indian health care system before the s. comm. on indian affs., 111th cong. 8–10 (june 11, 2009) (statement of valerie davidson). 67 byron l. dorgan et al., ending violence so children can thrive 147 (2014) (describing how states receive disproportionately more funding for prevention and child protection programs, while tribes receive minimal federal support). see also u.s. dept. of health & hum. servs. off. of the assistant sec’y for planning & evaluation, federal foster care financing: how and why the current funding structure fails to meet the needs of the child welfare field (2005). 68 42 u.s.c. §§ 620–29, 670–79. 69 marcynyszyn, supra note 42, at 9. 70 the fostering connections to success and increasing adoptions act, 110th cong., pub. l. no. 110-351 (2008) the process for accessing title iv-b funds is separate, and can be accessed directly, though after a tribe submits a five-year plan, annual progress and service reports, and meets mandated requirements. see id. see also barbara van arsdale et al., 17a federal procedure § 42:907 (2020). (title iv-b funding is notoriously far less than title iv-e funds.) 700 colum. j. race & l. [vol. 11:681 opportunity largely unrealized.71 tribes that have gone through the process have identified numerous barriers to accessing the funds.72 tribes are essentially required to substantially meet the same requirements as states.73 this includes the massive bureaucracy necessary to monitor and operate child welfare systems across a state as captured in the “pre-print” title iv-e plan.74 the vast remainder of tribes, if they access title iv-e funds at all, access those funds through tribal-state agreements.75 while tribes have had some success in obtaining these agreements, the historical foundation underlying tribalstate collaboration is fraught with challenges.76 for example, tribes are not components of the state government, and so states may be clumsy in coordinating with tribes as sovereign entities rather than subservient branches of state government. they may face logistical barriers such as incompatible computer systems.77 states may feel compelled to require tribes to report outcomes to the state, to adopt state requirements even beyond federal requirements, or to waive tribal sovereign immunity.78 notably, 71 see tribes with approved title iv-e plans, children’s bureau, admin. for child. & fams. (feb. 27, 2021), https://www.acf.hhs.gov/cb/grantfunding/tribes-approved-title-iv-e-plans [https://perma.cc/8hzg-q67s]; marcynyszyn, supra note 42. 72 marcynyszyn, supra note 42. 73 emilie stoltzfus, cong. rsch. serv., r42792, child welfare: a detailed overview of program eligibility and funding for foster care, adoption assistance and kinship guardianship assistance under title iv-e of the social security act 4–5 (2012). 74 capacity bldg. ctr. for tribes, pathways to tribal title iv-e: tribal title iv-e options 5–6 (2017). 75 as of 2008, there were approximately ninety tribes with tribal/state agreements, and seventy of these allowed for either one of a combination of maintenance, administrative, or training activities funded by title iv-e. tribal child welfare funding findings, nat’l child welfare res. ctr. for tribes, http://www.nrc4tribes.org/tribal-child-welfare-funding-findings.cfm [https://perma.cc/kfp9-pfpe]. 76 see generally jack f. trope & shannon keller o’loughlin, a survey and analysis of select title iv-e tribal-state agreements (2014). 77 id. at 6 (noting a delay in the navajo nation receiving payment from the state of arizona because their computer system was not sufficiently updated). 78 id. at 5, 7 (noting all eleven tribal-state agreements in alaska require federally recognized tribes to waive sovereign immunity and comply with state law and that california’s “tribal child welfare services plan” includes requirements beyond federal law). https://www.acf.hhs.gov/cb/resource/tribes-with-approved-title-iv-e-plans 2021] peacemaking circles 701 title iv-e includes a waiver provision for innovation demonstration projects (such as circle processes).79 yet, very few tribal-state agreements allow tribes to participate in such programs.80 tribal advocates have sought modifications to title iv-e, largely unsuccessfully, to make the process more relevant to the realities of tribal characteristics and differences in structures of tribal governance.81 in addition to bureaucratic challenges, title iv-e, far more than title iv-b, requires the incorporation of a model of child welfare that prioritizes distant and urgent processing, which tends to expedite the termination of parental rights. for example, title iv-e funding requires the termination of parental rights if a child has been in foster care for fifteen out of the last twenty-two months.82 while such a requirement helps ensure children do not languish in the child welfare system, it also artificially pressures families. not only does this “fifteen-month rule” seemingly conflict with icwa’s philosophy of supporting reunification and numerous tribal policies that explicitly denounce termination,83 but it is also contradictory to recent trends in child welfare that deprioritize the termination of parental rights.84 rather than empower tribes to design their own systems, as is especially needed to counter the impacts of decades of disastrous indigenous child welfare policy, title iv generally restricts funding through overwhelming bureaucracy, requires significant federal and state oversight, and requires the adoption of antiquated child welfare policies. however, while the funding streams should most certainly be updated to better respond to 79 42 u.s.c. § 1320a-9. 80 trope & keller o’loughlin, supra note 76 at 44 (noting the oregon-tribal agreements allow tribal participation in the state federallyapproved waiver programs). 81 marcynyszyn, supra note 42. 82 42 u.s.c. § 675(5)(e). 83 see e.g., tribal customary adoption, nat’l child welfare res. ctr. for tribes, http://www.nrc4tribes.org/tribal-customary-adoptionresources.cfm [https://perma.cc/xl2u-83ys] (last visited feb. 19, 2021) (“[t]raditionally, . . . tribes did not practice termination of parental rights. tribal customary adoption is the transfer of custody of a child to adoptive parents without terminating the rights of the birth parents.”). 84 see e.g., family first prevention services act, pub. l. no. 115-123, 132 stat. 64 (2018) (authorizing for the first time the use of federal child welfare funding under title iv-e for prevention services). 702 colum. j. race & l. [vol. 11:681 tribal needs, such as through self-governance, there are current opportunities. tribes are already demonstrating the capacity to run their own child welfare systems. the direct title iv-e funding stream, once accessed, allows tribes significantly more flexibility to design their own systems. for example, tribes can develop their own standards for when a child is in need of care, and create whatever tribal court structure works best for them.85 but, tribes require meaningful access to funds to design such tribal systems that offer culturally relevant family services within a responsive tribal, rather than state or federal, bureaucracy. iii. indigenizing child welfare a. a different world view (re)emerging in the logging industry, commercial clearcutting used to be considered the healthiest strategy for harvesting timber. “without any competitors, the thinking went, the newly planted trees would thrive.”86 instead, they were frequently more vulnerable to disease and climatic stress than trees in old-growth forests. it turns out, seedlings severed from the forest’s underground lifelines are much more likely to die than their networked counterparts.87 much like a child welfare system rooted in an individual-centric, property-based framework, specialists had emphasized the perspective of the individual while failing to account for the influence of the community. like an old-growth forest, indigenous families are not isolated trees. they are part of a vast, ancient, and intricate society that is connected, communicative, and interdependent. these connections should be leveraged. the view of the interrelatedness of the various inhabitants of a forest is reflective of an indigenous approach to the world in general, and this worldview carries over with respect to children. the core focus is on connection, rather than individualism. fortuitously, though likely not coincidentally, the reemergence of this indigenous perspective coincides with 85 jack f. trope, title iv-e: helping tribes meet the legal requirements (2010). 86 ferris jabr, the social life of forests, n.y. times mag. (dec. 2, 2020), https://www.nytimes.com/interactive/2020/12/02/magazine/treecommunication-mycorrhiza.html [https://perma.cc/2msx-fgee]. 87 id. 2021] peacemaking circles 703 burgeoning family systems theory.88 also like the forest, family systems theory requires the court to shift from viewing parents as isolated actors and instead see them as part of a living system, where members are its interacting parts. a family systems approach requires courts to take into consideration the whole family, broadly defined, in making decisions about a child.89 the very concept of rights can seem foreign to indigenous thinking. rather than based on rights, indigenous worldviews90 can broadly be described as based on four other “r-words”: responsibilities, relationships, reciprocity, and respect. from an indigenous perspective, rights are only relevant when there is a corresponding responsibility. that is, a “right” is really just what one might use to describe what should happen, if another person upholds a responsibility towards the first person. the responsibility is primary and rooted in the relationship between the parties. in fact, in typical indigenous worldviews, the responsibilities are primary elements, while rights are derivative. increasingly aware of the ill fit and inherent flaws of the colonial social constructs and structures they have been encouraged to adopt for centuries, many indigenous communities now seek to return to ways that reflect their own worldviews, cultures, and spiritual understandings.91 this is true with 88 similarly, the growth of restorative or therapeutic justice is coinciding with the reemergence of indigenous traditional dispute resolutions. scholars are just beginning to study the complex influences restorative justice movements are having on tribal systems, and vice versa. the development is promising for both indigenous peoples and non-indigenous people alike. see justice as healing: indigenous ways (wanda d. mccaslin ed., 2005); joseph thomas flies-away & carrie garrow, healing to wellness courts: therapeutic jurisprudence+, 2013 mich. state l. rev. 403 (2013). 89 brooks & roberts, supra note 16, at 455. 90 it is, of course, impossible to distill a continent and millennia of indigenous wisdom. it is not even desirable. indigenous peoples comprise thousands of distinct cultures, languages, and philosophical approaches. nevertheless, particularly in contrast to western values and norms, and after centuries of being lumped together, we endeavor to promote a “pan-indian” child welfare perspective solely to argue for the opportunity for tribes to be allowed to further experiment with their own approaches. 91 tribes thread a difficult needle: they must build tribal law that is both responsive to traditional needs, customs, and traditions, while also relevant and tolerable to federal indian law pressures. tribes are nevertheless thriving. see generally matthew l.m. fletcher, american indian tribal law (2d ed. 2020). 704 colum. j. race & l. [vol. 11:681 respect to child welfare, perhaps most markedly. rather than orient around rights to children, indigenous systems orient around duties owed to children. these duties not only include ensuring children’s safety, but also ensuring children’s meaningful access to their families, tribes, and culture. thus, what the colonial models frame as rights should be re-framed, through the recovering of indigenous lifeways and worldviews, as responsibilities. these responsibilities exist because we are connected. kinship is one of the main ways that tribal duties and rights are expressed. an individual’s relationships to the people in one’s family, including extended family and sometimes clans, bring certain responsibilities and expectations. extended family, such as grandparents, aunts, uncles, and cousins, often play a part in the life of a child. further, tribal relations extend out to include clans, lineages, and tribe. dispute and conflict among tribal members are often expressed as a violation of the norms surrounding the rights and duties they owe each other as kin.92 the oglala sioux tribe’s child protection code, wakanyeja na tiwahe ta woope, provides one example of these epistemological differences in practice.93 in overhauling its own children’s code, the tribe replaced discussion of parental rights with sections comprehensively outlining “traditional children’s rights” and “traditional family rights.”94 closer examination reveals that those sections describe important relationships that are to be preserved, values to be applied, and responsibilities deriving from the values and responsibilities described.95 the important inquiry, in these efforts, is what is most needed by the child or children at issue. this article proposes that a facet of this reorienting include a diversion away from the adversarial and coldly neutral court to a circle process addressing child welfare concerns. by allowing emphasis on the duties that parents, extended families, and communities owe to children, tribes can use systems that will prove more beneficial overall to their children, and provide models for states and other tribes to 92 justin b. richland & sarah deer, introduction to tribal legal studies 220–22 (3d ed. 2016). 93 see oglala sioux tribe child & fam. code, wakanyeja na tiwahe ta woope § 403 (2007). 94 id. 95 id. 2021] peacemaking circles 705 consider. such innovation will have the added benefit of facilitating the implementation of the rights conceived under the declaration, including the child’s right to their family, tribe, and culture.96 critically, this same reorientation is not exclusive to indigenous children and has already benefitted child welfare cases elsewhere. for example, out of home placements reduced significantly once a circle process program was implemented in washtenaw county court in michigan.97 this is hopefully only the tip of a continent-sized iceberg of promising potential. b. operationalizing duties: the circle removal of family and community from natural roles as decision-makers in matters of child welfare and replacing them with third parties with no relationship to the children involved is one of the more fatal flaws of the current child welfare system. alleviating this flaw will result in more beneficial decisions, and more support for implementation of those decisions. circle processes of various sorts—sometimes called, for example, peacemaking or family group decision-making—provide process alternatives to the federally-mandated succession of review hearings. circle processes are quite simple in that the basic model is to gather people together to have honest discussions about difficult issues and seek resolutions. the goal is to achieve consensus about what should be done moving forward.98 because consensus is the basis of the final outcome, that outcome has full support of all involved.99 96 united nations declaration on the rights of indigenous peoples, supra note 2. see also carpenter & graham, supra note 2. 97 see, selected kids count indicators for county in michigan, kids count data ctr., annie e. casey found., https://datacenter.kidscount.org/data/customreports/3824/any [https://perma.cc/2u98-z7az] (last visited june 14, 2021) (providing data for washtenaw county, michigan, compared to michigan as a whole). 98 robert b. porter, strengthening tribal sovereignty through peacemaking: how the anglo-american legal tradition destroys indigenous societies, 28 colum. hum. rts. l. rev. 235, 242 (1997). 99 id. at 243. see also ada pecos melton, indigenous justice systems and tribal society, in justice as healing: indigenous ways 108, 116 (wanda mccaslin ed., 2005) (“the agreement reached in family and community forums are binding. the same interlocking obligations established in individual and community relationships compel participants to comply.”). 706 colum. j. race & l. [vol. 11:681 roughly put, a circle process can be seen as a restorative justice alternative to the “hammer” of the court. the circle process demotes court actors that are intentionally unfamiliar with the family and gives primacy back to non-neutral stakeholders who frequently are excluded from, or have diminished roles in, child welfare hearings—such as extended family and community members.100 these stakeholders are naturally more motivated to look after their own relative’s wellbeing, and more capable and motivated to hold others accountable to finalized decisions.101 the circle provides those persons, along with the parent(s), the space to speak as a core component of the analysis and the process, rather than as ancillary parties. they, as opposed to the court, collectively design a case plan. similarly, the circle, as opposed to the court, is empowered to hold itself accountable pursuant to their duties owed to the child.102 the hammer of the court can continue to exist, an opt-out option for cases when the circle is unsuccessful, and consensus decisions of circle processes can be adopted as court orders.103 by allowing the circle process a chance to operate before formal court hearings, not every family issue is automatically treated as a 100 incorporating the extended family and community is not just about leveraging the resources of the community, but comporting to an indigenous worldview about how the community is impacted and the corresponding duties the community owes to the family. see wanda d. mccaslin, introduction: reweaving the fabrics of life, in justice as healing: indigenous ways, supra note 99, at 87, 89 (“indigenous people tend to interpret hurtful actions less individualistically and more as signs of imbalances within the community as a whole—imbalances that affect everyone.”). 101 melton, supra note 99, at 117 (noting the “distributive nature of this process engages the extended family as a resource for the offender, the victim, and the community. the community joins in the effort to resolve problems, to ensure compliance, to provide protection, and to retain ownership of the problems”). 102 id. at 115 (“[i]n many tribal communities, parents and the extended family are expected to nurture, supervise, and discipline their children. when parental misconduct occurs . . . the family forum . . . extensively invokes the distributive aspect of responsibility to ensure the children’s protection and to monitor and enforce proper parental behavior and responsibility, which the family regulates.”). 103 judge l.s. tony mandamin, peacemaking and the tsuu t’ina court, in justice as healing: indigenous ways, supra note 99, at 349, 354 (noting “if an offender decides not to enter peacemaking, then the matter stays in court. if the matter is not accepted into peacemaking or if the offender fails to cooperate with the peacemaking process, then the peacemaker coordinator will return the matter to court.”). 2021] peacemaking circles 707 nail. when circle processes are implemented this way, the benefits to children are underscored by research establishing factors that promote childhood well-being.104 simply put, circle processes promote well-being. traditional indigenous dispute resolution yields outcomes that are more sustainable in and of themselves.105 the basis of outcomes is consensus—all those involved must agree to what will happen, including the parents.106 this, in turn, provides an entire circle of support and accountability, which helps make sure responsibilities identified and assigned as part of a solution to a problem are indeed fulfilled. for example, grandparents and other extended family members, in a child welfare case, will have been part of the discussion of the problem and development of the solution. they are aware of the circumstances leading up to the failure to provide for the child, including the systemic and generational challenges pressing on the family. if the solution requires certain things of the parents to better serve the children, those other relatives are there to ensure that the parents uphold their responsibilities. perhaps more importantly, those same circles of relatives are also there to provide support so that everyone, including the parents, can uphold their responsibilities to the children. and those support circles will have already been alerted to the heightened possibility that such support might be needed. as connected components of the family, connected to and thereby owing duties to the child(ren), the participants of the circle are bound by the circle just like the parents. they are also more likely to be culturally competent, circumventing the explicit biases of the nineteenth century, and the more implicit but still harmful biases of the twentieth and twenty-first centuries. as an 104 roberts, community dimension, supra note 34, at 28 (noting community-based initiatives that leverage the strengths of families and communities, that try to respect cultural norms, and engage in partnerships with neighborhood organizations, are taking hold in some pilot projects). 105 porter, supra note 98, at 255 (“prior to contact with the european colonists, indigenous people had little choice but to accept and live by the norms established by their communities.”). see also majidah m. cochran & christine l. kettel, rehabilitative justice: the effectiveness of healing to wellness, opioid intervention, and drug courts, 9 am. indian l. j. 75 (2020). 106 robert yazzie, “life comes from it”: navajo justice concepts, 24 n.m. l. rev. 175, 185 (1994) (“consensus makes the process work. it helps people heal and abandon hurt in favor of plans of action to restore relationships.”). 708 colum. j. race & l. [vol. 11:681 added process, serving an intermediary role in the otherwise still adversarial child welfare case, the circle is an opportunity with minimal risk. they manifest the active efforts that state courts so frequently dread providing.107 the circle offers the community an opportunity to participate, and thereby leverage opportunities to ensure the child remains connected to the community. in line with the declaration, the community is directly involved in the child welfare process. in fact, the collaborative and supportive problem-solving focus on which circle processes are based likely augments resilience (that is, the ability to manage future challenges) in both child and parent. commonly recognized resilience factors that might be fostered for parents in circle processes include emotional regulation, perception of control and ability to impact one’s own life, self-efficacy, social and communication skills, and likely others. 108 these benefits, in turn, make the parent(s) better able to create resilience factors commonly recognized as beneficial within a child’s family, including lower family stress, better parenting skills, and parental mental health. finally, to the extent that circle processes involve others beyond the nuclear family, they can foster resilience factors for children and parents both that flow from the community, including supportive extended family engagement, close community, social support, possibly spiritual community connections, and others.109 to summarize, then, employing circle processes can foster resilience factors in the lives of children and parents both, on multiple levels, and improvements for parents also flow through to the children. iv. conclusion allowing circles processes to operate with respect to tribal children is a natural continuation of momentum that resulted in 107 see cohen’s handbook of federal indian law, §§ 11.01, 11.07 (nell jessup newton et al., eds., 2019) (noting state and federal courts have taken opportunities to interpret icwa narrowly, such as through the judiciallycreated icwa exception known as the “existing indian family doctrine”). 108 parenting for brain, resilience in children and resilience factors, 2021, https://www.parentingforbrain.com/resilience/ [https://perma.cc/rk9355sr] (may 15, 2021) (listing commonly recognized resilience factors). 109 phil lane, jr., et al., mapping the healing journey: first nations research project on healing in canadian aboriginal communities, in justice as healing: indigenous ways, supra note 99, at 369 (noting personal and community healing journeys go hand in hand). 2021] peacemaking circles 709 the enactment of icwa. moreover, this is actually part of a larger push, worldwide, to turn back colonial systems that have perpetrated genocide, sometimes cultural, sometimes full-scale, against any indigenous peoples that stood in resistance. actions such as the declaration reveal a push to correct what may be corrected among the impacts of the errant colonial policies. these errant policies have seeped into the entire child welfare system, pressing for a stranger-led, adversarial, individualand rightscentric inquisition over the recognition of our connections. tribes have been pressured into this western format. the way out of the antiquated child welfare system is to allow tribes to lead. tribes can, by reinvigorating their traditional child welfare systems, and thereby re-indigenizing those systems, show others what a child welfare system premised on interrelationships, and on honoring responsibilities to children, can do. the need to throw out antiquated child welfare systems will be even more clear once more examples of success have developed. such development can be nurtured through targeted funding and the dampening of conflicting policies. laws such as icwa demonstrate how these international human rights precepts might be implemented through domestic action.110 implementation of circle processes will be another step in the same healing direction. 110 graham, supra note 3, at 50. 710 colum. j. race & l. [vol. 11:681 columbia journal of race and law vol. 15 may 2025 no. 1 article jim crow north and fair housing enforcement1 charles s. bullock, iii2 charles m. lamb3 abstract this article investigates how federal, state, and local government agencies enforce the federal fair housing act of 1968 (also known as title viii of the civil rights act of 1968) in northeastern states, which are referred to here as the jim crow north. focusing on data obtained from the u.s. department of housing and urban development (hud) under the freedom of information act (foia), this study measures the extent to which the thirteen northeastern states—from maine to virginia—decided fair housing act complaints in favor of black and latinx americans from 1989 to 2010. part i presents a historical snapshot of fair housing law and policy in the jim crow north. part ii examines the federal legal response to residential discrimination and segregation nationwide. part iii explains the theory and methodology for calculating favorable outcomes 1 we thank kezia otinkorang, aileen mckinstry, amanda lu, and the columbia journal of race and law team for their exceptional editorial assistance. direct correspondence to charles m. lamb, clamb@buffalo.edu. copyright 2025 charles s. bullock, iii, and charles m. lamb. 2 distinguished university professor of public and international affairs. richard b. russell chair in political science. josiah meigs distinguished teaching professor. university of georgia. 3 research professor. department of political science. university at buffalo, suny. former equal opportunity specialist and fair housing monitor, office of federal civil rights enforcement, u.s. commission on civil rights. mailto:clamb@buffalo.edu 2025] jim crow north 1194 made by federal, state, and local governments in northeastern title viii complaints. part iv provides the results of the favorable outcome analysis for black and latinx americans. part v spotlights new york and new jersey to better understand their low rates of favorable outcomes in fair housing act complaints. the conclusion discusses the study’s findings and suggests some explanations. the analysis leads to three key takeaways. first, it reveals considerable variations in favorable outcomes across the jim crow north, even between adjacent states with similar demographic traits. such outcome variations suggest that governmental jurisdictions’ support for title viii complainants can differ noticeably and that the region, state, or locality in which a person files a fair housing act complaint makes a difference. second, black complainants are most likely to win their title viii claims in federal region i (connecticut, maine, massachusetts, new hampshire, rhode island, and vermont). in contrast, latinx people are most likely to obtain favorable outcomes in federal region iii (delaware, maryland, pennsylvania, virginia, and west virginia). third, black and latinx complainants are least likely to win title viii claims in federal region ii, which consists of new york and new jersey. because of this third finding, the article then explores aspects of law, race relations, and public policy in new york and new jersey to help explain their low rates of favorable outcomes in fair housing act complaints. four facts about new york and new jersey are considered: their comparatively high levels of (1) residential, (2) school, and (3) economic segregation, as well as (4) their lack of local jurisdictions participating in hud’s fair housing assistance program (fhap). our analysis assumes that if subnational governmental decisions primarily represent the demands of people and groups with the most influence at the state and local levels, and if residential, educational, and economic segregation are the preference of many people and 1195 colum. j. race & l. [vol. 15:1193 groups in new york and new jersey, civil rights agencies in these states will likely respond by deciding a relatively low percentage of fair housing act complaints in favor of black and latinx complainants. because of data limitations, the analysis cannot directly measure the individual effects of residential, educational, or economic segregation on the decisions of fhap agencies, so it cannot prove that one or more of these four factors cause region ii’s low favorability rates. nonetheless, the results suggest that such a causal link is plausible. given this conclusion, this article proposes four recommendations for region ii. first, working closely with hud, governors, mayors, and business leaders, new york and new jersey should develop new incentive programs to dramatically increase the number of certified local fhap agencies. second, congress and the current presidential administration should make certain that funds and other resources are available to new local fhap agencies in new york and new jersey to enforce the fair housing act effectively. third, hud should play an aggressive role in helping all local jurisdictions in new york and new jersey participate in fhap, including the drafting of new local fair housing laws that are substantially equivalent to title viii. finally, congress and hud should hold all fhap agencies to a higher standard of enforcement performance in race and national origin title viii cases generally. unfortunately, in light of the re-election of president donald trump in 2024, these recommendations must await a future administration and a congress far more sympathetic toward fair housing rights. there is a reasonable chance that fair housing law and policy in the united states will experience turmoil throughout the remainder of the second trump administration, and perhaps beyond. depending on what occurs over the next few years, some of the progress made in equal housing opportunity over the past seven decades is in jeopardy. 2025] jim crow north 1196 table of contents introduction .................................................................................................................................. 1197 i. a historical snapshot ....................................................................................................... 1201 ii. the legal response ............................................................................................................ 1210 a. federal laws ............................................................................................................................. 1210 b. enforcing title viii .................................................................................................................. 1213 iii. theory and methodology ........................................................................................................ 1216 a. assessing favorable outcomes ................................................................................................ 1216 b. research assumptions .............................................................................................................. 1219 iv. the northeastern states ........................................................................................................ 1222 a. region i: the new england states .......................................................................................... 1222 b. region iii: the mid-atlantic south ........................................................................................ 1224 c. region ii: the mid-atlantic north .......................................................................................... 1226 d. comparing regions................................................................................................................... 1229 v. new york and new jersey ........................................................................................................ 1230 a. residential segregation ............................................................................................................ 1230 b. educational segregation........................................................................................................... 1235 c. economic segregation .............................................................................................................. 1237 d. the lack of local fhap agencies .......................................................................................... 1239 conclusion……………………………………… …………………………………………1240 1197 colum. j. race & l. [vol. 15:1193 introduction housing segregation has defined the lives of racial and ethnic minorities in urban america for much of the united states’s history.4 the country’s political and legal systems have failed to eliminate the segregated housing patterns that plague our nation.5 no breakthrough is in sight—only a pattern of modest decline in segregation, so segregation will remain a divisive feature of american democracy for decades to come.6 and although flagrant residential discrimination has declined since the 1970s,7 more subtle practices have arisen to take their place,8 making housing discrimination a moving target.9 as one discriminatory practice is diminished or contained, another emerges and spreads. therefore, douglas massey, the henry g. bryant professor of sociology at princeton university, concludes that the elimination of racial housing discrimination in the united states will probably “require a sustained and dedicated effort over a prolonged period of time.”10 4 see infra text accompanying notes 25-49. see generally, robert f. drinan, untying the white noose, 94 yale l.j. 435 (1984) (discussing the limitations of federal housing policy to remedy racial segregation); james a. kushner, apartheid in america: an historical and legal analysis of contemporary racial residential segregation in the united states, 22 how. l.j. 547 (1979) (studying the phenomena of racial segregation in the united states); florence w. roisman, intentional racial discrimination and segregation by the federal government as a principal cause of concentrated poverty: a response to schill and wachter, 143 u. pa. l. rev. 1351 (1995) (commenting on the role of federal housing policy in creating poverty); richard h. sander, individual rights and demographic realities: the problem of fair housing, 82 nw. u. l. rev. 874 (1988) (discussing why fair housing laws have failed in the united states and the strategies to achieve housing integration). 5 see, e.g., maria krysan & kyle crowder, cycle of segregation: social processes and residential stratification 8-10 (2017) (arguing that the federal government has caused much of the housing segregation in the united states and has poorly enforced federal fair housing law). 6 john r. logan & brian j. stults, the persistence of segregation in the metropolis: new findings from the 2020 census 1-3 (2021), https://s4.ad.brown.edu/projects/diversity/data/report/report08122021.pdf [https://perma.cc/b4my-nm5e], (last visited oct. 4, 2024). 7 richard h. sander, yana a. kucheva & jonathan m. zasloff, moving toward integration: the past and future of fair housing 164 (2018). 8 margery austin turner, et al., housing discrimination against racial and ethnic minorities, 2012 xi (2013). 9 douglas s. massey, racial discrimination in housing: a moving target, 52 soc. probs. 148, 148-149 (2005). 10 id. at 149. 2025] jim crow north 1198 the northeastern united states, often thought of as liberal and pioneering in many respects, has a long history of housing segregation and discrimination. that history is addressed in the strange careers of the jim crow north,11 a thought-provoking book edited by professors brian purnell, jeanne theoharis, and komozi woodard.12 the volume’s cover asserts, “jim crow was not a regional sickness, it was a national cancer. even at the high point of twentiethcentury liberalism in the north, jim crow racism hid in plain sight.”13 as the authors present the concept of the jim crow north, it applies to cities and states not just in the north but also in the west.14 purnell and theoharis’s introductory chapter presents scathing allegations about northern and western racism. while strict laws reinforced the jim crow south, cementing segregation into southern society and backed by horrific instances of violence, “[j]udges, police officers, school board officials, ptas, taxpayer groups, zoning board bureaucrats, urban realtors and housing developers, mortgage underwriters, and urban renewal policy makers created and maintained the jim crow north.”15 the remainder of the book explores the experiences of individual black activists who expose how northern racism worked as a racial system.16 11 the strange careers of the jim crow north: segregation and struggle outside of the south (brian purnell, jeanne theoharis, & komozi woodard eds., 2019). 12 brian purnell is an associate professor of africana studies and history at bowdoin college. jeanne theoharis is a distinguished professor of political science at brooklyn college. komozi woodard is a professor of american history, public policy, and africana studies at sarah lawrence college. 13 purnell et al., supra note 8, at back cover. 14 id. at 13. 15 id. at 5. 16 id. at 9 (emphasis added). purnell and theoharis express the intensity of their beliefs about the actual history of jim crow racism outside the south in the following passage: “expanded jim crow systems of northern racial segregation confined [b]lack citizens to american ghettos; criminalized the spaces where they lived and learned and played; denied them schooling that would make college possible, and then turned around and refused to hire them; imprisoned hundreds of thousands of people; extracted resources from their schools; plundered their property-based wealth; allowed a rapacious, lucrative drug economy to flourish; and supported victim-blaming ideologies that laid the burden for all of these social ills at the foot of urban [b]lack people’s behavior and cultures.” id. at 27. 1199 colum. j. race & l. [vol. 15:1193 whether in the south, north, or west, residential color lines are residual relics of white supremacy and reminders of the jim crow racial systems that lead to immense inequities for people of color.17 in some instances, this conclusion may apply to members of other minority groups, though perhaps to a different degree, as black americans normally receive the greatest degree of racial prejudice, exploitation, and oppression in our nation. from this study’s perspective, and as declared by douglas massey and nancy denton over three decades ago, no group has ever faced the unrelenting high level of housing segregation that black people have experienced in the nation’s major cities since the end of world war ii.18 massey and denton’s award-winning american apartheid: segregation and the making of the underclass is pertinent to the northeast’s jim crow history.19 based on massey and denton’s calculations, the housing markets in five northeastern cities were “hypersegregated” in 1980.20 new york, newark, philadelphia, baltimore, and buffalo had the worst conditions, with 17 see generally, thomas j. sugrue, “no right more elemental,”, in sweet land of liberty: the forgotten struggle for civil rights in the north (2008) (revealing how northern cities like new york, chicago, and los angeles, in contrast to cities in the jim crow south, had their own brand of jim crow laws and practices); jessica trounstine, living on the wrong side of the tracks: inequality in public goods provision, 19001940, in segregation by design: local politics and inequality in american cities (2018) (presenting data and analysis on the negative consequences of racial and ethnic housing segregation); jessica trounstine, segregation’s negative consequences, in segregation by design: local politics and inequality in american cities (2018) (presenting data and analysis on the negative consequences of racial and ethnic housing segregation). 18 douglas s. massey & nancy a. denton, american apartheid: segregation and the making of the underclass 2 (1993). nancy denton, douglas massey’s graduate student at the university of pennsylvania, subsequently became a well-known sociologist at the university of albany, suny, and is currently affiliated with the stanford center on poverty and inequality. 19 id. see also the following historical studies investigating the jim crow north: richard archer, jim crow north: the struggle for equal rights in antebellum new england (2017); martha biondi, to stand and fight: the struggle for civil rights in postwar new york city (2003); brian purnell, fighting jim crow in the county of kings: the congress of racial equality in brooklyn (2013); purnell, theoharis, & woodard, supra note 8; sugrue, supra note 14; clarence taylor, knocking at our own door: milton a. galamison and the struggle for school integration in new york city schools (1997); freedom north: black freedom struggles outside the south, 1940 1980 (jeanne theoharis & komozi woodard, eds., 2003). 20 massey & denton, supra note 15, at 76. 2025] jim crow north 1200 boston, pittsburgh, and washington, d.c. not far behind.21 massey and denton define hypersegregated metropolitan areas as those that are “very highly segregated on at least four of . . . five dimensions at once”: unevenness, isolation, clustering, centralization, and concentration.22 massey and jonathan tannen updated these findings years later, discovering that between 1970 and 2010, black people were hypersegregated at one time or another in 52 metropolitan areas nationwide.23 based on the definition of the “northeast” used in this study,24 these 52 metro areas included not only new york-newark, philadelphia, baltimore, and buffalo, but also boston, hartford, pittsburgh, richmond, roanoke, rochester, springfield, ma, syracuse, washington, d.c., and york, pa.25 because of the persistence of northern segregation, this article investigates how federal, state, and local governments have enforced the fair housing act of 1968 in the jim crow north. part i introduces massey and denton’s historical interpretation of fair housing law and policy in the northeast. part ii turns to the federal legal response to residential discrimination and segregation nationwide, including the northeast. part iii explains how this study calculates favorable outcomes made by federal, state, and local governments in discrimination complaints filed in the northeast under the fair housing act of 1968, which is also known as title viii of the civil rights act of 1968. this aspect of the research is important since scholars pay relatively little attention to state and local title viii enforcement.26 part iv presents the results of 21 id. 22 id. at 74. 23 douglas s. massey & jonathan tannen, a research note on trends in black hypersegregation, 52 demography 1025, 1027 (2015). 24 this definition of the northeast includes the six new england states (connecticut, massachusetts, maine, new hampshire, rhode island, and vermont), new york and new jersey, as well as delaware, maryland, pennsylvania, virginia, and west virginia. 25 massey & tannen, supra note 20, at 1028. 26 see charles s. bullock, iii, charles m. lamb & eric m. wilk, cooperative federalism and fair housing enforcement, 99 soc. sci. q. 728, 729 (2018). 1201 colum. j. race & l. [vol. 15:1193 that analysis for black and latinx americans. part v then focuses on federal region ii (new york and new jersey) to better understand their low rates of favorable outcomes in title viii complaints. the concluding section summarizes the study’s findings, discusses some possible explanations for the low favorable outcomes in region ii, and proposes four recommendations to improve the region’s favorable outcomes. i. a historical snapshot scholars have published a library of books and articles on the united states’s civil rights history.27 some publications, like american apartheid, spend time examining the northeast.28 according to massey and denton, before 1900, white people and black people “lived side by 27 part v of this article explores some of the literature on the history of fair housing law and policy in the northeast, focusing especially on new york and new jersey. see infra text accompanying notes 115-164. see also the literature on the jim crow north, supra note 16, as well as two classic studies on american residential segregation and discrimination. first, robert c. weaver examines the growth of urban residential segregation in the north, providing evidence of the extensive use of restrictive covenants and how they isolated black people in urban ghettos. see robert c. weaver, the negro ghetto (1948). he concludes that federal and local agencies, including the federal housing administration (fha) and local public housing authorities, failed to deal with the problem of race and housing. second, charles abrams argues that sizeable migrations of racial and ethnic groups into predominantly white urban areas tend to worsen housing shortages, leading white americans to respond with anger and violence. see charles abrams, forbidden neighbors: a study of prejudice in housing (1955). like weaver, abrams exposes realtors, builders, and mortgage lenders as perpetrators of housing discrimination, but emphasizes the government’s role as well in causing these problems, particularly the policies of the fha and the home owners loan corporation. both weaver and abrams urge governments to assume a more active role in combatting housing segregation and discrimination. countless other legal, sociological, historical, political, and economic studies impressively address housing segregation and discrimination from different perspectives. 28 massey & denton, supra note 15. the focus here is on massey and denton’s research because they have arguably published the most widely known housing segregation research in the united states over the past four decades. prior to american apartheid, which won various awards, massey and denton also published several major studies on housing segregation in leading sociology journals. see, e.g., douglas s. massey & nancy a. denton, trends in the residential segregation of blacks, hispanics, and asians: 1970-1980, 52 am. socio. rev. 802 (1987); douglas s. massey & nancy a. denton, suburbanization and segregation in u.s. metropolitan areas, 94 am. j. of socio. 592 (1988); douglas s. massey & nancy a. denton, racial identity among caribbean hispanics: the effect of double minority status on residential segregation, 54 am. socio. rev. 790 (1989). prolific through the years, massey has many other academic interests, yet he continues to be a leading contributor to housing segregation research. 2025] jim crow north 1202 side in american cities.”29 when black-white segregation was modest and black populations were small, the north experienced substantial black-white interaction.30 massey and denton observe that race relations in the northeast changed drastically over the next three decades.31 during this period, white people increasingly isolated themselves from black people in new york, newark, philadelphia, pittsburgh, boston, and buffalo.32 many northern white people greeted the great migration of black people into their communities with hostility.33 “middle-class whit[e] [americans] were repelled by what they saw as the uncouth manners, unclean habits, slothful appearance, and illicit behavior” of some black people.34 competition for jobs and housing produced friction with working-class white people.35 northern newspapers reinforced negative stereotypes about black americans by “increasingly us[ing] terms such as ‘nigger’ and ‘darkey’ in print and carr[ying] unflattering stories about [b]lack crimes and vice.”36 white parents gradually stopped sending their children to integrated schools, and black professionals lost much of their white clientele.37 racial violence occurred in northern 29 massey & denton, supra note 15, at 17. purnell and theoharis have a different interpretation of blackwhite interaction and racial justice in the north during early american history. the north, they argue, “led the nation in systemized racial injustice. around the time of the american revolution, as free [b]lac[k] [people] and fugitives from slavery populated northern cities, political and legal restrictions on [b]lack life increased.” for instance, in the late eighteenth century, “[b]lack citizens petitioned boston’s city government for redress because their skin color denied them access to state-sponsored schools.” purnell et al., supra note 8, at 12. “boston schools struggled with jim crow racism all the way through the twentieth century, and jim crow moved from the north to the south, from northern state courts to the highest court in the nation.” purnell et al., supra note 8, at 13. 30 massey & denton, supra note 15, at 24. 31 id. at 26. 32 id. at 24. 33 for leading studies of the great migration, see generally, james n. gregory, the southern diaspora: how the great migrations of black and white southerners transformed america (2005); nicholas lemann, the promised land: the great black migration and how it changed america (1992); isabel wilkerson, the warmth of other suns: the epic story of america’s great migration (2010). 34 massey & denton, supra note 15, at 29. 35 id. 36 id. at 30. 37 id. 1203 colum. j. race & l. [vol. 15:1193 cities in the 1900s, especially during the “red summer” of 1919,38 as black people were increasingly segregated from white people in the housing market.39 as evidence of the extent of racial segregation, in 1940, about 70% of northern black city residents would need to relocate to attain an even racial residential configuration in those cities.40 black isolation in new york city skyrocketed from 5% to 42% between 1900 and 1930.41 there was also great inequality in the living standards across these segregated neighborhoods. one study found that in 1957, numerous minority residents of new york city had to endure unhealthy, second-rate, congested living conditions due to housing segregation and discrimination, all of which had the effect of endangering the safety, health, and welfare of the city’s entire population.42 public policy also significantly contributed to segregated housing in the jim crow north. as early as 1910, baltimore passed a racial zoning ordinance creating separate black and white neighborhoods in the city.43 other cities adopted similar ordinances.44 in buchanan v. warley (1917), the united states supreme court unanimously banned racial zoning, declaring that the property provision of the due process clause of the fourteenth amendment prohibits state and 38 id. at 30, 34–35. the “red summer” of 1919 refers to violent racial conflicts, usually white-on-black, that occurred in some 26 american cities and towns following the return of soldiers after world war i. the violence was primarily caused by competition for jobs, many of which had been abandoned so soldiers could join the war effort, and in some instances were now held by black americans. see, e.g., gilbert osofsky, harlem: the making of a ghetto: negro new york, 1890–1930 46–52 (1966); ellott rudwick, race riot at east st. louis, july 2, 1917 (1982); allan h. spear, black chicago: the making of a negro ghetto, 1890–1920 214–22 (1967). 39 massey & denton, supra note 15, at 31. 40 id. 41 id. 42 1957 new york city fair housing law, new york, n.y., administrative code § x41-1.0(a) (supp. 196061), quoted in joseph b. robison, housing—the northern civil rights frontier, 13 w. rsrv. l. rev. 101, 105 n.19 (1961). for details, see u.s. comm’n on civ. rts., report of the united states commission on civil rights 386-93 (1959). 43 massey & denton, supra note 15, at 41–42. 44 id. 2025] jim crow north 1204 local government actions that would deny citizens the right to own, acquire, use, and dispose of property.45 after buchanan, residential segregation was promoted largely through racially restrictive covenants, discriminatory real estate and banking practices, and ultimately violence.46 after 1940, the quantity and quality of housing for black newcomers in the north became seriously restricted.47 by blockading black people’s access to white areas, ghetto housing was subdivided for new black arrivals.48 spatial isolation intensified for black people as garages, basements, closets, and sheds were converted into apartments.49 housing conditions continued to deteriorate, and black isolation grew more intense.50 as the great migration from the south continued, newark, philadelphia, washington, d.c., and other once predominantly white cities, saw their black populations increase, but on a segregated basis.51 among northern cities, black spatial isolation more than doubled, on average, from 1930 to 1970.52 this black spatial isolation persists today in jim crow north. table 1 shows that as of 2020, four northeastern metro areas ranked in the ten most black-white segregated areas nationwide: newark, new jersey, was first; new york-jersey city-white plains was fourth; philadelphia, pennsylvania, was seventh; and nassau county-suffolk county, new york, was tenth.53 table 1 indicates the percentage of black people that would need to move for the group 45 245 u.s. 60 (1917). 46 massey & denton, supra note 15, at 42. restrictive covenants are clauses placed in property contracts that, among other things, white property owners used to limit or prohibit the sale or rental of real estate to certain groups of people to keep communities racially or religiously segregated. in shelley v. kraemer, the u.s. supreme court announced that private restrictive covenants are not unconstitutional, but that state court enforcement of discriminatory covenants constitutes a form of state action that violated the equal protection clause of the fourteenth amendment. 334 u.s. 1 (1948). 47 massey & denton, supra note 15, at 43. 48 id. 49 id. 50 id. 51 id. at 45. 52 id. at 46. 53 logan & stults, supra note 3, at 5–7, 19–20. 1205 colum. j. race & l. [vol. 15:1193 to be evenly distributed across neighborhoods, block groups, or blocks. for example, almost three-fourths of the populations of newark or new york-jersey city-white plains would have to move to eliminate the black-white residential segregation that existed in 2020.54 54 while black spatial isolation continues in major northeastern metropolitan areas, over time there are substantial differences in black net migration gains and losses across leading cities in the region. according to william frey, a well-known demographer at the university of michigan, large numbers of black americans returned to southern cities between 1975 and 2020. for instance, atlanta received a net black migration gain of 22,111 between 1975 and 1980, 74,705 between 1985 and 1990, 114,478 between 1995 and 2000, 118,750 between 2005 and 2010, 70,830 between 2010 and 2015, and 68,835 between 2015 and 2020. william h. frey, a “new great migration” is bringing black americans back to the south, brookings table b (2022), www.brookings.edu/articles/anew-great-migration-is-bringing-black-americans-back-to-the-south [https://perma.cc/ata8-vvsz]. in contrast, from 1975 to 2020, several northeastern metro areas lost far more black migrants than they gained. this is especially true of new york city, which experienced the greatest black net migration losses in the northeast during these years: -139,789 between 1975 and 1980; -190,108 between 1985 and 1990; -193,061 between 1995 and 2000; -309,200 between 2005 and 2010; -249,980 between 2010 and 2015; and -301,430 between 2015 and 2020. id. additionally, certain northeastern states mainly gained or lost black residents during these years. northeastern states with net black migration gains primarily include maryland and virginia, whereas the largest losses in black residents were in new york, new jersey, and pennsylvania. id. at table a. 2025] jim crow north 1206 table 1. black-white segregation in 50 metro areas with the largest black populations in 2020 1207 colum. j. race & l. [vol. 15:1193 source: john r. logan & brian j. stults, the persistence of segregation in the metropolis: new findings from the 2020 census 17-18 (2021), https://s4.ad.brown.edu/projects/diversity/data/report/report08122021.pdf [https://perma.cc/b4my-nm5e] (accessed october 4, 2024). reproduced with permission. comparing these black-white residential segregation data to that of latinx and whites in table 2 leads to some similar, yet mostly different, conclusions. newark nj-pa, philadelphia, and new york-jersey city-white plains ny-nj remain among the five most segregated metropolitan areas in the united states.55 joining the ten most segregated metro areas for latinx and whites is cambridge-newton-framingham, ma, followed later in table 2 by nassau 55 logan & stults, supra note 3, at 21–22. 2025] jim crow north 1208 county-suffolk county, ny.56 clearly, black-white housing segregation is noticeably greater in the north and midwest than latinx-white segregation. at the same time, table 2 reveals much larger numbers of highly segregated hispanic-white communities in california and texas.57 finally, note that latinx-white housing segregation is growing far more in table 2 than is blackwhite residential segregation in table 1. almost half of the metro areas listed in table 2, for example, had increases in latinx-white residential segregation between 1980 and 2020, only two of which are in the northeast (cambridge-newton-framingham and nassau county-suffolk county).58 after examining the 1980–2020 data, sociologists john logan and brian stults conclude, “[t]hese new data mostly reinforce patterns that were observed a decade ago: high but slowly declining [b]lack-white segregation, and less intense but hardly changing segregation of hispanics from whites.”59 56 id. 57 id. 58 id. 59 id. at 1. 1209 colum. j. race & l. [vol. 15:1193 table 2. latinx-white segregation in 50 metro areas with the largest latinx populations in 2020 2025] jim crow north 1210 source: john r. logan & brian j. stults, the persistence of segregation in the source metropolis: new findings from the 2020 census 21-22 (2021), https://s4.ad.brown.edu/projects/diversity/data/report/report08122021.pdf [https://perma.cc/b4my-nm5e] (accessed october 4, 2024). reproduced with permission. ii. the legal response a. federal laws since 1960, congress has passed multiple equal housing opportunity laws to combat the persistent patterns of racial discrimination and segregation in housing.60 foremost among these is the fair housing act of 1968, which prohibits discrimination based on race, color, religion, sex, and national origin in the sale, rental, and financing of housing and in the performance of 60 see generally, robert g. schwemm, housing discrimination: law and litigation chs. 4–29 (2017) (discussing title viii’s substantive coverage as well as its enforcement, and other sources of federal fair housing law). 1211 colum. j. race & l. [vol. 15:1193 brokerage services.61 beyond these five protected classifications, title viii outlaws six specific practices: (1) refusals to rent or sell housing; (2) discrimination in the terms, conditions, or privileges of rentals and sales in housing; (3) advertising that indicates a preference, limitation, or discrimination; (4) misrepresenting the availability of housing for rent or sale; (5) discrimination in loans for purchasing, constructing, improving, or repairing housing; and (6) discrimination in access to or membership in multiple-listing services or organizations for real estate brokers.62 individuals claiming a fair housing act violation may assert multiple claims of discrimination.63 title viii also forbids retaliation against complainants or anyone who speaks up for others,64 and it requires that all federal agencies implement their housing-related programs “affirmatively to further” fair housing.65 in 1988, congress amended the fair housing act to protect two additional groups: persons with disabilities66 and families with children under the age of eighteen.67 other federal laws address equal housing opportunities. title vi of the civil rights act of 1964 outlaws discrimination on account of race, color, or national origin in any federal or 61 42 u.s.c. §3604-05. sex discrimination was not prohibited by the fair housing act but was added by congress as a protected classification in 1974 through the housing and community development act, 42 u.s.c. §5301. 62 42 u.s.c. §§ 3604–06. 63 id. 64 42 u.s.c. §3617. 65 42 u.s.c. §3608(d), e(5). in trafficante v. metro. life ins. co., the supreme court ruled that congress intended the fair housing act to outlaw both discrimination and segregation in housing. 409 u.s. 205 (1972). justice douglas, writing for a unanimous majority in trafficante, stressed that senator walter mondale (d-mn), a major author and advocate of title viii, viewed the legislation as requiring not only nondiscrimination in housing but integration as well. in mondale’s words, the fair housing act was designed to “replace the ghettos ‘by truly integrated and balanced living patterns.’” (mondale quoted in 409 u.s. at 211). for title viii’s legislative history, see jean eberhart dubofsky, fair housing: a legislative history and a perspective, 8 washburn l. j. 149 (1969); hugh davis graham, the surprising career of federal fair housing law, 12 j. pol’y hist. 215 (2000); rigel c. oliveri, the legislative battle for the fair housing act (1966-1968), in the fight for fair housing: causes, consequences, and future implications of the 1968 federal fair housing act 28-39 (gregory d. squires ed., 2018); jonathan zasloff, the secret history of the fair housing act, 53 harv. j. on legis. 247 (2016). 66 42 u.s.c. §3602(h). 67 42 u.s.c. §3602(k) 2025] jim crow north 1212 federally assisted program.68 the equal credit opportunity act of 1974 bars discrimination by creditors on grounds of sex, marital status, race, color, religion, national origin, or age.69 the home mortgage disclosure act of 1975 provides data on the amount and location of home improvement and mortgage loans to stop lending institutions from discriminating against particular neighborhoods, often in minority communities, when granting loans.70 in addition, president kennedy’s executive order 11063 prohibits discrimination on account of race, color, creed, or national origin in the sale, lease, or rental of property owned or operated by the federal government.71 lastly, section 1982 of the civil rights act of 1866 proclaims that “[a]ll citizens of the united states shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”72 overall, the above laws seem to protect a wide variety of equal housing opportunity rights that one would expect in american democracy today. but major problems remain. segregated cities and neighborhoods still exist in much of the united states.73 blatant housing discrimination has decreased since the passage of title viii,74 but as one type of discrimination is diminished or contained, another appears and spreads.75 an additional problem involves how to best enforce the laws above. from the viewpoint of this study, a key question is how to enforce the fair housing act of 1968 most effectively and efficiently. as will be seen, the answer does not come easily. 68 42 u.s.c. §§2000d–2000d-6. 69 15 u.s.c. §§1691–1691(f). 70 12 u.s.c. §§2801–2809. 71 exec. order no. 11,063, 3 c.f.r. 652 (1959–1963). 72 42 u.s.c. §1982. 73 see supra text accompanying notes 3, 22, 50–56, and tables 1 and 2. 74 see supra text accompanying note 4. 75 see supra text accompanying notes 5 and 6. 1213 colum. j. race & l. [vol. 15:1193 b. enforcing title viii the u.s. department of housing and urban development (hud), created in 1965 to administer federal housing and urban development laws, is responsible for the overall enforcement of the fair housing act.76 the department of justice (doj) also plays an indispensable role by filing suit in cases where there is reasonable cause to believe the fair housing act has been violated.77 other federal agencies must “affirmatively further” fair housing in their programs (including the departments of agriculture, defense, and veterans affairs; the federal reserve board; the federal deposit insurance corporation; and the federal home loan bank board).78 yet according to national laws, regulations, and executive orders, hud is “the principal federal agency” responsible for title viii’s administration and enforcement, including the “development of policies, procedures, regulations, standards, guidelines, and resources for the implementation” of the fair housing act. 79 hud’s title viii enforcement heavily depends on the effectiveness and efficiency of its administrative complaint system.80 hud enforces the nation’s fair housing laws by investigating, conciliating, and closing complaints claiming that housing discrimination has occurred or is about to occur.81 hud has 100 days to investigate and decide on each complaint unless it is impractical to do so.82 first, hud determines whether the agency has jurisdiction to deal with a 76 42 u.s.c. §3608. see generally, roberta achtenberg, keynote address, 143 u. pa. l. rev. 1191 (1995); u.s. comm’n on civ. rts., the federal civil rights enforcement effort--1974: to provide for fair housing ch. 1 (1974). 77 42 u.s.c §3614. see u.s. dep’t of hous. & urb. dev., 1994 annual report to congress on fair housing programs 26-32 (1996); zasloff, supra note 62. 78 u.s. comm’n on civ. rts., supra note 73, chs. 2–3. 79 u.s. dep’t of hous. & urb. dev., supra note 74, at 9 (emphasis added). 80 u.s. comm’n on civ. rts., supra note 73, at 27–32; u.s. dep’t of hous. & urb. dev., live free: annual report on fair housing fiscal year 2010 17–34 (2011). 81 see, e.g., bullock, lamb, & wilk, supra note 23, at 730–31. 82 42 u.s.c. §3610(g)(1). 2025] jim crow north 1214 complaint.83 on a finding of reasonable cause, hud’s office of fair housing and equal opportunity (fheo) tries to resolve the dispute between the complainant and the respondent voluntarily.84 closure occurs with a successful conciliation or when a fair housing dispute is resolved in an appropriate judicial forum.85 although hud is primarily responsible for enforcing federal fair housing protections, the processing of complaints under certain conditions shifts to state or local agencies dealing with housing discrimination.86 if hud has identified a state or local agency that administers a law that is “substantially equivalent” to title viii, then the fair housing assistance program (fhap) agency must be given the first opportunity to investigate the complaint and, if found meritorious, attempt conciliation.87 83 u.s. dep’t of hous. & urb. dev., supra note 77, at 17. 84 id. at 29. 85 u.s. dep’t of hous. & urb. dev., the state of fair housing: fy 2006 annual report on fair housing 30–38 (2007). hud’s publications use the concept of “closure” in various ways, which may be confusing. see, for example, infra text accompanying notes 95–103 for a discussion of hud’s description of five types of closures in title viii complaints. by contrast, this article focuses specifically on favorable administrative outcomes in title viii complaints filed by latinx and black americans, that is, whether federal, state, and local governments reach outcomes favoring those title viii complainants. thus, a favorable outcome is one that leaves a fair housing act complainant better off than if no complaint had been filed, and favorable outcomes result from two types of hud closures: conciliations or cause determinations, discussed in infra text accompanying notes 98, 99, and 102. ultimately, favorable administrative outcomes usually result in a financial remedy for the complainant, a housing unit for the complainant, an affirmative action agreement that applies to the respondent’s future behavior, or some combination of the three. for instance, conciliation agreements may include “a requirement for the respondent to pay a civil penalty or to attend fair housing training” or “assurances that the respondent will eliminate discriminatory policies and practices, provisions to remedy any other fair housing violations and prevent future violations, provisions for periodic reporting by the respondent, and provisions for hud or the fhap agency to monitor compliance with the agreement.” u.s. dep’t of hous. & urb. dev., annual report on fair housing fy 2012–2013 18 (2014). 86 charles s. bullock, iii, & charles m. lamb, strengthening american fair housing enforcement: a proposal, 28 u.c. davis soc. just. l. rev. 168, 179-180 (2024). 87 42 u.s.c. §3610(f)(1). see charles s. bullock, iii, & charles m. lamb, race, fair housing enforcement, and the fair housing assistance program, 25 rutgers race & l. rev. 213, 231-232 (2025). to our knowledge, the only law professor to study fhap systematically is northwestern university’s michael schill. see michael h. schill, implementing the federal fair housing act: the adjudication of complaints, in fragile rights within cities: government, housing, and fairness 143–76 (john goering ed., 2007); michael h. schill & samantha friedman, the fair housing amendments act of 1988: the first decade, 4 cityscape 57 (1999). however, for a recent study by political scientists, see bullock & lamb, supra note 83. 1215 colum. j. race & l. [vol. 15:1193 hud’s complaint system sounds straightforward, but problems have plagued enforcement of title viii. historically, the main problem has been that hud’s enforcement power is limited to purely voluntary informal methods of conference, conciliation, and persuasion.88 under the fair housing act, if either party refuses to negotiate, hud can usually take no meaningful action, as no form of legal coercion backs up its enforcement powers. unlike most federal agencies, hud lacks the power to initiate its own enforcement actions. instead, hud must wait for a person to file a complaint and then, when appropriate, mediate the differences between the complainant and the respondent. however, this is not true with respect to the doj. as richard sander, yana kucheva, and jonathan zasloff, a research team at ucla law school, observe, doj’s power to “investigate patterns and practices of housing discrimination and bring lawsuits to stop violations . . . was probably the single most important provision”89 of the 1968 fair housing act, although a “hostile attorney general might render the doj enforcement power useless.”90 88 see, e.g., u.s. comm’n on civ. rts., supra note 73, at 4. according to the u.s. commission on civil rights, “hud’s lack of enforcement power under title viii has been a major stumbling block to the protection of rights under that title. when hud finds discrimination and attempts to conciliate a resolution, the department is successful only about half the time. if respondents do not agree to hud’s proposals in conciliation, the probability of further action is low; only 10% of the cases hud cannot conciliate are referred to the department of justice (doj) and few of those cases are pursued.” u.s. comm’n on civ. rts., the federal fair housing enforcement effort 5 (1979). or, in the words of hud secretary patrica roberts harris in 1978: “the lack of adequate enforcement power has been the most serious obstacle to the development of an effective fair housing program within hud. our present authority is limited to a purely voluntary process of ‘conference, conciliation, and persuasion’…. simply put, ‘conciliation’ all too often has proved an inadequate means of securing compliance with the substantive provisions of title viii. respondents frequently ignore hud’s conciliation process because there is no real inducement to cooperate. where conciliation is successful, it is most often because the respondent knows that a realistic threat of private litigation is present, should hud’s efforts fail. but where the victim of discrimination meets with the hud conciliator and with the respondent, and it is evident that the complainant is unrepresented by counsel, conciliation often collapses. there is no credible threat of ‘consequences’ should the respondent refuse to cooperate.” u.s. comm’n on civ. rts., the federal fair housing enforcement effort 10 (1979). 89 sander, kucheva, & zasloff, supra note 4, at 136. 90 id. at 144. 2025] jim crow north 1216 the 1988 fair housing amendments act strengthened equal housing opportunity enforcement in two major ways. hud can still send a case to the doj if it has reasonable cause to believe that title viii was infringed. but under the amendments act, the doj can also sue in cases involving “general public importance,” exclusionary zoning, or where a conciliation agreement was broken.91 alternatively, hud can refer cases to its own administrative law judges (aljs) instead of forwarding them to the doj.92 when hud’s aljs discover a fair housing act violation, they can order damages, injunctive relief, and attorney’s fees.93 iii. theory and methodology a. assessing favorable outcomes federal fair housing enforcement has received mounting attention since the civil rights efforts of the 1960s. during the 1970s, the u.s. commission on civil rights published exhaustive studies on how federal agencies enforced—or failed to enforce—the country’s equal housing opportunity laws.94 yet scholars have devoted far less attention to state and local enforcement.95 to help fill this gap, this article measures favorable outcomes in title viii complaints filed by black and latinx people and closed by hud as well as state and local fhap agencies in the nation’s three northeastern regions (see figure 1): region i (the new england states), region ii (new york and new jersey), and region iii (delaware, maryland, pennsylvania, 91 42 u.s.c. §3614. 92 see generally, u.s. comm’n on civ. rts., the fair housing amendments act of 1988: the enforcement report 49–67 (1994) (describing the legal framework for the administrative adjudication of fha complaints and the duties of administrative law judges in said process). 93 42 u.s.c. §3612(g)(3)–(p). 94 u.s. comm’n on civ. rts., federal civil rights enforcement effort (1970); u.s. comm’n on civ. rts., supra note 73. 95 see bullock, lamb, & wilk, supra note 23, at 729. 1217 colum. j. race & l. [vol. 15:1193 virginia, and west virginia).96 this analysis covers the period between 1989 and 2010 and relies on two rich data sets received from hud under the freedom of information act (foia).97 the data provides details on each title viii complaint filed during this period, including why it was filed and how it was decided; whether hud, a state agency, or a local agency resolved the complaint; and when it was received and closed. it also reveals the type(s) of discrimination alleged; whether an agency attempted conciliation and, if so, the dates that conciliation was undertaken and achieved; and the number of failed conciliations before success occurred. in addition, it discloses whether relief was awarded to a complainant and how much, along with the reason(s) why a case was closed. using these data, this article calculates favorable outcomes to reveal the extent to which federal, state, and local governments resolve title viii complaints in favor of black and latinx complainants. figure 1 96 we use the concept of favorable outcomes in our title viii enforcement research. in this article, “favorable outcomes” refers to the percentage of title viii complaints decided in favor of fair housing act complainants. this term is often used in political science to describe general outcomes in the administrative process. a few other authors, such as michael schill, supra note 84, calculate how often title viii complainants win their claims, but to our knowledge no one else uses the term “favorable outcomes” in fair housing research. 97 u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2005) (obtained by the authors under the freedom of information act); u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2013) (obtained by the authors under the freedom of information act). 2025] jim crow north 1218 the ten standard federal regions based on hud’s fair housing act implementation approach, there are five possible enforcement outcomes for a title viii complaint: administrative closures, irrelevant claims, conciliations, no cause determinations, and cause determinations.98 first, administrative closures include cases in which a civil rights agency loses contact with a complainant; a complainant fails to cooperate with an investigation or withdraws a complaint without resolution; or a trial begins in a private lawsuit brought by a complainant.99 second, irrelevant claims are those in which a civil rights agency finds that housing discrimination is not the basis of a complaint, such as a dispute between a tenant and a landlord that is unrelated to title viii.100 third, conciliations include situations in which hud serves as an informal mediator between a title viii 98 see, e.g., u.s. dep’t of hous. & urb. dev., supra note 74, at 15–16. note that “if a single complaint alleged multiple bases, it was counted under each basis alleged.” u.s. dep’t of hous. & urb. dev., supra note 77, at 21. hence, following the approval of the fair housing amendments act, 20% of hud’s complaints alleged multiple bases of discrimination, and 47% of its race-based complaints were multiple basis complaints. u.s. dep’t of hous. & urb. dev., the state of fair housing: report to the congress pursuant to section 808e of the fair housing act 15 (1990). 99 see u.s. dep’t of hous. & urb. dev., 1995 annual report to congress: [the state of fair housing in america] 38 (1997). 100 see u.s. dep’t of hous. & urb. dev., 1996 annual report to congress on the state of fair housing in america 12–13 (1999). 1219 colum. j. race & l. [vol. 15:1193 complainant and a respondent in seeking to resolve a case.101 conciliations occur when a voluntary agreement is reached between the complainant and the respondent with a government agency’s assistance or when a title viii complaint is withdrawn because the parties reach a private agreement.102 fourth, no cause determinations occur when a civil rights agency concludes there is no reasonable cause to believe that the respondent has violated title viii.103 if so, the “complainant can still litigate the dispute privately” but cannot pursue further action through the agency.104 finally, cause determinations occur when agency officials believe sufficient evidence indicates that a respondent violated title viii.105 adjudication then proceeds before an administrative law judge or in an appropriate court.106 to assess how often black and latinx complainants receive a title viii resolution in their favor in the jim crow north, this article focuses on the two enforcement outcomes that favor complainants: cause determinations and conciliations. cause determinations favor a complainant because they increase the likelihood of receiving a remedy. administrative closures, no-cause determinations, and irrelevant claims are unfavorable because the complainant’s position is not improved. b. research assumptions the forthcoming analysis is based on certain assumptions. first, this research assumes that if state and local governmental decisions predominantly reflect the demands of people and groups with the most influence at the subnational level, and if those people and groups support 101 id. at 13. 102 id. 103 id. 104 id. 105 id. 106 id. 2025] jim crow north 1220 residential, educational, and economic segregation,107 then civil rights agencies in a state will respond by deciding a comparatively low proportion of title viii complaints in favor of latinx and black complainants.108 this article does not prove that a causal relationship exists between residential, educational, and economic segregation on the one hand and low favorable outcomes, but it does indicate that a causal link is quite possible. second, this study assumes that fair housing act complaints filed nationwide are equally meritorious across the states and cities that are the focus of this study. because of this assumption, variations in complainants’ rates of success from state to state are the product of differences in the processing of title viii cases by hud as well as state and local governments participating in fhap. variations could stem from differences in the standards applied, training of staff, commitment of supervisors, biases held by staff, or myriad other factors.109 assessment of any or all these possibilities is beyond the scope of the data available. 107 political theorists have debated these and related concepts. see, e.g., robert a. dahl, who governs?: democracy and power in an american city (1961) (arguing that influential groups vie in the political system, and government's role is to act as the mediator between these groups). 108 in making the second ghetto, which addresses chicago’s housing segregation, historian arnold hirsch observes that his study principally focuses not on black people but on white americans. “that is where the power was,” he writes. “[w]hat we are looking at here is the construction of the ball park within which the urban game is played. and there is no question that the architects, in this instance, were whites.” arnold hirsch, making the second ghetto xvi (1998). likewise, regarding equal educational opportunity, gary orfield and danielle jarvie argue that desegregation successes “were a product of decades of struggle by black leaders who had concluded from generations of experience that white institutions would not produce demanding schools for blac[k] [people] and would keep the best opportunities for their own children.” gary orfield & danielle jarvie, black segregation matters: school resegregation and black educational opportunity, ucla civ. rts. project 35 (dec. 17, 2020), https://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/black-segregation-mattersschool-resegregation-and-black-educational-opportunity [https://perma.cc/c7dq-b7xj] (last visited may 5, 2024). if many public-school systems may be characterized as white institutions, so too may many civil rights agencies, even if their leaders and employees reflect a reasonable measure of racial and ethnic diversity. 109 see charles s. bullock, iii, & charles m. lamb, a search for variables important in policy implementation, in implementation of civil rights policy 4–17 (charles s. bullock, iii, & charles m. lamb eds., 1984) (presenting ten variables that influence the successful implementation of civil rights policy). see also charles m. lamb, equal housing opportunity, in implementation of civil rights policy 158–177 (charles s. bullock, iii, & charles m. lamb eds., 1984) (analyzing how those variables effect fair housing implementation). 1221 colum. j. race & l. [vol. 15:1193 it is also important to note that this article does not assume that civil rights agencies necessarily decide favorable or unfavorable outcomes for fair housing act complainants “correctly”; administrative enforcement decisions can be wrong. still, ultimately, the measurement of favorable outcomes is a reasonable way to evaluate the effectiveness of fair housing enforcement because the lower supportive outcome rates are, the more likely that title viii is not being seriously or aggressively enforced. in other words, higher rates of favorable outcomes reflect more rigorous and effective enforcement of the fair housing act.110 because all three levels of government process the same type of complaints, this study can determine whether state and local governments produced as many favorable outcomes for fair housing complainants as hud. nor is it assumed that changes in the diversity of a state’s residents necessarily mean that black-white housing segregation is decreasing. for example, consider maryland, which has the most diverse population among the east coast states as its latinx and asian residents have noticeably increased recently, especially in the washington suburbs.111 even so, maryland’s white and black residents are still frequently segregated. elliott davis, writing for the u.s. news & world report, elaborates: baltimore “has a pattern of racial segregation – with black residents living in mostly the western and eastern parts of the city – that dates back to more than a century 110 see charles m. lamb & eric m. wilk, civil rights, federalism, and the administrative process: favorable outcomes by federal, state, and local agencies in housing discrimination complaints, 70 pub. admin. rev. 412, 414 (2010); charles s. bullock, iii, eric m. wilk, & charles m. lamb, fair housing enforcement in the south and non-south, 96 soc. sci. q. 941, 946–53 (2015); bullock, lamb, & wilk, supra note 23, at 729, 734–41; charles s. bullock, iii, charles m. lamb, & eric m. wilk, african american and latino discrimination complaints: comparing volume and outcomes,102 soc. sci. q. 2676, 2679–87 (2021). 111 see marissa j. lang & ted mellnik, census data shows maryland is now the east coast’s most diverse state, while d.c. is whiter, wash. post (aug. 12, 2021), https://www.washingtonpost.com/dc-mdva/2021/08/12/dc-virginia-maryland-census-redistricting-2/. based on the 2020 census, maryland joined “five other states—california, hawaii, texas, nevada and new mexico—…in having people of color comprise the majority of their population.” id. 2025] jim crow north 1222 ago.”112 moreover, davis notes that “[a] 2015 data brief from the maryland equity project at the university of maryland's college of education found that as public school enrollment became more diverse in the state, schools became more segregated.”113 iv. the northeastern states a. region i: the new england states the emphasis of this article now shifts to title viii enforcement by hud and subnational fhap agencies in the country’s three northeastern regions, which are part of the jim crow north. figure 2 reveals that in region i, new hampshire had the highest rate of favorable outcomes for black title viii complainants, followed by rhode island, connecticut, and massachusetts. region i’s favorable outcomes tended to fall between 20% and 30% and never reached 40%. the average rate of favorable outcomes for black complainants in the region was 27.3%. figure 2 112 elliott davis jr., maryland sees growth in racial diversity, but challenges persist, u.s. news & world rep. (nov. 8, 2021), https://www.usnews.com/news/best-states/articles/2021-11-08/census-maryland-grows-indiversity-but-inequality-persists. 113 id. https://education.umd.edu/file/8523/download?token=xrvfl_cc 1223 colum. j. race & l. [vol. 15:1193 favorability rates by hud and fhap agencies in region i (new england) for race and national origin complaints filed by black americans, 1989–2010 source: u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2005) (obtained by the authors under the freedom of information act); u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2013) (obtained by the authors under the freedom of information act). for latinx title viii complainants in new england, figure 3 shows rhode island leading the way with a favorability rate of more than 40%, followed by new hampshire, maine, and connecticut. favorable outcomes for latinx people in region i fell between 25% and 45%, a slightly wider range than black outcomes, as reported in figure 2. the average rate of favorable outcomes for latinx complainants in the region was 35.3%. there is some similarity in the ranking of new england states in terms of the relative levels of success for the two groups of complainants. new hampshire and rhode island are the states in which black and latinx black americans region i (new england) %, n = 6 state level: black americans region i (new england) %, n = 6 state level: 2025] jim crow north 1224 complaints most often succeed. vermont is consistently the next-to-last state in terms of whether a state provides favorable outcomes for complainants. figure 3 favorability rates by hud and fhap agencies in region i (new england) for race and national origin complaints filed by latinx americans, 1989–2010 source: u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2005) (obtained by the authors under the freedom of information act); u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2013) (obtained by the authors under the freedom of information act). b. region iii: the mid-atlantic south next, figure 4 focuses on region iii, which reveals that the mid-atlantic south differs from region i with far greater variation in favorable outcomes for black title viii complainants. delaware provided black people with favorable outcomes in 41.7% of all fair housing act complaints, compared to less than half of that in maryland (14.3%) and a similarly small latinx americans region i (new england) n = 6 state level: avg: 33.5%, st dev: 6.3% latinx americans region i (new england) n = 6 state level: avg: 33.5%, st dev: 6.3% 1225 colum. j. race & l. [vol. 15:1193 favorable outcome rate in virginia (16.3%). as a result of the lack of success in those two states, the average for region iii is slightly lower than region i. figure 4 favorability rates by hud and fhap agencies in region iii (mid-atlantic south) for race and national origin complaints filed by black americans, 1989–2010 source: u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2005) (obtained by the authors under the freedom of information act); u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2013) (obtained by the authors under the freedom of information act). figure 5 shows that delaware has a 58.6% favorability outcome rate for complaints filed by latinx individuals in region iii. this is in stark contrast with maryland, which has the lowest favorability rate for latinx or black americans (13.8% and 14.3% respectively) in the midatlantic region. pennsylvania, which ranked second in terms of favorable outcomes for black people (29.4%), is also second for latinx people (33.6%). four of the region iii states have the black americans region iii (mid-atlantic south) n = 6 state level: black americans region iii (mid-atlantic south) n = 6 state level: 2025] jim crow north 1226 same ranking for the two types of complainants, with shifts in ordering limited to virginia and west virginia. the spearman’s rho for region iii is a strong .771, which is statistically significant at p = .072. figure 5 favorability rates by hud and fhap agencies in hud region iii (mid-atlantic south) for race and national origin complaints filed by latinx americans, 1989–2010 source: u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2005) (obtained by the authors under the freedom of information act); u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2013) (obtained by the authors under the freedom of information act). c. region ii: the mid-atlantic north the mid-atlantic north is next in the spotlight, as figure 6 reports the share of favorable outcomes for black title viii complainants in region ii. new york and new jersey rank about the same in this regard (23.4% compared to 22.9%), with a humble average favorable outcome rate of only 23.2% for black people. latinx americans region iii (mid-atlantic south) n = 6 state level: latinx americans region iii (mid-atlantic south) n = 6 state level: 1227 colum. j. race & l. [vol. 15:1193 figure 6 favorability rates by hud and fhap agencies in region ii (mid-atlantic north) for race and national origin complaints filed by black americans, 1989–2010 source: u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2005) (obtained by the authors under the freedom of information act); u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2013) (obtained by the authors under the freedom of information act). as figure 7 demonstrates, latinx complainants fare substantially better in new jersey than in new york. this is surprising because new york state has long been acknowledged as an black americans region ii (mid-atlantic north) n = 2 state level: black americans region ii (mid-atlantic north) n = 2 state level: 2025] jim crow north 1228 innovator in authorizing fair housing laws114 and was “clearly the national leader in fair housing law” prior to the passage of the federal fair housing act.115 even so, as emphasized later,116 certain cities and metropolitan areas in new york and new jersey have historically had exceptionally high rates of residential and school segregation for both black and latinx americans when compared to other jim crow north states and the country overall.117 figure 7 favorability rates by hud and fhap agencies in region ii (mid-atlantic north) for race and national origin complaints filed by latinx americans, 1989–2010 source: u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2005) (obtained by the authors under the freedom of information act); u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2013) (obtained by the authors under the freedom of information act). 114 see, e.g., laurence d. pearl & benjamin b. terner, survey: fair housing laws—design for equal opportunity, 16 stan. l. rev. 849, 850–51, 873–75, 884–86 (1964); robison supra note 39, at 110–26. 115 sander, kucheva, & zasloff, supra note 4, at 124. 116 see infra text accompanying notes 125–50. 117 see, e.g., danielle cohen, nyc school segregation: a report card from the ucla civil rights project; still last, action needed now, 39–47 (2021), https://eric.ed.gov/?id=ed613550 [https://perma.cc/4yyw-7pjv]; mary ann koruth, judge says new jersey failed to address ‘persistent racial imbalance’ in its public schools, usa today (oct. 9, 2023), https://www.usatoday.com/story/news/education/2023/10/09/new-jersey-persistentsegregation-schools/71115416007/ [https://perma.cc/6hlz-hgar]. latinx americans region ii (mid-atlantic north) n = 2 state level: latinx americans region ii (mid-atlantic north) n = 2 state level: 1229 colum. j. race & l. [vol. 15:1193 d. comparing regions finally, figure 8 compares favorable outcomes for title viii complaints across regions i, ii, and iii. on average, black and latinx complainants fare best in region i. however, both sets of complainants experience the least success in region ii. what considerations could explain this surprisingly low favorable outcome rate in region ii? a closer look at new york and new jersey promotes a broader understanding of this low rate of success attained by fair housing act complainants. figure 8 favorable outcomes for black and latinx americans claiming racial or national origin discrimination by region, 1989–2010 source: u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2005) (obtained by the authors under the freedom of information act); u.s. dep’t of hous. & urb. dev., office of fair housing and equal opportunity data set (2013) (2013) (obtained by the authors under the freedom of information act). 2025] jim crow north 1230 v. new york and new jersey part v of this article has two objectives: to highlight four basic facts about new york and new jersey that are critical to this analysis and then attempt to link those facts to these states’ low favorable outcomes in title viii complaints filed by latinx and black americans. the four facts are new york and new jersey’s high levels of (1) residential, (2) school, and (3) economic segregation, and (4) their lack of local jurisdictions participating in hud’s fair housing assistance program. regrettably, there are many moving parts to this analysis—intertwined in complicated ways—that affect favorable outcomes in an unknowable number of title viii complaints in both states. therefore, this study cannot prove that region ii’s low favorability rates in title viii cases are caused by one or more of these four factors. yet an evaluation of these factors suggests that one or more such causal links are not only conceivable but likely. a. residential segregation many have long viewed the northeast as a leader in civil rights. before the passage of title viii, several northeastern states played prominent roles in the american fair housing movement by enacting innovative-sounding laws.118 new york and new jersey were two of the most important among such states, with new york state and new york city often leading the way. according to the u.s. commission on civil rights, in 1959, “new york state had the longest and widest experiences with laws against discrimination in publicly-assisted housing, and 118 see, e.g., u.s. comm’n on civ. rts., supra note 39, at 399–415. for a detailed examination of the content and spread of state and local fair housing laws and policies between 1919 and 1968, see charles s. bullock, iii, & charles m. lamb, the diffusion of american fair housing law and policy, 105 soc. sci. q. 2039 (2024). that study emphasizes that “[p]rogressive subnational governments can promote the rights of politically marginalized individuals and groups when the national government and other subnational jurisdictions do not.” id. at 2039. it also finds that new jersey and especially new york state had progressive fair housing laws and policies during those five decades compared to other states. id. at 2040–41; 2045–50. however, obviously, the passage of these laws does not necessarily mean that they were effectively and efficiently enforced, either before or after title viii’s enactment. 1231 colum. j. race & l. [vol. 15:1193 new york city had a law against discrimination in private housing.”119 two years later, the commission labeled new york a “pioneer state in civil rights laws”120 after observing that the state’s first fair housing law provided foreign immigrants “the right to acquire and transfer housing property for 6 years after filing a notice of intent to become a citizen.”121 civil rights scholars and fair housing advocates reached similar conclusions. joseph robison wrote that “[o]ne of the earliest effective anti-discrimination laws was adopted in new york state in 1939, applicable to all housing built under the state housing statutes.”122 according to robison, “[i]t provided simply, ‘for all the purposes of this chapter, no person shall, because of race, creed, color or national origin, be subjected to any discrimination.’”123 lawrence pearl and benjamin terner concluded that new york was “a pioneer both in state and in municipal fair housing legislation” and that “[t]he most comprehensive fair housing laws [in 1964 were] those of new york and massachusetts,” as these laws contained a “detailed description of unfair housing practices, provision for an administrative commission, procedures for handling complaints, and a method of obtaining judicial review.”124 however, many historians and sociologists reached less positive conclusions because large metropolitan areas in new york and new jersey have long experienced housing segregation and discrimination. for example, columbia university’s eminent urban historian, kenneth t. jackson, stressed that new york city’s 1916 zoning ordinance—the first of its kind— had the effect of not only “limiting land speculation and congestion” but also of keeping out 119 u.s. comm’n on civ. rts., supra note 39, at 399. 120 u.s. comm’n on civ. rts., housing: 1961 united states commission on civil rights report 120 (1961). 121 id. at 121. 122 robison, supra note 39, at 110. 123 id. (quoting n.y. pub. housing law § 223 (1955))(emphasis added). 124 pearl & terner, supra note 111, at 884, 851. 2025] jim crow north 1232 “[b]lac[k] [americans] and people of limited means.”125 following new york city’s lead, 76 cities had approved comparable zoning laws by 1926, and 1,322 municipalities adopted them over the next decade.126 zoning, with its setback requirements and minimum lot sizes, became stylish in america’s suburbs as a way to fence out “undesirables.”127 other historical research presents more conventional insights into fair housing developments in the northeast. thomas sugrue’s sweet land of liberty delves into housing discrimination and segregation in pennsylvania, new york, and new jersey, where levittowns symbolized the region’s fondness for suburban racial and ethnic exclusion during the post–world war ii era.128 sociological research also supports the finding of persistent housing segregation in america by relying on census data to calculate residential segregation patterns in u.s. metropolitan areas.129 in 2011, john logan and brian stults identified three key trends when 2010 data were compared with figures from earlier decades. first, decreases in black-white housing segregation since 2000 were similar to what it was in the 1990s.130 residential segregation between black people and white people was highest in 1960 or 1970, they note,131 125 kenneth t. jackson, crabgrass frontier: the suburbanization of the united states 242 (1985). 126 id. 127 id. see also, e.g., michael n. danielson, suburban autonomy, in the politics of exclusion (1976); david m. p. freund, colored property: state policy and white racial politics in suburban america 60– 70 (2007); richard rothstein, the color of law: a forgotten history of how our government segregated america 48–57 (2017); trounstine, supra note 14, at 5–9. 128 sugrue, supra note 14, at 200–02, 210–12, 222–27. as explained by sugrue, levittowns were named after william levitt, a real estate developer from new york who became a leader in the mass production of affordable suburban housing from the late 1940s to the early 1960s. levitt was known for refusing to sell homes to black, asian, latinx, and native americans. 129 see, e.g., reynolds farley &william h. frey, changes in the segregation of whites from blacks during the 1980s: small steps toward a more integrated society, 59 am. socio. rev. 23 (1994) (using census data to analyze segregation patterns in 1990 and trends in segregation between 1980 and 1990); massey & denton, supra note 15, at 20–25, 46–48, 63–66, 70–77. 130 john r. logan & brian j. stults, the persistence of segregation in the metropolis: new findings from the 2010 census 2 (2011), https://s4.ad.brown.edu/projects/diversity/data/report/report2.pdf [https://perma.cc/npz8-x2aj]. 131 id. 1233 colum. j. race & l. [vol. 15:1193 but it very gradually dropped between 1980 and 2010.132 second, latinx and asian americans were substantially less segregated than black americans.133 in addition, because the size of our latinx and asian populations are increasing, their ethnic enclaves are inclined to become more homogeneous and isolated than they were before 1980.134 third, the localities where the average black, latinx, and asian americans live continue to be vastly different racially from where the average non-hispanic white person resides.135 and even though more people of color are moving to the suburbs, they often cannot gain access to predominantly white areas.136 logan and stults’s 2011 report shows that the country’s thirdand fourth-most blackwhite segregated metropolitan areas with the largest black populations were, respectively, new york-white plains-wayne, ny-nj, and newark-union, nj-pa.137 their calculations similarly demonstrate that the new york city and newark metro areas with the largest hispanic populations ranked second and third nationwide with respect to hispanic-white segregation and that the edison-new brunswick, nj, and the new york-white plains-wayne, ny-nj, metropolitan areas with the greatest asian populations ranked first and second, respectively, in terms of asian-white segregation.138 generally, then, racial and ethnic housing segregation is widespread with respect to black, hispanic, and asian people in the new york city and newark metropolitan areas. 132 id. 133 id. 134 id. 135 id. 136 id. 137 id. at 6. 138 id. at 12–18. 2025] jim crow north 1234 more recently, new york governor kathy hochul released an in-depth report in 2023 on residential segregation and the impediments to equal housing opportunity in her state.139 among other things, the report emphasized that segregated housing patterns exist throughout new york state and that “access to community resources, poverty, and substandard housing conditions consistently fall along segregated racial and ethnic lines.”140 the report concluded that 33% of all new york residents lived in “highly white/non-white segregated counties,” while 44% of downstate counties had similar levels of segregation.141 notably, about 95% of black households resided in new york counties with high black/white segregation.142 compounding this problem, only about a third of black households and a quarter of latinx households owned their homes, compared to two-thirds of white households.143 the report concludes with the claim that new york state has “succeeded in continuing to pass legislation and engage in partnerships aimed at strengthening the fair housing law and its enforcement,” and that it would “continue to confront and address the enforcement of the enhanced protections created by” state law.144 but only time will tell whether the segregation that has long plagued the new york state and new york city housing markets will be meaningfully reduced, and whether fair housing enforcement will be appreciably improved. given the comparative data in figure 8, significant increases in favorable outcomes for both black and latinx title viii complainants are necessary 139 n.y.s. off. of governor kathy hochul, governor hochul releases fair housing report revealing segregated housing patterns and obstacles to housing opportunities across new york (may 5, 2023), https://www.governor.ny.gov/news/governor-hochul-releases-fair-housing-report-revealing-segregated-housingpatterns-and [https://perma.cc/fef6-yf66]. 140 n.y.s. div. of hous. & cmty. renewal, fair housing matters ny: an assessment of fair housing in new york state 1 (apr. 2023), https://hcr.ny.gov/system/files/documents/2023/05/2023-fair-housingmatters-ny-public-cmt-draft-june-16-deadline.pdf. 141 id. at 40. 142 id. 143 id. at 30. 144 id. at 200–01. no comparable report has ever been conducted in new jersey to our knowledge. 1235 colum. j. race & l. [vol. 15:1193 for new york to enforce its substantially equivalent fair housing law as well as delaware, new hampshire, rhode island, connecticut, and pennsylvania enforce theirs. overall, then, it seems reasonable to conclude that new york’s deep-rooted housing segregation—and probably that of new jersey as well—would be weakened over time by significantly higher rates of favorable outcomes in fair housing act complaints investigated, conciliated, and closed by federal, state, and local civil rights agencies. b. educational segregation educational segregation in the jim crow north is directly related to residential segregation, as is true in most of the nation. as ucla’s gary orfield explains, “[s]egregated urban school systems are built on a base of housing segregation. the vast differences between inner-city and suburban schools help determine where families with choices will live.”145 this nation’s system of housing and school segregation is “rooted in a variety of public and private forms of discrimination that operated for many decades and have not been fundamentally changed by weak and very thinly enforced fair housing laws.”146 hence, the high levels of housing segregation in new york and new jersey likely explain why region ii may have more school segregation than regions i and iii. relatedly, the lower rates at which region ii fair housing act complaints are resolved in favor of the complainant may contribute to even higher levels of housing and school segregation. 145 gary orfield, housing and the justification of school segregation, 143 u. pa. l. rev. 1397, 1398 (1995). 146 id. orfield argues that “[t]he issue of housing deserves much more sophisticated consideration because theories of housing change are very directly related to decisions about ending school desegregation. if housing segregation is caused or strongly affected by school desegregation plans, then any plan for lasting integration must take housing into account.” id. at 1404. 2025] jim crow north 1236 another significant study by gary orfield and danielle jarvie finds that from 1968 until 2018, the northeast never seriously desegregated its schools.147 “urban desegregation in the south was ordered in 1971, and in a much weaker form in the north in 1973 but was critically limited by 1974.”148 nor have there been any “major legal or policy advances since that time,” orfield and jarvie write.149 relying on nationwide data, orfield and jarvie demonstrate that from 2000 to 2018, black student enrollment in northeastern public schools decreased marginally, from 15.4% to 14.0%.150 in contrast, white student enrollment in public schools plunged from 67.4% to 52.9%.151 many white parents in new york and new jersey’s large cities transferred their children to private schools. as a result, black students attending intensely segregated (90– 100%) non-white schools climbed from 42.7% in 1968 to 51.5% in 2018.152 ultimately, low favorable outcomes in latinx and black fair housing act complaints reinforce the residential and educational segregation that remain entrenched in new york and new jersey after many decades. in terms of schools, a higher rate of favorable title viii outcomes would constitute a valuable step in this nation’s quest to provide equal educational opportunity for all persons living in the united states. the relationship is probably stronger in terms of undermining housing segregation, but it is advantageous with respect to school desegregation as well. 147 orfield & jarvie, supra note 105, at 28–29. 148 id. at 5. 149 id. 150 id. at 20. 151 id. 152 id. at 29. the figures cited pertain to the northeast more broadly. for historical insights into school desegregation efforts in the new york city metropolitan area, see, e.g. biondi, supra note 16; taylor, supra note 16. 1237 colum. j. race & l. [vol. 15:1193 c. economic segregation there is a relationship not only between residential and school segregation in the jim crow north but also between income segregation and the former two. income, and its role in determining housing affordability, is often a significant factor in families’ choices about where to live. as such, income tends to influence not only residential living patterns but also the socioeconomic composition of an area’s schools. regrettably, there are many moving parts once the economic segregation variable is added to the equation—intertwined in various complicated ways—that affect favorable outcomes in an unknowable number of title viii complaints in new york and new jersey. even though untangling and measuring these relationships is baffling, economic segregation plays a role in understanding the larger picture in the jim crow north. it is well established that income segregation has grown since the 1970s153 and that it is exceptionably noticeable in various parts of the northeast. for example, sean reardon and kendra bischoff discovered that in 2007, the new york-wayne-white plains, ny-nj metro area had the second highest level of family income segregation in the nation, with half of all its neighborhoods being either poor or affluent.154 this surely overlaps with the housing and school segregation in new york and new jersey: where there is economic segregation, there is also residential and educational segregation. thus, for decades, policy makers and scholars have recognized the links in the “chain of racial discrimination” in america. as put by president lyndon johnson, black adults are seriously harmed by housing discrimination, as are their 153 sean reardon and kendra bischoff find that “[t]he share of the population in large and moderate-sized metropolitan areas who live in the poorest and most affluent neighborhoods has more than doubled since 1970.” sean f. reardon & kendra bischoff, more unequal and more separate: growth in the residential segregation of families by income, 1970–2009 0 (2011), https://s4.ad.brown.edu/projects/diversity/data/ report/report111111.pdf [https://perma.cc/542g-vykt]. 154 id. at 17–18. 2025] jim crow north 1238 children and the black community. “where housing is poor, schools are generally poor. unemployment is widespread,” he insisted.155 “family life is threatened. the community’s welfare burden is steadily magnified.”156 “these,” johnson argued, “are the links in the chain of racial discrimination.”157 or as the famous swedish sociologist gunnar myrdal explains, “[i]n an interdependent system of dynamic causation there is no ‘primary cause’ but everything is cause to everything else.”158 as the nation becomes more racially diverse, americans will have to face the reality of racially mixed communities, schools, and workplaces. but a key consideration in the future is economic integration, an idea that is unpopular among many. racial housing discrimination has subsided to some extent in the last several decades,159 and people of different colors and ethnic backgrounds can coexist more peacefully and live in the same neighborhoods more so today than in the past. yet the rich and the poor remain segregated, with the latter often occupying the nation’s most undesirable housing stock in or near the urban core. most americans hold their wealth in home equity, and the discriminatory practices that prevented black and latinx people from buying homes in the mid-twentieth century have compounding effects on economic segregation with every generation.160 even average americans, in an attempt to protect their 155 special message to the congress recommending a program for cities and metropolitan areas, 1 pub. papers 89 (jan. 26, 1966). 156 id. 157 id. 158 gunnar myrdal, an american dilemma: the negro problem and modern democracy 78 (1944). 159 see supra note 3 and accompanying text. see, e.g., sander, kucheva & zasloff, supra note 4 (noting that by the mid-1970s, flagrant residential discrimination had declined and become less of an absolute barrier for black americans seeking housing in predominantly white neighborhoods). see also, margery austin turner, et al., supra note 5 (discussing how more subtle practices of housing discrimination have arisen since the 1970s). 160 see, e.g., rashawn ray, andre m. perry, david harshbarger, samantha elizondo, & alexandra gibbons, homeownership, racial segregation, and policy solutions to racial wealth equity (2021), https://www.brookings.edu/articles/homeownership-racial-segregation-and-policies-for-racial-wealth-equity/ [https://perma.cc/63t9-3592] (emphasizing that 75.8% of white families own their homes, compared to 1239 colum. j. race & l. [vol. 15:1193 families, property, and quality of life, may continue to try to keep the poor out of their neighborhoods by resisting the construction of low-income or affordable housing.161 again, low favorable outcomes in title viii complaints are likely associated with the preferences of people and groups with the greatest influence at the state and local levels of government. thus, if subnational governmental decisions mainly embody the demands of the most influential people and groups, and if economic segregation is actually the predisposition of many prominent people and groups in a state, we would anticipate that civil rights agencies in these states would respond by resolving a low proportion of fair housing act complaints in favor of latinx and african american complainants.162 it follows that even if racial residential and educational segregation substantially decline over time, economic segregation may persist, as will its effects. however, given the data currently available, it is impossible for this study to measure the extent to which majority preferences for residential, educational, or economic segregation affect title viii enforcement. e. the lack of local fhap agencies new york and new jersey have few fhap agencies. in 2024, new york had one local agency, the westchester county human rights commission.163 none operated in new jersey.164 previous hud fair housing reports to congress included no references to local fhap agencies only 46.4% of black families, and that homes in black communities are “valued at $48,000 less than predominately white neighborhoods for a cumulative loss in equity of approximately $156 billion.”). 161 see, e.g., harvard law review association, addressing challenges to affordable housing in land use law: recognizing affordable housing as a right, 135 harv. l. rev. 1104, 1108 (2022) (discussing how local planning boards are often subject to capture due to some homeowners’ fear that new housing developments for lowerincome and minority residents will lead to certain negative consequences for their neighborhood). 162 see supra text accompanying notes 104–05. 163 fair housing assistance program (fhap) agencies, u.s. dep’t of hous. & urb. dev., https://www.hud.gov/program_offices/fair_housing_equal_opp/partners/fhap/agencies [https://perma.cc/2e8xdt8v] (last visited october 30, 2024). 164 id. 2025] jim crow north 1240 in new jersey.165 yet, at one point in time, new york had others in new york city, albany, geneva, and rockland county.166 is there a relationship between the shortage of local fhap agencies in these two states and their low rates of favorable outcomes in title viii complaints? it is possible that such a relationship exists. the shortage of local fhap agencies in new york and new jersey may lead meritorious claimants to doubt whether local governments will actively address their concerns about housing discrimination and segregation. still, such a conclusion is speculative because of a lack of data. nonetheless, local fhap agencies have provided higher rates of favorable outcomes to fair housing act complaints than hud or state fhaps.167 and if local fhap agencies are more likely to provide favorable outcomes than hud or state fhap agencies, then those favorable outcome results will naturally feed back into the residential and education segregation variables. it stands to reason then that the absence of local agencies in new york and new jersey has likely contributed to these states’ low rates of favorable outcomes, limited enforcement of fair housing laws, and high levels of housing segregation. since hud processes most complaints in region ii, whether those hud offices apply less exacting standards than in other regions may be an area of future research. conclusion no matter what laws require, two critical questions normally remain: are they effectively enforced? and if not, how can their implementation be changed to improve enforcement? this is particularly true of civil rights laws in a nation marked by many forms of discrimination 165 id. fhap was created in 1979. see u.s. comm’n on civ. rts., prospects and impact of losing state and local agencies from the federal fair housing system 5-6 (1992). this article’s authors examined all hud fheo annual reports from 1980 to 2023 and found no reference to a local fhap agency in new jersey. 166 u.s. dep’t of hous. & urb. dev., supra note 95, at 38; u.s. dep’t of hous. & urb. dev., supra note 77, at 66. 167 bullock, lamb, & wilk, supra note 23 at 728, 738, 740–41. 1241 colum. j. race & l. [vol. 15:1193 throughout its history. this article assumes that if a law can be effectively enforced in the united states, effectiveness can be measured by calculating favorable outcomes of the administrative enforcement process. this does not mean that federal, state, and local fair housing agencies always “correctly” decide favorable outcomes for title viii complainants. sometimes, they make mistakes. but overall, measuring favorable outcomes is a legitimate way to explore the effectiveness of fair housing enforcement. the lower the favorable outcome rates are, the more likely that fair housing laws are not being rigorously enforced. three conclusions emerge from the above analysis of fair housing act enforcement in the northeastern united states. first, considerable variations in favorable outcomes are apparent, even between adjacent states. for instance, the delaware state fhap agency favored black complainants 41.7% of the time, while in neighboring maryland, the state fhap agency had a 14.3% favorability rate. similarly, new hampshire’s favorability rate for black people was 36.2%, whereas vermont’s was 22.9%, and so on. this shows that bureaucracies in the same region of the country may differ dramatically in their handling of title viii complainants, even if they have similar demographic characteristics. although adjacent states may have different rates at which minorities’ complaints lead to relief, there is a tendency for each state to be relatively similar in the success of black and latinx americans, with both sets of minorities experiencing more success in some states than others. this pattern was especially strong for region iii. a second finding is that complaints from latinx americans are generally more successful in a state than complaints filed by black people. in ten states, including all those in new england, the favorable outcome percentage for latinx complainants exceeded that for black americans. only in new york, west virginia, and maryland do black complainants come away 2025] jim crow north 1242 with favorable outcomes at higher rates than latinx complainants. the greater success of latinx people in these ten states could be explained by at least two considerations: there may be more anti-black bias than anti-latinx bias among government officials who resolve title viii complaints, or latinx people may be more reluctant to file government complaints than black individuals––especially if they or their family members are undocumented immigrants––so their complaints could deal with more serious or easily provable discriminatory offenses.168 third, prior research demonstrates that when federal, state, and/or local agencies enforce a national program, the level of government involved makes a difference. fhap agencies at both the state and local levels are often more effective at conciliating title viii complaints and providing remedies than hud.169 in the northeast, some states—such as delaware, new hampshire, and rhode island—decide in favor of title viii complainants much more often than do maryland, massachusetts, new jersey, or new york, with the latter two almost wholly lacking in local fhap agencies. the lower likelihood of success in new jersey and new york is probably partly due to the lack of local fhaps, the processing units before which title viii complainants are most likely to succeed nationally. while other studies address possible solutions to housing, school, and economic segregation,170 this article focuses on how to use the fair housing assistance program to improve title viii enforcement in region ii. in this regard, the 1992 recommendations of the 168 see the discussion in bullock, lamb, & wilk, supra note 104, at 2686–87 (2021) (suggesting possible explanations). 169 charles s. bullock, iii, eric m. wilk & charles m. lamb, bureaucratic effectiveness and civil rights enforcement, 49 state & loc. gov.’t rev. 87, 101 (2017). 170 the literature is substantial. on housing segregation and discrimination, see generally, john yinger, public policy to combat discrimination in housing: a comprehensive approach in closed doors, opportunities lost: the continuing costs of housing discrimination (1995). on school desegregation, see generally gary orfield, dismantling desegregation: the quiet reversal of brown v. board of education 345-61 (1996). on economic segregation, see generally tatiana walk-morris, eliminating racial segregation is good economic policy, plan. mag. (jan. 1, 2021), https://www.planning.org/planning/2021/winter/eliminating-racial-segregation-isgood-economic-policy/ [https://perma.cc/m5au-c886]. 1243 colum. j. race & l. [vol. 15:1193 u.s. commission on civil rights on the federal fair housing system are still reasonable and justifiable.171 first, mayors, other local officials, and local business leaders in new york and new jersey should work closely with hud to develop new incentive programs to increase the number of certified local fhap agencies in both states.172 second, congress and the current presidential administration should provide funds and other resources to new local fhap agencies in new york and new jersey to enable them to enforce the fair housing act effectively and efficiently at the grassroots level.173 third, hud should play an aggressive role in helping all local jurisdictions in new york and new jersey actively participate in the fair housing assistance program; this includes drafting new local fair housing laws that are substantially equivalent to title viii and being available to provide advice, training, and other assistance to these local governments so they can accomplish the objectives of the fair housing act.174 in the final analysis, congress and hud should hold all fhap agencies to a higher standard of performance in race and national origin title viii cases, which would naturally include those in region ii. a higher standard of enforcement performance is possible by fhap agencies because state and local legislatures have the power to require broader coverage of protected groups,175 the 171 u.s. comm’n on civ. rts, supra note 160, at 31–34. 172 id. at 32. 173 id. 174 id. at 33. 175 for instance, california’s fair employment and housing act, cal. gov’t code §§ 12900–12996, provides additional protections to some people of color by prohibiting housing discrimination based on source-ofincome, ancestry, genetic information, and hair texture and style. see charles s. bullock, iii, charles m. lamb, & eric m. wilk, memo to president biden on state and local fair housing enforcement, n.y.u. j. legis. & pub. pol’y quorum (2021). 2025] jim crow north 1244 use of more procedural tools in fair housing enforcement,176 and stronger powers to grant administrative relief to fair housing complainants.177 however, politics will play a vital role in determining whether fair housing enforcement will be strengthened in the foreseeable future and whether those changes will include overhauling fhap. donald trump’s 2024 re-election as president makes those goals incredibly unlikely. during his first term in office, president trump rescinded the obama administration’s attempt to comply with the fair housing act’s requirement of affirmatively furthering fair housing.178 some two weeks later, trump and his hud secretary, ben carson, published an opinion piece in the wall street journal: they claimed that “[t]he crime and chaos in democratrun cities” were destroying suburbs and that president obama’s hud regulations to further fair housing would “abolish single-family zoning, compel the construction of high-density ‘stack and pack’ apartment buildings,” causing the suburbs to “look and feel the way far-left ideologues and technocratic bureaucrats think they should.”179 later, president trump attacked joe biden’s fair housing proposals, insisting that biden would “abolish the suburbs” and telling voters, “you’re 176 beyond the comparable enforcement powers of the federal government under the fair housing act of 1968, in 1985, thirteen fhap agencies were authorized to issue cease-and-desist orders in housing discrimination cases, twelve could hold public hearings based on the presumption that publicity encourages nondiscrimination, eleven could issue injunctions, and fifteen could initiate complaints or court action. see abt assoc. inc., the fair housing assistance program evaluation 106 (1985). 177 the 1985 abt associates inc. report found that of the fifteen fhap agencies surveyed, fourteen could award actual damages without using the conciliation process, eight could recommend the revocation of brokers’ licenses, seven could award punitive damages, and six could obtain imbursements for pain and suffering. id. at 106– 07. 178 see, e.g., heather r. abraham, fair housing’s third act: american tragedy or triumph? 39 yale l. & pol’y rev. 1, 10–11, 39–40, 47–48 (2020). 42 u.s.c. §3608(d) contains title viii’s affh mandate, which declares, “[a]ll executive departments and agencies shall administer their programs and activities relating to housing and urban development (including any federal agency having regulatory or supervisory authority over financial institutions) in a manner affirmatively to further the purposes of this subchapter and shall cooperate with the secretary to further such purposes.” 179 donald j. trump & ben carson, opinion, we’ll protect america’s suburbs, wall st. j. (aug. 16, 2020), https://www.wsj.com/articles/well-protect-americas-suburbs-11597608133. 1245 colum. j. race & l. [vol. 15:1193 not going to have low-income housing built right next to you, which drives down your housing value, and a lot of crime comes in.”180 but that was only president trump’s initial attack on the right to fair housing and its enforcement. at the beginning of trump’s second term, three actions—all swift and harsh— highlighted his even stronger opposition to equal housing opportunity and federal fair housing enforcement. first, president trump and elon musk, the head of the president’s department of government efficiency (doge), were determined to force the early retirements of hud employees, especially at the office of fair housing and equal opportunity, which is primarily responsible for overseeing the enforcement of federal fair housing law, including the fair housing act of 1968.181 forcing a large number of key retirements in hud’s office of fair housing and equal opportunity, whether at agency headquarters in washington, d.c. or in its field and regional offices nationwide, could be devastating for federal fair housing enforcement, as would firing important hud fair housing officials who refuse to retire. if federal fair housing enforcement needs dramatic improvement, an enforcement effort without significant experience and expertise would be inimical to achieving such improvement.182 yet, according to the 180 donald j. trump quoted in zack stanton, trump doesn’t understand today’s suburbs—and neither do you, politico (aug. 6, 2020, 4:30 am), https://www.politico.com/news/magazine/2020/08/06/suburbs-history-racepolitics-391966. 181 see matthew cullen, trump defended musk’s cost-cutting effort, n.y. times (feb. 7, 2025), https://messaging-customnewsletters.nytimes.com/dynamic/render?campaign_id=57&emc=edit_ne_20250207&instance_id= 146980&isviewinbrowser=true&nl=the-evening&paid_regi=0&productcode=ne&regi_id=101230296 &segment_id=190451&sendid=190451&uri=nyt://newsletter/9f311f64-aada-55b4-9a43-fb26f242069f &user_id=c381d9629074a2326a73a23fac978056. the following assessment of the second trump administration and fair housing was written prior to may 2025. as of that time, of course, one could only speculate about what legal and policy directions the administration might take prior to the 2028 presidential election. 182 between september 2010 and december 2022, hud lost about 18% of its federal employees, leading marcia fudge, president biden’s hud secretary, to advise a senate committee, “[u]ntil we can start to build up our staff, and build up our capacity, we are at risk of not doing the things we should do.” mekela panditharatne, rebuilding federal agencies hollowed out by trump and congress, brennan ctr. for just. (apr. 5, 2023), 2025] jim crow north 1246 associated press (ap), president trump intends to make extreme cutbacks in the staff of fheo, which is primarily responsible for enforcing title viii at the federal level. based on the ap report, the trump administration proposal would reduce fheo’s staff “from 572 employees . . . to 134 people [meaning] a nearly 77% reduction to the program—the type of bone-deep cut” that fair housing proponents feared of president trump.183 on march 11, 2025, will fischer of the center on budget and policy priorities updated the list of anticipated staff slashes at hud.184 fischer summarizes the administration’s targets, writing that musk and doge plan on firing a least half of hud’s overall staff, including 77% of those at fheo as well as 84% of hud employees that provide homelessness assistance, promote affordable housing, and help with disaster recovery.185 about two weeks later, the shriver center on poverty law reported that americans would hear of policy changes in fair housing, but “the deeper crisis is the systematic dismantling” of hud’s programs intended to https://www.brennancenter.org/our-work/analysis-opinion/rebuilding-federal-agencies-hollowed-out-trump-andcongress [https://perma.cc/5sz5-62ev]. 183 sally ho & jesse bedayn, trump administration looks to slash hud workers tackling the housing crisis at 4, ap news, https://apnews.com/article/doge-hud-trump-turner-affordable-housing-musk0176c8539fa9b5959198c351c97b8652 (last visited mar. 10, 2025). for the impact of cutting fheo staff in hud’s chicago office, see lizzie kane, local hud workers terminated in recent trump administration cuts, chicago tribune (feb. 26, 2025), https://www.yahoo.com/news/local-hud-workers-terminated-recent224000266.html?guccounter=1&guce_referrer=ahr0chm6ly93d3cuz29vz2xllmnvbs8&guce_referrer_sig=aq aaacvrrdmlzw5lydjzswcmrvau9pjlzi9ectyxtaddpaqwbaowzemqrx41zj1b0taqqac9geydqqt7v6k 4uwgtuybm8amxqunjbdvbgcihxkp4fz5uxq1ca14z7axm6zb_3djbfuxfzgv0duuomptdxqremd8uze23mhocxcxvzwd. kane reports on one fheo probationary employee in chicago whose work “primarily focused on fair housing investigations that looked into how systemic issues such as redlining continue to negatively affect certain groups of people and their housing choices.” suggesting that the chicago office was “‘slightly’” understaffed,” the employee stated there was a “‘ginormous’ backlog of [fair housing] complaints.” see generally jennifer ludden, hud employees are bracing for what they hear will be ‘drastic’ staff cuts, buff. toronto pub. media (feb. 14, 2025), https://www.wbfo.org/2025-02-14/hud-employees-are-bracing-for-whatthey-hear-will-be-drastic-staff-cuts (observing that hud offices responsible for dealing with civil rights laws, homelessness, affordable housing, disaster relief, and research on housing issues “could lose most” of their employees). 184 will fischer, doge-driven hud cuts will make it harder for people to afford housing, exit homelessness, ctr. on budget & pol’y priorities (mar. 11, 2025), https://www.cbpp.org/blog/doge-driven-hudcuts-will-make-it-harder-for-people-to-afford-housing-exit-homelessness. 185 id. https://apnews.com/article/doge-hud-trump-turner-affordable-housing-musk-0176c8539fa9b5959198c351c97b8652 https://apnews.com/article/doge-hud-trump-turner-affordable-housing-musk-0176c8539fa9b5959198c351c97b8652 https://www.yahoo.com/news/local-hud-workers-terminated-recent-224000266.html?guccounter=1&guce_referrer=ahr0chm6ly93d3cuz29vz2xllmnvbs8&guce_referrer_sig=aqaaacvrrdmlzw5lydjzswcmrvau9pjlzi9ectyxtaddpaqwbaowzemqrx41zj1b0taqqac9geydqqt7v6k4uwgtuybm8amxqunjbdvbgcihxkp4fz5uxq1ca14z7axm6zb_3djbfuxfzgv0duuompt-dxqremd8uze23mhocxcxvzwd https://www.yahoo.com/news/local-hud-workers-terminated-recent-224000266.html?guccounter=1&guce_referrer=ahr0chm6ly93d3cuz29vz2xllmnvbs8&guce_referrer_sig=aqaaacvrrdmlzw5lydjzswcmrvau9pjlzi9ectyxtaddpaqwbaowzemqrx41zj1b0taqqac9geydqqt7v6k4uwgtuybm8amxqunjbdvbgcihxkp4fz5uxq1ca14z7axm6zb_3djbfuxfzgv0duuompt-dxqremd8uze23mhocxcxvzwd https://www.yahoo.com/news/local-hud-workers-terminated-recent-224000266.html?guccounter=1&guce_referrer=ahr0chm6ly93d3cuz29vz2xllmnvbs8&guce_referrer_sig=aqaaacvrrdmlzw5lydjzswcmrvau9pjlzi9ectyxtaddpaqwbaowzemqrx41zj1b0taqqac9geydqqt7v6k4uwgtuybm8amxqunjbdvbgcihxkp4fz5uxq1ca14z7axm6zb_3djbfuxfzgv0duuompt-dxqremd8uze23mhocxcxvzwd https://www.yahoo.com/news/local-hud-workers-terminated-recent-224000266.html?guccounter=1&guce_referrer=ahr0chm6ly93d3cuz29vz2xllmnvbs8&guce_referrer_sig=aqaaacvrrdmlzw5lydjzswcmrvau9pjlzi9ectyxtaddpaqwbaowzemqrx41zj1b0taqqac9geydqqt7v6k4uwgtuybm8amxqunjbdvbgcihxkp4fz5uxq1ca14z7axm6zb_3djbfuxfzgv0duuompt-dxqremd8uze23mhocxcxvzwd https://www.yahoo.com/news/local-hud-workers-terminated-recent-224000266.html?guccounter=1&guce_referrer=ahr0chm6ly93d3cuz29vz2xllmnvbs8&guce_referrer_sig=aqaaacvrrdmlzw5lydjzswcmrvau9pjlzi9ectyxtaddpaqwbaowzemqrx41zj1b0taqqac9geydqqt7v6k4uwgtuybm8amxqunjbdvbgcihxkp4fz5uxq1ca14z7axm6zb_3djbfuxfzgv0duuompt-dxqremd8uze23mhocxcxvzwd https://www.wbfo.org/2025-02-14/hud-employees-are-bracing-for-what-they-hear-will-be-drastic-staff-cuts https://www.wbfo.org/2025-02-14/hud-employees-are-bracing-for-what-they-hear-will-be-drastic-staff-cuts https://www.cbpp.org/blog/doge-driven-hud-cuts-will-make-it-harder-for-people-to-afford-housing-exit-homelessness https://www.cbpp.org/blog/doge-driven-hud-cuts-will-make-it-harder-for-people-to-afford-housing-exit-homelessness 1247 colum. j. race & l. [vol. 15:1193 eliminate residential discrimination and segregation.186 these budgetary alterations would leave only about 120 fheo personnel to process all fair housing complaints handled by hud annually, nationwide.187 as a result, the fheo scheme is “not just a cut—it’s a death sentence” for effective federal fair housing enforcement.188 the thurgood marshall institute, aligned with the naacp legal defense fund in new york, indicates these damages are directly linked to project 2025, the political plan to consolidate executive power in support of highly conservative policies, with the belief that donald trump would win re-election in 2024.189 the institute contends that project 2025 not only disagrees with america’s efforts to fight residential discrimination but promotes the view that fair housing programs “produce ‘intergenerational poverty traps’ and ‘discourage work, marriage, and meaningful paths to upward economic mobility.’”190 to achieve its objectives, project 2025 would fire many of hud’s experienced fair housing officials and give those jobs to short-term trump appointees.191 according to the institute, project 2025 believes that this approach would permit a president looking to undermine fair housing rights to act more quickly without congress’s approval.192 as of april 2025, the expectation remained that fheo’s staff would still be cut by 77%.193 186 the white house puts fair housing on the chopping block, shriver ctr. on poverty l. (mar. 27, 2025), https://www.povertylaw.org/article/hud-cuts-put-fair-housing-on-the-chopping-block/. 187 id. 188 id. 189 what project 2025 means for black communities: equal access to housing, ldf thurgood marshall inst., https://tminstituteldf.org/equal-access-to-housing-project-2025/ (last visited apr. 4, 2025). 190 id. 191 id. 192 id. 193 debra karmin, watch dog agency to investigate attempted cuts to fair housing groups, n.y. times (apr. 1, 2025), https://www.nytimes.com/2025/04/01/realestate/fair-housing-investigation.html. https://tminstituteldf.org/equal-access-to-housing-project-2025/ 2025] jim crow north 1248 the second action demonstrating trump ii’s opposition to equal housing opportunity and federal fair housing enforcement is the appointment of scott turner as the new hud secretary.194 shortly thereafter, turner eliminated the affirmatively furthering fair housing (affh) policy of the obama and biden administrations.195 according to turner, terminating the affh policy “restores trust in local communities and property owners, while protecting america’s suburbs and neighborhood integrity.”196 yet it is unlikely that this conservative turnaround on affh will lessen the wide-ranging housing segregation in the united states, even though it could encourage some local governments to join or rejoin fhap if its certification standards were lowered. third, president trump and elon musk significantly reduced funding for hud’s fair housing initiatives program (fhip), which provides grants to private nonprofit organizations to help people who think they were discriminated against in the housing market.197 sixty fhip 194 regarding turner’s background in housing policy, see jesse coburn & andy kroll, trump’s hud secretary has a history of fighting housing assistance, proprublica (dec. 23, 2024), https://truthout.org/articles/trumps-hud-secretary-pick-has-a-history-of-fighting-housing-assistance/ [https://perma.cc/k3hk-pyhf]. coburn and kroll conclude that turner “may soon oversee the nation’s efforts to build affordable apartments, protect poor tenants and aid the homeless.” they add that “[a]s a lawmaker in the texas house of representatives, turner voted against those very initiatives.” see also colin gordon, trump’s next hud secretary would have a lot to do to address the history of racist housing policy—and trump’s own comments and history suggest that’s unlikely, the conversation (nov. 26, 2024), https://theconversation.com/trumps-nexthud-secretary-would-have-a-lot-to-do-to-address-the-history-of-racist-housing-policy-and-trumps-own-commentsand-history-suggest-thats-unlikely-240646 [https://perma.cc/b2x9-6l4l]. gordon argues that turner “is poised to pick up where the first trump “heritage foundation’s sweeping blueprint for the second trump administration. penned by ben carson, trump’s first hud secretary, it proposes a radical retreat from federal ‘overreach’ that would include gutting anti-discrimination provisions in federal programs and deferring to localities on zoning.” project 2025, gordon notes, “would also bar noncitizens from public housing and reverse ‘all actions taken by the biden administration to advance progressive ideology.’” 195 see u.s. dep’t of hous. & urb. dev., secretary scott turner cuts red tape by terminating affh rule, https://www.hud.gov/press/press_releases_media_advisories/hud_no_25_034 [https://perma.cc/apf6-97xv](last visited mar. 29, 2025). in 2020, the first trump administration eliminated hud’s affh policy developed under barack obama, but it was restored under joe biden. 196 id. 197 see jesse bedayn, trump administration to slash funding, ap news (feb. 28, 2025), https://apnews.com/article/trump-doge-housing-crisis-cuts-discrimination-d0c6e3b4b030787a1f60a7dc153153dd. https://truthout.org/articles/trumps-hud-secretary-pick-has-a-history-of-fighting-housing-assistance/ https://apnews.com/article/trump-doge-housing-crisis-cuts-discrimination-d0c6e3b4b030787a1f60a7dc153153dd 1249 colum. j. race & l. [vol. 15:1193 agencies were informed in march 2025 that hud was discontinuing their grants because they “no longer effectuate the program goals or agency priorities.”198 the shocking effects of these funding reductions were promptly reported in several states.199 fhip organizations in four states filed suit against doge and hud, maintaining that an “egregious overstep” by the trump administration occurred when it rescinded about $30 million in funding previously approved by congress.200 during these uncertain times, “fasten your seatbelts, it’s going to be a bumpy” ride.201 it is difficult to know where the administration’s early chaos will eventually lead fair housing policy and its enforcement at the federal level, not to speak of the subnational levels. they may remain moving targets for some time—or even persist throughout the president’s second administration. proponents of progressive fair housing changes will likely have to wait at least one presidential administration to significantly improve title viii enforcement, let alone to increase the chances of black and latinx complainants receiving higher favorable outcomes in new york and new jersey, where it is especially needed. simultaneously, fair housing proponents must keep in mind that state and local agencies are often the most effective in 198 quoted in joyce vance, the people trump and doge hurt, civ. discourse with joyce vance (mar. 14, 2025), https://joycevance.substack.com/p/the-people-trump-and-doge-hurt. it was later reported that 66 fhip agencies were notified about cuts amounting to $30 million in hud grants. debra kamin, cuts to housing nonprofits will spur discrimination, democrats say, n.y. times (mar. 17, 2025), https://www.nytimes.com/2025/03/17/realestate/warren-waters-hud-doge-budget-cuts.html. yet another account claims the administration was cutting “78 of 162 fhip grants.” jordan smith, doge slashes grant to indiana’s lone fair housing nonprofit, prompting class action lawsuit, indystar (mar. 17, 2025), https://www.indystar.com/story/news/local/indianapolis/2025/03/17/trump-doge-cuts-hit-fair-housing-center-ofcentral-indiana-prompting-lawsuit/82468644007/. 199 for examples, see bedayn supra note 194; vance supra note 195; damin supra note 195. 200 debra kamin, housing discrimination groups sue doge and hud for cutting funds, n.y. times (mar. 14, 2025), https://www.nytimes.com/2025/03/13/realestate/fair-housing-discrimination-cutslawsuit.html?rsrc=flt&smid=url-share. 201 paraphrased quote from bette davis’s character in all about eve (twentieth century studios inc. 1950). https://www.nytimes.com/2025/03/13/realestate/fair-housing-discrimination-cuts-lawsuit.html?rsrc=flt&smid=url-share https://www.nytimes.com/2025/03/13/realestate/fair-housing-discrimination-cuts-lawsuit.html?rsrc=flt&smid=url-share 2025] jim crow north 1250 providing favorable outcomes in title viii claims.202 this underscores the importance of continued engagement at the subnational level,203 especially given the hostility to fair housing that is already coming from the national government during president trump’s early second term, and the fact that some areas with the most severe housing segregation problems are democratic strongholds.204 202 see generally lamb & wilk, supra note 107; bullock, lamb, & wilk, supra note 23. 203 see bullock & lamb, supra note 115, for an examination of state and local fair housing accomplishments before 1968. 204 see supra text accompanying notes 18, 22, 29, 38–40, 48–50, 52–55, 120, 123, 134–40. columbia journal of race and law vol. 12 july 2022 no. 1 adoption cannot be reformed ashley albert & amy mulzer† i. introduction.......................................................................................558 ii. adoption as family regulation ........................................................564 a. child-saving and the creating of legal adoption ....................566 b. georgia tann and the development of sealed records ............570 c. the “baby scoop” era ................................................................572 d. the rise of transracial adoption, the modern family regulation system, and the “permanency” ideal ......................574 1. the indian adoption project ..............................................574 2. the adoption of black children and the development of the modern family regulation system .........................575 3. asfa and adoption as “permanency” ...............................578 e. the present day ........................................................................581 iii. the harms of adoption .....................................................................585 iv. reform is not enough .......................................................................589 v. conclusion: broadening our vision ..................................................598  ashley albert is an activist and advocate in burien, wa, where she lives with her oldest son. she is a member of the steering committee for the repeal asfa campaign; a board member of the pacific northwest alternative peer group; and a member of the birth parent national network. she is also the former parent engagement coordinator for the washington state parents 4 parents program and has served as a facilitator for the washington state parent advocacy committee. ashley’s mother’s parental rights to her were terminated. and ashley grew up in the foster system. faced with a termination of parental rights petition as to her two youngest children, ashley entered into a conditional surrender of her rights and later became one of the first parents in washington state to successfully enforce and modify a post-adoption contact agreement. thanks to god, dorothy roberts, my co-author, and the symposium organizers for the opportunity to co-author two papers that allow me to tell the exact truth of the harms that my mother, myself and so many black women continue to reap the consequences from. thanks to the repeal asfa steering committee, jmac4families, movement for family power, the wa state coalition against domestic violence, and the jaspr health evidence based practice institute. thanks to my deceased sister angel pruitt, who survives through me; to my grandma for raising me and not giving me up; and to dr. linda dimeff and margaret hobart. last but not least, thank you to my children ronald, andre, and tyonni for loving me and being so worth fighting for. † amy mulzer is a senior staff attorney for law and appeals in the family defense practice at brooklyn defender services. she is the parent of two children through private, domestic adoption and a former kinship foster parent to a third. thanks to ashley albert for allowing me to write this piece with her and for our many great conversations; to hannah roman, sarah lorr, and katie weng for their very helpful comments on prior drafts; and to my clients and colleagues for always keeping up the fight. and to my children, their siblings, and their mothers—thank you for forgiving my (many) failures. 558 colum. j. race & l. [vol. 12:557 i. introduction five years ago, co-author ashley albert surrendered her parental rights to her two youngest children to the state of washington.1 in lawyerspeak, what ashley signed is termed a “voluntary” surrender, to distinguish it from an “involuntary” termination of parental rights entered after a contested hearing. but as ashley sees it, what she did was anything but voluntary. rather, on january 5, 2016, in a small conference room on the ninth floor of the king county superior court in seattle, ashley made the only choice she thought she had available to her at the time. her case was supposed to go to trial in just a few weeks, but her court-appointed attorney was unable to tell her what they were going to argue and confessed that she had not actually read through all the discovery materials—the record was “too long” for that. meanwhile, the state’s attorney was telling her that if she went to trial on the termination petition and lost, she would never see her children again. ashley could not live with that eventuality, and she did not want her kids to live with that either. since ashley and her children lived in washington—one of approximately twenty-nine states whose laws allow for enforceable postadoption contact agreements2—she had another alternative. the other parties told her she had five minutes to decide what she wanted to do: go to trial and take the risk that she would lose her children forever, or agree to surrender her rights on the condition that she be permitted postadoption visitation. ashley felt like she’d been hit with a crane; she had no idea how she could make this kind of decision in just five minutes. her lawyer was no help. ashley left the room and went into the stairwell. she kicked, screamed, sobbed, spit, and slapped the walls until her hands ached. she felt completely powerless. every part of her wanted to fight back—to fight for her children just as she had been fighting for them ever since they had been removed from her care—but she knew she could not. as her allotted five minutes came to an end, ashley took a deep breath and walked back to the conference room. she signed the paperwork, agreeing to give up her parental rights in exchange for an agreement that she could continue to have at least four visits and twelve phone calls with her sixyear-old son and four-year-old daughter per year, that she would be able to write to them, and that their names would not be changed upon adoption. in the current moment, long-standing ideas of abolishing rather than reforming prisons and the police have made it into mainstream discussions of police brutality and mass incarceration. similarly, as this symposium itself shows, critics of the family regulation system—including activists, scholars, attorneys, and those who have been directly affected— have begun to press harder to bring discussions of abolition of that system 1 because both co-authors will be including details from their own lives in this essay, we will be using the third person when writing about ourselves, to avoid confusion. 2 for a relatively up-to-date survey of state laws regarding post-adoption contact agreements, see child. bureau, u.s. dep’t of health & hum. servs., postadoption contact agreements between birth and adoptive families (2019), https://www. childwelfare.gov/topics/systemwide/laws-policies/statutes/cooperative/ [https://perma.cc/ 5leh-7d7f]. 2022] adoption cannot be reformed 559 into the mainstream.3 in both contexts, the case for abolition rests on two primary principles: (1) that the system in question is so inherently harmful that it should not—cannot—be reformed; and (2) that there are viable alternatives to address the issues the system currently purports to address. in the case of the carceral state, abolitionists have made headway regarding the first element; there is growing agreement among all but the most ardent defenders of policing and incarceration that both are central features of a larger system that causes substantial harms.4 yet the second element remains a sticking point for many who might otherwise support abolition: while abolitionists have long articulated a robust vision of a world without policing,5 many progressives still lack the imagination required to accept it. this essay will address one specific feature of the family regulation system that must be abolished, namely the practice of permanently severing the legal bonds between a parent and child and “replacing” them with new ones via formalized adoption. the argument for abolishing adoption merits consideration independent of discussions regarding the family regulation system as a whole for a number of reasons, not the least of which is the severity of the harms caused by termination of parental rights—the “death penalty” of the family regulation system.6 moreover, while the vast majority of family regulation cases do not end with 3 alongside other participants and contributors to the symposium, we use the language of “family regulation system” to refer to a “regime of public, private, and faithbased agencies and institutions, courts, and individuals authorized by force of law to surveil and intervene in families, remove children from their parents temporarily or permanently, terminate the parent-child relationship, and create new legal families.” nancy d. polikoff & jane m. spinak, foreword, strengthened bonds: abolishing the child welfare system and re-envisioning child well-being, 11 colum. j. race & l. 427, 433 (2021). except when historical context requires otherwise, this essay will refer to the “family regulation” system rather than the “child welfare” or “child protective” system, as that title more accurately reflects the operation and effect of this system. see also, e.g., emma williams, ‘family regulation,’ not ‘child welfare’: abolition starts with changing our language, imprint (july 28, 2020), https://imprintnews.org/opinion/family-regulation-not-child-welfareabolition-starts-changing-language/45586 [https://perma.cc/qhe9-du2y]. 4 see, e.g., sam levin, ’it’s not about bad apples’: how us police reforms have failed to stop brutality and violence, guardian (june 16, 2020), https://www.theguardian. com/us-news/2020/jun/16/its-not-about-bad-apples-how-us-police-reforms-have-failed-tostop-brutality-and-violence [https://perma.cc/wby4-k2j8] (pointing both to increased research and to increased public momentum concluding that reforms fail to address systemic harms); ram subramanian & leily arzy, state policing reforms since george floyd’s murder, brennan ctr. for just.: rsch. & reports (may 21, 2021), https://www.brennan center.org/our-work/research-reports/state-policing-reforms-george-floyds-murder [https:// perma.cc/a6ju-wnwe] (detailing many failures of reform but suggesting that “transformative change in policing remains elusive”). 5 for historic analyses by abolitionists directing us to post-policing futures, see generally ruth wilson gilmore, abolition geography and the problem of innocence, in futures of black radicalism (gayle theresa johnson & alex lubin eds., 2017); mariame kaba, we do this ‘til we free us: abolitionist organizing and transforming justice (2021); dean spade, mutual aid: building solidarity during this crisis (and the next) (2020); alex s. vitale, the end of policing (2017); ruth wilson gilmore & james kilgore, the case for prison abolition, marshall project (june 19, 2019), https://www.themarshallproject.org/2019/06/19/the-case-for-abolition [https://perma.cc/h2vt-mmg2]. 6 see, e.g., drury v. lang, 776 p.2d 843, 845 (nev. 1989) (characterizing the severance of the parent-child relationship as “tantamount to imposition of a civil death penalty”). 560 colum. j. race & l. [vol. 12:557 termination of parental rights and adoption, the potential that any case could so end is ever-present. both the threat of an eventual termination proceeding and the conception of adoption as the idealized, ultimate form of “permanency” for children in the foster system affect the trajectory of family regulation cases right from the beginning, as agencies, parents, and advocates assess and negotiate their options in the shadow of these possibilities. more fundamentally, adoption must be addressed separately from the family regulation system as a whole because adoption exists both inside and outside of that system. in the united states, domestic adoptions can be either “public”—adoptions of children out of the family regulation system—or “private,” arranged without the direct involvement of the state.7 private adoptions may be arranged directly between the child’s birth and adoptive parents8 or, more commonly, with the assistance of an adoption facilitator or adoption agency. while there are significant differences between these two types of adoption—primarily, the fact that private adoption is not the result of literal, violent state intervention into the family—they are fundamentally intertwined, both historically and today. as will be discussed further below, the underlying causes and social functions of both types of adoption are the same, as are many of the harms they cause. when it comes to adoption, the second element of the argument for abolition has already been addressed. we already have alternatives to adoption for those children whose parents truly are unable to care for them on a day-to-day basis, including formalized legal structures such as guardianship or third-party custody, and both legal and social science scholars have described the ways in which these permanency options serve children at least as well as, if not better than, termination of parental rights and adoption.9 in addition, there is growing recognition of the ways 7 this essay will not explicitly address international adoption, both because of space limitations and because our own personal and professional experiences are limited to domestic adoption. it is important to note, however, that international adoption has played an important role in the development of adoption in the united states and that many of the fundamental points made in this essay apply to international adoption as well. for critical discussions of international adoptions, see, e.g., laura briggs, somebody’s children: the politics of transracial and transnational adoption 129–240 (2012) [hereinafter briggs, somebody’s children]; kathryn joyce, the child catchers: rescue, trafficking, and the new gospel of adoption (2013) [hereinafter joyce, child catchers]; david m. smolin, the case for moratoria on intercountry adoption, 30 s. cal. interdisc. l.j. 501 (2021); david m. smolin, child laundering: how the intercountry adoption system legitimizes and incentivizes the practices of buying, trafficking, kidnaping, and stealing children, 52 wayne l. rev. 113, 115 (2006). for a powerful memoir by an international adoptee, see jane jeong trenka, the language of blood (2003). 8 the co-authors both strongly prefer to call the birth parents of adopted children what they are: their parents. when talking about adoption, however, there are times when we must apply a label to make our meaning clear. we will therefore refer to “birth” and “adoptive” parents at various points throughout this essay. moreover, while this essay uses the term “birth parents” because it is the term used most often in adoption literature and research, it is important to note that many persons in this role prefer other language, such as “first parent,” “natural parent,” or simply “parent.” 9 there are a number of law review articles—and a growing body of social science research—addressing the many reasons for prioritizing alternate forms of permanency, such as guardianship and third-party (non-parental) custody arrangements, over termination of parental rights and adoption. for a selection of important sources in the literature and 2022] adoption cannot be reformed 561 that adoption has failed both adoptees and their families, as advocates have pushed for adoptee access to their own records, enforceable postadoption contact agreements, and better training and support for transracial adoptive parents, especially around race and culture.10 after ignoring the needs of birth parents and adoptees for decades, adoption and foster care agencies, adoptive parent groups, and other groups that benefit research, see generally cynthia godsoe, permanency puzzle, 2013 mich. st. l. rev. 1113 (2013); josh gupta-kagan, the new permanency, 19 u.c. davis j. juv. l. & pol’y 1 (2015); sarah katz, the value of permanency: state implementation of legal guardianship under the adoption and safe families act of 1997, 2013 mich. st. l. rev. 1079 (2013); randi mandelbaum, re-examining and re-defining permanency from a youth’s perspective, 43 cap. u. l. rev. 259 (2015); eliza patten, the subordination of subsidized guardianship in child welfare proceedings, 29 n.y.u. rev. l. & soc. change 237 (2004); mark testa, new permanency strategies for children in foster care, in child welfare research: advances for practice and policy 108 (duncan lindsey & aron shlonsky eds., 2008); mark f. testa & jennifer miller, evolution of private guardianship as a child welfare resource, in child welfare for the 21st century: a handbook of practices, policies, and programs 405, 415–19 (gerald p. mallon & meg mccartt hess eds., 2005); mark f. testa, the quality of permanence lasting or binding? subsidized guardianship and kinship foster care as alternatives to adoption, 12 va. j. soc. pol’y & l. 499 (2005). yet, there has been only the most limited movement in this direction, perhaps because the mythology of adoption exerts such a strong pull. this essay is intended primarily as a case against adoption, rather than a case for alternate permanency arrangements, so it will not discuss those alternatives in detail. 10 see, e.g., donaldson adoption inst., let’s adopt reform report: adoption in america today (2016), https://go.usa.gov/xpjpb [https://perma.cc/547q-sr38]; michael fitzgerald, adoption secrecy has ended for thousands since new york unsealed birth records, imprint (feb. 17, 2021), https://imprint news.org/adoption/adoption-new-yorkunsealed-birth-certificates/51893 [https://perma.cc/kds7-zlec]; jordan gass-poore, most american adoptees can’t access their birth certificates. that could soon change, mother jones (mar. 13, 2019), https://web.archive.org/web/20191211162448/https://www.mother jones.com/politics/2019/03/most-american-adoptees-cant-access-their-birth-certificates-thatcould-be-about-to-change/. for accounts of historical activism to make adoption more open, see barbara melosh, strangers and kin: the american way of adoption 238–86 (2002) (describing reform efforts beginning in the 1970s) [hereinafter melosh, strangers and kin]; rickie solinger, beggars and choosers: how the politics of choice shapes adoption, abortion, and welfare in the united states 103–38 (2001) [hereinafter solinger, beggars and choosers] (describing the organizing efforts of concerned united birthparents beginning in the 1970s). on the harm and trauma experienced by children raised in transracial adoptions, see rebecca carroll, opinion, as a black woman raised by white parents, i have some advice for potential adopters, wash. post (apr. 5, 2021), https://www.washingtonpost.com/ opinions/2021/04/05/black-woman-raised-by-white-parents-advice-potential-adopters/ [https://perma.cc/8y89-74q4] (describing harmful nuances of even well-intentioned white adoptive parents’ treatment of black children because of failure to understand social realities of racism); sunah m. laybourn & carla goar, abby johnson’s comments about her adopted black son are problematic. here’s why., brookings (aug. 26, 2020), https://www. brookings.edu/blog/how-we-rise/2020/08/26/abby-johnsons-comments-about-her-adoptedblack-son-are-problematic-heres-why/ [https://perma.cc/m8zk-wrsn] (discussing the deeper implications of a white adoptive parent’s comment about law enforcement racial profiling of her “brown son”); j.s. lee, my experience with transracial adoption as an asian person in a white family, health (may 19, 2021), https://www.health. com/mind-body/myexperience-with-transracial-adoption-as-an-asian-person-in-a-white-family [https://perma. cc/gv8j-gx2t]; nikita stewart, 2 officials who were both adopted clash over an adoption law, n.y. times (aug. 7, 2019), https://www.nytimes.com/2019/08/07/nyregion/adoptionlaws-new-york.html [https://perma.cc/g92r-rsg6]. 562 colum. j. race & l. [vol. 12:557 from and advocate for adoption have begun to actively call for changes in adoption and in approaches to parenting adopted children.11 yet there has been little to no call for the abolition of adoption.12 as a matter of constitutional doctrine, it can be argued that the practice of termination of parental rights and adoption cannot withstand a strict scrutiny analysis, because there are alternatives that are just as effective for protecting children.13 but constitutional doctrine is not enough; so long as the harms caused by termination and adoption are not fully understood, 11 even bethany children’s services, which has long been seen as one of the most conservative—and coercive—private adoption agencies, recently came out with a report that acknowledged racial disproportionality in the family regulation system, emphasized the importance of placing children with families who are able to affirm their racial and cultural heritage, and recommended the overhaul of the multiethnic placement act, which restricts agencies’ ability to take race into account when making foster and adoptive placements. see bethany christian servs., what the pandemic taught us: innovative practice report 5, 13–19 (2021). cf. olga khazan, the new question haunting adoption, atlantic (dec. 19, 2021), https://www.theatlantic.com/politics/archive/2021/10/adopt-baby-costprocess-hard/620258 [https://perma.cc/at36-b4rn] (detailing bethany christian services’ history and role as the “largest protestant adoption agency”); kathryn joyce, shotgun adoption, nation, (sept. 14, 2009), https://web.archive.org/web/20220128032335/ https://www.thenation.com/article/archive/shotgun-adoption/ (placing bethany in the context of the christian adoption industry’s “history of coercing women to relinquish their children”). see also cheri williams & nathan bult, opinion, we celebrate transracial adoption. but child welfare can’t ignore race, newsweek (may 6, 2021), https://www.newsweek.com/we-celebrate-transracial-adoption-child-welfare-cant-ignorerace-opinion-1589058 [https://perma.cc/s8ru-v4kj] (defending the report against critics). 12 for some exceptions, see, e.g., marsha garrison, why terminate parental rights?, 35 stan. l. rev. 423, 425 (1983); dru sefton, anti-adoption activists defy popular opinion, chi. tribune (aug. 11, 2004), https://www.chicagotribune.com/news/ct-xpm-2004-08-110408110320-story.html [https://perma.cc/f9rp-uuzs]. cf. emily matchar, meet the antiadoption movement, new republic (sept. 1, 2013), https://newrepublic.com/article/ 114505/anti-adoption-movement-next-reproductive-justice-frontier [https://perma.cc/h3bmhl9c; gretchen sisson & jessica m. harrison, what we get wrong about adoption, nation (dec. 7, 2021), https://web.archive.org/web/20220221232140/https://www.thenation.com/ article/society/adoption-politics/. 13 parents’ interest in the care, custody, and control of their children is “perhaps the oldest of the fundamental liberty interests recognized.” troxel v. granville, 530 u.s. 57, 65 (2000) (citing meyer v. nebraska, 262 u.s. 390, 399 (1923)). the supreme court has recognized that “[f]ew consequences of judicial action are so grave as the severance of natural family ties.” m.l.b. v. s.l.j., 519 u.s. 102, 119 (1996) (quoting the court’s “unanimous[]” view articulated in santosky v. kramer, 455 u.s. 745, 774 (rehnquist, j., dissenting)) (affirming the right in connection with appellate review of the termination of parental rights). if the state wishes to infringe upon the family’s fundamental interest in its integrity—indeed, to permanently destroy it—the state bears the burden of establishing that its actions stand up to strict scrutiny. the state must show not only that it has a compelling state interest, but also that the statute it relies upon is narrowly tailored to accomplish that interest. in order to be narrowly tailored, a statute that infringes upon a fundamental right must “eliminate[ ] no more than the exact source of the evil it seeks to remedy.” frisby v. schultz, 487 u.s. 474, 485 (1988). where a statute is underor over-inclusive, or where the state has other available means to achieve its goal, the statute is not narrowly tailored. zablocki v. redhail, 434 u.s. 374, 389–90 (1978). yet, neither termination of parental rights nor adoption are necessary to achieve any of the purported goals of the family regulation system. even assuming, solely for the purposes of the argument, that the point of termination and adoption is to protect children from harm and to provide them with stable, alternative family arrangements once their biological parents have been deemed unable to safely care for them, there are alternative permanency options available, such as permanent guardianship, that can achieve both of these goals without requiring the complete legal destruction of the original family unit. see supra note 9. 2022] adoption cannot be reformed 563 courts will continue to uphold the practice on the basis that it is somehow more “permanent” than guardianship or custody,14 and advocates for adoption reform will continue to expend extensive effort to achieve legislative and other changes that are insufficient to address the fundamental problems of adoption. to even begin the fight for abolition, we must reframe adoption in the public mind, connecting its modern form to its roots in orphan trains, native american boarding schools, and the like, and showing how adoption has not only failed to transcend those roots but in fact never could. this is an uphill battle, as adoption—unlike policing, unlike prisons, and unlike the family regulation system as a whole—holds an overwhelmingly positive perception in the public eye.15 the common view is that, even if the occasional adoption may be unjust or the occasional adoptive parent cruel or abusive—and even if the practice of adoption may require certain reforms, mainly around the opening of records and adoptions themselves— adoption is a positive, life-affirming act: the creation of a family and the salvation of a child. this essay is our contribution to the fight. we will begin in part ii by briefly situating modern adoption in the united states within the context of the country’s lengthy history of using the forced separation of families as a tool of oppression and assimilation against racial and ethnic “others” and against those whose behavior did not conform to the cultural norms for their racial and class status. in part iii, we will then address the specific harms caused by adoption today. adoption legally severs parents from their children and children from their parents, siblings, extended families, and communities. it reinforces racist, classist, ablest, and misogynistic ideas about which families matter and which do not. and, as noted above, the idea of adoption as the ideal form of “permanency” has a pervasive impact on case planning and judicial decision-making for families caught up in the family regulation system, resulting in a push to terminate parental rights based on timelines alone, without a real assessment of whether reunification is possible, and a preference for 14 see, e.g., cody b. v. dep’t of child safety, no. 2 ca-jv 2016-0105, 2016 wl 4987103 (ariz. ct. app. sept. 19, 2016) (“the evidence showed that c. would benefit from the permanency available from severance and adoption—permanency that cannot be accomplished via guardianship because it is subject to revocation.”); in re jose v., 58 cal. rptr. 2d 684, 688 (cal. ct. app. 1996) (applying a “well established” reasoning that because “there is a strong preference for adoption as the most permanent, and thus best, plan,” then “if the court finds the child is adoptable . . . it is presumed, even in the absence of a specific finding by the court, that adoption is the choice that is in the child’s best interests”); in re weidman, nos. 354550, 354551, 2021 wl 2026217, at *23 (mich. ct. app. may 20, 2021) (upholding trial court’s termination of mother’s parental rights because “guardianship is not a permanent option, and, therefore, it would not provide the stability that the trial court found the child needed” whereas “adoption would provide the child with the stability and permanence that he needed”). 15 as adult adoptees critical of adoption sarcastically describe it on social media, adoption is “all unicorns and rainbows” in the public mind. see, e.g., rohan simmons-barr (@rohansmcbarr), twitter (sept. 12, 2018, 4:47 am), https://twitter.com/rohansmcbarr/ status/1039797560880189445 (last visited nov. 26, 2021); rachel marie (@highschoolfor2), twitter (mar. 5, 2021, 1:20 pm), https://twitter.com/highschoolfor2/status/13679028985 00239362 (last visited nov. 26, 2021); vik (@stoweyvik), twitter (july 17, 2020, 6:04 am), https://twitter.com/stoweyvik/status/1284066315528 032256 (last visited nov. 26, 2021). 564 colum. j. race & l. [vol. 12:557 termination and adoption over other options, such as guardianship and third-party custody. finally, in part iv, we will discuss growing efforts to reform adoption. with a focus on the seemingly most radical change to the practice of adoption in this country over the past few decades—namely, the shift from closed to open adoptions and the creation of enforceable post-adoption contact agreements—we will explain why reform is not only insufficient to address the harms caused by adoption, but also likely to increase such harms in the long run, by staving off more direct criticism of adoption and reaffirming its legitimacy. rather than working to “fix” a practice that is doing exactly what it was designed to do, we need to broaden our vision to truly embrace alternate forms of caretaking for children that do not treat them as objects whose “ownership” can be transferred or whose identities can be erased. ii. adoption as family regulation with very limited exceptions,16 adoption in the united states is framed as a “fictive birth” at the center of a regime requiring the complete severance of the adoptee’s legal ties to their parents and the substitution of the adoptive parents as their sole legal parents.17 upon adoption, the 16 california, minnesota, and washington have laws recognizing tribal customary adoptions for native youth; in a customary adoption, the child is adopted by new parents without having all of their biological parents’ rights severed. paula polasky, customary adoptions for non-indian children: borrowing from tribal traditions to encourage permanency for legal orphans through bypassing termination of parental rights, 30 law & ineq. 401, 403 (2012) (citing cal. welf. & inst. code § 366.24 (2012); minn. stat. § 259.67, subd. 4(a)(3)(iii) (2010); and wash. rev. code ann. § 13.38.010 et seq. (2012)). tribal customary adoption is similar to the concept of “simple adoption,” discussed infra note 22. oregon recently passed a bill to recognize tribal customary adoption. s.b. 562, 2021 , leg. assemb., 81st reg. sess. (or. 2021); see also unanimous oregon house backs tribal customary adoption, imprint (may 4, 2021), https://imprintnews.org/child-welfare2/unanimous-oregon-house-backs-customary-tribal-adoption/54113 [https://perma.cc/c5xsar62]. as of 2014, california allows any birth and adoptive parents to agree that the decree of adoption will not fully terminate all of the parental duties and responsibilities of the child’s birth parents. cal. fam. code § 8617(b); see also adoption of e.b., 291 cal. rptr. 3d 409 (cal. ct. app. 2022) (applying the statutory provision to uphold a petition to adopt a child as a third parent, and stating that the provision authorizes an independent adoption involving multiple parents). 17 see, e.g., n.y. dom. rel. law § 117(1)(a)–(c). see also annette ruth appell, the myth of separation, 6 nw. j. l. & soc. pol’y 291, 294 (2011) (referring to the dominant midtwentieth century construction of adoption as the “creation of a new life . . . by operation of the adoption decree,” under which “adoptive parents have full, legal autonomy regarding their new child” as if they are biological offspring, while the “former birth parents cease to exist as parents or kin under the law and, theoretically, as a matter of fact”); mary lyndon shanley, toward new understandings of adoption: individuals and relationships in transracial open adoption, in child, family, and state 15, 20–21 (stephen macedo & iris marion young eds., 2003) (“the dissolution of the child’s legal ties to [their] original parents made possible the construction of the adoptive family as an ‘as-if’ biological family.”); judith s. modell, a sealed and secret kinship: the culture of policies and practices in american adoption 5–8 (2002) [hereinafter modell, sealed and secret kinship] (discussing the “as-if begotten” structure of adoption); judith s. modell, kinship with strangers: adoption and interpretations of kinship in american culture 2–6 (1994) [hereinafter modell, kinship with strangers] (explaining that adoption in this country rests on the principle of “substitutability”). notably, as revolutionary as it is in some ways, second-parent or stepparent adoption is not really a deviation from this model, since it requires the complete severance 2022] adoption cannot be reformed 565 adoptee is issued a new birth certificate that lists their true time and place of birth, but substitutes the adoptive parents’ names for their birth parents’ and, in many cases, replaces the adoptee’s birth name with a new one chosen by their adoptive parents.18 even today, all but nine states deny or restrict adoptees’ access to their original birth certificates; before some of these states will release an adult adoptee’s own birth certificate to them, both their birth and adoptive parents must consent.19 thus, the process of adoption entails not only the full severance of the adoptee’s legal connections to their family of origin and the substitution of the adoptive family in its place, “as if” the adoptee had been “born to” their adoptive parents, but also the complete erasure of that occurrence from the public record. the legal treatment of adoption as a “fictive birth” corresponds with a cultural conception of adoption as a “rebirth” for the adoptee—a new and “better” beginning that is somehow existentially different than other forms of substitute caretaking for children, even legally binding forms such as permanent guardianship.20 because the adoptive family is legally constructed “as if” it were a biological family, adoption is also viewed as inherently more stable and permanent than other substitute caretaking arrangements21—an irony, given that adoption itself could be considered evidence of the impermanence of the biological parent-child relationship. of the adoptee’s relationship to one parent, where the adoptee has two legal parents prior to adoption; it remains a process of substitution rather than addition. see katharine t. bartlett, rethinking parenthood as an exclusive status: the need for legal alternatives when the premise of the nuclear family has failed, 70 va. l. rev. 879, 917–18 (1984). 18 see, e.g., n.y. pub. health law § 4138(1)(c). see also annette ruth appell, blending families through adoption: implications for collaborative adoption law and practice, 75 b.u. l. rev. 997, 1007 (1995) (“from this severance springs a series of secrets designed to support this fictional rebirth. the original birth certificate is sealed and the child is given a new name and birth certificate, stating that he or she was born to the adoptive parents. all records of the adoption proceedings are also sealed.”). 19 for a survey of state laws governing adoptees’ access to their own records, see generally child. bureau, u.s. dep’t of health & hum. servs., access to adoption records (2019), https://www.childwelfare.gov/pubpdfs/infoaccessap.pdf [https://perma.cc/ v6w4-x396]. minnesota attorney, advocate, and adoptee gregory luce provides detailed information regarding state laws governing the release of original birth certificates (along with helpful infographics) on his website. the united states of obc, adoptee rts. law ctr., https://adopteerightslaw.com/united-states-obc/ [https://perma.cc/dn5f-6b8l]. for a comprehensive history of the development of sealing statutes in the united states, see elizabeth j. samuels, the idea of adoption: an inquiry into the history of adult adoptee access to birth records, 53 rutgers l. rev. 367 (2001) [hereinafter samuels, the idea of adoption]; for a different take on the same topic, see e. wayne carp, family matters: secrecy and disclosure in the history of adoption (1998). see also infra note 46. 20 see, e.g., marsha garrison, parents’ rights vs. children’s interests: the case of the foster child, 22 n.y.u. rev. l. & soc. change 371, 387–88 (1996) (describing the “adoption order” as a “legal rebirth” or “legal[] reincarnat[ion]” not only defined by a new name, identity, and family, but symbolically characterized by “good parents and good life” with a “redemptive quality not unlike a baptismal or conversion experience” and an “offer[] [of] a permanent improvement in socioeconomic status in a socially preferred family structure”). of course, this “redemption that adoption confers upon the child is also dependent upon the severance of ties with her biological parents; rebirth necessitates the death of past identity and familial bonds.” id. 21 in the united states, it is a cultural conviction that “where the proverb ‘blood is thicker than water’ measures kinship, it is not surprising that ‘blood’ symbolizes strong and true ties,” which underlies the sense that “the more evidently an adoptive family replicates 566 colum. j. race & l. [vol. 12:557 this approach to legal adoption—involving the full “substitution” of the adoptive parents for the adoptee’s birth parents—is not inherently necessary. other societies have different approaches.22 nor is it particularly longstanding. the formal, legal adoption of children did not exist at the founding of the united states.23 each fundamental element of the practice of adoption in this country was developed over the course of a roughly hundred-year period of this country’s history and each developed to serve interests other than those of adoptees themselves. whether public or private—and even before the development of the family regulation system as we now know it—adoption has consistently served as a means of family regulation, defining and reinforcing the boundaries between ostensibly “good” and “bad” families and communities. adoption has also generated both income and authority for the institutions and individuals carrying it out—along with societal and personal affirmation from ostensibly doing good work and helping children in need. what follows is not intended to be a comprehensive history of adoption in the united states. the ensuing sections will briefly review key periods in that history in order to highlight the way in which each of the central elements of the practice of adoption in this country—including the legal process of full severance and substitution; an emphasis on secrecy and the sealing of adoptees’ birth records; and the conception of adoption as the ideal form of “permanency” and stability for children not in their parents’ care—developed not to serve the best interests of children or their biological families, but rather to serve the interests of those already in power and to reinforce existing race, gender, and class hierarchies. a. child-saving and the creating of legal adoption while legal adoption was unknown at common law, substitute care for children was common from the early days of the united states. from the colonial period onward, children lived apart from their parents for a variety of reasons. temporary indenture or apprenticeship arrangements were common for free children of many classes,24 and both free and a blood family, the more enduring it is likely to be.” modell, sealed and secret kinship, supra note 17, at 6–7. 22 to give just one example, in france, there are two forms of legal adoption: adoption simple, or ordinary adoption, and adoption pleniere, or plenary adoption. while plenary adoption is similar to adoption in the united states, with the adoptee taking the same legal relationship to the adoptive parents as they would have had if they had been born to those parents, ordinary adoption in france gives the adoptee a legal relationship to their adoptive parents without fully severing their legal ties to their birth parents. kerry o’halloran, france, in the politics of adoption: international perspectives on law, policy and practice 575, 576 (ius gentium book ser. 4th ed. 2021). 23 annette r. appell, controlling for kin: ghosts in the postmodern family, 25 wis. j.l. gender, & soc’y 73, 87–88 (2010) [hereinafter appell, controlling for kin]; julie berebitsky, like our very own: adoption and the changing culture of motherhood, 1851–1950, at 20 (2000) [hereinafter berebitsky, like our very own]; samuels, the idea of adoption, supra note 19, at 368. in fact, england did not enact its first adoption statute until 1926, well after the united states. see e. wayne carp, adoption in america: historical perspectives 3 (2002). 24 see susan l. porter, a good home: indenture and adoption in nineteenthcentury orphanages, in adoption in america: historical perspectives 27, 27–28 (e. wayne carp ed., 2002) (discussing historical practice suggesting that adoption “may have been understood more as an offshoot of indenture”); see also janet l. dolgin, transforming childhood: apprenticeship in american law, 31 new eng. l. rev. 1113, 1124 (1997) 2022] adoption cannot be reformed 567 enslaved families regularly took in related children or the children of community members who died or could not otherwise care for them.25 these arrangements were sometimes formalized on an ad hoc basis by means of indenture contracts;26 by the “adoptive” parents simply naming the child as an heir;27 or by individualized legislative enactments permitting individuals who had taken in an unrelated child to change the child’s surname or take other legal steps to guarantee the child would be able to inherit from their caretakers.28 yet, there is no indication that these legal formalities were viewed as somehow creating a new relationship between the adult and child.29 rather, they functioned primarily as makeshift solutions to pressing practical concerns—a landowning family’s attempt to protect the inheritance rights of an unrelated child who had become part of the household,30 or a formerly enslaved person’s request to have his cousin bound to him in indenture so as to prevent the child from being indentured to a former enslaver.31 the first general adoption statutes in the united states were not enacted until the mid-to-late nineteenth century, against the background of a prominent “child-saving” movement aimed at removing poor and working-class immigrant children from their families and placing them with more “suitable” caretakers.32 while using the rhetoric of preventing cruelty to children, the work of the child-savers primarily focused not on (detailing colonial apprenticeship arrangements, under which “most children received basic parts of their moral and practical education away from ‘home’” as apprentices who “lived with the families of their masters, [and] owed those masters reverence and obedience”); stephen b. presser, the historical background of the american law of adoption, 11 j. fam. l. 443, 453–56 (1972) (describing the new england puritans’ custom of “putting out” their children from one wealthy household to another); viviana a. zelizer, pricing the priceless child: the changing social value of children 171–72 (1985) [hereinafter zelizer, priceless child] (examining the “widespread system” of apprenticeship and indenture, both as a private choice and as a public method of dealing with orphaned or indigent children). 25 berebitsky, like our very own, supra note 23, at 20; melosh, strangers and kin, supra note 10, at 15. 26 naomi cahn, perfect substitutes or the real thing?, 52 duke l.j. 1077, 1110–12 (2003) [hereinafter cahn, perfect substitutes]. 27 id. at 1107–08 (referring to making a child an heir as a “general practice of informal adoption”). 28 id. at 1108–09. see also modell, kinship with strangers, supra note 17, at 22 (explaining how “[t]hrough a private legislative act, a child could become a full member of a family”). 29 see, e.g., appell, controlling for kin, supra note 23, at 87 (“adoption law, itself a modern creation, has evolved over its relatively short life from a simple way to legally recognize de facto parent-child relationships to a rigid, almost mythic, imitation of the birth family.”). 30 berebitsky, like our very own, supra note 23, at 40–43. 31 see ira berlin, steven f. miller, & leslie s. rowland, afro-american families in the transition from slavery to freedom, 42 radical hist. rev. 89, 116–18 (1988) (presenting primary historical evidence of the practice). 32 see cahn, perfect substitutes, supra note 26, at 1091–92; presser, historical background, supra note 24, at 465, 474–87. for a general history of the child-savers and the families of the children they sought to “save,” see linda gordon, heroes of their own lives: the politics and history of family violence (1988) [hereinafter gordon, heroes of their own lives]; linda gordon, the great arizona orphan abduction (1999) [hereinafter gordon, orphan abduction]. for stories of the child-savers told by the children themselves, see michael patrick et al., we are a part of history: the story of the orphan trains (1990). 568 colum. j. race & l. [vol. 12:557 physical abuse or other deliberate harms, but rather on the living conditions and parenting choices of the families they “helped.” for childsavers like charles loring brace, the founder of new york city’s children’s aid society,33 the explicit goal of this work was to save children from growing up in homes where they would not be raised according to middle and upper class, white, protestant parenting norms.34 brace was the originator of the orphan trains that transported poor children from urban communities in the eastern united states to farms in the rural midwest and west, where they could be raised in what brace and his colleagues thought were more wholesome environments, by better and more “american” parents.35 as the description above indicates, there was an explicitly racialized nature to this child-saving work. while black children were generally excluded from the child-savers’ services,36 the children of italian, irish, and other european immigrants—who had not yet been deemed fully “white” and who were largely catholic rather than protestant—bore the brunt of the movement’s efforts.37 by taking these children away from the 33 the children’s aid society is still in operation as one of a number of non-profit agencies to which new york city’s administration for children’s services (acs) contracts out responsibility for providing foster care and adoption services for children who have been removed from their parents. notably, the agency’s website has a discussion of its history that describes brace and his work in an entirely positive light, see a history of innovation, children’s aid, https://www.childrensaidnyc.org/about/history-innovation [https://perma. cc/y58n-8fxy], even though brace’s xenophobia, racism, and willingness to outright kidnap children from the streets of new york city are well-known, see gordon, orphan abduction, supra note 32, at 8–12. 34 see gordon, heroes of their own lives, supra note 32, at 27–58; gordon, orphan abduction, supra note 32, at 10–12; michael b. katz, in the shadow of the poorhouse: a social history of welfare in america 110–11 (1996); brenda g. mcgowan, historical evolution of child welfare services, in child welfare for the twenty-first century: a handbook of practices, policies, and programs 14, 16–17 (gerald p. mallon & peg mccartt hess eds., 2d ed. 2014). 35 gordon, orphan abduction, supra note 32, at 8–12. 36 dorothy roberts, killing the black body: race, reproduction, and the meaning of liberty 204–05 (1997); amy mulzer & tara urs, however kindly intentioned: structural racism and volunteer casa programs, 20 cuny l. rev. 23, 54–57 (2017). for discussions of the treatment of black children by public agencies and private charitable organizations through the mid-twentieth century, and the black community’s efforts to care for its own children in the face of white disregard, discrimination, and subjugation, see andrew billingsley & jeanne m. giovannoni, children of the storm: black children and american child welfare (1972) [hereinafter billingsley & giovannoni. children of the storm]; herbert g. gutman, the black family in slavery & freedom: 1750-1925 (1976); crystal lynn webster, beyond the boundaries of childhood: african american children in the antebellum north (2021). the few child-saving institutions that were established for black children in the nineteenth century were targets for racial violence by white mobs. id. at 58–63. 37 gordon, orphan abduction, supra note 32, at 11–13; gordon, heroes of their own lives, supra note 32, at 14–16; mulzer & urs, supra note 36, at 56. for a discussion of racialized ideas about irish catholic and other immigrants in nineteenth century america, and their eventual admittance into “whiteness,” see nell irvin painter, a history of white people 132–211 (2010). family violence historian linda gordon’s history of the “orphan abduction” tells of a group of irish catholic children who were sent to arizona by a catholic child-saving organization—new york foundling, also still in operation as a contracted foster care agency in new york city. new york foundling’s goal was to keep catholic children with catholic families, in opposition to protestant child-savers’ intent to convert and assimilate them, and the organization had arranged for the children to be taken in by a group of mexican-american catholic families who worked at a local mine. gordon, 2022] adoption cannot be reformed 569 “corrupting“ influence of their families—many of whom never intended to give them up—and placing them in more “suitable” homes outside of urban centers, the child-savers sought to assimilate the children into the cultural and racial majority. they also sought status and authority for themselves. while the organizations’ leaders were men, much if not most of the day-today work was done by middle-and-upper-class white women, who relied on their presumed moral authority over matters of the home to find a role for themselves in the world outside of their own homes—to the detriment of the families they found there.38 the adoption statutes that were enacted during this time reflected the language and ideals of the child-saving movement, emphasizing the need for courts to ensure that prospective adoptive parents were “of sufficient ability to bring up the child, and furnish suitable nurture and education.”39 these statutes also reflected the ultimate goal of the childsavers’ most ambitious plans, such as the orphan trains: to completely sever children from their families and communities and place them in homes where they could be fully assimilated into the american cultural majority. according to these statutes, upon adoption, the child was to become the legal child of the adoptive parents, as if he had been born to them, and the child’s birth parents were to be deprived of all legal rights and obligations.40 ironically, although states passed these statutes as a result of the influence of the child-saving movement, the child-savers themselves rarely relied on the adoption statutes during that time, using older, more ad hoc means of formalization instead. moreover, many of the children placed by child-saving organizations were not, in fact, treated “as if” they had been born to their new midwestern and western parents, many orphan abduction, supra note 32, at 12–19. however, when the children arrived, white residents were outraged to see these children—whom they, unlike the new york city childsavers, considered “white”—being placed with mexican families, and forcibly abducted them. 38 see mulzer & urs, supra note 37, at 45–58. 39 an act to provide for the adoption of children. ch. 324, 1851 mass. gen. court 816, reprinted in families by law: an adoption reader 9–10 (naomi r. cahn & joan heifetz hollinger eds., 2004). see also, e.g., lucy s. mcgough & annette peltierfalahahwazi, secrets and lies: a model statute for cooperative adoption, 60 la. l. rev. 13, 25 (1999) (quoting an early-twentieth-century wisconsin statute, 1929 wis. sess. laws ch. 439, § 322.07, which provided that the adopted child would be deemed “same to all intents and purposes as if the child had been born in lawful wedlock of such parents by adoption” and that “[t]he natural parents of such child shall be deprived, by such order of adoption, of such legal rights, if any, of whatsoever nature which they may have respecting such child and its property”); wright s. walling, adoption law in minnesota: a historical perspective, 33 wm. mitchell l. rev. 871, 883–84 (2007) (describing the 1878 minnesota statute, minn. stat. ch. 124, §§ 26–32, which provided that where the court found that the petitioners were of “suitable nature and ability to provide for, nurture, and educate the child,” then a decree of adoption would be issued, and the adopted child was to be deemed, as to “all legal consequences and incidents,” the natural relation of the adoptive parents, as if he had “been born to them in lawful wedlock” and the child’s birth parents deprived “of all legal rights respecting the child”); see also appeal of wolf, 13 a. 760 (pa. 1888) (issuing order of adoption pursuant to pennsylvania statute, where “it appear[ed] to the court that the interests and welfare of the said minor child will be promoted by being adopted as the child and heir of the said petitioner,” and declaring that the child was now to have “all the rights of a child and heir” of the adopting parent, to be “subject to all the duties of such child,” and to take the name of the adopting parent”). by 1929, all states had adopted general adoption laws. modell, kinship with strangers, supra note 17, at 19–20. 40 see supra note 39 and sources cited therein. 570 colum. j. race & l. [vol. 12:557 of whom took in children primarily as a means of generating an additional source of labor for their farms.41 b. georgia tann and the development of sealed records reliance on the general adoption statutes grew over time, alongside the increasing sentimentalization of the concept of childhood and efforts to place children in families—rather than in orphanages—at younger and younger ages.42 adoption records, however, remained open for decades, if not to the public then at least to those involved in the adoption,43 and adoptees retained their original birth certificates.44 the practice of sealing adoptees’ records even from the parties themselves is still regularly depicted as a benevolent—if misguided—attempt to protect the privacy of mothers who chose to place their children for adoption, ensuring that even their own children would not be able to track them down and reveal their secrets.45 in fact, the practice originated around 1930 as the result of an agreement between the tennessee department of vital statistics and a social worker named georgia tann, who used it as a method to conceal her own criminal behavior46—although tann herself did present the practice 41 “the demand for children’s labor that made these placements so popular simultaneously yielded abuse and violated even nineteenth-century standards, judging from the mounting complaints: children were beaten and overworked and sexually assaulted.” gordon, orphan abduction, supra note 32, at 10. see also patrick et al., part of history, supra note 32, at 53–54 (stories of mistreated children). 42 see zelizer, priceless child, supra note 24, at 169–70, 175–207. 43 see samuels, the idea of adoption, supra note 19, at 374–75. 44 id. at 376. 45 opponents of open records legislation, including various anti-abortion groups and the national council for adoption, regularly base their opposition on an insistence that such legislation would violate the privacy rights of birth parents who were “promised confidentiality” under the existing sealed-record regime and would “undermine the strength of the adoptive family.” thomas c. atwood, consent or coercion? how mandatory open records harm adoption, in nat’l council for adoption, adoption factbook iv 463–64 (lee a. allen & virginia c. ravenel eds., 2007). in texas in 2015, open records legislation was killed by a state senator who was also the adoptive parent of a daughter via a closed adoption, on the ground that “a decision that was made at the time [of adoption] needs to be respected.” see erin cargile, adoption group supports bill to access original birth certificates, kxan austin (jan. 19, 2015), https://web.archive.org/web/20150124233913/http://kxan.com/2015/01/19/adoption-grouppushing-for-access-to-original-birth-certificates/. yet as elizabeth samuels shows in her thorough exploration of the history of sealed birth records, opponents’ concern about birth parent privacy is not supported by the historical record; the sealing of original birth certificates had little to do with birth parents’ desire that their identities be kept secret from their children, and few birth parents were ever promised such anonymity. see samuels, the idea of adoption, supra note 19, at 369–71, 387. 46 see barbara bisantz raymond, the baby thief: the true story of the woman who sold over five thousand neglected, abused, and stolen babies in the 1950s 204–207 (2013) [hereinafter bisantz raymond, baby thief]; gabrielle glasser, american baby: a mother, a child, and the shadow history of adoption 127–32 (2021) [hereinafter glasser, american baby]. for a comprehensive history of the shift from open records to closed records in adoption, see samuels, the idea of adoption, supra note 19, at 370–72, which calls attention to the fact that while adoption records began to be sealed from all parties in the mid-twentieth century and amended birth certificates began to be issued around the same time, as discussed above, adult adoptees were permitted access to their original birth certificates in many states until the later decades of the twentieth century, when all but a few states passed laws restricting their access in reaction to the growing adoptee rights movement. 2022] adoption cannot be reformed 571 to government employees and legislators as a way to protect mothers and children against the taint of illegitimacy. 47 tann’s story is instructive, both because of the extent of her influence on the development of modern adoption and because many of her motives and methods, while extreme, are not categorically different from those of other, less overtly criminal, proponents of adoption throughout u.s. history. much like the middleand upper-class women who served as the backbone of the child-saving organizations, tann went into social work to fulfil her desire for respect and influence in the world outside her home.48 and tann was wildly successful at this goal. between 1930 and 1950, tann’s tennessee children’s home society, which placed the infants and children of low-income, rural women for adoption by wealthy couples around the country, delivered over 1,000 children to new homes in at least fifteen states, earning more than a million dollars profit,49 and making tann an influential figure both in tennessee and beyond.50 tann’s clients included hollywood stars of the time, high-ranking businessmen, and a number of government officials.51 yet, while tann claimed to be finding homes for abandoned, orphaned, or neglected children, her methods of obtaining these children actually ranged from coercion to outright kidnapping, paying nurses to tell new mothers that their babies had died in childbirth or even snatching children from front lawns when their parents weren’t looking.52 the sealing of the children’s records—and the issuance of new birth certificates listing their adoptive parents—served as a means of protecting tann from discovery both by the children’s birth parents and by their adoptive parents, to whom she often lied about the “pedigrees” of the children she placed with them, sending “sixand seven-year-olds with no musical ability to couples who, because of her falsification of their records, expected them to become concert pianists.”53 tann found customers for her baby-selling business by placing advertisements in newspapers with photographs of children and headlines like “are you in the market for a 14-month-old boy?” and “dan, jimmy, 47 see glasser, american baby, supra note 46, at 130; bisantz raymond, baby thief, supra note 46, at 206. 48 see bisantz raymond, baby thief, supra note 46, at 50, 52, 57–58. 49 zelizer, priceless child, supra note 24, at 199. bisantz raymond estimates that tann facilitated the placement of roughly 5,000 children, rather than zelizer’s more conservative 1,000. bisantz raymond, baby thief, supra note 46, at 11; see also glasser, american baby, supra note 46, at 128–30. 50 see bisantz raymond, baby thief, supra note 46, at 57, 92–93. 51 see id. at 57, 95–96, 109; glasser, american baby, supra note 46, at 127, 129, 130. 52 see glasser, american baby, supra note 46, at 128–31; bisantz raymond, baby thief, supra note 46, at 54, 56, 59, 94–95, 110–11, 123–29, 132, 138–39, 178–79. 53 bisantz raymond, baby thief, supra note 46, at 84; see also id. at 105, 158–60 (further discussing tann’s deceptions). notably, tann was “consistently unreliable in her representation of her babies’ religions.” although “[m]ost of her children were born to protestant young women,” her attorney had connections that led her to have a clientele that was mostly jewish and “wanted to adopt jewish babies”, so tann “falsely represented many of her children as jewish.” id. at 160. see also glasser, american baby, supra note 46, at 130. 572 colum. j. race & l. [vol. 12:557 ray . . . want one of them?”54 notably, the organizers of the orphan trains used a similar technique, placing advertisements in local papers, describing available children that could be picked up from the train station and sometimes offering them on a “ninety-day trial basis.”55 the children placed by georgia tann were just as much of a commodity as the children plucked from the orphan train by farmers in need of additional sources of labor; they just served a different purpose: “[w]hile in the nineteenth century a child’s capacity for labor had determined its exchange value, the market price of a twentieth-century baby was set by smiles, dimples, and curls.”56 tann’s scheme was eventually uncovered, although she died of cancer days before the results of the investigation into her actions were made public in 1950.57 by that time, however, tann had already made her mark, not only significantly contributing to the popularization of adoption in the united states,58 but also fundamentally impacting the process by which they are finalized. following the example set by tann in tennessee, state after state passed laws requiring the sealing of adoptees’ birth records and the issuance of falsified birth certificates listing their adoptive parents.59 notably, one of the first states to do so was new york—and the governor who signed the bill into law, herbert lehman, received at least one of his three adopted children from tann herself.60 c. the “baby scoop” era georgia tann’s “innovation” of sealing birth records helped to pave the way for the post-war “baby scoop” era of adoption, the era when the concept of adoption reflected in the mid-nineteenth century adoption statutes and those that followed—that is, the concept of adoption as a deliberate means of family formation, in which a child’s previous connections were deliberately erased to make room for their “rebirth” to new (and improved) parents—fully took root. much like the efforts of the child-savers themselves, the baby scoop occurred in the context of societal efforts to define and regulate the bounds of proper childbearing and rearing. much like tann’s work, it also served as big business for the institutions undertaking to arrange adoptions—descendants of the childsaving organizations established to rescue the immigrant children of new york and other urban centers a hundred years earlier. now, however, the reproductive choices under scrutiny were not those of the immigrant urban poor—or the rural white poor, as in georgia tann’s money-making scheme—but rather white, middle-class women themselves. during the post-world war ii “baby scoop” era—lasting from 54 bisantz raymond, baby thief, supra note 46, at 113–16; see also glasser, american baby, supra note 46, at 129. 55 gordon, orphan abduction, supra note 32, at 10. 56 zelizer, priceless child, supra note 24, at 171. 57 see bisantz raymond, baby thief, supra note 46, at 7–11. although tann’s children’s home was closed down following the investigation, only two of the children she had stolen were reunited with their parents, and the state of tennessee passed a law retroactively legalizing all of the adoptions she had illegally carried out. id. 58 see id. at xiii, 67. 59 see glasser, american baby, supra note 46, at 130. 60 see id. at 130–31. 2022] adoption cannot be reformed 573 roughly 1945 until roe v. wade in 197361—more than three million young, mostly unmarried middle-class white women were coerced by adoption agencies, religious leaders, and even their own parents into “voluntarily” surrendering their babies for adoption by infertile married couples deemed to be more appropriate parents for their children.62 these women were forced to “endure[] their pregnancies in secret, sometimes with distant relatives . . . as servants to strangers” or in maternity homes run by the adoption agencies themselves.63 they were then made to surrender their newborn children to employees at private, non-profit adoption agencies, who undertook a complex project of purportedly assessing the infants’ iqs and personalities, then “matching” them to their best possible parents—all in the service of defining and reinforcing the postwar ideal of the middleclass, white, suburban nuclear family.64 records of the adoption were sealed, amended birth certificates were issued for the adopted children, and all parties were expected to move on completely,65 with the child’s birth mother protected against the revelation that she had failed to maintain her sexual purity and the adoptive parents protected against the revelation of their infertility. while scholars have long, and correctly, recognized the control exercised over these women and their children as a means of protecting the patriarchal conception of the ideal heterosexual, married nuclear family, they have less often identified it as also a form of racial regulation, controlling and defining the boundaries of proper white womanhood in order to reinforce the superiority of those deemed “white” over those deemed “not-white.”66 by the 1950s, single motherhood had begun to be defined as a problem of the black community, making young, single, pregnant white women a threat not just to the post-war family ideal but to white supremacy itself. as historian rickie solinger explains, “black women, illegitimately pregnant, were not shamed but simply blamed, blamed for the population explosion, for escalating welfare costs, for the existence of unwanted babies, and blamed for the tenacious grip of poverty on [b]lacks in america. there was no redemption possible for these women.”67 white women, by contrast, were shamed—and coerced into giving up their children. but in exchange for their (unwilling) sacrifice, 61 410 u.s. 113 (1973). 62 for comprehensive histories of the baby scoop era, see ann fessler, the girls who went away: the hidden history of women who surrendered children for adoptions in the decades before roe v. wade (2006) [hereinafter fessler, girls who went away]; rickie solinger, wake up little susie: single pregnancy and race before roe v. wade (2000) [hereinafter solinger, wake up]; glasser, american baby, supra note 46. 63 glasser, american baby, supra note 46, at 6. 64 see id. at 95–113; melosh, strangers and kin, supra note 10, at 51–104. 65 see glasser, american baby, supra note 46, at 50–93, 117–18; fessler, girls who went away, supra note 62, at 147–54. 66 one notable exception is historian rickie solinger. see generally solinger, wake up, supra note 62 (examining history of racialized differences in the oppressive reproductive and welfare policies surrounding black and white women’s single pregnancy). 67 id. at 25. 574 colum. j. race & l. [vol. 12:557 they were given a second chance to do things the “right” way and maintain their place in the racial order.68 d. the rise of transracial adoption, the modern family regulation system, and the “permanency” ideal if white women’s reward for relinquishing their babies at birth was the ability to maintain their status as productive members of the white social order, that did not mean that black mothers, blamed for a wide variety of social ills, would in fact be permitted to keep their children. the late 1950s and 1960s marked the beginning of a period of significant growth in the transracial adoption of both black and native children by white parents, as well as the rise of the contemporary family regulation system. both of these developments began as explicit means of racial control—and both allowed white adoptive parents to affirm and display their commitment to equality and integration through their willingness to adopt a non-white child. ultimately, by the 1990s, they also led to the establishment of the idea of adoption as the ultimate form of “permanency” and the ideal solution for children in foster care. 1. the indian adoption project in 1958, the federal bureau of indian affairs (“bia”) worked with the child welfare league of america—a national organization of child welfare and adoption agencies—to create the indian adoption project (“iap”), designed to place native children from sixteen western states into homes with white families in the east.69 as with the federal government’s earlier efforts to remove native children from their communities and place them into boarding schools that stripped them of their tribal languages and cultures and raised them to assimilate into the dominant white culture,70 the iap was founded on the principle that native children were inherently better-off with white people than with their own families.71 it also served the larger policy aims of the u.s. government during the period, “which sought to terminate the unique tribal status of many indian communities, to undermine indian claims to communal land and sovereignty, and to detribalize thousands of indian people.”72 68 see id. at 20–40 (explaining white women’s place in the “family imperative” through “socially productive” childbirth). 69 for a comprehensive history of the indian adoption project and the women-led native activist movement that led to the passage of the indian child welfare act, see generally margaret d. jacobs, a generation removed: the fostering & adoption of indigenous children in the postwar world (2014) [hereinafter jacobs, generation removed]. 70 for a history of indian boarding schools in the united states, see laura briggs, taking children 45–75 (2020) [hereinafter briggs, taking children]; brenda j. childs, boarding school seasons: american indian families, 1900–1940 (2000); margaret d. jacobs, white mother to a dark race: settler colonialism, maternalism, and the removal of indigenous children in the american west and australia, 1880–1940 (2009); clifford e. trafzer et al., boarding school blues: revisiting american indian educational experiences (2000). 71 see margaret d. jacobs, remembering the “forgotten child”: the american indian child welfare crisis of the 1960s and 1970s, 37 am. indian q. 136, 137, 139, 142, 144 (2013) [hereinafter jacobs, remembering the “forgotten child”]; see also jacobs, generation removed, supra note 69, at 19, 26, 85–86. 72 jacobs, remembering the “forgotten child”, supra note 71, at 139. 2022] adoption cannot be reformed 575 administrators of the iap facilitated the program by working to increase interest in the adoption of native children among middle-class, white families and to increase the number of native children placed for adoption by state agencies.73 the administrators accomplished the former by framing the adoption of native children by white families as a way of promoting equality and integration.74 the iap placed articles in both professional social work journals and popular magazines that “invoked longstanding images of the unfit indian family as the basis of indian poverty,” and published a newsletter with photographs of native children “available” to be adopted.75 according to the iap’s depiction, “indian children were denied equality not because their communities . . . still suffered from colonial policies on the part of the us government but because they lacked the opportunity to be adopted.”76 the iap provided that “opportunity” by “enlisting bia and state social workers to convince or coerce indian mothers to relinquish their infants at birth as well as to intervene in indian families to remove older children who they deemed to be neglected.”77 it also “relied on the courts to place removed indian children with non-indian families and to terminate parental rights.”78 social workers and judges refused to place removed children with their extended families and even removed children directly from the care of extended family members, placing them for adoption with white, middle-class parents who conformed to their image of the ideal nuclear family.79 iap administrators were so confident in their abilities to obtain children in this way that they “promised interested adoptive families that they could generate indian children to be adopted.”80 as joseph reid, the executive director of the child welfare league of america during the time when it was operationalizing the iap, put it, “in the event the bia did not have an indian child suitable to meet the needs of an interested family, we are sure that arrangements could be worked out with a few of the state welfare departments to find an appropriate child.”81 2. the adoption of black children and the development of the modern family regulation system black children had been largely excluded from both public and private child welfare and adoption services for decades, even when their families actively sought out such services: they were turned away from both nineteenth-century white child-saving organizations and the vast majority of post-war adoption agencies.82 black families were not permitted to adopt children through these agencies, while pregnant black women 73 see jacobs, generation removed, supra note 69, at 39–64; jacobs, remembering the “forgotten child”, supra note 71, at 140–41. 74 see jacobs, generation removed, supra note 69, at 48–49, 59–62; jacobs, remembering the “forgotten child”, supra note 71, at 142–44. 75 jacobs, generation removed, supra note 69, at 48. 76 jacobs, remembering the “forgotten child”, supra note 71, at 143. 77 id. at 144. 78 id. 79 see id. at 146–47. 80 id. at 150. 81 id. see also jacobs, generation removed, supra note 69, at 26, 83–86. 82 see billingsley & giovannoni, children of the storm, supra note 36, at 21– 86. 576 colum. j. race & l. [vol. 12:557 who wanted to place their babies for adoption were denied the opportunity to do so on the ground that there were not any adoptive families available for them83—and then, when they kept and raised their children, depicted as the cause of all of the social and economic ills plaguing the black community.84 in the mid-to-late 1950s, the national urban league and others launched a series of initiatives aimed at increasing black families’ access to adoption.85 while large numbers of black families applied to adopt through the programs, they were referred to agencies where social workers continued to regularly reject them on grounds such as their residence in “overcrowded” neighborhoods, their age, their inability to produce marriage or birth certificates, their “inadequate” income, or the fact that both members of the couple worked outside the home.86 thus, while these initiatives did lead to an increase in the adoption of black children, the increase was far smaller than initially hoped by the programs’ creators. the initiatives also led to a small number of transracial adoptive placements, with white families who could not obtain a white baby for adoption accepting a black child instead. follow-up studies on these families later revealed that most continued to live in all-or-mostly-white neighborhoods and that many had not told their adopted children they were black.87 around the same time, in the early 1960s, as the civil rights movement began to make inroads against de jure segregation, southern state governments began to take a more violent approach to the purported “epidemic” of single motherhood and illegitimacy in the black community. using concerns about the supposed immorality of single black mothers and the “unsuitability” of their homes as a basis, states responded to the civil rights movement’s challenges to the structures of white supremacy first by removing thousands of black families from the welfare rolls and then by removing their children for “neglect” and placing them in out-of-home care.88 in less than a decade, the “number of [b]lack children in out-of-home care had skyrocketed”89—the result of concerted efforts by state officials to undermine black resistance.90 83 see id. at 142, 144–45; briggs, somebody’s children, supra note 7, at 35. sometimes it went even further than simply being turned away. according to historian rickie solinger, “the mandate for a [b]lack woman to keep her child was so strong and enforceable that when a [b]lack unwed mother tried to put her baby up for adoption . . . the court charged her with desertion.” solinger, wake up, supra note 62, at 27. 84 see supra note 67 and accompanying text. 85 billingsley & giovannoni, children of the storm, supra note 36, at 139– 73; briggs, somebody’s children, supra note 7, at 32–37. 86 briggs, somebody’s children, supra note 7, at 30–35. 87 id. at 37. 88 see briggs, somebody’s children, supra note 7, at 38–44; briggs, taking children, supra note 70, at 32–44; claudia lawrence-webb, african-american children in the modern child welfare system: a legacy of the flemming rule, in serving african american children: child welfare perspectives 9, 9–30 (sondra jackson & sheryl brissett-chapman eds., 1999) (discussing the implementation of the flemming rule on home “suitability” requirement for public welfare). 89 briggs, somebody’s children, supra note 7, at 56. 90 see id. at 29–30, 38–44; briggs, taking children, supra note 70, at 32–44. 2022] adoption cannot be reformed 577 the massive increase in the numbers of black children in state care was unquestionably the result of systemic over-removal—which was, in turn, the result of states’ not-quite-unspoken policy of using child removal as a punitive means of asserting control over their black residents. yet, as “mounting evidence” demonstrated that black children were overrepresented in foster care, “public debate centered on why these children were not being adopted,” 91 rather than the need to decrease the number of children removed from their families in the first place or to increase the rate of reunification. more specifically, public debate centered on the need for more transracial adoption of black children by white families.92 in complete disregard of both the “long tradition of black people accepting needy black children into their homes,”93 and the ongoing racial discrimination against prospective black adoptive parents, concerns were raised that there were not enough suitable black families “willing” to adopt black children and that social workers were allowing these children to languish in foster care rather than let them be adopted by white families.94 this narrative not only reinforced racist ideas about black families, but also provided a new and improved way to bolster white supremacy— one that echoed the rhetoric of the iap regarding the best way to bring “equality” to native children. this allowed even purportedly anti-racist white people to support transracial adoption, because it was done in the service of “integration” of black children.95 it also provided children for white adoptive parents who were no longer able to find “enough” white children for adoption, as changes in social norms for middle-class white woman and increased access to birth control and abortion brought the baby scoop era to a close.96 as historian laura briggs writes: [there is] a certain bitter irony in the fact that over the long century after the end of slavery, few white people took any interest in the fate of [b]lack children on their own—at best, sponsoring a few segregated orphanage slots for them, at worst, consigning them to labor on the chain gang—but when, through the concerted efforts of [civil rights organizations], [b]lack babies began being made available for adoption, there was an unseemly scramble to make them 91 mical raz, abusive policies: how the american child welfare system lost its way 81 (2020). 92 see dorothy roberts, shattered bonds: the color of child welfare 165– 72 (2002) [hereinafter roberts, shattered bonds]; briggs, somebody’s children, supra note 7, at 46–48, 54–58 (discussing civil rights organizations’ opposition to the systemic dynamics of transracial adoption of black children by white families). 93 twila l. perry, the transracial adoption controversy: an analysis of discourse and subjugation, 21 n.y.u. rev. l. & soc. change 33, 88 (1993) [hereinafter perry, transracial adoption controversy]. see also billingsley & giovannoni, children of the storm, supra note 36. 94 see perry, transracial adoption controversy, supra note 93, at 82–89 (taking apart the “[d]iscourse that promotes the myth that white families are needed to rescue black children from foster care”). 95 see id. at 89–92, 94–95, 106. 96 of course, these families were generally only interested in healthy infants and young children, not the older ones—both black and white—who made up the majority of children in foster care. perry, transracial adoption controversy, supra note 93, at 46–47, 86–87. 578 colum. j. race & l. [vol. 12:557 available to white families rather than [b]lack families, notwithstanding the sometimes heroic efforts by [b]lack communities to support [b]lack orphans with few resources in the previous century.”97 3. asfa and adoption as “permanency” public discourse over the overrepresentation of black children in foster care and the need for an increase in transracial adoption culminated in a series of laws, beginning with the multi-ethnic placement act (“mepa”) in 1994.98 mepa was the result of “aggressive lobbying by supporters of transracial adoption,” who depicted transracial adoption as “a critical step in increasing the numbers of adoptions of black children” and “argued that race-matching policies forced black children to languish in foster care.”99 mepa prohibited agencies from refusing or delaying foster or adoptive placements “solely” because of a child’s or foster/adoptive parent’s race, color, or national origin.100 the interethnic placement provisions (“iep”) of the adoption promotion and stability act, enacted two years later, strengthened and clarified mepa’s “anti-discrimination” provisions by, among other things, removing the word “solely” from the statute.101 pursuant to these amendments, agencies have been found in violation of the statute for “[r]equir[ing] parents who adopted transracially to prepare a plan for addressing the child’s cultural identity” or “to evaluate the racial composition of the neighborhood in which they lived.”102 notably—and unsurprisingly—discussion of the need to eliminate racial consideration in adoption “focuse[d] on making it easier for white people to adopt black children.”103 as dorothy roberts notes, advocates for transracial adoption “don’t mention the possibility of blacks adopting white children” or “acknowledge that most race-matching in adoption involves matching white adoptive parents with white children,” so even as “the end of race-matching was defended as serving the interests of black foster children, it has helped to create a system that protects the rights of white adults to have access to the children of their choice.”104 in fact, it did even more than that. mepa-iep and the rhetoric around it—framing transracial adoption as the ideal way of improving the prospects of black children—allowed white prospective adoptive parents to have their choice 97 briggs, somebody’s children, supra note 7, at 48. 98 howard m. metzenbaum multiethnic placement act of 1994, pub. l. no. 103382, 551-554, 108 stat. 4056, 4056-57 (codified as amended at 42 u.s.c. § 1996b and 42 u.s.c. § 5115a (1994)). 99 roberts, shattered bonds, supra note 92, at 166. see also briggs, somebody’s children, supra note 7, at 115–21. 100 susan livingston smith et al., evan b. donaldson adoption inst., finding families for african-american children: the role of race & law in adoption from foster care 4, 15 (may 2008) [hereinafter livingston smith et al., finding families]. 101 adoption promotion and stability act of 1996, in the small business protection act of 1996, pub. l. no. 104-188, 1808i, 110 stat. 1755, 1904 (codified as 42 u.s.c. § 1996b). for a discussion of the passage of mepa and the ieps amending it, see briggs, somebody’s children, supra note 7, at 115–21; livingston smith et al., finding families, supra note 100, at 15–16. 102 livingston smith et al., finding families, supra note 100, at 36. 103 roberts, shattered bonds, supra note 92, at 167. 104 id. 2022] adoption cannot be reformed 579 of children to adopt, while also allowing those who chose to adopt transracially to understand and present this choice as evidence of their commitment to racial equality. in 1997, just a year after the iep amendments to mepa, president bill clinton signed the adoption and safe families act (“asfa”) into law.105 activists and scholars have called attention to the connections between asfa and two other cornerstones of the clinton presidency: the 1994 crime bill and the personal responsibility and work opportunity reconciliation act (“prwora”), which “ended welfare as we know it.”106 they are right to do so. asfa, the crime bill, and prwora all constituted violent attacks on low-income communities and communities of color, attacks that were bolstered by the same racist rhetoric, with supporters framing the laws as necessary to address an epidemic of drug addiction, violent crime, single motherhood, child abuse and abandonment, welfare fraud, and general dysfunction in urban—predominantly black and brown—communities.107 yet asfa was also closely connected to mepa-iep. as asfa’s primary author, the late child welfare advocate richard gelles, later admitted, the act was originally “not really an adoption bill at all.”108 rather, asfa was a “safe families bill,”109 meant to limit family preservation and reunification, facilitating the quick termination of parental rights on the assumption that the disproportionately black and brown parents of the thousands of children in foster care at the time were inherently unfit and simply unable to care for them, no matter what services they were offered.110 so long as these children were protected against the risk that they might be returned to their parents, what happened to them afterwards was not the central concern—as indicated by house speaker newt gingrich’s proposal that the united states bring back 105 adoption and safe families act, pub. l. no. 105-89, 111 stat. 2155 (1997). for a discussion of the rhetoric surrounding the passage and implementation of asfa, see generally naomi cahn, children‘s interests in a familial context: poverty, foster care, and adoption, 60 ohio st. l.j. 1189 (1999); dorothy e. roberts, poverty, race, and new directions, 1 wash. u. j.l. & pol‘y 63 (1999); see also roberts, shattered bonds, supra note 92, at 104–133. for a discussion of the implementation of asfa that focuses on its impact on child welfare agencies and outcomes for families, see olivia golden & jennifer macomber, framework paper, the adoption and safe families act (asfa), in intentions and results: a look back at the adoption and safe families act 8–34 (ctr. for the study of soc. pol’y, urban inst., paper series, 2009). 106 see, e.g., martin guggenheim, how racial politics led directly to the enactment of the adoption and safe families act of 1997, 11 colum. j. race & l. 711, 719–22 (2021); dorothy roberts, the dialectic of privacy and punishment in the gendered regulation of parenting, 5 stan. j. c.r. & c.l. 191, 193 (2009); shanta trivedi, adoption and safe families act is the ‘crime bill’ of child welfare, imprint (jan. 28, 2021), https://imprintnews.org/adoption/adoption-safe-families-act-crime-bill-child-welfare/51283 [https://perma.cc/r8ah-3eyr]. 107 see, e.g., guggenheim, supra note 106, at 721–28. for a contemporaneous example of this rhetoric, see richard cohen, orphanages: giving gingrich the dickens, wash. post (dec. 6, 1994), https://www.washingtonpost.com/archive/opinions/1994/12/06/ orphanages-giving-gingrich-the-dickens/c1d4b747-aff0-4036-9a69-fb214eba022b/ [https:// perma.cc/79cq-k4f8]. 108 richard wexler, take the child and run: tales from the age of asfa, 36 new eng. l. rev. 129, 146 (2001). 109 id. 110 see roberts, shattered bonds, supra note 92, at 104–21, 167–68. 580 colum. j. race & l. [vol. 12:557 orphanages.111 but this approach was not necessarily widely palatable, as indicated by the reaction to gingrich’s proposal.112 adoption, however, was “a very popular concept in the country” at the time113—particularly transracial adoption. thus, in order to “santiz[e]” the bill and “make it more appealing to a broader group of people,”114 asfa’s proponents transformed it into an adoption bill, adding a variety of measures intended to promote adoption, and connecting it rhetorically to mepa-iep and the push for increased transracial adoption of black children.115 in this form, asfa provided the final element of the contemporary idea of adoption: adoption as the ultimate form of “permanency” for children in foster care. taking the conception of adoption as a rebirth to new parents—a conception fully accepted during the baby scoop era, when millions of infants were first being placed for adoption—and applying it explicitly to older children in foster care, the proponents of asfa maintained that limits on reunification services, for the speedy termination of parental rights, were necessary so that children in foster care could start their lives anew, in their “forever” homes, with “better” parents.116 the act established bonus payments to states that placed over a certain baseline number of children for adoption each year. in order to realize the adoptionas-rebirth ideal for these children, asfa explicitly required that other potential options for children who were not being reunified with their parents—such as legal guardianship, third-party custody, or long-term foster care—be treated as second-choice alternatives.117 111 see, e.g., charles doersch, bring back the orphanage?, n.y. times upfront 10– 11 (mar. 10, 1995) (reporting on then-speaker of the house newt gingrich’s speech proposing to cut welfare payments to poor single mothers and set up orphanages to care for “abandoned” children). 112 see, e.g., editorial, orphanages are no solution, n.y. times (dec. 12, 1994), https://www.nytimes.com/1994/12/12/opinion/orphanages-are-no-solution.html [https://perma.cc/8xqq-mapc]; the fight over orphanages, newsweek (jan. 15, 1995), https://www. newsweek.com/fight-over-orphanages-181934 [https://perma.cc/35qb-8mtm] (printing hillary clinton’s response); jack anderson & michael binstein, gingrich’s illthought scheme for orphanages is scaring kids, deseret news (dec. 27, 1994), https:// www.deseret.com/1994/12/27/19150152/gingrich-s-ill-thought-scheme-for-orphanages-isscaring-kids [https://perma.cc/n5hv-v2k4]; anthony a. cupaiuolo, gingrich’s orphanages don’t come cheap, n.y. times (dec. 8, 1994), https://www.nytimes.com/1994/12/08/opinion/ l-gingrich-s-orphanages-don-t-come-cheap-049697.html [https://perma.cc/tm3k-pbw5]; vanessa gallman, republicans, states show little interest in orphanage plan, seattle times (dec. 11, 1994), https://archive.seattletimes.com/archive/?date=19941211&slug= 1946617 [https://perma.cc/5gng-glj7]. but see, e.g., richard mckenzie, gingrich was right about orphanages, l.a. times (dec. 24, 1998), https://www.latimes.com/archives/laxpm-1998-dec-24-me-57202-story.html [https://perma.cc/y268-jng4]. 113 wexler, supra note 108, at 146. 114 id. 115 see roberts, shattered bonds, supra note 92, at 165–72. 116 see, e.g., guggenheim, supra note 106, at 722–28. 117 see, e.g., 42 u.s.c. § 673b(d)(1). for a discussion of the subordination of other permanency options to adoption in the asfa and subsequent federal child welfare legislation, see generally gupta-kagan, supra note 9. the law has since been amended to provide bonuses for legal guardianships as well, although in some cases these bonuses are lower than those for adoption. see kathleen creamer & chris gottlieb, if asfa can’t be repealed, here’s how to at least make it better, imprint (feb. 9, 2021), https://imprint news.org/uncategorized/afsa-repealed-how-make-better/51490 [https://perma.cc/9nh4sh2p]. 2022] adoption cannot be reformed 581 e. the present day if you go online, you can find photographs and biographies of children available for adoption from foster care across the country; every state and the federal government run at least one of these websites, which seek to match families looking to adopt with children whose parents’ rights have been terminated.118 these children are variously described as “freed” for adoption—as if their legal ties to their families of origin were something they needed to escape—and waiting for their “forever” homes—as if a vast majority of them did not have siblings, extended family, and, most importantly, parents who fought for years to bring them back home. similarly, in the context of private adoptions, a quick search will uncover dozens of regularly-updated lists of “situations” posted by adoption agencies and facilitators around the country—primarily describing babies who have not yet been born and whose parents therefore have not yet actually placed them for adoption.119 to get more details, prospective adoptive parents have to pay a fee to the facilitator in question or sign up for a paid subscription to their website.120 “second chance adoptions,” run by a private adoption agency in utah, posts photographs of and detailed information about older children whose adoptions have been “disrupted”— that is, whose adoptive parents have decided not to provide them with “forever” homes—and whom the agency works to match with new adoptive parents.121 these listings—disturbing in and of themselves—are disconcertingly reminiscent of the newspaper announcements posted by child-savers in advance of the orphan train’s arrival in each new town,122 the advertisements placed by georgia tann—”yours for the asking!”123— and the newsletters published by the administrators of the indian adoption project featuring pictures of children “willing to live in any state 118 the federal government’s site is located at adoptuskids, https://www. adoptuskids.org [https://perma.cc/25nq-pfag]. the federal site compiles information about children from across the country and also provides links to each of the individual state sites at state photolists, adoptuskids, https://www.adoptuskids.org/meet-the-children/searchfor-children/state-photolists [https://perma.cc/lqy8-3qd4]. 119 see, e.g., adoption situations, act of love adoptions, https://aactoflove adoptions.com/adoption-situations/ [https://perma.cc/tly7-nyev]; premier adoption, https://www.premieradoption.org/adoption-situations [https://perma.cc/28fa-z359]; available situations, adoption for my child, https://www.adoptionformychild.com/ available-situations/ [https://perma.cc/5dl7-4uqx]; birth parents seeking families, lifetime adoption, https://lifetimeadoption.com/adoptive-families/birthparents-seekingfamilies/ [https://perma.cc/e2qu-7eb9]. 120 see, e.g., a plan for every family, adoption for my child, https://www. adoptionformychild.com/access-denied/ [https://perma.cc/l2es-4pk9]. 121 see, e.g., adoption dissolution, wasatch int’l adoption, https:// wiaa.org/adoption-dissolution/ [https://perma.cc/g7a8-7k98]; waiting children, wasatch int’l adoption, https://wiaa.org/2nd-chance-adoption/waiting-children/ [https://perma.cc/ ub4s-vcmt]. these children are often as young as six or seven years old, and most were originally adopted internationally or out of foster care. 122 gordon, orphan abduction, supra note 32, at 10. 123 see bisantz raymond, supra note 46, at 130 (photographs of advertisements that ran in local papers). see also supra note 54 and accompanying text. 582 colum. j. race & l. [vol. 12:557 that could offer them parents.”124 they also highlight a number of important continuities between adoption’s past and its present. first, adoption always has been and still is seen as a way of “saving” children from less-than-ideal circumstances, parents, and communities.125 at its worst, this child-saving mentality reflects the exact same racism, classism, and moral judgment displayed by the original child-savers and their progeny—evangelical christians adopting from overseas in order to spread the gospel,126 or adoption advocates like elizabeth bartholet, who explicitly argue that children in foster care should be quickly stripped of their parents and placed for adoption by middle-class white families because adoption will improve the children’s material circumstances and give them the ability to move more fluidly in majority-white spaces.127 at its best, it displays a lack of imagination. even many of those who know enough to oppose adoption from the family regulation system, because of the harms that the system causes, accept private adoption on the assumption that the parents of children placed for private adoption did not want to raise them or chose to give them a “better life”— without thinking about the economic and social conditions that led to this decision, or about the decades of social messaging about ostensibly “good” and “bad” parenting that made these parents believe their children would have a better life with parents who were married, more stably employed, of a different race, or who had more money. and many of those who oppose private adoption—including some birth mothers and adult adoptees— nevertheless think adoption from the family regulation system is acceptable because children in foster care need permanent homes. second, adoption is a business. from the very beginning, adoption has been deeply intertwined with money and power, specifically the respect and authority that “adoption professionals” obtain by their role in the process. financial status indisputably plays a role in which children are removed by the state or placed for adoption by their parents, and those adopting are nearly always financially better-off than those losing their children to adoption. adoption regularly moves children from marginalized communities to privileged ones. it also generates billions of dollars in fees 124 jacobs, generation removed, supra note 69, at 48. 125 see, e.g., david ray papke, family law for the underclass: underscoring law’s ideological function, 42 ind. l. rev. 583, 606 (2009) (“the law takes underclass families to be inferior, and ‘[u]nder nuclear family-based adoption policy, the law terminates the birth parents’ rights before it engrafts parental rights in the adoptive parents.’ when children then move to bourgeois nuclear families, the law assumes that this move must be good for the children.”) (quoting gilbert a. holmes, the extended family system in the black community: a child-centered model for adoption policy, 68 temp. l. rev. 1649, 1674 (1995)). 126 see, e.g., joyce, child catchers, supra note 7, at 39–74; kathryn joyce, the evangelical adoption crusade, nation (may 9, 2011), https://web.archive.org/web/2020 1022000344/https://www.thenation.com/article/archive/evangelical-adoption-crusade/; kathryn joyce, the evangelical orphan boom, n.y. times (sept. 21, 2013), https://www. nytimes.com/2013/09/22/opinion/sunday/the-evangelical-orphan-boom.html [https://perma. cc/g2wf-2y2w]; kathryn joyce, orphan fever: the evangelical movement’s adoption obsession, mother jones (may/june 2013), https://web.archive.org/web/20220614222937/ https://www.motherjones.com/politics/2013/04/christian-evangelical-adoption-liberia/. 127 see elizabeth bartholet, where do black children belong? the politics of race matching in adoption, 139 u. pa. l. rev. 1163, 1217–23 (1991). 2022] adoption cannot be reformed 583 from prospective adoptive parents (in private adoptions)128 and reimbursements and bonus payments from the government (in adoptions from foster care).129 and while many adoption and foster care agencies are non-profit, this money is essential to these agencies’ continued existence and the jobs of the people who work there—jobs that can be extremely wellpaying for those at the higher levels of these organizations and that bring respect and admiration to those who do them.130 third, adoption commodifies children and the separation of children from their parents. this can be seen all the way from georgia tann to her most obvious descendants, the independent adoption “facilitators” and for-profit agencies that charge prospective adoptive parents tens of thousands of dollars for their adoption “services”131 and run advertising campaigns encouraging pregnant women to make the “brave” and “selfless” decision to place their babies for adoption.132 it can also be seen in the efforts of iap administrators to “generate” native children for adoption by white liberals who believed that they would be saving these children from a life of poverty and neglect—and whose choice to adopt served as visible evidence of their devotion to equality and integration. the 128 see, e.g., tik root, the baby brokers: inside america’s murky private adoption industry, time (june 3, 2021), https://time.com/6051811/private-adoption-america/ [https://perma.cc/cvj4-atm7]; jessica stites, the adoption-industrial complex, in these times (nov. 4, 2013), https://inthesetimes.com/article/the-adoption-industrial-complex [https://perma.cc/5nau-jduu]. according to the children’s bureau of the u.s. department of health and human services, in 2016, the cost of a private agency adoption ranged from $20,000 to $40,000, plus additional expenses for legal and homestudy fees. child. bureua, u.s. dep’t of health & hum. servs., planning for adoption: knowing the costs and resources 3 (2016), https://www.childwelfare.gov/pubpdfs/s_costs.pdf [https://perma.cc/ 5cd5-p8y6]. 129 the children’s bureau has also reported that between 1998 and 2019, qualifying states and the district of columbia earned $815,773,875 in adoption incentive awards. child. bureau, u.s. dep’t of health & hum. servs., adoption and legal guardianship incentive payment program – earning history by state: fy 1998−fy 2019 (sept. 2020), https://www.acf.hhs.gov/sites/default/files/documents/cb/adoption_ incentives_earning_history_2020.pdf [https://perma.cc/lh7s-xdt9]. see also elizabeth brico, the government spends 10 times more on foster care and adoption than reuniting families, talk poverty (aug. 13, 2019), https://talkpoverty.org/2019/08/23/governmentmore-foster-adoption-reuniting/ [https://perma.cc/x5qp-smew]. 130 for example, according to public tax filings, the executive director of one new york city foster care and adoption agency makes well over $500,000 per year. jewish child care association of new york, propublica: nonprofit explorer, https://projects.pro publica.org/nonprofits/organizations/131624060/202001969349305755/full [https://perma.cc/ fgv2-muz7]. another makes a little over $400,000. the childrens aid society, propublica: nonprofit explorer, https://projects.propublica.org/nonprofits/ organizations/135562191/201431349349306068/irs990 [https://perma.cc/ju2w-5re8]. 131 there has been extensive reporting on the independent adoption “services” industry. see khazan, supra note 11; root, supra note 128; sheelah kolhatkar, how an adoption broker cashed in on prospective parents’ dreams, new yorker (oct. 18, 2021), https://www.newyorker.com/magazine/2021/10/25/how-an-adoption-broker-cashed-in-onprospective-parents-dreams [https://perma.cc/sa7u-hufc]. 132 see, e.g., claudia corrigan d’arcy, bravelove.org – another front for adoption profits, musings of the lame blog: adoption & birth mothers (nov. 9, 2012), https://www.adoptionbirthmothers.com/bravelove-org-another-front-for-adoption-profits/ [https://perma.cc/ja2b-9aw5] (exposing a private investment group behind a domestic adoption agency that promoted “want[ing] to witness an increase in domestic adoptions” and “conveying how courageous it is for a woman to place her child”); kathryn joyce, shotgun adoption, supra note 11 (describing bethany christian services’ “profuse praise of [mothers’] ‘selflessness’”). 584 colum. j. race & l. [vol. 12:557 fundamentally violent nature of the transaction at the heart of adoption is impossible to escape even when prospective adoptive parents are going into it with the most seemingly straightforward motive: simply wanting to become a parent. when a prospective adoptive parent is waiting to be “matched” with a baby or to receive a pre-adoptive foster care placement, what they are waiting for is the separation of a child from their parents— for a mother or father to decide that they are unable to parent, be coerced into that conclusion, or have that choice taken from them by a court. fourth, while asfa’s proponents may have succeeded in framing adoption as the ultimate form of “permanency” for children in foster care, adoption does not necessarily create a permanent familial bond between the adoptee and their new parents. not all of the households that took in children from the orphan train did so in order to add another member to their family; many were seeking a farmhand or a household servant.133 more than one of georgia tann’s clients sent their adopted children back to her after deciding that they were not as talented or intellectually gifted as the clients were led to believe.134 and even today, many adoptive parents do not view themselves as having the same obligation to their children as biological parents do. this is reflected by the number of “disrupted” and “broken” adoptions;135 the number of adoptees in therapeutic boarding schools, wilderness programs, and other institutional settings;136 and the 133 see supra note 41 and accompanying text. 134 bisantz raymond, baby thief, supra note 46, at 158–59. 135 see, e.g., myka stauffer: backlash after youtubers give up adopted son, bbc news (may 28, 2020), https://www.bbc.com/news/world-us-canada-52839792 [https:// perma.cc/2zpj-a5y9]; kathryn joyce, foster families keep getting child welfare payments despite broken adoptions, n.y. daily news (nov. 20, 2017), https://www.nydailynews.com/ new-york/foster-families-child-welfare-money-broken-adoptions-article-1.3645466; kathryn joyce, the worst adoption therapy in the world, daily beast (mar. 14, 2015), https://www.thedailybeast.com/the-worst-adoption-therapy-in-the-world [https://perma.cc/ 8xw6-nw5t]; diane mapes, it takes more than love: what happens when adoption fails, today (aug. 1, 2012), https://www.today.com/parents/it-takes-more-love-what-happenswhen-adoption-fails-918076 [https://perma.cc/2n69-lfkh]; jenn morson, when families un-adopt a child, atlantic (nov. 16, 2018), https://www.theatlantic.com/family/archive/ 2018/11/children-who-have-second-adoptions/575902/ [https://perma.cc/8k4y-whlz]; anita tedaldi, i gave back my adopted baby, guardian (nov. 20, 2009), https://web.archive.org/ web/20150804003909/https://www.theguardian.com/lifeandstyle/2009/nov/21/adoptionanita-tedaldi . statistics on the number of adoptive parents who give up their adopted children—known as “broken,” “failed,” or “dissolved” adoptions—are difficult to track, given the changing of adoptees’ names and the sealing of their records. dawn j. post & brian zimmerman, the revolving doors of family court: confronting broken adoptions, 40 cap. u. l. rev. 437, 441 (2012). estimates range from one to ten percent of finalized adoptions nationwide. id. at 443; see also emily matchar, broken adoptions: when parents “re-home” adopted children, time (sept. 20, 2013), https://ideas.time.com/2013/09/20/brokenadoptions-when-parents-re-home-adopted-children/ [https://perma.cc/hp56-gwwk] (citing statistics from the federal children’s bureau). a large percentage of youth voluntarily placed into foster care in new york city are the result of broken adoptions. post & zimmerman, supra note 135, at 452–53. 136 for an exploration of the over-diagnosis of “reactive attachment disorder” among adoptees and their over-placement in therapeutic boarding schools, see generally rachel stryker, the road to evergreen: adoption, attachment therapy, and the promise of family (2010). 2022] adoption cannot be reformed 585 multiple websites dedicated to assisting adoptive parents who want to informally or formally “re-home” their adopted children.137 iii. the harms of adoption as other pieces in this symposium have addressed, the surveillance imposed on families by the family regulation system and the removal of children into foster care are harmful in and of themselves.138 but adoption causes additional harm, meriting a separate critical consideration. under the model developed in the united states since the mid-nineteenth century, described in part ii, adoption—unlike other potential means of resolving a family regulation proceeding—completely severs the link between the parent and the child, substituting the child’s adoptive parents in every way for their birth parents. the reality stemming from this model is starkly illustrated by the profiles of children posted on the “second chance adoptions” website, nearly all of whom must have at least some living biological family members. some of these children were adopted just a few years before their adoptive parents decided to list them for “re-adoption,” and many were adopted domestically.139 yet instead of attempting to reunite these children with their parents or extended family—a solution that might address much of the trauma reported in their profiles—their adoptive parents and the agency are choosing instead to find them yet another “forever” home. it is as if their actual parents— parents who may have fought against the termination of their rights, or who may have placed them for adoption thinking that adoption would provide a “better life”—no longer exist at all. this severance has an obvious impact on the individual children and families involved. both the adoptee and their birth family experience the grief and trauma of losing each other, and the adoptee endures feelings 137 see, e.g., cbc news, fifth estate, a boy named moses, youtube (nov. 12, 2014), https://www.youtube.com/watch?v=4rsbcw11rdo (reporting on unregulated “rehoming”); megan twohey, americans use the internet to abandon children adopted from overseas, reuters (sept. 9, 2013), https://www.reuters.com/investigates/adoption/#article/ part1 [https://perma.cc/tbs9-725u] (first part of a series reporting on an investigation into the “underground market for adopted children”)); megan twohey, in a shadowy network, a pedophile takes home a “fun boy,” reuters (sept. 9, 2013), https://www.reuters.com/ investigates/adoption/#article/part2 (second part); megan twohey, with blind trust and good intentions, amateurs broker children online, reuters (sept. 10, 2013), https://www.reuters.com/investigates/adoption/#article/part3 (third part); megan twohey, despite grave dangers, government allows internet forums to go unchecked, reuters (sept. 10, 2013), https://www.reuters.com/investigates/adoption/#article/part4 (fourth part); megan twohey, orphaned in russia, brought to america, and then abandoned time and again, reuters (sept. 11, 2013), https://www.reuters.com/investigates/adoption/#article/ part5 (fifth part). 138 see, e.g., charlotte baughman, tehra coles, jennifer feinberg, & hope newton, the surveillance tentacles of the child welfare system, 11 colum. j. race & l. 501 (2021); angela olivia burton & angeline montauban, toward community control of child welfare funding: repeal the child abuse prevention and treatment act and delink child protection from family well-being, 11 colum. j. race & l. 639 (2021); clara presler, mutual deference between hospitals and courts: how mandated reporting from medical providers harms families, 11 colum. j. race & l. 733 (2021). 139 the profiles on the second chance adoptions website change regularly, making it difficult to provide citations to examples that would be accessible to future readers of this essay. it also seems inappropriate to link to the individual profiles of the children, whose private information presumably has been posted on the website by their adoptive parents without their knowledge and consent. 586 colum. j. race & l. [vol. 12:557 of abandonment, confusion about their identity and background, and loss of the “mirroring” that most children growing up with their biological relatives take for granted—the affirmation of seeing one’s own features and personality traits reflected in one’s parents, siblings, and extended family.140 these losses take on a precise character for children adopted out of foster care, who almost always had a relationship with their parents prior to the termination of their parents’ rights and the process of adoption. the losses are further magnified for transracial adoptees, who face the potential loss of culture, language, and necessary survival skills for growing up in a racist society.141 adult adoptees have been clear that their feelings of loss are not necessarily contingent upon or connected to their feelings about their adoptive parents—they can love their adoptive families and continue to be affected by the losses from being adopted.142 adoption also has an impact on adoptees’ wider communities. as the child-savers, the architects of the indian adoption project, and the southern politicians whose strategy of massive resistance to desegregation led to the creation of the modern-day foster care system were aware, taking a community’s children takes away its future. “stripping people of their children attempts to deny them the opportunity to participate in the progression of generations into the future—to interrupt the passing down of languages, ways of being, forms of knowledge, foods, culture.”143 140 see, e.g., reagan curtis & frances pearson, contact with birth parents: differential psychological adjustment for adults adopted as infants, 10 j. soc. work 347, 348 (2010) (pointing to literature establishing that “[s]eparation from birth parents is the root of many of the psychological issues that persist into adulthood for individuals who were adopted,” including feelings of “loss and grief” that are “rarely completely resolved and may intensify during milestone events,” as well as difficulties with identity development, low selfesteem, and feelings of rejection); susan m. henney et al., evolution and resolution: birthmothers’ experience of grief and loss at different levels of adoption openness, 24 j. soc. & pers. relationships 875, 882 (2007) (“twelve to 20 years following the placement of the adopted child, most birthmothers in this [study] continued to experience at least some feelings of grief and loss related to the adoption.”). many adoptees and parents whose children were adopted have written about the shortand long-term effects of these experiences. see, e.g., elizabeth brico, “the civil death penalty”—my motherhood is legally terminated, filter (july 13, 2020), https://filtermag. org/motherhood-legally-terminated/ [https://perma.cc/8kse-peww]; cathy heslin, we were all good adoptees . . . once, lost daughters (july 23, 2015), http://www.thelostdaughters. com/2015/07/we-were-all-good-adoptees-once.html [https://perma.cc/h29j-jbgn]; liz latty, what we lost: undoing the fairy tale narrative of adoption, rumpus (nov. 16, 2017), https://therumpus.net/2016/11/forced-into-fairy-tales-media-myths-and-adoption-fallacies/ [https://perma.cc/xb8y-u9s8]; deborah mccabe, signing away my son: i had to give up my rights because i’m incarcerated, rise (may 19, 2016), https://www.risemagazine.org/ 2016/05/signing-away-my-son/ [https://perma.cc/j39s-ab3h]. 141 see, e.g., carroll, supra note 10; * medina, searching for connection, identity, and community as a honduran-born adoptee, catapult (aug. 8, 2019), https://catapult.co/ stories/adoption-searching-for-identity-and-community-as-a-honduran-american-adopteeessay-by-medina [https://perma.cc/3bgn-j8hl]; asher d. isaacs, interracial adoption: permanent placement and racial identity — an adoptee’s perspective, 14 nat’l black l.j. 126 (1994); sandra patton-imani, birthmarks: transracial adoption in contemporary america 62–98 (2000); perry, transracial adoption controversy, supra note 93, at 62–65. 142 see, e.g., nicole chung, people want to hear that i’m happy i was adopted. it’s not that simple, buzzfeed news (oct. 1, 2018), https://www.buzzfeednews.com/article/ nicolechung/being-korean-and-adopted-by-white-parents-nicole-chung [https://perma.cc/ x45a-cuva]. 143 briggs, taking children, supra note 70, at 8. 2022] adoption cannot be reformed 587 the fact that adoption is still viewed as a form of child-saving only increases both the individual and community-wide harms of the practice. on an individual level, it creates an assumption that adoptees should be “grateful,” that they should not feel loss or grief as a result of not having been raised as part of their biological families, in the communities into which they were born—and that if they do grieve, they should never express it. this message is ever-present in society even when individual adoptive parents do not reinforce it.144 the expectation of gratitude is, of course, founded on the assumption that adoptees’ lives are necessarily “better” because they were adopted, not just different—and certainly not worse.145 on a community level, the message of adoption as child-saving reinforces long-standing, race-and-class-based notions about which communities and families matter—which parents are better, which childhoods are the right ones, and who deserves (or does not deserve) to be a parent. adoption disproportionately moves children from poor communities and communities of color into the homes of richer, whiter people; that this is supposedly done in the service of the children’s best interests both confirms existing prejudices against the families and communities into which those children were born and “legitimizes the[] parenthood [of adoptive parents] over that of the poorer women who birthed the[] children” adopted by them.146 144 a number of adoptees have written about the pressure to be “grateful.” see, e.g., ana maria guay, “suffer the little children”: adoption and toxic gratitude, the toast (nov. 19, 2015), https://the-toast.net/2015/11/19/adoption-and-toxic-gratitude/ [https:// perma.cc/7eql-t3vz]; grace newton, on gratitude and adoption, wordpress: red thread broken (may 1, 2019), https://redthreadbroken.wordpress.com/2019/05/01/ongratitude-and-adoption/ [https://perma.cc/6btn-jzt7]; matthew salesses, “i never asked for this”: on adoption, luck, and thankfulness, the toast (nov. 25, 2015), https://thetoast.net/2015/11/25/adoption-luck-thankfulness/#idc-container [https://perma.cc/v799lmhb]; amanda woolston, who is entitled to my gratitude?, declassified adoptee (feb. 13, 2013), http://www.declassifiedadoptee.com/2013/02/who-is-entitled-to-my-gratitude.html [https://perma.cc/l84b-kwpz]. 145 one specific variant of this expectation of gratitude—namely, the suggestion that adoptees must be grateful that they were adopted rather than aborted—has become a topic of conversation in the national media this year, following supreme court justice amy coney barrett’s comment at oral argument that safe-haven laws allowing women to surrender their newborn babies with no questions asked would “take care of” advocates’ concerns about limitations on access to abortion. see, e.g., irin carmon, amy coney barrett’s adoption myths – “they’re co-opting our lives and our stories.”, n.y. mag.: intelligencer (dec. 3, 2021), https://web.archive.org/web/20211203152935/https://nymag.com/ intelligencer/2021/12/amy-coney-barrett-adoption-myths.html?utm_source=tw . 146 joyce, child catchers, supra note 7, at 95. see also, e.g., appell, controlling for kin, supra note 23, at 89–90 (detailing adoption’s consistent function as a “mechanism to regulate race, and women’s sexuality and reproductive choices, imposing or prohibiting the right to place a child for adoption depending on the mother’s race and affording pregnant girls more freedom to relinquish their babies for adoption than to obtain an abortion”); dorothy e. roberts, why baby market’ aren’t free, 7 u.c. irvine l. rev. 611, 612 (2017) (arguing that “baby markets aren’t free” because they “operate within a context of interlocking systems of race, gender, and disability oppression” and in turn inherently “impose tangible and intangible costs on parents and children who are devalued and marginalized by those systems”). cf. solinger, beggars and choosers, supra note 10, at 7 (arguing that, in the “era of choice,” as “babies—and pregnancy itself—became ever more commodified, some women were defined as having a legitimate relationship to babies and 588 colum. j. race & l. [vol. 12:557 the idea of adoption causes additional harms. specifically, the concept of adoption as a complete “rebirth” of the adoptee that is inherently more permanent than any other form of alternate caretaking has a significant, negative impact on case planning and judicial decision-making for families caught up in the family regulation system. legal scholars and journalists have outlined the details of this impact, describing the ways in which asfa’s explicit prioritization of adoption leads agencies and courts to eagerly pursue termination of parental rights and adoption for children who are placed in “pre-adoptive” homes regardless of the strength of the parent-child bond; the fact that guardianship or third-party custody is an available (and potentially superior) option for the family in question; the fact that the parent is making progress on their service plan; or even the fact that the parent has reunited with or maintained custody of other children and is successfully parenting them.147 as has been made clear in the over two decades since its passage, asfa’s focus on adoption as the ideal form of “permanency” for children in foster care—an aspect of the statute that was added merely to sanitize it and make it more appealing to liberals who might not want to see themselves as eager to aggressively terminate the parental rights of low-income parents without some greater purpose in mind—incentivizes agencies and courts to pursue adoption whenever adoption is a possibility, separate and apart from other considerations—such as the actual best interests of the child. co-author ashley albert’s experience illustrates this dynamic. ashley is the mother of three children, but was made to surrender her rights to two of them—her two youngest, who were placed with a foster motherhood status, while others were defined as illegitimate consumers” by reinscribing racialized social hierarchies). the particular function of adoption should be placed in the context of a recent historical shift in the dominant discourse about poverty; the past several decades have seen the rise of the “view that poverty, problems attendant to poverty, and racial affiliation are matters of individual choice that have individualized solutions,” such that “poverty, homelessness, child neglect, and economically blighted and isolated communities reflect personal pathology.” annette r. appell, disposable mothers, deployable children randall kennedy, interracial intimacies: sex, marriage, identity, and adoption, 9 mich. j. race & l. 421, 421 (2004) (further elaborating this point by identifying manifestations of this discourse and pathology in “federal legislation that limits welfare benefits, promotes adoption of poor children, and removes barriers to transracial adoption,” all of which carry the “notion that poor (black) families are pathological so they should be discouraged from having children and the children that they do have would be better off with other parents”); 147 for detailed examinations of asfa that caution against its preference for the permanency of adoption, see lily adler, the meanings of permanence: a critical analysis of the adoption and safe families act of 1997, 38 harv. j. legis. 1, 11–12 (2001); dorothy e. roberts, kinship care and the price of state support for children, 76 chi.-kent l. rev. 1619, 1638 (2001); dorothy e. roberts, poverty, race, and new directions, 1 wash. u. j.l. & pol’y 63, 65 (1999); admin for child & fams., u.s. dep’t of health & hum. servs., acyf-cb-im-20-09, achieving permanency for children and youth (jan. 5, 2021); see also kathleen creamer & chris gottlieb, if adoption and safe families act can’t be repealed, here’s how to at least make it better, imprint (feb. 9, 2021), https://imprintnews.org/uncategorized/afsa-repealed-how-make-better/51490 [https://perma .cc/5xy2-2qt8]; eli hagar & anna flagg, how incarcerated parents are losing their children forever, marshall project (dec. 2, 2018), https://www.themarshallproject.org/ 2018/12/03/how-incarcerated-parents-are-losing-their-children-forever [https://perma.cc/ 2zu7-6qjj]; shanta trivedi, adoption and safe families act is the ‘crime bill’ of child welfare, imprint (jan. 28, 2021), https://imprintnews.org/ adoption/adoption-safe-familiesact-crime-bill-child-welfare/51283 [https://perma.cc/99bc-g5f4]. 2022] adoption cannot be reformed 589 parent who wanted to adopt them at the time that the termination of parental rights petition against her was filed. because her oldest son was not in a “pre-adoptive” home—and, as an older child, was not as likely to find an adoptive home—the agency never filed a termination petition as to him. his dependency proceeding was ultimately resolved with an order of custody to his grandfather—a resolution that allowed ashley to remain his legal parent and for him to eventually return home. ashley’s younger children were not, of course, more in need of “permanency” than their older brother, and no reason was ever given to explain why ashley was unfit to be their mother yet fit to remain their brother’s. the idea of adoption does more than just impact agency and judicial decision-making, leading to unnecessary terminations of parental rights and the destruction of families caught up in the family regulation system. rather, just as it “sanitize[d]” the bill that became asfa—making it acceptable to those who might otherwise be uncomfortable with the outcomes it promoted—the idea of adoption sanitizes the decisions made by agencies and courts in pursuit of that idea. the idea of adoption as a complete “rebirth” for the adoptee allows the individuals involved in the decision-making process to view themselves as child-savers rather than family-destroyers, and in that way allows them to continue doing the work they do each day. as law professor sacha coupet explains: “many seem to prefer adoption precisely because it leaves nothing behind. only adoption … offers the promise of “rebirth,” wiping the slate clean and permitting … children to start anew with healthier, untainted families. once a new and improved parent-child dyad is constructed, the system is redeemed and the status quo is reinstated.”148 without adoption as the ultimate goal, caseworkers, attorneys, and judges—the individuals who actually make terminations of parental rights happen—might be forced to look more closely at what they are doing when they choose to pursue termination over other options. iv. reform is not enough as described in part i, when ashley surrendered her parental rights to her younger children, she did so on the condition that she could continue to speak with and visit them. this possibility is available to parents who surrender their rights in washington and a number of other states,149 as the result of an adoptee rights movement that began in the late 1970s and grew through the 1980s and 1990s. led by adult adoptees and mothers who had lost their children to private adoptions during the baby scoop era, this movement pushed for an end to secrecy in adoption, the unsealing of adoptees’ records and original birth certificates, support for adoptees who chose to search for and reunite with their birth parents. ultimately, it brought about a shift toward “open” adoptions, in which the adoptee’s birth and adoptive families share identifying information and potentially maintain contact with each other throughout the adoptee’s 148 sacha coupet, swimming upstream against the great adoption tide: making the case for impermanence, 34 cap. u. l. rev. 405, 406 (2005). 149 see supra note 2. 590 colum. j. race & l. [vol. 12:557 childhood.150 these reforms were framed as a way to lessen some of the fundamental harms of adoption, including the adoptee’s sense of lost identity and the grief and loss suffered by adoptees and their parents.151 open adoption is now the norm in private placements, with the majority of domestic agencies encouraging open adoption or employing it as standard practice, placing children in closed adoptions only upon request of the birth parents.152 according to a 2008 survey of one hundred domestic private agencies with infant adoption programs, from 2006 to 2008, only five percent of infant adoptions were completely closed, fifty-five percent were “completely open” (defined as involving the exchange of identifying information and direct contact between the birth and adoptive families), and forty percent involved some form of mediated openness, such as sharing of information or photographs via the adoption agency.153 open adoption has also become much more common in adoptions from foster care, at least in cases like ashley’s, where parents agree to surrender their rights instead of exercising their right to a trial on the termination of parental rights petition filed against them.154 open adoption has been depicted as “nothing less than a revolution.”155 in addition to helping to repair the loss suffered by both adoptees and their parents and allowing the adoptee access to their full identity—”healing the split between biology and biography,” as one 150 see melosh, strangers and kin, supra note 10, at 238–86 (describing the beginnings of the adoptee rights movement); modell, sealed and secret kinship, supra note 17, at 24–71 (same); solinger, beggars and choosers, supra note 10, at 103–38 (same); carol sanger, bargaining for motherhood: postadoption visitation agreements, 41 hofstra l. rev. 309, 309–14 (2012) (same). 151 see, e.g., annette baran & ruben pannor, open adoption as standard practice, 63 child welfare 245, 246–48 (1982) (discussing the benefits of open rather than closed adoption); annette baran & ruben pannor, perspectives on open adoption, 3 future of child. 119, 122–23 (1993) (same); deborah h. siegel & susan livingston smith, evan b. donaldson adoption inst., openness in adoption: from secrecy and stigma to knowledge and connections 16–21 (mar. 2012) [hereinafter siegel & livingston smith, openness in adoption], https://go.usa.gov/xpsnf [https://perma.cc/7yyn-6yfv] (same). 152 see susan m. henney et al, changing agency practices toward openness in adoption, 1 adoption q. 45, 55 (1998); lisa a. tucker, from contract rights to contact rights: rethinking the paradigm for post-adoption contact agreements, 100 b.u. l. rev. 2317, 2323–24 (2020) [hereinafter tucker, contract rights to contact rights]. 153 siegel & smith, openness in adoption, supra note 151, at 7, 22–23. according to another survey from 2007, nearly two-thirds of private adoptions involve some contact between adoptive and birth families. id. at 15; sharon vandivere et al., adoption usa: a chartbook based on the 2007 national survey of adoptive parents, u.s. dep’t of health & hum. servs. 45 (2009) [hereinafter vandivere et al., adoption usa], http://aspe.hhs.gov/ hsp/09/nsap/chartbook/index.pdf [https://perma.cc/c94f-hdre]. 154 despite the increase in open adoptions from foster care—and despite the fact that children adopted from foster care are generally older than children adopted privately and are significantly more likely to have lived with their birth family at some point— openness remains more common in private adoption than in public adoption. see vandivere et al., adoption usa, supra note 153, at 45 (“67 percent of privately adopted u.s. children have pre-adoption agreements compared with 32 percent of children adopted from foster care. . . . [o]ver two-thirds of privately adopted u.s. children (68 percent) have had contact with their birth families following the adoption, as have almost two-fifths of children adopted from foster care (39 percent).”). 155 see, e.g., adam pertman, adoption nation: how the adoption revolution is transforming america 4–5 (2000). 2022] adoption cannot be reformed 591 advocate for open adoption puts it156—open adoption has been described as a solution to the “inherent[] power imbalance[]” between birth and adoptive parents,157 and as a way of ensuring that transracial adoptees are able to grow up with racial mirrors and a connection to their cultural heritage.158 legal scholars have approached open adoption as one of a series of radical changes not only to the american conception of adoption, but to the very idea of the nuclear family itself, viewing it as one example of a “multiparental family structure.”159 yet open adoption is not as radical as it may seem. first, there is the unsettled issue of what it means for an adoption to be “open.”160 the definition of an open adoption is broad. an adoption is “open” if the adoptive and birth families view each other as extended family and are involved in each other’s day-to-day lives—celebrating birthdays together, attending school pageants and graduations, possibly even babysitting each other’s children—or where the families, although not as close, make an effort to stay in regular contact through phone calls, social media sites, letters and visits. an adoption is also “open” if the adoptive and birth parents simply meet each other prior to placement and possibly exchange last names or other identifying information, without ever meeting again, or if they communicate only through the adoption agency, without ever meeting faceto-face or exchanging any identifying information. using definitions from the 2008 survey discussed above, an adoption could be described as “completely open”—the most “open” category in the survey—even if that “openness” was limited to annual letters sent directly from the adoptive parents to the birth parents, with no direct contact at all between the adoptee and any member of her birth family.161 in adoptions from foster 156 lori holden, the open-hearted way to open adoption 9 (2013). 157 id. at 5–6 (“adoptions in the past were inherently power imbalanced. one set of parents was shamed and minimized, while the other was idealized and legitimized. open adoptions, however, are created when two sets of parents come together . . . [and] [n]either is in a superior position, and neither is a supplicant. instead, there is an inherent equality over time.”). 158 see, e.g., solangel maldonado, permanency v. biology: making the case for postadoption contact, 37 cap. u. l. rev. 321, 323, 330–56 (2008) (arguing that post-adoption contact “may be particularly beneficial for transracially adopted children”). 159 see, e.g., haim abraham, a family is what you make it? legal recognition and regulation of multiple parents, 25 am. u. j. gender soc. pol’y & l. 405, 406, 419 (2017); alison harvison young, reconceiving the family: challenging the paradigm of the exclusive family, 6 am. u. j. gender & l. 505, 506–508, 537–38 (1998). 160 as researchers deborah h, siegel, ph.d., and susan livingston smith, lcsw, explained in a report on openness in infant adoptions, it can be difficult to draw definite conclusions because the term “open adoption” is “used to describe a variety of contact arrangements” that can consist of anything from relationships with regular in-person contact, to once-a-year arrangements without any in-person contact, to even no contact at all after finalization of the adoption and exchange of contact information. as they say, “[s]ome people consider an adoption to be truly open only when the child is included in contact with members of the biological family, and others believe an adoption is open when the adoptive and birthparents know each other, regardless of whether the child knows about the relationship or has contact.” siegel & smith, openness in adoption, supra note 151, at 14. see also tucker, contact rights, supra note 152, at 2322–23 (discussing the “wide variety of relationships” that fall under the term “open adoption”). 161 according to their report, siegel and smith relied on the openness continuum established by researchers harold grotevant and ruth mcroy, which defines a “fully disclosed” adoption as one in which “[t]he parties are or have shared identifying information and/or contact directly, without agency mediation.” siegel & smith, openness in 592 colum. j. race & l. [vol. 12:557 care, post-adoption contact agreements are generally extremely limited. ashley’s allowed her four visits and twelve phone calls per year with her two children. many agreements allow for significantly less contact than that: co-author amy mulzer has represented parents who were offered as little as one visit a year in exchange for surrendering their parental rights. quite obviously, an adoption that permits the child’s parent a single visit per year or an occasional phone call does not address the harms of adoption. second, an adoption that is open at the outset or for some period may or may not stay that way, regardless of the parties’ understanding or explicit agreement at the time of placement. currently, only twenty-nine states and the district of columbia have legislation allowing the enforcement of post-adoption contact agreements.162 of those, many place restrictions on the types of adoptions in which enforceable agreements may be entered.163 if an agreement for post-adoption contact is not legally enforceable, the adoptive parents can “close” the adoption whenever they want, for whatever reason, with no repercussions—and can even enter into an agreement knowing full well that they do not intend to maintain openness. of course, even if an adoption is finalized in a state that provides for enforceability, that does not mean the parties’ agreement will be enforceable, or that the parents will be able to enforce it. to negotiate and enter into an enforceable post-adoption contact agreement, the parties— particularly the birth parents—need to be aware of the option. yet most states do not require or provide for separate legal counsel for the birth parent in a private adoption proceeding, and few of the twenty-nine states that allow enforcement statutorily require that any party to the adoption be specifically notified of the availability of an enforceable agreement.164 information about the option of an enforceable agreement—indeed, information about the entire range of available options—is generally in the agency’s hands, and the agency has plenty of reasons not to be completely adoption, supra note 151, at 10; susan ayers-lopez et al., evolution and reoslution: birthmothers’ experience of grief and loss at different levels of adoption openness, 24 j. soc. & pers. relationships 875, 881 tbl. 1 (2007). 162 amy whipple, the dubious ways parents are pressured to give up their children for adoption, vice (aug. 13, 2019), https://www.vice.com/en/article/qvg45m/thedevious-ways-parents-are-pressured-to-give-up-their-children-for-adoption [https://perma. cc/4grz-5972]. 163 for example, utah and vermont limit enforceable agreements to children who have been adopted from foster care. see utah code ann. § 78b-6-146; vt. stat. ann. tit. 33, § 5124. wisconsin limits such agreements to adoptions by relatives and stepparents. see wisc. stat. ann. § 48.925. indiana limits enforceable contact agreements to children ages two and older, see ind. ann. code § 31-19-16-2, and only permits non-enforceable agreements for children under two if the agreement does not include visitation, see ind. code ann. § 31-19-16-9. the vast majority of states limit enforceable agreements to situations in which parents voluntarily surrender their parental rights—a statutory framework that creates pressure for parents facing involuntary termination of their parental rights to surrender rather than go to trial. see, e.g., alaska stat. § 47.10.089; ind. code ann. § 3119-16-1; n.h. rev. stat. ann. § 170-b:14; vt. stat. ann. tit. 33, § 5124; wash. rev. code § 26.33.295. see also annette r. appell, survey of state utilization of adoption with contact, 6 adoption q. 75, 82 (2003) (discussing concerns that the option of post-adoption contact was being coercively “misused” as a settlement tool). 164 see 23 pa. cons. stat. § 2733 for an example of the rare exception. 2022] adoption cannot be reformed 593 upfront.165 after amy adopted her daughter through private adoption— with an agency that she chose specifically because it publicly presented itself as committed to open adoption—she discovered that the postadoption contact agreement she had made with her daughter’s parents was not enforceable, and that they had signed papers waiving enforceability without ever actually having had the option explained to them.166 then there is the issue of enforcement itself. enforceability does not have much meaning if parents cannot get into court. and while there is no way to know for sure how many parents are unable to enforce their postadoption contact agreements because of a lack of access to the courts, there is reason to believe the number is not insignificant. only one state enforceability statute specifically provides for appointment of counsel when a parent moves to enforce a contact agreement.167 the various procedural hurdles required to enforce these agreements in particular states make the situation more difficult. in some states, for example, parents are required to establish that they have tried to resolve the dispute via mediation or another form of alternate dispute resolution before filing a motion.168 some states require the party petitioning for enforcement to pay both parties’ costs if they lose.169 in nearly all states, the standard for enforcement makes it difficult for parents to prevail. many states have a “best interests” standard for enforcement of post-adoption contact agreements.170 thus, before a court may enforce an agreement, it must find not only that the adoptive parents have failed to comply with its terms, but also that enforcement would be in the child’s best interests. most of these states also place the burden of establishing that enforcement would be in the child’s best interests on the party moving for enforcement, rather than requiring the opposing party to 165 see, e.g., tucker, contract rights to contact rights, supra note 152, at 2325–29 (discussing the power dynamics in adoption and their effect on the behavior of adoption agencies and other adoption professionals); whipple, supra note 162 (discussing limitations on the information and counseling given to expectant parents, considering adoption agencies’ motives to not be upfront about all of the parents’ rights and what parents should expect). 166 cf. susan livingston smith, evan b. donaldson adoption inst., safeguarding the rights and well-being of birthparents in the adoption process 22 (2007) [hereinafter birthparents in the adoption process] (describing the experience of a young mother who decided to place her child for adoption through a “well-known internet adoption provider” but never received any counseling—despite her child’s adoptive parents being charged for “birthparent counseling expenses”—and was never told that she had the right to independent legal counsel, that there was a revocation period in her state, or that the open adoption agreement she had entered into was unenforceable). 167 alaska stat. § 47.10.089(i). additionally, new york state has a general provision regarding the appointment of counsel for certain indigent parties in family court proceedings, n.y. fam. ct. act § 262, which would apply to a parent petitioning for enforcement of a contact agreement. 168 see, e.g., cal. fam. code § 8616.5(f); conn. gen. stat. § 17a-112(g); la. child. code ann. art. § 1269.8(b); minn. stat. § 259.58(c); n.h. rev. stat. ann. § 170-b:14(ii)(i); or. rev. stat. ann. § 109.268. 169 see, e.g., cal. fam. code § 8616.5(i); ga. code ann. § 19-8-27(h); wash. rev. code § 26.33.295(4). 170 see, e.g., alaska stat. § 47.10.089(g); cal. fam. code § 8616.5(f); d.c. code § 4-361(b)(1); ga. code § 19-8-27(e); md. code ann., fam. law § 5-308(f)(1); mo. rev. stat. § 453.080(4); neb. rev. stat. § 43-166; n.y. dom. rel. law § 112-b(4). 594 colum. j. race & l. [vol. 12:557 establish that enforcement would not be in the child’s best interests.171 at least one state requires that the elements of the enforcement statute be established by “clear and convincing evidence”—a higher standard than that required to temporarily remove a child from their parent’s care or make a finding of abuse or neglect in all but icwa proceedings.172 one state allows the court to decline to enforce a post-adoption contact agreement not only if such enforcement would be “detrimental” to the child, but also if enforcement would “undermine the adoptive parent’s parental authority” or be “unduly burdensome.”173 the results of all this are unsurprising. as journalist kathryn joyce put it, “it’s hard to find an honest account of an open adoption that works: one where adoptive parents and birthparents have agreed that they will stay in touch and share the milestones of their child’s life, and then do so.”174 even when all of the adults involved go into it with the best of intentions, truly open adoption can be difficult—especially in a society that still views adoption as a complete rebirth of the adoptee to their adoptive parents. when things get complicated, it is easier for the adoptive parents to pull back, or even close the adoption entirely. and while many adoptive parents do go into open adoption with the best of intentions, it is clear many do not.175 at best, open adoption is a reluctant compromise; at worst, it is 171 compare, e.g., cal. fam. code § 8616.5(f) (“the court may not order compliance with the agreement absent a finding that . . . the enforcement is in the best interests of the child.”) with, e.g., la. child. code ann. art. § 1269.8(d) (“the court shall order continuing compliance in accordance with the agreement and refuse to modify or terminate it unless it finds that there has been a change of circumstances and the agreement no longer serves the best interest of the child.”). 172 alaska stat. § 47.10.089(g). 173 mont. code ann. § 42-5-301(3). 174 kathryn joyce, why does open adoption rarely work?, new republic (july 14, 2015), https://newrepublic.com/article/122298/why-does-open-adoption-rarely-work [https:// perma.cc/xc8y-gxxx]. see also birthparents in the adoption process, supra note 166, at 19 (summarizing a study’s finding that “only 37 percent of the adults in open adoptions had had in-person contacts in the previous two years and only in half . . . did children have any type of contact with their birthparents”); tucker, contract rights to contact rights, supra note 152, at 2335 (“several studies have found that an increasing number of adoptive parents promise birth parents ongoing post-adoption contact with the children they relinquish for adoption. follow-ups in waves over several years demonstrate, however, that contact tends to decrease as time goes on.”). 175 see, e.g., sharkkarah harrison, my child was allowed to choose adoption at 9, rise (may 17, 2017), https://www.risemagazine.org/2017/05/my-child-chose-adoption-at-9/ [https://perma.cc/cy7d-lu3h] (story by a mother who was almost entirely cut off by the adoptive mother of her daughter after she surrendered her rights, despite having been reassured beforehand that both she and her daughter’s siblings would be able to see her on weekends and holidays); sara werner, my daughter’s mother broke our visiting agreement, rise (may 18, 2017), https://www.risemagazine.org/2017/05/my-daughters-adoptive-motherbroke-our-visiting-agreement/ [https://perma.cc/vf86-jx62] (story by a mother whose daughter’s adoptive mother stopped allowing her to have visits after reassuring her that she would be able to see her daughter “even more” after she signed the surrender documents); mccabe, signing away my son, supra note 140 (story by a mother who was almost entirely cut off by her son’s adoptive parents after she surrendered her rights, even though they had agreed that she could continue to visit and speak to him regularly). see also joyce, child catchers, supra note 7, at 117–21 (discussing the phenomenon of open adoptions being “closed” by adoptive parents, and sharing the story of a birthmother); tucker, contract rights to contact rights, supra note 152, at 2329 (summarizing a small study of birth mothers who universally “felt betrayed, having entered into an agreement with prospective 2022] adoption cannot be reformed 595 a tool of coercion. many prospective adoptive parents agree to enter into open adoptions in order to be able to adopt at all, while adoption agencies use the prospect of open adoption to convince expectant parents to place their children for adoption.176 foster care agencies, judges, and attorneys offer the prospect of an open adoption to parents like ashley, who are facing the involuntary termination of their parental rights, in order to get them to surrender rather than take their cases to trial. open adoption agreements—especially but not only in the case of parents facing involuntarily termination—are essentially plea bargains: “[l]ike plea bargains, postadoption visitation agreements are hard decisions made under hard circumstances. like prisoners rolling the dice with regard to their liberty, mothers who are about to lose their children have a very small range in which to operate.”177 in this way, open adoption is not a radical change in adoption as practiced in the united states or in the conception of family in this country. it is a reform, in the same way that de-escalation training and body-worn cameras are reforms to policing—a change in how the system operates that appears to address significant issues but instead neutralizes the concerns raised to preserve the system as a whole.178 it is not a coincidence that the idea of “open adoption” first began to gain widespread support among agencies and other adoption professionals in the decades following the legalization of abortion, a decline in the stigma surrounding single motherhood among middle-class white women, and a significant decrease in the placement of infants for private adoption179—nor that organizations that advocate for the interests of foster and adoptive parents speak eloquently about the need to maintain bonds between adopted children and their families of origin while aggressively organizing against legal changes adoptive parents to maintain some form of contact . . . only to have that contact ultimately blocked”) (quoting email from study’s author). 176 unsurprisingly, agencies and other adoption advocates rarely speak explicitly about this motivation. they occasionally do, however. a particularly explicit discussion of open adoption as a reluctant compromise can be found in the national council for adoption’s “consider the possibilities” training program for social workers conducting “options counseling” with pregnant women. consider the possibilities, nat’l council for adoption, https://adoption.mclms.net/en/package/2924/course/1697/view [https://perma.cc/7ddtpzla]. one of the readings explains that openness is for the benefit of the child, not on the grounds that it allows the child to know “where she came from” or otherwise assists with healthy identity development, but instead “on the grounds that the birth mother would refuse the adoption if not granted the open context.” dr. terry olson, adoption practices in the humane world 3 (2005) (unpublished article made available through online training program) (copy on file with co-author). openness, then, is “acceptable or desirable because it is an alternative that either preserves the life of the child outright, or at least provides a better daily atmosphere and opportunity for growth and development in a mature, stable family,” but as the reading explains, “practically speaking, the welfare of the child is being held hostage by a mother who has chosen not to parent, but wants some degree of access to the child.” id. 177 see, e.g., sanger, bargaining for motherhood, supra note 150, at 332. 178 for examinations of the way that reforms such as trainings and body-worn cameras have worked to actually perpetuate systemic oppression in the policing and prison context, see amna a. akbar, an abolitionist horizon for (police) reform, 108 cal. l. rev. 1781, 1802–14 (2020); mariame kaba, toward the horizon of abolition, in we do this ‘til we free us, supra note 5, at 95–98 (2021); dorothy e. roberts, foreword, abolition constitutionalism, 133 harv. l. rev. 1, 42–43, 114–19 (2019). 179 see, e.g., sanger, bargaining for motherhood, supra note 150, at 314–15. 596 colum. j. race & l. [vol. 12:557 that would allow judges to enter enforceable post-adoption contact orders over the objection of the child’s pre-adoptive foster parents.180 moreover, in addition to propping up the practice of adoption and potentially insulating it against valid critiques, open adoption—even when it “works”—fails to actually solve the problems it purports to solve. take, for example, the claim, quoted above, that open adoption addresses the “inherent power imbalance” between birth and adoptive parents—a power imbalance that, as we have seen, has been at the heart of adoption in this country since the beginning.181 rather than correcting this imbalance, open adoption merely changes the nature of it, shifting (or perhaps reproducing) the systemic inequality of adoption on a small scale, in each of the parks, mcdonald’s play spaces, and backyards where mothers visit with their children under the watchful gaze of the adoptive parents. particularly when their post-adoption contact agreements are unenforceable but even when they are, given the difficulty of actually enforcing such agreements, birth parents have to be careful when interacting with their children and are under pressure to reassure their children’s adoptive parents that they are not a threat to their parental status.182 this dynamic is especially problematic in the case of transracial adoptions, which often place black and brown mothers’ interactions with their children under the scrutiny of their children’s white adoptive parents—a miniature, privatized 180 in 2019, the new york state legislature passed a law that would have given family court judges the ability to issue enforceable post-adoption contact orders after a parent’s rights were involuntarily terminated where such contact would be in the best interests of the child. see, e.g., stewart, supra note 10. the loudest voices calling for the governor to veto the bill came from a group claiming to represent adoptive and foster families in new york state—a group whose own website waxes poetic about the importance of maintaining connections between adopted children and their families of origin. following such strong opposition, the bill was vetoed at the governor’s desk. megan conn, new york governor gives adoptive parents ‘full right’ to decide if childre may have contact with birth parents, imprint (jan. 25, 2022), https://imprintnews.org/child-welfare-2/new-yorkgovernor-gives-adoptive-parents-full-rights-to-decide-if-children-may-have-contact-withbirth-parents/62157 [https://perma.cc/b7ff-65ku]. 181 cf. twila l. perry, transracial and international adoption: mothers, hierarchy, race, and feminist legal theory, 10 yale j.l. & feminism 101, 106 (1998) (“[a] feminist analysis of adoption must view adoption as more than an individual transaction in which one or two adults legally become [parents]. . . . [it] involves issues of hierarchy and power . . . among women . . . . [that] must be retrieved from the background, where they have existed largely in silence, and must be confronted in the open.”). 182 see elsbeth neil, the corresponding experiences of adoptive parents and birth relatives in open adoptions, in international advances in adoption research for practice 269, 287 (gretchen miller wrobel & elsbeth neil eds., 2009) (“relationships between adoptive parents and birth relatives are not based on an equality of power, but on recognition by birth relatives that adoptive parents have more power and willingness by adoptive parents to share some of this power.”). see also, e.g., jacquelyn b, forever grieving as a birth mother, the mighty (may 6, 2021), https://the mighty.com/2021/05/adoptionlifelong-grief-birth-mother/ [https://perma.cc/l95f-wwcq] (“being a birth mother you are constantly on egg shells. i always felt like a nervous wreck. you worry you will say the wrong thing and the family cut you out of the open adoption. . . . i never wanted to come off as needy, or trying to ‘co-parent.’ i understood she was their daughter.”); joyce, why does open adoption rarely work?, supra note 174 (“for many birthmothers at this stage, there’s a pressure to remain compliant: to avoid complaining or talking about their regrets, and instead to practice a panglossian gratitude, lest their relationship with the adoptive parents closes down.”). 2022] adoption cannot be reformed 597 replication of the very surveillance exercised by the family regulation system itself. similarly, while openness may help with the grief and loss of identity caused by adoption—and arguably does so more effectively than other reforms, such as open records and support for adult adoptees who wish to find and reunify with their families of origin—it is not a magic solution to the harms caused by adoption, as it is sometimes depicted. adoption records and adoptees’ original birth certificates should be open in all states as a matter of basic fairness; there is simply no justification for denying adoptees access to documents regarding their own identity and history. but even when unsealed, such records are not generally available until the adoptee in question turns eighteen years old. a reunion at that point will never get back the years that were lost. open adoption, by contrast, allows the adoptee to have an ongoing relationship with their family of origin throughout childhood—albeit an extremely limited one in many cases. yet at the same time, the ongoing nature of the relationship carries with it its own form of grief, as parent and child are made to say goodbye to each other over and over again.183 if anything, this grief is especially acute in the case of an adoptee whose parent is doing well or even raising other children, having gotten past whatever circumstances led to their adoption, as the adoptee is left to wonder why they are not being raised with their family. ashley’s open adoption was not one that “worked.” despite the conditions of her surrender, giving her the right to four visits and twelve phone calls with her children per year, and requiring that their names not be changed, she did not see either of her younger children again for over two years after she signed the papers. her daughter’s name was changed upon adoption. the children’s adoptive mother and other relatives told them that it was ashley’s choice not to see them, and that she had surrendered her rights because she did not want to be their mother anymore. 183 see, e.g., jacquelyn b, supra note 182 (“visits with my (birth) daughter were challenging. i would put on a happy face, when in actuality i was mourning her. after my visits with my daughter i would fall into a deep depression.”); reader note, the open wounds of an open adoption, atlantic (oct. 12, 2015), https://www.theatlantic.com/notes/ 2015/10/the-open-wounds-of-an-open-adoption/410143/ [https://perma.cc/fh5x-kwh4] (“as the years progressed, i found it more and more difficult to watch someone else raise my child . . . . i had no voice in the choices they made for her. . . . while my child grew without me in a home that was entirely foreign to my own. it has been the ultimate form of psychological and emotional torture. the worst hit me when my daughter considered suicide and ended up in a hospital, and i wasn’t allowed to contact her because i wasn’t a direct relative.”). in a memoir by a birth mother who placed her son in an open adoption and was able to remain a part of his life throughout his child, she addresses her grief and the difficult parts of the relationship. amy seek, god and jetfire: confessions of a birth mother (2015). in a series of entries on the sister wish blog, open adoption adoptees have posted about their experience. see meeting my real mom and sisters, sister wish (apr. 9, 2013), http://www.sisterwish.com/meeting/ [https://perma.cc/2n2t-pmrn] (describing the inability to be with “bio mom and sisters” as “soul crushing”); jealousy over pictures, sister wish (july 19, 2013), https://www.sisterwish.com/28-jealousy-over-pictures/ [https://perma.cc/ b7yt-wqh5] (describing the grief at the end of each visit, as an adult adoptee who grew up in an open adoption). 598 colum. j. race & l. [vol. 12:557 ashley fought back, taking her children’s adoptive mother to court and becoming one of the first parents to enforce and modify a post-adoption contact agreement in the state of washington. since the enforcement order was issued in january 2018, ashley has been able to visit with her children—although she has had nowhere near the number of visits dictated in the order, which provided for make-up visits in addition to those required under the original agreement. ashley was close to her children prior to their adoption, even following their removal from her care, and they were used to seeing each other multiple times a week for up to three or four hours per visit. the fact that they have been able to maintain their bond even after the state’s legal dismantling of their family is a testament not to the benefits of open adoption, but to their own resilience and the strength of their love for each other. now that ashley’s children are a little older, they have reached out on their own, just as ashley reached out to her own mother when she was in foster care as a teenager. in addition to communicating with each other via social media, ashley and her children have figured out ways to see each other outside of their rare, legally sanctioned visits by meeting up at the homes of extended family or mutual friends. v. conclusion: broadening our vision twelve years ago, co-author amy mulzer began to work as a family defense attorney, defending parents against allegations of child neglect and abuse in kings county family court in brooklyn. a week later, amy’s nowadopted son was placed in her home. and while it was impossible to completely disregard the seeming contradiction between her professional and personal life—working to keep children in their parents’ care while simultaneously raising another mother’s son as her own—amy was able to reconcile the two for several years, even adopting another child through the same agency. after all, her children’s parents had made a choice, albeit one they should not have had to make; their children were not taken from them by the state. and amy was trying to do everything “right”—her children retain the names their parents gave them; they frequently spend time with their mothers and siblings, both on their own and with her and her partner; and discussions of adoption in the family’s home are honest, direct, and detailed. amy and her partner, who are white, live in a community where they, rather than their children, are in the minority and have committed not to move outside of the new york city area, where their children’s families live, so they can easily remain in each other’s lives. yet, while there are important differences between private adoptions and adoptions out of foster care, amy eventually came to realize that the two types of adoption were not as distinct as she wanted to believe—especially when it came to her role. however much she loved her children, and however well-intentioned she was, as an adoptive parent she was still benefiting from a practice that had done a great deal of harm to families and children for decades—that was created to do harm—and that is still causing harm to the present day. after all, the societal forces that constrain the choices of the parents of amy’s children and others like them across the country—racial discrimination; the lack of a social safety net; restrictions on immigration and xenophobia; misogyny and a lack of 2022] adoption cannot be reformed 599 solutions for gender-based violence; and economic policies designed to keep a large segment of the american public at the bottom of the ladder, for the benefit of those at the top—are the same forces that had led to the creation and growth of the family regulation system, and the same forces that the practice of adoption serves to reinforce and cover. while individual children may have benefited from having been adopted into loving families and while individual adoptive parents may love their children and mean well—even making attempts to address the harms caused by adoption for their children and their children’s families of origin—adoption in this country has never been about serving the needs of children. on a societal level, it has always served interests other than the protection of children—maintaining racial order, assimilating immigrants, and defining and policing the boundaries of appropriate sexual behavior, family structure, and parenting. and on an individual level, it is structured to serve the desires of adoptive parents and those who stand to profit from them more than anyone else. children don’t need to have their legal ties to their families of origin severed, to be given new birth certificates and new names, and to be “reborn” as members of a completely new family unit. it is adoptive parents who want these things to happen, having been led to believe that the only way to bring children into their family and care for them is to make them theirs, as-if born to and in line with dominant ideas of the appropriate, heteronormative, biological family. the drafters of asfa got one thing right: children do need “permanency.” but what they need is not legal permanency, or even necessarily a complete continuity of primary caretakers. what they need is relational permanency: the knowledge that they will be cared for and that their important relationships will be maintained.184 when a child cannot be cared for by their parents on a day-to-day basis, those needs are best served not by adoption into an entirely new family, but rather by being cared for by adults who are able to love them without requiring that they be theirs alone, and who are able to respect and maintain both their identities and their relationships—even to the point of helping them transition back to their families of origin if circumstances change and their parents can care for them again. there will always be children who need alternate caretakers for part or all of their childhood—although there would be considerably fewer if we lived in a society that truly supported all families, and that respected the rights of all parents to raise their children. and there will always be adults who cannot or do not want to have biological children, but who want to have children in their lives and to care for them. it has become increasingly clear that the american system of adoption—requiring the complete severance of adoptees’ ties to their families of origin and their “rebirth” to their adoptive parents—is not a feasible way to address these seemingly complimentary needs. multiple generations of adoptees have told us that. and while the reforms they and others have demanded—open records; better training for adoptive parents, especially transracial 184 see randi mandelbaum, re-examining and re-defining permanency from a youth’s perspective, 43 cap. u. l. rev. 259, 275–76 (2015) (defining “relational permanency”). 600 colum. j. race & l. [vol. 12:557 adoptive parents; more consideration of race and culture in the adoption process; open adoption—seem to make sense, reform is not the answer. open adoption might be “better” than closed adoption for a parent and child otherwise faced with the prospect of losing each other completely, but it is not a genuine solution for a parent who wants to raise their child and would do so, but for temporary circumstances at the time of their birth or removal—nor for the child who otherwise could be raised by their parent. presented as a solution, open adoption serves primarily as a tool of the adoption industry itself, inducing parents outside the family regulation system to place their children for adoption based on the understanding that they will not completely lose them; pressuring parents in the family regulation system to surrender their rights rather than go to trial in order to maintain a connection to their children; convincing prospective adoptive parents that they can make a family out of other parents’ children without causing harm; and taking the sting out of adult adoptees’ criticisms because “things are different now.” what we need to do is not to “reform” adoption, but rather to broaden our vision of what it means to care for children—to broaden our vision of what it means to be a family—to include not only alternate forms of legal permanency, such as permanent guardianship, but also forms of alternate caretaking that are not legally permanent, but that give children whose parents are facing temporary obstacles to day-to-day parenting the stability and relational permanence they need to thrive, so they are able to return to their families of origin once the crisis is passed. in such a world, all of ashley’s children would have gone home, and she would be raising them now. these alternate caretaking options have always existed, outside of the family regulation system and the practice of adoption, and they continue to exist today, although in a diminished state after decades of active efforts to define and police the boundaries of the appropriate american family. unsurprisingly, the grandmas and aunties have had it right all along, and we would all do well to learn from them—to be the proverbial village. we may not be able to become parents to other parents’ children without causing harm, but we can give them what they need. i. introduction ii. adoption as family regulation a. child-saving and the creating of legal adoption b. georgia tann and the development of sealed records c. the “baby scoop” era d. the rise of transracial adoption, the modern family regulation system, and the “permanency” ideal 1. the indian adoption project 2. the adoption of black children and the development of the modern family regulation system 3. asfa and adoption as “permanency” e. the present day iii. the harms of adoption iv. reform is not enough v. conclusion: broadening our vision microsoft word brooks final columbia journal of race and law vol. 13 may 2023 no. 1 article black boarding academies as a prudential reparation: finis origine pendet1 roy l. brooks “the past is never dead. it’s not even past.” – william falkner, requiem for a nun 85 (1951) with billions of dollars pledged and trillions of dollars demanded to redress slavery and jim crow (“black reparations”) the question of how best to use these funds has moved into the forefront of the ongoing campaign for racial justice in our post-civil rights society. reparatory strategies typically target the norms and structures that sustain racial disadvantage wrought by slavery and jim crow. the goal of such transitional reparations is to extinguish the menace of white supremacy and systemic racism across the board. restructuring in housing, education, employment, voting, law enforcement, health care, and the environment—social transformation—is absolutely needed in the united states if the race problem is ever to be resolved. that much is clear beyond peradventure. the hard question, however, is whether black reparations can take us there. are black reparations (or reparations in general) powerful enough to engineer social transformation, or what in this case would be “transitional racial justice”? unfortunately, i do not believe they can. the american race problem is simply too big for reparations to fix. it would take decades of massive amounts of government spending and the sustained moral commitment of the american people to achieve transitional racial justice in this country. the inflationary impact of the requisite spending (estimated at $6.4 trillion to $59.2 trillion) would give opponents of reparations an easy target. moreover, transitional reparations have rarely been 1 “the end depends upon the beginning.” this is the motto of phillips academy andover, one of the great new england boarding academies. the surest foundation, andover, https://www.andover.edu/about/history [https://perma.cc/xw8k-hjce] (last visited mar. 27, 2023). the motto is a loose translation of “finisque ab origine pendet,” a line written by roman poet manilius in the first century. see mark langley, in education, the end depends on the beginning, lion & ox (oct. 17, 2017), https://lionandox.com/2017/ 10/17/in-the-education-of-the-young-the-end-depends-on-the-beginning/ [https://perma.cc/uxr9-6845].  warren distinguished professor of law at the university of san diego school of law. 2023] black boarding academies 791 attempted in other countries and when tried it has never succeeded to my knowledge. south africa attempted to use reparations for social transformation. while there has been a transformation of political power, giving black south africans a strong voice in the government, economic power remains in the hands of white south africans and racial discrimination in housing and education continues. although at one time i was among scholars who had hoped black reparations could deliver a much-needed third reconstruction, i would be remiss as a passionate supporter of black reparations for many decades to ignore the cold facts—reparations have never successfully reconstructed a society. but the perfect should not be the enemy of the good. while black reparations may not be sufficient for transitional racial justice, they can still play an important role in moving toward that goal. this article attempts to show one way of doing so. it argues that the initial payment of black reparations should take the shape of an education reparation. education can, as it has in the past with brown v. board of education, provide a foundation for significant racial progress. the type of education reparation broached in this article gives african american (or black american) parents or guardians a unique choice for educating their children—black boarding academies (bbas). kick started with public reparations, bbas would begin with pk-3 lowincome black children, giving special attention to those at risk of falling into the dreadful foster care system, and would expand to accommodate other classes of black students once financially stable with post-reparations funding. like most public boarding schools, bbas will have to be sustained with both public and private funds. fortunately, there is a wide range of available sources. historically, boarding schools have a poor reputation in educating children of color, especially indigenous americans. the few primary and secondary schools that board black students have not experienced such problems. neither have historically black colleges and universities (hbcus) at the postsecondary education level. following in this rich tradition, bbas will provide a safe and nurturing environment for black students. pedagogically, bbas will prepare students not just to survive but to thrive. students will be prepared to assume positions of leadership in our society whether they go directly into the job market or matriculate at hbcus or predominantly white institutions. one of the most effective instructional models in the country for leadership-oriented teaching can be found in elite new england prep schools. they have been doing this for centuries. using a modified version of their pedagogy—one self-consciously infused with a racial sensibility—bbas will be able to extend the pipeline 792 colum. j. race & l. [vol. 13:743 to leadership, normally available to upper-income and even middle-income african american students, to low-income african american students. indeed, the latter are the most vulnerable descendants of the enslaved. i. introduction .......................................................................................... 793 ii. understanding reparation and black reparations .......................... 797 a. the forms of reparations ........................................................... 798 b. the case for black reparations .................................................. 800 1. financial capital deficiencies ............................................. 801 2. human capital deficiencies ................................................ 803 c. the case for prioritizing black boarding academies ............... 805 iii. black boarding academies (bbas) .................................................... 810 a. mission .......................................................................................... 811 b. structure ....................................................................................... 813 1. prioritizing pk-3 grades initially ...................................... 813 2. prioritizing at-risk children .............................................. 817 3. administrators ..................................................................... 821 4. teachers ................................................................................ 823 5. pedagogy ............................................................................... 825 6. extracurriculars, counseling, and mentors ....................... 830 c. living ............................................................................................ 832 1. full-time boarding .............................................................. 832 2. ties to the black community .............................................. 834 d. finances ........................................................................................ 835 1. costs ...................................................................................... 835 2. post-reparations funding ................................................... 837 e. constitutionality .......................................................................... 840 1. governing law ..................................................................... 841 2. saving black reparations ................................................... 845 3. crafting eligibility for bbas ............................................... 849 iv. conclusion ............................................................................................ 850 2023] black boarding academies 793 i. introduction how should reparations for slavery and jim crow, commonly referred to as “black reparations,” be structured? this is a difficult question to answer, but one that must be faced not only by federal and state governments, the prime perpetrators of slavery and jim crow,2 but also by private entities asked to pay black reparations.3 demands for public reparations typically attempt to transform the american social order, changing the relationship between race and power in our society. transitional reparations—reparations that seek “transitional racial 2 demands for black reparations and other forms of redress have been made against the federal government, starting at the end of the revolutionary war. see roy l. brooks, atonement and forgiveness: a new model for black reparations 4–19 (2004) [hereinafter brooks, atonement and forgiveness]. a bill, h.r.40, calling for the creation of a commission to study the reparations issue has been introduced in congress almost without interruption each year since 1989. see h.r.40 commission to study and develop reparation proposals for african americans act, congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/40 [https://perma.cc/bmz8-kppp] (last visited mar. 27, 2023). some states and localities have also passed reparations legislation. for example, florida provided reparations for african americans who suffered property damage during the rosewood race massacre of 1921. rosewood compensation act of 1994, ch. 94-359, 1994 laws of fla. 3296–98. more recently, mayors of at least eleven cities have agreed to pay black reparations to small groups of their black residents. see, e.g., 11 u.s. mayors commit to developing pilot projects for reparations, npr/national (june 18, 2021, 7:16 pm), https://www.npr.org/2021/06/18/1008242159/11-u-s-mayors-commit-todeveloping-pilot-projects-for-reparations [https://perma.cc/krv4-c2ep]. los angeles, chicago, and other cities have also responded to demands for redress by requiring companies doing business in their cities to investigate and disclose any profits derived from slavery. brooks, atonement and forgiveness, supra note 2, at 15–16. these local laws expose private businesses to demands for private reparations. professor boris bittker, a leading tax scholar, wrote one of the most detailed legal arguments in favor of black reparations. see generally boris i. bittker, the case for black reparations (1973) (making the case for black reparations, while exploring the history of such claims, national and international precedents for such claims, and obstacles to a national reparations policy). for an excellent economic analysis of black reparations, see generally william a. darity jr. & a. kirsten mullen, from here to equality: reparations for black americans in the twenty-first century (2020) (arguing that black reparations are a solution for racial economic inequality). for an international study of redress, see when sorry isn’t enough: the controversy over apologies and reparations for human injustice (roy l. brooks ed., 1999) [hereinafter when sorry isn’t enough] (collecting international claims seeking redress for numerous human injustices). 3 private institutions with ties to slavery have considered paying black reparations. for example, harvard university has pledged $100 million in black reparations. see michela moscufo, harvard sets up $100 million endowment fund for slavery reparations, reuters (apr. 26, 2022, 1:33 pm), https://www.reuters.com/ world/us/harvard-sets-up-100-million-endowment-fund-slavery-reparations-2022-04-26/ [https://perma.cc/p8ku-tuy6]. georgetown university has promised to pay $1 billion, but descendants of the enslaved and georgetown students raise concern about how the money is going to be spent. see jesse washington, amid push for reparations, jesuits and georgetown to spend $1 billion on racial reconciliation and education, andscape (may 19, 2022), https://andscape.com/features/amid-push-for-reparations-jesuits-and-georgetown-to-spend1-billion-on-racial-reconciliation-and-education/ [https://perma.cc/2gut-ddtp]; gigi de la torre, slave descendants question georgetown’s $1 billion reparations fund, the college fix (may 25, 2022), https://www.thecollegefix.com/slave-descendants-question-georgetowns1-billion-reparations-fund/ [https://perma.cc/j8c3-ntmh]. for a discussion of private reparations, see. e.g., courtenay brown, corporations grapple with slavery reparations, axios (june 26, 2020), https://www.axios.com/2020/06/26/corporations-slavery-reparations [https://perma.cc/xf5r-bjfn].. 794 colum. j. race & l. [vol. 13:743 justice”4—are on full display in what is arguably the most important study of black reparations to date: the 500-page interim report issued by the california task force to study and develop reparation proposal for african americans.5 the task force consists of california politicians, community leaders, lawyers, and academicians. aided by the considerable resources of lawyers in the california department of justice, the task force is charged by the state legislature with “synthesiz[ing] documentary evidence of the capture, procurement, and transportation of africans for the purpose of enslavement; the domestic trade of trafficked african americans; the treatment of enslaved people; the denial of humanity and the abuse of african americans; and the discrimination and lingering negative effects that followed in the colonies that eventually became the united states, and the united states of today.”6 assembly bill 3121, the authorizing legislation written by college professor turned politician, dr. shirley weber, also charged the task force with recommending reparations that are: [a]ppropriate remedies of compensation, rehabilitation, and restitution for african-americans, with a special consideration for african-americans who are descendants of persons enslaved in the united states. the task force recommendations must address how they comport with international standards and how the state of california will apologize for its role in perpetuating gross human rights violations and crimes against humanity on enslaved africans and their descendants. the task force must address the role of california laws and policies in continuing the negative lingering effects on african americans as a group and how these injuries can be reversed. the recommendations must include how to calculate compensation, what form it will take, and who should be eligible.7 4 “transitional racial justice” can be understood as a specific, racialized way of thinking about transitional justice. cf. colleen murphy, transitional justice and redress for racial justice, in reconciliation and repair: nomos lxv, at 181, 181–82 (melissa schwatzberg & eric beerbohm eds., forthcoming may 2023) (describing a transitional model of redress grounded in critical race theory, institutional reform, and truth seeking). see also colleen murphy, the conceptual foundations of transitional justice 2 (2017) (exploring “the moral evaluation of the choices transitional communities make in dealing with wrongdoing”); ruti g. teitel, transitional justice 4 (2000) (evaluating “the role of law in periods of radical political transformation). 5 california task force to study and develop reparation proposals for african americans, interim report (2022) [hereinafter interim report] (reporting california’s failures to ensure racial equity in numerous areas and evaluating proposals for reparations). other studies have been conducted by private organizations. see, e.g., what are reparations, nat’l coal. of blacks for reparations in am., https://www.official ncobraonline.org/home-page [https://perma.cc/s676-uewc] (last visited mar. 28, 2023); institute of the black world 21st century, inst. of the black world 21st century https://ibw21.org/about/ [https://perma.cc/v79s-b5ze] (last visited mar. 28, 2023). 6 interim report, supra note 5, at 37. 7 id. 2023] black boarding academies 795 pursuant to this charge, the task force issued an interim report in 2022 so honest in its description of government-sanctioned or -mandated persecution of african americans under slavery and jim crow that it came with a “graphic content warning.”8 following the “atonement model,”9 the task force recommends a state apology and various forms of reparations— monetary and non-monetary compensatory and rehabilitative reparations10—designed to effectuate transitional racial justice.11 for example, non-monetary rehabilitative reparations (institutional or community-wide programs or services12) include establishing (1) a “statesubsidized mortgage system that guarantees low interest rates for qualified california black mortgage applicants;”13 (2) “free healthcare programs,”14 and (3) the creation of the california african american freedmen affairs agency, a cabinet-level secretary position tasked with, inter alia, implementing mandated reparations, processing eligibility claims, coordinating free legal services (“including criminal defense attorneys”), and providing business grants.15 two noteworthy monetary rehabilitative reparative policies are the creation of “a fund to support the development and sustainment of black-owned businesses” and raising the minimum wage.16 monetary compensatory reparations (money paid to victims individually with or without restrictions17) are quite extensive. they include the state of california: (1) paying restitution for the theft or destruction of black-owned businesses and property in california and making “housing grants, zero-interest business and housing loans available to black californians;”18 (2) compensating “individuals forcibly removed from their homes due to state action, including but not limited to park construction, highway construction, and urban renewal;”19 (3) funding “free tuition to california colleges and universities;”20 (4) compensating “families who were denied familial inheritances by way of racist anti 8 the front material of the interim report states: “this report contains discussions of racial discrimination, sexual assault, torture, lynching and other forms of extreme violence. the report contains unedited historical quotations and photographs of white supremacist hatred, torture, lynching, autopsy, and other forms of graphic violence.” 9 the “atonement model” calls for a perpetrator apology backed by sufficient reparations. it is to be distinguished from the “tort model,” which seeks no perpetrator apology, and includes no interest in racial reconciliation. for a more detailed discussion, see brooks, atonement and forgiveness, supra note 2, at 98–179. 10 for a discussion of the forms of reparations, see infra part ii.a. 11 although the task force’s interim reparations are presented with the expectation that the legislature is unlikely to accept all of them, the vast array of proposed reparations might suggest to lawmakers, especially those on the fence, that black reparations is too large a subject to try to tackle. hence, the need for a prudential approach such as the one presented in this article. my intention is not to criticize the interim report—it is magnificent—but to offer an alternative approach: transitional reparations vs. prudential reparations. 12 for a discussion of these terms, see infra part ii.a. 13 interim report, supra note 5, at 20. 14 id. at 23. 15 id. at 24. 16 id. at 22. 17 see infra part ii.a. 18 interim report, supra note 5, at 19. 19 id. at 20. 20 id. 796 colum. j. race & l. [vol. 13:743 miscegenation statutes, laws, or precedents, that denied black heirs resources they would have received had they been white;”21 (5) providing “financial restitution and compensation to athletes or their heirs for injuries sustained in their work if those injuries can be linked to anti-black discrimination policies;”22 compensating “individuals who have been deprived of rightful profits for their artistic, creative, athletic, and intellectual work;”23 and (7) compensating “individuals whose mental and physical health has been permanently damaged by anti-black healthcare system policies and treatment.”24 two excellent scholars, william darity jr. and a. kirsten mullen, also appear to favor transitional racial justice. they propose a “portfolio of reparations” that includes a wide range of rehabilitative reparations and compensatory (both unrestricted and restricted25) for each documented black descendant of the enslaved.26 darity and mullen calculate the cost of transitional racial justice based on the costs of justice denied to black people since the end of the civil war.27 if i had my druthers, i would prefer to use black reparations as a means to effectuate transitional racial justice. but reality cannot be ignored. the inflationary cost of transitional racial justice is prohibitive.28 more broadly, transitional racial justice has never been achieved in a developed country. south africa is one of the few countries that has attempted to use reparations as a means to social transformation. with the election of the legendary black activist nelson mandela as president in 1994, the country successfully transitioned from apartheid to democratic government, but economic power did not transition.29 overwhelmingly, economic power remains to this day in the hands of white south africans.30 in addition, racialized conditions in housing, employment, and education have not changed since the end of apartheid in 1994: during colonialism and structured apartheid from the late 1940s, black south africans were largely denied economic opportunities. more than a quarter century of democratic rule has seen the growth of a black middle class and a black business and political elite. yet, most south africans still suffer from a woeful education system that leaves them ill prepared for jobs, while townships, built for blacks during apartheid, leave them far away from workplaces. . . . laws ranging from affirmative action to mandating minimum 21 id. 22 id. at 22. 23 id. 24 id. at 23. 25 for a discussion of these terms, see infra part ii.a. 26 darity & mullin, supra note 2, at 264–65. 27 id. at 28–47, 256–70. 28 for a more detailed discussion, see infra part iii.d. 29 anthony sguazzin, south africa wealth gap unchanged since apartheid, says world inequality lab, time (aug. 5, 2021, 7:05 am), https://time.com/6087699/south-africawealth-gap-unchanged-since-apartheid/ [https://perma.cc/5wau-uj5z] (“there is no evidence that wealth inequality has decreased since the end of apartheid. asset allocations before 1993 still continue to shape wealth inequality.”). 30 id. 2023] black boarding academies 797 black-owned stakes in businesses have done little to narrow inequality.31 clearly, expectations regarding black reparations may have to be changed. without abandoning the ultimate goal of social transformation, it may be necessary to view black reparations in a more limited way. it benefits no one (except opponents of black reparations) to position black reparations for failure by asking it to do something that is unprecedented in the annals of international human rights. taking a prudential approach, this article argues that black boarding academies (“bbas”) should be the first black reparation. given the country’s limited moral and financial capital, bbas may end up being the only truly significant reparation the federal government or state governments provide for slavery and jim crow. that is even more reason to pursue bbas with great gusto right now. this article is organized as follows. part ii provides a general discussion of the forms of reparations, to which i add a new wrinkle (section a), a brief review of the case for black reparations (section b), and an argument for prioritizing black boarding academies (section c). part iii sketches the contours of black boarding academies. it touches upon the academies’ mission statement (section a), structure (section b), living arrangements (section c), finances (section d), and their constitutionality (section e). my ambition is to place enough food for thought on the table to create a foundation for further reflection about bbas and, more generally, the best way to structure black reparations— transitional reparations or prudential reparations? ii. understanding reparation and black reparations a reparation is a tangible act of restitution provided by the perpetrator of an atrocity to its victims.32 roundly denounced in international circles following world war i,33 reparations gained respectability when germany paid reparations to the victims of the holocaust.34 reparations are viewed today in a much more favorable light. they are typically deployed within one of two larger strategies for civil redress of past atrocities. each of these “models of redress” pursues a particular purpose and has a particular endgame. one model, the “tort 31 id. see also, unpicking inequality in south africa, the economist (sept. 23, 2021), https://www.economist.com/middle-east-and-africa/2021/09/23/unpicking-inequalityin-south-africa [https://perma.cc/76tr-zgvg] (“the racial income gap has narrowed since 1994. but the gains went largely to the black elite.). south africa deployed both compensatory and rehabilitative reparations. see brooks, what price reconciliation?, in when sorry isn’t enough, supra note 2, at 443, 446. 32 though reparations can be retributive, they usually are compensatory or restorative. they are, in other words, a form of civil redress in the aftermath of an atrocity where it is believed that criminal prosecution serves the interest of the state more than the interest of the victims of the atrocity. see roy l. brooks, reparations, in encyclopedia of race and racism 490, 490–93 (patrick l. mason ed., 2d ed. 2013). 33 “the punitive nature of the regime of reparations the allies visited upon germany under the treaty of versailles made this form of redress [reparations] the scorn of the international community.” brooks, atonement and forgiveness, supra note 2, at xiv. 34 “the holocaust . . . marks the beginning of the modern redress movement. id. at xv. 798 colum. j. race & l. [vol. 13:743 model,” prioritizes victim compensation.35 the other model, the “atonement model,” seeks reconciliation between the perpetrator and victims.36 the latter approach imbibes a post-holocaust spirit of heightened morality, egalitarianism, identity, and post-conflict justice.37 whether used under the tort or atonement model, reparations have rather distinct forms. a. the forms of reparations importantly, reparations are structurally different from gardenvariety civil or human rights laws. the latter are symmetrical in nature. they apply to all classes protected under such laws, such as any “race,” “color,” “sex” or “citizen.”38 in contrast, reparations are necessarily asymmetrical because they are tendered only to the victims of the atrocity. whether in the context of the holocaust, south african apartheid, the sexual enslavement of korean, chinese, filipino, malaysian, and other women by the japanese imperial army in the pacific theater of world war ii (the “comfort women”) or the united states government’s internment of japanese americans during world war ii,39 reparations come in two basic forms. they can be victim-directed (“compensatory reparations”) or community-directed (“rehabilitative reparations”). within these forms, reparations can be issued as cash (“monetary reparations”) or as services, programs, laws, museums or commemorations (“nonmonetary reparations”).40 problems arise when one confronts reparatory measures that fall between monetary and nonmonetary reparations; in other words, cashequivalents such as scholarships or housing and school vouchers. are these measures monetary because they serve the purpose of cash or have a cash value? or are they non-monetary because they do not have the liquidity of cash? this article argues that this issue can be resolved without constructing a new classification. refining monetary reparations is all that is needed. reparations consisting of scholarships or vouchers for housing or education are monetary, but not in the way unrestricted cash payments are. they are restricted cash payments. the victims have conditional use of the money. hence, one could distinguish between two types of monetary, or cash, reparations, whether compensatory or rehabilitative: 1) unrestricted payments (“up”), and 2) restricted, or conditional, payments (“rp”). the former would allow victims to spend money as the victims see fit. the latter would limit how the victims could spend the money. issuing a reparation in the form of a scholarship or a voucher is one way to ensure that the money is used for the intended purpose. the distinction between 35 id. at 98 (introducing the tort model). 36 id. at 141 (introducing the atonement model). 37 id. 38 see id. at 155, 192–93. 39 for a discussion of these and other atrocities, see generally when sorry isn’t enough, supra note 2 (compiling claims for international claims for redress after such atrocities). 40 see brooks, the age of apology, in when sorry isn’t enough, supra note 2, at 3, 9. see also, brooks, atonement and forgiveness, supra note 2, at 155–56. 2023] black boarding academies 799 up and rp helps explain why compensatory reparations are problematic, and why one might prefer rehabilitative reparations. up function as income supplements paid to the victims, either as one-time cash payments or as incremental payments. either way, the payments would have to be substantial to be meaningful. for example, an annual $30,000 per household member, lasting for one or two generations, would be substantial and, hence, sufficient unrestricted cash payments. a family of four would receive $120,000 in cash every year. but up are rather risky, for they could be spent at the victims’ discretion. they could, for example, be gambled away at a las vegas casino. such use of reparations certainly undercuts the moral justification for black reparations, particularly under the atonement model. there is also the problem of what scholars refer to as “predatory inclusion.”41 this problem occurs when unscrupulous vendors (e.g., insurance companies or investment schemers) or greedy relatives take advantage of unsophisticated recipients of reparative income.42 restricting the purposes for which reparations can be spent certainly resolves these problems. rp can only be used for designated purposes, such as to pay college tuition, establish school booster clubs that finance after-school activities in public schools, to pay for private tutors or tuition at private schools, to purchase a home or pay rent in a better school district, or to start up or expand a small business. but rp are not problemfree. they deny agency to the victims of the atrocity. we do not place restrictions on the plaintiff’s use of a jury award in a personal injury case. so why should we treat reparations any differently? are the victims not being disrespected, treated like children? also, victims who have received up have, in fact, made responsible choices. for example, i have personally spoken with one japanese american who used her $20,000 internment reparation to help put her grandchildren through berkeley. the power of this agency argument cannot be gainsaid. however, that argument is off the table when rehabilitative reparations are deployed. rehabilitative reparations can only be used for legitimate institutional purposes, such as for educating black children or providing loans to black businesses. because rehabilitative reparations are necessarily rp, agency is not an issue in this context. that is reason enough to prefer rehabilitative reparations over compensatory reparations. there are two additional reasons for preferring rehabilitative reparations. first, rehabilitative reparations, such as black boarding academies, are asset-building reparations. for that reason, they serve the best long-term interests of the african americans community. second, compensatory reparations are difficult to calculate and distribute when dealing with millions of victims. there were only 82,219 japanese americans who received reparations for their internment during world 41 roy l. brooks, racial reconciliation through black reparations, 63 how. l. j. 349, 358 (2020). 42 id. 800 colum. j. race & l. [vol. 13:743 war ii.43 payments to institutions like black boarding academies do not invite this administrative nightmare. there are fewer recipients. in addition, payment amounts are calculated based on the costs associated with running an institution. rehabilitative reparations are an essential component of a prudential reparative program. the forms of reparations beg a threshold question: do reparations, in any form, make sense? there is, in fact, a strong argument in support of reparations regardless of form—compensatory, rehabilitative, monetary (up or rp) or nonmonetary. my primary focus in this article will be on black reparations. b. the case for black reparations black reparations are designed to help undo centuries of black oppression wrought by slavery and jim crow. these reparations are justified on moral rather than legal grounds as legal recourse for slavery or jim crow is generally not available.44 the most powerful moral argument for black reparations can be summarized as follows: when a government commits an atrocity against an innocent people, it has, at the very least, a moral obligation to apologize and to make that apology believable by doing something tangible called a ‘reparation.’ the government of the united states committed atrocities against [b]lack americans for two and one-quarter centuries in the form of chattel slavery and for an additional one hundred years in the form of jim crow—what supreme court justices ruth bader ginsburg and stephen breyer refer to as ‘a lawenforced racial caste system’ —and it has not even tendered an apology for either. the u.s. government should, in fact, atone—that is, both apologize and provide reparations—for racial slavery and apartheid.45 43 by 1992, the u.s. government had disbursed more than $1.6 billion (equivalent to $3.67 billion in 2021) in reparations to 82,219 japanese americans (of the 120,000 who were interned). marnie mueller, wwii reparations: japanese-american internees, democracy now! (feb. 18, 1999), https://www.democracynow.org/1999/2/18/wwii_ reparations_japanese_american_internees [https://perma.cc/t4g6-zsn7]. these payments were conducted under the civil liberties act of 1988, pub. l. 100-383, § 105, 102 stat. 93, which authorized a payment of $20,000 (equivalent to $46,000 in 2021) to each former internee who was still alive at the time the act was passed. 44 legal problems in prosecuting past atrocities, including issues with statutes of limitations, sovereign immunity, and cognizable rights of action, take reparations out of the legal realm. see brooks, atonement and forgiveness, supra note 2, at 99. legislatures can, however, pass new laws that effectively overcome these legal problems. congress did this for japanese americans interned during world war ii, with the passage of the civil liberties act of 1988, see supra note 43, and florida did so for african americans who experienced property damage during the rosewood race riot of 1921. rosewood compensation act of 1994, ch. 94-359, 1994 laws of fla. 3296–98. see also brooks, atonement and forgiveness, supra note 2, at 12, 14–15 (describing legislative steps toward black reparations). 45 brooks, atonement and forgiveness, supra note 2, at ix. this argument views reparations as a feature of the atonement model rather than the tort model. these models for redressing past atrocities are discussed in note 32 supra. 2023] black boarding academies 801 this argument imbibes the post-holocaust spirit of heightened morality.46 it frames black reparations as redemptive acts that solidify the government’s apology for past racial atrocities. black reparations make the apology believable, more than just words. they turn the rhetoric of apology into a meaningful, material reality.47 “saying ‘i’m sorry’ just isn’t enough.”48 the moral argument is often buttressed by socioeconomic arguments. the latter refer to the lingering effects of slavery and jim crow, conditions that announce the presence of current victims of these past atrocities.49 continuing effects are subjects of redress. darity and mullen state: “we submit that the bill of particulars for black reparations also must include contemporary, ongoing injustices—injustices resulting in barriers and penalties for the black descendants of persons enslaved in the united states.”50 the ongoing injustices, or lingering effects, of slavery and jim crow are manifested as capital deficiencies—mainly financial and human capital deficiencies—within the african american community. 1. financial capital deficiencies sample pervasive and systemic racial inequities born of slavery and jim crow are still at work in our society.51 for generations, racial discrimination has prevented african americans from acquiring valuable financial assets (e.g., homes, land, investments, savings52) and passing those assets on to future generations.53 economists estimate that for the vast majority of americans, who are not of the likes of billionaires jeff bezos or bill gates, “up to 80 percent of lifetime wealth accumulation results from gifts from earlier generations, ranging from the down payment 46 see supra text accompanying notes 36–37. 47 “african americans, like any self-respecting people, can never forgive or fully trust our government on racial matters until it signals a clear understanding of the magnitude of the atrocities it committed against an innocent people. the past is the future.” brooks, atonement and forgiveness, supra note 2, at ix. 48 id. 49 in addition to socioeconomic conditions, these lingering effects may include psychological and political conditions. 50 darity & mullen, supra note 2, at 5. 51 see, e.g., brooks, atonement and forgiveness, supra note 2, at 47–48; lincoln quillian & arnfinn h. midtboen, comparative perspectives on racial discrimination in hiring: the rise of field experiments, 47 ann. rev. socio. 391, 391 (2021) (noting that “racial and ethnic discrimination [in hiring] is a pervasive international phenomenon that has has hardly declined over time”); shayanne gal et al., 26 simple charts to show friends and family who aren’t convinced racism is still a problem in america, insider (july 8, 2020, 1:04 pm), https://www.businessinsider.com/us-systemic-racism-in-charts-graphsdata-2020-6 [https://perma.cc/us8f-tftj]. 52 in 2020, only forty-four percent of african american families owned homes, compared to seventy-five percent of white families. liz mineo, racial wealth gap may be a key to other inequities: a look at how and why we got there and what we can do about it, the harv. gazette (june 3, 2021), https://news.harvard.edu/gazette/story/2021/06/ racial-wealth-gap-may-be-a-key-to-other-inequities/ [https://perma.cc/ru69-zcxl]. in 2018, roughly twice as many african american mortgage applicants were denied loans from banks than white applicants. gal et al., supra note 51. 53 mineo, supra note 52 (“most scholars agree that the legacy of slavery and other subsequent forms of legal discrimination against african americans have hindered their ability to accumulate wealth.”). 802 colum. j. race & l. [vol. 13:743 on a home to a bequest by a parent.”54 the result is a staggering wealth gap: the net worth of a typical white family ($100 to $200,000) is currently ten times that of a typical african american family ($10 to $20,000).55 “[t]he racial wealth gap [is] the most robust indicator of the cumulative economic effects of [slavery and jim crow].”56 in addition to wealth, income and occupational disparities are major lingering effects of past racial atrocities.57 african americans are more than twice as likely as whites to fall below the poverty line.58 african 54 dalton conley, the cost of slavery, n.y. times (feb. 15, 2003), https://www.nytimes.com/2003/02/15/opinion/the-cost-of-slavery.html [https://perma.cc/z5hr-hzb7]. 55 mineo, supra note 52. “today, black americans constitute approximately 13 to 14 percent of the nation’s population, yet possess less than 3 percent of the nation’s wealth.” h.r. 40 and the path to restorative justice: hearing on h.r. 40 before the subcomm. on the const., c.r., & c.l. of the h. comm. on the judiciary, 116th cong. (2019) (statement of william darity jr., professor, duke university) [hereinafter darity, h.r. 40]. steven s. rogers, retired harvard business school professor, explained how the government’s housing policies contributed to the racial wealth gap: after world war ii, there was a housing boom in america, fueled by the federal housing administration (fha), which was part of the new deal. at the time the country had a miniscule middle class. citizens were either poor or rich. suburbia did not exist. most home mortgages were amortized over five years with a balloon payment at the end. for the mortgages that existed during the depression, almost half were in default. the foreclosure rate was almost 1,000 per day. people primarily lived in cities, but, most significantly, prior to 1934, 20and 30-year home mortgages did not exist. therefore, only the wealthy could afford to own homes. this dynamic changed for white citizens with the creation of the fha, which allowed mortgages to be refinanced and guaranteed for new buyers. banks could issue mortgages because the federal government was assuming the risk. the results were that white banks issued millions of loans to white citizens, helping them create wealth. however, access to this capital was not available to black americans. in fact, the federal government forbade it. steven s. rogers, a letter to my white friends and colleagues: what you can do right now to help the black community 63 (2021). the government’s discriminatory housing policies included the imposition of restrictive covenants on white homeowners, preventing them from legally selling their homes to blacks, as well as redlining laws, preventing private lenders from issuing mortgages to black neighborhoods. id. richard rothstein discusses the current impact of the government’s jim crow housing policies: by the time the federal government decided finally to allow african americans into the suburbs, the window of opportunity for an integrated nation had mostly closed. in 1948, for example, levittown homes sold for about $8,000, or about $75,000 in today’s [2016] dollars. now, properties in levittown without major remodeling (i.e., one-bath houses) sell for $350,000 and up. white working-class families who bought those homes in 1948 have gained, over three generations, more than $200,000 in wealth. richard rothstein, the color of law: a forgotten history of how our government segregated america 182 (2017). student loan debt contributes to this inequality: on average, african american students owe $52.7 thousand, whereas white students owe $41.8 thousand. gal et al., supra note 51. 56 darity & mullen, supra note 2, at 263 (emphasis omitted). “[t]oday’s differential in wealth captures the cumulative effects of racism on living black descendants of american slavery.” id. at 264 (emphasis omitted). 57 moritz kuhn et al., income wealth inequality in america, 1949-2016, at 3 (opportunity & inclusive growth inst., 2018). 58 gal et al., supra note 51. 2023] black boarding academies 803 american unemployment is relatively high, and african american wages are relatively low, on average paying approximately 62% of what white employees made in 2018.59 african americans are unlikely to hold highpaying management and professional positions, and are dramatically underrepresented in positions of prominence: only four fortune 500 companies had an african american ceo in 2020.60 african americans are far more likely than whites to live in poorer, racially segregated neighborhoods, which corresponds to a long list of disadvantages.61 residents of these neighborhoods have access to fewer public amenities such as transportation, libraries, and police and fire protection. they also pay more for inferior commercial services such as in housing, food, healthcare, and insurance.62 these neighborhoods are plagued by pollution, environmental toxins, crime, homicide, drug and alcohol use, family turmoil, chronic illness, death, infant mortality, and high levels of antagonistic, often excessive policing.63 predictably, these living conditions impact african american health, especially the health of the most vulnerable african americans. low-income african americans are more likely to smoke and drink, eat unhealthy foods, and are less likely to exercise.64 in a 2017 report, the cdc reported that african americans have a higher death rate than white americans for all causes of death in all age groups below sixty-five years-old.65 additionally, racial disparities in rates of death from heart disease, cancer, diabetes, and cirrhosis have gotten worse since 1950.66 2. human capital deficiencies a lack of opportunities for gainful employment and an unconscionable incarceration rate for african american males, in 59 id. 60 id. 61 for example, in 2020, only 3.9 percent of the white population in the united states lived in high-poverty neighborhoods, compared to 18.9 percent of the black population. neighborhood poverty: all neighborhoods should be communities of opportunity, nat’l equity atlas, https://nationalequityatlas.org/indicators/neighborhood_ poverty [https://perma.cc/5pcj-3svp] (last visited mar. 29, 2023). 62 david r. williams & chiquita collins, racial residential segregation: a fundamental cause of racial disparities in health, 116 pub. health reps. 404, 410 (2001). see also leila fiester, annie e. casey found., early warning confirmed: a research update on third-grade reading 8–10 (2013) (describing the links between poverty, poor health outcomes, and poor educational outcomes). 63 see michael r. kramer et al., getting under the skin: children’s health disparities as embodiment of social class, 36 population rsch. & pol’y rev. 671, 678–79 (2017). african americans are much more likely than whites to be victims of crime— especially homicide; williams & collins, supra note 62, at 411. 64 williams & collins, supra note 62, at 410–11. residents of segregated neighborhoods are less likely to exercise due to a lack of recreation facilities and neighborhood safety. id. at 411. they are also disproportionately preyed upon by alcohol and tobacco companies who heavily advertise in poor minority communities. id at 410. food deserts and inadequate public transportation mean that a majority of residents only have access to low-quality junk food, which leads to poor nutrition, diabetes, and obesity. id. at 410–11. 65 timothy j. cunningham et al., ctrs. for disease control & prevention, vital signs: racial disparities in age-specific mortality among blacks or african-americans— united states, 1999-2015, 66 morbidity & mortality weekly rep. 444, 444 (2017). 66 williams & collins, supra note 62, at 405. 804 colum. j. race & l. [vol. 13:743 particular,67 have led to an immense increase in single-mother households among poor and working-class african americans. for example, in california in 2019, sixty-two percent of african american families were headed by single mothers.68 the poverty rate for african american singlemother households is seventy-three percent higher than african american married-couple households.69 these cash-strapped single mothers, who bear the brunt of raising low-income african american children, often spend most of their time working long hours at multiple low-wage jobs which typically do not offer parental leave or even basic benefits like healthcare and paid sick leave.70 they also spend an inordinate amount of time commuting, searching for housing, and navigating convoluted social assistance bureaucracies.71 consequently, african american single mothers are unable to devote sufficient time and money toward the intellectual stimulation of their children during critical developmental ages.72 when children spend less time talking to their parents face-to-face, have less access to thought-provoking books, enriching toys, and other stimulating activities in the home, when they make few trips, if any, to museums and libraries, they experience slow cognitive development and, thus, have less school readiness.73 by the age of four, when the brain is disproportionately receptive to stimulation, a low-income child will have heard two words for every seven spoken to a high-income child.74 lowincome kindergartners are twelve to fourteen months behind high-income kindergartners in pre-reading and language skills.75 and by first grade, middle-class first-graders have experienced 1,000-1,700 hours of one-onone reading time, whereas low-income first-graders have an average of 67 in 2006, one in every fourteen black men was incarcerated, as were one in every nine black men between twenty and thirty-five years old. michelle alexander, the new jim crow: mass incarceration in the age of colorblindness 100 (2012). african american men are nearly six times more likely to be incarcerated than white men, and african american men aged eighteen to nineteen are nearly thirteen times more likely to be incarcerated. e. ann carson, u.s. dep’t of just., prisoners in 2018, at 1, 17 (2020). 68 this figure compares to forty-nine percent of american indian, forty percent of latino, and twenty-two percent of white families that were single-parent households. children in single-parent families by race and ethnicity in california, kids count data ctr., https://datacenter.kidscount.org/data/tables/107-children-in-single-parent-familiesby-race?loc=1&loct=2#detailed/2/6/false/1729/10,11,9,12,1,185,13/431 [https://perma.cc/6wg5-aut9] (last updated dec. 2022). 69 ian rowe, the power of the two-parent home is not a myth, am. enterprise inst. (jan. 8, 2020), https://www.aei.org/articles/the-power-of-the-two-parent-home-is-not-amyth/ [https://perma.cc/mgc3-3weq]. 70 james heckman, the economics of inequality: the value of early childhood education, 35 am. educator 31, 33 (2011). 71 annie e. casey found., the first eight years: giving kids a foundation for lifetime success 6 (2013) [hereinafter first eight years]. 72 id. at 5–7. 73 id.; annie e. casey found., the 30 million word gap: the role of parentchild verbal interaction in language and literacy development 1–3 (2014) (describing the effects of quality parent-child verbal interactions on a child’s cognitive and literacy development) [hereinafter 30 million word gap]. 74 first eight years, supra note 71, at 6. 75 id. 2023] black boarding academies 805 twenty-five hours.76 intellectual stimulation at an early age is vitally important to a child’s capacity for lifetime learning. these human capital deficiencies combine with other conditions to seal the educational fate of low-income african american children. poor nutrition, exposure to home toxins such as mold and lead, undiagnosed and untreated disabilities and illnesses, frequent absenteeism, and the chronic stress of financial instability, familial strife, and dangerous neighborhoods all conspire to inhibit the academic achievement of low-income african american children.77 the result is clear beyond peradventure: these children are generally at a significant disadvantage before they ever step through the schoolhouse door. this is not the worst of it. the scholastic disadvantages poor and working-class african american children bring to school on day one are exacerbated by the quality of education offered by the schools they are forced to attend.78 these disadvantages place lowincome children in a perpetual catch-up posture throughout primary and secondary education, which lowers their prospects for a college education. in my view, the case for black reparations is strongest for this cohort.79 c. the case for prioritizing black boarding academies the initial payment of black reparations by federal and state governments should be used to finance the operation of schools designed to meet the special needs of low-income african american children. black boarding academies should be established not just to care for the most vulnerable victims of slavery and jim crow but to put them on the path to leadership positions in our society. thus, the early roll out of black reparations should be rehabilitative rather than compensatory, and monetary as well as non-monetary.80 cash and services should go to the institutions themselves and used for educating low-income black children enrolled in these institutions. the african american community rather than african americans individually is the intended beneficiary of this educational reparation. identifying bbas as the first black reparation makes eminent sense. it has long been the case that education is the key to success in our society. in 1848, horace mann, the legendary education reformer, observed that “[e]ducation, … beyond all other devices of human origin, is the great equalizer of the conditions of men, [and women]—the balance-wheel of the social machinery.”81 mann was reporting on the reality of education as much as positing a philosophy of education. from the inception of our 76 30 million word gap, supra note 73, at 2. 77 see generally fiester, supra note 62 (evaluating various factors that contribute to racial disparities in educational outcomes); annie e. casey found., race matters: unequal opportunities for school readiness 1 (2006) (describing barriers to equal educational opportunities). 78 see infra text accompanying notes 89–98. 79 other problems facing low-income families or individuals can be dealt with in subsequent rounds of reparations or outside of reparations through extant social service programs. reparations are necessarily asymmetrical measures as they go only to the victims of the atrocity. they do not negate the need for ongoing symmetrical social services on which low-income households can draw regardless of race. 80 see supra part ii.a. 81 horace mann, report for 1848, in 3 life and works of horace mann 640, 669 (mary mann ed., 1868). 806 colum. j. race & l. [vol. 13:743 country, education has played an important role in one’s ability to move up the social ladder, save, of course, the enslaved and women. born at the lower end of the socioeconomic ladder, alexander hamilton and benjamin franklin used education to climb to the top.82 it is, therefore, not difficult to understand why the naacp lawyers who fought segregation in the courts in the 1930s, 40s, and 50s started with education.83 they saw education as essential to personal success as well as racial success. quality education creates more employment opportunities, secures a higher income, builds stable and safe communities, and provides for a prosperous and happy life.84 quality education also increases mental agility and, hence, the ability to make the right decisions and spring into action when needed. in other words, it builds a type of racial agency, one that is needed today more than at any other time during this post-civil rights period. the current pushback against racial progress—from racial amnesia, avoidance, and denial to misinformation about critical race theory (crt) and systemic racism,85 to the belief, held even at the 82 see, e.g., ron chernow, alexander hamilton 4–5 (2005); benjamin franklin, the autobiography of benjamin franklin 41–42, 47–49 (1791). 83 three of the most significant victories came in missouri ex rel. gaines v. canada, 305 u.s. 337 (1938), mclaurin v. oklahoma state regents of higher education, 339 u.s. 637 (1950), and sweat v. painter, 339 u.s. 629 (1950). in gaines, the supreme court held that the state of missouri, which did not have a separate law school for african americans, must admit an african american resident of the state to its all-white law school rather than forcing the student to attend an out-of-state law school. gaines, 305 u.s. at 349–50. in mclaurin, the court held that compelling the lone black graduate student in the otherwise all-white state graduate school to sit in a section of the classroom “surrounded by a rail on which there was a sign stating, ‘reserved for colored,’” and “to sit at a designated table and to eat at a different time from the other students in the school cafeteria” offended the equal protection clause. mclaurin, 339 u.s. at 640, 642. finally, in sweat, the supreme court came closest to invalidating the separate-but-equal doctrine. the court held that the all-white university of texas law school must admit an african american student, because the state law school established for african americans was so inferior as to the quality of the facilities, education, and prestige of its faculty that it denied blacks equal educational opportunity. sweatt, 339 u.s. at 635–36. for a discussion of the naacp litigation campaign, see, e.g., roy l. brooks et al., the law of discrimination: cases and perspectives 45–74 (2011) [hereinafter brooks, law of discrimination]. 84 hence, the parental push, sometimes unethical, to get their children into the best schools. see, e.g., sophie kasakove, the college admissions scandal: where some of the defendants are now, n.y. times (oct. 9, 2021), https://www.nytimes.com/2021/10/09/us/ varsity-blues-scandal-verdict.html [https://perma.cc/e9my-s9xx]. 85 see, e.g., seth cohen, say her name: breonna taylor and america’s deadly case of racial amnesia, forbes (aug. 10, 2020, 6:09 pm), https://www.forbes.com/sites/ sethcohen/2020/08/10/say-her-name-breonna-taylor-and-americas-deadly-case-of-racialamnesia/?sh=79a8564f6caf [https://perma.cc/7yzb-zesz]; how racial amnesia helped trump win, cnn (dec. 27, 2016), https://www.cnn.com/videos/us/2016/12/27/awkwardracial-amnesia-orig.cnn [https://perma.cc/e2lv-umhr]; sarah schwartz, map: where critical race theory is under attack, educationweek, https://www.edweek.org/policypolitics/map-where-critical-race-theory-is-under-attack/2021/06 [https://perma.cc/pp57atas] (last updated mar. 23, 2023); benjamin wallace-wells, how a conservative activist invented the conflict over critical race theory, the new yorker (june 18, 2021), https://www.newyorker.com/news/annals-of-inquiry/how-a-conservative-activist-inventedthe-conflict-over-critical-race-theory [https://perma.cc/2p4z-v53a]; marisa iati, what is critical race theory, and why do republicans want to ban it in schools?, the wash. post (may 29, 2021, 8:00 am), https://www.washingtonpost.com/education/2021/05/29/criticalrace-theory-bans-schools/ [https://perma.cc/57vh-6x6l]. a widely respected conservative commentator, charlie sykes, called the attacks on crt by the right-wing media “shark attack politics,” meaning that rather than looking at data, these media organizations choose 2023] black boarding academies 807 supreme court, that race no longer matters,86 to, most alarmingly, the mainstreaming of white supremacy87—makes it imperative that the representative black voice is heard.88 low-income african american children have little access to quality education and, hence, the prospect of contributing to racial agency in the future. while brown v. board of education89 and its progeny have given black children a constitutional right to attend desegregated schools, these cases have simultaneously made it nearly impossible for black children to receive a quality education.90 consequently, the education of african american children, most especially low-income children, is “now limited by class status and neighborhood locations.”91 shockingly, “[s]chool districts where the majority of students enrolled are students of color receive $23 billion less in education funding than predominantly white school districts, despite serving the same number of students—a dramatic discrepancy that underscores the depth of k-12 funding inequities in the u.s.”92 stated to capitalize on “fear and outrage.” charlie sykes, the shark attack party, bulwark+ (june 23, 2021), https://morningshots.thebulwark.com/p/the-shark-attack-party?s=r [https://perma.cc/vp7e-5spm]. 86 see, e.g., gal et al., supra note 51 (challenging the idea that racism in the united states is over). on the belief by supreme court justices (called “traditionalists”) that race no longer matters, see roy l. brooks, the racial glass ceiling: subordination in american law and culture 39–40 (2017) [hereinafter brooks, the racial glass ceiling]. 87 stephen miller was president donald trump’s senior adviser for policy and chief speechwriter. in emails to the then-president and others, miller “advocated many of the most extreme white supremacist concepts. these included the ‘great replacement’ theory, fears of white genocide through immigration, race science, and eugenics; he also linked immigrants with crime, glorified the confederacy, and promoted the genocidal book, the camp of the saints, as a roadmap for u.s. policy. anti-semitism was the only missing white nationalist trope in the emails—perhaps unsurprisingly, as miller himself is jewish.” simon clark, how white supremacy returned to mainstream politics, cap (jul. 1, 2020), https://www.americanprogress.org/article/white-supremacy-returned-mainstream-politics/ [https://perma.cc/eu99-jbjj]. see also gene demby, when white extremism seeps into the mainstream, npr (jan. 15, 2021, 5:57 pm), https://www.npr.org/sections/codeswitch/2021/ 01/15/957421470/when-white-extremism-seeps-into-the-mainstream [https://perma.cc/dpt 3-3mdr]. 88 the black voice is not monolithic. there is a voice that is representative of african americans (the “rep”) and the one that is an outlier (the “non-rep”). for a full discussion, see roy l. brooks, diversity judgments: democratizing judicial legitimacy 39–41(2022) [hereinafter brooks, diversity judgments]. 89 347 u.s. 483 (1954). 90 the court has, inter alia, struck down race-conscious student assignment plans voluntarily adopted by school boards to integrate de facto segregated schools. parents involved in cmty. schs. v. seattle sch. dist. no. 1, 551 u.s. 701, 709–11 (2007), blocked interdistrict remedies that integrated racially isolated school districts within the state. milliken v. bradley, 418 u.s. 717, 744–48 (1974), created the untenable distinction between de jure and de facto segregation that keeps schools racially isolated. see also parents involved, 551 u.s. at 821–22 (breyer, j., dissenting). and, most importantly, san antonio independent school district v. rodriguez, 411 u.s. 1, 15–18, 36–39 (1973), upheld school financing systems that favor wealthy school districts. 91 sonya ramsey, the troubled history of american education after the brown decision, the am. historian, https://www.oah.org/tah/issues/2017/february/the-troubledhistory-of-american-education-after-the-brown-decision/ [https://perma.cc/s3nz-djxy] (last visited mar. 28, 2023). 92 lauren camera, white students get more k-12 funding than students of color: report, u.s. news (feb. 26, 2019, 12:01 am) (emphasis added), https://www.usnews.com/ news/education-news/articles/2019-02-26/white-students-get-more-k-12-funding-thanstudents-of-color-report. 808 colum. j. race & l. [vol. 13:743 differently, african american k-12 school districts receive an average of $2,226 less per student than predominantly white school districts.93 because of this funding deficit, african american school districts have fewer qualified teachers, larger teacher-to-student ratios, fewer ap classes, fewer field trips and extracurricular offerings, less equipment and classroom furniture, fewer books, overcrowding, and more dangerous environments than white school districts.94 consequently, the racial gap in learning outcomes is quite large.95 african american students have lower reading scores, math scores, school attendance, high school graduation rate, and college or career-readiness scores than white students.96 their college participation rate is also lower than that of their white peers, and only twenty percent of african american college students earn a bachelor’s degree compared to forty percent of white college students.97 these educational inequalities are deep and persistent. for decades, they have defied solutions advanced by reformers. though wellintended, these professionals have largely looked for solutions in school integration, fighting against the supreme court all the way.98 but even if the legal constraints placed on school integration were removed, quality education would still elude the vast majority of lowincome african american students. they would likely have access to a dearth of educational resources once they left school for home. it is likely that they would not have access to a high-powered computer or strong wifi signal at home. nor would they likely be able to afford the best tutors or have exposure to mainstream cultural events like visiting museums or washington, d.c. also, there would probably be little parental knowledge and flexibility for directing intellectual stimulation. most importantly, 93 gal et al., supra note 51. 94 see ivy morgan & ary amerikaner, funding gaps: an analysis of school funding equity across the u.s. and within each state, the educ. tr. (feb. 27, 2018), https://edtrust.org/resource/funding-gaps-2018/ [https://perma.cc/uvw4-k5bj]; joe w. bowers, jr., black kids deserve great schools, too, l.a. sentinel (feb. 13, 2020), https://lasentinel.net/black-kids-deserve-great-schools-too.html [https://perma.cc/2j4svtkh]; emily deruy, where calculus class isn’t an option, the atlantic (june 7, 2016), https://www.theatlantic.com/education/archive/2016/06/where-calculus-class-isnt-anoption/485987/ [https://perma.cc/vgk6-5j7b]; u.s. dep’t of educ. off. for civ. rts., data snapshot: teacher equity (2014) (evaluating racial disparities in teacher quality). 95 for one of the most important studies on this point, see david r. francis, blackwhite test scores: neighborhoods, not schools, matter most, nat’l bureau of econ. rsch. (nov. 2006), https://www.nber.org/digest/nov06/black-white-test-scores-neighborhoods-notschools-matter-most [https://perma.cc/nf5l-ct6w]. 96 gabriel petek, legis. analyst’s off., narrowing california’s k-12 student achievement gaps 1 (2020) (reporting lower test scores, graduation rates, attendance, and college readiness for low-income students); the educ. tr.-w., at a crossroads: a comprehensive picture of how african-american youth fare in los angeles county schools 1 (2013) (describing california’s “separate and unequal education system” for african-american children); the educ. tr., the state of education for african american students 3–15 (2014) (gathering national data on unequal educational opportunities for african american students in the united states). 97 the educ. tr., the state of education, supra note 96, at 11, 12; brooks, atonement and forgiveness, supra note 2, at 88–89 (describing the “large and growing racial differential in college completion rates). 98 for a discussion of the supreme court’s rejection of some of these reforms, see supra note 90. 2023] black boarding academies 809 many low-income black students live in unsafe environments, a constant distraction certainly not conducive to learning. finally, prioritizing low-income black children has strategic value. as there will likely be a constitutional challenge to black reparations,99 the supreme court ought to be presented with a sympathetic defendant— children. here one finds yet another lesson in the naacp lawyers’ campaign against segregation. focusing on children is the least controversial battleground on which to fight and has proven to be the most effective way to fight. brown v. board of education100 sparked widespread racial progress in this country. as judge louis pollak has observed: [e]ven though it was a decision about schools, [brown] became a precedent for, in the next half-dozen years, a series of supreme court decisions where they didn’t even have to write opinions, where they knocked out segregation in buses, in parks, in swimming pools and the whole array of public institutions that had been blanketed with jim crow for half a century.101 similarly, judge robert carter, the most creative of the naacp lawyers who worked on the brown v. board of education, has noted that brown changed the legal status of african americans from mere supplicants “seeking, pleading, begging to be treated as full-fledged members of the human race” to persons entitled to equal treatment under the law.102 indeed, the 1964 civil rights act, the legislation that largely brought an end to jim-crow laws,103 would not have been possible without brown as it is doubtful that a racially skittish congress would have passed a civil rights statute in contravention of the supreme court’s view about the constitution’s racial mandate. an education reparation like black boarding academies can have a major impact on the ongoing struggle for civil rights. the editorial staff of a prominent newspaper recently remarked, “[f]or decades, evidence has shown that disadvantaged students mired in poverty face huge obstacles to success.”104 steering a critical mass of lowincome african american children to the very top of society by giving them an exceptional, leadership-oriented education from a young age invests in the future of poor black children. it gives agency to a segment of the black population that even some middleand upper-income black americans are inclined to write off. changing the trajectory of these black lives can make 99 on the constitutionality of black reparations, see infra part iii.e. see also infra text accompanying note 329. 100 347 u.s. 483 (1954). 101 brooks, the racial glass ceiling, supra note 86, at 30 (discussing judge pollak’s 2004 npr interview). 102 id. (citing robert carter, the warren court and desegregation, 67 mich. l. rev. 237, 246–47 (1968)). 103 civil rights act of 1964, pub. l. no. 88-352, 78 stat. 241 (codified as at 42 u.s.c. § 1971 et seq. (2006)). 104 the san diego union-trib. ed. bd., opinion: san diego unified’s new grading policy has noble intent, but rollout raises hard, the san diego union-trib. (july 8, 2022, 6:00 am), https://www.sandiegouniontribune.com/opinion/editorials/story/2022-0708/san-diego-unified-standards-based-reform-retake-tests-homework-can-be-late [https://perma.cc/783p-ur8v]. 810 colum. j. race & l. [vol. 13:743 major advances toward racial justice in our society. this, indeed, is the promise of black boarding academies. iii. black boarding academies (bbas) an innovative way of educating african american students, black boarding academies are a network of world-class, non-profit, publicly financed, and african-american-directed pre-kindergarten to twelfth grade (“pk-12”) boarding schools designed primarily for low-income students.105 impending constitutional constraints coming from the supreme court will likely preclude the use of race-conscious admissions standards at these academies.106 this limitation on admissions is similar to the one the supreme court has placed on historically black colleges and universities (“hbcus”). thus, though identified as black institutions, hbcus cannot employ race-conscious admissions policies. in fact, approximately twentyfive percent of the students attending hbcus in 2021 were non-black.107 one way to satisfy the constitutional command is to base admission to a bba on an applicant’s connection to slavery or jim crow rather than race per se. a connection to either of these past atrocities is broadly raceneutral. however, for pragmatic reasons explained in part iii.e, bbas may have to limit admissions to students who are descendants of at least one person enslaved in the u.s. and at least one person oppressed by jim-crow laws or practices. hence, any student who meets this eligibility criterion is a qualified descendant. an applicant who identifies as latinx, native american, asian, white, or multiracial can theoretically be a qualified descendant. 105 the proposed focus is on disadvantaged students, similar to institutions such as the milton hershey school and girard college. see milton hershey school facts, milton hershey sch., https://www.mhskids.org/about/mhs-fast-facts/ [https://perma.cc/7fce5u6n] (last visited mar. 28, 2023); about: quality education for all, girard coll., https://www.girardcollege.edu/about/ [https://perma.cc/zgd8-uxps]. applicants who are not “qualified descendants,” as defined in this article, including poor, working-class, and middle-class african americans, are not eligible for admissions. 106 see infra part iii.e. 107 nat’l ctr. for educ. stat., fast facts: historically black colleges and universities, https://nces.ed.gov/fastfacts/display.asp?id=667 [https://perma.cc/up5hm5c2] (last visited mar. 28, 2023). hbcus “are institutions that were established prior to 1964 with the principal mission of educating black americans.” id. founded as jim-crow institutions, hbcus have contributed substantially to the progress of black americans by providing access to higher education in a safe and supportive environment. id. “in 2021, there were 99 hbcus located in 19 states, the district of columbia, and the u.s. virgin islands. of the 99 hbcus, 50 were public institutions and 49 were private nonprofit institutions.” id. (internal citations omitted). constituting only three percent of america’s higher education institutions, hbcus educate around ten percent of all black college students. miriam hammond et al., hbcus transforming generations: social mobility outcomes for hbcu alumni 4 (2021). see also michael l. lomax, six reasons hbcus are more important than ever, uncf (dec. 14, 2015), https://uncf.org/the-latest/6reasons-hbcus-are-more-important-than-ever [https://perma.cc/5j9u-gwa5]. on the constitutional constraints placed on hbcu admissions, see united states v. fordice, 505 u.s. 717, 742–743 (1992) (requiring the state of mississippi to take affirmative steps to integrate higher education). 2023] black boarding academies 811 establishing the requisite ancestry will be a difficult task. although federal records can help in this effort,108 low-income individuals and families will not have sufficient money, time or genealogical training to track their ancestry. this challenge is not entirely unique. in hawaii, the kamehameha schools, a network of independent schools for children with at least one native hawaiian ancestor, operates an ancestry verification program for its applicants. ho’oulu verification services enters an applicant’s name, social security number, and names of registered relatives to search a comprehensive database of the hawaiian population.109 black boarding academies could operate a similar program, perhaps employing a genealogical staff or partnering with genealogical companies such as ancestry, familysearch, or legacytree. the necessary documentation could be submitted automatically to bbas. as a practical matter, most qualified descendants will be individuals who identify in whole or in part as african american.110 for that reason, this article uses the term “african american” or “black american” rather than “qualified descendant” at certain key points throughout this article. the former terms also emphasize the racial dimensions of the educational problem bbas attempt to resolve. black reparations are meant to address the many harms african americans suffer because of their race.111 were it not for the unfortunate constitutional constraints imposed by the supreme court,112 this article would use the term “african american” or “black american” throughout. a. mission the main mission of bbas is to give qualified descendants, primarily low-income african americans, a highly participatory, leadership-oriented education on safe and supportive campuses away from cities and other distractions.113 these students will receive advantages 108 see claire kluskens, nat’l archives & recs. admin., federal records that help identify former enslaved people and slave holders (dec. 2021), https://www.archives.gov/ files/calendar/genealogy-fair/2018/2-kluskens-handout.pdf [https://perma.cc/pml6-z5zv]. 109 see ho’oulu verification services, kamehameha schs., https://www.ksbe.edu/ verification/ [https://perma.cc/ppr5-uajc] (last visited mar. 28, 2023). 110 see lizzie wade, genetic study reveals surprising ancestry of many americans, sci. (dec. 18, 2014), https://www.science.org/content/article/genetic-study-revealssurprising-ancestry-many-americans [https://perma.cc/67pn-fgm3] (finding that the average african american’s genome is 73.2 percent african, the average latino carries 6.2 percent african ancestry, and as few as four percent of european americans carry any african ancestry). 111 see supra part ii.b. 112 see infra part iii.e. 113 the basic idea is to remove students from the congeries of deprivations that plague predominantly poor or working-class african american communities, including: segregation; redlining and other discriminatory housing policies; high levels of police surveillance and brutality, arrest rates, and incarceration alongside negligible police protection from crime; high murder rates; gang activity; increased exposure to pollution and toxins such as lead; food and transportation deserts; lack of funding for basic public institutions and resources; underemployment; disincentives to businesses and investment; and so on. see williams & collins, supra note 62, at 406–12 (describing the harmful effects of racial segregation on black communities); sarah catherine williams, state-level data for understanding child welfare in the united states, child trends (feb. 28, 2022), https://www.childtrends.org/publications/state-level-data-for-understanding-child-welfare812 colum. j. race & l. [vol. 13:743 usually reserved for wealthy students who attend elite new england boarding schools. the former will also gain a deep appreciation for, and connection to, the legacy and living culture of african americans as well as other historically disadvantaged groups in the united states. each academy will recognize the true potential of their students, equip them for leadership positions in our society and then usher them to the top. the ultimate goal is to empower a critical mass of mostly low-income african american children descendant of the enslaved or the racially oppressed during jim crow to author a more equitable future for themselves and, hence, the african american community. educating a critical mass of mostly low-income african american children in this high-powered way helps the united states government to make amends for slavery and jim crow. the government moves in the direction of atoning for these past atrocities by taking tangible, measurable action to close the stubborn scholastic achievement gap separating black and white students.114 if these schools are successful in addressing this human capital deficiency, they will not only raise the level of education in the african american community, but also augment other socioeconomic metrics within this community, including income, wealth, employment, environment, health, social mobility, and nonlethal interactions with law enforcement.115 it is in this way that education is the key to success in the african american community as it is in our society as a whole.116 for that in-the-united-states [https://perma.cc/8k54-y8ga] (showing child maltreatment data by race for each state). 114 see supra section ii.b.2. 115 brown v. bd. of educ., 347 u.s. 483 (1954), has had a similar socioeconomic impact on racial disadvantage in our society writ large. see supra text accompanying notes 100–103. 116 see mineo, supra note 52 (discussing the racial wealth gap as due, in part, to educational discrimination); anna zajacova & elizabeth m. lawrence, the relationship between education and health: reducing disparities through a contextual approach, 39 ann. rev. pub. health 273, 274 (2018) (“during the past several generations, education has become the principal pathway to financial security, stable employment, and social success.”). employment and income prospects improve at each level of education. for example, the unemployment rate was nearly three times higher for individuals with a bachelor’s degree than it was for those with only a high school degree in 2017. robert c. fellmeth & jessica k. heldman, child rights & remedies 168 (clarity press, inc., atlanta, ga, 4th ed. 2019). “high skill” jobs requiring analytical abilities and postsecondary education have grown significantly over the past several decades as the number of “low skill” jobs has stalled. id. between 2021 and 2031, jobs requiring only a high school degree are projected to increase by less than three percent, jobs requiring a bachelor’s degree by 8.2 percent, jobs requiring a master’s degree by 13.6 percent, and jobs requiring a professional degree by 9.1 percent. employment projections, u.s. bureau of lab. stat. (sept. 8, 2022), https://www.bls.gov/emp/tables/education-summary.htm [https://perma.cc/e67c-pfv3]. jobs requiring no postsecondary education are not only failing to keep pace, but many are disappearing. an increasing number of middle-skill jobs that have not traditionally required postsecondary education (e.g., supervisors, administrators, secretaries, and sales representatives) are demanding a bachelor’s degree as a minimum requirement. joseph b. fuller & manjari raman, dismissed by degrees: how degree inflation is undermining u.s. competitiveness and hurting america’s middle class 2 (2017) (describing the process of “degree inflation”). the fact that these professional and management jobs have proven to be considerably more recession-proof is another reason for the likely increase in high skill jobs in the future. mineo, supra note 52. differences in income levels are just as dramatic. in 2017, an individual without a high school degree earned a median weekly income of $520 and a high school graduate earned $712. that number significantly increased with a bachelor’s degree ($1,173/week) 2023] black boarding academies 813 reason, african americans should regard black boarding academies as the most important reparation at this time.117 black boarding academies, in short, will not only focus on the three rs (three basic skills taught in schools: reading, “riting,” and “rithmetic”) but also on leadership training. students will be prepared to assume leadership positions in mainstream society as well as in the african american community. leadership training means that students must be taught to see themselves as leaders as well as understand the responsibilities of leadership.118 bbas must be structured in a way that facilitates this reparative mission. b. structure 1. prioritizing pk-3 grades initially rather than trying to offer a full pk-12 grade range at the beginning, the academies should initially limit themselves to teaching grades pk-3. additional teachers and resources could be added as needed each year to accommodate one higher grade level for the oldest group of students. for example, an academy would accept a certain number of students for each grade ranging from preschool to third grade in y1. in y2, the academy would expand to offer a fourth-grade curriculum for its y1 third grade class, and so on. though bbas will be public schools, it is worth noting that many private black schools, like w.e.b. dubois academy in louisville, kentucky, offered only lower grade levels when they first opened, then expanded to primary and secondary education. it opened with a sixth-grade class of 150 students and expanded its grade-level capacity annually as the original class progressed. two years later, the academy was teaching 450 students in grades six to eight.119 and continued to increase at each ascending degree level. a master’s degree earned $1,401/week; a doctoral degree earned $1,743/week; and a professional degree earned $1,836/week. fellmeth & heldman, supra note 116, at 168. jobs requiring a postsecondary degree were also more likely to provide employees with health insurance and pension benefits. sandy baum et al., education pays: the benefits of higher education for individuals and society 5 (2010). with higher income levels and greater financial security, individuals with postsecondary educational attainment can accumulate wealth and transfer that wealth to their descendants, creating intergenerational gains over time. educational achievement is, in fact, the single biggest predictor of african american social mobility. fiester, supra note 62, at 9. individuals with better employment prospects can afford to live (and eventually purchase homes) in better neighborhoods. they can expect better health and longer lives, are more likely to enjoy a successful long-term marriage, and have much lower chances of arrest and incarceration. see zajacova & lawrence, supra note 116, at 277; baum, supra note 116, at 10–33 (demonstrating the social benefits of education). the children of bettereducated parents are wealthier and better educated themselves, creating a multigenerational upward trajectory. zajacova & lawrence, supra note 116, at 281. 117 see supra, part ii.c. 118accomplishing these educational goals will advance the ultimate goal of black reparations—racial reconciliation see supra, part ii.a. 119 olivia krauth, jcps may extend w.e.b. dubois academy into a high school. here’s how it would work, courier j. (dec. 3, 2019, 12:38 pm), https://www.courierjournal.com/story/news/2019/12/03/jcps-could-add-high-schools-grades-web-duboisacademy/2596291001/ [https://perma.cc/pb35-gzkb]. 814 colum. j. race & l. [vol. 13:743 there are several important financial benefits to expanding up and out over time rather than immediately offering a full pk-12 range. first, a smaller school with fewer students and staff costs would require less money up front to establish and operate. more students require more of everything—staff, housing, services, and infrastructure. older students require more advanced teachers, a wider range of facilities and extracurricular activities, and a different set of rules and policies. academies would, therefore, take longer to open if they were to offer a full pk-12 program at the beginning. second, incremental growth could act as a sustainability control mechanism, allowing academies to cultivate larger reserves of assets and funding before expanding the number of academies and their operations. post-reparations funding is an issue black boarding academies as well as other reparative programs must confront.120 third, beginning with several manageably sized lower grades would make the model more attractive to potential funding sources. this is because highquality early education yields larger visible gains in student performance than remedial education with older students. prospective donors are more inclined to support a project if it looks like a good investment by the numbers. finally, building an excellent pk-elementary program would be a better investment than creating a lower-quality pk-12 program. beginning at the pk-3 level removes the most vulnerable african american children from poor and often dangerous learning environments at a critical time in their young lives. the comprehensive care and instruction these at-risk children would receive prepares them for a rigorous middle and high school curriculum. middle and high school teachers could then focus on making strong students exceptional rather than devoting their energies to remedial or behavioral matters.121 what is at stake, then, is the child’s long-term intellectual potential.122 120 see infra part iii.d.2. 121a good example of the problem black boarding academies must avoid can be seen in the experience of seed schools, a network of public charter boarding schools for lowincome middle and high school children. seed students in washington, d.c., the first established seed school, have higher reading and math scores than other african american students in the city and significantly higher college participation and graduation rates than the national average for african american students. however, “reading is still a weakness for many seed students and, not coincidentally, the school’s sat scores have been unimpressive. part of the blame, according to charles barrett adams, the head of the school, lies with the public elementary schools: students arrive at seed typically two to three grade levels behind and spend much of the next years playing catch-up.” maggie jones, the innercity prep school experience, n.y. times mag. (sept. 25, 2009), https://www.nytimes.com/2009/09/27/magazine/27boarding-t.html [https://perma.cc/4vy9h5fm]. seed students also return to their homes on weekends, which might be an option for black boarding schools. for a general discussion of seed schools, see the seed found., our network, https://www.seedfoundation.com/seed-in-action [https://perma.cc/eb5sx7k5] (last visited mar. 28, 2023). 122 univ. of tex. at austin, being poor can suppress children’s genetic potentials, study finds, sci. daily (jan. 11, 2011), https://www.sciencedaily.com/releases/2011/01/110110142004.htm [https://perma.cc/4n9rcmqk] (“[c]hildren from poorer families, who already lag behind their peers … show almost no improvements that are driven by their genetic makeup); “supportive environments and rich learning experiences generate positive epigenetic signatures that activate genetic potential . . . result[ing] in epigenetic changes that establish a foundation for more effective learning capacities in the future.” sources of influence: part iii, the truth source, https://thetruthsource.org/sources-of-influence-part-iii/ [https://perma.cc/6s7y-a39a] (last 2023] black boarding academies 815 prioritizing pk-3 students intervenes in a child’s life at just the right moment as the first eight years of life are a uniquely crucial period in a child’s development. these are the years, especially the pk years, that shape the child’s future more than any other phase of life.123 brain development is most rapid and, hence, disproportionately receptive to learning. critically, gaps in a child’s academic ability and life’s potential manifest along socioeconomic lines as early as two years of age.124 these consequences last into adulthood.125 children who receive high-quality pk care and enter school with the social, mental, and motor skills that prepare them for classroom learning are more engaged in education, learn more quickly, and, hence, are more likely to succeed educationally, professionally, and financially.126 on the other hand, children who enter school without these experiences tend to lag behind in critical skills throughout their education. they have much dimmer prospects for graduation and success in later life.127 take reading, for example. one study measured the difference between the reading tests of children from the highest and lowest socioeconomic quartiles and found a gap equivalent to approximately three to six years of learning.128 kindergarten children at low reading competence levels not only fail to catch up in later years, they fall further and further behind their peers throughout elementary school.129 early intervention is essential, as children who do not read at grade-level by the end of third grade are four times less likely to earn their high school diploma than proficient readers.130 the problem is especially serious for low-income african american children, eighty percent of whom are not proficient readers for their grade level,131 and who are more than twice as visited mar. 28, 2023). on the other hand, persistent negative experiences caused damaging chemical modifications. id. see also j. david sweatt, experience-dependent epigenetic modifications in the central nervous system, 65 biological psychiatry 191, 191 (2009) (noting the links between experience and biological psychology). 123 first eight years, supra note 71, at 1 (“what happens to children during those critical first years will determine whether their maturing brain has a sturdy foundation or a fragile one.”). 124 univ. of tex. at austin, supra note 122 (finding no difference in cognitive development between wealthy and impoverished ten-month-old children but finding a significant difference by age two). 125 heckman, supra note 70, at 34. 126 id. at 32. 127 the educ. tr.-w., supra note 96, at 13 (noting that african american students face so many various obstacles that many “disengage from school, both academically and emotionally”). 128 sean f. reardon, the widening academic achievement gap between the rich and the poor: new evidence and possible explanations, in inequality in the 21st century 177, 179 fig.28.2 (davidy grusky & jasmine hill eds., 2018) (showing a gap of over one standard deviation—representing three to six years of learning—between students at the ninetieth percentile of wealth and students at the tenth). 129 john k. mcnamara et al., a longitudinal study of kindergarten children at risk for reading disabilities: the poor really are getting poorer, 44 j. learning disabilities 421, 421 (2011). 130 donald j. hernandez, annie e. casey found., double jeopardy: how third-grade reading skills and poverty influence high school graduation 4 (2012). 131 first eight years, supra note 71, at 1. 816 colum. j. race & l. [vol. 13:743 likely as their white peers to leave school without graduating when they are not reading proficiently by the end of third grade.132 in addition to reading, other educational inequities follow these well-worn racial lines across the board. young african american children are consigned to the bottom rung of every major area of educational development.133 for example, only fourteen percent of african american third graders scored at or above the national average on math, reading, and science performance tests, compared to thirty-six percent of all united states third graders and forty-eight percent of white third graders.134 there is hope; high-quality early education does as much good for young children as its absence harms them. numerous studies have demonstrated meaningful, long-lasting benefits for participants in highly rated pk education programs. among these benefits are stronger cognitive and behavioral scores in higher grades,135 increase in the likelihood (four times more likely) of obtaining a college degree,136 and a lower likelihood of involvement in the criminal justice system.137 learning how to learn and how to think from a young age is like learning a language at a young age: it gives students an exponential advantage over children who start later because it fundamentally hardwires a young brain for these skillsets.138 starting early is important because children get better at learning and become more motivated to learn with every educational experience. in a few short years, young children in high-quality early education programs become “fluent” in the language of learning, whereas children in substandard learning environments are forever catching up. laying a solid educational foundation from the beginning is scholastically more effective than attempting to close progressively larger achievement and opportunity gaps as children age.139 finally, focusing on pk-3 academies will do the most good where it is most needed. it will save many at-risk children, catching them at an early age. indeed, black boarding academies will prioritize the most 132 hernandez, supra note 130, at 13. 133 first eight years, supra note 71, at 3 fig.1 (showing that african american third graders have lower rates of average or above average scores than all other third graders in cognitive knowledge and skills, social and emotional development, engagement in school, and physical well-being). sixty-one percent of african american third graders scored at or above average in school engagement (i.e., taking interest and participating in learning activities), compared to seventy-four percent of all third graders. id. fifty-six percent of african american third graders scored at or above average on physical well-being (i.e., maintaining a healthy weight and demonstrating excellent or very good health), compared to a national average of fifty-six percent. id. 134 id. 135 kathy sylva et al., pre-school quality and educational outcomes at age 11: low quality has little benefit, 9 j. early childhood rsch. 109, 110 (2011) (finding that higher quality care is correlated to cognitive development as well as to “higher social competence, positive skilled peer interaction, and lower levels of impulsiveness”). 136 frances a. campbell et al., adult outcomes as a function of an early childhood educational program: an abecedarian project follow-up, 48 dev. psych. 1033, 1040 (2012). 137 arthur j. reynolds et al., school-based early childhood education and age-28 well-being: effects by timing, dosage, and subgroups, 333 sci. 360, 360 (2011). 138 see sources of influence, supra note 122 (describing how “rich learning experiences” create “a foundation for more effective learning capacities in the future”). 139 fiester, supra note 62, at 15 (advocating for the prevention of “new cycles” of inequality). 2023] black boarding academies 817 vulnerable of low-income children; thus, filling an important societal need.140 2. prioritizing at-risk children family stability and close connections to supportive caretakers, community, and culture are critical to a young child’s development.141 hence, it may do more harm than good to remove young, qualified descendants from their families. but if faced with an impending placement in the foster care system, a parent, guardian or case worker may opt for an alternative placement, perhaps a bba. in writing for the california reparations task force, the california department of justice recognized the horrors of the foster care system and, hence, the need to “[a]ddress the severely disparate involvement of black families within the child welfare and foster care systems.”142 offering an alternative to foster care for children placed in foster care or in danger of entering foster care (collectively, “at-risk children”) does not pathologize black families. to the contrary, it responds to racial discrimination. it recognizes that black children are more likely than white children to be removed from their families and placed in a terrible system. to quote extensively from the interim report: scholars have found that racial discrimination exists at every stage of the child welfare process. the data show that when equally poor black and white families are compared, even where both families are considered to be at equal risk for future abuse, state agencies are more likely to remove black children from their families than white children. as of 2019, black children make up only 14 percent of american children, and yet 23 percent of children in foster care. studies have shown that this is likely not because black parents mistreat their children more often, but rather due to racist systems and poverty. in the 2015-16 school year, black students were arrested at three times the rate of white students, while only comprising 15 percent of the population in schools. this disparity widens for black girls, who make up 17 percent of the school population, but are arrested at 3.3 times the rate 140 despite the obvious importance of high-quality early education, public spending on children is lowest for young ages and is continuing to decline. see first eight years, supra note 71, at 1. 141 vilsa e. curto & roland g. fryer, the potential of urban boarding schools for the poor: evidence from seed, 32 j. lab. econ. 65, 7–71 (2014). children who are sent to boarding schools at a young age can suffer from homesickness, stress, and/or loss of support from parents and guardians. id. at 71. african american children can experience a type of identity loss called “double marginalization” when removed from their “black” communities and forced too carelessly into a culturally “white” mainstreaming environment, such as a typical predominantly white elite educational environment. id. children experiencing double marginalization can develop a hostile attitude toward academic achievement, mischaracterizing such achievement as “white.” id. academy faculty and staff must be predominantly african american to foster a love of learning and high academic achievement in african american children. this is the only way to ensure that academy students can be who they are at school and feel they have a place in the world of education. 142 interim report, supra note 5, at 21. 818 colum. j. race & l. [vol. 13:743 of white girls. meanwhile, the criminal and juvenile justice systems have intensified these harms to black families by imprisoning large numbers of black children, thereby separating black families. . . . a 2015 study ranked california among the five worst states in foster care racial disparities. black children in california make up approximately 22 percent of the foster population, while only six percent of the general child population. far higher than the national percentages. some counties in california—both urban and rural—have much higher disparities compared to the statewide average. in san francisco county, which is largely urban and has nearly 900,000 residents, the percentage of black children in foster care in 2018 was more than 25 times the rate of white children.143 efforts have been made to purge racism from the system, but to no avail.144 parents, guardians, and case workers need to have an alternative placement—bbas. to understand the significance of the bba alternative for at-risk children, one must appreciate the extent to which the foster care system is broken. most americans, including black americans, have no experience with the system. it may, therefore, be useful to discuss in greater details the foster care system, details that certainly informed the interim report’s recommendations. an ethic of care and commitment is strikingly absent from the foster care system. children in the system are generally treated very poorly. many attribute this state of affairs not to nefarious individuals but to meager funding.145 payments to foster parents, programs, and staff are frequently cut and have not kept pace with inflation.146 many children, particularly children of color, end up in unsuitable environments, such as, hotels, crowded homeless shelters, and even youth prisons.147 supervision of the care these children receive, which takes place at the state level, is quite abysmal. for example, a recent report by the u.s. department of health and human services found that california’s foster care officials were slow to investigate seventy-eight of one hundred complaints of child 143 id. at 12–13 (citations omitted). 144 hence, the need for the interim report to recommend that reparations be used, in some unspecified way, to respond to racial disparities in the foster care system. id. at 21. 145 caroline danielson & helen lee, pub. pol’y inst. of cal., foster care in california: achievements and challenges 2 (2010); off. of the assistant sec’y for plan. & evaluation, u.s. dep’t of health & hum. servs., federal foster care financing: how and why the current funding structure fails to meet the needs of the child welfare field 2 (2005) (“the current funding structure has not resulted in high quality services . . . . the financing structure has not kept pace with a changing child welfare field . . . . the result is a funding stream seriously mismatched to current program needs.”). 146 danielson & lee, supra note 145 at 2. 147 naomi schaefer riley, op-ed: good intentions are forcing foster kids into bad places, l.a. times (jan. 23, 2020, 3:00 am), https://www.latimes.com/opinion/story/2020-0123/foster-children-congregate-care-group-homes-california-continuum-of-care-act [https://perma.cc/b856-ug5w]. 2023] black boarding academies 819 abuse or neglect in foster placements, in some cases taking up to fifteen months to investigate.148 the report also found that officials failed to notify investigators of serious sexual abuse allegations and that where adequate notification was given there was no adequate follow up.149 given these circumstances, it is unsurprising that children in the foster care system have less chances for success than children outside the system. indeed, an increasing number of foster children age out of the system with uncertain futures.150 adults who spent time in foster care as children are more likely to be homelessness, struggle with addiction, and face incarceration.151 african americans who spend time in foster care are more likely to be impoverished and less likely to be employed.152 shockingly, seven out of every ten girls who age out of foster care are pregnant by age twenty-one.153 based on these facts, one would expect educational outcomes for children in foster care to be especially bleak, and they are. foster children are more likely than their non-foster peers to have academic and behavioral problems in school, experience absences or tardiness, be assigned to special education classes, and repeat a grade.154 a major contributor to these academic conditions is high mobility. many foster children move several times during the school year, often changing schools each time they move. as a result, children miss large parts of the school year, lose academic credits, must repeat classes, and have incomplete education and attendance records or missing transcripts. for these reasons, many fall farther and farther behind in school over time.155 thus, 148 kaiser health news, california earns poor marks on monitoring the welfare of foster children, l.a. daily news (sept. 28, 2017, 7:14 am), https://www.dailynews.com/ 2017/09/28/california-earns-poor-marks-on-monitoring-the-welfare-of-foster-children/ [https://perma.cc/wz85-ankc]. 149 id. to repair a deeply flawed foster care system, california has recently spearheaded a nationwide movement of prioritizing family placements while defunding residential congregate-care homes. the latter (group care institutions and residential treatment facilities) have received a good deal of bad press, in some cases justly. bethany lee & rick p. barth, residential education: an emerging resource for improving educational outcomes for youth in foster care?, 31 child. & youth servs. rev. 155, 155 (2008). however, group care options are not uniform in quality or outcomes. a recent survey of former children of one orphanage found that only 2.3% of alumni had a negative experience there, while eighty-five percent reviewed it very favorably and showed better outcomes in education, employment, income, criminal activity, and health than the general population. riley, supra note 147. done right, congregate residential settings can be an especially positive environment for children who need a stable home and a reliable, supportive social environment. however, whether family or congregate, the quality of foster care depends in large part on the quality of spending and the quality of oversight. 150 danielson & lee, supra note 145, at 2. 151 toni watt & seoyoun kim, race/ethnicity and foster youth outcomes: an examination of disproportionality using the national youth in transition database, 102 child. & youth servs. rev. 251, 252 (2019). 152 jennifer l. hook & mark e. courtney, employment outcomes of former foster youth as young adults: the importance of human, personal, and social capital, 33 child. & youth servs. rev. 1855, 1857 (2011). 153 jim casey youth opportunities initiative, issue brief: cost avoidance: the business case for investing in youth aging out of foster care 5 (2013) [hereinafter cost avoidance]. 154 andrea zetlin et al., problems and solutions to improving education services for children in foster care, 48 preventing sch. failure 31, 31–32 (2004). 155 id. at 32. 820 colum. j. race & l. [vol. 13:743 although seventy percent of foster children want to attend college and half aspire to earn a master’s degree, twenty-three percent neither graduate from high school nor earn a ged; this is more than twice the national average for non-foster children.156 furthermore, only twenty percent of foster children who graduate from high school attend college, and only two to nine percent of that group earns a bachelor’s degree.157 as the interim report indicates, african american children are disproportionately represented in the foster care system both nationally and in california. while the report explains this racial disparity by pointing to the fact that child welfare agencies disproportionately target african american families for investigation and child removal, it fails to mention another reason scholars have identified—child abuse or neglect. high abuse and neglect rates correlate to high poverty for every ethnic group.158 there is, however, a racial component at play here. the african american poverty rate is three times the rate for whites.159 three times as much poverty means three times the circumstances that can trigger child removal—low-birth-weight babies, infant mortality, unemployment, substance abuse, physical and mental illness, and violence.160 clearly, at-risk african american children can benefit the most from black boarding academies.161 bbas can give this cohort of acutely disadvantaged children precisely what they need most at a critical juncture in their development: a safe, stable, communal environment with roundthe-clock attention from experts in young child care; excellent nutrition and comprehensive physical and (trauma-informed) psychological healthcare; intellectual, emotional and social development through dormitory living and group-centered activities; and an exceptional leadership-oriented 156 lee & barth, supra note 149, at 156–57. 157 annie e. casey found., youth in foster care share their school experiences 2 (2014). 158 watt & kim, supra note 151, at 252. 159 id. 160 id. at 251–52; see also alan j. dettlaff et al., disentangling substantiation: the influence of race, income, and risk on the substantiation decision in child welfare, 33 child. & youth servs. rev. 1630, 1630 (2011) (exploring “the relationship between poverty and child maltreatment”). 161 for those moved only by numbers, it should be noted that bbas offer a better use of societal resources for young at-risk children than the current foster care system. for example, in 2018, california’s foster care system spent over $2 billion. child trends, child welfare agency spending in california in sfy 2018 (2021). this amounted to about $39,000 spent per child. children in foster care in the united states, kids count data ctr., https://datacenter.kidscount.org/data/tables/6243-children-in-foster-care?loc=1&loct= 1#detailed/2/2-53/true/37/any/12987 [https://perma.cc/54qh-n8vn] (last updated apr. 2022) (showing a total of 52,337 children in foster care in california in 2018). this amount is over $10,000 more than the annual per student expenditure at a seed boarding. the seed found., 2021 annual report: celebrating firsts 7, 26 (2021) (showing total expenses of $32,342,532 in 2021 for 1,410 students) [hereinafter 2021 annual report]. if every foster child in the united states graduated from high school at the same rate as non-foster children, their average annual income would be approximately $61 million higher than it is now. cost avoidance, supra note 153, at 6. lowering the number of unplanned teenage pregnancies to non-foster levels will save society at least $250 million annually. id. at 8. finally, reducing the number of young adults involved in the criminal justice system to non-foster levels will save at least $5.2 billion in one cohort year. id. at 9. 2023] black boarding academies 821 education that will not only eliminate achievement gaps, but also help young academy students excel beyond other children in their age group.162 3. administrators african americans will make the macro-level managerial decisions regarding the academy’s mission statement, organizational standards, projects, resource allocations, hiring of high-level staff such as superintendents and fundraising czars, and, of course, teachers. though the leadership of the black boarding academies should be predominantly african american, the selection criteria must be racially neutral to sidestep the constitutional briar patch.163 perhaps the best way to reconcile these conflicting imperatives is to select administrators based on their connection to slavery and jim crow, similar to the selection of the student body.164 hence, school administrators, or at least most of them, should be descendants of at least one person enslaved in the united states and at least one person oppressed by jim-crow laws. such persons can be referred to as “qualified administrators” or “qualified leaders.”165 it may, however, be necessary to hire non-black american administrators if not enough excellent qualified leaders are available. indeed, it may be desirable to do so for the sake of diversity.166 ideally, the academy executive boards should consist of a coalition of african american community leaders, parents, education organizations, and other stakeholders.167 there are many reasons why african americans and not others should manage black boarding academies. the most important reason relates to the reparative mission itself. to be meaningful, reparations should be supportive of black agency. they should seek to empower the african american community and increase its autonomy. too often, african american parents, teachers, and communities have no consequential influence over the ways in which the education system treats their children or what it teaches them. as a result, african american parents have not been able to shape their children’s future. nothing demonstrates this point more clearly than the appallingly disproportionate levels of extreme disciplinary action often taken against african american students for minor violations of school rules. a department of education study of schools serving about eighty-five percent of the nation’s students shows 162 for a discussion of leadership-oriented education, see infra part iii.b.5. black boarding academies will not seek to replace or sever young students’ connection to their families. rather, the academies will help strengthen these bonds in several ways. teachers and administrators will work hard to keep parents and guardians involved in their child’s life and education by scheduling regular phone and video chats between parent and child, remote parent-teacher conferences, livestreaming activities and performances, setting up oncampus visiting days, and coordinating off-campus home visits during holidays or for emergencies. struggling parents will benefit immensely from the excellent, cost-free childcare and education their children would not otherwise receive. 163 see infra part iii.e. 164 see supra text accompanying notes 107–110. 165 this term tracks the definition of a “qualified descendant.” see supra, text accompanying notes 107–108. 166 diversity in general is acceptable as long bbas do not compromise the academies’ mission discussed in part iii.a, supra. 167 see teach plus & ctr. for black educator dev., to be who we are: black teachers on creating affirming school cultures 31 (2021) (discussing the stakeholders in creating diverse communities in schools) [hereinafter to be who we are]. 822 colum. j. race & l. [vol. 13:743 that, although black students comprise only eighteen percent of the students enrolled in the schools sampled, they accounted for “35 percent of those suspended once, 46 percent of those suspended more than once and 39 percent of all expulsions. . . . over all, black students were three and a half times as likely to be suspended or expelled than their white peers.”168 in addition, african american children are significantly more likely to be arrested and face criminal consequences.169 for example, after being called to the school by administrators, a police officer arrested a six-year-old girl in a georgia elementary school for throwing a tantrum. she was handcuffed, driven to a police station in a squad car, and charged with battery and criminal damage to property.170 children tend to fulfill the expectations of adults around them, and many administrators running our public schools expect african american children to fail so badly that they believe police action is proper for what would otherwise be considered a minor, child-appropriate infraction. academies must be run by adults who expect nothing short of personal and academic excellence from their students. a recent study of the sixteen highest-performing majority african american public schools in california confirmed the importance of autonomous african american leadership in educating black students. fifteen of these schools were founded and led by african americans.171 administrators and teachers at all sixteen schools demonstrated confidence in their students’ ability to succeed and a commitment to realizing that goal.172 administrators and teachers at this school also played an important role in inspiring students, encouraging parental involvement in children’s education, and engaging the community’s support.173 finally, academy students should be surrounded by african american role models. the arc of a student life is rarely discernible within the moment. surrounded by successful individuals who look like them, african american students will be able to envision themselves in similar positions of leadership and authority within their communities. african american teachers are especially important role models.174 their presence in the classroom signals to students a sense of belonging and an expectation 168 tamar lewin, black students face more discipline, data suggests, n.y. times (mar. 6, 2012), https://www.nytimes.com/2012/03/06/education/black-students-face-moreharsh-discipline-data-shows.html [https://perma.cc/w888-cyxk]. 169 sophia kerby, the top 10 most startling facts about people of color and criminal justice in the united states, ctr. for am. progress (mar. 13, 2012), https://www.americanprogress.org/article/the-top-10-most-startling-facts-about-people-ofcolor-and-criminal-justice-in-the-united-states/ [https://perma.cc/8vks-4msp] (“african american youth have higher rates of juvenile incarceration and are more likely to be sentenced to adult prison.”). 170 antoinette campbell, police handcuff 6-year-old student in georgia, cnn (apr. 17, 2012), https://www.cnn.com/2012/04/17/justice/georgia-student-handcuffed/ [https://perma.cc/dz7d-g9s3]. 171 rex & margaret fortune sch. of educ. & nat’l action network, african american leaders hold the roadmap to black student achievement 2 (2020). 172 id. at 8. 173 id. at 7–8. 174 to be who we are, supra note 167, at 2, 31 (highlighting the importance of african american teachers to black students’ success). 2023] black boarding academies 823 of fair, compassion, and respectful treatment.175 it is not surprising, then, that under the tutelage of african american teachers, african american students’ standardized test scores and college aspirations improve, they have fewer disciplinary problems, and they are less likely to drop out of high school.176 african american teachers can create an affirming, motivating learning environment by making meaningful connections between course material and students’ cultural identity, lived experiences, and real-world events.177 they can tailor their teaching to african american student strengths, needs, and learning styles.178 they can make african american culture a central part of the curriculum and do so in a personal way by telling stories from their own lives.179 this will make students feel welcome in academic and professional worlds that often feel alienating and inaccessible.180 4. teachers teacher quality may be the single most important factor in nurturing student learning. highly effective teachers produce average learning gains of fifty-three percentile points in a school year, compared to just fourteen percentile points for less effective teachers.181 in one study, having ineffective teachers year after year actually decreased student reading scores by eighteen percentage points and math scores by thirty percentile points.182 on the other hand, highly effective teachers typically have advanced verbal and math skills as well as expertise in their subjects.183 african american students are significantly less likely than white students (even low-income white children) to be taught by highly effective teachers.184 in fact, predominantly african american schools are magnets for the country’s least qualified and least experienced teachers.185 doing nothing more than providing african american students with teachers of the same quality as white students would erase about half of the academic achievement gap; if schools assigned the best teachers to african american 175 see, e.g., richard h. milner, the promise of black teachers’ success with black students, 20 j. educ. founds. 89, 100–01 (2006) (describing how black teachers’ cultural knowledge encourages black students’ success and positive educational experiences); shareefah mason, i had a teacher who looked like me, tribtalk (oct. 7, 2019), https://www.tribtalk.org/2019/10/07/i-had-a-teacher-who-looked-like-me/ [https://perma.cc/r5vk-llc9] (“[h]aving teachers who looked like me enhanced my educational experience exponentially.”). 176 to be who we are, supra note 167, at 2–3. 177 see id. at 20 (advocating for teachers and curriculums that “elevate and embed students’ social and emotional development as part of their learning experience”). 178 see janice hale, learning styles of african american children: instructional implications, 5 j. curriculum & teaching 109, 110–15 (2016) (describing dominant learning styles of african american children in literacy, mathematics, and science). 179 imagine a united states history class that begins in africa rather than england, for example. 180 to be who we are, supra note 167, at 3, 6. 181 kati haycock, the educ. tr., good teaching matters: how wellqualified teachers can close the gap, 3 thinking k-16, at 3 (1998). 182 id. at 4–5. 183 id. at 6. 184 id. at 7. 185 id. at 10. 824 colum. j. race & l. [vol. 13:743 students, the academic achievement gap would likely disappear entirely.186 if such progress is possible in disadvantaged public-school districts, imagine what top teachers in world-class boarding academies could do. not only excellent teachers but black teachers. bba students should be surrounded by as many african american role models as possible.187 in the company of successful individuals who look like them, bba students will be able to envision themselves in similar positions of leadership within and beyond their communities. they will imbibe a sense of hope for the future, an understanding that the arc of any student’s life is rarely discernible within the moment no matter the setback.188 given the importance of teachers, baas will have to devote a substantial amount of their resources attracting top teachers, especially, consistent with constitutional standards, black teachers. the government could help academies attract and retain excellent teachers by offering incentives such as loan forgiveness, reduced loan repayments, service scholarships, on-the-job certification programs, and reimbursements of relocation expenses.189 administrators must follow up these benefits by nurturing a culture of respect and solidarity among faculty and staff. this requires paying attention to the physical side of the job (such as maintaining small teacher-to-student ratios190) as well as the emotional side (such as reminding teachers that they are making a difference in students’ lives every day). academy teachers will have teaching credentials. they will have a teaching degree and certification, either a state certification or an acceptable alternative certification designed for professionals from other career areas.191 in addition, they will be highly qualified to teach within a particular subject area. elementary grade teachers will have at least a bachelor’s degree in their general subject area (e.g., a teacher with a bachelor’s in biology could teach elementary science classes), and middle and high school teachers will have at least a master’s degree.192 above all, academy teachers will have a particular persona. they will share the academy’s conviction that all students have boundless potential and that a teacher’s job is to give it wings. they will do simple, obvious things when a student struggles emotionally. they will come to class each day prepared to be amazed and delighted by how much their 186 id. at 2. 187 african american teachers are increasingly underrepresented in the profession due to historical inequities and higher turnover rates. see to be who we are, supra note 167, at 2. 188 see supra text accompanying 171–179. 189 see teach plus, the educ. tr., if you listen, we will stay: why teachers of color leave and how to disrupt teacher turnover 27 (2019). 190 lowering class size from twenty-four to sixteen students, for example, raises student math and reading scores nearly as much as improving teacher quality. curto & fryer, supra note 141, at 84. 191 haycock, supra note 181, at 13 (referring to the large number of highly effective teachers in “alternate certification programs that cater to young or mid-career professionals from other fields”). 192 it might also be a good idea for high school teachers to have a doctorate degree or significant professional experience in their area of expertise in addition to a master’s degree. 2023] black boarding academies 825 students can do. and they will implement a curriculum that is oriented toward leadership. 5. pedagogy specific names of the courses taught at black boarding academies are less important than the pedagogy that animates teaching schoolwide. this pedagogy, call it “leadership-oriented teaching,” is the hallmark of the top new england boarding academies.193 exposure to this instructional model will provide qualified descendants with an elite educational experience ordinarily reserved for the nation’s most privileged families.194 changes to the pedagogy will, however, have to be made to turn the academies into racially literate communities that can accommodate black lives.195 a. the elite model passively absorbing information, rote memorization, non-analytical thinking. there is little substantive, inquiry-based engagement with complex material or dialogue between teachers and students in that type of pedagogy. students do not learn how to ask good questions or find reliable answers to those questions. they do not learn to argue or negotiate. this is the pedagogy of the oppressed.196 it is not the pedagogy of the future leader taught at elite boarding schools.197 at elite boarding schools, students advance beyond learning how the world is to learning to ask why the world is that way. they learn to identify patterns of causation across events and critically evaluate competing explanations. they learn to formulate and test hypotheses and 193 these boarding academies include phillips academy andover, phillips exeter, and deerfield. see get to know us, andover, https://www.andover.edu/about [https://perma.cc/68uw-6nlc] (last visited mar. 28, 2023) (describing the academy’s efforts to promote “intellectual curiosity, engagement, leadership, and service”); the exeter difference. be inspired by a purpose-driven education, phillips exeter acad., https://www.exeter.edu/exeter-difference [https://perma.cc/mev6-3ztb] (last visited mar. 28, 2023) (noting the academy’s focus on “intellectual creativity and independence while celebrating good citizenship and empathy as a way of life”); about deerfield, deerfield, https://deerfield.edu/about/ [https://perma.cc/9bnn-2k4y] (last visited mar. 28, 2023) (declaring the academy’s commitment to “high standards of scholarship, citizenship, and personal responsibility”). 194 i am indebted to my research assistant, kristen gilleon, for much of the information about the new england boarding school experience as it comes from her firsthand knowledge. she is a graduate of phillips academy andover. ms. gilleon grew up on a cattle ranch in rural montana where she attended a small, low-income public school until grade nine. in grade ten, she was offered a full financial aid scholarship to phillips academy andover. she survived an extreme learning curve similar to what qualified descendants will have to do at black boarding academies. 195 african american students who have attended elite boarding schools have had uneven experiences. basically ignored by other students, except for their race, many of these students report a lonely existence. yet some report developing deep friendships and most found the education to be an enormous boost to their careers. see kendra james, admissions: a memoir of surviving boarding school (2022). 196 see paulo freire, pedagogy of the oppressed 49 (myra ramos trans., 2005) (noting that “what characterizes the oppressed is their subordination to the consciousness of the master”). 197 see patrick j. finn, preparing for power in elite boarding schools and in working-class schools, 51 theory into practice 57, 58 (2012) (“elite boarding schools are intended to produce america’s power elite”) (internal citations omitted). 826 colum. j. race & l. [vol. 13:743 find reliable answers. students become creators and sources of knowledge, rather than passive recipients of information. a good student is a good analyst. a good student learns to ask, “how should the world be changed?” they learn to imagine and innovate, to design strategies and think of ways to implement them. their stance moves beyond reaction and toward active participation—toward creation. they begin to focus on changing the world to suit their own values and interests rather than changing themselves to suit the world. a good student is a good strategist—a good designer.198 though learning to be a good analyst and strategist are necessary components of a leadership pedagogy, they are not sufficient. students must also imbibe the expectation of being a difference-maker and be wellequipped to execute. elite boarding schools provide students with a toolbox that empowers them to effectuate change. the most important tools in this toolbox are leadership mindset and leadership skills. leadership mindset is confidence that one will occupy a position of power and importance and be good at it. this mindset starts externally; it comes from the administrators and teachers. the academies wholeheartedly believe their students will be running the “show” one day, and constantly communicate to their students—both implicitly and explicitly—that they are brilliant, strong, innovative, and needed. students come to feel that they will rise to the top and hold power, and that the best and most capable have a responsibility to take the reins, to use their power to make the world what it ought to be. this “duty to prevail”199 is the lifeblood of top-rung students. being a leader in society and in one’s own community is not so much an aspiration as it is an expectation. students attending top-rung academies believe this message because the instructional model from which they are taught teaches this to them. the school’s pedagogy allows students to prove it to themselves and, in so doing, build confidence. using a teaching style that is dialectic and investigative, teachers convey respect for their students as moral and intellectual equals and full confidence in their abilities. basically, the teacher covers the foundational information students will need to know and then poses a hard question or complicated problem (ideally one the teacher does not already have an answer to). the class then approaches the challenge together as a team. the teacher does not only teach, but they also learn from students through mutual exploration and constant dialogue. students are not passive recipients of knowledge, but rather “critical coinvestigators,” meaning they actively contribute to collective progress.200 everyone is responsible for collective problem-solving and identifying the person with the best explanations, ideas or solutions. this process gives 198 this pedagogy of strategizing and designing translates to the workplace quite well. “design-led companies such as apple, pepsi, procter & gamble and sap have outperformed the s&p 500 over a 10-year period by an extraordinary 211%.” linda naiman, design thinking as a strategy for innovation, the european business rev. (may 20, 2019), https://www.europeanbusinessreview.com/design-thinking-as-a-strategy-for-innovation/ [https://perma.cc/r84d-4kmj]. 199 finn, supra note 197, at 58. 200 freire, supra note 196, at 81. 2023] black boarding academies 827 every student the opportunity to lead the class and influence the direction in which the class is moving. as a result, students not only learn that knowledge is power, but also discover what they can do with knowledge and intelligence. students at top-rung schools become confident in their leadership ability. they take enthusiastic ownership of their intellectual growth. leadership skills, the other shinning tool in the toolbox, inculcate in students a portfolio of abilities that empower them as changemakers. the first is argumentation and persuasion. teachers expect students to question information and critically assess the source. they encourage students to challenge arguments by unearthing hidden assumptions, locating logical errors, identifying inconsistencies, suggesting counterexamples, and testing propositions against facts and hypotheticals. students also learn to develop their own arguments, marshal supportive evidence and reasoning, and anticipate counterarguments.201 in addition, students learn how to make their arguments and proposals persuasive. this requires understanding the particular needs, motivations, and concerns of one’s audience. students learn how to use this information to make their own ideas appealing to that audience. for example, elite schools often allow their students some leeway in breaking rules if they are able to talk themselves out of trouble with “wit and style.”202 to put it simply, toprung schools teach their students not only critical thinking but the art of influence. realpolitik—a realistic understanding of why things happen in the world and how to get things done—is taught as a leadership skill. it might also be called “shrewdness.” most k-12 public schools, whether predominantly white or black, are woefully deficient in this respect. the absence of exposure to this skill stunts the students’ growth as active, informed citizens. as curricula at these schools have become increasingly narrow in recent years, they have prioritized math and literacy, while subjects like history, social studies, and citizenship education have been crowded out.203 many schools that still take the time to teach these subjects have largely fallen in line with united states department of education history and civic education initiatives designed to teach students that, “america is a force for good in the world, bringing hope and freedom to other people.”204 these schools emphasize personal virtues like charity, loyalty, and obedience, or focus on the mere mechanics of legislatures and government.205 curricula structured in this way offer mythologized explanations of real-world events, such as “great man” theories of history that combine fatalism with an overemphasis on ethical properties as causal mechanisms (e.g., goodness, meritocracy, justice, freedom, superiority, and 201 see finn, supra note 197, at 58 (describing “essay-text literacy,” meaning “the ability to read, evaluate, analyze, and synthesize written texts”). 202 id. 203 joel westheimer, no child left thinking: democracy at risk in american schools, 3 educ. & pol. 12, 12 (2008); see also hunter railey & jan brennan, 50-state comparison: civic education, educ. comm’n of the states 1 (2016) (“the majority of states do not include civics, social studies or citizenship in their education accountability systems.”). 204 westheimer, supra note 203, at 12 (internal citations omitted). 205 id. at 14. 828 colum. j. race & l. [vol. 13:743 specialness).206 school programs that claim to teach “good citizenship” tend to equate this with listening to authority figures, following rules, working hard, being clean and on time, being nice to neighbors, and donating time and money to charity.207 very few schools teach children to critically evaluate existing norms and institutions or think about ways to address the root causes of inequity.208 in contrast, top-rung students learn to construct realistic causal accounts of human society. they are taught to consider individual factors such as motives, expectations, and economic/political pressure, and to examine the historical and cultural context in which events occur. thus, rather than focusing solely on discrete individual actions, top-rung students are able to understand events as complex, systemic, emergent properties of interacting forces, contingencies, and actions. teachers discuss heavily mythologized topics about active political participation (e.g., martin luther king, jr. and the civil rights movement) in terms of practical strategy: what specifically did this group hope to accomplish through a particular action, what worked, and why? students, thus, learn to critically evaluate present and past events and institutions from the perspectives of multiple worldviews and interest groups. instead of passively accepting ideology, norms, and rhetoric, top-rung students immediately ask whose interest an argument serves. these students are filled with a sense of efficacy rather than resignation. they have strong counterfactual imaginations and understand that everyone and everything exists within a world that is always changing, and always changeable. nothing is inevitable. intelligent, organized action can turn the tide. another item in the skills portfolio is cultural capital; specifically, a familiarity and facility with traditional “high culture” that facilitates social mobility. subjects of traditional cultural capital include art, music, dance, literature, theater, history, philosophy, travel, proper diction, and so on.209 students at top-rung schools acquire cultural capital through advanced course offerings supplemented by an expansive range of extracurricular options.210 cultural capital is an important asset that allows students to stroll through doors that remain locked for others. students are taught that it is still very much the case that being able to make a confident, well-timed reference to velazquez or shakespeare, for example, sends a powerful signal to high-status individuals. it says, “i belong in the club.” students are admonished that this is a reality that should not be ignored.211 206 see id. at 12–13 (discussing efforts to define historical “fact” and forbid teaching history through any other lens). 207 id. at 14. 208 id. 209 finn, supra note 197, at 58. 210 id. 211 see, e.g., linda m. burton & whitney welsh, inequality and opportunity: the role of exclusion, social capital, and generic social processes in upward mobility 4 (2015) (“[t]he social networks through which social capital flows develop in accordance with the homophily principle, which states that similar people are more likely to interact with each other than dissimilar people.”) bbas will adapt this elite instructional model to the black experience. see infra part iii.b.5.b. 2023] black boarding academies 829 students who attend top-rung schools are automatically connected to a large staff and alumni network full of successful, powerful people. this network gives graduates a behind-the-scenes knowledge of how power is exercised, tips about unadvertised jobs, insider information about employers, access to significant personal recommendations, and, in some instances, the advantage of being able to bypass the application process and simply walk into a job.212 the social connections top-rung students enjoy allows them not just to get by, but also to get ahead. b. inculcating racial sensibility although black boarding academies should strive to replicate the pedagogy taught at superior boarding academies, several important modifications will have to be made in deference to the reparative purpose.213 the country’s most elite schools have a long history of preserving white wealth and privilege rooted in racial and economic inequity. their leadership-oriented instructional model has largely served to reproduce this problematic status quo.214 it would be a sad perversion of the intent and spirit of reparations to uncritically foist this educational model onto qualified descendant children or expect it to empower the african american community in toto. black boarding academies must, therefore, design their leadership-oriented pedagogy with an emphasis on the black ethos. this pedagogy teaches many specific lessons that are attentive to racial and other domains of inequity. these lessons include understanding the causes of inequity, the importance of designing realistic strategies to address inequity at its roots, and the necessity of working together in solidarity to make a concrete difference in the lives of real people, and vigilance against baked-in myths of meritocracy, entitlement, and superiority that pervade some elite institutions. students will also be taught that while everyone has potential, not everyone has opportunities, and that, therefore, they should appreciate the opportunities afforded them. in short, students will learn that “leadership” means following in the footsteps of african american heroes like frederick douglas, ida b. wells, malcom x, martin luther king, barbara jordan, and thurgood marshall. upon graduation, academy students should feel uniquely qualified to be this type of leader. in addition to embracing the black ethos, the pedagogy taught at bbas must incorporate active learning, which is learning that is teacherguided but student-driven. following the new england prep school model, teachers must select complex and complicated subjects to engage, pose difficult questions about these subjects, and allow students to engage in dialogues with their teachers and classmates as they evaluate different methodologies and answers. knowledge is not to be handed to students 212 see robert e. lang & steven p. hornburg, what is social capital and why is it important to public policy?, 9 hous. pol’y debate 1, 10–12 (1998). 213 see supra part ii.b. 214 see peter w. cookson & caroline h. persell, english and american residential secondary schools: a comparative study of the reproduction of social elites, 29 compar. educ. rev. 283, 284 (1985) (discussing “the discovery that schools tend to reinforce the status quo”). 830 colum. j. race & l. [vol. 13:743 from unvetted sources. rather, students must learn that the only way to know something reliably is through constant critical questioning and investigation. and the more often this investigation can be project-based, the better.215 students who are challenged to design, test, and produce emerge with a much deeper, more functional understanding of the material. this ability to think and relate to a diverse society will give academy students a well-rounded education. they will not graduate as educated fools, educated in the three rs but ignorant of the human condition. academy graduates will have a skillset that will enable them to act as leaders both in the african american community and in society writ large.216 6. extracurriculars, counseling, and mentors extracurriculars are important because children learn and mature as much outside the classroom as they do inside it. black boarding academies should follow the example of elite new england boarding academies, which make extracurricular activities a priority. at phillips exeter academy, for example, students can participate in over 125 studentrun clubs. these organizations and activities are wide-ranging. they include: architecture club; astronomy club; amnesty international; archaeology and history club; chess club; community kitchen volunteers; culinary appreciation club; dj factory; elementary teachers aides; entrepreneurship club; environmental action group; film makers society; gender and sexuality alliance; gospel choir; model un; modern engineering forum; oxfam; magazines, journals, newspapers, and radio stations; quiz bowl; real world challenge aeronautics; robotics club; sis female empowerment program; sketch comedy writing club; unicef; word slam poetry club; vocal/music groups; and a range of culture/language clubs. in addition to offering the full range of interscholastic sports for students, andover students can also take ballroom dancing, fencing, hip hop dancing, swimming, outdoor skills, tennis, ping pong, ice skating, volleyball, and yoga among others.217 as in the case of pedagogy, extracurricular offerings at black boarding academies should take every opportunity to engage the black ethos. student-directed clubs and organizations should be rooted in 215 see lucas educ. rsch., george lucas educ. found., the evidence is clear: rigorous project-based learning is an effective lever for student success 1 (2021) (“four newly released peer-reviewed research studies show that using rigorous project-based learning in u.s. public schools has strong and positive effects on student outcomes across grades and subjects.”). 216 this person—the change-agent persona—includes the use of critical thinking to challenge the relentless pushback against racial progress. see supra text accompanying notes 84–87. 217 see, e.g., student activities and leadership, andover, use https://www.andover. edu/living/student-activities [https://perma.cc/47dk-qr72] (last visited mar. 28, 2023); phillips academy andover, boarding sch. rev., https://www.boardingschoolreview.com/ phillips-academy-andover-profile [https://perma.cc/sx24-vn6u] (last visited mar. 28, 2023); andover athletics, https://athletics.andover.edu/ [https://perma.cc/y7fc-snj8] (last visited mar. 28, 2023). 2023] black boarding academies 831 community service and involvement in the black community. extracurricular activities may also provide opportunities to host expertsin-residence or visiting instructors for special workshops and electives. archaeological excavations of nearby historic sites, community gardens, african american music and dance should be included. these activities will help to make black boarding academies the loci of african american community empowerment. academies must do more than give their students an outstanding, culturally enriched pk-12 education. they must also work with students individually to ensure admission to, and success in, top colleges and universities. with a ninety-eight percent african american student body, the seed schools,218 have developed an intensive college preparation and advising program tailored to low-income minority students.219 the seed college transition & success program assists students with college application readiness through act and sat training, resume and personal statement assistance, and more. this program also matches students with a list of seed-endorsed colleges, which have high graduation rates for underrepresented students, affordable financial aid packages, and highquality student support.220 counselors stay in touch with students throughout their college years, helping them resolve unexpected difficulties that can become overwhelming, such as student debt and housing issues.221 academies could use a model similar to seed’s that encourages students to aim for ivy league universities and liberal arts colleges, and to seek merit scholarships in addition to loans for financial aid. devoting attention and resources to intensive, individualized college counseling that lasts through graduation would certainly increase african american participation in higher education.222 black boarding academies will connect each student with a personal mentor throughout the course of their entire education. mentors will be professionally successful adults outside the academies who are committed to giving disadvantaged children the encouragement, assistance, exposure, connections, and experiences needed to excel in school and beyond. mentors might be judges, doctors, artists, authors, scientists, engineers, professors and teachers, business owners, philanthropists, and other successful individuals. they will act as special advocates for their mentees and introduce them to a range of professional paths and opportunities that might otherwise be unknown or alienating to them. mentors will also arrange internships and interviews as well as help build a network of personal and professional relationships that can open 218 for a discussion and critique of these college-oriented urban boarding schools designed for disadvantaged middle and high school students, see supra note 121. 219 see the seed found., seed college transition & success program 2 (describing the seed foundation’s efforts to prepare students for college, aid students with college selection, and ensure students’ college graduation) [hereinafter seed college transition & success program]; seed’s college transition & success (cts) program, the seed found., https://www.seedfoundation.com/collegesuccess [https://perma.cc/p88uvpm3] (last visited mar. 28, 2023). 220 seed college transition & success program, supra note 219, at 6. 221 id. at 5. 222 the paucity of low-income african americans attending college is a problem that black reparations should try to address. 832 colum. j. race & l. [vol. 13:743 doors to positions of esteem and leadership in ways that affluent white families are able to do. underscoring the importance of mentoring, the equal employment opportunity commission (eeoc) found that african americans suffer in the labor market from having fewer networking opportunities than other groups.223 connections build key pathways to jobs (especially unadvertised), promotions, and higher salaries. they also help mentees build their professional skills and learn how to stand out from other applicants.224 mentors can be of any race. they need only be committed to racial progress and understanding of the needs and challenges facing low-income qualified descendants. african american mentors are more likely than any other group to satisfy these requirements. in addition, when african american mentors come from fields in which african americans are severely underrepresented—e.g., law, executives, investment bankers, and stem—they give african american mentees reason to strive for positions in these fields.225 for this reason, as many mentors as possible should be african american. c. living 1. full-time boarding it is critical that the academies board students full-time. full-time boarding is essential to the academic success of african american children, especially low-income children. the academic underperformance of african american children can largely be traced to the many negative influences within their home environment.226 african american children living in dysfunctional homes and failing communities face a slew of impediments to their learning and development which classroom time alone—regardless of quality—cannot overcome. unless children’s basic needs are met, attempts at closing the education gap will be futile.227 for low-income african american students (especially those who are at-risk) to reach their full potential, bbas must provide a positive, nurturing out-of-school environment twenty-four hours a day. these students must have space in which they can concentrate on their education and personal growth. black boarding academies will, therefore, be located on idyllic, well-equipped campuses in peaceful areas away from large cities but within feasible driving distance for school-organized trips to cultural events and 223 eeoc african american workgroup report, u.s. equal emp. opportunity comm’n (2013), https://www.eeoc.gov/federal-sector/report/eeoc-african-americanworkgroup-report# [https://perma.cc/ks6g-tkpm]. 224 id. (noting that professional contacts make an applicant “more employable by having someone vouch for them”). 225 id. (explaining the correlation between mentorship and faster job growth). 226 see supra text accompanying notes 74–79, 88–98. 227 see james w. ainsworth, why does it take a village? the mediation of neighborhood effects on educational achievement, 81 soc. forces 117, 117–18 (2002) (evaluating how poverty negatively affects educational outcomes); nancy a. gonzales et al., family, peer, and neighborhood influences on academic achievement among africanamerican adolescents: one-year prospective effects, 24 am. j. cmty. psych. 365, 366–67 (1996) (describing ecological influences on african american children’s educational outcomes). 2023] black boarding academies 833 home visits. bbas will actively ensure that campuses are free from physical danger, crime, and negative police interactions. buildings and water supplies will be free from lead, asbestos, and other harmful materials. basic needs will be met at communal facilities within walking distance from living facilities. excellent nutrition will be provided at dining halls, full mental and physical healthcare will be available through certified campus health centers, academic resources and assistance will be accessible at libraries and academic support centers, and recreation provided in campus recreation centers and athletics facilities. students will live in small dormitory “pods” of five to ten students. each pod will have a designated live-in “dorm parent.” dorm parents will be certified and experienced in age-appropriate supervision. these cozy group arrangements will function as a home away from home, with dorm parents providing round-the-clock, high-quality care and support for students’ academic and personal growth. living in small, self-contained communities will allow students to form deeper connections with each other and with the faculty and administration. whether at meals or simply sitting around one’s room or the courtyard, students will be able to meet with other students to have extended discussions about anything—courses, culture or private matters.228 this cozy environment will also facilitate frequent, informal interactions between students and their teachers or other school officials at meals or in the courtyard. other opportunities for casual interactions will be afforded to students, including socials or receptions perhaps in a hall named after a famous donor.229 a boarding environment also provides opportunities for experts-inresidence. students can knock on the door of an eminent author, artist, craftsman, attorney, scientist, engineer, scholar, or ceo, and be invited into the expert’s world of knowledge. in this way, students will have tangible exposure to a range of vocations from an early age in an informal setting. they will be able to identify talents and lifelong interests that they otherwise would not have encountered. experts-in-residents need not be limited to the worldly famous. they can also be local individuals from whom students can benefit in other ways. for example, san pasqual academy, a residential education program for high school foster youths in san diego, invites “foster grandparents” to live on campus for reduced rent. these foster grandparents act as intergenerational mentors, share their experience, insight, and support. 228 the most lasting and meaningful educational experience i had as a student at yale law school came outside the classroom. after dinner in the law school cafeteria, i regularly engaged in extended discussions on civil rights matters with my classmates who included lani guinier (later harvard law school professor), clarence thomas (later supreme court justice), hillary rodham (later secretary of state), and bill clinton (later president of the united states). these discussions took place at what was called “the black table,” sometimes with sam alito (later supreme court justice) looking on from another table. the black table is legendary. see, brooks, racial justice in the age of obama, at ix–x (2009). black boarding academies should attempt to replicate this type of experience for their students. 229 donors will be an important source of post-reparations funding. see infra part iii.d.2. 834 colum. j. race & l. [vol. 13:743 foster grandparents impart knowledge from their experience with life and also engage students in activities closer to home, such as cooking, crafts, gardening, and art.230 bba students will, in short, receive constant attention and supervision. no student will be allowed to skip class, coast along, fall through the cracks, or be given up as a lost cause. every student on campus will be an integral part of the academy family. their wellbeing and success will matter—and they will know it. 2. ties to the black community in addition to providing a safe and supportive living environment for students, black boarding academies will also strive to strengthen the bonds between students and the african american community. community-building endeavors start with an institutional model that prioritizes and celebrates african american perspectives and allows students to hone their leadership skills.231 students will learn how to use critical thinking to challenge with both the written and spoken word the relentless pushback against racial progress. these forensic skills are vitally important to the african american community.232 students will also put these skills to use through community service—praxis. they will, for example, participate in pro bono services the academies offer to their families. these endeavors might include adult education classes, help finding employment, basic financial planning, assistance applying for public benefits, wellness checks, and family therapy. in fact, many educational organizations serving disadvantaged children include wraparound family services as an integral part of their programs. the harlem children's zone is perhaps the most well-known program, having been featured on 60 minutes with anderson cooper.233 since 1970, this nonprofit organization has served poor children and families who live in harlem. it provides free parenting workshops and child-oriented health programs as an adjunct to its primary mission, pk12 education.234 more recently, basketball superstar lebron james has established the i promise school in akron, oh. this public elementary 230 michael j. lawler et al., comprehensive residential education: a promising model for emerging adults in foster care, 38 child. & youth servs. rev. 10, 11 (2014). see also hope acad. at san pasqual, cnty. of san diego health & hum. servs. agency (describing the san pasqual program’s emphasis on family and community). 231 see supra part iii.b.5. for a discussion of african american perspective—both representative and outlier—see brooks, diversity judgments, supra note 88, at 40–41. 232 bbas could be used as laboratories for experimenting with ways of effectively challenging the relentless resistance to racial progress in our society much in the way that howard law school was used as a laboratory for developing strategies to fight jim crow in the 1930s. thurgood marshall and other early civil rights lawyers honed their skills as students at howard law school. see j. clay smith, jr., thurgood marshall: an heir of charles hamilton houston, 20 hastings const. l. q. 503, 507–10 (1993) (describing thurgood marshall’s influences at howard law school). 233 watch: geoffrey canada and harlem children’s zone on ‘60 minutes’ with anderson cooper, harlem child.’s zone, https://hcz.org/news/hcz-on-60-minutes-withanderson-cooper/ [https://perma.cc/uzy2-gtzk] (last visited mar. 28, 2023). 234see generally harlem child.’s zone, https://hcz.org [https://perma.cc/xmn7zcf3] (last visited mar. 28, 2023). 2023] black boarding academies 835 school, which targets at-risk children, provides wraparound services that include financial counseling for students’ families.235 wraparound programs have a positive impact on students, families, and communities. one study of a pilot program found that after parents were given help in signing up for modest income supplements, affordable health insurance, and child-care subsidies, their children performed better in school, demonstrated stronger study skills, were more socially competent, exhibited fewer behavior problems, and participated in more extracurricular activities.236 the improvement was especially pronounced in nineto twelve-year-old boys.237 these findings should surprise no one. families and communities are a child’s fundamental locus of love, loyalty, and identity. disadvantaged children will not accept a school’s culture or its opportunities if they feel they are abandoning loved ones or otherwise sense they are betraying their identity.238 stable families and the functioning communities they help to create give students the peace of mind they need to commit their full attention and energies to their intellectual growth. in this critical sense, black boarding academies can only succeed if connected to the students’ families and communities. d. finances 1. costs if black reparations were designed to redress the full impact of slavery and jim crow on black lives,239 that would be an expensive proposition however calculated.240 estimates range from $6.4 trillion241 to $59.2 trillion.242 the numbers do not look any better when viewed at the 235 jpmorgan chase subsidizes these services. see stephanie rosa, welcome to house three thirty, the lebron james fam. found. (dec. 16, 2020), https://www.lebronjamesfamilyfoundation.org/news/welcome-to-house-three-thirty [https://perma.cc/8uw4-auqa]. 236 the annie e. casey found., new hope for low-income workers: improving economic and child outcomes in milwaukee 15(1999). 237 id. 238 living a double life can be uncomfortable, untenable, and even dangerous. see generally jeff hobbs, the short and tragic life of robert peace: a brilliant young man who left newark for the ivy league (2014) (telling the story of a young african american man’s struggle to relate his life at yale to his upbringing on the streets). 239 see supra part ii.b. 240 reparations can be calculated in numerous ways. the total amount of reparations could be equivalent to a desired increase in the percentage of the national wealth owned by black people. darity, h.r. 40, supra note 55 (arguing for reparations “enacted and implemented to achieve” increases in black wealth). alternatively, the total amount of reparations could be determined by multiplying the average racial earnings gap by the number of enslaved descendants each year the program is in existence. see brooks, atonement and forgiveness, supra note 2, at 162–63. for a discussion of other ways to calculate the cost of reparations and how these payments can be funded, see darity & mullen, supra note 2, at 259–63. 241 julia craven, we absolutely could give reparations to black people. here’s how, huffpost, https://www.huffpost.com/entry/reparations-black-americans-slavery_n_56c4d fa9e4b08ffac1276bd7 [https://perma.cc/z5hq-4chm] (last updated feb. 23, 2016). 242 denis rancourt, calculating reparations: $1.5 million for each slave descendant in the u.s., black agenda rprt. (jan. 23, 2013), https://blackagendareport.com/content/calculating-reparations-15-million-each-slavedescendant-us [https://perma.cc/c5wu-45dk]. 836 colum. j. race & l. [vol. 13:743 state level. for example, approximately five percent of the nation’s african american population resides in california.243 assuming even half of these individuals are qualified descendants, the state of california would owe anywhere from $160 billion (2.5 percent of $6.4 trillion) to over $1.48 trillion (2.5 percent of $59.2 trillion). if reparations are invested in educating qualified-descendant children, the state would owe each child a $275,000 to $2.5 million-dollar education.244 given the estimated cost of operating boarding academies, it could cost upwards of $50 million annually to operate just one black boarding academy for 500 pk-3 students on state-owned land.245 capital expenditures, such as the construction of classrooms and dormitories, would also have to be factored in. these amounts would have to cover at least one exemplary pk-3 academy. this academy could expand each year with annual reparations and additional funding from the academy’s post 243 christine tamir, the growing diversity of black america, pew rsch. ctr. (mar. 25, 2021), https://www.pewresearch.org/social-trends/2021/03/25/the-growing-diversity-ofblack-america/ [https://perma.cc/ur8e-6rdx] (showing 2.8 million black americans living in california, out of the 46.8 million black americans in the united states). 244 in 2020, the united states census bureau counted 582,033 african american children under age eighteen living in california. current black or african american population demographics in california 2020, 2019 with demographics and stats by age, gender, suburban stats, https://suburbanstats.org/race/california/how-many-black-orafrican-american-people-live-in-california. [https://perma.cc/anr5-jca9]. conservatively assuming that only half of the african american child population consists of qualified descendants, generates a figure of 291,000 qualified descendant children in california. if the amount owed to all african americans is committed to children rather than adults, that amount divided by the number of african american children generates a per capita rough estimate for each qualified descendant child’s share of the reparations fund. this yields the figures cited in the text. 245 fifty million dollars assumes a per-pupil expenditure of $100,000 for 500 students without factoring in capital expenditures. the per capita figure is meant to suggest an individual educational services pay-out for every qualified descendant child. while financial information on boarding schools is not readily available, it is reported that the three seed schools, which offer five-day-a-week boarding, spent $32.3 million in 2021, with a perpupil allotment of slightly under $27,000 for 1,185 students. 2021 annual report, supra note 161, at 26. seed schools are public. among the prestigious private new england prep schools, the federal tax exempt form (form 990) for reporting year 2020 show total operating expenses of $131 million at phillips academy at andover (founded in 1778) spent on 1,142 students, for a per-student expenditure of about $124,000; of $131 million at phillips exeter academy (founded in 1781) spent on 1,073, students for a per-student cost of about $124,000; and of $72 million at deerfield academy (founded in 1797) spent on 650 students, for a perstudent allotment of about $111,000. trustees of phillips academy, propublica (2020), https://projects.propublica.org/nonprofits/display_990/42103579/05_2021_prefixes_0104%2f042103579_202006_990_2021052018155973 [https://perma.cc/37kp-z2mn]; phillips exeter academy, propublica (2020) https://projects.propublica.org/nonprofits/ organizations/20222174/202121319349302872/full [https://perma.cc/k6ze-cass]; trustees of deerfield academy, propublica (2020), https://projects.propublica.org/nonprofits/display _990/42103563/05_2021_prefixes_01-04%2f042103563_202006_990_2021052018155136 [https://perma.cc/2ulj-453z]. though not a boarding school, the private harlem children’s zone, like the seed schools, focuses on underprivileged children. it had 2020 total expenditures of $105 million on 1,165 students, for a per-student cost of about $90,000. harlem childrens zone inc, propublica (2020), https://projects.propublica.org/nonprofits/ organizations/237112974 [https://perma.cc/9vsq-7vlr]. not quite an accurate comparison, the i promise school, a non-boarding public school in akron, ohio which educates underprivileged children, had total operating expenses in 2020 of $6 million, which calculates to a per-student expenditure of about $13,000 for 452 students. promise schools, propublica (2020), https://projects.propublica.org/nonprofits/organizations/464341453 [https://perma.cc/z678-e8df]. 2023] black boarding academies 837 reparations funding.246 the exemplary academy (or academies, depending on the size of the starter package) would operate as the flagship of a growing fleet. over time, additional academies could open in each state. each year, the academies would increase their capacities to offer a wider range of grades and services to an increasing number of students. 2. post-reparations funding it is unlikely that african americans will get the $6.4 trillion to $59.2 trillion owed as reparations.247 the inflationary effect on the economy alone may make full reparations prohibitive.248 then there is the cost of funding selected, favored reparatory projects like black boarding academies just discussed.249 hence, reparations alone will not be sufficient. other funding sources will have to be harvested. for that reason, reparations should be viewed as seed money, money that must be supplemented with non-reparative funding—post-reparations funding. there is no dearth of available post-reparations funding sources available to black boarding academies. to tap into these sources, these academies, not unlike other elite schools (private or public),250 will have to engage in annual fundraising. they must, therefore, institutionalize within their operations robust fundraising departments. reparations (as startup funds) must cover the cost of operating a department devoted to a full range of fundraising activities. marketing and outreach, securing donations and grants, creating scholarships, and increasing endowments must become an integral part of every bba.251 public and private schools that currently provide high-quality, tuition-free education to disadvantaged minorities offer some insight into the fund-raising landscape black boarding academies will likely have to traverse beyond reparations. seed schools are urban public boarding schools that serve low-income, first-generation, college-bound students. mostly black, these students are given a free education that costs about $27,000 per year per student.252 every year, the seed foundation draws from a stellar list of more than $1,000,000 in donations from charitable organizations and individuals, including the bill and melinda gates foundation, oprah winfrey’s angel network, and former president barack obama.253 businesses and public agencies such as the metropolitan transportation authority also contribute. these contributions cover 246 on the matter of expansion, see supra part iii.b.1. on the matter of sustainability and post-reparations funding, see infra part iii.d.2. 247 see supra part iii.d.1. 248 releasing large sums of federal expenditures could lead to inflation. see darity & mullen, supra note 2, at 266. 249 see supra part iii.d.1. 250 these institutions seek funds from a variety of sources, including governments, philanthropic organizations, businesses, and individuals, as well as tuition. 251 see plans for future schools, the seed found., https://www.seedfoundation. com/future-plans [https://perma.cc/86q2-lwcx] (noting the logistical and financial considerations that go into opening a public boarding school). 252 see supra note 245. 253 2021 annual report, supra note 161, at 23. 838 colum. j. race & l. [vol. 13:743 operating costs for existing schools and start-up costs for building new schools.254 the naya many nations academy in portland, oregon, is another example. naya offers high school education and wraparound services (including elder care) for local high school students and their families within the native american youth and family center. 255 naya relies on a diverse range of public and private funding sources for student scholarships, including large international corporations (such as cocacola, jp morgan chase, boeing, and ebay), charitable organizations, individual donors, and contributions from cities, counties, and tribes.256 in 2014, for example, the organization was able to raise over $7 million in grants and contributions.257 naya also partners with institutions, such as universities, public schools, art museums, and police departments, to provide additional programs and services.258 understanding the importance of a stable living environment and comprehensive care, naya plans to secure funds to construct a dormitory on campus.259 education tax credits can also be used as a source of funding. individuals and corporations can reduce their tax liability by donating a limited amount of money to state-designated scholarship funds that support low-income children. private schools often use tax credits as a source of public funding, though it is technically not considered to be public funding because the donations never pass through state treasuries.260 though public institutions, black boarding academies should consider this private-public funding source. in addition, bbas could draw on “equitable services” under every student succeeds act (essa).261 signed into law by president obama in 2015, essa gives nonprofit private schools access to various federal 254 mary bruce, taking a chance; public boarding school reaps great success, abc news (june 4, 2010, 2:45 pm), https://abcnews.go.com/us/article/public-boardingschool-reaps-great-success/story?id=10828451[https://perma.cc/vc6j-emm6]. 255 see many nations academy, naya fam. ctr., https://nayapdx.org/services/ many-nations-academy/ [https://perma.cc/76kh-tg8w] (last visited mar. 28, 2023). as naya’s student body mostly consists of native americans, its pedagogy is fundamentally informed by indigenous values and culture. african american, latino, and white students make up smaller portions of the student body. between forty and fifty percent of its students are homeless. see anna pedersen, portland alternative school brings success stories for native american youths, street roots (mar. 22, 2020), https://www.streetroots.org/ news/2020/03/22/portland-alternative-school-brings-success-stories-native-american-youths [https://perma.cc/tn4t-le9w]. 256 naya fam. ctr., annual report 2013-2014, at 11–12 (2014) [hereinafter naya annual report]; our partners and supporters, naya fam. ctr., https://nayapdx.org/support-us/our-partners-and-supporters/ [https://perma.cc/mbh3gn87] (last visited mar. 28, 2023). 257 naya annual report, supra note 256, at 8. 258 our partners and supporters, supra note 256. 259 pedersen, supra note 255. 260 see ashley berner, inst. for educ. pol’y, public funding for private schools: recent reserach and larger policy implications 2 (2016). the specific requirements for using tax credits as a funding source varies from state to state but must comply with constitutional rules set by the supreme court. id. 261 see every student succeeds act, 20 u.s.c. § 6301 (2015). private schools frequently draw upon this funding source. 2023] black boarding academies 839 programs through their local school districts.262 as publicly funded schools, bbas would presumably have automatic access to these services to support their low-income students. but this may not be so given the independence bbas seek. therefore, bbas may have to go through essa to fund some of its services. it may be well worth it because of the bevy of services essa funds. for example, title i-a essa programs, which are designed to close academic achievement gaps for low-income students with demonstrated needs, can cover the cost of special education services through a publicschool teacher or outside provider.263 title ii-a provides professional support and development for teachers, principals, and staff. such support could, for example, take the form of on-site teacher training and development related to expeditionary learning, or cover the cost of licensure programs.264 essa has added a new program under title iv-a called “student support and academic enrichment” (ssae). funding under this new program is limited, but it is also flexible. it has supported a wide variety of activities, such as stem-related competitions, accelerated learning programs, partnerships between educational institutions and businesses, multidisciplinary endeavors, and programs that increase participation of underrepresented student groups in certain subjects.265 another program, title iv-b, offers grants to organizations that qualify as community learning centers. these grants can be used to fund extracurricular programs and activities such as tutoring, counseling, parent participation initiatives, and career preparation services that can include internships and apprenticeships.266 these services cover much of what bbas want to do. hence, it behooves them to consider essa if they do not automatically qualify for the services it offers. bbas could seek funding directly from state coffers beyond what a state might otherwise pay as black reparations. the ask-for amount could be equivalent to the per-student amount of state funding. pre-covid, the national average spent annually was $15,114 per child.267 a stateadministered account could be opened for each eligible student. payments from these accounts could be made to bbas for authorized educational expenses; such as, tuition and boarding. any unused annual amounts could remain in students’ accounts. students could draw on these savings for a set number of years after high school graduation to pay for the cost of attending a state-approved college, university or professional program. the state could reclaim any unspent funds and, to assure accountability, require bbas to make detailed financial reports. the sustainability of bbas could also be assured by setting aside a limited number of spaces in each class for qualified descendants from 262 see ross izard, how federal programs support private k-12 students and teachers 3 (2019). 263 id. at 5. 264 id. at 8. 265 id. at 10–11. 266 id. at 12. 267 john festerwald, california rises to 30th in nation in pre-covid per-student spending, edsource (oct. 28, 2021, 8:28 am), https://edsource.org/updates/california-rises30th-in-nation-in-pre-covid-per-student-spending [https://perma.cc/zgd9-r9sb] (noting that, spending $14,174 per student, california ranks thirtieth in the nation). 840 colum. j. race & l. [vol. 13:743 families who can afford to pay full or partial tuition.268 opening up admissions in this fashion early on moves bbas toward covering the full range of qualified descendants sooner rather than later.269 but bbas have to be careful not to crowd out their primary constituency—low-income students. it is unlikely african americans will receive all the reparations that are rightfully due or urgently needed to redress the lingering effects of slavery and jim crow. post-reparations funding must, therefore, become part of the diurnal discourse on black reparations even beyond black boarding academies. the same must be said about the constitutionality of black reparations. that issue is also a threshold matter of concern. e. constitutionality black reparations are asymmetrical remedial measures intended to redress two specific atrocities—slavery and jim crow—committed against a specific race—black americans.270 the constitutionality of these race-conscious measures is determined by the law governing traditional affirmative action programs. at present, the supreme court appears to be on the verge of doing away with race-conscious college admissions in favor of colorblind remedial measures,271 thus following in the footsteps of a recent california state court decisions.272 the impending change in the 268 san antonio independent school district v. rodriguez, 411 u.s. 1 (1972) (reasoning that because wealth is not a suspect classification, this sort of benign discrimination does not offend the constitution). 269 of course, further analysis will be needed to define “affordability.” it will likely vary from household to household and depend on a wide range of factors, much like standard financial assessments used to determine student eligibility for financial aid. one would, however, expect academies to use a more equitable calculus than what is typically used to determine financial aid eligibility. an appropriate calculation would account for financial disadvantages disproportionately affecting african americans such as the racial wealth gap and lower property values. 270 all reparations are asymmetrical remedial measures. they go only to the victims of the atrocity in question. for further discussion, see supra text accompanying notes 38–40. 271 the supreme court will likely ban all affirmative action in public schools and beyond when it reconsiders grutter v. bollinger, 539 u.s. 306 (2003) (upholding narrowlydefined affirmative action programs), in deciding students for fair admissions, inc. v. univ. of n.c., 142 s. ct. 896 (2022) (challenging affirmative action programs as improper racial classification), during its 2022–23 term. the court, which is significantly more conservative than it was at the time grutter was decided, added consolidated cases to its docket that have petitioned for “colorblind” admissions policies in the nation’s schools, colleges, and universities. see amy howe, court will hear challenges to affirmative action at harvard and university of north carolina, scotusblog (jan. 24, 2022, 11:44 am), https://www.scotusblog.com/2022/01/court-will-hear-challenges-to-affirmative-action-atharvard-and-university-of-north-carolina/ [https://perma.cc/98gn-vyqp]. see also, greg stohr & zoe tillman, college affirmative action in doubt after supreme court fray, bloomberg l. (oct. 31, 2022, 5:47 pm), https://news.bloomberglaw.com/us-lawweek/supreme-court-justices-battle-over-race-in-college-admissions [https://perma.cc/7ypxsjsd]. 272 the superior court of california in the county of los angeles struck down, on equal-protection grounds, state laws requiring publicly traded companies with headquarters in the state to have at least one female director and one person of color on their board, depending on board size. see crest v. padilla, no. 20stcv37513, 2022 cal. super. lexis 5531, at 3 (l.a. cnty. super. apr. 1, 2022) (finding that the legislature cannot “skip directly to mandating heterogeneous boards” to solve the diversity problem). in california, prop (or proposition) 209, the california civil rights initiative, cal. const. art. i, § 31 (deering 2002), proscribes race-conscious distributions of public monies, 2023] black boarding academies 841 court’s racial jurisprudence need not, however, sound the death knell for black reparations. it only means that federal and state governments will have to craft black reparations in racially neutral ways, that is, without explicitly granting a preference to black americans.273 using race-neutral measures to remedy race-conscious harms seems rather odd, to say the least.274 but it appears that this will be the law. in this section, i attempt to explain how black reparations can be constructed in a race-neutral way without vitiating them altogether. my prescription applies with equal force to black boarding academies. 1. governing law the structure on which the law of affirmative action law is constructed has been previously explained as follows: [i]t is useful to draw a distinction between ‘involuntary’ and ‘voluntary’ affirmative action programs. the former are affirmative action programs imposed on an institution— such as, an employer, school district or voting district—by a court as a remedy for a proven violation of statutory or constitutional law. an involuntary affirmative action program can also be imposed by executive order. executive goods or services. a ballot proposition passed in 1996 by fifty-five percent of californians who voted, prop 209 amended the california constitution. see coalition for econ. equity v. wilson, 122 f.3d 692, 697 (9th cir. 1997) (explaining that the california electorate passed prop 209 in november 1996). prop 209 prohibits state governmental institutions from considering race, sex, or ethnicity in public education as well as in public employment and contracting. cal. const. art. i, § 31. as exceptions to its general anti-discrimination rule, prop 209 allows raceor sex-conscious state-sponsored action for sex-based bona fide occupational qualifications, id. at § 31(c), the preservation of existing consent decrees, id. at § 31(d), and raceand sex-conscious actions required as a condition of eligibility for federal funding, id. at § 31(e). see also stephen r. mccutcheon jr & travis j. lindsey, the last refuge of official discrimination: the federal funding exception to california's proposition 209, 44 santa clara l. rev. 457, 458 (2004) (arguing for a narrow construction of § 31(e) “to ensure that the purpose of proposition 209 is not frustrated”); caitlin knowles myers, a cure for discrimination? affirmative action and the case of california's proposition 209, 60 indus. & lab. rels. rev. 379, 379 (2007) (finding that “employment among women and minorities dropped sharply” after the enactment of prop 209 and questioning whether this means that affirmative action “failed to create lasting change in employers’ prejudicial attitudes”). 273 to be precise, the court’s concern seems to be less with racial classifications or race-conscious decision making than with racial preferences. our federal civil rights laws use racial classification and are certainly race-conscious as they expressly grant rights on the basis of “race” or “color.” see, e.g., title vii of the 1964 civil rights act, 42 u.s.c. § 2000e-2 (banning employment discrimination). on the impossibility of conceptualizing racial neutrality, see infra note 279. justice breyer has noted, “i have counted 51 federal statutes that use racial classifications. i have counted well over 100 state statutes that similarly employ racial classifications. presidential administrations for the past half-century have used and supported various race-conscious measures.” parents involved in cmty. schs. v. seattle sch. dist. no. 1, 551 u.s. 701, 827 (2007) (breyer, j., dissenting). it is perhaps more useful to distinguish between symmetrical and asymmetrical laws rather than between raceneutral and race-conscious laws. see supra text accompanying notes 38–40. conservative justices favor symmetrically (referring to it as “race-neutral”) rather than asymmetrically (referring to it as “racial classifications” or “race-conscious”). 274 it certainly is inconsistent with the reparative mission. see supra part iii.a. rather than reversed discrimination, affirmative action, in my view, reverses discrimination. it is responsive to discriminatory traditions, the lingering effects of slavery, and jim crow. see discussion supra part ii.b. 842 colum. j. race & l. [vol. 13:743 order 11246 requires certain federal contractors to ‘take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.’ . . . a voluntary affirmative action program is created on an institution's own initiative. such a program may, however, arise in anticipation of a threat of future litigation. consent decrees, in which the defendant typically denies the plaintiff's charge of discrimination in violation of statutory or constitutional law, are included in the category of voluntary affirmative action. . . . the legal basis on which an affirmative action program is challenged sets the basic framework for determining the program's permissibility. affirmative action programs can be challenged on statutory or constitutional grounds. . . . a voluntary or involuntary program survives an attack based on constitutional grounds if it satisfies the applicable standard of judicial review—such as the strict scrutiny test—under the equal protection clause of the fourteenth amendment or the equal protection component of the fifth amendment. there must, however, be a showing of discriminatory purpose as a prerequisite for raising the constitutional issue in the first place. that is, the plaintiff must establish that the challenged affirmative action program was created or implemented ‘because of” race or gender.275 as neither slavery nor jim crow violated federal law prior to their termination in 1865 and 1972, respectively,276 reparations paid from public treasuries raise an issue of voluntary, rather than involuntary, affirmative action. black reparations, including black boarding academies, fall within the category of voluntary affirmative action.277 while the law governing voluntary affirmative action measures can be excessively technical and frustratingly contradictory,278 the norms that 275 brooks, law of discrimination, supra note 78, at 1291–92 (citations omitted). 276 slavery was legal until it was outlawed by the thirteenth amendment, see u.s. const. amend. xiii, and jim crow was legal until it was invalidated by federal statutory law. see, e.g., civil rights act of 1964, 42 u.s.c. § 2000a. 277 that reparations cannot be styled as involuntary affirmative action is further indicated by the fact that issues of sovereign immunity, the statute of limitations, the absence of a cognizable right of action, and other procedural hurdles make it unlikely that any court would ever reach the merits of a lawsuit nor, if it did, would ever order a legislature to pay reparations for slavery or jim crow. for a discussion of litigation involving reparations including black reparations, see brooks, atonement and forgiveness, supra note 2, at 98–140. 278 for example, the colorblind, or racial omission, norm which is at the heart of the affirmative action controversy, assumes that it is possible for one to ignore another person’s color or that racial or gender identity is insignificant. but professor thomas reed powell famously said: “if you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” t. arnold, the symbols of government 101 (1935). 2023] black boarding academies 843 give shape to the legal framework are sharply drawn. these norms—racial integration (or diversity) and racial omission (or colorblindness)—have been in place since the first major affirmative action case decided by the supreme court. in regents of university of california v. bakke, justice blackmun invoked the racial integration norm and rejected the racial omission norm when he asserted that “[i]n order to get beyond racism, we must first take account of race.”279 engineering racial integration is the most palpable way of getting beyond racism, of counteracting racism that comes under the patina of colorblindness, of removing the vestiges of slavery and jim crow from our society. racial integration, in other words, provides the greatest boost to racial progress, and affirmative action provides the greatest boost to racial integration. these points were brought home during the heyday of affirmative action, pre-bakke 1970s,280 which is why over the years affirmative action has received the support of a majority of justices: liberal justices like justices marshall, brennan, ginsburg, breyer, sotomayor, and kagan as well as center-right justices like justices o’connor and kennedy.281 notwithstanding the effectiveness of affirmative action, the supreme court limits its use, and, hence, the vindication of the racial integration norm, in public decision making. the legal framework that has developed since bakke permits the government to use a racial classification in the form of preferential treatment consistent with the equal protection clause if it can pass judicial review under the strict scrutiny test. in other words, the racial classification must serve a compelling governmental interest in a narrowly tailored way.282 the ends must be compelling, and 279 regents of univ. of cal. v. bakke, 438 u.s. 265, 407 (1978) (blackmun, j., dissenting). 280 see brooks, racial justice in the age of obama, supra note 228, at 144–51, figs. 30, 32, 34, 36, 38, 40, 42 & 44 (showing advances in earnings at all levels of education); 157–59, figs. 55, 57 & 59 (showing advances in college participation, even exceeding whites). after bakke, the supreme court disallowed the use of racial quotas in government decision making. racial preferences then became the standard form of affirmative action. see bakke, 438 u.s. at 316–17 (powell, j.). see also, city of richmond v. j.a. croson co., 488 u.s. 469 (1989); adarand constructors, inc. v. peña, 515 u.s. 200 (1995). 281 see, e.g., bakke, 438 u.s. at 267 (finding that affirmative action is permissible in at least some contexts, in a plurality opinion by justice powell, joined in part by justices brennan, white, marshall, and blackmun); grutter v. bollinger, 539 u.s. 306, 307–10 (2003) (upholding a race-conscious admissions program, in an opinion written by justice o’connor and joined in full by justices stevens, souter, ginsburg, and breyer); fisher v. univ. of tex., 579 u.s. 365, 365–67 (2016) (upholding a race-conscious admissions program, in an opinion written by justice kennedy and joined by justices ginsburg, breyer, and sotomayor). 282 see, e.g., parents involved in cmty. schs. v. seattle sch. dist. no. 1, 551 u.s. 701, 720 (2007); adarand, 515 u.s. at 227. 844 colum. j. race & l. [vol. 13:743 the means must be narrowly designed to achieve such ends. these are the strict scrutiny’s ends test283 and means test.284 283 the constitutional ends test can basically be satisfied on two grounds—the remedial-purpose rationale and the diversity rationale. the remedial-purpose rationale received the imprimatur of a divided court in city of richmond v. j.a. croson co., 488 u.s. 469 (1989). by a 6-3 vote, the court overturned an affirmative action plan adopted by the city of richmond, virginia, that required white-owned prime contractors to whom the city awarded construction contracts to subcontract at least thirty percent of the dollar amount of the contracts to one or more minority business enterprises ("mbes"). an otherwise qualified mbe from anywhere in the united states was eligible to avail itself of the thirty-percent setaside. id. at 477. for the first time, five members of the court unequivocally agreed that the strict scrutiny test is the appropriate standard of judicial review under the equal protection clause for affirmative action programs favoring racial minorities. id. at 494–96. applying the strict scrutiny test, chief justice rehnquist and justices o'connor (the author of the majority opinion), white, scalia, and kennedy ruled that richmond failed to show a compelling governmental interest to justify the plan, because the factual predicate supporting the plan did not establish a firm basis for believing that the plan's purpose was to redress past discrimination in the city's construction industry. id. 498–506. there was no record of prior discrimination by the city in awarding construction contracts. rather, the plan was based on a generalized assertion that there had been past discrimination in the construction industry nationwide (past societal discrimination), id. at 498–500, and relied on improper statistical studies. id. at 500–02. the city's set-aside program also failed the strict scrutiny test because the thirty-percent quota was not narrowly tailored to remedy the city's past discrimination even if such discrimination could be established. id. at 507–08. in adarand constructors, inc. v. peña, 515 u.s. 200, 207 (1995), the court, in a five-to-four decision, held that the strict scrutiny test applies to congressionally designed race-based affirmative action programs challenged under the fifth amendment. an alternative rationale for upholding voluntary race-based affirmative programs is the diversity rationale. in grutter v. bollinger, 539 u.s. 306 (2003), the court reviewed a plus-factor affirmative action plan in which race was one of several considerations used in admitting students to the prestigious university of michigan law school. by a vote of five to four, the court, in an opinion written by justice o’connor, held that student body diversity constitutes a compelling state interest and, as such, satisfies strict scrutiny’s ends test. id. at 327–33. relying in significant part on justice powell’s concurrence in regents of university of california v. bakke, 438 u.s. 265, 316 (1978) (powell, j., concurring), the court deemed it important that the “university's use of race [was] to further only one interest: ‘the attainment of a diverse student body.” grutter, 539 u.s. at 324 (quoting bakke, 438 u.s. at 311 (powell, j., concurring)). “justice powell,” the court noted, “emphasized that nothing less than the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this nation of many peoples.’” id. (quoting bakke, 438 u.s. at 313 (powell, j., concurring) (internal citation omitted)). “in seeking the ‘right to select those students who will contribute the most to the ‘robust exchange of ideas,' a university seeks ‘to achieve a goal that is of paramount importance in the fulfillment of its mission.’” id. (quoting bakke, 438 u.s. at 313 (powell, j., concurring). “both ‘tradition and experience lend support to the view that the contribution of diversity is substantial.’” id. (quoting bakke, 438 u.s. at 313 (powell, j., concurring)). the court has upheld the diversity rationale in subsequent cases, including fisher, 579 u.s. at 381 (2016), thereby elevating justice powell’s concurrence in bakke to ratio decidendi. see also grutter, 539 u.s. at 326– 34. 284 “to be narrowly tailored, a race-conscious admissions program cannot use a quota system,” grutter, 539 u.s. at 334, but instead must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application,” fisher v. univ. of tex., 570 u.s 297, 309 (2013) (quoting grutter, 539 u.s. at 337). “in other words, an admissions program must be 'flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.’” grutter, 539 u.s. at 334 (quoting bakke, 438 u.s. at 317). for a more detailed discussion of the strict scrutiny test, see generally, adam winkler, fatal in theory and strict in fact: an empirical analysis of strict scrutiny in the federal courts, 59 vanderbilt l. rev. 793 (2006). 2023] black boarding academies 845 conservative justices reject this legal framework. they believe that the voluntary use of race by a public entity can never serve a compelling state interest. pushing back against the liberal perspective on race,285 conservative justices view race-conscious decision making, such as affirmative action, as a form of “discrimination”— “reverse discrimination.” it is, in the words of justice thomas, the court’s longest-serving conservative justice, “just as noxious as discrimination inspired by malicious prejudice. in each instance, it is racial discrimination, plain and simple.”286 chief justice roberts advises that, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”287 hence, the racial omission norm trumps the racial integration norm in the view of conservative justices. this point of view has had a growing presence on the supreme court as the court has gotten increasingly conservative since bakke. adherents on the current court are chief justice roberts and justices thomas and alito.288 if the trump appointees (justices gorsuch, kavanaugh, and barrett) remain true to their conservative convictions, the court will have enough justices to overturn race-conscious admissions.289 2. saving black reparations if the conservative perspective becomes law, as i think it will, reparative programs will have to be crafted in a racially neutral fashion in order to satisfy the equal protection clause.290 racial classifications will no longer be valid for whatever reason when used voluntarily; in other words, without the predicate of a violation of federal law.291 justice thomas’s view on the matter—“a state’s use of race in higher education 285 see supra text accompanying notes 278–282. 286 adarand, 515 u. s. at 241 (thomas, j., concurring). 287 parents involved, 551 u.s. at 748 (2007). 288 see, e.g., fisher, 579 u.s. at 389 (thomas, j., dissenting); id. (alito, j., dissenting opinion, in which roberts, c. j., and thomas, j., joined). 289 “civil rights groups were worried about all three trump appointees and their positions on race when they were nominated.” marcia coyle, gorsuch, kavanaugh, barrett offer few clues on affirmative action’s future, law.com (jan. 24, 2022, 5:13 pm), https://www.law.com/nationallawjournal/2022/01/24/gorsuch-kavanaugh-barrett-offer-fewclues-on-affirmative-actions-future/ [https://perma.cc/2s7f-9wtx]. 290 it has long been established that the equal protection clause of the fourteenth amendment, u.s. const. amend. xiv, § 1, largely shapes title vi of the civil rights act of 1964, 42 u.s.c. § 2000d, which prohibits racial discrimination in admissions at private colleges receiving federal funds. see regents of univ. of cal. v. bakke, 438 u.s. 265, 284, 287 (noting that title vi reflects a “congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the constitution,” but “proscribe[s] only those racial classifications that would violate the equal protection clause or the fifth amendment”). see also grutter v. bollinger, 539 u.s. 306, 343 (2006) (adopting bakke’s view of title iv); gratz v. bollinger, 539 u.s. 244, 276 n.23 (“we have explained that discrimination that violates the equal protection clause of the fourteenth amendment committed by an institution that accepts federal funds also constitutes a violation of title vi” (citing alexander v. sandoval, 532 u.s. 275, 281 (2001); united states v. fordice, 505 u.s. 717, 732, n.7 (1992); and alexander v. choate, 469 u.s. 287, 293 (1985))). 291 for the distinction between involuntary and voluntary affirmative action, see supra text accompanying notes 275–276. while both forms of affirmative action are governed by different statutory standards, they are largely governed by the same constitutional rule— the strict scrutiny test. for further discussion, see, e.g., brooks, law of discrimination, supra note 78, at 1292–1403. but even in the statutory context, the court could rule that judicial remedies must be race neutral. that would depend, one would suppose, on the text of the governing statute. 846 colum. j. race & l. [vol. 13:743 admissions decisions is categorically prohibited by the equal protection clause”292—will become the law of the land for all voluntary affirmative action programs employed by public entities.293 thus, while remedying past discrimination or creating a diverse student body may still be compelling state interests,294 the means to achieving this interest would have to be racially neutral.295 can black reparations pass conservative scrutiny? i think they can. the key is to base black reparations not on race but on slavery or jim crow; in other words, the atrocities themselves.296 slavery and jim crow are facially neutral atrocities in that they victimized non-black americans as well as black americans. thus, offering reparations to the descendants of slavery or jim crow, as opposed to black descendants, avoids the use of a race-conscious category. none of these descendants of slavery or jim crow are exclusively black. i begin with slavery. on an episode of “finding your roots,” henry louis gates jr.’s award-winning series on public tv, the harvard scholar turned tv star, interviewed the white filmmaker, michael moore. in exploring moore’s family tree, gates revealed that moore’s eighth-great-grandfather, who was scottish, was “sold into slavery to massachusetts as a prisoner of war” 292 fisher v. univ. of tex., 570 u. s. 297, 315 (2013) (thomas, j., concurring) (emphasis added). 293 the fundamental legal difference between liberal and conservative justices is over the meaning of the equal protection clause. both camps reach opposite conclusions regarding the constitutionality of race-conscious government measures, drawing a line from the equal protection clause, as interpreted by brown v. board of education, 347 u.s. 483 (1954), to today. both camps swear allegiance to brown. see, e.g., parents involved in comm. schs. v. seattle sch. dist., 551 u.s. 701, 747 (roberts, c.j.), 798–99 (stevens, j., dissenting). harkening back to justice blackmun’s view expressed in bakke, see supra text accompanying note 280, liberal justices argue that “the equal protection clause permits . . . [the] use [of] race-conscious criteria to achieve positive race-related goals, even when the constitution does not compel it.” parents involved, 551 u.s. at 823 (breyer, j., dissenting). conservative justices argue that, “the whole point of the equal protection clause is to take race off the table.” david savage, supreme court justices voice support for affirmative action ban, l.a. times (oct. 15, 2013, 1:06 pm), https://www.latimes.com/nation/nationnow/la-na-nnsupreme-court-justices-affirmative-action-20131015-story.html [https://perma.cc/nle3w5tf]. the issue, in other words, is what is the legal proposition for which brown stands? does brown mean that the integration norm trumps the racial omission norm (liberals) or that the racial omission norm trumps the racial integration norm (conservatives)? 294 for a discussion of the constitutional ends test, see, e.g., supra note 283. 295 on the one hand, it would appear that the means test, but not the ends test, would be affected. to be narrowly tailored, an admissions program can use neither a racial preference nor a racial quota. see supra note 283. on the other hand, it could be argued that the strict scrutiny test itself falls because diversity can never be a compelling purpose for the use of race in college admissions. perhaps the court’s opinion in students for fair admissions, inc. v. univ. of n.c., 142 s. ct. 896 (2022), will clarify the matter. 296 betting that the governing legal regime will not change, the california task force on reparations would base eligibility for reparations on race. reparations for the state’s participation in the peculiar institution would go to african americans who are direct descendants of enslaved or freed black people living in the u.s. before the end of the 19th century. see interim report, supra note 5, at 5. see also soumya karlamangla, california task force votes to offer reparations only to descendants of enslaved people, n.y. times (mar. 30, 2022), https://www.nytimes.com/2022/03/30/us/california-reparations.html [https://perma.cc/t5u6-drv8]; lil kalish, california task force: reparations for direct descendants of enslaved people only, cal matters (mar. 30, 2022), https://calmatters.org/california-divide/2022/03/california-reparations-task-force-eligibility/ [https://perma.cc/ge9x-mc6z]. 2023] black boarding academies 847 in 1649.297 historians, in fact, estimate that during the seventeenth and eighteenth centuries, more than 300,000 white people lived in bondage in the american colonies.298 also, it is estimated that, “between 1492 and 1880, between 2 and 5.5 million native americans were enslaved in the americas in addition to 12.5 million african slaves.”299 even after slavery was outlawed by the american government, “those interested in profiting from the enterprise deployed a bouquet of legal terms and frameworks to continue the practice” of enslaving native americans.300 thus, black people were not the only racial group forced into chattel slavery on american soil. slavery was a system of unabashed economic exploitation in which the profit motive trumped morality.301 though dark skin color would eventually become the social marker of american slavery, color and slavery were not coterminous. acknowledging the existence of other slave trades in america in no way diminishes the magnitude slavery has had on black lives, including its lingering effects. that point must be made absolutely clear.302 the case for singling out african americans for black reparations (and native americans for their own reparations303) is solid in my view.304 jim crow, like slavery, was not exclusive to african americans. although black people were the main targets of jim crow, other people were also materially impacted by these laws. “white-only” or “colored” signs in restaurants, theaters, restrooms, drinking fountains and other places of public accommodations excluded black people and other non 297 finding your roots: hard times (pbs television broadcast feb. 26, 2019). 298 see, e.g., don jordan &michael walsh, white cargo: the forgotten history of britain’s white slaves in america (2008). one prominent reviewer, joyce lau, writes: “mainstream histories refer to these laborers as indentured servants, not slaves, because many agreed to work for a set period of time in exchange for land and rights. the authors argue, however, that slavery applies to any person who is bought and sold, chained and abused, whether for a decade or a lifetime. many early settlers died long before their indenture ended or found that no court would back them when their owners failed to deliver on promises. and many never achieved freedom or the american dream they were seeking. . . . white cargo is meticulously sourced and footnoted. . . . quotations from 17thand 18thcentury letters, diaries and newspapers lend authenticity as well as color. excerpts from wills, stating how white servants should be passed down along with livestock and furniture, say more than any textbook explanation could. . . .” joyce lau, master and servant, n.y. times (apr. 27, 2008), https://www.nytimes.com/2008/04/27/books/review/lau-t.html [https://perma.cc/mq3z-l33g]. 299 see colonial enslavement of native americans included those who surrendered, too, brown univ. (feb. 15, 2017) (quoting linford d. fisher, “why shall wee have peace to bee made slaves”: indian surrenderers during and after king philip’s war, 64 ethnohistory 91 (2017)), https://www.brown.edu/news/2017-02-15/enslavement [https://perma.cc/j3x9-2e4u]. 300 david treuer, review: the new book ‘the other slavery’ will make you rethink american history, l.a. times (may 13, 2016, 10:00 am), https://www.latimes.com/ books/jacketcopy/la-ca-jc-native-american-slavery-20160505-snap-story.html. 301 see generally, greg timmons, how slavery became the economic engine of the south, history, https://www.history.com/news/slavery-profitable-southern-economy (last updated sept. 2, 2020). 302 the authors of white cargo, supra note 298, take care to quote african american sources in their research and clearly state that their research does not diminish the significance of the much larger black slave experience. 303 i make this argument in when sorry isn’t enough, supra note 2, at 223–309. 304 see supra part ii.b. 848 colum. j. race & l. [vol. 13:743 white people, e.g., asians and latinx. an example can be found in gong lum v. rice.305 in this case, martha lum, “a child of chinese ancestry, born in this country,”306 sued a high school district and the state superintendent of education in mississippi for refusing to admit her to a high school “for children of the white or caucasian race.”307 she claimed discrimination “on account of her race or ancestry.”308 the law governing school attendance was described by the court as follows: by statute it is provided that all the territory of each county of the state shall be divided into school districts separately for the white and colored races; that is to say, the whole territory is to be divided into white school districts, and then a new division of the county for colored school districts. in other words, the statutory scheme is to make the districts . . . districts for the particular race, white or colored. . . .309 under state law, “a chinese citizen of the united states” is classified “among the colored races,” in other words, “brown, yellow, or black.”310 citing the major precedents upholding jim crow laws,311 the court denied the petitioner’s equal protection claim.312 this case illustrates the fact that, although black people were the primary victims of jim crow, other races were also victims. jim crow was a race-conscious but not a race-specific atrocity, albeit black people bore the brunt of it. thus, as in the case of slavery, one could base eligibility for reparations on a familial connection to jim-crow persecution without violating any constitutional prohibition against preferential treatment accorded to a specific racial group. any person—black, latinx, asian or even white—with a familial connection to slavery or jim-crow falls within the reach of the reparation. the fact that the reparation carries the name of a specific racial group—black people—does not convert the reparation into a racial preference if it is applied equally to all descendants.313 nor 305 gong lum v. rice, 275 u.s. 78 (1927) (upholding segregated public schools as applied to children of chinese descent who, like black children, were denied enrollment in white schools). 306 id. at 85. 307 id. at 81–82. 308 id. at 81. 309 id. at 83. 310 id. at 85. 311 id. at 85–87 (citing, inter alia, plessy v. ferguson, 163 u. s. 537 (1896) (holding that a louisiana statute requiring the separation of the white and “colored races” in railway coaches did not violate the fourteenth amendment); roberts v. city of boston, 59 mass. 198 (1849) (holding, in an opinion written by chief justice shaw, that a state law mandating the separation of “colored” and white students did not violate equal protection under the massachusetts constitution). 312 gong lum, 275 u.s., at 87. 313 violence against women act, 34 u.s.c. § 12361 (originally enacted as 42 u.s.c. § 13981), is gender-specific in name but not in operation. see united states v. morrison, 529 u.s. 598, 619–20 (2000) (referring to the violence against women act’s application to “victims of gender-motivated violence,” not just women who face violence). like most of our civil rights laws, it operates symmetrically. for the distinction between symmetrical and asymmetrical civil rights laws, see supra text accompanying notes 32–34. 2023] black boarding academies 849 does the fact that it is likely to have a disproportionately favorable impact on black americans.314 a conservative constitutionalist might argue that redressing jim crow is more racialized than redressing slavery because, unlike slavery, there were no white victims of separate-but-equal. therefore, a reparation based on a familial connection to jim crow provides a racial preference for non-whites rather than a race neutral remedy for the victims of the atrocity. to that extent, reparations for jim crow operate as racial preferences. the fact that not every non-white is eligible for jim crow reparations, the argument continues, does not remove the racial preference. race makes non-whites more eligible for these reparations than whites. this constitutional challenge might be defeated in a number of ways. first, it could be argued that whites are not excluded from jim crow reparations because they are white. they are excluded because their ancestors were not victims of jim crow. were they victims then whites today would be eligible. in addition, the conservative constitutional argument could be countered by linking reparations based on jim crow to reparations based on slavery. arguably, the linkage provides vicarious constitutional support for jim crow reparations. how the two atrocities can be connected is explained in the next section. 3. crafting eligibility for bbas given the constitutional concerns just discussed,315 it may be necessary to link jim crow with slavery in determining eligibility for bbas as well as other forms of black reparations. it may also be prudential to do so; for it avoids giving reparations to any descendant of slavery or jim crow. such expansion of eligibility would also open the floodgates for reparations claims to the detriment of the targeted victims—black americans. jim crow laws alone applied to untold numbers of non-black 314 the violence against women’s act, supra note 313, is also instructive on this point. the act applies to men as well as to women even though in operation it protects more women than men. women simply have a greater need for the act than do men. see morrison, 529 u.s., at 628–35 (souter, j., dissenting, joined by justices with whom stevens, ginsburg, and breyer, jj., dissenting)(describing congress’ findings on the prevalence of violence against women that motivated the violence against women act). only when a law or policy has a discriminatory purpose rather than just a disproportionate effect does it rise to the level of constitutional concern. see, e.g., washington v. davis, 426 u.s. 229, 239–41 (1976). the supreme court has upheld the constitutionality of a school financing system that had a significant disparate impact on latinx students on the ground that, inter alia, the system was established to serve a facially neutral purpose. san antonio indep. sch. dist. v. rodriguez, 411 u.s. 1, 54–55 (1973). and the court has upheld photo id requirements for voting even though the evidence clearly showed that these neutrally crafted rules had a disparate impact on minority voting. crawford v. marion cnty. election bd, 553 u.s. 181, 213–23 (2008) (souter, j., dissenting) (describing the impact of the upheld id requirements on minority voters). the court seems to be importing the common law test of criminal liability—actus non facit reum nisi mens sit rea (the act is not culpable unless the mind is guilty)—into civil liability. there is no mens rea in black reparations. in upholding the constitutionality of black reparations, the court has an opportunity to demonstrate its respect for its own precedents. and if the court does so, it will be one of the few times in which precedents that have regularly disadvantaged african americans can be used to their advantage. 315 see supra text accompanying notes 313–314. 850 colum. j. race & l. [vol. 13:743 persons of color.316 thus, it would be impossible to craft an effective or meaningful reparative regime for african americans based on a generic familial connection to any group persecuted by slavery or jim crow. this is the conundrum the supreme court has forced upon the nation should it discontinue the use of race-specific reparations. one way to shrink the pool of eligible victims to african americans as much as possible without violating constitutional law is to base eligibility on a familial connection to a member of a group persecuted by both slavery and jim crow. this, in fact, is the standard of eligibility i proposed earlier for admission to black boarding academies— “qualified descendants.”317 a dual eligibility standard—slavery and jim-crow— necessarily eliminates most white americans (as they may have descended from victims of slavery but not from victims of jim crow) and most nonblack minorities (as they may have descended from victims of jim crow but fewer from victims of slavery). a black person with a connection to jim crow but not to slavery (e.g., a current resident whose canadian ancestors immigrated to the u.s. in the 1940s) or with a connection to slavery but not to jim crow (e.g., a current resident whose american ancestors immigrated to canada during slavery) could not be a qualified descendant because they could not meet the dual eligibility standard.318 it might be easier for a black american to accept a degree of “disinheritance” under a reparative program that, like black boarding academies, features rehabilitative, or community-oriented, reparations rather than compensatory, or in personam, reparations.319 the “disinherited” can benefit from the former, in which they are “free riders” of sorts, but not from the latter. if the supreme court does what most court observers believe it will do—strike down race-conscious affirmative action—then it will have put black americans and, indeed, the entire nation in a difficult spot. americans, well-intended, might not be able to effectively redress centuries of racial oppression that targeted black people.320 race-specific efforts are needed. they are logical and moral. they should also be legal. iv. conclusion two newborn babies lie side-by-side—one black american and the other white american. without knowing anything more about them, we can be reasonably certain that it will be harder for the black american baby to succeed in the united states. this child will find more racial hurdles on its life’s track, and taller hurdles. this child will receive fewer 316 see, e.g., supra text accompanying notes 305–314. see generally jim crow laws, history.com (updated jan. 11, 2023), https://www.history.com/topics/early-20th-centuryus/jim-crow-laws; urofsky, jim crow law, britannica, https://www.britannica.com/ event/jim-crow-law, [https://perma.cc/gb87-czf2]. 317 see supra text accompanying notes 104–105. 318 disadvantaged, low-income families and children in foster care cannot reasonably be expected to undertake a difficult, time-consuming, and potentially expensive genealogical investigation spanning more than a century. the academies themselves will have to provide this service. see supra part iii. as slavery is the gravamen of the reparative claim, the connection to slavery would seem to be more important than the one to jim crow. 319 for a discussion of the forms of reparations, see supra part ii.a. 320 see supra part ii.b. 2023] black boarding academies 851 cheers from the crowd and less support if it lags or stumbles. this child will be penalized or taken out of the race for any mistakes it makes rather than given another chance. our society steers african americans to the bottom from birth—especially if they are poor. black reparations ought to prioritize the most vulnerable living victims of slavery and jim crow. starting black reparations in such a limited fashion flies in the face of all those who, like myself, had hoped that black reparations could effectuate transformative racial justice in our country. but having taken a great deal of time to analyze and think through the matter, i now reluctantly conclude that black reparations cannot deliver that mythical third reconstruction.321 the american race problem is too big for black reparations alone to handle. it would take decades of massive amounts of government spending and the sustained moral commitment of the american people to realize transformative racial justice in this country. the inflationary impact of trillions of dollars of government spending makes transformative reparations a prohibitive proposition. hence, african americans are unlikely to receive all the reparations that are rightfully due or urgently needed to redress the lingering effects of slavery and jim crow. the only option, if we are to have black reparations, is to prioritize as victims of other atrocities have had to do.322 this article attempts to make the case for prioritizing low-income black children. it proposes an education reparation—black boarding academies—that will enable these precious souls, especially those at risk of falling into the dreaded foster care system, to thrive rather than merely survive by giving them a safe and nurturing environment in which to develop leadership skills. given the cost of building and operating bbas and finite reparatory payments, it seems prudential to plan for postreparations fundraising. there are, in fact, myriad public and private 321 the long-awaited third reconstruction is sorely needed to complete the march to racial justice that began with the first reconstruction (1865–1877) and picked up in the second reconstructions (1954–1972). both reconstructions were responsive to racial oppression, the first reconstruction ending slavery with the enactment of the reconstruction amendments to the constitution and the second reconstruction ending jim crow with the enactment of the civil rights acts of the 1960’s and early 1970’s. likewise responding to racial injustice, the third reconstruction is charged with ending the lingering effects of slavery and jim crow—what i have called “transitional racial justice”—some of which effects are discussed in part ii.b supra. on the transformative changes in our society wrought by the first reconstruction and second reconstruction, see, e.g., w. e. b. du bois, black reconstruction (1935) (studying the post-civil war reconstruction era); juan williams, eyes on the prize: america's civil rights years, 1954-1965 (1987) (telling the story of the civil rights era through the people who lived it). on the third reconstruction, see, e.g., david prior, the concept of a third reconstruction, h-civ war (apr. 16 2021), https://networks.h-net.org/node/4113/blog/h-civwar-authors-blog/7580046/ concept-third-reconstruction [https://perma.cc/9qxa-na4m]; peniel e. joseph, the perils and promise of america’s third reconstruction, time (sept. 15, 2022, 6:00 am), https://time.com/6211887/america-third-reconstruction/ [https://perma.cc/6q8u-gmx7]. 322 don tamaki, a civil rights lawyer who worked on reparations for japanese americans interned during world war ii and the only non-black member of the california reparations task force, noted that organizers of the japanese american redress movement had to grappled with similar questions about determining eligibility. “we had to exclude groups too within our community . . . practical and very difficult decisions were made.” lil kalish, california task force: reparations for direct descendants of enslaved people only, (mar. 30, 2022), https://calmatters.org/california-divide/2022/03/california-reparations-taskforce-eligibility/ [https://perma.cc/cm7m-lhh7]. 852 colum. j. race & l. [vol. 13:743 funding sources available. finally, the standard of eligibility for admissions to bbas—a familial connection to a member of a group persecuted by both slavery and jim crow—is dictated by the supreme court’s impending decision to discontinue affirmative action in education. all black reparations must be attentive to this existential threat coming from the supreme court. however, even if the supreme court were to unexpectedly uphold affirmative action under federal law, the legal risk to black reparations will not go away. nine states, including california and florida, have already decided to ban race-conscious admissions in public school.323 the eligibility test posited in this article should work at the state level as well. having for many years studied and written about worldwide responses to past atrocities—what scholars call “post-conflict justice”—i well appreciate the difficulty of resolving our country’s own past atrocities. numerous issues are raised. the importance of these issues is matched only by their complexity. 323 see, e.g., kelsey butler & patricia hurtado, affirmative action end will crush the diversity talent pipeline, bloomberg l., (oct. 30, 2022), https://news.bloomberglaw.com/us-law-week/affirmative-action-end-will-crush-thediversity-talent-pipeline [https://perma.cc/qys4-c5ff]. columbia journal of race and law vol. 11 january 2021 no. 1 article racial discrimination in nationality laws: a doctrinal blind spot of international law? michelle foster* and timnah rachel baker† statelessness has historically been overlooked by the international community, but it is now a significant focus of the work of academics, advocates, and international institutions. the united nations high commissioner for refugees’ campaign to end statelessness by 2024 is now past its half-way point. yet, while it is understood that statelessness is often the result of systemic racial discrimination, the relationship between statelessness, nationality laws, and international norms of racial non-discrimination has received very little scholarly attention. this article addresses the lacuna in existing legal scholarship, and indeed in jurisprudential analysis, of racial discrimination in nationality matters, by undertaking the first in-depth examination of the history, interpretation, and application of article 1(3) of the international convention on the elimination of all forms of racial discrimination (icerd), and its consistency with the jus cogens prohibition on racial discrimination. while focused explicitly on a particular treaty provision, this analysis raises * ll.b., bcom (hons) (university of new south wales); ll.m., s.j.d. (university of michigan); professor and director, peter mcmullin centre on statelessness, melbourne law school. the authors are very grateful to hannah gordon, b.a., j.d. (university of melbourne) research assistant, peter mcmullin centre on statelessness for exceptional research assistance. we are also very grateful to professor e. tendayi achiume, ucla, and participants at the world conference on statelessness, the hague, june 2019, for very helpful comments on an earlier draft. any errors or omissions remain our own. † b.a./ll.b. (monash university); ll.m. (boston college); ph.d. candidate (the university of sydney law school). 84 colum. j. race & l. [vol. 11:83 larger and vital questions about race, nationality, and statelessness—matters that are historically pertinent and have profound ongoing relevance. the article provides a principled, doctrinal interpretive framework within which to “read down” the problematic article 1(3) so that the icerd may be invoked to combat racially discriminatory nationality laws. the clarification and articulation of legal norms around article 1(3), and a justification for its narrow interpretation, add to the existing legal tools for combatting discriminatory citizenship deprivation and denial and narrowing the boundaries of state discretion. i. introduction........................................................................85 ii. racial discrimination and nationality laws ..................89 iii. nationality matters: between state sovereignty and human rights .........................................................97 iv. article 1(3): history and current approaches.............. 107 a. the drafting history of article 1(3) of icerd...... 108 b. committee on the elimination of racial discrimination and article 1(3): toward a justification............................................ 114 v. jus cogens as an interpretive principle in the context of racial discrimination and nationality practice...... 127 a. impact of conflict with a jus cogens norm .......... 128 b. content of the jus cogens norm of racial non-discrimination................................................ 131 vi. toward a principled interpretation of article 1(3)....... 140 vii. conclusion .................................................................... 145 2021] nationality laws 85 i. introduction historically and rhetorically, it is understood that statelessness is often the result of systemic racial discrimination,1 and that when such discrimination entails the denial or deprivation of nationality, it can operate as the first step in larger programs of persecution.2 yet, the relationship between statelessness, nationality laws, and international norms of racial non-discrimination has received little scholarly attention,3 notwithstanding that it is estimated that seventy-five percent of the 10–15 million stateless persons globally belong to a minority group. 4 given that the prohibition on racial discrimination is broadly considered a jus cogens norm of 1 the classic example is the denationalization of german jews by the nazi regime. see infra note 2. see also kristy a. belton, statelessness in the caribbean: the paradox of belonging in a postnational world 27– 28 (2017); amal de chickera & joanna whiteman, addressing statelessness through the rights to equality and non-discrimination, in solving statelessness 99 (laura van waas & melanie j. khanna eds., 2017). 2 patrick thornberry, the international convention on the elimination of all forms of racial discrimination: a commentary 341 (2016) (“morsink contextualizes the drafting of the right in the udhr [universal declaration of human rights] as part of the reaction to nazi policy that stripped jews of their citizenship, citing conot for the claim that deprivation of citizenship was more important in sealing their fate than the nuremberg laws.” (citing robert e. conot, justice in nuremberg (1983))); id. at 341 n.245 (“[t]o be without a nationality or not to be a citizen of any country at all is to stand naked in the world of international affairs. it is to be alone as a person, without protection against the aggression of states . . . . as . . . nazi practices show, the right to a nationality is not the luxury some people think it is.”). 3 indeed, this is true of nationality, citizenship, and race discrimination more broadly. for example, the american journal of international law has published a total of three articles on nationality and citizenship. see peter j. spiro, a new international law of citizenship, 105 am. j. int’l l. 694 (2011); sean d. murphy, u.s. interpretation of continuous nationality rule, 96 am. j. int’l l. 706 (2002); marian nash, loss of nationality: expatriating statute and administrative standard of evidence, 87 am. j. int’l l. 598 (1993). it has published one article on icerd. see theodor meron, the meaning and reach of the international convention on the elimination of all forms of racial discrimination, 79 am. j. int’l l. 283 (1985). 4 u.n. high comm’r for refugees, this is our home: stateless minorities and their search for citizenship 1 (nov. 2017). the report notes that: this percentage is based on statistics for stateless populations included in unhcr’s 2016 global trends report that are known to belong to an ethnic, religious or linguistic minority. it does not account for minority groups that compose a proportion of a known stateless population in a country, but do not form the majority of that population. the percentage also does not include the many stateless minority groups for which unhcr does not have adequate statistical data. 86 colum. j. race & l. [vol. 11:83 international law, meaning it is “a norm from which no derogation is permitted,”5 how is it that national legal systems continue to permit race-based discrimination—in form or effect— in matters of nationality? and more poignantly, why is the international community apparently reticent to unequivocally critique racialized nationality laws, particularly when their application has produced large numbers of stateless persons? for instance, while the severe persecution and forcible deportation of rohingya people from myanmar in 2014 and 2017 has recently been widely condemned by the international community,6 very little attention was directed at first instance to the racially discriminatory denationalization of rohingya people that is a root cause of the predicament.7 this “racial aphasia,” that is, a “collective inability to speak about race” 8 in the context of nationality (at least until it reaches a point of crisis), may reflect a perennial tension between nationality as it pertains to individual rights (for example, the right to a nationality and the right not to be deprived of it arbitrarily) and nationality as it is reserved to the domain of states.9 despite the “astounding shift in international law from protecting the sovereignty of racism at the beginning of the twentieth century to openly combatting it by the beginning of the new millennium,”10 the sovereign fortress of nationality laws still seems somewhat impervious to direct attack, even where such laws contravene anti-racial discrimination norms. this tension is reflected in the very text of the international convention on the elimination of all forms of 5 spiro, supra note 3, at 716 n.144. 6 see, e.g., s.c. pres. statement 2017/22 (nov. 6, 2017); human rights council res. 37/32, u.n. doc. a/hrc/res/37/32 (mar. 23, 2018); hum. rts council, rep. of the working group on the universal periodic review of its twenty-third session, u.n. doc. a/hrc/31/13 (dec. 23, 2015); g.a. res. 70/233, situation of human rights in myanmar (mar. 4, 2016). 7 early international reports concerning the denationalization of rohingya people made few references to racial discrimination. see, e.g., hum. rts. council, rep. of working group on the universal periodic review of its tenth session u.n. doc. a/hrc/17/9 (mar. 24, 2011). see also g.a. res. 66/230, situation of human rights in myanmar (dec. 24, 2011); g.a. res. 65/241, situation of human rights in myanmar (dec. 24, 2010). 8 debra thompson, through, against and beyond the racial state: the transnational stratum of race, 26 cambridge rev. int’l aff. 133, 134–35 (2013). we are grateful to e. tendayi achiume for alerting us to this reference. 9 for a discussion on the tension between human rights and state sovereignty, see suzanne egan, the human rights treaty system: law and procedure (2011). 10 thompson, supra note 8, at 133. 2021] nationality laws 87 racial discrimination (icerd). 11 although icerd generally provides strong protections against racial discrimination, 12 including in relation to “the right to nationality” in article 5,13 articles 1(2) and 1(3) introduce limitation provisions. article 1(2) provides that the convention does not apply to distinctions between nationals and non-nationals, while article 1(3) provides that “[n]othing in this convention may be interpreted as affecting in any way the legal provisions of states parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.”14 on its face, article 1(3) might suggest that state laws and practices that target more than one nationality would not be in breach of the convention, whether “nationality” means national or ethnic origin, or enjoyment of citizenship of a particular state. according to this interpretation, a country that has racialized citizenship laws could claim that its laws and practices affect multiple “nationalities” and therefore do not violate the convention. relatedly, where a state has denationalized certain ethnic groups, it might claim that the denationalized individuals are not citizens and invoke article 1(2). like article 1(2), article 1(3) on its face severely limits the “universalist ambition”15 of the convention. the international community’s historic reluctance to properly limit article 1(3)’s scope in a robust and principled manner may mean that article 1(3), or its animating assumptions, continues to exert an influence on the evolution of nationality laws and practices. so long as the notion persists that matters of nationality exist within the domaine réservé of states, largely untrammeled by norms of non-discrimination, states will 11 international convention on the elimination of all forms of racial discrimination, dec. 21, 1965, t.i.a.s. no. 94-1120, 660 u.n.t.s. 195 [hereinafter icerd]. 12 id. art. 1(1) (“in this convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”). 13 id. art. 5 (“in compliance with the fundamental obligations laid down in article 2 of this convention, states parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights . . . other civil rights, in particular . . . the right to nationality . . . .”) 14 id. art. 1(3). 15 thornberry, supra note 2, at 140. 88 colum. j. race & l. [vol. 11:83 be able to rely on sovereignty-based claims in devising and operating their nationality laws. to be sure, in recent years—often informed by general recommendations issued by the committee on the elimination of racial discrimination (committee)—numerous scholars have advanced narrowly construed interpretations of article 1(3). however, these have often been put forward without robust justification. to a certain degree, the discourse around article 1(3) appears to be self-referential, with scholars referring both to each other and to the same committee general recommendation thirty (examined further below) as if caught in an echo chamber. the dearth of sustained scholarly attention around article 1(3) makes it difficult to convincingly mount the argument that states are constrained with respect to discriminatory nationality laws. at the same time, scholars point to racial nondiscrimination as a jus cogens of international law in building the case that states are constrained in matters of nationality, but often without critical reflection. as john tobin writes, “[a]ll too often . . . [the] process of defining the content of a human right is accompanied by scant, if any, explanation of the methodology used to generate the interpretation offered.” 16 the same, according to tobin, may be said of some of the work of treaty bodies. 17 new grounds are needed upon which to advance a narrow reading of article 1(3), as well as a more developed understanding of the intersection between the prohibition of racial discrimination and the interpretive principles around jus cogens in the context of nationality. this article addresses the lacuna in existing legal scholarship, and indeed in jurisprudential analysis, of racial discrimination in nationality matters, by undertaking the first in-depth examination of the history, interpretation, and application of article 1(3) of icerd and its consistency with the jus cogens prohibition on racial discrimination. in doing so, this article offers a nuanced reading of article 1(3), and suggests that the peremptory norm of racial non-discrimination provides a robust justification for a narrowly circumscribed construal of article 1(3). while focused explicitly on a particular treaty provision, this analysis raises larger and vital questions about race, nationality, and statelessness—matters that are historically pertinent and have profound ongoing relevance. this 16 john tobin, seeking to persuade: a constructive approach to human rights treaty interpretation, 23 harv. hum. rts. j. 1, 1 (2010). 17 see id. at 2. 2021] nationality laws 89 article puts forward the thesis that to the extent that matters of nationality are still considered a balancing act between individual rights and the prerogative of states, the interpretive jus cogens principle, as it relates to norms of racial nondiscrimination, tips the balance in favor of equality and nondiscrimination. this article is organized as follows. part ii considers the significance of racial discrimination in the context of nationality regulation, noting historical and contemporary manifestations of racialized citizenship. in part iii, the article briefly canvasses the intersection between nationality matters within the reserved jurisdiction of states and the evolution of human rights law, examining the ways in which international law has narrowed states’ prerogative in this domain. part iv turns to a detailed examination of article 1(3), considering first its drafting history, and then the committee’s treatment of the article, and in particular general recommendation thirty. this section examines all individual and inter-state communications that have touched on nationality and provides an overview of relevant concluding observations over a period of thirty years. this part concludes that the committee has, to date, failed to articulate a clear and persuasive position that satisfactorily reconciles articles 1(3) and 5(d)(iii). in part v, the article develops the argument that the jus cogens norm of prohibited racial discrimination can operate as an interpretative principle in the context of racialized nationality laws and practices. part v examines the content of the norm and demonstrates that deprivation of nationality can be considered a form of systemic racial discrimination. finally, part vi considers the effects or consequences of racial non-discrimination as a jus cogens norm, and develops an interpretation of article 1(3) in light of the jus cogens status of racial non-discrimination as a strong interpretive principle. ii. racial discrimination and nationality laws human rights inhere in a person by virtue of his or her humanity; indeed, international human rights instruments do not generally condition enjoyment of rights on citizenship. yet, in practice it remains the case that citizenship often operates as a prerequisite for access to basic human rights, 18 famously 18 see, e.g., david owen, citizenship and human rights, in the oxford handbook on citizenship 247, 250 (ayelet sachar et al. eds., 2017). 90 colum. j. race & l. [vol. 11:83 described by german political theorist hannah arendt as “the right to have rights.”19 as numerous scholars have noted, while statelessness20 itself is a serious human rights violation, the condition of statelessness can also leave people vulnerable to other profound human rights violations.21 notwithstanding this and despite a renewed focus on statelessness as a pressing and pervasive global human rights issue,22 the international community continues to struggle to articulate statelessness as a problem significantly animated by racial and ethnic discrimination. 23 in its 2017 #ibelong campaign report, which focused on discrimination against minority groups, the united nations high commissioner for refugees (unhcr) pointed out that discrimination lies at the heart of most cases of statelessness; it is both a cause and consequence of statelessness.24 as another scholar writes, “most stateless populations lack legal nationality because they are part of a marginalised group that faces systematic discrimination and oppression from the start.”25 yet, racial discrimination has not 19 hannah arendt, the origins of totalitarianism 296 (1968). 20 see convention relating to the status of stateless persons art. 1, sept. 28, 1954, 360 u.n.t.s. 117 [hereinafter 1954 statelessness convention] (defining the term “stateless person” as a person “who is not considered as a national by any state under the operation of its law”). 21 see inst. for statelessness & inclusion, the world’s stateless 29 (2014) (arguing that statelessness is a gateway to further human rights abuses). see also lindsey n. kingston, fully human: personhood, citizenship, and rights (2019) [hereinafter kingston, fully human] (arguing that statelessness is an example of how basic human rights are threatened whenever a person’s relationship to the state is weakened or destroyed). 22 see generally michelle foster & hélène lambert, statelessness as a human rights issue: a concept whose time has come, 28 int’l j. refugee l. 564 (2016) (analyzing the developments in international campaigns to address statelessness). 23 other relevant causes of statelessness include gender discrimination, state succession, gaps in nationality laws, conflicting nationality laws, migration, and administrative barriers to birth registration. see michelle foster et al., part one: the protection of stateless persons in australian law—the rationale for a statelessness determination procedure, 40 melbourne l. rev. 401, 408–09 (2017). 24 de chickera & whiteman, supra note 1, at 103. 25 see lindsey n. kingston, worthy of rights: statelessness as a cause and symptom of marginalisation, in understanding statelessness 17 (tendayi bloom et al. eds., 2017) [hereinafter kingston, worthy of rights]. see also lindsey n. kingston & saheli datta, strengthening the norms of global responsibility: structural violence in relation to internal displacement and statelessness, 4 glob. resp. to protect 475 (2012) (emphasizing the political vulnerability of stateless people). 2021] nationality laws 91 been a significant focus of the unhcr #ibelong campaign, which aims to end statelessness by 2024, nor of the work of the wide array of international actors engaged in the campaign. gender discrimination and childhood statelessness have been (appropriately) explicitly identified as core, “urgent” issues in resolving statelessness,26 with dedicated campaigns and much attention from relevant international actors, including treaty bodies. racial discrimination, however, has not been identified in the same manner despite its undeniably pivotal role in the creation of statelessness in the modern era.27 comprehensive work has been undertaken in relation to gender discrimination in nationality laws, which has produced widely accessible information about the number and identity of countries that retain such discrimination.28 by contrast, no such analysis has 26 see u.n. high comm’r for refugees et al., urgent action needed to reform gender discriminatory nationality laws causing childhood statelessness (aug. 22, 2019), https://www.unhcr.org/en-au/news/press/2019/8/5d5e63d9456/urgent-actionneeded-reform-gender-discriminatory-nationality-laws-causing.html [https://perma.cc/c4ut-s9ry]. 27 rohingya people represent one of the largest known stateless populations, underlining the relevance of discrimination based on ethnicity and race to statelessness today. there is no question that race discrimination underpins their predicament. indeed, the international court of justice (icj) issued interim measures in january 2020 in relation to gambia’s case against myanmar which claims that myanmar has violated the genocide convention. see application of the convention on the prevention and punishment of the crime of genocide (gam. v. myan.), order, 2020 i.c.j. 178 (jan. 23). article i of the genocide convention, provides that all states parties undertake “to prevent and to punish” the crime of genocide. id. ¶ 49. article ii provides that genocide means a list of relevant acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” id. the icj held: bearing in mind myanmar’s duty to comply with its obligations under the genocide convention, the court considers that, with regard to the situation described above, myanmar must, in accordance with its obligations under the convention, in relation to the members of the rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of article ii of the convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group. id. ¶ 79. see also, convention on the prevention and punishment of the crime of genocide, dec. 9, 1948, 102 stat. 3045, 78 u.n.t.s. 277. 28 see, e.g., u.n. high comm’r for refugees, background note on gender equality, nationality laws and statelessness 2019 (mar. 8, 2019), https://www.refworld.org/docid/5c8120847.html (demonstrating that 92 colum. j. race & l. [vol. 11:83 been undertaken regarding the prevalence of direct or indirect racial discrimination in nationality laws, nor is there an equivalent list of countries that maintain explicitly or indirectly racially discriminatory nationality laws. this may well explain why, of the 252 pledges made by states at the unhcr highlevel segment on statelessness in october 2019, only uganda’s pledge related to racial discrimination.29 this lack of focus on racial discrimination is perhaps unsurprising when considering that, as e. tendayi achiume convincingly argues, “racial equality is marginal to the global human rights agenda.”30 as she notes, despite wide ratification of icerd, having now reached 182 states parties,31 “racial equality has seemingly drifted to the margins” of the human rights agenda,32 including in our view the campaign to eradicate statelessness. if racial discrimination is both a cause and consequence of statelessness, 33 nationality laws and practices of certain countries can both enshrine and enable such discrimination. this insidious cycle34 of “racialized citizenship”35 can be seen in many instances of mass denial or deprivation of citizenship, even as the significant steps have been taken to address gender discriminatory nationality laws in the international community) [https://perma.cc/2tbv-bwt8]. 29 u.n. high comm’r for refugees, results of the high-level segment on statelessness, (oct. 2019), https://www.unhcr.org/ibelong/results-of-the-highlevel-segment-on-statelessness [https://perma.cc/8qxs-fwve]. 30 e. tendayi achiume, putting racial equality onto the global human rights agenda, 28 sur int’l j. on hum. rts. 141, 142 (2018) [hereinafter achiume, racial equality]. 31 u.n. treaty collection, international convention on the elimination of all forms of racial discrimination, https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv2&chapter=4&clang=_en [https://perma.cc/g5aj-7df9] (last visited nov. 22, 2020). 32 achiume, racial equality, supra note 30, at 144. 33 see, e.g., u.n. off. high comm’r, forum on minority issues eleventh session, statelessness: a minority issue, concept note 3 (nov. 29–30, 2018), https://www.ohchr.org/documents/hrbodies/hrcouncil/minorityissues/sessio n11/conceptnote.pdf [https://perma.cc/6r3y-3aa9] 34 kingston, worthy of rights, supra note 25. see also de chickera & whiteman, supra note 1, at 105 (“[i]n addition to continuing to face discrimination on the basis of pre-existing characteristics, a person’s status as stateless often becomes a basis for further discrimination.”). see kingston, fully human, supra note 21, at 57–78; brad blitz & maureen lynch, statelessness and the deprivation of nationality, in statelessness and citizenship: a comparative study on the benefits of nationality 1 (brad k. blitz & maureen lynch eds., 2011). 35 david scott fitzgerald, the history of racialized citizenship, in the oxford handbook of citizenship 129, 130 (ayelet sachar et al. eds., 2017). 2021] nationality laws 93 precise mechanisms of the discrimination may vary from case to case. racialized citizenship often intersects with gender and religious discrimination. 36 it can manifest both directly and indirectly, and across distinct “moments” of the citizenship cycle, from acquisition, to naturalization, to deprivation of citizenship.37 across all of these moments or sites of racialized citizenship, writes david scott fitzgerald, “racialization may consist of negative discrimination against a particular group and/or a positive preference that favors a particular group.”38 the first moment presents differently depending on whether a state adopts jus soli (right of soil, or birthright citizenship) as its guiding principle, or jus sanguinis (the principle of citizenship by descent).39 at the second stage, naturalization or conferral of citizenship can be restricted, or denied, for certain groups. 36 see generally special rapporteur on contemp. forms of racism, racial discrimination, xenophobia and related intolerance, report, u.n. doc. a/hrc/38/52 (apr. 25, 2018) [hereinafter special rapporteur report on contemporary forms of racism]. see also e. tendayi achiume, governing xenophobia, 51 vand. j. transnat’l l. 333, 353–55 (2018) [hereinafter achiume, governing xenophobia]. achiume notes that “the absence of religion from article 1’s otherwise broad definition of racial discrimination” undermines “icerd’s capacity comprehensively to address the contemporary problem of xenophobia.” id. however, she also notes that the committee has found that article 1 may apply to cases involving religious discrimination in some cases. id. see, e.g., comm. on elimination racial discrimination, general recommendation thirty-two, on the meaning and scope of special measures in the international convention on the elimination of racial discrimination, ¶ 7, u.n. doc. cerd/c/gc/32 (sept. 24, 2009) [hereinafter general recommendation thirty-two]; radha govil & alice edwards, women, nationality and statelessness, in nationality and statelessness under international law 169 (alice edwards & laura van waas eds., 2014); comm. on elimination racial discrimination, rep. on the fifty-sixth session (mar. 6– 24, 2000) fifty-seventh session (jul. 31–aug. 25, 2000), u.n. doc. a/55/18, at 152 (aug. 25 2000); comm. on elimination discrimination against women, general recommendation no. thirty-two on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, u.n. doc. cedaw/c/gc/32 (nov. 14, 2014). 37 see fitzgerald, supra note 35. 38 id. 39 id. at 131. for an interesting discussion of jus sanguinis as being “historically tainted because it is rooted in practices and conceptions that rely on ethno-nationalist ideas about political membership,” see costica dumbrava, bloodlines and belonging: time to abandon ius sanguinis?, in debating transformations of national citizenship 73, 73 (rainer bauböck ed., 2018). but see rainer bauböck, ius filiationis: a defence of citizenship by descent, in debating transformations of national citizenship, supra, at 83 (noting that the following contributions to this collection challenge dumbrava’s view on this question). 94 colum. j. race & l. [vol. 11:83 denationalization or deprivation of citizenship marks the third potential site for racialized citizenship.40 while some historical cases of racialized citizenship laws are well known, examined, and long since rejected, 41 many contemporary manifestations are under-examined. unhcr opines that at least twenty states have nationality laws that permit denial or deprivation of nationality on discriminatory grounds including race,42 yet no comprehensive analysis of direct and indirect racial discrimination in nationality laws has been undertaken, and hence the true scope of the problem is unknown. the most observable cases of racialized citizenship (often leading to statelessness) are those resulting from manifestly discriminatory nationality laws. rohingya people, considered among the world’s most persecuted ethnic minority groups,43 have been rendered stateless en masse by myanmar.44 the plight of rohingya people is in large measure reflected in and perpetuated by the passing of myanmar’s discriminatory 1982 citizenship law 45 and longstanding discriminatory 40 fitzgerald, supra note 35, at 131–32. 41 see generally ian haney lópez, racial restrictions in the law of citizenship, in white by law: the legal construction of race 27 (1996) (regarding the united states); james jupp, from white australia to woomera: the story of australian immigration (2002) (regarding australian racialized citizenship laws). 42 u.n. high comm’r for refugees, global action plan to end statelessness: 2014–2024, 16 (2017), https://www.unhcr.org/54621bf49.html [https://perma.cc/ae2s-sz32]. see also de chickera & whiteman, supra note 1, at 101–03. 43 shatti hoque, myanmar’s democratic transition: opportunity for transitional justice to address the persecution of the rohingya, 32 emory int’l l. rev. 551 (2018) (citing the rohingyas: the most persecuted people on earth?, economist (june 13, 2015), https://www.economist.com/asia/2015/06/13/themost-persecuted-people-on-earth) [https://perma.cc/t2vk-l8sf]. see also katie young, who are the rohingya and what is happening in myanmar?, amnesty int’l (sept. 26, 2017), https://www.amnesty.org.au/who-are-the-rohingyarefugees [https://perma.cc/3sza-n97r]. 44 see generally amnesty int’l, myanmar: amnesty international annual report 2016 (2017), https://www.amnesty.org/download/documents/asa1657612017english.pdf [https://perma.cc/3bfu-petx] (describing several instances of discrimination and persecution). 45 nyi nyi kyaw, unpacking the presumed statelessness of rohingyas, 15 j. immigr. & refugee stud. 269, 272 (2017) (“the main academic and policy argument in the past decades is that the rohingya are not recognized as citizens of myanmar because of the discriminatory 1982 law.”) (citations omitted). 2021] nationality laws 95 implementation practices. 46 the citizenship law and its implementation are “at the heart of a discriminatory system” which left not only rohingya people but also other non-rohingya muslim minorities without citizenship.47 another blatantly discriminatory instance of mass denationalization involves dominicans of haitian descent in the dominican republic. in 2010, a new dominican constitution inscribed the already precarious citizenship status of haitian dominicans by providing that the children of persons “in transit or residing illegally in the dominican territory” 48 were not considered citizens of the dominican republic.49 prior to 2010, the 1929 constitution of the dominican republic operated under the principle of jus soli, thus recognizing as dominican most persons born within the territory of the country.50 in pierre v. no. judgment 473/2012, the dominican constitutional court ruled that children of “irregular migrants” were not considered 46 id. at 282 (“[t]he 1982 law—however discriminatory its textual provisions are according to international human rights standards—should not be regarded as the sole cause of the rohingya problem.”). 47 irish ctr. for hum. rts., crimes against humanity in western burma: the situation of the rohingya, 10 (2010); u.n. high comm’r for refugees, statelessness and the rohingya crisis 2 (nov. 2017), https://www.refworld.org/docid/5a05b4664.html [https://perma.cc/c976-m7wt]. the authors note that approximately one million, largely rohingya people, within the rakhine state are stateless “due to the restrictive provisions and application of the myanmar citizenship law which primarily confers citizenship on the basis of race.” see also hum. rts. council, rep. of the detailed findings of the independent international fact-finding mission on myanmar, ¶¶ 458– 748 u.n. doc. a/hrc/39/crp.2 (2018) (finding that based on its overall assessment of the situation in myanmar since 2011, and particularly in rakhine state, the extreme levels of violence perpetrated against rohingya people in 2016 and 2017 resulted from the “systemic oppression and persecution of the rohingya,” including the denial of their legal status, identity, and citizenship, and followed the instigation of hatred against rohingya people on ethnic, racial, or religious grounds). 48 constitución de la política de la república dominicana [constitution] jan. 26, 2010, art. 18(3) (dom. rep.). 49 ernesto sagas & ediberto roman, who belongs: citizenship and statelessness in the dominican republic, 9 geo. j. l. & mod. critical race persp. 35, 35 (2017). 50 nicia c. mejia, dominican apartheid: inside the flawed migration system of the dominican republic, 18 harv. latino l. rev. 201, 202–03 (2015) (noting an exception to the principle of jus soli for those born to foreign diplomats or foreigners who were “in transit”). see also richard t. middleton, the operation of the principle of jus soli and its effect on immigrant inclusion into a national identity: a constitutional analysis of the united states and the dominican republic, 13 rutgers race & l. rev. 69, 70 (2011). 96 colum. j. race & l. [vol. 11:83 dominican, thereby excluding them from citizenship.51 in effect, the decision meant that the constitution (and its interpretation) shifted from operating under a jus soli principle—redefining dominican citizenship to exclude and render stateless thousands of haitian dominicans.52 as has been noted, “[t]he current legal conceptions of dominican citizenship reflect widespread cultural practices and historical trends, in which haitians have historically been portrayed as racialized ‘others.’”53 more recently, the 2019 update of the national register of citizens in assam, india, has been described as “possibly the largest exercise in creating conditions of statelessness” 54 in history.55 the most recent draft list excluded 1.9 million people, disproportionately impacting bengali-speaking muslims (with other religious and ethnic minorities caught in the intersectional xenophobic expulsion). 56 the subsequent enactment of the citizenship amendment act by the indian parliament has been widely condemned as embodying direct discrimination against 51 pierre v. no. judgment 473/2012, tc/0168/13 1, 98 (dom. rep. trib. const. 2013). see also u.n. high comm’r for refugees, submission by the u.n. high comm’r for refugees for the office of the high comm’r for hum. rts.’ compilation rep., universal periodic rev.: haiti, at 2 (mar. 2016) (estimating that 133,000 dominicans of haitian descent were rendered stateless by the decision of the constitutional court). 52 see jonathan m. katz, what happened when a nation erased birthright citizenship, atlantic (nov. 12, 2018), https://www.theatlantic.com/ideas/archive/2018/11/dominican-republic-erasedbirthright-citizenship/575527/ [https://perma.cc/6chr-tbdk]; alan yuhas, dominicans of haitian descent turned into ‘ghost citizens’, says amnesty, guardian (nov. 19, 2015), https://www.theguardian.com/world/2015/nov/19/dominican-republic-violatedhuman-rights-haitians-citizens [https://perma.cc/s9ag-z5e9]. 53 sagas & roman, supra note 49, at 37. see, e.g., mejia, supra note 50; belton, supra note 1. 54 priya pillai, of statelessness, detention camps and deportations: india and the “national register of citizens” in assam, opinio juris (jul. 12, 2019), https://opiniojuris.org/2019/07/12/of-statelessness-detention-camps-anddeportations-india-and-the-national-register-of-citizens-in-assam [https://perma.cc/7gsw-9ssv]. 55 see also rohini mohan, inside india’s sham trials that could strip millions of citizenship, vice news (jul. 29, 2019), https://news.vice.com/en_us/article/3k33qy/worse-than-a-death-sentence-insideindias-sham-trials-that-could-strip-millions-of-citizenship [https://perma.cc/4de7-4h8s]. 56 see generally anushka sharma, contextualizing statelessness in the indian legal framework: illegal immigration in assam, 8 christ u. l.j. 25 (2019) (arguing that current legal frameworks are not equipped to address statelessness); amit ranjan, national register of citizen update: history and its impact, asian ethnicity, june 28, 2019, at 1. 2021] nationality laws 97 muslims, further underlining the discrimination at the heart of the contemporary citizenship crisis in india.57 additionally, many african commonwealth countries which, having broadly inherited jus soli systems of citizenship, almost universally replaced birthright citizenship with laws based on citizenship by descent following independence, often “implicitly or explicitly intended to exclude potential citizens of non-african descent,” 58 and often on a racially or ethnically discriminatory basis. 59 the legacy of colonization and decolonization can bring about entrenched cases of racialized statelessness, as can other forms of state succession. 60 as addressed further below, it is important to note that such cases can be characterized by direct or indirect forms of racial discrimination,61 and can occur in the absence of discriminatory intent.62 iii. nationality matters: between state sovereignty and human rights under traditional notions of state sovereignty, decisions relating to the conferral, withdrawal, and regulation of nationality are, in principle, not a matter for international law.63 57 see farrah ahmed, arbitrariness, subordination and unequal citizenship, 4 indian l. rev. 121 (2020). see also abhinav chandrachud, secularism and the citizenship amendment act, 4 indian l. rev. 138 (2020); monika verma, citizenship (amendment) act, 2019: the pernicious outcomes of the altering equation of citizenship in india, conflict, just., decolonization: critical stud. inter-asian soc’y (june 24, 2020), https://www.researchgate.net/publication/342436363_citizenship_amendment _act_2019_the_pernicious_outcomes_of_the_altering_equation_of_citizenshi p_in_india [https://perma.cc/za43-jq5a]; atul alexander, evaluating the citizenship amendment act, 2019 in india: perspectives from international refugee law, int’l l. under constr. (feb. 27, 2020), https://grojil.org/2020/02/27/evaluating-the-citizenship-amendment-act-2019in-india-perspectives-from-international-refugee-law/ [https://perma.cc/c3rf7jkn]. 58 bronwen manby, citizenship in africa 76 (2018). 59 see e.g., the public order act [constitution] dec. 31, 1965, (sierra leone); constitution of the republic of uganda [constitution] oct. 8, 1995, (uganda). see generally manby, supra note 58, at 193–99. 60 de chickera & whiteman, supra note 1, at 101. 61 icerd, supra note 11, art 1(1) (requiring states to eliminate discrimination in purpose or effect, as well as discrimination that occurs in the absence of discriminatory intent). see, e.g., thornberry, supra note 2, at 114. 62 special rapporteur report on contemporary forms of racism, supra note 36, ¶ 18. 63 manley o. hudson (special rapporteur of the international law commission) rep. on nationality, including statelessness, at 7, u.n. doc. a/cn.4/50 (1952) (“in principle, questions of nationality fall within the domestic 98 colum. j. race & l. [vol. 11:83 rather, nationality is a matter “for each state to decide”64 within the “reserved domain”65 of states. the 1930 hague convention on certain questions relating to the conflict of nationality laws (1930 hague convention) did not create an individual right to nationality; states alone grant and withdraw nationality. 66 article 1 provides that it is “for each state to determine under its own law who are its nationals.”67 according to article 2, “[a]ny question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that state.”68 however, article 1 also provides that “[t]his law shall be recognised by other states in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.”69 accordingly, even within the traditional framework, the exclusive right of states in nationality matters has long been understood as dependent on (and tempered by) the development of international relations. in 1923, in the nationality decrees in jurisdiction of each state.”). see also nationality decrees issued in tunis and morocco, advisory opinion, 1923 p.c.i.j. (ser. b) no. 4, at 24 (february 7) [hereinafter tunis and morocco nationality decrees] (“the question whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question: it depends upon the development of international relations. thus, in the present state of international law, questions of nationality are, in the opinion of this court, in principle within this reserved domain.”). see also ian brownlie, principles of public international law 384 (6th ed. 2018). 64 proposed amendments to the naturalization provision of the constitution of costa rica, advisory opinion oc-4/84, inter-am. ct. h.r. (ser. a) no. 4, ¶ 32 (jan. 19, 1984). accord spiro, supra note 3, at 714 (commenting that even through most of the late twentieth century, “the conventional wisdom among legal scholars held nationality practice to be largely unconstrained by international law.” (citing georg schwartzberger, a manual of international law 141 (5th ed. 1967) (“[i]n principle, international law leaves each territorial sovereign to decide which of his inhabitants he wishes to grant nationality.”))); paul weis, nationality and statelessness in international law 65 (2nd ed. 1979) (“the right of a state to determine who are, and who are not, its nationals is an essential element of its sovereignty.”); otto kimminich, the conventions for the prevention of double citizenship and their meaning for germany and europe in an era of migration, 38 german y.b. int’l l. 224, 224 (1995) (affirming the hague convention’s provision that “[i]t is for each state to determine under its own law who are its nationals”) (citation omitted). 65 tunis and morocco nationality decrees, supra note 63, at 24. 66 league of nations, convention on certain questions relating to the conflict of nationality laws, apr. 13, 1930, 179 l.n.t.s. 89 [hereinafter 1930 hague convention]. 67 id. art. 1. 68 id. art. 2. 69 id. art. 1. 2021] nationality laws 99 tunis and morocco opinion, the permanent court of international justice made the following statement: the question whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question; it depends upon the development of international relations. thus, in the present state of international law, questions of nationality are, in the opinion of the court, in principle within this reserved domain. . . . [i]t may well happen that, in a matter which, like that of nationality, is not, in principle, regulated by international law, the right of a state to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other states. in such case, jurisdiction which, in principle, belongs solely to the state, is limited by rules of international law.70 today, it is well accepted by scholars that international human rights law has evolved to place significant constraints on states’ prerogatives in nationality matters, such that traditional notions of sovereignty have been eroded, albeit not eradicated.71 it is often stated that, in many instances and under certain circumstances, a refusal to grant nationality or a withdrawal of nationality violates norms of international law. scholars tend to point to a cluster of intersecting areas of international human rights law to establish the claim that the traditional position has been modified in important ways. interestingly—and perhaps tellingly—a number of scholars have pointed to icerd 72 (together with other non-discrimination treaties, or treaties containing non-discrimination clauses) to argue that the 70 tunis and morocco nationality decrees, supra note 63, at 24. see also nottebohm case (liech. v. guat.), judgment, 1955 i.c.j. rep. 4, ¶¶ 20–21 (april 6). see mads andenas, reassertion and transformation: from fragmentation to convergence in international law, 46 geo. j. int’l l. 685 (2015). 71 for detailed discussions of the phases and contours of international human rights law that constrain state sovereignty in nationality practice, see spiro, supra note 3. 72 see, e.g., alice edwards, the meaning of nationality in international law in an era of human rights, in nationality and statelessness under international law 26 (alice edwards & laura van waas eds., 2014) [hereinafter edwards, the meaning of nationality]. 100 colum. j. race & l. [vol. 11:83 evolution of human rights has encroached on states’ prerogatives in nationality matters.73 in the context of nationality matters, scholars tend to focus on three interfacing areas of international law where constraints are imposed on state discretion in the context of nationality matters. first, reliance is placed on the prohibition of arbitrary deprivation of nationality as a constraint on state discretion. arbitrary deprivation of nationality generally refers to withdrawal or denial74 of nationality where such deprivation does not serve a legitimate purpose, where it does not follow the principle of proportionality, where it is discriminatory, and/or where it is otherwise incompatible with international law. 75 international and regional human rights instruments reinforce this prohibition of arbitrary deprivation of nationality.76 73 consider also the relationship of article 1(3) to similar exclusion/limitation clauses contained in other human rights instruments. see g.a. res. 40/144 (xl), declaration of human rights of individuals who are not nationals of the country in which they live, art. 2(1) (dec. 13, 1985): nothing in this declaration should be interpreted as legitimizing the illegal entry into and presence in a state of any alien, nor shall any provision be interpreted as restricting the right of any state to promulgate laws and regulations concerning the entry of aliens and the terms and conditions of their stay or to establish differences between nationals and aliens. however, such laws and regulations shall not be incompatible with the international legal obligations of that state, including those in the field of human rights. see also 1954 statelessness convention, supra note 20, art. 31; convention on the reduction of statelessness art. 1(2)(c), art. 4(2)(c), art. 8(3), aug. 30, 1961, 989 u.n.t.s. 175 [hereinafter 1961 statelessness convention]. 74 michelle foster & hélène lambert, international refugee law and the protection of stateless persons 51–52 (2019). see also laura van waas, nationality matters: statelessness under international law 101 (2008). 75 edwards, the meaning of nationality, supra note 72, at 26. see also jorunn brandvoll, deprivation of nationality, in nationality and statelessness under international law 194 (alice edwards & laura van waas eds., 2014). 76 see g.a. res. 217 (iii) a, universal declaration of human rights, art. 15 (dec. 10 1948) [hereinafter udhr] (“no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”); convention on the rights of persons with disabilities art. 18(1)(a), dec. 3, 2006, 2515 u.n.t.s. 3 [hereinafter crpd] (stating that it is upon states parties to ensure “persons with disabilities . . . [h]ave the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability.”); organization of american states, american convention on human rights art. 20, nov. 22, 1969, o.a.s.t.s no. 36, 1144 u.n.t.s. 123. (“1. every person has the right to a nationality; 2. every person has the right to the nationality of the state in whose territory he was born if he does not have the 2021] nationality laws 101 second, there is an emerging view that the duty to prevent statelessness is developing as a norm of customary international law and that this duty represents a constraint on state discretion in nationality matters.77 reliance is placed on treaty provisions that share an underlying concern to prevent statelessness. article 13 of the 1930 hague convention provides that if a child does not acquire the new nationality of his or her parents in the context of their naturalization, they are to retain their original nationality.78 article 9(1) of the 1979 convention on the elimination of all forms of discrimination against women (cedaw) provides that “[states] shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.”79 the convention on the rights of the child (crc) includes under articles 7 and 8 the right to a nationality and the right to an identity—and specifies that these rights are to be implemented “in particular where the child would otherwise be stateless.” 80 importantly, these provisions in human rights instruments are complemented by the two major conventions on right to any other nationality; 3. no one shall be arbitrarily deprived of his nationality or of the right to change it.”). see also league of arab states, arab charter on human rights, art. 29, may 22, 2004, reprinted in 12 int’l hum. rts. rep. 893 (2005) (“everyone has the right to nationality. no one shall be arbitrarily or unlawfully deprived of his nationality.”); the commonwealth of independent states, convention on human rights and fundamental freedoms art. 24, may 26, 1995, 3 i.h.r.r. 1 (stating both that “[e]veryone shall have the right to citizenship,” and that “[n]o one shall be arbitrarily deprived of his citizenship or of the right to change it.”). 77 edwards, the meaning of nationality, supra note 72, at 28. see also sanoj rajan, ending international surrogacy-induced statelessness: an international human rights law perspective, 58 indian j. int’l l. 128 (2018) (noting that this is especially the case with respect to children). 78 1930 hague convention, supra note 66, art. 13 (“naturalisation of the parents shall confer on such of their children as, according to its law, are minors the nationality of the state by which the naturalisation is granted. in such case the law of that state may specify the conditions governing the acquisition of its nationality by the minor children as a result of the naturalisation of the parents. in cases where minor children do not acquire the nationality of their parents as the result of the naturalisation of the latter, they shall retain their existing nationality.”). 79 united nations convention on the elimination of all forms of discrimination against women, dec. 18, 1979, 1249 u.n.t.s. 13. see also united nations convention on the nationality of married women, feb. 20, 1957, 309 u.n.t.s. 65. 80 united nations convention on the rights of the child arts. 7-8, nov. 20, 1989, 1577 u.n.t.s. 3. 102 colum. j. race & l. [vol. 11:83 statelessness: the 1954 convention relating to the status of stateless persons (1954 statelessness convention) 81 and the 1961 convention on the reduction of statelessness (1961 statelessness convention).82 finally, and related to the prohibition of arbitrary deprivation of nationality, scholars point to the general principle of non-discrimination in nationality laws as a constraint on state discretion. non-discrimination is underpinned by and fundamental to all major human rights instruments. article 9 of the 1961 statelessness convention prohibits the deprivation of nationality on racial, ethnic, religious, or political grounds. article 9(2) of cedaw provides, “states parties shall grant women equal rights with men to acquire, change or retain their nationality.” article 18(1)(a) of the convention on the rights of persons with disabilities provides that states parties shall ensure that persons with disabilities “[h]ave the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability.”83 importantly for the purposes of this paper, scholars point to article 5(d)(iii) of icerd, which provides that depriving any person of their nationality on the basis of race, color, or national or ethnic origin is a breach of a state’s obligations under the convention.84 often in tandem with this reference, scholars tend to stress the importance of the prohibition on racial discrimination as a jus cogens norm of international law. it is important to recall that these three areas interface and intersect. for example, deprivation of nationality on the basis of race, color, sex, language, etc. has been considered arbitrary and therefore prohibited under international law.85 several academics have also argued that deprivation that results in statelessness is inherently arbitrary.86 together, the three 81 1954 statelessness convention, supra note 20. 82 1961 statelessness convention, supra note 73. 83 crpd, supra note 76, art. 18(1)(a). 84 note that “descent”—listed as a prohibited ground of discrimination in article 1(1)—is missing from article 5, yet this is unlikely to have any impact given that article 5 refers to racial discrimination, defined in article 1 as including discrimination based on descent. 85 see e.g., hum. rts. council, draft resolution of its twentieth session, u.n. doc. a/hrc/20/l.9, at 2 (june 28, 2012). 86 see e.g., ruth donner, the regulation of nationality in international law 245 (2d ed. 1994) (arguing that arbitrary is defined as “a discriminatory measure, directed against a particular section of the population or as resulting in statelessness”); johannes m. m. chan, the right to a 2021] nationality laws 103 intersecting principles, and the contemporary academic discourse around them, go a long way in advancing a “new international law of citizenship.”87 however, there remains a chink in the armor of the new regime related to nationality practice, which, if left unaddressed, threatens to undermine its robustness. article 1(3) of icerd, at least on its face, reflects and possibly perpetuates a lingering remnant of state discretion. while icerd itself is time and again put forward as an example of a constraint on state discretion, most scholars tend to ignore or brush over a tension that exists in the very text of the convention and that perhaps perpetuates the very problem they seek to resolve. coming into force on january 4, 1969, icerd is broadly considered the core of the international human rights framework for addressing and combating racial discrimination.88 article 1(1) defines racial discrimination as: [a]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.89 as explained above, article 1(2) of the convention stipulates a limitation on the terms of article 1(1). it provides that the convention does not apply to distinctions, exclusions, restrictions, or preferences made between citizens and noncitizens. it has been argued that “while this provision allows states to make some distinctions between citizens and noncitizens,” it must be narrowly construed and interpreted in accordance with standards relating to the prohibition of racial discrimination and equality before the law as enshrined in article 5 of the convention.90 a full discussion of article 1(2) is nationality as a human right: the current trend towards recognition, 12 hum. rts. l.j. 1, 3 (1991). 87 spiro, supra note 3. 88 kevin boyle & anneliese baldaccini, a critical evaluation of international human rights approaches to racism, in discrimination and human rights: the case of racism 135 (sandra fredman ed., 2001). 89 icerd, supra note 11, art.1(1). 90 special rapporteur report on contemporary forms of racism, supra note 36, at ¶19 (also noting that “[d]istinctions between citizens and non-citizens cannot be applied in a racially discriminatory manner or as a pretext for racial 104 colum. j. race & l. [vol. 11:83 beyond the scope of this paper, 91 but 1(2) does help to contextualize article 1(3) and its place in the drafting history of the convention. the distinction between citizens and noncitizens also underscores the importance of the right to nationality (as enshrined in article 5(d)(iii), which applies without distinction to “everyone”) and, as shown below, simultaneously highlights the protection gap represented by article 1(3). secondary material on article 1(3) has mostly either taken as an (unproblematic) given that article 1(3) limits the applicability of article 1(1) or produced only thin justifications for interpreting article 1(3) narrowly, often focusing on the second clause of the article (“provided that such provisions do not discriminate against any particular nationality”) and glossing over the first (“[n]othing in this convention may be interpreted as affecting in any way the legal provisions of states parties concerning nationality, citizenship or naturalization”). 92 further, few treatments to date have explored the apparent contradiction between article 5(d)(iii) and article 1(3). natan lerner writes that articles 1(2) and 1(3) combine to mean that the convention should not be taken as interfering “in the internal legislation of any state as far as differences in the rights of citizens and non-citizens are concerned, [nor as] pretend[ing] to affect substantive or procedural norms on citizenship and naturalization.” 93 theodor meron simply states that under article 1(3) “nationality, citizenship or naturalization provisions of a particular state may not discriminate against any particular nationality.”94 in a reflection on racial discrimination as a major driver of denationalization and restrictive access to citizenship, james a. goldston asserts that while article 1(3) of icerd “grants states discretion in applying race-based distinctions when it comes to citizenship rules,” the language of the article also places limits on this discretion.95 a recent report of the discrimination.”). accord david weissbrodt, the human rights of noncitizens 48 (2011). 91 for further analysis, see achiume, governing xenophobia, supra note 36, at 356–58. 92 icerd, supra note 11, art.1(3). 93 natan lerner, the u.n. convention on the elimination of all forms of racial discrimination 35 (1980) [hereinafter lerner, u.n. convention]. 94 meron, supra note 3, at 311. 95 james a. goldston, holes in the rights framework: racial discrimination, citizenship, and the rights of noncitizens, 20 ethics & int’l aff. 321, 333 (2006). 2021] nationality laws 105 special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance from 2018 highlights this tension in noting that “the regulation of nationality is generally considered to be within the domestic jurisdiction of states,” yet “international law provides that the right of states to decide who their nationals are is not absolute.”96 to be sure, some scholars have acknowledged article 1(3) as problematic. peter spiro observes that while international law has significantly and broadly constrained discriminatory classifications, article 1(3) “brackets the use of race as a criterion for citizenship.”97 he concludes that “[i]n its original conception . . . the convention was not intended to constrain criteria for admission from outside the existing community,” citing the convention as an example of international law’s historical silence about a citizenship regime that had the clear effect of excluding outsiders on the basis of race.98 joanne mariner makes a similar observation. writing in 2003, she comments: the convention shifts gears with regard to rules regulating citizenship. despite its broad and 96 special rapporteur report on contemporary forms of racism, supra note 36, ¶ 23 (citing u.n. secretary-general, human rights and arbitrary deprivation of nationality, hum. rts. council, ¶¶ 20, 57, u.n. doc. a/hrc/13/34 (dec. 14, 2009)) (“the [international law] commission also affirmed that the right of states to decide who their nationals are is not absolute and that, in particular, states must comply with their human rights obligations concerning the granting of nationality.”). accord proposed amendments to the naturalization provision of the constitution of costa rica, advisory opinion oc-4/84, inter-am. ct. h.r. (ser. a) no. 4, ¶ 32 (jan. 19, 1984) (contending that that “the manners in which states regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction; those powers of the state are also circumscribed by their obligations to ensure the full protection of human rights”); václav mikulka (special rapporteur), third rep. on nationality in relation to the succession of states, at 20–21, u.n. doc. a/cn.4/480 (feb. 27, 1997) (indicating that a state must exercise “its discretionary power within the scope of its territorial or personal competence . . . in a manner consistent with its international obligations in the field of human rights.”). see also id. at 20 (indicating that “state sovereignty in the determination of its nationals does not mean the absence of all rational constraints. the legislative competence of the state with respect to nationality is not absolute.”) (citing henri batiffol & paul lagarde, droit international privé 69–70 (7th ed. 1981)). 97 spiro, supra note 3, at 716. 98 id. note, however, spiro’s treatment of racial discrimination as jus cogens: “the prohibition on race discrimination has since arguably evolved into a jus cogens norm—that is, a norm from which no derogation is permitted.” id. at 716 n.144 (citing juridical condition and rights of the undocumented migrants, advisory opinion oc-18/03, inter-am. ct. h.r. (ser. a) no. 18, ¶ 101 (sept. 17, 2003)). 106 colum. j. race & l. [vol. 11:83 unqualified language about the necessity of eliminating racial and ethnic discrimination in all of its manifestations, the treaty contains an explicit exception for countries’ citizenship and naturalization policies. . . . practices that would, in short, merit the sternest reproach in nearly every other area of government policy are considered permissible in the area of citizenship.99 mariner made this observation just a year before the committee formulated its general recommendation thirty, which advanced a significantly narrowed interpretation of the article 1(3) limitation clauses. this article returns to the committee’s recommendation below, but for now it is important to stress that generous scholarly and committee interpretations notwithstanding, it is difficult, and possibly counterproductive, to ignore the fact that on its face, the language of article 1(3) undermines the reach and application of the convention. as egon schwelb rightly points out, with article 1(3) left unconstrained, under its terms a provision “depriving of their citizenship the citizens of a state party who belong to a specific racial or ethnic group would be a legal provision ‘concerning nationality’ and ‘concerning citizenship’ and would” therefore be compatible with article 1(3).100 needed is a principled approach for “reading down” article 1(3), one that heeds closely to the 99 joanne mariner, racism, citizenship and national identity, 46 development 64, 64–65 (2003). mariner notes in a separate essay that “while adamantly prohibiting racial and ethnic discrimination in other areas, international human rights law falters notably with regard to rules regulating citizenship.” joanne mariner, racism citizenship and national identity: a conceptual challenge for the un racial conference, findlaw (sept. 3, 2001), https://supreme.findlaw.com/legal-commentary/racism-citizenship-andnational-identity.html [https://perma.cc/ym8w-sq6j]. mariner points to icerd’s inclusion of “an explicit exception for countries’ citizenship and naturalization policies,” noting that this provision specifies “that the convention’s protections against discrimination do not generally extend to legal rules on citizenship and naturalization, although they do bar discrimination against particular nationalities.” mariner, supra, at 64–65. 100 egon schwelb, the international convention on the elimination of all forms of racial discrimination, 15 int’l & comp. l.q. 996, 1009 (1966) [hereinafter schwelb, elimination of all forms of racial discrimination] (although contending that article 5(d)(iii) “limits the very wide field of application of article 1(3), such . . . a provision of this kind would ultimately be incompatible with the convention.”). 2021] nationality laws 107 principles of treaty interpretation as set out in the vienna convention on the law of treaties (vclt).101 iv. article 1(3): history and current approaches in this part, the article addresses the gaps outlined above by undertaking a thorough review of the drafting history of article 1(3) and an analysis of its interpretation and implementation by the committee. article 31(1) of vclt sets out the principal scheme of treaty interpretation: “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”102 it is worth noting as a general matter that human rights treaties should arguably be interpreted in a manner “favorable to the effective protection of individual rights.”103 vclt permits recourse to preparatory materials (travaux préparatoires) as supplementary tools when other canons of treaty interpretation deliver ambiguous (or absurd) results. although the intentionalist approach to treaty interpretation remains highly contested, it is generally agreed that preparatory materials can shed light on the literal and contextual meanings of a provision and that the intention of parties, as distilled from the preparatory materials, serves as “a relevant and underlying consideration”—even if they remain in the background.104 given the ambiguity and confusion surrounding article 1(3), this part begins by considering its drafting history. 101 vienna convention of the law of treaties, may 23, 1969, 1155 u.n.t.s. 331 [hereinafter vclt]. 102 id. art. 31. 103 kerstin mechlem, treaty bodies and the interpretation of human rights, 42 vand. j. transnat’l l. 905, 912 (2009) (citing matthew craven, the international covenant on economic, social and cultural rights: a perspective on its development 3 (1995) (“[t]he terms (of a human rights treaty) are to be interpreted in a manner favourable to the individual and that, in particular, limitations and restrictions on rights are to be read narrowly.”)). see also tobin, supra note 16, at 50 (noting that international human rights treaties should be interpreted dynamically and in a manner that reflects “factors which are considered essential to ensure a constructive approach to interpretation.”); pushpanathan v. canada, [1998] s.c.r. 982, ¶ 57 (can.) (“this overarching and clear human rights object and purpose is the background against which interpretation of individual provisions must take place.”). 104 tobin, supra note 16, at 23. 108 colum. j. race & l. [vol. 11:83 a. the drafting history of article 1(3) of icerd as well as disclosing a perennial tension between racial non-discrimination and state discretion in the regulation of nationality (and perhaps, too, a lingering bastion of that discretion), a close reading of the drafting history of article 1(3) reveals that while the article 1(3) reflects a concern with state sovereignty, it equally reflects an immediate concern with colonialism (or anti-colonialism). as patrick thornberry notes, “[f]or many delegates, colonialism was the great racial evil.”105 undergirded by similar logic, the twin concerns of anticolonialism and state sovereignty (what might be described as the unconstrained power to define the boundaries of membership)106 meant that many states—both developing and developed—could conjoin and concur around the broad language of article 1(3). as demonstrated above, article 1(1) defines racial discrimination as: any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.107 as kevin boyle and anneliese baldaccini write: while the words “colour,” “descent,” and “ethnic origin” did not represent major difficulties, a serious problem arose with regard to the term “national origin” due to it being widely used as relating to nationality or citizenship. to avoid any misinterpretation, paragraphs 2 and 3 were added to article 1 excluding distinctions between 105 thornberry, supra note 2, at 1. see also rüdiger wolfrum, the committee on the elimination of racial discrimination, 3 max planck y.b. u.n. l. 489 (1999) (noting that the drafting of the preamble to the convention reflected a sensitivity to the challenge and practice of colonialism and other issues); david keane & annapurna waughray, introduction, in fifty years of the international convention on the elimination of all forms of racial discrimination: a living instrument 4–5 (david kaene & annapurna waughray eds., 2014). 106 see spiro, supra note 3, at 744. 107 icerd, supra note 11, art. 1(1). 2021] nationality laws 109 citizens and non-citizens from the ambit of the definition.108 initially, the sub-commission’s draft convention proposed the “interpretive” article 8 to serve as a counterbalance to the broad protection offered by article 1(1) and the contested invocation of “national origin.”109 draft article 8 reads as follows: nothing in the present convention may be interpreted as implicitly recognizing or denying political or other rights to non-nationals nor to groups of persons of a common race, colour, ethnic or national origin which exist or may exist as distinct groups within a state party.110 there was general agreement that the article was intended by the sub-commission to provide a qualification to article 1. it was “aimed at precluding certain interpretations of the provisions of the convention.” 111 there was considerable discussion, however, about the scope and intention of some of the wording used in the sub-commission’s text. a joint amendment to article 8 proposed by representatives of france, india, and the philippines read as follows: nothing in this present convention may be interpreted as affecting in any way the distinction between national and non-nationals of a state, as recognized by international law, in the enjoyment of political or other rights, or as amending provisions governing the exercise of political or other rights by naturalized persons . . . .112 after lengthy discussions that revolved largely around the inclusion of the words “national origin” in article 1(1), article 108 boyle & baldaccini, supra note 88, at 152 n.79. 109 u.n. escor, 37th sess., supp. 8, at ¶¶ 248, 253, u.n. doc. e/cn.4/874 (feb. 17–mar. 18, 1964). 110 id. ¶ 242. 111 id. ¶ 248. 112 id. ¶ 247. see also comm’n on hum. rts. sub-commission on prevention of discrimination & protection of minorities, rep. of the sixteenth sess., 41, u.n. doc. e/cn.4/873 (feb. 11, 1964). the phrase “as recognized by international law” was later deleted. earlier drafts focused largely on noncitizens. the first version, submitted by calvoressi and capotorti, included the provision that nothing in the convention “shall be interpreted as implying a grant of equal political rights to nationals of a contracting state or a grant of political rights to a distinct racial ethnic or national group as such.” thornberry, supra note 2, at 142. 110 colum. j. race & l. [vol. 11:83 8 was deleted at the 808th meeting.113 following deletion of article 8 from the draft convention, the representative of france moved at the 809th meeting of the commission to reconsider article 1, paragraph 1, with a view to deciding whether the word “national” should be retained.114 after further discussion and a series of textual proposals, the commission agreed at its 810th meeting to place the word “national” within square brackets, and to add the following words, also in square brackets, at the end of the paragraph: “in this paragraph the expression ‘national origin’ does not cover the status of any person as a citizen of a given state.” 115 at the conclusion of the twentieth session of the commission on human rights, draft article 1 read as follows: in this convention the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, [national] or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.116 the language of article 1 of the draft convention arose again at the twentieth session of the general assembly. article 1(3) was initially conceived as a replacement of article 8 in light of the decision to retain the reference to national origin in article 1(1). although a number of states called for the deletion of all brackets, it was felt that some explanation to eliminate the ambiguity of the word “national” was necessary, specifically following the deletion of article 8. 117 for example, the representative of france observed that “it was not surprising that the term ‘national origin’ had given rise to difficulties, since it could be interpreted in two entirely different ways,” one sociological and the other legal.118 like the original article 8, the 113 lerner, u.n. convention, supra note 93, at 27. 114 id. 115 id. 116 u.n. escor, 37th sess., supp. 8, supra note 109, at 111. (“in this paragraph the expression ‘national origin’ does not cover the status of any person as a citizen of a given state.”). 117 u.n. gaor, 20th sess., 1304th mtg. at 83–86, u.n. doc. a/c.3/sr.1304 (oct. 14, 1965). 118 goolam e. vahanwati, presentation before the u.n. committee on the elimination of racial discrimination (feb. 26, 2007), https://tbinternet.ohchr.org/treaties/cerd/shared%20documents/ind/int_ce rd_sta_ind_70_11102_e.pdf [https://perma.cc/qwe5-jqrz]. 2021] nationality laws 111 paired articles 1(2) and 1(3) were therefore viewed as limiting interpretive clauses on the broad protections conferred by 1(1), and especially in response to the (contested) inclusion of the term “national origin” therein. the discussions around national origin were influenced strongly by concerns and anxieties related to colonialism and the desire of many states to preserve national governance. this concern is evident in comments by the representative of uganda, who stated, “it was natural that a country which had just become independent should wish to give its own nationals the key posts in the economy hitherto largely held by nationals.”119 it is perhaps worth noting that a similar concern for independence in a post-colonial context can be discerned in the text of the international covenant on economic, social and cultural rights (icescr), which reads at article 2(3): “developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present covenant to non-nationals.”120 here too, article 2(3) follows a broad non-discrimination clause in article 2(2), which provides that “[t]he states parties to the present covenant undertake to guarantee that the rights enunciated in the present covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”121 evo dankwa has pointed out that during the drafting history of icescr a number of delegates from developing countries had urged that the approval of article 2(2) “would be tantamount to perpetuating the dominant position of aliens in the economic field,” particularly in light of colonial powers that had deprived the new states “of that opportunity to ensure that meaningful economic rights were exercised by most people in their countries.”122 119 u.n. gaor, 20th sess., 1305th mtg. at 89, u.n. doc. a/c.3/sr.1305 (oct. 14, 1965). 120 international covenant on economic, social and cultural rights art. 2(3), dec. 16, 1966, 933 u.n.t.s. 3. 121 id. art. 2(2). 122 evo dankwa, working paper on article 2(3) of the international covenant on economic, social and cultural rights, 9 hum. rts. q. 230, 236 (1987) (citing u.n. gaor, draft international convention on human rights, at 235, u.n. doc. a/5365 (1962) (“the sole aim of the proposals in question was to rectify situations which frequently existed in the developing countries particularly those which recently won their independence. in such countries, the influence of non-nationals on the national economy—a heritage of the colonial era—was often such that nationals were not in a position fully to enjoy the 112 colum. j. race & l. [vol. 11:83 however, the concerns around the inclusion of the words “national origin” and its relevance to nationality laws in icerd were also animated, at least in part, by a desire on the part of powerful, developed states to “assure states parties that due respect is given to state sovereignty in areas concerning naturalization.”123 for example, the representative of the united kingdom stated that the term “national origin” tended to confuse the issue because “such a provision [regarding nationality] would do away with the special facilities given by states to those of their nationals who, having changed their nationality, subsequently wished to recover their original nationality . . . as compared with aliens desiring to acquire that nationality by naturalization.”124 similarly, the representative of france explained that the inclusion of the words “national origin” might “impair the principle that temporary measures taken by governments with regards to naturalised persons did not constitute discrimination.”125 the representative of italy likewise explained that the mention of national origin would “raise difficulties in economic rights set forth in the draft covenant.”)). see also alice edwards, human rights, refugees, and the right to enjoy asylum, 17 int’l j. refugee l. 293 (2005) (asserting that the “purpose of article 2(3) was to end the domination of certain economic groups of non-nationals during colonial times,” but that the provision should be narrowly construed). 123 drew mahalic & joan gambee mahalic, the limitation provisions of the international convention on the elimination of all forms of racial discrimination, 9 hum. rts. q. 74, 79, 82 (1987). 124 schwelb, elimination of all forms of racial discrimination, supra note 100, at 1010, refers to this comment, and others like it, as an attempt at “maintaining disabilities of naturalised persons” and argues that this is the key animating consideration that gave rise to article 1(3). the representative of the united kingdom added that since the definition of racial discrimination in paragraph 1 was exceedingly broad, certain legitimate differentiations based on national origin might conceivably be prohibited under the convention if the words were retained. for example, in the united kingdom, preference was given to married women who had lost their british nationality in assisting them to reacquire that nationality; such preference could not be deemed discrimination. u.n. escor, summary record of the 786th meeting, 20th sess., at 4, u.n. doc. e/cn.4/sr.786 (apr. 21, 1964). 125 schwelb, elimination of all forms of racial discrimination, supra note 100, at 1010. see comm’n on hum. rts., rep. of the prevention and protection of minorities subcomm. on its fourteenth session, 42, u.n. doc. e/cn.4/830 (feb. 8. 1962). in making this claim, the representative of france pointed to the report of the 14th session of the sub-commission on the prevention of discrimination and protection of minority rights to the commission on human rights, in which it was asserted that an insistence upon an over-generous policy of granting full political rights immediately to all naturalized persons might discourage nations from giving nationality to many applicants as the view that all naturalized persons should enjoy the same political rights as any other national was not shared by every state. 2021] nationality laws 113 connection with enforcement of the right to nationality under article v” as it might present an obstacle to states, such as italy, “which endeavoured to assist former italian nationals to reacquire italian nationality.”126 in the final analysis, a joint amendment of ghana, india, kuwait, lebanon, mauritania, morocco, nigeria, poland, and senegal was proposed and adopted unanimously, almost without comment. the delegate of france said that the text submitted was entirely acceptable to his delegation and to that of the united states. the amendment clarified that the convention would not apply to non-citizens or affect legislation on nationality, citizenship, or naturalization, provided that there was no discrimination against any particular nationality.127 the only further mention of articles 1(2) and 1(3) arose briefly during discussions on article 5, where the delegate of india stated that “the word ‘everyone’ in the introductory part of that article might be regarded as including non-citizens as well as citizens,” but that in view of article 1 “the word ‘everyone’ no longer presented difficulties for his delegation.”128 while many scholars tend to follow schwelb’s view that paragraph 3 of article 1, as inserted by the third committee into the convention, “appears, to a certain extent at least, to be a saving clause for maintaining disabilities of naturalised persons,” 129 a close reading of the drafting history suggests a more complex view. the twin concerns of state sovereignty and anti-colonialism reinforced each other and were absorbed and reflected into the broad terms of article 1(3). broadly, two key points are discernable from the complex drafting history of article 1(3). first, the term and notion of “nationality” caused much confusion and anxiety among state representatives, who ultimately did not arrive at a settled definition. the word “nationality” therefore remains ambiguous for the purposes of treaty interpretation, and to a certain extent can and did refer to a person’s legal status as well as to his or her legal citizenship (as evinced by the concern for protecting the 126 u.n. escor, summary record of the 786th meeting, supra note 124, at 5. 127 u.n. high comm’r for hum. rts. the rights of non-citizens 9 (2006), https://www.ohchr.org/documents/publications/noncitizensen.pdf [https://perma.cc/a6yv-smsy]. 128 u.n. gaor, 20th sess., 1309th mtg. at 105, u.n. doc. a/c.3/sr/1309 (oct. 19, 1965). 129 schwelb, elimination of all forms of racial discrimination, supra note 100, at 1010. 114 colum. j. race & l. [vol. 11:83 advantage granted to natural born citizens and the disadvantages of naturalization).130 second, and relatedly, while article 1(3) was viewed as an exception to the broad protections contained in article 1(1), it was seen by many of the drafters as a limited exception aimed at providing scope for states to favor or give preference to certain groups in response to the context of decolonization. b. committee on the elimination of racial discrimination and article 1(3): toward a justification the convention’s expert monitoring body, the committee, was established by operation of article 8 of icerd.131 the committee is comprised of independent experts nominated and elected by states parties to icerd.132 states parties to icerd are obliged to report to the committee one year after the convention enters into force and every two years thereafter on the measures they have adopted to give effect to the convention. 133 the committee publishes concluding observations on the basis of the information gathered through this reporting. additionally, the committee is to report annually to the general assembly on its activities, and is empowered to make general recommendations and suggestions on the basis of the information they have gathered from states parties. 134 furthermore, the committee is empowered under article 11 to receive and communicate inter-state complaints regarding the failure to give effect to the convention by a state party.135 this mechanism was utilized for the first time in 2018 when three separate complaints were received by the committee.136 this is particularly noteworthy since it is the first time that an interstate complaint mechanism has been invoked under any united 130 id. at 1010 (noting that including the word “national” lacked the support of several states because, among other reasons, “certain legitimate differentiations based on national origin might conceivably be prohibited under the convention if the words were retained.”). 131 icerd, supra note 11, art. 8. 132 id. art. 8(1)–(4). 133 id. art. 9(1). 134 id. art. 9(2). 135 id. art. 11(1). 136 see state of qatar v. kingdom of saudi arabia, icerd-isc-2018/1 (comm. on elimination racial discrimination 2018); state of qatar v united arab emirates, icerd-isc-2018/2 (comm. on elimination racial discrimination 2018); state of palestine v state of israel, icerd-isc-2018/3 (comm. on elimination racial discrimination 2018). 2021] nationality laws 115 nations (un) human rights treaty. 137 while none of these complaints challenge nationality laws, they and the parallel case before the international court of justice (icj)138 raise issues about the correct interpretation of article 1(2) of the icerd and hence the relationship between discrimination on the grounds of nationality and racial discrimination.139 article 14 (1) provides that a state party may make a declaration allowing for individual and group complaints to be made to the committee regarding violations of rights under the convention by the state in question. 140 of the fifty-seven individual communications brought to the committee, only three have invoked article 5(d)(iii), namely, racial discrimination in respect of the right to nationality, and in none of these cases has the claim been made out.141 137 u.n. high comm’r for hum. rts, comm. on elimination racial discrimination, inter-state communications, https://www.ohchr.org/en/hrbodies/cerd/pages/interstatecommunications.a spx [https://perma.cc/n9a2-8f3h] (last visited sept. 6, 2020). for other such mechanisms, see convention against torture and other cruel, inhuman or degrading treatment or punishment art. 21, dec. 10, 1984, t.i.a.s. no. 941120.1, 1465 u.n.t.s. 85; international convention on the protection of the rights of all migrant workers and members of their families art. 74, dec. 18, 1990, 2220 u.n.t.s. 3; international convention on the protection of all persons from enforced disappearance art. 32, dec. 20, 2006, 2716 u.n.t.s. 3; optional protocol to the international covenant on economic, social and cultural rights, art. 10, dec. 10, 2008, 2922 u.n.t.s. 29; optional protocol to the convention of the rights of the child on a communication procedure art. 12, dec. 19, 2011, 2983 u.n.t.s. registration no. 27531; international covenant on civil and political rights arts. 41–43, dec. 16, 1966, t.i.a.s. no. 92-908, 999 u.n.t.s. 171. 138 elimination of all forms of racial discrimination (qatar v. u.a.e.), application instituting proceedings, ¶¶ 55–56 (june 11, 2018), https://www.icjcij.org/public/files/case-related/172/172-20180611-app-01-00-en.pdf [https://perma.cc/k6m6-3p3g] (conceding that while article 1(2) affords nations the right to distinguish citizens from non-citizens, it does not allow nations to discriminate against non-nationals by treating one group differently from another). 139 see comm. on elimination racial discrimination, jurisdiction of the inter-state communication submitted by qatar against the kingdom of saudi arabia, u.n. doc. cerd/c/99/5 (aug. 30, 2019). 140 icerd, supra note 11, art. 14 (of the 182 states parties to the convention, fifty-nine have made a declaration under art. 14(1) to recognize the competency of the committee to hear individual complaints. the committee only possesses jurisdiction to hear the petitioner’s complaint once it has ascertained that they have exhausted all domestic remedies. id. art. 14(7)(a). after hearing the complaint, the committee is required to communicate any suggestion and recommendation to both the state party and the petitioner. id. art. 14(7)(b)). 141 see pjetri v. switzerland, communication 53/2013, opinion, comm. on elimination racial discrimination, ¶ 4.2, u.n. doc. cerd/c/91/d/53/2013 116 colum. j. race & l. [vol. 11:83 by contrast, nationality matters have been considered more extensively in the context of the committee’s examination of individual country reports, although in that context the issue is examined relatively infrequently. 142 the committee was initially reluctant to criticize states’ treatment of non-citizens and nationality laws, especially as those laws related to naturalization and the granting of preferential treatment to citizens of favored nations. 143 in more recent years, the committee’s general recommendations, and especially general recommendation thirty, have somewhat narrowed the terms of the convention so that article 5 is now seen as limiting the scope of articles 1(2) and 1(3). even with this interpretation advanced in its general recommendations, the committee has been inconsistent in its willingness to comment directly on racially discriminatory nationality laws. our survey of the committee’s concluding observations over a thirty-year period reveals that it is, to a certain degree, still reluctant to call attention clearly and unequivocally to discriminatory nationality laws, particularly as they relate to the denial of nationality. in its general recommendation eleven, the committee made a preliminary and interesting interpretive maneuver with respect to article 1. noting that article 1(2) exempts from article (jan. 23, 2017) (petitioner claimed that his application for naturalization was rejected based on his national origin and disability.); a.m.m. v. switzerland, communication 50/2012, opinion, comm. on elimination racial discrimination, ¶ 3, u.n. doc. cerd/c/84/d/50/2012 (mar. 11, 2014) (petitioner claimed that the state violated his right not to be arbitrarily discriminated against, on account of his race and national origin, in his quest to secure refugee status.); d.r. v. australia, communication 42/2008, opinion, comm. on elimination racial discrimination, ¶ 7.3, u.n. doc. cerd/c/75/d/42/2008 (sep. 15, 2009) (petitioner claimed that in withdrawing him from social security and depriving him of the right to the full benefits of citizenship, the state arbitrarily discriminated against him because of his race and nationality.). this is current up to november 19, 2020. 142 the committee has published concluding observations on 161 countries. the analysis for this article has derived from a review of all of the concluding observations available in english up until december 2019. 143 mahalic & mahalic, supra note 123, at 79 (“states parties hold, and the committee has agreed, that a state has the sovereign right to decide who can enter and remain in its territory provided that no element of racial discrimination is involved. committee members have been hesitant to criticize a state’s naturalization laws unless they reveal a flagrant racially discriminatory practice. with one exception, the committee has discovered no racist provisions on the face of any state party’s naturalization laws.”); comm. on elimination racial discrimination, rep. of meeting, u.n. doc. cerd/c/sr.488 (aug. 11, 1980); comm. on elimination racial discrimination, provisional summary record of its twenty-eighth session, 643rd mtg. u.n. doc. cerd/c/sr.643 (july 22, 1983). 2021] nationality laws 117 1(1) actions by states parties that differentiate between citizens and non-citizens, the committee asserted that article 1(3) provides a qualification to paragraph 2 “by declaring that, among non-citizens, states parties may not discriminate against any particular nationality.”144 thornberry claims that “the general direction of the cerd approach has been to shrink progressively any lacuna in human rights protection represented by 1(2) and 1(3).” 145 the committee’s general recommendation thirty, adopted in 2004, certainly augments the same logic contained in general recommendation eleven and widens its guiding principle.146 echoing general recommendation eleven, section i of general recommendation thirty provides that “article 1, paragraph 3 declares that, concerning nationality, citizenship or naturalization, the legal provisions of states parties must not discriminate against any particular nationality.”147 section 4 of general recommendation thirty speaks directly to article 1(3) under the subheading, “access to citizenship.”148 paragraph 13 requires states to ensure that “particular groups of non-citizens are not discriminated against with regard to access to citizenship or naturalization, and to pay due attention to possible barriers to naturalization that may exist for long-term or permanent residents.” 149 paragraph 14 “recognize[s] that deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of states parties’ obligations to ensure non-discriminatory enjoyment of the right to nationality.”150 our survey of concluding observations reveals that, since general recommendation thirty, the principles it sets out are frequently relied upon. however, the committee tends to focus on gender-based discrimination,151 the risk of statelessness or 144 comm. on elimination racial discrimination, general recommendation eleven, on non-citizens, ¶ 1, u.n. doc. a/48/18 (1993). 145 thornberry, supra note 2, at 146. 146 comm. on elimination racial discrimination, general recommendation thirty, on discrimination against non-citizens, ¶ 14, u.n. doc. hri/gen/1/rev.7/add.1 (may 4, 2005) [hereinafter general recommendation thirty] (noting that states parties who fail to grant citizenship on account of race or heritage violate their obligations under the convention). 147 id. ¶ 1. 148 id. at 4. 149 id. ¶ 13. 150 id. ¶ 14. 151 the committee focused on these issues in relation to fifteen countries. see, e.g., comm. on elimination racial discrimination, concluding observations on bahamas, u.n. doc. cerd/c/64/co/1 (apr. 28, 2004); comm. on elimination of racial discrimination, concluding observations on bahrain, u.n. doc. cerd/c/bhr/co/7, at 17 (apr. 14, 2005); comm. on elimination 118 colum. j. race & l. [vol. 11:83 racial discrimination, 59th sess., u.n. doc. a/56/18, at 288 (2001) (regarding egypt); comm. on elimination racial discrimination, concluding observations on estonia, u.n. doc. cerd/c/304/add.98 (apr. 19, 2000) (but see comm. on elimination racial discrimination, concluding observations on estonia, u.n. doc. cerd/c/est/co/7 (oct. 19 2006) and comm. on elimination racial discrimination, concluding observations on estonia, u.n. doc. cerd/c/est/co/8-9 (sept. 23, 2010)); comm. on elimination racial discrimination, concluding observations on kyrgyzstan, u.n. doc. cerd/c/kgz/co/8-10, at 15 (may 30, 2018); comm. on elimination racial discrimination, concluding observations on lebanon, u.n. doc. cerd/c/lbn/co/18-22 (oct. 5, 2016); comm. on elimination racial discrimination, concluding observations on madagascar, u.n. doc. cerd/c/65/co/4 (dec. 10, 2004); comm. on elimination racial discrimination, concluding observations on mauritania, u.n. doc. cerd/c/65/co/5, at 18 (dec. 10, 2004); comm. on elimination racial discrimination, concluding observations on mauritania, u.n. doc. cerd/c/mrt/co/8-14, at 19 (may 30, 2018); comm. on elimination racial discrimination, concluding observations on morocco, u.n. doc. cerd/c/mar/co/17-18, at 16 (sept. 13, 2010); comm. on elimination racial discrimination, concluding observations on nigeria, u.n. doc. cerd/c/nga/co/18, at 21 (mar. 27, 2007); comm. on elimination racial discrimination, concluding observations on oman, u.n. doc. cerd/c/omn/co/1 (oct. 19, 2006), comm. on elimination racial discrimination, concluding observations on oman, u.n. doc. cerd/c/omn/co/2-5, at 25 (june 6, 2016); comm. on elimination racial discrimination, concluding observations on qatar, u.n. doc. cerd/c/qat/co/17-21 (jan. 2, 2019); comm. on elimination racial discrimination, concluding observations on republic of korea, u.n. doc. cerd/c/kor/co/17-19 (jan. 10, 2019); comm. on elimination racial discrimination, concluding observations on saudi arabia, u.n. doc. cerd/c/62/co/8, at 14 (june 2, 2003); comm. on elimination racial discrimination, concluding observations on saudi arabia, u.n. doc. cerd/c/sau/co/4-9 (june 8, 2018); comm. on elimination racial discrimination, concluding observations on senegal, u.n. doc. cerd/c/sen/co/16-18, at 19 (oct. 24, 2012). 2021] nationality laws 119 absence of measures to address the risk of statelessness,152 and discrimination against non-citizens generally, 153 without 152 see, e.g., comm. on elimination racial discrimination, concluding observations on azerbaijan, u.n. doc. cerd/c/aze/co/7-9 (june 10, 2016); comm. on elimination racial discrimination, concluding observation on cambodia, u.n. doc. cerd/c/khm/co/14-17, at 5–7 (dec. 12, 2019); comm. on elimination racial discrimination, concluding observations on cameroon, u.n. doc. cerd/c/cmr/co/19-21 (sept. 26, 2014); comm. on elimination racial discrimination, concluding observations on czechia, u.n. doc. cerd/c/cze/co/12-13 (sept. 19, 2019); comm. on elimination racial discrimination, concluding observations on estonia, u.n. doc. cerd/c/est/co/7, (oct. 19, 2006); comm. on elimination racial discrimination, concluding observations on georgia, u.n. doc. cerd/c/geo/co/4-5 (sept. 20, 2011); comm. on elimination racial discrimination, concluding observations on georgia, u.n. doc. cerd/c/geo/co/6-8 (june 22, 2016); comm. on elimination racial discrimination, concluding observations on kazakhstan, u.n. doc. cerd/c/kaz/co/6-7 (mar. 14, 2014); comm. on elimination racial discrimination, concluding observations on kyrgyzstan, u.n. doc. cerd/c/kgz/co/8-10 (may 30, 2018); comm. on elimination racial discrimination, concluding observations on oman, u.n. doc. cerd/c/omn/co/2-5 (june 6, 2016); comm. on elimination racial discrimination, concluding observations on qatar, u.n. doc. cerd/c/qat/co/17-21, at 27 (jan. 2, 2019); comm. on elimination racial discrimination, concluding observations on slovenia, u.n. doc. cerd/c/svn/co/6-7 (sept. 20, 2010); comm. on elimination racial discrimination, concluding observations on sudan, u.n. doc. cerd/c/sdn/co/12-16, at 19 (june 12, 2015); comm. on elimination racial discrimination, concluding observations on togo, u.n. doc. cerd/c/tgo/co/18-19 (jan. 18, 2017). 153 see, e.g., comm. on elimination racial discrimination, concluding observations on azerbaijan, u.n. doc cerd/c/aze/co/4, at 10 (apr. 14, 2005); comm. on elimination racial discrimination, concluding observations on belarus, u.n. doc. cerd/c/65/co/2, at 11 (dec. 10 2004); comm. on elimination racial discrimination, concluding observations on belarus, u.n. doc. cerd/c/blr/co/20-23 (dec. 21, 2017); comm. on elimination racial discrimination, concluding observations on belgium, u.n. doc. cerd/c/bel/co/15 (apr. 11, 2008); comm. on elimination racial discrimination, concluding observations on belgium, u.n. doc. cerd/c/bel/co/16-19 (mar. 14, 2014); comm. on elimination racial discrimination, concluding observations on botswana, u.n. doc. cerd/c/bwa/co/16, at 20 (apr. 4, 2006); comm. on elimination racial discrimination, concluding observations on burkina faso, u.n. doc. cerd/c/bfa/co/12-19, at 10 (sept. 23, 2013); comm. on elimination racial discrimination, concluding observations on chile, u.n. doc. cerd/c/chl/co/19-21 (sept. 23, 2013); comm. on elimination racial discrimination, concluding observations on congo (democratic republic of), u.n. doc. cerd/c/cog/co/9 (mar. 23, 2009); comm. on elimination racial discrimination, concluding observations on cuba, u.n. doc. cerd/c/cub/co/14-18 (apr. 8, 2011); comm. on elimination racial discrimination, concluding observations on japan, u.n. doc. cerd/c/jpn/co/10-11 (sept. 26, 2018); comm. on elimination racial discrimination, concluding observations on kazakhstan, u.n. doc. 120 colum. j. race & l. [vol. 11:83 bringing consistent attention to the existence of racially discriminatory nationality laws and practices. to be sure, the committee has sometimes homed in directly on discriminatory nationality laws, although it is perhaps worth noting that when it does make reference directly to the convention it tends to cite article 5 without mention of article 1(3).154 general recommendation thirty appears to draw a distinction between denial of nationality and deprivation/withdrawal of nationality. specifically, deprivation of nationality on racially discriminatory grounds is described as a breach,155 whereas in relation to denial, states are urged to “ensure” non-discrimination against “particular groups,” and “pay due attention to” potential discrimination.156 cerd/c/65/co/3 (dec. 10, 2004); comm. on elimination racial discrimination, 62nd sess., u.n. doc. a/62/18, at 75 (2007) (regarding kyrgyzstan); comm. on elimination racial discrimination, concluding observations on namibia, u.n. doc. cerd/c/nam/co/13-15 (june 10, 2016); comm. on elimination racial discrimination, concluding observations on (north) macedonia, u.n. doc. cerd/c/mkd/co/8-10 (sept. 21, 2015); comm. on elimination racial discrimination, concluding observations on peru, u.n. doc. cerd/c/per/co/22-23 (may 23, 2018); comm. on elimination racial discrimination, concluding observations on poland, u.n. doc. cerd/c/pol/co/20-21(mar. 19, 2014); comm. on elimination racial discrimination, concluding observations on united states of america, u.n. doc. cerd/c/usa/co/6 (may 8, 2008). 154 see, e.g., comm. on elimination racial discrimination, concluding observations on kenya, u.n. doc. cerd/c/ken/co/1-4 (sept. 14, 2011); comm. on elimination racial discrimination, concluding observations on maldives, u.n. doc. cerd/c/mdv/co/5-12 (sept. 14, 2011). but see comm. on elimination racial discrimination, concluding observations on côte d’ivoire, u.n. doc. cerd/c/62/co/1 (june 3, 2003); comm. on elimination racial discrimination, concluding observations on dominican republic, u.n. doc. cerd/c/dom/co/13-14 (apr. 19, 2013); comm. on elimination racial discrimination, concluding observations on france, u.n. doc. cerd/c/fra/co/17-19 (sept. 23, 2010); comm. on elimination racial discrimination, concluding observations on namibia, u.n. doc. cerd/c/nam/co/13-15 (june 10, 2016). 155 general recommendation thirty, supra note 146, ¶ 14. 156 id. ¶ 13 (this is also replicated in comm. on elimination racial discrimination, general recommendation thirty-four, on racial discrimination against people of african descent, ¶¶ 47–49, u.n. doc. cerd/c/gc/34 (oct. 3, 2011)). see also michiel hoornick, the right to nationality under the international convention of all forms of racial discrimination: an assessment of its interpretation by the committee on the elimination of racial discrimination, 27 (aug. 6, 2018) (l.l.m. thesis, tilburg university) (on file with university library, tilburg university). 2021] nationality laws 121 our analysis of concluding observations revealed that with respect to denial of citizenship,157 the committee tends to use similar language to that seen in general recommendation thirty, including “draws attention to,” “is concerned,” and “recommends.” for example, with respect to reports that government officials in nepal were seeking to discourage dalits from applying for citizenship and that other groups had been denied citizenship by descent, the committee recommended that nepal ensure that “the laws, regulations and practices contain procedures for issuing citizenship certificates without distinction as to caste.” 158 in 2011, the committee noted that it was “particularly concerned” with the discriminatory provisions in the maldivian constitution that “all maldivians should be muslim, thus excluding non-muslims from obtaining citizenship . . . and affecting mainly people of a different national or ethnic origin.”159 here, the committee referred only to article 5.160 the committee’s concluding observations on cyprus in 2013 noted with concern that naturalization requests from persons of southeast asian origin had been denied, despite meeting requirements for naturalization.161 the committee in that case recommended that cyprus “respect the right to nationality without discrimination.” 162 in 2001, prior to its issuance of general recommendation thirty, the committee in its observations on latvia noted the fact that “only such persons who were citizens of latvia before 1940 and their descendants have automatically been granted citizenship,” while other persons— more than twenty-five percent of the resident population—had to apply for citizenship and were therefore in a disadvantaged position.163 the committee also noted the existence of persons 157 our analysis revealed that denial of nationality on the basis of race/ethnic origin was considered in relation to seventeen countries between 1995 and december 2019 (being bahrain, cambodia, croatia, cyprus, czech republic, estonia, iraq, germany, kenya, maldives, nepal, qatar, republic of korea, switzerland, syrian arab republic, tajikistan, and togo). 158 comm. on elimination racial discrimination, concluding observations on nepal, ¶ 34, u.n. doc. cerd/c/npl/co/17-23 (may 29, 2018). 159 comm. on elimination racial discrimination, concluding observations on maldives, ¶ 10, u.n. doc. cerd/c/mdv/co/5-12 (sept. 14, 2011). 160 id. 161 comm. on elimination racial discrimination, concluding observations on cyprus, ¶ 18, u.n. doc. cerd/c/cyp/co/17-22 (sept. 23, 2013). 162 id. 163 comm. on elimination racial discrimination, concluding observations on latvia, ¶ 12, u.n. doc. cerd/c/304/add.79 (apr. 12, 2001). see also comm. on elimination racial discrimination, concluding observations on 122 colum. j. race & l. [vol. 11:83 who did not qualify for citizenship under the then current citizenship law and who therefore “may not be protected against racial discrimination in their exercise of rights under articles 5(d)(i) and (ii) and 5(e) of the convention.”164 the committee has in some instances made more focused recommendations in relation to discriminatory denial of nationality, pointing to particular reform measures that are “urged” or “requested.” for example, in relation to kenya, the committee recommended in 2011 that kenya make “necessary amendments to its legislation and administrative procedures in order to implement the new constitutional provisions on citizenship.”165 in relation to jordan’s gendered nationality laws, the committee recommended in 2012 that the state party “review and amend the jordanian nationality act (law no. 7 of 1954) in order to ensure that a jordanian mother married to a nonjordanian man has the right to confer her nationality to her children equally and without discrimination.”166 and again in 2017, drawing more explicitly on general recommendation thirty, the committee requested that the state party “amend the jordanian nationality act . . . to eliminate provisions that discriminate against non-arab spouses of jordanian citizens.”167 when the committee utilizes stronger or more forceful language it tends to be in relation to deprivation or withdrawal of citizenship.168 in 2007, for example, the committee stressed with respect to turkmenistan that “deprivation of citizenship on the basis of national or ethnic origin is a breach of the obligation to ensure non-discriminatory enjoyment of the right to nationality,” and “urge[d] the state party to refrain from syria, ¶ 10, u.n. doc. cerd/c/304/add.70 (july 7, 1999) (“the committee is concerned about syrian-born kurds, who are considered either as foreigners or as maktoumeen (unregistered) by the syrian authorities and who face administrative and practical difficulties in acquiring syrian nationality, although they have no other nationality by birth.”). 164 see also comm. on elimination racial discrimination, concluding observations on iraq, ¶ 17, u.n. doc. cerd/c/irq/co/15-21 (sept. 22, 2014) (using slightly stronger language). 165 comm. on elimination racial discrimination, concluding observations on kenya, ¶ 21, u.n. doc. cerd/c/ken/co/1-4 (sept. 14, 2011). 166 comm. on elimination racial discrimination, concluding observations on jordan, ¶ 11, u.n. doc. cerd/c/jor/co/13-17 (apr. 4, 2012). 167 comm. on elimination racial discrimination, concluding observations on jordan, ¶ 23, u.n. doc. cerd/c/jor/co/18-20 (dec. 26, 2017). 168 see hoornick, supra note 156. our analysis revealed that the committee discussed deprivation of nationality in relation to ten countries within the period under examination (being ethiopia, iraq, jordan, kenya, kyrgyzstan, oman, palestine, qatar, sudan, and turkmenistan). 2021] nationality laws 123 adopting any policy that directly or indirectly leads to such deprivation.”169 this language of breach of obligation is striking, as it is considerably stronger than the weaker language of “concern” more commonly invoked in relation to cases of denial of citizenship. in other cases of deprivation, while the language of breach or violation is not invoked, there is nonetheless a more forceful approach. for example, in 2012 the committee noted jordan’s “withdrawal of citizenship from persons originating from the west bank of the occupied palestinian territory,” and “urge[d] the state party to discontinue the practice of withdrawing nationality from persons originating from the occupied palestinian territory.” 170 it has further called for remedial action following unlawful deprivation in the form of reinstatement of nationality in the context of jordan 171 and iraq.172 the difficulty with this differential approach in relation to denial of nationality on the one hand and deprivation of nationality on the other is that its rationale is not explained in either general recommendation thirty or any of the committee’s concluding observations. such a neat dichotomy is not evident in the text of the treaty; it is, after all, not clear why a denial of nationality on racial grounds is any less a violation of article 5(d)(iii)’s right to nationality on non-discriminatory grounds than an active withdrawal of nationality. in only a few concluding observations has article 1(3) explicitly been mentioned, 173 although, notably, it does not 169 comm. on elimination racial discrimination, concluding observations on turkmenistan, ¶16, u.n. doc. cerd/c/tkm/co/5! (mar. 27, 2007) (emphasis added). see also comm. on elimination racial discrimination, concluding observations on ethiopia, ¶ 23, u.n. doc. cerd/c/eth/co/15 (june 20, 2007) (noting with concern the situation of children of parents of eritrean origin, who were deprived of their ethiopian citizenship in the period 1998–2000); comm. on elimination racial discrimination, concluding observations on jordan, u.n. doc. cerd/c/jor/co/13-17 (apr. 4, 2012); comm. on elimination racial discrimination, concluding observations on jordan, u.n. doc. cerd/c/jor/co/18-20 (dec. 26, 2017); comm. on elimination racial discrimination, concluding observations on kenya, u.n. doc. cerd/c/ken/co/1-4 (sept. 14, 2011). 170 comm. on elimination racial discrimination, concluding observations on jordan, ¶ 12, u.n. doc. cerd/c/jor/co/13-17 (apr. 4, 2012). 171 id. 172 comm. on elimination racial discrimination, concluding observations on iraq, ¶ 17, u.n. doc. cerd/c/irq/co/15-21 (sept. 22, 2014). 173 our analysis identified that article 1(3) was mentioned in relation to six countries (being côte d’ivoire, dominican republic, france, iraq, namibia, 124 colum. j. race & l. [vol. 11:83 generally appear to have been relied upon by states parties as a justification or defense of discriminatory nationality laws. rather it has been the committee that has occasionally identified a potential conflict with article 1(3). yet, there is no in-depth analysis in these reports of the scope of article 1(3); rather article 1(3) is most commonly cited without discussion. for instance, in relation to the discrimination against dominicans of haitian origin mentioned above, the committee observed that the various practices “all lead to a situation of statelessness (art. 1(3) and art. 5 (d) (iii)).” 174 however, in two instances, the committee’s relatively more detailed remarks reveal that its focus is indeed on instances where it appears that a state’s discriminatory nationality law or implementation thereof singles out a particular nationality or ethnic group. for example, in relation to france, the committee recommended in 2010 that the state “ensure that, in conformity with article 1, paragraph 3, of the convention, any measures taken in this area should not lead to the stigmatization of any particular nationality.”175 in relation to iraq, the committee noted that it asked the state party “whether the special provision which referred specifically to arab citizens of other countries met the requirements of article 1, paragraph 3, of the convention.”176 while the committee’s increasing willingness to examine and critique nationality laws that may have a discriminatory object or effect is laudable, it is difficult to discern the interpretive methodology applied by the committee in arriving at its interpretation of article 1(3).177 of course, as an exception and sierra leone)—a total of seven reports (twice regarding sierra leone). see sources cited infra notes 174–176. 174 comm. on elimination racial discrimination, concluding observations on dominican republic, ¶ 19, u.n. doc. cerd/c/dom/co/13-14 (apr. 19, 2013). see also comm. on elimination racial discrimination, concluding observations on cote d’ivoire, ¶ 11, u.n. doc. cerd/c/62/co/1 (june 3, 2003); comm. on elimination racial discrimination, concluding observations on namibia, ¶ 28, u.n. doc. cerd/c/nam/co/13-15 (june 10, 2016); comm. on elimination racial discrimination, rep. on the work of its forty-sixth session, ¶ 280, u.n. doc. a/46/18 (feb. 27, 1992) (regarding sierra leone); comm. on elimination racial discrimination, rep. on the work of its fiftieth session, ¶ 588, u.n. doc. a/50/18 (sept. 22, 1995) (regarding sierra leone). 175 comm. on elimination racial discrimination, concluding observations on france, ¶ 11, u.n. doc. cerd/c/fra/co/17-19 (sept. 23, 2010) (emphasis added). 176 comm. on elimination racial discrimination, rep. on the work of its forty-second session, ¶ 303, u.n. doc. a/42/18 (aug. 7, 1987) (regarding iraq). 177 but see thornberry, supra note 2, at 158. 2021] nationality laws 125 to article 1(1), article 1(3) should be narrowly construed.178 but in general, no clear justification has been put by the committee for essentially having read article 1(3) out of the convention in its general recommendation thirty, at least in the context of deprivation of nationality. to the contrary, the instances cited above where article 1(3) has been considered by the committee suggest an ongoing role for the exception, confusing rather than illuminating the committee’s vision of the relationship between article 1(3) and article 5(d)(iii) as articulated in general recommendation thirty. our comprehensive analysis of the committee’s approach to racial discrimination in nationality laws points to two key ongoing problems. first, the committee has continued to use relatively soft language in response 179 to states parties’ invocation of state sovereignty to justify discriminatory nationality laws. 180 indeed, in one of the few individual communications directly to challenge the implementation of nationality laws, the state party, switzerland, relied explicitly on 178 contrary to thornberry, supra note 2, it might be argued that the rule of restrictive interpretation ought to apply here, that is, in favor of the freedom of state sovereignty, but as article 1(3) relates to a state’s negative obligation (to refrain from discriminating against a particular nationality), deference to state sovereignty is not necessarily warranted as a matter of interpretation. for discussion of restrictive interpretation, see, for example, h. lauterpacht, restrictive interpretation and the principle of effectiveness in the interpretation of treaties, 26 brit. y.b. int’l l. 48 (1949); oppenheim’s international law 1279 (robert jennings & arthur watts eds., 2008); ulf linderfalk, on the interpretation of treaties 280–84 (2007). see also brownlie, supra note 63, at 635; arnold mcnair, the law of treaties 765– 66 (1961) (noting that the rule “is believed to be now of declining importance”); territorial jurisdiction of the international commission of the river oder (u.k. v. pol.), judgment, 1929 p.c.i.j. (ser. a) no. 23, at 26 (sept. 10). 179 see comm. on elimination racial discrimination, concluding observations on kuwait, ¶ 31, u.n. doc. cerd/c/kwt/co/21-24 (sept. 19, 2017) (“while noting the state party’s position regarding the sovereign nature of nationality issues, the committee remains concerned that the nationality act does not allow kuwaiti women who marry foreigners to pass on their nationality to their children and spouses on an equal footing with kuwaiti men.”). 180 comm. on elimination racial discrimination, concluding observations on kuwait: addendum, ¶ 2, u.n. doc. cerd/c/kwt/co/2124/add.1. (nov. 12, 2018) (“it should be emphasized at the outset that the granting of nationality is a sovereign right of the state, and that cases are assessed in the light of the state’s fundamental interests.”). see also comm. on elimination racial discrimination, concluding observations on dominican republic, u.n. doc. cerd/c/dom/co/13-14 (apr. 19, 2013). estonia has put forward the reservation of “cultural heritage” as a justification for discriminatory nationality laws. comm. on elimination racial discrimination, concluding observations on estonia, ¶ 15, u.n. doc. cerd/c/est/co/7 (oct. 19 2006). 126 colum. j. race & l. [vol. 11:83 article 1(3) in its argument that the claim was inadmissible.181 in finding the claim to be admissible (although dismissing it on the merits), the committee did not take the opportunity to provide a robust explanation of the relationship between article 1(3) and article 5(d)(iii), but rather relied once again on general recommendation thirty.182 a strong interpretive framework for explaining its application of general recommendation thirty might empower the committee to respond more forcefully to such invocations. the absence of a principled framework for explaining the limited reach of state sovereignty in matters of nationality simultaneously empowers states to continue relying on such claims, and threatens to weaken state engagement with the process of review. second, the committee still does not routinely raise matters of nationality, even in obvious cases of discrimination.183 indeed in some instances, other un treaty bodies have been more active on the topic of racial discrimination in nationality laws than the very treaty body vested with core responsibility in matters of racial discrimination. for example, the committee did not comment on liberia’s nationality laws in its 2001 review,184 whereas the committee on the rights of the child commented on liberia’s discriminatory nationality laws in both its 2004 and 2012 concluding observations.185 in 2012, for example, it noted with regret that: [d]espite its previous recommendation, the granting of citizenship to children born in the state party remains restricted on the basis of colour or racial origin according to the provisions 181 pjetri v. switzerland, communication 53/2013, opinion, comm. on elimination racial discrimination, ¶ 4.2, u.n. doc. cerd/c/91/d/53/2013 (jan. 23, 2017). 182 id. ¶ 6.2. 183 our analysis reveals that there was no discussion of nationality laws in the reviews of sixty-one countries (being albania, argentina, austria, bangladesh, barbados, belize, bolivia, bulgaria, burundi, cabo verde, canada, chad, china, colombia, djibouti, ecuador, fiji, gabon, gambia, ghana, guatemala, guinea, guyana, haiti, holy see, hungary, india, iran, ireland, jamaica, lao people’s democratic republic, lesotho, liberia, mali, malta, mauritius, mexico, mozambique, nicaragua, niger, pakistan, panama, papua new guinea, paraguay, philippines, republic of moldova, romania, saint vincent and the grenadines, seychelles, slovakia, solomon islands, south africa, spain, tonga, trinidad and tobago, turkey, uganda, uruguay, venezuela, yugoslavia (former republic of), and zambia). 184 hoornick, supra note 156, at 27. 185 see comm. on rts. child, concluding observations on liberia, ¶ 32, u.n. doc. crc/c/15/add.236 (july 1, 2004); comm. on rts. child, concluding observation on liberia, ¶ 42, u.n. doc. crc/c/lbr/co/2-4 (dec. 13, 2012). 2021] nationality laws 127 contained in article 27 of the constitution and the alien and the nationalization law, which are contrary to article 2 of the [crc] convention.186 the following section argues that jus cogens and antifragmentation (and the interplay between the two) as interpretive principles are appropriate tools to address this interpretive gap and provide the framework needed to more squarely address the fundamental issue of racism in nationality laws. v. jus cogens as an interpretive principle in the context of racial discrimination and nationality practice while the jus cogens status of the prohibition on racial discrimination in the context of (or as it extends to matters of) nationality has received considerable support, it is often asserted without critical reflection. writing in 1978, paul weis commented that the prohibition of discriminatory denationalization—particularly acts of collective denationalization—may be regarded as a general principle of international law, and “this certainly applies to discrimination on the basis of race which may be considered as contravening a peremptory norm of international law.”187 similarly, laura van waas writes that the jus cogens prohibition “restricts the freedom of states to legislate on nationality matters by demanding that such regulations must not differentiate between individuals on the basis of [race] either in purpose or in effect.”188 according to van waas, the prohibition covers laws that provide for both “access to, [and] withdrawal of, nationality” through “delineating the scope of” such laws,189 and adds that the prohibition of racial discrimination “has joined the ranks of jus cogens.” 190 spiro likewise contends that “the prohibition on race discrimination has since arguably evolved into a jus cogens norm—that is, a norm from which no derogation is permitted,”191 and james a. goldston notes that “[t]he prohibition against racial 186 comm. on rts. child, concluding observation on liberia, ¶ 41 u.n. doc. crc/c/lbr/co/2-4 (dec. 13, 2012). 187 weis, supra note 64, at 125. 188 van waas, supra note 74, at 103. 189 id. 190 id. at 103, 158 n.39 (citing icerd, supra note 11, art. 5). see also general recommendation thirty, supra note 146. 191 spiro, supra note 3, at 716 n.144. 128 colum. j. race & l. [vol. 11:83 discrimination, contained in all major international and regional human rights instruments, is by now a well-settled rule of customary international law that has become a jus cogens, or peremptory, norm.”192 while certainly an important contribution to the discourse around the prohibition of racial discrimination in the context of nationality, observations about the jus cogens status of racial non-discrimination, in the absence of principled analysis, are limited in their ability to advance the robustness of the legal framework. a. impact of conflict with a jus cogens norm the “starting point for any study of jus cogens” is the vclt.193 article 53 of the convention states: a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. for the purposes of the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.194 not only is the content of jus cogens a fiercely contested issue (which will be revisited in depth below), but the timing of the emergence of a jus cogens norm can also be contentious. in order to avoid complicated arguments as to whether a particular jus cogens norm had indeed emerged at the time a treaty was concluded, article 64 of the vclt provides that “[i]f a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.” 195 accordingly, once a jus cogens norm is identified, any existing treaty may be assessed for compliance 192 james a. goldston, holes in the rights framework: racial discrimination, citizenship, and the rights of noncitizens, 20 ethics & int’l aff. 321, 328 (2006). 193 int’l l. comm’n, rep. on the work of its sixty-sixth session, supplement no. 10, u.n. doc. a/69/10, at 277 (aug. 8, 2014) quoted in dire tladi (special rapporteur), second report on jus cogens, ¶ 33, u.n. doc. a/cn.4/706 (mar. 16, 2017). see also int’l l. comm’n, fragmentation of international law, difficulties arising from the diversification and expansion of international law, ¶ 375, u.n. doc. a/cn.4/l.682, (apr. 13, 2006) [hereinafter int’l l. comm’n, fragmentation of international law]. 194 vclt, supra note 101, art. 53. 195 id. art. 64. 2021] nationality laws 129 with the norm, regardless of when precisely the jus cogens norm emerged. however, this raises a challenging issue, namely, the consequences and effects that flow from the presence of conflict with jus cogens norms. the characterization of the effects of jus cogens has been described as “the greater prize than identifying the norm itself.”196 as dire tladi, international law commission (commission) special rapporteur on peremptory norms of general international law (jus cogens), noted in a 2017 report, invalidity of a treaty is often considered “the primary, or even sole, consequence of the jus cogens status of a norm.”197 at first glance, articles 53 and 64 of vclt present a problem for the validity of icerd in light of article 1(3) and its potential inconsistency with the jus cogens prohibition against racial discrimination.198 however, there is an alternative to invaliding a treaty that conflicts with a jus cogens norm. in the 2017 report, special rapporteur tladi explains that the requirement to resort to the “draconian” outcome of treaty invalidity199 when a conflict with jus cogens norms seemingly arises should—and indeed generally can—be avoided by reading treaty provisions in light of jus cogens norms. due to the “fundamental principle” that “treaties are binding on the parties and must be performed in good faith,”200 known as pacta sunt servanda, the validity of a treaty, and not its invalidity, should be strived for when determining if 196 daniel costelloe, legal consequences of peremptory norms in international law 15 (2017), quoted in dire tladi (special rapporteur), third report on peremptory norms of general international law (jus cogens), ¶ 20, u.n. doc. a/cn.4/714 (feb. 12, 2018) [hereinafter special rapporteur, third report on jus cogens]. 197 special rapporteur, third report on jus cogens, supra note 196, ¶ 30. see also kyoj kawasaki, a brief note on the legal effects of jus cogens in international law, 34 hitotsubashi j. l. & pol. 27 (2006); hugh thirlway, the sources of international law (2014). 198 see vclt, supra note 101, art. 44(5) (stating that one key differentiation is that severability of the relevant provision is not possible for cases falling under article 53). see generally special rapporteur, third report on jus cogens, supra note 196, ¶¶ 30–54. 199 special rapporteur, third report on jus cogens, supra note 196, ¶¶ 55–59. 200 documents of the second part of the seventeenth session and of the eighteenth session including the reports of the commission to the general assembly, [1966] 2 y.b. int’l l. comm’n 221, u.n. doc. a/cn.4/ser.a/1966/add.1. 130 colum. j. race & l. [vol. 11:83 such a conflict arises.201 whether or not a treaty conflicts with a peremptory norm “can only be determined after [establishing] the meaning of the treaty,” which, in turn, can only be established through the application of articles 31 and 32 of vclt.202 the commission envisages that jus cogens norms are treated as “strong interpretative principles” 203 to be invoked during the process of interpretation. as well as calling attention to the requirement that treaties or treaty provisions “be interpreted in good faith,” in keeping with the ordinary meaning of the text, and “in their context and in light of the object and purpose of the treaty,” a 2006 report by the commission’s study group on fragmentation emphasizes article 31(3)(c)—which is often “taken to express . . . the principle of systemic integration.”204 article 31(3)(c) provides that the interpreter “shall take into account [a]ny relevant rules of international law applicable in the relations between the parties.”205 according to the commission’s study group, treaties must be interpreted against the background of their normative environment and in keeping with these norms. 206 as the commission’s study group explained, “[t]his points to the need to carry out interpretation so as to see the rules in view of some comprehensible and coherent objective,” and, crucially, to do so in such a way so as to give priority to “concerns that are more important at the cost of less important objectives.” 207 these background rules, according to the 2017 report by the commission’s special rapporteur tladi, include jus cogens norms.208 as cezary mik explains, “[t]his means that in cases of normative conflicts with peremptory norms that can be resolved through interpretation, one has to rely on such interpretative rules that will support a jus cogens-friendly interpretation of 201 special rapporteur, third report on jus cogens, supra note 196, ¶¶ 55–59. 202 id. ¶ 56. 203 int’l l. comm’n, rep. on the work of its fifty-third session, supplement no. 10, u.n. doc. a/56/10, at 85 (2001) [hereinafter int’l l. comm’n, fifty-third session]. 204 int’l l. comm’n, fragmentation of international law, supra note 193, ¶¶ 412–424 (internal quotations omitted) (internal citations omitted). 205 special rapporteur, third report on jus cogens, supra note 196, ¶¶ 55–59 (internal quotations omitted). 206 int’l l. comm’n, fragmentation of international law, supra note 193, ¶ 419. 207 id. 208 special rapporteur, third report on jus cogens, supra note 196, ¶¶ 55–59. 2021] nationality laws 131 dispositive norms.” 209 likewise, special rapporteur tladi summarizes this section of his 2017 report with the following words: “a provision in a treaty should, as far as possible, be interpreted in a way that renders it consistent with a peremptory norm of general international law (jus cogens).”210 the question of whether a jus cogens norm is to be taken into account in the process of treaty interpretation turns on “the applicability of such a rule in a specific case.”211 this requires a two-fold inquiry. first, what is the content of the jus cogens norm (in this case, the norm of racial non-discrimination) and how do matters of nationality fit within this scope? second, what does this mean for a principled interpretation of article 1(3)? b. content of the jus cogens norm of racial nondiscrimination turning first to the content or identification of the norm itself, while it is the case that the prohibition on racial discrimination is broadly recognized as a jus cogens norm of international law,212 the precise content of racial discrimination is often left unaddressed, with pronouncements to the effect that 209 cezary mik, jus cogens in contemporary international law, 33 pol. y.b. int’l l. 27, 73 (2013). 210 special rapporteur, third report on jus cogens, supra note 196, ¶ 67–68 (internal quotations omitted). see also int’l l. comm’n, peremptory norms of general international law (jus cogens): text of the draft conclusions and draft annex provisionally adopted by the drafting committee on first reading, at 5, u.n. doc. a/cn.4/l.936, (may 29, 2019) (draft conclusion 20 adopts a rule to interpret other rules of international law consistently with jus cogens norms as far as possible). 211 mik, supra note 209, at 74. 212 see anthony aust, handbook of international law 10 (2d ed. 2010); alexander orakhelashvili, identification of peremptory norms in international law 54 (2006); michael byers, conceptualising the relationship between jus cogens and erga omnes rules, 66 nordic j. int’l l. 211, 219 (1997); natan lerner, group rights and discrimination in international law 24 (1991) [hereinafter, lerner, group rights and discrimination in international law]; patrick thornberry, confronting racial discrimination: a cerd perspective, 5 hum. rts. l. rev. 239, 240 (2005); thomas r. van dervort, international law and organization: an introduction 408 (1998). int’l l. comm’n, fifty-third session, supra note 203, at 85 (listing the problem of “racial discrimination” as a peremptory norm “clearly accepted and recognized” by international and national tribunals); int’l law comm’n, fragmentation of international law, supra note 193, ¶ 374; dire tladi (special rapporteur), fourth report on peremptory norms of general international law (jus cogens), ¶¶ 56–61, 91–135, u.n. doc. a/cn.4/727 (jan. 31, 2019) [hereinafter special rapporteur, fourth report on jus cogens]; comm. on elimination racial discrimination, rep. on the sixtieth session and sixtyfirst session, supplement at 107, u.n. doc. a/57/18 (nov. 1, 2002). 132 colum. j. race & l. [vol. 11:83 racial discrimination is a jus cogens norm often unaccompanied by any analysis of what that exactly means.213 the restatement (third) of the foreign relations law of the united states defines jus cogens norms to include, among others, the prohibitions against genocide; slavery or slave trade; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and “a consistent pattern of gross violations of internationally recognized human rights.”214 scholars tend to cite this influential statement, together with a handful of icj and regional decisions, to establish the jus cogens status of racial discrimination (or systemic racial discrimination). while majority opinions of the icj have dealt only intermittently and sparingly with jus cogens norms directly, 215 the majority judgment of the court in the seminal barcelona traction216 case has formed the foundation for many scholars’ understanding of jus cogens norms.217 drawing a distinction between obligations owed by a state vis-a-vis another state and those owed to the international community as a whole and supporting a public order theory of jus cogens,218 the court in barcelona traction noted that due to the “importance of the rights involved,” obligations owed to the community as a whole are seen to be obligations erga omnes, meaning where “all states can be held to have a legal interest in their protection.”219 the court listed among these obligations the protection from and prohibition against racial discrimination. 220 in the icj’s 1971 advisory 213 see sources cited supra note 212. 214 restatement (third) of the foreign relations law of the united states § 702 (am. l. inst. 1987). see also id. § 102; evan j. criddle & evan foxdecent, a fiduciary theory of jus cogens, 34 yale j. int’l l. 331 (2009). 215 dire tladi (special rapporteur), first report on jus cogens, ¶¶ 44– 47, u.n. doc. a/cn.4/693 (mar. 8, 2016) (noting that there have been eleven references to jus cogens norms in majority judgments by the icj, all of which “have assumed (or at least appear to assume) the existence of jus cogens as part of modern international law.”). 216 barcelona traction, light and power company, limited (belg. v. spain), judgment, 1970 i.c.j. 3 (feb. 5) [hereinafter barcelona traction]. 217 see thomas weatherall, jus cogens: international law and social contract 240 (2015). 218 criddle & fox-decent, supra note 214, at 344. 219 barcelona traction, supra note 216, ¶ 33. while obligations erga omnes and jus cogens are different concepts, special rapporteur, third report on jus cogens, supra note 196, ¶ 111, contends that the two are interconnected in that “peremptory norms of general international law (jus cogens) establish obligations erga omnes, the breach of which concerns all states.” 220 barcelona traction, supra note 216, ¶ 34. see also id. at 289, 304 (separate opinion of ammoun, j.) (“[t]he principle of equality and that of non2021] nationality laws 133 opinion on namibia, the court additionally noted that “[t]o establish . . . and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the charter.”221 in a separate opinion, judge ammoun reiterated the general assembly position condemning “policies of apartheid and racial discrimination . . . as constituting a crime against humanity.”222 a number of domestic and regional courts have upheld the jus cogens status of racial non-discrimination. supporting a notion of jus cogens as natural law, the inter-american court of human rights in their advisory opinion on judicial conditions and the rights of undocumented migrants stated: [t]his court considers that the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws.223 discrimination on racial grounds which follow therefrom, both of which principles, like the right of self-determination, are imperative rules of law.”) (the court’s reference to these norms was made in obiter.). see vera gowllanddebbas, judicial insights into the fundamental values and interests of the international community, in the international court of justice: its future role after fifty years 327, 333 (a.s. muller, d. rai!, & j.m. thuránszky eds., 1997). 221 legal consequences for states of the continued presence of south africa in namibia (south west africa) notwithstanding security council resolution 276 (1970), advisory opinion, 1971 i.c.j. 16, ¶ 131 (june 21). 222 id. at 79, 81 (separate opinion of ammoun, j.) (citing g.a. res. 2074 (xx), ¶ 4 (dec. 17, 1965)). see also educational, scientific, and cultural organization res. 3/1.1/2, declaration on race and racial prejudice (nov. 20, 1978) (declaring that as a most serious violation of the complete self-fulfillment of human being, apartheid “is a crime against humanity.” a distinction is made in article 4(3) between apartheid and “other policies and practices or racial segregation and discrimination” which are not seen to amount to crimes against humanity but “crimes against the conscience and dignity of mankind.”). 223 judicial condition and rights of undocumented migrants, advisory opinion oc-18/03, inter-am. ct. h.r. (ser. a) no. 18, ¶ 101 (sept. 17, 2003). see also myres mcdougal, harold d. lasswell & lung-chu chen, human rights and world public order: the basic policies of an international law of human dignity 3–6 (1980). 134 colum. j. race & l. [vol. 11:83 the court maintained that “no legal act” that conflicts with the principle of non-discrimination is acceptable,224 and further characterized the jus cogens status of non-discrimination as deriving “directly from the oneness of the human family and . . . linked to the essential dignity of the individual.” 225 importantly, the court affirmed the status of the prohibition on discrimination as jus cogens in the case of expelled dominicans and haitians v. dominican republic. 226 specifically in the context of the right to nationality, the court stated that the prohibition: [r]equires states, when regulating the mechanisms for granting nationality, to abstain from establishing discriminatory regulations or regulations that have discriminatory effects on different groups of a population when they exercise their rights.227 numerous preeminent scholars regard the prohibition on racial discrimination as possessing the status of a jus cogens norm. as noted above, in most instances the listing of racial discrimination has not been accompanied with any analysis of the content of this prohibition. in the third edition of the influential principles of public international law, ian brownlie states that the principle of racial non-discrimination is one of the “least controversial” examples of a peremptory norm, together with the prohibition of the use of force, the law of genocide, crimes against humanity, and the rules prohibiting the slave trade and piracy.228 similarly, schwelb notes that “if there is a subject 224 judicial condition and the rights of undocumented migrants, supra note 223, ¶ 101. 225 id. ¶ 87. 226 expelled dominicans and haitians v. dominican republic, preliminary objections, merits, reparations and costs, judgment, inter-am. ct. h.r. (ser. c) no. 282, ¶ 264 (aug. 28, 2014). 227 id. domestic courts have reiterated the status of the prohibition on racial discrimination. see, e.g., r (european roma rights centre) v. immigration officer at prague airport [2004] ukhl 55, [46] (“state practice virtually universally condemns discrimination on grounds of race. it does so in recognition of the fact that it has become unlawful in international law to discriminate on the grounds of race.”). see also comm. of u.s. citizens in nicaragua v. reagan, 859 f.2d 929, 941 (d.c. cir. 1988) (including racial discrimination as one of the norms to “arguably . . . meet the stringent criteria for jus cogens.”). 228 ian brownlie, principles of public international law 510–13 (3d ed. 1980) (noting also that icerd itself could be added to the existing/suggested body of jus cogens). other examples of jus cogens norms include rules prohibiting aggressive war, the law of genocide, trade in slaves, 2021] nationality laws 135 matter in present-day international law which appears to be a successful candidate for regulation by peremptory norms, it is certainly the prohibition of racial discrimination.”229 referring to both schwelb and brownlie, warwick mckean reasoned in 1983 that if genocide and slavery, as “extreme forms” of the denial of the principle of equality are considered to possess a jus cogens character, then “it is not unreasonable to suppose that other examples of the denial of the principle [of equality] may be contrary to the doctrine” and that non-discrimination “is a strong candidate for inclusion under this heading.”230 other scholars have framed the jus cogens norm as relating to severe or systemic forms of racial discrimination. lauri hannikainen writes that the jus cogens prohibition applies to “severe” forms of discrimination, adding that the prohibition may further extend to “substantial” acts of discrimination which affect the nonpiracy, other crimes against humanity, and the principles of self-determination. id. at 417. 229 egon schwelb, some aspects of international jus cogens as formulated by the international law commission, 61 am. j. int’l l. 946, 956 (1976). 230 warwick mckean, equality and discrimination under international law 277–84 (1983). see also austin, supra note 212, at 10 (“there is no agreement on the criteria for identifying which principles of general international law have a peremptory character: everything depends on the particular nature of the subject matter. perhaps the only generally accepted examples of jus cogens are the prohibitions on the use of force (as laid down in the un charter) and on aggression, genocide, slavery, racial discrimination, torture and crimes against humanity.”); lerner, group rights and discrimination in international law, supra note 212, at 24, 71 (noting that racial discrimination at least is already considered a jus cogens, namely a peremptory rule of international law from which no derogation is possible, a rule that can only be modified by a new rule of the same status. “however, as stated by the un secretary general in a report on the implementation of the program of action for the second decade to combat racism and racial discrimination, the convention is endowed ‘with strong moral force of virtually universality rooted in the overriding principle (jus cogens) that racial discrimination must be eliminated everywhere.’”); van dervort, supra note 212, at 408 (stating that the concept of jus cogens is still subject to some controversy but would generally include the prohibition of the use or threat of force and aggression and the prevention and repression of genocide, piracy, slave trade, racial discrimination, terrorism or the taking of hostages, and torture, even though the evolving nature of these principles does not allow a conclusive definition); john tobin, the u.n. convention on the rights of the child: a commentary 42 (2019) (citing louis henkin, the international bill of rights: the covenant on civil and political rights 249 (1983)). 136 colum. j. race & l. [vol. 11:83 derogable rights listed in article 4 of the iccpr and article 27 of the american convention on human rights.231 in january 2019, the commission published the most recent report by special rapporteur tladi on peremptory norms of general international law. while the report includes the prohibition of apartheid and racial discrimination in its illustrative list of jus cogens norms,232 the report stresses that the content of the norm is “a composite act” made up of “the prohibition of apartheid with racial discrimination as an integral part of that.”233 it is important to note, however, that almost all of the sources which the report draws upon to establish its definition identify racial discrimination as a separate and distinct jus cogens norm, with the prohibition on racial discrimination generally defined in terms of severe or systematic forms of racial discrimination.234 as part of his line of reasoning, the rapporteur refers to the international convention on the suppression and punishment of the crime of apartheid (apartheid convention)235 and the definition of apartheid contained therein as a potential indicator of the scope of the content of this peremptory norm.236 crucially, article 2 of the apartheid convention provides that the term “the crime of apartheid,” includes, inter alia, at article 2(c): [a]ny legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial 231 lauri hannikainen, peremptory norms (jus cogens) in international law: historical development, criteria, present status 340–42 (1988). 232 special rapporteur, fourth report on jus cogens, supra note 212, ¶ 60. 233 id. ¶ 91. 234 see, e.g., john dugard, recognition and the united nations 156–58 (1987); alain pellet, comments in response to christine chinkin and in defense of jus cogens as the best bastion against the excesses of fragmentation, 17 finnish y.b. int’l l. 83, 85 (2006); barcelona traction, supra note 216. 235 international convention on the suppression and punishment of the crime of apartheid, nov. 30, 1973, 1015 u.n.t.s. 243 [hereinafter apartheid convention]. 236 special rapporteur, fourth report on jus cogens, supra note 212, ¶ 91. 2021] nationality laws 137 group or groups basic human rights and freedoms, including the right to work . . . the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association.237 under the apartheid convention, the key elements required to meet the definition of “the crime of apartheid” in article 2(c) appear to be that: first, there is a denial of members of a racial group or groups of a basic human right or freedom (including, among others listed, the right to nationality); second, that the denial of rights is undertaken by legislative or other measures; third, that those measures are calculated to prevent the racial group from participation in the political, social, economic, and cultural life of the country, and deliberately create conditions preventing the full development of the group or groups; and fourth, that the acts are inhuman and committed for the purposes of maintaining the dominance of one racial group over another and systematically oppressing the dominated group. 238 at its most exacting, then, the jus cogens norm of nondiscrimination prohibits forms of racial discrimination that rise to the level of invidious discrimination, with apartheid positioned as a paradigmatic example. this formulation departs in some measure from the more frequent understanding of racial nondiscrimination as a separate jus cogens norm, and represents a particularly high bar for establishing peremptoriness. 239 particularly noteworthy is the requirement for intention to be present. yet, even under this formulation, many manifestations of denial or deprivation of nationality meet the more exacting 237 apartheid convention, supra note 235, art. 2 (emphasis added). 238 see fitzgerald, supra note 35, at 143 (discussing south africa’s racialized system of nationality, which “denationalize[d] the majority black population . . . by assigning their nationality to the fictive new states and stripping them of their south african nationality.”). see also john dugard, south africa’s independent homelands: an exercise in denationalization, 10 denv. j. int’l l. & pol’y 11 (1980). 239 but see int’l l. comm’n, provisional summary record of the 3472nd meeting, u.n. doc. a/cn.4/sr.3427 (july 9, 2019) (noting that following on the debate in the plenary, the special rapporteur in his revised proposal included only “the prohibition of apartheid,” omitting the words “racial discrimination.” the drafting committee decided to retain the reference to composite act of the prohibition of racial discrimination and apartheid.). 138 colum. j. race & l. [vol. 11:83 requirement of systemic racial discrimination and even, arguably, apartheid. 240 to take a paradigmatic example, the nazi policy of stripping citizenship of jewish people is accurately characterized as a measure “calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country,” and deliberately creating “conditions preventing the full development of such a group or groups.”241 however, it is our contention that such a high bar is not in fact required. while some historical and contemporary examples of racialized citizenship laws will satisfy the definition of apartheid, it is not necessary to do so in order to violate the jus cogens norm. as explained above, special rapporteur tladi’s 2019 report cites a wide range of sources that overwhelmingly favor a broader definition of the jus cogens norm, with serious, severe, or systemic racial discrimination widely understood to constitute a violation.242 there is no reason in principle why intention is required in order for racial discrimination to reach the level of serious, severe, or even systemic.243 while there is little to no explicit consideration of the role of intent or purpose within academic discussion on this issue—perhaps not surprising given that deep analysis of the content of the norm is often scant—contemporary understandings of the definition of racial discrimination unequivocally support the notion that racial discrimination may be established in the absence of explicit intent or purpose. as the special rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance clearly articulates, the prohibition on racial discrimination requires states to combat both intentional discrimination as well as discrimination in effect. 244 the language of icerd article 1(1) enshrines this principle, stipulating that any distinction, etc. based on a prohibited ground is to be considered racial discrimination when it has “the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and 240 special rapporteur, fourth report on jus cogens, supra note 212, ¶ 91. 241 apartheid convention, supra note 235, art. 2. 242 special rapporteur, fourth report on jus cogens, supra note 212. 243 for an excellent discussion of intention in the context of icerd, see e. tendayi achiume, beyond prejudice: structural xenophobic discrimination against refugees, 45 geo. j. int’l l. 323, 361–64 (2014). 244 special rapporteur report on contemporary forms of racism, supra note 36, ¶ 18. 2021] nationality laws 139 fundamental freedoms.”245 similarly, the grand chamber of the european court of human rights has held that “a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory even where it is not specifically aimed at that group and there is no discriminatory intent.”246 in that decision, the court ruled that danish laws on family reunification constituted indirect discrimination on the basis of ethnic origin, in violation of article 14 of the european convention on human rights. indeed, the notion that direct discrimination may be made out in the absence of intent might even be said to constitute a general principle of law, given the widespread acceptance in domestic jurisdictions of this notion.247 in sum, while it is widely accepted that the prohibition on racial discrimination has attained the status of a jus cogens norm, little attention has been given to the scope of this prohibition. at its most exacting, the prohibition extends only to laws and practices that amount to apartheid. yet, even on that narrow approach, racial discrimination in nationality laws is capable of violating the norm, as recognized in the very text of the apartheid convention.248 however, such a narrow approach does not have widespread support; rather, both jurisprudence and the views of eminent scholars overwhelmingly support the view that the jus cogens norm extends to severe or systemic forms of racial discrimination, and that such discrimination may manifest in intention or effect. having considered the scope of the jus cogens norm of racial non-discrimination, and how matters of nationality fit within it, the question then becomes one of application. specifically, how does the jus cogens status of systemic racial non-discrimination apply to article 1(3)? what does this mean for methods of interpreting article 1(3) and its application to discriminatory cases of nationality regulation? 245 icerd, supra note 11, art 1(1). 246 biao v. denmark, app. no. 38590/10, ¶ 91 (may 24, 2016), http://hudoc.echr.coe.int/eng?i=001-141941 [https://perma.cc/br9t-9hzb] (citing s.a.s. v. france, app. no. 43835/11, (july 1, 2014), https://hudoc.echr.coe.int/app/conversion/pdf/?library=echr&id=001145466&filename=001-145466.pdf&tid=uexpxlonsk [https://perma.cc/6guz2fxz]). 247 see, e.g., tarunabh khaitan, a theory of discrimination law (2015). 248 apartheid convention, supra note 235, art. 2. 140 colum. j. race & l. [vol. 11:83 vi. toward a principled interpretation of article 1(3) racially discriminatory nationality laws and practices are often calculated to prevent a group or groups from participation in the political, social, economic, and cultural life of the country. even when they do not discriminate explicitly and directly, nationality laws can discriminate against certain groups in effect and produce the same exclusionary result. indeed, the application of racially discriminatory nationality laws to a significant segment of the population of a state is a quintessential example of systemic racial discrimination under the terms of international law. in order for article 1(3) to conform to the principle of integration, it must be applied consistently with the peremptory prohibition against systemic racial discrimination. article 1(3) must also, as is widely accepted, be read in light of the broad protection enshrined in article 5 of icerd of the right to nationality for everyone (and arguably together with other treaty expressions of the right to a nationality) 249 and the international prohibition against arbitrary deprivation of nationality.250 application of the jus cogens norm against systemic racial discrimination to the more prominent and egregious instances of denationalization outlined in part ii is straightforward.251 in each of those cases, there is a denial of the basic human right to a nationality to members of a racial group or groups, and a convincing argument could be made that the relevant measures leading to this outcome were calculated to prevent the racial group from participation in the political, social, economic, and cultural life of the country. yet, even where denial or deprivation of nationality does not meet such a high bar, racialized nationality laws may nonetheless violate the jus cogens norm given that they will, in many cases, meet the definition of serious or systemic racial discrimination. however, does this mean that states can no longer maintain any discrimination in the content or application of nationality laws? in this regard, an important question to 249 udhr, supra note 76, art. 15. 250 id. see also crpd, supra note 76, art. 18(1)(a). article 18(1)(a) provides an explicit prohibition against arbitrary deprivation of nationality. the prohibition has also been acknowledged to constitute a rule of customary international law, and applies whether or not it results in statelessness. brandvoll, supra note 75, at 194. 251 see discussion supra part ii. 2021] nationality laws 141 consider is the distinction between differential treatment and prohibited preferences.252 in general recommendation thirtytwo the committee noted that differential treatment: “[c]onstitute[s] discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim[.]” as a logical corollary of this principle, . . . [general recommendation fourteen] (1993) . . . observes that “differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the convention, are legitimate.”253 to assist in understanding how this applies in the context of article 1(3), it is relevant to recall the drafting history and its focus on post-colonial autonomy and the ability to favor particular national groups. applying this reasoning to a contemporary example, referring to israel’s law of return,254 dan ernst characterizes the moral difference between what he refers to as “positive” and “negative” nationality-based discrimination. 255 the former “singles out individuals of a particular ethnic, religious, or racial group for automatic admission because of that group’s special entitlement to admission.”256 the latter bars or excludes a group or groups of people because they belong to “an unwanted ethnic, religious, or racial group.”257 while, according to ernst, international law clearly prohibits negative nationality-based discrimination, it has been argued that there may exist certain limited circumstances under which nationality-based priorities are 252 see thornberry, supra note 2, at 112. 253 general recommendation thirty-two, supra note 36, ¶ 8 (footnote omitted). 254 law of return, 5710–1950, lsi 4 114 (1949–1950) (isr.); bill and an explanatory note, 5710–1950, hh 48 189 (isr.). see also ayelet shachar, citizenship and membership in the israeli polity, in from migrants to citizens: membership in a changing world 386–433 (t. aleinikoff alexander & klusmeyer douglas eds., 2000). 255 dan ernst, the meaning and liberal justifications of israel’s law of return, 42 isr. l. rev. 564, 583–85 (2009). in its general recommendation thirty-two, cerd described the term “positive discrimination” as a contradictio in terminis which should be avoided in the context of international human rights standards. see general recommendation thirty-two, supra note 36, ¶ 12. 256 ernst, supra note 255, at 584. 257 id. 142 colum. j. race & l. [vol. 11:83 normatively justified. 258 seyla benhabib reasons that giving preference to a certain group with good reasons may not be morally forbidden.259 states in which certain ethnic groups reside are likely to plead for special treatment of their ethnic kin; in fact, there are states, such as israel, which make the right of return a legal privilege for those who can claim jewish descent. similarly, germany has policies which grant special privileges of return to ethnic germans from the baltic states, russia, and other countries of eastern and central europe (the so-called aussiedler and vertriebene). as long as a state does not deny those of different ethnicity and religion equivalent rights to seek entry and admission into a country . . . these practices need not be discriminatory. it is only because such practices are combined with the goals of preserving ethnic majorities and ethnic purity that they run afoul of and are discriminatory from a human rights perspective.260 ernst goes on to note that benhabib’s reasoning is in keeping with icerd’s use of the term “against” (“that such provisions do not discriminate against any particular nationality”) in the text of article 1(3).261 it may be possible to assert that benhabib’s reasoning is also in keeping with the drafting history of article 1(3) which, as shown above, was motivated at least in part by concerns of certain developing and newly independent states related to anti-colonialism or selfdetermination. finally, benhabib’s emphasis on the requirement of “good reason”262 is in keeping with the committee’s statement that “differential treatment based on nationality and national or ethnic origin constitutes discrimination if the criteria for such 258 see id. see also chaim gans, the limits of nationalism 124–47 (2003). 259 see ernst, supra note 255, at 589–601. 260 seyla benhabib, the rights of others 138 n.2 (2004). see also ernst, supra note 255, at 589–601. 261 ernst, supra note 255, at 583 (citations omitted). for a discussion on israel’s new citizenship and entry into israel (temporary order) law, 2003, and the 2006 decision of the high court of justice upholding the constitutionality of that law, see yoav peled, citizenship betrayed: israel's emerging immigration and citizenship regime, 8 theoretical inquiries l. 603 (2007). 262 benhabib, supra note 260, at 132. 2021] nationality laws 143 differentiation, judged in the light of the objectives and purposes of the convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.”263 following the reasoning of the european court of human rights, this may be referred to as justified distinctions.264 in the belgian linguistic case, the court articulates the following twolimbed test for determining the difference between justified and unjustified distinctions: [t]he court, following the principles which may be extracted from the legal practice of a large number of democratic states, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. the existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies.265 the court goes on to contend, with reference to article 14 of the european convention of human rights, that the prohibition on discrimination is violated “when it is clearly established that 263 comm. on elimination racial discrimination, concluding observations on denmark, ¶ 19, u.n. doc. cerd/c/den/co/17 (oct. 19, 2006). see general recommendation thirty-two, supra note 36, ¶ 8 (“on the core notion of discrimination, general recommendation no. 30 (2004) of the committee observed that differential treatment will ‘constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.’”). see also u.n. gaor, 48th sess., supplement no. 18 at 115, u.n. doc. a/48/18 (sept. 15, 1993) (observing that “differential treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the convention, are ‘legitimate’”). 264 see daniel moeckli et al., international human rights law (2010). 265 in re laws on the use of languages in education in belgium v. belgium, app. no. 1474/62, at 31 (feb. 9, 1967), http://hudoc.echr.coe.int/eng?i=001-57524 [https://perma.cc/5ghe-3zry] [hereinafter belgian linguistic case]. see also comm. on elimination racial discrimination, concluding observations on australia, ¶ 24, u.n. doc. cerd/c/aus/co/14 (apr. 15, 2005) (recommending that australia “review its policies, taking into consideration the fact that, under the convention, differential treatment based on citizenship or immigration status would constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of that aim.”). 144 colum. j. race & l. [vol. 11:83 there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.”266 similarly, in the biao v. denmark decision, the grand chamber stated that, while not all differential treatment amounts to discrimination: a difference in treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.267 such matters must be examined closely and the wider context appreciated. as benhabib notes, positive discrimination in nationality laws is problematic when combined with the goals of preserving ethnic majorities and ethnic purity.268 in our view, a contemporary example is the current citizenship crisis in india, which arguably “broadly aim[s] to convert india into a ‘hindu rashtra’ or a homeland for hindus.”269 applying this analysis to the context of racial discrimination in nationality laws, and against the background of the peremptory prohibition of systemic racial discrimination, the effect of articles 1(1) and 1(3) of icerd is that state regulation of nationality must not discriminate, whether directly or indirectly, on the basis of race, color, descent, or national or ethnic origin in the attribution, regulation or deprivation of citizenship, except in narrowly circumscribed situations where differential access to citizenship is applied pursuant to a legitimate aim, and is proportional to the achievement of this aim. this limited exception is logically applicable only in relation to acquisition of or access to citizenship and not deprivation. 266 belgian linguistic case, supra note 265, at 31. 267 biao v. denmark, app. no. 38590/10, ¶ 90 (may 24, 2016), http://hudoc.echr.coe.int/eng?i=001-141941 [https://perma.cc/br9t-9hzb]. see also comm. on elimination racial discrimination, concluding observations on denmark, supra note 263. 268 benhabib, supra note 260, at 138 n.2 269 asian l. ctr., melbourne l. sch., constitutionalism and civil liberties: a briefing note on recent developments in india (2020) (citing edward anderson & christophe jaffrelot, hindu nationalism and the ‘saffronisation of the public sphere’: an interview with christophe jaffrelot, 26 contemp. s. asia 468, 468–82 (2018)), https://law.unimelb.edu.au/__data/assets/pdf_file/0003/3441054/statelessnessin-india-briefing-note.pdf [https://perma.cc/k5qd-b22q]. see also christophe jaffrelot, the fate of secularism in india, in the bjp in power: indian democracy and religious nationalism 51 (milan vaishnav ed., 2019); benhabib, supra note 260. 2021] nationality laws 145 while this suggests that there may be greater state discretion in relation to denial of nationality, there is no clear dichotomy between cases of denial and cases of deprivation as may be suggested in the approach of the committee at times. the limited exception means that in most cases the same analysis applies to racially discriminatory nationality laws whether the measure in question relates to access to or deprivation of citizenship. with regard to the burden of proof, the court in biao v. denmark reiterated the well-established proposition that once differential treatment has been demonstrated, the burden of showing that it was justified is upon the state. while the court in that case applied its longstanding notion that there might exist a margin of appreciation for a state to assess the need for differential treatment, nonetheless “very weighty reasons” 270 would be required in order to justify differential treatment on the basis of nationality. in our view it is clear that no such margin exists in the systemic denial or deprivation of nationality made— whether exclusively or in part—on the grounds of race, descent, or ethnic or national origin, given the jus cogens stature of this principle. vii. conclusion writing in 2006, just a year after general recommendation thirty was published, james a. goldston noted that the general recommendation “offers a useful legal platform for advocacy, litigation and monitoring efforts,”271 yet it is clear that such promise has not been realized. this article has proffered a principled justification for article 1(3)’s narrow interpretation with the aim of sharpening the committee’s persuasiveness. more broadly, to the extent that matters of nationality are still considered a balancing act between individual rights and the prerogative of states in this domain, the interpretive jus cogens principle as it relates to norms of racial non-discrimination and the clarification of the content and contours of the peremptory norm helps to tip the balance in favor of individual rights and forecloses the possibility of excluding the 270 biao, app. no. 38590/10, ¶ 93 (citing gaygusuz v. austria, app. no. 17371/90 (may 23, 1996), http://hudoc.echr.coe.int/eng?i=001-58060); poirrez v. france, app. no. 40892/98 (sept. 30, 2003), http://hudoc.echr.coe.int/eng?i=00161317; andrejeva v. latvia, app. no. 55707/00 (feb. 18, 2009), http://hudoc.echr.coe.int/eng?i=001-91388; ponomaryovi v. bulgaria, app. no. 5335/05 (nov. 28, 2011), http://hudoc.echr.coe.int/eng?i=001-105295). 271 james a. goldston, holes in the rights framework: racial discrimination, citizenship, and the rights of noncitizens, 20 ethics & int’l aff. 321, 346 (2006). 146 colum. j. race & l. [vol. 11:83 right to nationality from the interpretive fold of racial discrimination as a jus cogens norm. this article has provided a principled, doctrinal interpretive framework within which to “read down” the problematic article 1(3) so that the international community no longer brushes over the provision, but rather utilizes it to help combat racially discriminatory nationality laws. the clarification and articulation of legal norms around article 1(3) and a justification for its narrow interpretation adds to the existing legal tools for combatting discriminatory citizenship deprivation and denial, and narrowing the boundaries of state discretion. columbia journal of race and law vol. 15 may 2025 no. 1 article when the executive accidentally supported the movement: participatory democracy and the rise of the non-profit industrial complex michael haber1 abstract the critique of the non-profit industrial complex has spread from movement groups and movement-aligned scholars in fields like race, gender, and ethnic studies to influence scholars in other fields, including legal scholars. despite this growing influence, studies of the non-profit industrial complex devote almost no attention to the importance of the community action program (“cap”), part of the economic opportunity act of 1964, to its development. when cap was created, the johnson administration sought to capitalize on the rhetoric of “participatory democracy” at a moment when that phrase had great cultural cachet but a deeply ambiguous meaning. the implementation of cap exposed a rift between the administration’s expectations of limited participation and the hopes of activists in many low-income communities of color, who had been inspired by a collectivist approach to participatory democracy, one that had grown out of john dewey, the christian pacifist movement, and the highlander folk school to be embraced by the civil rights movement of the early 1960s. as low-income communities of color began to utilize cap as a tool to support grassroots efforts for social change, the johnson administration and congress developed new restrictions on cap to rein in what it accidentally unleashed without suffering the political costs of repealing one of the central components of the war on poverty just months after it had launched. the tactics it developed—stripping funding, influencing board selection, new emphases on quantitative outcomes, reporting, and eligibility for services, and splitting funding for community organizing from funding for service provision—would become core tactics of the non-profit industrial complex. 1 assistant professor of law, brooklyn law school. the author wishes to thank deborah archer, michelle ewert, rebecca robichaud, and anita sinha from the 2024 clinical law review writers’ workshop; michael menser, omavi shukur; jocelyn simonson, and richard winchester; mengfei leng and eric yap for research assistance; and brooklyn law school for summer research support. 2025] when the executive 1286 introduction 1287 i. participatory democracy and its importance to 1960s social movements 1289 ii. the creation of the community action program 1298 iii. two ideas of participatory democracy collide 1306 iv. the johnson administration tries to take back control through a series of tools that became the blueprint for the non-profit industrial complex 1309 conclusion 1313 1287 colum. j. race & l. [vol. 15:1285 introduction arguments that philanthropy can work against social change are not new.2 but when social movement groups, community organizations, and race, gender, and ethnic studies scholars began to criticize what they named the “non-profit industrial complex” in the late 1990s and early 2000s, they made a more specific claim.3 they argued that in recent decades, government and private funders developed a set of techniques to manage dissent, focusing movement energy on service provision and opportunities for professional non-profit sector careers, pushing groups toward more modest or mainstream social or political goals, and encouraging movement groups to conduct their work through well-defined non-profit business entities, rather than as messy, decentralized movements.4 this critique largely grew out of social movements, but has been analyzed and further developed by movement-aligned scholars in varied fields, including in legal scholarship.5 this intervention has influenced social movement scholars, movement groups, and some non profit leaders,6 but studies of the non-profit industrial complex have been quite vague about how 2 see, e.g., karl marx & friedrich engels, manifesto of the communist party 76 (s. moore, trans., 2008) (1848) (criticizing “philanthropists, humanitarians… [and] organisers of charity” who take small steps to help the poor, but only “in order to secure the continued existence of bourgeois society”). 3 see soniya munshi & craig willse, foreword to the revolution will not be funded: beyond the non profit industrial complex xiii, xiii (incite! women of color against violence ed., 2d ed. 2017) (describing the coalition of activists, organizers, service providers, scholars, and others involved developing and spreading the critique to increasingly academic audiences following the 2000 color of violence conference); andrea smith, preface to the revolution will not be funded: beyond the non-profit industrial complex ix, ix (incite! women of color against violence ed., 2d ed. 2017) (noting that the critique had been around “for years” before the publication of the first publication of this anthology in 2007). many of these scholars and activists acknowledge that some came to similar conclusions much earlier, and the work of robert allen is often cited as a significant early theorist of parts of their critique. see generally robert l. allen, black awakening in capitalist america (africa world press ed. 1990). 4 incite!, beyond the non-profit industrial complex, https://incite-national.org/beyond-the-non-profit industrial-complex/. 5 munshi & willse, supra note 3, at xiii. for leading studies on the non-profit industrial complex from scholars of race, gender, and ethnic studies, see, e.g., allen, supra note 3; dylan rodríguez, the political logic of the non profit industrial complex, in the revolution will not be funded: beyond the non-profit industrial complex 21, 37 (incite! women of color against violence ed., 2007); ruth wilson gilmore, in the shadow of the shadow state, in the revolution will not be funded: beyond the non-profit industrial complex 41, 47 (incite! women of color against violence ed., 2d ed. 2017). for examples of the growing influence of these arguments within legal scholarship, see, e.g., sameer ashar & catherine l. fisk, democratic norms and governance experimentalism in worker centers, 82 law & contemp. probs. 141, 145-48 (2019); megan ming francis, the price of civil rights: black lives, white funding, and movement capture, 53 law & soc’y rev. 275, 298 (2019); leah goodridge, professionalism as a racial construct, 69 ucla l. rev. discourse 38, 44 (2022); michael haber, the new activist non-profits: four models breaking from the non-profit industrial complex, 73 u. miami l. rev. 863, 871-73 (2019); veryl pow, grassroots movement lawyering: insights from the george floyd rebellion, 69 ucla l. rev. 80, 91-92 (2022); dean spade, keynote address, 19 colum. j. gend. & l. 1086, 1097-1107 (2010). 6 see, e.g., nicole wires, making economic democracy work: how to practice shared leadership, nonprofit quarterly (nov. 28, 2023), https://nonprofitquarterly.org/making-economic-democracy-work-how-to-practice shared-leadership/ (describing the nonprofit democracy network, a community of practice made of people from 90 nonprofit groups working to create “participatory self-governance” and work outside of the non-profit industrial complex). for a revealing personal narrative from the perspective of a leader of a large legal non-profit on this topic, see justine olderman, in defense of social justice upheaval, vital city (mar. 5, 2025), https://www.vitalcitynyc.org/articles/in-defense-of-social-justice-upheaval-at-nonprofits. olderman describes how she and other executive directors complained about the “new generation of racial and social justice advocates” joining their staffs “so often that [their complaints] became almost cliché – the absence of nuance, the rejection of incrementalism, the denial of progress, the prioritization of self-care, the refusal to grant grace, the unrealistic http://www.vitalcitynyc.org/articles/in-defense-of-social-justice-upheaval-at-nonprofits 2025] when the executive 1288 and when this system developed. perhaps because the non-profit industrial complex has long been associated with—and in many ways enforced by—funding from private foundations, scholars have tended to point generally to major foundations, especially the ford foundation, as the force behind the non-profit industrial complex, but their analyses tend to offer little historical detail.7 this article argues that the non-profit industrial complex was substantially advanced by the johnson administration and its office of economic opportunity through the war on poverty’s community action program (“cap”), part of the economic opportunity act of 1964. cap was a short-lived program that included a significant element of community-based participatory democracy as a central feature of how certain anti-poverty programs would be developed. upon its creation, the program exposed a huge rift between the urban policy “experts” advising the administration and the demands and priorities of low-income communities of color, especially those politicized during the early 1960s civil rights movement. the johnson administration, seeking to minimize the controversy without seeming to abandon one of its signature initiatives, expectations, the demand for decision-making power and so on.” id. but after a long time not taking their concerns seriously, she was convinced to take a new approach: i tried to listen, understand and learn from them…and while it didn’t happen overnight, somewhere along the way, what i heard radicalized me. today, i find myself in agreement with our rebellious staff about a lot of things. i agree that a nuanced and incrementalist approach has not achieved the kind of transformation that the people we serve need and deserve. i agree that our progress has often been co opted by systems of oppression…i agree that we must grapple with systemic racism within our own organizations…i agree that the work is brutally hard and that we should make it as easy as possible for people to take care of themselves while doing it…and i agree that our staff members are the ones who are doing the work. they are our organizations. and they should have more of a voice in what we do and how we do it. id. 7 for instance, in andrea smith’s discussion of the “history of the non-profit system,” she notes that the ford foundation was founded in 1936, that it developed an “active involvement in trying to engineer social change,” and “became involved in the civil rights movement, often steering it into more conservative directions,” but she covers thirty years of history in just a few sentences, not specifying that ford, according to robert allen’s more detailed narrative, did not even consider becoming involved with the civil rights movement until the summer of 1966, largely after the events described in part iii of this article. compare andrea smith, introduction: the revolution will not be funded, in the revolution will not be funded: beyond the non-profit industrial complex 1, 5 (incite! women of color against violence ed., 2007) with allen, supra note 3, at 70. allen unfortunately does not address the origins of the non-profit industrial complex nor does he discuss the role of the johnson administration, as his focus is on the role of the ford foundation in the black power movement later in the 1960s. id. dylan rodríguez presents a more detailed theoretical framework, but gives few historical specifics for his argument that the non-profit industrial complex was not just developed by foundations, but was “an authentic conspiracy of collaboration among philanthropists and state officials, including local police and federal administrators.” rodríguez, supra note 5, at 34 35. one important exception is the work of megan ming francis to excavate the relationship between the naacp and the garland fund prior to brown v. board of education. see generally francis, supra note 5. her analysis is revelatory, but chiefly addresses just one tactic associated with the non-profit industrial complex: the use of funding to influence the priorities of a leading movement organization. the high profile and complexity of the case of the naacp—because the naacp was already the most prominent national civil rights group during the time period she analyzes and because of the brilliance of naacp leaders of that era like w.e.b. du bois and james weldon johnson—makes it something of an outlier to the critical intervention around the non-profit industrial complex, which largely is focused on small, grassroots movement efforts. john witt argues that the relationship between the naacp and the garland fund was not a one-way relationship, but a case of garland “subtly redirect[ing] the naacp” while the naacp was simultaneously “coopting the garland fund…slyly chang[ing] the garland fund’s program.” megan ming francis & john fabian witt, movement capture or movement strategy? a critical race exchange on the beginnings of brown v. board, 31 yale j. l. & human. 520, 529 (2021). most grassroots movement groups lack the resources and sophistication of the naacp of that era and may be unable to effectively push back against these tactics in the kinds of ways witt describes. 1289 colum. j. race & l. [vol. 15:1285 developed a set of tools to tightly control the grassroots groups that were awarded funding under the economic opportunity act without unwinding cap entirely. this is not simply the story of one briefly important government program that featured interesting opportunities for public participation. it is a story of how two ideas about democracy collided, and how that collision helped develop the non-profit industrial complex, which continues to exert significant pressure on both social movements and the non-profit sector today. ultimately, this article is about the tremendous power of the executive branch, the power of grassroots movements to stand up to it, and the importance of grassroots participatory democracy both to those movements and, in the final analysis, to the entire project of liberal democracy. part i presents a history of participatory democracy and how it became so closely interconnected with social movements in the twentieth century. part ii describes how the johnson administration created cap, believing that if it offered opportunities for participation and funding within largely expert-led programs, it could make electoral advances in low-income urban communities of color. part iii describes how those two approaches to participatory democracy collided in cap, and part iv argues that the johnson administration developed tools to quickly recapture control of the opportunities for participation as soon as they started to be used, and that through the johnson administration’s efforts to quickly control cap without admitting defeat, they developed a significant part of the blueprint for the non-profit industrial complex. the conclusion returns to the present, arguing that small-group democracy gives the public a better understanding of, and a deeper commitment to, democratic processes. it further argues that one impact of the development of the non-profit industrial complex is that people in the u.s. have less of a meaningful connection to democracy than prior generations had. this has had a negative impact on both local organizations and the national commitment to democratic principles. it argues that to create a bulwark against oligarchy and corruption and rebuild a national commitment to equity, institutions that purport to be defenders of democracy need to rethink their tendency to rely on expertise at the expense of participatory democracy. i. participatory democracy and its importance to 1960s social movements participatory democracy, a form of governance in which a group of people directly deliberate and make decisions about the policies that affect their lives, first developed in the ancient decision making practices of bands of hunter-gatherers, hundreds of thousands of years before written records.8 those ancient practices evolved in various ways with the rise of larger civilizations, and forms of participatory democracy were used in athens and other ancient greek city-states, in the broader mediterranean and north africa, including kongo, kush, mali, mossi, and phoenicia, in traditional māori practices, in balanese seka, bolivian ayllu, indian panchayats, and in the haudenosaunee confederacy in north america—different groups with their own ideas of self governance formed in different times and places by people that often had no knowledge of one another.9 in europe, democracy was widely understood to mean direct deliberation in participatory self 8 eleanor leacock & richard lee, introduction to politics and history in band societies 1, 1-2 (eleanor leacock & richard lee eds., 1982); mancur olson, dictatorship, democracy, and development, 87 am. pol. sci. rev. 567, 567-68 (1993). 9 david graeber, the democracy project 163 (2013); frank hendriks, vital democracy: a theory of democracy in action 112-14 (2010); michael menser, we decide!: theories and cases in participatory democracy 15-17 (2018). jean-paul gagnon, et al., the marginalized democracies of the world, 8 dem. theory 1, 1-2 (2021). 2025] when the executive 1290 governance for centuries following the mass participatory democracy that lasted in ancient athens from 506-338 b.c.e.10 two thousand years after the height of athenian democracy, most of the founders still understood democracy to mean some kind of participatory democracy and they rejected it as a form of government for the new nation. instead, they sought to create a liberal “mixed” government that would allow for some input from a section of the public—initially, white male property owners—but limit popular power, using checks and balances to control the “mob” by giving additional weight to the interests of the wealthiest, most prominent, and best-educated men, like themselves.11 but over the centuries since the founding, the term “democracy” was appropriated by supporters of the “mixed” u.s. republic and similar governments, redefining the term from meaning participatory self-governance. by the twentieth century, leading political scientists argued that the primary function of elections in a democracy is to legitimize the executive’s power over the citizenry.12 that idea of democracy has largely taken over as the 10 following reforms brought by the athenian magistrate cleisthenes, athens developed four tools for the demos to express itself: in the ekklesia (the people’s assembly, in which around 30,000 citizens were eligible to deliberate and directly administer the government), in the boulé (regional councils of 500 people who made decisions by consensus), through the dikasteria (courts), and through the archai (magistrates). hendriks, supra note 9, at 113. athenian democracy had a robust culture of debate and lawmaking, with thousands of men eligible to vote having the right to speak, propose a new law or new tax, or bring a legal case against another member. menser, supra note 9, at 12-17. athens also democratized governmental administration and had a society-building agenda: government roles were elected or appointed through sortition, everyone was called on for brief periods of service, and the entire project emphasized philia, community and friendship. id. but athenian democracy was only able to thrive because of a deeply exploitative economy that relied on domestic labor by women and on the manual labor of enslaved people, whose work “permitted the sudden florescence of greek urban civilization.” perry anderson, passages from antiquity to feudalism 36-37 (1974). the u.s. founders learned about the athenian ekklesia through the works of aristotle, plato, thucydides, and other classical writers. carl j. richard, the founders and the classics: greece, rome, and the american enlightenment 124 (1994). 11 robert a. dahl, how democratic is the american constitution? 24-25 (2d ed. 2003); russell l. hanson, the democratic imagination in america: conversations with our past 60-68 (1985); alexander keyssar, the right to vote: the contested history of democracy in the united states 2 (2000); jacques rancière, hatred of democracy 53 (2d ed., 2009); m.j.c. vile, constitutionalism and the separation of powers 83-87 (2d ed. 1998); roy n. lokken, the concept of democracy in colonial political thought, 16 william & mary quarterly 568, 570-74 (1959). even accepting a minimal concept of representative democracy that requires only that subjects get to vote for the representatives who govern them, what the founders created was a very limited democracy. there is no mention of the public voting in the constitution. see u.s. const. art. ii, § 1 (describing the requirements related to how each state legislature may appoint electors, a small group that elects the president). women could not vote until the ratification of the nineteenth amendment in 1920. u.s. const. amend. xix (ratified 1920). most black americans could not vote until the voting rights act of 1965. voting rights act of 1965, pub. l. no. 89-110, 79 stat. 437 (codified as amended in sections of 42 and 52 u.s.c.). non-citizens, including lawful residents, may not vote in federal elections. 18 u.s.c. § 611 (2000). since the world war i era, states have not allowed non-citizens to vote in state elections either. jamin b. raskin, legal aliens, local citizens: the historical, constitutional, and theoretical meanings of alien suffrage, 141 u. penn. l. rev. 1391, 1397-1417 (1993). u.s. citizens in washington, d.c. do not have congressional representation and have only had the right to vote in presidential elections since 1961. u.s. const. amend. xxiii (ratified 1961). puerto rico, guam, the northern mariana islands, the u.s. virgin islands, and american samoa have limited representation based on the insular cases. see generally de lima v. bidwell, 182 u.s. 1 (1901); downes v. bidwell, 182 u.s. 244 (1901); goetze v. u.s., 182 u.s. 221 (1901). these cases “have no foundation in the constitution and rest instead on racial stereotypes. they deserve no place in our law.” u.s. v. vaello madero, 596 u.s. 159, 180 (2022) (gorsuch, j., concurring). 12 the austrian economist joseph schumpeter’s 1942 book capitalism, socialism and democracy influenced a generation of mid-century political scientists called the democratic pluralists who shaped both academic and popular conceptions of democracy in the second half of the twentieth century. carole pateman, participation and democratic theory 3-5 (1970). schumpeter argues that people could never agree on a set of principles that would 1291 colum. j. race & l. [vol. 15:1285 popular understanding of the term, and now, maybe more than ever, americans see democracy as a form of government in which, on the day after election day, “once more the business of government has become the privilege of the few.”13 the few opportunities for public participation under u.s. law that survive—in things like land use processes, civilian police review boards, and participatory budgeting—tend to be highly-managed “window dressing” that often reinforces existing social hierarchies.14 but participatory democracy did not disappear entirely in the eighteenth century, despite being rejected by the founders and by liberal states in europe. more participatory conceptions of democracy continued to be debated within political philosophy, and they spread from philosophy to twentieth century social movements. in europe, much of that philosophical tradition derives from jean-jacques rousseau who, possibly influenced by his study of democratic practices among indigenous americans,15 developed a theory of democracy radically opposed to the hobbesian promote the common good, so the task of governing is best left to members of the ruling class—and schumpeter is a firm believer in the merits of class hierarchy—who want to use their intellects to try to make those decisions as best as possible. joseph a. schumpeter, capitalism, socialism and democracy 251-53 (5th ed. 1976). schumpeter rejects democracy’s meaning as a mode of popular participation in government and redefined the term as an “institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote.” id. at 269. it is a model that ties democracy to the logic of the marketplace, where citizens are akin to consumers whose only role is to express their preference every few years and then, “once they have elected an individual, political action is his business, and not theirs.” id. at 295. 13 hannah arendt, on revolution 237 (1963). 14 michele estrin gilman, beyond window dressing: public participation for marginalized communities in the datafied society, 91 fordham l. rev. 503, 555 (2022) (arguing that participatory mechanisms are promising but risk “becoming a form of ‘window dressing,’ in which the views of marginalized people are solicited and ignored, while giving cover to the entities that deploy the systems.”) see david alan sklansky, police and democracy, 103 mich. l. rev. 1699, 1807-08 (2005) (describing the substantial differences between the “ambitious varieties of participatory democracy that gained currency in the 1960s and 1970s” and the “watered-down, status-quo version of participatory democracy…hidden by their common vocabulary.”) participatory budgeting programs are opportunities for the public to engage in city budgeting over a small portion of a city budget by local area within a city. clayton p. gillette, the subdivided city, 133 yale l.j. 2700, 2721 (2024). while appearing to make budgeting more democratic, u.s. efforts to implement participatory budgeting can end up with forms of “managed participation” that reinforce hierarchies of social power, rather than reduce them. celina su, beyond inclusion: critical race theory and participatory budgeting, 39(1) new pol. sci. 126, 134-36 (2017). the process can end up benefitting wealthy and gentrifying neighborhoods at the expense of the neighborhoods that are most in need while, at the same time, forcing community activists to fight over small amounts of money instead of organizing for more meaningful political power. liza featherstone, participatory budgeting: why not fix everyone’s sink?, shelterforce (jun. 5, 2018), https://shelterforce.org/2018/06/05/participatory-budgeting-why-not-fix-everyones-sink/. 15 see david graeber & david wengrow, the dawn of everything: a new history of humanity 536 n.49 (2021); donald a. grinde, the iroquois and the nature of american government, 17 am. indian culture & res. j. 153, 166 (1993). the haudenosaunee confederacy, which formed in the twelfth century and reached its peak in the seventeenth century, was widely known among colonists and interested europeans. formed initially as a peace accord between the cayuga, mohawk, oneida, onondaga, and seneca nations, the haudenosaunee confederacy was roughly the same size as the democracy in athens and was also anchored by face-to-face assemblies. menser, supra note 9, at 17-18. the tuscarora nation joined later, and the federation has historically been called the kanonsionni, the six nations confederacy, and the iroquois confederacy; they use the name haudenosaunee today. id. founders like benjamin franklin and thomas jefferson were closely familiar with the haudenosaunee confederacy, which some argue may have been a source of inspiration for the u.s. constitution. robert j. miller, american indian constitutions and their influence on the united states constitution, 159(1) proceedings of the am. phil. soc. 32 (2015); samuel b. payne, jr., the iroquois league, the articles of confederation, and the constitution, 53 william & mary quarterly 605 (1996). the haudenosaunee had a far more inclusive understanding of who could participate in their democracy than the athenians, both by not having a class of enslaved people deemed unfit to participate and by allowing women to participate in the democracy through a bicameral system that required approval 2025] when the executive 1292 view of the state as a form of protection from a “nasty, brutish, and short” life of perpetual war in a cruel, violent state of nature.16 rousseau acknowledges the social contract offers some physical protections, but argues that it also robs humans of their “natural liberty” and that the role of government should be to maximize natural liberty by encouraging as much collective community participation as possible.17 this kind of participation has an integrative effect, helping each participant come to see themselves as a part of the whole, where people can ultimately grow to perceive no conflict or distinction between private and public, between freedom and community.18 rousseau’s idea that collectivity is a source of liberty rather than an infringement on individual freedom would influence a small movement of early twentieth-century intellectual, pacifist christians—quakers, unitarians, congregationalists, and others—who began to synthesize their religious views with progressive era liberalism and the ideas of the labor-focused, broadly socialist left.19 john dewey was already an established professor when this movement was developing in the 1910s, but his later political philosophy reflects a deep engagement with the ideas being debated within this group. dewey’s theories of democracy were also deeply rousseauean, calling for greater participation in face-to-face democratic decision-making processes and arguing that democracy is not just a matter of government institutions, but “a form of moral and spiritual association”20 between people that should be “put in force in the attitudes which human beings display to one another in all the incidents and relations of daily life.”21 he also argued that individual liberty can exist “only in rich and manifold association with others…an individualized self making a distinctive contribution and enjoying in its own way the fruits of association.”22 to dewey, democracy requires that “means and ends” are in alignment, rejecting both liberals who would impose top-down government reforms and socialists who tolerated anti-democratic means to further egalitarian ends.23 in the early 1910s, when dewey was teaching at columbia university, a group of young christian pacifist students at the new brunswick theological seminary in new jersey, including a.j. muste, would travel to columbia every week to take classes with him.24 after completing seminary, muste joined the fort washington collegiate church in manhattan, where he led study groups sponsored by the ymca on topics like child labor, peace, and marxism.25 at the outbreak by both a men’s and women’s council before many proposals were approved. menser, supra note 9, at 17-18. their system had an egalitarian, communal economic component as well, as parcels of haudenosaunee land were owned collectively and temporarily granted to families to care for based on their family size, agricultural talents, and equity principles. id. at 20-21. 16 thomas hobbes, leviathan 97 (oxford univ. press 1965)(1651). 17 menser, supra note 9, at 11-12; pateman, supra note 12, at 24-25 (1970); jean-jacques rousseau, the social contract 65-68 (maurice cranston trans., 1968). 18 pateman, supra note 12, at 26-27; rousseau, supra note 17, at 61. 19 leilah danielson, american gandhi: a.j. muste and the history of radicalism in the twentieth century 38-39 (2014). 20 john dewey, the ethics of democracy, in the political writings 59, 59 (debra morris & ian shapiro eds., 1993). 21 john dewey, creative democracy – the task before us, in the political writings 240, 242 (debra morris & ian shapiro eds., 1993). 22 john dewey, the public and its problems 150 (1946). 23 john dewey, democracy is radical, in america’s public philosopher: essays on social justice, economics, education, and the future of democracy 19, 22-23 (eric thomas weber ed., 2021); john dewey, why i am not a communist, in america’s public philosopher: essays on social justice, economics, education, and the future of democracy 88, 90-92 (eric thomas weber ed., 2021). 24 danielson, supra note 19, at 41-43. 25 id. at 46. muste would leave the reformed church, but much of the infrastructure he helped to establish 1293 colum. j. race & l. [vol. 15:1285 of world war i, the british quaker henry hodgkin founded a group called the fellowship of reconciliation, which tied quaker beliefs in pacifism and democracy26 to a broader philosophical commitment to equality and social justice.27 in november 1915, as the u.s. was preparing to enter world war i, hodgkin came to a ymca in garden city, new york, to promote the fellowship of reconciliation within the community of study groups that muste helped to found.28 the fellowship of reconciliation espoused the deweyan view that “the means and the end are so intimately related that it is impossible to get a coordinated and co-operative world by destructive methods.”29 the group adopted quaker meeting traditions, like using consensus decision-making, “laying aside” issues for future reflection, and invoking the concept of “fellowship” to soften members’ criticisms of other members’ ideas.30 these ideas spread after world war i, and pacifists in this tradition built cooperatives, communes, and consensus-driven anti-war organizations that all aimed to embody participatory democracy,31 spreading their ideas through publications like politics, direct action, and liberation.32 this christian pacifist movement and its emphasis on participatory democracy would make inroads within the labor movement, even as many union leaders were fighting against union democracy in favor of a top down, professionalized “business unionism.”33 labor educators in union education departments, independent labor colleges, and union summer schools drew on dewey’s theories to develop participatory, self-directed pedagogy.34 the brookwood labor college recruited muste to lead it, and muste trained myles horton, who came out of his experience with the goal of creating a southern school to train labor activists and educators, which he formed as the highlander folk school in 1932.35 ella baker—who would popularize participatory democracy as a leader in the 1960s civil rights movement, most notably as an advisor to the student nonviolent coordinating committee (“sncc”)—came to brookwood the following year, and together baker and horton would use the pedagogical emphasis on participatory, collective decision-making that they experienced at brookwood as both a teaching model and an organizing tool.36 horton, a working-class white southerner, grew out of this christian pacifist movement, studying with muste at brookwood and, at union theological seminary, with reinhold niebuhr, who had been a leader of the fellowship of reconciliation but who was increasingly questioning remained in the new york metropolitan region. id. at 47-49. 26 quakers had long been tied to pacifism and democracy in england and the u.s., both stemming from their belief that god lives within every individual and that every individual is therefore sacred. frederick b. tolles, quakerism and politics 18-23 (1956). earlier in u.s. history, quakers were prominent abolitionists and played a leading role in developing a non-denominational, multiracial abolitionist movement. daniel akst, war by other means 56-58 (2022). 27 akst, supra note 26, at 59-60; danielson, supra note 19, at 53-54. 28 akst, supra note 26, at 59-60; danielson, supra note 19, at 54. 29 francesca polletta, freedom is an endless meeting: democracy in american social movements 27 (2002) (quoting fellowship of reconciliation member paul jones). 30 id. at 49. 31 id. at 28; irwin unger, the movement: a history of the american new left 1959-1972 15 (1974). one notable creation is non-commercial public radio, which a pacifist named lewis hill started as pacifica radio in the late 1940s after developing the concept in dialogue with other conscientious objectors during world war ii. ralph engelman, public radio and television in america: a political history 44-46 (1996). 32 polletta, supra note 29, at 28. 33 id. at 29-30. 34 id. at 28-35. 35 id. at 36. 36 id. 2025] when the executive 1294 the philosophy of nonviolence.37 horton formed the highlander folk school in rural tennessee, originally with the goal of supporting the development of labor movement leaders in the south.38 but as the labor movement turned increasingly to business unionism, highlander began to pivot away from its focus on labor. highlander’s transition began with a series of multiracial workshops for community leaders and students, which grew into a project focused on integrating schools and communities.39 this is where the participatory democracy of dewey, muste, and horton first meaningfully crossed paths with the civil rights movement. in 1955, rosa parks attended the highlander desegregation workshop and when she returned to montgomery, “she was so happy and felt so liberated and then as time went on she said the discrimination got worse and worse to bear after having…been free of it at highlander.”40 parks famously refused to give up her seat to a white bus passenger that december 1, and the montgomery bus boycott ensued, led by martin luther king, jr. and the newly-formed southern christian leadership conference (“sclc”). sclc received support from christian pacifists seasoned in gandhian non-violence tactics through their experience in the fellowship of reconciliation, including glenn smiley and bayard rustin.41 rustin saw his role as a supportive, advisory one, and he aimed to not overstep those bounds, but he later became deeply critical of sclc, calling dr. king’s leadership “autocratic.”42 baker agreed.43 the montgomery bus boycott was a compelling tactic because the city could not force people to travel by bus despite the boycott’s economic impact, but a few years later, when groups of students began holding sit-ins at segregated lunch counters, it was an affirmative demand for fair treatment, a significantly more confrontational tactic.44 sit-ins at segregated lunch counters were started by just a few college students in greensboro, north carolina but spread across the south rapidly; between february and april 1960, more than 50,000 people participated in sit-ins.45 these were locally organized, autonomous actions not coordinated by any larger group,46 but highlander’s influence was evident: the summer before the sit-ins began, prominent sit-in leaders from across the south attended highlander’s 1959 college workshop, including marion barry, 37 john m. glen, highlander: no ordinary school, 1932-1962 10 (1988). niebuhr was moving away from pacifism and toward a philosophy of christian “realism” that he would popularize in his 1932 book, moral man and immoral society. he had come to see pacifism as simply an unrealistic tool to fight the most important problems of the 1930s: capital would not realistically yield to labor without force; african americans would never realistically have equality without force; and the militaristic, authoritarian governments rising in europe could not be stopped without military force. ira chernus, american nonviolence: the history of an idea 112 (2004); andrew j. ballou, from pacifism to nonviolent direct action: the fellowship of reconciliation and social christianity, 1914 1947, 7-8 (2013) (ph.d. dissertation, boston university), http://open.bu.edu/server/api/core/bitstreams/34c435e1 afb5-41f8-a045-0e3100640c97/content. by 1940, niebuhr distanced himself from both the socialist party and pacifism advocated for war against nazi germany. chernus, supra, at 123. 38 glen, supra note 37, at 10. 39 id. at 125-30. 40 id. at 136 (quoting parks’s friend virginia durr) (emphasis in original). 41 ballou, supra note 37, at 355-56. polletta, supra note 29, at 40. smiley was an officer of fellowship of reconciliation and rustin was a leader of fellowship of reconciliation, the war resisters league, and the congress of racial equity (core). unger, supra note 31, at 15-16; ballou, supra note 37, at 355-56. 42 polletta, supra note 29, at 40. 43 id. 44 barbara ransby, ella baker and the black freedom movement: a radical democratic vision 237 (1998). 45 polletta, supra note 29, at 57. 46 id.; van gosse, rethinking the new left: an interpretive history 38 (2005). http://open.bu.edu/server/api/core/bitstreams/34c435e11295 colum. j. race & l. [vol. 15:1285 james bevel, julian bond, john lewis, and diane nash.47 baker had been active in various leftist and civil rights groups since her youth,48 including a cooperative economic project called the young negroes’ co-operative league, which informed her opposition to organizational hierarchy.49 she helped to foster a similar spirit at highlander, where she spoke against “leader-centered groups” and urged instead the creation of “group centered leadership,” emphasizing the leader as a facilitator, not a person who controls the group or seeks to have clout with “establishment people.”50 despite having helped to found sclc, baker always felt herself to be “an outsider within” the group because of its hierarchy, gender bias, tendency toward unilateral decision-making, and, ultimately, what she saw as a “cult of personality” forming around dr. king.51 under the auspices of sclc, baker organized a convening of the student sit-in activists at her alma mater, shaw university,52 but baker believed that sclc leadership—rev. wyatt walker, ralph abernathy, and dr. king—were trying to “capture” the student activists and bring them under sclc’s control.53 in contrast, baker wanted to nurture the radical impulses of the young activists, urging them to see their mission as broader than desegregation and as part of a global struggle for freedom, warning them against organizational bureaucracy and reliance on charismatic public-facing leadership, and counseling the students to watch out for manipulation by movement elders.54 in the words of julian bond, baker “didn’t say ‘don’t let martin luther king tell you what to do,’…but you got the real feeling that that’s what she meant.”55 the students formed sncc as a separate body from sclc, adopted a broad political agenda, and emphasized participatory democracy, all largely inspired by baker, who remained involved in sncc as an “adult advisor,” but not sncc’s leader.56 baker was deeply committed to participatory democracy because she wanted to make sure that she and others who might be outsiders in a world of male leaders would be fully heard through an inclusive, consensus-oriented process.57 the philosophy was not just to let the members vote, but to have the marginalized members of the group have their voices centered, so that the views of all participants could be heard.58 this required a change in mindset; individual members needed to develop new interpersonal relationships based on a more humane order than the exploitive relations of the larger culture.59 she sought to instill in sncc members an insistently democratic way of living, being, and interacting that in itself reflected a deep commitment to inclusivity.60 47 polletta, supra note 29, at 64. 48 ransby, supra note 44, at 6. 49 jessica gordon nembhard, collective courage: a history of african american cooperative economic thought and practice 119-20 (2014). 50 carol mueller, ella baker and the origins of “participatory democracy”, in the black studies reader 79, 85 (jacqueline bobo et al. eds., 2004). 51 id. at 4-6; joanne grant, ella baker: freedom bound 38 (1998). 52 ransby, supra note 44, at 239-42. 53 id. at 242-43. 54 id. at 244-46. 55 in memoriam: ella baker, sncc legacy project, https://sncclegacyproject.org/in-memoriam-ella-baker/. 56 for a detailed history of the creation of sncc, see charles m. payne, i’ve got the light of freedom: the organizing tradition and the mississippi freedom struggle 67-102 (1995); see generally mueller, supra note 50. 57 ransby, supra note 44, at 309-10. 58 id. at 368. 59 id. at 369. 60 id. at 258. 2025] when the executive 1296 years before “the personal is political” became a slogan or prefigurative politics were theorized in those terms, baker prioritized “interaction, discussion, debate, and consensus” above lobbying and electoral politics.61 this did not mean that each person got to direct every decision, but rather that everyone was encouraged to participate; facilitators aimed to not direct the conversation but to ask questions to help members clarify and refine their positions, and aimed for responsibilities and procedures to be clear to all.62 above all, baker pushed for sncc to focus on building capacity and leadership in local black communities, not just on mobilizing people to show up for specific demonstrations or events.63 having big rallies and giving speeches on television was not as important as what she called “spadework”: the behind-the-scenes, interpersonal community building that prepares the ground for social change, just as tilling the dirt can prepare it for growing something new.64 baker’s model would become a significant inspiration for the emerging, largely white student new left as well. students for a democratic society (“sds”) formed at the university of michigan in 1959 when graduate student al haber renamed an older socialist student organization—the student league for industrial democracy (“slid”), a small student branch of the league for industrial democracy.65 a conference haber had planned in ann arbor on “human rights in the north” came to focus on the student sit-in movement, and the conference attracted civil rights leaders from across the country, including bayard rustin and james farmer, leaders from the congress of racial equality (“core”) and the naacp, as well as tom hayden, the undergraduate student editor of the michigan daily.66 hayden studied with a michigan political philosopher named arnold kaufman, who had recently coined the phrase “participatory democracy,” articulating an individualistic idea of participatory democracy that sought “the development of human powers of thought, feeling, and action.”67 haber and hayden began to travel around the country to find like-minded students to join sds.68 hayden went to georgia and mississippi and was deeply inspired by sncc’s participatory organizing model, later reflecting: “mechanics, maids, unemployed people taking things into their own hands. i kept wondering, ‘where did these people come from? really, where have i been?’”69 61 id. at 370. “the personal is political” was a slogan of second wave feminism, popularized by carol hanisch’s essay the personal is political, written in 1969 and published in 1970, though hanisch says the phrase itself likely was written by her editors, shulie firestone and anne koedt. carol hanisch, introduction to the personal is political 1, 1 (jan. 2006), https://www.carolhanisch.org/chwritings/personalispol.pdf. prefigurative politics are forms of political action in which the processes used in organizing and building a political movement are designed to already be constructing the future world the movement wants to see. for early definitions of prefiguration, see carl boggs, marxism, prefigurative communism, and the problem of workers’ control, 6 radical am. 99 (1977-1978); wini breines, community and organization: the new left and michels’ “iron law”, 27(4) soc. probs. 419, 421 (1980). 62 polletta, supra note 29, at 55-57. 63 id. 64 payne, supra note 55, at 85. 65 james miller, democracy is in the streets: from port huron to the siege of chicago 22-36 (1987); kirkpatrick sale, sds 7-13 (1973). the student league for industrial democracy had just three chapters, at columbia, yale, and michigan; the chapters at columbia and yale did not even use the name slid, they went by “john dewey discussion club.” id. this convention reflects the continuing importance of dewey to the intellectual left even into the 1950s and 1960s. the author has no knowledge of a familial relationship with haber. 66 sale, supra note 65, at 13. 67 see arnold s. kaufman, human nature and participatory democracy, 3 nomos: am. soc’y pol. legal phil. 266, 272 (1960). 68 polletta, supra note 29, at 125. 69 miller, supra note 65, at 57. http://www.carolhanisch.org/chwritings/personalispol.pdf 1297 colum. j. race & l. [vol. 15:1285 much of sds’s initial work was inspired by and related to the work of sncc.70 coming out of a traditional socialist organization, sds wanted to emphasize that they were a new left, and when hayden began to draft a mission statement for the group, he sought inspiration outside of the dominant marxist-leninist tradition, instead drawing on the writings of dewey and muste and his observations of sncc.71 hayden wrote a first draft of a mission statement. a group of 59 students and a few advisors met in a union work camp in port huron, michigan, to develop hayden’s draft into an official group mission statement.72 the revised draft that came out of their collaborative review, which would become known as the port huron statement, became the key 1960s text that brought the phrase “participatory democracy” from kaufman to the general public.73 the first mimeographed copies of the port huron statement emerged in july 1962 and “[f]rom the start…had an almost mythic stature.”74 as a phrase, “participatory democracy” captured readers’ imaginations like a “stick of conceptual dynamite,” but the term was just vague enough that it seemed to simultaneously appeal to people who sought a return to the founders’ ideals, modest social reform, and revolutionary movement politics.75 this broad appeal sparked a sudden “participation explosion.”76 participatory democracy, however it was interpreted, was in the air and it quickly became a huge influence on the “popular political vocabulary.”77 jumping on the trend, the johnson administration did not call for some limited opportunities for community participation when it drafted the text of cap, but mandated that programs receiving funding would be “developed, conducted, and administered with the maximum feasible participation of the residents of the areas and members of the groups served.”78 this “maximum feasible participation” mandate seems to almost echo the language of sds or the organizing approach taken by baker,79 but the johnson administration had a completely different understanding of how participatory democracy would function in cap. 70 sale, supra note 65, at 13. 71 polletta, supra note 29, at 126; sale, supra note 65, at 25. although associated with sds in the u.s., the term new left first appeared in the u.k., from a group of socialist students and younger intellectuals around the new left review who sought to reinvigorate the labor party, including the later prominent cultural theorist, stuart hall. unger, supra note 31, at 18; gosse, supra note 46, at 4-5; stuart hall, life and times of the first new left, 61 new left rev. 177 (2010). 72 miller, supra note 65, at 13; polletta, supra note 29, at 126. hayden began the first draft from a jail cell in albany, georgia, after travelling south to support the sit-in movement on a “freedom ride,” and was inspired by the students coming from all over the country, risking jail or worse, to support the civil rights movement. tom hayden, participatory democracy: from the port huron statement to occupy wall street, nation (mar. 27, 2012), https://www.thenation.com/article/archive/participatory-democracy-port-huron-statement-occupy-wall-street/. 73 menser, supra note 9, at 27. the discussion of participatory democracy in the port huron statement reflects a tension that might be more broadly present in the student left of the 1960s, a tension between a desire for a collectivist politics and a commitment to authenticity, individualism, and self-fulfillment: “politics has the function of bringing people out of isolation and into community, thus being a necessary, though not sufficient, means of finding meaning in personal life.” students for a democratic society, port huron statement 7 (2d ed. 1964), https://archive.org/details/porthuronstatement/phs00-211copy/page/n1/mode/2up. 74 miller, supra note 65, at 141. 75 id. at 152. 76 gabriel almond & sidney verba, the civic culture: political attitudes and democracy in five nations 2 (1965). 77 pateman, supra note 12, at 1. 78 economic opportunity act of 1964, pub. l. no. 88-452, § 202(a)(3) (1964). 79 see james a. morone, the democratic wish: popular participation and the limits of american government 227 (rev. ed., 1998) (arguing that “to many observers, the loose organization and participatory ethos of [cap] reflected the style of the civil rights movement from the start”). http://www.thenation.com/article/archive/participatory-democracy-port-huron-statement-occupy-wall-street/ 2025] when the executive 1298 ii. the creation of the community action program the war on poverty emerged at a time when u.s. urban policy was due for a serious reckoning. the depression had brought widespread home foreclosures in cities and the federal government had intervened through massive efforts: the home owners’ loan act of 1933 created the home owners’ loan corporation, which offered refinancing for home mortgages;80 the national housing act of 1934 created the federal housing administration to insure mortgage loans;81 the united states housing act of 1937 created the u.s. housing authority, which provided loans to state and local authorities to create public housing;82 the federal national mortgage association (“fannie mae”) was created to provide capital for housing finance through the creation of the secondary mortgage market in 1938;83 and, after world war ii, the veterans administration guaranteed mortgages for veterans through the servicemen’s readjustment act (the “gi bill”).84 but through both de jure accommodation of jim crow states and privately-enforced segregationist mechanisms like redlining and blockbusting, these programs expanded white homeownership in the suburbs while black and other racially-marginalized communities in cities were given little or no aid, stripping cities of their tax bases and deepening geographic inequalities.85 80 home owners’ loan act of 1933, 12 u.s.c. §§ 1461-1468 (1934). 81 national housing act of 1934, pub. l. 73-479, 48 stat. 1246 (1934). 82 united states housing act of 1937, pub. l. 75-412, 50 stat. 888 (1937). 83 national housing act amendments of 1938, ch. 13, § 1, 52 stat. 8. (1938). 84 servicemen’s readjustment act, pub. l. 78-346, 58 stat. 284 (1944). 85 the home owners’ loan corporation (“holc”) helped homeowners obtain mortgage refinancing while simultaneously creating a uniform system for appraising real estate in order to underwrite its loans. kenneth t. jackson, crabgrass frontier: the suburbanization of the united states 196 (1985). to assess property values, holc developed a ranked list of racial and ethnic groups to gauge their value, creating a scale that ranked ethnicities from the top category—english, germans, scotch, irish, and scandinavians—to increasingly racialized categories at the end of the list: “(7) russians, jews (lower class); (8) south italians; (9) negroes; (10) mexicans.” calvin bradford, financing home ownership: the federal role in neighborhood decline, 14 urb. aff. q. 313, 323 (1979); charles l. nier, iii, perpetuation of segregation: toward a new historical and legal interpretation of redlining under the fair housing act, 32 j. marshall l. rev. 617, 622-23 (1999). the federal housing administration (“fha”) stimulated new mortgage issuance by insuring new private mortgages that met standardized terms, dramatically hastening the growth of inner-ring suburbs through an “antiurban bias” that favored single-family homes and new construction over the repair of existing housing stock. jackson, supra, at 207-08; leonard s. rubinowitz & elizabeth trosman, affirmative action and the american dream: implementing housing policies in federal homeownership programs, 74 nw. u. l. rev. 491, 497-510 (1979). the fha continued the holc’s ethnicity-based property assessments but aimed for slightly more subtlety: the fha underwriting manual that was in use from 1934 to 1947 counseled against making loans in “crowded neighborhoods” full of “older properties,” that might be home to “inharmonious racial or nationality groups.” jackson, supra, at 207-08; robert w. collin & robin a. morris, racial inequality in american cities: an interdisciplinary critique, 11 nat’l black l.j. 177, 182-83 (1989). the maps developed to demarcate neighborhoods that were less desirable under both holc and the fha used red ink to clearly indicate less desirable areas, and this process of “redlining” led private banks to refuse to lend in those communities on favorable terms. jackson, supra, at 202-03. the veterans administration had a direct loan program and a mortgage insurance program, both of which engaged in similar redlining practices. rubinowitz & trosman, supra, at 515 n.88. “blockbusting” is a related practice, in which real estate speculators identified white urban communities that were adjacent to communities of color, made representations that people of color were moving to their neighborhoods and causing home values to sink; they would purchase homes from white residents at a discount, and then flip those homes to black people at a substantial markup. dmitri melhorn, a requiem for blockbusting: law, economics, and race based real estate speculation, 67 fordham l. rev. 1145, 1151-53 (1998). the process was widespread, inflamed racial tensions, and increased residential segregation. id. at 1153-56. the public housing authorities created by the united states housing act of 1937 also furthered segregation by siting most low-income housing in communities of 1299 colum. j. race & l. [vol. 15:1285 following years of urban disinvestment and suburban growth, advocates for “slum clearance,” buoyed by the lobbying power of industry associations of urban planners and real estate lenders,86 successfully pushed for the national housing act of 1949, which provided grants and other support for “urban renewal”—“the clearance of slums and blighted areas and the realization as soon as feasible of the goal of a decent home and a suitable living environment for every american family.”87 urban renewal let states designate an area as blighted, which allowed municipal agencies to join with private investors to create a plan of investment and use municipal powers like public finance, land use regulation, and eminent domain to raze and rebuild the area.88 the urban renewal process led to widespread displacement of low-income, largely black urban residents by destroying affordable rental housing in low-income neighborhoods, with the goal of replacing it with single-family housing and facilities for wealthier, typically white, populations.89 these impacts were obvious to commentators across the political spectrum,90 as they were to residents of low-income urban neighborhoods themselves, who mockingly referred to urban renewal as “negro removal.”91 while the stated goal of urban renewal was to displace high-density, low-income, “blighted” neighborhoods with lower-density, higher-income neighborhoods, urban renewal succeeded at tearing down residential properties in communities of color and incentivizing white people to move to the suburbs, but was far less successful at replacing housing taken by condemnation with new private development.92 in many cities, housing was eliminated and, following the passage of the federal-aid highway act of 1956, new urban expressways were constructed to encourage white commuters to come downtown from the suburbs, often furthering segregation by using infrastructure to physically separate neighborhoods.93 after decades of deeply segregationist federal policies ransacked urban communities of color, cities were left with poor housing conditions and inadequate social services, but with very few wealthy residents to pay taxes, forcing cities to take on more and more debt “in a frenzied quest to head off the day of judgment.”94 this serious economic crisis would not be addressed directly, but instead would bleed into popular narratives about a different, far more dubious kind of urban crisis: the “crisis” of culture, family, and morality of low-income people of color, and of black people in cities in particular.95 the most color. jon c. dubin, from junkyards to gentrification: explicating a right to protective zoning in low-income communities of color, 77 minn. l. rev. 739, 752 (1993); comment, the limits of litigation: public housing site selection and the failure of injunctive relief, 122 u. pa. l. rev. 1330, 1337-38 (1974). 86 wendell e. pritchett, the “public menace” of blight: urban renewal and the private uses of eminent domain, 21 yale l. & pol’y rev. 1, 20-21 (2003). 87 housing act of 1949, § 2, pub. l. 81-171, 63 stat. 413 (1949). 88 william h. simon, the community economic development movement: law, business and the new social policy 8 (2001). 89 id. at 8-9; pritchett, supra note 85, at 32-37. 90 see herbert j. gans, the failure of urban renewal, 39(4) commentary 29, 29 (apr. 1965) (citing criticisms from the conservative scholar martin anderson, progressive social critic jane jacobs, and the novelist norman mailer, along with data from the urban renewal administration). 91 douglas s. massey & nancy a. denton, american apartheid: segregation and the making of the underclass 56 (1993). 92 pritchett, supra note 86, at 32-37. 93 richard rothstein, the color of law: a forgotten history of how our government segregated america 127-131 (2017). see federal-aid highway act of 1956, pub. l. 84-627 (1956). 94 frederick k. huntington-vigman, crisis of the cities 42 (1955). 95 timothy weaver, urban crisis: the genealogy of a concept, 54(9) urban studies 2039, 2045. this urban crisis narrative would later find perhaps its fullest articulation in the so-called moynihan report, daniel moynihan’s 1965 study that argues that centuries of racism, slavery, and jim crow had led to a “tangle of pathology” at the level 2025] when the executive 1300 influential of these crisis narratives in the early 1960s came from michael harrington, a political writer who, in a strange coincidence, was also a member of the league of industrial democracy, sds’s parent group, and a vocal opponent of the port huron statement who tried to stop it from being released.96 harrington published the other america: poverty in the united states in early 1962, and it quickly became “obligatory reading in washington’s democratic policy circles.”97 advisors to kennedy and johnson were deeply influenced by harrington’s ideas, and they would help shape the conceptual framework of the war on poverty. harrington argues that poverty is not caused by a lack of income or personal pathology, but rather by an all-encompassing “culture of poverty” that traps people in poverty against their will. he asserts that poor education means a low-paying job, which means low-quality housing, which can affect health, which means problems with family stability, which can affect employment and housing, each factor building on the others. as a result, problems can only be remedied if attacked on different fronts simultaneously; working on health or housing in isolation does little good.98 harrington’s conclusion was that the existing government bureaucracies are too siloed and lack the flexibility and dynamism necessary to break this cycle.99 while that part of harrington’s thesis might have some merit, his broader argument relies on a deeply problematic dichotomy, asserting that earlier generations of low-income irish, italian, and jewish communities were able to break free from poverty because they had strong senses of community, but black and latino neighborhoods lacked community. the “culture of poverty” had so taken hold of communities of color that they had become full of “people who are lost to themselves and to society.”100 unfortunately, harrington’s argument about the need for holistic approaches to fighting poverty had only a brief influence on policy, but his theory that communities of color were ensnared in an intractable “culture of poverty” became a kind of quasi-sociological justification for longstanding of the family and community—unemployed fathers, high crime, a lack of male role models—that slowed progress toward more fulsome civil rights. daniel p. moynihan, the negro family: the case for national action 1 4, 29-38 (1965). moynihan’s study is among the most controversial texts of the twentieth century, one that has continued to spark debate in the twenty-first century. see, e.g., james t. patterson, freedom is not enough: the moynihan report and america’s struggle over black family life from lbj to obama (2010); symposium issue: the moynihan report: 50 years later, 8 geo. j. of l. & mod. crit. race perspectives (2016). the phrase “blaming the victim” was coined by william ryan in response to the report. see william ryan, blaming the victim (1971). 96 sale, supra note 65, at 39; david zarefsky, president johnson’s war on poverty: rhetoric and history 24 (1986). harrington was present at port huron as a representative of the league of industrial democracy (“lid”) and was no fan of the youthful interest in participatory democracy. he told the convention their statement would make lid “go through the roof,” pushing for the group to take a more moderate and explicitly anti-communist stance, and, upon his return to new york, immediately “gave lid a blow by blow report of what the convention had wrought.” sale, supra note 65, at 39. lid called haber, hayden, and other leaders of sds into a hearing before lid, and sds members were left feeling that “america’s best liberals were on the lip of red-baiting us out of existence….[it] was kafkaesque.” id. at 39-41 (quoting sds’s bob ross). harrington later became a founder of the democratic socialist organizing committee, which became the democratic socialists of america. harold meyerson, why michael harrington matters, jacobin (jul. 31, 2019), https://jacobin.com/2019/07/michael-harrington-dsa dsoc-democratic-socialism. 97 benjamin looker, a nation of neighborhoods: imagining cities, communities, and democracy in postwar america 141 (2015). see james l. sundquist, origins of the war on poverty, in on fighting poverty: perspectives from experience 6, 7 (james l. sundquist ed., 1969) (arguing that harrington’s book caused kennedy to want to pair his tax cut with a new poverty program). 98 michael harrington, the other america: poverty in the united states 162 (50th anniv. ed., 1997). 99 tara j. melish, maximum feasible participation of the poor: new governance, new accountability, and a 21st century war on the sources of poverty, 13 yale hum. rts. & dev. l.j. 1, 20 (2010). 100 harrington, supra note 98, at 10-11. 1301 colum. j. race & l. [vol. 15:1285 racist stereotypes, and this may have been the more lasting legacy of his book.101 a less offensive but somewhat aligned analysis was emerging at the same time out of studies of “juvenile delinquency.” in the prior decade, the eisenhower administration saw juvenile delinquency as a health problem; young troublemakers were sick and in need of social psychological treatment.102 but in 1960, richard cloward and lloyd ohlin from the new york school of social work at columbia university criticized this theory in their book delinquency and opportunity, arguing that delinquency is not an individual pathology, but a social problem that derives from the hopelessness of “slum communities.”103 soon after the 1960 election, president-elect kennedy asked his friend david hackett to develop a program to combat delinquency. hackett, with ohlin and, later, richard boone, began to explore tools to combat delinquency by offering education and employment opportunities—the “opportunity theory”—to young people in low-income neighborhoods through the president’s committee on juvenile delinquency and youth crime.104 the idea of a nimbler, more responsive social services sector appealed to the ford foundation, which sought to explore how community-centered solutions to urban issues that embraced the “culture of poverty” hypothesis from harrington and “opportunity theory” from cloward and ohlin might work.105 the ford foundation in the early 1960s was the largest private foundation in the world, and had become closely intertwined with democratic party leadership, growing into a “domestic policy incubator” for the kennedy administration, initiating and piloting social programs before they would be implemented more widely.106 ford foundation leadership, politically disinclined to fund anything that might question existing social and economic hierarchies,107 framed the problems of cities as not rooted in long histories of racism, economic exploitation, and segregationist urban policy, but geography—the problem was simply that certain areas have had the resources drained from them.108 to combat the “culture of poverty” that arose in such geographies, ford created gray areas, a new program that would rely on a new local institution, a “community action agency,” that would facilitate the coordination of programs and the assimilation of local residents from within their own neighborhoods.109 ford would fund its pilot in four cities—oakland, philadelphia, boston, and new haven—and it would, along with a similar anti-delinquency program in new york connected to cloward and ohlin called mobilization for youth (mfy), generate attention from 101 this dichotomy “became a pervasive motif for liberal urban commentary,” in which “ethnic” neighborhoods became “situated as the very prototype of neighborhood health,” where hard work and community lifted immigrants into the middle class, while racialized communities were unable to take this step. looker, supra note 97, at 142-143. many commentators tried to identify some cultural or social-psychological reason for this, sometimes seeming to argue that black people in u.s. cities mysteriously lack a culture at all: “without a special language and culture, and without the historical experiences that create an élan and a morale, what is there to lead them to build a life, to patronize their own?” nathan glazer & daniel p. moynihan, beyond the melting pot: the negroes, puerto ricans, jews, italians, and irish of new york city 33 (1962). the bizarre argument that black people might simply lack values and culture “went virtually uncontested in the early avalanche of praise from white reviewers” and would later become part of the narratives around the “urban crisis” of the 1960s. looker, supra note 97, at 147. 102 sundquist, supra note 97, at 9-11. 103 id. at 11. 104 id. 105 robert fisher, neighborhood organizing in america 119 (2d ed. 1994). 106 karen ferguson, top down: the ford foundation, black power, and the reinvention of radical liberalism 5-6 (2013). 107 id. at 6-7. 108 id. at 89-90. 109 id. at 59. 2025] when the executive 1302 urban policy experts in and around the kennedy and johnson administrations.110 both administrations “cultivated an antibureaucratic and community-oriented ethic that valued experimentation, flexibility, and decenteredness. it sought the guidance of elite experts, to be sure, but it also sought out the knowledge and desires of ‘the other america.’”111 but the turn to marginalized communities in their search for “innovation, new ideas, new imaginations”112 was intended to be a modest modification, a technocratic tweak, a slight check on expert-designed initiatives. in the early 1960s, mfy and gray areas seemed to strike the right balance. mfy and gray areas were not bold experiments in participatory democracy.113 community action agencies were, consistent with “opportunity theory” and the “culture of poverty” thesis, aiming to coordinate modest sources of funding for more efficient use outside of entrenched bureaucracies.114 they were formed as private non-profit corporations that would develop plans with input from city government and neighborhood leaders,115 but the main program goal was to replace messy disagreements, factionalism, and unending bureaucracy with expert-driven processes led by sophisticated leaders from academia, government, and ford foundation staff; opportunities for community input were a part of the program design, but were never a significant focus.116 although kennedy picked johnson as his running mate, he did not totally trust johnson, his southern rival for the 1960 democratic party nomination, and johnson was never a part of kennedy’s inner circle of advisors.117 just days after president kennedy was assassinated in november 1963, walter heller, kennedy’s chief economist, began to talk to president johnson about ideas for an anti-poverty effort that had been discussed in kennedy’s council of economic advisors, ideas along the lines of gray areas and mfy.118 johnson was interested, perhaps to tie himself to kennedy’s legacy, possibly out of a genuine desire to reduce poverty,119 probably because johnson felt he needed to do something in response to both the growing civil rights movement and the growing backlash to it,120 but above all out of a political interest in courting urban black voters, as the democrats were hemorrhaging white voters in the south due to the 110 id.; robert halpern, rebuilding the inner city: a history of neighborhood initiatives to address poverty in the united states 89 (1995). 111 mark krasovic, the newark frontier: community action in the great society 7 (2016). 112 id. 113 ferguson, supra note 106, at 60. 114 halpern, supra note 110, at 92. 115 id. at 92-93. 116 at the gray areas cite in new haven, for example, the community action agency hired mitchell sviridoff— a former president of the board of education with close ties to the new haven mayor and to ford foundation leadership—to be the director, where he developed programs around education, job training, and employment opportunities, excluding “local schools, social service and health departments…and poor people themselves” from input into program design. id. at 95. sviridoff would go on to help draft the economic opportunity act. george adler, community action and maximum feasible participation: an opportunity lost but not forgotten for expanding democracy at home, 8 notre dame j.l. ethics & pub. pol’y 547, 568 (1994). 117 jeff shesol, mutual contempt: lyndon johnson, robert kennedy, and the feud that defined a decade 64-78 (1997). 118 ferguson, supra note 106, at 62-63; michael l. gillette, launching the war on poverty: an oral history 1-10 (2d ed., 2010); sundquist, supra note 97, at 21. 119 zarefsky, supra note 96, at 24-25. 120 historian michael katz argues that the war on poverty was principally a response to three major civil rights events of 1963: the birmingham campaign, the march on washington, and the bombing of the sixteenth street baptist church in birmingham that killed four black girls. michael b. katz, the undeserving poor: america’s enduring confrontation with poverty 106-10 (2d ed. 2013). 1303 colum. j. race & l. [vol. 15:1285 national party’s support, tepid as it was, for integration.121 johnson wanted to act quickly, with the country saddened by kennedy’s death and the next presidential election just a year away.122 less than two months later, president johnson declared an “unconditional war on poverty in america” in his january 1964 state of the union address.123 he quickly appointed sargent shriver, kennedy’s brother-in-law and the first leader of the peace corps, to lead a task force to develop legislation toward that end.124 shriver enlisted the support of adam yarmolinsky from the department of defense, daniel moynihan from the department of labor, and james sundquist from the department of agriculture to be his initial team to prepare the bill, but that group would expand to include people from across the administration, along with outside urbanists, some affiliated with the ford foundation.125 the bill this team drafted, which became the economic opportunity act of 1964 (the “eoa”), marked a sharp break from past anti-poverty initiatives. it was focused not on welfare, but on enhancing opportunity and preparing people to take advantage of those opportunities, and it envisioned the war on poverty being fought mostly within low-income communities themselves.126 the bill was a hodgepodge of programs: job training and education, college work study programs, adult education programs, programs for children in poverty, a loan program for rural families and assistance for migrant agricultural workers, funding for very small businesses, and the volunteers in service to america (vista) program, a sort of domestic peace corps.127 hackett and boone from the president’s committee on juvenile delinquency and youth crime suggested that community organizations play a role in the effort,128 and heller and shriver agreed to support a “community action” pilot that, like gray areas and mfy, would help coordinate funds outside of city bureaucracies.129 but in the hurried drafting process, this “community action” component of the eoa changed from a small pilot program to become the key mechanism that held together all of the disparate eoa programs.130 johnson promoted the draft legislation as a more conservative program than cash assistance to help the poor: it would not be a handout but would instead create new 121 zarefsky, supra note 96, at 24-25. the democratic party had been somewhat non-committal on civil rights issues because they were controversial and divided the party’s support, but the growing civil rights movement, the controversy over brown v. board of education, and the montgomery bus boycott pushed the party to offer limited support for civil rights, causing them to lose white voters in the south and making democratic constituencies in urban areas in the north electorally essential, ultimately leading to a “rapid-fire…series of service programs for the ‘inner city.’” frances fox piven & richard a. cloward, regulating the poor: the functions of public welfare 251-56 (1971). many republicans saw the war on poverty as pure politics, just an attempt to “buy” the votes of the poor. mark mclay, the republican party and the war on poverty 14 (2021). 122 sundquist, supra note 97, at 25. 123 president lyndon baines johnson, annual message to the congress on the state of the union (jan. 8, 1964), https://www.lbjlibrary.org/object/text/annual-message-congress-state-union-01-08-1964. kennedy and members of his council of economic advisors (“cea”) had been inspired to take action against persistent poverty prior to the assassination, in part because of heller’s influence. zarefsky, supra note 96, at 24-25. 124 sundquist, supra note 97, at 25; martha j. bailey & nicolas j. duquette, how johnson fought the war on poverty: the economics and politics of funding at the office of economic opportunity, 74 j. econ. hist. 351, 355 357 (2014). 125 john c. donovan, the politics of poverty 29-30 (1967). 126 halpern, supra note 110, at 109. 127 economic opportunity act of 1964, pub. l. no. 88-452, 78 stat. 508 (1964). 128 sundquist, supra note 97, at 22-23. 129 adam yarmolinsky, the beginnings of oeo, in on fighting poverty: perspectives from experience 34, 35 (james l. sundquist ed., 1969). 130 robert l. rabin, federal regulation in historical perspective, 38 stan. l. rev. 1189, 1273 (1986). http://www.lbjlibrary.org/object/text/annual-message-congress-state-union-01-08-1964 2025] when the executive 1304 opportunities, turning “tax-eaters into taxpayers.”131 the eoa’s focus on poverty without any mention of race, civil rights, or cash assistance allowed the johnson administration the political flexibility to portray the bill as totally race-neutral or as deeply connected to their civil rights agenda, depending on their audience.132 president johnson and shriver urged congressional democrats to reject republican amendments to the bill and the eoa was approved with relatively little controversy and signed into law in august 1964.133 the eoa would come to be viewed as the central initiative of the war on poverty, “the most dramatic and highly publicized of the great society’s programs.”134 cap quickly became the most controversial part of the eoa, one that would receive $2.64 billion (over $25 billion in current dollars), half of the eoa’s funding between 1965 and 1968.135 the statutory language of cap authorizes the creation and funding of “community action programs” that (1) use public or private resources in a geographical area (2) to provide services to work toward the alleviation of poverty, that (3) are “developed, conducted, and administered with the maximum feasible participation of residents of the areas and members of the groups served,” and (4) are administered by one or more public or private nonprofit agencies.136 much depends on the third prong of that definition—the “maximum feasible participation” of residents in communities that would receive funding. but within the johnson administration, there was little consensus on how, exactly, “maximum feasible participation” would work.137 the group drafting the legislation, many of whom would take positions within the federal body administering the eoa, the office of economic opportunity (“oeo”), after the eoa’s passage, did not agree on the goals for cap: some thought it could be a planning mechanism, some saw it as a way of encouraging productive experimentation, some as a way to coordinate the work of local government and other interests in a new, less bureaucratic forum, and some as a form of social therapy that would energize apathetic local residents.138 the details of “community action simply [were] not much on the minds” of the drafters of this legislation, even though they made cap central to its operations.139 many of the drafters were influenced by “culture of poverty” arguments or otherwise had paternalistic assumptions that low-income communities of color would be apathetic and lack the kind of community pride that would lead to meaningful participation in cap. these assumptions led the johnson administration to ignore basic questions about how participation in cap would 131 president johnson, telephone conversation with house appropriations committee chair george mahon (jul. 29, 1964), https://lbjtapes.org/conversation/turning-tax-eaters-taxpayers. the term “tax-eaters” was coined by ludwig von mises in 1953, who used it to refer to the railways in the mixed economies of europe and the subsidized new york city subway, contrasting them with private u.s. railways that did not rely on public support but charged market prices to cover their expenses. ludwig von mises, economic freedom and interventionism 73-75 (1990). private u.s. railroads would be bailed out by the government in the rail passenger service act, which created amtrak. pub. l. 91–518, 84 stat. 1327 (1970). 132 to white audiences, eoa allowed “the monetary costs of fighting poverty to substitute for the high emotional costs involved in combating racial prejudice. the white liberal, the urban public official, and the southern politician all benefited from the exchange.” zarefsky, supra note 96, at 31. but in discussions with black leaders, shriver frequently linked the eoa with the civil rights act of 1964, and the two pieces of legislation were discussed as directly related in congressional debates. id. at 32. 133 donovan, supra note 125, at 33-36. 134 sar a. levitan, the great society’s poor law: a new approach to poverty 3 (1969). 135 bailey & duquette, supra note 124, at 358-360. 136 economic opportunity act of 1964, pub. l. no. 88-452, § 202 (1964). 137 zarefsky, supra note 96, at 33; melish, supra note 99, at 18. yarmolinsky, supra note 129, at 48. 138 katz, supra note 120, at 124-25. 139 daniel p. moynihan, maximum feasible misunderstanding 86 (1969). 1305 colum. j. race & l. [vol. 15:1285 actually function: among the planners discussing the implementation of the mandate, “the question of resident control of community-action agencies never arose.”140 a participatory democracy that was collective, resident-led, and that looked anything like sncc in its participatory processes was never considered as a possible outcome of requiring the “maximum feasible participation” of low income people in the decisions impacting their communities. they simply “believed that poor people lacked the will and organizational capacity to use this power to help themselves.”141 the johnson administration envisioned planning would largely happen in a top-down manner, imagining that the first step would be an expert-driven study of local poverty, identification of the areas of the greatest need, and then planning a specific program for those areas, connecting schools, social services, job opportunities, and local political leadership.142 daniel moynihan called their approach the “professionalization of reform,” which he saw as a move away from an older, naively populist model of social change in which “the impulse to reform…[comes] those groups most oppressed by existing conditions, or most likely to benefit from equitable change.”143 moynihan imagined a government that would not need to hear from oppressed or marginalized people at all; developing mechanisms for social change would come from “persons whose profession was to do just that.”144 the drafters’ goal for the “maximum feasible participation” mandate should be understood in the context of this model of “professional” reform in the kennedy and johnson administrations. the role of the community in cap was, at most, expected to be an important but minimal check on top-down planning: some “voices representing the poor” would be included in the process to keep the planners “’honest’ to its purposes.”145 cap was premised on an expert-led, centralized local authority that could fairly and objectively understand community issues, make decisions about what was best for the community, and then leverage its power and influence to coordinate the work of other public and private agencies in furtherance of its program with a minimum of bureaucratic delays.146 by “maximum feasible participation,” the executive branch had a fantasy of “the local principal, the minister, the settlement house director, the head of the tenant’s union, the articulate welfare mother, the bright ex-convict who is a neighborhood leader”147 sitting with planners appointed by city leaders to offer support for their benevolent ideas. it was a vision of an orderly, controlled form of participation “conceived in a mood of political optimism which bordered on naivete.”148 the top-down assumptions of the bill’s drafters were mirrored in the funding structure of cap, which is based on the near-total discretion of the oeo director to “allocate and expend, or transfer 140 sanford kravitz, the community action program—past present, and its future?, in on fighting poverty: perspectives from experience 52, 62 (james l. sundquist ed., 1969). 141 halpern, supra note 110, at 107. 142 kravitz, supra note 140, at 60. 143 moynihan, supra note 139, at 21. 144 id. at 23. president kennedy seemed inclined toward this model as well; he brought friends, consultants, experts, and colleagues, many from academia or other elite institutions to help develop this kind of “professional” reform. even before he was elected, his advisors were called a new “brain trust” in a reference to roosevelt’s new deal-era “brain trust.” see h.m., the democratic convention: kennedy’s brain trust and his plans for a “new” new deal, science, jul. 22, 1960, at 209 (describing advisors archibald cox, john kenneth galbraith, and arthur schlesinger, among other intellectuals and policy experts around kennedy). 145 kravitz, supra note 140, at 60. 146 id. 147 john g. wofford, the politics of local responsibility: administration of the community action program— 1964-1966, in on fighting poverty: perspectives from experience 70, 101 (james l. sundquist ed., 1969). 148 donovan, supra note 125, at 113. 2025] when the executive 1306 to other federal agencies for expenditure, funds made available under this act as he deems necessary.”149 even before the passage of the eoa, johnson had named shriver for the role,150 a position that seemed to have nearly complete discretion to make funding decisions based on “the incidence of poverty within the community…and the extent to which the applicant is in a position to utilize efficiently and expeditiously the assistance for which application is made.”151 iii. two ideas of participatory democracy collide applications for cap funding began to come in to the oeo soon after the eoa was passed, largely from “the usual array of public officials and civic leaders,”152 who began discussing their proposals with oeo staff in the second half of 1964.153 oeo staff were directed to ask “whether representatives of the poor had participated in developing the proposed program to the ‘maximum extent’ feasible,” and the response from most local government insiders was that they did all they could, no matter how little that was; after all, part of the mandate was to have these programs use their funding “efficiently and expeditiously,”154 and, of course, “you can’t have unqualified people running good programs.”155 at first, such answers were acceptable to the oeo.156 but after a few months, complaints about the process started to roll in.157 first they came from established national organizations like the naacp and the urban league, who wanted to be consulted.158 but soon demands to fulfill the “maximum feasible participation” mandate grew “angrier” and came from “entirely new groups.”159 this is where the influence of the participatory democracy that had been simmering in countless local groups influenced by sncc, the sit-in movement, highlander, and sds collided with the expectations of the johnson administration experts, as suddenly, all around the country, “[b]lack communities organized and demanded authority over the program’s priorities and decision-making.”160 the oeo felt that it could not simply ignore the “maximum feasible participation” mandate, and by spring 1965, it began to suggest that community action programs “include approximately one-third representation of low-income groups, chosen wherever feasible in accordance with ‘democratic techniques.’”161 for many communities distrustful of urban antipoverty programs after segregation, redlining, and urban renewal, communities that were promised they would have the “maximum feasible participation” in these new programs, this was not good enough. elected officials and oeo leaders were flooded with complaints about cap that spring and summer, about 149 economic opportunity act of 1964, pub. l. no. 88-452, § 602(h) (1964). 150 yarmolinsky, supra note 129, at 47. 151 economic opportunity act of 1964, pub. l. no. 88-452, § 205(c) (1964). 152 audrey g. mcfarlane, when inclusion leads to exclusion: the uncharted terrain of community participation in economic development, 66 brook. l. rev. 861, 872 (2001). 153 wofford, supra note 147, at 80. 154 economic opportunity act of 1964, pub. l. no. 88-452, § 205(c) (1964). 155 fisher, supra note 105, at 124 (quoting the mayor of nashville); wofford, supra note 147, at 80. 156 fisher, supra note 105, at 124. 157 morone, supra note 79, at 228. 158 id. 159 id. 160 mcfarlane, supra note 152, at 872. 161 paul e. peterson & j. david greenstone, rapid change and citizen participation: the mobilization of low income communities through community action, in a decade of federal antipoverty programs: achievements, failures, and lessons 241, 257 (robert h. haveman ed., 1977). 1307 colum. j. race & l. [vol. 15:1285 the “failure of the ‘mayor’s committee’ to consult the residents of the area.”162 the complaints were so vocal and widespread that the house labor and public welfare committee demanded that the oeo permit community participation in “all levels and stages of planning and administration” of cap.163 the oeo responded by making awards to some community groups wholly unaffiliated with local or state government leaders.164 the idea of having “low-income, socially deprived” people—people of color in most cases— leading their own government-funded programs was a new development and, to many, a shocking one.165 hundreds of independent community action programs were created and debates raged over how they would be run, who would serve on their non-profit boards of directors, and over the very meaning of participation itself.166 the community action programs formed in this period varied significantly, but a significant portion of these new groups were made up of a mobilized base of people of color that had familiarity with forms of organizing grounded in participatory democracy. as the welfare rights movement leader johnnie tillmon said: “community action programs and agencies began to form and we began to participate. i’m sure whoever wrote those words ‘maximum feasible participation of the poor,’ wished they had not done that!’”167 as tillmon implies, participants in community action programs who came out of social movements knew they were taking a more engaged, activist, collectivist approach to participation than was likely intended by the johnson administration.168 this was an opportunity to be heard, but it was more than that: it was an opportunity to receive resources that would be controlled by grassroots, participatory community groups to support their own neighborhoods. just as the oeo was succumbing to pressure to more meaningfully live up to its commitment to grassroots participation in cap in summer 1965, uprisings—and panicked responses to them— were capturing the national attention.169 urban mayors, mostly democrats, argued that the oeo was “undermining the integrity of local government.”170 the mayors of san francisco and los angeles spoke out against the oeo.171 in chicago, mayor richard daley assumed that he would have de facto control of the local community action agency; he appointed political allies to its 162 fisher, supra note 105, at 124-25; wofford, supra note 147, at 80. 163 halpern, supra note 110, at 110. 164 id. at 109. 165 peterson & greenstone, supra note 161, at 257-58. 166 mcfarlane, supra note 152, at 873. 167 premilla nadsen, welfare warriors: the welfare rights movement in the united states 34 (2005) (quoting an interview of johnnie tillmon by hobart a. burch, from the papers of the national welfare rights organization’s george wiley). 168 id. at 247 n.150. 169 urban uprisings—“ghetto riots” in the popular language of the 1960s—can be dated to 1963 and 1964. in the civil rights movement in birmingham, police attacked peaceful protesters, including children, with dogs, firehoses, and cattle prods, and local white residents shot at black people and bombed residences and other parts of the black community, killing four young girls in a sunday school class in church. some community members retaliated by attacking local white-owned businesses. nat’l advisory comm’n on civ. disorders, report of the national advisory commission on civil disorders 19 (1968). in july 1964, a 15-year-old black student was killed by a police lieutenant, and black communities in brooklyn and harlem battled police over six nights. id. at 19-20. other, smaller clashes arose in other cities, including rochester, jersey city, elizabeth, and chicago in 1964. id. at 20. but the watts rebellion in los angeles in august 1965, in which the national guard faced off against local residents, killing 34 people and arresting almost 4,000 more, was a shocking turn that captured the national attention and “evoked a new mood” across the country. id. 170 donovan, supra note 125, at 54-56. 171 fisher, supra note 105, at 127. 2025] when the executive 1308 leadership, using cap funds to extend his influence.172 the woodlawn organization, a south side neighborhood coalition, complained that its groups were being shut out of cap, and the oeo pressed mayor daley to reform.173 daley responded by attacking the oeo at the annual meeting of the u.s. conference of mayors in 1965, accusing the oeo of engaging in “class struggle.”174 both the league of cities and the u.s. conference of mayors began to advocate for limiting the participation of the poor in community action agencies.175 but groups coming out of, or influenced by, the participatory democratic frameworks of highlander, sds, and, above all, sncc were trying to seize the opportunity for the movement.176 sncc developed a plan with core for a statewide head start program serving black youth in mississippi in 1965; it was funded by the oeo, then was protested by pro-segregation mississippi senators john stennis and james eastland, who complained that the oeo was being politicized and mismanaged.177 seeking to mollify southern leaders, the oeo clawed back that funding and awarded it to another organization to run an almost identical program, leading to further accusations of politicization.178 community action programs in cities in the northeast and on the west coast became targets for various leftist and black power groups. in san francisco, political contests between these groups and city officials “expanded the social revolution in san francisco into a chain reaction of unrest.”179 in oakland, newark, new york, and syracuse, movement groups sought federal funds for political organizing and movement building—to pay movement organizers, not fund social service programs.180 mfy’s “neighborhood service center” model was originally funded by the ford foundation to provide community services and support in an accessible way, by putting one-stop service providers directly in commercial corridors in low-income neighborhoods.181 as this model spread to other cities and received cap funding, staff in neighborhood service centers saw that many problems in low-income communities were rooted in exploitation and discrimination by local landlords, local merchants, local police, local welfare offices, and local elected officials—the centers of power in their neighborhoods.182 caseworkers in neighborhood service centers, often college students or recent graduates who may have been involved in sds or other student movement groups, started to reject social work approaches that saw the problems of the poor as rooted in individual pathologies and began to look for opportunities for group advocacy.183 now with cap funding, these federally-funded centers “began to organize the poor to picket public welfare departments and boycott school systems…[l]ocal officials were flabbergasted.”184 at mfy, federal cap funding was used to support community-driven rent strikes, protests in the offices of elected officials, and legal actions against the welfare department and the police.185 two 172 adler, supra note 116, at 556. 173 id. at 557. 174 id. 175 fisher, supra note 105, at 126-27. 176 krasovic, supra note 111, at 7 (arguing that “opening up the state to a broad [community participation]…especially in the years of the modern [b]lack freedom struggle…was an invitation to conflict”). 177 adler, supra note 116, at 553-55. 178 id. 179 halpern, supra note 110, at 124. 180 id. at 124-25. 181 id. at 102-03. 182 id.; rabin, supra note 130, at 1276. 183 nadsen, supra note 167, at 36. 184 piven & cloward, supra note 120, at 266. 185 id. 1309 colum. j. race & l. [vol. 15:1285 years after inspiring a major national program, the new york daily news declared mfy to be “infested with commies and commie sympathizers.”186 a 1966 comment in yale law journal concluded that “maximum feasible participation” had come “to signify a militant slum organization, asserting its members’ interests against the mayor...by now, [eoa] section 202(a)(3) has been widely interpreted as a mandate for the oeo to finance these militant organizations.”187 even to the johnson administration’s political allies, it looked like an “ugly process,” in which encouraging participation had led cap to become “a forum for dissent” against the power structures in low-income communities of color.188 iv. the johnson administration tries to take back control through a series of tools that became the blueprint for the non-profit industrial complex the response from both the oeo and congress was to quickly try to take back control of the situation, using any tools they could. the oeo began to create exceptions to its own policies, both officially and unofficially. it backed away from its openness to community-driven initiatives.189 it made private arrangements with mayors to have any cap grants being considered for their cities be cleared through their offices.190 it started to borrow from funds allocated to cap to pay for more popular oeo programs like head start without congressional authorization.191 it declared it would not fund partisan political activity or organizations that were “subversive” or “not of good character.”192 shriver appeared before the house education and labor subcommittee ready to accept tighter federal controls on cap programs, like regular federal audits and evaluations, congressional oversight of their hiring and pay policies, restrictions on political activities, and limits on administrative expenses.193 the johnson administration also pushed new programs through congress that were similar to cap that ran parallel to it, but with significantly more control reserved for the federal government and private business interests. the 1966 special impact program was an amendment to the eoa, written by robert kennedy after he visited bedford-stuyvesant, brooklyn and saw the community economic development efforts being coordinated there by a coalition of groups called the central brooklyn coordinating council.194 the special impact program allocated funding specifically to support community development corporations, non-profit organizations that sought to aid urban redevelopment, including through small business support and other kinds of economic development.195 instead of mandating the maximum feasible participation of the low-income communities being served, the special impact program required the “maximum participation of businessmen by their inclusion on boards of directors, advisory councils, or other appropriate means.”196 186 fisher, supra note 105, at 126. 187 participation of the poor: section 202(a)(3) organizations under the economic opportunity act of 1964, 75 yale l.j. 599, 610 (1966). 188 donovan, supra note 125, at 70-71. 189 halpern, supra note 110, at 111. 190 fisher, supra note 105, at 127. 191 donovan, supra note 125, at 82. 192 fisher, supra note 105, at 127. 193 donovan, supra note 125, at 66. 194 franklin a. thomas, an unplanned life: a memoir 33-41 (2022). 195 neal r. peirce & carol f. steinbach, corrective capitalism: the rise of america’s community development corporations 20 (1987). 196 financing and operating community development corporation business activity, 83 harv. l. rev. 1592, 2025] when the executive 1310 the model cities program was created by the demonstration cities and metropolitan development act of 1966, and it became the first program of a new federal agency, the department of housing and urban development (“hud”).197 it aimed to fund community development using a totally opposite set of beliefs from those at the heart of cap: model cities provided funding to strengthen local government agencies serving low-income neighborhoods in the belief that their main problem was not any bureaucratic dysfunction, but simply a lack of adequate funding.198 the “maximum feasible participation” requirement in cap was scaled back to “widespread citizen participation”199 in model cities, and this was interpreted to be a substantial change; hud only reserved a limited, advisory role for local residents in model cities programs and, in most cities, proposals were created mayoral staff.200 in the 1966 mid-term election, 45 congressmembers who supported the oeo were defeated, and 45 republicans who opposed increases in antipoverty spending were elected; this new congress would take further action to rein in cap as well.201 democratic congressmember edith green of oregon offered an amendment to a 1967 appropriations bill that required all community action programs: (1) be officially designated by state or local government and (2) have boards of directors comprised of no more than 51 people, made up of 1/3 public officials, 1/3 representatives of business, labor, civic, and charitable groups, and 1/3 democratically selected representatives of the target areas.202 in effect, the “green amendment” changed the mandate from “maximum feasible participation” to one in which representatives of low-income communities would be limited to 1/3 of the votes within a body that made decisions by majority rule.203 the green amendment was followed by much closer regulation of the whole cap program. in 1966, all cap funds except head start were discretionary, and community action programs could use them in any approved program.204 by 1968, 60% of all cap funds were directed to specific “national emphasis” programs—principally upward bound,205 manpower development and training,206 and legal services207—with most of the rest of cap funds going to administrative salaries and 1595-1600 (1970) (citing 42 u.s.c. § 2765(a)(2), (3)). 197 demonstration cities and metropolitan development act of 1966, pub. l. 89-754 (1966). hud was created by two 1965 laws, the housing and urban development act and the department of housing and urban development act. hud had consolidated under its authority the federal housing administration, the urban renewal administration, and the community facilities administration, along with an increase in funding for its programs. housing and urban development act of 1965, pub. l. 89-117, 79 stat. 451 (1965); department of housing and urban development act, pub. l. 89-174, 79 stat. 667 (1965). 198 halpern, supra note 110, at 118. 199 demonstration cities and metropolitan development act of 1966, pub. l. 89-754, tit. i, § 101, 80 stat. 1255 (1966). 200 halpern, supra note 110, at 122; mcfarlane, supra note 152, at 875-76. 201 zarefsky, supra note 96, at 79. 202 fisher, supra note 105, at 127. 203 id. at 127-28. 204 id. at 128. 205 upward bound is a college and career readiness program that was originally part of the higher education act of 1965, pub.l. 89-329, title iv, § 302c, codified as amended at 20 u.s.c. § 1070a-13 (2008). 206 the manpower development and training act of 1962 was a job training initiative for unemployed workers passed during the kennedy administration that has subsequently been repealed. 42 u.s.c. §§ 2571-2574, repealed, pub. l. 93-203, title vii § 714, formerly title vi, § 614, dec. 28, 1973, 87 stat. 883; renumbered title vii, § 714, pub. l. 93-567, title i, § 101, dec. 31, 1974, 88 stat. 1845. 207 the idea of providing federal funding for civil legal services was popular with the ford foundation and some of the reformers that were in and around the kennedy and johnston administrations; the program was not included in the original text of the eoa, but edgar and jean cahn’s 1964 the war on poverty: a civilian perspective described the idea of neighborhood law offices for poor people and convinced shriver to include legal services as an activity 1311 colum. j. race & l. [vol. 15:1285 overhead, not community-designed or community-directed programs.208 community action programs originally funded in late 1964 and 1965 to promote community participation and decrease bureaucracy were quickly burdened by a whole set of new requirements. neighborhood service centers created to make accessing information about available social services programs as easy as a trip to the local commercial corridor found themselves “increasingly…worrying about caseloads, restricting eligibility, specializing in particular kinds of counseling, and so forth.”209 with the increased emphasis on the special impact program and model cities, the oeo split off possible opportunities for community organizing within cap from service provision and the community development of model cities and the special impact program, programs that were “no longer seen as vehicles for community control but instead…for ‘community-based’ activities like housing or ‘development.”210 community development groups may have “had their roots” in “radicals storming city hall…civil rights marches, anti-vietnam protests…and distrust of anyone in a business suit,” but by the 1970s and 1980s, at least for many community development groups, that radical past became “as much history for them as for the rest of american society.”211 what remained of cap became seen by many low-income community residents as “part of the problem, another service agency.”212 the grantmaking functions of the oeo survived for a while, but became closely regulated and watched rather than community designed and participatory, just another program to regulate the lives of low-income communities of color.213 as the johnson administration and, later, congress backed away from the “maximum feasible participation” commitment, they deployed quite varied tactics to regulate the programs they were funding. these tactics became the essential technologies of the non-profit industrial complex. they stripped groups of funding.214 they required boards and organizational leaders be comprised of people palatable to elected officials.215 they blocked groups they deemed to be too partisan, too that could be funded under the act. alan w. houseman, civil legal assistance for low-income persons: looking back and looking forward, 29 fordham urb. l.j. 1213, 1213 (2002); alan w. houseman, to establish justice for all: the past and future of civil legal aid in the united states, 23 geo. j. on poverty l. & pol’y 325, 329-30 (2016). see edgar s. cahn & jean c. cahn, the war on poverty: a civilian perspective, 73 yale l.j. 1317 (1964). civil legal services was added to amendments to the eoa in 1966 and 1967, and today exists as the legal services corporation act, 42 u.s.c. §§ 2996 §§ 2996l (1977). 208 fisher, supra note 105, at 128. 209 halpern, supra note 110, at 113. 210 james defilippis, unmaking goliath: community control in the face of global capital 47 (2004). 211 peirce & steinbach , supra note 195, at 8. peirce and steinbach represent the views of a certain segment of ced practitioners, but, as i have argued elsewhere, “to frame all of ced as a tool of the ford foundation and governmental agencies comes too close to stripping low-income communities of color of their agency.” michael haber, transactional clinical support for mutual aid groups: toward a theory of transactional movement lawyering, 68 wash. u. j. l. & pol’y 215, 241 (2022) a more complete view of contemporary ced practices could be defined as “the set of practices that emerged from the tension between the interests of the powerful governmental and private funders that sought to simultaneously fund and control ced programs, on the one hand, and the interests of community activists and community organizations seeking to leverage those funds…while bending as little as possible…on the other.” id. 212 james leiby, the history of social welfare and social work in the united states 338 (1978). 213 the oeo survived in this weakened state until 1981, when its grantmaking functions were transferred to the office of community services within hud. 42 u.s.c. § 9805-9807 (1981). 214 see supra note 178 and accompanying text. for a similar argument from the non-profit industrial complex literature, see smith, supra note 7, at 1-2 (describing the sudden revocation of a grant due to a funder’s opposition to a statement on their website). 215 see supra note 192 and accompanying text. for a similar argument from the non-profit industrial complex literature, see ana clarissa rojas durazo, “we were never meant to survive”: fighting violence against women 2025] when the executive 1312 political, or otherwise “subversive.”216 they closely tracked numerical outcomes and eligibility criteria and demanded significant organizational time be spent on such policing of eligibility.217 they narrowed what could qualify for funding.218 and they split politicized community organizing from “community based” service provision, and reserved almost all funding for the latter.219 over time, many who had hoped to plant real democratic seeds in their communities ended up taking official positions as “model-cities directors, or community-action executives—that is, they became government employees or contractors, subject to the constraints of federal funding and federal guidelines.”220 some participatory groups that once wanted to collectively determine where funds would go in their communities developed into hierarchical groups “vying for position and patronage within the urban political system.”221 some of those groups’ leaders would even go on to seek elected office, completing the process of converting participatory democratic group leaders into elected officials, “absorbing and directing many of the agitational elements in the [b]lack population.”222 when social movement groups talk about the non-profit industrial complex, these are the kinds of tactics that they mean. together, they manipulate social movement groups, funneling their energies into service provision and paperwork, encouraging their leaders into non-profit sector and government careers, pushing them to be more receptive to partnerships with businesses and to become more businesslike themselves.223 participatory democratic groups that engage with the non-profit industrial complex encounter a dizzying set of false hopes, setbacks, changing requirements, funds clawed back and visions compromised, little of it transparent, little even done legislatively. in cap, an innovative, participatory antipoverty program was created by the executive branch almost by accident, as it rushed to build something without an appreciation for and the fourth world war, in the revolution will not be funded: beyond the non-profit industrial complex 113, 117-19 (incite! women of color against violence ed., 2d ed. 2017) (describing how funding for community groups led to women’s anti-violence groups becoming more hierarchical, hierarchies that usually recreate “social axes of inequality such as class, race, nationality, sexuality, and ability.”) 216 see supra note 192 and accompanying text. for a similar argument from the non-profit industrial complex literature, see alisa bierria, pursuing a radical antiviolence agenda inside/outside a non-profit structure, in the revolution will not be funded: beyond the non-profit industrial complex 151, 156 (incite! women of color against violence ed., 2d ed. 2017) (describing an effort to strip a group’s funding because an elected official took issue with the use of the phrase “rape culture” in their materials). 217 see supra note 209 and accompanying text. for a similar argument from the non-profit industrial complex literature, see jennifer r. wolch, the shadow state, government and voluntary sector in transition 15 (1990) (describing the increasing reliance on “stringent, rigid, and quantitatively oriented approaches” to funding, which undermines the autonomy of non-profit groups). 218 see supra notes 204-208 and accompanying text. for a similar argument from the non-profit industrial complex literature, see nicole burrowes et al., on our own terms: ten years of radical community building with sista ii sista, in the revolution will not be funded: beyond the non-profit industrial complex 227, 229 (incite! women of color against violence ed., 2d ed. 2017) (describing how ideas that were once seen as new and innovative became, in an increasingly conservative political climate, “threatening and ‘unfundable’”). 219 see supra note 210 and accompanying text. for a similar argument from the non-profit industrial complex literature, see paul kivel, social service or social change, in the revolution will not be funded: beyond the non-profit industrial complex 129, 136-37 (incite! women of color against violence ed., 2d ed. 2017) (arguing that government and foundations help maintain the social order by supporting service provision that is “severely underfunded and overregulated” but always just service provision that never quite turns to address “the structural issues as required to actually eliminate the injustice or inequality.”) 220 piven & cloward, supra note 120, at 274-75. 221 id. at 275. 222 id. at 275-76. 223 see supra note 4 and accompanying text. 1313 colum. j. race & l. [vol. 15:1285 the radical potential of participatory democracy. to diffuse that energy, the johnson administration quickly had to scale back and chip away and what it had just offered, using a series of techniques that became the blueprint for the non-profit industrial complex, techniques that remain widely used by government and private funders of community organizations to this day. conclusion scholarly analyses of the non-profit industrial complex largely focus on how these mechanisms have often constrained and tamed social movements by pushing them into acceptable, depoliticized forms of action. the history of how a number of the techniques of the non-profit industrial complex were developed by the executive branch when it sought to constrain participatory democratic grassroots groups involved in cap reveals both the social function of the non-profit industrial complex and the potential threat to entrenched power that grassroots participatory democracy continues to possess. but in this historical moment, as the u.s. moves increasingly toward oligarchy and autocracy,224 the stakes of the non-profit industrial complex are increasingly stark. the johnson administration developed these tools to try to control the radical, deweyan participatory democratic impulses of grassroots 1960s movements that had somewhat accidentally been allowed to take a meaningful role within cap and, through it, the war on poverty, and to restore control back to the executive branch. in so doing, it created a blueprint for how elite institutions could exert control over the grassroots, preserving and even expanding their own power in the process. in the ensuing decades, this relationship increasingly became the norm. tragically, however, this strategy ignored the deep interconnection between local, participatory democratic institutions and democratic states, one that has been discussed by social scientists and political theorists in all sorts of contexts.225 as democratic institutions from apolitical community groups to labor unions to movement groups have been turned into hierarchical, professionally-managed, expert-led non-profits and 224 see, e.g., president joe biden, remarks by president biden in a farewell address to the nation (jan. 15, 2025), https://www.whitehouse.gov/briefing-room/speeches-remarks/2025/01/15/remarks-by-president-biden-in-a farewell-address-to-the-nation/ (warning of a “an oligarchy…of extreme wealth, power, and influence that literally threatens our entire democracy”); steven levitsky & lucan a. way, the path to american authoritarianism, foreign aff. (feb. 11, 2025), https://www.foreignaffairs.com/united-states/path-american-authoritarianism-trump; lawrence norden & daniel i. weiner, the rise of america’s broligarchy and what to do about it, time (feb. 12, 2025), https://time.com/7221154/rise-of-americas-broligarchy/; david smith, “in a real sense, us democracy has died”: how trump is emulating hungary’s orbán, guardian (feb. 7, 2025), https://www.theguardian.com/us news/2025/feb/07/trump-viktor-orban-electoral-autocracy. 225 for example, robert putnam argues that the decline of fraternal membership organizations—as seemingly insignificant as the decline of recreational bowling leagues—has harmed u.s. democracy: “it is commonly assumed that cynicism toward government has caused our disengagement from politics, but the converse is just as likely: that we are disaffected because as we and our neighbors have dropped out, the real performance of government has suffered.” robert d. putnam, bowling alone: the collapse and revival of american community 347 (2000). emile durkheim asserts that individual participation in “secondary groups” is essential to national coherence, arguing that “a nation can be maintained only if, between the state and the individual, there is a intercalated a whole series of secondary groups near enough to the individuals to attract them strongly in their sphere of action and drag them, in this way, into the general torrent of social life.” emile durkheim, the division of labor in society 28 (1964). similarly, john stuart mill argues that local, accessible forms of participatory democracy are a necessary precondition for the liberal state, writing that “as we do not learn to read or write, to ride or swim, by merely being told how to do it, but by doing it, so it is only by practicing popular government on a limited scale, that the people will ever learn how to exercise it on a larger.” john stuart mill, tocqueville on democracy in america, vol. 1, in essays on politics and culture 173, 186 (gertrude himmelfarb ed., 1962). http://www.whitehouse.gov/briefing-room/speeches-remarks/2025/01/15/remarks-by-president-biden-in-ahttp://www.foreignaffairs.com/united-states/path-american-authoritarianism-trump%3b http://www.theguardian.com/us2025] when the executive 1314 been drained of the power that comes from democratic participation, today, some of the very institutional actors that helped lay the groundwork for the non-profit industrial complex—private foundations,229 elite universities,230 and policy experts231—are themselves under attack. unfortunately, like pastor niemöller, they may be realizing too late that their own past actions have helped to create a world in which there are very few popular, participatory organizations left to speak out for them.232 229 see, e.g., drew lindsey, trump’s dei order takes aim and the biggest foundations. here are the 346 that could face a probe, chron. of philanthropy (feb. 27, 2025), https://www.philanthropy.com/article/these-346 foundations-are-candidates-for-a-trump-dei-investigation (noting the impact on the ford foundation and other major foundations). 230 notably, the second trump administration has singled out columbia university, once the home of john dewey, richard cloward, and lloyd ohlin, where muste traveled to hear dewey speak and where the ideas for mfy were theorized, for attack. see, e.g., sharon otterman, trump escalates attack on columbia by threatening its accreditation, n.y. times (jun. 4, 2025), https://www.nytimes.com/2025/06/04/nyregion/columbia-trump accreditation-civil-rights.html. 231 see, e.g., jody freeman & sharon jacobs, structural deregulation, 135 harv. l. rev. 585, 615-20 (describing efforts by the first trump administration to weaken agency expertise is an example of what the authors call “structural deregulation”). 232 pastor martin niemöller was a prominent german pastor with long-held anti-semitic and anti-communist views who became a vocal supporter of the nazi party. after he gave a statement that was viewed as insufficiently supportive of the german government, he was deemed to have committed “underhand attacks against the state” and “abuse of the pulpit,” detained for seven months and, after being sentenced to, in effect, time served, he was taken from the court to the “protective custody” of the sachsenhausen and dachau concentration camps from 1938 to 1945. william l. shirer, the rise and fall of the third reich: a history of nazi germany 208-212, 239 (1960). his post-war confessional, reflecting his own later-acknowledged complicity, became widely known as first they came: “first they came for the socialists, and i did not speak out—because i was not a socialist. then they came for the trade unionists, and i did not speak out—because i was not a trade unionist. then they came for the jews, and i did not speak out—because i was not a jew. then they came for me—and there was no one left to speak for me.” martin niemöller: “first they came for…”, united states holocaust museum, holocaust encyclopedia, https://encyclopedia.ushmm.org/content/en/article/martin-niemoeller-first-they-came-for-the-socialists. http://www.philanthropy.com/article/these-346http://www.nytimes.com/2025/06/04/nyregion/columbia-trumpcolumbia journal of race and law vol. 14 august 2024 no. 1 article defanging diversity: sffa v. harvard and its implications for the diversity rationale in higher education admissions daniel kees† they don’t want to realize that there is not one step, morally or actually, between birmingham and los angeles. james baldwin, i am not your negro (2017) this article explores the jurisprudential underpinnings of the so-called “diversity rationale” that until recently had been considered a powerful vehicle for fostering racial diversity on elite college campuses. as the national debate around diversity, equity, and inclusion measures—both their legitimacy and practice—will only intensify in the current sociopolitical climate, this writing attempts to provide a chronology of how the nation’s high court has shaped the contours of that discourse, arguing that the court’s juridical trepidation in this area of the law led to an unworkable framework that was doomed from inception. this article further examines the rapidly changing norms of race and identity—including the inherent tensions and complexities that such concepts engender before concluding with a recommendation for how to achieve the supposed aims of the affirmative action regime in american society. † judicial law clerk, court of appeals for the third circuit. b.a., millsaps college; j.d., university of pennsylvania carey law school. the author notes that this article was accepted for publication prior to his current employment. i first express my sincere thanks to the editors of the columbia journal of race and law for their continued diligence throughout this editing process. the idea for this article stems from a paper written during an education law seminar taught by professor michael davis at penn law, when this case was before the trial court. with thanks to prof. davis, as well as professor kermit roosevelt for his steadfast encouragement and guidance throughout the drafting of this paper, i have been able to update this piece at every turn in the case’s path to the supreme court. i also wish to thank beatrix and deidre for substantive thoughts and edits as well as their great friendship. in addition, i owe a debt of gratitude to taylor, ralph, fatou, and charlie for the many thoughtful conversations, approached with the utmost honesty and care, that allowed me to think more critically about these topics and refine my own views during the oft-taxing writing process. sincerest thanks to benton and kandice for the much-needed levity and warmth of our friendship that helped me to push through hard days. and finally, to my family—mom, joshua, and mr. maples—thank you loving me, for humoring my various aspirations over the years, and for always providing a safe place to land as i continually flung myself off the proverbial cliff in an effort to learn to fly. 1024 colum. j. race & l. [vol. 14:1023 table of contents i. the diversity problem: introduction and brief recap of the legal proceedings ..................................................................................... 1025 a. defining diversity under scotus: from then to now ........ 1026 ii. the many forms of affirmative action: mechanisms for achieving non-racial diversity in college admissions .................................. 1029 a. table setting: the meaning and scope of affirmative action in higher education ..................................................................... 1029 1. “elite” athletics: the role of athletic recruitment in admissions............................................................................... 1030 2. early birds: the effects of early decision and merit aid on admissions............................................................................... 1035 iii. defining diversity: an analytical framework ............................... 1037 a. “come to brazil”: a brazilian case study and its lessons for the united states ........................................................................... 1038 b. history lesson: a brief survey of black racial and ethnic identification ............................................................................ 1040 c. state of play: modern fault lines in black self-identification 1044 d. quantification conundrum: diversity’s line-drawing problem 1050 iv. trauma porn and introspective elites: legal and social implications of the diversity rationale ............................................................... 1054 a. the politics of trauma: the “adversity” narrative ................ 1054 v. a mutilated meritocracy: failed solutions to the diversity rationale’s shortcomings ................................................................ 1059 a. path a: more diversity ............................................................ 1059 b. path b: greater socioeconomic weighting .............................. 1062 c. blood at the root: structural issues reducing diversity’s effectiveness ............................................................................ 1065 1. school segregation ........................................................... 1066 2. housing segregation ........................................................ 1068 3. test preparation .............................................................. 1071 vi. fixing diversity: making good on the promise of the diversity rationale ......................................................................................... 1074 a. at first glance: preliminary proposals .................................. 1074 b. the only way out: the role of desegregation in realizing the goals of diversity ..................................................................... 1078 vii. conclusion: a promise unfulfilled—final thoughts on the diversity rationale ......................................................................................... 1084 2024] defanging diversity 1025 i. the diversity problem: introduction and brief recap of the legal proceedings in september 2019, judge allison d. burroughs of the united states district court for the district of massachusetts issued a decision in a case that would come to change the face of affirmative action in higher education: students for fair admissions, inc. (sffa) v. president & fellows of harvard college (harvard corporation).1 sffa is “a nonprofit membership group” that believes “racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.”2 sffa contended in its suit that harvard unfairly discriminated against asian american applicants in its undergraduate admissions process, violating title vi of the civil rights act of 1964, 42 u.s.c. §§ 2000d et seq. (“title vi”). sffa considers itself to be advancing the principles of the civil rights movement—namely, that a student’s race should not factor into their admissions chances at a competitive university.3 the massachusetts court, in an expansive and footnote-laden opinion, considered the merits of sffa’s and harvard’s arguments and concluded that harvard—whose review process has been deemed a model for race-conscious admissions4—did not discriminate against asian americans or violate the u.s. constitution.5 sffa appealed the decision all the way to the u.s. supreme court which reached the opposite conclusion, spelling the end of the diversity rationale in higher education admissions and ushering in a post-affirmative action era.6 the end of affirmative action followed years of the supreme court narrowing the bounds of the so-called “diversity rationale,” which is the justification provided for giving additional weight to race in the college admissions process. the court’s failure to fully endorse the social justice orientation of the diversity rationale, or to simply require schools to more explicitly set forth what they value in admissions, resulted in an anemic jurisprudential framework utterly incapable of fulfilling its purpose. despite this failure, diversity has—and will continue to be—an important 1 students for fair admissions, inc. v. president & fellows of harv. coll., 397 f.supp.3d 126, 130 (d. mass. 2019). 2 students for fair admissions, inc., about, students for fair admissions (last visited mar. 26, 2024), https://studentsforfairadmissions.org/about/ [https://perma.cc/jdh79y28]. 3 students for fair admissions, inc., supra note 2. 4 regents of univ. of california v. bakke, 438 u.s. 265, 316 (1978) (“the experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the first amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. an illuminating example is found in the harvard college program”); grutter v. bollinger, 539 u.s. 306, 321 (2003) (“the court of appeals also held that the law school's use of race was narrowly tailored because race was merely a “potential ‘plus’ factor” and because the law school's program was “virtually identical” to the harvard admissions program described approvingly by justice powell and appended to his bakke opinion”). 5 students for fair admissions, inc. v. president & fellows of harv. coll., 397 f.supp.3d 126, 147 (d. mass. 2019). 6 students for fair admissions, inc. v. president & fellows of harv. coll., 600 u.s. 181, 231 (2023). the supreme court also considered alongside the harvard case one targeting the university of north carolina’s admissions system. 1026 colum. j. race & l. [vol. 14:1023 part of college admissions. the supreme court’s ruling fell far short of meaningfully curtailing schools’ ability to structure admissions in the ways they see fit; rather, schools will simply have to be more innovative about achieving the desired makeup of their classes. the concept enshrined in the diversity rationale, if not the doctrine itself, survives, at least for the moment. this article examines the history of the diversity rationale, the factors that eroded its efficacy and legitimacy, and a path forward in a postsffa world. it also examines the elite college admissions system, an understanding of which is necessary to comprehend why the diversity rationale failed to achieve its potential as a transformative concept in american higher education. the discussion that follows is meant to shed light on a judicial framework that was doomed from inception and to advocate for a more robust framework that can achieve the implicit goals of the diversity rationale. this article seeks to provide a more nuanced understanding of diversity—in a factual and legal sense—to aid policymakers and laypersons alike in laying the groundwork for a more equitable approach to college admissions and the legal structure under which those decisions are made. a. defining diversity under scotus: from then to now note that this article uses phrases such as “the diversity rationale” or “affirmative action” interchangeably. though similar, these concepts differ slightly. “affirmative action” refers to a set of policies that in recent decades have helped underrepresented groups to enter spaces to which they historically had been denied access. specifically, affirmative action allowed people to hold certain jobs or gain admission to certain educational institutions that had previously excluded them. affecting large swaths of this country—including black and brown people as well as women of all races—affirmative action initiatives helped to foster a workforce that is more representative of the country as a whole. fostering on-campus “diversity,” on the other hand, is the limited ground upon which the supreme court in bakke approved race-based tips in higher education admissions. schools for decades justified the admission of many black, indigenous, and people of color (“bipoc”) students on the grounds of building a “diverse” class. in most cases, however, they are two sides of the same coin. nailing down exactly what “diversity” means—or what it could mean—for higher education admissions is a challenging endeavor. although modern conceptions of “diversity” often bring racial diversity to mind, the supreme court has always recognized the multifaceted nature of the term. in bakke, where the court first affirmed the diversity rationale as a compelling state interest, justice powell suggested that a plurality of “ethnic, geographic, [and] culturally advantaged or disadvantaged” backgrounds may “enrich the training of [a school’s] student body and better equip its graduates to render with understanding their vital service to humanity.”7 justice powell wrote that “[t]he diversity that furthers a 7 bakke, 438 u.s. at 314 (pertaining to a medical school’s admissions program, but the court noted that there may be “greater force to these views at the undergraduate level 2024] defanging diversity 1027 compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single though important, element.”8 powell further noted that the university of california at davis medical school’s “special admissions program, focused solely on ethnic diversity, would hinder, rather than further, attainment of genuine diversity” (emphasis added).9 this “genuine diversity,” justice powell suggests, comprises more than mere ethnic or racial diversity. notably, the court did not justify diversity’s use in higher education admissions on the grounds of being a remedy for past societal harms; instead, it recognized such redress only in limited situations involving specifically identified instances of racial discrimination.10 the court noted that remedying the effects of “societal discrimination” was not compelling enough to support the use of the suspect classification of race in admissions.11 going further, the court deemed such discrimination “an amorphous concept of injury that may be ageless in its reach into the past.”12 the court again took up the question of diversity in the sffa case. at issue was whether harvard’s use of race in admissions could survive socalled “strict scrutiny,” the central test for determining the constitutionality of race-based considerations.13 under the supreme court’s strict scrutiny analysis, harvard may consider race only if no other workable race-neutral alternative can ensure a sufficiently diverse class.14 a strict scrutiny inquiry required that harvard’s use of race-based classifications be “narrowly tailored” to further a “compelling interest.”15 the massachusetts trial court took little issue with the compelling interest prong, simply reiterating harvard’s expressed interest in creating a community that can adequately prepare leaders for the “pluralistic society” and diverse workforce that they will soon join.16 that court noted that harvard’s goals were similar in their specificity to the goals of the university of texas at austin in fisher ii, goals that the supreme court than in a medical school where the training is centered primarily on professional competency.”). id. at 313. 8 id. at 315 (pointing to harvard college’s admission system, the very system that is now under attack, as an example of using race as one of many “plus” factors in admissions—an acceptable use of race-based tips in admissions to produce a diverse entering class.). id. at 316. 9 id. at 315. 10 bakke, 438 u.s. at 307 (finding that in the “line of school desegregation cases, commencing with brown,… the states were required by court order to redress the wrongs worked by specific instances of racial discrimination” (emphasis added), as contrasted with the bakke action that concerned the use of race in admissions to remedy the effects of societal discrimination). 11 id. 12 id. 13 students for fair admissions, inc. v. president & fellows of harv. coll., 600 u.s. 181, 190 (2023). 14 students for fair admissions, inc. v. president & fellows of harv. coll., 397 f.supp.3d 126, 177 (d. mass. 2019). 15 id. at 191. 16 id. at 192. 1028 colum. j. race & l. [vol. 14:1023 found to be “concrete and precise.”17 the court of appeals for the first circuit agreed, finding that harvard sufficiently demonstrated the “specific goals” it achieves from diversity.18 because of the relative silence of the lower courts on the issue of how bakke’s “compelling interest” prong applied to harvard’s admissions scheme, the supreme court’s de novo review had even more room to fashion a new definition of diversity. in june of 2023, the diversity rationale—and its accompanying universe of legal thought—went out with a whimper, not a bang. in a relatively brief opinion, a 6-2 majority of the supreme court found that harvard’s admissions process did not survive strict scrutiny and was violative of the equal protection clause of the fourteenth amendment.19 specifically, the court found that harvard’s admissions programs “lack[ed] sufficiently focused and measurable objectives warranting the use of race, unavoidably employ[ed] race in a negative manner, involve[d] racial stereotyping, and lack[ed] meaningful end points.”20 most notably, the court highlighted the imprecision of the racial categories employed by schools like harvard. its admissions practices did not distinguish between, for example, south asians and east asians. in addition, its consideration of other categories—such as middle eastern— might be deemed underinclusive to the extent they do not differentiate between smaller identifiable groups within the broad term “asian.” moreover, harvard used categories such as hispanic, which the court deemed “arbitrary or undefined.”21 finding such imprecision inexcusable, the court cited a “mismatch” between the means harvard employed to create a diverse class and the goals it sought in so doing, noting the burden this placed on courts in scrutinizing admissions programs like those at issue in this case.22 the supreme court in the sffa case effectively hobbled the diversity rationale and reduced the extent to which schools can consider race in admissions decisions. american colleges and universities, especially highly selective ones, had relied for decades on the protection courts afforded them to build their incoming classes as they saw fit (e.g., by giving tips to applicants from underrepresented racial groups). with that justification now gone, it remains to be seen what sorts of admissions scheme(s) will take its place. ambiguity and imprecision being the main issues that led to the demise of the diversity rationale, the following sections explore the backdrop against which the supreme court made its ruling, providing some definitional clarity for the term “diversity” and a survey of the admissions landscape facing colleges in the run-up to sffa. this 17 id. at 188. 18 students for fair admissions, inc. v. president & fellows of harv. coll., 980 f.3d 157, 187 (1st cir. 2020). 19 students for fair admissions, inc. v. president & fellows of harv. coll., 600 u.s. 181, 230 (2023). 20 id. 21 students for fair admissions, inc. v. president & fellows of harv. coll., 600 u.s. 181, 216 (2023). 22 id. at 217. 2024] defanging diversity 1029 background proves essential in contextualizing the highly inequitable admissions landscape and the resulting overreliance on diversity to create incoming classes that roughly mirrored the demographics of broader american society. ii.the many forms of affirmative action: mechanisms for achieving non-racial diversity in college admissions a. table setting: the meaning and scope of affirmative action in higher education before proceeding, situating the use of race-based tips in higher education admissions as well as the general debate around such practices will aid in understanding this multifaceted phenomenon. first, it is helpful to know that the type of race-based considerations at issue in the harvard case are ultimately confined to a few highly selective schools. generally, american colleges and universities do not employ race-based tips of the sort used by elite schools. some scholars estimate that only about one hundred schools practice race-conscious admissions in the united states, admitting 10,000 to 15,000 black and hispanic students who would not otherwise have received an offer of admission.23 that equates to about one percent of all students in four-year colleges and only about two percent of all black, hispanic, and native american students in four-year colleges.24 these statistics beg the question of why the asian american plaintiffs in the sffa lawsuit did not target recruited athletes, legacies, so-called dean’s or director’s interest list candidates, and children of faculty and staff (collectively, “aldcs”) who, numerically, cost them far more spots than the comparatively few students of color that schools like harvard admit.25 eliminating the handful of “diversity admits” at schools like harvard will do far less to increase the presence of high-achieving asian students than would removing the preference for recruited athletes and legacies. for example, a 2016 report showed that completely eliminating black and latino applicants from the harvard admissions pool increased the likelihood of asian and white students by only one percent.26 in addition, sffa expert peter arcidiacono published a paper noting that over 40 percent of white harvard admits are aldcs and arguing that over three quarters of white aldcs would have been rejected from harvard had 23 amy harmon, how it feels to have your life changed by affirmative action, n.y times (june 21, 2023), https://www.nytimes.com/2023/06/21/us/affirmative-actionstudent-experiences.html?searchresultposition=19 [https://perma.cc/3gmk-78zp]. 24 id. 25 students for fair admissions, inc. v. president & fellows of harv. coll., 397 f.supp.3d 126, 138 (d. mass. 2019). especially when one considers the unique and powerful ways in which the asianand aldc-coded variables interact in the economic models at issue in the harvard case, this omission is notable. 26 sherick hughes et al., causation fallacy 2.0: revisiting the myth and math of affirmative action, 30 politics of education association special issue theme: educational policy and the cultural politics of race 63, 81-82 (2016) (discussing admission rate changes for white and asian applicants if there were no black and latino applicants). see also veritas: so you’re applying to college in a global pandemic, veritas: asian americans & affirmative action (sept. 1, 2020), (revisiting themes of the previous podcast episodes and discussing the current national debate over affirmative action and the rise in anti-asian sentiments in the wake of the global pandemic). 1030 colum. j. race & l. [vol. 14:1023 they been treated as white non-aldcs.27 at some level, the more accurate conflict in affirmative action discourse is not between less qualified poc and asian students, but more precisely, between upwardly mobile asian kids and rich white kids—an ascendant class bumping up against a mediocre-but-well-resourced social and cultural elite. ultimately, affirmative action policies generate an outsized level of discourse relative to the share of the american populace actually affected by this narrow policy. the second point to keep in mind is that this debate on affirmative action, at its height, took place against the backdrop of increased violence against asian immigrants and asian americans in the wake of the global pandemic. this made the conversation an even more highly consequential one, as it took on social, political, economic, and cultural dimensions.28 passionate advocates on all sides of the issue brought their own lived experiences into the debate, which only heightened the tenor of these talks. add in a resurgence in racial consciousness spurred by the murder of george floyd in may of 2020 and the subsequent summer of #blacklivesmatter protests against police brutality and systemic racism that captured the world’s attention, and you have a fraught discourse that can inflame the passions of all involved.29 while the import of race-based admissions tips pales in comparison to the import of social movements for racial justice, these issues do conceptually dovetail, however marginally, at least insofar as they are both inextricably intertwined with this country’s legacy of chattel slavery, racial apartheid, and the lasting effects of these practices. the following sections describe two phenomena that massively shape the contours of college admissions in america today. no discussion of affirmative action is complete without giving some attention to these underlying realities that add complexity to an already highly charged discourse around diversity. in the zero-sum game that is college admissions, participants are jockeying for any and every advantage, which makes the following “back doors” to admissions extremely consequential. 1. “elite” athletics: the role of athletic recruitment in admissions no discussion of diversity and affirmative action is complete without examining the role of sports in admissions. sports are a major vehicle through which schools recruit students, and examining athletic 27 peter arcidiacono et. al., legacy and athlete preferences at harvard, 4-5 (nat’l bureau of econ. rsch., working paper no. 26316, 2019). 28 see, for example, li zhou, the stop asian hate movement is at a crossroads, vox, (mar. 15, 2022), https://www.vox.com/22820364/stop-asian-hate-movement-atlantashootings [https://perma.cc/lsr7-6c5t] (describing the rise in anti-asian harassment in 2020 and 2021 and the emergence of the #stopasianhate movement). 29 the movement has, for example, spurred discussions around who exactly is “black” and in what contexts. see, e.g., cydney adams, not all black people are african american. here's the difference., cbs news (june 18, 2020), https://www.cbsnews.com/news/not-all-black-people-are-african-american-what-is-thedifference/ [https://perma.cc/22nd-rqku] (noting that “black lives matter protests have opened up conversations about the history of privilege, racism, and the lived experiences and identities of [b]lack people in america”). 2024] defanging diversity 1031 recruitment provides vital insight into the pre-sffa admissions landscape especially as it relates to the lower courts’ findings. the trial court found that “white applicants are significantly more likely to have made strong high school contributions to athletics, and this disparity counteracts the effect that asian american applicants’ relative academic and extracurricular strength would otherwise have on their admission rate.”30 while not necessarily pretextual, harvard’s justification of athlete admits presents a more complicated picture than the lower court suggests. as college admissions becomes ever more competitive, a growing body of research posits that men, particularly white men, enjoy privileges in the admissions process relative to female and minority applicants.31 to understand this “quiet”32 or “regressive”33 form of affirmative action, one must first consider the demographics of the students who are given such preference in admissions. elite colleges admit large numbers of students to play sports like field hockey, rowing, sailing, polo, lacrosse, golf, squash, and fencing—sports that are more prevalent in prep schools than low-income public high schools.34 these higher admittance rates persist even though these “country club” sports are prohibitively expensive and not strong revenue generators for most schools.35 even popular sports like basketball and football do not attract high levels of top-tier athletic talent 30 students for fair admissions, inc. v. president & fellows of harv. coll., 397 f. supp. 3d 126, 141 (d. mass. 2019). 31 see generally jason england, the mess that is elite college admissions, explained by a former dean, vox (may 8, 2019), https://www.vox.com/thehighlight/2019/5/1/18311548/college-admissions-secrets-myths. [https://perma.cc/785tzxkx] (explaining that white men have an advantage in college admissions because of their participation in division iii athletics). 32 saahil desai, college sports are affirmative action for rich white students, the atlantic (oct. 23, 2018), https://www.theatlantic.com/education/archive/2018/10/collegesports-benefits-white-students/573688/ [https://perma.cc/97f2-3d9h] (“put another way, college sports at elite schools are a quiet sort of affirmative action for affluent white kids, and play a big role in keeping these institutions so stubbornly white and affluent.”). 33 england, supra note 31 (“division iii athletics allowed a regressive system of affirmative action for the demographic that needs it the least: white wealthy males”). 34 see generally desai, supra note 32; john r. thelin, admissions, athletics and the academic index, inside higher ed (april 2, 2019), https://www.insidehighered.com/views/2019/04/03/how-admissions-and-athleticsintertwine-ivy-league-colleges-opinion [https://perma.cc/rvk7-nexa]; paul tough, what college admissions offices really want, n.y times (sept. 10, 2019), https://www.nytimes.com/interactive/2019/09/10/magazine/college-admissions-paultough.html [https://perma.cc/3klp-d6b2]; liam o’connor, ivy league athletics are the new "moneyball", the daily princetonian (oct. 10, 2019), https://www.dailyprincetonian.com/article/2019/10/ivy-league-athletics-are-the-new-moneyball [https://perma.cc/vtp6-acrd]. 35 o’connor, supra note 34 (noting that “[a]bout a fifth of the seats in each incoming class go to recruited athletes. most of them don’t play high profile revenue-generating sports like football or basketball. they play the ‘country club sports’ of polo, sailing, squash, rowing, and fencing, among others.”); desai, supra note 32 (noting that “[o]ne in five families of an elite high-school athlete spend $1,000 a month on sports”). 1032 colum. j. race & l. [vol. 14:1023 at ivies.36 despite this, harvard has been known to spend more than $1 million per year in recruitment expenses.37 there is nothing inherently wrong with a school providing space for these sports or admitting the athletes who play them. what is curious, however, is why schools continue to prop up this “phalanx of lower-profile sports”38 despite their lack of money-making power. in fact, the ncaa recognized that only twenty-five athletics departments’ generated revenues exceeded their expenses in 2018-19.39 as one former college admissions dean put it, “[y]ou wouldn’t want to pay to see the teams play, but these students were admitted as if they were contributing to revenueproducing sports teams at larger universities.”40 it is unclear why schools so fiercely court these athletes in sports that do not make money or even attract fans.41 strong preference for athletes in admissions becomes even less defensible when one considers that athletic recruitment overwhelmingly benefits wealthy white males at the direct expense of applicants outside 36 realgm, ivy league players in the nba, realgm (last visited mar. 27, 2024), https://basketball.realgm.com/ncaa/conferences/ivy-league/14/nba-players [https://perma.cc/8vus-f32p] (listing the “former ivy league players who played in the nba” and noting that there were no such players in recent seasons). football does not fare much better. see reem abdalazem, which nfl players went to harvard and other ivy league schools?, diario as (dec. 11, 2021), https://en.as.com/en/2021/12/10/nfl/1639158921_102106.html#:~:text=as%20of%20january %2c%202021%2c%20there,yale%2c%20princeton%2c%20and%20cornell [https://perma.cc/x4ap-rhjm] (noting that, as of january 2021, “there [were] 13 active ivy league alumni in the nfl”); dustin ghannadi, checking in on every ivy league player currently in the nfl, the daily pennsylvanian (jan. 27, 2021), https://www.thedp.com/article/2021/01/ivy-league-nfl-check-in-penn-quakers-football [https://perma.cc/ehw2-58bw] (confirming only 13 “ancient eight” alumni are active on nfl rosters). 37 delano r. franklin and devin b. srivastava, the athlete advantage, the harvard crimson (may 28, 2019), https://www.thecrimson.com/article/2019/5/28/athleteadvantage-commencement-2019/ [https://perma.cc/nfe6-8yky] (“each year, the university pours more than $1 million into the practice [of recruiting], and hundreds of recruited athletes commit to the college.”). 38 desai, supra note 32. 39 national collegiate athletic association, 2004-19 ncaa revenues and expenses of division i intercollegiate athletics programs report, ncaa (last visited july 10, 2024), https://ncaaorg.s3.amazonaws.com/research/finances/2020res_d1-revexp_report.pdf [https://perma.cc/4avx-3chn]. 40 england, supra note 31. 41 many justifications are posited, but they fail to adequately explain this recruitment strategy. some observers claim that these sports programs boost student and alumni morale, which results in more tailgating or bragging rights within an athletic conference and in turn might translate to more donations to the school. england, supra note 31. another justification is that athletes are more likely than their peers to go into lucrative fields like law or business and to donate in the future. id. some research suggests that male former athletes’ donations increase when their college team wins its athletic conference. see jonathan meer and harvey s. rosen, the impact of athletic performance on alumni giving: an analysis of micro data 1-2 (nat’l bureau of econ. rsch., working paper no. 13937, 2008) (noting the approximate 7% rise in general and athletic program donations from male graduates at an anonymous “selective research university” whose former teams won their athletic championships). there are a variety of justifications for a strong athletic program at selective schools, but the lack of a single prevailing narrative seems odd given the outsized preference for these student athletes. 2024] defanging diversity 1033 that demographic.42 more “average” white female athletes generally are academically qualified enough to be admitted the traditional way, notes former wesleyan admissions dean jason england.43 spots for studentathletes of color were similarly finagled to make room for “underwhelming” white male candidates.44 in a strategy he calls “cynical,” england describes the deferral of black athletes to the general admissions committee, which often decided to admit them on diversity grounds, which “saved tips in the athletic committee for more underqualified white men, while robbing nonathlete black students in the regular committee.”45 in this way, white male athletes are deliberately propped up by admissions offices at the direct expense of women and people of color. sat scores can provide a “convenient justification” for admitting otherwise unimpressive students who can afford to pay full tuition—a major directive for any admissions office.46 another admissions professional laments that colleges routinely admit low-performing high schoolers from expensive prep schools who are at the bottom of their classes academically but who have access to sat prep courses, tutoring, and other resources that net them a higher-than-average sat score.47 with this strategy, admissions committees can then justify rejecting academically successful poor students with lower sats on the grounds of “college readiness” rather than ability to pay.48 but sat scores do not tell the whole story. even after admittance, it is not clear that many athletes at elite schools maintain the academic performance that warranted their admittance. trinity college, a highly selective liberal arts school, provides one example. unmotivated students with high standardized test scores often did not rise to meet the intellectual rigor of college courses.49 this lack of performance from supposedly highly qualified students, many of whom are recruited athletes, apparently had a discouraging effect on teacher morale.50 furthermore, it casts doubt on what exactly standardized tests are designed to measure and the true meaning of “college readiness.” 42 national collegiate athletic association, ncaa demographics database, ncaa (last visited mar. 27, 2024), http://www.ncaa.org/about/resources/research/ncaademographics-database [https://perma.cc/k7zb-sy5m]. for example, during the 20182019 school year, 64% of ncaa “student-athletes” were white. or consider the fact that in 2018, 74% of lacrosse players in the ivy league were white, and 3% were black. id. 43 england, supra note 31. 44 id. 45 id. 46 id. 47 tough, supra note 34. 48 id. 49 tough expounds: “the problem is, rich kids who aren’t motivated to work hard and get good grades in high school often aren’t college-ready, however inflated their sat scores may be. at trinity, this meant there was a growing number of affluent students on campus who couldn’t keep up in class and weren’t interested in trying.” id. 50 id. (citing angel pérez, a former enrollment manager at trinity college, who noted the “morale effect on our faculty” of students with pumped-up sat scores who populated classes in which they were disengaged and unmotivated to improve). 1034 colum. j. race & l. [vol. 14:1023 finally, after being admitted, many d-i ivy league athletes drop their sports.51 to reiterate: most of these students, whose admissions were justified largely along athletic lines, quit. at brown university, for example, a 2016 report found that about thirty percent of student-athletes did not play their sport through their senior year.52 similarly, ithaca college, a private liberal arts school in new york, had an athlete retention rate of just forty-six percent for the class of 2014.53 it is noteworthy that so many athletes—star performers funneled into elite schools on the theory that they bring some benefit to morale, donations, or campus culture—drop the sports they had played, often for the balance of their young lives, not long after arriving to campus. if sports are so integral to life at these elite colleges (and loom so large in their admissions decisions), why do so few admittees stick with them? why does athletics continue to have an outsize effect on admissions decisions if schools know they will lose these players in a year or so? the nature of athletics at elite schools is even more perplexing when one considers how heavily the courts weighed athletics as the sffa decision made its way through the judicial branch. for example, in justifying the lower admission rates of asian students, the trial court noted that white applicants were significantly more likely to have made “strong high school contributions to athletics” and that this counteracts the effect that asian applicants’ grades and extracurriculars would otherwise have on their admission rate.54 while not necessarily pretextual, harvard’s justification for its preferential treatment of athletes in admissions presents a more complex picture than the lower court suggests. as discussed above, these sports are prohibitively expensive even at the recruitment stage; they are not particularly popular; their athletes are not star students; they often quit their sport; and schools are losing money on them. some might argue that harvard, which has more sports than any school in the ncaa55, is uniquely able to accommodate this high 51 the next college student athlete or “ncsa,” a company that “helps thousands of student-athletes and their families take control of their [athletic] recruiting experience,” surveyed ncaa sports across divisions between 2012 and 2017, finding that “over 45% of underclassmen athletes are not listed on their college roster the following year.” the next college student athlete, 2019 nsca state of recruiting report, nsca (last visited mar. 27, 2024) https://www.ncsasports.org/state-of-recruiting [https://perma.cc/vx7z-4zjs]. see also the next college student athlete, the nsca experience, nsca (last visited mar. 27, 2024), https://www.ncsasports.org/who-is-ncsa/what-does-ncsa-do. [https://perma.cc/95yp-nmyq] (explaining what the ncsa is). 52 ben shumate, 30 percent of athletes quit respective teams, the brown daily herald (apr. 28, 2016), https://www.browndailyherald.com/2016/04/28/30-percent-ofathletes-quit-respective-teams/ [https://perma.cc/hdf2-x34y]. o’connor also references a study by william bowen and sarah levin finding that “a lot of athletes drop varsity sports after their underclassmen years.” o’connor, supra note 34. 53 kristen gowdy, hanging it up: former student-athletes share their past athletic experiences, the ithacan, (apr. 9, 2014), https://theithacan.org/sports/hanging-it-upformer-student-athletes-share-their-past-athletic-experiences/ [https://perma.cc/sej46w62]. 54 students for fair admissions, inc. v. president & fellows of harv. coll., 397 f.supp.3d 126, 164 (d. mass. 2019). 55 harvard college, why harvard: student activities, harvard college (last visited mar. 27, 2024) https://college.harvard.edu/admissions/why-harvard/student2024] defanging diversity 1035 number of athletes of varying academic prowess, athletic ability, and revenue-generating potential due to the school’s immense wealth. even if this theory holds, athletic recruitment remains a high stakes operation at harvard and elsewhere due to the harsh reality of class size limits.56 as one observer put it, “every admissions slot dedicated to a talented student athlete could mean one less space for a nonmerit admit, such as an alumni legacy or the child of a generous donor.”57 for these reasons, it is not hard to imagine why even wealthy parents go to such great lengths to produce distinguished athletes—or at least the appearance of such distinction.58 as the massachusetts trial court recognized, athletes simply have an edge in admissions, however murky the reasons for that edge may be. the supreme court has not yet taken up a challenge to athletic recruitment—indeed, they may never be so inclined—but it is worth noting the massive advantage athletes receive and the corresponding disadvantage nonathletes must overcome in admissions. 2. early birds: the effects of early decision and merit aid on admissions if athletics cannot provide a strong enough justification for the admission of otherwise underwhelming applicants, they have another tool in their admissions arsenal: early decision. rich (usually white) applicants applying early decision can secure a spot at a prized university before their diverse counterparts have even applied. early-admission decisions refer to an admissions process, usually occurring months before general admissions, in which students apply to one college and agree to attend that college if admitted. this practice favors wealthier applicants who can often commit to a school without knowing how much financial aid they will receive.59 students from low-income backgrounds—many of whom will be bipoc students—often need to compare tuition costs and aid packages from multiple schools before making a decision. in order to compare, they need multiple admissions offers, which necessitates applying during the activities#:~:text=harvard%20is%20home%20to%2042,other%20college%20in%20the%20co untry [https://perma.cc/wff5-gsk9]. 56 thelin, supra note 34. 57 id. 58 varsity blues is perhaps the most high-profile example of parents gaming the system, but it is by no means the only one. even schools with supposedly merit-based admissions like ucla or berkeley are not immune. see scott jaschik, university of california admissions disgrace, inside higher ed (sept. 27, 2020), https://www.insidehighered.com/admissions/article/2020/09/28/university-californiaadmissions-scandal-worsens [https://perma.cc/72sv-xnjl] (referencing an audit of berkeley’s admissions practices that revealed emails suggesting how or why the university admitted certain students, including: “‘applicant babysat for a colleague of the former director of undergraduate admissions,’ … ‘child of a high-level university staff member,’ [and] ‘applicant’s family promised a large donation’”). perhaps most insidiously, this preferential treatment can directly harm those it was designed to protect. id. (describing the use by admissions staff of “prospect lists”—lists of students from underprivileged backgrounds who might be strong candidates for admission—to admit students with connections to donors, staff, and faculty over similarly or better-qualified students who were members of the population the list was designed to benefit). 59 desai, supra note 32 (describing how early admissions and athletic recruitment practices work together to “warp[] the [admissions] process in favor of wealthier kids who can send in early-decision applications to selective schools without fretting about the size of the financial-aid package they’ll receive”). 1036 colum. j. race & l. [vol. 14:1023 regular decision round when they are not bound to accept the first offer of admission.60 researchers have consistently found that early admission disproportionately benefits the rich.61 colleges also benefit because early admission boosts their yield rate, which is the percentage of admitted applicants who end up enrolling at the school.62 a school with a higher yield rate can accept fewer students to reach its intended class size, which decreases its acceptance rates and can boost a school’s prestige and its place in college rankings.63 schools like trinity and harvard do not offer athletic scholarships, but recruited athletes can apply early decision.64 admissions officers like early admission because, by locking in tuitionpaying applicants, it eliminates some of the uncertainty inherent in their jobs, which in significant part depend on bringing in the highest achieving students who can afford tuition.65 it is therefore no surprise that athletes matriculate at such a high rate at selective schools. early decision, whether it serves as a means of securing students passionate about a particular school or merely as a wealth generator, is not inherently suspect. if schools, especially private ones, want to admit students partially—or substantially—based on their ability to pay, that is their prerogative. however, even a wealth-based justification is not wholly convincing, considering that many rich students end up paying far less than sticker price because of merit aid. a practice that caught on in the 1980s, “merit aid” scholarships became a vehicle to lure wealthy students to enroll in higher education institutions.66 by the 2000s, merit aid had turned into an “arms race” in 60 id. see also tough, supra note 34 (noting that “nonrich students” need to be able to “compare tuition costs and aid packages from multiple colleges before deciding where to enroll”). to again invoke trinity college, the approximately 300 early admits of a class totaling 589 were “quite a bit wealthier, on average, than the rest of the freshman class, and about half of [them] were athletes.” tough, supra note 34. see also kathy andrews, welcoming the class of 2022, trinity college (aug. 30, 2018), https://www.trincoll.edu/news/welcoming-the-class-of2022/#:~:text=the%20class%20of%202022%20at%20a%20glance%3a&text=record%2dse tting%2015%20percent%20first,of%20columbia%20and%20puerto%20rico [https://perma.cc/n73s-alp6]. 61 id.; see jennifer giancola and richard d. kahlenberg, true merit: ensuring our brightest students have access to our best colleges and universities, jack kent cooke foundation (last visited mar. 27, 2024), https://www.jkcf.org/research/true-merit-ensuringour-brightest-students-have-access-to-our-best-colleges-and-universities/ [https://perma.cc/228l-93pf] (finding that students who apply early “receive the equivalent of a 100 point bonus on the sat” [emphasis omitted]). 62 maroon editorial board, early decision unfairly favors wealthy applicants, the chicago maroon (dec. 3, 2018), https://www.chicagomaroon.com/article/2018/12/4/earlydecision-unfairly-favors-wealthy-applicants/ [https://perma.cc/7j9n-8tvg] (defining yield rate). see also tough, supra note 34 (adding additional support of yield being increased). 63 maroon editorial board, supra note 62. 64 harvard univ., prospective student-athletes, https://gocrimson.com/sports/2020/5/5/information-recruitinghelpfulinfo.aspx#:~:text=no.,students%20who%20demonstrate%20financial%20need [https://perma.cc/gpt7-hjb2] (“as an ivy league institution, harvard does not offer athletic or academic scholarships to students. however, harvard does provide need-based financial aid to those students who demonstrate financial need.”). 65 tough, supra note 34. 66 id. (describing jack maguire, a former admissions dean at boston college, who supposedly pioneered in the 1970s the technique of “deploy[ing] financial aid strategically, 2024] defanging diversity 1037 which schools were offering increasingly larger merit aid packages to prospective students. things may now be approaching a “death spiral” in which the vast majority of students are receiving merit aid.67 in recent years, wealthy admits have been able to demand ever-steeper “tuition discounts,” substantially decreasing overall tuition revenue.68 that is, rich families can more effectively “bargain” over tuition. these families could be lifelong contributors to a school if their child is admitted, but the price of that admittance comes at a cost—or rather, a cost reduction. the pressure to admit underwhelming rich kids comes not only from their parents but also from data, and enrollment managers, not wanting to lose their jobs, are understandably reluctant to buck the trend.69 this pressure results in even less aid to low-income students, however “meritorious” they might be.70 to put this phenomenon into context, american colleges collectively give students with a family income of over $100,000 more institutional aid, on average, than they do to a student with a family income under $20,000.71 simply put, colleges work much harder to admit wealthy students than talented ones from lowincome backgrounds, despite the fact that the wealthy students may end up giving less money to the school. admissions practices related to athletic recruitment, early decision, and merit aid all interact to create an admissions landscape that is less than egalitarian. certain candidates are privileged due to less “objective” admissions criteria such as perceived athletic ability or the likelihood of future financial contribution to the school. these advantages can be subtle but extremely consequential in such a competitive system. when schools have to choose between well-credentialed but often similarly qualified applicants, something as simple as playing the right sport can be the tiebreaker in admitting one student over another. these “side doors” function as a parallel system of affirmative action, though they engender far less controversy than race-based affirmative action. iii. defining diversity: an analytical framework the supreme court’s diversity jurisprudence in the higher education context centers almost exclusively on race-based tips. one major as a way to attract the students he most wanted to admit, whether they genuinely needed financial assistance or not” and explaining the proliferation of this practice among private and some public colleges). 67 id. (citing the national center for education statistics, which noted that “89 percent of students receive some form of financial aid, meaning that almost no one is paying full price”). 68 id. (referencing pérez recalling how rich families requesting tuition cuts as a condition of acceptance caused a “financial crisis” at trinity college). 69 id. (describing the rise of predictive analytics in admissions and financial aid, how these models point to admitting more wealthy students as the best way to ensure a school’s financial survival, and how admissions personnel feel compelled to follow the data). 70 id.; see also jaschik, supra note 58 (referencing a state audit report that describes a situation in which berkeley admission counselors were overruled in not recommending the admission of both a child of a staff member and child of a donor while a high-achieving third applicant from a low-income background and a “disadvantaged school” was recommended by both readers only to be rejected ultimately). 71 tough, supra note 34 (citing 2015–16 national postsecondary student aid study). 1038 colum. j. race & l. [vol. 14:1023 challenge facing a race-based diversity regime is the issue of line-drawing. as in any legal framework, courts or juries must decide where to make cutoffs—that is, they must decide who is “diverse” under law. the supreme court in sffa showed little interest in this exercise, but one can imagine future challenges to affirmative action policies will highlight line-drawing issues that bear on who gets which benefits. brazil’s college admissions process provides one example of the challenges inherent in this linedrawing approach, as the country’s universities have faced backlash regarding their own affirmative action policies in recent years. a. “come to brazil”: a brazilian case study and its lessons for the united states brazil provides perhaps the best example of what types of issues arise when a country institutes race-based quotas. brazil is one of the most ethnically and racially diverse countries in the world, with the largest portion of people with black ancestry outside of africa. 72 in this way, it is not unlike the multiracial united states. a self-stylized “racial democracy,” brazil did not introduce significant affirmative action measures in institutions of higher education until the early 2000s.73 in 2012, brazil passed the law of social quotas, a sweeping affirmative action policy that required half of incoming students in universities to come from public schools—an effort that effectively sought to increase the enrollment of black and low income students, who are disproportionately represented in the country’s poorly performing public elementary and high schools.74 the brazilian government created race-based quotas for black, brown, and indigenous applicants to ensure that these students had access to the country’s public universities. this process was designed to lead to the “democratization of higher education” and a correction of historical wrongs in brazil, which has its own fraught history of racial issues.75 almost immediately, however, black activists started highlighting instances of “race fraud” in which students who were not phenotypically black were matriculating to brazilian schools.76 activists believed that many white brazilians took admission spots reserved for applicants who 72 simon romero, brazil enacts affirmative action law for universities, n.y. times (aug. 30, 2012), https://www.nytimes.com/2012/08/31/world/americas/brazil-enactsaffirmative-action-law-for-universities.html [https://perma.cc/g7rf-n7z4]. 73 cleuci de oliveira, brazil’s new problem with blackness, foreign policy (apr. 5, 2016), https://foreignpolicy.com/2017/04/05/brazils-new-problem-with-blacknessaffirmative-action/ [https://perma.cc/a9k4-tsmy]. 74 romero, supra note 72. 75 id. see also de oliveira, supra note 73. for more on brazil’s history of racial strife, see generally vox, what it means to be black in brazil, youtube (sept. 23, 2020), https://youtu.be/jk1eturc8sa?si=dlqmlxt1q8ky_mo9 (discussing the complicated history of racial self-identification in brazil) and ciara nugent and thaís regina, how black brazilians are looking to a slavery-era form of resistance to fight racial injustice today, time (dec. 16, 2020), https://time.com/5915902/brazil-racism-quilombos/ [https://perma.cc/n3ql-mepu] (describing ongoing inequalities between black and nonblack brazilians and the rise of “quilombo” communities of black brazilians promoting antiracism and black empowerment). 76 de oliveira, supra note 73. somewhat ironically, many of these activists were now challenging the implementation of the very race-conscious policies they had fought for decades to enact. 2024] defanging diversity 1039 were phenotypically black, who lived the black brazilian experience.77 a state of “racial vigilance” in 2016 spread across universities.78 student activist groups reported and even sued students that they considered not sufficiently black, which resulted in the temporary or permanent ejection of dozens of students from campuses across brazil.79 the backlash on these campuses, in the public sector, and in the courts led in many instances to the establishment of “race boards” to evaluate which applicants for government jobs or public universities were truly, verifiably black.80 these entities screened for what they considered to be african phenotypical characteristics, examining applicants’ lip thickness, gum color, nose width, hair texture, skull shape, among others.81 in response to one school’s evaluation committee, students were said to have shaved their heads, worn beanies, gotten tans, and employed face makeup in an effort to appear more “[b]lack.”82 targeted students, many of whom identified as “pardo” (brown)—a term signifying a mixed-race person with african ancestry—were kicked out of their educational programs, some suing to reinstate their admission.83 the pardo identity is a complicated one in a country as uniquely diverse as brazil, where over forty percent of people identify as mixed-race, and around thirty percent of white-identifying brazilians have black ancestors.84 a number of these self-identified pardo students had fairly recent african ancestry, such as a black grandparent, and considered themselves proudly mixed-race—that is, a typical brazilian—which helps to explain why racial line-drawing can be a quixotic enterprise in brazil.85 some observers cite the racial evaluation boards as engaging in a “witch hunt,” but brazilian activists view them as a necessary deterrent, 77 lulu garcia-navarro, for affirmative action, brazil sets up controversial boards to determine race, npr (sept. 29, 2016), https://www.npr.org/sections/parallels/2016/09/29/495665329/for-affirmative-action-brazilsets-up-controversial-boards-to-determine-race [https://perma.cc/6vf9-h9bx]. 78 de oliveira, supra note 73 (describing the work of colectivo negrada, setorial negro, and other groups in identifying and seeking the removal of non-black students who gained admittance to schools via brazil’s affirmative action policy). 79 id. 80 id.; garcia-navarro, supra note 77. 81 de oliveira, supra note 73 (describing a leaked checklist which mentioned several of the characteristics to look for and evaluate applicants on). 82 id. (presenting ethnicity evaluation committee member prof. georgina lima’s comment that “[p]eople would shave their heads, wear beanies, get a tan. just a series of strategies to turn themselves [b]lack.”). 83 id., garcia-navarro, supra note 77 (describing how one self-identified afro brazilian decided to sue after his school’s race board deemed him not pardo and therefore ineligible for his current job). 84 de oliveira, supra note 73; garcia-navarro, supra note 77. 85 de oliveira, supra note 73 (presenting the story of pseudonymous “fernando” who was kicked out of school but who views himself as pardo, coming from a family that he says struggled with discrimination when his white grandfather married his black grandmother). garcia-navarro, supra note 77 (presenting lucas siqueira, who lost a highly competitive job at brazil’s ministry of foreign affairs after a race committee, spurred to investigate by members of the public who dug into siqueira’s social media accounts, deemed him not black, despite him having a black grandfather). 1040 colum. j. race & l. [vol. 14:1023 given the country’s complicated racial history.86 because so much of the country is mixed-race, some believe that skin tone matters more than race in this racial democracy, making the race determinations of committees an all-the-more convoluted—and consequential—exercise.87 as one ousted university student noted, “[n]one of the race committee [interviewers] were pardo. there was no one there that could identify with me.”88 even though affirmative action policies account for mixed-race individuals, the student felt singled out for being lighter skinned.89 a major problem with brazil’s system was that applicants were asked to racially self-identify. that is, they were asked to select their own race, which opened a multitude of responses that overwhelmed a government ill-equipped to evaluate the race of these applicants in a timely and systematic way against the backdrop of growing social anxiety and calls for reform. from brazil’s experience implementing an affirmative action regime, several lessons can be learned. first, clear guidelines must be in place to ensure that the policy helps the intended population. that is, at some level, there will have to be a discussion of how best to define “black person” for the purposes of affirmative action in the american context. second, policies must be enforced in a way that seems more objective—one can hardly imagine a “race panel” deciding if an applicant qualifies for affirmative action in the united states. therefore, policymakers must find a more objective framework that presents as more legitimate in the eyes of the people. third, there must be ways of preventing both “racial fraud” and “witch hunts” or other types of activism that is ultimately meant to “expose” persons who are not viewed as sufficiently “black.” if all of the above seems unworkable or even dangerous, that is because this is likely so. as will be discussed below, a purely race-based affirmative action justification is susceptible to numerous challenges that make such a scheme virtually impossible to implement successfully. b. history lesson: a brief survey of black racial and ethnic identification not unlike brazil’s pardo, many terms—e.g., african american; black; person of color (“poc”); afro-american; nonwhite; colored; negro; brown; minority; “melanated”; and bipoc—have been created to describe persons of african ancestry living in the united states. these modes of racial self-identification will only continue to proliferate amongst americans, exacerbating the challenges of defining who is diverse. 86 garcia-navarro, supra note 77 (noting committees are a deterrent); de oliveira, supra note 73 (noting general support for the race commissions among black brazilians while others see it as a “witch hunt”). 87 garcia-navarro, supra note 77. siqueira describes visiting at least seven dermatologists who used the fitzpatrick scale, a test measuring skin tones, to prove his afrobrazilian identity. 88 de oliveira, supra note 73. 89 id. 2024] defanging diversity 1041 the newly en vogue “people of color” has already encountered difficulties.90 professor efrén pérez of ucla describes the label as being created by and for african americans but a moniker that has “evolved into an identity that politically mobilizes many nonwhites toward common goals.”91 the term has obvious social implications, but it also contains cultural and political dimensions as well.92 further, the histories behind these terms tend to be complex, as their meanings evolve at least as quickly as social mores and political speech. for example, the term “person of color” has historical roots that differ significantly from its modern usage.93 the word “negro” was once a near-ubiquitous term.94 once-heralded political chimeras like “african 90 see benjamin goggin, there's a growing debate over who qualifies as a 'person of color' — who is and isn't included?, insider (dec. 8, 2018), https://www.insider.com/theinternet-is-debating-who-to-call-people-of-color-2018-11[https://perma.cc/g59e-wslp] (describing the evolution of the term “person of color” from a social justice-oriented phrase to a more widely adopted term and the ensuing debate over whether asians should be considered people of color, specifically in contrast to black people, whose experiences and viewpoints many argue are erased by use of the term “people of color”) and e. tammy kim, the perils of “people of color”, the new yorker (july 29, 2020), https://www.newyorker.com/news/annals-of-activism/the-perils-of-people-of-color [https://perma.cc/6zyg-6lmx] (discussing the origins of the term and the presence of antiblack racism among “people of color” while simultaneously cautioning against the abandonment of the solidarity inherent in the intersectional phrase). 91 efén pérez,“‘people of color’ are protesting. here’s what you need to know about this new identity.”, the washington post, https://www.washingtonpost.com/politics/2020/07/02/people-color-are-protesting-hereswhat-you-need-know-about-this-new-identity/ [https://perma.cc/hye5-e5ta] (researching the history and eventual adoption of the term “people of color” by mainstream newspapers). 92 id. for example, pérez found in his research that “[a] stronger level of poc identity is strongly associated with support for blm among [b]lack, latino and asian adults, independent of other influences like personal ideology. this pattern also emerges on other political issues, like support for deferred action for childhood arrivals (daca) and curbing police brutality.” pérez also found that support for the term “people of color” tended to narrow when individuals felt their respective racial group’s unique needs and challenges were being ignored within the broad “poc” framework. 93 kim, supra note 90. gens de couleur originally described mixed-race colonial subjects in eighteenth-century france. 94 w.e.b. du bois, the name negro, teaching american history (last visited mar. 28. 2024), https://teachingamericanhistory.org/library/document/the-name-negro/ [https://perma.cc/s74q-h62q].“negro” was endorsed by black intellectual titans like author and activist w.e.b. du bois, who called it a “fine” word that is as much an accident of history as is the widespread adoption of words like “[w]hite,” “german,” or “anglo-saxon.” id. du bois believed that the term was as definite “as any name of any great people” and that, practically speaking, black people needed some way to differentiate themselves and their communal struggles and priorities from that of white people (hence the disutility of a nondescript “american” moniker). still, “negro” fell out of widespread use by the 1970s. see ferris state university jim crow museum, when did the word negro become socially unacceptable?, jim crow museum of racist memorabilia (oct. 2010), https://www.ferris.edu/htmls/news/jimcrow/question/2010/october.htm [https://perma.cc/7sx6-lmwb] (outlining a controversy around sen. harry reid’s use of the word “negro” and tracing the history of the word in the united states). see also ben l. martin, from negro to black to african american: the power of names and naming, 106 political science quarterly, 83, 107 (1991) (analyzing the historical debates and social movements centered around competing notions of black racial and ethnic identity). of course, the term would seem offensive to many black people today, but social conventions can change quickly. indeed, the term “black” was offensive to many african americans living in the first half of the twentieth century. id. at 8. 1042 colum. j. race & l. [vol. 14:1023 american” face questions probing their continued relevance.95 today, in the “black vs. african american” debate, some argue that the default to “african american,” often borne out of a desire to appear politically correct or merely polite, obscures differences among persons with african ancestry.96 terms of racial self-identification carry no fixed notions of identity, but are rather social and political descriptors that are subject to the myriad forces that cause their use to ebb, evolve, or evaporate altogether.97 the politics of the term “black” are vast and often situation dependent. for example, the npr podcast “code switch” presented the story of christina greer. during a pre-orientation event for black students at tufts university in the mid-1990s, greer recalled one session in which students were asked to close their eyes and raise their hands if their parents had told them not to associate with “[b]lack” students upon their arrival to tufts. what initially seemed an odd question to greer—in a room full of black kids—made sense when she opened her eyes and discovered “everyone’s hands were raised except for the [six] [b]lack americans” because the rest of her peers in the room were either black immigrants or the children of black immigrants, greer recalls.98 greer goes on to recount other differences between what she terms “jbs” or “just [b]lacks” (i.e., nonimmigrant or non-immigrant-descended black people) and these other students, such as the various affinity groups catering to, for example, students of african or caribbean origin (in addition to the general black student union).99 of course, black students in these groups sometimes viewed themselves as one community, but at other times, these separate identities predominated, which is not a phenomenon unique to tufts or any university for that matter.100 such differences, when highlighted, can be a 95 see martin, supra note 94 at 1 (describing jesse jackson’s endorsement of the term “african-american” as an ethnic reference to supplant a racial one (i.e., “[b]lack”) and the term’s eventual adoption in the national press). by the late 1960s, “african american” became popular due to the term’s ability to unite black persons of varying backgrounds by emphasizing their “american-ness” without glossing over a shared african heritage. 96 cydney adams, not all black people are african american. here's the difference., cbs news (june 18, 2020), https://www.cbsnews.com/news/not-all-black-people-are-africanamerican-what-is-the-difference/ [https://perma.cc/prd8-twvx] (noting that “black lives matter protests have opened up conversations about the history of privilege, racism, and the lived experiences and identities of black people in america.”). while “african american” is a nation-specific term usually describing black persons born in the united states, “black” could refer to persons of african ancestry born in africa, the caribbean, europe, or elsewhere. id. of course, for much of this country’s history, most “black” people were enslaved africans or their descendants, but this changed as immigration from africa and elsewhere increased in the latter half of the twentieth century. id. these people were more likely to be firstand second-generation immigrants without a direct link to enslaved americans or their progeny. id. 97 the issue of self-identification and the associated terminology is not solely a black one; one need look no further than the perennially controversial term “latinx.” see, e.g., luis noe-bustamante, about one-in-four u.s. hispanics have heard of latinx, but just 3% use it, pew rsch. ctr. (aug. 11, 2020), https://www.pewresearch.org/race-andethnicity/2020/08/11/about-one-in-four-u-s-hispanics-have-heard-of-latinx-but-just-3-use-it/ [https://perma.cc/94k8-wxqc]. 98 code switch, who’s ‘black enough’ for reparations?, npr, at 6:32-7:23 (feb. 3, 2021), https://www.npr.org/2021/01/25/960378979/whos-black-enough-for-reparations [https://perma.cc/c9uq-99wp]. 99 id. at 4:34-4:54. 100 id. at 4:54-5:22. 2024] defanging diversity 1043 source of tension even within singular racial groups such as black americans. these myriad tensions—the painful history, the competing powers and communities, the ever-changing faces claiming to speak for what ultimately may be a collective of intersecting but differentiated interests— ensure that “blackness” as a concept is anything but straightforward. selfidentifying can in this way involve innumerable considerations and sometimes imperceptible nuances that are lost even on the individuals themselves as the role of history—both as it happened and as it is retold— can shape our perceptions of our own identity.101 over a decade ago, historian ira berlin remarked that “[s]uch discord over the meaning of the african american experience and who is (and isn’t) part of it is not new, but of late has grown more intense.”102 it is undeniable that the black experience, whether that of the descendants of enslaved people or of voluntary immigrants, is at some level a shared one. for example, africans are more likely than other immigrants to live near african americans; this proximity results in black immigrants being deported at higher rates than other immigrants because the black communities in which they reside are already over-surveilled.103 moreover, 101 even major corporate entities have gotten behind this idea of telling a more “complete” story. see cartoon network, tell the whole story  the crystal gems say be antiracist  cartoon network, youtube (dec. 3, 2020), https://www.youtube.com/watch?v=7jhec-_8i5a&ab_channel=cartoonnetwork (presenting the story of lewis latimer and his role in the creation of the modern lightbulb—all of which is a vehicle for commentary on the erasure of black narratives from history and the importance of telling a more complete story). 102 ira berlin, the changing definition of african-american: how the great influx of people from africa and the caribbean since 1965 is challenging what it means to be africanamerican, smithsonian magazine, (feb. 2010), https://www.smithsonianmag.com/history/the-changing-definition-of-african-american4905887/ [https://perma.cc/shk6-uhma] (describing berlin’s appearance on public radio to discuss the emancipation proclamation and the concept of “self-emancipation” of enslaved africans, which has generated controversy among historians). 103 see, e.g., ashoka mukpo, for black immigrants, police and ice are two sides of the same coin, aclu (sept. 3, 2020), https://www.aclu.org/news/criminal-law-reform/forblack-immigrants-police-and-ice-are-two-sides-of-the-same-coin [https://perma.cc/7nwm9lyl] (presenting the story of guinean amadou diallo, who was gunned down by nypd in the bronx over 20 years ago. diallo represents one of many black immigrants whose experiences with law enforcement are colored by their relationship to the black community in the united states. that is, no matter one’s origin, dark skin marks one as “black” in america, and all associated challenges attach, even if one is not from this country and was not born into the legacy of slavery and segregation. the author, recounting diallo’s story, suggests that the persistent over-policing of black neighborhoods generally led in part to diallo’s death, noting that modern chants of #blacklivesmatter should include advocacy for black immigrant communities. mukpo also notes that, despite only constituting about 7% of non-citizens, black immigrants make up over 20% of those in criminal deportation proceedings, another testament to the impact of systemic racism on native black and black immigrant communities alike). see also peniel ibe, immigration is a black issue, am. friends serv. comm. (feb. 16, 2021), https://www.afsc.org/blogs/news-andcommentary/immigration-black-issue [https://perma.cc/a2ye-fygg] (noting that, despite making up less than 9% of the undocumented population, black immigrants make up over 20% of all immigrants facing deportation on criminal grounds or due to criminal offenses) and shamira ibrahim, ousman darboe could be deported any day. his story is a common one for black immigrants, vox (feb. 5, 2020), https://www.vox.com/identities/2019/9/30/20875821/black-immigrants-school-prison1044 colum. j. race & l. [vol. 14:1023 black immigrants have similar poverty rates to u.s.-born black persons, with twenty percent of black immigrants living below the poverty-line compared with twenty-eight percent of u.s.-born black persons.104 also, african immigrants, by virtue of being black in america, are in some ways more likely to identify with black american culture. african immigrant children also share the yoke of american racism and continue to be frontline leaders in racial justice movements.105 these similarities, these shared experiences, surely unite black people in undeniably important ways. however, this unity is not absolute, and growing divisions could further complicate what it means to be “black” and “diverse” in a post-affirmative action world. in light of the below, it is crucial that black americans recognize the shared history and challenges of the diaspora, as opponents of affirmative action may try to sew division to weaken political unity among black persons in an effort to undermine diversity initiatives. c. state of play: modern fault lines in black self-identification immigration policy and the arrival of more african and west indian immigrants to the united states has intensified the nationwide discussion of black identity, and this conversation is already seeping into the affirmative action debate. diversity advocates must take care not to engage in reductive arguments that pit members of the black diaspora against one another. the “ados” movement, which has gained prominence in recent years, provides an example of potential division. ados, which stands for “american descendants of slavery,” is a group that argues, among other things, that affirmative action policies designed to help black americans descended from enslaved people have mostly benefitted other groups, including african and caribbean immigrants.106 ados believes that descendants of the formerly enslaved should have their own racial category on the census as well as on college applications.107 groups like ados have seized upon the growing exclusion of “native [b]lacks”108 at elite colleges as a rallying cry to push their policy preferences. deportation-pipeline. [https://perma.cc/s2yw-xdyq] (describing the “prison-to-deportation pipeline” and its effect on black immigrant communities). 104 monica anderson, a rising share of the u.s. black population is foreign born 20, pew rsch. ctr. (april 9, 2015), https://www.pewresearch.org/socialtrends/2015/04/09/chapter-1-statistical-portrait-of-the-u-s-black-immigrant-population/ [https://perma.cc/4ngp-n8zq]. 105 for example, ayọ (formerly, “opal”) tometi, a founder of the black lives matter network, is the daughter of nigerian immigrants. see aly wane, a conversation with opal tometi, peace newsl. (syracuse peace council, syracuse, n.y.) july – aug. 2015 at 8, https://www.peacecouncil.net/sites/default/files/pnl/pdf/pnl844jul-aug15%20small.pdf [https://perma.cc/q8c8-pncq] (stating in interview that tometi is the daughter of nigerian immigrants). 106 farah stockman, “we’re self-interested”: the growing identity debate in black america, n.y. times (last updated nov. 13, 2019), https://www.nytimes.com/2019/11/08/us/slavery-black-immigrants-ados.html. 107 id. 108 this term describes the descendants of people who were enslaved and subjected to forced migration to a foreign land (that would become the united states) by colonizers who themselves deprived the land’s actual native inhabitants of its use. it is admittedly a bit of a misnomer, but it seems to be the most commonly used term to distinguish the descendants of slaves in the united states from foreign-born black people and their progeny. 2024] defanging diversity 1045 it is true that african immigrants and the children of african immigrants are disproportionately represented at higher education institutions relative to their percentage of the u.s. population, a reality that is even more pronounced at elite schools.109 just as in broader american society, many students of african immigrant origin do not fully or solely identify as african american or black.110 as one author noted, “[t]hese new arrivals have shaped their own priorities, values, and identities around their former lives in their native countries; naturally, it is not likely that such uniquely shaped priorities and values of immigrants will translate to the native [b]lack american child who has her own experiences that might even contradict the former.”111 similarly, many “native” black people do not necessarily feel that they share a racial or ethnic identity with immigrant-born black persons or, at least, believe that room for differentiation exists.112 these sentiments have been well documented at harvard as well.113 a june 2004 new york times article contextualizes the nativeimmigrant landscape as it existed almost twenty years ago. during a forum at a reunion of harvard’s black alumni, professor henry louis gates jr. and harvard law professor lani guinier brought attention to the fact that, out of harvard’s roughly eight percent of black undergraduates, as many as two-thirds were “west indian and african immigrants or their children, other terms include “just [b]lack,” “regular [b]lack,” and “slave [b]lack.” see, e.g., josie f. abugov, are we in the minority?, the harv. crimson (oct. 15, 2020), https://www.thecrimson.com/article/2020/10/15/gaasa-scrut/ [https://perma.cc/34mm-ucze] (listing various monikers black students at harvard used to self-identify). 109 for example, in 2007 researchers at princeton and university of pennsylvania published a report stating that, at ivy league schools, 41 percent of the black students were of immigrant origin (18 points higher than at similarly selective state schools). douglas s. massey, et al., black immigrants and black natives attending selective colleges and universities in the united states, am. j. of educ., vol. 113, feb., 2007, at 243, 249, www.jstor.org/stable/10.1086/510167. 110 id. at 253 (describing a survey of black students at selective schools and finding that “immigrantand native-origin [b]lack [students] appear to hold somewhat different ethnic identities, with a larger share of immigrants expressing an identity other than just [b]lack, negro, or african american”). 111 maurice r. dyson, racial free-riding on the coattails of a dream deferred: can i borrow your social capital?, 13 wm. & mary bill rts. j. 967, 994 (2005), https://scholarship.law.wm.edu/wmborj/ vol13/iss3/8. 112 for example, black students at cornell university lobbied for more “underrepresented [b]lack students” whom they defined as black americans with several generations in the united states. stockman, supra note 106. these students cited a “lack of investment” from the school in students whose families were affected by slavery in america. stockman, supra note 106. 113 abugov, supra note 108 (describing the rise of a “generational african american” or “gaa” identity at harvard for native black students and a recognition of the scarcity of such non-immigrant students at the college). abugov documents the rise of a gaa affinity group and the related warnings from faculty—including prof. henry louis gates jr.—that the group could be seen as competing with or antagonistic to the numerous africa-centered groups on campus. abugov questions the role affirmative action plays in admitting black students to campus, and she considers the role of groups such as ados in the broader conversation around black identity. 1046 colum. j. race & l. [vol. 14:1023 or to a lesser extent, children of biracial couples.”114 the professors, who were concerned about elite schools overlooking black students whose families had been in the united states for generations, emphasized that drawing such distinctions was not about excluding immigrants. rather, they were concerned about how native black students were disadvantaged by the legacy of jim crow laws, segregation, poverty, and inferior schooling.115 in theory, these are the very students that affirmative action was designed to protect, the times article suggests.116 that insinuation, however, is problematic because the supreme court in bakke explicitly rejected social justice-oriented rationales for racebased considerations in admissions, opting for the more nebulous concept of “diversity.” this option shielded schools from having to engage with how the legacy of slavery impacts the social and economic outcomes that feed into black americans’ college preparedness. the court expressed a preference for “diversity” for its own sake over more social justice-oriented justifications such as affirmative-action-as-reparations. still, that does not eliminate the “moral understanding of the purpose of affirmative action,” which is precisely the social justice-rooted belief that affirmative action does—or at least should—remedy past societal discrimination.117 the vast overrepresentation of african students in schools compared to native black americans complicates the debate about whether affirmative action is serving its intended purpose and its intended population.118 some see affirmative action as more of a remedial system designed to correct for the ongoing racial ills of this country, while others view it as a means to correct for past racial injustice. some in the latter camp view the overrepresentation of african students as a form of “racial free-riding” that, if left unchecked, will exacerbate inequality, especially for low-income native-born black students.119 this article does not adopt that language, as any discussion of “free-riding” is best employed when discussing its most prevalent form (i.e., legacy admissions) and should not be weaponized by one marginalized ethnic group against another. still, it is true that the current iteration of affirmative action discourse “focuses on race, which elides an honest discussion about class and ethnicity in the context of [b]lack student admissions.”120 to the extent affirmative action as currently practiced serves as a “clumsy proxy” for fulfilling a “moral” mandate, it should be reformed to clarify and to better reach its intended beneficiaries.121 this 114 sara rimer & karen w. arenson, top colleges take more blacks, but which ones?, n.y. times (june 24, 2004), https://www.nytimes.com/2004/06/24/us/top-collegestake-more-blacks-but-which-ones.html. 115 id. 116 id. 117 dyson, supra note 111, at 974. 118 as one author put it, “[f]or african americans who find the overrepresentation of their west indian, african, and biracial counterparts [in college admissions] troubling, the assumption remains that affirmative action should be a means to correct historical injustices against african americans.” id. at 972. 119 id. at 922. 120 id. at 971. 121 id. at 977 (stating that “[w]hile affirmative action, as currently practiced, is a clumsy proxy for fulfilling at least the ‘moral’ mandate to target its intended beneficiaries, 2024] defanging diversity 1047 could be accomplished by schools clarifying how they define and weigh diversity in college applications. these distinctions become especially salient when considering the prevalence of black students from economically advantaged122 backgrounds at elite schools. it is well-documented that “highly selective colleges, epitomized by the ivy league, have seen [b]lack enrollment stagnate, and increasingly they have admitted the sons and daughters of voluntary [b]lack immigrants to the u.s. rather than descendants of enslaved [b]lac[k] [people] forcibly brought to america’s shores.”123 black immigrants are, on average, more educated than white americans and native black americans, which results in them having a higher proportional representation at selective colleges.124 in addition, sociological the temptation to racialize other minority groups in a vicious fight to the top is all too dangerous if past experience is any indication. here, too, the remarks of tucker carlson come to mind”). 122 the argument, affirmative action and america’s ‘cosmetically diverse’ college campuses, n.y. times, at 11:40 (feb. 9, 2022), https://www.nytimes.com/2022/02/09/opinion/affirmative-action-the-argument.html (noting that 2/3 or 70% of black students at elite colleges are from “economically advantaged” backgrounds). of course, “economically advantaged” in this context does not necessarily mean “rich,” especially at a school such as harvard where the median household income is already significantly higher than the national average. the upshot, economic diversity and student outcomes at harvard university, n.y. times, https://www.nytimes.com/interactive/projects/college-mobility/harvard-university. 123 howard gold, opinion: the harsh truth about black enrollment at america’s elite colleges, marketwatch (june 25, 2020, 9:21 am), https://www.marketwatch.com/story/theharsh-truth-about-black-enrollment-at-americas-elite-colleges-2020-06-25. 124 immigrant blacks more likely to attend elite colleges, phys.org (aug. 11, 2009), https://phys.org/news/2009-08-immigrant-blacks-elite-colleges.html [https://perma.cc/ggg4-yrcz] (“a larger proportion of immigrant [b]lack high school graduates attend selective colleges and universities than both native [b]lack and white students in america, according to a study by sociologists at johns hopkins university and syracuse university.”). see also monica anderson & phillip connor, sub-saharan african immigrants in the u.s. are often more educated than those in top european destinations, pew rsch. ctr. (april 24, 2018), https://www.pewresearch.org/global/2018/04/24/subsaharan-african-immigrants-in-the-u-s-are-often-more-educated-than-those-in-topeuropean-destinations/ [https://perma.cc/p3ud-z7k3] (“immigrants from sub-saharan africa ages 25 and older in the u.s. not only stand out from those in europe, but they are also more likely than the overall u.s.-born population to have at least some college experience (69% vs. 63%)”); immigrants from africa boast higher education levels than overall u.s. population 1, new am. econ. (jan. 11, 2018), https://www.newamericaneconomy.org/press-release/immigrants-from-africa-boast-highereducation-levels-than-overall-u-s-population/ [https://perma.cc/856l-7bzv] (“these immigrants naturalize at high rates, they attain higher levels of education than the overall u.s. population as a whole, and are more likely to have earned their degree in a science, technology, engineering, and math, or stem, field.”). black immigrants also have higher median incomes than native black people due to their higher levels of education in their home countries and domestically. anderson, supra note 104. furthermore, “[i]mmigrant [b]lack and white children are more likely than native [b]lack children to come from two-parent households and to attend private schools, two factors that have been shown to have a positive impact on attending an elite college.” phys.org, supra note 124. indeed, many of the most prominent black political figures in recent memory—barack obama, kamala harris, and colin powell—are all the children of immigrants. despite being only about 10% of black americans, black immigrants are well represented in elite educational spaces. see christine tamir & monica anderson, one-inten black people living in the u.s. are immigrants 15, pew rsch. ctr. (jan. 20, 2022), https://www.pewresearch.org/race-ethnicity/2022/01/20/one-in-ten-black-people-living-in1048 colum. j. race & l. [vol. 14:1023 factors likely contribute to the relative success of african immigrants in the united states and to their disproportionate representation at top schools.125 even when selective colleges do seek out low-income black students, they tend to pull from a small set of elite private schools.126 schools do not seriously recruit black talent from average or underperforming public high schools that black students are far likelier to attend.127 to be clear, students from immigrant backgrounds have earned their spots. and they surely contribute to diversity of the student bodies at elite schools. harvard can and should admit african students if they are qualified. harvard should not, however, pass their presence off as evidence of its implicit commitment to correcting past discrimination because its current admissions practices, in reality, evince no such commitment. the the-u-s-are-immigrants/ [https://perma.cc/b7k3-6sxj]; see also phys.org, supra note 124 (noting that “among immigrant [b]lack students, those who either immigrated with their families or are american-born children of immigrants, 9.2 percent were enrolled in elite colleges such as those in the ivy league, compared with 2.4 percent of other [b]lack students and 7.3 percent of white students”). african immigrants are assumed to enjoy other potential advantages that ease acculturation in american society, such as positive stereotypes of hardworking immigrants and “psychological advantages” such as being from a majority-black country in which positive role models abound and which, absent a race-based caste system, leads many immigrants and their children to be optimistic about their prospects for success in the united states. angela onwuachi-willig, the admission of legacy blacks, 60 vand. l. rev. 1141, 1152 (2007) (describing the growing exclusion of native black students at elite colleges and arguing that admissions offices should give increased weight to black applicants’ “ancestral heritage” to more fully deliver on the promises of the diversity rationale and affirmative action). 125 onwuachi-willig, supra note 124, at 1169-1170 (discussing the differing impact of “oppositional culture” on native and immigrant black people). onwuachi-willig discusses additional social factors that might ease the transition of immigrant and mixed-race students to elite environments: “overall, factors such as living in integrated neighborhoods, attending integrated schools and programs, and having a diverse group of friends in high school may present an advantage for [these students] because they allow for greater familiarity with integrated environments and allow for the opportunity of an easier transition for these students in predominantly white college environments, which studies have repeatedly shown can be alienating for students of color.” id. at 1174. onwuachi-willig also writes that “to the extent that there are positive stereotypes about [b]lack immigrants and mixed-race people, such perceptions may transform into psychological benefits that enable a certain kind of psychic freedom from the racial stigma and disadvantage that legacy black people may have a harder time obtaining because of pervasive, negative stereotypes about africanamericans.” id. at 1177. 126 these students have been deemed the “privileged poor” due to the scarcity of low-income students at schools like phillips exeter and harvard westlake. admissions officers seem to value students from these schools because they satisfy a diversity quotient without requiring enhanced outreach to schools that are not elite feeder schools. for more, see generally anthony a. jack, the privileged poor (2019); see also gold, supra note 123. 127 gold, supra note 123. also consider lani guinier’s words in the boston globe almost two decades ago: “many colleges rely on private networks that disproportionately benefit the children of african and west indian immigrants who come from majority [b]lack countries and who arrived in the united states after 1965. affluent, well-educated new immigrants from south america bolster latino diversity statistics while the children of migrant farm workers are left behind.” lani guinier, our preference for the privileged, bos. globe, july 9, 2004, at a13, http://archive.boston.com/news/globe/editorial_opinion/oped/articles/2004/07/09/our_prefere nce_for_the_privileged?pg=full. 2024] defanging diversity 1049 import of viewing this debate through the appropriate lens cannot be understated.128 sffa and ados—groups that effectively pit minorities against one another in a struggle for resources—demonstrate well how these conversations can be weaponized to push for policy preferences that may ultimately have little to do with the purported question before a court (or the court of public opinion) and may in fact do further harm to all marginalized communities. it is therefore paramount that greater ethnic and socioeconomic diversity not come at the expense of groups benefitting from the current system of affirmative action. diversity’s amorphous character provides universities an admissions criterion as laudable as it is malleable. even when “diversity” was a viable admissions justification, elite schools were not especially concerned with its proper meaning. for example, in the aforementioned times piece, then-harvard president lawrence h. summers declined to comment on this issue, and lee c. bollinger, then-president of columbia university (the same “bollinger” defending the university of michigan’s admissions policies in the gratz and grutter cases), said that a black applicant’s ancestry should not matter “for purposes of admissions,” arguing that the “differential effect” of whether one “[grew up] [b]lack or white” is the real basis for affirmative action.129 their responses—and their lack of attention to potential differences among black applicants—are not surprising. one former executive at an sat test development company noted that colleges had “found an easy way out” by admitting highperforming black students from immigrant families, as higher education institutions were no longer connected to the civil rights movement in the ways they had been previously.130 still, universities like harvard tout their commitments to the ideals of “diversity,” “equity,” and “inclusion,”131 words that carry social justice undertones and that suggest a commitment to remedying past harms in pursuit of a more just society. smiling black and brown faces populate any given school’s admissions brochure, and one can hardly imagine an alumni donation mailer not featuring a note from an underprivileged ethnic student discussing how a benefactor’s generosity has helped finance their education at their dream school.132 this veneer of a multi-ethnic utopia starkly contrasts with the reality at elite schools. 128 “just as native [b]lack americans will seek recourse for the preferred status of immigrants, so too will the preferred status of [b]lack [americans] in admissions become the predicate on which either latinos or native americans will challenge their status. further, with asians, asian americans, and caucasian women being among the greatest beneficiaries of affirmative action, it might be reasonable to believe that another inter-group conflict is inevitable. . . a divide-and-conquer strategy cannot be too far away.” dyson, supra note 111, at 974. 129 dyson, supra note 111, at 970. 130 id. at 989. 131 equity, diversity, and inclusion, harv. coll. dean of students off. (last visited apr. 20, 2024), https://dso.college.harvard.edu/inclusion-belonging-team [https://perma.cc/h9hk-lqzj]. 132 for more on the deceptive diversity of college brochures, see deena prichep, a campus more colorful than reality: beware that college brochure, npr (dec. 29, 2013, 10:31 am), https://www.npr.org/2013/12/29/257765543/a-campus-more-colorful-than-realitybeware-that-college-brochure [https://perma.cc/lnx8-9uvu] (discussing the “inflated diversity” of certain colleges’ marketing materials); annie murphy paul, when images of diversity don’t match reality, huffpost (last updated march 11, 2014), https://www.huffpost.com/entry/when-images-of-diversity-_b_4934767 1050 colum. j. race & l. [vol. 14:1023 the diversity rationale was an all-in-one tool at the disposal of admissions offices everywhere. the language of diversity allowed universities to justify virtually any combination of non-white, non-male persons in their classes. social attitudes regarding who exactly is “diverse” are constantly changing. therefore, schools could espouse their commitment to attaining diversity in whatever mode it was presently fashioned. d. quantification conundrum: diversity’s line-drawing problem as in brazil, racial classifications grow exponentially more complicated with the increasing number of people identifying as mixedrace, biracial, or multiracial. given the pluralities and subjectivity involved in racial self-identification, the term “diversity” problematizes what would ideally be an objective line drawing exercise for affirmative action purposes. for example, the most recent u.s. census revealed an increase in non-hispanic americans who identify as multiracial, surging from six million to 13.5 million, a 127% increase over the last decade.133 including multiracial hispanics, the total number of mixed-race americans increased by 276%, and the group now represents about ten percent of the population.134 an uptick in the birth rate of multiracial babies is one obvious explanation. however, changing attitudes toward racial selfidentification as well as alterations to the u.s. census itself surely have contributed to this notable increase in people of mixed racial heritage.135 improvements in data processing and coding capacity also strengthened the government’s ability to capture and adequately report the responses provided by census takers.136 this shift is significant in several ways, not least of which being its potential impact on considerations of “diversity” and who fits into that framework. as one sociologist noted, “[t]he off-the-shelf standard american is going to be some kind of blend of asian, latino[,] and white. the big [https://perma.cc/pu6b-4d38] (presenting the findings of multiple studies highlighting discrepancies between the overrepresentation of students of color in college marketing materials and their actual numbers on campus and noting that the lived experiences of those students often differ from the versions presented in these materials); nathan willers, marketing authenticity in higher education, inside higher ed (june 24, 2019), https://www.insidehighered.com/blogs/call-action-marketing-and-communications-highereducation/marketing-authenticity-higher [https://perma.cc/xma4-mhz8] (documenting the use of digitally altered images in college admissions materials to promote false notions of campus diversity). curiously, schools devote comparatively fewer pages to espousing the benefits of legacy admissions, despite the far larger number of legacy students on campus. 133 race and ethnicity in the united states: 2010 census and 2020 census, united states census bureau (aug. 12, 2021), https://www.census.gov/library/visualizations/interactive/race-and-ethnicity-in-the-unitedstate-2010-and-2020-census.html [https://perma.cc/v52p-svqh]. 134 id. 135 sabrina tavernise et al., behind the surprising jump in multiracial americans, several theories, n.y. times (aug. 13, 2021), https://www.nytimes.com/2021/08/13/us/census-multiracial-identity.html?smid=twnytimes&smtyp=cur (describing this “surprising jump” in multiracial americans in census data). for example, until the year 2000, the u.s. census bureau only permitted one response for race per person, but in the 2020 census, write-in lines were added under the boxes for black and white, allowing respondents to describe their racial backgrounds in greater detail. united states census bureau, supra note 133. 136 id. 2024] defanging diversity 1051 question always is, how do blacks fit in.”137 african americans are the “one group that was never allowed to cross the line into whiteness,” but, in a world that may soon place less social cache on “whiteness,” it is less than clear how “blackness” may be defined in any context, let alone the highly consequential context of admissions to elite universities. america’s newfound plurality of intersecting racial identities complicates these dynamics, as terms like “diversity” and “white” are sure to take on new meanings as well. all of this is to say nothing of how race-based admissions tips should work for applicants checking multiple boxes. for example, how should an admissions team score a biracial and self-identified “black” female applicant who writes about overcoming racial adversity at her elite prep school? how much of a boost does she get? should she be seen more as a black student who has overcome obstacles or as a high-performing elite who may not “need” such race-based tips to secure her admission? when one attempts to weigh any of these factors, they introduce subjectivity into an already less-than-straightforward process. this all but ensures that some applicants will feel their rejections from their preferred schools were due to unfair penalizations or for tips given to questionably disadvantaged (and questionably deserving) others, even if those “others” are members of their same group. such tensions, not unlike those between some “native” black applicants and the children of immigrants, serve only to weaken support for the use of race in admissions. if the spirit of the diversity rationale is to persist in some form, it will inevitably encounter problems in quantifying the “blackness” of multiracial individuals as this demographic group becomes more visible. even though many schools now include a multiracial option on admissions questionnaires, one can easily imagine frictions emerging when greater numbers of mixed-race individuals, people who see themselves as black, are admitted on diversity grounds and are therefore, rightly or wrongly, injected into the affirmative action debate. a proliferation of black identities does not lend itself to straightforward evaluation in the context of the zero-sum admissions game, and any intraracial conflict would only weaken the power of black people to advocate for themselves as a collective. indeed, this phenomenon is not unlike the current dynamics that plague african and black american students on some college campuses. racial identities have never been fixed in the united states of america. issues of line-drawing can be fatal to any affirmative action regime, and racially and ethnically diverse countries like the united states are uniquely susceptible to these challenges. indeed, plessy v. ferguson, which in 1896 enshrined america’s “separate but equal” racial caste system, concerned a black man who was a so-called “octaroon.”138 that is, mr. plessy was a person with one-eighth of african blood, the equivalent of one great-grandparent, but enough african ancestry to be considered “black” in 1892 america. would a person with phenotypically european features that has a black great-grandparent be considered “black” today? would the question even arise—now or then—if not for phenotypical 137 id. 138 plessy v. ferguson, 163 u.s. 537 (1896). 1052 colum. j. race & l. [vol. 14:1023 expression? more interestingly, was the standard even applied consistently in 1892 america? some research suggests that it was not. an economics paper by ricardo dahis, emily nix, and nancy qian used u.s. census data to document a phenomenon in which over 300,000 black males self-identified as—or “passed for”—white between 1880 and 1940 (with thirty percent of them “reverse passing” as black in the following census).139 the authors use census data to examine the high rate at which black males in the u.s. changed their racial self-identification during the height of jim crow and anti-miscegenation laws. in addition to their statistical modeling, the authors provide large amounts of anecdotal data suggesting the various reasons that these presumably caucasianlooking black men chose to “pass” as white (largely due to a lack of social and economic opportunities for black men).140 facing discrimination in education, housing, and employment, many black males saw the ability to re-brand themselves as white as a chance at a better life.141 in an age where racial categories are more fluid than ever before, one can imagine a scenario where a “borderline” diverse applicant is admitted due to their perceived contributions to campus diversity, only to find that this applicant does not actually share lived experiences with the marginalized group that they claimed in their application. imagine a wealthy biracial male admit (with minimal black phenotypical expression) who, upon matriculation to harvard, does not socialize with other black students and does not offer a “unique” (i.e., “black”) perspective in class. does the “diversity” this student brings meaningfully contribute to the growth of his peers? does it matter that this student chooses not to engage with on-campus black programming or that he is otherwise socially and economically indistinguishable from his white peers? more consequentially, does it matter that this same applicant highlighted his blackness to give himself an edge in admissions? the phenomenon of racial amnesia was not reserved for whitepassing black people. many of this nation’s “white” majority, especially in the deep south, are less “white” than they allow themselves to believe. this phenomenon was illuminated in a study published in the american journal of human genetics, which showed through examination of genetic 139 ricardo dahis et al., choosing racial identity in the united states, 1880-1940, nat’l. bureau of econ. rsch., 2-3 (2019), https://www.nber.org/system/files/working_papers/w26465/w26465.pdf. the study focused on black men in part because of the difficulty of tracking black women, whose names might change with marriage, from census to census. 140 of course, mixed-race people have always existed, but acknowledgement of such a fact was in tension with attitudes of white supremacy and white racial purity of the past several centuries. to admit that mixed-race individuals were anything more than anomalies—despite empirical evidence to the contrary—would have posed an existential threat to the american project of white racial superiority. ideas like the need for racial segregation would have immediately been called into question. indeed, the very idea of “whiteness” would have been less absolute than many civic, intellectual, and religious leaders of the day would have preferred. for a helpful primer on this paper, see the weeds, the never ending election story, vox, at 39:35 (nov. 2020), https://open.spotify.com/episode/0qlugzdvuc5lftt2ygnetc [https://perma.cc/kga2-qrf5]. 141 though, of course, this transformation incurred heavy costs in many cases such as abandoning family members who could not or would not assimilate and moving away from one’s community. see generally dahis et al., supra note 139, at 13. 2024] defanging diversity 1053 data that many white americans have significant and recent black ancestry.142 the researchers found that americans with less than twentyeight percent of african ancestry—that is, more than twice the amount of black blood that plessy had—tended to identify as some type of european american as opposed to african american. ironically, especially in the south, a large portion of these white people have enough black ancestry to make them “black” under the “one drop” rule (an adage that if a person had even “one drop” of black blood, they were socially and legally considered black). in an appreciable sense, despite the racial tensions characteristic of the american south, many of its most stridently antiblack racists are themselves “black,” illustrating the incredibly complex ways in which notions of race inform america’s view of its history.143 like its brazilian counterpart, the u.s. government is ill-equipped for such line-drawing exercises in the complicated area of race. indeed, one does not want the government to formalize (again) the very types of racial quotients that plagued this country’s past. nor should any government branch have the power to enforce, investigate, and evaluate one’s heritage, a practice that is, at best, invasive and, at worst, dehumanizing. the aforementioned brazilian case study provides ample evidence that such systems are often flawed, and one wonders if a workable scheme even exists. moreover, it is not clear that granting the government broad investigative authority would not result in further violence upon black and brown bodies—an unjustifiable outcome in any context—in pursuit of quantifying something that is not easily quantifiable.144 even the supreme court has tacitly recognized the difficulty of racial quantification.145 142 see generally katarzyna bryc et al., the genetic ancestry of african americans, latinos, and european americans across the united states, am. j. hum. genetics (dec. 18, 2014), https://www.cell.com/fulltext/s0002-9297(14)00476-5. for additional media reporting on the article, see jenée desmond-harris, here’s where ‘white’ americans have the highest percentage of african ancestry, vox (last updated feb. 20, 2015, 2:22 pm), https://www.vox.com/2014/12/22/7431391/guess-where-white-americans-have-the-mostafrican-ancestry [https://perma.cc/y7pu-s57c]; and lizzie wade, genetic study reveals surprising ancestry of many americans, science (dec. 18, 2014), https://www.science.org/content/article/genetic-study-reveals-surprising-ancestry-manyamericans-rev2. 143 the researchers also found that around 19% of self-identified black folks had white ancestry linked to a european male, often appearing in the early 1800s. this fact squares with the routine and systematic rape of enslaved women at the hands of white men when slavery was still legal in the states, which produced many mixed-race children who were at once their fathers’ illegitimate children and legal livestock. as harriet jacobs wrote, “[w]hat tangled skeins are the genealogies of slavery!” harriet jacobs, incidents in the life of a slave girl 70 (2016) (protagonist discussing the complicated feelings engendered by the birth of her daughter due to the difficulties of life as an enslaved woman). 144 rani molla, genetic testing is an inexact science with real consequences, vox (dec. 13, 2019), https://www.vox.com/recode/2019/12/13/20978024/genetic-testing-dnaconsequences-23andme-ancestry (detailing some of the dangers and potential misuses of imperfect genetic testing procedures). 145 see, e.g., parents involved in cmty. sch. v. seattle sch. dist. no. 1, 551 u.s. 701, 723 (2007) (noting that, in striking down schools’ racial balancing schemes, “[e]ven when it comes to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in seattle and [b]lack/‘other’ terms in jefferson county”). the footnote to this section also noted that multi-racial applicants were either rejected or placed into a single racial category: “upon enrolling their child with the district, parents are required to identify their child as a member of a particular racial group. if a parent identifies more than one race on the form, ‘[t]he application will not be accepted and, https://www.vox.com/recode/2019/12/13/20978024/genetic-testing-dna-consequences-23andme-ancestry https://www.vox.com/recode/2019/12/13/20978024/genetic-testing-dna-consequences-23andme-ancestry 1054 colum. j. race & l. [vol. 14:1023 finally, the centralized collection of genetic information at a massive scale should caution anyone who sees this approach as viable.146 iv. trauma porn and introspective elites: legal and social implications of the diversity rationale a. the politics of trauma: the “adversity” narrative prior to diversity’s downfall, a chorus of voices in academic spaces and elsewhere have cited the discrimination to which the diversity rationale’s employment ultimately subjects students of color.147 before many of them ever set foot on a university campus, let alone fabled collegiate institutions such as harvard, black and brown students of color must master the art of the college application essay—an exercise that for non-wealthy, non-white students often involves a sort of commodification of one’s experiences, packaging them in the tight confines of a 500-ish-word essay meant to show how an applicant has “overcome adversity” or risen above challenging circumstances, as requested by an oft-ambiguous essay prompt. this nearly ubiquitous application requirement, the so-called “adversity narrative,” forces students to “reduce their own lives to stories of hardship,” as one writer put it.148 these essays serve the legitimate purpose of helping admissions committees calibrate their admissions criteria to account for opportunities various students have or have not had.149 college essay prompts clumsily (or dangerously) cast applicants’ identities and backgrounds in the same mold as “talents” or “hobbies.” that if necessary, the enrollment service person taking the application will indicate one box.’” id. at n.11. 146 see, e.g., eric rosenbaum, 5 biggest risks of sharing your dna with consumer genetic-testing companies, cnbc (june 16, 2018, 2:18 pm), https://www.cnbc.com/2018/06/16/5-biggest-risks-of-sharing-dna-with-consumer-genetictesting-companies.html [https://perma.cc/464w-htej] (surveying various risks of sharing genetic information with genetic testing services); and julian e. barnes, u.s. warns of efforts by china to collect genetic data, n.y. times (oct. 22, 2021), https://www.nytimes.com/2021/10/22/us/politics/china-genetic-data-collection.html (documenting china’s efforts to collect genetic data to build the world’s largest bio-database and warning that u.s. agencies should be doing more to secure critical technologies in that space). 147 see generally casey quinlan, 5 things that make it hard to be a black student at a mostly white college, thinkprogress (jan. 25, 2016), https://archive.thinkprogress.org/5-things-that-make-it-hard-to-be-a-black-student-at-amostly-white-college-33ef44abe034/ [https://perma.cc/uc76-vfum]; gabriela thorne, for students of color, ivy league schools have a long way to go, the nation (jan. 25, 2018), https://www.thenation.com/article/archive/for-students-of-color-ivy-league-schools-have-along-way-to-go/ [https://perma.cc/6zvl-yy5e]. 148 rose courteau, the problem with how higher education treats diversity, the atlantic (oct. 28, 2016), https://www.theatlantic.com/education/archive/2016/10/tradingidentity-for-acceptance/505619/ [https://perma.cc/5tfc-f89w]. 149 id. ironically, sffa may serve only to reinforce these trauma narratives, as minority applicants may no longer tick a racial box on their application, tacitly signaling to an admissions committee the hardships inherent in that classification. rather, the high court leaves room for these students to discuss race in other ways, such as through their admissions essays—the weight of which will surely grow in the wake of the decision. applicants will be incentivized to cram even more parts of their identity into those precious few paragraphs, but, perhaps, their ability to do so is itself a form of meritocracy. 2024] defanging diversity 1055 is, applicants are invited to inform admissions committees how their nonwhite, non-middle-class upbringings are a neat quirk that make them worthy of admission. because of this mold, white students are more likely to see their ethnic peers as window dressing for their educations, figures to be interacted with in pursuit of personal growth.150 but such a framing proves dangerous. the trauma essay reduces racial groups to monoliths: a smart-but-fungible asian or a black kid from the inner city. whether the black kid is actually from the inner city and whether the asian student enjoys a multifaceted existence prove irrelevant to their peers. similarly, whether the black student is even a “diversity admit” (and whether the asian student is not) prove immaterial once snap judgments are made. unfortunately, the reality inside university classrooms differs substantially from what the array of smiling benetton faces on school websites and brochures would suggest.151 a great irony—in truth, a great failing—of the u.s. education system is that the very need for a “balanced diet of multiculturalism” consumed by white college students stems from the widespread racial segregation and rapid resegregation of american primary and secondary schools.152 students today are less likely to have 150 one article, reviewing a book by natasha warikoo, recounts an excellent example of a student who, when asked if diversity created issues for their university, discussed the role of athletes on campus. id. the student initially felt athletic recruits had an unfair advantage, but they eventually came to see student-athletes as merely bringing a different type of qualification to the school—a realization that came after going to football games, which the student viewed as a “fun” part of student life. the implication here is that, because the athletes provide entertainment to the broader student populace, they are worthy of admission. the article then invites readers to swap the word “athletes” with “poor” or “minority”—a subtle change that makes clear the danger in this mode of thinking. this view of merit is dangerous because the underlying assumption is that students not fitting the traditional mold (i.e., white and middle-class students with good test scores) must justify their place on campus some other way, lest they be considered free riders undeserving of the benefits of an elite education. in reality, these students in many cases have done more with fewer resources, and they may well be more “deserving” than their more privileged peers who simply used the tools in front of them to reach the same destination. some would argue that fact alone should warrant greater admission of underserved populations to elite institutions. regardless, diversity is not a “talent” and should not be considered as such. such a framing, however well-intentioned, treads precariously close to dehumanizing applicants. such practices center the growth of white students and reduce others to mere stock characters along the road of that student’s enlightenment; rather, these nonwhite students should be at the center of their own stories and viewed as fellow travelers on the road to enlightenment. 151 see generally prichep, supra at 132; paul, supra at 132. if schools invested even half the resources in fostering diversity that they invest in maintaining the appearance that they do so, perhaps there would be little need for papers like this one. 152 courteau, supra note 148. see also keith meatto, still separate, still unequal: teaching about school segregation and educational inequality, n.y. times (may 2, 2019), https://www.nytimes.com/2019/05/02/learning/lesson-plans/still-separate-still-unequalteaching-about-school-segregation-and-educational-inequality.html; will stancil, school segregation is not a myth, the atlantic (march 14, 2018), https://www.theatlantic.com/education/archive/2018/03/school-segregation-is-not-amyth/555614/; gloria j. browne-marshall, busing ended 20 years ago. today our schools are segregated once again, time (sept. 11, 2019, 8:12 am), https://time.com/5673555/busing-school-segregation/; erica frankenberg, what school segregation looks like in the us today, in 4 charts, the conversation (july 19, 2019, 7:35 am), https://theconversation.com/what-school-segregation-looks-like-in-the-us-today-in-4charts-120061. 1056 colum. j. race & l. [vol. 14:1023 grown up in socioeconomically or racially diverse neighborhoods, so many middleand upper-class college freshmen have their first substantive interactions with low-income and non-white persons on a college campus.153 the onus—at times implicit, at times explicit—is constantly on minority students to be representatives of the racial or affinity groups to which they belong. voluntarily joining the black student union is one thing; being asked during or after a class discussion to explain how systemic racism has specifically affected you is another matter. the push for this pre-packaged diversity often results in black students feeling like caricatures, two-dimensional guides whose purpose is to educate their affluent white peers in their journey to enlightenment. it is not hyperbole to say that, in many higher education institutions, white growth comes at the expense of black pain. moreover, diverse students are not compensated for this involuntary labor, and they must grapple with these incidents in addition to their other responsibilities as college students. many black students struggle to adjust to their new normal, and this difficulty can manifest as lower grades, decreased motivation and extracurricular involvement, and a host of other symptoms.154 the very experiences and difficulties these students overcame to gain admittance to these institutions all too often serve as a source of cultural vertigo during interactions with more privileged peers.155 the subject matter of their essays—the stories that have made them the exceptional candidates they are—may prove less intelligible to privileged classmates, resulting in a feeling of whiplash or otherness when these differences surface.156 when poc students are reduced to the adversities they have overcome, their humanity is stripped away. the supreme court has shown some concern for this stereotyping argument. in discussing “serious problems of justice connected with the idea of preference itself,” the majority in bakke noted that “preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.”157 that is, racial preferences in admissions carry the implication that the beneficiaries of these policies are, on the whole, less 153 see e.g., patrick sharkey, rich neighborhood, poor neighborhood: how segregation threatens social mobility, brookings (dec. 5, 2013), https://www.brookings.edu/blog/social-mobility-memos/2013/12/05/rich-neighborhood-poorneighborhood-how-segregation-threatens-social-mobility/ [https://perma.cc/me6j-ktx9]; richard rothstein, modern segregation, econ. pol’y inst. 3 (march 6, 2014), https://www.epi.org/publication/modern-segregation/ [https://perma.cc/qr99-gqfx] (arguing that “the racial segregation of schools has been intensifying because the segregation of neighborhoods has been intensifying”). 154 thorne, supra note 147. 155 these issues may be exacerbated at institutions like harvard and at selective liberal arts colleges like trinity college, where students—especially low-income students of color—may struggle to adjust to the culture of wealth and privilege into which their rich white classmates were born. see generally tough, supra note 34. 156 the fictional frank gallagher put it thusly: “i can’t think of a better use of tokenism than to promote diversity.” shameless, season 8, episode 4 at 14:20 (showtime nov. 26, 2017) (story arc involving a black child serving as a diversity admit in a cosmopolitan, liberal prep school in chicago). 157 bakke at 438 u.s. at 298 (referencing defunis v. odegaard, 416 u.s. 312, 416 u.s. 343 (1974) (douglas, j., dissenting)). 2024] defanging diversity 1057 qualified than those admitted through other means.158 when admittances of non-white students to elite universities carry the implication of being due in large part to the benevolence of high-minded admissions committees, even the most liberal white students that populate college campuses may find it hard to fight their biases and presuppositions. the ongoing failure to more accurately define and apply the diversity rationale furthers this misunderstanding. similarly, the ways in which race and class (the latter not being a legally protected status) interact also illuminates some of the diversity rationale’s shortcomings. one need look no further than the lack of socioeconomic diversity at schools like harvard, a well-documented fact that harvard itself seems to recognize, to illustrate this point.159 while harvard’s classes in recent years have become more racially diverse, income diversity has remained elusive.160 that is, elite schools like harvard provide an academic playground in which the many-hued children of doctors and lawyers can commingle; the perspective of, say, a teacher’s or a plumber’s child—of any color—will be in shorter supply. while nonwhite elites surely still bring a unique perspective to these campuses,161 it is not hard to imagine the ways in which their viewpoints converge with those of their white peers.162 indeed, the most privileged members of any 158 id. furthermore, the court said that “transitory considerations” of which groups should be given preference were subject to the political process and inconsistent application, foreclosing the idea that race-based preferences in admissions could be used to correct for past societal discrimination. 159 see, e.g., marina n. bolotnikova, harvard’s economic diversity problem, harvard magazine (jan. 19, 2017), https://www.harvardmagazine.com/2017/01/lowincome-studentsharvard#:~:text=harvard%20college%20has%20almost%20as,in%20the%20top%2020%20 percent [https://perma.cc/8et6-qzuf] (noting that, in recent years, more than half of harvard students come from the top 10% of the income distribution in the united states and that harvard had “almost as many students from the nation’s top 0.1 percent highest-income families as from the bottom 20 percent”); the upshot, some colleges have more students from the top 1 percent than the bottom 60. find yours., n.y. times (jan. 18, 2017) https://www.nytimes.com/interactive/2017/01/18/upshot/some-colleges-have-more-studentsfrom-the-top-1-percent-than-the-bottom-60.html [https://perma.cc/q45y-by89] (visualizing results of 2017 raj chetty study on income mobility in american colleges and universities, showing that the median family income of a harvard student is $168,800 and 67% of students come from the top 20 percent of the income distribution); max larkin, harvard has become more racially diverse, but most of its students are still really rich, wbur news (october 24, 2018), https://www.wbur.org/news/2018/10/24/harvard-diverse-wealth [https://perma.cc/plx8-49mw] (2018 report on the sffa case and on harvard’s lack of socioeconomic diversity). 160 larkin, supra note 159 (noting that harvard’s 2018 class was its “most diverse” up to that point but that this description applies to race, not socioeconomic status or class, as harvard continues to lag behind other schools in diversifying its student body along socioeconomic lines by admitting poorer students). 161 though, again, one must consider whether “non-white” includes biracial (in this context, half-black students with one white parent) who are disproportionately represented at elite schools relative to their percentage of the population. 162 this is why the disproportionate representation of mixed-race and immigrant students presents a missed opportunity to have a more robust diversity of viewpoints and experiences represented on elite campuses. native black students, who are more likely to come from a lower socioeconomic stratum than other types of black students, provide meaningful diversity in that they can speak to, for example, the interaction of poverty and race—a phenomenon that other types of black students may not have experienced. without these perspectives, white and other students on elite campuses are receiving a much 1058 colum. j. race & l. [vol. 14:1023 group—even a marginalized one—are likely to have at least some commonalities with the elites of the majority group.163 and does this limited type of diversity feed into the “critical mass” justification of diverse students that the court blessed in grutter?164 at present, colleges cannot say that they are educating a “representative group of future leaders” due to the growing exclusion of native black americans from their campuses.165 professor gates summarizes: “if [affirmative action is] about getting [b]lack faces at harvard, then you’re doing fine. if it’s about making up for 200 to 500 years of slavery in this country and its aftermath, then you’re not doing well.”166 he continues: “and if it’s about having diversity that includes africanamericans from the south or from inner-city high schools, then you’re not doing well, either.”167 anthony w. marx, a former president of amherst college, similarly noted that the exclusion of black students with predominantly american roots deprives campuses of “voices that are particular to being african-american, with all the historical disadvantages that that entails.”168 the times article closes with a harvard student recalling that the school discouraged him and his classmates from narrower view of the lived realities of non-wealthy black americans, depriving them of a more multifaceted and pluralistic education that the court blessed in bakke. as onwuachiwillig writes, “insofar as firstand second-generation blac[k] [students] and mixed-race students tend to be of a more privileged socioeconomic and educational class, the disproportionate percentage of them on elite college campuses may paint a distorted view of [b]lack achievement and advantage to many of the future leaders of the world.” onwuachiwillig, supra note 124, at 1185. onwuachi-willig later states that “[w]ithout exposure to the diverse ideas and viewpoints that may stem from legacy blac[k] [students] in the classroom and beyond, cross-racial and cultural understanding and exchange is diminished on campus, thus lessening the promotion of better learning outcomes.” id. at 1213. 163 consider the words of j. harvie wilkinson iii in 1979, describing the challenging integration processes in virginia and north carolina in the mid-twentieth century: “the token [b]lack people that whites first encountered would be elite members of the race, carefully selected by white pupil-placement boards from those [b]lac[k] [students] courageous and determined enough to apply to white schools in the first place. thus, favorable first impressions would be formed; integration would brightly begin.” j. harvie wilkinson iii, from brown to bakke: the supreme court and school integration: 1954-1978 at 86 (oxford university press, 1979). wilkinson ultimately concluded that this rationale was “insulting,” but the description of the black people leading the charge for school desegregation in the 1950s and 60s hardly differs from the black people most likely to be found at elite schools today; in fact, many of today’s non-immigrant black elites are the descendants of those “courageous and determined” few who integrated white schools and benefitted from their credentialing. 164 grutter, 539 u.s. at 340. the court in that case found a compelling interest in diversity and in admitting a “critical mass” of diverse students such that these students feel comfortable expressing different viewpoints, debunking stereotypes, and facilitating a robust exchange of ideas. recall that the court in bakke did not limit diversity to race. bakke, 438 u.s. at 315 (“petitioner’s special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity” (emphasis in original)). 165 onwuachi-willig, supra note 124, at 1214. 166 rimer & arenson, supra note 114. 167 id. thomas chatterton williams, in discussing his evolving opinion of race-based affirmative action, has expressed similar opinions: “i don’t know what it means to say that [b]lack people in this country have been enslaved and then suffered through decades of jim crow and were redlined out of wealth, but we’re going to accept this nigerian daughter of professionals to harvard, and that’ll check the ‘[b]lack’ box.” the weeds, on biracial identity (with thomas chatterton williams), vox, at 36:31-36:51 (oct. 2020), https://open.spotify.com/episode/3oziwn7jdf4b3ic5hsyrud?si=81ff654d84474f08. 168 rimer & arenson, supra note 114. 2024] defanging diversity 1059 collecting data on the backgrounds of their black peers. the reasons for harvard’s alleged interference are not clear.169 it is unfair to place students of color, irrespective of background, in situations in which they are expected to represent their group—that is, to perform their race—for the consumption of their white peers. all students should expect to be free to enjoy the benefits of the education they receive; they should not be forced to do the additional unpaid labor of educating their peers on the respective communities to which they belong. if not, schools will be in danger of perpetuating a kind of “enlightened minstrelsy” in which students of color are admitted to elite schools only to perform their trauma under the guise of “class participation” or “dialogue” solely for the edification of white children. schools valuing diversity must ensure that their students are more than their backgrounds and that all students are able to take advantage of the immense resources that higher education can provide. if not, schools risk perpetuating a perverse reality in which “[i]nstitutions of higher learning favor grievance without the aggrieved; they want to hear the song of the marginalized without doing anything to ensure more of the marginalized ascend to the university’s gilded platforms to sing it.”170 v. a mutilated meritocracy: failed solutions to the diversity rationale’s shortcomings the next two subsections lay out potential “solutions” to the problems posed by the diversity rationale before explaining the underlying phenomena that make those solutions unviable. the following subsections are not intended to survey all possible solutions to issues inherent in the diversity rationale; rather, they highlight frameworks that might, under more ideal circumstances, have provided a path forward. a. path a: more diversity the first and perhaps most obvious solution to the diversity problem is simply to admit more diverse applicants. increasing the number of black and brown students on campuses would surely not have a chilling effect on the conversations that diversity is designed to foster. if students feel that they have a robust, supportive community, they are more inclined to share their individual experiences with a wider audience, as they feel less like a token or representative of their entire group. however, if schools are aiming only to maintain the aforementioned “critical mass” of diverse students, they are unlikely to see this approach as viable. that is, they have enough “diversity” and may not be keen on altering the formula. the trial court noted that sffa’s modeling of various 169 id. it is also curious, considering the centrality of data analytics to modern admissions programs (and the general push for checking as many diversity boxes as possible in a given class), that schools do not seem to track information such as the ethnic breakdown of their black students. 170 jason england, why was it so easy for jessica krug to fool everyone?, chron. higher educ. (october 2, 2020), https://www.chronicle.com/article/why-was-it-so-easy-forjessica-krug-to-fooleveryone?emailconfirmed=true&supportsignup=true&supportforgotpassword=true&ema il=daniellkees%40gmail.com&success=true&code=success&bc_nonce=zn65vp98hc9up6dt7q oq2&cid=gen_sign_in. 1060 colum. j. race & l. [vol. 14:1023 race-neutral alternatives incurred “significant costs” to harvard.171 for example, the modeling suggested that giving less weight to aldcs and more to students from lower socioeconomic backgrounds might lead to an increased number of incoming harvard students indicating an interest in fields such as engineering, a change that would alter the composition of the incoming classes and “would pose administrative and staffing challenges.”172 the sffa trial court does not investigate whether harvard, with its $50-plus billion endowment in fiscal year 2021,173 could accommodate such changes in pursuit of diversity, but it does conclude that harvard demonstrated “that there are no workable and available raceneutral alternatives…that would allow it to achieve an adequately diverse student body while still perpetuating its standards for academic and other measures of excellence.”174 in presenting the findings of several committees that harvard convened to study race-neutral alternatives in admissions, the appellate court notes that one committee report found “that harvard already devotes significant resources to recruitment efforts [for racially and socioeconomically diverse applicants] and that expanding them further would not increase diversity. [the report] said that a more racially diverse applicant pool is itself not helpful.”175 expanding the recruitment pool further would simply add more students unlikely to be admitted, according to the report, and might even discourage younger students from applying in the future.176 the appellate court seemed to take harvard’s various claims at face value, though there is reason to question whether harvard’s current recruitment efforts actually square with its proffered justifications. while schools like harvard constantly tout their efforts to increase recruitment of minority applicants, research suggests these efforts may be cosmetic. in a working paper that uses admissions data made public in the sffa case, three economists—including peter arcidiacono, the aforementioned sffa expert—argue that harvard recruits students differently depending on their race and in a way that ultimately harms black applicants.177 black students are encouraged to apply to harvard 171 students for fair admissions, inc. v. president & fellows of harv. coll., 397 f.supp.3d 126, 182 (d. mass. 2019). 172 id. 173 harvard univ., https://www.harvard.edu/about/endowment/ [https://perma.cc/tp69-qtcn] (last visited may 16, 2024). 174 students for fair admissions, inc. v. president & fellows of harv. coll., 397 f.supp.3d at 183. 175 students for fair admissions, inc. v. president & fellows of harv. coll., 980 f.3d 157, 176 (1st cir. 2020). 176 id. 177 peter arcidiacono et al., recruit to reject? harvard and african american applicants, nat’l. bureau econ. rsch. (november 2019), https://www.nber.org/papers/w26456 (relying on harvard admissions data unsealed in the sffa case to argue “that harvard encourages applications from many students who effectively have no chance of being admitted, and that this is particularly true for african americans”). for additional reporting on this paper, see anemona hartocollis, that recruitment letter from harvard probably doesn’t mean much, n.y. times (nov. 29, 2019), https://www.nytimes.com/2019/11/29/us/harvard-admissions-recruit-letter.html (outlining the “recruit-to-deny” strategies used by harvard and other selective schools to boost the number of diverse applicants, even if such applicants have a virtually nonexistent chance of admission). 2024] defanging diversity 1061 despite having lower standardized test scores than their white and asian peers, according to the report.178 this discrepancy might prove less problematic if harvard’s efforts resulted in greater numbers of black students actually enrolling in the fall, but the study’s authors found that, despite “soaring” numbers of black applicants to harvard in recent years, the share of admitted black students remained stagnant.179 the authors speculated that harvard may have been trying to balance out sharp disparities in admissions rates across racial groups by encouraging more black students to apply, which would have the effect of “downplay[ing] the magnitude of race-based preferences” and avoiding more lawsuits.180 at trial, harvard acknowledged that the lower score cutoff was instituted to account for economic disadvantage, as black and hispanic students had less opportunity to prepare well for standardized tests. what remains unexplained, however, is why, in light of these efforts, the share of black students at harvard and its peer schools has stagnated in the past thirty-plus years. according to analysis by the new york times, black and hispanic students are less represented today at top colleges than they were over thirty years ago.181 schools like harvard are noted to perform especially poorly in this regard, with the times noting that “black students [in and around 2017] ma[d]e up nine percent of the freshmen at ivy league schools but fifteen percent of college-age americans, roughly the same gap as in 1980.”182 despite the fact that much of the supreme court’s most significant affirmative action jurisprudence stems from cases brought against top schools (e.g., university of michigan, uc davis, harvard), these same schools, after vigorously defending the educational benefits of diversity as intrinsic to their mission and to their very existence, do little to actually capitalize on their court wins and fail to meaningfully increase the diversity represented on their campuses. the arcidiacono paper’s findings bring into question whether harvard and its peer schools’ recruitment practices amount to a “cynical enterprise” in which students are led to believe they are competitive for schools that would never admit them, serving only as admissions cannon fodder to pad the numbers.183 despite yearly national headlines portraying underprivileged youth—often black youth—winning admission to a 178 in fact, almost half of the students who qualified for a recruiting letter were members of underrepresented minority groups. arcidiacono, supra note 177. 179 id. 180 id. 181 jeremy ashkenas et al., even with affirmative action, blacks and hispanics are more underrepresented at top colleges than 35 years ago, n.y. times (august 24, 2017), https://www.nytimes.com/interactive/2017/08/24/us/affirmativeaction.html#:~:text=even%20after%20decades%20of%20affirmative,is%20virtually%20unc hanged%20since%201980 [https://perma.cc/x8vc-d7gq] (showing in 2017 that, even accounting for the supposed effects of affirmative action policies at the nation’s colleges and universities, black and hispanic students remain underrepresented relative to their portion of the u.s. college-age population, this underrepresentation being most pronounced at ivy league and other elite schools). 182 id. the times continues: “at all eight schools, white enrollment declined as asian enrollment increased. in recent years, the growth of asian enrollment has slowed at some schools, and some asian-american students say they are being held to a higher standard,” linking there to a profile about the sffa case. 183 hartocollis, supra note 177. 1062 colum. j. race & l. [vol. 14:1023 smorgasbord of prestigious schools, these stories are equal parts laudable and curated.184 the reality is that, as things stand now, the vast majority of black teenagers applying to these schools will not get in, even to schools that asked them to apply. of course, this study offers only one view, and more research on this topic is warranted. however, the fact that harvard, despite its supposedly more aggressive recruitment efforts, chose not to actually admit more black students, while proclaiming that it wanted to admit more black students, raises questions about the school’s justifications for its admissions scheme. b. path b: greater socioeconomic weighting of course, no consideration of solutions to race-based affirmative action is complete without a discussion of socioeconomics.185 with words such as “class consciousness” re-entering the american zeitgeist, and with the economic forecasts for all but the wealthiest americans looking ever more grim,186 the concept of class—a broad term often used in america to encompass socioeconomic, cultural, political, racial, and other affiliations— has reemerged as an uber-salient topic, a lens through which any discussion, even of the most marginalized groups, must be viewed. a common refrain when listing alternatives to race-based preferences, consideration of an applicant’s socioeconomic background makes sense for numerous reasons. for one, socioeconomics strongly correlates to race in this country. if you are black, you are far likelier to be born into poverty than if you are white.187 beyond that, one’s financial resources (or lack thereof) can loom large in the creation of one’s identity, 184 see, e.g., dominique hobdy, black teen accepted into all 8 ivy league colleges, essence (last updated oct. 27, 2020), https://www.essence.com/news/black-teen-acceptedall-8-ivy-league-colleges/ [https://perma.cc/cv5c-thcs] (presenting the story of kwasi enin, who in 2014 earned admittance to all the ivies); abby jackson, this girl is the 2nd student in her public high school to get into all 8 ivy league schools, bus. insider (april 5, 2016, 9:13 pm), https://www.businessinsider.com/augusta-uwamanzu-nna-was-acceptedinto-all-8-ivy-league-schools-2016-4 [https://perma.cc/w72j-pfus] (augusta uwamanzunna, accepted in 2016); and cnn newsource, south florida teen accepted to all 8 ivy league schools, wptv (last updated june 14, 2022, 12:53 pm), https://www.wptv.com/news/education/south-florida-teen-accepted-to-all-8-ivy-leagueschools [https://perma.cc/4w5y-kwr2] (ashley adirika, accepted in 2022). notably, reporting suggests all of these students appear to be the children of black immigrants. 185 for the purposes of this paper, socioeconomic status can be considered synonymous with classand income-based considerations except where otherwise noted. 186 see paul constant, the american middle class used to signify economic security. that's now quickly becoming a luxury only the wealthiest can afford, bus. insider (dec. 25, 2021, 8:00 am), https://www.businessinsider.com/american-middle-class-no-longersignifies-economic-security-2021-12 [https://perma.cc/7g2t-79tp] (describing the unsustainable growing economic inequality of the past several decades and concluding that “[b]y draining the middle class of wealth and consolidating that security to an ever-shrinking group of wealthy elites, america is hobbling its capacity for economic growth”). 187 see, e.g., michael b. sauter, faces of poverty: what racial, social groups are more likely to experience it?, usa today (last updated october 10, 2018, 9:07 am), https://www.usatoday.com/story/money/economy/2018/10/10/faces-poverty-social-racialfactors/37977173/ [https://perma.cc/t4m8-z37k] (“black americans are more than twice as likely as whit[e] [americans] or asian americans to live in poverty”); and diana elliott, two american experiences: the racial divide of poverty, urb. inst. (july 21, 2016), https://www.urban.org/urban-wire/two-american-experiences-racial-divide-poverty (“...a [b]lack child in 2014 is still three times more likely to be in poverty than a white child.”). 2024] defanging diversity 1063 not unlike race.188 indeed, the desire to raise one’s socioeconomic status may be a principal driver for many students in applying to college. greater weighting of applicants’ socioeconomic background would meaningfully expand the benefits of diversity in higher education. elites are segregated from the rest of the population by education, occupation, and housing, to name a few factors. the bakke court seemed to recognize this fact when it listed—along with more traditional metrics such as work experience, leadership potential, or maturity—“the ability to communicate with the poor” as a unique qualification potentially warranting admission to an elite university.189 to follow the court’s logic here, it is not entirely clear that the wealthy scion of a black harvard alumnus would have any more ease than a similarly privileged white student when striking up conversation with the janitor who cleans their dormitory. however, a working-class student of any ethnicity from pittsburgh might be expected (rightly or wrongly) to converse with a non-elite more easily. whatever merit may or may not lie in this type of thinking, there is surely value in expanding diversity beyond the confines of race.190 after all, low-income students—few in number they may be—have been known to “significantly outperform[]” their wealthier peers on elite campuses.191 returning to the trinity college example, at trinity, “the sixyear graduation rate for pell-eligible students…was 92 percent, compared with 76 percent for the rest of the student body.”192 in this way, there are contexts in which low-income students—often students of color193—outdo their more affluent peers (though this trend does not hold for the majority 188 while not an immutable characteristic, the socioeconomic stratum into which one is born is typically “fixed” and beyond a child’s control until they enter the workforce and/or begin generating their own income (typically in one’s late teens or early twenties). of course, one’s parents can make choices that cause a family to move up or down the rungs of the financial ladder. as income mobility in this country stagnates, however, increased attention should be paid to just how “static” one’s socioeconomic status can be. 189 bakke, 438 u.s. at 317. 190 all of this is not to say that privileged non-white students do not encounter difficulties upon arrival to campus; however, due to their backgrounds, they may be more familiar with the pitfalls of navigating elite spaces and therefore better able to protect themselves. an entire paper could be written—and surely has been—outlining the myriad ways in which the lives and outcomes of wealthy whites differ from those of wealthy black people. see, e.g., raj chetty et al., race and economic opportunity in the united states: an intergenerational perspective, equal. of opportunity project (mar. 2018), http://www.equality-of-opportunity.org/documents/ (finding that black men born into the 75 percentile of the income distribution end their lives, on average, 12 percentiles below white men born into similarly wealthy families); and dylan matthews, the massive new study on race and economic mobility in america, explained, vox (march 21, 2018, 7:30 am), https://www.vox.com/policy-and-politics/2018/3/21/17139300/economic-mobility-study-raceblack-white-women-men-incarceration-income-chetty-hendren-jones-porter (for general discussion and summary of chetty’s findings). rather, the purpose of this section is to show the need for expanding the base of permissible admissions tips or preferences to ensure that the diversity achieved on college campuses more fully represents the immense diversity of this country. 191 tough, supra note 34. 192 id. 193 unless otherwise indicated, the phrase “student(s) of color” in this writing is meant to distinguish asian american students from other racial and ethnic minorities such as black and hispanic students. 1064 colum. j. race & l. [vol. 14:1023 of less selective schools).194 despite facing a culture of privilege that pervades campuses like trinity (or, one can imagine, harvard), these students overcame these challenges to excel in an environment that would justify their presence on the nebulous and potentially duplicitous ground of “diversity.” however, weighting socioeconomic factors more heavily, taken alone, will not solve the diversity problem. sffa’s simulations that eliminated aldcand ldc-related tips while increasing tips for economically disadvantaged applicants showed that harvard could significantly increase socioeconomic diversity and the number of black and hispanic students in its classes “only if it abandoned all preferences for [ldcs], and implemented a sizable tip based on economic and geographic indicators of disadvantage.”195 one such simulation produced a class in which forty-nine percent of students were from an economically disadvantaged background—contrasted against the twelve percent of students meeting that criteria in harvard’s 2019 class.196 however, these simulations also showed a fifty threeto seventy one-point drop in harvard’s average sat scores and a related drop in the profile ratings across admitted students, outcomes the trial court suggests are untenable.197 harvard’s own race-neutral proposals encountered similar obstacles in tweaking socioeconomic factors. one harvard-commissioned report found that increased outreach to schools or organizations serving applicants of modest means would be insufficient and would result in an “incrementally small” number of admitted students that would otherwise not have applied.198 nor would increasing financial aid meaningfully add to diversity, as seventy percent of black and sixty percent of hispanic families already qualified for zero parental contribution under harvard’s financial aid program.199 moreover, harvard’s previous expansions of financial aid were shown not to significantly increase the number of black and hispanic applicants or admits.200 beyond the reasons proffered above, however, there remains an additional roadblock to successful implementation of a class-based affirmative action scheme: rich people know how to hide their money. for example, dozens of parents in a chicago suburb were found to have transferred legal guardianship of their kids over to friends and relatives, at which point their kids declared financial independence to qualify for a 194 see, e.g., michael t. nietzel, new report shows large gaps in college progress based on whether students attend highor low-income high schools, forbes (oct. 8, 2019, 06:00 am), https://www.forbes.com/sites/michaeltnietzel/2019/10/08/new-reportshows-large-gaps-in-college-progress-depending-on-whether-students-attend-highor-lowincome-high-schools/?sh=722b9acc2c13 [https://perma.cc/rr89-yuby] (finding that “[o]nce enrolled, 89% of the higher-income high-school graduates continued for a second year of college, compared to 79% of those from low-income high schools.”). 195 students for fair admissions, inc., 397 f.supp.3d at 182. 196 id. 197 id. 198 students for fair admissions, inc., 980 f.3d at 177. 199 id. 200 id. 2024] defanging diversity 1065 bevy of tuition aid and scholarships.201 of course, those wealthy chicago families—many of whom had kids in expensive prep schools—are arguably the group least in need of additional financial aid, but, like their varsity blues counterparts, they are also in the best position to take advantage of loopholes that allow for this sort of duplicitous behavior.202 it is not even clear why wealthy families need to game the system, as schools roll out the proverbial red carpet to admit their children, showering them with aid that comes at the direct expense of lower-income students. for example, research from the think tank new america shows that over the course of almost two decades, more than half of public universities sampled have doubled their spending on “merit-based” aid, a type of non-need-based financial aid that largely targets wealthier students and their families.203 these funds often come from the same pot as need-based aid, meaning that increases in so-called “merit” aid proportionately decrease the aid that would go to qualified poorer applicants.204 this nearly $32 billion in meritbased aid represents about $2 of every $5 going to students that the government would consider non-needy—that is, students able to afford college without financial aid.205 c. blood at the root: structural issues reducing diversity’s effectiveness one major reason the above problems remain so intractable—and the diversity rationale comparatively impotent—is that no institution wants to tackle the root causes of inequality in american society. these inequities directly influence the makeup of any given school’s applicant pool and the relative qualifications of that applicant pool. some students are born with privileges that make higher education a forgone conclusion, regardless of their talent or appetite for learning. others are born into more challenging circumstances that make the road to higher education a less 201 while this reporting was local, the authors suggested that this could be a nationwide practice. jodi s. cohen & melissa sanchez, parents are giving up custody of their kids to get need-based college financial aid, propublica (july 29, 2019), https://www.propublica.org/article/university-of-illinois-financial-aid-fafsa-parentsguardianship-children-students# [https://perma.cc/9peb-5kup] (reporting on the financial loophole that allowed wealthy suburbanites to secure greater need-based financial aid for their students). for additional reporting on this story, see annie nova, parents exploit this legal loophole to get their kids more need-based college financial aid, cnbc (july 30, 2019), https://www.cnbc.com/2019/07/30/parents-exploit-legal-loophole-to-get-their-kidsmore-college-aid.html [https://perma.cc/e6qd-dgx4] (supplementing the propublica reporting and providing additional commentary on the potential legal ramifications for persons involved in the scheme). 202 cohen & sanchez, supra note 201. 203 stephen burd, crisis point: how enrollment management and the merit-aid arms race are derailing public higher education, new america (february 13, 2020), https://www.newamerica.org/education-policy/reports/crisis-point-how-enrollmentmanagement-and-merit-aid-arms-race-are-destroying-public-higher-education/ [https://perma.cc/u4ff-4hc9] (examining the merit aid “arms race” taking place among public universities that are providing so-called merit scholarships to students from the upper rungs of the income distribution in the hopes that those students matriculate, as they ultimately pay more in tuition than less wealthy students). see also martin kurzweil & josh wyner, rich kids are eating up the financial aid pot, n.y. times (june 16, 2020), https://www.nytimes.com/2020/06/16/opinion/coronavirus-college-rich-kids.html (referencing the new america study’s findings to call for congressional action to enable schools to coordinate on setting merit aid and thus rein in spending). 204 kurzweil & wyner, supra note 203. 205 burd, supra note 203, at 36. 1066 colum. j. race & l. [vol. 14:1023 straightforward one. a comprehensive examination of the ways in which various phenomena affect one’s college preparedness and competitiveness in the applicant pool is beyond the scope of this article. that said, it behooves us to better understand some of the problems that hampered the effectiveness of the diversity rationale from the outset. 1. school segregation as justice breyer noted over a decade ago in parents involved, “resegregation is on the rise” in america’s public schools.206 in fact, students of color—black students, in particular—attend schools that are about as segregated as they were in the 1960s and 1970s.207 in the 20152016 school year, more than half of american schoolchildren were in racially concentrated districts, with the nonwhite districts receiving about $2,200 less per student on average than predominantly white districts.208 one report found that school districts serving mostly students of color received $23 billion less in funding than mostly white school districts with the same number of students in 2016.209 this funding disparity can manifest in numerous ways from older, out-of-date textbooks to a lack of computer and internet access.210 this dearth of resources impacts a child’s ability progress academically, and it can create large “gaps” in a student’s preparation for college and career, gaps that wealthier students will not have. students in majority minority segregated schools are already operating at a deficit due to other factors outside the classroom, but the lack of access to quality resources at school only serves to push them further behind their well-resourced peers. relatedly, black children are more than twice as likely as white children to attend high-poverty schools (schools in which fifty-one percent or more of students are eligible for free or reduced-price lunch).211 sixty percent of black students attend high-poverty schools with a high share of students of color, compared with less than nine percent of white students.212 some attribute this concentration to the reagan justice department’s abandonment of busing as a desegregation remedy, which 206 parents involved in cmty. sch. v. seattle sch. dist. no. 1, 551 u.s. 701, 861 (2007). 207 will mcgrew, u.s. school segregation in the 21st century: causes, consequences, and solutions, wash. ctr. for equitable growth (oct. 15, 2019), https://equitablegrowth.org/research-paper/u-s-school-segregation-in-the-21stcentury/?longform=true [https://perma.cc/5t8k-dc5a]. 208 edbuild, $23 billion (february 2019), at 4, https://edbuild.org/content/23billion ca. 209 id. for additional reporting, see sarah mervosh, how much wealthier are white school districts than nonwhite ones? $23 billion, report says, n.y. times (feb. 27, 2019), https://www.nytimes.com/2019/02/27/education/school-districts-funding-whiteminorities.html (supplementing the edbuild reporting and highlighting especially inequitable school districts such as those in new jersey and arizona). 210 mervosh, supra note 209 (“differences in funding translate to the classroom, where underfunded communities often use older, worn textbooks and have less access to computers, said francesca lópez, associate dean of the college of education at the university of arizona.”). 211 emma garcía, schools are still segregated, and black children are paying a price, econ. pol’y inst. (feb. 12, 2020), at 2, https://www.epi.org/publication/schools-arestill-segregated-and-black-children-are-paying-a-price/. 212 id. at 3. https://www.nytimes.com/2019/02/27/education/school-districts-funding-white-minorities.html 2024] defanging diversity 1067 led to a confluence of racial and socioeconomic stratification in american cities.213 almost twenty-five percent of white students attend schools where most of their classmates are white and not poor—compared to about three percent of black students.214 in fact, white students have less exposure to non-white students than any other group of students.215 some estimates indicate that the number of segregated schools has doubled in the past two decades, with the percentage of black students in segregated schools growing very rapidly from fifty-nine to seventy-one percent.216 the northeast has overtaken the south in the proportion of segregated schools, and the phenomenon is no longer confined to southern and urban regions.217 in addition, school closures are about three times more common for segregated schools.218 charter schools further complicate things, as they allow students (and associated per pupil expenditures) to travel to other schools, creating what one author describes as “islands” within larger districts, depriving resource-strapped public schools of even more funds, and potentially contributing to further segregation.219 described by one researcher as a “major and intensifying problem,” racial segregation in u.s. schools can only lead to “serious educational, social, and civic problems” that justice breyer warned of in parents involved.220 the costs of attending a segregated school are many, including “reduced academic achievement, increased exposure to the criminal justice system, and significantly worsened professional and educational outcomes.”221 this article need not supply an exhaustive treatment of these woes, but it is worth elucidating some of the more subtle costs of segregated schooling that can prove just as devastating as the above. for example, the department of justice noted that “schools serving the most [b]lack and latino students are 1.5 times more likely to employ teachers who are newest to the profession” with these teachers often being “less effective than their more experienced” counterparts.222 also, schools serving mostly minority students are less likely to offer advanced placement (ap) and gifted courses—with one in five black students attending a high school that did not offer ap courses in the 2011-2012 school year.223 213 frankenberg, supra note 152. 214 garcía, supra note 211, at 3. 215 frankenberg, supra note 152. 216 stancil, supra note 152. more recent research supports these figures, as an analysis of national center for education statistics’ national assessment of educational progress (naep) data from a february 2020 report revealed that seven in ten black children (69.2%) attend majority minority schools. see garcía, supra note 211, at 2. 217 frankenberg, supra note 152. 218 stancil, supra note 152. 219 id. 220 id. (presenting the author’s findings on school segregation trends and arguing that racial segregation is on the rise in the united states, despite the work of other scholars who argue that such alarmism is unwarranted because this perceived trend is really just the racial diversification of american schools). see parents involved in cmty. sch. v. seattle sch. dist. no. 1, 551 u.s. 701, 862 (2007). 221 stancil, supra note 152. 222 u.s. dept. of education office for civil rights, “dear colleague letter: resource comparability” (oct 1, 2014), at 4, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-resourcecomp-201410.pdf. 223 id. at 3. https://www.theatlantic.com/education/archive/2018/03/school-segregation-is-not-a-myth/555614/ 1068 colum. j. race & l. [vol. 14:1023 moreover, teachers in high schools serving mostly black and hispanic students were paid, on average, $1,913 less than teachers within the same district working at schools with the lowest black and hispanic population.224 two thousand dollars is no small sum, but when one considers the chronic underpayment of teachers, that number proves dire.225 for these and other reasons, it is no wonder that many minority students are unprepared for college—let alone for entry into an elite one. the paucity of resources in many of the nation’s public schools all but ensure that far too many students of color—and especially black students—are utterly ill-equipped to thrive at even moderately selective schools. 2. housing segregation controlling for factors such as education, income, geography, and marital status, nonwhite households—especially black ones—are still less likely to own their homes when compared to white households.226 for example, in 2019, only forty-one percent of black households owned their own homes, while more than seventy-three percent of white ones did.227 college-educated black people are less likely to own their homes in comparison to white americans who never finished high school.228 and, black americans have about one-tenth the wealth of white americans.229 the above problems were created and exacerbated by numerous policies at all levels of american government such as race-based zoning, red lining, and the systematic exclusion of black people from federal 224 id. at 5. 225 see, e.g., thomas c. frohlich, yes, teachers are underpaid. here's how much high school teachers are underpaid in each state, usa today (september 29, 2020), https://www.usatoday.com/story/money/2020/09/29/states-with-the-most-underpaidteachers/42699495/ [https://perma.cc/nw42-9gkc] (noting, for example, that the average public school teacher in the united states made almost $30,000 less than the average occupation requiring a college degree) and tala hadavi, 2020 has shone a light on the importance of good teachers, but many are paid less than a living wage in the u.s., cnbc (december 11, 2020), https://www.cnbc.com/2020/12/11/why-teachers-salaries-are-so-low-inthe-us.html [https://perma.cc/nmy8-5ud9] (noting that, in parts of the country, teachers live below the family living wage and up to a quarter of teachers leave the profession each year). for additional reading, see katie reilly, exactly how teachers came to be so underpaid in america, time (sept. 18, 2018), https://time.com/longform/teaching-inamerica/ [https://perma.cc/h86z-4hu9] (reporting on the large pay gap between teachers and other similar professions and highlighting legal and policy developments that have contributed to lower teacher pay). 226 danyelle solomon et al., systemic inequality: displacement, exclusion, and segregation, center for american progress (aug. 7, 2019), at 7, https://www.americanprogress.org/article/systemic-inequality-displacement-exclusionsegregation/ [https://perma.cc/b4cp-sgkn]. 227 solomon et al., supra note 226. see also u.s. census bureau, quarterly residential vacancies and homeownership, first quarter 2024 (2024), https://www.census.gov/housing/hvs/files/currenthvspress.pdf [https://perma.cc/w699aw85] (providing updated statistics). 228 solomon et al., supra note 226, at 8. 229 angela hanks et al., systematic inequality: how america’s structural racism helped create the black-white wealth gap, ctr. for am. progress (feb. 21, 2018), at 2, https://www.americanprogress.org/article/systematic-inequality/ [https://perma.cc/kst8xrqu]. https://www.americanprogress.org/article/systemic-inequality-displacement-exclusion-segregation/ https://www.americanprogress.org/article/systemic-inequality-displacement-exclusion-segregation/ 2024] defanging diversity 1069 homeownership programs.230 federal home loan programs allowed white families to build and transfer wealth through generations, but they excluded black applicants, trapping them geographically and financially and eliminating any chance of upward mobility.231 so-called “blockbusting” and contract buying practices were additional methods that predatory real estate professionals used to legally and systematically strip wealth from black families.232 black people were also denied access to tools such as mortgage refinancing and federal underwriting.233 moreover, residential segregation was made worse by other social and political forces, like white flight and gerrymandering.234 all of this is to say nothing of the well-documented effects of laws like the home owners’ loan act, national housing act, and the servicemen’s readjustment act (the “gi bill”) on the black community.235 in addition to the decades of wealth-building opportunity these laws ripped away from black families, the descendants of those same families would be exposed to other predatory practices like those around the subprime loan market of the early 2000s.236 moreover, black people continue to face discrimination in housing, with forty-five percent of african americans saying they have experienced discrimination when trying to rent or buy a home, compared with only five percent of whites.237 another recent study found that homes in black neighborhoods were undervalued by an average of $48,000 due to racial bias, which translates to $156 billion in losses nationwide.238 policies such as single-family zoning—the intellectual descendant of race-based zoning—continue to perpetuate stark racial segregation across the country. single-family zoning typically restricts the placing of structures like apartment buildings and multifamily units in certain neighborhoods or districts, meaning that only persons who can afford single-family homes can live in those areas.239 because white families had greater access to federal home loan programs and higher incomes, singlefamily zoning allowed for rapid resegregation of america’s towns and 230 solomon et al., supra note 226. 231 id.; see also, classroom segregation: history and current impact on student education, amer. univ. sch. of educ. (aug. 19, 2020), https://soeonline.american.edu/blog/classroom-segregation [https://perma.cc/y8lv-l8qu]. 232 solomon et al., supra note 226, at 9. 233 id. at 6. 234 stancil, supra note 152 (describing attempts by some white neighborhoods and cities to “secede” from larger black or integrated districts to form all-white districts, moves often aided by state legislators). 235 solomon et al., supra note 226. 236 id. 237 harvard t.h. chan sch. of pub. health et. al., discrimination in america: final summary (jan. 2018), at 11, https://cdn1.sph.harvard.edu/wpcontent/uploads/sites/94/2018/01/npr-rwjf-hsph-discrimination-final-summary.pdf [https://perma.cc/pfq4-ctuz]. 238 andre m. perry et al., the devaluation of assets in black neighborhoods: the case of residential property, brookings (nov. 27, 2018), at 3, https://www.brookings.edu/research/devaluation-of-assets-in-black-neighborhoods/ [https://perma.cc/m5ya-2q2w]. 239 solomon et al., supra note 226, at 11. https://www.americanprogress.org/article/systemic-inequality-displacement-exclusion-segregation/ https://www.americanprogress.org/article/systemic-inequality-displacement-exclusion-segregation/ https://www.americanprogress.org/article/systemic-inequality-displacement-exclusion-segregation/ https://www.americanprogress.org/article/systemic-inequality-displacement-exclusion-segregation/ 1070 colum. j. race & l. [vol. 14:1023 cities.240 wealthier areas also had greater tax bases to support public goods, and these areas often appreciated in value—all while areas with higher concentrations of black people were zoned for commercial and industrial use, further depressing property values (which decimated schools) and reducing access to public goods like transportation, grocery stores, and child care facilities while increasing exposure to environmental hazards like waste facilities that were often built closer to apartments and multifamily complexes.241 because of these realities, black communities tend to be poorer than white ones and continue to struggle against racist policies against their social and economic interests. all of these harmful policies converge in one particularly insidious way. most schools are at some level “local” schools because they serve the students of a particular neighborhood, district, or city. while public schools do receive some funds from their respective states, much of their budgets come from local property taxes levied on residents; unsurprisingly, that means that schools in poor areas serving poor students are more likely to be underfunded—that is, poor.242 conversely, wealthier zip codes often pay more in property taxes, resulting in better funded schools that can more easily meet the needs of their students. this fact also means, however, that as america becomes more economically stratified, so, too, do its schools. the interplay of race and class outlined above ensures that many poor neighborhoods are, in significant part, “black” neighborhoods and vice versa. similarly, low-performing and under-resourced schools are often “black” schools. america’s tiered housing system creates a tiered school system that reinforces a racial caste system. the confluence of the raceand class-based exclusion undergirding residential segregation is a bipartisan phenomenon.243 the lack of reparative or redistributive measures on behalf of state or federal governments suggests that there exists little political will to reverse these trends. this inaction is hardly surprising when, as the above illustrates, the vast majority of the segregation in the united states results not from individual actors but from state-sanctioned policies designed to relegate black people to a second-class status. still, in light of the supreme court’s souring on the diversity rationale, a decision that was justified at some level under the idea that america has “progressed” racially, the above begs 240 id. 241 id. 242 cory turner et al., college board drops its 'adversity score' for each student after backlash, npr (april 18, 2016), https://www.npr.org/2016/04/18/474256366/whyamericas-schools-have-a-money-problem [https://perma.cc/8kfl-t44w] (examining funding disparities across america’s schools and noting that many schools face funding issues due to their reliance on local property taxes, which can vary from district to district because of large differences in property values). 243 see, e.g., zoned out: examining the impact of exclusionary zoning on people, resources, and opportunity before the subcomm. on hous. cmty. dev. and ins. of the h. comm. on fin. serv., 117th cong. 6-7 (2021) (statement of richard kahlenberg, senior fellow and director of k-12 equity at the century foundation), https://democratsfinancialservices.house.gov/uploadedfiles/hhrg-117-ba04-wstate-kahlenbergr20211015.pdf [https://perma.cc/52k9-v92k] (noting that the most exclusionary zoning policies are not promoted in communities with the highest levels of racial intolerance but that progressive areas tend to enact the most damaging legislation, possibly due more to a disdain for the uneducated than for minorities, specifically). 2024] defanging diversity 1071 the question of how black students could ever be expected to compete when the cards are so heavily stacked against them. 3. test preparation while access to quality, well-funded, and integrated schools and neighborhoods is vital to student outcomes, the importance of test preparation in the college admissions process cannot be understated. few dispute that test scores remain hugely consequential in admissions. most colleges require that applicants take the scholastic aptitude test (a set of subject area exams collectively termed the “sats”) and/or the american college testing (act) exam. these tests loom large in one’s application process, as they are designed to evaluate college preparedness. applicants, especially to elite schools, spend months—years, even—preparing to take the standardized tests.244 this preparation ranges from school-sponsored and independent test prep courses to expensive private tutors. the tests themselves have been shown to accurately predict how well a student is likely to do in their first year in college but not beyond.245 performance on tests like the sat more closely tracks factors like familial wealth than intellectual ability or even college preparedness. for example, a wharton study demonstrated that sat and act scores are more strongly correlated with family income than high school rank or gpa.246 as the report summarized, “[m]easures of student ability typically used for college admissions implicitly reflect differences in family income across students.”247 similarly, a student with a parent that holds a graduate 244 sam becker, during test-optional college admissions, exam-prep companies still thrived, bbc (april 17, 2024), https://www.bbc.com/worklife/article/20240416-testoptional-college-admissions-exam-prep-companies [https://perma.cc/9nm9-mjqb] (describing the booming test preparation industry in the united states and the test preparation measures families took even during “test-optional” admissions cycles at selective universities). these efforts are in addition to more traditional resume-padding activities like volunteering and community engagement, and even these activities advantage the rich, who have social capital that will allow their children to undertake ambitious service projects or obtain impressive fellowships even before college. 245 see, e.g., fairtest, sat i: a faulty instrument for predicting college success (aug. 20, 2007), https://fairtest.org/sat-i-faulty-instrument-predicting-collegesuccess/#:~:text=what%20is%20the%20sat%20i,for%20placement%20or%20advising%20 purposes [https://perma.cc/vua7-vqvg] (“the sat i is designed to predict first-year college grades – it is not validated to predict grades beyond the freshman year, graduation rates, pursuit of a graduate degree, or for placement or advising purposes.”). see also scott jaschik, faulty predictions?, inside higher ed (january 25, 2016), https://www.insidehighered.com/news/2016/01/26/new-research-suggests-sat-under-oroverpredicts-first-year-grades-hundreds-thousands [https://perma.cc/a9ge-6xzf] (citing various failures in the predictive ability of the sats, especially for distinct groups such as women, black people, and latino test takers). 246 jason sockin, is income implicit in measures of student ability?, the wharton sch. of the univ. of pa. (sept. 28, 2021), https://budgetmodel.wharton.upenn.edu/issues/2021/9/28/is-income-implicit-in-measuresof-studentability#:~:text=sat%20math%20and%20act%20scores,ranging%20from%200.06%20to%2 00.10 [https://perma.cc/qgd4-dhab]. this is not a new phenomenon, as reporting from almost a decade ago touts similar findings. see, e.g., zachary a. goldfarb, these four charts show how the sat favors rich, educated families, the washington post (march 5, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/03/05/these-four-charts-showhow-the-sat-favors-the-rich-educated-families/ [https://perma.cc/6vhr-evut]. 247 sockin, supra note 246. 1072 colum. j. race & l. [vol. 14:1023 degree scores, on average, 300 points higher on their sats than a student with a parent that only has a high school diploma.248 these educationand income-related score gaps seem to be widening.249 in light of this information, the persistent standardized test score gap between highand low-income students should come as no surprise. moreover, those findings help to explain why white americans, some asian americans, and students who took the psat (the pre-sat test) tend to outscore other groups; it is largely a matter of test prep resources and familial wealth.250 if extensive test prep is not enough to boost a student’s score, wealthy families have other tools in their arsenal: so-called “504 designations” that are typically provided to students with anxiety or adhd or physical disabilities and allow for accommodations like extra time and private testing spaces.251 white students receive such designations at a disproportionate rate in new york’s high-stakes entrance exam for its most selective public schools.252 specifically, white students are twice as likely as black and hispanic students and ten times as likely as asian students to receive a 504 designation, according to research conducted by the new york times.253 in total, forty-two percent of 504 designations from 2016 to 2018 had gone to white students.254 assuming that white people are not predisposed to adhd or breaking an arm (the types of conditions that might warrant extra time on a test), these numbers are notable.255 248 goldfarb, supra note 246. 249 andre m. perry, students need more than an sat adversity score, they need a boost in wealth, brookings (may 17, 2019), https://www.brookings.edu/blog/theavenue/2019/05/17/students-need-more-than-an-sat-adversity-score-they-need-a-boost-inwealth/ [https://perma.cc/2sbh-dkkt]. 250 it is also worth noting that most research and media outlets that report on achievement gaps of this sort do not distinguish within ethnic groups. that is, high test scores may very well be concentrated in wealthier east asians like chinese, japanese, and korean americans while groups like cambodian americans or hmong americans may test less well overall. see jason ng et al., southeast asian american achievement gaps through many factors, aapi data (oct. 11, 2017), https://aapidata.com/narrative/blog/se-aaachievement-gaps/ [https://perma.cc/yt8x-yh6w] (compiling research and data highlighting achievement gaps between certain southeast asian groups and other asians, including wealth and educational attainment). 251 abigail johnson hess, rich students get better sat scores—here’s why, cnbc (oct. 3, 2019), https://www.cnbc.com/2019/10/03/rich-students-get-better-sat-scores-hereswhy.html [https://perma.cc/bx3w-pra4]. parents in the varsity blues scandal were encouraged to take advantage of such accommodations. that is, they lied about their children having learning disabilities to help secure a spot at their favored colleges. 252 kevin quealy & eliza shapiro, some students get extra time for new york’s elite high school entrance exam. 42% are white., n.y. times (june 17, 2019), https://www.nytimes.com/interactive/2019/06/17/upshot/nyc-schools-shsat-504.html [https://perma.cc/ga32-cwq8]. 253 quealy & shapiro, supra note 252. 254 quealy & shapiro, supra note 252. 255 eliza shapiro, only 7 black students got into stuyvesant, n.y.’s most selective high school, out of 895 spots, n.y. times (march 18, 2019), https://www.nytimes.com/2019/03/18/nyregion/black-students-nyc-highschools.html?smid=url-share [https://perma.cc/h9ny-spsf] (reporting that, in 2019, black and hispanic students were just over ten percent of the population of new york city’s highly selective eight specialized high schools, despite making up nearly 70 percent of new york city’s public school population as a whole). this reporting also highlights the opposition from nyc’s asian community to then-mayor de blasio’s plan to diversify these specialized high schools via elimination of the entrance exam and other measures. https://www.nytimes.com/interactive/2019/06/17/upshot/nyc-schools-shsat-504.html https://www.nytimes.com/interactive/2019/06/17/upshot/nyc-schools-shsat-504.html 2024] defanging diversity 1073 more crucially, students with these extra-time provisions are about twice as likely to receive offers from specialized high schools.256 white students are overrepresented in nyc’s elite high schools, making up about a quarter of the students despite being only about fifteen percent of the entire public school population.257 the medical consultations required to get a 504 designation are often pricey, which helps to explain why so many more white students seem to get them.258 moreover, many of these students “attend some of [new york’s] most prestigious public middle schools,” a fact that supports the notion that “income, race, and privilege” can have an impact on testing, especially for high-stakes exams.259 still, that asian students, despite a tenfold accommodations advantage by white students, are the overwhelming majority at specialized high schools serves only to inflame the growing tension between often lowincome communities of asian immigrants and a well-resourced white bourgeoise. for now, proposals to overhaul the specialized high school admissions system have focused on the underperformance of black and hispanic students, with some asian groups arguing that they should not be penalized in admissions for the low performance of other groups.260 regardless of their utility or predictive power, standardized tests feature prominently in the road to college for most americans. the fierce competition for spots at the nation’s top colleges have led to a testing industrial complex in which well-resourced test takers have nearly insurmountable advantages over their less privileged peers. the increased social capital and access that wealthier americans enjoy in the education system will always make it such that only the most brilliant people of lesser means can keep up. in this way, president biden’s slip—on the 2020 campaign trail, he stated that “poor kids are just as bright and just as talented as white kids”261—may have been freudian, but it was not without truth.262 the central idea underlying his remark, that black and low 256 quealy & shapiro, supra note 252. tellingly, 504 extra-time testers outperform median test-takers overall. 257 quealy & shapiro, supra note 252. 258 id. white families are also simply more likely to be aware that such accommodations exist, whereas minority students in low-performing school districts may not have quality test prep resources or personnel like guidance counselors who can make them aware of such tools and guide them in applying for the designation. 259 id. not unlike the family wealth-sat score correlation, it appears that wealth strongly tracks whether one requests and receives a 504 designation. see id. (finding that, over a three-year timespan, students in a majority white and middle-class area of new york were almost five times as likely as students in other districts to have a 504 allowance and that, by comparison, a majority hispanic and low-income area had five or fewer students in total to receive such accommodations in the same time frame). 260 shapiro, supra note 255. then-mayor bill de blasio’s proposal to admit the top scorers from every middle school would reduce the presence of asian students—who now make up around 60% of students at specialized schools—by about half, increasing black enrollment by fivefold. the measure was unsuccessful. 261 he paused before adding “wealthy kids, [b]lack kids, asian kids.” matt stevens, joe biden says ‘poor kids’ are just as bright as ‘white kids’, n.y. times (aug. 9, 2019), https://www.nytimes.com/2019/08/09/us/politics/joe-biden-poor-kids.html [https://perma.cc/8nvc-jknw]. 262 stevens, supra note 261. for additional coverage, see david siders, biden:‘look, i misspoke’ about poor kids, politico (aug. 10, 2019), https://www.politico.com/story/2019/08/10/biden-poor-kids-bright-white-kids-1456296 https://www.nytimes.com/interactive/2019/06/17/upshot/nyc-schools-shsat-504.html https://www.nytimes.com/interactive/2019/06/17/upshot/nyc-schools-shsat-504.html https://www.nytimes.com/2019/08/09/us/politics/joe-biden-poor-kids.html 1074 colum. j. race & l. [vol. 14:1023 income students remain structurally disadvantaged relative to wealthier white students, is entirely correct. if the occasional gifted, low-income student of color is able to surmount the numerous obstacles before them and gain admittance to a selective school, that would be the exception that proves the rule. such occurrences are quirks of a skewed system, not evidence of its meritoriousness. vi.fixing diversity: making good on the promise of the diversity rationale specters of inequality haunt the admissions process from start to finish, creating a nightmarish maze in which some students, armed with the tools of wealth and privilege, clamor to marginally differentiate themselves in just the right way from their competitors, while other students do not even know where to begin and whose chances at elite credentialing will be summarily doomed should they make one wrong move. still, some proposals hold promise for improving outcomes and fostering genuine diversity in a post-sffa world. a. at first glance: preliminary proposals national testing bodies and college admissions offices have attempted various proposals to level the playing field. for example, the college board, which administers the sat exam, proposed (then promptly abandoned) a measure known as an “adversity score.”263 this metric, which was to be presented alongside an applicant’s subject area scores, was supposed to capture—that is, to rate—a test taker’s school and neighborhood environment, which, as detailed above, are strong proxies for wealth and privilege.264 while meant to capture hardships like crime and poverty that individual applicants might have had to overcome in their college admissions journey, the adversity score brought forth “a storm of criticism from parents and educators” supposedly irate at the idea of quantifying achievement in the face of hardship.265 the opponents of the adversity score seemed less concerned with finding an alternative way of capturing hardship among applicants, as it appears there were few, if any, serious proposals for replacement schemes. some observers have called for investing more federal dollars to narrow gaps in the social and economic resources that black and white families bring to the college-going process.266 earlier and greater focus in [https://perma.cc/fx35-4fgp] (biden stating that he meant to say “wealthy” in place of “white”). 263 anemona hartocollis, sat ‘adversity score’ is abandoned in wake of criticism, n.y. times (aug. 27, 2019), https://www.nytimes.com/2019/08/27/us/sat-adversity-scorecollege-board.html [https://perma.cc/r393-pgfp] (describing how the college board committed to still providing school admissions counselors and families with the information captured in the score, but claimed that it would no longer be summed up in a single number). see also bobby allyn, college board drops its 'adversity score' for each student after backlash, npr (aug. 27, 2019), https://www.npr.org/2019/08/27/754799550/college-boarddrops-its-adversity-score-for-each-student-after-backlash [https://perma.cc/5aft-sazy]. 264 hartocollis, supra note 263. 265 id. 266 phys.org, supra note 124 (discussing black immigrants’ higher likelihood of attending elite colleges and universities, citing the work of pamela bennett and amy lutz). 2024] defanging diversity 1075 public schools on college preparation, even as early as middle school, would help to ensure that students are better prepared for the admissions process.267 this preparation could range from providing greater information about college preparatory coursework to counseling on the numerous college options available to students.268 exposure to these preparedness tools is a key advantage that white and asian students have over black and brown students. they are aware of the need to prepare for these tests long before test day arrives. as anyone who has attended a low-income high school knows, resources are limited for students wishing to apply to colleges. and because guidance counselors are often over-worked and underpaid, getting students into colleges—let alone elite institutions—is often a lower priority than simply getting students to their high school graduation. because of this lack of attention and resources, even students who are aware of the steps in the college admissions process often must navigate them alone or with little support. assistance with filling out college applications and financial aid forms is needed to help students, many of whom are overwhelmed by the breadth of information requested on forms like the fafsa.269 this type of aid could be outsourced to third parties—for example, young lawyers and members of other elite professions that have learned to successfully navigate the bureaucracy that is college and post-grad admissions—who could help with preparation for college interviews or test prep itself.270 moreover, challenges inherent in the financial aspects of applying to college should not go unaddressed. for example, registration costs for tests like the sat or act can pose significant barriers to poor students, who may be intimidated at the prospect of applying for a fee waiver or worried that such a waiver may somehow negatively impact their admissions prospects. in addition, these registration fees preclude far too many students from re-taking the test to get a higher score, a barrier to entry that wealthy and middle-class students are likely not to face.271 all students, regardless of family income, should have equal opportunity to test or re-test. whether the solution is eliminating registration costs altogether (an unlikely occurrence given the profitability of the testing industrial complex) or expanding access to fee waivers, little doubt exists that testing companies can do more to aid low-income and minority students in the process of taking these mandatory entrance exams. some proposals focus on what admissions offices can do. for example, one author called for more explicit attention to be given to black applicants’ “ancestral heritage” to distinguish between what they term for more on bennett and lutz’s work, see pamela bennett & amy lutz, how african american is the net black advantage?: differences in college enrollment among immigrant blacks, native blacks and whites., 82 socio. of educ., no. 1, 70 (2009), https://www.jstor.org/stable/40376038 (examining whether the higher likelihood of black high school graduates to attend college, net of differences in socioeconomic family background and academic performance, is more attributable to differences in the educational trajectories of native black people versus those of immigrant black people). 267 phys.org, supra note 124. 268 id. 269 phys.org, supra note 124. 270 id. 271 hess, supra note 251. https://phys.org/news/2009-08-immigrant-blacks-elite-colleges.html https://www.cnbc.com/2019/10/03/rich-students-get-better-sat-scores-heres-why.html 1076 colum. j. race & l. [vol. 14:1023 “legacy [b]lacks” (i.e., black people descended from enslaved people in america) and other black people (specifically, firstand second-generation black americans descended from african immigrants and mixed-race individuals) in the affirmative action context.272 this distinction, they argue, would foster intraracial diversity among black students, especially on elite campuses, and would satisfy affirmative action’s social justice undertones.273 such a proposal does not prove compelling to this author, largely because admissions offices are ill-equipped to vet an applicant’s ancestral heritage.274 no matter how meticulously designed a racial classification system might be, any institutionalized attempt to “measure” one’s race or to quantify it in anything but the broadest terms opens the door to rampant racial fraud as seen in countries like brazil. furthermore, a racial quantification scheme relies on one very large assumption: that colleges genuinely care about racial diversity. it is ambiguous where exactly these schools’ commitments lie in regard to diversity. as described above, despite their constant allusions to deeply held, deeply vague social justice commitments, selective colleges and universities have shown little interest in striving for anything beyond a semblance of diversity. schools should not be left to their own devices in matters related to quantifying an applicant’s race, lest a new admissions system even more contorted than the current one work to exclude an entirely new swath of applicants. moreover, even if national testing bodies and college admissions offices reconsider their approach to admissions, it is not clear that these changes would result in more equitable outcomes. persons with wealth and privilege will always find a way to advantage themselves and their children, even in processes designed to eliminate subjectivity.275 in general, wealth offers a means of superior preparation and other ways, both large and small, to “skip the line” ahead of potentially more talented individuals. 272 onwuachi-willig, supra note 124, at 1156. 273 id. at 1209-10. this paper largely eschews onwuachi-willig’s social justice justifications for affirmative action in college admissions because the supreme court already dismissed such considerations in bakke and because such arguments are likely to find little purchase given the current makeup of the court. 274 and perhaps, more fundamentally, “who can really say that a biracial student of mixed african-american and white ancestry or a [b]lack second generation, jamaicanamerican student is any less ‘[b]lack’ than a monoracial [b]lack student from mississippi who descends from plantation slaves in the united states?” id. at 1209. 275 this is not a uniquely american or even western phenomenon, as many east asian countries that are known for extremely high-stakes entrance exams have regular scandals around these important tests. see, e.g., charlie campbell, chinese students face up to 7 years in prison for cheating on college-entrance exams, time (june 8, 2016), https://time.com/4360968/china-gaokao-examination-university-entrance-cheating-jailprison/ [https://perma.cc/3eqj-g9wa] (describing the lengths taken to reduce widespread cheating on high-stakes chinese college entrance exams); ock hyun-ju, [feature] cho kuk scandal reignites debate on college admissions system, the korea herald (sept. 15, 2019), https://www.koreaherald.com/view.php?ud=20190915000144 [https://perma.cc/32pmm4ns] (describing public outcry following an admissions scandal implicating a high-profile member of the korean government and presenting commentary on so-called “loopholes” in korea’s college admissions system that, perhaps inadvertently, have come to advantage wealthy and well-connected people). as these examples show, any system that evaluates credentialing is open to being gamed by those with wealth and influence, persons who can effectively tailor their candidacy to whatever requirements are valued by colleges at the time—and should that fail, can find “back doors” into elite institutions. 2024] defanging diversity 1077 no matter the system of credentialing, people of means will always find a way to advantage their own. but our current system that “convert[s] wealth into merit”276 ensures that only the most egregious of these tactics are considered inappropriate, while expensive sat tutors and admissions consultants are considered fully above board—despite the fact that the use of such resources is often not publicized. to the extent education has become a “private good” and as long as “good parenting and good citizenship are in conflict” in our hyper-capitalistic and highly credentialed society, parents will continue to scramble to have their students master whatever form these admissions trials take.277 perhaps this hyper-competitive and deeply unequal reality is why all the courts that heard the sffa case largely ignored the roles of wealthdriven test preparation, application assistance, and specialized athletic recruitment in admissions.278 there is little discussion of, for example, the 276 guinier, supra note 127. 277 matthew stewart, the 9.9 percent is the new american aristocracy, the atlantic (june 2018), https://www.theatlantic.com/magazine/archive/2018/06/the-birth-ofa-new-americanaristocracy/559130/?fbclid=iwar3mfyweyyrfcpowit9d51s9dojv4m5grrundylms7hln6 wmjj4qqbzjstm. stewart humorously mused: “so go ahead and replace the sats with shuffleboard on the high seas, or whatever you want. who can doubt that we’d master that game, too? how quickly would we convince ourselves of our absolute entitlement to the riches that flow directly and tangibly from our shuffling talent? how soon before we perfected the art of raising shuffleboard wizards?” id. 278 indeed, this author was especially surprised to find evasion of these topics by justice thomas, a longtime critic of programs such as affirmative action. justice thomas has written extensively about the harm racial preferences wreak on unqualified black students, but he has said virtually nothing about the damage that legacy or athletic preferences can cause. for example, justice thomas dissented in grutter, opining about the inability of most black students to succeed at elite educational institutions: “the law school tantalizes unprepared students with the promise of a university of michigan degree and all of the opportunities it offers. these over-matched students take the bait, only to find that they cannot succeed in the cauldron of competition.” grutter, 539 u.s. at 372. thomas recognized that a “handful” of black students would still be admitted without race-based preferences. id. at 373. in grutter, thomas does allude to the questionable efficacy of entrance exams like the lsat in predicting student performance, but he does not seriously consider why black students score lower on the lsat. he does, however, correctly note that such racial performance disparities have not driven elite schools away from the use of standardized tests. grutter, 539 u.s. at 370. echoing the language of brown, justice thomas in grutter wrote that affirmative action stamps minority students with a “badge of inferiority” and may cause them to believe they are entitled to race-based preferences. grutter, 539 u.s. at 373. see also, brown v. bd. of educ. of topeka, shawnee cnty., kan., 347 u.s. 483, 494 (1954) (“brown i”), supplemented sub nom. brown v. bd. of educ. of topeka, kan., 349 u.s. 294 (1955) (“brown ii”) (“to separate [black schoolchildren] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”). curiously, though, justice thomas does not consider the psychological or sociological effects of practices like legacy admissions on student beneficiaries, arguing that, while problematic, “unseemly” legacy tips do not fall within the ambit of the equal protection clause. grutter, 539 u.s. at 368. setting aside the fact that thomas supplies no reasoning as to why the equal protection clause could not apply to legacy admissions, his brief reference to—then prompt abandonment of—the legacy matter is curious. should legacies not feel as if their spots are unearned? should not the exeter-educated legacy lacrosse player with subpar grades and marginal standardized test scores (despite an abundance of tutors) have reason to question his place at harvard? the stigma does not seem to attach in justice thomas’s mind. 1078 colum. j. race & l. [vol. 14:1023 role that expensive college admissions consultants play in helping students craft the perfect application packet—and the potential ethical pitfalls of such crafting, as these packets are supposed to represent the students themselves, not the machinations of well-compensated admissions wizards. it begs the question of what role standardized tests and other admissions requirements are really playing. that is, are exams like the sat really just a way to rubberstamp mediocre middleand upper-class students who might not fare as well in a more egalitarian and competitive evaluation system? whatever form the new sffa-imposed admissions regime ultimately takes will introduce uncertainty into an already fraught process for college applicants and their families, and there is no guarantee that it will be any better, more transparent, or more just. perhaps it would have been better to leave well enough alone, to let an imperfectly-cast caste system remain in the hopes that a few—and only a few—extraordinary students would be able to successfully navigate the labyrinth of admissions. the current system surely captured at least a few diamonds in the rough, students from disadvantaged backgrounds who beat the odds to matriculate to their ivy-covered dream schools. perhaps this system is better than nothing. after all, even a broken clock is right twice a day. while several of the above proposals are ambitious, none of them tackle the root causes of achievement and outcome gaps—at least not in a sufficiently comprehensive way. band-aid solutions like an adversity score do not solve the problems ailing society; they attempt to address a problem but not its roots. rather than “retrofitting test results around inequality” to level the playing field, society should provide “historically disenfranchised people opportunities to build wealth.”279 while such calls ring with the echo of “reparations” and are often met with strong resistance, there are avenues short of giving african americans (or other disenfranchised groups) money; that is, there are solutions that perhaps will be more palatable to the wider—whiter—american public. palatable is a relative term, however, as one of the most radical but comprehensive solutions to the wealth gap and other societal ills lies in a maneuver that this country has never managed to pull off in over two-and-a-half centuries: desegregation. b. the only way out: the role of desegregation in realizing the goals of diversity the supreme court’s pronouncement in brown v. board of education that racial segregation in american schools was unconstitutional was a landmark ruling, the legacy of which remains largely unrealized. numerous sources have documented the court’s retreat from the goals expressed in brown, and this absence of court-ordered enforcement has led to the resegregation of american schools and neighborhoods and continues to drive a gap—between rich and poor, black and white, haves and have-nots—that threatens to enshrine a rapidly resolidifying american caste system.280 with social unrest an ever 279 perry, supra note 249. 280 see, e.g., j. harvie wilkinson iii, from brown to bakke: the supreme court and school integration: 1954-1978 61 (1979) (noting that “[f]rom 1955 to 1968, https://www.brookings.edu/blog/the-avenue/2019/05/17/students-need-more-than-an-sat-adversity-score-they-need-a-boost-in-wealth/ 2024] defanging diversity 1079 increasing aspect of the national conversation, efforts to desegregate public spaces prove more vital than ever before, as people must come to understand one another—but such understanding cannot happen if people do not live, work, and learn in the same spaces. in this way, making good on the promise of brown is not only morally imperative; it may be essential to the survival of the american experiment. policies encouraging affordable housing are one major tool to desegregate communities, as the effects of those efforts will spread to schooling and education.281 making housing more accessible to low-income and minority communities will allow groups to move from high-poverty, resource-arid locales to more well-funded, resource-diverse areas that tend to have lower crime rates (which also has an impact on educational attainment).282 this requires putting an end to exclusionary zoning, which goes hand in hand with making housing more affordable. effectively shutting out large swaths of americans from economically prosperous areas perpetuates a socioeconomic and racial apartheid. it also further depresses outcomes across a wide range of areas including income, educational attainment, and life expectancy for those unable to live where they wish. relatedly, policies should address transportation needs, as lowincome persons, especially in urban areas, are more likely to have to rely on public transit due to not having a vehicle (or only having one to share within a single family).283 similarly, having more inclusive school district borders could bring major improvements to public school systems nationwide, as it helps to ensure that resources flow into all schools more equally, instead of having concentrations of highly funded schools in one area and underfunded ones in another.284 districts could be redrawn or consolidated to ensure that middleand upper-class students attend socioeconomically diverse schools, which would result in more money being funneled to these schools. in addition, entities like the department of justice should be further empowered to bring litigation against school districts that remain highly segregated.285 increased civil rights enforcement will help keep schools on track to meet desegregation goals and ensure that poor and minority students are not shuttled into low-performing schools where they will not receive an adequate education. within schools, more must be done to support gifted and talented programs—including expanding access to such programs, which should not necessarily be cabined to the smallest possible percentage of students, as talent exists across multiple vectors, such as math, science, art, and the court abandoned the field of public school desegregation”); mcgrew, supra note 207 (citing the decline in school segregation from the 1960s through 1980s followed by a stagnation and eventual resegregation of american schools). 281 mcgrew, supra note 207. 282 see, e.g., e. jason baron et al., public school funding, school quality, and adult crime (nat’l bureau of econ. rsch., working paper no. 29855, 2022), https://www.nber.org/papers/w29855 [https://perma.cc/q9b3-uslt] (finding that increased educational investment in public schools reduces adult crime rates). 283 amer. univ. sch. of educ., supra note 231. 284 id. see also, mervosh, supra note 209. 285 mcgrew, supra note 207. 1080 colum. j. race & l. [vol. 14:1023 music.286 adding specialized academic programs targeted toward differently gifted students would also encourage greater enrollment at some schools.287 in addition, more public funds should be channeled to early childhood education, which is widely recognized as the most critical stage of child development.288 the benefits of these investments are many. less segregated schools tend to produce better outcomes for students of color, especially black students. for example, one study showed that black children attending the same schools as white children perform much better on standardized math tests than black children in segregated schools.289 moreover, the gap between black and white student test scores is wider in high-poverty schools with a high share of students of color.290 desegregation also has positive implications for the economic mobility of black people.291 and, positive economic outcomes for minority students have been shown not to come at the expense of wealthier (usually whiter) students.292 in fact, desegregation fuels economic growth because it boosts capital, innovation, and productivity and also strengthens the social trust and interpersonal relationships necessary for smoothly functioning markets.293 segregation “foment[s] social distrust and…deteriorat[es] social capital in communities across the country.”294 this lack of social 286 central to this goal is expanding bilingual (especially spanish-language) education, via, for example, the so-called 50/50 program model, which helps ensure that gifted students are not left behind merely because they are english language learners. this model also provides immense benefits to the broader school population, as students learn a second language as part of their everyday curriculum. for more, see andrew warner, 4 benefits of dual-language immersion programs, u.s. news & world report (june 9, 2022), https://www.usnews.com/education/k12/articles/4-benefits-of-dual-languageimmersion-programs [https://perma.cc/b4h4-ndus] (listing several social, cultural, and intellectual benefits of dual-language programs in schools). 287 amer. univ. sch. of educ., supra note 231. 288 ages and stages of development, cal. dep’t of educ., https://www.cde.ca.gov/sp/cd/re/caqdevelopment.asp#:~:text=recent%20brain%20research %20indicates%20that,warm%2c%20loving%2c%20and%20responsive [https://perma.cc/2hlg-uhqq] (last visited may 25, 2024). (“recent brain research indicates that birth to age three are the most important years in a child’s development.”). children of color are disproportionately excluded from gifted and talented programs in many schools, and schools must reform the racial bias in identifying gifted students so that intellectually gifted children of color can be nurtured as much as white children. see also danielle dreilinger, why decades of trying to end racial segregation in gifted education haven’t worked, the hechinger report (oct. 14, 2020), https://hechingerreport.org/giftededucations-raceproblem/#:~:text=gifted%20education%20has%20racism%20in,more%20likely%20to%20be %20white [https://perma.cc/d9mr-3ann] (examining the issue of decades-long racial disparities in gifted education); teacher’s race affects gifted program selections, vanderbilt univ. rsch. news (jan. 18, 2016), https://news.vanderbilt.edu/2016/01/18/teachers-race-affects-gifted-program-selections/ [https://perma.cc/ema3-mymh] (summarizing research that found that “[a]mong elementary school students with high standardized test scores, [b]lack students are about half as likely as their white peers to be assigned to gifted programs in math and reading”). 289 garcía, supra note 211, at 3-4. 290 id. at 3. 291 mcgrew, supra note 207. 292 id. 293 id. 294 id. 2024] defanging diversity 1081 capital contributes to arbitrary discrimination and missed opportunities for economic exchange and innovation across the economy.295 that is, desegregation promotes economic efficiency.296 social boons, such as increased understanding among racial groups, will surely pay dividends down the line. gaining exposure to genuine diversity early in one’s life sets one up for success because one learns how to coexist with many types of persons and how to navigate a pluralistic world. moreover, the “badge of inferiority” arguments espoused by the brown court and by justice thomas would find less purchase in a world in which white students began to understand that their non-white peers are more than their racial or economic backgrounds. it is hard to argue that a faceless poc “took your spot” at your dream school when you have studied and worked alongside this person—and perhaps been bested by them on occasion—your whole life. indeed, this is a major benefit of integration; it allows people to see that talent exists everywhere. this understanding could help shape a more truly holistic view of “merit” in this country, perhaps even lowering the tenor of the admissions conversation in the years to come. this option, which could be stylized as “educational-investment-asreparations,” also avoids the common question of “reparations for whom?” that plagues these sorts of discussions. rather than the current debate, which treats a quality education as a private good to be divvied up amongst the disadvantaged who are clamoring like crabs in a bucket, desegregation “spreads the wealth.” the benefits of desegregation also accrue more widely than even a strictly socioeconomics-based approach; though both concepts implicate race and class, desegregation actually incorporates socioeconomic realities, making it a broader and potentially more effective framework. greater investment in america’s public schools works to the benefit of students, parents, citizens, and residents everywhere.297 texas’s practice of guaranteeing spots for the highest performing students at its public schools—the so-called “top ten percent plan” (the “plan”)—provides an excellent example of the multi-layered effects of desegregation.298 under the plan, all students in texas graduating in the top ten percent of their high school classes were guaranteed admission to an in-state public college or university, including the flagships. this schoolspecific eligibility standard was designed to improve college access for disadvantaged and minority students, who disproportionately attend lowperforming public high schools.299 because the plan pulled from all high 295 id. 296 id. 297 native black and immigrant communities alike would reap the benefits of better funded and higher performing schools. poor and middle-class white americans will also benefit from increased resources and greater contact with americans who are different from them. 298 the plan was implemented after the decision in hopwood v. texas, which effectively banned affirmative action in texas. for more, see hopwood v. state of tex., 78 f.3d 932 (5th cir. 1996), abrogated by grutter v. bollinger, 539 u.s. 306 (2003). 299 julie berry cullen et al., jockeying for position: strategic high school choice under texas’ top ten percent plan (nat’l bureau of econ. rsch., working paper no. 16663, 2011), https://www.nber.org/papers/w16663 [https://perma.cc/66my-pfhu]. 1082 colum. j. race & l. [vol. 14:1023 schools, even in the highly segregated texas public school system, this meant that a certain amount of black and brown students were guaranteed spots at some of the state’s top universities. the positive effect of the plan on the economic mobility of these students is not hard to imagine, as admittance to a school like the university of texas at austin can provide numerous opportunities for quality instruction and later for professional advancement. of course, the top ten percent plan also saw gamesmanship by well-resourced individuals. specifically, after the plan took effect, many wealthier and white students began transferring into lower-performing high schools in order to claim a spot in their new school’s top ten percent of students.300 the tournament aspect of the plan resulted in an increasing number of students choosing to attend comparatively undesirable neighborhood schools instead of more competitive magnet schools.301 this outcome somewhat undermined the plan’s goal of promoting racial diversity, but the authors found that this strategic school shifting did, in the short run, slightly reduce ability stratification across high schools.302 this ever-so-slight increase in peer quality at lower performing schools provides a glimmer of hope for what a more well-designed desegregation plan could achieve. while architects must be aware of potential gamesmanship, if, on balance, they are able to create a system that incentivizes wealthier, white students to attend the public schools closest to where they actually live, over time, there is little doubt that resources will flow into these schools. if overall school quality improves, even marginally, all students at that school are more likely to be competitive for state schools, regardless of whether they finish in the top ten percent of their class. one can easily imagine a student in, say, the top 300 id. at 2. 301 id. at 3. among the students with both motive and opportunity to make a strategic high school shift, as many as 25 percent chose to enroll in a different high school to improve their chances of cracking the top ten percent. id. at 3. the study’s authors found that “[t]hough minority students have greater strategic opportunities so are more likely to trade down [in school quality], the net effect of strategic behavior is to slightly increase the representation of white students in the top ten percent pool” (emphasis added). id. at 23. furthermore, “[b]oth white and minority students who trade down are relatively likely to displace minority students who otherwise would have placed in the top ten percent of their class.” id. at 23. because peer achievement and minority share of a school are highly negatively correlated, the authors viewed this phenomenon of gamesmanship as “almost an inevitable consequence” of strategizing in light of the plan. id. at 23. the authors concluded that the overall effect of strategic school choice was to slightly decrease the representation of minority students in the ten percent eligibility pool. id. 302 id. at 22-23. more recent research suggests that the top ten percent plan has led to virtually no increase in the number of public schools that feed into ut austin and texas a&m, though more work is needed to achieve meaningful and lasting change. however, the study also suggests that additional recruitment efforts, combined with a small amount of scholarship funds, notably increased the likelihood that an underrepresented high school would start sending students to a flagship. jill barshay, texas 10% policy didn’t expand number of high schools feeding students to top universities, the hechinger report (july 8, 2019), https://hechingerreport.org/texas-top-10-policy-didnt-expandnumber-of-high-schools-feeding-students-to-top-universities/ [https://perma.cc/r584-kzaa]. (presenting the work of kalena cortes and daniel klasik examining the impact of the top ten percent plan on matriculation of texas high school students to two of the state’s top flagship universities). 2024] defanging diversity 1083 thirty-five percent of their class at a mid-performing texas high school gaining admission to at least one institution in the ut system. while the effects of the ten percent plan do not present a fairytale ending to the thorny problem of how to equitably achieve diversity, they do show that something short of a panacea can be found, improving outcomes for students of color where such improvements are sorely needed. while not a long-term solution, the ten percent plan shows what arguably the barest form of desegregation—indeed, desegregation was not even the goal of the plan—can do. unfortunately, short of radical social and political change, it seems incremental change like that described above is the most feasible way forward. outright calls for rapid desegregation will face opposition from across the american political spectrum, but a tailored “x-percent plan”303 may be able to achieve the modest aim of pumping a few more resources into america’s neediest schools. even if some newer formulation of an x-percent plan somehow found purchase with american courts, however, that may not usher in radical change at elite colleges. it may be that most black and brown students remain effectively barred from entry into the nation’s “top” schools. it may be that—no matter their qualifications—these students simply do not have what elite schools are looking for in a student population and a potential alumni donor base. regardless, the above measures could help to close the racial achievement gap nationally and would result in greater numbers of minorities matriculating at flagship state schools that are far better pipelines to the middle class, anyway.304 finally making good on the promise of brown—or really, brown ii—will not solve all of america’s woes, educational or otherwise, but it will put the country on a clearer path to true equality and opportunity for all its residents. enshrining harmful policies and later dismantling them “with all deliberate speed” is a talent for which american courts and policymakers have shown exceptional aptitude.305 the diversity rationale 303 for example, california and florida have adopted similar plans. see statewide guarantee, univ. of cal., https://admission.universityofcalifornia.edu/admissionrequirements/freshman-requirements/california-residents/statewide-guarantee/ [https://perma.cc/3as6-k4m4] (last visited may 25, 2024) (outlining the university of california’s percentage plan) and the talented twenty program, fla. dep’t of educ., https://www.fldoe.org/schools/family-community/activities-programs/precollegiate/talented-twenty-program/ [https://perma.cc/eh9e-tfpu] (last visited may 25, 2024) (describing florida’s “talented twenty” program for students finishing in the top 20% of their high school graduating class). 304 see, e.g., the upshot, some colleges have more students from the top 1 percent than the bottom 60. find yours., n.y. times (jan. 18, 2017), https://www.nytimes.com/interactive/2017/01/18/upshot/some-colleges-have-more-studentsfrom-the-top-1-percent-than-the-bottom-60.html (describing the research of raj chetty on colleges and income mobility). chetty and his fellow researchers found that so-called “ivy plus” schools (the eight ivy league schools and similarly selective colleges) have the highest success rate, with almost 60% of students from the bottom income quintile reaching the top income quintile. however, certain less selective mid-tier universities have similar success rates with the key distinction that they admit far more low-income students. schools such as the city university of new york, california state, and university of texas systems often outperform schools like harvard or princeton in catapulting poorer students into the middle class and beyond. id. 305 brown v. bd. of educ. of topeka, kan., 349 u.s. 294, 301(1955). 1084 colum. j. race & l. [vol. 14:1023 was, at some level, a break from this age-old practice, and it provided the opportunity for these united states to, in the words of many from the harvard community, “live its values.”306 that opportunity remains elusive, but it is not beyond reach. the answer to many of the problems inherent in the affirmative action debate have long rested right under brown’s nose. desegregation in housing, education, and more generally in american society, promises to bridge the gap that continues to divide this country and that has created and enforced a socioeconomically and racially stratified social order. genuine diversity, if fostered from the pristine corridors of the ivy league to the halls of local community colleges, promotes positive educational and economic outcomes for the benefit of all and at a cost to none. if this country can find the political and social will to make good on a promise that is not even a century old, the benefits will surely extend to ourselves and our progeny. vii. conclusion: a promise unfulfilled—final thoughts on the diversity rationale the sffa decision should be a surprise to few. courts were always reluctant to tackle diversity in a way that accounted for the realities of our world, and the days of such juridical trepidation were always numbered. even assuming the legitimacy of all of harvard’s justifications for its consideration of race in admissions, the lack of a clear, singular justification beyond the nebulous concept of “diversity” doomed affirmative action from the start. the throughline here is that a broader conception of diversity was needed at the outset. if the spirit of the diversity rationale is to survive, because the legal doctrine is now dead, it must expand beyond its narrow confines. diversity as a concept must be broadened to account for the pluralities of the modern age, and this liberalizing effort must extend to our notions of community, allowing us to finally desegregate our country. 306 pete buttigieg (@petebuttigieg), x (formerly twitter) (oct. 2, 2019, 12:42 pm), https://twitter.com/petebuttigieg/status/1179436467019505664?lang=en [https://perma.cc/8cxd-vfds] (then-presidential candidate pete buttigieg, on the one-year anniversary of the murder of journalist jamal khashoggi, noting that the lack of holding his murderers accountable represented a year of missed opportunities for this country to “live our values”); cnn politics, warren: we must be a country that lives our values, https://www.cnn.com/videos/politics/2019/07/31/elizabeth-warren-immigration-cnn-2020democratic-primary-debate.cnn [https://perma.cc/6cdu-m6hv] (then-presidential candidate elizabeth warren criticizing the trump administration’s border patrol policies and arguing that the united states “must be a country that every day lives our values”); cspan, user clip: george w bush asks us to live by our values, https://www.cspan.org/video/?c4872239/user-clip-george-bush-asks-live-values (president george w. bush, in a speech at a bush institute event, noting that to recover america’s identity and renew the country, “we only need to remember our values” and stating that “[t]he only way to pass along civic values is to first live up to them”); barack obama, president, u.s. of am., address at 2013 presidential inauguration ceremony (january 21, 2013), https://obamawhitehouse.archives.gov/the-press-office/2013/01/21/inaugural-addresspresident-barack-obama [https://perma.cc/r7et-pd4s] (president barack obama’s 2013 inaugural address in which he says that this “generation’s task [is] to make these words, these rights, these values of life and liberty and the pursuit of happiness real for every american”). 2024] defanging diversity 1085 though this writing eschews a formal proposal of a so-called “neodiversity rationale” in which one merely swaps the historically favored category of race for another equally amorphous category, it is clear that affirmative action defenders and sympathetic courts will have to grow ever more exacting in justifying race-based preferences in american life, as potential litigants are sure to look to sffa’s success and refine their assaults on whatever is left of affirmative action in educational settings and corporate america.307 harvard and its peers can avoid much of this coming headache by re-framing their stated admissions goals. on one hand, they can do the unglamorous work of truly diversifying their student body, making good on the lofty ideals espoused on their websites and in admissions brochures. on the other hand, a more explicit embrace of aldcs and the value they bring to campus coffers might sound less lofty and egalitarian, but it may be far more honest and, perhaps, more legally defensible. either schools will find a new way to achieve the campus diversity they presumptively value, or they will not. perhaps, in light of the high court’s decision, schools will simply wash their hands of the matter, saying they have done all they could to advance racial justice, silently grateful that they no longer have to employ such complicated admissions schemes to foster on-campus racial diversity. perhaps elite colleges and universities will more openly stress the financial incentives that play a much larger role in the process than advertised. who can say? the forces that led to the very need for the diversity rationale are not in the rear view. the sffa case is a watershed moment in this country’s long, sordid racial history. with each feeble defense of the diversity rationale written over the recent decades, the supreme court retreated further into a corner, continually shrinking the role of race-based considerations in higher education admissions. rather than continue this delicate jurisprudential waltz, the supreme court has now stopped the music. but silence brings opportunity. in this stillness, the vacuum wherein the word “diversity” is said in hushed whispers, stakeholders, particularly the students of this country, would be better served by an open conversation about the goals of universities, elite and otherwise, and the processes such institutions use to achieve those goals. a performative and thin endorsement of the value of “diversity” did not accomplish this aim. it never could. so, something more robust—and more honest—is needed. 307 see, e.g., nate raymond, affirmative action opponent drops case over law firm's diversity fellowship, reuters (oct. 11, 2023), https://www.reuters.com/legal/affirmative-action-opponent-drops-case-over-law-firmsdiversity-fellowship-2023-10-11/ (describing ed blum’s dropping cases that he launched after the sffa decision that were targeting u.s. law firms over their diversity programs). it is unclear how long this diversity détente will last. i. the diversity problem: introduction and brief recap of the legal proceedings a. defining diversity under scotus: from then to now ii. the many forms of affirmative action: mechanisms for achieving non-racial diversity in college admissions a. table setting: the meaning and scope of affirmative action in higher education 1. “elite” athletics: the role of athletic recruitment in admissions 2. early birds: the effects of early decision and merit aid on admissions iii. defining diversity: an analytical framework a. “come to brazil”: a brazilian case study and its lessons for the united states b. history lesson: a brief survey of black racial and ethnic identification c. state of play: modern fault lines in black self-identification d. quantification conundrum: diversity’s line-drawing problem iv. trauma porn and introspective elites: legal and social implications of the diversity rationale a. the politics of trauma: the “adversity” narrative v. a mutilated meritocracy: failed solutions to the diversity rationale’s shortcomings a. path a: more diversity b. path b: greater socioeconomic weighting c. blood at the root: structural issues reducing diversity’s effectiveness 1. school segregation 2. housing segregation 3. test preparation vi. fixing diversity: making good on the promise of the diversity rationale a. at first glance: preliminary proposals b. the only way out: the role of desegregation in realizing the goals of diversity vii. conclusion: a promise unfulfilled—final thoughts on the diversity rationale microsoft word maryam note publication final.docx columbia journal of race and law vol. 13 june 2023 no. 1 note aren’t i a woman deserving of justice? restructuring vawa’s funding structure to create racial and gender equity maryam asenuga* “because young black women . . . are depicted not as frightened, pregnant adolescents who are . . . abused by men . . . but as criminal defendants . . . it is virtually impossible for the mainstream public, their communities, or their potential advocates to understand their vulnerability or to respond accordingly.”1 this note analyzes the funding priorities of the violence against women act (vawa), and how the law’s egregious funding of prosecutors, enforcement agencies, officers, and courts directly impacts black female survivors of intimate partner violence (ipv). although vawa was passed in 1994 to serve as a federal remedy for women subjected to ipv, over 85% of current vawa’s funding supports law enforcement, prosecutors, and the overall criminal legal system. this directly harms black women due to this community’s historically negative relationship with the legal system. additionally, black women subjected to abuse are also uniquely impacted by vawa’s emphasis on punitive measures and enforcement due to their overrepresentation amongst ipv survivors. this note will advance the argument by investigating three grant programs under vawa. * j.d. candidate 2023, columbia law school. the author would like to thank professor daniel richman for his guidance and the staff of columbia journal of race and law for their meaningful editorial assistance. 1 beth e. richie, arrested justice: black women, violence, and america’s prison nation 7 (1st ed. 2012) (emphasis added) (finding that black women subjected to gendered violence face particular peril because race, gender, and culture are missing from the discussions surrounding punitive policies as a solution to gendered violence). 854 colum. j. race & l. [vol. 13:853 introduction ................................................................................................ 856 i. history and subsequent treatment of violence against women .... 860 a. the conditions that led to vawa’s enactment ...................... 860 1. historical climate and the battered women’s movement ............................................................................. 860 a. the effects of ipv on women were often ignored ....................................................................... 861 b. the battered women’s movement encouraged recognition of ipv and brought remedies for victims ....................................................................... 861 c. anti-ipv reformers shifted their focus to the criminal legal system to reduce ipv .................... 863 b. black women and the criminal legal system .......................... 864 1. slavery as the historical origins of the relationship between black women and the legal system and its effects ................................................................................... 864 2. punitive policies as causes of black women’s vilification by the legal system ......................................... 865 3. the discriminatory mythologies held by legal actors and officers about black women ........................................ 867 4. black women’s distrust of the criminal legal system .... 868 5. vawa endorsed a clear federal preference for a carceral response to ipv .................................................... 869 c. vawa’s funding structure, relevant agencies, and grant programs ...................................................................................... 870 1. vawa’s legislative history and purpose .......................... 870 2. vawa’s current funding structure and procedures ....... 871 3. the procedural mechanics of vawa’s grant programs ... 873 ii. examining the relationship between vawa’s grant programs and black female survivors .............................................................. 874 a. vawa’s stop grant program ................................................... 875 1. statutory purpose and procedural explanation of the stop grant program .......................................................... 875 2. stop contributes to harmful outcomes for black female victims and survivors ............................................ 876 a. the punitive consequences for black women who use self-defense in ipv disputes ................... 876 b. stop’s effects on the black community ................ 878 c. the outcomes of stop’s victim-centered services ...................................................................... 880 d. additional inefficiencies of the stop program ...... 881 e. the effect of criminalization on deterring abuse ......................................................................... 882 b. the funding differences between vawa’s improving criminal justice responses program and culturally specific services program ........................................................... 882 1. the disparate number of victims served between icjr and cssp .................................................................... 884 iii. the fiscal road to racial and gender equity .................................. 886 2023] aren’t i a woman deserving of justice 855 a. restructuring the current funding distributions of stop, icjr, and cssp is necessary to mitigate the inequities exacerbated by vawa ................................................................ 887 1. restructuring vawa’s funding priorities best serves the intent and purpose of vawa ........................... 887 2. congress is best suited to restructure vawa’s current funding structure ................................................. 888 3. potential difficulties that congress may face in announcing a restructured vawa .................................... 889 b. a legislative change should be reasonable within the context of vawa ......................................................................... 889 1. funding changes proposed for the stop program .......... 889 2. funding changes proposed for the icjr and cssp programs .............................................................................. 890 c. victim-centered services that could improve the status of black women subjected to abuse ........................................... 890 1. economic security programs to aid black women subjected to abuse ............................................................... 891 2. housing as a major provision to aid black female survivors .............................................................................. 892 iv. conclusion ........................................................................................... 892 856 colum. j. race & l. [vol. 13:853 introduction in 2009, tiffany wright, a black girl was shot in the head and killed while she waited at a high school bus stop.2 at the time, wright was eight months pregnant.3 the police told reporters that they believed the shooting arose from a domestic dispute between wright and her adoptive brother, royce mitchell.4 previously, wright had accused mitchell of raping her, which her foster mother reported to the department of social services and the police before wright’s death.5 despite the severity of these allegations and the wright’s age, investigators did not interview wright until a month after the initial report.6 the police did not meet with mitchell until the day of wright’s death, when mitchell was arrested and charged with statutory rape and taking indecent liberties with a minor.7 at mitchell’s bond hearing, the defense attorney vilified wright and diminished her credibility by focusing on the victim’s sexual history.8 ultimately, in 2021, the district attorney dropped mitchell’s rape charge.9 this is a result known all too well by black women.10 indeed, for black female victims and survivors11 who have experienced intimate partner violence (ipv),12 the criminal legal system either ignores the violence against this community13 or criminalizes black women for defending themselves against the violence that they have experienced.14 2 journalnow staff, dropped sex charges in dead teen's case upset police, winston-salem j., https://journalnow.com/dropped-sex-charges-in-dead-teens-case-upsetpolice/article_41db29b3-fb02-51d5-90fd-da1cf0dddd3a.html [https://perma.cc/c2rt-wn84] (last updated apr. 16, 2021). 3 id. 4 id. 5 id. 6 id. 7 id. 8 id. 9 id. 10 see generally michael pinard, race decriminalization and criminal legal system reform, 95 n.y.u. l. rev. 119, 131 (2020) (recognizing how the criminal legal system at “each stage of the system, from policing practices to the impact of criminal records, will continue to harm black……women…”). 11 this note will use the language of “victims and survivors” in reference to women, alive or deceased, subjected to abuse. also, while it is evident that intimate partner violence crosses all racial, social, economic, and political lines, this note focuses specifically on black women due to the unique relationship black women have historically shared with ipv and the criminal legal system, which receives the majority of vawa’s funding. this note uses black women loosely to refer to all women-identifying people of african descent. however, it is important reiterate that intimate partner violence affects all communities. the rate of violence against native women is 37.5%. similarly, 23.4% of latinx women and 41–60% of asian pacific island women have been subjected to intimate partner violence. 12 this note generally uses “intimate partner violence” or ipv to describe the phenomenon of domestic violence, sexual assault, dating violence, and stalking perpetrated by a current or former intimate partner or spouse. 13 see generally mario l. barnes, black women's stories and the criminal law: restating the power of narrative, 39 u.c. davis l. rev. 941, 968-980 (2006) (noting the criminal legal stories of black women who were ignored by prosecutors and other legal actors and were rendered “invisible”). 14 see kali nicole gross, african american women, mass incarceration, and the politics of protection, 102 j. am. hist. 25, 25 (2015) (discussing how racial and gender discrimination contributes to the disproportionate incarceration of black women who defend themselves against their abusers). 2023] aren’t i a woman deserving of justice 857 wright’s case illustrates a significant consequence black female survivors face in their interactions with the legal system—the lack of effective protection. individuals and activists are now proposing that resources aimed at reducing violence against women15 be shifted away from prosecutors and police officers because of the racial and gender inequities that the legal system exacerbates.16 one central area of focus for these activists is the violence against women act (vawa), which is the first federal law to classify ipv as a crime and establishes structural remedies for survivors.17 as vawa is currently up for its fourth reauthorization in congress and was approved by the house in march 2021,18 civil rights activists have criticized the law’s disproportionate funding of the criminal legal system.19 as the first federal law to sanction penalties for ipv,20 vawa reveals a close relationship with the criminal legal system.21 in reference to vawa’s substantial funding of law enforcement, prosecution, and incarceration to address ipv, leigh goodmark, an expert in domestic violence policies, stated, “for the last thirty years, the united states has relied primarily on one tool to combat intimate partner violence—the criminal legal system.”22 this note argues that a revised appropriations bill under vawa which shifts funding away from the legal system and to culturally-specific 15 this note focuses on ipv specifically against women because women have been found to be most at risk of victimization. women make up 85% of ipv victims. however, it is evident that intimate partner violence affects people of all genders, gender identities, and gender expressions. 16 see francesca willow, what is abolition feminism, what is carceral feminism & what could a world without prisons look like?, ethical unicorn (mar. 26, 2021), https://ethicalunicorn.com/2021/03/26/what-is-abolition-feminism-what-is-carceralfeminism-what-could-a-world-without-prisons-look-like/ [https://perma.cc/y34c-bre4] (discussing abolition feminism as an alternative to policing and prison systems to combat gender-based violence); see also leigh goodmark, the violence against women act is unlikely to reduce intimate partner violence – here’s why, the conversation (oct. 17, 2018) [hereinafter goodmark, violence against women act], https://theconversation.com/ the-violence-against-women-act-is-unlikely-to-reduce-intimate-partner-violence-heres-why103734 [https://perma.cc/l4ls-ccuk] (the author expresses that they “believe that [the violence against women act] still relies too heavily on the criminal system” and “doesn’t do enough to address the causes of intimate partner violence”). 17 id. 18 susan davis, house renews violence against women act, but senate hurdles remain, npr (mar. 17, 2021), https://www.npr.org/2021/03/17/977842441/house-renewsviolence-against-women-act-but-senate-hurdles-remain [https://perma.cc/e68r-5fvg]. 19 see leigh goodmark, reimagining vawa: why criminalization is a failed policy and what a non-carceral vawa could look like, 27 violence against women 84, 92 (2021) [hereinafter goodmark, reimagining vawa] (“for over 25 years, vawa has dedicated significant resources to criminalizing intimate partner violence—in essence, to encourage police and prosecutors to do things that were already required by law. that funding has not resulted in lower rates of intimate partner violence, has not deterred intimate partner violence, and has had serious consequences, both intended and unintended, for the people whose lives it has affected.”). 20 34 u.s.c. § 12291(a)(12). 21 see generally lisa n. sacco, the violence against women act (vawa): historical overview, funding, and reauthorization, cong. rsch. serv. 12 (2019) (“the fundamental goals of vawa are to prevent violent crime; respond to the needs of crime victims; learn more about crime; and change public attitudes through a collaborative effort by the criminal justice system.”). 22 leigh goodmark, decriminalizing domestic violence 1 (claire m. renzetti ed., 2018) [hereinafter goodmark, domestic violence]. 858 colum. j. race & l. [vol. 13:853 victim programs, economic and housing programs, is necessary to target the pressing needs of black female survivors. the ongoing congressional debates regarding vawa make now an opportune time to investigate vawa’s funding priorities and the effects its interventions have on black female survivors. vawa’s emphasis on enforcement is demonstrated by vawa’s two largest grant programs, the services, training, officers, and prosecutors grant program (stop) and the improving criminal justice responses program (icjr).23 this note will examine these two programs, in addition to providing an analysis of the culturally specific services program (cssp).24 this analysis will demonstrate that vawa harms black women because the law’s two largest grant programs strengthen the legal system that has criminalized black female survivors, and this enforcement focus is compounded by the inattention to the needs of black female survivors. who is vawa’s funding structure working for, and whom is it working against? black women are impacted by vawa’s focus on criminal enforcement because they make up a disproportionately high number of ipv victims.25 ipv disputes increased across the country during the covid-19 pandemic, “18% in san antonio, 22% in portland, ore.; and 10% in new york city”, but the ipv rates dramatically increased to 50% or higher for women of color.26 however, black women face 2.5 times the rate of violence of other women of color.27 ipv is one of the leading causes of death for black women ages fifteen to thirty-five.28 although black women make up only 7% of the general population, they account for 22% of ipvrelated homicides.29 additionally, 45% of black women have experienced ipv.30 these shocking statistics are partly due to the fact that black women’s intersectionality leaves them vulnerable to ipv.31 recognizing the 23 sacco, supra note 21, at 12 (an overview of the appropriations and set-asides for the stop and icjr programs that this note relies heavily on). 24 id. 25 see maya finoh & jasmine sankofa, the legal system has failed black girls, women, and non-binary survivors of violence, aclu (jan. 28, 2019), https://www.aclu.org/news/racial-justice/legal-system-has-failed-black-girls-women-and-non [https://perma.cc/sh7s-ddre] (explaining that “black girls, women, and non-binary people are hyper-vulnerable to abuse” including rape, homicide, and sexual and domestic violence). 26 jeffrey kluger, domestic violence is a pandemic within the covid-19 pandemic, time (feb 3. 2021), https://time.com/5928539/domestic-violence-covid-19/ [https://perma.cc/s6ez-5289]. 27 n. jamiyla chisholm, covid-19 creates added danger for women in homes with domestic violence, colorlines (mar. 27, 2020), https://colorlines.com/article/covid-19creates-added-danger-women-homes-domestic-violence/ [https://perma.cc/sxx6-cmme]. 28 feminista jones, why black women struggle more with domestic violence, time (sept. 10, 2014), https://time.com/3313343/ray-rice-black-women-domestic-violence/ [https://perma.cc/pt82-2a9u]. 29 id. 30 stephanie hargrove, intimate partner violence in the black community, the nat’l women ctr. on violence against women in the black cmty. (oct. 2018), https://ujimacommunity.org/wp-content/uploads/2018/12/intimate-partner-violence-ipvv9.4.pdf [https://perma.cc/s4su-egsc]. 31 see katherine hilson, the intersectionality of domestic abuse: law enforcement barriers black women face, crimrxiv (nov. 16, 2020), https://www.crimrxiv.com/ pub/05op0xl6/release/1?readingcollection=e3ec78b4 [https://perma.cc/8vbu-g3vz] 2023] aren’t i a woman deserving of justice 859 impact of intersectionality is helpful in understanding how the relationship between ipv and criminal legal enforcement creates harm to black women. coined by kimberlé crenshaw, intersectionality is an analytical framework for understanding how the interconnected nature of one’s identities creates overlapping and interdependent forms of discrimination.32 black women’s race, class, and gender combine to create compounding oppressions, which increase black women’s disproportionate exposure to ipv.33 black female survivors are then detrimentally affected by vawa’s governmental responses to ipv because they continue to perpetuate criminalization and disenfranchisement.34 for example, evidence has demonstrated that black female victims are prosecuted and incarcerated at higher rates when they decide to defend themselves during ipv disputes.35 this occurs because black women’s racial and gender identities have led to stereotypes that deem black women as violent aggressors who must be punished. it is imperative to analyze vawa’s current funding structure in a broader intersectional framework to create an approach that effectively prevents and reduces ipv. by investigating the interaction between vawa’s grant programs and black women, this note serves to create a path forward for an amended funding structure that effectively serves all women subjected to intimate partner violence. this intersectional approach will improve the law’s ability to prevent and reduce violence. this approach is crucial because if women subjected to abuse are injured rather than aided by a law specifically intended to address ipv, the law is not working in accord with its purpose. vawa, the vehicle of alleged assistance, has been tainted and may have been tainted from its very origin. this note will proceed in three parts. part i will review the historical prevalence of violence against women, the evolution of the public and legal responses to ipv, and the relationship between black women and (“[o]ppressive structures of race, class, and gender limit the alternatives [black] women have to resolve domestic encounters and negotiate the institutional challenges they face . . .”). 32 kimberlé crenshaw, mapping the margins: intersectionality, identity politics, and violence against women of color, 43 stan. l. rev. 1241, 1244 (1991). 33 id. at 1242 (“[t]he violence that many women experience is often shaped by other dimensions of their identities, such as race and class.”). 34 see generally abigail higgins & olúfémi o. táíwò, how the violence against women act failed women, the nation (mar. 3, 2021), https://www.thenation.com/article/society/violence-against-women-act/ [https://perma.cc/ 68fg-562g] (“[black women] who do not fit the imagined profile of the right victim (because they are the wrong race, gender, sexual orientation, or even age) report facing exclusion, hostility, and mockery when they attempt to get help from . . . the very same formal institutions supported legally and financially to address the problem by laws like vawa.”). 35 see generally jane coaston, a black woman shot and killed her abusive husband in a “stand your ground” state. now she faces murder charges, vox (aug. 25, 2018), https://www.vox.com/2018/8/25/17778712/stand-your-ground-alabama-black-womanguns [https://perma.cc/k333-9kea] (describing how “stand your ground” laws do not serve black women who use self-defense against their abusers, citing the story of jacqueline dixon); see also why do black women go to jail for self-defense?, new york minute (oct. 9, 2020), https://www.newyorkminutemag.com/why-do-black-women-go-to-jail-for-selfdefense/ [https://perma.cc/7shz-5dsu] (noting how “almost 60% of women state prisoners have a history of sexual abuse. part of that population…are incarcerated for criminal charges after pleading self-defense to free themselves from their abusers”). 860 colum. j. race & l. [vol. 13:853 the legal system. this part will also describe vawa’s legislative history and provide a procedural explanation of the act’s funding structure. part ii will analyze three of vawa’s grant programs to examine the programs’ effects on black women. finally, part iii will analyze how congress can introduce a revised appropriations bill that will fund economic and housing programs, which will meet the two most pressing needs for black female survivors.36 i. history and subsequent treatment of violence against women this part provides an overview of the history leading up to the passage of vawa, and connects that history to the policy and legal interpretations of the law. section i.a outlines the historical prevalence of violence against women and the women’s rights movements that arouse of it. section i.b. discusses the relationship between black women and the criminal legal system. then, section i.c. will examine vawa’s funding structure and its grant programs. a. the conditions that led to vawa’s enactment 1. historical climate and the battered women’s movement ipv dates back to ancient times.37 ancient roman communities of 600 bc treated women as the property of their husbands, who could lawfully beat, or even murder, their wives for misbehavior.38 in the united states, violence against women has persisted, especially in light of the increase in overall crime.39 the disproportionate infliction of violence against women continued through the late 1990s to today, with variations over time.40 from 2010 through 2017, the homicide of women by their intimate partners increased.41 according to the department of justice 36 see generally gender and racial justice in housing, nat’l women's l. ctr. (feb. 2021), https://nwlc.org/wp-content/uploads/2021/02/gender-and-racial-justice-inhousing.pdf [https://perma.cc/xvn8-4xwn] (noting how black female survivors are disproportionately represented in the homeless population); see also j. sebastian leguizamon et al., revisiting the link between economic distress, race, and domestic violence, 35 j. interpersonal violence 4141, 4141 (2020) (this article uses “a multivariate regression model to estimate how differences in the change in reported incidences of domestic violence by race correlate with changes in mass layoffs by race”). 37 see anna clark, domestic violence, past and present, 23 j. women’s hist. 193, 193-195 (2011) (describing the history and normalization of ipv dating back to the ancient roman period). 38 worldwide history of domestic violence, iresearchnet, http://criminaljustice.iresearchnet.com/types-of-crime/domestic-violence/worldwide-history-of-domesticviolence/ [https://perma.cc/x9ja-vxhc] (last visited oct. 20, 2021). 39 see rachel e. morgan & jennifer l. truman, criminal victimization 2019, dep’t of just., bureau just. stat. 11 (2020), https://bjs.ojp.gov/content/pub/pdf/cv19.pdf [https://perma.cc/87eq-efax] (reporting that “the percentage of violent victimizations reported to police was higher for females (46%) than for males (36%)”). 40 id. at 6. 41 see generally emma e. fridel and james alan fox, gender differences in patterns and trends in u.s. homicide, 1976–2017, 6 violence and gender 1 (2019) (finding that homicides by intimate partners are increasing, driven primarily by gun violence). 2023] aren’t i a woman deserving of justice 861 (doj), women made up 85% of ipv victims in 2001.42 ipv accounted for 20% of violent crimes against women in that same year. in 2020, one in four women experienced severe physical ipv during their lifetime, compared to one in nine men.43 a. the effects of ipv on women were often ignored despite this grim reality, ipv was trivialized in american society until the 1970s.44 in 1964, some doctors viewed ipv as “therapeutic.”45 this characterization as therapeutic stems from a 1964 study that concluded that couples use fighting to "balance out each other's mental quirks."46 judges and psychiatrists sometimes deemed it a pathology of the underclass or individual women.47 consequently, societal influences normalized ipv. b. the battered women’s movement encouraged recognition of ipv and brought remedies for victims however, the efforts of the battered women’s movement in the 1970s led to societal recognition of the severity of violence against women. the battered women’s movement, or the movement, was a social movement that developed in the 1970s to support women subjected to ipv. mirroring the spirit of england’s women’s liberation movements, this grassroots movement called attention to the male hegemony that allowed ipv to persist.48 g. kristian miccio, an expert on domestic violence, rape, and other gender-related crimes, articulated, “by situating male intimate violence within a cultural paradigm, the battered women’s movement focused on altering the social conditions that produced, created, and supported such abuse.”49 the initial focus of the movement’s advocates was to secure domestic violence shelters.50 the dangerous intersection between ipv and housing insecurity tends to force abused people to remain with their abusers due to financial dependence or the lack of affordable housing for people who choose to leave abusive partners.51 as a result of the advocates’ 42 callie rennison, intimate partner violence, 1993-2001, dep’t of just., bureau just. stat. (2003), https://bjs.ojp.gov/content/pub/pdf/ipv01.pdf [https://perma.cc/ m8ac-ap9h]. 43 national statistics, nat’l coal. against domestic violence, https://ncadv.org/statistics [https://perma.cc/7a2u-n7kb] (last visited dec. 21, 2021). 44 eliana dockterman, 50 years ago, doctors called domestic violence ‘therapy’, time (set. 25, 2014), https://time.com/3426225/domestic-violence-therapy/ [https:// perma.cc/t8yu-ncbq]. 45 id. 46 id. 47 see barnes, supra note 13, at 974 n. 135 (quoting randal albelda, fallacies of welfare-to-work policies, 577 annals 66, 74 (2001) (welfare receipt ‘constitute[s] dysfunctional behavior’ or ‘a pathology — one of the many ‘bad’ behaviors that helps reproduce poverty’”)). 48 miccio, g. kristian, a house divided: mandatory arrest, domestic violence, and the conservation of the battered women's movement, 42 houst. l. rev. 237, 249 (2007). 49 id. 50 sydney hyer, history of the battered women's movement, delaware coal. against domestic violence, https://dcadv.org/blog/history-of-the-battered-womensmovement.html [https://perma.cc/5zhw-dr8l] (last visited sept. 15, 2021). 51 see giulia paglione, domestic violence and housing rights: a reinterpretation of the right to housing, 28 hum. rts. q. 120, 123 (2006). 862 colum. j. race & l. [vol. 13:853 organizing, approximately 250 shelters were operating by the end of the 1970s.52 eventually, the advocates’ efforts led to over 50% of states passing laws that made it easier for survivors to receive civil protections.53 however, the movement shifted away from its initial focus and became increasingly professionalized and allied with other entities like law enforcement.54 over time, the organizers of the battered women’s movement collaborated with enforcement agencies, prosecutors, the courts, the private bar, and social services organizations.55 for example, the movement’s organizers began advocating for more funding of police, prosecutors, and courts.56 antiviolence reformers also prioritized laws that centered on carceral legal responses to ipv and state-sanctioned punishment.57 partnering with law enforcement occurred because feminist movements often focused on the experiences and circumstances of specific women—white middle-class women.58 some criminologists point to male entitlement and fragile masculinity as the root of ipv repeat offenders.59 these feminists posited that the cure was to strengthen criminal laws and remove police discretion because “lax policing of abusers and rapists as the gender justice issue . . . .”60 the shift in focus away from housing security to more punitive solutions led to policies like mandatory arrest laws, which evidence shows often led to the arrest of abused women and escalated violence.61 these laws allow an officer to make an arrest when there is probable cause that abuse has been perpetrated or when a person holding a protective order fears imminent harm.62 consequently, this collaboration influenced subsequent efforts and legislation that relied on enforcement to solve ipv.63 52 kathleen j. tierney, the battered women movement and the creation of the wife beating problem, 29 soc. probs. 207, 208 (1982). 53 id. 54 id. at 286—292. 55 id. 56 see goodmark, domestic violence, supra note 22, at 15. 57 id. at 14. 58 id. at 7 (recognizing that white middle-class women had “faith in the deterrent power of criminal law”). 59 id. at 146 (criminologist michael salter states that for repeat offenders “‘violence appears to be, at least in part, an effort to shore up a fragile and unstable sense of masculine honour and entitlement, the threat of punishment appears as an additional affront to their authority and may trigger a compensatory escalation in violence.’”) 60 aya gruber, the feminist war on crime: the unexpected role of women's liberation in mass incarceration 7 (2020). 61 erica r. meiners & judith levine, the feminist and the sex offender: confronting sexual harm, ending state violence 15 (2020). 62 david hirschel, et al., domestic violence and mandatory arrest laws: to what extent do they influence police arrest decisions?, 98 j. crim. l. & criminology 255, 256 (2008). 63 see mimi e. kim, from carceral feminism to transformative justice: womenof-color feminism and alternatives to incarceration, 27 j. ethnic & cultural diversity in soc. work 219, 220 (2018) (noting that decades of anti-violence movements, like the battered women's movement, entailed the “collaboration with the institutions of police, prosecution, courts, and the systems of jails, prisons, probation, and parole.”). 2023] aren’t i a woman deserving of justice 863 c. anti-ipv reformers shifted their focus to the criminal legal system to reduce ipv by the 1970s, ipv disputes resulted in increased arrest and prosecution rates, for abusers but also for victims.64 this occurred because antiviolence advocates pressured prosecutors to increase their low prosecution rates of ipv cases. some prosecutors initially argued that they would not bring ipv cases to court because there could be no proof without the cooperation of ipv victims.65 victims often feared retaliation by their partners or the financial loss created by their partner’s incarceration.66 thus, advocates demanded “no-drop prosecution” policies, which allowed prosecutors to circumnavigate victims’ refusal to cooperate through various, and sometimes disturbing, tactics.67 to encourage cooperation, prosecutors provided inducements, subpoenaed reluctant witnesses, and in extreme cases, arrested and imprisoned victims as material witnesses before trial.68 by 1996, two-thirds of prosecutors’ offices adopted some form of no-drop policies.69 as this story suggests, the responses to ipv became more focused on enforcement, and women of color warned of the problems that this would create for their communities.70 judith levine and erica r. meiners, authors of pieces centered on gender-related crimes, noted that women of color feminists “adamantly opposed outsourcing vengeance to the state,” because their experiences indicated that prisons do not eliminate violence, “but instead perpetrate and perpetuate it, while destroying individual lives, families, and communities.”71 this focus has now been labeled “carceral feminism.”72 coined by sociologist elizabeth bernstein, carceral feminism refers to “a reliance on policing, prosecution, and imprisonment to resolve gendered or sexual violence.”73 black female activists forewarned that this criminal law focus intentionally constructed new laws in a way that negatively impacted black women subjected to ipv due to increased 64 see generally lisa holland-davis & jason davis, victim arrest in intimate partner violence incidents: a multilevel test of black’s theory of law, 6 j. pub. and pro. socio. 1 (2014) (finding that the battered women's movement inadvertently led to the increase in arrests and prosecution of victims and perpetrators following the movement's push for pro-arrest policies). 65 id. 66 id. 67 id. 68 id. at 15. 69 id. 70 see goodmark, domestic violence, supra note 22, at 7 (“from the beginning of the antiviolence movement women of color foresaw the problems that criminalization would create for their communities, but those concerns went largely unheeded in the rush to institutionalize criminalization in law and policy.”). 71 meiners & levine, supra note 61, at 13. 72 elizabeth bernstein, militarized humanitarianism meets carceral feminism: the politics of sex, rights, and freedom in contemporary antitrafficking campaigns, 36 j. women in culture and soc’y 45, 47–58 (2010) (explaining how feminists’ embrace of criminalization laid the groundwork of what became known as carceral politics and carceral feminism). 73 alex press, #metoo must avoid “carceral feminism”, vox (feb. 1, 2018) https://www.vox.com/the-big-idea/2018/2/1/16952744/me-too-larry-nassar-judge-aquilinafeminism/ [https://perma.cc/lnq7-xjud]. 864 colum. j. race & l. [vol. 13:853 policing.74 during a 2000 conference centered on women of color and ipv, angela davis articulated that criminal law is a “poorly suited” solution because ipv is rooted in both individual social circumstances and larger systemic contexts.75 additionally, former senior counsel for economic security at the national women’s law center, brenda smith, argued that vawa’s criminal focus would disproportionately affect black women because the intersection of racial and gender discriminations coupled with the legal system’s historically oppressive relationship with the black community leaves black women the most vulnerable to any expansions of policing.76 the intersectionality of black women’s identities has created a “paradoxical political dynamic” that isolates black female victims and treats them as criminals.77 as concerns increased regarding the reliance on the legal system, there is this simultaneous issue facing black women’s treatment by the legal system. the burgeoning law-and-order focus that “made feminism more prosecutorial and punitive” harmed black female victims due to their historically oppressive relationship with the criminal legal system.78 specific manifestations of the legal system’s oppression of black female survivors of ipv will be expounded upon below. b. black women and the criminal legal system in order to understand how vawa’s enforcement focus is detrimental to black female survivors, this section will explore how the legal system has historically treated black women. section i.b.1 provides an overview of how slavery influenced the relationship between black women and the criminal legal system. next, section i.b.2 explores how racial and gender discrimination combined with punitive policies contributes to the criminalization of black women. further, section i.b.3 addresses legal actors’ damaging perceptions of black women. finally, section i.b.4 explains why black women—including black survivors of ipv—distrust the legal system. 1. slavery as the historical origins of the relationship between black women and the legal system and its effects the legal system’s criminalization of black women and their “overrepresentation in prison has a long history rooted in the tangled dynamics of race, gender, enslavement, and the law.”79 slavery’s development in the american colonies involved the creation of laws that endangered black women.80 specifically, laws prevented the prosecution of white slave-holding offenders who raped enslaved women; however, black male offenders who raped white women were violently punished.81 this 74 id. 75 goodmark, domestic violence, supra note 22, at 18. 76 see goodmark, reimagining vawa, supra note 19, at 85. 77 richie, supra note 1, at 112. 78 gruber, supra note 60, at 1 . 79 kali n. gross and cheryl d. hicks, introduction—gendering the carceral state: african american women, history, and the criminal justice system, 100 j. of afr. am. hist. 357, 359 (2015). 80 id. 81 id. 2023] aren’t i a woman deserving of justice 865 contradictory treatment between white male offenders and black male offenders within the criminal legal system reflected the prejudicial attitudes against black women who were seemingly not deserving of legal protections compared to other survivors. additionally, the legal system often punished black women who defended themselves against their abusers.82 for example, celia (nineteen years old)83 and virginia christian (sixteen years old)84 were two black slaves executed in 1855 and 1912, respectively, after defending themselves against their abusive masters. moreover, black women who were not sentenced to death were met with longer prison sentences than their white counterparts who committed similar crimes.85 in prison, black women were often confined under harsh conditions, which exposed them to rape and other forms of brutality.86 the unfair social hierarchy that slavery buttressed contributed to these occurrences in prison systems and within the broader criminal legal system. over time, this hierarchy not only created the foundation that modern-day punitive policies were established on, but it also contributed to the adverse treatment of black women. 2. punitive policies as causes of black women’s vilification by the legal system federal and state governments implemented pro-arrest legislation in response to ipv that have created punitive consequences, which further the criminalization of black women, expose them to disparate outcomes, and illustrate the legal system’s destructive relationship with the community.87 in the late 1990s, white feminist lawyers pushed for harsher arrest laws.88 for example, feminist lawyers sued new york city’s police departments for their “arrest-avoidance” policies.89 a similar development 82 see gross, supra note 14, at 25—26 (“structured by colonial and antebellum judiciaries, laws representing the priorities of enslavers effectively negated and criminalized black womanhood by subjecting black women to brutality and exploitation and by barring them from lawful avenues for redress.”). 83 mariame kaba, black women punished for self-defense must be freed from their cages, the guardian (jan. 3, 2019) https://www.theguardian.com/commentisfree/ 2019/jan/03/cyntoia-brown-marissa-alexander-black-women-self-defense-prison [https:// perma.cc/lp5n-fja9]. 84 lashawn harris, the “commonwealth of virginia vs. virginia christian”: southern black women, crime & punishment in progressive era virginia, 47 j. soc. hist. 922, 923 (2014). 85 see generally gross, supra note 14, at 29—30 (“between 1794 and 1835 in philadelphia, roughly 72 percent of black women who went before juries were convicted. they also had fewer of their cases dismissed than any other group and were more starkly overrepresented in prison than black men.”). 86 see generally jaclynn ashly, ‘treated worse than animals’: black women in pretrial detention, aljazeera (jul. 7, 2021) https://www.aljazeera.com/features/2021/7/7/ treated-worse-than-animals-black-women-in-us-pretrial-detention [https://perma.cc/87rcasv2]. 87 see generally willow, supra note 16 (“[mandatory arrest] has led to victims being arrested instead of/as well as perpetrators, while perpetrators are still less likely to go to jail or prison than other criminals, sexual assault remains underreported, and violence hasn’t stopped.”). 88 see goodmark, domestic violence, supra note 22, at 13. 89 id. 866 colum. j. race & l. [vol. 13:853 took place in oakland, california in 1976, as seen in scott v. hart.90 scott challenged the oakland police department’s response to calls for assistance from abused women.91 the goal of this class action was twopronged: 1) obtain adequate police protection for abused women by reversing the department’s arrest-avoidance policy and 2) educate the public and legal system about ipv.92 in response to scott, the oakland police department rescinded its arrest-avoidance policy and agreed to criminalize domestic violence.93 further, two prominent cases solidified the legal system’s arrest policies. two months following scott, activists filed suit against the new york city (nyc) police department for failing to intervene on behalf of twelve women in bruno v. codd.94 the lawyer who filed this case argued that prosecution and arrest were necessary to disband ipv.95 following this suit, nyc police promised to respond swiftly to ipv calls and to make an arrest whenever they have reasonable cause following an ipv dispute.96 thurman v. city of torrington had a similar result. on june 10, 1983, tracey thurman, a white woman, was brutally attacked by her husband as nearby police officers watched.97 following this case, thurman received a $2.3 million dollar judgement against the city of torrington and united states’ jurisdictions gradually enacted mandatory arrest policies in response to this case.98 vawa further incentivized jurisdictions to implement these policies by making participating jurisdictions eligible for millions in federal grant funding.99 at present, twenty-two states and the district of columbia have enacted mandatory arrest laws, and the vast majority of police departments have implemented pro-arrest policies.100 ultimately, mandatory arrest laws created unintended consequences. these consequences included the rise in mandatory and “dual” arrests of female victims.101 in jurisdictions that do not require police officers to determine 90 see pauline w. gee, ensuring police protection for battered women: the scott v. hart suit, 8 j. women in culture and soc’y 554, 556—560 (1983) (provides a full discussion with background of the case). 91 id. 92 id. 93 id. 94 bruno v. codd, 90 misc. 2d 1047, 1048 (sup. ct. n.y. cnty. 1977) (“the complaint, supported by sworn statements in dozens of actual cases, alleges that police officers called to the scene of a husband's assault on his wife, uniformly refuse to take action, even if the physical evidence of the assault is unmistakable and undenied”). 95 id. 96 see generally police, univ. of minnesota hum. rts. libr. (2003), http://hrlibrary.umn.edu/svaw/domestic/link/policereform.htm [https://perma.cc/m8vhcscu (explaining how the nyc police department changed its practices in domestic violence cases). 97 thurman v. city of torrington, 595 f. supp. 1521, 1522 (d. conn. 1984). 98 id. 99 violence crime control and law enforcement act of 1994, 18 u.s.c. §§1033— 1034 (1994); see also h.r. 3355, 103rd cong. (1994). 100 see generally gruber, supra note 60, at 148 (“although often held up as a stunning liberal victory, vawa was no less carceral than the rest of the crime control bill . . . vawa’s largest appropriation was grant money to states to encourage ‘more widespread apprehension, prosecution, and adjudication of persons committing violent crimes against women . . . ’”). 101 see goodmark, domestic violence, supra note 22, at 19. 2023] aren’t i a woman deserving of justice 867 the primary aggressor, dual arrests laws allow officers to arrest the victims along with their abusers.102 the detrimental effects of dual arrests on the victim is wide-reaching, including loss of employment, loss of child custody, labeled as an offender, financial hardship, and future unwillingness to report subsequent victimization.103 additionally, certain jurisdictions have nuisance property laws, which could result in victims losing their homes as a result of seeking police protection in an ipv dispute.104 consequently, pro-arrest laws have led to the increase in arrest rates of black female survivors.105 criminologist alesha durfee attributed this increase to the “implementation of mandatory arrest policies and not simply an increased use of violence by women in intimate relationships.”106 following the expansion of pro-arrest legislation in new hampshire, connecticut, colorado, minnesota, and maryland, “[w]omen have been disproportionately affected by the increase in the number of arrests for ipv”.107 this disparity most likely occurs due to the prevalence of gender discrimination in the penal context and its effects on black female survivors.108 thus, the increased reliance on enforcement to solve ipv made black women vulnerable to increased arrests, punitive social services, and rigid institutional regulation.109 sociologist beth richie states, “the buildup of a prison nation that surrounded the antiviolence movement enacted a set of public policies that favor the creation of a more conservative, punishment-oriented state . . . .”110 richie explained that this buildup of the prison nation exposed black women to negative consequences as they simultaneously experienced male violence in communities of concentrated disadvantage.111 as a result, black women's outcomes spurred negative stereotypes about them. 3. the discriminatory mythologies held by legal actors and officers about black women the combination of racial and gender discrimination fuels the detrimental perception of black women by the legal system’s officials. 102 id. 103 id. at 20 (“criminalization has also increased state control over women through the intervention of the child abuse and neglect system. . . . [m]andatory arrest and no-drop prosecution has been disempowering for some people subjected to abuse.”). 104 see goodmark, domestic violence, supra note 22, at 121. 105 see generally carolyn m. west, “sorry, we have to take you in:” black battered women arrested for intimate partner violence, 15 j. aggression, maltreatment & trauma 95, 102 (2007) (analyzing how mandatory arrest laws contributes to the increased rates of arrest among black women subjected to ipv). 106 alesha durfee, situational ambiguity and gendered patterns of arrest for intimate partner violence, 18 violence against women 64, 75. 107 see id. at 67. 108 see sacco, supra note 21, at 18 (“vawa 2013 . . . established a nondiscrimination provision to ensure that victims are not denied services and are not subjected to discrimination based on actual or perceived race, color, religion, national origin, sex, gender identity, sexual orientation, or disability.”). 109 see richie, supra note 1, at 25. 110 id. at 103—104. 111 id. see id. 868 colum. j. race & l. [vol. 13:853 judges,112 juries, and officers perceive black women as lascivious, dishonest, and predisposed towards criminally violent behavior.113 this is apparent in the case of former police officer daniel holtzclaw.114 holtzclaw was convicted of serial sexual violence against thirteen low-income, black women.115 according to prosecutors, holtzclaw deliberately targeted and raped these women because they were unlikely to be believed.116 additionally, a juror from a 2008 pornography trial said that he did not believe the testimony from black women because of how they dressed and “the way they act.”117 seemingly, some legal actors do not believe that black women require or deserve adequate protection.118 this treatment contributed to black women’s lack of trust in the legal system. 4. black women’s distrust of the criminal legal system black women’s apprehension stems from the legal system’s reliance on responses that criminalize black women or exclude them from the decision-making process following ipv disputes.119 mandatory arrest laws, for instance, often deprive black women of the ability to determine whether and how the state will intervene. the case of renata singleton, a black female ipv survivor, is demonstrative of the specific ways that certain ipv laws fail black women subjected to ipv.120 singleton resided in a mandatory arrest jurisdiction in louisiana.121 in this jurisdiction, some prosecutors often issued illegal subpoenas to compel ipv victims to meet with prosecutors and secure convictions.122 after singleton refused to meet with prosecutors following her boyfriend’s arrest for assaulting her, prosecutors issued an allegedly fraudulent subpoena to coerce her to appear in court.123 singleton spent five days in jail because she could not afford the high bond set at $100,000.124 in contrast, her abuser paid his $3,500 bond and served no time in jail.125 singleton’s interactions with the legal system demonstrate the pattern of institutional harm that black 112 see generally christina carrega, judge reassigned for allegedly calling black woman juror ‘aunt jemima’, abc news (feb. 7, 2020), https://abcnews.go.com/us/judgereassigned-allegedly-calling-black-woman-juror-aunt/story?id=68824246 [https://perma.cc/ 9ntv-8q65] (describing the temporary suspension of a state judge who allegedly referred to a black woman as "aunt jemima", which is a derogatory term for black women). 113 maya finoh & jasmine sankofa, supra note 25. 114 id. 115 id. 116 id. 117 id. 118 id. 119 see generally chandra whitfield, it’s complicated: why some black women refuse to call the police when their black male partners threaten their lives, the grio (apr. 10, 2019), https://thegrio.com/2019/04/10/why-some-black-women-refuse-to-call-policeblack-male-partners/ [https://perma.cc/e43m-9ht9] (“some domestic violence advocates say that black women also have a legitimate fear that they themselves may end up arrested or subjected to violence or mistreatment from responding officers if they call police for help, adding to already heightened anxiety levels.”); see also goodmark, domestic violence, supra note 22, at 20 (“[m]andatory arrest may reduce reporting of intimate partner violence among women subjected to abuse who oppose the policy.”). 120 see goodmark, domestic violence, supra note 22, at 21. 121 id. at 20—21. 122 id. at 21. 123 id. 124 id. 125 id. 2023] aren’t i a woman deserving of justice 869 female survivors face as a result of the criminal enforcement responses to ipv. mandatory policies, such as mandatory arrest, create situations that discourage black female ipv survivors from reporting abuse. goodmark claims, “[s]tate intervention cannot guarantee safety for women of color so long as these women both fear and are actively harmed by engaging with the state.”126 due to this, black women may be afraid to call police officers.127 in 2015, janisha fonville was shot and killed by responding officers whom fonville called to render aid during an ipv dispute.128 in a survey that analyzed survivors’ experiences with law enforcement, the national domestic violence hotline found that over half of the participants stated that calling the police would worsen their situation.129 taken together, the holtzclaw, singleton, and fonville examples point to the system-wide harm that black female survivors consistently face in this context. these present-day events illustrate that the warnings of women of color advocates went unheeded in the race to institutionalize criminalization as a response to ipv. this race culminated in the enactment of vawa. 5. vawa endorsed a clear federal preference for a carceral response to ipv the impact of mainstream antiviolence efforts laid the groundwork for vawa. during the late 1990s, when antiviolence reformers received growing interest and funding for carceral responses, attorneys, judges, and congress began paying attention to these issues.130 to aid this work, feminist legal scholars and attorneys collaborated to educate judges about gender bias in the courts, in addition to other legal issues.131 influenced by these movements to address ipv with punitive measures, congress created a committee to evaluate gender issues in the federal judicial system.132 soon after, then-senator joe biden sponsored the violence against women bill that was signed into law by then-president bill clinton.133 following 126 leigh goodmark, should domestic violence be decriminalized?, 40 harv. j. of l. & gender 53, 73 (2017) [hereinafter goodmark, domestic violence be decriminalized]. 127 see whitfield, supra note 119. 128 see goodmark, domestic violence, supra note 22, at 21. 129 goodwin k. amber & tj grayson, investing in the frontlines: why trusting and supporting communities of color will help address gun violence, 48 j. l. med. & ethics 164, 165 (2020), https://law.yale.edu/sites/default/files/area/center/justice/investing_in_the_ front_lines.pdf [https://perma.cc/fyj8-whac] (“in a 2015 survey by the national domestic violence hotline analyzing survivor experiences with law enforcement, over half of the participants said calling the police would make their situation worse”). 130 jill tiefenthaler et al., services and intimate partner violence in the united states: a county-level analysis, 67 j. of marriage and fam. 565, 567 (2005) (in 1988, congress created a committee to examine gender issues in the federal judicial system that was followed by the introduction of vawa legislation in 1990. after much debate, vawa became law in the summer of 1994 under the larger omnibus crime control act.”). 131 id. at 567 (“[a] group of feminist legal scholars and attorneys founded gender bias task forces designed to educate judges about gender bias in the courts”). 132 id. at 567 (“in 1988, congress created a committee to examine gender issues in the federal judicial system . . .”). 133 savannah behrmann, democrats want to renew the expired violence against women act, again. here's what you need to know, usa today (mar. 16, 2021) https://www.usatoday.com/story/news/politics/2021/03/16/violence-against-women-act-joebiden-backing-goes-back-house/4704243001/ [https://perma.cc/7n8h-74t9]. 870 colum. j. race & l. [vol. 13:853 much debate, vawa became federal law under the violent crime control and law enforcement act of 1994 (p.l. 103–322).134 although the bill initially stood alone, vawa acknowledged congressional concerns regarding violent crime that disproportionately targeted women.135 although vawa had various victim-centered responses to violence against women, it centralized the criminal legal system in its solutions.136 c. vawa’s funding structure, relevant agencies, and grant programs vawa’s funding structure reveals that despite the consideration given to victims and survivors in vawa’s grant program, there is a stark disparity in the act’s funding between programs intended to support the work of law enforcement and programs specifically dedicated to victims and survivors. 1. vawa’s legislative history and purpose vawa’s legislative history relates to the investigation and prosecution of violent crimes against women.137 then-senator biden’s advocacy was motivated by the desire to create the first u.s. federal legislation that recognized ipv as a crime.138 vawa represented an approach to strengthening responses at the local, state, tribal, and federal levels to ipv.139 the act provided training for police, prosecutors, and judicial officials on dealing with ipv abuse.140 it also funded services to victims, such as shelters for abused women and children.141 to efficiently distribute funds authorized by vawa, the office on violence against women (ovw) was administratively created in 1995 within the doj.142 the doj and health and human services (hhs) also administer vawa’s programs.143 in its original form, vawa had three primary purposes: 1) it amplified investigations and prosecution of sex offenses; 2) it created grant programs that involved different entities aimed at targeting ipv, such as law enforcement, public and private entities, service providers, and victims 134 violence against women, 42 u.s.c. § 13925 (2012). 135 id. 136 id. 137 id. 138 german lopez, the controversial 1994 crime law that joe biden helped write, explained, vox (sep. 29, 2020), https://www.vox.com/policy-and-politics/2019/6/20/ 18677998/joe-biden-1994-crime-bill-law-mass-incarceration [https://perma.cc/7a7p-h34g]. 139 laura l. rogers, the violence against women act – an ongoing fixture in the nation’s response to domestic violence, dating violence, sexual assault, and stalking, dep’t of just. archives (feb. 19, 2020), https://www.justice.gov/archives /ovw/blog/violence-against-women-act-ongoing-fixture-nation-s-response-domestic-violencedating [https://perma.cc/3whs-vggk]. 140 see 34 u.s.c. §12291(b)(11)(a) (“of the total amounts appropriated under this subchapter, not less than 3 percent and up to 8 percent, unless otherwise noted, shall be available for providing training and technical assistance. . .”). 141 see 34 u.s.c. §12291(a)(51) (“the terms ‘victim services’ and ‘services’ mean services provided to victims of domestic violence, dating violence, sexual assault, or stalking, including . . . emergency and transitional shelter. . .”). 142 see goodmark, reimagining vawa, supra note 19, at 87 (“since 1995, the department of justice’s office on violence against women . . . administers most vawa grant programs . . .”). 143 see sacco, supra note 21, at 30. 2023] aren’t i a woman deserving of justice 871 of crime; and 3) it established provisions for immigrants subjected to abuse.144 to strengthen its efficacy and expand its provisions, vawa has undergone regular reauthorizations of appropriations for the vawa grant programs every five years. the act was reauthorized in 2000, 2005, 2013 and is currently up for reauthorization in the senate. if authorizations for grants expire, congress may continue to appropriate funding for vawa.145 each reauthorization expanded vawa’s provisions. vawa’s 2000 reauthorization created a pertinent legal assistance program that provided representation to ipv survivors, enhanced training for lawyers representing victims, and created other direct legal services.146 this reauthorization also enabled ipv survivors who escaped their abusers and fled across state lines to obtain custody orders without returning to jurisdictions where they may be in danger.147 furthermore, the 2005 reauthorization offered more inclusive approaches.148 for example, it included funding for rape crisis centers, linguistically-specific services, and housing protections.149 this reauthorization set forth the child witness, court training and improvements, and culturally specific programs.150 additionally, the 2013 renewal of vawa strengthened protections for native americans and lgbt (lesbian, gay, bisexual, and transgender) survivors.151 this reauthorization granted tribal courts prosecutorial power over non-native americans who abused native american women on tribal lands.152 additionally, vawa 2013 guaranteed that lgbt survivors could not be denied access to critical services on the basis of gender identity or sexual orientation.153 vawa’s fundamental goals—preventing violence against women and responding to victims’ needs—are advanced by the law’s federal funding and grant programs. the note will turn next to a discussion of vawa’s funding structure and its emphasis on enforcement. 2. vawa’s current funding structure and procedures the purpose of vawa’s funding is to support programs under the act that address domestic violence, dating violence, sexual assault, stalking, and additional crimes.154 the funding distribution is organized through grant programs focused on law enforcement, social and educational programs.155 congress appropriates the majority of funds to 144 id. at 2. 145 id. at ii (“congress may consider . . . to reauthorize vawa”). 146 legal assistance for victims grant program, lav program, https://www.vawamei.org/wp-content/uploads/2018/03/lav.pdf [https://perma.cc/3vqx8zt5] (last visited nov. 1, 2021). 147 history of the violence against women act, legal momentum, https:// www.legalmomentum.org/history-vawa [https://perma.cc/kn4l-8j5r] (last visited aug. 23, 2021). 148 id. 149 id. 150 id. 151 see sacco, supra note 21, at 18—20. 152 id. at 20. 153 id. at 18. 154 id. at ii. 155 id. at 12. 872 colum. j. race & l. [vol. 13:853 doj through the office on violence against women.156 ovw administers technical and financial assistance to communities around the country to facilitate the creation of practices, policies, and programs aimed at eliminating ipv.157 also, funds are appropriated to federal agencies responsible for managing vawa programs, such as the united states department of housing and urban development (hud) and hhs.158 other federal agencies, such as the centers for disease control and prevention (cdc) and the office of justice programs (ojp), manage vawa’s programs. funding for each fiscal year has increased since vawa’s passage. under vawa’s 2000 reauthorization, congress appropriated $3,300,000,000 over five years to combat ipv.159 in 2003, the total authorized funding was $627,300,000, with $362,300,000 allocated to the doj and $263,000,000 allocated to hhs.160 within this allocation, $290,000,000 of the doj dollars fell under three specific grant programs: $185,000,000 to the services, training, officers, and prosecutors violence against women grant program (stop) that supports law enforcement and prosecution, $65,000,000 to grants to encourage arrest policies (also known as the improving criminal justice responses program), and $40,000,000 to the rural domestic violence and child abuse enforcement.161 from 1995 to the fiscal year 2018, $5,700,000,000 in grants and cooperative agreements have been awarded, and much of this money was allocated to prosecutors, police, courts, and community-based agencies supporting the work of law enforcement.162 approximately 62% of vawa funding was awarded to the criminal legal system in 1994.163 by 2013, this percentage increased to around 85% of vawa’s funding.164 vawa’s two largest grant programs were awarded a combined $266,000,000 to the 156 ovw fiscal year 2022 violence against women act (vawa) measuring effectiveness initiative (mei), dep’t of just. (dec. 15, 2021) [hereinafter dep’t of just., ovw 2022 mei], https://www.justice.gov/ovw/page/file/1461336/download [https:// perma.cc/jfu4-utvv]. 157 see sacco, supra note 21, at 284 (“many vawa grant programs fund the same services and the same organizations. for example, nine separate vawa programs may be used to fund emergency shelter or transitional housing . . . ovw administers 4 formula grant programs and 15 discretionary grant programs.”). 158 id.at 4. 159 emily s. rueb and niraj chokshi, the violence against women act is turning 25. here’s how it has ignited debate, n.y. times (apr. 4, 2019), https://www.nytimes.com/ 2019/04/04/us/violence-against-women-act-reauthorization.html [https://perma.cc/a5xhxa8j]. 160 david m. heger, the violence against women act of 2000, national violence against women prevention research center (jan. 16, 2001), https://mainwebv.musc.edu/vawprevention/policy/vawa00.shtml [https://perma.cc/bsy6-8gnx]. 161 id. 162 see goodmark, reimagining vawa, supra note 19, at 2. 163 id. 164 leigh goodmark, the violence against women act is unlikely to reduce intimate partner violence – here’s why, the conversation (oct. 17, 2018) [hereinafter goodmark, vawa ipv], https://theconversation.com/the-violence-against-women-act-is-unlikely-toreduce-intimate-partner-violence-heres-why-103734 [https://perma.cc/l4ls-ccuk]. 2023] aren’t i a woman deserving of justice 873 criminal legal system alone by 2017.165 simultaneously, the grants to social services have declined sharply. in 1994, 38% of funding went to organizations dedicated to servicing the needs of women subjected to ipv.166 by 2013, only 15% of vawa grants went to social services organizations due to the financial focus on enforcement policies and programs.167 surprisingly, even within vawa’s victim services grant programs that are seemingly less focused on enforcement, funding is still allocated to law enforcement. for example, the rural sexual assault, domestic violence, dating violence, and stalking program, which aims to enhance the safety of rural ipv victims, funds police and prosecutors.168 3. the procedural mechanics of vawa’s grant programs the purposes of vawa’s grant programs, funded by the law, reemphasize vawa’s commitment to criminalizing ipv.169 the 1994 iteration of vawa created several grant programs, including programs that targeted 1) investigating and prosecuting domestic violence and related crimes; 2) improving investigations and prosecutions of domestic violence and child abuse in rural states; 3) encouraging states, tribes, and local governments to treat ipv as a crime and implement arrest policies; 4) building cooperation between law enforcement, public and private sector providers, and judicial officials; 5) preventing ipv and sexual assault; 6) preventing crime in public transportation and public and national parks.170 currently, the office on violence against women administers nineteen grant programs authorized by vawa and subsequent legislation.171 four of these grant programs are “formula” programs.172 formula programs provide funding to the states through the office on violence against women.173 the enacting legislation specifies how the funds are to be distributed. for example, under the stop program, each territory and state must allocate 25% of the grant funds for law enforcement, 25% for prosecution, 30% for victim services, and 5% to state and local courts.174 the remaining 15% may be allocated at the discretion of the state administering agency and within one of the program’s purpose areas.175 moreover, the additional programs are “discretionary” programs.176 the office on violence against women created program qualifications, parameters, eligibility, and deliverables per authorizing legislation for these programs.177 to be considered for funding under discretionary programs, organizations must apply directly to the office on 165 alisha haridasani gupta, is the legal system an effective solution to domestic violence?, n.y. times (jun. 17, 2021), https://www.nytimes.com/2020/12/15/us/domesticviolence-fka-twigs-shia-labeouf.html [https://perma.cc/8zdk-746a]. 166 see goodmark, domestic violence, supra note 22, at 2. 167 id. 168 34 u.s.c. § 12341 (2020). 169 see goodmark, reimagining vawa, supra note 19, at 12. 170 id. at 3. 171 id. at 36. 172 id. at 28. 173 id. 174 34 u.s.c. § 10132 (2021). 175 id. 176 see goodmark, reimagining vawa, supra note 19, at 28. 177 id. 874 colum. j. race & l. [vol. 13:853 violence against women.178 for instance, ovw set the legal assistance for victims program guidelines and limited applicants to private nonprofit entities, publicly funded organizations not acting in a government capacity, and tribal organizations.179 the discrepancy in enforcement-focused funding and victimcentered funding directly affects black women due to their relationship to the legal system.180 to be sure, some of vawa’s grant programs are victimfocused, such as programs that provide direct intervention and related assistance to victims of sexual assault, the development of tribal coalitions focused on ipv, and transitional housing.181 for example, the transitional housing program supports programs that provide six to twenty-four months of housing for victims in need of shelter due to ipv-related abuse.182 nevertheless, like the transitional housing program, many of vawa’s victim-centered programs have limited funding compared to vawa’s more enforcement-focused programs. in 2020, stop received $152,900,000 in funding whereas $40,400,000 was granted to the transitional housing program.183 part ii will delineate three specific grant programs that demonstrate vawa’s funding priorities. section ii.a will describe the mechanics of vawa’s stop program and how this program adversely affects black female survivors. in tandem, section ii.b will then conduct a comparative analysis regarding the icjr program and the culturally specific services program (cssp) to illustrate further how the inequality between vawa’s enforcement and victim-centered funding impacts black women. cssp, a program that could substantially aid black women due to its focus on minority survivors, is underfunded because of the financial emphasis placed on enforcement. although vawa funds beneficial programs, the enforcement focus ultimately harms black women subjected to abuse. lastly, part iii will then address a two-prong solution that better protects black women and tailored victim-centered services. ii. examining the relationship between vawa’s grant programs and black female survivors the sizable gap in funding between grant programs that emphasize enforcement and grant programs that fund social services organizations is injurious to black women because their identities have historically heightened their vulnerability to ipv and the criminal legal system.184 namely, the reliance on the criminal legal system of vawa’s funding structures exacerbates the negative relationship between black women 178 see goodmark, reimagining vawa, supra note 19, at 36. 179 34. u.s.c. § 20121 (2021). 180 see section i.b of this paper, black women and the criminal legal system, for more information on black women in the carceral system. 181 see generally davis, supra note 18 (noting the different victim services programs that vawa offers). 182 34 u.s.c. § 12351 183 fy 2020 ovw grant awards by program, dep’t of just. (nov. 23, 2022) [hereinafter dep’t of just., ovw grant awards], https://www.justice.gov/ovw/awards/fy2020-ovw-grant-awards-program [https://perma.cc/9jbk-56f3]. 184 for more background on black women and the criminal legal system, see section i.b of this paper, black women and the criminal legal system. 2023] aren’t i a woman deserving of justice 875 and the legal system, which harms black women subjected to ipv. while previous literature has argued that vawa is problematic, none have thoroughly focused on how the interactions between the act’s grant programs and minority victims, specifically black women, contribute to the law’s inefficiency. a. vawa’s stop grant program 1. statutory purpose and procedural explanation of the stop grant program while social movement actors and institutions in civil society once led in the dance to mitigate ipv, they quickly became “the subordinate partner in a dance now directed and dominated by the goals . . . of law enforcement.”185 vawa’s allocation of hundreds of millions of dollars to police, courts, and prosecutors has “creat[ed] a powerful motivation for law enforcement to take the helm of antiviolence efforts.”186 but how truly nonviolent can law enforcement’s efforts be when used on a community whose relationship with the legal system has historically been violent? an analysis of the stop program, vawa’s largest grant program, may shed light on this question. the stop program’s structure and its increase in funding illustrate the grant program’s emphasis on law enforcement and prosecution. the stop program was reauthorized and amended by vawa 2000, vawa 2005, and vawa 2013.187 in 2019, stop received $215,000,000 in funding,188 compared to the $45,000,000 in funding granted to the civil legal assistance for victims grant program.189 the stop program promotes the “strengthening of effective law enforcement, prosecution, and judicial strategies and victim services” to improve the legal system’s responses to ipv.190 eligible applicants for stop program grants include all states, the district of columbia, and u.s. territories.191 once the states and territories receive the funds, the grants are then 185 see goodmark, domestic violence, supra note 22, at 18 (quoting mimi e. kim, dancing the carceral creep: the anti-domestic violence movement and the paradoxical pursuit of criminalization, 1973-1986, uc berkeley: inst. for the study of societal issues (2015)). 186 id. at 15. 187 stop violence against women grant federal program guidelines, west virginia div. of just. and cmty. services, https://www.justice.gov/ovw/stop-violenceagainst-women-formula-grant-program [https://perma.cc/hr53-kxet] (last visited dec. 24, 2022). 188 fy19 appropriations bill becomes law, association of vawa administrators (feb. 21, 2019), https://www.avadministrators.org/fy19-appropriationsbill-becomes-law/ [https://perma.cc/bfz3-rlcb]. 189 see appendix: budget of the u.s. government, fiscal year 2018, u.s. office of management and budget, 720 (2017), https://www.google.com/books/edition/ appendix_budget_of_the_u_s_government_fi/6atfo9nwmrcc?hl=en&gbpv=1&dq=vawa +owv+civil+legal+assistance+45,000,000&pg=pa720&printsec=frontcover#v=onepage&q=v awa%20owv%20civil%20legal%20assistance%2045%2c000%2c000&f=false [https://perma.cc/gx5m-xmdl]. 190 stop program 2016 report, dep’t of just., office on violence against women 15 (2016) [hereinafter dep’t of just. ovw, stop 2016 report] https://www.vawamei.org/wp-content/uploads/2018/10/final_2016_stop_report_to_ congress_august_2018.pdf [https://perma.cc/6hkx-mp4u]. 191 id. at 2. 876 colum. j. race & l. [vol. 13:853 subgranted to programs and agencies.192 these include state and local courts (including juvenile courts), state offices and agencies, units of local government, victim service providers, and tribal governments.193 each state then designates an official to serve as the stop administrator to manage and oversee the process by which their state awards subgrants.194 as previously mentioned, stop distributes funding based on a statutorily determined, population-based formula195 and pursuant to the designated purpose areas. according to 34 u.s.c. § 10441(b), funds under this grant program must be used for one or more of the designated purpose areas, which include: 1) training law enforcement officers, judges, other court personnel, and prosecutor to more effectively respond to violent crimes against women, 2) developing, training, or expanding units of law enforcement officers, judges, other court personnel, and prosecutors specifically targeting violent crimes against women, and 3) installing or expanding data collection and communication systems to link police, prosecutors, and courts to identify, classify, and track arrests.196 some stop funding goes to victim-centered initiatives. for example, stop distributes funding to strengthen victim services and legal assistance programs, authorize specialized domestic violence court advocates in courts, and assist victims of domestic violence in immigration matters.197 however, stop’s funding is still more skewed toward enforcement. in 2014, compliance with stop required prosecutors and law enforcement to receive not less than 25% each of stop funding, whereas community-based organizations must receive at least 10%.198 the outcomes of stop’s enforcement focus detrimentally affect black female survivors. 2. stop contributes to harmful outcomes for black female victims and survivors stop’s enforcement focus harms black women because stop’s funding contributes to the increased arrests and convictions of black female survivors, furthers the community devastation of the black community, and limits black women’s accessibility to stop’s support services. a. the punitive consequences for black women who use selfdefense in ipv disputes firstly, black women are disproportionately likely to be prosecuted and incarcerated when they defend themselves against their abusers.199 192 id. at 18. 193 id. 194 id. 195 id. at 7—8 (under stop, each territory and state must allocate 25% of the grant funds for law enforcement, 25% for prosecution, 30% for victim services, and 5% to state and local courts). 196 34 u.s.c. § 10441 (2020). 197 id. at 15—16 . 198 ovw fiscal year 2014 stop formula grant programsolicitation, dep’t of just. 27 (feb. 6, 2014) [hereinafter dep’t of just., ovw 2014 stop solicitation] https://www.justice.gov/sites/default/files/ovw/legacy/2014/02/24/stop-2014-solicitation.pdf [https://perma.cc/n4yf-5d7r]. 199 see new york minute, supra note 35 (“the aclu reported almost 60% of women state prisoners have a history of sexual abuse . . . black women have struggled to be 2023] aren’t i a woman deserving of justice 877 thus, stop’s strengthening of the criminal system causes more black female survivors to suffer. in 2013 and 2014, stop’s funding resulted in 209,535 ipv dispute cases being accepted for prosecution and stop-funded prosecution offices showing an overall conviction rate of 70%.200 additionally, in these same years, stop funding led to 59,211 arrests.201 evidence suggests that black female victims involved in ipv disputes are overrepresented in these prosecution, conviction, and arrest rates.202 this reality results because a substantial number of black female arrestees face punitive consequences after using self-defense against their abusers.203 the 2013 case of marissa alexander is illustrative. alexander was convicted and received a twenty-year sentence after firing a warning shot in self-defense during a violent confrontation with her abusive husband. to place this in perspective, while alexander’s stand your ground defense was unsuccessful, george zimmerman’s exact defense was successful.204 whereas alexander’s act of self-defense injured no one, zimmerman was not convicted for murdering an unarmed teenaged black boy.205 while the excuse of self-defense is usually believed when applied to white victims who claim they felt threatened by minority aggressors, this defense is less likely to win when applied to black women who acted in selfdefense during an ipv dispute.206 although alexander’s conviction was ultimately overturned, her case illustrates how black female “survivors are systematically punished for taking action to protect themselves and their children while living in unstable and dangerous conditions.”207 this inequality may result, in part, due to prosecutorial discretion.208 as one seen as the victims instead of the aggressors due to the preexisting notions and stereotypes surrounding them”). 200 see dep’t of just. ovw, stop 2016 report, supra note 190, at 41. 201 id. at 73. 202 see richie, supra note 1, at 29 (“[r]esearch has . . . established a higher incidence rate of intimate partner violence for black women”). 203 see gross, supra note 14, at 32 (“given black women’s representation in the criminal justice system and their historic and ongoing vulnerability, there can be little doubt that gender violence is a key factor in their disproportionate representation. indeed, 68 percent of incarcerated black women had been victimized by intimate-partner violence, and, compared to white women, black women are twice as likely to be killed by a spouse”); see also kaba, supra note 83 (“multiple studies indicate that between 71% and 95% of incarcerated women, with black women overrepresented in these statistics, have experienced physical violence from an intimate partner.”). 204 see generally josephine ross, cops on trial: did fourth amendment case law help george zimmerman's claim of self-defense?, 40 seattle univ. l. rev. 1 (2016) (discussing that george zimmerman, a then-neighborhood watch coordinator, shot trayvon martin, an unarmed seventeen-year-old student. following the trial, zimmerman was charged with murder for martin's death, but was eventually acquitted at trial due to his selfdefense claim under florida’s stand your ground statute). 205 id. 206 see generally gross, supra note 14, at 32 (“given black women’s representation in the criminal justice system and their historic and ongoing vulnerability, there can be little doubt that gender violence is a key factor in their disproportionate representation. indeed, 68 percent of incarcerated black women had been victimized by intimate-partner violence, and, compared to white women, black women are twice as likely to be killed by a spouse”). 207 see kaba, supra note 83. 208 james e. johnson et. al., racial disparities in federal prosecutions 11 (2010) (“unwarranted racial disparities in decision-making may result from outright conscious animus, including the use of race-neutral criteria (such as class or geography) as a pretext for impermissible consideration of race, or from unconscious racial stereotyping.”). 878 colum. j. race & l. [vol. 13:853 scholar has articulated, “black women were not entitled to the law’s protection, though they could not escape its punishment.”209 through an intersectional lens, it becomes clear that black women become trapped in cycles of victimization and criminalization due to racialized narratives that place them outside the hegemonic boundaries of womanhood, and thus, outside the bounds of the law’s protection.210 through criminalization, black women are held accountable for their own suffering, which is intensified by their vulnerability to poverty.211 black women are vulnerable to economic disadvantage, which increases their likelihood of being exposed to ipv. the overrepresentation of people of color in “economically stressed neighborhoods likely accounts for the high rates of intimate partner violence among low-income women of color.”212 the disproportionate exposure of black women to both economic vulnerability and ipv increases the likelihood that they will have to resort to selfdefense. thus, it is not just their individual “choices” but also their social positioning that makes them more susceptible to being criminalized for protecting themselves. while black women come into contact with the criminal legal system for statutory offenses in the same way others are charged with crimes, the analysis above demonstrates how the stop program contributes to the overcriminalization of black female survivors through increased arrests, prosecution, and convictions. b. stop’s effects on the black community ultimately, the stop program contributes to the community devastation of the black community. this community devastation relates to the breaking up of black families, social networks, and community structures, which contributes to black female survivors’ overall vulnerability to subjugation in various spheres, such as economic security. the increase in funding to the legal system, facilitated in part by stop’s funding, strengthens officers’ and prosecutors’ ability to arrest, convict, and incarcerate black male abusers, which creates community devastation for the black community at large. criminologist elliott currie expressed, “[t]he experiences of incarceration, especially in a society that already suffers from a hollowed opportunity structure and thin social supports, is often a disability, one that … cements great numbers of former offenders into a condition of permanent marginality.”213 this hollowing of a community is especially apparent within the black community. using criminalization to respond to ipv creates serious harms to black communities at large, including the mass incarceration of black men.214 for example, in milwaukee, a mandatory arrest jurisdiction, men of color represented 24% of the population of the county’s population but 209 see gross, supra note 14, at 25. 210 id. 211 robin bleiweis et. al., the basic facts about women in poverty, cap (aug. 3, 2020), https://www.americanprogress.org/article/basic-facts-women-poverty/ [https:// perma.cc/hc29-nfcr]. 212 see goodmark, domestic violence, supra note 22, at 37. 213 elliot currie, violence and social policy, in routledge handbook of critical criminology 472 (2012). 214 see goodmark, domestic violence, supra note 22, at 19. 2023] aren’t i a woman deserving of justice 879 represented 66% of the defendants in ipv cases.215 the evidence suggests that a sizeable portion of these men of color defendants are black men because black men dominate milwaukee’s minority population and have been incarcerated at rates highly disproportionate to their share of the state population at all age levels.216 in relation, most ipv offenses are prosecuted as misdemeanors, and rates of misdemeanor prosecutions are significantly higher among men of color. 217 despite this reality, separating victims from their abusers does pose benefits and could prevent future abuse. however, restorative programs could serve as an alternative. the disparate prosecution and incarceration of black men inflicts egregious costs for black women and their communities. black women’s vulnerability to community devastation intersects with another form of vulnerability that similarly, and overwhelmingly, exposes black women to poverty: economic abuse. incarcerating black men also erodes black women’s access to financial relief and hollows out the black community. a report found that 86% of women who experience ipv also report economic abuse.218 economic abuse is the range of behaviors that allows a perpetrator to control another’s access to economic relief.219 in tandem, the vast majority of ipv survivors are black women, so it is reasonable to deduce that black women are disproportionately impacted due to their financial dependence on their abusers. the statistics confirm this reality. black women are more likely to be low-income and thus more likely to be subjected to ipv.220 black women made up 22.3% of women living in poverty despite only representing 12.8% of the u.s. female population.221 women at or below the poverty level experience abuse almost twice as often as women at 101– 200% of the poverty level.222 scholars sonia m. frias and ronald j. angel also note, “those who are unemployed and who lack financial resources are more likely to suffer repeated violence, and they are less likely to leave their abusers permanently than employed women or those with more financial resources.”223 for these aforementioned reasons, it is safe to deduce that economic abuse increases black women’s disproportionate exposure to ipv. additionally, when fathers are incarcerated, the family’s income declines by 22%, and research suggests that 65% of families cannot meet 215 id. 216 lois m. quinn & john pawasarat, statewide imprisonment of black men in wisconsin 1, eti publications (2014) (providing data on the black male incarceration for the state of wisconsin). 217 see goodmark, domestic violence, supra note 22, at 19. 218 the cost of covid-19: economic abuse throughout the pandemic, surviving economic abuse 3 (2021). 219 id. 220 see goodmark, reimagining vawa, supra note 19, at 92 (“while criminalization of intimate partner violence can confer benefits upon victims of violence, its costs are quite high. those costs are borne disproportionately by people of color and individuals with lower incomes . . .”). 221 see bleiweis et. al., supra note 211, at 2. 222 donna coker et. al., responses from the field: sexual assault, domestic violence, and policing 7, aclu (2015). 223 sonia m. frias & ronald j. angel, stability and change in the experience of partner violence among low-income women, 88 soc. sci. q. 1281 (2007). 880 colum. j. race & l. [vol. 13:853 all of their financial needs.224 children of incarcerated men also suffer as they are more likely to experience homelessness.225 for the black community, incarceration serves as a “nearly insurmountable barrier”; only 5% of black applicants with a criminal record receive callbacks for job interviews.226 the depression of former inmates’ employment opportunities is particularly troublesome in the context of ipv. research suggests that rates of ipv are directly correlated with male unemployment.227 thus, the longer he is unemployed, as a result of incarceration, the higher the rate of ipv. black women are then disproportionally exposed to revictimization. this community devastation is also debilitating to black women because the investment in prisons reduces social services and resources granted to low-income communities.228 in turn, this deprives black communities of funding for health care, education, and housing. these are services that could dramatically stabilize these communities.229 the majority of former prisoners are released into diminished neighborhoods whose stability is weakened by the loss of their members to prison.230 the mass incarceration of black men devastates black communities at large because pumping more funding into carceral institutions through the stop program exacerbates this problem. this concentration of punitive measures in black communities is detrimental to black female survivors. c. the outcomes of stop’s victim-centered services due to the outcomes created by stop’s victim-centered services, black women are underrepresented in the universe of victims who receive services despite being overrepresented in the universe of people who experience ipv. currently, 30% of stop’s funding is attributed to victim services, with the legislation requiring at least 10% for culturally specific victim services.231 in 2013 and 2014, however, stop’s distribution of victim services went primarily to aiding white female survivors.232 for example, in 2013 and 2014, stop’s victim services served approximately 55% of white male and female survivors.233 this evidence also shows that 90% of the white survivors who received this funding in both years were female.234 thus, white female victims received the most funding of any other individual racial/ethnic group.235 although approximately 37.3% of nonhispanic white women experience ipv in their lifetime,236 they received 224 see goodmark, domestic violence, supra note 22, at 27. 225 id. 226 id. 227 michael l. benson & greer l. fox, concentrated disadvantage, economic distress, and violence against women in intimate relationships 3-3 – 36 (2004), https://www.ojp.gov/pdffiles1/nij/199709.pdf [https://perma.cc/gc8y-czgj]. 228 see goodmark, domestic violence, supra note 22, at 22. 229 id. 230 id. at 27. 231 for information on vawa’s funding structure and its grant programs, see section i.c.1 of this paper, aren’t i a woman deserving of justice? restructuring vawa’s funding structure to create racial and gender equity. 232 see dep’t of just. ovw, stop 2016 report, supra note 190, at 85. 233 id. 234 id. 235 id. 236 s.g. smith et. al., the national intimate partner and sexual violence survey 2010–2012 state report, control of the centers for disease control and 2023] aren’t i a woman deserving of justice 881 more services on average. these victims are overserved relative to the percentage they occupy as victims, which may mean that others are being underserved. in the same years mentioned above, only 23% of black victims benefitted from these services, and the majority of the black victims were women.237 as noted, black women make up the vast majority of ipv victims yet received less aid on average than white women. the provision of aid to any victim of ipv is crucial and beneficial. however, when there exists a disparity in who receives remedies, the program and vawa are not advocating on behalf of all survivors. ultimately, this inequitable service provision disadvantages black women subjected to ipv. even if race and gender disparities are removed from consideration, stop’s funding still is not adequately providing services to victims. a 2018 national crime victims’ rights resource reported, “in more than 80% of intimate partner violent victimizations in 2015, the victim did not receive assistance from victim service agencies.”238 additionally, even though victim-centered services organizations receive 30% of stop funding, these organizations are still influenced by law enforcement. in 2013 and 2014, 46% of community agencies and organizations reported meeting weekly or monthly with law enforcement, 40% with the prosecutor’s office, and only 30% reported weekly and monthly interactions with social services organizations.239 d. additional inefficiencies of the stop program stop also contains victim-centered provisions that would benefit black women subjected to abuse, but they are not well-funded. the program contains the provision of shelters and beds to ipv survivors, which is a significant need for black women as they disproportionately experience some of the highest rates of economic insecurity.240 this economic insecurity undermines their ability to afford housing and thus makes some black female ipv survivors dependent on their abusers.241 stop’s funding seemingly mitigates this issue and gives black women and other survivors a pathway to housing security. in 2013 and 2014, stop funding allowed an annual average of 1,135 victims to receive 346,919 transitional housing bed nights and an annual average of 21,067 victims to receive 1,938,613 emergency shelter bed nights.242 nevertheless, housing is by far the one of the most common unmet need by ipv victims annually.243 donna coker, prevention 120 (2017), https://www.cdc.gov/violenceprevention/pdf/nisvsstatereportbook.pdf [https://perma.cc/u7pz-ls74]. 237 see dep’t of just. ovw, stop 2016 report, supra note 190, at 85. 238 intimate partner violence, office of victims of crime (2018), https://ovc.ojp.gov/sites/g/files/xyckuh226/files/ncvrw2018/info_flyers/fact_sheets/2018ncv rw_ipv_508_qc.pdf [https://perma.cc/64e8-delw]. 239 dep’t of just. ovw, stop 2016 report, supra note 190, at 33. 240 see richie, supra note 1, at 1. 241 see generally domestic violence and homelessness, aclu (2006), https://www.aclu.org/sites/default/files/pdfs/dvhomelessness032106.pdf [https://perma.cc/ k6w9-jk9t] (“poor women, who are more vulnerable to homelessness, are also at greater risk of domestic violence. poverty limits women’s choices and makes it harder for them to escape violent relationships.”). 242 dep’t of just. ovw, stop 2016 report, supra note 190, at 87. 243 see generally nnedv’s 14th annual domestic violence counts report illuminates ongoing gaps in services and need for policy changes, national network to end domestic violence (march 10, 2020), https://nnedv.org/latest_update/nnedvs-14th882 colum. j. race & l. [vol. 13:853 former battered women’s shelter worker and law professor, declared, “you look at the relatively minuscule amount of money going to transitional housing compared to criminal justice and it’s outrageous.”244 in 2012, vawa’s funding for transitional housing was about one-fifth the total allocated for law enforcement.245 thus, the stop program is not providing a sufficient amount of housing, and this further marginalizes black female survivors. e. the effect of criminalization on deterring abuse additionally, stop may also be ineffective as studies have failed to find that laws that criminalize ipv actually deter abuse, and in some instances, these laws increase abuse.246 goodmark states, “but after twenty-six years of public funding [through vawa], it appears that criminalizing intimate partner violence may not lower incidence rates.”247 for example, in quincy, massachusetts, a jurisdiction that “aggressively” enforced ipv laws, recidivism rates were high primarily because criminalization failed to prevent repeat abusers from engaging in abusive behavior.248 additionally, in a review of nineteen studies that measured the recidivism of batterers, social scientists found that the recidivism rate was 40%.249 another report found that arrests increase the frequency of ipv in the long run among offenders.250 b. the funding differences between vawa’s improving criminal justice responses program and culturally specific services program a comparative analysis of two additional grant programs illustrates that vawa does contain funding of victim services, but the allocations to criminal enforcement dwarf this funding. unlike vawa’s stop program, the improving criminal justice responses program (icjr), formerly known as the grants to encourage arrest and enforcement of protection orders program, is a discretionary program. 251 icjr is vawa’s second annual-domestic-violence-counts-report/ [https://perma.cc/usv9-p878] (“victims made 11,336 requests for services—including emergency shelter, housing, transportation, childcare, legal representation, and more—that could not be provided because programs lacked the resources to meet victims’ needs.”). 244 kate pickert, what’s wrong with the violence against women act, time (feb. 27, 2013), https://nation.time.com/2013/02/27/whats-wrong-with-the-violence-againstwomen-act/ [https://perma.cc/rg5u-xcn5]. 245 2012 biennial effect report to congress on the effectiveness of grant programs under the violence against women act, dep’t of just., office on violence against women 250 (2012) [hereinafter dep’t of just. ovw, 2012 biennial], https://www.justice.gov/sites/default/files/ovw/legacy/2014/03/13/2012-biennial-report-tocongress.pdf [https://perma.cc/4y9t-bwhc]. 246 see goodmark, domestic violence, supra note 22, at 24. 247 leigh goodmark, beyond criminalizing domestic violence, transform harm (march 27, 2021) [hereinafter goodmark, beyond criminalizing], https://transformharm.org/ ab_resource/beyond-criminalizing-domestic-violence/ [https://perma.cc/fa7p-k9dv]. 248 goodmark, domestic violence, supra note 22, at 25. 249 jeffrey fagan, the criminalization of domestic violence: promises and limits 19 (1995), https://www.ojp.gov/pdffiles/crimdom.pdf [https://perma.cc/m25t-rtr9]. 250 lawrence w. sherman et. al., the variable effects of arrest on criminal careers: the milwaukee domestic violence experiment 139 (1992), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6733&context= jclc [https://perma.cc/w358-6prn]. 251 34 u.s.c. §§ 10461-10465 (2020). 2023] aren’t i a woman deserving of justice 883 largest grant program, receiving $53,000,000 in the fiscal year 2019.252 in comparison, the culturally specific services program (cssp), another discretionary program, received $7,550,000 in the same fiscal year.253 cssp is fairly representative of vawa’s other underfunded grant programs that do not heavily fund the legal system.254 cssp is also distinctive because it is a vawa program that is specifically related to minority ipv victims.255 since icjr and cssp are discretionary programs and thus do not uniformly operate in all jurisdictions, they cannot be analyzed in the same manner as the stop program. this comparative analysis is meant to illustrate how vawa prioritizes enforcement-focused grant programs to the detriment of programs focused on responding to the economic and social needs of underserved communities. the statutory purposes of icjr and cssp are pertinent. icjr encourages partnerships between the criminal system and local, state, and tribal governments and courts.256 the first purpose area for which icjr funds can be used is “to implement proarrest programs and policies in police departments, including policies for protection order violations and enforcement of protection orders across state and tribal lines.”257 icjr funds can also be used for twenty-two other purposes.258 the purpose of icjr is to focus on enforcement by ensuring that ipv is treated as a serious violation of criminal law.259 on the other hand, cssp is intended to create opportunities for culturally specific community-based organizations to develop culturally-sensitive strategies that enhance access to services and 252 see sacco, supra note 21, at 12. 253 id. at 13. 254 id. at 13 (noting that the training and services to end violence against women with disabilities grant program received $6,000,000, rape survivor child custody act received $1,500,000, research and evaluation on violence against women received $3,500,000 in 2018). 255 dep’t of just. ovw, stop 2016 report, supra note 190, at 18 (“provide culturally specific services and training to underserved communities based on factors such as race, ethnicity, language, sexual orientation, or gender identity”). 256 id. at 33—51 (explaining the different purpose areas under icjr). 257 ovw fiscal year 2021 improving criminal justice responses to domestic violence, dating violence, sexual assault, and stalking grant programsolicitation 5—6, dep’t of just., office on violence against women (2021) [hereinafter dep’t of just. ovw, 2021 dv responses]. 258 id. at 6—8; the following are some of the purpose areas included under icjr: centralize and coordinate police enforcement, prosecution, or judicial responsibility for domestic violence, dating violence, sexual assault, and stalking cases in teams or units of police officers, prosecutors, parole and probation officers, or judges; coordinate computer tracking systems and provide the appropriate training and education about domestic violence, dating violence, sexual assault, and stalking to ensure communication between police, prosecutors, parole and probation officers, and both criminal and family courts; strengthen legal advocacy service programs and other victim services for victims of domestic violence, dating violence, sexual assault, and stalking, including strengthening assistance to such victims in immigration matters; educate federal, state, tribal, territorial, and local judges, courts, and court-based and court-related personnel in criminal and civil courts (including juvenile courts) about domestic violence, dating violence, sexual assault, and stalking and to improve judicial handling of such cases. 259 id. at 5. 884 colum. j. race & l. [vol. 13:853 resources for victims of racial and ethnic minority groups.260 cssp includes eight purpose areas.261 1. the disparate number of victims served between icjr and cssp the funding disparities between the two grant programs translate to a disparity in the number of victims served. in 2018, the icjr grantees reported serving 39,632 victims during each sixth-month reporting period.262 in contrast, only 2,886 victims were served by the cssp program in 2018.263 this stark difference is troublesome, especially for black female survivors who are disproportionately impacted by criminalization. the limited number of victims served by cssp, as opposed to icjr, further marginalizes black women by reducing their access to services due to poor funding. the increase in victims served by cssp could diminish this reality for black women. minority female survivors of ipv experience significant barriers to seeking support, which is why the provision of services to the most victims by cssp is necessary. for example, black and latina female survivors bear an additional obstacle in seeking support as these two communities have the highest rates of financial insecurity and asset poverty.264 additionally, black women have fewer economic resources and less social capital, while they experience more social stigma and male violence.265 in turn, this limits black women’s access to social, legal, and medical services.266 on the other hand, as icjr poses risk to black women, cssp could fill in that gap by pairing black women with culturallysensitive organizations. one of the areas in which cssp funds can be used is to increase communities’ access to culturally specific resources and 260 ovw fiscal year 2020 grants to enhance culturally specific services for victims of domestic violence, dating violence, sexual assault, and stalking program 1, dep’t of just., office on violence against women (2019) [hereinafter dep’t of just. ovw, 2020 cssp grants], https://www.justice.gov/ovw/ page/file/1256526/download [https://perma.cc/be3r-4lu8]. 261 id. at 2; the following are some of the purpose areas included under cssp: working with state and local governments and social service agencies to develop and enhance effective strategies to provide culturally specific services to victims of domestic violence, dating violence, sexual assault, and stalking; increasing communities’ capacity to provide culturally specific resources and support for victims of domestic violence, dating violence, sexual assault, and stalking crimes and their families; strengthening criminal justice interventions, by providing training for law enforcement, prosecution, courts, probation, and correctional facilities on culturally specific responses to domestic violence, dating violence, sexual assault, and stalking; enhancing traditional services to victims of domestic violence, dating violence, sexual assault, and stalking through the leadership of culturally specific programs offering services to victims of domestic violence, dating violence, sexual assault, and stalking. 262 the 2018 biennial report to congress on the effectiveness of grant programs under the violence against women act, dep’t of just., office on violence against women 121 (2018) [hereinafter dep’t of just. ovw, 2018 biennial], https://www.justice.gov/ovw/page/file/1292636/download [https://perma.cc/8esz-ltyq]. 263 id. at 99. 264 see richie, supra note 1, at 11 (“[t]he generally accepted measures of economic and social well-being—income, homeownership, high school graduation rates—predict ongoing disadvantages and persistent poverty, which profoundly shaped women’s experiences of abuse.”). 265 see harrell r. rodgers, jr., black americans and the feminization of poverty: the intervening effects of unemployment, 17 j. of black studies 402, 404 (1987). 266 id. 2023] aren’t i a woman deserving of justice 885 support.267 however, this improvement is currently rendered unattainable by the severe underfunding of cssp, which results in the program’s inability to reach a sizable, or even decent, portion of minority survivors. this stark difference in funding between the two grant programs is also troubling due to icjr’s focus on pro-arrest policies. while the lack of funding to cssp inhibits its ability to reach a good portion of ipv survivors, icjr increases arrests by promoting mandatory arrest policies,268 which have historically affected black women and men. as a result of these laws, arrest rates in ipv cases have increased from 7% to 15% in the 1970s and 1980s to 30% or more in 2008.269 in vermont, 20% of the 2014 prison population was incarcerated due to ipv.270 this preference for increased funding of social services is also supported by the fact that “[c]riminalization most benefits those who feel safer as a result of interventions but are immune from most of its costs . . . . ”271 these costs fall heavily on low-income people and people of color, who are most likely to be involved in the criminal legal system due to inadequate legal representation and life-affirming social services.272 in conjunction, children are economically and emotionally harmed by their parents’ involvement in the legal system, and communities suffer from the removal of their members in noticeable numbers.273 to illustrate further the ways in which vawa’s limited resources and services negatively impact survivors, a 2019 national network to end domestic violence (nnedv) report that surveyed ipv survivors found unfavorable outcomes for minority communities.274 for example, the report found that minority survivors in new jersey remain with abusers because the available shelters do not accommodate their cultures sensitively.275 on a national level, the report stated that victims made 11,336 requests in one day for services, including emergency shelter and housing, that could not be provided due to a lack of resources.276 this finding is relevant and damaging to black women subjected to ipv. black women are most disproportionately affected by discriminatory housing practices and are 267 see dep’t of just. ovw, 2018 biennial, supra note 262, at 11 (one of the purposes of cssp is to describe “the barriers experienced by individuals from the identified culturally specific population who are victims of domestic violence, dating violence, sexual assault, and stalking while attempting to seek and access services.”). 268 see generally dep’t of just. ovw, 2021 dv responses, supra note 257, at 18 (“state, unit of local government, and tribal government applicants must certify that their laws or official policies: encourage or mandate arrests of domestic violence offenders based on probable cause that an offense has been committed.”). 269 elise inouye, mandatory arrests – a double-edged sword, 15 university of hawaii l. rev. 33, 33 (2017) https://hilo.hawaii.edu/campuscenter/hohonu/volumes/ documents/mandatoryarrestsadouble-edgedsword.pdf [https://perma.cc/54d9-h5xz]. 270 goodmark, domestic violence, supra note 22, at 4. 271 id. at 32. 272 id. at 31. 273 id. at 32. 274 national network to end domestic violence, supra note 243, at 8 (“on september 12, 2019: there were 11,336 requests for services that participating programs were unable to provide due to a lack of resources. . . . survivors often struggle to find affordable housing in urban areas”). 275 id. at 5. 276 id. at 8. 886 colum. j. race & l. [vol. 13:853 twice as likely to face eviction compared to white people in at least seventeen states.277 black women are also most likely to be displaced from their housing following domestic violence calls to the police.278 not only are survivors affected by this, but their children are as well. the children of women who face evictions are far more likely to live in substandard housing, which leads to poor health outcomes.279 thus, this finding advances the argument that vawa’s policies contribute to dangerous realities for black female survivors and their families. in tandem, other minority survivors experience disadvantages encouraged by vawa’s current funding structure. in regards to immigrant survivors, advocates have “noticed a definite chilling effect in immigrant survivors’ willingness to report, take legal action, and obtain life-saving resources for their families. there is much fear.”280 another advocate shared, “a trans survivor opted to seek counseling services through our program since we are able to work with local therapists who have traumaspecific training. unfortunately, we had already run out of funding for these counselors, and the survivor was unable to receive the help they needed.”281 these adverse outcomes for various minority communities demonstrate a lack of funding for the very victims whom vawa, particularly through its progressive reauthorizations, is meant to serve. social service-oriented programs may be better in addressing ipv generally as it pertains to minority survivors and black female survivors specifically because these programs would create solutions that address the different, nuanced, and complex causes of ipv. through various anecdotes and statistics, as well as an analysis of stop, icjr, and cssp, this part has shown that vawa’s funding priorities are ineffective and injurious to black women. “the overreliance on criminalization tips the programmatic and policy scales in ways that are harmful to people subjected to abuse, their partners, their families and their communities and prevents the development of a menu of options,” said goodmark.282 it is time for a new, multifaceted solution that recognizes that there is “no one-size-fits-all solution to the problem of intimate partner violence.”283 iii. the fiscal road to racial and gender equity virtually none of the provisions under any vawa reauthorization focus on the reality that vawa’s funding priorities disproportionately impact black female survivors. this note argues that the best solution is a two-pronged approach. first, a legislative restructuring that reduces the funding allocated to law enforcement and prosecutors under stop and icjr while increasing the allocation to cssp will solve the problems that 277 chabeli carrazana & ko bragg, americans were told to stay home. black women are most at risk of losing theirs., the 19th (dec. 21, 2020), https://19thnews.org/2020/12/eviction-moratorium-black-women-housing/ [https://perma.cc/ p56k-5pbx]. 278 id. 279 id. 280 national network to end domestic violence, supra note 243, at 11. 281 id. at 13. 282 goodmark, domestic violence, supra note 22, at 10. 283 id. 2023] aren’t i a woman deserving of justice 887 stem from vawa’s funding priorities. secondly, the introduction of economic and housing programs will be salient to this approach as these initiatives target the crucial needs of black female survivors. section iii.a discusses why the best solution to this problem is for congress to introduce a revised appropriations bill, which will create funding for the proposed economic and housing programs. section iii.b explains how this funding reconfiguration will improve the stability of black female survivors. finally, section iii.c proposes specific initiatives that the new funding structure will prioritize. a. restructuring the current funding distributions of stop, icjr, and cssp is necessary to mitigate the inequities exacerbated by vawa 1. restructuring vawa’s funding priorities best serves the intent and purpose of vawa vawa provides for some culturally specific services to members of underserved communities, but none of these provisions are specifically tailored to black female survivors. the law’s most recent reauthorizations (in 2005 and 2013) expanded the purpose areas of several vawa grants by addressing the specific needs of battered immigrants, native americans, and other minority communities.284 for example, vawa 2005’s sexual assault services program introduced culturally specific resources to assist minorities victimized by sexual assault.285 additionally, the law’s 2013 reauthorization granted authority to native tribes to enforce protection orders over any person.286 the 2021 reauthorization of vawa, which is awaiting senate approval, introduces the most impactful changes for minority survivors.287 this proposal calls for an increase of $40,000,000 in authorized funding for culturally specific organizations and measures to ensure that underserved populations are not prevented from accessing grants.288 it also requires culturally competent training of healthcare providers that includes lessons 284 see john conyers jr., the 2005 reauthorization of the violence against women act why congress acted to expand protections to immigrant victims, 13 violence against women 457, 457 (2007), https://niwaplibrary.wcl.american.edu/wp-content/uploads/ 2015/pdf/conf-vawa-art-vawa2005reauthorization.pdf [https://perma.cc/ya3x-m8q7] (provides an “overview of the history of congressional involvement with the violence against women act’s (vawa) provisions to protect immigrant victims of domestic violence”); see also office on violence against women (ovw) vawa 2013 summary: changes to ovwadministered grant programs, dep’t of just., office on violence against women 4 (2013) [hereinafter dep’t of just. ovw, vawa 2013 summary], https:// www.justice.gov/sites/default/files/ovw/legacy/2014/06/16/vawa-2013-grant-programssummary.pdf [https://perma.cc/7ygl-7xvz] (“refines focus of program by redefining ‘culturally specific’ to mean primarily directed toward racial and ethnic minority groups as defined in section 1707(g) of the public health service act (‘american indians (including alaska natives, eskimos, and aleuts); asian americans; native hawaiians and other pacific islanders; blacks; and hispanics’”). 285 conyers, supra note 284, at 458. 286 see dep’t of just. ovw, vawa 2013 summary, supra note 284, at 6 (“reauthorizes funding for tribal sex offender and protection order registries”). 287 h.r. 1620, 117th cong. (2021). 288 id. 888 colum. j. race & l. [vol. 13:853 on systemic racism and equity.289 despite the relevancy of these provisions, vawa’s provisions do not thoroughly address the needs of black women. although both programs fall short of provisions aimed explicitly at black female survivors, the stop and icjr programs have also been expanded to include culturally specific provisions. under stop, each state’s tribes are included for funding purposes, and the program sets aside 10% of victim services funding for culturally specific community-based organizations.290 the icjr program sets aside 5% of program appropriations for tribal coalitions grants.291 these expansions are compelling at first glance—and certainly a step in the right direction for minority communities—but stop and icjr’s current funding structures do not offer enough guidance for black female survivors or fully satisfy vawa’s intent. shifting the funding granted from stop and icjr’s enforcement-focused initiatives to culturally specific victim services under stop, icjr, and cssp will better serve survivors. 2. congress is best suited to restructure vawa’s current funding structure congress could introduce an approved appropriations bill. for this procedural reason alone, congress is best positioned to announce a restructured plan for these three grant programs. importantly, there is a strong likelihood that congress will take up this issue. congress passed the most recent vawa reauthorization in 2013.292 the last significant congressional action occurred in 2021 when the house approved vawa’s 2021 reauthorization.293 in march 2021, vawa was referred to the “committee on the judiciary, and in addition to the committees on financial services, ways and means, education and labor, energy and commerce, veterans' affairs, and natural resources” .294 congress reauthorized vawa in march 2022.295 however, each reauthorization to vawa has experienced lengthy congressional debates. so while an amendment by congress may be the surest way to introduce a reconfiguration of stop, icjr, and cssp funding, bipartisan debates may challenge this proposal. 289 id. 290 for more background on the mechanics of vawa’s stop program and how this program adversely affects black female survivors, see section ii.a.2 of this paper, stop contributes to harmful outcomes for black female victims and survivors. 291 34 u.s.c. §§ 10461(f) (2020). 292 see dep’t of just. ovw, 2018 biennial, supra note 262, at 7 (“reauthorized in 2000, 2005, and 2013, vawa articulates congress’s commitment to effective strategies for preventing and responding to domestic and sexual violence . . .”). 293 h.r. 1585, 116th cong. (2019–2020) (proposing amendments to vawa). 294 all actions: h.r.1620 — 117th congress (2021-2022), library of congress, https://www.congress.gov/bill/117th-congress/house-bill/1620/all-actions?s=1&r=92 [https://perma.cc/crd7-n3uq]. 295 fact sheet: reauthorization of the violence against women act (vawa), the white house (march 16, 2022), https://www.whitehouse.gov/briefing-room/statementsreleases/2022/03/16/fact-sheet-reauthorization-of-the-violence-against-women-act-vawa/ [https://perma.cc/63mz-ahzx] (last visited december 30, 2022). 2023] aren’t i a woman deserving of justice 889 3. potential difficulties that congress may face in announcing a restructured vawa the democrats and republicans who passed vawa did so partially because of vawa’s tradition of investigating and prosecuting violent crimes against women. vawa was also passed during a “tough on crime” period.296 due to this, there may be pushback to any calls to reduce vawa’s enforcement focus. on the contrary, vawa’s reauthorizations indicate that the law is evolving to be more victim-centered. for example, vawa 2005 created the first federal funding stream committed to direct services for sexual assault victims. the shift away from enforcement is also reflected in the 2021 version of the law.297 h.r.1620 focuses on restorative justice, instead of law enforcement, as a way to address victims’ needs. it adds purpose areas to lgbtq+ specific services that implement restorative practices “that are focused on victim autonomy, agency, and safety to provide resolution and restitution for the victim.”298 this version of the law also proposes ways to increase underserved populations’ access to grants. ultimately, although vawa’s origins are rooted in the criminal legal system, vawa’s expanded provisions indicate a move towards a less punitive and more restorative approach. vawa’s evolution indicates that policymakers and advocates are becoming aware of the fact that more victim services are needed. secondly, opposing political parties may pose challenges to this proposed funding reconfiguration. yet, this proposal has a strong likelihood of passing due to the country’s recent push to interrogate the historically negative relationship between the black community and the legal system.299 b. a legislative change should be reasonable within the context of vawa 1. funding changes proposed for the stop program congress should reduce the 50% of vawa funding allotted to law enforcement and prosecutors to 30%. then, congress should increase the funding allotted to victim services to 65%. within this percentage, 35% of the funding should be specifically allocated to culturally specific victim services. to increase the protection of black female survivors, this proposal recommends that 15% of the 35% should be allocated specifically to services and organizations aimed at empowering black female survivors. stop’s specific funding centered on black female survivors can provide proposals directly influenced by black female advocates, attorneys, survivors, and policymakers who speak to the needs facing this community. the remaining 30% should be set aside for general victim services that will 296 for more background on “tough on crime”, reference section i.b.4 of this paper, black women’s distrust of the criminal legal system. 297 see generally goodmark, violence against women act, supra note 16 (“for the first time, the act would pay for alternative justice measures designed to help victims of violence find justice without requiring them to turn to the legal system.”). 298 h.r. 1620, 117th cong. (2021). 299 see justin worland, america's long overdue awakening to systemic racism, time (jun. 11, 2020), https://time.com/5851855/systemic-racism-america/ [https://perma.cc/285m-x2uk]. 890 colum. j. race & l. [vol. 13:853 benefit all survivors. the 5% of funding currently granted to the courts can remain intact. 2. funding changes proposed for the icjr and cssp programs icjr’s current $53,000,000 in funding should be reduced by $20,000,000, and the remaining $33,000,000 in icjr funds should be attributed to cssp’s funding. additionally, the house-approved 2021 reauthorization of vawa proposed a $40,000,000 increase of cssp.300 this note argues that this $40,000,000 increase plus the remaining $33,000,000 from icjr’s funding should be added to cssp funding, bringing cssp’s newly proposed funding to $80,550,000.301 this note also argues that congress should allocate $35,000,000 of this funding specifically to victim services centered on black female survivors. this $35,000,000 may seem high; however, black female survivors are widely underserved by vawa so this figure is necessary to improve this community’s outcomes. this proposal may also benefit other survivors and the u.s. economy overall. a former labor secretary under former president bill clinton and the former commission of the financial crisis inquiry commission posited that investing in black women serves as “catalysts for economic growth and community development . . . and a win for the u.s. economy . . . .”302 by reducing the overall funding of icjr and shifting it to increase the funding of cssp, congress can diminish vawa’s contribution to the negative outcomes of black female survivors and increase the provision of services, economic stability, and protection of black women. although it is not certain that icjr’s current total allocation takes away from cssp’s, it is clear that the amount of people who are served by each program is considerably dissimilar.303 c. victim-centered services that could improve the status of black women subjected to abuse programs and services that directly address the specific needs of black female ipv survivors must also be implemented under these three programs in order for this proposed legislative change to adequately reduce the unfavorable outcomes of black women. studies have found that shortterm advocacy services were beneficial to black women following their exit from domestic violence shelters.304 thus, investing in long-term victimcentered services that are tailored to the needs of black female survivors could prevent ipv and provide access to black women who have already been subjected to abuse. 300 h.r. 1620, 117th cong. (2021). 301 this figure is reached by taking the sum of $7,550,000 (cssp’s 2019 enacted appropriations), $40,000,000, and $33,000,000. 302 alexis herman & heather murren, invest in black women to drive the economy forward, fortune (feb. 3, 2021), https://fortune.com/2021/02/03/black-womeneconomy-diversity-equity-inclusion/ [https://perma.cc/y8yn-85px]. 303 for more background on the difference in populations served, see section ii.b.1 of this paper, the disparate number of victims served between icjr and cssp. 304 cris m . sullivan & maureen h. rumptz, adjustment and needs of africanamerican women who utilized a domestic violence shelter, 9 violence and victims 275, 275 (1994), https://vaw.msu.edu/wp-content/uploads/2013/10/african-american-womenneeds-after-shelter.pdf [https://perma.cc/qk2q-wa9h]. 2023] aren’t i a woman deserving of justice 891 1. economic security programs to aid black women subjected to abuse funding economic programs for black women is pertinent due to the damaging relationship between black women, poverty, and ipv.305 as a result, vawa should fund back-to-school, back-to-work, and other initiatives that directly provide forms of financial security to battered black women. currently, many states provide educational grants to adult students who can return to vocational schools or college.306 these programs, such as new york’s college access challenge grant, dedicate grants to low-income adults and displaced workers.307 the proposed increased funding to culturally specific victim services could create similar programs that will allow battered black women to return to school to improve their employment prospects. relatedly, vawa’s funding should develop back-to-work programs. such initiatives will create funding for black female survivors who wish to establish and own small businesses. black women experience the highest rates of unemployment in the united states.308 in may 2020, the unemployment rate for black women reached almost 20%.309 back-to-work programs will be valuable as black women and women of color broadly have already shown to be among the group of fastest-growing female entrepreneurs in 2020 and 2021.310 caitlin mullen argued that this occurs because “need, not opportunity, drives many black women to become entrepreneurs if they feel they’ve been underpaid or left behind at conventional institutions.”311 this program would serve as an alternative to the back-to-school program as not all black women may have the time or resources to participate in formal education. the final economic security program this note recommends is a program that directly provides money to black female survivors. for black women who cannot return to formal education or create their own business, this program will increase their stability and reduce the likelihood of their victimization. the effects of the 2020 covid-19 stimulus relief checks illustrate the value of this recommendation. a study found that following the distribution of covid-19 stimulus relief checks, rates of ipv decreased 305 see richie, supra note 1, at 29 (“[r]esearch has . . . established a higher incidence rate of intimate partner violence for black women”). 306 grants for adult students, college scholarships, http:// www.collegescholarships.org/grants/adult.htm [https://perma.cc/7yy7-n3zx] (last visited on dec. 1, 2021). 307 id. 308 see jasmine tucker, it’s time to pay black women what they’re owed, national women's law center 1 (2020), https://nwlc.org/wp-content/uploads/2020/ 07/bwepd-2021-7.26.21.pdf [https://perma.cc/7gyv-5eh5] (“[t]he unemployment rate for black women reached 16.6% in may 2020 . . .”). 309 id. 310 ruth umoh, black women were among the fastest-growing entrepreneurs— then covid arrived, forbes (oct. 26, 2020), https://www.forbes.com/sites/ruthumoh/ 2020/10/26/black-women-were-among-the-fastest-growing-entrepreneurs-then-covidarrived/?sh=5c2010c36e01 [https://perma.cc/5sdz-dnfe]. 311 caitlin mullen, women of color drive new business growth during pandemic, bizwomen (apr. 14, 2021), https://www.bizjournals.com/bizwomen/news/latest-news/2021/ 04/minority-women-drive-business-growth-in-pandemic.html?page=all [https://perma.cc/ 4rmp-c5ty]. 892 colum. j. race & l. [vol. 13:853 in april 2020 because abused women directly received money.312 thus, this proposal may effectively attack institutionalized obstacles that black women face. this proposal poses challenges. first, it excludes the participation of non-black female survivors and non-female survivors who are just as likely to experience ipv or have already experienced ipv. secondly, it excludes black women who are above the poverty line. lastly, it could create disparate results between black women who are eligible for these three programs. for example, black women who live in rural or underserved areas may not have access to local schools or customers. although these challenges are relevant, these programs should still be adopted to address the economic factors that drive ipv against black women. 2. housing as a major provision to aid black female survivors due to black women’s high rates of evictions and homelessness and the relationship between housing and ipv, this note recommends providing long-term transitional housing to black female survivors. currently, vawa does contain provisions that provide housing support, but they are not sufficient.313 thus, this note argues that there should be increased funding for the creation of housing that is specifically available to black female survivors who are at risk of victimization due to housing insecurity. the brooks short-term housing facility in washington, d.c. could serve as a model.314 this funding reconfiguration coupled with culturally specific services ought to be adopted because it more thoroughly protects black female survivors while also balancing other survivors’ interests and society’s interest. iv. conclusion the intersection of race and gender discrimination has aggressively motivated the violence black women have faced in america. further exposing this community to state-sanctioned criminalization pushes black women into marginalization and keeps them there. in a country reflecting on its traditions and history, in order to make way for justice, attention must be paid to laws that inadvertently work to impede progress and equity. this two-pronged solution would benefit black female survivors by reducing the inequitable treatment and violence that they face. in turn, these benefits would reflect a society that works to protect, not discard, all individuals, including women like tiffany wright. 312 emily leslie & riley wilson, sheltering in place and domestic violence: evidence from calls for service during covid-19, 189 j. pub. econ. 3 (2020) (“the increase in domestic violence persisted for several weeks before attenuating around the middle of april”). 313 see goodmark, reimagining vawa, supra note 19, at 93 (“vawa could supplement existing sources of emergency funding for victims of violence to meet the immediate needs that come with leaving a violent relationship—e.g., deposits for rental housing, money for food or transportation.”). 314 the brooks short-term housing facility, friendship place, https:// friendshipplace.org/programs-outreach/ward-3-family-housing-facility/ [https://perma.cc/ jf4a-5fzj] (last visited jan. 10, 2022). columbia journal of race and law vol. 15 may 2025 no. 1 note deconstructing the gang menace: gang policing and police “expert” testimony in new york city t.j. braxton1 abstract in new york city, the gang member is feared, vilified, and romanticized. the new york city police department (nypd), the media, elected officials, and courts have all played a part in casting street gang members as some of the most dangerous people in society. but who exactly are these so-called gangsters? the answer is highly racialized: an overwhelming ninety-seven percent of the nypd’s criminal group database (cgd) are black and latino men. although this disparity is harmful in itself, it represents only a part of the problem these men face. alleged gang members who are arrested and wish to contest their criminality at trial are faced with an insidious prosecutorial practice—the admission of nypd officers as gang “experts.” these experts infect the courtroom with racial bias, while judges are exceedingly deferential to them despite their problematic methods of policing and surveillance. their testimony is both unfairly prejudicial and unreliable, as it feeds off implicit biases and couples gang member stigmatization with the overbroad and extremely suspect evidence encapsulated within the cgd. in exploring this issue, this note will proceed in three parts. part i provides an overview of gang policing and prosecution in new york city, highlighting changes in policing tactics over time and the current law around police gang expert testimony. part ii outlines the racial implications of police gang expert testimony, focusing on prejudice and unreliability. part iii advocates for the admission of nonpolice gang experts to counteract these negative effects of police testimony. 1 j.d. candidate 2025, columbia law school. the author would like to thank professor amber baylor for supervising this note, as well as professor rebecca wexler for her guidance and instruction in evidence. the author would also like to thank saguna raina, ajée robinson, and the entire editorial staff of the columbia journal of race and law. 2025] deconstructing 1338 introduction ................................................................................................................... 1339 i. policing and prosecuting gang members in new york city ............................... 1346 a. history of gang policing in new york ............................................................ 1346 1. 20th century gang policing cycles of violence and differing responses 1346 2. 21st century gang policing floyd v. city of new york to operation crew cut ………………………………………………………………………………1350 3. the criminal group database (cgd) and the 2023 department of investigations report ........................................................................................................ 1353 b. gang prosecutions and police expert testimony ............................................. 1357 1. gang evidence in criminal prosecutions ..................................................... 1357 2. the admissibility and scope of police officers as gang “experts” ............ 1360 ii. the prejudicial effect and unreliability of police gang expert testimony ........ 1362 c. police gang expert testimony is unfairly prejudicial ..................................... 1364 1. implicit bias of testifying officers .............................................................. 1365 2. implicit bias of jurors ................................................................................... 1366 d. police expert testimony is unreliable ............................................................. 1369 1. overbroad gang identifications .................................................................... 1370 2. problematic indicators of gang membership in the cgd ............................ 1371 3. potential to convict the innocent under the gang member label .............. 1372 iii. an effective counterbalance: nonpolice gang experts .................................. 1374 e. the value of nonpolice gang experts ............................................................. 1376 1. police gang experts vs. nonpolice gang experts........................................ 1376 2. nonpolice gang expert testimony mitigates prejudice .............................. 1377 3. nonpolice gang experts expose unreliability ............................................. 1378 f. limitations of nonpolice expert testimony .................................................... 1379 1. issues finding and funding nonpolice experts ........................................... 1379 2. the ineffectiveness of nonpolice experts in a broader context ................. 1380 conclusion .................................................................................................................... 1380 1339 colum. j. race & l. [vol. 15:1337 introduction in new york city, the gang member is feared, vilified, and romanticized. the new york city police department (nypd), the media, elected officials, and courts have all played a role in casting street gang members as some of the most dangerous people in society.2 but who exactly are these so-called gangsters? the answer is highly racialized: an overwhelming ninety-seven percent of the nypd’s criminal group database (cgd) are black and latino men.3 young men, in particular, have been the primary subjects of police surveillance and criminal prosecution, as seventy-eight percent of the individuals included in the cgd were twenty-seven years old or younger at the time of their entry into the database.4 recent gang-related indictments have included children as young as sixteen.5 the nypd defines a gang as a criminal group with a common name or identifying symbol.6 despite a clear criminality requirement, the nypd adds individuals to the cgd without any evidence of criminal behavior.7 while many sociologists agree that criminal activity 2 see people v. e.s.b., 126 n.y.s.3d 615, 618 (n.y. ct. cl. 2020) (noting that gang violence is “an issue that is becoming increasingly worrisome within the community at large”); lisa evers, nyc's new gang culture: 'the body count is never enough', fox 5 new york (apr. 21, 2023), https://www.fox5ny.com/news/street-soldiers-thenew-gang-culture [https://perma.cc/3brt-zx6t] (suggesting that new york city gang culture promotes a “shoot on site” attitude where “the body count is never enough”); fighting gang violence in nyc, city of new york, https://www.nyc.gov/content/getstuffdone/pages/fighting-gang-violence [https://perma.cc/cv4f-upem] (last visited jan. 5, 2024) (highlighting mayor eric adams’s pledge to “take down the criminal enterprises that are creating the violence and death in our community”). 3 n.y.c. dep’t of investigation, an investigation into nypd’s criminal group database 34 (2023), https://www.nyc.gov/assets/doi/reports/pdf/2023/16cgdrpt.release04.18.2023.pdf [https://perma.cc/7ps5ztmd]. 4 id. at 35. 5 see samantha max, bronx district attorney charges 12 people with shootings, carjackings, armed robberies, gothamist (sept. 21, 2023), https://gothamist.com/news/bronx-district-attorney-charges-12-peoplewith-shootings-carjackings-armed-robberies [https://perma.cc/4jg2-mpnb] (“a dozen people, ranging from 16 to 22 years old, have been indicted in the bronx in connection with 23 violent incidents . . . .”). 6 see n.y.c. police dep’t, patrol guide procedure number 212-13: reporting gang-related criminal activity 1 (2019), https://www.nyc.gov/html/nypd/downloads/pdf/public_information/public-pguide2.pdf [https://perma.cc/vxb3-kew3]. for the full definition, see infra text accompanying note 85. 7 see jasmine johnson, note, gang databases: race and the constitutional failures of contemporary gang policing in new york city, 94 st. john’s l. rev. 1033, 1038 (2020) (“[t]he nypd’s definition of “gang” has a requirement of criminal activity, but one can be included as a ‘gang member’ in the nypd gang database without proof of any such criminality); infra text accompanying notes 85–86. 2025] deconstructing 1340 is the premier source of social cohesion for gangs,8 alternative gang definitions intentionally omit the criminality criterion.9 by decoupling gangs and criminality, this conception allows gangs to be viewed through a social constructionist framework.10 from this perspective, gangs are better understood as a form of safety and a form of resistance deployed by marginalized youth to combat their social disempowerment.11 rather than being defined by criminal behavior, gangs offer youth a sense of belonging and opportunity that impoverished families and underfunded schools do not.12 this gang conceptualization recognizes how oppressive social structures create the conditions for gang association, and it also avoids further criminalizing minority and disadvantaged youth who are perceived, whether accurately or not, to be gang members.13 a 2022 study conducted by rachel swaner sheds light on the social constructionist theory of gangs and the role of gang membership in new york city.14 interviews with 287 young new york city gang members revealed that the participants used gangs as a means of survival, 8 see caylin louis moore & forrest stuart, gang research in the twenty-first century, 5 ann. rev. criminology 299, 303 (2022) (noting that most scholars define gangs in relation to their criminality). malcolm klein and cheryl maxson, for example, define street gangs “as any durable, street-oriented youth group whose involvement in illegal activity is part of its group identity.” street gang patterns and policies 4 (2006). 9 see, e.g., james f. short, jr., gangs and adolescent violence 3 (1996), https://www.researchgate.net/publication/246286976_gangs_and_adolescent_violence [https://perma.cc/p5smtxux] (defining gangs as “non-adult-sponsored, self-determining groups that demonstrate continuity over time”). 10 see moore & stuart, supra note 7, at 304 (observing that the noncriminal gang conceptualization “facilitates novel explanations of gang formation and behavior, particularly those rooted in social constructionist and interactionist frameworks”). 11 see id. (citing robert garot, who you claim: performing identity in schools and on the streets 2 (2010)) (“[g[ang association is a form of performance deployed by marginalized youth to resist the social statuses imposed upon them by dominant social institutions.”). 12 see robert garot, who you claim: performing identity in schools and on the streets 2 (2010) (“[g]angs offer youth a street family, a sense of belonging, even hope and opportunities for ‘decisive risk-taking’ that impoverished families struggling with addictions and under-funded schools may not.”). 13 see moore & stuart, supra note 7, at 305 (“[c]ritics warn that definitions based on delinquency risk further net-widening and criminalization of minority and disadvantaged youth perceived . . . as gang members.”) (citing g. david curry, the logic of defining gangs revisited, in the handbook of gangs 7, 14 (scott h. decker & david c. pyrooz eds., 2015)). 14 see rachel swaner, ‘we can’t get no nine-to-five’: new york city gang membership as a response to the structural violence of everyday life, 30 critical criminology 95 (2022). 1341 colum. j. race & l. [vol. 15:1337 not strictly as a means of engaging in criminal activity.15 their decision to join a gang “was largely a reaction to the inequities and humiliations they face on a daily basis from the police, unemployment, and poverty.”16 although joining a gang was an effort “to survive in the face of these daily injustices and threats to their existence,” doing so only compounded “their vulnerability to being discriminated against, getting caught up in the criminal legal system, and experiencing interpersonal violence.”17 while some of the participants did resort to selling drugs and carrying weapons, many of them also sought “better lives, lives without guns, lives where they can get jobs that allow them to support their families, and lives where they reside in safe communities.”18 swaner’s study illustrates how one could seek out gang membership for protection, opportunity, and belonging without necessarily engaging in criminal activity.19 the criminal justice system, however, continues to reinforce a hostile and punitive world for gang members.20 the nypd would benefit from a more nuanced understanding of gangs if it wanted to address the root cause of any real or perceived gang problem. but it is unclear whether the nypd’s goal is crime prevention or merely intelligence gathering.21 there is no question that gang violence devastates the communities where it takes place.22 however, the nypd’s response 15 see id. at 103 (finding that the participants joined gangs for physical protection and the fulfillment of economic and emotional needs). 16 id. at 107. 17 id. 18 id. 19 see id. at 104 (highlighting a participant’s statement that he “love[s] the brotherhood of being in a gang” because they “actually look out for each other” and “try to find support systems for each other outside of just the violence”). 20 id. at 107. 21 see erik nelson, rap on trial: race, lyrics, and guilt in america 145 (2019) (“both research and case studies reveal that gang units are primarily focused on intelligence gathering rather than say, prevention.”). 22 see ashley southall, as shootings increased, n.y.c returned to disputed tactic: gang takedowns, n.y. times (aug. 26, 2021), https://www.nytimes.com/2021/08/26/nyregion/nypd-shootings-gang-arrests.html (on file with the columbia law review) (noting that many of the shootings committed during the pandemic crime spike were linked to gangs, and that these shootings sometimes resulted in the deaths of innocent bystanders). despite a significant decline in shootings in the first half of 2023, a recent state-wide (yet very small sample-sized) poll found that seventy 2025] deconstructing 1342 to this devastation is equally destructive, as it upholds longstanding practices of racial surveillance and criminalization. not only that, but the nypd’s flawed conception of gang membership and activity is given "expert” authority in the courtroom, and the wealth of gang intelligence that the nypd gathers is weaponized against criminal defendants without constraint. while the admission of police officers as gang experts is a powerful prosecutorial tool, it is tainted by prejudice and unreliability. it is but another way racism makes a home within the criminal justice system, and another tactic used to criminalize black and latino men by virtue of their identity and associations. as suggested previously, surveillance is the foundation of the nypd’s gang policing model.23 although the nypd touts itself as a pioneer of “precision policing,”24 its gang surveillance methods are far from precise. the identification of an individual as a gang member is facilitated by racial profiling akin to stop-and-frisk,25 and underlying gang investigations are corrupted by problematic tools, such as the cgd. after audits of similar gang databases in los percent of new york city residents were concerned about becoming the victim of a crime. see nypd announces citywide crime statistics for july 2023, nypd (aug. 3, 2023), https://www.nyc.gov/site/nypd/news/p00088/nypdcitywide-crime-statistics-july-2023 [https://perma.cc/xv72-28uh] (stating that there has been a “26.5% decrease in shooting incidents citywide through the first seven months of calendar 2023 compared to the same period a year ago”); siena college research institute, siena college poll conducted by the siena college research institute june 4 12, 2023, https://scri.siena.edu/wp-content/uploads/2023/07/ics0623-crosstabs.pdf [https://perma.cc/7p68-vtzl] (last visited jan. 6, 2024) (noting that seventy percent of the polled new york city residents were concerned about becoming the victim of a crime). but see ginia bellafante, crime is down. why don’t new yorkers feel safe?, n.y. times (aug. 5, 2023), https://www.nytimes.com/2023/08/04/nyregion/new-york-crime-bernhard-goetz.html (on file with the columbia law review) (suggesting that “the question of how bad crime actually is versus how bad it is perceived to be is complicated by the occurrence of rare but terrifying incidents”). 23 see k. babe howell, gang policing: the post stop-and-frisk justification for profile basedpolicing, 5. u. denv. crim. l. rev. 1, 2 (observing that the nypd has adopted a surveillance-based policing model in regard to suspect populations since 2001). 24 n.y.c. police dep’t, the way forward 9, https://www.nyc.gov/assets/nypd/downloads/pdf/publications/nypd-the-way-forward.pdf [https://perma.cc/5w5mhp57] [hereinafter n.y. police dep’t, the way forward] (last visited jan. 6, 2024) (stating that the nypd has pioneered precision policing since 2014). 25 see dorothy e. roberts, foreward: race, vagueness, and social meaning of order-maintenance policing, 49 j. crim l. & criminology 775, 786 “(identification of someone as a gang member is highly associated with his race.”); johnson, supra note 6, at 1047–48 (highlighting the similarities between the nypd’s stop and frisk practices and their use of gang databasing). for a discussion on gang databasing’s outgrowth from stop and frisk, see infra section i.a.2. 1343 colum. j. race & l. [vol. 15:1337 angeles and chicago revealed a myriad of fundamental deficiencies, including racial bias, falsified data, and a lack of procedural mechanisms to challenge one’s identification in the database, numerous groups called for an audit of the cgd.26 the new york city department of investigation (doi) agreed to conduct an audit in 2018.27 after months of delay,28 the doi released its report in april 2023.29 the report identifies a number of dangerous and alarming practices around the nypd’s use and operation of the database, and it makes seventeen recommendations that address problems related to public transparency, criteria for inclusion, the inclusion of minors, and more.30 although the report implicitly recognizes the ways in which the cgd facilitates the racialized surveillance and oppression of new yorkers, it concludes that the cgd is not a source of harm.31 its critics, however, argue that this conclusion is utterly false— “the truth is simple: the nypd must abolish this database.”32 as flawed as the cgd may be, the database is only part of the larger problem that targeted black and latino men of new york city face. alleged gang members who are arrested and wish to contest their criminality at trial are faced with an insidious prosecutorial practice— the admission of nypd officers as “gang experts.” under new york evidence law, gang evidence can be admitted for a wide variety of reasons and with few restrictions.33 as for the scope of a police officer’s testimonial evidence on gangs, officers can speak to anything beyond 26 groups urge groups urge nypd inspector general to audit the nypd “gang database.”, human rights watch (sept. 22, 2020), https://www.hrw.org/news/2020/09/22/groups-urge-nypd-inspector-general-auditnypd-gang-database [https://perma.cc/497z-xmll]. 27 arya sundaram, report on nypd's gang database, promised for months, has been delayed, gothamist (jan 9. 2023), https://gothamist.com/news/report-on-nypds-gang-database-promised-for-months-has-been-delayed [https://perma.cc/cv5b-gfq4]. 28 id. 29 n.y.c. dep’t of investigation, supra note 2. 30 id. at 8–10. 31 id. at 3. 32 ldf responds to department of investigation’s findings regarding the nypd’s criminal group database, naacp legal defense fund (apr. 18, 2023), https://www.naacpldf.org/press-release/ldf-responds-todepartment-of-investigations-findings-regarding-the-nypds-criminal-group-database/ [https://perma.cc/5x9t-p6jp]. 33 see infra section i.b.1. 2025] deconstructing 1344 the knowledge of the ordinary juror.34 this generous standard is even more alarming considering these officers rely on the suspect information contained within the cgd,35 and approximately 10,000 officers have access to the cgd’s activation data.36 overall, the nypd’s use and operation of the cgd combined with the courtroom practice of admitting police officers as gang experts has created serious criminalization concerns, particularly for black and latino men. with the pretext of widespread gang crime and a public misconception that gang membership alone is indicative of violent criminality, the nypd has utilized a policing tactic that is race-based in practice, yet race-neutral on its face.37 even further, this same racial bias is then translated into the courtroom via the use of police expert witnesses. judges are exceedingly deferential to these experts despite their inherently suspect methods of policing and surveillance, and their testimony which can cover an exceedingly wide scope of information.38 this creates two major problems. first, this testimony is unfairly prejudicial, as it allows prosecutors to capitalize on the implicit biases of both testifying officers and jurors, and further fuel the racialized stigma surrounding gang membership and activity. second, this testimony is unreliable, as it risks supporting the conviction of potentially innocent, non-gang 34 see people v. inoa, 34 n.e.3d 839, 845 (holding that a police officer’s expert testimony on the meaning of uncoded language was within the knowledge of ordinary jurors and thus amounted to a usurpation of the jury’s factfinding role); infra section i.b.2. 35 see joshua d. wright, the constitutional failures of gang databases, 2 stan. j. civ. rts. & civ. liberties 115, 117 (2005) (“at trial, expert testimony from peace officers testifying the defendant is documented is typically sufficient to establish membership. prosecutors, expert witnesses, judges, and juries rely heavily on the accuracy of the information in gang databases.”). 36 n.y.c. dep’t of investigation, supra note 2, at 4. 37 see johnson, supra note 6, at 1042 (noting how the façade of racial neutrality shields the nypd’s gang policing tactics from public and judicial scrutiny) (citing k. babe howell, gang policing: the post stop-and-frisk justification for profile-based policing, 5 u. denv. crim. l. rev. 1, 4 (2015)). 38 see sara hildebrand, racialized implications of officer gang expert testimony, 92 miss. l. j. 155, 168– 78 (2022) (arguing that judges are excessively deferent to police gang experts and that these experts frequently provide overbroad opinions); anne lvovsky, the judicial presumption of police expertise, 130 harv. l. rev. 1995, 2001 (2017) (suggesting that judge’s broad embrace of police expertise is a reflection of structural biases). 1345 colum. j. race & l. [vol. 15:1337 affiliated individuals by coupling the same stigmatization tactics with the overbroad and extremely suspect evidence included within the cgd. the obvious solutions to these problems are to abolish the cgd and prohibit police officers from testifying as gang experts. however, these solutions may not be feasible. the nypd has a history of opposing and obstructing any meaningful reform,39 and the doi’s “no harm” conclusion regarding the cgd likely protects it from further government scrutiny.40 additionally, the admission of police officers as expert witnesses is a deeply rooted practice that judges will likely be unwilling to change given the professional status of the police force and structural biases within the criminal justice system.41 there is, however, a solution that mitigates the prejudicial effect of police gang expert testimony and exposes its unreliability, which is the introduction of nonpolice gang experts by the defense. this note will proceed in three parts. part i provides an overview of gang policing and prosecution in new york city, highlighting changes in policing tactics over time and the current law on police gang expert testimony. part ii outlines the racial implications of police gang expert testimony, focusing on prejudice and unreliability. part iii advocates for the admission of nonpolice gang experts to counteract the prejudicial effect and unreliability of police testimony. 39 victor dempsey & alex s. vitale, why we should abolish the nypd's gang database, not reform it, gotham gazette (may 2, 2023), https://www.gothamgazette.com/130-opinion/11976-abolish-nypd-gang-databasereform [https://perma.cc/ps85-bxza]. 40 see n.y.c. dep’t of investigation, supra note 2, at 3, 56–7 (finding no evidence of harm stemming from the cgd and explicitly refuting the contention that the cgd targets categories of individuals rather than the perpetrators of specific crimes). 41 see lvovsky, supra note 37, at 1999–2001 (observing that judicial deference to police expertise expanded significantly in the twentieth century as the police force professionalized, which bolstered police discretion, widened the scope of criminal law, and reinforced structural biases). 2025] deconstructing 1346 i. policing and prosecuting gang members in new york city as noted by leading gang scholar k. babe howell, “new york city has always had gangs and will likely always have gangs.”42 yet, even though the nypd claims that gun crime is driven by gangs and street crews,43 new york city’s gang problem is minimal in comparison to other large cities.44 scholars have noted that the city’s lack of organized gangs and minimal gang violence may be the result of non-law enforcement responses to gang activity in the past, such as social worker intervention and mediation.45 nevertheless, gang policing in new york city has evolved into a system of surveillance-based oppression. extending from this system is the practice of admitting police officers as gang experts in criminal prosecutions. through this “expertise”, the nypd’s flawed conceptions of gang membership and gang life are weaponized against criminal defendants. section i.a outlines the history of gang policing in new york city beginning in the postwar era. section i.b explains the role and scope of police gang expert testimony in criminal prosecutions. a. history of gang policing in new york 1. 20th century gang policing cycles of violence and differing responses over the last century, new york city has experienced successive and pronounced cycles of gang violence.46 with each cycle, law enforcement’s response has varied significantly. one such cycle occurred from the mid-1940s through the mid-1960s, as racial segregation and the 42 howell, supra note 22, at 5. 43 see nypd announces citywide crime statistics for march 2023, n.y.c. police dep’t (apr. 6, 2023), https://www.nyc.gov/site/nypd/news/p00077/nypd-citywide-crime-statistics-march-2023 [https://perma.cc/5lxwjp2l] (stating that “[d]ata shows that gun crime in new york city has been driven by gangs and street crews”). 44 see howell, supra note 22, at 5 (observing that “new york city has a far smaller gang problem than other large cities” based on gang offense data). 45 id. see also infra text accompanying notes 50–52. 46 judith green & kevin pranis, gang wars: the failure of enforcement tactics and the need for effective public safety strategies 15 (2007), https://justicepolicy.org/wp content/uploads/justicepolicy/documents/0707_rep_gangwars_gc-ps-ac-jj.pdf [https://perma.cc/2x6p-89jg]. 1347 colum. j. race & l. [vol. 15:1337 city’s postwar economic transformation contributed to widespread youth gang violence.47 similar to social circumstances contributing to gang membership today, many minority families were excluded from well-paying jobs and forced into the poorest neighborhoods.48 this oppression created “competing groups of cynical youngsters of color who were well aware of the class, racial, and ethnic barriers that stood between them and opportunities for good jobs in the future.”49 the rate of youth-on-youth killings increased remarkably, and in response, the city turned to social work and street-level gang intervention rather than harsh law enforcement tactics.50 not only did social workers conduct mediation sessions between rival gangs, but they also organized athletic programs, provided resources for neighborhood social events, and even located job opportunities for individual gang members.51 these strategies were successful; by 1966, serious gang violence had largely abated, and the city’s gang intervention programs had proven effective in keeping violence at a minimum and diverting youth away from gang membership.52 the 1970s saw a revival in gang activity, particularly in the south bronx.53 the intractable poverty and segregation of the south bronx made it a breeding ground for gang violence, drug use, and overall community decay.54 while law enforcement proponents believe that a return to “quality of life” policing restored peace within the south bronx, former gang 47 id. for a more in-depth exploration of youth gangs in postwar new york city, see generally eric c. schneider, vampires, dragons, and egyptians kings: youth gangs in postwar new york (1999). 48 see green & pranis, supra note 45, at 15; swaner, supra note 13, at 107 (noting that unemployment and poverty contribute to gang membership in modern new york city). 49 green & pranis, supra note 45, at 15. 50 id. at 15–17. 51 id. 52 id. at 17. 53 id. at 18. 54 id. see also john surico, how the gangs of the 1970s came together to end their wars, vice (june 18, 2015), https://www.vice.com/en/article/kwxwzv/how-the-gangs-of-1970s-new-york-came-together-to-end-theirwars-618 [https://perma.cc/fg8e-98el] (suggesting that the nypd seemed “too scared to go to [the south bronx] . . . . [i]f someone died, the police would show up in riot gear to haul the body off’). 2025] deconstructing 1348 members believe peace resulted from internal cooperation rather than external force.55 the police were not present to prevent frequent clashes between gangs, nor could they address the underlying social conditions that allowed gang violence to flourish. instead, the gangs themselves filled the void that resulted from the lack of law enforcement by organizing against the drug trade and responding to the issues raised by community members.56 eager to put an end to the violence, one of the larger gangs, the ghetto brothers, began a free breakfast program, which they modeled after the black panther party; organized clothing drives; cleaned apartment buildings; and advocated for youth employment and better healthcare.57 they also recruited a peace counselor, black benjie, to interrupt impending violence between gangs.58 tragically, in late 1971, black benjie was murdered while attempting to stop a brawl. his death led to a lasting peace treaty between gangs in the south bronx, as many faded going into the 1980s.59 this decline reflects how the gang members recognized they were “all brothers living in the same neighborhoods and having the same problems,”60 a sentiment of shared experience and community that remains relevant today. 55 see surico, supra note 53 (“when you hear the pro-cop crowd talk about the bad old days, they tend to say it was broken windows that saved everything—it was this "quality of life" policing that restored law and order. . . . [but] it was an internal peace, not an external force.”). 56 see id. (“they kicked out the junkies, and most people, if they had a problem, would go to the gang leaders and say . . . whatever the issues was.”); green & pranis, supra note 45, at 18 (“youth gangs carried on the customary battles over turf, of course, but they also organized against the drug trade, mounting aggressive campaigns to drive heroin dealers and junkies out of their neighborhoods.”). 57 see jonathan custodio, the ‘black benjie way’: bronx peacemaker whose killing led to gang truce honored with street naming, the city (june 3, 2023), https://www.thecity.nyc/2023/06/03/black-benjie-ghettobrothers-gangs-hoe-avenue-peace-treaty-south-bronx-longwood/ [https://perma.cc/r7cp-s458] (last updated oct. 12, 2023). 58 id. 59 id. for a compelling documentary on black benjie’s legacy, the hoe avenue peace treaty, and new york city gang culture in the 1970s, see rubble kings (michael aguilar, jim carrey, cristina esteras, dito montiel, shan nicholson, & ben velez 2015). 60 the hoe avenue peace treaty stated: “we realize that we are all brothers living in the same neighborhoods and having the same problems. we also realize that fighting amongst ourselves will not solve our common problems . . . peace between all gangs and a powerful unity.” jeff chang, can’t stop won’t stop: a history of the hip-hop generation 60–61 (2005). 1349 colum. j. race & l. [vol. 15:1337 in the early 1980s, it appeared that the sustained gang violence which plagued the city since the end of world war ii would begin to subside.61 but, poverty, lack of employment opportunities, and racial stratification, all forces that drew young people to gangs, were largely unchanged,62 and deadly gun violence reached epidemic levels among new york city youth in the late 1980s.63 this upsurge in violence, however, was not entirely gang-related—scholars have suggested that it was fueled by the widespread availability of guns and the development of dangerous behavioral norms around them.64 nevertheless, media coverage of nationally renowned “supergangs” such as the crips, bloods, and latin kings, exploded during the last decade of the 20th century, leading to a wave of moral panic.65 during this time, the nypd adopted community policing as its guiding law enforcement model.66 community policing emphasizes problem solving, police-community relationship 61 see green & pranis, supra note 45, at 18 (“those who expected that the problem of youth violence would subside as street gangs lost their widespread appeal . . . were sorely disappointed . . . .”). 62 see august benzow and kenan fikri, the persistence of neighborhood poverty: examining the power of inertia and the rarity of neighborhood turnaround across u.s. cities 13 (2020), https://eig.org/wpcontent/uploads/2020/04/persistence-of-neighborhood-poverty.pdf [https://perma.cc/btb3-mjrx] (“new york started down a path of urban decline beginning in the 1960s. by 1980, one-quarter of the city’s population lived in a high-poverty neighborhood.”); mark k. levitan & susan s. wieler, poverty in new york city, 1969-99: the influence of demographic change, income growth, and income inequality 22 (2008), https://www.newyorkfed.org/medialibrary/media/research/epr/08v14n1/0807levi.pdf [https://perma.cc/k7fc-fy8y] (noting a sharp rise in poverty rates for black and latino communities in the 1970s); richard b. freeman, cutting black youth unemployment; create jobs that pay as well as crime, n.y. times (july 20, 1986), https://www.nytimes.com/1986/07/20/business/cutting-black-youth-unemployment-create-jobs-that-pay-as-well-ascrime.html (on file with the columbia law review) (observing that black youth unemployment was at “disastrous levels,” with forty percent of those aged twenty to twenty-four were unemployed in 1985). 63 green & pranis, supra note 45, at 18. 64 see, e.g, jeffrey fagan & deanna l. wilkinson, guns, youth violence, and social identity in inner cities, 24 crime and just. 105, 107 (1998) (suggesting that the widespread availability of firearms led to a pervasive “ecology of violence” in which beliefs about guns being protection from the dangers of everyday life were internalized in early childhood). 65 see green & pranis, supra note 45, at 18– 9 (“newspaper references to [supergangs] surged . . . raising fears about an impending gang-related crime wave. yet police reports . . . indicate that serious violent crime was on the decline in the city well before, and long after, media reports of the emergence of a new generation of violent gangs.”). 66 n.y.c. police dep’t, the history of the new york city police department 10 (1993), https://www.ojp.gov/pdffiles1/digitization/145539ncjrs.pdf [https://perma.cc/ky4e-sgyd]. 2025] deconstructing 1350 building, and organizational management designed to support neighborhood partnerships.67 the nypd's adoption of community policing led to organizational ambiguity about the objectives and functions of specifically tasked gang units, and raised questions around whether such a model could adequately combat the perceived rise in the number of gangs within the city.68 despite the success of community-based approaches to gangs, in 2000, the nypd separated its gang units from the community policing program and consolidated its anti-gang efforts into a single division.69 this shift laid the groundwork for the massive transformation in gang policing that would take place only a decade later. 2. 21st century gang policing floyd v. city of new york to operation crew cut although the nypd continues to tout community policing as the “cornerstone” of the department,70 much of its work in the twenty-first century has been surveillance-based rather than community-based.71 prior to 2012, this surveillance was conducted through stop-and-frisk, a practice that allowed the nypd to surveil high crime areas, and stop, detain, and pat down individuals they deemed “suspicious.”72 the nypd developed an addiction to profile-based policing, and black and latino residents of low-income areas frequently fit the criminal 67 u.s. dep’t of justice community oriented policing services, community policing defined 1 (2012), https://portal.cops.usdoj.gov/resourcecenter/ric/publications/cops-p157-pub.pdf [https://perma.cc/4yx9-2eyn]. 68 see deborah lamm weisel & tara o’connor shelley, specialized gang units: form and function in community policing 2 (2004), https://www.ojp.gov/pdffiles1/nij/grants/207204.pdf [https://perma.cc/h9ry-f5de] (“the convergence of these divergent movements during the 1990s − the explosive growth of community policing and the dramatic rise in the number of gangs − contributed to an organizational ambiguity about the objectives, structure and functions of gang units in police agencies.”). 69 id. at 12 70 the community policing model is now referred to as “neighborhood policing.” see neighborhood policing, n.y.c police dep’t, https://www.nyc.gov/site/nypd/bureaus/patrol/neighborhood-coordinationofficers.page [https://perma.cc/7u5h-84cg] (“the cornerstone of today's nypd is neighborhood policing, a comprehensive crime-fighting strategy built on improved communication and collaboration between local police officers and community residents.”). 71 see howell, supra note 22, at 2 (noting that “[s]ince 2001, the nypd has adopted a surveillance-based policing model”). 72 id. see also floyd v. city of new york, 959 f. supp. 2d 540, 558 (s.d.n.y. 2013) (“between january 2004 and june 2012, the nypd conducted over 4.4 million terry stops.”). terry stops are named after the case terry v. ohio, which held stop and frisks to be constitutional. id. at 558, 565. 1351 colum. j. race & l. [vol. 15:1337 profile.73 in 2008, this blatant practice of racial profiling was challenged before the southern district of new york.74 in floyd v. city of new york, the court ultimately found that the nypd deliberately targeted young men of color without any objective suspicion of criminal behavior, and thus violated the plaintiffs' fourth75 and fourteenth76 amendment rights. the 2013 decision effectively changed the stop-and-frisk tactics employed by the nypd, as the court ordered “immediate changes to the nypd’s policies, a joint remedial process to consider further reforms, and the appointment of an independent monitor to oversee compliance with the remedies ordered in this case.”77 during the time the court in floyd analyzed the nypd’s use of stop-and-frisk, gang violence represented an extremely small percentage of crime in new york city.78 as such, gang policing was not a priority for the nypd, but it became one when stop-and-frisk came under attack. in 2012, just ten months before the floyd decision, police commissioner raymond kelly announced operation crew cut, which quadrupled the number of officers assigned to the gang 73 see howell, supra note, 22, at 2 (“the nypd is driven by crime statistics and believes that aggressively policing a particular suspect class, which happens to be defined by race and class, is the reason for crime decline.”). see also floyd, 959 f. supp. 2d at 559 (noting that eighty-three percent of people stopped and frisked were either black or latino, despite new york city’s population only being fifty-two percent black or latino at the time). 74 see floyd, et al. v. city of new york, et al., cntr. const. rights, https://ccrjustice.org/home/what-wedo/our-cases/floyd-et-al-v-city-new-york-et-al [https://perma.cc/57yl-4jf8] (last visited jan. 8, 2024). 75 floyd, 959 f. supp. 2d at 658 (“plaintiffs established the city’s liability for the nypd’s violation of their fourth amendment rights . . . . [s]enior officials in the city and at the nypd were deliberately indifferent to officers conducting unconstitutional stops and frisks . . . . [u]nconstitutional stops and frisks were sufficiently widespread that they had the force of law.”). 76 id. at 661 (“plaintiffs have established . . . that the city, through the nypd, has a policy of indirect racial profiling based on local criminal suspect data . . . . [p]laintiffs showed that senior officials . . . have been deliberately indifferent to the intentionally discriminatory application of stop and frisk . . . .”). 77 id. at 667. 78 see howell, supra note 22, at 8 (noting that the nypd attributed less than 1% of major categories of felony crimes in new york city to gang members through 2012). of note, factors that influence gang activity, like youth unemployment, were even higher during that period than they have been in recent years. see youth unemployment (20 to 24 years), keeping track online: the status of new york city children, https://data.cccnewyork.org/data/map/1180/youth-unemployment-20-to-24-years#1180/a/3/1312/127/a/a (last visited jan. 14, 2024) (comparing new york city youth unemployment in 2021 and 2012, which was 14.9 percent and 20.5 percent, respectively). 2025] deconstructing 1352 division.79 kelly told newspapers that thirty percent of shootings in recent years were related to youth “crews.”80 but, this is an utterly false claim if one considers the nypd’s own reports from 2005 through 2012.81 operation crew cut created more than an expansion of gang policing. it laid the foundation for an alternative racial profiling practice under the guise of a new menace to society—the violent youth gang member. this created a moral panic “where the public, the media, and politicians reinforce[d] each other in an escalating pattern of intense and disproportionate concern in response to a perceived social threat posed by a particular group of individuals.”82 this, however, was not the first time that misplaced fear of gang violence was used to justify intensive profile-based policing. this tactic proved successful in obscuring the discriminatory effect of youth offender legislation in california a decade earlier.83 the guise of the gang menace proved similarly effective in new york city, as even the most outspoken critics of stop-and-frisk 79 id. at 2. 80 see joseph goldstein & j. david goodman, frisking tactic yields to a focus on youth gangs, n.y. times (sept. 18, 2023), https://www.nytimes.com/2013/09/19/nyregion/frisking-tactic-yields-to-a-focus-on-youthgangs.html (on file with the columbia law review). kelly stated that the problem stemmed not from “large, established gangs such as the bloods and crips, but . . . the looser associations of younger men who identify themselves by the block they live on, or on which side of a housing development they reside.” rocco parascandola, nypd to double gang division to combat street violence: commissioner kelly, n.y. daily news (oct. 1, 2012), http://www.nydailynews.com/new-york/nypd-double-gang-division-article1.1172347 (on file with the columbia law review). it is worth noting that feuding crews were already being surveilled by police and prosecutors when operation crew cut was announced, so the increase in resources allowed for the intensive policing of individuals in the areas beyond the existing conflicts. see howell, supra note 18, at 12. 81 professor howell obtained these reports from nypd legal after submitting a freedom of information law request, but it took three years and a lawsuit to do so. see howell, supra note 22, at 2 n. 2. the reports indicated that less than six percent of shootings and homicides during the seven year period were gang-motivated. id. at 9. the nypd categorizes a higher percentage of shootings and homicides as “gang related,” which captures all incidents involving actual or suspected gang members even if the violence is attributable to a non-gang motive. id. even using this broader category, only fifteen to twenty percent of shootings and homicides were gang-related. id. beyond low levels of gang-related crime, violent crime in new york city also reached the lowest level in recorded history. id. at 2 (questioning why the nypd would quadruple its gang division in the two years during which violent crimes reached the lowest level in recorded history). 82 see elizabeth s. scott & laurence steinberg, rethinking juvenile justice 108–12 (2008) (linking moral panic over youth crime to the adoption of california’s proposition 21 which required many juveniles to be tried as adults, barred sealing of juvenile records, and extended prison terms for gang-related crimes). 83 see id. (observing how the gang menace was used to justify profile-based policing in california following the passage of proposition 21). 1353 colum. j. race & l. [vol. 15:1337 expressed approval for increased policing to combat the perceived threat of trigger-happy street crews in low-income black and latino neighborhoods.84 so, even after floyd, the nypd continued its regime of racial profiling—it just took a new form. 3. the criminal group database (cgd) and the 2023 department of investigations report in 2013, shortly after the announcement of operation crew cut, the cgd became operational.85 the nypd patrol guide defines a “gang” as: any ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities, the commission of one or more criminal acts (including drug dealing), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.86 this definition requires that members of the gang participate in a pattern of criminal activity. the nypd patrol guide does not define a “gang member” but individuals can be designated as gang members within the cgd without any proof of criminality.87 there are two pathways for inclusion in the cgd: “option a” and “option b.”88 option a requires that either the individual self-admit membership “during debriefing or post[ing] on their personal social media site information such as language, symbols, picture, colors, etc. that are affiliated with a criminal group,” or that “[t]hrough the course of an investigation an individual is believed to 84 stephon johnson, stop-and-frisk makes way for operation crew cut, n.y. amsterdam news (sept. 26, 2013), http://amsterdamnews.com/news/2013/sep/26/stop-and-frisk-makes-way-operation-crew-cut/. [https://perma.cc/m57a-fbaq] (noting that operation crew cut received backing from stop-and-frisk critics like former mayor bill de blasio and former council member jumaane williams). 85 see n.y.c. dep’t of investigation, supra note 2, at 2. 86 n.y.c. police dep’t, supra note 5, at 1. 87 johnson, supra at note 6, at 1038. it is worth noting that gang membership in itself is not a crime. see lanzetta v. new jersey, 306 u.s. 451, 457–58 (1939) (holding that a new jersey statute that criminalized gang membership was unconstitutional). 88 n.y.c. dep’t of investigation, supra note 2, at 2. 2025] deconstructing 1354 belong to a criminal group and is identified as such by [two] independent sources” such as a school safety officer or a correctional officer.89 option b requires two of the following: 1) frequent presence at a known criminal group location; 2) possession of criminal group-related documents; 3) association with known criminal group members; 4) social media posts with known criminal group members while possessing known criminal group paraphernalia; 5) scars and tattoos associated with a particular criminal group; or 6) frequent wearing of the colors and the use of hand signs that are associated with a particular criminal group.90 none of the criteria, for option a or option b, require criminal conduct. so, even though the nypd’s definition of a gang requires criminal activity, one can be included in the cgd without committing a crime. for most of its existence, the cgd has been shrouded in secrecy.91 but, this secrecy has not shielded it from public scrutiny. in 2018 and 2019, the grassroots advocates for neighborhood groups & solutions coalition (gangs) testified before the city council about numerous concerns related to the database.92 the coalition insisted that “the database uses overly vague criteria for inclusion, lacks oversight, includes juveniles without notifying their parents, does not inform people if they are on the database, and offers no mechanisms for disputing inclusion.”93 in response, the doi agreed to launch a report on the nypd’s use and operation of the cgd. the report, which was released in 2023, confirmed all of the concerns.94 89 babe howell, gang narratives and race-based policing and prosecution in new york city, in routledge handbook of international gang studies 177, 179 (david c. brotherton & rafael jose gude eds., 2022) [hereinafter howell, gang narratives]. 90 n.y.c dep’t of investigation, supra note 2, at 2. 91 id. at 12 (noting that the npyd has not provided clear responses to the questions and concerns raised by community members about the cgd). see also naacp legal defense fund, supra note 31 (“the nypd has wielded this secretive gang database against new yorkers for years, while simultaneously denying them the right to even know if they are included in it.”). 92 dempsey & vitale, supra note 38. 93 id. 94 see n.y.c. dep’t of investigation, supra note 2, at 3–8 (outlining various issues with the cgd). 1355 colum. j. race & l. [vol. 15:1337 the report notes that as of december 2022, there were over 16,000 individuals included in the cgd.95 ninety-nine percent of these individuals were nonwhite.96 this statistic alone is alarming given that criminal groups exist in a wide variety of neighborhoods throughout new york city, not solely within nonwhite communities.97 but beyond the clear racial profiling, the report highlights a number of dangerous nypd practices and failures. notably, the report found that the most common reason cited to support entry into the database was self-admission of gang membership through police debriefings or social media posts.98 per nypd policy, the self-admission must be “clearly articulated,”99 however the nypd does not define what qualifies as a self-admission in the social media context,100 nor is there written guidance about the level of detail and documentation required to establish selfadmission.101 the second most common reason cited to support entry into the database was associations with known gang members combined with the presence of the individual at locations deemed to be gang-related.102 individuals have been added to the database as known associates merely due to being friends with an alleged gang member on social media or wishing them “happy birthday” on facebook.103 similarly, the nypd treats being present at a known gang location as a criterion for entry even when the location was merely a person’s home in a public housing complex.104 when a public housing complex is deemed a known criminal group 95 id. at 2. 96 id. at 34. 97 see dempsey & vitale, supra note 38 (noting that “violence, drug dealing, and other collective criminal behavior occurs in a wide variety of neighborhoods”). see also howell, supra note 22, at 16 (“[c]riminologist and youth gang researchers find that gang membership is rare among all races but substantially more common among white youth than law enforcement statistics estimates, with white gang members accounting for 25% or more of all gang members.”). 98 n.y.c. dep’t of investigation, supra note 2, at 36. 99 id. at 25. 100 id. at 26. 101 id. at 8. 102 id. at 36. 103 id. at 48. 104 naacp legal defense fund, supra note 31. 2025] deconstructing 1356 location, then those who live there, whether involved in gang activity or not, are at risk of being classified as gang members by virtue of their socioeconomic status. this practice exemplifies how the database criminalizes not only race but also class. furthermore, contrary to the cgd’s governing policies, the report found instances where a single nypd staff person served as the reporting officer, reviewing supervisor, and endorser of an individual’s activation into the database —an egregious lack of oversight.105 when reviewing the cgd’s active profiles, the doi also found instances where individuals were reviewed and approved for continued inclusion in the database based on sealed arrest records, which is prohibited by state law.106 despite this legal violation, the report does not mention any consequences the nypd may face.107 moreover, the report claims that “[e]vidence of harm from the cgd was not found,”108 which is a questionable assertion considering the clear racial disparity in who is included in the database and the numerous problems identified in the report.109 this claim is all the more questionable given that prosecutors, police witnesses, judges, and juries rely heavily on the accuracy of the information in gang databases.110 due to the decisions 105 n.y.c. dep’t of investigation, supra note 2, at 5. the nypd requires four levels of approval to include an individual in the cgd: a proposal from a reporting officer (level one), the endorsement of a senior supervisor (level two), and review from the activating detective (level three) and detective’s supervisor (level four). id. the same individuals served in multiple roles in approximately ten percent of entries. id. 106 id. at 41. 107 although not discussed in the report, this illegal use of the cgd may expose the nypd to civil liability. see lino v. n.y.c., 958 n.y.s.2d 11, 15 (n.y. app. div. 2012) (finding nypd’s inclusion of sealed records in the “stop and frisk” database was sufficient harm to confer standing to sue). 108 n.y.c. dep’t of investigation, supra note 2, at 3. 109 see supra text accompanying notes 96–106. the “no harm” conclusion also flies in the face of chicago’s audit of its gang database, which identified multiple concrete harms like “misidentifications, harassment, obstacles to immigration, and racial profiling, all of which . . . furthered the historical divide between the community and the police and contributed to inequities, especially in communities of color.” dempsey & vitale, supra note 38. 110 wright, supra note 34, at 117. 1357 colum. j. race & l. [vol. 15:1337 of these actors, inclusion can lead to false identification as a gang member,111 inexplicably harsh criminal charges or excessive bond,112 and even the risk of deportation.113 b. gang prosecutions and police expert testimony targeting gang activity in new york city does not end with cgd. alleged gang members who are charged with crimes face the possibility of a police officer testifying on behalf of the state as a “gang expert.”114 prior to explaining the role and scope of this form of testimonial evidence, it is important to note the function of gang evidence more broadly. 1. gang evidence in criminal prosecutions contrary to more nuanced gang definitions, the new york court of appeals has recognized the connection between evidence of a defendant’s membership in a gang and the commission of crimes.115 accordingly, evidence of gang activity and a defendant’s membership in a gang are frequently admissible in criminal prosecutions.116 there are three requirements for admissibility. 111 see vaidya gullapalli, spotlight: the dangers of gang databasing and gang policing, the appeal (july 3, 2019), https://theappeal.org/spotlight-the-dangers-of-gang-databases-and-gang-policing/ [https://perma.cc/zm6chvzm] (telling the story of bronx native kraig lewis, who was falsely identified as a gang member and arrested on conspiracy charges due to childhood interactions captured on facebook). 112 see alice speri, nypd gang database can turn unsuspecting new yorkers into instant felons, the intercept (dec. 5, 2018), https://theintercept.com/2018/12/05/nypd-gang-database/ [https://perma.cc/n64d-l34g] (describing how harlem resident keith shenry’s false identification as a “known” gang member led to an unusually severe felony charge and a whopping $10,000 bond for possession of a small bag of marijuana and a folding knife). 113 keegan stephan, conspiracy: contemporary gang policing and prosecutions, 40 cardozo l. rev. 991, 1025–26 (2018) (noting that “[o]nce detained for alleged gang membership, immigrants can be deported on this allegation alone”). 114 see fareed nassor hayat, preserving due process: require the frye and daubert expert standards in state gang cases, 51 n.m. l. rev. 196, 201 (2021) (observing that police officers are commonly offered and admitted as experts in state gang prosecutions despite admissibility standards). 115 see people v. kims, 24 n.e.3d 573, 585 (n.y. 2014) (“evidence regarding gang activity can be admitted to provide necessary background, or when it is ‘inextricably interwoven’ with the charged crimes, or to explain the relationships of the individuals involved.”). see also guide to n.y. evidence rule 4.34. gang membership and activity, n.y. state unified ct. sys., https://www.nycourts.gov/judges/evidence/4relevance/4.34_gang_membership_and_activity.pdf [https://perma.cc/jze7-dhjj] (last visited jan. 9, 2024) (noting that “[e]vidence of gang activity and a defendant’s membership in a gang normally will reveal, directly or indirectly, the commission of crimes or bad acts”). 116 see, e.g., people v. benjamin, 162 n.y.s.3d 726, 726 (n.y. app. div. 2022) (upholding the trial court’s ruling which admitted evidence of gang activity, specifically police expert testimony and photos of the defendant making gang signs with known gang members); people v. hilts, 134 n.y.s.3d 563, 568 (n.y. app. div. 2020) 2025] deconstructing 1358 first, the evidence must connect to a specific material issue in the case.117 the court of appeals has stated that gang evidence “can be admitted to provide necessary background, or when it is ‘inextricably interwoven’ with the charged crimes, or to explain the relationships of the individuals involved.”118 gang evidence may also be admitted when it provides a motive for the crime charged.119 second, the gang evidence cannot solely demonstrate the defendant’s propensity to commit the crime charged.120 although new york’s evidence rules are uncodified,121 this requirement is similar to rule 404 of the federal rules of evidence (fre), which states that “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion, the person acted in accordance with the character or trait.”122 in the context of gang evidence under new york state law, evidence of the defendant’s gang membership or activity must not be offered solely to show their propensity or predisposition to commit the crimes charged.123 rather, the prosecution must offer a different theory for why the evidence is relevant, such as motive or necessary background.124 additionally, while there is still danger that (holding that the trial court did not err in permitting evidence of the gang affiliations of the defendant and other participants in a gun sale); people v. mccommons, 40 n.y.s.3d 578, 583 (n.y. app. div. 2016) (holding that the trial court did not err in permitting people to establish that defendant was a gang member in a prosecution for murder and other crimes). 117 kims, 24 n.e.3d at 585. 118 id. 119 see, e.g., people v. moore, 366 n.e.2d 1330, 1337 (n.y. 1977) (“[e]vidence of the defendant's relationship with [the black liberation army] and their stated hostility to the police was properly admitted at trial to show the motive for the crime.”); benjamin, n.y.s.3d at 726 (holding that evidence of the defendant’s gang membership was probative of motive and thus admissible as his confession made no sense except in the context of a gang rivalry). 120 kims, 24 n.e.3d at 585. 121 david paul horowitz & katryna l. kristoferson, burden of proof: evidence is hard, new york state bar association (july 6, 2023), https://nysba.org/burden-of-proof-evidence-is-hard/ [https://perma.cc/2fxp-aasz] (noting that new york is one of the few states without a statutory code of evidence). 122 fed. r. evid. 404(a)(1). 123 see kims, 24 n.e.3d at 585 (stating that references to the defendant's alleged gang membership and gang affiliation were improperly admitted as they did not connect to the various drug related charged and thus only tended to show the defendant's predisposition to commit the crimes). 124 see people v. faccio, 822 n.y.s.2d 329, 330 (n.y. app. div. 2006) (holding that the trial court did not err in permitting proof of the defendant’s gang membership as the prosecution offered multiple alternative theories of 1359 colum. j. race & l. [vol. 15:1337 jurors can make an improper propensity inference when presented with gang evidence, judges can mitigate this danger by instructing juries to avoid making such an inference.125 lastly, the probative value of the evidence must outweigh its prejudicial effect.126 probative value refers to the strength of the explanation that the evidence provides,127 while prejudice refers to its tendency to suggest a factual finding on an improper basis, like emotion or bias.128 while gang evidence may trigger the emotions and biases of jurors,129 the many reasons gang evidence may support a prosecutor’s case frequently tip the scale in favor of admissibility.130 judges may also minimize the prejudicial effect of the evidence by instructing the jury to avoid prejudicial inferences.131 relevance, including necessary background and motive of the conspirators). considering that the non-propensity theory is often what connects the gang evidence to a material issue in the case, the material issue requirement is rather superfluous. see people v. bailey, 110 n.e.3d 489, 498 (n.y. 2018) (holding that testimony about the defendant’s gang membership was not improper propensity evidence, as it was probative of his motive to join a prison assault and provided necessary background on the relationship between codefendants). 125 see id. (stating that the trial court delivered adequate instructions to the jury regarding the proper use of the gang evidence). 126 see people v. bailey, 110 n.e.3d 489, 498 (n.y. 2018) (stating that where there is a proper nonpropensity purpose for gang evidence, the decision to admit the evidence rests upon the trial court's discretionary balancing of probative value and unfair prejudice). 127 see michael s. pardo & ronald j. allen, juridical proof and the best explanation, 27 law & philosophy 223, 242 (2008) (“probative value refers to the strength of the explanation; the more the evidence is explained by, and hence justifies, the party's explanation of the evidence, the greater the probative value and hence the stronger the inference to the truth of that explanation.”). 128 see fed. r. evid. 403 adv. comm. notes (stating that unfair prejudice “means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one”). 129 see, k. babe howell, prosecutorial misconduct: mass gang indictments and inflammatory statements, 123 dick. l. rev. 691, 700 (2019) [hereinafter howell, prosecutorial misconduct] (“[g]ang allegations evoke prejudice even when conspiracies are not alleged and multiple defendants are not charged.”). 130 see, e.g., people v. argueta, 149 n.y.s.3d 104, 104 (n.y. app. div. 2021) (holding that testimony regarding the defendant's membership in a gang was properly admitted to establish motive and intent, and thus the prejudicial effect of that testimony did not outweigh its probative value). 131 see people v. benjamin, 162 n.y.s.3d 726, 726 (n.y. app. div. 2022) (“the probative value of defendant’s gang affiliation outweighed any prejudice, which was minimized by the court’s limiting instructions.”). one may question the curative value of these instructions. jurors are not able to simply forget what they hear, and judges may even be drawing attention to prejudicial inferences they seek to abate. 2025] deconstructing 1360 2. the admissibility and scope of police officers as gang “experts” beyond the minimal requirements for the admission of gang evidence, there are a variety of forms this evidence may take.132 one of the most powerful, and most common, is the testimony of a police expert witness.133 in new york state courts, the testimony of expert witnesses must satisfy the requirements established in frye v. united states.134 the frye test asks “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.”135 in short, the only inquiry for the court is whether other scientists generally accept the techniques used in forming the expert’s opinion as reliable. given that a police officer’s expertise on gang-related matters does not stem from generally accepted scientific techniques,136 their testimony is inadmissible under frye.137 but, the court of appeals has held that the frye rule does not apply where experts base their testimony 132 see e.g., id. (photographs evincing the defendant’s affiliation with a gang); people v. hilts, 134 n.y.s.3d 563, 568 (n.y. app. div. 2020) (the testimony of a confidential informant); doyle v. prack, 982 n.y.s.2d 203, 204 (n.y. app. div. 2014) (a wristband with gang insignia); matter of donovan b., 717 n.y.s.2d 180, 180 (n.y. app. div. 2000) (lay witness testimony about the color of the defendant’s clothing). the use of rap music as gang evidence is a particularly controversial topic. see kate brumback, judge rules rap lyrics can be used as evidence in young thug’s trial, time (nov. 9, 2023), https://time.com/6333558/young-thug-trial-rap-lyrics/ [https://perma.cc/h87g7qur] (discussing the contested admission of rapper young thug’s lyrics as gang evidence in his georgia racketeering trial). for a captivating exposé about the use of rap lyrics to convict and incarcerate young men of color, see generally nelson, supra note 20. 133 see hayat, supra note 113, at 200 (recognizing the weight and import of police gang expert testimony); victor m. rios & karlene navarro, insider gang knowledge: the case for non-police gang experts in the courtroom, 18 critical criminology 21, 24 (2010) (“the legal framework in gang cases is unique to other crime cases because of the heavy reliance on police gang experts.”). 134 see 293 f. 1013 (d.c. cir. 1923). see also people v. brooks, 96 n.e.3d 206, 206 (n.y. 2018) (showing new york’s continued adherence to frye); people v. wesley, 633 n.e.2d 451, 454 (n.y. 1994) (applying the frye standard to dna profiling evidence). 135 see wesley, 633 n.e.2d at 454. 136 the supreme court has stated that science is defined by the use of the scientific method, which involves generating hypotheses and testing them empirically to see if they can be falsified. see daubert v. merrell dow pharm., inc., 509 u.s. 579, 593 (1993). although it may be argued that “[p]olice officer experts use certain criteria to determine whether a person is in a gang, and these criteria can be falsified depending on whether people who meet these criteria are always gang members,” these methods are not generally accepted by social scientists who have studied gangs objectively for decades. hayat supra note 113, at 209–10. 137 see hayat, supra note 113, at 203 (arguing that police gang expert testimony amounts to pseudo-science that lacks acceptance in the relevant scientific community). 1361 colum. j. race & l. [vol. 15:1337 on personal training or experience.138 this loophole allows police officers to be certified as criminal “experts” by virtue of their occupation, and the same logic applies to gang unit officers (or detectives who investigate gang activity) and gang expertise.139 there are, however, limitations on the testimony of these “experts.” the issues on which they testify must be “beyond the ken of ordinary jurors” so that they “may be aided, but not displaced” by the expert’s opinion.140 a primary concern to courts is an officer “giv[ing] seemingly authoritative testimony directly instructive of what facts the jury should find.”141 these limitations are outlined in people v. inoa, where the court of appeals held that it was an error to permit a police officer to give expert testimony on the meaning of uncoded phone conversations between gang members.142 while it was permissible for the officer to testify as to the meaning of coded language between the gang members, testimony about uncoded language was within the knowledge of average jurors and thus amounted to a usurpation of the jury's factfinding role.143 despite concerns that the extent of permissible evidence is excessive under inoa,144 the court’s reasoning has been extended to permit police expert testimony on a wealth of gang 138 see people v. oddone, 3 n.e.3d 1160, 1163–64 (n.y. 2013) (holding that an expert who bases their opinion personal training or experience is not subject to a frye analysis). 139 see people v. inoa, 34 n.e.3d 839, 842 (n.y. 2016) (noting that an nypd detective who had previously participated in a takedown of the defendant’s gang was qualified as an expert in decoding code conversations between gang members). 140 see id. at 842–44. see also people v. cronin, 458 n.e.2d 351, 352 (n.y. 1983) (noting that the scope of expert testimony turns on whether or not “the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon”). 141 see inoa, 34 n.e.3d at 844. 142 see id. at 845. 143 see id. it is worth noting that the court does not discuss if there is a difference between coded language and slang language. but if one compares the examples provided in the case to popular music, where artists speak in slang rather than intentional code, it is clear that coded language was interpreted to include slang language. see id. at 842 (stating that “onion” was a coded term for marijuana package); t.i., 24’s (cinq recordings 2003) (expressing the artist’s desire to “buy an onion of good,” referring to marijuana). see also people v. goldman, 139 n.y.s.3d 48, 49 (n.y. app. div. 2020) (permitting a police expert to testify as to the meaning of a “slang” expression uttered by the defendant). 144 see goldman, 139 n.y.s.3d at 49 (noting the defendant’s argument that police expert testimony admitted under inoa deprived him of his constitutional right to a fair trial). 2025] deconstructing 1362 related matters, including gang culture, customs, hierarchies, and past violent practices.145 given the wide scope of information permitted under police gang expert testimony, databases like the cgd are all the more relevant. not only can the cgd be used to support the finding that an individual is a gang member,146 but it can also provide the basis by which officers develop a broader understanding of gangs and gang-related behavior.147 police gang expert testimony also evades a reliability inquiry, allowing the cgd’s suspect data to undergird police “expert” authority within the courtroom.148 with these factors and the broader history of new york city gang policing in mind, this note will now turn to a discussion of the prejudicial effect and unreliability of police gang expert testimony. ii. the prejudicial effect and unreliability of police gang expert testimony when examining the connection between the cgd and the admission of nypd officers as gang “experts” in criminal prosecutions, it is apparent that black and latino men face a unique and compounding form of oppression. the nypd’s own data supports the notion that gang crime is not a salient issue.149 yet, gang crime is sensationalized in the media and the 145 see people v. bailey, 50 n.y.s.3d 53, 54 (n.y. app. div. 2017) (holding that the trial court providently exercised its discretion in admitting police expert testimony “concerning the customs, hierarchies and violent practices of the bloods”). 146 see n.y.c. dep’t of investigations, supra note 2, at 23–4 (outlining the process for entry into the cgd and thus the gang member designation); speri, supra note 111 (describing how prosecutors based their courtroom accusation of gang membership on a defendant’s inclusion in cgd). 147 see n.y.c. dept’s of investigations, supra note 2, at 38 (describing how officers support an individual's activation in the cgd with narrative accounts of the individual's gang activity). although the department of investigation found that many activations contained insufficient narrative support, those with sufficient support contained information about known gang locations, colors associated with the gang, hand signs, social media posts, and other investigatory observations. id. 148 frye provides the reliability inquiry for expert evidence, and police expert testimony evades this inquiry due to its grounding in personal knowledge and experience. see supra text accompanying notes 135–36. in limiting the scope of police expert testimony, inoa also makes no mention of reliability. see inoa, 34 n.e.3d at 842–44 (stating that the court’s chief concern in limiting the scope of police expert testimony is whether the subject matter is beyond the knowledge of the ordinary juror). 149 see howell, supra note 22, at 2 (“[g]ang-motivated [do not] crimes account for even one percent of the crimes that take place in new york city each year.”). 1363 colum. j. race & l. [vol. 15:1337 nypd has invested tremendous resources into the suppression of gang activity.150 widespread gang crime is thus pretextual, and the public’s association of gang membership with violent criminality covers the nypd’s racial profiling practices under a façade of racial neutrality.151 as exemplified by the cgd, racial bias is clearly embedded within the nypd’s methods of gang policing.152 that same racial bias is given immense evidentiary weight within the courtroom through the admission of nypd officers as gang experts.153 this creates two major issues. first, the expert testimony is unfairly prejudicial to individuals with alleged gang ties. second, the expert testimony may be wholly unreliable and support the wrongful convictions of individuals who are not gang-affiliated. these issues come together to create a powerful form of criminal legal oppression that is seemingly inescapable for the targeted black and latino new yorkers. this part explores the prejudice and unreliability concerns with police gang expert testimony. section ii.a analyzes the prejudicial effect of police gang expert testimony, taking into account the implicit biases of testifying officers and jurors. section ii.b examines the unreliability of police gang expert testimony, highlighting how overbroad gang definitions and harmful indicators of gang membership risk the conviction of innocent, non-gang-affiliated individuals. 150 see n.y.c. police dep’t, supra note 42 (describing the nypd’s major case operations conducted against gangs in the first three months of 2023, which resulted in over 200 arrests); tina moore & sofia barnett, gangs of ny: nypd bronx unit targets killer, crime-happy crews, new york post (july 22, 2023), https://nypost.com/2023/07/22/nypd-bronx-unit-targets-killer-crime-happy-gangs-in-nyc/ [https://perma.cc/zp5kp5zg] (describing youth gangs as “drivers of violence” and everyday people as “collateral damage in gang warfare raging across the city”). 151 see howell, supra note 22, at 5–6 (arguing that rampant gang crime is pretext to justify broad law enforcement-based suppression strategies); johnson, supra note 6, at 1042 (arguing that nypd gang policing is racebased in practice in practice but race-neutral on its face). 152 non-white individuals are ninety-nine percent of the database, yet white people account for twenty-five percent or more of gang members. johnson, supra note 6, at 1041. 153 see hayat, supra note 113, at 200 (recognizing the power of police gang expert testimony). 2025] deconstructing 1364 c. police gang expert testimony is unfairly prejudicial as discussed in section i.b, evidence regarding gang activity and a criminal defendant’s gang affiliation is generally deemed more probative than prejudicial.154 but, when this evidence is presented through the testimony of a police expert witness, there is a particular capacity for prejudice that courts have yet to recognize.155 during trials where gang membership or gang activity is relevant, prosecutors employ inflammatory and often inaccurate narratives that highlight the violence and moral turpitude of gang life.156 while claiming to protect the community from threats posed by gangs, these stories exaggerate the conduct of black and latino individuals, and feed society’s overt racism and implicit biases.157 testifying police officers play a critical role in supporting these stories, as they provide “expert” authority on gang activity and membership,158 and judges are exceedingly deferential to their expertise.159 154 see, e.g., people v. angulo, 159 n.y.s.3d 427, 429 (n.y. app. div. 2022) (holding that the trial court did not abuse its discretion in finding gang evidence more probative than prejudicial); people v. hilts, 134 n.y.s.3d 563, 568 (n.y. app. div. 2020) (same); people v. davis, 41 n.y.s.3d 160, 160 (n.y. app. div. 2016) (same); people v. wilson, 788 n.y.s.2d 383, 383 (n.y. app. div. 2005) (same); supra text accompanying notes 123–24 (explaining that the many ways gang evidence can be probative and the use of limiting instructions tips the scales in favor of admissibility). 155 see hildebrand, supra note 37, at 158–59 (noting that “broad judicial deference is afforded to police officers endorsed as expert witnesses” despite defendants being unfairly prejudiced). 156 see howell, prosecutorial misconduct, supra note 128, at 704–06 (outlining the inflammatory statements made by new york county district attorneys in the trials following a harlem housing project gang takedown). 157 see id. at 708. 158 for an example of what this testimony may look like and how it may support a prosecutor’s narrative, see hildebrand, supra note 37, at 156–58. in this example, the officer told the jury his belief the defendant was a gang member, and that he shot the victim out of revenge for the shooting of a fellow gang member, as was customary gang practice. id. at 157. he went on to explain the dynamics of the gang in question, and how they “commit crimes such as rape, murder, assault with firearms, car and narcotics thefts, and burglary, all to enhance their gang’s reputation and to profit financially.” id. at 157. despite a credible alibi, the defendant, a black man, was charged with murder by an all-white jury after an unusually short deliberation. id. at 158. 159 see lvovsky, supra note 37, at 5 (suggesting “that courts came to recognize police work as a matter of professional expertise in large part through the interconnections and, often, structural biases of the criminal justice system”). 1365 colum. j. race & l. [vol. 15:1337 by virtue of its subconscious grounding, implicit bias is particularly dangerous in its influence over gang expert evidence and jury decision making.160 courts’ insensitivity to the operation of implicit bias within these scenarios skews the fairness of criminal trials against alleged gang members, particularly those of color.161 despite any probative value police expert testimony may provide, criminal case outcomes are only as just as the evidence that informs them.162 therefore, when biased evidence leads to biased outcomes, it is impossible for the probative value of the evidence to outweigh its prejudicial effect. 1. implicit bias of testifying officers given that the expertise of testifying officers is based on their personal knowledge and experience, police expert testimony in gang prosecutions is typically given by a gang unit officer or a detective familiar with the gang or similar gangs.163 there is, however, a high risk that the testimony of these officers is tainted by racial and anti-gang bias.164 although young men join gangs for safety and the fulfillment of basic human needs,165 “[g]ang units in police departments show high levels of implicit bias not seen in other police departments and are prone to think of 160 see hildebrand, supra 37, at 190 (“a significant body of social and neuroscience research shows that implicit bias often impacts juror decision making in criminal trials.”); katheryn yetter & brian m. lee, judging the book by more than its cover: a symposium on juries, implicit bias, and the justice system’s response 2 (2021), https://www.judges.org/wp-content/uploads/2021/04/njc_white-paper_web_singlepages-1.pdf [https://perma.cc/ph8p-4u6a] (“[implicit biases] can affect a juror’s understanding of the facts, decision-making, and behavior without them even realizing it, and can lead to unfair or unjust results.”). 161 see hildebrand, supra note 37, at 178. 162 see id. 163 see, e.g., people v. inoa, 34 n.e.3d 839, 842 (n.y. 2016) (noting that the expert was a detective who previously participated in a takedown of the defendant’s gang); people v. goldman, 139 n.y.s.3d 48, 49 (n.y. app. div. 2020) (holding that a police detective was properly permitted to testify as an expert on gang language). 164 see hildebrand, supra note 37, at 173 (noting that information from various sources, including the federal bureau of investigation, shows that racial bias is pervasive among police); rios & navarro, supra note 132, at 34 (“[g]ang detectives often see themselves as enemies of gangs and gang members.”). 165 see swaner, supra note 13, at 97 (arguing that gang membership is “for ensuring safety and survival in the face of weak social and economic supports and state violence”). see also laina sonterblum, gang involvement as a means to basic safety needs, new york university applied psychology opus, https://wp.nyu.edu/steinhardtappsych_opus/gang-involvement-as-a-means-to-satisfy-basic-needs/ [https://perma.cc/qb62-ubxa] (last visited jan. 11, 2024) (reviewing literature on factors for gang involvement through a hierarchy of needs framework). 2025] deconstructing 1366 and characterize alleged gang members as less-than human.”166 this collective dehumanization of gang members extends to more than just prejudicial testimony—there have been multiple instances of nypd gang experts being named defendants in lawsuits alleging violations of civil rights, including wrongful arrest, false prosecution, and unlawful use of force.167 as such, their biases are both pervasive and powerful, and these officers are immersed in an environment where negative stereotypes reinforce their work.168 in providing “expert” testimony on gangs, these officers immerse jurors in that very same environment, imparting upon them the very same biases that they follow.169 2. implicit bias of jurors jurors are susceptible to multi-layered implicit bias when confronted with police gang expert testimony. not only are jurors biased in favor of officer credibility but they also hold negative bias toward gang members and people of color.170 although judges instruct jurors to scrutinize expert testimony just as they would the testimony of other witnesses,171 many jurors may find this instruction difficult to follow with police experts. for example, white people are overrepresented in new york city jury pools,172 166 see howell, prosecutorial misconduct, supra note 128 at 122, at 709. 167 see id. 168 see jessica j. sim, joshua correll, & melody s. sadler, understanding police and expert performance: when training attenuates (vs. exacerbates) stereotypic bias in the decision to shoot, 39 personality & soc. psych. bull. 291, 298 (2013) (“if stereotypes continually provide a valuable heuristic [mental short cut] in a training environment, then even trained individuals may use them. . . . [t]his latter form of ‘training’ may exacerbate, not attenuate bias.”). 169 see hildebrand, supra 37, at 177 (noting the extreme prejudicial impact of police gang expert testimony). 170 see id. at 184–94. (discussing implicit bias in favor of officer credibility and negative bias toward gang members and witnesses of color). 171 see expert witness criminal jury instruction, n.y. state unified ct. sys., https://www.nycourts.gov/judges/cji/1-general/cji2d.expert_in_general.pdf [https://perma.cc/wp7t-khza] (last visited jan. 11, 2024) (“you should evaluate the testimony of any [expert] witness just as you would the testimony of any other witness.”). 172 see new york state justice task force, recommendations regarding reforms to jury selection in new york 3 (2022) http://www.nyjusticetaskforce.com/pdfs/report-on-recommendations-regarding-reforms-to-juryselection-in-new-york.pdf [https://perma.cc/fn4k-jzx7] (“[a]lthough 46% of the population of new york county identify as white, 60% of those who appear for jury service identify as white.”). see also bob cohen & janet rosales, 1367 colum. j. race & l. [vol. 15:1337 and this demographic tends to hold a more favorable view of police officers and their credibility.173 specifically, this demographic both consciously and unconsciously views police “as honest people who take their work seriously, as venerated members of society and protectors of their communities.”174 so, even with jury instructions that advise against giving undue weight to expert testimony, jurors cannot be expected to sufficiently identify and grapple with the unconscious favor they may give to police.175 as such, jurors assign more weight to police gang experts in comparison to lay witnesses.176 additionally, police testimony habitually presents gangs as criminal and violent,177 a representation that reinforces jurors’ positive views of police as community protectors and simplifies the complexities underlying gang cases.178 in addition to bias in favor of police credibility, many jurors hold negative biases towards gang members and people of color.179 although gang membership can include positive aspects for its members and even community,180 as discussed earlier, gangs are stigmatized and particularly susceptible to deviant labeling.181 some scholars have even noted that there can be a racial and ethnic disparity in manhattan jury pools: results of a survey and suggestions for reform 6 (2007), https://www.law.cuny.edu/wp-content/uploads/page-assets/academics/social-justice/clore/reports/citizen-actionjury-pool-study.pdf [https://perma.cc/vt6m-zyyw] (finding that in criminal court juries, “[w]hites were overrepresented by 43%, blacks were underrepresented by 43%, and hispanics were underrepresented by 78%”). 173 see hildebrand, supra note 37, at 184 (describing the positive view of police officers by the white demographic). 174 hildebrand, supra note 37, at 184 (citing jonathan m. warren, hidden in plain view: juries and the implicit credibility given to police testimony, 11 depaul j. for soc. just. 1, 2, 6, 12 (2018)). 175 see jonathan m. warren, hidden in plain view: juries and the implicit credibility given to police testimony, 11 depaul j. for soc. just. 1, 2, (2018) (“in the face of the strong favorable bias currently attached to police testimony by certain juror demographics, such a blasé attempt to convince a jury to treat these judicially proclaimed heroes as merely any other witnesses is not an effective solution.”). 176 see hildebrand, supra note 37, at 185. 177 see john m. hagedorn & bradely a. maclean, breaking the frame: responding to gang stereotyping in capital cases, 42 u. mem. l. rev. 1027, 1040 (2012). 178 see id. (“police expert testimony seizes on society's predisposition to simplify complex matters and reinforce beliefs consistent with popular stereotypes.”). 179 hildrebrand, supra note 37, at 186. 180 see swaner, supra note 13, at 104 (finding that “gangs provided a well of support, positivity, and protection for their members and the larger community.”). 181 see sou lee & bryan f. bubolz, the gang member stands out: stigma as a residual consequence of gang involvement, 45 crim. just. rev. 64, 66–7 (arguing that “[g]ang membership itself is often perceived to be deeply discrediting given several myths attached to the label”). 2025] deconstructing 1368 greater stigma attached to gang membership than criminal behavior itself.182 this stigmatization is evidenced in court through jurors’ view of gang members as individuals effectively separated from the rest of society.183 most jurors do not have first-hand experience with gangs, and thus improperly rely on this “othering” of gang members when making decisions.184 even worse, police expert testimony often encourages jurors to identify with and draw conclusions based on gang stereotypes that depict gang members as predators linked to drugs and violence.185 this label carries profound stigma, and when this stigma is coupled with the testimony of police gang experts, it is difficult for jurors to look beyond their biases and decide a case based on the facts before them.186 in conjunction with negative bias towards gang members, racial bias among jurors also injects gang prosecutions with unfair prejudice. it is well established that people of color— particularly black and latino people—are disproportionately criminalized, prosecuted, and incarcerated.187 this is especially true in new york city.188 but, rather than highlight the inequities of the criminal legal system, the mainstream media “perpetuates inaccurate narratives 182 see karen bullock & nick tilley, understanding and tackling gang violence, 10 crime prevention & cmty. safety 36, 43 (2008) (stating that some believe “[t]here is greater stigma attached to gang membership than crime”). 183 see lee & bubolz, supra note 180, at 66 (“[d]eviant groups are relegated into a ‘them’ category, effectively separating the dangerous classes from the rest of society.”). 184 see hildebrand, supra note 37, at 192 (arguing that because “most jurors do not have first-hand experience with street gangs, they are likely to rely on their stereotypes about gangs or on gang-related trial testimony”). 185 see id. (“[o]fficer gang expert testimony often encourages jurors to identify with and make decisions based on generalizations and gang-related stereotypes.”); lee & bubolz, supra note 181, at 66 (describing myths attached to the gang label, “including the assumption that gangs are inexorably linked with drugs and violence, they are resilient to any and all prevention/intervention efforts, and members are super predators”). 186 see hildebrand, supra 37, at 193 (noting that there are many ways police gang expert testimony improperly invites juror decision-making based on stereotypes and sweeping generalizations). 187 see michelle alexander, the new jim crow 2 (2010) (arguing that a racial caste system continues to exist in america through the criminal justice system). 188 see jesse barber & simon mccormack, a racial disparity across new york that is truly jarring, aclu of new york (dec. 16, 2022), https://www.nyclu.org/en/news/racial-disparity-across-new-york-truly-jarring [https://perma.cc/x3tc-xda3] (observing that black people are arrested and prosecuted more frequently than white people for the same crimes, resulting in black people being convicted of felonies at a rate over twenty greater than white people in manhattan). 1369 colum. j. race & l. [vol. 15:1337 of violence, criminality, and dishonesty among racial minorities that many unknowingly internalize.”189 these negative biases manifest in the attitudes of average people, so much so that a person’s features can influence someone’s perception of their character.190 thus, alleged gang members, who are overwhelmingly black and latino,191 face compounding bias, and jurors’ perceptions of their criminality as gang members are reinforced by their racial identities.192 d. police expert testimony is unreliable while unfair prejudice stemming from implicit bias is a serious issue surrounding the testimony of police experts in gang prosecutions, it is only part of the problem. police gang expert testimony is also unreliable, and this unreliability undermines the integrity of gang prosecutions and may support the conviction of innocent defendants. as the testimony of police experts is based on personal knowledge or experience, it evades frye’s reliability inquiry when judges rule on its admissibility.193 in limiting the scope of police expert testimony, inoa also does not mandate an inquiry into reliability.194 police officers are not disinterested parties and they often work closely with prosecutors to build cases and seek convictions against the criminally accused.195 as such, in cases where gang membership and activity are intertwined with the prosecution’s narrative, police officers are incentivized to 189 see hildebrand, supra note 37, at 186. 190 see heather m. kleider-offutt, alesha d. bond, & shanna e. a. hegerty, black stereotypical features: when a face type can get you in trouble, 26 current directions in pscyh. sci. 28, 28–9 (2017) (discussing “black face-type bias,” where people stereotype those with afrocentric features as aggressive, violent, and criminal). 191 see n.y.c. dep’t of investigation, supra note 2, at 34 (finding that ninety-nine percent of the nypd’s gang database is black or latino). 192 see hildebrand, supra note 37, at 186–93 (explaining how juror’s negative bias towards gang members and people of color both impact decision-making in criminal trials). 193 see people v. oddone, 3 n.e.3d 1160, 1163 (n.y. 2013) (holding that an expert opinion based on personal knowledge and experience is not based subject to a frye analysis). 194 see people v. inoa, 34 n.e.3d 839, 842–44 (n.y. 2016) (making no mention of reliability in holding that the subject matter of police expert testimony must be beyond the knowledge of the ordinary juror). 195 see hildebrand, supra note 37, at 185 (noting that jurors are usually unaware of police expert’s collaboration with the prosecution). 2025] deconstructing 1370 present evidence that aligns with this narrative.196 this evidence, however, is notoriously unreliable due to the nypd’s overbroad gang identifications and its problematic indicators of gang membership. given the collaboration between the nypd and prosecutors, it is understandable why the nypd would want to apply the gang label to as many groups as possible; gang evidence explains the inexplicable, and “gives rich color to an otherwise pale fact pattern.”197 but, the unreliability of police gang expert evidence creates a massive risk: convicting innocent, non-gang-affiliated individuals. 1. overbroad gang identifications police officers are given expert authority on gangs,198 but their gang identifications are overbroad. the gangs that are targeted by the nypd today are not the organized, hierarchical, and nationally-renowned gangs of the past.199 instead, they are groups of kids and young adults who live in the same housing project or neighborhood.200 while this difference does not 196 see id. (“[o]fficers want to prove themselves through their trial testimony—to show the prosecutor and court that they made the right decision to arrest the accused instead of some other person.”). 197 see hagedorn & maclean, supra note 176, at 1040–41 (characterizing trials as competing stories, and highlighting the explanatory and narrative value of police gang expert testimony). 198 see people v. bailey, 50 n.y.s.3d 53, 54 (n.y. app. div. 2017) (affirming that police experts may opine on the customs and practices of gangs). 199 see evers, supra note 1 (noting an nypd lieutenant’s view that today’s gang culture is different from the past, and how today there is less hierarchy stability among gangs); green & pranis, supra note 45, at 18 (noting that nationally renowned gangs like the bloods, crips, and latin kings were prevalent in new york city in the late 1990s); seth ferranti, how new york gang culture is changing, vice (aug. 18, 2015), https://www.vice.com/en/article/5gj9kb/how-new-york-citys-gang-culture-is-changing-818 [https://perma.cc/7m5c96ju] (interviewing a gang prevention specialist, who explains his view that there is a rise in gangs that are not connected to traditional “supergangs” like the bloods, crips, and latin kings). 200 see lisa evers, inside the nypd's dismantling, takedown of violent bronx gang, fox 5 new york (sept. 22, 2023), https://www.fox5ny.com/news/bronx-gang-takedown-nypd [https://perma.cc/fa62-274s] [hereinafter evers, gang dismantling] (describing the mass arrest of a gang known as “5zzly,” a name that reflections their location near175th street in the bronx); ferranti, supra note 198 (noting the rise is “hybrid gangs” which represent “local housing projects, parks, city blocks, and streets”). see also the brian lehrer show, “we asked the city for help and we got a raid”, new york public radio (jul. 10, 2014 ), https://www.wnyc.org/story/we-askedcity-help-and-we-got-raid/ [https://perma.cc/2ncb-2x6u] (detailing the nypd raid of two harlem housing projects which resulted in the arrest of forty teenagers and young adults). the 2014 raid of the manhattanville and grant houses was designed to prevent violence between feuding gangs, but community members believe the raid only worsened their problems. see id. (“but at the end of the day, the way they put together this investigation . . . to come up in these homes, trash them, be very unprofessional, break furniture … it was all just very uncalled for.”). one community member detailed how her three-year-old niece was traumatized after the raid: “if you can’t trust the police, who can you trust?” id. 1371 colum. j. race & l. [vol. 15:1337 minimize the violence that some of these groups perpetrate, it reflects how the nypd designates groups that are less clearly defined and less criminally-aligned as gangs of the past.201 the nypd’s gang definition requires that one of the primary activities of the group is the commission of crimes.202 however, the definition does not require that officers observe any crimes or make any arrests before applying the gang designation.203 as such, the nypd has unchecked discretion to designate any group as a gang based on mere suspicion.204 this allows race and class to become defining elements of a gang, as groups of troubled youths become more likely to be categorized as gang members if they are low-income and nonwhite.205 additionally, the nypd surveils low-income, non-white neighborhoods at a much higher rate, leading to a continuing cycle of overbroad and erroneous gang identifications within these communities.206 2. problematic indicators of gang membership in the cgd beyond identifying groups they consider gangs, police officers are also given expert authority over asserting who is an individual gang member.207 but, their methods for determining membership are also dubious and rooted in racism. the cgd’s two options for activation, as discussed in section i.a., require no criminal behavior and allow officers to designate an 201 see sonja sharp, why does the nypd think dance teams are street gangs?, vice (feb. 19, 2015), https://www.vice.com/en/article/qbe737/why-does-the-nypd-think-dance-teams-are-street-gangs-219 [https://perma.cc/al5k-5cut] (describing how the nypd is lumping dance crews together with actual street gangs, and noting how the nypd has shifted its attention smaller, younger, and more casually associated groups). 202 n.y.c. police dep’t, supra note 5, at 1. 203 id. 204 see zachariah d. fudge, gang definitions, how do they work?: what the juggalos teach us about the inadequacy of current anti-gang law, 97 marq. l. rev. 979, 991 (2014) (arguing that one of the most frequently cited gang definitions gives law enforcement the freedom to deem any group criminal through their suspicions). 205 id. at 991. 206 see tate ryan-mosely, a new map of nyc’s cameras shows more surveillance in black and brown neighborhoods, mit technology review (feb. 14, 2022), https://www.technologyreview.com/2022/02/14/1045333/map-nyc-cameras-surveillance-bias-facial-recognition/ [https://perma.cc/f6em-ngqm] (observing that stop and frisk searches and publicly owned cameras are concentrated in communities of color). 207 see hildebrand, supra note 37, at 157 (“[a police officer] also testified as a gang expert witness. in that capacity, based on a police-developed theory for gang member identification, he told the jury about his belief that [the defendant] was a [gang] member.”). 2025] deconstructing 1372 individual as a gang member based on factors like where they live, who they interact with, and how they dress.208 officers are also able to interpret trivial information from social media posts as an individual’s “self-admission” of gang membership with minimal oversight.209 as hostile outsiders, police do not accurately understand the language and culture of young people residing in under-resourced and impoverished communities.210 police gang experts mistake signs of their culture for gang membership and criminal conspiracy, as things like “clothing, acquaintanceship, and other outward symbols of urban youth culture are often unrelated to criminal purpose.”211 for example, “minority youth who grow up in areas with heavy gang activity often wear gang paraphernalia to blend in, intimidate others for selfprotection, or because it is fashionable among their peers.”212 this lack of cultural awareness among police gang experts not only perpetuates the perception that race and criminal gang activity are interchangeable, but it risks giving false gang member designations “expert” backing in the courtroom.213 3. potential to convict the innocent under the gang member label both overbroad gang identifications and problematic indicators of gang membership infect police gang expert testimony with a high degree of unreliability. given the truth-seeking function of the criminal process, this unreliability is dangerous in and of itself.214 but when 208 see n.y.c. dep’t of investigation, supra note 2, at 2 (outlining the options for cgd activation). 209 see id. at 8, 25–6 (explaining the lack of guidance and oversight surrounding social media selfadmissions); supra text accompanying notes 99–101, 105. 210 see rios & navarro, supra note 132, at 34–5 (noting how gang detectives often see themselves as enemies of gangs, and how they lack an in-depth understanding of the culture and community). 211 id. at 35. 212 id. 213 see id. at 34–5 (arguing that police conflate urban youth culture with gang membership and criminal activity, and noting how they are “the ultimate source of knowledge for judges and juries”). 214 see thomas weigend, should we search for the truth, and who should do it, n.c. j. int’l l. 389, 389 (2010) (“the criminal process . . . is about truth.”). 1373 colum. j. race & l. [vol. 15:1337 considering how gang evidence can be used to fill the holes in a prosecutor’s case and thus turn an innocent defendant into a guilty one, this unreliability becomes all the more alarming. as discussed in section i.b, gang evidence can serve a variety of purposes in criminal prosecutions.215 police gang expert testimony is especially useful for prosecutors due to its explanatory and persuasive value.216 but the power and utility of police gang expert testimony can also bear profound injustice. consider how police expert testimony is regularly relied on to prove motive.217 in cases where motive is lacking in other evidence, police gang expert testimony can fill in those crucial details.218 inexplicable homicides can be “transformed into a gang initiation ritual or a way to gain status in the gang by expert testimony, even when no evidence exists of the defendant being initiated or rising in rank.”219 the same problem applies to police gang expert testimony that contextualizes the crime or explains the relationships among individuals; false gang member designations and extremely unreliable gang evidence could be used to explain inexplicable factual circumstances, and thus erase the reasonable doubts that would force a jury to find a defendant not guilty.220 215 see supra text accompanying notes 117–118 (describing how gang evidence can provide necessary background, explain the defendant’s motive, or explain the relationships of the individuals involved). 216 see hagedorn & maclean, supra note 176, at 1040 (noting how police gang expert testimony can “explain the inexplicable” and “give rich color to an otherwise pale fact pattern”). 217 see people v. bailey, 110 n.e.3d 489, 498 (n.y. 2018) (upholding the admission of gang evidence to prove motive); people v. moore, 366 n.e.2d 1330, 1337 (n.y. 1977) (same); people v. benjamin, 162 n.y.s.3d 726, 726 (n.y. app. div. 2022) (same); people v. argueta, 149 n.y.s.3d 104, 104 (n.y. app. div. 2021) (same); people v. faccio, 822 n.y.s.2d 329, 330 (n.y. app. div. 2006) (same). 218 see hagedorn & maclean, supra note 176, at 1041 (“[p]olice expert testimony is regularly relied on to provide motive where one is lacking in other evidence.”). 219 id. 220 see mitchell eisen, brenna dotson, & gregory dohi, probative or prejudicial: can gang evidence trump reasonable doubt?, 62 ucla l. rev. disc. 2 (2014) (studying the potential biasing effect of gang evidence on jury verdicts, and finding that potent gang testimony led jurors to disregard reasonable doubt and vote to convict the defendant despite a lack of evidence related to the charge at hand); hagedorn & maclean, supra note 176, at 1040 (explaining the ability of gang evidence to “explain the inexplicable”); howell, prosecutorial misconduct, supra note 128, at 710 (arguing that the gang narrative increases the likelihood of wrongful conviction in conspiracy cases); rios & navarro, supra note 132, at 34–5 (describing police gang expert’s flawed perceptions of urban youth culture and the potential for abuse in designating individuals as gang members). 2025] deconstructing 1374 the prejudicial effect and unreliability of police gang expert testimony is a major cause for concern. fortunately, criminal defendants are not helpless in the face of this injustice. this note will now turn to the use of nonpolice gang expert testimony to combat the issues with police gang expertise. iii. an effective counterbalance: nonpolice gang experts thanks to the cgd and the prosecutorial tool of police gang experts, black and latino men in new york city face a particularly powerful form of criminal legal oppression. labeling groups of these men as gangs is reflective of law enforcement’s tendency to criminalize people based on race and class. but, the gang member label involves racial profiling that goes far beyond its stop-and-frisk predecessor.221 suspected gang members and their associates are subject to intensive police surveillance. additionally, police officer’s flawed perceptions of gang life and erroneous gang member designations are given immense evidentiary weight within the courtroom.222 this creates two issues. first, police gang expert evidence leads to unfair prejudice against alleged gang members.223 second, this evidence is unreliable, and it risks punishing innocent individuals who are not gang-affiliated.224 eliminating these issues entirely would require a massive shift in the status quo. not only would the nypd need to abolish the cgd and substantially reform their methods of gang policing,225 but trial judges would need to prohibit nypd officers from testifying as gang 221 see johnson, supra note 6, at 1042 (characterizing the nypd’s gang policing expansion as an outgrowth of stop and frisk that avoids public and judicial scrutiny due to its apparent racial neutrality). 222 see hayat, supra note 113, at 200 (recognizing the weight police gang expert testimony); naacp legal defense fund, supra note 31 (calling the nypd’s gang surveillance practices “overreaching and dystopian”); 223 see supra section ii.a. 224 see supra section ii.b. 225 see naacp legal defense fund, supra note 31 (“[t]he nypd must abolish this database. this heightened, racialized surveillance breeds significant distrust in black and brown communities and is antithetical to true public safety.”). 1375 colum. j. race & l. [vol. 15:1337 experts.226 while these solutions would completely remedy the injustice that targeted groups face, they may not be feasible. the nypd consistently opposes any meaningful reforms and has a history of obstructing them.227 additionally, the admission of police officers as expert witnesses in criminal trials is a firmly rooted practice that courts are likely unwilling to change.228 nonetheless, there is a solution that mitigates the prejudicial force and exposes the unreliability of police gang expert testimony: the testimony of nonpolice experts. the defense can introduce these experts,229 and in doing so, juries will be exposed to a more comprehensive and accurate portrayal of gang membership and the nuances of gang life.230 this part will discuss the use of nonpolice gang experts as a solution to the problems identified in part ii. beginning with a discussion of the value of nonpolice gang experts, this part will highlight who these experts could be and how their perspectives provide a counterbalance against the prejudicial force and unreliability of police gang expertise. this part will conclude with a discussion on the limitations of nonpolice expert testimony as a solution. 226 see hildebrand, supra note 37, at 159 (arguing that structural unfairness warrants the exclusion of police gang expert testimony in criminal trials). 227 dempsey & vitale, supra note 38. see also joel berger, reforming the npyd and its enablers who thwart reform, 55 new eng. l. rev. 1, 2 (2020) (expressing the author’s view that they have never encountered a government agency “more resistant to reform” and “more determined to hide its infirmities from the public” than the nypd). the doi’s report on the cgd also does not encourage reform. see n.y.c dep’t of investigation, supra note 2, at 3 (“evidence of harm from the cgd was not found.”). 228 see lvovsky, supra note 37 (arguing that judicial deference to police experts stems from the twentiethcentury professionalization of the police force and reflects structural biases within the criminal justice system). 229 both parties in a criminal prosecution can offer expert witnesses. see people v. collins, 811 n.y.s.2d 122, 123 (n.y. app. div. 2006) (holding that a finding of guilt was not against the weight of the evidence despite conflicting testimony from the defendant’s and the prosecution’s respective expert witnesses). 230 see rios & navarro, supra note 132, at 38 (stating that nonpolice gang experts provide “an in-depth understanding of the gang world” and can show the courtroom the contested nature of what constitutes a gang member and gang”). 2025] deconstructing 1376 e. the value of nonpolice gang experts although police officers hold a virtual monopoly in the courtroom when it comes to testifying as gang experts,231 they are not the only ones with gang expertise. gang expertise can come from many people and places within the community,232 and the testimony of nonpolice gang experts is an effective counterbalance against the prejudicial effect and unreliability of police gang expert testimony.233 1. police gang experts vs. nonpolice gang experts police officers are qualified as gang experts due to their specialized knowledge, skills, training, or experience.234 however, under this same legal standard, many others are also qualified to be experts on gangs, including community workers, former gang members, friends or family of gang members, and even gang members themselves.235 not only do these individuals meet the requisite legal standard for expertise, but they can also provide unique and more reliable testimony about gangs and gang members than police gang experts.236 unlike police officers, these nonpolice experts understand gangs from the inside. they live and work amongst gang members, and truly understand the culture and community.237 police officers, on the other hand, approach gangs as hostile outsiders, 238 and their perspectives are 231 see id . at 22 (noting that “over 95% of gang experts hired by prosecutors are police”). 232 see id. at 2. 233 see id. at 38 (arguing that nonpolice gang experts “balance the scale” against police gang experts). 234 see people v. inoa, 34 n.e.3d 839, 842 (n.y. 2016) (qualifying a detective as an expert in decoding gang phone conversations due to his experience with the gang). see also guide to n.y. evidence rule 7.01 opinion of expert witness, n.y. state unified ct. sys., https://www.nycourts.gov/judges/evidence/7opinion/7.01_opinion%20of%20expert%20witness.pdf [https://perma.cc/49gv-dux6] (stating that a person may be qualified as an expert by “knowledge, skill, experience, training, or education”). 235 see rios & navarro, supra note 132, at 25–26 (identifying these types of gang experts in accordance with the legal definition: “special knowledge, skill, experience, training, or education that will assist the jury to understand gangs and reach a decision in the case”). 236 see rios & navarro, supra note 132, at 26. 237 see id. at 35 238 see hildebrand, supra note 37, at 161 (describing how concentrated surveillance and enforcement is viewed as hostile and heightens distrust between targeted communities and police); rios & navarro supra note 132, at 34 (“[g]ang detectives often see themselves as enemies of gangs and gang members.”). 1377 colum. j. race & l. [vol. 15:1337 often tainted by political and stereotypical biases.239 for example, the public and political demand for crime control might make officers prone to a “protect and serve” mentality, whereby they describe and treat defendants as predators in need of containment.240 as such, police gang experts and nonpolice gang experts will likely disagree with each other about what constitutes gang activity and gang membership.241 this disagreement, however, can be a vital source of adversarial fairness, as nonpolice expert testimony can mitigate the prejudicial effect and expose the unreliability of police gang expert testimony. 2. nonpolice gang expert testimony mitigates prejudice as discussed in section ii.a, police gang expert testimony unfairly prejudices alleged gang members by promoting inflammatory gang narratives that capitalize off of multidimensional biases.242 although nonpolice experts cannot change the biases of testifying police officers, they can change how alleged gang members are perceived by the jury. in providing a perspective that comes from inside targeted communities,243 these experts can deconstruct the stigma surrounding gang membership by highlighting the oppressive social structures that breed gang association, as well as discussing how gangs provide individuals with protection, stability, and a sense of belonging.244 while police experts dehumanize alleged gang members and invariably connect gang membership with violent criminality,245 nonpolice experts 239 see rios & navarro, supra note 132, at 34. 240 see id . 241 see id. at 27–34 (outlining survey results in which all of the nonpolice expert respondents overwhelmingly disagreed with police gang expert testimony given in california cases). 242 see section ii.a (discussing the implicit biases of testifying officers and jurors). 243 see rios & navarro, supra note 132, at 38 (advocating for the insider knowledge of nonpolice gang experts). 244 see garot, supra note 11, at 2 (defining gangs in relation to their oppression by dominant social institutions); swaner, supra note 13, at 104–05 (highlighting how gang members sought physical protection, economic opportunity, and love and emotional support). 245 see hagedorn & maclean, supra note 176, at 1040 (stating that police gang expert testimony invariably presents gangs as criminal and violent); howell, prosecutorial misconduct, supra note at 128, at 709 (describing how police officers dehumanize gang members). 2025] deconstructing 1378 humanize alleged gang members and address how police are “ideologues dedicated to the ‘convict the defendant’ attitude.”246 regardless of the facts of a given case, an insider’s understanding of gangs would help juries dispel misconceptions that gang membership is indicative of violent criminality, and thus promote unbiased decision-making.247 3. nonpolice gang experts expose unreliability as discussed in section ii.b, police gang expert testimony is notoriously unreliable due to overbroad gang identifications and problematic indicators of gang membership.248 this unreliability rests on police officer’s lack of cultural understanding and their tendency to conflate youth culture in low-income black and latino neighborhoods with gang membership and criminal activity.249 this is dangerous given the possibility of convicting innocent, non-gangaffiliated individuals. however, this unreliability can be exposed by nonpolice gang expert testimony. not only can nonpolice experts show the courtroom the contested nature of what constitutes a gang, but they can also provide an insider explanation of why police indicators of gang membership are flawed.250 nonpolice expertise is thus a control for police expertise— should a police expert provide inaccurate information, the nonpolice expert may provide the missing link for jurors to understand the difference between the criminal gang world and lowincome youth culture.251 highlighting this difference for the jury has a two-fold effect. at a high level, it counters social perceptions that view gang membership and racial membership 246 see rios & navarro, supra note 132, at 38. 247 see id. (“[i]ncluding the opinions of people who understand the gang experience from the inside is a way to create equality in the courtroom.”). 248 see supra section ii.b. 249 see rios & navarro, supra note 132, at 34. 250 see id. at 38 (“[n]on-police gang experts can show the courtroom the contested nature of what constitutes a gang member and gang . . . .”). 251 see id. 1379 colum. j. race & l. [vol. 15:1337 interchangeably.252 but as a practical matter within the courtroom, it exposes the unreliability of police expertise, lessening the danger of unjust outcomes and furthering the truth-seeking function of the criminal process.253 f. limitations of nonpolice expert testimony while nonpolice gang expert testimony is a powerful tool for criminal defendants who are alleged gang members, this solution nonetheless has its limitations. this section will discuss potential problems with finding and funding nonpolice experts, as well as the inability of nonpolice expert testimony to address the broader issues facing gang members in new york city. 1. issues finding and funding nonpolice experts while the defense may introduce a nonpolice expert,254 several factors make doing so difficult. first, even if these experts offer opinions that are sympathetic to gang life and supportive of alleged gang members, hostile and intimidating courtroom environments may discourage them from testifying.255 for those who are gang members or former gang members, the idea of testifying in open court may seem unfathomable given the traditional code of silence that governs most gangs and the threat of violence that comes with breaking it.256 252 see id. at 34 (“police testimony also reinforces the perception that race—as understood by skin color and ethnic and sub-cultural symbols—and criminal gang activity are interchangeable.”). 253 see weigend, supra note 214, at 339 (arguing that the criminal process is about truth-seeking). 254 see people v. collins, 811 n.y.s.2d 122, 123 (n.y. app. div. 2006) (noting conflicting testimony from the expert witnesses of the defendant and the prosecution). 255 see alan jackson, prosecuting gang cases: what local prosecutors need to know 5 (2004), https://ndaa.org/wp-content/uploads/gang_cases1.pdf [https://perma.cc/8jyt-jsnh] (noting that hostile and intimidating courtroom environments are one of the many problems that arise in gang trials). 256 see john anderson, gang-related witness intimidation, 1 nat. gang ctr. bull. 1, 1 (2007) (“[g]ang members so frequently engage in witness intimidation that it is considered part of normal gang behavioral dynamics.”); gregg w. etter, common characteristics of gangs: examining the cultures of the new urban tribes, 5 j. of gang rsch. 19, 20 (1998) (discussing how the “omerta” code of silence from the italian mafia has influenced the customs of modern street gangs). 2025] deconstructing 1380 there are, however, many nonpolice gang experts who offer their testimonial services for hire.257 while these former gang members and community workers offer an extremely valuable perspective, inadequate funding may prevent indigent defendants represented by public defense offices from obtaining their services.258 new york defense attorneys, however, may receive expert funds from the court provided they make an adequate showing of the expert’s necessity.259 2. the ineffectiveness of nonpolice experts in a broader context in addition to problems with finding and funding nonpolice gang experts, their testimony only extends to combatting the broader criminal legal issues outlined in this note. over ninety percent of convictions in new york state are the result of guilty pleas, 260 so it is exceptionally rare that nonpolice experts will find their use at trial. while this does not discount their value in deconstructing the gang menace reinforced by police and prosecutors, truly eliminating the oppression that alleged gang members face requires deconstructing the gang menace on a much larger scale. conclusion gang violence is a serious issue, but so is justice and ending oppression. black and latino men in new york city are currently at the center of a fallacious gang menace constructed by the courts, the nypd, the media, and elected officials. to make matters worse, when alleged 257 see, e.g., gang expert witness, taylor austin group, https://gangcolors.com/gang-expert/ [https://perma.cc/2zvq-vc9s] (last visited jan. 14, 2024); legal gang expert, the homie hangout, https://thehomiehangout.com/about/ [https://perma.cc/xk65-twxq] (last visited jan. 14, 2024). 258 see nyc council members demand funding for public defense, right to counsel, the legal aid society (june 20, 2023), https://legalaidnyc.org/news/nyc-council-members-increased-funding-public-defenseright-to-counsel/ [https://perma.cc/nb6p-b2xf] (calling on mayor eric adams to support a budget increase for underfunded public defender offices to ensure the adequate representation of indigent defendants). 259 see n.y. county law § 722-c (mckinney 2023). 260 the new york state association of criminal defense lawyers, the new york state trial penalty: the constitutional right to trial under attack 3 (2021) https://www.nacdl.org/document/newyorkstatetrialpenaltyrighttotrialunderattack [https://perma.cc/4ax8c7sy] 1381 colum. j. race & l. [vol. 15:1337 gang members are arrested and choose to contest their criminality at trial, this gang menace is given immense evidentiary power through the prejudicial and unreliable testimony of police “gang experts.” to truly deconstruct the gang menace, every actor must play their part. the courts must refuse to give police officers expert authority on gangs. the nypd must abolish the cgd and end its racial profiling practices for good. the media must stop presenting young black and latino men as senseless super predators. but most importantly, new york city’s elected officials must invest in marginalized communities and address the structural failures that are the root causes and main drivers of gang violence. only then will the gang menace lose its power and cease to justify the oppression of new york city’s black and latino men. unfortunately, such a radical deconstruction of the gang menace is idealistic. while this deconstruction may not be feasible on a broad scale, it may nonetheless be feasible within the courtroom. nonpolice gang experts can mitigate the prejudicial effect and expose the unreliability of the dominant police narrative. not only can these experts promote greater truthseeking within the criminal process, but they can shed light on the gang menace and its problematic implications. gang members, after all, are human beings. the least the criminal legal system can do is afford them the fairness that every human deserves. columbia journal of race and law vol. 11 january 2021 no. 1 article uprooting authoritarianism: deconstructing the stories behind narrow identities and building a society of belonging john a. powell! and eloy toppin, jr.† authoritarianism is on the rise globally, threatening democratic society and ushering in an era of extreme division. most analyses and proposals for challenging authoritarianism leave intact the underlying foundations that give rise to this social phenomenon because they rely on a decontextualized intergroup dynamic theory. this article argues that any analysis that neglects the impact of dominance as a legitimizing characteristic of in-group formation and identity construction based on dominant in-group membership will fall short of understanding the surge of authoritarianism. in the west, and the united states in particular, this dominant ingroup takes shape around the ideology and social ! john a. powell is the director of the othering & belonging institute and a professor of law, african american, and ethnic studies at the university of california, berkeley. he was previously the executive director at the kirwan institute for the study of race and ethnicity at the ohio state university and the institute for race and poverty at the university of minnesota. prior to that, john was the national legal director of the american civil liberties union as well as a co-founder of the poverty & race research action council where he led the development of an “opportunity-based” model that connects affordable housing to education, health, health care, and employment. he is also wellknown for his work developing the frameworks of “targeted universalism” and “othering and belonging” to effect equity-based interventions. john serves on the boards of several national and international organizations and has taught at numerous law schools including harvard and columbia university. † eloy toppin, jr. is a researcher and policy analyst at the othering & belonging institute where he focuses mainly on housing justice and antidisplacement issues. he also co-teaches a critical race theory course at u.c. berkeley’s goldman school of public policy (gspp). prior to his work at the institute, eloy worked in the united states senate on transportation, environmental, energy, and agricultural policy. he holds a master’s degree in public policy from gspp and is a graduate of williams college. 2 colum. j. race & l. [vol. 11:1 force of whiteness. whiteness, as the bonding element of a dominant identity-based in-group, compels narrow identities and exclusive group membership. it also makes promises of social gain and advantage to those constituted as white, the erosion of which is the source of the authoritarian uprising in the united states. this article discusses the establishment of the western metanarrative, and whiteness’s relation to it, and then advances a strategy to replace it with a more inclusive narrative of deep belonging, offering guidance to the social justice movement in its work toward this end. i. introduction: an age of authoritarianism ......................4 ii. understanding the nature of authoritarianism.............7 a. the function of anxiety in the othering and belonging process ....................................................10 iii. critique of decontextualized intergroup theory: the incomplete response to authoritarianism.............13 a. the role of whiteness in intergroup construction.............................................................16 iv. immigration policy and the construction of race.........21 a. patriarchy and the authoritarian male self...........24 b. the evolving boundaries of whiteness...................26 c. racial prejudice as group positionality..................29 d. the whiteness paradigm and its impact on immigration policy...................................................31 e. the price of the ticket: the problem with same-ing...................................................................35 f. conservatives and the pace of (racial) change......37 v. western ideology and the fiction of whiteness ............40 a. objective reasoning or a biased worldview?..........43 vi. a society and political economy shaped by an exclusionary “we”..........................................................45 a. the social death......................................................45 b. globalization and the nation-state.........................46 c. the violent process of white racialization ............48 d. the western self and capitalism............................51 e. understanding neoliberalism and its connection to the western subject and authoritarianism........53 f. dealing with polarization........................................62 vii. where do we go from here?.........................................69 2021] uprooting authoritarianism 3 a. a new imagined order............................................69 b. the multiple self, spirituality, and a society of belonging.................................................70 c. spirituality and engagement ..................................72 d. unearthing the multiple self ..................................74 e. working toward a just world for all .....................77 4 colum. j. race & l. [vol. 11:1 i. introduction: an age of authoritarianism now more than ever, it is important to move toward a society of belonging where every life is truly valued, where differences are seen as strengths, and no one is left to suffer outside of the circle of human concern.1 the world that we instead inhabit is one where nations and people are fearful of difference, increasingly xenophobic, and where lives are valued differently depending on skin color, nationality, ethnicity, and religion. the need for belonging has become all the more urgent in the face of rising ethno-nationalism and authoritarianism around the globe. in the united states and elsewhere, these phenomena have surged forward at alarming rates. countries like the united kingdom, france, and hungary have elected or flirted with the election of far-right, authoritarian leaders.2 across europe, in poland and austria, anti-immigrant nationalist parties are securing blocs of parliamentary power.3 demagogic leaders like rodrigo duterte in the philippines and narendra modi in india strategically incite social divisions and inflame nationalist sentiment to consolidate and maintain influence and control.4 currently, over fifty-three percent of the world lives under authoritarian leadership not including brazil and the united states.5 over one third of nations have walls.6 the retreat of 1 see sources cited infra note 26, at 32, and accompanying text (discussion on the circle of human concern). 2 stephen menendian et al., haas inst. for fair & inclusive soc’y, 2017 inclusiveness index: measuring global inclusion and marginality, (dec. 2017), http://haasinstitute.berkeley.edu/sites/default/files/haasinstitute_2017inclusive nessindex_publish_dec31.pdf [https://perma.cc/r25j-zwjm]. 3 id. 4 id. 5 garry kasparov & thor halvorssen, opinion, why the rise of authoritarianism is a global catastrophe, wash. post (feb. 13, 2017, 1:32 pm), https://www.washingtonpost.com/news/democracy-post/wp/2017/02/13/why-therise-of-authoritarianism-is-a-global-catastrophe/ [https://perma.cc/lg76-pv4m] (reporting that the human rights foundation’s research shows that ninety-four countries live under non-democratic regimes, equaling fifty-three percent of the planet’s population). 6 simon tomlinson, world of walls: how 65 countries have erected fences on their borders—four times as many as when the berlin wall was toppled—as governments try to hold back the tide of migrants, daily mail, https://www.dailymail.co.uk/news/article-3205724/how-65-countries-erectedsecurity-walls-borders.html [https://perma.cc/lp9k-suuc] (aug. 22, 2015, 3:55 am). 2021] uprooting authoritarianism 5 democratic institutions and norms currently underway is cause for great concern. in the united states, a rightward surge is underway as the country is in a period of extreme fracturing. to our closest allies and to our neighbors, our divisions appear insuperable. canadian author stephen marche writes in his essay, “america’s next civil war,” that “there is very much a red america and a blue america. they occupy different societies with different values” and because of the instability this deep divide creates, canada should disentangle its fate with that of the united states.7 much attention and analysis has gone into understanding not only deep division, but the underlying forces animating authoritarianism and what can be done to mitigate its effects. the predominant discourse around this phenomenon, however, has operated in an incomplete fashion. it has opted for an explanation decontextualized of identity construction and intergroup dynamics. the literature undertheorizes the social conditions created when a society’s in-group constitutes itself around the idea that it has the right to dominate the rest of the population and the strong desire this creates for individuals to be a part of and build their identities around membership in that group. this claim to the entitlement to dominate varies across contexts and can be built upon race, religion, ethnicity, gender, or other characteristics used to form exclusive group membership. however, in the west, and in the united states in particular, the in-group forms around the aggressive guardianship of whiteness and the presumptions to domination that it claims. attachment to this group and the tending to identity it performs lie at the heart of authoritarianism in this setting. understanding this central aspect will determine the strength of the response to this destructive force and whether or not society can root it out. namely, attempting to thwart authoritarianism without unseating whiteness may suppress the force of authoritarianism temporarily but will leave the underlying causes at the center of authoritarian surges intact. accommodating authoritarian sensibilities, as mainstream analyses of authoritarianism call for, demands an unjust exclusion of marginalized identities or suppression of 7 stephen marche, america’s next civil war, walrus, https://thewalrus.ca/americas-next-civil-war/ [https://perma.cc/sp62-gfsy] (june 2, 2020, 3:57 pm). 6 colum. j. race & l. [vol. 11:1 characteristics that make them different. while it is true that people are innately sensitive to difference and that people who tend toward authoritarian reaction are more likely to perceive difference as threatening, it is also true that much of what people understand as differences are socially constructed. dominant identities like whiteness are constructed when differences are given social meaning and labeled as inferior. doing so makes affiliation with people who have these “inferior” qualities particularly abhorrent to people within the dominant identity group who have a heightened sensitivity to difference. suggesting that people who are “othered” as marginal and inferior either erase their differences through assimilation or have their membership within society restricted and regulated is misguided because it naturalizes the social construction of dominant identities and ignores the often-violent forms the construction process takes. this article begins with an outline of the common characterizations of authoritarianism as articulated by two of the leading academics on the phenomenon, behavioral economist and political psychologist karen stenner and new york university professor and social psychologist jonathan haidt. the pair argues that certain people are naturally predisposed to desire authoritarian control in times of rapid change, as these periods of rapid change increase anxiety among this group. this article critiques that perspective by offering that although stenner and haidt get much correct about the nature of authoritarians, their analysis lacks context on the socially determined interpretation of change. not all change induces extreme anxiety. here, we explore why certain populations are interpreted as a negative change that creates backlash and root that exploration in the process of othering, or building an in-group and identity around dominance, superiority, and exclusion. in part iii, we attempt to incorporate this framework into intergroup dynamic theory and explain how the united states’ dominant identity of whiteness shapes intergroup relations. in part iv, we illustrate how the debate over immigration policy is influenced by and filtered through this sense of white entitlement to dominance. those situated within this paradigm, we show, do not necessarily see it as a force at work. this oversight leads to a misinterpretation of the immigration issue and erroneous policy prescriptions, in our view. part v explains in greater depth what we mean by “situated within this paradigm.” we hold that the western notion of the self, or the liberal subject, as well as the basic western social structure is not egalitarian but based on a hierarchical ordering of humanity. whiteness is defined as 2021] uprooting authoritarianism 7 existing at the top of the ordering and constitutes the dominant in-group, the rest of humanity being othered into lower rankings within the stratification. because the liberal subject and the basic social structure are ideologically interpreted as egalitarian, the othering and stratification is not observed, constituting the paradigmatic blindness. part vi shows the consequences for society of constituting the self in this hierarchical manner, with a particular focus on globalization, neoliberalism, and polarization. part vii concludes with offerings on constructing a self that does not need to dominate or be a part of an in-group built around superiority and dominance. we also offer recommendations for all, but particularly for the social justice movement, around the work needed to move society in this direction—toward a just world where all belong. ii. understanding the nature of authoritarianism behavioral economist karen stenner and social psychologist jonathan haidt, preeminent scholars on the topic of authoritarianism, write about the causes, forms, and tendencies of authoritarian uprisings. in their contribution to cass sunstein’s comprehensive volume on authoritarianism, can it happen here?, the pair provides a thorough description of the conditions that lead to authoritarian outbursts and the personality type that desires authoritarian responses, followed by a set of recommendations to quell such uprisings.8 their work serves as the basis of this article’s analysis. stenner and haidt argue that authoritarianism does not rise up as anomalous disruptions in an otherwise linear progression toward ultimate enlightenment and liberalism, but that authoritarianism is always there—latent and under the surface ready to be provoked by external factors.9 when many analysts of moments like the current one are caught off guard and interpret authoritarianism as coming from seemingly nowhere, stenner and haidt offer that periods of great intolerance to difference are in fact unsurprising and predictable.10 flares of authoritarianism, they assert, are a function of a predisposition to authoritarian leanings interacting with external normative threats to stability. by their estimation, around a third of any population has a personality predisposed 8 karen stenner & jonathan haidt, authoritarianism is not a momentary madness, but an eternal dynamic within liberal democracies, in can it happen here? 180 (cass sunstein ed., 2018). 9 id. 10 id. 8 colum. j. race & l. [vol. 11:1 to resisting complexity, diversity, and difference and desiring of authoritative crackdowns to compel simplicity and sameness when instigated.11 stenner and haidt also make sure to point out that people with authoritarian tendencies differ in significant ways from laissez faire conservatives and status quo conservatives, all of whom tend to get lumped together under the broad umbrella of “right-wing.” laissez faire conservatives, people generally categorized as classical liberals or libertarians, are of the right of center variety that favor market solutions and detest government attempts at wealth redistribution.12 status quo conservatives are “psychologically predisposed to favor stability and resist rapid change and uncertainty.”13 this segment of the right supports the security and dependability of institutions if they maintain an even keel and apply the brakes on sudden sociopolitical reform. authoritarians, on the other hand, “demand authoritative constraints on the individual in all matters moral, political, and racial, are not generally averse to government intrusions into economic life,” and are amenable to “willingly overturning established institutions that their (psychologically) conservative peers would be drawn to defend and preserve.”14 the latency of authoritarianism is surfaced, stenner and haidt argue, when activated by external threats that upset and provoke anxiety. these include a loss of faith in leadership, a splintering of public opinion, or a rupturing of the social fabric and perception of uniformity.15 even though certain people are psychologically predisposed to desire heightened authority when aggravated, many people who fall outside of this personality range can still find themselves susceptible to such reactions if the external threat is strong enough. when these anxieties are stimulated, the authoritarian demand is to eradicate diversity or restore the prevailing or pre-existing social order. authoritarianism urges a “structuring of society and social interactions in ways that enhance sameness and minimize diversity,” and call for or participate in “disparaging, suppressing, and punishing difference.”16 these appeals often result in support for “the actual coercion of others (as in driving a black family from the neighborhood),” and “demands for the use 11 id. at 210. 12 id. at 181. 13 id. at 182. 14 id. at 183. 15 id. at 186. 16 id. at 184. 2021] uprooting authoritarianism 9 of group authority (i.e. coercion by the state).”17 the condition in the world today is currently ripe for this latent tendency. while stenner and haidt provide many useful insights for understanding authoritarianism and the dynamics that provoke an uprising, they misunderstand critical aspects of the social fabric and thus arrive at conclusions inadequate toward the effort of constructing a society of true belonging. stenner and haidt find from their data analysis that “the notion that populism is mostly fueled by economic distress [is] weak and inconsistent.”18 instead of focusing on economic anxiety, they suggest, efforts are better aimed toward being more mindful of the concerns of people with authoritarian-leaning personalities. to this end, the authors urge that to minimize authoritarian tendencies in society, we must promote “the abundance of common and unifying rituals, institutions, and processes.”19 this recommendation by stenner and haidt misses how challenging that may be in societies built on an extreme process of othering.20 in the united states, race has been central to the process of othering and self-making. there is also a central role of gender domination. one may note that the process of othering is not limited to race and gender. sexual orientation, religion, differently-abled people, and other identities have all been important in the construction of the other and therefore the construction of who is the belonging normative “we.” as stenner and haidt state, it is important to give attention to the potential for authoritarian tendencies to be activated by normative threat in roughly a third of the population. however, the threat is deeper than they presume and the accommodation of such a tendency much more problematic. by ignoring the centrality of othering to the process of self-making, they overlook how important an association with dominance is to the activation of authoritarian reactions. their promotion of “common and unifying” practices leaves in place and legitimizes identity groups based in dominance. instead, a more effective response would be to displace dominance as an organizing force in identity construction. before addressing these points, however, it is important to thoroughly understand the conditions that produce anxiety and can be used to stoke authoritarians and right-wing identity-based nationalism. 17 id. 18 id. at 207. 19 id. at 211. 20 see infra note 26 and accompanying text. 10 colum. j. race & l. [vol. 11:1 a. the function of anxiety in the othering and belonging process humans’ threat perception defines how they experience anxiety, both individually and collectively, in a changing world.21 while this is consistent with stenner, haidt, and others related to authoritarianism and normative threat, there are some important additional insights that are less dependent on the concept of latent authoritarianism. not all change produces threat, and there are certain types of change that are more important in producing anxiety or threat.22 the anxiety associated with rapid change might be most acutely experienced by people with authoritarian tendencies, but the general experience of anxiety is more inclusive. virtually all people will experience anxiety with a heightened degree of change across a number of salient factors. while there are some scholars who are skeptical of the theory of authoritarianism—this article does not dispute the theory—the psychological underpinnings of anxiety stand on firmer ground. in regard to anxiety, people have a relationship to the conditions and environment they inhabit or from which they come. people have adapted over a long period of time to the environment around them. but, when the environment changes at a rate faster than the ability to adapt, people experience stress, anxiety, and possibly threat.23 yet, the environment is constantly changing, and so are the people in it. this may go largely unnoticed because of the rate of change. on one hand, change is often welcomed and indeed seen as necessary for growth; however, the rate of change and the nature of change matters. while those with authoritarian tendencies may be more challenged by change, all people will find change difficult and even impossible at some rate.24 a number of people have begun to focus on the anxiety and stress of rapid change. thomas friedman, for instance, describes the current era as one of accelerated change. he focuses on three accelerating areas that are causing anxiety and stress. 21 collective psych. project, a larger us (2018), https://www.collectivepsychology.org/wp-content/uploads/2019/05/a-largerus.pdf [https://perma.cc/yn3k-mtja]. 22 see, e.g., blake m. riek et al., intergroup threat and outgroup attitudes: a meta-analytic review, 10 personality & soc. psych. rev. 336 (2006). 23 see infra note 26 and accompanying text. 24 id. 2021] uprooting authoritarianism 11 they are globalization, technology, and climate change.25 his list, however, leaves out two of the most important factors driving anxiety today—changes in migration patterns and changing demographics. according to authoritarian leaders and their followers, of concern is rarely the hidden pitfalls of technological advancement, or the threat of climate change (even the science behind it being flatly denied). to authoritarians, the gravest threat is always the “other.” in europe, the other is especially organized around anxiety toward muslims and migrants. this is increasingly true in the united states as well. but, the “other” does not have to be a recent migrant to occupy a central role. the other is defined as outside of who belongs and a threat to the “we.”26 this process is described as othering to reflect the dynamic aspect of the practice. othering is often critical to defining the “we.” the “we” are those that are considered to belong. re-defining and expanding who is in the “we” is the process of practicing belonging. constructing the “we” through belonging is also a dynamic process. determining who belongs and who does not belong then is a contested process that is not completely stable. marginality and belongingness not only change from society to society, but context to context. in one context, one racial or religious group might be most marginalized, but in another, a different social group might be. negative response to or fear of the reality of changing demographics and regional migration is a subset of othering. rapid change, and particularly change related to people, is likely to play a heightened role in the othering and belonging process. this process is never just about the other but also about the “we” and who belongs. 25 thomas l. friedman, opinion, the end of europe?, n.y. times (dec. 18, 2018), https://www.nytimes.com/2018/12/18/opinion/europe-franceeconomy.html. 26 to clarify terminology, it may be helpful to provide a brief overview of the processes being described. othering is a set of dynamics, processes, and structures that engender marginality and persistent inequality across any of the full range of human differences based on group identities. it is the action of systematically marginalizing a group of people or constructing an identity for them that labels them a threat too unrecognizable from the ingroup to coexist with. systematic othering occurs through a process called breaking—which is the construction through stories and practices of the image and perception of the outgroup as a threat and a subordinate. in contrast, the process of belonging— which happens through bridging—is the story-crafting that broadens the ingroup and defines whose full humanity is recognized and who will receive the concern and attention of society. john a. powell & stephen menendian, the problem of othering: towards inclusiveness and belonging, othering & belonging, summer 2016, at 14. 12 colum. j. race & l. [vol. 11:1 next, consider changes leading to anxiety, stress, and threat. rapid change along a salient axis is likely to produce anxiety. this reaction is biological. but how change is perceived and what types of change produce anxiety is largely social.27 this social process is based on a set of stories that signal to the population that the changes in demographics are either a threat, and must be contained or corrected in some way, or that these changes are good, and will make the population better off in the future. the first set of stories about threat can be categorized as breaking. breaking is a way of creating social distance. social distance or the threat of the other does not have to be based on race, language, or religion. the nature of the threat is a part of the story both about the other—the “them”—and how that relates to the “we.” it is not just that the other is a threat. this story easily pivots to the goodness and even the purity of the “we.” the story of the glorious, pure “we” is bound up with the story of “them.” in the context of change, the story of this narrow exclusive “we” is often tied to an imaginary past. one of the offered solutions to the changing and threatening future is an effort to retreat into the imaginary past when all was good and the “we” was uncontaminated.28 this story often asserts that there is a natural “we” and a natural other. neither assertion is true. the conditions that foster a “we” and the story that is the glue can always be contested. one may go back to huntergatherers or the family structure to look for a natural “we” with a given categorical boundary, but, even there, one is unlikely to find social groupings that could be described as fixed and natural. there is a gradient between breaking and bridging. first turning to breaking, if the story of the other is accepted as a mild threat, then one would expect the practice of breaking to also be mild. while if the story that the other is a profound threat is accepted, the subsequent breaking is expected to be extreme. the more extreme the breaking, the greater the chance for a violent response to the other. if one accepts that the other is a fundamental threat to one’s existence, then the project of normative practice—the “common and unifying rituals, institutions, and processes”29—called for by stenner and haidt 27 see john a. powell, racing to justice: transforming our conceptions of self and other to build an inclusive society 51, 229, 241 (2012) [hereinafter powell, racing to justice]. 28 robert a. williams, jr., savage anxieties: the invention of western civilization 31–48 (2012). 29 stenner & haidt, supra note 8, at 211. 2021] uprooting authoritarianism 13 becomes deeply problematic. for example, if whiteness is experienced and defined as purity and the domination of blackness, what then would be the normative practice in response? while not the majority, there is clearly a growing number of people who believe in white, or male, or christian dominance, not just descriptively, but normatively as well. stenner and haidt’s call for normative practice is more akin to assimilation—or “same-ing”—a flattening of differences and the continued maintenance of a social boundary in order to achieve agreeable coexistence—than it is to bridging. in the context of dominance and threat, the likely outcome is a deep and persistent breaking with very little opportunity for bridging. while same-ing presents a simpler solution, it is too deferential to a social identity that insists on diminishing others in order to generate a sense of value. bridging and ultimately creating a society of belonging is a steep challenge, even appearing impractical when social hierarchies are considered to be natural. however, this difficult work offers the highest likelihood of defeating, not just containing authoritarianism. iii. critique of decontextualized intergroup theory: the incomplete response to authoritarianism while stenner and haidt are correct in their assertion that authoritarian tendencies are provoked by normative threats not related to economic anxiety, their proposed response to authoritarianism is inadequate and based on an incomplete assessment of the issue. they end up aligning their sympathies with the authoritarian-minded because their reasoning lacks context of the social process of othering and is completely blind to the functioning of whiteness throughout the west and in the united states specifically. in recommending that greater attention be paid to people who resist diversity, the authors quip that “it is perhaps ironic that tolerance of difference is now threatened by liberal democrats’ refusal to recognize that many of their fellow citizens are . . . different.”30 whether intentional or not, this statement is a crafty sleight of hand. what the authors are really pointing out is not that liberal democrats do not recognize that some people are different, but rather that democrats do not agree that society should bend to the will of the intolerant. that the public should not have to acquiesce to people who would rather not have a liberal democracy or who would rather destroy democratic 30 id. at 210 (ellipses in original). 14 colum. j. race & l. [vol. 11:1 society than share it with people who are different. as stenner and haidt say themselves, “authoritarians may seek massive social change in pursuit of oneness and sameness, willingly overturning established institutions and practices.”31 consider this point in the context of donald trump’s rise to power through the provocation of authoritarian fears and his willingness to use the office of the presidency to pursue the political demands of the authoritarian-minded. stephen marche speaks to this point, worrying that democratic institutions—the mechanisms meant to preserve our society—have possibly weakened to the point of being ineffective in holding the united states together. he points to president trump’s “attacks on the fbi, the department of justice, and the judicial system” as evidence of the country’s veer “toward political collapse.”32 while marche sees the attack on institutions by the trump administration as an attack on structural norms, trump is also fighting for a society that values white people above all others. marche categorizes democracies as “built around institutions that are larger than partisan struggle,”33 but what if our current division is more than a mere partisan struggle? what if it is a struggle for who belongs and whom institutions should serve? yes, trump has attacked institutions—but not all of them. institutions he understands as serving the interests or elevating the status of people of color and other marginalized communities—the civil rights division of the department of justice, the department of education’s office for civil rights, housing and urban development, and federal judges appointed by president obama—these he has sought to destroy or render ineffective. however, he has strengthened and expanded the institutions where he sees opportunities to harm and oppress communities of color—the department of homeland security and its agencies of immigration and customs enforcement and customs and border protection being a prime example. additionally, most arguments in favor of accommodating the preferences of the authoritarian-leaning involve a decontextualization that obscures how embedded into social stability white racial hierarchy is and the degree to which it has shaped norms, values, and traditions. conservative journalist conor friedersdorf, for instance, in his endorsement of stenner’s scholarship, chooses to highlight an experiment by stenner in 31 id. at 183. 32 marche, supra note 7. 33 id. 2021] uprooting authoritarianism 15 which people identified as authoritarian-leaning experienced higher rates of anxiety in interactions with black surveyors as an example that underscores her point that “difference” rather than racism explains the reaction.34 this choice of evidence to support this point and his explanation as to why it does is a striking demonstration of this decontextualization at work. friedersdorf defends her by clarifying that “their intolerance of difference was much broader than racism, encompassing racial and ethnic out-groups, political dissidents, and people they consider moral deviants.”35 he points out that stenner finds that “intolerance manifests most commonly in demands for broad conformity, typically including . . . ‘the regulation of moral behavior, for example, via policies regarding school prayer, abortion, censorship, and homosexuality, and their punitive enforcement.’”36 for the authoritarian-prone, moral decay and decline evoke intolerance just as much as race.37 but, as will be discussed later in greater detail, political scientist wendy brown demonstrates that morality often serves the purpose of “challenging social justice with the natural authority of traditional values.”38 this is because harkening to traditional values developed via the exclusion of out-groups can stave off any threat to the status of the dominant in-group. these traditional values safeguard the identity of in-group members as constituted by notions of superiority to subordinated out-groups. morality and traditional values, this suggests, are not evidence that racism is not a factor. friedersdorf’s argument therefore lacks persuasiveness when he posits that “trumpist politics [is less so] rooted primarily in racism, or even an ideological belief in white supremacy, rather than an authoritarian ‘differentism,’”39 because he has not given due consideration to the possibility that ‘different’ may mean a departure from white racial hierarchy communicated through the language of morality and traditional values. stenner and haidt also call for deeper sympathies for the authoritarian-leaning by pointing out that “democracies will 34 conor friedersdorf, what ails the right isn’t (just) racism, atlantic (aug. 9, 2019), https://www.theatlantic.com/ideas/archive/2019/08/what-if-left-was-rightrace/595777 [https://perma.cc/lt84-w7bp]. 35 id. 36 id. 37 id. 38 see wendy brown, in the ruins of neoliberalism: the rise of anti-democratic politics in the west 37 (2019). 39 friedersdorf, supra note 34. 16 colum. j. race & l. [vol. 11:1 persistently harbor a certain proportion of residents (roughly a third) who will always find diversity difficult to tolerate.”40 but, they fail to question why certain traits are considered so different that their presence constitutes an otherness that is difficult to tolerate, and, moreover, who gets to decide which others are worth tolerating. this point, at least, they implicitly understand: white people—who occupy the dominant position in the west— were the only ones included in the data sample they used to analyze authoritarianism.41 a. the role of whiteness in intergroup construction questions of social group interactions have long been the terrain of intergroup relation theory, as thinkers within this field have sought to explain the conflicts and difficulties that arise between groups co-existing within a society. an examination of the field’s major themes and how they relate to stenner and haidt’s argument exhibit the absence of context that characterizes their depiction of authoritarian dynamics. both stenner and haidt’s analysis and intergroup relation theory as it pertains to the united states context fail to recognize the potency of whiteness to intergroup reactions mediated by race. the central question is: what bonds the white in-group so strongly? what factors interact with the construction of the white “we” and the non-white other? what stories and practices of belonging and breaking occur in this group’s construction and maintenance? to be clear, whiteness is not the only dominant identity defended by the process of othering. the privileged and heavily-guarded identities built around patriarchy and heteronormativity exist in the united states, the west broadly, and around the globe. other countries also grapple with the fracturing caused by nationalism and the exclusion built around their internal dominant groups. in myanmar, the genocide of the rohingya people is the virulent outcome of a buddhist majority’s assertion of dominance.42 in india, prime minister narendra modi, in demagogic fashion, has stoked the resentment and anxiety of hindu nationalism against the country’s muslim minority in brutal crackdowns to shore up power and control.43 globally, there are numerous examples of dominant groups’ angst and insecurities being activated and exploited for political 40 stenner & haidt, supra note 8, at 210. 41 id. at 189–90. 42 powell & menendian, supra note 26, at 16. 43 rana ayyub, opinion, mobs are killing muslims in india. why is no one stopping them?, guardian (july 20, 2018, 7:35 am), https://www.theguardian.com/commentisfree/2018/jul/20/mobs-killingmuslims-india-narendra-modi-bjp [https://perma.cc/m6bn-zf4c]. 2021] uprooting authoritarianism 17 gain, and often resulting in devastating oppression. in the united states context, and in the west generally, whiteness— crosscutting and interacting with patriarchy, heteronormativity, and other forms of super-ordination—is the prominent identity of the dominant in-group and is the locus of the authoritarian crisis at hand. social psychologist marilynn brewer’s contributions to intergroup relation theory includes an exploration of “optimal distinctiveness theory.” in her framing, the need for inclusion is central to group attachment. she describes inclusion-needs as being “satisfied by assimilation within the group while differentiation is satisfied by intergroup distinction.”44 but, is mere distinction and assimilation enough to satisfy members of a group, especially when the benefits of being a group member are marginal? what is it about association—principally for lowincome white people—that makes attachment to white identity so strong and their commitment to that in-group so deep? perhaps it is not mere association, but the psychological benefit of regarding oneself as superior through group membership that creates such a vociferously-defended bond.45 in this reading, whiteness needs a permanently subordinated group to maintain group cohesion. marche understands the role of race in driving the divisions he warns of, pointing to growing intolerance of diversity among white republicans as the source of the seeming irreconcilable chasm that has formed in recent years.46 a need to protect the status of whiteness, in his view, fuels much of the widespread resentment in the states and is stoking violent reactions. marche is correct to point to a deep investment in whiteness and a clinging to its promises as the root of the country’s crisis and as fueling the rise of violence. to interpret current social tensions as a contentious ‘tribalism’ is to analyze without context. the current state of affairs is not tribes of the same social status finding it harder to get along. what drives much of the acrimony in the united states is white identity defined in opposition to the groups it excludes and subordinates. what engenders white resentment is a sense that whiteness is losing its currency and luster for those who have depended on the psychological wages of whiteness in lieu of material benefit. as 44 marilynn brewer, the psychology of prejudice: ingroup love or outgroup hate?, 55 j. soc. issues 429, 429, 434 (1999). 45 see david roediger, the wages of whiteness: race and the making of the american working class (1991). 46 marche, supra note 7. 18 colum. j. race & l. [vol. 11:1 marche puts it, white resentment and intolerance to diversity derive from “a frustration in the face of minorities making significant gains” and warns “violence protects status in the context of declining influence.”47 brewer’s theorization of ingroup and out-group dynamics describes this relationship as “ingroup favoritism and protectivism provid[ing] fertile ground for perceived conflict and antagonism toward outgroups.”48 in this case, the in-group is protecting its status as white and the privileges whiteness confers. kimberlé crenshaw improves upon the analysis of intergroup dynamics by applying a race conscious perspective as she explores why “whites include themselves in the dominant circle—an arena in which most hold not real power but only their privileged racial identity.”49 in the article, race, reform, and retrenchment: transformation and legitimation in antidiscrimination law, crenshaw takes on the political right’s formal equality argument and the political left’s criticism of a rights-based strategy to support her argument that challenges from within the dominant ideological structure can result in black advancement. crenshaw critiques the left’s (who she categorizes as critical legal studies scholars) use of antonio gramsci’s concept of hegemony to explain black people’s condition in the united states.50 under this framework, black people, by buying into the legitimacy of american society, “accept and consent to their own oppression.”51 crenshaw pushes back against this argument, pointing out that, because of the brutality of racism, it is more accurate to say that black people have been coerced into an oppressed position and that overlooking civil rights progress reflects an underestimation of the power of black struggle against an oppressive society.52 in both views—the left’s argument and crenshaw’s rejoinder—the framework positions white people as the dominant group and black people as the dominated class. yet, using hegemony to describe the relationship between groups is 47 id. 48 brewer, supra note 44, at 438. 49 kimberlé crenshaw, race, reform, and retrenchment: transformation and legitimation in anti-discrimination law, in critical race theory: the key writings that formed the movement 116 (kimberlé crenshaw, neil gotanda, gary peller, & kendall thomas, eds., 1996). 50 id. at 108 (citing gramsci’s definition of hegemony as “a system of attitudes and beliefs, permeating both popular consciousness and the ideology of elites, [which] reinforces existing social arrangements and convinces the dominated classes that the existing order is inevitable.”). 51 id. 52 id. at 110. 2021] uprooting authoritarianism 19 more apt if it interprets socioeconomically elite and upper-class white people as the dominant group and lower-class white people among the subordinated groups. this reconfiguration places black people in an even lower position than the previous interpretation. instead of the dominated group, black people become a durably positioned outsider, who must remain there to serve as a tool to exert control over lower-class white people and compel them to identify and commit to membership in the “white in-group.” but it also better explains group acceptance and consent of its own oppression—it is just that in this case, the group is not black people but lower-class white people. it is the establishment of black people as the durably positioned outsider that encourages poor white people to favor white group membership, even when the pay-off from membership is minimal. it is this shared belief—embedded in the popular consciousness and the ideology of elites53—in the inevitability of the predominance of white people in society, or what herbert blumer describes as a shared sense of position (explored in greater detail below) that binds white people as a group. 54 the shared sentiment that “blacks were simply inferior to whites and therefore not included in the vision of america as a community of equals.”55 in fact, this “ideology of whiteness”— and the preservation of it—unites people across the political spectrum. when white liberals are criticized for a tepid commitment to racial justice or for being more sympathetic to reconciliation with the political right than to recognizing the full humanity of people of color, it is because of this implicitly shared belief. whether an explicit racist, an authoritarian, a traditional conservative, or a liberal—an a priori submission to the ideology of whiteness as natural necessitates the subordination and exclusion from the true “we” of black people. this forging of a white group consisting of elites and lower class white people who have less to gain from group membership is described by intergroup theorists—university of cambridge economists partha dasgupta and sanjeev goyal—as a “group pressure” that is applied toward individual members to assume narrow identities.56 if there are inter-group conflicts, resources to be protected, or other gains the group stands to make through exclusive membership, then the group will compel 53 id. 54 see herbert blumer, race prejudice as a sense of group position, 1 pac. soc. rev. 3 (1958). 55 crenshaw, supra note 49, at 114. 56 partha dasgupta & sanjeev goyal, narrow identities, 175 j. institutional & theoretical econ. 395 (2019). 20 colum. j. race & l. [vol. 11:1 its members to bury and leave latent the “perpetual possibilities” of identity.57 in this case, white elites interested in power, status, and wealth accumulation compel lower-class white people to suppress potential affiliations along lines of a broader identity or solidarity with people of color. instead, they are encouraged to embrace white group membership. the “hook” is an artificial sense of superiority in lieu of material benefits. dasgupta and goyal explain this as groups attempting to secure advantage by discouraging its members from joining other groups. groups do this by “implementing narrow rules” for group membership based on characteristics and criteria that group members are unable to control, like “caste, race, and ethnicity.”58 this may be compounded with brewer’s analysis that in-group maintenance produces a sense of superiority within the group and apprehension toward out-groups which “can lead to hostility and conflict between groups.”59 in reference to political groups, political leaders may intentionally instigate fear and hostility to obtain or keep hold of power.60 taken together, dasgupta and goyal’s along with brewer’s analysis describe the southern strategy that has taken hold of electoral politics in the united states since the 1960s, president trump’s demagoguery, and the general stoking of authoritarian tendencies happening across the globe. a race conscious reading of group dynamics’ interaction with whiteness in the united states also helps make sense of brewer’s theory of “in-group favoritism” existing independently from outgroup hate—or the “dynamic of bonding.” bonding is a facet of social capital theory and is the social practice of focusing on strength of connection within a social group as opposed to between social groups.61 brewer states that “outgroups can be viewed with indifference, sympathy, even admiration, as long as intergroup distinctiveness is maintained.”62 this idea evokes images of white people being generally tolerant of the presence of black people in society but responding with resistance, backlash, and anger at the prospect of having to live in the same neighborhoods or attend the same schools as black people. group distinctiveness is important for understanding racial 57 id. at 23. 58 id. 59 brewer, supra note 44, at 437. 60 id. 61 tristan claridge, what is the difference between bonding and bridging social capital?, soc. cap. rsch. & training (jan. 2, 2018), https://www.socialcapitalresearch.com/difference-bonding-bridging-socialcapital [https://perma.cc/brq2-ub7j]. 62 brewer, supra note 44, at 434. 2021] uprooting authoritarianism 21 segregation, but thinking of it in terms of separation for the purpose of mere distinction falls short of fully capturing the forces at work. if black people share the same resources, have access to the same educational opportunities, and are substantively equal members of society, what makes being white special enough to maintain that psychic sense of superiority? iv. immigration policy and the construction of race stenner and haidt explain their point of conciliation in the context of immigration. as stated earlier, one of the clearest distinctions between the “other” and the “we” in both the united states and europe. stenner and haidt believe that an authoritarian’s concerns over immigration are not pretext for pragmatic fears such as job insecurity but driven by discomfort and anxieties about “where this country is headed.”63 they legitimize this sentiment, arguing that if citizens are concerned about the rate of immigration, and by extension, the direction of the country, their concerns should be taken at face value and not assumed to be masking racism.64 however, this argument glosses over the different ways immigrants are perceived—and received—in a decontextualized, almost “formally equal” way, as though all racial conjoiners are erased and all newcomers are imbued with the same “equally other” identity in the eyes of the majority population. if it really is merely the rate of immigration that concerns authoritarians, why do only immigrants from certain regions, who are people of color, evoke enmity and hostile reactions? why are certain immigrants “othered” and some not? what are the notable “identities” that make someone seem like a disruption to the norm? what stenner and haidt overlook is the historical context of american immigration law. these laws reinforced the notion that the united states is a white, christian country, that only white people are fit for citizenship, and that an infringement on the whiteness of the nation erodes opportunities understood to be reserved for white people. this erosion results in white people’s negative views toward non-white immigration. they see it as a force corrupting the very promises the country is expected to keep. as ian haney lópez demonstrates, “law is one of the most powerful mechanisms by which any society creates, defines, and regulates itself,”65 and the “stark division” created by 63 stenner & haidt, supra note 8, at 211. 64 id. at 213. 65 ian haney lópez, white by law: the legal construction of race 7 (2 ed. 2006). 22 colum. j. race & l. [vol. 11:1 immigration law “carried important connotations regarding agency, will, moral authority, intelligence, and belonging. to be unfit for naturalization—that is, to be non-white—implied a certain degeneracy of intellect, morals, self-restraint, and political values; to be suited for citizenship—to be white— suggested moral maturity, self-assurance, personal independence, and political sophistication.”66 restrictions on immigration throughout the country’s history—such as the naturalization act of 1790, the chinese exclusion act of 1882, and the restrictive quotas in the immigration act of 1924— maintained and fortified the image of the united states as a white country by excluding non-white people. their exclusion validated by the legitimacy of the law affixed a particular stigma to them. white people, constituted in contrast, thus understood themselves to be the only ones qualified for the benefits and privileges of full membership to the united states body politic. the operation of the law toward this end being largely hidden, these conclusions appear to be natural. thus, “the notion of a white nation is used to justify arguments for restrictive immigration laws designed to preserve this national identity,”67 and such concerns can be defended as discomfort with immigration rates and not the byproduct of an institutional effort to construct racial definitions and then limit opportunity on that basis. the anxiety around immigration has been strengthened by generations of creating, hardening, and instigating a fear of the “other” as a threat to white exceptionalism and purity. the atlantic journalist adam serwer chronicles the history and context around the xenophobic up-rise that swept the nation and set the ground for the immigration act of 1924.68 though humans are innately attuned to differences, and rapid change can lead to anxiety, these broad value systems built on race are artificial. these “categories of difference” had to be socially constructed. a reason to perceive certain groups as a threat had to be created and ingrained into the collective psyche of the population. serwer begins by addressing the widespread belief among elites of the late nineteenth and early twentieth century that it was their duty to protect the supremacy of the white race. he 66 id. at 11–12. 67 id. at 13. 68 adam serwer, white nationalism’s deep american roots, atlantic (apr. 2019), https://www.theatlantic.com/magazine/archive/2019/04/adamserwer-madison-grant-white-nationalism/583258 [https://perma.cc/2ubjy8h3]. 2021] uprooting authoritarianism 23 tells this story through the work and influence—and the milieu in which it existed—of madison grant. “the preservation of a pure white race, uncontaminated by foreign blood,” serwer writes, “was in fact sown with striking success in the united states,” orchestrated through “a powerful cadre of the american elite, well-connected men who eagerly seized on a false doctrine of ‘race suicide’ during the immigration scare of the early 20th century. they included wealthy patricians, intellectuals, lawmakers, even several presidents. perhaps the most important among them was blue blood . . . madison grant,” and his book the passing of the great race.69 serwer explains how the concept of race suicide preceded today’s use of “white genocide,” evoking a deep fear of a loss of status, control, cultural influence, and numerical majority of white people.70 in explaining the essential role of the aristocratic class in propagating racial fear, he taps into the concept of “hegemony theory,” a set of intractable beliefs common in the elite and general population. serwer identifies this “hegemony theory” as essential to social coercion toward the maintenance of sharp social group boundaries. serwer unearths the history of elites consuming grant’s ideas with alacrity, including presidents theodore roosevelt, warren harding, and calvin coolidge. harding embraced the ideas of a grant acolyte who issued “warnings about the destruction of white society by invading dusky hordes.” harding would go on to orate that between races exists, “a fundamental, eternal, and inescapable difference,” and that “racial amalgamation cannot be.” president coolidge would write that any mixing with “inferior races” would cause a degradation to white people and that the natural laws of racial hierarchy had to dictate immigration law.71 these elites sought to create a broadly held conviction amongst white people that their natural superiority and their political, social, and cultural dominance was being threatened. serwer writes of statistician francis walker who bemoaned “racial inferiors,” “whose offspring were crowding out the fine ‘native’ stock of white people.”72 other elites at the time spoke of “the decay of the american race.”73 serwer also quotes grant from the passing of the great race: “the cross between a white 69 id. 70 id. 71 id. 72 id. 73 daniel okrent, opinion, a century ago, america built another kind of wall, n.y. times (may 3, 2019), https://www.nytimes.com/2019/05/03/opinion/sunday/anti-immigrant-hatred1920s.html [https://perma.cc/c5c3-xanf]. 24 colum. j. race & l. [vol. 11:1 man and an indian is an indian; the cross between a white man and a negro is a negro, the cross between a white man and a hindu is a hindu; and the cross between any of the three european races and a jew is a jew.” serwer makes clear that during this time of heightened attention to the national ethnic makeup, public intellectuals and thought-leaders were actively working to create a social preoccupation with the artificial notion of “white purity” which had to be defended.74 by fabricating the concept that a “white race” would erode through contact and contamination by invented “non-white races,” these thinkers biologized race in a way that needed staunch protection by any means necessary and by all who had a stake in unadulterated whiteness. within this notion of “purity” sits an anxiety about biological vulnerability—a fragility that demands zealous attentiveness, which in turn instigates a hysteria among those enlisted to defend it. grant also wrote about immigrants stealing white america’s women on the way to racial extermination for white people.75 revealed here is not only the continued social construction of a reason to fear newcomers as different, but a reliance on the device of invoking assumed entitlements to female subordination, dominance, and ownership—another essential aspect of the conceived identity of the western white male. a. patriarchy and the authoritarian male self female subordination, as peter beinart notes in the atlantic, is a ubiquitous mainstay of consolidating political power and projecting political strength.76 beinart writes that “the right-wing autocrats taking power across the world share one big thing, which often goes unrecognized in the u.s.: they all want to subordinate women.”77 what beinart highlights is a common thread across authoritarians, from trump to duterte to bolsonaro. the only weakness in this theory is that the subjugation of women is even more common than he outlines. as beinart hints, common among “revolutionaries and counterrevolutionaries” alike,78 the oppression of women has been characteristic of many besides autocrats. across a range of regimes and even within certain movements of marginalized 74 serwer, supra note 68. 75 id. 76 peter beinart, the new authoritarians are waging war on women, atlantic (jan.–feb. 2019), https://www.theatlantic.com/magazine/archive/2019/01/authoritarian-sexismtrump-duterte/576382 [https://perma.cc/fwz2-rv4m]. 77 id. 78 id. 2021] uprooting authoritarianism 25 people, a consistent thread has been legitimizing political power, at least partially, through notions of female inferiority and organizing around a patriarchal political structure. this underscores the pervasiveness of constructing the male “self” through the devaluation of women across cultures, and the uniquely potent form of dominance that “othering” takes when it comes to gender. this is the result of the normalization of female subordination in the service of the accumulation of political power. beinart quotes political scientist valerie hudson who instructs that “for most of human history, leaders and their male subjects forged a social contract: ‘men agreed to be ruled by other men in return for all men ruling over women.’ this political hierarchy appeared natural—as natural as adults rearing children—because it mirrored the hierarchy of the home.”79 the normalization of this gender relationship, to the point of it being perceived as the “natural order,” causes any departure from it to stir fear and anxiety among the authoritarian-minded as a disruption to stability. this feeling of disorder is then exploited by authoritarian leaders whose “efforts to denigrate and subordinate women cement—for their supporters—the belief that the nation, having been turned upside down, was being turned right-side up.”80 beinart’s response to the threat of authoritarians exploiting female equality derives from an analysis different from what stenner and haidt propose. beinart recognizes the long-pursued strategy of political opportunists to deepen and instigate fear of gender equality and to present female subordination as a reflection of stability. he thus calls for “normalizing [female] empowerment so autocrats can’t turn women leaders and protesters into symbols of political perversity.”81 in stenner and haidt’s framework that calls for a decontextualized reading of sociopolitical affairs, a move too quickly toward female equality would be understood as faceless change whose rapidity would place an unfair burden on the authoritarian-prone and their anxiety. calls for tradition and a restoration of norms—strong patriarchal households, women relegated to domestic roles—would be preferable to the hard work of creating new norms and building a society where the full 79 id. 80 id. 81 id. 26 colum. j. race & l. [vol. 11:1 humanity of women is recognized, as to not perturb those who cannot tolerate change. b. the evolving boundaries of whiteness returning to the discussion of immigration and xenophobia in the early 20th century, what these voices and influences sowed were the conditions to pass an immigration law as restrictive as the 1924 bill. immense effort went into forming and affirming the notion that the united states was a white country and that “true americans” should fear non-white people. in the lead up to passage of the bill, “republicans and democrats converg[ed] on the idea that america was a white man’s country, and must stay that way.”82 serwer illustrates this sentiment through the voice of grant who announced, “we have closed the doors just in time to prevent our nordic population being overrun by the lower races.”83 the united states constructed its identity as a “white nation,” and stoked fear of that purity being threatened. that this construction was an artificial yet intentional design is illustrated by the supreme court’s effort to establish the boundaries of whiteness. the court, serwer notes, had great difficulty as it strained to come up with a consistent definition of whiteness, made even more challenging by its reliance on baseless race pseudo-science.84 the court repeatedly changed course as it catered its definition of whiteness to white elites’ ideas regarding exclusion from and worthiness of citizenship.85 serwer recounts the supreme court case of bhagat singh thind, an immigrant from india. his claim of “whiteness” was denied by the court on the basis that—although he was hereditarily caucasian—he was not “white” by common understandings of the identity.86 contrast this ruling with another case where the court was tasked with deciding who qualified as white. takao ozawa, a japanese man who petitioned to be categorized as white, was denied by the court because, according to the justices, he could not be technically classified as caucasian.87 these two examples demonstrate ever evolving boundaries of “whiteness,” which are based on exclusion from that group and on what basis that exclusion would occur. the court waffled between rejecting science in favor of established notions of white identity on the 82 serwer, supra note 68. 83 id. 84 id. 85 id. 86 id. 87 lópez, supra note 65. 2021] uprooting authoritarianism 27 one hand and elevating science as the determinant on the other. in its deliberations, the court exposed the supposedly scientific concept of caucasian as actually a social invention—referring to it as being “popularly”, as opposed to “scientifically,” defined.88 all of this conformed to popular sentiments and attitudes about who was deserving of “full humanity,” and recognition as such, by the united states government. the panic to close the doors to the outside world to define and defend whiteness and the fear that reverberated from this position is what motivates fears about immigration. the anxiety emanates from this logic and the resulting actions. in the era of the immigration law of 1924, the united states’ idea of the “supreme white race” consisted only of the “nordic race,” the top of the “three tiered” races of white people as the prevailing understanding at that time dictated.89 whiteness has since changed, but the disposition toward nonwhite people and the message communicated regarding them has not. stenner and haidt fail to appreciate the historical basis behind certain groups triggering anxiety amongst the united states’ population. they bypass this history in an effort to decontextualize how immigration is perceived, labelling it “change” which inherently causes anxiety in populations. by isolating their stance from history, social forces, and an awareness of identity construction, stenner and haidt’s interpretation of “anxiety due to immigration” is misleadingly laundered. in their view, this anxiety is cleansed of its reliance on racial hierarchy and white purity; instead being re-presented as nothing more than a psychological inevitability. on this point, it is worth quoting serwer at length as he dissects this intentional sterilization: but to recognize the homegrown historical antecedents of today’s rhetoric is to call attention to certain disturbing assumptions that have come to define the current immigration debate in america—in particular, that intrinsic human worth is rooted in national origin, and that a certain ethnic group has a legitimate claim to permanent political hegemony in the united 88 id. at 5. 89 serwer, supra note 68. serwer describes the prevailing thinking during the turn from the 19th to 20th centuries when academics who were considered race experts established hierarchical categories within the white race. they were the “brave, beautiful, blond ‘teutons’” (whom grant later changed to nordics), “the stocky ‘alpines’ and the swarthy ‘mediterraneans.’” 28 colum. j. race & l. [vol. 11:1 states. the most benignly intentioned mainstream-media coverage of demographic change in the u.s. has a tendency to portray as justified the fear and anger of white americans who believe their political power is threatened by immigration . . . .90 given serwer’s documentation of president trump and his advisors brandishing the symbols of white nationalism, denouncing muslim immigration as dangerous, and advocating for “scandinavian immigrants over those from latin america or africa,”91 stenner and haidt failed by not considering the obvious social dynamics at work. immigration officials have not hidden their racial motivations or intentions, plainly disproving stenner and haidt’s point that anxiety around immigration is purely driven by the pace of change. “the president’s rhetoric about ‘shithole countries’ and ‘invasion’ by immigrants,” as well as the rise of the “white genocide” term, are directly linked to the fearbased language of “race suicide” that suffused the atmosphere leading to the 1924 immigration bill.92 these racially motivated factors are important to understanding the present situation. stenner and haidt reach the conclusion they do because they analyze from within the united states’ dominant narrative. their perspective proceeds from a position that “erases the extent to which the republic was itself . . . one of settler control over excluded populations,” leading them to implicitly endorse this project as a suitable aim.93 the true impact of othering and white america’s preoccupation with maintaining a hierarchy should not be silenced in favor of artificial, sterilized explanations that portray american society as innocent of racial bias and authoritarian impulses as harmless. this assumption is why anxiety over immigration from latin america remains high even as undocumented immigration is on the decline and immigration from these regions relative to others around the globe is decreasing.94 authoritarian-minded people care less about facts regarding who is coming than about who the perceived threat is. the rate of immigration isn’t inducing fear as much as what justin gest of george mason 90 id. 91 id. 92 id. 93 see infra note 118 and accompanying text. 94 see thomas b. edsall, opinion, who’s afraid of a white minority?, n.y. times (aug. 30, 2018), [hereinafter, edsall, who’s afraid?] https://www.nytimes.com/2018/08/30/opinion/america-white-minoritymajority.html [https://perma.cc/ruc8-e545]. 2021] uprooting authoritarianism 29 university interprets as “a pervasive perception that latinos, africans and asians are simply too different, too far removed from what sam huntington called the ‘american creed.’”95 stenner and haidt get as far as understanding that authoritarian backlash is in response to a disruption of order. it is what constitutes that “order” that they get wrong. the fear is not a mere loss of stability, but a loss of social status and access contingent on a white identity. it is the attack on the pre-existing social order and the arrangement of social groups that is the threat. c. racial prejudice as group positionality this point is incisively captured by herbert blumer’s theory of group positionality. blumer argues that racial prejudice is larger than individual malice or a set of negative feelings toward a different racial group, but rather “exists in a sense of group position.”96 the position of the dominant group in relation to the subordinated group is constructed through collective processes of socialization that solidify the dominant group’s selfimage of superiority. racial prejudice is thus a collective activation of that sense of superiority, “a feeling that the subordinate race is intrinsically different and alien, a feeling of proprietary claim to certain areas of privilege and advantage, and a fear and suspicion that the subordinate race harbors designs on the prerogatives of the dominant race.”97 the instigation of prejudice, therefore, “lies in a felt challenge to this sense of group position. the challenge, one must recognize, may come in many different ways. it may be in the form of an affront to feelings of group superiority; it may be in the form of attempts at familiarity or transgressing the boundary line of group exclusiveness; it may be in the form of encroachment at countless points of proprietary claim.”98 the violation to the claim of whiteness—encompassing notions of citizenship, deservingness, and all of its attendant privileges—is the threat behind the reactionary backlash, as opposed to the introduction of instability. upon articulation of this theory, blumer asserts that “the scheme, so popular today, which would trace race prejudice to a 95 id. justin gest of george mason university provides this quotation for an article in which edsall distills the opinions from several scholars on the topic of united states demographic trends, the potential loss of majority status for white people, and the social implications of such a shift. 96 blumer, supra note 54. 97 id. 98 id. 30 colum. j. race & l. [vol. 11:1 so-called authoritarian personality shows a grievous misunderstanding of the simple essentials of the collective process that leads to a sense of group position.”99 stenner and haidt go a step beyond this misunderstanding, and completely excuse authoritarian-leaning personalities of harboring any racial prejudice. this absolution is the product of a social environment where explicit racism is condemned but whiteness must maintain a sense of purity and positional superiority. in order to preserve both, manifestations of racism (especially of the variety that cannot be traced to raw hate or the interpersonal) will not be uprooted but re-inscribed outside of popular definitions of racism. stenner and haidt reach the conclusions they do because, being members of the dominant group, they fall under the influence of the “processes of [group] definition.” through the “complex interaction and communication between the members of the dominant group,” through the “leaders, prestige bearers, officials, group agents, dominant individuals and ordinary laymen present[ing] to one another characterizations of the subordinate group. through talks, tales, stories, gossip, anecdotes, messages, pronouncements, news accounts, orations, sermons, preachments, and the like definitions,” the white in-group takes form.100 to construct white identity, outsiders must be first constituted and then barred from membership, thus creating an image of whiteness as worthy of exaltation and entitlement. although this process requires the subordination of an “other,” it is interpreted as innocuous—its insidiousness is overlooked. this “self-making” is rarely conscious by the members of the group. through complex interactions, shared stories, common definitions and the like, the in-group agrees no offense has been committed against others; the collective goodness of their group being self-evident. stenner and haidt have the sympathies they do because “to the extent they recognize or feel themselves as belonging to that group they will automatically come under the influence of the sense of position held by that group.”101 to stenner and haidt, the authoritarian’s desire to exclude is, to some degree, sensible. they wouldn’t have their own in-group without it. these are the contours and injurious solipsism of whiteness. 99 id. 100 id. 101 id. 2021] uprooting authoritarianism 31 d. the whiteness paradigm and its impact on immigration policy what stenner and haidt draw from their examination of immigration is that incorporating the concerns of authoritarians will lead to better immigration policy. they argue: there are surely types and degrees of affinity between host and newcomers, rates of entry, and methods of supporting their assimilation and inclusion that facilitate successful integration into the community. frank consideration of these matters is the key to broad acceptance of immigration policy and vital to the continued health of our liberal democracies.102 however, any immigration policy resulting from this decontextualized process will produce outcomes, though considered well-grounded and sound policy, that “just happen” to exclude people from latin america and the middle east because they are “harder” to assimilate. in short, their customs are just “too different” from the norm of whiteness. the solutions engendered by this decontextualized framework are exemplified in journalist david frum’s analysis of us immigration policy. frum argues that immigration is not going anywhere so it is necessary to understand the pros and cons of it to be able to regulate it appropriately and ensure the “right kind” of immigration occurs. because he accepts as given many of the assumptions that stenner and haidt make, his aversion to large-scale immigration comes from its potential social disruptions, particularly the threat it poses to stable democracy.103 he comments that the political left was once more closely aligned to what he considers reasonable by quoting hillary clinton as saying, “i think europe needs to get a handle on migration, because that is what lit the flame . . . . [i]t is fair to say europe has done its part . . . if we don’t deal with the migration issue, it will continue to roil the body politic.”104 he reiterates this point by warning that “too much, or the wrong 102 stenner & haidt, supra note 8, at 214. 103 david frum, if liberals won’t enforce borders, fascists will, atlantic (apr. 2019), https://www.theatlantic.com/magazine/archive/2019/04/david-frum-how-muchimmigration-is-too-much/583252 [https://perma.cc/ae2s-bu2z]. 104 id. 32 colum. j. race & l. [vol. 11:1 kind [of immigration], and you … possibly upend your democracy.”105 this stance takes for granted the exclusionary foundation of western society. a body politic built on excluding, pillaging, and expropriating the globe, then denying access to those confiscated resources and the society enriched and given form by that extraction. what “lit the flame” is an objection to losing the right to exclude, the “roiling” of the body politic stems from the tight regimentation of who constitutes the “we.” clinton’s and frum’s positions are that a society of belonging across ethnicities, races, and places of origin is prohibitively costly—or more simply—that they find such a society unimaginable having never questioned the merits of western world-making. the question is never asked—what mechanisms or processes would cause the “upending of democracy”? throughout our nation’s history, white people have shown a willingness to undermine democracy and reject and dismantle institutions of social stability rather than lose their sense of status atop the racial hierarchy.106 this reaction playing out, and not immigrants themselves, is what puts democracy at risk. frum reveals how firmly he is situated within the ideological framework of western liberalism107 when he describes the current global migratory patterns as an “exit from the less successful countries of the global south into the more successful countries of the global north.”108 frum has chosen to construct his worldview devoid of historical context, making the inequality between the global south and north appear just a matter of “success.” it is merely one set of nations outcompeting 105 id. 106 see nikole hannah-jones, the resegregation of jefferson county, n.y. times mag. (sept. 6, 2017), https://www.nytimes.com/2017/09/06/magazine/the-resegregation-of-jeffersoncounty.html [https://perma.cc/9xbg-z6vr] (recounting that in 1956 along with other southern states, alabama decided to shut down public schools completely rather than integrate). see also ian haney lópez, dog whistle politics: how coded racial appeals have reinvented racism and wrecked the middle class 166–68 (2015) (writing of white people rejecting new deal and great society era policies even as these programs reduced inequality, in part because politicians instigated white resentment about the social gains of people of color); jonathan m. metzl, dying of whiteness, bos. rev. (june 27, 2019), http://bostonreview.net/race/jonathan-m-metzl-dying-whiteness [https://perma.cc/tv2n-tbxh] (detailing sacrificing health care expansion, in some instances costing them their lives, to preserve the white racial hierarchy). 107 western liberalism is defined here as the cognitive erasure of persistent hierarchy in the creation of a liberal subject—that subject then being universalized so everyone appears to be an equal. 108 frum, supra note 103 (emphasis added). 2021] uprooting authoritarianism 33 another in an equal playing field of opportunity—fair and square. colonialism is completely absent from his analysis, because in order for the western liberal subject to put together an understanding of the world in which it will exist, the western world’s crimes have to be erased so the subject can understand itself as a pure being ever-marching toward the liberal ideal.109 e. frum’s perspective leaves one with an incomplete and distorted view of the world that does not match reality. this foundational misunderstanding leads to proposals that dramatically miss the mark. for instance, frum advocates that: [as] immigration pressures . . . increase, it becomes more imperative than ever to restore the high value of national citizenship, not to denigrate or disparage others but because for 109 see roxanne dunbar-ortiz, loaded: a disarming history of the second amendment (2018) (ebook). [frum’s selective sampling of history to construct his worldview is evident in his highlighting of president theodore roosevelt as a proponent of equality. he heralds roosevelt as someone whose “insistence on a singular national identity was founded not on any sense of hereditary supremacy, but on his passionately patriotic egalitarianism.” frum, supra note 103. he quotes roosevelt as saying, “the children and children’s children of all of us have to live here in this land together. our children’s children will intermarry, one with another, your children’s children, friends, and mine. they will be the citizens of one country.” id. contrast this with roxanne dunbar-ortiz’s characterization of roosevelt, who she describes as: an early convert to “social darwinism,” leading to the racist pseudo-science of eugenics. in his view, all the darker peoples were inferior, particularly native americans, who were destined to disappear completely. but he also regarded poor white people as inferior . . . . furthermore, he theorized that a new race was born with testing of settlers’ survival skills in nature, creating a new kind of aristocracy destined to rule the world. the settler “stock” that morphed into that superior species was composed of english, scots-irish, french huguenots, german, and dutch, all protestants. . . . roosevelt argued that the superior european was strengthened by not intermarrying with their defeated enemies, which would cause loss of vigor. dunbar-ortiz, supra note 109, at 41. it appears that in the quotation frum cites, roosevelt was not intending that his vision include everyone. it cannot be pretended that the exclusionary vision of the united states prevalent at the time, embodied in roosevelt’s words, has no effect on how we interpret immigration issues today, whose interests and security is centered, and how we understand and define the “immigration problem” and thus how we shape “solutions.” as seen here, frum’s worldview as an outgrowth of a narrow “we” philosophy leads him to attempt to universalize words and sentiments meant only for an exclusive category of people without examining the way that narrow “we” philosophy shaped ways of reasoning, laws, and institutions that are not designed to accommodate everyone. 34 colum. j. race & l. [vol. 11:1 many of your fellow citizens—perhaps less affluent, educated, and successful than you—the claim “i am a u.s. citizen” is the only claim they have to any resources or protection.110 in this passage, frum comes upon a central truth, but one that he does not completely grasp. in place of equal access to resources and capital, in place of adequate wages, and in place of health care and other social safety nets, many people in the united states have been granted in-group membership through national identity. instead of equal access, they have been given an “insignia of belonging” as capital has shifted across borders and as their jobs have been shipped overseas. what is left for them is to fulfill the important social role that keeps the west bound together—what steve martinot refers to as the “middle stratum.”111 author rana dasgupta describes this bolstering of symbolic citizenship as an arbitrary assignment of worthiness to people. this arbitrariness encourages the “productive role” of the “middle stratum”—regenerating the value of in-group membership through their acts of violence and oppression as an expression of ultra-nationalism.112 without challenging the underlying foundations of society’s current structure, proposals will struggle to devise an egalitarian path forward while stretching to accommodate formations that demand hierarchy. as reasons to support more restrictive immigration policy, frum provides a laundry list of issues he believes immigration exacerbates. among these are american citizens moving between states less frequently than the previous generation due to housing costs, the strain on government finances, social security and medicare, the lowering of scores on national educational assessments, workplace safety and exploitation of workers, the delay in mass incarceration and the opioid epidemic garnering national attention, and the white working-class feeling like strangers in their own country.113 frum finds a way to link each of these issues to high rates of immigration. 110 frum, supra note 103. 111 steve martinot, the rule of racialization: class, identity, governance 78 (2003). 112 rana dasgupta, the demise of the nation state, guardian (apr. 5, 2018, 1:00 pm), https://www.theguardian.com/news/2018/apr/05/demise-of-thenation-state-rana-dasgupta [https://perma.cc/fuk9-3utu]. 113 frum, supra note 103. 2021] uprooting authoritarianism 35 frum does not spend any time interrogating other well documented explanations for these problems. he ignores exclusionary zoning and the rise of institutional investor landlords. he ignores the corporate capture of government which severely limits government revenue, affecting the viability public institutions of resources. he ignores the exclusionary and assimilationist ethos of the united states which influences the way schools view and inadequately accommodate english language learners. he ignores the predominating extractive form of capitalism that encourages worker exploitation and the warehousing of people in penal institutions. he ignores the unsustainability of the implicit arrangement to compensate a certain part of the working-class—the “real american” segment—with honorary but tenuous membership in the dominant in-group, even as that value erodes in the face of capitalism’s evermore rapacious demands. his arguments, in this regard, are not so much astute critiques that give reason to oppose immigration as they are reasons to reform american society and institutions. he is not exposing flaws in the way the country handles immigration. he is holding up a mirror—a point he eventually, however reluctantly, comes around to admitting: “it is more true that america’s tendency to plutocracy explains immigration policies than that immigration policies explain the tendency to plutocracy.” f. the price of the ticket: the problem with same-ing stenner and haidt conclude their analysis by calling for “attending to people’s needs for oneness and sameness; for identity, cohesion and belonging,” and for an attentiveness to authoritarians’ “needs and preferences.”114 but what if those needs and preferences are existential threats to certain groups of people? as stenner and haidt pointed out themselves, authoritarian demands will “typically include legal discrimination against minorities, coercion of others,” and demands for the use of group authority (i.e. coercion by the state).115 further, they concede authoritarians display “a willingness to support extremely illiberal measures (such as the forced expulsion of racial or religious groups).”116 in the united states context, this means support for police brutality and unjustified police killings of black people, children ripped from families and caged at the mexican border, and a muslim ban. through this conclusion, the authors reveal that the other side 114 stenner & haidt, supra note 8, at 215. 115 id. at 184. 116 id. at 183. 36 colum. j. race & l. [vol. 11:1 of their overly-sympathetic disposition toward authoritarians is a dismissive and devaluing stance toward people of color and religious minorities. when stenner and haidt call for “belonging,” they are actually advocating for “same-ing,” a softer othering, yet still an erasure of identity that flattens and destroys everything that makes one appear different (everything deemed unacceptable to the social majority). this “same-ing” is advanced as a prerequisite for acceptance without due consideration for what it is demanding. proponents carry a false sense of self-congratulatory virtuousness believing they are extending a welcoming embrace, unaware that their acceptance is conditional upon a cleansing of anything that smacks of difference, anything that would make the “other” recognizable as “the other.” same-ing, in other words, is “the price of the ticket.”117 stenner and haidt’s use the word “belonging” is misleading. when they conflate “belonging” with oneness and sameness, they are speaking of “belonging” as a condition in which marginalized groups assimilate into the dominant group, or “join the club,” no matter the restrictions and demands of conformity that club may place on membership.118 the authors 117 the price of the ticket refers to james baldwin’s sentiment that the cost of admittance into white social circles is to eliminate everything that identifies one as distinguishably non-white. for him, acceptance into white literary spaces meant burying his blackness and queerness. this price that is demanded—the price of the ticket—is in essence a demand for same-ing, or the compulsion of narrow identity. see james baldwin, the price of the ticket: collected nonfiction 1948–1985 (1985). 118 nikhil pal singh, universalizing settler liberty: an interview with aziz rana, jacobin, (aug. 4, 2014), https://www.jacobinmag.com/2014/08/thelegacies-of-settler-empire [https://perma.cc/m48m-6qtt]. also neglected are the unjust foundations of the institutions and structures into which marginalized people are included. this approach of inclusion, as opposed to reckoning and co-creation, has materialized in the folding in of a smattering of people from marginalized identities atop unjust and exploitative systems of human stratification—where equality is defined by a diversity of people operating and benefiting from arrangements that demand and generate value from oppression and subordination. as aziz rana puts it, “the country can have a nonwhite person as president, secretary of state, or chairman of the joint chiefs of staff without any expectation that this individual will challenge the basic parameters of economic and racial hierarchy or of american interventionism abroad.” id. because the united states has “never properly confronted the country’s colonial infrastructure or its imperial legacies” or has pursued a reconciliatory strategy of inclusion into the existing american project for its marginalized and subordinated populations instead of a “conscious moment of colonial accounting” with them, the nation has been allowed to believe that “the application of us power is fundamentally non-imperial,” and that the “projection of american power necessarily means the defense of liberal values,” even as it has suppressed democracy and popular sovereignty, imposed 2021] uprooting authoritarianism 37 also assert that “in the absence of a common identity rooted in race or ethnicity . . . the things that make ‘us’ an ‘us’ —that make us one and the same —are common authority (oneness) and shared values (sameness).”119 they believe that “democracy in general, and tolerance in particular, might actually be better served by an abundance of common and unifying rituals, institutions, and processes,”120—in other words, the practice of systematic same-ing through culture-making and institutionbuilding. that might serve the goal of belongingness, but not unless marginalized peoples have a role in the construction of that culture and those institutions. stenner and haidt’s argument that assimilation is a necessary component of immigration policy betrays their bias. implicit in their analysis is the fact that the authors cannot imagine the existence of a truly multiracial, multicultural democracy with diverse salient identities. they are challenging the project of pluralism itself. g. conservatives and the pace of (racial) change conor friedersdorf provides a clear articulation and defense of stenner’s perspective, mainly in reference to her 2005 book the authoritarian dynamic.121 the main points he underscores from stenner’s work are that status quo conservatives, because they have a predilection for defending tradition and order, are perhaps the strongest hope for defending liberal democracy in the face of rising authoritarianism. he makes this case by quoting stenner’s reasons why conservatives are so dependable in trying times. he lifts up her assertion that “it is no secret that liberal democracy is most secure when individual freedom and diversity are pursued in a relatively orderly fashion,” and that if conservatives are provided “reassurances regarding established brakes on the pace of change, and the settled rules of the game to which all will adhere,” they can be expected to “defend faithfully an established order.”122 but if made to withstand accusations of racism, status quo conservatives can be driven “into unnatural and unnecessary political alliances with the hateful and intolerant.”123 economic systems of extraction, and colonially derived hierarchical valuations of people abroad. id. 119 stenner & haidt, supra note 8, at 185. 120 id. at 211. 121 conor friedersdorf, how conservatives can save america, atlantic (feb. 2, 2017), https://www.theatlantic.com/politics/archive/2017/02/how-conservatives-cansave-america/515262 [https://perma.cc/3egm-aus7]. 122 id. 123 id. 38 colum. j. race & l. [vol. 11:1 however, both stenner and friedersdorf miss that in order to divorce notions of “order” and “change” from race, the extent to which society in the united states is predicated on hierarchical stratification must be obscured. only once the stratification is ignored can immigration from non-white regions of the globe and movements among the marginalized in search of opportunity be described as an aversive rate of change that has nothing to do with race. they call for a reliance on conservatives to “defend faithfully an established order,” but what if the established order is unjustifiable and cannot create the conditions for equality for the marginalized and a fully inclusive and broad “we”? advocating for “diversity [to be] pursued in a relatively orderly fashion,”124 is the equivalent of telling people of color and other marginalized groups that your freedom must wait. it must conform to a restrained manner that will not upset those who find a world that changes to accommodate your freedom to be distressing. there is a direct relationship between liberty and equality. for the group that has built its identity upon being the top rung of a hierarchy, embedded in their liberty is the right to dominate others, and for those others, equality presents the pathway to liberty. an unencumbered move toward equality then becomes an affront to “liberty” for people whose identity is constituted by whiteness as a super-ordinated position. what is lacking in this analysis is even a notion of concern for the trauma, hardship, and struggle that people of color and marginalized communities face. instead, that trauma is dismissed to focus exclusively on how members of the dominant in-group feel about the pace of change—change that is rooting out their “right to dominate.” is it not the height of ingroup (white) entitlement to believe that someone else’s freedom or full humanity is a pace of change in need of regulation? such a position recalls the reverend dr. martin luther king, jr.’s statement on the white moderate who is “more devoted to order than to justice,” and “who paternalistically believes he can set a timetable for another man’s freedom.”125 stenner—and friedersdorf in his support—has not interrogated sufficiently exactly what her words advocate. 124 id. 125 letter from birmingham jail, martin luther king, jr. (apr. 16, 1963) (on file with the columbia journal of race and law), http://okra.stanford.edu/transcription/document_images/undecided/630416019.pdf [https://perma.cc/5ejf-u8k3]. 2021] uprooting authoritarianism 39 ibram kendi grapples with these implications when he asks, “am i an american?”126 kendi, through a tour of history, demonstrates how marginalized groups and black people in particular have been told to put their freedom on hold out of concern for the white in-group’s sense of comfort. he writes of the popular opinion in the antebellum period that “slavery be diminished in a way so gradual as to prepare the whites for the happy and progressive change.” he explains how president grant grew “tired of alienating racist americans from the republican party every time he sent federal troops to defend our right to live, vote, thrive, and hold political office.” he reveals that thomas jefferson felt that black people needed not equality but relocation through colonization in order to be civilized.127 kendi’s point is not to show how virulently racist the country was in its past, but to illuminate how similar arguments persist today to continue to deny full humanity to people marked as the other. “the moderate strategized then,” he writes, “as the moderate still does now, based on what was required to soothe white sensibilities.” in the america of slavery, moderates stressed that “immediate emancipation was impractical and impossible in the way that anti-racists are told immediate equality is impractical and impossible today.”128 kendi communicates how the message from stenner, haidt, friedersdorf and others, who plead to put white comfort ahead of equality for all people, is received by those “othered:” “i can dine on american soil until i demand a role in remaking the menu that is killing me . . . . i hear the moderate message of compliance, of assimilation, of being happy just dining.”129 this is the message broadcasting from those calls to accede to the preferences of the authoritarian-prone, or to create the conditions necessary to allow status quo conservatives to deliver us to a stable order. it is conformity garbed in language that severs its relationship from race and the construction of white identity. stenner and haidt defensively fend off any criticism that considers the context of power and racial dynamics, claiming that “it is implausible to maintain that the host community can successfully integrate any kind of newcomer at any rate whatsoever, and it is unreasonable to assert that any other 126 ibram x. kendi, am i an american?, atlantic (jul. 16, 2019), https://www.theatlantic.com/ideas/archive/2019/07/am-i-american/594076 [https://perma.cc/3bqp-xu4u]. 127 id. 128 id. 129 id. 40 colum. j. race & l. [vol. 11:1 suggestion is racist.”130 this position drastically misunderstands the role of whiteness and white racial hierarchy in binding the west, determining identity, and making non-white people seem beyond integration. the authors likely cannot make sense of such a critique in the context of racism narrowly defined as interpersonal racial animus. but, in the context of maintaining white centrality, white normalcy, and the potency of whiteness as a force permeating western and united states society, criticism of their conclusions becomes resonant. in fact, preservation of white normativity is exactly the work the authors do through their argumentation and outsized sympathies for authoritarianism. what needs to be examined is the western ideology from which they write, its relationship to white hegemony, and their own role in reifying the epistemologies that continue to mask its foundations. v. western ideology and the fiction of whiteness understanding stenner and haidt’s conclusions will require an exploration of the construction of western ideology. in sapiens: a brief history of humankind, yuval noah harari argues that the characteristic that sets humans apart from other species is the ability to create collective fictions.131 during the cognitive revolution, when new ways of thinking and communicating rapidly developed, humans adapted a new skill that allowed for mass cooperation: myth-making. while other animals can communicate information about the physical world—a warning of trouble, the location of food—humans can speak about and believe in ideas and concepts that are completely fabricated. the widespread belief in these ideas and the trust that others believe in them, too, allowed humans to form ever larger groups, leading to cities, nations, empires, civilizations, and entire cultures.132 through collective stories, people “have been able to change their behavior quickly, transmitting new behaviors to future generations without the need of genetic or environmental change.”133 human myths propelled the species to its position atop the food chain and to the heights of spectacular achievement. among these myths, harari includes money, religion, ideology, legal systems, corporations, and nations. he makes 130 stenner & haidt, supra note 8, at 214 131 yuval noah harari, sapiens: a brief history of humankind, 32 (2015) (ebook). 132 id. 133 id. at 33–34. 2021] uprooting authoritarianism 41 certain to point out that these myths are not lies. the nation state, for example, is “an imagined reality . . . that everyone believes in, and as long as this communal belief persists, the imagined reality exerts force in the world.”134 these fictions are the basis for mass social connection and the behaviors, norms, and values that derive from them form culture.135 harari calls these grand myths by which humans live, “imagined orders.” once an imagined order is established, great effort must be undertaken to maintain its stability. through indoctrination, coercion at times, and its appearance in the physical world, the imagined order is embedded into our thinking and incorporated into our lives so deeply that it is assumed to be natural and presocial.136 harari also notes that “an imagined order can be maintained only if large segments of the populations—in particular large segments of the elite and the security forces— truly believe in it,”137 or in other words, if it takes on a hegemonic nature.138 for most people, race is primarily understood narrowly as skin color and not that “laws and customs helped to create ‘races’ out of a broad range of human traits.”139 many forget or do not realize that whiteness is just another fiction. it only exists in the collective minds of humans for the purpose of legitimizing the imagined order of western ideology. the western notion of the self is borne out of the enlightenment tradition by thinkers such as kant, descartes, and locke.140 these philosophers imagined a self that was onedimensional and capable of reasoning separate and apart from any social experience—a fixed, unfragmented, and unitary self, excluding any possibility of a self with multiple identities. in fact, this self is not set apart, above, or before social experience, but devised and constructed by societal influence. the self reflects— not determines—social values, preferences, and practices. indicative of its conception as a construct of european society, despite its claims on universality, this “self” did not intend to include non-white people and their ways of life.141 as powell notes, “by construing the essence of the human self as individual 134 id. at 32. 135 id. at 37. 136 id. at 112. 137 id. 138 crenshaw, supra note 49. 139 id. at 113. 140 john a. powell & stephen m. menendian, remaking law: moving beyond enlightenment jurisprudence, 54 st. louis l.j. 1035 (2009). 141 powell, racing to justice, supra note 27. 42 colum. j. race & l. [vol. 11:1 and autonomous, european thinkers deliberately excluded from selfhood members of non-white societies that were organized around non-individualistic norms.”142 furthermore, this individualistic self borrows ideas of dominion—an ordained entitlement to rule over the earth and “lesser” forms of life—from the religious traditions of western society. for instance, “hobbes’s state of nature is a secularized version of calvin’s ‘natural man’ without god,” and “john locke’s theory of individual rights is rooted in a protestant understanding of man’s relationship with god.”143 this “adherence of modernists to christian beliefs justified the conquest and subjugation of non-christian (that is, non-white) [peoples].”144 as dubois reveals through his study of whiteness, central to white identity is the claim by whiteness to the “title of the universe,”145 motivated by the belief that the universal self (white male) was created in god’s image. as harari points out, “the idea of equality is inextricably intertwined with the idea of creation. the americans got the idea of equality from christianity.”146 since non-white people were constituted outside of notions of the western self, equality was reserved for white people, and people of color were part of the lesser world subject to the west’s domination. because whiteness is constituted in opposition to other explicitly racialized identities—deriving its value, virtuousness, and esteem from standing apart from degradation and debasement—it required anti-blackness to take form. as crenshaw states, throughout american history, the subordination of blacks was rationalized by a series of 142 id. at 169. 143 id. at 217. 144 id. at 169. 145 ella myers, beyond the wages of whiteness: dubois and the irrationality of anti-black racism, soc. sci. rsch. council: items (mar. 21, 2017), https://items.ssrc.org/reading-racial-conflict/beyond-the-wages-ofwhiteness-du-bois-on-the-irrationality-of-antiblack-racism [https://perma.cc/b3wc-yg2y]. myers discusses dubois’s conceptualization of whiteness in darkwater and quotes his pondering of what constitutes whiteness: “i ask soberly: ‘but what on earth is whiteness that one should so desire it?’ then always, somehow, someway, i am given to understand that whiteness is the ownership of the earth, forever and ever, amen!” she then goes on to elucidate dubois’s point even further, stating that “whiteness entails ‘passionate’ belief in one’s right to everything and anything. the ‘title to the universe claimed by white folk’ is an ‘extraordinary dictum,’ which lies at the heart of white identity.” 146 harari, supra note 131, at 109. 2021] uprooting authoritarianism 43 stereotypes and beliefs that made their condition appear logical and natural. . . . today, it is probably not controversial to say that these stereotypes were developed primarily to rationalize the oppression of blacks. what is overlooked, however, is the extent to which these stereotypes serve a hegemonic function by perpetuating a mythology about both blacks and whites even today, reinforcing an illusion of a white community that cuts across ethnic, gender, and class lines. . . . racism helps to create an illusion of unity through the oppositional force of a symbolic ‘other.’ the establishment of an other creates a bond, a burgeoning common identity of all non-stigmatized parties—whose identity and interests are defined in opposition to the other. . . . [a] structure of polarized categories is characteristic of western thought.147 central to the conceptualization of the western self was not only the exclusion but the degradation of non-white people. this animating necessity of the white identity fuels beliefs around who belongs and who does not—who can belong and who cannot—as long as whiteness and current configurations of the western self rule the day. compounding the damage is that, in order to have an appearance of validity, the claim of universality necessitates the cloaking of this exclusion and degradation in today’s world. at least in theory, if not in action, racial hierarchy is frowned upon, equality is extended to everyone, and the universal self is meant to apply to all people, not just white men. a. objective reasoning or a biased worldview? the assertion that the ability to reason resides with an a priori self that precedes society is also fundamental to the process of myth making—the insistence “that the order sustaining society is an objective reality created by the great gods or by the laws of nature.”148 as reason was conceived as the ability to know and interpret pre-social and empirical aspects of the world and of being, it serves as the basis on which enlightenment thinkers believed they discovered and came to realize the essence of the universal unitary self. however, as is evident from harari’s insights, what were thought to be universal conclusions from an a priori ability to reason are 147 crenshaw, supra note 49, at 112–13. 148 harari, supra note 131, at 113. 44 colum. j. race & l. [vol. 11:1 actually constructs heavily informed by christianity and european society. neglecting this insight, western thinking claims—as the interaction between reason as a concept and the construction of whiteness is relegated to the background—that all persons through the process of reasoning would naturally reach the same conclusions. this move, by definition, excludes from full personhood anyone with differing conclusions. understanding this interaction reveals that reason, though thought to be a priori and its conclusions universal, is in reality highly dependent on positionality. stenner and haidt reach their conclusions because they operate within the boundaries of the “whiteness-privileging western imagined order.” they fail to see how significantly white societal primacy influences their thinking. the authors conclude that authoritarian concerns should be attended to. they believe that this conclusion was reached through careful objective “reasoning.” they are blind to the fact that their “reasoning” is positional and shaped by their socialization in a society that ignores its own racially exclusive foundation. they see nothing wrong with asserting that the dominant culture has the right to demand assimilation and that authoritarian fears of immigrants are valid. they cannot conceive of how their reasoning is colored by race. this is the same logic that motivates the sentiment that ashley jardina of duke university touches upon in her description that many white people are not motivated by racial animus, but: “that the rug is being pulled out from under them—that the benefits they have enjoyed because of their race, their groups’ advantages, and their status atop the racial hierarchy are all in jeopardy. . . . [w]hite identity is not synonymous with racial prejudice. white racial solidarity provides a lens through which whites interpret the political and social world that is inward looking. . . . put bluntly, the politics of white identity is marked by an insidious illusion, one in which whites claim their group experiences discrimination in an effort to reinforce and maintain a system of racial inequality where whites are the dominant group with the lion’s share of power and privileges.” because for many whites “identifying with their group and protecting its status hardly seems problematic, especially compared to racism,” it’s difficult to 2021] uprooting authoritarianism 45 “convince some whites that there’s something normatively objectionable about identifying with one’s racial group and wanting to protect its interests.”149 just as stenner and haidt are flabbergasted that anyone could interpret their conclusions as racist, the white identity politics that jardina describes interprets itself as benign. perhaps describing these perspectives as racism and bigotry seem too strong. however, it is important to convey the entanglement of safeguarding social benefits for white people with an ideology that declares white people superior to others. this ideology that is a close cousin of racism—and, in fact, relies on racism for its birth as a dominant ideology—is just as harmful to people of color. stenner, haidt, and others who are fully enveloped by this imagined order may not like the accusation of racism, but are unwittingly toiling in an ethos that wields the same weapons and inflicts the same injuries. also going unnoticed is the act of mythmaking in which stenner and haidt are partaking. by defending authoritarian fears, taking the reasoning on which their conclusions are based for granted as natural and universal, and flatly denying that race could ever have had an impact on their thinking (thus rendering its work invisible), the authors are participating in a bit of maintenance work on the imagined order from which they operate. vi. a society and political economy shaped by an exclusionary “we” a. the social death harari notes that in the many revolutions that changed the course of humanity, there were central transitions in behavior and ways of thinking that powered these new directions. the scientific revolution was marked by an admission of ignorance which allowed people to seek new knowledge and solutions to existing problems. this change in thinking led to a belief that the future would be better than the present, paving the way for the concept of credit and the modern 149 thomas b. edsall, opinion, white identity politics aren’t going anywhere, n. y. times (dec. 20, 2018) [hereinafter edsall, white identity] (quoting ashley jardina, white identity politics 267–68 (2019)), https://www.nytimes.com/2018/12/20/opinion/trump-race-immigrationdemocrats.html [https://perma.cc/6xrr-m37p]. 46 colum. j. race & l. [vol. 11:1 economy.150 the cognitive revolution’s essential lesson is that humans are capable of creating and believing grand myths that allow for widespread cooperation.151 while slavery in the united states was not a new innovation—as the practice of enslaving people had been in existence for millennia—nor was it transformative to the point of marking a revolution in human history, it did have an impact on modern society (from the era of slavery on through the present) similar to the transition in behaving and thinking that marks epochal revolutions. slavery showed people of the modern era that their myth-making abilities can be used to conceptually kill others—to exact upon them a social death.152 this process involves the stripping of full person status and the induction into a subordinated and subservient hierarchy meant to enable a full range of life for those still recognized as whole and respected selves. once socially dead, these people could be exploited and extracted for all they were worth without harm, consequence, or guilt. it should be noted, as cedric robinson and other theorists of the black radical tradition point out, the social death concept takes the perspective of state structures, institutions, and the powerful that are served by them.153 from the perspective of the people rendered “socially dead,” their resistance, especially in a collective form, testifies to their persistent social existence.154 but in terms of how they are regarded and offered for expropriation by the political economy, their social status was made one of insignificance. once this discovery was made, it not only justified but completely erased the exploitation, death, and destruction of the industrial revolution, capitalism, and globalization. saskia sassen refers to this process as expulsion.155 b. globalization and the nation-state this ability to incorporate social death of the victims of existing systems and institutions underpins the neoliberal ideology guiding united states domestic and foreign policy today. the global economic integration promoted and extended across 150 see harari, supra note 131, at 212–84 (discussing the consequences of the scientific revolution in chapters 14–16). 151 harari, supra note 131, at 20–35. 152 orlando patterson, slavery and social death 35 (1982). 153 h.l.t. quan, it’s hard to stop rebels that time travel: democratic living and the radical reimagining of old worlds, in futures of black radicalism, 176 (theresa johnson gaye & alex lubin eds., 2017) (ebook). 154 id. 155 saskia sassen, expulsions: brutality and complexity in the global economy 10 (2014). 2021] uprooting authoritarianism 47 the planet by the united states has reached its level of domination by exploiting the convenience of socially dead peoples and extracting advantages granted by the lasting impacts of colonialism. as toni morrison defines the term in the origin of others, globalization is “the free movement of capital and the rapid distribution of data and products operating within a politically neutral environment shaped by multinational corporate demands. . . . [b]ut [it is] also the collapse of nation states under the weight of transnational economics, capital, and labor,” as well as “the preeminence of western culture and economy.”156 this economic structure has achieved the prodigiousness and vast control that it has because it has compelled nations and their mechanisms for governance and restraint to bend to it. instead of corralling it, national governments have been sufficiently captured to the point of serving it. in this environment, there is nothing protecting people from the abuses and exploitation of the excessive greed of unchecked global capitalism. as rana dasgupta puts it, “20th century political structures are drowning in a 21st century ocean of deregulated finance [and] autonomous technology.”157 while “financial elites—and their wealth—increasingly escape national allegiances altogether,”158 while corporations turn their backs on their “home-nations,” refusing to contribute to the social systems of those countries, and while borders essentially become meaningless for the global elite, the dislocated and expelled face continually steeper barriers. they are fleeing poverty, the vicissitudes of climate change, and unrest—much of which has been induced by globalism. many of these challenges to free movement across borders for people (while capital, technology, and the wealthy move uninhibited) are due to last gasp efforts by formerly effective nations trying to cultivate a sense of power. dasgupta explains that, “political authority is running on empty, and leaders are unable to deliver meaningful material change. instead they must arouse and deploy powerful feelings: hatred of foreigners and internal enemies, for instance, or the euphoria of meaningless military exploits.”159 strong borders play this important role for a decaying national assertiveness, but so too do they serve an essential purpose for the global business elite. above the advantages restricting the movement of labor creates, strong borders provide a much more subtle, fundamental, and 156 toni morrison, the origin of others 96–97 (2017). 157 dasgupta, supra note 112. 158 id. 159 id. 48 colum. j. race & l. [vol. 11:1 pernicious necessity toward maintaining stability of the global economic structure. a re-examination of the process of racialization in the united states will help to better understand this point. c. the violent process of white racialization in 18th century colonial virginia, the ruling class needed a mechanism to protect the slave economy. it needed something to prevent african slaves and poor laboring europeans from rebelling against an unjust economic system. in response to a series of uprisings in the late 1600s, most notably the bacon rebellion of 1676, by the early 1700s, that mechanism was advanced in earnest and institutionalized in the form of slave patrols. scholar activist steve martinot states that “the patrols brought white people together from a variety of classes . . . . their main task was to guard against runaways and autonomous organization among the black working class (as slaves).”160 in other words, the slave patrols’ main purpose was to foster a sense of unity among white people and deny any semblance of equality to or community with white people for black people. through the unifying ritual of conducting these patrols, what martinot refers to as a “middle stratum” was constructed.161 it served an intermediary purpose as a source of control, both forfeiting itself to the control of the elites and acting as a control mechanism of the enslaved class. but, it also, as martinot argues, acted as “social unity reconfiguring a sense of allegiance,” becoming “the predominant moment in white self-racialization through the racialization of the africans.”162 in this telling, as is established above in the re-analysis of the concept of hegemony, white identity itself takes form with the creation of a permanent subordinated “other.” citing theodore allen’s invention of the white race, martinot explains that the creation of race—of an identity based upon race—for the dominant white group required “that the group to be dominated be given undifferentiated status, that is, generalized and inferiorized,” and also “that the dominated group is accused of lacking something, which specifies its inferiority,”163 recalling blumer’s definition of racial prejudice.164 the act of policing and patrolling black people was justified by the instigation of a deep fear associated with 160 martinot, supra note 111. 161 id. 162 id. at 70. 163 id. at 68. 164 blumer, supra note 54. 2021] uprooting authoritarianism 49 blackness. as martinot puts it, “the concrete social separation of the english and african bond-laborers depended on the generation of a massive social paranoia.”165 the deep-seated nature of this paranoia was necessary to make it seem to white people that any resistance to oppression on the part of black people is a threat so severe that it renders any violence inflicted upon black people not only reasonable, but valiant and commendable. martinot writes: the possibility and appropriateness of rebellion by the oppressed and the rationales (and valorization) of preemptive suppression by the english are the two sides of this question. if one side is the recognition of the reality of uprising against oppression, the other entails imagining a forbidden rebellion against which all countermeasures are appropriate a priori. the notion of paranoia substitutes the demonic for what would have been supported in terms of social justice (or class interests), within an alternate paradigm of solidarity (english). it is from within the convoluted thinking of this structure that race and white supremacy evolve.166 in other words, paranoia serves to erase the evil of white violence and in its place imbue it with notions of honor and righteousness, or even an innocuous and unremarkable way of life, while also demanding conformity to a narrow white identity and allegiance. this erasure is what jardina refers to when she reports that white people do not interpret guarding unearned white advantage as problematic, and it is what activates the racial prejudice—read by white people as anything but prejudice—that blumer elucidates in his theory of “group positionality.” present calls for border security closely mirror the rationales and objectives of the colonial virginia slave patrols. in a period where the wages of whiteness are eroding, to distract from this fact, the strengthening of white identity and the bond of the white group is attempted through the inflammation of border tension. as whiteness as race was constructed through the slave patrols, white identity is being regenerated through fury at the mexican border and in reactions to muslim immigrants. paranoia is being stoked through descriptions of 165 martinot, supra note 111, at 64. 166 id. at 65. 50 colum. j. race & l. [vol. 11:1 migrants as national security threats and through president trump’s national emergency declaration to build a border wall. this paranoia then justifies and triggers intense violence at the border and against immigrants of color, which is read through the lens of whiteness as merely a defense of the national fabric. in reference to the slave patrols, martinot writes that “terrorism toward africans and african americans signified that racism relies on a process of paramilitary activity.”167 the border patrol is the present-day slave patrol: using paramilitary force and executing acts of terror, they reinforce the inferiority and the need to control those deemed as outsiders, inversely fortifying exclusive claims of belonging and the superiority of whiteness. martinot explains that on the one hand, white “potential violence as a control mechanism engendered an ethos of impunity that expressed itself as terror in the face of their operations. on the other, they appeared to the white population as the institution of peace and social tranquility. terror and impunity toward black people constituted the materialization of white solidarity and tranquility, and white consensus in solidarity constituted the product of terror and impunity.”168 while immigrants and other communities of color experience violence and terror as the result of white identity constructing itself, those who believe themselves to be white find in this violence and terror a peace and tranquility—as it, for them, nurtures a sense of self and a welcoming in-group. furthermore, as martinot points out, “the violent abuses of slaves that quickly came to characterize the operation of these patrols provided the poor white people with a way of discharging frustration and anger at the elite.”169 as dissatisfaction heightens as the result of present-day economic exploitation, those grievances and resentments are displaced— transferred upon those who have been othered for the purpose of white self-assertion. the danger of acquiescing to authoritarianminded desires lies in this revelation. it is not simply complexity or disorder that they fear, but a loss of identity (as built around whiteness). the people whose hysteria is activated by the trump administration’s border fear-mongering serve as today’s middle stratum. they call for strong borders that in reality only serve the interests of multinational economic giants; constructing a whiteness which makes space for those grasping most desperately to white identity to lay down in accordance to their 167 id. 168 id. 169 id. 2021] uprooting authoritarianism 51 own domination. just as white identity was not of the same importance to the elite as it was for the poorer white laborers who they needed for economic stability, the paranoia around border security is not a cause of concern for the global elite. they need it to the extent that it will activate the populations that they dominate to demand for the elite the key to the elite’s own economic advantage. multinational corporations and the global business elite need the obsolete national governance structures to remain in place to continue to operate above any system of accountability. toward that end they’ve enlisted the new patrol class to demand strong borders and national identities. d. the western self and capitalism just as colonial slave patrols bear great resemblance to present border control, so too does the universalized western self, in its constitution as an implicitly racialized white self, reflect the contours of the neoliberal free-market-regnant economy of globalization. this connection exists because the western ideology that birthed as well as grew out of the concept of the western self, underpins the construction of capitalism. as delineated in this article’s discussion of the western self, this self relies ontologically on innocence and purity (whiteness), universalism, and egalitarianism, even as it depends on hierarchy, dominion, and the erasure of those who don’t conform to its image. in order to maintain a veneer of egalitarianism, innocence, and purity, the system must conceal its domination and exploitation. university of california, los angeles, economic anthropologist hannah appel shows through a study of transnational oil markets that global markets “do not merely deepen racialized and gendered postcolonial disparities; they are constituted by them.”170 in making a case for this argument, she provides an account of how wage schedules are set for oil company laborers by nation of origin. appel points out that “whereas the value of labor varies radically across the furiouslymaintained border of nations, genders, and races, the price of oil is largely stable across space.”171 multinational oil companies exploit these variations. she details how even when possessing greater skills, workers from the global south are paid significantly lower wages than workers from the west— generally set by a rating system that decides wages based on 170 hannah appel, race makes markets: subcontracting in the transnational oil industry, soc. sci. rsch. council: items (dec. 17, 2018), https://items.ssrc.org/race-capitalism/race-makes-markets-subcontracting-inthe-transnational-oil-industry [https://perma.cc/eys5-6u5b]. 171 id. 52 colum. j. race & l. [vol. 11:1 nationality.172 “firms,” she highlights, “have long argued that wage, schedule, and facility segregation is not a question of racism,” and can convince themselves that this is true because the “idea of the market absolves the firms and the rating systems from charges of discrimination or racism.”173 this faulty logic on which this structure depends leads to her ultimate point that many markets in the global economy do not just deepen racial and gender inequality, but wouldn’t exist without them. an economic system, borne out of a culture whose guiding ideology will erase the pain and suffering of deemed inferiors to maintain its own self-image of innocence and purity, will do the same. and this is exactly what happened in the onset of globalization. writer and organizer nikil saval argues that even while globalization demanded the erosion of organized labor, wage mismatches between rich and poor countries, and the decimation of social safety nets, “the social cost . . . was consistently underestimated by economists”174 and that “local adverse effects . . . [such as sweatshop labor and starving farmers] were increasingly obscured by the staggering gdp numbers.”175 in promoting an exportation to the entire planet of neoliberalism, the west made enormous promises of prosperity, “yet this revolutionary transformation has done almost nothing to close the economic gap between the colonized and the colonizing,”176 because, as appel demonstrates, many of the markets that generate wealth for the west depend on the racial arbitrage from the vestiges of colonialism. the globe is now dealing with a rejection of this order, even as the west is caught off guard by this backlash. this disbelief on the west’s part stems from the conditions its ideological commitments dictate. constituted by whiteness—as the west behaviorally interprets itself—the western world must maintain its material domination even as it denies—for the sake of self-image—its abuses to achieve that status. this mentality obscures the damages it inflicts as it interacts on the world stage, allowing it to achieve a much more benign perception of its impact and a much more optimistic outlook on its promises. as morrison elucidates, with 172 id. 173 id. 174 nikil saval, globalization: the rise and fall of an idea that swept the world, guardian (july 14, 2017, 12:28 am), https://www.theguardian.com/world/2017/jul/14/globalisation-the-rise-and-fallof-an-idea-that-swept-the-world [https://perma.cc/q73m-fsfb]. 175 id. 176 id. 2021] uprooting authoritarianism 53 globalization came “the preeminence of western culture and economy . . . . globalization, hailed with the same vigor as was manifest destiny, has reached a level of majesty in our imagination.”177 on the presumption of cultural superiority, the west felt entitled to demand global surrender and assimilation. to sell globalization, the west pushed a narrative of national self-determination. but following the fall of the soviet union, what national self-determination has meant for the united states as the sole world superpower, as dasgupta illustrates, is international lawlessness.178 much of the economic advantage acquired by the united states was accumulated through the disregard of attempts at international governance— the united states expecting this behavior to be reserved for it alone. even as it acted recklessly on the world stage, the united states—and the west generally—was ideologically restrained from seeing the harm of its actions. dasgupta states that “for many decades, [the west] was content to see large areas of the world suffer . . . ; it cannot complain that those areas [the rest of the world] now display little loyalty to the nation-state idea.”179 but, the west complains because it is in disbelief. western ideology—so entangled in whiteness—cannot conceive of its own culpability for destructive action. such an approach to conduct, unbridled, coupled with the realization that the ideology has the capacity to make people “socially dead” is a dangerous combination. without a new vision for containing this unbound greed and appetite for abuse and exploitation, the current system will continue to extract more from the masses of ground down people finding themselves ever closer to their breaking point. e. understanding neoliberalism and its connection to the western subject and authoritarianism political scientist wendy brown approaches authoritarianism more from an ideological political perspective than a psychological perspective. in her book in the ruins of neoliberalism, she describes the ways in which the deliberate influences on society that set the conditions for neoliberalism to take root would logically lead to the political expressions of the present. she states that it is necessary to understand “the rise of white nationalist authoritarian political formations . . . as contoured by more than three decades of neoliberal assaults on democracy, equality, and society.”180 brown explains that the 177 morrison, supra note 156, at 96–97. 178 dasgupta, supra note 112. 179 id. 180 brown, supra note 38, at 8. 54 colum. j. race & l. [vol. 11:1 neoliberal project required the decimation of critical institutions of human interconnectedness to make room for the omnipotent rule of the market. this dominance of market rule and market ideology, she illustrates, depends on a very specific and narrow definition of liberty. the individual, as conceived by neoliberals, must be unconstrained from any restrictions of intention or design. the market requires the free maneuvering and interacting of individuals bound only by the norms and common understandings developed through none other than generations of free maneuvering and interacting, and the practices, agreements, and arrangements those actions gave way to.181 freedom, then, becomes defined as the ability to do as one pleases within the bounds of, and uninfringed by, anything other than these longstanding practices, agreements, and arrangements. these traditional values become the outer boundary of freedom as individuals forge their paths through the arena of life organized by the invisible hand of the market. this relationship merges traditional values and morals with markets as interconnected forces that provide the platform for organized life. anything that would interfere with this construction, therefore, must be arrested, mitigated, and preferably destroyed. brown demonstrates that for the original neoliberal theorists, this included the social, the political (specifically democracy), and the public.182 the political, she states, “identifies a theater of deliberations, powers, actions, and values where common existence is thought, shaped, and governed.”183 the people that make up the theater of the political are a community that must decide collectively the norms and rules by which they will live, which means that the political power that this community generates in order to rule itself will have a “distinct rationality” reflective of the comprising members and the unique ethos that they co-create.184 it follows that this would also require political equality among people in order for them to collectively decide their fate. that facilitating the realization of “a people capable of engaging in modest self-rule” requires that these people be recognized, navigate society, and interact as equals.185 democratic rule, in other words, needs a great deal of effort committed to minimizing or eradicating “social or economic inequalities” to prevent the loss of political will to exploitative 181 id. 182 id. 183 id. at 56. 184 id. 185 id. at 27. 2021] uprooting authoritarianism 55 relationships or the concentration of power—a role brown, in citing sheldon wolin, situates with the state, or the public. true democracy in this sense “requires a robust cultivation of society as the place where we experience a linked fate across our differences and separateness,” the definition of belonging.186 the progenitors of neoliberal thought believed that life should be organized by the mechanisms of the market. this theory was shaped around enlightenment philosophy’s concept of the western self and enacting this vision, as brown argues, required the dismantling of the spheres of society, democracy, and political equality. by this what is meant is that the western self, as has been detailed above, is constructed as a being atop a hierarchy that subordinates the majority of humanity, all other forms of life, and nature to it. its full personhood is fulfilled by the rest of life’s subservience to it. because western society is patriarchal and the concept of race serves the purpose of creating the notion of white supremacy, the western self and the white male are conceptualized without distance between the two constructs. this self being the only one worth theorizing the arena of life for, the institutions designed to support that life accommodate only it as a full person. everyone else has a stratified order within these institutions to serve this self’s interests. the institution of particular concern here is the economy. the functionality of the system depends on inequality. this is why democracy and the social sphere are such a danger to the neoliberal order. through this lens, it is apparent that the stratification of humanity serves both the market system and the western subject’s perception of its own identity. this is why liberty as defined by the freedom to dominate and subordinate becomes so essential—and why equality becomes such a threat (for equality vacates the substance of the western subject’s identity). since the public sphere, the function of the state, and the theater of the political should in theory contribute to realizing and securing political equality for all toward the facilitation of democratic selfrule, these domains must be restrained and undermined to maintain the stage upon which the western subject expects to carry out its existence and build an understanding of itself. the social and the political are undermined by three forces as identified by brown: the denial of society, natural order, and traditional values.187 she writes that “if there is no such 186 id. 187 id. 56 colum. j. race & l. [vol. 11:1 thing as society, but only individuals and families oriented by markets and morals, then there is no such thing as social power generating hierarchies, exclusion, and violence, let alone subjectivity at the sites of class, gender, or race.”188 instead, traditional norms and the internal logic of market interactions organize life. brown contends that for hayek, freedom arises from “the un-coerced capacity for endeavor and experimentation within codes of conduct generated by tradition and enshrined in just law, markets, and morality.”189 both traditions and markets, for hayek, develop organically out of this process of freedom left to be. “traditions that develop the best possible ways of living together,” brown writes, “emerge not from the sheer authority of the past, but from the experimentation and evolution that freedom permits,”190 and similarly, “markets and morals, equally important to a thriving civilization, are rooted in a common ontology of spontaneously evolved orders borne by tradition.”191 markets, morals, traditions, as hayek understands them, do not emerge from any intentional or deliberate effort or from rational design. they instead are the product of freedom at work. over time, through the interaction of “free” beings, norms will develop and out of this will emanate the spontaneously organized natural order of the free market. any laws decided upon and enacted by a democratic society or any attempt to increase fairness by altering the structure of society or redistributing wealth and resources is an unsupportable interference in the market. the market, along with traditional norms, are the only legitimate sources for governing life. hayek’s “conventions and customs of human intercourse,” then, must be extended “in order to constitute a crucial bulwark against the wrong-headed designs of social justice . . . and the despotism of an overreaching state that those designs inevitably yield.”192 this relationship between the western self and the institution of the market reveals the root of neoliberalism. it seeks most to protect a version of the “self” constructed through the subordination of others and an economic system that depends, for productivity, on the stratification of human value produced by said subordination. equality not only threatens the western self but also threatens the structure of the economy. freedom means the right to constitute oneself in contrast to those one dominates as well as to exploit their stratified value for 188 id. at 40. 189 id. at 97. 190 id. at 99. 191 id. at 96. 192 id. 2021] uprooting authoritarianism 57 economic gain. as hannah appel’s analysis makes clear, it is not merely that markets exacerbate racial inequality; markets are made—or come to be—from racial disparity, from race itself more accurately, as it stratifies people’s assigned value based on their racialization and creates arbitrage opportunities domestically and globally through the legacies of colonialism. the relationship, therefore, goes beyond brown’s contention that “white and male super-ordination are easily tucked into the neoliberal markets-and-morals project,” or that neoliberal theorist james buchanan was able to “alloy his brand of free enterprise with the project of white supremacism.”193 the connection is so deeply intertwined because white and male super-ordination and the market structure are ontologically based on the same hierarchy of human stratification. hayek’s perception that “markets and morals . . . are . . . borne by tradition” rings true if one understands tradition as reinforcing both self-making and economic objectives.194 traditional norms thus reveal themselves as common practices, agreements, and arrangements forged over time out of and to serve patriarchal white racial hierarchy. as brown states it, the traditions that neoliberals seek to fortify are constituted by “heteropatriarchal norms and family forms; racial norms and enclaves; property ownership and wealth accumulation, retention, and transmission—in short, all that reproduces and legitimates historical powers and ordinances of class, kinship, race, and gender.”195 the part that does not hold up to scrutiny is hayek’s claim of spontaneity. the above analysis that identifies western ideology’s egalitarian strain as serving mostly the western subject’s purity-needs and self-image as a fair and selfsufficiently industrious being helps bring clarity to neoliberalism’s denial of society and theorization of spontaneity. the social must disappear so that unjust distributions of power go unseen. equality becomes defined narrowly as only formal equality to mask structural differentiation of human value. power is understood as coercion to submit to equality demands and liberty as freedom from coercion so as to protect the western subject’s placement at the top of the human hierarchy. this formulation fixes stratified relationality in place as it creates the perception that all people are equally situated in a market system free of exploitation. this is the work that is done by 193 id. at 13, 62. 194 id. at 96. 195 id. at 106. 58 colum. j. race & l. [vol. 11:1 universalizing the western self to everyone while neglecting the reality that not everyone fits this mold (because their position is to be in service to it). neoliberal philosophy calls for this universalism. the existence of stratified levels of human value that the economic system demands and deepens, however, dictate that there can be no universal among the people within the system. the perceived universality therefore has to be imposed, which means that those in subordinated positions have to know and accept their place (and only in doing so are they considered to possess rationality). in this way, the functionality of the economy as theorized by neoliberals requires what dr. king referred to as a negative peace.196 instead of the presence of justice where all people are substantively equal, the stratification on which the market relies necessitates a tensionless acquiescence to subordination. spontaneity, however, is doing more work than this. the relationship between these traditions of heteropatriarchal white racial hierarchy and the market reveal that a belief in the spontaneous ordering of the market—by organically originating traditional norms—is a belief that white supremacy is the stable and natural state of the world. that the web of relationships observed in life are not only acceptable but unalterable. that there is nothing to fix—but even if there were, we should not attempt it. the state of human order is a natural order. it is settled. it is thus made clear that the erasure of hierarchy is more than a necessity of an enhanced self-image. it is productive in the sense that it provides structure and generative capacity for the market system. this is why the social cannot exist—so that social hierarchies can be conflated with nature, leaving nothing to correct. everyone is at once an equal as well as in their place. this is the productive work of the ideology—the cognitive pushing in both directions to make both of these claims true at the same time forces this contradiction into reality as logical consonance. it is generative of the worldview that births the market structure. this project, though, is clearly one of mystification and de-contextualization. the belief in spontaneity is the result of ahistoricism. to believe that traditional norms arose organically merely from innocuous human interaction is to completely bypass the violent history of conquest, colonialism, racial and gendered oppression, and coercion into positions of subordination 196 king, supra note 125 (referring to a “negative peace which is the absence of tension” in contrast to a “positive peace which is the presence of justice”). 2021] uprooting authoritarianism 59 and marginalization. apparently within neoliberal theory, coercion only refers to moving toward equality from the western subject’s perspective—or an infringement of its freedom—and not to the coercion faced by those brutalized into an unjust order in service to the constitution of the western subject and its life pursuits. this de-contextualization allows for the erasure of social power and dynamics and relationships of exploitation, creating the condition for the forced universalization upon which neoliberalism relies. take, for instance, the impact this reasoning has on david frum’s framework to judge the merits of immigration. frum states that “from an economic point of view, immigration is good because it encourages specialization and thus efficiency.”197 he mentions the lower standard of living many immigrants experience compared to american citizens leading them to also have lower wage expectations. he then walks through a scenario where an american citizen can free up some of her time by hiring an immigrant at a lower rate than what she would’ve paid an american, allowing her to save money and put that newly freed up time to other productive use.198 embedded in this sketch of how the economy works is the uncritical acceptance, as if preordained, of the hierarchical valuation of people that generates what has been termed “efficiency.” the same reasoning that allows frum to argue in a neutralpresenting way about immigration without confronting implicit assumptions about deservingness allows him to see in our economic system an impartial and detached apparatus that guides people to their highest productive placement and resources to their best use. this conceptualization also reveals why frum sees the disparity between global south and global north countries as a matter of degree of success, as opposed to relationships of colonial oppression that opened patterns of relation and causeways that presently generate economic value. such reasoning supports “[t]he overwhelming tendency . . . to present immigration as an issue that begins at the national border, with virtually no attention paid to the particular histories, international economic pressures, and specific us foreign policy practices that generate migration patterns in the first place,” which are “deeply tied to patterns of colonization and empire that stitch together the global north and the global south, as well as to the recent security politics of the [united 197 frum, supra note 103. 198 id. 60 colum. j. race & l. [vol. 11:1 states] and europe across the post-colonial world.”199 here lies the problem with how the immigration debate is framed. not only is it decontextualized to ignore the history of building fear of “inferior peoples” which is the basis for the anxiety that people experience from immigration patterns, it fails to connect those patterns to colonial oppression and expropriation and the continued reliance on the still extant relational infrastructure colonialism produced. in this way, it also obscures how these two actions are related: the belief that non-western people are inferior is forced into existence so people would act on that belief, supplying the subordinate relationship needed to extract economic value from them. this value never intended to be shared with the “middle stratum,” whose identity as white or european is meant to keep them satisfied. it is this arrangement, and not one of universal egalitarianism, that constitutes the western liberal project, which means that as these global chains of exploitation deprive more people and more of the globe becomes uninhabitable, it becomes more apparent that this prevailing ideology cannot deliver us to a sustainable future and is incapable of organizing human life much longer. it is better this reality be recognized than to look for ways to preserve this worldview by bending one’s analysis to the presumed inevitability of our current path. a number of these aspects of neoliberalism contribute directly to the rise of authoritarianism. brown points out that “because the political has been disparaged and attacked, but not extinguished while democracy itself has been thinned and devalued, undemocratic and anti-democratic political powers and energies in neoliberalized orders have swollen in magnitude and intensity.”200 additionally, since democratic governance should enact the will of the people and respond to social conditions which will disrupt the rule of the market bound only by traditional norms, milton friedman “legitimiz[es] political authoritarianism to forge liberalized markets.”201 friedman calls for a strong central authority to uphold traditional values and fortify the market from intrusion (all of which can involve oppressive crackdowns on the marginalized as well as on dissidents and coercion to confine people to their subordinated position within the order, but of course for friedman legitimate coercion only flows in one direction).202 with the political sphere withered, “truth withdrawn from political life is rolled over to 199 singh, supra note 118. 200 brown, supra note 180, at 58. 201 id. at 66–67. 202 id. 2021] uprooting authoritarianism 61 moral and religious claims rooted in the authority of tradition. the effect is to sever truth from accountability (a recipe for authoritarianism).”203 all of these conditions—the insistence that the self be constituted through domination and the oppression of women, people of color, and other marginalized populations; the valorization of traditional values that derive from and contribute to the same project; the assault on democracy and the legitimization of authoritarian rule— encourage and instigate the reactionary and authoritarian environment we are living through currently. not only does neoliberalism foster authoritarian uprisings, it has come to dominate current thought and reasoning, revealing how even efforts to contain the authoritarian surge replicate its internal logic and therefore work against their own goal. stenner and haidt’s decontextualized rapidity of change and discomfort with difference mirrors the decontextualized theory of spontaneity of morals and markets, “the order without design,” described by hayek and his fellow neoliberal thinkers.204 the blindness to the force, oppression, and violence that went into creating the order that produced western traditions and values is the same type of blindness that allows people like friedersdorf to speak of “different-ism” divorced from a connection to racism or white supremacy and descriptions from frum and others that frame the rate of immigration, and not a clinging to status for the dominant in-group, as the problem. hayek’s “common acceptance” as the “condition for a free society,” the negative peace, and the resignation to a subordinated position is taken up by stenner and haidt. they call for assimilation, a tempered and slow approach to equality, and an avoidance of significantly altering social arrangements to avoid a disturbance of the prevailing order and to mollify the authoritarian-prone. in brown’s reference to hayek’s advocacy for the “discredit[ing] of social justice talk . . . and the expansion of what hayek calls the ‘personal protected sphere’ to extend the purview of traditional morality,”205 echoes of the same can be heard in stenner and haidt’s encouragement to move slowly on equality and instead to commit to familiar common rituals and reaffirm traditional values and norms. they advance what is ostensibly a psychological analysis of an observation of human nature but they make the same assumption that hayek does— 203 id. at 102. 204 id. at 34. 205 id. at 104. 62 colum. j. race & l. [vol. 11:1 that they are dealing with nature and not social constructs. they are, in effect, operating within and promoting a line of neoliberal reasoning and, in doing so, are advancing the project of neoliberalism and falling into the same trap as its intellectual progenitors of generating the conditions that produce authoritarianism. to state it again, the western organization of society predicated on the prerogative of whiteness cannot deliver the world into a sustainable, egalitarian future. f. dealing with polarization authoritarianism, arising from these forces, imposes a tremendous strain on society, contributing to extreme polarization. the activation of authoritarian tendencies within thirty percent of the population does not fully explain society’s current experience of deep division. the question must be asked as to why this segment of the population appears to be, so to speak, punching above its weight, especially if, as stenner and haidt put it, there are categorical delineations between authoritarians, status quo conservatives, and laissez-faire conservatives. how is it, given that authoritarians exhibit certain tendencies that should disturb other conservatives, that this faction has coalesced into a firm identity group? why has the population generally consolidated into distinct and oppositional corners? in other words, what is the nature of our polarization? political scientists jennifer mccoy and murat somer comprehensively surveyed a number of countries where similar dynamics are occurring to develop a theory of deep division— what they refer to as “pernicious polarization.” this condition is characterized by the “division of the electorate into two hostile camps, where multiple cleavages have collapsed into one dominant cleavage or boundary line between the two camps,” whose political identities have become “mutually exclusive and antagonistic” social identities.206 entrepreneurial politicians, as the pair labels them, exploit existing socioeconomic divisions to the point that crosscutting identities that may sustain relationships and political interaction across separation dissipate, making way for hardened, adversarial identity groups. these two distinct groups increasingly come to see each other not only in an “us vs. them” manner but in “good vs. evil” terms, 206 jennifer mccoy & murat somer, toward a theory of pernicious polarization and how it harms democracies: comparative evidence and possible remedies, 681 annals, am. acad. pol. & soc. sci. 234, 246 (2019). 2021] uprooting authoritarianism 63 interpreting the other side as a credible threat to the nation and its cultural fabric.207 author jonathan rauch makes similar claims but adds that emotional attachment drives identity-based polarization. although ideology plays some role, it turns out that the internal ideologies of each camp demonstrate significant incoherencies.208 team affiliation, rauch concludes, depends on strong emotional identification rather than any set of consistent political ideas. affective polarization is what we are experiencing—the “subjective feelings [of partisans] towards each other”—and those feelings consist of deep disdain for the other side.209 rauch writes that “[i]t’s not so much that we like our own party as that we detest the other.”210 he cites university of memphis’s eric groenendyk, who finds that a strong dislike of the other party works to rationalize and deepen one’s sense of belonging to one’s party of choice.211 this emotionally-motivated connection also facilitates coalescing around diametrically opposed poles. even if the organizing ideology, rhetoric, and politics are being driven by the bases, out of team-identification, people with more moderate or even contrasting views can end up joining forces with the base in a polarized environment. this explains how authoritarians punch above their weight by forming an allegiance with status quo conservatives, who were offered “something more appealing than any particular list of policies: they [were] offered solidarity against a threat.”212 in this way, status quo conservatives “did not rally to trump because they embraced his message; they embraced his message in order to rally to trump. he offered a vivid us-versus-them story that energized one portion of the party, and then, once his followers redefined what “we” (the ingroup) believe, the rest of the party preserved its identity by scrambling aboard.”213 this summation contradicts stenner’s contention, communicated via friedersdorf, that status quo conservatives’ bonding with authoritarians constitutes an unnatural union.214 accusations of racism may push status quo conservatives in that direction, as the pair argues, but the resulting bond is not unnatural. it has everything to do with psychologically balancing the self-serving perception that society 207 id. 208 jonathan rauch, rethinking polarization, 41 nat’l affs. 86 (2019). 209 id. 210 id. 211 id. 212 id. 213 id. 214 friedersdorf, supra note 121. 64 colum. j. race & l. [vol. 11:1 is egalitarian with the material need for a hierarchical order. the racism accusation wound’s the status quo conservative’s selfimage—that is, their identity as someone committed to egalitarian principles. the recoil from this injury gives hard lines to the “them,” but pushes these conservatives toward an affective connection with people attracted to and moved by racial demagoguery and supportive of racial and gendered oppression, exposing the central confusion of western subject’s identity. to know how to respond to this deep and identity-based polarization, it must be understood how polarization of such a firmly seated nature arose. rauch roots polarization in the naturally tribal disposition of humans, stating that our emotionally driven polarization “satisf[ies] a deep atavistic craving to belong to an in-group and to bind ourselves to our group by feeling and displaying animosity toward an outgroup.”215 but, the assumption that humans are naturally tribal is strongly contested. for instance, writer brian stout posits that analyses of human behavior and theories about how we should design our world uncritically take for granted that humans are inherently primarily driven by competition and marked by tribalism.216 stout and rauch present the same jonathan haidt quotation: it is difficult for tribalistic humans to run and sustain a modern liberal society founded on compromise, toleration, and impersonal rules and institutions. pulling it off requires getting a lot of social settings just right. those settings include formal laws like the constitution, informal norms like law-abidingness and truthfulness, rulesbased institutions like free markets and elections, a system of education that inculcates liberal values, and public mores that honor and defend those values.217 but as rauch takes haidt’s statement at face value, stout challenges it and asks if humans are indeed naturally tribalistic. stout’s point is that haidt takes this assumption for granted, and therefore believes that the institutions and practices we develop must at their foundation protect us from our own divisive nature. but stout points out that perhaps the innateness of our tribalism 215 rauch, supra note 208. 216 brian stout, what if darwin was wrong?, building belonging, (feb. 1, 2020) https://citizenstout.substack.com/p/what-if-darwin-was-wrong [https://perma.cc/9qc2-2yx4]. 217 id.; rauch, supra note 208. 2021] uprooting authoritarianism 65 is exaggerated and that what we attribute to tribal nature may actually be socialization toward antagonism and contradistinction. in making this point, stout references journalist christine mungai who reminds us that the concept of tribalism is based on a racist stereotype borne out of colonialism and meant to demean those who the colonizers intended to civilize, and that what we often perceive as exemplifying our naturally tribal tendencies such as fierce conflict is likely better described as the manifestation of intense patriarchal socialization.218 tribalism in this sense can be read as a concept developed as the result of a persistent neglect of the extent to which people are hierarchically organized within society. as with the term tribalism itself, social stratification is de-socialized and naturalized. the process of de-socialization demands the shunning of an analysis of whiteness, patriarchy, or any type of super-ordination. when this analysis is removed, and therefore an analysis of power unconsidered, all there is left to observe are equally situated warring factions. therefore, any challenges to or defenses of whiteness, patriarchy, or other claim to the right of domination are misread and labeled tribalism. mccoy and somer perhaps provide a stronger basis upon which to develop an analysis of power. they argue that social cleavages alone cannot explain deep polarization, but rather what they term formative rifts sit at the root of pernicious polarization. they define formative rifts as “long-standing and deep-cutting divisions that either emerged or could not be resolved during the formation of nation-states, or, sometimes during fundamental re-formations of states.”219 in the united states, for mccoy and somer, this comes down to “the basic question of citizenship and who enjoys the rights espoused by the founding fathers—thomas jefferson’s ‘these truths’ of political equality, natural rights, and sovereignty of the people—has been debated since the founding of the republic and its differentiated citizenship for [enslaved africans], native americans, and women.”220 entrepreneurial polarizing figures also “seek to exploit grievances centered on political, economic, or cultural complaints; to activate latent resentments based on underlying cleavages and formative rifts.”221 these include feelings of being excluded or left behind without political representation, all but 218 stout, supra note 216. 219 mccoy & somer, supra note 206, at 237. 220 id. at 239 (citation omitted). 221 id. at 240. 66 colum. j. race & l. [vol. 11:1 forgotten by “unresponsive technocrats or expert governments”; or economic exclusion driven by inequality; or cultural grievances based on disputes around morality or “from a perceived loss or threat of loss of social or economic status by a dominant group in society.”222 while political actors exploit these grievances and feed polarization by doing so, the grievances themselves are not independent of but related to the aforementioned formative rifts. for instance, the cultural rift centered on morality disputes harkens back to wendy brown’s analysis on the development of traditional values through world-making around a “self” defined in opposition to subordinated others. additionally, mccoy and somer explain their point about economic anxiety through the example of this grievance’s attachment to the idea of job-stealing immigrants and declare, “the reaction of white, male, christian, trump supporters to the presidency of a biracial man in the united states, and to the growing diversity of the united states (in terms of race, religion, sexual orientation, and gender relations in the workplace) exemplifies a perceived loss of social and economic status.”223 all of these examples of exploitable grievances share at their root that formative question for the united states of who belongs, whose humanity is to be fully recognized, honored, and supported by the institutions and engines of opportunity of the nation. a continual struggle, essentially, with the question at the center of the civil war conflict: will the nation constitute its definition of the people around an exclusive “we” or by the recognition of everyone’s shared humanity? the perceived loss of status leads to what brown identifies as a nihilism growing out of an erosion of whiteness— the loss of status that stood in for self-constitution. she refers to marcuse who saw social and political violence as a result of “individuals getting used to the risk of their own dissolution and disintegration.”224 brown points out that marcuse understood this as a reaction to the cold war nuclear threat and then herself applies this insight to describe the fallout from “world-ending climate change or other existential threats.” however, it just as well characterizes how fundamentally entangled whiteness or dominant in-group identification seems with the natural self—so much so that a loss of status feels like existential destruction, unleashing a nihilism and a violence completely fine with tearing 222 id. at 236–41. 223 id. at 241. 224 brown, supra note 38, at 168. 2021] uprooting authoritarianism 67 down a world that moves closer to equality since the end of the world and the end of whiteness is perceived as one and the same. revisiting rauch, he concludes by advocating for bridging, stating that “we need understanding and awareness; then we can build personal and community connections; then we can rebuild social norms and institutions.”225 he is correct in this assessment. the question remains, however, if his path there can be trusted given his power-absent conception of identity politics and tribalism. an analysis of whiteness has to be a part of any serious grappling with understanding and responding to polarization and authoritarianism. the presence of which will engender solutions that recognize whiteness as an impediment to belonging and the fuel re-instigating division, as opposed to solutions that continue to accommodate it. rauch raises the factors that he sees as having exacerbated deep polarization. the loss of civic organizations, the erosion of political safeguards “designed to protect the system when the settings go out of alignment,” “a social life without supports,” and the regarding of institutions as “obstacles to personal fulfillment”—all conditions brown identifies with the demands neoliberalism makes on society.226 although he clearly understands market fundamentalism’s contribution to our divided state of affairs, he lumps identity politics in with market fetishism as root causes along with “fears of economic and cultural displacement among whites,” and “the decline of traditionally masculine jobs and social roles leaving workingclass men feeling emasculated and marginalized.”227 he connects these things without having a critical analysis for how they are connected. there is no attempt to address the fact that the “traditionally masculine” jobs and social roles he writes of are based on white male super-ordination and the exclusion of all who are barred from that category to give shape to white male identity. what he calls identity politics are simply demands to no longer be excluded and subordinated. the shared identity that he claims is eroded by identity politics is less a shared identity than an acceptance of place in a stratified established order. any enjoinder to again rally around this shared identity is none other than the bidding of white male identity politics. furthermore, as long as the self is built out of a sense of dominance—accepted in exchange for acquiescence to a callous economic system—this self will feel crushed from both ends as it perceives a loss of status at 225 rauch, supra note 208. 226 id.; brown, supra note 38. 227 rauch, supra note 208. 68 colum. j. race & l. [vol. 11:1 calls for equality and as payment in the form of dominant identity becomes less valuable due to the excesses of capitalism becoming more audacious. the likely result being that the selfengages in acts of breaking to reaffirm itself. an identity that does not assume dominance over anyone is therefore needed. rauch is right to echo yuval levin’s call for a stronger “structure of social life; a way to give shape and purpose, concrete meaning and identity, to the things we do together.”228 but instead of building that togetherness through institutions that assume that we are of a rivalrous and tribal nature, we must design institutions that facilitate our cooperative nature and do not take for granted white male primacy in their design. practices such as deep canvassing can help toward this end. researchers have found that this technique—engaging in a two-way discussion guided by non-judgmental listening and surfacing common humanity can facilitate belonging and a reduction in prejudice and that the effect lies in the mutual exchange of narratives about receiving compassion from others.229 deep canvassing, in other words, provides experimental evidence supporting a real-world positive impact of bridging and the fostering of belonging. the primary political scientists studying deep canvassing hypothesize that “it works because it’s not threatening. people are resistant to changing their mind during an argument, the hypothesis goes, because it threatens their self-image,”230 exemplifying on an interpersonal level the work that self-image does on the scale of the collective western identity and revealing the best way to approach this entry point for bridging given its central function. the researchers also conclude that their findings “tell you something about just how willing most americans are to have an open conversation with a stranger about . . . ostensibly divisive issues,” which serves as “a reminder that our political opponents aren’t always as rigid or ideologically severe as they appear in our minds.”231 it is a reminder that there is good reason for optimism that dasgupta and goyal’s “perpetual possibilities” can rise above the collapsing of our identities that polarization induces; that we should not give up on fostering together new identities that have no need for dominance; and that instead of tribalism 228 id. 229 brian resnick, how to talk someone out of bigotry, vox, (jan. 29, 2020, 9:40 am) https://www.vox.com/2020/1/29/21065620/broockman-kalladeep-canvassing. 230 id. 231 id. 2021] uprooting authoritarianism 69 being our nature, perhaps our nature is “our capacity to learn and improve” and “expand our concept of what it means to be human.”232 vii. where do we go from here? a. a new imagined order for these reasons, it is necessary for any proposed solutions to today’s social issues to incorporate all people fully into the circle of human concern. to paraphrase martin luther king, jr. in his speech, “where do we go from here?” a person who will lie will steal, and a person who will steal will kill. in order to change, one must be born again. one’s structures must change. the same is true for the united states. a nation that will enslave will commodify people, a nation that commodifies people will exploit the poor generally, and it will pillage the resources of other nations and protect those foreign investments with military might. the nation itself must radically transform.233 in a sense, the american civil war was a fight over whether to maintain a segment of the population in a state of social death or to realize lincoln’s call in the gettysburg address for a new birth of freedom.234 marche sees the united states as barreling dangerously toward another civil war,235 but united states history can be thought of as a constant and repeated reengagement with this “formative rift”—that it is okay to render some people socially dead and marginalized, confined to a stratified order, or that the circle of human concern should include all. as dr. king argues, a system corrupted at its core cannot be reformed into a just version of itself—it must be reborn. a rebirth of freedom is required to achieve a society of belonging, hand in hand with the construction of a government responsible for the larger good and a renewed commitment to all people and not just profits or market efficiencies or commercialism. a government responsive to the people and one that recognizes everyone’s humanity must be forged, and the social justice movement must lead the charge. for people 232 stout, supra note 216. 233 martin luther king, jr., where do we go from here?, address to the southern christina leadership eleventh annual conference (aug. 16, 1967) (transcript available at https://kinginstitute.stanford.edu/kingpapers/documents/where-do-we-go-here-address-delivered-eleventh-annualsclc-convention [https://perma.cc/x98p-g4f7]. 234 abraham lincoln, the gettysburg address (nov. 19, 1863) (transcript available at https://rmc.library.cornell.edu/gettysburg/good_cause/transcript.htm) [https://perma.cc/6qta-6euj]. 235 marche, supra note 7. 70 colum. j. race & l. [vol. 11:1 engaged in social justice work, this translates into a need to create a new imagined order, a realization of the multiplicity and interconnectedness of the self and all systems, and the understanding that this work cannot move forward without love and engagement. as harari illustrates through his imagined order argument, society is based on a network of fictions that exert real power in the material world. therefore, it is up to society to decide what type of force it wants to wield upon the physical world and physical beings. a society of belonging is possible, but it will require new stories for people to believe in. in harari’s words, “in order to change an existing imagined order, we must first believe in an alternative imagined order.”236 b. the multiple self, spirituality, and a society of belonging a new imagined order will require a transformation of the self and an unseating of whiteness, as it is deeply intertwined in western ideology and is an animating force for western society and western political legitimacy. clearly, exposing whiteness as a fiction will require the presentation of a new identity built upon love, connection, multiplicity, and belonging. a self-capable of embracing full and substantive equality for all and holding all life and nature within its circle of concern must be the project we pursue for ourselves and must be the basis from which we build. from intersectional feminism developed by women of color to w.e.b. dubois’s double consciousness theory, many people of color have expressed that the unitary, single-identity self never fully described or accurately represented their perception of self.237 for many, trying to fit into the western conception of the self-caused great dissonance, frustration, and lack of completeness. although “there is no dissonance between societal definitions of humanity and whites’ personal experiences of humanity,”238 as the western self was constructed in the image of whiteness and maleness, this feeling of completeness as a unitary being is still just an illusion and an invention supported by social underpinnings. in order for the western self to make a convincing claim to universality, the centrality of whiteness and maleness to its construction must be rendered invisible. however, as black feminist theory’s concept of intersectionality makes clear, the self is always marked by race and gender. therefore, the white male is “no more a unitary, cohesive 236 harari, supra note 131, at 118. 237 powell, racing to justice, supra note 27, at 169–77. 238 id. at 170. 2021] uprooting authoritarianism 71 individual than is the black female,” or any other constituted being having a number of potent and conflicting components of identity.239 despite the fact that for the white male, experience and the western understanding of the self-share the strongest overlap, dissonance and disappointment stemming from the fissure between the expectation as a fully constituted western self and what is actually experienced manifest in other ways. revisiting jardina’s findings, “whites feel, to some extent, that the rug is being pulled out from under them—that the benefits they have enjoyed because of their race, their groups’ advantages, and their status atop the racial hierarchy are all in jeopardy.”240 when the conception of self to which one adheres confirms that one is the ultimate being deserving of society’s rewards, a sense of failure and resentment toward others emerges when one sees others advancing relative to one’s position. this sense of suffering feels like existential suffering because white people are so convinced that whiteness is the constructive tissue of the self and not a social construct that ruptures them from a multitudinous identity connected to others who have been established as estranged subordinates. to give in to demands fueled by this sentiment, as stenner and haidt propose, would be to bend to an artificial and false sense of self that must exclude non-white people to feel whole. instead, it is necessary to take note of john rawls’s insight that “individual wants and desires are themselves a product of situatedness and background institutions.”241 harari makes a similar point, stating that “every person is born into a pre-existing imagined order, and his or her desires are shaped from birth by its dominant myths. . . . even what people take to be their most personal desires are usually programmed by the imagined order.”242 the desire to suppress diversity or to limit immigration are not products solely of an aversion to complexity and rapid change—especially when crackdowns on immigration are so selectively activated—but a function of the angst and anger of white identity not living up to its promises and expectations. stenner and haidt do not understand this because they operate in a framework that they believe to be universal, objective, and impartial, but it is in actuality a framework 239 id. at 187. 240 edsall, white identity, supra note 149 (quoting jardina, supra note 149, at 267). 241 powell, racing to justice, supra note 27, at 199. 242 harari, supra note 131, at 114–15. 72 colum. j. race & l. [vol. 11:1 conceived for the purpose of creating and justifying white racial hierarchy. this also speaks to why they are more sympathetic to the pleas of authoritarians than to the societal inclusion of people of color. the pleas, in part, make sense to them because their identities are cut from the same cloth. to revisit crenshaw’s insight, hegemony refers to “a system of attitudes and beliefs, permeating both popular consciousness and the ideology of elites.”243 stenner and haidt’s proposal to engage with and listen to people who have authoritarian leanings—a group potentially as large as a third of the population—is correct, but not in the way that they suggest. the answer is not to acquiesce to their demands for less diversity and suppression of minority communities or to advance a same-ing approach to resolve the conundrum of otherness. the answer is to develop a new metanarrative that creates fertile grounds to grow a culture of belonging and to turn to spirituality for assistance in that process. c. spirituality and engagement there are vast and relevant lessons to be learned from spirituality with regard to repairing the damage of whiteness. it severs the intrinsic connections between all people and a whiteness-based identity creates suffering. spirituality is the journey toward a deep connection with other people, forms of life, and the planet as humans contend with the fact of loneliness (a life divorced from meaningful connection) and death—what can be referred to as existential suffering. because the western self is so intertwined with whiteness, many white people assume that whiteness is essential to, or is, the organic self. therefore, any effort to expose whiteness or any erosion of the ‘wages of whiteness,’244 or the benefits that being white are supposed to bestow, feels like existential suffering. an end to whiteness feels like death. this suffering of course is not based on actual grappling with mortality, but rather a false sense of existential suffering based on a fictional identity. this physically real pain, borne of an artificial distinction, is the root of authoritarian anger. doctor and professor jonathan metzl discusses this in an article adapted from his book, dying of whiteness, as he profiles a white man of middle age who is dying of preventable diseases in a state that does not have the affordable care act medicaid expansion—the rejection of which he supported. metzl asks the 243 crenshaw, supra note 49. 244 roediger, supra note 45, at xx. 2021] uprooting authoritarianism 73 man if he regrets, now that he is dying, opposing the health care expansion. his answer is still an unequivocal “no,” described by metzl as “a literal willingness to die for his place in this hierarchy, rather than participate in a system that might put him on the same plane as immigrants or racial minorities.”245 this man’s position, for metzl, is representative of a whole subgroup of white people whose value fully depends on their symbolic membership to the white in-group. this is why the potential for “outsiders” to benefit from the privileges attached to citizenship and gains by people of color induce such anxiety. with nothing to differentiate the standing of those long depicted as “others” from the elevated status white in-group membership is supposed to bestow, the resulting “insecurities can lead them to act in ways that seem at odds with their own longevity.”246 metzl writes that these harms result from a politics of resentment that “gain traction by playing to anxieties about white victimhood in relation to imagined threats.”247 the people suffering from these self-inflicted wounds are the people stenner and haidt argue we should give more attention to. yet, when it comes to their anxieties that are being exploited, why is their answer to accommodate these anxieties, which can be reduced and alleviated, as opposed to combating and lessening them with practices of deeper belonging? emphasizing common rituals and clinging to traditions will not only leave these anxieties latent but firmly in place and further entrenched, making them all the more explosive the next time they are unearthed by the next round of social change. it is tempting to acquiesce and feel sympathetic to this anger, especially when the universality of the western self is taken for granted, but creating a true society of belonging requires the dislocation of whiteness from its central position and its replacement by an acceptance of the multiple self. true belonging requires understanding the ways in which whiteness operates in western society—that its bonding force is an adhesive for the white in-group, upon a narrow white racial identity. both brewer’s and dasgupta and goyal’s works contain the seeds for achieving a society of belonging. their arguments rest on the concept of the “multiple self.” brewer advances this notion by citing gordon allport’s concept of concentric loyalties where “loyalties to more inclusive collectives 245 metzl, supra note 106. 246 id. 247 id. 74 colum. j. race & l. [vol. 11:1 (e.g. nations, humankind) are compatible with loyalties to subgroups (e.g. family, profession, religion).”248 this is dasgupta and goyal’s “perpetual possibilities” argument that “individuals prefer to have rich (multiple) identities in excess of what groups desire.”249 the powerful group members that stand to gain from narrow inter-conflicting groups will incite and encourage fear of the other, unleashing authoritarian tendencies and promoting division and tension. as dasgupta and goyal propose, group members have a deep desire to realize their multiple identities. overcoming the rise of authoritarianism needs to involve working against the group desire to maintain narrow identities and helping people to understand, explore, and live through their latent multiple selves. stenner and haidt explain how authoritarian tendencies are latent within a population—but, as dasgupta and goyal point out, so is the potential for “perpetual possibilities.” this tendency for connection and broad selfdefinition must be fostered and advanced, instead of the tendency to retreat, close off, and exclude. d. unearthing the multiple self the first step is to recognize that part of what it means to be a “multitudinous self” is that the “other” is inseparable from the “self”—that within everyone considered the “we” exists everyone considered the “them.” as an alternative to acquiescing to authoritarian demands, roberto unger’s concept of engagement offers a more constructive pathway forward. unger explains that “through engagement, we experience both mutual need and mutual fear of the other. . . . the other is thus necessary both for the constitution of our being and for the realization of self-expression and growth. . . . because we need the other and are threatened by the other, there is an interplay of love and hate.”250 this offering is useful in a number of ways. firstly, it is based off an understanding of the self in contrast to the western unitary self. it understands being as numerous and multiple— proposing that within everyone is everyone else. this framework provides a comfortable landing spot for those most threatened by the disappearance of a unitary identity based on whiteness—a reminder that their prior identity was an artificial one and a reconnection to the latent but inherent desire to leave behind a narrow identity for one of endless potential. 248 brewer, supra note 44, at 434 (citing gordon w. allport, the nature of prejudice (1954)). 249 dasgupta & goyal, supra note 56, at 414. 250 see powell, racing to justice, supra note 27, at 203 (citing roberto mangabiera unger, passion: an essay on personality (1984)). 2021] uprooting authoritarianism 75 secondly, the contending with the fear of the other even as we engage with the other is the foundation of belonging and describes the dynamic process of bridging. an alternative response to anxiety produced by the changing “we” is to embrace through stories and practice an inviting and empathic space. the other is not the infinite other. bridging rejects the categorical other but does not require that the other and the self become the same—only that the self recognize the other within it. bridging calls for the construction of spaces and stories for a large, inclusive “we.” the acceptance and inclusion of an other, despite their differences, is what constitutes authentic belonging. when one engages in deep bridging over time, there is a shift. the emphasis is no longer just to empathize with the other, but to begin the project of building a new and larger “we”—where the “other” stops being the other. this is the process of real belonging. when this is institutionalized in policies, laws, and culture, then it becomes a belongingness paradigm. this may seem like inclusion or even assimilation. in fact, it is neither and differs from stenner and haidt’s proposal of accepting immigrants and racial minorities only on the basis that they assimilate, renounce their cultural customs, and flatten their differences in the name of oneness. assimilation, especially in one direction, is an erasure. some of the pundits who opine about white anxiety suggest that we comfort white people by reminding them that they have a good chance of remaining both the demographic majority and the power majority long into the future and that there is a place in such an arrangement for non-white people.251 there are a number of problems with this proposal for accommodation. it is too willing to make peace with white anxiety by conceding to white dominance. it operates from a false binary of either white dominance or non-white dominance. this is still a form of breaking. the calls for assimilation made by stenner, haidt, and other proponents of the same view are akin to the categorical dismissals of identity politics that many on the left have adopted, most recently in the aftermath of the 2016 presidential election. such views understand identity politics as distracting from central issues that affect everyone, like economic inequality, health care, or climate change. this type of narrow politics, it is argued, is merely the special interests of marginalized groups and are the source of anxiety and resentment that forgotten, everyday and working-class people experience. 251 edsall, who’s afraid?, supra note 94. 76 colum. j. race & l. [vol. 11:1 however, behind “everyday” and “working-class” is an assumed whiteness. and since white identity is also believed to be universal, there is a presumption that everyone is situated identically to a set of core issues. neglected is the fact that marginalized people care about these issues too, but until they are recognized as full members of society, any universal proposals will inadequately address their relationship to these issues. what does a universal approach to economic inequality mean for people who continue to be harmed by structural race and gender discrimination? how can education policy that neglects the specific redistributional needs of communities of color be universally beneficial? if transgender people cannot receive the medical care they need and face persistent misperceptions and prejudice, how would a universal approach to health care solve these issues? what promises do universal climate change strategies hold for people of color when high emission power plants continue to be zoned into their neighborhoods? what does it mean to base policy decisions on an assumption that everyone has the same understanding of ‘public safety’ in a nation where law enforcement has always been used as a method of social control of black people? there is greater concern for losing people to demagogic appeals who would otherwise support a progressive platform than for understanding why their support for progressive policies is dependent on the exclusion of marginalized people. a strong willingness exists to move toward accommodating this constituency instead of grappling with the reasons a message of othering is having such a powerful impact. this is not a departure from identity politics but a pivot to exclusively embrace white identity. a move in this direction under the paradigm of universalism is a form of breaking—the same-ing that compels erasure of difference. it leaves intact whiteness’s claims to universalism and the expectation that full societal membership and social gains are its exclusive domain. this breaking needs to be abandoned for the deeper challenge of bridging. the deep bridging described in this article calls for another approach. the solution to othering is not same-ing or assimilation, but belonging. belonging moves beyond assimilation and superficial inclusion. it acknowledges that all are co-creating the conditions, institutions, and story that all will inhabit. unger concedes that the other’s presence can generate discomfort but argues that it is only through engagement that 2021] uprooting authoritarianism 77 one can possibly come to know one’s full self.252 this process can help in overcoming authoritarian tendencies to fear and reject the other. the process will not be easy, but it is more promising for a multicultural and multiracial society than giving in to authoritarian fears. for, “the greater our sense of interconnectedness, the greater the scope of our empathy and compassion for those who are suffering.”253 despite having differences, belonging allows for deep empathy, investment in, and concern for all. from advancements in psychology and neuroscience, we also know that “a lack of connection with others not only scars our emotions but also restructures and distorts the brain.”254 as stenner and haidt tell us that authoritarianism is “substantially heritable and mostly determined by a lack of openness to experience,”255 it stands to reason that engagement can help start to bring down that alarmingly high percentage—a third of the population—that has authoritarian tendencies instead of conceding defeat to this statistic as a fixed number. the love that spirituality breeds requires an engagement with the multiple self—a resistance to shortsighted and selfish interests to constrain life to narrow identities. again turning to unger, “we must reject those institutions and structures that limit and frustrate our multiple evolving ways of embracing love, hope, and charity in our routine human relations.”256 the hegemony of whiteness is deeply entrenched, to the point that it operates invisibly. crenshaw explains that hegemony “convinces the dominated classes that the existing order is inevitable.”257 however, “accepting the falseness of what is deemed natural and necessary in our existing context is only the beginning of opening our imaginations to possibilities that can better reflect our own contingencies.”258 the hegemony of whiteness is not inevitable, and existing behind it is true love and a path to a society of belonging. e. working toward a just world for all as the western unitary self has been demonstrated to be fallacious and a central component of an exclusionary imagined order, the social justice movement must embrace the multiplicity 252 powell, racing to justice, supra note 27. 253 id. at 221. 254 id. at 209. 255 stenner & haidt, supra note 8, at 183. 256 powell, racing to justice, supra note 27, at 208. 257 crenshaw, supra note 49, at 108. 258 powell, racing to justice, supra note 27, at 208. 78 colum. j. race & l. [vol. 11:1 of the self as a composite of the “we” and the other. by extension, the same recognition must be applied to the interconnectedness of all life and all systems. in this same mode of thinking and practice, not only must the work of the social justice movement itself be integrated and the connection of all life understood, there also needs to be a recognition that the breaking and othering occurring in the united states is not an isolated phenomenon but connected to the same process of breaking and othering happening around the globe. this knowledge of multiplicity is inherent to critical race theory, as the field is not monolithic, but a hetero-doctrinal undertaking in understanding and addressing social issues. this approach can be instructive for the work social justice takes on and the way in which that work is conducted. in order to advance a new meta-narrative of belonging, the work needs to reflect the goal. the social justice movement, and race scholars in particular, need to engage with the world in the same interconnected manner in which it understands the world. that means working with policymakers and those involved in implementation. that means teaming with activists. that means inter-institutional and multi-sector work. and most importantly, that means engaging with the communities that are the subject of this work—the most marginalized and vulnerable of society. as fanon demonstrates in the wretched of the earth, the greatest knowledge lies with the most oppressed peoples. academia does not offer superior knowledge; it provides the skills to uplift the voices with whom knowledge already resides.259 the social justice movement is at the service of those in need. approaching the work in this way can serve as a reminder that the issues facing marginalized communities are structural and interconnected, even if experienced personally. transgender rights scholars rickke mananzala and dean spade write on the transgender movement and how it can be informed by black liberation and black feminist thought. they cite as a powerful example the black panthers’ survival programs. these programs were essentially service delivery programs, but it was connected to the panthers’ message of societal transformation. mananzala and spade argue that there is a severance between personal roadblocks and structural barriers because in the nonprofit sector, service delivery has been siloed from social 259 frantz fanon, the wretched of the earth (richard philcox trans., 2004). 2021] uprooting authoritarianism 79 transformation work.260 the social justice movement must be thoughtful in the same way by connecting its work to people’s everyday struggles and linking those struggles to systemic injustices. this connection can only be achieved through direct engagement with these communities. there must also be a recognition that social justice work is global and that the struggles for liberation and belonging are connected and transcend borders. the inadequacy of the nationstate system to rein in the abuses of global neoliberalism demonstrates the necessity for a new system of organization and a new effort to co-create institutions that serve all people. the current structure of strong national borders—and even the conception of the nation-state based on the westphalian model— is fraying and in need of reconsideration. restricting citizenship and free movement tends to make acceptance into a nation’s dominant in-group more valuable and more strongly desired. in the united states, for instance, another effect of the trump administration’s strict immigration policy for people migrating from non-white countries, is to make whiteness—to the extent that it is equated with citizenship—all the more coveted. as dasgupta states, “citizenship is itself the primordial kind of injustice in the world. it functions as an extreme form of inherited property.”261 hard and fixed borders also deepen and perpetuate the inequality resulting from the racial arbitrage that a significant amount of the global economy needs for its existence. the solutions on the table to address the consequences of the current economic order and lack of oversight are insufficient and misguided. the neoliberal answer is to bolster the nation-state organization within the current global economy while also allowing multi-national corporations to supersede national borders. this result occurred in part because of western ideology’s inability to see its own flaws and its undimmed belief in the universality of the nation-state. just like the desire in constructing a “we” to return to some imaginary ideal past, the “nostalgia for that golden age of the nation-state continues to distort western political debate to this day.”262 the west is mistaken about an inherent goodness of the nation-state structure because it was devised to serve the west’s interest and promote the existing advantages in place as a result of 260 rickke mananzala & dean spade, the non-profit industrial complex and trans resistance, 5 sexuality rsch. & soc. pol’y 53 (2008). 261 dasgupta, supra note 112. 262 id. 80 colum. j. race & l. [vol. 11:1 colonization. universalism sullied the west’s judgment in assuming that the benefits the west stood to receive would be enjoyed globally—never mind the fact that many of the nations the west arrogantly and carelessly cobbled together cut across and inflicted divisions created or exacerbated by their colonial histories. the neofascist solution is to withdraw from the global order—to turn inward and reclaim a powerful nation-state for a narrow group of a pure and true people. this is clearly extreme breaking, motivated by ideas of an essentialized dominant ingroup identity around which nations are currently constructed and can lead to nothing but deeper violence and fracturing of humanity. it is undeniable that the nation-state system is being challenged by the realities of the current global political economy. yet, this issue is not being sufficiently grappled with to produce a workable solution. this dilemma must be taken headon and driven by a desire to achieve full human recognition for all, a respect for the planet and all forms of life, and with a goal of an all-encompassing belonging and circle of concern. a remaining question, then, might be how to bridge with people who are grounded in a claim of superiority, the right to dominate and a striving for purity, and whether this bridging is necessary. given this atmosphere, those engaged in the work of social justice must work harder to do the work of bridging, of embracing and celebrating differences, and of pulling everyone into the circle of human concern. as frederick douglass points out, “power concedes nothing without a demand.” change will require struggle, but this struggle gives meaning and enriches humanity. the answer is to not start by building bridges with those folks but to still avoid breaking. begin with shorter bridges and as this practice becomes more routine, start to bridge across larger divides. it is also important to be mindful of wellbeing as the process to engage in the practice of bridging begins. healing is an important part of the bridging process as a recognition of one’s own identity and the identities of others constituted at a distance from oneself will inevitably cause initial tension. but, as these small bridges grow into larger efforts to bridge, this process in itself is a form of healing. as strong human connections are made with people who were previously distant, those connections restore a previously missing need and fill a chasm that was disruptive to the self. having that connection that bridging brings elevates the shared humanity of all and contributes to healing. 2021] uprooting authoritarianism 81 bridging across large divides is also necessary to help create a place and a resonant identity in the new imagined order for those whose former identities relied so heavily on the need for an “other.” the stories that are told about who constitutes the “we” don’t only create a sense of a “we” but also create a sense of self. psychologists assert that there is no stable sense of self until the development of a self-story. it matters little that these stories are not always accurate and oftentimes are myths. the purpose of this effort is not to build the truth, but to build a self and a people. one might notice that the claim of purity is not only false, it is also anxiety-producing. anything that is pure is always under the threat of contamination and being destroyed. the anxiety has been shaped into an existential, ontological threat that has the sense of religion gone bad. the purity central to whiteness has contributed to the anxiety surrounding whiteness’s eroding social currency. realizing that purity is a hollow device meant to create an artificial sense of worth and its replacement with the authentic meaningfulness constructed through engagement and a broad encompassing “we” must be integral to the advancement of any new narrative. we should be clear: we are not suggesting that there is not deep anxiety for conservative white males, nor are we suggesting their anxiety be ignored. any path forward must include this group, but we should be equally clear that inclusive fairness and belonging cannot be built upon continued domination either by whiteness or by neoliberalism. as brown states, “th[is] politics of [resentment] emerges from the historically dominant as they feel that dominance ebbing.”263 whiteness and patriarchy provided the basis for dominance. but, it is also true that these forces serve as the basis for this group’s dominance as well as domination, “as whiteness, especially, but also masculinity provides limited protection against the displacements and losses that forty years of neoliberalism have yielded for the working and middle classes.”264 in the building of a broad and inclusive “we,” this group cannot be excluded. there must be space even for the formerly dominant, as there needs to be recognition that the construction of in-group hierarchical identity involved their subjugation as well—as long as it is unequivocally clear that the broad and welcoming space created for this purpose and the co-constitution of a new “we” cannot in any way rely upon a need to dominate. 263 brown, supra note 38, at 175. 264 id. 82 colum. j. race & l. [vol. 11:1 as the targets of oppression and the process of othering, there is an urgent role for people of color and other marginalized groups in overcoming the current social structure and advancing a new meta-narrative. people of color, women, the lgbtq+ community, and the differently abled, along with their allies in the social justice movement, are not simply joining something that is already there—this group is contributing to a new future. the price of the ticket is not erasure but compassionate engagement and practice. people of different identities will not necessarily become the same, but the sameness and differences existing between different identities will be held together by belongingness and caring. the goal then is not to displace white people or any other dominant group experiencing rapid change with a new dominant group. the goal is to displace dominance. in its absence, social boundaries become more porous and identities become more multiple and fluid. the stories and practices of a new narrative must have space for many “we’s” and aspire toward no categorical other. the new stories must be an array of everyone’s stories. these stories cannot just appeal to the head but must also engage the heart. one challenge is to put these stories into practice. this article is a call for such practice recognizing that the grammar, institutions, and stories can borrow from the past but must be open to a new future where all belong. columbia journal of race and law vol. 14 september 2024 no. 1 article the tragedy of felix frankfurter: from civil liberties and civil rights activist to reactionary justice paul finkelman1 this article reconsiders the life and record of supreme court justice felix frankfurter. frankfurter was smart, hardworking, and talented, serving as a great activist lawyer and important law professor in his early career. when nominated to the court, there were high hopes he would follow holmes and brandeis in leading a progressive court that would protect civil liberties and minority rights. however, it was not to be. on the court frankfurter became increasingly conservative and ultimately reactionary. in his opinions, he upheld persecution and discrimination of religious and racial minorities, occasionally hindered racial justice and civil liberties efforts, and opposed due process in criminal trials and fairness in elections. arrogant and dismissive, he constantly fought with his brethren, alienating almost all of them. in the end frankfurter was far too often on the wrong side of history, liberty and the law, and even legal ethics. the tragedy of frankfurter is that he abandoned the constitutional rights and protections that he supported from his graduation from law school until he donned his robes. he could have been a great justice. sadly, he was not. table of contents i. introduction..................................................................................... 1088 ii. from immigrant school child to harvard professor and presidential advisor ............................................................................................ 1092 iii. frankfurter’s protégés and the problem of judicial ethics ........... 1106 iv. the new justice trapped in a time warp ..................................... 1111 v. the new justice and world war ii ................................................ 1117 1 distinguished visiting professor in the center for holocaust and genocide education at saint elizabeth university in morristown, new jersey; distinguished visiting professor, university of cincinnati college of law; president william mckinley distinguished professor of law and public policy, emeritus, albany law school. i wrote much of this article when i was the robert f. boden visiting professor of law, marquette law school. i thank elana olson, martin kluge, and the rest of the marquette library staff for their help on this article; joseph kearney, chad oldfather, melissa love koenig, peter rofes, my other marquette colleagues who commented on this at a faculty workshop; my research assistant, alissa schuning at marquette, thomas hemstock, assistant director of the albany law school library, and my fellow scholars, linda barness, john q. barrett, jonathan bush, david g. cotter, robert j. cottrol, eric m. freedman, candace jackson gray, rande w. kostal, douglas laycock, richard quinlan, melvin i. urofsky, samuel walker, william m. wiecek, and nicole yanoso. i also want to thank the journal editors, especially amanda lu, aileen mckinstry, malik morris-sammons, jamail gibbs, gabriela r. ornelas, and marisa mancini for all their hard work and excellent editing. 2024] the tragedy of felix frankfurter 1087 a. the flag salute cases ............................................................. 1118 b. the japanese internment ........................................................ 1131 c. frankfurter and the holocaust ................................................ 1134 vi. the “democratic justice,” his brethren, and the problem of ethics 1136 vii. the anti-democratic justice: from world war ii to the cold war 1142 a. the sunday closing cases ....................................................... 1143 b. racial justice, segregation, civil rights, and policing .......... 1146 c. reapportionment ..................................................................... 1155 viii. conclusion ................................................................................ 1156 1088 colum. j. race & l. [vol. 14:1086 i. introduction felix frankfurter (1882-1965) should have been one of our greatest supreme court justices. he was razor sharp, a prolific scholar and author, hardworking, “with seemingly superhuman energy,”2 extremely well-read, knowledgeable in many areas outside of the law, and capable of producing elegant prose. before coming to the court, he served in the justice department and the war department in the taft and wilson administrations, was a harvard law school professor, a public interest lawyer at the highest levels of social change, and an advisor to franklin delano roosevelt both before and after his presidential election.3 brad snyder, a journalist and professor at georgetown law school, recently published a massive biography of frankfurter: democratic justice.4 what follows is not a review of that book, although i will cite the book often, rely on some of snyder’s impressive research, and challenge many of his arguments and conclusions. rather, this article is a review of frankfurter himself and an evaluation of his place in our legal and constitutional history. i particularly focus on his jurisprudence on race, minority rights, religious freedom, civil liberties, voting rights, progressive reform, social justice, and his shocking response to knowledge of holocaust. at a moment in time when the ethics of the supreme court itself are under intense scrutiny,5 i will also discuss frankfurter’s questionable behavior and his persistent ethical lapses while on the court. snyder defensively asserts that “the standard story about frankfurter is that he struggled to fill the seat once held by holmes. scholars have portrayed frankfurter as a judicial failure, a liberal turned conservative justice, and as the warren court’s principal villain.”6 snyder asserts that “none of these narratives rings true.”7 he argues that 2 william m. wiecek, the birth of the modern constitution: the united states supreme court, 1941-1953 (2006) 89. frankfurter’s wife, marion, once blurted out “do you know what it is like to be married to a man who is never tired?” james f. simon, the antagonists: hugo black, felix frankfurter and civil liberties in modern america 50 (1989). 3 melvin i. urofsky, felix frankfurter: judicial restraint and individual liberties 1-44 (1991). after fdr’s election frankfurter “tutored” various members of the administration on civil liberties and the importance of the aclu. samuel walker, in defense of american liberties: a history of the aclu 97 (1990). 4 brad snyder, democratic justice: felix frankfurter, the supreme court, and the making of the liberal establishment 714 (2022) [hereinafter “snyder”]. the book is 979 pages long. 5 see alison durkee, here are all the supreme court controversies that led to adopting an ethics code, forbes (july 29, 2024), https://www.forbes.com/sites/alisondurkee/2024/07/29/supreme-court-ethics-controversiesall-the-scandals-that-led-biden-to-endorse-code-of-conduct/. see also jennifer ahearn & michael milov-cordoba, alito piles on reasons for congress to act on supreme court ethics, brennan ctr. for just. (may 24, 2024), https://www.brennancenter.org/our-work/analysisopinion/alito-piles-reasons-congress-act-supreme-court-ethics; devon ombres, with its release of a new nonbinding code of conduct, the supreme court fails on ethics again, ctr. for am. progress (nov. 15, 2023), https://www.americanprogress.org/article/with-itsrelease-of-a-new-nonbinding-code-of-conduct-the-supreme-court-fails-on-ethics-again/; and michael waldman, new supreme court ethics code is designed to fail, brennan ctr. for just. (nov. 14, 2023), https://www.brennancenter.org/our-work/analysis-opinion/newsupreme-court-ethics-code-designed-fail. 6 snyder, supra note 4, at 4. 7 id. https://libus.csd.mu.edu/record=b1513222~s1 https://libus.csd.mu.edu/record=b1513222~s1 https://www.forbes.com/sites/alisondurkee/2024/07/29/supreme-court-ethics-controversies-all-the-scandals-that-led-biden-to-endorse-code-of-conduct/ https://www.forbes.com/sites/alisondurkee/2024/07/29/supreme-court-ethics-controversies-all-the-scandals-that-led-biden-to-endorse-code-of-conduct/ https://www.brennancenter.org/our-work/analysis-opinion/alito-piles-reasons-congress-act-supreme-court-ethics https://www.brennancenter.org/our-work/analysis-opinion/alito-piles-reasons-congress-act-supreme-court-ethics https://www.americanprogress.org/article/with-its-release-of-a-new-nonbinding-code-of-conduct-the-supreme-court-fails-on-ethics-again/ https://www.americanprogress.org/article/with-its-release-of-a-new-nonbinding-code-of-conduct-the-supreme-court-fails-on-ethics-again/ 2024] the tragedy of felix frankfurter 1089 frankfurter made significant contributions to “twentieth century america’s liberal democracy” because of his deep commitment to “the democratic political process,” his commitment to judicial restraint, and his mentoring of “a who’s who of american liberals in law and politics.”8 frankfurter did indeed make significant contributions to american law and culture as a legal activist working for social and economic reform from the time he left law school until he went on the court in 1939. he mentored many people who held important positions in american politics and law. but far from being a “democratic justice”—the title of snyder’s biography—i argue that frankfurter was in fact deeply anti-democratic. far too often he refused to lift his pen to defend the civil rights of minorities, to protect civil liberties, and to support meaningful representation in legislatures. as a justice he was not in fact supportive of “the democratic political process,”9 but vigorously opposed the entire idea of legislatures accurately representing people and voters, and complained bitterly when the supreme court began to require this.10 frankfurter was “important,” but importance is not the same thing as being admirable or on the right side of history—indeed, a review of frankfurter’s career reveals his often-repressive jurisprudence, which shows that indeed frankfurter was “a judicial failure, a liberal turned conservative justice.”11 in his last major opinion, he vigorously opposed the concept of “one person, one vote,”12 which almost all scholars and political commentators believe is central to any democracy. snyder has not convinced me that the “standard story” is wrong. on the contrary, his heavily researched and often elegantly written addition to the rather large literature on frankfurter,13 demonstrates that, to a great extent, the “standard story” is quite correct. although an early advisor and litigator for the american civil liberties union, once on the court frankfurter “was a great disappointment to the aclu,” as he became “the leading advocate of judicial restraint,”14 especially in cases of freedom of religion, civil rights, and fair political representation. an early advisor of the naacp, on the court he opposed federal prosecutions of police officers who brutalized or killed black americans while they were in custody, and found nothing unconstitutional about state agencies 8 id. at 4-5, 15, and 7. 9 id. at 5. 10 see baker v. carr, 369 u.s. 186 (1962) (frankfurter, j. dissenting) at 266-330. 11 snyder, supra note 4, at 4. 12 id. at 266-330. 13 an incomplete list of the many books on frankfurter includes urofsky, felix frankfurter, supra note 3. noah feldman, scorpions: the battles and triumphs of fdr’s great supreme court justices (2010); simon, the antagonists, supra note 2; leonard baker, brandeis and frankfurter: a dual biography (1984); bruce allen murphy, the brandeis/frankfurter connection: the secret political activities of two supreme court justices (1982); mark silverstein, constitutional faiths: felix frankfurter, hugo black, and the process of judicial decision making (1984); h.n. hirsch, the enigma of felix frankfurter (1981); michael e. parrish, felix frankfurter and his times: the reform years (1982); robert burt, two jewish justices: outcasts in the promised land (1988). 14 walker, in defense of american liberties, supra note 3, at 106. https://libus.csd.mu.edu/record=b1513222~s1 1090 colum. j. race & l. [vol. 14:1086 operating segregated restaurants.15 as melvin i. urofsky, our leading historian of the modern supreme court, noted some three decades ago: “instead of being the herald of a new jurisprudential age, frankfurter fought a valiant but ultimately ineffective rearguard action to divert the court from what he considered a disastrous path. a quarter century after his death his opinions are all but ignored by both the courts and academia.”16 if one were to update urofsky’s analysis, we would note that six decades “after his death,” frankfurter’s opinions are not only ignored, but are mostly forgotten. despite snyder’s valiant efforts to rehabilitate him, frankfurter’s two decades on the court remain largely forgotten in constitutional law, except when his opinions are remembered to point out some of his outrageous attacks on civil liberties and civil rights, which remain embarrassments in u.s. reports.17 as i will argue below, while on the court, frankfurter was not heroic, but tragic. he could have been great, but he was not. this article analyzes frankfurter’s early career and several of his judicial failings. part ii discusses frankfurter’s life before joining the supreme court. part iii looks at his many protégés and how his relationship with them was problematic after he went on the court. part iv examines his jurisprudence during world war ii, when he increasingly supported repressive laws and became what we might call the “antidemocratic justice.” this part also examines his response to the holocaust. part v examines his jurisprudence after world war ii, when he became increasingly hostile to protecting civil rights and civil liberties. apart from his frequent (but inconsistent) opposition to blatant segregation involving african americans, frankfurter was often a stubborn opponent of civil liberties, civil rights, and human rights. part vi raises questions about frankfurter’s ethics while on the court. part vii considers his 15 screws v. united states, 325 u.s. 91 (1945) (frankfurter, j., dissenting); monroe v. pape, 365 u.s. 167, 202 (1961), (frankfurter, j., dissenting); burton v. wilmington parking authority, 365 u.s. 715, 727 (1961), (frankfurter, j., dissenting). 16 urofsky, felix frankfurter supra note 3, at xii-xiii. 17 most infamously are his opinions in the two flag salute cases: minersville board of education v. gobitis, 310 u.s. 586 (1940) and west virginia board of education v. barnette, 319 u.s. 624 (1943) (frankfurter, j., dissenting), where he argued for the constitutionality of persecuting elementary school children because their religious beliefs forbade them from saluting the flag; his dissent objecting to a federal civil rights prosecution of a white georgia sheriff who beat a black man to death while he was handcuffed, screws v. united states, 325 u.s. 91 (1945) (frankfurter, j., dissenting), which the court majority described as “a shocking and revolting episode in law enforcement” screws at 92; his lone dissent in a grotesque case of police brutality against a black family on the grounds that the federal government should not abridge the rights of the states to conduct their law enforcement as they saw fit, monroe v. pape, 365 u.s. 167, 202 (1961), (frankfurter, j., dissenting), his one hundred page concurrence supporting laws that fined orthodox jewish merchants who sold kosher food or retail merchandise on sunday because their religion precluded from doing so on friday evenings or saturdays, mcgowan v. maryland, 366 u.s. 420, 459 (1961) (frankfurter, j. concurring and appendix i, 543-550; and appendix ii, 551559); and his stubborn dissent protesting reapportionment of outrageously unequal electoral districts and his weird belief that democracy does not require one person, one vote, in electing state or federal legislators. baker v. carr, 369 u.s. 186 (1962), frankfurter, j. dissenting at 266-330. 2024] the tragedy of felix frankfurter 1091 decisions at the end of his supreme court career. part viii offers some conclusions. i approach this article with the understanding that “democracy” means equal civil rights, equal justice under the law, equal political rights for all americans, and a political system that allows all voters equal representation in congress or state legislatures. in this context, frankfurter was a failure, as he upheld state laws and federal policies that supported racism and religious bigotry and opposed decisions giving voters fair representation in congress. in his biography of frankfurter, snyder praises this behavior as “judicial restraint,” often claiming it was “prescient.” but one can only wonder what sort of “democratic justice” supports expelling elementary school children for refusing to publicly violate their religion,18 or the incarceration of 120,000 innocent people in what one justice (and many commentators and scholars) described as concentration camps solely because of their ethnicity or “race.”19 frankfurter’s version of “judicial restraint” was often judicial abdication, as he vigorously opposed striking down repressive legislation and objected to applying federal civil rights laws to police who brutalized african americans,20 while upholding arbitrary and oppressive executive acts. his commitment to “democracy” did not include guaranteeing fair representation of the electorate in legislative districts; as i noted above, his last important act on the court was to vigorously oppose what we call “one person, one vote.”21 in his early career he supported fair trials for some controversial figures, such as the italian immigrant anarchists nicola sacco and bartolomeo vanzetti.22 but while on the court his commitment to due process of law and fair criminal trials did not include supporting a right against self-incrimination in state criminal trials23 or requiring counsel for indigent criminal defendants.24 frankfurter’s pre-court advocacy contrasted sharply with much of his jurisprudence on due process once on the court. furthermore, as explored in parts iii and vi, frankfurter often engaged in questionable judicial ethics. he constantly meddled in politics from the bench and adamantly refused to recuse himself from cases in which he had been involved before they reached the court.25 furthermore, and most striking, frankfurter’s notion of judicial restraint did not extend to his own off-thecourt political activities like lobbying government officials and the president, political meddling, helping the administration draft legislation 18 see infra part v., section a (discussion of minersville board of education v. gobitis, 310 u.s. 586 (1940) and west virginia board of education v. barnette, 319 u.s. 624 (1943)). 19 see infra pp. 1131-34 (discussion of the japanese internment cases). 20 screws v. united states, 325 u.s. 91 (1945) (frankfurter, j., dissenting); monroe v. pape, 365 u.s. 167, 202 (1961), (frankfurter, j., dissenting). 21 baker v. carr, 369 u.s. 186 (1962). 22 see infra pp. 1098-99. 23 adamson v. california, 332 u.s. 46 (1947) (frankfurter, j. concurring). 24 betts v. brady, 316 u.s. 455 (1942). 25 see infra, text at notes 365-66 (discussing service v. dulles, 354 u.s. 363 (1957)). frankfurter, while on the court, advised secretary of state dean acheson, before acheson fired service from the state department, without any due process, or evidence of wrongdoing. service sued to get his position back, and when the case came before the supreme court frankfurter stubbornly refused to recuse himself. 1092 colum. j. race & l. [vol. 14:1086 that might later be reviewed by the court, and sometimes giving legal advice to government officials or private litigants whose cases were likely to reach the court. justice frankfurter even testified as a character witness for alger hiss, in a case that seemed likely to later come before him. in other words, he could never “restrain” himself from political activities and other questionable behavior, while always insisting on “judicial restraint” when hearing cases that subverted due process, racial equality, and civil liberties. ii. from immigrant school child to harvard professor and presidential advisor in 1894, the eleven-year-old vienna-born frankfurter passed through ellis island, speaking only german.26 in 1902, at age nineteen, he graduated third in his class from new york’s city college with a stunning command of english and a deep respect for anglo-american history and culture.27 william m. wiecek observes, correctly, that he had “a facility with the english language that would have been extraordinary even in a native speaker,” although “his prose sometimes tended to preciosity.”28 a year later, he entered harvard law school where he would be first in his class for three years in a row.29 he served on the law review, but not as president, perhaps because he was jewish,30 since when “frankfurter reached the harvard law school as a student in 1903 . . . jewishness had assumed an openly stigmatizing meaning in american life”31 and gentlemanly antisemitism was common at harvard well into the 1930s.32 however, at this time none of the students knew what their class standing was, so being first in his class certainly did not guarantee this leadership role. moreover, while clearly hardworking and brilliant, frankfurter could be grating, argumentative, egotistical, and dismissive of people with whom he disagreed.33 thus, not being president of the law review was likely a function of both his personality and antisemitism. between graduation from law school and the beginning of world war i, he had two short stints in private practice on wall street,34 but 26 snyder, supra note 4, at 9. 27 feldman, scorpions, supra note 13, at 5. 28 wiecek, birth of the modern constitution, supra note 2, at 89. 29 urofsky, felix frankfurter, supra note 3, at 2. 30 snyder suggests this, snyder, supra note 4, at 24. 31 burt, two jewish justices, supra note 13, at 38. 32 snyder, supra note 4, at 142-45; burt, two jewish justices, supra note 13, at 38. the great african american historian john hope franklin was shocked in his first year at harvard’s graduate program in history, in 1935-36, when he suggested a fellow graduate student oscar handlin, be chosen as the president of the henry adams club, the graduate student history organization. franklin noted handlin was a straight a student. one of the other members of the club, with the support of everyone else in the room, explained to franklin “that although oscar did not have some of the more objectionable jewish traits, he was still a jew.” franklin, the only black in the room, was stunned by this open bigotry. john hope franklin, mirror to america: the autobiography of john hope franklin 65 (2005). handlin would later have a distinguished career as a harvard professor and win the pulitzer prize in history. 33 see hirsch, enigma of frankfurter, supra note 13, at 177 and passim for descriptions of the many unpleasant aspects of frankfurter’s personality. 34 in 1905-06 he was briefly at hornblower, byrne, miller & potter, before going the u.s. attorney’s office under henry l. stimson, in new york city until 1909, when he followed stimson into private practice until 1911. 2024] the tragedy of felix frankfurter 1093 otherwise until he went on the court, frankfurter served as a government lawyer, legal activist, public intellectual, scholar, and a key advisor to franklin d. roosevelt, before and after he reached the white house.35 during most of this period, from 1914 to 1939 he was also a professor at harvard law school. he was active in the naacp, a significant player in the american zionist movement, and an early supporter of the aclu, serving as the organization’s expert on labor injunctions, which were a major tool corporations used to stifle freedom of expression for union organizers.36 in 1914 he worked closely with herbert croly in the founding of the new republic, and while declining to officially be one of the editors, he worked closely with the journal and often wrote for it. he was an engaging conversationalist; famous for mixing great cocktails37 and acquiring and serving champagne during prohibition; and fond of good food, good wine, stylish clothing, and other trappings of elegance.38 and he was quirky. for example, he never learned to drive a car.39 from world war i until 1939, when he went on the court, frankfurter was extraordinarily influential in shaping public and legal policy, while both in and out of government service. in this period, frankfurter made his most important contributions to american law and society. the naacp, aclu, and new republic, which frankfurter worked with from the 1910s to the 1930s, are still flourishing more than a century later. his persistent support for progressive legislation and safe and fair working conditions for laborers still influences american law. his successful argument in bunting v. oregon established the precedent that states could constitutionally pass maximum hours laws.40 he put the securities act of 1933 into its “final form” before fdr sent it to congress,41 helped draft the national labor relations act (the wagner act),42 which the supreme court would narrowly uphold in nlrb v. jones & laughlin steel corp.43 his use of data and research to improve law enforcement and criminal justice, which followed the work of his mentor louis d. brandeis,44 35 urofsky, felix frankfurter, supra note 34, at 6-44. 36 walker, in defense of american liberties, supra note 3 at 55, 66. 37 feldman, scorpions, supra note 13, at 9. 38 urofsky, felix frankfurter, supra note 3, at 2; hirsch, the enigma of frankfurter, supra note 13 at xii-xii. 39 snyder, supra note 4 at 152, 215, and 637. 40 243 u.s. 426 (1917); see also simon, the antagonists, supra note 2, at 44-46; snyder, supra note 4, at 81-82. 41 jean edward smith, fdr 323 (2007). “an act to provide full and fair disclosure of the character of securities sold in interstate and foreign commerce and through the mails, and to prevent frauds in the sale thereof, and for other purposes,” act of may 27, 1933, 48 stat. 77 (1933). 42 snyder, supra note 4, at 253-54; act of july 6, 1935, 49 stat. 449 (1935). 43 301 u.s. 1 (1937). 44 see brandeis’s famous brief in muller v. oregon, 208 u.s. 412 (1908); melvin i. urofsky, louis d. brandeis: a life 212-28 (2009). along these lines, one of frankfurter’s great contributions while a full-time professor was the massive (more than 750 pages) study written by the cleveland foundation and the survey of criminal justice, of which frankfurter was a co-director. the cleveland foundation, criminal justice in cleveland (1922). one reviewer wrote of this pathbreaking study: “a book like this is the despair of a reviewer. it is so chock full of good material that one cannot even summarize it in a review. the best advice to those interested in the subject, and everyone ought to be, is to get the book and read it . . .” a.m. kidd, book review, 11 calif. l. rev. 59 (1922). this advice remains true today. https://en.wikipedia.org/wiki/nlrb_v._jones_%26_laughlin_steel_corp. https://en.wikipedia.org/wiki/nlrb_v._jones_%26_laughlin_steel_corp. https://en.wikipedia.org/wiki/united_states_statutes_at_large https://legislink.org/us/stat-49-449 1094 colum. j. race & l. [vol. 14:1086 helped revolutionize law and social policy. frankfurter’s legacy of fighting for fair trials for unpopular defendants such as nicola sacco and bartolomeo vanzetti45 is an inspiration to many modern lawyers. indeed, i would argue frankfurter’s most important legacy was as the nation’s premier public interest lawyer for a quarter of a century. in this period, justice louis d. brandeis, who was known as “the people’s lawyer” before he went on the bench, called frankfurter “the most useful lawyer in the united states.”46 if he had never gone to the court, and continued in these activities, he would be remembered as one of the great figures in american law and worthy of serious scholarly attention. in these years frankfurter was able to assiduously ingratiate himself with powerful men who helped his career. after law school, he briefly worked at hornblower, byrne, miller, and potter, which made him the first jewish attorney to work at an elite “white shoe” wall street firm.47 the firm hired him because of his stunning record at harvard and on the strong recommendations from the harvard faculty.48 the fact that he had only one offer from a wall street firm, after graduating first in his class at harvard, illustrates the nature of antisemitism at the time. while this may not seem like a civil rights achievement today, it was clearly a breakthrough in 1907, when elite law firms did not hire jews.49 illustrative of the antisemitism and xenophobia of the time, while at hornblower, byrne, miller, and potter senior partners urged him to change his name,50 to hide his immigrant, and implicitly his jewish, roots. frankfurter rejected this advice. not surprisingly, frankfurter disliked private practice, and happily accepted a 25 per cent pay cut to join the staff of henry l. stimson, the new united states attorney for the southern district of new york.51 this was also pathbreaking in an environment where immigrants and jews were rarely seen. when theodore roosevelt did not run for reelection in 1908, stimpson went back to private practice, and frankfurter went with him.52 he was stimson’s campaign manager in his unsuccessful run for governor of new york in 1910 and worked as his assistant when stimson served as president william howard taft’s secretary of war.53 in 1912, frankfurter supported teddy roosevelt’s bull moose campaign for president, running 45 see infra pp. 1098-99. 46 urofsky, felix frankfurter, supra note 3 at 20. 47 simon, the antagonists, supra note 2, at 33-34. at this time there was only one jewish federal judge, jacob treiber, who was also the first jewish federal judge in u.s. history. he served on the eastern district of arkansas from 1900 to 1927. https://encyclopediaofarkansas.net/entries/jacob-trieber-26/. it would be another decade before a jew, benjamin n. cardozo, would serve on the new york court of appeals. 48 feldman, scorpions, supra note 13, at 7. 49 id. frankfurter graduated from the law school the same year theodore roosevelt chose oscar straus to be secretary of commerce, thus becoming the first to jew ever serve in a united states presidential cabinet. judah p. benjamin, a former senator, served in the confederate cabinet during the civil war. 50 urofsky, felix frankfurter, supra note 3, at 2. 51 id. at 2-3. 52 simon, the antagonists, supra note 2, at 35-36. 53 id. at 36-38. frankfurter would later play a key role in stimson being brought back as secretary of war under franklin d. roosevelt. see discussion of this at infra note 340 . 2024] the tragedy of felix frankfurter 1095 against taft. despite working against taft’s reelection, frankfurter retained his position in taft’s war department.54 after both taft and roosevelt lost, frankfurter remained in the war department under woodrow wilson until june 1914, when he became the first full-time jewish faculty member at harvard law school.55 this short history highlights frankfurter’s political adroitness. he was able to stay in the administration while campaigning against the sitting president, and then remained in the next administration, whose election he had also opposed. at harvard law school, frankfurter taught, wrote, and actively participated in progressive causes. working with herbert croly and walter lippman, he was a co-founder of the new republic.56 while declining to be officially on the masthead, “he in essence became a fourth editor, writing numerous pieces and often sitting in on editorial meetings.”57 he published unsigned pieces, often praising his hero, justice oliver wendell holmes jr., and supporting the supreme court nomination of his mentor, louis d. brandeis.58 frankfurter would follow this pattern throughout his life— quietly, secretly, or anonymously advocating on public issues while keeping his name out of the limelight. some of this was clearly strategic, such as his admonition during the brandeis confirmation fight “that no jews should make the slightest peep about a race issue,” by which he meant brandeis’s judaism.59 but frankfurter’s penchant for secrecy went beyond strategy. he seemed to relish being behind the scenes, pulling strings, maneuvering, and constantly pushing his friends and favorite former students into government positions. frankfurter then relied on these protégés for information about pending policies and inside information. even after going on the court, he used them to advise and lobby administration officials and the president for his favorite causes.60 as i discuss below, most legal scholars and political commentators think it is inappropriate for a sitting justice to be actively involved in political machinations and talking constantly with people in the executive branch, including the president himself. frankfurter, however, never paused for a moment to consider the ethics of his behavior. it is worth noting, however, that he never sought to line his own pockets or accept valuable presents and vacations while on the bench. before the united states entered world war i, frankfurter joined the u.s. army reserves as a major in the judge advocate general’s (jag) 54 simon, the antagonists, 40. 55 feldman, scorpions, supra note 13, at 11. many scholars (such as feldman) assert, incorrectly, that frankfurter was “the first jewish professor at harvard law school.” id. in fact, louis brandeis taught evidence at harvard in 1881, with an offer directly from harvard’s president, charles w. eliot. the following year, dean christopher columbus langdell, at the urging of the law faculty, offered brandeis a full-time position as an assistant professor, but brandeis declined because he preferred practice. melvin i. urofsky, louis d. brandeis: a life 79, 80-81 (2009). 56 urofsky, felix frankfurter, supra note 3, at 8; simon, the antagonists, supra note 2, at 114. 57 urofsky, felix frankfurter, supra note 3, at 8; simon, the antagonists, supra note 2, at 114. 58 urofsky, felix frankfurter, supra note 3, at 8; snyder, supra note 4, at 72. 59 snyder, supra note 4, at 72. 60 id. at 219-30. 1096 colum. j. race & l. [vol. 14:1086 corps.61 when the united states entered the war in 1917, frankfurter returned to washington as a special assistant to secretary of war newton baker.62 this was one of his finest hours.63 as the army’s judge advocate general, he supervised court-martials, trying to ensure fairness and due process.64 as the head of the war labor policies board, he established fair wages, decent working conditions (including an eight-hour day), and limited the use of child labor in defense industries.65 with an uncanny ability to befriend important (or soon-to-be important) people, frankfurter became reacquainted with franklin roosevelt, the assistant secretary of the navy, who he had met a decade before when he worked on wall street. they developed a relationship which would eventually lead to frankfurter’s supreme court seat.66 in 1918, frankfurter went to europe in an ultimately failed attempt to negotiate a separate peace with the ottoman empire.67 while there, he also worked unsuccessfully to establish a jewish state in palestine.68 after the war, he attended the paris peace conference at the request of the world zionist leader chaim weizmann and met with saudi arabia’s prince faisal and col. t.e. lawrence (a.k.a. lawrence of arabia).69 frankfurter believed he had secured a peaceful future for jews and arabs in palestine, but of course he was either overly optimistic or naïve.70 he conferred with brandeis, who met with him in paris before the justice went on to palestine and egypt.71 meanwhile, frankfurter visited impoverished jewish communities in poland where he was appalled at the “systematic, pervasive anti-semitism.”72 frankfurter never expressed interest in his jewish heritage and abandoned religious practice very early in life, but at this time he was sensitive to the oppression of jews in eastern europe and in the 1930s would express concerns for the safety of jews in nazi germany.73 as a justice he was sometimes hostile to jewish religious 61 snyder, supra note 4, at 84-85, says this took place in 1916. 62 id. 63 urofsky, felix frankfurter, supra note 3, at 10-16. 64 snyder, supra note 4, at 84-85, 84-104. 65 id. at 84-93. 66 snyder, supra note 4, at 98-100. they were in “periodic contact” in the early 1920s, when fdr was struck down with polio, but after fdr became governor of new york in 1928 he increasingly sought frankfurter’s advice. urofsky, felix frankfurter, supra note 3, at 35-37. 67 snyder, supra note 4, at 104-05. 68 urofsky, felix frankfurter, supra note 3 at 16-19. 69id.; simon, the antagonists, supra note 2, at 21-23. prince faisal (also spelled feisal) was born in mecca in 1885 and was king faisal i of iraq from 1921 until his death in 1933. faisal i: king of iraq, brittanica, https://www.britannica.com/biography/faisal-i (last accessed mar. 9, 2024). 70 faisal i: king of iraq, brittanica, https://www.britannica.com/biography/faisali (last accessed mar. 9, 2024). faisal sent frankfurter a letter asserting that zionist aspirations were “moderate and proper,” and promised “we will wish the jews a most hearty welcome home,” that is to palestine. simon, the antagonists, supra note 2, at 23. but in the end, nothing positive came of this meeting or the exchange of letters between the future supreme court justice and the future king of iraq. 71 on brandeis in palestine, see phillippa strum, louis d. brandeis: justice for the people 240-47; 277-80 (1984). 72 snyder, supra note 4, at 115. 73 burt, two jewish justices, supra note 13, at 38-39; feldman, scorpions, supra note 13, at 6. in planning for his death, frankfurter insisted that no rabbi be at a service for him, but did ask that a former student, lewis henkin, who was a practicing https://www.britannica.com/biography/faisal-i https://www.britannica.com/biography/faisal-i https://www.britannica.com/biography/faisal-i 2024] the tragedy of felix frankfurter 1097 liberty (such as in the sunday closing cases).74 however, he worked closely with brandeis on the zionist cause from world war i until his mentor died in 1941. after the united nations voted to partition palestine, frankfurter quietly lobbied for u.s. recognition of the new nation of israel.75 during the war, frankfurter also mediated labor strikes and investigated the barbaric treatment of more than 1,100 peaceful striking miners in bisbee, arizona.76 the local sheriff, with some 2,000 deputies, rounded up the majority of the strikers and shipped them in boxcars to columbus, new mexico, on the mexican border. the law enforcement officials denied the workers food, water, and shelter for two days.77 most of the strikers were immigrants—mexicans, slavs, and finns were the largest groups—but american-born citizens constituted more than 15 per cent of those deported. at the time anti-immigrant sentiment was a particular kind of racism.78 frankfurter’s report castigated the sheriff and other officials, asserting that their behavior was “wholly illegal and without authority in law, state or federal.”79 in this period he also investigated the murder conviction and death sentence of labor activist tom mooney for a bombing in san francisco. frankfurter helped expose that the conviction was based on perjured testimony.80 because of frankfurter’s work, president wilson persuaded california’s governor to commute mooney’s sentence to life in prison.81 in 1935, the supreme court declined to hear mooney’s appeal because he had failed to exhaust all his orthodox jew, say something. he explained, that henkin was “my only close personal friend who is also a practicing, orthodox jew. he knows hebrew perfectly and will know exactly what to say. i came into this world a jew and although i did not live my life entirely as a jew, i think it is fitting that i should leave as a jew.” urofsky, felix frankfurter, supra note 3 at 174. like much of his life, even in death frankfurter was disingenuous and somewhat hypocritical. his opinion in west virginia board of education v. barnette, his refusal to even discuss the holocaust with fdr, and his opinion in the sunday closing cases illustrates that he was often hostile to civil liberties and civil rights of jews. it was not that he “did not live” his life as a jew, but he often acted on the court in ways that were hostile to jews. 74 see discussion of these cases, infra at note 71. 75 snyder, supra note 4, at 105-116; 506-07. 76 for a long discussion of these events, see parrish, felix frankfurter and his times, supra note 3, at 87-101. also, urofsky, felix frankfurter, supra note 3, at 10-14. 77 parrish, felix frankfurter, supra note 13, at 90. 78 id. while the majority of the strikers were probably from europe, id. at 90 there was some fear that the strike was tied the revolutionary activities of francisco “pancho” villa in mexico. michael daly hawkins, the bisbee deportation: there will be ore, 31 w. legal hist. 91 (2020-21). a list of 900 deportees shows that mexicans may have been the largest single group of deportees, followed by u.s. citizens, but the combined total of finns and people from what later became yugoslavia exceed either u.s.-born citizens or mexicans. deportees, bisbee deportation of 1917, https://wayback.archiveit.org/8851/20171217204532/http://www.library.arizona.edu/exhibits/bisbee/deportees/index .html (last visited feb. 21, 2024). about 15 per cent of those deported were american-born citizens, whose ancestry, based on their last names, appears to be from the british isles and northern europe. 79 snyder, supra note 4, at 91. 80 urofsky, felix frankfurter, supra note 3, at 11-12. 81 snyder, supra note 4, at 95. https://nam02.safelinks.protection.outlook.com/?url=https%3a%2f%2fwayback.archive-it.org%2f8851%2f20171217204532%2fhttp%3a%2fwww.library.arizona.edu%2fexhibits%2fbisbee%2fdeportees%2findex.html&data=05%7c02%7cpaul.finkelman%40marquette.edu%7cfa1b36258c234b6236d308dc492508ba%7cabe32f68c72d420db5bd750c63a268e4%7c0%7c0%7c638465670777729464%7cunknown%7ctwfpbgzsb3d8eyjwijoimc4wljawmdailcjqijoiv2lumziilcjbtii6ik1hawwilcjxvci6mn0%3d%7c0%7c%7c%7c&sdata=ytdanls25%2b%2fnj%2fzu1yezyvnxvpe3udxlg7lsflleide%3d&reserved=0 https://nam02.safelinks.protection.outlook.com/?url=https%3a%2f%2fwayback.archive-it.org%2f8851%2f20171217204532%2fhttp%3a%2fwww.library.arizona.edu%2fexhibits%2fbisbee%2fdeportees%2findex.html&data=05%7c02%7cpaul.finkelman%40marquette.edu%7cfa1b36258c234b6236d308dc492508ba%7cabe32f68c72d420db5bd750c63a268e4%7c0%7c0%7c638465670777729464%7cunknown%7ctwfpbgzsb3d8eyjwijoimc4wljawmdailcjqijoiv2lumziilcjbtii6ik1hawwilcjxvci6mn0%3d%7c0%7c%7c%7c&sdata=ytdanls25%2b%2fnj%2fzu1yezyvnxvpe3udxlg7lsflleide%3d&reserved=0 https://nam02.safelinks.protection.outlook.com/?url=https%3a%2f%2fwayback.archive-it.org%2f8851%2f20171217204532%2fhttp%3a%2fwww.library.arizona.edu%2fexhibits%2fbisbee%2fdeportees%2findex.html&data=05%7c02%7cpaul.finkelman%40marquette.edu%7cfa1b36258c234b6236d308dc492508ba%7cabe32f68c72d420db5bd750c63a268e4%7c0%7c0%7c638465670777729464%7cunknown%7ctwfpbgzsb3d8eyjwijoimc4wljawmdailcjqijoiv2lumziilcjbtii6ik1hawwilcjxvci6mn0%3d%7c0%7c%7c%7c&sdata=ytdanls25%2b%2fnj%2fzu1yezyvnxvpe3udxlg7lsflleide%3d&reserved=0 1098 colum. j. race & l. [vol. 14:1086 state remedies.82 in 1939 governor culbert olson, a liberal democrat, would pardon mooney.83 frankfurter’s powerful report on the mistreatment of the bisbee strikers and the perjury in the mooney case had its costs. the aging theodore roosevelt, once a friend and ally who frankfurter had actively campaigned for, publicly called him a bolshevik for his defense of mooney and because frankfurter exposed that “the chief instigator of the [bisbee] deportation was arizona mine operator john c. greenway,” who had been one of teddy’s rough riders in cuba84 and “whose wife, isabella selmes, had long been a close friend of the roosevelt family.”85 roosevelt considered the strikers threats to the war effort, even though more than a third of them, including many non-citizen immigrants, were registered for the draft and ready to serve their country.86 but teddy roosevelt’s personal connections to greenway and his wife were more important to the former president than frankfurter’s longtime support for him or the fact the strikers posed no threat to the nation or the war effort. by this time teddy roosevelt “was a sad, jingoistic reactionary, a far cry from the inspiring” progressive of 1912.87 this surely helps explain roosevelt’s “vicious attacks” on frankfurter’s patriotism and calling him a bolshevik.88 the important unanswered question, at least in snyder’s comprehensive biography, is why frankfurter still had “faith in him,” and “believed the country needed roosevelt’s leadership.”89 what led frankfurter to crave the affirmation of roosevelt, after the ex-president so viciously defamed him, striking at his immigrant (and by implication jewish) heritage and calling him a bolshevik? what was it about frankfurter’s personality, or insecurity, that led to this behavior, and how did it affect his later career on the court? starting with frankfurter’s investigation of the bisbee deportations and the mooney case, conservatives, including the nowreactionary theodore roosevelt, began to think of frankfurter as the most dangerous man in america.90 it is easy to see why conservatives, supporters of segregation, nativists, and opponents of legal protections for workers, feared him. in 1920, frankfurter helped found the aclu and served on its board. he devoted enormous energy, albeit unsuccessfully, to save the lives of the italian immigrant anarchists nicola sacco and bartolomeo vanzetti, who had been convicted in an outrageously unfair trial for a murder that neither of them (or perhaps only one of them) likely committed.91 his strong 82 mooney v. holohan, 294 u.s. 103 (1935). 83 mooney pardoned; to dedicate life to the “common good;” absolved of guilt, new york times, january 8, 1939, cited in feldman, scorpions, supra note 13, at 438 n.23. 84 snyder, supra note 4, at 94. 85 urofsky, felix frankfurter, supra note 3, at 12. 86 id. at 94. 87 snyder, supra note 4, at 104. 88 id. 89 id. 90 snyder’s chapter 9 is titled “a dangerous man.” snyder, supra note 4, at 117. 91 feldman, scorpions, supra note 13, at 15-27. 2024] the tragedy of felix frankfurter 1099 commitment to fair trials and due process for labor activists and radicals, and his denunciation of the palmer raids and the red scare after world war i, gave frankfurter an unjustified reputation as a radical and a communist.92 he was neither, and was as anti-communist as anyone could be. his support for mccarthy-era suppression of freedom of speech would later underscore his deep hostility to communism.93 however, in some mccarthy-era cases he supported civil liberties involving alleged communists.94 despite his personal hostility to most of the goals of radicals, before he went on the court, frankfurter sometimes worked to insure they received fair trials. on the supreme court, he would courageously support a full review of the espionage convictions of ethel and julius rosenberg, not because he sympathized with their politics, but because their trials were unfair,95 just as he had worked to overturn the outrageously unfair convictions of sacco and vanzetti, whose anarchist politics he deplored. these failed attempts to save the lives of “radicals” illustrate frankfurter’s willingness to take unpopular positions as an activist lawyer and later, in some cases, as a justice. but they also may reflect a desire to be associated with famous cases and well-known defendants. he showed little concern with denying run-of-the-mill defendants protection from self-incrimination or trying them without providing them with counsel.96 before going on the court, frankfurter’s scholarship and advocacy for labor causes, improved race relations, and other pressing social issues made him a leading figure and advocate among progressives. he worked with the naacp on civil rights, argued supreme court cases to support minimum wages and maximum hours, and helped draft the norris-la guardia act, which was the first federal law to successfully protect organized labor.97 frankfurter’s impact on social policy from world war i to the 1930s illustrates his importance. as i noted above, justice louis brandeis, who mentored frankfurter, called him “the most useful lawyer in the united states.”98 92 simon, the antagonists, supra note 2, at 50-59. while defending radicals, he clearly was not sympathetic to most of their larger political goals. while never a fan of corporate wealth, he was hardly a socialist. id. at 14-15. 93 see, e.g., feiner v. new york, 340 u.s. 315 (1951); dennis v. united states, 341 u.s. 494 (1951); ullman v. united states, 350 u.s. 422 (1956); barenblatt v. united states, 360 u.s. 109 (1959); konigsberg v. state of california, 353 u.s. 252 (1957) (frankfurter, j. dissenting); and konigsberg v. state of california, 366 u.s. 36 (1961) (evidencing his votes upholding the suppression of communists and other radicals). 94 see alder v. board of education of the city of new york, 342 u.s. 45 (1952); sacher v. united states, 343 u.s. 1 (1952); rosenberg v. united states, 346 u.s. 273 (1953); peters v. hobby, 349 u.s. 341 (1955); pennsylvania v. nelson, 350 u.s. 497 (1956); slochower v. board of higher education of the city of new york, 350 u.s. 551 (1956); sweezy v. new hampshire, 350 u.s. 234 (1957); yates v. united states, 3454 u.s. 298 (1957); and kent v. dulles, 357 u.s. 116 (1958) (evidencing his support of civil liberties and due process for some alleged communists). 95 rosenberg v. united states, 346 u.s. 273 (1953), (frankfurter, j., dissenting). 96 see infra at notes 451-52 (discussing adamson v. california) and infra at note 204 (discussing betts v. brady). 97 an act to amend the judicial code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes, act of march 23, 1932, chapter 90, 72nd cong., 47 stat. 70. 98 urofsky, felix frankfurter, supra note 3, at 20. 1100 colum. j. race & l. [vol. 14:1086 at the same time, frankfurter increasingly showed a conservative—often reactionary—streak, opposing supreme court decisions protecting individual liberty and religious freedom. he privately denounced the court’s decision in meyer v. nebraska, overturning the conviction of robert t. meyer for teaching the german language in a private lutheran school in violation of a nebraska statute which prohibited teaching children any modern foreign language before the ninth grade.99 at the time, many lutherans used the german language bible translated by martin luther.100 in his biography of frankfurter, brad snyder praises frankfurter’s opposition to overturning nebraska’s repressive law for supporting “a prescient theory of limited judicial review.”101 it is not at all clear why frankfurter was “prescient” in opposing decisions to strike down truly repressive legislation aimed at minorities and immigrants. more prescient was brandeis, who joined the majority in meyer, and a month later explained to frankfurter that “fundamental rights” such as “education,” or “choice of profession” should “not be impaired or withdrawn except as judged by [the] ‘clear and present danger’ test.”102 it is hard to imagine how teaching children to read the bible in the language of their choice threated society in any way, much less created a “clear and present danger.” unfortunately, this was a moment when frankfurter failed to learn anything from his mentor. the law used to convict meyer was a classic form of racial,103 ethnic, and religious hatred and discrimination against german immigrants and german americans, who during and after world war i were demonized as “huns” and barbarians.104 as one professor at the university of nebraska explained, in language similar to the way many southerners described black people and many americans had described native americans, “the prussian” is “a moral imbecile, an arrested development, a savage in 99 snyder, supra note 4, at 138-39. meyer v. nebraska, 262 u.s. 390, 391 (1923). the law did allow teaching children biblical hebrew, biblical greek, and latin, which of course supported the religious liberty of jews, roman catholics, orthodox catholics, and some protestants, but emphatically not german lutherans. 100 paul finkelman, german victims and american oppressors: the cultural background and legacy of meyer v. nebraska, in law and the great plains 33, at 44, (ed. john r. wunder) (1996). 101 snyder, supra note 4, at 139. 102 brandeis to frankfurter, quoted in robert c. post, the taft court: making law for a divided nation, 1921-1930 (2024), 828-29. 103 it is worth noting that in this period ethnicity and religion were often combined with concepts of “race.” for example, the dictionary of races or peoples. reports of the immigration commission. senate document no. 662. 61st cong. 3rd. session. (1911), refers to people of european ancestry as being of different “races” such as “[t]he principal race or people of england,” (54), “[t]he principal race or people of france,” (61), “[t]hat section of the french race or people which lives in canada,” (63), “[t]he race or people whose mother tongue is german,” (64), “[h]he modern greek race,” (68), “the gypsy belongs to the aryan race,” (71), “[t]he race or people that originally spoke the hebrew language” (73) noting that “the hebrew is a mixed race, like all our immigrant races or peoples, although to a less degree than most” (73), [t]he principal race or people of ireland: the race which originally spoke irish,” (79), “[t]he race or people of italy,” noting that the “bureau of immigration divides this are into two groups, north italian and south italian,” (81). thus, people talked about the “german race” in wwi and when discussing immigration, there were references to such groups as the irish, italian, or jewish race. for example, see, noel ignatiev, how the irish became white (2009). 104 finkelman, german victims, supra note 100, at 43. https://www.routledge.com/search?author=noel%20ignatiev 2024] the tragedy of felix frankfurter 1101 civilization’s garb, and even the garb he has stolen. like the savage he is boastful and cunning. among the nations he is precisely what the type of moral imbecile but intellectually educated criminal is among individuals.”105 more succinctly, professor vernon kellogg, an evolutionary biologist and zoologist at stanford university, and the first permanent secretary of the national research council in washington, d.c. declared that all germans were “unclean.”106 several other states passed similar laws at this time.107 the court ruled seven to two that the nebraska statute violated the due process clause of the fourteenth amendment.108 frankfurter’s mentor justice brandeis was in the majority, but his hero holmes was not.109 frankfurter privately denounced the nebraska law as “uncivilized,”110 and apparently liked the outcome,111 but at the same time strenuously objected to the court overturning the law.112 in a preview of his anti-libertarian opinions on the court, he said he would have voted with holmes, arguing that the supreme court should not overturn state laws, no matter how much they repressed religious freedom, freedom of speech, or the right of parents to educate their children.113 brad snyder argues that frankfurter was “opposed to invoking the due process clause [of the fourteenth amendment] no matter how horrible or objectionable the law.”114 but surely such a cramped view of liberty was neither “prescient” nor admirable. this position was anachronistic, oppressive, bigoted, and destructive of civil liberties. brandeis in meyer and both holmes and brandeis in a number of other cases,115 and brandeis alone after holmes left the bench,116 embraced using the fourteenth amendment to strike down repressive state legislation, support freedom of speech, and reverse unfair criminal verdicts that denied people due process of law. frankfurter’s view of the role of the court and his rigid deference to state legislation meant that, in frankfurter’s view, it was constitutionally permissible, in the name of “democracy,” for the majority of the population to persecute a minority, as in the case of german lutherans in nebraska. 105 id. at 38. 106 id. during the war one german immigrant, robert prager, was lynched and many were tarred and feathered and physically attacked. id. at 34-39; see also paul murphy, world war i and the origins of civil liberties in the united states (1979) 119-24 and 128-32 for a list of vigilante attacks on german immigrants during the war, when germans were considered to be a “dangerous race.” 107 for a full history of these laws and the surrounding litigation, see william g. ross, forging new freedoms: nativism, education, and the constitution, 1917-1927 (1994). 108 meyer v. nebraska, 262 u.s. 390, 391 (1923). 109 id. 110 snyder, supra note 4, at 138-39. 111 walker, in defense of american liberties, supra note 3 at 81. 112 snyder, supra note 4 at 138-39. 113 id. 114 id. at 139. 115 e.g., pierce v. society of sisters, 268 u.s. 510 (1925); gitlow v. new york, 268 u.s. 652, 672 (1925) (holmes and brandies, jj. dissenting); whitney v. california, 274 u.s. 357, 372 (1927) (brandeis and holmes, jj. concurring); stromberg v. california, 283 u.s. 359 (1931); near v. minnesota, 283 u.s. 697 (1931). 116 nixon v. condon, 286 u.s. 73 (1932); powell v. alabama, 287 u.s. 45 (1932); patterson v. alabama, 294 u.s. 600 (1935); herndon v. georgia, 295 u.s. 441 (1935); herndon v. lowry, 301 u.s. 247 (1937) 1102 colum. j. race & l. [vol. 14:1086 the only explanation, which is indeed grim, is that frankfurter stood for the “tyranny of the majority” over the fundamental rights of discreet minorities and believed that such tyranny was good for the nation and the constitution. it is quite frankly bizarre that any modern scholar would praise frankfurter’s support of this sort of religious persecution or defend his rigid constitutional theory that led him to this position. two years after meyer, in an unsigned new republic essay, frankfurter denounced the court’s unanimous decision in pierce v. society of sisters,117 striking down oregon’s ku klux klan-inspired law prohibiting any parochial schools or private schools from operating in the state.118 as in meyer’s case, frankfurter was intellectually inflexible and out-of-touch with reality, unlike his hero holmes and his mentor brandeis, both of whom voted to strike down the oregon law. the oregon law was certainly the result of a “democratic” process. oregon’s overwhelmingly white protestant majority supported a referendum to implement the law, which was aimed at catholics and immigrants.119 claiming he did not like the law, and even admitting that the results in meyer and pierce were “just cause for rejoicing,”120 frankfurter argued that it was anti-democratic for the court to strike down state laws because it interfered with the will of the elected legislature.121 frankfurter further claimed that it was dangerous to rely on the court to protect liberty because the same doctrines that preserved liberty in meyer and pierce would “be used as a sword against what frankfurter viewed as economically progressive legislation.”122 he believed that whatever might have been gained by both decisions was not worth the cost to his peculiar notion of “democracy.”123 but this begs the question why frankfurter believed that the constitution did not in fact protect minorities from the bigotry of the majority. here and throughout his career, we see frankfurter’s stubborn inability to distinguish between laws that 117 pierce v. society of sisters, 268 u.s. 510 (1925). snyder, supra note 4, at 15758. see also ross, forging new freedoms, supra note 107. 118 in the 1920s a reinvigorated ku klux klan, often called the “second klan,” emerged in the north (and the south) focusing mostly on opposition to catholics, jews, and immigration from anywhere except the british isles and northern europe, and hatred for blacks. the kkk was heavily involved in the election of governor walter pierce of oregon, who supported the kkk’s slogan of “100 percent americanism.” paula abrams, cross purposes: pierce v. society of sisters and the struggle over compulsory public education (2009). david a. horowitz, social morality and personal revitalization: oregon's ku klux klan in the 1920's, 90 or. hist. q. 365 (1989); paul m. holsinger, the oregon school bill controversy, 1922-1925, 37 pac. hist. r. 327-340 (1968); nancy maclean, behind the mask of chivalry: the making of the second ku klux klan (1995); linda gordon, the second coming of the kkk (2017); kenneth t. jackson, the ku klux klan in the city, 1915-1930 (1992). david a. horowitz, inside the klavern: the secret history of a ku klux klan of the 1920's (1999) and robert r. mccoy, the paradox of oregon's progressive politics: the political career of walter marcus pierce, 110 or. hist. q. 390 (2009) argue that pierce was in fact a member of the klan. 119 in 1930 oregon had 938,597 white residents and 15,189 non-white residents. campbell gibson & kay jung, historical census statistics on population totals by race, 1790 to 1990, and by hispanic origin, 1970 to 1990, for the united states, regions, divisions, and states table 52-oregon (u.s. census bureau, working paper no. 56) 120 post, the taft court, supra note 102, at 860 n.107. 121 ross, forging new freedoms, supra note 107, at 195. 122 id. at 196. 123 snyder, supra note 4, at 157. 2024] the tragedy of felix frankfurter 1103 oppressed minorities by denying “liberty” and economic regulations, which applied to everyone. frankfurter also seemed oblivious to the reality that if the court would not protect fundamental liberties, as it did in meyer and pierce, there was no hope that such liberties could be vindicated. frankfurter’s belief in “democracy” was surely misplaced, especially in this period. the repressive laws at issue in nebraska and oregon had been properly passed by democratically elected legislators and signed by democratically elected governors. frankfurter’s commitment to “democracy” and his opposition to judicially protected liberties rings hollow in the face of democratically adopted laws that targeted minorities for their religion, ethnicity, or race. frankfurter does not seem to have understood the problem of the “tyranny of the majority”—the problem that without constitutional limitations, the majority of the population can easily run roughshod over minorities. these issues were not new. in the nineteenth century both alexis de tocqueville124 and the great english philosopher of freedom of expression, john stuart mill, had eloquently described the problem.125 but frankfurter need not have used a french scholar or an english philosopher to understand this. he could have cited james madison’s arguments that in a republic, threats to liberty would emanate from the popularly elected legislature, where a determined majority would simply ignore the civil liberties of the minority.126 or he could have learned from madison’s federalist 10 that threats to liberty came when “a number of citizens, whether amounting to a majority or minority of the whole” were “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens.”127 most importantly, he might easily have turned to thomas jefferson’s brilliant single-sentence explanation of the need to support the will of the majority (the essence of democracy) while protecting the basic liberties of the minority: “all, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”128 throughout his career, in private conversation, essays, and on the court, frankfurter would wring his hands about unjust and uncivilized laws—but then proceed to explain why the court should refrain from stopping such oppression.129 similarly, while he claimed to oppose the 124 1 alexis de tocqueville, democracy in america (1835) and 2 alexis de tocqueville, democracy in america (1840). 125 john stuart mill, on liberty (1859). 126 “madison in the virginia ratification convention," reprinted in 11 the papers of james madison 130 (ed. robert rutland) (1977). see also paul finkelman, james madison and the bill of rights: a reluctant paternity, 1990 sup. ct. rev. 301-47. 127 federalist no. 10, 10 papers of james madison 264, 269. 128 thomas jefferson, first inaugural address, march 4, 1801, available at https://founders.archives.gov/documents/jefferson/01-33-02-0116-0004 (last visited mar. 17, 2024). 129 for an example of this while on the court, see frankfurter’s majority opinion in minersville board of education v. gobitis, 310 u.s. 586 (1940) (supporting the expulsion of students who refused to salute the flag because it violated their religious beliefs, and upholding legal sanctions against their parents); his angry dissent in west virginia board 1104 colum. j. race & l. [vol. 14:1086 death penalty, he provided the fifth vote that led to the electrocution of willie francis in louisiana.130 he felt compelled to write a concurrence to explain his vote, as he did so often. frankfurter later told learned hand that he found the francis execution “barbaric,” but insisted that due process did not require a different decision. francis, a black teenager, was convicted by an all-white jury of murdering a white businessman when he was sixteen. his court appointed lawyers called no witnesses, offered no evidence, made no motions, and did not challenge a confession by francis that many commentators believed was coerced. evidence in the case was mishandled. the police who arrested francis claimed he had the victim’s wallet at the time, but the prosecution never produced the wallet, which apparently disappeared (assuming it ever existed). at age seventeen louisiana sent francis to the electric chair, but the execution malfunctioned. when louisiana moved to send him to the electric chair a second time, his new attorney argued executing him a second time constituted double jeopardy and cruel and usual punishment.131 four justices agreed with the argument, but frankfurter, the former aclu attorney, provided the fifth vote for execution. in claiming the execution was barbaric, frankfurter could once again privately protest the horrendous outcome of this case, proving (at least to himself) that he was really in favor of justice, while voting for a barbaric outcome, even though four other justices thought due process should lead to a different result. for frankfurter, fidelity to an outdated, rigid, and anachronistic legal theory mattered far more than a black life in segregated louisiana. but, as if to salve his conscience, frankfurter urged the governor of the rigidly segregated former confederate state to commute francis’s sentence.132 that frankfurter believed this tactic would have worked suggested he was either unrealistically naïve or cynical. that he thought it was even appropriate for a sitting justice to lobby a state governor illustrates frankfurter’s lack of judicial ethics as well as his absurd hubris. this improbable result did not happen, and francis was executed. put another way, when in the position to prevent a grotesque miscarriage of justice, frankfurter voted with the majority to uphold the injustice and the execution. with the power of his vote, in a 5-4 decision, frankfurter refused to act to save francis’s life. but he was able to salve of education v. barnette, 319 u.s. 624, 646 (1943) (frankfurter, j. dissenting) (protesting a reversal of his position in gobitis and arguing for the constitutionality of new laws directly aimed at jehovah’s witnesses); and his massive concurrence in mcgowan v. maryland, 366 u.s. 420, 459 (1961) (frankfurter, j. concurring and appendix i, 543-550; and appendix ii, 551-559) (justifying laws discriminating against religious jews in a variety of ways). similarly, while he claimed to oppose the death penalty, he provided the fifth vote that led to the electrocution of willie francis, in louisiana. louisiana ex rel. francis v. resweber, 329 u.s. 459 (1947). see also urofsky, felix frankfurter, supra note 3 at 154-55. frankfurter insisted that due process did not require a different decision. for frankfurter, fidelity to an outdated, ridged, and anachronistic legal theory mattered far more than black lives in segregated louisiana. 130 louisiana ex rel. francis v. resweber, 329 u.s. 459 (1947). for details of the case see the dissent in this case by justice burton, 329 u.s. 459, 480. see also urofsky, felix frankfurter, supra note 3, at 154-55. 131 for a full history of the case, see arthur s. miller and jeffrey bowman, death by installments: the ordeal of willie francis (1988). 132 snyder, supra note 4, at 468-87. 2024] the tragedy of felix frankfurter 1105 his conscience by an improper appeal to a governor who could, and did, ignore him. in his biography of frankfurter, snyder explains the francis case as an example of frankfurter’s “lifelong reluctance to invoke the fourteenth amendment’s due process clause to interfere with state political process.”133 but in fact, despite snyder’s lame defense of frankfurter, this was not about the “political process” in louisiana. it was about the judicial process. indeed, by writing to the governor of louisiana frankfurter was interfering (arguably improperly) in the political process. furthermore, by failing to use the fourteenth amendment in this case, frankfurter demonstrated that as both a scholar and a justice, he apparently missed the history of the fourteenth amendment, adopted after the civil war to prevent the states from denying due process and equal protection of the laws to all people in america, and to reverse the holding in dred scott v. sandford that african americans could never be citizens of the united states and under the constitution they “had no rights which the white man was bound to respect.”134 although almost no frankfurter scholars discuss it,135 it is worth remembering that before he went on the court, frankfurter had written admiringly of chief justice roger b. taney,136 praising his jurisprudence while failing to seriously examine dred scott137 and his many other proslavery and racist decisions.138 snyder notes that william coleman, who was frankfurter’s clerk and the first black clerk in the court’s history, argued with the justice about his praise of taney,139 but snyder never considers whether frankfurter’s refusal to see the fourteenth amendment as a vehicle for the protection of racial, religious, and political minorities was in part a function of his unabashed admiration for the person generally considered to be the worst and most racist justice in our history. frankfurter, who had once been a “liberal” and a civil libertarian, consistently supported allowing state governments, and the federal government in the japanese internment cases, to oppress religious, racial, and ethnic minorities. snyder asserts that “frankfurter understood the need to protect free speech, fair criminal trials, and racial and religious minorities.”140 but, as in meyer and pierce, even before he was on the court, and in many cases when he was on the court, the evidence actually demonstrates the opposite.141 with the exception of his support for black civil rights (and even here he is inconsistent), frankfurter’s record on these issues is, quite frankly, appalling. his reaction to meyer and pierce, while he was teaching at harvard, was simply an appetizer to his often-repressive jurisprudence 133 id. at 486. 134 dred scott v. sandford, 60 (19 how.) u.s. 393, 407 (1857). 135 none of the frankfurter biographies i have cited here do, for example. 136 felix frankfurter, “taney and the commerce clause,” 49 har. l. rev. 1286 (1936). 137 dred scott v. sandford, 60 u.s. (19 how.) 393 (1857). 138 paul finkelman, supreme injustice: slavery in the nation’s highest court (2018) and paul finkelman, “hooted down the page of history”: reconsidering the greatness of chief justice taney, 1994 j. sup. ct. hist. 83-102 (1995). 139 snyder, supra note 4, at 523. 140 id. at 139. 141 id. at 157-58. 1106 colum. j. race & l. [vol. 14:1086 while on the court. these cases demonstrate frankfurter’s support of religious persecution, antisemitic laws, federal discrimination based on race, discriminatory and murderous police practices, state sponsored segregation, denial of fair trials for indigent defendants, and state voting laws that denied equal representation to a majority of the population.142 ironically, when he was on the court, those who valued fundamental liberties might have agreed with the inter-war conservatives who asserted that frankfurter was a “dangerous man,”143 but of course for very different reasons. the thousands of jehovah’s witnesses booted out of public schools after frankfurter’s gobitis opinion144 or the 120,000 japanese americans sent to concentration camps, with frankfurter’s support,145 surely knew how dangerous he actually was. iii. frankfurter’s protégés and the problem of judicial ethics after franklin d. roosevelt’s presidential nomination and his election, frankfurter became a key insider, advising fdr, helping draft legislation, and writing (sometimes anonymously) essays to support the new deal.146 however, as melvin urofsky notes, it is “manifestly false” that “frankfurter's ideas governed early new deal policy,” in part because shortly after fdr’s inauguration frankfurter went to oxford university for a year.147 while he was at oxford, frankfurter continued to give the president advice by mail.148 when he returned from england he was a key advisor to fdr, who used him as a sounding board. in this period frankfurter backed all of fdr’s policies, including the court packing plan, which in some ways made sense, but was also somewhat ill-conceived and poorly rolled out to the american people.149 before leaving for oxford he had declined fdr’s offer to make him solicitor general of the united states, even though the president said it would be a stepping stone to the supreme court.150 frankfurter believed that he could better serve his friend “frank,” as he called him when they were alone, in a less conspicuous and unofficial role as an “outsider-insider.”151 fdr was surprised by this rejection, and called frankfurter “an independent pig,” and then explained “that’s one reason i like you.”152 even while he was at oxford, frankfurter continued give the president advice.153 as an unofficial presidential advisor and a self-appointed lobbyist and talent scout, frankfurter helped place at least sixty of his students and 142 see infra, parts iii, v, and vii. 143 this is the title of snyder’s chapter 9, describing conservative reactions to frankfurter’s legal activism from world war i until the 1930s. snyder, supra note 4 at 117. 144 for a discussion of gobitis, see infra at part v., section a . 145 korematsu v. united states, 323 u.s.214, 224 (1944) (frankfurter, j., concurring). 146 snyder, supra note 4, at 282-309; urofsky, felix frankfurter, supra note 3, at 35-6. 147 urofsky, felix frankfurter, supra note 3, at 36-7. 148 id. at 37. 149 id. at 40-44. 150 id. at 36; snyder, supra note 4, at 215-18. 151 urofsky, felix frankfurter, supra note 3, at 36. 152 id. 153 id. at 37. 2024] the tragedy of felix frankfurter 1107 friends, sometimes known as the “happy hotdogs”—a play on frankfurter’s first and last name—in one new deal agency after another.154 the list of frankfurter’s protégés in the administration is “staggering.”155 fortune magazine called him “the most famous legal employment service in america.”156 with direct access to the president, and connections to many others in the administration, a word from frankfurter easily led to a job offer. snyder asserts that frankfurter’s “eye for talent was second to none,”157 although as i suggest below, some of his choices proved very problematic. most of those he helped place in the federal government had been on the harvard law review, clerked for justices holmes or brandeis or federal judges julian mack and learned hand, and entered private practice until frankfurter recruited them for government service.158 some ended up at the highest levels of american politics, such as the future secretary of state dean acheson. frankfurter recommended archibald macleish (the lawyer-poet) to be the librarian of congress (1939-44). later, as assistant secretary of state, macleish helped create the precursor of the central intelligence agency. nathan margold, william hastie, and charles e. wyzanski, jr. served in numerous positions before becoming federal judges. frankfurter’s former students, protégés, and friends served in subcabinet positions (or their equivalent) at the departments of state, justice, interior, labor, and commerce.159 frankfurter protégés benjamin v. cohen, thomas corcoran, and joseph l. rauh, jr. were part of fdr’s “brain trust.” the chairs of both the tennessee valley authority (david lilienthal) and the securities and exchange commission (james m. landis) had been frankfurter’s students. a number of these young lawyers, including cohen, wyzanski, rauh, lilienthal, and margold, were jewish, which infuriated isolationists, assorted anti-semites, and some conservatives. in an age when major law firms usually hired white protestants who were born in the united states, the federal government, with an endorsement from frankfurter, offered more equal opportunities. with frankfurter’s help, his former student william hastie would become the first african american federal judge.160 along with his former students, many of frankfurter’s law clerks would help shape american politics and law. his clerk william t. coleman was the first african american to hold that position.161 coleman’s co-clerk that year, elliot richardson, later served with great integrity as attorney general during watergate, playing a key role in saving the nation by standing up to richard nixon’s attempt to corrupt our legal system for 154 id. at 36. snyder, supra note 4, at 219-230, chapter 15, titled “happy hot dogs.” 155 urofsky, felix frankfurter, supra note 3, at 37. 156 id. 157 id. at 229, 224. 158 those listed in this paragraph and the following two paragraphs are discussed in urofsky, felix frankfurter, supra note 3, at 36-40 and in snyder, supra note 4, at 219-230. 159 urofsky, felix frankfurter, supra note 3, at 37. 160 snyder, supra note 4, at 151. 161 id. at 523. later, as secretary of transportation, he was the second black man to serve in a presidential cabinet. 1108 colum. j. race & l. [vol. 14:1086 political gain. these students and clerks are key to the subtitle of snyder’s biography, “making the liberal establishment.”162 when he went on the court, frankfurter gave his former harvard colleague al sacks “carte blanche power to select his clerks,”163 but he rejected sacks’s selection of ruth bader ginsburg.164 frankfurter claimed this was because he had recently had a heart attack and did not want to burden mrs. ginsburg, as he referred to her.165 he could have a black clerk, but not a female clerk. frankfurter, perhaps unsurprisingly, wrote for the court upholding a michigan law that denied a woman the right to work in a bar, unless it was owned by her father or her husband.166 some of frankfurter’s protégés were problematic and serve as a caution for understanding the justice’s judgment and ethics. a few of frankfurter’s went to federal prison, including alger hiss for perjury, edward prichard for election fraud, and james m. landis for tax evasion. his relationship with his former students after he went on the bench is also problematic. frankfurter’s former student john mccloy, as assistant secretary of war, was the leading policy maker in planning and implementing the internment of japanese americans.167 he deflected discussion on civil liberties to avoid a disagreement with attorney general francis biddle, who objected to denying civil liberties to american citizens.168 but when a justice department lawyer questioned the constitutionality of incarcerating u.s. citizens who had never been charge with a crime, much less convicted of one, mccloy declared, “the constitution is just a scrap of paper to me.”169 we can only wonder what professor frankfurter taught him about the constitution. interior secretary harold ickes wrote in his diary that many people thought mccloy was “more or less inclined to be a fascist.”170 apparently, frankfurter’s “eye for talent” did not catch that flaw. when the court heard the japanese internment cases, hirabayashi v. united states171 and 162 id. (giving the full title of the book, which ends with “the making of the liberal establishment.”). 163 id. at 663. 164 id. 165 id. 166 goesaert v. cleary, 335 u.s 464 (1948). in a rare criticism of frankfurter, snyder rightly finds his opinion “indefensible,” noting that it would not “be the last time that frankfurter’s gender bias resulted in a serious error in professional judgment.” snyder, supra note 4, at 522. 167 roger daniels, the decision to relocate the japanese americans 35 (1975). 168 cliff sloan, the court at war: fdr, his justices, and the world they made (2023) 178. 169 daniels, decision to relocate, supra note 167, at 35; see also roger daniels, concentration camps usa: japanese americans and world war ii 55-56 (1971). mccloy would later admit his errors but at the same time “tried to justify them in a calmer time when hindsight ought to have conferred on [him] greater wisdom.” wiecek, birth of the modern constitution, supra note 2, at 339. 170 robert sherrill, the real mccloy: the chairman: john j. mccloy; the making of the american establishment, la times (april 19, 1992), https://www.latimes.com/archives/la-xpm-1992-04-19-bk-588-story.html. ickes, a member of the aclu, is described as the aclu’s staunchest friend” in fdr’s administration. walker, in defense of american liberties, supra note 3, at 97. 171 hirabayashi v. united states, 320 u.s. 81 (1943). https://www.latimes.com/archives/la-xpm-1992-04-19-bk-588-story.html 2024] the tragedy of felix frankfurter 1109 korematsu v. united states,172 mccloy was heavily involved in suppressing a memo from a “naval intelligence official” showing that it “was entirely feasible to separate the loyal from the disloyal” in the japanese american community and “that wholesale restrictions against those of japanese descent were neither appropriate nor justified.”173 mccloy also helped suppress a report from the senior army commander in california, lt. general john l. dewitt, that the push for the internment was mostly about racial hatred of the japanese.174 in 1981, mccloy would admit before the commission on wartime relocation and internment of civilians that the internment had not been about military necessity or fear of sabotage by japanese americans, but was the result of the “surprise attack” that started the war and was implemented “in the way of retribution for the attack that was made on pearl harbor.”175 in other words, mccloy admitted that in implementing and defending the internment he misled the court and the nation in order to incarcerate in concentration camps some 120,000 american citizens and their elderly immigrant relatives as an act of revenge for something done by people from another county. he sought revenge against these completely innocent americans because of their race and shared ethnicity with the people from another country who had attacked the united states. as one scholar recently noted, the dishonesty of frankfurter’s protégé, who the justice was quietly advising, led to a “historic and shameful failure by the best and brightest of the american legal establishment,” which included mccloy who “orchestrated the withholding [from the court] of critical information known the government.”176 when jewish americans pleaded with mccloy to authorize the bombing of the gas chambers or crematoria at auschwitz, or the railroads leading to the death camp, to slow down the mass murder of jews, he categorically refused to consider it, dishonestly asserting that united states bombers could not reach that location, when in fact they could.177 he furthermore, absurdly, argued “that bombing auschwitz would inflict worse punishment on the jews interned there, jews whom he knew, were destined for the gas chambers.”178 as united states high commissioner in germany from 1949 to 1952, mccloy pardoned scores of war criminals (including some mass murderers), restored property to german 172 korematsu v. united states, 323 u.s.214, 224 (1944) (frankfurter, j., concurring). 173 sloan, court at war, supra note 168, at 194, 197-98. 174 id. at 301-03. 175 mccloy quoted in peter irons, justice at war 353 (1983). 176 sloan, court at war supra note 168, at 301-03. 177 on the ability to reach auschwitz, see, operation frantic: shuttle raids to the soviet union, nat. museum of the u.s. air force, https://www.nationalmuseum.af.mil/visit/museum-exhibits/factsheets/display/article/1519682/operation-frantic-shuttle-raids-to-the-soviet-union/; and auschwitz, bombing of, shoah resource center, https://www.yadvashem.org/odot_pdf/microsoft%20word%20-%205786.pdf (last visited sept. 22, 2024). see also richard breitman and allan j. lichtman, fdr and the jews (2013) 282-86. 178 deborah e. lipstadt, beyond belief: the american press and the coming of the holocaust, 1933-1945 71-72 (1986). https://www.nationalmuseum.af.mil/visit/museum-exhibits/fact-sheets/display/article/1519682/operation-frantic-shuttle-raids-to-the-soviet-union/ https://www.nationalmuseum.af.mil/visit/museum-exhibits/fact-sheets/display/article/1519682/operation-frantic-shuttle-raids-to-the-soviet-union/ https://www.yadvashem.org/odot_pdf/microsoft%20word%20-%205786.pdf 1110 colum. j. race & l. [vol. 14:1086 industrialists who had enriched themselves by using slave labor during the war, and allowed ex-nazis into the new government.179 by 1950, under mccloy’s administration, more than 80 per cent of the judges in bavaria were ex-nazis. roger baldwin, the leading figure in the american civil liberties union complained, after a fact-finding mission to germany that “the wrong men are at the top of the government,” and “former nazis hold too many posts.” other observers reached the same conclusion.180 in addition to placing ex-nazis in post-war government positions, mccloy pardoned, granted clemency, or commuted sentences for 64 of 74 nazi war criminals. those pardoned or had their sentences commuted included mass murderers, doctors who performed inhumane experiments on concentration camp and death camp inmates, and industrialists who used slave labor, with many of their workers dying from starvation or punishment. he commuted the sentences of ten of the fifteen war criminals sentenced to death for mass murder, enslavement, and similar crimes.181 while mccloy was considering the fate of these war criminals, some of the murderers, doctors, and industrialists who used slave labor were appealing their sentences to the u.s. supreme court. while the cases were pending justice frankfurter and mccloy corresponded, even though mccloy was in effect a party to the case.182 oddly, the former law professor saw nothing unethical about what amounted to ex parte communications with parties to cases that were on appeal to his court. frankfurter’s relationship with mccloy during the war and while mccloy was the high commissioner of germany raises an important question about his role on the court and his ethics as a justice. during the war, frankfurter lived around the corner from mccloy. the two met for evening walks and had numerous phone conversations, where they discussed “departmental matters.”183 through these conversations frankfurter, while on the court, was involved in helping the administration draft legislation connected to the war, policies on the conduct of the war, and international negotiations.184 historians of the internment have documented that frankfurter “informally advised ‘jack’ mccloy about restrictions on aliens.”185 this of course would include the internment of tens of thousands of japanese immigrants living in the united states who were unable to naturalize because federal law prohibited the naturalization of anyone from east asia.186 was frankfurter’s unwavering support for the internment of 179 kai bird, the chairman: john j. mccloy, the making of the american establishment 359-88 (1992). 180 r.w. kostal, laying down the law: the american legal revolutions in occupied germany and japan 286-301 (2019). 181 bird, the chairman, supra note 179, at 364; see 359-88 (describing crimes of these nazis). 182 id. at 373-74. 183 murphy, the brandeis/frankfurter connection, supra note 13, at 204, 219. sloan, court at war, supra note 168, at 177. 184 murphy, brandeis/frankfurter connection, 219-20, 285, 291. 185 daniels, concentration camps usa, supra note 169, at 135. 186 gabriel jack chin and paul finkelman, the “free white persons” clause of the naturalization act of 1790 as super-statute, 65 william & mary l. rev. 1047 (2024). 2024] the tragedy of felix frankfurter 1111 japanese americans, including his concurrence in korematsu v. united states, influenced by the fact that his protégé was the architect? we do not know exactly what advice frankfurter gave mccloy while planning the internment, but it is reasonable to think that frankfurter talked about the internment with mccloy and also with fdr. we know frankfurter “maintained regular contact while mccloy was actively involved in defending the legality of the internment.”187 frankfurter had been advising mccloy on these issues and while he was on the court, the justice was heavily involved in administrative policymaking and working with his many contacts, and former students in the administration.188 was frankfurter’s korematsu concurrence, upholding the internment,189 a function of an unethical relationship with the mccloy? should the justice have recused himself in korematsu?190 iv. the new justice trapped in a time warp in 1939, frankfurter joined the supreme court. some conservatives opposed his nomination, as teddy roosevelt’s ancient and absurd claim that he was a “bolshevik” resurfaced.191 unlike other nominees at the time, the senate committee insisted that he appear in person to answer questions.192 “frankfurter faced opposition from ‘a strange assortment of crackpot crusaders, fascists, professional jewhaters, and others.’”193 in the end, the senate unanimously confirmed him by a voice vote.194 thus began his long tenure on the court. but as noted in the previous discussion of the japanese internment, which i will return to later in this article, on the court he did not cease advising the president and other administration officials. indeed, frankfurter continued to meet with the president and had back-door access to the white house, where he frequently visited.195 when he went to the court, progressives had high hopes for him. the nation asserted that “[n]o other appointee . . . has gone to the court so fully prepared for its great tasks.”196 in 1930, in a speech at yale, “frankfurter posited a living constitution, which ‘within its own ample and flexible resources permits adequate response to changing social and 187 eric k. yamamoto, margaret chon, carol l. izumi, jerry kang, frak wu, race rights and reparation: law and the japanese interment (2001) 162. 188 snyder, supra note 4, at 353, 710, and 506-09; urofksy, felix frankfurter, supra note 3, at 37. 189 korematsu v. u.s., 323 u.s. 214, 224 (1944), frankfurter, j., concurring. snyder does not appear to have consulted record group 107 in the national archives, where the correspondence with mccloy is documented. 190 one of the most “scathing law review critiques” of korematsu, wiecek, birth of the modern constitution supra note 2, at 346, was by the niece of louis brandeis. nanette dembitz, racial discrimination and military judgment: the supreme court’s korematsu and endo decisions, 46 colum, l. rev. 175 (1945). 191 snyder, supra note 4, at 104. 192 mark tushnet, the hughes court: from progressivism to pluralism, 1930-1941 320 (2021). 193 id. 194 snyder, supra note 4, at 328. 195 id. at 353. 196 mark tushnet, hughes court, supra note 192, at 320. 1112 colum. j. race & l. [vol. 14:1086 economic needs.’”197 but on the court he either abandoned or forgot these insights. on the court frankfurter was sometimes brilliant, but he was also stubborn and egocentric. in the end he would be intellectually and jurisprudentially trapped in the early twentieth century, while the american century passed him by. in the laudatory conclusion of his biography, snyder praises frankfurter for following the constitutional theories of harvard professor james bradley thayer, who died in 1902.198 it is as though frankfurter never had a new constitutional thought of his own after he left law school. there was no intellectual or jurisprudential growth even as the united states and the world changed in the six decades between frankfurter entering law school and stepping down from the supreme court. as a law student and young lawyer, frankfurter watched the supreme court eviscerate some progressive state legislation, most famously illustrated by striking down new york’s limitation on working hours for bakers in lochner v. new york.199 he became convinced that the supreme court should rarely, if ever, override state legislation, should never do so through the due process clause of the fourteenth amendment, and should never override federal laws “unless they were unconstitutional beyond a reasonable doubt.”200 “as one critical commentator put it,” for frankfurter “’all things should be stretched almost to the breaking point in order to hold any act of a state constitutional.’”201 once frankfurter’s mind was made up, he never looked back. frankfurter never reconsidered his own constitutional theories, which were undisturbed by the great events of the age in which he lived. in the international arena, frankfurter’s constitutional theories were unaffected by world war i, the rise of communism and fascism in europe, world war ii, the holocaust, the atomic age, the korean war, and the cold war. domestically he was unaffected by women’s suffrage, the rise of organized crime during prohibition, the repression of free speech during world war i, the red scare of 1919, the wave of white attacks on black communities after world war i, the great depression, the new deal, the emergence of the labor movement and powerful unions, the persistence of lynchings and racially motivated murders throughout the country, the lynching of leo frank, the great migration of african americans to the north, the rise of the second ku klux klan, the religiously and racially motivated immigration restrictions of 1921 and 1924, mccarthyism, and the civil rights movement. he never paused to consider whether any of these events called for a reevaluation of how a judge might approach the constitution, the bill of rights, the civil war amendments, and other constitutional and historical developments. while other justices were legally realistic in changing times, even though they were not “legal realists,” frankfurter was locked in the past, 197 wiecek, birth of the modern constitution, supra note 2, at 88, 198 snyder, supra note 4, at 710. urofsky, felix frankfurter, supra note 3, at 30-31. 199 lochner v. new york, 198 u.s. 45 (1905). 200 snyder, supra note 4, at 710. 201 tushnet, the hughes court, supra note 192, at 1114; tushnet quoting fred l. howard, freedom of speech and labor controversies, 8 mo. l. rev. 25, at 43 (1943). 2024] the tragedy of felix frankfurter 1113 almost always looking backwards. he was convinced that laws passed by legislatures and executive branch policies should almost never be overturned, even when they were oppressive, religiously intolerant, or racist.202 he regretted police brutality and unfair trials but did not think existing federal laws should be used to prosecute police who brutalized or murdered blacks or that the constitution allowed the court to overturn unfair trials. he probably thought all defendants needed lawyers to have a fair chance at a trial, but he “vehemently disagreed” 203 with the idea that the right to counsel in the sixth amendment could be incorporated to the states.204 in conference he argued that doing so “would uproot all the structure of the states.”205 fidelity to states’ rights was far more important to frankfurter than fair trials for indigent defendants, and if black people like willie francis were executed after a patently unfair trial, frankfurter was willing to accept such “costs” to preserve his legal theories. frankfurter’s opposition to the court providing meaningful protections against bigoted legislatures’ racially motivated police violence, or segregated juries, may have been unshakable because he believed in “democracy.”206 however, it is hard to understand how he did not see the way democracy and the tyranny of the majority were used to attack minorities, including african americans, german americans in nebraska, japanese americans and japanese immigrants during world war ii, or jehovah’s witnesses. his rigid opposition to using existing federal civil rights laws and the civil war amendments to the constitution cannot be reasonably based on his alleged “democratic” principles. certainly, he knew that throughout the south, and much of the north, blacks were segregated, subject to police brutality, local vigilantism, and faced massive educational and economic discrimination. especially in the south, where most black people lived and were universally disfranchised, democracy was a hollow concept. thus, in one case after another frankfurter voted to uphold bigotry, intolerance, unfair trials, repression, racism, and some of the most outrageous governmental behavior in american history, because these policies had been created by an elected legislature, were implemented by an elected governor or president, or were consistent with his support for states’ rights.207 although he voted against segregated schools,208 he supported allowing a segregated restaurant which received a subsidy from the city to operate in a publicly owned building.209 always claiming to be progressive on race and civil liberties, he supported laws that incarcerated japanese americans (the majority of whom were american citizens born in the united states) in concentration camps, solely on the basis of their 202 see discussion infra parts v and vii. 203 wiecek, birth of the modern constitution, supra note 2, at 494. 204 betts v. brady, 316 u.s. 455 (1942). 205 wiecek, birth of the modern constitution, supra note 2, at 494. 206 hence the title of snyder’s book. 207 see discussion infra parts v. and vii. 208 brown v. board of education, 347 us 483 (1954). 209 burton v. wilmington parking authority, 365 u.s. 715, 727 (1961), (frankfurter, j., dissenting). 1114 colum. j. race & l. [vol. 14:1086 race,210 expelling elementary school children for refusing to violate their religious beliefs by bowing down to an idol,211 denying observant jews (as well as seventh-day adventists and other christian sabbatarians) the right to have a six-day work week because their faith precluded them from working on their sabbath (saturday) and states prosecuted them for working on the traditional christian sabbath,212 and upholding outrageously malapportioned legislative districts on the absurd ground that the self-serving legislators who had created or perpetuated these districts should be expected to fix the problem.213 frankfurter was clearly a gentle soul and never personally favored police brutality. while on the court he almost always upheld federal laws. but oddly, when it came to police brutality against african americans, frankfurter was unwilling to enforce federal laws. in screws v. united states he opposed applying federal civil rights laws against policemen who brutalized and beat to death an african american prisoner.214 the majority opinion in screws began with a stark description of the case: this case involves a shocking and revolting episode in law enforcement. petitioner screws was sheriff of baker county, georgia. he enlisted the assistance of petitioner jones, a policeman, and petitioner kelley, a special deputy, in arresting robert hall. . . . the arrest was made late at night at hall's home on a warrant charging hall with theft of a tire. hall, a young negro about thirty years of age, was handcuffed and taken by car to the court-house. as hall alighted from the car at the court-house square, the three petitioners began beating him with their fists and with a solid-bar blackjack about eight inches long and weighing two pounds. they claimed hall had reached for a gun and had used insulting language as he alighted from the car. but after hall, still handcuffed, had been knocked to the ground they continued to beat him from fifteen to thirty minutes until he was unconscious. hall was then dragged feet first through the court-house yard into the jail and thrown upon the floor dying. an ambulance was called and hall was removed to a hospital where he died within the hour and without regaining consciousness. there was evidence that screws held a grudge against hall and had threatened to “get” him.215 in dissent, frankfurter argued that sheriff claude screws might be “guilty of manslaughter, if not of murder, under georgia law,” for beating hall to 210 korematsu v. united states, 323 u.s.214, 224 (1944) (frankfurter, j., concurring). 211 minersville board of education v. gobitis, 310 u.s. 586 (1940); west virginia board of education v. barnette, 319 u.s. 624, 646 (1943) (frankfurter, j. dissenting). 212 mcgowan v. maryland, 366 u.s. 420, 459 (1961) (frankfurter, j. concurring). 213 baker v. carr, 369 u.s. 186, 266 (1962) (frankfurter, j., dissenting). 214 screws v. united states, 325 u.s. 91 (1945) (frankfurter, j., dissenting). for another example of frankfurter’s utter insensitivity to protecting black people from outrageous police brutality, see the discussion of his lone dissent in monroe v. pape, 365 u.s. 167, 202 (1961). 215 screws, at 92-93. no gun was ever found in hall’s possession. 2024] the tragedy of felix frankfurter 1115 death, but he refused to connect the murderous police officials to the utter lack of democracy for african americans in georgia. thus, frankfurter refused to support a federal prosecution under reconstruction-era civil rights laws. rather, frankfurter believed the case should be left to “vindication by georgia law,”216 utterly ignoring the reality that in 1945, in a state that was thoroughly segregated and virtually all african americans were disfranchised, no white police officer was going to be charged for murdering a black man.217 his dissent in screws suggest that while frankfurter, who once worked with the naacp to support civil rights, might have thought black lives mattered, they did not matter very much. frankfurter’s hero, justice oliver wendell holmes, jr., famously dissented in lochner and other economic due process cases in the early part of the twentieth century, objecting to the use of the due process clause of the fourteenth amendment to strike down state economic regulation. but, by the mid-1920s, holmes had embraced the idea that the fourteenth amendment should be used to strike down bigoted and repressive state legislation aimed as suppressing minorities or freedom of speech. frankfurter’s mentor, justice louis d. brandeis, joined holmes in creating this jurisprudence. thus, holmes and brandeis joined the majority in striking down the ku klux klan-inspired oregon law which prohibited parochial and other private schooling in the state.218 frankfurter vigorously denounced that outcome but did it anonymously,219 perhaps because he did not want to publicly disagree with holmes and brandeis. similarly, while holmes and brandeis supported a repressive federal law that denied free speech to opponents of world war i in schenck v. united states,220 they soon changed their jurisprudence toward both federal and state laws that suppressed freedom of expression, even though they never formally recanted the earlier opinions.221 frankfurter was not a failure as a justice because he wrote opinions which in retrospect were wrong. all justices have done that. no justice is perfect. frankfurter’s ultimate failure as a justice was rooted in his inability (or unwillingness) to admit he had ever made a mistake. that failure is compounded because he never understood that his opposition to striking down economic regulations—like wage and hour laws or bans on child labor—which affected all citizens equally, did not translate to legislative acts that singled out disfavored minorities for bigoted and 216 screws, at 138. frankfurter rejected that screws could be prosecuted under a federal law, the civil rights act of 1866, despite the clear language of the statute: “whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects . . . any inhabitant of any state . . . to the deprivation of any rights, privileges, or immunities secured or protected by the constitution and laws of the united states . . . .” screws, at 139. 217 the details of the beating of hall are found here. https://go.gale.com/ps/i.do?id=gale%7ca689949004&sid=googlescholar&v=2.1&it=r&link access=abs&issn=21587345&p=aone&sw=w&usergroupname=anon%7ebcd5f7aa&aty=o pen-web-entry (last visited 3/34/24). the killing of hall took place in 1943, but the case did not reach the court until 1945. 218 see text supra, at notes 117-23. 219 snyder, supra note 4, at 157-58. 220 schenck v. united states, 249 u.s. 47 (1919). 221 abrams v. united states, 250 u.s. 616, 624 (holmes, j. dissenting); gitlow v. new york, 268 u.s. 652, 672 (1925) (holmes and brandies, jj. dissenting); and whitney v. california, 274 u.s. 357, 372 (1927) (brandeis and holmes, jj. concurring). https://go.gale.com/ps/i.do?id=gale%7ca689949004&sid=googlescholar&v=2.1&it=r&linkaccess=abs&issn=21587345&p=aone&sw=w&usergroupname=anon%7ebcd5f7aa&aty=open-web-entry https://go.gale.com/ps/i.do?id=gale%7ca689949004&sid=googlescholar&v=2.1&it=r&linkaccess=abs&issn=21587345&p=aone&sw=w&usergroupname=anon%7ebcd5f7aa&aty=open-web-entry https://go.gale.com/ps/i.do?id=gale%7ca689949004&sid=googlescholar&v=2.1&it=r&linkaccess=abs&issn=21587345&p=aone&sw=w&usergroupname=anon%7ebcd5f7aa&aty=open-web-entry 1116 colum. j. race & l. [vol. 14:1086 repressive treatment. unlike holmes (his hero) and justice louis d. brandeis (his mentor), frankfurter never understood that the court had an obligation to protect civil liberties, civil rights, due process, and fair political representation from oppressive legislatures and executive officials. snyder asserts that frankfurter’s “philosophy of judicial restraint” came from “reading” the “opinions” of holmes and brandeis.222 but this is simply not correct. had frankfurter read their opinions in every free speech case after the spring of 1919, noticed brandeis’s vote in meyer v. nebraska, or recognized the support of both justices for the unanimous decision in pierce or their dissents in cases denying naturalization to pacifists,223 he would have learned from them that judicial restraint has no place when the government tramples on the civil liberties of individuals or the police brutalize people under the color of law, especially because of their race or religion, but also because of their political views.224 as he showed in his support for the incarceration of innocent japanese americans merely because of their race,225 frankfurter never understood or accepted that the bill of rights (and the three civil war amendments) were designed to limit legislatures, governors, and even presidents, from trampling on fundamental rights. the contrast with justice robert jackson on this issue is striking. jackson was hardly a liberal activist. in some ways, he was jurisprudentially quite conservative. but jackson understood, and eloquently set out, the obligation of justices to protect the fundamental liberties of all americans. in the second flag salute case, west virginia board of education v. barnette, he wrote: “the very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”226 frankfurter vigorously and angrily dissented from jackson’s brilliant language and analysis supporting free speech and civil liberties. in defending frankfurter’s barnette dissent, snyder asserts that “it was not hard for frankfurter to believe that the political process, led to more liberal outcomes—especially with roosevelt in the white house for the past eleven years.”227 the analysis based on the “liberal outcomes” of fdr’s presidency is actually inconsistent with the history of the period. 222 snyder, supra note 4, at 353-54. 223 united states v. schwimmer, 279 u.s. 644 (1929), (holmes, j. dissenting, with brandeis joining the dissent) see the discussion of girouard v. united states, 328 u.s. 61 (1946), infra at notes 303-05. in that case frankfurter joined two other dissenters, arguing that a pacifist should not be allowed to become a naturalized citizen. in the wake of world war ii, and the holocaust, frankfurter was unwilling to grant religious liberty to an alien who otherwise was entitled to naturalize. 224 see, e.g., frankfurter upholding the conviction of a college student for a public speech denouncing racial discrimination in feiner v. new york, 340 u.s. 315 (1951). 225 korematsu v. united states, 322 u.s. 214, 224-225 (1944), (frankfurter, j. concurring). 226 319 u.s. at 638. see infra, part v., section a. 227 snyder, supra note 4, at 429. 2024] the tragedy of felix frankfurter 1117 the laws oppressing jehovah’s witnesses had been passed in the late 1930s and 1940s, during the roosevelt administration. the new deal did not offer any protection for the witnesses, and frankfurter clearly knew that. indeed, the “political process” during this period led to one state after another passing laws to harass witnesses and these were followed by local prosecutions. this state legislative and judicial oppression only increased after frankfurter’s opinion in gobitis, as numerous states passed new and increasingly repressive laws, while mobs attacked witnesses, often aided by local law enforcement. 228 witnesses were beaten, kidnapped, mobbed, and arbitrarily arrested, while in some places terrorists and vigilantes burned down their churches. some were tarred and feathered, in arkansas some were shot, and in nebraska one man was castrated.229 it was this wave of terror and repression that in part led the court to overturn gobitis. the six justices in the majority in barnette knew this, but if we are to believe snyder, frankfurter was unaware of these pogroms and repressive laws in his own country. a far more plausible explanation is that frankfurter really did not care much what happened to the witnesses and did not really believe in civil liberties for minorities, especially religious minorities. or, alternatively, that having written an opinion in favor of repression he stubbornly refused to reconsider his views. unlike chief justice john marshall, frankfurter never understood that while the constitution set out a basic plan for government, it was not frozen in time. in his greatest opinion, marshall reminded americans “we must never forget that it is a constitution we are expounding”230 and that the constitution was “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”231 the civil war amendments were adopted to end slavery, make african americans and other non-whites equal citizens, and apply most of the bill of rights to the states to protect the liberties of all americans from state legislatures and executives that trampled on the rights of minorities.232 frankfurter far too often forgot or ignored these aspects of constitutional law. most importantly, trapped in the intellectual world of 1905, he was unable to adapt his own constitutional theories and jurisprudence to “the various crises of human affairs”233 in a different age. because of this, he was a failed justice. v. the new justice and world war ii in his first few years on the court, frankfurter emerged as an opponent of civil liberties and due process, especially for minorities. at the same time, he began a pattern of behavior that violated the traditional 228 paul finkelman, the flag salute cases, in 2 historic u.s. court cases 947, 951 (ed. john w. johnson) (2nd ed. 2001). 229 id. at 950-51. 230 mcculloch v. maryland, 17 u.s. (4 wheat.) 316, 407 (1819). 231 id. at 415. 232 in the debates over the citizenship clause of the fourteenth some members of congress wanted to limit birthright citizenship to african americans and exclude chinese. the congress emphatically rejected this idea. paul finkelman, original intent and the fourteenth amendment: into the black hole of constitutional law, 89 chi-kent l. rev. 1019, 1024-29 (2014). see also paul finkelman, john bingham and the background to the fourteenth amendment, 36 akron l. rev. 671 (2003). 233 mcculloch v. maryland at 415. 1118 colum. j. race & l. [vol. 14:1086 notion that justices should not advise the executive branch and that justices should stay out of politics. he was furious that justice william o. douglas was considering leaving court for electoral politics. ranting at this violation of his notion of judicial ethics, frankfurter told justice frank murphy, “when a priest enters a monastery, he must leave-or ought to leave-all sorts of worldly desires behind him. and this court has no excuse for being unless it's a monastery.”234 but at the very time he wrote this, frankfurter was constantly meddling in politics. with back door access to the white house, frankfurter secretly left his “monastery” on a regular basis to consult with the president, cabinet members, and other administration officials. frankfurter also regularly violated his “monastic” vows in his jurisprudence. as william m. wiecek aptly observed, while frankfurter “consistently promoted judicial restraint” in civil liberties cases,235 frankfurter in fact “had difficulty disciplining himself” on the court in his opinions. he ignored the american bar association’s canons of judicial ethics (1924) “which called on judges . . . to exercise ‘self-restraint’” when writing opinions.236 indeed, frankfurter could not restrain himself on the bench or exercise the discipline to refrain from political activity and egregious violations of the separation of powers. this departure from judicial restraint is illustrated by two sets of cases involving jehovah’s witnesses (partially discussed above), two cases involving the internment of japanese americans, and is further exemplified by justice frankfurter's response to the holocaust. while constantly meeting with president roosevelt and members of the administration during his time on the bench, a clear violation of judicial ethics, he adamantly refused to discuss the holocaust with the president. ironically, given his meddling in politics when he had no business doing so because the issues might come before the court, he uncharacteristically kept his mouth shut on the one issue of pressing urgency—the holocaust— where speaking out, or quietly lobbying president roosevelt, secretary of war stimson, or assistant secretary of war mccloy would not have impinged on judicial ethics because it was highly unlikely to have impacted american law.237 a. the flag salute cases in 1940, frankfurter wrote the majority opinion in minersville board of education v. gobitis,238 upholding the expulsion of two children from an elementary school who refused to salute the flag. as jehovah’s witnesses, the children believed this act of reverence towards a piece of 234 frankfurter diaries quoted in melvin i. urofsky, conflict among the brethren: felix frankfurter, william o. douglas, and the clash of personalities and philosophies on the united states supreme court, 1988 duke l.j. 71, at 101-02 (1988). 235 wiecek, the birth of the modern constitution supra note 2, at 413. 236 id. at 89-90. 237 one might argue that at the end of the war, in the light of the nuremberg trials, a case might have reached the court, but certainly in 1942 or 1943, when frankfurter refused to discuss the issue with fdr, this would have seemed extraordinarily unlikely. 238 minersville board of education v. gobitis, 310 u.s. 586 (1940). 2024] the tragedy of felix frankfurter 1119 cloth violated the biblical injunction against idol worship. the gobitas239 children were polite and respectful to the flag ceremony but would not participate in it. the case was fraught with local politics and religious bigotry. the jehovah’s witnesses faith was notoriously anti-catholic (believing the pope was the anti-christ) while the school officials, and eighty percent of the town, were roman catholics. this led to the school district’s aggressive response to the request that the children not be forced to say the pledge.240 the lower federal court ordered the readmission of the children. judge albert maris, a quaker with a personal understanding of religious persecution, noted that the school superintendent’s behavior was “a means for the persecution of children for conscience’s sake” and had little to do with the educational needs of the school. maris noted “[o]ur country’s safety surely does not depend upon the totalitarian idea of forcing all citizens to render lip service in a manner that conflicts with their sincere religious convictions.”241 he found this “doctrine . . . utterly alien to the genius and spirit of our nation and destructive of that personal liberty of which our flag itself is the symbol.”242 the third circuit court of appeals unanimously upheld his decision, noting that a compelled flag salute was “an affront to the principles for which the flag stands.”243 both decisions reflected the view of the new york herald tribune that “[t]o compel school children to salute the flag is a step in the ‘heil hitler’ direction.”244 this was the perfect case for the relatively new justice to make his mark as the former aclu advisor and litigator who would protect civil liberties and minorities on the court. frankfurter now had an opportunity to strengthen his pre-court progressive stances that led brandeis to call him the nation’s “most useful lawyer.” 245 but this did not happen. with the nazis gobbling up europe, arresting and persecuting jehovah’s witness, roma, jews, and others, frankfurter shocked his friends with an over-the-top repressive decision condoning the religious bigotry of the small-minded, small-town school officials in minersville. as one scholar has noted, “frankfurter’s opinion would be best remembered not for his clearly articulated position on the law so much as for the fact that frankfurter, a founder of the aclu, would reject one of the most dramatic civil liberties 239 the last name was actually gobitas, but a court clerk misspelled it, and the spelling error remains in the case caption. 240 douglas laycock notes that the witnesses “own doctrines were intolerant, especially of catholics.” douglas laycock, a survey of religious liberty in the united states, 47 ohio st. l.j. 409, 419 (1986); finkelman, flag salute cases, supra note 228, at 947, 951. for a useful study of these cases, see ian rosenberg, the fight for free speech: ten cases that define our first amendment freedoms 26-54 (2021); david manwaring, render unto caesar: the flag salute controversy (1962); peter irons, the courage of their convictions (1988); and leonard a. stevens, salute! the case of the bible vs. the flag (1973). 241 gobitis v. minersville school district, 24 f. supp. 271, 274 (e.d. pa. 1938). 242 id. 243 minersville board of education v. gobitis, 108 f.2d 683, 691 (3d cir. 1940). 244 snyder, supra note 4, at 352. 245 urofsky, felix frankfurter, supra note 3, at 20. 1120 colum. j. race & l. [vol. 14:1086 claims of the modern court era. his opinion would also prove his undoing as leader of the roosevelt appointees.”246 as his own european jewish relatives were being arrested and persecuted for their faith,247 frankfurter vigorously supported the power of the school district’s expulsion of the gobitas children. although the united states was not yet involved in the war in europe,248 frankfurter argued national unity was “the basis of national security” and that the “flag is the symbol of our national unity.” therefore, he concluded that it was permissible to compel all children to participate in patriotic exercises in public schools.249 with embarrassing rhetorical overkill, he compared forcing a ten-year-old to salute the flag to lincoln authorizing the military to arrest pro-confederate terrorists who were trying to destroy railroad tracks and bridges to isolate washington d.c. from the rest of the nation decision at the beginning of the civil war.250 it is hard to imagine that frankfurter truly believed that a couple of elementary school children refusing to salute the flag were the equivalent of armed pro-confederate saboteurs trying to blow up bridges or destroy railroad tracks. but it is equally hard to understand why he used this analogy. in his biography snyder defends frankfurter’s opinion on a variety of grounds, including frankfurter’s “opposition to american neutrality and isolationism,” “hitler’s threat to exterminate europe’s jews,” and frankfurter’s “preoccupation with his wartime policymaking and recruitment efforts on behalf of the roosevelt administration.”251 however, this analysis is seriously flawed. we can only wonder why frankfurter believed that persecuting elementary school children because they were members of a small and powerless religious minority was an answer to “isolationism.” on the contrary, the school districts and state legislatures, supported by frankfurter’s opinion, were playing directly into the hands of the bigots, isolationists, and xenophobes. frankfurter’s opinion simply encouraged the isolationists by justifying their bigotry, as his opinions “unleashed a new wave of violence against the witnesses.”252 snyder’s defense of frankfurter is also inconsistent with the actual history of the time. in the spring of 1940, hitler was persecuting jews but had not yet initiated a program of genocide to “exterminate europe’s jews.”253 moreover, as will be described below,254 when frankfurter was 246 simon, the antagonists, supra note 2, at 114. 247 the nazis jailed frankfurter’s beloved eighty-two-year-old uncle in vienna. 248 the nation was officially neutral at this time, and while many people assumed war was on the horizon, the nation had taken no steps in that direction at the time the court decided gobitis in june 1940. 249 gobitis, 310 u.s. at 595, 596. it is worth noting that hitler, mussolini, franco, tojo, or stalin would have completely agreed with this position. 250 id. at 596. on lincoln’s suspension of habeas corpus, see mark e. neely, jr., the fate of liberty: abraham lincoln and civil liberties (1991). see also paul finkelman, civil liberties and the civil war: the great emancipator as civil libertarian, 91 mich. l. rev. 1353 (1993). 251 snyder, supra note 4, at 353. 252 walker, in defense of american liberties, supra note 3, at 109. 253 snyder, supra note 4, at 353. 254 infra at pp. 1134-36. 2024] the tragedy of felix frankfurter 1121 confronted with evidence of the holocaust and the nazi death camps, he categorically refused to believe the eyewitness who reported to him and refused to discuss the ongoing holocaust with roosevelt, even though he had direct and private access to the president.255 furthermore, it is absurd to argue that persecuting religious minorities in the united states was a response to nazi persecution of jews and jehovah’s witnesses in germany. it is worth remembering that the nazis had rounded up jehovah’s witnesses in germany before they rounded up german jews. finally, there is the explanation (or arguably the excuse) that frankfurter was “preoccupied with his wartime policy making and recruitment efforts on behalf of the roosevelt administration.”256 at the time frankfurter wrote his gobitis opinion, the united states was not at war and in fact had taken very few steps towards going to war. for example, congress would not enact the first peacetime draft until september 1940, and lend-lease, which was a major step towards the war, would not begin until march 1941. put simply, in june 1940 the united states had no “war-time” policy, so it is impossible to explain frankfurter’s opinion in gobitis with such an argument. even more problematic is the justification (or excuse) for frankfurter’s repressive opinion because he was busy with “wartime” policy and staffing the administration. as a justice frankfurter had absolutely no business staffing the administration or making military policy. certainly, frankfurter was not out of ethical bounds in recommending his former students for jobs. but giving advice to the president and other administration officials on legislation and policy matters, as frankfurter was secretly doing, was unprofessional, violated traditional norms of judicial ethics, and undermined the whole notion of separation of powers. certainly, this unethical behavior cannot be used to justify frankfurter’s authoritarian opinion. if frankfurter truly believed he should be involved in making policy, then he should have left the court, as other justices have done, and joined the administration.257 but assuming someone actually believes a supreme court justice should be involved in executive branch staffing, drafting legislation, and making policy during “wartime,” (even when the united states was not actually at war), it is hard to fathom how the desire of the gobitas children 255 see discussion infra part v, section c. 256 snyder, supra note 4, at 353. 257 frankfurter’s judicial colleague james f. byrnes served on the court from july 1941 until october 1942, when he became the director of the office of economic stabilization and then left that post to become director of the office of war mobilization until 1945, when became secretary of state. this was the model frankfurter should have followed if he wanted to be involved in policy making. there are other examples of this. justice john rutledge resigned from the court in 1791 to become chief justice of south carolina; chief justice john jay resigned from the court in 1795 to become governor of new york; david davis left the court in 1877 when he was elected to the united states senate; charles evans hughes resigned from the court in 1916 to run for president and then returned to private practice until 1930 when he went back to the court as chief justice; frankfurter’s successor on the court, justice arthur goldberg, resigned from the court in 1966 to become the u.s. ambassador to the united nations. john a. campbell left the court in 1861 to join the confederacy as assistant secretary of war, and thus to make war on his own country. 1122 colum. j. race & l. [vol. 14:1086 to remain silent and not raise their hands in supplication of the flag threatened that policy. frankfurter personally thought that the law was “foolish,”258 but this only undermines his opinion. if he thought the law was foolish, and could accomplish little, why did he offer his over-the-top comparison of the flag salute to the crisis of the union in 1861? if frankfurter knew that this foolish law could not accomplish its goal, what exactly justified the religious intolerance of the state and the court? from his narrow analysis of constitutional law, frankfurter believed courts should rarely if ever overturn state laws, however “foolish” they might be. he simply did not believe the court should overrule state legislation that interfered with “liberty.” here, frankfurter was intellectually frozen by lochner v. new york259 and similar cases in which a much earlier court, with a thoroughly reactionary majority, had overturned progressive era economic legislation on the grounds that it interfered with liberty of contract. however, by 1940, the court had emphatically rejected such jurisprudence as it applied to economic regulations260 while selectively incorporating some of the bill of rights to the states to protect fundamental liberties.261 thus, frankfurter certainly knew that the court would no longer use (or misuse) substantive due process, the fourteenth amendment, and the bill of rights, or apply its earlier, and by 1940 outdated, distinction between manufacturing and commerce,262 to strike down progressive economic regulations. frankfurter’s fears of this, in 1940, were quite frankly, absurd. frankfurter was either incapable of seeing, or unwilling to see, the difference between protecting minorities from oppressive majorities and striking down economic regulations that helped the majority of people, which the court had struck down decades earlier263 but had been upholding since the late 1930s.264 after frankfurter became a justice, the court 258 snyder, supra note 4, at 358. 259 198 u.s. 45 (1905). 260 this jurisprudential change began with nebbia v. new york, 291 u.s. 502 (1934) and was solidified by west coast hotel co. v. parrish, 300 u.s. 379 (1937). see generally, barry cushman, rethinking the new deal court: the structure of a constitutional revolution (1998) and barry cushman, teaching the lochner era, 62 st. louis u.l.j. 537 (2018). for an intriguing defense of lochner, although not one i agree with, see david bernstein, rehabilitating lochner: defending individual rights (2011). 261 see gitlow v. new york, 268 u.s. 652 (1925); stromberg v. california, 283 u.s. 359 (1931); near v. minnesota, 283 u.s. 697 (1931); powell v. alabama, 287 u.s. 45 (1932); patterson v. alabama, 294 u.s. 600 (1935); herndon v. georgia, 295 u.s. 441 (1935); herndon v. lowry, 301 u.s. 247 (1937); cantwell v. connecticut, 310 u.s. 296 (1940). 262 for earlier examples of this, see e.c. knight v. united states, 166 u.s. 1 (1895) and hammer v. dagenhart, 247 u.s. 251 (1918). 263 see lochner v. new york, 198 u.s. 45 (1905); adair v. united states, 208 u.s. 161 (1908); loewe v. lawlor (the danbury hatters’ case), 208 u.s. 274 (1908); coppage v. kansas, 236 u.s. 1 (1915); adams v. tanner, 244 u.s. 590 (1917); hitchmand coal & coke co. v. mitchell, 245 u.s. 229 (1917); hammer v. dagenhart, 247 u.s. 251 (1918); truax v. corrigan, 257 u.s. 312 (1921): adkins v. children’s hospital, 261 u.s. 525 (1923); ribnik v. mcbride, 277 u.s. 350 (1928); new state ice co. v. liebman, 285 u.s. 262 (1932). 264 the most important cases in this area were: home building & loan assn v. blaisdell, 290 u.s. 398 (1934); nebbia v. new york, 291 u.s. 502 (1934); the gold clause cases [norman v. baltimore & ohio railroad, 290 u.s. 240 (1935); nortz v. united states, 294 .s. 317 (1935); perr v. united states, 294 u.s. 330 (1935)]; ashwander v. tennessee valley authority, 297 u.s. 288 (1936); national labor relations board v. jones & laughlin https://en.wikipedia.org/wiki/west_coast_hotel_co._v._parrish 2024] the tragedy of felix frankfurter 1123 continued to uphold federal and state economic regulations, with the new justice in the majority.265 by 1940, when he wrote his opinion in gobitis, frankfurter knew that the lochner era, of the court overturning state and federal economic regulations, was effectively dead. thus, his rigid refusal to protect basic liberties out of fear that the case could be used to strike down economic regulations simply makes no sense. most importantly, in gobitis, frankfurter ignored the economic regulation case of united states v. carolene products co.,266 where justice harlan fiske stone articulated that the court should give wide discretion to economic regulations “affecting ordinary commercial transactions,” reviewing them under a “rational basis” test,267 while arguing in his famous footnote 4 that the court should not give a “presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the fourteenth.”268 this analysis would easily have led frankfurter to support the two lower federal courts in striking down the pennsylvania law persecuting jehovah’s witness children. surely the razor-sharp frankfurter was smart enough to see the differences and understand the distinction. but, as mark tushnet has observed, because frankfurter had “articulated the position that courts should not displace legislative judgments about economic regulation by invoking vague constitutional terms like ‘due process,’ how could he support displacing legislative by invoking other seemingly equally vague constitutional terms like ‘equal protection’ and even ‘freedom of speech’?”269 the answer, of course, is that he could have supported liberty by relying on justice stone’s brilliant doctrine set out in carolene products. significantly, stone dissented from frankfurter’s opinion in gobitis. alternatively, frankfurter’s support for liberty was never what he claimed it to be. perhaps in gobitis, he was deceiving himself and his readers. the record in the district court overwhelmingly demonstrated steel corporation, 301 u.s. 1 (1937); nlrb v. friedman-harry marks clothing co., 301 u.s. 58 (1937); senn v. tile layers protective union, 301 u.s. 468 (1937); steward machine co. v. davis, 301 u.s. 548 (1937); electric bond & share co. v. securities and exchange commission, 303 u.s. 419 (1938). after frankfurter became a justice, the court continued to support economic regulations. see currin v. wallace, 306 u.s. 1 (1939); graves v. new york ex rel. o’keefe, 306 u.s. 466 (1939); mulford v. smith, 307 38 (1939. frankfurter would also have been familiar with a number of cases from before world war i through the hoover administration that had upheld state and federal economic regulations, including muller v. oregon, 208 u.s. 412 (1908), which frankfurter’s mentor louis brandeis has argued and won, hipolite egg co. v. united states, 220 u,.s. 41 (1911); standard oil co. v. united states, 221 u.s. 1 (1911); sturgis & burns mfg. co. v. beauchamp, 231 u.s. 320 (1913), shreveport rate cases, 234 u.s. 342 (1914); and bunting v. oregon, 243 u.s. 426 (1917), which frankfurter litigated and won. other cases upholding economic regulations before fdr’s election included: coronado coal co. v. united mine workers, 268 u.s. 295 (1925); village of euclid v. ambler realty co, 272 u.s. 365 (1926); united states v. swift & co., 286 u.s. 106 (1932). 265 currin v. wallace, 306 u.s. 1 (1939); graves v. new york ex rel. o’keefe, 306 u.s. 466 (1939); mulford v. smith, 307 38 (1939. 266 304 u.s. 144 (1938). 267 id. at 152. 268 id. 269 tushnet, hughes court, supra note 192, at 551. 1124 colum. j. race & l. [vol. 14:1086 that the flag salute regulation was not a neutral law, with a legitimate purpose, and it was not enforced neutrally. here, frankfurter might have turned to the case of yick wo v. hopkins,270 an early fourteenth amendment case, where the court struck down a law that pretended to be a fire regulation but was only used to persecute chinese immigrants and their american-born children. frankfurter’s solution for the gobitas family was to send their children to private schools, rather than to reign in the oppressive nature of the local school board.271 as noted earlier, in 1925 frankfurter had vigorously denounced the court’s decision in pierce v. society of sisters, which struck down a state law prohibiting private schools. had some state decided to prohibit private or parochial schools, in part to create the very “national unity” that frankfurter was demanding or passed legislation requiring that private schools require flag ceremonies (just as nebraska had prohibited private schools from teaching german), he likely would have supported these new school laws. thus, frankfurter, who never agreed with the decisions in meyer and pierce, was in the position of urging private schools for jehovah’s witnesses, and in effect inviting states to ban them, as oregon had.272 finally, there is the financial issue. as he later would in the sunday closing cases and cases upholding tax laws on religious books designed to harass witnesses,273 frankfurter seemed to think it was permissible for the government to make religiously observant people “pay” for their faith by forcing them to choose between religious obligation and being able to support themselves. legal scholars and public intellectuals roundly condemned the gobitis decision. although jehovah’s witnesses were notoriously anticatholic, law reviews at major catholic law schools condemned the decision.274 frankfurter’s opinion became an open invitation for bigots across the country to pass laws directly aimed at the jehovah’s witnesses. thus, the “democratic justice’s” gobitis opinion led to a spate of new state laws to punish children who would not “bow down” to the flag. in 1941, west virginia adopted a law requiring flag salutes in all public schools.275 the law contained a clause declaring that refusal to salute the flag for religious reasons would “be regarded as an act of insubordination”276 and lead to the children being expelled from school and declared truants. this would subject their parents to thirty days in jail and a fine of $50, which was equivalent to a month’s salary at the prevailing federal minimum wage.277 the west virginia law reflected the language of frankfurter’s gobitis opinion. within a few years, more than 2,000 children were expelled from schools across the country, with their parents 270 118 u.s. 356 (1886). 271 snyder, supra note 4, at 356. 272 see discussion supra part v, section a. 273 follett v. town of mccormick, 321 u.s. 573 (1944). see also discussion of “sunday closing” cases infra 80-82. 274 finkelman, flag salute cases, supra note 228, at 947, 951. 275 id. at 951. 276 id. at 952. 277 barnette at 629. 2024] the tragedy of felix frankfurter 1125 subject to fines and jail sentences.278 in addition to new repressive laws, frankfurter’s opinion also unleashed massive persecution and violence against jehovah’s witnesses, as across the nation witnesses were terrorized by vigilantes and local police.279 frankfurter certainly did not intend these outcomes, nor did he approve of them. however, he was surely politically savvy enough to have foreseen that such laws and violent attacks might follow from his opinion forcing jehovah’s witnesses to comply with authoritarian and repressive community standards of patriotism and religious belief. the flag salute cases are a clear example supporting “[t]he standard story about frankfurter . . . that he struggled to fill the seat once held by holmes” and that he ultimately failed in that struggle.280 gobitis, and his dissent in barnette three years later, call into question the claim that frankfurter’s “philosophy of judicial restraint” came from “reading . . . holmes’s and brandeis’s opinions.”281 in 1919 backlash against holmes’s opinion in schenck v. united states282 led both holmes and brandeis to quickly distance themselves from the test in schenck. and while frankfurter almost worshipped both justices, he failed to learn from them that when justices make a mistake, they should not double down on their error, but should find a way, as holmes and brandeis did in subsequent free speech cases, to move in a different direction.283 law professors, liberal activists, journalists, and others denounced frankfurter’s opinion. only justice harlan fiske stone dissented in gobitis. but, shortly after gobitis, three of the justices in frankfurter’s majority—black, douglas, and murphy—realized how oppressive this decision was. in 1943, the court reconsidered the flag salute issue in west virginia board of education v. barnette.284 this was frankfurter's golden opportunity to redeem himself, concede he was wrong in gobitis, and make his mark as a great justice. had he done so he might have become the intellectual and moral leader of the court, as he always believed he should be. in this context he might have learned from holmes and brandeis, who supported free speech in abrams by distinguishing it from the oppressive opinion in schenck. frankfurter was smart enough to change his jurisprudence, distinguish the cases, and move the court to support liberty, without having to admit he was wrong in gobitis. but frankfurter did not do this, instead, he doubled down on his support for religious persecution in an angry dissent. frankfurter responded with fury at the rejection of his gobitis opinion and his 278 finkelman, flag salute cases, supra note 228 at 950-51. 279 id. 280 snyder, supra note 4, at 4. 281 id. at 353-54. 282 249 u.s. 47 (1919). on the immediate scholarly pushback from these opinions, see zechariah chafee, jr. freedom of speech (1920). see also murphy, world war i, supra note 106. 283 abrams v. united states, 250 u.s. 616, 624 (holmes, j. dissenting); gitlow v. new york, 268 u.s. 652, 672 (1925) (holmes and brandies, jj. dissenting); and whitney v. california, 274 u.s. 357, 372 (1927) (brandeis and holmes, jj. concurring). 284 west virginia board of education v. barnette, 319 u.s. 624 (1943). 1126 colum. j. race & l. [vol. 14:1086 unrestrained support for expelling children and fining and jailing their parents because their faith precluded them from saluting the flag. without any sense of irony, as the nazi extermination of the jews was in progress, he raged on, using his jewish heritage to justify persecuting jehovah’s witnesses. to “his colleagues’ horror, the opinion began with an excursus into frankfurter’s own identity as a jew.”285 he wrote: “one who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our constitution.”286 he then justified expelling children and incarcerating their parents for their religious beliefs, showing that in fact he was utterly “insensible to the freedoms guaranteed by our constitution.”287 as one scholar correctly notes, his barnette dissent was “the most agonized and agonizing opinion recorded anywhere in the u.s. reports.”288 snyder praises frankfurter’s support of judicial restraint in barnette, endorsing the justice’s view that the courts should not interfere with democratically adopted legislation, even when it targets a minority group or young children. ignoring the massive and growing attacks on jehovah’s witnesses, snyder explains that frankfurter’s opinion “cannot be divorced from his obsession with the war [world war ii] to save civilization.”289 this may in fact have been what motivated frankfurter, but it does not really explain exactly how emulating “the ‘heil hitler’ direction,” as the herald tribune put it, and vigorously supporting religious persecution of minorities would “save civilization.” to be blunt, snyder defends a bigoted, oppressive, and utterly uncivilized opinion by absurdly claiming it was necessary to “save” civilization. while frankfurter was almost always a cheerleader for roosevelt, his barnette opinion ran totally contrary to fdr’s enunciation of the “four freedoms” in his annual message to congress (today called the state of the union address) on january 6, 1941. in that speech he asserted: [t]here is nothing mysterious about the foundations of a healthy and strong democracy. the basic things expected by our people of their political and economic systems are simple. they are: equality of opportunity for youth and for others. jobs for those who can work. security for those who need it. the ending of special privilege for the few. the preservation of civil liberties for all.290 frankfurter apparently failed to understand that if he was truly worried about saving “civilization,” he should have supported fdr’s notion that civil liberties even applied to jehovah’s witnesses. roosevelt ended the speech with what is perhaps his most enduring legacy to american liberty: 285 feldman, scorpions, supra note 13, at 229. 286 barnette at 646 (frankfurter, j. dissenting). 287 id. 288 feldman, scorpions, supra note 13, at 229. 289 snyder, supra note 4, at 419. 290 franklin delano roosevelt, annual message (four freedoms) to congress, nat. archives (jan. 6, 1941), https://www.archives.gov/milestone-documents/president-franklinroosevelts-annual-message-to-congress. https://www.archives.gov/milestone-documents/president-franklin-roosevelts-annual-message-to-congress https://www.archives.gov/milestone-documents/president-franklin-roosevelts-annual-message-to-congress 2024] the tragedy of felix frankfurter 1127 in the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms. the first is freedom of speech and expression— everywhere in the world. the second is freedom of every person to worship god in his own way—everywhere in the world. the third is freedom from want—which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants—everywhere in the world. the fourth is freedom from fear—which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor—anywhere in the world.291 frankfurter was ready to deny all these freedoms to jehovah’s witness, who were living in fear from the repercussions of his gobitis opinion, which denied them freedom of speech and religion, and severely threatened them economically, by allowing for severe fines because of their faith. frankfurter’s “solution” to the flag salute was to make jehovah’s witnesses send their children to private schools, which would have been a severe economic hardship, or an impossibility because in much of the nation there were either no private schools, or the only private schools were catholic. frankfurter ignored all these goals of the president and the nation, and weirdly, his most recent biographer does as well. thus, frankfurter’s opinion ran completely counter to the war against nazism and fdr’s truly prescient notion, in his four freedoms declaration, that the war was in part about religious liberty. you do not support that liberty, or any liberty, by persecuting religious minorities. this is something felix frankfurter never understood or believed in. snyder effusively praises the gobitis opinion for what he calls frankfurter’s “stirring conclusion about unchecked judicial power,”292 quoting frankfurter’s assertion that “[o]f course patriotism can not be enforced by the flag salute. but neither can the liberal spirit be enforced by judicial invalidation of illiberal legislation.”293 here, frankfurter admitted that the law was not only unnecessary to promote the patriotism he wanted, but that it would not accomplish that goal. thus, frankfurter was ready to expel young children from school, while fining and jailing their parents, for a meaningless law because he was blindly wedded to an abstract theory of constitutional interpretation that led to such outrageous results. had he reread stone’s footnote 4 in carolene products, frankfurter would have been able to support his theory of constitutional interpretation while also supporting fundamental civil liberties. but this did not happen. as melvin urofsky explained, “that frankfurter showed 291 id. 292 snyder, supra note 4, at 427. 293 id. (quoting frankfurter, 319 u.s. at 670). 1128 colum. j. race & l. [vol. 14:1086 consistency is admirable; that he showed absolutely no sensitivity to the need to protect unpopular speech is deplorable.”294 in his majority opinion in barnette, justice robert jackson responded to the portion of frankfurter’s gobitis opinion that compared expelling children from school to lincoln’s suspension of habeas corpus to arrest terrorists and saboteurs during the civil war: it may be doubted whether mr. lincoln would have thought that the strength of the government to maintain itself would be impressively vindicated by our confirming power of the state to expel a handful of children from school. such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning. if validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority and would require us to override every liberty thought to weaken or delay execution of their policies.295 in overturning the west virginia law, the court was not trying to “enforce” a liberal spirit, as frankfurter disingenuously claimed in his dissent, but instead trying to prevent local majorities from using their political power to oppress minorities. despite snyder’s claims that frankfurter was “prescient” in his opinions, it was jackson who was prescient. in the years following barnette, persecution of jehovah’s witnesses abated, in part because the court was no longer willing to tolerate it. within less than a decade, such persecution had completely disappeared. the lesson here is that a pro-liberty decision, such as barnette, can change minds and teach citizens and legislatures the value of supporting liberty. snyder argues that the “lasting import” of frankfurter’s support of religious persecution was “his deep skepticism about judicial power”296 and “his boundless democratic faith.”297 but once again, this misses the point that the attacks on jehovah’s witnesses were hugely popular, supported by democratically elected legislatures, and in many cases aggressively enforced by democratically elected school boards. this history suggests that frankfurter’s “democratic faith” was not justified when voters and legislators used their power to oppress the powerless.298 nor does it explain why frankfurter thought, in the middle of the holocaust, that it was legitimate for him to use his jewish heritage (which he usually ignored and rejected) to claim moral superiority in supporting religious persecution. in the end, it was the logic of justice jackson, not frankfurter’s “democratic faith” in repressive state legislatures, which ended the reign of terror against jehovah’s witnesses. 294 urofsky, felix frankfurter, supra note 3, at 58. 295 barnette, at 636. 296 snyder, supra note 4, at 425. 297 id. at 429. 298 under the theories of both snyder and frankfurter, all statutory segregation in the american south was fully justified, because it was passed by democratically elected legislatures, which determined blacks should not eat in the same restaurants as whites, sit next to them in movie theaters, stay in the same hotels with them, or marry them. 2024] the tragedy of felix frankfurter 1129 justice jackson’s final point in barnette was infinitely more stirring than frankfurter’s. it is one of the most eloquent statements on liberty in american constitutional law, which is quoted and taught far more than anything frankfurter ever said while on the court: “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. if there are any circumstances which permit an exception, they do not now occur to us.”299 two years later, justice jackson would take this philosophy, that persecution of people for their religion was unacceptable, to europe as the chief american prosecutor at the nuremberg war crimes trials. some people criticized jackson for not resigning when he accepted the role as the nuremberg prosecutor, but the difference between jackson and frankfurter is that jackson openly acted at nuremberg and his work on the war crimes trials did not appear to be something that would ever come before the court. this contrasts with frankfurter’s role in fdr’s administration after he went on the bench, which was concealed, never open, and clearly involved many issues which could (and some did) come before the court. furthermore, jackson’s role was a one-time extraordinary moment, while frankfurter’s secret role as an advisor and policy maker was on-going. apparently conceding, sub silentio, that frankfurter’s flag salute opinions were repressive, snyder claims that after barnette, frankfurter “began to adapt judicial restraint to protect minority rights.”300 this leads to the question of “why” frankfurter needed to change his jurisprudence, unless he realized he wrong. and if he was wrong, why did snyder so effusively praise these two “repressive” flag salute opinions and argue that frankfurter’s legal theory was prescient and correct? finally, in looking at his jurisprudence after barnette, it is not at all clear that he really did change his views on liberty and rights. both before and after barnette, frankfurter often supported laws aimed directly 299 barnette, at 642. 300 snyder, supra note 4, at 429. 1130 colum. j. race & l. [vol. 14:1086 at jehovah’s witnesses for no other reason than their faith.301 frankfurter was equally hostile to the claims of other religious minorities.302 three years after barnette, in 1946, frankfurter continued his jurisprudence of religious intolerance in his dissent in girouard v. united states.303 james girouard, a canadian seeking naturalization, had complied with every aspect of the oath for citizenship except one. as a seventh day adventist he was a pacifist and refused to agree that he would take up arms in defense of the nation.304 in the wake of world war ii, a majority of the court approved his right to naturalize, thereby overturning earlier precedents that denied naturalization to pacifists.305 both holmes and brandeis had dissented in those earlier cases, arguing for a more flexible approach to naturalization, that protected religious freedom. had frankfurter actually been influenced by holmes and brandeis, he would have cited their dissents in the earlier naturalization cases and quoted them to support religious liberty, thereby vindicating his hero and his mentor. instead, he dissented in girouard, arguing against citizenship for anyone who would not join the military. as he had in the flag salute cases, he once again supported religious discrimination. many scholars argue that the flag salute cases were the undoing of frankfurter. he never recovered from the scholarly opposition to his opinions, and he increasingly fought with his colleagues after these cases. frankfurter “took the reversal of his gobitis opinion as a professional and personal calamity.”306 as urofsky noted, frankfurter “personalized every battle, so that within five years he had divided his colleagues into ‘we’ and ‘they’—allies and enemies”—and “the court and its members suffered for more than two decades from the personal animosities generated by this prima donna of the law.”307 unfortunately, the rest of the nation had to suffer the increasingly anti-libertarian and sometimes racist opinions of frankfurter. this began 301 for example, see his votes and opinions in these cases which snyder ignored where frankfurter voted against the liberties of jehovah’s witnesses, often writing a separate concurrence to support prosecutions of witnesses, or writing dissents when the majority of the court supported civil liberties and religious freedom: jones v. opelika, 316 u.s. 548 (1942) (before barnette)), murdock v. pennsylvania, 319 u.s. 105 (1943) and martin v. city of struthers, 319 u.s. 141 (1943) (in the same term as barnette), and after barnette, follett v. town of mccormick, 321 u.s. 573 (1944), saia v. new york, 334, 562 u.s. 558 (1948) (frankfurter, j. dissenting), kovacs v,. cooper, 336 u.s. 77, 89 (1949) (frankfurter, j., concurring), poulos v, new hampshire, 345 u.s. 395, 415 (1953) (frankfurter j., concurring). frankfurter joined a unanimous court in largent v. texas, 318 u.s. 416 (1943), ruling on free speech grounds that the city of paris, texas could not require that jehovah’s witnesses to obtain a permit to solicit orders for religious books, and joined a dissent in prince v. massachusetts, 321 u.s. 158 (1944). he also did not support the persecution of jehovah’s witnesses is marsh v. alabama, 326 u.s. 501 (1946) (frankfurter, j., concurring). for a list of many of these cases, see laycock, a survey of religious liberty, supra note 240, at 41920. 302 see discussion infra part vii, section a. 303 girouard v. united states, 328 u.s. 61 (1946). 304 id. 305 united states v. schwimmer, 279 u.s. 644 (1929); and united states v. macintosh, 283 u.s. 605 (1931). 306 feldman, scorpions, supra note 13, at 229. 307 urofsky, felix frankfurter, supra note 3, at 63; see also hirsch, enigma of frankfurter, supra note 13, at 176. 2024] the tragedy of felix frankfurter 1131 a year after barnette, when frankfurter went out of his way, with a separate concurrence, to voice his approval for sending 120,000 japanese americans, about two-thirds of whom were american-born citizens, to concentration camps, encased in barbed wire and guarded by armed soldiers, solely because of their ethnicity. b. the japanese internment the japanese internment cases illustrate that frankfurter did not change his views on liberty and government oppression after barnette. instead, he never blinked at sending japanese americans to concentration camps—a term used to describe them by many people at the time including one member of the court308—simply because of their race,309 without any trial or evidence that they had committed any crimes or were even likely to do so.310 in the 1920s frankfurter had devoted years and enormous energy to reverse the convictions of sacco and vanzetti because their trials were unfair and they were in part being persecuted for their ethnicity and immigrant status. but in 1943 and 1944 he saw no legal problems with incarcerating american citizens and their immigrant parents (who were never allowed to naturalize because of their race) in concentration camps without any trials at all because of their ethnicity. a week after striking down the west virginia flag salute law, a unanimous court approved curfews for japanese americans, in hirabayashi v. united states.311 however, three concurring justices— justices douglas, murphy, and rutledge—expressed deep skepticism about the inherent racism of the policy, under which, as justice murphy put it, “70,000 american citizens have been placed under a special ban and deprived of their liberty because of their particular racial identity.”312 murphy noted that the policy “bears a melancholy resemblance to the treatment accorded to members of the jewish race in germany and in other parts of europe,” and that it went “to the very brink of constitutional power.”313 murphy, who had joined the court a year after frankfurter, actually wrote his opinion as a dissent, but “under pressure from his colleagues, particularly felix frankfurter,” murphy turned his opinion— which reads like a dissent—into a concurrence.314 as the leading historian 308 it is important to understand that “concentration camps” were used by the nazis for political prisoners and unwanted people—like jews, jehovah’s witnesses, and roma— well before the nazis created extermination camps like auschwitz and treblinka. in his dissent in korematsu, justice roberts asserted this was a “case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the united states. he noted the “so-called relocation centers,” was in fact “a euphemism for concentration camps.” korematsu v. united states, 323 u.s.214, 226, 230 (roberts j. dissenting) (1944). 309 korematsu v. united states, 323 u.s.214 (1944). 310 of course, being “disloyal” should not itself have mattered, as long as people did not actually break a law by acting in ways that harmed the nation. 311 hirabayashi v. united states, 320 u.s. 81 (1943). 312 320 u.s. at 111, murphy, j. concurring. murphy’s figure did not include the 50,000 or so japanese immigrants in the united states, who were prohibited from becoming naturalized citizens. ozawa v. united states, 260 u.s. 178 (1922) and chin and finkelman, the “free white persons” clause, supra note 186. 313 320 u.s. at 111, murphy, j. concurring. 314 daniels, concentration camps usa, supra note 169, at 135. . 1132 colum. j. race & l. [vol. 14:1086 of the internment noted, “had murphy’s opinion been submitted as a dissent, it would have focused a little more public light on the sweeping nature of the hirabayashi decision.”315 significantly, frankfurter’s former student, john mccloy suppressed evidence from an internal war department report, that would have undermined the government’s argument for the necessity of the curfew and the subsequent internment.316 had mccloy not suppressed this information it is entirely likely that the decision would not have been unanimous, and might even had led to a different outcome. while he often wrote separate concurrences, in hirabayashi frankfurter was silent. the decision was unanimous, so a dissent by murphy, douglas, or even frankfurter would not have changed the outcome. but had frankfurter dissented, or joined murphy’s hostile concurrence, others might have joined him. just as stone’s dissent in gobitis proved prophetic, frankfurter raising the problem of this blatant racial and ethnic discrimination might have had a real impact. while not writing an opinion in hirabayashi, frankfurter pressured chief justice harlan fiske stone to resist a suggestion by justice douglas that would have left “open the possibility of individual japanese being able to prove their loyalty.”317 frankfurter’s clerk, philip elman, believed the justice was so adamant about supporting the government in this case because of “jack mccloy, a close friend who owed his job to frankfurter.”318 as a recent history of the wartime court noted, “nobody in the senior ranks at the war department had been more responsible for fdr’s executive order 9066 [allowing for the internment], and for the military’s curfew, expulsion, and detention orders, than john j. mccloy.” 319 a year later in korematsu v. united states,320 three justices—owen roberts, frank murphy, and robert jackson (who had written the stirring majority opinion in barnette)— refused to condone the actual incarceration of japanese americans solely based on their race, without any evidence of disloyalty or acts against the interest of the united states. fred korematsu had tried to enlist when the war began, but he failed his physical. he then took a welding course to work in a defense plant. he did not report to an assembly center, as a prelude to being deported to a camp. in his dissent, justice roberts correctly asserted that this was a “case of . . . imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry. . . .”321 justice jackson also wrote an eloquent opinion denouncing the internment. 315 roger daniels, the japanese american cases: the rule of law in time of war 60 (2013). there is also evidence that justice william o. douglas was planning to dissent, but frankfurter talked him out of it. eric k. yamamoto, margaret chon, carol l. izumi, jerry kang, frak wu, race rights and reparation: law and the japanese interment 124-25 (2001). 316 wiecek, birth of the modern constitution, supra note 2, at 350. 317 id. at 351. 318 elman quoted in sloan, court at war, supra note 168, at 205. 319 id. 320 321 u.s. 214 (1944). 321 id. at 226 (roberts, j. dissenting). 2024] the tragedy of felix frankfurter 1133 rather than “adapt[ing] judicial restraint to protect minority rights” as snyder claims frankfurter did after barnette,322 in korematsu frankfurter concurred in using race and ethnicity to send united states citizens and lawful immigrants—to concentration camps.323 in barnette, frankfurter had used his jewish heritage to justify expelling students from schools and jailing their parents over a flag salute. with his european relatives being sent to concentration camps and extermination camps, he remained oddly silent on the issue of sending americans to concentration camps because of their race. here was a moment for frankfurter to speak up in favor of justice. he did not. instead, he ignored the lack of due process in the internment and felt obligated to write a separate concurrence to support sending american citizens to concentration camps, guarded by armed soldiers authorized to shoot anyone attempting to leave the camp without permission. in his opinion, frankfurter claimed that it was not his responsibility to consider this mass incarceration and washed his hands of the whole issue, asserting this was the “business of congress and the executive,” and “not ours.”324 one can only wonder why frankfurter thought it was not the business of courts to ensure that people are not rounded up and locked up without due process, a liberty which the constitution guarantees to all people. justice owen roberts had the correct answer to frankfurter’s claim. this was a “case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the united states” and there was no reason to “labor the conclusion that constitutional rights have been violated.”325 justice murphy simply noted that the internment went “over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism,” which was impermissible under the constitution.326 when working to secure due process for labor radicals during world war i, frankfurter “refused to sacrifice civil liberties and fair criminal trials in the name of patriotism.”327 but in the flag salute and internment cases, this is exactly what frankfurter did, arguing that expelling elementary school children over their religious beliefs was necessary for instilling patriotism and later concurring in sending law-abiding american citizens to concentration camps because of their ethnicity. his positions in these and other cases illustrate why most “scholars have” correctly 322 snyder, supra note 4, at 429. 323 fred korematsu was convicted of violating the evacuation orders that led to internment, but the judge suspended his sentence giving him “five years of probation.” daniels, japanese american cases, supra note 315, at 36. there was some question whether he could appeal this conviction since he was not incarcerated. both korematsu and the u.s. government believed the case was reviewable, as did eight justices. frankfurter argued from "the bench that it might not be” reviewable. id at 55. if frankfurter had had his way, korematsu would have been unable to challenge the legality of the internment and to vindicate himself. 324 323 u.s. 225 (frankfurter, j., concurring). 325 323 u.s. 226 (roberts, j., dissenting). 326 323 u.s. 233 (murphy, j., dissenting). 327 snyder, supra note 4, at 94. 1134 colum. j. race & l. [vol. 14:1086 “portrayed frankfurter as a judicial failure, a liberal turned conservative justice.”328 c. frankfurter and the holocaust in the midst of his support for the internment, frankfurter refused to use his political connections and backdoor access to the white house329 to influence something that would not likely come before the court: american policy towards the holocaust. as one scholar has noted, “supreme court justice felix frankfurter had regular access to roosevelt during the war, and he exercised a quiet but powerful influence in many sectors of the administration. although he used his contacts to press numerous policies and plans, rescue [of jews in europe] was not among them.”330 the same year that frankfurter dissented in barnette and silently joined the majority in hirabayashi, he met with jan karski, a catholic member of the polish resistance. karski briefed frankfurter on the warsaw ghetto and the system of concentration camps and sub-camps (including one he had infiltrated), which then sent jews on to the belzec death camp, where they were systematically murdered.331 karski spelled out, in precise detail, the ongoing extermination of europe’s jews. he asked frankfurter to convey this information to president roosevelt. before joining the court, frankfurter advocated removing barriers to jewish immigration to the united states.332 in 1940, he contacted everyone he could to successfully obtain the release of his eighty-two-year-old uncle, salomon frankfurter, who the nazis had jailed.333 by 1943, there was substantial evidence of the ongoing holocaust from british officials and the polish government in exile. frankfurter knew about this. karski enhanced this knowledge with his first-person account of the horrors. jan ciechanowski, the polish ambassador to the united states, was present at this meeting. but frankfurter simply rejected karski’s evidence, saying, “i do not believe you.” when ambassador ciechanowski challenged his response, frankfurter denied that he thought karski was lying. ever the law professor, he parsed his words, asserting: “i did not say he is lying; i said i don’t believe him. these are different things. my mind and my heart are made in such a way that i cannot accept it.”334 he declared, “i know humanity, i know man, no, no, it is impossible.”335 snyder simply notes “[t]he justice did not want to believe that the nazis were capable of 328 id. at 4. 329 snyder, supra note 4, at 457, 474, and 610 (discussing frankfurter’s “back door” access to the white house). 330 david s. wyman, the abandonment of the jews: america and the holocaust, 1941-1945 (1984) 316. 331 snyder, supra note 4, at 416-17. 332 id. at 226-29. 333 id. at 295-96, 417. 334 id. at 411-12. 335 annette becker, messengers of disaster: raphael lemkin, jan karski, and twentieth century genocides (2021) 4. 2024] the tragedy of felix frankfurter 1135 slaughtering jews like cattle,”336 even though, as snyder points out, he had ample evidence to know this is exactly what was happening. frankfurter’s response contrasts with snyder’s claim that his gobitis opinion was based on “hitler’s threat to exterminate europe’s jews”337 and snyder’s claim that his barnette opinion was a function of his “obsession with the war [world war ii] to save civilization.”338 given the opportunity to possibly save at least a small portion of civilization by speaking to the president, frankfurter simply denied the existence of what he knew was happening.339 frankfurter never took karski’s information to roosevelt. he refused to sit down with his old friend frank in the white house to discuss the ongoing extermination of the jews. if the persecution of jews motivated frankfurter’s repressive opinion in gobitis, as snyder claims, then we might wonder why he wasn’t similarly motivated to discuss the issue with roosevelt. what might the united states have done if frankfurter had convinced fdr to act, or had used his connections in the administration to lobby for actions that could have saved lives? the possibilities are tantalizing. frankfurter’s former student, assistant secretary of war john mccloy, who he had been in contact with throughout the war, was in a position to do something about this. american bombers, flying from airbases in the soviet union, might easily have bombed the gas chambers and crematoria at auschwitz and the other death camps and the railroad tracks leading to them. this would have slowed down the holocaust and forced germany to repair its death camp operations. as noted earlier, when jewish americans pleaded with mccloy to authorize such bombings, he categorically refused to consider it, dishonestly claiming american bombers could not reach auschwitz. if frankfurter had met with fdr on this, would his former student, mccloy, have changed his mind? similarly, in 1940 frankfurter had been instrumental in getting fdr to appoint the justice’s old boss henry l. stimson to be secretary of war.340 surely, frankfurter could have gone directly to him—mccloy’s boss—to discuss bombing auschwitz or in some other way helping to stop the holocaust. the united states might also have used neutral powers to help rescue some jews. obviously, the most effective way to finally stop the nazi genocide was to win the war, but categorically denying evidence of the final solution was hardly useful. the most recent scholarship on this issue notes that “[n]either in frankfurter’s published memoir nor in his handwritten notes is there any mention of his meeting with karski,” even though he had known of the “gassings” of jews by the nazis since late 1942.341 frankfurter refused to believe the holocaust was happening, and thus did 336 snyder, supra note 4, at 417. 337 id. at 353. 338 id. at 419. 339 in early 1933 frankfurter was aware of the increasing danger for jews in germany and had access to meaningful information about what was happening there. but frankfurter declined to discuss the rising antisemitism and threats to jews with fdr. snyder, supra note 4, at 227-29. 340 smith, fdr, supra note 41, at 450. 341 becker, messengers of disaster supra note 335, at 12-13. 1136 colum. j. race & l. [vol. 14:1086 not bother to discuss it with the president, secretary of war stimson, the assistant secretary, mccloy, bother to record it in his many notes, or recall in his memoir how he learned about it from an eyewitness. when confronted with the catastrophe of the holocaust, frankfurter did nothing. these three examinations of frankfurter during the war illustrate his stubbornness in the face of facts on the ground, such as the persecution of jehovah’s witnesses, japanese americans, and european jews. they underscore the correctness of the general scholarly consensus that frankfurter was a failure as a judge and that once he went on the bench, he lost his commitment to life, liberty, and justice. vi. the “democratic justice,” his brethren, and the problem of ethics frankfurter served on the supreme court from 1939 to 1962. while frankfurter is most famous for this high office, frankfurter’s service on the court was the least successful part of his life. he initially served on a court with a moderate to liberal majority, with most of his colleagues nominated or elevated, like chief justice stone, by fdr or his hand-picked successor, harry truman. in the 1950s, they were joined by eisenhower’s greatest federal appointments, chief justice earl warren and associate justice william j. brennan. even some of the more conservative members of the court, like justices robert jackson, tom clark, and potter stewart, were sensitive to individual rights. this was a court that seemed “made” for frankfurter, populated by smart, hardworking civil libertarians and progressives. as the famous “professor” on the court, he had a grand opportunity to be a progressive leader. indeed, he could have been the leader of a court, at least from 1939 to 1954, that might have been called “the frankfurter court,” the way william j. brennan became the leader of the court under chief justice william rehnquist.342 but unlike brennan, frankfurter was often in petty conflicts with one after another of his fellow justices. throughout his years on the court, he was arrogant, stubborn, often non-collegial, and sometimes simply nasty. he tried to dominate every discussion while often lecturing his brethren. he had “boundless self-confidence” but also boundless “self-esteem.”343 indeed, “his conduct on the court, his self-defeating and isolating relations with his brethren,” in the end “obstructed” his jurisprudential goals.344 he bragged about his intelligence, telling justice stanley reed that his years as a professor made him a better judge than chief justice charles evans hughes.345 as one scholar noted, “such cocksure chutzpah served him badly in the collegial relationships of the court.”346 furthermore, frankfurter did not understand brennan’s notion of the “the rule of five,”347 that a justice must find four more votes to shape an opinion. 342 see mark tushnet, themes in warren court biographies, 70 n.y.u. l. rev. 748 (1995). 343 wiecek, birth of the modern constitution, supra note 2, at 89. 344 burt, two jewish justices, supra note 3, at 53. 345 wiecek, birth of the modern constitution, supra note 2, at 89. 346 id. 347 id. at 763. 2024] the tragedy of felix frankfurter 1137 he could clearly mentor and act as a guiding professor to young men (but not young women, like ruth bader ginsburg), and he could ingratiate himself with more powerful men, such as henry stimson, oliver wendell holmes, jr., louis d. brandeis, teddy roosevelt, and franklin d. roosevelt. but, frankfurter was never able to collaborate with most of his colleagues. that frankfurter wrote more dissents than majority opinions and felt the necessity of persistently concurring, often to disagree with his colleagues even if he accepted the outcome of a case, illustrates his failure to build coalitions and majorities to achieve his jurisprudential goals. frankfurter’s heroes, holmes and brandeis, often dissented on a reactionary court led by the “four horsemen of the apocalypse”—justices pierce butler, james clark mcreynolds, george sutherland, and willis van devanter—who were bolstered by the deeply conservative chief justice william howard taft. but frankfurter dissented from liberal outcomes that many assumed he would have supported. this underscores that this liberal activist of the 1920s and 1930s morphed into a conservative and even a reactionary. often noted for his gregarious charm, frankfurter privately wrote snide comments about his fellow justices, calling them by snarky nicknames while denigrating their intelligence and honesty, especially if they did not vote as he did. as one perceptive biographer noted, “frankfurter would mentally divide his colleagues into three categories— adversaries, allies, and potential allies. he would react to adversaries as he had throughout his life—with heated anger and frustration, with attacks on their integrity and motives, with a search for vindication.”348 during world war ii, in private memos, he called those who disagreed with him “the axis”—as though justices hugo black, william o. douglas, and frank murphy were nazis—and he absurdly accused justice douglas of anti-semitism, merely because frankfurter hated him.349 in the 1950s he would add chief justice earl warren and justice william j. brennan to his list of enemies,350 comparing “the civil libertarian bloc of warren, black, douglas, and brennan to the conservative four horsemen of the 1920s.”351 the comparison truly boggles the mind. the justice who had begun his legal and academic career crusading for civil liberties, due process, and protection of minorities—who seemed to be destined to become an icon of american liberty—ended his years on the court as an intractable opponent 348 hirsch, enigma of frankfurter, supra note 13, at 177. frankfurter’s former clerk noted that the justice referred to his colleges and others in private conversation and notes with various nicknames, some of which belittled them as though they were country bumpkins from rural places or make fun of their core beliefs, such as justice frank murphy’s catholicism: “douglas was yak or yakima, because he came from yakima, washington. hugo black was lafayette, his middle name. stone was vermont. hughes was whiskers. minton was shay. stanley reed was the chamer, which means fool, or dolt, or mule in hebrew; now that might be very difficult for somebody to decipher. the others wouldn't have been. murphy was the saint. roberts was the squire. he was the country squire. jackson was jamestown, the town in upstate new york that jackson came from. francis biddle, the attorney general, was frawn-cis.” philip elman, solicitor general's office, justice frankfurter, and civil rights litigation, 1946-1960: an oral history, 100 harv. l. rev. 817, 844 (1987). this interview was conducted by norman silber. 349 indeed, as i will discuss below, douglas was far more sensitive to the liberty issues of jews than frankfurter. 350 hirsch, enigma of frankfurter, supra note 13, at 180. 351 snyder, supra note 4, at 649. 1138 colum. j. race & l. [vol. 14:1086 of jurists like brennan, warren, douglas, and black, who are remembered as icons of liberty, civil rights, and equal justice for all. justice frankfurter was far too often on the wrong side of history, the wrong side of the law, and the wrong side of liberty. justices make mistakes, but the great ones will admit them, either explicitly—as black, murphy, and douglas did in barnette after having been in the majority in gobitis—or by silently changing their jurisprudence, as holmes and brandeis did when they reversed their anti-free speech positions starting with abrams.352 holmes and brandeis never explicitly recanted their position in schenck, but starting in the fall of 1919, they consistently supported free speech while eviscerating the idea that peaceful opposition to government policies should be punished.353 they managed to distinguish every subsequent free speech case from schenck. frankfurter, on the other hand, seems to have never changed his mind. as i mentioned earlier, most of the people who mattered to frankfurter roundly condemned his gobitis opinion. three years later, when given the opportunity to back away from his repressive gobitis opinion, frankfurter doubled down to support expelling children from schools. the contrast with holmes and brandeis after schenck, when they reversed course, is striking. in addition to his inability to get along with his colleagues and his stubborn refusal to ever admit a mistake while on the court, frankfurter violated numerous ethical rules and practices without batting an eye while condemning other justices for less egregious behavior. as already noted, while on the court, frankfurter remained one of fdr’s closest advisors. with “back door” access to the president, entering the white house without any record of his comings and goings, he discussed “wartime policy making and recruitment efforts on behalf of the roosevelt administration.”354 indeed, frankfurter seemed to think he was still working for the president while on the court. his law clerk, philip elman, recalled that when the court heard hirabayashi frankfurter “saw himself as a member of the president’s war team.”355 the distinguished constitutional historian 352 see holmes’s opinions in schenck v. united states, 249 u.s. 47 (1919): frohwerk v. united states, 249 u.s. 204 (1919); and debs v. united states, 249 u.s. 211 (1919). on the immediate scholarly pushback from these opinions, see zechariah chafee, jr. freedom of speech (1920). 353 abrams v. united states, 250 u.s. 616 (holmes, j. dissenting); gitlow v. new york, 268 u.s. 652 (1925) holmes, j. dissenting; and whitney v. california, 274 u.s. 357 (1927) (brandeis, j. concurring). while technically concurring in whitney because of the procedural posture of the case, brandeis’s eloquent defense of free speech is a stirring dissent in opposition to the majority’s anti-free speech position. for background to these cases, see richard polenberg, fighting faiths: the abrams case, the supreme court, and free speech (1987) and murphy, world war i, supra note 106. 354 snyder, supra note 4, at 353. he also stayed with fdr at hyde park. id. at 24041. 355 elman quoted in sloan, court at war, supra note 168, at 205. in his oral history elman recalls that in the wake of pearl harbor frankfurter told elman, who was then his clerk, that he (frankfurter) “was going to have to devote his full energies to helping in the war effort, to helping fdr. that would be his overwhelming priority, to which everything had to yield.” norman i. silber, with all deliberate speed: the life of philip elman, an oral history memoir 83 (2004). this attitude seems to have led to his unrestrained support of the internment and for suppressing jehovah’s witnesses, since frankfurter articulated that denying them religious liberty was central to creating the patriotism necessary to win the war. 2024] the tragedy of felix frankfurter 1139 william m. wiecek notes that frankfurter “was not the first supreme court justice to advise presidents on affairs of state. but few have done so as extensively as he, and his consultative activities often posed ethical questions that would have troubled someone with a lesser capacity for selfexoneration.”356 additionally, it seems likely he also discussed other policies including the constitutionality of planned legislation. indeed, given frankfurter’s personality, it is inconceivable that he did not discuss these issues with the president. while on the bench, he remained in constant contact with many of his former students working in the government, advising them on legislation, policymaking, and the law. we know he talked to john mccloy when he was planning the japanese internment, but it seems likely that he also talked to the president. this in part may explain frankfurter’s unconscionable support for sending innocent people to concentration camps purely because of their race. in korematsu, frankfurter specifically concurred in what justice murphy called a policy that goes “over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism.”357 on his many unrecorded visits to the white house, frankfurter ignored separation of powers, giving fdr legal and/or political advice and then ruling on these issues from the bench. since 1793, when john jay refused to give president george washington an advisory opinion on pending legislation,358 the court has insisted that its members cannot give advice to the executive branch or congress. similarly, justices should never discuss cases with parties that might someday come before the court. they are not lawyers who give advice, and they must stay away from such activity. frankfurter ignored these rules throughout his time on the court. in addition to the president, frankfurter gave others legal advice which was ethically and legally problematic. frankfurter advised and coached his former student alger hiss and his lawyers when it seemed clear that hiss’s legal problems surrounding his communist past would lead him to a federal court and possibly an appeal to the supreme court.359 frankfurter’s ethically questionable behavior did not come to light at the time only because hiss never appealed to the court. during the hiss controversy, frankfurter used a third party to try to pressure the great journalist edward r. murrow to stop reporting on hiss and “keep his mouth shut.”360 frankfurter publicly defended hiss’s honesty and character. but significantly more than a decade earlier “frankfurter began to overlook hiss’s small deceptions.”361 this tells us a lot about frankfurter, and to be blunt, it is not pretty. the hiss case again raises the issue of frankfurter’s “eye for talent” that snyder incessantly praises.362 mentors can easily misjudge the skills 356 wiecek, birth of the modern constitution, supra note 2, at 91. 357 323 u.s. 233 (murphy, j., dissenting). 358 john jay to george washington, august 8, 1793, available at: https://presspubs.uchicago.edu/founders/documents/a3_2_1s34.html. 359 snyder, supra note 4, at 528. 360 id. at 534. 361 id. at 526. 362 id. at 229, 224. https://press-pubs.uchicago.edu/founders/documents/a3_2_1s34.html https://press-pubs.uchicago.edu/founders/documents/a3_2_1s34.html 1140 colum. j. race & l. [vol. 14:1086 or abilities of their students. but we must wonder why frankfurter pushed hiss forward when, as snyder demonstrates, he had reason to doubt hiss’s honesty, because of his “deceptions.” there are also profoundly serious ethical questions when a supreme court justice tries to prevent a reporter from covering a story. snyder notes that the hiss case “tested” frankfurter’s loyalty to someone he called “one of the very best men we have in many a day.” but his support for hiss also tested his judicial ethics, and here he clearly failed the test. frankfurter’s loyalty to his student was honorable, but giving hiss legal advice was surely questionable and his attempt to intimidate a reporter certainly crossed an ethical line. frankfurter was a character witness for hiss in his perjury trial. there, frankfurter asserted hiss’s “reputation” for “loyalty and veracity” was “excellent.”363 but if frankfurter had long before this known of “hiss’s small deceptions,”364 his testimony under oath, vouching for hiss’s character and honesty, might have constituted perjury. the era of mccarthyism and the red scare of the early 1950s was a horrible period in united states history. many people were heroic, and others were not. these were tough times. as a sitting justice, frankfurter should have declined to testify at hiss’s trial, explaining that as a sitting justice it would be inappropriate for him to testify. that he did not decline to testify says something about his loyalty to a student, but it also says much about his arrogance and his lack of judicial ethics. that he was less than honest in his testimony, vouching for hiss’s integrity when he knew hiss was dishonest, tells us much about frankfurter’s character. the hiss case underscores the limits of frankfurter’s “eye for talent,” as well as his judicial ethics. perhaps the problem is that “talent” in frankfurter’s eye did not include “character” or “honesty.” that conclusion may help us understand frankfurter’s slippery notions of judicial ethics. the ethics issue becomes clearer in the case of john s. service, a career state department officer whom senator joseph mccarthy wrongly accused of disloyalty and being a communist sympathizer.365 under strong political pressure, secretary of state dean acheson, frankfurter’s protégé and former student, fired service without any due process or evidence of wrongdoing. frankfurter privately discussed the firing with acheson before it happened. eventually, the case came to the supreme court.366 by this time acheson was no longer secretary of state. the other justices were aware of frankfurter’s earlier discussions with acheson and their close friendship. justice william o. douglas urged frankfurter to recuse himself because of the clear impropriety of his ex parte conversations with acheson. this was not an attempt to change the outcome of the case. ultimately the court unanimously supported service, who was reinstated in the state 363 id. at 532. 364 id. at 526. 365 unfortunately, snyder provides none of the background to this case. see lynne joiner, honorable survivor: mao's china, mccarthy's america, and the persecution of john s. service (2009); see also ronald radosh and harvey klehr, the amerasia spy case: prelude to mccarthyism (1996). 366 service v. dulles, 354 u.s. 363 (1957). https://archive.org/details/honorablesurvivo00join https://archive.org/details/honorablesurvivo00join 2024] the tragedy of felix frankfurter 1141 department. the recusal issue was simply a matter of basic judicial ethics and douglas’s view was that the justice should avoid an appearance of impropriety. it is a view that every jurist should take very seriously. frankfurter stubbornly refused to recuse himself. the ethical issue here is not even close. a judge cannot give advice to a party and then later adjudicate the case. snyder dismisses this clear—even outrageous—breach of judicial ethics by simply claiming “frankfurter’s friendship with acheson did not stop him from voting against the state department.”367 such an answer would doubtless lead to a failing grade in a legal ethics course. snyder implies that frankfurter’s vote for service is a rebuke of acheson, but that may not be the case. for all we know, frankfurter urged acheson to protect his political career by firing service, assuring him that the supreme court would “make it right” in the end, as in fact the court did. the issue here is not “all’s well that ends well,” but rather frankfurter’s clear violation of judicial ethics, his obvious “appearance of impropriety,” and his stubborn refusal to recuse himself in a case where his vote truly did not even matter. the case underscores frankfurter’s inability to exercise enough restraint to not meddle in politics or legal cases while on the bench and his refusal to recuse himself when he did. the service case also illustrates frankfurter’s own set of double standards. chief justice fred vinson almost certainly, and improperly, discussed the steel seizure case with president truman.368 these conversations certainly violated the concept of separation of powers. frankfurter was furious when he learned this, as he ranted to justice jackson about vinson’s breach of ethics. the two cases underscore frankfurter’s double standards for judicial behavior. when frankfurter discussed a case with a party, as in the service case, he would not even consider recusing himself. similarly, frankfurter not only voted on the internment cases but wrote a concurring opinion in korematsu, after discussing the internment with mccloy and probably roosevelt. in addition to acheson, frankfurter met with lower-level executive branch officers to lobby for particular policies or to weigh in on them. in other words, while furious at vinson, frankfurter did the same thing more often than vinson.369 a final example of the nature of frankfurter’s lack of ethical boundaries concerns brown v. board of education. in the period leading up to the oral argument in the fall of 1953, frankfurter had numerous private conversations with his former law clerk, philip elman. at the time elman was writing an amicus brief for the united states government in support of desegregation. frankfurter told elman his fears about not getting a strong majority to strike down segregated schools, and elman incorporated into his brief some of frankfurter’s suggestions on how to persuade other justices to join the majority opinion.370 frankfurter later said that elman 367 snyder, supra note 4, at 628. 368 youngstown sheet & tube co. v. sawyer, 343 u.s. 579 (1952); snyder, supra note 4, at 557-58, 569. 369 snyder, supra note 4, at 557-58, 569. 370 id. at 573; silber, with all deliberate speed, supra note 355, at 219-27. 1142 colum. j. race & l. [vol. 14:1086 was the “real strategist of the litigation” who “proposed what the supreme court finally decreed, namely that the court should not become a school board for the whole country.”371 elman later admitted that these “ongoing private conversations with the justice” and his sharing of parts of the brief, were problematic, but argued that the case “transcended ordinary notions about propriety in litigation.”372 we can easily imagine why a young justice department lawyer deeply committed to fighting segregation, relished the chance to develop his strategy with the help of a sitting justice, who would soon hear the case. elman was no doubt delighted that justice frankfurter gave him “confidential information about his [frankfurter’s] and his colleagues' views on the case, brown v. board of education, information that inspired mr. elman to write a crucial argument into the justice department's brief.”373 thus, elman recalled he and the justice “fully discussed” the case and that in brown “’i knew everything, or at least he gave me the impression that i knew everything, that was going on at the court. he told me about what was said in conference and who said it.’” 374 while understanding why elman had these improper conversations, we cannot understand why frankfurter, or any justice, would secretly help one side of a case in ways that were utterly improper. the ethical issues here are not even close. a sitting jurist has absolutely no business revealing the private discussions of a judicial conference. this also violates well established judicial and legal ethics when a judge in a case has ex parte discussions with an attorney about the brief the attorney is writing.375 vii. the anti-democratic justice: from world war ii to the cold war after world war ii frankfurter continued to have a mixed (at best) record on civil liberties and civil rights. snyder argues that frankfurter’s commitment to “democracy” and civil liberties guided his jurisprudence. however, in addition to the flag salute and internment cases, a number of frankfurter’s opinions illustrate the problematic nature of this claim. these include cases involving: a) laws requiring that orthodox jews close their businesses on sundays; b) flagrant examples of segregation and racism in which frankfurter defended the racial status quo; and c) the gross malapportionment of state legislative districts, which made a mockery of “democratic” representation. in many of these cases frankfurter supported existing laws and government policies that were 371 silber, with all deliberate speed, supra note 355, at 223-24. we might argue that this outcome undermined integration and led to years of delay as southern states used this tepid approach to integration to prevent it. 372 silber, with all deliberate speed, supra note 355, at 223. 373 stuart taylor, jr., key 1954 bias case: a drama backstage, new york times (mar. 22, 1987), https://www.nytimes.com/1987/03/22/us/key-1954-bias-case-a-dramabackstage.html?unlocked_article_code=1.je4.8vnx.xyz62ixssnaq&smid=url-share. 374 id. 375 it is worth noting that when the story of these events became public, it was reported on the front page of the new york times. id. https://www.nytimes.com/1987/03/22/us/key-1954-bias-case-a-drama-backstage.html?unlocked_article_code=1.je4.8vnx.xyz62ixssnaq&smid=url-share https://www.nytimes.com/1987/03/22/us/key-1954-bias-case-a-drama-backstage.html?unlocked_article_code=1.je4.8vnx.xyz62ixssnaq&smid=url-share 2024] the tragedy of felix frankfurter 1143 fundamentally undemocratic. in these cases, he often supported states’ rights over civil rights, civil liberties, and political fairness. a. the sunday closing cases in 1961 the court heard four cases dealing with sunday closing laws.376 here frankfurter wrote one of the longest opinions of his career— eighty-four pages plus two appendices covering another sixteen pages.377 frankfurter’s opinion illustrates just how reactionary he had become and how insensitive he was to the liberties of minorities. his opinion in these cases undermines snyder’s claim that, after barnette, frankfurter “began to adapt judicial restraint to protect minority rights.”378 on the contrary, in the sunday closing cases, which snyder’s biography does not even mention much less discuss, frankfurter spent enormous energy to justify laws that blatantly discriminated against a small minority of americans— orthodox jews, seventh-day adventists, and members of a few other sabbatarian christian denominations.379 the cases challenged maryland, pennsylvania, and massachusetts laws requiring most, but not all,380 businesses to remain closed on sundays. massachusetts, for example, allowed sunday sales of wholesale chickens or cooked chickens in a restaurant, but not chickens sold by a kosher butcher. it was legal to sell live bait to anglers and wholesale fish to restaurants and grocery stores, but not gefilte fish.381 one provision of the massachusetts law provided exemptions for some businesses operated by anyone except christian sabbatarians and observant jews. the law stated that it did not apply to “the retail sale [on sundays] of tobacco in any of its forms by licensed innholders, common victuallers, druggists and newsdealers whose stores are open for the sale of newspapers every day in the week.”382 in other words, a mainstream christian or an atheist who sold newspapers and tobacco monday through saturday was permitted to make the same sales on sunday. but a seventh-day adventist or an observant jew, who sold the same products on monday through friday, but for religious reasons was closed on saturday, was prohibited from selling 376 braunfeld v. brown, 366 u.s. 398 (1961); mcgowan v. maryland, 366 u.s. 420 (1961) two guys from harrison-allentown, inc. v. mcginley, 366 u.s. 582 (1961); gallagher v. crown kosher supermarket of massachusetts, 366 u.s. 617 (1961). 377 mcgowan v. maryland, 366 u.s. 420, 459 (1961) (frankfurter, j. concurring and appendix i, 543-550; and appendix ii, 551-559). 378 snyder, supra note 4, at 429. 379 in girouard v. united states, 328 u.s. 61 (1946), frankfurter had also demonstrated his willingness to persecute seventh day adventists. 380 maryland allowed the sale of, among other things, confectioneries, tobacco products, newspapers, periodicals, boating accessories, flowers, and souvenirs. mcgowan at 420; massachusetts allowed, among other things, professional and amateur sporting events (both outdoors and indoors) and the operation of businesses engaged in golf; tennis; the showing of “motion pictures;” the sale of “live bait for noncommercial fishing;” renting horses, carriages, boats, and bicycles; “the printing, sale and delivery of newspapers;” the wholesale sale of fresh fish and dressed poultry; the making of cheese and butter; the transportation of livestock to fairs and sporting events; “bowling and games of amusement where prizes are awarded;” amusement parks; beach resorts; digging for clams; the sale of art at exhibitions; “conducting of private trade expositions;” and the sale of alcoholic beverages, as long as they were not taken off the premises. gallagher at 619-22. 381 mcgowan at 420; gallagher at 619-22. 382 braunfeld at 636. 1144 colum. j. race & l. [vol. 14:1086 anything on sunday. to add insult to this injury, the law specified that these prohibitions applied to the “lord’s day,” which of course was not the “lord” for jews or the “lord’s day” for jews or christian sabbatarians.383 two of the sunday closing cases, braunfeld v. brown384 and gallagher v. crown kosher supermarket,385 involved orthodox jews, whose beliefs required them to be closed on saturday. thus, they opened on sundays, so, like other businesses, they could operate six days a week. the court upheld all of these laws and the convictions of the offending business owners.386 frankfurter wrote his own massive one-hundred-page concurrence supporting all of these sunday closing laws. douglas, brennan, and stewart dissented in the two cases involving observant jews. braunfeld, who operated a small clothing store, asserted that he would “be unable to continue in his [retail] business if he may not stay open on sunday.”387 presumably, frankfurter did not care if braunfeld suffered for his faith, or maybe he believed braunfeld should have just taken on a nonjewish employee to run the business on saturday. as in the flag salute cases, frankfurter was perfectly willing to allow the states to impose an economic cost for people of faith, giving jehovah’s witnesses the choice of violating their religion or paying for private schools, and forcing observant jews to choose between their faith and their livelihood. crown kosher was even more problematic. the market sold kosher food. most of its customers were observant jews. under jewish law, the store would not have been kosher if it had opened on saturday, whether operated by a jew or a non-jew. furthermore, the observant jewish customers could not have shopped on saturday. however, if the store were not open on sundays, observant customers who worked a traditional fiveday-a-week job would have had difficulty buying food.388 justice william j. brennan, a roman catholic, dissented, noting that the “effect” of such laws “is that no one may at once and the same time be an orthodox jew and compete effectively with his sunday-observing fellow tradesmen.” brennan argued that “this state-imposed burden on orthodox judaism” was unconstitutional.389 he noted that the law had “exactly the same economic effect as a tax levied upon the sale of religious 383 id. 384 braunfeld v. brown, 366 u.s. 398 (1961). 385 gallagher v. crown kosher supermarket of massachusetts, 366 u.s. 617 (1961). 386 douglas laycock suggests that “the court up-held sunday closing laws on the ground that they functioned more as a restraint of trade than as an establishment of religion.” douglas laycock, the many meanings of separation, 70 u. chi. l. rev. 1667, 1696 (2003). 387 braunfeld, 366 u.s. at 599. 388 arguably, someone should have made a free exercise claim in crown kosher on behalf of the observant jews who were deprived of their one non-working day to buy groceries. this claim might have noted that people who did not keep kosher had many opportunities to buy food of various kinds in massachusetts on a sunday, but observant jews could not. such a claim might not have been successful, but it should have been made. or, frankfurter might have made such an argument if he had been inclined to protect the rights of jews or other religious minorities, but there is nothing in his jurisprudence that suggests he had any such inclinations. 389 braunfeld v. brown, 366 u.s. 398, 613 (1961) (brennan, j. dissenting). 2024] the tragedy of felix frankfurter 1145 literature,” which the court had struck down.390 two protestant justices, potter stewart and william o. douglas (whom frankfurter called an antisemite), also defended the rights of jews. frankfurter was over-the-top in supporting this discrimination against jews with a massive eighty-four-page concurrence in mcgowan v. maryland, followed by a seven-page appendix listing all colonial and postrevolutionary war sunday laws (when most colonies and many of the new states had official churches) and a second nine-page appendix of all current statutes on this issue. he provided these lists to defend his support for a law titled “observance of the lord's day,” making the traditional christian sabbath an “official” state holiday, while irreparably harming observant jews and christian sabbatarians.391 clearly frankfurter felt compelled to justify to himself, and to the world, why he continued to support laws which discriminated against religious minorities.392 frankfurter’s narrow notion of “democracy,” that almost anything a state legislature passed was constitutional, left no space to protect minorities, except in some (but not all) cases involving discrimination against african americans. he saw no constitutional problem with massachusetts requiring that all business owners close (except those that were exempt, such as bait stores, bakeries, and some stores that sold tobacco) in “observance of the lord’s day.” he cited colonial and early american statutes to support his claim. it was as though, in frankfurter’s mind, nothing in constitutional law, except equal protection for african americans, had changed since 1787 or 1791. as with jehovah’s witnesses or japanese americans, frankfurter had no interest in protecting fundamental liberties of minorities. frankfurter was too ill to hear the last few cases of 1962, including the school prayer case, engle v. vitale.393 without any evidence or even a footnote, brad snyder asserts that “given his votes in favor of separation of church and state,” frankfurter would have voted to strike down school prayer.394 perhaps this is true, since he had favored separation of church and state in cases involving religious instruction in public schools or the state spending money on school buses to help parochial schools.395 but he 390 id., citing follett v. town of mccormick, 321 u.s. 573 (1944). in passing, it is worth nothing that follett involved a tax directed at jehovah’s witnesses who went door-todoor seeking converts. the court struck down the tax, but frankfurter dissented, refusing to consider that the law was a form of religious persecution. follett at 579. at least frankfurter was consistent in his support for the persecution of religious minorities by local governments. 391 mcgowan v. maryland, 366 u.s. 420, 459 (1961) (frankfurter, j. concurring in appendix i, 543-550; and appendix ii, 551-559). 392 curiously, robert burt’s book on the intersection between frankfurter’s career and his jewish background does not mention the sunday closing cases. nor does snyder mention them in his book. burt notes that frankfurter grew up as an observant jew but abandoned all religious practice when he was a junior in college. burt, two jewish justices, supra note 13, at 38-39. it seems likely that frankfurter felt compelled to show how “neutral” he was to issues involving jews (or to distance himself from his upbringing) with his opinion in these cases. 393 370 u.s. 421 (1962). 394 snyder, supra note 4, at 699. 395 mccollum v. board of education, 333 u.s. 203 (1948). everson v. board of education of ewing township, 330 u.s. 1 (1947); zorach v. clauson, 343 u.s. 306 (1952). 1146 colum. j. race & l. [vol. 14:1086 might also have supported school prayer, just as he supported sunday closing laws, which directly merged church and state by making the traditional christian sabbath an official state holiday, and furthermore punished anyone who did not observe that religious holiday according to the dictates of the state. similarly, in his opinions upholding laws requiring children to violate their own faith to salute the flag he argued that the state could require children to openly violate their religion and punish children and their parents if they refused. he might have written a long appendix, as in the sunday closing cases, pointing out that colonial-era and nineteenth-century schools had prayers and protestant bible readings. he might also have asserted that amid the cold war, children should be forced to pray for the country, just as he believed they should be forced to salute the flag during world war ii. modern scholars might want to think frankfurter would have voted to strike down school prayer, but we cannot know, and the evidence is at best murky. in the context of the flag salute and sunday closing cases (which snyder never discussed), it is likely that frankfurter would have supported an official prayer, just as he supported the christian sabbath or lord’s day. b. racial justice, segregation, civil rights, and policing frankfurter’s record on racial equality was sometimes progressive and smart, and sometimes not. he played an important role, but not the key role, in obtaining a unanimous decision in brown v. board of education.396 the key player was chief justice earl warren, whom frankfurter disliked, in part because he wanted to be chief justice.397 frankfurter’s landmark 1960 opinion in gomillion v. lightfoot398 struck down new boundaries for the city of tuskegee, alabama that were explicitly created to exclude almost every african american from the city to prevent them from voting in municipal elections. however, this was his only important majority opinion in a civil rights case in his entire career. frankfurter’s relationship to race and civil rights was mixed. sometime after 1929, he began to serve as an advisor to the naacp at the personal request of the organization’s general secretary, walter white.399 he served as an advisor but never took any compensation. when he went on the court, he terminated this relationship, as he did others, including his membership in the american bar association and the harvard club.400 as noted above, in the early 1940s he asserted that “when a priest enters a monastery, he must leave—or ought to leave—all sorts of worldly desires behind him. and this court has no excuse for being unless it's a monastery.”401 but, while terminating his formal relationships with institutions and organizations, frankfurter did not terminate his far more 396 347 us 483 (1954). 397 see generally, richard kluger, simple justice (rev. ed., 2004) (1975). 398 364 u.s. 339 (1960). 399 walker, in defense of american liberties, supra note 3, at 90. kluger, simple justice, supra note 390, at 133. 400 justice describes former n.a.a.c.p. tie, n.y. times, september 30, 1958. https://www.nytimes.com/1958/09/30/archives/justice-describes-former-naacp-tie.html 401 frankfurter diaries quoted in melvin i. urofsky, conflict among the brethren, supra note 234, at 101-02. https://www.nytimes.com/1958/09/30/archives/justice-describes-former-naacp-tie.html 2024] the tragedy of felix frankfurter 1147 ethically problematic informal political relationships with presidents, cabinet members, or major players in federal agencies. in his early years at harvard law school, frankfurter mentored charles hamilton houston while he took his ll.b.402 and then was his advisor when houston continued on for his s.j.d. frankfurter later mentored william henry hastie, houston’s cousin, who also did an s.j.d. under frankfurter and would eventually become the first black federal judge in the united states. houston and hastie were also the first blacks to serve as editors on the harvard law review.403 frankfurter also connected his former law student nathan r. margold to houston, and working together they developed a long-range strategy to challenge school segregation.404 frankfurter’s work with houston may have been his greatest contribution to civil rights because his former student went on to be the vice dean at howard law school, the mentor of thurgood marshall and other important civil rights attorneys, and the first director of the naacp legal defense fund (ldf), which would eventually win brown and almost all of the other major civil rights cases.405 although he never litigated civil rights cases, in the 1920s and 1930s frankfurter mentored the first generation of twentieth century black civil rights lawyers, while giving excellent advice to the naacp. this record should have led frankfurter to be the court’s greatest advocate of racial equality since john marshall harlan, who sat from 1877 to 1911. in his first decade and a half on the court, frankfurter joined majority opinions (but never wrote any) generally supporting civil rights; chipping away at segregation in transportation, higher education, voting, and housing; and protecting the due process rights of african americans, usually from southern injustice. often these cases were unanimous. from the early 1940s to the mid-1950s, frankfurter was generally, but not always,406 supportive of claims that challenged segregation and racism. however, as noted above, he dissented in decisions supporting civil rights in cases involving police brutality and provided the fifth vote to impose the death penalty in the willie francis case. frankfurter supported civil rights in cases involving black litigants who had been denied fair trials,407 striking down a restrictive covenant that barred the sale of land to an african american,408 and overturning convictions where african americans or mexican americans were excluded 402 what today would be called a j.d. 403 richard kluger, simple justice, supra note 390, at 116-17, 133-37, 156-58. 404 id. 405 on houston, see genna rae mcneil, groundwork: charles hamilton houston and the struggle for civil rights (1983). 406 for example, in feiner v. new york, 340 u.s. 315 (1951), he joined the majority in upholding the conviction of a white college student for a public speech attaching racism. 407 chambers v. florida, 309 u.s. 227 (1940) (overturning a racially charged conviction where there had been coerced confessions). 408 hansberry v. lee, 331 u.s. 32 (1940). this case is usually taught as a civil procedure case, but the facts and substance were about race. frankfurter was also part of a unanimous court in shelly v. kraemer, 334 u.s. 1 (1948) and hurd v. hodge, 334 u.s. 24, 36 (1948) (frankfurter, j., concurring), which struck down restrictive covenants in housing under state law and in the district of columbia. 1148 colum. j. race & l. [vol. 14:1086 from jury service.409 frankfurter supported using the interstate commerce act to prohibit segregation on interstate trains and protecting african americans who refused to be segregated on trains.410 he agreed that all voters, including african americans, had a constitutional right to vote in primaries for congressional seats411 and voted to overturn a texas law denying black americans the right to vote in the democratic primary.412 he also supported integrating state graduate and professional schools as part of a unanimous court.413 most importantly, he was part of the unanimous court in brown v. board of education,414 brown’s companion case bolling v. sharpe,415 and a less well-known case that ordered the city of louisville, kentucky to integrate its public golf course.416 he joined the unanimous per curiam opinion upholding a lower court ruling that segregation on buses in montgomery, alabama (and by extension everywhere else in the south) was unconstitutional, which overturned the precedent in plessy v. ferguson.417 he was also part of the unanimous court preventing the state of alabama from prohibiting the naacp from operating in that segregated state.418 during this period, he also supported decisions dismantling california’s long history of discriminating against japanese immigrants and their children in land ownership or obtaining various commercial licenses.419 409 smith v. texas, 311 u.s. 128 (1940); hernandez v. texas, 347 u.s. 475 (1954). in another case, frankfurter joined douglas and black in dissenting when the supreme court denied death row inmates a rehearing in federal court, despite claims of racial discrimination in jury pools and another claim that the conviction was based entirely on race discrimination. brown v. allen, 344 u.s. 443 (1953) (frankfurter, j. dissenting). 410 mitchell v. united states, 313 u.s. 80 (1941) and morgan v. virginia, 328 u.s. 373 (1946). in bob-lo excursion co. v. michigan, 333 u.s. 28 (1948), frankfurter joined a seven-vote majority to uphold a state law prohibiting segregation, rejecting an argument by bob-lo that under various nineteenth century cases, the state could not regulate its boats because they carried passengers from michigan to canada. he also supported integration on railroads in henderson v. united states, 339 u.s. 816 (1950). 411 united states v. classic, 313 u.s. 299 (1941). classic challenged louisiana’s non-racial restrictions on voting in primary elections at a time when louisiana also barred blacks from voting in primary or general elections. although classic did not challenge these racial restrictions, it was the key to striking down such racially discriminatory laws. significantly, the louisiana policy that classic did address was based on state laws, and under frankfurter’s later jurisprudence of almost always deferring to state legislatures, he should have opposed this outcome. instead, he voted with the classic majority in what was a four to three decision. 412 smith v. allwright, 321 u.s. 649 (1944). see also terry v. adams, 345 u.s. 461 (1953) (frankfurter, j., concurring). 413 sipuel v. oklahoma state board of regents, 332 u.s. 631 (1948); sweat v. painter, 339 u.s. 629 (1950); mclaurin v, oklahoma state regents for higher education, 339 u.s. 637 (1950). 414 347 u.s. 483 (1954). he was also past of the unanimous majority in brown ii, 349 u.s. 294 (1955). 415 347 u.s. 497 (1954). 416 muir v. louisville, park theatrical association, 347 u.s. 971 (1954). 417 gayle v. browder, 352 u.s. 903 (1956); plessy v. ferguson, 163 u.s. 537 (1896), 418 naacp v. alabama ex rel. patterson, 357 u.s. 449 (1958). he took a similar position for a unanimous court in bates v. city of little rock, 361 u.s. 516 (1960). 419 oyama v. california, 332 u.s. 633 (1948); takahashi v. fish and game commission, 334 u.s. 410 (1948). 2024] the tragedy of felix frankfurter 1149 after more than a decade of taking on segregation, in 1958 the court was able to reiterate that “separate but equal” had no place in american life. the case, cooper v. aaron,420 involved attempts by officials in arkansas to circumvent a federal court order to integrate little rock’s central high school. this was the first time since brown v. board of education that the court had an opportunity to speak about segregation in public schools. by this time, there were three new members of the court, and within the court there was a strong sense that the country, once again, should see the unanimity that the court had in brown. tactically, the court decided on a per curiam opinion, which would not have a single author. the court heard the case in late august 1958 as part of a special term—the first in five years—so that the school officials would be on notice to allow the black students to enter central high when the new school year began in september. although he supported an end to segregated schools in brown, in the little rock case frankfurter urged chief justice warren to delay ordering that the school desegregate to placate what frankfurter considered to be southern moderates. frankfurter had no actual evidence that such moderates were active in arkansas, or anywhere else in the former confederate states.421 the lawyer for the board asked for a twoand-a-half-year delay,422 which was hardly “moderate.” the day after the argument, “the court announced a short, unsigned decision drafted by frankfurter and harlan” upholding the lower court and ordering the school to desegregate.423 justice brennan then circulated drafts of an opinion which could be the basis of the unanimous per curiam opinion. frankfurter read the draft and commented on it. brennan also proposed, based on a suggestion from frankfurter, that all nine justices sign the per curiam opinion. after reading brennan’s final draft, frankfurter wrote him a note saying, “you have made me content,” indicating he would sign the opinion.424 this would be the first time in supreme court history that all justices would sign a per curiam 420 358 u.s. 1 (1958). 421 the only exception to this were in some private, mostly catholic, schools that accepted integration. see library of congress, school segregation and integration project, https://www.loc.gov/collections/civil-rights-history-project/articles-and-essays/schoolsegregation-andintegration/#:~:text=he%20explains%20how%20the%20catholic,excommunication%20and %20we%20have%20integration (noting that “lawrence guyot, who later became a leader in the student nonviolent coordinating committee, grew up in pass christian . . . [and] explains how the catholic schools were desegregated there: ‘the catholic church in 1957 or ‘58 made a decision that they were going to desegregate the schools. they did it this way. the announcement was we have two programs. we have excommunication and we have integration. make your choice by friday. now there was violence going on in louisiana. . . . i learned firsthand that institutions can really have an impact on social policy.’”). see also mark newman, desegregating dixie: the catholic church in the south and desegregation, 1945-1992 (2018) 138-168; and daniel hutchinson, catholics and jim crow: recent scholarship on southern catholicism during the civil right movement 12 j. of southern religion (2010), https://jsr.fsu.edu/volume12/catholics%20and%20jim%20crow%20review%20essay.html. 422 snyder, supra note 4, at 651-52. for much of snyder’s discussion of the background to this case, see id. at 635-65. 423 id. at 652. 424 id. at 653. https://www.loc.gov/collections/civil-rights-history-project/articles-and-essays/school-segregation-and-integration/#:~:text=he%20explains%20how%20the%20catholic,excommunication%20and%20we%20have%20integration https://www.loc.gov/collections/civil-rights-history-project/articles-and-essays/school-segregation-and-integration/#:~:text=he%20explains%20how%20the%20catholic,excommunication%20and%20we%20have%20integration https://www.loc.gov/collections/civil-rights-history-project/articles-and-essays/school-segregation-and-integration/#:~:text=he%20explains%20how%20the%20catholic,excommunication%20and%20we%20have%20integration https://www.loc.gov/collections/civil-rights-history-project/articles-and-essays/school-segregation-and-integration/#:~:text=he%20explains%20how%20the%20catholic,excommunication%20and%20we%20have%20integration https://www.loc.gov/item/afc2010039_crhp0005/ https://jsr.fsu.edu/volume12/catholics%20and%20jim%20crow%20review%20essay.html 1150 colum. j. race & l. [vol. 14:1086 opinion, and it would signal to the nation that the court was still unanimously in favor of school desegregation. it seemed like all the justices were on board. but then frankfurter announced that while he would sign the per curiam opinion, he was also going to write a concurrence. all eight of the other justices were furious. harlan and black, who by this time were his closest colleagues on the court, tried to talk him out of it. but frankfurter was adamant, only agreeing to publish his concurrence a week after the opinion was announced.425 frankfurter’s action in cooper v. aaron and his insistence on writing a concurrence after everyone was on board, including frankfurter himself, illustrates his failure as a justice. snyder explains frankfurter’s behavior by saying he was “a bad politician.”426 but this is quite wrong. frankfurter’s whole career demonstrates the opposite. this includes his ability to stay in the taft administration even as he opposed taft’s reelection and then serve in the wilson administration, after opposing his election. one of his political skills was his ability to make friends with the right people, like henry stimson and frank roosevelt, and to serve as an advisor to fdr, even after he was on the court and was presumably “above” politics. frankfurter’s ability to place his students and friends in places of power is another example of his extraordinary political skills. the issue in aaron v. cooper was not that frankfurter was a “bad politician,” but that after he went on the bench, he became increasingly egotistical, self-centered, judgmental, and intellectually rigid. his “fault” was that he could only get along with people he could dominate, unless they were clearly more powerful than he was, like holmes, brandeis, stimson, or roosevelt. as one scholar notes, the “entire episode of frankfurter’s separate opinion in cooper v. aaron suggests not so much his passion for standing alone on the court as his compulsion to drive his brethren away.”427 in his diary frankfurter reported on conversations he had with other justices, showing that the interactions with them were “suffused with hectoring, condescending self-righteousness.”428 in fact, frankfurter was an excellent politician, but he was a terrible colleague, who could not compromise or collaborate with eight other men who were his equals in power. furthermore, frankfurter could never accept that most of his fellow “brethren” were as smart or talented as he was, and thus he was disdainful of almost all of them. his claim, only a few years after he came on the court that he was a better jurist than chief justice charles evans hughes, underscores his arrogance and his “chutzpah.”429 his last-minute refusal to support a fully unanimous opinion in cooper v. aaron shows that his ego, rather than successfully dismantling segregation, was what mattered most to him. fortunately, this act of selfcentered indulgence did not derail the power of the unanimous per curiam 425 id. cooper v. aaron, 358 u.s. 1, 20 (1958) (frankfurter, j. concurring). 426 snyder, supra note 4, at 648. at the same time, snyder also asserts chief justice warren was “a good politician but a bad constitutional lawyer.” because frankfurter did not like warren, it seems that snyder feels compelled to attack him. 427 burt, two jewish justices, supra note 13, at 52. 428 id. 429 wiecek, birth of the modern constitution, supra note 2, at 89. 2024] the tragedy of felix frankfurter 1151 decision. justice brennan, who wrote the opinion, did not need to enhance his ego by claiming it as his own. after cooper v. aaron, frankfurter joined a unanimous court protecting the arkansas naacp from state suppression,430 and concurred in a unanimous decision supporting the voting rights of black americans in georgia.431 in gomillion v. lightfoot, he wrote his only significant majority opinion supporting civil rights.432 it was an important case. tuskegee, alabama, had redrawn its boundaries to exclude almost every african american in the city. in colegrove v. green,433 in 1946, frankfurter had written for a six to three majority, that the court had no power to overrule a state reapportionment or lack of a reapportionment. in that case illinois had not had any reapportionment in its congressional districts for forty-five years. at the time of the case, congressional districts in the state ranged from 914,000 residents to just 112,116.434 frankfurter considered this a “political” question, not a legal one. frankfurter believed that the state legislatures should deal with these issues. he asserted that a decision that would make representation fair and meaningful was “hostile to a democratic system” because it would “involve the judiciary in the politics of the people.”435 this was typical of frankfurter’s refusal, or inability, to look at the reality of politics: no legislature was likely to voluntarily reapportion itself, since sitting members might lose their seats. but frankfurter did not think there was anything undemocratic about an eight-to-one disparity in population in the size of electoral districts.436 frankfurter took the same position in baker v. carr437 two years after gomillion. however, in gomillion, frankfurter departed from colegrove and agreed that the city of tuskegee had violated the fifteenth amendment because the city had redrawn its boundaries to disenfranchise almost every black voter it could reach. this was a powerful argument for racial equality and is probably frankfurter’s most lasting contribution to constitutional doctrine. it is often seen as his greatest opinion. gomillion would also be his last vote for civil rights and against racism. well before the brown decision (as well as after it), frankfurter had opposed racial equality or tried to limit decisions that attacked racism. while he clearly despised segregation, in some civil rights cases he worked hard to soften the language of the court, to “soft-pedal” an “uncompromising condemnation of racism.”438 in burton v. wilmington 430 bates v. city of little rock, 361 u.s. 516 (1960). 431 united states v. raines, 362 u.s. 17 (1960). 432 364 u.s. 339 (1960). 433 328 u.s. 549 (1946). 434 colegrove v. green, 328 u.s. 549 (1946), black, j., dissenting at 566. see also walker, in defense of american liberties, supra note 3, at 255-56. 435 colegrove v. green, 328 u.s. 549 (1946). 436 in dissent justice black also noted that the state legislature had not been reapportioned since 1901. id. at 567. illustrative of this discrepancy, in 1900 chicago had a population of 1,698,575 but by 1940 the city had 3,396,808 residents. in a city that had doubled in size no legislative districts had been reapportioned in forty-five years. https://physics.bu.edu/~redner/projects/population/cities/chicago.html 437 369 u.s. 186 (1962). 438 wiecek, birth of the modern constitution, supra note 2,at 670, in bob lolo excursion co. v. michigan, 333 u.s. 28 (1948). similarly, in sipuel v. board of regents of oklahoma, 332 u.s. 631 (1948), “he strove unsuccessfully to get [chief justice fred] vinson 1152 colum. j. race & l. [vol. 14:1086 parking authority, in a dissent, argued for the right of a state to maintain a segregated restaurant on state owned property, and to use taxpayer dollars to subsidize the racist policies of the restaurant.439 a month after gomillion, in shelton v. tucker,440 frankfurter wrote a dissent in a case involving black teachers, the naacp, and arkansas. at issue was a state law requiring that all teachers in public institutions— from elementary schools to state universities—report if they were members of any organizations or had contributed money to them. the law further required that they list any such organizations to which they belonged in the five years before the law was passed. because this was not a criminal statute, it could not technically be called an “ex post facto” law, but clearly it was designed to not only intimidate teachers but also set them up to be fired for exercising their right to freedom of association before the law was passed. the purported goal of the law was to prevent communists from teaching in the state, but in reality, the law aimed to expose anyone who was a member of the naacp or other civil rights organizations. this law was not a holdover from the mccarthy period. it had been passed at the “second extraordinary session of the arkansas general assembly of 1958”441—a session called to pass laws to prevent the integration of little rock’s central high school. the goal of the law was to intimidate black state employees from joining civil rights organizations, particularly the naacp, which had led the fight to desegregate arkansas’s schools. in addition, the law violated the first amendment rights of citizens to join legal organizations without intimidation. frankfurter, as he so often did, expressed his personal distaste for the law, even as he supported it. his opinion made almost no mention of little rock, race, or segregation and instead focused on trusting the state to act in an unbiased way. this was of course patently absurd. in the wake of cooper v. aaron, the state had closed the little rock schools rather than integrate them, and like all former confederate states, arkansas was thoroughly segregated and had a long record of violence and intimidation against blacks.442 as he so often did, frankfurter simply ignored reality. here frankfurter was willing to throw many black teachers to the tender mercies of an avowedly racist and segregationist governor (orville faubus), state legislature, local school boards, local prosecutors, and state judges. a year later, frankfurter was the lone dissenter in monroe v. pape, which involved chicago police officers who invaded the home of a black family without a warrant, forced the entire family to stand naked in front of the officers while they searched the house, and then arrested the to eliminate language from the per curiam opinion that might ‘serv[e] as a target for contention,’” wiecek, birth of the modern constitution, supra note 2, at 669-70. in another case involving race, omaya v. california, 332 u.s. 633 (1948), frankfurter attacked justice murphy’s concurring opinion in his diary, calling it “a long-winded soap-boxy attack against racism.” wiecek, birth of the modern constitution, supra note 2, at 664. 439 365 u.s. 715, 727 (1961), (frankfurter, j., dissenting). 440 364 u.s. 479 (1960) 441 id. at 480. snyder ignores this case. 442 for example, see moore v. dempsey, 261 u.s. 86 (1923) in which the supreme court overturned death sentences and long prison sentences for blacks in arkansas, who had defended themselves from white mobs, and were convicted at a trial surrounded by a mob. 2024] the tragedy of felix frankfurter 1153 homeowner and held him incommunicado for ten hours, before releasing him without any charges.443 eight justices believed the officers were liable under section 1983 of the united states code, which was based on reconstruction-era laws designed to protect african americans from statesponsored violence. frankfurter, while always claiming to abhor racial discrimination, was the only dissenter. he wrote a fifty-three-page memorandum arguing that the police could not be tried under the federal ku klux klan act of 1871, which was the origin of section 1983, but were instead only subject to state prosecutions.444 this dissent ignored the utter implausibility of illinois prosecuting the police officers for their behavior. frankfurter usually supported federal laws, but he would not do so to allow the prosecution of police for illegal and racially motivated violence against blacks. in trying to convince his colleagues to reverse the convictions of the police, he argued that the history of the ku klux klan act had not been briefed,445 and therefore the police should win. reflecting his life-long support for states’ rights, and his passive support for segregation in many cases, frankfurter simply refused to see the necessity of the federal government prosecuting rogue or racist policemen, since the states would not do it. it was not that frankfurter thought black lives did not matter, but he thought states’ rights mattered more. his lone dissent in monroe v. pape was consistent with his positions in other cases. burton v. wilmington parking authority, the last civil rights case frankfurter heard,446 involved a segregated restaurant in wilmington, delaware, operating in a publicly owned building. although seen as an “upper south” state, delaware had a long history of segregation and racism.447 indeed, delaware was one of only two states (the other was kentucky) that refused to end slavery after the civil war, doing so only when forced to by the thirteenth amendment. the majority of the burton court found that the restaurant constituted unconstitutional state action because the municipal agency not only owned the building where the segregated restaurant was located but was also involved in a number of aspects of its operation, including providing taxpayer support to help the restaurant stay in business. the court correctly concluded that the state’s action violated the equal protection clause of the fourteenth amendment. frankfurter dissented, once again putting on his hat as an advocate of states’ rights in the face of blatant segregation. in frankfurter’s world, states could not segregate blacks in schools, but the states could subsidize restaurants that refused to serve them. joining frankfurter were two recent conservative eisenhower appointees, john marshall harlan, ii and charles evans whittaker. once again, we see the early supporter of the naacp as “a 443 monroe v. pape, 365 u.s. 167, 202 (1961) (frankfurter, j., dissenting). 444 snyder, supra note 4, at 676. 445 id. 446 burton v. wilmington parking authority, 365 u.s. 715, 727 (1961), (frankfurter, j., dissenting). 447 see, e.g., neal v. delaware, 103 u.s. 370 (1881), where the supreme court reversed the conviction of black man because, more than a decade after the ratification of the fourteenth amendment delaware refused to allow any blacks to serve on juries. see also benno c. schmidt, jr., juries, jurisdiction, and race discrimination: the lost promise of strauder v. west virginia, 61 tex. l. rev. 1401 (1983). 1154 colum. j. race & l. [vol. 14:1086 liberal turned conservative justice.”448 frankfurter’s dissents in these cases and others, on a court that was dismantling segregation, illustrate that whatever he was before 1939, from the beginning of his court years he was conservative and sometimes reactionary. these last three dissents against equal justice and in favor of racism, near the end of frankfurter’s judicial career, were not unique. while he often supported racial equality, as already noted, he was inconsistent and at times oblivious to the reality of racial discrimination. as his painful concurrence in cooper v. aaron demonstrates, he could not even be trusted to support an outcome when he said he would. thus, while usually supporting integration, frankfurter was also inconsistent in many cases involving racism in american life. he dissented in screws v. united states, where the court upheld the power of the united states to prosecute a georgia sheriff who beat a handcuffed black man so badly that he soon died. the court described this as “a shocking and revolting episode in law enforcement,” but frankfurter objected to using a reconstruction-era statute to protect the civil rights of african americans in the south, arguing that the statute was unconstitutionally vague.449 in part, this decision reflected frankfurter’s unwillingness to interfere with oppressive police tactics, often used against blacks. this case was similar to the position he later took in monroe v. pape,450 as the lone dissenter in an equally shocking case, although one that did not lead to a death. in adamson v. california451 frankfurter wrote a concurrence as part of a five-vote majority with the most conservative members of the court, refusing to extend a right against self-incrimination in a criminal case involving a black defendant.452 while a due process case, rather than a civil rights case, adamson reflected the reality that black defendants (like adamson) were more likely to be convicted that whites. in perez v. brownell, frankfurter wrote the majority opinion for a five-to-four court, upholding the eisenhower administration’s claim that someone born in texas, who was mostly raised in mexico, had lost his citizenship when he voted in one mexican election and failed to register for the draft during world war ii.453 here frankfurter, took a very hard line in a citizenship case involving a racial minority, just as he had against a member of a religious minority in girouard v. united states.454 448 snyder, supra note 4, at 4. this is another case snyder ignored. 449 325 u.s. 91 (1945). 450 monroe v. pape, 365 u.s. 167 (1961). 451 adamson v. california, 332 u.s. 46 (1947). 452 id. 453 356 u.s. 44 (1958). 454 328 u.s. 61 (1946). he took an equally hard line in his dissent in trop v. dulles, 356 u.s. 86 (1956), where the majority prohibited the u.s. government from taking american citizenship away from a soldier who had briefly deserted (for less than twentyfour hours) and then willingly returned to his military post. the court held that it was “cruel and unusual punishment” to make someone “stateless” for this relatively minor offense. frankfurter had no problem making the former soldier stateless for this minor and short-term infraction. it is again worth noting that frankfurter almost always sided with the federal government except in cases involving civil rights and police brutality, like screws and pape; in those cases, he objected to using federal civil rights laws to vindicate civil rights. 2024] the tragedy of felix frankfurter 1155 on balance, frankfurter was often inclined to support civil rights and racial equality but was never on the cutting edge of these issues. that he wrote only one important majority opinion in a civil rights case—in gomillion—speaks loudly about how, on the bench, he abandoned his early support of the naacp and became increasingly conservative and disconnected from the reality of american race relations. his opinions and memos in screws, pape, shelton, and the wilmington restaurant case, his behavior in cooper v. aaron, and his persistent support for states’ rights illustrate why scholars have been correct in portraying “frankfurter as a judicial failure, a liberal turned conservative justice, and as the warren court’s principal villain.”455 c. reapportionment in his last case, frankfurter wrote a long dissent in baker v. carr,456 which required that state legislative districts be apportioned on the basis of population—under the theory of “one person, one vote.” the case came from tennessee, which had not reapportioned the state legislature since 1901. as a result, representation was skewed in ways that made a mockery of democracy and should have deeply influenced a “democratic justice.” for example, hamilton county (which included the city of chattanooga) was nineteen times larger than tiny moore county. but each had the same number of representatives in the state legislature. the same was true in other states as well. in vermont, one legislative district had only 238 people, while another had about 33,000 people. one state senate district in los angeles, california had about six million people in it, while another california state senate district had about 14,000 people.457 frankfurter argued that this was a “political question” and “emphasized that the court should leave purely political questions to the elected branches and to the people themselves.”458 but frankfurter ignored the reality that short of judicial intervention (or a civil war), there was no path to democratic change for reapportionment. the tennessee legislature simply refused to redistrict because that would have pushed many sitting representatives out of the legislature. it would also have shifted political power to the many large cities and their suburbs, and away from the tiny rural counties, where few people lived, but from which a hugely disproportionate number of state legislators were elected. to put it bluntly, there is no democratic “political” solution to absurdly unfair and unrepresentative apportionment if the political system itself is rigged. this was the case in tennessee and elsewhere. in a six to two decision, the court set the stage for massive reapportionment to create legislative districts that are substantially the same size. snyder argues that frankfurter’s dissent in baker v. carr was his “most prophetic,” but he never explains why he thinks that, or what the 455 snyder, supra note 4, at 4. 456 baker v. carr, 369 u.s. 186 (1962), frankfurter, j. dissenting at 266-330. 457 baker v. carr in paul finkelman and melvin i. urofsky, landmark decisions of the united states supreme court 327 (2nd ed. 2008). 458 snyder, supra note 4, at 710. 1156 colum. j. race & l. [vol. 14:1086 “prophecy” of supporting undemocratic representation means in a democracy. it is hard to understand why anyone would want to return to a system where representation is not based on population, and where six million residents of los angeles would have the same number of votes in the state senate as 14,000 rural californians. redistricting has become highly politicized. but that is hardly new. it has been around since 1812, when governor elbridge gerry of massachusetts invented the gerrymander.459 political fights over redistricting should be attractive to anyone interested in “democracy,” because these fights illustrate democratic politics at its best, provided there is a level playing field to begin with. baker v. carr created level playing fields across the country. the many political arguments over gerrymandering illustrate frankfurter’s notion of letting the democratic process play out. since baker v. carr, the political process in the states has determined the shape of electoral districts, with the courts only making sure they are not unconstitutionally based on race, as frankfurter seemed to believe in gomillion, and that they are as identical in size as possible. this is what a democratic justice, with faith in state legislatures, should have demanded. frankfurter “insisted that the best way to protect people’s rights was through the democratic political process.”460 but frankfurter opposed the requirement of one person, one vote, which is the essence of democracy. and this is precisely what we have today, with reapportionment being very much part of the political process. but before baker, it was not “democratic.” there could be no “democratic political process” when the process was rigged by legislative districts that effectively disenfranchised the majority of the people in many states. frankfurter’s opposition to reapportionment suggests that he did not really believe in a “democratic political process,” but like the conservative he had become, he favored the status quo of a rigged system. viii. conclusion in his biography snyder’s argues that frankfurter “treasured free speech.”461 but, but as william m. wiecek’s comprehensive history of the stone and vinson courts shows, frankfurter “consistently proposed judicial self-restraint, in civil liberties as well as economic issues.”462 he may have “treasured” free speech, but he often opposed it in his opinions. frankfurter’s record on free speech is enormously problematic, as illustrated by one of the last mccarthy-era cases. california deemed raphael konigsberg “morally unfit” to be a lawyer because he refused to answer questions about previous communist party membership.463 the court reversed the case, holding that his refusal was not evidence of bad character. as a co-founder of the aclu, frankfurter should have 459 paul finkelman, who counted, who voted, and who could they vote for, 58 st. louis univ. l. j. 1071, 1073-74 (2014) (describing the origin of the gerrymander and .showing a picture of the original political cartoon attacking it). 460 snyder, supra note 4, at 710. 461 id. 462 wiecek, birth of the modern constitution supra note 2, at 413. 463 konigsberg v. state of california, 353 u.s. 252 (1957). 2024] the tragedy of felix frankfurter 1157 supported this position because one of the major tenets of civil liberties is that private political views should not be a bar to entering a profession. forgetting his civil liberties background—or simply abandoning it— frankfurter dissented, joined by clark and harlan.464 snyder explains frankfurter dissented because he wanted to remand the case “to clarify the california court’s decision.”465 once again, frankfurter was more concerned about states’ rights than he was about free speech. four years later, when the case came back to the court, frankfurter was part of a five-justice majority, along with clark, harlan, and two other eisenhower appointees, that upheld a second california decision denying konigsberg admission to the bar because he would not cooperate with the investigation of his political views.466 here, frankfurter provided the deciding vote in support of the idea that the state had a right to question someone’s private political views before allowing the person to practice law. unfairly attacked by teddy roosevelt as a bolshevik, frankfurter was now firmly in the camp of cold war red-baiters. snyder defends frankfurter’s repressive decisions by claiming that, although he “treasured free speech and religious freedom” he “feared that overprotecting the first amendment undermined the government’s ability to meet people’s basic needs.”467 but it is not clear why expelling children from school for not saluting the flag, denying observant jews and christian sabbatarians the right to make a living and practice their religion, firing arkansas teachers for being members of the naacp, or denying konigsberg the right to practice law because he might have once been a communist, were necessary to “meeting the people’s basic needs.” if frankfurter had been a maker of “the liberal establishment,” he would have consistently supported freedom of speech and protected minorities, such as jehovah’s witnesses, japanese americans, religious jews, and blacks seeking to enter a restaurant in delaware, from oppression. he did not. if he had been the “democratic justice,” he would have worked to make sure that the political process gave the people a meaningful vote. but he did not. when he joined the court, frankfurter began to oppose civil liberties for religious minorities and to oppose federal prosecutions of police who abused black people. shortly after frankfurter went on the court, roger baldwin, the founder of the aclu, chatted with the new justice while both were summering on martha’s vineyard. baldwin told the justice, he hoped frankfurter was “still carrying on his traditions.”468 the man who had defended sacco and vanzetti, helped the n.a.a.c.p develop a plan for fighting segregation,469 fought for the rights of workers, and denounced the persecution of labor organizers immediately responded that 464 id. at 274 (frankfurter, j., dissenting). 465 snyder, supra note 4, at 627. 466 konigsberg v. state of california, 366 u.s. 36 (1961). unfortunately, snyder did not discuss this case. 467 id. 468 walker, in defense of american liberties, supra note 3, at 106. 469 id. at 90. kluger, simple justice, supra note 390, at 133. 1158 colum. j. race & l. [vol. 14:1086 as a justice he had “different responsibilities on the court. i am not an advocate.”470 it is hard to imagine other justices, who had been committed to protecting constitutional rights before going on the court, categorially arguing that in their previous positions they were effectively hired guns, advocating for a client, rather than trying to protect the constitutional rights of all americans. chief justice john marshall continued to support a strong national government after he left politics to serve on the court. justice john mclean did not abandon his lifelong opposition to slavery when he went on the court, as his important dissents in prigg v. pennsylvania471 and dred scott v. sandford472 demonstrate. chief justice salmon p. chase did not forget his career as an anti-slavery lawyer, senator, and governor or abandon his lifelong commitment to racial equality, just because he went on the court. the first justice john marshall harlan came to the court with a strong belief in legal equality for former slaves and their descendants,473 and continued to express that on the court. louis brandeis remained the “people’s lawyer,” supporting constitutional liberty and social justice from the bench. as a district attorney and then an attorney general in california, earl warren advocated criminal justice reform and brought that understanding of what the constitution commanded while on the court.474 thurgood marshall did not forget his lifelong commitment to civil rights, when he put on robes. nor did ruth bader ginsburg forget about gender equality when she went to the court.475 none of these justices always supported outcomes they might have argued for before going on the court, but they consistently supported the constitutional protections for justice that they had believed in before going to the court. other justices, including oliver wendell holmes, jr., charles evans hughes, hugo black, and harry blackmun, grew on the court, increasingly supporting substantive justice, due process, civil liberties, and civil rights. the tragedy of frankfurter is that he abandoned the constitutional rights and protections that he supported from his graduation from law school until he donned his robes. when roger baldwin asked him if he still supported civil liberties, frankfurter replied that as a justice “i am not an advocate.”476 but his response to baldwin was intellectually dishonest. he in fact had increasingly become an advocate for states’ rights, the status quo, and an aggressive nationalism that persecuted minorities. on the 470 walker, in defense of american liberties, supra note 3, at 106. 471 41 u.s. (16. pet.) 539 (mclean, j., dissenting) at 658. on the proslavery nature of prigg, see paul finkelman, story telling on the supreme court: prigg v. pennsylvania and justice joseph story's judicial nationalism, 1994 supreme court rev. 247. see also finkelman, supreme injustice, supra note 138. . 472 60 u.s. (19 how.) 393 (1857) (mclean, j. dissenting) at 539. 473 unfortunately, he was less protective of the rights of chinese immigrants and their american-born children. see gabriel “jack” chin, the plessy myth: justice harlan and the chinese cases, 82 iowa l. rev. 151 (1996). 474 his opinion in miranda v. arizona 384 u.s. 486 (1966), reflected his own policies against third degree interrogations in california. 475 significantly, while frankfurter gave his former colleague al sacks “carte blanche power to select his clerks,” he rejected sacks’s strong recommendation of ruth bader ginsburg, referring to her as “mrs. ginsburg.” snyder supra note 4, at 663. 476 walker, in defense of american liberties, supra note 3, at 106. 2024] the tragedy of felix frankfurter 1159 court he had become an advocate in opposition to civil liberties, civil rights, the free exercise of religion, due process or law, and democracy. i. introduction ii. from immigrant school child to harvard professor and presidential advisor iii. frankfurter’s protégés and the problem of judicial ethics iv. the new justice trapped in a time warp v. the new justice and world war ii a. the flag salute cases b. the japanese internment c. frankfurter and the holocaust vi. the “democratic justice,” his brethren, and the problem of ethics vii. the anti-democratic justice: from world war ii to the cold war a. the sunday closing cases b. racial justice, segregation, civil rights, and policing c. reapportionment viii. conclusion